Volume 3 — Greene's Iowa Reports

<p>A party waves his objection to the ruling of the court on demurrer by amending his declaration to méét the objection, ánd going to trial on the merits.</p> <p>Where a written contract appears on its face, to be complete, it cannot be modified, varied or contradicted by parole proof; but if the Writing séems to express only some parts of an agreement-, parole evidence is admissable to prove other silent or doubtful parts of the contract.</p> <p>Where a sheriff, nominally made plaintiff in connection with others who were the real parties in interest, was called upon to testify in behalf of the defendant, it was held that his testimony was admissable, but not so when called upon to testify in behalf of his co-plaintiffs.</p> <p>A written contract made between parties to a suit to compromise and settle, is valid, even if made without any other consideration.</p> <p>A settlement of the cause of action in replevin by one joint defendant is a settlement as to all.</p> <p>Torts such as die with the party cannot be assigned ; but those affecting rights vested ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property may pass by assignment.</p> <p>In a contract between B. and H., B. at the time performed Ms part of the covenants by executing a bill of sale, while IT. was to perform his covenants in future in the management of a suit, <fcc., all of which were averred to have been performed by the pleadings — and,not traversed — held that it was unnecessary to prove performance in order to a recovery.</p> <p>When parties undertake to settle a legal controversy by assigning their respective conflicting claims to a third party in interest, a court of law will. favor such'assignment, so far as it can be done consistently, with established' principles of law, even if such assignment does not amount to a technical release or accord and satisfaction.</p>

<p>Error to Lee District Court.</p>

<p>Error to Leo District Court.</p>

<p>The Legislative act of January 19, 1839, confers jurisdiction upon the district court over the property and persons of insane persons, and similar powers are conferred upon the probate courts, by the act of January 34,</p> <p>. 1841 ; held that the jurisdiction of these courts is rendered concurrent. Whore two statutes, passed at different terms in relation to the same subject matter, the subsequent act does not repeal the former, if both can be made to harmonize.</p> <p>The jurisdiction of a Superior Court, can only be taken away by express words of repeal, or irresistable implication.</p>

<p>Error to the District Court of Lee County.</p>

<p>In attachment proceedings, a delivery bond, executed to the satisfaction of the sheriff, removes the lien from the property attached, and leaveanP under the debtor’s control, subject to his debts, or to another attachment levy ; dnd the fact of its being subsequently attached will not satisfy the'conditions of the delivery bond.</p> <p>The condition of the delivery bond can only be avoided when the property' to be delivered has been lost or destroyed by unavoidable accident or Yiithout negligence.</p>

<p>Error to Des Homes District Oourt.</p>

<p>Error to Lea District Court.</p>

<p>Where a person in the employment of another, was entrusted with a span of horses and wagon, and while thus in charge appropriates them to his own use, the crime is embezzlement, and not larceny under the statutes of Iowa.</p> <p>To constitute the offence of larceny it should appear that the goods were procured animo furandi, or there should have bean evidence tending to show that the property was delivered to the prisoner under the influenoe of false fraudulent or improper efforts.</p>

<p>Error to Dee Moines District Court.</p>

<p>To an indictment for selling liquor without a license, the defendant pleaded; that he had a license, and issue was joined upon that plea, and upon that issue the jury found the defendant guilty; held that the plea should have, been “ not guilty; ” that the-state should not have joined issue upon any other plea, and that the verdict and judgment rendered under such an. issue should ha,vc been arrested.</p>

<p>Error to Lee District Court.</p>

<p>The proceeding by attachment is alone authorized by statutory provisions, and can only be maintained by a substantial compliance with the requirements of the statute ; hence an attachment proceeding is not valid unless the requisite affidavit and bond are filed.</p> <p>An act “ to prevent and punish the owners and masters of steamboats," &c. Laws of 1845, p. 43, does not per see authorize attachment proceedings. If an attachment is issued as proposed by the sixth section of that act, it must still conform to the general attachment law.</p> <p>Without a statute expressly authorizing it, a party cannot sue in bebt for a tort.</p>

