Volume 4 — Iowa Reports

This was originally a bill in chancery, to enforce the specific performance of the following agreement: “ Conditions of agreement between John McKeegan, on the one part, and Michael Eoley on the other, May 5th, 1853., I, John McKeegan, have this day, agreed and sold 200 acres of land, the same more or less, (here follows a reference to the land,) for which I am to receive $880; $50 of which I am now to receive, and the same is to be forfeited by Michael Eoley, if he does not…

The Fairfield and Mount Pleasant Plant Road Company, was organized as a corporation, in April, 1851. J. C. VYeare obtained judgment against that company, in the District Court, in Jefferson county, at the October term, 1853. An execution was issued against the company, and in February, 1854, the sheriff returned that no corporate property could be found, in accordance with the act of 22d February, 1847, § 19, (Stat. 1847,103).

Appealfrom the Dubuque District Court. This was an action of forcible entry and detainer, brought by Langwortby, to recover of defendants the possession of a lot in the city of Dubuque, designated on… Held: that Kincaid had no such possession as would enable him to maintain forcible entry and detainer.

On tbe 17th. of January, 1854, the defendant Eoley, as sheriff of Jackson county, attached certain goods, wares, and merchandise, by virtue of several writs of attachment, in favor of his co-defendants, and against one Boyd. Judgments were afterwards rendered in favor of the attaching creditors, and the property so attached, sold under execution to satisfy said debts.

■ The plaintiff sued on two promissory notes of five hundred dollars each, and one of nine hundred and forty two dollars, payable to Edward St. Michael, or order, and upon an open account for merchandise sold to defendant, by St. Michael, all which demands are alleged to be duly assigned to Hunt, the plaintiff.

Petition to foreclose a mortgage. The plaintiff claims as assignee and holder of a note given by defendant, dated August 29th, 1853, payable eighteen months after date, to J. H. Merritt, or bearer, for five hundred dollars, with ten per cent. interest from date.

The- plaintiffs brought this action to recover damages, su&tained by the failure of defendant to furnish a quantify of corn, and perform other parts of a certain contract in writing, which is set out in the pleadings. Judgment was rendered in their favor.' Defendant appeals, and the material facts of the case will sufficiently appear from the opinion of the court.

The plaintiff, tbe daughter and. heir at law, of James G-. Held: that “ the granting of the license was a binding adjudication; that all facts necessary to give jurisdiction, as well as to warrant the license, existed; and that the record was conclusive evidence thereof.” This whole case maps out the law which governs cases like that under consideration, in a clear and luminous manner; and we see…

Suit on two negotiable promissory notes, for $250 each, dated February 5, 1852j and payable one in one year and tbe other in two years from date, given by defendant to one P. Byam, and assigned to plaintiff April 10, 1852.

This action was commenced to recover tbe amount of a promissory note. Trial and judgment for plaintiff, and defendant appeals. Tbe facts sufficiently appear in tbe opinion of tbe court.

The petition represents tbat on tbe 3d day of September, 1851, in tbe District Court in Marion county, tbe petitioner recovered a judgment against Anson Crandall, then living; and tbat on tbe 29tb November, 1851, a transcript of this judgment was filed in tbe office of tbe cleric of tbe District Court in Mabasba county; tbat after tbis, said Anson Crandall deceased; tbat at tbe time of tbe rendition of tbe above judgment, said Crandall owned certain real estate inMabaska…

<p>It is no part of the duty of a jury, nor have they any right, to determine from the pleadings, what allegations are admitted or denied.</p> <p>It is the province of the court alone, to examine the pleadings; and if any of the allegations-are to be taken as true, for want of the necessary denial, to so state to the jury.</p> <p>Where, in an action for the forcible detention of real estate, commenced and tried before a justice of the peace, and taken by appeal to the District Court, and in which action the defendant answered, “not guilty,” the jury in the District Court were instructed, that every material allegation in the petition, not specifically denied by the answer, should be taken as true; Held, That the instruction, as an abstract proposition, was correct; but that the effect of it, was to submit to the jury a question that should have been determined by the court.</p> <p>And where in such a case, the defendant asked the court to instruct the jury, “ that a plea of not guilty was a sufficient denial of the plaintiff’s petition, and was sufficient to put the plaintiff upon proof of every material allegation set up in his petition,” which instruction the court refused to give; Held, That under the circumstances of the case — the record showing there had been a trial before the justice of the peace, and the objection to the sufficiency of the answer being made for the first time in the District Court, after the testimony was submitted to the jury — the instruction should have been given.</p>

Suit on a promissory note for two thousand dollars, given by defendant to plaintiff’s intestate. Held: that the defendant’s rights were not waived by pleading over. In that case, the defendant moved to dismiss for insufficiency in the writ. The motion was overruled. The defendant then plead to the action ; the cause was tried, and judgment for the plaintiff. The defendant appealed.

In March, 1852, George Miller made Ms last will and testament in writing, in which, after maMng some small bequests to his children,… Held: viz: in trust for the whole church; that the said conveyance is the same referred to by said George Miller in his will; that the title of all church property is held by trustees, members of the church, appointed by the preaeher in charge of the circuit; and that provision is made in said conveyance, and by the rules and discipline of…

This is a petition for an injunction. Tbe injunction was allowed by a judge of tbe Supreme Court, and was returned to the District Court, when, on hearing, on bill, answer, and testimony, the bill was dismissed, and the injunction dissolved.

Lash brought his action against Butch, to recover' a certain town lot in Sigourney, in Keokuk county. By his petition he shows that he claims title under'a deed from the county judge of said county, of date March 24th, 1855.

