Volume 36 — Iowa Reports

This is a certiorari proceeding. The defendants are trastees of Center township, in Wapello county, and plaintiff is a tax payer of tbe same township. Under the provisions of chap. 102, acts thirteenth General Assembly, an election was ordered by the trustees, defendants herein, upon the question of levying a tax of one and one-half of one per centum upon the taxable property of the township to aid in the construction of the St. Louis & Cedar Rapids Railroad.

Action in equity. The petition discloses that plaintiff is the owner of a lot in the town of Albia, with the buildings and improvements thereon, which are occupied by himself and family as a homestead. The defendant having recovered a judgment for $769.83 upon a claim against plaintiff, accruing prior to the purchase of the property, has caused execution to be issued thereon and levied upon the homestead.

Action of replevin for a horse, commenced before a justice of the peace. The value of the horse is alleged to be $75, and plaintiff claims ownership under a bill of sale executed by one Ohurch, which, it is alleged, was duly acknowledged and recorded. Defendant sets up ownership of the property, and pleads certain matter assailing the validity of the instrument under which plaintiff claims.

Jacob Davis, by will, dated January 27, 1868, devised and bequeathed all his real and personal property to his children. He soon after married, and died on the 13th day of March, 1870. His will was duly admitted to probate, and his widow, Anna, in addition to the real estate to which she is entitled, claims one-third of all the personal property of the deceased. No provision is made in the will for the claimant.

Action to recover for personal injuries sustained by plaintiff while in the employment of defendant as a brakeman, resulting from the alleged negligence of defendant’s servants. There was a verdict and judgment for plaintiff. Defendant appeals. The facts involved in the points ruled by the court appear in the opinion,

On tbe 13tb day of July, 1872, plaintiff filed in tbe office of a justice of tbe peace a petition claiming of defendant Ruggles, tbe sum of $112 on an account, and asking for an attacbment. On tbe same day service of notice was accepted, with tbe written consent of defendant, that tbe justice take jurisdiction of tbe action, and an attacbment was issued wbereon tbe St. L., K. 0. & N. R. Oo. was garnished.

Action upon a promissory note purporting to be executed by defendant and C. T. Young, his brother. Defendant denies the execution of the note by himself, and avers that his signature thereto is not genuine, but is a forgery. There was a verdict and judgment for defendant. Plaintiff appeals.

This is a suit in equity, brought October 2d, 1871, by the plaintiff, which is a corporation, and the grantee of the Cedar Rapids & Missouri River Railroad Co., of the swamp lands of Story county, against the said county, its treasurer and numerous other persons, purchasers of said lands at tax sales, made October 5th, 1868, to enjoin the conveyance thereof under such sales, to set the same aside and quiet plaintiff’s title, etc. A temporary injunction was granted.

Action to recover damages for injuries the plaintiff alleges he suffered by reason of the negligence of the defendant’s employees, while he was in the employ of the defendant and engaged “as a laborer, loading and unloading a mud train and doing work connected therewith.” The defendant denies its negligence and avers negligence on the part of plaintiff. There was a trial to a jury.

This cause was before tbe court at a prior term upon tbe plaintiff’s appeal from tbe overruling of bis demurrer to tbe answer, and was reversed and remanded. See 32 Iowa, page 181.

This action is brought by the plaintiff to recover of defendant for the killing of a cow and a colt by the cars of the defendant at a point on its railroad where it had the right to fence the same, and that such killing was the result of the negligence of the employees of the defendant. The cause was tried to a jury who returned a verdict for plaintiff. From the judgment thereon defendant appeals. The further facts are stated in the opinion.

This action is brought by the plain tiff as executor of the estate of E. D. McYicker, deceased, upon a promissory note, made to James McYicker, or order, -which it is alleged was the property of said E. D. McYicker at the time of his decease. The defendant answered denying that he signed or executed the note or authorized any one to do so.

Plaintiff sues on a written contract entered into between bimself and tbe defendants for tbe construction by bim of a brick hotel building, and to recover a balance alleged to be due bim tbereon; also to recover for extra work alleged to bave been performed by bim on said hotel building under a parol agreement with defendants, and to establish a mechanic’s lien on tbe building.

Action in chancery to set aside an executor’s sale of lands, and to impeach, for fraud, settlements made with the executor by the court of probate. IJpon a trial, the district court found that the sale of the lands was fraudulent and void, and it was set aside by a proper decree. The defendants appeal. The facts of the ease appear in the opinion.

<p>Promissory note: consideration. A promissory note given in compromise of a doubtful claim is supported by a sufficient consideration. It is not necessary that the claim should be valid at law or in equity.</p>

By this action plaintiff seeks to recover damages resulting from the loss of two horses which were stung hy bees, owned and kept by defendant, and for injuries sustained and pain endured by plaintiff from the same cause. There was a verdict and judgment for plaintiff; defendant appeals. Other facts of the case appear in the opinion,

Appeal from Hamilton Ci/rewit Cov/rt. Action against the indorser of a promissory note. Yerdict and judgment for defendant. Plaintiff appeals.

This action is brought to require, by. mandamus, the defendant, who is a road supervisor, to remove certain fences he has himself placed across an alleged highway running through the defendant’s land, section thirty-one, in township sixty-nine, north of range thirteen west. The issue made between the parties is as to the existence of the highway.

Ayapeal from Floyd Circuit Cowrt. Motion of defendant to retax costs, overruled. Defendant appeals. The necessary facts are stated in the opinion.

Action in tbe circuit court of Jones county, upon an appeal from a judgment of a justice of the peace, for double the value of three calves killed by a train of defendant. The answer avers that the railroad of defendant was properly fenced, and that the calves were killed without fault of defendant. Jury trial. Yerdict and judgment for plaintiff for $60. Defendant appeals. The necessary facts are stated in the opinion.

The defendant was indicted for the crime of maliciously injuring and defacing a fence belonging to one Peter Dunn. Upon trial he was found guilty, and fined $10. From this judgment defendant appeals. The necessary facts are stated in the opinion.

in aid of railways' Suit in equity, by the plaintiffs, who allege that they are citizens and tax payers of St. Charles towhship in Floyd county, against Childs as treasurer of the county and the McGregor and Sioux City Railway. Company, to enjoin the collection of a tax of two and one-half per cent, voted by the citizens of said township in aid of the construction of said railway.

<p>1. Criminal law: ABORTION: JURISDICTION. In a prosecution for abortion under section 4321 of the Revision, the jurisdiction is with the county wherein the medicine intended to produce a miscarriage was administered, and not in that where the miscarriage took place.</p> <p>2. -Section 4507, providing that where a public offense is committed in part in one county and part in another, or when the acts or effects constituting the offense occur in different counties, the jurisdiction is in either, does not apply, for the reason that the administering of the medicine with the intent charged makes the offense complete.</p>

Action upon, a note signed by Gabriel Jordan and E. F. Clark, of which the following is a copy: “ On or before the 1st of April nest, I promise to pay M. H. Murray the sum of fifty dollars, for value received. Louisa, December 5, 1855.” Defense, that defendant was only surety, and plaintiff, knowing that fact, had, for a consideration, extended to the principal the time' of payment.

