Volume 6 — Iowa Reports

Bill in chancery, to foreclose a mortgage, and correct a mistake in the description of the land therein set out. The notice was served by the sheriff of Yan Burén county, who made the following return thereon : “ This notice came into my hands, July 8, 1856, and was served, same day, on F. A. Whitescarver, by reading the same to him, and giving him a copy thereof; served on Jane R. Whites-carver, August 19, 1856, by reading the same to her.

Rill to foreclose three mortgages on certain real estate in Johnson county, executed by John E. Heyne and wife, to Rell and Hull, to secure the payment of certain promissory notes, which mortgages and notes had been transferred to the complainant. The. first mortgage is dated August 4, 1846; the second, October 23, 1846 ; and the third, August 5,1847. After the execution of the mortgages, and on the first of September, 1849,'Heyne and wife conveyed the premises to Schrceder.

In Chancery. The cause was heard on bill and answer, which show the facts to be briefly as follows: On the first of March, 1856, Lot A. Chorn and Isaac Dickerson, were doing business as a mercantile firm, in the city of Oskaloosa, and on the 6th of that month, made their notes to complainants for goods sold and delivered.

Chadwick replevied two horses from the possession of Miller. The record states that a jury was impanneled and sworn; the evidence of both parties was adduced; the cause was argued; the court instructed the jury; and a bailiff was sworn to take charge of them.

On the 5th of September, 1845, the plaintiff recovered judgment in the Johnson district court, against the defendant, and one William JB. Snyder, for the sum of about one hundred and twenty dollars. In February, 1857, he filed his petition to revive said judgment, and obtain execution against the defendant — averring that in December, 1845, the said William 13. Snyder departed this life.

Wilmington, as administrator of tbe estate of Michael S. Beaver, brought his action of replevin for four head of work cattle, in the possession of the defendant, Sutton. It is admitted that the property belonged to said Beaver, at the time of his death. It is also admitted that he left a widow, who afterwards intermarried with one Moore.

Suit on a promissory note. The defendant answered, denying tbe indebtedness claimed, and tbe execution of tbe note. Judgment was rendered for tbe defendant, on certain motions and a demurrer to tbe answer, filed by tbe plaintiff, from which be appeals. Tbe other facts, appear in tbe opinion of tbe court.

This cause was originally tried before a justice of the peace, and judgment rendered for the defendant. The plaintiff, on the same day, filed his recognizance for an appeal to the district court, with sureties approved by the justice, and the appeal was allowed.

In an action against Eranklin and. Frederic Stiles, on a joint promissory note, made by them, tbe plaintiffs asked a writ of attachment' against the separate property of Eranklin Stiles, alleging, as cause why the writ should issue, that the said “ Franklin had disposed of his property, with intent to defraud his creditors.” The writ was issued, and levied on the property of the said Franklin Stiles, who appeared and moved the court to quash the writ for the reasons: 1.

Suit by attachment. In the affidavit for the writ, the word “ not” was omitted, in stating as the cause for which it was prayed that the attachment might issue, that the defendant had property, goods, &c., not exempt from execution, which he refused to give either in payment or as security of the plaintiff 5s debt.

On the 18th of August 1857, these parties entered into a written contract in relation to the sale of a certain stock of hardware.

Meeker & Perkins commenced suit, by attachment, against John Bowman, and) garnished Sanders and Shaw, notifying them to appear at the next term of the district court and answer interrogatories. At the next (April), term, Bowman having failed to appear and answer, judgment by default was rendered against him, for the sum of $78127, and costs. The garnishees having, also, failed to appear and answer, a default was rendered against them.

This action was brought against Bowman, Walker and Walters, to recover upon a promissory note made by B. and W., to Walters, and by him assigned to plaintiff. Bowman appeared and plead in abatement, that his name was Bowman, and not Bauman. To this plea there was a demurrer, which was overruled; and it appearing that his true name was Bowman, it was thereupon ordered that all subsequent proceedings in said cause should be conducted against him by his true name.

This is a proceeding by scire faeias. The writ recites that at the September term of the district court for Marion county, A. D. 1854, an indictment was preferred by the grand jury, against one Andrew T. Strong, for larceny; that at the next April term of said court, A. D. 1855, the said Strong appeared, and upon affidavit filed, moved the court for a change of venue in the cause, that the venue was thereupon changed by the court to the county of Monroe, and'the said Andrew…

The record in this case shows, that the parties appeared, and the cause coming on to be heard, a jury was regularly impannelled and sworn, “ and after some other proceedings, the plaintiff takes a non-suit.” Judgment was then rendered in favor of defendants, for costs. Afterwards, plaintiff moved to set aside said non-suit, because of 8 error in the instructions given by the , court to the jury, which motion was overruled. Plaintiff appeals.

Bill for divorce. The original notice was not served by the sheriff, but by one of the attorneys of the complainant. The return states, that he “ served the notice on the defendant on the 29th day of August, 1856,” and is verified by affidavit. Judgment was rendered against the respondent by default, for want of an appearance, from which she appeals.

<p> Certiorari from Linn District Court. </p> <p>Platt was found guilty of the offence of selling goods,' wares, &c., at public auction, within the corporate limits of Iowa Oity, without having a license, as required by an ordinance of the city council. The trial and proceedings were before the proper police magistrate of the city. The fine was assessed at $25, and the defendant ordered to be imprisoned for fifteen days, unless the fine and costs should be sooner paid. Under the proper mittimus, he was placed in the custody of Harrison, as sheriff, and while thus detained, he applied to the district court of Linn county for the writ of habeas corpus, on the ground that the city council had no power or authority, under and by virtue of the charter of said city, to pass the ordinance in question, and that such ordinance was null and void. On the hearing, Platt was discharged, and Harrison, the sheriff, now prosecutes this writ.</p>

<p>The word “ hereafter,” in section 1672 of the Code, in relation to the time of commencing an action, has reference to the time when the Code took effect, and not to the time of its passage.</p> <p>The object of section 1672 of the Code, was to prevent the application of the general rule, contained in section 1671, to causes of action which had accrued prior to July 1, 1851, but were not yet barred, without giving a reasonable time, after the taking effect of the Code, within which to bring the action.</p> <p>Under section 1672, a party is enti tied to at least half the time specified in the Code, for the commencement of his action, after the Code took effect.</p> <p>If, upon the expiration of half the time specified by the Code, the whole period allowed by the first section (1659) of chapter 99, counting from the time the cause of action accrued, has not%xpired, then the party may sue at any time before that period expires.</p> <p>An action was commenced on three promissory notes, two of which were dated February 2, 1850, and the other April 24, 1851, and all became due in one day after their respective dates. The original notice was delivered to the sheriff, November 24, 1856, and returned not served, May 18, 1857, the defendant not being found ; service was made on the defendant on the 12th of September, 1857. The defendant pleaded the statute of limitations : Meld, That none of the notes were barred by the statute of limitations.</p>

<p>The fact that an attorney of the party, -was present at the taking of a deposition in liis favor, on commission and interrogatories, where it is not apparent that the attorney prompted the witness, or in any positive manner influenced him, furnishes no ground for rejecting a deposition. '</p> <p>Where, in an action of trover against an officer, for the conversion of two horses, the defendant answered, alleging that he took two horses, as • sheriff of D., county, from the possession of plaintiff, as the property of B., hy virtue of a writ of attachment in favor of J. & S., in an action brought by them against B., and which was still pending, and that he sold the said horses as such sheriff, by virtue of the proceedings in said action; and also denying that plaintiff was the owner of said horses, and that defendant converted them to his own use ; and when the defendant asked the court to instruct the jury, as follows “ That the plaintiff, in order to recover, must show that he owned the horses, and that the defendant converted them, or the proceeds thereof, to his own use,” which instruction the court refused, as follows:— “Refused, because a conversion of the horses, or the proceeds, so as to deprive the plaintiff of them, would be sufficient, if the jury are satisfied that he was the owner, and entitled to the possession” : Held, That the gist of the instruction was, that the sheriff must convert to Ms own use, and that the instruction was properly refused.</p> <p>Where, in an action of trover against an officer, for the conversion of two horses, the defendant justified under a writ of attachment against B.; and where testimony was introduced, tending to show that the plaintiff was in the employment of the owner, or owners, of a circus; that he bought one of the horses, (Young Alick), from one H.; that when the plaintiff paid the first one hundred dollars of the purchase money, he went to the clerk of the circus and obtained it; and that when he paid the balance, (one hundred and forty-five dollars), some time after, he did it by giving H. an order on the same clerk; and thereupon the defendant asked the court to charge the jury as follows : “ That if the jury believe, that at the time of the sale of the spot-horse, (Young Alick), by H., the, plaintiff went with II. to the clerk of the circus, and obtained from the clerk one hundred dollars, and handed it over to H., as part of the purchase money; and if the jury further believe, that at Milwaukie, the said H., gotthe balance, one hundred and forty-five dollars on the plaintiff’s order, through the same clerk, these are such circumstances as to warrant the jury in treating the sale, as a sale to the owner, or owners, of the circus, and not as a sale to plaintiff; which instruction the court refused to give: Held, That there was no error in refusing the instruction.</p> <p>There is no objection, in principle, to a jury seeing an object which is the subject of testimony. The practice lies in the discretion of the court.</p> <p>Where, in an action of trover, for the conversion of two horses, the court permitted the jury, with H., who was the person supposed to have sold one of the horses to the plaintiff, to go out and see the horse in the court yard; and where it did not appear that If. and the jury spoke together, or that any improper circumstance appeared: Held, That there was no impropriety in the proceeding.</p> <p>Where it is sought to reverse a judgment, on the ground that the verdict is excessive, and contrary to the evidence, the whole of the testimony must be brought before the appellate court, or the objections arising from the finding of the jury cannot be considered.</p>

