Volume 41 — Iowa Reports

Action to recover moneys received and appropriated to Ms own use by defendant, wMle acting as treasurer of plaintiff. The petition shows that the collection and appropriation of the county moneys by defendant was more than three years prior to the commencement of this action. • A demurrer to the petition on the ground that it shows the action to be barred by the statute of limitations, was sustained. Plaintiff appeals.

<p>Instruction: new trial. The jury is bound to regard the instructions of the court, even if they are erroneous; and where a verdict has been returned which conflicts with the law as given by the court, the Supreme Court will affirm the order granting a new trial, without reviewing the instructions. (Savery v. Busiclc, 11 Iowa, 487.)</p>

Action in chancery to quiet the title to certain lands. There was a decree granting the relief prayed for in the petition. The facts of the case appears in the opinion. Defendant appeals.

The plaintiff, as administrator of the estate of Patrick Deeney’, deceased, claims of the defendants the amount of a promissory note for the sum of $281.00, executed to Charles O’Neil, August 25th, 1866, due fifteen months after date, with interest at the fate of ten per cent, and alleges that Patrick Deeney purchased it in his lifetime, and it was transferred to him by delivery and assignment, without indorsement.

On tbe 9th day of July, 1872, the plaintiffs, trustees of the holders of the then outstanding mortgage bonds of the Des Moines Yalley Railroad Company, commenced their action to foreclose a mortgage of said company.

On the 30th day of December, 1874, the plaintiff presented to R. G. Reiniger, Judge of Floyd Circuit Court, a petition, stating its cause of action as follows: “That about the 11th day of March, 1874, the Directors of the District township of Ooldwater, in Butler county, Iowa, proceeded to lay off and organize the Independent District of Greene, including the village of Greene, in Ooldwater township, Butler county, Iowa.

Action in chancery. The petition alleges that defendant Eankin, to secure a promissory note by him made September 1, 1870, for $2,000, on the same day executed a mortgage on the N. i NE. £, and the NE. \ NW. and the SE. J Sec. 1, Tp. 72, E. 23, and the SW. i SE. ¿ Sec. 25, Tp. 73, E. 23, and other lands which need not be particularly described.

Action upon a verbal contract of warranty of a reaper purchased by plaintiff of defendants. The petition sets out the contract and breaches thereof. The answer admits the sale of the reaper by defendants to plaintiff, and sets out its terms, but denies the contract sued on. There was a verdict and judgment for plaintiff. Defendants appeal.

Action upon promissory notes; defense, that the action was barred by the statute of limitations. The cause was submitted to the court upon the following agreed statement of facts: “ The notes described in the petition were given for borrowed money, and the transaction was in Iowa. The plaintiff resided in Iowa at that time, and ever since. The defendant then resided in Minnesota, but was temporarily stopping in I.owa at the time the notes were given.

This is a proceeding under the statute, instituted by the defendants, a railroad corporation, to assess the damages sustained by plaintiff, on account of tlie appropriation and tailing by defendants, of a lot in Cedar Rapids, owned by plaintiff for the use of the railroad. Upon an appeal from the assessment made by the sheriff’s jury, judgment was rendered in 'the District Court in favor of plaintiff for the sum of $178; he now appeals to this court.

On the 24th day of December, 1874, the plaintiff filed iii the Winneshiek Circuit Court, a petition as follows: “The petition of the above named plaintiff respectfully shows that heretofore, to-wit: on the 13th day of December, 1873, said defendants made unto Downing & Yan Campen their promissory note for $400, with ten per cent interest, etc.” On the same day a notice of suit was duly served.

The petition alleges: 1. That on or about the 31st of July, 1872, the Census Board of tbe State of Iowa assessed petitioner for the purposes of taxation for the year 1872 on all its property, both real and personal, exclusively used in the operation of its road, in the aggregate value of $57,600, in Kossuth county.

This is an action against the defendant, H. E. Wilson, and the sureties on his bond as clerk of Boone county, for the years 1867 and 1868, to recover an amount of money, $831.20, and interest, alleged to have been received by him as clerk for fees and costs, and which he failed to report and account for. The answer is in denial. There was a trial to a referee who reported the evidence taken, by him, but did not make any findings of fact.

On tbe 29th of June, 1871, John Walters, a child a little less than two years old, was upon the track of defendant, in Eiftli street, in the city of Davenport, when a freight train of defendant ran over him, inflicting injuries of which he died in a few minutes. In August, 1871, plaintiff brought this action as the administrator of the child’s estate. A former trial resulted in a verdict and judgment for plaintiff for $750.

Action to recover land. The cause was tried to the court without a jury and a judgment rendered for plaintiff. Defendant appeals.

The plaintiff filed in the Henry Circuit Court a petition, claiming of defendant, as the administrator of the estate of her deceased husband, Thomas Grant, the sum of fifteen hundred dollars, for caring for, protecting and managing her husband during an insanity, of sixteen months, under an appointment as special custodian, by the commissioners of insanity of Henry county.

On the 9th day of July, 1873, plaintiff commenced an action against Alfred and Elizabeth J. Oolvin for the foreclosure of a mortgage, making Jacob Elliott a party as a purchaser subsequent to the mortgage. The original notice was returnable to the September Term of court, which commenced September 1st, 1873, and was served on the defendant, Elliott, in Union county, August 13th, 1873. On the second day of the term default was entered against Alfred and Elizabeth J. Colvin.

Action at law. An amended petition, filed after the commencement of the trial, sets out the cause of action in the following words: “ That prior to the 16th day of September, A. D. 1872, plaintiff, being an experienced miner, prospected for and discovered coal on certain land in Boone county, Iowa, to-wit:' The north-west quarter of the south-east quarter and the south one-fifth of the south-west quarter of the south-west quarter of the north-east quarter, all in section 12,…

Afpeal from Pottawattamie Circuit Court. The plaintiff claims the amount of two promissory notes, each for the sum of $773.50, executed hy defendant to II. B. Smithers and Jno. Morris, on the 6th of December, 1869, and by them assigned to plaintiff on the 7th day of December, 1869. One of these notes is due the 28th day of December, 1869, and the other the 12th day of January, 1870. Both are payable to the order of II.

Action in chancery for a divorce. A divorce as prayed for in the petition was rendered by tbe court. Defendant appeals. The facts involved in the questions decided appear in the opinion.-

This is a suit in equity, commenced June 22, 1872, to set aside and annul a certain contract entered into between the plaintiff and defendant, September 1, 1862, for the sale of tbe swamp lands of the county, and its claims thereto under certain acts of Congress and of the General Assembly of Iowa.

Action to recover certain city taxes levied by plaintiff upon property, real and personal, of defendant, situated within the corporate limits of the city. The cause was submitted to the court upon an agreed statement of facts, and certain questions arising thereon were, by agreement of parties, presented for decision. There was a judgment for defendant, and plaintiff appeals.

This is an appeal from an order made by a judge of tbe Supreme Court, allowing an injunction upon a petition to ■restrain the removal of the county seat of Adair county, from Eontanelle, its present location, to Greenfield, under vote thereon by the people. The injunction having been allowed, the defendants appeal. An order granting a temporary injunction, when made by a judge of the Supreme Court, cannot be appealed from.

The plaintiffs bring this suit in equity to restrain the defendants from selling plaintiffs’ lands, situated in Carroll county, for the non-payment of taxes thereon for the years 1866 and 1867. A temporary writ of injunction was ordered, and upon the final hearing of the cause, on the petition, answer, cross demand, answer thereto and evidence, the injunction was made perpetual as to some of the taxes and dissolved as to the others. Both parties appeal.

