Volume 8 — Iowa Reports

In Equity. The separate creditors of Orlando Curtis levied on personal property of the firm of Hubbard & Curtis, of which he was a member.

In the year 1844, Charles H. Miller filed his bill in chancery in the district court of Des Moines county, against Robert Ralston, and Mary H. Ralston, his daughter, to subject to the payment of a judgment in his name against said Robert Ralston, lots 238 and 239, A., in Burlington, the title to which was alleged to have been procured to be made from the United States by the said Robert to his infant daughter, the said Mary H., while he, the said Robert, was largely indebted…

Slander. The speaking of the words is denied; and, among other things, it is set up in the answer that plaintiff’s character was not injured by the alleged speaking. Evidence was introduced tending to show that plaintiff was a man of bad general character.

In Chancery, for an injunction to restrain defendants from flowing b&ek the waters of the Nodaway river, by their mill-dam, upon the land and mill-site of complainants. On the hearing, a perpetual injunction was granted as prayed for. Defendants appeal. The material facts appear in the opinion of the court.

The plaintiff and the defendant, Hammond, were partners, under the name and the style of Hammond & Tomlinson. The defendant, Twitch, purchased the interest of Hammond, and the business was afterwards conducted in the name of Tomlinson & Co. Twitch bought out Tomlin-son, taking all the assets, and undertaking to pay all the debts of both firms.

The action is upon an open account for goods, wares and merchandise, sold and delivered, and was commenced by-attachment. The material facts and errors assigned, appear from the opinion of the court.

<p>Where a husband introduces a woman of profligate habits into his house, and permits her to remain there as an inmate, the wife will be justified in withdrawing from his protection, and he will be bound to provide her with necessaries.</p> <p>The husband is required to supply the wife with necessaries, such as meat, drink, clothes, medicine, &c., suitable to his degree and circumstances ; and if he, by his treatment, shall render her situation unsafe, or their • home unfit for a modest and chaste woman to remain in, he sends her from home as effectually as if he turned her out of doors without cause; and, under such circumstances, he gives her a general credit for necessaries, for which he will be liable to any one furnishing them.</p> <p>In order to enable a plaintiff to recover for necessaries furnished the insane wife of the defendant, when compelled to leave his house, on account of either his cruel treatment, or because of his making lewd and profligate women inmates of her home, it is not necessary that the plaintiff should show that he furnished such necessaries as the regularly appointed guardian of the wife.</p>

<p>The single fact that a mortgage of real estate, is found upon the records of a county, raises no presumption of its delivery to, and acceptance by, the mortgagee, against the positive and unqualified denial of the mortgagee and those claiming under him, that he ever received such a mortgage, or had any knowledge thereof.</p> <p>Nor is the finding of a mortgage upon the records of the county, an acceptance or knowledge of which is denied by the mortgagee and those claiming under him, presumptive evidence of a prior conveyance of the mortgaged premises, by the mortgagee to the mortgagor, or that the mortgagor had a title which the mortgagee, or those claiming under him, would bo estopped from denying.</p> <p>Acceptance of a mortgage by the mortgagee, is necessary to constitute a delivery; and if there is no delivery, there is no mortgage.</p> <p>To constitute a delivery of a mortgage, there need not be an actual manual delivery of the instrument, by the mortgagor to the mortgagee, but there must be some act upon the part of both, which, in legal contemplation, would be equivalent to it.</p>

<p> Appeal from the Jackson District Court. </p> <p>This was an action on an account for work and labor done. The work was done by one Williams, for the defendant, and the account assigned by him to Mathews & Reeves, who commenced suit' thereon. During the pendency of the action, they assigned the claim to Willey, who was, on motion, substituted by the court as plaintiff.</p> <p>During the trial, Williams was offered as a witness by the plaintiff. Being examined on his voire dire, he stated that he had assigned the account sued on to Mathews & Reeves, for a valuable consideration, in payment of a claim held against him, by them, for goods, wares and merchandize. The defendant then objected to the witness giving any evidence. The court overruled the objection, and defendant excepted.</p> <p>The plaintiff had declared as in assumpsit, for the value of certain brick work alleged to have been done by said Williams for defendant, at his request, and for which he had promised to pay the said Williams, what the said work was reasonably worth; and plaintiff alleges that the same ivas reasonably worth nine dollars per thousand, amounting to the sum of $1,117.00. The defendant answers, denying any such promise, or indebtedness to plaintiff; and averring that said Williams and defendant, on the 27th of September, 1856, made an agreement in writing, whereby Williams agreed to furnish the necessary materials, and to do all the briclc work in the erection of a building for a flouring mill, of the size of forty by forty-five feet; with an engine house attached, forty by eighty feet; that Hall was to have the foundation for the same ready by the 10th of April, 1857, and to pay the said Williams for his work at the rate of eight dollars and fifty cents per thousand, of which the sum of three hundred dollars was to be paid by the first day of January, 1857, one half of the remainder of the price of the work to be done, to be paid as the work progressed, and the other half when the work was completed; that the brick' work of the mill was to be done by the 1st of June, 1857, and the engine house by July 1, 1857; that after-wards by agreement of parties, the said defendant increased the size of said building to forty by sixty feet; and that it was agreed by the parties that such alteration by defendant of the size of the said building, should in nowise affect said written agreement between said Williams and defendant, except that such additional length of time as was reasonable should be allowed to the said Williams for the completion of the increased amount of work rendered necessary by the change of the size of the building, and that the terms and time of payment were to remain the same as fixed in said written agreement; that the defendant erected the foundation for the building, and had the same ready for the brick work, within thirty days after the time fixed by the written agreement; but that the said Williams has not built the said mill, but has left the same incomplete and unfinished, and has not commenced to erect the said engine house, or bestowed any labor on the same.</p> <p>The plaintiff, in reply, admits the making of said written agreement, but avers that the same was wholly abandoned by defendant; and that he failed to provide a foundation for said building, and failed to make the payments to "Williams as therein agreed upon. He denies that Williams made any agreement with defendant for changing the size of the building, or that such change should not affect said written agreement as alleged, or that the change in the size of the building, was made with any such understanding. He denies that any time was stipulated within which said enlarged building was to be completed, and denies that Williams ever agreed to complete the same, or at any time, since the aban, donment of said written agreement, agreed to build or finish said engine house. He further avers, that Williams having commenced the erection of said building for defendant, ceased to work upon the same by reason of the failure of defendant to furnish timbers for the floor of the third story.</p> <p>The defendant, rejoining to the replication of the plaintiff, denies that he abandoned the said contract in his answer set forth; and denies that said Williams ceased to work on said building by reason of the neglect of defendant to furnish timbers for the third story.</p> <p>On this issue joined by the parties, the defendant, in the language of the bill of exceptions, “ offered to prove by parol, an agreement made subsequent to the original agreement, liew and distinct from, the original agreement, and upon a new consideration — which agreement was additional and supx>letory to the original agreement, and adopting the provisions of the original agreement so far as apxfficable to the new agreement.”</p> <p>To the introduction of this evidence the xfiaintiff objected; the objection wras sustained and the evidence excluded. The jury found a verdict for the plaintiff, for $1,030,75. A motion for a new trial was overrruled, and there was judgment on the verdict.' Defendant ax^peals.</p>

