Volume 3 — Iowa Reports

This was an action of trespass, for taking two loads of sand from tbe soil of tbe plaintiff, McManus. Tbe locus in quo is in Scott county, and in tbe Mississippi river. Held: that the riparian proprietor on our great inland rivers, owns to the middle of the stream: New York. The cases here have been somewhat conflicting, but have ultimately settled in favor of the ad filum medium vice. Angelí on Waiter Courses, 562;.

The defendant, as sheriff of Warren county, by virtue of several writs of attachment, seized certain goods and chattels as the property of one Stewart, the defendant, on said writs. The plaintiff replevied said property, claiming the same to he his, and to be entitled to the immediate possession of the same.

District Court. This was a submission to arbitration by tbe following article: “ Marietta, January 7th, 1854. “We, Mablon Woodward and Dewit C. Atwater, or Marshall county, Iowa, severally agree and -bjnd ourselves to arbitrate a matter of controversy relating to a certain piece of land in said'county.

In this case, the usual notice under the Code was issued, and placed in the hands of the sheriff, to which he made the following return: “ Served the within notice on the within named Henry Bumm, by reading it to him' personally.

This was an application to set aside an award made under tbe following agreement for submission: “ Whereas Michael Otis Sullivan was upset in a stage of John Erink & Co.’s, on or about the 15th day of March, A. D. 1854, under circumstances rendering the said John Erink & Co. liable to pay said Sullivan his legal damages; and whereas there is no dispute about the liability, and as the parties are mutually .desirous of settling the amount of damages to be paid, in an amicable…

The plaintiff sued the defendants for trespass, in entering upon, his land, and cutting and carrying away timber therefrom. The plaintiff purchased the land of the executors of the will of James P. Carleton, deceased. The defendants justified under a license or contract with the same executors, made before the plaintiff purchased.

On the 21st of August, 1855, Barron filed bis bill in equity in tbe District Court in Scott county, against Eliphalet Easton, William Hall, administrator of Ora M. Burke, deceased, Albert 0.

This was a proceeding to perfect a tax title, under section 606 of the Code. The defendant was not personally served, but the notice being returned “ not found,” an order was made for publication, and the cause continued. At the next term, proof of publication was filed, but no proof was made of tbe sending a copy of tbe petition and notice to defendant, or any excuse shown for not so sending them, as required by section 1826.

This was an action to recover damages resulting to plaintiff, from the act of defendant in setting out fire, and permitting the same to escape, and pass on to the plaintiff’s premises, and burn up a large amount of rails and other property.

This was an action to recover the possession of tbe west half of lot 2, in block 2, in Davenport. Botb parties claim title under Henry Farenholz., who received a conveyance of the premises from Henry Bliss. Bliss, on the 18th of June, 1851, before he conveyed to Henry Farenholz, mortgaged the premises to Antoine Yeager, to secure the payment of fifty dollars.

Appeal from the Warren District Court, This action was instituted by Dougherty before a justice of tbe peace, against Posegate, to recover a certain sum of money, alleged to haYe been lost by tbe negligence of tbe defendant, and taken by appeal to tbe District Court, where judgment was rendered for tbe plaintiff. Tbe defendant appeals. Tbe facts of tbe case and tbe errors assigned, are fully stated in tbe opinion of tbe court.

This is an action by plaintiff, as assignee of tbe following receipt, to recover of defendant the value of the corn therein mentioned; “1,000 bushels corn. Leclaire, Iowa, June 30th, 1854. “ Received in store, on account of S. F. Atwood, of Chicago, Illinois, one thousand bushels of good, sound, merchantable shelled corn, to be delivered to his order, to the steamboat landing at Leclaire, in gunny sacks, in good order, free of charges. Risk of fire excepted. W. II.

This was a petition in chancery, to enforce the specific execution of an agreement to convey certain real estate, and to enjoin proceedings at law, to recover the possession of •' the same, begun by defendant.

This is an action on an attachment bond. The affidavit on which the attachment, issued, alleged, that on the belief of the affiant, the defendants in the attachment snit, were about to dispose of their property, without leaving sufficient remaining for the payment of their debts; that defendants had property, goods and money not exempt from execution, which they refuse to give, either in payment or .security of ■ said debt; and that said defendants were, by selling…

This was a bill in chancery to rescind a contract for the sale of land, and for damages, on the ground of fraud in the procurement thereof. The fraud is alleged to consist in the defendant’s 'haying fraudulently and falsely represented the land to be free from overflow — to be healthy — and that the occupants (defendant and his family, for fourteen years) were not subject to ague or fever. All fraud is denied in the answer.

This is an action of right, commenced by the plaintiff, on the 12th day of October, A. D. 1853, to recover the possession of lot No. 64 (A) in the city of Burlington, of which he claims to be the owner in fee simple. The plaintiff claims title as one of the heirs at law of Thomas Cooper, deceased, who was seized of the premises in fee simple at the time of his death. Thomas Cooper was the father of the plaintiff.

Suit on two promissory notes for $357.50 each, dated December 31st, 1852, and payable with interest, one and two years after date, purporting to have been made by defendant to one William Young, and assigned to plaintiff, January 3d, 1856. The answer of defendant is a general denial of the plaintiff’s petition, under oath, on which issue was joined.

Rosanna De Prance, the widow of Hugh De' Prance, being the administratrix upon his estate, or the executrix of his will, gave to Solomon Kerns a promissory note for the payment of one hundred dollars, which she signed, “ Rosanna De Prance, executrix of the estate of Hugh De Prance, deceased.” She afterward married Hite.

This is a suit in chancery, to establish the boundary line between the owners of the northwest quarter of the southwest quarter of section four, township 89, range 2 east, and the southwest quarter of the northwest quarter of the same section.

