Volume 5 — Iowa Reports

This is a proceeding by certiorari, requiring tbe County Judge of Keokuk County, to return to the District Court, tbe facts attending an election held under tbe act entitled “An act in relation to County Seats,” approved January 22, 1855, and tbe removal of tbe County Seat of -that County from Lancaster to Sigourney, in pursuance of said election. Tbe return having been made, and tbe cause beard, tbe District Court affirmed tbe proceedings of tbe County Court.

<p> Appeal from the Johnson District Court. </p> <p>The County Judge of Cedar county, on the 1st of June, 1853, issued twenty bonds, for the payment of one thousand dollars each, of one of which the following is a copy:</p> <p>“UNITED STATES OE AMEBICA.</p> <p>“ State oe Iowa. $1000.</p> <p>“No. 4. County of Cedar. .</p> <p>“ Six per cent, loan, for subscription to the capital stock of the Lyons Iowa Central railroad company.</p> <p>“ Be it known, that the county of Cedar, in the State of Iowa, owes to the Lyons Iowa Central railroad company, one thousand dollars, which sum the Judge of the County Court of said county, having been duly authorized by a majority of the qualified voters of said comity therefor, promises in behalf of said county, to pay to the said Lyons Iowa Central railroad company, or its assigns, at the Bank of the Commonwealth, in the city of New York, on the first day of June, A. D. 1873, and to pay interest thereon at the rate of six per centum per annum, on the first day of each December and each June ensuing the date hereof, at the said Bank of the Commonwealth, in the city of New York, upon the surrender of the annexed interest warrants, signed,, by order of the said Judge of said County Court of said county, by J. ~W. Cattell, Clerk of said county. And the said Judge of said County Court, also agrees, in behalf of said county, to transfer, to the holder of this obligation, at any time, before the maturity of the same, if said holder shall elect to receive them, ten shares of one hundred dollars each, of the capital stock of the said Lyons Iowa Central railroad company, in exchange for, and in satisfaction of this obligation, upon the surrender of the same, and the unpaid interest warrants.</p> <p>“ This obligation is issued in part payment of a subscription of five hundred shares of one hundred dollars each, of the capital stock, of said Lyons Iowa Central railroad company, made by the said Judge of said County Court of said county, on behalf of said county, by authority of an act of the General Assembly of the State of Iowa, passed February 5, A. D. 1851, and of a vote of the qualified voters of said county, taken in pursuance thereof.</p> <p>' “ In testimony whereof, I, the Judge of said County Court of said county oí Cedar, in the State of Iowa, have hereunto set my hand and aifixed the seal of said county, this first day of June, A. D. 1853.</p> <p>( Seal.)</p> <p>S. A. BISSELL, Judge of the County Court of the county of Ceclar, of the State of Iowa.</p> <p>“ Attest: J. W. Oattell,</p> <p>“ Clerk of the Court.”</p> <p>Each of these bonds has attached to it, forty coupons, or interest warrants, promising to pay the semi-annual interest at the time it falls due, of one of which the following is a copy:</p> <p>“ Interest warrant No. 2, of bond No. 1.</p> <p>The county of Cedar, in the State of Iowa, will pay to the holder hereof, at the Bank of the Commonwealth, in the city of New York, on the first day of June, 1851, thirty dollars, for interest due on that day, on bond No. 1, issued for subscription to the stock of the Lyons Iowa Central railroad company. By order of the County Court of the county of Cedar, State of Iowa.</p> <p>“ J. W. CATTELL,</p> <p>“ $30. , Clerk of the county of Cedar.”</p> <p>The railroad company is alleged to be a corporation in the State of Iowa. The petition alleges that the present bond was, on the 4th of July, 1853, assigned and indorsed by the said company, to Henry P. Adams, of which assignment the following is a copy:</p> <p>“ In pursuance of an order of the Lyons Iowa Central railroad company, made on the books of said corporation, bearing date July 4th, 1853, we, the undersigned, "William Gr. Haim, Vice President of said company, and countersigned by James McCoy, Secretary thereof, do hereby, on the part of said company, 'assign and transfer the within bond to Henry P. Adams or order, for value received.— Witness our hands, and the seal «of said corporation, at Lyons, this 4th day of July, A. D. 1853.</p> <p>“ W. Gr. HAUN, Vice President.</p> <p>“ Countersigned,</p> <p>“ Jambs McCoy, Secretary.”</p> <p>To this assignment is attached the seal of said corporation. And it is averred, that on the same day and year, the said II. P. Adams assigned and indorsed said bond to the plaintiff, by the words “Pay to James Clapp or bearer.”</p> <p>In brief, the bond is for one thousand dollars, payable in twenty years from date, which is the 1st of June, 1853, at the Bank of the Commonwealth, in the city of New York, with coupons attached for each semi-annual payment of interest, payable at the same place. The action is, in fact, brought upon certain of these coupons, but the bond itself is set forth in the ■ petition. There was a demurrer to the petition, upon the ground, among others of less bearing, that the county could not be sued originally in the District Court; and that the county and the County Judge had no authority to make the bond. This demurrer was overruled by the District Court, and the defendant filed an answer:</p> <p>I. Denying the making and the assignment of the bond. .</p> <p>II. Denying that the plaintiff is a bona fide holder.</p> <p>III. Denying that the property in the bond is in the plaintiff.</p> <p>IY. Alleging that tlie bond was not issued under authority of law, for the following reasons:</p> <p>1. The County Judge did not submit the question to the people.</p> <p>2. No notice of the question was given to the voters.</p> <p>3. No tax was proposed and adopted.</p> <p>4. The proposition and the result of the vote were not entered of record.</p> <p>5. There was no publication of the adoption of the vote.</p> <p>6. No requisite of Chap. 15 of the Code was observed.</p> <p>Y. The answer further alleges, that the said Lyons company never had possession of the bond, nor was it ever delivered to the company, but that Ilenry P. Adams, ¥m. G-. Harm, James McCoy, and others not known to defendant, pretending to represent the company, colluded and conspired together, and by fraud, misrepresentation and deceit, unlawfully* got possession of the bond, and afterward fraudulently, and without authority of law, or of said company, pretended to assign the same to the said Henry P. Adams, who, in the whole transaction, was the leading spirit and wholesale swindler.</p> <p>YI. The answer then farther alleges, that the said bond and coupons were obtained from said county by fraud and misrepresentation, and without any consideration, in this, to-wit: That the then acting Judge of the county, issued said bond without authority of law, or of the people of the county, in consideration that said company were about to, and would, build and maintain a railroad through said county; and the pretended agent of said company so represented to the said County Judge, and relying upon such representations, and supposing that said pretended officers and agents were authorized on behalf of said company, to so represent, and receive said bond, the * said Judge delivered said bond to one Henry P. Adams, and others, who well knew that they had no authority to act for said company, and knew that their representations were false, and that said company did not intend to build and maintain a railroad through said county.</p> <p>VII. By an amended answer, the defendant denies that the bond and coupons were indorsed and assigned, as stated, by the company to Adams, or order, and that Haun and McCoy had any power, authority, or right, to assign the same; and that such order, as is alleged, was made on the books of the company, or such authority given.</p> <p>VIII. And then the amended answer proceeds as follows, the same being here set out in full: “And this defendant, further answering, saith, that on or about the 1st of March, 1853, the County Judge of Cedar county adopted an order, in substance as follows: ‘Ordered that the question be submitted to the decision of the legal voters of Cedar county, Iowa, — the question whether the comity will aid to construct a railroad, to run through the county, by subscribing fifty thousand dollars to the capital stock of the Lyons Iowa Central railroad company — said amount to be expended only in the event of said railroad being constructed and running centrally through said county, and only to be applied in the construction of the same within the limits of the county, the payment of the amount thus to be subscribed, to be paid for as follows: The county to issue her bonds for the sum of fifty thousand dollars, payable in twenty years, with interest, to be liquidated by an annual tax, to be continued from year to year until the whole amount is paid, of two and one-half mills on the dollar of the county valuation, as shown by the assessment roll. The form in which the question shall be taken and voted upon, shall be as follows: the votes in favor of the measure, shall be written or printed, ‘For the Lyons Railroad’; the vote against the measure, shall be printed or written, ‘Against the Lyons Railroad;’ and said measure shall be submitted and voted upon at the regular election Ibn the fourth day of April next.’</p> <p>“And this defendant further saith, that by the express terms of the order aforesaid, the said amount of fifty thousand dollars, was ‘ to be expended only in the event of said railroad being constructed and running centrally through the said county, and only to be applied in the construction of said road within the limits of the said county of Cedar,’ the payment of the amount thus subscribed to be provided for by the issue of bonds as aforesaid. This defendant farther states, that under date of May 2d, 1853, the County Judge caused the following to be entered upon the records of said Cedar county, viz: £ At a County Court begun and holden on this day, it appearing from the county canvass, that there were, at the election held in Cedar county, on the first Monday in April, 1853, a majority of votes cast in favor of Cedar county issuing bonds to the amount of fifty thousand dollars, to aid in building the Lyons Iowa Central road, and subscribing for the hire amount of the capital stock of said railroad company, therefore, it is considered, that said vote, being that of a majority of all legal votes cast for and against the proposition aforesaid.’ That afterwards, on some day unknown to this defendant, the following further entry was made, immediately following the entry last above named, viz: £ That on its being made satisfactorily to appear to the County Judge, that said railroad will be constructed centrally through Cedar county, that the said county subscribe fifty thousand dollars to the capital stock of said railroad company; and the same be paid for by the county issuing fifty bonds of one thousand dollars each, with interest at the rate of six per cent, per annum, payable semi-annually, with coupons attached — said bonds to be payable in twenty years; and that in accordance with the decision of the proposition aforesaid, that the principal and interest of said bonds, be paid for by an annual tax of two and one-half mills on the dollar of the county valuation, as shown by the assessment, to .continue, from year to year, until the whole of the principal and interest of said bonds is paid. And it is further considered, that the County Judge make arrangements to secure the expenditure of the means raised by the sale of said bonds, within the limits of Cedar county — all of which is in accordance with the proposition decided by the vote aforesaid.’</p> <p>“ And this defendant, further answering, saith, that there is nothing of record, or on file, in reference to the aforesaid bonds, in the County Court of the said county of Cedar, further than is above set forth; nor is there any thing of record showing that tire said county ever subscribed fifty thousand dollars, or any other sum, to the capital stock of the said railroad company; yet defendant is informed that Samuel A. Bissell, then acting County Judge, on his own motion, did issue twenty bonds of one thousand dollars each to the said company, of which the bond set out in the plaintiff’s petition, is one; and the coupons set out in the petition and amended petition, belong to, and were attached to, the said bonds so issued by the said Bissell. And this -defendant further saith, that the said bond sued on, as well as the coupons sued on, were issued without authority of law, to the said railroad company; for this reason, in addition to other reasons set forth in the answer of defendant, that the said bond and coupons were issued before the said railroad was constructed, and because, the said railroad has never been, and is not yet, constructed through the said county, centrally or otherwise; nor was the money in the said bond mentioned, applied in the construction of said railroad within the limits of said county of Cedar. And defendant avers, that the said railroad company is bankrupt, insolvent and dissolved. And defendant further states, that the consideration for which the said bond and coupons were issued as aforesaid, has wholly failed, and the condition on which said bond and coupons were to be issued and paid, viz: the construction of said road as aforesaid, has never been fulfilled — of all which the plaintiff is bound in law to take notice.”</p> <p>To all the allegations of those parts of the answers, numbered 4, 5, 6, and 8, and which allege that the bond was not issued under authority of law, for various reasons; that Adams and others, fraudulently obtained possession thereof; that it was obtained from the comity by fraud and misrepresentation ; that the bond was issued before the road was built, and that it has not yet been constructed; that the consideration has wholly failed; and that the company is insolvent, and is dissolved — the plaintiff demurred, and assigned as cause for demurrer:</p> <p>1. That the bond, being issued by the proper officer of the county, recites on its face that it was issued in pursuance of an act of the General Assembly, and a vote of the people thereon, and that there is no allegation of actual notice to the plaintiff, that it was not issued thus in conformity with law, nor any denial that plaintiff is a bonafde holder.</p> <p>2. That the county is estopped by the recitals in its bond.</p> <p>3. To the fifth cause in the fourth allegation of the answer, that no notice of thirty days or otherwise, was given, of the adoption of the jxroposition, the plaintiff demurs, because no such notice was necessary.</p> <p>4. To the sixth cause in the fourth allegation of defendant, that none of the recpiirements of chapter 15 of the Code, were complied with, the plaintiff demurs, for the reason, that the answer does not specify what requirements were not obeyed.</p> <p>5. To that part of the answer numbered 5, which avers that the company never had possession of the bond and coupons, but that Adams and others conspired and by fraud, obtained possession thereof, and that he fraudulently assigned, or pretended to assign, the same to Adams, the plaintiff demurs, for reason: — 1. That the answer does not aver any fraud on his part in getting the assignment and possession of the bond, nor any notice to him of any fraud or misrepresentation in obtaining the possession; 2. That the fraud and misrepresentation by means of which Adams obtained possession, is not specially set forth.</p> <p>6. To that portion of the answer numbered six, which avers that the bond and coupons were obtained from the county by fraud and misrepresentation, and without consideration, the plaintiff demurs, for reason that it is not alleged that he had notice of those facts.</p> <p>7. To that portion of the amended answer numbered 8, which sets forth the records of the county, the plaintiff demurs, and insists that they constitute no bar to the action ; and that if the records are as set forth, he is entitled to recover, and is not bound to take notice of the failure to build the road, nor of the insolvency of the company.</p> <p>The record then shows that this demurrer was sustained by the Court, in all its parts; and that the issues of facts, being submitted to the Court, were found for the plaintiff and judgment was rendered in his favor. The errors assigned by the defendant and appellant are, in substance, as follows:</p> <p>I.That the Court overruled the demurrer of the defendant to the petition of the plaintiff, thereby deciding — •</p> <p>1. That this suit was properly brought in the District Court, in the first instance;</p> <p>2. That the County Judge had legal authority, power and right, to execute and issue the bond and coupons on which suit is brought.</p> <p>II. That the Court sustained the demurrer of the plaintiff to the answer and amended answer of the defendant, thereby holding—</p> <p>1. That no submission of the question to borrow money — no notice of such submission — no proposition to levy a tax — nor adoption of a tax — nor entry or publication of the result — are necessary to the validity of the bond;</p> <p>2. That the recitals in the bond operate as an estoppel on the defendant;</p> <p>3. That the plea of fraud was insufficient;</p> <p>d. That the matters set up in the amended answer did not constitute a defense to the plaintiff’s action.