<p>The pleadings in a cause, unless the contrary appears, make up the issue, with reference to the right of the plaintiff to recover at the time he commenced his action.</p> <p>"Where a matter of defense arises after the commencement of the action, it cannot be pleaded in bar of the action generally ; but if it arises before plea or continuance, it must be pleaded as to the further maintenance of the suit; if after plea pleaded, and before replication, or after issue joined, then puis darrien continuance.</p> <p>The rule at common law as to the time and manner of pleading, is not changed by the practice under the Code.</p> <p>Evidence cannot be given of matter arising after the commencement of the action, whether it occurred before or after plea pleaded, unless the foundation has been laid bj'- the proper pleadings.</p> <p>Where in an action on a promissory note, the answer “ denies that the plaintiff holds against him any such notes as are described in his petition,” such a denial, without more, relates to the time of commencing the action; and means only that it is denied, that plaintiff holds such notes asare described.</p> <p>Where in an action on a promisssory note, commenced in the name of the payee, the defendant relies upon the fact, as a defense, that the plaintiff has transferred his interest in the cause of action, he should plead affirmatively that the note was the property of another, naming him, and that such other person was the real party in interest.</p> <p>Parties cannot make an agreement, before action, in relation to the assignment of a written contract, that shall have the effect of placing upon the record, a plaintiff who has no real interest in the prosecution of the action.</p> <p>After an action has been commenced, however, the plaintiff may sell and dispose of the judgment he may recover, without investing the person purchasing it, with the legal interest to the chose in action; and under such an assignment, it would be improper for the court to substitute the holder of it as plaintiff in the action, with the power to prosecute in his own name.</p> <p>Where in an action on four promissory notes, commenced in the name of the payee, before the defendant answered, there was filed with the papers in the cause, an instrument in writing, as follows: “Whereas, I, T. F. A., have commenced a suit in the district court of D. county, to the November Term, 1857,05. S. N., claiming §55,000, as money due me on four promissory notes, on which an attachment has been issued: Now, therefore, in consideration of the sum of §>1,500, to me in hand paid by L. N., of the same place, the receipt whereof is hereby acknowledged, I do hereby sell, transfer, and set over to the said L. N., for said consideration, said suit, and the claim, &c., and all the interest which I have in and to the same, and any judgment I may recover in said district court, in said cause; and authorize the said L. N., in my name and stead, to prosecute said suit in my name and stead to final judgment, and receipt for the same to the said S. N.; and generally to do and perform all acts and things in my name, that may be necessary for him to do, to perfect his judgment lien, and to collect the same, against the said S. N. as fully, as I myself could do — he at all times acting only for his benefit, and in his behalf; and I hereby, for the consideration aforesaid, authorize the said L. N. to prosecute the said claim, so in my name as aforesaid, but at his costs — hereby covenanting that I will in no event claim anything that may be recovered in said suit, or that may be obtained in said case against said S. N. Witness my hand, this 12th of October, lSSt,” and which was signed by the plaintiff; and where the defendant answered, admitting the execution of the notes, and denying “ that plaintiff holds against him any such notes as are described in his petition; ” and where on the trial of the cause, the plaintiff offered the notes in evidence, on which notes there were no indorsements, and thereupon the defendant called the attention of the court, to the said assignment on file, and asked that the jury be instructed to find for said defendant, on the ground that the said assignment showed that the suit wap not prosecuted in the name of the real party in interest; and where the court ruled that judgment could not be rendered in the name of the plaintiff, but that he might amend, by substituting the assignee in his place, and take a continuance of the cause, which the plaintiff declined to do, and the court then instructed the jury to find for the defendant; Held, 1. That it was error to instruct the jury to find for the defendant; 2. That the assignment did not invest the assignee with the legal interest in the notes, and was only a transfer of the judgment the assignor expected to recover.</p>

The plaintiff claims damages for the seduction of his daughter by the defendant.

Trespass guare clausum fregit, for that defendants, on, &c., at, &c., did enter upon the lands of petitioner, and injure, destroy, pull down, and carry away, the dwelling houses, out-houses, stables, fences, steam saw-mill, engine, and all the other tenements, buildings and improvements “ situate and. being thereon, erected and built, and attached to the said premises of the property of said petitioner,” &c. Answers by all the defendants, denying the petition and further…

Berner sued Erazier in an action of trespass before a justice of the peace. Before the jury were sworn, or the trial commenced, the defendant filed his affidavit, and moved the court for a change of venue, on the alleged ground that the justice of the peace was so prejudiced against him, that he could not obtain justice before him. The motion was overruled.

In Chancery. Bill sets up that a certain judgment in favor of Tevis, Scott & Tevis, and against tlie firm of Cole, Lyon & Co., has been fully paid, and prays an injunction, &c. Decree in favor of complainant, and respondents appeal. Por tbe material facts, see the opinion of the court.

This is an action of replevin, to recover the possession of certain personal property described intbe petition.

At the time of commencing their action, plaintiffs sued out an attachment. The answer admits the correctness of plaintiffs’ claim ; denies so much of the petition as states the grounds for an attachment; sets up that the attachment was wrongfully sued out; and by way of set-off, claims damages for such wrongful act. On plaintiffs’ motion, so much of the answer as took issue upon the. cause stated in the petition for an attachment, was stricken out.

Tiie plaintiff sued the defendant, before a justice of the peace, for sixty-four dollars, for work done and performed for defendant, at his instance and request. The defendant denied owing the plaintiff anything, and pleaded a set-off of seven dollars, for casli paid to plaintiff’. On the trial before the justice, judgment was rendered for the defendant.

This action was brought upon a promissory note. The answer admits the execution of the note, but says it was given in part payment for a reaper sold him by plaintiff’s agent; that said reaper was warranted to perforin in a certain manner, (which the pleader sets out), and avers a breach, and an offer to return.

This action was commenced by a widow, before a justice of the peace, to recover for the services of her minor son, and taken by appeal to the district court. The original notice was served upon the defendant., and informed him that the plaintiff claimed of him $565,50, as money due her for the labor of her son Anthony, and that the above amount was justly due her as the balance of accounts for said labor of her son. Judgment for the plaintiff, and defendant appeals.

Plaintiff sues as the assignee of a promissory note, made to one John R. Moffit.

Whipple commenced suit against Cass, in the district court of Linn county for the sum of $10,269 Yl, and prayed an attachment against his property, on the alleged ground that the defendant was “ about to dispose of his property, without leaving sufficient remaining for the payment of his debts.” Notice of the suit was served personally on the defendant, and a writ of attachment issued, under which his property was seized by the sheriff.

In March, 1858, a petition was presented to the county judge of Eloyd county, praying that a vote might be taken at the succeeding April election, upon the question of the removal of the county seat from St. Charles to section twelve, township ninety-five north, range sixteen west, near the geographical, center of the county. The petition was granted, and notice issued for such an election.