<p>The act passed for the benefit of settlers on the “ Half Breed Bandfe" in 1840, cannot be interposed against a title confirmed by the judgment of partition in Spaulding et. al. v. Antonga, et. al. Said act became inoperative by its own limitation, as soon as the title to said “lands” became settled by due course of law.</p> <p>A statute in derogation of common law should, be strictly construed, and confined to the object of its enactment.</p> <p>The judgment of partition absolute.</p>

<p>A special contract for work must prevail unless the departure from it has been so great and general as to render it impossible to connect the contract with the work, or to determine to what part of the work th e contract can apply.</p> <p>Such a contract should regulate the estimates of measure and value.</p>

<p>In Equity. Appeal from Lee District Court.</p>

<p>Error to Lee District Court.</p>

<p>Error to Lee District Court.</p>

<p>Error to Lee District Court.</p>

<p>Error to Lee District Court.</p>

<p>Error to Lee District Court.</p>

<p>Error to Des Moines District Court.</p>

<p>Where by argeement, the defendant was permitted to take a chsBfge of venue, in time for trial at the next term, but neglected to do so; held that it was not error to refuse his motion for a change of venue at a subsequent term.</p>

<p>Error to Des Moines District Court.</p>

<p>Error to Lee District Court.</p>

<p>In Equity. Appeal from Lee District Court.</p>

<p>Error to Lee District Court.</p>

<p>An action of partition should be brought up by writ of error, and not by appeal.</p> <p>‘Tire action of partition a mixed proceeding, of law and equity, in which the equity powers are made subservient to the statute and to common law rules.</p> <p>Partition suits can be adjudicated in the supreme court on errors at law only.</p> <p>The law and equity jurisdiction of the supreme court should be kept distinct, under the constitution.</p> <p>Law and equity not to be blended in the same action.</p> <p>Whether the grantor of a deed was a minor, is a question of fact to be decided by a jury. If decided by the court, it will be presumed that the question was by agreement submitted to the court, and that the court decided correctly.</p>

<p>If tho appellant neglects to file his recognizance, in the district coart, within the time granted, it is not error in the court to dismiss flic appeal.</p>

<p>Error to Des Moines Distinct Court.</p>

<p>Error to Lee District Court.</p>

<p>In Equity. Appeal from Des Moines District Court.</p>

<p>An assessment book, not admitted in evidence, in part proof of a tax title, without first showing the appointment of the equalizing officers. Greene, J. contra.</p> <p>A tax sale, not legal unless all the requirements of the statute have been strictly performed</p> <p>Nothing can be presumed in favor of the proceedings of officers, in order to sustain a tax title. Greene, J. contra.</p> <p>A tax deed for delinquent taxes of 1843, not admissible in evidence, without proof of the assessment, collector's return, <fcc.</p> <p>Under the revenue laws of 1844, lands are not subject to sale for taxes, until three years after the taxes have become due, and remain unpaid. Ahba 7, The State, 1 G. Greene, 225, contra.</p>

<p>An order of the district court, dissolving a writ of attachment, vacates the attachment lien. Such lien is also vacated by a judgment against the plaintiff on demurrer, if rendered absolute by his failure to amend, or to except to tho ruling of the court, on points of error for the supreme court.</p> <p>Whore a judgment appears of record to be final against the attaching plaintiff, the attachment lien not revived as against third parties, if the judgment is subsequently reversed.</p>

<p>Error to Lee District Court.</p>

<p>Error to Van Buren District Court.</p>

<p>In Equity. Appeal from Wapello District Court.</p>

<p>Error to Wapello District Court.</p>

<p>Ja a compromise by which the creditor argrees to take in satisfaction, less? than the amount his duo, if the debtor fails to comply with the terms of the compromise, the creditor is entitled to the full amount of his claim, (a)</p>

<p>Error to Wapello District Court.</p>

<p>After a dissolution, the settling partner may sign the name of the firm to'a note, to settle or liquidate a company debt, but not to cast a new indubt* édness against the firm.</p>

<p>Error to Van Buren District Court.</p>

<p>Error to Jefferson District Court.</p>

<p>An appeal from a justice of tile peace to the district court, in an attachment suit, will not release the plaintiff from liability on bis attachment bond ; as the appeal bond is not substituted for the attachment bond.</p>

