Volume 9 — Iowa Reports

Probate oe a Will. On the 20th day of November, 1850, James McCarthy made a will, by which, after giving and bequeathing to Ann Clark, Rebecca Gibson, and Sarah Conlain, (his sisters,) each the sum of one hundred dollars, he made the following disposition of his real estate: “ I give and bequeath, and by these presents do give and bequeath to the Right Reverend Catholic Bishop of Dubuque, State of Iowa, and to his successors forever, all the real estate that now belongs to…

The petitioner was arrested by virtue of a warrant issued by the police magistrate of the city of Davenport, for a violation of an ordinance of said city. The office of police magistrate was created by an act of the General Assembly, enti- . tied “ an act entitled an act to amend an act to incorporate the city of Davenport, and amend the several acts amendatory thereto.” Approved Jan. 23, 1857.

This was a proceeding to foreclose a mortgage. Defendants demurred to the petition. The demurrer was overruled and from this order they appeal. The other facts appear in the opinion of the Court.

The respondents petitioned the County Court of Warren County, for a change in a part of the State road leading from Inclianola to Fort Des Moines, and their petition was granted, conditionally, as will be shown hereafter. Spray & Barnes petitioned for damages in consequence of the change; claiming one thousand dollars therefor.

This action was brought to recover the amount of a certain draft, endorsed to plaintiffs, and accepted by defendants. There Avas an answer in denial, and setting up new matter, and issue thereon, and the records show a regular trial of the cause, both parties being present. After this, defendants moved to set aside this judgment. This motion was based upon the affidavits of one of the defendants and of one of their attorneys.

The defendant appeared by counsel, but filed no answer. The plaintiff withdrew his suit, and defendant asked for judgment for costs, including ten dollars, under the 79th rule of the court adopted by the judge thereof, and approved by the Supreme Court. This motion as to the ten dollars, was overruled, and defendant appeals.

The appeal of the plaintiff, from what he claims was the judgment of a justice of the peace, was, on defendant’s motion, dismissed in the District Court. The only question made in the brief of counsel is, whether the appeal was properly dismissed. The matei'ial facts sufficiently appear from the opinion of the Court.

The writ was directed to the coroner. Defendant moved to dismiss the action, for the reason that “the papers do not show any authority for the coroner to act in the premises.” This motion was sustained and the suit dismissed. Plaintiff appeals.

This is an action wherein the plaintiff claimed the sum of one hundred dollars, as justly due him from defendant, by reason of his wrongfully taking from the possession of the plaintiff, and converting to his own use, a quantity of corn, standing and growing in the field, of the property of plaintiff, and to his damage, one hundred dollars.

This is an. indictment under sections 2634 and 2635 of the Code, for counterfeiting silver coin, current by law within the State, &c., containing four counts. The jury returned a verdict of guilty upon one count, upon which judgment was- rendered against him, and ^’om which he appeals. The material faets are fully stated in the opinion of the Court.

This was an action against the defendant, for not delivering to plaintiíf, a letter containing one hundred dollars. Judgment was rendered for the plaintiff. The evidence offered on the trial, is not set out in the record, nor does it contain a statement of the facts found, with the conclusions of the court founded thereon, under section 1793 of the Code.

<p> Apyeal from Polk District Court. </p> <p>This is a proceeding to enforce the specific performance of a contract for the conveyance of real estate, and was before this court on a former occasion. See 3 Iowa, 345. Since that time, the respondent has amended his answer, and now avers that at the time when the contract was made, the lots which were to be conveyed, constituted his homestead; and that he could not convey them, as his wife refused to join in the deed. The bill contains the usual prayer for a specific performance, and for general relief. A decree was rendered dismissing the bill of complainant, with costs, from which he appeals. The other material facts, are stated in the opinion of the court.</p>

Jippeal from Dubuque District Court. Prior to 1840, and up to tbe time of commencing tbis action, the respondent, Alex. Held: in part, in trust for the benefit of the persons named in the will, and in fact, in trust for Alexander, in accordance'with the understanding between him and James, that the lands purchased and thus conveyed, other than the Perry Property, were in fact purchased for Alexander and with his means.

On tbe 2nd of November, 1857, Henry Haupt sued out of tbe District Court of Scott county, an attachment against tbe property of George Beatty, by virtue of which the property in controversy was levied upon. The plaintiff McGav-ran filed his petition claiming the property’levied upon, under a mortgage executed by Beatty to him, on the 25th of March preceding, of which the defendant Haupt had notice at that time.

This was an action to recover damages for burning a bouse, the property of the plaintiff. The answer denied all the material allegations of the petition, and alleged that the house was kept and used as a house of ill fame, by the tenants of the plaintiff, and was a nuisance.

This was an action of trover, by which the plaintiff seeks to recover of the defendant, the value of certain goods taken by him, as deputy sheriff of Dubuque county, by virtue of a writ of attachment issued in an action by one Osmond Bailey against W. D. Gatchell, and taken as the goods of Gatchell.

<p> Appeal from Clayton District Court. </p>

<p> Appeal from Linn District Court. </p> <p>This was an action on an account. The material facts are presented in the opinion of the court.</p> <p>relied on 5 Peters 580, 561; 5 Mason 177; 2 Peters 187, 197; 5 Cowen 689; 11 Wend. 87.</p> <p>cited 1 Greenl. Ev. sec’s 496-428, 436-438.</p>

<p> Appeal from the Lee District Court. </p>

A plea to the jurisdiction of the city court was overruled, and judgment being thereupon rendered for plaintiff, defendant appeals.

■ Appeal from Polk District Court. The plaintiffs sued the defendant before a justice of the peace, upon an account containing two items of demand. One was for a yoke of oxen and a yoke, sold and delivered defendant — $80, and interest, $11. The other item was for costs incurred in a suit against B. Post, upon a note “ traded ” to plaintiffs by defendant, and by him represented as unpaid, when in fact it had been paid and discharged, $7,60.

This was an action for the recovery of real estate. The defence relied upon, was a contract with the school fund commissioner of Winnesheik county, for the purchase of the land, of the date of June 10,1854, and possession of the land by defendant, and those under whom he claimed, from the date of the contract. The plaintiff claimed by virtue of a patent from the State, of the date of May 1, 1856.

This was a proceeding to foreclose a mortgage. To the petition there was a demurrer which was sustained, and from this ruling plaintiff appeals. The material facts appear from the opinion of the court. cited Sands v. Wood, 1 Iowa 266; 2 Story’s Eq. Jur. sec’s 1322 and 1323; Ottawa Plank Moad Co. v. Murray, 15 HI. 336; The West Branch Dank v. Chester, 11 Penn. State R. 288; 2 Hilliard Mort. 108.

Bill for a discovery, and to foreclose a mortgage. The petition states that Tbomas W. Hopkins, in bis life time, as the agent of the plaintiff, loaned to defendant Collins, the sum of $5240, of the money of the plaintiff, taking a note therefor, payable to said Hopkins in his own name; and that the defendants, Collins and wife, to secure the payment of the note, executed and delivered to Hopkins, a mortgage upon certain real estate, with a power of sale, in case of…

<p>1. Nora payable in propekty : depense. In an action on a noto payable in lumber, an allegation that the maker was ready, merely, at the time and place named in the note, to make payment, is no defense. He must aver that he offered, or set apart and designated the property, or what is equiyelant thereto.</p>

<p>1. Trespass. Held, that a sheriff ivho seizes property beyond the limits of his own county, under a writ of attachment issued by the District Court thereof, is a wrong doer, and is liable' to the owner or possessor in an action of trespass.</p> <p>2. Same: evidence. As title draws the possession, the defendant in such action, may show that at the time the alleged trespass was committed, the title of the property in controversy was not in the plaintiff. ' '</p> <p>3. Same. The defendant may also show that .the plaintiff held such property as the servant of the owner.</p>