</p> <p>The first question is, whether the suit was properly brought in the District Court in the first instance, the claim never having been presented to, demanded of, or rejected by, tbe County Judge or Court. We answer, No! This is in effect a jurisdictional question, and tbe objection appearing on tbe face of tbe papers, can be taken by demurrer, or will avail on error. See 1 Monell’s Practice, 540; Grant v. Tams, 7 Munroe 218. “Where tbe lack of jurisdiction appears on tbe plaintiff’s pleadings, a demurrer only is necessary, or it will avail on error.” See. 1576 of -tbe Code, gives tbe District Court general original jurisdiction, both civil and criminal, tohere not otherwise provided by law. Tbe District Court then, has jurisdiction, unless it is otherwise provided by tbe Code. It appears clear that tbe Code intended that all claims against tbe county, should be presented to, and passed upon by tbe County Judge or Court. It so declares expressly. See 2d Sub. See. 106 of Code; See. 131, allowing appeals. There is no difference, in legal effect, between tbe claim sued on, and any other claim for money against tbe county, and if tbis plaintiff can drag tbe county into tbe District Court, under these circumstances, then any creditor of tbe county can do tbe same tiling, and Sec. 106 of tbe Code, is held for nought. We have understood that tbe predecessors of tbe present Supreme Court, have decided in accordance with tbe view above presented; but of tbis we have no certain knowledge.</p> <p>Tbe next question that meets us, is, as to tbe legal power of tbe County Judge to execute and issue tbe bond and warrants declared on. We do not purpose to argue at length tbe Constitutionality of county subscriptions to Rail Road Corporations. Tbis question has, we understand, been fully argued at tbis term of tbe Court, and will doubtless receive, as it certainly merits, its most careful and weighty consideration. Tbe question as to tbe Constitutionality of municipal subscriptions to Railroad Corporations, has generally arisen, as in tbe case of Sharpel et. al. v. Mayor of Philadelphia-, 2 Livingston’s Law Mag., 124, where tbe Legislature has passed an act expressly authorizing such subscriptions; thus bringing up plumply, and plainly and only, tbe question whether tbe Legislature has, or can have, the constitutional power to pass such an act. And the question, thus arising, has been decided both ways, and is still questio vexata.</p> <p>No such question is presented in this case, because the General Assembly of this State has never passed an act allowing such subscriptions, unless it may be found in Sec. 114 of the Code. It has never been contended that a city or county, without the express sanction and authority of the Legislature, could legally subscribe to the stock of a private corporation. A long way this side of the question of constitutionality, therefore, is the question, whether there is any authority given by the Code, allowing such subscriptions as we are here spealdng of, — or in other words, the question as to the proper construction of Sec. 114 of the Code. If this, and the succeeding sections are carefully examined, it will be seen that they refer to county matters, — to matters over which the County Court has exclusive jurisdiction given it by the Code. It never was intended by the term “road,” to embrace “railroads;” nor can any such construction be fairly given to it. In July, 1851, when the Code went into effect there -was not a Railroad in the State, nor such a thing as county subscriptions to Railroad Corporations thought of. The word ‘aid’ with reference to public buildings; the words £other local regulations.in Sec. 114, and the whole of Sec. 118, show most conclusively that 20 years subscriptions to aid in building a Railroad, were never intended. If any doubt remained on this point, it is removed by a dictionary clause defining the meaning of the word ‘road.’ Sec. 26 of Code.</p> <p>It is well settled, that it is allowable and proper to raise by demurrer, every question which arises on the face of the papers. The bond is made part of the petition, and it recites the laws of the State of Iowa, as the authority under which it is issued; and consequently a party contesting the proposition that the laws of Iowa do give such authority, can raise this objection by way of demurrer.— Before approaching directly the discussion of the questions raised by the demurrer of the plaintiff, to the answer and amended answer, we beg leave to advert to some general and well settled propositions of law germadn to the subject, and which will, we think, tend to guide us to correct conclusions.</p> <p>The officer who issued the bond declared on, (the County Judge), is an officer of special and limited jurisdiction and power. Pie derives his official life from the Code, and from no other source; the Code has endowed him with all the powers he possesses, and these are special, limited and trenchantly-defined. It prescribes what the County Judge may rightfully do; and beyond the express authority it gives him, he is utterly powerless. Authority not expressly granted, is not conferred; powers not expressly given, are withheld. He is the agent or attorney in fact of the county, (Argument of Kent and Webster, in Delafield v. Illinois, 8 Paige, 529), and possesses no power or authority to bind the county, except so far, and no farther than the Code — his letter of attorney — expressly authorizes. This agency or attorneyship is directly avowed in the bond, which purports to be made by him, for and “ on behalf of the county,” and the bond binds not the county (his principal), unless he had legal right and authority to issue it. Eor example: If the County Judge shotdd issue bonds and subscribe to stock in a railroad company, without the prior vote of the people, such bonds would not bo binding on the county. This subject, the power of officers who act by virtue of statute authority alone, is generally spoken of in the books, under the name of Statutory Powers, and the law may be considered clearly settled in accordance with the view above presented. If the County Judge who issued the bond in question, possessed any legal power to do so, such power is the exercise of a naked, statutory and special authority, depending exclusively upon the statute for its existence, validity and mode of execution.</p> <p>Extraordinary as it may seem, these propositions were controverted, or their applicability denied, in the Court below ; and this shall be our apology, if any be needed, for some citations of authority in their support. Among the many authorities that crowd upon us, we refer to the following, as being especially'in point, or strikingly analogous. Doughty v. Hope, 3 Denio, 595 ; Sharp v. Speir, 4 Hill, 86 ; Sharp v. Johnson, 4 Hill, 92; Varióle v. Toll-man, 2 Barb. S. C. 113 ; Striker v. Kelly, 2 Denio, 323 ; In the matter of Beekman St. 20 John, 269 ; Stafford v. Mayor et al Albany, 7 John, 541; Marly v. Doe, 16 IIo-ward, U. S. 610; Young v. Martin,' 2 Teates, 312; vide cases cited in Blackwell on Tax Titles, page 47; Williams et al v. Peyton’s lessee, 4 "Wheaton, 76; Barker y. Rule’s lessee, 9 Cranch 64, where, although the question was not raised, it was admitted by Court and counsel. A rich vein of authorities, on this subject, may be found in Blackwell on Tax Titles (against which book, there seems to be, in' many quarters, an unreasonable prejudice), at pages 45-47 and 51. It is needless to argue the analogy of the above cases, to the one at bar, as respects the point now under consideration. It is clear and incontestible.</p> <p>The County Judge in issuing these bonds, acting, and professing to act, as the agent of the county, the plaintiff, who relies upon the act of such agent, is bound in law to know whether sitch agent has power, and to what extent, to bind his principal. A person dealing with an agent of limited powers, is bound to examine and know the authority of that agent. Vide Cliitty on Contracts, 58; Schimmelpenniek v. Bayarck, 1 Peters, 264, 15 East. 43. The County Judge has no authority except what is derived from statute ; he is the mere agent of the county; see Code of Iowa, and the Code is his Special power of attorney. The principal is not bound by the act of his agent, beyond the authority of the agent. Story on Agency, Sec. 160-170 ; Beals v. Allen, 18 Johns. 363. Again, the bond on its face, expressly referring to the laws of the State, to a vote of the people, &c., &c., every person taking such bond, is boxuid to take notice of the provisions of the law, and to know whether such a vote ever was taken, the nature and terms of the proposition voted on, and the result of the vote.</p> <p>The Supreme Court in New York city, in the case of A. L. Hogvet v. Rensselaer Bank, not yet reported, have decided an important principle .illustrative of the point we are now making. The Bank issued, its ordinary negotiable stock certificates. On their face, these certificates appeared to be transferrable in accordance with the By-Laws of the corporation. By these By-Laws it was provided that the Bank would recognize no transfer, if the party transferring was a debtor of the Bank, until such debt should be paid. A party holding some of these negotiable stock certificates, sold and transferred them to another party, who did not know that the vendor owed the Bank, nor ' that such was the provision of the By-Laws. Held, by the Oomt, that as the certificates contained a reference to the By-Laws, the party buying was bound to take notice of those By-Laws, and the Oomt refused to compel the Bank to recognize the transfer, until the purchaser should pay the debt due by his vendor to the Bank. Vide, also, as, illustrative of this point, and going to establish it: Hveritt v. 2 homas, 1 Iredell, 252; Ritter v. Barrett, 4 Dev. & Batt. 133; Field v. Huston, 8 Shep. 69; Thomas v. Hatch, 3 Sumner, 170.</p> <p>We pass now to the consideration of the questions raised by the plaintiff’s demurrer to the answer and amended answer.</p> <p>I.The answer. This, among other defenses, sets ■ up •“ that the pretended bond and coupons were never issued by authority of law, in this,” viz</p> <p>1. The County Judge of Cedar county never submitted "the question of borrowing money to the people of the county, as provided by law;</p> <p>2. No Notice of the submission was ever given;</p> <p>3. Nor was any proposition in a submission, made to lay a tax, &c., nor any tax adopted;</p> <p>4. The County Judge did not enter the result on the minute book, as required by law;</p> <p>' 5. “The County Judge failed to publish notice of result.”</p> <p>Strange as it may seem, this part of the answer was met, not by a traverse, or by confession and avoidance, but by demurrer, which, of course, admits the truth of the plea. For cause of demurrer, the plaintiff states, that the bond and coupons, “issued by the proper officer of the county, “recites on its face that the bond was issued in pursuance “ of an Act of the General Assembly and a vote of the peo“ple thereon, and there is no allegation of notice to the “plaintiff that it was not, or denial that he is a bona fide “holder; and without an allegation of notice to the holder, he “ being an assignee, the plea is not good in law.”</p> <p>II. “ Becanse the county is estopped by the recital in its own bond.”</p> <p>The District Judge sustained the demurrer. Can this be law? The answer sets up that the question was newer submitted; that no notice of submission was ever published ; nor the result of any vote entered on the records of the county, &c. The court below held this plea to be bad, because it did not allege that the plaintiff had actual notice of these facts, and because the county is estopped by the bond from denying them. These objections are, we think, already sufficiently answered. The County Judge, as the agent of the county, has no authority or power, on his mere motion, to issue such a bond as the one sued on; and the plaintiff is bound to know at his peril, whether the conditions on which, and on which only, his right to issue such bonds rests, have been complied with. Fie is bound to know whether any law exists authorizing counties to subscribe to stock in railroad corporations; he is bound to know, if any such law does exist, whether its requirements have been complied with; whether notice was given; whether there was a submission, and what that submission was; whether there was a vote, and what the result of that vote was. ¥e repeat with emphasis, that the purchaser is bound to know and at his peril enquire, as to these matters. Why? because unless these requisitions have been complied with, the County Judge has no power to issue these bonds, and they are absolutely void. In the part of the answer we are now considering, the defendant voluntarily took upon himself the burden of impeaching the validity of these bonds, and of showing that they were issued without authority of law.</p> <p>The defendant might have legally taken higher grounds, and required of the plaintiff to show that the necessary steps to render the issuing of these'bonds valid, had been taken. Williams et cil. v. Peyton’s lessee, 4 Wheaton, 76; Jackson v. Shepaird, 7 Cowen, 88; Konkendorf Y. Ta/ylor’s lessee, 4 Peters, 349; Sharpe v. Spears, 4 ITill, 76; Sharpe v. Johnson, 4 Hill, 92; Striker v. Kelly, 2 Denio, 323. At all events, the presumption in favor of the performance of official duty, is not conclusive, but may be overcome, by proof. Doughty v. Hope, 3 Denio, 594. But in the case at bar, the Comt by sustaining the demurrer to this part of the answer, held not only that the orms was not upon the plaintiff, but also denied the right of the defendant to go behind the bond, to shew its recitals to be false, or the pre requisites of issue to be wanting. In the issue of these bonds, the County Judge acts, not as a judicial officer, but as the special and statutory agent of the county, and no presumption arises as to the regularity and validity of his acts as such agent; therefore the party who insists that such acts are regular and valid, must show them to be so.. The issue of these bonds is entirely a matter of statutory regulation, much more so, than sales of land upon execution, or sales by administrators and guardians. And as the ptuchaser at sheriff’s sale is bound to know and inquire, whether there is a valid judgment and execution, and as a pmchaser at administrator’s or guardian’s sale is bound to know and inquire whether the necessary notice has been given, and the requisite order procured, so, for the same reason, is the purchaser of a statute-bond, like the present, bound to know and inquire whéther the conditions upon which the validity of such bond depends, have been complied with.</p> <p>As to the matter of estoppel, we understood the counsel for the Plaintiff to abandon that point, in his oral argument to the Court; but whether he abandoned, it or not, it is sufficiently answered by saying, that estoppel does- not apply, if the bond is not the bond of the defendant, and the gist of the defence set up on the part of the answer is, that the bond, being issued without authority of law, is not the bond of the defendant, and, therefore, the county is not estopped from denying its recitals. No enlargement can make this more obvious. We would only say, however, that if the doctrine asserted by the adverse counsel, and by the Court below, be law, any County Judge, on his own mere motion, may issue bonds like the one sued on, to an unlimited amount, and if he only recited that they were issued in pursuance of law, and a vote of the people, the county is bound to pay them, and is estopped from denying the recitals, even if there is no law authorizing him to issue them, and even if no vote of the people was ever, in fact, had. The decision of the Judge below, on this point, is in direct conflict with every decision ever made. Recitals by public officers, are not regarded in law, as in the nature of estoppels; so far from tin's, such recitals are not evenpruína, facie evidence of the-truth of the matters recited, and may always be disproved. As a type of the character of the decisions on this point, wo quote from the decision in Vanrrich v. Tcdlmam, 2 Barb., S. C. 113, where the Court says: “Neither the recitals in the Comptroller’s deed, nor the presumption in favor of the official acts of public officers, can dispense with proof of the facts which conferred on the Comptroller, power to sell.”, If the recitals in the bond sued on, dispense witli proof of tlio facts which conferred on the County Judge power to issue it, still they cannot out off — estop—the defendant from disproving them.— Vide also, Williams et. ad. v. Peytort s lessee, 4 Wheaton, 76; Jaclcson v.. 8hep>a/rd, 7 Cowon, 88, and other cases cited in Va/rrick v. Tallmam,, 2 Barb., sicpra; Blackwell on Tax Titles, 93.</p> <p>In the last plea set up in the answer, the defendant alleges that the bond and coupons, described in the petition, “were obtained by fraud, and misrepresentation, and without any consideration;” specifying particularly, wherein such fraud and misrepresentation consisted. To this section of the answer, plaintiff also demurred, because actual notice, to him, of these matters is not alleged. Admitting, for the sake of the argument, that the bond and coupons are negotiable paper, in the commercial sense, and governed by the law applicable to such paper, even in this view, what is the law ? Most confidently do we submit it to be as follows: “If a bill or note is shown by the defendant to have been fraudulent in its.inception, or fraudulently put in circulation, then the onus is thrown on the plaintiff, to show that he came by its possession fairly, and without any knowledge of the fraud.” Monroe v. Cooper, 5 Pick., 412. In this case, Wilde, J. remarks, that if the defendants prove the fraud, “they will have a ■“right to know how the plaintiff obtained it, (the note); “and if, in such case, he, (the .plaintiff), cannot exonerate “himself from all participation in the fraud, or knowledge “of it, he can have no right in law or equity, to recover.” Earle J., said: “If the illegality is proved, it raises a “presumption that the holder took the instrument without “value, and so the burden of proving value, is cast on the “plaintiff, so far as this, that if'no evidence be given on either side, the presumption that he took it without value, “prevails.” Vide also the case of Fitoh v. Jones, 1 Jur. N. S., Part 1, 854; 24 L. I. Q. B., 293, cited in Livingston’s Law Mag., for January, 1856, 96, to which case particular attention is asked.