<p>A judgment will not be reversed for a proceeding that cannot prejudice the plaintiff in error.</p> <p>On an appeal from a justice of the peace the surety in the recognizance was wanted as a witness, and a new recognizance was authorized in the district court.</p>

<p>Depositions taken after trial in the district court, will not be entertained in. the supreme eourt.</p> <p>Tbe supreme court eannoi entertain original jurisdiction.</p>

<p>In Equity. Appeal from Wapello District Court.</p>

<p>Latitude and discretion recognized in the examination of witnesses.</p> <p>On a cross examination, it is not error to pnt questions to a witness, with the object of impeaching him by‘other testimony.</p> <p>In an action of replevin, on the question of ownership, a conversation with the party who claimed, and bad, the properly in possession, may bo admissible in evidence.</p> <p>A failure to render judgment of cost against either party, is not ground f»r error.</p>

<p>Error to Jefferson District Court.</p>

<p>Error to Jefferson District Court.</p>

<p>Error to Van Buren District Court.</p>

<p>Rails, not. laid in a fence, are no part of the realty.</p> <p>A. owned a claim on public land aid had a quantity of rails, which were in piles at the time B. entered the land; held that the rails were no part ot the realty,‘that they were the property of A., that B. had no right to M'll them to defendant, who had taken them off, and that defendant was 'liable to A. for the value of the rails.</p>

<p>Wheie a, cognovit promised payment in ten months after dato, but authorized a judgment at the next term of court after the date of the judgment note, an d before it ■«•as due ; held, that judgment could be entered at that term of court, with a stay of execution until the ten months elapsed.</p>

<p>A mortgagor, after the mortgage become duo, in consideration of furtiiei time, entered into an engagement to pay the mortgagee tiro additional sum of four per cent interest on the balance due; held that such new engagement did not become a part of the mortgage, and should not be included in the decree of foreclosure.</p>

<p>Error to Jefferson District Court.</p>

<p>A nota promising a payment of seventy-five dollars “on or before the fifteenth of April next,” with a condition, “if paid by the first of April fifty dollars shall discharge the nolo ; ” hold that an endorsement of fifty-five dollars and fifty cents on the ninth of April did not satisfy the note. The failure to pay by the time stipulated, made the penalty binding, and added that amount to the indebtedness.</p>

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

<p>Where a default is set aside on affidavit of merits, and the defendant thereVpon files a demurrer as well as an answer, it is not error under the code, to reject the demurrer.</p>

<p>Where the grounds of error, alleged in an affidavit for a certiorari, are palpably insufficient, and show no error before the justice,' the writ of certiorari may he dismissed, on motion, in the district court.</p> <p>Any defect in an attachment affidavit or hónd can only affect the attachment proceeding, and not the suit, or action upon which the attachment issued.</p>

<p>Where a party plaintiff vas called upon to testify in relation to a cerlain fact in behalf of defendant, plaintiff's attorney has no right to cross-examine him in relation to other matters.</p>

<p>The sworn certificate of a judge and clerk admitted to show certain items in an amended transcript which was lost, in order to show that the adjudication thereon was correct.</p>

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

<p>A bill for an injunction should be verified by affidavit.</p>

<p>Tie supreme court will not disturb matters of fact decided by the court below, when the bill of exceptions does not purport to give all the evidence.</p> <p>Damages may be recovered against a sheriff for an illegal sale of land, if the plaintiff was deprived of his title by such sale.</p>

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

<p>An indictment found should be presented in open court, in presence of the grand jury, and the fact should be certified of record.</p> <p>Parole testimony of a clerk or his deputy not admissible to supply matter which should appear of record.</p>

<p>A. resided in soliool district No. 1, and had Iris store in district No. 2, held that his personal property in. No. 2 was not liable for his sohool tax in No. 1.</p> <p>The thirteenth section of the Revenue Law of 1844, is not repealed by the Revenue Law of 1847.</p> <p>A subsequent law upon the same subject matter does not necessarily repeal the antecedent law; unless the former is expressly repealed or superceded, both should be enforced as far as possible without conflict.</p>