The plaintiff sued for tbe price of sixty-six and a balf days’ work as a carpenter, at two dollars per day. Tbe defendant, by bis answer, admits tbe work and tbe number of clays, but denies tbat the work was worth two dollars a day.

ey to them all théir right, title, and interest, in certain lands in Polk county, Iowa, and aver, that Isaac Ash, the father of the complainant Eveline, and of the defendants, purchased two land warrants for the said Eveline, at the price of $220, which were intended by him, and were received by her, as an advancement; that the parties were at the time, to wit: the spring of 1849, living in the state of Indiana, and in consequence of receiving said land warrants, they…

Carter and Samuel E. May, as surviving partners of the firm of A. W- Carter k Co., on -two promissory notes executed in the name of the copartnership — A. W. Carter having deceased before the commencement of the suit. May was conceded to be a partner. John 0. Carter denied that he was a member of the firm. Judgment was rendered for the plaintiffs. Both parties appeal.

This action was commenced before a justice of tbe peace, to recover for tbe services of one Andrew Lynch, under a contract, and by defendant appealed to tbe District Court. In that court, be applied for a continuance on account of tbe absence of a witness, wbicb application reads as follows: “James 0.

This action was brought to recover for the rent and occupation of a mill under a lease.

This cause was heard and decided at the Jane term, 1856, and will be found fully reported in 2 Iowa, 315, to which the reader is 'referred for a statement of the facts of the case.

In Cbaneery. The son, Robert, claims of Henry, tbe father, a deed for a certain parcel of real estate, which, he alleges was given to him by his said father.

This was an action brought to recover damages for tbe defendant’s cattle breaking into the plaintiff’s close, and destroying his crops. On the trial, after the plaintiff bad closed bis evidence, and bad concluded bis opening argument, and tbe defendant also bad addressed tbe jury, tbe plaintiff moved for leave to introduce a witness, to prove tbat tbe land where tbe damage was done was that described in the petition, wbiob be claimed bad been omitted through an oversight.

Scire facias against bail. The defendant appeared, and for cause wby his recognizance should not be estreated, answered, denying the execution and acknowledgment of the recognizance, and averring that-the recognizance had never been executed, acknowledged and approved, as the law requires. The answer was not under oath.

This case was commenced before a justice of the peace, and by defendant appealed to the District Court.

The plaintiff brought an action of replevin against the defendant, to recover possession of certain hogs, taken up when running at large in the city of Pella, on the 13th June, 1856, contrary to -an ordinance of the city. The defendant was marshal of the town, and as such impounded the creatures.

The plaintiffs issued execution on a judgment in the Muscatine District Court in their favor, against Joseph Bennett, for $2,848.40; and the sheriff notified and summoned as garnishees, John A- Parvin, mayor, and D. P. Johnson, recorder, of the city of Muscatine.

In November, 1848, tbe defendant made to plaintiff big promissory note for tbe sum of ten thousand dollars, one-half to be paid in one year, and one-half in two years from date. He also executed a mortgage on several parcels of real estate,- situate in tbe county of Cheshire, state of New Hampshire, -to secure the-payment of said sums of money.

The complainants, as the residuary legatees of David Sleator, deceased, claim of the -respondent, the undivided half of lot 73 in the city of Dubuque. At the time of Sleator’s death, this lot was owned and occupied in common by him and respondent, the title thereto being a pre-emption right duly established and recognized by the commissioners appointed for that purpose, under the act of Congress of October 26, 1836, and an act amendatory thereto of July 2, 1837.

This was an action to recover damages for slanderous words spoken of and concerning tbe plaintiff by the defendants, in calling ber a wbore. The petition alleges no special damages to plaintiff from the speaking of the words. There was a demurrer to the petition, which was overruled by the court. The defendants then answered, denying the allegations of petition.

In Chancery. In September, 1848, the complainant conveyed to the respondent Hosiers, certain real estate in Marion county. On the 29th day of May, 1849, he, by deed of general -warranty, conveyed certain lands in the same county, to the respondent Zeelt.

Complaint before a justice of tbe peace against the defendant, for keeping intoxicating liquors, with intent to sell the same within the state. The defendant was found guilty and fined. He appealed- to the District Court, and filed an affidavit, under section 3358 of the Code.

In a suit before a justice of tbe peace, commenced by attachment, in which the plaintiff recovered judgment against Thomas Hunt, for $82.50, by default, John M, Mail was summoned as garnishee, on the affidavit of plaintiff, that the said Mad had in his hands $61.25, due to the defendant.

It appears that the city of Dubuque, proceeded to appropriate a part of the complainant’s lot as a street, under Stat. 1852-3, chap. 54 (Acts 1853, 89, § 3). Under the proceedings there directed, a jury awarded the plaintiff twenty-five dollars damages, which was tendered him, and which he declined to receive. He files his bill in Chancery, praying an injunction against the city, and damages.

Motion to quasb tbe original notice. Tbe court bad, by general rule, adopted and entered of record: “ ordered that parties defendants be required to plead, answer, or demur, on or before tbe morning, of tbe first day of tbe term.” Tbe notice in tbis instance served on tbe defendants, required them to appear and answer to tbe petition, on or before tbe morning of tbe second day of tbe term.

This was a criminal proceeding commenced before a justice of tbe peace, charging that intoxicating liquors were kept upon the premises of the plaintiff in error, with intent to sell the same, in… Held: that there was no error in the proceedings before the justice, and affirmed the judgment rendered by that officer. The defendant then sued out this writ of error, and in this court, assigns for error, the various rulings complained of in the court below.

Suit to recover tbe value of certain property claimed by plaintiff, and taken and sold by defendant, as constable, on. :an execution against one Wright. Tbe defendant’s answer •was a general denial of the petition. Tbe plaintiff applied .for a continuance, and filed an affidavit for tbe purpose of .obtaining tbe same. Tbe motion was overruled.

This was an action commenced before a justice' of the peace, to recover eighty dollars, as the value of a yoke of oxen and a yoke, sold to defendant, with interest thereon, and seven dollars and sixty cents as costs incurred by the plaintiffs in a suit'by them against Benton Post, upon a note of said Post, transferred to plaintiff by the defendant.

