Volume 33 — Iowa Reports

The defendant was indicted for the larceny of a horse in Polk county, Iowa, on the 6th day of June, 1869, the property of Ainsworth & Bonbright, and of the value of $100. On a plea of “ not guilty,” he was tried, convicted and sentenced to the State penitentiary for three years. Prom this judgment he appeals. The further facts necessary to a proper understanding of the case are stated in the opinion.

Action for slander. The defense was in denial, and tbe answer also contained several counts setting up mitigating circumstances. Tbe plaintiff demurred to eacb of tbe counts in mitigation; and tbe demurrer was overruled. Tbe cause was tried to a jury, wbo found a verdict for tbe defendant; but on appeal to tbis court tbe judgment thereon was reversed.

The plaintiff filed in the office of John P. Hawer, Esq., an acting justice of the peace in and for Crocker county, a petition claiming of defendant $10 on account of labor performed.

Action to foreclose a title bond against E. Keilmeyer and wife, in default of payment by them to plaintiff. John Weiber, Williams & White, Jacob Beard, James Mellelier, George Ebert, Eairall, Boal & Jackson, Edmunds & Ransom, and other parties were made defendants, as having or claiming liens on the premises, and a decree of foreclosure was prayed against them.

Action by house carpenters to recover balance claimed to be due on a contract for building an addition to a house. Defense, defective and unskillful work, and that plaintiffs bad not completed their contract. Defendant also sets up a counter-claim for defective and unworkmanlike work, etc. Trial to a jury, which found a verdict of five dollars for the defendant. Judgment being entered thereon, the plaintiffs appealed.

Action upon a promissory note against Jones, the maker, and Farley, the payee and guarantor.

, The plaintiff alleges in his petition that the defendants entered into a written contract with plaintiff and Josiah Thompson, by which plaintiff and Thompson delivered to defendants 354 head of sheep, which defendants agreed to take good care of, to keep np the number of the flock, and to deliver to plaintiff and Thompson, annually, at shearing time, two pounds of well washed wool per head.

• Action of right for the possession of the N. W. of the N. E. •£, and N. E. J of N. W. £ of section 31, tp. 77, range 25 west. Upon the answer of, the defendant, the cause was transferred to the chancery docket, and tried by the first method of trying equitable causes. The plaintiff’s petition was dismissed, and he appeals. The facts are stated in the opinion.

The action was upon a bond excuted by C. M. McDaniel and 'Cyril Carpenter, the appellant, as follows : “ Whereas, the board of supervisors of Muscatine county, at their June Session, 1866, appropriated, out of the road and bridge fund of said county, the sum of $150, for the purpose of building three bridges over Honey Creek, in Orono township; and the further sum of $50, for the purpose of completing a bridge on the road leading west from Lord’s Ferry in said township.

Action upon an allegecj contract for quarrying twenty cords of stone. The plaintiff avers that defendant refused to allow him to complete the contract, and claims damages in the sum of $25. The defendant denies the contract, as stated by plaintiff, and sets up a different contract, which, he claims, the plaintiff has broken, to defendant’s damage in the sum of $40. The plaintiff, by reply, denies the 'defendant’s claim.

William Philo was employed by defendant as a brakeman upon a freight train running upon its road. While in the discharge of his duty, under such employment, in an attempt to couple the tender of the locomotive to another car, he was so severely injured that he died within a few hours.

Action to recover damages alleged to have been sustained by the.estate of Sidney S. Mácy, in consequence of his death, occasioned, as is alleged, by the negligence and carelessness of the defendant, in whose service deceased was engaged as a brakeman. Jury trial. Yerdict for plaintiff for $5,000. Motion for new trial overruled. Defendant appeals. The necessary facts are stated in the opinion.

On tbe 28tb day of September, 1870, tbe plaintiff filed in tbe Muscatine district court bis petition, claiming that, as .tbe assignee of tbe estate and effects of Tbomas M. Isett, a bankrupt, be is tbe absolute owner for tbe uses and purposes set forth in “ An act to , establish a uniform system of bankruptcy throughout tbe United States,” of certain real estate in the petition particularly described, and that tbe defendants, George B. ITines and David W. Eames, and Jacob…

Action upon a contract under which plaintiff was employed to teach a school. Having taught part of the term for which he was employed, he was discharged without cause, and this action is brought to recover damage for this breach of the contract. The instrument sued on is signed by the directors of defendant, and approved by its president and secretary, by a writing indorsed thereon and signed by them.

The appellee, Ufford, sued Wilkins, the appellant, to recover damages for an alleged unlawful removal by appellant of a fence, claimed by plaintiff to be on his land. The cause was tried to a jury; verdict for plaintiff, and defendant appeals. The further necessary facts appear in the opinion.