<p>So error in striking out, or sustaining demurrer to pleas that are inapplicable or insufficient.</p> <p>Whore a portion of the pleas were stricken out, without exception, and defendant went to trial on pleas considered good, the ruling of the court below, in relation to the rejected pleas will not be reviewed.</p> <p>In an action of covenant on breach of warranty in a deed, the measure of. damages is the consideration money paid, and interest.</p> <p>The onus probandi lies upon that party who seeks to support his action or defence by facts of which he is supposed to be cognizant.</p> <p>If, in an action of covenant, issue is joined on defendant's plea that he had title at the execution of the deed, the onus devolves on him to show the fact.</p> <p>Parole testimony admissible to show the true consideration paid on a deed.</p> <p>The amount named in a deed, only prima facie evidence of the amount paid.</p>

<p>Error to Muscatine District Court.</p>

<p>Error to Linn District Court.</p>

<p>Where sections 4 and 5, of the gaming law, prohibit the same gamea of chance, and 4lh "excepts games of athletic exercise," and the 5tb § contains no exception, hold that an indictment avering no exception would be good undei'the fifth section.</p> <p>The negative exception, in a penal act, need not be arered, as the defendant may show in defence that his acts come under such exception.</p> <p>In an indictment for suffering gaming it is not necessary to designate the persons who played, nor the amount of money or hind of property lest 04-won. ‘ *</p> <p>When an offence is charged in the language of the statute, it is sufficient.</p>

<p>Where the indorser at the time he assigned the note, requested the indorsee not to enforce collection against the maker until the next fall after the noto became due, and during such indulgence the maker became insolvent ; held that the indorser could show these facts by parole in justification of the delay.</p> <p>An indorser of a note cannot avail himself of delay in commencing suit against the maker, where he expressly requested such indulgance for the maker.</p> <p>Parole evidence admissable to show upon what terms and conditions the note waa assigned by indorsement.</p>

<p>Error to Linn District Court.</p>

<p>Error to Muscatine District Court.</p>

<p>Error to Linn District Court.</p>

<p>Error to Muscatine District Court.</p>

<p>The act, to provide for tbe collection of demands against boats and vessels, only authorizes suits commenced within one year after the cause of action accrued. This limitation is absolute and jurisdictional, and need not be pleaded.</p> <p>The steamboat act is in derogation of the common law, and should be strictly construed; but still, in a manner to give full effect to the remedy intended.</p>

<p>In a proceeding on scire facias to revivo a judgment, defendant recovered judgment on a plea of bankruptcy, nearly three years afler the case was brought to supreme court, without the jilea or certificate of bankruptcy ; held that as the judgment entry shows there was such a plea filed, it will be presumed that the plea was regularly filed with the certificate, and that the proceeding below was correct.</p> <p>Error in the court below will not be presumed; it must be affirmatively shown.</p>

<p>A mere statement of the plaintiff’s cause of action sufficient before a justice of the peace, without filing the transcript of judgment, upon which suit was commenced.</p> <p>A discharge under the insolvent laws of a State do not bar to a non-residen t creditor who did not consent to the discharge, nor is such non-resident creditor barred from his action by having appeared and contested the proceedings in insolvency.</p>

<p>’Where a bill shows equity on its face; and is only defective in .part, a general demurrer to the entire hill should be-oyerruled.</p> <p>¡When a bill discloses a remedy for complainant under the statutory actions of right, or of ejectment, and fails to show that the title could not be settled at law so as to prevent a multiplicity of .suits, it may be dismissed.</p>

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

<p>in slander words are in fchem-'elves actionable, if beiiis; true tliey would subject tlie party charged to an indictment for a crime involving moral turpitude or infamous punishment.</p> <p>Whore the declaration charges actionable words to have been "‘published of, and concerning the plaintiff,” it is not necessary to allege that they were spoken in the presence of some person.</p>

<p>Where money was paid, upon the draft of one of three partners, but paid and used on joint account for the benefit of the firm, held that such advance might be recovered as an item in account against the firm.</p>

<p>Error to Jackson District Court.</p>

<p>B, sold to F. a horse which had been stolon by R., and tabón fiom F. by the owner; held that F. could recover in assumpsit the price paid for the horse, even if the thief had not been tried.</p> <p>£n the sale of chattels where the seller had possession, the law implies a a warranty of title, and a promise to refund is implied, if he did not own the property sold.</p>

