Volume 25 — Iowa Reports

Appeal from Dubuque District Court. Slander ; verdict and judgment for defendants. Plaintiffs appeal. The necessary facts are stated in the opinion.

Municipal corporations : Code 1851: Act 1858: officers de facto : when acts valid, eto. — Action by the town of Decorah, in its corporate capacity, to recover an assessment from the‘defendant amounting to $24.12, the cost of building a sidewalk in front of premises owned by him. On the trial the District Court gave judgment for the defendant, and the plaintiff appeals.

The decree of the District Court in this cause was affirmed at the June Term, 1867, of this court. A rehearing was ordered upon the petition of the appellant and the cause again submitted at the June Term, 1868.

This cause was tried on the 9th and 10th of July, 1867. On the 12th, defendant filed his motion for a new trial, which on the same day was overruled. The parties then in writing agreed, that defendant should have thirty days to settle and perfect his bill of exceptions. An appeal was perfected to this court on the 15th of the same month.

Action upon a penal bond executed by the defendant N. G. Sales,'as principal, and Robert Dott and John S. Belknap, as his sureties. The bond was executed pursuant to sections 1575 and 1576 of the Revision of 1860, upon the granting of a permit or license by the county judge to N. G. Sales, to buy and sell intoxicating liquors for mechanical, medicinal, culinary and sacramental purposes.

Plaintiee declares upon a note dated March, 8, 1867, due January 1, 1868, for $170.10, and “if not paid when due, with interest at ten per cent from date.” The answer admitted the allegations of the petition, and proposed to let judgment go for the amount of the note, with intérest at six per cent from the maturity of the note.

This was a proceeding under the statute, by arbitration, and, by agreement, the award was to be returned to a justice of the peace and judgment to be entered thereon, which was done.

Plaintiff succeeded and defendant appealed to the District Court, in which there was a trial and verdict for the defendant. Plaintiff appeals to this court; and the error assigned is that the District Court erred in the trial therein in allowing the defendant to introduce evidence in his behalf.

Suit in equity to redeem lands sold for taxes. The plaintiffs are minors, and as such, claim the right to redeem after the expiration of three years from the sale, and after the treasurer’s deeds were made. The cause was sent to a referee, who reported the facts found by him and his conclusions of law thereon.

Fraud : sufficiency of petition charging fraud, etc.— The questions presented by the record arise upon a demurrer to the amended petition, which was in equity, and stated, in substance, the following facts: That in 1858, plaintiff became the surety of one George E. Delevan, upon a note for $812, payable in October, 1860; that in November, 1860, Jones and Shephard, the holders thereof, brought suit thereon in Jones county, and in December, 1860, obtained judgment against…

This is a suit in equity. The petition shows that plaintiff Cotton purchased, and paid for out of his own means, on the 4th of August, 1857, lot 5, block 18, in Beckett’s addition to the town of Vinton, and caused the same to be conveyed to his wife, P. A. Cotton, under an agreement between them, that she would convey, to him or to whomsoever he might assign his interest therein, the said property, upon request so to do.

Action on injunction bond.' — -The defendants, MeKelvey, Neal and Hancock, commenced their suit in equity against the present plaintiffs, asking and obtaining an injunction.

This is an action for tbe conversion of a promissory note. A suit for tbe recovery of tbe amount of tbe note against the maker was heretofore in this court. See Allison et al. v. Barrett' (16 Iowa, 278) for facts connected with the ease that may not be given herein. It appears from the record in this action, by an admission of the parties, that the suit against Barrett was settled, and he discharged from liability to plaintiffs, upon the payment of sixty dollars.

Plaintiff seeks to recover the value of certain goods lost hy fire in defendants’ warehouse on the night of the 11th of March, 1861.

<p> Appeal from Benton District Court. </p> <p>Grand jury : separation of trial jury : insanity, etc. The defendant was indicted for the murder of his wife, pleaded not guilty, was tried, found guilty of murder in tlie second degree, and sentenced to imprisonment in the penitentiary of the State for life. From this judgment he appeals to this court.</p> <p>The errors assigned, and the facts upon which they rest, are stated in the opinion of the court.</p>

Plaintiffs appeal from the action of the court below, sustaining defendants’ motion to strike from the files their amended petition. They also com plain that there was error in rendering judgment for costs against them, as upon a trial, after sustaining said motion.

Appeal from IA/rm District Cowrt. Action for slander. Jury trial. Verdict and judgment for plaintiff for seven hundred dollars. The defendant appeals.

^ This is an action on an account, for goods, etc., by ordinary proceeding, brought in the District Court of Black Hawk county.

Action by the payees against the maker upon two promissory notes.

Minority, gift, etc. — The defendant and Frances L. Oxley, deceased, were brother and sister. Plaintiffs are the heirs at law of the said Frances. Defendant, when a minor, without consideration, and as a gift, made his sister a deed for ten acres of land. This deed, by mistake, failed correctly to describe the land.

<p>Conveyance¡ recording act: index: homestead. It necessary -under our recording act to enter the names of hand and wife in the index of the conveyance of a homestead than1 any other real estate wherein hoth join. Nor is it necessary that the index shall contain a full description of the premises.</p>

Effect on gross petition of dismissing original petition. — Spearing filed his bill, in equity, making William Chambers and S. U. Ingham defendants thereto.