Action upon an instrument in tbe following words: “ $100. Charles City, Iowa, September 6, 1866. “ Tbe undersigned being interested in property in tbe Cedar Yalley, wbicb it is believed will be benefited by tbe extension of the Cedar Falls and Minnesota Railroad to Charles City, in Floyd county, Iowa, for the purpose of inducing said company to extend their road, as aforesaid, promises to pay to the said Cedar Falls and Minnesota Railroad Company, or bearer, $100, as soon as…

Action on promissory note. ' Default and judgment entered, which being set aside on motion of defendant, plaintiff appeals. The further facts appear in the opinion.

Action to recover of defendant for alleged deceit and misrepresentation in the sale of a three year old colt. Trial by the court. Judgment for defendant. Plaintiff appeals. The necessary facts appear in the opinion.

This was an action upon a judgment rendered against defendíant’s intestate before a justice of tbe peace on tbe 15th day of April, 1858, more than ten years prior to the commencement of this action.

Action of slander. The petition, alleges that on or about the 24th day of April, 1871, the defendant, in the presence and hearing of Richard Germond and others, maliciously spolce and published concerning plaintiff the following false and defamatory words, to wit: “ You were the last person in my store; I have missed a pair of shoes, and you took themand “ he ” (referring to plaintiff-’s husband) “ need not come to see me about the shoes unless he comes to pay for them.” On…

<p>1. Acknowledgment: effect of certificate: evidence. While the certificate of acknowledgment to a conveyance establishes a prima facia case that the signature of the person purporting to have executed the conveyance is genuine, this presumption will not prevail against positive evidence to the contrary.</p> <p>2. Evidence: of experts. While the evidence of experts respecting the genuineness of a person’s signature by comparison of handwriting, is entitled to consideration, it is not regarded as evidence of a high order or satisfactory character.</p>

An information before a justice of the peace was filed against the defendant, accusing him of keeping for sale, in violation of law, a keg of beer. The defendant filed a motion to dismiss the cause, upon the grounds that chapter 82, acts thirteenth general assembly, is unconstitutional and void, and that said act was never adopted by the legal voters of Cerro Gordo county. The motion was overruled. The cause was heard, and, the defendant was fined $25.00 and costs.

This action was originally brought before a justice of tbe peace by notice, without petition, claiming $25.00 on book account. Defendant filed a written pleading, denying being indebted to the plaintiff on book account, or in any manner or sum whatever, and pleading a set-off against the plaintiff, part of which was an account against plaintiff due one Goodman, and by him assigned in writing to defendant, dated September 11, 1810.

The plaintiff claims of defendant the amount of a promissory note of §500 payable to the order of defendant, and indorsed by him in the words and figures following, to wit: “ Pay to H. J. Perrin or order; and for value received I hereby guarantee the payment of the within note, E. V. Green.” “ Pay National Bank of Michigan or order, JL J. Perrin.” The petition alleged the non-payment of the note, that Stephen B. Cogswell, the maker, was, and had been since the making of the…

Proqeeding in chancery to enjoin the collection of a judgment rendered against plaintiff by a justice of the peace upon a complaint for an assault and battery.

This suit was brought against the defendant as indorser of a promissory note, made by W. G-. Harding and Daniel Yan Patter, payable to the defendant or order, and by him. indorsed to plaintiff before maturity.

Action to recover compensation for services rendered by plaintiff in procuring proofs necessary to enable defendant to recover indemnity, in money and land scrip, due it for swamp lands sold by the general government witbin the county. Plaintiff claims that he was employed by the defendant, as its agent, for tbe purpose of obtaining- such indemnity, and tbat be has performed certain services as sucb agent, for wbicb tbe amount claimed by him is justly due.

This was an appeal from the court of a justice of tbe peace to tbe circuit^ court. Tbe appeal was dismissed on motion of the appellee. The' defendant appeals to this' court. Tbe facts are stated in the opinion.

This was an action to quiet title to lands of which plaintiff alleged he was the owner in fee simple, and in possession, and that defendants claimed title thereto by tax deed. The defendant answered, claiming title under a decree' of foreclosure on a tax sale of the land, made in 1857, setting out a copy of the decree, the petition and the tax deed. To the answer a demurrer was interposed by plaintiff and sustained by the court. Defendant appeals.

Defendant, Daniel M. Flinn, commenced an action to enjoin tbe collection of a promissory note payable to and held by plaintiffs, Wright, Dryden & Co., executed by defendant and one F. S. Graham. An injunction allowed in the case was dissolved. In a cross-bill filed by Wright, Dryden & Co., they claim to recover against Flinn the amount of the note. In this form the action was tried and the issues involving Flinn’s liability upon the note were determined.