<p>Error to Clinton District Court.</p>

<p>Error to Dubuque District Court.</p>

<p>Parties may by agreement, submit a matter in dispute to the decision of 'a justice of the peace, and waive the right of appeal.</p>

<p>Anote for a certain sum in property not negotiable at common law; but such a nolo is assignable under the statute of Iowa; and when payable to bearer may be sued in the name of any holder.</p>

<p>In proving a tender where the party produced the money and offered to pay the amount due on an agreement for a deed, and the other party refused to lake the money or furnish the deed, without any objection to the amount offered, it is sufficiently certain without proving that the money was counted ; nor need the money be deposited in court and the tender kept good.</p> <p>In a case of dependent covenants, to pay money and to give a deed, it ia only necessary .to show a readiness to pay at the time stipulated, in a proceeding for a specific performance, .</p>

<p>Error to Jackson District Court.</p>

<p>Error to Scott District Court.</p>

<p>Error to Dubuque District Court.</p>

<p>Iii a settlement Between an administrator and a creditor of the estate, the administrator gave his individual note in satisfaction, due in nine months; held that the consideration was. sufficient to justify a recovery against the maker ; held also, that the transaction, was an admission of assets jji the hands of the administrator.</p> <p>The act of giving a note is prima facie evidence of consideration.</p>

<p>Error to Dubuque District Court.</p>

<p>J. L. sued M. on an account that was originally dus to S. M., and it was rejected by the justice because suit was not commenced by the legal party; subsequently the account was sued by S. M. for the use of J. L.; held that the first suit was no bar to the second.</p>

<p>Error to Des Moines District Court.</p>

<p>In Equity. Appeal from Henry District Court.</p>

<p>A particular description in a deed ought not to limit the grant made certain» under a general description, unless it can be clearly ascertained from all the words used that it was the intention of the parties to restrict the grant by the particular description.</p> <p>Where there is ambiquity on the face of the deed, the construction should he most favorable to grantee.</p> <p>A judgment of partition is matter of public record, and where a recorded deed refers to such judgment and conveys all the land designated under a certain described share in said partition, it amounts to full notice of all the land or lots comprised in such described share, even of such as might he omitted in a particular description given in the deed.</p> <p>Where land was first sold in satisfaction of a junior judgment, and then subsequently sold to satisfy a senior judgment; held that the sale under the senior judgment should prevail.</p>

<p>In Equity. Appeal from Lee District Court.</p>

<p>Where the record is silent in relation to the service of process, jurisdiction will be presumed, on the ground that courts of general jurisdiction are favored with that legal presumption, which forbids all inquiry into jurisj, diction, in collateral proceedings. But if the record shows no service there is no jurisdiction over the person, and a decree against him is void.</p> <p>Where the record shows that there was no jurisdiction, either over the parties or the subject matter, the judgment and sales under it are void, and may be so declared in a collateral proceeding ; but where the record is silent upon facts necessary to confer jurisdiction, the law presumes the decision correct, and the judgement will be binding till reversed.</p>

<p>M. executed a deed of land to five persons and their successors, as trustees, to be appointed, regulated, and governed, in the manner stipulated in the deed, in trust for a Congregational Churoh, to be subsequently organ-ed in the town of Keokuk, under certain regulations and contingences ; some time after M. died, and his heirs conveyed the same land to S. T. M.; held that as .the object of the trust was not in esse, and as the regulations and contingences had not been observed, the deed first made could not be sustained; held also, that the deed from the heirs divested all contingent interest under the first deed, and vested the title in S. T. M.</p>

<p>The return of the officer upon the writ, must constitute the foundation of all subsequent proceedings against the property, under attachment. Greene, J., eontra.</p> <p>The attachment proceeding being in derogation of common law, by virtue of a special statute, summary and extraordinary, the district court is therefore quo ad hoc a,court of limited jurisdiction. Greene, J., contra.</p> <p>Where the sheriff did not return in express words that the “property attached was (lie property of the debtor,” but merely returned as follows : “January 2d, 1849, levied the within writ by attaching” the land described, and the report of appraisers ; held that the levy was void, and gave no jurisdiction to the court over the property attached ; held, also, that such levy could not be favored by legal intendment, and could be declared void in a collateral proceeding. Greene, J., contra.</p> <p>A certificate of aelcnowlegement is good, if not in the language of the statute, provided, the words in the certificate substantially comply with the object and meaning of the statute.</p>