<p> Appeal from Decatur District Court. </p> <p>Defendant held certain lands, by a verbal lease, under Bridges, and afterward Baker, as guardians of certain minor heirs of Marietta Bradley, deceased. He thus held from year to year, from 1863 to March 1867, when, having paid his rent in full to the then guardian, he quit the premises. The deceased, Marietta Bradley, held by a conveyance from Daniel Bradley. In 1863, and after her death, the land was sold under an execution against said Daniel. Plaintiff purchased and obtained a sheriff’s deed July 5, 1864. On the 1st of January, 1865, he commenced a proceeding in equity, alleging that the convey anee from Daniel to Marietta Bradley was fraudulent, etc., and asking to quiet his title, etc. The guardian of the minor heirs was the sole party defendant to that action. In April, 1867', the prayer of the petition was granted, the plaintiff obtaining the relief prayed for therein. And in August of that year he commenced this action, claiming of defendant the rents of said lands for 1861, 1865 and 1866. Trial and verdict for defendant, and plaintiff appeals.</p>

Ejectment, le&al title, estoppel, etc. — Action at law, in ordinary form, to recover a parcel of ground in Waterloo. Each party claims the title. Both claim under one Thomas Atkinson. Plaintiff’s title is a warranty deed from the said Atkinson and Anna M., his wife, dated in October, 1858, the wife joining in the granting part and covenants, and expressly relinquishing dower.

<p> Appeal from Dubuque District Court. </p> <p>Action to recover damages on account of au in|ur^to plaintiff’s horse by reason of a defective bridge, akpajfé, of a street of said city.</p> <p>The petition alleges that plaintiff was driving his teanr of horses and sleigh through the streets of the city, when the horses became frightened and ran away, and, without the fault of plaintiff, becoming unmanageable, ran toward said bridge and threw plaintiff out of the sleigh, and in crossing said bridge one of the horses stepped through a hole negligently permitted, etc., by defendant, whereby its leg was broken, etc. The petition avers due care and diligence of plaintiff in driving his team, and that the defect in the bridge, whereby he sustained said loss, was in the traveled roadway, etc.</p> <p>Defendant demurred to the -petition because it shows that the horses were beyond the control of plaintiff, and that he was not exercising due care in their management at the time of the injury.</p> <p>Demurrer sustained. Plaintiff appeals.</p>

This action is brought on a contract executed by defendant and other citizens of Benton county, the material parts of which are in words following: “We, the undersigned residents of Benton county, in the State of Iowa, for the purpose of encouraging the construction of a railroad from Cedar Rapids, Marion, or any other feasible railroad point, to the town of Vinton, in said county of, Benton, and for value received, do hereby mutually covenant, promise and agree to pay any…

Construction of written contract : reformation in equity, etc. — In 1856, one Stephenson was largely in debt. He owned a house and lot in Fort Madison that were about to be sold under a deed of trust which was the first lien thereon. It is probable that Ritter, one of the plaintiffs, was entitled to a mechanic’s lien, but he had brought no suit to enforce it.

Action to recover a quarter section (160 acres) of land. The plaintiff claims title under a tax deed; the defendant sets up the fee simple title in himself. The other facts in the case will appear in the opinion. Judgment in the District Court for defendant. Plaintiff appeals.

Murder : abortion : evidence, etc. — The defendant is indicted for murder in the second degree. The indictment charges, in substance, that the defendant, by means of medicines administered and instruments used to and upon Mrs. Sarah Grant, with intent to produce and procure an abortion (she being then quick with child), caused her death, etc. No question is made upon the form of the indictment.

Action to recover for stock killed on the defendant’s track by the engine. Judgment for defendant. The plaintiff appeals.

<p> Appeal from Henry County District Court. </p> <p>The necessary facts are stated in the opinion.</p>

Petition in equity, in which plaintiff alleges that he is the owner of a certain eighty acre tract of land; that defendant claims or sets up prior title to the same, under a purchase at a tax-sale, and asking that this title be declared null and void and plaintiff’s quieted, etc. On the hearing the bill was dismissed, and plaintiff appeals.

The plaintiff is the administrator of the estate of James B. Patterson, deceased, and defendant the administrator of Thompson Bell, deceased. Thompson Bell, in his life-time, was administrator of plaintiff’s intestate, but died before the estate was finally settled, and plaintiff was appointed administrator de bonis non.

<p>1. Taxes: who deemed a merchant. Under tlie liberal definition of “merchant,” as prescribed by section 723 of the Revision, a person engaged in buying and packing pork is included in that class for the purposes of taxation, and entitled in listing his merchandise for taxation, to estimate the average value during the year next previous to the time of assessment.</p> <p>2. - FACTS INSUFFICIENT TO EXEMPT : DEDUCTION OF INDEBTEDNESS. The fact that property was purchased and held with a view of selling it out of the State, and that it was so sold; or the fact that the property was purchased on credit or with borrowed capital, will not relieve the owner from taxation for it. The amount of debts owing by him may be deducted from his “ moneys and credits,” but not from his general property.</p>

Plaintiff declares upon a “ scholarship note,”-dated February 5, 1864, payable, “for value received,” in five equal annual installments, the first due January 1, 1865, with interest at ten per cent, payable annually, “'it being for the purpose of endowing and furnishing said college.” Defendant set up and it is admitted, that at the time of giving the note, he received from plaintiff what is called a “ scholarship bond ” reciting the giving of the note, and also that “ if he…

<p> Appeal from Pottawattamie District Court. </p> <p>Appeal : stamps. — The defendant appealed to the District Court from the judgment of a justice of the peace against him. The appeal bond was filed wi thin the twenty days. Neither the bond, transcript, notice or any paper connected with the appeal was stamped within twenty days from the rendition of the justice’s judgment. More than five days prior to the term of the District Court, to which the appeal was taken, the defendant’s attorney appeared in the clerk’s office, and, finding the transcript of the justice had been certified up and not stamped, he affixed, or caused the clerk to do so, a stamp of the proper amount, which the clerk canceled, and he paid to the clerk the docket fee, and the transcript was then for the first time marked filed by the clerk, and the cause duly docketed.</p> <p>In the District Court, the plaintiff moved to dismiss the appeal, because no revenue stamp was placed upon any paper connected with the appeal within the twenty days allowed by law for the taking of the appeal.</p> <p>On the hearing, the facts above stated appeared, whereupon the motion was sustained and the appeal dismissed. From this ruling of the District Court, the present appeal is taken.</p> <p>(Who contended that the stamp law as to appeals and judicial process is void.)</p> <p>(No argument on file.)</p>

Suit on certificate of deposit. Demurrer to petition. Demurrer overruled. Defendant stands upon his pleading. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion.