This suit is brought to recover damages for an alleged fraud practiced upon plaintiff by defendant, in inducing him to enter into a written agreement to take a lot of sheep of the defendant for a'term of years, and to return the same number of merchautable sheep at the end of the time, and also to deliver to defendant, one and a half pounds of wool annually per head.

This is a bill in chancery to canse the respondent to convey to the complainant, the southeast quarter of section one, in township ninety-seven, north of range four, west of the fifth principal meridian, situated in the county of Alamakee, The bill alleges that James Port placed in the hands of J. H. Skeel, land warrant No. 75,279, taking the following receipt: “Received, Lansing, August 81st, 1852, from James Port, land warrants Nos. 10,711 and 75,279, to be located upon…

This was a bill in chancery, praying the specific execution of a contract made by defendant to plaintiff, for tbe sale of a certain tract of land.

The complainants filed their bill in chancery, praying an injunction to stay proceedings on a judgment, in the name of Milburn, against complainants, rendered October 29th,. 1853, for $3,500, in Jefferson county.

This is a bill in equity, commenced by Benjamin F. Frederick, as surviving partner, against the personal representatives and heirs at law of Jacob Frederick, deceased.

This cause was originally tried before a justice of the peace. From the judgment there rendered, defendants appealed. The transcript shows that before the justice, the defendants plead an offset, and also tender. After the appeal, and while the cause was pending in the District Court, the justice made an amended return, showing that the plaintiff, when the case was before him, verbally denied the offset of said defendant, except as to certain items.

This action was brought to recover the amount of certain notes, and also an account. At the April term, 1855, of the District Court in Pottawatamie county, there was a trial by jury, and verdict for plaintiff. A motion was then made for a new trial, because the verdict was contrary to evidence, and the law as given by the court, as. well as- for other reasons. This motion was- overruled.

This is a petition for the foreclosure of a mortgage upon ten acres of ground, including a mill site, given by Sehaup to Yeach, on the 26th September, 1853, to secure the payment of $1,200. The premises were conveyed to Sehaup on the 16th March, 1852, by Catharine Gilmer, who afterwards intermarried with Patrick Killaan. At the time of the conveyance to Sehaup, Geo.

This action was commenced before a justice of the peace. An attachment was issued, and on tbe return day, tbe parties appeared, and defendant moved to dissolve tbe attachment, for tbe reason that tbe writ did not recite that a bond bad been filed, as required by tbe Code. This motion was overruled, and defendant brought tbe cause into tbe District Court, by writ of error.

The defendant pleaded nul tiel record, former recovery, and payment. The questions presented for determination, arise upon these defences. The material facts will be found in the opinion of the court.

This is a suit to recover an amount claimed to be due to plaintiff on a written contract, for the erection of a buildiiig for defendants. Tbe contract in writing, is set forth in the petition. The answer denies any indebtedness, and denies that plaintiff has performed his part of the contract.

This was an action for work and labor done, and materials furnished, in the erection of a house for defendant, and for extra work on a certain other frame house of defendant.

This was an action on the casé, -for slanderous words spoken. The errors assigned, relate to certain instructions, given and refused by the court. It does not appear that at the time of giving and refusing the said instructions, that any objections were made. After verdict, there was a motion by defendant for a new trial, for the reason that the court erred in giving .and refusing the said instructions. This motion was overruled, and judgment on the verdict.

This suit was to recover damages for an alleged trespass by defendants, on lands in possession of plaintiff, by cutting down trees and hauling the same away. The answer of defendants denies the trespass — denies that plaintiff had the rightful possession of the premises, at the time the trespass is alleged to. haye been committed — and pleads title in the premises in Erasmus. Cqop.er, one of defendants. To this there was a replication, denying the answer, and issue joined.

<p>The failure of a justice of the peace, where a party is charged with threatening to commit an offence against the person or property of another, to reduce the evidence to writing, and canse the same to be subscribed by the witnesses, as required by section 2T81 of the Code, furnishes no good reason for dismissing the proceedings, on motion, in the District Court.</p> <p>The jurisdiction of the District Court, in such cases, is in no sense in the nature of an appeal from the judgment or decision of the justice.</p> <p>The justice, if he requires the defendant to give security to keep the peace, will be presumed to have exercised his authority properly.</p> <p>The inquiry in the District Court is as to whether there is still any just reason to fear the commission of an offence against the person or property of the complainant.</p> <p>In the District Court the fullest investigation may be had, and neither party is restricted to the evidence given before the inferior court.</p> <p>Where in a proceeding to require a party to keep the peace, the defendant moved the District Court to dismiss the proceedings, on the ground that the justice had not written down the testimony as required by law; which motion was overruled; and where the evidence of the complainant was in writing and returned to the District Court, and it did not appear from the tran-</p> <p>' script of the justice, that any other witnesses were examined: Held, That it did not appear from the record, that the-justice had not reduced all the evidence to writing; and this court must presume that the justice had done his whole duty.</p> <p>Where in a proceeding to require a party to keep the peace, it was adjudged in the District Court, that the defendant be discharged from his recognizance, upon the payment of costs, and thereupon the defendant moved to retax the costs, for the reason “that the costs, on the hearing in the District Court, could not be taxed against him, he having the right to such hearing upon written testimony, by law required to be sent up by the magistrate,” which motion was overruled: Seld, That the motion could not be sustained on the ground assigned.</p> <p>And in such a case, if the defendant is entitled to be discharged in the District Court from his recognizance, he is equally entitled to be discharged from the costs made in that court. If bound over by the justice, the costs before that officer, are properly chargeable to him, even though he may be discharged in the District Court.</p>

