Volume 50 — Iowa Reports

It is alleged in the petition that the district township of Lenox, in Iowa county, is composed of four sub-districts; that the plaintiff is a resident of sub-district No. 1, and that defendants' are members of, and comprise, the board of directors of said district township; that at the annual meeting of said board, and the electors of said district township, held on the 12th day of March, 1877, the said electors voted upon and passed a resolution talcing the charge and…

The petition in this ease was filed August 31, 1875, and alleges that plaintiff was duly incorporated in 1864, with a capital stock of one hundred thousand dollars, represented by one thousand shares. The articles of incorporation limited the indebtedness of the company to twenty-five thousand dollars. The affairs of the company were managed by five directors, elected yearly.

This is an action to recover damages for injuries to her person and means of support, which the plaintiff alleges that she has sustained from the sale of intoxicating liquors to her husband by the defendant. The plaintiff claims one thousand dollars actual and one thousand dollars exemplary damages. The answer is a general denial. There was a jury trial, and a verdict and judgment for plaintiff for four hundred dollars actual and six hundred dollars exemplary damages.

Action to recover the immediate possession of personal property. There was a trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

The plaintiff claims that he is entitled to the possession of lot number 4, in block 1, range 7, Buell’s addition to the town of Lyons, under and in virtue of two tax deeds executed to him, and which are made exhibits to the petition.- One of these deeds was executed on the 20th day of October, 1874, by E. R. Lucas, county treasurer, as successor of the marshal of Lyons city, on account of a sale made on the 25th day of March, 1871, by said marshal, for delinquent city taxes…

The defendants were indicted and tried for the crime of causing a nuisance. David Smouse, Sr., and David Smouse, Jr., were acquitted-. G. W. Smouse was convicted. Pie now appeals to this court.

In 1852 the plaintiff became the owner of the north-east quarter, the east half of the north-west quarter, and the northwest quarter of the north-west quarter of section 29, township •82 north, of range 3 west, containing two hundred and eighty acres. October 4, 1873, Ludwig Burning obtained a tax deed for all of said property, and on the 2d day of January, 1874, he conveyed it to J. W. Drury.

Action to recover for loss of time and expenses incurred in an action in replevin, in which this plaintiff was defendant, and this defendant was plaintiff. There was a trial by the •court and judgment for the defendant. The plaintiff appeals.

The plaintiff commenced an action before a justice of the peace against W. J. and W. H. Bentley, by serving upon them a notice signed by the justice, as follows: ’ “You are hereby notified that the above named plaintiff claims of you the sum of forty-four dollars and ninety-two cents, with interest since February 5, 1875, as justly due him from you on a promissory note.” The note which was filed with the justice is as follows : “$44.92.

These cases are submitted together as arising out of the same state of facts and involving substantially the same questions of law. The plaintiff holds by assignment a claim for a tax voted in 1870 in Liberty and Knoxville townships, in Marion county, to aid in the construction of the Albia, Knoxville & Des Moines Railroad.

Action for labor and for damages for breach of contract, whereby the defendant had agreed to employ the plaintiff to perform other labor. The plaintiff claims that he is entitled to recover the sum of two hundred and twenty-five dollars. There was a trial by jury, and verdict in favor of plaintiff, for fifty dollars. The plaintiff appeals.

One Peek made a wager with Wallace on the result of an election, and the money was placed in the hands of the defendant, as stakeholder. To recover the money deposited by Peek is the object of this action. Whatever rights the latter had belong to the plaintiff as his assignee. There was a trial by the court, a finding of facts, and judgment for the plaintiff. The defendant appeals.

, This is an action to restrain by injunction the enforcement of a judgment recovered by the defendant Lance Walker against the plaintiff, on the 2d day of October, 1877, before one J. T. Jarrett, a justice of the peace for Julien township, Dubuque county.

These eases are presented on one abstract, under an agreement upon which they were tried together in the court below, and are to be presented in the same manner to this court. The plaintiffs seek to recover damages for injuries sustained in being ejected from a car of defendant after having purchased tickets to a station upon the railroad.

Action upon a promissory note. There was a verdict and , judgment for plaintiffs. Defendant appeals. The facts of the case appear in the opinion.

Action at law. There was a judgment for defendant upon demurrer to plaintiff’s petition. Plaintiff appeals. The facts of the case are stated in the opinion.

This is an action upon an insurance policy executed by tbe defendant to the plaintiff for the recovery of loss sustained by the burning of the insured property. The cause was tried by the court. Judgment was rendered for plaintiff for two thousand three hundred and six dollars and ninety-six cents. The defendant appeals.

The plaintiff claims that the garnishee had property in his hands belonging to the debtor Farrar. The court so found, and rendered judgment for the value. Other facts are stated in the opinion. The garnishee appeals.

party. The defendant, in his answer, admits that the services were rendered, but says that they were rendered under a special contract, and that the plaintiff has been fully paid.

An injunction was allowed upon a petition filed in the Howard District Court. A motion to dissolve the injunction, which. was brought before the judge of the District Court at chambers, was overruled. From this decision defendants appeal-

<p>X. Surety: change of contract : release. The surety has the right to stand upon the terms of the original contract, and any material change therein without his consent, affecting the subject-matter of the contract even to a slight degree, will exonerate him.</p> <p>2. -: contract : signature in official capacity. Where a party signs a contract in his official capacity he is hot liable individually, and an action may be maintained thereon against a surety in the name of the party or corporation he represented.</p> <p>3. -: school district. While a school district, in whose favor a bond to secure a contract had been executed, might not have power directly to release the sureties, it had authority to change the contract, and the effect of the change would be the release of the sureties.</p>

Action upon an account for eight hundred? and thirty-two dollars and fifty-two cents, which account accrued more than five years prior to the commencement of the action. The plaintiff, however, alleges that the same was taken out of the statute of limitations by the written admission of the defendant that the debt was unpaid. The answer was a general denial. There was a trial without a jury. Judgment for plaintiff. Defendant appeals.