Action on a judgment of a sister State. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals. The further facts appear in the opinion.

<p>1. Railroad: injuries resulting from sparks. The case of Gandy v. The OMcago & N. W. JR. JR. Go., 30 Iowa, 430, holding that in an action against the company for injuries resulting from fire, the mere fact that the same was occasioned by sparks emitted from one of its engines, does not establish aprima facie case of negligence against the company, followed.</p> <p>3. -Bat, as in the nature of the case, the plaintiff must labor under difficulties in making proof of negligence, it may be established by circumstances, bearing more or less directly on the case, which might not be satisfactory in other cases free from such difficulty and open to clearer proofs.</p> <p>3. -negligence of plaintiff. In such case defendant asked the court to instruct, that if the plaintiff omitted to take certain precautions to prevent fire thus ignited from communicating with his property, then the same was negligence on his part. Held, that the instruction was properly refused, for the reason that it undertook to decide for the jury that certain acts or omissions would constitute in this respect negligence on the part of the plaintiff. Th& case of Kesee v. The Chicago & W. W. B. B. Co., distinguished and explained.</p> <p>4. Damages: interest: verdict. While the jury might include in their verdict interest on the assessment of damages from the date of the injury, it is not competent for the court to add the same to their verdict.</p>

.This is a suit in equity brought to enforce an alleged trust.

This action was commenced before a justice of the peace under Rev., §§ 1565-1567. There was a judgment entered directing the destruction of the liquors seized upon the warrant issued in the proceedings. The defendant Harris appealed the cause to the District Court, where, upon a trial, a like judgment was entered. He now appeals to this court.

Appeal from Iowa Circuit Cowrt. Action to recover upon the covenants of a deed for lands. A demurrer to the petition was sustained. Plaintiff appeals.

Action to recover a bounty offered to volunteers in tbe war of the rebellion. Answer in denial. Trial to a jury. The President issued a call for three hundred thousand men, December 21,1864.

The pleadings and testimony in this case are the same as in the preceding ease of William Brown against the same defendant, except that the plaintiff in this case volunteered December 21, 1864, being nine days before the bounty was offered by the defendant. The verdict of the jury was for the defendant. The plaintiff appeals.

Appeals from Scott District Court. These cases are alike, and differ from the preceding two only in the facts that the plaintiffs volunteered on the 26th day of January, 1865, three days after the governor’s proclamation, but there is nothing further to show that they had knowledge of it, and their names appear on the clerk’s list of volunteers under the committee appointed by the board of supervisors. The verdict in each case was for the plaintiff. The defendant appeals.

Suit in equity to enjoin a judgment recovered in the circuit court of Scott county by Kohn against Leach and one Heller. The injunction was granted. Afterward the defendants filed a demurrer to the petition, and also a motion to dissolve the injunction, both of which were sustained..

Appeal from Gli/nton District Gowrt. Replevin. Jury trial. Verdict and judgment for defendant. Plaintiff appeals. The further facts appear in the opinion.

This is an action of replevin brought by plaintiffs to recover tbe possession of a bnggy, tbe title to and possession of which they claimed by virtue of a chattel mortgage executed by one John Hoerner, covering this and other property then in possession of said Hoerner. Tbe issue on wbicb the cause was tried is raised by the answer, wbicb alleges in substance, that defendant engaged said Hoerner to manufacture for him a single-seated buggy.

Action for the recovery of real property — the west half of the south-east quarter of section three, in township eighty-one, range eighteen, in Jasper county. Wilson only appears and claims the title. The only question made by the pleadings and upon the evidence is, which party owns the land. The cause was tried to the court upon an agreed statement of facts substantially as follows: First. January 25, 1856, S. Sedoms entered the land of the United States.

This action is brought by the plaintiff, who is a freeholder and elector in sub-district number two of the district township of -Jackson, in the county of Madison, against Thomas Hind-man and others, who constitute the board of school directors for said district township, to obtain a writ of mandamus requiring said defendants to levy and certify a tax yielding $800, for the purpose of building a school-house in said sub-district number two.

On the 4th day of March, 1872, the plaintiff filed his petition as follows: “ Tour petitioner states that in the year 1868, defen dan t was the owner of the north-west quarter of the southwest quarter of section one, township eighty-one, range twenty west. That in May of said year, Frederick Hollingsworth, who was at the time the husband of defendant, purchased of petitioner five thousand feet of lumber with which to erect a dwelling-house for the family of defendant.

Action at law to recover the value of a stock of groceries alleged to have been wrongfully taken by the defendants and converted to their use. The defendants justify under a warrant of seizure in bankruptcy issued by the U. S. district court against the property of Clark & Freer as bankrupts, on the petition of Grannis & Farwell.

This is an action in equity to settle the priorities of claims between several judgment creditors of a deceased debtor. Held: and gave preference to plaintiff. The defendant Kennedy, and J. H. Seaton and Joseph Creese, intervenors, appeal.

The defendant, who is an attorney at law, executed, at the-date thereof, a receipt in the following words: “ Received,. Dubuque, May 17, 1859, of Wm.

The plaintiff presented to the circuit court of Polk county a petition, showing that he is a citizen and tax payer of the county, residing in Des Moines township, and that the treasurer of the county, who is made a defendant, is about to enforce, by sale of property of plaintiff, the collection of a tax found upon the tax books of the county, for the purpose of aiding in the construction of the Des Moines, Winterset & S. W. Railroad.

On the 1st day of April, 1871, the plaintiff, George Zorger, filed in the Linn district court a petition, the portion of which, material to the present consideration, alleges that the plaintiff and many other persons, too numerous to be mentioned, are, and on the 15th day of August, 1870, were owners of taxable property within the township of Rapids, in Linn county.

Action for the value of 1,440 pounds of bacon and 20 tubs of butter, wbicb were shipped upon tbe defendant’s line of railway, consigned to O. T. Buddecke & Co., New Orleans, and wbicb failed to reach tbe consignee.

This action was originally brought March 15th, 1871, by the husband, plaintiff, for a divorce from the wife, defendant, on the ground of cruel and inhuman treatment of the husband by the wife. The petition • contained averments in detail of the alleged cruel and inhuman treatment. The answer denied them substantially.

Action to set aside a tax sale and title. The plaintiff avers that he is the owner by a connected chain of title from the United States to himself, of the N. E. of S. E. of section 2, T. 81, R. 27; that the defendant claims title under a tax sale of the land by the treasurer of Polk county, made October 6, 1868; that at said sale the purchaser and others entered into an agreement to prevent competition in the bidding, and agreed with each other that they would take turns in…

Suit in equity to quiet title to real estate. Decree for plaintiff. Defendant Dolton appeals. The facts of the case are stated in the opinion.

