Volume 26 — Iowa Reports

Action upon a policy of insurance, which, so far as it is material to an understanding of the case, and is not set out in the opinion… Held: that the insurers, in affirming the validity of the premium note, necessarily affirmed that the policy was also originally valid; and the court say, “the defendants shall not now be allowed to set up any fact dehors the policy, in order to impeach the original validity.” Here was no forfeiture, for the breach of the warranty occurred…

<p>Taxes: SCHOOL fund mortgage. The county authorities of a county cannot, for the use of the school fund, huy in an outstanding tax title for the purpose of defeating the lien of a mortgage held hy a third party, and which is prior to one existing on the same land, in favor of the fund.</p>

Action in detinue for a promissory note. The defendants claim title to the note under an indorsement thereof by S. O. Bowen, as attorney in fact for the plaintiff under a power of attorney. The defendants offered the power of attorney in evidence, for the purpose of proving the authority of the defendant S. O. Bowen to indorse and transfer the note to his co-defendants. It was objected to on the ground that it was immaterial, and that it conferred no such authority.

<p> Appeal from Washington District Court. </p> <p>Testimony oe accomplice : corroborating evidence. — Larceny; trial; verdict of guilty; judgment, and defendant appeals.</p>

The plaintiff appeals and assigns for error the action of the court below in allowing an amendment and rendering judgment under the circumstances disclosed in the opinion.

Plaintiff, and defendant, with others, petitioned separately for the establishment of two different roads. Tlie road petitioned for by defendant was established by the supervisors. Upon the answer, and return of the supervisors to the writ of certiorari, the cause was dismissed. Plaintiff appeals.

The petition claims, that defendant sold to plaintiff a certain lot of sheep, representing that they were sound and healthy, and averring that they were diseased; wherefore, etc. Defendants pleaded that the court ought not to have or maintain jurisdiction, because they were at, etc., residents of the State of Ohio, and not of this State. To this plea there was a demurrer, which* was sustained.

Deed : delivery : proof of : evidence, etc. — The defendant, Libbie E. Gould, is the widow (since intermarried with Gould, her present husband) of one Anthony Eobinson, deceased, who was a brother of the plaintiff.

Demand in replevin. —Replevin for a steer. Verdict before justice of the peace, for plaintiff. On appeal, in the District Court, there was a mistrial, and subsequently a verdict and judgment for the plaintiff. The defendant appeals.

Action of right. —Plaintiff claims of defendants, tbe heirs and legal representatives of David Moreland, deceased, “ a strip of land along the southerly side of the south half of the north half of section 4, 90, 3, and being about, etc.,” counting upon a valid title, and claiming all except one-quarter of an acre near the S. W. corner of the N. E. J of said section.

This action was originally brought before a justice of the peace to recover double the value (under § 6 of ch. 169 of Laws of 1862) of two calves killed on the railroad of defendant. There was a trial before the justice, and judgment for defendant for costs. The plaintiff appealed to the District Court, where- there was a trial to a jury, which resulted in a verdict and judgment for the plaintiff, for tlie sum of fifty dollars. The defendant appeals to this court.

Sheriee’s sale : variance between judgment and WRIT: INADEQUACY OE PRICE : DELAY, ETC. — Petition to set aside sheriff’s sale and deed, filed in May, 1866. The sheriff’s sale was made, October 22, 1860, on an execution from Johnson county, in favor of the present defendant and against the present’plaintiff. The sheriff’s deed to the defendant was executed in June, 1862. The property sold, consisted of certain lots in the village of Steamboat Rock, in Hardin county.

Action upon a promissory note alleged in the petition to be lost. Yerdict and judgment for plaintiff. Defendant appeals.

The defendant was indicted, tried and convicted of the crime of maliciously threatening to injure another, to compel another to do a thing against his will. After verdict, the defendant moved in arrest of judgment, on the ground that the indictment did not charge facts sufficient to constitute any offense. This motion was overruled and judgment and sentence were duly passed upon the defendant. The defendant appeals. The further- facts are stated in the opinion.