The plaintiff is the widow of George Ellsworth, deceased, intestate. The defendant is administrator of the estate of said decedent. This proceeding was instituted in the circuit court by the widow, to establish her right to certain articles of personal property, a span of mares, a lumber wagon and a set of double harness, which belonged to the decedent at the time of his death.' The circuit court found the property to belong to the plaintiff and made an order accordingly.

Action in equity to enjoin a levy and sale under execution, and to cancel and set aside the judgment upon which it was issued. The judgment plaintiff, Henry Yan Pelt, the sheriff, A. Bunker, and three attorneys who were concerned in issuing the execution, were made defendants. Afterward, one S. B. Cox, upon his petition, was allowed to intervene as defendant; and he filed an answer and cross-bill.

The plaintiffs, in their petition, state that on the 15th day of February, 1869, they obtained a judgment for $250 and costs against Lupton & Blind, a partnership, of which Conrad Blind was a member; that' execution was issued on said judgment and returned unsatisfied; that Philip Blind is a son of Conrad Blind who, it is alleged, fraudulently conveyed to his said son lots 15, 19 and 20, in the city of Ottumwa.

Action in chancery. T'be petition alleges that plaintiff sold and conveyed to defendant, Yoder, certain lands; that a part of the purchase money, $250, remains unpaid; that Yoder executed his written obligation to pay the same as soon as an alleged claim, held by defendant, Mary Stucker, the mother of plaintiff, upon said lands is settled.

Action on account of false and fraudulent representations, deceit and warranty of defendant in the sale of a cow to plaintiff, the alleged deceit and false representation consisting in “ knowingly stating falsely that the cow was coming in the spring.” Answer in special denial. Jury trial. Verdict for plaintiff for $15. Motion for new trial overruled. Judgment upon the verdict. Defendant appeals. The necessary facts are stated in the opinion.

Plaintiff alleges, in liis petition, that, on the 22d day of October, 1869, he executed a joint and several promissory note with the defendants, of wliich the following is a copy : “ $1,000. Center Point, October 22, 1869. “ One year after date we promise to pay to the order of John Bell & Có., $1,000 with ten per cent interest, payable at Center Point, value received. .('ir. S. Stamp,) O. Soper, j 50 cts. y E. W. Stewart, B. yf.

This action is brought to recover for the destruction of plaintiff’s property by fire escaping from defendant’s engine, «through the alleged negligence of defendant and its employees. Trial by jury; verdict- and judgment for plaintiff. Defendant appeals.

Action in equity to set aside a conveyance of the northeast quarter of the south-east quarter of section twenty-five, in township eighty-four, north of range one, east, and for other equitable relief. The defendants demurred to the petition, which demurrer was sustained. ' The plaintiff appeals. The petition is a very long one, but the substantial facts are set out in the following opinion.

Action in equity to set aside a tax deed made to Sarah F. Ransom, for N. W. J of S. E. J, of section 6, township 79, range 7, in pursuance of a sale had on the 7th day of December, 1863. The defendant, Michael Welch, for answer denies plaintiff’s ownership of the land, and avers that defendant is owner through a conveyance from Sarah F. Ransom to George Miller, and of George Miller to Welch. In a cross-bill Welch asks that the title may be quieted in him.

Action upon two promissory notes for $156.90 each, and payable, one in thirty, and one in forty days, with ten per cent interest; made by the defendant to the plaintiffs, and dated Jefferson (Greene Co.), March 23, 1870.

The plaintiffs filed in the Mahaska district court a petition alleging that on the 25th day of November, 1870, Richard Hughes commenced an action against plaintiffs, before the defendant, Geo. H. Baugh, mayor of the city of Oskaloosa, to recover the sum of $27.45.

The petition alleges, that, for more than twenty-one years, a certain road therein described has been used by the public as a highway, and work has been done upon it as such; that the public convenience requires it to be kept open, and that plaintiff is especially interested in the road as it is the nearest, and, at times, the only passable route for him from his home to Des Moines and to his timber.

On the 1th of February, 1871, the parties hereto made an agreement in writing for the submission to three persons named, as arbitrators, certain matters in controversy between them concerning a parol partnership in cattle and other stock; the award was to be returned to the circuit court for record and judgment. On the 1st of March, 1871, the arbitrators made their award of $587, and costs, in favor of Ogden.

Injunction to restrain the foreclosure of a chattel mortgage by notice and sale, on the grounds of usury, and that the saíne had been fully paid off. On a hearing before the court, of defendant’s motion to dissolve, the injunction was modified; and except as modified the motion was overruled, and usury being found, a judgment was rendered against the plaintiff in favor of the school fund. Defendant appeals.