<p>Appeal from an Order made by Hon. D. O. Richman, Judge of the Circuit Cou/rt of Scott County.</p> <p>The plaintiffs were indicted, in the State of Massachusetts, for the crime of “cheating, by false pretenses, with intent to defraud.” On the requisition of the Governor of said State the Governor of Iowa issued a warrant for the arrest of plaintiffs, and their delivery to an agent appointed by the Governor of Massachusetts, for the purpose of taking them to the last named State. The defendant, as sheriff, made the arrest, and, while in his custody, the plaintiffs applied for and obtained a writ of habeas corpus.</p> <p>At the hearing the plaintiffs were discharged from custody, and the defendant appeals.</p>

Action in chancery for divorce. There was a decree dismissing plaintiff’s petition, from which she appeals. The facts upon which the points ruled in the case are based will be found in the opinion.

The petition states that the plaintiffs recovered in said, court a judgment against James Mulligan, and caused an execution to issue therein, which was placed in the hands of the defendant Leddy, who at the time was sheriff of Dubuque county; that at the time said execution was placed in the hands of said Leddy, Mulligan was the owner of personal property in Dubuque county, out of which the execution aforesaid could have been satisfied; but that said Leddy, in violation of…

Action oh a policy of insurance upon a flouring mill, against loss by fire or lightning, to the amount of two thousand dollars, issued to J. P. McKissick; the loss, if any, to be paid to his wife, the plaintiff in this action. There was a judgment for plaintiff. Defendant appeals. The facts of the case, involved in the question of law ruled by the court, appear in the opinion.

Action upon five promissory notes. The answer avers that the sole consideration of the notes was “two billiard tables sold by plaintiff to defendant in Iowa, with the knowledge, understanding, agreement, intent and purpose on the part of plaintiff and defendant that the same were to be and should be used in the town of Decorah, Iowa, as implements for gambling, in violation of the statutes of Iowa, and that in pursuance of such intent the tables were so used.” There was a…

Action to foreclose a mortgage given by the defendants to the plaintiff’s testator, Edward Negus, to secure three promissory notes, for six hundred dollars each, executed by the defendant Elizabeth Pulliam, the wife of the defendant George W. Pulliam. The notes were dated August 13, 1873, and made payable in one, two and three years respectively. The first note was paid and surrendered. The action is brought upon the last two.

The plaintiff’s intestate, Isaac Cook, brought this action to recover for professional services rendered as an attorney at law. The case was referred to a referee, who found that the intestate’s services were of the value of four thousand five hundred dollars. The.court confirmed the report, and rendered judgment in favor of the intestate for that amount,, with interest. The defendant appeals.

The plaintiff alleges that he is the absolute owner of one bay mare, of the value of one hundred and twenty-five dollars, and one two-seated sleigh, of the value of sixty dollars; that said property was taken by Yanorsdol, sheriff, under' a bill of sale executed by plaintiff to Shadbolt & Boyd, to secure the payment for goods for which plaintiff might become indebted during the year 1876, in the nominal sum of one thousand dollars; that the debt for which said bill of sale…

The defendants were indicted, tried and convicted for the larceny of a bull, the property of one John Kohl. They appeal to this court for a reversal of the judgment against them.

Action to replevy a team of horses. There have been two trials in the court below. In the first the plaintiff was successful. Upon appeal the ease was reversed. 45 Iowa, 239. The opinion was filed October Term, 1876. During the pendency of the appeal the court-house in Howard county was burned, and the original papers destroyed, including the replevin bond.

The defendant J. T. Johnson and one Soper were partners in the hardware and grocery business, at Chariton, Iowa, under the firm name of Soper & Johnson. On the 21st day of August, 1877, Soper sold to Johnson his interest in the partnership. By the contract of sale Johnson agreed to pay the partnership debts. This action was commenced August 28, 1877, by the plaintiffs, who are creditors of Soper & Johnson, and the stock of goods was attached as the property of Johnson.

An information was filed before a justice of tbe peace charging the defendant with the crime of assault and battery. He was convicted, and appealed to the District Court, where he was again convicted, and now appeals to this court.

The indictment charged that the defendant, being a married man, had carnal knowledge of and sexual intercourse with Margaret D. Maloney, and was, therefore, guilty of the •crime of adultery. Having been convicted the defendant appeals.

Action to recover for personal injuries inflicted by defendants. Tbe plaintiff made application in vacation for a change of venue, on account of the prejudice of the inhabitants of the county against him, which was overruled. From this order he appeals. Further facts of the case appear in the opinion.

The defendant, C. W. Hudson, was jointly indicted with Frank L. Bailey and L. C. Iiickock, for the larceny of forty-five bushels of wheat from the granary of one William Hickman. The indicted parties pleaded not guilty, and demanded separate trials. The District Attorney elected to first try the defendant C. W. Hudson. He was tried, convicted, and sentenced to the penitentiary for one year. He appeals.

<p> Appeal from Harrison District Cowrt. </p> <p>Action in equity to restrain tlie collection of certain taxes. The plaintiffs claim to be the owners in severalty of certain real estate in Harrison county, and that the tax books of said county for the year 1875 show that a certain special ditch tax was levied upon said lands. It is alleged that plaintiffs’ lands were not benefited by said ditch, and that the digging thereof was not a public benefit, nor conducive to the health or public welfare of the citizens of the county; that no petition signed by any citizens asking the establishing of said ditch was at any time filed and presented to the board of supervisors; that plaintiffs were at no time served with a notice of the time and place whore objections to the levy of said tax could be heard; and that, although residents of said county, they had no knowledge of such tax levy until long after it was made, and that they were thus deprived of the right to be heard and to appeal.</p> <p>It is further averred that there was neither an assessment nor levy of said tax, and that if any levy was made it was verbal, and, therefore, void.</p> <p>It is prayed that a writ of injunction may issue restraining the defendants from collecting said tax, and that upon a final hearing said injunction may be made perpetual.</p> <p>The answer, in addition to a general denial, sets up — First, “that plaintiffs cannot maintain an action because there is a misjoinder of parties and causes of action, in that plaintiffs have no joint interest in the land in controversy, but own different and distinct portions of the same in severalty.” Second, “that plaintiffs are estopped from maintaining this action in that objection should have been made before the •completion of the ditch.”</p> <p>- There was a hearing upon written evidence and a decree for the plaintiffs. Defendants appeal.</p>

The plaintiffs filed their amended and substituted petition, alleging that on the 17th day of April, 1876, the plaintiffs, made a parol contract with the defendant.