<p>The non-resident foreigner cannot inlierit the estate of liis resident parent. Greene, J., contra.</p>

<p>Appeal from, the Lee District Court.</p>

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

<p>Error to Lee District Court.</p>

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

<p>A petition to set asile a judgment is defective, unless it avers that Clio judgments uujust and oppressive, and that there is a good defense.</p> <p>The door of equity is open only to such as have been or may be injured, and the injury sustained or apprehended should be clearly set forth in the petition.</p> <p>Where a party has a plain and adequate remedy at law, he cannot resort to chancery.</p>

<p>It a signature is applicable to the substance of the written agreement and is put there by the pprty or by his authority, it is good whether at ths top, in .the middle, or at tlio bottom of the instrument.</p> <p>Where an instrument is written by B. and subscribed by W., and stipulates that W. has sold and agrees to deliver pork to B. at the place and price mentioned the undertaking i s mutual.</p>

<p>A oomplainant cannot preclude respondent from answering under oath.</p> <p>If a sworn answer is waived, it does not affect the right of respondent ia file such answer, nor impair its weight as evidence.</p> <p>Where a deed of trust provides that thirty days notice shall be given in some newspaper, prior to sale, the publication should be continued weekly until the thirty days has expired, between the first and last publication.</p>

<p>A party has no right to use force, unless really necessary to -protect his possession or property.</p> <p>An assault not justified by a mere suspicion or fear of an encroachment.</p>

<p>Where a recognizance ia entered into before the clerk and approved by Mm, Bad is otherwise in compliance with tire statute, it shall have tho effect af a judgment confessed.</p> <p>A bond under seal cannot operate as a judgment confessed, because it Is »ot a-recognizance as provided by statute.</p>

<p>Land was sold on execution in July, 1844, for $21.43, the amount of clerk'* and shoriff’sjees, but tbe deed was not executed and recorded till November, 1848. An alias execution was issued on the same judgment in December, 1844, and was signed by the same person, as clerk, who bought under the first execution, and the same fee bill for which the land was first bid off was attached to and claimed under the alias execution. The land was sold under the alias to A. in February, 1845, and the deed executed to him in July, and recorded in August, 1846. It was proved that the plaintiff said soon after the first sale that he should abandon the purchase. Held that the court below was justified in charging the jury that title to the property was not in the plaintiff.</p> <p>A party cannot object to testimony introduced by bimself.</p>

<p>Where there is unity of interest, as to the object to be attained by a bill is equity, the parties seeking redress may join in the same complaint.</p> <p>Where the land of an intesiate is in chaige of an administrator, he may Bo made a joint party to a bill in chancery in relation, to that iand, the same’ as the real party in interest.</p> <p>A bill is not multifarious where all the parties are interested in the same claim of right, and where the relief sought is of tlie same general char-, acter.</p> <p>Where the exhibits referred to in a bill are matters of public record, they need not be filed in. court.</p> <p>A- bill has equity, which seeks to set asido a judgment of. partition on tho” ground of fraud, and alleges the fraud generally ; and also specially charges the facts and circumstances of fraud, under which the complain-ants- were wronged!by the confederation of the'parties, their agents and' attorneys, and where those faets and circumstances show not only actuals but constructive fraud.</p> <p>If any of tbe charges’ of fraud! in a bill would be good at law, and such a»would’justify relief or discovery, a demurrer to the while bill cannot bo sustained.</p> <p>Wtiere a. bill charges that cunning, deception, falsehood' and artifice wero used to circumvent, cheat and defraud complainants-of their rights, in a judgment of partition, and charges that defendants practiced fraud and imposition upon the the court to procure such judgment, and where tho charges indicate actual fraud in the judgment, a demurrer to tlie bill should not be sustained.</p> <p>Where an attorney confesses judgment against a party, without authority, the party injured is entitled to relief in equity on the ground of fraud.</p>