<p> Appeal from the Jones District Court. </p> <p>This was an action by the plaintiff to recover damages for the seduction and debauching of his daughter, by defendant. Exception was taken on the trial to instructions given to the jury, by the court, at the request of the plaintiff, and to the refusal of the court to give certain instructions asked by defendant. The jury found for the plaintiff, and assessed the damages at $3,000. Defendant appeals. The instructions will be found sufficiently stated in the opinion of the court.</p> <p>I. The old form of action, per quod sermtiwn amisit, was wholly technical in form, and was founded in legal fiction. Ciarle v. Fitch, 2 "Wend., 261; Hewitt v. Phiner, 21 lb., 82. This form of action has been abolished by the Code. Section 1733.</p> <p>II. Section 1696, of the Code, gives to unmarried females the right to prosecute an action for their own seduction, in their own names. This remedy is not cumulative. Cover v. Dill, 3 Iowa, 312.</p> <p>III. Where a statute gives a remedy to redress a particular injury, no other mode can be pursued, and no other person, than those pointed out, can employ the remedy. 1 Kent Com., 517; Smith on Stat. and Com. Law, 898; 10 Johns., 389; Plowden, 206; 1 Yermont, 152; The New-burgh Turnpike Go. v. Miller, 5 Johns., 101; Lessee of Moore v. Vance, 1 Ohio, 10 ; Camden ' v. Wright, 21 Wend., 128.</p> <p>IY. The plaintiff is limited in his recovery to the loss of service, and actual expenses incurred, and could not recover exemplary damages. Camden v. Wright, 21 Wend., 128 ; Edmonson v. M&Sell, 2 T. R,, 1; Whitney v. Hitchcock, 1 Denio, 163 ; Clarke v. Fitch, 2 Wend., 161.</p> <p>Y. Exemplary damages are not allowed in any case, unless authorized by statute. 1 Murray Jury Ct. Rep., 337; 9 Law Reporter, 529; 2 Black. Com., 138; Coke Litt., 257: Soyer on Damages, 1; 2 Greenl. on Ev., 253 ; 1 Blackf. 277; 3 Am. Jurist, 293.</p> <p>YI. The father cannot recover damages for his wounded feelings, nor for his anxiety, as the parent of other children, whose morals may be corrupted by the example.</p> <p>YII. Nor can the plaintiff enhance his damages by showing that the defendant visited the house as a suitor of the daughter, and that he succeeded by means of a promise of marriage. Foster v. Scofield, 1 Johns., 299 ; Clark v. Fitch, 2 Wend., 165 ; 3 Campbell, 163; Cover v. Dill, 3 Iowa, 310 ; Sargent v. Dennison, 5 Cow., 116 ; Martin v. Fayne, 9 Johns., 387.</p> <p>Isbell, Hubbard c& Stephens, for the appellee, cited the following authorities: Boyd v. Bird, 8 Blackf., 113; Bedford v. McKowl, 2 Esp. N. P., 119; Andrews v. As-key, 8 C. & P., 7; Irwin v. Dearman, 11 East., 21: 2 Greenl. Ev., sec. 579.; Sedgwick on Dam., 542 ; 3 Stephens N. P., 2356 ; Aclcerkj y. Haines, 2 Caines, 292.</p>

The petitioner, as the widow of Johnson J. Phares, claimed dower in a lot in the town of Port Madison. The husband died, October 22, 1842, and this action was commenced October 2, 1857. Defendant demurred to the petition, for the reason that upon the facts stated therein, petitioner’s claim was barred by the statute of limitations. This demurrer was overruled, and defendant appeals.

The defendant was indicted under section 2712 of the Code, which enacts, that if any person let any house, knowing that the lessee intends to use it as a place or resort for the purpose of prostitution and lewdness, or knowingly permit such lessee to use the same for such purpose, he shall be punished as therein provided.

<p> Appeal from the Dubuque District Court. </p> <p>Upon a settlement of the accounts of Foteaux, as administrator of Clement Lepage, deceased, there was found due him, from the estate, the sum of $26,40, for which judgment was rendered in his favor by the county court. As guardian of the minor heirs of Lepage, there was found to be in his hands, of the estate of his wards, and due to them, respectively, the following sums — that is to say: To Clement Lepage, $387,14; to Louis Lepage, $363,02 ; to Felicite Lepage, $424,90 ;' to Joseph Lepage, $118,06; to William Lepage, $104,78; to Mary Lepage, $52,74. Clement Lepage, one of the heirs, had departed this life, in 1849 or 1850, at the age of twenty-three years, intestate, and unmarried. The county court ordered that the sum of $387,14, the amount of his estate in the hands of his said guardian, be paid into court, to the clerk thereof, to be retained by Mm, until claimed by Ms proper representatives or heirs. From the decision of the county court, upon the accounts of Foteaux, as administrator and guardian, the heirs of Lepage appealed to the district court; by which court the accounts were referred to a commissioner, to restate the same, and report to said district court. The commissioner found, and reported, that there was due to Foteaux, as administrator, from the estate, $10,68; and that the amounts due to the several. heirs, on the 20th of September, 1855, from their guardian, were as follows : To Clement Lepage, $534,22; to Louis Lepage, $371,75; to Felicite Lepage, $371,75; to Joseph Lepage, $242,63 ; to William Lepage, $147,23 ; to Mary Lepage, $98,93 — making a total of $1766,51. Roth parties tiled exceptions to the report of the commissioner. The heirs excepted for the reason, that Eoteaux was charged by the commissioner, with interest on the money in his hands, at the rate of six per centwn per annum only. Eoteaux excepted to the report, because: 1. He was charged certain sums as administrator and guardian, without authority of law; 2. Certain credits claimed by him, were not allowed; 3. The interest was compounded at the end of each year.</p> <p>The district court confirmed the report of the commissioner ; ordered interest to be allowed on the amount ascertained by him to be due to the heirs of Lepage from Eoteaux, from the date of the filing of the report to the time of its acceptance by the court; and adding the several amounts together, rendered judgment against Eoteaux, in favor of “ The Heirs of C. Lepage,” for two thousand and seventy-nine dollars and fifteen cents. This judgment includes the amount found to be in the hands of Foteaux, of the estate of Clement Lepage, one of the heirs, who had departed this life. It does not appear that the district court made any order in reference to the account of Foteaux, as administrator of the elder Lepage ; and no disposition is made of the appeal from the decision of the county court, upon the administration account. The record contains the accounts of Foteaux, as adminisirator of Lepage, as well as his accounts as guardian of the heirs. Foteaux appeals. The errors complained of, and the other material facts, are stated in the opinion of court.</p> <p>I. It is a general rule of the common law, that the expenses of the infant, or wTard, shall be kept within the income or produce of his estate; and a guardian is not to be permitted to encroach upon the principal of his ward’s estate, without the special previous permission of the court of probate. Davis v. JIarhiess, 1 G-ilm., 178; Walker v. Wetherell, 6 Yesey, Jr., 171; Ciarle v. Clarke, 8 Paige, 158; 2 Lead. Cases in Eq., 169; William’s Case, 3 Bland., 186; Hanson v. Chapman, lb., 138 ; Long v. Horcorn, 2 Ired. Eq., 351; McDowell v. Caldwell, 2 McCord, 13; Davis v. Roberts, 1 Smedes & M., 513; Myers v. Wade, 6 Randolph, 411; Willard v. Chovin, 2 Strobh. Eq.; Anderson v. Thompson, 11 Leigh, 158; Austin v. Lamar, 23 Miss., 192; Freelocle v. Turner, 26 lb., 391; Fowler v. Brown, 5 Texas, 118.</p> <p>II. Annual rests should be made in the guardian’s accounts, and ten per cent, interest per annum charged. Story’s Eq., sec. 1277; Stat. of 1813, 132 ; Sohiefelein v. Steward, 1 Johns. Oh., 627; Raphael v. Bohm, 11 Yesey, Jr., 92; Rowmd v. Kirkpatrick, 11 111., 10 ; Moords Ex. v. Beauchamp, 5 Dana, 77; Jennison v. LLapgood, 10 Pick., 108 ; Jones v. Fox, 13 E. L. & E., 110; Robertson et al. v. Archer, Adm’r, 5 Randolph, 321; Holmes v. Logan, 3 Strobh. Eq., 31.</p>

Bill to declare and enforce a trust. The bill alleges that Andrew Bickel deceased in October, 1854, leaving Eva, his widow, and Mary, Sarah, Matthias, and George, his children, and heirs at law, of whom Mary married Martin Schaffner, one of the complainants, and Sarah married Michael Reilly, another of the complainants; and that Eva, the widow, afterwards married Frederick Grutzmacher, one of the respondents.

This was an action to recover the possession of certain real estate, in the city of Muscatine. The property was purchased of the United States by Niles Higginbotham, who, in the month of August, 1839, conveyed the same to Alexis Smith; in September, 1852, Daniel Smith, representing himself in the deed to be the father and sole heir of Alexis Smith, then deceased, conveyed the premises to Suel Foster, who in August, 1851, conveyed the same to the plaintiff.