Action to recover the value of certain hogs, killed by a train - of cars upon defendant’s road, and damages sustained from fire originating from a locomotive operated by defendant. There was a verdict and judgment for plaintiff; defendant appeals.

<p> Appeal from Warren Ci/rouit Court. </p> <p>This action was brought to recover possession of the W. -J-of N. W. ¿ of section 22, and the W. -J- of S. W. and S. W. J of N. W. J- of section 15, all in township 77, range 28. The plaintiff claims to be the absolute owner thereof, and that he is entitled to three hundred dollars damages for being unlawfully kept out of the possession of the same. The defendants filed an answer in general denial, and also a cross petition in equity, averring that they were the owners of the lands; that the plaintiff claims title thereto under certain tax sales and deeds; that defendants had redeemed from part of said sales, and by an agreement with plaintiff were to have further time to redeem from the other sales; that the plaintiff had secretly and fraudulently obtained the tax deeds; that the sale and deeds were void, because of sale in gross, and other specified causes; they also set up a claim to a dower interest and rent thereof in the E. % of S. E. i of section 16, in same township and range. They ask for an accounting, and that they be permitted to redeem, etc. The plaintiff denies the allegations of the cross petition. Upon the trial of the equitable issues to the court below, a judgment was rendered for the plaintiff for the possession of the property and costs. The defendants appeal.</p> <p>The treasurer’s tax deed conveyed to the purchaser an original; new, and independent title, divesting every other title. (Crum v. Clotting, 22 Iowa, 411; Eev., Sec. 784; Code, Sec. 897.) The fact that the land sold for taxes was assessed in the name of the father of one of the defendants, after his death, will not invalidate the sale. He was the owner of record, no partition at the time having been made.</p> <p>There was no law in force at the time, directing the assessor to assess lands belonging to resident and known owners in the smallest congressional subdivision. If he was not required to so assess, then the treasurer would not be required so to sell. The acts of the assessor not required by law could not be used to invalidate.br set aside the treasurer’s deed. We maintain that a deed reciting a sale in gross is not therefore necessarily void. It may be so, or not, according to testimony. The treasurer may be introduced as a witness to show that the land was sold in parcels, or, if 'the deed shows a sale in parcels, he may be introduced to show that in fact it was sold in bulk. (Gray v. Goan, 30 Iowa, 536; Hurley v. Street, 29 Iowa, 429). The treasurer also has the right to make a second deed, making it conform to the facts. See Mcdrady v. Sexton et al,, 29 Iowa, 356.</p> <p>The principal question of law presented by appellants is, “Whether the tax deed of 1865 was cured by the statute of limitations,” that is, will the statute of limitations cure a sale in mass ?</p> <p>The statute was made expressly for the purpose of curing such defects and irregularities. That it will do so is, beyond question, decided by this court in the case of Thomas v, Stickle, 32 Iowa, 71, and authorities cited.</p> <p>A tax deed upon land lying in different sections, assessed and valued in separate parcels, and sold in bulk for a gross sum, is invalid.</p> <p>When lands are assessed and sold without any definite description, the tax deed is invalid.</p> <p>The plaintiff having purchased the certificate of tax sale for the benefit of the owner, his tax deed should be cancelled. -</p>

At the March term, 1873, of the District Court, the defendant was indicted for the crime of robbery, committed by the use of dangerous and deadly weapons upon the person of one John Hamilton, putting him in fear and taking from him the sum of ten dollars, on the eighteenth day of August, 1870, in Fremont county, Iowa. No question is made upon the sufficiency of the indictment, requiring it to be set out at length.

The plaintiff claims $640 and interest, and the foreclosure of a mortgage upon one hundred and sixty acres of land.

A. Bruce and Brown & Hanson, in separate actions in the Circuit Court of Lee county, recovered judgments against the Keokuk & Northern Railroad Company. Upon these judgments garnishment proceedings were instituted against Bower, Creasap and others. Upon the report of the referee, who took the answer of the garnishees, judgment was rendered against all of them, except Bower, for an amount equal to the claims of the plaintiffs in the respective judgments.

Action at law to recover the damages sustained by plaintiff by reason of the location of defendant’s railroad over his land. The defendant filed an equitable cross-petition alleging that plaintiff had executed to another railroad company, with whieh defendant had afterward become consolidated, a bond obligating himself to convey the right of way over his land in consideration of the location of the railroad thereon, and the payment of one dollar.

On the 9th day of August, 1873, an indictment was presented against the defendant, for the crime of burglary. In August, 1874, on a trial before the court and a jury, he was found guilty and sentenced to three years’ imprisonment in the penitentiary, and adj udged to pay the costs of prosecution. Erom this judgment he appeals to this court. What is to be deemed recent possession depends largely upon the character of the property. No inflexible rule can be applied.

At the October election, 1874, these parties were competing candidates for the office of clerk of Boone county. According to the returns from the several election precincts, Livingston received ten hundred and ninety-seven votes, and McIntosh received tern hundred and eighty-four votes, Livingston’s majority being thirteen votes. A certificate of election was accordingly given to Livingston.

The plaintiff alleges in his petition that the defendant committed a trespass upon his property, by digging and removing a large quantity of coal belonging to him. He avers that he sold and conveyed the land, but that he reserved or excepted the coal thereunder for his own use. The petition asks a judgment for damages and also an injunction to restrain further trespasses. The answer is a general denial, and pleads the statute of limitations.

The plaintiff in his petition avers the injury, the negligence by defendant’s employes, and the exercise of care by the plaintiff. The defendant in its answer denies the averments of the petition. Upon a jury trial there was a verdict and judgment for the plaintiff, for eleven thousand dollars. The defendant appeals.

At the April term, 1873, of the Blackbawk District Court, the defendants, Mary Stickley and Elmira Stickley, were jointly indicted with Richard George, for an assault with intent to murder one Byron Wright. Mary Stickley is the mother of Elmira, who, at the time of the commission of the offense charged, was about sixteen years old. Richard George was in the employment of Mary Stickley, and boarded and lodged at her house.

Plaintiff, who is the widow of John Mock, deceased, filed her petition in this case, setting out that her late husband died seized of certain lands described therein, and asking that her interest in such real estate, as the widow of decedent, be admeasured and set apart to her.

/ This action is' brought to recover the value of four cases of boots, delivered by plaintiff’s agents to defendant, a common carrier, at Hartford, Oonn., to be transported by said defendant to Des Moines, Iowa. The plaintiff alleges the acceptance of the goods, an agreement to carry, and the failure to deliver, and claims the value thereof — $220.38.

Action in chancery to set aside an administrator’s sale and deed of certain lands of which Abner Eisher died seized; the plaintiffs are his widow and heirs, and the petition prays that the title to the lands may be quieted in them. Upon a trial on the merits the District Court dismissed plaintiffs’petition; they now appeal to this court. The facts involved in the points ruled are found in the opinion.

<p>1. Administrator: sale by: application. An application by an executor for an order to sell the real estate of a decedent must be made within eighteen months from the time when he gives notice of his appointment, unless the circumstances of the case would justify a court of equity in making an exception to the rule, in which case the application should be made within a reasonable time.</p> <p>2. -: -: rule applied. An application for an order to sell real estate by an administrator de bonis non, thirteen years after the executor had given notice of his appointment, was not made within a reasonable time, and the order was properly refused.</p>

This case is intimately connected with the preceding one and involves many of the same facts. The petition was filed September 22, -1873. It alleges the death of Tasker in 1859, leaving his widow in possession of their homestead on lot 3, block 70, and that lot 2 was’partly used as a yard thereto. That lot 1 and part of lot 2 was occupied with a tenement house. That plaintiff was appointed administrator, and the debts exceed $5,000.