The jurisdiction of defendant formerly extended over four congressional townships. In 1870, plaintiff was created by the division of this territory into two civil townships. This action is brought to enforce a division of the assets, between the old and new districts, which were held by the old at the time plaintiff was created.

This is an action at law. The petition shows that, prior to the 4th day of May, 1872, plaintiff was a corporation under the school laws of the State, and was divided into twenty-two sub-districts ; that on the 17th day of May, 1872, an election was held pursuant to the provisions of chapter 73, acts of the 14th General Assembly, whereat it was determined by the votes of the electors of the district, that each of the sub-districts should be constituted an independent…

Action to recover damages for slanderous words spoken of plaintiff by the defendant, Mary Kirkend all, wife of the defendant, E. B. Kirkendall. The defendant, E. B. Kirkendall, demurred to the petition on the ground that, at the time of the speaking of said words, he was not liable for slanderous words spoken by his wife. The court sustained the demurrer, and rendered judgment for costs in favor of said defendant. Plaintiff appeals.

Action upon a promissory note for $3,989.44, executed by H. T. McNulty to Burton, Hill & Co. or order, dated January 1st, 1870, due six months after date, and indorsed by Burton, Hill & Co. to Geo. W. Burton, and by Geo. W. Burton to plaintiff. The defendant McNulty for answer alleges that the note was executed by him to Geo.

Action upon a covenant against incumbrances. No question arises upon tbe pleadings, under which the following facts, stated as concisely as practicable, were developed. Prior to June, 1857, J. M. Griffiths was the owner of fifty-one lots in Des Moines.

Action upon a recognizance. The petition is as follows: Tour petitioner, The State of Iowa, avers, that heretofore, to-wit: at the January term of this court, A. D. 1870, one Abijah Hughes was indicted, charged with the crime of obtaining money under false pretenses, and was duly admitted to bail in the sum of $4,000.

The plaintiff states in his petition substantially that on or about the 8th day of April, 1871, the defendant carelessly and negligently set fire to, and caused to be burned, the grass, herbage and stumps on his own premises, and negligently allowed the fire to spread and pass to the premises of the plaintiff which were contiguous to those of defendant, whereby plaintiff was injured in his said premises.

<p>1. Mortgage: nobeqlosube eob installment. Foreclosure for an installment due.before the principal amount, and a sale of the property thereunder, exhausts the remedy of the creditor in this respect, and passes a clear and absolute title to the purchaser.</p> <p>2. -The same rule prevails as to the foreclosure of a title bond, for installments due.</p>

Ayypealfrom, Henry Circuit Court. Action in attachment against the Farmers & Merchants’ Insurance Company. Leedham was garnished. The defendant made default and judgment was entered accordingly. Leedham answered to the garnishee process, admitting that he had in his hands an amount of money, the proceeds of certain collections made by him upon certain claims placed in his hands by one Bennison, the receiver of the defendant, appointed by a court of the State of Illinois.

Action in equity to enforce a specific performance of a contract for the conveyance of real estate. Plaintiff’s petition dismissed. Plaintiff appeals. The necessary facts are stated in the opinion.

Action upon the covenants of seizin, warranty, etc., contained in a conveyance of date August 21, 1868, of the N. W. quarter of section 8, township 20, range 1 east, in Platte county, Nebraska, made by the defendant to the plaintiff. A trial to the court was had on the merits, as to the defendant’s title when he conveyed, and judgment was rendered for the plaintiff for the amount of the consideration paid, and interest. The defendant appeals.

<p> Appeal from Hemry Cvreuit Oowrt. </p> <p>The facts of the case are stated in the opinion. The plaintiff appeals.</p>

Ajypealfrom Des Momes District Oowrt. The plaintiff’s petition states that in 1857 he, with one R. C. Kendall, became surety on a promissory note made by Greene, Thomas & Co., to the Burlington Gass-light Company in the sum of $1,000, payable in sixty days; that in 1858 Greene, Thomas & Co. paid off said note in full; that in the same year plaintiff, Tallant, became a non-resident of the State of Iowa, at which time he left with certain persons, named, in Burlington, Iowa,…

<p>Practice: severance of cause of action. Orders of the court below made in connection with granting a motion for plaintiff to sever the causes of action united in his petition will not be disturbed unless a clear abuse of discretion is shown.</p>

Appeal from, Polk District Gowrt. Indictment for keeping a nuisance. Yerdict of guilty, and judgment of fine and imprisonment. The defendant appeals.

Action upon a promissory note. Judgment for plaintiff. Defendants appeal. , The facts of the case are found in the opinion.

The defendant w;as indicted, in connection with one William Collins, for the crime of uttering as true, a forged promissory note for the payment of money. The defendant Morris moved to quash and set aside the indictment, because there are no minutes of the evidence taken before the grand jury, and returned with indictment showing that he had any connection witb tbe offense.

<p> Appeal from Des Moi/nes District Oowrt. </p> <p>The plaintiff brings this action to quiet title in him to tbe north-east quarter of the north-east quarter of section 86, in township 71 north, of range three west, containing forty acres. The petition states that the plaintiff purchased the land from Margaretta Fleischman, widow of Frederick Fleischman, deceased, and that the widow was the owner in fee of the land by virtue of a bequest thereof to her in the last will and testament of her late husband. Copies of the will and conveyance are annexed to the petition.</p> <p>The court sustained a demurrer to the petition, and the plaintiff refusing to amend, judgment was rendered for the defendants. Plaintiff appeals.</p>

Action in chancery. Tbe petition shows that, in 1863, the supervisors of the county established a road which was located, a part of the way,.over defendant’s land. -The defendant filed his claim for damages, and was allowed $225, which (together with costs to the amount of $229.75, as shown by the evidence) was paid by plaintiff.

<p>Administrator: appointment op. Under section 2304 of the Revision the county court had no jurisdiction to grant administration upon the estate of a non-resident decedent unless he had property in the county to be administered on. The fact that some of the property of the estate was brought into the county for a temporary purpose after the death of the intestate would not confer such jurisdiction.</p>

Action upon an agreement made February 2,1872, between A. W. White and Perry Boggs, and signed by both, whereby White agreed to pay Boggs $100 ten days after date, but which sum was subject to be increased or diminished as the result of another settlement to be made between the parties should show the one to owe the other. Fifteen dollars was paid and credited on it the same day.

These two actions arise out of the same facts and were submitted on the same abstract and arguments. The plaintiffs filed their several petitions against the defendants as the board of county canvassers of the election returns of 1871.

Action at law, wherein an equitable answer and cross-bill were filed. A decree was rendered for defendant; plaintiff appeals. Tbe facts necessary to an understanding of the points ruled are set out in the opinion.