<p>A person appointed guardian of a minor, having no fhther, under the act entitled “An act concerning minors, orphans and guardians,” approved January 25, 1839, became guardian of the property, as well as of the person, of the ward.</p> <p>Proceedings by the guardian to sell the real estate of the ward, under the act of January 25, 1839, did not abate by the resignation of the guardian.</p> <p>Where a guardian of the person and property of the minor, filed a petition in the county court, to sell the real estate of the ward, and before a hearing upon the petition, resigned; and where, upon the appointment of another guardian, the proceedings to sell the real estate, were carried on, without filing a new petition, or serving a new notice upon the ward, and a license to sell was granted to the new guardian, as successor of the one in whose name the proceedings were commenced; Held, That the proceeding for license to sell, did not abate, by reason of the resignation of the first guardian ; and that the license was properly ’granted to the second guardian.</p> <p>Where in a proceeding in Chancery to set aside a guardian’s sale of real estate, it was alleged that the ward nSver had any legal notice of the application to sell the real estate; and where it appeared from the record of the county court, which granted the license to sell, that it had been “ proved to the satisfaction of that court, that notice, according to law, had been given ” of the hearing of said petition, to sell said real estate; Held, That the decision of the county court on the sufficiency of the service of notice, could not be examined into collaterally.</p> <p>The approval by the county court of a sale of a minor’s real estate by his guardian, as required by section 1506 of the Code, in order to make the sale valid, is not a mere formality.</p> <p>A deed takes effect from delivery; and a guardian’s deed cannot be delivered until after it is approved by the county court. Such approval, is an affirmation, not merely of the deed, but of the sale.</p> <p>Chapter four of the Code, was intended to save all existing relations, duties and rights, until they were duly superceded under the provisions of that statute.</p>

In September, 1855, tbe plaintiffs brought their action against the defendants, and attached a certain half lot in the city of Muscatine, to satisfy any judgment they might recover. In June, 1856, they obtained judgment, with an order for a special execution against said half lot.

This was a bill brought to recover dower in lot sixty six in the town of Dubuque, Iowa. From tbe answer, it1 appears that Francis K. O’Eerrall, husband of complainant, being seized, conveyed tbe above lot by a deed of conveyance, in wbicb sbe as bis wife, joined.

<p>Unless a devise to the wife by the husband, either by express words, or by necessary implication, is intended in lieu of dower, the wife will not be compelled to elect which she will take, but is entitled to both.</p> <p>If it is left in doubt whether it was the testator’s intention that the wife should take the devise, in addition to her dower, she will not be put to her election.</p> <p>D. D., who died without issue, devised to his wife for life, two hundred and forty acres of land, and twelve hundred dollars, to build her a house, and all his household and kitehen furniture, and after other bequests, directed that at the death of his wife, the real estate devised to her, should go to the minor heirs of J. D. The widow having deceased, an action was brought by her administrator against the executor of the husband, to recover one-half of the assets of the estate of the husband, to which it was alleged, the widow was entitled. The exeeutor answered, denying the right of the widow, to one-half of the personal estate, setting up the will of the testator and its pro'bate, and alleging that the widow approved of the provision made by the said will for her support. To this answer, the plaintiff replied, admitting the execution of the will, and averring that the said widow rejected the provision made for her by the will, and claimed her dower; that she relinquished all rights conferred upon her by the will; and that she never at any time, approved of the provisions of the same, respecting herself. Attached to this replication, were copies of the protest made by the widow to the county court, against the provisions made for her by the will, and of her petition for the assignment of her dower. The replication was demurred to, for the following reasons: 1. That the petition to the county court for dower, was insufficient to show, that the widow elected to take dower, and relinquished her rights under the will; 2. That the protest made to the county court> did not amount to a relinquishment by her, of all rights conferred upon her by the will, which demurrer was sustained by the court.</p> <p>Held, 1. That there did not appear to be any such inconsistency between the widow’s claim for dower, and her right to the estate devised to her by the will, as should necessarily put her to an election between them.</p> <p>2. That the court erred in sustaining the demurrer.</p> <p>Section 1410 of the Code, in relation to the rights of the wife in the estate of a husband dying without issue, is intended to refer primarily to the estate of a person who dies intestate, without issue.</p> <p>Where the husband dies without issue, and the estate, or part of it, ia disposed of by will, the widow is not entitled to one-half of the estate.</p> <p>The husband, though dying without issue, may, by his will, deprive his wife of all interest in his estate, except her dower, as allowed by law.</p>

<p>Where there are several respondents to a bill in equity, against whom, the same claim to relief is made, some of whom deny the right of the complainant to the relief sought, while others allow defaults to be entered against them, the complainant is not entitled to a decree against those in default, unless he establishes his right to the relief prayed for against those who have appeared.</p> <p>A complainant in Chancery ¡3 required to satisfy the chancellor that he is entitled to relief, although there has been no appearance by the respondent.</p> <p>If the proof made, shows a want of equity in the complainant’s case, he must fail in his suit. „</p> <p>P. having a “ claim ” or “ settler’s right ” on a certain tract of land, on the 13th of August, 1838, by a written agreement, sold the same to W. for the consideration of $1,500. This agreement was filed for record on the 9th of December, 1838, but was never acknowledged. C. and D. having actual notice of said agreement, in March and April, 1839, purchased the interest of W. in the land, and on the 12th of the latter month, P. on the margin of the record- where said agreement was recorded, made and signed an entry of satisfaction as follows: “ I hereby relinquish all my right, title, interest and claim to the within described property, for value received." The land was entered in the years, 1839, 1840 and 1841, by different individuals, and in different parcels. A portion was pre-empted in 1840, by one P. and another, at which time, P. (the complainant) as one of their witnesses, made oath, that he had no interest in said land, and that so far as he knew, there was no other claim thereon, than that set up by the pre-emptors. P. never resided on this land, and at the time of his sale to W. had a claim or claims on a section or more of government land, besides the tract in controversy. The sale to W. was made with the understanding that W. was to hold the claim for P. for an agreed consideration, and P. was to furnish the money to enter the same, and then take the conveyance from W. When P. sold to W., the claim was worth about the sum stipulated in the agreement. Several years since, a portion of the land was laid off into lots, as additions to the town of Burlington, since which, many valuable improvements have been made on it, and the premises are now worth from $15,000 to $100,000. P. has constantly since 1835, resided near the land, and passed over or near it, during that time, at least once each week. He has also, taken title to some of the lots so laid off on said land, from the original proprietors or their grantees, and again contracted to sell the same. W. left the county for parts unknown, soon after his sale to D. and C., insolvent, and until the last five years, P. has set up no right or claim to the premises, under his contract ■with "W. — nor is any reason shown for the delay. On bill filed by P. asking a decree for the land, or that he may have a lien on the same, for the pur-' chase money under the contract with W.; Held, That P. was not entitled to relief.</p>