</p> <p>In the same case, Lord Campbell, O. J., states, the reason of the presumption of law, that the plaintiff took the instrument without value, as follows: “Where fraud or illegality is established, there is such a presumption, because in such cases, the law supposes that the original party, not being able to sue upon the instrument himself, has handed it over to another to sue for his benefit.”</p> <p>In the case before the Court, the demurrer admits the plea of fraud, and the law, therefore, presumes that the plaintiff took the bond sued on, without consideration, and with notice of the fraud. See leading case of Bailey v. Bid/well, 13 Meeson & Welby, 173; Hobnes v. Kaisper, 5 Binney, 469; Qrcmb v. Vcmghcm, 3, Burrows, 1,523; Peake’s Ev., 220; Kyd’s Ev., 206; Dwneam v. Seott, 1 Campbell, 100; Rees v. Ma/rgms of HeadfoH, 2 Camp., 574; Beltzhoover v. Blaekstooh, 3 Watts, 26; Valletta Parker, 6 Wendell, 615; Munroe v. Cooper, 5 Pick., 412; Knight v. Pugh, 4 Watts & Sargent, 445; Brown v. Street, 6 W atts & Sargent, 221; Vathir v. Zane, 6 Grattan, 346, 263; Gornroy v. Warren, 3 Johnson’s Cases, 259; Woodhall v. Hobnes, 10 Johnson, 231; Rodgers v. Morton, 12 Wendell, 484, 487. If it is urged that the defendant ought to have alleged that the plaintiff took the bond without value, or with notice. We reply that no such allegation is necessary. Illegality and fraud, being pleaded, and, by the demurrer admitted, the law presumes, that the plaintiff is not a bona fide holder. If this allegation was made, the defendant would not have to prove it, for if he proves (or the plaintiff admits) the fraud, it is, in the language of Alderson B., (in Bailey v. Bid/well, 13 M. & W., 77) equivalent to saying: “It is an illegal instrument, and I put it in issue, whether you are an endorser for value.” That presumptions of law, need not be alleged, requires no authority to prove, and to require it is to require what the law presumes, and what the party need not prove. Nor is it necessary to allege beyond what it is necessary in the proof to establish; therefore, on a plea of fraud, like the present, it is not necessary for the defendant to allege notice or want of value, for if the fraud is established or admitted, the law presumes that the plaintiff took the instrument-in bad faith, and he, the plaintiff, (and not the defendant), must shew the contrary, before he can recover. Even a bona fide holder of negotiable paper, which has been obtained by fraud, theft or robbery, is entitled to recover only the amount he has actually advanced. See Story on Prom. Notes, 3d. Ed., section 191.</p> <p>Before we pass to the questions arising upon the amended answer, we wish to allude to the legal character of the bond sued on. The plaintiff, as will be seen from the record, claims that the bond and coupons are negotiable paper, with all the incidents of negotiability; hence, the demurrers to the defences set up in the answer, because it is not alleged that he had notice of them. ¥e deny that the bond and coupons are properly to be considered as negotiable paper, and that the law of ordinary commercial paper is applicable to them. The difference between the two are many and obvious. Every person who is mi jiwis, has a right to issue his negotiable paper to any person, and for any amount. The transactions out of' which ordinary commercial or negotiable paper grows, are in pais, and known in general only to the parties to the paper, and being in pads, it would be impossible, in most instances, for assignees to ascertain the real consideration for which such paper was given, and hence the law does not require it of them. But the case of county bonds to railroad companies is vastly different. The County Judge who issues them, has no inherent, absolute right to do so; his right, if it exists at all, exists only when certain, well-defined pre-requisites are complied with, which exists, not in pais, but of record, and open to the inspection of all. Therefore, all persons are required, and are and can be reasonably required, to know at their peril, whether such bonds have been properly and legally issued. These bonds, not being regarded as ordinary negotiable paper, it follows, hence: that if the defence set up is, that they were illegally issued, the defendant is not bound to go further, and allege expressly that the plaintiff had notice of such illegality, because he is bound to take notice of it, and because not being negotiable paper, like bills and notes, the assignee must give notice to the maker, in order to constitute a valid assignment. The Court has already so decided this last point, in the case of the Merchants’ and Mechamos’ Bank, v. Hewitt, 3 Iowa, 96, and to which reference is made. An instrument like the one sued on, is not negotiable at common law. In the case of the Mer. and Mech. Brnlc v. Hewitt, in speaking of instruments falling under section 919 and 950 of Code, such as a warehouse receipt to deliver corn to the order of the depositor, the Oom*t uses this language: “ In order to constitute a valid assignment of an instrument in writing, like the present, it is necessary that notice of the assignment be given to the maker.” The whole law in reference to what is, and what is not negotiable paper, is collected in American Lead. Cases, 303, 326, and particularly see Overton v. Tyler et al., 3 Parr. 316, deciding that a note, with a warrant of attorney attached, is not negotiable. The result of the authorities is thus stated in 1 American Leading Cases, pages 326 and 327: “ In this country, no instruments are negotiable, but regulear promissory notes and bills of exchange.” See Birchead v. Brown, 5 Hill, 635, where Justice Bronson makes some very sensible remarks, which we would like to quote, had we the space. Also, see Olearle v. Meanufact. Oo., 15 Wend. 256; Lewis v. Wilson, 5 Black. 370; Treval v. Fitch, 5 Whart. 325, 351; 1 Parsons on Contracts, 169. The bond sued on, not being negotiable paper, is subject to the equities between the parties, unless the Code has declared otherwise. LIoplems v. Bedl/roacl Oo., 3 Watts, and Serg. 110. Bonds given by the East Indian Co. were held not negotiable, though payable to order and bearer, and a statute was necessary to be passed in order to make them so. Giyn v. Baleer, 13 East. 509; Ohitty on Bills, 109; Lcang v. Smith, 7 Bing. 281. Again, the bond in question is prolix, and has few of the qualities of ordinary negotiable paper, which (says C. J. Gibson, one of the ablest of American Jurists, in Overton v. Tyler, svpra.) is framed in the fewest possible words, and those importing the most certain and precise contract. “But a negotiable bill or note, (says the distinguished Judge, using a happy illustration,) is a carrier -without luggage.” The bond in question, so far from possessing the precise, simple and definite attributes of negotiable paper, is heavily freighted with the luggage of recitals aud stipulations of various kinds. In the case in 1st Stockton’s reports, so confidently related by Judge Grant, there was no question of the right of the canal and banking company to issue its bonds, and but little question that this right had been properly exercised. The main questions decided in that case, were as to the right of parties holding these bonds as collateral, and the right of purchasers under them at public sale.</p> <p>We now pass to the amended answer. Under section 1752 of the Code, allowing a party to state in his pleadings, as many grounds of defence as he may think material, the defendant filed an amended answer, which sets forth “ all that there is of record or on file in the County Court of Cedar county, in reference to the said bonds.” The amended answer sets' up, that on 1st of March, 1853,' the County Judge ordered the question to be submitted, “ whether the county will aid to construct a railroad, to “ run through the county, by subscribing fifty thousand “ dollars to the capital stock of the Lyons Iowa Central “ railroad company, said amount to be expended only in , “the event of said railroad being constructed and running “ centrally through the said county, and only to be applied “ in the construction of the same within the limits of the “ county, the payment of the amount thus subscribed to “ be provided for as follows,” viz : by the issue of bonds, &c. This, the Court will observe, is only the order of the Court for the submission. The next record is. under date of 2d of May, 1853, wherein the County Judge states that there was an election in April, (fee., but does not give the number of votes, or the result of the vote at large, as required by law, and concludes by pronouncing judgment upon the vote in the following queer and unintelligible manner: “ Therefore, it is considered, that said “ vote, being that of a majority of all the legal votes cast “ for and against the proposition aforesaid. ” The next record under the same date is especially worthy of attention. It begins thus: “ That on its being made satisfac- “ torily to appear to the County Judge, that said railroad “ will be constructed centrally through. Cedar county, that “ the said county subscribe fifty thousand dollars to the “ capital stock of said railroad company, and the same be “paid for by the county’s issuing fifty bonds,” &c. What the Judge who made this record meant, we confess ourselves unable to determine. Did he mean that it having been made satisfactorily to appear to him that the said railroad would be constructed, the county does now subscribe fifty thousand dollars to the stock of the railroad company ? Or did he mean that when it shall be made thus to appear, the county will then subscribe ? However this may be, we invoke the especial attention of the Court to the following statements :</p> <p>1. The record does not show that any proposition was ever submitted to the voters'of the county. All that the record discloses is, that in March, 1853, the County Judge made an order for a submission of a certain question to the people of the county. It by no means follows, nor is there any proof, that this, or any other question, was ever, in fact, submitted or voted upon.</p> <p>2. There is nothing in the record or on file, showing that four weeks notice, or any notice, was ever given of the submission of the question to subscribe stock to the Lyons railroad company. On this point, the record is totally silent. Was any notice of any kind ever given? Was there a newspaper in the county, and was notice given through that medium? Was it given by posting as required by section 115 of the Code ? Were any of the requirements of this section ever complied with ? The statute is particular in requiring in all cases, “ at least four weeks notice.” Was this done ? Between the time of the order, and the 1st of April, scarcely more than four weeks intervened. Look at the record; and answer who can ? The defendant alleged that no such notice was in fact given, and the Court below held that this defence was not good, unless accompanied with the further allegation that the plaintiff knew this, when he took the bond.</p> <p>3. There being nothing to show that any, or if any, what proposition was voted on by the people, it does not appear that any provision to levy a tax accompanied the proposition, without which any vote by section 116 of the Code, is of none effect, and void.</p> <p>4. The proposition voted on, and the result of the vote, are not entered at length on the record, as required by section 119 of the Code. The record does show that a vote on some proposition was had, but does not show what that proposition was. If any proposition was in fact submitted, it may have been materially different from the one ordered by the court. ¥e alluded to these matters particularly, because until these requisites are complied with, the vote has not the force and effect of an act of the General Assembly.</p> <p>‘ 5. There is nothing of record, or on file, showing that the county ever subscribed any sum to the stock of said' railroad company, for the payment of which stock, and for that only, bonds were to be issued, nor does it appear that the county ever issued any bonds at all to this railroad company.</p> <p>If this Court shall assume, (for of these matters there is no evidence of record or otherwise,) there was a proposition submitted, and that the proposition which the County Judge ordered to be submitted, was the one voted on, and that notice, and due notice was given, still we maintain, that the County Judge had no legal right or authority to issue these bonds; and if he exceeded his authority, then, as we have shown, his acts are not binding upon the county. "We now call especial attention to the phraseology of the order of submission. It is this: “"Will the county aid “to construct a railroad to run through the county, by “subscribing fifty thousand dollars to the capital stock of “the Lyons Iowa Central railroad company, said amount “to be expended only in the event of said railroad being “constructed and running centrally through the said coun“ty, and only to be applied in the construction of the same “within the limits of the county.” Thus, by the fundamental requirements of the submission, the money was “only to be expended in tbe event of the construction of the road;” and “applied in the county,” etc. The peoqDle of the county, it might well be supposed, would not hesitate to vote in favor of suclr a proposition, as it was so limited and qualified that they did not part with their money, unless they, obtained their road. Tet the record shows that these bonds were issued, not after the road was constructed, and not for the purpose of expending them in the construction of the road in the county, but on the contrary, they were issued, to use the language of the Judge, “ on its being made satisfactorily to appear to the County Judge that the said railroad will be constructed,” etc. All we have to say is, that the people did not vote in favor of a proposition to expend fifty thousand dollars of their money, when Judge Bissell should be satisfied that the road would be built.</p> <p>The amended answer sets up that the road was never built, nor was the money of any of the bonds expended within the limits, of the county. To this amended answer, the plaintiff also demurred; the Court below sustained the demurrer; the defendant stood by his answer and amended answer; and the Court rendered judgment against the county.</p> <p>In the oral argument for the plaintiff, it was mentioned that the matter of the validity of these bonds, had once been before this court. This is true; but at the same time it is equally true, that it was before the court in such a shape, that only one of the questions which we now mate was decided, and that only by a bare majority — Judge Greene dissenting. We invoke the particular attention of the court to the record in the former suit. See S. A. Bis-sell, coimty Judge, v. State of Iowa, ex relat. leech et al.- — ■ In that case, the answer set forth specifically and minutely, that all the requirements of the code had been complied with; that notice was given of the submission; what that submission was; that the votes were canvassed, and the result of the vote was specifically stated ; that a record was made, the result published as required, by law, &c. To this the relators demurred, thereby admitting the statements of the answer to be true. In fact, the only point on which the opinion of the court was sought in that case, was as to the right of the Judge, (admitting the vote and everything connected with it to be regular,) to issue the bonds before the road was constructed. A bare majority of the court decided that he had this right; and the ground on which Judge Hall based his opinion was, that he could not see how the county could “aid” to construct a road, and yetnot pay the money until it was constructed. Take the whole order of submission together, give effect to all of it, and is not the fair construction, and the construction which the voters would put upon it, thus: — “Will the county aid to build the railroad, by subscribing fifty thousand dollars to the stock, payable when the road is constructed, or during its progress through the county ?” Is not this rendering substantial “aid” to the Bail Boad Company ? By it, they sell, at par, five hundred shares of their stock, payable as the work progresses, or when it is completed. The people of the county made with the Bailroad Company just such a contract as almost every man, malees with his mechanic : “build my house, and I will pay you as the work progresses or upon its completion.” And is this not “aid” to the builder? Can effect be given to the whole proposition by any other construction ? If so, what one ?</p> <p>in a written agreement too lengthy for publication in extenso, cited the following authorities: Code, § 93; 1726; Steel v. Da/ois Comity, 2 G. Greene, 469; Acts of 1843, 123; The Pacific P. P. Co. v. Dubuque County, 4 G. Greene, 1; Raleigh dé Gaston R. R. Co. v. Da/ois, 2 Dev. & Bat. 451; Bouv. Law Die. Rood; Code, §974; Byles on Bills, 126; Others. Rich, 10 Adol. & E. 784; (37 Eng. C. L. 235;) The State ex rel. Leach v. Bissell, 4 G. Greene, 328; Code § 106; Royes & Co. v. R. dé B. RaiVroad Co. 1 Williams (Vt.) 110; Ketch-urn v. City of Buffalo, 21 Barb. 294; Valleite v. Pa/rTcet', 6 Wend. 615; Powers v. Ball, 1 Williams, 662; Story on Bills, § 188; Chitty on Bills, 78; Bailey on Bills, 499; Fitch y. Jones,.32 Eng. L., & E. 131; Merch. db Mech. Bamlc y. Hewitt, 3 Iowa, 93; Overton y. Tyler, 1 Am. Lead. Cases, 303; Code, § 917; Delafield' y. State of Illinois, 8 Paige, 527; 2 Hill, 160 ; Morris G. db B. Go. v. Fisher, 1 Stockton, 699 ; Wooleey y. Pole, IB. & A. 1; Georgia y. Melville, 3 B. & 0. 15 ; Lory y. Smith, 7 Bingh. 281; 1 Parsons on Cont. 210 ; United States y. Arredendo, 6 Peters, 729.</p>