<p> Appeal from JLinn District Court. </p> <p>Liability oe railway company for safe condition OF PLATFORM AT STATIONS, ETC.-This action IS brought to recover damages for an injury received by Mrs. McDonald, at Cedar Rapids, on the evening of January 3, 1867.</p> <p>The petition avers that the defendants are common carriers of passengers; that, on the 3d day of January, 1867,.at defendant’s station, in Cedar Rapids, Mrs. McD. (plaintiff) purchased a ticket entitling her to be carried from Cedar Rapids, Iowa, to Fulton, 111., and, that, “ thereupon it became and was the duty of the defendant to use due and proper care that the plaintiff should be safely placed in said train, and so to construct and keep in good repair the platform around the said depot and the steps to the same, that plaintiff could safely go from the platform to the carsyet the defendant neglected its duty in this behalf, “ so that the plaintiff, in going from the platform to the cars, fell through a step connected therewith, which defendant had negligently left in an unsafe condition, by reason of which fall she broke her ankle bone and was otherwise injured,” etc. Answer:</p> <p>1. In denial.</p> <p>2. That the injury was caused by the plaintiff’s own negligence.</p> <p>3. That, before suit brought, “ plaintiffs sold and conveyed to one E. Latham'one-half of the claim in suit, who still owns the said half of said claim, so that the plaintiffs were not then, and are' not now, the sole real parties in interest in the action.”</p> <p>On the trial it appeared in evidence that the plaintiffs (husband and wife) had been on a visit at Cedar Eapids, and being desirous of going to their home in Wisconsin, procured tickets of the defendant, at its station in Cedar Eapids, and waited in the passenger room at the station until the arrival of the train on which they expected to take passage. The train arrived at 6.20 p. m., and left at 6.15 p. m. When the train arrived, the plaintiffs went to take their seats in the cars, and when about to step upon the train heard the announcement of “ twenty minutes for supper.” Mr. McDonald testified, that, about the time this announcement was made, “ the train started and moved back beyond the platform, and I told my wife we had better go back into the room till such a time as the train should come forward. She said “no,” she would rather sit down on the platform, or stand up there, as the room was so full of tobacco smoke that she could not stand it. It made her sick. I proposed to her that we should go back to the ears and get on, as it was cold. We started and walked on the platform toward the cars until we came to the west end of the platform, and in going down the steps, one of them being loose and out of place at one end, it gave way and came up between my legs, and threw us both on the track head foremost, down under the train.” Her right leg was broken, the left ankle sprained, and she was otherwise injured and long confined to her bed.</p> <p>Mrs. McDonald testified to the same facts.</p> <p>The evidence showed that the. accident happened when it was “ dusk, or getting ■ dark.” There was evidence tending to show care in descending the steps where the accident happened.</p> <p>Mrs.'McDonald was 59 years old and weighed about 200 pounds. There was evidence showing that the passenger depot, if not full, was crowded with foreign emigrants who were smoking. The plaintiff, Mr. Me-Donald, testified, “that it was thick with tobacco smoke, so much so that it was difficult for one to breathe, and my wife took more offense at it than I did.” Mrs. McDonald testified, “that it was so smoky that it made me sick,” and that this was the reason why she did not go back into the room, but went west along the platform to get aboard of the cars.</p> <p>The plaintiff’s son testified, “ that the depot was so full of people that his mother could'not get a seat, and that it was full of tobacco smoke, which was very offensive to her.” í</p> <p>This testimony as to the smoky condition of the room was allowed to go to the jury against the defendant’s objection.</p> <p>The defendant produced evidence showing that the steps where plaintiffs fell were about 300 feet distant from the door of the passenger depot; and that the usual place for passengers to get on and off the cars was in front of the passenger depot and the platform between it and the freight depot. The depot buildings, platform, steps, etc., are correctly indicated in the annexed diagram.</p> <p> </p> <p>Passengers to and from the Dubuque and S. W. E. E. depot usually pass over these steps.</p> <p>It was also shown by the defendant that it was customary when the train arrived, as in this instance, from the west, to run back so as to bring the baggage and express cars to a point opposite the freight depot, for the purpose of discharging and receiving baggage and express matter. This movement, on the evening on which the accident in question happened, placed the passenger coaches west of the west end of the platform, so that the nearest passenger car was about one car length beyond the steps at the west end of the platform.</p> <p>It was while the cars were thus standing, that the plaintiffs, without waiting for them to be drawn up to the platform in front of the passenger depot, started for them, walking the whole length of the platform, and in descending the steps the injury for which this action is brought happened.</p> <p>Defendant also produced evidence to the effect, “ that there was plenty of room to get on and off the trains from the platform; and that there was no necessity for any one to go down these steps to get on. Before leaving, trains always draw up in front of the passenger depot, and stop to take on passengers. The accident happened fifteen or ‘twenty minutes before the leaving time of the train. The steps are* not intended or used for passengers to get on the trains.</p> <p>The defendant asked the court to give the following instructions, viz.:</p> <p>“ 1. If the jury believe from the evidence, that the defendant, at the time of the alleged injury at the station at Cedar Eapids, was provided with a safe and suitable platform in front of, and. adjacent to, the passenger rooms of said station, so that passengers could safely and conveniently pass from said room to the trains, and that passenger trains stopped at said platform for the purpose of receiving passengers, and if said plaintiffs, in attempting to get upon said.train by a different and unusual way and at a different and unusual place, met with said accident, then the plaintiffs are not entitled to recover in this action.</p> <p>“ 2. That if the plaintiff Margaret McDonald attempted to enter said train at a place not prepared or designed by the defendant for receiving passengers on trains, there being no paramount necessity for so doing, and in making such attempt she received the said injury then her own fault contributed to the same, and the plaintiffs cannot recover.</p> <p>“ 3. The liability of the defendant as a common carrier did not commence as to the plaintiffs until the train which they were to take was drawn up to the usual place for receiving passengers, unless they were directed by some authorized agent of defendant to go upon the train at another and different place or before the train rea'ched the usual place.</p> <p>“ 4. If the jury believe from the evidence, that, .before the commencement of this action, the plaintiffs agreed with Mr. E. Latham, that, as the consideration for his services in this action, he was to have one-half of all the money collected in said action, then the plaintiffs cannot recover in this action.”</p> <p>Each of these was refused, and the defendant excepted.</p> <p>The court, after referring to the issues made by the pleadings, charged the jury as follows:</p> <p>“ 3. If you find from the evidence that E. Latham, the plaintiffs’ attorney, agreed to prosecute plaintiffs’ claim for one-half he may recover, that does not make such an assignment as to make it necessary that he should be a party plaintiff.</p> <p>“ 4. The principal question for you to determine is, by whose fault or negligence did the accident occur ? If one of the steps was loose and not nailed down, by reason of which the accident happened, it is such a want of care as would render the defendant liable, unless you find that the accident happened, or was contributed to, by the want of ordinary care and prudence on the part of the plaintiff Margaret McDonald.</p> <p>“ 5. It is for you to determine from the evidence whether the plaintiff Margaret McDonald used ordinary care and prudence in leaving the depot and going to the cars by the way and at the time she did, and by ordinary care is meant such care and prudence as an ordinarily prudent, person would exercise under like circumstances.</p> <p>“6. If you find that an ordinarily prudent person would not have gone down the steps of the platform where the accident occurred, but would have waited until the passenger cars were opposite the passenger depot, then the defendant is not liable. And if you find that the plaintiffs went' by a way which was not used or traveled over by passengers to enter the cars, and that a person of ordinary prudence would not have gone by that way, you may fairly infer that there was a want of ordinary care on her part. Passengers must exercise ordinary care in approaching and entering the cars.</p> <p>“ 1. If, however, you find that the defendant backed its train up to the place where it stood when the accident happened; that persons could conveniently and safely ápproach the train where it then stood but for the defective step, and there was no rule or regulation of the company prohibiting persons from approaching the cars by that way, and that an ordinarily prudent person would have approached the train by that way, the defendant is liable if the accident occurred by reason of the defective step.” ' ' *</p> <p>The defendant excepted to this charge.