<p>. 1. Vendor and Vendee: change of possession. Where a person, sells a field of com standing- upon his farm, and the vendee does not commence to harvest it, nor otherwise visibly to take charge of the corn or control of the field in which it stands, the actual possession is not changed, within the meaning of the statute providing that “ no sale of personal property, where the vendor retains actual possession, is valid against existing creditors or purchasers without notice,” unless the instrument evidencing- the sale be recorded.</p>

This is an equitable action to restrain the collection of taxes for the year 1875 upon lands of the plaintiff. There was a decree in the court below declaring said taxes illegal and void. Defendant appeals.

Appeal from Buchanan Circwit Cowrt. Action in chancery. There was a decree granting the relief prayed for in plaintiff’s petition. Defendants appeal.

Action to enforce a mechanic’s lien. The debt was contracted by the defendant Dunlap for materials furnished in the erection of a building upon the premises in question, which premises have since become the property of the defendant Moore. Judgment was taken against Dunlap by default. Moore defends against the lien. The last item in the plaintiff’s account was furnished May 24, 1875. No statement for a lien was filed until November 11, 1875.

J The defendant was indicted for the crime of rape, and convicted of an assault with an intent to commit rape, and now appeals to this court.

Circuit Court. Action to quiet title to real estate. Hugh and Thomas Alexander were at one time the owners of the real estate in controversy. The plaintiff is the widow of Hugh Alexander, who died in 1857. A dower interest in the real estate accrued to her on the death of her husband. The county treasurer, in pursuance of a tax sale, conveyed the premises to Albert Evans, and he to the plaintiff.

The defendant was convicted of grand larceny, and sentenced to the penitentiary for the term of twelve months. He now appeals to this court. The facts of the case, involved in the points ruled in the opinion, are found therein.

, Action to recover damages by reason of plaintiff’s premises being overflowed by water caused by an alleged defective sewer. A jury was waived, and there was a trial by the court. At the request of the parties the court made the following special findings of fact: 1. That plaintiff is the owner of lots 25 and 38, in the original town of Council Bluffs, and that he has owned the same for more than five years before the commencement of this action. 2.

The petition in substance alleges tKat the defendant furnished large quantities of goods and suits of clothing to the State for the penitentiary located at Eort Madison, and that, combining and colluding with Seth H. Craig, warden, he took unto himself and received large gains and profits, which were excessive, unjust and fraudulent. The petition prays judgment for five thousand dollars, and asks the issuance of a writ of attachment.

Action to recover possession of certain real estate in the city of Decora'h. The legal title is in the plaintiff. The defendants filed an equitable answer, averring that the defendant S. 0. Wilson purchased the premises of the plaintiff, executed h-is promissory notes for the purchase money, and took a bond for a deed; that the defendant Sarah L. Wilson has acquired the rights of S. 0.

Action on a promissory note given in part payment of a threshing machine which was sold with a warranty, a breach of which was pleaded as a defense. There was a trial by a jury. Verdict and judgment for the defendant. The plaintiff appeals.

The petition states that the defendant, in the year 1863, and several years prior thereto, levied and assessed taxes on certain real estate described in the petition, and the same being unpaid and delinquent, the “defendant, by its treasurer, or collector of taxes, claiming to be thus ordered, authorized and directed by the corporate officers or authorities thereof, and representing and declaring that it, the said defendant, had, under the laws of the State of Iowa, full…

. Action on a judgment rendered by the Circuit Court of •Mercer county, Illinois. In his answer the defendant alleged that the court rendering the judgment had no jurisdiction of his person, because no summons nor original process of any kind had ever been served on him. There was a trial by jury, and verdict and judgment for the defendant. The plaintiff appeals.

The plaintiffs are the widow and heirs of Thomas Donaho, deceased.

On the 3d day of February, 1874, George B. Smyth & Co., which the evidence shows is in fact George B. Smyth,' drew and duly indorsed, in Keokuk, a draft payable to their own order on Cragin & Co., New York city, for twelve thousand dollars, due four months from date. On the same day the estate of B. F. Moody purchased this draft from George B. Smyth & Co., paying therefor eleven thousand five hundred and ninety dollars.

Action to establish a mechanic’s lien. The petition show» that the defendant county entered into a contract with certain persons to erect a building for county purposes; that the contractors employed the plaintiff to furnish the brick for the building; that the plaintiff furnished the brick, and that. the contractors are indebted to him therefor in the sum of two hundred and fifty-eight dollars and fifty cents.

Action upon a promissory note. The defendants were defaulted, and afterward, on the 12th day of September, 1877, the default was set aside and the defendants required to answer in twenty days. On the 7th day of May, 1878, the defendants moved for an order for change of place of trial to Grundy county, upon the ground that the defendants were residents of that county.

Action to recover the value of the part of a partition fence allotted by the township trustees to defendant, to build and keep in repair, which he failed to build, and which was constructed by plaintiff. The fence divided the lands of the parties to the suit.

Action to recover the amount of a special assessment alleged to have been wrongfully collected from the plaintiff by the defendant. The special assessment was made for the cost of improving a street in front of the plaintiff’s property.

Gustav L. F. Overdieck made his will as follows: “Know all whom it may concern, that Gustav L. F. Overdieck, of the county of Scott, and State of Iowa, being of sound and disposing mind and memory, do hereby publish and declare the following'to be my last will and testament: “1. It is my will that my just debts and funeral expenses shall be paid out of my estate, as soon after my death as it can be lawfully done. “2.

<p>1. Contract: oefer : vendor and vendee. Au offer to sell upon certain conditions with respect to price and warranty, unless otherwise specified or withdrawn, is to be deemed a continuing one for a reasonable time.</p>

Action on two accepted drafts and an account. The defendants pleaded a counter-claim. There was a trial by jury, verdict and judgment for defendants. The plaintiff appeals..

Action upon an alleged special contract for sérvices rendered by plaintiff to defendant.

Action in replevin. There was a judgment for defendants. Plaintiffs appeal. The facts of the case fully appear in the opinion.

Ajopeal from Black Hawk District Court. Action to foreclose a mortgage. The plaintiffs claim to be the owners of a certain promissory note executed by the defendant, the Waterloo Agricultural Works, for three thousand dollars, and of a mortgage executed to secure the same upon certain real estate. The plaintiffs received the note as collateral security from one McCall, who was at the time secretary of the defendant company. McCall claimed to be the owner.

The parties to this action all claim liens upon the Keosauqua North & South Railroad. The said road was originally intended to be of standard gauge. N. C. Terrell & Co., a partnership composed of N. C. Terrell and C. H. Fletcher contracted. with the railroad company to build the road. After doing some grading and purchasing some ties, etc., the work was suspended for want of means to prosecute the same.