Suit before a Justice of tbe Peace, on tbe covenant of warranty, in a deed of conveyance from defendants to plaintiff, to recover the sum of twenty-two dollars and five cents, for tkxes, alleged to have been incumbrances upon tbe property at tbe time it was conveyed, and which, defendants refusing to pay, bad been paid by plaintiff.

<p>Where the ancestor of certain heirs held real estate under a grant or concession from the Spanish Lieutenant Governor of Upper Louisiana, which concession in 1816, was confirmed by the report of the Recorder of Land Titles at Saint Louis, and an act of Congress recognizing and referring to the same; and where the said heirs, and their husbands, in 1836, and before a patent for the land had issued by the United States, conveyed said land by deed, which after reciting the parties — the interest of the heirs in the land — their willingness to sell — the consideration — and the usual words, “grant, bargain, and sell,” provided as follows: “To have and to hold the said tract of land above mentioned and described, and all right, title, interest and estate of the said F. C. and L., his wife, or either of them, in and to the same, and all the rights, privileges and appurtenances thereunto belonging, unto the said B. his heirs and assigns forever; and the said F. C. and L., his wife, do hereby bind themselves, their heirs, &c., to warrant and forever defend the right and title thereto, to the said B., his heirs, &c., against all claims and demands whatsoevei', saving and accepting the claim or demand of the United States. And the said B. C. and L., his wife, for themselves, their heirs, &c., do hereby covenant and agree to and with the said B., his heirs, &c., that they have good right and power to sell and convey the interest of the said L. in the said land; that at and before the date hereof, she was entitled to one-third part of the interest and estate therein formerly owned by the said B. (J. (the ancestor), deceased; and that they will hereafter make and execute to the said B., his heirs, &c., at his Cost, any other deed or conveyance concerning the said land, and the portion of the said L. in the same, that may he required of them to malte; and they do hereby constitute and appoint, without the power of revocation, the said B. their lawful attorney, in their name and stead, to aet for, demand, receive, sue for, recover and possess, all their right, interest and estate, and the right, interest and estate of either of them, in the said lands; and to petition Congress, or any other body or authority, respecting the premises, in the same manner, and to the same eifect, as they themselves could have done, had they retained the said interests in the said land Held, 1. That the deed, without the provision for a subsequent conveyance, or the clause constituting the grantee an attorney, &c., contained all that was necessary to pass the title to the land; and that there was nothing in those provisions tending to show that the conveyance was a conditional one, nor that the grantors retained any interest in the land, nor that any subsequent deed or writing was contemplated between the parties thereto, as being necessary to invest the grantee with a perfect title; 2. 1'liat both of these clauses are in aid and furtherance of the general covenants contained in the deed, and were in no manner inconsistent with them ; but conferred upon the grantee power, and invested him with privileges, beyond what he would have had under and by virtue of the usual covenants ; 3. That the fact that the grantors had covenanted to afterwards make any other deed that might bo required, could not vitiate the one already made, nor take from it its validity as a deed.</p> <p>An individual owning an interest or share in a tract of land, is not so far interested in the1 entire land, as to prevent him, in his official character, from taking the acknowledgment of a deed, convoying to a third party, another and distinct interest or share in the same land.</p> <p>The fact that the grantee in a deed, and the party before whom the deed was acknowledged, had an agreement or understanding that each should purchase distinct shares in the same land, with a view to a joint speculation, might be-a circumstance tending to show fraud, or a fraudulent combination, to impose upon the grantors, but in, itself would not be sufficient to vitiate the deed.</p> <p>The record of a deed, the acknowledgment to which is fatally defective, will not operate to give constructive notice of its contents, to third persons.</p> <p>As to ordinary conveyances, if third persons have actual notice of them, they are bound by such notice, to the same extent as they would have been by the recording of a deed in all respects regular and perfect in its acknowledgment.</p> <p>Where in a proceeding in chancery to set aside certain deeds of lands of the wife, executed in 1836, which were defectively acknowledged, and to quiet the title of complainant under conveyances from the same grantors, executed in 1854, it appeared that one of the complainants had taken title to a portion of the real estate, (which was not in controversy, ) under title derived from said defective deeds, prior to receiving, the title under which he now claims; that he bought the latter title, for the express purpose of commencing suit; that the grantors told the complainant, when he purchased the latter title, that they had, long before that time, sold their interest in the land — that they had no disposition to take advantage of their former conveyances; that he purchased the latter title for a nominal consideration; and that the conveyances made in 1854, were obtained by fraudulent representations ; and where the deeds made in 1836, were so' defectively acknowledged, that they did not divest the wife of her interest in the lands; Sold, 1. That the complainant had actual notice of the deeds of 1836; 2. That although the said deeds did not divest the wife of her title and interest in the land, and the grantees therein obtained no title, yet that, under the proof made in the case, the complainant could not take advantage' of the defects in the deed.</p> <p>Where a complainant in Chancery admits upon the record that he never authorized the commencement of the suit, and manifests no wish that his rights shall be protected by the Court, the Chancellor will refuse to decree the relief prayed for, even though upon the showing made in the cause, he may be entitled to such relief.</p>