<p>In an action to recover the possession of real property, brought by the person holding the legal title, an equitable title is no defence against the legal one.</p> <p>A vendor of real estate, when the purchase money remains unpaid, is not compelled to pursue the course indicated in sections 2068, 2094, and 2095 of the Code. Those sections do not take away his other rights; they only provide for certain matters, in case he resorts to thatremedy.</p> <p>Where a vendee takes possession of real estate, with the consent of the vendor, and fails to pay the purchase money in accordance with the terms of the contract, the vendor can sustain an action against the vendee, to recover the possession, without returning so much of the consideration as may have been paid, or tendering to the vendee, his notes for the purchase money.</p> <p>Where in an action of right to recover the possession of certain real estate, the defendant answered, admitting that on the first day of May, 1856, the plaintiff was the owner in fee simple of the said premises, and averring that on that date he entered into a written agreement with defendant, to convey the premises to him for the consideration of §2,000, to be paid as .follows: $500 by the conveyance by defendant to plaintiff of a certain tract of land in Johnson county, consisting of eighty acres, which was then conveyed ; and the balance in one, two, and three years from date, for which three promissory notes, of $500 each, were executed to plaintiff, all which notes are not yet due; and . that defendant took possession of the premises, with the consent of the plaintiff — to which answer was appended a copy of the contract, from which it appears that the notes were to draw ten per cent, interest, payable semi-annually, and that upon payment in full of said notes, the deed was to be executed and delivered ; and where the plaintiff replied, admitting that defendant went into possession with the consent of plaintiff, and averring that the written obligation contained the entire contract; that the defendant had not paid either of the said notes, one of which became due on the first of May, 1857, (after which date this action was commenced), nor the semi-annual interest which had becomo due on all the notes — and that the above sums having become duo, and being unpaid, on tho 29th of November, 1856, the plaintiff gave the defendant written notice to quit the promises on the first day day of March, 1857, which ho refused to do — to all which replication, except the first count, the defendant demurred, for the following reasons: 1. That said replication showed that the plaintiff had received the consideration for the property, and still retains the same i 2. That the replication does not show that plaintiff has tendered to defendant the promissory notes, and the amount paid upon the contract ; 3. That that part of the replication which avers notice to quit the possession, is in tho nature of an amendment to the petition, and the addition of a new cause of action; and, 4. That said replication shows no substantial cause of defence — which demurrer was sustained by the court: Held, That the court .erred in sustaining tho demurrer.</p>

This action was instituted before a justice of tlie peace, for tlie recovery of rent. Judgment was rendered against tlie defendant, and lie appealed to the district court.

Action on a promissory note. Defence, payment. Verdict and judgment for the defendant. The plaintiff moved that the verdict be set aside, and for a new trial, upon several grounds, one of which, was, that there were but eleven jurors upon the panel of the jury which tried the cause.

The plaintiffs bring their suit upon the following instrument of writing, executed by defendants : “I, E. ~W. Lake, do this day, December 20th, 1855, agree and' bind myself, in the sum of five hundred dollars, to have the east half of the south half of the south-east quarter of section thirty-three, township eighty, range six, released of a certain mortgage executed by me to Matthew Johnson, I having this day sold forty acres of said land to Anton Linder, and Jacob Rees.

This action was brought to recover for a threshing machine sold to defendants. It was tried by the court, and the facts found and set out in the record. Judgment for plaintiff, and defendants appeal. The facts of the case are stated in the opinion of the court.

The notice in this case was returned, “served as to Jonathan See, by leaving a copy with E. Kelly, a person over fourteen years of age.” There was no appearance by defendant, and judgment by default was rendered against him for the amount claimed. The defendant appeals.

This suit is brought to recover damages for the injury-sustained by the plaintiff, from the alleged wrongful act of defendant as justice; of the peace, in issuing an execution against the plaintiff, in favor of Thomas Bryan, for the sum of five dollars, and costs, taxed at $27.95, whereby property of the value of $100, was taken by the constable, and sold to satisfy said execution; whereas, in fact, as alleged by pk.int.iffj no judgment against him had at any time been rc…

Tbis was an action to recover lot six in out-lot nine hundred and sixty one, in Barrett’s sub-division of lots in the city of Burlington. The defendant answers, setting up his title as required by the petition of plaintiff, which is as follows: Barrett purchased of the United States, on the 8th of November, 1811; he conveyed to one Blankenship, who, on the 11th of April, 1856, conveyed to defendant.

In April, 1851, tlie plaintiffs recovered judgment in an action of right against Ambrose Rucker, one of the defendants, for the possession of the north-west quarter of section ten, township sixty-six north, of range five west, lying in Lee county.

Action was on a promissory note, against the indorser. The plaintiff alleges that the defendant indorsed and delivered to him, in payment for goods sold and delivered to defendant, a promissory note made by Phillips & Co., and payable to the said Striblen. The defendant demurred to the petition, which demurrer being sustained, the plaintiff amended his petition, to which petition a second and third demurrer was filed — both of which were overruled.

The plaintiff sets forth in his petition, the following state of facts, on which he seeks to recover of the defendants : That in January, 1811, the defendant, Rebecca G. Hamilton, residing in the State of Ohio, was the widow of John Adamson, late deceased; that among the goods and effects of said Adamson, at the time of his death, were found three several promissory notes, made by one William Downing, of the State of Kentucky, and payable to said John Adamson ; that these…

This action was commenced in October, 1856, upon a replevin bond, given by defendants to plaintiff, on 23d of January, 1851, in the penal sum of seven hundred dollars, conditioned to prosecute a suit in replevin brought by W. B. Hart against this plaintiff, and to return the property replevied, if a return should be awarded.

In Equity. This is a controversy between creditors for the application to their claims oí certain funds of their debtor. The facts are as follows: In January, 1852, the law firm of Seevers & Smith, composed of William II. Seevers, and the defendant, W. T. Smith, received for collection two notes held by the defendant, Garber, against Peter Barnett.

One Pierce made to Monohan the following note: $1-1.91. Coon Hill, January 11, 1855. Due John Monohan, the sum of forty-one dollars and ninety one cents, which I promise to pay in one day.” On the back of this note was the following: “I sign the within note, for value received, over to Edwin Hall, this second day of February, 1855.

This is an agreed case, upon the following statement of facts : Eeed & Co., recovered judgment against Crosthwait for $205,76, on the 28th of April, Í854. An execution was issued, and was levied on an eighty acre tract of land, supposed to be the property of the defendant.

The plaintiff sold to one Nutts, a quantity of intoxicating liquors. After the sale and delivery, they were attached, as the property of said Nutts, at the suit of several of his creditors. Plaintiffs then replevied said liquors, making Nutts, the attaching creditors, and the sheriff, parties defendants.

The plaintiff seeks to recover damages for the fraud and misrepresentations of the defendant, in the sale of a certain parcel of real estate. Verdict and judgment for plaintiff, and defendant appeals. .For the material facts, see the opinion of the court. I. The deposition of Knox should have been excluded. Boyd v. Hastings, 17 Pick., 200; Bell y. Morrison, 1 Peters, 355 ; Code, section 2119. II.

Action upon two promissory notes, one for $120, dated December 11, 1851, and tbe other for $60, dated January 1, 1855, and both payable to the order of the plaintiff, two years after date. The petition was filed January 5, 1857, and claimed of the defendant, one hundred and eighty dollars, which is alleged to be due to the plaintiff, and asks judgment for that amount, with interest and costs.

Tliis action was brought to recover ten thousand dollars for the alleged fraud of the defendant, in the sale of certain lands, with a steam mill situated thereon, in Boone county. Plaintiff having made affidavit that defendant was a non-resident of the State, two writs of attachment were issued — one directed to the sheriff of Boone, and the other to the sheriff of Polk county.

The plaintiff in error is the editor and proprietor of “ Tbe Daily Hawkeye,” a newspaper published in the city of Burlington, in this State. In November, 1857, one Abrahams was tried and convicted of a criminal offence, before the Hon. Thomas W. Claggett, judge of the first judicial district, and then holding court in said city.

Specific Performance. Iu September, 1854, complainant filed his bill against Buzick, the obligor in the bond, praying a conveyance, and asking an injunction to restrain the said defendant from selling the said property. This injunction was served on the 26th day of September, andin December of the same year, Buzick was served with notice of the pendency of said action.

Indictment foe Larceny. The prisoner was tried, convicted and sentenced to the penitentiary for five years, and now prosecutes this appeal. Eor the facts, see the opinion of the court.

This action was brought to recover the amount of one hundred notes or coupons, each for the sum of thirty-five dollars, and which are in the following form: Interest Warrant No. 1, oe Bond No 1. The county of Johnson, in the State of Iowa, will pay to the holder hereof, at &c., on the first day of June, 1856, thirty-five dollars, for interest due on that day, on bond No. 1, issued for subscription to the stock of the Lyons Iowa Central Railroad Company.

The county court of Pottawatamie county rendered a judgment in favor of the plaintiffs, against “the estate of S. T. Carey, deceased,” as defendant, for the .sum of $1,951,35. Prom this judgment, Martha E. Eubank, the executrix of Carey, appealed to the district court. In the district court, the executrix moved the court to dismiss the suit, for the reason that no notice of the hearing had been served on her, as required by law.

es District Court In Chancery. Petition prays the specific performance of a contract in relation to certain real estate. Abner Pierson is charged with holding the legal title to one hundred and sixty acres of the land, and the equitable title to the other eighty — the legal title to that, being in the respondent, John Pierson, the father of the said Abner.

Action for a trespass, in pulling down plaintiff’s Louse, carrying away the material, and destroying plaintiff’s property therein. The defendants answered first, by a general denial. Afterwards, Thomas P. Sater filed a special answer, justifying as a constable, holding a writ of attachment in an action by the two other defendants, against the plaintiff.

Bill for an Injunction, to enjoin tiie respondents FROM THE COLLECTION OF CERTAIN RAILROAD TAX. Held: that under the law existing at the time of the vote, the tax was illegally levied, and invalid, but that the act of the legislature legalizing said vote, and curing the defects therein, was effectual for that purpose, and that the legislature, without any doubt, had authority to enact the law.

In Chancery, Demurrer to bill sustained, and complainant appeals. Eor the material parts of the bill, and the grounds of demurrer, see the opinion of the court.

This cause was before the court at the June term, 1855, and is reported in 1 Iowa, 257. The present petition is substantially like the former one. Such differences as are regarded of consequence, are noticed in the opinion of the court.

Tbe defendants were sued on a promissory note for $1,859,27, ujion which were indorsements to the amount of $1,183,13. The note fell due February 25th, 1857 — six months from date — the principal indorsement, being of $1,136,41, was made December 26, 1856.

Bill in chancery to set aside a conveyance of real estate, on the ground that it was obtained by fraud and duress.