The petition and amended petition of the plaintiffs, George B. Loring & Co., in substance allege that about August 8, 1877, they made a parol contract with defendants Isaac Small ■and Frank C. Tubbs' to furnish them bridge lumber for use in the construction of seven bridges, which the defendants Small & Tubbs had contracted to build for Plymouth county, Iowa, at the agreed price of one thousand two hundred and fifty ■dollars, and which were built in July, August and…

The plaintiff, and one James W. Clark, in 1872, purchased of the defendants.a grist-mill situated upon South Timber creek, in Marshall county, paying therefore the sum of eleven thousand dollars. He avers that he and James W. were induced to make the purchase by false and fraudulent representations in regard to the character of the stream which furnished the motive power.

Action upon an order in these words: '“$1,000. Ottumwa, February 1, 1876. “To Charles F. Blake, Treasurer Ottumwa Water-Power Company : “Pay to the order of D. B. Sears & Son one thousand dollars, with ten per cent interest, and charge to account. “W. B. Bonnieield, President. “J. 0.

' Action at law to recover upon the covenants of warranty in a deed executed by defendant’s intestate, conveying certain land to plaintiff. The petition shows that the title fade ' and that plaintiff was evicted from the land. The plaintiff filed a motion to strike from the files- the answer of defendant, which was sustained. Defendant standing upon his answer, a judgment was rendered against him, from which he appeals.

Action in equity to set aside a sale on execution of the homestead of plaintiffs.

Action upon a promissory note brought before a justice of the peace. On the return day the defendant, at the hour set for trial, appeared, but the plaintiff did not. Thereupon the justice dismissed the action, and made an entry in the following words: “The plaintiff did not appear, nor any one for him. The defendant appeared in person.

<p>I. PER BECK, J., ROTHROCK, OH. J., CONCURRING.</p> <p>1. Pleading: demurrer : more specific statement. Where, in an action on a promissory note, tlie defendant pleads’ want of consideration, without stating the facts upon which the defense is based, the answer is assailable, not by demurrer, but by motion for more specific statement.</p> <p>g. Promissory Note: consideration: oral agreement. A contemporaneous oral agreement may be the consideration for a promissory note, and a failure to perform the agreement will constitute a failure of the consideration of the note.</p> <p>3. Corporation: powers. Where the articles of a corporation do not clothe it with power to raise and control fundsfor a specified purpose, it has no authority to take a note executed to promote süch a purpose, and the collection of such a note cannot be enforced by the corporation.</p> <p>II. PER ADAMS, J., SEEVERS AND DAY, JJ., CONCURRING.</p> <p>4. Promissory Note: consideration. A note executed to an educational institution as a gift, upon tlie strength of -which it has assumed responsibilities and incurred liabilities, is not without consideration.</p> <p>5. -: -. An agreement, made at the time of the execution of the note, that the fund in favor of which it was executed should not be diminished, cannot be regarded as constituting- the consideration for the note.</p> <p>6. Corporation: powers. The fact that plaintiff’s articles of incorporation did not authorize it to raise an endowment fund, should not be regarded as a prohibition upon the raising of such a fund.</p>

Action to foreclose a mortgage. The answer admits the allegations of the petition, but it is stated therein that Maria, A. Crampton, whose name before her marriage was Maria A. Avery, and by whom the mortgage was executed, only had a life estate in the mortgaged premises, and the court was asked to provide in the decree that such life estate only-should be sold. Such a decree was entered and the plaintiff appeals.

Court. Action in replevin. The defendant held the property as sheriff, under a writ of attachment issued by the clerk of the Circuit Court. The petition so showed. The defendant demurred to the petition on the ground that it showed upon its face that the action is against an officer of another court, which court had jurisdiction in the premises. The court sustained the demurrer, and rendered judgment in favor of the defendant. The plaintiff appeals.

Action at law upon a promissory note. The cause was tried to the court without a jury, and a judgment rendered for defendant. ■ Plaintiff appeals.

<p>1. Statute of Frauds: promissory note: debt of another. The statute of frauds will not exempt from liability one who has received a part of the consideration of a note, notwithstanding he was not a signer thereof.</p>

The petition states that the plaintiff and E. L. Clarke were candidates for the office of county treasurer at the election held in Yan Burén county, in the year 1877, and— “5. That at the election precinct of Keosauqua, Yan Burén county, Iowa, there were cast for said office of county treasurer votes as follows, to-wit: R. L. Clarke, - - - - ■ - - - 204 Thomas Rankin, ------ 109 Clark, -.- - - - - - - 2 “6.

<p> Appeal from Wapello District Court. </p> <p>Indictment for seduction. There was a verdict of guilty, judgment, and the defendant appeals.</p>

Action upon a promissory note for one hundred and seventy-five dollars, executed by J. Q. Buffington & Co., payable to the order of W. C. Knox & Son. The copartnership of J. Q. Buffington & Co. was composed of J. Q. Buffington and H. C. Wortham.

The plaintiffs are eight independent school districts of Graham township, Johnson county. This action was brought to recover of the defendant, an independent school district in said township, certain sums of money which it is claimed are due the plaintiffs respectively.

The plaintiff and defendants entered into articles of copartner sbip, as follows: “Article of agreement made and entered into this 20th day of October, A. D. 1869, by and between John Montgomery and Andrew McKey, of the county of Mahaska and State of Iowa, of the first part, and E. J. Evans, of the county and'State aforesaid, of the second part— “Witnesseth: That the said John Montgomery and Andrew McKey have bought of John White, of the county and State aforesaid, the…

There was evidence tending to show that sparks from one of the defendant’s engines set.fire to an elevator belonging to some person other than the plaintiff, standing about twenty feet from the road. Erom this elevator the fire was communicated to the plaintiff’s elevator standing about seventy feet therefrom.

' The petition in this cause was filed on the 10th day of January, 1876. The action is in equity, and involves the validity of a tax title. Defendants appeared and filed a mo■tion in said cause on the 22d day of March, 1876.

