Volume 7 — Iowa Reports

<p>Where a party at the time of the service of an original notice, demands a copy of the plaintiff’s petition, he must designate the place to which he desires the copy to be sent; and if he fails to do so, he is not entitled to a copy before the rendition of the judgment.</p> <p>Where the return on the original notice, shows that the defendant demanded a copy of the petition, but not that he designated where such copy should be sent, it is not error to render judgment against him by default, without showing that such copy had been furnished.</p>

<p>While the supreme court will exercise a supervisory control over the action of the district court, in either granting or refusing new trials, yet in these, as in other cases, the error in the action of the court below, must be made to appear affirmatively.</p> <p>Where it is apparent from the amount in controversy, and the character of the questions involved, that the court below might reasonably conclude that a new trial was necessary, in order to arrive at the merits of the case ; and where it is certified to the supreme court, that the court below, with a full knowledge of all the circumstances, as they transpired at the trial, deemed such second trial necessary, in order to more thoroughly investigate the questions, both of law and fact, the appellate court will not disturb the order granting a new trial.</p>

An action on the exemplification of a judgment recovered by tlie plaintiff against tlie defendant, in the State of Ohio.

This was a suit on an account, originally brought before a justice of the peace, and taken by appeal to the district court.

Moore purchased the stock in trade of Gilchrist, consisting of drugs, medicines, &c., for the consideration of two thousand one hundred and fifty-eight dollars and eighty-eight cents, for part of which he gave his promissory notes, and for part assumed the payment of certain debts, due from Gilchrist to other persons, for portions of the goods, among which was one to Barclay Brothers, of two hundred and nineteen dollars and fifteen cents.

The complainant shows that he executed to Morgan Walters, on the 14th of April, 1857, a mortgage on a certain parcel of land, to secure the payment of two promissory notes, one of which had been paid, and the other for the sum of twelve hundred and sixty-five dollars, fell due on the first of October, 1857; and that Walters had assigned this note and the mortgage to the defendant, Lee, who was about to foreclose the same by the above summary proceeding.

At the October term, 1857, of the district court in Lee county, an indictment urns found against the defendant, for keeping a gambling house. The indorsements made upon the bill of indictment were : “A true bill. Josiah Kent, foreman,” and “Filed October 21,1857. E. J. Leach, el’k, by D. H. Lesner, Dept.

This suit is by Craig, the indorsee and holder, against the maker and indorser of a written instrument without date, in the following words: “For value received, I promise to payD. 0. Foster, or order, the sum of one hundred and sixty dollars, with ten per cent, interest, on and after the election of James Buchanan to the Presidency.

This action was commenced before a justice of the peace. Trial and verdict in favor of plaintiff, on the 10th of May, 1855. On the 28th of that month, defendant perfected his appeal to the district court. At the October term, 1856, defendant filed his motion to dismiss the case, for the reason that no judgment was entered by the justice. At the same term, a rule issued to the magistrate, to correct his transcript.

In Chancery. Bill to redeem, and for a conveyance of a lot in the town of New London, in Ilenry county.

Bill eor an Injunction. The petitioner alleges that lie is the administrator of Almira J. Stringham, deceased; that the said.

O. M. Wilcox and M. J. Delaslimut being in partnership, on the ? 9th day of July, 1856, they dissolved, and the latter sold his interest to Wilcox. At the same time, Wilcox executed to Delaslimut, a mortgage on the stock, to secure the payment of the sum of fourteen hundred and twenty-ñve dollars, the purchase money. On the 22d of July, M. J. Delaslimut assigned the mortgage to. W. W. Delaslimut.

Judgment by default in au action upon a promissory note, dated May 1, 1857, and payable three months after date. The petition was filed September 14, 1857. The return on the original notice reads as follows: “ Served by reading to defendant, Sept. 17th, 1857. No copy demanded,” and was duly signed by the sheriff. The defendant appeals, and assigns as error: 1. That the court had no jurisdiction of his person ; 2.

The defendant was sued before a justice of the peace, upon a promissory note. Although duly served, he made default, and judgment was rendered against him. He appealed, and in the district court filed an answer, denying that he executed the note — denying indebtedness — and pleading fraud and want of consideration. The plaintiff moved that the answer be stricken from the files, and the motion was sustained. From this decision, the defendant appeals.

