Volume 24 — Iowa Reports

<p> Appeal from Clinton District Cowrt. </p> <p>Equitable action by a judgment creditor’, Lyon, to remove (before sale under execution) a cloud upon tbe title of his judgment debtors, Mcllvaine and Happer, to certain real estate in Clinton county, upon which his judgment is a lien.</p> <p>March 30,1859, Mcllvaine and Happer, being indebted to William L. Ewing in the sum of about $4,500, to William L. Ewing & Co. about $1,350, and to Ewing, Briggs & Co. about $400, made a mortgage upon the real estate in controversy, to said parties, to secure them in the pay. ment of said sums respectively. This mortgage was duly acknowledged, and was recorded on the first day of April, 1859. On the 15th day of April, 1859, the plaintiff, having a claim against Mcllvaine and Happer, commenced suit thereon in the District Court of Clinton county, and procured an attachment, which was, on the same day, levied upon the same real estate as that embraced in the mortgage to Ewing and others. Afterwards, and on the 18th day of April, 1859, Mcllvaine and Happer conveyed the same real estate to "William L. Ewing, by deed of general warranty, for a consideration of about six thousand dollars, as recited in the deed. On the 26th day of October, 1859, the plaintiff, Lyon, recovered judgment in his attachment suit against Mcllvaine and Ilapper for $1,066.33, and an order for special execution against the property attached. On the same day the mortgage was made to Ewing and others, Mcllvaine and Ilapper, who were residents of, and doing business in, Whiteside county, Illinois, made an assignment of their personal effects in the State of Illinois, for the benefit of their creditors, making therein a preference of some creditors over others. The assignment was accepted by the assignee, who caused the same to be recorded, and entered upon his duties thereunder.</p> <p>This suit was brought in September, 1860 ; the plaintiff claiming by his original petition that the absolute conveyance to Ewing was a merger and satisfaction of the mortgage to Ewing and others, and that his judgment lien was prior and paramount to the title conveyed by the deed. In March, 1862, by an amended petition, which was itself amended after trial in March, 1866, the plaintiff set up the fact that Mcllvaine and Happer made an assignment of all their property not included in the mortgage, at the same time they made the mortgage, which was done without the knowledge or request of the mortgagees, and that the mortgage and assignment together, constituted one transaction, and amounted to a general assignment, and was made in contemplation of insolvency, wherein preference was given to some creditors over others, whereby it was fraudulent and void under the statutes of this State; and that plaintiff was at that time a creditor of Mcllvaine and Ilapper.</p> <p>The District Court held, that the mortgage to Ewing and others, was, as against plaintiff’s claim, fraudulent and void, and that the property should be subjected to sale under plaintiff’s execution, and the title acquired under such sale should be free from any claim by reason of the mortgage to Ewing and others; and rendered judgment against defendants for costs. The defendants, the mortgagees, appeal.</p>

<p>1. Promissory notes latent infirmities. Where a note paf hearer is signed by a surety and left in the hands of the maker, with the understanding that it is not to be negotiated until the performance by him of a certain condition, its negotiation before the performance of such condition, does not constitute any defense against a bona fide holder.</p> <p>2.- stamps. Nor will the fact that the note was not stamped when intrusted to the maker, affect the right of a bona fide holder to recover. (Blackwell v. Denie, 23 Iowa, 63.)</p> <p>3. - PAYABLE TO BEARER: NEGOTIATION TO ANOTHER THAN PAYEE. The negotiation of a note payable to a payee or bearer, to another than and not to such payee, is not of itself sufficient to charge the ' taker with notice of a defect therein.</p>

<p>1. Jury! costs. After an appeal from a judgment of a justice in which the plaintiff recovered forty-five dollars debt and $21.65 costs, the plaintiff, having made a settlement with defendant, delivered to him a receipt which stated that the plaintiff, in consideration of twenty-five dollars, released and discharged the defendant from all actions, causes of action, debts, claims and demands in law or equity up to this date. In the District Court the defendant did not plead that, by the agreement of the parties, the plaintiff was to pay the costs, but simply set up the receipt or release: Held, that the question whether the release included the costs of the case before the justice, was one of law for the court and upon which the defendant had no right to demand a jury.</p> <p>2. Costs! AFFIDAVITS: PRACTICE. It is not erroneous for the District Court, to aid it in determining questions in relation to costs and as to who shall pay them, to receive affidavits for that purpose. The court in such case has a discretion to determine the matter upon affidavits or it may order the affiants to be brought before it and be subjected to an examination.</p> <p>8. Receipt: release.' A receipt which prima fade covers all claims, is susceptible of explanation, and it may be shown that it was not intended to embrace a particular subject.</p>

<p>1- Bail bond: failure of clerk to mark “ accepted.” The objection that a bail bond filed and approved by the clerk, was not also marked “ accepted ” by him as specified in section 4968 of the Revision, is technical and cannot affect the right of the State to recover upon the bond.</p> <p>2.-acceptance without justification. While an accused who is held to bail cannot demand a discharge upon tendering bond and surety, unless his bail justify as required by the statute, yet if a court or officer accepts the bail without requiring such justification, such fact will not render the bond void, nor discharge the bail from liability thereon.</p> <p>3. -DEFAULT : ERROR IN TITLE OF CAUSE. The fact that the title of a criminal cause in which a default is entered, omits the name of one of the defendants, does not vitiate the default, nor affect the right of recovery against the bail, when there is no reasonable question as to the identity of the cause.</p> <p>4. - re-arrest of accused. Nor does the re-arrest and holding for trial of the accused after the default has been entered, affect the right of the State to recover upon the forfeiture already taken.</p>

Replevin. — Plaintiffs were creditors of one Bower, a contractor on the St. Louis and Cedar Rapids Railroad, and on the 14th of December, 1866, took from him in part payment of their debt, certain shovels, scrapers, etc., then along the line of his work in Keokuk county. They took a bill of sale of these, duly acknowledged, but never recorded.