<p> Appeal from Scott District Court. </p> <p>The plaintiffs sued the defendant for money had and received, to their use. Their petition also sets out that they, doing business in Chicago, Illinois, “ in buying and selling produce,” had a branch of the same in G-eneseo, in the same State, where the defendant was their agent or clerk, and conducted the business; that they placed in his hands money, salt, lumber, &c., with which he purchased produce and sent to them; and that in July, 1855, at the close of' this arrangement, he was in arrear, and indebted to them in the sum of $2,220.22. They sued out a writ of attachment, upon the ground that the defendant was a non-resident of the State. Personal service also was made. The sheriff returned an attachment of one horse, a two horse wagon, harness, two guns, buffalo robe, trunk and valise, and $1089.00 in money.</p> <p>The defendant filed a motion to discharge the property attached, which was. overruled. To the action, he answered: First, By a general denial. Second, That the property attached was illegally taken, and was not subject to attachment. Third, That the parties entered into a new agreement by which the plaintiffs gave time to the defendant. The plaintiffs replied, and on demurrer, amended. The issues ultimately were upon the plea of non assumpsit, and the reply of fraud in obtaining the contract of extention of time. Judgment for the plaintiffs, and the defendant appeals. The other material facts and the errors assigned, sufficiently appear from the opinion of the court.</p> <p>I. The court erred in refusing- to discharge the property attached on the motion of the defendant:</p> <p>1. Because the sheriff and one of the plaintiffs followed the defendant, a non-resident, from Scott, into Powesheik county, where they found and took possession of the property, and brought it back to Scott county under the pretense that they seised it under, and by virtue of a writ of attachment.</p> <p>2. That the search made for the money, and its seizure was under the pretense of a criminal examination. Isley v. Nichols 12 Pick. 270-276, and the cases there cited.</p> <p>II. There is no distinction between the discharge on motion of a person unlawfully arrested, and the discharge of property from an unlawful levy of an attachment, Green v. Tompkins, 12 Barb. 265; Buddiclc v. Smith, 12 Scam. 451; 4 Bibb 312; 1 Cranch 117; Crane v. Freese, 1 Harrison 305; 2 Speer, 35; Hewett v. Stevens, 3 Iredell 365; Jilston v. Clay, 2 Hay. 171; Foss v. Clarke, 1 Hall. 355.</p> <p>ni. The plaintiff, while he seeks to hold the property attached as the property of the defendant, cannot object to his motion to discharge it, on the ground that he has no interest in it. ...</p> <p>IV. This is an action against an agent for not accounting. There must be a demand for an accounting and payment of the balance, before an action will lie. 1 Chit. PI. 180; Coll. Part, section 114 and note, and 119 and note.</p> <p>I. This motion, in effect, denies the validity of the sheriff’s return, and this cannot be done; Hamilton v. Matlack, 5 Black. 421; Burger v. Beckett, 6 lb. 62 ; B,emington v. Henry, lb. 63; Botts v. Burnell, 9 Mass. 98 ; Slayton v. Chester, 4 lb. 478; Winchell v.- Stiles, 15 lb. 232.</p> <p>II. The defendant on his own showing has no interest in the property attached, and therefore he had no more right to ask for its discharge than any other third person. Code 1851, sections 1676, 1678, 1684, 1685 and 1686.</p> <p>in. Our laws make no provision for, and do not contemplate a proceeding of this character in the main suit, and as a part of it. Code of' 1851, section 1995.</p> <p>IY. Property in the custody of tbe law can be attached. Code 1851, section 1862.</p> <p>Y. That to deprive the plaintiffs of the right to sue, there must be an express agreement for an extension of the time of payment, which must be upon a sufficient consideration, and must amount in law to an estoppel on the creditor, sufficient to prevent him from beginning a suit before the expiration of the "extended time, and the time of extension must be definitely and precisely fixed. 1 Par. on Cont. 512 noto y and cases cited; 513, note a and b; Oxford Bank v. Lewis, 8 Pick. 457; Low v. Tuttle, 4 Mass. 414; Bank v. Willard, 17 Pick. 153; Gahn v. Niemceivic 11, Wend 312; Fullam v. Valentine, 11 Pick. 159.</p> <p>YI. An agreement or covenant never to sue, is a release. On an agreement or covenant not to sue for a limited time, the debtor’s remedy is by suit on the agreement or covenant, ■and it does not suspend the creditor’s action. Winans v. Huston, 6 Wend 471. Fullam v. Valentine, above' cited; Perkins v. Gilman, 8 Pick. 230 ; Gibson v. Gibson, 15 Mass. 112.</p> <p>YII. In charging the-jury the court need not use the language of the attorneys. It may put aside the instructions asked, and charge in its own language, and the party complaining can asign for error only incorrect ruling of the law; Busch v. Bavenport, 6 Iowa, 443.</p> <p>YIII. If a demand before the commencement of an action for account was necessary, it would not be so in this case; for the reason that the defendant had absconded. Bailey on Bills 63; 4 S & R. 480; Pittman v. Sidlivan, 4 Mass. 45 ; 3 Ohio 317.</p>

<p> Appeal from Scott District Court. </p> <p>The plaintiff moved the court below for a rule upon the sheriff, to pay over to him certain money in his hands. The facts upon which the motion was based, were admitted to be as follows:</p> <p>On the 1st of April, 1857, Grant leased to Butts & Thompson, a store room in Davenport, for the term of two years, the rent to be paid monthly on the last day of each month. Butts & Thompson were merchant tailors, and the room was leased to them, and they used it to carry on their business as such merchants. This business was continued by them in the store, until the 16th of January, 1858, when Whitwell, Marsh & Talbott sued the lessees, and attached the stock of goods in the store. At that time, the rent was due for December, 1857. On March 19th, 1858, and after the goods had been removed by the sheriff, from the store, Grant commenced his action against Butts & Thompson, to recover the rent due for December, January and February, and sued out an attachment against the property which had been upon the premises during the term of tho lease. This attachment was levied upon the same goods, which wére afterward sold by the sheriff, in accordance with section 1881 of the Code. This property was not used upon the premises for any other purpose than “ the keeping it thereon for the purpose of sale to customers.” Other portions of the stock in .trade had been actually sold to customers, from time to time, with the knowledge of Grant, up to the 16th of January, 185'8. Grant recovered judgment for the amount of rent claimed. The court ordered the sheriff to pay the landlord’s judgment from the money in his hands, and from this order, the creditors appeal.</p> <p>cited Broom’s Legal Maxims, 450; Bullard v. Goffe, 20 Pick. 252; 1 Kept Com. 462; United States v. Msher, 2 Cranch, 358; 1 Curtis, 496; Woods v. Lowry, 17 Wend. 492; Griswold v. Sheldon, 4 Comst. 580; Edgell v. Hart, 5 Seld. 213; Ford v. Williams, 3 Kernan, 577; Robbins v. Parker, 3 Mete. 117; Collins v. Myers, 16 Ohio, 547.</p> <p>cited Taylor’s Landlord & Tenant, sec. 556; 3 Kent, 485.</p>

Bill to quiet title to real estate. — The complainant alleges that he is the owner in fee of a certain tract of land ; that he purchased it at a sale made by the trustee, under a deed of trust executed by defendant Langer to complainant, to secure him in the payment of a certain sum of money; that by the purchase he became the owner of the premises in fee simple as against said Langer, and all other persons, and entitled to the immediate possession thereof; that there are…

The plaintiff was an infant and sole heir of Herman Grap-engether, who died while on his way to Davenport, Iowa, in 1854. His mother, Eredrika, received the money and property which belonged to her husband, and on arriving at Davenport, was duly appointed and qualified as the adminis-tratrix of his estate. A portion of the money received by her as such administratrix was loaned. In July in the same year sho purchased lot eighteen, and the east half of lot seventeen,.

This action was instituted by the board of trustees of the High School of Clayton county, to recover of the county of Clayton the sum of three thousand dollars, the amount of taxes levied by the county Judge of said county, under section sixty of “ an act for the public instruction of the State of Iowa/’ approved March 12, 1858, for high school purposes.

' Action to recover the amount of two certificates of deposit. The petition contains allegations of cause for an attachment. An attachment bond was filed with the petition, and a writ was immediately issued. The defendants, by their answer, set up damages sustained by reason of the wrongful suing out of the writ, as an offset to plaintiff’s claim. A demurrer to the answer was sustained, and judgment rendered for plaintiff. Defendants appeal.

Bill in equity for an account. The complainant’s bill was filed in September, 1856. In December following, the respondent filed a demurrer; and on the 2d of June, 1857, he filed his answer to the bill, subject to the demurrer. On the 14th of October, 1858, the demurrer to the bill was overruled, and the respondent had leave to amend his answer; which amendment he was ruled to file in thirty days from the adjournment of the term.

This was an action on account for labor alleged to have been performed by plaintiff for the defendant.

The defendant was indicted for manslaughter, in killing one Brewer. When the case was called for trial, a jury was placed in the box, and defendant’s counsel addressed to a juror the following question: “ Hare you formed or expressed an opinion as to the defendant’s guilt ?” The juror answered, that he had not. Tho defendant’s counsel then asked, “ Whether ho had formed or expressed an opinion as to defendant’s killing Brewer ?” To this the juror answered, that he had.

<p> Appeal from Greene District Court. </p>

On the 28th or November, 1855, the plaintiff filed hi^ petition against the defendant, in an action of trespass, for taking and carrying away certain goods, wares and merchan- ' dize, the property of the plaintiff, on the 28 th of August, 1855, and converting them to his own use, to the damage of the plaintiff in the sum of two thousand dollars.

This was a judgment by confession under chapter 107 of the.Code, made on the 15th of April, 1858, for the sum of $1,608,75, upon a note of the following purport: “Six months after date, for value received, we jointly and severally promise to pay to Joshua Troxel or order, eleven hundred and twenty-five dollars; and unless paid at maturity, as a penalty for such default, we, and each of us, agree to pay thereafter to said Troxel, interest on the above amount, at the rate of…

Plaintiff sued for the value of a horse, injured by falling through a bridge, a part of the highway, as it is claimed, in said district. Trial and verdict for plaintiff, and defendant appeals.