The petition alleges, in substance, that on the 7th day of March, 1873, plaintiff entered into a written agreement with the defendant E. B. Sloan, whereby the defendant E. B. Sloan was to exclusively sell the Wilson sewing machine in the town of Creseo and vicinity, and to pay the plaintiff thereon thirty-three and one-third per cent from the established retail price of the machines to be fixed by the president or board of directors-of plaintiff; that to secure the plaintiff…

Appieal from Warren District Coicrt. On the 10th day of January, 1877, there was filed in the office of the clerk of the district court of Marion county an indictment, as follows: “1. The grand jury of the county of Marion', in the name and by the authority of the State of Iowa, accuse the defendants, John Brannon and Eliza Flanders, of the crime of buying, receiving and aiding in concealing stolen money, committed as follows: The said John Brannon and Eliza.

Action to recover certain moneys received by the defendant as assistant treasurer and general agent of the Iowa Railroad Contracting Company, which it is alleged he has converted to his own use, and it is alleged the claim has been assigned to the plaintiff.

The plaintiff is a judgment creditor of a corporation known as The Co-operative Store of Morning Sun and vicinity. The defendants are stockholders. This action is brought to subject the property of the defendants, as such stockholders, to the payment of the judgment.

This is a proceeding to revive and enforce a judgment against property in the hands of the heirs of one deceased, which, it is alleged, was owned by their ancestor in his lifetime. A demurrer to the petition was sustained, and plaintiffs appeal. The facts of the case appear in the opinion.

On the 1st day of April, 1876, the plaintiffs brought suit before a justice of the peace, as the indorsees of a negotiable promissory note for one hundred dollars, executed by defendant to one E. J. Bruce, dated February 1, 1876, due sixty days after date, with interest at ten per cent from maturity.

<p>I. Conveyance: mistake or law : equitable jurisdiction. Where, under a mistake of law, a conveyance by a guardian was made to include an interest of his wards, which he and the grantee were alike ignorant of, it was held that equity would relieve the wards of the consequences of the mistake.</p>

Action at law -upon two promissory notes. There was a verdict and judgment for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

Action to quiet title to a certain tract of land in Webster City.' Both plaintiff and defendants claim title through one Andrew J. Brewer. The plaintiff alleges that Brewer and his wife executed a deed of the land to the Dubuque & Pacific Railroad Company, and deposited it as 'an escrow in the hands of one W. C. Wilson.

This action was commenced against the defendants A. Gill & Co. upon two promissory notes, for one hundred and forty-two dollars and eight cents each. An attachment was issued, and ■on the 12th day of May, 1876, was duly levied upon a stock of goods which the return states is the property of A. Gill & Co., in the possession of A. Gill.

This action is founded upon a written instrument, of which the following is a copy: • “Charles City, Iowa, June 18, 1872. “We, the undersigned, do hereby agree to pay to Dr. William Palmer, chairman of the building committee of the First Baptist Church, of Charles City, Iowa, the sum set opposite óur respective names, for the purpose of liquidating the debt on said church; and if the whole amount is not raised to pay the debt before the day of dedication, said subscription…

Action in equity to foreclose a mortgage which was given to secure two promissory notes. Said notes were executed on the 28th day of February, 1877 — one due in five years and the other due in ten years after date, payable to the order of plaintiff, with interest payable annually, at the rate of nine per cent per annum.

Action for the recovery of certain sums of money which it is alleged were expended by plaintiff in the support and medical attendance of a pauper who, it is alleged, had a legal settlement in Wright county at the time such support and medical attendance were furnished. There was a trial by jury, and a verdict and-judgment for the plaintiff. Defendant appeals.

The defendant was tried, convicted and sentenced to imprisonment in the penitentiary for the term of eight years, for the crime of breaking into a store in the night-time with intent to steal therefrom. He appeals to this court for a reversal of the judgment against him.

Action in chancery to quiet the title to land described in the petition. There was a decree granting relief sought for in á cross-bill .filed by one oi; the defendants. Plaintiff appeals. ' The fact's of the case appear in the opinion.

Action to recover for medical services rendered by plaintiff' to a pauper. The services were rendered at the request of the trustees of the township where the pauper resided. The-plaintiff’s bill was presented to the board of supervisors, who refused to allow the same.

Action on a promissory note. The- cause was tried to the, court without a jury, and judgment rendered for plaintiff. Defendants appeal.

• This action was originally brought against F. E. Hills and Joseph Brown on two notes, amounting to one thousand six hundred and thirty-six dollars and forty-four cents and interest, executed by E. E. Hills and E. C. Sehwabkey, secured by mortgage on certain property and woolen mill machinery therein, and on a note of one hundred and fifty-six dollars executed by F. E. Hills.

On the 19th day of November, 1875, the Joliet Iron& Steel Company commenced an action against the Chicago, -Clinton & Western Eailroad Company, and the Iowa Southwestern Construction Company, for the establishment and enforcement of a lien against the defendants, and against the line of railroad described, for seventy-five thousand two hundred and seventy-four dollars and nineteen cents, on account of materials furnished the Iowa Southwestern Construction Company for the…

The plaintiff claims of the defendant six hundred dollars and interest, and alleges that the decedent*, her husband, while in life, was a member of the Schiller Lodge, No. 11, Independent Order of Odd Fellows, of Dubuque, and complied fully with all the requirements laid down in the charter, by-laws and rules of said association; that the articles of incorporation, by-laws and rules of said corporation provide that, upon the death of a member who has complied with the…

Action for injunction to restrain the defendant from violating a contract entered into by him with the plaintiff.

Action for a personal injury. The plaintiff was a brakeman and baggage-master on defendant’s road, and was injured while in the act of attempting to couple a freight ear to a baggage ear.

Appedl from Des Moines District Cowrt. This is an action brought by the several plaintiffs to establish and enforce a number of distinct mechanics’ liens. By consent of parties all the issues in the cause, both of fact and of law, were referred to C. L. Poor, Esq. On the 18th day of February, 1878, the referee filed his report, finding the facts and conclusions of law as follows: “1.

<p>1. Conveyance: covenants of warranty : mortgage. The mortgagee of real estate is entitled to the protection of the covenants of warranty under which the mortgagor purchased.</p> <p>2. -: equitable jurisdiction. B. purchased land from H. with covenants of warranty, and afterward executed a mortgage thereon to plaintiff. Through several intervening conveyances the title of K. passed to D., when it was found that the title acquired from Ii. had wholly failed, whereupon, in ignorance of the existence of the mortgage of plaintiff', H. paid to D. the amount of his liability on the covenant of warranty: Held, that in an action to foreclose the mortgage equity had jurisdiction to require D. to repay so much of the amount received as was necessary for the protection of H.</p>

Sarah B. Eaton was the owner in fee of certain real estate in Decorah, which she, with her husband, the defendant H. H. Eaton, occupied as a homestead. She died intestate February 21, 1876, without issue. The family consisted of the husband and wife only. On the 25th day of May, 1876, the defendant, the First National Bank of Decorah, recovered a judgment against said H. II. Eaton for two hundred and twenty-seven dollars.