<p> Appeal from the Des Homes District Court. </p> <p>Taylor sued Johnson & Bennett, and issued a writ of attachment, tinder which the Burlington & Missouri River Railroad Company was garnished, by service made on the 7th July, 1861, upon IT. Thielson, the engineer and agent of the Company. Johnson & Bennett were contractors under the Company, for grading certain sections of the railway. The contract was entered into on the 30th May, 1851. The District Court rendered a judgment discharging the garnishee, from which the plaintiff appeals.</p> <p>cited and relied upon the following authorities: . Drake on Attach. 972; Sébor v. Armstrong, 1 Mass. 206 : Cleveland v. Clapp, 5, lb. 205 ; Granes v. Walker, 21 Pick. 160; Code, 268; P Ins. C. v. Cohen, 9 Missouri, 121.</p> <p>made the following points: • '</p> <p>1. The Company is not subject to trustee or garnishee process. There is no statute rendering corporations liable to such process: They are' not so liable unless by express statute. Angel & Ames on Corporations, sections 397, 102; Cushing on Trustees, 2, (note;) Union Turnpike Co. y. N. England In. Co., 2 Mass., 37; Danforth, v. Penny, 3 Met. 561; N. England Marine In. Co. v. Chandler, 16 Mass., 277.</p> <p>2. By terms of the contract, a per-centage of the estimates were subject to be withelcl as security for performance. This jier-centage was not subject to garnishee jorocess, even if a corporation were liable to be garnished, and the contract was otherwise such as would admit of it. Before such reserved fund could be wrested from the company, the whole contract would have to be completed to its letter. No payments except upon certified monthly estimates, were to be made, until completion of,the contract. As no such estimate appears to have been certified, nothing was due the contractors at the service of the garnishee process ; therefore, as it appears by the answer that the contractors disappeared, and the work has never been completed, nothing has ever become due to them, or subject to such process, even if free from the question hereinafter to be discussed, as to the right of payment to the laborers. The contractors could not, themselves, recover, for they had failed to perform. Dailey v. Jordan, 2 Cush., 390.</p> <p>3. By another clause in the contract, the company, or engineer, was authorized to pay the money to the laborers on the road. This privilege was not by a grant from the contractors to the company, of a right previously, or ever, by the contractor's possessed; but was a reservation of power, stipulated for in the contract, was co-eval in existence with the contract, and with all the rights of the parties thereto. The contractors could not have coerced the payment to themselves, as against the laborers, except by consent of the engineer. Nor could they have enforced any claim for compensation at all, having abandoned the work and totally failed. The creditors of the contractors are ho bettor off than the contractors, in that respect, were themselves. They occupy, as against the company, no better position than the creditors themselves would, if litigating for this money. The creditors are only substituted, to the contractors rights. Then they cannot hold the fund in question,' in either case. Josl/yn v. Merrow, 25 Yt. (2 Dean) 185: Drake on Attachments, sections 41'4, 415, 416, 498, 515, 516, 517, 519, 522, 523, 525, 527, 529, 530 531, 536, 602, 603, 610, 612 624, 696. Williams & Cwibnim.gluim v. Housel, 2 Iowa, 157; Wilson v. Albright, 2 G. Greene, 125; Walters v. Washington In. Oo., 1 Iowa, 409;; Bobertson v. Hall, 3 Met. 301, 307; Holbrooh v. Wates, 19 Pick. 335 ; Weed v. Jewett, 2 Met., 698; White v. Bicha/rdson, 12 NeiyHamp. 93; Cooler. Walthall, 20 Ala. 334; Patton r. Smith, 7 Ired. 438; Bussell r. Hinton, 1 Murph. 468; Wright r. Ford, 5 N. H. 178; SwcmscoM Mechanics Go. r. Partridge, 5 Foster, 369; Bobyr. Labusan, 22 Ala. 60; Drooles r. Hildreth, 21 Ala. 334; Kettle r. Ha/rvey, 21 Yt. 301; Walkie r. McGhee, 11 Ala. 273.</p> <p>4. The laborers had a lien on the funds, at the discretion of the engineer, as against the creditors; and to the extent of said discretion, the company were trustees for the laborers, as to this fund. The right of the contractors was conditional. JosVyn v. Morrow, 25 Yt. (2 Dean) 185; Drake on Attachments, sections 515, 517, 518; Vincent v. Watson, 18 Penn. (6 Harris.) 97; Dwight v. Banh of Michigan, 10 Mét. 58; Collins v. Brighcmn, 11 N. II. 120; White v. Richardson, 12 N. H. 93; /Sharpless v. Welsh, 1 Dali. 279; Grant v. Sha/w, 16 Mass. 311.</p> <p>5. This is a legal proceeding, and not an equitable one. There must be a clear unconditional right, or else there can be no recovery. . Cushing’s Trustee process, 37; Drake on Attachments, sections 113, 125; Williams v. Railroad Go., 36 Maine 201.</p> <p>6. The garnishee, by his answer, may interpose any circumstances in reference to the rights of third persons, although they are not parties to the process; hence the reservation in favor of the laborers is properly interposed, as also, the receipt of, and subsequent arrangement with Johnson & Bennett. Drake on Attachments, sections 653, 651. Nothing is presumed against a garnishee. The business agent may answer; and such answer is received as time. If uncertain, the plaintiffs may render it more certain by closer interrogations; but the weight of evidence is on the plaintiffs. Gordon v. OooUdge, 1 Sumner 537; United States v. Langton and Trustees, 5 Mason, 290; Drake on Attachments, section 658; Head v. Merril, 31 Maine 586; Demis v. Knapp <& Shea, 8 Miss. 657; Williams S Oumningham v. Ilousel, 2 Iowa, 151; Worthington v. Jones, 23 Yt. 516. The cases of Sebor v. Armstrong, and of Cleveland v. Olapp, cited by the opposing counsel, turned upon the peculiar statute of Massachusetts, and upon the still more peculiar construction given to that statute for a short time, by the courts of that state, but from which they receded partially, in Shqam v. Handy, 22 Pick., and which construction is totally repudiated by Judge Story in the subsequent cases of Gordon v. Goolidge, and the United States v. Langton, where the principle is settled, that when the facts as stated in the answer, neither admit nor deny indebtedness, and the court are left to decide from the answer and the law, arising thereon, tlien unlesss the liability clearly appears from the answer, the garnishee must be discharged. United States v. Lcmgton, 5 Mason, 280; Gordon v. Ooolidge, 1 Sumner 587; Drake on Attachments, sections 675, 676.</p>

<p>An administrator lias no title or interest in tlie real estate of tlie decedent, subject to sale; and a sale of sucli real estate on execution, under a judgment rendered against sucli administrator, passes no title to the purchaser. .</p> <p>A party claiming title to real estate of a decedent, sold on execution, under a judgment rendered against the administrator of such decedent, while the act subjecting real and personal estate to execution, approved January 25, 1839, was in force, must show that the heirs were made parties to the judgment, before the issuing of the execution.</p> <p>■Where in an action ,of right, the defendant, in order to prove title to the premises in himself, offered in evidence the record of a judgment in the district court, against D. and E. as administrators of L., dated November 15,1842, under which an execution against said administrators, issued, and by virtue of which' the real estate of L. was sold, and also a • sheriff’s deed for said real estate, dated June 23, 1843, to which evidence the plaintiff objected, but the objection was overruled, and the evidence allowed to go to the jury; Held, That the evidence was improperly admitted.</p> <p>Where an execution, issued on a judgment against D. and F. as administrators of L., commanded the sheriff to cause to be made of the goods and chattels, and for want thereof, of the lands and tenements of said D. andE., administrators of said L., deceased, the amount of the judgment and costs recovered against them; Held, That the court could not infer from the language of the execution, that the heirs of L. were made parties to the judgment; nor that execution had been awarded against the real estate of the decedent, descended or devised to his heirs.</p> <p>Where a party to whom a devise is made, takes no beneficial interest, and the cestui que trust is not sufficiently indicated, the devise is void.</p> <p>In a devise, there is the same necessity for a cestui que trust, capable of taking the beneficial interest, and so defined and pointed out, as that there shall be no uncertainty, as there is fora properly defined grantee in a deed.</p> <p>If there is such uncertainty, as that it cannot be known who is to take as beneficiary, the trust is void; and the heir, by operation of law, will take the legal estate, stripped of the trust.</p> <p>Where L. in his last will and testament, devised as follows: “ All the real “estate of which I shall die seized and possessed, shall fall into the “possession of my wife, G., for her own use and benefit during her “life-time; at which time I direct and authorize the Right Reverend “Bishop Loras, or his successors, to dispose of my real estate, and “ apply so much thereof to the church, or to the education and main- “ tenance of poor children, as he in his wisdom, may think proper and “legal;” and where Bishop Loras, after the death of the wife of the testator, conveyed a portion of his real estate by deed; Held, 1. That the devise was void for uncertainty; 2. that no legal estate, or beneficial interest, passed to Bisliop Loras under the will; and the conveyance of the real estate by him, passed no title to his grantee; and 3. That the real estate of L. after the death of his wife, descended to his heirs, unaffected by the provisions of the will.</p> <p>Wills are to be construed so as to carry out the intention of the testator, so far as may be consistent with the rules of law; and if the entire will and all its provisions, cannot be sustained, still it is to be so construed, as to sustain and carry it out as far as may be practicable.</p> <p>Where the intention is ascertained, if it cannot be carried into effect, by the principles of the law, courts cannot do that which the testator might have done, and re-model the provisions of the will.</p> <p>Our courts of chancery have no other than judicialpower, and consequently have no jurisdiction to give effect to gifts and devises, in those cases where no particular object is designated, and no trustee named, or person appointed to select the object, and which is administered by the chancellor of England, under the prerogative power, and by virtue of an appointment of the crown, as parens patrix.</p> <p>If a testator ineffectually dedicates his property to charity, or in such manner that the devise is void, the State possesses no prerogative right to interfere, and dispose of the property, as the King of England has been permitted to do.</p>

<p>County treasurers are only requiredi to exercise reasonable diligence and care in the preservation and disposal of the public money. ■</p> <p>Where a county treasurer shows that he has, used reasonable diligence and care in the preservation of the public funds, and that, notwithstanding si}ch care, the public money has been stolen, he is not liable for the amount thus stolen.</p> <p>The duties and responsibility of a oounty treasurer, are fixed by his official bond; and from it, the measure of liability incurred by him in the preservation and disposal of the money received by him as treasurer, is to be ascertained and determined.</p> <p>Where in an action against a county treasurer, on his official bond, by a school fund commissioner, for money which,defendant had received and failed to pay over, the defendant answered, admitting the receipt of the money, and the failure to pay, and' alleging as an excuse for such failure, that the money was stolen from the treasury of the county, without any want of reasonable care and diligence on the part of said defendant, in the care and preservation of the said money, so that the same was entirely lost to the treasury of said county, and no part thereof has ever been restored, which answer was demurred to, and the demurrer overruled; Held, That the demurrer was properly overruled.</p>

<p>Section 13 of the act entitled “an act subjecting real and personal estate to execution,” approved January 25, 1839, which provides that a bond executed to stay an execution, shall be taken as a judgment confessed, against the person or persons who executed the same, 'and against their estates, and that execution may issue thereon accordingly, is not void, for the reason that it denies or takes away, a trial in due course of law.</p> <p>Where bail was entered in stay of execution, under the act of January 25, 1839, subjecting personal and real estate to execution, and the Clerk of the Court, at the time of taking and filing said stay bond, made no entry of judgment against the surety in the bond, nor was there ever any journal entry of judgment other than the one originally entered against the principal in the stay bond; and where after the expiration of the stay, execution issued against the principal and surety in the bond; Held, That the execution was valid against both the parties.</p> <p>A certificate of acknowledgment of a deed, is good, though not in the language of the statute, provided the words used substantially comply with the object and meaning of the law.</p> <p>Where a certificate of acknowledgment of a sheriff’s deed, made under the statute of January 4, 1840, to regulate conveyances, stated that “ J. H. M.., sheriff of the county of D. aforesaid, to me personally known to be the same person described in, and whose name is subscribed to, the above instrument, ¡appeared before me, and acknowledged that he executed the same as sheriff aforesaid;” Held, That it sufficiently appeared from the certificate, that the person who subscribed-the deed, subscribed and acknowledged it “as a party thereto.”</p> <p>Title to real estate, acquired under a sale on execution, cannot be defeated by the issuing of a patent to the execution defendant, bearing date subsequent to the sale by the sheriff.</p> <p>A government patent for land, relates back to the date of the purchase, and is evidence of title in the patentee from the date of the certificate of purchase, and not from the date of the patent only.</p> <p>Where an execution defendant, subsequent to the sale of his real estate on execution, obtained a patent for the land so sold; and after the patent was so issued, a second execution was levied on the same land, under a junior judgment, prior in date to the patent, and the land was sold the second time; Held, That the purchaser under the first execution, obtained a good title; and that the patent conferred upon the execution defendant, no interest in the land, which could be reached by a subsequent judgment and sale.</p> <p>Where in an action of right, the plaintiff, in support of his title, established the following facts: That on the 17th of February, 1840 judgment was rendered against S. under whom both parties claimed; that May 15, 1841, the premises were sold on execution to G.; that June 18, 1841, the sheriff executed to G. a deed, which was filed for record, August 18, 1841; that October 28, 1843, the sheriff made a second deed to G. for the same premises, which was filed for record on the same day; and that G. conveyed to the plaintiff, May 3, 1844, which deed was filed for record on the next day; and where the defendants offered to prove that, a judgment was rendered against S. in favor of one 3?. May 29, 1841; that an execution, issued on this judgment, dated June 19, 1845; that on the 16th of August, 1845, the same premises were sold under said execution, to one 3V.; that W. obtained a deed from the sheriff, November 24, 1849, which was filed for record, January 23, 1847; that December 10, 1846, a second execution issued on said judgment, under which, on the 25th of January, 1847, the interest of S. in the premises was again sold to W., who'took a second deed, May 8, 1848, which was filed for record, May 12, 1848; and that W. and wife conveyed to one of the defendants, on the 22d of March, 1852, which evidence was objected to by the plaintiff, and excluded from the jury, by the court; Held, That the evidence did not show any title to the premises in the defendants, and was properly excluded from the jury.</p> <p>An infant is supposed to be incapable of guarding his own interests; and it is the duty of a court, before it divests him of his estate, to be satisfied that he has had a full opportunity to have his day in court, by a proper and suitable guardian, and to see, notwithstanding any admission of facts, even by such guardian, that his rights are not sacrificed.</p> <p>A minor may be sued in his own name, but lie cannot appear by attorney, but only by guardian admitted or appointed by the court.</p> <p>Where in an action of right, after trial and verdict for the plaintiff, the defendants moved to arrest the judgment, and for a new trial, for the reason, that it appeared from the record, “ that a portion of the defendants were minors, and no guardian ad litem had been appointed by the court, to answer and defend for said minors, and no answer was in, or defence made,” which motion was overruled by the court; Held, That the court erred in overruling the motion.</p> <p>Where it appears from the record of a cause, that there are minor defendants who have not been notified of the pendency of the suit, and for whom no guardian has been appointed, the appellate court cannot presume that such defendants attained their majority before the time of the trial.</p> <p>In an action of right, the judgment is an entirety ; and if reversed as to one defendant, it must be as to all.</p>