<p> Appeal from, Lee District Court. </p> <p>An information was filed before a justice of tbe peace, against the defendant, for the sale of intoxicating liquors, on 22d of December, 1858, in violation of tbe laws for tbe suppression of intemperance. Act of January 22, 1855, (Acts 1855, 58,) and act of January 28, 1857, (Acts 1857, 231.) Before the justice, the defendant was found guilty, and he appealed to the District Court, where he was again convicted, and a fine of twenty dollars imposed upon him, from which judgment he appeals. The facts and errors assigned, are sufficiently shown in the opinion.</p>

This was a bill in chancery to settle the accounts of a partnership between the complainant and defendant, and for other relief.

Bill in equity. — The petition represents that one Arnold Winchester recovered a judgment against the complainant, in the District Court held in Warren county, for about fifty dollars, in June, 1854. In August of the same year, an execution was issued and levied upon a certain tract of land of forty acres, in Pollc county, which the sheriff, McHenry, advertised and offered for sale, but did not sell, for the want of bidders.

The plaintiffs brought their action upon two transcripts of judgments rendered in Pennsylvania, which, in form and character, are substantially like that in Taylor, Shipton &; Co. v. Runyan I. The court erred in admitting parol evidence to prove the' laws of the State of Pennsylvania. Latterett v. Cook, 1 Iowa 1. II. The parol evidence admitted to prove the judgment should have been excluded. 9 Shepler 230. The papers do not on their face show a judgment.

Plaintiffs claim damages for the act of defendant in grading a certain street and alley, thereby throwing, as they claim, a large amount of water in and upon a lot owned by thcm, and injuring their buildings and some articles of personal property ; and for other injuries resulting from said grading. Yerdict and judgment for plaintiffs. .Defendant appeals.

<p> Appeal from Scott District Court. </p> <p>The material facts are presented in the opinion of the court.</p>

IN equity. The respondent was not personally served, and the decree was entered by default. An affidavit was filed to the effect that a sealed envelope, containing true copies of the petition and notice, was deposited in the post office at Dubuque, directed to “ Thomas Connelly, Sacramento City, California.” The postage was prepaid and the envelope deposited January 15, 1857. The decree was rendered July 17, 1857. Respondent appeals.

District Court. In a proceeding by attachment, at the suit of plaintiffs against Coopers & Clarke, these defendants were summoned as garnishees.

Plaintiff’s claim, in part, is for the value of a town lot sold to defendant, and for which he avers he tendered a deed according to his contract. Defendant admits the contract and denies the tender. On the trial, plaintiff offered in evidence a deed properly signed, and upon the face of it properly ack-knowledged. Defendant offered the justice, before whom deed purported to be acknowledged, and proposed to prove by him, that said deed never was acknowledged.

<p>1. Garnishee’s answer. A garnishee notified to appear and show cause why execution should not issue on a judgment previously rendered against him, by default, must show a meritorious defense in connection with his excuse for being in default.</p> <p>2. Merits. lie may file an answer to the interrogatories provided by the Code, denying his liability, with his affidavit excusing his default, but such answer will not be heard until the default is set aside.</p> <p>3. No petition necessary. The plaintiff is not required to file a petition when calling upon the defendant to show cause why an execution should not issue. The service of notice to appear and show cause is sufficient.</p> <p>4. Rights of the garnishee. The garnishee can be placed in no worse condition than if the attachment defendant, himself, were prosecuting the claim against him. Smith, Twogood <$• Co. v. Clarke § Henley, ante cited and followed.</p> <p>6. Code construed. Sections 1869 and 1870, of the Code of 1851, cited and construed.</p>

<p> Appeal from Scott District Court. </p> <p>Plaintiff seeks to recover for one-half of a wall built by him. The petition contains three counts. The first alleges that in 1854, plaintiff was the owner of the north part of a lot in the city of Davenport, and one Leslie, the owner of the part adjoining in the south; that in that year plaintiff erected a house upon his part of the lot, one half of the south wall of which, with the permission of said Leslie, was placed and rested upon the land of said Leslie; that in 1856, the defendant then being the owner of the said south part, erected thereon a brick building, using, for that purpose, the said south wall, with the understanding that he should pay petitioner one half of what the said wall was reasonably worth.</p> <p>The second count charges that in 1856, one Hicks, with James Wickersham, (not the plaintiff,) were the owners of said north part of said lot, as also of the ■ house aforesaid, with the south wall resting on the land owned on the south; that defendant then took possession of said south wall and used the same in the erection of a building, making the same the north wall of the said- building, with the understanding that he should pay what one half of said wall was reasonably worth, that the reasonable value is so much as is shown by an account exhibited which has been duly assigned and trans-fered to plaintiff. The third count avers a contract between Ilicks and Wickersham and defendant, entered into in 1856, by which they sold to him one half of said wall, for which he was to pay what the same was reasonably worth; that under this contract he took possession of said wall, and used the same in erecting his house; that it was worth so much, the account for which has been assigned to plaintiff.</p> <p>There was an answer, replication, rejoinder and sur-rejoin-der, which, so far as material, will be found referred to in the opinion of the court. Judgment for plaintiff, and defendant appeals.</p> <p>I. The court erred in refusing to exclude parol testimony to establish a contract relating to a party wall. The contract should have been in writing. Laws 1855, p. 130, section 12.</p> <p>II. The court erred in' admitting the evidence of the defendant’s grantor to show a contract of reservation, which does not appear on the face of the deed. The contract was not in writing and could not vary the deed. Harlow v. Thomas, 15 Pick. 66; Townsend v. Head, 8 Mass. 746; Collingwood' v. Irwin, 3 Watts 306; 1 Greenl. Ev., section 275; Part 2, Cowen & Hill’s notes, Phill. Ev. 467; 1 Sug. Yen. 178; 9 N. H. 392.</p> <p>III. The half of the wall resting on the land of defendant, was a part of it; it was real estate, and passed with the land to defendant from his grantor. 2 Bouv. Diet., title, Land; Coke’s Inst. 4; 1 Black. Com. 11; Brocket v. Penn. $• Ohio Rail B. Co., 3 Harris 243; 16 Mass. 449; Code of Iowa, section 26; 5 Taunt. 200; Eno v. Eel Vechio, 4 Duer 53; 6 lb. 17; Webster v. Stevens, 5 lb. 553; Partridge v. Gilbert, 1 Smith, 601; Wigfórd v. Gill, Cro. Eliz. 296. It is true that a house or other structure placed upon the land of another, with the owner’s assent, remains the property of the builder, if it is of a temporary nature, capable of being removed, and is intended by the parties to bo removed. Wells v. Bannister, 4 Mass. 514; Mareey v. Barling, 8 Pick. 283 and 402; 10 lb. 540; 10 Maine 429; Rickey v. Kelley, 1 Greenl.; 6 Maine 542; 11 lb. 371; 12 lb. 162.</p> <p>IY. The right to occupy or use the land of another in the construction and support of a partition wall of a permanent brick or stone building, whose foundations are imbeded in the soil, for an indefinite time, is an easment. It lies in grant, and can only be created by deed, or be established by prescription. Gale & Whattley on Eas. 12; 3 Kent 434; Orleans Manufacturing Company v. Neiv Orleans, 2 Martin 214;'Coke Lit. 9a; Code of Iowa, section 2410.</p> <p>V. A parol license, executed, can confer no such right as is claimed by the defendant, such right being an interest in the land. Gale Whattley, Eas. chap. 3; 2 Am. Lead. C. 506 et seq.; Prince v. Carr, 10 Cow. 375; Benedict v. Benedict, 5 Day 464; Cook v. Stevens, 11 Mass. 533; 1 Cow. 568; 15 Wend. 380; 1 Hill 171; 6 lb. 14; 5 Barb. 379; Wolf v. Frost, Sand. ch. R. 72; 1 Gill & John. 366; 2 Gill 221; 1 Zab. 390; 17 Yer. 43; Bell v. Elliott, 5 Black. 113; Rickey v. Kelley, 1 Maine 117; 17 lb. 123; 1 Sug. Yen. 107 and note.</p> <p>YI. Such a license in equity can operate only between the original parties. It cannot be enforced against the grantee of the licensor. Jackson v. Babaclc, 4 John. 418; Gale & Whattley Eas. 29 and cases there cited; Miller v. Auburn fy Syracuse R. R. Co., 6 Hill. 64; Ruggles v. Lesure, 4 Pick. 487; Stevens v. Stevens, 11 Met. 251.</p> <p>I. The special contract referred to in Session Laws 1855, (section 12, page 180,) and required to be in writing, are obviously sucb as controvert tbe provisions of said act, and not sucb as tend to carry out its provisions.</p> <p>II. Tbe interest of tbe defendant’s grantor is balanced. If be is liable to tbe plaintiff on his contract, be is also liable to tbe defendant on the covenants in bis deed.</p> <p>III. While the grantor is estopped by the covenants of bis deed, from saying that tbe land was sold subject to an in-cumbrance; a third party holding sucb incumbrance, may show the fact by the grantor, and also that tbe purchaser took tbe property with actual notice of tbe incumbrance.</p> <p>IY. A grantor can convey only bis interest in land, especially if tbe purchaser have actual knowledge of the extent of sucb interest, and of tbe rights of third parties. Osgood v. Howard, 6 Maine 391; Russell v. Richards, 10 lb. 429; 11 lb. 371.</p> <p>Y. A license executed cannot be revoked by the licensor, or his grantee with notice. 14 Serg. & R. 571; Syler v. Fchhart, 1 Binney, 378; LeFevre v. LeFevre, 4 Serg. & R. 241; Richer v. Kelley, 1 Maine 117; Doty v. Graham, 5 Pick. 487; Marcy v. Darling, 8 Pick. 383; Gurry v. The Commonwealth Ins. Co., 10 Pick. 535; Russell v. Richards, 6 Maine 429 ; 10 lb. 429; 11 lb. 371; Hillhurn v. Burns, 12 lb. 162; Winter v. Beeckwell, 8 East. 308; Clement v. Durgin, 5 Grreenl. 9 ; Zugenhuhler v- Gilliam, 3 Iowa .391</p> <p>YI. If tbe plaintiff be regarded as a tenant at will, his rights are tbe same while tbe tenancy exists ; and after tbe termination of his term, be has a reasonable time to remove his wall. 11 N. II. 102 7 lb. 237; 15 Ohio 248; Davenport v. Mason, 15 Mass. 89; 8 East 308; 5 Mass. 164.</p>