<p> Appeal from the Linn District Court. </p> <p>This action was brought upon a bill of exchange, drawn by the defendants, for $500, on the 16th of September, 1856, and protested, and upon an open account for goods and merchandise, sold and delivered the defendants, to the amount of $1,128.18. The petition embraces a prayer for an attachment, based upon the allegation and affidavit, that “the defendants have property, goods, moneys, lands, choses in action, and merchandise, which they refuse to give either in payment or security of said claims.”</p> <p>The pleadings in their several natures, are as follows: First. There is a motion, (in substance), to quash the attachment, for want of a sufficient bond, because the attorneys who signed the name of the-principal, had no authority so to do, and because the surety is a partnership, whose name was signed by one of the partners, without the knowledge and consent of the other. Secondly. A plea in abatement to a part of the cause of action, upon the alleged ground that $1,102.42 of the account were not due when the action was commenced, the goods to that amount having been sold to defendants on a credit of four months, and the action having been brought within one month after the sale. This is accompanied by a prayer that a corresponding proportion of the goods attached, be released. Third. There is an issue taken on the affidavit for attachment. And the fourth branch of the answer is a set-off of a claim- for damages on the attachment bond, for the wrongful suing out of the attachment. Issues are taken on all these pleadings and motions, without distinction. The defendant afterwards, with leave of the court, withdrew his set-off. The cause was tried by the court, who find for the plaintiff on the bill of exchange and one item of the account, and on the balance of the account, ($1,102.42), order that “ all the proceedings be quashed and abated, without prejudice.”</p> <p>In order to prove that the defendants had property, &c., the plaintiffs were permitted to introduce in evidence, a portion of the affidavit for attachment in a suit brought by Converse, Todd & Co., against these defendants, which was before then pending in that court. The part of the affidavit so offered, was in these words: “Tour petitioners further state, that the said defendants are about fraudulently to dispose of their property with intent to defraud their creditors.” And also were permitted to introduce a portion, of like import, from a similar affidavit in a suit commenced by attachment, in favor of Eiske & Elliott, against the same defendants, in both of which suits a default had been entered. The defendants appeal.</p>

<p> Appeal from the Davis District Court. </p> <p>These parties submitted a certain controversy, in which, the plaintiff claimed damages for injuries resulting to his wife, by reason of the upsetting of the defendant’s coach, to arbitrators. The submission reads as follows:</p> <p>“Know all men by these presents, that whereas Solomon McKinney and the Western Stage Company, acting by their agent, 0. Puller, have this day agreed to submit the following matters in controversy between them, to the arbitration of Martin Suoddy, M. J. French, and 0. D. Tisdale, to wit: McKinney claims of the said Western Stage Company, three thousand dollars damages occasioned to bis wife, by reason of the upsetting of a certain passenger wagon, at Hillsborough, Iowa, on or about the 29th day of February, A. D. 1856, by reason of which certain injury was done to the collar bone and other portions of the body of said Mrs. McKinney. Now, we hereby agree and bind ourselves, that we will abide by the award of said arbitrators in the matters herein in controversy, and that their award may become a judgment of the District Court of Davis county, Iowa, after ten days from the award of the same. Said arbitrators shall take into consideration the following facts:</p> <p>“ 1. Was any damage done to plaintiff, by reason of the upsetting of said wagon ?</p> <p>“2. Is defendant liable for such damage ?</p> <p>“ 3. What is the amount of damage to which the plaintiff is entitled, if any ?</p> <p>“ The above arbitrators are to be governed by the regulations of the District Court, in the investigation of this cause, and such award may become a judgment, by the entry of the clerk of said District Court of said Davis county, to be entered at any time after the same has been filed in his office by tbe arbitrators, but not to be binding as a judgment until after ten days from date. • The arbitration above contemplated, to take place on tbe 25th day of June, at 10 o’clock A. M., in Bloomfield. Depositions may be used as evidence in said arbitration, to be taken before any officer, authorized to administer oaths, reasonable notice of not less than five days, being giten of tbe time and place of taking tbe said depositions.”</p> <p>Tbe award being in favor of plaintiff, and judgment ren- ■ dered thereon by said clerk, defendants filed their petition for what is styled a writ of error coram nobis, to inquire into tbe regularity of tbe proceedings Before said arbitrators, as well as' tbe regularity of said entry of judgment by said clerk. At tbe next term, said writ was, on motion of plaintiff, dismissed, and tbe judgment so entered by tbe clerk, vacated. The plaintiff then moved for judgment on tbe award, and tbe defendant interposed various objections to tbe same. The award was adopted — judgment entered thereon in favor of plaintiff — and defendants now appeal.</p> <p>cited tbe following authorities: Palmer v. Lorrilard, 16 Johns. 343 ; 4 Cow. 82; 1 "Wend. 56; Cage v. Peed, 15 Johns. 426 ; 5 Wend. 20; Vosburgh v. Bane, 14 Johns. 302 ; Code, § 1679 ; 1 Chitty on Plead. 73; 1 Bright’s Husb. and Wife, 16 ; Yan Santvoord’s Plead. 128.</p> <p>relied upon tbe following : 3 Comst. 168 ; 5 Barb. 409; 1 New Jersey, 32; Lewis v. Burgess, 5 Gill, 129 ; Vaughn v. Graham, 11 Miss. 575; Moody v. Pickard, 8 Blackf. 58; 9 Missouri, 36 ; 8 B. Mon. 536 ; 2 Petersdorf, 135 ; 7 Cowen, 185; 11 111. 567 ; 1 Texas, 197 ; 1 Barb. Cb. 173 ; 1 Barb. 325; Karthous v. Kanor, 1 Peters, 227; 1 Hill, 489; 2 New Hamp. 179; 14 111. 62; Lutz v. Linthicum, 8 Peters, 165.</p>