<p> Appeal from Mahaska District Court. </p> <p>The appellant, the Hartford Fire Insurance Co., was duly summoned as garnishee, for being the supposed debtor of the defendant in the action, C. N. Smedley, against whom judgment was recovered. The only questions in this appeal arise upon the following answers: “ Daniel W. Hunt of lawful age, first being duly affirmed, deposes and answers as follows: I am a member of the firm of Cook & Hunt, agents of the Hartford Eire Insurance Company ; that on or about the 4th day of July, A. D. 1870, said company was garnished in the above-entitled cause; that said company is not in any maimer indebted to said defendant Smedley, and does not owe him any money or property; that said company has not in its possession or under its control any property, rights or credits of said defendant; that I do not know of any debts, whether due or not due, owing to said defendant; nor do I know of any property, rights, or credits belonging to him and now in the possession or under the control of others; that sometime during the month of August, A. D. 1870, said firm of Cook & Hunt, as agents of said company, paid to said defendant the sum of $87.50, and received a receipt therefor signed by said defendant; that said money was paid to defendant for the purpose of obtaining a surrender and cancellation of a policy of insurance issued to said defendant by said company, a copy of which policy is attached to the answer of Cook & Hunt, as garnishees in said cause, marked “ Exhibit A; ” that said receipt was given and said policy was surrendered at the time of making said payment of $87.51, andin consideration therefor ; that I am not certain whether the payment could be called unearned premium or not; it was calculated in part, according to the rules of said company for computing unearned premium, but was intended as a lumping arrangement to obtain the surrender of said policy; that there had been a transfer and change of occupancy of the mill property described in and insured under said policy prior to said payment, and also an increase of the “ moral hazard ” in connection with said property ; that by reason of said transfer and change of occupancy, said policy, according to the terms and conditions thereof, became and was void and all rights thereunder forfeited by the assured; but for the purpose of avoiding litigation in case of the destruction of said property by fire, we, the said Cook & Hunt, as agents as aforesaid, under authority from said company, deemed it expedient to purchase a surrender of said policy; that no demand was ever made by said defendant for any unearned premium on said policy, nor for the cancellation of said policy; that no tender was ever made by said company to said defendant of any unearned premium on said policy; that no money or draft was ever sent to Cook & Hunt as agents by said company to pay to said defendant as aforesaid, but said payment was made out of moneys coming into the hands of said agents in the course of their general business for said company, and was charged to the account of said company; that said policy was dated February 3, 1870, and was for $5,000; and said $87.50 was paid for the surrender of said policy, and corresponded to seven months unearned premium; that said transfer, change of occupancy and increased “moral hazard” took place about the latter part of June, A. D. 1870; and about that time said Cook & Hunt, as agents of said corn-pan}^-notified said defendant by letter that said policy was forfeited and void by reason of said transfer and change ofj occupancy,” duly signed and verified.</p> <p>The following are agreed upon by the parties herein as the only provisions or conditions contained in the policy of insurance referred to in the foregoing garnishee answers, that are material to the determination of this cause: “In consideration of $150, etc., do insure, etc., C. N. Smedley for one year, etc., from February 3, 1871, etc. * * * Loss, if any, payable to J. H. Warren, mortgagee, as his interest may appear, * * * Or if the risk be increased by any means within the control of the assured; or any change takes place in the title or possession of the property, whether by sale, legal process,judicial decree, voluntary transfer or conveyance, * * * then, and in every such case, this policy shall be void. This policy may be canceled at any time at request of assured, the company retaining customary monthly short rates for'time' policy has been in force; it may also be canceled at any time by the company on giving written or verbal notice to that effect, and refunding or tendering a ratable proportion of the premium for the unexpired term of the policy.”</p> <p>No issue was taken on said garnishee answers, but the cause was submitted to the court on said answers by motion of plaintiff, that judgment be entered against the Hartford Fire Insurance Company of Hartford, Connecticut, in his favor, for the sum of $87 and $50,100 on the garnishee answers aforesaid. On the 4th day of March, 1871, judgment was entered accordingly, from which the Hartford Fire Insurance Company appeals.</p>

The plaintiff filed his petition alleging that about the 1st day of June, 1859, Dewey Overton, and others, presented their petition to the county court of Marion county, praying for the establishment of a certain county road, and that said court ordered that the prayer of petitioners be granted, to take effect when applicants make said route in good traveling condition at their own expense. .