<p>Questionsnot raised in, and passed upon by, the District Court, cannot be considered in the appellate court.</p> <p>A will, whenever dated or published, takes effect only at the death of the testator.</p> <p>In proceedings to prove up a will, the question is simply, whether the writing is the last will of the deceased, and whether it was duly executed and published by him; and this question, the court sho'uld try unincumbered by any other, and particularly should it be unincumbered by the question, whether the testator in his life-time, has provided for any of his children omitted by his will, and whether such omission was intentional or accidental.</p> <p>The admission of the will to probate, decides no question but that relating to its due execution and publication.</p> <p>The rights of heirs not provided for in the will of their ancestor, are to be governed by the law in force at the time of the death of the testator, and not by the law in force at the time of the execution of the will.</p> <p>The execution of a will, in whatever sense it may be considered an “act done, ” under section 31 of the Code, creates no rights, and vests no title, not even an inchoate one, in .the devisees, until the death of the testator.</p> <p>Parol evidence of the declarations of a testator, is admissible, when its introduction is required by considerations extrinsic of the will, where it tends to establish and sustain the will, or where it consists of declarations made at the time of its execution, contemporary with the act, and showing its legal quality.</p> <p>Such declarations are a part of the res gestee, and in no sense contradict, add to, or explain the contents qf the will.</p> <p>Declarations of a testator, made at the time of the execution of the will, are admissible to prove that he had already provided for those of his children for whom no provision was made by the will, and 'that such omission was intentional, and not the result of accident or mistake.</p> <p>The will of a testator cannot be excluded from probate, under section 19 of the statute of wills, approved February 13, 1843, on the ground that the testator has omitted to provide in it for any of his children, for whom he has made no provision in his life-time.</p>

<p>Adulter/ being peculiarly a crime of darkness and secrecy, in proceedings for a divorce on the ground of adultery, it is not necessary to prove the direct act.</p> <p>The criminal intercourse may be established by, or infered from, circumstances, which circumstances should lead to the adultery, by fair inference, as a necessary consequence.</p> <p>The circumstances must be such as would lead the guarded discretion of a reasonable and just man, to the conclusion of adultery.</p> <p>In order to establish adultery, such proximate circumstances must .be proved, as by former decisions, or in their own nature and tendency, satisfy the legal conviction of the court, that the criminal act has been committed.</p> <p>The circumstances are to be taken together, and when combined, must tend to establish, the criminal disposition of the party charged — a like disposition of the alleged partieeps criminis — and the opportunity to commit the act.</p> <p>Where the facts or circumstances relied upon to establish the adultery, are capable of two interpretations, one of which is consistent with the innocence of the party charged, they will not be sufficient to establish guilt.</p> <p>If the facts proved, cannot be reasonably reconciled with the assumption of innocence, but are harmonious with the assumption guilt, the court may infer such guilt.</p> <p>Under section 1482 of the Code, which provides that a divorce may be decreed, where the parties cannot live in peace and happiness together, the chancellor must be fully satisfied that the facts charged in this respect, are true, and that the moral, social and mental welfare of the parties and their children, requires a separation.</p> <p>The law contemplates and requires a cause, or a state of facts justifying a divorce, and the court is to judge whether the proof under such a charge, is such as forfeits the marriage contract.</p> <p>The power conferred upon the court in such cases, is not the exercise of a discretion arbitrary in its character, but it must be exorcised in a sound and legal manner.</p> <p>Section 1482 of the Code, does not have reference to the temporary peace and happiness of the parties, nor to their temporary welfare, but it was designed by the legislature, that the chancellor should have regard to their permanent — their general — peace, happiness and welfare.</p> <p>Under section 1482 of the Code, a divorce is not to be decreed to the wrong doer.</p> <p>If it shall appear that the parties could live together in peace and happiness, but for the unwarrantable conduct of complainant, the relief prayed for, should be denied; but if the respondent is the guilty party, and the complainant the innocent one, the' divorce should bo granted.</p> <p>So, there may cases arise under the law, where the parties are mutually at fault, in which a divorce might be decreed.</p> <p>Where a petition for a divorce on the ground of adultery, was filed on the 2d day of January, 1855, and was amended on the 25th of the same month, by charging that on account of the facts stated in the bill, and of others which have transpired since the filing of the same, the parties cannot live in peace and happiness together, and that their welfare requires their separation, for which cause, under the law then in force, the complainant was entitled to a'divorce a vinculo matrimonii; and where, on the 24th of January, 1855, the legislature passed,an act amending the law in relation to divorce, by which a divorce a mensa et thoro only was allowed for such cause, which act did not take effect until the first day of July, 1855; Held, That the case was saved, under section 26 of the Code, and that complainant was entitled to an absolute divorce.</p> <p>The act of January 24, 1855, entitled “an act to amend the law in relation to divorce and alimony,” did not repeal section 26 of the Code, which provides that the repeal of a statute, shall not affect any proceeding commenced under or by virtue of a'statute repealed.</p> <p>In eases of divorce, under section 1485 of the Code, the court may give the wife, a portion of the husband’s property, either real or personal, absolutely, and in her own right.</p> <p>But this should not be done, if the husband is in a condition to pay money, unless there is something in the situation of the wife, which -would render it equitable and just to give her tlie property, in the place of money.</p>

<p> Appeal from, the Dubuque District Court. </p> <p>Tlie plaintiffs claim to recover tbe price and value of four pianos, alleged to liave been sold and delivered to defendants, as partners. Hackley answers, and denies that any pianos were sold and delivered to himself and Adams, as partners. Adams answers, and denies any indebtedness to plaintiffs, either by himself individually, or as a member of the firm of Adams & Hackley. He averred further, that the said firm was not a general partnership, but a partnership in the newspaper and printing business only, and that the pianos were sent to A. ~W. Hackley, one of the defendants, to be sold on commission, and not to said partnership firm, nor to him, the said Adams. Issues joined on these answers, were tried by a jury. It was shown by plaintiffs, that defendants were partners in publishing the “Tribune” newspaper, in Dubuque, and in the book and job printing business. Certain letters be tween the parties, were also read in evidence, as follows:</p> <p>Dubuque, June 19, 1851.</p> <p>Messrs. Boardman & Gray :</p> <p>Dear Sirs: — Tour advertisement of pianos is in our paper, and your offer to us of an agency, we accept. But in order to make it profitable, to you, it will be expedient, if not necessary, to have one of the instruments here, as there is not one of your make in our city. Being a musician myself) and a member of tkq “Philharmonic Society” in this place — just formed — I am pretty confident that something can be effected, as the society, of which I am a member, anticipate purchasing one soon, and their action will • control the purchase of many more. 1 make these suggestions; if you think there is any advantage to be gained, please inform us; and if you choose to act upon this suggestion, forward ns one of your piano cuts, and charge us for the same, as we shall want it for our circulars. "W. A. Adams.</p> <p>Dubuque, June 19, ’51.</p> <p>"W. G. Boardman, Esq. :</p> <p>Dear Sir: — Annexed you will receive the letter of our Mr. Adams. Besides being an honorable and estimable man, and the best practical printer in the State, he stands at the head of the musical department in this city. I think you would promote your interest by shipping us, at once, a small, but select assortment of. your instruments. There are none now here on sale. * * *1 think an early and good supply, would keep out competition for a long time. But determine for yourself how many, (if any) you will send. A. "W. Hackley.</p> <p>Albany, June 28, 1851.</p> <p>Messrs. Adams & Hackley :</p> <p>Tours of the 19th is at hand, and would say in reply, we do not consign piano-fortes on commission. Our orders are constantly far ahead of our ability to supply our sales for cash or time. We have a large number of applicants for piano-fortes on consignment, which we decline. As, however, your place has attracted our attention, and believing that now is the time to introduce our instruments, and shut out (others from competition, we have, after much thought, concluded to send you one or two pianos, on the following conditions : Pianos, when delivered here on railroad or canal, will then be at your risk. On the sale of a piano, you shall, if for cash, remit us the amount by draft on one of our banks or New York — said draft payable to our order, and sent by mail. Prom enclosed price list, you may deduct fifteen per cent. If not sold for cash — on credit, ten per cent.— sold at your risk. Interest after four months.' Remittances will bear interest, on receipt. Should you prefer purchasing them out and out, we will give you six months credit, and twenty per cent, discount; and if cash be remitted on receipt of invoice, a further discount will be made of five per cent., after the twenty per cent, is deducted. These are our best terms. Should these propositions be agreeable, you will please inform us, and of the class of piano-fortes you think will sell best with you. We shall, however, forward you one or two before we can receive your answer, and you had better get them insured on the receipt of invoice. * * * * Should you continue to sell them, you will not, we presume, make any charge to us of an advertisement.</p> <p>Boardman & Gray.</p> <p>Tribune Office, Dubuque, Sept. 29.</p> <p>Messrs. Boardman & Gray:</p> <p>We have just effected a sale of your two pianos, at .six months. W e have a prospect of selling two or three more, if we had them.</p> <p>A. W. Hackley.</p> <p>The plaintiff further gave in evidence, that in addition to the two pianos, first shipped to defendants, they subsequently, and pursuant to the letter of Hackley, dated September 29th, shipped to them two others; one October 7, and the other, October 14, 1854; and that they were sold on the customary terms of plaintiffs, to-wit: Twenty per cent, discount, as stated and contained in the letter of plaintiffs to defendants, dated June 23, 1854. The pianos last shipped, were left by Hackley, one of the defendants, with a merchant in Dubuque, to be sold on commission, who paid the proceeds over to Hackley. Adams was not known in' the transaction with the commission merchant. The partnership of Adams & Hackley, was dissolved about the 25th of August, 1854.</p> <p>The defendant, Adams, asked the court to charge the jury: 1. “That before Adams can be held liable, it is necessary for plaintiffs to prove that he had knowledge of the whole transactions, and consented thereto. 2. That if the letter of Boardman & Gray, does not accept the offer and terms stated by Adams, it is necessary to bring home to Adams, a knowledge of the contents of the letter of Boardman & Gray.” These instructions were refused by the court, and defendant, Adams, excepted. The jury found a verdict for plaintiffs. A motion for a new trial was overruled by the court, and judgment rendered on the verdict. Defendant, Adams, appeals.</p>

<p>To entitle a wife to dower, there must be marriage, seizin, and the death of the husband.</p> <p>After marriage and seizin, the right of dower, is inchoate; and on the death of the husband, it becomes perfect, unless the wife has voluntarily, or othei'wise, parted with or forfeited the right.</p> <p>To give the wife a right of dower, the marriage or coverture must have continued until the time of the death of the husband; or, if not so continuing, her right will not be preserved, if the marriage was dissolved from her fault, the husband being the innocent party.</p> <p>Where there is a decree of divorce from the bonds of matrimony, in favor of the husband, for the fault of the wife, of the pendency of the application for which she had personal service, the wife, after the death of the husband, is not entitled to dower, nor to a portion of his estate, by virtue of the former marital relation, so long as such sentence of divorce remains in force.</p> <p>A decree in chancery, setting aside a sentence of divorce adjudged against a' wife, and declaring the same void, in part, or so far as to give the wife a portion of the estate of the husband, and at the same time leaving so much of the decree as dissolved the marriage contract, in force, is inconsistent, and cannot be supported either upon principle or authority.</p> <p>There cannot be two widows, lawfully entitled to dower in the same estate, any more than there can be two wives legally entitled to the support, care, protection, and name of the same husband.</p> <p>In cases of divorce, it is not necessary that the petition should be sworn to, in order to give the district court jurisdiction of the cause. The affidavit is not a jurisdictional requisite.</p> <p>Where the cause for a divorce called for by a statute, is a continuing one, if the cause has continued after the passage of the act, the period required therein for its continuance, it is sufficient, though the cause may have commenced before the enactment of the statute.</p> <p>Where a husband filed a petition for divorce, under the act of January 17, 1840, on the ground of the wilful desertion of the wife for the space of one year, which petition was filed in October, 1841, and alleged the desertion to have taken place in August, 1837; Held, That the case came within the provisions of the act.</p>