<p> Appeal from Lee District Court. </p> <p>Municipal corporations : power to levy and collect taxes: when it exists. — Action of right to recover possession of part of lot 11, block 63, Keokuk.</p> <p>It is admitted that the legal title is in the defendants unless the same was divested by a tax deed of the premises in controversy, executed to the plaintiff by the collector of the city of Keokuk.</p> <p>This tax deed is the sole foundation of the plaintiff’s title.</p> <p>This deed is in the record, dated February 29, 1860, and in substance recites, that on the 23d day of September, 1857, the collector of the city of Keokuk sold to plaintiff the premises embraced in this cause, being then delinquent for special taxes due the city, ‘‘ for macadamizing and curbing on Blondeau street, in front of said property; ” the plaintiff offering to pay, and paying, the said taxes and charges, and the said property not having been redeemed in accordance with the ordinances and charter of said city, and the time for redemption having expired, the said collector thereupon, by virtue of the authority vested in him in the name of the city of Keokuk, conveyed said property to plaintiff.</p> <p>The main defense insisted upon by the defendants is, that the city of Keokuk has, under its charter, no power to sell or to authorize the sale and conveyance of real estate for the non-payment of the special taxes (that is, taxes for macadamizing or curbing on the street in front of the lot) recited in the deed from the city collector to the plaintiff. The plaintiff maintains that the city has such power.</p> <p>It is essential to set out the various provisions of the charter and amended charter in reference to the levy and collection of general and special taxes.</p> <p>The “ Act to incorporate the city of Keokuk,” was approved December 13, 1818. The only sections in this original charter relating to taxes are sections 2T, 28, 29 and 30. These are as follows:</p> <p>"Sec. 27. The city council shall have power to levy an annual tax upon all property, real and personal, within the limits of the said city subject to taxation for county revenue, to carry into effect the provisions of this act: Provided, That no such tax shall in any one year exceed one-half of one per cent upon the assessed value of the property upon which the same is levied.</p> <p>“ Sec. 28. The city council shall make out a duplicate of taxes in proportion to the valuation of the property of each individual in said city, on or before the first day of May in each year, to be signed by the mayor and countersigned by the recorder, which duplicate shall be delivered to the collector of said oity, whose duty it shall be to proceed to collect the same within such time, and in such manner as the bylaws or ordinances of the said city shall require, and to pay over the amount of such tax so collected, upon an order of the city council, signed and countersigned in the same manner as is provided for said duplicate : Provided, That the said council shall have power, on the complaint of any person aggrieved, to correct or amend any illegal or erroneous assessment, before making out or delivering such duplicate to the collector.</p> <p>“ Sec. 29. The collector shall have power to sell personal property, and for want thereof to sell real estate, for the non-payment of taxes within said city, giving the purchaser a certificate of such sale, setting forth a brief description of the property so sold, and at what time he will be entitled to a deed, which certificate shall be assignable by indorsement thereon; but no real estate shall be sold for the non-payment of such taxes, unless the assessment of such tax or taxes shall have been duly notified by publication for at least six consecutive weeks before the day when the said taxes are payable, in some newspaper published in, said city, or by notice posted for the same length of time in some public place in each ward thereof, nor unless the intended sale of such real estate shall have been notified in the same manner and for the same length of time prior to such sale.</p> <p>“ Sec. 80. All real estate sold under or by virtue of section twenty-nine may be redeemed by the owner thereof at any time within two years from the date of the sale thereof, by paying the amount of the' taxes for which the same was sold, with cost of advertising and sale, and fifty per cent interest per annum upon the whole amount of such taxes and costs. But if any real estate so sold remain unredeemed at the expiration of two years from the date of the sale thereof, the collector of said city shall, upon the payment of a fee of one dollar to him hy the purchaser of such real estate at such sale, his assignee or legal representative, make, execute and deliver a deed of such real estate to the said purchaser or his assignee or representative.”</p> <p>The amendment to the city charter, approved January 22, 1853 (Laws 1853, ch. 77, 132), contains the following sections in relation to taxes:</p> <p>“ Section 1. That the city council of said city of Keokuk shall have authority to levy and collect, in addition to the taxes now authorized by law, a special tax of not exceeding one-half of one per cent per annum, upon the property, real and personal, situated in said city, and subject to taxation for county revenue, for the purpose of improving the streets, alleys, and wharf of said city, and the payment of the annual interest upon the bonds that have been, or hereafter may be, issued on account of the improvement of said streets, alleys, or wharf: Provided, That the question whether any additional tax shall be levied in pursuance of this section, shall first be submitted by said city council to the legal voters of said city, at any special election, and if a majority of said legal votes be given for said additional tax, then the same may be levied and collected, as provided in this section; but said tax shall not be levied for more than one year, unless the question of levying said tax be again submitted to the people.</p> <p>“ Sec. 2. The special tax aforesaid shall be levied and collected at the same time, and in the same manner, as the other annual tax levied by said city; and the said city shall have the same rights, powers and remedies to enforce the collection of the same, by the sale of property, or otherwise, as is or may be provided for in other cases relative to the city revenue.</p> <p>“ Sec. 3. Said tax shall be payable only in money, and, when collected, shall, by said city, be set apart and held separate and distinct from the other portions of the city revenue, as a fund specially pledged for the payment of the annual interest on the bonds aforesaid, and the improvement of the streets, alleys and wharf of said city; and shall from time to time be so applied by said city council, and for no other purpose whatever.