<p> Appeal from the Scott District Court. </p> <p>Bill in chancery to enforce the specific performance of a contract relating to certain ont-lots in the city of Davenport. The case was heard on the pleadings, exhibits and depositions, and the issues found for the defendant. From a record covering nearly two hundred pages, we gather that the facts are substantially these: On the 14th of December, 1840, the defendant sold to one John A. Gano (the father of the complainants), said out-lots, being twenty-five and twenty-six in his second addition to the town of Davenport. He executed to Gano the usual bond for the conveyance of these lots, by good and sufficient warranty deed. Gano was to pay for the lots five hundred dollars, seventy-five of which was paid at the time, one hundred and fifty dollars to be paid on the first day of June, 1841, and the balance in two equal installments in twelve and eighteen months, from the date of the contract. Gano never resided in this state, nor have his heirs, the complainants herein. Gano died on the 9th day of July, JL844, in Cincinnati, Ohio. The complainants were never in this state, after the death of their father, until the year 1853, and this suit was commenced in April, 1854. At his death, he left eight children, all of whom were, minors except one, and three were still under age at the time of the commencement of this suit. There is some testimony tending to show, that defendant received the sum of seventy-five dollars on this contract, in the spring of 1841, but not sufficient to overcome the sworn denial of the payment made in the answer.</p> <p>At the October term, 1842, of the Scott county District Court, defendant brought suit against Gano, for the unpaid purchase money due on this bond. To this suit, defendant appeared by his attorney, and a judgment by nil dicit was rendered in favor of plaintiff, at the June term, 1843, for $464.20,■ the amount of the principal and interest of the remaining payments due on said lots. On the 10th of July, 1843, an execution was issued on this judgment, and on the 26th of August next after, by virtue of said execution, the sheriff sold, and the defendant purchased, the following property of said John A. Gano, for prices following: southeast quarter section 14, township 78, range 4, for $373.33^-; and said out-lots 25 and 26, for $66.66 each. This sale was made under the “ valuation law,” of 1843. At the March term, 1844, without notice to Gano, a motion was made by Leclaire, to set aside this sale, which was sustained, and a new execution ordered. The cause for setting it aside, is not shown. We infer, however, that it was because the property was sold under said “ valuation law,” such sales having been held irregular about that time by our courts. And then afterwards, on the 26th of March, 1844, a second execution issued on said judgment, and thereunder the sheriff sold, and the defendant herein purchased the following property of said Gano, for prices following. The quarter section before mentioned for $270 ; the two out-lots for 65 dollars each; and lot 4, block 63, for 124 dollars, making in all 514 dollars. At that time, the j udgment, interest and costs (including the costs on the first execution), amounted to $523.31. When the first sale was set aside, no order was made as to which party should pay the costs attending the same. The amount of such costs is not conclusively shown, but the probable amount is $9,26. The plaintiff in that suit, receipted the execution in full for his judgment and interest. This property was not redeemed, and in due time the sheriff executed to him a deed in proper form. In April, 1854, and before the commencement of this suit, the complainants in writing, demanded of defendant the specific performance of said contract of December, 1840, at their own costs, and offered to pay any and all sums of money that might be due or owing on said contract.- The performance was refused, and their right to ask the same denied.- There is nothing to show that Cano was in this state subsequent to May, 1841. The weight of the testimony is,, that at or about the time of Gano’s death, his widow and the older children, knew something of his having purchased certain lots of Leclaire in Iowa, but had the impression that their rights were-forfeited by neglect or failure to make payments, and had no expectation of any benefit therefrom, until about the time of the commencement of this suit, when one of the heirs first visited Davenport, on other business. Lot 4, block 68, sold on the execution aforesaid, was sold by the defendant to Gano, for which he held his deed. That the children or widow had knowledge of this bond or contract to convey, at the time of his death, is not positively shown; nor is it shown that they had such knowledge more than six years prior to. the commencement of this suit. Eor some years after the contract with Gano, property in Davenport greatly depreciated in value, but within the last five or six years it has greatly appreciated, and the property now in controversy has become quite valuable. .</p> <p>The court below dismissed the bill, at the costs of complainants, from which decree they appeal.</p>

<p> Appeal from the Warren District Court. </p> <p>On the 27th of April, 1855, Wells gavé to Davenport his due bill for seven hundred and sixty-six pounds of flour, and fifteen and a half bushels of bran, made payable on the same day. On the same day, Davenport demanded the flour and bran, and Wells paid one hundred pounds of flour, but had not the remainder of the articles promised. It is agreed that flour was worth $3.50 per hundred, on that day, and bran six cents per bushel. On the 16th of July, plaintiff again made a demand. The defendant did not deliver the articles, but tendered a sum of money equal to their value, on the 27th of April, at the above prices, with interest. It is agreed that on the 16th of July, flour was worth $5.00 per hundred, and bran the*same as on the former day. The plaintiff re= fused to receive the tender, and brought suit.</p> <p>The court held, that the plaintiff was entitled to the price as it was on the 16th of July, and rendered judgment accordingly. From this, the defendant appeals.</p>