The defendants are the directors of the Independent School District of Eldon, and the action is in chancery to enjoin them from issuing certain bonds of the district for the purpose of borrowing money to be used in building a school house. A preliminary injunction-was issued upon the petition, without notice to the defendants.

This action was brought upon a subscription made by the defendant, in aid of plaintiff’s railroad. Under the instructions of the court a verdict was rendered for defendant, upon which the court rendered judgment against the plaintiff for costs. Plaintiff appeals. 1. The contract should receive a rational and just construction. The comprehensive rather than the restricted interpretation should obtain. 2.

The plaintiff claims of defendant $100, which she alleges is due her, by agreement, as her share of the estate of Rachel Moffatt, deceased. Defendant admits there is due plaintiff the sum of $35.08, for which sum he offered in his answer to confess judgment. The case was transferred to the chancery docket, and was tried as a chancery cause. The court rendered judgment for plaintiff for $35.08 and costs. Plaintiff appeals. The facts are stated in the opinion.

<p> Appeal from Polh District Gom't. </p> <p>The petition alleges that plaintiff is the owner of the north half of the northwest quarter, and the northwest quarter of the northeast quarter of section 21, township 79, range 23, the same being a part of the grant to the State of Iowa, by Act of Congress of the United States, of August 8,1846, for the improvement of the navigation of the Des Moines river, and that defendants claim title to said land under and by virtue of an alleged patent issued to the defendant, William Cooper, by the government of the United States, after the lands were sold to plaintiff by the State of Iowa. The petition prays that this patent, and the subsequent conveyances thereunder, may be cancelled. The court dismissed the petition. Plaintiff appeals.</p> <p>The land in controversy, being within five miles of the Des Moines river, not above the mouth of the Raccoon Fork and in an odd section, became the absolute property of the state when the commissioners of the state had made their selection. The certificate of the department was not necessary to the validity of the title, and a refusal to grant it, or a permission to private individuals to enter the lands, could not deprive the state of its rights. (Fremont and Mills Cos. v. JB. <& M. R. R. Co., 22 Iowa, 93; Id. v. Id., 9 Wal., 89; Railroad Co. v. Smith, 9 Wal., 97.) This action is not barred by the statute of limitations. (D. M. Nov. Co. v. Rolle Co., 10 Iowa, 2; County of Des Moines v. Marker, 34 Id., 34; Bellows v. Todd, 39 Id., 209.)</p> <p>The state having permitted the government to offer, and the defendant to purchase, the land in controversy, without objection or protest, its grantee is estopped from claiming that the land is embraced in the grant of 1846. {Carver v. Jackson, 4 Peters, 1; Com. v. Pejepscut Props., 10 Mass., 155; Com. v. Heirs of Andre <& Billon, 3 Pick., 224, citing 4 Binney, 231, Stearns on Real-Actions, 179, 10 Mass., 200; Vermont v. Society for Prop, of the Gospel, 2 Pa., 546; Nieto’s Heirs v. Carpenter, 7 Cal., 527; Magee v. Hallett, 22 Ala., 699; Bigelow on Estoppel, 276; Lucas v. Hart, 5 Iowa, 416; Gardner v. Ladue, 47 111., 211.) Selection of the lands by the agent of the state, and approval by the Secretary of the Treasury, were necessary to divest the United States of its title, and the grant did not attach until these conditions had been complied with. {Lessieur v. Price, 12 How., 76; Williams v. Baker, 17 Wal., 146.) No reservation or appropriation can .be made of land after preemption by a citizen. (15 Pet., 407.) This right cannot be impaired by a subsequent grant.. (24 How., 394; 1 Black., 132.)</p>

Action upon an account, the principal items of which are for services alleged to- have been rendered under special agreements as to the amounts to be paid plaintiff therefor. The action was commenced before a justice of the peace, and judgment rendered for plaintiff. Upon an appeal to the Circuit Court a like judgment upon a verdict was had, from which defendants appeal.

<p> Appeal from Clay District Oourt. </p> <p>This is an action upon a policy of insurance made by the defendant to the plaintiff, upon its two story brick court house, the furniture, books and stationery therein, to the aggregate amount of three thousand dollars. The policy was for five years, and was issued June 10th, 1869, in consideration of the cash premium of $127.50 then paid; and the loss occurred November 21st, 1871. The policy was made upon an application by Philip Doughty, chairman of the Board of Supervisors, by order of the board, and the policy provided that such application should be considered a part of the contract and a warranty by the assured, aud also provided that if any portion of the premises should be used so as to increase the risk, without the assent of the secretary of the company indorsed on the policy, then in such case the policy should be void. The application specified that the number of stoves used in the building was four, and that the lower story of tlie building was occupied by offices and tbe upper story for a ball.</p> <p>Tbe defendant, for answer, averred the false representations in the application as to the purposes for which the different stories were occupied; that in fact the lower story was occupied for other than offices, and the upper story was occupied for the purposes of a school; and, also, after the issuance of the policy, said court house was occupied for a drug store, for a doctor’s office, for the storage of agricultural implements and grain, and for sleeping apartments in the lower story, and for schools by day and by night, and for public meetings in the upper story, and had more than four stoves; that by reason of such occupancy the risk was greatly increased; that such occupancy was given, had and continued without the knowledge or consent of the defendants or their secretary; that the destruction of said property was occasioned by the gross negligence of the plaintiff, and that plaintiff has not produced the stipulated proof required by the policy.</p> <p>The cause was tried to a jury and resulted in a verdict and judgment for plaintiff for $2,600, and costs. The defendant appeals.</p> <p>Proofs of loss, as required by the policy, must he furnished before action can be maintained. {Roper v. London, 102 Eng. O. L., 285 \ Mason v. Harvey, 8 Wei. & Hurl. & Gord. Exch., 819; Welcome v. People's Eq. Mut. Fire Ins. Co., 2 Gray, 480; Hodgkins v. Mont. Co. Mut. Ins. Go., 34 Barb., 213; Blakely v. Phenix Ins. Co., 20 Wis., 205; Keenan v. Mo. State Mut. Ins. Co., 12 Iowa, 126.) The mere fact that no objection was made to the certificate does not amount to a waiver of defects. {Ryder v. Mo. State Mut. Ins., Co., 12 Iowa, 126.) An instruction irrelevant or inapplicable to the facts should not be given. ( Veaeh v. Thompson, 15 Iowa, 380; Shaw v. Brown, 13 Id., 512.) Where an agent had only authority to receive or forward applications, notice to or knowledge by him was not notice to the company. ( Tose v. Eagle Life Ins. Go., 6 C'nsli., 42.) An agent without authority to issue policies is the agent of the insured, for whose mistakes of fact he is responsible. ( Wilson v. Conway Ins. Go., 4 R. I., 141.) Mere knowledge by an agent of facts which would avoid a policy issued by his principal, without objecting thereto, will not bind the company. (Ayres v. Hartford Fvre Ins. Go., 17 Iowa, 176.) Plaintiff should have shown that the certificate was made by one not interested in the loss as creditor or otherwise. (Franklin Fvre Ins. Go. v. Hamill, 6 Gill, 87.) The knowledge an officer or agent acquires by rumor or information in his individual capacity is not notice to the company. (Keenan v. Mo. State Mut. Ins. Co., suprai) The insurer has a right to exact a. literal compliance with the terms of the policy. (Sayles v. F. W. Ins. Co., 2 Curtis, (U. S.,) 612; Qendale Woolen Co. v. Protection Ins. Co., 21 Conn., 19; Wetherell v. Maine Ins. Co., 49 Me., 200.) Warranties cannot be deviated from, whether material or immaterial. {Stout v. City Fire Ins. Co.,V2t Iowa, 371; Wall v. Howard Ins. Go., 14 Barb., 383; Ripley v. Etna Ins. Co., 30 N. Y-, 136.) An inquiry by an insurer is an admission that the matter inquired about is material, and the question of its materiality cannot be submitted to the jury. ( Wilson v. Conway Ins. Co-, 4 R. I., 141.) Where an agent has only authority to receive and forward applications, statements made to him but not inserted in the application are not notice to the company. {Ayres v. Home Ins. Co., 21 Iowa, 185; Anson v. Winneshiek Ins. Co., 23 Id., 84; Chaffe v. Ins. Co., 18 N. Y, 376.) • Knowledge by the agent of the falsity of a warranty made by the assured will not relieve the latter from the consequences of the breach. {Jennings v. Chenango Mut. Ins. Co., 2 Denio, 75; Brown v. Cattaraugus Mut. Ins. Co., 18 N. Y., 387.) The contract that change in the risk shall avoid the policy, is a valid and binding one.' (Watrous v. Miss. Valley Ins. Co., 35 Iowa, 382.) Any increase of risk, after the issuance of the policy, which is caused or permitted by the insured, will render the policy void. {Dodge Co. Mut. Ins. Co. v. Rogers, 12 Wis., 337; Gardiner v. Ins. Co., 38 Me., 439; Kern v. Ins. Co., 40 Mo., 19; Evans v. Ins. Co., 9 Allen, 329; Francis v. Ins. Co., 1 Dutcher, 78; Allen v. Ins. Co., 2 Md., 111; Mtirdock v. Ins. Co., 2 N. Y. 210.)</p>

