WErm UNIVERSIiY ' OF CALIFORNIA LOS ANGELES -, Wft....<.Mlrf^ Mim LAWUl 3RARY j\ % WH^^^^mmw^ LM.J/ J\ »UNIVER5y^ ^:^ •r?]]ONVsoi^ • '^^/sm: ' o iyw^^m 4'^r,i\i\n.][\ vi')-!r\jn\n..i(\- PCAL1F0% //).! XlVAKin.'VN REPORTS CASES IN LAW AND EQUITY, DETERMINED IN THE SUPREME COURT OF THE STATE OF IOWA. GEORGE 6KEENE, OKE OF TUE JUDGES. VOL. IL CHICAGO : T. H. FLOOD AND COMPANY. 1892. c Entered according to Act of Congress, in the year One Thousand Eight Hundred and Fifty-Two, by George Greene, in the ClerF^ Office of the District Court of the United States, in and for the district of Iowa. JJuUge of tfje 5Eniteli States IBistrict CEourt, for Eoiiia, Hoxx. JOHN J. DYER. WiniUti States ©istrtct ^Ittorneg, STEPHEN WHICHER. Clerlt of tljE Winittti States ©istrtct dourt, THEODORE S. PARVIN. SEniteti States i$lars!)al, STEPHEN B. SHELLEDAY. 3futiges of District Courts DURING THE PERIOD OF THIS VOLUME. Fv'st District. Hon. GEORGE H. WILLIAMS. Second District. Hon. JAMES GRANT. Third District. Hon. CYRUS OLNEY. Fourth District. Hon. JAMES P. CARLETON. Fifth District. Hon. WILLIAM McKAY. r.ff '-tow Jutigcs of tljE Suprrme CCourt. Hon. JOSEPH WILLIAMS, Chief-Justice. Hon. JOHN F. KINNEY, Judge, Hon. GEORGE GREENE, Judge. O r- rAom Chambers, Diltz v. . . 479 Abbee v. Higgins, . , . 535 „ V. Games, . 320 Albright, Roberts «. , . 120 „ State V. . . 308 „ Wilson V. . , . 125 Chapman, Bush v. , . 649 Alexander, Price v. . . 427 „ V. Morgan, . 874 n Rogers v. , . 237 Chittenden, Baraey «, . 165 »> ^ » ^ ' . 443 Clark, Wright v. . 86 Arnold c Grimes, . . 77 Coffin V. Knott, . 682 Austin «. Carpenter, . 131 Cole, Graves v. . . 467 Conly, Fletcher v. , - 88 B Cooley, Phillips v. , , . 456 Coonrod v. Benson, . . 179 Bagley, Rigga v. , , . 383 Coriiell v. Doolittle, . 385 Baird, Pierson v. . . 235 Crookshank v. Mallory, . . 257 Baker v. Harrow, . . 201 Cuddleback v. Parks, . 148 Barber, Taylor v. . 350 Culver V. Whipple, . 365 Barney v. Cliittenden, , . 165 Curtis, Davis v. . 575 Bates, Daniels t7. . 151 Bennett, Hall v. . 466 D Benson, Coonrod v. . , . 179 Bissell, Smith v. . 379 Daniels v. Bates, . , . 151 Bonney v. Van Buren Co. , . 230 „ Durham v. . , , 618 Boon V. Wright, . 458 „ Preston v. , . 537 Boyle, Cameron v. . . 154 Darling v. MeachuTB, . 602 Bi-adley v. Kennedy, . 231 Daugherty, Olive «. . , . 393 V. Me Call, . . 214 Davis V. Curtis, . 675 Brown v. Harris, . 505 „ Depew V. . 260 „ V. Holleubeck, . 318 „ V. Fish, . . 447 „ V. Tomlinson, . 625 „ Co., Steele. . . 469 „ n. Scott, . 454 De France «;. Spencer, . 462 Buckley v. State . 162 De Louis v. Meek, . 55 Burlerson, Knott v. . . 600 Depew V. Davis, . 260 „ V. Teeple, . 642 Dickerson v. Shelby, . 460 Burnam, Hopping v. . 39 Diltz V. Chambers, . . 47rt Bush V. Chapman, . . 549 „ V. Graft, . . 571 Dixon, Rickner v. . . 691 c Doolittle, Corriell c. . 385 Drebilbis v. Hutton, . 693 Cadle, State v. . . 400 Durham v. Daniels, . 518 Cameron v. Boyle, . . 154 Carpenter, Austin v. . 132 E Caruthers v. Van Hagan, . 481 Casey, Fitch v. . SOO Edwards, Steinhelber tu . 366 Cass V. State, . . 353 Ellis V. Mosier, . 247 Gassaday, Lucas v, . . 208 Ely, Greene & Brothers «. . 508 VI CASES KEPORTED. Ely, Mix V. Ex parte, Hampton v. PAas 513 137 Fish, Davis v. . . , 447 Fitch V. Casey, . . 30C Fletcher v. Conly, . . 88 Forsyth & Co. v. Ripley, . 181 Frentress v. Markle, 553 Fulweider v. Peterkin, 622 Fulweiler v. Siuger, 372 Gt Galloway v. Trout, . 695 Games, Chambers v. 320 „ V. Mannmg, . 251 Garretson, Mears v. . 316 Gaveny v. Hiutoii, . 344 Goodwin v. Thompson, . 329 Gordon v. Mounts, . 243 „ Shaw V. 876 Grable v. State, 559 Graft V. Diltz, 570 Graves v. Cole, 467 Gray, Nelson v. 397 Greeue & Brothers v. Ely, 608 Greenough v. Wigginton, 435 Grimes, Arnold v. . . 77 Hall V. Bennett, , . . 466 „ V. Washington Co., . . 473 Hampton v. Ex parte, . . 137 Harlan v. Moriarty, . 486 Harriman v. State, . ■ . 270 Harris, Brown v. . 605 Harrow v. Baker, . . 201 Hedinger v. Silsbee, . 363 Hicks V. Walker, . 440 Higgins, Abbee v. . Hfidreth v. Tomlinson, . 635 . 360 Hindi V. Weatherford, . 244 Hine v. Houston, . 161 Hinton, Gaveny v. . . 344 Hollinbeck, Brown v. . 318 Holmes v. State, . 601 Hopping V. Burnam, . 39 Houston, Hine v. . 161 Hoyle, Lyne v. . 135 Hughes V. Miller, . 9 ,, Wright V. . 142 Huner v. Reeves, . 190 Hutton V. Drebilbis, . 593 .Tacobson v. Manning, Jamison v. Reid, Jefferson Co. v. Savory, Johnson, Strawser v. Kennedy, Bradley v, Kerr v. Leighton, Kimble v. Riggin, Knott V. Burlerson, „ Coffin V. Lauman, Warburton v. Leighton, Kerr v. Levins v. Sleator, Lewis V. Parker „ V. Sutliff, Livermore, Shaw v. Lloyd V. McCkire, Lucas V. Cassaday, „ V. Snyder, » v. „ Lyne v. Hoyle, M Mackenzie, McMullin v. Mallory, Crookshank v. Manning, Games ». . ,, Jacobson v. Markle v. Frentress, Marsh, Wright v. , Marshall v. Marshall, Marshman, Richards v. Matherson, Wile v, McCall, Bradley v. . McCasky v. School District, McClure, Lloyd v. . McMullin V. Mackenzie, Meachum, Darling v. Mears v. GaiTCtson, . Meek, De Louis v. , Millard v. Singer . Miller, Hughes v. „ Roberts v. . Mix V. Ely, Morgan, Chapman v, Moriarty, Harlan v. . „ Robinson v, Mosier, Ellis v. Mounts, Gordon v. , Mourer, Zerfing v. Mullin V. Mackenzie, 685 394 238 373 CASES REPORTED. vu PAOK Murphy v. Reed, , . 669 „ Reed v. , . 574 „ Walsh V. • . 227 N Nash V. State, Nelson v. Gray, Ogilve & Co. V. Viele, Olive V. Daugherty, Parker, Lewis ». . , . Parks, Cuddleback v, , Parris v. State, , . , Patterson v. State of Indiana, . Peterkin, Fulweider v. Phillips V. Cooley, . „ Wright V. . . , Pierson v. Baird, „ Rife V, . . . Preston v. Daniels . Price & Co. v. Alexander & Co., B 286 397 826 893 811 148 449 492 622 456 191 235 129 636 427 Reed *. Murphy, . 668 » *'• »» • • . 674 Reeves, Huner •. . 190 „ V. Royal, . 451 Reid, Jamison v. . 394 „ V. Wright . 16 Richards v. Marshman, . . 217 Richman v. State, . 532 Rickner v. Dixon, . 691 Rife V. Pierson, . 129 Riggin, Kimble v. . . 245 Riggs V. Bagley, . 383 Ripley, Forsyth & Co. r. . 182 Roberts v. Albright, . 120 ,, V. Miller, . . 122 Robinson v. Moriarty, . 497 Rogers v. Alexander, . 237 M '"• » . 443 Ross, Wright v. , . 266 Royal, Reeves v. . 461 s Savory, JefiFerson Co. r. . 238 School District, McCasky 9. . 482 Scott V. Brown, . 454 ,, V. Sweet, . 224 Shaffer v. Trimble, . . 464 Shaw V. Gordon, PAoa 376 „ V. Sweeney, 687 „ V. Livermore, 338 „ Steamer "Lake of the Woods "v. 91 Shelby, Dickerson v. 460 Shoemak, Wiley v. , 205 Silsbee, Hedinger v. 3(53 Singer v. Fulweiler, 372 ,, Millard v. . . . 144 Sleator v. Levins, . 605 Smith V. Bissell, •67d Snyder, Lucas v. . . . 490 » „ V, . . , 499 Spencer, De France ». 462 Springer v. Stewart, 390 State, Buckley »• . . . 162 State V. Cadle, 400 „ V. Cass, 353 ,, V. Chambers, . •^08 „ Grable v. . . . 559 „ Harrimaa v. . 270 „ Holmes v. . . , 501 „ of Indiana, Patterson v. . 492 „ Nash V. ... 286 „ Parris v. ... 449 „ Richman 9. . . . 532 „ Trimble v. . . . 404 Steamer " Lake of the Woods " V. Shaw, .... 91 Steel V. Davis Co. 469 Steinhelber v. Edwards, . 366 Stewart, Springer v. 390 Strawser r. Johnson, 373 Sutliff, Lewis r. , . . 186 Sweeney, Shaw ». . , . 587 Sweet, Scott v. . . . 224 T Tayorr. Barber, . . 350 Teeple, Burlerson r. 543 Thompson, Goodwin V« • 329 Tomliuson, Brown v. , 525 „ Hildreth* . 3iiC Trimble v. State, . . 404 Trout, Galloway r. 695 V Van Buren Co., Bonney». 230 "Van Hagan, Carothers V, 481 Viele V. Ogxlvie & Co., . 326 w Walker, Hicks v. . . , 440 Walsh V. Murphy . , 227 Waiburton v. Lauman, . 420 VIU CASES REPOETED. PAGB PAOB Washington Co., Hall v. . . 473 Wright V. Hughes, . . . 142 Watkins, Wright v. . 547 V, Marsh, . , . 94 Weatherford, Hiuch v. . 244 V. Phillips, . • . 191 Westbrook v. Westbrook, . 598 Eeed v. , . . 15 Wigginton, Greenough v. . 435 V. Ross, . , . 266 Whipple, Culver v. . 365 V. Watkins, • . 647 Wile V. Matherson, , . 184 Wiley V. Shoemak, . . 205 Wilson V. Albright, • . 125 z Wright V. Boon, . • . 458 „ V. Clark, . , • 86 Zerfiing V. Mourer, • • . 620 CASES IN LAW AND EQUITY. DETERMINED IN THB SUPREME COURT OF THE STATE OF IOWA, BURLINGTON, MAY TERM, A.D. 1849, In the Third Year of ilie State. Hon. JOSEPH WILLIAMS, Chiej Justice. Hon. JOHN V KINNEY, ) j i Hon. GEO. GREENE, \ •'""^«*- ->•«• < HUGHES V. MILLER, When a nonsuit or default is set aside, notice must be served on the party at least six days before the new trial. But this notice may be waived by general appearance of the party. Party cannot object to defective notice after he consents to have a jury called. A jndg-ment Ijy default for costs may be set aside and the entire case re» adjudicated. A trial of the riarht of property cannot be had, under the statute, after tlia property has been sold and possession passed to a third person, by virtue of legal process. In a proceeding to try the right of property taken on execution, a judgment by default against the claimant will authorize the officer to proceed with the sale. Error to Lee District Court. Opinion hy Williams, C. J. This action was instituted by James Miller, by his a<^ent, W. M. Andrews, againsb Vol. IL 2 10 SUPREME COURT CARES, Hughes V. Miller. Ross B. Hiiglies, under the provisions of the statute for the trial of the right of property seized under execution. Rev. Stat, 331. The facts of the case are briefly set forth in an agree- ment of the attorneys and the bill of exceptions. The agreement of the attorneys is as follows : " It is agreed to admit on this trial as evidence, that there was a judgment on the docket of Zadock Smith, a justice of the peace of Lee county, in favor of Ross B. Hughes and against William M. Andrews, on which exe- cution issued and was levied upon the buggy in dispute. That claimant Miller on his trial was nonsuited, as men- tioned in the justice's transcript. That on the 6th day of March, 1847, the said nonsuit was ordered, and on the 8th day of March, 1847, the buggy was sold under the levy aforesaid to Callowhill E. Stone, and possession given by the constable; and that on the 11th of March, 1847, non- suit was set aside and a new trial granted, as set forth ir said transcript." April 29, 1848. The first error complained of in the proceedings below, is, that " the summons issued by the justice was not served six days before the retm-n day thereof, as required by the statute." Among other proceedings copied into the bill of excep- tions, is the constable's return as endorsed on the sum- mons. By the return it appears that the service was made by the constable on the loth day of March, 1847, and the day appointed for the trial of the cause, as speci- fied in the summons, was the 20th day of March, 1847. This state of facts as to the service, gives the defendant at the utmost but five days' notice. The statute prescribing the mode of procedure to be observed by justices of the peace in case of nonsuit and judgment by default, where such nonsuit or default is set aside and a new trial granted, requires notice to the opposite j^arty of the setting aside thereof, and that " the notice shall be served on the i)arty or his agent six days before the trial, upon rehearing of the lause." This service is therefore defective, and the objec- BURLINGTON, MAY, 1849. 11 Huj^hes V. Miller. iion tc \i would prevail had not the party makii.g it, by his own act, waived it. The record shows that the defend- ant appeared on the 20th of March, 1847, the day set for rehearing, and by his attorney demanded a jury trial ; and that accordingly, a jury was called before the justice, in -•.>f /.ler to a full trial on the merits. The forms of pleading, as observed and required in the practice of the district court, are not necessary in trials before justices of the peace. After the commencement of a suit before a justice of the peace, the proceedings of the parties may be, and mostly are, oral. A proper entry of the material and important motions and acts of the parties concerned, is made in the docket of the justice, for the benefit of the parties in the legal adjustment of their rights. Here the record of the justice shows that, in obedience to the sum- mons, and service thereof, the party appeared, and by his attorney consented to proceed to a trial of the cause by jury ; that, after so consenting, he sought to take advantage of the defect in the service of the summons. This he could not do. If he sought to avail himself of this objec- tion, he should have done so before he consented to, or requested the calling of, a jury. He might have appeared specially to object to the service, and then, upon doing so, if his objection was overruled, he might have stood on the defense, yielding no consent or acquiescence ; and thus avoided a waive of the defect in service. Conley v. Good^ Breese, 96; Gun v. Wheeler, 1 Scam., 555. Having con- sented, and elected to go to the jury with his case, he was bound by such election. His objection was too late. He had waived it. The second error assigned is, that " after judgment by default had been entered by the justice for costs of suit, he reversed his judgment, and re-adjudicated the case by granting a new trial. * The Rev. Stat., 324, § 3, authorizes the justice, in case of nonsuit or default, to open the case anew upon a proper showing of the party, within a speci- lied time, according to the provisions of the statute. The record of the justice shows no error in this proceeding. 12 SUPREME COURT CASES, Hughes V. Miller. The adjudication of tlie district court therein furnishes no ground of complaint for error here. The third error assigned is, the refusal of the court to give the instruction to the jury which was asked for by the defendant's counsel, which, as appears by the bill of exceptions, was as follows : The defendant asks the court to instruct the jury " that no trial of the right of property could take place between the parties to this suit, after the property had been sold upon legal process and passed to a third person, the pur- chaser;" which instruction was refused by the court, and an exception taken by defendant's counsel. This provision is, by virtue of statutory provision, en- acted for the protection of those who might be aggrieved by the officers of the law, seizing under execution process, their property, as the property of defendants, parties in the action and judgment upon which such execution had been issued. This proceeding, as the record shows, having been commenced by the plaintiff against the plaintiff in the execution, and in pursuance of the provisions of the statute, the constable and the execution plaintiff were duly notified of the plaintiff's claim to the property levied on. On the day set for the hearing, the plaintiff was nonsuited, and judgment was entered against him for the costs of suit. The property being a buggy, was in the possession of the constable by virtue of the levy made pre- viously, and of course liable to sale to satisfy the judgment upon which the execution had issued, in the event of the claimant failing to make good his claim by judgment in his ftivor, in the proceeding under the statute. After the nonsuit, which was entered on the 6th day of March, 1847, and, on the 8th day, the same month, the constable, in obedience to the mandate of the execution, proceeded and sold the property to one Callowhill E. Stone, into whose possession it was then delivered. On the 11th day of the same month, the nonsuit was set aside, and a new trial granted by the justice at the instance of the claimant. The question here presented for adjudica- BURLINGTON, MAt, 1849. 13 Hughes V. Miller. tion, is this : Did the property claimed by the plaintiff in this action continue to be subject to legal restraint in the hands of the constable, who held it by virtue of the exe- cution and levy thereon, after the nonsuit and judgmcM it for costs, so as to prevent the officer from proceeding to sell it ? And did the renewing of the suit, by taking oil the nonsuit, render the lien on the property good by reviv- ing it, as it was at the commencement of the action ? The constable was bound by the requirements of the statute, which prescribes the duties of such officer, when the execution is put into his hands, to proceed promptly to make the money of the defendant by levy, on his goods and chattels. Upon making the levy, he is du-ected to advertise the property and sell it within a time certain, and to make his return to the justice. The claimant of the jjroperty, having availed himself of the provisions of the act of the legislatm'e by notifying the constable of his claim, and the suit having been commenced thereon before the justice, further proceeding under the execution and levy was by law suspended until the termination of the trial of the right of property, (Rev. Stat., 332, § 11,) until the claim of the plaintiff in that proceeding should be *' abated, dismissed, or a final decision had thereon." The record shows that the constable did not proceed to sell the property until after the action had been disposed of by a nonsuit, and judgment for costs had been entered. Two days afterward he sold the property on the execution, and delivered possession thereof to the purchaser. This he liad a right to do. The proceeding by which he had been restrained from selling the property levied on execution, was legally at an end, and the obligations of official duty were upon him. He was not bound to wait until the claim- ant might, at the last moment allowed by law, have the judgment of nonsuit set aside and his action recommenced. In a proceeding like this, the party seeking the benefit of the statute must be vigilant, and act with due regard for the rights of others interested, and the s})irit of the law. The statute providing for the trial of the right of property, 14 SUPREME COURT CASES, Huffhes V. Miller. in terms not to be misconstrued, inculcates prompt and speedy action in the adjustment of the rights of the parties. By the entry of the judgment of nonsuit, the claimant was as much out of court, and his proceeding concluded, as if he had not commenced his action. This was the conse- quence of his own default, and it was his neglect, in not promptly recommencing his action, or opening the judg- ment of nonsuit, which left the property to be disposed of by the exemption process, and thus pass from the posses- sion of the constable : when delivered to the purchaser, it was beyond the reach of the claim of the plaintiff under the provisions of this statute. In view of the spirit of the law, we can see no difference between the determination of the suit by abatement or dismissal, and default or nonsuit. In either case the party might commence again. The statute only holds the property in duress, and restrains the constable from selling, until the termination of the suit by claimant. There could be no certainty that the party claimant would renew the proceeding, more than there was that he might resort to some other mode of redress. In a proceeding like this, interfering with the ordinary process of law, involving the obligations of ministerial officers of the law, and the rights of parties in legal action, strict compliance with the statute, and a vigilant observ- ance of the spirit of the law, should be inculcated. We are of opinion, therefore, that the court below erred in refusing the instruction which was asked for by the defendant's counsel. Judgment reversed, Geo. C. Dixon, for the plaintiff in error, J. A. C. Hall, for defendant. BURLINGTON, MAY, 1849. 15 Reed v. ^Vriirht. REED V. WRIGHT. It is the riiflit and duty of the judicial power in the state to declare all acts of the legislature, made in violation of the constitution, to he void. The legislature of Wisconsin territory could not curtail rights conferred, nor confer rights withheld, hy the ordinance of 1787. Legislation in derogation of trial by jury, and by proceedings according to the course of the common law, is in conflict with that ordinance, and therefore void. An act of the legislature of the territory of Wisconsin, entitled " An act for the partition of the half-breed land, and for other purposes," approved January 16, 1838, and an act supplementary thereto, approved June 22, 1838, and also an act passed by the Iowa legislature, approved January 2,';, 1839, to repeal both of said acts, are repugnant to the ordinance of 1787, and also to the organic law of Wisconsin and Iowa, and are therefore void. So also are judgments rendered by virtue of said laws. Void judgments are never binding, but judgments merely voidable may be enforced until reversed by a superior authority. Judgments from courts of general jurisdiction cannot be collaterally im- peached, unless absolutely void upon their face. In an action of right, the piaintitl" must recover upon the strength and validity of liia own title, and should show a valid subsisting interest in the land. No such interest can accrue from a void judgment. Error to Lee District Court. Opinion hi Kinney, J. This was an action of right, brought in the district court of Lee county, by the plain- tiff against the defendant to recover the south-east quarter of section 2, in township 65 north, and range 5 west, within the tract of land known as the half-breed Sac and Fox reservation, in Lee county. On the trial of the cause, the plaintiff in error having proved the defendant in possession of the land in contro- versy at the time of the commencement of the suit, for the purpose of showing title to the land, offered in evidence : First, the treaty between the United States and the Sac and Fox tribes of Indians, of date August 4, 1824, making a reservation of lands for the use of the half-breeds of said tribes of Indians. Also, an act of Congress, approved June 30, 1 834, en- 16 SUPREME COURT CASES, Eeed v. Wright. titled " An act to relinquish the reversionary interest of the United States in a certain Indian reservation lying between the rivers Mississippi and Des Moines." Also an act of the territorial legislature of Wisconsin, approved January 16, 1838, entitled "An act for the partition of the half-breed lands and for other purposes." Also an act of the territory of Wisconsin, approved June 22, 1838, entitled " An act supplementary to an act, entitled An act for the partition of the half-breed lands, and for other purposes." Also an act of the territorial legislature of Iowa, approved January 25, 1839, entitled " An act to repeal an act of the Wisconsin legislature, entitled An act for the partition of the half-breed lands, and for other purposes," and an act supplementary thereto, approved June 22, 1838; which said laws, and the treaty afore- said, were read to the jury, and embodied into, and made part of the bill of exceptions. The plaintiff also offered two judgments, under and by virtue of the act of the Iowa legislature, and the executions and returns thereon. The Wisconsin act, repealed by the Iowa act, after re- citing that it is expedient, in order to the settlement of the half-breed tract, and the validity of the titles of the claim- ants should be determined, and that partition of said lands among those having claims should be made, or a sale thereof for the benefit of such valid claimants, enacts that all persons claiming any interest in said lands, under said treaty and act of Congress, are required, within one year from the passing of the act, to file with the clerk of the district court of the count} jf Lee, Wisconsin territory, a written notice of their respective claims, designating the half-breed under whom they claim, and the extent of their claims, which notice was requu'ed to be accompanied with a true copy of all the title papers and deeds relating to the rights therein set forth. Section 2 provides that Edward Johnston, David Brig- ham and Thomas S. Wilson shall be commissioners for the purpose of taking and receiving the testimony concerning BURLINGTON, MAY, 1849. 17 Reed v. Wright. the validity of claims presented and filed, each of whom is to receive six dollars per day for his services. Section 1 1 provides that all persons claiming any in- terest in said lands under said treaty and act of Congress, who shall not file their chiims as required by the statute, shall be for ever barred frimi setting up any right in said lands, or in the proceeds of the sale thereof, &c. Section 12 appoints certain commissioners with powers, under the order and direction of the com^t of Lee county, to make sale, &c., of the land. The act of the Iowa legislature offered in evidence, after repealing in § 1 the foregoing act, provides that the several commissioners appointed under that act to sit and take testimony may immediately, or as soon as convenient, commence action before the district court of Lee county for the several accounts against the owners of the said half-breed lands, and give eight weeks' notice in the '' Iowa Territorial Gazette" to said owners, of such suit; and the judge of the said district court, upon the trial of such suits at its next term, shall, if said accounts are deemed correct, order judgment for the amount and costs to be entered up against said owners, and said judgment shall be a lien upon said lands and a right of redemption thereto ; and said judgment, when entered, shall di^aw interest at the rate of 12 per cent, per annum. Section 3 enacts, that the word " owners " of the half- breed lands lying in Lee countv shall be a sufficient designation in said suits. Section 4 provides, that all the expenses necessarily in- curred by said commissioners in the discharge of their duties under said act, shall be included in the accounts. Section 5, that the trial of said suit or suits shall be before the court, and not by jury, and that the act shall receive a liberal construction, &c. The judgments offered in evidence, obtained by virtue of said act of the legislature of the territory of Iowa, are as follows: "And afterwards, on the 30th day of August in the year 1839, the auditor ap})ointed to examine and 18 SUPREME COURT CASES, Keed v. Wright. report in tlie case of David Brigham v. The Owners of the half-breed lands, having examined witnesses, &c., reports as follows, to wit : That David Brigham is entitled to receive from the owners of the half-breed lands the sum of $818 ; all of which is respectfully submitted. Oliver Weld, Auditor.'*^ Whereupon the court accepted the said report, and ordered that the plaintiff recover of the said defendants the sum of $818, the amount stated in the auditor's report, and costs in this behalf expended. And in the case of Edward Johnston v. The Owners of the half-breed lands lying in Lee county, the report and judgment are as follows : Now comes the auditor appointed by the court to examine, adjust, and allow the account of the plaintiff in the above entitled cause, to wit, H. T. Reid, Esq., and makes report that he finds the sum of $1290 to be due from said defendants to the said plain- tiff, which report is accepted by the court ; whereupon it is ordered by the court that the plaintiff recover of the defendants the sum of $1290, together with costs of suit, &c. The plaintiff also offered in evidence the execution issued upon the judgment in favor of Johnston, and the return thereon. The return is as follows : " December 1, 1842. Levied the within execution on the half-breed Sac and Fox reservation in Lee county, L T. , commonly called the half-breed tract. Advertised the same for sale December 1, 1842, January 1, 1843, sold the above described tract of land, bought by H. T. Reid, for the sum of twenty-eight hundred and eighty-four dollars 66-100. Seventeen hundred and sixty-two dollars 66-100 to be credited in full satisfaction of the within execution. Hawkins Tayloe, Sheriff ^ The plaintiff also offered in evidence the execution and return thereon in the case of Brigham v. The Owners of the half-breed lands, by which also it appears that, on the same day, the said sheriff sold the said reservation or tract of land to the said Reid for the same sum. BURLINGTON, MAY, 1849. 19 Reed v. Wright. The plaintiff then offered in evidence a sheriff's deed executed to him in due form on the 2d day of January, 1843, in pursuance of sales made under said executions, which embraced the land described in the declaration. The plaintiff also offered to prove that said land described in the declaration was within the half-breed tract, and part and parcel of the same, and that the same was in- cluded in the sheriffs deed, and in the said act of Congress of 30th of June, 1834. To the introduction, as evidence, to the jury, of the said judgments, executions, returns thereon and sheriff's deed, the defendant objected, and the court sustained the objec- tion, and refused to permit said evidence to go to the jury; whereupon the plaintiff excepted, and assigns the decision of the court excludins; said evidence as error. The statute regulating the action of right, provides that the plaintiff" shall only recover upon the strength and validity of his own title. Rev. Stat., 431, § 45. Having, in order to a proper understanding of this case, and the important principles involved in the decision, noticed the evidence offered by the plaintiff to sustain his action, the treaty, act of Congress, and the acts of the Wisconsin and Iowa legislatures, relied upon by him, we will examine the questions so elaborately and ably discussed in the trial. By the counsel for the defendant in error, it was con- tended that the Wisconsin and Iowa acts were unconsti- tutional, and consequently all proceedings under them absolutely void. While, upon the other hand, the uncon- Btitutionality of the acts was not only denied, but it was claimed, even if they were not constitutional, as the court rendering the judgments possessed general jurisdiction, it necessarily decided in favor of its jurisdiction, and if that was error, the party could have been relieved in an appel- late court, upon writ of error ; and that the propriety of the judgments could not be collaterally questioned. Although many points have been made in this case, those which we deem most important are : First, Were the acts of the Wisconsin and Iowa legislatures within the 20 SUPREME COURT CASES, Eeed v. Wright. power conferred upon them by Congress, and in conformity with the ordinance of 1787 ? Second, Did the district court of Lee county acquire any jurisdiction, under the Iowa act, to render the judgments which it did render ? Third, Can the judgments so rendered be collaterally impeached? And, fourth, Did the sale, under the executions issued on said judgments, pass any title to the plaintiff in error ? The Wisconsin act is based solely upon the assumption of the Wisconsin legislature, that it is expedient, in order to the settlement of the half-breed tract, &c., that titles should be investigated and partition and sales made, and upon this assumption commissioners are appointed to examine the titles, with power to administer oaths, take affidavits, issue commissions for taking depositions, issue subpoenas and other process to compel the attendance of witnesses ; and for this purpose they were clothed with as full and ample power as was possessed by the district court. The act of the Iowa legislature, although it repeals the Wisconsin act, yet it provides the manner in which the commissioners, who were appointed under that net, shall proceed to collect the amount, which the legislature pre- supposes to be due them, for services rendered in ascer- taining the titles to the half-breed lands, and therefore dependent upon the rights presumed to have accrued under the latter for its operation. While it is the duty of courts of justice studiously to ascertain the intention of the legislature, when called upon to give construction and judicial sanction to their enact- ments, and as courts have, and will with great reluctance pronounce them unconstitutional, yet the books afford abundant instances in which courts have been constrained to declare the most solemn legislative acts but gross viola- tions of the fundamental law of the land. It has accord- ingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and duty, to declare every act of the legislature BURLINGTON, MAY, 1849. 21 Eeed v, Wright. made in violation of the constitution, or of any provision of it, null and void. 1 Kent Com., 450. Under our form of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty that resides in the whole body of the people. Like other departments of the government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void. Taylor v. Porter, 4 Hill, 140. In this country, wi'itten constitutions form the basis of the general and state governments. From them, each branch derives its power, conferring on each department certain duties, restricting each within certain prescribed and limited sphere of action ; the authority thus delegated cannot be passed with impunity. The legislature, as an important integral part of the state organization, derives all its sovereignty from the consti- tution which created it. It can make laws, but cannot subvert the constitution, which is the written will of the people, the supreme hiw of the land, and all legislation must be conformabl,e with its provisions, if not, the act does not possess the least virtue or validity whatever. But as members of the legislature, in the discharge of their duties, act under an oath to support the constitution, nothing will be presumed in favor of the unconstitution- ality of a law. The violation should be clear and apparent before the act should be declared void. And to the judi- cial department of the government is entrusted the power to decide all questions of constitutional law. The act of Congress establishing the territorial govern- ment of Wisconsin, provided that the legislative power of the territory should extend to all rightful subjects of legis- lation. The act also provided that the inhabitants of said terri- tory should be entitled to and enjoy all and singular the rights, privileges and advantages granted and secured to 22 SUPREME COURT CASES, Eeed v, Wright. the people of tlie territory of the United States, north-west of the river Ohio, by the articles of compact contained in the ordinance of the government of said territory, passed on the 13th day of July, 1787, and should be subject to all the conditions, and restrictions and prohibitions in said articles of compact, imposed upon the people of said territory. By that solemn instrument it is ordained and declared, among other things, that for extending the fun- damental principles of civil and religious liberty which form the basis, wherever these republics, their laws and constitutions, are established, to fix and establish those principles as the basis of all laws, constitutions and governments which for ever shall be formed in said terri- tory, the inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpu.^^ and of a trial by jury, of a proportionate representation of *he people in the legislature, and of judicial proceedings ac cording to the course of the common law. All the legislation of the territory of Wisconsin should have been consistent with the principles engrafted into this charter of human rights and civil liberty. The legis- lature could not cm-tail any rights conferred upon the people by the ordinance, nor confer any rights withheld. The great landmarks of national liberty, trial by jury, and judicial proceedings according to the course of the common law, so wisely secm-ed to the inhabitants of the territory by the ordinance, were insuperable barriers against legislative encroachment. With the same propriety might the legislature attempt to take from the citizen the benefit of the writ oi habeas corpus as to forbid the right of trial by jury, and as well deny him religious freedom as to attempt to divest him of his property without judicial proceedings according to the course of the common law. Hence all legislation in derogation of these rights is un constitutional and void. But the ordinance of 1787 further declares, that no man shall be deprived of his liberty or property but Dy the judgment of his peers or the laws of the land. BURLINGTON, MAY, 1849. 23 Keed v. Wright. Law, Blackstone defines to be a rule, not a sudden tran- sient order fi'om a superior to, or concerning a particular person, but something permanent, uniform and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or attaint him of high treason, does not enter into the idea of a municipal law, for the opera- tion of the act is spent upon Titius only, and has no rela- tion to the community in general. It is rather a sentence than a law; and Lord Coke, in commenting upon the cele- brated 29th chap, of Magna Charta, says no man shall be deprived, &c., unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, (to speak it once for all,) by due course and process of law. The phrase, law of the land, is thus defined by an author: '' By the law of the land is most clearly intended the gene- ral law, a law which hears before it condemns, which pro- ceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, jDroperty and immunities under the protection of general rules which govern society. Everything which may pass, under the form of an enactment, is not therefore to be considered the law of the land. If this were the case, acts. of attainder, bills of pains and penalties, acts of con- fiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judg- ments, and decrees and forfeitures in all possible forms, would be the law of the land. Such a strange construc- tion would render constitutional provisions of the highest importance completely inoperative and void. The admin- istration of justice would be an empty form — an idle ceremony ; and judges would sit to execute legislative iudgments and decrees, not to declare the law, or admin- ister the justice of the country." In the case of Iloke v. Henderson, 4 Dev., 15, Chief Justice Ruffin also says, that statutes which would deprive a citizen of the rights of person or property, without a regular trial according to the course and usage of the common law, would not be the law of the land in the sense 24 SUPREME COURT CASES, Reed v. Wright. of the constitution. Judge Bronson, in the case of Taylor V. Porter^ 4 Hill, (in speaking on this subject,) says the meaning of the section there seems to be, that no member of the state shall be disfranchised or deprived of any of his I'ights or privileges unless the matter shall be adjudged against him upon trial had according to the course of the common law. Did the act of the "Wisconsin legislature seek to deprive the owners of the half-breed lands of their property by judicial proceedings according to the course of the com- mon law ? If not, the act was in conflict with the supreme law of the land, and could not have been enforced. The act apj)ointed three commissioners to examine and report to the district court of Lee county upon the titles set up to the half-breed lands. All persons owning any interest in said lands were required to file with the clerk of the district court a written notice of their respective claims. It was made the duty of the commissioners under the act to take and receive testimony concerning the validity of claims thus presented and filed, and report to the com-t the names of the owners, and the proportions to which each was entitled, &c. The act made it imperative upon the court to render judgment at the next succeeding term after filing the report in favor of the claimants, for the amounts to which they were respectively entitled, according to said report, unless exceptions were filed by the fourth day of said term. And by said act, all persons claiming any interest in said land, under the treaty and act of Con- gress, who did not file their claims as aforesaid, were for ever barred from setting up any right in said lands, or the proceeds of the sale thereof. The act also appointed certain commissioners, authorizing them, or a majority, to proceed and make sale of said lands, from time to time, according to the judgment or order of the court, to make surveys, &c. ; and they were authorized, upon the receipt of the consideration of the sales, and ratification of the re- port by the court, to execute and deliver to the purchasers proper deeds, which should be efi'ectual to vest in the re- BURLINGTON, MAY, 1849. 25 Reed v. Wright. spective purchasers the absolute title in fee simple in severality of the hinds so sold and conveyed frcj ;:nd clear of all right and claim of all persons under said treaty and act of Congress. All expense of the proceedings were required to be paid out of sales, &c. The act also provided that the jurisdiction of the said court, in the mntter referred to in said act, should be exclusive, and that no proceeding should be instituted or sustained in that or any other court, either at law or equity, under the general lam relating to the partition of lands, for the purpose of ejf'ect- ing the partition or sale of said, lands. We have no hesitation in coming to the conclusion, that this act, under which Johnston and Brigham's services were rendered in ascertaining and reporting upon the title to the half-breed lands, was a most unwarrantable assump- tion of legislative power. It proceeds upon the hypothesis that it is necessary to ascertain and settle the title to cer- tain lands. For this purpose, commissioners are appointed and clothed with most extraordinary authority. The judgment of the court upon their report is to settle the title to more than one hundred thousand acres of valu- able land, not by any proceeding according to the course of the common law, not by service of process, by which the parties could have a day in court, not by a general law of the land, operating upon the whole community alike, but by a special and limited act, violating all of these valuable safeguards. The act wrested from the court all judicial discretion, as it was required in unqualified terms to render judgment in favor of the claimants, for the amount the said commis- sioners should report them entitled to. This wonderful legislation does not stop here; but if persons who held good and valid titles to said lands did not file their claims as required by the act, they were for ever barred from setting up any right in said lands, or the proceeds of the sale thereof. All equitable and legal proceedings under the general law of partition were forbitlden. Sale commissioners were Vol. ir. 3 26 SUPEEME COURT CASES, Reed v. Wright. appointed, with full power to sell said lands, and in this manner was title to be divested and imparted. Thus, A owning a good and valid title in said lands, who neither consented to the act or proceeding, not having incurred any legal liability, if he should fail to file his claim, he would become disseized of his freehold, deprived of his estate, and all for the reason that he did not file his evidence of title. There was no public necessity for such an act. The general partition law was available for the purpose of ascertaining, and nettling the various interests of those holding titles in said lands ; and if such a pre- tence as the one assumed by the legislature for the passage of this act were a justification, then, indeed, with the same propriety might they pass an act requu'ing the owners of a particular block of lots, the title to which might be in controversy, to file their respective titles, and if either of them failed to do so, the penalty should be a forfeiture of the interest owned. The power assumed by the legislature in this act, if sustained by the courts, would lead to the most fearful consequences, as it would enable them at will, by special and limited laws, to settle aP controversies of title, and to bring about this object the property of one person coulu be taken against his consent, and given to another. In the case of Wilkinson v. Lelancl, 2 Peters, 657, Judge Story says, " that government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body without any restraint." The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred; at least no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The i)eople ought not to be presumed to part with ri2:hts so vital to their security and well-being, without very BURLINGTON, MAY, 1849. Reed v. Wriffht. stroni;- and direct expression of such intention. The power of the Wisconsin legislature was derived from Congress, which extended to all rightful subjects of legislation, and subject also to all the restrictions and provisions of the ordinance of 1778. The organic law conferred no power on the legislature to pass such an extraordinary act. In the case of Taylor v. Porter, 4 H'\\ 144, Judge Bronsou says, "we know of no case in which a legislative act to transfer the property of A to B without his consent, has ever been held a constitutional exercise of legislative power in any state in this Union. On the contrary, it has been constantly resisted, as inconsistent with just principles, by every tribunal in which it has been attemjjted to be enforced. The security of life, liberty and property lies at the foundation of the social compact, and to say that this grant of legislative power includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was estab- lished. Neither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of legislative power." Laws affecting life, liberty and property must be general in their application, operating upon the entire community alike. It is the boast and pride of our institutions that we have no favored classes ; no person so high that he does not require the care and protection of the law, no person so low as not to be entitled to them. The life, liberty and property of one citizen rest upon the same legal foundation as those of another, and if these are taken from him, it must be by a law which operates upon all alike. If it were otherwise, all would be at the mercy of legislative power, and the dearest rights of the citizen would not be worth possessing. Whatever might have been the exigencies which would seem to require an act to settle the different conflicting titles to the half-breed lands, still the legislature had no right, under the organic law and ordinance, to pass, a 28 SUPHEME COURT CASES, Reed v. Wright. special and limited act confined to a particular class of individuals, by which they were to be deprived of their property. In common with all other persons of the terri- tory, the owners of these lands could only be divested of them by judicial proceedings according to the course of the common law. It was under this act that Johnston and Brigham per- formed their services, for which the entire tract was sold, and at said sale purchased by Heid, the plaintiff in error. As in our view the act was utterly repugnant to the ordi- nance of 1787, and was not within any express power conferred upon the legislature by the act of Congress, it was unconstitutional and void, and no rights could possibly have accrued under it. Iowa, formerly constituting a part of the Wisconsin territory, passed into a separate territorial government in 1838, and the laws of Wisconsin, by the organic law, were extended over the new territory. The first legislature, by an act approved Jiinuary 25, 1839, repealed the Wisconsin act, but provided that the several commissioners appointed by said act to take testimony might immediately commence actions before the district court of Lee county, for their several accounts against the owners of the said half-breed lands, by giving eight weeks' notice in the " Iowa Terri- torial Gazette" to said owners of such suits. The judge of said court was required, if said accounts were deemed correct, to order judgment for the amounts and costs to be entered up against said owners, which was to be a lien, &c., upon said lands. This judgment was to draw interest at the rate of 1£ per cent. The statute also provides that the words, " owners of the half-breed lands lying in Lee county," should be a suffi- cient designation and specification of the defendants in said suits. The trial is required to be before the court, and not a jury. By virtue of this act, Johnston and Brigham commenced their suits against the owners, &c., as such, and not against any person by name. There does not appear to have been any appearance in com't on the part of the BURLINGTON, MAY, 1849. 29 Reed v. Wright. owners, when tlie judgments before mentioned were ren- dered, on wliicli tlie said executions were issued, and the entire tract sold by the sheriff to the plaintiif in error. Tlie unconstitutionality of the Iowa act cannot well be controverted. It is not only nugatory of itself, but pro- vides for the collcvvtion of claims which accrued under an unconstitutional law. The same act which invokes the aid of a coiu't to render judgmei:--s in favor of invalid claims, denies to those whom it constitutes defendants, the right of a trial by jury. Instead of leaving the plaintiffs to pur- sue the remedy prescribed by the law of a land, the legis- lature assumes a power not delegated to it by the law of Congress, and in direct conflict with the provisions of the ordinance of 1787, and in violation of the general laws of the territory. The suits are not brought against persons by name, but against them as owners of certain property, and on notice by publication, judgments are rendered and lands sold to a large amount. The general laws of the territory of Iowa authorized actions of debt to be prosecuted against defendants only in their proper names, and by personal service of process, and entitled them to trial by jury. The act of the Iowa legislature adjudged that the owners of the half-breed lands were indebted to the commissioners, and authorized them to sue such owners in the manner before mentioned, not by personal service, but by publication in a newspaper. The court is to ascertain of itself, and not by jmy, the amount of the indebtedness, and to enter judgment for the same, which judgment is to be a lien on said land, and di'aw 12 per cent, interest, when the general laws of the territory only authorized 6 per cent. This is not according to the law of the land. Such legislation is inconsistent with the principles of free government, for it asserts a I)Ower on the part of the legislatm-e entirely inconsistent with the liberty of the citizen. It is not within the scope of rightful legislation, for it does not profess to declare a general rule of action for the citizen, but is partial, limited and exclusive. It infringes the clause of the ordinance of 30 SUPREME COURT CASES, Reed v. Wright. 1 787, which guarantees judicial proceedings according to the course of the common law, and violates that clause of the ordinance which declares that no man shall be deprived of his liberty or property but by the judgment of his peers and the law of the land; and consequently it is utterly void. It could not confer any additional authority upon the court, it could take no power from it which it other- wise possessed. It could not rightfully create any new fjicilities for Johnston and Brigham to jDrosecute their claims, and their legal remedy was the same as if the act had not been passed; and as it was a dead letter upon the statute, no rights or immunities could accrue under it. It is necessary to determine, then, whether the court had power and jurisdiction, under the act of the Iowa legisla- ture, to enter the judgments which it did enter. It is not contended that the general laws of the territory gave the jurisdiction, or that it was conferred by anything except the said special act. This act we have shown to be uncon- stitutional and void, and it being the only act which attempts to confer authority upon the court to enter the judgments, it is necessary to inquire whether a jurisdic- tion thus conferred can be exercised, or in other words, whether an unconstitutional act can confer jurisdiction at all. In the case of Malbury v. Madison, 1 Cond., 267, Chief Justice Marshall lays down the doctrine in the fol- lowing clear, pointed and forcible language : " The question whether an act repugnant to the consti- tution can become the law of the land, is a question deeply interesting to the United States, but happily not of an in- tricacy proportioned to its interest. It seems only neces- sary to recognize certain principles supposed to have been long and well established to decide it. '' That the people have an original right to establish for their future government such principles as in their opinion shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. " The exercise of this original right is a very great exer- tion, nor can it, nor ought it to be, frequently repeated. BURLINGTON, MAY, 1849. 31 Keed V. Wi-ig-ht. The princii^les therefore so established are deemed funda- mental. And as the authority from which they proceed is su])reme, and can seldom act, they are designed to be [jcrmanent. " This original and supreme will organizes the govern- ment, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by these departments. " The government of the United States is of the latter description. The powers of the legislature are defined and limited, and that these limits may not be mistaken or for- gotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation com- mitted to writing, if these limits may at any time be passed by those intended to be restrained? The distinction be- tween a government with limited and unlimited powers is abolished, if these limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be controverted, that the constitution controls any legislative act repugnant to it, or that the legislature may alter the constitution by an ordinary act. " Between these alternatives there is no middle ground. The constitution is either a superior permanent law, un- changeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. " If the former part of the alternative be true, then a legislative act contrary to the constitution is not law. If the latter part be true, then written constitutions are ab- surd attempts on the part of the people to limit a power in its own nature illimitable. " Certainly all those who have framed written constitu- tions, contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must de, that an act of the legis- lature repugnant to the constitution is void. " This theory is essentially attached to a written consti- 32 SUPREME COURT CASES, Keed v. Wright. tution, and is consequently to be considered by the court as one of the fundamental principles of society. " If an act of the legislature repugnant to the constitu- tion is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or in other words, though it be not law, does it constitute a rule as operative as if it was law ? This would be to overthrow in fact, what was established in theory ; and would seem at first view an absurdity too gross to be insisted on. It shall , however, receive a more attentive consideration. It is emphatically the power and duty of the judicial depart- ment to say what the law is. Those who apply the rule to particular cases must of necessity expound and inter- pret that rule. If two laws conj&ict with each other, the courts must decide on the operation of each. ''So if a law be in opposition to the constitution. If both the law and the constitution apply to a particular case, so that the court must either decide the case conform- ably to the law, disregarding the constitution, or conform- ably to the constitution, disregarding the law, the court must determine which of these conflicting rules govern the case. This is of the very essence of judicial duty. " If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legis- latm-e, the constitution, and not such ordinary act, must govern the case to which they both apply. " Those then who controvert the princiiDle that the con- stitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which according to the principles and theory of our govern- ment is entirely void, is yet in practice completely obliga- tory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, BURLINGTON, MAY, 1849. 83 Reed v. Wright. with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and diiclaring that these limits may be passed at pleasure. " That it thus reduces to nothing what we have deemed of the greatest importance in political institutions, a written constitution, would of itself be sufficient (in America, where written constitutions have been viewed with so much reverence) for rejecting the constitution." But it was contended by the counsel for the plaintiff in error, that the constitutional question cannot now be raised. That the court rendering the judgments, necessarily decided in favor of the constitutionality of the act, and of its own jurisdiction, and that decision became the law of the case, and if it was error it could only have been inquired into on writ of error. From an examination of all the authorities referred to, we are satisfied that this position could not be successfully controverted, if the act by virtue of which the court rendered judgments were not void. But the act being in direct derogation of the constitution, did not confer any power upon the court to act in the premises. Hence all of its proceedings under it are not mere errors or irregularities, but absolutely void. There is a plain distinction in all books upon the subject, between judg- ments void and only voidable. The former may always be questioned when attempted to be enforced ; the latter never after the limitation of the time prescribed for testing their irregularities, in a superior or appellate court. The leading distinction between judgments and decrees void, and such as are voidable only, is, the former are binding nowhere, the latter anywhere until reversed by a superior authority. Hollingsworth v. Barhour et al., 4 Peters, 466. A party is not obliged to sue out a writ of error to reverse a void judgment. He may wait until the judg- ment is attempted to be enforced on proceedings under it, and then attack it collaterally. But with erroneous judgments it is different ; if he sleeps upon his rights, his remedy is lost. 34 SUPREME COURT CASES, Reed v. Wright. The court possessed no power under the act to make any decision either in favor of its jurisdiction or for any other purpose. It is true, it was a court of general jurisdic- tion, and had jurisdiction over the action of debt, as was contended in the argument. But the proceedings were conducted exclusively under the act, and instead of leaving the court to exercise its general jurisdiction, it was required to render judgments if the said accounts were deemed cor- rect. Its entire proceedings, as prescribed by the act, were essentially different from ordinary proceedings in actions of debt. The action of the court is based exclusively upon a void act, which is made a part of the record in this case ; and as the com't did not acquire any jurisdiction over the parties under the act, and could not rightfully enter up any judgment, the judgments are utterly void. While, therefore, it is now well settled that judgments emanating from courts of general jurisdiction cannot be impeached collaterally for error or irregularities, still judgments absolutely void upon their face, emanating from the same courts, may be so impeached. All presumptions are in favor of the former, but nothing can be presumed in favor of the latter. McComb v. Elliott, 8 S. & M., 505 ; Enos V. Smith, 7 ib., 85. The case of Voorhees v. The Bank of the United States, 10 Peters, 449, so confidently relied upon by the counsel for the plaintiff in error, we think, when properly under- stood, sustains this position and enforces this distinction. While Judge Baldwin, in delivering the opinion of the court in that case, lays down the doctrine with a perspi- cuity and power seldom surpassed in judicial decisions, that the judgment of a court of general civil jurisdiction cannot be impeached collaterally for mere errors or irregu- larities, he also says : " The errors of the court do not impair their validity : binding till reversed, any objection to their full effect must go to the authority under which they have been conducted. If not warranted by the con- stitution or law of the land, our most solemn proceedings can confer no right which is denied to any judicial act , BURLINGTON, MAY, 1849. 35 Reed v. Wright. under color of law, which can properly be deemed to have been done coram non judice, that is, by persons assuming the judicial functions in the given case, without lawful authority. The line which separates error in judgment from the usurpation of power is ivery definite, and is precisely that which denotes the case where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case it is a record purporting absolute verity, in the other mere waste paper." The decision of the court in the above case sustained the judgment of the court of common pleas of Hamilton county, Ohio ; but the court say, in speaking of the objec- tion to the proceedings, " None of them effect the jurisdic- tion of the court, or its authority to order or confirm the sale ; the acts omitted to be recited in the contract are not judicial but ministerial, to be performed by the clerks or auditors." But the learned judge cites the decision of the court in Thompson v. Tolmie, 2 Pet., 157, in which the court declare " that the general and well settled rule of law in such cases is, that when the proceedings are collaterally drawn in question, and it appears in the face of them that the subject matter was within the jurisdiction of the court, they are voidable only. The errors and irregularities, if any exist, are to be corrected by some direct proceeding, either before the same court to set them aside, or in an appellate court. If there is a total want of jurisdiction, the proceedings are void and mere nullities, and confer no right, and afford no justification, and may be rejected when collaterally drawn in question." In the case of Rose v. Jlemely, 2 Cond., 100, in which the judgment of a foreign court was collaterally attacked, Chief Justice Marshall, in delivering the opinion of the court, says : " The power of the court then is of necessity examinable to a certain extent by that tribunal which is compelled to decide whether its sentence has changed the 36 SUPREME COURT CASES, Keed v. Wright. right of property. The power under which it acts must be looked into, and its authority to decide questions which it professes to decide must be considered." He also says, *' Upon principle it would seem that the operation of every judgment must depend on tho power of the court to render that judgment, or in other words, in its jurisdiction over the subject matter which it has determined. In some cases that jurisdiction depends as well on the state of the thing, as on the constitution -^f the court." In the case of Lessee of Hicke\j et al. v. Stewart et al., 3 Howard, 750, it was insisted that the jurisdiction of the com-t over the subject matter of the decree could not be inquired into by the supreme court, nor the court below, when brought before either collaterally. The decree col- laterally assailed was rendered by the supreme court of the territory of Mississippi, decreeing certain lands to the heirs of Robert Starkie. One of the main questions before the supreme court of the United States was, whether this decree was void, the court having no jm-isdiction of the subject matter of the decree, or only erroneous and void- able. The court say, if the former, then its validity was inquirable into in the current court when offered in evidence, and it ought to have been rejected. The court decide that the court rendering the decree had no jurisdiction, and that the whole proceeding was a nullity. When a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities ; they are not voidable, but simply void, and form no bar to a remedy sought even prior to a reversal in opposition to them. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law trespassers. This distinc- tion runs through all the cases on the subject, and it proves that the jurisdiction of any court exercising authority over a subject may be inquired into in every court where BURLINGTON, MAY, 1849. 37 Reed v. Wright. the proceedings of the former are relied on and brouglit before the latter, claiming the benefit of such proceeding. Elliott et al. v. Fiersall et al., 1 Peters, 340. In the case of Shriver's Lessee v. Linn et al. , 2 How. , 43, Judge McLane, in delivering the opinion of the court, says : " No court, ho^yever great may be its dignity, can arrogate to itself the power of disposing of real estate without the forms of law. It must obtain jurisdiction of the thing in a legal mode. A decree without notice would be treated as a nullity; and so must a sale of land be treated which has been made without an order or decree of the court, though it may have ratified the sale." See also Mills v. Martin, 19 John, 7; Skelton v. Tiffin et al, 6 Howard, 163, 3 John, 457; Proctor v. Newhall, 17 Mass., 81 ; Bloom v. Burdick, 1 Hill, 130. In the last case the court declare that it is a cardinal principle in the administration of justice, that no man can be condemned or divested of his rights until he has had an opportunity of being heard. He must, either by serv- ing process, publication notice, appointing a guardian, or some other way, be brought into court; and if judgment is rendered against him before that is done, the proceedings will be as utterly void as though the court had undertaken to act when the subject matter was not within its cogniz- ance, and cites Beman v. Fitch, 15 John, 121 ; Bigelow v. Stevens, 19 ih., 39 ; Mills v. Martin, ib., 7. The court also say the distinction bttween superior and inferior courts is not of much importance in this particular case, for whenever it ajjpears that there was a want of jurisdiction, the judgment will be void in whatever court it was ren- dered. Hollingsworth v. Barbour, 4 Peters, 466. We have no hesitation, from our examination of the authorities bearing upon this important branch of the case, in assuming as the settled doctrine of the books, that judg- ments rendered without the court having acquired juris- diction either over the subject matter or the parties, are mere nullities, and may be declared void by a competent tribunal whenever attempted to be enforced. 38 SUPREME COURT CASES, Keed v. Wright. In tlie case before us, tlie want of jurisdiction over the parties api^ears upon the face of tlie proceedings. Suit is brought and judgments entered against " owners'*^ of cer- tain lands. Parties cannot be brought into court in this manner, and judgments cannot be so rendered. These judgments are void, as the court acquired no jurisdiction. Time cannot sanctify them, nor courts enforce them. For all judicial purposes thoy are as though they had not been rendered, and although the statute bars a writ of error, they neither bind nor conclude any one. But it is said that Wright, the defendant in error, can- not object to the sale, &c., he being only in possession without pretence of title. The statute regulating the proceedings in actions of right, provides that the plaintiff shall recover upon the strength and validity of his own title. Hence the plain- tiff offered the treaty, act of Congress, legislative acts, judgments, executions and returns, in evidence. This was the source from which he claimed to have derived title. If the sales upon the execution did not confer title, he could not recover, even against a stranger. In order to entitle Reid to recover under the statute, he should have a valid subsisting interest in the land. As the judgments were void, no interest whatever passed in consequence of the sales under the executions, and therefore the plaintiff could not sustain his action against any one, and the court very properly, we think, refused to permit the evidence to go to the jury. Other positions were taken by the counsel for the plain- tiff in error, besides those we have noticed. The argu- ments and authorities were presented to the consideration of the court with great power and ability. But as the case has presented itself to our minds, we have not thought it necessary to notice tliem in this decision. We have been fully iui[)ressed with the importance of this case to the plaintiff iu error, who purchased these lauds under a judicial sale, and fully felt all that reluctance BURLINGTON, MAY, 1849. 39 Hopping V. Burnam. which should ever characterize courts when they declare legislative acts unconstitutional, and judgments of courts void. Still it has been no less a duty to decide in favor of the judgment of the court below. Judgment aflfirmed. Henry W. Starr ^ C. Walker and H. T. Reidy for plain- tiff in error. Geo. C. Dixon, for the defendant. HOPPING V. BURNAM. It is not error to preclude an answer to irrelevant or immaterial evidence. When actual notice is required by statute, evidence of constructive or im- plied notice is not sufficient. Actual notice can only be communicated by express information to, or per- sonal service upon, the party interested. A defective description of land in a levy is cured by a correct description in the sheriff's deed, when it shows that the land conveyed is the same ou which the levy had been made. A mere omission or irregularity in a sherifiF's return cannot vitiate a sale made under execution, so as to invalidate the rights of a bona fide pur- chaser. SheriflTs' returns of levy, &c., not essential to title. Under the Michigan statute of 182? -n relation to conveyances, an nn- recorded deed cannot prevail against a subsequent purchaser, who had his deed recorded first. Under the registry law of 1840, no conveyance is valid except between parties thereto and such as have had actual knowledge thereof, until it is deposited for record. Deeds executed before the registry act •.•i* 1840, should be recorded under it, the same as deeds executed subsequent to the passage of the law. A judgment lien will hold against a prior unrecorded deed, without actual notice. A deed for land first filed for record, though subsequently dated, will prevail. Error to Des Moines District Court. Opinion hy Greene, J. An action of right, commenced January 16, 1846, by Joseph S. Burnam against Buckley 40 SUPREME COURT CASES, Hopping V. Burnam. C. Hopping. The suit was instituted and pleadings filed under statutory provisions. The cause was finally sub- mitted to a jury, at the April term of the district court in 1840, and a verdict returned that the plaintiff had right to the immediate possession of the premises described in the "v\Tit and declaration. A judgment was rendered accordingly. It appears of record, that the plaintiff below claimed title under a sheriff's deed, dej' ved from a judgment ren- dered June 4, 1841, in favor of Daniel Crenshaw against Jeremiah Smith. Execution issued upon this judgment December 9, 1841. The land in question was levied upon, and on the 29th of January, 1842, it was sold to the plaintiff. The deed was executed on the 23d of January, and filed for record on the 9th of March, 1842. It appears that Smith, the defendant in execution, had purchased the land from the United States on the 16th of January, 1840. Hopping, the defendant, claimed title to the land by virtue of a deed from said Smith, dated February 6, 1840; but the deed was not filed for record until March 14, 1842. The defendant also proved that he had been in actual possession of the premises, from the summer of 1839 until the spring of 1846. It will be observed that both parties claim the premises in question, under Jeremiah Smith, by whom tiie land was entered ; the plaintiff by judicial, and the defendant by voluntary sale. The principal question then to be deter- mined is, which of the conveyances under the foregoing facts is entitled to legal priority ? But as other questions were raised on the trial below, we will proceed to consider them in the order in which they are assigned as error. 1. Questions were propounded to a witness by the de- fendant, in relation to the time he had been in possession, and in relation to the sheriff's knowledge of his interest in the land. These questions being objected to, the witness was not permitted to answer them ; and the court decided that the mere possession of the jiremises hy the defendant, or his acts of ownership over them, were not sufficient to BUllLINGTON, MAY, 1849. 41 Hopping V. Burnam. prove actual notice to the plaintiff of the defendant's pur- chase and deed from Smith. Where irrelevant or imma- terial evidence would be elicited by a question, it will hardly be contended that the court erred in precluding an answer, and hence the objection to those questions was very properly entertained. If constructive notice of the defendant's deed from Smith could have been deemed suf- ficient under the statute, no doubt evidence of possession would have been admissible ; for possession in such a case and acts of ownership would be considered sufficient notice to put the pm-chaser upon inquiry. But the proof required under the statute was of actual notice. Constructive or implied notice may be shown by a record authorized by law, by possession, by acts of ownership, and by other approj)riate circumstances, which may impart notoriety of interest in the estate ; but actual notice can only be communicated by express information to, or personal ser- vice upon, the party interested in the notice. There is no ambiguity in the language of the act. The law makers were not satisfied Avith the term " notice " without quali- fication, which would render proof of notice by construction or implication admissible ; but they have in their wisdom left no opening for such proof; as they have, in express terms required a difierent and more direct kind of notice. Laws of 1840, p. 39, § 31. The question proposed rela- tive to the sheriff's knowledge of the defendant's interest in the land was also irrelevant. Even if established that the sheriff had notice of the deed from Smith to Hopping, it could not therefrom be deduced as a legal or logical inference, that Burnam had actual notice of such deed. In StaJde v. Sphon, 8 Serg. & R, 317, it was decided that notice to the sheriff at a sale of real property is not notice to the purchaser, and so in Stanley v. Perley, 5 Greenl., 369. The propriety of these decisions has not been ques- tioned. Under this view, then, and under the conviction that evidence of possession is alike insufficient and inap- plicable to establish actual notice as required by law, we can see nothing erroneous in tliis ruling. Vol. 11. 4 42 SUPREME COURT CASES, Hopping V. Burnam. 2. It is objected that the execution returns, and sheriff's deed, were improperly admitted in evidence, and in sup- port of this objection it is urged that the levy and return of the sheriff are defective, and the land insuflficiently described. The retm'ns in this case were no doubt incom- plete, and the description of the premises levied upon vague and uncertain. It sets forth the land as " a part of the west half of the south-west quarter of section six, in township sixty-nine, range two west, in Des Moines county, I. T." The question arises, on what part' of the eighty acres described was the levy made? Such vagueness of description would have been adjudged void for uncertainty, on a motion made at the proper time to set aside the levy and return ; and if the deed made under the execution had contained the same defective indefinite description, it could have conferred no title upon the purchaser. But the deed describes the land levied upon and sold, with reliable certainty^ and thereby cures the defective return endorsed upon the execution. After commencing the premises in the ordinary form, the deed proceeds in these words : " I, the said James Cameron, sheriff as aforesaid, levied upon the following described tract of land, to wit : a part of the west half of the south-west quarter of section six, in township sixty-nine, north of range two west, in Des Moines county, commencing at the section post at the south-west corner of said quarter section, running thence north with the township line thirteen chains and forty-two links, thence east thirteen chains and forty-two links, thence south thirteen chains and forty-two links to the section line dividing sections six and seven in said town- ship, and thence west with said section line thii'teen chains and forty- two links to the place of beginning ; containing eighteen acres," &c. The certainty with which the pre- mises are described in the deed, and the averment that they were levied upon under the appropriate execution, show that the property sold was sufficiently identified at the sheriff's sale. But it was otherwise in Throckmorton V. Moo7i, 10 Ohio, 4:2, which is cited in support of the BURLINGTON, MAY, 1849. 43 Hopping V. Burnam. objection at bar. In that case the levy not only described the premises in general and vague terms, but the sheriff's deed contained equally indefinite and unreliable descrip- tion. It described the land conveyed as 1055 acres in a tract of 1731 acres, located in the name of R. T. Neither the sheriff's return nor the deed designate what particular jiortion of the 1731 acres were levied upon and sold. It being impossible to ascertain either from the levy or deed what portion of the entire tract so vaguely described had been conveyed, the deed was very properly declared void for uncertainty. The other cases cited by counsel upon this point, we consider equally inapplicable to the present It has already been determined by this court, that an omission or inequality in a sheriff's return, cannot vitiate a sale made under execution so as to invalidate the right of a bona fide jjurchaser. Humphreys v. Berson, 1 G. Greene, 199, 215. In that case this court adopts the doctrine in Doe v. Heath, 7 Black., 156, in which the retm-ns of the sheriff' did not show who was the purchaser at the sale. The court in their opinion say, that if the party " relied upon the execution and return for proof that he was the purchaser of the land, and that were all the proof in the case to sustain his title, it would be insuffi- cient. The sheriff's returns would not be sufficient to satisfy the statute of frauds. But a deed was made by the sheriff to Whitcomb as the purchaser of the land, and til at is sufficient. A pm-chaser at sheriff's sale, who pays Lis money and receives a deed from the sheriff for the land levied on and sold, cannot be prejudiced if the sheriff make an imperfect return, or if he make no return at all." Guided by this rule, which we regard as salutary and just, it will be conceded that the objection urged in this case is completely removed. True, the return is defec- tive ; it omits a full description of the property levied upon and sold; but a deed "is introduced in authentic form, which with ample detail fills the hiatus occasioned by the imperfect return, stamps with clearness the proceedings 44 SUPREME COURT CASES, Hopping V, Burnam. ■■ ■ ■"■ ■——-——- ■ — ' ' ■ ■ ■ -—.... .J — of the officer, and establishes tlie riglit of the purchaser. Besides it is a settled rule that the returns are not an essential part of the title in a sheriff's sale. If defectivelj made or not made at all, that fact will not impair a pur- chase which would be otherwise valid. So well established is this principle, so uniformly recognized by the most profound jurists, that a review of it at this day might be regarded as supererogatory. The supreme court of the United States, in the case of Wheaton v. Sexton, 4 Wheat., 503, say that " the purchaser depends on the judgment, the levy and the deed. All other questions are between the parties to the judgment and the marshal. Whether the marshal sells before or after the return, whether he makes a correct return or any return at all to the writ, is immaterial to the purchaser." No court has presumed to question the correctness of this decision. The highest tribunals have been guided by it in acting upon all sales made by judicial process. In this case the judgment and deed are conceded to be good, but it is claimed that the levy was defective, and therefore the purchaser acquired no title. We can see no serious defect in the levy. It cannot properly be considered defective, from the fact that imperfect returns were made. A levy precedes the returns and is independent of them. It consequently may have been good and upon specific property, even if incom- pletely, or in no way described by the returns. And inde- pendeut of the presumption that an officer has done his duty until the contrary is shown, we learn from the deed, as before stated, that a levy was correctly made. When the purchaser at a sheriff's sale shows an authorized execu- tion and deed, a correct levy will be presumed. It was held in McEntire v. Durham, 7 Iredell, 151, that a judg- ment, execution and deed from the sheriff are sufficient to support the title of a purchaser, without proof of a le^T". And in Evans v. Davis, 3 B. Monroe, 344, it was held that if property is sold under execution, and there is no return that it was levied on, the law i3resumes a levy. Under these decisions the objections urged to the levy, BURLINGTON, MAY, 1849. 45 Hopping u. Burnam. and to the admission of the execution and deed as evidence in the case, must be regarded as groundless. Even if it appeared that the levy was as defectively made as is con- tended, that could by no means justify the exclusion of the execution and deed. They were admissible in evidence, because essential links in a chain of evidence to establish title. If not sufficient, they were at least conducive proof relevant to the issue, and therefore admissible. 