Dower. The land in which dower is claimed, was located by virtue of a military land warrant, issued by the United States to Ora M. Burke, the husband of the plaintiff. This warrant was sent from Ohio to J. W. McCaddon, of Johnson county, Iowa, by one Easton, with directions to sell it. It was not assigned, and was not, by the law in force at the time, assignable.

The defendant was indicted for perjury, upon a matter in which it became a question whether one George Seaton had given ten dollars to-one Peter Ebe, in the county of Henry, in the month of December, 1856, to be by him paid to one Milliken Clark, and whether the said Ebe did so pay it over; upon which the defendant testified that he saw the said G. Seaton give the said sum of money to the said Ebe, some time in the latter part of December, 1856, which said Seaton requested…

Replevin for a mare and set of harness, claimed as exempt from execution.

The bill in this case alleges, that in May, 1857; the defendant, Lee, sold his co-defendant, Marsh, certain lots in the town of Mount Pleasant, at the price of $3,000; that one-half the purchase money ivas paid, and for the remainder, Marsh executed his two promissory notes for $750 each, payable January 1st and March 1, 1858; that it was agreed that Lee should retain the title to the lots, until the notes were paid, and give to Marsh a title bond, for a conveyance, on the…

The petitioners applied for an assessment of damages, in consequence of the railway of the defendant’s running over their land. The proceeding was under the act of January 18, 1853. Acts of 1853, 58. The sheriff sets out his proceedings in the appointment of a jury, the swearing them, their report, &c., and says nothing concerning having notified the defendants, and it is not shown that they appeared.

Tins bill was filed by the complainant, Levi, to havla^a dissolution of the partnership, and a settlement of the51' partnership accounts, &c. The parties were carrying on the business of mining for lead-ore on lots 264 and 265, in Dubuque county. Their respective mining interests in said lots were as follows : In lot 264, called the “ Starr” lot, Levi owned eight-eighteenths, Karrick five-eighteenths, and Jones five-eighteenths of the mining interest.

District Court. Breach of promise to marry. Judgment for the plaintiff, and the defendant appeals. The facts, material to an understanding of the questions decided, sufficiently appear from the opinion of the court. in relation to the overruling of the affidavit for a continuance, cited Welsh v. Silvery, 4 Iowa, 241. Upon the other points made by them, they cited no authorities. I. — 1.

This was an action upon a promissory note for $1,050. commenced by attachment, on the ground that the defendant had property, goods, or money, lands and tenements, or choses in action, not exempt from execution, which he refused to give either in payment or security of the said debt.

Trespass for taking and carrying away personal property. Defendant is the treasurer of Muscatine county, and justifies the seizure, possession and sale óf the property, under a warrant for the collection of certain taxes. The questions made, arise upon demurrers to the answer and replication. The demurrer to tbe answer was overruled; that to the replication was sustained. Plaintiffs appeal. The facts are sufficiently stated in the opinion of the court.-

The defendants were indicted jointly with Alexander McClintock, and Alexander McClintock, junior, for an assault and battery upon Reily Lloyd and Abraham Haynes.

This was an action of replevin, commenced before a justice of the peace, for two hundred and fifty bushels of oats.

Tile plaintiff claims of the defendant the sum of seven hundred and seven dollars and fifty cents, which she alleges to be due to her, and states her cause of action as follows : “ that defendant leased of plaintiff the ‘ National Hotel ’ building in Burlington ; and that the above sum, with interest thereon, is due and owing petitioner, as a balance due on the several leases executed by petitioner in favor of defendant for the said building, a particular account of which…

Plaintiff declared before a justice of the peace, upon two notes made by Martin P. M’Cready and Jackson Wilson. M’Cready was not served. Wilson was served, and failing to appear, judgment was entered against him by default.

Ajpjpeal from the Polk District Cow't. Suit on a promissory note for the sum of one hundred and fifty-nine dollars, payable to G. W. Savery, or bearer, three months after date, and dated May 28,1851. The defendant obtained a rule against the plaintiff’s attorney, to show the authority under which he appeared to prosecute the action.

The plaintiff sued the defendant, claiming the sum of $164 50, and averring that at the special instance and request of defendant, he worked for him ninety-four days, and defendant promised to pay him therefor $1 75 per day, which he now refuses, &c. The defendant answered, denying that plaintiff worked ninety-four days, as alleged; denying that he owed the plaintiff $164 50, as alleged, or any part thereof; and denying that he undertook and promised to pay plaintiff $1 75…

<p>Where a lease of a building provided, that if the lessee would put up a summer kitchen, adjoining the rooms leased, on the south, the lessor would pay him the cost of it, at cash rates, at the expiration of the lease ; and where the lessee built the kitchen, and on the day it was completed, assigned the demand for the payment of it, on the lease, as follows : “ For value received, I hereby assign to F. Z., all my rights and benefits of the last clause of the within lease, and empower him to collect the cost of the said kitchen, and apply the same for his own benefit Held, 1. that the fact that the agreement to pay for the kitchen was in writing, did not constitute it such an agreement as is intended by section 949 of the Code; 2. That the claim assigned was only an open account, coming under section 951, which permitted the assignee to bring suit on the claim, in his own name, and gave the debtor the right to avail himself of any defense or set-off, legal or equitable, against the assignee which he had against the assignor, before the commencement of the suit-</p> <p>T. made to F. a written lease for five months, of part of a building in Keokuk, at §10 00 per month, payable at the end of each month. As this lease was about to expire, it was extended by a new lease in writing, for one year, the rent payable as before, the last clause of which lease provided, that if F. would put up a summer kitchen adjoining the rooms leased, on the south, T- would pay him the cost of it at cash rates, at the expiration of the lease, which lease expired on the 26th of April, 1858. F. built the kitchen, which was finished on the 16th of October, 185|7, and on the same day assigned the demand for payment to Z., by writing on the lease as follows : -‘For value received, I hereby assign to F. Z., all my rights and benefits of the last clause of the within lease, and empower him to collect the cost of said kitchen, and apply the same for his benefit.” Z. then sued T. for §60 00, the cost and value of the said work, and the defendant claimed a set-off of §50 00, as due him from F., for the last five months’ rent of the premises, and §10 00 for the use of another lot; Held, That the defendant was entitled to set off-the rent against the cost of the kitchen.</p>

Suit commenced before a justice of the peace, to recover a balance alleged to be dute on a contract for building a school house. Upon appeal to the district court, certain evidence offered by the plaintiff, being objected to by the the defendant, was excluded by the court; upon this ruling of the court.,- and upon the ordering a non-suit, the errors are assigned.

An action on an account for goods, wares, and merchanr dise sold and delivered. The defendant denied the indebteclness.

The defendant was indicted for forgery, in writing tbe name of one Fay across the back of a certain order, drawn by a bank in Rhode Island on a bank in New York, with intent to defraud, &c. Objections were made to the manner of impanneling the grand and petit jury, as also to the indictment, all of which were overruled. Exceptions were taken to the admission of certain testimony, and to the giving and refusing of certain instructions.