</p> <p>“ Sec. 4 The city council of said city shall have power to levy and collect a special tax on the lot or lots, or the owner or owners thereof, on any street, lane, avenue or alley, or any part of a street, lane, avenue, or alley, within said city, for the purpose of curbing, paving or grading the sidewalks in front of their respective lots, and keeping the said sidewalks in repair, and for the purpose of lighting such street, lane, avenue, or alley.</p> <p>“ Sec. 5. The city council of said city shall have the power to levy and collect a special tax on the lot or lots, or the owner or owners thereof, on any street, lane, avenue, or alley, or an part thereof, within said city, according to their respective fronts, for the purpose of paving, planking, or macadamizing the streets, lanes, avenues or alleys in front of their respective lots: Provided, That in case a special tax he levied on the owners of property in said city, in pursuance of said sections four and five, for the purpose therein specified, no tax, either general or special, shall thereafter he levied on the same property to make the same kind of improvements on any other street, lane, avenue or alley, or any part thereof, in said city.”</p> <p>Section 6 gives the city power to lay out public squares, streets, etc., and to “apportion and assess the damages upon the real estate of the persons benefited,” which “ assessments shall be collected and paid over to the persons” entitled, but the mode of collection is not in said section specified.</p> <p>Section 7 relates to wharves, and provides that “in case private property is taken therefor under the power herein conferred, the damage and benefits shall be assessed, collected and paid over in the manner provided in the section in reference to streets.”</p> <p>Sections 8, 9 and 14, the only other sections relating to taxes, are as follows:</p> <p>“ Sec. 8. The assessment of taxes made hy virtue of the authority contained in the four preceding sections of this act, shall he enforced and collected as may be provided by ordinances of the city council of said city.</p> <p>“ Sec. 9. All taxes and assessments, general -or special, levied or assessed hy the city council under this act, or the act to which this is an amendment, shall be a lien upon the real estate upon which the same may he imposed, voted, or assessed, for one year from and after the assessment has been confirmed hy the city council,‘and upon personal property from and after the delivery of the warrant for the collection thereof, until paid, and no sale or transfer ■ shall affect the lien: Provided, That in case the collection of any assessment shall be delayed by judicial proceedings, the same shall continue a lien (unless set aside) upon such real estate, for the period of one year from and after the final disposition of such judicial proceedings.” (See section 22 of the amendment of 1856 below referred to.)</p> <p>“ Sec. 14. All deeds made to purchasers of lots sold for taxes or assessments by order of the city council, in pursuance of this act, or the act to which this is amendatory, shall be conclusive evidence in - all controversies and suits in relation to the right of the purchaser, his or her heirs or assigns, to hold or recover the premises, except it be shown that no tax or assessment was levied on the lot or lots,-or that the same was paid before the sale, or that the lot or lots were redeemed,- in pursuance of the provisions of the charter or ordinances of said city, before the execution of the deed or deeds.”</p> <p>■ The charter was further amended in 1856. .(Laws 1856, chap. 17, p. 421.)</p> <p>Section 17 gives damages for changes of grade, to be assessed upon the real estate benefited, and section 18 provided as follows:</p> <p>“ Sec. 18. That the sums assessed by virtue of the preceding section upon any lot or part of lot or real estate in the city of Keokuk, shall be a lien upon said real estate, and shall be collected by said city council in the same manner as the other special taxes are now or may be collected, and the amount apportioned by said commissioners against the -city of Keokuk shall be paid by said city.”</p> <p>Section 22 is as follows:</p> <p>“ Sec. 22. That all taxes assessed by virtue of any law or ordinance of the city of Keokuk, upon the real estate of said city, shall remain a Ken upon said real estate, until said taxes are paid to said city, or her proper collecting officer, and so much of any law that conflicts with this provision is hereby repealed.”</p> <p>Soon after the amended charter of 1853 took effect, viz., on the 11th day of March, 1853, the city council passed an ordinance, known as No. 41, the material portions of which are as follows: • • - -.</p> <p>Section 1 provides that when any special taxes are levied by virtue of sections 4, 5, 6 and T, of the amended city charter of 1853, a warrant shall be issued to the collector, and such “ warrant shall be full and sufficient authority to the collector to collect the taxes therein specified.”</p> <p>Section 3 provides that the collector, in case of the nonpayment of said tax, shall “give notice of the sale of the lot or lots; ” and, “ if said tax and costs are not paid, the said collector shall, at the time and place stated in said notice, proceed to sell the said lot or lots or parcels of land to the person'who shall pay the said tax and costs, for the least quantity thereof, to be taken off lengthwise from the left-hand side of the lot or parcel of land, when standing in front of and facing the same.”</p> <p>Section 4 provides that the collector shall give a certificate to the purchaser, setting forth the amount of tax and costs for which each lot was sold, with a description of the property; and that if said lot is not redeemed the purchaser “ shall be entitled to a deed.”</p> <p>Section 5 fixes the time of redemption at two years.</p> <p>Section 8 reads as follows: “ If any lot, or parcel of lot, so sold remains unredeemed at the expiration of two years after sale thereof, the collector of the city shall, upon the payment to him of a fee of one dollar by the purchaser, his assigns or legal representatives, make, execute and deliver a deed of conveyance of such real estate to the said purchaser, or his assigns or representatives ; which deed shall vest in the grantee all right, title and interest which the charter of said city of Keokuk, and the acts amendatory thereto, authorize.”</p> <p>The District Court was of opinion that the city had no power to sell the lot for the delinquent assessment, and accordingly gave judgment for the defendant.</p> <p>The plaintiff appeals.</p>