Action to recover certain real estate, consisting of a tract of land and the appurtenances, with damages for the detention thereof. The plaintiffs recovered judgment against one Wyman and the defendant Cave, as parties, at the September term of the district court, for the year 1851. An execution, issued under this judgment, was levied upon the real property in question, and it was bought by the plaintiffs, who now sue for possession.

Appeal -from the Appcmoose District Court. Tlie prisoner was indicted at the October term, 1856, of tbe district court of Davis county, for the murder of his wife, Nancy Hinkle. Upon his affidavit and motion, a change of venue was ordered to Wapello county; and afterwards upon his like application, in the Wapello district court, the venue was changed to Appanoose county, in the ninth judicial district.

Tlie plaintiff filed in the county court a claim”against the deceased, Tomlinson, amounting to $596, for personal property sold him in his life time, of which a bill of particulars is filed. The county judge found due the plaintiff the sum of $110, with costs, at the May session, 1857. The administrator appealed to the district court.

The plaintiff declares on a promissory note, alleged to have been made by defendants to Baker & Co., and by them assigned to plaintiff. The action is brought against the makers and indorsers. The defendants deny the assignment of the note ; but do not make the denial under oath. Por this cause the plaintiffs demurred to the answer, and the demurrer was sustained. Leave was given the defendants to amend the answer. The assignors only answer over.

In Chancery. The county of Lee, at an election held in 1856, by a majority of the votes cast, determined to issue bonds and take stock in three several railroad companies, then constructing their roads through said county. At the December term, 1856; of this court, said election was held irregular, and it was determined that, as conducted, it conferred no power upon the county judge to issue the proposed bonds.

The defendant gave the’plaintiff a promissory note of the following tenor: “ On or before the first of December next, I promise to pay Jacob Sipe, or bearer, the sum of forty dollars, for value received; Provided, that John C. Fremont has not a majority of six thousand votes at the ensuing election, in the State of Iowawhich note was dated October 18, 1856.

Trial and judgment before a justice, October 16th, 1856, from which defendant appealed to the district court, on the 26th of the same month. When the transcript, and papers were filed with the clerk of the court below, is not shown,' nor does it appear that they ever were filed. There is nothing to show that the plaintiff ever had notice of the appeal, nor that he appeared in the district court.

At the March term, A. D. 1858, of the district court, and on the fifth day of that month, the defendant was indicted by the grand jury of Lee county, for unlawfully selling intoxicating liquors to a minor. The defendant demurred to the indictment, on the ground that the grand jury had no legal authority to inquire into the offence charged, which demurrer was overruled, and the defendant fined twenty-five dollars and costs, from which judgment he appeals.

Action on a promissory note, payable to the plaintiffs, commenced by attachment. The attachment bond was signed by the plaintiff, by their attorney, who brought the suit. The defendant moved to quash the attachment, on the grounds that the attachment bond was insufficient, and the plaintiffs had never signed the same; which motion, was overruled.

The petition in this case avers, that on the 6th of May, 1853, and prior thereto, plaintiff was in possession of a certain tract of land, being part of the Half-breed Tract in Lee county, upon which, as occupying claimant, under color of title and in good faith, he had made valuable improvements, (specifying them); “that under and by virtue of the occupying claimant law of the State of Iowa, he was entitled to the continued possession and enjoyment of said premises, as…

<p> Appeal from the Fremont District Gourt. </p> <p>The complainant claims a right of pre-emption to the south-east quarter of section thirty-four, in township sixty-nine, north range forty-three west, under the act of Congress of the 20th of September, 1850, and the acts of the general assembly of Iowa, of January 15, 1853, (Acts of 1853, 29), and of 25th of January, 1855, (Acts 1855, 228). He sets forth, that on the first of June, 1857, and immediately subsequent thereto, he iona fide, commenced and built a dwelling on the said land, with the intent to reside thereon, and cultivate the same, and within sixty days thereafter, filed his claim before the county judge of Fremont county, and offered his proofs of such his improvement, but the county judge refused to grant him a certificate of pre-emption, or to allow his claim, upon the alleged ground that the respondent had, before that time, received a certificate of his right to the pre-emption of three quarters of the same quarter. The petitioner’s bill is brought to set aside the certificate of the defendant, upon the alleged ground that it is void; and he alleges that the defendant had not made any improvement or settlement upon the said land, and that his certificate was obtained by fraud and misrepresentation, and that the same is void. The respondent demurred to the bill, assigning ten causes, (which are sufficiently noticed in the opinion of the court), which demurrer was sustained, and the plaintiff amended. The petitioner obtained a conditional default under the rules, and at the March term, 1858, moved a confirmation of the default, which the court overruled, and dismissed the bill. The complainant appeals.</p> <p>cited Story’s Equity PL, sec. 72, 77, 232; 4 Bouv. Inst., 320; Sands v. God-wise, 4 Johns., 464, note a ; 2 Hill. Real Prop., 433, and notes; lb., 450 ; Arnold v. Grimes, 2 Iowa, 18 ; 2 Bacon’s Abridge., 775; 1 Bouv. Inst, 226 ; 21b., 437; 3 lb., 669 ; 2 Par. on Cont., 66 ; Story on Cont., sec. 393 ; Chitty on Cont., 206 ; 2 Rent, 234, 453 ; 5 Gillman, 574; Scott v. Purcell et al., 5 Blachf., 67; Anderson v. Roberts, 18 Johns., 575; Manhattan Co. v. Evertson, 6 Paige, 467; Doe v. Manning, 9 East, 58; Bridge v. Eggleston, 14 Mass., 245; 12 lb., 456; Goodwin v. Hubbard, 15 lb., 210 ; Richard v. Ham, 14 lb., 137; Gilbert v. Hof man, 2 Watts, 66 ; Edgell v. Lowell, 4 Yermt., 405 ; Walmsley v. Demattos, 1 Burr, 474; How v. Ward, 4 Greenl,, 195 ; 1 Johns. Ch., 512.</p> <p>relied upon Kerr v. Stewart, Morris, 433; Green v. Stuben Co. Panic, 1 G. Greene, 447; Harmon v. Chandler, 3 Iowa, 150; Stutsman v. School District Ho. Two, 1 Iowa, 94 ; Lloyd v. Hosier, lb., 512; Ayres v. Campbell, 3 Iowa, 582; Mitchell v. Wisootta Land Go., 3 lb., 209; Brewington v. I>aiion & Swan, 1 lb., 121; Lpmvpson v. Platt, 1 lb., 556.</p>