Appeal from Mahaska District Oourt. Action upon an account for goods and merchandise. There was a verdict and judgment for plaintiff. Defendant appeals.

On the seventh day of September, 1868, plaintiff filed as a claim against the estate of Miles Spafford, deceased, a writing in words and figures'as follows: “Waterloo, May 7, 1867. “For value received, I promise the Cedar Rajiids and St. Paul Railway, or order, four hundred dollars, payable as follows: Two hundred dollars on the first day of November, 1867, and two hundred dollars on the first day of December, 1867, or when the grading on said railway is completed from…

The petition of plaintiff claims one hundred and fifty dollars, on account of damages alleged to be done his fences and timber from a fire started by an engine on defendant’s road.The answer, amongst other defenses, alleged that in January, 1868, there was incorporated under the laws of the state of Iowa, a company known as the McGregor & Sioux City railway company. That during the year 1868 and 1869 said corporation constructed the road near which the injuries occurred.

The defendant was convicted at the May term, 1874, of the District Court of Pottawattamie county, for the crime of manslaughter, and sentenced to five years’ imprisonment in the penitentiary, from which judgment he appeals. Twelve of the grand jury must concur in the finding of a bill. (1 Chitty, Or. Law, 322-3; 1 Wharton Or.

The defendant was indicted for the crime of “ an assault with intent to commit murder.” He pleaded not guilty. Upon a trial before a jury he was found guilty of an assault with intent to commit the crime of manslaughter, and sentenced to imprisonment in the penitentiary for the term of eighteen months at hard labor. From this judgment he appeals to this court.

Action in chancery. There ivas a demurrer to the petition which was sustained. Plaintiffs appeal. The facts of the case appear in the opinion. Where a tribunal is clothed with discretion as to a particular matter, a court can by mandamus compel it to act, but cannot control its discretion in the performance of the act.

Action in chancery to set aside a tax title held by defendant on certain lands, against which plaintiff holds a decree foreclosing a mortgage, and for an accounting between the parties. There was a trial upon the merits and a decree was entered dismissing plaintiff’s petition; he now appeals to this court.

This is an action in equity, instituted by Mrs. Jane A. Stoddard against the heirs of her late husband, to set aside a certain written instrument executed by her, relinquishing all right and interest in her husband’s estate, both real and personal. Decree for plaintiff as prayed. Defendant appeals. The plaintiff is not a competent witness with reference to transactions between herself and husband, transpiring before his death.

On tbe 20th day of November, 1872, the plaintiffs, who are the heirs of Isaac Bealer, deceased, commenced this action to set aside a deed executed on the ,6th day of July, 1867, purporting to convey two hundred and twenty-three acres of land to Abraham Bealer.

On the 18th day of May, 1873, the plaintiff filed in the clerk’s office a petition asking a writ of certiorari, alleging that on the 3d day of March, 1873, a petition was presented to the auditor of said county, signed by George IT.

ircuit Oourt. Action at law to recover for injuries sustained by plaintiff, an employe of defendant, from negligence of his co-employes. The petition alleges that plaintiff was employed by defendant, and engaged in the work of tearing down and removing an old bridge across the Mississippi river, at Davenport.

■ This is an action in equity to set aside sheriff’s sales of forty acres of land.

Action to recover for personal injuries sustained by defendant from falling into a diteb dug across a sidewalk of the city with defendant’s consent and authority, and which was negligently left open without any protection from the dangers thereof, to those using the street. There was a verdict and judgment for plaintiff in the sum of $685. Defendant appeals.

This action is brought to recover of the defendant for an alleged arrest and assault of plaintiff by the employes of the defendant. Answer in general denial, and also as follows: “3d count.

This is an action to foreclose a mortgage executed by Charles Spangler, now deceased, securing a promissory note held by plaintiff. Mary Gaylord, widow of deceased, Morris Spangler, a minor and his only heir, Joseph Knadler, administrator of his estate, and David Johnson, who holds another note secured by the same mortgage, are made defendants. Service was had upon the widow by publication, and no appearance was made by her.

JBy decree of the Polk District Court, a foreclosure was ordered of a mortgage made by defendant to plaintiff, in October, 1864, and special execution was awarded.

This action is brought upon a judgment of a justice of the peace in St. Lawrence County, New York. The court sustained a demurrer to the petition, and the plaintiff refusing to amend, judgment for costs was rendered for the defendant. Plaintiff appeals. The further facts appear in the opinion.

<p> Appeal from Dubuque District Court. </p> <p>Plaintiff alleges that on the 13th day of April, 1872, he was in the employment of defendants, who were partners, mining in certain lead mines in Dubuque county, and receiving wages at the rate of two dollars a day. That on that day the defendants, at the suit of one Jaeger and’ others, were enjoined from further prosecuting their mining operations. That the defendants requested plaintiff not to engage in work elsewhere, but to hold himself in readiness to work for defendants at the first moment they should be able to resume work, and promised to continue the payment of him, during the time he should so hold himself in readiness.- That plaintiff, relying upon the promises of defendants, did hold himself in readiness to resume work, and refrained from making engagements elsewhere, from the 13th of April to the 1st day of September, 1872, during which time defendants did not succeed in resuming the prosecution of said work. That defendants have refused to pay plaintiff for said time. Plaintiff asks judgment for the sum of $240.00. The defendants deny the allegations of the petition, and allege that during t-he time named in the petition plaintiff engaged in work for other parties on his own account, without notifying defendants, and without their consent.</p> <p>There was a jury trial, and a verdict and judgment for plaintiff for $99.19. Defendants appeal.</p>