<p>1. FORECLOSURE: TRUSTEE SHOULD BE A party. In an action by a cestue que trust to foi’eclose a deed of trust, on personal property, in Ms favor, the trustee should be made a party.</p> <p>2 Code costrued. Section 1693 of the Code was not intended to apply solely to eases of tort. It refers primarily and principally to matters of contract.</p> <p>3. Same. Sections 1776-7 and 1693 do not change the general rule requiring that the trustee named in the deed of trust shall be made a party to an action to foreclose the same.</p> <p>4. Discontinuance of newspaeek. The discontinuance of the newspaper in which the trustee is required, by the terms of the deed, to advertise the sale, does not divest him. of his legal title.</p>

ACTION on a note. Judgment for plaintiff, and appellant appeals. The questions raised by the appellant are stated in the opinion of the court.

The plaintiff claims one thousand dollars, upon an agreement of the following purport: Plaintiff bargains and sells to defendant a stock of hardware in Des Moines, for the prices, and upon the conditions following: price to equal prime cost and transportation, added — to be paid in four equal payments; in six, nine, twelve and eighteen months, with ten per cent interest, according to four promissory notes, to be executed by defendant, with good and sufficient sureties.

Ur equity. Complainant sets up that the intestate, for tbe purpose of defrauding Ms creditors, conveyed certain lands to one Whitney, who afterwards conveyed the same to his grantor’s wife. WMtney and decedent’s widow are made parties respondents. The widow makes default. Whitney answers, admitting the facts charged, except that of fraud on his part, confessing ignorance until after the deed was made to him. The bill was dismissed.

The plaintiff, (the father,) sues the defendant, (the son,) upon a contract by which the son, in consideration of the plaintiff’s property, undertook to keep and maintain him and his (defendant’s) mother during their lives. To an amended petition there was a demurrer, which was sustained. An attachment was issued and on defendant’s motion dissolved. Plaintiff stood upon his petition and appeals.

Plaintiff suedbefore a justice to recover a balance claimed upon a promissory note. The defendant answered, that said note was obtained by fraud and without consideration; that plaintiff represented that he was agent for certain reapers, obtained the note and was to send a reaper to defendant; that he was not such agent, and did not send the reaper per agreement.

AppealJ^rom Marshall District Court. These cases are in equity — are in all essential respects alike, and are considered together in the opinion of the court. February 14th, 1856, Elder mortgaged certain lands to one Emery, to secure the sum of $1600.

<p>1. fetippoRi oj? TiiEroon: Codeconstrued. ünderchapter48, Code 1851i the township trustees may proceed by the method prescribed by sections 788, 799, to compel a child to maintain and support a parent; or the county may give the necessary relief without resorting to this process and recover of the defendant, by action in the District Court, as for money paid to his use:</p>

Tbis was a proceeding commenced before the County Court, to pre-empt a certain parcel of tbe swamp or overflowed lands, subject to entry in said county. The plaintiffs right was denied in the County Court, and he appealed to the District Court.

Trial before a justice, and proceedings taken by defendant to the District Court, by writ of error. The return of the justice to the writ, and to the different grounds of error set out in defendant’s affidavit, only shows that defendant filed his answer, that the account sued on was made on Sunday ; plaintiff denied and answered by striking out the dates of said account; and defendant moved to strike the cause of action from the files, which motion was overruled.

Action for tbe value of one-balf of a partition fence. The material facts appear from the opinion of the Court. Held: that in the various cases hypothetically stated in the judge’s charge, the action might be maintained, without the intervention of the fence viewers.

It is made to appear by tbe information of tbe Burlington and Missouri River Rail Road Company, that, in pursuance of authority conferred upon him by a vote of tbe people of Wapello county, talcen on tbe 24th of September, 1853; the county judge of said county, for and in behalf of said county, subscribed for one thousand shares of the capital stock of said company, in shares of one thousand dollars each, payable according to the terms of said subscription, in installments…

On the 18th day of September, 1857, the plaintiff caused the defendants damages, for the right of way of their road over lot four, in Ottumwa, to be assessed under “an act granting to Railroad Companies the right of way,” approved January 18th, 1853. The damages were assessed at six hundred and thirty-seven dollars. On the 16th October following, within the thirty days limit prescribed by said act, the defendant filed an appeal bond with the sheriff.

ACTION on a promissory note. The error in the proceedings below, of which the appellant complains, is presented in the opinion of the court. Judgment for the plaintiff, and defendant appeals. relied upon Davis v. Burt, et al., 7 Iowa 56; Diltz v. Chambers, 2 G. Greene 479; Peck-ley y. Gleason, 1 Iowa 85; Hodges sí. Hodges, 6 lb. 78; Harmon y. Lee, lb. 171; Converse v. Warner, 4 lb. 158.

<p>1. Set-ofe need not be verified. A set-off pleaded by a defendant is not an answer to thsr petition; it is a counter claim or cross action, and need not he under oath, even where the plaintiff requires an answer under oath.</p> <p>2. Same. Where the plaintiff required an answer under oath, and defendant filed an answer admitting the material allegations of the petition, and setting up a set-off, not under oath; Held, that the court erred in striking the set-off from the files.</p> <p>3. When taken as tkue. A plea of set-off when not replied to is to be taken as true.</p>

<p> Appeal from Wapello District Court. </p> <p>referred to 4 Bout. Inst. 305; Story’s Eq. PI. section 201; Code of 1851, chapter 118, also sections 1678-1679-1814-1815-1816; Wing v. Davis, 7 Greenl. R. 31.</p>

ACTION on a promissory note. Judgment was rendered for plaintiffs, by agreement of the parties. Defendant appeals. Tbe errors complained of are presented in the opinion of the court. cited the Code of 1851, section 946; Chapter 87, section 3, Laws 1852-3; Burkhart v. Sappington, 1 G. Greene, 66; Gower Holt v. Garter § Shattuck, 3 Iowa 244.

<p> Appeal from the Hardin District Court. </p> <p>The material facts are fully stated in the opinion.</p>

The material, facts are fully stated in tlie opinion of the Court. in support of their views, cited Code of 1851, sections 1193-95; Watson v. Williams, 4 Black. 26; Hawkins v. Ingalls lb. 35; Camp v. Camp, 2 Hill 628.

<p>1. Service oi? notice by pubbication. ünder section 1, chapter 240, Laws of the Sixth General Assembly (1857), service of original notice may be made by publication, when it is shown that the defendant, being a resident of the State, has departed therefrom with intent to defraud his creditors; or that he keeps himself concealed therein with like intent. It is not necessary to show that lie is a non-resident having-property in the State,</p> <p>2. Same. Where the order of the judge directing service by publication was defective in this, that it did not direct that a copy of the petition should be mailed with a copy of the notice to defendant's place of residence ; Held, that the mailing of a copy of the petition by the plaintiff cured the defect.</p> <p>3. “Forthwith.” *The mailing of the copies of the petition and notice, as directed by the order, on the second day after it was made, held to be a substantial compliance with the requirement to mail “forthwith.” Proceedings will not be held nugatory because of delay in mailing, unless such delay be unreasonable.</p>

Aciioif on a promissory note. The petition contained, allegations of cause for a writ of attachment, which was issued. The other facts necessary to an understanding of the case, are presented in the opinion of the court. . The plaintiff appeals. relied upon the Code of 1851, section 185, 1876; The People V. Covert, 1 Hill 674; The People v. Bartlett, 6 Wend. 422; The People v. White 24 lb. 539; The People v. Stevens, 5 Hill 616; The People v. Cook, 14 Barb.