<p> Appeal from the Johnson District Court. </p> <p>This is an action to recover the value of certain brandy, wine, ale, porter, schnapps, &c., alleged to have been sold and delivered to defendant, by the plaintiff. The defendant answered that the same were intoxicating liquors, sold to defendant by the plaintiff, in the State of Illinois, in the year 1857, with intent to enable the defendant to violate the statute and laws of the State of Iowa; that the same were shipped from Chicago, directed to defendant at Iowa City, in Johnson county, with the knowledge that the defendant was not the agent of said county for the sale of intoxicating liquors; and that the same were intended to be sold in said county, without authority, and contrary to the statutes of Iowa in such case made and provided. And defendant avers that at the time of the sale and shipment aforesaid, he was not the agent of said coimty, authorized to sell intoxicating liquors in said State.</p> <p>To this answer there was a demurrer, which was overruled by the court. The plaintiff stood upon his demurrer, and judgment was rendered for the defendant. The plaintiff appeals, and assigns for error the overruling the demurrer.</p> <p>I. As appears from the defendant’s own showing, the contract for liquors ivas made in the State of Illinois, where no such law as is set up in defence exists; therefore, it could not have been in violation of the laws of that State, and was a good and valid contract in that State. A contract good and valid where made, is good every where, and can be enforced any -where. Truncly v. Vegnier, 1 Big., N. C., 151; Wettings v. Censegue, 1 Pet., C.’ 0., 317; Pearsall v. Dwight, 2 Mass., 88 ; Smith v. Mead, 3 Conn., 253 ; Neelley v. Hopkins, 3 Conn., 473. Again : That a contract relating to moveables, is to be construed according to the law of the place where it is made, or the lex loci contractu. Thorne v. Watkins, 2 Yes., 54; TIolmes v. Run-sen, 4 Johns. Cli., 487; Harvey v. Richards, 1 Mason, 412; Bruce v. Bruce, 2 B. &. P., 229 ; and further on this point: The contract must bo governed by the laws of the country where the contract was made. Mede v. Roberts, 3 Esp., N. C., 163. And we think that this is the universal rule: that if a contract was entered into in a State where it was good and valid, that it is, therefore, good here, and and can be enforced here. Therefore, wre think that as defendants acknowledge that the contract was good where made, that they cannot set up in defence said “ act for the suppression of intemperance.”</p> <p>II. Our second ground of demurrer is founded on this point: That the contract being valid and legal when and where made, cannot .be vitiated or affected by the laws of Iowa ; and to sustain the position that we assume, we cite 11 How., 464, in which case the following decision was rendered : “ That if a contract is entered into in another State, in conformity to the local law, to have its effect and execution there, the courts of Louisiana cannot declare it a nullity, on the ground that it would not be valid according to the laws of said State, even if one or both of the contracting parties were not citizens of said foreign State; and we find in Orautt v. Helson, 1 Gray, 541, the following decision : “ The court are therefore of opinion that a sale of liquors in Connecticut, without any fraudulent view to their re-sale in Massachusetts, was not unlawful, and that an action may be maintained in this commonwealth for the price of the liquors sold. We go farther than this, and say, that if a guilty knowledge is admitted by us, or rather, that if the goods were sold with a knowledge of their rc-sale, that even then, we can recover in this State, provided we have no interest in the re-sale, and are to derive no benefit from the violation of the law.” McIntyre v. Park, 3 Mete., 207. We quote from the decisión in the cases of Holman v. Johnson, Cowp., 341, and Ilanny v. Eve, 3 Cranch, 242, in which the following points were decided, viz : That in a case where goods were sold to an Englishman in France, by a Frenchman, for the known purpose of being smuggled into England, still that the Frenchman could maintain his suit in England for the pirice of the goods, upon the ground that the sale was complete in France, and that the party had no connection with the smuggling transaction. The contract was complete, and nothing left to be done. We think that this is a parallel case with ours, for, as appears from their own showing, the contract was complete when the goods were delivered at the depot in Chicago; that the sale and delivery was made at Chicago, in Illinois, and from all that appears the plaintiff was not to receive any benefit from the re-sale ; and it is reasonable and just to suppose that such was the case. It was held in Massachusetts, where lottery tickets were sold to a citizen of Massachusetts, in the State of New York, such sale being prohibited by the laws of Massachusetts, that the value of said tickets could be recovered in the State of Massachusetts, because such sale was good where made, and that the contract was completed in the State of New York. McIntyre v. Paries, 2 Mete., 207 — substantially carrying out, and supporting the doctrine of Holman v. Johnson, Cowp., 341, and Hanny v. Eve, 3 Cranch, 242. Now we ask, if these cases have any weight or influence with the courts of this State, can they be influenced or guided by these decisions, and also by our laws % We say that the law under which these decisions were rendered, were similar in relation to the validity of contracts ; and that still, the courts held, that even under the law, actions could be maintained; therefore, oúr position, that the act set up is no defence to the plaintiff’s cause of action, is sustained.</p> <p>III. This brings us to the third ground of demurrer, and the only one that remains to be argued, and it is this: Any contract being valid where made, cannot be affected or defeated by the laws of Iowa, as such laws impair the obligation of contracts, and are null and unconstitutional. We admit that the legislature has power to pass laws changing the remedy, and rendering it less speedy and convenient in enforcing contracts, but we say, that when they leave no substantial remedy' — -take away all means of enforcing the same — that then they come in direct conflict with the constitution. James v. Stall, 9 Barb., 482. With that portion of it, particularly, which is embodied in the twenty-first section of the Bill of Rights, which declares that “ no law impairing the obligation of contracts shall ever be passed.” Now let ns see what is the obligation of a contract, and secondly, what impairs it. “ A contract is an agreement in which a party undertakes to do, or not to do, a particular thing.” This, then, is a contract, or the legal definition of a contract. “ The law binds him to perform his undertaking; and this is the obligation of his contract. Any law which releases a part of this obligation, must, in the literal sense of the word, impair it. Much more so must a law impair it, which makes it totally invalid and entirely discharges it. Chief Justice Marshall, in Sturges v. Growninshield, 4 Wheaton, 197. Now we suppose that the only question, or, rather, fact, that it is necessary for us to establish is, that this “ act for the suppression of intemperance” impairs the obligation of contracts; for if it does, then certainly this law is unconstitutional and void. We have seen what a contract is, in legal contemplation ; also that which constitutes the obligation of a contract. Therefore, let us look at this acc, and ascertain what it seeks to do. It says : “ All sales, transfers, mortgages, liens, attachments, pledges, and securities of every kind, whether given in whole or in part for liqüor, shall be void,” and further, “ that no action of any kind shall be maintained in any court of this State . for the value of intoxicating liquors.” Laws of 1854, section 15, 68. Now, does this law release a debtor, in part, from the obligation of his contract? We contend that it not only releases him in part, from his obligation, but that it goes much farther, and strikes at the very bottom of his contract, saying as plain as a law can say, that the obligation of your contract is entirely destroyed — you are entirely free; for certainly a contract that has any obligation can be enforced in any court, and in any State; and, in fact, the only way in which the legislature could possibly reach this point, without violating every principle and rule of law, was, by destroying the obligation of a contract, and then saying your contract has no obligation, and therefore, of course, cannot be enforced. Another definition of the law, we find in Institutes, Lib. 3, Tit. 14. “An obligation is the chain of the law, by which we are necessarily bound to make some payment according to the law of the land.” Is it not apparent, that if this be true, that the “chain of the law that binds us to make payments” on our contracts, constitutes the obligation of our contract— that this act, when sought to be applied to contracts entered into out of the State, not only takes from that chain one link, but destroys the whole chain? And if this be so, is not this act in direct conflict with the constitution of this State?</p> <p>As we stated in the first part of this argument, “a contract good where made, is good everywhere.” It cannot be denied but that this contract was good where made, and that it was entered into in good faith. Can, then, we ask, such a law be constitutional, which says that all contracts shall be null and void, and that no action of any kind, can be maintained on such a contract. If this act is constitutional, and can be set up in defence, what will it lead to ? A citizen of this State could enter into as many obligations as he pleased with a citizen of a foreign State, such a contract being good and valid where made; and as a citizen is not bound to know the laws of a foreign State, (1 Burge on Col. and Eor. Law, Pa., 1 Ch., 4) therefore, even if he knew that the goods were to be shipped to this State, he would still consider that he was entering into a contract that could be enforced the world over; but as soon as the merchandise reached this State, the purchaser could “ take advantage of his own wrong,” and defraud an innocent party out of Ms just dues. It can be readily seen what this would lead to. It would open a door to the citizens of this State to commit the greatest frauds with impunity. Not only would they be defended and sustained in so doing, by a. law that impairs and entirely destroys the obligation of contracts, but by a law that impliedly says, that a contract, good where it is made, even if it be of the most solemn character, would be of no validity here, nor could it be enforced, and in so doing violate one the plainest and best settled principles of law. Not only would the wheels of commerce be blocked, but if this law is constitutional, and can be enforced, when applied to contracts effected outside of this State, the credit of this State would be ruined. There are plenty of men residing in this State who would take advantage of this act, and in so doing would not only rob innocent men of foreign States, but would deprive us all of our characters for honesty, and would cast upon our laws a slur and stigma that it would take years to remove.</p> <p>Our last ground of demurrer, and the last point that wo shall argue, is as follows: The facts alleged in said answer constitute no defense to plaintiff’s cause of action. "We find in Story on Conflict of Law, 252, the following: “In certain places particular merchandise is prohibited. If sold there, the contract is void. But if the same merchandise is sold in an other place, where there is no such prohibition, and a suit is brought upon the contract, in the place where the prohibition exists, the buyer will be held liable, because the contract was, in its origin, valid.” On this ground we hold that the matter set up in defense constitutes no defense to plaintiff’s cause of action. "We hope that this question will be fully and fairly considered by your Honors.</p> <p>The wdiole question for the consideration of this court is : Does the statute referred to conflict with the constitutional provision with respect to impairing the obligation of contracts ? or does this contract come under the rule that a contract good where made, is valid everywhere.</p> <p>As a general rule the laws of one State have no force or efficiency beyond the boundaries of that State. Whatever effect is given to the laws of Illinois by our courts, is from courtesy and comity, and not as a matter of right. And our courts will decide as to how far this comity should extend, and will see that the dignity of our laws and the rights of our people shall be maintained and preserved. Story’s Con. Laws, 370, section 244.</p> <p>That the legislature of this State had the right to pass the act in question, and render contracts made within.this State in violation thereof, and after its passage, void, cannot be questioned. It is essentially a police regulation; and if a foreign article be injurious to the health and morals of a community, “ a State may, in the exercise of that great and conservative police power which lies at the foundation of its prosperity, prohibit the sale of it.” Taney, J., in the License Cases, 5 Howard, 504 et seq. And the same justice in those cases says: “ The acknowledged police power of a State often extends to the destruction of property — a nuisance may be abated — everything prejudicial to the health or morals of a city may be removed; merchandise from a port where a contagious disease prevails, being liable to communicate the disease, may be excluded, or even thrown into the sea. This comes in direct conflict with the regulations of commerce, and yet no one doubts the local power. It is a power essential to self-preservation. It is the law of nature, and is possessed by man in his individual capacity. He may resist that which does him harm, whether he be assailed by an assassin, or approached by poison.” And the same doctrine has been affirmed by this court in Scmto et at. v. The State of Iowa, 2 low,a 165, and cases there cited.</p> <p>Does a citizen of another State, then, when he acts in fraud, evasion, or violation of ,our laws, and with the express intention of enabling a citizen of this state to violate those laws, possess any greater rights, or more enlarged privileges, than one of our own citizens, guilty of the same wrongs? or do contracts made without the boundaries of our State, and without the jurisdiction of our courts, when they are made in fraud or evasion of our laws, as in the case at bar, with the knowledge of, and intent to violate such laws, or to enable one of the parties to such contract to do so, possess any more binding force or efficacy than contracts made in our own State under, the same circumstances? And will our courts allow foreign persons to claim their protection, and enforce remedies with their assistance, with regard to contracts made and-acts done, knowingly and wilfully in violation of our laws, and in a manner insulting to our dignity ?</p> <p>If an affirmative answer to these questions is given, it must be upon the principle, that the comity of nations is extended without limit or exception, to all parties making contracts in a foreign State, and that all contracts made in such foreign State, no matter how odious to us, or however much they may interfere with our police regulations, if valid where made, may be enforced in our courts.</p> <p>The principle does not by any means extend so far, but is modified by numerous exceptions.</p> <p>No nation or State is bound to recognize any contracts, or enforce them, which are injurious to its own interests, or to those of its own subjects, (Story Conf. Laws, section 244), and in the language of Marshall, J., in 8 Martin, 95, 97, the same exception “applies to cases in which the contract is immoral, or unjust, or in which the enforcing it in a State, would be injurious to the rights, the interests, or the convenience of such State or its citizens.” And there are further exceptions, such as contracts made in evasion or fraud of a country, or rather of its laws, of the rights or duties of its subjects, contracts against good morals, or against religion, or against public rights, &c. Story Conf. Laws, sections 244, 245, 6, 7.</p> <p>The reason why this international comity has been established is, that innocent parties may be protected; that persons in making contracts are in ordinary cases, supposed to know, and have reference in their acts and contracts only to the local law where such acts are done, or such contracts are made. The courts delight in the protection of the innocent, and in aiding them in procuring their rights; but the reason of the rule, and its good sense cease, when it is attempted to be applied to cases like the one at bar, where the party seeking to enforce the remedy was not innocent, and where he shows that lie did not have reference solely to the laws of Illinois, but intended to be accessory to a palpable violation of the law of this State.</p> <p>We contend, therefore, that this contract cannot be interpreted under the general rule referred to, i. e. “That a contract good where made, is valid everywhere;” but that it clearly comes under several of the exceptions to that rule above mentioned.</p> <p>The only cases referred to by the appellant’s counsel, which would seem for a moment to sustain the grounds taken by him, are the cases from Cowper, 346, and McIntyre v. Pcvrlc, 3 Mete., 207. In these cases, the seller of goods sold to a resident of a foreign State, with the knowledge that the goods were to be re-sold in a foreign State, (where the seller sought his remedy), contrary to law. The case at bar is different, and more strictly comes under the exceptions referred to. Here the plaintiff below sold the liquors, not merely with the knowledge that they were to be re-sold in the State contrary to law, but also with the intent to enable the defendant below to violate the provisions of our statutes. He had not only the knowledge that a wrongful act was to be done, but made himself a party, or a kind of accessory to the defendant, in the perpetration of- that wrong. The intention to assist the defendant below in violating our law, entered into and formed a part of the contract. The simple knowledge might not be sufficient, perhaps, to show that the plaintiff acted and made the contract in fraud- or evasion of Iowa laws, but a deliberate intention to “ enable the defendant to violate, &c.,” most clearly do establish that fact.</p> <p>The authority of the two cases above mentioned (3 Mete. 207, and in Cowper) is, however, denied by Story L, in his Conf. Laws, section 253. He quotes an opinion of C. J. Eyre, as follows: “Upon the principles of the common law, the consideration of every valid contract must be meritorious. The man who sold arsenic to one who he knew intended to poison his wife with it, would not be allowed to maintain an action upon his contract. The consideration of the contract is tainted with turpitude which destroys the whole merit of it. No man ought to furnish another with the means of transgressing the law, knowing that ho intended to make that use of them. ” This reasoning, says Story, “ seems positively unanswerable.” Ib.</p> <p>The same doctrine has been affirmed in other cases. So, in Langton v. Hughes, Lord Ellenborough said, (the court of King’s Bench all concurring), “If a person sell goods with a knowledge, and in furtherance of the buyer’s intention to convey them upon a smuggling adventure, he is not permitted by the policy of the law to recover such a sale.” And in the same case, Bayley, <L, said, “ If a principal sell articles in order to enable the vendee to use them for illegal purposes, he cannot recover the price”— an extract parallel to the case at bar. See, also, Story Conf. Laws, section 254, and eases there cited.</p> <p>The case of Oroutt v. Nelson, 1 Gray, 541, referred to by appellant’s counsel, impliedly sustains the same principle in which the court say, “ that a sale of liquors in Connecticut, without any fraudulent view to their resale in Mass., contrary to law, was not unlawful,” &c. So, also, the case of Hannay v. JEve, 3 Crunch, 242, referred to by appellant’s counsel, is directly in favor of our position. And see sections 254, 255 Story Conf. Laws, cases cited, and note with remark of commentator.</p> <p>From the authorities, therefore, and from a consideration of the reasons which lie at the basis of international comity, we believe that a suitor who has placed himself iu the position of the appellant — who has known that when he made the contract sought to be enforced, it was in violation of our laws, and made with the intent to enable another to violate those laws, and in fraud and evasion of them — will not, nor ought to be, placed on any better footing in our courts, than any one of our own citizens guilty of the same offence,, and that our courts will not permit, under sanction of' their courtesy, or of international politeness, a border warfare to be waged upon our institutions by evil disposed persons of other States; nor will they extend their protection to persons who place themselves in this hostile position.</p> <p>The law of Iowa, above referred to, can in no sense be said to impair the obligations of this contract, for in order to impair an obligation, the obligation must have existed when the law took effect. The law of Iowa is not intended to be retrospective in its character, and it is not contended in this case that it is of such a character. Mr. Parsons, in his work on contracts, says: “The latter, (viz: laws enacted subsequent to the formation of the contract), may certainly impair the obligation of contracts, while the former, (viz: laws enacted prior to the formation of the contract), certainly cannot, because all existing laws enter into contracts made under them, and define and determine that contract.” 2 Par. on Conts., 531. How can the obligation of this contract in the- case at bar, be impaired by the act of Iowa in question, when the contract was made long after the passage of the act, and, as the terms of the contract show, with direct reference to the act?</p> <p>It seems to us that the law of Iowa goes to the remedy of the party so far as all contracts made under these circumstances, since its passage, are concerned, and can in no manner be said to affect the contract itself. Our legislature has told the world, that the sale of intoxicating liquors, for certain purposes, is injurious to the morals, order and happiness of our people, and impedes their prosperity; that the traffic in those articles must be, and is, prohibited; that parties making contracts for • the sale of intoxicating liquors in this State, after the passage of the act, cannot enforce them in our courts, and that contracts made in other States in good faith, and without any fraudulent design, or intent to violate our statutes, may also be enforced in our courts: but that parties in other States, who, knowing our laws, make, contracts in violation of them, and act with an intent to violate those laws, and to enable other persons so to do, can have no remedy in our courts on such contracts. ¥e contend that our legislature had a right, and it was their duty, with regard particularly to a police regulation of so much importance, so to speak and enact. The contract is still enforceable in Illinois; it is not therefore affected by the law in question. The remedy of the party is simply taken away.</p>