<p> Appeal from the Johnson District Gourt. </p> <p>This suit is brought on three promissory notes, each for the sum of $969.91, dated January 30th, 1854, and payable respectively in six, nine, and twelve months from date, with interest until paid, at the rate of ten per cent, per annum. Each note contains a clause in these words: “If not paid punctually when due, we promise to pay as a penalty for the default, two and a half per cent, per month from maturity till paid.” The defendants answered, denying generally any indebtedness to plaintiffs in the sum claimed, or any less sum on the promissory notes; and for further answer, they deny they are indebted to plaintiffs for any interest as claimed, and they further aver, “ that the said notes, and each of them, are usurious, because they say-that the sum of two and a half per cent, a month, stated in said notes, and which it is alleged these defendants promised to pay as a penalty for default for non-payment, for any and all of said notes, when due, was at the time of making said notes, agreed upon by the parties as the rate of interest which said notes should draw after the same should become due, and was then agreed to be the rate of interest to be paid by defendants to plaintiffs, on the several sums of money named in said notes after the same became due and payable, as the consideration for giving said notes. That there was no further or different consideration agreed upon between the parties, than an indebtedness to the amount of principal stated in said notes, at the time of the execution of said notes by defendants, or for the consideration for the ten per cent, interest; and the interest of two and one-half per cent, per month named as a penalty, and which was intended and agreed upon as interest after the said notes became due. And defendants aver, that said interest is liable to be forfeited by statute in such case made and provided.” To so much of the answer as sets up and avers usury in the notes sued on, there was a demurrer sustained by the court, and the cause coming on for hearing on the petition and exhibits, judgment was rendered for plaintiffs for the amount of the notes and interest at the rate of ten per centum per annum, from their date to their maturity, and for the penalty of two and a half per centum per month, from the maturity of the notes to the date of the judgment.</p> <p>From this judgment, defendants appeal; and assign for error, the sustaining of the demurrer by the court, and the rendering judgment for the penalty of two and a half per centum per month, and for any more than the amount of the notes and ten per centum interest.</p> <p>All technical forms of pleading are abolished by the Code of Iowa. Section 1734 of the Code, provides that any pleading which conveys to the common understanding a reasonable certainty of meaning, or which by a fair and natural construction, shows a substantial cause of action or defence, shall be deemed sufficient. Now, does the defendants’ answer in this case, comply with the requirements of this provision of the Code ? We say it does, we say that defendants’ answer is definite, certain, and legal; and in order to give force to the objections taken in the demurrer, you must set aside the express provisions of the Code (§ 1734), together with the universal practice of the courts of this state. To give force to the objections taken by the demurrer, would be requiring greater certainty in pleading usury, than is required in criminal proceedings at this time. The defence of usury' set up in this case, is based upon the statute of Iowa. Acts of 1853, p. 67. Especial reference is made to sections 4 and 5, of said act. Section 5 provides, that where the unlawful interest is apparent on the face of the contract, the court shall render judgment of forfeiture, whether suit is defended or not. We say the unlawful interest in this case, is apparent on the face of the notes, and the court should have rendered judgment of forfeiture, even if the defendants had not appeared.</p> <p>Again, in section 5 of said act, it is provided that where the unlawful interest is not apparent on the face of the contract, the person contracting shall be a competent witness to prove the contract usurious, &c. In this case, the notes call for two and a half per cent, per month, as a penalty. We aver in our answer, that this two and a half per cent, was agreed to be paid as interest, and that' such was the agreement, and that there was no other consideration. They, by their demurrer admit it, superseding the necessity of proof. Then we say, the court erred in sustaining said demurrer, and rendering said judgment. The word “penalty,” expressed in the notes, amounts to nothing upon the questiouto be decided in this case; and in any case, it is only an indirect way of dodging the word “ interest.”</p> <p>The question whether ,the court erred in sustaining the demurrer to defendants’ answer, necessarily includes the other errors assigned. We, therefore, say that if we have taken the correct view of the pleadings and question involved in this case, the court below erred in sustaining said demurrer, and in the rendition of said judgment, and the judgment below should be reversed.</p> <p>But a single question, is presented by tbe record in tbis case, viz: did the court err in sustaining tbe demurrer to so much of tbe answer of tbe defendants as attempted to set up tbe plea of usury ? We say not. Although it may be true that tbe Code bas abolished all sjsecial pleading and technical forms, it bas not abolished all common sense; nor bas it changed the substance of things. A pleader note must state substan tially what be was required to allege before under tbe old system of pleading. And so tbis court bas decided repeated ly. A plea of usury now, to be good, must contain substantially all tbe material allegations required under tbe former practice. Let us see, then, what are the requisites of a plea of usury.</p> <p>1. Tbe plea must aver that there was an agreement to take illegal interest, and that tbe agreement was corruptly made. Cohee v. Cooper, 8 Blackf. 115; Story on Contracts, 628; McFarland v. State Bank, 4 Pike, 44; 1 Wheat. Selwyn, 563 ; 10 Bac. Abrg. 299, 301.</p> <p>2. Tbe plea or answer must set out tbe terms of tbe usurious contract, tbe principal sum borrowed, and tbe interest agreed to be taken or received. Fay v. Qrimstead, 10 Barb. 321; Could v. Horner, 12 lb. 601; Vroom v. Bilmas, 4 Paige, 526 ; N. 0. Gaslight, Sc., Co. v. Dudley, 8 Paige, 457; Curtis v. Masters, 11 Paige, 17; Cbyes v. Thayer, 3 Hill, 565; Clark v. Moses, Kelly, 143; Halton v. Button, 4 Conn. 436; Wiemer v. Shelton, 7 Missouri, 237; Hancock et al. v. Hodgson, 3 Scam. 329; Livingston v. Indianapolis Ins. Co., 6 Blackf. 133; 1 Wheat. Selwyn, 563 ; 10 Bacon’s Abrg. 299.</p> <p>3. Tbe plea must show either that tbe money was a loan, or that an excess of interest was agreed to be paid, for tbe forbearance of a pre-existing debt, and for giving day of payment. Hancock et al. v. Hodgson, 3 Scam. 329, 301; 1 Wheat. Selwyn, 565; Bacon’s Abrg. 299, 301.</p> <p>4. Tbe said answer must allege a tender of tbe money actually due, and bring tbe same into court. Story on Cont. 635 ; Fanning v. Dunham, 5 Johns. Cb. 122.</p> <p>These are well settled principles, and tried by these, tbe answer is utterly deficient. The answer alleges, after admitting the execution of the notes, and denying that they are indebted for interest, “ that the notes executed by them as aforesaid, and each of them, are and is, usurious, because the sum of two and a half per cent, a month, stated in said notes, and which it is alleged, these defendants promised to pay as a penalty for default for non-payment for any and all of said notes when due, was, at the time of making said notes, agreed upon by the parties to this cause, as the rate of interest which said notes should draw after the same should become due, and was then agreed to be the rate of interest to be paid by the defendants to the plaintiffs, on the several sums of money named in said notes, after the same became due and payable, as the consideration for giving said notes,” and “ that there was no further or different consideration agreed upon between said parties, than an indebtedness to the amount of principal stated in said notes, at the time of the execution of said notes by defendants, or for the consideration for the ten per cent, interest, and the interest of two and one-half per cent, per month, named as a penalty, and which was intended and agreed upon as interest after said notes became due.”</p> <p>Now, in the first place, it will be admitted, that the meaning of this plea or answer, is difficult to arrive at; and, secondly, that it neither states that the agreement was corruptly made; nor that there was an agreement to pay and receive illegal interest; nor the principal sum loaned, and the amount of interest included in said notes, or the rate’over and above legal interest, the defendants agreed to pay ; nor that they agreed so to pay, in consideration that plaintiffs would and did extend the day of payment, is equally clear. In all these requisites of such plea, it is totally deficient. There is, however, one admission in the answer, which is important, yielding, as we conceive, the defendants’ whole case; and that is this, that there was no further or different consideration agreed upon between the said parties, than an indebtedness to the amount of the principal stated in said notes, at the time of their execution. Here the defendants admit, that on the day when the said notes were executed, they owed the plaintiffs the amount stated in said notes, and that such indebtedness was the only consideration for their execution. There is, then, no usurious consideration in said notes; and if they are usurious, they must either be so on their face, or there must have been an agreement that the plaintiffs would not enforce payment when said notes became due, but in consideration of the two and a half per cent, per month, named as a penalty, would allow the said notes to run beyond the day of 'payment, or to a day agreed upon. An allegation of this character, in addition to the other requisites above pointed out, and perhaps without them, would show an unlawful and corrupt agreement, and the answer or plea would be' good.</p> <p>Now, a plea of usury is in the nature of a penal action, and much strictness is required in pleading it. The plea should clearly show that the defence comes within the statute. 10 Bacon’s Abrig. 301.</p> <p>The question then arises, are the notes usurious on their face ? and if so, have the defendants properly taken advantage of it ? If the notes are usurious on their face, the petition is demurrable, and the defendants, instead of answering, should have demurred, and thus raised the question to the court. Matloclc v. Mallory, 19 Ala. 694, cited in 13 U. S. Big. 638.</p> <p>But waiving this, the notes are not usurious on their face. They come within the principle laid down in Wright v. Shuck, Morris, 425. . The notes only bear ten per cent, interest, the legal rate. If the defendants had complied with their contract, they would not be liable to pay anything more. There was no power in the plaintiffs to exact more than the law permitted them to exact. But for the purpose of assuring the plaintiffs that they might rely upon receiving their money when due, the defendants promised to pay a specified penalty ; that penalty is nothing but liquidated damages. There is nothing in the contract which enables the plaintiffs to defer the day of payment, and thus acquire a right to the penalty. If the defendants paid the money when due, no penalty was to be paid at all. They alone have failed to perform their contract; they alone are in default; and in the language of Mason, C. J., in Wright Shuclc, above cited, “it would be contrary to all reason and justice, to allow him (them) to violate his (their) agreement, by not paying at the time, and then set up a consequence of his own breach of the contract, as a protection against all liability thereon.” And it is well settled, that an agreement to pay even double the sum borrowed, or other penalty on the non-payment of the principal debt at a certain day, is not usurious, because it is in the power of the borrower wholly to discharge himself, by repaying the principal; according to the bargain. 10 Bacon’s A.brig. 268, and authorities cited. The case at bar, comes fully within this doctrine, and further argument would seem to be superfluous.</p> <p>In their argument, however, the appellants insist, that the demurrer admits the answer to be true, and hence they reason, that as the answer alleges the notes to be usurious, the demurrer admits the fact, that the notes are usurious. To this it seems hardly necessary to reply, that a demurrer only admits that to be true, which is well pleaded ; that the mere allegation of usury, unsustained by facts, does not constitute a plea of usury; and that if the plea is deficient in any one respect, it is insufficient, and there is no admission upon the record.</p> <p>The plea of usury being bad, for wantof proper averments of fact, showing the usury, and the notes not being usurious on their face, the court properly sustained the demurrer, and rendered judgment for the amount due on the notes.</p>