<p> Appeal from Keokuk District Court. </p> <p>Injunction. — The facts, as found by the court below, and which are not controverted, are as follows: October 16, 1858, a judgment was obtained before a justice of the peace against one Warner; plaintiff became surety on the stay bond, and judgment was entered by the justice in due form against the principal and surety, April 21,1859; a transcript of said judgment was filed in the office of the clerk of the District Court; June 11, 1859, an execution issued on this judgment, but was returned by plaintiff’s order, nothing being made thereon. In October, afterward, a second execution issued, and was placed in the hands of the deputy sheriff, who returned that he executed it on the twentieth of that month upon the following personal property to wit: One two horse wagon, one gold watch, ten acres of corn now standing in the field, etc. The property was offered for sale, but was not sold for want of bidders. It was left in the possession of Warner, the execution defendant, and the levy abandoned. It was not shown that plaintiff in execution had any knowledge of the abandonment, nor that he in any manner consented to it.</p> <p>Sherraden, the present plaintiff, knew of said levy, of the failure to sell, that the levy was abandoned, and the property left with Warner. He, at the time, had a bill of sale on all the property, except the corn, to secure him against liability on said judgment, but it was not recorded, nor did he agree that the property should be released from the levy. The carriage and watch were taken and sold on another execution. What was done with the other property does not appear. The property levied upon was sufficient to satisfy the judgment. This judgment is otherwise wholly unsatisfied, and on the 21st of September, 1866, an execution issued thereon, which plaintiff now seeks to enjoin.</p> <p>From these facts the court found that the levy and proceedings of the deputy sheriff under the execution of October, 1859, was not a satisfaction of the judgment, and accordingly dismissed the bill. Plaintiff appeals.</p>

The petition in this case recites that appellants are stockholders of the State National Bank of Mount Pleasant, organized and existing under the law of congress creating national banks; that the capital of said bank is invested in bonds of the United States; that said bank was assessed for the year 1866, as agent of its shareholders in the sum of $110,840 upon its capital stock; that at the June session, 1866, of the board of supervisors, appellants made application to the…

Dedication : implied easements : light and air by implication: destruction op easements, etc.—The following plat will' materially assist in understanding the facts involved in the controversy between the parties: James Eobinson originally owned in fee tbe lot in Iowa ^city, fronting on Clinton street 150 feet, and on'Washington street, 100 feet. On the south was a public alley running through the block. Shephard & Hess owned on the east of Eobinson.

Action upon the covenant against incumbrances contained in a deed conveying eighty acres of land. Breach, that the If. & M. Railroad company held a right of way conveyed to it by the defendant prior to the covenant sued on. Defense, that plaintiff knew of the existence of the right of way, and that it was in law no incumbrance. The cause was tried to the court, and judgment rendered for plaintiff for forty dollars. The defendant appeals.

This is an action at law, upon a promissory note made by appellees and payable to Stark & Olapp, a mercantile firm, by whom it was indorsed, before maturity, to appellant, one of the partners of the firm.

Suit in equity to enjoin the sale of an alleged homestead under execution. The plaintiff was formerly the wife of one Printz, and while she was so, and on the 13th of May, 1857, she acquired the title to a house and lot in Marshalltown- — -the property in controversy.

Plaxntiees claim, that, in 1860, a number of citizens of Wapello county offered a reward in writing, pledging therein the payment of $500 for the arrest of McComb, the murderer of Laura J. Harvey; “ that in March, 1864, plaintiffs found the said McComb in Davenport, arrested, brought and delivered him to the sheriff of Wapello county, where the murder was perpetrated, and where he remained until tried, sentenced and executed, etc., whereby they were entitled to the reward,”…

This action was commenced November 15, 1866. The petition makes this case: From April, 1857, to January, T858, plaintiff sold to the defendant, Thomas Sinnamon, good's and merchandise as per account annexed, some to the husband, some to the wife, but all were purchased and received for the use of the family of defendants; were necessaries, were thus used, the expense thereof was a family expense, within § 2507 of the Revision, and properly chargeable upon the property of…

The plaintiff, Eobert Stephenson, brought suit before a justice of thé peace, against Joseph Walden, upon an account, and caused an attachment to be issued, which was, on the 6th day of August, 1867, levied upon a county warrant, issued by Appanoose county in favor of Joseph Walden, for thirty-three dollars; the sheriff levying the writ received the warrant from the clerk, and receipted to him therefor.

<p>1. Grand jury: irregularity in record : bystanders. Where the record shows that the sheriff brought “ into court fifteen good and lawful men to serve as grand jurors,” eight of whom were different persons from those named in the precept, it is not error to overrule a motion, based on this condition of the record, to set aside an indictment found by such grand jury, when it appears that those returned not named in the precept were selected from the bystanders upon the failure of that number named in the precept to appear.</p> <p>2. -record : nunc pro tunc order. And in such case a mino pro tuno order may be made at a term subsequent to that at which the indictment was found, showing that the panel was thus filled.</p> <p>3. Intoxicating liqnor: evidence: indictment. Proof of the sale of intoxicating liquor at the place and within the time named is presumptive evidence of the commission of the offense’ in an indictment for nuisance, under the eighth section of the act for the suppression of intemperance (Bev. § 1564), which charges that defendant not only kept intoxicating liquor with intent to sell, but sold the same.</p> <p>4. -evidence. On the trial under an indictment based on said section,' a witness stated that what he knew about the location of the building named in the indictment, he obtained from the record, but also testified, that, from his examination of the city plat, and his familiarity with the lots and blocks in the neighborhood of defendant’s saloon, he was able to fix it upon the lot described. It was urged in an instruction offered by defendant, that, under these circumstances, the record was the best evidence and should have been produced. Held, first, that the record was not the best evidence. Second, that if it were, the question could not be raised for the first time in the instructions.</p> <p>5. -nuisance : amount OF fine. In an indictment for nuisance under said section (1564 of the Revision) it is not necessary to show that defendant has been previously convicted, to justify a fine exceeding twenty dollars. Section 1562 of the Revision does not apply to a prosecution of this kind.</p> <p>6. Orimínal laws judgment by agreement. The fact that there were several indictments pending in the court below against other defendants for a similar offense, and that, after a verdict of guilty was rendered in the case at bar, an agreement that the same entry should be made in the other cases, and the case at bar be appealed, and all the others abide the decision in it, does not invalidate the conviction in the case actually tried. Whether the convictions entered in the other cases, pursuant to the agreement, would be valid, qu&re.</p>

<p> Appeal from, Dallas District Court. </p> <p>Strother Bromfield and Jesse Bromfield, Jr., as executors of the last will of Jesse Bromfield, Sen., deceased, late of Randolph county, Indiana, brought their action by ordinary proceedings against Levi Thornburg, in the District Court of Dallas county, for the recovery of the possession of 320 acres of land in sections one and two of townships eighty-one, range twenty-eight, in said county. The defendant therein, Levi Thornburg, filed his answer, setting up an affirmative equitable defense.</p> <p>Afterward, Levi Thornburg brought his action by equitable proceedings, in the same court, against Strother Bromfield and Jesse Bromfield, Jr., as executors of the last will of Jesse Bromfield, Sen., deceased. The cause of action was the same as that upon which the equitable defense was based, but it was stated in the petition with greater particularity and more in detail. The said Thorn-burg, by his equitable action, seeks a specific performance of an alleged parol contract for the sale and purchase of the identical land for the recovery of the possession of which the Bromfield executors brought their ordinary action. The plaintiff, Thornburg, claims, that, in April, 186J, he made a parol contract with the defendant Strother Bromfield, as executor, etc., for the purchase of the land in controversy; that, at the time of the making of the contract, all the parties resided in ^Randolph county, Indiana, where the contract was made; that, after their first interview, Thornburg came to Iowa and looked at the land; that, upon his return, the contract was concluded, whereby Thornburg was to have the land for whatever three disinterested men living in its vicinity and selected by the parties would appraise it at; one-third the purchase price was to be paid down, and one-third each in nine and eighteen months; if the land should be appraised at five dollars per acre or less, Thornburg was to pay five dollars, but if appraised at five dollars or more, he was to pay the appraisement price; that Thorn-burg left and came to Iowa, and took possession of the lánds in four days after the contract, and under and pursuant to it; the deed was to be handed in three or four weeks to a relative of his, who was to hand over the money and notes.</p> <p>On motion of Thornburg, the ordinary action by the executors against him was transferred to the equity docket, and consolidated with his equitable action against the executors. The causes were tried together, and the District Court found for the plaintiff Thornburg; decreed specific performance of the parol contract, and rendered judgment for him in the ordinary action for the possession. The executors appeal.</p>