3. The next error assigned controverts the propriety of certain instructions which were given as asked by the plaintiff. The only points involved in these instructions about which there can be the slightest doubt, are those designated in the record as thii-d and fifth. By the third, it appears that the court charged the jury that the deed offered in evidence by the defendant does not show a valid title in him as against the plaintiff, unless it is proven to the jury that the plaintiff had actual notice of the exist- ence of said deed. As applicable to this instruction, we have already considered what constitutes actual notice ; and as the other principles involved in this instruction are intimately connected with the fifth, we will state and examine them in connection. In the fifth instruction, the court charged " that the conveyance from Smith to Hopping before the service was recorded, only had the effect to pass the title of Smith to Hopping as between themselves and such other persons as had actual notice of said conveyance, and that such uced could not affect the rights of a subsequent purchaser at a sheriff^s sale on an execution against Smith, without actual notice." It will be seen by the facts which we have stated, that at the time judgment was rendered against Smith, Hop- ping was in possession of the land in question, and had previously obtained a deed for it from Smith, but had neglected to file his deed for record. It is urged, as worthy of consideration, that as Smith had conveyed the land to another, and as a consequence had no interest or owner- ship in it at the time judgment was rendered against him, such judgment could not operate as a lien upon the land. 46 SUPREME COURT CASES, Hopping V. Burnr.m. No one can think of controverting this position, if such grantee had acquired complete and absolute title to the premises. A conveyance is not complete, a title not abso- lute, until all the leading requirements of the law' regu- lating conveyances have been substantially complied with. If there had been no registry law in force at the time the deed was given to Hopping, nor when the judgment was rendered against Smith, then the unrecorded deed exe- cuted and delivered in good faith anterior to the judgment, would have been evidence of title in Hopping even against the creditors of Smith. Had this been the case, the posi- tion assumed by counsel for him as plaintiff in error could not be overcome. But unfortunately for his title, there was a registry act in force, not only when the deed was given, but also at the date of the judgment. At the date of the deed, February 6, 1840, a statute of Michigan, entitled, " An act concerning deeds and conveyances, approved April 12, 1827," was in force. Michigan laws of 1833, p. 280 ; also republished in ajDpendix to Wisconsin laws of 1836, p. 42. The first section of this act, in defin- ing what shall constitute a good and sufficient deed to pass land, provides that it shall be signed and sealed by the parties granting the same, signed by two or more wit- nesses, acknowledged or proved, and recorded as in the act provided. The second section, after specifying the manner in which deeds shall be acknowledged or proved, requires that " such deed or conveyance shall be recorded in the office of register of probate for the county, or register for the city, where such lands, tenements, or hereditaments respectively are situated, lying, and being ; and every such deed or conveyance that shall, at any time after the publi- cation thereof, be made and executed, and which shall not be acknowledged, proved, and recorded as aforesaid, shall be adjudged fraudulent and void against any s'ubse- quent purchaser or mortgagee, for valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee may claim." The BURLINGTON, MAY, 1849. 47 Hopping V. Burnam. stringent and imperative character of this statute needs no comment. It extends no relief, contains no saving clause in favor of an unrecorded deed, when brought in conflict with the rights of a subsequent purchaser, who has complied with the beneficial requu-ements of the registry law. Such unrecorded deed is to be uncondi- tionally adjudged void against such subsequent purchaser, and cannot be aided by showing even actual notice. It must be obvious, then, that Hopping acquired no right, by his imperfect conveyance, against subsequent purchasers under the law of Michigan. This law continued operative until the first day of June, 1840, when an act of the Iowa legislature took effect. This was entitled, " An act to regulate conveyances," and was approved January 4, 1840. It does not in express terms repeal the Michigan law of 1827, but it displaces that law by its new regulations and provisions in relation to the same subjects — that is, the old law was suspended by the existence and effect of the new ; but if any portion of it continued operative, it was soon after repealed by a general repealing statute. Laws of Extra Session of 1840, p. 20, § 1. The question may here be presented, Did Hopping, by virtue of his unre- corded deed, acquire any additional right under this change in the law? The 29tli section of the new act (Laws of 1840, p. 39) requires every instrument in writing, convey- ing or in any way affecting real estate, when proved or acknowledged, and certified as required by the statute, to be recorded in the ofiice of the recorder of the county in which such real estate is situated. The next section provides, that from the time of filing such instrument for record, it shall be notice to all persons ; and § 31 declares, that " no such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record." As Hopping neglected to comply with the regulations of this law until after the judgment was ren- dered against Smith, and after Burnam's title was in all respects perfected by having his deed from the sheriff 48 SUPREME COURT CASES, Hopping V. Burnam. duly filed for record, we can deduce no other conclusion from the premises than that HopjDing's deed from Smith is invalid as to Burnam, and can in no way impeach his title. It is true that this deed possesses ample validity between the immediate parties to it, without a compliance with these recording acts. These laws were not intended to affect the immediate parties to conveyances, but they were designed as a protection and shield to third persons, as an effectual barrier against fraud and imposition upon the rights of creditors, and innocent subsequent purchasers. And as such laws are found to be vastly conducive to this noble object, they are regarded with peculiar favor by courts of justice. They cannot be considered as oppres- sive or onerous. Their regulations are easily understood, they may be readily followed, and afford ample protection to all parties concerned. Men buying real estate in good ftiith, and for a valuable consideration, generally have the precaution to comply with the regulations of a law so beneficial in its effects, and so essential in securing title. If this prudential regulation is neglected, the de- linquent pm'chaser has no one to blame but himself The presumption of fraud is created against the validity of his purchase by his own laches, and he must abide the legal consequences. Had the purchase been made and the deed delivered prior to the judgment against Smith, Hopjiing would have been secure by filing his deed for record previous to the rendition of the judgment. But as this essential attribute to title was omitted. Smith's right to the land, so far as it concerned his creditors or subsequent purchasers, Avas not alienated, but still remained in him for their benefit, as absolutely as if no transfer had been made, and hence his right was the proper subject of the lien created by the judgment. See act to ])revent frauds, approved January 19, 1840, Rev. Stat., 271, § 4. Another position assumed by counsel with apparent confidence is, that the instructions of the court below were erroneous, because, as they allege, the deed to Hopping BURLINGTON, MAY, 1849. 49 Hopping V. Burnam. was not subject to any recording act. In supi3ort of this point, it is contended that as the Iowa recording act of 1840 took effect after the deed was given, and as no law should have a retrospective operation, it should not affect Hopping's previously acquired title. We fully agree with counsel that a statute cannot operate retrospectively so as to impair rights previously acquired. But we are unable to see the particular application of this principle to the present inquiry. In sustaining the action of the court below, no retrospective construction of the statute is neces- sary, nor are vested rights in any way disturbed. We have already shown that Hopping acquired no right against the creditors of Smith nor against subsequent purchasers, pre- vious to the law in question, and consequently he had no right which could be impaired by its provisions ; neither did he acquire any right under this law, because he did not avail himself of its regulations. He was by no means exempt from its recording requirements merely because his deed was executed before the law took effect. Its pro- visions were not limited to deeds subsequently executed, but they extended equally to deeds then in esse, to those previously executed and acknowledged but not recorded. And still the law did not retroact, it did not require deeds to have been recorded before it took effect, but it assumed a regulation over them from and after that event. It operated in the same way upon prior deeds, as did the 6th section of the act to prevent frauds operate upon judgments previously rendered, and must be governed by the same rule of construction -recognized by this court in Woods v. Mains, 1 G. Greene, 275. We can discover nothing in Norris v. Slaughter, 1 G. Greene, 338, which militates even remotely against our conclusion upon this point. Hopping's common law rights under the deed are adverted to, but as the deed has never been without statutory control, never for a moment released from the . requirements of a recording act, it is useless for us to consider what rights he might have acquired under a law which has had no bearing upon the case. 60 SUPREME COURT CASES, Hopping V. Burnam. Thus viewing the principal objections urged to the instruction of the court below, and the uncontroverted principles of law applicable to those instructions, we are led to the conclusion that they were properly given. From the foregoing remarks it will be understood that this court still adheres to the principle decided in Brown V. Tuthill, 1 G. Greene, 189, that a judgment lien will hold against a prior unrecorded deed, without actual notice. We have carefully examined the arguments and authori- ties brought to bear adversely upon this decision, and we are unable to see any substantial reason for doubting its propriety or correctness. Indeed, we cannot see a reason- able or plausible ground for any other conclusion, unless legislative enactments upon the subject, and the right of parties under existing laws, should be entirely dis- regarded. In no other way can the intention and spirit of those statutes be maintained. Clearly common law decisions, or those made upon statutes materially different, cannot be applicable to the laws of Iowa. We believe in every state w^here laws like ours are in force, like decisions have been made. In Parker v. Miller, 9 Ohio, 108, the title acquired by the purchaser under the attachment law of that state, was adjudged preferable to the title of an alienee of the judg- ment debtor by deed executed before, but not recorded till after the lien was created by the service of the writ. As the deed in this case was not recorded as required by the law of that state, it was determined that the rights of the first grantee, not having been legally perfected, should yield to those of the second. In Pennsylvania it has been held that a purchaser of lands at a sheriff's sale is protected from all instruments not recorded and of which he had no notice. Irvine v. Campbell, 6 Binn., 118. In Virginia it has been decided that when a deed of land is made by a debtor, before judgment is recovered against him, but not recorded until afterwards, the judgment is a lien on the land. McClure v. Thistle, 2 Gratt., 182. BURLINGTON, MAY, 1849. 61 Hopping V. Burnam. And SO in Missouri, a judgment lien will hold against a prior unrecorded deed, Reed y. Austin, 9 Mis., 722. A like decision was j)reviously made by the same court in the case of Waldo v. Russell, 5 Mis., 377 ; also in Hilly. Paul, 8 ih., 479. In the case last cited, a mortgage was given about one month before judgment was rendered against the mortgagee, but was not filed for record till over two months after. The sale under the judgment and the recording of the sheriff's deed took place at a still later period, and the purchaser was duly notified at the sale that there was a mortgage on the land, and still it was held that the judgment lien and sale under it were good against the mortgage. These cases are decided upon statutory regulations, which are in all particulars analo- gous to those of Iowa. The same doctrine also obtains in Kentucky under a statute which declares such deeds void as to creditors and purchasers without notice. Graham v. Samuels ^ 1 Dana, 166; Helm v. Logan, 4 Bibb, 78. We find in Massachusetts the same principle recognized. It was held in Coffins. Ray, 1 Met., 212, that the creditors of a second grantee, who had proceeded by attachment against his land, would hold against the second grantee without actual notice of his prior unregistered deed, per- sonally given before the attachment levj^ The same may be said of Illinois, Martin v. Dry den, 1 Gilman, 187. So in North Carolina, Davidson v. Cowen, 1 B. and Dev. Eq. Cas., 470. In Tennessee, a deed not duly registered is void as to the creditors of the grantee, either with or without notice. Washington v. Tronsdale, Mart. & Yerg., 385. We find in other states decisions to the same effect. But in New York a prior unrecorded mortgage was pre- ferred to a subsequent judgment. Jackson v. Dubois, 4 John., 216. And this doctrine is mainly sustained by subsequent decisions. Jackson v. Terry, 13 John., 471 ; Jackson V. Town, 4 Cowen, 606; Jackson y. Post, 9 ib., 120. In the first of these New York cases it is conceded 52 SUPREME COURT CASES, Hopping V. Burnam. by the opinion of the court, that if the jiiirchaser had perfected his title under the judgment before the registry of the mortgage, he must have recovered. In Jackson v. Terry ^ the subsequent purchaser from the judgment debtor prevailed against the judgment purchaser, because his deed from the sheriff had not been recorded. The case of Jackson V. Toron turned chiefly upon the want of title in the judgment debtor. And in Jackson v. Post^ the pur- chaser under the judgment, appears to have had notice of the prior deed. These decisions are explained and quali- fied in Jackson v. ChcLmberlain, 8 Wendell, 621, and in Jackson V. Post, 15 ib., 588. The registry act of New York, under which these decisions were made, is like the English statutes and applies to a subsequent bona fide purchaser without notice. This, it is considered, does not extend to a judgment creditor. But the statute of Iowa in force at the time judgment was rendered against Smith, is much more comjirehensive. In unrestrained language, it declares that no unregistered deed shall be valid except between the parties and such as have actual notice. This as clearly comprises creditors without notice, as it does purchasers. Beyond the two exceptions, it is unqualified in its extent and application. Giving to our statute, then, the construction and effect evident!}' intended by the legis- lature, and directed by the enlightened adjudications of other courts upon similar statutes, we are united and clear in the opinion that the judgment against Smith, having been rendered without actual notice upon his creditor, became an effectual lien upon the land in question, and that it can in no way be impaired by the unregistered deed to Hopping. A judgment lien, it is true, does not of itself establish a right to the land on which it attaches, -but it does confer a priority interest, a right to levy on the same to the exclu- sion of subsequent and adverse claims, and when the lien is enforced by the judicial sale, the title of the creditor and of those claiming under him relates back to the date of the judgment, and prevails to the exclusion of all inter- BURLINGTOX, MAY, 1849. 6? Hopping V. Burnam. mediate incumbrances. Rankin v. Scott ^ 12 Wheat, 177 ; ConardN. Atlantic In. Co., 1 Peters, 442; Massingell v. Downs, 7 Howard U. S., 767. Under this view of a judgment lien, it will be observed that Burnam's title, acquired under the judgment by virtue of the levy and sheriff's deed, must commence from the date of the judgment, and from that time be preferred to all subsequently acquired or registered rights. If then Burnam's title rested upon the priority of the judgment lien alone, without reference to the fact that his deed was first recorded, it would prevail over Hopping's unregistered deed. Burnam's priority of title appears to be based upon a double security. The preference to his title is not only secured by the judgment lien, but also by his prior re- corded deed, which was filed for record five days before Hopping's. That the deed for land, first filed for record though subsequently dated, will have the preference, can not be controverted. Upon this point see, in addition to the authorities cited, Thompson v. Bullock, 1 Bay, 364 ; Curtis V. Deering, 3 Fair., 499 ; Trull v. Bigelow, 16 Mass., 406; Whittemore v. Bean, 6 N. Ham., 47; Light ner v. Money, 10 Watts, 407 ; Jackson v. Walsh, 14 John., 407. In thus deciding this case, we have carefully examined the authorities adduced and the arguments adi'oitly applied by counsel for the plaintiff in error, and still we are un- able to arrive at any other conclusion. The case of Jack- son V. Chamberlain, 15 Wend., 620, upon which particular reliance appears to have been placed, is not we think de- parted from by our views in this case. The facts in the two cases are by no means analogous. In that case the unrecorded deed was executed in 1793, at which time there was no law in force requiring a deed to be recorded in order to give it validity, consequently the conveyance to the grantee was perfect on the delivery of the deed. As there was no want of validity in the transfer, the grantor's right to the property was completely divested, and of course a subsequent judgment against him could not create a lien upon the property. The opinion of the 54 SUPREME COUBT CASES, Hopping V. Burnam. court shows conclusively that if there had been a registry act in force, as in the case at bar, a different decision would have been made. On page 624, the court say, in re- lation to the grantor of the land, that " even if the title had passed from him in a manner conclusive against him as in favor of his grantee, as by an unrecorded deed where the statutes require a record to conclude subsequent in- cumbrances on honajide purchasers, still if such record be necessary as against such purchasers and incumbrancers, an unrecorded deed is unavailing against them ; so in this case, had it been necessary by statute in 1793, that every deed should be recorded to give it effect against subsequent honajide purchasers or incumbrancers, then there would have remained an interest in Edwards (the grantor) upon which the judgment would have been a lien, and though our statute does not save the rights of judgment creditors, and the judgment alone is unavailing as an incumbrance against an unrecorded deed, yet when that judgment is enforced, and a sale is made upon execution, and the sheriff's deed is first recorded, the purchaser becomes a honajide purchaser, and in that character is entitled to the property in preference to the grantee of the unrecorded deed." Apply these views of the law, predicated upon the limited and peculiar statute of New York, and still they fully sustain the general conclusion to which we have arrived in this case. But as the statute of that state does not justify the same efficiency and force to judgment liens, the decisions of their com*ts upon those points cannot be applicable to Iowa. So far as they are applicable, we are disposed to regard them as reliable autliority, and from which we think there has been no departure in adjudicat- ing the questions involved in this case.* Judgment affirmed. M, D, Browning and J. C. Hall, for plaintiff in error. Henry W. Starr, for defendant. * A petition presented for a reliearing of this case was overruled. BURLINGTON, MAY, 1849. 56 De Louis v. Meek. DE LOUIS et al. v. MEEK et al, A bill to vacate a judgment of partition for fraud may be in the nature of a lill of review, and may be demurred to for want of equity. No motion having been made to amend, a bill. may be dismissed, and a de- cree rendered upon the demurrer. Upon a general and special demurrer it is not necessary to make good all the causes of demurrer assigned. If sustained for one out of several causes affecting the whole bill, it is sufficient. A demurrer puts in issue the entire equity of the bill, and if sustained as to some, it shouid be as to all the defendants. The objection of a misjoinder of complainants cannot be made for the first time at the hearing, but should be assigned among the causes of demurrer. An allegation of fraud in a bill to set aside a partition, is sufficiently specified where it charges that the attornej* for plaintiffs in the partition suit entered the appearance of complainant without his knowledge, consent, or autho- rity, and thereupon admitted a large amount of spurious, fraudulent and unjust claims to others, which proportionably diminished his share in the property. Where a bill charges actual fraud on the ground of deception, artifice and circumvention, in terms judicially intelligible, it is sufficient. Where a judgment in partition is alleged to have been obtained by fraud, it may be impeached by an original bill without leave of the court. If the attorney of a party by fraudulent representations procure his oppo- nent's defeat in court, or if an attorney appear and act for a party without his knowledge or authority, the party injured may be relieved in a court of equity on the ground of fraud. The provisions of the partition act can only apply to proceedings within its legitimate power, and not to proceedings mala fide. Fraud vitiates the most important judicial acts. If in a compromise partition, the petitioners or their attorneys act fraudu- lently by misrepresentation or concealment, the party injured ia entitled to relief in equity. A general allegation of fraud in a bill is sufficient, if so certainly and dis- tinctly stated as to make the subject matter of it clear. Appeal from Lee District Court, Opinion by "Williams, C. J. Elizabeth De Louis, for- merly Elizabeth Hunt, John Wright, and Henry De Louis, husband of the said Elizabeth, on the 20th day of August, 1845, filed their bill of complaint against William Meek et al. , in the district court of Lee county, setting forth that by treaty between the United States of America and the 56 SUPREME COURT CASES, De Louis v. Meek. Sac and Fox nation of Indians, dated August 4, 1824, a certain tract of land lying and being within said county of Lee, and commonly known as the " Half-breed Tract," and lying between the rivers Des Moines and the Missis- sippi, and bounded on the north by a line running due east from the north-west corner of the state of Missouri to the Mississippi river, as in said treaty set forth, was reserved for the use of the half-breeds belonging to the Sac and Fox nation, to be held by them as other Indian titles were held ; that on the 30th of June, 1834, by an act of Congress, the reversionary interest of the United States was relinquished, and vested in such half-breeds as were by the Indian title entitled to the same, under the reserva- tion in said treaty ; that the tract of land contains about 119,000 acres, more or less; that Elizabeth De Louis is one of said half-breeds mentioned in the treaty, and in said act of Congress, to whom said reservation and relinquishment was made ; that by virtue thereof she became the legal owner of one full undivided and equal share of said tract of land, in fee, in common with the other half-breeds designated and intended as the re- cipients of the said reservation and relinquishment of the land aforesaid ; that she was married to Henry De Louis ; that she, or her said husband, had never sold, or in any manner parted with, her or theh interest in said land, but had since said treaty resided en the land, and had never in any manner abandoned the same or her interest therein ; that she and her husband, at the time of the filing of the bill, were entitled to one equal share of the land; and that they then resided on, and occupied a part of the land, as their home, and had made im- provements thereon. The bill then sets forth that John Wright claims, and is, the owner in fee of one-fourth of a full share in the said land, so held by reserve and relinquishment as afore- said, by purchase from one Isaac R. Camj)bell, and Wil- son Overall, who had purchased the same from Franpoise Hebert, a half-breed of the Sac and Fox nation, who was BURLINGTON", MAY, 1849. 57 De Louis v. Meek. entitled thereto by virtue of the treatj' and act of Congress aforesaid ; that she, the said Fran^-oise, had intermarried with one Charles Menar ; that at the time of the relin- quishment she had not abandoned her chiim, and had her home on the land ; that she and her said husband had conveyed then- share in the land to the said Campbell and Overall, from whom said Wright had purchased the ssame for a valuable consideration. For all which, reference is made to the title-deeds, ready to be produced in court. The claim and title of Wright, by proper deeds of con- veyance from Hebert and wife to him, for one-fourth of a share in the land in common with the other owners, is set forth, with the averment that he had his home and resided on the land at the time of making his complaint, and for a long time before it, and that he was an occupant thereof, and had made valuable improvements on said half-breed tract. The complainants then proceed to state in their bill, that on or about the 14th day of April, 1840, Josiah Spalding, and others therein named, filed in the district court of Lee county their petition for a jDartition of said half-breed tract of land among themselves and certain other persons pretending and claiming to be the persons entitled thereto under the treaty, reservation and relin- quishment aforesaid, or legally claiming under those who were originally so entitled ; that very many of the persons so petitioning had no good and legal right or equitable title to any part of said tract of land. The bill admits tliat the claims or titles of thirty-three persons besides those of De Louis and Wright, the complainants, are correct and just, and avers that all the rest and residue of the claims which were adjudicated and allowed in the said decree of the district court, made upon the said petition for the partition of the said land, were illegal and fraudu- lent, being obtained in the names of persons who had no real existence, or by persons who had fraudulently repre- sent(Ml themselves to be half-breeds when in truth they were luu : and that the petitioners well knew that the said claims wci'e inijust. and could not be substantiated by legal proof. Vol. II. 6 68 SUPREME COURT CASES, De Louis v. Meek. The bill also charges, on behalf of Wright, that Reid & Johnston, solicitors of the district court of Lee county, entered his appearance for him, said Wright, in the suit for partition in which the decree was entered, and assumed to act for him without any legal authority so to do, and without his knowledge, and consented to the decree on the part of your orator without legal authority so to do , that they, said Reid & Johnston, were at the same time acting as solicitors for Marsh, Lee & Delavan, and others in the same proceeding ; that they entered into said con- sent so as to procure a large portion of said spurious claims to be allowed in favor of said Marsh, Lee & Delavan, and others, so as to swell greatly their interests, and thereby proportionably to diminish that of said Wright ; that all such claims to said land, so admitted and allowed, except the thirty-three shares and one-fourth of a share named in petitioners' bill of complaint, were fraudulent and unjust, never could have been substantiated by legal proof, and would never have been admitted into the decree except by the consent or compromise so made. It then avers that the actings and doings aforesaid are contrary to equity and good conscience, and that the petitioners were thereby greatly injured and defrauded. It is also charged in the bill that the consent or com- promise upon which the decree was entered, was made by the parties thereto and the conductors thereof in fraudu- lent confederation and collusion with each other, they having combined to cheat and defraud petitioners in the premises, and that the complainants did not participate therein ; that the same was intended to, and did, injure the rights and possessions of the petitioners, and injm'i- ously affect and endanger them in the quiet enjoyment of then" improvements and homes on the said half-breed tract of land. The bill further charges that the decree was produced and obtained by falsely and fraudulently inducing the court which made it to believe that all legal claimants interested in the said tract of land were duly and legally BURLINGTON, MAY, 1849. 59 De Louis v. Meek. represented in said court, and that their rights were equit- ably secured thereby ; that they, or persons legally author- ized to act for them in the premises, had mutually agreed and consented thereto, and had agreed on their respective interests in the land as therein adjusted, all of which was untrue in point of fact; that by such fraudulent collusion the court was deceived, and induced to order, adjudge and decree, and did order and decree, that the claims and rights of the said half-breed claimants amounted to one hundred and one in number, as equal portions or shares ; and that the said one hundred and one shares should be divided amongst certain persons, parties to said decree, who are made parties to this bill as defendants, in the proportions specified in said decree, and that the rights, titles and claims of all other persons should thereafter be barred and concluded as to the land ; that these doings are against and in derogation of the rights of the petitioners, and contrary to equity and good conscience. It is then stated in the bill that commissioners were appointed to make partition of the land into one hundred and one shares of equal value among the parties to the proceeding for the decree. Reference is made to the pro- ceedings in partition, making them part of the bill. John Wright also complains that he appeared at the place of holding of the said court at the term when the decree was made, and before the making of it, for the ])arpose of proving up his ''claim, and to obtain his just rights ; and that he was informed by one of the counsel lor the complainants in said petition for partition, that the cause would not be tried at that term. He avers that this was done before any agreement in the case was made, or any action had upon said petition for the perfecting or making of said final decree ; that under this assurance from said counsel he left the court, and returned to his home, under the belief that no such trial would be had at that term ; that the information so received from said counsel was untrue and fraudulent in point of fact, and that by means of which he, the said Wright, was fraudu- 60 SUPREME COURT CASES, De Louis v. Meek. lently induced to believe that liis Toeing longer present at that term of the court was unnecessary; that he was thereby induced to leave and go home, and therefore failed to be present and attend, as he otherwise would hnve done, to the procurement of his just and equitable rights, by reason of which said Wright alleges that he was greatly cheated and defrauded, and suifered damage. The bill then sets forth the names of the persons who received by said decree beneficial interests, among whom are Marsh, Lee & Delavan, trustees of the New York Land Company, and Isaac Galland and others. The bill charges,. in conclusion, that the decree was obtained by collusion and fraud generally, and that it ought to be vacated, set aside and made void, and that the land in said tract ought to be partitioned anew among the rightful owners thereof The prayer of the bill is for the proper legal process ta compel the parties respondent to appear and answer ; that they be made to discover by what right they claim to hold any interest or claim in the land ; that they may be put on the proof of their claims before the same may be allowed; that all and singular the facts of the case, and rights of the respective parties and true claimants, be made to appear, that full justice and equity may be done in the premises, in order that a full and ample relief in the premises, both general and special, may be granted and decreed, as equity and good conscience and the nature of the case shall re- quire ; and especially that the decree aforesaid be vacated and annulled for the fraud aforesaid, and that a re-parti- tion of said lands may be had among the rightful owners thereof, according to their respective shares and interests therein ; and that full and complete justice may be done in the premises to all parties concerned, according to the rules and principles of a court of equity. The foregoing is the substance of the bill of the com- plainants in this action. To this bill the respondents demurred generally and specially, on the ground that it (lid not show equity on its face. Several special causes of demurrer were assigned, as follows ; BURLINGTON, MAY, 1849. 61 De Louis v. Meek. 1 . The bill is defective in form and substance, and con- tains no equity entitling; complainants to relief in chan- cery. " The bill charges fraud generally, but does not set out such facts as warrant the charge of fraud, either as to complainant Wright being deceived, or as to Reid & Johnston representing complainants and defendants. Nor, as to the compromise, that the parties knew bad claims were allowed, nor that the court was deceived and the decree obtained by fraud." 2. " The bill is defective and insufficient, as it does not specify any error apparent on the face of the decree or record, but only alleges imposition on the court, by which the court decreed erroneously with reference to the real justice of the case, but right according to the record, which is not allowable in a bill of review." 3. Said bill, although filed as a bill of review, con- tains matter that, if otherwise sufficient, is only proper for a bill impeaching the decree for fraud, which is not allowed. 4. The matter alleged in the bill charging fraud, and which is the only pretended equity in said bill, cannot be urged in such a bill (impeaching the decree for its fraud- ident obtension) by complainants, who were parties to the decree. 5. Said bill is defective, because it does not definitely show wdiat is its character ; whether a bill of review, or a bill impeaching the decree for fraud in its obtension. G. Said bill does not sufficiently set out the errors, if any, in said decree, by showing the proceedings void, and the particular error in the decree, as reqniired by the rules of chancery jjleading. The demurrer was sustained by the court below, and is now here on appeal. As the counsel concerned for the parties have taken the complaint in this case, as filed, to be a bill in chancery in the nature of a bill of review, impeaching the decree in partition for fraud, and have so treated it upon the argument ; and as this court is of the opinion that this is the proper character of the bill, it will 62 SUPREME COURT CASES, De Louis v. Meek. be SO considered. This, then, being the character of the bill, we will proceed to examine the case, as presented on the demurrer of the respondents filed thereto. The demurrer is general, and denies that the bill of the complainants contains any equity upon which to maintain their suit in a com't of chancery for relief. That the defendants had a right to demur to the bill for want of equity, we think cannot be with propriety ques- tioned. It was their privilege in a proceeding such as this, to resist in the outset of the trial, by putting in ques- tion the legal right of the complainants to obtain a decree in accordance w4tli their prayer upon their own showing in the bill, and thus put to the test of law the case as stated. It is the peculiar province of a court of equity to entertain, investigate and decide, questions of conscience, affecting the rights of the citizen, upon the pure and full principles of justice But, in this court, the party com- plaining and seeking redress must come to her altar with pure hands, in good faith, and prepared to show that he is chargeable with no fault or gross negligence on his part. He must bring himself within the well defined limits of the judicial sphere, as prescribed by the rules of practice, in compliance with which alone justice can be properly invoked. He must show that be is injured in his rights by those of whom he complains ; that he has a right to complain ; that the wrong of which he complains is not his own; and that he has not an adequate remedy in a court of law. Failing thus to assume the proper position, it is the legal privilege of the respondent to demur, and put his complaint to the test of law. The privilege of demurring to a bill such as this cannot be questioned. See Story's Eq. PI., §§ 637, 639. Objection to the action of the court below has been made by the counsel of the complainants, in entering judgment against them upon the demurrer. It is urged that they should have been allowed to amend. The demurrer being sustained on the ground that the bill contained no equity, and as no motion was made for leave to amend before BURLINGTON, MAY, 1849. 63 Do Louis V. Jleek. judgment was entered, there is no error in this. Story's Eq. PI., § 361 ; Rev. Stat, p. 108, §§ 16, 17. It is also contended by the complainants, that the particular causes of demurrer should have been distinctly pointed out by the party demurring. This would be cor- rect, if the demurrer were strictly special in its nature. The demurrer, with the causes assigned, attacked the bill in a twofold character, with a view to defeat it in either. It does not bear the badge of a mere bill of review, and therefore the special causes assigned to assail it in that shape need not be considered ; but, taking it as a bill in the nature of a bill of review, impeaching the decree for fraud, its equity is directly denied by some of the causes assigned. The assignments go to the entire gravamen of the complaint, so as to defeat it entirely on matter of sub- stance ; therefore the fact that the respondents failed to make the other special causes of demurrer good did not deprive them of the benefit of those which were valid in the court below. Story's Eq. PI., 350, § 443. It is alleged, also, that a part of the defendants only have demurred, and that, as to the rest, the bill should not have been dismissed. We have just stated that the de- murrer strikes at the bill as entirety, putting in issue its whole substance, on the charge of fraud, against all the defendants. Upon this issue in law the right of action as to one and all of the parties was at stake. The bill seeks to set aside the decree in partition for fraud in obtaining it. If the decree be set aside as to one of the defendants, it will be so as to all. This rule in legal proceeding is in consistency with the dictates of sound reason and justice. 1 Scam., 553 ; Vansc/iai/i v. Trotter, 6 Cowen, 600. Suf- ficient, however, has been said on this point, as upon the argument it was not strenuously urged. Whilst con- sidering the points touching the demurrer, and the bill as affected by it, together with the action of the court upon it, it may be proper here to dispose of a question raised by counsel for the defendants. It is urged by them that the bill shows a misjoinder of the complainants, and ia 6.4 SUPREME COURT CASES, De Louis V. Meek. therefore bad. If this objection to the bill be well founded, it sliould have appeared among the causes of demurrer assigned, so that the case might, in accordance with the rules of jjractice, have been disencumbered, by the dis- missal of an improper party. On this point, see Boydw Iloijt, 5 Paige, 65 ; Trustees of Watertonn v. Cowa/n, 4 Poigo, 510. In the case of Grimes v. Wilson, 4 Blnckf., o35, this matter is discussed, and the true principle pre- sented. There the parties stood in no privity with each other ; one was an infant, and had a good case in equity ; the other had a distinct cause of action clearly cognizable at common law, showing no impediment to his remedy there. There was np privity existing between them ; their interests were separate ; their demands independent. In such a case the bill would be dismissed in answer to the proper pleading. In the case at bar, altliough in the pro- ceedings in partition, as set forth in the bill, the condition of the complainants is shown to be, in some respects, different, their interests in the end sought, by imi)e;ichiDg the judgment or decree of partition, is one and the same. The rights claimed by all the complainants are conjoined by the issue to be tried on the merits of the bill. The doctrine here asserted and adopted by this court is found in the case of Ballantine v. Beall, 3 Scam., 206, and Story's Eq. PI, 530 and note, 531, 532, 535; Tarrick v. Smith, 5 Paige, 560; Brinkerhoff v. Brown, 6 John. Ch., 1 50. We deem it unnecessary to refer to fiu-ther author- ities on this point, as we think the principle and practice on it well established. Where there is unity in interest, as to the object to be attained by the bill, as in this case, the parties seeking redress in chancer}^ may join in the same complaint and maintain their action together. In such a case, it is within the province of a court of chancery to mete out to each and all of the comj^lainauts their rights, on the principle of sound equity. The objections presented touching the demurrer being disposed of, we will proceed to consider the bill under its legal operation. We have already said that the entire BURLINGTON, MAY, 1849. 65 De Louis v. Meek. €quity of the bill is put in question by the demurrer. Have the complainants presented such a case by their bill as will justify a court of chancery in granting the relief sought ? The complainants, De Louis and wife, show, on their part, that they are the owners in fee of one full share of the tract of land known as the half-breed tract, situated in Lee county, Iowa, to which Elizabeth, the wife of said De Louis, became entitled, as one of the original half- breed proprietors thereof, by treaty between the United States and the Sac and Fox Indians, made August 4, 1824, and by the act of Congress of June 30, 1834 ; that the tract contains about 119,000 acres of land, more or less ; that she held the same in common with others claiming by the same title ; that the said De Louis and wife are legally entitled to the same, &c. John Wright claims by title derived from the same source, by regular conveyance, and shows that he as owner is entitled to one-fourth of a full share of the said tract ; that he lives on the land, has made valuable improvements, &c. By this showing the complainants put themselves in the con- dition of persons claiming and having rights of valuable consideration, involved with those of others in such pro- ceeding at law, as may have been resorted to for the adjustment of the interests of the several owners of the laud in question. They then complain that by the agreement and consent of Marsh, Lee & Delavan, and others, and their counsel participant therein, they have been injured in anddei)rived of their just rights; and therefore seek relief, by praying that the judgment in partition of said land, entered by the district court of Lee county on the 6th of May, 1842, may be set aside for fraud. AVe will proceed to examine the points made as to the merits of the bill on the ground of fraud. Although the bill has been dismissed as to De liouis and wife on their own motion, having been parties, we must consider it as it was in the court below. In the first place, it is contended 66 SUPREME COURT CASES, De Louis v. Meek. that the charge of fraud, as laid in the bill, is insufficient in law ; that the charge is general, and does not allege the fraud in proper specitications as to the particular facts in which it consists. Judge Story, in his Equity Jurispru- dence, vol. 1, p. 196, § 186, says : " It is not easy to give a definition of fraud in the extensive signification in which that term is used in courts of equity, and it has been said that these courts, very wisely, never laid down as a general proposition what shall constitute fraud, or any general rule beyond which tliey will not go, upon the ground of fraud, lest other means of avoiding the equit}'' of the courts should be found out. That fraud is more odious than force." He then proceeds, on page 197, in the next section, to give a definition in substance, by saying that, " Fraud, indeed, in the sense of a court of equity, pro- perly includes all acts, omissions and concealments, which involve a breach of legal or equitable duty, trust or confi- dence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another." Applying this view of fraud in the court of equity, how does this case stand upon the biil ? It contains, in the first place, a specific charge that the attorney for the peti- tioners for partition, without the knowledge, consent or authority of John Wright, the complainant, entered their appearance for him, acting at the same time for the peti- tioners, and entered into a consent and agreement to allow a large number of false and spurious claims in favor of Marsh, Lee & Delavan, and others, so as greatly to swell their interest, and thereby proportionably to diminish his. It then proceeds to aver that all the claims so allowed, except the thirty-three shares and one-fourth of a share, as enumerated in the bill, and set forth, are fraudulent and unjust, could never have been substantiated by legal proof, and would nevfer have been admitted into said decree, except by such compromise ; that the actings and doings of the parties, conductors and others, concerned in making the compromise, are contrary to equity and good con- BURLINGTON, MAY, 1849. G7 De Louis V. Meek. science ; and that by reason thereof, the complainants have been, and are greatly injured and defrauded in the premises. The charge of fraudulent confederation and collusion in making the compromise is clearlymade against the parties thereto and the conductors thereof, they having so combined to cheat and defraud the complainants in the premises, and thus to deprive them of their just right; and to endanger and disturb them in the quiet enjoyment of their possessions and improvements on the tract of land aforesaid. The bill also charges that fraud and deceit were practised upon the court by inducing it to believe that the compromise was brought about by mutual consent of the rightful owners of the land, and proper parties to the proceeding, or those duly authorized to act in their behalf; that, in fact,, all this was untrue. That persons interested in land, as owners, being ten- ants in common, may by consent and agreement among themselves, dona fide make a division thereof so as to sever their interests, and thereupon, waiving the ordeal of trial by proof in court as to title, procure a deed of I)artition, is not doubted. In doing this, however, if there be owners whose interests are involved, who are not per- sonally present, and do not participate in such consent, or who are not represented legally in the transaction, and whose interests or just rights may be injuriously ailected or lost thereby, such persons may seek and find redi'ess in a court of equity. If, in the procurement of such decree or judgment, fraud be resorted to by the parties obtaining it, then upon a proper case being made out b}' those who may liave been injured by it, a court of equity will, in the exercise of its power, give relief. It is admitted tliat the bill charges fraud in general terms. Then, if it contains an}' allegations of fact upon wliich the equitable interposition of this court is invoked, what are they ? Do they show that the defendants used cunning, deception or artifice to circumvent, cheat or deceive the complainants ? And do they charge defend- ants with positive or actual fraud in the fact? or that they 68 SUPREME COURT CASES, De Louis v. Meek. are justly chargeable with acts, omissions and conceal- ments, which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and by which the com- plainants are injured? The fact that the decree was not obtained in the ordinary mode of trial, as to proof of tlie rights of complainants to the land, bat by consent, is clearly stated. Also, that very many of the persons who petitioned for a decree, and who participated in the con- sent or compromise upon which the decree was made and entered, and Avho were benefited thereby, had no good or legal right, or equitable title, to any part of the tract of land which was divided among them ; that about two- thirds of the claims admitted and allowed were spurious, fraudulent, unjust and illegal; and being so, were taken into the decree so as to swell the interest of Marsh, Lee & Delavan, and diminish the interests of the complainants in the land, are fully charged. The. bill here, we think, not only charges, specifically, facts which amount to omissions and concealments in making the compromise or consent, involving a breach of equitable duty, bnt that petitioners knew such claims of Marsh, Lee & Delavan, and others, were fraudulent, false and spurious, and that they fraudulently confederated and colluded with each other, with the intent to defraud and cheat the complainants. In this the bill goes further than to charge mere -constructive fraud ; and in terms judicially intelligible, charges actual fraud on the defendants, on the ground of deception, arti- fice and circumvention. But it is urged that the proceeding was regularly in court, in accordance with the provisions of the law of the state ; that the complainants had legal notice, and that it was their duty to attend to their rights and interests in the land. We consider that the bill furnishes a fair and full answer to this position, so far as Wright is concerned. He charges that, at the term of the court when tlie decree was made upon the compromise, and before either was made, he was in attendance for the purpose of seeing to his rights, and that he was told by one of the counsel of BURLINGTON, MAY, 1849. 69 De Louis V. Meek. the petitioners that the cause -would not he tried at that term ; that under this assurance of the counsel he left the court and went home. He also charges that by this act of the counsel he was fraudulently and deceitfully induced to believe that his presence was no longer necessary at that term of tlie court, and therefore he failed to attend to his rights. This act of the counsel is laid in the bill as having operated to defraud him. An attorney or counsel, when acting in court procedure for his client, acts in his stead. His acts, in managing the business in court, are the acts of the client. It will not be doubted that, if the party to a proceeding in court would, by fraudulent repre- sentation, procure his opponent's defeat in the like manner as stated in the bill in this case, the party injured might be relieved in a court of equity on the ground of fraud. Then, in the case of an attorney when acting for his client, the same principle of equity and good conscience clearly applies. If it did not, much confusion and injustice might be found to exist. We think the fact, as stated in the bill, that Wright was induced to leave com't, taken in connec- tion with the fact, whicli is also alleged as a ground of fraud, that the attorneys of Marsh, Lee & Delavan, and other petitioners, appeared and acted for Wright, the complainant, without his authority or knowledge, pre- sents a clear exception to the general rule, and was suf- ficient to meet and overcome the demurrer. It may be said that the fact that the attorneys having appeared for Wright without authority ought not to affect the petitioners for partition, and the otliers benefited by the compromise and decree. But they were the attorneys of Marsh, Lee & Delavan, and others, who were seeking to be benefited by the decree at the same time. The attorneys, according to the averments of the bill, must have known that they had no authority to appear for AVright in making the compromise. When the rights of l)arties are involved in legal action, such knowledge of the attorney is, in the general, considered as notice to the client. But clearly, if the attorneys knew that Wright 70 SUPREME COURT CASES, De Louis v. Meek. had given them no authority to appear and consent to the compromise for him, and they failed to inform the parties to it of that fact, it was a breach of duty and against good conscience. Story's Eq. Com., 395, § 408 ; Astorv. Wells, 4 Wheat, 466, 4 Condensed, 513; Fulton Bank v. JSf. Y. ^ Sharon Canal Co.^ 4 Paige, 137. But, supposing that the attorneys who appeared for Wright had been authorized by him to act as his attorneys in the case, will it be contended that an attorney may, by consent and compromise, in a case of partition involving rights and interests to a vast amount, admit a large number of unjust, illegal and spurious claims, to the prejudice and manifest injury of his client, without his knowledge, consent and authority ? It is true that courts of equity will be disinclined to disturb a consent or com- promise made by an attorney who is authorized to appear for a party to a suit, unless it will operate unreasonably to the prejudice of the interests of that party ; still, where it works great injustice, equity will give relief from it. In the case of Holker v. Parker, 7 Cranch, 436, the court decided that " although an attorney at law has no right to make a compromise, yet a court will be disinclined to disturb one which was not so unreasonable in itself as not to be exclaimed against by all, and to create an impression that the judgment of the attorney had been imposed upon or not fairly exercised. But where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compro- mise could be fairly made, there can be no hesitation in saying that the compromise being unauthorized, and being therefore void, ought not to bind the injured party. Though it may assume the form of an award or a judg- ment at law, the injured party ought to be relieved against it." This decision speaks the language of sound equity, and, with a proper reference to the relation ex- isting between an attorney and his client, limits the pro- fession to its sphere of representative action, leaving the party represented professionally the indisputable BURLINGTON, MAY, 1849. De Louis v. Meek. right of disposing of his own property according to his will. In contemplation of equity, it is not allowable for attor- neys or agents making contracts or agreement, with or without authority, to act in the making of them malajide, so as injuriously to affect others who stand in such a relation to them as to be affected by the contract or tlie consequences ; as others besides the parties contracting are concerned, it is properly said to be governed by public utility. Story's Eq. Jur., 326, § 133. This principle is fully recognized by the supreme court of Illinois, and is brought within the corrective power of equity jurisdiction. In the case of Truett v. Wainwright et al.^ 4 Gilman, 420, the court say: " The setting aside of judgments, as well in the case where they were procured by the misconduct of the plaintiffs, as where they were obtained by the unauthorized appearance of strangers, rests at last on the ground of fraud. The law looks upon such practices, however far the parties may have been from the thought of actually committing a wrong, as fraudulent, and treats them as such." To prevent injus- tice of this kind is, in the same case, said to be one of the most efficient, and therefore most valuable, powers of a court of equity. The principle that an attorney cannot receive anything but money in satisfaction of a demand put into his hands for collection, without authority to do so from his client, has been decided by the supreme court of this state in the case of Mc Carver v. Nealhj^ 1 G. Greene, 360. In Hop- hms V. Mallard^ ib., 117, it has been decided that an attorney, after the decision of a case in the district court, without authority from his client, is not warranted to follow the case, as such, into the supreme court and attend to it there, when the contract was to attend to it in the district court alone. The books are not destitute of cases and decisions emanating from the best lights of equity jurisprudence, clearly and distinctly showing that attorneys cannot, 72 SUPREME COURT CASES, De Louis v. Meek. witliout the consent and authority of their clients, make contracts or com2:)romises which will operate injuriously upon their interests ; that such acts do not appertain to their professional duty and responsibility. Courts of equity have, when a case is j^roperly presented, enter- tained jiu'isdiction and given relief for wrongs of this description on the ground of fraud, and will still do so. It is contended by the defendants that leave should have been obtained from the court below to file this bill, and that it therefore should not have been entertained. Where a decree or judgment in partition, such as the one com- plained of here, is alleged to have been obtained hy fraud y it may be impeached by an original bill without the leave of the court, the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriet}^ of the decree can be questioned. Mitford's Ch. PI., p. 138. And where a decree has been so obtained, the court will restore the parties to their former situation, whatever their rights may be. Idem^ p. 130. And on the same page, express and j)ointed authority is given for the entertainment of the bill in this case. Mr. Mitford says : " AVhen a decree has been made by consent, and that consent has been fraud- ulently obtained, the party grieved can only be relieved by an original bill." That the remedy in such case is by an original bill, cannot with propriety be questioned, and such is the mode for relief where judgments at law are obtained by fraud. Fermor's case, 2 Coke, p. 77; Ander- son V. Anderson, 8 Ohio, 108; 2 Vesey, 135; 3 John. Ch., 280; 2 Blackf., 271 ; Porter v. Moffatt, Morris, 108. It is contended that the remedy of the complainants is against the attorneys, if they have appeared without autho- rity or acted improperly, so as to injure them in making the compromise and procuring the decree. Such, how- ever, is not the law where their conduct is charged to be fraudulent. If their conduct in procuring the compromise and entry of the decree or judgment thereon be fraudu- lent, the party or client is not bound by it, for it is void BURLINGTON, MAY, 1S49. 73 De Louis v. Meek. in law, particularly if the acts so performed were done in fraudulent confederation and collusion with others who stood in a relation to the proceeding to be benefited there- l)y. Sloo V. Ba?ik of Illinois, 1 Scam., 444, and note; Denton v. Nays, 16 John. Ch., 296. But it is urged, with much api)arent confidence, that tlie complainants here, and particularh^ Wright, are not in ;/ condition to claim relief, for the reason that they have been benefited by the compromise and decree, instead of being- injured. This position is presented on the view, that all that has been charged in the bill be true and sufficient, in point of fact and law, to show that fraudulent claims were allowed, as stated in the bill ; and that the attorneys who acted for Wright in making the compromise did so with- out his knowledge and authority. The bill states that the ''half-breed tract" contained 119,000 acres of land, more or less; that there are but thirty-three or four bona fide claims, or original titles to shares of "half-breeds" thereto, under the treaty and act of Congress ; and that by the compromise or con- sent decree, the claims are made to amount to one hundred and one, by the admission of spm'ious or fraud- ulent titles. Taking the allegations of the bill to be true, it is clear that the complainants must be injured by diminishing their interests in the land, by the increase of the number of claims or shares. The statement in the bill will make a difierence in the amount and value of the interest of the complainants, in diminution of about two- thirds of their rights. We are of the opinion that the allegations of facts in the bill do not show that the complainants were benefited, but that they have been injured substantially and materially. In this view of the case, it is urged that the complainant Wright, having failed to appear in person to take part in the making of the compromise, would have been barred from receiving any portion of the land ; whereas, by the n])pearance and acts of the attorneys for him in the trans- action, he was made a ])artici])ant with others Avho were Vol. II. 6 74 SUPREML COURT CASES, De Louis v. Meek. admitted to the benefits of the compromise and decree. To sustain this position the statute of Iowa, which pro- vides for the partition of lands, is referred to. The 36t]i section of that statute is cited, which provides that " where all the parties in interest shall have heen notified to ap- pear and answer the petition, either by the service of the summons, or by the publication hereinbefore prescribed, the judgment aforesaid shall be binding and conclusive upon all persons whatsoever." We think it all-sufficient on this point to say, that this , statute must be held to apply to all proceedings which may have been had, with its legitimate force and effect, where such proceedings are had bona fnh ; but it never Avas intended to cover up proceedings viala fide. Such a con- struction of it would be at variance with the plainest principles of law and justice. The purifying power of equity jurisprudence will not thus be stayed. To impute to the -legislature a design to sanction fraud by solemn enactment, would reflect upon their integrity. Fraud vitiates the most important judicial acts when found to exist in them, and renders them void upon discovery before the proper tribunal. If Wright had been personally present, or if he had, like De Louis, been represented in making the compro- mise, still if the petitioners, or their attorneys, had acted fraudulently, either by misrepresentation or concealment, so as to deceive and injure them in their rights, they would be entitled to relief in a court of equity. The negligence of Wright is also urged as a reason why he has no equitable claim to relief. There can be no doubt that this would operate against his right to the equitable interposition, if he sought to be relieved from the effect of mere irregularity in the proceedings of the court in making the partition, and when he had failed to be vigilant in asserting his rights. But in this case the bill charges fraud upon the petitioners and attorneys, iii making the compromise, and in procuring the decree to be entered and confirmed, by practising deception upon the court. BURLINGTON, MAY, 1849. 75 De Louis r. Meek. We have not been able to find any authority for requiring a party to be on his guard against fraudulent acts, by com- bination or otherwise, and on failure to prevent which, he will be held as negligent and in default. The spirit of tlie law moves in a pure channel, imparting life and vigor to justice in disposing of the rights of the citizen. A suitor in couVt, or one whose interests are at stake there, has an indisputable right to legal protection, and to be dealt with in all fairness. He will be held to suffer the legitimate effects of his own negligence, but no more. Such is the subtlety of fraud, its infinitude of cliaracter and shape, and its power of insinuation, when conceived and brought to life and action, that the most sacred and best guarded citadels of right and justice among men are not always safe from its invasion. Wright could not be presumed to prevent the fraud by his personal presence and attention, and the law does not recognize this answer to his com- plaint as good. The bill avers that he and De Louis and wife, the complainants, were not in any way participant in the transaction upon which the fraud is charged. This we deem suflicient on this point. In a bill of this kind it cannot be successfully contended that more is required than to state every material fact upon which the complainants intend to offer evidence, dis- tinctly and clearly. A general and substantial charge of such a fact is sufficient. It is not necessary to charge minutely all the circumstances which may conduce to prove the general charge ; these cu'cumstances are for the matter of evidence, which need not be charged in order to let them in as proofs. Story's Eq. PI., p. 24, § 28; W/ielan V. WZ/elan, 3 Cowen, 571. In 6 Howard, 120, Davis v. Teleston et al. , Judge AVoodbury, in delivering the opinion of the court, says : '' The existence of fraud in obtaining the original judgment, which is the other ground assigned for relief, is next to be considered. It is not only alleged generally, but in details, so far as already specified in this opinion : a general allegation of it in the bill would have been sufficient, if so certain as to render the subject matter 76 SUPREME COURT CASES, De Louis v. Meek. of it clear." In support of this position lie cites the cases of Nesmith et at. v. Calvert^ 1 Woodbe & Minet, 44 ; Smith V. Burnham^ 2 Sumner, 612; Jenkins v. Eldridge, '3 Story, 181. In the case at bar the substantive facts upon which fraud is charged are so stated as, with certainty, to render the subject matter of the bill clear as to the allegations therein made. We therefore are of the opinion that the court below should have overruled the demurrer of the defendants and put them upon their answer to the bill upon its merits. In concluding our decision upon this interesting case, we have only to add, that we have given it a most patient and careful investigation, commensurate, we trust, with its importance. We have paused, reflected maturely, and would willingly have avoided a decision which may possibly disturb titles which have become vested under the decree of partition, and open the door for future litigation. Sen- sible that consequences, weighty in their character, may emanate from a decision which will put in issue the facts charged in the bill, still it is no less the duty of this court to decide the questions of law presented in the elaborate arguments according to the principles of equity jurispru- dence. Guided in our determination by the brightest judicial lights of the country, we have endeavored to re- flect the law as we find it in the books. This we consider a duty for which there is no alternative, and paramount to consequences however to be deplored. Avoiding any intimation in relation to the merits of the case, we are of the opinion that the bill shows sufficient equity on its face to put the defendants on answer. The cause will there- fore be remanded to the district com't of Lee county for further proceedings to be had not inconsistent with this opinion. Decree reversed. J. C, Hall and D, Rorer, for appellants. C. J\faso7i and C. ^Valkcr^ lor a})pellee. BURLINGTON, MAY, 1849. 77 Arnold v. Grimes. AENOLD V. GRIMES. Ab a general rnle, courts of law and of chancery have concurrent jurisdiction in matters of fraud. Still in many cases chancery will aflbrd relief against fraud which cannot be remedied at law. At law fraud must be proved ; in equity it may be presumed. A patent for land from the United States, cannot generally be impeached at law for fraud. If fraud appears upon the face of a patent, it is rendered void at law; but when fraud or other defect arises dehors the grant, it is voidable only by suit in chancery. A pre-emption certificate not evidence of legal title, it' a patent is void upon its face, or was issued without authority, or if the state had no title, it may be collaterally impeached at law ; but for the determination of all other defects, resort siiould be had to a court of equity. Error to Des Moines District Court. Opinion by Kinney, J. This was an action of riglit, brought by Grimes against Ai-nold, to recover the north- east quailer of section 36 in township 70, north of range 3 west. A bill of exceptions was taken on the trial by Arnold, from which it appears that Grimes gave in evidence a patent from the United States, dated in 183G, to W. W. Chapman for the land described in the declaration, and also a deed from Chapman to him ; this, witli proof of Arnold's possession, constituted the testimony on the part of the defendant in error. Arnold then in defence offered the record of a petition in chancery, with a decree of the district court of Des Moines county, and a decree of affirmance by the supreme court of Iowa, in a case in which Ai-nold was the com- plainant and said ChajDman and Grimes were defendants. This evidence was not admitted. In order to a pro^^er understanding of the character, bearing and relevancy of the evidence proposed, it becomes necessary to examine the petition and decrees, in which Arnold sought to defeat the fee simple title established in Grimes by patent to SUPREME COURT CASES, Arnold v. Grimes. Chapman, and by deed from Chapman to him. It seems that Arnold, on the 15th day of November, 1841, filed his bill in the district com't of Des Moines county, making Chapman defendant, setting out, among other things, that he settled upon the land (now in controversy) in 1 835. That he occupied it until 1839, when he applied to the proper land officers for a pre-emption under the act of Congress, approved June 22, 1838, entitled " An act to grant pre- emption rights to settlers on the public lands." That Chapman was present at the time an examination was made into his right to a pre-emption, and cross-examined the witnesses. That after a hearing of the whole testimony, the land officers decided that Arnold was entitled to a i")rc- emption, and accordingly issued to him a receiver's receipt upon his paying the purchase money. From this decision, the land officers awarding the pre-emption to Arnold, Chapman appealed to the commissioner of the general land office. The complainant Arnold then sets out that during the summer and fall of 1839, after the appeal of Chapman, that Chapman made alarming and repeated threats, that unless complainant would convey to him a i:)ortion of the laud so pre-empted by complainant^ that he, Chapman, would take complainant's life, and that, under fear and duress, &c., complainant and Chapman arranged their diffi- culties by Arnold's conveying to Chapman twenty-seven acres of the land, and Chapman conveying to Arnold forty acres of other land. The bill charges, in the most emphatic manner, that this conveyance was extorted from Arnold, the complainant, by Cha])man, by reason of duress, fraud and fear of personal violence. The bill then sets out, that complainant again in the summer of 1840 applied for a [)re-emption to the same tract of land under the act of Congress, approved June, 1840, entitled " An act supple- mental to an act entitled an act to grant pre-emj)tion rights to settlers on the public lands, approved June 22, 1838." Tliat Chapman was notified of his intention to make tha application, and that on the 10th of October, 1840, the land officers proceeded to hear the testimony, and decided BURLINGTON, MAY, 1849. Arnold v. Grimes. that complainant was entitled to a pre-emption upon the said tract of land. A receiver's receipt of that date was accordingly issued to him, Chapman not being present. It is then charged in the bill, that Chapman afterwards notified the commissioner of the general land office that he protested against Arnold's pre-emption, and that to set it aside he forwarded to the secretary of the treasury of the United States the deed from Arnold to Chapman for a part of the same land, as conflicting with the oath taken by complainant. That the secretary of the treasury set aside this last entry of Arnold's and retained the two hundred dollars paid as purchase money. The bill, after reciting and charging various acts of fraud and duress on the part of Chapman, in procuring the deed to a portion of said land for the jmrpose of iising it to defeat the complainant in his pre-emption right, prays for a cancellation of the deed from Arnold to Chapman, upon the ground of such duress and fraud. Grimes having been made party, the cause was tried upon the original and supplemental bill, exhibits, answer and evidence, whereupon the court found the bill and exhibits true, and decreed a cancellation of the deed from Arnold to Chapman, conveying the twenty-seven acres mentioned in the bill of Ainiold, and that said Chapman or said Grimes, if in his j)ossession, should deliver up said deed to be cancelled. This decree was affirmed by the supreme court as set out in the bill of exceptions. The defendant below, Arnold, also offered to prove, in connection with said record, tliat the deed referred to in said record, and cancelled by said decree, was the deed used by Chapman to set aside his pre-emption and entry of said land, and that aside from that deed so set aside by the decree, Arnold's entry was in all respects regular. Defendant also gave in evidence the original certificate of his pre-emption purchase as set forth in the record. The plaintiff below objected to said record being admitted to the jiuy, and the court sustained the objection, and ruled that the record andparole evidence should not be given to 80 SUrREME COURT CASES, Arnold v. Grimes. the jury. To tlie ruling of the court excluding this evi- dence the defendant excepted, and assigns the same for error. It wjis urged in the argument of this cause by the coun- sel for the plaintiff in error : First, That courts of law and chancery have concurrent jurisdiction in all cases of fraud ; and, Second, That the evidence was admissible to show fraud on the part of Cliapman in procuring the patent. As a general rule the first proposition is correct, although the books are not barren with exceptions to this ])roposition in its broadest signification. While courts of law may have jurisdiction in cases of fraud, it not unfre- quently happens, from the very circumstances and natm^e of the case, that such courts cannot exercise theii* juris- diction to relieve against it. Fraud in a court of equity properly includes alb acts, omissions and concealments which involve a breach either of legal or equitable duty, trust or confidence justly reposed, and are injurious to another, or by which an un- due or unconscientious advantage is taken of another. Belcher v. Belcher, 10 Terger, 121. " Courts of common law cannot supply defects of will, or rectify mistakes in written agreements or conveyances. If the end proposed is lawful, a court of common law only inquires what acts of will were really exerted, and the deed or covenant is made effectual without regard to consequences. But courts of equity are more at liberty to follow the dictates of refined justice. They consider every deed in its true light as a means employed to bring about some event, and in this light they refuse to give it force any further than is conducive to bring about the proposed end. When from any defect of the common law, want of foresight of any of the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to interfere and supply the defect or furnish the remedy." 2 Paige, 84. But so far as courts of common law ^can exercise their jurisdiction in cases of fraud, it may be said to be concurrent with the equity side of the court. While BURLINGTON, MAY, 1849. 81 Arnold v. Grimes. we would not derogate in the least from the powers of a court of law to investigate fraud, yet cases will occur in which chancery alone can afford relief Thus as one court may be limited, not in its jurisdiction, hut in the applica- tion and extent of it, the other is unrestricted, probing, collecting and relieving fraud, however subtle, injurious or complicated. While at law fraud must be proven, in chancery it may be presumed. Adams on Ejectment, 467. The interposition of the latter is often necessary for the better investigation of truth, and to give more complete pjdress. 3 Blach. Com., 431, 437, 439. A variety of cases has been decided and relief afforded in equity, when, from the nature of the transaction and the situation of the parties, fraud and imposition might be presumed. 3 P. W., 139; Pow. on Con., 21 ; 8 Con., 370. Early in the history of jurisprudence, the administration of justice in the ordinary com'ts was found to be incom- plete, and hence arose the necessity of separate courts of equity, which were organized about the end of the reign of King Edward III., for the purpose of correcting that wherein the law was defective, and matters of fraud were among the chief branches to which the jurisdiction of chan- cery was originally confined. Soon after separate courts of equity were established in England, a fierce struggle arose between the law and equity courts in relation to the jurisdiction and powers of each ; but as we trace the his- tory of English jurisprudence, we find the prejudice which at first existed on the part of the common law courts yielding to the necessity and utility of a distinctive equity jurisprudence. Still even at the present day, it becomes sometimes a serious question to ascertain to what extent courts of law and chancery have concm-rent jurisdiction in cases of fraud. The case at bar presents a forcible illustration of this fjict. Evidence was offered in the court below by the defendants, which was claimed in the argument would have shown that the patent to Chapman was obtained by fraud. This 82 SUPHEME COURT CASES, Arnold v. Grimes. evidence was ruled by the court to be inadmissible; and as we think very correctly, because, as a general rule (and the patent in this case does not fall within the exception), a patent cannot be impeached in a court of law for fraud. This question underwent an able investigation in the supreme court of Xew York in the case of Jackson v. 1 aw- ton, 10 John., 22. That case was an action of ejectment, in which the plaintiff in the court below gave in evidence letters jxJ^tent dated 28th October, 1812. The defendant offered in evidence a patent for the same, but dated 5th March, 1812, which was objected to on the ground that it was subsequent to the patent to the-lessor, and that the recitals it contained, and the allegations of mistake in issuing the prior letters patent, could not be inquired into in an action at law. He also offered parole evidence of payment in full for the lot. The decision of the court in excluding this evidence was fully sustained by the supreme court, and Chief Jus- tice Kent, in delivering the oi)inion, says: — " It has been the uniform practice in our courts, in all questions of title, to look to the elder patent and give it effect. Nor can the court take notice of any equitable claim upon the general government which a third person might have in respect to lands in question prior to issuing the patent. We can only look to the title under the great seal, and so the law was declared in the case of Jackson V. Ingraham, 4 John., 163. The elder patent must there- fore be impeached and set aside, before we can acknow- ledge any title set up under a younger patent ; and the question is whether it could be impeached by parole proof in this suit." If the elder patent was issued by mistake, or upon false suggestions, it is voidable only; and unless letters patent are absolutely void upon the face of them, or the issuing of them was without authority, or was prohibited by statute, they can only be avoided in a regu- lar course of pleading in which the fraud, irregularity or mistake is directly put in issue. The principle has been frequently admitted that the fraud must appear on the face BURLINGTON, MAY, 1849. Arnold v. Grimes. of the patent to render it void in a court of law, and that when the fraud or other defect arises on circumstances dehors the grant, it is Avoidable only by suit. 1 H. & M., 187, 190; 1 Mumf., 134. The regular tribunal for this purpose is chancery, founded on a proceeding by scirie facias^ or by bill, or by infor- mation. It would be against precedent, and of dangerous consequence to title, to permit letters patent, which are solemn grants of record, to be impeached collaterally by parole proof in this action. In Jackson v. Lawton^ the plaintiff in error had a much stronger case than the plaintiff here. In that case, he held a junior patent containing recitals and allegations of mis- take concerning the issuing of the senior patent, and yet the allegations of mistake could not be inquired into at law. Parole proof could not be admitted to show payment. To investigate and settle all these questions he was forced to resort to a com-t of equity. In this case Ai-nold merely held a pre-emption certificate, which is not evidence of legal title, but an incipient step in the progress to title. Possessing but an equitable interest, he attemjjted to in- troduce evidence, not of fraud in Chapman in obtaining the patent, but fraud in him in procuring a deed by which Arnold was defeated in his pre-emption. But if the evi- dence offered hud a tendency to show fraud in procuring the patent, as was claimed in the argument, it was properly rejected, for according to the decisions of the supreme court of the United States, it was not admissible for that purpose. Stringer et al. v. Young, 3 Peters, 320 ; Polk V. Wendall et al., 9 Cranch, 87; 5 Wheat., 293; Board- man et al. v. Reid, 6 Peters, 328 ; Bangel et al. v. Bro- deriek, 13 Peters, 436; ^V^lcox v. Jackson, 13 Peters, 498; Patterson v. Winn, 11 Wheat., 380. In this case, the law, a^ laid down by Chief Justice Kent in the case of Jackson v. Lawton, was not only re- cognized as correct, but adopted by the supreme com't as the established and settled doctrine. The court take occa- sion to speak of the various decisions which have pre- 84 SUPREME COURT CASES, Arnold v. Grimes. vailed in tlie state courts, in relation to the extent that a court of law will go in permitting patents to be collaterally impeached, and while they have diifered, some courts hold- ing that the patent is only prima facie evidence of title, and open to extrinsic evidence to impeach its validity, and others that the defects must appear upon the face of the patent to authorize a court of law to pronounce it invalid, and that unless it do so appear, the patent is only violable, and recourse must be had to chancery. The court dis- poses of all these various decisions, by saying that the question was settled by the supreme court in the case of Folk V. Wendall, 9 Cranch, 87. If any different doctrine than that laid down in the case of Patterson v. Winn has obtained in the supreme court, we think it will be found to have grown out of a construction which the state com'ts had given to their particular laws, which the supreme court Avill follow, especially when made in the state courts respecting title to land. For instance, in Tennesee the courts of law allow the parties in ejectment to go back to the original entry and connect the patent with it. This rule is founded on the land laws of North Carolina, which have been construed in Tennessee to per- mit and require it. Blunt v. Smith et al.