<p>The essence and requisite of every consideration is, that it should create some benefit to the party promising, or some trouble, prejudice, or inconvenience to the party to whom the promise is made.</p> <p>Whenever any injury to the one party, or any benefit to the other, springs from a consideration, it is sufficient to support a contract.</p> <p>Each party to a contract may ordinarily exercise his own discretion, as to the adequacy of the consideration ; and if the agreement be made bona fide, it matters not how insignificant the benefit may apparently be to the promissor, or how slight the inconvenience or damage appears to be to the promisee, provided it be susceptible of legal estimation.</p> <p>Where the inadequacy of consideration is so gross, as to create a presumption of fraud, the contract founded thereon, will not be enforced ; but in such a case, it is thz fraud which is thereby indicated, and not the inadequacy of consideration, which invalidates the contract.</p> <p>A wife, having the power to convey her real estate in the same manner as other persons, she may convey it to her husband, and in return, or in consideration thereof, receive from him a grant or conveyance of other property.1</p> <p>So she may, for a money consideration, make or execute to him, a release of her interest in his real estate.</p> <p>Where a wife conveys her interest in real estate to her husband, or where she releases to him an inchoate right in his real estate, for a consideration, just and adequate, and untainted hy fraud, circumvention or improper influences, the contract is not void, and in equity she is bound by it.</p> <p>Where after a divorce obtained by the husband, in which action the wife nivele no appearance, and a decree was rendered against her by default, the wife filed her petition against the husband for an allowance of alimony, and a decree was rendered, giving her the sum of one dollar and eighty-seven-and-a-lialf cents per week, during her natural life, which the husband was to pay for her weekly support; and where the husband afterwards executed to the wife a mortgage on certain real estate, to secure the payment of the said weekly allowance, by the terms of which he was to make the payments quarterly, during her natural bfe, instead of weekly, and the wife at the same time, and as a part of the same transaction, in consideration of the sum of sixty dollars and eighty cents, the amount of the allowance made to her by the decree, to that date, and the agreement of the husband to pay all costs and charges in the prosecution of her claim for alimony, and his further agreement to pay said allowance quarterly, executed and delivered to the husband a release and relinquishment of all her right, title and interest in the real and personal estate of her husband, and of all the real estate of which he was seized during the coverture, and all right of dower, except the lien created by the said mortgage ; Held, 1. That the mortgage and contract was not void for want of consideration ; 2. That the release of the wife was not void, for being made between husband and wife.</p>

<p> Appeal from the Marion District Court. </p> <p>Action upon a promissory noto. The original notice was addressed to the defendants, and reads as follows: “ You are hereby notified that there is now on file in the office of the cleric of the district court in Marion county, Iowa, a petition of Hugh "W. Davis, claiming of you one hundred and eight dollars and seventy-five cents, as money due on a promissory note ; and that unless you appear and answer thereto, on or before the 22d day of September, 1S57, judgment will be rendered against you thereon,” and was signed by the attorney of the plaintiff. On the back of the notice was indorsed the following return :</p> <p>“ This came to hand, Sept. 9th, 1857, and served the same day, by reading to "W. B. Davidson and L. Burt, and Sept. 10th, by reading to "W. S. Davidson ; and by certified copy left with Joseph. Kerr’s wife, at his usual residence. No copy of petition demanded.</p> <p>Jonathan Jones, Sheriff.”</p> <p>The defendants failing to appear, final judgment was rendered against them, for the amount due upon the note. The indorsers of the note appeal: The errors assigned sufficiently appear in the opinion of the court.</p>

<p> Appeal from the Henry District Court. </p> <p>In Chancery. Smith loaned to Corbit some fourteen hundred dollars, and as security therefor, received a deed of trust upon certain real estate. The money was not paid. Smith was about to sell under the trust deed, when Corbit, in consideration of the money so loaned, with interest, and the further sum of one hundred and thirty-throe dollars, made an absolute conveyance, or what purported to be such, to Smith. This bill is hied to set aside this deed, and to allow complainant to redeem. The cause was heard upon bill, answer, replication, exhibits, and a great number of depositions. Decree in favor of respondent, and complainant appeals. The facts will be found in the opinion of the court.</p>

Merslion & Bros, executed their promissory note to complainant, and to secure it, the respondents made a mortgage, to foreclose which this suit is brought. To the petition, there was a demurrer for want of proper parties, which was overruled. Decree in favor of complainant, and defendants appeal.

An application for a writ of ad quod damnum on continuing a mill dam across the middle fork of the Nodaway river, on the north-east quarter of the south-east quarter of section two, in township seventy-two north, range fifty-five west, in Adams county. The venue was changed from Adams to Clark county, where, at the October term, 1857, the court rendered judgment in favor of the petitioner, granting the license prayed for.

This suit was commenced April 21th, 1857, aud plaintiffs seek to recover for work and labor performed, and materials furnished, in and about the erection of a certain house, and pray a mechanic’s lien.