<p> Appeal from the Pottawatomie District Court. </p> <p>In Chancery. The bill claims title to two lots in the city of Council Bluffs. Complainant charges that he, and those under whom he claims, had the right to said property as occupying claimants, prior and up to the time the same was entered by the county judge, under an act of Congress and the laws of the State, and at the time the said county judge conveyed the same to respondents. The answer denies all the material allegations of the bill, to which there was a replication, and the cause heard upon depositions and exhibits.</p> <p>The record shows that on the 21st of May, 1857, a jury was “ impannelled and sworn to well and truly try the present issue joined, and a true verdict render, according to law and evidence.” This jury returned the following verdict: “We the jury, find that the defendants are entitled to the possession and occupancy of the lots of land in question, on' the 6th day of April, A. D. 1854.” And then follows this judgment: “ It is therefore considered by the court that the plaintiff take nothing by his bill, and that defendants have and recover of and from the said plaintiff their reasonable costs, and that execution issue therefor.” Complainant appeals.</p> <p>cited 2 Daniels’ Ch. Pr., 1340 ; lb., 1335; Apthorp v. Comstock, 2 Paige, 488; O'Connor v. Cook, 8 Yesey, 535 ; Diet cl v. Holland, 2 Cond., 285; McDcmiél v. Marygoldl, 2 Iowa, 500 ; 5 U. S. Stat. at Large, 657; Statutes of Iowa, 1853, 145; Pierson v. Demid, 1 Iowa, 23.</p>

<p>In an action of right, the defendant cannot, in his answer, set up a title for the plaintiff, and plead to it, and compel the plaintiff to take issue with him on the title thus set up.</p> <p>In an action of right, it is the duty of the defendant to admit or deny the claim of the plaintiff, end to set up liis own. Upon these respective claims and denials, they proceed to trial.</p> <p>An answer in an action of right, which does not state what interest in, or title to the premises the defendant claims, as whether in fee simple or otherwise, is fatally defective.</p> <p>Where a party claims title to real estate, by virtue of occupancy and actual adverse possession, he should aver what length of time and possession he relies upon.</p> <p>A defendant in an action of right, is not obliged to set out the details of his title, but only what he claims; but where he undertakes to show his title, he should give it such definiteness that his adversary may be informed, and may be enabled to meet it.</p> <p>Where a party claims title under the occupying claimant’s act, he should show how that act creates a title originally, and facts and circumstances which show that the right could accrue to the party claiming the benefit of the act.</p> <p>Where in an action of right the defendant answered, alleging that if plaintiff has any title to said land, it is based upon, and derived from, a certain decree of partition, made in the district court of Iowa territory, in Lee county, on the 8th day of May, 1841, in a suit wherein J. S. at al. -were plaintiffs, and IS. A. et al. were defendants, and that the said decree of partition was illegal, fraudulent and void, for the reasons following — setting out seventeen reasons ; and where the defendant further pleaded, that he held the said lands by right of occupancy and actual adverse possession, “for the length of time limited by law,” — by genuine title, derived from an original half-breed Indian, of the Sac and Fox tribe of nations — and by title derived by virtue of the occupying claimant’s law, from the State of Iowa — and denied waste and cutting timber, and that defendant was liable in any manner ; and where the plaintiff demurred to the answer, for the following reasons: 1. The defendant cannot thus set up a title for the plaintiff, and compel him to take issue upon it; 2. The decree of partition cannot be thus impeached collaterally; 3. The statute of limitations, if r.'lied upon, is not so pleaded as to be available, and defendant should state how long he has been in possession — -which demurrer was sustained. Ile/d, That the demurrer was properly sustained.</p>