</p> <p>The jury returned for the plaintiffs a verdict for $2,000. A motion for a new trial was overruled, and judgment was entered against the defendant, from which it prosecutes the present appeal.</p> <p>The cause was submitted in this court on oral and printed arguments. *</p> <p>I. The court erred in allowing the plaintiffs to amend the petition so as to claim $3,000 instead of $499 damages. The affidavit (page 6) discloses the reason why the damages were originally laid at $499, and afterward increased. It was a gross abuse of the privilege of amendment on the part of the plaintiff", and an abuse of sound discretion on the part of the court in permitting it to be done.</p> <p>II. The court erred in admitting the answer of George McDonald to the fifth direct interrogatory as to the condition of the passenger room with respect to tobacco smoke, and also the testimony of Margaret McDonald and Alexander McDonald upon the same subject.</p> <p>The evidence was. no material or proper part of the case, and the fact of smoke being in the room, or that smoke was offensive to the plaintiff, or that the weather was cold, constituted no justification for the plaintiff’s to attempt to enter the train before its arrival at the proper place, and no valid or legal excuse or justifying necessity for their fault in going to the train by a route not prepared or intended for that purpose. Its only object and effect was to" prejudice the minds of the jury against the defendants.</p> <p>III. The admission of testimony as to the expectancy of the plaintiff’s life was error. This court, in Donaldson v. M. c& M. B. JB. Go. (18 Iowa, 289-90), held, that the admission of the Carlisle tables for the purpose of proving the expectancy of life of the plaintiff’s intestate was proper. But that action was brought to obtain compensation for a wrongful act producing death, and the value of the life in question was the rule or measure of damages. It is plain to be seen that such testimony is proper, as showing the probable length of life, and thereby establishing one very important element of its value in estimating the damage sustained by the estate of the deceased or his next of kin. But it seems impossible that it could give a jury any correct notion of the bodily pain, suffering, medical expense and loss sustained by a person who has sprained an ankle or broken a leg.</p> <p>IY. The court erred in not granting the motion for nonsuit on the sixth point contained therein, in giving the third instruction and in refusing to charge the jury as requested by the defendant’s counsel in the fourth paragraph of instructions requested. They all relate to the agreement established by testimony of the plaintiff, George McDonald, and made between him and his attorney, E. Latham. The testimony is as follows: “I agreed with Mr. Latham to collect the claim for fifty per cent; no collection, no pay; he was to have one-half of all he should collect; this agreement was made before the suit was commenced.”</p> <p>Upon these facts the suit should have been* dismissed, for two reasons. ' ' .</p> <p>1. The agreement is champertous and contrary to public policju 2 Parsons on Cont. 766; Boardman db Brown v. Thompson, 25 Iowa, 487.</p> <p>And it appearing from the evidence that the suit is prosecuted under and in pursuance of a champertous agreement, the court ought not further to have entertained it. Barker ei al. v. Barker et al., 14 Wis. 131, 143; Well) v. Armstrong, 5 Humph. 379; Morrison v. Beadriok, 10 id. 342; Hunt v. Lyle, 8 Yerger, 142.</p> <p>2. Latham being the assignee and equal and joint owner of the claim, was a real party in interest, and should have been made a party plaintiff. Revision, § 2757; Lewando v. Dunham, 1 Hilt. 114.</p> <p>In this case it was held, that, where an action was brought by an assignee of the original claimant, and the evidence showed that another person was to share in the proceeds of the judgment, the action should have been dismissed, although the assignment to the plaintiff was in writing and under seal. The plaintiff did not have the whole interest.</p> <p>V. The fifth and sixth instructions are erroneous in submitting to the jury the questions as to whether the plaintiff, as a passenger, had the right to leave the depot and go to the cars by the way and at the time she did; whether she had the option to go down the steps of the platform to reach the train, or wait until the cars were opposite the passenger depot, and also whether she had the right to go by a way which was not used or traveled over by passengers to enter the trains. The court instructed the jury that she had the right to do as she did; had the right to go to the cars by the way and at the time she did; had the right to go by a way not used or traveled over by passengers, provided that an ordinarily prudent person would have done so, or that she used ordinary care and prudence.</p> <p>The defendant insists, that its liability does not at all depend upon the question as to what ah ordinarily prudent person would do, or whether the plaintiff used ordinary care in doing as she did. If she had not the right to go when and where she did, then no degree of care and prudence on her part would render the company liable. This does not imply that she must be a trespasser or an unlawful intruder upon that part of the premises, but that in going there she disregarded the implied contract existing between herself and the company, viz.: to conform to all reasonable rules and regulations of the company for entering its cars.</p> <p>YI. The seventh .instruction lays down substantially the same rule as the fifth and sixth, with one exception. It declares, that the defendants are liable for the injury if an ordinarily prudent person would have approached the train by that way and if there was no rule or regulation of the company prohibiting persons from approaching the cars by that way. If -it is meant by the latter qualification that the prohibitory rule or regulation should have been a written or printed one, posted up so as to be brought to the notice and attention of passengers, in language prohibiting passengers to approach trains by that way, then we insist that it is not the law. It is not true, that passengers have a right to go to any and all places about the carrier’s premises, depots and vehicles, and at all times, unless prohibited by express rules and regulations, and thus increase the carrier’s liability. It is their duty to use and occupy such places as are appropriated and designed by the carrier for them, and none other, he having provided safe and suitable ones of which the plaintiff had knowledge. The jury unquestionably understood that an ordinarily prudent passenger might go wherever he saw fit, if he was not forbidden to do so by an express and positive regulation.</p> <p>YII. The court erred in refusing to give the first, second, and third instructions requested by the defend1 ant’s counsel.</p> <p>"We insist that these instructions were applicable to the evidence in the case, embody the principles of law appertaining to it, and should have been given.</p> <p>They concede what the law implies as the obligation of the company in its contract for carrying passengers, viz.: that it is the duty of the company to provide safe and suitable means of ingress to its trains, so that passengers can safely and conveniently pass from the station to the train,-and to stop its cars at the platform for the pur- ■ pose of receiving passengers. Having performed • these specific duties and obligations, the company is discharged from further liability as to the passenger who desires to enter the train. It has done all that the law requires, and is not liable for injuries to a passenger sustained in consequence of his attempting to get upon the train at a different and unusual place, instead of by the platform.</p> <p>There is also on the part of the passenger an implied contract that he will and does assent to all the company’s reasonable rules and regulations for entering, occupying and leaving the cars, and if an injury befall him by reason of his disregard of regulations which are necessary and proper to the conducting of its business, the company is not liable in damages, even though the negligence of the servants of the company concurred in causing the mischief.</p> <p>The regulation of the company for entering the ears by the platform was apparent from its existence and from having been placed there and used for that purpose, and if a passenger voluntarily disregards this regulation and attempts to enter the train by a different and unusual way, and thereby sustains an injury, he and not the company is responsible for it. Sullivan v. Phil, db Read. R. R. Go., 6 Casey, 234; Penn. R. R. Go. v. Zehe, 33 Penn. St. 318; S. C., 37 id. 420; Angelí on Com. Carriers, §§ 525, 527, 530.</p> <p>Till. The verdict is contrary to the evidence and the law.</p> <p>This action being founded on a breach of contract or duty on the part of the defendant as a common carrier, to provide safe means of access to its cars, so that the plaintiffs could safely enter them, and there being no proof of neglect in that respect, but on the contrary it being indisputably established that the defendant had provided safe and convenient means of access, the jury should have rendered a verdict against the plaintiffs. Angelí on Carriers, § 525, 527, 530; Sullivmi v. Phil. <& P. P. Go., 6 Casey, 234; Perm. P. P. Go. v. Zebe, 33 Penn. St. 318; S.-C., 37 Penn. St. 420; Frost v. G. T. R. Go., 10 Allen, 387; Todd v. Old Oolony P. P., 7 Allen, 207; Indiana Central P. P. Go. v. Iludelson, 13 Indiana, 325; Carolus v. Mayor, etc., 6 Bosw. 15; Porter v. O.de N. W. P. P. Go., 20 Iowa, 73; Railroad Go. v. Montgomery, 7 Ind. 474, 479.</p>