The plaintiff filed in the Jasper district court a petition for injunction, as follows: I. Tour petitioner respectfully represents and makes known to the court, that they are a corporation duly organized and existing under and by virtue of the laws of Iowa, and engaged in building a railroad in a northerly and southerly direction, through a portion of the county of Jasper, in the State of Iowa, and have been engaged with a large force in grading and bridging on the line of…

Action upon a promissory note for $150 executed by defendant to J. L. Oory and W. Gr. Stone, and by them indorsed without recourse. The defendant answered under oath, denying that he signed the note sued on; denying that plaintiff is a Iona fide holder thereof; alleging that the same was obtained by fraud without any consideration, and that plaintiff paid therefor only the sum of $80. Trial by the-court. Judgment for plaintiff. Defendant appeals.

Action to recover alimony, brought March 20, 1871. The plaintiff alleges, that she and the defendant were duly married on the 28th day of May, 1867, in the State of New York; that she then had property worth $138, which defendant converted to his own use; that they at once removed to the State of Wisconsin, where they lived together till May, 1869 ; that she then, at the defendant’s request, returned to her friends in New York, where she has ever since remained; that as the…

This action is brought upon a bond, of which the following is a copy: “ Know all men by these presents, that we, Durin Durall as principal, and Hardin Searcy as surety, are held and firmly bound unto D. E. Budd in the sum of $400, to the payment of which well and truly to he made and done, we bind ourselves by these presents.

Action m equity to recover alimony. The petition alleges, that in December, 1871, the parties, who, before, had been married, were divorced in an action brought by plaintiff in the Pottawattamie district court. Desertion was the ground upon which the divorce was granted, upon default by defendant, and the custody of the only child of the parties was given to plaintiff.

Action in circuit court upon an appeal of plaintiff from an award of commissioners assessing his damages at $250, for the taking of certain of his property by defendant for right of way. Jury trial. Judgment for plaintiff for $287. Plaintiff appeals. The necessary facts are disclosed in the opinion.

This action is brought to recover double the value of four hogs worth seven dollars each, and two brood sows worth twenty dollars each, alleged to have been killed on the defendant’s railroad.

Action in equity on an agreement to procure certain lands to be conveyed to tbe plaintiff. Tbe facts are stated in tbe opinion.

Action at law to recover certain lands in Cass county. There was a trial to the court without a jury and judgment for plaintiff; defendant appeals. The facts of the case involved in the points ruled sufficiently appear in the opinion.

The defendant was indicted, tried and found guilty of the crime of grand larceny — horse-steáling. His motion for a new trial was overruled and he was duly sentenced. The further necessary facts relating to the points ruled are stated in the opinion. The defendant appeals.

The plaintiff Calvin B. Kitteridge filed fiis petition in the district court, alleging that he is the owner in fee of the undivided one-half of certain lands therein described; that the defendant, Chapman, is the owner in fee of the other undivided one-half thereof, and praying that partition be made, etc. The defendant answered denying plaintiff’s title to any portion of the premises, and alleging that he, the defendant, is the owner in fee of the whole of the land.

Action at law. The petition declares upon a lease and two promissory notes given for rent to accrue thereunder.

The plaintiff filed in the district court of Scott county a petition for a writ of certiorari commanding defendants to certify to said court a transcript of the records and proceedings in reference to the establishment of a certain road.

This is a suit- in equity brought by the plaintiffs, who are the owners of lots bordering on Front street, in the city of Burlington, to enjoin the said city and its officers from passing a certain ordinance, and making a lease thereunder of a part of the said street formed by accretions, to the Toledo, Peoria & Warsaw Railway Company. Upon the filing of the petition a temporary injunction was allowed. No questions arise upon the pleadings.

Action in chancery to set aside a deed made by Mary Ann Flinn and her husband John Flinn to their daughter Mary Ann Conor, for a lot in the town of He Witt, and subject the same to the payment of a judgment recorded by plaintiff, in the circuit court of Clinton county, on the ground that the conveyance was fraudulent, having been made to hinder and delay creditors. The parties just named are made defendants to the action.

In October, 1868, J. W. Jones recovered a judgment against plaintiff and ber husband for $2,492.20, and costs, and a decree of foreclosure of a mortgage upon certain real estate, the title to which was in plaintiff. Soon thereafter there was paid to Seevers & Outts, attorneys of Jones, on the judgment, $1,200, which was not credited on the judgment.

This is an action to recover for injuries to the plaintiff resulting from a collision of a train and hand-car on the defendant’s railroad, February 7, 1870. The issues made by the pleadings are, as to defendant’s negligence, the plaintiff’s care and as to the settlement of the claim, A trial by jury in June, 1872, resulted in a verdict and judgment for plaintiff for $4,916.66. The further facts are set forth in the opinion. The defendant appeals.

<p> Appeals from Johnson District Court. </p> <p>Action in chancery to set aside and cancel a tax deed executed to defendant for lands, the title to which is claimed by plaintiff. There was a decree granting the relief prayed for in plaintiff’s petition. Defendant appeals. The facts of the case, so far as they are necessary to an understanding of' the points ruled, are found in the opinion.</p>

<p> Petition for Writ of Ma/ndamus. </p>

At the December term, 1871, of the district court of Jasper county, M. A. Briggs procured a decree of divorce from her husband George Briggs, and an award of $15,000 alimony, payable in monthly installments of $300. On the 25th of January 1872, plaintiff filed a petition for a new trial on the ground of newly-discovered evidence and the perjury of the plaintiff in the former suit, and prayed an injunction restraining the collection of the sum awarded her as alimony.

Action upon two promissory notes, of which the following are copies, to wit: “$350.00. Eor value received in policy No. 4,762, issued by the Iowa Central Insurance Company, I promise to pay the said company $350.00, in such portions and at such times as the directors of said company may agreeably to the charter and by-laws require, not exceeding seven per cent per year for the time insured. Dated Marengo, this 20th day of February, 1866. “ J. C. Beem.” “ Deposit note, $3.50.

Action to recover double the value of a colt killed by defendant’s train of cars. The plaintiff alleged the killing, the value, the absence of fences, the right to fence, and that he had served notice and affidavit of said loss on defendant, who failed for more than thirty days to pay the value.

Action for the recovery of damages for a refusal to complete a purchase of real estate. Trial by the court, judgment for defendant. Plaintiff appeals. The necessary facts are stated in the opinion.

That the horse was unsound, and has so continued to remain, by reason whereof plaintiff was unable to stand him for mares during the season. That he was unable, except once in a great while, to perform his duty as a stable horse. The defendant moved the court to require plaintiff to state specifically, “ the precise nature of the unsoundness of the stable horse, as alleged in the petition.” This motion was overruled. Defendant appeals.

Action eor partition. Mary A. Rodman, one of the defendants, is the widow, and the plaintiff and the other defendants are the heirs at law of B. R. Hull, deceased, who died intestate in the year 1859, seized of certain real estate in Jackson county, consisting of a lot of one and one-quarter acres, on which was situated his dwelling-house; and also of a farm of 120 acres situated about a mile therefrom, and a timber lot about the same distance in another direction.