<p> Appeal from, Woodbury District Court. </p> <p>This is a suit in equity, brought by the plaintiff to quiet his title to the undivided half of the S. W. ■£, and S. W. i of N. W. i of Sec. 20, and the N. W. J, and N. W. J- of N. E. of Sec. 29, T. 88, R. 47, in Woodbury county. The plaintiff avers that he is the owner in fee of said undivided half, and that the defendant claimed title to the same under a tax sale and deed, which sale and deed the plaintiff averred were void, for reasons specified at length. The defendant denied the allegations that the sale and deed under which lie claimed were void, and averred that the sale was regular, and the deed valid; the defendant also pleaded the statute of limitations. The cause was tried by the court, and a decree rendered for plaintiff as-prayed. The defendant appeals. The further necessary facts are stated in the opinion.</p> <p>■ A tax deed is conclusive evidence that the assessments, levies and sale were regularly, conducted, but as to the facts of assessment, levy and sale, is only prima facie evidence. (Code, § 897; MoGready v. Sexton db Son, 29 Iowa, 356; 'Bulkley v.Gall aman, 32 Id., 464; Ware v. Little, 35 Id., 234.) The fact of assignment and levy being admitted, the deed is conclusive of the method of the assessment and levy. (Thomas v. Stickle, 32 Iowa, 71; Ware v. Little, supra'.) Words giving joint authority to three or more public officers are to be construed as giving such authority to a majority of them, unless it be otherwise limited. (Code, §45; Rev., § 29; Code of 1851, § 26.) The tax deed being recorded December, 1865, and this action commenced October, 1873, it is barred by the statute of limitation. (Eldridge v. Kuehl, 27 Iowa, 173; Douglas v. Tulloek, 34 Id., 262; Pillow v. Roberts, 13 How., 472.) The indexing by writing the numbers of the section, township, and range, referring to the record for full description, imparts constructive notice. (Hodgson v. Lovell, 25 Iowa, 97.) The warrant is not essential to a valid exercise of the taxing power. (O. R. db M. R.R. Go.v. Garroll Go., 153 inf ral) The treasurer’s deed is conclusive evidence of compliance with the statute, both as to the tax warrant, and due notice and publication. [Hurley v. Powell, Levy db Go., 31 Iowa, 66.) Four contiguous quarter sections may properly be called a tract. (Martin v. Gole, 38 Iowa, 141.)</p> <p>The inability of the county judge to act as a member of the equalization board should appear of record, and the authority of one acting in his behalf should also appear to give his acts validity. (Burlingt n University v. Ex'rs of Stewart, 12 Iowa, 442; Musoatine v. Steak, 7 Id., 505.) Where joint authority is conferred upon three or more, all must participate in the action, or have an opportunity of doing so to render it valid. .{Peay v. Sahenok da Bliss, 1 Woolworth, 189; Oakley v. ■Aspinwall, 3 N. Y., 565.) Land must be sold as assessed. (Ware v. Thompson, 20 Iowa, 65; Oorbin v. De Wolf, 25 Id., 124; Stewart v'. Oorbin, Id., 143.) Where the land is sold in gross the deed is void. [Harper v. Sexton, 22 Iowa, éé2; 'Ackley v. Sexton, 24 Id., 320.) The index must contain grantor’s name and description of the property, to impart notice. {Stewart v. Huff, 19 Iowa, 55.) A purchaser at .tax sale having no actual notice of an adverse claim, will be protected against it. {Burtts v. GooTc c6 Sargent, 16 Iowa, 194; Isett dc Brewster v. lucas 17 Id., 503.) The recitals in a tax deed are not conclusive as to the validity of assessment and sale. {McNamara v. Estes, 22 Iowa, 248 \ McGready v. Sexton, 29 Id., 356; Oorbin v. Hill, 21 Id., 70.)</p>

The plaintiff, in substance, avers tbat in the month of •June, 1868, by a verbal contract, he agreed to sell to James H. Haven lots number sixty-five and sixty-six in the village of Dyersville for $650, $325 of which was to be paid then in cash, and $325 was to be paid in one year from the time of making the contract, and was to be evidenced by the promissory note of James IT. Haven, bearing interest at the rate of eight per cent, per annum.

Action at law to recover damages sustained by plaintiffs on account of defendant wrongfully filling up a slough or arm of the Mississippi river upon which a slaughter and pork house, owned by plaintiffs, is situated. There was a verdict and judgment for plaintiffs; defendant appeals. The facts of 'the case appear in the opinion. The following cases correctly state the law respecting the rights of riparian owners: Angelí on Water Courses, §41; Railroad v. Stevens, 10 Am.

Action of trespass for taking goods and merchandise claimed by plaintiff.

This action was commenced July 15tb, 1873, to recover the possession of the north-west quarter of the north-east quarter of section 15, township 78, range 44 west, of 5th P. M. The plaintiff avers its ownership in fee and its right to immediate possession of the property in controversy.

This is an action to recover the value of a trunk and contents alleged to have been lost whilst in the possession of defendant as a carrier. There was a jury trial, and a verdict and judgment for plaintiff for $400. Defendant appeals. The case was before us on a former occasion. See 38 Iowa, 100. Actual delivery, even when sanctioned bj7 custom and the understanding of the parties, must be accompanied by express notice, to charge the carrier.

The plaintiff alleges that in November, 1871, her horse fell into a deep and dangerous water ditch, in the streets of defendant, which was negligently permitted to remain open, uncovered, and in ‘a dangerous condition. On account of the injury inflicted, she claims two hundred dollars damages. The answer denies all the allegations of the petition.

This is an action for the possession of a strip of land one hundred feet wide, lying upon each side of the center line of the track of the Burlington & Southwestern Railway, through the 'north half of section thirty-one, township sixty-eight north, range seventeen, in Appanoose county. The petition alleges that plaintiff is the owner of said land, and that defendants wrongfully keep him out of possession.

Defendant was arrested upon an information charging him with the offense of assault and.battery, and brought before a, justice other than the one issuing the warrant. Upon an affidavit for a change of venue the cause was sent back to the first justice, who, being unable to try the cause, sent it to a third justice; all of these justices were of the county in which the offense was committed.

- ■ Defendant was indicted for the murder of William Barlow, and was convicted of manslaughter. He now appeals to this court. The facts of the case, so far as they are involved in, the points of law decided by the court, are found in the opinion. Afiidavits of jurors may be considered when they show misconduct of the jury in finding the verdict, as in considering evidence not properly before them. (Stewart v. B. <&. M. It.

<p>1. Criminal Law: nuisance: intoxicating liquors. The finding of intoxicating liquors in any other building than one used as a private dwelling, affords-presumptive evidence that they are kept by the owner for sale, and will support an indictment for “keeping and maintaining a house for selling intoxicatingliquors.”</p> <p>’ The defendant and another were indicted and defendant ■was convicted of the crime of keeping a nuisance by using and maintaining a building for the purpose of keeping and selling intoxicating liquors contrary-to law. He appeals to this court. The facts of the case are found in the opinion.</p>

. This action was brought by plaintiff to recover damages on account of his having been unlawfully expelled from the cars of defendant after having taken .passage thereon. There was a verdict and judgment for defendant;plaintiff appeals. The facts of the case appear in the opinion. • The delivery of the ticket to plaintiff on the receipt of money therefor constituted a contract obligating defendant to carry the plaintiff to the point designated by the ticket. (13 Am.

Action to quiet title to lands belonging to tbe estate of which the plaintiffs are executors. There was a decree granting the relief prayed for in the petition. Defendants appeal. The opinion of the court contains a statement of the pleadings and the facts of the case. An executor cannot maintain an action to set aside a tax deed, in the absence of authority conferred by the will. (Lawertyv.