Action for the enforcement of a mechanic’s lien upon real estate of the defendant for $163, the value of 5,000 feet of lumber sold to defendant, as is alleged, through her agent, F. Hollingsworth, and used in the erection of a dwelling-house on the defendant’s premises, to wit: The south •§• of the south-west -J-, and the north-west J of the south-west J of section 1, township 81, range 20, west. >' The answer admits ownership of the premises, and denies the other…

The plaintiffs filed their petition in equity, alleging that they are owners respectively of farm property or homesteads, within the corporate limits of the city of Mount Yernon, Iowa, which are not within the town plat of Mount Yernon or any of its additions.

Action upon a promissory note. Judgment for plaintiff for $351.60. Motion for a new trial sustained. Plaintiff appeals. The necessary facts are stated in the opinion.

Action for divorce, brought by the husband against the wife, on the ground that she had willfully deserted him and absented herself without a reasonable cause for the space of more than two years. The defendant in her answer denies that she had absented herself without reasonable cause; and also sets up certain acts of cruel and inhuman treatment, etc., upon which she asks alimony, etc. Jury trial; verdict and judgment for defendant, simply denying to plaintiff a divorce.

Action for the recovery of real property —the east % of the north-west \ and the north-west £ of the north-east \ of section 33, township 19, north of range 20, west, in Jasper county.

The petition alleges that on the 28th day of May, 1868, plaintiffs conveyed to defendants an undivided three-fourths interest in a circus canvass tent and other property pertaining thereto, in consideration of the sum of $400, and on the same day defendants entered into a written agreement to reconvey the property upon payment of the sum of $400 and interest, which is in the following words, viz.: “Whereas, S. M. Jones, J. S. Hitch and James M. Gill have this day sold Turck…

Apjpeal from Black Hcmk District Court. This is the third time this cause has been' before us on appeal. For a history of the same see 16 Iowa, 59; 28 id. 253. The plaintiff in his original petition declared on two written contracts, made at different times between the plaintiff and the county judge of Butler county on behalf of the defendant, for the erection of a court-house.

Plaintiff filed a petition stating that she is the absolute owner in fee of lot 2, block 95, Eddy ville, Iowa, and entitled to immediate possession. That defendants unlawfully keep her out of possession, they claiming title through a tax deed which plaintiff claims they fraudulently procured. Defendants purchased said property of A. J. and hi.

The plaintiff filed in the Buena Yista district court a petition as'follows: “ The plaintiff states that, during the month of August,. 1866, plaintiff made a payment to the treasurer of defendant, and in making such payment presented a warrant for $225 more than the amount of the payment he desired to make; that said warrant was duly canceled by the treasurer of defendant, in his official capacity as such treasurer, but that such treasurer utterly neglected and failed to…

The plaintiffs filed their petition, alleging that about the month of May, 1870, the defendants wrongfully entered upon the premises of O. D. Olmstead, agent for the plaintiffs at New Bedford, Butler county, and took, carried away and converted to their own use, one combined reaper and mower, the property of the plaintiffs, of the value of $1,050.

The defendant was indicted tor • murder m the second degree. He was charged with having cut and wounded one B. B. Watts upon the head with a knife on the 7th day of October, 1870, of which wounds the said Watts thereafter died. The defendant was tried by a jury and found guilty. From the judgment and sentence upon the verdict the defendant appeals.

Action in equity to set aside a sheriff’s sale and quiet plaintiff’s .title to one hundred and seventy-seven lots in Sioux city. Bernh'art Henn, Jesse Williams, H. C. Bacon, J. K. Cook and G. D. Temple were in 1857, and before and after that time, partners in banking and land agency business, under the firm name of Henn, Williams & Co. The defendant Allison was clerk for the firm from June, 1857, to the fall of 1858.

Action against defendant as the guarantor of a promissory note. Trial to the court without a jury, and judgment for plaintiff. Defendant appeals.

This is an ordinary action brought by the plaintiff for the recovery of real property — four distinct parcels, three of forty acres each and one of eighty acres — situate in Highland township, Washington county, Iowa. The plaintiff asked for a writ for the possession of said lands, that his title be quieted, for costs and for other relief. The defendants for answer deny the ownership of the lands by plaintiff, and deny that he is entitled to the relief asked.

Petition, filed January 11, 1870, to redeem from foreclosure and sale under a senior mortgage.

Qn the 16tb day of December, 1868, tbe appellant filed his petition in the circuit court of Lucas county, stating that on the 7th day of November, 1868, he purchased of one G. 13.

This action was brought by the plaintiff, Cornelius Beal, to recover of and from the defendants certain real estate which now constitutes a-.' portion of the town of Montana, in said county, including the depot grounds and buildings of the railroad company. The cause was tried to a jury. Yerdict and judgment for defendants, and the plaintiff appeals. The further facts are stated in the opinion.