This is an action brought by James Grant and others, citizens and tax payers of the city of Davenport, against the said city and others, to restrain the said city from carrying into effect a certain ordinance passed by the city December 4,1872, on the ground that the said ordinance is unconstitutional, because it creates a larger debt than the constitution allows, and violates the obligation' of the contract made at the time its compromise bonds were issued, and exempts the…

The petition alleges that on the 4th day of May, 1871, the plaintiff's recovered judgment against the Iowa Yalley Construction Company, an association of individuals doing business in Marshall county. Held: whether by the company or the individual members thereof. The court sustained the demurrer and rendered judgment against defendants for the amount of plaintiff's claim. Defendants appeal.

Action to recover $80 as attorney’s fees for legal services rendered at the instance of the president of the defendant. There was a trial to the court, and the following are the findings of fact and law : 1. There was a contest in the sub-districts of Fremont township as to the proper location of a school-house. The township board of directors made an order fixing the location.

This action was commenced by the plaintiff in behalf of himself and numerous other persons, not named, to restrain, by injunction, the collection of a tax voted in aid of a railroad, by the voters of Newton township in Jasper county, Iowa. An order allowing the writ was made by Hon. John Mitchell, judge of the first circuit, of the fifth judicial district, and the writ was issued accordingly and served on the defendants.

Ajypeal from Monroe Oirewit Cov/rt. On the 5th day of September, 1872, the plaintiffs filed their petition seeking to recover upon a judgment rendered in the Monroe circuit court, on the 8th day of February, 1871, against Henry Saunders and William E. Collins, as principals, and B. E. Saunders, as surety, for the sum of $1,073.38, and costs.

Action upon a promissory note. Judgment for plaintiff for $1,456.58. Defendant appeals. The facts are stated in the opinion.

<p>Practice: on appeal : statute of limitation!. Where judgment of the court below is rendered on a claim which, on its face, appears to be barred by the statute of limitations, the supreme court will, on appeal, and where the testimony introduced in the court below is not embraced in the record, presume that facts were presented showing that the claim was not in fact barred, and affirm the judgment.</p>

.Appeal from, Muscatme Circuit Court. Action at law by the plaintiffs, who are assignees of á' eeri tain judgment, to recover of the defendants, who ái’é their assignors, the difference between the amount which appeared to be due on the judgment and the amount actually due thereon, which difference, $1,219.60, was the result of a mistake. Trial to the court; judgment for defendants. The plaintiffs appeal. The facts appear in the opinion.

This is a suit in equity commenced on the 31st day of January, 1871, against Mary M. Haire and John Haire as mortgagors, John H. Taafe as indorsor of certain notes, W. H. Johnson, assignee in bankruptcy of Haire & Co., and numerous other persons as creditors and junior lien holders, etc. The pleadings were several times amended, once, after the evidence was closed, and under the issues made, the ultimate facts as stated in the opinion were established.

Action to recover the value of a yearling colt, killed by the defendant’s train at a highway crossing. Trial to a jury; verdict for plaintiff for $50. The defendant appeals.

Action upon a promissory note for $10,000, executed by William Smith, C. Rodenbach, H. P. Hill, J. H. Strong, F. S. Graham, N. R. Nichols, E. Goughnor and H. H. Moffit, to J. R. Van Meter, who indorsed the note in blank. The petition also asks the foreclosure of a mortgage executed by F. S. Graham and Isabel, his wife, for the security of the same.

Action at law by an administrator to recover damages for the death of the intestate caused by the negligent act of the servants of defendant. There was a judgment upon a verdict for $750 in favor of plaintiff, from which he now appeals. The facts involved in the points ruled appear in the opinion.

This action was instituted by Edward Laughlin, in Ms lifetime, to recover damages for injuries sustained by the alleged negligence of defendant. After his decease, the administratrix of his estate was substituted as plaintiff, and the cause continued in her name. The decease was in the employ of defendant as brakeman and baggage-master. A part of his duty was to assist in coupling the cars and in making up the trains.

Action for the recovery of real property, the east one-third of lot 150 in Manchester. There was a trial to the court and judgment for defendants. The plaintiff appeals. The facts are stated in the opinion.

The plaintiff brings this action for partition of forty acres of land described in the petition, alleging that he and the defendant are owners in common thereof. The answer of defendant denies plaintiff’s alleged title and sets up an equitable defense, upon which the cause was tried by the court, and judgment rendered for plaintiff for partition, as prayed. Defendant appeals. For the further facts see the opinion.

Action in chancery for the foreclosure of a mortgage given to secure a promissory note dated September 22, 1858, due one day after date, and payable to the order of Samuel Hebered, with interest at ten per cent per annum.

At the May term, 1871, of the Lee district court, the defendant was indicted for obstructing “ a certain ancient and public highway, known as “ Speak’s Lane.” At the same term he was tried and found guilty. From the judgment against him he appeals. The necessary facts are stated in the opinion.

Surr in equity by the plaintiffs, who claimed to be the owners, each of one' undivided fourth part of the north-west quarter of section nineteen, township seventy-three, range thirty, to quiet their title thereto, to correct a mistake in a suit to set aside a conveyance of part thereof by David Mcllravy to M. S. Robinson, and by him to H. C. Keller, and to enjoin the sale or negotiation of a note and mortgage given by defendant Keller to Robinson, in part for the purchase…

Action of replevin, jury trial, verdict for plaintiff, which, on motion of the defendant, was set aside by the court and a new trial ordered. From this order plaintiff appeals. The further facts of the case appear in the opinion.

<p> Appeal from jBlackhawlc Ovrcuit Cowrt. </p> <p>Action at law to recover the value of a mare which plaintiff alleges was, while his property, taken and converted to defendant’s use; damages in tbe sum of $100 are also claimed by plaintiff which resulted from the taking and converting of tbe property by defendant. There was a trial resulting in a verdict and judgment for plaintiff. Defendant appeals.</p>

On the 27th of July, 1871, an original notice of an action of plaintiff against defendants was issued by E. Shaw, a justice of the peace of Marion county, returnable August 4, 1871, at 10 o’clock, A. M. This notice was served on W. A. Brownell, in Lake Prairie township, Marion county, on the day that it was issued. On the day set for trial plaintiff filed a petition against Brownell Brothers. The defendants not appearing, judgment was rendered against them for $40 and costs.

App/e'al from, Story Ci/rcuit Court. Action for false imprisonment, jury trial, general verdict for defendant, and a special finding that the defendant did not act with malice toward plaintiff. Judgment for the defendant; plaintiff appeals. The necessary facts are stated in the opinion.

On the 4th day of January, 1872, the plaintiff presented to the board of supervisors of Decatur county, his petition representing that during the years 1869, 1870 and-1871 he was auditor of said county. That during said time he was obliged to have assistance, and that he procured the services of C. B. Jordon, whom he paid $320, and of J. P. Finley, whom he paid'$80.