Principal and agent: authority oe agent, etc.— Plaintiff sues for the value of two lots of hogs, sold and delivered in October, 1866, to one Walker, as the agent of the defendants. That plaintiff delivered the hogs to Walker, is not denied. There is no contest as to the value of the hogs.

Principal and agent: extent oe agent’s authority: power to borrow money. — Action for money alleged to have been loaned by plaintiff to defendants. Answer— in denial. The evidence showed that the plaintiff loaned $300 to Walker, who is claimed to be the agent of the defendants. The general nature of Walker’s agency appears in the statement of the case of Adams v. Boies da Barrett, ante. He was defendants’ agent to buy and ship cattle.

Indictment for embezzlement founded on section 4244 of the Kevision.

Suit in equity to obtain a retrial of an action for the recovery of real property. The facts are unusually numerous and are exceedingly complicated. Held: that the plaintiffs therein were only entitled to a foreclosure for the one note held by them, and that the title to one-third (it being C. M. Meek’s interest), held under the trust-deed, was paramount to the mortgage.

Guardian’s sale : equitable estoppel erom receipt oe PURCHASE-MONEY BY WARD: CORRECTION OE DEED, ETC.The plaintiffs are the heirs at law, and the assignees of such heirs, of Hugh Pursley, deceased. The present petition, which is in equity, was filed June 30,1863. Plaintiffs claim the title to the south-west quarter of the northeast quarter of sec. 5, township Y8, range 21, of which the said Hugh was the owner at the time of his death.

Criminal law : variance : effect of, under the statute. — The indictment, founded upon section 1564 of the Revision, charges ’that the defendant, at, etc., on, etc., “ did use a certain building, viz., a one-story frame building on the north side of Main street, next door west from Chamber s' store, in Agency city, in Wapello county, Iowa, as a place in which to keep, and did then and there keep, intoxicating liquor with intent to sell, in violation of law,” etc. Plea — not…

This is a proceeding to vacate a judgment, and is brought under section 3501 of the Revision, to obtain the benefit of subdivisions 4 and 7 of section 3499. The petition was filed on the 21st day of March, 1867, and states, that, at the October Term, 1866, the defendant, Albaugh, in a causé entitled T. J. Moore, for the use of John Albaugh, v. Wm.

Eral action. — The property in dispute once belonged to Alice M. Zuber, the infant- child of J. J. Zuber. Defendants claim title under a deed made by the father, as the guardian of said Alice. Plaintiffs claim under a deed from the father, after the death of the child, and to whom the property descended, if the title was not divested by the guardian’s deed. The case was heard in equity, the answer setting up an equitable defense.

Petition in equity to quiet title in plaintiff to twenty-one feet off of the west side of lot one in block two in the town of Ashland, Wapello county, Iowa. The petition states that the property formerly belonged to Thomas Ping, the defendant, and that in 1853 or 1854, he sold and conveyed the same to David Warren; that the deed of conveyance was lost before the samé was recordeckand no record evidence thereof is now in existence.

Defendant in March, 1856, sold and conveyed to plaintiff a lot in Omaha, Nebraska territory. The deed expressed a consideration of $150, and recites that the grantor sells, conveys and quitclaims, and after describing the lot, covenants to warrant and defend the said premises against the lawful claims of all persons whomsoéver, except the United States.

Defendants bad tbe contract for constructing tbe B. & M. it. R. R. from Albia, in Monroe county, west, and entered into a contract with plaintiff for laying tbe track on a certain part of said road in Lucas county.

Action in equity to enjoin proceedings at law, and for an accounting, etc., etc. The petition is very long, and contains a detailed statement of facts upon which plaintiffs rely. Concisely stated, they are as follows: January 6, 1864, Mrs. Edwards was the owner of an undivided half of a printing, press and material, having sold the other half to I. J. Teagarden for $300.

Default for failing to answer amended rleadings : in equity. Petition by the plaintiff, a judgment creditor of W. F. Ayres, to redeem from a certain mortgage foreclosed without making plaintiff a party. The court below defaulted defendants because they did not answer in time, and refused, upon a showing, made for and against the application, to set such default aside. Defendants excepted and appeal. The other facts are shown in the opinion.

Purchase money lien : proof of fraud : lis pendens, etc.— The plaintiff was a judgment creditor of one W. Hoyt, Sr., and, in 1860, purchased at sheriff’s sale upon a fi. fa., issued on his judgment, all of the interest of Hoyt, Sr., in the 160 acres of land in controversy. In January, 1861, plaintiff obtained his deed for the property, from the sheriff.

Statute oe distribution: right oe widow : when it ' vests. — The facts upon which the legal questions in the present case arise, as well as the questions to be decided, are expressed in the following agreement of tbe parties, viz.: “In tbe month of January, 1860, John Pierson, Sr., died testate (so far as tbe same comes of making a will which did not dispose of more than about one-third [•$•] of bis estate), leaving an estate composed of personal property only; variously…

Petition in equity to foreclose a mortgage against M. A. Kitchen and Martha Kitchen, his wife, as mortgagors, and against Robert R. Stone, as junior mortgagee. There was a judgment of foreclosure as to the mortgagor, but the petition was dismissed as to the defendant Stone. From this latter part of the judgment the plaintiff appeals. The further necessary facts are stated in the opinion.

Petition in ordinary on a note made by tbe defendant to the plaintiff for furniture. The answer set up a cross-demand against the plaintiff, based upon a conveyance of real estate made by the plaintiff to the defendant in July, 1862. The conveyance purported to be in consideration of three thousand four hundred dollars (but was in fact made on exchange of lands), and conveyed three different parcels or descriptions of real estate.