Action upon a policy of insurance issued to C. K. Howe against loss by fire to tbe amount of $2,800 on his stock of hardware and tinware, and, subsequently to the destruction of the property insured by fire, assigned to plaintiffs. Upon a trial to a jury there was a verdict and a judgment thereon for the amount of the policy and interest. Defendant appeals. The facts of the case are set out in the opinion.

Statute oe limitations. This cause has before been in this court. See 29 Iowa, 302. After it was remanded to the district court an amended answer was filed and it was again tried. The issue presented by the pleadings is whether the note, which is the foundation of the action, is barred by the statute of limitations. The notes became due in 1853, the action was commenced in 1S69.

Defendant was indicted for an assault with intent to commit a great bodily injury, and, upon his arrest, gave bond for his appearance to answer, the indictment. The other defendants are his securities upon the bond. The bond was forfeited by the failure of defendants to answer to the indictment, and this action is brought to recover the penalty thereof. A demurrer to the petition was sustained and plaintiff appeals.

This action was originally brought before a justice of the peace, and taken to the circuit court by appeal. It is based upon a promissory note, of which the following is a copy: “Prairie Cite, Nov. 15, 1868. “ Five months after date, I promise to pay to the order of Bartlett, Sheldon & De’Wolf, $129.16, at ten per cent interest, value received, without any relief from valuation or appraisement laws. “ (Signed) A. PI.

Proceeding to foreclose a mortgage given to secure a Jiromissory note, executed by defendant to plaintiff. Service of the original notice was made by publication, and, defendants failing to appear, default and a decree of foreclosure thereon was rendered. Defendants, subsequently appearing, claimed a re-trial, as provided for by the statute.

The defendant was indicted on the 23d day of November, 1870. At the time the indictment was presented he was not in custody or under bail, nor had he deposited money instead of bail, or been'previously held to answer for the offense charged in the indictment. The first notice defendant had of the indictment was his arreát on a “ bench-warrant,” upon which he was brought before the court at the same term at which the indictment was presented.

'Defendant was indicted and convicted of keeping a nuisance in maintaining and using a building for keeping and selling intoxicating liquors. He was fined in the sum of $500, and now appeals to this court.

The defendants, James H. Hunter, W. L. Walters, John Oawley, J. R. Roberts and E. IT.

Defendant was indicted for murder, convicted of murder in the second degree, and sentenced to the penitentiary for life. Upon appeal to this court this judgment, at the June term, 1870, was reversed, for the reason that, while defendant was put upon trial for murder in the first degree, the indictment charged the crime of murder in the second degree only. The defendant, after remaining in the penitentiary about four months, was released on bail.

Foreclosure oe Mort&age. Defendant Teager pleads that he is the assignee of a mortgage made by his co-defendant Hammond, which he alleges to be prior and superior to plaintiff’s mortgage, and asks a foreclosure, etc. The cause was tried by the court, who made the following finding: 1st. It is found by the court as a fact that, on the 20th day of October, 1869, the defendant Geo.

Action to foreclose a mortgage. The defendants pleaded, as a defense, that the real estate described in the mortgage was by them taken as a homestead on the 6th day of June, 1864, under the act of congress, approved May 20, 1862, entitled “ An act to secure homestead's to actual settlers on the public domain,” and that no patent has been issued to defendants for the land. The action was commenced August 31, 1871.

Action of mandamus to compel the board of supervisors to strike out an item of $5,000, “ moneys and credits ” in appellant’s assessment for the year 1871.

Action on a promissory note for $800, dated February 4, 1865, payable twelve months after by the defendants to the order of plaintiff. The defendant Madren admits the execution of the note, and pleads that, on the 28th day of May, 1868, he was adjudged a bankrupt, and that on that day he was duly discharged from the payment of the note. A copy of such discharge by the United States district court of Iowa is annexed to his answer.

Action- for goods sold and delivered to the defendants who, it is alleged, were partners, under the firm name of B. F. Dratt & Co. The allegations of the petition are all denied in the answer of Myers, and particularly the alleged partnership. Dratt was not served with notice, and made no appearance. The cause was tried to a jury, who returned a verdict for defendant. Judgment rendered thereon, and plaintiff appeals.

- Action to recover for stock, a mare and mule, killed by the defendant’s train.

On the 14th day of September, 1868, tbe plaintiff bled in tbe district court of Guthrie county her petition, alleging that she is the owner of certain lands in tbe petition described; that they were sold by tbe treasurer of Guthrie county to Dexter Reynolds for delinquent taxes of 1858, ’59, ’60 and ’61, and that, on tbe 28th dayof June, 1866, a treasurer’s deed was executed to Reynolds therefor ;■ that Reynolds conveyed said lands' by quit-claim to said Calla-nan ; that…

The defendant was indicted, tried, convicted and sentenced, for the crime of nuisance, as defined in Revision, section 1564; the using of a building for the purpose of selling intoxicating liquors contrary to statute. The defendant appeals.