Action to recover a tract of land in Jackson county. The evidence of plaintiffs exhibits in them the paper title. Defendants claim to hold the land under the statute of limitation by adverse possession with color of title. Yer-dict and judgment for defendants. Plaintiffs appeal.

This is in an action to recover the undivided three-fourths of a tract of land in Jackson county, entered by one Atherton, September 9, 1840. Plaintiff gave in evidence a deed from Atherton, to O’Daniel, dated Api’il 14, 1860, and recorded April 30, 1860, and other conveyances by O’Daniel and others, showing the title thus acquired by O’Daniel finally vesting in plaintiff. These deeds are all regular.

Suit in equity to redeem real estate. Judgment for plaintiffs, and defendants appeal. The necessary facts are stated in the opinion.

Appeal from Jefferson District Court. Indictment for nuisance. Plea not guilty and former conviction. Verdict and judgment for defendant. The State appeals.

Action for balance due on a promissory note executed by defendant to plaintiff. Defense — tender of balance due, and demand of note, and failure to deliver up same. Jury trial and verdict for plaintiff. Defendant appeals.

<p>Bapes assault with intent to commit: evidence. In a prosecution for an assault with intent to commit a rape, evidence was introduced that the defendant, in a conversation before the alleged commission of the defense, stated, upon being asked if the prosecutrix was an unchaste woman, that he did not know, “but he was going over to try her, and if it was all right would tell them.” The defendant asked the court to instruct the jury, that, if defendant made the statement in fun or in jest, they ought to disregard it as tending to show defendant’s guilt; which the court modified by adding, that it might be considered by the jury as evidence tending to show that the thought of criminal intercourse with the prosecutrix was in the defendant’s mind. Held, that the modification and the giving of the instruction as modified was, under the circumstances of the case, erroneous.</p>

Writ of error issued by the District Court to a justice of the peace. On the hearing in the District Court, the action of the justice of the peace was affirmed. The plaintiff in this proceeding, who was the defendant in the original action before the justice, now appeals to this court. The facts are stated in the opinion.

Indictment for obstructing a “county road” therein named. On the trial defendant objected to the introduction of certain record evidence, tending to show the establishment of the road named, as also to parol evidence, that the road referred to had been used and traveled by the general public for over twelve years, etc. The objections were sustained, a verdict of not guilty necessarily followed, and the State appeals.

<p>1. Principal and surety! discharge of surety under the statute. Where the surety under sections 1819 and 1820, of the Revision, notifies the creditor to sue, or permit the surety to sue in the creditor’s name upon the contract, nothing more is required of the surety, and the creditor is left to act in response to such notice or demand; and if he fails to bring the suit within ten days thereafter, or notify the surety of his permission so to do, the surety will be discharged.</p> <p>2.-apprehension of principal’s insolvency. Nor is it necessary, under said section 1819, for the surety, in order to avail himself of the right to be discharged for such laches of the creditor, to show that he did, in fact, apprehend that the principal was about to become 'insolvent or remove from the State. The fact of such apprehensions cannot be put in issue.</p> <p>3. - OFFICIAL RELATION OF SURETY TO PLAINTIFF. Neither will the fact, where the plaintiff is a bank, that the surety was a director and stockholder therein, affect his right to be discharged upon the failure of the hank to comply with the surety’s request.</p>

County road : appeal, etc. — A county road was petitioned for through the plaintiff’s land; and in-due form and time he filed his petition for damages, claiming $500. Thereupon the board of supervisors appointed appraisers, who assessed his damages at thirty dollars, and made due report to the board.

Sura upon an account for goods sold, originally brought before a justice of the peace. Jury trial before the justice and in the District Court, each resulting in the same verdict for plaintiffs. The defendant appeals.

<p>Appeal! A&REED STATEMENT OF FACTS : MUST EMBODY THE EVIDENCE. An agreed statement of facts upon which, it is sought to have reviewed the action of the District Court in overruling a motion for a new trial based on the ground that the verdict is against the evidence, which does not purport to contain even the substance of the evidence upon which the case was tried below, or the facts established by such evidence, but which is simply a general statement of facts upon which it is agreed the court may pronounce judgment, is •insufficient. The Supreme Court sits, in cases at law, for the correction of errors, and not to decide cases by agreement or otherwise as upon an original hearing.</p>

<p>Principal and surety; joint maker: suretyship shown aliunde. It may be sbown by evidence aliunde tbat one who is nominally a joint maker of a promissory note is in fact but a surety. And a surety of tbis character is entitled to all the benefits of sections 1819, 1820 of the Revision.</p>

Petition claims $2,000, and alleges, that, in the year 1863, plaintiff and defendants entered into a copartnership for the purpose of furnishing horses for the government of the United States; that, in carrying on said business, said firm made $7,098.12 profits; that defendants hold said profits and refuse to account to plaintiff and pay over his share thereof, although often requested so to do; that the share of each partner was equal, and amounted to one-sixth of the whole.

<p>Homestead: exchange op por land: parties. Where a husband exchanges the homestead for land, and deeds are executed accord- • ingly; after which he cuts some logs on the land for the purpose of building a house thereon, but dies before constructing the same, a conveyance of the land to the wife, in order that she may sell it, and, with the proceeds thereof, purchase a homestead for herself and family, will not be decreed in an equitable proceeding therefor, against the administrator of her husband, and in which his legal representatives are not joined.</p>

Defendant was indicted and convicted for obstructing a public road, and from the judgment of the District Court thereon appeals to this court.

Nuisance. — Indictment under section 4411 of the Bevisión, charging the defendant with keeping a disorderly house in which quarreling, fighting, drunkenness and breaches of the peace were carried on to the disturbance of others and the common nuisance of the people of the State. -. Defendant was convicted, and assigns for error the instructions given to the jury.

Indictment for willful misconduct in office. The defendants filed a demurrer, which was sustained by the District Court. State appeals.

<p> Appeal from Dubuque District Court. </p> <p>Injunction. — The plaintiff appeals.</p>

<p>■ Appeal from Jackson District Court.</p> <p>Ejectment: legal title: fraudulent conveyance, etc. Eor necessary facts see opinion. Plaintiffs appeal.</p>

Action of forcible entry and detainer against a tenant holding over after the termination of his lease. Judgment for plaintiff, in the District Court. Defendant appeals.