<p>Appeal from the Alamakee District Court.</p> <p>The plaintiff sues for the value of a mare, which he alleges came into the possession of defendant by finding, and escaped by reason of his negligence. The answer denies all the material allegations of the petition. Erom the testimony (all of which is before us by proper bill of exceptions), it appears that the mare was a work beast, and strayed from plaintiff on the first of May, 1855, and on the next day was stopped by one Evans, at his residence about twenty miles distant, and about half a mile from defendant’s. She had a halter on, and with this Evans fastened her to his fence. Defendant came along shortly after; they talked about the mare, and both thought they knew to whom she belonged. Evans had no stable, and at his request, defendant took the mare with him to his residence, and put her up! On the next day, defendant rode her a short distance, and on his return, put her in his stable, fed her, and fastened the door with its usual fastening. On the next morning, the door was open, the halter broken, and the mare gone. Defendant and another person started in search, and on that day, met the plaintiff coming for her, he having heard that defendant had. taken her up. Defendant told him all the circumstances, and plaintiff required him to deliver the mare, or pay her value. This was refused, and the mare not being found, plaintiff brought this suit to recover her value.</p> <p>On the trial, the court instructed the jury in substance as follows: The defendant must prove that he took up the mare in the civil township in which he resides; and if he did not do so, he had no right to take her up ; and having done so, is liable for her value; and further, that if the mare escaped 'without the fault or neglect of the defendant, and he was faithful in taking care of her, he is not liable ; but in order to avail himself of this defence, he must prove by the estray book of the county, that he gave notice, under his hand and seal, to the clerk of the county judge, of such escape. Other instructions were given, hut as they are not material in the decision of the case, we omit them. To the above instructions, the defendant excepted. Yerdict for the plaintiff, and the usual motions in arrest and for a new trial, were made and overruled. The defendant appeals, and assigns for error these rulings of the court.</p>