<p>1. Judgment wild not be bevebsed bob an immaterial ebboe. The judgment of the court below will not be reversed, unless the appellant shows affirmatively an error in the ruling of the court, whereby his rights were prejudiced.</p> <p>2. Interest on open account. When not otherwise agreed by the parties, interest on money due on an open account, should be allowed at the rate of six per cent per annum commencing six months after the date of the last item. Chapter 37, section one, Laws Fourth General Assembly.</p> <p>3. Interest on banker’s account, where the defendants kept an account with plaintiffs as bankers, and at the end of each month a balance of account was ascertained and entered in the books of both parties, and interest reconed thereon; and it was shown that such was the custom of bankers, and that it was known to the defendant, but that he never interposed any objection thereto; Held, that plaintiffs were entitled to have interest computed on their account by monthly rests, and that the court did not err in refusing to instruct otherwise.</p>

In an action pending before a justice, upon the affidavit and motion of defendant, plaintiff was ruled to give security for costs — failing to do wliich, his suit was dismissed. To correct this order he sued out his writ of error from the District Court. He also sued for the same demand before another justice, upon which there was a trial, and judgmnet for the plaintiff, which was paid by defendant.

Plaintiffs sued in the Adams District Court upon two notes made payable on their face, in Quincy, in said county. They asked an attachment, upon the ground that defendant was a non-resident of the state. The writ was issued to the sheriff of Taylor county, and by him levied upon the interest of defendant, in certain lands situated in that county.

Replevin for a lot of carpenter’s tools. For a statement of the facts and assignment of errors, see tbe opinion of the court. cited Loyd v. McClure, 2 Gr. Greene 140; Jourdan v. Reed, 1 Iowa 138.

REPLEVIN. The defendant, as sheriff, levied upon the property in dispute, as belonging to Shields, Pollock & Co. The plaintiff, a member of the firm, claims it as his. Yerdict and judgment for defendant; and plaintiff appeals. The errors alleged are presented in the opinion of the court. cited Graves v. Dela-plaine, 14 Johnson 148; Code 1851 section 1783. relied upon Adams v. Foley, 4 Iowa 44.

Information was filed against defendant, Glass, before a justice of the peace, charging him with assault and battery. He entered into bond for his appearance at a subsequent day. Not appearing, he was defaulted, and an action commenced before the justice to recover the penalty of the bond. The obligors appeared and answered, judgment was rendered against them for the penalty of the bond, ($100,) and they appealed.

This was a proceeding to foreclose a mortgage. The points relied upon to reverse the judgment are presented in the opinion. The defendant appeals. cited 1 Chit. PL 1; Code of 1851, sections 1676 and 2084; Buckbee v. Brown, 21 Wen. 110; 3 Bouv.

The entry of' judgment recites: “ plaintiff appeared by his attorneys, and the defendant appeared by his attorney, &c.” This was at the April Term, 1858, of the Boone District Court. Defendants perfected their appeal in -October, of that year. The cause was continued at the December Term, 1858, of this court, and at the April Term, 1859, of the District Court, after notice to plaintiff, defendants moved to correct the record.

Petition asked a mechanic’s lien. The contract was made with Nickols, and the action is brought against him, certain persons as subsequent incumbrancers, and Sherman a subsequent purchaser.

The material facts are presented in the opinion of the court. The defendant appeals. I. The first return to tbe writ of mandamus, was as lows: I William C. Smith, county judge of Marshall county do return that on the 6th day of January. A. I). 1859, I obeyed the mandate of said writ, and performed the duties by said writ required.” This was a complete return, and should not hare been quashed. Tapp, on Man. 346 and 348 (marginal). II.

Action on. a promissory note, dated March 5th, 1857, due in seven months, for $200, payable at the banking house of Nickols, Campbell & Co., to the order of N. Oorrona, transferred before maturity to plaintiff, and containing these words: “and we also agree that the holder hereof may enforce, delay, or extend the payment of this note at pleasure, in according to contract.” On the same day the parties to the note entered into a contract, in substance as follows: Rusch bought…

<p>1. Evidence: statute or eeauds. where a sale of real estate was evidenced by the notice specifying the terms and conditions upon which the property would be sold; a plat of the property, upon which was entered the name of the purchaser and the price bid; a letter of the purchaser relating to the purchase, all of which was connected by the parol evidence of the clerk at the sale, who made the entries upon the plat; Held, that the evidence was admissible to prove the contract.</p> <p>2. Same. The memorandum in writing, of a contract transferring an interest in lands, need not be on one paper. Neither is it necessary that all the parts should be cotemporaneous, or so complete when brought together, as to preclude the necessity of parol evidence to explain them.</p> <p>3. Statute oe eeauds. The statute of frauds prescribed by the Code of 1851, compared with the English statute. Wertheimer v. Peacock, 2 Iowa 530.</p>

This action was commenced in the District Court of Hardin county, to enforce a vendor’s lien against certain lands lying in said county. The defendant, who resided in Grundy county, moved the court to change the venue to said county, which was granted, with costs. The plaintiff appeals. relied upon sections 2094 and 2095 of the Code of 1851.

Plaintiff’s action is founded on a promissory note. Defendants’ answer denies the indebtness charged, as also the execution of the note, and for further answer, sets up and seeks to set off certain damages resulting to them, by reason of the failure of plaintiff to fulfil his warranty and agreement in relation to certain machinery and fixtures for a steam saw mill. .

<p> Appeal from Mills District Court. </p>

The plaintiff sued McHarg and J. M. D. Burroughs on a joint and several note, for one thousand dollars, dated 7th July, 1857, and due on the 1st day of September, with interest at ten per cent, if not paid when due. Burroughs did not answer, but McHarg filed an answer, pleading usury. The verdict and judgment were for the plaintiff, and defendants appeal.

This action was brought upon a note dated March 12,1852, due nine months after date, payable to plaintiff, and signed “Woodward & Warde.” Woodward was served, and answered, denying under oath, the execution of said note, by himself or any person for him.

In June, 1855, Johnson and wife executed a mortgage to Mary Lytance, to secure the sum of one thousand dollars. Mary afterwards married Edwin Field, and at the October term, 1858, of the Scott District Court, they obtained a judgment for the foreclosure of this mortgage. This proceeding was against Johnson, and Francis Impey, H. Darlington and John E. Dillon, who were charged as subsequent incum-brancers, or as having, some interest in the property.

ACTION to recover rent due on a written lease. The defendant answered that the plaintiff was to make repairs, and do certain work on the premises, which was a condition precedent to the lease taking effect, and that he did not perform in this respect.

Action against tlio defendant as a common carrier of passengers, for damages sustained by tbe breaking of tbe arms of' tbe plaintiff, Lois Russ, while in tbe charge of tbe defendant, on a trip to Saint Paul and back, during tbe summer of 1857. Tbe error assigned by defendant, who appeals, upon which the case turns, is presented in tbe opinion of tbe court.

This was a proceeding to recover an amount claimed to be due upon a joint and several promissory note.

<p> Appeal from Dubuque District Court. </p>

The plaintiff sued on a note for twenty-one dollars, made by the defendant to Sherman & Wilson, dated February 19th, 1858, and due in sixty days after date, and endorsed to the plaintiff.

<p> Appeal from Des Moines District Qourt. </p> <p>On the 8th May, 1856, the firm of Lischey & Clark, purchased of Larkin & Yanorsdale, a small parcel of land, with a mill upon it, for which they gave their security, to the vendors severally, in proportion to their interests, of one third to Yanorsdale, and two thirds to Larkin; at the same time they bought of Larkin a tract of about five acres, with a house upon it, which is known as “the homestead,” for which they were to pay $700, paying $300 in hand and giving their partnership note for the remaining $400; as security for the payment of the notes, on both these purchases, they executed a deed of trust to Crocker, (with power to sell, in case of non-payment, on the mill property, and another on the homestead lot. The note of $400 having fallen due, Crock-er was proceeding to sell, having advertised, when Clark filed this bill to injoin the sale. An injunction was allowed, but upon hearing, it was dissolved and the bill was dismissed, and the complainant appeals.</p>

<p>1. Statute oe ekauds. An agreement to procure a conveyance of lands by another, is not a contract within the statute of frauds, and may be proved by parol.</p>

<p> Af’peal from Linn District Court. </p>

Plaintiffs claim upon two promissory notes, one due and the other not, at the time of the commencement of the action. An attachment was prayed for and issued. On defendants’ motion the attachment was dissolved, and on the trial of the main action, judgment was rendered against plaintiffs for costs, and they now appeal. For the other facts see the opinion. cited Drake on Attach., section 108, et seq.

This indictment wras found April 80th, 1858, and charges that defendant committed an assault and battery, December 18,1857. A demurrer filed September 27, 1858, was sustained, and of this the State now complains.

In an action commenced before a justice, defendants, among other items, claimed as a set-off, an account for painting and glazing four bouses.