This is an action of trespass, for taking and carrying away certain goods, wares and merchandize, which the plaintiff claimed as assignee of Chandler & Bell, under an assignment for the benefit of their creditors.

This action was commenced in Webster county, by plaintiff against one Mclnturff. An attachment was issued to the sheriff of the county, and returned served by attaching certain real estate. There is nothing to show that any writ was issued to Story county.

The indictment in tliis case charges that “ the defendant, on the 11th day of October, 1 857, one brown heifer, of the value of twenty-five dollars, of the property of W. King, did steal, take and carry away.” The indictment ivas found at the November term of the district court, 1857, and was tried at the October term, 1858. The jury found the defendant guilty, and that the value of the property stolen ivas fifteen dollars.

The plaintiffs appeal from, tbe orders of the district court, suppressing a deposition, and awarding a change of venue. Eor the facts, see the opinion of the court. cited Baldwin et ux. v. The M. db M. Railroad Go., 5 Iowa, 518 ; Bristol v. Chicago and Aurora R. R. Go,, 15 111., 436. cited Code, 329 ; Bddiucum v. Kirk, 3 Cranch, 293; Bank of U. S. v. Mo Kinsey, 2 Brock., 393; Louisville, G. Gh. R. R. Go. v. Letson, 2 How., 497 ; Angel & Ames on Corp., 97 ; lb., see. 407.

Yon Puhl recovered judgment against Dungan for the possession of a tract of land in Lee county, and this suit is brought by Dungan to stay execution of the judgment, and to obtain payment for the improvements on the land, under chapter 80 of the Code of Iowa.

This actiou, upon a promissory note, was commenced before a justice of the peace. The defendant was served, but made default and appealed. In the district court, he filed an affidavit for a continuance, upon the ground of the want of the testimony of a witness, under section 1766 of the Code.

The plaintiff, at the November Term, 1856, recovered judgment against defendant, for near the sum of one thou, sand dollars. At the July term, 1858, a motion was made by plaintiff, to correct the record of said judgment, in such a manner as to show that plaintiff’s mechanic’s lien, was established upon a certain tract or parcel of land, which is fully described. This motion was sustained, and defendants appeal.

Dominion loaned to the Dubuque & Pacific Railroad Company, twenty thousand dollars, for which the company gave its obligations, in the shape of acceptances, payable at the office of the company in the city of New York, in ninety and one hundred and twenty days.

An action on a promissory note, which read as follows : “ $181 86. Twelve months after date, we, or either of us, promise to pay Snell & Butterworth, or order, one hundred and eighty-one 86-100 dollars for value received, to draw ten per cent, interest from date, if not punctually paid. February, 10, 1857,” to which the defendant filed a plea of usury.

Plaintiffs brought their action to recover fur goods, wares and merchandise sold to defendant, and for an amount paid for him to the firm of Hancock & Co., as shown by bill of particulars annexed. The bill of particulars contains a number of items, the last one being “ May 17,1857.

The plaintiff sued before a justice of the peace, claiming fifty dollars for the value of a dog, killed by defendant. The answer admits the killing (says, however, that the animal killed was a bitch); that at the 'time he was the regularly authorized and acting marshal of the city of Burlington, and that there w'as an ordinance in force in said city in relation to dogs.

At the April term of the district court, 1858, the defendant was indicted for having in his possession thirteen forged and counterfeit bank bills, with intent to defraud, knowing them to be so counterfeited. The defendant filed a motion for a change of venue, a motion to quash, and a demurrer, which were successively overruled; and he then filed a plea of not guilty, and a special plea. To the special plea a demurrer was filed, and sustained by the court.

<p>In an action of trespass, the defendants justified as president and secretary of a school district, and claimed that in October, 1855, a schoolhouse tax was assessed in said district upon the property therein, including that of plaintiff, and that for the purpose of collecting said tax, they levied upon and sold the property. For the purpose of proving the assessment, the defendants offered to prove, by competent witnesses, the loss of certain records belonging to said district, in 1856, and then to prove the contents of said records. The witnesses, in speaking of the records, described them as being kept on half sheets and quarto sheets of paper, not bound in book form. To all this testimony the plaintiff objected, for the reason that the evidence did not show such a record as a .school district was required to keep, and that the existence and contents of a public record could notbe proved by parol; Held, That the evidence was admissible.</p> <p>After proof of the loss of a record, its contents may be proved, like any other documents, by secondary evidence.</p> <p>Where the original record is lost, and a copy can be produced, the copy is better than parol evidence of its contents, and its production should be required; but if the existence of better evidence is not disclosed, then the contents may bo proved by parol.</p> <p>Section 1126 of the Code is but directory; and the failure of the secretary of a board of directors of a school district, to record all the proceedings of the board, and of the district meetings, in separate books, to be kept for that purpose, or a record of them upon loose sheets of paper, instead of a bound book, will not render the proceedings of the board or district void, nor make persons subsequently in office liable for the failure of their predecessors to comply with a directory provision of the statute.</p> <p>Where in an action of trespass, in which the defendants justified as school officers, and after they had established the contents of a lost record of the school district, showing that a school-house tax had been levied in the district in 1855, the defendants offered in evidence a paper in the hand-writing of the secretary of the district, (but whether in that of one of the defendants, did not appear,) showing the amount of tax due from the several citizens of the district, containing the names of the plaintiffs and others, with memorandums as to who had paid, which paper, the bill of exceptions states, was the only written evidence remaining of the tax list of 1855, to which evidence the plaintiff objected; Held, That if the paper offered in evidence, was a copy of the assessment-roll provided for in section 1130 of the Code, or one of the list posted up, as provided for in that section, it was properly admitted in evidence.</p> <p>Where there is a failure to collect a school-house tax during the year in which it is levied, the power and authority conferred by the warrant does not expire with the year, where the tax is levied upon personal property, and not upon real estate ; and if the warrant thus issued shall be lost, it may be supplied by a new one, and the right and power of the secretary of the district to collect the taxes, is none the less clear or effective, than if the old warrant was still inexistence and produced; nor is such warrant authority to the person in office, at the time of its issue, alone, but it protects equally his successor.</p> <p>And in such a case, though no second warrant should issue, if the officer can show that one was issued, and establish its loss, ho may protect himself by proving its contents. '</p> <p>Where in an action of trespass, in which the defendants justified the taking and sale of the property, as school officers, in payment of a schoolhouse tax, it appeared that the tax was voted by the district in October, 1855, and duly advertised; that the records were lost in 1856 ; and that in June, 1857, the president of the district, one of the defendants, issued his warrant to the secretary, the other defendant, authorizing and commanding him to collect the taxes so levied and advertised, and also a list advertised in December, 1856, under which warrant the property was sold; and where the defendants offered the ■ said warrants in evidence, to which the plaintiff objected, for the reason that it purports to be issued in June, 1857, directing the collection of taxes levied in 1855,' the record of the levy having been lost before the issuing of the said warrant; Held, That the evidence was admissible.</p> <p>In an action of trespass against the officers of a school district, for the taking and sale of personal property, in payment of a school-house tax, the defendants may offer in evidence, a bond for the delivery of the property executed by the plaintiff.</p>

This suit is brought against William Butler, as “ one of the late firm of Butler & Hurlburt,” on three promissory-notes, made in New York, signed “ Butler & Hurlburt,” and jiayable to plaintiffs, in Galena.