<p>"Whenever final judgment is rendered before a justice of the peaee, a party may appeal; and the right of appeal is allowed 'him, whether the judgment complained of is one of law or of fact.</p> <p>Where an action was commenced before a justice of the peace, by attachment, and the entry in the docket of the justice read as follows: “ Panties appeared, January 8th, 1855. Trial had before G- W. Buttles, justice <o£ the peace. On examination, it was found that the defendant had not legal notice, md.that the attachment was not legally served. Therefore, judgment was rendered against plaintiff for fifty dollars and fifty-five cents damages, and costs of amt,” from which judgment the plaintiff appealed to the District Court; and where the defendant moved in the District Court to dismiss the appeal, for the following reasons: “1. No question of fact was presented to the court below for decision, nor was any question of fact decided in that court; therefore, an appeal will not lie. 2. To correct any error in law, or irregularity in the justice’s court, it can only be brought into the District Court by writ of error which motion was sustained by the court, and the appeal dismissed; Meld, That the plaintiff was entitled to have the cause reheard on its merits in the District Court; and that for this purpose, an appeal was the regular and proper mode of obtaining relief.</p>

The plaintiff seeks to recover damages for an alleged breach of warranty, in the sale of a threshing machine. Defendant answers, admitting the contract of sale, but denies, however, that the machine was defective, in the particulars alleged iu the petition; and avers that it was broken by plaintiff’s own negligence; that defendant at one time repaired it, and plaintiff again broke it, by like negligence, and improper usage. To this, there was a replication in denial.

The defendant, Hawthorne, made his promissory note to his oo-defendant, Smyser, for $300, which Smyser, before the same fell due, assigned to the plaintiff. Held: that there was sufficient proof of notice; and the remark by Parsons, “ that indorsers were not liable, without proof of demand and notice,” was not called for by the case, being a mere obiter dictum.

The plaintiff sued the defendant on his promissory note, for $159, given to one G. W. Savary, and payable to Mm or bearer, in three months from date, and dated at Batavia, May 28th, 1851.

Slander. Yerdict and judgment for plaintiff. Tbe petition. contains twelve counts, charging the slanderous words to have been spoken in various forms.

On the 15tb of March, 1854, tbe defendant herein executed to plaintiff the following receipt: “ Oskaloosa, March 15th. “ Received of John T. Robertson, fifty dollars, to enter the southwest quarter of northwest quarter of section 8, in township 76 north, range 15 west. Jas. A. Seevers.” It appears that for his trouble in and about entering said lands, plaintiff paid defendant, at the time of executing said receipt, one dollar.

Trespass guare clausum fregit. Answer denying specifically all tbe matters contained in tbe petition; in substance, tbe plea of not guilty. No replication was filed, and after tbe jury was sworn, defendant insisted tbat bis answer being unreplied to, must be taken as true, and objected to saxy testimony on part of plaintiff to sustain bis action. This objection was sustained, and there being no evidence, tbe jury under tbe direction of tbe court, found for defendant.

The plaintiffs had recovered á judgment on a promissory note against the firm of Wyman & Cave; and had levied this execution on the tract of land in dispute. This was levied upon as the property of Cave only. The plaintiffs bring this action, in the nature of an action of ejectment, or of right to recover the land. The defendant sets up a right of homestead on the land, and claims that it was exempt from the execution.

This is a very confused record, but shows substantially the following facts: On the 1st of August, 1855, plaintiff placed in the sheriff’s hands his original notice. This notice states that “ a petition is now on file,” and was served on one of tbe defendants, on the 15th of the same month.

This cause stands on demurrer to a bill in chancery. The facts alleged, are substantially as follows: That David. Held: that a court of equity was the proper forum. We presume the Supreme Court will hold the same again. Gammel would have a poor show, if law said, 11 you must go to equity,” and equity said, ■“ you must go to law.” 8.

The petitioners, twelve in number, residents of Lee county, and tax payers therein, applied by petition to the District Court of Lee county, sitting at Port Madison, to have certain proceedings of the county judge of said county declared illegal and void, and for an injunction to restrain him from taking stock in the name of the county, in certain roads mentioned in the petition, and from issuing the bonds of said county in payment thereof.

This action was commenced before a justice of tbe peace; trial and judgment for plaintiff, from wbicb defendant appealed. The justice’s transcript shows, that the action was brought on account for ninety dollars, for medical services, and that plaintiff filed his book of original accounts. It also appears that the original notice was lost, after the trial before the justice.

This cause was before this court at tbe December term, A.D. 1855, when tbe judgment below was reversed, and will be found fully reported in… Held: tbat it was “competent for such creditors as choose not to come in under tbe assignment, always to raise the question, whether an assignment claiming to he partial, is not, in fact, general, and to give evidence to show such fact, which under proper instructions, is to he submitted to the jury, Now, here, tbe assignment purports…

Seduction. — On. the trial, the defendant asked various instructions, which were refused, as is shown by the bill of exceptions, because of their inapplicability, and because the same had been given in the instructions in chief. The material facts sufficiently appear in the opinion of tbe court. Tbe defendant appeals.

This cause was brought into the District Court by writ of error, to correct an alleged erroneous decision of a justice of the peace. From the bill of exceptions it appears, that before the justice, the defendant offered in evidence certain books of account, which were objected to, and the objection sustained, which ruling was affirmed by the District Court. Defendant appeals, and assigns for error the judgment of the court below, affirming the decision of the justice.