Action-upon the covenants of warranty contained in a deed executed by defendants. The breach alleged is the -non-payment of taxes falling due upon the land. Trial by the court without a jury, and judgment for plaintiff. Defendants appeal.

Plaintiff’s case, as shown by his petition, is this: Under and by virtue of certain resolutions of the board of supervisors of Washington county, passed June 8th, 1864, he performed all and singular the services therein contemplated; that is to say, he retook all the required proofs in relation to the swamp lands of the county, to the satisfaction of the board, procuring the necessary witnesses and arranging the necessary blank forms.

Fixtures : mechanic’s lien : now affected by recorded chattel mortgage, etc. — Replevin for two engines, two boilers, one circular saw, one mnley saw and appurtenances. Plaintiffs and defendant each claim an absolute title to the property. Upon the instruction hereinafter noticed, the jury returned a verdict for the defendant, and the plaintiffs appeal. To understand the questions presented, it is necessary to state the history of the title of the respective parties.

Personalty : tenants in common : conversion, etc.— Tbis is an action iu the nature of trover by one joint tenant in personal property against a co-tenant. One Sackett was the owner of a promissory note, secured -by mortgage, made by one W. C. Earl (son of the defendant) and one Augustine Hersey. Being the owner of this note, Sackett' sold and assigned by piecemeal (so the petition alleges), to four persons, distinct portions thereof.

Action on a policy of insurance upon tlie life of Edgar Tisdale, husband of plaintiff. There was evidence at the trial tending to prove that the party upon whose life the policy was issued was a young man of exemplary habits, excellent character, of fair business prospects, respectably connected, and of the most happy domestic relations.

The petition alleges, that in October, 1856, defendant made to plaintiff his warranty deed to a certain quarter section of land, for a valuable consideration; that plaintiff has not been permitted to quietly and peaceably hold and enjoy the same, but that the United States had, at the time of mating said deed, and still has, the lawful right and title to the same, and in virtue thereof did evict and eject plaintiff therefrom, whereupon, etc. To this petition defendant…

Mortgage: entering satisfaction. — Action, under section 3670 of the Revision, to recover of the defendant the penalty therein provided, for failure, after request, to satisfy a mortgage made by plaintiff to defendant. The District Court found the facts and the legal conclusions thereon as follows: 1.

Action to recover the damages resulting to plaintiff* for the alleged willful and malicious killing of one roan horso by the defendant; and, also, for the alleged willful and malicious poisoning of two black mares with foal, and the felonious taking and conversion of certain fencing boards by the defendant. The value of all the property is alleged to be $1,020, and $3,000 damages are claimed. Answer in general denial.

This action was commenced February 17, 1868, and tbe petition in its material parts is as follows: Defendants made their promissory note to, etc., the following, words and figures being a true copy, viz.: “ $142.30. “ On or before the 1st of November next, for value received, we, or either of us, promise to pay to the order of Elgy Wilson one hundred and forty-two dollars and thirty cents, with ten per cent interest from date. “BENJAMIN DAWSON, “NEMAN S. CONGER. “April 1,…

On the 22d of August, A. D. 1860, the Dubuque and Sioux City Railroad company, and the Dubuque Elevator company (another corporation) made a contract in writing, of which the following is a copy, viz.: “ Contract between the Dubuque and Sioux City Railroad company, and the Dubuque Elevator company, made this 22d day of August, 1860. “ Said railroad company leases to the Dubuque Elevator company, in consideration of the covenants and agreements hereinafter set forth, a piece…

Plaintiee declares upon three promissory notes, made in 1859, by defendant, one of them to Callista Walker, and the others to Sarah Stoddard, or bearer. They were all made in New York, and payable there. Those to Sarah Stoddard were due in three and four years, and contained these words, “and interest, the interest to be paid annually.” These notes were all indorsed to plaintiff by Alfred Stoddard. The answer is, first, a denial.

Action upon promissory notes executed by defendant Mehlhop, and indorsed by the other defendants to plaintiff, amounting to the sum of $2,000. The answer of defendant Mehlhop sets up, by way of a cross demand, an account for cash, goods, etc., against plaintiff, to the amount of $1,900, which, as shown by the answer, originated in.the following manner: Plaintiff and defendant Mehlhop were copartners in the grocery business.