This is an action of the heirs at law of Eebecea Stevens, deceased, for partition of the S. J of the S. W. J, and S. W. J S. E. J of section 24, township No. 82, range 27, and the north half of lot 5, section 22, township 82, range No. 26, being in 'all one hundred and forty acres of land.

The facts in this case, so far as. material to the questions involved, are as follows : In April, 1857, the defendant Henry Crawford bought a land warrant and borrowed some money of the partnership firm of Taylor, Richards & Burden, for which he gave Ms promissory note for two hundred and ninety-four dollars, payable in one year.

On the 26th day of September, 1877, the defendant McCallister, as plaintiff in an action for malicious prosecution, recovered against J. D. Gray and the defendant in this action John Marquis, a judgment for one thousand two hundred dollars and costs of suit, in the Circuit Court of Washington county. In this action the defendants Earley & Kelley were attorneys for the plaintiff, William McCallister.

Action in chancery to quiet the title of certain lands. The relief sought by plaintiffs was refused, and the title of the lands was declared to be in the defendant. Plaintiffs appeal. The facts of the case appear in the opinion.

Action at law. Yerdict and judgment for plaintiff. Defendant appeals. The facts of the case involved in .the questions decided are found in the opinion;

The defendant was indicted for the murder of his wife’s father, one Henry Kelly, and was convicted of murder in the-second degree, and sentenced to the penitentiary for twenty-five years. He appeals.

Action to foreclose a deed of trust executed by the defend-. ants Savery and wife to secure an alleged loan of money. The defendants deny that any money was loaned; deny that the plaintiffs are the real parties in interest; plead a former adjudication and the statute of limitations. There was a judgment and decree for plaintiffs. Defendants appeal. -

Appeal from Decatur District Court. The defendant was convicted and sentenced for the crime of keeping a nuisance, and now appeals to this court.

Action for divorce and alimony. There was a decree for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

. In June, 1876, the defendant contracted with plaintiffs foi; one of their “Advance Combined Reapers.” The contract was in writing, and contained the following warranty: “ These machines are all warranted to be well made, of good material, and durable, with proper care. If, upon one day’s trial, the machine should not work well, the purchaser shall give immediate notice to said McCormicks, or their agent, and allow time to send a person to put it in order.

This is an action upon a promissory 'note for the sum of one hundred and fifty dollars, executed by the defendant to plaintiff. .

Mahala Boyer, daughter of John Burner, died in 1864, leaving two children, who are the wards of the plaintiff, surviving her. In the same year — but whether before or after the death of said Mahala does not appear — John Burner adopted said children, as provided by law, and in 1876 died without having made a- will. Said Burner left several other children surviving him.

<p>1. Homestead: verbal agreement. Tlie liomestead cannot be subjected to liability for debt upon a mere verbal agreement.</p> <p>2. -: -: confession of judgment. An agreement in a confession of judgment to waive tbo protection of exemption laws, and to permit execution to issue against any property of the judgment debtor, homestead included, is not such a written contract as will subject the homestead to liability.</p>

■ Mandamus to compel defendant to remit the interest and' penalties upon taxes on personal property assessed against, plaintiff, as required by chapter 29, Acts Fifteenth General Assembly. A demurrer to the petition was overruled, and. defendants refusing to further plead, judgment was rendered, for plaintiff. Defendants appeal.

On the 30th day of October, 1877, there was filed in the office of J. W. Pennington, a justice of the peace, an information in these words: “State of Iowa, Allamakee County, )• 5 State of Iowa, JohJ Doe. 1 $ pn jugj¿ce>g (]our^ before J. W. Pen-R “The defendant is accused .of the crime of peddling dry goods, shoe-laces, notions of various kinds, in the county aforesaid, without license.

Motion to' correct a record. The action was brought to foreclose a mortgage given to secure a promissory note executed by the defendant Fulton J. Smith. In the execution of the mortgaged Fulton J. Smith was joined by his wife, Marion Smith. She was made defendant in the action, but no personal judgment was claimed against her. Judgment and decree were taken by default.

This is an action upon a bond executed by the defendant; for the appearance of Martin Dooley to answer to an indictment found against him for nuisance. The cause was tried by the court, and judgment was rendered against the defendant for two hundred dollars, the amount of the bond. The defendant appeals. The facts are stated in the opinion.

On the 30th day of July, 1873, the defendant John N. Woolly entered into a written contract with plaintiff, agreeing as agent to devote his time to the sale of sewing machines for the plaintiff.