Bill in chancery, seeking to enforce specific performance of a contract for the conveyance of real estate. Despondent in bar of plaintiff’s right to recover, sets up the following, among other defences.

This action was commenced before a justice of tbe peace, to recover an amount claimed tobe due on a promissory note.

This was a bill in chancery, filed at the November term, 1854, to enforce the performance of a contract for the sale of certain lands in Delaware county.

This was a creditor’s bill filed by complainants, to reach certain real estate held by the respondent, Mary A. Howes, which they allege should be made liable to the payment of certain judgments which they obtained against her late husband, Eobert G. Anderson.

Suit to recover of Samuel Pitt, aud William Parker, the amount of two joint and several negotiable promissory notes, for $300 each, given by them, payable to plaintiff’s intestate, dated November 9th, 1847, and payable respectively in fourteen and twenty-six months, with interest at the rate of ten per centum per annum.

72, in the town of Dubuque, Iowa, and that there is a two story brick building thereon, also owned by him, in which he resides and carries on his business; that the defendants have commenced the erection of a building on the adjacent lot, No. 72 a, on the south of the plaintiff’s lot, and have cut holes in the wall of plaintiff’s building, and were preparing and threatening to use the south wall for the purpose of introducing therein, and supporting thereon, the joists and…

This was an action of replevin for certain cattle. Defendant answered, denying the plaintiff’s' right to the possession, and also alleging as a special ground of defence, that said cattle, (which he admits to be the property of plaintiff,) did on the 17th day of August, 1856, trespass upon the uninclosed land of defendant, and while so trespassing, and after he had suffered damage to the amount of fifty dollars, he, said defendant, distrained the same, as he had a right to…

The defendant was indicted in the county of Monroe, for the crime of murder. At the next term, the said defendant, owing to the prej udice and excitement against him in the county of Monroe, had the venue changed to the county of Lucas.

' At the September term, A.D. 1854, of the District Court in Monroe county, the plaintiff in error was indicted for an assault with intent to murder. On his petition, the venue was changed to Lucas county, where he was convicted of an assault, and battery. The plaintiff assigns for erior, certain rulings of the court below, wbicb will be found sufficiently stated in tbe opinion of tbe court.

The petition in tbis case, claims to recover on a promissory note, made at Portland, Maine, and dated October 8tb, 1844, payable on demand, with interest. The suit was commenced July 9 th, 1855. Held: that the acknowledgments and promises must specify or plainly refer to some particular demand or cause of action to be revived or created by them.

The petition in this case, avers that Scott deposited with, or paid to the firm of Granger & Reynolds, (the defendant being the survivor), a sum of money, for the purpose of entering a certain parcel of real estate, for which he obtained their receipt, stating the amount of money, and the land that was to be entered; that they agreed and undertook to enter the same, without delay; that they failed to do so, however, but with the intention of defrauding and injuring…

The appellants, Ralph and Yan Shaick, executed their promissory note to Wilson and Neely, for the sum of $220; who assigned the same to the plaintiff. The note not being paid at maturity, Wilson brought suit upon it against the makers and indorsers. The note was payable to Ralph and Yan Shaick, without words of negotiability. The petition does not allege any demand by the plaintiff, upon the makers of the note, nor any notice to assignors of its non-payment.

This is a bill in chancery by tbe vendee, seeking to reform, and. also to compel tbe vendor to specifically perform, á written contract for tbe conveyance of certain real estate. Tbe respondents demurred to tbe bill, for tbe following reasons : 1. Tbat tbe court bad no jurisdiction to correct tbe mistake in tbe contract, and then decree a specific performance of the contract, when so corrected. 2.

This action was commenced before a justice of tbe peace. Defendant appealed to tbe District Court, where he made a motion to dismiss the cause; offered to introduce certain testimony ; and asked instructions, which were rejected and refused by the court, and judgment being against him, he appeals to this court, where the following errors are assigned : 1. The court erred in overruling defendant’s motion to dismiss the suit. 2.

This is an action brought upon five county -warrants, each of which is of the following tenor: “ Office of County Judge, $300. “ Polk County, Iowa, June 14th, 1855. “The treasurer of said county will pay to James Campbell, or bearer, the sum of three hundred dollars, out of any money not otherwise appropriated.” They are signed by the county judge, and sealed with the seal of the county.

Plaintiffs declare upon a judgment rendered in the Court of Common Pleas of Eayette county, Pennsylvania. To the declaration is attached what purports to be a transcript of the judgment, the material facts of which are as follows : On the 21st of May, 1838, plaintiffs filed their precipe and statement, claiming of defendants the sum of $153.96, in an action of debt on a sealed note.

Trial and verdict for defendant. On the same day, plaintiffs filed their motion to set aside the verdict, and for a new' trial, which was overruled, and judgment on the verdict. On the next day, this motion was renewed, the plaintiffs filing in support thereof, the affidavit of one of the jurors who tried the case, to the effect that the verdict was not voluntary on his part; that it was made without his consent; and that it was never his verdict.

This is an action brought to recover for services rendered • on a written contract, dated 23d February, 1854, to take effect on tbe 21st March, and to continue for one year, by which the plaintiff undertook to perform the duties of editor of the Dubuque Weekly Tribune, and those of proof reader, and the defendant was to pay ten dollars per week for the editorial duties, and an additional compensation for the other services.

The defendant Webster, sued tbe plaintiff Raver, for a tort, and procured an attachment against his property. The affidavit stated, “that said Raver had money, goods and chattels, lands and tenements, which are not exempt from execution, which he refuses to apply to the payment or security of said damages, though requested so to do by your petitioner.” On the trial of that action, there was judgment for Raver.