Our the 2d April, 1857, Alexander H. Barrow, to secure the payment of several promissory notes made by him, executed and delivered to John E. Dillon, a deed of trust, conveying to said Dillon, as trustee, a tract of land in Scott county; and authorizing said Dillon, in case of non-payment of said notes, or either of them, to sell said land, and from the proceeds of the sale, to pay the said notes, with the costs and expenses of sale, &c. One of said notes, being for…

Ellison & East made their negotiable promissory note to defendants, who endorsed the same in blank, after it became. due. Plaintiffs, upon the trial, did not prove that the indorsers had, at any time, notice of non-payment, nor that there had been any demand of payment upon the makers. Judgment for plaintiffs, and defendants appeal. relied upon 9 John. 120; 1 Cow. 38 ; 2 Seld. 509; 3 Com. 494; Edward’s Bills and Prom.

This action was brought against all of them on this note, and an attachment prayed for and issued against Hobbs. In the District Court, Hobbs moved to dissolve the attachment, which motion was sustained. Neither of the defendants appeared to the main action, and judgment was rendered against them for the amount claimed, with interest. Hobbs and Mallory appeal from this judgment, and the plaintiffs from the order dissolving the attachment.

In Chancery. The material facts are stated in the opinion of the court. contended that the bill is not multifarious.

Walker and Reeves made their negotiable prommissory note to one Mills, and he, with one Knight, indorsed and assigned the same to plaintiffs. This action is brought against all of them. The makers of the note make default. The indorsers answered, admitting the execution of the note, and the indorsement, but denying the protest, demand, and notice of non-payment. Trial, verdict, and judgment for defendants, and plaintiff appeals. .For the material facts, see the opinion.

<p> Appeal from, Bes Moines Bistrict Court. </p>

This was a bill brought against certain tracts of land and the unknown owners thereof, to foreclose the right to redeem under a sale for taxes. The decree was rendered in favor of the petitioner. The questions made and the facts upon which they depend, appear in the opinion of the court. relied upon sections 510, 1714, 1679, 1826, of the Code of 1851; Lot Two v. Swet-land, 4 G- Greene 24; Pinkney v. Pinkney, 4 lb. 324; Broghill v. Lash, S lb. 357.

<p> Appeal from, Dulmque District Court. </p>

The plaintiffs sued upon a promissory note dated 4th September, 1857, and due in six years from date. Judgment for the plaintiff, and defendant appeals.

The indictment contains two counts. The first charges that defendant did, in a certain store of one Hervey, situate, &c., on, &c., feloniously, wilfully, &c., set fire to a great amount of shavings, &c., with intent then and there feloni-ously, &c., to cause the said store of said Hervey to be burnt, &c. The second charges that the fire was set in a room within a store building of the value, &e., of one Hervey, with intent then and there to cause, &e. Upon the trial it was…

Appeal frow Lee District Court, At tbe September term 1857, of the District Court in Lee county, John M. Hiatt and Leander Harbin, filed their information representing that the council of the city of Keokuk had ordained that Third Street, in said city, should be extended beyond its former limits, so as to run through certain land of the relators, and directly over a mill containing a saw mill and lath and planeing machine, belonging to them, of great value; that, under the…

This was a bill in equity to settle a partnership. The complainant alleges that the two parties had been in partnership in the transaction of law business generally, and also as real estate and insurance agents.

<p> Appeal from Henry District Court. </p> <p>Replevin. Eor tbe material facts see the opinion,</p> <p>cited Mims v. Sturdevant, 23 Ala. 664; Beal v. Ludlow, 14 Ala. 523; Hadden v. Powell, 17 Ala. 314; Holt v. Walicer, 26 Maine 107; Maxwell v. Harrison, 8 Georgia 61.</p>

Miller sued O’Neal before a justice of the peace, on an account for services rendered and money lent. On the trial O’Neal, the defendant, objected to the decision of the justice, in admitting certain testimony offered by the plaintiff,-and in rejecting certain testimony offered by the defendant; and also to the allowance of certain costs in favor of plaintiff; and sued out a writ of error to remove the cause into the District Court.

The material facts are fully stated in the opinion of the court. I. Main street, the public squares and other streets of Dubuque, were laid off by the General Government. The lots alone were sold — the title in fee of the soil in the streets yet remains in the General Government. See the acts of Congress, approved July 2, 1836, and March 3, 1837,-in the Code of 1851,- page 536-538.

Jiff ml from Muscatine District Court. The first count of the petition alleges that .the defendant, in July 1857, by her officers, agents and servants, wrongfully dug up, took and carried away, from the front of plaintiff’s house, (which was the Muscatine Hotel,)-situate on lot five, in block seventy-four; in Muscatine, the soil or earth below the established grade as fixed by the proper authorities, to the depth of three feet, and in so doing undermined the front wall of…

REPLEVIN. The defendant, as secretary of school district No. 8, in Charlestown township, Lee county, seized a yoke of oxen by virtue of a warrant duly issued to collect a school tax that had been levied upon the property of plaintiff. Tho plaintiff brought his action of replevin to recover the property. Judgment was rendered pro forma by the justice, for the plaintiff. In the District Court this was reversed, and judgment rendered for the defendant. Plaintiff appeals.

The Plaintiff sued the defendants on a contract of the tenor following: “April 25th, 1858. Four months after date, for ■value received, I promise to pay Crosby & Co., or bearer, one hundred and ten dollars in merchantable wagon lumber, at two dollars per hundred — such sizes and dimensions as we may order, and to be delivered at our shop in Marion' — and if -not paid in lumber, to be cash and ten per cent interest after due.

The plaintiff sued Adams and procured an attachment against his property. Certain persons were summoned to answer as garnishees, and beyond this there was no service of the attachment. To release the garnishees, or the property in their hands, Adams gave his instrument in writing, with sureties, in the usual form of a delivery bond, which was received by the sheriff and returned with the writ. Plaintiff now sues upon this bond.

cited 5 Ohio 444; 9 lb. 106, and the cases there cited. relied upon 2 Grreenl. Ey. sections 118 and 114; Stephens N. P. 224-326; 1 Smith’s Lead. C. 70 (marginal) and note; Touissant v. Martinet, 2 T. R. 100; Fisher v. Felloios, 5 Esp. 171; Cowell v. Edwards, 2 B. & B. 268; Turner v. Davis, 2 Esp. 478; Brown v. See, 6 B. & C. 697; Chit. Cont. 597; Johnson v. Johnson, 11 Mass. 356; Batchelder v. Fisk, 17 Mass. 474, 6 J. J. Marsh 62; Norton y. Coons, 2 Seld. 33-40.

On the 25th February, 1856, complainants made their mortgage of certain real estate to respondent, Bonney, purporting to secure to him tbe sum of throe thousand dollars, payable twelve months from date. In April 1857, Bonney placed this mortgage in the hands of the proper sheriff, with a view to foreclose the same under chapter 118 of the Code.

The plaintiffs seek to recover damages for the breach of a contract by the terms of which, defendant undertook to furnish certain materials and do certain work in and about a grist mill. It seems that plaintiffs were, at the time, the owners of a steam saw mill, and proposed to erect a flouring mill to be run by the same person.

Action for the non-delivery of goods, received by the defendants, as common carriers, to be transported and delivered according to contract. ■ The first count alleges that defendants,- on 21st January, 1858, as common carriers, received twenty-three boxes, three bales; and three barrels of goods, of the value of ten thousand dollars, which, for a reasonable reward to be paid, they undertook to carry from Muscatine to Iowa City, and deliver in like good order and condition,…

This was an action on a promissory note executed by A. C. Shelden and Theodore Shelden, to Greenough, Cook & Co., the plaintiffs.

Bay executed to Alley a mortgage on a lot in Iowa City, in which mortgage his wife did not join. Afterward, in 1856, he, with his wife, executed another to the assignor of Luther Dickey. After this, in 1858, Alley filed his bill to foreclose, making the wife a party, “that she may show cause, if any, why the petitioner should not hare the relief sought.” Bay and wife made no defense, and she showed no cause against the petition.

Appeals from Powesheik District Court. Two suits, each on bonds given by defendants, severally as the agents of Powesheik county, for the sale of intoxicating liquors.

<p> Appeal from Wapello District Court. </p> <p>cited 1 Wheat. Selw.N. P. 184; 2 Phil. Ev. 181, 166; 4 N. H. 557; Sheets v Bdldivin, 12 Ohio 120.</p>

The plaintiff sued for goods sold and delivered. The defendant, Snodgrass only, answered, denying the allegations. of the petition, and pleading the statute of limitations. The plaintiff replied a new promise. Judgment was rendered for the plaintiff and the defendant appeals. cited Par. Mer. L. 180; Bell v. Morrison, 1 Pet. 851; 2 Par.

On the 2d August, 1855, the defendant gave his note for $515.58 to Webster, Button & Call, payable in one year, which was indorsed to the plaintiffs without date. It was payable at the banking house of Henn, Williams & Co., in Chariton, Iowa.

Suit on a judgment rendered in the Court of Common Pleas, of Eayette county, Pennsylvania, (vide S. C. 3 Iowa, 474.) Since the former hearing in this court, plaintiffs amended their petition, defendant (Brown) answered, under oath, and called upon plaintiffs to reply in the same way. Plaintiffs did reply, denying all of the allegations of the answer, but not under oath.