<p> Appeal from the Davis District Court. </p> <p>Slander. Yerdictand judgment for the plaintiffs. The defendants appeal. The facts in the case, are stated in the opinion of the court.</p>

Slander, for speaking and publishing of the plaintiff, the words following: “ She had a child in Indiana.” The petition was demurred to, on the ground that the words charged, were not actionable per se, and no special damage, was alleged. The demurrer was sustained, and the plaintiff appeals. The words charged accuse the plaintiff, she being unmarried, with having a bastard child in Indiana. Are these words actionable? We say they are.

The plaintiffs sued the defendant as a common,carrier, for so negligently and carelessly performing his undertaking to carry a demijohn, containing six gallons of brandy, from Burlington to Oskaloosa, in Iowa, that the same was lost and destroyed.

Foreclosure of a mortgage. The defendant, H. M. Yance, previous to the year 1849, had sold to Peter Brewer, a tract of land ■ on Skunk river, in Des Moines county, on which to erect a mill, and to… Held: that the agreement was not an undertaking on the part of Yance, to give to Roe a lien for the payment of the note, but only for such money, labor and material, as should be furnished by Roe to Brewer to build the millj subsequent to the date of the agreement.

Information before a justice of the peace, ebarging the defendant with having sold intoxicating liquors to divers persons therein named. A motion was made to quash the warrant of arrest, and a demurrer filed to said information, both of which were overruled. Trial by jury, verdict of guilty, judgment thereon, and defendant appealed. In the District Court the judgment of the justice was affirmed, and defendant prosecutes this writ of error.

> A complaint was entered before a justice of tbe peace, against the plaintiff in error, for solemnizing a marriage without a license, on the waters of the Mississippi river, within the jurisdiction of the state of Iowa. The justice found him guilty, and rendered judgment against him for the penalty of fifty dollars, from which he appealed to the District Court, where the judgment of the justice was affirmed.

This was a writ of error to tbe judgment of tbe District Court of Mahaska county, affirming the judgment of a justice of the peace, by which the plaintiff in error, was fined twenty dollars on an information charging him with selling intoxicating liquors.

' This was an action on the case for slanderous words spoken, commenced in October, 1852. At tbe return term, defendant appeared and filed his answer, denying the speaking of the words, as charged in plaintiff’s petition. On the 26th of March, 1855, defendant filed a further answer, to which there was a demurrer, which was sustained.

The plaintiff in error was convicted of a misdemeanor, and filed a motion for a new trial upon the following three grounds: 1. That the verdict was not warranted by the facts shown by evidence. 2. That the verdict was contrary to law. 3. That the verdict was contrary to the evidence.

Replevin for a chest of carpenter’s tools. The cause was originally tried before a justice of the peace, and judgmenti rendered against the plaintiff for nine dollars and costs. The transcript of the justice shows that on trial before him, the plaintiff, after examining one witness, and reading a receipt to the jury, which was not objected to, rested his cause. The defendant then moved for a nonsuit, on the ground that plaintiff’s witness had not been sworn.

Briggs alone was sued, and in bis answer, among other things, is the’following averment: “ And defendant' denies that plaintiff has any cause oif action against him, because he says said supposed contract was made and entered into in the state of Illinois, and not in the state of Iowa.

Action of replevin, originally commenced before a justice of tbe peace, and taken by appeal to tbe District Court. It appears from tbe bill of exceptions, that in tbe District Court, the attorneys on both sides read tbe instructions to the jury in the arguments; that tbe court passed upon them, marking some “given,’’’some “refused,” and some “modified,” and gave them to the jury without again reading them —no objection being made by counsel.

This action was. brought before ajustiee of tbe peace, in June, 1856, to recover for certain supplies furnished said boat. . Held: that plaintiffs were not parties to the proceeding under which the boat was sold; and that it was not thereby discharged from the lien given1 to them for'the supplies furnished, under the laws of -this -state; Judgment accordingly for plaintiff, and defendant appeals'. cited the following authorities: Steamboat Champion y. Jantzer,…

<p> Appeal from, the Dubuque 'District-Gourt. </p> <p>■ The plaintiff sued the defendants for money had and received to his use. The defendants severed in their-pleas, each pleading matter pertaining to himself alone.' Rogers denied having received money to the use of -plaintiff; answering, however, that Booth, (of the firm of Barney & Co.), requested him to deliver certain moneys to Merritt, which he took and so delivered. • Barney & Co.-answer that plaintiff authorized Booth, one: of the firm,, to receive certain money coming to plaintiff, -from the United States, On a. surveying contract, and pay it- to certain persons, among whom was Merritt, and that Booth received it, and so paid it. Merritt answers that he received the money, and claims that he had a right to receive it, and also to hold it to his own use, upon grounds which are set forth. On the trial, some testimony having been given before the jury, the plaintiff entered a nolle prosequi as to all the defendants, except Merritt, whereupon, on motion of the counsel of Merritt, the court held that this nolle prosequi operated to dismiss the action, as to the remaining defendant also. From this decision, the plaintiff appeals.</p>