Action for damages for alleged injuries to Bridget Doulon, from defective sidewalks in the city of Clinton. Trial by jury, verdict and judgment for plaintiffs. Defendant appeals.

The petition alleges that Gafford & Co., a firm composed of Joseph Gafford and Robert B. Foote, entered into a partnership with the defendants, Otis & Snow, for the purpose of buying wool, and that a memorandum and receipt, containing in part .the terms of partnership, was executed and delivered by defendants to Gafford & Co. as follows, to wit: “ Keokuk, June 28, 1864. “ Received of Gafford & Co. $2,000 to invest in wool; said Gafford & Co. to receive two-thirds of the net…

Action at law to recover a part of the purchase-money for certain land sold by plaintiff to defendant. The petition sets up the contract of purchase and sale, and that a part of the consideration remains unpaid and is due plaintiff. The answer admits the purchase of the land by defendant, but denies indebtedness therefor, and avers that defendant has paid the full amount of the consideration.

<p> Appeal from Pottawattamie District Court. </p> <p>Indictment and conviction for rape. Defendant appeals.</p>

This action, was commenced January 23, 1868, at law, to recover damages upon a certain contract made and entered into by and between tbe defendant, Tbe Dubuque and Sioux City Railroad Company, a… Held: that the contract of the plaintiff was entire, and must be performed as a condition precedent to his recovering any part of the compensation for his services.

Action upon a promissory note. Judgment against defendant Bishop, by default, and against Boss, the administrator, upon a trial, who appeals to this court. The facts involved in the case appear in the opinion.

Action to recover an alleged agreed compensation for permitting defendants to patent in their names an invention made by the plaintiff for an improvement in the construction of cast-iron sled runners. The partnership of the defendant is admitted, as is also the allegation that a patent for said improvement was issued to them; the other allegations are denied. The defense is made alone by Frederick, but in the name of the firm.

Action to recover damage for injuries sustained by plaintiff, resulting from the negligence of one under whose control and direction he was employed as a laborer, and who was the servant of plaintiff. The petition alleges that plaintiff was employed by defendant, and that the one whose negligence caused the injury was a servant of defendant, intrusted by him with the control of the work in which plaintiff was engaged.

Action at law upon a promissory note, executed by defendant to Maria Haynes, April 14, 1860, and due one day after date. Tbe petition alleges tbat tbé payee of tbe note died intestate in tbe State of Indiana, July 20, 1862 ; that no administration was ever granted upon her estate, and that plaintiffs are her sole heirs. It is alleged that upon her death the real and personal estate owned by her came into the possession of plaintiffs as her heirs.

This action is brought to recover for professional services rendered to the defendants by Rankin & McOrary, Esqrs., attorneys at law.

Defendant was indicted for an assault with intent to inflict a great bodily injury. He pleaded a former conviction before a justice of the peace, on a charge of assault and battery, alleging that the same act is the foundation of both charges. A demurrer of the State to this plea was overruled. The State appeals.

George Stanley was indicted at the September term, 1870, of the district court of Story county, for the murder of William Patterson, and, at the April term following, was put upon his trial and convicted of murder in the first degree. He now prosecutes this appeal.

Action by the holder of a promissory note against the maker. There was a verdict and judgment for defendant. Plaintiff appeals.

These causes present the same questions. They are both actions to set aside tax deeds held by defendants. They are both equity causes triable by the first method, and were so tried in the district court, and judgment rendered in each case for plaintiff. Defendants appeal.

This action was brought on the 11th day of November, 1869, upon a judgment rendered by the district court of Douglas county, State of Nebraska, on the 25th day of October, 186P, for the sum of $319 damages, and $31.35 costs, in favor of one Edward P. Child and against the defendant herein. The plaintiff avers that the judgment was assigned to him by the plaintiff therein, on the 5th day of September, 1868, and said assignment was entered upon the record of said judgment.

Replevin for two horses and a set of double harness. The cause was tried by the court without a jury, and the following facts found. February 20, 18Y0, plaintiff, Gordon, purchased the property in controversy and certain other property, and gave therefor his promissory notes with Clark, the intervenor, as security.

The defendant is indicted for murder in the second degree, and was tried and convicted of manslaughter, and sentenced to the penitentiary for five years, from which judgment he appeals. The further facts are stated in the opinion.