The plaintiff sued for the sum of $1168.50, the price and value of goods and merchandise sold and delivered the defendant, and annexed a paper purporting to be a bill of particulars. A writ of attachment was sued out, under the act of 1853, and property to the amount of $449.22 having been attached, the Afrit Afas returned, and aftenfard a second one Avas issued in the same county; no additional affidavit being made and no further bond being given.

Right. Both parties claim under one Turner. The plaintiffs’ title stands thus: The property was attached July 10, 1855, at the suit of Butler & Winter against Turner. September 5, 1855, a judgment was obtained in that action, on which an execution issued, which was levied on the property in controversy. September 31st, it was sold under the execution, to plaintiff.

<p> Appeal from Keohuh District Court. </p> <p>Scire facias. The writ recites that on the fourth day of July, 1856, Willis Clemons, Aurora Clemons, and A. C. Price, entered into a recognizance to the State of Iowa,-in the penal sum of twelve hundred dollars, before M. H. Keith a justice of the peace of Keokuk county, conditioned that the said Willis Clemons should appear at the next term of the District Court of said county, and abide the judgment of the court, and not depart without leave of the court; and that at the said next term, to-wit, at the September term for the year 1856 of said court, the said Willis Clemons, though duly called by order of said court, to answer an indictment for the crime of seduction, found by the grand jury of said county at the said September term, came not, but made default of hm appearance. The said Aurora Clemons and A. C. Price were duly served. Willis Clemons was not found.</p> <p>The proceedings on the scire facias were commenced on the 27th of March, 1857. The defendants served with process, showed for cause against the rendition of any judgment against them, that said Willis Clemons was in-dieted by tbe grand jury on the 18th of September, 1856, at the September term of the District Court of Keokuk county, for the crime of seduction; that he made his appearance at said court on the first day of the term, and was ready to answer to said indictment, and abide the judgment of the court; that he was not required to appear for arraignment, trial, or judgment on said indictment; that he never was arraigned or required to plead to said indictment at said September term, or at any other term; that said indictment is still pending, and said Willis Clemons has always been and still is ready to appear and answer the same; that he never made default of his appearance to answer the same; that the said recognizance was never forfeited as required by law; and that upon the presentation of the indictment to the grand jury, the said court ordered the said Willis Clemons to be arrested and to be held to bail in the sum of eight hundred dollars ; that he was arrested in pursuance of said order and appeared at the July term, 1857, and entered into a recognizance to appear at the next term thereof to answer said indictment; that he did appear at the November term, 1857, and again entered into a recognizance to appear at the next term thereof; that the same has not been disposed of but is still pending, and that the fact that the said Clemons was never required to appear and answer to said indictment until the July term, 1857, and his appearance at that time, and entering into a recognizance as required, was a discharge of the recognizance taken by the said Keith.</p> <p>To this answer there was a replication, and issue being-joined, the cause was tried by the court at the November ' term, 1857. The state gave in evidence, the recognizance taken by the justice for the appearance of the said Willis Clemons at the September term of the District Court, 1856; also, the record of an indictment found by the grand jury at the said - term, against the said Clemons for seduction, and duly presented to said court. That said defendant was called to answer the same at the said term, and made default of bis appearance, which was entered of record. It also appeared in evidence that an indictment found by the grand jury at said term, against the said Clemons, was, on motion of the prosecuting attorney, for the State, set aside and dismissed. The State called to the witness stand the said prosecuting attorney and proposed to prove by him that the said indictment which was dismissed, was for the identical offense with which the defendant Clemons was charged in the other indictment found by the grand jury at the same term. This evidence was objected to by the defendant. The objection was overruled by the court, and the evidence permitted to go to the jury.</p> <p>The defendant then gave in evidence to the jury, from the records of the court, that at the July term, 1857, in the case of the State of Iowa v. Willis Clemons, the defendant came into open court, and was arraigned according to law, and pleaded “not guilty,” and the said cause was continued until the next term. Also at the November term 1857, the following entry from the records:</p> <p>“ State of Iowa v. Willis Clemons, Criminal cause No. 2.</p> <p>“ The cause came on to be heard on the motion of the State, for a continuance of the same to the next term of this court, and the court being fully advised in the premises does grant a continuance of the same to the next term of the court, and orders the defendant to enter into a new recognizance for his appearance at the next term of this court, to ansAver said indictment and not depart from the court without leave, but without security. And it is further ordered that the recognizance by the defendant at the July term 1857, with Aurora Clemons and Joel Crossman his securities, be, and the same is, hereby canceled, and all parties thereto discharged therefrom.”</p> <p>The bond directed to be canceled was given by Willis Clemons with Aurora Clemons and Joel Crossman, as sureties, in the penal sum of eight hundred dollars, conditioned for the appearance of Willis Clemons at the next term of the District Court of said county (in November, 1857,) to answer an indictment for seduction.</p> <p>The defendant then offered to prove by a competent witness that Willis Clemons was present at the September term of the District Court for said county, until the close of the term; that he was a resident of Keokuk county, and was a resident of the same during said month of September ; that he voluntarily gave himself into custody of an officer and entered into a new recognizance. Objections being made by the State to the introduction of this evidence, the objection was sustained and the evidence excluded.</p> <p>This being all the evidence the court adjudged the recognizance of the defendants forfeited, and rendered judgment thereon for the amount thereof and costs.</p>

ACTION on a promissory note. Judgment by default. At the same term one of the defendants appeared and made affidavit that he had not been served, that he did not believe any notice had been served, that none could be found on file, and that he had never appeared to the action, nor authorized any person to appear for him. Upon the affidavit he asked leave to make a special appearance, and to set aside the default.

<p> Appeal from Lucas 'District Court. </p> <p>Defendants are the makers and indorsers of a negotiable promissory note. To charge the indorsers, plaintiffs offered in evidence the note and the protest of the notary, showing demand and notice as required by law. “Which, (in the language of the bill of exceptions,) was the only evidence offered by either party, and the defendant objected to the introduction of said note and protest, which was overruled; the same was received by the court as evidence, and at the same time, defendant (Malone,) objected to judgment being rendered against him, and thereupon the court rendered judgment against all of said defendants.” Malone is the payee and indorser of the note, and appeals.</p> <p>cited Code of 1851 sections 82, 83, 24, 14; Bossy. Iseit, 4 G. Greene 76; Bealr. King, 6 Ham. 11; 2 Greenl. Ev. 180 note 4.</p> <p>contended that where objection is made to the introduction of evidence in the District Court, it is necessary that the party objecting should state the ground of his objection, so as to afford the opposite party an opportunity to remedy the defect, or this court will not reverse on any ground not thus taken or assigned; citing Thompson v. Blanchard, 2 Iowa 44; McGregor, Lawes Sr Blakemorer. Armill, To. 30; Fre-her v. Geselca, 5 lb. 472; Thurston v. Cavenor, Mss. opinion at Davenport, April 1859.</p>

<p> Appeal from Gass District Gourt. </p> <p>Replevin for one hundred and thirty-two head of cattle of the alleged value of $3300, which the petition charges were taken and driven by the defendants from the rush beds and willows in the Missouri river bottom in January and February, 1857.</p> <p>The answer denies every material allegation of the petition and sets up that about the 27th of January, defendants, with the approval, and for the benefit of plaintiff, took into their possession eighty-six head of cattle which wrere in a starving condition, and took care of and fed sixty-eight of them until March 16th, 1857, and of the others, on an average, for a month. Ry way of cross action, defendants also claim some twelve hundred dollars for taking care of and feeding said cattle, and a lien on them for such care and feed. Replication in denial. Trial and judgment for plaintiff for the cattle, and in favor of defendant for $300. Plaintiff appeals.</p>

<p>1. Pleadings. Where in an action on two promissory notes, the petition, which, was sworn to and demanded an answer under oath, claimed of the defendant the sum of two thousand dollars, and the defendant answered under oath, denying that there was due the plaintiff “ the sum of two thousand dollars, on said notes,’’ and leay-ing the allegations of the petition undenied, whereupon the plaintiff filed his replication admitting the allegations of the answer; Held,</p> <p>1. That the answer showed no substantial defense to the action, and that the objection could be taken by demurrer or by a motion to strike it from the files.</p> <p>2. That as there was no issue made up by the pleadings, the court did not err in refusing a jury trial, and in rendering a judgment for the amount due to the plaintiff.</p> <p>2. Practice. This court will not reverse a judgment for the reason the cause was taken up and tried in the court below out of its order, when it is not shown that the appellant was prejudiced thereby.</p>