<p> Appeal from the Appanoose District Oowrt. </p> <p>This was a petition in equity, to enforce the conveyance of six acres and a fraction of an acre of land, lying on the west side of the N. E. qr. of S. E. qr. of Sec. 4, T. 69, N. R. 17 W., and in Appanoose county. The bill states, that one Lucian Bryant, son of the petitioner, held a “ claim” right ■ to two eighty acre tracts, in sections three and four, of which the above named forty acre tract was a part; that the petitioner held a “ claim ” on a tract embracing the N. W. qr. of the same S. E. qr. of sec. 4; that the claim of petitioner extended on to the said N. E. qr. of the S. E. qr. on which the claim of Lucian, in part, existed ; and that Lucian recognized petitioner’s claim and 'right. The petition then proceeds to state, that the said Lucian, being about to sell his claim to the respondent, pointed out plaintiff’s fence and line, and informed defendant that the claim of the former extended on to this forty acres; and that when the said Lucian sold to the defendant, he reserved out of said claim, the piece of land first named. It is also averred, that said Lucian informed defendant, that the plaintiff would furnish the money to enter that portion; that the parcel claimed by plaintiff, had not been surveyed, so that the line and the quantity were not precisely known; that the defendant said he should enter the land by means of land warrants, but that when he had entered it, and the quantity and description were ascertained, he would convey the said parcel to the petitioner. The bill alleges, that it was agreed that the parties should attend at some convenient time, cause a survey to be made, and ascertain the land and its quantity ; that defendant had neglected to so attend, though requested; that the plaintiff had caused a survey to be made, which gave the description and quantity stated in the petition; and that defendant had obtained the title by patent from the government, but had refused to convey, although the money for the entry of that portion of the land, had been tendered him, as well as a deed for him to execute. The cause was heard upon bill, answer and depositions, and the District Court rendered a decree in favor of the complainant. The respondent appeals.</p>

<p>The basis of a writ of error from a judgment of a justice of the peace, is the affidavit of the party complaining, setting forth the errors complained of.</p> <p>The writ of error itself, is only intended to be the means of enforcing a return by the justice.</p> <p>Where the proceedings before the justice, with all the original papers in the cause, have been certified to the district court, as though upon a return to a writ of error actually issued, the fact that the clerk of the district court had failed to issue the writ, is not a sufficient reason for dismissing the cause.</p> <p>The issuing of a writ, is a mere clerical duty, imposed upon a ministerial officer; and when it is not the basis of the action, and not necessary in order to give the court jurisdiction, if issued somewhat out of time; the court may well consider it regular, where it is issued lawfully, and upon proper authority and basis.</p> <p>The term “judgment by default,” in section 2296 of the Code, was intended to bo understood in its strictly technical sense, as a judgment for want of an appearance, in contradistinction, as well to a judgment for want of a plea, as to a judgment upon the consideration of the court, or upon the verdict of a jury.</p> <p>A motion in arrest of a judgment, for want of a plea, or a judgment upon the consideration of the ccrart, or the verdict of a jury, cannot be entertained by a justice*of the peace.</p> <p>Where in an action before a justice of the peace, the parties appeared on the day set for the trial, and the defendant demanded a jury, which was empannelled and sworn; and where, after the witnesses for the plaintiff had been sworn, the plaintiff moved the justice to render judgment against the defendant, for the amount claimed by him, for want of an answer or denial of the plaintiff’s claim, which motion was sustained, and a judgment rendered against the defendant; and where the defendant, four days after the rendition of said judgment, made oath that he had orally denied the plaintiff’s claim on the trial, and that the justice had failed to enter the denial in his docket, on which affidavit, the justice set aside the judgment rendered by him, and appointed another day for the trial; Held, That the judgment rendered by the justice, was not a judgment by default, and that the justice had no power to set it aside.</p>

<p>"Where, after a cause has been continued one or two terms, an application is made for a change of venue, on the ground of prejudice in the inhabitants of the county, such application • should show some reason for the delay in making the same.</p> <p>"Where an application for a change of venue, for the reason that the inhabitants of the county are so prejudiced against the party applying, that he cannot expect a fair and impartial trial, is based upon affidavits made by an attorney in the cause, the affidavit should show the means which the attorney has of knowing the facts, and also show why the affidavit is not made by the applicant himself.</p> <p>Section 1705 of the Code, which provides that when a corporation, company, or individual, has an office or agency in any county for the transaction of business, any suits growing out of, or connected with the business of that office or agency, may be brought in the county where such office or agency is located, as though the principal resided therein, is permissive, and not mandatory.</p> <p>The fact that a non-resident defendant, had an agent resident in another county from that in which the suit is brought, is no reason for changing the venue to the county where such agent resides.</p> <p>In an action to recover unliquidated damages, a statement of the damages claimed, annexed to the petition, is all that is required.</p> <p>Where in an action for damages, the plaintiff alleged, that the defendants agreed to manufacture for the plaintiff, and set up in working order, at 0., a saw-mill of a certain patent, and to sell to him the exclusive right to use the same in 0. township, in M. county, which was to be done by a day certain, for the consideration of six hundred dollars, to be paid at given periods; that relying upon said contract, the plaintiff was at great expense in procuring an engine and boiler, and in having the same setup, in order to run said mill; that in consequence of the failure of the defendants to make and set up said mill, the said engine and boiler had become nearly useless and worthless to plaintiff; and that the expense thereof, and of setting them up, were nearly wholly lost to the plaintiff; Held, That the damages claimed, were not remote and speculative, but legitimate and ascertainable.</p> <p>A general assignment of error, as follows: “That the court erred in rendering judgment against the appellants,” can only be made available, where the cause has been placed in a position to enable the appellate court, to reriew the finding and decision of the court below, on the facts, as well as the law of the case.</p>

This was an action commenced before a justice of the peace, and brought upon a book account. The defendant filed a set-off, of the same nature. The only question in the case is, whether the justice and the district court were correct in holding the defendant’s set-off to be admitted by the state of the pleadings.

Trespass. Plaintiff claims two thousand dollars, for tbe alleged wrongful acts of defendants, in destroying a certain toll-bridge, belonging to bim, as, also, for tearing down and removing bis fences, and for killing and destroying bis bogs,- cattle, and sheep. Tbe defendants deny tbe trespasses charged, and aver that tbe land upon wbicb tbe bridge was located, did not belong to tbe plaintiff at tbe time of the alleged trespass.

<p> Appeal from the Fremont District Court. </p> <p>This action, was brought to recover damages for an alleged malicious prosecution. The petition alleges, that the defendant filed a complaint before a justice of the peace, charging plaintiff with the crime of robbery, by using force, violence and threats to and upon the defendant, and with such force, violence and threats, talcing two sacks of wheat from the lawful possession of the said defendant, 'by means of which complaint, the plaintiff was arrested and imprisoned for three days, was put to great expense and trouble, and was otherwise injured. The petition alleges, “that the justice, having heard the allegations and the evidence, declared and adjudged that petitioner be discharged from further custody, as he was not guilty of the crime alleged, and petitioner was then and there discharged, and the said prosecution then terminated in favor of petitioner.”</p> <p>The defendant demurred to the petition, and the demurrer was ovei’ruled. He also answered: first, denying all the allegations of the petition, in detail; and secondly, justifying the prosecution instituted by him, maintaining that he had probable cause for making the charge against the present plaintiff. To this, there was a replication; and there was a trial by a jury, who returned a verdict against the defendant of five hundred dollars. The defendant appeals.</p> <p>The errors assigned, are noticed in the opinion of the court.</p>

This was an action to recover certain real property, described in the petition. Plaintiff having submitted his proofs and exhibits, defendant offered to introduce, as the first link in his chain of title, a tax-title deed, dated May 9th, 1849, signed and acknowledged by the treasurer of Cedar county. To the introduction of this deed, plaintiff objected — the objection was sustained — and judgment being for plaintiff, defendant appeals.

This is a bill in equity, to set aside certain deeds of real estate, alleged to have been made with intent to defraud the complainants, and to perfect their titlejunder a sheriff’s sale. The respondents having failed to answer, the bill was taken as confessed, and a decree rendered in accordance with tbe prayer of tbe bill, from which the respondents appeal.

Suit on promissory note for one thousand dollars, due April 1st, 1855. Defendants -filed their answer at the June term, 1856, of the Chickasaw district court. A demurrer to this answer was sustained, and defendants had ninety days within which to file their amended answer. At the November term succeeding, the amended answer having been filed, it appears from the record entry of the clerk, the parties appeared, and the cause proceeded to trial.

Ajypeal from the Jefferson District Court. Tbe plaintiff recovered judgment against tbe Fairfield and Mt. Pleasant plank-road company, for one thousand two hundred and thirty-four dollars and sixty-two cents, on the 17th of October, 1853, on warrants or orders drawn on the treasurer of the company, by O. Negus, as president of the same, and countersigned by ¥m. E. Groff, as secretary.

This was an action against Harbut and six others, to recover damages for breaking the plaintiff’s close, and taking and carrying away goods and chattels, to-wit: a quantity of wine, brandy and whisky, with the vessels containing the same, of the alleged value of six hundred dollars. Damages laid at eight hundred dollars. All the defendants pleaded not guilty.

J. M. Sawyer & Go. commenced their action in the Scott district court, against Z. S. Webb & Co, procured an attachment, and had Chas. T. Webb notified as garnishee.

In Equity. Tbe complainant seeks to enforce tbe specific execution of an agreement to convey to bim certain lots, six in number, in tbe city of Burlington; to set aside a sheriff’s sale of tbe lots, under a judgment in favor of respondent, and to redeem the same from the said sale; and for perpetual injunction against two suits at law, commenced by respondent, to recover possession of the lots.

Tlie plaintiffs, averring that their chief business is that of commission agents for the sale of real estate, claim damages of the defendants for an alleged breach of the following agreement: “ In consideration of one dollar, to us paid by Messrs. “ Attix, Noyes & Co., we hereby grant them exclusive “ authority to negotiate a sale for us, of the property be- “ low described, for two months from date, and thereafter “ till withdrawn, in writing, on the face hereof; they to be…

Bill in chancery, praying a decree for the specific performance of an agreement to convey certain real estate, and for an injunction to stay proceedings at law, in an action, commenced by defendant, to recover possession.

Tliis action was brought upon a bond in the usual form, in tlie penal sum of one hundred dollars, with a condition to make title to a certain forty acres of land. The plaintiff had paid fifty dollars, as the consideration for the title. There was a petition, a demurrer, and an amended petition. These are inartificially drawn, and leave it doubtful whether the action was intended to be brought for the penalty, or as upon a covenant contained in, or implied by, the condition.

This was a bill in equity, to recover certain real estate in Jones county, or to set aside the conveyances thereof, and is placed upon the grounds: First, That the conveyance from the complainant was… Held: in conformity with the requirements of the statute; that a majority of the stockholders, were not represented; that, by the law under which they pretended to act, they had no right to consolidate with another company, and that such attempt was unauthorized and void.

The appellant was indicted and convicted of keeping intoxicating liquors to sell, and fined twenty dollars and costs, from which judgment he has appealed to this court. On the trial, the defendant demurred to the indictment, which was overruled. The grounds of the demurrer are stated in the opinion of the court.

This is an action of replevin. The petition of plaintiff is substantially as follows: It claims one thousand dollars which is alleged to be due, and for cause thereof states that plaintiff’ is entitled to the present possession, as of his own property, of the goods and chattels therein set forth, in the possession of said defendant, the value thereof being five hundred and fifty-nine dollars and seventy-eight cents.

This was an action commenced before a justice of the peace, to recover damages, alleged to have been committed by defendant’s cattle upon the corn and other grain of plaintiff, and for work and labor performed, goods sold and delivered, &e. On a trial in the district court, there was a verdict for the plaintiff for live dollars damages, for the injury done by the cattle, and in favor of the defendant on the other items of the claim.

The contract was in the German language, and to the petition was annexed an English translation. Defendant answered, denying that plaintiff had complied with or fully completed his contract, as alleged in the petition, and setting up, other mat, ters in avoidance of plaintiff’s claim, but he does not deny the execution of the contract upon which the suit is brought.

Suit on three promissory notes — the first for the sum of $694,50, payable to plaintiff, and due July 21st, 1856; the second and third for the sum of $333 each, payable to H. C. Tatum or bearer, — one of them due January 21st, 1856, and the others due July 21st, 1856, and assigned to plaintiff.

Mandamus. Ira Brackett filed his information in the district court of Eloyd county, alleging that he had entered into a written contract with the defendant, to do certain work, and furnish certain materials, in and about the erection of a court house for said county. He avers that he has fully complied with the contract on his part, and that there is due him thereon, a large sum of money, naming it.

This is an action to recover for the use and hire of a steamboat.

Plaintiff declares upon a promissory note. Judgment by default for the amount thereof, with interest, and defendant appeals. The facts in the case will be found in the opinion of the court.

Tbe defendant was indicted under section 2586, of tbe Code, wbicb is in tbe following language: “If any person seduce and debauch any… Held: “ that previous chaste character, as used in the act to punish seduction as a crime, meant actual personal virtue in the female; and to sustain an indictment, it is necessary that she should have been chaste and pure in conduct and principle, up to the time of the commission of the offence.” Shall not the identical words in our…

This action was brought to recover upon two promissory notes for one thousand dollars each, and to foreclose a mortgage given to secure the same. Defendant answers, admitting the execution of the notes and mortgage, as averred in the petition.

This was au action brought to recover certain instalments upon the defendant’s subscription to the capital stock of the plaintiff’s company. The petition avers, that on the 10th day of August, 1853, defendant subscribed for five shares of stock, to be paid in such instalments as should be called for, not exceeding five per centum per month, and on condition that the grading of the road should be commenced in one year.