<p> Appeal from the Scott District Court. </p> <p>This action was brought to recover damages for an injury to the plaintiff and his wife, caused by a defect in a bridge -over a culvert in one of the streets in the city of Davenport. The petition alleges that the defendant is a corporation; that by the act of incorporation, the said city is constituted a road district; that within said city is a street or public highway, called Harrison. street, and another street or public highway, crossing the same, called Third street; that the plaintiff and his wife, on or about the 6th day of August, 1855, were riding in a wagon drawn by one ' horse, going from Third' into Harrison street, at the crossing thereof’ where there is a bridge over a culvert; that by reason of a hole, or defect in the plank or planks of said bridge, his horse fell with his feet through said hole in said bridge; that by reason of the defect in said bridge, the plaintiff’s wagon was upset and overturned, and both the plaintiff and his wife were thrown from said wagon, and greatly-bruised, cut and wounded; that thereby both the plaintiff and his wife, were sick, sore, and disabled for a long space of time, during which time the plaintiff was hindered from his business, and his wife was hindered from serving him; and that by reason of the premises, the plaintiff was' put to great expense in and about the curing of himself and wife, and otherwise greatly injured.</p> <p>The answer of the defendant, after denying the material allegations of the petition, alleges that said bridge was thirty-two feet in length up and down Harrison street, across the centre of Third street, and of sufficient width to spa,n the said gutter; that there were no holes in said bridge, extending sixteen feet either way, from the centre of said Third street, nor did the plaintiff’s horse step into any hole on said thirty-two feet of bridging ; that if plaintiff’s horse got into any hole, and thereby the plaintiff and his wife were injured, it was owing to the carelessness of the said plaintiff in driving across said bridge ; that if plaintiff and his wife were injured, iri. consequence of their horse getting into a hole near the spot named, it was a hole in the side-walk on one of said streets, where the horse went in consequence of the unskillfulness of the driver; that there was on said street a good, sound and whole bridge, twice the width required by law; and that if plaintiff and wife were injured in manner and form as alleged, it was in consequence of plaintiff having a vicious and unmanageable horse. To this answer the plaintiff replied, denying the new matter set up, and averring that the place where the plaintiff’s horse fell into the hole and upset the plaintiff’s wagon, was in another part of said street, where the defendant had built a wooden crossing over a culvert or ditch, made by defendant, to drain the water down Harrison street to the Mississippi river, and the accident occurred on a part of said street where the public were accustomed to, and had a right to pass and re-pass. Rejoinder by defendant, denying that the accident occurred in a part of said street which was the accustomed place of driving across said ditch by the public.</p> <p>The court, on its own motion, among other things, charged the jury as follows:</p> <p>I. If the jury are satisfied from the evidence, that the defendant laid out, opened and established Third street eighty feet in width, and worked and prepared the centre of said street, from gutter to gutter, so that the public could travel upon the same, and with the apparent design and intention, that the same should be so used with teams and carriages, it was the duty of said defendant to keep all that portion of said street, so worked and prepared, in such condition as to be safe for the public to so use and travel upon.</p> <p>II. If the jury believe that defendant dug a ditch across Third street, and along the line of Harrison street, the whole width of the worked and traveled part of Third street, and bridged said ditch with plank the width of said street, in that case, it was the duty of defendant to keep said bridge in repair the whole width of Third street, so that it -would be safe for the public to pass and repass wdtli their teams, upon any part of the same.</p> <p>III. If the jury believe said bridge so constructed, was defective in any part of it, so as to render it unsafe for people to travel over the same with their teams, and the plaintiff' attempted to cross the same, and used ordinary care and prudence in so doing, and that the accident happened in consequence of said defect, then the defendant is liable in this action, and the plaintiff is entitled to recover.</p> <p>IY. In determining what is ordinary care and prudence, the jury will take into consideration the place where the plaintiff started — Ms manner of starting — the character of the horse which he drove — and whether, under all the circumstances, he conducted as men generally would, and whether the care which he exercised, was, upon the whole, proportionate to the probable danger of injury that was before him.</p> <p>Y. If, under the instructions and the evidence, the jury should be of opinion that the accident occurred in consequence of a defect in the bridge, which defendant was bound to keep in repair, and that ‡-he plaintiff* used such care, skill, and prudence as men ordinarily exercise under such circumstances, they will return their verdict for the plaintiff.</p> <p>YI. But if the jury believe from the evidence, that the defect was manifest and apparent, and that th e plaintiff knew that said defect existed, or could have seen the same, by rising ordinary care and prudence, and imprudently and carelessly, drove his horse upon the same, an .d the accident happened in consequence of the imprudence and carelessness of plaintiff; or if the accident could have been avoided, by the exercise of ordinary care and prudence on the part of the plaintiff; or if the jury believe that the accident occurred, not in consequence of the defect in the bridge, but by reason of the short turn which the horse made in turning from Third into Harrison street, then the defendant is not liable.</p> <p>To these instructions the defendant excepted, and asked the court to instruct the jury as follows:</p> <p>I. That the plaintiff in this case, is not entitled to recover, and it will be the duty of the jury to find a verdict for the city, unless the jury are satisfied from the evidence : 1. That there was a hole or defect in 'the bridge; and 2. That the plaintiff used proper and ordinary care in driving ; and the jury must be satisfied from the evidence of both of these facts, before they can return a verdict in favor of the plaintiff.</p> <p>II. That the plaintiff having sued the defendant for damages, the burden of proof is upon him to malte out a case, and he is not entitled to recover, unless he has shown, not only the defect in the bridge or crossing, and the injury, but also, in addition to these facts, that the accident did not happen in consequence of the want of ordinary prudence and care on his part. The court repeats to you that it is incumbent on the plaintiff, to satisfy the jury that the accident did not happen from his neglect; and if the plaintiff has failed, from the whole testimony, to satisfy the jury on this point, he has failed to make out a case and cannot recover.</p> <p>. III. That if Third street is eighty feet wide, and if twelve feet on each side was appropriated for foot passengers ; and if four feet on each side, next to the side-walks, are appro'priated for gutters ; and if the forty-eight intervening fe et, passing over Harrison street, were well bridged, and • was the place where the great pi-oportion of the wagons traveled; and if the place where the plaintiff crossed was not designed to be crossed by wagons; and if persons of ordinary care would not have attempted to cross where the plaintiff did, or if attempting to cross there, could have done so in safety, by the exercise of ordinary skill in driving, you will find a verdict for the defendant.</p> <p>IV”. That the plaintiff cannot maintain this action against “ The City of Davenport,” in its corporate capacity ; it should have been against “The Road District.”</p> <p>The court refused to give the instructions asked by defendant, to which refusal he excepted. The jury returned a verdict for the plaintiff, and assessed his damages at one thousand dollars. Motions for a new trial and in arrest of judgment, were made and overruled, and judgment entered on the verdict. The defendant appeals, and assigns for error the instructions given by the court to the jury, and the refusal to give those asked for by the defendant.</p> <p>in support of their views, cited Drown v. Maxwell, 6 Hill, 592, and cases there cited; JSathbun v. Payne, 19 Wend., 401; Willimns v. Holland, 6 Carr & Payne, 23 ; Pluclmell v. Wilson, 5 lb., 375; Smith v. Smith, 2 Pick., 623 ; Lane v. Crombie, 12 lb., 177; Butterfields. Forrester, 11 East, 61; Harlow v. Hvmister, 6 Cow., 191; Laws of 1855, sec. 4; Laws of 1853, 83 ; Code, sec. 517; Iiovmrd s. Bridge-water, 16 Pick., 189.</p> <p>relied upon Beers s. II. It. R. Go., 19 Conn., 566; Barber s. Essex, 1 Williams C. P., 62; Providences. Clapp, 17 How., 161.</p>

<p> Appeal from the Marion District Court. </p> <p>In this case, tbe parties agreed tbat tbe jury might seal up their verdict and band it to the clerk, and thereupon court adjourned until the next morning. During the adjournment, the jury returned and delivered to the clerk their verdict, finding for the plaintiff in the sum of six hundred and sixty-six dollars, but it was not signed by either of the jurors. On the next morning, this was read, and “ defendant’s counsel objected to the same, because it was not signed by the jurors, whereupon said jury was recalled, in open court, into the box; and again, without objection by either party, retired to sign said verdict.” After being out sometime, they sent a written statement to the court, signed by all the jurors, to the effect that they could not agreed upon a verdict. They were then brought into court and .asked, “ if the verdict sealed up by them and delivered to the clerk, was not their verdict at the time, to which several of the jurors replied, and all assented, saying that it was their unanimous verdict, and assented to by all the jurors at the time it was sealed and delivered to the clerk.” The jury was then discharged, and plaintiffs moved for a judgment on the verdict so sealed and handed to the clerk, which motion was overruled, to which they excepted, and now appeal.</p>

Application to the district court for the allowance of an appeal from the order of the county court, granting to Peter Miller, letters of administration on the estate of Otis Reynolds, deceased. The defendant demurred to the petition, which demurrer was sustained, and the petitioners appeal.

<p>The report of referees or arbitrators, is entitled to, at least, the same consideration as the verdict of a jury.</p> <p>It requires something more than merely the opinion or conjecture of the party complaining, to overthrow the finding of referees or arbitrators. If there is error or mistake in their finding, it must be made to appear.</p> <p>In an action of right, the plaintiff, where beholds the legal title and right of possession to real estate, may recover for the use and occupation of the land, as well as the title and possession.</p> <p>Under section 1233 of the Code, in relation to occupying claimants, a defendant in an action of right, can at any time, while in possession of the premises, file his petition to have the value of improvements made by him ascertained, and to obtain payment for the same, before surrendering the possession.</p> <p>Where in an action of right, the parties, in writing, submitted the matters in controversy to arbitrators or referees, who were to examine the land and improvements thereon ; take testimony, if desired, in order to determine the value of the improvements; to ascertain the annual value of the use and occupation of the land, from the time the plaintiff’s title accrued, until the first of March, 1857; and to ascertain and report at the next term of the district court, all the necessary facts upon which the court was to predicate its judgment; and where on the coming in of the report of the arbitrators or referees, the defendant made an affidavit, that the referees had not allowed him the just and true value of his improvements; that they were worth double the value reported by the referees ; and that he believes that said referees, in arriving at the amount fixed by them, had omitted to take into consideration a part of the improvements made upon the land by defendant, whereby great injury and injustice would be done him, unless-the matters were again referred to them for consideration — upon which affidavit was based an application to the court, to refer the matter anew to the arbitrators or referees, for a full and perfect report, and with direction to strike out so much of the report as awards rents and profits of the land to the plaintiff, which motion was overruled, and judgment rendered on the report in favor of the plaintiff, for the title and possession of the land, and for the defendant, for the value of the improvements, as ascertained by the referees, after deducting the rents; Held, That the application was properly overruled.</p>

Petition for dower in lots 205 and 375, in the city of Dubuque. Petitioner was adjudged entitled to recover, and commissioners were appointed to assign the same. And it appearing that valuable improvements had been made on one of said lots, subsequent to the alienation thereof by the husband.of petitioner, it was ordered that the commissioners make the assignment without including the said improvements.