^ 7 Wheat., 275. The case of Swayzie v. Burkl et al.^ 12 Peters, 12, referred to by the counsel for the plaintiff in error, was a case that went up to the supreme court from the district of Pennsylvania, where they have no court of equity, and consequently a different rule prevails necessarily, than in those states where equity is administered by courts of chan- cery. Stoddard et al. v. Chambers^ 2 How., 285, also re- ferred to by the counsel for the plaintiff in error, was a case in which the holder of a New Madrid certificate hav- ing a right to locate it only on public lands which had been authorized to be sold, located it on lands which were reserved from sale at the time of issuing the patent, and it was consequently declared void. We do not understand that case as deciding more than this : As the location was made upon lands expressly reserved, no title could pass, BURLINGTON, MAY, 1849. 85 Ainold V. Grimes. niul the patent wa" void, and tliat a title acquired against law was examinable in a court of law. This does not con- flict with the opinion of Chief Jut^tice Kent in the case of Jackson V. Lawton, and with the case o^ Patterson v. Winn, and others cited. After a careful examination of all the authorities bearing upon the question, called upon as we are for the first time to declare the law upon this subject, we unhesitatingly adopt the language of the supreme court in the case of Patterson v. Winn, " That if a patent is absolutely void upon its face, or the issuing thereof was without authority, or was prohibited by statute, or the state had not title, it may be impeached collaterally in a court of law in an action of ejectment ; " but that, for the investigation of all other questions, a cornet of equity is the more eligible tribunal, and they ought to be excluded from a court of law. We do not find anything in the authorities referred to by counsel for the plaintiff in error, when properly under- stood, as opposed materially to those decisions which have influenced us in comin": to our conclusion. Mucli was said at bar in relation to tbe case of Stoddard \. Chambers. We cannot think the points decided in tluit case as conflicting at all with the great cm-rent of authui-- ity upon this subject. The case Avent up upon instructions to the jury in rela- tion to a conflict of title. We have examined the argu- ments of counsel and the case at length, and have not been able to find that the question of fraud was in the case at all, and yet the learned Judge who pronounced the deci- sion takes occasion to express an opinion in relation to patents obtained by fraud, in a manner which does not api)arently harmonize very well with the repeated deci- sions of tlie supreme court. The evidence in this case, therefore, was properly excluded. The facts set up in the defence, are all examinable in a court of equity. To that forum, if fraud has been perpetrated, the plaintiff in error can resort. The door of equity is always open to all en- titled to relief. There fraud maybe corrected, and justice 86 SUPREME COURT CASES, Wright V. Clark. administered. As it is not im]3robable tliat this case may come before the com"t in chancer}^, we have not thought it proper or necessary to jjass upon the relevancy of the testimony offered, nor upon the position assumed in the argument in relation to Arnold's equitable title. The case must be affirmed upon the ground that the patent was not impeachable in this action collaterally for fraud, and there- fore the evidence was correctly excluded. Judgment affirmed. D. Rorer and J. C. Hall, for plaintiff in error. H, W, Starr, for defendant. WRIGHT V. CLARK. A motion for a continuance, on the ground of absent papers, taken by the attorney of tiie party applying,' for the continuance, was correctly refiised, When default is made ))}• the applicant, the judgment of a justice of the peace may be affirmed in the district court. Error to Lee District Court. Opinion by Greene, J. This suit was commenced be- fore a justice of the peace, and taken by appeal to the district court, where the judgment of the justice was affirmed. We learn from the bill of exceptions, that the appellants moved the court for a continuance, and assigned for cause the absence of papers, wliich it appears had been previously taken from the court by tlieir attorney, and had not been returned. The neglect of their own attorney, a delinquency which they had been instninientnl in produc- ing, cannot be considered good ground for a continuance. We therefore think that Iheir application was correctly overruled. Objections are urged to tlie ju:^.gnient of affirmance. It BURLINGTON, MAY, 1849. 87 Wright V. Clark. is contended that there should have been a trial de novo in the district court. But it appears by the bill of excep- tions, that the judgment of the justice was not affii'med until after the appellants declined taking any fui'ther action in the matter. They thus abandoned their appeal, and in effect waived further objection to the judgment of the justice. Such default in the appellants fully justified the judgment of affirmance. That an affirmance is sanc- tioned by statute in such appeal cases sufficiently appears by the article regulating appeals. Rev. Stat., 833. Sec- tions 2, 3, and 16 expressly recognize this practice in the district court. By tliese sections two distinct methods are provided by which such appeals may be disposed of. 1. By an affirmance of the judgment. 2. By a trial anew. Many cases are taken to the district court for the jjur- pose of delay, without even the expectation of disturbing the judgment of the justice, and in such cases it would be a useless expense to parties, a futile detention in the ad- ministration of justice, for courts to award a trial de novo. Hence, where defjiult is made by the appellant, it would be fallacious to adopt that practice, even if the statute ad- mitted of doubt in its construction. But we think the statute leaves no room for doubt, and that it expressly authorizes the course pursued by the court below in this case. Judgment affirmed. J. C. Hall, for plaintiff in error. L. R. Reeves, for defendant. 88 SUPREME COURT CASES, Fletcher v. Conly. FLETCHER v. CONLY. Not necessary to prove the identity of the drawee of an order before it ia offered in evidence. The acceptor of an order becomes liable to the payee named in the order, and a mere technical variance will not defeat his liability. Judgment may be rendered against t'he security in an appeal bond from a , justice of the peace. Error to Des Moines District Court. Opinion by Williams, C. J. William Conly, for the use of Barton T. David, commenced his suit against the defendant, John C. Fletcher, before a justice of the peace. The instrument of writing on which the action is founded is an order drawn by A. H. Judd in favor of William Conly, clerk of the steamer "Amaranth," for the sum of $42, on John C. Fletcher, the defendant. The order bears date May 9, 1842, at St Louis, and was given to pay that amount as money due to the boat from the Marine com- pany. The order was presented to Fletcher, and " Ac- cepted June 13, 1842, J. C. Fletcher." A credit is endorsed on the order for $9, of the same date with the acceptance. The parties appeared before the justice on the day appointed for the hearing, with counsel, the cause was tried, and judgment rendered by the justice against the defendant for the sum of $43.56, debt and interest, with costs of suit. The trial was had before the justice on the ICtli of Oc- tober, 1847 ; on the 1st of November^ 1847, the defendant, with R. S. Adams, who was offered as his security for the purpose, took his appeal to the district court. The bond on file with the record of the case, however, which was executed on taking the appeal, shows that instead of R. S. Adams becoming security for tlie defendant, Charles W. HunI executed it with him as his bail. The cause was tried on the appeal at the April term, 1848, at Burlington, BURLINGTON, MAY, 1849. 89 Fletcher v. Conlv. and a verdict and judgment thereon rendered against the deteudaut, and Charles W. Hunt, his bail on the appeal, tor the sum of $44.50, with costs of suit. As to the plaintiff's right to recover, several questions were raised by defendant's counsel in the court below, and adjudicated. In deciding these, it is contended by defendant's counsel, that there is error in the proceed- ings of that com't. The cause is here on writ of error, and the reversal of the judgment is urged on the following assignments : 1. The court erred in admitting in evidence to the jury the original order and acceptance referred to in the bill of exceptions, in manner and form as stated therein. 2. In ruling out from the jury the evidence of defendant proving the name of the person referred to in said order. 8. In rendering final judgment against said Hunt. The bill of exceptions shows that the defendant's counsel objected to the reading of the order in evidence to the jury, on the ground that before this was done it was necessary the plaintiff should give some evidence, by which to show his identity with the drawee of the order. Tliis objection was overruled by the court, and the order was permitted to go in evidence to the jury. We cannot discover anything erroneous in this ruling of the court. It has been heretofore decided by this court, that the holder or promissee of a promissory note may bring his suit against the promisor and recover judgment in the name which is given to him by the maker of the instrument, when he executes it. And this is in accord- ance with the sound principles of justice. By allowing him to resist a recovery for this, he would be deriving an advantage from his own wrong. The acceptance of the order by Fletcher the defendant, rendered him liable to the plaintiff Conly, for the amount called for by it. It was tantamount to a promise to pay it to him as payee, and no further evidence for the purpose of identifying Conly as the payee was necessary. The order, ])roperly accepted, was there for the jury in the case, pro- VoL. II. " 7 00 SUPREME COURT CASES, Fletcher v. Conlj'. duced by the plaintiff on the trial, and a recovery on it would bar a future action for the same indebtedness. This was all-sufficient for the security of the defendant. After the order and acceptance had been read in evi- dence to the jury, the plaintiff rested his case. The de- fendant then offered a sworn witness to prove that the person referred to in said order is named Conolly and not Conly. This evidence was ruled out by the court, and this ruling is complained of as error, on the ground of variance. The order being before the jury, and the identity of the plaintiff established for all legal purposes, so as to protect the interests of the parties to the action, we are of opinion that the evidence could have no legitimate bearing on the case, as it then was, on the part of plaintiff, submitted to the jury on the instrument itself, without objection being previously made. To avail himself of this objection, on the ground of variance, the defendant should have moved it to the court when the instrument was offered in evidence, before it had been read to the jury, and before the plaintiff had closed his part of the testimony. A practice different from that here enjoined would tend to confusion and privation of right. By permitting the order to go in evidence to the jury as he did, the defendant waived and k;s,t the benefit of this objection. He could not thus, when he iiad recognized the legal position of the plaintiff in the action, introduce his testimony to resist a recovery against him on a point so technical. In deciding this point, we remark also, that on examina- tion of the name, as written in the instrument, it is ex- tremely difficult to say whether it is to be read " Conolly " or " Conly." Which of them it may be is immaterial, as we are of the opinion, as to their pronunciation, that the principle of idem sonaiis may with propriety be applied. The last assignment of error is fully answered by the record. The judgment of the com"t below is in perfect accordance with the requirement of the statute, which authorized judgment to be entered upon an affirmance, BURLINGTON, MAY, 1849. 91 Steamboat " Lake of the Woods" v. Shaw, against the security as well as the defendant in the action. Tlie appeal bond of record in the case shows that Charles W. Hunt executed it as the security of the defendant Fletcher. Judgment aflfirmed. D. Rorer^ for plaintiff in error. M. D. Browning J for defendant. > • > » « — STEAMBOAT "LAKE OF THE WOODS" v. SHAW. An instrument not under seal is not a bond. Where an appeal is allowed under a special statute, without a bond as required, it is not error to dismiss the appeal. But if a recognizance had been filed as authorized by a subsequent general statute, the appeal should not be dismissed. Error to Lee District Court. Opinion by Kinney, J. This was an action instituted before a justice of the peace, under the " Act to provide for the collection of demands against boats and vessels." A judgment was rendered by the justice agninst the boat, whereupon the defendant appealed to the district court. In perfecting his appeal he filed an instrument (not under seal) with approved security, which is designated by the justice as an appeal bond. Upon the case being trans- ferred to the district court, a motion was filed by counsel for the appellee to dismiss the appeal, for the reason that the instrument purporting to be an appeal bond was not such an one as was required by statute. This motion was sustained by the com-c and the appeal was dismissed. By the bill of exceptions the only question presented for our decision is, did the court err in dismissing the appeal, or wa,s there a substantial compliance with the statute by 92 SUPREME COURT CASES, Steamboat " Lake of the Woods" v. Shaw. the plaintiff in filino^ his security before the justice of the peace for an appeal ? The statute upon which this suit was predicated pro- vides, that in all cases arising under the " act, if judgment shall have been rendered in favor of the plaintiff, the master, owner, agent, or consignee of the boat or vessel, or other person interested, may appeal from the judgment by giving bond and security in double the amount sued for," &c. Rev. Stat., 103, § 20. This statute clearly requires that the appealing party shall file with the justice of the peace a bond^ if he wishes to avail himself of the benefit of an appeal. And it is not to be presumed that the legislature, in using the word bond^ intended anytliing else than such an instrument as was a bond at common law, to wit, an instrument under seal. If this statute, then, were to be taken and construed inde- pendent of other statutes, and without reference to subse- quent legislation, (as the instrument in this case was not under seal,) there would be no reason for legal ambiguity, and we could come to no other conclusion than that the court below was right in dismissing the appeal. Although "this statute was made for a particular and specific purpose, as it is remedial in its character, it must be tahen in connection with subsequent statutes, particularly those defining the powers and duties of justices of the peace, and the way and manner of taking appeals to the district court. A remedial statute ought always to receive a liberal contstruction, and it should be, as it is, the tendency of modern decisions, to aid as far as possible the remedy provided by law. Particularly will the courts extend a favorable ear to those who seek by appeal to obtain thjit justice which they may have been legally entitled to, and of which they may have been dej^rived by an erroneous decision of an inferior tribunal. While parties in appeal- ing their cases ought to be held to the requirements of the law, yet courts sliould reluctantly close their doors against those ^\llO have substantially complied with the statute. And this appears to be not only the spirit, but the settled BURLIKGTON, MAY, 1849. ' 93 Steamboat " Lake of the ^Yoof^s" v. Shaw. policy of our law. Rev. Stat., 335, § 7, provides, that " upon the retiu'n of the justice being- filed in the clerk's office, the court shall be possessed of the cause, and shall proceed to liear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice." Other sections of the statute might be quoted, by which it would seem that the legislature intended to extend to parties seeking an appeal great latitude. The 11th section of the same act provides, that no appeal allowed by a justice shall be dismissed for the want of a recognizance, or by reason of a defective one, if the appel- lant will, before the motion to dismiss is determined, enter into a proper recognizance, &c., before the court : extend- ing, as this statute does, every reasonable facility to those who wish to have their legal rights adjudicated in the higher court. But in this case, it is urged by counsel for the defendnnt in error, that notwithstanding this liberal language of the statute, as this was a proceeding under a particular statute designating the instrument of security to the opposite party as a bond, that the court did not err in dismissing the appeal. In the absence of any statute subsequent to the one relied upon, this position would be correct. But a statute passed much later than the one in relation to proceedings against boats and vessels, expressly states, that aivj person aggrieved by any judgment or decision of a justice of the peace, may take his appeal to the district court. He is required to comply with certain conditions, and, among others, he shall enter into a recognizance, which shall Le according to the form laid down in the statute. Rev. Stat., 333, § 34. In this case the recognizance was given under this statute, and according to its provisions. The statute, therefore, having been passed long subse- quent to the one requiring a bond, aiid its language being sufficiently comprehensive to embrace every person taking an appeal from any judgment or decision of a justice, and pointing out as it does that such appeal shall be by recog- 94 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. nizance, we find no difficulty in coming to the conclusion that a sealed instrument was not necessary in this case for the purposes of an appeal. The court erred in dismissing the appeal. Judo^ment reversed. J. C. Hall, for plaintiff in error. J. W. Rankin, for defendant. WRIGHT V. MARSH, LEE & DELAYAN. By an act of Congress, approved June 30, 1834, the qualified interest held by the half-breeds of the Sac and Fox Indians to the half-breed tract in Lee county, was converted into an absolute estate. Records of the territorial district courts of Iowa, not to be considered as foreign in the state courts of Iowa. The Iowa territorial district courts were not of inferior jurisdiction. They were invested with the same jurisdiction of a federal character as the circuit and district courts of the United States, and also the general common law jurisdiction usually imparted to state courts of record. If the district court in partition proceedings was only authorized to act under the special authoritj- conferred by statute, the jurisdiction would be quoad hoc limited and inferior. Courts of equity may exercise general concurrent jurisdiction with courts of law i.i all partition cases at common law. The territorial district courts, independent of the partition act, had general jurisdiction of partition proceedings both at law and in equity. Principles of lavv and equity are united and applied by tiie partition act of Iowa. In partition proceedings the jurisdiction of the district court is threefold: 1. Cumulative and special as created by statute. 2. Having full chnncery attributes, except as otherwise provided by the act. 3. General common law authority, so far as it could be exercised witli the two preceding powers. The jurisdiction of a court can be taken away only by express words. Where the petition contained all the allegations necessary to confer juris- diction, but omits to describe the interest of unknown owners, the defect cannot be collaterally assailed. The petition for partition may be verified by the affidavit of an attorney. BURLINaiON, MAY, 1849. 95 Wright V. JIarsh, Lee & Delavan. Objection to the sufBciency of publication of notice, cannot be taken advan- tage of collaterally. Not necessary to incorporate a copy of notice, or proof of publication, in a record from a court of general jurisdiction ; and if not so incorporated, they will be presumed sufficient. A slight deviation by commissioners, where it is necessary to an equitable partition of the property, is not fatal to the proceedings. The final judgment of partition may properly correct any erroneous com- putation or inr.ccuracy in the report of the commissioners. A partition of real property under the statute is made complete by the judgment without conveyances. In a court of general jurisdiction, authority will be presumed until the con- trary clearly appears. Where the record of a final judgment shows that the subject matter and the parties were properly before the court, the judgment becomes conclusive, and cannot be collaterally impeached. Since the act of Congress of 1834, the half-breed lands in Lee county have been sulject to the laws and courts of Iowa, to the same extent as other lands owned by individuals. No statute can constitutionally derogate a vested right. Error to Lee District Court. Opinion hy Greene, J. This was an action of right, commenced in September 1846, by Marsh, Lee & Delavan agahist Mitchell D. Wright. The land claimed in the de- claration is described as the sonth-east quarter of section 23, and the west half of south-west quarter of section 24, in township 65, north of range 5 west, and is a portion of the land known as the " half-breed tract" in Lee county. Declaration and pleas to the merits tiled in the form provided by the statute. Rev. Stat., 533. Trial before Hon. Geo. H. Williams and a jury was commenced June 2, and on the 10th of the same month a verdict was re- turned, and a judgment thereon rendered for the plaintiffs below. On the trial, it appears that the plaintiffs proved the location of the land in dispute as being comprised within the " half-breed tract," and that the defendant was in l)ossession of it before and after the commencement of this suit, thereupon all the treaties between the United States and the Sac and Fox tribes of Indians, together with the act of Congress, and the territoiiul hiws in relation to the 00 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. cession, transfer and partition of the " half-breed tract," were by agreement admitted in evidence, subject to all legal objections. The record of a judgment under which said tract was divided among the respective claimants, was also admitted in evidence. The defendant interposed several objections to the admission of this record, and these objections comprise the principal questions of law involved in the trial of this cause. Before entering upon the discussion of these questions, we will refer to the various treaties and laws affecting the land in question, and state the leading features of the partition proceedings. The half-breed tract, formerly a portion of the Louisiana purchase, is a reservation of land made by the Sac and Fox tribes of Indians, in a treaty concluded with the United States, August 4, 1824, by which those tribes relin- quished to the United States all their right, title, interest and claim to the lands which the said Sac and Fox tribes have, or claim, within the limits of the state of Missorn-i, which are situated, lying and being between the Missis- sippi and Missom-i rivers, and a line running from the Missouri at the entrance of the Kansas river, north one hundred miles to the north-west corner of the state of Mis- souri, from thence east to the Mississippi. It being under- stood that the small tract of land lying between the rivers Des Moines and Mississippi, and the section of the above line between the Mississippi and the Des Moines, is intended for the use of the half-breeds belonging to the Sac and Fox nation. They holding it, however, by the same title, and in the same manner, that other Indian titles are held. 7 U. S. Stat, at large, 229. The tract of land thus reserved and designated fur the use of the Sac and Fox half-breeds contains about 119,000 acres. It will be ob- served that tliis tract was not in the state of Missouri, and consequently not comprised within the boundaries of land ceded by the above treaty to the United States, and still the reservation contains definite boundaries, and is suffi- ciently appropriated to the use intended. But as it was not comprehended in the cession to the United States, it BURLINGTON, MAY, 1849. Wright V. Marsh, Lee & Delavan. might be asstuned that they acquired no other control or jurisdiction over it than they have in other lands possessed and retained by Indian tribes, and that the Sacs and Foxes held a reversionary interest in the tract upon the extinction of their half-breeds. This state of things, however, did not long continue, for by another treaty concluded at Fort Armstrong, in September 1832, the said half-breed tract was included in the cession of lands then made by those tribes to the United States. 7 U. S. Stat, at large, 374. Hence it must be concluded that, by the treaty of 1824, the Sac and Fox half-breeds acquired a right of property and possession in the reserved tract of land, under the limitation that they should hold " by the same title, and in the same manner, as other Indian lands are held;" and by the treaty of 1832 the cession made by those two tribes released to the United States their reversionary interest, and with it every vestige of their authority and control over the land. By an act of Congress, approved June 30, 1834, the qualified interest held by the half-breeds in the land in question was converted into an absolute estate in fee. This act relinquished and vested in said half-breeds ^' all the right, title and interest which might accrue or revert to the United States to the reservation of land," describing it as reserved by treaty of 1824, and then the act proceeds to vest them " with full power and authority to transfer their portions thereof by sale, devise or descent, according to the laws of Missouri." 4 U. S. Stat, at large, 741, chap. 107. The half-breeds, availing themselves of the right, fee and alienation thus acquired, transferred their interest to a large extent to other individuals. On the 14th of April 1840, Josiah Spalding and twenty- two others filed a petition in the district court of Lee county for a partition of the tract among the respective owners. The petition named Euphrosine Antaya and sev- eral others as defendants. The petitioners set forth that they have a legal title to and are seized in fee of twenty- three and one third full shares, and 5135 acres of land in 98 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. that tract commonly called the '"'' half -breed tracts The petition then describes the situation and boundaries of the tract, alleging that it contains "1 19,000 acres, more or less." The particular claim or share of each petitioner, with the name of the person or persons from whom derived, is defined in the petition; and in referring to the interest of the defendants named in the petition, it avers, that they, their heirs and assigns, and other persons whose names and places of residence are unknown to your petitioners, are tenants in common with your petitioners in said pre- mises. To this petition is appended the affidavit of one of the attorneys for the plaintiffs that the facts therein set forth are true, to the best of his knowledge and belief. A writ of summons was issued and returned that the defendants therein named were '' not found," and thereupon, at the April term of the district court, an order of publication was made. At the October term following, a record entry appears in these words : " On this day came the petitioners by Reid & Johnston, their attorneys, and made proof of the publication of the notice ordered to be made at the April term, 1 840." This notice sets forth, '^ That a petition was filed on &c., by &c., against &c., and is now pending, wherein the petitioners pray that partition may be made of the following real estate, (desci'ibing it,) and the said defendants and all other persons interested in the said pro- perty are requested to appear and answer said petition on &c., or the proceedings had in the cause thereof will be binding and conclusive on them for ever." Attached to » copy of the notice is the affidavit of John H. McKinney, then publisher of the " Iowa Territorial Gazette," in which he swore that the notice had been published in that paper for twelve consecutive weeks, &c. At the said October term, additional parties were on application admitted as plaintiffs to the petition ; and several persons made their appearance as defendants, and time was given them to file their answers. At the April term 1 841 , nil the defendants, named and not named, in the petition, appeared and an- swered, except Euphrosine Antaya, and in their answers BURLINGTON, MAY, 1849. 99 Wright V. Marsh, Lee & Delavan. get forth their respective titles ; and by consent the court tried the cause, and entered a judgment of partition. In setting forth the inducement and the action of the court in the premises, the judgment recites as follows : " In this case said defendants having ajjpeared by their counsel respectively, and filed their answers to the petition, stated and produced their respective claims, and exhibited their proofs, in some instances the original conveyances, and in others authentic copies of conveyances, by which the same are held, and their said respective claims, and those of the petitioners by their counsel res})cctively, being by consent submitted to the court for adjudication and par- tition, according to law, and the court being satisfied by sufiicient proofs that the publication required by the act entitled ' An act to provide for the partition of real pro- perty ' has been duly made, and no other persons known or unknown having appeared or made any claim or objec- tion to said partition, and the said claims of the said par- ties now before the court, petitioners and defendants, and their respective proofs and conveyances, being by the court heard and considered, it is therefore, by the consideration of the court, and with the consent of the said parties, this 8th day of May, a.d. 1841, ordered and adjudged that the claims of rights of the said parties resj3ectively to the undivided j)ortions of the land mentioned and described in said petition, amount in the whole to one hundred and one equal portions, and that of these, Marsh, Lee & Delavan, trustees for the claimants under the articles of association dated October 22, 1836, filed in this case, and as trustees for persons interested under s'aid articles, are entitled to forty-one shares," &.c. The judgment then sets forth the undivided portions to which the other defendants and the petitioners were respectively entitled, and ordered that they should be confirmed accordingly, and that partition of the tract should be equally and fairly nuide among the parties, petitioners and defendants, to the exclusion of all other persons. The judgment designated Samuel B. Ayers, Harmon Booth and Joseph Webster, as commissioners to 100 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. make the partition into one hundred and one sliares of equal value, and report the same to the court for confirm- ation. At the October term, 1841, of said court, the com- missioners presented their report, dividing the land into sliares as they had been directed, excepting certain islands in the Mississippi and Des Moines rivers, which are re- ported to be so situated that partition could not be made of them without prejudice to the owners, and they there- fore recommend that they be sold. By consent of counsel and all the parties concerned, the court then ordered, ad- juged and decreed that the report and all things therein contained be ratified and confirmed ; also ordered the allotment of shares to be made by the commissioners with specific directions. The judgment or decree of partition, the report of the commissioners designating particular property under each share as numbered and divided by them, the final judgment of confirmation, and the allotment of the various shares to the respective owners are set forth in detail and with clearness on the record. So far as this record discloses the proceedings, they appear to have been conducted with fairness, deliberation, and a par- ticular regard to the regulations of the statute. Every important order in the partition appears to have been made by consent of all the joarties concerned. The record shows that the land in question is included in that which was set apart by the allotments under the partition to the plaintiffs below, and this constituted the only evidence of their title to the premises. The principal questions raised for adjudication are in relation to the admissibility of this record as evidence. We will proceed to consider the various objections urged to the partition. 1. It is contended that the territorial court, which rendered the judgment of partition, must be considered under our state organization as a foreign court. As the authentication of the record was not questioned in the court below, this point cannot be entertained as an objection to the record in this particular. But the forei"!! character of the territorial court is also ur2:cd BURLINGTON, MAY, 1849. 101 Wright V. Marsh, Lee & Delavan. to detract from the authenticity and conclusiveness of the record, to remove those presumptions of law which would otherwise applj^ in its favor. It may well be questioned whether this would be the effect of the partition record, even if it should be considered the adjudication of a foreign court. Such, at least, could not be the effect if we : hnuld be governed by the weight of English authorities. The decisions of the American courts upon this jDoint have been various and conflicting. All agree, however, that the record of a decree or judgment would be at least prima facie evidence of correctness, and many have affirmed the English doctrine that it would be conclusive if the adju- dication was definitive and made by a court of competent jurisdiction. But the determination of this question is not necessarily involved in the trial of this cause. We can l;y no means arrive at the concltision that our terri- torial court should be regarded as a foreign tribunal, and as a consequence, it is unnecessary in this case to decide what would be the effect of a record from a foreign court. We have carefully examined the arguments and authorities v.hich counsel have ingeniously presented, in attemj)ting 1 show that the district courts of the territory of Iowa should be adjudged as foreign when records emanate from them to the district courts of the state of Iowa ; but we can see no good reason, in fact or in law, for thus regard- ing them. In what way could this change in our form of government so completely estrange and alienate our terri- torial courts ? By this change our former courts were not transferred to a foreign soil, nor their records entrusted to foreign hands. No rights which had been acquired, no j)roceedings which had been perfected or commenced under our territorial courts, were relinquished or abated by our assuming state sovereignty. Under the 13th article of cm* state constitution, judicial proceedings, claims and rights are continued as if no change had taken place in the government ; the same laws were continued in force until repealed, and even the same officers, civil and mili- tary, are authorized to act until suspended. Independent 102 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. of tlie connecting link existing between our territorial and state courts ex necessitate rei, we find them bound together under the same sovereignty by constitutional provision. So far from having been expatriated by our constitution and new form of government, it will be observed that our territorial courts were not at first even suspended, but were ultimately merged and jDerpetuated into state courts. Proceedings commenced in the former were conducted to final judgment in the latter. Even the judges and clerks in the one were continued for a time in the other. They were both constituted within the same territorial limits, appointed to adjudicate within the same venues, upon the same realty, and among the same people ; and thus far the records of the two courts have generally been entered in the same books. They are preserved in the same offices, under the charge and keeping of the same clerks, and are alike subject to the inspection of our citizens. Why, then, should the records of our former courts be regarded as foreign by our present courts? Those of our territorial courts, except in cases of a strictly federal character or jurisdiction, have become the property of the state by appro- priate and legitimate descent. They are properly retained and controlled b}^ our state courts, and copies may be authenticated by them for the use of those who may be interested in them. In thus concluding that our territorial records are as much under our state jurisdiction, and are as domestic in then* character, as are those of our state courts, we have not overlooked the decision of the supreme court of the United States in Hunt v. Palao, 4 Howard, 589. This was a case of federal jurisdiction, cognizable only before a court of the United States — a case over which no state could exercise authority or control, and consequently it is not applicable to the question at bar. An act of Congress, approved February 22, 1848, in relation to the records of oui- territorial courts, recognizes the transfer of all such records to the state, excepting the records of a federal char- acter, and even those the respective clerks are authorized to retain, and, upon np})licatiuul)yany person interested, make BURLINGTON, MAY, 1849. 103 Wright V. Marsh, Lee & Delavan. and certify a full and complete copy of the same to the clerk of the district court of the United States, so far as it can be done without mutilating the records of the terri- torial courts. See Laws of 30th Con., 1st sess., p. 8, § 3. These various considerations, we think, clearly establish the domestic character of our territorial courts as prede- cessors of our state courts. Beattij v. Ross^ 1 Branch, 188. 2. It is urged that the district court which rendered the decree was one of inferior and limited jurisdiction. In support of this position, counsel have cited 2 McLean, 126 ; ] Kent's Com., 303; 2 U. S. Cond., 37, 405; 2 Howard U. S., 21 ; 6 ih.^ 39. These authorities pertain exclusively to the jurisdiction of the circuit and district courts of the United States, and have no bearing whatever upon the territorial district courts, nor do the authorities cited hold that those United States courts are of inferior jurisdiction. Tliey are limited, but not inferior. Their proceedings, therefore, are not nullities, even if their jurisdiction does not appear of record, and if not reversed for that defect, those proceedings are conclusive evidence between parties and privies. McCormick v. Sullwant, 10 Wheat., 192; Turner v. Bank of X. A., 4 Dallas, 8; Reed v. Vaughn^ 1 Mis., 447. If, then, the circuit and district courts of the United States are not of inferior jurisdiction, a fortiori the territorial com-ts are not, for the latter are not only invested with the same extent of jurisdiction as the former in pro- ceedings of a federal character — Lorimer v. State Bank of III., Morris, 223 — but also the general common law juris- diction usually imparted to state courts of record. The 9th section of the Iowa organic law provides, that tlie several courts thereby created, both ap2)ellate and original, shall be as limited by law, and that the supreme and district courts respectively shall have a chancery as well as a common law jurisdiction. The territorial district courts, in addition to the f^'l'M-al powers conferred upon them, were invested with extended and general jurisdiction over actions real, persouiw and mixed. Under tliis general jurijjdiction they were authorized to try and determine, 104 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. according to the course of the common law, all ordinary actions, both local and transitory. They were also invested with a special jurisdiction, conferred by legislative enact- ment, in proceedings which could not be entertained as actions at common law. The term inferior courts, in a strict and technical sense, is only applicable to courts of a limited and special jurisdiction, in which the proceedings are not according to the course of the common law, but detined by statutory regulations. It must be obvious that our territorial district courts cannot be included under that tei'm. They were endowed with all the general powei's and universal attributes of common law jurisdiction. Tlieir authority was general, and superior to all but the sui)reme court. Justices of the peace, county commissioners and probate courts, were all subordinate and inferior to them. In one sense, in one connection only, can they be regarded as inferior tribunals, and that is in relation to the supreme or appellate courts before which their judgments might be taken for revision. Still their powers are general, their jurisdiction in legal contemplation is not limited or inferior. Many authorities in relation to superior and inferior courts may be found collected in 3 Cow & Hill's Notes to Phil. Ev. n. n. 691-4. But it is contended that, if the district court which rendered the decree did possess general jurisdiction, it acted in the partition proceedings under special authority conferred by statute, and was con- sequently quoad hoc an inferior or limited court. If in such proceedings the court possessed no authority beyond that conferred by statute, this position could not be con- troverted. And if the court was thus limited in jurisdic- tion, it will not be questioned that the course prescribed by the statute ought to have been observed with at least substantial exactness, and every fact necessary to show jurisdiction ought to appear on the face of the proceedings. Under this view of the case, various objections are urged to show that the proceedings were not in accordance with the partition act, and consequently nugatory. 3. As preliminary to these objections, it is averred, that BURLINGTON, MAY, 1849. 105 Wright V. Marsh, Lee & Delavan. tlie district court, in making the partition, could only act as a court of chancery. This position is assumed in order to show that the proceedings should have been conducted within the limits, and under the regulations, of equity jurisprudence. It may be well to remark upon the powers of the district court, independent of the statutes. The doctrine is now universally conceded, that courts of equity may exercise a general concurrent jurisdiction with courts of law in all partition cases. Nor is equity jurisdiction limited to such cases only as are relievable at law, but in making partition, equity will generally follow the anahi- gies of the law, and extend relief in all cases where, by rules of law, it would be regarded as appropriate, and also in many cases where those rules would not fm'uish a plain, complete and adequate remedy. Mitford's Eq. PL, 209 ; 1 Story's Eq. Jur., 646, 658. At common law the writ of partition may be traced to a very remote period, but the benelits of that writ could only be extended to coparceners, until 31 and 32 Henry VIIL, c. c. 1 and 32, by which joint tenants and tenants in common might be required by writ of partition to divide their lands. 2 Black. Com., 185, 194. A jm"isdictionthus extended to common law courts, by statutes of so old a date, since which much that is common law has taken its origin, it may well be assumed that common law com'ts might inherently exercise that extended jurisdiction. This conclusion is necessarily embraced in that advanced by Judge Story and other elementary writers, that in parti- tion proceedings, courts of law have general concurrent jurisdiction with courts of equity. Story's Eq. Jur., 658. And in either court, principles of common law would ob- tain in testing the title or rights of the respective claim- ants before entering a decree or judgment of partition. We are of the opinion, then, that our territorial district courts, independent of the partition act, had general juris- diction of partition proceedings, both at law and in equity. The question now recurs, does the statute providing for the partition of real property, Rev. Stat., 458, confine cases Vol. II. 8 106 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan, of partition within tlie limits of equitable jurisdiction ? We are enable to find any clause in that statute wbicb will justify an affirmative answer. It is neither made an action at law nor a proceeding in chancery, but the prin- ciples of both are united and applied to the statute regula- tions. The act provides for a petition and answer, and other proceedings, as in equity. It also provides for a ser- vice by summons, for issues of fact, and trials by jury, for the rendering of judgments, and for writs and assignments of errors, and other proceedings, as at law — §§ 2, 10, 12, 13, 14, 16, 19, 36, 49, 56, 63, 64 and 65. Section 56 pro- vides that the proceedings authorized by the act are in- tended as a substitute for all partitions in chancery, as well as at law, and the court is authorized to exercise equity powers except as therein otherwise provided. The act generally contemplates the exercise of common law powers. The last four sections of the statute clearly authorize proceedings at law. Section 02 declares, " That if the petitioners for any partition become nonsuit, or suffer a discontinuance, or a verdict shall pass against them, or judgment shall be rendered against them on de- murrer, they shall pay costs, to be recovered and collected as in personal actions."" The next section provides, " That upon any final judgment, rendered pursuant to the provi- sions of the act, a writ of error may be brought, ^c, in the same manner as in personal actions.^'' And the last sec- tion provides, that "judgment may be given by the court above, either for affirmance or reversal in part or in whole, or a new adjudication of the matter may be directed in the com't below. The proceedings in other respects shall be the same as in personal actions." Evidently this act does not sustain the point made by counsel, that in making par- tition the court was confined to chancery jurisdiction. The jurisdiction of the court was threefold: 1. It was invested with all the cumulative and special powers created by the statute. 2. It retained all chancery attributes except as otherwise provided by the act. 3. It retained all its in- herent common law authority so far as it could be exer- BURLINGTON, MAY, 1849. 107 Wright V. Marsh, Lee & Delavan. cised consistently witli the two preceding powers. The three jurisdictions are comprised in and are more or less exercised in all partition suits under that act. The re- quirements of the statute, so far as they are especially substituted for equity and common law proceedings, are paramount, but beyond such special substitution, law and chancery interpose, with unabated and general concurrent authority. Hence, we conclude that even in cases of par- tition under our statute, the district court cannot be con- sidered quoad hoc, as inferior or limited. The doctrine will not be questioned that the general jurisdiction of a court cannot be taken away unless by express words of exclu- sion. The statute in question has only enlarged and united powers previously existing in the com-t, and modi- fied the proceedings under those powers, and therefore there is no reason why the same liberal rule should not be applicable to support the presumption that the court acted correctly and by competent authority. But before deciding upon the admissibility and conclu- siveness of the partition record, it may be well to examine the several objections urged to the partition proceedings. One j:)oint made is, that the jjetition does not describe the respective interests of all the joint owners ; nor, if their names were unknown, does it state that fact. In this par- ticular, it is true, the petition is not sufficiently specific and certain, but this is far from being a fatal defect, or one which can involve a question of jm-isdiction. The petition described the land with certainty, averred that the parties owned it as tenants in common, and prayed for a partition thereof among the respective owners. In a word, the peti- tion contained all the allegations necessary to confer juris- diction upon the court to act in the premises, but it omits to describe the interest of unknown owners. Such a de- fect in form might have been good cause for demurrer, and if demurred to, might have been amended to a literal compliance with the statute. But it is by no means a defect which could impeach the proceedings, or be taken advantage of after judgment, much less does it amount to 108 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. a defect which can be collaterally assailed. We have carefully examined the authorities cited by counsel upon this point, but we can see nothing in them inimical to our conclusion. Another objection presented is, that the petition was not verified by such an affidavit as the law requires. All that the statute directs upon this point is, that " the petition shall be verified by affidavit." Rev. Stat., 459, § 2. We have already noticed that the petition was verified by the affidavit of one of the attorneys. But it is alleged that such an affidavit is not reconcilable with the object and spirit of the statute ; that it should have been made by the plaintifi's named in the petition, or at least by some of them. It would be difficult, we think, to apply any rule of con- struction to the statute which can justify this position. The act does not require, nor can we see any necessity for its . requiring, the affidavit to be made by the petitioners them- selves. If a petition is verified by affidavit, it is strictly conformable to the statute, and it can make no difi'erence whether it is made by a petitioner or by his attorney, or by any other person who may feel himself sufficiently acquainted with the facts averred to justify him in making the affidavit. But if the affidavit was insufficient, the objection comes too late. It was not an element of juris- diction without which the court could not act. It was merely a formal part of the petition, a j)reliminary form in commencing the suit, and if objectionable or insufficient, the question should have been raised before answers were filed. After answering, it must be considered as waived. Besides, if the affidavit was defectively made, it but amounts to one of those irregularities which could not be collater- ally questioned, even if the proceedings had taken place before an inferior tribunal. It is next objected that the court acquired no jurisdiction over the unknown owners in consequence of the defective publication. The record, it is true, does not disclose publication to the full extent required by the 9th section of the partition act. That sec- tion provides for the publication of notice for twelve weeks BURLINGTON, MAY, 1849. 109 Wright V. Marsh, Lee & Delavan. successively .in some newspaper printed most convenient to the place wliere the com-t was held, and for four suc- cessive weeks in some newspaper printed at the seat of government. The twelve weeks publication appears to have been regularly made, but the record is silent as to the other,* with the exception of a recital in the partition judgment that the petitioners, by their counsel, made proof of the publication of the notice previously ordered by the court. It appears, then, that proof of publication was before the court. It was considered, and the publication adjudged, to be such as was required by law. It became a decision of that court upon a matter coram judice, and whether made upon sufficient or insufficient proof, whether the court decided correctly or erroneously as to the adequacy of the publication, it cannot, in this proceeding, become a subject of inquiry. It was a question which that court alone had the original right to determine, and within its legitimate jurisdiction did decide that the publication was sufficient. If erroneous, the party affected by it had his remedy ; he could have had the decision revised and cor- rected on writ of error, and upon that writ only was the question subject to re-examination. As the record comes from a court of general jurisdiction, it did not become necessary to incorporate into it a copy of the notice or the proof of publication. Without these, the record would have been sufficiently authentic and conclusive. The authority of the court over the subject matter and over the parties, and the correctness of the proceedings, would have been favored by all the force of legal presumption. Objections are also urged to the proceedings of the commissioners in neglecting to follow the order under which they were appointed and the judgment of partition. * The otlier notice for four week?, required by the statute, was published in the " Iowa Patriot," and the proof of publication was properly made and filed ; but was left out of the transcript by the oversight of the clerk of the district court in making out the copy of the proceedings in the partition suit for the supreme court, in this action of right. 110 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. But we can see nothing in those deviations which should invalidate the proceedings, especially as they were indis- pensable to a just and equitable partition of the property, were made by consent of all parties who had adduced evidence of title before the commissioners, or who were known to be legally interested in the tract, and were fully confirmed by the court. The final judgment is also assailed as being a departure from the commissioners' report. We can discern no found- ation for this objection. The court corrected an erroneous computation made by the commissioners as to the number of shares, by deducting small portions from tliree of the defendants by their consent, and by consent of all parties. Without such correction, inaccuracy, injustice, and confu- sion would have resulted from a confirmation of the report ; but with it the rights and claims of all were satisfactorily adjusted. Such a correction cannot be regarded as a de- parture, as a deviation, or as an unwarranted exercise of judicial powers. The want of conveyances to the respective proprietors, under the partition, is also presented as a deficiency. Although this question cannot affect the admissibility of the record, it may be well to determine whether deeds are necessary in a partition of real estate, under the statute. A partition in equity proceeds upon conveyances to be executed by the parties, or in default by commissioners. Mc Clay Y.Bowman, 1 Littel,248; 1 Story's Eq. Jur., § 652. But a j)artition at law operates by virtue of the judgment. A final judgment of partition is conclusive evidence of title in the parties to the extent therein designated. The statute does not authorize a decree, but it expressly requires a judgment of partition, and a judgment of confirmation. Section 19, Rev. Stat., 461, enacts, that " after all the shares and interests shall have been settled in any of the methods aforesaid, judgment shall be rendered confirming such shares and interests, and that partition be made accord- ingly." Section 35 provides, that " upon the report of com- missioners being confirmed, judgment shall thereupon be BURLINGTON, MAY, 1849. Ill Wright V. Marsh, Lee & Delavan. rendered that such partition be firm and effectual for ever ; " and the next section concludes, that the judgment afore- said shall be binding and conclusive upon all jDersons whatsoever. It is a fact worthy of notice, that the word decree is not used in the statute to designate any order or decision to be made by a court in partition proceedings. Therefore the record before us must be considered that of a judgment, and as such, is per se conclusive evidence of the rights and title therein adjudged without the formality of conveyances. We are aware that in our state an order of partition is usually denominated a " decree " or " decree of partition," but such designation is not authorized by the statute nor by the character of the proceedings. Though in a measure obtained by the interposition of chancery prac- tice, it is nevertheless a judgment of partition, and such should be its style. Rev. Stat., §§ 62, 63, 64, 65. We have thus separately noticed these various objections to the record of partition, in order to settle the practice in future analogous cases. But they might have been collectively and more summarily disposed of on general principles. Collaterally such objection can never prove availing, espe^ cially when applied to the record from a court of general jurisdiction in which power and authority will be presumed until the contrary clearly appears. In Shiimrvay v. Still- man, 4 Cowen, 294, 296, in an action of debt, or a judg- ment from the common pleas of Massachusetts, it was held, " Every presumption is in favor of the jm-isdiction of the court, the record is prima facie evidence of it, and will be held conclusive until clearly and explicitly disproved." So also in Mills v. Martin, 19 John., 33; Thomas v. Robinson, 3 Wend., 267; Peacock v. Bell, 1 Saund., 73, et seg. ; Wheeler v. Raymond, 8 Cow., 311; Smith v. Rhoads, 1 Day, 168; Granger v. Clarke, 9 Shep., 128; Van Dyke v. Bastedo, 3 Greene, 224. We regard it, then, as well settled that a want of juris- diction will not be presumed in a com-t of general authority, and where the record from such a com*t is silent or does not aver all the facts necessary to show that jurisdiction 112 SUPREME COURT CASES, Wright V. Marsh, Lee & Dehivan. was properly exercised, it will still bo presumed that the court legally acquired power over the suhject matter, and over the parties. That the subject matter of partition was cognizable by the district court has not been controverted, and we think it has been sufficiently demonstrated that the court has both general and superior original jurisdiction over such proceedings. The sufficiency of the petition in form and substance, and in verification ; the adequacy of the publication, which the statute declares shall be considered equivalent in all respects to a personal service of the summons, (Rev. Stat., 460, § 9;) and the correct- ness of all other proceedings in the case, to give the court jurisdiction not only in rem but also in personam^ were questions within the exclusive purview of that court ; they are solemnly adjudicated, and that judgment, in the language of the statute, " shall be binding and conclusive upon all persons whatever." Rev. Stat., 462, § 36. The correctness of that judgment having never been directly questioned before an appellate court, the rights of property resulting from it should be admitted as valid, conclusive and effectual. Every man interested in the property had ample opportunity to appear and assert his rights. The door was open to all, the notice was extended to all, an abundance of time given for all to prove their claims and to controvert the rights of others. In justice to the pro- ceedings, it must be observed, that they appear to have been conducted with calmness, with deliberation, and with a commendable regard to the requirements of law and the ends of justice. The parties as owners of the '' half-breed tract " appear from the record to have been represented \ij counsel with but one "exception, and her rights appear to have been protected by the court ; and the fact that the judgment was rendered by general consent when the parties were numerous, and their rights greatly conflicting, gives strength to the conclusion that the rights of all were con- sulted in the partition, and that all things of a defective or erroneous character were waived. If any one was aggrieved by the proceedings, he had an opportunity to BURLINGTON", MAY, 1849, 113 Wright V. Marsh, Lee & Delavan. move for an arrest, or that they he set aside for any irre- gularity or neglect to conduct them according to the rules of law ; or if the court decided erroneously in any par- ticular, the parties injuriously affected thereby had their remedy. A writ of error from the supreme court might have been sued out within the time wisely limited by law, and under that writ any defective action of the court might have been reversed and corrected. But the time pre- scribed by law for the motion, and for the writ of error, was suffered to pass, and by silent acquiescence, by general tacit consent, the judgment has become invulnerable, except for fraud, even against a direct assault upon it, before an appellate forum. If thus removed beyond judicial control, and rendered irreversible in any direct proceeding, mani- festly there could be no assailable point in the judgment when collaterally drawn in question. If judgments and decrees could be thus collaterally avoided, there would be no certainty, no security injudicial actions. No confidence could be reposed in titles thus acquired, no protection afforded to those who might innocently purchase under them. By the solemn judgment of a competent tribunal, a large tract of land might be set apart to legal owners, under them many others acquire title, make valuable and extensive improvements, and after reposing in the quiet enjoyment of theh i30ssessions for many years, have all their rights to the property involved in doubt or destroj^ed by an evasive collateral proceeding at law. Under so pernicious a doctrine, general distrust and odium would attach to judgment titles. In a collateral proceeding before one court to-day, a judgment, if merely voidable, might be declared a nullity, but to-morrow, before some other tribunal, be adjudged good and valid ; and thus end- less disputes and uncertainty, rank injustice and oppres- sion, would be encouraged by the tribunals of justice, which were instituted to suppress these evils. But fortunately for the rights of citizens and the security of property, such a rule has been but seldom recognized by enlightened courts. There is perhaps no featm-e in our judicial system 114 SUPREME COUPtT CASES, Wright V. Marsh, Lee & Delavan. more wortliy of commendation tlian that all decisions made by constitutional authority are final, conclusive, and effectual for ever, unless the injm*ed party directly and properly object to the decision before an appellate power, within the time judiciously limited by law. This doctrine has been fully confirmed, and its correctness most for- cibly illustrated, by the highest American com-ts. Voorhees V. Bank of U. S., 10 Peters, 449. The leading principles decided in this case were based upon long established and even elementary rules of common law, and were made conformable to many previous decisions by the same ex- alted tribunal. In Kempe's, Lessee v. Kennedy^ 5 Cranch, 173, 187, the doctrine emanates from the supreme court by Chief Justice Marshall, that the inferior court of com- mon pleas for a county in New Jersey possessed general jurisdiction, and although its judgment was erroneous, it was not void. In Stillman v. Maij, 6 Cranch, 267, the record before the court did not contain the requisite aver- ments of jurisdiction, but it was still held obligatory as a decree. In Williams v. Ameroyd, 7 Cranch, 424, 434, Chief Justice Marshall says, " That the sentence is avowedly made under a decree subversive of the law of nations, will not help the appellant's case in a court which cannot revise, correct, or even examine that sentence." If an erroneous judgment binds the property on which it acts, it will not bind that property the less because that error is apparent; of that error advantage can be taken only in a court which is capable of correcting it. The above cases in Cranch are reviewed in Ex parte Watkins, 3 Peters, 193, and fully confirmed; and in a more recent case the same principles were elaborately discussed, and re-affirmed in an able opinion by Judge Baldwin, whose wisdom and correctness in all jurisdictional questions is universally conceded. Grignon v. Astor, 2 How. U. S., 319. By applying to the record in the case at bar the principles so clearly settled and deliberately determined by the supreme court of the United States, its admissibility cannot be doubted. It discloses more than is essential for a record from a court BURLINGTON, MAY, 1849. 115 Wright V. Marsh, Lee & Delavan. of general jurisdiction. It was enougli for the record to show the subject matter and the parties before the court, the exercise of judicial power in relation to them, and a final judgment. If no appeal is taken, or writ of error sued out within the limitation prescribed by statute, that judgment becomes conclusive. The record of it is absolute and incontrovertible verity, and the judgment having been rendered by a court of competent jurisdiction over the subject matter, can be impeached only by showing fraud. In short, no other than an appellate power can inspect the proceedings behind the judgment. And these principles are especially settled in their application to courts of record which possess an original general juris- diction, the j)Ower to hear and determine causes generally. Such a court possesses within itself, as a part of its or- ganization, the power to decide all presented questions of jiu-isdiction within its authority, and to exercise that juris- diction to a final judgment, which becomes conclusive of all matters decided upon within its jurisdiction, without setting forth in the proceedings the facts, circumstances or evidence upon which the cause was determined. 2 How. U. S., 340, 341. Apply these comprehensive and well settled prijiciples to the partition record in this case, and all doubt as to its verity, conclusiveness and admissibility must be removed. The case of Denning v. Corwin, 11 Wen., 647, does not, it is true, altogether harmonize with this conclusion, and with what must be regarded as the well-established doctrine at this day, even in the New York courts. But if that case is not virtually overruled, we could give it no force as authority to the question at bar. It was made upon a different statute and upon a different state of facts. An affidavit that the owners were unknown was required before an order of publication, but the record was silent as to the affidavit and publication. In this state no such affidavit, preliminary to an order of publication, is required, and the record before us is by no means silent as to publication. In that case no proof of publication 116 SUPKEME COURT CASES, Wright V Marsh, Lee & Delavan. appeared of record ; in this tlie record sets forth the proofs and publication, but they are alleged to be insufficient and defective, consequently they could be regarded even in New York only as error, as voidable but not void. 8 Cow. , 370. Denning v. Corwin appears to have been decided on the ground of limited jurisdiction, but even on thai, ground, the case seems to have lost force and authority in subsequent decisions. In Foot v. Stevens, 17 Wend., 483, the principle prevailed that parties against whom judgment was rendered shall be presumed to have been regularly before the court unless the contrary expressly appears; and in Hart v. Seixas, 21 Wend., 40, the court questioned Denning v. Corwin, and held that the parti- tion in that case should have been considered voidable only and not void; and in Bloom v. Burdick, 1 Hill, 141, that case is declared to have been overruled so far as the doctrine is asserted that the judgment of a superior court will be void if the record does not show jurisdiction. The proof of notice required in Denning v. Corwin, is also virtually overruled in Butler v. Mayor of N. Y., 1 Hill, 489, in which it was held that due notice to the parties of the time and place appointed for the meeting of arbi- trators is to be presumed until proved that it was not given. In this case, Judge Cowen remarks, " Even that the party has had no notice would be an oljjection never yet, I apprehend, allowed in such case against the infer- ence arising on the record, though I admit there are dicta which countenance its reception." In Cole v. Hall, 2 Hill, 627, we find a case in point. This was an action of ejectment, in which the defendant offered the record of a partition judgment against unknown owners who made default, and a partition was awarded. The com- missioners reported, and set off 358 acres of the land as the plaintiff's half. The report was confirmed, and judgment of partition rendered, with an award of $29.28 costs against the unknown owners, and their respective shares were sold on a fi. fa. for that sum to the plain- tiff in the i)nrtition suit. It was held that in that suit BURLINGTON, MAY, 1849. 117 Wright V. Marsh, Lee & Delavan. the plaintiff's seizin might have been contested, but not in the collateral proceedings. And in relation to the other objections, Judge Co wen, in delivering the opinion of the court, said, " But it was said on the argument that no proper affidavit was made, nor any notice published, and that only two of the commissioners met and deliberated. It would be enough to answer that here was jurisdiction and a judgment, that such matters of mere irregularity cannot be enquired into collaterally." And in a case still more recent, from New York, principles are recognized which show an affirmance of the above doctrine. It is de- clared in Bruen v. Hone^ 2 Barb., 596, that a judgment or decree of a court possessing competent jurisdiction is final, not only upon matters actually decided, but also upon matters which the parties to the cause might have had de- cided. The court also held, that "after a recovery by pro- cess of law, there must be an end of litigation, otherwise there will be no security for any person." And again, they assert, "It is evidently proper to prescribe some period to controversies of this sort, and what period can be more fit and proper than that which affords a fair and full opportunity to examine and decide all their claims ?" Surely a rule so salutary, so indispensable to the protection of property in the hands of innocent purchasers, so vital to the stability of courts and the efficient administration of justice, should not be limited to controversies of any par- ticular sort ; it should be universal in its application. It is true, that if the proceedings from a court disclose an absolute want of jurisdiction over the subject matter, or over the parties, no limitation of time could impart vitality to them. But a want of jurisdiction cannot be presumed. The law presumes that all courts proceed with authority and correctness. This presumption applies with jDeculiar force to courts of general jurisdiction, but when a court proceeds merely in a ministerial capacity, or under a limited authority, defined and regulated by statute, and when certain things must appear to have been done, as preliminary to jurisdiction, or the exercise of powers, such 118 SUPREME COURT CASES, Wright V. Marsh, Lee & Delavan. presumption does not obtain, or at least not to tlie same extent, and therefore authorities in relation to such minis- terial and inferior proceedings can have no bearing ujjon the present record, and need not be examined. Under the foregoing principles of law, which we regard as well set- tled and influenced by the various authorities cited at bar, we are united in the conclusion that the partition record was properl)^ admitted, and became conclusive evidence of the legal rights and title of the respective parties as therein designated ; and as all persons were made parties to the partition suit, all are estopped by the record in this proceeding. In arriving at this conclusion, it necessarily follows that we attach no importance to the objection that the lialf-breed tract was Indian land, and not subject to the territorial legislation of Iowa. We think that the state- ment of facts, and the reference to the treaties and laws of Congress contained in this opinion in relation to the lands, are all the arguments necessary to show that they came in a legitimate and conclusive manner under our ter- ritorial laws. Since the act of Congress of 1844, how can the character of these lands be questioned ? They at once acquired all the characteristics, all the advantages and liabilities of individual possessions, they became in law and in fact the property of individual citizens, and not of a tribe or nation of Indians. They were as subject to the laws of the country and the adjudication of our territorial courts, as any other lands owned by citizens within the territory. This point was carefully investigated, and, we think, correctly decided, by our territorial supreme court in J'eid V. Webster, Morris, 467. The opinion of the court in that case needs no additional argument to show that the laws of Iowa are properly extended over the half-breed tract. It may also be well to observe, that in deciding this case we have attached but little force to the law of 1845, pro- viding "for the better settlement and adjudicating of the several titles set uj) to the half-breed lands in the county of Lee." So far as that act is remedial m its character it BUHLINGTON, MAY, 1849. 119 Wright V. Marsh, Lee & Delavan. should be enforced, but no feature in it can be considered valid and effectual wbicb would have a tendency to destroy or even impair vested rights. Consequently any record, judgment or decree, which would have been evidence of title in the half-breed tract previous to the enactment of that law, cannot by virtue of anything it contains, detract from the conclusiveness of such evidence since its passage. In short, no statute can constitutionally derogate a vested right.* Judgment aflfirmed. Geo. C, Dixon, for plaintiff in error. J, C, Hall and Charles Mason, for defendants. * The names of the petitioners and defendants in the partition proceed- ings, and the shares adjudged to each as modified by the final judgment, may be useful to the many who are interested in the "half-breed tract." The following, epitomized from the record, shows the names of all the parties, and the interest to which each became entitled under the judgment. The defendants, Marsh, Lee & Delavan forty-one shares ; John Wright one fourth of a share ; Cyrus Peck one eighth of a share; Samuel Abbott and Abraham Wendall one half share; William Phelps two shares ; Ebenezer D. Ayres one half share ; William Gillis one share ; Henry McKee one share ; Wilson Overall one share ; Garrett V. Deniston one half share ; James L. Schoolcraft one half share ; Elizabeth Hunt one share ; Rosella 0. Gliem one share; Mary L. Murdock one share; Eliza 0. Perkins one share; James L. Burtis one share; Margaret Farrar two shares; James Muir one share; Thomas Connelly one share ; John C. Ward one half share ; Elijah Fisher, D. W. Kilbourn and Henry S. Austin one share ; Edward Kilbourn one half share ; John Burtram one half share ; Edwin Manning one q uarter of a share ; Edwin Manning and Sheldon Norton one half share ; Wright, McDaniel and Darrah one share and three-fourths ; Manning and Horn one share ; Augustus Gonville one share ; Benjamin F. Messenger one share; the heirs of Natha- niel Knapp two shares and seven-eighths; Henry Brown one eighth of a share; William, John and Dalzell Smith two and one half shares; William H, Smith two shares ; John H. Lines one share ; William Price one share ; Charles Thompson one share; and one share reserved for Euphrosine Antaya, subject to proof. The shares of the several petitioners are designated as follows : Josiah Spalding one share and three-eighths; Archibald Gamble one share and one- eighth ; Patrick Walsh one share ; Etienne Provost one half share; J. and E. Walsh two shares and seventeen one hundred and twentieths of a share; heirs of Henry K. Ortley two fifths of a share ; Green Erskine one share and seventeen twenty-fourths of a share ; Joseph llidgway, trustee of Geo. Patch 120 SUPREME COURT CASES. Roberts v. Albright. one third of a share ; Herman C. Cole one fourth of a share ; Stephen Gore one eighth of a share; John B. Sarpy one third of a share; Edmond H. McCabe one third of a share ; Hugh Lunutty one share ; James R. McDonald one share ; Joseph W. Walsh one share ; John 0. Rourke one half share ; Antoine Gracia and Margaret his wife one half share ; Angelique La Gutlnie, now Mattabon, one half share ; Michael Tesson one share ; heirs of Otis Reynolds eleven twenty fourths of a share ; Heirs of James A. H. Palmer one third of a share; Geo. H. Crosman five sixths of a share; and Antoine Le Claire six shares and three eighths of a share. ROBERTS V. ALBRIGHT. Replication demurrable if it does not traverse the material allegations of the plea. A nonsuit for failing to reply to pleas, when an issue in fact is joined on another plea is erroneous. Error to Henry District Court. Opinion by Williams, C. J. This is an action on the case for a libel, commenced in the district court of Lee county. Venue changed to Henry, and trial at May term, 1847. Defendant filed his plea of general issue, and thirteen special pleas. Plaijitiff demurred to each. The court sustained the demurrer to all the defendant's pleas, except numbers five, seven, and eleven. Plaintiff filed re- plications to said pleas. Whereupon defendant filed his demurrer to the replications. The court sustained the demurrers to replications to fifth and eleventh pleas, and overruled that to the replication to the seventh plea. The plaintiff .failing to reply to the fifth and eleventh pleas, the court rendered a judgment of nonsuit. The plaintiff in error has filed the following assignments of error: 1. The court erred in sustaining the defendant's demurrer to plaintiff's replications to fifth and eleventh pleas. 