In March, 1855, the defendants, as the children and heirs of Andrew Stingley, deceased, filed their bill in chaneery against complainants, seeking the specific performance of .a parol contract for the sale of certain real estate therein named. To this bill, respondents appeared and answered, denying specifically the allegations of said petition.

<p>Where the maker of a promissory note, payable in personal property at the option of the maker, indicates to the payee his election to deliver the property according to the tenor of the note, and the payee refuses to receive the property, the maker of the note is so far relieved from the duty of tendering the property, or setting it apart for the payee, that the obligation cannot be converted into a money demand, nor its payment as such enforced, without a further demand for the properly upon the maker.</p> <p>Where once the election is made by the maker, to pay "in specific articles, and' notice given by him to the payee or holder of the note, of his readiness to deliver them, a refusal to receive them discharges the maker, until a subsequent demand shall revive his liability.</p> <p>Where suit was brought on a promissory note, payable on or before a given day, and which contained the following provision: “which may be discharged in good merchantable brick, delivered in the eity of Keokuk, at cash price;” and where the defendant answered, admitting the execution of the note, and averring, that he has all the time been ready to deliver said brick; that he was ready to pay the note, at the time it was due, in good merchantable brick, delivered in the city of Keokuk, at the cash price; and that he so informed the plaintiff at the time the note was due, and plaintiff refused to accept the same, which answer was demurred to; and where the court sustained the demurrer, and rendered judgment for the plaintiff for the amount of the note; Held, That the demurrer was improperly sustained.</p>

<p> Appeal from the Muscatine District Court. </p> <p>This cause was heard at the December term, 1855. Woodward, J., having been of counsel, took no part in its determination. It was continued under advisement, until the June term, 1856, at which time the judges hearing the same, being divided in opinion, an order was entered affirming the judgment of the District Court, as contemplated by section 1552 of the Code. At the same time, a petition for a rehearing was filed, the consideration of which was continued to the present term, and an order entered during the first week thereof, that the cause be reheard. The defendant now moves for a reconsideration of the order granting the rehearing; that the same be set aside; and that the judgment of affirmance stand as the final adjudication of the cause in this court, for the following reasons:</p> <p>1. There was no authority in the court, to set aside the judgment which the defendant obtained by operation of law.</p> <p>2. The affirmance of the judgment was a legal right of the defendant, and the court had no power to interpose to defeat that right.</p> <p>3. Whenever the state of facts contemplated in sections 1551 and 1552 of the Code, exists in relation to any case, that moment the case is beyond the reach of the court, and it is decided by the law, and not by the court.</p> <p>4. The defendant’s right, being a legal one, does not depend upon the opinion of the court,, nor upon the merits of the cause, but upon the state of the facts.</p> <p>5. Such a case is out of the ordinary track; the judgment does not depend upon the concurrence of the court, but upon the non-concurrence. It is the law stepping in, to restore order out of confusion.</p>

This is an action against a steamboat, instead of against tbe owners thereof, under tbe provisions of chapter 120 of tbe Code. Tbe action is brought upon five bills of lading, signed by the captain of the boat, for the transportation of two hundred and thirty barrels of mess pork, from Dubuque in Iowa, to St. Paul in Minnesota, and ten barrels of the same from Dubuque to Port Douglass.

Bill in chancery to set aside and have declared fraudulent two deeds of certain real estate. Held: that the cause was not appealable, though the defendant had not neglected to appear. Hart v. Strong, 15 Vermont, 377.

This is a suit in chancery, brought by-complainant, to=enforce a specific performance Of the following agreement: “ The state of Iowa, July, 1853.

Thís Was an action of forcible entry and detainer, éófarinenced befoíe a justice of tbé peñce,- ánd appealed by defébdáñt to tbé District Court. Tbe plaintiff tbefe nióvéd to dismiss tbé appeal, and on tbe trial objected to tbe introdüetió'ñ óf aby testimony by defendant, wbicb motion and objection was overrbled. Against plaintiff’s objection, and at defendant's request, tbe jury was instructed, as shown in tbe opinion of tbé court.

This action was brought to recover damages for the alleged fraud of the defendant in the sale of a' “ claim ” on the public lands. It is averred in the petition, and not controverted, that the defendant as evidence of the sale, gave to plaintiff the following written instrument: “ March 24th, 1852.

Two actions were pending in tbe Jackson District Court, one in favor of Jesse, and the other in favor of Jesse and J. H. Tomlinson, against the defendant. At the April term, 1854, of that court, said causes were, by consent of parties, submitted to certain named arbitrators, who were to report at the next term.

A final decree was rendered in. tbis cause, at tbe April term of tbe District Court of Marion county, 1855, in favor of tbe complainant. At tbe February term, 1856, on mo-' tion of tbe defendant Devin, tbe decree was set aside, and a rebearing granted, at tbe costs of tbe complainant, sucb rebearing to take place at next ensuing term. To tbis order setting aside tbe decree, and setting down tbe cause for rebearing, tbe complainant excepted, and appeals to tbis court.

This cause was before this court, at the June term, 1855, and is reported in 1 Iowa, 212. It is also a part of the transaction from which arose that of Campbell v. Ayres, 1 Iowa, 257. The facts are fully stated in the former case, in 1 Iowa, 212, except so far as may be noticed hereafter in the opinion.

The plaintiff claims of defendant the sum of four hundred dollars, on the following cause of action: that plaintiff had at the request of defendant, entered into a negotiation with him for the purchase of a tract of land, described as the east fractional half of northeast quarter, and northwest quarter of southeast quarter of section three, ninety north, eleven west, in Black Hawk county.

This action was brought to recover the amount of a judgment rendered against defendant by the Court of Commop. Pleas of Guernsey county, Ohio. Judgment for plaintiff, and defendant appeals.