<p> Appeal from Pocahontas District Court. </p> <p>On the 24th day of May, 1877, an agreement to submit a. controversy to arbitration was duly executed by Benjamin Millard, Fillmore Millard and H. A. Gorham, as follows:</p> <p>“Whereas, a controversy pending between Fillmore Millard and Benjamin Millard and H. A. Gorham, of the town of Fonda, county of Pocahontas and State of Iowa, in relation to a partnership in the mercantile business now existing between them, with a view of dissolving and finally adjusting all matters connected with said partnership, now, therefore, we, the undersigned, Fillmore Millard and Benjamin Millard and H. A. Gorham, aforesaid, do hereby submit the said controversy, and all matters connected therewith, to the arbitrament of A. J. Whitfield, M. B. Keefér and George M. Dorton, all of the said town of Eonda, or any two of them, and we mutually covenant and agree to and with each other that the award to be made by the arbitrators, or any two of them, shall in all things herein be well and truly kept and observed ; provided, however, that the said award be in writing, under the hands of the said A. J. Whitfield, M. B. Keefer and G. M. Dorton, or any two of them, and ready to be delivered to the said parties in difference, or to such of them as shall desire the same, on the 15th day of June next; and it is hereby further agreed by and between said parties that judgment in pursuance of the award may be entered in the District Court within and for the county of Pocahontas, State of' Iowa, aforesaid, to the end that, all matters now in controversy between them in that behalf shall be finally determined.”</p> <p>On the 4th day of June, 1877, the award of the arbitrators was filed in the office of the clerk of the District Court of Pocahontas county.</p> <p>On the 11th day of September, 1877, Fillmore Millard filed a motion to set aside the award. The court sustained the motion, and ordered that the matter be re-submitted to the arbitrators.</p> <p>On the 31st day of January, 1878, the arbitrators made the following report, duly signed by all of them:</p> <p>“Add now, on this 31st day January, 1878, this case coming on for further hearing, the following proceedings were had: Present, A. J. Whitfield, M. B. Kéefer and George M. Dorton.</p> <p>“H. A. Gorham appeared by counsel, Charles D. Goldsmith, and Fillmore Millard by counsel; --Lee.</p> <p>“Now know ye that we, the arbitrators mentioned in the said submission, and the matters of arbitration having been re-submitted by order of his honor, E. R. Duffie, Judge of the District Court in and for the county of Pocahontas and State of Iowa, and having heard the allegations of the parties, and having examined into the affairs in controversy of said parties, and hearing the testimony, do make this award in writ-ting, and find that Benjamin Millard has invested in the partnership the sum of sixteen hundred and seventy dollars and eighty-six cents ($1,670.86); that Fillmore Millard has invested in the partnership the sum of eight hundred and twenty-two dollars and fourteen cents - ($822.14); and H. A. Gorham has invested in the partnership the sum of seven hundred and twenty-six dollars and fifty-nine cents ($726.59); that under an agreement of the above-named parties to dissolve the partnership, and that the said Fillmore Millard and Benjamin Millard shall continue in the business, and take control of the entire amount of the assets of the firm, the said Fillmore Millard and Benjamin Millard now have in their hands the sum of five thousand three hundred and seventy-nine dollars and forty-two cents ($5,379.42); that H. A. Gorham has in his hands the sum of - dollars; that under said agreement said Benjamin Millard and Fillmore Millard are jointly entitled to two thousand four hundred and ninety-three dollars ($2,493), and that H. A Gorham is entitled to the sum of seven hundred and twenty-six dollars and fifty-nine cents ($726.59), and that the said Benjamin Millard and Fillmore Millard have in their hands property in the amount of seven hundred and twenty-six dollars and fifty-nine cents ($726.59) belonging to H. A. Gorham.</p> <p>“We find that H. A. Gorham is entitled to, and the said Fillmore Millard and Benjamin Millard shall pay or cause to be paid to, the said’H. A. Gorham the sum of seven hundred and twenty-six dollars and fifty-nine cents ($726.59), and interest thereon at the rate of ten per cent per annum from May 24, 1877; and that the said Benjamin Millard and Fillmore Millard shall retain the property in their hands under their agreement in full satisfaction of their claims; and that' • said H. A. Gorham shall have possession and right of control as a partner in said partnership until the said Benjamin Millard and Fillmore Millard shall have accepted this award in writing and filed said acceptance in writing with the recorder of deeds for record in the county of Pocahontas and State of Iowa. Costs taxed equal among the three parties.”</p> <p>On the 26th day of January, 1878, Benjamin Millard filed a motion to set aside the report of the arbitrators and for their discharge. The court overruled this motion, and rendered judgment on the -award in favor of plaintiff and against the defendants for seven hundred and twenty-six dollars and interest. The defendants appeal.</p>

Action on a policy of insurance against loss or damage by fire. The policy was dated October 18, 1876, and insured the property for one year. The loss occurred on the 4th or 5th day of November, 1876. There was a trial by jury, judgment for plaintiff, and defendant appeals.

<p> Appeal from Dubuque Circuit Court. </p> <p>The defendants, on the 17th day of September, 1878, owned and occupied a certain building in the city of Dubuque as a livery stable, being upon the north-west corner of Clay and Eleventh streets, fronting upon Clay and extending westward to an alley. The plaintiff is the owner of the lot next west, fronting upon Iowa street, and extending eastward to the •alley. Upon this lot is situated his residence, which he has •owned and occupied from a time antecedent to the occupation of the defendants’ premises for a livery stable. On the 17th •day of September, 1878, a part of the livery stable'was consumed by fire, by reason whereof the premises eeased to be used for a livery stable, and the use had not been resumed at the time of the commencement of this action, but the defendants were about to rebuild and resume such use.</p> <p>The plaintiff avers that the occupation of the premises for a livery stable has been a nuisance, and asks that it be so decreed, and that the defendants be restrained by injunction from such use, and from rebuilding. The court rendered a decree enjoining the use, but not the rebuilding. The defendants appeal.</p>

On the 3d day of September, 1875, an indictment was found against one Michael Shanahan. On January 7th, 1876, the defendant, Kraner, executed a bond for the appear.ance of Shanahan at the next term of the District Court thereafter. The defendant appeared and pleaded guilty to the-crime charged in the indictment.

On the 22d day of October, 1870, the defendants held certain mortgages upon the real estate and chattel property of ' the plaintiff, and on that day the following written agreement was entered into by the parties thereto: “It is stipulated and agreed between the Farmers’ & Merchants’ Bank of Washington, Iowa, and the First National Bank of Mt. Pleasant, Iowa, as follows: “statement. “The said Farmers’ & Merchants’ Bank holds a mortgage of B. M. McCoy and wife for eight…

Action at law upon a bail bond for the appearance of one Hillier, who was arrested on a warrant issued upon an indictment. The cause was submitted to the court without a jury and judgment was rendered for plaintiff. Defendant appeals.

The plaintiffs are the owners of a building situated on the ■corner of Second street and Sixth avenue, in the city of Clinton. During the spring and summer of 1877 they excavated a •portion of Sixth avenue opposite the side of said building, and into Second street, to the depth of from'six to eight feet, and some eleven or twelve feet in width. The area thus formed was intended for their own private use, in connection with the basement of their building.

Action in equity to compel the defendant Ellis, as sheriff of Dallas county, to execute to the plaintiffs a deed of certain land in that county. The land was sold under execution, in pursuance of a decree of foreclosure of a mortgage, and was purchased at the execution sale by the execution creditor, who has since died intestate, leaving the plaintiffs as his heirs. The time of redemption has expired, but the sheriff refuses to execute a deed.

Action to foreclose a mortgage which it is claimed by the defendant was executed, or at least negotiated, without authority; that plaintiff is not a bona fide holder thereof, but that he procured the same through fraud and collusion with the officers of the corporation defendant. The defendants further claim that plaintiff is a stockholder in said corporation and is largely indebted thereto for such stock.