2. The court erred in rendering judgment of non- suit against plaintiff on the entire case, while issues re- BURLINGTON, MAY, 1849 121 Koberts v. Albright. mained on plea of general issue. The certified record is in a confused and irregular condition, so that it is with much difficulty that this court can arrange it for a satis- factory examination. The replications to the fifth and eleventh pleas we think were properly demurrable, as they were not in fact responsive ; they did not directly traverse the material allegations of the pleas so as to form a perfect issue ; but as the case must be reversed upon the second assignment of error, we do not deem it necessary to discuss this point at large. We will only say that the pleas were upon demurrer declared good by the court. They contravene several matters, part of which were of record, and some of fact, dehors the record, all of which should have been specially denied or traversed by the replications. 1. All the material allegations in the pleas should have been denied. In the case at bar, the pleas set out particu- lar facts in answer to the declaration, and the plaintiff replies by a conclusion or inference of law. This is not allowable, as no issue of fact is thereby made for the 2. It is objected that the demurrer to the replication to the seventh plea was overruled, and a judgment of nonsuit rendered against the jDlaintiff, while there was an issue pending on the seventh plea. This could not be legally done. The issue was for the jury, and could not have been so disposed of. Judgment for the defendant should have been entered, upon sustaining his demurrer to pleas five and eleven, upon failure of plaintiff to reply to them. But the remaining issue of fact made by plea number seven, and the replication thereto, should have been tried. Hereford v. Crow, 3 Scam., 425 ; McAden v. Gibson^ 5 Ala., 341. Judgment reversed. D, Rorer and H. W. Starr, for plaintiff in error. J, C. Hall and Geo, C. Dixon, for defendauL Vol. II. 9 122 SUPREME COURT CASES, Roberts v. Miller. ROBERTS V. MILLER. In action for libel, where M. published that R. was a defaulter, a mortgage executed by li. to the United States, and the record of foreclosure, are admissible as evidence of K.'s indebtedness to the government. Any action by Congress or the departments of government, subsequent to the libellous publication, not admissible as rebutting evidence. Error to Henry District Court. Opinion hy Kinney, J. This was an action on the case to recover damages for the publication of a libel. Roberts in his declaration sets out that Miller, on the 30th day of July, 1844, published of and concerning the plaintiff the following false, malicious and defamatory matter, to wit : " Witness, that B. S. Roberts, at present the leader of the clique, a notorious public defaulter to a large amount," &c. The defendant pleaded the general issue with special pleas. The cause was tried in Henry county upon change of venue, and as the pleas were lost, the plaintiff agreed that the defendant might file the plea of general issue nunc pro tunc^ and give' in evidence anything which could have been specially pleaded. With this arrangement the parties went to trial. The plaintiff gave in evidence to the jury the publication of the libel as described in the declaration. The defendant then offered in evidence : 1. A bill of complaint filed on the part of the United States for the foreclosure of a deed of defeasance given by Roberts to the government. 2. The deed of defeasance, whereby Roberts, as late lieutenant in the army of the United States, and assistant commissary and acting assistant quarter-master, mort- gaged to the government certain " half-breed lands," on the 10th of April, 1839. 3. The answer of Roberts, which admitted the charges in the bill. BURLINGTON, MAY, 1849. 123 Roberts v. Miller. 4. The transcript of a decree in the district com-t of Lee county, by which it appears that a decree upon the mort- gage for $4699.12, was rendered in favor of the govern- ment against Roberts, and that the equity of redemption to the mortgage property was foreclosed. The defendant also offered in evidence a deed from Roberts to Akin and others, dated 5th May 1837, (prior to the execution of the mortgage,) conveying to them the premises described in the mortgage to the government. This evidence was allowed by the court to be read to the jury ; whereupon the plaintiff filed his first bill of excep- tions. The plaintiff then offered in evidence certain documents emanating from the departments at Washington, in- cluding letters from distinguished individuals, recom- mending to the President the restoration of Roberts to the army. Among them is a report from the judiciary committee of the Senate and House of Representatives, dated in 1845, reporting a bill for the relief of Roberts, and also asking for his restoration to his former rank in the army as an act of justice. This report of the com- mittee is based upon the fact that at the time the specie circular of 1836 went into operation, Roberts, as a dis- bursing officer, had a large amount of bank notes in his possession, upon a bank which suspended specie payment, and therefore they were unavailable funds. The committee say, upon a thorough examination of all the circumstances in the case, they came to the conclusion that Mr Roberts had been guilty of no acts impeaching his honor and in- tegrity as an officer, and that his official acts aimed at the good of the service, and the faithful application of the public funds in his hands, &c. This report is signed by the committee, and concurred in by senators Walker and Dix. Tlie plaintiff" also offered in evidence a document from the treasury department, purporting to be a settlement of the account of Roberts as lieutenant, &c., during the years 1836-7-8 and 9, in which Roberts is charged with $424.82, and credited with a like sum. All of these docu- 124 SUrJlEME COURT CASES, Rolierts v. Miller. ments, report, certificates, letters, &c., were offered con- jointly and separatel}', but they were all excluded from the jury, which forms the basis for the plaintiff's second bill of exceptions. A verdict was rendered in favor of the defendant, and the plaintiff in error assigns the ruling of the court per- mitting the evidence to go to the jury as set out in his first bill of exceptions, and the exclusion of the evidence offered by him in his second bill, for error. We ^think the evidence offered by the defendant was properly admitted. By the latitude extended to him by the plaintiff, such evidence could not well be excluded from the consideration of the jury. Under a special plea it would have been competent for the defendant to intro- duce evidence tending to show the defalcation, and thus justify the publication. The bill, answer, mortgage and decree, were matters of public record, and these were at least prima facie evidence of the indebtedness to the government. They upon their face show that the indebt- edness accrued in a fiduciary capacity. The mortgage is given by Roberts as late lieutenant in the army, and assistant commissary and quarter-master. The capacity in which Roberts stood indebted to the government fully appeared. This was notorious, it was of record, fully admitted and confessed by the answer of Roberts,. The deed to Akm and others was proper evidence, as the indebtedness might be presumed to be secured by the mortgage. But this shows that the land was not liable to mortgage, Roberts having j)reviously conveyed the same by deed to Akin ; consequently at the time of the publication as appeared from the records taken together, Roberts in his official character still appeared to be a government debtor to a large amount ; therefore in this rulins: of the court there is no error. The plaintiff, as rebutting evidence, offered the report, letters and documents before referred to, none of which we think could have been permitted to be read to the jury. The report of the judiciary committee bears date in 1845, BURLINGTON, MAY, 1849. 125 Wilson V. Albright. subsequent to the date of the mortgage, the decree and the publication of Miller. Miller relies as a justification upon the public records of the county showing the deficit, and any action that Congress may have taken after the publi- cation could not be introduced as evidence to defeat a plea of justification predicated uj^on the record as showing a prior deficit or defalcation. The document purporting to have been a settlement, includes the years 183C-7-8 and 9. We cannot see how this can explain or rebut the presumption of defalcation, as made by E-oberts's own confession -in 1844, and which at the time the alleged libellous matter was published, was a matter of evidence against Roberts upon the record. The other documentary evidence ofi'ered, referred to in the bill of exceptions, does not require comment. It is not neces- sary to adduce reasons in support of a decision, the correct- ness of which cannot well be questioned. Judgment affirmed. D. Rorer, for plaintifi" in error. J. C. Hall and Geo. C. Dixon, for defendant. WILSON V. ALBRIGHT. Where the transcript of a justice does nof set forth the judgment in Tioae verba, but coutains sufficient to show its character, its amount and against wliom it was rendered, it is sufficient to give the court jurisdiction. A judgment will not be reversed for a mere diminution of the record which might have been perfected. One of two joint obligors not liable in a proceeding of garnishment. Judgment cannot be rendered against a garnishee upon his liability before it becomes due. Gai.-iishee under no greater liability to his garnishor, than he would be to his creditor. A garnishee holding a note for collection, is not liable as holder of the note, 126 SUPREME COURT CASES, Wilson V. Albright. nor on the receipt he gave for the note, without a previous demand and a refusal to deliver up the note, and the amount collected on the note. Judgment cannot he rendered against garnishee unless he acknowledge an indoljtedness. A judgment taken to the district court by writ of certiorari may be reversed. Error to Lee District Court. Opinion by Greene, J. Perry AVilson & Co. obtained a judgmeut against Samuel S. White, before a justice of the peace, on which execution was issued, with a garnishee clause, against William G. Albright. On the return day, March 10, 1847, Albright appeared before the justice, and in reply to interrogatories answered in substance, that he had no goods, money or effects belonging to the defendant in his possession or under his control ; but that on the 1st day of April 1845, J. W. and W. G. Albright gave their note to S. S. White or order for $225, payable in two years after date; that said White, befor'e leaving the country, deposited the note with him, and took his receipt for the same ; and that the note is still in his possession. Upon this answer alone, it appears that the justice rendered judgment against W. G. Albright as garnishee ; but on being brought to the district court by certiorari, this judg- ment was reversed. 1. It is urged for the plaintiffs in error, that the district court erred in reversing the judgment of the justice, as it did not appear by his returns to the certiorari what that judgment was. It is true that the specific form of the judgment is not set forth by the retm-ns of the justice in h(sc verba, but still sufficient is contained in the affidavit, writ and returns, to leave no doubt that judgment was rendered by the justice against the garnishee for the sum of $43, the amount of the judgment against S. S. White in favor of Perry Wilson & Co. This was sufficient to give the court jurisdiction. Besides the necessary legal pre- sumption that the court below had before it the proceedings of the justice, and all the material facts in due form, upon which to predicate an enlightened decision, it appears by the bill of exceptions, that the papers on file in the case BURLINGTON, MAY, 1849. 127 Wilson V. Albright. with the facts as they appeared of record, were submitted to the consideration of the court, and upon these the judg- ment of reversal was rendered. It has repeatedly been decided by this court, that a judgment cannot be reversed by reason of any diminution in the transcript of the record. If defective, the plaintiff should have it perfected ; and if it be not perfected, the correctness of the proceedings below must necessarily be j)resumed. 2. The second assignment claims that the court erred in reversing the judgment of the justice, because the answers of the garnishee show that he was liable. The decision of the district court was doubtless mainly predicated on the facts : 1. That the note given by J. W. and W. G. Albright was a joint obligation, not due, nor in the possession of the payee,- at the time judgment was rendered against W. G. Albright, one of the joint makers. It is conceded that one of two joint obligors cannot be held liable in a proceeding of garnishment, on an indebtedness exclusively joint. 2. The note was not due. It is clear that to justify such a judgment, there must have been an actual pending indebtedness from the garnishee to the execution defendant, and not merely a liability to pay at some future day. The language of the statute is, " That if any such garnishee shall be found to be indebted to the defendant in any such execution, a judgment shall be ren- dered against such garnishee for the amount for which he admits himself indebted in his said answer, or so much thereof as will satisfy any such execution." This is explicit, and leaves no room to doubt that a judgment cannot legally be rendered against a garnishee on a liability not due. It has been decided by our territorial supreme court, that the maker of a negotiable instrument cannot be made liable on a garnishee process unless the instrument is due, and shown to be in possession of the execution defendant. Jefferson County v. Fox et al.^ Morris, 48. A decision so conformable to justice and the true meaning of the statute, cannot be disturbed. It would appear repugnant even to the weakest conception of right, to place a garnishee under 128 SUPREME COURT CASES, Wilson V, Albright. e^reater liabilities to the garnislior than he would be under to his creditor. But plaintiff's counsel contends that the garnishee in this case was liable as holder of the note, and on the receipt he gave when the note was placed in his possession. Giving a receipt for a note deposited with him for safe keeping, or for collection, could not of itself create a pending indebtedness, nor render him liable as garnishee. Independent of the consideration that White's beneficial interest in the receipt may have been transferred, we must conclude that if Albright was not liable in an action to White on the receipt, without previous demand and refusal to deliver up the note, or the amount collected thereon, he certainly could not be held amenable as garnishee. Again, it is urged that the note should be regarded as property or effects of White in the hands of Albrigl.t. But even admitting it in that light, the proceedings of the justice appear equally objectionable. Under the 7th article, and 10th section of the justice's act, a judgment can be rendered against the garnishee for such amount only as he may acknowledge himself indebted. And in the attachment clause of the same act, article 9, § 19, it is provided, that issues between the plaintiff and garnishee shall be tried as ordinary issues between plaintiff and defendant ; and if on the trial of any such issue, property or effects shall be found in the hands of the garnishee, the justice or jury shall assess the value thereof, and the judgment shall be for the amount in money. Though this section is arranged under the article headed " attachment,^* its provisions appear to extend generally to proceedings of garnishment, and a judgment for property or effects in the hands of a garnishee can be rendered only in conformity to its provisions. Judgment cannot be rendered against a garnishee, unless he acknowledge indebtedness. E-ev. Stat, 331, § 10. 3. It is assigned as error, that the court rendered a judg- ment of reversal on a writ of certiorari, where judgment should have been according to the very right of the cause. BURLINGTON, MAY, 1849. 129 Rife V. Pierson. either for the plaintiff or defendant. We cannot believe that this objection is urged with much seriousness. Though the statute requires the district court in such cases to give judgment as the right of the matter may appear, it also provides that the judgment may be affirmed or reversed, in whole or in part. But even if limited to the " very riglit of the matter," such right would often require an unqualified reversal or affirmance. No sufficient reason appears for disturbing the judgment of the district com't in this case. Judgment affirmed. L. R. Reeves, for plaintiff in error. D. F. Miller, for defendant. RIFE V. PIEUSON. Where the transcript of a justice describes a note to be dated April 12, when the note offered in evidence is dated April 2, but is otherwise identified as the note upon which suit was brought, the variance is not fatal. Error to Des Moines District Court. Opinion by Williams, C. J. John Pierson sued Abra- ham Rife in debt before a justice of the peace. His action was brought on two due bills, the one dated the 2d of April 1846, and calling for $50 with 10 per cent, interest, and a credit endorsed thereon for |3. Judg- ment was entered by default for the plaintiff for $90.95 and costs. The defendant took an appeal to the district court of Des Moines county, and the plaintiff recovered a judgment against defendant, and Rodney Arnold, his bail, on the appeal, in accordance with the statute, for the sum of $94.96 damages with costs. 130 SUPilEME COURT CASES, Rife V. Pierson. The bill of exceptions shows, that on the trial in the district court, the plaintiff offered in evidence a due bill di'awn in his favor by the defendant, on the back of which were endorsed the words and figiu-es, " Filed Nov. 3, '47, A. Ingraham, J. P." The defendant's counsel objected to the note going in evidence to the jury, on the ground that it was not the same note which was before the justice before whom the suit was instituted and tried originally. That therefore it was a new and different " cause of action" which was not tried there. The only variance relied on to support the objection is found by reference to the date of the instrument, and the description entry thereof, made by the justice in his transcript. The note bears date the "2d of April 1846," whereas the transcript describes it as of the date of "April 12, 1846." In all other re- spects it is correctly described. Is this a fatal variance ? We think, as the case is presented, it is not. It is true it is required by Rev. Stat., 335, § 15, that the "same cause of action" only could be sustained and tried by the dis- trict com't on the appeal. But, in a proceeding of this kind, will it be contended that the district court is bound, with strict and 7igid precision, to confine itself to the tran- script of the justice alone, to ascertain whether the instru- ment offered in evidence to support the plaintiff's action be the same which was filed with the justice at the com- mencement, as " the cause of action? " If so, a single clerical mistake of the justice, who may not be very apt in describing with minuteness an instrument of writing of this kind, may operate to defeat the obvious design of the statute, which saves the case of a party upon appeal from defeat, for " errors, defects or imperfection in the proceedings of the justice." Rev. Stat., 335, § 7. The due bill itself is sent up with the transcript among the papers of the case, and is endorsed, " Filed Nov. 3, 1847 " — which endorsement is signed by the justice in his official capacity. The sum of money called for, the rate of interest, the month and year, ai'e all correctly stated in the transcript. BUHLINGTON, MAY, 1849. 131 Austin & Spicer v. Carpenter. In actions before justices of tlie peace, the plaintiff is not required to file a declaration, so that the rules of prac- tice in relation to variance between the allegations in the declaration and the evidence offered, will not apply. The record of the justice is not to be taken as the plaintiffs declaration in the case. The instrument showing indebt- edness is instead of a declaration, and when filed in the case is a component part of the record. It comes up with the record, authenticated in the same way that the transcript and other proceedings are, by the attestation of the justice. Coming in this way into the district court, and being an authenticated part of the case with the proceedings, w^e think it bears its own mark of identity ; and it must be taken as the instrument upon which the suit was brought originally before the justice. We con- sider the variance a mere mistake of the justice, in describ- ing the instrument in his transcript, which is sufficiently apparent under the cu'cumstances, and that it is cured by the statute. The argument that the defendant may be sued again, and that a former recovery could not be shown in defence, is answered by the fact that the instrument is of record in this case by the filing under attestation, and will so remain. Judgment affirmed. D. EoreTj for plaintiff in error. Grimes and Starr ^ for defendant. "&' AUSTIN & SPICEE v. CAKPENTER et aL Equity will afford relief to those who are indirectly injured by official fraud or misconduct, as well as to those who are directly injured by such fraud. The rule that a judgment will not be reversed where the error does not athrmatively appear of record, applies to cases at law, and not to appeala in chancery. 132 SUPREME COURT CASES, Austin & Spicer v. Carpenter. In Equity. Appeal from Des Moines District Court. Opinion hy Kinney, J. It appears from tlie record in this case, that the appellants, Austin & Spicer, in the fall of 1845, commenced a suit against one Edwin Wilcox ; that they sued out an attachment, and that Postlewait, Coolbaugh & Garrett became sureties in the attachment bond. Judo^ment was afterwards rendered in favor of complainants against said Wilcox. The goods attached were sold upon execution, Francis J. C. Peasley being the purchaser, and he was ordered by the court to pay the costs that had accrued upon said suit out of the proceeds of said sale. In February 1848, Wilcox, for the use of Anthony W. Carpenter, commenced a suit before James R. Fayer- weather, a justice of the peace, against the said Postlewait, Coolbaugh & Garrett for the costs in the attachment suit, and recovered judgment. • A bill in chancery was then filed, enjoining said Car- penter, Fayei'weather, and Harris, the constable, from the collection of said judgment. In the district court the bill was demurred to, the demurrer sustained, the injunction dissolved, and the bill dismissed. The complainants appeal to this court, and assign for error this ruling of the court. The demurrer liaving admitted the facts set forth and charged in the bill, which were well pleaded, to be true, we have only to examine the bill to ascertain whether it exhibits such a case as will entitle the complainants to the interference and aid of a Court of equity. It was urged by counsel for the appellees in the argu- ment, that the court would not look into the merits of the case, as, by the chancery act, the court were compelled to dismiss the bill, for the reason that the complainants did not appear and prosecute the suit. This position is not BURLINGTON, MAY, 1849. 133 Austin & Spicer v. Carpenter. sustained loj the record, whicli shows that the cause came up to be heard upon the defendant's demurrer to the com- pkiinants' bill, whereupon all and singular, the premises being seen and heard, &c., the injunction was dissolved and the bill dismissed. It is conclusive, from the record, that the bill was tried upon the demurrer and dismissed for the want of equity, and not pro Jbrma, as was urged in the argument. Looking into the bill, we find that it sets forth in sub- stance that the attachment against Wilcox was sustained ; that the sureties thereby became absolved from the pay- ment of costs upon their bond ; and that Peasley was ordered to pay all costs which accrued in said suit. The bill also states, that when the suit for the collection of costs against said sureties was about to be tried, the counsel for complainants appeared in order to defend, but said Justice Fayerweather refused to let him do so ; that said sureties did not appear, expecting said Austin & Spicer to do so, and defend said suit. The complainants also state, that the case would have been appealed had not the justice informed their attorney that the same was settled, and would not be pursued. Fraud is chai'ged in the ren- dition of the judgment, and it is charged that the justice acted contrary to good faith, &c. It is not necessary for this com't, sitting in chancery, to decide whether the defendants before the justice had a good defence at law, nor does it become material in the view in which this case is presented to our minds. But it is proper to ascertain whether Austin & Spicer had a right to appear and defend the suit, and whether they were improperly deprived of then- appearance and defence by the misconduct of the justice. The defendants before the justice, although the real parties, were only nominally so in interest, as they would have their action over against the principals in the bond for any judgment that might be recovered against them. Although the appellants were not party defendants, yet it became important for them to protect their sureties from 134 SUPREME COURT CASES, Austin & Spicer v. Carpenter. any judgment, and thus preserve themselves from a liabil- ity wliich would necessarily result in favor of the sureties if judgment were rendered against them ; and we see no impropriety in their conducting the defence, particularly as the sureties did not defend, expecting that the counsel for Austin & Spicer would do so. But the justice appears to have been unnecessarily technical, and to have shut out the defence, from honest motives we would presume, if it were not otherwise charged in the bill. If the bill did not state that the defence was left to the appellants, or in language which is equivalent to it, we might come to a different conclusion ; for, as a general rule, the parties only to a suit have the right to defend. But the justice not only prevented them from defending, but, after judgment was rendered and an appeal applied for, informed the counsel that the case was settled, and would not be pursued, thus depriving them of the benefit of an appeal, as the execution upon the judgment was retained until after the time for appeal had expired. If such conduct as this in a public officer, acting in an official capacity, in violation of the rights of parties, is not a fraud, it would be difficult to conceive of a case in which official malfeazance could be construed into fraud. The principle of law is well settled, that not only the parties directly in interest may be relieved from this kind of fraud, but a court of equity will afford relief to parties who are indi- rectly made to suffer by such official misconduct. 2 Am. Chy. Dig., 16, 19, 24. But it was contended by counsel for the appellees, that if there was error in the district court in dismissing the bill, the judgment should not be reversed unless the error a})pears affirmatively upon the record. This is the law when applied to cases upon writs of error, as has been frequently decided by this com't. Machemer v. Benner, 1 G. Greene, 157 ; Saum v. Jones Co. Com., ib., 165 ; Hemp- hill V. Salladay, ib., 301. But this doctriiic does not obtain when applied to appeals in chancery. On appeal, a court of equity, freed BURLINGTON, MAY, 1849. 135 Lyne v. Hoyle. from those rigid rules which limit and confine a com-t of errors, having acquired jurisdiction, will examine into the merits of the case for the purpose of administering justice, guided only by the universal principles of equity juris- prudence. Not confined to errors apparent, the court will correct errors of conscience, which sometimes are of such a natm*e that they cannot be spread upon the record. All appeals in chancery must be tried de novo, the same as if this court had original jurisdiction, regardless of the decision of the court below, except so far as necessary to a correct understanding of the record and the matters at issue. From a careful examination of the matters presented in this case, we are of the opinion that the bill exhibits a strong case for equity interference, and that the court below erred in sustaining the demurrer to the complain- ants' bill. The decree is reversed, and the case remanded to the court below, for further proceedings not inconsistent with this opinion. Decree reversed. J, C, Hall, for appellantau D, EorcTf for appellees. LYNE et al. v. HOYLE a at. Application for a change of venue may be made to a justice of the peace at any time after the appearance of parties and before the jury is sworn, or the trial submitted to the justice. Statutes made to promote an impartial administration of justice shoold receive a liberal construction. 136 SUrUE^IE COULiT CASES, Lj'ue V. Hoyle. Errok to Lee District Court. Opinion hy Greene, J. Application was made to the justice of the peace before whom this suit was commenced for a change of venue. The change was refused, on the ground that the affidavit for it was made after a contin- uance of the cause, and after the return day of the writ. But it appears to have been made before the jury was sworn or the trial submitted to the justice. Judgment having been rendered against the defendant, he took the case to the district court by writ of certiorari^ to determine the correctness of the decision by which his application for a change of venue was overruled. In the district court tlie judgment of the justice was affirmed. The section of the statute about which the question of construction is raised j^rovidcd, that " if, upon the appear- ance of the parties on the return of process in any case, either party shall, before the jury is sworn or the trial submitted to the justice, make affidavit," &c. Rev. Stat., 327, § 6. It is urged that this language limits the time of filing the affidavit for a change of venue to the return day of the process, and that a party cannot avail himself of it at any future day, or after a continuance of the cause. To this construction, however, we cannot give concurrence. The letter of the statute clearly imports a term within two designated periods of time, dm'ing which a party may avail himself of this important legal right. This term commences " upon the appearance of the parties," after or "on the retmm of process," and terminates as soon as " the jury is sworn or the trial is submitted to the justice." This construction, we think, must necessarily follow as the manifest spirit of the law and the apparent intention of the legislature. Statutes made to promote an impartial administration of justice should receive a liberal construc- tion, a construction that will not limit or impair its reme- dial object. Steamboat " Kentucky'''' v. Brooks et al., 1 G. Greene, 398. As in this case the jury had not been sworn, BURLINGTON, MAY, 1849. 137 Hampton, ex parte. nor the trial submitted to the justice, when the defendant made application for a change of venue, it should not have been refused, and the district court erred in affii-ming the decision. Judgment reversed J. C. Hallf for plaintiff in error, Geo, C. Dixon^ for defendants. HAMPTON, expaHe, No person but the party in whose favor a judgment is rendered, his agent or attorney of record, can control or order process to enforce the judgment. Officers of court, or witnesses to whom fees are due, have not the power to order execution on a judgment owned by another. Opinion hy Williams, C. J. In the matter of the mo- tion of George S. Hampton, to rescind the order entered at this term, relative to certain executions issued by him as clerk of the 4th supreme court district, to the sheriff of Des Moines county, for costs. The costs, for which the executions have been issued, accrued upon causes which were pending in the supreme court of this state, previous to the enactment of the law dividing the state into districts. Upon the passage of the law creating four supreme court districts, the attorneys of the parties to the several suits made an agreement in writing, that certain cases therein named should be transferred from the docket at Iowa city to that of the first district at Burlington, to be tried; and that in all those cases the costs should be paid by the losing party upon final judgment. In order to the removal of the causes, the writ of error in each case was dismissed from the 4th district at Iowa Vol. II. 10 SUPREME COURT CASES, Hampton, ex parte. city, and tlie papers withdrawn according to tlie agree- ment ; and they were regularly entered, without prejudice to the parties, on the docket of the 1st district at Bui-ling- ton, there to be tried. Such being the facts, and the causes being for trial and final disposal, the clerk of the supreme court for the 4th district, on his own motion, issued execution in each of these cases for his fees, judgment being entered for the costs on the dismissal of the writs in that district. The supreme court being in session in the 1st district, the attorneys in these cases appeared in court, and having directed the sheriff to return the executions to the clerk of the 4th district, whence they came, procured an order from this court, directing the clerk of the 4th district to make out and send to the clerk of the 1st district, a fee bill in each case, in order to the collection and payment of the fees in accordance with the practice in this state. The motion now to be considered, is to rescind that order, so that executions may be allowed to issue as before. The question is, whether the attorneys for the parties to a suit have the power to control the cause until finally dis- posed of in the court, without interference on the part of the clerk, or other persons who may be entitled to fees. In conducting a cause in any of the courts of this state, before or after judgment, no person can be recognized as being authorized to control the case but the party, his agent, or attorney of record. It not unfrequently happens that the parties, plaintiff and defendant, in the exercise of right, and in the spirit of justice and compromise, agree upon terms by which the stern and rigorous proceeding of the law is stayed, and time and opportunity afi'orded for the defeated party to satisfy the demands of the law, with the consent of his successful antagonist. Courts will not prevent the parties from acting with conciliation and forbearance, promotive of convenience. To allow the officers of the court, or witnesses, to whom fees may be due, to step in and control the cause, either BURLINGTON, MAY, 1849. 139 LIuvd V. McClure. before or after judgment, by ordering process to issue, would be a manifest privation of the rights of the parties. A judgment when entered is subject to the control of the party in whose favor it is. He, his agent or attorney, may, in the use of the proper jirocess of the law, enforce it, and no other person. It is his judgment. If fees be due to the officers of the courts, or witnesses, and they are unreasonably delayed in their collection by the parties to the proceeding, the law gives them a remedy for services rendered. They may enforce their rights by proceeding against the party liable. In these cases, the attorneys acted in the exercise of rightful and legal power, by staying the executions and ordering their return. The causes in which the fees have accrued being now in this com't, by agreement of the attorneys for the parties, which makes provision for the payment of those fees as far as the parties are concerned, the fees which are due upon the docket at Iowa city will be sent to the office of the clerk of this district, to be made part of the record in the cases to which they may apper- tain, subject to such further proceeding as may be proper for the parties interested. Motion refused. Geo. S. Hampton, pro se, J, C. Hall, contra. LLOYD V. MoCLURE. Where a verdict has been returned on matters of account, a new trial sTioald not be granted, unless it is apparent that manifest injustice has been done. A. new trial should be granted, if the verdict is contrary to law, and the instructions of the court. 140 SUPPvEME COURT CASES, Lloyd V. McClure. Unless the contrary appears, it will be presumed that the court exercised a sound discretion in overruling a motion for a new trial. Where a party enters credits upon the instrument sued on, it is not necessary for the defendant to prove them. Affidavits of jurors not admissible to explain their verdict. Erkor to Des Moines District Court. Opinion by Kdtney, J. McClure sued Lloyd before a justice of the peace, upon an account amounting to $07.43, upon which he had given Lloyd a credit of $18.67. McClure recovered a verdict before the jury for $45.76. Lloyd appealed to the district court of Lee county, from which he obtained a change of venue to Des Moines, where the cause was tried, and a verdict rendered in favor of McClure for $25.25. Lloyd filed his motion for a new trial, which was overruled by the court. This ruling is assigned for error. A bill of exceptions em- bodying all the testimony was taken by the plaintiff in error, from which it is contended that the verdict of the jmy was not authorized by the testimony sub- mitted, and hence the court should have granted a new trial. When matters of account are submitted to a jury, and a verdict rendered, judges should not distm'b the verdict, unless it is apparent that manifest injustice has been done. By the wise policy of our laws, the jury are made the exclusive judges of all the facts, and if by their verdict they misapply the fticts, or err in their conclusions, it should be such an error as to produce irresistible conviction upon the mind of the court that the verdict is not the result of a free, sound, and un- biased exercise of judgment upon the testimony sub- mitted, and that manifest injustice will result from a judgment upon the verdict, before the judge should inter- fere by putting the parties again to the expense and trouble of another trial. While this is true in relation to those cases involving merely matters of fact, inde- BURLINGTON, MAY, 1849. 141 Lloyd V. McClure. pendent of legal questions, it is equally true that courts should not hesitate to grant new trials when the verdict is contrary to law and the instructions of the court upon the law of the case. But even in such cases the court will not grant a new trial, unless the verdict will operate injuriously upon the j)arty ajjplying. But in the case before us, the motion was predicated upon the ground that there was not sufficient testimony to support the verdict. Unless the contrary appears, we must presume that the court exercised a sound discretion in refusing the motion for a new trial. This court cannot take the place of a jury, and weigh the testimony, and de- cide that the preponderance is in favor of the plaintiff in error. If the court below erred upon a motion addressed to its sound discretion, in which was not involved any ques- tion of law, it may well be questioned whether this court, as a court for the correction of errors at law, can reverse on that account. At common law, the decision of a court upon an application addressed to its sound discretion, cannot be assigned for error. In the case of Cook v. TJie United States, 1 G. Greene, 56, this court say : " To give the court jurisdiction of a cause on writ of error, the basis of the error being the decision of the court, upon a motion for a new trial, it must appear affirmatively upon the record that the motion was based and decided upon some legal point contained in the motion for a new trial." This appears to be in accordance with the decisions in Illinois, before the common law was changed by statute. Smith Y.'Shultz, 1 Scam., 491. But it was urged in the argument, that the jury did not allow Lloyd the credits that were given by McClure upon his bill of particulars. When a party enters credits upon the instrument sued on, whether it be a note or oq account, the opposite party is not obliged to prove them. They stand admitted or confessed, and it would be a hard- ship upon the defendant, resting securely in the belief that testimony would not be necessary to j^rove the credits, if upon trial they were excluded. A party has a right to 142 SUPREME COURT CASES, Wright V. Husrhes. presume it is not necessary to prove that whicli is ad- mitted by written credits upon a paper, which constitutes the evidence of the plaintiff's right of action. In this case the affidavits of the jurors were introduced in explanation of their verdict, and in relation to what items they had allowed, and what rejected. Jurors are not permitted in this manner to explain or justify a ver- dict. When their verdict has been attacked, they have in some instances been permitted to introduce affidavits in support of their verdict ; but according to the settled doctrine, for no other purpose. These affidavits having been properly rejected by the court, there was not any evidence showing that the credits of Lloyd on McClure's bill were not allowed by the jury, and the presumption must be, that they were allowed and taken into considera- tion by them in making up their verdict. After having been entered by McClure, they were admitted and con- fessed, as much so as if he had orally acknowledged before the jury that they were correct items of set-off. It would certainly be a most violent presumption to suppose that they weye not allowed to Lloyd by the jury, and that they did not constitute a part of their verdict. Judgment affirmed, J, C, Hall, for plaintiff in error. M, D, Browning^ for defendant. WRIGHT V. HUGHES et aU The time of suing out a writ of error is determined by the date of ita service upon the clerk to whom it is directed. Ekeok to Lee District Court. Opinion by Greene, J. A motion is made in this case to dismiss the writ of error, on the greund that it was not BURLINGTON, MAY, 1849. 143 Wright V. Hughes. sued out within three years after the rendition of the judg- ment, as limited by statute. The record shows tliat the judgment was rendered Oc- tober 24, 1845. The writ of error appears to have been first dated on the 1st day of " Nov." 1848, but the word " Nov." is jjartly erased and October inserted. On the 22d of November the writ was filed with the clerk of the district court. In su})port of the motion, it is urged that the only authentic evidence of the time of suing out a writ of error is the date of its service upon the clerk of the dis- trict court to whom it is directed. As the clerk of the supreme court is authorized by law to issue blank writs of error to any attorney of the com't, to fill up as occasion may require, and as they are subject to be antedated to suit particular cases, the law limiting the time for suing out writs of error to three years from the date of the judgment, might be grossly evaded by taking the date of the writ as a reliable test of the time it was sued out. If writs of error were dated and filled up by the officer issuing them, as is usual with other writs, their date would be regarded as evidence of the time they were really sued out. But under our prac- tice, in order to prevent an abuse of the law in that par- ticular, we deem it the safest rule to be guided by the date the writ was served upon, or filed by the clerk of the district court, to whom it is directed. The writ of error in the present case, not having been sued out in time, the motion to dismiss is granted. Motion granted. J. C. Hallf for plaintiff in error, H, T, Reid, for defendants. 144 SUPREME COURT CASES, Millard v. Singer. MILLAED V. SINGER. A new trial sliould not be granted on the ground of newly discovered evi- dence, unless it is of a character calculated to produce a substantial change in the verdict ; nor when such evidence, by ordinary diligence, might have V)een produced on the trial. A motion for a new trial is addressed to the sound discretion of the court, and should be refused unless a strong meritorious case is shown. Error to Lee District Court. Opinion hy Williams, C. J. This is an action of as- sumpsit, commenced before a justice of the peace in Lee county. Justin Millard, the plaintiff, sued Henry Singer, the defendant, for services rendered, as a physician, to Elizabeth Conkle. The suit was brought against the de- fendant, charging him, as husband of the said Elizabeth, with the indebtedness created when she was a feme sole. The cause was taken to the district court of Lee county by appeal. LTpon the trial below, evidence was given for the pur- pose of showing that Elizabeth was 2. feme sole at the time the services were rendered. That she was then acting without the control of her father, and was of such an age as rendered her liable in law for debts contracted by her. The evidence being closed, the cause was submitted to the jury, and a verdict was rendered for the defendant. A motion was made for a new trial, and overruled by the court. The bill of exceptions taken in the case presents the question for adjudication upon the following assignments of error : 1. The court erred in refusing to grant a new trial. 2. The com't erred in the instructions given to the jury. The bill of exceptions shows that evidence was given to the jury tending to prove plaintiff's account for services, as physician, rendered to Elizabeth Conkle, (now charged as the wife of Singer,) the defendant, while she yfSiS.feme BURLINGTON, MAY, 1849. 145 Millard v. Singer. sole, and resided with her father, Henry Conkle, and that such services were necessary ; also that she was not a minoi- at the time the services were rendered, that she acted for herself, received her own wages, paid her own expenses, &c. The items charged were admitted to be correct. Henry Conkle, the father of Elizabeth, was called as a witness, and proved, among other things, that the services charged in the plaintiff's account were rendered to his daughter while she was a member of his family, and under age, in July, 1846. Evidence was also given to the jury that wages had been paid to Elizabeth before her alleged marriage with Singer, for work done by her, &c. The jury having rendered their verdict for the defendant, a motion was made for a new trial. This motion, together with the instructions of the court, is made a part of the bill of excejDtions. The instructions which were given by the court to the jury are assigned for error. The assignment does not specify any jjarticular error, so as to inform this court in what it consists. But we are left to examine and discuss the instructions in extenso, as they appear of record in the case, to ascertain for the plaintiff in error whether some- thing may not be found upon which to maintain the assignment. As several questions are decided by the court touching the case, as appears by the instructions, it may be justly presumed that the plaintiff in error must have known the error, if there is any, upon which he relied for a reversal of the case. If he knew it, he should have shown it to this court specifically, that it might be par- ticularly considered and decision had upon it. It is, however, enough for us to say, that we have examined carefully the instructions of the court below, and find no error in them. The other error assigned is the refusal of the court below to grant a new trial. In support of this motion, several positions are taken and presented, which could not be properly urged to the court, as tliey relate to matter of 146 SUPREME COURT CASES, Millard v. Sinsrer. evidence, which was for the jury alone. The only point which we will consider is that of newly discovered evidence. It appears by the affidavit of Millard, the plaintiff, which alleges that after the trial of the cause in the district court, he discovered witnesses by whose testimony he could prove that Elizabeth Conkle, (now Elizabeth Singer,) was-, at the time the indebtedness accrued, of age, so as to enable her to make a contract, and that she acted as 2. feme sole, with- out the control of her parents. The affidavits of the persons by whom he proposed, on the trial anew, if granted, to prove these facts, were also read to the court and appear of record in the case. One of them proved, that in 1846, he went to the house of Henry Conkle, the father of Elizabeth, and asked her parents whether they could let him have her to work for him ; that they told him that she was her own mistress, and could do as she pleased ; tliat he hired her and paid her, and not her parents ; that her parents did not claim her earnings ; that her father stated that he was poor, and could not clothe her as a young lady required. The other swore that after the trial of this cause in the court below, he went to the residence of Henry Conkle and examined the family record, and found the birth of Elizabeth recorded as follows, viz. : " July 26th, 1827, my Elizabeth was born." The testimony of the first witness can only be viewed as cumulative to that which was given to the jury upon the trial. It presents nothing which would be decisive of the issue between the parties. In order to operate successfully upon the mind of the judge who tried the cause below, so as to call forth the exercise of a sound legal discretion in granting a new trial, the newly discovered evidence should be of a character calculated to produce a verdict different in substance from that which has already been rendered. As to the evidence of the second affidavit, the affidavit itself shows that soon after \\\e trial and verdict, he went to the house of Conkle, flie father of Elizabeth, and examined BURLINGTON, MAY, 1849. 147 Millard v. Sinsrer. the family record, &c. This evidence, if in the exercise of due diligence the party had used the proper means to procure it, might have tended strongly to contradict the testimony of Henry Conkle, the father. But why was it not produced on the trial ? It might have been as easily procured before the trial as after it, had the plaintiff exer- cised ordinary diligence in preparing for the trial. It was within his power to procm*e it, and he should have done so. If courts would allow a party thus to neglect the necessary means of making out his case, at the proper time, and then, upon a showing, after verdict against him, he could produce evidence which would give him a new trial, there would be no end to litigation. The party claiming a new trial must not only show the court that he has discovered new and material testimony which, upon the issue tried, would have produced a different verdict, and one more favorable to him ; but he must by evidence satisfy that court that such testimony was not wanting, on the trial, in consequence of his own negligence. He must show due diligence to procure it on his part. If by due diligence he might have discovered the evidence before the trial, a new trial will not be granted. Coe v. Givan, 1 Blackf., 367 ; Schlenher v. Risley^ 3 Scam., 486. We have heretofore decided that a motion for a new trial, being addressed to the sound discretion of the court which tried the cause upon its merits, the party making it must make out a strong meritorious case, or it will be refused. Vide Lloyd y. McClure* ivie,^ at this term, and cases there cited. Wheeler v. Shields, 2 Scam., 351 ; Wicker sham Y. The People, 1 Scam., 130. We are of the opinion that in overruling the motion for a new trial, the court was not in error. Judgment affirmed. *o' L. R. Reeves, for plaintiff in error. J. C. Hall, for defendant. * Ante, 139. 148 SUPREME COURT CASES, Cuddelback v. Parka. CUDDELBACK et al v. PAEKS. In an action of forcible entry and detainer, an appeal bond is necessary as a condition precedent to an appeal. An instrument with all the other requisites of a bond, is not one, unless signed and sealed by the parties making it. A recognizance cannot, after an appeal, be converted into a bond by amendment. Error to Lee District Court. Opinion by Kinney, J. This was an action of forcible entry and detainer, brought before a justice of the peace, in which the defendant in error recovered judgment. The plaintiffs in error having appealed the case to the district court, the appeal was dismissed for the reason that the ap- pellants had not filed a bond as was required by the statute. The ruling of the court that the plaintiffs in error could not amend, and the dismissal of the appeal, is the alleged error. The instrument purporting to be a bond is in due form , excej)t that it is not under seal, and for this reason the court rejected it. Was this error ? From the peculiar character and phraseology of our statute in relation to proceedings before justices of the peace, we sometimes find difficulty in giving a construction to its various provisions which will harmonize with each other, and at the same time preserve the intention of the legislature. While the legislature in many cases have attempted to protect the judicial proceedings of justices of the peace from attacks for the want of form and technical compliance, it often becomes a serious question to ascertain how far the liberality of legislation upon this subject will sustain these officers in their official blunders. But in view of all the indulgent statutes that have been passed, for the purpose of sheltering justices of the peace from the errors wliich the legislature very properly pre- sumed they woukl commit, still cases will arise in which BURLINaTON, MAY, 1849. 149 Cuddelback v. Parks. the statute cannot be successfully brought to the rescue. While all these errors for which the statue has provided should receive the favorable consideration of the court, the courts cannot disregard those material ones for which the statute has not aiforded a remedy. The statute in relation to forcible entry and detainer, contains provisions peculiar to itself, and the proceedings under it are governed by its own requirements, dissimilar in many respects to other proceedings before justices of the peace. It provides, " that when an appeal is prayed lor, as a candition precedent to granting the same, the justice shall require such party to enter into hond^ with sufficient security, to be approved by said justice." Rev. Stat., 350, § 32. The appeal must be prayed for on the day of trial, and bond must be given within ten days after trial, &c. Giving a bond by the party appealing is made, by the express language of the statute, a condition precedent to the allowance of the appeal by the justice of the peace ; and unless the bond is given, the party is no more entitled to the appeal, than if a bond is tendered after the expira- tion of the ten days allowed by statute. The legislature have provided that the party appealing in other cases before justices of the peace shall enter into recognizance, but they have seen proper to require, in actions of forcible entry and detainer, a bond, and in posi- tive terms have prevented the allowance of the appeal un- less the bond shall have been first given. The statute, from the peculiar natureof the action, is not only much more strin- gent, out ?ntirely distinct from the one in relation to ordi- nary cases before justices of the peace. Was the instru- ment filed in this case a bond in contemplation of law ? Although it may have possessed all other requisites of a bond, it was not one, unless signed and sealed by the par- ties making it. In the case of the Steamboat " Lake of the Woods " v. Shaw* this court say, that when the legis- * Ante, page 91. 150 SUPREME COURT CASES, Cuddelback v. Parks. lature use the word bond, we will presume they mean an instrument under seal. Tliis question underwent an ex- amination in that case, and the court adjudged a recogni- zance sufficient, only upon the ground that a law subse- quent to the one in relation to boats and vessels provided that any person might appeal by entering into a recogni- zance, &c., differing in that particular from the case before us. We agree with the argument of the counsel, that neither the wax nor the scrawl impart any particular virtue to an instrument in point of fact, or that their absence would lessen the security ; yet if the statute requires the scrawl to be affixed, courts are not at liberty to dispense with it, although they might otherwise regard it as really unnecessary, and unworthy the age in which we live. However much we may deprecate the necessity for the distinction in this case, it is no less the duty of this court to declare what the law is, and not what it should be. As there was not any bond given for the appeal in this case as was required by the statute, the court did not err in dismissing the appeal. But it is contended, that if the bond was defective, the appellants had the right to amend under the statute. The section relied upon will be found, upon examination, to apply exclusively to recognizances, and not to bonds, and has no connection with the statute regulating the action of forcible entry and detainer, it being perfect and com- plete within itself. We must first declare, that bonds and recognizances are synonymous in their legal signification and efiect, before we can extend to the plaintiffs in error the benefit of the statute in relation to other ajDpeals when recognizances have been given. The district court did not acquu-e jiu-isdiction of the appeal, so as to enable the part}' to amend. There had not been a compliance with the statute, by which alone the court could be possessed of the cause, and the appeal could not receive any more consideration, than if the pretended bond had not been given. Instead of being a defective bond, it was not a bond at all. As giving the bond was BURLINGTON, MAY, 1849. 151 Daniels v. Bates. a condition f)recedent to allowing the appeal by the justice, unless given, the appeal was improperly allowed, and the court could not take jurisdiction so as to permit an amend- ment or substitution. In the case of Ex parte Chryslin, 4 Cow., 80, it was held, that unless there was a strict compliance with the statute requiring an appeal bond, the court did not ac- quire jurisdiction of the aj^peal, and although the bond was merely defective, the court refused to entertain juris- diction for the purpose of allowing an amendment. In this case, the court are not required to go so far, as there was not any bond filed before the justice, and there- fore we are of the opinion that the court did not err in dismissing the apeah Judgment affirmed. J» C» Hall, for plaintiffs in error. J, M, Becky for defendant. DANIELS V. BATEa When the plaintiff in an action of right waives all but nominal damages, the defendant cannot introduce evidence of a set-off for improvements. Error to Des Moines District Court. Opinion by Greene, J. Joseph S. Bates sued Theodore Daniels in an action of right. The complaint was filed and proceedings had in the district court under the statute regulating the action of right. Rev. Stat., 626. The defendant's plea to the merits craversed the plaintiff's right to the land, and to damages for the detention. Upon the issue, the jury found the right of possession to be in the plaintiff, and assessed his damages at one cent. 152 SUPREME COURT CASES, Daniels v. Bates. It appears by the bill of exceptions, that after the plain- tiff had established his legal title to the premises, and sub- mitted his cause to the jury without evidence of damages, the defendant introduced witnesses to prove the nature and value of permanent improvements made by him on the land in question, in order to recover compensation. To this testimony the plaintiff objected, and waived all right to more than nominal damages of one cent. This objection was sustained, and the defendant precluded from giving the testimony in reference to the improvements. The action of the court below in excluding this testimony is the only error assigned. The 53d section of the act above referred to, is cited to show that the court improperl}^ excluded the testi- mony. That section provides, that ''where the plaintitf in an action of right shall be entitled to damages for with- holding, or using, or injuring his property, the defendant shall be allowed to set-off any permanent improvements he may have made thereon, at their fair value to said plaintiff.*' This involves the inquirj^, whether the defend- ant can claim compensation for permanent improvements in the way of a set-off, where the plaintiff has waived all right to damages. The determination of this question must depend upon the legal construction of the section of the statute above quoted. That a party has a right to waive damages is a self- evident proposition, too obvious to be questioned. After damages have been waived by the plaintiff, the question arises, how can the defendant acquire a set-off? Against what can it operate ? What claim or demand can it coun- terbalance in whole or in part ? It would be doing violence to the common and legal acceptation of the term, to assume that a set-off can be made against nothing, or that a defendant can recover judgment by virtue of a set-off for any amount exceeding the plaintiiFs demand, unless such proceeding is expressl)'' authorized by statute ; and even then the defendant's claim should be distinguished by some other name than that of set-off. Webster defines BURLINGTON, MAY, 1849. 163 Daniels v. Bate?. a set-ofF to be the act of admitting one claim to counter- balance another. In 3 Black., 304, it is defined to be a claim which a defendant has upon a plaintiff, and which he sets ap, or places against the plaintiff's demands. Holt- house, in his Law Dictionary, 393, describes it as a demand which the defendant in an action sets up against the plain- tiff's demand, so as to counterbalance that of the plaintiff, either altogether or in part. Guided by this definition of the term, it will be difficult to apply a sound rule of construction to the section referred to, which will justify compensation to the defendant for improvement, by way of a set-off, where the plaintiff waives all but merely nomi- nal damages. In our view, such a construction would do palpable violence to the obvious language and intention of tlie law. Had the legislature intended compensation to the defendant in such ah action, other than that which would result from a legitimate set-off, but few words would have been required to disclose such intention. But we must be guided by the explicit letter of the law as it is. A clause in the statute, authorizing the defendant in an action of right to recover compensation for permanent improvements, might well be deemed expedient, as it would tend to the advancement of justice, and prevent a multipli- cation of suits ; but such expediency should be addressed to the general assembly, as a reason for amending the act, and not to the com'ts, for a forced and unauthorized con- struction. , In an action before a justice of the peace, the defendant may set-off any demand which he may have against the plaintiff, and if his set-off amounts to more than the plaintiff's debt, a judgment for the excess is authorized by statute. Rev. Stat., 319, § 10. But this provision is limited to actions founded on contracts, and commenced before justices of the peace, and has no application to an action of right. We cannot, then, by mere intendment, extend this provision beyond the letter and spirit of the statute, especially as the construction sought is a departure from principles of common law. Vol. IL 11 154 SUPREME COURT CASES, Cameron v. Boyle. The riglit of tlie teuant or occupant to recover, in a proper action, for permanent improvements, is not pro- perly the subject of inquiry in this case. Judgment affirmed. M. D. Browning, for plaintiff in error, J, C, Hall, for defendant. CAMERON et al. v. BOYLE et at. In an action of debt on a replevin bond, it is a sufficient averment of non payment where the declaration states, " that no part of the said judgment and costs have been paid, and that the whole amount remains due and owing." Where the execution returns state " no property found," it is sufficient to justify an action on a replevin bond under the statute, requiring a return, " that sufficient property of the plaintifTs cannot be found," &c. Judgment cannot be impeached collaterally for mere irregularity. If the important averments of a declaration are made, with a Bufficient regard to the rules of pleading to put the defendant on his defence, they are sufficiently good. When a demurrer is overruled, and the defendant fails to plead over within the time required by rule of court, judgment may be rendered against hinu Judgment may be rendered for the penalty named in a bond, as a secoritj for the damages recovered upon the breaches assessed. Judgment should not be rendered for a greater amount of damages than Is claimed in the declaration. Error to Des Moines District Court, Opinion hy Williams, C. J. This is an action "brought by the plaintiffs below against the defendants on a replevin bond. The plaintiffs' declaration contains two counts. The first is on the obligation as a penal bond in the usual form, setting forth the execution on the day of its date : BURLINGTON, MAY, 184^. 165 Cameron v. Boyle. the acknowledgment of the indebtedness of v-*^00; the liability of the defendants to pay the money on request, and the failure to pay it, although often requested. The second count sets forth the making of the bond, &c., in the usual form, averring that it was subjected to a condition which is in terms set forth as follows : " Now the condition of this bond is such, that whereas said William S. Hathaway and William E. Clifford are about to replevy of one Alexander F. W. Webb and Anthony W. Carpenter,- sheriff, &c., certain dry goods and groceries, described in a certain writ of replevin, now in my posses- sion : Now if said William S. Hathaway and William E. Clifford shall appear at the return term of said writ and prosecute their suit to effect, and shall pay all costs and damages that shall be awarded against them, then this bond shall be void, otherwise remain in full force." Then are added the necessary averments that the bond was duly executed by Hathaway & Clifford, and Cameron & Dolbee as their securities ; that a writ of replevin issued, and that the goods were apprehended and delivered to them, the plaintiffs, in the action of replevin. Then follows the averment, as a breach of the condition of the bond, " that Hathaway & Clifford had failed to ap- pear at the return of said writ, and prosecute the same to effect, and pay all damages and costs that were awarded by the court against them ; but, on the contrary, that at the proper court, a judgment was entered against them, the said Hathaway & Clifford, for the sum of |302.4 as damages in favor of the defendants Carpenter & Webb, and costs of suit. That an execution had issued against the defendants in the said judgment, and a return made thereon of " No property found in my bailiwick on which to levy this writ." The declaration then concludes with the averment, " That no part of the said judgment and costs have been paid; that the whole amount remains due and uu23aid ; that Hathaway & Clifford are non-residents of the county of Des Moines." The liability of the defeud- «nt^i. bv reason of the Dromises is averred, and a general 156 SUPREME COURT CASES, Cameron v. Boyle. averment of a request to pay, and a neglect and refusal to pay the same, or any part thereof, to the plaintiff. Cameron & Dolbee were served with process, the other defendants not found. Cameron appeared and filed his demurrer to the declaration of the plaintiffs, and for cause of demurrer, says : Ist^ There is no sufficient breach assigned in plaintiffs' declaration. 2'>, 2 ib., 186. The objection to the judgment rendered for the penalty, we think is not well taken. This being an action at law on a penal bond, a judgment for the penalty was proper. From the character of the instrument, there could be but one breach assigned. It was competent for the plaintiffs to sue upon the bond, and at the same time declare and claim damages for the breach of the covenant. Rev. Stat., p. 471, § 16. Such has been the practice in this state under the statute, which provides that the judgment may be entered in debt for the penalty, as a security for the breaches, and also, at the same time, if breaches are assigned in the declaration, for such damages as may be proven to have been sustained by the plaintiffs. This mode of procedure fully protects the interests of the parties litigant, whilst it prevents, in IGO SUPREME COURT CASEiS, Cameron v. Boyle. cases like this, circuity of action and accumulation of costs. In this there is no error. The 4th error assigned is well taken. The plaintiffs declare for the sum of $100, as the damages which they have sustained hy reason of the breach of the condition of the bond. The measure of the damages sustained by the plaintiffs did not depend upon the penalty, but upon the breach of the condition of the bond. The plaintiffs, upon the ascertainment of the amount of damages, by proof to the jury, were entitled to recover pro tanto. The sum assessed by the jury, and for which judgment is entered, is $272.68. That claimed in the writ is $3600, debt and $100 damages ; judgment is entered for that amount in debt, and $272.68 as damages. The declara- ation, as to the damages, follows the writ of summons claiming (as damages) $100. This sum is clearly claimed, in the declaration, as the plaintiffs' dam- ages for the breach of the condition of the bond. The plaintiffs can recover no more than they have claimed in their declaration, and as the judgment in debt was to the extent of the writ and declaration, the judgment and damages could not be any part of the judgment for debt as claimed in the argument. There is, therefore, in this, error in the judgment of the court below. Horner v. Hunt, .1 Blackf., 214 ; 3 Scam., 348. This error may, however, be cured by the plaintiff coming into com't now, and entering a remittitur, other- wise the judgment is reversed. Judgment refersed. D. Rorer, for plaintiff in error. J, C» Hall, for defendant. BURLINGTON, MAY, 1849. 161 Hine v. Houston. HI?^E V. HOUSTON. After going into a trial upon the merits, and the plaintiff has proved his claim for work, the defendant should not be permitted to introihiee evidence that the work was done for him and another jointi}', in order to avoid the liability. The omission to join all the parties should be taken advantage of by plea in abatement. Error to Lee District Court. Opinion hy Kinney, J. This was an action commenced before a justice of the peace for work and lahor, in which the defendant in error recovered a judgment. Hine ap- pealed to the district court, and upon trial a judgment was rendered against him for $97.41. From the bill of exceptions taken on the trial by Hine, it appears that after Houston had closed his evidence, the defendant below offered to prove that the work was done for him and Adam Hine, that they were jointly interested in the work, and that it was done by Houston on their joint account. The defendant in error objected to the introduction of this testimony; it was held by the court to be inadmissible. To this ruling Hine excepted, and assigns it for error. This was not error, and the court was right in excluding from the jury the testimony offered. The plaintiff in error could not, at that stage of the trial, prove the joint lia- bility of a third person, and thus escape an individual lia- bility. As Adam Hine was not a party defendant, the introduction of testimony fastening a joint liability upon Aim, could not avail anything upon the trial, except to defeat Houston in his action. He could not without the proper j^lea (having gone to trial) be permitted in this way to prevent a recovery. By the rules of pleading, an ample remedy is provided where there is an omission of the Eecessarv parties, or a nonjoinder of defendants. But the law io well settled, 1G2 CLPREME COURT CASES, Bucklej' V. The State. that he could only take advantage of this by a plea in abatement. If a party defendant be omitted, whether liable to be jointly sued upon a personal contract, or as person of the 23rofits of reol estate as in debt for a rent charge, the advantage can only be taken by a plea in abatement, veri- fied by affidavit; and if this be omitted, the defendant will be chargeable with the whole debt. 1 Chitty's PL, 31. The omission of a joint contractor must be pleaded in abatement. Chitty's PI., 441 ; Lartony. Gilliam, 1 ^com.., 577. That a plea in abatement was the proper remedy in this case for the plaintiff in error, if what he sought to prove was true, we think too clear to require further notice. Judgment affirmed. J. C. Flail, for plaintiff in error, W, J, Cochran, for defendant. BUCKLEY V. THE STATE. An indictment is good, which substantially follows the language of the statute defining the offence. Not necessary that the indictment should charge the offence in the very language of the statute, if words of the same import and equally com- prehensive are used. The name of the person to whom counterfeit money was passed should be set forth with certainty in the indictment, unless the name is unknown; and if so, that fact should be stated. While unmeaning forms should not be enforced, clearness and certainty^ should be required in pleadings. Error to Louisa District Court. Opinion hy Greene, J. This was an indictment for passing counterfeit mone3^ The indictment cliari-es that BURLINGTON, MAY, 1849. 163 Buckley v. The State. Sylvaiius Buckley of &c., on &c., had in his possession in &c., seven pieces of false money and coin, forged and counterfeited to tlie likeness and similitude of the good and legal money and coin within this state, made current by the law and usage thereof, called half dollars, and that the said Sylvanus Buckley the aforesaid pieces of false forged and counterfeit coin then and there did pass, utter and tender in payment as good, with intent, one Italian M. Myler, then and there to injm-e and defraud ; the said Sylvanus Buckley then and there well knowing the afore- said pieces of coin to be false, forged and counterfeit, &c. The question coming up on demurrer in the court below, the indictment was pronounced good and sufficient in law, and the demurrer overruled. The correctness of this ruling is now controverted. It having been repeatedly decided by this court that an indictment is good which substantially follows the lan- gutige of the statute defining the offence, we have but to inquire whether the one at bar can be supported under that test. The clause of the statute upon which this prosecution appears to have been commenced provides, that "if any person shall counterfeit any of the coins of gold, silver or copper currently passing in this territory, or shall alter or put off counterfeit coin or coins, knowing them to be such, &c., every person so offending, upon conviction thereof, shall be fined," &c. It is objected to the indictment, that the words used as descriptive of the offence are not the same as those used in the statute. It is true that it does not contain the words " put off," but words of the same legal import and equally comprehensive are used. The words " pass and utter " are substantially the same, t-liey include the words ''put off," and are even more significant of the offence charged. We regard the indictment in that particular as a substantial compliance with the statute. And the scienter, which is also objected to, is charged in sufficiently explicit terms. But an objection is urged to the indictment of a more 164 SUPREME COURT CASES, Buckley v. The State. serious character. It does not in express terms allege that the counterfeit money was passed or uttered to anj particular person, though it contains language that might justify the inference, that the money was passed upon Italian M. Myler, still, as it does not expressly charge to that effect, it leaves room for doubt. The name of the person to whom counterfeit money was passed should be set forth in the indictment with certainty, unless the name of such person is unknown, and if so, that fact should be stated. Tlie name of such third person should be desig- nated as the one upon whom the offence was committed, not only because he is injured, but because his designation is material as descriptive of the offence. Butler v. T/ie State, 5 Blackf., 280. In relation to the necessity of setting forth the names of third persons in an indictment, see 1 Chitty's C. L., 211; Davis v. The State, 7 Hammond, 204. This defect being material in describing the offence, we cannot regard it as within the meaning of the statute, which declares that " no indictment shall be quashed if an in- dictable offence is clearly charged therein." Rev. Stat., 153, § 46. There is a want of clearness, a degree of am- biguity in that part of the indictment, which renders it inapplicable to the saving clause in the statute. It may as well be observed, however, that the defect complained of in this case would not prove availing after verdict, if not previously raised by demurrer or on motion to quash. Although mere nicety and unmeaning forms should not be encouraged in pleadings, especially in criminal pro- ceedings, where public security mainly depends upon the prompt administration of justice, still carelessness, result- ing in uncertainty and ambiguity, cannot safely be over- looked by courts of justice. Incalculable mischief must necessarily result to parties, uncertainty and disgrace in legal proceedings, unless pleadings are framed with sub- stantial clearness and certainty. Judgment reversed. D. Rorer, for plaintiff in error. BURLINGTON, MAY, 1849. 165 Barney v. Chittenden. BARNEY V. CHITTENDEN et al The conclusive effect of the judgment of partition of the half-breed lands, as establislied by Wright v. Marsh, Lee & Delavan. A majority of. the trustees, under the articles of association, of the New York Company, have power to convey the title of said company to lands in the " half-breed tract," and the conveyance may be made by themselves, or by their attorney. Where it appears to the court that no person interested intends to object to the probate of a will, it may be granted upon the testimony of one sub- scribing witness. The probate court, though limited and inferior in power, had complete origi- nal jurisdiction in administering the estates of decedents; and any judg- ment, order or decree, upon a subject matter, and between parties over which the court had jurisdiction, cannot be collaterallj' questioned. It will not be presumed that the probate of a will was granted without sufficient proof, nor that letters testamentary were issued without the bond required by law. Erkor to Lee District Court. Opinion by Williams, C. J. This is an action of right, commenced in the district court of Lee county by John McKean against John C. Barney, to recover the posses- sion of a tract of land described as the west half of the south-west quarter of section 13, in township 65 north, of range 5 west in said county, which he claimed in fee simple. The suit is instituted for the immediate posses- sion, and damages for detention of the premises. On the loth day of October, 1846, John C. Barney appeared and filed his plea denying the right of McKean, and issue was joined. On the 10th day of June, 1847, the death of John McKean, the plaintiff, was suggested, and his executors, A. B. Chittenden and William F. Telford, were substituted and entered as parties to the suit. The cause was tried at November term, 1848, and a ver- dict and judgment thereon for the plaintiffs. It is now hereupon a writ of error, and the following are the assign- ments : 1, The court erred in admitting in evidence the books 1G6 SUPREME COURT CASES, Barney v. Chittenden. containing the record of partition, as evidence of legal title in Marsh, Lee & Delavan to the property in question. 2. In admitting the power of attorney from Marsh, Lee & Delavan to D. W. Kilbonrne, and the deed from Marsh, Lee & Delavan by D. W. Kilbonrne to Jolm McKean. 3. In admitting the will of John McKean, deceased, the probate thereof, and letters testamentary, as set forth in said bill of exceptions, as evidence of legal title in said plaintiffs below. 4. The court erred in excluding the proof offered, and the instructions asked by defendant below, as contained and set forth in said bill of exceptions ; and in refusing to rule out the record of partition, on the ground that part of said tract at the time of partition was situated in another county. Chittenden and Telford, executors of John McKean de- ceased, the plaintiffs, claim the land by virtue of purchase and a deed of conveyance from Marsh, Lee & Delavan, trustees of the New York Land Company, by David W. Kilbonrne, their attorney. On the trial, the plaintiffs offered in evidence the treaty of the 4th of August, 1824, between the United States and the Sac and Fox Indians, and the act of Congress of the 80th of June, 1834, en- titled "An act to relinquish the reversionary interest of the United States in a certain Indian reservation lying between the rivers Mississippi and Des" Moines." And then offered to read in evidence from two books produced by the clerk of this court, as of record in his office, among the 'proceedings and judgments of the district court in this county, under the territorial government, and bearing the signature of the territorial judge, record of certain pro- ceedings partitioning the " half-breed tract " among the owners, but offered no other evidence than what was furnished by these circumstances of the genuineness or authenticity of the records, or that the books were what they purported to be, or that they were found in the proper depository. To the admission of this evidence, the counsel for the BURLINGTON, MAY, 1840. 