This action is brought hy the plaintiff, who claims to be the owner of the north-west one-quarter of section 15, township 89, range 17, west, for the purpose of determining the question of title thereto, as against the defendant, who, also, claims title. It is based on Revision, section 3601, neither party being in the actual possession of the land. The cause was tried, by the second method, to the court, who found for the plaintiff and rendered judgment accordingly.

The plaintiffs, two of whom being minors, this action is brought by their respective guardians, in connection with John Kelly, an adult, to redeem certain lands, owned by them in common, from a sale thereof for taxes, and to recover damages for waste committed by the tax purchaser and his grantees. The district court rendered a decree permitting the guardians to redeem their interest, but denied their claim for damages. Plaintiffs appeal.

Action for the recovery of $994.65, with interest from December 22, 1870, upon open account for the amount of a bill of window glass. The defendants admit the purchase of the glass on the terms stated, but deny that they owe any thing thereon. They allege that about June 9, 1870, they ordered from plaintiff, at Pittsburg, merchantable glass, well packed, and required plaintiff to send the same immediately by boat.

Action upon a promissory note as follows: “ $150. Con-over, December 2,1868. “ One year after date I promise to pay to the order of John Sexton $150, at Conover, with interest at ten per cent per annum, value received.

The petition states, in substance, that the plaintiffs and defendant are the heirs at law of Bennett Hutchinson, who died March 23, 1868, seized of 456 acres of land in Dallas county, Iowa; that in May, 1868, the defendant with O. D. Smalley were appointed administrators of, and administered upon, the estate of the deceased; that on the 31st day of August, 1868, the defendant commenced an action for partition of said real property, in the district court of Dallas county,…

The plaintiffs filed in the Henry district court a petition stating in substance tbat Evans Jenkins died intestate in Henry county, December 31, 1859, and tbat plaintiffs are his legal heirs. Tbat J. M. Shields was appointed administrator of tbe estate, and tbat be executed an administrator’s bond with tbe defendants Morehead and Stansbury as sureties.

The plaintiff by Ms petition claims to recover $88 for balance of rent due upon a written lease ; $50 for hay and stabling furnished defendant’s horse ; and $32.12 for balance due on sixty-seven fence posts. A writ of attachment was asked for and issued.

Plaintiff brought this action at law for the May term, 1865, of the district court of Dubuque county, to recover of Edward Walsh, now deceased, lot No. 119 in the city of Dubuque.

This action was commenced before a justice of the peace of Deleware county upon a claim for damage done by animals of defendant trespassing upon plaintiff’s land, and upon an account of different items. Defendant denied the matter set out in plaintiff’s claim and account, and filed a cross-demand upon an account for services, cash, etc. Upon a trial to a jury a verdict and judgment for $25 and costs was rendered for plaintiff.

Action of right for the possession of lot 6 in the original town of Council Bluffs. The defendant claims .that he owns the said lot in fee simple. The respective titles of the parties are derived as follows: On the 2d of June, 1849, Stephen T. Carey duly executed his will, bequeathing all his estate, both real and pei’sonal, to his wife Martha E. Carey. Afterward he became the owner of the lot in controversy.

Action to recover for injuries caused by falling in the night time into a shallow well in the street, near the corner of Elm and Clay streets in the city of Waverly, left unguarded, as averred, by reason of the negligence of the defendant. The defendant denies its negligence, avers the plaintiff’s negligence and want of notice to it, of the alleged defect. Trial to a jury; verdict and judgment for plaintiff for $347.76. The defendant appeals.

Action to foreclose a mortgage given by Westlake and wife to Pangborn, to secure tbe payment of the following note: “ $1,070. Maquoketa, March 13, 1871. “ One year after date I promise to pay to J. Pangborn, ten hundred and seventy dollars, with interest at the rate of ten per cent per annum, value received.

The petition of plaintiff states that on the léth day of February, 1871, he entered into an oral contract with the defendant to deliver to him at Bedford, in Taylor county, Iowa, a lot of live fat hogs, of not less than twenty nor more than forty-five head, to be marketable hogs, weighing not less than one hundred and ninety pounds gross weight each, and to be delivered at any time from the 20th day of May to the 10th day of June, at the option of the defendant, and to be…

Apjpeal from Winneshiek Dist/riot Court. Action upon two drafts, one dated April 5, 1871; the other, May 30, 1871, drawn by Chase & Co., of Louisville, Ky., and accepted by defendant at Decorah, Iowa; both were indorsed to plaintiff by the drawers, to whose order they were payable.

The petition claims of the defendants, R. L. B. Clark and Annie R. Clark, the ownership in fee and the present possession of the north-west quarter of the north-west quarter and the south-west quarter -of the north-east quarter of section nineteen, township seventy-two, range thirty-four; and as to the first forty alleges that defendants claim the same by deed from plaintiff, but that he never sold the same to defendants, and if it is described in any deed to defendants it…

<p>Husband and wife: Liability for wife’s torts. The case of McElfresh v. Kvrlcendall, ante, 224, holding that the husband is liable for the torts of the wife, and may be sued jointly with her for slanderous words spoken by her, followed.</p>

Action to recover damages for an assanlt and battery upon both of the plaintiffs, who are husband and wife. The defendants, six in number, separately set up cross-claims against plaintiffs for damages sustained by each on account of an assault and battery committed by plaintiffs upon them. Issue was taken upon the petition and cross-claims by the denial of the respective parties.

The plaintiff claims of defendant $336.75, with interest at ten per cent from April 3, 1869, upon a promissory note executed in settlement for corn agreed to be delivered to plaintiff by defendant. Defendant denies that he contracted with plaintiff for the delivery of corn, and denies the execution of the note sued on.

On the 12th day of July, 1871, a transcript was filed in the office of the clerk of the Johnson county circuit court, from the docket of a justice of the peace, in which judgment was rendered on tbe 22d day of July, 1868, in favor of plaintiff against the defendant, Benjamin Bitter, for $90. On tbe back of tbe transcript is tbe following indorsement: “ Filed October 18, 1868.

This is an appeal from an assessment of damages at $500 by a sheriff’s jury in an ad quod damnum case for a railroad right of way. The plaintiff here, the owner of the land, appealed from the finding of the sheriff’s jury. On a trial to a jury in the circuit court, the plaintiff recovered a verdict and judgment for $1,650. The defendant appeals to this court.

The plaintiff sues to foreclose two mortgages,' one of date October 28, 1857, made by Richard B. Hill and wife to Peter Wainright, on property in the city of Davenport, given to indemnify said Wainright against the payment of a certain promissory note for $10,000, made by said Richard B. Hill to Alpheus Hardy, Horatio Harris and Hugh Montgomery, trustees under the will of Joshua Sears, deceased, payable in three years from date, with semi-annual interest, to secure which…

<p> Appeal from Jones District Qowrt. </p> <p>Action in chancery to restrain defendant, who is a supervisor of highways, from cutting down and removing certain trees growing in a road upon which plaintiff’s farm and dwelling are situated. The cause was sent to a referee, upon whose report of the evidence and findings of facts and law a decree was rendered, dismissing plaintiff’s petition. He now appeals to this court. The facts of the ease are found in the opinion.</p>

Appeals from Washington District Court. Action for assault and battery. The defendant pleaded a tender of $10. The court, in substance, charged — 1. “ That the jury were at liberty to give punitive damages. 2. That if a tender of $10 was made by defendant to plaintiff, and plaintiff refused without specifying how much he required, he might, nevertheless, recover more if the evidence showed him entitled to more.” Yerdict and judgment for plaintiff for $400. Defendant appeals.