An action to foreclose a mortgage. Decree for complainant, and respondents appeals. The material facts will be found in the opinion of the court.

An action to recover damages for an assault and battery. Yerdict for tlie plaintiff, for one hundred and ninety-one dollars. The defendant moved to set aside the verdict, and for a new trial, on two grounds: 1. That the jury adopted an improper method in the assessment of damages ; 2. The discovery of evidence, unknown to him at the time of the trial. The motion was supported by an affidavit of the defendant, and that of two of the jurors who rendered the verdict.

Action by the indorsee against the maker of a promissory note. Judgment for plaintiff. For the errors assigned, and the material facts, see the opinion of the court.

An action upon a judgment rendered in the State of Ohio. The answer denies all the material allegations of the petition, and also pleads a set-off, to which there was a replication and rejoinder.

Trespass. Trial and verdict for defendants. Motion to set aside verdict, and for a new trial — First: Because of the misconduct of the jury; Second: On account of newly discovered evidence. Motion sustained, and defendants appeal.

This was an action under the Code, (ch. 116) for the recovery of real property. The petition is in the usual form.

Motion to set aside a levy and the sale of real estate upon execution. The respondents were regularly notified as in an action. In October, 1855, the plaintiffs obtained judgment for a certain sum against the defendant, and also the establishment of a mechanic’s lien upon a lot in the town of Montrose. The lot was sold under a special execution, in December, 1855, and was purchased by the plaintiff.

Action upon a promissory note. The defendant answering, admitted the execution of the note,- but denied that he is now indebted as alleged, or in any less sum.— He then alleges, that in the autumn of- 1855, one Mark Thompson, being indebted to him' in .the sum of fifteen hundred dollars,. a contract was then entered into by and between defendant, the plaintiffs, and said Thompson ; which contract was verbal, but was to the following effect: That said Thompson agreed to pay,…

The defendants were charged before the police magistrate of the city of Davenport, with violating an ordinance of said city, by offering and exposing to sale fresh meats, in less quantities than one quarter, at a place other than the regularly established market houses. They were found' guilty, fined twenty dollars, and appealed to the district court.

In Chancery. Complainant asks to be quieted in his title to certain real estate — to restrain the respondent, Taliaferro, from committing waste.thereon — to correct a mistake in a deed — and for damages for certain trespasses committed on said land.

Aqypeal from the Dubuque District Court. Bill to redeem from a mortgage, filed on the sixth day of June, 1857.

<p>A judgment by confession entered by the clerk of the district court, in vacation, as authorized by the statute, (Code, sec. 1837), if founded upon a sufficient written statement of the party, verified by his oath, and filed with the clerk, becomes, when read, approved and signed by the judge, at the next-term of the court, (Code, sec. 1578), the judgment of the court in the same sense as any other final adjudication, in any other cause.</p> <p>A judgment by confession, though entered by the clerk, is not to be treated as a judgment rendered by him, but by the court; and is subject to revision in the appellate court in the same manner as any other judgment of the district court.</p> <p>Errors assigned which affect only the form in which the judgment is entered, or which ought to be considered as waived by the consent of the defendant, will not be considered by the appellate court.</p> <p>To authorize the clerk of a district court to enter a judgment by confession, the provisions of the statute must be strictly pursued.</p> <p>Where it is sought to obtain a judgment by confession, without action, upon a promissory note, the statement in writing of the defendant, upon which the judgment is to he entered by the clerk, must state the manner in which the indebtedness arose, to secure the payment of which the note was executed, and that the amount named is justly due, otherwise, the clerk possesses no authority to enter the judgment.</p> <p>A written statement of a defendant, upon which judgment is to be entered by the clerk, without action, upon a promissory note, which merely describes the promissory note, and states that the amount named is due is insufficient to authorize the clerk' to enter the judgment.</p> <p>Where a party confesses judgment, as provided by chapter 107 of tho Code, and judgment has been entered in oonformity with the confession, the defendant, on appeal, may object that the statement required to be made by him, is insufficient to warrant the entry of judgment by the cleric.</p>

Plaintiffs were jointownersof about three hundred bushels of wheat, which was stowed by them in a bin upon the land of defendant. One of the plaintiffs being indebted to defendant, sold him twenty bushels of this wheat. The price was agreed upon, and defendant credited the amount upon his book. The wheat sold was not divided or separated from the main bulk; nor was there any agreement as to when it was to be separated or delivered.

This action was brought upon a promissory note, before a justice of the peace, who rendered judgment for the plaintiff for the amount of the note. The defendant appealed to the district court. He denied indebtedness, and also denied that the words “ten per cent, from date,” which are the last words of the note, constituted a part of it, when it was executed. On the appeal, the issue was tried by the court, and found for the defendant. The plaintiff appeals.