167 Barney v. Chittenden. defendant objected. This objection was overruled by the court, and the evidence read to the jury. By the treaty made between the United States and the Sac and Fox tribes of Indians, on the 4th of August, 1824, a large and valuable tract of country lying between the Des Moines and the Mississippi rivers was reserved for the half-breeds of the Sac and Fox tribe of Indians. By an act of Congress passed the 30th of June, 1834, the reversionary interest of the United States in this land was relinquished, so as to vest the fee simple title to them, in the half-breeds aforesaid. The treaty and act of Con- gress both speak of them as a class of people known as " half-breeds," without naming them individually. Josiah Spalding and others, who claimed to be the owners by purchase of shares or undivided interests in these half- breed lands, on the 14th day of April, a.d. 1840, filed their petition for the partition of these lands among the owners thereof. The petition sets forth, that the tract contains about 119,000 acres more or less. The names of claimants are set forth' in the petition, claiming twenty- three and one-third shares, to which they claim the title in fee simple. This proceeding for partition was commenced and con- ducted to judgment under the general partition law of the territory. In the case of Mitchell D. Wright v. Marsh, Lee ^ Delavan* this court has decided the question of the legal effect of the judgment in partition. It is, there- fore, not necessary here to consider that question. It is sufficient to say, that the jurisdiction of the court, and the validity of the judgment of the district court of Lee county, partitioning the land among the owners therein named, have been established and fixed for all the purposes of this case by that decision. The effect of the proceeding in partition, under the statute, in imparting title to the holders of shares under the judgment, is also established by the same decision. * Ante, 94. 168 SUPREME COURT CASES, Barney v. Chitteuden. As tlie first assignment of error is disposed of, we will proceed to consider the questions involved in tlie second. The judgment in partition shows that the land in dis- pute is a portion of the "half-breed tract" which fell among the shares of Marsh, Lee & Delavan, as trustees of the New York Company. John McKean in his lifetime held the land in question by virtue of a deed of conveyance from David W. Kilbourne, who made and executed it, as the attorney of Marsh, Lee & Delavan, trustees of the New York Company, which deed, together with tlie power of attorney, and the articles of association of that company, were offered and read in evidence to the jury by the plaintiff. To this evidence, the defendants' counsel objected. The objection was overruled and exception taken. It is contended that the conveyance from Marsh, Lee & Delavan by Kilbourne, their attorney, to McKean is of no effect, because, by the articles of association of the company, less than the whole number of trustees could not convey title to their lands ; whereas, in this case, but three of the trustees make the deed, by their attorney. The power of the three trustees, Marsh, Lee & Delavan, to convey the title to the land by attorney or otherwise, is denied. By reference to the judgment in partition, apportioning the " half-breed tract" among the owners, we find that the interest or shares of the New York Company were set-off to and vested in Marsh, Lee & Delavan in trust, for the members thereof, without naming any other persons as trustees. The two other trustees, Aikin and Galland, originally named in the articles of association with them, are not recognized m the proceeding in partition, or the judgment. The partition law of this state, under which this land was divided among the owners, provides for the establishment of the interest or titles of the several claim- ants by evidence and trial by jury, unless the parties to the proceeding shall otherwise agree; and that when the various interests or shares shall be so ascertained, judgment BURLINGTON, MAY, 1849. 169 Barney v. Chittenden. shall be rendered confirming them, and that partition be made accordingly. Rev. Stat., 461, §§ 16-19. Tliis judgment in partition had the effect of establish- ing title to these lands in those whose interests were then passed upon and adjudicated. Such has been the decision of this court in the case of Wright v. Marsh, Lee j'Delavan, decided at this term. The New York Company, then, be- ing the owners of that portion of the "half-breed tract" which was set-off to them by the judgment in partition, might dispose of it in accordance with the provisions of their articles of association. We do not deem it necessary here to enquire how or why only three of the trustees of the company, of the five named in the articles of asso- ciation, are made parties in the judgment of partition, as trustees, to whom, by the decision of the court, the inter- ests of the persons composing that company are committed. The articles of association, properly construed, must solve the question here raised. Then, had a majority of the trustees a right to contract for the sale of the company's land, and make a title to the purchaser ? And if so, could such majority empower an attorney to make such contract, and impart the title to the land ? It is contended for the plaintiff in error, that to enable the trustees to sell and convey the title in fee simple to ]\IcKean, that all should have joined in the act, and that as only three out of the five have done so, therefore the deed is void and conveys no title. To sustain this position, the articles of association are referred to. In order to a proper decision of this question, it is neces- sary to examine into the object of the association, and fairly ascertain the intention of the parties, as expressed in their articles. They were entered into on the 22d day of October, 1836, by Joshua Aikin, Isaac Galland, Samuel Marsh, Benjamin F. Lee, William E. Lee, George P Shipman, Henry Seymour, Edward C. Delavan and Erastus Corning, to purchase certain lands situated between the Des Moines and Mississippi rivers, then in Wisconsin territory, pai't of the tract of land known as the " half- VoL. n. 12 170 SUPREME COURT CASES, Barney v. Chittenden. breed tract." After setting forth the nature of the tenure by which the parties were to hold the lands purchased, the extent of the investment of capital, &c., in order the better to enable them to manage the property, &c., among other things it is provided, that the title to all the land purchased for the use of the company shall be conveyed to and vested in the trustees, viz., Joshua Aikin, Isaac Galland, Samuel Marsh, William E. Lee, and Edward C. Delavan, as joint tenants, and not as tenants in common, in trust for the persons and parties interested therein. The proportions in interest of each of the parties are &^ed ; and then the third in'incipal division of the agreement or article proceeds to provide fjr the trustees, their powers, in the following terms : '' Thirdly, And the parties hereto covenant and agree, that the said trustees, or a majority of them, shall have power, and it shall be their duty— "1. To cause the title to said lands and property to be thoroughly examined and established, in such form of pro- ceeding as they may be advised to be proper to protect the parties in interest against any loss or question on account thereof. "2. To cause the land purchased to be surveyed, so that the exact quantity of land acquired by the parties hereto, by the purchases abeady made, or hereafter to be made as herein provided, shall be ascertained." The thhd subdivision directs that they shall cause to be surveyed and laid out town sites, &c. The fourth subdivision of the third article then is as fol- lows : " And the said trustees are hereby authorized to sell and convey from time to time, as they may find oppor- tunity, any part of the lands so purchased, on such terms as to payment, and to take such securities for the pur- chase-money, or any part thereof, as they shall think fit." The fifth subdivision of the same article is as follows : " And the trustees, or a majority of them, are also author- ized to make all contracts, and do all lanfid things and acts that may be necessary or proper, to carry into efi'ect BUJUJXGTON, MAY, 1849. 171 Barney v. Chittenden. the objects of tliis agreement, and to promote the interests of the parties concerned, in respect to the property pm*- chased, and every part thereof." The sixth and last subdivision of this third article pro- vides for the appointing of attorneys, clerks, &c. The succeeding articles provide for the management of the lands, and among other things, for their sale, and the manner in which the avails in money are to be applied for the benefit of the parties. Taking these articles together, we find no difficulty in ascertaining the intent of the jiarties in reference to the power given to the trustees, and the manner in which that power was to be exercised in acquiring, managing and dis- posing of the lands. To supersede the necessity of all the parties to the agreement of association acting in the conducting of the business of the company, with a view to convenience and economy, five trustees were named and duly appointed to act for the whole of the parties interested. By express terms they are to receive, hold and impart title to the lands for the use and in trust for the company. The third article designates the powers of the trustees, and taken in connection with the other portions of the agreement, there can be no doubt that it was intended that their power should be j)leuary, in the purchase, man- agement and. disposal of the lands by the act of the majority of their number. Any other constructiou would, we think, thwart the parties in the accomplishment of the design contemplated. Any one of them, objecting to the sale of any portion of the land, would render it impossible, when it expressly provided that they may sell to accom- plish the object of association. Taking the whole agree- ment together, we find no difficulty in coming to the conclusion that a majority of the trustees had power to impart the title to the plaintiff. But this question is not left for solution to inference, nor is it left for decision dependent upon rules of construction. The power to sell and convey the title, is expressly given 172 SUPREME COURT CASES, Barney v. Chittenden. to the trustees, or a majority of them, by the tliird article or general division of the agreement or articles of associa- tion. This is apparent upon an examination of this article. It provides, that " the parties mutually covenant and agree that the said trustees, or a majority of them, shall have power to do and perform certain acts ; " and proceeds to uesignate and classify them by numbers, from one to six In subdivision. Much stress has been put by the counsel for the plaintiff in error upon the language of the fourth subdivision of this article. This, it is alleged, gives to the whole of the trustees the power to sell and convey the lands, in terms which are specific, and excludes the idea that a majority might do so. The language is : " And the said trustees are hereby authorized to sell and convey,*' &c. Taken in proper connection Avith the commencement of the article, where it is expressly jjrovided, that " the said trustees, or a majority of them, shall have power, and it shall be their duty," to do the things specified in the several subdivisions following, of which this is one, we think, by a proper observance of the rules of legal con- struction, as well as those governing the use of language, the words, '' and the said trustees," will be taken to refer to the trustees as a body, and as set forth in the commence- ment. This conclusion is sustained by the other parts of the agreement, reasonably and fairly construed in view of the obvious design of the parties in forming the associa- tion, and the reasonable use of the means adopted for its accomplishment. But this point is clearly set at rest by the fifth subdivision of this article. The parties to the agreement, after specifying certain things which the trus- tees may do, here empowers '' the said trustees, or a majority of them, to make all contracts, and to do all law- ful things and acts necessary or proper to carry into effect the objects of this agreement," &c. This we consider is designed to give plenary power to the trustees, or a majority of them^ as a board to act for the company. As we have already said, a different construction of the articles of association would not be warranted by the Ian- BURLINGTON, MAY, 1849. 173 Barney v. Chittenden. giiage used, and would put the parties to the agreement in the unreasonable position of using means most likely to prevent the attainment of the object for which the company was formed. This is not a mere trust to hold the title to lands, for the use and benefit of persons incapable of contracting. The design of the association is to get gain and profit by the purchase and sale of lands. The purposes and object of the association are clearly set forth in the articles. It is urged by the counsel of the defendant that the deed from Kilbourne, the attorney of Marsh, Lee and Delavan, the trustees of the company, to McKean, is void, and con- veys no title, for the reason that only three of the five trustees have joined in making it ; that all the trustees must act conjointly in executing the trust. The case of Sinclair v. Jackson^ 8 Cowen, p. 543, is cited to support this doctrine. In that case it is decided that " where a trust is delegated to several for a mere private purpose, they must all join in its execution," and the question is then discussed as to the power of trustees to lease without express power. But Ave find that the chancellor who dvj.ivered the opinion of the court in that case, in discuss- ing the question as to the power of trustees to convey the trust estate separately, says : " As applicable to joint ten- ants of estates in their own rights, this position (that they might lease) may be true ; but the principle cannot apply to trustees. They have no separate interests of their own on which the separate deeds can operate ; they conjointly represent the interests of the cestui que trust, and, unless specially authorized to act separately by the instrument creating the trust, they can make no disposition of the trust estate vested in them, otherwise than by their joint deed." This applies directly to the case at bar. We ha\e already shown that the articles of association specially authorize a majority of the trustees to sell and convey the company lands, so that the principle here avowed establishes the validity of the deed to McKeau. 174 SUPREME COURT CASES, Barney v. Chittenden. Among the antliorities cited, none have questioned the acts of the trustees, when performed in pursuance of express authority. That Marsh, Lee & Delavan, being a majority of the trustee.-, and acting within their trust, have j ower to sell and convey the land in fee simple, under the articles of association, we think, does not admit of a doubt. It is also contended that the trustees could not con- vey the title to the land by attorney. Whether trustees can convey lands by an attorney, without express author- ity to do so in the instrument creating the trust, depends upon the nature of the trust, and the instrument by which the trust is created. In the case at bar, the ques- tion is disposed of by the articles of association, by which the trust is created. The sixth subdivision of the third general article, in speaking of the power vested in the trustees, or a majority of them, provides, " To employ, substitute and authorize such attorney or attor- neys, agents and clerks, as may be necessary in executing the object of their agreement, and in the care and management of said property, and to allow them such compensation for their services as they may think fit." What are " the objects of the agreement to be carried out and necessary to be executed," to do which an attorney or attorneys might be appointed by the trustees, or a majority of them ? Clearly, among many other things, to sell and execute deeds conveying the title to the lands to the purchasers thereof. It will not be contended, seriously, that the parties, owners of these lands, could not, by their solemn agreement, with a view to promote their interests, empower their trustees, or a majority of them, to appoint an attorney to act for them in receiving and imparting title. That such an arrangement would be calculated to facilitate the business and promote the interests of the company is evident. The bill of exceptions shows that Marsh, Lee & Delavan, as trustees for the company, by their power of attorney dated the 6th day of June, 1844, did authorize David W. Kilbourne to act for them in the BURLINGTON, MAY, 1S49. 175 Barney v. Chittenden. purchasing and selling of lands on tlie half-breed tract, and to receive and impart the title, in such manner, and as fully as they could themselves by virtue of the articles of association, for the company. The ruling of the court below, as to this point, is in accordance with the principles of law. We know of no case where it has been decided that the parties owning lands, whether as individuals, or persons associated by agreement in company form, may not authorize and empower in express terms others to act for them in con- ducting their business, or to buy, sell, receive and confer the title to lands. The cases cited by the counsel for the defendant, and ably urged, as applicable to this case, do not affect those of express power given by those having the legal right to impart it. The case of Pearson v. Jameson^ 1 McLeans, 187, is the case of an executor who was empowered to sell an estate " in the best mode in his judgment for the interest of the estate." It was decided that it was " a personal trust," his judgment was relied on for the best interests of the estate. He could not dele- gate said trust to another. Besides, the language of the trust, as created, could not be construed as authorizing him to delegate his power to another, as in the case at bar ; such also is the case in 4 John's Ch., 367. It is there decided that an executor could not delegate the power of selling to an attorney. The principles of law recognized in these cases are indisputable, but cannot be applied to the case at bar. The power to sell and convey the lands of the company, as well as authority to appoint an attorney to act for them in carrying out that power, is expressly given to the trustees, or a majority of them. Marsh, Lee & Delavan, a majority (?f the trustees, confer upon Kilbourne, the attorney, authority to sell and convey the title to the land. The object of the association being legitimate and proper, they who were entrusted, as parties, had a right by agreement to ordain the terms and mode by which they would manage and dispose of their interests in the property. Having done so in plain and express 176 SUPREME COURT CASES, Barney v. Chittenden. terms, it is the dut}'' of tlie court to give to the convey- ance the sanction of law. Construing' the articles of association thus, we think that a majority of the trustees have plenary power to make contracts for the purchase and sale of the lands of the company, and to act by attorney therein. The numerous cases cited by the counsel of the plaintifi in error, on the subject of tlie power of trustees, not expressly given, are not applicable to the case at bar. It is also contended that the district court erred by admitting in evidence the will ol John McKean, deceased. That it was inadmissible, because the probate thereof was made by only one subscribing witness, and no consent or satisfactory evidence shown to have been presented to the court of probate of its execution. The statute of the state on the subject of wills. Rev. Stat., p. 668, § 13, provides, that ''when it shall aj^pear to the judge of probate, by the consent in writing of the heirs at law, or hy other satisfactory evidence, that no person interested in the estate intends to object to the probate of the will, he may, on his discretion, grant probate thereo.^ upon the testimony of one of the sub- scribing witnesses, without requiring the attendance of all of them, although the others should be within reach of the process of the court." The will was made by John McKean, the deceased, in the presence of three subscribing witnesses. It bears date February 23, 1847. Probate thereof was made before Philip Veile, judge of probate for Lee county, on the 2d April, 1847, by the testimony of Peter Young, one of the subscribing witnesses. The probate judge sets out in his record, that on the day last named, Peter Young, one of the subscribing witnesses to the will of John McKean, late of said county, deceased, appeared in the court of probate in said county, and after having been duly sworn, declared on oath that he was present at the execu- tion of said will, and saw the said John McKean sub- scribing his name to the above instrument, and declare BURLINGTON, MAY, 1849. 177 Barney v. Chittenden. that the same was his last will and testament ; and that he, together with Justin Millard and James Hill, the other witness, subscribed their names as witnesses in the, presence of the testator, at his request, and in the presence of each other; and that said John McKean, at the time of executing said will, was of full age and sound mind." The statute cited above vests the probate judge with discretionary power to grant the probate upon the testi- mony of one of the subscribing witnesses, if he be satis- fied, by consent of the heirs or other evidence, that no one interested in the estate intends to object to the pro- bate thereof. It is urged that the probate court did not acquire jurisdiction of the case under the will of John McKean, the deceased, so as to grant the letters testa- mentary to Chittenden and Telford, for the reason that the probate of the will, as made by the judge, was not in accordance with the requirement of the statute on wills. This objection cannot jjrevail here. So far as administra- tion is concerned, both of real and personal estate, the probate courts have, by our statute, the complete original jurisdiction. Though this court may be held, as an infe- rior tribunal, of limited power, being by the statute con- fined in its jurisdiction to the cognizance and judicial adjustment of the estates of decedents ; nevertheless, its judgments, orders and decrees, made within the scope of its specific powers, as prescribed by the statute, are to be regarded as conclusive against collateral attack, when jm-isdiction has attached, as to the parties and the subject matter. The ]3robate of the will by the judge, and the granting of the letters testamentary to Chittenden and Telford, are judicial acts within the proper sphere of the com't in the exercise of its jurisdiction, and cannot be impeached for irregularity such as is here alleged. The court must be presumed to have acted, in ordering the probate of the will, with a sound discretion, in compliance with the stat- ute. In other states the courts have treated the orders 178 SUPREME COURT CASES, Barney v. Chittenden. and decrees of these courts not only as prima fade, but as absolutely conclusive, when acting within the limits of their jurisdictional power. In Pennsylvania, the decrees of this court, on settlement of an account, &c., are placed as far above impeachment as the adjudications of any other courts. McFadden v. Geddis, 17 Serg't & Rawle, 333 ; App V. Driesback, 2 Rawle, 287 ; Wimmer's appeal^ 1 Wheaton, 65. The trust and duty appointed by the will, confirmed upon proof, and adjudged sufficient by the court in granting the letters testamentary to the plaintiffs, furnishes conclusive evidence of the fact to all persons. 1 Con. U. S., 7. In Louisiana 'Hhe sentence of a court of probate ordering the execution of a will is prima facie evidence that it was duly proved. Donaldson v. Wititer, 1 Mart., 137, 144. And also, that when probate transac- tions are put in question, the appointment of the executor or administrator by the court of probate cannot be ques- tioned for error, even if letters were granted to the wrong person, &c. Such defects can only be set right upon appeal. McComh v. Dunbar, 1 Mart., 18, 21. This court, particularly as constituted and regulated by the statute of this state, is presumed to have acted correctly in granting the letters testamentary upon the probate of the will. The 30th section of the act on wills, &c. (see Rev. Stat., Iowa, p. 672) provides, " That the probate of a will, divid- ing real estate, shall be conclusive as to the due execution of the will, in like manner as it is a will of personal estate." We therefore consider the probate of the will, as set forth by the record of the probate court, sufficient foi the purposes of the plaintiffs in this case, establishing the execution of the will, and authorizing the plaintiffs to act as the executors under it. Tlie court possessing entire and general jurisdiction of probate matters under the statute, and being competent to exercise full power in adjudicating them, the presumption is in favor of the correctness of its procedure. Brown v. Wood, 17 Mass., 72; 2 Greenl. on Ev., § 339. The fourth assignment of error is, that the plaintiffs could BURLINGTON, MAY, 1849. 179 Coonrod v. Benson. not sustain their action, not having shown that they exe- cuted bonds, as required by law. What has been already said upon the previous assign- ment is applicable to this. Upon the production of letters testamentary, authorized by the proper officer in due form df law, they were entitled to legal recognition in court, as the executors of the last will and testament of John McKean, to maintain this action in order to the establish- ment of the rights and interests of the estate. Judgment affirmed. Geo. C. Diccon, for plaintiff in error. J. C. ITallf for defendant. COONROD V. BENSON. The neglect of the court to render a judgment non obstante veredicto^ on the ground of an insufficient plea, cannot he urged as error unless a motion was made for such a judgment, and exception taken to the ruling of the court. Error to Louisa District Court. Opinion hy Kinney, J. Coonrod sued Benson in as- sumpsit, and declared upon a note given on the 24th day of February, 1842, calling for |141. The defendant pleaded the general issue, gave notice of the failure of consideration, and pleaded that the right of action did not accrue to the plaintiff within six years before the commencement of the suit. The plaintiff re- plied in short, by consent, to the plea of the statute of limitations, and the cause was submitted to the court upon the issue made by the plea of the statute and the 180 SUPREME COURT CASES, Coonrod v. Benson. plaintiff's replication. The court sustained the plea, and entered judgment for costs against the plaintiff, to which he excepted, and assigns the decision for error. The issue made by the pleadings and tried by the court was simply this — Did the right of action accrue within six years prior to the commencement of the suit ? The defend- ant says in his plea that it did not ; the plaintiff, in his replication, that it did ; and here the parties were at issue. The court, upon this issue, found for the defendant, that the right of action did not accrue within six years ; and this was the fact, as the note was given more than six years prior to the commencement of the suit. The pleader probably supposed, when he filed his repli- cation, that it would have the effect of a demurrer, and would test the question of law tendered by the plea ; but such is not the effect of a replication. Although the plea, according to the repeated decisions of this court, did not, if true, constitute any defence to the action, yet the court could not have decided differently under the state of the pleadings. The issue was merely one of fact, and not of law. The court, by consent, acted in the capacity of jury in determining the fact, and found correctly. But it is now contended by the plaintiff in error, that as the judge was substituted for the jury, the plaintiff having a good cause of action, the defendant having put in a bad plea, and the decision being in favor of that plea, the court should have rendered a judgment for the plaintiff non obstante veredicto. If the case had been submitted to the jury as made by the pleadings, and the jury had found for the defendant, upon motion, the court could have rendered a judgment in favor of the plaintiff non obstante veredicto, and a refusal to enter such judgment would have been good cause of reversal. But it is urged, that as the judge acted in the place of the jury, the same doctrine should obtain. This is true ; but if the plaintiff desired a judgment non obstante vere- dicto, he should have made a motion to that effect, and BURLINGTOi^, MAY, 1849. 181 Forsyth v. Ripley. if it had been overruled and excej^ted to, he could then have had his remedy by writ of error. But the bill of exceptions taken in this case was to the decision of the court in sustaining the plea. We cannot change its character, nor apply it to anything except to the decision which it seeks to correct, and which formed the basis for the exceptions. The plaintiflP, therefore, in this case should have demurred in order to avoid the plea of the statute of limitations. As he did not demm*, and as the plea was no defence to the action when the court found the facts in favor of the defendant, he ought to have moved for a judgment " non obstante veredicto. ^^ As the plaintiff, therefore, has not put his case in a position to claim the aid of this court, and as there was no error in the decision, the judgment must be affii'med. Judgment affirmed. Chimes ^ Starr, for plaintiff in error. 2>. Rarer ^ for defendant. FOESYTH & CO. v. RIPLEY. The statute of limitations, approved February 15, 1843, cannot be pleaded in bar of an action of debt, covenant, &c., within six years after the act com- menced running. The decision in Norris v. Slaughter, 1 G. Greene, 338. approved. The limitation act of 1839, having been unconditionally repealed by the act of 1843, without a saving clause, the time which an indebtedness had run under the old act cannot be included as limitation time under the new act. As the limitation act of 1839 had not been in force the requisite period of six years, nor connected with the Michigan act of 1820, it cannot be pleaded as a bar to an action of debt. 182 SUPREME COURT CASES, Forsyth v. Ripley. A repealed statute of limitations, under which an action had been barred, should be speciall.v pleaded. At common law, payment from lapse of time will not be presumed, unless the debt has run twenty years, and the debtor pleads or alleges payment. No statute should have a retrospect beyond the period of its commencement, nor be so construed as to divest acquired rights. Error to Des Moines District Court. Opinion by Greene, J. This was an action of debt on n note under seal, executed Marcli 8, 1834, by Jolm Ripley, ])uyable three months after date to John A. Forsyth & Co. The defendant pleaded the statute of limitations ; to this plea the plaintiffs demurred, and the demurrer was over- ruled. It is urged that the court erred in overruling the demurrer, on the ground that no statute of limitations had been pleaded, which could operate as a bar to the action. By former adjudications of this court, it has been repeatedly decided that the statute of limitations, approved February 15, 1843, (Rev. Stat., 384,) cannot be success- fully pleaded in an action of debt, covenant, &c., within six years after the act commenced running. As the act acquired no vitality till July 4, 1843, (Rev. Stat., 377, § 1,) and as it repealed, without saving clause or connection, the limitation law then in force, any such action com- menced prior to the 4th July, 1849, cannot be barred under that statute. The present action was commenced Septem- l)cr 9, 1848, and is within the limitation period. This principle was first recognized by this com-t in Norris v. Slaughter, 1 G. Greene, 338. The " several legal inferences " in Norris v. Slaughter, we do not regard as mere dicta, as is claimed by counsel, but as approved rules and established principles, which governed the decision in that case, and which we must continue to recognize as sound principles of law. Having been so repeatedly guided by those rules in analogous decisions, a review of the reasons which led us to their adoption can hardly be deemed necessary. With what- ever favor courts may contemplate such an act, in extend- ing peace and repose to the negligent debtor, we cannot, 1 BURLINGTON, MAY, 1849. 183 Forsyth v. Ripley. by implication, divest the rights of a creditor, by giving to a legislative enactment a retrospective operation. As the act for the limitation of actions, approved January 25, 1839, was unconditionally repealed by the present law, without reservation, connection or saving clause, the time which the indebtedness had run under the old law could not, with a proper regard to legal construction or legis- lative intention, be included as limitation time with the law now in force. And as the act of 1839 had not been in force the requisite period of six years, nor connected with the Michigan act of 1820, it could not, even if pleaded, operate as a bar to tlie present action. Nor could the Michigan act of 1820 be successfully pleaded. That act, if applicable to an action of debt on a writing obligatory, did not commence to run on the present instrument until June 8, 1834, and in less than five years was superseded by the limitation law of 1839, which was also enacted without connection or continuation with the prior statute. But had the indebtedness run a sufficient time under either of the old statutes to bar the action, the repealed law relied upon should have been specially pleaded; other- wise the plea of limitation will be considered as applying only to the law in force. Under this rule, which we regard as salutary, it is not necessary to decide whether the present action is comprehended within the objects of limitation designated by the Michigan act; for neither that, nor the n >t of 1839, can be appropriately urged, as applicable to the present proceeding. It is contended by counsel for the defendant in error, that the court below properly overruled the demurrer, be- cause payment might be presumed at common law, from the lapse of time. This position, for two conclusive reasons, cannot prevail. 1. The lapse of time after the cause of action accrued is not sufficient to justify such a presump- tion in law. 2. A party can only avail himself of this pre- sumption under a plea or allegation of payment. Cowen & Hill's Notes, 316, 350, 351 ; Tibbs v. Clark, 5 Monroe, 526. And even where twenty years have elapsed, the pre- 184 SUPREME COURT CASES, Wile & Fear v. Mutheraon. sumption of payment is not absolute. Such a lapse of time after the right of action accrues, amounts only to a circumstance on which to found the j)resumption of pay- ment, and is not in itself a legal bar to the action. Jack' son V. Pierce, 10 John., 417 ; Bailey v. Jackson, 16 John., 210; McDowelN. Charles, 6 John. Ch. R., 132. In deciding Norris v. Slaughter and the present case on the statute of limitations, we have been mainly guided l)y the wholesome and familiar rule of law, that no statute sliould have a retrospect beyond the period of its com- mencement, and should never be so construed as to divest acquired rights. Dash v. Van Kleeck, 7 John., 477 ; Sayre v. Wisner, 8 Wend., 6G1 ; Fairbanks v. Wood, 17 id., 329; Miller v. Whitaker, 5 Hill, 408; Calkins v. Calkins, 3 Barbom-, 306. Judo-ment reversed. Henry W, Starr, for plaintiff in error. D, Rorer^ for defendant. WILE & FEAR V. MATHERSON. Where a statute of limitations is pleaded, which cannot operate as a bar to the action, and a replication ia filed, that one of the joint debtors had promised payment within six years, to which replication defendant de- murred ; it was held, that the demurrer related back to the first mistake in pleading, and that plaintiff was entitled to judgment on the demurrer. Error to Des Moines District Court. Opinion by Kinney, J. This was an action brought by the defendant in error against the plaintiff in error, upon the record of a judgment from the supreme court of Cin- cinnati. The defendants pleaded, fii-st, nul tiel record; and second, the statute of limitation. BURLINGTON, MAY, 1849. 185 Wile & Fear v. Matherson. The plaintiff replied in short to the first plea ; and as to the second, sets up a promise of payment on the part of Fear, one of the defendants, within six years prior to the commencement of the suit. To the second replication as to the promise of payment, the defendants demurred. The demurrer was overruled and the defendants required to rejoin to the replication. They then withdrew the plea of nul tiel record, and having failed to rejoin to the plain- tifi''s replication to the second plea, a judgment was ren- dered against them; to reverse which, they sued out a writ of error, and assign the decision of the court, over- ruling their demui-rer for error. It was contended at some length in the argument, that a promise of one partner or joint debtor would not take the case out of the statute of limitations as to the co- partner or joint debtor, and hence that the demurrer to the replication to the plea of the statute of limitations, setting up a promise of one of the defendants, was im- properly overruled. The plea in this case was of no avail, according to the decisions of this court in the case of Norris v. Slaughter, 1 G. Greene, 338; and Forsyth v. Ripley* When the, statute of limitations was set up by the plea as a defence, there was no such statute in force, and con- sequently could not be pleaded as a defence to the action. Various statutes of limitations had existed, but as the time l)rescribed for the limitation of actions had never run under any one of them, in consequence of their appeal, without a saving clause as to pre-existing contracts ; and as the repealing statutes were not retroactive by express enactment, it was decided that these statutes could not apply to contracts which had run a part of the time under them as prior laws. Hence the plea in this case is bad ; so also was the replication of the plaintiff, setting up a promise to pay by one of the defendants. The defendants were legally bound to pay the debt with- *Ante, 181. Vol. II. 13 186 SUPREME COURT CASES, Lewis V. Sutliff. out sucli subsequent promise. As the debt was not barred, a promise to pay was unnecessary; as without it, the plain- tiff was entitled to recover. The defendants, therefore, with a bad plea, demurred to a bad replication. The de- murrer looks back to the plea, and if the plea was bad, they are not in a situation to object to a bad replication. The first fault in pleading having originated with them, they were not entitled to judgment upon the demurrer; as a bad replication was good enough for a bad plea. The plea being bad, and the demurrer relating back to the first mistake in pleading, the plaintiff was entitled to a judgment, as the first error was committed by the defend- ants. Barruss v. Maden, 2 John., 145 ; Bennett v. Irwin^ 3 ih.^ 363; Allen v. Crawford^ 7 Cow., 46; United States V. Arthur et al.^ 5 Cranch, 257; 8 East., 442; 11 Johnson, 482, 583, 587. As the plea, therefore, in this case was bad, we think the court were right in rendering a judgment in favor of the plaintiff; and although that court may assign a wrong reason for the judgment, yet if the judgment is right, this court will not reverse. In this view of the case, the question whether the pro- mise of one joint debtor or joint partner will take the case out of the statute of limitations, as to the co-debtor or partner, cannot well be raised, and therefore cannot be decided. Judgment affirmed. J. C. Hall and D, Borer, for plaintiffs in error. Grimes and Starr, for defendant. > * * * < LEWIS V. SUTLIFF. Tlie second section of the attachment act, which authorizes an issue and jniy trial of the facts upon which tlie attacliment issued, is not repealed by tl;e nmciidatorv act of 1S4G. BURLINGTON, MAY, 1849. 187 Lewis V. Sutliff. The certificate of a judge, that the transcript of a record is attested in due form, is authentic evidence of its correctness. Where tlie certificate of a judge is not dated, but is preceded and followed bj' certificates of the clerk, the first dated oa the 18th, and the other on the 31st of Julj", the defect is cured. Error to Lee District Court. Opmion hy Greene, J. Levi SutlifF instituted an action of debt, on a judgment record, against Garry Lewis. After commencing suit, the plaintiif sued out a writ of attachment, and had it levied upon the real and personal property of the defendant. The defendant joined issue upon the facts and allegations contained in the affidavit on which the attachment issued, and demanded a trial of that issue by a jury, but the court refused the trial. To this ruling of the court, the defendant took exception. On the trial of the cause, the plaintiff offered in evidence to the jury a certified copy of a judgment rendered in the court of common pleas, for the county of Trumbull and state of Ohio, in his favor against the defendant. The admission of this record was objected to, on the ground of defective authentication; but the objection was over- ruled and the evidence admitted. Upon this evidence, the plaintiff obtained a verdict and judgment, with an order that the property attached be sold in satisfaction. The decisions of the court in refusing a trial of the attachment issue, and in admitting the record as evi- dence, are assigned as error : 1. The second section of the act, allowing and regulat- ing writs of attachment, provides that upon the return of any writ of attachment, " the defendant may join issue upon the facts and allegations set forth in the affidavit, on which the attachment is sued out ; and thereupon said issue shall be tried by a jury," in like manner, as any other issue of fact is tried. Rev. Stat., 78. In January 184G, the first section of the statute regulating writs of attachment, was amended, by substituting a different class of requi- sites, to be alleged in the affidavit as preliminary to the 188 SUPREME COURT CASES, Lewis V. Sutliff. issuing of tlie writ. But the substitution of this amen- datory act is limited to the first section of the law first referred to, and in no way abrogates or contravenes the second section which authorizes an issue and jury trial. The law of 1846 repeals riothing in the act to which it is amen- datory but the first and second class of requisites, which are designated in the first section, and does not even by implication militate against the right so wisely and justly extended to the defendant in the attachment of having the reasons for issuing the writ tested by investigation. An abuse of this stringent and oppressive process loudly de- manded legislative interposition, when the second section was incorporated as a protection to debtors, against the per- secuting avidity of creditors ; and so far from impairing the shield of protection thus extended, the law of 1846 renders it more ample, by adding exemplary damages in an action on the attachment bond. We cannot, then, in any par- ticular, approve the position assumed by counsel, that this act curtails the rights of a defendant in attachment pro- ceedings ; it rather extends to him additional security. Entertaining, no doubt, that the right of the defendant to a trial of the attachment issue is still authorized by statute, the decision of the court refusing such trial, and ordering the sale of the property attached, to satisfy the judgment, is reversed. 2. The objections urged to the authentication of the record which was admitted in evidence, deserves a brief notice. The certificates attached are as follows : "The state of Ohio,) Trumbull County, j ^^• " I, Warren Young, clerk of the court of com- mon pleas within and for said county of Trumbull and state of Ohio, certify that the foregoing is truly copied from the record of the proceedings of said court in the cause aforesaid." To this are appended the usual test, the date, seal and signature of the clerk in the usual form. The certificate of the clerk is followed by that of the judge, in these words: BURLINGTON, MAY, 1849. 189 Lewis i: Sutliflf. " I, B. F. Wade, president judge of the third judicial circuit of the court of common pleas, of the state of Ohio, in which said circuit said county of Trumbull is included, certify that Warren Young is clerk of said court and that his attestation is in due form, of law. B. F. Wade, Fres. Jnclger The certificate of the clerk properly authenticated, and dated July 31, 1848, is appended to show that Benjamin F. Wade was presiding judge as above, and that the sig- nature is genuine. But this certificate is a superfluous appendage. An examination of the various objections which counsel have ingeniously urged to these certificates, we cannot consider essential. The first certificate of the clerk sufficiently identifies the transcri|)t to be a true copy of the record in the case. It contains all the averments which are usually adjudged material in such an authenti- cation, and being followed by the certificate of the pre- siding judge that the attestation is in due form of law, the record is sufficiently authenticated to give it full faith and credit, under the act of Congress passed May 26, 1790. As decided by this court in Young v. Thayer , 1 G. Greene, 190, the certificate of a judge that the attestation is in due form, is authentic evidence of its correctness. In the pre- sent case, the certificate of the judge is defective in omit- ting the date, but that defect is cured by the certificates of the clerk preceding and following that of the judge. One is dated on the 18tli, and the other on the 31st July, 1848 ; showing that the intermediate certificate of the judge was made between those dates. The judgment of the district com-t rendered pursuant to the verdict is affirmed ; but as the order relative to the attachment issue was erroneous, the defendant in error is adjudged to pay the costs of this court, and a venire de novo is ordered to determine the attachment issue. D. Rorer, for plaintiff in error. L. R. Reeves, for defendant. 190 SUPREME COURT CASES, Huner v. Reeves. HUNER V. REEVES, admr., &c. All co-parties to a judgment, who are entitled to a writ of error, must be joined as plaintiffs in tlie writ; and if eitlier of them refuses to join, still, his name may be used by giving him a bond to indemnify him against damages and costs. Error to Lee District Court. Opinion hy Kinney, J. A motion is made in this case by the attorney for the defendant in error, to dismiss the writ of error, for the I'eason that a bond was not given by Huner to his co-party Bullard, as required by the statute, when co-plaintiifs do not join in the writ. The statute provides : " That any one of two or more persons en- titled to a writ of error, may sue out a writ of error as of course, in the name of the plaintiff in error. Promded such plaintiff in error shall have first filed a bond with the clerk of the district court, where the judgment or decree was rendered in such sum as the clerk shall re- quire, with sufficient sureties to indemnify his co-plaintiff, against all damages and costs, on account of suing out such writ of error." Laws of 1845, p. 26, § 2. Huner and Bullard were the defendants below. Huner alone feels aggrieved by the judgment, and sues out the writ in his own name. This he could not do, without joining his co-plaintiff, and if he had refused to join, he could still use his name in the writ of error, by giving him a bond to indemnify him against damages and costs in compliance with the statute. Giving a bond to co-plaintiffs when they do not join in the writ of error, is made by the statute a condition precedent to the suing out of the writ, an imperative requirement which cannot be dispensed with. The laws prescribing the manner of suing out a writ of error by one party, where there are other parties who do not join in the writ, is inflexible, and unless pursued, or there is evi- dence of a waiver of the bond, this court will not take BURLINGTON, MAY, 1849. 191 Wright V. Phillips. jurisdiction of the cause, and will on motion dismiss the writ. As the writ was sued out in this case by Huner, with- out having first given the bond and joining Bullard, it must be dismissed. The bond being a condition prece- dent, we cannot now permit the plaintiff to file one, nunc pro tunc. Motion granted. J. C. Hall, for plaintiff in error. Zr. R. Beeves, for defendant. - > ■•■» • <- WEIGHT et al. v. PHILLIPS. A motion for a nonsuit, on the ground of plaintiff's failure to appear, will not be granted, if plaintiff appears before the motion is decided. Surveys made by the general government are public, and within the judicial knowledge of courts. A justice of the peace may determine what townships are within his juris- diction ex officio. A substantial compliance with the statute, conferring and regulating the powers of justices of the peace, is all that should be required. In an action of forcible entry and detainer, the jurisdiction of a justice is co-extensive with the county. A verdict defective in form may be corrected by request or consent of the jurors at any time before they are dismissed and the verdict is recorded. In a case taken to the district court by certiorari, an affirmance or a new judgment may be rendered " as the right of the matter may appear." Error to Lee District Court. Opinion by Greene, J. An action of forcible entry and detainer, commenced by John Phillips against Mitchell D. "Wright and 0. Gentry. It appears by the f ran script that the summons was served upon the defendants and made leturnable December 22, 1848, at 10 o'clock, a.m. At the time ajipointed, the defendants appeared and moved 192 SUPREME COURT CASES, Wright V. Phillips. for a nonsuit, on the ground that the hour of trial ^ passed. This motion was overruled, and thereupor, r- defendants moved to dismiss tlie suit, alleging for cause that the complaint did not show that the premises sued for were within the township and county wdthin which suit was brought. This motion was also overruled. The cause was then submitted to a jury, who returned a ver- dict in these words: " We the jury find for the plaintiff." This verdict was signed by all the jurors ; but upon sug- gestion of the justice, it was put in the form provided by statute, and then signed by the foreman. The case was taken to the district court, by writ of certiorari, and tried upon the errors assigned to the pro- ceedings of the justice. In the district court it was de- cided in affirmance of the judgment of the justice, that the defendants unlawfully detained the premises of the plaintiff, as alleged in his complaint, and that restitution of the property should be made. The judgment contains a particular description of the land, in directing imme- diate possession thereof, to be restored to the plaintiff. To these proceedings various objections have been urged in this court : 1. It is alleged that the court below erred in not reversing the judgment of the justice for the errors assigned on certiorari. It is contended, that the justice should have granted a nonsuit on the application of the defendants. Upon this point we are informed by the re- tm-ns of the justice, that " on the day of trial after the hour of eleven o'clock, the defendants appeared and asked for a nonsuit, which motion was still pending when the plain- tiff appeared by his attorney." With the appearance of the plaintiff, the reason for the motion was removed, and it was very properly overruled. It is provided by statute that '' if the plaintiff does not appear by himself, or agent, on the day of trial, he shall be nonsuited, and judgment entered against him for the costs." Rev. Stat.. 347, § 13. But the plaintiff did appear, and that too before a deci- sion of the motion was made. Under such circumstances BURLINGTON, MAY, 1849. 193 Wright V. Phillies. it would have been irregular to order a nonsuit. Smith V. Crane, 12 Vt., 487. It is also contended, that the justice erroneously over- ruled the motion made against the sufficiency of the com- ])hiint, on the assumption that it contained no allegation that the premises lay in the township for which the justice was elected. The complaint is introduced by the foHow- ing words : " Before L. B. Fleak, a justice of the peace in and for Jackson township, Lee county, Iowa." In the body of the complaint, the land is described as being " in said county, and known as the east half of the south-west quarter of section 24, township 65, range 5 west." A\'e think the venue is sufficiently averred in the complaint, even if the jurisdiction of justices in such cases was limited to their respective townships. It virtually alleges the land to be in Lee county, and de- scribes it by U. S. government surveys. These surveys are public and within the judicial knowledge of all our courts. That township 65, in range 5 west, is within Jackson township, in Lee county, is a matter which a justice of the peace of that county might well determine ex officio. It must be presumed that he knows the terri- torial extent of his own jurisdiction, and the lands therein, as designated by the public surveys. Under this view, we assume that the complaint is sufficient, even if tested by the technical rule, that the pleadings before inferior tribunals must show jurisdiction. But this rule is greatly relaxed in its application to justices of the peace. Their proceedings must necessarily be regarded with more indul- gence and liberality. Nothing more should be required of them, than a substantial compliance with the statute, conferring and regulating their powers. The complaint in this case comes within the regulations of the act. Rev. Stat., 345, § 6. There is a still stronger reason "why the motion in quest'fui should not have prevailed. It is expressly pro- vided by statute, that " the jurisdiction of justices of the peace shall be co-extensive with their respective counties." 194 SUPREME COUKT CASES, Wright V. Phillips. Rev. Stat., 312, § 16. There is another section, it is true, requiring every action to be brought before a justice of the township wherein the defendant resides, or wherein the phiintifF resides and the defendant may be found. Rev. Stat., 314, § 31. To this limitation, however, there are several exceptions, even in the three sections immediately following the one in which the limitation is established ; and on page 345, § 5, actions of forcible entry and de- tainer, and of unlawful detainer, " are made cognizable before any justice of the peace of the county in which the offences may be committed." The section last referred to applies exclusively to actions of forcible entry and detainer, and unlawful detainer, and makes those actions an excep- tion to the township restraint, enacted in the preceding sections, by expressly providing that any justice of the peace in the county shall have cognizance of such actions. The jurisdiction of justices being co-extensive with the county in this proceeding, and the complaint designating the premises as being within the appropriate county, it averred in that particular all that was necessary. The next objection is in relation to the verdict. It ap- pears that it was not returned in the form provided by law. The justice informed the jurors of the fact, and they then requested him to wi'ite one in due form. He did so, and it was signed by their foreman. Though corrected in form, it was not changed in substance; nor was it even cor- rected without the consent of the jury. Upon this point, the amended return of the justice shows, that when the jurors returned with their verdict, he informed them that it was not in proper form, and therefore they requested him to draw up such a verdict as the case required. The amended verdict was prei)ared at the request of the jurors, and by the signature of their foreman was virtually adopted by them, and thus became as much their verdict, as if it had been written by one of their own number. The pro- ceeding was proper. It was the duty of the justice to advise the jurors in relation to the forms provided bylaw; to admonish thcni of any apparent defects, and direct their BURLINGTON, MAY, 1849. 195 Wright V. Phillipa. correction. If this duty could be more generally per- formed by justices, much less irregularity, injustice and delay would result from their proceedings. It is not an unusual practice for com'ts to direct im- perfect verdicts to be corrected. They are not final until pronounced in open court, and entered upon its record or docket. Corrections and alterations may be made by the jurors, at any time before they are dismissed, and before their verdict is recorded. Root v. SJierwood^ 6 John. , 68 ; Blackley v. Sheldon, 7 ib. , 32 ; The State v. Undemoody 2 Ala., 744; Ward \. Bailey, 10 SheiJ., 316; Tarlton\. Briscoe, 1 A. K. Marsh., 67 By many courts it has been determined, that any in- formality in a verdict maybe corrected even after the jury are discharged. In Foster v. Caldwell, 18 Vt., (3 Washb.) 176, upon an issue in assumpsit a verdict of "guilty" was returned, and after the jury were discharged the court per- mitted the verdict to be amended, by striking out the word " guilty," and inserting " did assume and promise." This in the supreme court of that state was held to be correct. If such an alteration may be correctly made after the jury are dispersed, the propriety of the amended verdict in the present case cannot be questioned. It is not a more material departure from the original return, and it appears, besides, to have been made by the direction and consent of the jury before they were discharged. In our territorial supreme court, it was decided, that though a verdict cannot be changed in meaning, it may be altered in form, without the consent of the jury, even after they have separated. Gordon v. Higley, Morris, 13. We conclude, then, that the district court did not err in refusing to reverse the judgment of the justice for the errors urged on certiorari. 2. The second error assigned in this com't is, that the court below rendered an original judgment instead of affirming that of the justice. The power of the district court over judgments of justices is not confined to a mere affirmance or reversal of their decisions : but a decision 196 SUPREME COURT CASES, Kerr v. Leigliton. is to be given " as tlie riglit of the matter may appear." li " may affirm or reverse the judgment in whole or in part, and may issue executions as in other judgments ren- dered before said court," Rev. Stat., 337, § 5. The judg- ment of the district court is virtually an affirmance of the proceedings, according to "the right of the matter," as it appeared of record. It in no way conflicted with the verdict and judgment of the justice ; but in pursuance of them, a more formal and specific judgment was rendered, which might be enforced, and from which a writ of resti- tution and execution might issue. This, we think, was done within the legitimate authority of the court, and within the letter of the statute. Judgment aflirmed. J. C. Hall, for plaintiffs in error, L, R, Reeves, for defendant. KERU V. LEIGHTON. Two contiguous quarter sectious of land may be regarded as one entire tract or possession. The "act to allow and regulate the action of right" provides a remedy to recover the possession of land, and also a remedy to determine the title. To enable the plaintiff" to recover in an action of right, it should appear that the defendant acted as owner, landlord or tenant of the property claimed ; and if as tenant that lie was in possession. Where the defendant pleads to an action of right, in the form provided by statute, he virtually admits himself in possession. As possession is not denied by such a plea, it need not be proved. If plaintiff seeks to recover more than nominal damages for withholding the premises in an action of right, proof of the time and circumstances becomes essential. The .judgment of a court of competent and general jurisdiction cannot be collaterally assailed. BURLINGTON, MAY, 1849. 197 Kerr v. Leierhton. Error to Lee District Court, Opinion hy Greene, J. This was an action of right instituted hy William Leighton against Alexander Kerr. In the declaration, the plaintiff claimed right to the im- mediate possession of the north-east quarter of section 9, and the nortli-west quarter of section 10, in township 65 north, of range 5 west, of the 5th principal meridian. Tins land comprises a portion of the half-hreed tract in Lee county. The cause was submitted to a jmy under the general issue and a verdict retm^ned finding the right of the property to be in the plaintiff below. He ap[)ears to have derived title to the land in question from Antoine Leclaire. In order to establish Leclau'e's title, and right to convey the premises, the partition record of the half-breed reservation was admitted in evidence. Several questions were raised against the admissibility of this record; but as the same questions were adjudicated and decided in Wright v. Marsh, Lee ^ Delavan* it is unnecessary to consider them here. We will therefore entertain such points only as were not acted upon in that case. 1. It is urged as error that the court instructed the jmy that " if they found from the evidence that said defendant was in possession of the land, or any portion of the land described in plaintiff's declaration, that was sufficient to entitle the plaihtiff to recover the whole, so far as the question of possession is concerned ; " and also in refusing to instruct the jury that, unless they find from the evidence that at the commencement of this suit the defendant was in possession of said north-west quarter sectiou or claimed the same, as owner and landlord, they will find for the defendant to the extent of such north- west quarter. The objection to the instruction given, and to the in- * Ante, 94. 198 SUPREME COURT CASES, Kerr v. Leighton. struction refused, contemplates that tlie two quarter sec- tions of land described in tlie declaration are separate and distinct tracts, and that proving possession of one does not establish possession of the other, as a portion of the same body of land. But it does not follow that land is in separate and different parcels which is comprised in dif- ferent quarters or in different sections. It may be one complete tract, one entire plantation or possession, though embraced in several sections, or even in different townships. A possession is not necessarily limited to one subdivision of land. If so limited, no one possession could extend beyond the smallest legal subdivision ; even an eighty acre lot would be regarded as separate portions of land, because embracing two distinct subdivisions as regulated by law of Congress. But it is conceded by the counsel m-f^ing error, that a quarter section may be treated as one l>arcel of land. If a quarter section may be so regarded, why not a half section, or a whole section ? In the present case the declaration claims " a tract of land with the jijjpurtenances," designates two quarter sections as com- posing that tract, and refers to them as a property to which the plaintiff has immediate right of possession. Besides, the two quarter sections lie contiguous to each other. They are no way separated by other lands or possessions, and cannot therefore be considered separate portions. Evidence of possession then would extend to both quarter sections. But it is contended by counsel for the defendant in error, that it was not necessary for the demandant below to prove that the defendant was in possession of the property claimed, in order to recover. The " act to allow and regulate the action of right," (Rev. Stat.,) 626, en- larges upon the common law writ of right. It supersedes the action of ejectment, (§ 20,) and furnishes within its ample provisions an adequate remedy for mere possessory rights, and also to establish actual seizin, or inheritance in lands. The first section declares, *' that hereafter the BURLINGTON, MAY, 1849. 199 Kerr v. Leighton. proper remedy for recovering any interest in lands, tene- ments or hereditaments shall be by an action of right." The fourth section provides, that '' the action may be brought against any person acting as owner, landlord or tenant of the property claimed." It appears, then, that the action may be brought against persons not in possession of the premises ; against him who acts as owner or landlord, — and a person may act in either of these capacities without being in possession. The de- fendant may even be a non-resident of the county in which the property is situated. Rev. Stat., p. 527, §§8, 9, 11. To enable the plaintiff to recover in this action, it should appear by evidence, or by the pleadings, that the defend- ant acted as owner, landlord or tenant of the property claimed ; and if as tenant, it should appear, that he was in possession of the premises at the commencement of the suit ; for, in this particular, the action is assimilated to that of ejectment. Where the defendant pleads to the merits in the form provided by statute, he denies the right of the plaintiff to the land, and to damages for its detention. He virtually confesses possession by this plea, but seeks to avoid dam- ages by denying the plaintiff's right to the premises. As the plea joins the mise or issue upon the right of posses- sion, or actual seizin of the property, possession need not be proved because it is not denied. If, however, the plaintiff seeks to recover more than nominal damages for withholding the premises, proof of the time and circumstances of the detention becomes essential. 2. As another objection to the proceedings below, the plaintiff in error complains that he was not permitted to show fraud and collusion in the judgment of partition, under which the defendant in error deduced title. This evidence was, we think, very properly excluded. That a judgment emanating from a court of competent and gene- 200 SUPREME COURT CASES. Kerr v. Leighton. ral jurisdiction cannot be collaterally assailed, we have already decided in the case of Wright v. Marsh, Lee ^ Delavan;* and such a judgment is removed even be- yond the collateral imputation of fraud. Webster v. Reid^ Morris, 467. Judgment affirmed. Geo. C. Dixon, for plaintiff in error. S. T- Reidj for defendant. • Ante, 94. CASES IN LAW AND EQUITY, DETEBMLNEO IN THB SUPREME COURT OF THE STATE OF IOWA, OTTUMWA, JUNE TERM, A.D. 1849, In the Third Year of the State, Hon. JOSEPH WILLIAMS, Chief Justice. Eon. JOHN F. KINNEY, ) ^ , Hon. GEO. GREENE, J Juag^ HAEROW et al. v. BAKER et al In an action of forcible entry and detainer, proof that the party in posses- sion was frightened by threats, or other circumstances, to yield his posses- sion to the defendant, is sufficient to show that the entry was forcible. Threats that induce fear of forcible entry and ouster, -without fear of per- sonal violence, are sufficient to establish a forcible entry. Error to Davis District Court. Opinion by Kinney, J. This was an action of forcible entry and detainer, commenced before a justice of tlie peace. Judgment was rendered against the defendants in error before the justice. The case was appealed to the district court, and judgment in the district court was ob- tained against the plaintiffs in error, to reverse which he brings this writ of error. The plaintiffs assign for error : Vol. II. 14 202 SUrREME COURT CASES, Harrow v. Baker. 1. The court erred in cliarging the jury, that threats to dispossess by force, did not amount to forcible entry. 2. The court erred in charging the jury, that if Harrow left from fear produced by threats and superior numbers, it should be fear of personal violence to himself or family, and not merely fear that a forcible entry and ouster would be made. It appears from the bill of exceptions, that the plaintiffs in error were the lessees of Agnes Baker, of a farm and dwelling-house in Wapello county, of which she wished to obtain possession. She went to the house on Sunday morning, and requested Harrow, who was then the sole occupant, to leave, which he appeared willing to do as soon as he could find another place, and offered to give up one room in which to place her goods. Agnes Baker then left, and returned in the afternoon with one Chapman, and about thirty other men, who expressed to Harrow a determination that he should leave immediately, or they would dispossess him by force. They gave him until twelve o'clock at noon the next day, declaring, that if he did not leave by that time, they would put him out. Harrow agreed to be out by the next day. It seems that at the time appointed, Agnes Baker, Chapman, and the crowd again assembled at the house, bringing the household goods of Agnes, for the purpose of putting her in possession, and removing Harrow, if still there. A portion of Harrow's goods were out of the house, and the crowd assisted in removing the remainder, and putting those of Agnes Baker in. It ai3pears that Harrow resisted putting in the goods of Baker. This is the evidence upon which the instructions of the court were loredicated. The court charged the jury, that threats to dispossess by force did not amount to forcible entry. If Harrow left from fear produced by threats and superior numbers, it should be fear of personal violence to himself or family, and not merely fear that a forcible entry and ouster would be made. The court also instructed the jury, that he who OTTUMWA, JUNE, 1849. 203 Harrow v. Baker. abandons his possession to avoid being turned out by force uninjured, is not forcibly dispossessed, &c. Other instruc- tions were given ; but if in these the court erred, it will not be necessary to go fui-ther, particularly as these were applicable to the state of facts upon the trial. The Rev. Stat., 345, § 2, clearly defines what shall con- stitute forcible entry and detainer. It provides, " that if any person shall, by such words or actions as have a natu- ral tendency to excite fear or apprehension of danger, or by putting out of doors or carrying away the goods of the party in possession, or by entering peaceably and then turning out by force, or frightening by threats or other circumstances of terror^ the party to yield possession, in >ucli case every person so offending shall be deemed guilty of a forcible entry and detainer, within the meaning of this act." This statute is very comprehensive, and under it this action can be maintained where actual physical force is not used in the entry and detainer. If the party in pos- session is frightened, by threats or other circumstances of terror, to yield his possession to another, the entry is forcible. In England, proceedings of this kind are either by indictment, or by a complaint before a justice of the peace, in the nature of a criminal prosecution. That which by their law is made an offence punishable by fine and imprisonment, is by ours a civil action to obtain pos- session ; and hence a resort to intimidation and threats, accompanied with an array of force and power to obtain possession of premises, which, although wrongfully with- held, ought to be regarded by the courts with great dis- favor. If Harrow was holding over without color of right, the party entitled to possession had a remedy at law. But in lieu of invoking the law for assistance and relief, she resorts to the strong arm of physical force, and in this manner obtains possession. But, did the court err in instructing the jury that threats to dispossess by force did not amount to a forcible 204 SUPREME COURT CASES, Harrow v. Baker. entry, &c. ? By tlie English autliorities tliese instructions may have been correct. But we think, under our statute giving the remedy in cases where force or personal violence were not actually used, and thus saving the necessity of a personal conflict before the right of action could accrue, that the instructions are erroneous. The statute of Illinois provides, '' that if any person shall make entry into lands, tenements or other posses- sions, except where entry is given by law, or shall make any such entry hj force,'''' kc. This statute declares that the entry shall be by force, without any qualification, and yet it was held under this statute, by the supreme court, that if the entry was wrongful, and without lawful right, that actual force and physical violence were not necessary to sustain the action. Atkinson v. Lester, 1 Scam., 407. In the case of The State v. Pollock, 4t Iredell's R., 305, it was held, that " where a party entering upon land in the possession of another, either by his behaviour or speech gives those who are in possession just cause to fear that he will do them some bodily harm if they do not give way to him, his entry is esteemed forcible." The English doctrine that force was necessary, does not appear to be regarded as essential in this case. We are not aware of the provisions of the statute under which this decision was made. But by our statute, the right of action may be complete in the absence of all force. Any circumstance of terror, which will induce the party to yield possession, is all that is necessary. Threats which would have a tendency to excite fear, not of personal violence alone, but reasonable fear of a violent ouster of the goods of the person in pos- session, we think, under our statute, will enable the party dispossessed by such fear to recover possession in an action of forcible entry and detainer. This is the only fair and legal construction that can be given to this statute, and such a one as we think was intended by the legisla- ture, thereby preventing persons from resorting in a rude, OTTL'MWA, JUNE, 1849. 205 Wiley V- Shoemak. violent and lawless manner, to a remedy fraught with such dangerous consequences. The court therefore erred in charging the jury, that if Harrow left from fear produced by threats and superior numbers, it should be fear of personal violence to himself or family, and not merely fear that a forcible entry and ouster would be made ; as also in the instruction that he who abandons his possession to avoid being turned out by force, uninjured, is not forcibly dispossessed. It is not necessary that a person should wait until he is actually turned out by force, before his right of action is complete. Judgment reversed. J, C, Hall, Wright and Knapp, for plaintiff in error. S. W, Summers and Geo, May, for defendant. WILEY V. SHOEMAK. If evidence is adduced wliich tends even remotely to prove facts, ■which, if established, would support the action, a nonsuit should not be sranted. If a verdict for the plaintiff would be clearly against the weight and legal effect of the evidence, a nonsuit may be ordered. A motion to nonsuit plaintiff after evidence is submitted, is in the nature of a demurrer to evidence. A nonsuit should not be granted without the consent of plaintiff, unless the evidence is entirely irrelevant, or has no bearing upon a material point, without proof of which a verdict could not be supported. After a note for a certain sum, payable in flour, is due, it becomes a cash note, and a demand of payment is not necessary. Ekror to Jefferson District Court. Opinion by Greene, J. This case was taken by appeal from a justice of the peace to the district court. On the trial in that court, a promissory note made by Abner Wiley, and payable to John Shoemak in flour, at the Fair- 206 SUPREME COUKT CASES, Wiley V. Slioemak. field prices, was read in evidence. The i)laintiff proved that he demanded the flour about the time suit was commenced, and rested his case ; and thereupon the defendant moved to nonsuit the plaintiff, which the court refused. Verdict and judgment for the plaintiff. Two questions are submitted to our determination : 1. Did the court err in overruling the motion to non- suit the plaintiff ? To this we give an unqualified answer in the negative. Even assuming the supposition that the plaintiff had not adduced sufficient evidence to make out his case conclu- sively, it would still have been improper to grant the motion, and thus preclude the action of the jury upon the question at issue. The sufficiency of the testimony, in proving the demand, could only be passed upon legiti- mately by the jury ; and the legal effect of such proof would come properly under the determination of the court. Wilkinson v. Scott, 1 7 Mas. , 249. This rule must especially obtain under the statute of our state, as shown by former decisions of this court. And it is a doctrine that should be recognized wherever the right of trial by jury is held sacred, that when the evidence tends, although remotely, to show facts, which, if established, would supi3ort the action, a nonsuit ought not to be ordered, but the case should be submitted to the jury. This is conceded even in Maine, where arbitrary nonsuits, per curiam, appear to be most in vogue. Foster v. Dixfield, 6 Shep. , 380. On this point, see also Barlow v. Brands, 3 Green, N. J., 248; Adams V. Tiernan, 5 Dana, 394; Taylor v. White, 2 Monr., 94; Davis V. Hoxey, 1 Scam., 406. But if a verdict for the plaintiff would be against the clear weight and effect of the evidence, a nonsuit may be ordered. Rudd v. Davis, 7 Hill, 529 ; 3 ib., 287. This must necessarily follow from the character of the motion to nonsuit the plaintiff. It is like a demurrer to evidence, and admits all the facts to be proved, upon which the evidence bears. If all the facts adverted to by the proof are not sufficient to sustain the action at law, a nonsuit could properly be awarded by the court. OTTUMWA, JUNE, 184^. 207 Wiley V. Slioemak. Gregory v. Neshit^ 5 Dana, 419; Curler. Beers, 3 J. J. Marsh., 170. In the present case, it is conceded, that the only fact requiring proof was the demand, and that at least conkl be rationally inferred from the evidence ; hence the court acted jDroj^erly in refusing the nonsuit. Again, it is a well recognized rule of law, that a nonsuit cannot be ordered by the court without the consent of the plaintiff. Be Wolfe v. Rabajid, 1 Pet., 447; Dove v. Grymes, ib., 469 ; Crane v. Morris, 6 ib., 598 ; Mitchell x. New England Marine Insurance Company, 6 Pick., 117; Hunt V. Stewart, 7 Ala., 525 ; Martin v. Webb, 5 Pike, 72 ; St. Louis Floating Bock Ins. Co., 8 Mo., 625; Wells v. Goty, ib., 681; Smith v. Crane, 12 Vt., 487; Booe v. Davis, 6 Blackf., 115; Irving v. Sargent, 1 S. & K, 360; Rogers v. Madden, 2 Bailey, 321. This we deem the safest practice ; still it is not unusual for com'ts to entertain the ■ power of ordering a nonsuit, regardless of plaintiff's acqui- escence, when the evidence is entirely irrelevant, and has no legitimate bearing upon the issue or upon a material point, withoift proof of which a verdict could not be sup- jiorted. Clason v. Bird, 2 Brev. S. C, 370; Fratt v. Hull, 13 Johns., 334; FootY. Sabin, 19 ib., 159; Heally v. Utley, 1 Cowen, 353. But even in these cases, it is conceded that, if any fact is in dispute or doubt, the matter should abide the verdict of a jury. It is only when there is an entire failure of evidence to establish any one essential averment, that the court should direct the plaintiff to be nonsuited. 1 Starkie's Ev., 400. 2. Was a demand of the flour necessary at law ? Clearly not. The note was made payable one day after date, in flour. When due, it became to the holder the same as a cash note, possessing lilce negotiable qualities, and subject to like liabilities and remedies. In Church v. Feterow, 2 Penn., 301, it was held that when a note is given for the payment of a certain sum, in furniture or other specific articles, within a stated time, the payer has an election to satisfy the note, in such specific articles or in money, until the day of payment, but after 208 SUPREME COURT CASES, Lucas V. Cassaday. that day is past, his election is gone, and the payee's right to demand money becomes absolute. So also in Stewart V. Donelly, 4 Yerg., 177 ; Saunders v. Richardson^ 2 Sm. 6 Marsh., 90; Orr v. Williams, 5 Humph., 423 ; Lawrence V. DougUery, 5 Yerg., 435 ; Miller v. McClain, 10 ih., 245; Vanhooser v. Logan, 3 Scam., 389; Plowman v. Riddle, 7 Ala., 775. And in New York it has been decided, that a note for a certain sum payable in property may be given in evidence under the money counts. Smith v. Smith, 2 John., 235. In the case at bar, the note had been some time due before suit was commenced, and thereupon became payable in cash ; a demand of the flour was not necessary to enable the holder to recover. It was held in Elkins v. Parkhurst, 17 Vt., 105, that when a note is payable in specific articles on a day certain, no demand is necessary before bringing suit. Thus viewing these authorities, and not regarding the case of Wyatt v. Bailey, Morris, 396, as analogous, we can see no error in the proceeding below. Judgment affirmed. Slagle and Achison, for plaintiff in error. Charles NeguSy for defendant. LUCAS V. CASSADAY. Where execution returns show that sufficient property was levied npon and appraised to satisfy the judgment, the constable who made the levy and return is not a competent witness to prove that the execution was not satisfied by the levy. After levy by execution on goods and chattels, sufficient to satisfy the jud":- meni, the defendant in the execution is divested of his right to the pro- perty ; and the u.licer making the levy becomes liable to the plaintiff for OTTUMWA, JUNE, 1849. 