<p> Error to the Mahaska District Court. </p> <p>Indictment for assault and battery, witb intent to commit great bodily injury to one C. C. IIow. A motion to set aside tbe indictment, and a demurrer to tbe same, were overruled by tbe court. Tbe defendant, (plaintiff in error), then pleaded not guilty, and on tbe trial, exception was taken to tbe ruling qf tbe court, in refusing to suffer a witness for tbe State to answer certain questions on cross-examination, and in sustaining tbe objection made by tbe State to tbe introduction of certain testimony offered by defendant. Tbe defendant was found guilty of an assault, and fined $25.00. To tbe judgment of tbe court, be now prosecutes this writ of error.</p>

<p>It is not necessary to the validity of a trust deed or mortgage, containing a provision, authorizing the grantee to sell the premises, on breach of certain conditions specified therein, that the grantee should join in its execution, or sign and acknowledge the same; or that he should signify his willingness to make the sale, or undertake the execution of the power, by any formal writing indorsed on the deed.</p> <p>Under such a conveyance, the grantee, upon breach of the conditions, may foreclose by sale, without the aid of a court.</p> <p>Where a deed of trust or mortgage authorizes the grantees to sell the premises, upon breach of the conditions contained in the conveyance, first giving thirty days’ notice of the time and place of sale, a publication of the notice of sale for five successive weeks in anewspaper — thirty days having elapsed between the first publication and the day of sale — is sufficient notice.</p> <p>Where in a proceeding in equity to redeem certain real estate sold under a deed of trust, or mortgage, containing a power of sale, it appeared, that I. L. being indebted to C., the said I. L. and one J. L. to secure the said debt, on the 25th day of October, 1842, executed a conveyance of real estate, to P. & C., which deed provided that upon the failure of said grantors to make payment according to the terms of the deed, the said P. & 0. were empowered to sell said premises to the highest bidder for cash, “ first giving thirty days’ public notice of the time, place, and terms of sale, and of the property to be sold, by advertisement in some newspaper printed in Burlington, Iowa Territory,” and which deed also contained the following clause: “ And the said parties of the second part, (P. & C.) covenant faithfully to perform and fulfill the trust herein created. In witness whereof, the said parties have hereunto set their hands and seals, the day and year above written,” which deed was signed and acknowledged by the grantors, but not by the said trustees; and where on the 8th day of May, 184Y, default having been made in the payment of said debt, the trustees sold the land to the respondent, and in July, 1848, executed and delivered to him a deed for the same— notice of which sale was given by publication in a newspaper, printed in Burlington, which publications were made on the 8th, 15tb, 22d, and 29th of | April, and on the 6th of May, 184Y; and where on the 26th day of September, 1855, the eomplainanta applied to respondent to redeem said real estate, and tendered him his purchase money and interest, -which was declined by the said respondent; and where, upon the hearing, the petition of the'complainants was dismissed; Held, 1. That it was not necessary for the trustees to become a party to the conveyance; 2. That the notice of sale was sufficient, and the sale valid; 3. That the bill was properly dismissed.</p>

<p> Appeal from the Dubuque District Court. </p> <p>Petition in. Chancery tó foreclose a mortgage given by defendants, to secure the payment of two notes, one dated February 25th, 1855, and the second, dated May 3d, 1855, each for the sum of $1,250, and payable- in one year from date, to N. W. Capwell, and indorsed to plaintiff, February 12th, 1856. The defence was usury. The defendants admitted the making of the notes, and the execution of the mortgage to secure their payment, and aver that Capwell, the payee, lent and advanced to the defendants two thousand dollars — for the loan and forbearance of which, he ivas to receive interest at the rate of twenty-five per centum per annum, and for the payment of said sum of money, with interest after the rate aforesaid, the notes were given. They require the plaintiff to reply under oath to their answer, and to state whether the notes were or were not transferred to him in good faith ; whether he was aware at the time he received them, that they were given upon a usurious consideration ; and whether or not the transfer to him was made in older that suit might be brought in his name as assignee, to prevent defendant from making his defence; and also to state the time and place when and where the transfer was made, and the consideration paid by him. The plaintiff replied under oath, and denied all knowledge of the alleged usury ; that the notes were purchased by him for a good and valuable consideration paid, in good faith, and without any knowledge or suspicion, that there was an agreement for the payment of usury between the payee and makers; and that the amount paid by him to Capwell for the notes was the sum of $2,463.54, at Rockford, Illinois, on the 12th February, 1856, when the indorsement was made. On the trial, Lee, one of the defendants, was offered as a witness, to prove the usurious consideration of the notes, sued on. The plaintiff objected to his being sworn as a witness. ¡ .The objection was overruled by the court, and Lee permitted to testify. Judgment was rendered for the plaintiff for $2,000, the principal sum loaned, without either .interest or costs. Plaintiff appeals, and assigns the following errors:</p> <p>,1. The court erred in allowing Lee to testify.in relation to the usury.</p> <p>2. The court erred in allowing any defence of the nature of usury to be set up in this cause. • .</p> <p>3. The court erred in finding, the. contract usurious between the original parties, on the. testimony of only on,e witness, over the sworn replication of tjie plaintiff.</p> <p>4. The court erred in holding the law of 1853, applicable to commercial paper, in the hands of an innocent holder.</p>