Action in equity to quiet plaintiff’s title to certain real estate in Lee County, Iowa, which, plaintiff claims under a tax sale and deed for the delinquent taxes of 1869, the said deed describing the land conveyed as the southeast corner of the northeast quarter of section 21, in township 65, north, range 5 west, being six acres.

The plaintiff filed in the Jasper Circuit Court his petition and amendment thereto, the material portion of which, alleges that on the 11th day of Septembei’, 1874, the Chicago, Rock. Island & Pacific Railroad Company claimed to own certain swamp lands, of which a list is set out in the petition, and that the title was in dispute between the defendant and the county of Jasper, which had brought a suit to quiet the title.

The plaintiffs state in their petition-: 1st. That on or about December 27th, 1871, defendant sold to plaintiffs his drug store in Toledo, Iowa, upon a written contract of sale, in which, among the other things, the defend-' ant agreed, as a part of the consideration of said sale, that he would not again enter or go into the same branch of business for himself ot others, in the said town of Toledo, without the consent of plaintiffs, and that he would give his influence and…

Action in Chancery. The petition alleges tbat defendant, W. C. Shockley, is the administrator of the estate of Peter Oleson, deceased, and that the other defendants are the widow and heirs of decedent; that plaintiff holds a mortgage executed by Able Oleson in his life, upon certain lands which, since his death, has been foreclosed and judgment rendered against the defendants who were parties to the foreclosure proceedings and thereon the land, covered by the mortgage, was…

The plaintiff, Dubuque County, filed its petition for the purpose of obtaining a cancellation of certain conveyances which were fraudulently made by Bridget Beynolds to her son Bernard Beynolds, and alleging that she is incurably insane and likely to become a charge upon the county. The defendants filed an answer denying generally each-;and every allegation of the petition. Subsequently they filed an amended answer and cross petition.

Action to recover damages sustained by plaintiff on account of an incorrect telegraphic report of the price of wheat in Chicago sent him under a contract with defendant to furnish daily reports of the market at that city. The cause was submitted to the court without a jury and, upon a finding of facts, judgment was rendered for plaintiff in the sum of $1614 45-100. Defendant appeals. The facts of the case appear in the opinion.

Action to foreclose a mortgage executed by defendant Rice to C. H. Elliott, to secure a promissory note for $1250. Elliott indorsed the note to plaintiff, but prior to this Bird executed a note to plaintiff for $308.35, under the following circumstances: Elliott was indebted to plaintiff in the sum of $308.35 and the note of Bird for that amount was given in payment of that indebtedness.

Action to foreclose a mortgage executed by defendant, to secure liis promissory note payable to plaintiff. There was a decree for plaintiff granting the relief claimed in the petition. Defendant appeals. The facts of the case are stated in the opinion. The mere possession of a promissory note, in the absence of indorsement or assignment, is prima facie evidence of ownership, and the holder may maintain an action thereon.

This is a suit commenced to set aside a tax deed for tbe N. E. of N. E. £ of Sec. 13, township 77, range 35 West, containing 40 acres.

On the 10th day of January, 1871, Henry Anderson, jr., being indebted to Low Bros. & Co. upon a book account in the sum of $1,925, Henry Anderson and Frances Ander,son, his father and mother, executed their joint and several promissory note, on account of said indebtedness to plaintiff, for said sum, one-half payable six months, and one-half twelve months from date, with' ten per cent per annum interest.

The plaintiffs allege that on the 21st of November, 1873, they sold one D. A. Hills, at Chicago, Illinois, a bill of goods amounting to $143,20, on the faith and credit of a certain writing executed by the defendant as follows: “Mr. D. A. Hills, the bearer, wishing to purchase 1 case of tobacco on credit, I hereby agree to see the same paid for in four months, should said purchase be made.

Plaintiff alleges that in 1865 Edward Evans departed this life seized in fee simple of certain real estate described. That he was never married, and his only legal heirs were a brother and three sisters, to-wit: Mary Brown, the plaintiff, Moses Evans, Anna Woods, and Jane Pearson, the defendant. That Jane Pearson claims that upon the death of Edward Evans she became the sole owner of said land, and that she has sold portions of it to the other defendants.

Plaintiff alleges that on the 13th of August, 1874, a train of defendant ran over two mares of plaintiff, killing one and injuring the other, at a point where defendants had a right to fence, and where they carelessly and negligently permitted the fence to get out of repair. That plaintiff served due notice of the loss, and more than thirty days have since elapsed without payment. Plaintiff claims double damages in the sum of $400.

On tbe llfcli day of June, 1874, an instrument-of writing, purporting to be tbe last will and testament of Jane Murpby, deceased, was filed in the office of tbe clerk of tbe Circuit Court of Appanoose county, and tbe clerk thereupon fixed a day for tbe proof of the execution of said will, and caused to be published due notice thereof.

The appellant was garnished as the debtor of Gr. D. Crosthwait, against whom plaintiff had recovered a judgment upon which the garnishment process issued. Upon his answer and evidence judgment was rendered against him. The issues raised by his answer were tried to the court without a jury. The other facts of the case appear in the opinion.

■ Action upon a warrant drawn by the proper officers of defendant upon its treasurer. The cause was submitted to tbe Circuit Oourt upon an agreed statement of facts, and judgment rendered for plaintiff. Defendant appeals. All persons are bound to take notice of the authority conferred by law upon the officers of a municipal corporation, and are presumed to. make contracts with them with reference to such authority.

<p> Appeal from Jackson District Court. </p> <p>On tbe 20tb day of November, 1873, plaintiffs filed their petition alleging that in September, .1856, in the District Court of Jackson County, one Jonas Clark recovered a judgment against the defendant for the sum of one hundred and sixty dollars, and that on the 6th day of July, 1866, Jonas Clark assigned the judgment t.o plaintiffs.</p> <p>. Plaintiffs claim that there is due them on said judgment the sum of four hundred and thirty-six dollars.</p> <p>The defendant denies that he owes the amount claimed, and alleges that he was never served with notice, either by publication or in person, in the cause in which said judgment was rendered, and that he did not appear either in person or by attorney.</p> <p>The judgment entry in said cause is as follows: “Now on this day, to-wit: the.. day of September, A. D., 1856, comes the plaintiff, and the defendant being three times called comes not, but made default. And it appearing that this action is founded upon a promissory note, the same was referred to the clerk to assess the damages thereon, and who reported the same to be one hundred and sixty dollars, which report was approved by the court. It is, therefore, considered that the plaintiff have and recover of defendant the sum of one hundred and sixty dollars damages, and costs of said suit, taxed at $____, and that execution issue therefor.”</p> <p>The return upon the original notice is as follows: “ Served the within notice on the within named Marquis Little, by leaving a true and correct copy of the original notice, certified to by me, with a member of his family over 14 years, on the 28th day of August, 1856.”</p> <p>The defendant testified that he never was served with notice of the action; that he did not appear in person or by attorney, and that he did not know suit had been commenced against him until about three years ago.</p> <p>This being all the testimony offered in relation to the judgment, the court held that no service had been made on defendant in the action in which, the judgment sued on was rendered, and dismissed plaintiffs’ petition, and rendered judgment in favor of defendant, on his cross demand, for the sum of fifteen dollars. Plaintiffs appeal.</p> <p>A service and levy have been presumed where there was no return upon the writ. (Dollarhide v. Muscatine Go., 1 G. Greene, 159; Ford v. Walworth, 19 Wend., 337.) The presumption is that when a notice has been served, the officer served it properly and a fact will not be presumed which will tend to invalidate the proceedings of a court of general jurisdiction. {Baker v. Ghajylime, 12 Iowa, 206; Seeley v. Reid, 3 G. Greene, 274.) If the District Court determine in favor of its own jurisdiction, the parties are thereby concluded, unless they appeal from the judgment. {Shawhan v. Loffer, 24 Iowa, 226; Wright v. Marsh, 2 G. Greene, 111.) Equity will not interfere to vacate or set aside a judgment unless the bill shows that it was obtained by fraud or collusion, or the record discloses that the court had no jurisdiction over the subject matter, or had acquired no jurisdiction over the person. (Newcomb v. Dewey, 27 Iowa, 386; Stone v. Sherry, 31 Id., 582.)</p> <p>Where the statute provides for any other than personal service, it must be strictly complied with. (Domain v. Commissioners, etc., Morris, 359; Chittenden v. Hobbs, 9 Iowa, 418; Brogland v. Same, 18 111, 552; Cost v. Bose, 17 111., 276; Hodgés v. Brett, 4 G-. Greene, 345; Harris v. Hardeman, 14 How., 334; Milburn v. Fronts, 4 G. Greene, 345.) Where' there has been no service of notice, the judgment is absolutely void and may be attacked collaterally. (Lyon v: Yanatta, 35 Iowa, 556; Kitsmiller v. Kitchen,24 Id., 163; 1 Smith’s Lead. Oases, 834.) If there was no jurisdiction a simple failure to appeal would not confer it. (Ham v. Steamboat Hamburg, 2 Iowa, 461.) Without jurisdiction of the person, the judgment is void. {Harshey v. Blachmarr, 20 Iowa, 162.)</p>