209 Lucas *. Cassaday. the debt if he fail to perform his duty according to the requirements of law, or be released by the plaintiff. After a return by the officer that property sufficient to satisfy the judgment has been levied on, the defendant in the execution is, jjrinia facie, dis- charged from tiie debt. In a trial before a probate court, to charire an estate with an old judgment which is claimed to have been satished by a levy of property, proof is admissible to show that one of tiie defendants in the judgment was a security, and that the principal became insolvent after his property was levied upon to satisfy the judgment. Error to Van Buren District Court. Opinion by Williams, C. J. This case came up by appeal from the decision of the probate court of Van Buren count}-. The facts of the case appear in the bill of exceptions. John Lucas, assignee of William Willis, brought his suit against David Cassaday and William Cassaday, on a promissory note drawn in favor of said Willis, for $25 payable in pork, at the customary price, to be ■ delivered at Keosauqua, on or before the 25th day of December, 1844. The note bears date September 15, 1844. On the 24th of October, 1844, the note was as- signed by indorsement in wi'iting by said Willis to John Lucas. On the 28th day of May, 1845, suit to enforce the payment of the note was instituted by Lucas against the payers, before a justice of the peace, and judgment by default was rendered against the defendants, for the sum of $25 with interest and costs of suit. Upon this judgment an execution was issued on the 9th day of June, 1845, and put into the hands of a constable, and returned with the following indorsed as his retmm thereon : " Not satisfied, one wagon held under execution ap- praised at $50." On the 27th of April, 1846, another execution was issued and returned by same constable, " Not satisfied." On the 26th of April, 1847, another execution was issued and put into the hands of a con- stable, and by him returned on the 22d of May, " No l^rojjcrty found." This being the statement of the facts of the case as presented to the district court, from the 210 SUPREME COURT CASES, Lucas V. Cassaday. record of the justice of the peace, the plaintiffs in the next phice offered to introduce the parole evidence of Richard B. Ahernethy, the constable, who took the wagon on the first execution, as appeared by his return, to prove that he had re-delivered the wagon, levied* on, to the defendant, without satisfaction of the same or any part thereof. The defendant's counsel objected to this witness, as in- competent, on the ground that he could not be allowed, by his own testimony, to throw the debt upon the defend- ant and thus discharge himself from liability to pay the plaintiff's debt ; or from accounting for the wagon with which, by his official return, he now stands legally charged; and claims that the official return of the constable could not be thus contradicted. The court refused to allow the witness to testify as offered. To this ruling of the court the counsel for the plaintiff excepted, and thereupon rested his case. The defendant's counsel then offered to pro-ve on his part that William Cassaday, deceased, and whose administrators are defendants in this suit, was the security of David Cassaday, who died since the making of the note sued on, and that his estate is insolvent, and that the plaintiff knew this fact ; and also that the wagon levied on was the property of said David, which fact the plaintiff also knew. To this evidence plaintiff's attorney objected. The objection was overruled by the com't, on the ground that this was a proceeding in the pro- bate court, under the intestate laws, and of such a nature " that any defence, either at law or in equity, might be set up to defeat his claim." The evidence was there- fore received, and tended to prove said facts. To this ruling of the court the plaintiff's counsel excepted. The case was submitted to the court without a jury by agree- ment. The court found the facts to be as stated in the transcript of the justice and the return of the probate court, and held that the wagon taken on execution, being of sufficient value to satisfy the judgment, and no account having been given of the disposal made of it, that the judgment was, prima facie ^ satisfied, and gave judgment OTTUMWA, JUNE, 1849. 211 Lucas V. Cassaday. for the defendant; to which the plaintiff's counsel ex- cepted. The following errors were assigned : 1. " Tlie district court erred in excluding the testi- mony of llichard B. Abernethy, a witness offered on the part of the plaintiff." 2. " The district court decided that the returns of the constable, mentioned in the justice's transcript, wQve, prima facie, evidence of the satisfaction of the judgment ; and refused to permit plaintiff to explain the returns afore- said by other testimony." 3. " The district court permitted proof that one of said defendants was security, and that the principal was insol- vent, as set forth in the bill of exceptions." The first error assigned is predicated upon the fact, th;it Abernethy the consiable, who took the wagon of the de- fendant as a levy on the execution to satisfy the plaintin, was a competent witness to make the estate of William Cassaday amenable in law, for the payment of the claim or debt of the plaintiff, on the judgment upon which this proceeding was instituted. Was he a disinterested witness, and on this score comjjetent to testify for the purpose proposed ? We think he was not. It ajjpears by the record of the justice before whom the judgment was ob- tained, that he was the constable into whose hands the execution was put ; that he proceeded in the performance of his official duty so far as to make a levy on a wagon, the property of David Cassaday, one of the defendants in the execution. Here his official proceedings, so far as the proper disposal of the property levied on is concerned, ceases ; except that by his returns it appears that the property seized on execution was apprrised at $50, which sum was amply sufficient to satisfy the execution. It is true, that after the lapse of nearly a year, another execution was put into his hands, and by him returned, " Not satisfied ; " and that one year after this last re- turn, a third execution was issued to his successor in office and returned, " No })roperty found." The returns do not show what dis])osal was made by him of the pro- 212 SUPREME COURT CASES, Lucas V. Cassaday. perty of the defendant, which by his return was legally in his hands, to be appropriated to the satisfaction of the judgment of the plaintiff, for whom by virtue of law he acted officially, and to whom he stood accountable for the faithful performance of his duty as constable. Rev. Stat., 330, §§ 2, 4; Laws of 1844, 44. The constable was bound to proceed in accordance with law, without delay or neglect of duty, to make the money on the execution to satisfy the debt of the plaintiff, by levy on the goods and chattels of the defendant, and having made the levj^, he becomes answerable to the plaintiff for the avails, unless he be released by the plaintiff's own act, or can show that he has disposed of it in due course of law. The facts in this case clearly show that the property taken in execu- tion by him was sufficient to pay the full amount of the judgment, and that he, by failing to account for the pro- perty levied, became liable to the plaintiff in execution, on his official bond. In 4 Mass., 402, Chief Justice Parsons says : " When goods sufficient to satisfy the judgment are levied or seized on 2iji.fa. Che debtor is discharged, even if the sheriil waste the goods or misapply the money arising from the sale, or does not return his exe- cution. For, by lawful seizure, the debtor has lost his property in the goods." For the like doctrine, see Minot's Digest, 320. And as to the effect of a levy by execution, see G Ohio, 490, and Laws of 1844, p. 46, § 4. A uniform concuiTciii-e of decisions by the courts of our country will be found to establish fully the doctrine, that after levy by execution, made on goods and chattels, sufficient to satisfy the judgment, the defendant in the execution is divested of his right to the property, and the officer making the levy becomes liable to the plaintiff for the debt, if he fail to perform his duty according to the requirements of the law, or be not released by the plaintiff. It matters not, in this case, whether this levy was made under the ap- praisement law or not. In either state of the case, the constable has clearly failed to show, by any legal means whatever, how he has disposed of the levy. To allow the OTTUMWA, JUNE, 1849. 213 Lucas V. Cassaday. constable, two years after making bis return officially, to come in as a witness fur tbe pbiintiff in execution, and by bis evidence contradict, or explain away bis return, to pro- cure tbe payment of tbe indebtedness out of tbe effects of tbe defendant's estate, would be subversive of tbe plainest principles of justice and in violation of tbe law of evidence. Persons bolding places of public and legal trust sbould be beld to a fiiitbful performance of tbeir duty. We consider tbat tbe district court, b}^ excluding tbe witness, as offered in tbe case at bar, ruled correctly. As to tbe second assignment of error, we bave alread}' said enougli on tbe question involved in tbe first, to dispose of tbis. Tbe ruling of tbe court below, deciding tbat tbe return of tbe constable was, prima fade, evidence of the satisfaction of tbe judgment, so far as tbe defendant is concerned, we tbink, bas been sbown to be correct in law. Tbe same principles of law are involved in tbe questions presented by botb assignments, and tbey depend uj)on tbe same facts. Tbe constable baving seized tbe defendant's property by virtue of tbe execution, and returned tbe levy so made as sufficient to pay tbe plaintiff's judgment, tbe defendant tbereby lost bis property in tbe wagon levied on, and clearly be was, prima facie, discbarged from tbe debt. Tbe court decided correctly in refusing to allow tbe plaintiff, by tbe testimony tbat was offered, to explain away tbe legal effect of bis official return to the execution. The third assignment of error complains of the ruling of the district court, in permitting the defendant to show by evidence that the defendant, whose estate the plaintiff in this proceeding seeks to charge with the payment of this debt, was not the principal, but merely tbe security in the original contract ; and that the principal therein died insolvent after the levy was made. This being a proceeding under the intestate laws, we cannot discover anything erroneous in this ruling of the court below. Tbe action of the court, in this matter, was, we think, in accordance Avith the provisions of tlie law, 214 SUPREME COURT CASES, Bradley v. McCall. defining tlie jurisdictional power of probate courts in this state. In this jiroceeding, the defendant might avail himself of any defence proper in law or equity. The evidence admitted by the court, we think, might tend to establish a release from the claim of indebtedness, as set up by the plaintiff. But the bill of exceptions expressly shows that this cause was submitted to the court, without the intervention of a jury by agreement ; and the judge there states that the decision and judgment rendered by the district court was founded on the transcript there referred to, and of record in the case, without reference to anything else. We can see nothing under this assign- ment to warrant us in reversing the judgment. Judgment affirmed. Jas, H. Comles, for plaintiffs in error. A. Hall J for defendant. BRADLEY et al. v. McCALL. If the plaintiff in an attachment suit before a justice of the peace recovers a judgment for less than five dollars, it does not follow that he is liable on the attachment bond. In an attachment suit before a justice, the df^mand cannot be leas than five dollars, but the judgment may. Error to Wapello District Court. Opinion by Kinney, J. This was an action brought in the district court of Wapello county, upon an attachment bond filed before a justice of the peace. Judgment was rendered upon the bond, and the case having been trans- ferred to this court, the record presents the following facts: It appears, that in the original proceeding before the justice of the I'cace, an attachment was sued out upon the OTTUMWA, JUNE, 1849. 215 Bradley v. McCall. affidavit of Bradley, alleging that, after all just set-offs, McCall was indebted to him more than $5. Judgment upon the trial was rendered in favor of the plaintiff for only 70 cents ; and the suit in the district court, it seems, was instituted by McCall against Bradley and Mason, (the latter being surety upon the attachment bond,) upon the ground that as the plaintiff in the attachment did not recover 6-5, he was entitled to damages for the suing out of the attachment. This appears to be the only question in the case entitled to consideration. The 1st section of the attachment law, page 339, provides that " creditors whose demands are not more than fifty nor less than five dollars, may sue theii* debtors by attachment before a justice of the peace in certain cases." The 2d section provides, that the creditor shall execute to the debtor a bond with sufficient security in a penalty ot $100, conditioned to pay the debtor all damages and costs which he may sustain by reason of the issuing of such attachment, if the creditor fail to recover juck/ment thereon, and if such judgment be recovered, that such creditor will pay the debtor all the moneys which shall be recovered by him, from any property levied upon and sold under such attachment, over and above the amount of such judgment and interests and costs thereon. This is the condition of the bond which the statute requires of the creditor for the safety and protection of the debtor ; and upon a breach of which an action will accrue thereon to the defendant. The bond, it will be observed, is suscep- tible of two divisions or conditions, and upon a breach of either, the creditor will become liable to the debtor. 1. If the creditor does not obtain judgment ; and 2. If he fail to pay over the surplus money arising from the sale of the property attached, after paying his own demand and costs. Unless there is a breach in one of these conditions, we are at a loss to know how the creditor would become liable to the debtor upon the bond. The suit then having been brought upon the bond, and the debtor havins; recovered as'ainst the creditor and his 216 SUPREME COURT CASES, Bradley v. McCall. surety, we will examine the bill of exceptions and record to ascertain tlie basis of that recovery. Upon the trial in the district court, the bond was intro- duced and read to the jury as the foundation of the action. The plaintiff below then introduced the transcript of the justice of the peace, which showed the recovery by the defendant of 70 cents. These items of evidence were ob- jected to by the defendant, but permitted to go to the jury by the court, and enabled the plaintiff to recover. The court charged the jury that the defendant Bradley, having failed to recover $5 on his attachment, the de- fendants were liable on their bond if any damages were proved ; for $5, being the least sum for which a justice has jurisdiction by attachment, a judgment for a less sum is void for the want of jurisdiction in the justice. And therefore, as no judgment was ever obtained on the attachment, they should inquire what daipages, if any, were sustained by the plaintiff by reason of his corn being held by the writ. The court in this charge to the jury, appears to have predicated the instructions in favor of the plaintiff's right of recovery, entirely upon the fact that the judgment recovered before the justice "was under $5. This instruc- tion we think erroneous. It will be observed, that the statute requires that the plaintiff's demand shall be at least $5. Can this, by any reasonable construction or legal intendment, refer to the judgment ? This becomes an important inquiry, as the plaintiff recovered uiDon the supposed breach of the bond. As the justice had no power to render the judgment, it was there- fore void, and placed the plaintiff in the attachment under the same liabilities to the defendant as if he had failed to obtain any judgment at all. By the express provision of the statute, the justice obtains jurisdiction when the demand of the creditor properly sworn to, &C., is $5. Having obtained jurisdiction, he can render judgment, although this demand may be reduced by an investigation and trial. The object of the statute, undoubtedly, is to OTTUMWA, JUNE, 1849. 217 Richards v. Marshman. guard and protect debtors from a violent proceeding by attachment, when the demand is of a less smn than $5. But the creditor, when he makes his affidavit, and brings himself within the purview of the statute, does all that is required of him ; and if for the want of testimony to sustain his demand, or if it be reduced by unexpected set-offs to a sum less than is sworn to, we think the jus- tice, having legally obtained jurisdiction, may by reason of his general powers render a judgment, although that judgment should fall under the amount sworn to be due. As the statute has reference only to the demand, and not to the judgment, and as under the law defining the powers and duties of justices of the peace, they have power to render judgments in any sum not exceeding $50, we cannot escape the conclusion that, in cases of attach- ment, justices of the peace may render judgment for a less sum than |5. As the instructions upon this point to the jury were erroneous, and probably formed the basis of the recovery, it will be unnecessary to notice the other questions pre- sented by the bill of exceptions and assignment of errors. Judgment reversed. J. H. Cowles, for plaintiffs in error. S, W, Summers, for defendant. mCHAKDS V. MAESHMAK. Only that portion of a contract is void which promises more interest than is authorized by the interest law of 1839. On a note made under that law to draw thirty-three per cent, interest, twenty per cent, interest can be enforced. The payee of a note, which he indorsed to the holder, is a competent witness to prove usurious interest. Vol. it. 15 218 SUPREME COURT CASES, Richards v. Marshmaa. Error to Van Buren District Court, Opinion hy Greene, J. Assumpsit on four promissory notes made by the defendant and others, payable to Silas Tolman, and by him indorsed and delivered to Seth Richards. The notes are dated September 27, 1842, pay- able on or before the 28th day of June, 1843 ; and drawn to bear interest at the rate of 20 per cent, per annum after due till paid. Pleas, non assumpsit and usury. On the trial, there was evidence given tending to sustain the plea of- usury, and to show that Osse Tolman, one of the makers of the notes, borrowed money of the plaintiff and gave him surety notes drawing interest at the rate of 33 per cent. ; and that the notes sued on were given for the principal and illegal interest of those notes, for the purpose of renewing them. The court instructed the jury, that if one promises to pay another a sum of money including a greater rate of interest than is authorized by law, such promise would be void, and the case would stand as if no such promise had been made by the parties ; but the law would then imply a promise to repay the consideration with six per cent, interest. The jury accordingly found for the plaintiff, on such implied promise. This instruction of the court is one of the errors urged. The interest act of 1839, p. 276, was in force at the time the notes in question were given, and it authorized an agreement in writing to pay interest at a higher rate than 6 per cent. ; but providing that, in no event, such rate of interest shall exceed the value of $20 for the forbear- ance of $100 for one year. The penalty provided is, that the usurious part of any such contract, and 25 per cent, interest thereon, shall be forfeited, to be re- covered before any court of competent jurisdiction, and to be paid into the treasur}'^ of the county wherein the same may be i)rosecuted. It is not pi'etended that the present proceeding is a pro- OTTUMWA, JUNE, 1849. 219 Richards r. Marshman. icution to enforce a penalty for usury ; but it is insisted, lat the court b^low properly charged a usurious contract ) be void in all its bearings. Such a decision would be 3rrect in England, and in most of our own states, where le enactments on that subject declare such contracts surious and void. But the validity of this contract must e tested by the usury act of our state, which was in force t the time it was made. It does not pronounce such con- racts void, but merely forbids a greater rate of interest lian 20 per cent., and provides that any excess, &c., shall e forfeited on proper prosecution. We regard it as the lear intention of the law to leave all such contracts in Lil] force between the parties, except the usurious por- ion. The intention of the contracting parties should then e enforced so far as lawfully and clearly traceable to he full extent of its legal limitation. There can be no uestion but that there was an intention to pay at least per cent, interest; and as the law authorized that rate f interest by agreement, we see no sound reason why the ontract should not be enforced to that extent ; and we re therefore of the ojDinion that the court below erred in eciding that the entire contract is void, merely because ne portion of it is forbidden by law ; although that por- ion is obviously divisible, and, under our statute, has no mpairing effect upon the rest. The legislative intention to preserve the validity of all ucli contracts, except the usurious portion of the interest, 5 fully evinced by the language of the act, by the forfeiture .esignated, and hj the manner the prevailing legislation 5 avoided, which declares such contracts void. It may well be assumed that contracts which are malum prohibitum should not have vitality imparted to them by ourts of justice, and that such tribunals should not re- ognize a remedy which the law does not confer ; but we annot perceive that this familiar rule is in any respect eparted from by our decision in this case. We follow /Imt we believe to be the clear intention of the statute^ 11 re^'ognizing the contract as valid, so far as its legal 220 SUPREME COURT CASES, Richards v. Marshman. features and the legal intention of tlie parties can be plainly traced. In doing this, we believe no violence is done to the doctrine held in The Bank of the U. S. v. Owens, 2 Peters, 527, and the cases therein cited. In Ohio, under a statute more prohibitory than the one under which the notes in question were given, it has been decided that usury avoids the contract only to the extent of the illegal interest. McLean v. Lafayette Bank, 3 McLean, 587. In Lafayette Ben. So. v. Lewis, 7 Ohio, Part L, 80, it was held that when a contract is for more than 6 per cent., the principal may be recovered with 6 per cent, interest, which is the full extent authorized by statute. 2. It is also claimed as error, that the court overruled the objection of the plaintiff below, to the introduction of Silas Tolman, the payee and indorser of the notes, as a witness to prove the defence of usury. As the cjuestion is not raised, we will not advert to the immateriality of the testimony to prove usm*y, which was fully established by the face of the notes sued, but briefly state our decision as to the competency of the witness. The governing rule is, that a witness is competent, un- less he is infamous or interested in the event of the suit. To this general rule policy has interposed a few excep- tions, such as excluding the testimony of husband and wife for or against the other, and of admitting a man robbed, though interested, to testify against others for the robbery, and the like. These exceptions are admitted to preserve domestic harmony, and public security. But how can these motives, or even the appeal to commercial conven- ience, be applicable to the exclusion of a witness whose name ap'iears upon negotiable paper? Were we to follow the current of authority emanating from many of our older states, as cited by counsel for the plaintiff in error, we could not do otherwise than decide that the indorser is not a competent witness to invalidate a note. But more recent decisions, following OTTUMWA, JUNE, 1849. 221 Ricluirds ?•. Marshman. a more enliglitened and progressive policy, have held the contrary doctrine. The first adjudged cases in American courts appear to have been predicated upon Walton v. Shelley^ 1 T. K, 296, made a.d. 1786. This seems to be the first reported case in England upon this question, and is founded upon a maxim of the civil law, that " nemo allegaris suam tur- pitudinem est audiendus^'' and from this sprang the sup- posed policy, that no party who has by his signature given credit to a negotiable instrument should be permitted to defeat it by his testimony. That inconvenience and even fraud may sometimes result from such a practice must be conceded; but it should be as readily conceded that even greater inconvenience and fraud may be practised on parties and strangers, by getting to fraudulent j)aper the names of all who might be witnesses to the transaction. No rule of evidence or form of law should extend such a shield to the guilty. Under this view of public policy, and the prevailing rule of competency, the case of Walton V. Shelley y^2(S, overruled in Jordainex. Laskbrook, 7 T. R., 601 ; and the payer, who was also indorser of the bill, was determined a competent witness to prove that the bill was drawn in London instead of Hamburgh, as it pur- ported, and was tb.erefore void for want of a stamp. And tliis has ever since prevailed as the recognized rule in England. Rich v. Topjmig, Peak K P. K, 224; 1 Esp. N. P. C, 176; Brandy. Acker man^ 5 Esp., 119; Kent y. Lowden, 1 Camp., 177; Peake Ev.,4th Ed., 255; 2 Stark. Ev., 298. And in 1 Phil. Ev., 5 Am. Ed., 43, the author, in commenting on the case of Walton v. Shelley^ remarks, that it appears to have been the first decision in support of such a rule, and that the contrary is now fully estab- lished. The promptness with which the English courts have overruled their erroneous decision in that case is truly commendable ; but we are constrained to observe, that exalted American courts have not pursued the same enlight- ened policy. Having once recognized as lasv the unsound doctrine of Walton v. Shelley^ they appear r,o adhere to it 222 SUPREME COURT CASES, Richards v. Marshman. witli remarkable pertinacity. This has especially charac- terized the decisions in Massachnsetts on that qno?tion. As early as 1807, Walton y. Shelley was recognized in the case of Warner v. Merry, 3 Mass., 27, and it was then decided, that a party to a negotiable security shall not be permitted to testify that at the time lie became a party it was void. And so the court continued to decide in Parker V. Lovejoy^ 3 Mass., 565; Churchill \. Sutter, 4 ib., 156; Manning \. Wheatland, 10 ib., 502; Butler \. D amen, 15 ib., 223 • Packard Y. Richardson, 17 ib., 122. But in the case oi Knight Y. Putnam, 3 Pick., 184, the court questions the correctness of the decision in the case of Manning V. WJieatland. The opinion remarks, that " the autho- rity of that case has been questioned, and the objection to the doctrine as there laid down is entitled to great consideration. The witness was held to be incompetent, not because he was interested, but on the ground of legal policy, which will not permit one who has transferred a negotiable security as valid to invalidate it by his testi- monj^" And, indeed, the principle recognized in Fox v. Whitneij, 16 Mass., 118, is by no means consistent with former decisions in that state. It was held that a promisor on the note as surety, the paper not having been nego- tiated, was a competent witness to prove that it was given for a usurious consideration'. Afterward, in Van Shaack v. Stafford, 12 Pick., 565, the maker of the note, being released, was held to be a competent person to prove usury in an action against the payee. And still, in the case of Thayer v. Crossman^ 1 Metcalf, 416, the old doctrine of excluding a party to a note was again confirmed, but under greater limits and qualifications than had been previously recognized. Shaw, C. J., in an able opinion and general review of authorities, considers the rule settled for that commonwealth, by a course of decisions too direct and uniform to be drawn in question, but concedes the necessity of curtailing its extent and npplication. Though the rule of Walt07i v. Shelley • has been repeatedly ctverruled by the court which adopted I OTTUMWA, JUNE, 1849. 223 Richards v. Marshman. it, and its error triumphantly exposed, still it is recognized in Massacliusetts as in force, but limited in its application to a negotiable security indorsed and put in circulation in the usual course of business, and as not applying to notes overdue or otherwise dishonored. And this rule appears to obtain to an extent more or less limited in Pennsylvania. Bondw. Cochrmi, 4 S. & B,., 397 ; Griffith V. lliford, 1 Rawle, 196 ; in Maine, Dreriny v. Lawlitel, 4 Greenl., 191 ; Chandler v. Morton, 5 ib., 374 ; and also by tlie federal supreme court, Bk. of the Metropolis v. Jones, 8 Pet., 12. But in New York, though the rule was adopted in 1802, by a majority of the court in Winton v. Saidler, 3 John. Cas., 185, it was soon after overruled, and has never since been recognized in that state. Stafford \. Rice, 5 Cow., 23. It is in that case remarked, yj^er ^^c«^a^ c^^na??^, that Winton v. Saidler is not law, not having been acted upon for many years, and having been repeatedly over- ruled; and that under the later decisions, a witness, whose name appears upon negotiable paper, may be received to prove usury in its inception. See also Bank of Uttica V. Hillard, 5 Cow., 153 ; Williams v. Walbridye, 3 Wend., 415. The rule of Walton v. Shelley has also been rejected — in Connecticut, Toivnsend v. Bush, 1 Conn., 260; also in Vermont, Nichols v. Holyate, 2 Aik., 140 ; in New Jersey, Freeman v, Butlin, 2 Harrison, 1 92 ; in Maryland, Riny^ yold V. Tyson, 3 Har. & Johns. , 1 72 ; Hunt v. Edward^ 4 ?<$»., 283 ; in Virginia, Taylor v. Beck, 3 Rand., 316; Cald- well \. Mc Courtney, 2 Grat., 187; in Kentucky, Gorham V. Carroll, 3 Litt., 221 ; in N. Carolina, Guy v. Hall, Mur- phy, 151 ; in S. Carolina, Knight v. Paccard, 3 McC, 71 ; in Georgia, Slack v. Moss, Dudley, 161 ; in Tenn., Stump V. Napier, 2 Yerg., 35 ; and also in Alabama, Manning v. Manning, 8 Ala., 138. In tliis case, Orniond, J., observes, that the (h)ctrine first asserted in Walton v. Shelley, has been h)ng exj)h)ded in Enghmd, and never was recognized by that court ; but th;it tlic opposite o[)inion had been 224 SUPREME COURT CASES, Scott V. Sweet. asserted in numerous cases. 1 Stew., 199 ; 9 Porter, 225, ib., 406 ; 3 Ala., 93; 5 ib., 385. We must conclude, then, that in the case at bar, aside from the immaterial character of the evidence, the court below very properly admitted the witness Tolman to testify as to the original invalidity of the notes; but as the jury were improperly instructed as to the effect of usury upon the contract, the judgment must be reversed. Judofment reversed. ^£5' J. H. Cowles, for plaintiff in error. Wright and Knapp, for defendant. SCOTT V. SWEET et aU To establish a plea of want of consideration, parole evidence is admissible, to show that a promissory note was given for a patent right to make fan- ning mills, and that fanning mills made after the model of the right were worthless. Error to Jefferson District Court. Opinion by Williams, C. J. This is an action of as- sumpsit, on a promissory note dated October 18, 1845, drawn by C. R. Hitchcock and Job C. Sweet in favor of William Scott, by which they, or either of them, promised to pay said Scott or order the sum of $48, for value received, against the 1st day of March, 1846. Suit was brought before a justice of the peace. The plain- tiff sued for the use of Theodore D. Porter. Judgment was obtained by the plaintiff. An appeal was taken to the district court, the cause tried there, and a verdict for the plaintiff and judgment thereon for $53.96, with costs. The defendants put in their pleas, that the consideration for which the note had been given had OTTUMWA, JUNE, 1849. 225 Scott V. Sweet. wholly failed ; that the note was without consideration when made and delivered to Scott ; and also payment in full. Issue was joined between the parties. The question for adjudication here is presented by the bill of exceptions. To maintain the issue on their part, the defendants offered to prove by parole testimony, that the note was given in consideration of a patent right to make fanning mills, which they purchased from plaintiff, and that the right proved to be worthless because the mills would not work beneficially. To the introduction of this evidence the counsel for the plaintiff objected, on the ground that the conveyance of the right could only be in writing, which must be produced, or its absence accounted for, and that it could not be proved by parole testimony. The court sustained the objection and refused to let the evidence offered go to the jmy. The defendants then offered a witness to prove a want of consideration for the note on which this suit was brought, whose evidence would go to establish the following facts to maintain their part of the issue, viz. : " That the said note was given for a supposed right to make fanning mills, and that the said Scott warranted the fanning mills, made after the manner of the right which he sold, to do good business, and also that the said fanning mills did not do good business and were of no account." All of which parole testimony the court refused to admit, on the ground that the written transfer of the patent right must be produced, or its absence accounted for, by the defendants. The defendants excepted to these rulings of the court, all of which appear in due form of record in the case. The only question for adjudication in this court, is as to the decision of the district court in refusing to admit the parole evidence offered by the defendants as above stated. Upon the issue between the parties, we think it was both proper and material that the evidence as offered should have been suffered to go to the jury. In this pro- <:eeding, notwithstanding there might have been a transfer in writing of the patent right, it does not necessarily 226 SUPREME COURT CASES, Scott V. Sweet. follow that, in an action on the note, parole evidence ol matters arising collaterally out of that transaction may not be material in the adjustment of the rights of the parties, and properly admissible in the case. Although a written document, which by authority of law or private compact is constituted the authentic and proper instru- ment of evidence by a general and inflexible rule, yet there are cases where the mere existence of written evi- dence never excludes independent parole evidence to prove the same fact. 1 Starkie on Ev., p. 303. It is given as a principle, to be observed in relation to the exclusion of parole evidence of a contract, that in order to exclude it, proof must be made that the contract was in writing. 1 Starkie on Ev., 505. In 4 Esp., C. 13, referred to in Starkie above cited, in a note, it was held that "where A gave a warrant of attorney to secm-e a joint debt to B and C, and B received the whole, in an action by C to recover his moiety, A may be called to prove the payment without the production of the warrant of attorney." On the same page of Starkie, 1st vol., the case of Wood v. Morris, 12 East., p. 237, where it was decided that, " after the plaintiff in ejectment had given parole testimony in evidence of the tenancy, the evidence was held to be sufficient, although it appeared by the cross examination of his witness that an agreement relative to the land in question had been produced upon a former trial between the same parties, and had been seen in the hands of the phiintiff's attorney on the same morning." But the defendants, in the case at bar, offered to prove that the mill, for the right to which they gave the note upon which this suit was brought, was warranted by the ])laintiff to do good work, and that the same was worthless for business, and the court rejected the evidence. If the contract was shown to be in writing, we think it was com- 2)etent for the defendants to show by parole evidence that the plaintiff, independently of the written transfer, had warranted the mill to work well, and then to follow- that showing by proof that it was worthless. We are of OTTUMWA, JUNE, 1849. 227 Walsh V. Murphy. the opinion that, as the case is presented, the district court erred in rejecting the parole evidence offered by the defendants upon the trial below. Judgment reversed, Charles Negus ^ for plaintiff in error. Slayle and Achison, for defendant. WALSH V. MURPHY. An attorney to whom a claim was intrusted for collection, and who employed another attorney to commence suit upon it, is not an incompetent witness. An attorney may be a witness for his client. Error to Van Buren District Court. Opinion hj Kinney, J. This was an action of assumpsit, commenced by attachment, upon an account of about $500. The precipie for the writ was filed by Hall and Cowgill, attorneys for plaintiff. The pleadings in the case were all conducted by A. Hall, Esq. The evidence, as contained in the bill of exceptions, shows that the plaintiff introduced as a witness James Cowgill, whose name appeared on the precipie as attorney. He stated that he was an attorney at law of the state of Mis- souri; that about the 1st of September, 1847, the account was placed in his hands for collection; that he had visited the defendant, and subsequently placed the claim in the hands of Mr Hall ; that he expected to be paid for his services in looking up the claim, (fee. Upon the request of counsel for defendant, the com't ruled out the testimony of Cowgill, upon the ground that he was incompetent, as there was 'a. prima facie liability to the plaintiffs for neglect. Whereupon the plaintiffs submitted to a nonsuit. Two questions are raised in the argument of the case. 228 SUPREME COURT CASES, Walsh V. Murphy. 1. Was the witness interested in such a manner as would render him incompetent to testify ? 2. Can an attorney, in any case, be a witness for his client ? Upon the first point, from a careful examination of the matters sworn to by the witness, we cannot think that his interest was of such a character as should have excluded his testimony from the jury. The rigid rule, as formerly obtained in regard to the incompetency of witnesses, ap- pears to be relaxing to some extent, and yielding to the more reasonable one of permitting witnesses who were once re- garded as incompetent to testify, leaving their credibility with the jury. Indeed, some of the law writers of the day are discussing with seriousness the propriety of dis- solving all distinction between competency and incom- petency, and referring the testimony of witnesses, with all the interest and objections that surround it, to the consideration of the jury, for them to place such reliance upon as it deserves. While there may be apparently many good reasons in support of this position, it cannot be expected that the courts, expounding the law as it is, will be influenced by a doctrine so diametrically opposed to the well-established land marks of the law. But in this case, we are asked by the counsel for the defendant in error to lay down a rule which will prevent attorneys from testifying in behalf of their clients, and in support of this, we are referred to a recent decision made in Pennsylvania, in which Judge Lewis delivers an opinion which is marked for its elegance, if not for its soundness. However high in the estimation of that learned judge the members of the profession may stand, we think he pays them but a poor compliment by intimating that their professional zeal for the success of their clients would compel them to swerve from a rigid observance of truth and veracity. But it is said that they should be excluded for their own protection. A character above reproach, an integrity of purpose that cannot be questioned, which we are happy to say has distinguished the profession in all OTTUMWA, JUNE, 1849. 229 Walsh V. Murphy. ages, is the only protection that any person requires to pre- vent suspicion or unjust imputation. While it sometimes becomes a matter of necessity for an attorney to testify in a case in which he is concerned, to prove the execution of papers, or, as in this case, the correctness of an account, an attorney would certainly be negligent of his duty, were he to remain silent, and jiermit his client's interest to suffer, allow a just claim to be defeated, and the ends of justice subverted by reason of his professional position. While we say this, we are also free in saying that no respectable member of the profession, who properly appre- ciates his position in society, and at the bar, will so far forget the dignity of his profession, and his relation to the court, as to become the willing and pliant tool in the hands of his client in the capacity of witness. In this case the court erred by excluding the testimony of Cowgill upon the ground of his interest, and although the quest icu of the competency of attorneys to testify in behalf of their clients is not properly raised in the bill of exceptions, yet as the practice is not uniform in the state upon that sub- ject, and as we have been requested by counsel to pass upon the question, we have thought proper to do so. The judgment of the court below is reversed, and a trial de novo awarded. Judgment reversed. A. and J. C. Hall, for plaintiffs in error. Wright and Knapp, for defendant. 230 SUPREME COURT CASES, Bonney v. Van Buren Co. BONNEY V. VAN BUREN CO. Counties are liable for costs in criminal cases in which nolle prosequi are entered, or in which indictments are quashed, or demurrers to them are sustained. Error to Van Buren District Court. Opinion bj Greene, J. J. H. Boiiney submitted his account to '*' the board of commissioners of the county of Van Buren," for services rendered as sheriff and clerk of the district court of that county in criminal cases, in which nolle prosequi were entered, and in which indict- ments were quashed or demurrers to them were sustained. The items in the account were admitted to be correct, but the board of commissioners decided that the county was not legally liable for the services, and therefore refused to audit and allow the claim. Upon an agreed case in the district court this decision was affirmed. It is contended that the court erred in thus deciding that the county is not liable for costs of the j)rosecution in cases disposed of by nolle prosequi, by motion to quash, or by demurrer to indictments. The various enactments against adjudging costs against counties in criminal pro- ceedings apply exclusively to cases of acquittal. Rev. Stat., p. 214, provides, that " the county commissioners may allow the sheriff and clerk of the district court any sum not exceeding $30 per annum, for services in criminal cases where the party is acquitted." In ^he United States V. Switzer, Morris, 302, it was decided that the entering of a nolle q^rosequi is not an acquittal, and that a judg- ment in such case may be rendered against the county for costs. As none of the services in the case at bar appear to have been rendered in acquittal cases, we con- sider the county liable for them. AVe cannot feel justi- fied in extending to the statute a construction broader than its letter imi)orts ; nor can we believe it to have been the intention of the legislature to deprive county OTTUMWA, JUNE, 1849. 231 Bradley v. Kennedy. officers of just and adequate compensation for services required of them by law, when no such intention is explicitly set forth in the statute. Judgment reversed. A, Hall, for plaintiff in error. H, M. Shelby J for defendant. BRADLEY v. KENNEDY. Where the declaration in slander contains several counts, two of which charge the speaking of words at different times, and a general verdict ifl rendered, the jndtrment will not be reversed. It is the exclusive province of a jury to decide the facts in a case. It is not error to exclude immaterial testimony. To sustain the plea of justification to an action of slander, the testimony of more than one witness, or of one witness, and strong corroborating cir- cumstances, are necessary. Error to Wapello District Court. Opinion by Wili iams, C. J. James Kennedy brought his action for slanderous words against Thomas W. Bradley, in the district court of Wapello county. The declaration of the plaintiff sets forth, in the proper form of law, words alleged therein to have been spoken by the defendant of and concerning the plaintiff", imputing to him, and charging him with, the crime of perjury. There are several counts contained in the declaration. The words laid in each are substantially the same, and they are clearly actionable. The defendant filed his plea of not guilty and justifica- tion. The cause was tried by a jury, and a verdict and judgment rendered in favor of the plaintiff for |100 damages. The first error assigned is, that " the district court erred in overruling the motion to airest the judgment, on 232 SUPREME COURT CASES, Bradley v. Kennedy. the verdict of tlie jury." In support of this motion, it was alleged, in tlie court below, that the declaration con- tains several counts, two of which charge the speaking of different words at different times, whereas the verdict of the jury is general. It is true that the declaration is made up of several counts, and that the words, in two of the counts, are not precisely the same, and are laid to have been spoken at different times. But, substantially, the words laid in them charge the same crime upon the plaintiff below, being that of wilful and corrupt perjury, in such a manner as to render them in law actionable. The fact that they are laid as having been spoken at different times furnishes no ground for an available objection. The words charge the same crime, and the finding of the jury was, doubt- less, based upon the conclusion that the evidence adduced satisfactorily proved the allegations contained in all the counts. The counts do not show a charge of more than one crime. Besides, the pleas of the defendant, being the general issue and justification specially pleaded, apply to all the counts in the declaration alike. We find no legal objection to the verdict on this score. The court, therefore, did not err in overruling the motion to arrest the judgment. The second error assigned is, that the " district court erred in this, that the judge instructed the jmy as to the facts of the case, and not as to the law alone." Tliis assignment has not been pressed upon the atten- tion of this court with much apparent confidence by the counsel for the plaintiff in error ; but, nevertheless, being presented for adjudication, it devolves upon us to examine whether it be well founded. Our legislature, by positive and prohibitory enactment, have confined the judges of om' district courts to instruc- tion in the law alone, and made it the exclusive province of the jury, unaided and unadvised by the court, to decide as to the facts in question, adduced in evidence on the trial. After careful and full examination of the bill of OTTUMWA, JUNE, 1849. 233 Bradley v. Kennedy. exceptions in this case, we think that the judge who tried the cause below has not overstepped the limits prescribed by the legislature in the instructions given. The third assignment of error is, that " the judge of the district court erred in excluding the testimony of witnesses in respect to the declarations of the plaintiff below, that lie was prosecuting the suit to break up defendant, who felt too large, and he was determined to bring him down, and that his father-in-law had furnished him (the plaintiff) with $500 to carry on the suit." The question here presented is this, viz.: — Was this evi- dence material in this case, upon the issue joined between the parties ? We are unable to see its materiality. The defendant, after pleading the general issue, pleaded spe- cially justification. He first put the plaintiff to the proof of the words, as alleged in the declaration to have been spoken ; and then, in the event of their being proved, for a defence to the plaintiffs action, by his special plea, stood forth before the court and jury, and justified the speaking of the words, by affirming and contending that they were true. We cannot see what material bearing the evidence oftered could have on the case so presented ; as the case stood upon the issue thus joined, and at this point ia the proceeding, the defendant was exclusively put upon the proof of his plea of justification. Had he merely put in the plea of the general issue, denying only the speaking of the words, then the motive of the plaintiff in bringing the suit might with more pro- priety have been assailed. But the evidence offered, fairly construed, could establish no more than that the plaintiff was not without the means of prosecuting his suit, which had been already instituted ; and that the defendant had assumed high ground in charging the crime of perjury upon him, and that the effect of the j)roceeding at law, then pending between them, would be to break him up. We think that the judge of the dis- trict court did not err in rejecting the testimony so offered as irrelevant. Vol. IL 16 234 SUPREME COURT CASES Bradley v. Kennedy. The fourtli and last error assigned is, that there was error in the instructions of the judge, " that the testimony of more than one witness was necessary to sustain the defendant's plea of justification." The judge instructed the jury that the defendant was bound to make out his plea of justification affirmatively in such a manner as to sustain the charge of perjury, which he, by his plea, made against the plaintiff. To do this legally, his instruction to the jury required him to prove by more than one witness, or by one witness and corroborating circumstances, which would, to the satisfac- tion of the jury, give the preponderance of truth to the evi- dence of that witness, against the evidence which had been given upon oath by the plaintiff on the trial or trials, wherein he had accused him of swearing falsely, as alleged in the declaration of plaintiff ; that thus the equilibrium produced by the oath of one man against that of another, in relation to the same subject matter, would be destroyed by the weight of reasonable and truthful cu'cumstances, and the question at issue be legally decided. This is the sub- stance of the instruction given by the judge on this point. But a brief examination of this question is necessary to show that the instruction given by the judge to the jury on this point was in accordance with sound law. The grave and heinous crime of perjury is charged by the defendant against the plaintiff. On a prosecution for that crime, by the laws of our country the testimony of more than one witness, or one witness and strong corroborating circum- stantial evidence, are required to substantiate the charge and procure a conviction. The accusation made by the defendant against the jjlaintiff, as laid in the declaration, and which he insists by his plea is true, is wilful and cor- rupt perjury in a criminal and legal sense — which, if true, and established legally, would subject the plaintiff to the severe penalty of a crime, and render him infamous. The charge made by defendant was perjury in its legal sense. By the soundest dictates of reason and law then, as the charge made by him against the plaintiff involved crimi- I OTTUMWA, JUKE, 1849. 235 Pierson v. Baird. nal guilt under the law of our land, upon the issues joined in this case, he was justly and legally required by the court below to make good his accusation by such evidence as is required legally to establish a conviction of the offence charged. To establish and inculcate any other doc- trine than this, would release the defendant from the re- sponsibility he assumed by speaking the words as laid in the declaration, and leave the plaintiff without redress commensm-ate to the wrong and injury sustained by him. Whilst the accusation made against him would be perjury in its full, legal, and infamous sense, the defendant would excuse himself by evidence which could not establish the commission of any such crime. In a case like this, where the defendant undertakes to justify, it is just, as well as legal, that he should be required to make good his plea affirmatively, fully and legally. We find no error in the proceedings of the court below. Judgment affirmed. J. H. Cowles, for plaintiff in error. Wright and Knapp, for defendant. PIEESON V. BAIRD. By an act approved January 15, 1849, all instructions from district Judges to petit juries are to be given in writing. That law took effect, by publication in newspapers, on 31st January, 1849. Courts siiould know ex officio at what time lavs take effect. Error to Van Buren District Court. Opinion bij Kinney, J. The only question raised in this case by the bill of exception is, Did the court err by giving oral instructions to the jury? The cause was sub- mitted to the jury upon the oral instructions of the coart. 236 SUPREME COURT CASES, Pierson v. Baird. on the 21st day of February, 1849. It appears irom the bill of exceptions that the court at tlie time was not aware that a law had been recently passed requiring instructions to petit juries to be in writing, and prohibit- ing oral instructions, and proceeded to give the instruc- tions in the usual manner, to which the counsel for the plaintiff in error excepted. The 27th section of the 4th Art. of the constitution of Iowa provides, " that no law of the general assembly of a public nature shall take effect until the same shall be published and circulated in the several counties by authority. If the general assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the state." Upon the 15th day of January, 1849, the legislature passed a law requiring the judges of the district courts to instruct the petit juries in writing. The act provides, that it shall take effect from and after its publication in the Capital Reporter and Iowa Repicblican. From a note appended to the act, it appears that it was published in one of these papers on the 24th of January, and in the other on the 31st. This law was of a public nature. The general assembly, deeming it of immediate importance, had the right under the constitution to order it to be published in newspapers in the state, and when so published the constitution pro- vides that it shall take effect. Courts are bound ex officio to take judicial notice of the publication, in this way, of all laws of a public nature. The time fixed by the con- stitution for them to take effect is by publication, and when so published, they become the laws of the land. This unrestricted provision of the constitution, if resorted to by the general assembly, may and often will produce injustice and oppression, which it is not within the power of the courts to remedy or prevent ; and hence such laws as would be injurious in their tendency, by reason of their not being circulated and known, ought not to take effect in this constitutional manner. Nevertheless the o:eneral I OTTUMWA, JUXE, 1849. 237 Roerers v. Alexander. assembly have the right to give their acts vitality and force by newspaper publications, however much to be de- precated, or oppressive in their consequences. As the constitution has fixed the time for these laws to take effect, it is not within the power of the courts to prescribe the time which, in theii- opinion, would be sufficient for these newspapers to be circulated, and through them the laws generally known. In the case before us, the act had been published about one month, and although the court was not aware of its passage, it erred, and the case must be reversed. Judgment reversed. A, Hall, for plaintiff in error. Wright and Knapp, for defendant. ROGERS V. ALEXANDER. Where two motions are pending at the same time — one by defendant, to affirm for the want of notice, and the other by plaintiff, for leave to withdraw the writ of error — the supreme court will, at discretion, give preference to that motion which the nature and justice of the case may require. Error to Van Buren District Court. Opinion by Greene, J. This case comes before us on two motions — one to affirm the judgment for want of notice of suing out the writ of error, and the other by plaintiff in error, for leave to withdraw the writ and papers without prejudice. The question arises. To which of these motions shall we give precedence? This is a matter not regulated by rule or practice, and is consequently confined to the discretion of the court, to be determined by the circumstances of each particular case. 238 SUPREME COURT CASES, Jefferson Co. v. Savory, That clause of the statute requu-ing fifteen clays' notice, and in default thereof, an affirmance of the judgment un- less good cause be shown for the failure, is an imperative rule upon the court, which cannot "always conform to the rights of parties. The stringent, inflexible character of the rule must necessarily work a hardship in some in- stances, unless counteracted in justifiable cases by an in- terposing motion, such as an application to withdraw the writ without prejudice. This application, however, can only receive priority over a motion to affirm for want of notice, in peculiar cases in which the rights of a party might be injuriously affected by its refusal. And in this light we recognize the present case. The appealing party appears to have acted in good faith, without motive to re- tard the operations of justice, and at least with grounds of defence upon which a question may properly be raised. We therefore feel it our duty to grant the motion to with- draw the writ and papers in this case, without prejudice. Motion granted. A, Hall, for plaintiff in error, J^ M, Shelby, for defendant. JEFFERSON CO. v. SAVORY. When a note is so written that it is impossible to tell whether it is dat«d Jan. or Jun., parole evidence may be admitted to determine the true date; and the fact should be referred to the jury for determination. Error to Jefferson District Court. Opinion by Williams, C. J. The plaintiff's action is brought on a promissory note calling for $68.95, drawn by the defendants here, and Samuel Shuffleton, who died before the commencement of this suit. The declaration OTTUMWA, JUNE, 1849. 239 Jeffersoa Co. v. Savory. of the plaintiff contains a special count on tlie note, arid therein alleges that the defendants, with the said Shnffle- ton, "on the ninth day of June, 1841, &c., made their promissory note in writing," &c. To this special count the common counts in assumpsit are added, in the first of which an exact coj)y of the note is given. Issue having been joined by the parties, at the March term of the dis- trict court the cause was tried, and judgment of nonsuit entered against the plaintiff. The plaintiff in the court below complains here, that the judge of that court improperly refused to allow him to read in evidence, on the trial before the jury, a note signed by the defendants and said Shuffileton, to sustain his action. This is the only error assigned. The question adjudicated by the court below, and pre- sented here by the bill of exceptions, arises from an alle- gation of variance between the instrument of writing set forth in the plaintiff's declaration and the note offered in evidence to the jury to maintain the plaintiff's action. The facts contained in the bill of exceptions are in substance as follows: "The note oflered as evidence to the jury on part of the plantiff was objected to by the de- fendants, on the ground of variance. The date of the note declared on was June 9, 1841, and the note offered as evidence was identical with that described in the declara- tion in all material points, except the name of the month, and the judge, in the language of the bill of exceptions, certifies that the " date of the note produced was so wi-itten that it would read equally well either " Jan.'"' or " Jun.^^'' and from the face of the note the court could not say which it was." The court then permitted the plaintiff to show by parole evidence when the note was in fact made, and the plaintift" gave evidence that it was made in January. The plaintiff further proposed to prove that the word was June^ and that it was Avritten by Shuffleton in his usual manner of writing the word June, but the court refused to hear the evidence. The plaintiff then insisted that the note should be 240 SUPREME COURT CASES, Jefferson Co. v. Savory. allowed to go to the jury for adjudication as to the question of the date, which was refused by the court, until evidence should be adduced to the court, proving* that it was a June note. The note was rejected by the court, and the plaintiff nonsuited. The bill of exceptions presents rather a peculiar state of facts. It is distinctly stated, that by inspection of the note ofiered in evidence, it was not in the i:)ower of the court to decide what the name of the month, as written, was ; whether it should read June or January. For the ascertainment of this matter resort was had to parole evidence by the permission of the court. Having done so, and having heard some testimony on the subject with a view to establish in a satisfactory manner to the mind of the court the true date of the note, we are at a loss to un- derstand why the plaintiff was not suffered to proceed, as offered by him, to give evidence of the date as written in the note. The same rule which would warrant the hear- ing of a part of his evidence would admit it all ; and as the proposition was to prove that the word written in the note was " June,'''' we think the establishment of that fact in the mind of the court would have been quite likely to dispel the doubt existing there, and might have settled the question. But we are of \\\q, opinion that the court erred in refusing to let the note go to the jury for the purpose of ascertaining the date. By the bill of exceptions, it appears clearly that, from the face of the note offered in evidence, the court was unable to decide whether the word written for the name of the month should be taken for June or January, but might be taken for either with equal propriety. In such a case, the party objecting to the evidence, and asking the interposition of the rule of law which requires the proof offered to correspond with the allegations in the declaration, and who claimed the benefit of the objection, should have made out the existence of that variance to the satisfaction of the court, from an examination of the instrument itself. Unlegs the vai'iance OTTUMWA, JUNE, 1849. 241 Marshall v. Marshall. was manifest and satisfactorily apparent to the mind of the court, the note should have been suifered to go to the jury, there to pass through that ordeal instituted in our country for the adjustment of controverted facts upon the issues made up by the parties. This we think is the safer and better rule in cases like this. Where the court cannot decide, the instrument should be allowed to go in evidence to the jury, submit- ting this question of fact, with all such other facts as maj arise in the cause, to their verdict, under the instructior of the court as to the law. Judgment reversed. C. Negus J for plaintiff in error. E, DoroYiy for defendants. MARSHALL tt al. v. MARSHALL. In proceedings in chancery against non-residents, a brief statement of the object and prayer of the petition must be published for six weeks successively, in some newspaper printed in the county where the petition or bill is tiled, &c. The publication is, in contemplation of law, a service of process upon the defendants, and unless made as required by statute, no service is obtained, and the proceedings of the court are coram non judice, and void. Error to Van Buren District Court. Opinion by Kinney, J. This was a proceeding under the statute, by the defendant in error, for partition against the plaintiff and others, and minor heirs, who were non-residents. Publication was ordered by the court as against the non-residents. A guardian ad litem was appointed for the infant heirs, and the case luvving been heard, and it 242 SUPREME COURT CASES, Marshall v. Marshall. appearing to tlie court that publication had been made acording to law, it was ordered that partition be made of the premises, which was done by the commissioners appointed for that purpose, and their proceedings duly confirmed. The case is brought to this court upon writ of error, and a reversal of the order of partition is asked upon the ground that the publication was not according to law. By the first section of an act relating to petitions and proceedings in chancery, Iowa Laws, 1844, p. 49, it is provided, that in proceedings against non-residents, a brief statement of the object and prayer of the petition shall be published for six weeks successively, in some newspaper printed in the county where the petition or bill is filed, &c. By an inspection of the record in this case, the publication as sworn to by the publisher only appears to have been continued for four weeks, and this is the error complained of by the plaintiff. This error is a fatal one, and the decree of the court must be reversed. If two weeks of the publication less than required by law could be dispensed with, the entire publication could, upon the same principle, be avoided ; and therefore the non- resident defendants be proceeded against, their interests affected, and their rights concluded, without ever having had a day in court. This publication is in contemplation of law a service of process upon the defendants, and unless made as required by the statute, no service is obtained, and the proceedings of the court under it as regards them are coram nonjudicc^ and void. But it is urged here by counsel, tluit the plaintilf in error was served with personal service, and cannot com})lain of the irregularity of the pi'oceedings ; that they are only void as against the non-resident defendants, if void at all. This position is incorrect and unsound. It appears from the report of the commissioners of partition that a por- tion of the land was allotted to James Marshall, the plain- tiff in error, and as this is the foundation of his title, it OTTUMWA, JUNE, 1849. 243 Gordon v. Mounts. becomes a matter of vital importance to him that the proceediDgs in partition, from which he derives his title^ should have been according to law. The plaintifT is not excluded from raising the objection presented in the as- signment of errors. Judgment reversed. *o' J. H, Cowles, for plaintiffs in error. Wright and Knappy for defendant. » ♦»• < - GORDON V. MOUNTS. The statute of limitations approved February 15, 1843, cannot be pleaded in bar to an action of debt within six years after the act took effect. Error to Polk District Court. Opinion hy Greene, J. This was an action of debt on a writing obligatory under seal. In the court below the defendant pleaded the statute of limitations, to which the plaintiff demurred, and the court overruled the demurrer. This ruling of the court is assigned as error, and is the only question raised in the case. Under former decisions of this court, which we see no sufficient reasou now to disturb, the statute of limitations cannot be pleaded in bar to such an action, commenced within six years after the act took effect. The net does not operate retrospectively, nor run conjointly with the repealed act of 1839. This suit was commenced on the 17th day of January, 1849, and the act for the limitation of actions did not take effect till the 4th day of July, 1843 ; consequently it could not be pleaded in an action of debt previous to the 4th of July, 1849. 244 SUPREME COURT CARES, Hinch V. Weatherford. The court below having erred in overruling the de- murrer, the judgment is reversed and a trial de novo awarded. Judgment reversed. W, H. Seevers, for plaintiff in error. J, C. Hallf for defendant. HINCH et al. v. WEATHERFOED. Statute of limitations approved February 15, 1843, cannot be pleaded in bar to any action of debt, assumpsit, &c., commenced before July 4, 1849. Ekror to Mahaska District Court. Opinion by Greene, J. This suit was commenced be- fore a justice of the peace on the 28th of December, 1848, on a promissory note dated January 5, 1841, payable one day after date. The defendant pleaded the statute of limitations, and obtained judgment ; and thereupon the plaintiff took an appeal to the district court. On the trial, the court charged the jury, that by the terms of the note, the cause of action accrued more than six years before the commencement of the suit ; and that, as it came within the statute of limitations, the plaintiffs could not recover. This instruction under former decisions of this com-t was erroneous. It has repeatedly been decided by this court, that the Iowa statute of limitations, approved February 15, 1843, cannot be successfully pleaded as a bar to any action of debt, assumpsit, &c., commenced within six years after the act took effect. As the act was not in force, and did not commence running as a limitation of suits till the 4th day of July, 1843, such an action could only be brought OTTUMWA, JUNE, 1849. 245 Kimble v. Riggin. within its purview after the 4th day of July, 1849. But in this case, the suit was commenced on the 28th of December, 1848, and consequently the limitation was im- properly applied. Judgment reversed. W. n, Seevers, for plaintiffs in error. J", C, Hallf for defendant. » • * • < KIMBLE V. RIGGHT. Where, on an appeal to the district court from the judgment of a justice ol the peace, it appeared that no judgment was entered by the justice on the verdict of the jury, held that the district court had no jurisdiction of the cause ; and that even the appearance of the parties in the supposed appeal in the district court could not confer jurisdiction over the invalid pro- ceedings of the justice. Error to Van Buren District Court. Opinion by Greene, J. This case was commenced before a justice of the peace, and a verdict found for the plaintiff. Upon this verdict no judgment was rendered by the justice. The case was taken to the district court by appeal, and the plaintiff there obtained judgment. It is urged as an objection, that as there was no judg- ment rendered by the justice, there was nothing to appeal from — nothing over which the district court could exercise jurisdiction. The statute provides for an appea*! from the judgment or decision of a justice. Without such judgment or decision, it is manifest that there is no ground for appeal, nothing to appeal from, and that the appellate court could exercise no jurisdiction. The case not having been taken to the district court from the decision of a jus- tice, nor in any manner provided by law, that court could 246 SUPREME COURT CASES, Ellis V. Mosier. not properly entertain the proceedings, nor enter judg- ment thereon. In such a case, even the appearance of the parties in the supposed appeal could not confer juris- diction over the invalid proceedings of the justice. The case would have been different had the parties appeared originally in the district court, and by consent proceeded to trial ; but as the appearance, trial, and judgment were predicated upon an appeal unauthorized by law, we can but regard the proceedings as a nullity. But it is urged, that as the statute authorizes a trial de novo on an appeal, the difficulty as to jurisdiction, occasioned by a want of judgment in the inferior com't, is removed. We are un- able to see how this fact can confer jurisdiction. Though a trial de novo is awarded in the district court, that trial is of an appellate character. The powers of that court over the parties, and the subject matter, emanate exclu- sively from the appeal. The very rules of pleading, of evidence, and of practice, the same limitation of jurisdic- tion, follow the appeal from the inferior to the higher tri- bunal, and must regulate and govern the trial de novo. There having been no foundation for the appeal, and hence a want of jurisdiction in the district court, the judgment in this case must be reversed. Judgment reversed. Wright and Knapp, for plaintiff in error. A. Holly for defendant. ELLIS V. MOSIER. A contract by which E agrees to purcliase for M, at the United State§ land office, a portion of public land, upon which M has made valuable im- provements, is not repugnant to the act of Congress passed in 1830, to prfr i OTTUMWA, JUNE, 1849. 247 Ellis V. Mosier. vent fraudulent practices at the public sales of the lands of the United States. Where an agreement is not calculated to prejudice the price and sale of the public lands, it is not affected by the law of 1830. Agreements in relation to improvements and claims on the public lands we recognized by the laws, courts and customs of Iowa. In Equitt. Appeal feom Mahaska District Couet. Opinion ly Greeite, J. Enoch Mosier filed his bill in chancery for the specific performance of a contract made for improvements on public land. It appears that Mosier had a claim and valuable improvements on half a sec- tion of land belonging to the United States, and made a bar o-a in with Julian Ellis, bv which hu sold him one half thereof, and as the land on division could not be pur- chased in the name of each of the parties at the publif- sales, it was agreed that Ellis should purchase the land and take the certificate of purchase in his own name, and thereupon deed to the complainant his half of the land. It also appears, that the complainant furnished his share of the means for the purchase in the claim , which was valued by the parties at $400 ; that the defendant offered to pay to the complainant the purchase money for the half of the claim he had purchased, but the complainant intrusted the keeping of it to the defendant, under his promise to act as his agent in applying it to the purchase of the land in question. A written agreement under seal was accord- ingly entered into between the parties, on the 22d of June, 1846, which witnesseth : " That Enoch Mosier here- by agrees to permit Julian Ellis to enter at the coming land sales his entire claim, situated in Mahaska county, Iowa territory, consisting of one hundred and sixty acres of prairie, and one quarter of timber, on the following conditions, which Julian Ellis binds himself by these presents, in the penalty of $1000 to perform: Julian Ellis to furnish $400 to enter the claim all in his own name, and then so soon as he can obtain a certificate from the land office, to deed to said Mosier the north half 248 SUPREME COURT CASES, Ellis V. Mosier. of the quarter section of prairie, and eighty acres of the timber, consisting of that part of the quarter section which the said Mosier shall select," &c. A particular descrip- tion of the land is set forth in the hill, and also an aver- ment that the complainant selected the west half of the quarter section of timber referred to in the agreement, and gave written notice of such selection to the defend- ant. The defendant, it appears, entered the land accord- ingly, obtained for it a certificate, and subsequently a patent from the President of the United States ; and that both parties entered upon their respective portions of the land, and each continued in possession by the consent and acquiescence of the other ; that the complainant has greatly enhanced the value of his portion of the land by valuable improvements ; and that he has often applied to the defendant for a performance specifically of his agree- ment, by conveying the land in question, but that he had whollv neo'lected and refused so to do. The defendant demurred to the bill, which was over- ruled; having failed to plead or answer as required by rule of court, he was considered in default. By the decree, it was adjudged that the respondent make and deliver to the complamant a good and sufiicient warranty deed of the real estate set forth in the bill, within thirty days from the adjournment of that court, and that in default thereof, the real estate in question should be vested in the com- plainant by virtue of the decree, which should be treated as a conveyance. It is now urged, that the court should have sustained the demurrer to the bill on the ground that the agreement between the complainant and respondent was founded upon an unlawful consideration, and was therefore void. To sliov,^ the illegal character of the contract, the respond- ent refers to the 4th and 5th sections of an act of Con- gress, '' for the relief of the purchasers of the public lands, and for the suppression of fraudulent practices at the public sales of the lands of the United States," approved March 31, 1830. The 4th section referred to provides a OTTUMWA, JUNE, 1849. 249 Ellis V. Hosier. penalty against any person who " shall, before or at the time of the public sale of any of the lands of the United States, bargain, contract or agree with any other person, that the last named person shall not bid upon or pm-chase the land so offered for sale, or any parcel thereof; or shall, by intimidation, combination or unfair management, hinder or prevent, or attempt to hinder or prevent, any person Irom bidding upon or purchasing any tract of land so offered for sale." The 5th section provides, that all agree- ments before or at the iniblic sale, " to purchase such land, to i^ay or give to such purchasers for such land a sum of money, or other article of property, over and above the price at which the land may or shall be bid off by such pm'chasers," shall be null and void. The question arises. Does the contract between the parties in this case come within the object and meaning of the law above referred to ? The prevailing object of the law clearly is to prevent agreement and combinations prejudicial to the price and sale of the public lands ; and to promote that object, the 4th section renders it a penal offence to make any bargain or combination to prevent bidding upon government lands offered at public sales ; and the 5th section declares all contracts and asrreements void which tend to preclude such bids. Is there any thing in the arrangement and contract between these parties which can implicate them as violating these regu- lations of Congress, or render the contract they entered into void? We think not. It was a legitimate trans- action, recognized by the prevailing customs of the West, sanctioned by the laws of our state and by the decisions of our courts. Hosier had a claim and valuable improvements on the public lands, and for one half of the claim Ellis engaged to pay him $200. Hosier intrusted the $200 with Ellis, as agent, to purchase for him his remaining portion of the land at the public sales, with the understanding that Ellis should deed to Hosier his portion of the pur- chase, upon its being perfected. Here was no agreement, Vol. IL 17 :^50 SUPREME COURT CASES, Ellis V. Hosier. as contemplated by the 5tli section referred to, by wliicli tlie purchaser of the land at the sales was to receive " a Slim of money or other article of property over and above the price " bid by the purchaser. We can only recognize it as a contract by which Ellis agreed to pay Mosier for improvements, and as a consideration there- for, give him $200, which he was to pay by purchasing for him at the public sales the quarter section of land in controversy. So far from discouraging or j)rejudicing the sale of the public domain, it was through- out a transaction by which the value was enhanced and the sale secured. The improvements not only gave value to and promoted the sale of the land for the government, but also enhanced the value and would neces- sarily promote the sale of the adjacent lands. It cannot then be successfully urged, that the improvements upon, or the contract in relation to, the land described in com- plainant's bill, either abated the price or retarded the sale of government lands ; nor can we see why the contract should be regarded as a nullity under the sections of the act we have cited. We regard it as an agreement entirely removed from the objectionable conditions which are condemned by that law. The principle that improverrients and a claim on public lands constitute a valid consideration, in bar- gains relating to and founded upon them, has been re- peatedly recognized by our territorial supreme court. Morris' Iowa R., Hill v. Smith et at., 70 ; Freeman v, Holliclay^ 80; Stannard v. McCarly^ 120; Starr v. Wilson^ 438. We are unable to see any feature of equity or good con- science in the objections raised by the respondent to the decree of the district com-t. Indeed, all the circumstances of the case, the fiduciary capacity which resiDondent assumed, and in which he acted, the manner in which he recognized the occupancy, possession and improvements of the complainant subsequent to the purchase of the real estate, present a forcible appeal in contemplation of equity OTTUMWA, JUNE, 1849. 