<p>By answering over, a party waives bis demurrer.</p> <p>A recognizance in a criminal case, not capital, cannot operate as a supefcedeas on writ of error, unless allowed by a judge of the Supreme Court, as provided. by section 3090 of the Code; and without such order of allowance, the District Court, under section 3230, possesses no power to take such recognizance.</p> <p>Section 3094 requires that the supreme judge ordering a stay of proceedings, shall make the order, and prescribe the conditions of the recognizance.</p> <p>The recognizance, or a copy of it, should be returned to the Supreme Court, with the record of the case; and that court, where the cause is reversed and remanded, should make an order concerning the future action of the party charged, answering to the condition of his undertaking.</p> <p>Where a scire facias on a recognizance alleged that one H. having been convicted under an indictment for defacing a school-house, was sentenced to pay a fine of one hundred dollars; that H. sued out a writ of error; that it was ordered that the defendant be held to bail in the sum of one hundred dollars, with sureties for an equal amount, for his appearance; that the defendant and one C. came into open court, with the said- H., and each acknowledged themselves to owe and be indebted to the state of Iowa, &c.; that the condition of the recognizance was as follows: 11 Now, if the said H. shall sue out a writ of error to the Supreme Court, and proseéute the same to effect in said court, and obey the requisitions, order or judgment of the same, in the premises, then the above obligation to be .voidthat the said judgment of the District Court was rendered, arid it was ordered that further proceedings be had in the District Court, not inconsistent with the opinion of the Supreme Court; that a writ of procedendo issued accordingly, commanding further proceedings, as- if no judgment had been rendered, or writ-of error sued out; that afterwards, at the May term, 1855, the said H., though three times solemnly called, came not, and the court ordered, that his default in the premises be entered; and where the defendant answered, denying that H. had sued out s, writ of error; and averring that there was no law authorizing the recognizance; that there was no requisition, order or judgment of the Supreme Court, that H. was called upon to obey; and that H. had performed the condition of his recognizance; and where on the trial, the State offered in evidence the writ of procedendo, which contained no special order in relation to H., but is in the usual form, which was all the evidence on the part of the State; and where the defendant proved by the clerk of the District Court, that there was no writ of error in that cause, on file in his office; and where, upon this evidence, the court found for the State, and rendered judgment against the defendant; Held, 1, That the scire facias did not allege, nor the evidence show any breach of the condition o 1 the recognizance; 2. That the judgment below was erroneous.</p>

<p> Appeal from the Mahaska District Court </p> <p>This was an appeal from tbe judgment of tbe District Court, dismissing an appeal from the county court of Mahaska county, establishing a .road in said county. The plaintiff and twenty-one other persons presented the petition for the establishment of the road. On the coming in of the report of the commissioners appointed to examine as to its expediency, the defendant and twenty-nine other persons presented a remonstrance to the county court against its being established. The defendant, Simms, claimed compensation for the damages which he alleged that he would sustain if the road was established. His damages were assessed by appraisers and paid into court for his use. The county court on hearing the parties, and their proofs for and against the road, ordered that it be established, opened and worked as other county roads. From the order, Simms appealed to the District Court, in which court, the petitioners moved to dismiss the appeal, for the reason that the defendants had no such interest in the subject matter of the order of the county court, as authorized them to take the appeal. The District Court sustained the motion, and dismissed the appeal, and the errors assigned by the defendants are upon the judgment of dismissal.</p>

<p>In the ease oí a misdemeanor, where the fact charged in the- indictment, appears to be unlawful^ it is unnecessary to allege the act to have been un~ lawfuily.done.</p> <p>Such an averment is in no oaae essential, unless it be part of the description of the offence, as defined by statute.</p> <p>An indictment which charges that the defendant “willfully obstructed the public road (describing it) contrary to law,” sufficiently avers that the act charged was unlawfully done.</p> <p>Where an indictment for obstructing a public road, described the road as fol-laws: “ The public road or highway leading from Fort Dodge to Fort Des Moines, Iowa, on the east side of the Des Moines river, lying and being in Boone township, Boone county, Iowa;" Seld, That the road was sufficiently described in the indictment.</p>

<p>Where a party fails to feast his exceptions to the ruling of the court, in. refusing instructions, at the time of such refusal, it is too late to do so after ver- i diet.</p> <p>Where a party fails to except to the ruling of the court, in refusing instructions, at the time of such refusal, the appellate court will not inquire whether the instructions were improperly refused.</p>

This was a complaint entered before a justice of tbe peace, against the defendant, for an assault and battery. The defendant filed a proper affidavit for change of venue, which was refused, upon the ground that the act of 1858, (stat. 1858, 94), does not apply to criminal cases. The tlial proceeded before the justice, and the defendant was convicted. He filed an affidavit of facts, and appealed. In the District Court, the judgment of the justice was affirmed.

The petition in tbis cause charges that the defendant, willfully and negligently, and without proper care and caution, intending and contriving to injure the plaintiff, set fire to the grass and herbage on defendant’s land adjoining that of plaintiff, and negligently allowed the fire to spread, and pass to the premises of plaintiff, whereby the property of plaintiff of great value, was destroyed and burned.

This suit was brought on a negotiable promissory note by the indorsee, against Merritt, the maker, and Sloan, the indorser thereof. There was judgment by default against the maker, and issue joined between the plaintiff and indorser, as to the latter’s liability. On this trial, the controversy appears to have been, whether the indorser was released for want of notice of the non-payment of the note by the maker.

Prick to the October term, 1851, of the District Court of Dubuque county, the complainant filed her petition therein, asking a divorce from the bonds of matrimony existing between her and her husband, Charles O’Hagan. At that term a divorce was decreed as prayed, and the husband required to pay a certain sum, “ in full, as alimony,” to the said petitioner.

Richard Perjue, tbe father of these parties, made his written will, February 25, 1851, and died about the first of August, 1855. By the terms of this will, his entire estate was given to his wife, for and during her life, upon conditions therein stated, excepting a small amount to a granddaughter.