The plaintiff avers that in March, 1874, he took charge and management of defendant’s business, which consisted of a retail grocery store in Waterloo, Iowa; that there was then a large amount of indebtedness due and owing by defendant to various parties for goods purchased by it; that to pay off such indebtedness, at the request and by the direction of defend, ant, plaintiff borrowed for the use of defendant, and used in paying off such indebtedness, one thousand dollars,…

In the year 1872 the defendant Leebrick, being the owner of a lot in the city of Burlington, executed an agreement with one Tate to sell the same to him, upon payment of a certain sum. Afterward Tate, not having paid the purchase money, sold his interest in the property to the defendant'Dean West, and in December, 1874, Leebrick executed to said West a new bond for a deed, agreeing to convey the lot to him upon payment of three hundred and fifty dollars, and interest.

<p>1. Insurance : liability upon premium note. Where the charter of art insurance company authorized it to conduct its business wholly or m part upon the mutual principle, or wholly or in part upon the cash principle, and a policy recited that the insurance in question was made in consideration of a certain specified sum as cash premium, and an instalment note payable absolutely at specified times, held, that recovery could be had upon the notes without proof of losses and an assessment as upon the mutual plan.</p> <p>2.--: company may reinsure. It is competent for an insurance company to reinsure upon its risks, and it may transfer its property, including premium notes, as a consideration therefor.</p> <p>3. -: construction of statute. A failure to comply with the provisions of chapter 138, Daws of 1868, will not prevent a company from indemnifying itself by reinsurance for risks already assumed.</p>

Action at law to recover the value of certain personal property taken and appropriated by defendant, which plaintiff claims belonged to him. The cause was submitted to the court without a jury, and a finding of facts made upon which a judgment was rendered for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

This is an appeal from a ruling sustaining a demurrer to,, and dismissing a petition for, a new trial. Th'e trial was in an action brought to foreclose a mortgage executed by the defendant Millie L. Rawson, to secure certain alleged indebtedness of her husband, Charles E. Bawson. Defense was made in the action upon the ground that the defendant Millie was wrongfully induced by the plaintiff to execute the mortgage.

The defendants Wolfe, Carpenter & Angle contracted with the Burlington & Missouri River Railroad Company to build a portion of its road, including sections 79 and 80. Afterward they sublet the building of the sections named to the plaintiff Fish, and the defendant Neely.

<p>1. Judgment: notice. Where, in an action to set aside a judgment on the ground that it was rendered without service upon the defendant, the petition set out the decree, which recited that there had been service of notice, such finding was presumed to be correct, in the absence of proof to the contrary. •</p> <p>2. -: agreement To sell. A contract to purchase a judgment for an agreed consideration does not give the party agreeing to purchase it such a property therein that he can incumber it, as between him and the party proposing to sell, and a third party purchasing the interest of the judgment creditor takes it free of any equities save those growing out of the original contract.</p>

The object of this action is to obtain a writ of mandamus compelling the defendant board of directors to select a site and erect thereon a school-house, in pursuance of a vote of the electors of the district township. The District Court granted the relief asked, and the defendants appeal.

This is an action to recover damages for the alleged fraudulent representations of defendants, by -which plaintiff was induced to purchase of defendants certain real estate.

The plaintiff was in the employment of defendant as yardmaster at Council Bluffs. Part of the duty devolving upon him by reason of such employment consisted in the making up of freight and passenger trains, and in the coupling of cars in making up said trains. On the 29th day of March, 1877, he was injured, as he alleges, by reason of the negligence of the defendant and its employes, without any contributory negligence on his part.

The plaintiff brings this action to quiet his title to a certain lot in Council Bluffs. The defendant, for answer, alleges that the land was, under proper proceedings on the part of the defendant, condemned for school-house purposes, as provided by law, and asks that plaintiff’s petition be dismissed. The cause was submitted to the court on an agreed statement of facts, as follows: “1.

Action to foreclose a right of redemption from a tax sale. The property is in the city of Des Moines, and was sold under a city ordinance December 21, 1863, for the taxes for years 1857, 1862 and the years included. This action was commenced February 17, 1877. The defendant derived title through a sale made upon the foreclosure of a mortgage subsequent to the tax sale.

' , The plaintiff shows in his petition that he is the owner of •certain real estate, including buildings and machinery in the city of Council Bluffs,, used by him in the business of pork.paeking; that in 1876 the city determined to change the course of .a certain creek flowing through the city by the construction of a ditch; that the construction /of, the ditch was desirable for tbe city as a protection to its health and for its safety,' aiid desirable for the plaintiff as…

Action in equity to set aside a' confession of judgment. The plaintiff avers that it was obtained by fraud, and given for a consideration that was wholly usurious, and also avers, payment. The plaintiff was indebted to the defendant upon a promissory note 'for one thousand dollars, bearing ten per cent interest-.

The petition states that defendant is a corporation engaged in mining coal, and that one Haven is president and superintendent thereof; that plaintiff was an employe of the company, and while in its service he was greatly injured, without fault on his part, but through the fault and negligence of one “Watson, a bos§ or foreman of defendant, having charge and control of the plaintiff and John Peterson.” To this petition there was a demurrer, which being sustained, the…

Certiorari. The petition alleges that the board of supervisors of Black Hawk county, of which defendants are the members, illegally and in excess of its authority added to the assessment of moneys and credits of the city of Cedar Falls, for the year 1877, one hundred per centum, whereby plaintiff, who was assessed as a tax payer of said city by the assessor thereof, upon moneys and credits in the sum of seven hundred and fifty dollars, was charged upon the tax books of the…

Append from Gass Circuit Court. The plaintiff, claiming to be an employe of defendant, whose duty it was to couple and uncouple cars, was injured while engaged in the performance of his duty, without fault on his part, but through the fault and negligence of the defendant, as he claims.

The plaintiff filed his amended and substituted petition as follows: “1. That on the-day of December, 1877, the plaintiff was the absolute and unqualified owner of the following described real estate situated in Dallas county and State of Iowa, fo wit: The southeast'quarter of section No. thirty-six (36), in township No. eighty-one (81) north, of range No. twenty-seven (27) west of the fifth P. M., Iowa.

The defendant was indicted for obstructing a certain public highway duly laid out and established according to law, was tried, convicted, and sentenced to pay a fine of five dollars and costs. The defendant appeals.