Petition in ordinary to recover dam'ages for injuries resulting from being overturned in one of defendant’s coaches. The answer is in general denial. There was a jury trial, verdict for plaintiff for $375, and judgment thereon, from which the defendant appeals.

This case relates, to the same transaction, referred to in the cases, between the same parties, reported in 17 Iowa, 579, and 18 id. 482. Plaintiff now seeks to recover the interest on the note from November, 1861, to November, 1863, and the foreclosure of the mortgage.

Homestead: practice, etc.— The present contest is between the plaintiff and Vulmer, the appellant. In April, 1857,' Pfiffner alone, his wife not joining, executed a mortgage upon his homestead to Yulmer, which was duly recorded. This is the oldest instrument in controversy. Afterward, in September, 1857, Pfiffner alone, his wife not joining, executed another mortgage to Theriot upon the same property, which was also recorded.

Plaintiff, being tbe owner of forty acres of improved land in Louisa county, exchanged it for a quarter section, unimproved, in Hardin county, and $100 in money. This was in October, 1864, and in February following, he commenced this suit, to rescind said contract, having tendered a deed for the land in Hardin, the $100 in money, and demanded a reconveyance of the forty.

Robert J. Roddan died January 27, 1867, in early infancy, his father being dead, and left no brother or sister. TIis mother, Laura C., survived him, and intermarried with one Ayres. She was his guardian, and received, as such, a large amount of money, and also the rents of certain lands, and has since deceased.

Action upon a foreign judgment, of which the following is a copy: “And now, February 9, 1859, defendant enters a rule on the plaintiff to declare on or before the first Monday of March next, or judgment (exit). Served February 9, 1859, on 01emmer& Dunn personally, by making known the contents, and giving them a copy of the same, says Geo. Wright, sheriff, fees fifty-five cents.

Plaintiffs, citizens and tax payers of Tama county, by their petition, seek to restrain the Iowa Central Railroad company and others from appropriating or using certain swamp lands, or the proceeds thereof, in or about the construction of said road through said county. The injunction was granted; afterward, on defendant’s motion, dissolved, and from this order plaintiffs appeal.

This is a suit in chancery. Plaintiff avers in his petition that he has been, since the year 1865, the owner of a certain house and lot in East Des Moines, Polk county, duly assessed for that year at $2,500, which was a fair and reasonable valuation, and was so passed upon and approved by the supervisors acting as a board of equalization for said year of 1865.

State boat law; jurisdiction oe eederal courts in admiralty; how par exclusive, etc.— This action was brought in the District Court of the county of Woodbury, in this State, against “ The Steamboat Mollie Dozier.” It was commenced under the statute of Iowa (Rev. ch. 148) entitled “Actions against boats and rafts.” The boat by name is the sole defendant.

Plaintiffs, Susan A. and S. R. Carpenter, were married, December, 1865, and lived together until January 6, 1866, when said S. R. Carpenter borrowed a team of J. M. Bryan and ran away with it, feloniously appropriating it to his own use, and intending to abandon his said wife and escape from the county.

Action in equity to set aside a sheriff’s sale and deed of certain real estate — lots 103 and 104 of McCabe’s addition to Mount Pleasant. The facts are stated in the opinion. There was a judgment for the defendant in the District Court, dismissing the plaintiff’s petition. The plaintiff appeals.

<p> Appeal from Mahaska District Court. </p> <p>Paupers: liability or county: power or township TRUSTEES : DELEGATION OR POWER BY SUPERVISORS TO CLERK, etc. — Plaintiff is a physician. As such, he rendered services to certain poor sick persons at the request- of two of the trustees of the proper township. Bev. §§ 1387, 1388. There is no poor-house in the county. The services were rendered between February 20 and April 21, 1866. The persons attended by the plaintiff were poor, sick with small-pox and confined in the pest-house (so called). There was no session of the board of supervisors during the time the services were being performed. The services, at the price agreed upon by plaintiff and the trustees, amounted to $245; and the court finds that they were reasonably worth that sum. The board of supervisors rejected the plaintiff’s claim, which was presented at the first session of the board after it accrued. Whereupon plaintiff brought this action in the District Court.</p> <p>The county denies liability; and it bases its defense mainly upon the following resolution of the board, passed prior to the rendering of the services sued for, to wit:</p> <p>“ Resolved, that, when any duties are to be performed or acts done during the vacation of the board, which cannot be done without too much delay or inconvenience to the board, then the clerk of the District Court may perform such duties as contemplated by article 12, chapter 22, of the Bevision of 1860; provided, in relation to roads, said clerk shall only act upon business previously presented to this board.”</p> <p>The District Court found that the trustees had the power to, and that they*did, employ the plaintiff; that he rendered the services; but it also found that it was the duty of the trustees to report the cases to the clerk of the District Court, that he, as the authorized agent of the county, might have granted or denied further relief; that the county is only liable to plaintiff from the time of his employment by the trustees, until these cases could reasonably have been reported by the trustees to the clerk, and acted upon by him, which would be within three or four days; that plaintiff’s services during such time were reasonably worth $75, for which the court gave him judgment. The claim for the rest of the services the court rejected, because.the trustees did not report the case to the clerk of the District Court. .</p> <p>Plaintiff appeals.</p>

Correcting record : power oe District Court. — Action commenced at law on a covenant of general warranty in a conveyance of real estate, with breach duly assigned. Answer, setting up a defense, in its nature, equitable. On defendant’s motion the cause was transferred to the equity docket. Trial and decree for plaintiff. Defendant appeals.