Action at law to recover the value of a certain amount of government bonds deposited by plaintiff with defendant. Verdict and judgment for plaintiff. Defendant appeals.

Default : appeal, etc.— Suit against G-. L. Stevens and J. A. Alverson on account for a barrel of brandy. Where sold and for what purpose is not stated in the petition. Both the defendants were personally served. Stevens appealed and filed a motion and demurrer on the first day of the term.

Ejectment : new trial after appeal, etc. — Tbis was an action of ejectment. Defendants filed an equitable answer, which on trial in the District Court was sustained, and the plaintiff appealed to the Supreme Court. This latter court, at the June Term, 1866, reversed the decision of the District Court, and remanded the cause for judgment accordingly. 21 Iowa, 97. At March Term, 1867, judgment was entered, in obedience to the writ of procedendo, in favor of the plaintiff.

The plaintiff and defendant were married in June, 1857. They separated in September, 1861.

<p> Appeal from Wapello District Court. </p> <p>For facts see opinion. The defendant appeals.</p>

The defendants, G. M. Rutledge, Jordan & Cabn were garnished as the supposed debtors, of A. M. Rutledge, who was a judgment debtor of the plaintiff. Upon their several answers, issue was jointly taken, and on the trial thereof judgment was rendered in favor of plaintiff against the garnishees jointly. The garnishee, G. M. Rutledge, alone appeals.

<p>1. Criminal law: larceny of lost property. To constitute té© ing and conversion of lost property larceny, under section 42'42ef the Revision, such finding and conversion must have been by one knowing the owner thereof. Without this knowledge on the part of the finder the offense is incomplete.</p> <p>2. -POSSESSION OF PROPERTY ALLEGED TO BE STOLEN: COTpUS delicti. Before the usual presumption of guilt arising from the possession of stolen property will obtain, the larceny, the corpus delicti, must first be established.</p>

Mandamus to require defendant to correct the tax-books as to property in sections two, three and four, in township ninety-four, north of range seven west, and certify the same to the treasurer of Payette county. The plaintiff claims that said sections are within its territory. The district township of Pleasant Yalley in said county, asked- to be made a party defendant, and was permitted to defend. In its answer it claims the same territory as part of its school district.

In 1865, defendant brought his action against plaintiff to recover for certain sawing done by Patterson & Casebeér, for plaintiff, at the instance of defendant. There was a trial in August of the same year. Verdict and judgment for Lawson in the sum of $81.62. In June, 1866, McLain, the present plaintiff, commenced this proceeding to obtain a new trial, upon the grounji of newly discovered evidence. The petition was fully heard, the new trial refused, and he appeals. . . ...

<p>L-Practices trial and reference of equitable actions: fore- . . • CLOSURE. An action which involves matters of a purely equitable ‘•character is triable by the first method of trying equitable actions, . although there is also sought in the same action, as one ground of relief, the foreclosure of a mortgage. And the District Court has the power, under our statute, as well as under the former equity •practice, to refer such a cause to a master, or referee, without the consent of the parties.</p> <p>3. Jury ! RIGHT OF TRIAL BY : IN EQUITABLE ACTIONS. A party in an equitable action triable by the first method of trying equitable actions, cannot, as a matter of right, demand that the issues be tried by a jury. The provisions of our statute negativing this right are not in conflict with article 1, section 9 of the State Constitution, guaranteeing the right of trial by jury.</p>

Patterson made Ms note in New York, dated April, 1866, due in six months, payable to Wesley Jones, or order, for $2,575, with interest at seven per cent. Downey and Buchanan, at the time, indorsed the same by writing their names on the back. Afterward, to wit, in June, 1866, the defendant, Berryhill, indorsed said note in this State in the same manner, and before its maturity it was duly transferred by the payee for value to the plaintiff, Samuel H. Jones.

Statute oe limitations : principal and surety, etc.— It is not necessary to state the voluminous pleadings in order to make intelligible the questions decided by the court. In 1858 plaintiff was the owner of a farm in Henry county, the title to which was in one Bowers, subject to certain judgments against the plaintiff existing at the time of the conveyance thereof by the plaintiff to Bowers, who was his father-in-law.

Mandamus. — The object of the writ was to compel defendant to levy certain taxes for school purposes voted by plaintiff in July, 1867. From an order awarding the peremptory writ the defedant appeals. -

In this action, plaintiffs claim in their petition, under Kevision, chapter 142, the delivery of certain personal property after judgment, or the value thereof. The value of the property is stated, and it is averred that plaintiffs are the owners thereof.

This is a suit in chancery to enjoin the collection of a certain tax alleged to be illegally assessed against plaintiff, upon $61,260 of personal property. Decree in the District Court perpetually enjoining the collection of the tax. Defendant appeals.

Garnishment of municipal corporations, etc. — Plaintiff, a creditor of Walker & Davis, commenced suit against them by attachment, and garnished the school district of the city of Fairfield as a debtor of the defendants. In due time plaintiff obtained judgment in his action against Walker & Davis, respecting which no question is made. Afterward, and in the manner stated in the opinion, he obtained judgment against the school district as garnishee, from which it appeals.

Appeal from Wapello District Court. This is a proceeding upon an agreed statement of facts, under section 3408 of the Bevision. Judgment for defendant. Plaintiff appeals.

Certain property (agricultural implements) was attached by Brock (sheriff) at the suit of defendants against one Large. Plaintiff brought this action (detinue) against the sheriff and attaching creditors to recover the value of the property so attached. Trial to the court, judgment for plaintiff against the creditors, and they appeal.