<p>A district judge cannot' delegate his official authority to another,, nor adopt? the acts of an attorney upon the bench, as the judicial acts of the court; nor can such authority be conferred by agreement of the parties to a suit..</p>

<p>A stranger to the suit cannot release and indemnify a party to the record so as to make him a competent witness for his co-part-ners.</p>

<p>Where 'a bill was. filed to set aside a judgment in partition for fraud, and pendente lite, the .complainant transferred liis interest (to his children, helo?, that such transfer could not be pleaded iu bar to ±h® proceeding.</p> <p>A plea in bar not allowed in chancery, if it depends upon facts which have transpired since the filing o'f the bill. Greene, J., contra.</p> <p>Where the complainant transferred his equity subsequent to the filing of'tlio bill, the purchasers may become complainants by supplemental bill.</p> <p>The doctrine of champerty and maintenance not applicable to this State.</p>

<p>Appeal from Des Moines District Court.</p>

<p>Error to Lee, District Court.</p>

<p>A deed executed in another State is good under the stautes of 1840 and 1841 whether acknowledged according to th'e Bws of that state, or according t'd the statute of 1840.</p> <p>Proof of the execution of a deed which has Been duly acknowledged is not necessary, unless denied under oath.</p>

<p>A purchase at sheriffs sale will be protected, if thp §a}p was authorized by a judgment execution and levy, and if the purphaser paj4 thp price stipulated uhder appraisement. The fact that the appraisement was not made upon actual view of the premises as directed by statute, will not invalidate the sale.</p> <p>A bona Jide purchaser qt p, sheriffs sale under the judgment ip partition of the Half Breed lands, cannot be deprived of his title by proof, dehors thp record, that the execution defendants were minors without guardians, When the judgment was rendered against the property.</p>

<p>The complaint in an action of unlawful detainer, is good, if it avers in substance all the facts required by statute.</p> <p>Parole evidence admissible to show that a party known as G. W. T., signed a lease in the name of E. H. T., and was in possession by virtue of ■ that lease.</p> <p>"Where the payment of rent monthly in advance was stipulated as a condition of the lease, a failure to so pay the rent is a forfeiture of the lease. A tenant cannot deny his landlord’s title; nor justify an unlawful detainer by showing fraud in the lease.</p>

<p>Where a special contract for work stipulated that payment'could be made half in cash and half in goods, and when paymeut was refused by defendant after lie accepted the work, held that plaintiffs might sue as on a money contract.</p> <p>Plaintiffs may recover on indcbitcdis, and common counts in assumpsit for for work and labor performed under a special contract, when the stipulations of the contract were so materially departed from under defendant’s directions, that it could not be sued ou specially.</p>

<p>Where the descriptive words in a deed are free from ambiguity, and I >'irir designate the land granted, and are followed hy ail attorn a'ive and disjims ive clause designating no particular latid, suck alternative «’ausa utay be regarded as surplusage, and will not ira pair the deed.</p>

<p>The judgment of partition of the Half Breed lands in Lee county, fleal and conclusive of ail rights therein adjudicated.</p> <p>Where the bind in controversy is shown by the pleadings to be within the venas of Lire eonrl, proof of its locality is not. necessary.</p> <p>The locality of land designated wiUiiti a given section, township, and range, cs established by government survey, is matter of public record within the judicial knowledge of courts.</p> <p>An instruction on n.n abstract principle of Law and not applicable jto any question of factbefore Hie jury slioiild be refused.</p>

<p>.RkÍpi- Hie Code issues of fact may -be tried by the eonrt .unless one of 'thé piii-ties roquiiesSs jury.</p> <p>Í lie defcmiant is entitled to a jury under the Code even if be refuse to bdranoe the jury fee. The j)l:iiutiff should provide the fee or ample ¡security.</p>