The defendant was indicted for obstructing a highway. Plea, not guilty. On the trial, the State offered in evidence two volumes of records: one a “road record,” and the other a “ road, plat, and survey repord ” of Clayton county, and proposed to read to the jury from the first, as follows : “May Term, A. D. 1855.

Deed oe trust — payment—estoppel — eeeect oe DEGREE AGAINST TRUSTEE ALONE CANCELING THE TRUST deed — interest—contribution.—This is a proceeding to foreclose a deed of trust from William T. Lovell to John J. Dyer, trustee, made to secure the payment of a note for $2,000 to A. M. Newman. This deed of trust was recorded October 5, 1853.

Bill to redeem. — These facts' appear from the petition: Thomas W. Pope, plaintiff’s ancestor, on the 1st of May, 1858, made his note to the defendant, Thomas Durant, for the sum of $1,269, payable May 1, 1866, with ten per cent, payable annually, on the 1st of January.

<p> Appeal from, Appanoose District Court. </p>

In Chancery. • — ■ The plaintiffs, who are tax payers of Washington county,*in May, 1860, filed the original bill herein, to restrain Owen, the treasurer of the county, and others, from the.… Held: that the decisions of this court which held these bonds consonant with the Constitution and Code, were a part of the laws of the land, and that bonds issued, while the court so held, would be enforced.

Replevin for certain cattle owned by plaintiff, and attempted to be held as trespassing animals by defendant, etc. The answer sets up that defendant was appointed guardian of certain heirs who were owners of a mineral lot; that as such guardian she took possession thereof, and under and by virtue of the authority of such of said minors who have become of age, she has continued the same; that at the time of the trespass hereinafter stated said lot was inclosed by a fence…

<p>1. Criminal law: false pretenses. An indictment for obtaining- property or money under false pretenses cannot be predicated upon representations Which are mere matters of opinion.</p> <p>2. -An indictment for this oifense should clearly state that the money or property was obtained by means of false representations or pretenses.</p>

Liability of county for defective bridges, etc. — This is an action against the county of. Henry to recover damages sustained by tbe plaintiff while traveling on a public highway within the county, on account of a defect in a small bridge or wooden culvert, part of the road or highway. ■ The county, by its answer, denied all liability.

<p> Appeal from, Jones District Court. </p> <p>The will of Emory Wooster, after providing for tbe payment of debts, contained this clause: “ The residue of my estate, real and personal I give, bequeath and dispose of as follows, to wit: To my wife, one-half of my real estate also all my personal property during her natural life and at her decease to be equally divided between my two daughters, the one-half of my real estate I bequeath to my two daughters and their heirs.”</p> <p>In a proceeding for partition brought by plaintiffs who held under the daughters, the question was, whether the widow took a life estate only, or the fee in one-half of the real estate. The court below held, that she took for life only, and from this ruling she appeals.</p>

Evidence: res gestas. — Replevin for cattle. The plaintiff claims to be the owner by virtue of a purchase from one Richard Murray. The sheriff was made defendant in the replevin, and defends by virtue of a levy under an execution in favor of one Brown and against the said Richard Murray, alleging that the sale of the cattle from Richard to the plaintiff was fraudulent. The plaintiff claiméd that he purchased the cattle from Richard in payment of a board bill against him.

The petition charges that defendant did keep, and allow to run at large, two rams of a vicious disposition, and accustomed to attack and butt and stamp mankind, and so known to defendant. That Christiana Gray, wife of plaintiff, was attacked by said rams, and so greatly injured that her death resulted therefrom, whereby plaintiff was deprived of her society and services, and greatly damaged.

This action was commenced in April, 1868, upon a school warrant made in August, 1865, payable to Andrews & Bigelow, or bearer, due April 1, 1866, out of the contingent fund, for maps, keys, charts, globes and other school apparatus. Submitted to the court; judgment for the defendant. Plaintiff appeals.

Fraudulent conveyance, etc. — Plaintiff brought an action at law to recover possession of the lands in controversy. ' Defendant answered, denying plaintiff’s title, and setting up title in himself, making his answer a cross-petition in equity, alleging that the plaintiff claimed title under certain judgments against his brother .Shelton A. King, and that the judgments and the sheriff’s sales and deeds thereunder were collusive,’sham, fraudulent and void, and praying that…

Compromise agreement : mistake oe eaot : recording act, etc. — Plaintiff brought this action to foreclose a mortgage made by the defendant Coats, on certain real estate, and the appellant, Seeley, is made a defendant, as claiming some interest therein. The present controversy is between the plaintiff and Seeley. The latter set up that he had a mortgage on the land in controversy older than the plaintiff’s mortgage.

<p>1. Criminal law: testimony on accomplice: corroboration. An accomplice cannot be corroborated in bis testimony against tbe defendant, by tbe failure of tbe latter to introduce tbe testimony of witnesses present at tbe trial, wbo, if tbe testimony of tbe accomplice bad been false, might bave contradicted bim.</p> <p>2. -Tbe accused, in sack case, bas tbe right to stand upon tbe law (Rev. § 4102) requiring tbe testimony of tbe accomplice to be corroborated by “ other evidence; ” and no basis for a presumption in favoi- of the accomplice’s testimony, can arise from tbe failure of tbe defendant to controvert it. Lynch law proceedings severely condemned by Dillon, Ch. J.</p> <p>3. -evidence. Tbe minutes of testimony taken by tbe justice upon tbe preliminary examination, as prescribed in section 4593 of tbe Revision, are not conclusive when introduced by tbe defendant on bis trial in tbe District Court, as to wbat tbe witnesses testified to upon such examination.</p>

Action upon an account for work and labor, and materials furnished.

Action on a bill of exchange drawn by Lathrop & Darnall, in Mount Pleasant, Iowa, upon Atwood & Co. of New York, payable to the order of A. Eoads. Upon the back of the bill there was the following: “ Pay T. Whiting cash. James McLeran, A. Eoads.” The bill was dated February 27, 1861, and made payable ninety days after date, and acceptance waived.

Thomas Dodds died seized of certain real estate, leaving a widow, the defendant, and his mother, but neither issue'nor father surviving him. The real estate consisted of certain lands, and three lots in Mount Pleasant constituting his homestead which remained in occupancy of the widow. The mother of Dodds conveyed her interest in the real estate to plaintiffs, who bring this action to partition the same.