This was a complaint under section 2723 of the Code, filed before a justice of the peace in Floyd county, the substance of which is as follows: “ For that the defendant on, &c., at, &c., in the county aforesaid, with divers other individuals, played at the game of cards, and risked money upon said game, and said defendant then and there made a bet of money upon a game of cards, which money was won upon said game, and paid over to the person winning the same.” There was a…

In Chancery. On the 6th of October, 1843, one Harris recovered judgment against the defendant Hart, in the district court of Johnson, county, who, at the time, owned lot 3 in block 42, in Iowa City. On the 22d of July, 1844, this lot, together with lot 4 in the same block, was sold under a plumes execution, issued on said judgment, to the plaintiff therein, for three hundred dollars.

Arbitration. — By articles of submission, these parties submitted a certain matter in controversy to arbitrators. The agreement contained this provison: “ Said arbitrators to be governed by the laws in and of Iowa.

This action was brought upon a promissory note, made by Lydia and Francis Rodman. Francis Rodman made default. Lydia answered, setting up that before, and at the time of making the note in the plaintiff’s petition mentioned, she was, and still is, the wife of said Francis. To this answer, there was a demurrer, which was sustained ; and judgment being rendered for plaintiff, the defendant, Lydia Rodman, appeals.

The defendant was indicted under section 2586 of the Code, which provides for the punishment of any person who shall seduce and debauch an' unmarried woman, of previously chaste character. The indictment charges the defendant, in the precise words of the above section, without the addition of any other terms in the description of the offence, with having committed the crime in relation to one Ann Hanson.

Indictment for murder in the second degree. The defendant was found guilty of manslaughter, sentenced to the penitentiary for five years, and from this judgment sues out this writ of error. All the facts material to an understanding of the questions decided, will be found in the opinion of the court.

This was an action of replevin, to recover the possession of five barrels of “ high wines,” of the alleged value of $75.

<p>Where a witness resides within the state, but in a different county from the place of trial, his deposition may be taken either upon notice, or written interrogatories.</p> <p>If he reside without the state, a commission should issue to the officer or commissioner taking the same.</p> <p>If within the county where the trial is to take place, then no such commission is necessary.</p> <p>If within the state, hut in a different county, then the party may pursue either of the two methods.</p>

The defendant was indicted for an assault, with intent to inflict a great bodily injury. He filed his pleas of not guilty, and also of former conviction. There was a trial; verdict, “guilty of an assaplt and battery;” judgment thereon, and defendant prosecutes this appeal. For the facts material to the decision of the case, see the opinion of the court.

<p> Appeal from the Johnson Dist/rict Court. </p> <p>This action was brought to recover one hundred and seventy dollars, and to establish a mechanic’s lien on part of lot five in block fifty-eight, in Iowa City, Johnson county, Iowa, and was based upon an alleged contract, that the plaintiff should perform the carpenter’s work of building a house on the above lot, for the agreed price of one hundred and sixty dollars, the defendant furnishing the material. The defendant pleaded, first, a denial specifically, and secondly, a tender of eighty-five dollars, part of the sum claimed, and avers that he brings the same into court. Replication, trial by jury, and verdict for plaintiff, for one hundred and twenty-five dollars. The defendant appeals.</p>

Suit on a subscription to the capital stock of a railroad company. The plaintiffs aver that defendant subscribed for one share of stock, to be paid in such instalments as should be called for by the board of directors, not exceeding five per centum per month; and that the whole amount subscribed had been called for, in instalments of five per centum per month, according to the charter of the company, of which dne notice had been given to defendant.

. Indictment for aiding to conceal stolen property. At the August term of the district court for Davis county, 1857, the defendant was found guilty, and his motion for a new trial being overruled, judgment was rendered on the verdict. The only evidence tending to connect the defendant with the commission of the offence, was the testimony of one Dyson, as follows : “ Myself and Rhodes set two horses in Missouri.

This was a suit to recover upon a subscziption to the capital stock of the Burlington and Missouri River Railroad Company, alleged to have been made by defendant, under the name of G. W. Marchand & Co., to be paid in such instalments as should be called for by the board of directors, not exceeding five per centum per month.

This action was commenced before a justice of the peace, and by the defendant appealed to the district court. In that court judgment was rendered for defendant, and plaintiff now appeals. Held: that where a party declares upon a special contract, he must succeed upon it, and cannot recover upon the common counts. The law was never different from that held by this court, as above cited, and I apprehend this court will not change it in this case.

The petition and notice in this case, claim of. defendants, the sum of five hundred dollars, as money due upon a promissory note. There was an appearance, and plaintiff recovered judgment for the sum of six hundred and sixty-one dollars, sixty-two cents. Defendants appeal.

This action was brought to recover damages for an assault and battery upon the plaintiff by -the defendant. The jury rendered a verdict in favor of the defendant, from which the plaintiff appeals. /The questions made in the case, arise upon the instructions of the, court below, which will be found in the opinion of the court.

The plaintiff instituted bis suit before a justice of tbe peace, to recover the amount of a promissory note, dated June 14th, and due November 1st, 1852.

<p> Appeal from the Des Moines District Cowt. </p> <p>At the October term of the district court for Des Moines county, 1857, an indictment was found by tbe grand jury, against a person described as, “ a man in Turner Hall, whose name to the grand jurors is unknown.” By virtue of a warrant issued on this indictment, the sheriff arrested John Geiger, and returned the warrant as follows : “ Executed this writ, by bringing before the court a man supposed to be the person meant.” A motion for the discharge of Geiger from custody, was overruled. He then moved the court to quash the indictment, which motion was overruled, and being arraigned upon the indictment, and required to plead, he gave his name as John F. Geiger, and pleaded not guilty. The cause being submitted to the court, the defendant was found guilty, and sentenced to pay a fine of fifty dollars. From this judgment, he sued out this appeal.</p>

The errors asssigned in this case, relate alone to the order of the court dissolving the attachment. This motion to dissolve,, was made and determined at the April term, 1856, of the district court of Hardin county. At the same term, notice of appeal was regularly given by the plaintiff.

<p> Appeal from, the Delaware District Oowt. </p> <p>This was an action of trespass, commenced before a justice of the peace, for injuries to plaintiff’s crops, by the stock of defendant. On the trial in the district court, the court instructed the jury, that “ cattle and hogs are free commoners, and before the plaintiff could recover, he must show that his fence was such as would turn ordinary cattle.” The defendant recovered his costs, and plaintiff appeals.</p>

<p>The legislative power of the State of Iowa, is vested in the general assembly, and can be exercised by that body alone.</p> <p>A law can no more be repealed, than it can be made, by a vote of the people.</p> <p>The word- “operation,” as used in the sixth section of the first article of the constitution of the state of Iowa, which provides that all acts of a general nature, shall have a uniform operation, means the practical working and effect of a law. Wright, C. J. dissenting.</p> <p>The provisions of the act entitled “an act to license and regulate the sale of malt, spiritous and vinous liquors,” approved January 29, 1857, which provide that the question of licensing the sale of spiritous liquors, shall be submitted to the .vote of the qualified electors of all the counties of the state, are not a sufficient compliance with section six of the first article of the constitution of the state.</p> <p>The act licensing and regulating the sale of malt, spiritous and vinous liquors, approved January 29, 1857, is not so framed, that a portion of it, liable to constitutional objection, can be adjudged invalid, and the remainder of the act be permitted to stand.</p> <p>The act entitled “an act to license and regulate the sale of malt, spiritous and vinous liquors,” approved January 29, 1857, is unconstitutional and void.</p>

<p> Appeal from the Potkmwta/mie District Court. </p> <p>The petition in this case, claims of defendant the sum of one hundred and sixty-one dollars and fifty-two cents. The cause of the claim, as set out, is a certain judgment rendered in favor of plaintiffs and against the defendant, in the district court of "Wappello county in this state, on the 11th day of February, 1850, for one hundred and fifty-eight dollars and thirty-three cents, and three dollars and nineteen cents costs. Plaintiff concludes his petition by averring, that an action has accrued to him to demand and have from the,,said defendant, the said .sums, amounting to one hundred and sixty-one dollars and fifty-two cents, and asking judgment for that amount, with interest and costs. An affidavit accompanied this pleading, which states the rendition of the judgment in Wappello county, as stated in the petition; that it has not been satisfied; and that there .is still due thereon, the sum of one hundred and sixty-one dollars and fifty-two cents. Defendant appeared, and moved to dismiss the cause, for the reason that the district court had no jurisdiction of the cause. This motion was overruled. Beyond this, there does not appear to have been any pleading on the part of defendant, and the cause being submitted to the court, judgment was rendered in favor of plaintiffs, for the sum of two hundred and twenty-seven dollars and forty-six cents, from which defendant appeals. This proceeding was commenced March 20, 1857, and judgment rendered May 22, of the same year.</p>

Indictment for selling spirituous liquors, contrary to law. A motion to quash the indictment, was overruled by the court. Defendant then pleaded not guilty. The jury returned a verdict of guilty, and defendant was adjudged to pay a fine of $75, and to stand committed until the same was paid. From this judgment, he appeals.

The defendant was indicted for selling intoxicating liquors, viz: whisky, at his residence in the county of Clark, on the tenth day of April, A. D. 1857, to one Edward Harrison, contrary to Irw. The defendant demurred to the indictment, which was overruled. The defendant having been convicted, filed a motion in arrest of judgment, which was also overruled. The grounds of the demurrer and motion in arrest, are sufficiently stated in the opinion of the court.

At the May term of the Dubuque district court, 1855, James Eishner recovered a judgment against the steamboat Hamburg, for the sum of $246.90, for wages. During the pendency of this action, and before judgment, the defendants bought the steamboat. After the judgment was recovered, Eishner assigned the same to the plaintiff, with the demand on which it was founded.

On the 25th of May, 1857, on the application of the plaintiffs, the damages sustained by defendant, by the appropriation of his land for the use of the railroad company, were assessed by commissioners appointed by the sheriff, under the fourth section of the act of January 18, 1853.

On the application of the plaintiff, the damages sustained by defendant, by the appropriation of his land for the use of the railroad corporation, were assessed by commissioners appointed by the sheriff, in accordance with the fourth section of the act of January 18,1853. The assessment was made May 26, 1857; on the 23d of June thereafter, the defendant filed with the sheriff, a recognizance for an appeal to the district court from the assessment of damages.

This action was brought in the Muscatine district court, to recover damages for an injury occasioned to plaintiff, (Bashalia Baldwin,) from the negligence and carelessness of the servants and agents of said defendant. The petition charges, that said company was, at the time of said injury, the owner of a railroad located in this state, running from Davenport to Iowa City, and was then and there engaged in running a certain train of cars on said road.

In August, 1851, Hurlburt filed Ms bill in chancery against Thayer and others claiming an interest in certain property therein described, and averring that said Thayer, without right, claimed to own and control the same. At the time of filing the bill, in accordance with its prayer, a receiver was appointed, who was required to enter into bond.

This is a bill to enforce the performance of an alleged contract for the sale of a lot in the town of Dubuque, Iowa.

Tn an action commenced before a justice of the peace, the plaintiff claimed of the defendant one hundred dollars for killing his bull. The cause was taken by appeal to the district court, and on the trial, evidence was given by plaintiff, tending to show that the bull was killed by being castrated, and that defendant was the person who had committed the act.

Plaintiff claims upon a promissory note, dated January 18, 1856, and due January 1, 1857. Defendant answers, denying the indebtedness as claimed — admits that he executed the promissory note declared on, but denies that it is the property of plaintiff.

Upon tbe petition of tbe complainant, these parties were divorced on tbe 6th of October, 1854.. By this decree, she-was allowed $500, as alimony, the custody of their son Philip, then about three years of age, and the sum of one hundred dollars per year, for his support and maintenance.

The plaintiffs sued Adair, and attached a hack and a set of harness. The defendant, with Crane, as his surety, procured a discharge of the property, by giving a bond, in accordance with section 1876 of the Code, for the re-delivery thereof, or its value, in twenty days after the rendition of judgment, if one should be recovered against the defendant.

This was an action to recover the amount of a promissory note, and to establish a mechanic’s lien on lot unmber ten, in block sixty-two, in the city of Muscatine, commenced on the 27th day of April, 1857. The note reads as follows : “Muscatine, Iowa, April, 6,1857.

This action is brought to recover upon a contract, by which defendants undertook to cut, pack, salt, and prepare for market, at their packing house in Muscatine, about one thousand hogs. The petition charges that the said meat was cured and handled in such an improper, insufficient, and negligent manner, that a large portion of it was entirely spoiled and lost.

This was a proceeding to obtain an alteration in a county road. Swafford, with twenty other persons, presented a petition to the county court of Johnson county, for a change in the course of a road in said county, called the “ J. T. Pope Eoad,” in a portion thereof not exceeding one mile in length. A remonstrance against the change was afterwards presented by McCune and twenty-eight other persons.

The petitioners allege that in February, 1857, the defendant, Strasser, rented of his co-defendant, Hudson, a storehouse, for the term of fourteen months, at the rate of fifty dollars per month, payable monthly; that he took possession of the premises, and placed a stock of goods and merchandize therein, for sale; that the lease was in writing, and Strasser had paid Hudson three months’ rent, when, on the 26th of May, 1857, being indebted to the plaintiff for his stock of…