Action on an open account, for the price of work and labor, and boarding, commenced by attachment. The petition, affidavit for attachment, and attachment bond, were filed on the 29th of November, 1857, and the writ of attachment was issued the same day. The original notice is dated the 30th, and the sheriff’s memorandum shows that he received it that day.

<p> Appeal from the Polk District Court. </p> <p>A cause was pending in the district court between these parties, involving the examination of long accounts. They filed a written agreement to submit the cause to arbitration. The arbitrators were to “ meet and determine said matters on the first of August, 1858, and to adjourn from day to day until concluded, and within five days thereafter, file the same in the district court of Polk county, or the clerk’s office thereof.” No order of court was made, directing the submission, nor did.the parties appear before a justice or other officer, and acknowledge the instrument so signed and entered into by them. The arbitrators met on the day named, heard a portion of the testimony, and adjourned to the next day. On that day, (the 18th of August), they agreed on their award, in favor of plaintiff, made it up and filed it on the 23d with the clerk. The plaintiff’s motion for judgment on the award was overruled. Defendant’s objections were sustained; the court, however, did not reject or set aside the award, but refused to enter judgment thereon. Plaintiff appeals.</p>

Suit upon a promissory note. The note is made payable to Hopkins, and others, by name, as school directors, and their successors in office, and the suit is brought in the name of the school district. On the trial, Hopkins was offered as a witness for the plaintiff, and permitted to testify.

This' action was commenced by attachment, the petition alleging, that the defendant lias property, goods, or money, or lands and tenements, or choses in- action, which he refuses to give in payment or security of the debt. On motion of the defendant, the court quashed the writ of attachment, from which order the plaintiff appeals. The other material facts, are sufficiently stated in the opinion of the court.

In Chancery. The petitioners allege that they were the actual occupants and owners, of a certain lot in the town of Council Bluffs, and as such were entitled to a deed from the county judge of Pottawatamie county, who had entered the town site of Council Bluffs city, pursuant to an act of Congress, and the laws of this state, for the use of the several owners and occupants ; and that respondents knew of their right, but that fraudulently, and with intent to injure and…

Suit upon an account, before a justice of tbe peace. Tbe plaintiff claimed of defendant, for tbe work and labor of bis son, five and a balf months, at ten dollars per month, and for one sheep-skin, at seventy-five cents.

This was an action to recover damages for failing to obey a subpoena. The defendant appeared, and moved the court to set aside the petition, for reasons set forth in the motion.

Risplevin, for blacksmith’s tools. The plaintiff had left the tools in the possession of one Kingsley, with an agreement, “ that if Kingsley should pay to plaintiff, the amount of a certain promissory note, ($60 00), then in the hands of J. T. Clark, the title of said tools was to become’ vested in Kingsley ; if not, the title was to remain in plaintiff.” The note was not paid according to agreement; and Kingsley, soon after, sold and delivered the tools to defendant.

A])])eal-fi‘om the Marshall District Court. The defendants gave their promissory note, on the first of September, 1856, payable to ~W. II. Hamilton, or bearer, in ten days after date, which was indorsed by the plaintiff, on the 13th of September, 1856.

This was a “ civil action in the district court,” commenced in September, 1858, to foreclose a mortgage, under chapter 118 of the Code. As required by the petition, defendants answered under oath. To this answer, there was a demurrer, which was sustained.

Tins was an action upon an attachment bond, sued out under the act of January 24, 1853, alleging that the writ was not only wrongfully sued out, but also wilfully wrong. The defendant pleaded a general denial, and certain special matters. The facts sufficiently appear in connection with the errors assigned. Yerdict and judgment for the plaintiff, and the defendant appeals.

Trespass. Trial and verdict for defendant. Motion for a new trial sustained, and defendant appeals. The other material facts sufficiently appear in the opinion.

The plaintiff sued tlie two defendants, jointly, in the county of Alamakee, in trespass, for killing a mule, the property of the plaintiff.

Suit upon a promissory note, commenced by attachment. As a ground for the attachment, the petition alleged, that the defendants were about, in some manner, to dispose of, or move their property out of the state, without leaving sufficient remaining for the payment of their debts. The defendants, “ for the purpose of appearing ■ to the attachment-branch of this case, and for no other purpose,” moved that the attachment be quashed, for the following reasons: 1.

Indictment for assault with intent to kill. On the trial, the prosecution called as witnesses, E. C. Hall, Abial Hall, and Maria Hall, who testified against the defendant. The wife of the defendant was then introduced on his part, whose testimony differed materially from theirs. She was the daughter of E, O. Hall, and the sister of the other witnesses.

Foreclosure. The mortgage was executed by Hobart and wife, to secure a note made by the firm of Hobart & Waterbury — said note dated prior to, but maturing after, the date of the mortgage.

<p> Appeal from the Des Moines District Court. </p> <p>This is an .action of right, to recover tlie possession of certain real estate, commenced in 1848, against Jeremiah Smith. Upon his death, his widow and heirs were made parties defendant. Judgment for the plaintiff, and the defendants appeal. The material facts and the errors assigned, are sufficiently stated in the opinion of the court.</p>

In April, 1857, the sheriff of Washington county, was requested by the M. & M. E. E. Co., to appoint six freeholders of said county, not interested in a like question, to assess the damages done to lands therein, by the location of said road over the same, in accordance with sections 4 and 5 of chapter 31 of the Laws of 1853.

The plaintiff sued for the possession of lot number eleven, in 'block number thirty-three, in the city of Keokuk, claiming title in fee. This lot is a part of the lands known as the “ Half Breed Tract.” The judgment was against the defendant, wlio appeals.

Tiie firm of Platt & Bailey, dealers in hogs, pork, &c.5 held a large account against T. Hedge & Co., to be referred to hereafter, which they assigned in writing to B. 0.

Afitjoeal from the DcsMoines District Court. James Platt, being an operator in pork and hogs, bad very considerable transactions with Thos. Hedge & Co., of Burlington, Iowa.

Tracy and Stephenson made their note, dated June 16th, 1857, due in three months, to Greer, or order, who, on the same day, assigned the same to plaintiff. This action is brought against the makers and indorsor.

Defendant was prosecuted before the mayor of ML Pleasant, for selling intoxicating liquors, on tbe 29th of July, 1858. In the. district court, be insisted, first, that the act of January 22,1858, (known as the prohibitory liquor law), was unconstitutional; and, second, that the sixth section of that act, (the one containing the general prohibition) was repealed by the act of January 28, 1857, (Session Laws of 1857, 231).