<p> Appeal from, Keokuk District Court. </p> <p>This action was brought to recover certain lands in Keokuk county. The petition sets out that the plaintiffs, George TV. Shawhan, aged twenty-one years, Sarah E. Shawhan, aged eighteen years, and Hannah O. Shawhan, aged seventeen (who sues by her next friend, George TV. Shawhan), are children and heirs at law of Benjamin P. Shawhan, who died intestate, May 1, 1852, seized of said lands. The relief asked is the recovery of said realty, which is in the possession of defendant, and $300 damages for rents and profits. By an amended petition, James E. Philip, executor, and Emanuel Loffer, are made defendants.</p> <p>The answer of the defendant, Henry Loffer, avers that he has been, for thirteen years, in possession of the lands, and claims that the action is barred by the statute of limitations. It also sets out, at length, the title under which the land is held by him, being acquired through an administrator’s sale, in a proceeding had in the County Court for the purpose of setting apart the dower of Maria A. Shawhan, the widow of said Benjamin P. Shawhan, deceased. It is shown that a part of the lands have been conveyed to the parties made defendants by the amended petition. The answer claims that the action is also barred, because defendant’s title is based on an administrator’s deed, and more than five years had elapsed after the administrator’s sale, and before the commencement of the suit.</p> <p>The cause was tried by the court, without a jury, and judgment rendered in favor of plaintiffs, Sarah E. and Hannah A., for one-ninth each, of the lands and $266t6A damages. Judgment was rendered against plaintiff, George W. Shawhan. Both plaintiffs and defendant appeal.</p> <p>From the bill of exceptions, it appears that the cause was submitted to the court on the following facts:</p> <p>Benjamin P. Shawhan died, May 8, 1852, seized of the lands in controversy, leaving, surviving him, the following named children, of the respective ages below stated, viz.-; Joseph Henry, aged twenty-eight years; Daniel William, aged twenty-six years; Evaline E., twenty-five years; George W., aged twenty-four years, in January, 1867; Sarah Elizabeth, nineteen years, April 5th, 1867, and Hannah O., seventeen years, January 14, 1867 — the three last named-, plaintiffs in the suit; that defendant was in the possession of the lands, and that the rents and profits thereof for the six years prior to the commencement of the suit were worth the sum of $266. This was the evidence for the plaintiff.</p> <p>The defendant, to support his title to the land, introduced the following evidence:</p> <p>First. The deed of Joseph Lowe, executor of the estate of Benjamin Shawhan, deceased, conveying to defendant, Peter Loffer, for the consideration of $1,500, the lands in controversy, being 320 acres. The deed bears date July 6,1855, and appears to have been properly acknowledged on that day; it bears, of the same date, an indorsement of approval of the county judge, “ in consideration of the regularity of all prior proceedings concerning the sale of the above described realty.”</p> <p>Second. The record book of the County Court, containing the following papers and proceedings, viz.:</p> <p>1. The petition of Hannah A. Shawhan, filed May 10, 1852, asking the appointment of referees to set off her dower in the lands in controversy, to which she is entitled as widow of said Benjamin P. Shawhan, giving proper and particular description of each tract.</p> <p>2. The record entry of the filing of said petition, describing properly the lands, and the order fixing the first Monday (6th day) of J une, as the day for the hearing upon the petition, and this further order, viz.: “ personal notice is required to be served on Mills S. Reeves, the executor of said estate, one notice to be posted up at court-house in Lancaster, and one notice at Sigourney, in said county.”</p> <p>3. The record entry of the action of the court on the day fixed (June 6th), which directs the dower of the widow to be set apart by metes and bounds, and appoints referees for that purpose.</p> <p>é. The commission or precept, addressed to the referees by the county judge, directing them to admeasure the widow’s dower in the lands of the decedent, particularly describing the same, and having indorsed thereon the proper oath of referees duly administered to them.</p> <p>5. The report of the referees, setting out, that they had made examination of the lands, and found, that the dower could not be set apart without great injury to the property, stating, also, other reasons why it should not be admeasured, and returning an appraisement of each tract of land, amounting in the aggregate to $1,275. Upon the report appears an indorsement of the county judge confirming the same.</p> <p>6. The record entry of the appraisementof the referees, and the approval and confirmation of their report by the court, with an order for the sale of the lands by the executor.</p> <p>7. The commission or precept, directing and authorizing the executor to sell the lands which are particularly described therein, dated July 15, 1853.</p> <p>8. The report of the sale of said lands by the executor, Mills S. Reeves, for $1,500; a part of the purchase-money to be in deferred payments, and a deed to be made at the last payment, November 3, 1854. The report was filed November 8,1853.</p> <p>9. Record entry, of date July 6, 1855, of the approval by the court of the deed made by the executor, Joseph Lowe, of the lands in question, to Henry Loffer. It recites, that, “ in consideration of the regularity of all the proceedings, in relation to the sale and conveyance of 'the above described lands, the aforesaid deed is hereby approves!/ and a certificate of approval bearing even date herewith is. attached to the same.”</p> <p>10. 'Record entry dated March 24,1855, of the appointment" of Joseph Lowe, executor, in the place of Mills S. Reeves-/ resigned, and of his qualifying by giving bonds and taking proper oath.</p> <p>11. An original notice, proved by the county judge to be one of the papers found in his office, and pertaining to the executor’s sale of said land. It is addressed as follows: “To all interested in the estate of Benjamin P. Shawhan,” and states, that the widow, Maria Ann Shawhan, has filed her application in the County Court, asking her dower in the lands of said estate to be set apart by metes and bounds, and that the application is set for hearing on the first Monday in June, 1853. It is dated May 10; 1853, and served upon the executor, accepted by proper indorsement, on Monday.</p> <p>Third. It was proved by parol testimony (plaintiffs objecting thereto), that copies of the said notice were posted at the places directed, by the order of the County Court, on the 10th day of May, 1853, and on the same day it was read to the family of the deceased, all the children believed to be present when it was so read, and that it was served also on the executor, acceptance, of service being made by him in writing upon the notice.</p> <p>Fourth. Defendant proved, that he went into the possession of said lands May 1, 1854, under the title he acquired by his purchase of the’ same from the executor, and has been in the quiet and peaceable possession thereof since that time; that he has paid all the taxes assessed against said lands, since he has been in possession thereof, and that the price he paid therefor was as much as they were worth at the time of his purchase.</p> <p>It is believed that the above is a correct, as itfis-a'ful statement of the substance of the pleadings and evidgáq</p>

<p> Appeal from Mahaska District Court. </p> <p>Plaintiff seeks to recover $6,000 for false representations and a breach of warranty in the sale to him, by defendant, of a patent right for “a new and useful process for making sugar from sorghum and other cane.” Trial, verdict and judgment for $2,800, and defendant appeals. For other -facts see the opinion.</p>

In 1856, Edwin Ha.ll, then in life (since deceased), and Ms wife, tbe defendant in this cause, were the legal owners of a tract of land adjoining the town of Port I)es Moines.

The facts of this case are substantially as follows: Plaintiff, in August, 1861, held a title bond from one White, for forty acres of land. The purchase price was all paid and he entitled to a deed.

This is an action on an injunction bond. Tbe petition avers that the suit in which the bond was given was dismissed and the injunction dissolved, and claims judgment for the damages sustained by plaintiff on account of said injunction.

Action at law, upon a promissory note, against defendant as administrator of the estate of Isaac H. Wiley, deceased. The petition, in addition to other proper averments, alleges that said note sued upon was filed in the County Court, within six months from the date of giving of notice by £he executor, of his appointment, and that the suit is prosecuted with the permission of the County Court. These, as well as all other material averments, are denied in defendant’s answer.

This is an equitable proceeding, under chapter 127 of the Revision, to subject certain property and dioses in action of defendant, E. II. Gibbon, to a judgment, recovered against him, by the plaintiffs herein, in the District Court of Lucas county, for $1,951.54, and $4.45 costs, April 30, 1862, with interest at ten per centum per annum. The facts of the case are sufficiently stated in the opinion of the court.