Oov/rt. The petition alleges that the city of Decorah was incorporated as a city of the second class in 1871, and that previous to that time it claimed to be an incorporated town, having been incorporated inT857. That the defendant, S. B. Ervin,' is the street commissioner and marshal.

This action was commenced October 7, 1873, against the. maker and indorsers of a promissory note, of which the following is a copy.: “$2,000. Oskaloosa; Iowa, November 2,1871. One year after date, I promise to pay W. M. Watts, or bearer, two thousand dollars, for value received, with ten per cent from maturity, payable at Oskaloosa,” duly signed by Lawrence Dingman, and indorsed in blank by Craig & Alexander.

The petition states that the plaintiffs, as the firm of Norris & 'Cochran, purchased of defendant the grain elevator at Prairie City, and in consideration thereof, and of-his good will in the grain business at said place, and of his agreement to go' out of the grain and produce business at said place, they paid defendant down $1,000, and executed their notes for $1,800, secured by a chattel mortgage on the elevator.

The plaintiffs filed tbeir petition claiming of appellants, and one Jeremiah Hankins the sum of $313.13, and the.further sum of $60.00 attorneys’ fees, as money due on four promissory notes executed by appellants and Hankins, payable to the order of plaintiffs.

This is an action upon -a written guaranty of defendants, to recover the amount of certain drafts drawn by Gibbs & Coates'on H. S. Stibbs and negotiated to plaintiff. Upon a jury trial there was a verdict and judgment for the plaintiff. Defendants appeal. Letters of credit and commercial guarantees are not negotiable when addressed to a particular person; the rule is otherwise when the address is general.

<p> Appeal from Pocahontas Circuit Court. </p> <p>The plaintiff filed in the office of a justice of the peace of Bellville township, Pocahontas county, a petition alleging that he is justly entitled to the possession of a certain colt of the value of forty dollars, and praying a judgment for the return of the property, or the value thereof, and for fifty dollars damages for detention.</p> <p>An original notice was issued which was served in Lizard township, Pocahontas county. On the appearance day the defendant filed a plea in abatement, alleging that the court has no jurisdiction of the cause for the following reasons: “Neither of the pai’ties hereto reside in the township where the action is brought, nor did either of them so reside at the time of the commencement of this action. No part of the property sought to be recovered herein was found in said township at the time of the commencement of this action.</p> <p>Service was not had upon the defendant within the township where this action was commenced. At the time of the commencement of this action all the parties hereto resided in the state of Iowa. His action is not. founded on a contract for the payment of money at any particular place.”</p> <p>The plaintiff filed thereto the following reply: “That there is no justice of the peace in Lizard township, Pocahontas county, qualified to try the above entitled action.”</p> <p>Hpon this issue the cause came on for trial, and judgment was rendered in favor of plaintiff, for tlie return of the property, or thirty dollars, its value, and ten dollars damages.</p> <p>The defendant appealed to the Circuit Court. On the second day of the term of that court the defendant offered to amend his answer, alleging in substance that one August Meuneh was the owner of the property in controversy, and that the defendant, as an acting constable of Pocahontas county, levied upon the same under an execution duly issued by a justice of the peace of said county, -to satisfy a judgment recovered by Cole Bros, against the said August Meuneh. The court refused to allow this amendment. Upon the trial the plaintiff produced no evidence. The defendant proved that both he and plaintiff resided in Lizard township; that he took the property in controversy under an execution in Lizard township; that he had it there when this action was commenced; and that he has at no time had it out of said township; that the action was brought in Bellvill'e township, and the original notice was served in Lizard township; and that, at the time of the commencement of this action, William S. Westlake was, and for years had been a duly qualified and acting justice of the peace in the township of Lizard.</p> <p>Upon this testimony the court overruled the defendant’s plea in abatement and ordered judgment for plaintiff for the-return of the property, or for thirty dollars, its alleged value. Plaintiff appeals.</p> <p>An amendment should be permitted, where the same would tend to advance substantial justice. (GUch v. Hartman, 10 Iowa, 110; The State, etc., v. Oity of Keolmh, 18 Id., 388.) To allow amendments is the rule, not the exception. (Pride v. Wormwood, 27 Iowa, 257.) The statute contemplates the exercise of a liberal discretion in granting leave to amend. (Fulmer v. Fulmer, 22 Iowa, 231.) These principles apply as well to causes in the Circuit or District Court by appeal as to those commenced there. {JDunton v. Thorington, 15 Iowa, 217; Hettmah- v. Schramm, 23 Id,, 521; Warren v. Scott, 32 Id., 22.)</p>

The petition alleges in substance that defendant executed to plaintiff his promissory note for $7,307.79, and when-the same matured turned out in part payment thereof a note of the Central Railroad Company of Iowa, which plaintiff received at. the price of $5,461.79, leaving a balance due from defendant of $1,846.

This action was commenced, before a justice of tbe peace upon a draft, of which the following is a copy: “Cincinnati,-Ohio, Aug. 23, 1872. Ninety days after date, pay to the order of ourselves ninety-five dollars, value received, and charge' to account-of Mohr, Solomon & Mohr. To H. A. Zangs, Ottumwa, Iowa.

J., Dissolving On the 12th day of November, 1874, there was served on plaintiff a notice issued by E. W. Mitchell, a justice of the peace, as follows: “Ton are hereby notified that John Longhran claims of you three hundred dollars justly due from you on your promissory note, with ten per cent, attorneys’ fees thereon, and jurisdiction given in said note to any justice of the peace; and, unless you appear'at the office of E. W. Mitchell, a justice of the peace in and for…

Action by plaintiffs to establish against defendant their title to certain lands described in the petition. The defendant filed an answer to plaintiffs’ petition, and a cross-bill setting up its title to the lands, to which plaintiffs answered. To certain counts of the answer to this cross-bill, defendant demurred. The demurrer was overruled, and defendant appeals. Further facts of the case appear in the opinion.