Larceny. Defendant was tried and convicted before a justice of the peace, in February, 1859. At the time of the rendition of the judgment, he gave notice of appeal to the district court. No notice of appeal was given to the attorney for the state. At the March term, 1859, of the district court, the district attorney moved to dismiss the appeal, for want of such notice. This motion was sustained, and from this order defendant appeals.

Indictment eor Lewdness. The indictment charges that the defendant, on the first day of August, 1858, at, &c., did lewdly and lasciviously associate and cohabit with one Elizabeth Matthews. A demurrer to the indictment, and a motion in arrest of judgment, were overruled, and judgment rendered against the defendant, from which he appeals.

Plaintiff seeks to recover her dower in certain lands, as the widow of William Pense. To the defendant’s answer, there was a demurrer, which was sustained, and from this order he appeals. The material facts appear in the opinion of the court.

The defendant was proceeding to foreclose a mortgage, by “ notice and sale,” when the plaintiffs transferred the entire proceedings to the district court, and obtained an injunction, as contemplated by section 2082 of the Code. At the next term, this injunction was, on motion of defendant, dissolved, and from this order plaintiffs appeal.

Action on an official bond, in which judgment was rendered against the principal and his sureties. A notice of appeal was served on the county judge, by one of the appellants, who makes affidavit to the return. The appellee moved to dismiss the appeal, for the following reasons: 1. No notice of appeal was ever served upon the appellee, or upon the clerk of the district court; 2. The notice of appeal was served by R. S. ITanks, one of the defendants.

Indictment for larceny, in stealing a horse. While the jury were being impanneled, the defendant propounded to one of the jurors, the folio wing interrogatory : Do you belong to any association, or organized company, in this county, for the prosecution of persons generally, arrested for horse stealing ? which being objected to, the objection was sustained by the court.

<p> Appeal from the Lee District Court. </p> <p>The defendant was indicted, tried, and convicted for an assault, with intent to inflict great bodily injury. The testimony tended to show, that defendant was in a store-room, and while there, some words passed between him and Owen, the person assaulted; that defendant slid off the counter, with a bowie knife in his right hand, and threatened Owen with violence, when he was caught and held for some time; that Owen rQn, and was soon followed by the prisoner, with said knife in his hand; that he was caught while thus in pursuit; that while in the house, he was not within ten feet, and -when out of the house, not within fifty feet of said Owen ; that he did not attempt to throw the knife, but had to be held, in order to prevent his following up more closely said Owen; and that he was very angry.</p> <p>The court refused the following instruction, asked by the prisoner: If the defendant wras not, at any time, within ten feet of William Owen, and could not have struck him with the knife at that distance, if lie had attempted it, he is not guilty as charged.</p> <p>At the request of the state, the court gave the following instructions. Í. If the defendant had a bowie-knife in his hand, of sufficient capacity to inflict a great bodily injury upon Owen, and was only prevented from inflicting a great bodily injury upon him by others, then he is guilty. 2. If he had the intent and means to inflict the offense charged, and was only prevented from inflicting the same by others, the distance of defendant from Owen is not material. 3. If the jury should be of opinion, from the evidence, that defendant had the means and ability to inflict a great bodily injury on Owen, and find the defendant intended and endeavored to inflict such injury, and would have done so, if he had not been arrested and prevented by the interference of others, it will be their duty to find against defendant. Motion for new trial, and in arrest, overruled, and the defendant appeals.</p>

Plaintiffs sue for materials furnished in the erection of a certain house, and ask a mechanic’s lien. As to the amount due, there is no controversy. The questions in the case, arise upon the instructions given and refused as to the right of the plaintiffs to the lien, for which, see the opinion.

At the January term, 1859, of the Des Moines district conrt, the defendant was indicted for stealing a horse, and ñled a plea of not guilty.

Ward made his note to Swigart, or bearer. Swigart assigned the note to plaintiffs, who brought their action before a justice of the peace, against the maker and indorser. Ward appeared before the justice, and moved to dismiss the action, for the reason that'he resided in a different township from that in which the action was brought. This motion was overruled, and he prosecuted his writ of error to the district court.

<p> Appeal from the Muscatine District Court. </p> <p>Tiie plaintiffs commenced an action against Pa:ro & Nonrse, and caused certain lands to be attached. Edes appeared, alleged that he was the owner of said -real estate, and asked to be made a party defendant, so far as to protect his interest in said property. This motion, against plaintiff ’s objection, was sustained, and the said Edes made a party defendant. Judgment was rendered in favor of plaintiff for the amount claimed. It was also found that the legal title to the land attached was in Edes. From the order sustaining the motion of Edes, plaintiff appeals.</p>

<p> Appeal from the Johnson District Court. </p> <p>An indictment for resisting an officer in serving, and attempting to execute, legal process. The body of the indictment reads as follows:</p> <p>“ That heretofore, to-wit: on the 12th day of May, A. I). 1858, a certain judicial warrant of arrest, directed to any sheriff, constable, or marshal of the state, was duly awarded, and issued by George W. MoOleary, a magisfratq of said county of Johnson, to-wit: county judge of said county, state aforesaid, which said judicial warrant of arrest was duly delivered to Jacob Hugns, an officer of the state of Iowa aforesaid, to-wit: deputy sheriff of the county, and state aforesaid, and was of the purport and effect following, that is to say :</p> <p>The State of Iowa, ] gg County of Johnson, f</p> <p>The state of Iowa, to any sheriff, constable or marshal of the state:</p> <p>Information upon oath, having been this day laid before me, by Levi Robinson, that the crime of murder has been committed, and accusing Thomas Casey, Michael Freeman, Frederick M. Irish, Henry Gray, Peter Con boy, Alfred Curtis, James Kennedy, Philip Clark, Joseph Stutsman, Charles Dow, Samuel Shelliday, John O’Neil, William Canot, Charles Brown,--Mitchell, (whose given name is unknown, but who is a'partner in business with Alfred Curtis), and. Daniel Marshall thereof, you are therefore commanded forthwith to arrest the above named Thomas Casey, Michael Ereeman, Frederick M. Irish, Henry Gray, Peter Oonboy, Alfred Curtis, James Kennedy, Philip Clark, Joseph Stutsman, Charles Dow, Samuel Shelliday, John O’Neil, "William Canot, Charles Drown,-Mitchell, (whose given name is unknown, but who is a partner in business with Alfred Curtis), Daniel Marshall, and bring them before me, at the office of the county judge of Johnson county, in Iowa City, on the 13th day of May, A. D. 1858, at nine o’clock, a. m., or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county.</p> <p>Dated at Iowa City, this 12th day of May, A. D. 1858.</p> <p>G. W. Me Cleary,</p> <p>County Judge of Johnson county, Iowa.</p> <p>And the grand jury aforesaid do further present, that the said judicial warrant of arrest, being duly awarded, issued and delivered, as aforesaid, afterwards, to-wit: on the 12th day of May, A. D. 1858, at Iowa City township, county aforesaid, the said Jacob ITugus, then and there being an officer of this said state, to-wit: deputy sheriff of the county aforesaid, on attempting to execute and servo the judicial warrant aforesaid, in manner and form as he was therein commanded, in accordance with, and pursuant to the form of the statute in such case made and provided, summoned and commanded one William E. Small, one Henry D. Miller, one Andrew J. Adams, and divers other persons, whose names are to the jurors unknown, male inhabitants of the county aforesaid, to aid and assist him the said Jacob Hugus, then and there being an officer of this state as aforesaid, in the arrest of said Michael Freeman, in said warrant of arrest mentioned; and that said Michael Freeman then and there, to-wit: on the 12th day of October, A. D. 1858, at the county of Johnson, state aforesaid, knowingly and wilfully, with force and arms, did resist and oppose the said Jacob Hngns, an officer of the said state, as aforesaid, to-wit: a deputy sheriff' of Johnson county, in said state, and his assistants, so summoned and commanded, as aforesaid, to-wit: William E. Small, Henry B. Miller, Andrew J. Adams, and divers other persons to the jurors unknown, acting under the authority of law, as aforesaid, ■ in the serving and attempting to execute, said warrant of arrest; and so the jurors aforesaid, upon their oaths aforesaid, do say, that said Michael Freeman, on said 12th day of May, A. P). 1858, at Iowa"1 City township, county and state aforesaid, with force and arms, knowingly and wilfully, in manner and form aforesaid, did resist and oppose an officer of this state, as aforesaid, and his assistants, William E. Small, Henry B. Miller, Andrew J. Adams, and others, whose names are to the jurors unknown, being persons authorized by law, as aforesaid, in the serving and attempting to execute a legal process, to-wit: the warrant of arrest, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Iowa.</p> <p>To this indictment, the defendant demurred, assigning for cause thereof, among others, the following reasons:</p> <p>1. Said indictment nowhere avers that the said officer, in attempting to execute the writ, informed the defendant, that he acted under the authority of a warrant.</p> <p>2. The said indictment nowhere avers that the defendant resisted the officer, at the time of the alleged attempt to. execute the warrant.</p> <p>3. The said indictment is repugnant, in this, it avers that the said officers acted by virtue of a “judicial warrant,” and sets out simply a warrant of arrest, issued by a magistrate.</p> <p>4. The said indictment is uncertain as to the manner in which the defendant resisted the officer.</p> <p>The demurrer was overruled, and the defendant pleaded not guilty. On the trial, the state offered in evidence the warrant described in the indictment, with the return of the officer indorsed thereon, to which the defendant objected, but the same was overruled, and the evidence permitted to go to the jury. The jury returned a verdict of guilty, and thereupon a motion was filed to set aside the verdict, and grant a new trial, which being overruled,-judgment was entered upon the verdict, from which the defendant appeals.</p>