Suit on an instrument of writing in the following form: “ $5000,00. On the first day of April, 1857, for value received, I promise to pay Decker & Knipper, or order, five thousand dollars, and ten per cent, interest.

Bill in chancery in relation to the title of certain real estate. The facts of the case are as follows : Magdalena Eobb, the Avidow of John Eobb, and mother of the complainant, soon after the death of the said John, in 1852, invested six hundred dollars of his money, found in liis possession, in certain lands in Jackson county. She did not take out letters of administration, nor did any one.

Trespass, for that the wife, Sarah Hale, did at, &c., on &c., “ throw a quantity of eggs on to your petitioner, damaging his clothing, and injuring his reputation.” Answer in denial — trial—verdict for plaintiff — judgment thereon, and defendants appeal.

Action on an arbitration bond. The three parties, plaintiffs and defendant, having been co-partners in a certain business, and difficulties having arisen between them, they entered into a bond in the penal sum of five thousand dollars, referring those difficulties to the determination of three certain arbitrators.

The plaintiff sues on certain bills of tlie Agricultural Bank of Tennessee, and as a ground for the defendants’ liability, alleges that defendants prior to the first of June, 1857, were bankers in Polk county, and in the course of their said business, *• represented themselves to be the owners of, and personally liable for, certain bank notes, to-wit: of the Agricultural Bank of Tennessee, as stockholders in said bank; which representations they made by their published card,…

Suit on a bond given by defendants to William Kromer, sheriff of Jasper county, in the penal sum of $2080,00, conditioned, “ that, whereas, the said sheriff has a writ of attachment from the office of the clerk of the district court of Jasper county,-Iowa, in a certain suit pending therein, •wherein Willis P. Cole, administrator of the estate of Samuel K. Parker, deceased, is plaintiff, and the above bounden Mary Parker, is defendant, which said writ bears date April 21st,…

In March, 1851, Wolcott & Co., having a judgment against one Farner, issued an execution thereon, and notified Houston to answer as garnishee. He appeared, made answer as required by the Code, and thereupon, judgment was rendered against him for the amount shown by the answer to be owing. In October, 1851, one Yining, as a creditor of Farner & Go., summoned Houston as garnishee.

This was a suit brought on the official bond of Ogden,, as county judge of Poweshiek county.

Spears, Case & Co. sued Daniel Fortner, for money obtained by him of them under false pretences. In this action, certain goods were attached as the property of Fortner. Before judgment, the goods were sold, and the proceeds paid into the hands of the cleric. After this, Jasper Stout and B. B. & E. II.

Mandamus to the county judge of Marshall county, on the information of Wells S. Rico, requiring the said county judge, to take to his assistance two justices of the peace of said county, and re-canvass the votes cast at the April election, A. D. 1858, in said county, on the question of relocating the county seat of said county, at the town of Marshall, in said county, and in such re-canvass to count the votes cast on said question, in the townships of Legrand, Greencastle,…

Defendant was charged before a justice of the peace, with an assault and battery upon one White. There was a trial, verdict, and a judgment, finding the defendant guilty, from which he appealed to the district, court. It was there'lieard upon an agreed statement of facts — the judgment of the justice affirmed — and defendant now appeals to this court.

Bill for an injunction to restrain tlie city of Davenport, •from opening a street, through the lands of petitioners, 'until an appeal taken by them, from the action of a jury summoned to assess their damages, by reason of the appropriation of the land, shall be tried and determined. The injunction was granted in vacation, by Judge 'Woodward, of the supreme court, and dissolved by the district court, at its next session thereafter, on motion of the respondent.

Appeal front the Van Burén District Court. This suit was commenced April 28th, 1855, on the record of a judgment recovered in the county court of Washington county, Virginia, on the 24th of June, 1835. Issue was joined by the parties on the plea of payment, and there was verdict and judgment for the defendant.

Bill for specific performance. The complainant alleges that, on the 25th of September, 1848, he purchased of respondent lot number two, in block number eight, in Keech’s plat of the town of Libertyville, for the sum of twelve dollars, and gave his four promissory notes, of three dollars each, payable in three, six, nine, and twelve months, and respondent delivered his obligation for a deed, with a condition that if said Leach should pay the notes as they fell due, and said…

Indictment eor Murder. The charge is, that the said defendant did, on, &c., at, &c.,££ with force and arms, wilfully, deliberately, and with malice aforethought, kill and murder •one Mrs. Moran, whose Christian name is to the jurors unknown, with a knife, commonly known as a dirk-knife, by stabbing the said Mrs. Moran aforesaid, in her body, causing a great and mortal wound, from which said mortal wound, inflicted by the knife aforesaid, and by the said Patrick Moran…

Indictment for passing counterfeit bank bills on the Mas-, sachusetts Bank. The defendant was convicted, and pros ecutes this appeal. The facts are fully stated in the opinion of the court.