The petition contains a statement of the following facts, namely: That Mahlon Kingman died May 2, 1856, possessed of a large estate, upon which administration was granted, July, 1856, to Susan Kingman, widow of decedent ; that the appraisment of said estate returned to the County Court, exhibits the value of said estate to have been $13,131, and claims were allowed against the same by said court to the amount of $1,005, and no part of said claims lias been paid; that James…

Henry Markell bad for some years been engaged in business at Dubuque, as a banker, under tbe name of H. Markell & Co. He kept an account with. Austin Corbin & Co., bankers in New York city, upon whom he was in the daily practice of drawing drafts and selling them to his customers and others in the usual way of business.

Action commended before a justice of the peace by a landlord against his tenant, upon an account for work and labor, grain and use of tools, etc. Answer in denial; defendant also claimed a set-off for work and labor and for use of horses, etc., and also set up a claim for the failure of plaintiff to perform covenants of lease, to repair house, dig a well, etc., and annexed a copy of lease to the answer; the answer averred, “ that there is due and owing ■ to defendant over…

This is an action in chancery to enforce the conveyance by defendant of certain land to plaintiffs, who are the widow and heirs at law of James Gainor, deceased, a son of defendant. The facts sufficiently appear in the opinion. The District Court dismissed the bill. Plaintiffs appeal.

This is a proceeding by information in the nature of a quo warranto, filed by the district attorney on March 28, 1868, under chapter 151 of the Revision of 1860, sections 3752 to 3757.

Contract : evidence oe experts : practice : exceptions, etc. — Defendants were contractors on the Burlington and Mo. Biver B. B. They sublet sections 29, 30 and 33, to one Ditto, who agreed to do all the grading and exearations required to be done, according to tbe directions of tbe engineer of tbe railroad company, at a specified price per yard. Ditto assigned his rights under tbe contract to one Kay, and tbe latter to tbe plaintiff.

On the 3d day of June, 1857, the firm of J. & C. T. McCune and defendant, Burke, executed their promissory note to J. A. Graham, for $2,490.80, payable in sixty days, without any stipulation as to interest thereon. Subsequent to the execution of this note, and in the year 1857, C. T. McCune died; plaintiff is his administrator.

The petition contains substantially tbe following averments as a cause of action.

On tbe 4th of March, 1867, plaintiff was in defendant s employ as a brakeman. He was on the train (freight) going east in discharge of his duties, and upon descending from one of the cars, while the train was switching and in motion, was struck by the bars of a cattle chute, which had been left projecting, knocked from the car, and thrown under the train, which passed over and crushed both his. arms. One of them was afterward amputated, and the other rendered useless.

The plaintiff, in her petition, prays for a divorce and alimony; the original notice states the claim of plaintiff to be for a divorce,-and was served personally. At the November Term, 1865, a decree was rendered divorcing the parties, and a judgment against defendant for $800 as alimony was recovered by plaintiff in the same proceeding. The decree and judgment were rendered upon the default of the defendant for want of appearance.

In equity : injunction. —Demurrer to petition sus tained and plaintiff appeals.

Agency : garnishment : liability op garnishee, etc. — • The plaintiffs, creditors of one Brigham Bead, garnished the defendants, Howard & Co., claiming that they had in their possession goods belonging to Bead. Plaintiff’s suit against Bead was commenced by attachment, Jwne 4, 1866, and the process of garnishment served on Howard & Co. the same day.

Appeal from Clinton District Court. ' Equity. — Demurrer to petition sustained, and plaintiff appeals. Eor the questions involved, see the opinion.

In equity. — The plaintiff’s bill sought to have the balance due on a certain decree of foreclosure for money satisfied, on the ground that it was agreed between the parties prior to the foreclosure, that if the present plaintiff (the mortgagor) would make no ‘defense, and if the present defendant (the mortgagee) should get title to the mortgaged property, he should take the same in satisfaction of the debt. The defendant obtained his decree.

Action for damages resulting to plaintiff by reason of an insufficient bridge across tbe Chariton river, in said county of Lucas. There was a trial to a jury; verdict and judgment for plaintiff. The defendant appeals. The further necessary facts are stated in the opinion.

One Shaver was indicted at the Decatur District Court for larceny and the venue changed to Clark county, from which it was again changed to Warren county. The accused gave bond with securities at the Clark District Court to secure his appearance at the District Court of Warren county, which was • forfeited on account of his non-appearance according to its conditions.

The plaintiffs brought suit against the defendants, Stevens and Alverson, to recover the price of a barrel of brandy sold by plaintiffs to defendants. There was personal service of notice upon each of the defendants. At the April Term, 1867, which was the appearance term, the defendant Stevens appeared by attorney and filed his demurrer to the petition, and a motion for a more specific statement. Both were sustained.

An information was filed against the defendant before a justice of the peace charging him with the crime of “ malicious trespass,” in carrying certain saw-logs of the value of $12, from the land of another. There was a trial to a jury and a verdict of “not guilty.” The State in due time and form appealed to the District Court. On defendant’s motion the appeal was dismissed on the ground that, after acquittal in the inferior court the State could not again put him upon trial.

Forgery. — The indictment charges that one David Burns was a justice of the peace, and, as such, authorized by tbe board of supervisors to count and destroy gopher sealps produced before biro, and make and issue bis certificate of sueb counting and destruction to tbe parties producing tbe same before bim; that said certificates were taken and received by tbe said supervisors as legal proof of the counting, etc., for tbe purpose of issuing warrants thereon to the holders…

Action of replevin for certain property seized by the defendant as marshal and collector of taxes for the city of Lyons.

Until about the 1st of October, 1866, J. M. & A. Virgin were in partnership, under the firm name of J. M. Virgin & Bro., transacting a general mercantile business. They then dissolved, J. M. V. taking the stock, and agreeing to pay the firm debts. They owed plaintiff, at that time, near $800, for goods, a portion of them then. being in said store.

Action in chancery commenced July 11, 1861. The petition sets out that the State Bank of Indiana, on the 14th day of February, 1850, recovered in the District Court of Wapello county, a judgment against Charles F. Harrow, for the sum of $2,519.25, upon an indebtedness contracted in 1840.