<p> Appeal from the Dubuque District Court. </p> <p>The plaintiffs brought a suit against one Affix, on the 4th of April, 1857, for the enforcement of a mechanic’s lien, for work and labor, &c., prior to November 19, 1856, and recovered judgment July 11, 1857. The defendants brought suit against Affix, April 24, 1857, to enforce a mechanic’s lien on the same property, upon notes given in settlement, January 20, 1857, and recovered judgment July 3, 1857.</p> <p>An execution issued on the judgment of defendants, July 6th, and on that of plaintiffs, July 18, 1857, diiecting, in each instance, the sale of the property covered by the liens. The sheriff advertised the property for sale, under each execution, on the same day. It was first offered under the execution of defendants, and struck off to them for $375, both parties bidding on it. It was then offered under the execution of plaintiffs, and both parties again bid, and the property was struck off again to defendants, for $275. The amount of this last bid, though requested, they refused to pay, and this action is brought to collect the same.</p> <p>Upon the above facts, the court below held that defendants were not liable, and rendered judgment against plaintiffs for costs, from which they appeal.</p>

Plaintiff sues for the value of a horse sold under execution, issued by the defendant, as a justice of the peace. The issue being made up, and trial had, the jury returned a verdict as follows: “ We, the jury, find the value of the horse to be one hundred and fifty dollars,” Judgment was thereupon rendered in favor of plaintiff for that amount, with costs.

This cause was submitted upon an agreed statement of facts, from which it appears, that on the léth of November, 1857, T. J. Kemper… Held: that the inventory and appraisement specified in section three of the act of 1857, must be made by the assignee himself; that the filing of the inventory and valuation was a precedent act to the filing of the bond; that the filing of the inventory and valuation, and giving bond, were plainly required as one entire act, necessary to…

Tins was an indictment for taking and enticing away an unmarried female, under tbe age of fifteen years, from and without the consent of the person having the legal charge of her person, for the purpose of prostitution. On the trial, the defendant offered certain testimony, which was objected to and rejected. He also asked certain instructions, which were refused, and objected to those asked and given at the request of the state.

This action was commenced by Coates, Dykensforth & Co., against the defendants, upon a promissory note, dated the 4th of December, 1855, and payable in one year and twenty days, to S. II. Gilbert, by whom it was indorsed. The defendants answered, pleading a failure of consideration, to which there was a replication.

■ This is an action to recover damages. The petition alleges that the defendant, on or about the first day of' July, 1856, bargained for, and bought of‘ the plaintiff, and that he sold to him, a parcel of goods, at the price of $206 13, payable in six months, secured by note, with good indorser,’ and to be delivered to the defendant in the city of Keokuk,' Iowa — the said plaintiff being a merchant, doing business in the city of New York; that afterwards, the plaintiff whs…

the Dubuque District Guurt. This bill in equity was filed by Joseph and Ann Wilson, children and heirs of Abraham Wilson, deceased, and minors, suing by W. G. Stewart, and Jesse P. Farley, their guardians; and William G. Stewart, with Caroline, his wife, who was the widow of the said Abraham Wilson, to enforce the conveyance of a certain interest in mineral lot number 348, in the county of Dubuque, &c. Prior to the year 1S46, Abraham Wilson died possessed of a “ claim,”…

<p> Appeal from the Johnson District Court. </p> <p>Judgment against defendants by default, from which they appeal.</p>

Action on two promissory notes. The suit was commenced in .December, 1857, returnable to the February term, 1858, and attachment was sued out under the act of 1853. The cause appears to have been continued at the February term, and at the May term, the defendant was called and a judgment of default entered, and the cause continued to the September term, for final judgment, under the act of 22d of March, 1858.

The indictment contained eight counts, the first of which, after the formal part, read, as follows: That Frederick ML Irish, Michael Freeman, ITenry Gray, Peter Conboy, Philip Clark, Alfred Curtis,. Held: and the acts charged, performed in open daylight, without remonstrance or opposition from the public, furnish proper evidence for the consideration of the jury in determining upon their true motives and designs.

In Equity. Complainant seeks to recover upon a lost note, which lie alleges was made to one Dobney, and indorsed. The giving of the note is admitted, but its transfer and loss are denied — the answer being under oath. The complainant recovered, and the respondents appeal. I. There is no proof that payee transferred the note to plaintiff, by indorsement and delivery. The title to negotiable paper, payable to order, can be transferred only by indorsement and delivery.