Action by plaintiff as the assignee of two promissory notes, dated April 25, 1868, payable to A. S. Blakeslee or bearer, on the 1st day of May, 1870 and 1871, respectively, and to foreclose a mortgage executed to secure the same.

<p> Appeal from CTA/nton Circuit Cou/rt. </p>

This action was commenced August 20, 1867, in the Bremer district court, and was afterward, by change of venue, taken to the Blackhawk district court. The suit is based on a contract made by the defendant Pitcher, with the plaintiff, whereby Pitcher agreed to build a bridge across Cedar' river, at Nashau. The other defendants, Shepherd and others, became Pitcher’s sureties for the performance of his contract.

<p> Appeal from Dubuque District Qou/rt. </p> <p>The facts necessary to an understanding of the question involved appear in the opinion.</p>

<p>Practice: reylew of order setting aside default. The trial court has a large discretion in passing on motions to set aside defaults, and its action thereon will not be disturbed except in a clear case of abuse.</p>

Apjoeal.from Chickasaw District Cowrt. Action in chancery to set aside certain tax deeds to lands described in plaintiff’s petition, on the ground of the irregularity and insufficiency of the proceedings upon which they are based, and to quiet plaintiff’s title to the property involved in the action. The district court denied the relief sought, and plaintiff appeals. The facts involved in the points ruled are stated in the opinion.

JDelcma/re Circuit Cou/rt. Action in the circuit court to establish a claim upon a note of $300, against the estate of decedent. The claim was filed about eight and one-half months after publication of notice of the appointment of defendant as administratrix, and notice of the claim was served on the administratrix ten days before the lapse of the period of eighteen months, from the giving of administratrix’s notice.

The plaintiffs petition sets forth in substance, that plaintiff is the widow of M. C. Davis, and that he and plaintiff executed a mortgage upon certain land, in petition described, which said mortgage the defendant foreclosed in the district court at the May term, 1872.

Suit in equity to enjoin the defendant, who is a road supervisor, from tearing down plaintiff’s fence and destroying ornamental trees, currant bushes, etc. A temporary injunction was issued. The cause was tried to the court, by the first method of trying equitable issues, and judgment was rendered for the plaintiff and the injunction made perpetual. The defendant appeals.

This suit was commenced before a justice of the peace. The plaintiff, on the trial there, offered certain parol evidence, which was excluded by the justice, on the ground that it was within the statute of frauds; and he rendered judgment for defendant. The plaintiff prosecuted a writ of error to the circuit court, where the ruling of the justice was affirmed. He now appeals to this court.

This action is brought by the plaintiff at law to recover of the defendant the possession of a fraction of a certain described lot in the town of Decorah, Iowa, claiming the same under a tax deed made by the treasurer of the county.

This is an action at law for damages for an alleged refusal of defendant to receive a lot of hogs according to a written contract between tbe parties. There was a jury trial, and a verdict and judgment for plaintiff. Defendant appeals.

Action to recover the value of property belonging to plaintiffs,which, they allege, was seized 'and sold in an action by attachment, brought in the city of Chicago, by defendants herein against them, in which no personal service of notice of process was made upon them.

<p> Appeal from Wvnneshiék District Gov/rt. </p> <p>On the 21st of July, 1868, the plaintiffs filed in the Winneshiek district court a petition, stating in substance that the defendant, the N. W. Ins. Co. of Decorah, Iowa, was duly organized and incorporated under the laws of Iowa, and did, on the 19th day of September, 1867, at the city of Chicago, Illinois, insure the property of plaintiffs against loss or damage by fire, to the amount of $5,000 for the term of one year. That plaintiff’s property was destroyed by fire to the amount of over $5,000, of which due proof was made and the same has not been paid, and that the company is insolvent.</p> <p>That at the time of issuing said policy and during the time said company carried the risk, it was the owner of mortgages on real estate to the amount of over $50,000, among which were two executed by the defendant Combs' upon property described, one for $4,000 and the other for $14,000.</p> <p>That at the time the loss occurred Combs was a stockholder and president of the company, and that after the loss occurred with intent to defraud plaintiffs and other creditors, he and other officers of said company secreted said mortgages and other property of the company to such an extent that it is wholly unable to pay plaintiffs’ claim. Plaintiffs ask a decree against the company for $5,000, and that Combs and the other defendants answer as to the disposition made of said mortgages and the other property of the company.</p> <p>Afterward plaintiffs filed an amendment asking that defendants make a full disclosure of the condition of the company up to the time that it went into the hands of the receiver, and that a decreé be entered against each of said defendants for the amount of any money, assets or property that may be found in their hands, that they be required to surrender to the receiver all notes, mortgages or other property of said company in their hands, and that plaintiffs have general relief.</p> <p>At the March term, 1871, M. Y. Burdick, the receiver, was on his own motion substituted as plaintiff, and filed his petition for the use of Burnham & Yan Shaick, and the other creditors, and in addition to the averments of the petition and amended petition of Burnham & Yan Shaick, stating in substance that he was appointed receiver of said company by the district court, in June, 1868 ; that its indebtedness amounts to $20,000; that prior to the execution of the mortgages by the defendant Combs, he executed and delivered to said insurance company his guarantee notes to the amount of $16,666.66, which formed a part of the capital stock of said company, and that in consideration of said mortgages these guarantee notes were surrendered to him, and were not replaced when the mortgages were taken away. The receiver admits the claim of Burnham & Yan Shaick, and states that the available assets of the insurance company, at the time he was appointed, and which have come into his hands, do not exceed $1,000, and that he knows of no other assets except those taken away by defendant Combs and others, as alleged in the petition of Burnham & Yan Shaick.</p> <p>The receiver asks a decree against the defendant Combs as prayed for in the petition and amended petition, and that Combs may pay to him as receiver for the benefit of the creditors, $20,000, and for general relief.</p> <p>None of the defendants answered but Combs. In this answer he denies generally the allegations in the petition and amended petition of Burnham & Yan Shaick, so far as they charge him with secreting or permitting others to secrete any mortgage, note or property of said company. He denies that the debts of the company amount to $20,000, and that he ever executed his notes to the company for $16,666.66, as guarantee notes, and that he has taken and carried away any property of the company. He avers that the available assets in the receiver’s hands are much more than $1,000; that the amount of premium notes in his hands is $30,000, and the amount of other securities $15,000.</p> <p>Respecting the mortgages for $4,000 and for $14,000, he alleges that there was no consideration therefor, and that they were never stamped nor delivered. That there were some certificates of stock designed to be delivered which were never stamped nor delivered. That the said mortgages were to be delivered and the stock received upon condition that sufficient mortgages should be obtained to make up the amount of $150,000. So as to make statements in other States, and the mortgages were to be paid in N. W. Ins. Co. stock or money, at his option.</p> <p>As to a certain $1,200 note executed by the company to him, defendant states that it has not been paid and is due him, the consideration being $400, by him paid, and the balance due him for services rendered the company, and that he held a deed to 240 acres of land, and a mortgage on 120 acres to secure said note. Many other allegations and answers thereto occur in the pleadings, which are not material to an understanding of the points decided below or here.</p> <p>The court adjudged that upon payment by the receiver to Combs of $400 and interest thereon, Combs deliver to the receiver the lands held by him as security for said $1,200 note, and rendered judgment in faver of Combs uj>on the claim for the $18,000 in the mortgage mentioned.</p> <p>Plaintiffs appeal.</p>