False pretenses : construction oe statute : notarial PROTESTS AS EVIDENCE IN CRIMINAL CASES: RIGHT RESULT NOT VITIATED BY'IMMATERIAL ERRORS, ETC.-Indictment under section 4394 of the [Revision for cheating by false pretenses.

On the 12th day of March, 1858, J. P. Chandler and James T. Lockhart executed a deed of trust conveying certain lands to Spaulding, sheriff of Polk county, to secure Samuel Hunt in the sum of $1,222.85, to be paid by them on the 12th day of December, 1858. The instrument authorized Spaulding, “ or other acting sheriff,” upon default in payment of said sum at maturity, to sell the lands at public outcry upon giving certain notice.

This is a proceeding upon the petition of plaintiff to vacate a certain decree of foreclosure rendered upon default, and for a trial upon the merits. The decree was rendered within one year previous to the commencement of this proceeding. The defendant herein was plaintiff in the foreclosure action, and the plaintiff in this proceeding and another, were the defendants in that action. A demurrer to the petition was sustained. Plaintiff appeals.

The court below found tbe following facts : 1. Prior to September 16, 1867, one Michel owned the W. i, N. W. i, etc., and authorized defendant to sell it, agreeing that he should have for his services whatever he obtained for the same over $600. 2. On the day named defendant sold the land to plaintiff for $8 per acre — $50 in hand and the balance to be paid when the deed was delivered. 3.

Action on a promissory note by an indorsee. Defense, fraud and failure óf consideration, of which plaintiff had knowledge; and that the note sued on is still the property of the jiayee and is not plaintiff’s. The further facts are stated in the opinion. The defendants appeal.

Action in equity to compel the conveyance by defendant Rachel A. Morse of a certain forty acres of land purchased by defendants for, and the consideration of which was paid with the property of, the plaintiff and her husband. Plaintiff’s husband is now deceased, and she claims to be his sole devisee. Defense, in denial, and the statute of limitations. There was a trial by the first method, and judgment for plaintiff. The defendants appeal.

This is a suit in chancery, commenced in 1857, to enforce the performance of a trust under which it is alleged the ancestor of defendants held the title to certain lands. The bill prays for a partition of the lands. The facts, as shown by the record, are briefly as follows : Charles F. Harrow, about the year 1843, settled in Wapello county.

The defendant in this proceeding .instituted an action to foreclose a certain mortgage, making plaintiff herein, John Brown, and one. John Luscomb defendants. A decree was had, foreclosing said mortgage, at the September Term, 1867, of the Tama District Court, upon default of both of said defendants to appear. September 8, 1868 (less than one year after the rendition'of said decree), plaintiff commenced this proceeding.

Costs : motion : appeal : exception. — Action by plaintiff before a justice on a lease, alleging breaches. Defense in denial, and a cross action on the attachment bond filed by the plaintiff. Plaintiff had judgment before the justice, and the defendant appealed to the District Court. On a trial in the latter court, the jury returned a general verdict for the defendant for fifty cents.

<p> Appeal from Keolculc District Court. </p> <p>On tbe trial to tbe court, tbe following facts were found: In February, 1865, the defendant Presinda, being then the wife of her co-defendant, William, made her note to Mary Parker, and secured the same by mortgage on certain real estate of which she was the actual owner, and to which she had the title in her own name. The husband did not join in making either the note or mortgage. After this, in July, 1865, the defendants sold the land so mortgaged to plaintiff, executing a deed therefor, with full covenants of warranty. In June, 1868, an action was commenced to foreclose this mortgage against the wife and the present plaintiff. Service was had on both. These defendants neglected and refused to pay the note and have the mortgage canceled, and plaintiff, in August afterward, paid the full amount of the note, and took an assignment thereof, but without any “benefit from the mortgage executed to secure the same.”</p> <p>This action was then commenced against husband and wife to recover the amount thus paid, with interest, the plaintiff counting upon a breach of the covenant against incumbrances contained in the deed.</p> <p>The court found, that the refusal of defendants to remove the incumbrance was a breach of the covenant contained in the deed; that they were both liable thereon, and that plaintiff was entitled to recover against them, the sum paid by him to remove such incumbrance, with interest. Judgment accordingly, and defendants appeal.</p>

This is a summary proceeding, under chapter 13d of 'the [Revision of 1860, on a motion by a client against his attorney for an order requiring the attorney to pay over money collected. There was judgment for defendant. Plaintiff appeals. The further necessary facts are stated in the opinion.

Action for trespass; trial to a jury. Yerdict and judgment for plaintiff for one dollar and costs. The defendant appeals.

Alfred Reeves, in his life-time, owned a certain half lot in the town of Sigourney, upon which there was a dwelling. While such owner, he executed a mortgage thereon to Pinkerton, and on the 3d day of September, 1859, defendant owning a part of the mortgage debt, obtained the legal title to said lot by sale and foreclosure under said mortgage, which he had purchased.

Action to recover a quarter section of land. Plaintiffs’ chain of title is as follows: August 13, 1853, Rauder, the assignee thereof, located a military bounty land warrant upon the land, and received from the register of the United States land office at which the location was made, the usual certificate of location.

County roads : curattvr act of 1868. — The plaintiffs are owners of land through which a county road was established by the board of supervisors, October 15, 1867. The defendants are the road supervisors and the township clerk. The present suit was commenced after the “Act to legalize the establishment of county roads” (Laws of 1868, p. 40, copied in note*), went into effect.

Excessive judgment: motion to correct in court below, etc. — Action on anote; personal service; judgment by default on computation of amount by the clerk. Defendant appeals.

On tbe 4th day of March, 1868, the plaintiff brought suit in the District Court of Keokuk county, on two promissory notes, against the defendant, O. M. Harshberger, as maker thereof, and obtained a writ of attachment which was levied the same day upon thirty acres of land situated in Keokuk county. At the October Term, 1868, of said court, defendant having accepted service of notice, judgment was rendered in favor of plaintiff for the amount due upon said notes.