<p> Apeal from the Lee District Court. </p> <p>Defendant was indicted at the September term, 1857, of the Lee district court, at Keokuk, for the crime of larceny. A special'term of that court was held in May last, .when, defendants moved to strike the cause from the docket. This motion was overruled; defendant was tried and convicted, and now appeals. For the other material matters,. see opinion of the court.</p>

H. Griswold and others, for the establishment of a public road in said county.

Indictment for an assault and battery. The indictment charges that said defendant did, on, &c., at, &c., “ in and upon one Wilber Duel, with force and arms, make an assault, and him the Wilber Duel, did then and there beat, wound, and ill treat, and other wrongs and injuries,'’ &e. Defendant was convicted, and appeals.

This is an indictment under 2750 of the Code, and charged that the defendant did wilfully and falsely mark and brand sixty sacks, containing wheat flour, with the mark and brand, “ 98 lbs. superfine,” with the intent to defraud II. G. Staples and E. F. Winslow, which said sacks of flour, so as aforesaid falsely marked as and for ninety-eight pounds of superfine flour, he, the said defendant, then and there sold and delivered to the said II.

Appeal front the Fayette District Court. Petition upon a note, signed “Eranldin Strickland & Co.,” headed and commencing as follows : “ íl. F. Mc-Gloslcey v. Franklin Strickland and Barber English, late paitners, doing business under the name and style of Franklin Strickland & Co. Your petitioner claims of the defendants the sum of, &c., which he alleges to be due him from the said defendants ; and, for cause of such claim, states, that the said defendants executed a…

Suit upon a promissory note, commenced in the district court. The other facts in the case, are stated in the opinion of the court. The defendant appeals.

Two suits to recover school moneys and school property upon an agreed statement of facts, as follows : “ It is agreed that, on the third day of May, A. D., 1858, an election was held in the city of Dubuque, for the purpose of electing officers for a school district, under the school law of March 13th, 1858; and that, at said election, Henry A. Wiltse received a majority of all the votes cast at said election, for the office of president of the board of directors; that…

Murder. At the May term, 1858, of the Dubuque district court, the defendant was indicted for the murder of his wife, by shooting, and at the August term following, was tried, and convicted of murder in the first degree. From that judgment, he now prosecutes this appeal. The material facts in the case, and the errors assigned, are fully stated in the opinion of the court. I, The court erred in refusing to discharge Charles Corkery from the grand jury.

■ Appeal from, the Fayette District Court. ■ Myers filed his petition in the county court of Fayette county, claiming damages in consequence of the running of the Old Mission and Whitbeck road over his land. From the proceedings therein, he appealed to the district court. A motion was there made to dismiss the appeal, Yvhich was overruled, and damages allowed the petitioner to the amount of forty dollars.

Plaintiff sues upon a promissory note, and .for money due upon an account for goods sold, &c. After the commencement of the suit, the parties settled, and plaintiff executed to defendant a receipt in full, and, in writing, authorized and empowered his attorneys to discontinue the said action. The case was called for trial, and defendant produced this receipt, and written authority to the attorneys of plaintiff, in evidence.

Plaintiffs claim upon an account made with Kemp & Hastings, and which they allege to be their property. Upon the trial, the plaintiffs offered S. W. Hastings, one of the firm of Kemp & Hastings, and also of Hastings ¿sc Co., to prove the preliminary matters required by law, for the purpose of introducing in evidence, the books of original entries of Kemp & Hastings, in which the account sued on was originally entered.

Suit upon a promissory note. Attached to, and following the plaintiff’s petition, is the following agreement: “ As attorney of B. C. Burt, I hereby agree to appear to the foregoing petition, without further notice, waiving the same. I also agree that this petition may be filed at any time within the coming term of court, and have the same force as if filed ten days before the term. J. A. Goodrich, Att’y. for R. E. Burt. September 15th, 1857.

The defendant was indicted for selling intoxicating liquors, without authority of law, contrary to the provisions of the act for the suppression of intemperance, approved January 22,1855, and of the act supplementary and amendatory to the above act, approved January 28, 1857. The indictment was found at the March term of the district court, 1858. The defendant demurred, assigning for one cause, that the grand jury had no legal authority to inquire into the offense charged.

This was a petition in chancery, praying that a sale of real estate, made by an administrator, in the year 1847, may be decreed void, and that the title thereto may be declared to be in the petitioners.