Practice: rule oe damages: general and special verdict. — This action was commenced before a justice of the peace on the 24th day of April 1867. Plaintiff alleges that he stored in his barn wheat for the defendant, as follows: In the year 1859, 85 bushels; in 1860, 150 bushels; in 1861, 440 bushels; in 1863-4, 180 bushels; in all 855 bushels, under a contract whereby defendant was to pay plaintiff five bushels of Avheat for every one hundred stored.

Action upon a fire policy to recover for the loss, by fire, of the property insured. The property, which was destroyed by the fire, and the sums insured thereon, are described and set out in the policy as follows: “ Storehouse, $200; drygoods therein, $250; yanlcee notions, $150; groceries, $200; boots and shoes, $175; hardware, $25.” The. policy covered another building and other personal property.

PLAnmHFS brought separate actions in attachment against Miles & Keeler, who are residents of and doing business in Milwaukee, Wisconsin, and caused Lowrey to be served with garnishee process.

This is an action of replevin for a mule team, harness and wagon. Trial to the court without a jury, and substantially the following facts were found : One Carleton, the owner of the property, executed a mortgage to plaintiff upon the same, in accordance with the laws of Illinois, where the property was at the time, to secure the sum of $500, due at a future date, with a stipulation that , the mortgagor should retain the possession of the property until the debt became due.

This controversy relates to 66xVo acres of land, being a part of 160 acres, near Leon, in Decatur county. The entire quarter section'was entered by Daniel Bradley in 1851. On the 8th of October, 1857, he conveyed it to ■his wife, Marietta, who died in October, 1858, leaving the husband and the defendants (their minor children), her ■surviving.

This is a suit in chancery to cancel and set aside a certain deed executed by plaintiff to defendant, relinquish ing all her right of dower in the real estate of defendant, her husband, and releasing all claim upon him for maintenance and support. Decree granting the relief prayed for in plaintiff’s petition. Defendant appeals.

In April, 1858, the people of Hardin county voted upon, the question of the re-location or moving of the county seat from Eldora to Point Pleasant. Upon the canvass of the votes by the board of canvassers, the county judge and two justices of the peace, Point Pleasant was found to have nineteen majority, and was declared to be the county seat.

This is an action brought upon a bond executed by the defendant to the plaintiff, whereby, in part consideration of the purchase of a certain house and lot in Chariton, the defendant bound himself to pay a certain mortgage, specifying the amount thereof, executed by plaintiff to one C. W. Cowles upon the said lot.

Plaintiff appealed to the District Court from the assessment of damages, made by freeholders, occasioned by the proposed location of defendant’s road over his lands. Held: that “ the failure of a condition subsequent in a grant, entitled the grantor to call for a reconveyance.” In Palmer v. Fort Plain, etc., Plankroad Go.

Action of replevin for certain intoxicating liquors, and tlie vessel containing the same, taken by defendant on an execution against one Cleghorn. The petition avers that the absolute property in the things replevied, and the right of possession thereof, are in plaintiff, and contains other necessary allegations showing his right to recover.

Creditor’s bill — fraududent conveyances, etc. — The plaintiff is a judgment creditor of John A. Rogers. The defendants are the said Rogers and his sons, daughters and son-in-law. The object of the present suit is to set aside as fraudulent certain conveyances of lands made by Rogers to his co-defendants. In April, 1860, he conveyed, without any pecuniary consideration to his four children, two sons and two daughters, two hundred acres of land each, or 800 acres in all.

— -Action on-two promissory notes made by defendant to tlie plaintiff. Demurrer to answer sustained, and defendant appeals.

Action on a bond given for the hiring and return of certain personal property. Very briefly and concisely stated, tbp facts are as follows: One Graham and another, being the owners in fee of certain real estate, executed a mortgage thereon to the State of Iowa, to secure a loan of certain school fund money of Benton county. Afterward said parties executed another mortgage thereon to these plaintiffs to secure an indebtedness to them.

Action in attachment against -Simpson, wherein garnishee process was issued against Allen, his debtor, and served October 19, 1867. Judgment against the debtor and garnishee November 19, 1867. The garnishee appeals. ■ (No brief found on reporter’s file.) I. The agreement to satisfy the judgment was a fraud upon the court.. II. The statute, chapter 131, provides the mode of making up an agreed case. III.

In 1860, plaintiff was the owner of the two hundred acres of land in dispute, and is still such owner, unless the title has been divested by the deed or judicial proceedings upon which defendants rely, and to which full reference is made in the opinion.

Vendor and vendee : payment of money : forfeiture, etc. — Action for $70, had and received by defendant for use of -the plaintiffs, who are administrators of one Schrader, deceased. Answer to the merits, denying plaintiffs’ right of recovery, and stating the contract under which the money sued for was received. See opinion. Jury trial, and under the instruction referred to in the opinion, there was a verdict for the plaintiff, and judgment accordingly. Defendant appeals.

Aotion upon a marine insurance policy. The contracting terms of the policy were as follows : “ The Phcenix Fire Insurance Company, of Brooklyn, New York, by this policy do cause to be insured, lost or not lost, Joseph M. Robinson, of Burlington, Iowa, in such sums on property at risk, as shall be specified by application, and mutually agreed upon and indorsed hereon.

The petition shows that plaintiffs are citizens and tax payers of Benton township, in Fremont county, having property therein upon which they are liable to pay taxes; that in 1866, Tliorngate, Blanchard and Beebont were the sub-directors in the district township of Benton, Peinny the treasurer, and Davis the secretary; and that said Peinny, Blanchard and Beebont, are still in office, etc. In April of that year, the electors of said district township appropriated $300 to…

Plaintiff is an. incorporated city of the second class, under the general act for the incorporation of villages and towns.

The plaintiff and others, citizens of Van Burén county, p-chitioned the board of supervisors to revoke a license to keep a ferry across the Des Moines river, theretofore granted by the board, to A. J, Kerr, now deceased. Notice of the presentation of the petition was given to defendants, and the grounds upon which the revocation was asked wore stated in writing. Issue thereon was taken by defendants, and at the hearing, the board of supervisors revoked the license.