New trial : evidence not under oath : review oe action oe court below, eto. — Action for an alleged fraudulent warranty by the defendant respecting a horse by him traded to the plaintiff. Answer in denial. The jury returned a verdict for the plaintiff.

<p> Appeal from Dubuque District Court. </p> <p>Demurrer to petition sustained, and plaintiff appeals.</p>

Action of mandamus under chapter 153 of the Revi» sion of 1860.

Evidence where executor is an adverse party, etc. —■ Plaintiff made a contract with Joseph Bates, in his lifetime, for the purchase of a certain tract of land, paying down thereon five dollars, and agreeing, on his return home to Illinois, to send by express the balance of the purchase money, to wit, $1,000, to Bates, in the care of one Kellogg, at Nevada, in Story county, Iowa.

Plaintiff is the-'widow of John T. -Huey. In tbis action she seeks to recover of tbe defendant, Samuel C. Huey, and bis co-defendants (wbo are sureties upon bis bond as executor of tbe husband’s estate), tbe amount of ber distributive share as such widow. Trial and judgment for plaintiff, and defendants appeal.

Action by ordinary proceedings upon two bills of exchange for $1,500 each, drawn by one Hooper upon Howells, Patton & 00., and by them accepted August 6, 1854, and afterward indorsed by tbe drawer to plaintiff, and also upon a promissory note executed by Said firm July 1, 1854, to plaintiff, for $858. Tbe said firm of Howells, Patton &p 0o., consisted of Israel P, Howells, tbe defendants Andrew Patton and Moses H. Xeever; Howells died before tbe commencement of this suit.

- Plaintdte’s cow was struck and killed by a locomotive, on defendant’s road. Tbe accident occurred in the city of Mount Pleasant (an incorporated city), and on the depot grounds of said company.

Plaintiee claims double the value of a horse killed by defendant’s locomotive, in the town or village of Oxford. The road was constructed before the town was laid off, and runs east and west through what is now the most densely settled portion of it. The strip running through the town, upon which is found the railroad track, seems to be wide enough, and designed to afford room for teaming and driving on each side thereof.

This case has been affirmed, on motion; this affirmance set aside, and this motion, being reheard, will be found considered in the opinion following, which disposes of the case upon its merits. Plaintiff recovered three hundred and forty dollars, double the value of a mare killed on defendants’ road, near the station house and on their depot grounds, at the town of Florence. For the other facts see opinion. Defendant appeals.

Action to recover the value, of $1,500, of seven-thirty bonds of the United States, dated July 15, 1865, left by plaintiff with the bank on special deposit, or “ for safe keeping.” The bank failed, and the defendant, H. W. Sample, was appointed receiver, by the comptroller of the currency, under the act to provide a national currency, etc.,” approved June 3, 1864.

Action upon two promissory notes. Defense, that they were given in part consideration for engine and mill machinery; that plaintiffs fraudulently represented that they were the owners thereof; that the same had been taken and sold from' defendants under a mortgage upon the property at the time of their purchase, and they ask to recover back what they have paid, etc. Reply, that defendants were to pay the mortgage as part of the consideration for the purchase; fraud is denied.

<p>1. Continuance ¡ discretion. The action of the court below in overruling a motion for a continuance, will not be disturbed where no abuse of discretion is shown.</p> <p>2. Amendment ¡ variance. The allowance of an amendment permitting the plaintiff on the trial, to obviate the effect of a variance in the date of a note as set out in a copy attached to the petition, from that in the note as introduced in evidence, is not erroneous.</p>

<p>Vendor and vendee: assignment or bond: bents. The assignment of a title bond for real estate does not invest the assignee with the right to rents of the premises that were fully accrued before such assignment. Aliter, if the assignment was before the rent had accrued.</p>

Married women : power to contract : liability : release OE DOWER : AGREEMENT TO SEPARATE, ETC.-Action at law by the payee against the maber of… Held: or hereafter to be acquired,” by the defendant; and no other consideration whatever than the execution of said deed entered into and formed a part of the consideration of said note; that at the time the said note and deed were executed, the same were done by defendant and said Alexander Reynolds, with the design and view of a…

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

El Paul, and served process of garnishment upon the Burlington branch of the State Bank of Iowa. An injunction was allowed restraining said bank from paying certain moneys on deposit in her name to Caroline Paul, on the grounds, as shown in the application therefor, that the money was in fact deposited by defendant, J. F. Paul, her husband, and was his own, and that she had no interest therein.

Appeal from Mahaska District Court Dependants demurred to the petition for the writ; the demurrer was sustained, and plaintiffs appeal.

<p>SCHOOL LAND CONTRACTS: THE CASE OE HENN, ADMR., V. THE STATE UNIVERSITY, 33 IOWA, 185, RE-AEEIRMED.</p>

Appeal from Mills District Court Action to recover $100 which plaintiff alleges defendant undertook to pay him on account of a certain farm, sold by defendant to plaintiff, remaining in possession of a tenant, whereby plaintiff was deprived of the occupation of the same. Verdict and judgment for defendant. Plaintiff appeals.

Defendant’s non-residence is not in dispute. The parties differ as to the value of the property in controversy (real estate), and how this value is to he shown.

He also asks that an accounting he had, and the amount of indebtedness from one to the other ascertained and settled. The defendant denies the trust relation, insisting that the sales were absolute, and that plaintiff is still largely his debtor. It seems that, commencing in 1855 or 1856, and continuing for several years, defendant loaned and advanced to plaintiff, and for his use, large sums of money.

One Malone was the common source of title, and he first mortgaged the same, with other lands, to defendants, who commenced foreclosure proceedings in September, 1858, procured a decree in May, 1860, and purchased thereunder in January, 1862. In September, 1857, Malone sold with another eighty acres (not covered by defendant’s mortgage) to Headley and Holbrook, receiving a mortgage back to secure the purchase money.

<p> Appealfrom Marion District Court </p> <p>Action in equity for a specific performance. Demurrer to petition overruled. The defendant appeals.</p>

The suit was commenced by attachment, and real estate of the defendant attached under the writ. Personal service was made on the defendant in Michigan, he being a non-resident of this State. There was an appearance hy attorney; answer filed traversing petition; jury trial; verdict and judgment for plaintiff. The defendant appeals.