<p>Where in an action of trespass, for taking certain goods, wares and merchandise, the defendants answered, denying the trespass, and the plaintiff offered evidence to show, that the goods were taken by the sheriff, under an attachment issued in a suit wherein B. B. were plaintiffs, and M. B. were defendants, which writ, with the return of the officer thereon, was also offered in evidence; and that the defendants executed to the sheriff a bond of indemnity to induce him to attach the goods ; and where the defendants then offered in evidence, the original papers in the suit of B. ,B. v. M. B., including the notice, petition, affidavit for attachment, and notes and accounts sued on, in which suit a judgment by default had been claimed, to which the plaintiff objected, but the objection was overruled, and the evidence admitted; and where the plaintiff asked the court, to instruct the jury as follows : “ That the notes accounts, and papers, in the suit of B. B. v. SI. B., not being proved are not evidence in this suit, of any indebtedness between the parties thereto ;” which instruction the court refused to give; Held, 1. That the papers offered in evidence by the defendants, were prima facie evidence of an indebtedness existing from il. B. to B. B., and so far as that fact was relevant, were proper to be given in evidence; 2. That the instruction asked was irrelevant, and properly refused.</p>

<p>In an action against two persons.alleged to be partners, on a contract signed in the partnership name, service upon one is a service upon the partnership, and sufficient as to each member of the firm.</p>

A case submitted bt agreement. The agreement, properly signed and sworn to, is as follows: Whereas, the treasurer of Louisa county, and one Mark Davison, are parties to a question in difference in reference to the collection of the school tax, levied under, and by virtue of the act of the general assembly, entitled “An act for the public instruction of the state of Iowa,” approved March 12th, 1858, which might be the subject of a civil action ; and whereas, both parties, in…

In an action commenced before a justice of the peace, upon an account for work and labor done, plaintiff recovered judgment in the sum of thirty-nine dollars and fifty cents, and from this judgment defendant appealed to the district court. In that court, plaintiff recovered judgment for twenty-one dollars and fifty cents, and the costs before the justice, and he was required to pay the costs made subsequent to the appeal. Plaintiff appeals.

The docket fee, on the appeal from the justice, not having been paid, the plaintiff moved the court to affirm the judgment ; and the court being satisfied in the premises, affirmed the judgment, in accordance with a rule of court. After-wards, on the application of the defendant, sustained by affidavit, the court set aside the judgment of affirmance, the defendant paid the docket fee, and the cause was moved to be continued until the next term of court.

Cherry, as guardian of Samuel Anderson, claimed one hundred dollars, “ as a balance due on a note, which was given up by plaintiff to defendant, through mistake, upon agreement that if the mistake existed, it should be rectified.” On the trial in the district court, the plaintiff, Cherry, was offered, as a general witness, to prove the cause of action. Defendant objected, the objection was sustained, and judgment being rendered against plaintiff, he appeals.

.. The indictment charges that the defendant did, on, &c., at, &c., keep a grocery building,, situated on lot, (describing the lot), resorted to by divers persons, for the purpose of gambling, contrary, &c. To this indictment there was a demurrer, upon the ground that it did not show a continued keeping for the purpose alleged.

<p>An instruction on the trial of an indictment for murder, which omits the element of premeditation, in defining the crime of murder of the first degree, is erroneous.</p> <p>Touts v. The State, 4 G. Greene, 500, commented on and overruled.</p> <p>Where on the trial of an indictment for murder, the court charged the jurjas follows : “ If you are satisfied from the circumstances detailed by the testimony, that the murder was willful, deliberate, and committed with malice aforethought, the verdict should be for murder in the first degree ;" and where the bill of exceptions recited that the other instructions pointed out the difference between murder of the first and second degree, and manslaughter, but the bill did not show whatthose instructions were ; Held, That it did not appear from the record, that the defendant was not prejudiced, by the omission of the word “premeditated,” in the said instruction.</p> <p>Where on the trial of an indictment for murder, the counsel for the prisoner claimed and insisted that the defendant was not guilty, or if so, that the offense was murder of the first degree, and thereupon the court - without objection, charged the jury as follows: “The form of your verdict will be as follows, if you find the defendant guilty : we, the jury, find the defendant guilty of murder in the first degree; or if you find the defendant not guilty, you will say, we find the defendant not guilty ; Held, 1. That the defendant could not complain of the issue his counsel had presented. 2. That the instruction was not erroneous under the circumstances.</p> <p>Where on the trial of an indictment for murder, the court, in relation to the dying declarations of the deceased, instructed the jury as follows: “ If you receive them as true, it will be your duty to find the defendant guilty of murder in the first degree, because they show that it was done, either in the perpetration of, or attempt to perpetrate a, robbery and where the court, in response to an interrogatory of the jury, further held : “ That if you should believe that the deceased was mistaken as to the object the defendanthad in killing, (/. e., for his money), andthat all the other declarations were true, and are satisfied, from the circumstances detailed by the testimony, that the murder was wilful, deliberate, and committed with malice aforethought, the verdict should be for murder in the first degree. You can find a verdict of guilty of murder in the second degree, if the murder was wilful, and with malice aforethought, though not deliberate and premeditated, provided you are not satisfied that it was committed in the perpetration, or attempt to perpetrate a robbery. In inquiring into what was said by the deceased, on the subject of defendant’s object in inflicting the wound, you may inquire whether he meant to say, that arobbery had been committed, or whether he referred to the intention of defendant in making the assaultHeld, That taking the instructions together, the first was not objectionable, or at least, not so much so as to alone justify a reversal of the cause.</p>

The defendant was indicted for unlawfully having in his possession, at the same time, twenty pieces of false money and coin, counterfeited in the similitude of silver coin, current by law and usage in the state of Iowa.

Afjpeal from the Johnson District Court. Indictment for passing a counterfeit bank bill.

Indictment for Larceny. The property alleged to have been stolen is described in the indictment as follows : “One watch, of the value of live dollars; one silver coin, of the value of twenty cents; one live dollar gold piece, of coinage of' the United States, of the value of five dollars; one promissory note, for the payment of money, commonly called a bank note, purporting to be issued by the St. Croix Yalley Bank, for the payment of ten dollars, being still’ due and…

The plaintiffs were carrying on the daguerrean business at the city of Dubuque, on the premises known as the “ Pickerell Daguerrean Room.” There was connected with the rooms, a valuable sky-light, and a balcony running along one side, by which an entrance was gained to the rooms; and there were partitions in said rooms, and other fixtures for the convenience of trade, erected by F. M. Pickerell, one of the plaintiffs, who alone held the lease-hold interest of the premises.

A bill to enjoin proceedings in an action of right, and to quiet the title to the real estate. Decree for the complainant, and respondent appeals. The questions decided sufficiently appear in the opinion of the court.

The petition in this case alleges, that on the 7th day of April, 1856, the defendant, Fredericks, was duly elected school fund commissioner, for the county of Tama, for the term of two years; and that on the 21st of said April, he, with the other defendants, his sureties, made their writing obligatory, conditioned for the faithful discharge of the duties devolving upon said Fredericks as said fund commissioner. The condition of the bond is specifically set out.