<p>Where an indictment is found against a luíase as a “ dram shop,” the owner occupies the same position and is entitled to the same benefits and protection from the constitution and laws as if the indictment was against himself.</p> <p>A grand jury should be composed of not less than fifteen persons, under thá Code. An indictment found by a jury of less than fifteen, though approved by twelve jurors, is not good.</p> <p>A party cannot be legally brought to trial on an indictment found by a grand jury not authorized by law, and he may take advantage of such indictment on motion.</p> <p>Where a house is indicted it should he so described as to leave no reasonable doubt of its locality.</p>

<p>Error to Davis District Court.</p>

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

<p>Where C. had a claim upon public land and relinquished the same to B„ upon condition that he should advance the purchase money, enter the land and deed half of it to C., on his refunding his portion of the entrance money; held that the conditions were mutual, the considerations sufficient, and that a trust was created which took the case from the statute of frauds.</p>

<p>Appeal from Van Buren District Court.</p>

<p>Where the court recites the facts claimed to have been proved, and directs the jury that they are to determine whether the wrongs were perpetrated or the facts proved, it does not amount to an instruction upon the facts in the case.</p> <p>Where a court charged the jury upon the legal effect of facts, and in impressive, argumentative terms, urges the support of the majesty of the laws against mob violence, it capnot be regarded as calculated to mislead the jury.</p>

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

<p>Where the wife’s dower has been set apart to her, agreeable to the Code, §§ 1294, 1295, and where her inteslate husband left no issue, she is entitled to one-fourth of the remaining two-thirds, equal to one half of the entire estate, after paying the liabilities.</p>

<p>Appeal from Van Buren District Court.</p>

<p>In an action for malicious prosecution the plaintiff must not only prove malice, but he must also show a want of probable cause.</p>

<p>Appear from Jefferson District Court.</p>

<p>In a suit conducted by an administrator of an estate, where- the father is the sole heir at law of the intestate, it is error, under the Code, to admit the father as a witness in behalf of the estate.</p>

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

<p>Error to Jefferson District Court.</p>

<p>Error to Wapello District Court.</p>

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

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

<p>In Equity. Appeal from Marion District Court.</p>

<p>In Equity. Appeal from Polk District Court.</p>

<p>A demurrer under the Code should be special.</p> <p>The averments in a petition or answer, under demurrer, will be regarded as true.</p>

<p>Where liquor was sold by the dram in the grocery store of defendant, by a third party, when defendant Was absent from the store, the evidence should show that the grocery was kept for the purpose of selling liquor by the dram; or that it Was sold by direction or approbation of defendant, in order to justify a verdict against him.</p>

<p>Where the suit is founded on an instrument of writing, filed with the justice, and where the signature is not denied under oath, a non-suit should not he granted for non-appearance of the plaintiff.</p>

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

<p>Where a note is made payable to bearer, possession is prima facie evidence of ownership, without proof of indorsement, and a denial of ownership should be sustained by evidence.</p>

<p>Upon a trial of a question of fact, under the Code, the written decision need not state the evidence upon which the facts were decided ; nor need the facts as found be given in writing, unless requested by one of the parties.</p>

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

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

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

<p>Parole evidence admissahle to show that the defendant was induced to gig/j the contract under the fraudulent misrepresentations of plaintiff.</p>

<p>An officer not liable in trespass for the erroneous exercise of official acts, if he did not exceed his authority or act corruptly.</p>

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

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

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

<p>A subscription paper for improvements in a street, will hold the parties to it, as to a promissory note, and where the payee indorsed the paper over in part payment for the improvement, he.will be held as indorser, and as guarantor of the genuineness of the signatures.</p> <p>Where a subscription paper “ promises to pay as the work progresses,” proof that the work was not finished, not admissible.</p> <p>It will be presumed that the judgment was justified by the evidence.</p>

<p>Appeal from the District Court of Dubuque County.</p>

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

<p>Where the property of G. has been taken and converted, by S., G. may waive the tort and sue in assumpsit.</p> <p>Where the gold dust of G. was sent to him in charge of R., and where it was subsequently mixed and taken by force from R. and delivered to S., and by S. converted into money; held that G. could recover from S. in assumpsit.</p> <p>Spanish law as to mixture of gold dust prevails in California.</p> <p>The decision of a self-constituted tribunal not valid, and should not be respected by judicial tribunals, where coercion has been used.</p>

<p>Error to Clayton District Court.</p>