■ An information for keeping intoxicating liquors, with intent to sell the same, was filed against the defendant before a justice of the peace. The defendant made affidavit for a change of venue, alleging that the justice was prejudiced against him, and that the defendant could not obtain justice before him, under the statute of 1853, chapter 58. A change of venue was granted to another justice of the peace, in the same township.

Tbis action was brought to recover certain land in Des Moines county, which was sold by the guardian of the plaintiff, under a license obtained therefor, in the year 1849. The facts sufficiently appear in the opinion of the court, in connection with the questions raised for determination. The judgment of the district court was rendered in favor of the plaintiff, and the defendant appeals.

At a special term of tlie district court of Lee county, lield at Keokuk, in May, 1858,-tbe defendants were indicted for the murder, of Thomas A. Harrison. A motion was made to quash the indictment, for the reason that the same was not found by a legal grand jury; and that the court was not authorized to impannel a grand jury at said special term, which was authorized to be called “ for the trial of criminals, and for that purpose alone.” The motion was overruled.

In February, 1857, the defendant executed his mortgage, to secure to plaintiff the sum of two thousand dollars, due in six months. In August of that year, proceedings were commenced by civil action, to foreclose this mortgage, and in September, 1858, a decree was entered, finding the amount due plaintiff on his mortgage, and awarding a special execution, to be issued on or after the 7th of June, 1859, provided saiddebt was not sooner paid.

Ajypeal from the Chiekasa/w District Court. jVIandamus. On the 5th of April; 1858, an election was held in the county of Chickasaw, upon the question whether the county seat-should be removed from Eorest City to New Hampton. The county canvassers rejected the returns, and all the votes cast in the township of North Washington, which were thirty-seven in number, and all of which were cast in favor of New Hampton.

The petition of plaintiff claims upon an account and a note, and also asks an attachment, which was issued. A part of the account was made with Ryan & McCarn, and the note was payable to their order. To this petition there was a demurrer, for the reason, in. substance, that it did not appear that plaintiffs had any right to the account and note, or to bring suit upon the same.

The indictment, in this case, charges that the defendant, ‘‘ on, &c., at, &c., did' keep a house, situated on lot number two, block number ten, in the city of Wapello, where drunkenness, quarrelling, gambling, and breaches of the peace, are carried on by divers persons, whose names are to the grand jury unknown; and that said defendant, then and there being the occupant of said house, did permit said drunkenness, quarrelling, gambling, and breaches of the peace to be carried…

The defendant was indicted for unlawfully, and against her will, defiling one Nancy Kerr, by force, menace and duress. To the indictment, there was a demurrer: First Because it did not show the person defiled, to be a female; and, second. Because upon its face, it showed the offense to have been committed more than one year before the finding. This demurrer was overruled. Upon the trial, certain testimony was introduced by the state, to which defendant excepted.

The defendant was indicted for keeping a house of ill-fame, resorted to for the purpose of prostitution and lewdness. He was convicted, and now, upon appeal, assigns for error, the giving of certain instructions by the court..

The indictment charged that the defendant did, on the 13th day of October, 1857, at, &c., and at an election then and there held, as authorized… Held: as authorized by law, for the election of Governor, &c., vote, knowing himself not to be qualified. A demurrer to the indictment was overruled. Exceptions were taken to the introduction of certain testimony. A motion in arrest, and for a new trial, was overruled, and the,prisoner sentenced to be imprisoned in the county jail.

The petitioners presented to the county court of Johnson county, their several claims in writing, for damages sustained by them- in consequence of the establishment of a public road through their lands. The county court appointed appraisers to view the ground, and report upon the amount of damages sustained by each claimant, who returned, as their report and verdict, that the petitioners had sustained no damage by reason of the location of said road.

' At the August term of the district court for Johnson county, 1858, Michael Freeman, and others, were tried on an indictment for murder, and acquitted. William Donnelly, the appellee, was summoned and in attendance upon said court, as a witness for the defence; and his fees, as such witness, for his attendance and mileage, amounted to the sum of seventeen dollars and twenty cents.

Trespass guare dausnm fregit — for that defendants entered plaintiffs close, tore down his fence and houses, and injured the grass and herbage. The last count of the petition charges that defendants entered the said close, and carried away certain property, then and there being found, (describing it). The answer denies the trespass — as also the title of plaintiff, or that he was ever in the actual possession of the premises, or entitled to the same.

Action upon a promissory note. The defendant answered, denying that the sum claimed was due, and also pleading usury. No replication was filed.