<p>■Where a creditor’s bill waa filed in September, 1854, which did not require the respondents to answer under oath, and the answer to which was not sworn to; and where, after the cause had been pending two or three terms, and over a year, the respondents asked and obtained leave to file an amended answer, in the nature of a plea, and on the 16th of June, 1856, filed an answer, consisting of the entire former one, with an addition setting up other matter, which amended answer was sworn to; Held, That the answer could not be treated as a sworn answer.</p> <p>In proceedings under a creditor’s bill, to reach real estate alleged to have been fraudulently conveyed, neither the answer of the grantor, in a chancery suit, nor his oral declarations made, nor letters subsequent to the conveyance, are receivable in evidence to affect tbe title of the grantee, without evidence that the grantee colluded with the grantor, with a fraudulent intent.</p> <p>And the declarations of the grantor, made after such conveyance, are not receivable in evidence, to show such collusion.</p>

J. Selman, assigned the same to plaintiff. Defendant, among other things, pleads that said note is not the property of plaintiff, but of said J. J. Selman. This is denied in the replication. The cause was submitted to the court, and during the trial, as shown by the bill of exceptions, plaintiff offered said note in evidence, and thereupon the attorney for defendant, asked to inspect the same, and it was accordingly handed to him for that purpose.

. Suit to recover the value of one hundred, walnut logs, the' property of the plaintiff, of the value of three hundred dollars, alleged to have been taken and carried away by the defendant. The defendant answered, denying the claim to the logs set up by plaintiff, and issue being joined, the defendant filed an affidavit and motion, praying a change of venue, on account of interest and prejudice of the judge, to some other judicial district.

The defendant was indicted for baying leased a bouse, knowing tbat tbe lessee intended to use tbe same as a place or resort for tbe purpose of prostitution and lewdness, and for baying knowingly permitted sucb lessee to use tbe same for sucb purpose.

The respondent made bis bond for tbe sale and conveyance of certain real estate to plaintiff. Eor tbe consideration money, complainant executed bis promissory notes, wbicb were assigned by defendant, and judgments recovered tbereon in tbe name of tbe assignees.

This action was brought to recover damages for -an injury sustained by plaintiff, by the upsetting of a stage coach in which he was a passenger, and of which the defendants were the proprietors. On the trial, certain instructions were given, (for which see the opinion of the court-,) to which defendants excepted, and the verdict and judgment being against them, they now appeal.

This was a suit against husband and wife jointly, for tbe price of goods, ware and merchandise alleged to have been sold and delivered to tbem, for tbe use of tbeir family. A demurrer to tbe petition was overruled. The defendants tben filed their answer, denying any indebtedness to 'plaintiff as charged. A motion to suppress depositions taken by plaintiff, and a motion by defendants for a continuance, were overruled. Judgment for the plaintiff for $288.56. Defendants appeal.

This was an action for a trespass upon certain lands, described by congressional numbers, and the trespass is laid in Boone county.

Error to the Marshall District Court.- Indictment for assault and battery. The facts of the case will be found fully stated in the opinion of the court.

Replevin for a hog, to the possession of which plaintiff avers he is entitled, and which is wrongfully detained from him by defendant. The defendant, by his answer, alleges that the hog is not the property of plaintiff, but is the property of defendant. The action was commenced before a justice of the peace, and the judgment rendered in favor of defendant.

Johnson & Briggs made tbeir promissory note to one Berger, wbo indorsed tbe same to plaintiff. Tbe makers and indorser being sued, Johnson not being served, tbe material question in the case, arose upon the liability of defendant Briggs.

<p> Appeal from the Johnson District Court. </p> <p>This was an agreed case, submitted to the. District Court of Johnson county, involving the right of the appellant (Young) to hold and exercise the office of mayor in the city of Washington, in this state. The court below having decided adverse to such right, the defendant appeals. The material facts will appear from the opinion.</p>

This was a suit by plaintiff'as holder, against' defendant as maker, of a promissory note, payable to L. J. Royster or bearer. The defendant moved to quash the notice, and continue the cause, because the original notice did not show that the note had been assigned to plaintiff by Royster, and did not suffieientlj'- advise the defendant of the nature of the claim against him.

The whole of the claim was rejected, and the plaintiff appealed. On the filing of the appeal in the District Court, the defendant county filed an answer, embracing a set-ofij with their bill of particulars, amounting to twenty thousand and fifty-nine dollars and twenty-nine cents. The answer also sets up a settlement and payment, and pleads a former adjudication of the matters involved.

Delaware District Court. This case was commenced before a justice of the peace, and taken by plaintiffs to the District Court by writ of error.

This was a bill to enforce the fulfillment of an alleged contract for the sale and conveyance of a parcel of land.

The plaintiffs claim title to a tract of land under a deed, dated November 11, 1856, and recorded January 9th, 1857. Held: that said mortgage was not a lien upon said premises, but void as against the rights of said plaintiffs, and thereupon ordered a perpetual injunction as prayed. Defendants appeal. Is a mortgagee a purchaser, within the meaning of the registry law of Iowa? See definition mortgage, 1 Hilliard on Mort. 2 ; 2 Bouv.

The petition in this case alleges, that the complainant in August, 1851, gave a mortgage to one Gatton, on 160 acres of land in Muscatine county, to secure the payment of a promissory note for $150, due in fifteen months; that the complainant resided at the time in Illinois; that Gatton transferred the note to one Campbell, and Campbell to El etcher, and that when complainant came to Iowa to pay the note, Gatton told him he had no further interest in it, but could not tell…

Suit on promissory note, purporting to have been made by defendant Rossana, as executrix 6f Hugh Defrance, deceased. The defendants by their answer, under oath, denied the execution of the note, and denied any indebtedness to plaintiff. A trial being had on this issue, the jury returned a verdict for the defendants.

The plaintiff, as the husband of Eliza B. Plummer, claims of defendant the sum of $270, principal and interest, and for cause of such claim, states that the defendant, in pursuance of the will of Zur Combs, deceased, undertook and promised to pay tbe plaintiff one hundred and forty dollars, as set forth in said will; and that the claim has been on interest for fifteen years, and remains unpaid.