The plaintiff, in his petition, states that he purchased at Nevada, Iowa, a first-class ticket for a passage on the cars of defendant, from that place to Montana, Iowa; that he entered the cars, and, while riding therein, the conductor of the train, without cause, ordered plaintiff from the car he was then riding in, requiring him' to go into another car; that this command was given in an insulting and abusive manner; that plaintiff refused to comply therewith, and that…

Plaintiee filed a petition as follows: “ I. Count. Defendant is indebted to him in the sum of $1,700, for that plaintiff and defendant and one Daniel Mickey contracted as follows: “ Ainsworth, Iowa, July 27, 1869. “ J. S. McClelland agrees to sell and deliver to Daniel Mickey one thousand bushels of No. 2 wheat, to weigh not less than 56 lbs. in the grain tester, at one dollar and thirty-five cents per bushel, and to be delivered in the month of January nest, seller’s option.

Appeal.from Jackson Circuit Court. The plaintiff filed in the Jackson circuit court a petition claiming of defendants the sum of $357.54, and alleging that: “ On the 6th day of December, 1870, the defendants gave to your petitioner the written order in pencil writing on Mr. Butler, for $152.54 in favor of the plaintiff, which the said Butler did not pay, and oú which there is now due the sum of $147 to the plaintiff.

■Appeal from Lee Cwouit Cowrt. Action of replevin for ten billiard tables, with cues and balls, seized by tbe defendant, John A Bisbop, as tbe property of C. B. Stewart, husband of plaintiff, under an attachment against him in favor of the other defendant, Thomas McKee. Plaintiff claims that she is entitled to the possession of the property.

Action in trespass for willfully and unlawfully entering upon plaintiffs land, and cutting and hauling away timber, to his damage $150. Second count for timber cut and hauled by defendant from plaintiff’s land of the value of $150. Plaintiff only claims to recover upon one count. Answer, First. In denial. Second.

Meads, and by him conveyed to the defendant, Callanan. The petition contained allegations of fact relied upon to defeat the tax title.

Action to recover damage for the loss of a horse killed by a train upon defendant’s road. Twocounts in the petition set out the grounds of recovery. The first count claims recovery, because the defendant’s road was not fenced where the.horse was killed; the s'econd, on the ground that the injury was done, through carelessness of defendant’s servants. There was a verdict and judgment for plaintiff. Defendant appeals.

Action to recover of defendant the amount of a subscription made by her to the stock of the Fort Madison, Farmington and Western Railway Company. Trial by the court; judgment for plaintiff, and defendant appeals.

This action was commenced to establish a mechanic’s lien for lumber furnished to Darius Wilcox and used in a building on premises, on which Darius P. Wilcox held a mortgage.

The plaintiffs brought this action against Paul Grace & Co. for a balance due on merchandise sold and delivered, and attached Luse & Mahana, as garnishees, upon whose answer, as such, issue was taken, which was tried by the court without a jury, and judgment rendered for plaintiffs. The garnishees appeal.

This is a proceeding by petition by W. E. Peterson alone, to vacate a judgment, and it is instituted under Revision, sections 3499 and 3501. The original action was brought October 15,1868, by plaintiffs, against The Platform Publishing Company,” and ~W. H. Fleming, W. S. Peterson, W. E. Peterson, W. H. Leas and others, as stockholders in said company, upon a note given by said corporation to plaintiffs for $608.97.

Action in chancery. The petition, as a cause of action, sets out that plaintiffs, who were residents of the State of Pennsylvania, owned a section of land in Tama county, and that defendants, who were land agents residing in the same county, were the agents of plaintiffs for the payment of taxes upon and for the sale of said land.

Suit in equity to set aside the legal title to certain real estate held by defendant Nancy Mason, as fraudulent, and quiet the title in plaintiffs, who are purchasers thereof at execution sales in their own favor, against L. J. Mason, the husband of said holder of the legal title. The district court granted the prayer of plaintiffs, and the defendants appeal.

Action upon a promissory note. Judgment for defendant. Motion for new trial sustained. Defendant appeals. Tlie necessary facts are stated in the opinion.

The petition states that the defendant employed plaintiff to fill, macadamize, curb, etc., the one-half of a certain street in the city of Dubuque, abutting on property owned by defendant; that by the terms of such employment plaintiff was to furnish the materials for said work; that he did furnish the materials and performed the work. The value of the work and materials is averred and judgment demanded.

Action to recover damages sustained by the estate of Preston Gfreenleaf, in consequence of his death, occasioned, as is claimed, by the negligence and carelessness of defendant, in whose service he was engaged. Jury trial. Verdict and judgment for $2,800. Defendant appeals. The cause was before this court at the June term, 1870, upon the defendant’s appeal, when it was reversed and remanded for new trial. See 29 Iowa, 14.

K. Graves and Wm. A. Fleming, his sureties upon a replevin bond. Decree granting relief prayed. Defendants appeal. The necessary facts are stated in the opinion.