Action upon a promissory note. The plaintiff demurred to the answer of the defendant, and the demurrer was sustained. The defendant amended, and the plaintiff demurred again, and the demurrer was sustained, upon which the defendant again asked leave to amend, and it was refused. This is the matter assigned as error, and formed the only question before the court.

This .was an information, under oatli, accompanied with an application to the district court for an alternative writ of mandamus, to be directed to the defendant, as county judge of Polk county, requiring him to submit to a vote of the qualified electors of said county, the question: “whether the said county judge should conclude a contract for the building of a court-house for said county, according to the terms agreed upon between him and Isaac Cooper, on the 22d of June,…

This action was brought to obtain execution upon a judgment rendered against Gray in bis lifetime. The petition avers that certain real estate was conveyed by the decedent, to Long, after tlie rendition of the judgment, which, it is prayed, maybe subjected to’the execution.

<p> Appeal from the Scott District Court. </p> <p>Williams sued Soutter & Drew for the price of goods sold and delivered from August 1st to November 4th, 1854. Williams had previously been in partnership with one Taylor, and part of th.e goods were sold and delivered by this firm of Williams & Taylor. On the 4th of October, 1854, Williams bought out the interest of Taylor, including the goods notes and accounts of the firm. After this dissolution, Williams alone sold the remainder of the goods.</p> <p>The facts in relation to the defendants, are these: Soutter was in partnership with one Wray, at the time the goods were sold. On July 27th, 1851, Wray retired, and it is claimed that Soutter purchased his interest. On the 11th of March, 1851, an agreement was entered into between Drew, on the one part, and the said Soutter and Wray on the other part, the substance of the whole of which was, that Drew “ agreed to furnish the parties of the second part, with two thousand dollars, the money to be employed in the business carried on by said Wray & Soutter, for twelve months, subject to the following conditions: That at the expiration of that time, the said Drew shall receive the said two thousand dollars, with thirty per cent, per annum, or ,one-third of the profits accrued from the business, deducting all business expenses, if desired by him, at the expiration of twelve months from the above date. And further, that said Drew shall not be expected to take an active part in said business.” This is signed by Wray & Soutter and Drew.</p> <p>Upon the strength of this agreement, and other evidence, it is contended that Drew was a partner in the firm, at the time of the sale of the goods. The questions made, appear in the opinion of the court. Both parties appeal.</p>

On tlie 15tb of May, 1857, Timothy Fanning, with his wife releasing dower, executed and delivered to J. P. Kerr an instrument of the purport following: .-That the grantors, in order to secure to the… Held: who is known as the cestui que trust.” 1 Iiill on Trustees, 44. It is evident from the foregoing authorities, that the cestui que trust, or beneficiary, must be some other person or party, distinct from the trustee, otherwise there is no trusteeship, nor trust estate. 5.

This case is essentially like. that of Fanning v. IGerr, ante, 450. In this, the note and security were givenjfor the sum of five thousand four'hundred and forty dollars, and for the loan, as is alleged, of four thousand dollars, in one year from the date. The petitioner prays that the illegal interest may be abated, and the legal interest be ordered to be paid to the school fund.

This action is'brought upon a promissory note, made by Bowen & Co., to-.the .order of .Nichols,;Loomis &■ Co., and- ' assigned to plaintiffs. The note purports to have been executed at Iowa City, and is payable at a banking house in that city. Upon the back of the note is the following : “For value received, we hereby guarantee the payment of the within note, and waive demand and protest.

The plaintiff brought replevin against the defendant, to, recover possession - of certain goods, which the defendant had attached as the property of Alexander & Co. The plaintiff claimed them by virtue of an assignment for the benefit of creditors, made by the firm of Alexander & Co. The defendant, who was the sheriff, and served the pro-, cess in the suit of certain creditors of Alexander & Co., contests the validity of the assignment.

The plaintiff sued for the price of goods sold and delivered, and attached, summoning the firm of Coolbaugh & Brooks as garnishees. The only question made arises on the garnishment.

Action upon a promissory note, by the assignee, against the maker and assignors, commenced before a justice, and appealed-by defendants to the district court. Defendants appeared before the magistrate, but made no defense. In the district court, they asked certain instructions, as to the duty of plaintiff to present the note for payment, and upon the subject of protest and notice of non-payment.

The defendant was convicted under an indictment founded on section 2721 of the Code, which provides that “if any person keep a house, shop, or place, resorted to for the purpose of gambling; or permit, or suffer any person in any house, shop, or other place under his control or care, to play at cards, dice, faro, roulette, equality, or other game, for money or other thing,” he shall be punished by fine, &c. The indictment consisted. of two counts, the, first off which…

Jiqyjpeojl from the Dubuque District Court. This was an action to recover'damages for injuries sustained by the overturning of the defendant’s stage coach. The jury having returned a verdict in favor of the plaintiff, the defendants moved that the verdict be set aside, and for a new trial, upon several grounds, one of which was, that the jury adopted an erroneous method for arriving at the amount of the verdict.