251 Games v. Manning, jurisprudence in support of the justice and correctness uf tire decree. Decree affirmed. J, C. Hall and IF. H, Seevers, for appellant. Wright and Knapp, for appellee. GAMES V. MANNING. Where a promissory note for a sum certain is payable in leather at the tan- yard of the maker, a demand of the leather is not necessary. In a suit against the maker of a note, or the acceptor of a bill payable at a specified time and place, it is not necessary to aver or prove a demand of payment, and the same rule is ajiplicable to notes payable in specific pro- perty. In order to discharge himself from a note payable in specific articles, it ia necessary for the maker to show that he had paid, tendered, or set apart the property as payment of tlie note. If a debtor make a tender of the specific articles he has promised, and pro- perly designated and set them apart at the time and place stipulated, and the creditor is not there to receive, or refuses to accept the property, the debt is thereby discharged, and the property passes to the creditor. A demand, after a property note becomes due, is a waiver of any previous breach, and gives the maker a second opportunity to pay in property. Error to Van Buren District Court. Opinion by Greene, J. Assumpsit on a promissory note made by G. W. Games for $300 payable in leather, on or before January 1, 1844, at his tan-yard. A memo- randum on the back of the note stated the price of sole and harness leather at 28 cents per pound, and upper leather at 50 cents per pound, and the agreement of Games to pay the note in leather at those prices, one third of each kind, one half by the 1 st of September, and one half by the 20th of September, 1844, and that Man- ning agreed to take the leather as above specified. On 252 SUPREME COURT CASES, Games v. Manning. the trial, it appeared in evidence tliat James "Weir, to whose order the note was made payable, had assigned it to Manning after it became due, and no evidence was given of a previous demand, or tender, or readiness to pay ; that the arrangement stipulated in the memorandum on the note was entered into by the parties to this suit, after the assignment, and that, after the last instalment mentioned therein fell due, Manning called for the leather at the tannery, and though the defendant below had, and offered enough upper and harness leather to pay the note, the plaintiff required a due proportion of sole leather, of which the defendant had none, and failing to furnish the same, the plaintiff refused to receive any leather on the note. Thereupon the defendant asked the court to instruct the juiy that the plaintiff could not recover without proving a demand of the leather at the place of delivery before the suit was brought ; and that it was not necessary for the defendant to set apart, designate, and keep the leather as a payment, in order to discharge himself from the obliga- tion. But the court refused to give this instruction as asked, and in effect charged the jury that no demand was necessary; that, as the stipulations of the note and memo- randum required no precedent act on the part of the plain- tiff, it was the duty of the defendant to pay, or tender, or set apart, the property of the requisite kinds and quan- tities at the time and place specified. The court also instructed the jury that the subsequent demand was a waiver of any previous breach, and if the property had been delivered, or tendered, or set apart in i3ayment upon such demand, or if it had been done in a reasonable time thereafter, and notice thereof given to the plaintiff, it would have been a sufficient performance, in default of (v^hicli the contract would be again broken. Verdict and judgment for the plaintiff for the balance due on the note. To these proceedings various objections have been urged, which may be comprised under three heads. 1. In order to enable the plaintiff to recover on the note, was a previous demand of the property necessary ? Agree- OTTUMWA, JUNE, 1849. 253 Games v. Manning. able to the prevailing current of American decisions, it is not necessary to prove a demand of payment in an action on a promissory note, payable at a particular place, in order to enable the phiintiff to recover against the maker, though it would be otherwise when the recovery is sought against the indorser. llWheat., 171; 17 Mass., 389; 15 Pick., 212; 4 Conn. ,465; 3KH.,33; 8 Co wen, 271; 3 Wend., 13; 6Ala.,:01,865; 8Port.,346; 1 How. Miss., 230; 3 Pike, 389; 1 Scam., 466, 578; 13 Peters, 136; 8 Vt., 191. The decisions upon this point, it is true, refer mainly to notes payable in money, and not in sj^ecific articles. But we think no good reason can be given why the rule should not be as applicable to property notes as it is to those which are payable in money, especially in this state, where, by statute, an instrument of writing or a contract in the form of a promissory note, payable in articles of personal property, is rendered negotiable, and is treated as a pro- missory note in all particulars affecting the rights and liabilities of the party thereto. Kev. Stat., 451, 555. In Vermont, where notes payable in specific articles occuj}y nearly the same commercial relation that they do in this state, {Denison v. Tyso)i, 17 Vt., 459,) no demand is necessary before bringing suit on a note payable in specific property on a day specified. Elkins v. Parkhurst, 17 Vt., 105. The court say in that case that a special demand has never been held necessary when a day certain is fixed for the payment of the specific articles. And in Fleming v. Potter, 7 Watts Pa., 380, no demand was held to be necessary. The obvious interpretation of the promise made by the - note in this case is, that the specific kinds and quantity of leather should be ready for the plaintiff at the place and on the day specified. The promise is without condi- tion ; it contemplates no preliminary act or precedent demand, but undertakes an absolute performance by the maker, whether the holder of the note is present at the time and place to receive the specific articles or not. The absence of the plaintiff could not exonerate the defendant's 254 SUPREME COURT CASES, Games v. Manning. liability to have the property ready for him, according to the stipulations of the note. If the defendant had shown that he was ready to deliver the specific articles, accord- ingf to the tenor and effect of the note, hut did not desii;"- nate and set them apart, it would then have been incum- bent on the plaintiff to prove a subsequent demand, or a refusal by tl: e defendant to make the payment. Conn v. Gano, 1 Oliio, 211, Ham., 486. But we do not deem it necessary to enlarge upon this point, for the uniform course of American decisions shows, that when the suit is against the maker of a note, or the acceptor of a bill of exchange made payable at a specified time and place, it is not necessary, in order to maintain the action, to aver, or prove on the trial, that a demand of payment was made ; and this doctrine we consider applicable to notes payable in specific articles. 2. The next question to be considered is, Was it neces- sary for the defendant, in order to discharge himself from his obligation, to show that he had paid, or tendered, or set apart the leather as payment of the note ? By the in- struction to the jury, the court below decided this question in the affirmative, and this, it is claimed, was erroneous. The authorities do not appear to run in the same current upon this point, but the better opinion appears to be that if the debtor makes a tender of the specific articles he has promised, and properly designate and set them apart, at the time and place stipulated, and the creditor is not there to receive, or refuses to accept the property, the debt is thereby discharged, and the right of pro]3erty in the articles thus designated and set apart, passes to the creditor. Sling erland v. Morse, 8 John., 474, 478 ; Sheldon v. Skinner, 4 Wend., 528; Lamh v. Lathrop, 13 ib., 95, 97; Garrard Y. Zachariak, 1 Stewart's Ala., 272; Thaxton v. Edwards, ib., 624; Smith y. Loomis, 7 Conn., 110; Robin- son V. Batshelder, 4 N. H., 46 ; Gilman v. Moore, 14 Vt., 457 ; 2 Kent's Com., 507 ; Zim v. Rowley, 4 Barr., 169. Johnson V. Baird, 3 Blackf., 153, 182, was an action on a promissor}' note payable in hats at a certain time and OTTUMWA, JUNE, 1849. 255 Games v. Manninir. place. The defence set np was, tliat at the time and place the note became due the defendant was ready with the hats, to pay and discharge the note, but that no person at- tended to receive them; that he had always been and still was ready to deliver them at the place appointed, if the I^laintiff would attend to receive them. This was held to be a o-ood defence to the action. But the case was decided upon the sufficiency of a plea of readiness to perform, in which the uncore prist was fully averred. In connection with that decision the court say, " that when the defend- ant elects to avail himself of such a defence, and retains the articles in his possession, he is bound at his own peril and risk to keep them safely and deliver them to the creditor on his demand ; and should he neglect or refuse 60 to do, he is liable in an action of trover or conversion;" and they further say, that by his plea he acknowledges his duty to so keep and deliver the articles, and makes the whole a matter of record by which he is for ever bound. This reasoning of the court clearly shows that something more than a mere readiness to pay must be proved in order to discharge the defendant from all liability on the contract. In order to keep those particular articles safe for the creditor, they must have been set apart or designated as the property of the creditor, and not remain indiscrim- inately commingled with like articles retained by the debtor or owned by others. And in the same opinion the court admit that the defence would be clearly unavailable, if it merely set up " that the debtor was ready at the time and place of payment with the articles, but that no one was there to receive them." 3 Blackf., 188. So in Dor- man V. Elder, ib., 490, where it was pleaded in bar to an action of covenant, for the non-delivery of hogs worth a certain sum, by a specified time, that the hogs were set apart at the time stipulated, and that the plaintiff failed to attend, it was held that the plea should have stated the number of hogs so set apart, and also that they then were left at the phice for the plaintiff, or that they were and al\\';;vs had been readv to be delivered. In these decisions 256 SUPREME COURT CASES; Games v. Manning. we can see nothing to militate against the propriety of the instructions in the present case. They certainly require somethiug more to bar such actions than a mere readiness to deliver the j^roperty at the time and place appointed. The property should, at least, be set apart and designated for the benefit of the creditor. We conclude, then, that the court below, in charging the jury, did not require more proof than would have been necessarj^ to discharge the defendant from his obligation. 3. So far as the concluding instruction of the court is concerned, we think the plaintiff in error has even slighter grounds for objection. The subsequent demand being a waiver of any previous breach, the defendant had a second opportunity to deliver, or tender, or set apart the specific articles, in payment of the note upon such demand. To this instruction we can see no legal objection, nothing in it that could result in hardship or inconvenience to the defendant. But the court went still further in his behalf, and instructed the jury, that if the property had been set apart as payment in a reasonable time after such demand, and notice thereof had been given to the plaintiff, it would have been a sufficient performance. The plaintiff in error at least has no right to complain of this branch of the charge. It was as favorable to him as it well could be, in affording him a reasonable time after the subsequent demand to discharge the note in leather. His failure to deliver the leather on such demand gave the holder of the note an immediate right to his action ; and it may well be questioned, whether he was under obligations to delay it even a reasonable time for such a notice. Judgment affirmed, Wright and Knapp^ for plaintiff in error. J, C. Hall, for defendant. OTTUMWA, JUNE, 1849. 25- Crooksliank v. Mallory. CROOKS HANK et al. v. MALLORY. A party cannot avail himself of his own objections to work done for him and his refusal to accept, as a reason for not paying for it ; nor can he give in evidence his own acts and declarations, in order to show that another party has failed in his contract to him. AVhere a dwelling frame is defectively erected, but still is of substantial value to the defendant, for the purpose intended, tlie plaintiff would be entitled to a compensation, to be ascertained by deducting from the contract price so much as the frame was worth, less than it would have been if completed according to agreement. It was not necessary for the defendants to accept the dwelling in order to justify a recovery against them. A mere right to a reduction of plaintiff's demand, in consequence of defects in the work for which it was cliarged, is not a demand which can be brought in as a set-off against plaintiff's demand. A set-off must be predicated upon an independent demand. Erkor to Van Buren District Court. Opinion by Greene, J. An action of assumpsit by Samuel Mallory against Jesse and James J. Crooksliank, in which the phaintiiF recovered a verdict and judgment of 25 cents. The suit was for work under a written contract to erect a frame for a dwelling, and also a frame for a kitchen at- tached to the same, under a separate contract. It appeared on the trial that the defendants had finished off the kitchen part, and were living in it, and liad left the main building unfinished, alleging that it was not framed in a workmanlike manner, nor within the time stipulated by the contract. 1. The defendants gave evidence tending to prove that they had paid most of the contract price for the dwelling frame, before it was finished; that on the day it was raised and the defects appeared, they objected to them, and to those parts that were incomplete ; that they then, and have ever since refused to pay the balance due on the contract, in consequence of these defects ; and that they had always refused to accept the dwelling frame from the 258 SUPUEME COURT CASES, Crookshank v. Mallory. plaintiff. This evidence was excepted to, and was ruled out by the court. To this ruling objections are urged, but we think the court acted correctly. The defendants could not avail themselves of their own objections and refusals as a justification for not paying a debt. A party cannot give evidence of his own acts and declarations in order to show that another party has failed in his contract to him. 2. It is objected that the court charged the jury, that if the dwelling frame was defective in some particulars, and not entirely completed within the time, and in the manner specified, but was nevertheless of real substantial value to the defendants for the purpose intended, the plaintiff would be entitled to a compensation, to be ascertained by deducting from the contract price so much as it was worth, less than it would have been if completed according to agreement. There is nothing pointed out to us in this in- struction that is not perfectly consistent with the contract, or that infringes upon any principle of law. The doctrine involved in this instruction was fully recognized by this court in Davis v. Fish, 1 G. Greene, 406. We there say, that " the rule is settled beyond question-, that if a job of work is of some use and value to the employer or vendee, though improperly done, or not within the stipulated time, still the workman or vendor is entitled to recover as much as the work is reasonably worth ; making such allowance as the circumstances may require." Under this rule, the above charge to the ''jury was obviously cor- rect. 3. The court then instructed the jury that, to enable the plaintiff to recover, it was not necessary that defendants should have taken the dwelling frame off his hands. This instruction is also unexceptionable. Such an improve- ment attaches to the realty. It is a part of the land, and passes to the owner with his possession of the land, with- out the formality of a delivery and acceptance. 4. The defendants gave evidence, tending to show that they had sustained damages by plaintiff's defective per- 1 OTTUMWxV, JUNE, 1849. 259 Crookshank v. Mallory. formance of the contract ; and they then asked the court to direct the jury to treat such damages, if they found any, as so much set-off; and if, in striking a bahxnce, any thing should be due the defendants, they should return a Ycrdict in their favor for such a balance. But the court refused to give such directioa to the jury. To this ruling the defendants excepted, and now urged the same as error. We think the court decided correctl3\ It is clear that ■where a mechanic sues for his labor, and a defence is made by setting up damages for defective work, such damages can only be used as a defence against the plaintiff's claim, and not as a ground of action in the nature of set-off; by which the defendant may recover over against him. The statute provides that a defendant may set-off " any de- mand " he may have against the plaintiff. Eev. Stat., p. 318. The defendants in this case set up no demand against that of the plaintiff, but sought rather to destroy his claim by showing that the work was not properly done. A set-off must be predicated upon an independent demand, which a defendant has against the plaintiff. But in this case, the defendants attempted to set-off a claim Avhich resulted from and depended upon the demand of the plaintiff. Had the defendants recovered a verdict, it would not have been the result of their demand a^-ainst the plaintiff, but it would have been by the avoidance or destruction of the plaintiffs demand against them. If the plaintiff had no demand, the defendants had nothing against which they could place their set-off; and if the plaintiff's demand was legal, then the defendant's claim would necessarily fail, because it depended upon the fact that it was not a legal demand. True, if the plaintiff had failed in the performance of his contract, the defendants may have had a claim against him for damages ; but a recovery could only be had in a cross action. The defendants had their election to sue for damages, or to recoupe their damages, when sued for the price of their work. We find in (Jliitty on Con., 65G, that " a set-off means a 2G0 SUPREME COURT CASES, Depew V. Davis. cross claim^ for whicli an action miglit be maintained by the defendant against the plaintiff, and is very different from a mere right to a reduction of his demand or claim to defeat it, on account of some matter connected there- with." This explanation from Chitty shows that the court below properly refused to direct the jury as requested by defendants. Judgment affirmed. H. M. Shelby and J. H. Cowles^ for plaintiffs in error. Wright and Ktiapp, for defendant. _ — t » » » t DEPEW V. DAVIS. Affidavits may be admitted in support of a motion to recommit an award to arl)itrators, and if no objection was raised to the affidavit in the district court, none will be entertained in the supreme court. An award may be recommitted under the statute, where a legal and suffi- cient reason is given. A reason that will justify an arrest of judgment or a new trial, will justify a recommitment. An award should not be rejected, unless a want of jurisdiction is apparent in the arbitration. An award may be recommitted on the ground of newly discovered evidence. Error to Jefferson District Court. Opinion by Greene, J. In 1841, A. J. Davis and W. Depew entered into an agreement by which Davis was to furnish goods at Fairfield, and Depew was to sell them there, for one fourth of the profits. Under this agree- ment the parties carried on a large business for three years, and then found it impossible to settle the accounts between them. They finally agreed to have their accounts settled by referring them to arbitrators, whose award should be filed for judgment under the statute. The arbitrators found a balance in favor of Depew of $311.60. The award was 1 OTTUMWA, JUNE, 1849. 261 Depew V. Davis. filed in the district court, where Depew moved for judg- ment, and Davis moved to recommit. The two motions were heard together before Hon. C. Mason in 1845. The court ordered that the award be recommitted to the same arbitrators. Depew now claims that Davis failed to make out a proper case for recommitment. The motion for recom- mitment sets forth the following reasons: 1. It was contrary to the evidence. 2. Several items were not considered, through inadvertance of arbitrators. 3. The arbitrators rejected several items in violation of a written as>Teement. 4. Mistakes were made in calculations. 5. Davis has, since the 'submission, discovered new and material testimony to sustain and prove one item of his account, amounting to more than $3600, which item was rejected by the arbitrators; and which evidence he did not know of at the time of the trial. The facts stated in the motion were supported by affidavits of Davis, of G. W. Howe, and others. It is now objected, that ex parte affidavits should not have been admitted in support of the motion to recommit. It appears that these affidavits were admitted in the court below, without exception. To these affidavits we see no legal objection. If inadmissible, the objection should have been raised at the time they were presented; it cannot now be entertained. As no objection was made, we must conclude that there was no error in admitting and acting upon the affidavits. By these affidavits, new and important evidence is dis- closed, which would be likely to produce an entirely dif- ferent result in the award of the arbitrators. One of the witnesses testifies that he has discovered, from an exami- nation of the books, that a part, if not the whole, of $3600, in goods, were furnished to Depew by Davis, and which were not included in the award submitted. The affidavits show that other testimony could be produced by Davis which would tend to prove the same fact, and the other exceptions made in the motion to recommit. The record 262 SUPREME COURT CASES, Depew V. Davia. does not purport to give all the evidence upon whicli the court below acted in ordering the award to be recommitted. If, then, we should not consider the afifldavits before us sufficient to justify the action of the court below, we could not presume that the court had not some additional and sufficient reason for recommittino- the award. The statute provides, that " the award may be accepted or rejected by the court, for any legal and sufficient reason, or it may be recommitted to the same arbitrators for a rehearing by them." Rev. Stat., 58, § 9. The award, then, may be accepted or rejected for any legal and sufficient reason. But the statute does not in- form us what reasons shall be legal and sufficient. Are they determined by rules of law, or are they left to the discretion of the court, to be decided upon the merits and circumstances of each particular case ? If nothing more than a sufficient reason was requh-ed by the statute, we could safely conclude that the award might be accepted or rejected at the mere will or discretion of the court. But it appears that the reason must be both legal and sufficient. A legal reason must be one which is recognized by some established rule of law. As the statute does not define the legal reasons which should prevail in such cases, our courts must necessarily be governed by common law prin- ciples, whicli are applicable to analogous propositions. That which -would be considered a legal reason for arrest- ing a judgment, setting aside a verdict, or even for grant- ing a new trial, might very justly be considered by a court a legal and sufficient reason for rejecting or recommitting the award of arbitrators. In all such cases, it is true that courts of justice are invested with large discretionary powers ; still, that power should in all cases be governed by rules of law, so far as ap})licable. Had the legislature intended tliat the court should dispose of the award at discretion, they would not have used the words " legal 2inA sufficient." By the use of these words, they obviously intended that the court sliould be governed by recognized rules of law, so far as ap[)licable. OTTUMWA, JUNE, 1849. . 263 Depew V. Davis. But it is said that the words " legal and sufficient rea- son" occupy such a position in the sentence that they only qualify the power to reject the award, and that the power to recommit may therefore be exercised at the will of the judge. True, according to the strict rules of syntax, tlie power to recommit is not qualified by those words ; still we think the legislature intended such qualification. If not expressed, the words may at least be understood as applicable to that power. As implication should not favor arbitrary power, but should support legal rules and prac- tice, we have no difficulty in applying the qualification to the power of the court in this particular. The fact that a writ of error will lie to reverse the order of rejection or recommitment of an award, adds weight to the conclusion, that the power to reject or recommit is not intended to be exclusively discretionary, but should be exercised according to fixed rules of law. A v^i-it of error will not lie to review or regulate a power which is merely discretionary. A case should only be reversed on error, when some rule of law has been violated. A writ of error IS only applicable to a decision at law, and not to a de- cision at will. In giving this construction to that section of the statute, we cannot agree with counsel for the plaintifi" in error, that it confers no power on our district courts over awards, but such as they might exercise at common law, independent df the statute. Unless the legislature intended to confer other and additional powers, why was the section enacted? If intended merely to confirm the common law power which the court already possessed, why was it not so expressed? Clearly the legislature intended something by the section : they intended to confer an authority which could not otherwise be exercised by the district courts in relation to awards ; they intended to confer an additional authority, a sound discretionary authority, to be regulated by additional " legal and sufficient reasons." They were still authorized, as before the act, to reject or recommit, for the common law reasons of fraud or mistake, or want 264 SUPREME COURT CASES, Depew V. Davis. of jurisdiction ; and tliey were also authorized by tlie act to reject or recommit for other " legal and sufficient rea- sons." And these other legal and sufficient reasons must ))e deduced from analogy of law and analogy of circum- stance. That wliich would not be a legal reason to arrest ;i judgment, set aside a verdict, or grant a new trial, should not be considered a legal reason to reject or re- commit an award. As a new trial should always be allowed if the verdict is contrary to law, or works mani- fest injustice to the party applying; (Coo/i v. The State, 1 G. Greene, 56 ;) or if, by any reasonable cause, a party has not been able to present the merits of his case to the jury ; (Jones v. Femiimore, ib., 134 ;) so, for like legal and sufficient reasons, should an award be recommitted to arbitrator. But little inconvenience can result to the parties by re- committing an award to the same arbitrators, as it would only be necessary for them to reconsider the points upon which it was returned to them ; therefore we can see no good reason why a stronger case should be required for the recommitment than is necessary to justify a new trial. Where legal and sufficient reasons induce the belief in the court that manifest injustice has been done by a verdict, a new trial should be granted ; and when the same reasons justify the belief that like injustice has been done by an award, it should be recommitted. But to justify a court in rejecting an award, we think stronger and more obvious reasons should be adduced. A motion to reject should only be granted where a want of jurisdiction is apparent. The jurisdiction of arbitrators is derived from the contract of submission, and is limited by it. There is a want of jurisdiction where it appears that there was a want of notice, or appearance of the party ; where more or less has been considered thau was sub- mitted; where the award is published after the time limited, or where it is partial or interlocutory, when re- quired to be complete and final. If the arbitrators kej)t strictly to their jurisdiction, we think their award should I OTTUMWA, JUNE, 1840. 265 Depew V. Davis. iioi be rejected. But where it appears upon the face of tiie awai-d, or by extrinsic, legal and sufficient proof, that injusLice has been done in any important particular, the a\\'ard should be recommitted. It is properly urged, that as awards are made by judges selected by the parties themselves, they are entitled to great respect. Arbitration and award are so peculiarly appropriate to the adjustment of complicated accounts, so well calculated to avoid expensis'e and protracted litigation, so simple and cheap in their proceedings, as to be adapted to every state and condition of society, and so well cal- culated to secure peace, harmony, and prosperity in all business and social relations, that they should be en- couraged by every enlightened system of jm-isprudence. Still, as no system can be entirely free from fraud, mistake, or injustice, om- statute wisely prevents an award from being regarded conclusive as to the law or the facts, by providing that for good and sufficient reason it may be rejected or recommitted. The proof submitted to the court below, in the case at bar, as before remarked, showed that the party had dis- covered new and important evidence after the award was made, which might materially change the result. This would have been a legal and sufficient reason to induce a new trial, and therefore justified the court in recommitting the award. Besides, from the state of the record, from the fact that it does not purport to give all the evidence, we may infer that other legal and sufficient reasons were submitted to the consideration of the court, which justified the recommitment. Judgment affirmed. C, Olney, for plaintifi" in error. J, C, Hall^ for defendant. Vol. II. 18 266 SUPREME COURT CASES, "Wrisiht V. Ross, WRIGHT V. ROSS. The action of detinue will lie in Iowa, and may be maintained for a pistol, or any other chattel that may be so identified as to be recovered in specie. A statement before a justice of the peace is sufficiently specific in detinue, which describes the property as " a six barreled pistol, called a six shooter or revolver." Tiie ofificial return of a justice cannot be impeached by the mere traverse plea of a party or his attorney, where the record shows no evidence to support it. Where property is taken from a borrower M, by unavoidable force, and the bailor seeks to recover it in detinue from W, it was held that M is a com. petent witness for the bailor. Error to Wapello District Court. Opinion by Greene, J. W. G. Ross commenced an action of detinue before a justice of the peace, to recover a pistol from G. M. Wright. Plaintiff recovered judgment, and the defendant took the case to the district court by writ of certiorari, where the judgment of the justice was affirmed. Upon the trial of the certiorari, the following questions were raised and decided in the affirmative: 1. Is a pistol such property as may be sued for, in an action of detinue ? 2. Is the description of the property sufficiently specific? 3. Was May a competent witness for Ross? It is now contended, that these propositions should have been decided in the negative, and that the judgment of the justice should have been reversed. As these points were respectively urged in the argument, we will give to each a brief notice. 1. Is a pistol such property as may be sued for in an action of detinue? This action has nearly fallen into disuse, and has given place to the more usual actions of replevin or trover. Still it is not forbidden by statute, nor is it altogether obsolete, and may therefore be maintained by our courts where properly instituted. Detinue can only be maintained for the recovery of a personal chattel in specie. Stephen on PI., 16. The thing sought to be re- OTTUMWA, JUNE, 1849. 267 Wright V. Ross. covered, then, must be capable of being distinguislied from all others. A horse, a cow, a slave, &c., are objects that were commonly recovered in this action. But it has been held, that the action will not lie for a bushel of grain, nor for any article that cannot in its nature be distinguished from others. Co. Litt., 286, b; 3 Bk. Com., 152. The goods sought must be so distinguishable from other property that, if the plaintiff recover, the sheriff may be able to deliver the identical goods to him. 1 Chit. PI., 121-3. Hence a deed, or money, or corn in a bag or chest, may be recovered in this action. The question arises, Is " a six barreled pistol, called a six shooter or revolver," so distinguishable as to come with- in the rule laid down by the authorities ? If such a pistol can be readily identified, if it can be certainly ascertained from other pistols, and proved to be the specific property sued for, it clearly follows that it is such a chattel as may be recovered in an action of detinue. A six shooter or revolving pistol may be as readily designated as a horse, a cow, a slave, a bag of money, or a sack of wheat ; and for all these objects detinue has been commonly main- tained. It was held in Mansell v. Israel^ 3 Bibb., 510, that detinue will lie against executors or administrators, for money obtained by them in that character. It has been held, that detinue will lie for a negro woman by na*ne without stating her complexion or age ; also for a cow without describing her color, or for a certain number of knives and forks without a particular description. Ilaynes v. Crutchjield, 7 Ala., 189. If such articles can be sufiiciently identified to justify the action of detinue, it is obvious that an object so rare as a revolving pistol will come within the rule. 2. The next question raised is, Does the complaint filed beiore the ^^ustice set forth a sufiiciently explicit description ot tlie property? It is described as "a six barreled pistol, called a six shooter or revolver." This description, it is true, is rather general ; it is not as specific as it might have been, it is more descriptive of the class to which the SUPHEME COURT CASES, Wriirht v Ross. pistol belongs than of the pistol itself. But still we think the description substantially sufficient, even if the action had been commenced in the district court. The description is as specific as is ordinarily required, either in trover or detinue. Swan's Pr., 585, 589, note 1. In Haines v. Crutchjield^ 7 Ala., 189, a much more general description was held to be good. » Besides, this case was commenced before a justice of the peace, where nothing more than a brief statement of the nature of the plaintiff's demand or cause of action is required. Rev. Stat., 314, § 1. 3. It is objected that May, an interested witness, was permitted to testify in behalf of plaintiff. It aj)pears by the justice's amended transcript, that May was offered as a witness, and that defendant's counsel required him to be sworn as to his interest in the event of the suit; that wit- ness answered, that he did not consider himself interested, and that plaintiff offered to execute a release to witness, but it was not required by defendant's counsel. The return was traversed by defendant's counsel. This traverse states, that May swore that he borrowed the pistol of Ross, and that it had been unexpectedly wrested from him by Wright, in whose possession it was, and that as Ross had sought a specific recovery of the pistol from Wright, he did not consider himself responsible to Ross. It does not appear that there was any evidence to support the traverse. The court decided, that this traverse did not show that the justice had erred. In this decision we can see no error. The official return of a justice cannot be impeached by the mere traverse plea of a party or his attorney. But even the traverse does not show that May was an incompetent witness. It shows that the pistol had been unexpectedly wrested from May by Wright. It is a rule of law, that if a borrowed article perish, or be lost or injured by theft, accident or casualty, which could not be foreseen or avoided, the borrower is not liable. 2 Kent's Com. , 574 ; Story on Bt. , § 240. In such a case the utmost care must be exercised by the bailee; he is liable for slight I OTTUMWA. JUNE. 1849. 269 Wright V. Ross. neglect. It may well be doubted whether May's answer on voire dire, shows such neglect ; it shows that the pro- perty had been forcibly wrested from him, and was in possession of the defendant, from whom it might be specifically recovered. The plaintiff, knowing where his property was, preferred such a recovery to an uncertain remedy against May : and it appears by the return of the justice, without denial, that plaintiff proposed to release May, and that thereupon he was permitted to testify without further objection. Admitting the traverse io ha correct, we think, under all the circumstances, that the court decided correctly in affirming the proceedings of the justice. Judgment affirmed. //. B. Hendershott and B. Jones^ for plaintiff in error. James Baker ^ for defendant CASES IN LAW AND EQUITY, DETEBUINED IK THB SUPREME COURT OF THE STATE OF IOWA, IOWA CITY, JUNE TERM, A.D. 1849, In the Third Year of the State, Hon. JOSEPH WILLIAMS, Chief Juttiet, Hon. JOHN F. KINNEY, ) . ,_ Hon. GEO. GREENE, \ •'"»^"- HARRIMAN v. THE STATE. The act of 1839, authorizing district judges to hold special terms of conrt whenever they deem it necessary, was not repealed by subsequent acts passed to fix and change the time for liolding court. The eighth section of said act is not repugnant to the organic law, nor to the state constitu- tion of Iowa. Statutes in pari materia should be taken together as one law, and should, if practicable, be so construed that every provision shall contmue in force. In a question of construction, all doubt should favor the validity of a law under which rights have been acquired. Notice of a special term, as directed by the act of 1839, is not an essential prerequisite to confer jurisdiction. Tiie statute providing for the notice ifl directory. It will be presumed that the notice was given, even if the VBCord does not state the fact. I IOWA CITY, JUNE, 1849. 271 Harriman v. The State, "State of Iowa" and " The State of Iowa" are substantially synonymous terms. Where an indictment appears to have been exhibited in open court, by the grand jury, and is indorsed "a true l)ill" over the signature of the fore- man, it is conclusive evidence that it was duly found by a legal grand jury. American courts have dispensed with many of the stringent rules and nice technicalities which formerly obtained in the English courts in criminal cases. The record proper in a criminal case, after stating the time and place of holding court, need only set forth the indictment, properly indorsed as found by the grand jury ; the arraignment of the accused ; his plea ; the impanneling of the traverse jury ; their verdict ; and the judgment of the court. Any decision of a court made preliminary to a final judgment, is, per se, a part of the record ; but all other proceedings, such as motions, exceptions, testimony and the like, are no part of the record unless made so by order of the court, by agreement of the parties, by demurrer to evidence, by special verdict or by bill of exceptions. Only such matters as are of record can be brought to the notice and review of this court. Irregularity in proceedings is waived by pleading and submitting to a verdict without objection. Where, on account of prejudice, interest, or other objection, the sheriff la rendered incompetent, the coroner should perform his duty ; but if the party objecting to the sheriff asks the court to appoint an elisor, he by implication manifests an objection to the coroner also, Avhich will justify the court in appointing an elisor. Where a jury was summoned by the sheriff after the prisoner made affidavit that the sheriff was prejudiced against him, but the jury was not objected to until after the verdict, it was held that the objection came too late, and that the irregularity was waived. If a case is not submitted to the jury impanneled at a regular term to try the case, a second jury may be impanneled for the trialat a subsequent term. A prisoner should be present at his trial, and when the verdict is pro- nounced. Where the record shows that the prisoner was regularly arraigned, that he was brought into court, and took bills of exceptions, it sufficiently shows his presence during the trial. The names of the witnesses on whose evidence an indictment is found, should be indoi'sed on every true bill returned by the grand jury ; bui. they need not be made a part of the record. Many legal forms and technicalities possess marked utility in practice. Where the oath required by statute is in substance administered to a jury, it is sufficient. Where tlie jury are " sworn the truth to speak upon the issue joined between the partes," it is not sufficient, in a trial for murder. 272 SUPREME COUHT CASES, Harriman v. The State. Error to Washington District Court. Opinion hy Greene, J. In tliis case, John C. Harri- man was indicted for murdering one David N. Miller. It appears that the prisoner, on being arraigned, pleaded not guilty ; and thereupon the court proceeded to impannel a jury. Tlie defendant then made application for a con- tinuance, Avhich was granted. Subsequently, October 30, 1848, a special term of the district court was held. Upon an affidavit previously filed by the defendant, that the sheriff was prejudiced against him, one Robert Rinkade was appointed elisor to return a jury. Only eight of the jurors were impanneled on the first day of the term, and they were placed in charge of the elisor, with directions that they should not be separated, and to have them in court on the following morning. On the second day the panel of jurors was completed, and sworn " the truth to speak on the issue joined between the parties." The ex- amination then commenced, but not being completed, the jmy was placed under the charge of the elisor for the night, to be returned into court the next morning. The cause was submitted to the jury on the evening of the third day, when they retired in charge of the elisor to consider their verdict, and on the fourth day retm'ned a verdict of guilty as charged in the indictment. Motions in arrest of judg- ment and for a new trial were made and overruled ; and a judgment in due form and sentence of execution were rendered against the prisoner. To the proceedings in this case there are twelve errors assigned ; the most material of which we will proceed to examine. 1. It is contended that the special term of court was not authorized by law, and, as a consequence, all the proceed- ings in the case are coram non judice. This position is clearly correct if the judges of the district court were not authorized by statute to appoint special terms of their courts. In J.'uuinry, 1839, an act Avas passed, fixing tlio IOWA CITY, JUNE, 1849. 273 Harriman v. The State. terms of the district coui'ts ; dividing tlie territory into three judicial districts, assigning them to the respective judges; authorizing them to exchange disti'icts as often as they might agree to do so, and to hold com-ts in each other's district in cases of absence or sickness ; and also autho- rizing each judge to hold a special term of the district €ourt whenever he should deem it necessary, for the trial either of civil or criminal causes. Statute of 1839, y. 128. In the year following, acts were passed changing the time of holding courts in all the districts, but interfering in no other particular with the act of 1839. In 1843, another change was made in the time of holding courts in the second district ; and by statute of 1846, p. 12, new counties were attached to each district, and the time was again changed. By the fifth section of this statute all contra- vening enactments were repealed. There was no feature in this act contrary to that of 1839, which empowered the judges to exchange districts, and to hold special terms of court ; consequently these sections continued still in force. Again, by the laws of 1847, p. 74, a general change was made in the time and an additional district formed ; and finally by statute of 1848, p. 51, an act fixing the times and places of holding the district courts in the first judicial district was passed, providing that in Washington county it should be held on the second Monday in March and on the first Monday in September. It is strenuously urged that, as this act expressly fixed the time and place of holding court, and provides for no special terms, that the district judge had no legal power to hold such a term ; that these various changes in times of holding the courts, and in the size and number of the districts, have effected a complete repeal of the statute first cited ; but in what manner or by what provision of law this complete repeal is effected we are unable to comprehend. In all these changes, and in our transposition from territorial to state government, we see nothing that seriously affects the fifth, sixth, and eight sections of the act of 1839. Their abro- gation, however adroitly argued, cannot be legitimately 274 SUPREME COURT CASES, Harriman v. The State. assumed from any of the reasons and references wliicli have been submitted to cm- consideration. They still stand before us in bold relief as the sovereign will of the legis- lature, perfectly compatible with subsequent enactments, in pari materia, and we cannot therefore regard them as reiicaled by the speculative rules of construction which counsel have so ingeniously applied. It must be conceded that acts, m pari materia^ should be taken together as one law, and so construed, if practicable, that every pro- vision shall continue in force. Pearce v. Atwood, 13 Mass., 324, 344; Holhrook v. Holbrook, 1 Pick., 248, 254; Haynes v. Jenks, 2 Pick., 1 72, 176 ; U. States v. Freeman^ 3 Howard, 556 ; Hays v. Hanson, 12, N, H., 284 ; Morris V. The D. ^^ S. Canal, 4, Watts & Serge., 461 ; Harrison V. Walker, 1 Kelly, 32. Again, it is quoted in the books as a general and un- controverted principle, that " although two acts are seem- ingly repugnant, yet they shall, if possible, have such construction that the latter shall not repeal the former by implication." Bac. Abr. Statute D; Foster s case, 11 Coke, 63 ; Weston's case, Dyer, 347. And we have it from quite recent authority that the law does not favor repeals by implication. Locker v. Brookline, 13 Mass., 342, 348; Wyman v. Campbell, 6 Port., 219; Goddardw Boston, 20 Pick., 407, 410; McCartler v. Orphan Asylum Society, 9 Cowen, 437, 506; Bowen v. Lease, 5 Hill., 221, 225. Properly observing the rules which prevailed in the foregoing cases, and applying them with all theu* force of analogy to the question under consideration, we cannot suppose a well founded doubt can be entertained that those three sections of the statute of 1839 are still in force, and that our district judges possess the legal power of ap})ointing and holding special terms of their courts. The law of 1848, p. 21, conferring additional powers on the judge of the second judicial district to adjourn regular terms as fixed by law, in order to hold special terms at the same time, is i-eferred to as an argument favoring the repeal 'if the statute of 1839. But Ave are unable to see IOWA CITY, JUNE, 1849. 275 Harriman v. The State. mncli force or application in this reasoning. The new statute has no relation or reference to the former enact- ment. The old law is general in its application, confer- ring powers and duties generally upon the judges of the district courts ; it is confined to no particular judge or number of judges, but has a jurisdiction co-extensive with the state. The new law is confined to one particular dis- trict, and confers upon its judge powers unauthorized by the general statute. How can the latter then be regai'ded as a repeal, even by intendment of the former statute, or be construed into a rational supposition that the legislature regarded it as repealed, even if their regarding a law as repealed would make it so? The courts, the proj)er tribu- nals to judge of the force and effect of statutes, have by contemporaneous construction and judicial action recog- nized the existence and vitality of that statute; and hence, if this could be regarded as a question of doubtful con- struction, that doubt, from motives of public convenience and policy should favor the validity of the law, in order to preserve undisturbed the rights of parties and titles to property which have been adjusted under its usage. Rogers v. Goodmn, 2 Mass., 475, Opn. of the Justices, 3 Pick., 517 ; Seals v. Hale, 4 How., U. S., 37 ; The People V. Canal Commissioners, 3 Scam,, 153, 160; and again in this case the rule, that a long and uninterrupted practice under a statute is good evidence of its construction, must have its force. McKeer v. Delaney, 5 Cranch, 22 ; Morri- son V. Barksdale, Harper, 101. But it is insisted that, if the eighth section of the act of 1839 has not been otherwise abrogated, it was repealed by the constitution in 1847, which continued in force such territorial laws only as were not repugnant to the consti- tution ; that as our state judicial system is not as the ter- ritoral system was, and there having been a general change in the extent and number of the districts, and in the powers and number of the judges, the law in question is rejiugnant, and therefore inoperative. But we can see nothing in it repugnant to the constitution, or inconsistent 276 SUPREME COURT CASES, Harriman v. The State. with our new form of government. We are unable to perceive liow the change so often adverted to by counsel can so seriously affect the law in question. Indeed, the same arguments would apply with equal force to vitiate all territorial laws at the adoption of the constitution. Finally, it is objected that the legislature of the terri- tory had no right under the ninth section of the organic law to pass an act authorizing the judges to hold such special terms of the district court, as they were by said section to be held " at such times and places as might be prescribed by law." Strictly viewing this clause, it may very plausibly be assumed that the courts could be held at such times only as the appropriate law might fix upon and designate. The application of this principle might safely be admitted so far as the regular terms of the courts are concerned ; and this concession would not in the least militate against the power of the legislature to authorize the judges to hold special or extra terms of their courts, whenever in their opinion occasion might require. This would be a rightful subject of legislation within the mean- ing of the organic law, and within the province of the legis- lative assembly. But had the legislature conferred upon the judges by statute authority to prescribe the times generall}'' of holding their courts, would it not still be done by authority of law ? It would still be a regulation ema- nating from the supreme legislative, and only authorized power within the general spirit and meaning of the organic law, if not within its strict letter. It is not, however, in this discussion necessary to inquire further into the power of the legislature, than that which has been exer- cised in authorizing the judges to hold special terms of courts. And upon this point, as already assumed, we can entertain no doubt. It is a power that never was judicially questioned, under the territorial organization, and has been too long acted upon to be now successfully contro- verted. The authority to hold special terms should never be withheld from a court ; it may be regarded as a right, which a court of general jurisdiction should exercise ex 1 IOWA CITY, JUNE, 1849. 277 Harriman v. The State. q^cio ; it frequently becomes indispensable in the admin- istration of justice, and especially in extending to the accused in criminal prosecutions his constitutional ''right to a speedy and public trial." Another objection was urged to this special term, to which we will merely advert. It is contended, that if the court was legally empowered to hold a special term, it was in this instance done without authority of law, because it does not appear by the record that the judge notified the sheriff of the same, or that the sheriff put up at each of the precincts in the county at least three weeks' notice of the time when the special term was to commence. As de- cided by this court time and again, we must necessarily presume that the officers of the court performed their duty in such particular, unless the contrary ajDjDcars. An aver- ment of such facts in a record is not necessary. The re- cord being silent, the fact that legal notice was given is established by intendment. There is another reason why this objection cannot now i^revail, even if affirmatively before us. It does not appear to have been raised in the court below ; but was silently acquiesced in, and waived. The proceedings of the court without such notice were not void. The statute j)roviding for it is merely directory, and such notice is not considered an essential prerequisite to confer jurisdiction. Friar v. The State, 3 How. Miss., 422. Such notice, however, being particulary important as a safeguard to the public, and especially to those who may be affected by apy special term, it should never be dispensed with by the courts ; but the want of it should always be taken advantage of within a reasonable time, and at the proper place. On thus considering the objec- tions raised to the special term, we must conclude that it was authorized by law. 2. It is assigned as error, and urged that the prosecu- tion is not conducted in the name and by the authority of " the state of Iowa," as required by the sixth section in the sixth article of the constitution. It appears that in most of the proceedings the article " the " is omitted, run- 278 SUPREME COURT CASES, Harriman v. The State. iiing in the name of " state of Iowa," instead of " the state of lorca.'''' These terms are essentially the same. The words used designate the party and the state so clearly that they cannot possibly be mistaken for any other party, state or object. The short style, State of Iowa, is recog- nized in the preamble and first article of the constitution. Thc}^ appear to have been regarded by the framers of that instrument as synonymous terms, and to have been used indiscriminately as the same. Indeed the difference is so tritiing, the defect in form so very minute and immaterial, that we cannot regard it as worth}' of serious consideration, especially at this late hour — the objection not having been raised, but silently acquiesced in, before the district court. 3. The objection is raised, that the record does not set forlh that the indictment was found by a legal grand jury, nor does it contain then- names. It appears by the record, that the indictment was exhibited in open court by the grand jury, and over the signature of their foreman indorsed "a true bill." Upon that j^oint, the record states all that is necessary, all that is required by the established practice and usage of our courts. The certificate of the foreman, affirming it to be a true bill, is evidence conclusive and proper that it was duly found by a legal grand jury. Spratt v. The State, 8 Mis., 247. If the requisite number of law- ful grand jurors had not participated in, and favored the finding and presentment, it would not be " a true bill," as authenticated by the certificate of the foreman. Rev. Stat., 297, § 3 ; Turns v. Commo7imealth, 6 Metcalf, 225, 233. It is, we believe, in pursuance of the English practice, and a i)revailing custom in all the states of this Union, for the grand jurors to present the bills found by them in open court, where they openly acquiesce in the finding; and this becomes another proper and strong item of evidence that the bill was found pro2)erly and by the required number of jurors. Hence in The State v. Crighton, 1 Nott & McCord, S. C, 256, it M^as held that the finding of a grand jnry, having been announced by the clerk in their pre- sence, IS good, although not signed by the foreman accord- IOWA CITY, JUNE, 1849. 279 Harriman v. The State. ing to the usual practice. A decision to the same effect has been made in our territorial supreme court. Wau/iO?i- chaw-neck-kaw v. The United States, Morris, 332. The rules of practice recognized by this decision we do not feel disposed to depart from. Their propriety and expe- diency not having been questioned, they have been generally concurred in by our courts. In that case, the court were very j)roperly of the opinion that the names of the grand jurors need not be inserted in the transcript of a record from the district court, and that other forms analogous to the English practice might be dispensed with. The cases cited by counsel from Howard's Miss. Reports apj)ear to have been predicated upon the old English authorities. But we have long since dispensed with many of the strin- gent rules and nice technicalities which the courts cf tliat country in mercy established, to shield and protect the prisoner against the harsh and sanguinary penalties of their criminal code for light and often trivial offences. Under the extreme severity of laws, which appeal* to have been enacted without the slightest regard to human life, and under regulations which did not secm'e counsel to the prisoner, and seldom a prompt, fair, impartial trial, no wonder that merciful judges, under the promptings of humanity, and being regarded especially as protectors and counsel for the accused, should seize at trifling and unim- portant objections to save the lives of those who may have been arrested for ordinary and often doubtful offences. But in this country, where life and liberty are so tena- ciously guarded by our constitutions and laws, where a speedy, public and impartial trial is uniformly secm'ed to the accused, where, though destitute of friends or means, he is furnished with able counsel at public expense, and with compulsary pi ocess to secure the attendance of his witnesses, and at ail times entitled to confront his accusers face to face ; here where the accused is entitled to greater privileges than the prosecution in every stage of a criminal proceeding, the reason for such extreme technicality and unmeaning precision ceases to exist. The profound 280 SUPREME COURT CASES, Harriman v. The State. policy of the law will not justify the continuance of a ru'e after all the reasons for it have disappeared. Recent decisions in England show a commendable re- laxation from those rigid technical rules which had been there adopted. These have resulted from the humane modification of their criminal code, which is becoming more characteristic of an enlightened Christian govern- ment, and more comformable to the wise and just princi- ples of the common law. In TAe King v. Marsh, Adolph k Ellis, 236, we have a decision in point showing that the English courts are ameliorating their old teojmical rules to a rational standard. It was in that case decided that the number and names of the grand jurors need not be inserted in the caption of an indictment. While upon this point, in order to settle the practice and avoid controversy, it may be well for us to express our views as to the essential ingredient of a transcript from the record in criminal cases, when brought to this court for the correction of errors. McKinney v. The People, 2 Gil., 540, 551, in an excellent opinion delivered by Judge Lockwood, and which is in many particulars ap- propriate to the case at bar, it is stated that, "in a crimi- nal case, after the caption stating the time and place of holding court, the record should consist of the indictment, properly indorsed, as found by the grand jury; the ar- raignment of the accused, his plea, the impanneling of the traverse jury, their verdict, and the judgment of the court. This is all, in general, that the record need state." This we consider a safe rule, comprehending all that is necessary to be enrolled as constituting the record proper in a case. It may be remarked that any decision or judg- ment of the com-t in the case made preliminary to the final judgment, becomes per se a part of the record, but all other matters and proceedings, such as motions, exceptions, testimony and the like, do not form any part of the record unless made so by order of court, by agreement of parties, by demurrer to evidence, by special verdict, or by bil] of exceptions. In one of these methods, everything mate- IOWA CITY, JUNE, 1849. 281 Harriman v. The State. rial or in any way affecting the rights of parties in the proceeding below, may be preserved and brought to the notice and review of this court. And unless so brought before us, or if the transcript of the record does not ad- vert to the fact complained of, we must take it for granted that the proceeding was according to law. Finally, upon this point, even if the objection under con- sideration amounted to the irregularity complained of, it was waived by the prisoner's pleading and submitting to a verdict without objection. 4. It is assigned as error that the court apiDointed an elisor to impannel the jury; and it is insisted that, under the statute, the coroner should perform that duty in all cases where the sheriff becomes incompetent, under the influence of " partiality, prejudice, consanguinity, or in- terest." Rev. Stat., 195, § § 2, 3, 4. 5. It is also insisted that the court erred in permitting the sheriff to act after the prisoner filed his affidavit ob- jecting to him. 6. That the court erred in impanneling the second jury. It appears by the bill of exceptions, and by the affi- davit therein copied, that the proceedings referred to in the last three objections were had chiefly at the especial re- quest of the prisoner. In his affidavit stating the sheriff to be prejudiced against him, he expressly prays the com't to appoint an elisor to act in his place. Had the affidavit objected to the sheriff alone, without desiring the appoint- ment of an elisor, the coroner, had there been one, should no doubt have performed the duties ; but by desiring an elisor, the prisoner, by strong implication at least, mani- fested an objection to the coroner, and therefore, for his benefit, the court very properly appointed an elisor. But it appears that the sheriff acted after the affidavit was filed, in summoning the panel of jurors for the special term at which the prisoner was tried, and also in selecting talesmen after the regular panel was exhausted. Had the prisoner or his counsel objected, this would have been palpably irregular, but we are advised by the bill Vol. IL 19 282 SUPREME COURT CASES, Harriman v. The State. of exceptions that it was done " in the presence and hear- ing of the prisoner without objection on his part; that after the sheritfhad summoned several talesmen, the coun- sel of the prisoner stated that they were unwilling to have the sheriff proceed any further, and requested the court to appoint some other person, and the court, with the consent of the prisoner, directed Robert Rinkade to act as an elisor during the trial. The jury of twelve men who tried the case were not objected to by either party before they were sworn, for any irregularity or informality in sum- moning any of the jurors. The objection does not appear to have been raised till after the verdict, when it was urged in support of the mo- tion to arrest the judgment. This we regard as a sufficient answer to these objections. The proceedings were either at the request, or met with the acquiescence of the accused, and he should not now be permitted to come in and take advantage of slight and unimportant irregularities, which took place mostly for his benefit, and at his request. We freely concede the correctness of the principle in crim- inal cases, and especially when human life is at stake, that the prisoner is to be considered as standing on all his essential rights, and as waiving nothing as to material irregularity which may detract from a fair and impartial trial; but we can see nothing in those before us, which could injuriously affect the rights of the accused, or in any way work injustice or hardship upon him ; nothing of which he now has a right to complain. The authorities cii"ed by counsel for the state sufficiently confirm the cor- rectness of the principle we have hitherto followed, that it is too late after verdict to object to irregularity in the manner of impanneling the jury, when no objection was raised on the trial. But independent of this rule, which disposes of the question, the objection raised to the second jury could not be sustained. The jiu*y impanneled at the regular term of the court were necessarily discharged after the prisoner's application for a continuance was granted ; and the ad- IOWA CITY, JUNE, 1849. 283 Harriman v. The State. jouriiment of that term of the court, which, it appears, im- mediately followed the continuance of this cause, neces- sarily dissolved the regular panel of jurors, which was only summoned for that term. A new venire, another jury be- came indisijensable for the special term, and for the trial of the prisoner. Clearly there was no other course for the court to adopt, and we think it would puzzle even the ingenious counsel in this case to point out any plausible alternative. 7. It is assumed that the prisoner was not present at the trial and when the jury rendered their verdict, and that the fact of his presence must appear aflfii-matively of record. The right of a prisoner to be present during the pro- gress of the trial, and when the verdict is rendered, can- not be questioned. The right " to be confronted with the witnesses against him" is guaranteed by the constitution ; and it is essential that he should be present when the ver- dict is rendered, in order to exercise the right of polling the jury. This is generally regarded by com-ts as an im- portant incident to a jury trial. In New York, the prac- tice is to give either party the privilege of having the jury polled at any time before the verdict is recorded. Fox v. S?mt/i, 3 Cow., 23; T/w People v. Perkins, 1 Wend., 91. The courts of Massachusetts and South Carolina deny this riglit. Commonwealth v. Rohy, 12 Pick., 496, 512 ; State V. Allen, 1 McCord, 525. But the practice of the New York courts in that jiarticular, and which also prevails in England, has been adopted by most of the state courts in this country, and being more conformable to the rights of parties, we are of the opinion that the rule should continue to obtain in Iowa. In order to secure this important right to prisoners, then, it is necessary that they should be pre- sent at the time the verdict is pronounced. But does it appear by the record in the present case that the accused was not in court during the trial or when the verdict was returned ? We think not. He appears to have been re- gularly arraigned, and the record entry of the day on which his trial commenced declares that the prisoner was brought 284 SUPREME COUHT CASES, Harriman v. The St-ite. into court ; and the entry of the day on which the verdict was rendered refers to the prisoner at the bar ; and again hip presence is sufficiently shown by the bill of exceptions. And even if the record after the arraignment remainec perfectly silent upon this point, we could not by implica- tion conclude that the judge neglected his duty in this par-* ticular ; but we should rather suppose, by legal intend- ment, till the contrary appears, that the court had performed its duty in all those particulars, and had extended to the accused his constitutional and legal rights. 8. There are three errors assigned, which may be con- sidered under one question. Is it necessary that the tran- script of the record should set forth the names of the wit- nesses upon whose evidence the indictment was found? They unquestionably should be indorsed upon every true bill returned by the grand jury to the district court ; Rev. Stat., 297, § 3 ; but it by no means follows that they should necessarily become a part of the record in a case ; it is not usual to have them so incorporated, nor does it come within the rule we have given in this opinion. It is one of those facts which a court will always presume favorable to the correctness of the j^roceeding. Again, if the names of the witnesses were not indorsed upon ihe indictment, the objection should have been raised before the district court, otherwise it will be considered as waived. In effect at least, this question was so decided by this court at Burlington in Ra;i/ v. T/ie State, 1 G. Greene, 316. In thus confirming the action of the court below upon these various points, it may be well to observe, that we have been in no small degree influenced by the liberal policy of our criminal code, in dispensing with many of the forms and technicalities which have prevailed to an alarming extent in the administration of criminal juris- prudence. We are admonished by the many failures in prosecutions for heinous offences, that the imperative duty devolves upon courts to disregard unsubstantial forms and unmeaning technicalities, and to look more to the substance and merits of each case. This is necessary to preserve IOWA CITY, JUNE, 1849. 285 Harriman v. The State. tlie majesty of law, and to promote principles of peace, equality and justice. But we do not wish to be understood as entirely disre- garding legal forms and teclinicalties. There are many, very many, which possess marked utility, and which exer- cise a wholesome restraint and salutary influence in prac- tice. These become matter of substance, and should therefore be adhered to, especially those of an established character, which impart uniformity, stability, certainty, and solemnity to judicial proceedings. Among the most important of these we class the form of an oath required by law to be administered to the jury in the trial of a criminal cause ; which leads us to the only remaining question worthy of consideration in this case. 9. It is alleged that the oath of the jury as shown by the record was illegal. The record sets fortli tliat the jury were " sworn the truth to speak upon the issue joined between the parties." This appears to have been the form of the oath administered to the jury, as a qualification to try a prisoner upon an issue involving life or death. It is so deficient in substance, so barren of solemnity, of essential decLarations and restrictions, which should be required as the most imposing moral and legal restraint from those wlio are intrusted with the life and destiny of a fellow-being, that we can under no rule of practice afilrm the judgment which resulted from their verdict. Rev. Stat., p. 298, § 5, i-equires that the oath or affirma- tion of petit jurors in criminal cases shall be as follows, to wit: "You solemnly swear (or affirm,) that without respect to person or favor, or fear, you will well and truly try, and true deliverance make, betvv^een the ' State of lojva ' and the prisoner at the bar, whom you shall have in charge, according to the evidence given you in com't, and the laws of this ' 6;to^eace of the United States, (State of Iowa,) with malice aforethought, either express or implied." Rev. Stat., 165, § 4. The second section of the same act declares, that " the manner of the killing is not material, further than it may show the disposition of mind, or the intent with which the act was committed." The fourth section enacts that, " In order to maKe the killing murder, it is requisite that the person injured die within a year and a day after the stroke received, or the cause of death administered." The act entitled, " An act regulating criminal proceed- ings," Rev. Stat., 153, § 46, provides, that "the body of the indictment shall be considered as made up of charges and specifications, and no indictment shall be quashed, if an indictable offence is clearly charged therein ; nor shall any motion be entertained, with a view to arrest, reverse, or set aside any judgment, on accottnt of a defect in the indictment, if the charge upon which the offence was tried be so explicitly set forth that judgment can be rendered thereon." Section forty-eight of the same act provides, that " nothing need be stated in the body of an indictment which is not required to be proved upon the trial in sup- port of the charge." This indictment declares that the deceased was killed by the accused Nash " feloniously, and with malice afore- thought," and substantially and distinctly avers that the act was done in violation of or " against the statute in such case made and provided." Although the precise term " unlawfully " is not used, still, as it is charged to have been done " against the statute," &c., it must be taken as done unlawfully, and the use of the precise word is not indispensable to aid the language used in the indict- ment to convey the idea required by the statute as a charge to make up the crime. The statute is the law. 294 SUPREME COURT CASES, Nash V. The State. If the act complained of was done in violation of it, it was done unlawfully. The second assignment of error is answered by the forty-sixth section of the act regulating criminal proceed- ings cited above, which provides that "no judgment shall be arrested, reversed, or set aside on account of any defect in the indictment, if the charge upon which the offender was tried be so explicitly set forth that judgment can be rendered thereon." There can be no mistake as to the offence here charged. All the facts necessary to constitute the crime of murder under the statute, so that judgment in accordance with the law could be rendered, r.i e clearly stated. The statute only requires such facts to be stated in the indictment as are required to be proved on the trial. This requisition, as we have shown by a statement of the contents of the indictment, has been fulfilled and substan- tially observed. It is also contended and urged, for ground of reversal of the judgment of the court below, that " the time of the death of Reddinis not sufficiently set forth." The indict- ment states that the wound was inflicted on the 14th day of September, a.d. 1848, and that Reddin died, in conse- quence thereof, on the 18tli day of the same month, being four days after he received the wound. This, for all legal purposes, is sufficiently certain and conclusive as to the time of his death, being within the limitation prescribed by the statute, in which the death must occur to make the killing murder. An objection is also made to the validity of the indict- ment, because the wound is not particularly described. We know that precedents are numerous in which particu- lar description of the wound, as to length, depth and breadth, is set forth, and that they have been followed even till the present day by some who are learned in the legal profession. Such particularity cannot vitiate an indictment, and may serve to enlarge and render it quite formidable and imposing; but as the law is now, under IOWA CITY, JUNE, 1849. 295 Nash V. The State. the provisions of our statute, this is not requisite. So far as the wound is concerned, it is sufficient to aver that it was inflicted by the accused on the person of the deceased, tliat his death was caused by it, and that the act was done within the jurisdiction of the court. Enough has been presented to show that the validity of the indictment is not successfully assailed by the 1st, 2d, and 3d assignments of error, and that with reference to them the judgment of the court is in accordance with the law. It is contended that the district court of the county of Muscatine had not legal jurisdiction of the offence, and proceedings thereon ; that the act was perpjtrated in the county of Scott, on board of a steamboat, and that the boat afterwards passed through the county of Muscatine. The blow was given, and the wound, of which the deceased died, was inflicted in the county of Scott. From thence the boat, on which the parties in the transaction were, passed down the river, and stopping at the town of Bloom- ington, in the county of Muscatine, the wounded man, Reddin, was taken ashore, and Nash, the prisoner, was committed to prison, there to await his trial. He was there tried and convicted. Here again, the legislature of the state, foreseeing the possibility of such occurrence, and the necessity of pro- viding for it, by convenient and positive enactment, have prevented the success of such objection. Rev. Stat., 153, § 42, provides, that " where a criminal act has been com- mitted in one county, and consummated in another, (as where the mortal blow was given in one county, and the death took place in another,) the offender may be indicted in either county." The application of this act to the case at bar is too obvious to allow of any discussion. " The mortal blow was given " in Scott county, " and the death took place in " the adjoining county of Muscatine. The statute, therefore, conferred jurisdiction of the case on Muscatine county. But it is further contended that the offence was com- 296 SUPREME COURT CASES, Nash V. The State. mitted on a steamboat, and that the boat afterwards passed through the county of Muscatine, and in such case the statute confers no jurisdiction. This objection is put upon the peculiar hinguage of the statute relative to the com- mission of offences on steamboats or other vessels, passing upon a voyage by, or through the state. Rev. Stat., 152^ § 39, enacts that, " Where a person shall commit an offence within this territory (state) on board of any vessel or float, he may be indicted for the same in any county, through a?i^ part of which such vessel or float may have passed on that trip or voyage." The point made here by the counsel for the prisoner is that the indictment was found, and trial had in a county through whicli the boat passed after the mortal wound was given, or the offence committed ; and, therefore, the act of the legislature applying to counties, or j^art thereof, through which the vessel had j)reviously passed, conferred no juris- diction on that county. What is the obvious intent of this act? Clearly to pre- vent the escape, with impunity, of offenders against the law, by securing their arrest, in case of the commission of crime on vessels afloat within the jurisdiction of the state. The rapidity with which steamboats move, and the secrecy of night travel on them, as well as other craft used on the streams, required that extraordinary means should be resorted to, in order to prevent, detect and punish where more than common opportunity was pre- sented for the commission of crime, and escape from its punishment. To confine the operation of this section of the law to counties, through which such boat had already passed, would in many, if not most instances of crime thus committed, thwart the evident design of the enactment, by leaving the offending crew of a vessel a clear and open channel to run before the law. The officer of the law would be unable to exert his power until " the boat had left him." It certainly cannot be supposed that a special provision of this kind would be enacted for any other pm'pose than to extend the jurisdiction of the law, so as IOWA CITY, JUNE, 1849. 