Mandamus. — The petition sets forth, that plaintiff, Susan B. Clark, was born in the city of Muscatine, and has continued to reside therein up to the present time; that she is now twelve years of age, and sues by her next friend, her father, Alexander Clark, who is a resident freeholder and tax payer in the said city of Muscatine, and has been for many years past; that said city of Muscatine is an independent school-district, and the defendants, the board of directors, have…

Tender : must be kept good : when money to be paid into court. — Action for work and labor, commenced before a justice. Defense: denial — also set-off — and a plea of tender of $50 in money before suit brought, with this averment: that defendant is “ still ready and willing to pay any amount plaintiff is justly entitled to, and for this purpose deposits that amount here in court.” It was not deposited when the answer was filed.

Dedication: “ G-arden square”: statute op limitations. Petition in equity filed in February, 1866, by the city of Pella, in its corporate capacity, claiming against the defendants (the original proprietors of Pella, and who laid out the same), that a certain block of ground, designated on the plat of that place as “ Garden square,” was dedicated to the public; that the defendants, H. P. Seholte, and his wife (his voluntary grantee), deny the public right and obstruct the…

Action in equity to enjoin the sale, under execution, of lot four, block thirteen, in Yinton. The property in controversy formerly belonged to Joel W. Catlin, now deceased. Held: Keys, as administrator of Oatlin, brought suit against John H. Shields, upon the notes given for the property, and to foreclose the mortgage. No person other than John H. Shields was made defendant in said suit.

This suit was originally brought at law m attachkigjrt, against John B. Moody and Mary A. Moody. It appears'^ from the record, that the original court files were lost, at some date not given, and that, by order of court, the parties were required to file substituted papers.

Tax sale and deed. Primary and secondary evidence, etc. — Petition in equity. Cause tried by the second method by the court. Plaintiff is the fee simple owner, by a regular chain of title, of the forty acres of land in controversy.

Replevin for thirty-one head of work oxen. Plaintiffs claim title, and the right of possession of the property, under a chattel mortgage executed by one R. O. Dunham,,, October 7, 1865, to them, conveying five freight wagons, and twenty-five yoke of cattle, to secure to them an indebtedness of said Dunham of $1,750. The mortgage was executed in the city of Leavenworth, Kansas.

Plaintiee declares upon a non-negotiable note made by the appellant to “ The Iowa Central Insurance Co.,” making the payee a co-defendant. The indorsement on the note is as follows: “ For value received the Iowa Central Insurance Co., at Iowa city, do hereby assign and transfer the within note to A. Gr. Tiicker, and guaranty its payment, waiving demand and notice.” The petition contains but one count.

The petition of plaintiff shows, that he is the owner certain lands in Black Hawk county, through which a certain stream of water called Spring creek flows; the stream, in its natural channel, meanders through plaintiff’s land and flows off it near where it enters thereon; that a public highway crosses the stream at its entrance upon plaintiff’s land ; that defendant, acting as road supervisor, “willfully and maliciously intending to injure the property of plaintiff,”…

The plaintiffs, holding a judgment against one Ralph Dewey, seek by garnishment process to subject thereto certain property or credits of their debtor in the hands of the defendant. Defendant denies having in his hands property of Dewey, or being indebted to him in any amount. An issue is made by plaintiff upon this denial. A trial and verdict was had, and a judgment thereon for $806.86 rendered against defendant, who appeals'to thi3 court.

In this action plaintiff seeks to recover a balance due for hogs purchased for and delivered to defendant, upon a parol contract, and on an account for money advanced and services rendered. The answer is in denial. Defendant also pleads payment, and claims by his cross-action $254.35 as damages for the breach of a written contract. Replication in denial of this cross-action, and avemng that said contract had been rescinded.

A temporary injunction was granted at the time the writ was issued. At the final hearing in the District Court, the injunction was dissolved, and the writ and proceedings thereunder dismissed. The plaintiff appeals.

Action of replevin for a stock of dry goods and groceries. They were levied uj)on by the defendant as the property of W. H. Nicholas, under eighteen attachments, issued at the suit of that number of creditors of said Nicholas.

Replevin : eights oe joint tenants of peesonal pboperty. — This is an action of replevin for a mare, brought by F. F. Frans and Henry H. Frans, against Charles Young and Alexander Sewell.

This action was brought to recover the possession of a town lot in Moscow, Muscatine county, the plaintiff claiming the ownership thereof in fee simple.

This suit is brought upon a county warrant payable to Sandford Baldwin or order, and assigned by the payee to E. T. Seymour or bearer, and it is so set out in the petition. Yerdict and judgment for plaintiff. Defendant appeals. The other facts, necessary to a proper understanding of the case, are stated in tjie opiiiion.

Findings op pact : sale op chattels : tendee : consideration: measure op damages. — Action to recover damages for the neglect and refusal of the defendant to deliver, pursuant to an alleged contract, twenty-two head of cattle. No question is made upon the pleadings. The answer puts the plaintiffs upon proof of their case.

Suit in equity to set aside a contract for lands and to cancel deeds executed The plaintiff was the owner of lot 4, block 24, in Washington, Iowa; and the defendants were owners (the legal title being in the wife, Annette Moore), of the E. £ of S. E. -J- of Sec. 9, T. 72, R. 29 W., and N. E. J of S. E. J of Sec. 32, T. 73, R. 29 W., in Union county, Iowa.

Plaintiff’s petition (at law) claims as against the defendants the title to and possession of the south-west quarter of the north-west quarter, section 12, township 81, range 2, in Clinton county. The basis of his title is this: The land was entered by the defendant W. W. Kennedy, and tho title without controversy was in him until in February, 1856.

Plaintiff seeks to recover for the value of a horse, which he charges died from eating corn, carelessly and negligently left by defendants exposed on the common, in the village of Wilton, etc. Answer in denial— also alleging that defendants were dealers in grain; that they stored their corn in cribs on their own lot; that many other grain dealers stored in the same way in cribs on nninclosed lots; that of this plaintiff had knowledge; that he turned his horses out,…

Action by the plaintiffs against the defendant as a common carrier, for carelessly and negligently providing insufficient cars, and negligently managing the same, whereby plaintiffs’ cattle, which were being transported therein, from Clinton, Iowa, to Chicago, 111., were injured, and one of them killed. The cause was tried to the court and judgment rendered for plaintiffs for one hundred and eighteen dollars and costs. The defendant appeals.

The plaintiff, by his petition, seeks to enforce a mechanic’s lien for work and labor performed (to the amount of forty-six dollars) on a house, on the land of the defendant (the wife), under a contract with the husband, as the agent of the wife, for her use and benefit, with her knowledge and consent, and for which they promised to pay, etc. Demurrer sustained. Plaintiff excepted and appeals.