The defendant applied for a continuance of the cause, at the April term, 1857, oh account of the absence of a witness ; and filed his affidavit, as required by law, showing, among other things, what, particular facts he expected to-prove by the absent witness.

The appellant assigns as error, that one J. O. Crosby, an attorney at law, presided in the trial of the cause, in the place of Samuel Murdock, the judge of the tenth judicial district, whose duty it was to preside. A bill of exceptions, signed by two members of the bar,certifies that the judge refused to sign the same.

e District Court. An action for damages, for an injury to the person of the plaintiff. In making improvements, and in grading the streets of the city of Keokuk, the authorities had caused' á cut of some twenty-six feet deep to be made on Des Moines street, over which the plaintiff walked, in the night time of the 22d of January, 1857, receiving severe bodily injuries by means of his fall. It is alleged that there was • no fence, failing, or other guard, along the precipice.

Plaintiff sues for the value of a mare, taken up, as he alleges, by defendant; and which he suffered to escape, or failed to return, when demanded. The action was commenced in Allamakee county, in 1855, and a change of venue ordered, on the motion of the defendant, in 1857. After this, by leave of court, an amended answer was filod^ the defendant being required to pay all costs made since the change of venue. To this answer there was a demurrer, which was sustained.

Morrison sued Eossnberger and Stoner upon a joint note. The defendants by their answer admitted the making of the note, but pleaded payment.

Prior to January, 1855, theseparties were in partnership, engaged in the business of buying and selling lumber. They then settled, the plaintiff purchasing from defendant the stock on hand, for which he executed his notes for something over $4,000. A part of these notes remaining unpaid, the payee instituted suit on them, and the plaintiff filed his petition for, and obtained an injunction to restrain the said action at law.

This was a proceeding for contempt. William Gray don & Co. sued out a writ of attachment against the firm of Start & Gaddis, consisting of John Start and Alfred Gad-dis, and caused an attachment to be levied on the goods in their store-room, and an iron safe which was there, with its contents.

This was a proceeding for contempt, and arose upon the same facts with the former case of the state against this defendant, ante, 499. In that, the error alleged was in the .order suspending the license of the defendant, as an attorney at law. In this, the error alleged is in the order imposing a fine. The statement of the case need not be repeated ; but such further facts as may be necessary, if any, will be noticed.

The plaintiffs, in their petition, ask for an attachment, and for cause, state under oath, “ that said defendants are in some manner about to dispose of their property, without leaving sufficient remaining for the payment of their debts.” Amotion was made to dissolve the attachment, for the reason that the cause stated was not siifficieut to entitle plaintiffs to the writ — the law requiring that they should state the manner in which defendants were disposing of their…

The defendant was complained of for keeping a disorderly house, under the ordinances'of the city of Muscatine. The .offense was cognizable by the mayor.

Replevin for certain promissory notes, two horses, a lot of jewelry, and other articles of personal property. The court instructed the jury: “That promissory notes are chases in action, and not the subject of replevin ; and that, as to the notes replevied in this action, they will find for defendant.” To this instruction, plaintiff excepted. Yer-dict and judgment for defendant, and plaintiff appeals.

The defendants executed a promissory note of the following purport: On the second day of June next, we, the JBoard of School District No. One, Newton township, promise to pay to the order of Samuel Lyon, the sum of two hundred and thirty-eight dollars and twenty-two cents, for value received; which was signed by the names only of the three defendants, without any addition or other description.

The plaintiff purchased the land in controversy on the 1st of June, 1855, at a sale of lands for delinquent taxes, assessed for the year 1854, in Johnson county, and took a deed. In December, 1855, a bill was filed by the petitioner against Josiali Bookwalter, as owner, to foreclose the equity of redemption. In June, 1866, John M. Wheeler filed his motion to be made a party defendant, and for leave to defend, representing that he was owner of the land in question.

This is a proceeding in equity, to compel a conveyance of an interest in certain real estate, and quiet the title of the complainant. The pleadings and the facts are fully stated in the opinion of the court. The complainant appeals.

On the trial of this canse before a jury, the plaintiff offered in evidence an instrument, of which the following is a copy.: “ West Union, May 4th, 1857. Forty days after date, I promise to pay S. S. Green, or bearer, the sum of one hundred dollars, value received — said sum being money duo for building my flouring mill in Auburn, Fayette county, Iowa, with six per cent, interest.