In July, 1865, Andrews and Bigelow sold to the district board of defendant, certain “ maps, and keys, charts, globes, and other school- apparatus,” for which an order was drawn by the president and secretary, on the treasurer, in favor of Andrews and Bigelow, “ or bearer,” for $221.20, payable April 1,1867, with ten per cent interest. The order was payable out of the “ contingent fund,” and upon its face showed for what it was given.

<p> Appeal from Wapello District Court. </p> <p>Defendant appeals from an order overruling his motion to “ dissolve an attachment.”</p>

The petition and two separate amended petitions of plaintiff, set out substantially the following allegations with. others not… Held: that sales in gross of property divided bylaw, or capable of subdivision, will be set aside. Ritter v. Henshcm, 7 Iowa, 97; Grapengether v, Fejervcvry, 9 id. 163 ; Boyd v. Filis, 11 id. 103; Bradford v. Limpus, 13 id. 424; Lay v. Gibbons, 14 id. 377; By am v. Goolc, 21 id. 392; Ferguson v. Heath, 21 id. 439; White v. Watts, 18 id. 75.

Replevin for a stock of fancy goods. The plaintiff claimed tbe right of possession by virtue of a mortgage executed to him by Huber & Drake. Held: with great uniformity, that a mortgage, being a sale, could transfer no title in the mortgagor. The common law of mortgages has been so modified by the modern rulings of the courts, that it now more nearly approximates the civil law of mortgages.

Plaintiffs are attorneys at law, practicing their profession as partners, at Marshalltown, in this State. In March, 1867, John S. and Robert N. Thompson, sons of defendant, aged 12 and 26 years, while crossing in a wagon belonging to defendant, the track of the Chicago & Northwestern Railway Co., were ran over by the locomotive and train, the property destroyed and the children killed.

Insurance : powers of agents : applications : filling UP OF INSTRUCTIONS Í ACTIONS ON INSURANCE POLICY, ETC.The petition alleges, that, on the 25th day of April, 1865, the defendant (incorporated by the laws of Illinois, and located at Qnincy in that State) issued a policy of insurance to the plaintiff, to date from April 19, 1865, and to continue in force for one year.

Plaintiff declares upon a note and mortgage made by-defendant, to the Hacine and Mississippi Eailroad company, in May, 1856. Answer, that the note was obtained by fraud, etc. Trial to the court, judgment for defendant, and plaintiff appeals.

Plaintiff brought suit in attachment, against defendant Murray, July 7, 1865, levying the writ upon 120 acres of land, which had been owned by Murray for several years. July 11, 1865, a deed executed by Murray, was filed for record, conveying the land attached, with thirty acres in-addition, to defendant Ward. The deed is dated- and acknowledged June 28, 1865, and the consideration named therein is $2,000.

Constitutional law : eminent domain : private roads' : constitutionality op act op 1866 as to private roads. — Plaintiffs own certain lands in tbe N. W. \ 27, 72, 8, on which there is a coal bank. Defendants own the adjoining S. W. \ of 27 on which (as stated by counsel in argument) there is also a coal bank. Across the defendants’ land there is a public road which runs to the railroad switch on the N. W. J of section 34, adjoining the defendants’ land on the south.

The petition charges, that the defendant was a hotel keeper, and that the plaintiff, who was his guest, delivered to him, for safe-keeping, his pocket-book containing $136, which, through carelessness of defendant, was lost. The answer of the defendant is a general denial of the allegations of the petition. Trial by the court without a jury. Judgment for plaintiff in the sum of $136. Defendant appeals.

Usury statute construed : State entitled to judgment against surety. — Action upon a joint promissory note signed by three persons, of whom the appellant is one. Held: because he is partioeps criminis in the violation of the law, whereas the contract of surety does not necessarily have knowlege of the usury; on the contrary it must be presumed that he was innocent. III.

Larceny : delivery procured by fraud : recent possession, eto. — The defendant and one Charles Ferguson were jointly indicted for stealing a mare, belonging to Mrs. Mary Carpenter. It does not appear from tbe record whether Ferguson ’ bad been arrested or tried. Tbe defendant, Brown, pleaded not guilty, and was tried to a jury.

The board of supervisors of Scott county, on the 5th day of January, 1865, adopted a resolution in the following words, viz.: “ Resolved, in order that Scott county fill its quota on the last call for 300,000 men, that this county offer the sum of $150, as a bounty to volunteers to lili ' said .quota.

Uttering forged note : instructions : evidence. — The indictment alleges, that the defendant, on the 15th day of June, 1865, did utter and publish as true, a certain false, forged and.counterfeit promissory note, well knowing, etc., dated August 5, 1856, for $179, payable on demand to the defendant, and purporting to be signed by one Austin Brainard, as maker. From a judgment on a verdict of guilty, the defendant appeals.

Defendant was served with notice in March, 1863, and at the next term answered, alleging payment of the first judgment in July, 1855 ; and that Thomas, who recovered the second judgment, was, at the time he assigned to plaintiff, indebted to defendant in the sum of, etc., for, etc., showing a claim larger than such judgment.

The ground of the bill is, that, about March, 1865, Armstrong paid the defendant the full amount of the judgment, and received from him a written satisfaction of the same. The 'answer denies the alleged payment, and the genuineness of the alleged written satisfaction.

<p>NEW TRIAL: CONFLICTING EVIDENCE</p>

§ 1564) of the act for the suppression of intern perance. Trial, verdict of guilty, judgment accordingly, and defendant appeals.

A petition for rehearing was presented by the appellant, and a rehearing was granted. The cause has again been very fully and ably argued. The facts of the case are stated, and an opinion thereon prepared, as upon an original hearing. The case reported as above is referred to for facts, etc., not herein given.

<p>FAILURE TO EXCEPT.</p>