Action to restrain the collection of a tax of five per cent voted in - aid of the Davenport & St. Paul Railway Co. The petition states, in substance, that plaintiff is a tax payer of Wertfield Township, Fayette county, and that a petition was presented to the Township trustees, of said township, asking that the question of aiding the construction of the Davenport & St. Paul Railway be submitted to the legal voters of said township.

The plaintiffs claim of defendant $100 and interest on a promissory note dated June 4, 1866, due thirty-one months after date. The defendant filed an answer and cross-claim.

Action of replevin for horses, a wagon and a set of double harness. The defendant states in his answer that at and before the commencement of the suit he was and still is the proprietor and keeper of a hotel in Marion in said county; that the plaintiff boarded with defendant, and defendant kept, stabled and fed the horses described in said petition for the space of about eight weeks.

On the 30th day of May, 1863, one Lewis Bacher executed to plaintiff his promissory note for $200, payable on or before the 1st day of June, 1869, in consideration whereof, the plaintiff executed to said Bacher his title bond, agreeing upon the payment of said note and all taxes accrued on the land, to convey, with sufficient covenants of warranty, the W. J of section 33, township 92, range 13. Lewis Bacher and wife assigned this bond to the defendant W. H. Mores.

The plaintiff filed Ms petition for an injunction restraining R. S. McManus, as plaintiff in justices’ court, from proceeding to collect a certain judgment, and enjoining Patrick Moran as constable from making any levy or sale under an execution issued for tbe enforcement of tbe judgment.

Action of forcible entry and detain^. The plaintiffs allege in tbeir petition that on the 4th day of October, 1871, and for a long time prior thereto, they were in possession of the land described in their petition, and that the defendant by force, fraud, intimidation and stealth, entered upon such real estate and took possession of it, and ousted plaintiffs of their actual possession.

On tbe 25th of July, 1860, B. F. Allen commenced an action against T. R. Rogers, to recover rent for a portion of lot two, block 0, Griffith’s first addition to East Eort Des Moines. On the 20th of February, 1873, Rogers filed his answer denying Allen’s ownership of the property, and by way of cross-bill in equity making Warren Hussey a party, as a pur_ chaser from Allen, and praying that the title to the property be quieted in him.

Suit in equity to compel the defendant, who is sheriff, to make a deed of certain real estate sold by him under execution, the title to which the plaintiff claims by reason of being a judgment creditor of the execution defendant who had redeemed from the sale. One Ellis B. Bailey, by petition, intervened and denied that plaintiff was a judgment creditor, and claimed title in himself.

Suit in equity by the plaintiff, who is an assignee of a judgment against Lewis Turner, to set aside a conveyance of a house and lot in Vinton, to Elizabeth Turner, as fraudulent; and to subject the same to the payment of his judgment. The cause was tried to a referee, who found for the defendants. In the district court, the plaintiff’s exceptions were overruled and the report of the referee affirmed.

This is an action to quiet the title to certain real estate which the plaintiff claims under the last will and testament of his mother, Ellen Fitzpatrick, deceased. The district court sustained a demurrer to the petition, and the plaintiff appeals. The further facts appear in the opinion.

This is an action in equity to foreclose a bond, for title, and subject the real estate described therein to sale for the satisfaction of the purchase price alleged to be still unpaid. The plaintiff is the assignee of Lewis Conly, the vendor. The land is the south-east quarter of section eighteen, and six and two-third acres in section seventeen, township ninety-seven, range seventeen.

Appeal from Keokuk District Court practice on appeal. The facts necessary to an understanding of the case are stated in the opinion.

The defendant was arrested and arraigned on the following indictment: “State of Iowa v. Joseph Chartrand. “ The grand jury of the county of Woodbury, in the name and by the authority of the State of Iowa, accuse Joseph Chartrand of the crime of keeping a nuisance, committed as follows: The said Joseph Chartrand, on or about the 1st day of June, in the year of our Lord one thousand eight hundred and seventy-one, in the county aforesaid, and at divers other times, did…

Action commenced before a justice of the peace where, upon a trial on the merits, a judgment was rendered for plaintiff; defendant appealed to the circuit court. A trial upon the merits in that court, resulting in another judgment against defendant; he appeals to this court.

Or the 7th day of February, 1873, D. F. Miller, Sr., filed in the circuit court of Lee county, his affidavit stating the death of B. F. Williams, late of said county, on the lBt day of January, 1873, and presented and filed in court a writing as the last will and testament of said deceased. The will was opened, read and notice given of the time when the same would he proved.

Action in chancery to set aside a certain deed for fifteen acres of land, made by Joseph Patterson to defendant, Rebecca Kynett, on the ground that it was fraudulently made for the purpose of defeating the creditors of Patterson and to quiet the title of plaintiff in the same property, acquired through a sheriff’s deed and sale upon a judgment against Patterson. Other facts of the case appear in the opinion.

Action upon an account originally brought before a justice of the peace. The defendant denied the account and any indebtedness thereon. On the trial before the justice, the plaintiff recovered a judgment. The defendant appealed to the circuit court, where another trial was had with a like result. The defendant again appeals.

14; that certain other parties named have recovered judgments against said Neville and James Cullen as partners, prior to plaintiffs’ judgment; that about the 20th day of August, said Neville died leaving the defendants, his widow and heirs at law, surviving him. It is further alleged that said NeviUe was the owner of lot number 155, in the city of Ottumwa, that this was the only property owned by him subject to execution at the time of his decease.

Action in chancery to subject certain real estate, the title of which is in the minor defendants, Thomas A. and Louisa Cheney, to a debt of their co-defendant, R. H. Cheney. Upon the hearing plaintiff’s appeal was dismissed. He appeals to this court. The facts of the case appear in the opinion.

Appeal from Lucas District Court Action in equity for specific performance. Judgment for defendant. Plaintiff appeals. The facts necessary to an understanding of the case aTe stated in the opinion.