<p> Appeal from Dallas District Court. </p> <p>Replevin for a horse, alleged to be of the value of one hundred dollars. The cause was tried before a justice of the peace, and judgment rendered for the plaintiff. On appeal to the District Court, the right of property in the horse was found to be in the plaintiff. On the trial exception was taken by the defendant to the charge of the court to the jury, and to the refusal of the court to set aside the verdict and grant a new trial. All the evidence given to the jury, as well as the charge of the court, are embodied in a bill of exceptions taken by defendant.</p> <p>The defense was that defendant had purchased the horse from one Brenton as the agent of plaintiff, and had executed his promissory note therefor, for $105, payable to plaintiff, in six months with interest. The plaintiff in reply denied that Brenton was her agent to sell the horse as alleged, and denied that she had received the note mentioned, or any consideration for the horse. On the trial, Allen, a witness, testified that “ plaintiff said she had let Brenton have the horse to sell, or to buy himself, if he wanted him. I wished to try the horse; the plaintiff said if I would go to Brenton, she thought I could get the horse on time of Brenton. If I would go, I could get him so far as she was concerned.” Mrs. Shephard, another witness, testified that she had a conversation with the plaintiff, in which she said that, “ Brenton had sold the horse; that he did not get the money, but had received the note, and it would be good when it come.”</p> <p>The court charged the jury, that “ if the defendant justified his possession by virtue of a purchase from the agent of tbe plaintiff having authority to sell, he must show that the agent in making the sale complied substantially Avith the authority conferred. That an authority to sell the horse did not confer upon the agent authority to sell him upon time, and if the defendant in justification shows simply an authority to sell, he must in addition show that the sale was for cash; and it is not sufficient to show a sale upon time.” Judgment for plaintiff, and defendant appeals.</p> <p>contended that an agent may sell the property of his principal upon a reasonable credit, when he is not restrained by his instructions or by the usages of trade in the place where the property is sold; and in support of this proposition, cited Goodenow v. Tyler, 7 Mass. 36; Smith’s Mer. Law. 141; and Hapgood v. Bachellor, 4 Met. 576.</p> <p>argued that a special agent cannot sell the property of his principal intrusted to him for salé, on a credit, unless authorized so to do by the usages of trade, or by instructions from the principal, citing Story on Sales, section 70; Story on Agency, sections 77 and 126.</p>

<p> Appeal from Winnesheile District Court. </p> <p>Right. Botb parties claim under one Bullís — the plaintiff under a purchase at sheriff’s sale, the defendant by deed from the execution defendant. To maintain his title, plaintiff gave in evidence a deed from the sheriff. It was admitted that judgments were rendered against Bullís at the time and for the sums in said deed specified, that no execution upon either of the judgments could be found, and that the records do not show the issuing, nor return of any such writ, nor any amount credited on such judgment. The plaintiff offered to prove by parol, that execution had been issued— that a sale of the premises was in fact made by the sheriff at the time the sheriff’s deed mentions, and that Bullís was</p> <p>present and made no objection to the same. This testimony was objected to on the ground that it was irrelevant, and because the issuing of an execution could only be proved by the record, and that any omissiom therein could not be supplied by parol. The objection was sustained and the testimony excluded.</p> <p>One Yanpelt was the sheriff conducting the sale. He gave to the purchaser a certificate thereof, referring to the judgments — by name and description — to the execution, and reciting that if defendant (Bullis) failed to redeem, the holder would be entitled to a deed. Smith succeeded Yanpelt in the office of sheriff, and made the deed, which refers to the certificate and recites the judgments. On the trial the plaintiff offered this certificate in evidence. It was objected to, first, that it did not appear that any executions were ever issued upon said judgment; and second, because the certifi-. cate and deed wore signed by different persons. Both of these objections were sustained and the testimony excluded.</p> <p>Plaintiff also proposed to prove that defendant, when he purchased of Bullis, had actual notice of the purchase by plaintiff at sheriff’s sale.</p> <p>This testimony was objected to and the objection sustained. Judgment for defendant, and plaintiff appeals.</p> <p>I. The sheriff’s deed was evidence of the regularity of all prior proceedings. Code, section 1948. It was not necessary to prove Bullis’ title. The defendant is estopped from denying it. 2 Greenl. Ev. sections 805 and 307; Whitside v. Jackson, 1 Wend. 418; Jackson v. Walker, 7 Cow. 0. 37; Jackson v. Norris, lb. 717.</p> <p>II. The judgment against Bullis, the fact that no execution thereon can be found among the files of the court, and that the records do not show that an execution was issued or returned, being admitted, it is competent for plaintiff to prove by parol, the existence of an execution. The title of a purchaser at a judicial sale does not depend upon the clerk’s entry in the judgment docket of the date of the issuing of an execution. Young v. Dugan, 1 G-. Greene 152; Humphrey v. Beeson, lb. 199 ; Hopping v. Burnam, 2 lb. 39; Doe v. Heath, 2 Blackf. 156; Billets’ Hxrs. v. Winston, 1 Mumf. 269.</p> <p>Executions are not records until returned. 1 Greenl. Ev. section 521; 9 John. 287. If an execution is lost, secondary evidence may be admitted to show both its existence and its contents. 1 Greenl. Ev. section 509 and 521.</p> <p>HE. A sheriff may execute a deed of lands sold on execution by his predecessor. MeElmarry v. Aráis, 3 Strobhart 212; Code of 1851, section 1946.</p> <p>IY. The court erred in refusing to allow proof of the sale by the sheriff, and of Bullis’ presence and neglect to remonstrate or object. These facts proved, with the admissions of the judgments of record against him, estop him and all persons claiming under him from denying the sheriff’s authority, or the execution in his hands. 8 Barb. 102; 12 lb. 128, 185 and 137.</p> <p>[No brief on file.]</p>

Plaintiff sues upon a judgment rendered in 1854 by tlie Court of Common Pleas of Hamilton County, Ohio.

The District Court in the 5th Judicial District adopted certain rules of practice, of which two are, in substance, as follows: “68'. The clerk shall file and docket the transcripts of all appeals from justices, &c., marking on them the time of filing, and if the docket fee be not paid prior to the opening of the court on the first day of the term, the appellee, on motion therefor, shall have the judgment of the court below affirmed, with costs. “ 69.

Replevin for a colt, trial and verdict for plaintiff, and defendant appealed. From the bill of exceptions it appears that the cause being submitted to the jury late in the evening, the parties agreed in open court, that if the jury agreed upon a verdict before the opening of the court on the next morning, they might seal it and deliver it to the clerk.

<p>1. Judgment in vacation, where issue was joined in term time, and judgment entered in vacation, held, that the reading, approving and signing the judgment entry at the next term of the court did not render it valid.</p> <p>2. Code construed. Section 1578 of the Code of 1851, applies only to entries authorized to he made in vacation.</p>

<p> Appeal from, Johnson District Court. </p>

Tbe petition was for an injunction to stay tbe buildiiig of a court bouse in accordance with a contract made, and tbe issuance of county bonds tberefor. The petitioners, Wells S. Rice, Gr. W. Woodbury, Reuben H. Webster, Henry Anson, and H. C. Henderson, represent that they are citizens, voters, and tax-payers of the county of Marshall, and resident in, and property holders in the town of Marshall, in said county, and largely interested in the matters set forth in the bill.

Judgment by confession, on a promissory note. The statement under oath upon which judgment was rendered, described the note and recited that “said note was given in good faith for a debt justly due said Kennedy, and is unpaid, and this confession of judgment is given without fraud.” The defendant appeals.

Appeal from Decatur District Court. The facts necessary to an understanding of this case, are presented in the opinion. cited 1 Greenl. Ev. sec. 880 ; 2 Russell on Crimes 963-965; 1 G. Greene 320-323; 5 Iowa 465.

<p> Appeal from Mills District Court. </p>

Bill in equity to set aside a certificate of a swamp land pre-emption.

The material facts are stated in the opinion of the court. argued that as defendant’s answer shows a conversion of the property of plaintiff, an allegation in the petition of demand was unnecessary. ’ Any use, or disposition of property inconsistent with the rights of the owner, is a conversion. 10 John. 172; 1 Bailey 546.

<p>1. Action on judgment : parties. wiien a judgment was rendered in a foreign court against two defendants as copartners, and an action was brought in the courts of this State on the judgment against one of the defendants only, it was held that as the petition did not show that both parties were living and within the jurisdiction of the court, the action could be sustained, woodward, J. dissenting.</p> <p>2. Pleading: allegation. In an action on a foreign judgment it is not necessary to allege in the petition that such judgment is in “ full force and virtue.” It is sufficient to allege that the amount claimed is due thereon.</p> <p>3. .Same. In an action on a promissory note payable to the plaintiff, or on a judgment recovered in his name, it is not necessary to allege that the demand sued on is his property.</p>

ON the application of J. B. Chapman and others, to the county court of Polk county, a commissioner was appointed to examine and report to said court, as to the expediency of a proposed road in said county. The commissioners having-reported in favor of the establishment of said road, the court appointed a day when the matter would he acted upon.

The plaintiff sued before a justice of the peace to recover back an amount of the school tax paid to, and collected by the defendant, as secretary of the district, and which is alleged to be illegally assessed. The justice rendered judgment for the plaintiff, and the defendant appealed to the District Court. Before the justice the defendant made default, filing no answer and making no defense. An execution was issued and returned satisfied before the appeal was taken.