Suit in equity upon four written contracts, and for an accounting thereunder. There was a demurrer to the petition, which was sustained by the District Court. The plaintiffs appeal.' The further necessary facts will be found stated in the opinion.

<p> Appeal from Winnesheik District Court. </p> <p>This is an equitable proceeding to enforce the specific performance of a verbal contract to convey a right of •way. The petition avers, that the defendant agreed to sell and convey to the plaintiff a certain tract of land (describing it), and a right of way connecting the same with a certain public road, to commence at a given corner of the land, and thence over defendant’s land along a section line to the intersection thereof with said public road, and to be of such width as is necessary for the use of the plaintiff. The consideration to be paid by plaintiff for said land and said right of way was $500. Under this contract the defendant caused another, who held the title of the land, to convey the same to plaintiff, the consideration for the land and right of way having been paid or received, and the plaintiff went into the possession of the land and of the use and enjoyment of the right of way, and continued therein for near two years under said agreement, until the defendant interrupted such use by fastening up the way and denying plaintiff’s right thereto. No conveyance of the right of way has been executed by defendant. The relief asked is a decree requiring defendant to execute a deed for said right of way and securing plaintiff in the possession and enjoyment thereof. The answer of the defendant admits the conveyance of the land, as stated in plaintiff’s petition, but denies the agreement in regax-d to the x-ight of way, and avex-s that the consideration of $500 was paid for the land alone.</p> <p>A decree was rendered in accordance with the px’ayer of plaintiff’s petition. Defendant appeals.</p>

The substance of plaintiff’s case, as shown byfpilpetition, is this: In June, 1865, he employed defe¿da|jJJ^Ji his agent, to purchase for him a tract of land of residing in Pennsylvania, the land being in Winnesheik county, in this State, where the parties resided.

-v Suit in equity by principals against their cover the difference between the price paid themsifey him for certain lands, for the sale of which he was claimecbfo be their agent, and the value thereof. The District Court rendered judgment for the plaintiff for $1,600. Both parties appeal.

Taxation oe mortgages : statute construed,- etc. — The petition seeks an injunction against the defendant, as treasurer of Clayton county, to restrain tlie collection of certain taxes alleged to be illegal. .A general demurrer to tlie petition was sustained by the District Court, to which ruling the plaintiffs excepted and appeal. •The facts stated in the petition are, in substance, the following: James McGregor, Jr., died testate on the 24th of March, 1867; on the 2d of…

This was an action in chancery to foreclose two mortgages executed by defendants, Alexander Shaw and wife; the first to secure a note for $2,008.16, to J. A. Williamson, dated June 4, 1857, due in six months, and by him assigned, September 7, 1857, to J. Callanan, who soon .after assigned the same to plaintiffs; the second, to secure a note for $550, to plaintiffs, dated September 5, 1857. These mortgages were upon the same real estate.

Municipal corporations : power oyer streets, etc. : right oe way act, etc. — Tbis suit is brought by the city of Clinton in its corporate capacity.

Proceeding under section 3602 of the Bevision by the plaintiff, who claims title and is in possession of certain real estate, to require the defendants, who claim an adverse interest therein, to bring an action to try the title. The facts are sufficiently stated in the opinion. The defendants appeal.

<p>1. Executor and administrator! summary proceeding por discovery op assets: statute construed. Sections 3866 and 3867 of the Revision, authorizing the County Court to summon before it, and subject to an examination, a person suspected of having taken wrongful possession of any of the effects of the deceased, contemplates that the examination shall be confined to the person thus summoned; and it is not competent to introduce other evidence to contradict his statements or to establish the administrator’s claim to the property.</p> <p>3.-evidence: estopped. A person thus.subjected to an examination is not a witness within the meaning of section 3983, which provides, that no one shall be allowed to testify where the adverse party is the executor of a deceased person. But were it otherwise, the administrator, at whose instance the person is compelled to testify, could not make the objection.</p>

Insurance : construction oe policy, eto. — The defendant insured the plaintiff against loss or damage by fire and lightning for the term of five years, from July 21, 1865, on property described in the policy thus: “ On his dwelling house $400; grain in stack or crib $600; hay in stack $320; seven horses $750; cattle $275.

The defendant was attached as garnishee in the suit of this plaintiff against one H. A. Cleghorn. The defendant herein, D. C. Monty, made his answer as such garnishee, in which he denied having any money or property belonging to Cleghorn, or being indebted to him.

Action on a policy of insurance to recover on account of the loss of the building insured by fire.

Slander. — The petition charges, that defendant on, etc., in the presence and hearing of, etc., in a conversation had with, etc., of and concerning the petitioner, spoke and published of, etc., the following false, etc. Answer in denial, trial and verdict for plaintiff. Motion for new trial overruled, and defendant appeals.

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

Suit in equity to set aside a deed on the ground, of duress, fraud and oppression. The district court refused to set aside the deed, but by its j udgment required the defendants to pay the further consideration of $300. Both parties appeal.

<p>1. Limitation, statute of: when it begins to run. administrator. Where a cause of action, accrues to the estate of a decedent, instead of to the deceased while living, the statute of limitation, will not commence to, run, until the appointment of an. administrator. But if the statute has once begun to run in the life-time of the party entitled, it is, npt iutewipted by his subsequent death,, hut continues, and the cause of action survives, not accrues, to the personal representative.</p> <p>2. -injury. Where an act or omission causes a direct injury, an action may be instantly maintained, and the statute begins to run from the time the act was done, without regard to any actual damages or to any knowledge of the party injured, and is not suspended by his subsequent death.</p> <p>3. -RULE applied. The plaintiff’s intestate was thrown from a boat capsized in crossing a swollen stream in the line of route, and by reason of the negligence, of the defendants, who were common carriers operating a line of stage coaches, and, after some ten minutes of struggling to save herself, was drowned: Held, per Cole, J., that the cause of action accrued to the deceased, and that the statute began to run from the time she was thrown from the boat, instead of from the appointment of her administrator; per Wright, J., and Dillon, Ch. J., that the death in the present case comes within what is generally and legally understood as an instantaneous death, and that the interval of time between the injury and the death was so brief as that the statute did not begin to run in the life-time of the deceased, nor until the appointment of an administrator.</p> <p>4. - STATUTE CONSTRUED : COMMON LAW RULES. The provisions of our statute (Rev. §§ 2748, 4111) do not change the following common law rules of construction of statutes of limitation: First, that the statute begins to run from the time the cause of action accrues. Second, that if the statute once begins to run, no subsequent disability will suspend it unless the statute itself provides therefor. Third, that before a cause of action accrues or the statute begins to run, there must exist a cause of action, and a person authorized to prosecute it, as where a cause of action accrues to the estate of a deceased, the 'statute will not commence to operate until the appointment of an administrator.</p> <p>5. New trial: conflicting evidence. Where a question upon which there is a conflict of evidence is peculiarly within the province of the jury to decide, their finding thereon will be regarded as conclusive.</p> <p>G. Negligence: t.qrts : mutual negligence. Where the negligence of a party injured contributed directly to the injury, he cannot recover ; nor where there has been mutual negligence, and the negligence of each party was the proximate cause of the injury.</p> <p>7.-paramount negligence. While the general rule upon the subject of negligence, above given, is recognized, yet the defendants in the present case, by placing the plaintiff's intestate in the boat, under the circumstances disclosed by the testimony, cannot avail themselves of the imputed want of care, negligence, or conduct on • her part while in the boat, to defeat a recovery for the injury resulting from defendant’s primary and paramount negligence in causing her to be put therein. Cole, J., dissenting.</p> <p>8. Damages! DEATH from injury: action. Under our statute (section 4111 of the Revision) the riglit of action for a wrongful act producing death is in favor of, and the damages recovered accrue to the estate of the deceased, and not to his next of loin.</p> <p>9. -exemplary. Whether exemplary damages are allowed in an action brought by an administrator, for damages resulting to the estate, from the death of his intestate caused by the wrongful act of the defendant, — quere.</p> <p>10.-excessive damages : remittitur, fn such an action, eight thousand dollars awarded by the court below, was regarded as excessive to the extent of three thousand dollars, which the plaintiff offering to remit, judgment was rendered for the residue.</p>