At the June term, 1856, Burton obtained a judgment against George Crawford, upon which an execution was issued, and levied upon a stock of goods which had, at some previous time, belonged to the said George. The plaintiff claimed the goods, and replevied them in an action brought against J. S. Taupelt, the sheriff. The name of G. W. Burton, as the claimant and real party in interest, was substituted as defendant.

This is an action of replevin to recover the possession of five barrels of ale, commenced before a justice of the peace, and appealed to the', district court. The defendant claimed to hold the property as sheriff of Des Moines county under, and by virtue of, certain writs of attachment in his hands, against one Holmes.

Ajpipeal from the Monroe District Court. On the trial of this cause, the plaintiff, to sustain his action, produced a small book, containing charges against the defendants and other persons, which contained the following account: Edwin Ames & Co., Albia, Iowa, Dr. To Chas. W. Anderson.

The defendant being sued in Guthrie county, he made affidavit that he resided in Mahaska, and not in Guthrie county. The plaintiff offered a counter affidavit, that defendant did not reside in Mahaska, but in Guthrie, and offered further to prove the same. The court refused to hear the evidence offered by the plaintiff, and ordered the change, with ten dollars cost to the defendant, from which the plaintiff appeals.

In May, 1841, a decree’was made for the partition of the Half-Breed Tract, in Lee county, among the several claimants.

In August, 1855, Francis W. Allen departed this life. In September following, three of the defendants were appointed administrators of his estate. One of them, (Thrift), resigned, and in January following, the others, under an order of the proper county court, sold two hundred acres of land, of which Allen died seized, to Butter-worth, and said Thrift.

The plaintiffs bring this action to recover possession of the south-west quarter of the south-west quarter of section sixteen, township eighty-seven, north range twenty-six west, on which is situated a mill and appurtenances. The defendant holds by purchase from the school fund commissioner.

This was a writ of .error from the district court of Boone county, to reverse the judgment of a justice of the peace, in an action of replevin. The errors are: 1. That the justice refused to dismiss the suit on the motion of the plaintiff; 2. That he permitted the jurat to the petition to be so amended as to show that it was sworn to by plaintiffs, at the time of filing; 3. In rendering judgment against, defendant for damages and costs.

This was an action to recover the amount of two , promissory notes, made by defendants to plaintiffs. The defendants pleaded in abatement, another action pending in the Warren district court, upon the same promises set forth in the petition in this suit.

Indictment for selling intoxicating liquors by the glass or dram. The indictment was properly indorsed by the foreman of the grand jury, and -was marked filed by the clerk.

This action is brought against the defendant as the guarantor of a promissory note. The guarantee was written on the back of the note, and reads as follows : “ July 21, 1817, I guarantee the payment at maturity of the within note, for value received.” Upon the trial, the defendant objected to the admission of the note in evidence, upon the ground of an alleged variance between the date of the indorsement of the note offered, and that of the copy set out in the petition.

In October, 1839, Foster & Easton recovered judgment in the circuit court of Dearborn county, Indiana, against tlie defendant and one Folbre. Prior to 1819, Bailey became wbat is termed in the record, “ replevin bail,” for tlie security and payment of said judgment; and in April of that year, the said judgment, by a proceeding in seire facias, was revived against the said defendants and the said Bailey.

The plaintiffs sue upon a contract made April 15, 1850, with the Board of Public Works of the State of Iowa, for the erection of the lock and dam at Belfast, on Section No. 13 of the Des Moines Eiver Improvement.

On the 12tb of December, 1857, the plaintiffs filed two petitions in the clerk’s office. The one, in common form, claiming to recover on a promissory note of $6é8,54, with interest after maturity, and laying his damages at one thousand dollars, which was not sworn to.

Suit on an instrument of writing, which reads as follows: “ State of Iowa, Clayton county — 1855.

Ajypeal from the Keolaik District Court. Suit commenced before a justice of the peace, and judgment rendered against the defendant, on the 7th of June, 1856. On the 26th day of June, as appears from the transcript of the justice, the defendant filed a bond for an appeal, and the appeal was allowed. Notice of the appeal was served on the plaintiff, on the 4th day of September, 1856.

The errors assigned relate to the refusal of tbe court to grant a change of venue, and to certain instructions given at the request of the plaintiff, which will be found stated in the opinion of the court. Defendant appeals.

Judgment for the defendant, and the plaintiff appeals. The material facts and the errors assigned, appear in the opinion of the court.

The record shows that to an indictment charging the defendant with selling intoxicating liquors by the glass or dram, he pleaded guilty, and was adjudged by the court to pay a fine of fifty dollars and costs of said suit, and to stand committed until the fine and costs were paid. It is further shown by the record, that the fine and costs were paid before the taking of the appeal. The indictment charged the offense to have been committed on the 14th day of October, 1857.

An action to recover damages occasioned by the overflow of lands, caused by tlie erection of a mill dam. The material facts appear in the opinion of the court.

Action on a promissory note for $330,00, of which the plaintiff was the assignee. The defendant, Wright, answered, averring payment of the note, except thirty or forty dollars.

Specific Performance. In the district court, one Smith filed a statement that he was a creditor of the respondent, and had attached the land claimed by complainant. This statement was not sworn to. There is nothing to show that Smith was made a party, nor that any steps were taken by him, farther than to file said statement. Decree for complainant, and Smith appeals.

<p> Appeal from the Ileiwy District Court. </p> <p>This suit was brought by the city of Mount Pleasant, to recover of the defendant the amount of the tax imposed upon him by the ordinance of the city, in the shape of a penalty for exercising the business of a transient merchant in the city of Mount Pleasant, without having paid the tax imposed upon him by the ordinances of the city. The cause was first tried before a justice of the peace, and taken by appeal to the district court. The district court decided that the provision of the £- Act to incorporate the city of Mount Pleasant,” approved July 15, 1856, authorizing a tax or penalty on ££ transient merchants,” as such, was unconstitutional and void, and dismissed the proceeding, from which decision the plaintiff appeals.</p>

<p>Under the act entitled “An act authorizing mill dams,” approved January 24, 1855, certain facts are to be ascertained by the jury; and when ascertained and reported to the court, their finding or verdict must be deemed as conclusive upon the matters submitted to them, as the verdict of a jury in any other case.</p> <p>Until the verdict of a jury summoned under the act authorizing mill dams is set aside, their ascertainment of damages must be considered conclusive ; and if the applicant elects to pay the damages, he is entitled to a license for the erecdon of the dam, if it is further ascertained by the jury, that no dwelling house, &c., will be overflowed, or injuriously affected by it, and if it further appears to the court that the same is reasonable, and for the public benefit.</p> <p>In answer to a writ of scire facias, issued under the fifth section of the act authorizing mill dams, approved January 24, 1855, requiring the party to appear and show cause, &c., a defendant cannot assign as cause against the granting of the license to erect a dam, matters legitimately involved in the question of damages submitted to the jury, and pertinent only on an application to set aside the finding of the jury, and award a new inquiry of damages.</p> <p>In answer to a writ of scire facias, the defendant may allege and prove, as sufficient cause why a license for the erection of a mill dam should not be granted by the court, facts which tend to show that the same would be unreasonable, or that the dam, if built, would not be for the public benefit.</p> <p>In proceedings under the act entitled “An act authorizing mill dams,’» approved January 24, 1855, matters that are intended to show inproper interference by the plaintiff with the jury, and mistake or misconduct on the part of the jury themselves, in ascertaining the damages, do not amount to the sufficient cause contemplated by section five of the statute, why leave should not be granted to build the dam, but , come more properly before the court, on an application to set aside the inquisition, and award a new writ of ad quod damnum.</p> <p>The statute authorizing mill dams, approved January 24, 1855, has made provision for compensating a party in money, for all loss, trouble or inconvenience resulting to him from the erection of a mill dam; and if his damages have not been properly assessed by the jury, lie must either make the objection on an application to the court to set aside the verdict and award a new inquiry, or he must rely for redress on that provision of the statute, which reserves to him his right of action against the applicant, for any loss or damage to him from the dam, not actually forseen by the jury, and estimated by them on the inquest.</p>

<p>It is not error to expunge from an answer, matter of which a part is scandalous, and all is redundant and irrelevant.</p> <p>Where it is assigned as error, that the court permitted a witness to testify who was incompetent, the record should disclose the substance of the testimony given by the witness, or that it was material.</p> <p>A judgment will not be reversed, unless it is made apparent to the appellate court, that a new trial is necessary in order to correct some injury resulting from the judgment appealed from.</p> <p>Where it does not appear with reasonable certainty, that the party complaining would be placed in a better condition, by giving him another trial, a new trial should not be granted.</p> <p>The supreme court will not presume a state of facts in order to find er- or, but every presumption is in favor of the ruling in the court below.</p> <p>Where in an action commenced by attachment, the plaintiff, on the trial, offered as a witness one of his sureties on the attachment bond, who was objected to by the defendant, on the ground of interest, but the objection was overruled, and the witness allowed to testify ; and where the record did not disclose the testimony given by the witness, nor show that it was material; field, That it did not appear from the record, that the appellant waB prejudiced by the admission of the witness.</p>