At the August term, 1874, the grand jury presented the following indictment against the defendant: “The Grand Jury, in the county of Shelby, in the name and by the authority of the State of Iowa, accuse Peter Book of the crime of keeping a gambling house, committed as follows: For that the said Peter Book, on the first day of January, in the year of our Lord one thousand eight hundred and seventy-four, in the county aforesaid, and on divers other days between the first day…

Apjpeal from, Polls District Court. The parties to this suit filed in the Polk county District Court an agreed statement of facts, involving the amount of compensation to which plaintiff is entitled for certain services as sheriff of Polk county. The court found adversely to the claim of plaintiff. He appeals. The agreed statement of facts appear in the opinion in connection with the respective claims of plaintiff.

Action upon two promissory notes. As a defense to the action, defendant pleads that the notes were given for intoxicating liquors, which were sold by defendant with a knowledge of the laws of this state upon the subject, and with an intent to violate them, and to enable defendant to sell the liquors in this state in violation of law, and that the notes were transferred to plaintiff after maturity and without any valuable consideration.

This is an action to set aside a tax deed and to quiet plaintiff’s title to certain lands: The undisputed facts are as follows: One James Laverty entered the land in 1818, and in 1850 he conveyed it to the plaintiff, who is now, and for more than twenty years has been, in the open possession thereof.

This action wras commenced August 25, 1874, to recover four hundred and sixty-four dollars and sixty cents for toll alleged to be due the plaintiff, for the passage of the defendant’s engines and cars over a toll bridge owned by plaintiff, across the Raccoon river near the foot of Seventh street, in •the city of Des Moines. .The defendant denied the right of plaintiff to recover for any toll, and set up a grant by ordinance enacted by the plaintiff, granting to the Des…

The agreed statement submitted shows the following facts: “ On the 19th day of February, 1874, the grand jury of Scott county, Iowa, returned into the District Court of said county eight indictments, in due form of law, and each indictment charging the defendant, T. S. Egglesht, with uttering and publishing as true a false order with intent to defraud; and, also, eight other indictments for forgery.

On the 23d day of June, 1873, the following information was filed before H. Tuttle, a justice of the peace of Dubuque county: “ State of Iowa, Dubuque county, ss: The State oe Iowa' v. James Murray, and Patrick Murray. -Before H. Tuttle, justice of the peace. • The defendants are accused of the crime of assault, for that the defendants on the 2d day of June,-A. D., 1873, at the county of Dubuque, and State of Iowa, did willfully and maliciously assault one Bridget McCoy,…

<p>1. Estoppel: former adjudication: evidence. A judgment is conclusive as an estoppel only upon the parties or their privies, and the record of a former adjudication cannot be introduced to affect the rights of a stranger to the proceedings.</p> <p>2. Promissory Note: presumption in favor of holder. The holder of a note, who presents the same for payment, is presumed to be its legal owner.</p> <p>8.-: payment before maturity. No presumption • of want of lona fides will attach to the payment, before maturity, of a note which, by its terras, is made payable “ on or before” a certain, specified date.</p> <p>4. -: when the holder is. not the owner. Mere suspicion that the holder of a note is not the owner will not justify the maker in refusing payment; to exonerate him there must be circumstances amounting to clear proof that the possession is fraudulent.</p>

Defendant, with his wife, was indicted for keeping a house where intoxicating liquors were unlawfully sold, and drunkenness, fighting, etc., etc., were permitted. They were tried jointly, and defendant was alone convicted; he now appeals to this court.

The petition alleges that on the 28th of March, 1873, the defendant and her husband purchased of plaintiff a piano and spread, and paid at the purchase $150 cash, leaving due plaintiff, as part of the price agreed upon between him and the defendant, E. E. Felt, the sum of $239.80, for which sum E. E. Felt executed his promissory note jiayable in one-year, with interest at the rate of ten per cent, which note was taken as evidence of the indebtedness and not as payment.

Action in chancery to enforce the specific performance of a contract to convey lands. Upon a trial on the merits the petition of plaintiff was dismissed; he now appeals to this court.

At the April term, 1874, the grand jury presented to the District Court then in session in Polk county, the following indictment: “District Court of the County of Polk, State of Iowa: , The State oe Iowa against Isaao Brandt. Indictment for Embezzlement of Public Money.

Plaintiff brings this action for the partition of certain • real estate in which he claims to be the owner of the undivided two-thirds, and that the defendant, Triphena Brown, is the owner of the undivided one-third. The court rendered judgment that plaintiff was owner of an • undivided one-fourth, and the defendant of three-fourths. Plaintiff appeals. The facts of the case appear in the opinion.

On tbe 28th. day of April, 1871, the plaintiff, Julia R. Lloyd, filed in the 'Circuit Court of Cerro Gordo county' her petition claiming that she is the .owner and entitled to the immediate possession of lot number four, in block number seventeen, in Mason City, Cerro Gordo county, Iowa, per Paul Eelts’ plat. .

On the 8th day of August, 1874, the plaintiff sold and conveyed to the defendant eighty acres of land, upon which plaintiff .resided with his family, consisting of seven minor children. ■ On the 4th of September following, the plaintiff instituted this action to set aside the conveyance, and tendered to: defendant the property and notes which he had received as consideration for the transfer.

Action upon a written contract wherein defendants obligate themselves to do certain threshing for plaintiff. Parts of -the petition alleging grounds of special damages were stricken out on motion of defendants. From this ruling plaintiff appeals. The facts fully appear in the opinion. The question of negligence is to be determined by the jury.

This action was commenced April 22, 1874, under section 1550 of the Code, to recover money paid for intoxicating liquor sold in violation of law, in the years 1869 and 1870. The defendant demurred to the petition upon the ground that the action is for a statute penalty, and is barred by the statute of limitations because not brought within two years, under section 2529 of the Code. This demurrer was sustained and judgment was rendered for defendant for costs.

The plaintiff brings this action to recover damages for an assault and battery. There was a judgment for plaintiff from which defendant appeals. The facts of the case appear in the opinion.

Circuit Court. Action at law. There was a verdict and judgment for plaintiff. Defendants appeal. The facts of the case appear in the opinion. The possession of a note by an attorney or agent for collection does not authorize him to take a draft in absolute payment. (Graydon, Stanwich da Co. v. Patterson dá Co., 13 Iowa, 256.) It is the debtor’s duty to see that the agent has special authority to do what is not within the general scope of his authority.

Action at law. The cause was submitted to the court without a jury, and judgment rendered for plaintiff; defendant' appeals. The facts of the case sufficiently appear in the opinion,

<p>1. Damages: punitive mat be recovered. Punitive damages maybe recovered in a civil action for a wrongful act, notwithstanding the act constitutes an offense punishable under the criminal statutes.</p> <p>2. -: -: public good. The public good in the restraint of others from wrong-doing, as well as the punishment of the offender, is to be considered in estimating exemplary damages.</p> <p>3. -: -: instruction. An instruction that “ additional exemplary or vindictive damages may be allowed in any amount m your discretion, proper or necessary to restrain the defendant and others from the commission of like acts in the future, ’ ’ providing the verdict does not exceed the amount claimed, was %el<l to be correct.</p>

This action is brought to compel, by mandamus, the admission of the plaintiff — a colored boy — into one of the public schools of the city of Keokuk, which has been .denied him by the defendants. On a trial before the court, without a, jury, judgment was given for the plaintiff. Defendants appeals.

, The defendant was indicted for the crime of nuisance in obstructing “a certain public road and ancient highway” in Dubuque county. He was convicted and sentenced to pay a fine of ten dollars and costs, and to stand committed until -paid. Defendant appeals. . The use of a road by the public must be under a claim of a'ight to constitute it a.public highway by.prescription.