<p>1. Evidence¡ criminal law: res gesta:. In a prosecution for murder committed while the deceased and the prisoner were journeying together, evidence of the statements of the deceased, while engaged in the journey, as to where they came from and where they were going, though not made in the presence of the prisoner, is admissible as part of the res gestae.</p> <p>2.-CONTRADICTORY STATEMENTS : SUPPORTING TESTIMONY. Where the credibility of a witness is sought to be impeached by proof of his having made or testified to, elsewhere, statements different from and conflicting with his testimony, evidence that he made statements long before the trial corresponding with his testimony is not admissible for the purpose of supporting him.</p> <p>3. -EXCEPTIONS TO the rule. But if a witness is charged with a design to misrepresent on account of his changed relation to the parties or cause, evidence that he made like statements before such change'of relations, is admissible; so, if it is attempted to be shown, that his evidence is a recent fabrication, or where long silence concerning an injury is construed against the injured party, it may be shown, that he made similar statements soon after the transaction in question.</p> <p>4. - CRIMINAL LAW: DECLARATIONS OP DECEASED. In a prosecution for murder in which one theory of the defense was, that the body found was not that of the person with the murder of whom the prisoner stood charged, evidence that such person before he left home informed the witness that he intended soon to leave and never make himself known to, or be heard from by, his family, was held inadmissible.</p> <p>5. -MEDICAL TESTIMONY : CONCLUSIONS NOT ADMISSIBLE. In Such a prosecution it appeared, that the head of the murdered man was found severed from the body, and taken by a physician and preserved in alcohol. On the trial, it was exhibited to the court and jury and identified by a number of witnesses for the State as the head of the person with the murder of whom the prisoner was charged. Thereupon the prisoner proposed to prove by two witnesses, who were physicians and surgeons, that on account of the natural and inevitable changes which the human body must necessarily pass through after death, and with which they were familiar from their professional knowledge, it was not possible for any one to identify the head. Held, that the evidence was not admissible, for the reason, that it proposed to give merely the conclusion of the witnesses instead of the facts leading to a conclusion which it was the proper province of the jury to determine from such facts. It would be competent in such case for the witnesses to state the character and nature of the changes produced by death, and to explain or illustrate to what extent this change had operated upon the head in question.</p> <p>6. - burden OF PROOF: ALIBI. When the death of a person alleged to have been murdered is prima fade established by the identification of a dead body, as his, the burden of proof is upon the prisoner to show, that such person is still alive. To establish a defense of this character, the same weight of evidence is necessary as that to sustain an alibi of the prisoner.</p>

Homestead: partition oe, etc. — In September, 1862, Koswell Size died intestate, seized of the forty acres of land in controversy. He left a widow and four children. Held: that the land was not subject to partition. The plaintiff excepted and appeals.

<p> Appeal from Dubuque District Court. </p> <p>This cause was submitted in October, 1867, at the argument term at Davenport, and an opinion then filed affirming the judgment of the District Court. A rehearing was allowed at the December Term, 1867, and thereon it was again submitted.</p>

' Creditor’s bill. 7— The amended petition charges, that the husband, Nelson NX. Fowler, was indebted to plaintiff and others; that he was insolvent; that he purchased some land (six acres) near Iowa Falls, in Hardin county, taking the title in the name of his wife; that he entered into possession, and made thereon valuable improvements, building a house, stable, etc., all with his own means and for the purpose of defrauding his creditors.

. In January, 1857, Webster sold to Perry for the alleged consideration of $300, and Perry was to pay this mortgage. In June following, Perry sold to the plaintiff a part of these lands — the said Webster acting in the place of and for said Smith; all parties having full knowledge of the mortgage to Kerns. The deed to Smith was not made nor delivered until in April, 1860.

<p> Appeal from Washington District Court </p> <p>This cause was here on a former appeal. 22 Iowa, 242. When remanded, it was tried to a jury, which found for tbe plaintiff, and assessed the damages at one cent. An offer by tbe defendant having been properly made, to confess judgment for an amount larger than the verdict, tbe court rendered judgment against the plaintiff for the subsequent costs.</p> <p>The plaintiff appeals, and bis only assignment of error is, that tbe court erred in its instructions to tbe jury.</p>

The action is founded upon the following instrument: “Waverly, July 37,1857. “ On or before the court-house in and for the county of Bremer, State of Iowa, is completed, I promise to pay to Beebe & Levally, or order, for the use of the county of Bremer, the sum of one thousand dollars, value received. “W. P. HARMON.” The petition alleges the due transfer of this instrument to the plaintiff, and that the court-house therein mentioned “ was fully completed on the 15th day of…

From the petition, it appears, that plaintiff was assessed upon moneys and credits in the sum of $10,000, and $900 upon certain lands, and improvements thereon, owned by him. Upon his application for the reduction of this assessment, the board increased it to the sum of $20,000 upon moneys and credits, on his own statement, made at the hearing of the application, that he was possessed of that amount.

Appeals from Muscatine District Court These cases grow out of and are connected with that between these same parties, reported in 18 Iowa, 474. After that case was affirmed and remanded, plaintiff sued upon the appeal bond, recovered, and defendants (in the second of the above cases) appeal.

Appeal from Delaware District Court Suit in equity for specific performance, and for injunction against waste, and prosecution of suit at law. There was a decree by the District Court for the plaintiff, and defendants appeal.

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