297 Nash V. The State. to secure the end of justice, by rendering such transient offenders amenable to the sure hand of the haw. But we think the language of the law, when fairly con- strued, settles this question. It expressly refers to " that trip or voyage," meaning any county through which the vessel may have passed whilst performing her " trip or voyage," The vessel on which the offence was committed, as the record shows, did pass on her *' voyage " from Scott county, down the river Mississippi, to the county of Mus- catine, where the offender, Nash, was arrested, tried and convicted. The whole proceeding was within the juris- diction of the state of Iowa, and the boat having passed through a part of the county of Muscatine, within which the arrest was made, we think jm*isdiction of the case was properly and legally exercised by the district court of that county, as far as this point is concerned. The objection that the district com*t of Muscatine county was not legally in session when this cause was ■ tried, and judgment given, is answered by the record. It appears that the indictment was regularly found by the grand jury at a regular and legal term of the court. It fiu'ther appears, that the cause was twice continued, and the com*t as often adjourned, at the pcuHiciilar request of the prisoner, and for his benefit^ by his agreement on file. It certainly is unnecessary to resort to argument to show that the court below was not in error here. The humane indulgence of the com-t in granting further time to the prisoner, who stood for trial in a capital case, when it was prayed for by the accused himself to enable him to procure the testimony of his witnesses in defence of his life, cannot be successfully pleaded as error, so as to affect the judgment in the case, by him. He cannot complain of error in a proceeding which was clearly bene- ficial to him, and which was had in answer to his own request. It only remains for us to dispose of that assignment of error relative to the reading of the deposition on part of the prosecution. The dedimus to take the depositions was Vol. IL 20 298 SUPREME COURT CASES, Nash V. The State. prayed for, granted and taken at the instance and on be- half of the j)risoner and plaintiff in error here. And the depositions having been returned and opened, by leave of the court, after being properly tiled as a part of the case, the court allowed the prosecuting attorney to read them on part of the prosecution. To this proceeding the counsel for the prisoner neither objected nor consented. This action of the court in the case is complained of here as illegal ; and for it a reversal of the judgment is urged. For the protection of the rights of the accused, the provi- sion and power of the constitution is invoked, and it is claimed in his behalf, that he had a right to " be con- fronted by his accusers and the witnesses of the state." It is most clearly the duty of the court to guard carefully the rights of a citizen when upon trial for high crime. It is bound to see that he has a full, fair, and impartial trial, under the constitution and the laws. Has he been, in this case, denied the benefit of this right ? The testimony was of his own jDrocurement. The witnesses were selected by himself, and he propounded the questions which were answered by them. At his instance, the depositions were returned and filed in the court, as part of the case for hearing, and in order to sustain his defence on the issue joined. The evidence, if relevant and material, was in the possession of the court, by his own act. It had not, in an}^ way, been subject to the control of the prosecution, until after it was filed in the ease, as the testimony of the prisoner, for his own benefit ; when filed, it was in the custody of the court, as evidence in the case. We cannot see, under the circumstances, how moral wi'ong, or in- justice in fact, could be done to the prisoner. Whether the depositions were read by the counsel for the state, or for tlie prisoner, could not materially afi'ect the merits of the case. The bill of exceptions does not show that the pris- oner, or counsel, offered any objection to the reading of til em, by the attorney for the state, at the time ; but merely took an exception to the ruling of the court in suff'ering them to be read. Nor does it appear that any intention IOWA CITY, JUNE, 1849. 299 Nash V. The State. was shown, or attempt made by the prisoner or his counsel to withdraw the depositions from the files of the court or the trial of the cause. It is the mere act of reading them, by the counsel for the state, which is excepted to. Was the court legally justified in thus permitting the evidence of the prisoner to go to the jury? We think this ruling of the court is warranted by the act of the legislature "regulating criminal proceedings." Rev. Stat., 160, § 109, where it is enacted, that " the power and practice of the courts in criminal matters shall (except so far as herein modified) remain the same as they have heretofore been ; and shall, as far as practicable, be made to coincide with the corresponding practice in civil cases." By turn- ing to " An act regulating the naode of taking depositions, and to provide for the perpetuation of testimony " in civil proceedings. Rev. Stat., 228, § 9, we find that it is provided, that " all depositions taken in pursuance of this act, w/ien returned into court, maj'" be read by either party, on the trial of the cause to which they relate." Here the legis- lature again, we think, has given direction to the power and action of the court in relation to the practice in this very matter. We view the course adopted, and acted upon by the court, as in accordance with the practice prescribed by these acts taken in connection and fairly construed. This view of the questions contemplates this construction, and the legislative enactments on which it is put, as substantially free from constitutional objection, and working no WTong to the prisoner, by taking from him his legal rights ; whilst the great designs of judicial trial, the ascertainment of truth, and advancement of justice, are attained by the court. The court below, by its proceed- ings in the case, as it appears of record, as well as the counsel for the prosecution, seems to have extended to the defendant every opportunity of making manifest his in- nocence, consistent with " the law of the land," adminis- tered with a careful regard for the public security and weal, as well as the rights of the accused. We see nothing in the errors assigned, which, viewed in the light of 300 SUPREME COURT CASES, Fitch V. Casey. reason, justice, or laAv, will warrant us in interfering with the judgment of the district court. Judgment afi&i-med. S. Wkic/ier, for the prisoner. W. G, Woodward, for the state. FITCH a al V. CASEY. A tax deed is not good which conveys more land than was assessed or ad. vertised for the taxes. If A covenants to make B a good and sufficient deed, B is not obliged to take the deed, unless A has a good and indefeasible estate in the land cove- nanted to be conveyed. Dependent and independent covenants explained. Plaintilf agreed to do work for defendant and take land in payment. Defend- ant contracted to make a good title to the land, on the performance of the work, but the title was not in him. Held that plaintiff was at liberty to rescind the contract and was not obliged to do the work, and that if he did the work, he was entitled to payment as on a cash contract to do work. Erkor to Muscatine District Court. Opi7iion hy Kdstney, J. Peter Casey filed a petition for a mechanic's lien, stating that on the 13 th day of August, 1847, George W. Fitch being then alive and owner of the middle twenty feet of lot 6 in block 12 in the town of Bloomington, Iowa, entered into a contract with the petitioner and employed him to furnish labor for erecting a storehouse on said lot, which petitioner pro- ceeded to do, and that before the completion of said con- tract, said Fitch deceased. That Harriet Fitch, the widow and administratrix of said George "W. Fitch, contracted with and employed the petitioner to perform other and further work on said building towards the completion of the Bame. That such labor was fm-nished to the amount (;f IOWA CITY, JUXE, 1849. 301 Fitch V. Casey. $162.37, as per bill of particulars filed and made part of the petition ; payment of whicli became due when the same was performed, but has not been made. Petitioner further represents, that for that part of the labor contracted for by said George W. Fitch, pay- ment was to be taken in the east half of lot number 8, in block 103, at $50; or if said Casey should pre- fer to purchase twenty-four feet on the westerly side of lot 4, in block 74, at $150, he was to have and receive the same. Petitioner represents that he has preferred to purchase the said twenty-four feet in said lot 4, and has signified said preference to the said Harriet Fitch, but charges that said George W. Fitch had not, nor have his representa- tives, any good title in law to the said twenty-four feet by which they or any of them can convey the same to peti- tioner. The petitioner prays for the benefit of an " act rela- tive to mechanic's liens and for other purposes," and for a lien upon the premises aforesaid. To this petition the defendant filed a plea, stating in substance that the contract was entered into in the lifetime of said George W. Fitch, whereby it was discretionary with the said Casey to receive in payment of said work, either the east half of said lot number 8, in block number 103, at $50, or to purchase twenty-four feet on the westerly side of lot 4, in block 74, at $150. And the said defendants aver that after the Avork to be performed by said plaintiff under his contract with said Fitch was completed, the said plaintifi" did choose and prefer to purchase twenty-four feet on the west- erly side of lot 4, at $150, which said parcel of lot the said George W. Fitch died seized, and to which he has a good and sufficient title. The defendants further aver, that it was in consideration that the said plaintiff would purchase said twenty-four feet, at the sum of $150, that she, as administratix, employed him to do the other and further work upon said build- 302 SUPREME COURT CASES, Filch V. Casey. ing; and that after said work was performed, she ac- counted with the jjlaintifi: and paid him $18.62 which was to be in full of all demands, when she should make to him a good and sufficient warrantee deed of convey- ance to said part of lot 4. The defendants further say, that they are ready and willing at all times to convey to plaintiff said part of lot, and to perform specifically said contract, and that they are ready, upon the authority of the court in chancery sitting, to convey said part of lot in like manner as the said George W. Fitch could or ought to have done were he living. To this plea the plaintiff re- plied, that neither the said defendants, nor the sr.id George W. Fitch in his lifetime, had a good title to said l^art oi lot 4 in the plea mentioned, and this he prays may be inquired of by the county. The cause was submitted to the court upon this issue of title, and testimony having been offered, it was adjudged by the court that the defendants had not sustained their plea, and the court finding for the plaintiff, rendered judgment in his favor for $150 with a lien for the pay- ment on the middle twenty feet o.' lot 6, with leave to sue out a special execution. It appears from the bill of exceptions, that on the trial of this cause the court ruled that it was material to determine whether George W. Fitch, in his lifetime, was seized of and had title to the westerly two-fifths of lot 4, in block 74, in the town of Bloomington; and the said defendants produced a deed made in due form by the collector of taxes of Muscatine county, Iowa, to the said George W. Fitch deceased, for the next two-fifths of said lot, the said deed having been made in pursuance of a judg- ment of said court at the spring term thereof, 1847, against the said two-fifths of said lot for non-pajmient of the tax due thereon for the year 1844. It appeared that but the west one-fifth of said lot had been assessed for the year 1844; that on the delinquent list the collector returned the west two-fifths as delinquent ; that the west one-third of said lot was advertised as required by law; and the ques- IOWA CITY, JUNE, 1849. 303 Fitch V. Case}'. tion was whetlier these variances between the assessment, advertisement and judgment, would vitiate the title of the said George W. Fitch to the west one-fifth of said lot, which was all that was claimed by said Fitch under said deed. To prove title to the one-fifth of said lot next to the west one-fifth, the defendants offered a deed of gen- eral warrantee dated February 1, 1841, from Charles A. Worfield to George W. Fitch, acknowledged and recorded, conveying a part of said lot by the following description, to wit: "One fifth part of lot 4, in block 74, being twelve feet of said lot, the said lot being divided into five equal strips, and the numbering beginning on the east, the piece hereby intended to be conveyed is the fom'th from the east side of said lot." And the court decided that the said variances raised such a doubt of title in the said Fitch, that his contract with the said plaintiff, as set forth in the defendants' plea, could not be discharged by a good and suflicient deed of general warrantee to twenty-four feet on the westerly side of lot 4 in block 24 ; the size of said lot being admitted to be sixty feet front by one hundred and forty feet deep. To which ruling and opinion of the court the defendants excepted. It will be recollected that, according to the pleadings, the plaintiff and defendants agree in relation to this main feature in the contract, that it was optional with Casey to receive in payment for his work either the east half of lot 8, or to purchase twenty-four feet on the westerly side of lot 4. Casey states in his petition that he elected to take the latter, but charges that the defendants cannot make a conveyance to said part of lot 4. The defend- ants admit that Casey elected to take part of lot 4 in- stead of the west half of lot 8, but aver a settlement and payment of $18.62, which was in full of all demands when defendants should make the plaintiff a good and sufficient warrantee deed of conveyance to said part of lot 4. The defendants, therefore, in their plea admit the con- 304 SUPREME COURT CASES, Fitch V. Casey. tract, admit tlie right of plaintiff to choose which piece of ground he would take in paj^ment, admit the selection of part of lot 4, and admit that they were to make to plaintiff a good and sufficient warrantee deed of convey- ance to said part of lot, and aver that they have a good title to said lot, and that' they are willing to make the conversance. The case being thus narrowed down by the state of the pleadings, it is unnecessary to discuss those questions raised in the argument as to the rights and duties of parties when contracts are in the alternative. The pleadings and evidence raise but two questions. First, Does the testimony show that the deceased in his lifetime was seized of a good, title to said part of lot 4, and coukl the defendants as his representatives be empowered to convey the fee in said lot to the plaintiff? Second, Would it have been a sufficient discharge of the contract for the defendants with a defective title to have made a deed good in form ; and would i\\Q plaintiff have been obliged to accept such deed when, by the admission of the defendants, they were to make a good and sufficient warrantee deed of con- veyance ? First, As to the nature of the defendants' title and. their power to make a deed. The entire lot is sixty feet front, and one hundred and forty feet deep. The plaintiff was to have twenty-four feet on the westerly side. The de- fendants had a tax collector's deed for the west two-fifths of said lot, but it appeared that but the west one-fifth was assessed, although the collector had returned the west two- fifths as delinquent. The west one-third was advertised as required by law, and the west two-llfths sold. Under this sale and by virtue of the collector's deed, the defend- ants claim a valid and subsisting title to the west one- fifth of said lot, the title to the other one-fifth next there- to being indisputable. These variances we think sufficient to vitiate the entire sale and defeat the collector's deed. In the assessment of property for taxes, and from thence IOWA CITY, JUNE, 1849. 305 Fitch V. Casey. througli each progressive step up to the sale and deed, the officers should be held to a strict and technical compliance with the requirements of the statute. The doctrine of presumptions cannot apply in relief of their mistakes, or to avoid the effect of their omissions. All of the proceedings must be in conformity with the statute, and they may be introduced in evidence to show a want of such conformity and to defeat a collector's deed, which is but prima facie evidence that the statute has been complied with. The deed as evidence of title is sub- ject to all the legal objections which may exist, to every material step in the proceedings antecedent to its execution and delivery. If no such objections exist, it conveys a good title ; if they do exist, no title passes. In this case, these objections are of a serious character, and the evi- dence shows a manifest violation of some of the most im- portant provisions of the statute. Two-fifths of the lot were sold and a deed made, when but one-fifth was assessed for taxes. The officer sold one -fifth, on which no tax was levied, and therefore on it no tax incumbrance existed. The west one-third only was advertised, and yet the west two-fifths were sold. A portion of the lot was sold without the previous notice requu-ed by the statute having been given. These discrepancies and omissions are fatal to the validity of the sale, and hence no title passed to the purchaser. The representative consequently could not make a good and sufficient deed of conveyance to one- fifth of the lot in controversy, and as the defendants had no title, it would be impossible in a suit for specific per- formance to compel a conveyance. We come now to the second proposition. Although the defendants had not a good title to all of the part of said lot, would a deed, good in form, purporting to convey a fee-simple, satisfy the contract, leaving the plaintiff to resort to the covenants in the event of a failure ©f title? If A covenants to make B a good and sufficient deed to a piece of land, B is not obliged to take such deed unless A has a good and indefeasible estate in the land 306 SUPREME COURT CASES, Fitch V. Casey. covenanted to be conveyed. The contract cannot be dis- charged by a tender of a deed in the usual form, puri3orting to alien the fee, unless the title is perfect in A, and the land free from all incumbrances. Clark v. Redman^ 1 Blackf., 379; Juchony. Wa8s, 11 John, 525; Tucker v. ^Yoods^ 12 ib.^ 190; Ruhh v. Montgomery^ 20 ih.^ 15; Lam-ence v. Parker, 1 Mass., 190. In the case of Judson v. Wass, it was held that as giving the deed, bond and mortgage, were to be simultaneous acts, that as the plaintiff was not in a situation to convey a title, the defendant was not bound to perform the agree- ment on his part; that the meaning of the agreement was not merely that the plaintiff should give a deed with war- rantee, but that he was able to convey an indefeasible title, and that if the vendee had, according to the terms of the sale, paid part of the consideration money, and the vendor was unable to convey a good title, the vendee might disaffirm the contract, and recover back the money which he had paid. And in the case of Jackson v. Hasbrouck, it was held that as the proof showed that the property to be conveyed by the plaintiff to the defendant was under lease which would not expire until long after the bargain between the parties was to have been consummated, that it came clearly within the principles decided in the case of Judson V. Wass. But these and similar decisions, it will be found on examination, were made in those cases where the acts to be performed by the parties were simultaneous ; or in other words, where the promises were dependent. Therefore, when the covenants are dependent, the con- veyance of the land and the payment of the money must be simultaneous, and there must be an existing capacity to convey at the time in the person who is to execute the conveyance ; but where the covenants are independent^ and the payment of the money is to precede the convey- ance, it is no excuse for the non-payment of it that the other party has not a pre-existing capacity to convey a good tiHe, unless the Ynv\x whose duty it is to pay the TOWA CITY, JUNE, 1849. 307 Fitch V. Casey. money offers to do so on receiving a good title, and then the other party must give him a good title, or the contract •svill be rescinded. Eodd v. Moiitgomery^ above referred to; Champion v. Wldte^ 5 Cow., 509; Green v. Green, 9 CoAv., A(S ; see also on the subject Caswell v. Manufactur- W(j Co., 14 John, 453. In the case under consideration, if the contract had been that the defendant was to have made a good and sufficient title to the plaintiff to the part of said lot, upon the payment by said plaintiff of $150, the pay- ment and conveyance would have been simultaneous acts, or mutual and dependent, and the plaintiff would not have been compelled to pay the money unless the defendants could have made, at the time of payment, a good and indefeasible title ; and in the event of payment, unless such title could have been made, the plaintiff could have rescinded the contract, and recovered back the money so paid. So if payment was to have been made in work for a piece of land for which the defendants had no title, (which fact being unknown to the plaintiff,) and the defendants had contracted to make a good title on the performance of the work, the plaintiff would be at liberty to rescind the contract, and not obliged to do the work ; and in the event of having performed the work, he would be as much entitled to recover the value thereof as he would have been to recover back the amount paid on a money contract. If the plaintiff" had become satisfied before doing the work that Fitch had not a good title to said part of said lot, he could have disaffirmed the contract ; and in a suit against him upon the contract, it would have been a good defence to have shown a want of capacity in Fitch to convey. The plaintiff has not sur- rendered any of his rights by performing on his part the contract. As the plaintiff was under no legal obligation to per- form the work, neither is he required to receive in satis- fjiction thereof a defective title. That which in the first ]ilnce wns not a sufficient consideration to hold Casey to 308 SUPREME COURT CASES, The State v. Chambers. an observance of the contract, certainly should not he regarded as a sufficient payment after the contract is performed. If there was any evidence that Casey was to receive only such a title as Fitch possessed, an entirely different case wonld be presented. But the defendants admit plaintiff's right to a good and sufficient warrantee deed. Such a deed is not only one good in form, with the usual covenants, but one which conveys a clear indefea- sible title, and anything less than this is not a good and sufficient warrantee deed ; and when parties contract for such a deed, it must not only contain all the necessary covenants, but the grantor must possess full capacity to make it. We have shown that the title in the defendant to a portion of the lot was not good, and hence such a deed as the plaintiff was entitled to could not be made by the defendants. The contract was mutual and dependent, Casey to do the work and defendants to make the deed, and therefore in such case, according to the decisions, Casey is not bound to accept of a defective title, but may sue and recover for his work and labour, which he did in the court below. Judgment affirmed. J, Scott Richman, for plaintiffs in error. Wm. G. Woodwardj for defendant. ->•»♦ < THE STATE v. CHAMBERS. Under the statute, the word " larceny " designates grand larceny, as contra- distinguished from petit larceny. An indictment upon a statute should state, substantially, if not in the very language of the law, all the circumstances which constitute the definition of the ofience in the act. An indictment is good which follows the words of the statute on which it is founded. IOWA CITY, JUNE, 1849. 309 The State v. Chambers. The section of the statute in rehition to petit larceny regulates t aat offence without reference to the preceding sections. The word "steal" has a uniform signification, and means felonious taking and carrying away the personal goods of another. Error to Linn District Court, Opinion by Greene, J. Au indictment was found against the defendant, and on motion quashed, on the ground that no indictable offence is charged therein. The indictment contains two counts, and is commenced in the usual form, and charges that William H. Chambers, at the time and place specified, " one box of percussion caps of the value of 25 cents, of the personal property of one Joshua Glover, then and there being found, did steal, contrary to the form of the statute in such case made and provided," &c. In the second count, Alexander Glover is named as the person from whom the percussion caps were stolen, and differs from the first count only in that one particular. The only question involved in the case is, Did the court err in quashing the indictment? The objection taken to the indictment is, that the charge is too general, and does not set forth all the ingredients of the offence, upon which proof should be required. The offence of larceny and petit larceny is defined by statute. Rev. Stat., 173, § § 40, 41. These sections de- scribe the offence of larceny ; and § 42 declares that if the property stolen is "of the value of $25 and upwards, it should be deemed larceny." The forty-third section regu- lates the measure of value upon certain articles stolen, and § 44 pro\'ides, that " every person duly convicted of larceny shall be imprisoned in the penitentiary," &c. By these sections, it is clear that the legislature recognized and applied the term " larceny'''' as meaning grand Uirceuy in contradistinction to petit larceny. To that sense the application of those sections appears to be exclusively con- fined. Had the indictment in this case been for larceny as limited by statute, instead of netit larceny, it should 310 SUPREME COURT CASES, The State v. Chambers. have pursued substantially that language of the statute which is descriptive of the offence. It is well settled that an indictment upon a statute must state substantially, at least, if not in the very language of the law, all the cir- cumstances which constitute the definition of the offence, as defined in the act. But the indictment in tliis case is founded upon the forty-fifth section of the act referred to, which provides that, " if any person shall steal from any other person or persons, or from any dwelling-house, or from any water- craft or other place whatsoever, any moneys, goods, wares or merchandize, or other personal property or thing what- soever, of a less value than $25, every person so offending shall be deemed guilty of a petit larceny, and upon con- viction thereof, shall restore to the owner or owners the thing or things so stolen, and be fined in any amount not exceeding five times the amount of the value thereof, and be imprisoned in the jail of the county not exceeding thirty days, and until the fine and costs are paid, if the same shall be paid within twenty days from the expiration of said imprisonment." This section of itself, it will be seen, completely regulates the offence of petit larceny, without any reference to the preceding sections, either by language or implication. The rule of adjudging the value of stolen bank notes, bonds, bills, and the like, as prescribed in § 43, may properly be recognized as alike applicable to cases of larceny and petit larceny. But § § 40, 41,42, and 44, above referred to, we regard as exclusively pertaining to the offence of larceny, as therein defined. Thus viewing the application of these sections, it only remains for us to test the indictment in this case, under the specifications of § 45, which determines the offence of petit larceny. It is now a prevailing rule, that an indictment is good which follows the words of the statute upon which it is framed. And many of the authorities go so far as to hold that it is sufficient if the words used in an indictment are equivalent to those of the statute, or of the same substance to a reasonable intendment. State v. Bougher^ 3 Blackf., IOWA CITY, JUNE, 1849. 311 Parker v. Lewis. 307 ; U. States v. Wilson, 1 Bald., 78 ; United States v. Lancaster^ 2 McLean, 431 ; State v. Duncan, 9 Porter, 260 ; State v. Helm, 6 Miss., 263 ; Chambers v. The People, 4 Scam., 351 ; The State v. Noel, 5 Blackf., 548. The present indictment conforms to the rule recognized in the foregoing cases ; it describes the offence in the very language of the statute, and hence we can but regard it as sufficient. We think the indictable offence clearly and specifically charged ; its character cannot be mistaken, nor the defend- ant misled in the crime preferred against him. The Mord ^' steaV has a uniform signification, and in common as "well as in legal parlance, means the felonious taking and carrying away of the personal goods of another. Judgment reversed. William Smyth, for the state. /. M, Preston, for defendant in error. PARKER V. LEWIS. P., in speatingof L., said, " He is a thief, he stole my wheat and gronnd H and sold the flour to the Indians ; " held that these words are per «e action- able in slander. Words actionable in slander by implication of law are to be considered as false and malicious, unless the contrary is made to appear by the evidence. In slander, when the words spoken are actionable per «e, special damages need not be alleged or proved. Error to Benton District Court. Opinion by Williams, C. J. The plaintiff Lewis com- menced his action on the case for slander, against the de- 31.2 SUPREME COURT CASES, Parker v. Lewis. fendant Parker, at September term, 1848, of tlie district com-t of Benton county. The declaration is in the usual form, and charges that the defendant "falsely and mali- ciously spoke and published, of and concerning the plain- tiff, defamatory words charging him with the crime of larceny." The plea of the defendant is, Not guilty. The jury rendered a verdict for the plaintiff for the sum of $300. Defendant's counsel moved to set aside the verdict, and for a new trial, for the reasons : 1. That the verdict is contrary to the evidence and charge of the court, and should have been for the defendant. 2. Because the damages are excessive. This motion was overruled. To this ruling defendant, by his counsel, excepted. The error assigned is, ''that the court below erred in overruling the motion of defendant for a new trial, and in entering judgment on the verdict of the jury." The testimony of all the witnesses in the case is set forth in the bill of exceptions. The allegations of the de- claration, as contained in the several counts, are substan- tially sustained and established by proof. The evidence shows that the plaintiff Lewis owned a mill; that he carried on the business of a miller in Benton county ; that the defendant Parker had taken wheat to the plaintiff's mill to be ground into flour • that a part of the wheat had been ground and tolled, according to the custom of the mill ; that a part remained to be ground, when a company of Indians came to the mill to procure flour ; that Lewis the plaintiff left off grinding the wheat of Parker, for the purp(>se of supplying the wants of the Indians. In this state of things, Parker arrived at the mill, to receive the proceeds of the wheat. Finding that only a part of his wheat had been ground, he was displeased, and expressed his dissatisfaction in harsh terms ; and among other ex- pressions he charged Lewis with stealing his wheat to supply the Indians with flour. He at once demanded, and received the flour which had been made and tolled, together with the residue of the unground wheat, IOWA CITY, JUNE, 1849. 313 Parker v. Lewis. and departed. Several witnesses proved that Parker, at different times and places afterwards in Benton county, had said and j^nLlished that " old Lewis was a thief, and had stolen his wdieat, and ground it, and sold it to the Indians." To some of the witnesses he stated that " he had employed a lawyer to prosecute Lewis for it," It ap2-)eared that a part of the testimony was of words, spoken more tiian one year before the commencement of the action. This, on motion of defendant's counsel, was ruled out by the court, and the jury instructed not to con- sider it in making up their verdict. It was contended by defendant's counsel, on the trial below, and in this court, that the words proven only involved a charge of fraud or misconduct on the part of Lewis, in his business of a miller ; which might be suffi- cient to maintain an action for special damages, as affect- ing him injuriously in his business of milling. That the words spoken could not be construed legally so as to import a charge of larceny. We think differently. The words, as laid and proved, are actionable in themselves. They d'otinctly charge upon the plaintiff the crime of lar- ceny ; and the defendant's intention to prosecute him for it. The witnesses all testify of the words, as spoken by the defendant, without any explanatory or qualifying statements of the transaction upon which he founded the charge, which would tend to prevent those to whom he addressed himself from coming to the conclusion that he accused Lewis of being guilty of larceny. The fact that the plaintiff was a miller at the time, and that the wheat was alleged- to have been stolen by him, at his mill, for the purpose charged, does not necessarily in law preclude the possibility of a commission of the crime of larceny. The wheat might have been taken by the defendant to the plaintiff's mill, and before delivered into his posses- sion as miller, have, been stolen from the possession oi defendant. But cases may and do occur, in which persons, by falsehood and fraud, acquire possession of property, with the consent of the owner, who is ignorant of that Vol. IL 21 314 SUPREME COURT CASES, Parker v. Lewis. intent. In such case, if the evidence establishes satisfac- torily that the felonious intent existed in the mind of the person, and that he only resorted to the means of acquir- ing possession of the property to carry that design into execution, by appropriating it to his own use, he would be legally chargeable with the crime of larceny. Such " tak- ing and carrying away the i)ersonal goods of another " is as much larcen}^ as that where the possession is acquired without the knowledge and consent of the owner. The qtw animo is the gist of the offence. Tliat must be estab- lished clearly. This done, it is enough in law. If it were otherwise, the cunning and learned in thiefcraft would leave those of their fraternity who might be less adroit than themselves to suffer the ignominious punishment of larceny, whilst they, no less guilty, would be merely put to the exercise of their peculiar tact in business, to litigate with the persons whose rights they had assailed in a civil proceeding at law. The charge of larceny, as proved, is general in its term. It is made so as to stamp the char- acter of the plaintiff as that of a thief in the community. The words spoken being actionable, by implication of law, they are to be considered as false and malicious, un- less the contrary is made to appear by the evidence. No such evidence was adduced. Byrket v. Morokon, 7 Blackf., 82; Yeates v. Reed^ 4 ib., 4G3; Roberts v. Camden, 9 East., 93. It often occurs that they who design to slander avoid direct and affirmative charges of crime, or pretend to make some qualification of the words spoken, so as to per- petrate the injury, and at the same time escape the legal consequence. This, however, will not avail, if the words are calculated, as spoken, to induce the hearers to susjject that the plaintiff is guilty of the crime. In such case an action will be maintained. Starkie on Slander, 58; Drum- mond V. Leslie, 5 Blackf., 453. It has also been decided, that " words not actionable in themselves, may express a criminal charge, by reason of their allusion to some extrinsic ffict, (ir in cousoqiieiice of being used and understood in a IOWA CITY, JUNE, 1849. 315 Parker v. Lewis. l)articular sense, different from their natural meaning, and thiis become actionable." Ha^/s ^ wife v. Mitchell ^ 7vife, 7 Blackf., 117. This accords with the spirit of the law, which, when duly enforced, is designed to establish the right, and afford adequate redress for the wrong. In cases like this, the defendant, to avail himself of the defence here attempted, should be able to show, on proof, that explanatory words were used, or that the subject matter in allusion to which the words were spoken, was clearly such as to show they were not actionable. Bac. Abr. Title, Slander R ; Beckett v. Sterrett, 4 Blackf., 501. In this last cited case the parties w^ere partners in the busi- ness of merchandizing. When settliug up the concern, Beckett said to Sterrett, " You pilfered money out of the store." The judge who delivered the oj)inion of the com-t says, " There were no words referring to partnership money in the custody of the plaintiff, nor that the money of the partnership was the subject matter in reference to which the words were spoken, and being unexplained by the speaker, we will not search for reasons to rebut the pre- sumption that he intended to charge the plaintiff with a felouy. In cases like this, where by the defence the ques- tion is raised as to the words, whether they impute a felony, it is proper for the jury to decide it." It was also contended by the counsel for defendant, that in this case the plaintiff should have been held to the allegation and proof of sjoecial damages. We have decided that the words as laid, and proved to have been spoken, are actionable. Where such is the case, special damages need not be alleged, or proved. We think that the damages are not excessive. We find uo error in the refusal of the district court to set aside the verdict and grant a new trial. Judgment afiSrmed, J, P. Cook and Wm. Smytky for plaintiff, /. M. Preston, for defendant. 316 SUPREME COURT CASES, Mears v. Garretson. MEAKS V. GARRETSOK Where a party sues out a writ of error coram nobis, but does not give the notice as required by statute, the judgment ma}' be affirmed. Errors will not be favorably regarded which are based upon the negligence of the party assigning them. Where a party hied a motion in the district court, to affirm, for want of notice, but before the motion was decided filed a demurrer, it will not be considered an appearance or waiver of notice. Error to Linn District Court. Opinion hj Kinney, J. In this case judgment was ren- dered in the district court of Linn county, against the plaintiff in error, upon which he sued out a writ of error coram nobis. In the district court a motion was made to dismiss the writ and affirm the judgment, for the reason that no notice had been given to the adverse party of suing out the same. This motion was sustained by the court, and the judgment affirmed with ten per cent, damages. This decision of the, district court is assigned for error. The statute allowing the writ of error coram nobis, pro- vides that the party suing out such a writ shall cause notice in writing to be served upon the adverse party or his attorney ten days before the next succeeding term of the court, and if ten days shall have elapsed from the time of serving such notice and the fij'st day of said term, the court shall proceed to try and determine said cause, whether the defendant appear or not. If ten days do not intervene, the cause shall be continued, &c. Laws of 1846, p. 51, §3. ^ The question presented in this ease, is one arising upon a construction of this statute. It is insisted by the attor- ney for the defendant in error, that the com-t, by virtue of its power under the statute, (to adopt such rules as were necessary to govern proceedings of this kind,) had a right under those rules to affirm the judgment when the notice required had not been given. The statute does not appear IOWA CITY, JUNE, 18-19. 317 Mears v. Gurretsoii. to contemplate an entire absence of notice, and conse- quently there is not any provision made for a proceed- ing- wliere notice has not been given, and we are led to inquire whether by legal intendment the court properly exercised a power which is not expressly conferred by statute. The legislatm-e authorized the issuing of this writ for the purpose of correcting errors in fact, and defined the powers and duties of the court while sitting as a court upon its own alleged errors. The statute 2:)rovides for the hearing and determining of the cause upon notice given, but we cannot think that it ever was the intention of the legislature that, upon default of the party to give notice, the com-t would have less power to render judgment than if notice had been given. If this were the case, the party in default could take advantage of his own laches, and as the power to affirm would depend upon giving notice, a party wishing to avoid the collection of a judgment might sue out his writ, fail to give the notice, avoid the affirm- ance of the judgment, and in this manner escape the collection of judgments in the district court. But it may be said that the writ would be dismissed for the want of notice. This would not remedy the evil, as the party being then restored to his original position, could sue out •a second writ of error, and as a penalty in dameges could only follow an affirmance of the judgment, it is not im- probable that a statute which is only remedial in its char- acter might be made an engine of oppression. " Although the s<"atute does not expressly authorize the court to render judgment, in case notice has not been given, yet we are not disposed by a forced and unnatural adherence to the letter of the statute, to give it an effect so subversive of justice and the rights of judgment creditors. It is a well settled practice to give remedial statutes a liberal con- struction, and we are not inclined to depart from that rule, particularly in cases where injustice would be the result of such departure. Courts are not disposed to regard very favorably errors which are based upon the negligence of the party assign- 318 SUPREME COURT CASES, Brown V. Holleubeck. ing them, whereby he seeks to reverse a judgment upon the ground that he was in default. In this case the party virtually says, upon the motion to affirm for the want of notice, that if he had given the notice required of him by statute, the court would have had power to affirm the judgment, but as he failed to do that, the court cannot affirm, and the action of the court predicated upon the fact that the fjarty did not give notice, is assigned in this court for error by the party in default. We think upon this assio'nment that the court did not err. The second error alleged is, that the defendant in error filed a demurrer, and therefore there was an ajjpearance ; and he could not object to the proceeding for the want of notice. From the record it appears that the first step taken by the defendant below was to file a motion to affirm. Before that motion was disposed of, he filed a demurrer. The object of filing the demurrer undoubtedly was to be prepared in the event of the motion being decided against him, and as that motion appears to have been the one relied upon, and as it was entitled to and received precedence, we cannot think his rights under the motion were waived or prejudiced by his filing a demmrer. As we see no error in the ruling of the court, the judg- ment is therefore affirmed. Judgment affirmed. N. W. Isbell and Wm. Smyth, for plaintiff in error* /. M. PrestoUy for defendant. BROWN V. HOLLENBECK. It is error to render a judgment by default if a plea is on file in the ease. After a plea is filed the issue should be tried. IOWA CITY, JUNE, 1849. 319 Brown v. Holleubeck. Error to Linn District Court. Opinion hy Greene, J. In the court below judgment was rendered against Brown by default. But it appears that on the day previous, and within the time required by rules of court, a plea had been filed. The practice is too well settled to admit of doubt, that judgment by default cannot be entered if a plea in bar is on file in the case. Davis v. Brady ^ Morris, 101 ; Elliott V. Leak^ 4 Mis., 540; Conell v. Marks, 1 Scam., 391; Manlow v. Beuner, ib. ; Harris v. Muskingum Man. Co.^ 4 Blackf., 267; Maddox v. Pulliam, 5 Blackf., 205. The decisions are uniformly to the effect, that after a plea is filed in a case, the issue should be tried by a jury, even if the defendant does not answer on being called. As counsel, in order to delay the collection of a debt, by securing a reversal of the judgment, may file their plea in a silent manner without notice to the opposing counsel or the court, and then withdraw or otherwise intimate that they have no defence, the district judges should invariably inquire whether there is a plea on file before suffei'ing a judgment by default to be entered. In this case the plaintiff below appears by the record to have had a just claim against the defendant, but still the judgment must be reversed, rather than depart from a salutary and well settled rule of practice. Judgment reversed. ilT. W, Isbell, for plaintiff in error. /. M, FrestoUy for defendant. 320 SUPREME COURT CASES, Chambers v. Games. CHAMBERS v. GAMES. In an action of debt on a note under seal, the plea of non est factum is admissible; Imt, as it puts in issue the execution of the note, it should, under tlie statute, be verified by affidavit. Evidence of fraud, covin, or illegality of consideration, is not allowable as defence under the plea of non est factum,. It is not sufficient notice of special matter in defence of an action under the statute, to state "that the note had been given for a claim of public land, belonging to the government of the United States, on which there was no improvement ; or that there was no consideration for the note ; or that the consideration had wholly failed." The notice should specially point the particular matter relied upon in defence of the action. Proof of a set-off may be excluded unless defendant has filed with his plea the particular items of his demand. An item in an account, designated as a "cash balance on settlement, $50," is sufficiently specific. Error to Linn District Court. Opinion by Williams, C. J. George W. Games insti- tuted his action of debt on a sealed instrument for $150, and laid his damages at $50, &c. The note bears date November 11, 1836, payable on or before the 1st day of May thereafter, with a credit of $15.62-|- indorsed thereon. To tlie declaration of the plaintiff, the defendant filed his plea of nil debit with notice, &c. , to which the plaintiff demurred. The demurrer was sustained. The defendant was allowed to plead over. He then filed his plea of non est factum, together with the notice " that the de- fendant will offer in evidence, and prove on the trial of the above cause, that said note upon which the above suit is brought was given by the said defendant to the said plaintiff for a claim of public land belonging to the government of the United States ; and that there was no improvement on said claim." 2. " That there was no con- sideration for the giving .up of the said note." 3. " That the consideration for the giving of said note has wholly failed." And the said plaintiff will also take notice that IOWA CITY, JUNE, 1849. 321 Chambers v. Games. the said defendant will, on the trial of the above cause, offer and prove the following items of set-off against the demand of the said plaintiff, viz : George W. Games, To James Chambers, Dr, 1837. To one lot of cloth, commonly called Kentucky Jeans, of the value of . , , |20 „ One claim .... 50 ,, Fence, rails, and breaking prairie • ,60 „ Work and labor ... 12 „ Cash balance on settlement . . , 50 The issue being joined, the cause was tried by a jury, and a verdict rendered for the plaintiff, for $61.9, and judgment thereon entered. It appears that, on the trial, the plaintiff having read the note in evidence to the jury, rested. The defendant then offered to prove that the note was given for a claim on the public land of the United States, upon which there was then no improvement. Objection to this evidence, under the first and third notice, was made by the plaintiff, for the reason that these notices were too indefinite. The objection was sustained by the court, to which ruling defendant excepted. The defendant then offered the same evidence under the second notice, to which plaintiff objected, for the reason that the notice was of want of consideration, and the matter offered was oi failure of consideration. The objection was overruled, and the witness allowed to testify. The evidence being heard, was ruled out as inadmissible, on the second point of notice. The defendant then proceeded to give evidence under the notice of set-off. On motion by plaintiff's counsel, this was also excluded, on the ground that the notice was in- sufficient as to the specification of the matter of set-off. Defendant excepts to this ruling of the court, as follows : 1. The court erred in refusing to admit the evidence offered bv the defendant below. 822 SUPEEME COURT CASES, Chambers v. Games. 1 2. By ruling from the jury the evidence given by the witness William Chambers, as contained in the bill of ex- ceptions. 3. By refusing to allow evidence of set-off, as offered by defendant below. 4. By sustaining the motion of the plaintiff below, to reject the notice attached to the plea of defendant below. The plea of 9?on est /actum puts in issue the execution of the note, and is properly pleadable in this action, being a specialty, and constituting the foundation of the suit. However, to render it effectual in putting the plaintiff to the proof of the execution of the note, it was necessary that the defendant should verify the plea by his oath. This is requD^ed by the statute. Rev. Stat., 471, § 12, pro- vides, '• But no person shall be permitted to deny on trial the execution of any instrument in writing, whether sealed or not, uj^on which any action may have been brought, or which shall be stt up by way of defence or set-off, un- less the person so denying the same shall file his or her affidavit, denying the execution of such instnmient." In this case the plea was filed without the affidavit. We will not discuss the validity of the plea, as pleaded, there hav- ing been no motion made to set it aside, and as it was treated as the general issue by the parties, under which the defendant gave notice of the matter on which he in- tended to rely for defence on the trial. By going to trial on it the plaintifi' accepted it. M^er v. McLean^ 1 John., 509. We will add here, that at common law such facts only can be given in evidence, under the plea of non est factum, as will go to show that the defendant did not execute the writing obligatory ; such defence as relates to the consideration or inducements which influenced the obligor to make it cannot be made under it. If fraud, covin, false representation, illegality of consideration, or the like matters which assail the contract itself, aj^art from the execution of the instrument, constitute the defence, they should be pleaded specially ; or when jirovided for by statute, as therein i)i'escribed, such defence is not allow- IOWA CITY, JUNE, 1849. 323 Chambers v. Gaines. able under a general plea of non est factum. Any fact whicli will go to show that the defendant never, in the eye of the law, executed the writing obligatory, may be given in evidence under this plea. Hughes v. Williams, 3 Blackf, 170; V'rooman v. Phel])S, 2 John., 177; Dorr v. Munsell, 13 John., 439 ; Dale v. Rosevelt, 9 Cow., 307. The ruling of the district court, in rejecting the evidence offered by the defendant under the plea of non est factum, was cor- rect. There is none of it w^hich relates to the execution of the instrument, but to the consideration of the contract only. AVe will now proceed to the question arising upon the matter of notice, on which the defendant relied for defence to the action. After pleading non est factum^ the defendant, instead of pleading specially, availed himself of the statutory pro- vision, which is as follows : " The defendant may, in his defence, plead specially, or may plead the general issue, and give notice in Avritiug under the same, of the special matters intended to be relied on for a defence on the trial, under which notice, if adjudged by the court to- be suffi- ciently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded, and issue taken thereon." Rev. Stat., 470, § 12. This enactment provides for, and allows a departure from, the common law practice of plead- ing, and must be substantially complied with. We have abeady shown, by the rules of common law pleading, the evidence of Chambers, as it relates altogether to the con- sideration of the contract, and not to the execution of the instrument, was properly ruled out, as inadmissible under the general plea of non est factum. We will now examine and see whether it should have been admitted under the notices. The defendant was under the necessity of plead- ing specially as at common law ; or, it was his privilege to avail himself of the sttitutory provision, and give notice in writing of the special matter intended to be relied on for a defence on the trial. He chose to avail himself 324 SUPREME COURT CASES, Chambers v. Games. of the latter. Is tlie notice sucli as is' contemplated by the statute ? We think not. It is too general in its character. The statute requires " notice in writing 0/ tlie special matters^'' &c. The simple statement, " that the note had been given for a claim of public land belonging to the government of the United State.;, on which there was no improvement, that there was no consideration for said note, that the consideration for said note had wholly failed," gave to the plaintiff no information of the special matter^ the facts intended to be relied on for a defence on the trial. It is not every contract for the sale of a claim of the public land of the United States, on which there is no improvement, that is necessarily void for want of con- sideration, fraud, &c. It is one thing to inform the plaintiff that the pleas of no consideration and failure of consideration will be pleaded as a defence to the action, and quite another thing to give him notice of the special matter that will be relied on. In permitting a party to an action to lay aside the common law form of pleading, and to choose a more simple and convenient mode of pre- senting his case, the legislature certainly did not intend to dispense with the substance. The object of the pica is to apprise the plaintiff of the matter of defence to his action, in order that in answer to his declaration, a proper issue may be formed for trial upon the law and facts in- volved. The ma':;aial facts, the special matter constituting the plea, should be set forth in the notice, so as to inform the plaintiff of the substance of the defence, that he may have an opportunity to meet them, and if he can, to con- tradict them. This was the manifest intention of the legislature, and justice and reason dictate its propriety. The notice given in this case, as to the consideration of the writing obligatory, is general, not special of the matter relied on for a defence to the action. The court therefore ruled correctly as to this point in relation to the con- sideration. Brazee et al. v. Blake et al., 5 Ohio, 211; Rc'/nolds et al. v. Bogcrs, ib., 104 ; Shepard\. Merrill^ 13 John,, 475; Black v. Ilarriiigton, 4 Vt., 69. IOWA CITY, JUNE, 1849. 325 Chambers v. Gaines. The next and last question is as to the notice of set-off and bill of particulars therewith filed for allowance against the demand of the plaintiff. The statute provides, " that the defendant or defendants in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff in such actions, may plead the same or give notice thereof under the general issue, as is provided in the twelfth section of this act, and the same or such part thereof as the defendant shall prove on trial shall be set- ojf and allowed against the plaintiff's demand, and a ver- dict shall be given for the balance due." Rev. Stat., 472, § 17. By this section the defendant is permitted to set- off any demands which he may have against the plaintiff. The tenth section provides, that "^ it shall be the duty of the defendant or defendants in all cases where he, she, or they intend to prove on trial any accounts or demands against the plaintiff or plaintiffs, to file with his jjlea a bill of the particular items of such accounts or demands, and no other accounts or demands shall be suffered to be proved to the jm*y or court on the trial." Rev. Stat., 470. Here are express provisions providing for demands of the defendant, and the manner in which they shall be set- off against those of the plaintiff. If presented under a notice, as in this case, it is to be done as is required, in rela- tion to the special matter, as provided for in the twelfth section above cited. This, as we have already decided on the other points, is, that the notice must be one in fact, setting forth the material points upon which the plea rests, and not merely the sum or conclusion of facts as deter- mined by the person pleading. So the defendant, intend- ing to prove any accounts or demands against the plain- tiff, must file with his plea a bill of the particular items of such account or demands, or he will not be allowed to prove them to the court and jury. The intention of the legislature is so clearly expressed here that it cannot be misapprehended. The particular items of the account or demand must be given in number and character, with 326 SUPREME COURT CASES, Viele V. Oi?ilvie & Co. the date as well as the sum, so that the plaintiff ma}^ have an opportunity of testing their truthfulness. The defend- ant in this case filed his set-off, accompanied by a bill of particulars, a considerable portion of which was objec- tionable, it is true ; but we think the court should have allowed the defendant to give proof to the jury of the last item, being cash balance on settlement $50. This, we think, as a particular item, is sufficiently specific to ap- prise the plaintiff of all that would be necessary to enable him to test its validity before the court and jury on the trial. Indeed if a settlement (as this purports to have a date subsequent to that of the note sued) had been made by the parties, and thereu23on a balance has been found due to the defendant, evidence of these facts, if it had been suffered to go to the jury, might have established a defence to the demand of the plaintiff. There is there- fore error in this ruling of the court. We have examined and decided the question presented in the argument of this case more at length than we should have done, had we not considered it important to settle the practice as to the matters involved. Judgment affirmed. .?V. W. Isbell and J. M. Preston, for plaintiff in error. W, G, Woodward and Wm. Simjth, for defendant. VIELE V. OGILVIE & CO. A mere indorsement of a payment on a note is not prima facie evidence of paj'ment, nor is it evidence of a new promise to revive a note barred by tlie statute of limitations, or discharged by a decree in bankruptcy, unless it is shown that the iudorsument was made by the defendant, or by hifl consent, or that he actually paid the amount indorsed. Error to Muscatine District Court. Opinion by Greene, J. An action of assumpsit by Ogilvie k Co. against Viele, on a promissory note dated IOWA CITY, JUNE, 1849. 327 Viele V. Ogilvie & Co. September 19, 1842. The note is for the payment of $78.35, with interest at 10 per ceDt. per annum, and contains an indorsement of seventy-one and forty-three sixtieth bushels wheat at 50 cents per bushel, amounting- to $35.8(5, which indorsement purports to have been made October 13, 1843. Plea, ffeneral issne and notice of a certificate in bank- ruptcy in discharge of indebted u^'ss, averring the decree to have been made on the 3d day of April, 1843. By consent of parties a jury was waived and the cause sub- mitted to the court, which found for the plaintiffs below, and rendered a judgment in their favor for $74.9. There- upon a motion was made by the defendant for a new trial, on the ground that the court rendered judgment under the mistaken apprehension that the discharge in bankruptcy took place before the note was given, which resulted from the mistake of a figure in one part of the record. This mistake was clearly shown by other portions of the record, and appears to have been conceded by the court, but the motion for a new trial was overruled on the ground that there had been a promise to pay the note since the defend- ant's discharge under the bankrupt law. We learn from the bill of exceptions that the only evidence before the court tending to ^how such subsequent promise was the indorsement of payment to which we have referred. Though there are three errors assigned in this case, there is properly but one question involved. Is a naked indorsement of payment on a note prima facie evidence of such payment, and sufficient to establish a new promise and renewal of a note ? If not, the court below did not exercise a sound legal discretion in overruling the appli- cation for a new trial. We consider it a well settled and salutary rule that a plaintiff cannot take advantage of an indorsement of a payment on a note as evidence of a new promise to revive a note barred by the statute of limita- tions or discharged by a decree in bankruptcy, unless he shows such indorsement to have been made by the de- fendant, or by his conseiit, or else by proof of payment of 328 SUPREME COURT CASES, Viele V. Ogilvie & Co. the amount indorsed. A mere naked indorsement, with- out some sucli evidence of its correctness, is not sufficient. See Concklin v. Pearson^ 1 Riclm., S. C, 391 ; McGeaee V. 6^r^6r, 7 Port., 537. Stut y. Mathews,! Yarg., 2,1?,. In Waterman v. Burbank, 8 Metcalf, 352, the plaintiff gave in evidence an indorsement of payment written by him- self, and dated within six years next before the suit was commenced, as follows : '' Received Cotton Mill order, in part, $16;" also an order of the same date drawn on the plaintiff in favor of the defendant by a third person for $22.38, and directing the plaintiff to charge the same to the Cotton Mill ; also an acknowledgment of the defendant written on the back of the order that he had "received the within as specified." It was held to be not a sufficient proof of payment. We think that at least as much certainty of proof should be required to revive a debt barred by a proceeding in bankruj)tcy as is required under a statute of limitations. By a parity of reasoning, then, the evidence in the present case was altogether inadequate to establish a payment on the note, or its resulting consequence a new promise, sub- sequent to the date of the certificate in bankruptcy. It was therefore error for the court below to refuse the applica- tion for a new trial, on the assumption that a subsequent promise resulted from an ex parte indorsement. It must be apparent that a rule giving effect to evidence which the holder of a note may at any time manufacture for himself, in order to evade a decree of bankruptcy or a statute of limitations, would be subject to great abuse, to a dangerous evasion of law, and a corrupting perversion of truth. Judgment reversed. WnL G. Woodward, for plaintiff in error. W, P. Clark and J. S, Richman, for defendant. CASES IN LAW AND EQUITY. DETERMINED IN THE SUPREME COURT OF THE STATE OF IOWA, DUBUQUE, JULY TERM, A.D. 1849. In ike Third Year of the Stale, ^rejSent : Hon. JOSEPH WILLIAMS, Chief Justice, Hon. GEORGE GREENE, Jvdge, GOODWIN" et al v. THOMPSON A father cannot recover damages against a person for procuring the marriage of his daughter, who in good faith and without force or imposition entered into a marriage contract when between twelve and fourteen years of age. The statute which provides that male persons of the age of eighteen years and female persons of the age of fourteen years may be joined in marriage, is merely cumulative, and does not abrogate the common rule, which fixes the age of marriage consent for males at fourteen and for females at twelve years of age. A rule of common law is not repealed by implication. The right of a husband over his wife is paramount to that of her parent. Error to Dubuque District Court. Opinion by Williams, C. J. Rufus Thompson insti- tuted his action for trespass on the case against Archibald Goodwin, John Gilson and Benjamin Alcorn, in the Vol. II. 22 .330 SUPREME COURT CASES, I Goodwill V. Thompson. district court of Dubuque county, to recover damag'es for enticing and procuring liis daughter Louisa Thompson to marry one Jetfcrsun Goodwin against his consent, thereby depriving him of his right to the control, guardianship, society and service of the said Louisa, she being his daughter and a minor. When the cause was called for trial in the district court the attorneys for the parties appeared. Whereupon the attorneys for the defendants filed their general demurrer to the first count in the plaintiff's declaration upon which issue was taken. The demurrer was overruled. The parties, by their attorneys, then filed of record in the case the following agreements : " It is agreed between the parties to this cause, that a marriage license was issued' by the clerk of the district court of Jackst)n county, to Jefferson Goodwin, in the month of ]\Iarch last, authorizing any legal officer to solemnize marriage between Jefferson Goodwin and Louisa Thompson, and that by virtue of said license, said parties were "married in Jackson county, in said month of March, by an acting justice of the peace in said county, and that this agreement is to stand in lieu of and be equivalent to a certified copy of the records of the clerk of the district court of Jackson county, of said marriage." "It is also agreed by the parties that this cause shall be continued to the next term of this court for trial on the merits ; that the cause, in the meantime, shall be tried in the supreme court on the demurrer to the first count in the declaration ; and that the issue is to be made up to all the counts within ten days after the session of the supreme court in July next. The costs to abide the final event of the suit. This agreement to be part of the record." These agreements were signed by the attorneys of the parties and are of record in the case. The only question for adjudication is presented by the defendants' general demurrer to the first count of the plaintiff's declaration. In this count the plaintiff complains " that the said DUBUQUE, JULY, 1849. 331 Goodwin v. Thompson. defendants, combining and confederating together, and contriving, &c., to injure and aggrieve the said plaintiff, and to deprive him of the service and assistance of one Louisa Thompson, the daughter and servant of the said plaintiff, and a minor under the age of fourteen years ; as also to deprive the said plaintiff of the companj', society, guardi;i:iship, education, nurture, control and service of his said daughter, heretofore, to wit : on the tenth day of February, in the year of our Lord one thousand eight hundred and forty-nine, and on divers days and times between that day and the filing of this declaration, at the county aforesaid, did unlawfully, wrongfully, unjustly, wickedly and fraudulently entice, persuade and procure the daughter nnd servant of the said plaintiff to depart from and out of the care, control, guardianship and service of him, the said plaintiff, and to marry one Jefferson Goodwin, to wit, at the county aforesaid." The declara- tion then proceeds to aver, that in consequence of the procurement and enticement aforesaid, the said Louisa, the daughter and servant of the plaintiff, departed from and left the house, care, guardianship and control of the lilaintiff aforesaid, and continued to the time of the com- mencement of this suit from his care, control, &c. Then follows the allegation, that the plaintiff has sustained great damage by reason of the loss of her society, service, expenditure of money and time in his endeavors to pro- cure her return, anxiety and trouble of mind, &c. All of which doings, he a^'ers, was without his knowledge or consent, and against his will. Damages are alleged to the amount of $200. The only question to be decided is this : Can a father maintain an action of trespass on the case, and recover damages for the loss of service, &c., against a person or persons for procuring the marriage of his daughter, who is a minor, when she has voluntarily and in good faith entered into the marriage contract without any allegation of force or imposition having been practised on her by her husband or the defendants, so far as the marriage . 332 SUPREME COURT CASES, Goodwin v. Thompson. is concerned, and wlien the marriage has been legally solemnized in good faith ? By the agreement of the parties of record in the case, it appears that the marriage was voluntarily contracted and solemnized in accordance with the law of the state, and it does not appear that there is any complaint on part of the parties to the marriage contract, the husband and wife. The action is simply at 'the instance of the father for damages alleged to have been sustained, for the loss of his daughter's service, society, &c. The legislature of this state have linacted, " that male persons of the age of eighteen years, and female persons of the age of fourteen years, not nearer of kin than first cousins, and not having a hnsband or wife living, may be joined in marriage. Provided always^ That male persons under twenty-one years, female persons under the age of eighteen years, shall first obtain the consent of their father respectively, or, in case of the death or incapacity of their fathers, then of their mothers or guardians." The statute also provides, that ministers of the gospel com- plying with its requisites, and justices of the peace, may solemnize the marriage contract ; and directs that a marriage license shall, before marriage, be issued by the clerks of the district court of the county wherein the ceremony shall be performed. The 11th section of the act imposes a forfeiture of $500 on any justice or minister who shall solemnize any marriage within the state, without a compliance with the statute, and also forbids any unauthorized person to solemnize the contract under the same penalty. By the common law marriage is held to be a c'_vil con- tract. To render the contract valid the parties must be willing and able to contract. The age of consent for a female has been fixed by the civil law at twelve years, and the male at fourteen. Under that law, if the parties were under the age prescribed, the marriage was only held to be inchoate and imperfect ; and when either of them arrived at the age of consent aforesaid, they might disagree and DUBUQUE, JULY, 1849. 333 Goodwin v. Tliompson. declare the marriage void. The canon law, however, had regard to the constitution more than the age of the parties, and therefore held, that if they were in that re- spect competent, the marriage was good, whatever the age might he. By the common law of England, it was held that if a marriage was solemnized between parties who had not arrived at the age of consent, still, when they arrived at that age, if they agreed to continue together as man and wife, they need not be married again. Black. Com., 436, 437. The same principles are recognized as being established by the common law by Chancellor Kent in his 2 Com- mentary, 78. Discussing the common law, as to the capacity of i)ersons to make the marriage contract, after fixing fourteen years for males ajid twelve years for females as the age of consent, he proceeds to say that " the law supposes that the parties at that age have sufficient dis- cretion for such contract, and they can then bind themselves irrevocably, and cannot be permitted to plead even their egregious indiscretion, whatever the result of it may be. Marriage before that age is voidable at the election of either party on arriving at the age of consent, if either of the parties be under age when the contract is made." Such being the common law in force within this state, it is clear that this marriage is not void, notwithstanding the statute. Statutes will not be construed to have an effect beyond that which is to be gathered from the plain and direct import of the terms used in declaring them. Effect by implication will not be given to them, so as to change a well established principle of common law. The act regulating marriages within this state merely declares what description of persons " may be joined in marriage," and what are the respective duties of ministers and justices of the peace, who are authorized thereby to solemnize the marriage contract. By it the solemnization of the contract by such minister or officer, without a com- pliance with its requisitions, is punishable by a penalty of |500. A due regard for the public morals and the 334 SUPREME COURT CASES, Goodwin v. Thdmpson. interest of the community, in view of the marital rights, duties and obligations, is recognized and inculcated. The sanction of religious and legal rights is enjoined to elevate this contract, so far as form is concerned in making it, above all others among men. Such a provision, by statute, whilst it designates the moral character of a community, operates as a preservative of the interests which are in- volved in one of the great relations which constitute the foundation of society. In this brief view of the common law, in relation to this subject, then, how does the case stand as affected by the statute? There is no prohibition of the marriage of a minor, who may be under fourteen years of age, expressed. The statute is merely cumulative in its operation, and can- not have the effect of repealing the common law, so as to render the contract void. Such has been the decision of this court, as well as the courts of last resort in nearly all the states of the Union, in declaring the effect of statutes similar to ours. Wycoff n. Boggs, 2 Halsted, 128; 2 N. H., 268; 3 Marshall, 370. We will now consider the case in view of the rights of the parent, the child and the interests of society, as exist- ing in this country. The parties to the contract being capable of making it, and it being valid in law, so as to secure the parties to it all their legal rights, and bind them to the observance of the obligations and duties involved, it clearly follows that the law holds the claims of the husbiand from the time of the marriage as paramount to those of the parent. The common law observes the divine injunction, that " forsak- iilg father and mother, the husband and wife shall cleave together, and that they twain shall be one flesh ;" in effect recognizing a great and holy domestic relation, essential to the well-being of our race and conservative of the par- amount interests of society and government. Thus the natural tendency of the human heart, under the control of divine and munici])al law, is made to operate as a blessing to man. instead of a curse. DUBUQUE, JULY, 1849. 335 Goodwin v. Thompson. But it is contended tliat the common laAv gives the parent the control, society and service of the child during the entire term of minority, whicli is until the age of twenty-one years. This, as a general principle, is true. Every general rule, liowever, has its exception. Exigency arising from circumstances beyond the control of human foresight sometimes requires the special interposition of rightful power, to aid the best general system in working harmoniously to the attainmetit of the most truthful result. In England, from wdience we derive our common law, many reasons, in view of the governmental organization there, exist for establishing a general system on this sub- ject, and determining its operation differently from that which necessarily must prevail here. Such is the law of descent of estates, primogeniture, &c., that their distinc- tive and controlling power operate directly upon the rela- tion of parent and child. These distinctions do not exist in this country. The domestic or private relations there- fore are to be so far held independent of them. In this country there is no legalized classification of the citizens, establishing castes in society. We have, and can have, no such thing, under the constitution of our country, as a legalized nobility, possessing privileges by law peculiar to themselves as citizens, and a common people whose con- dition is distinctly fixed by restraining laws. The pecu- liar institution of England, in this respect, must neces- sarily have operated with controlling effect in shaping the common law there. Nevertheless, from what we have already said, it is seen that even there, in the absence of special statutory provision, a marriage after the age of consent is held valid. The minor child, taken, by the obligations of the new relation established by the solem- nization of the marriage contract, from the control of the parent or natural guardian, is held to be amenable to the law of the land go\ erniug husband and wife. This being the case under the common law, it is clear that rights belonging to the parent must be interfered with by the observance of the duties of llie nuirital relation; so that 336 SUPREME COURT CASES, Goodwin V. Thompson. we see the incompatibility of both these relations existing at the same time without interception as to the same per- son, in respect of his claims and obligations. The wife cannot be held to " serve two masters," therefore the right of the husband must j^revail. By the common law, then, there is no difference be- tween the case of a minor twelve years old and one twenty years old, in effect as to the consequences of the contract. This being the common law, it can only be changed by statutory provision such as was resorted to there. By the statute 26 George II., ch. 33, it was enacted, "That all marriages celebrated by license, where either of the parties is under twenty-one, without the consent of the father, or if he be not living, of the mother or guardian, shall be absolutely void." This superseded the common law, but we have no such statute. The effect of this statute is dis- cussed by Sir William Blackstone; among other things he says, '•'• Much maybe said, and has been said, both for and against this innovation upon our ancient laws and constitution. On the one hand, it prevents the clandes- tine marriages of minors, which are often a terrible incon- venience to thoss private families wherever they happen. On the other hand, restraints upon marriages, especially among the lower class, are evidently detrimental to the public by hindering the increase of the people; and to religion and moralitv, bv encouraging licentiousness and debauchery among the single of both sexes, and thereby destroying one end of society and government." In this country the law of itself recognizes no higher and lower class. Its effect is intended to be uniform without respect to persons. If an action will lie on behalf of the parent for the pro- curement of the marriage of his daughter without doing violence to her rights, she being a minor, whether she be of the age of thirteen years or twenty, what would be the consequence ? Two-thirds, perhaps more, of the fe- males of our land have been, and most likely will be. DUBUQUE, JULY, 1849. 337 Goodwin v. Thompson. married before they arrive at the age of twenty-one years. Litigation for speculation might be resorted to; and a strong motive would be furnished to the parent to with- liold his consent. Long and well established usage pro- motive of the best interests of society would be disturbed by restraining marriage ; and the public interests would be materially injured, morally and politically. In this case it is not pretended that the daughter of the plaintiff was imposed upon by her husband or the defendants below ; that any force or fraud was used or practised by him or them upon her ; or that anything was done, mala Jlde^ of which she or the plaintiff complains ; but on the contrary, that the parties were married, in good faith, with her full consent. In this, the case at bar is distin- guished by plain marks from the case in Hill v. Holbart, 2 Root, page 48. In that case a gross fraud was practised upon the daughter ; she was seduced, and afterwards deceived into a marriage with a vagrant, who was hired to practise the imposition, in the garb of respectability, in order to prevent a cause of action at law. She was made the victim of outrage. There is no such allegation here. This case stands upon the complaint of the parent, on the ground of the loss of service. The books are, so far as we have been able to find them, barren of cases like this. Public opinion, as well as policy, co-operating with private interest and convenience, by long usage seems to have established the right of the husband to the society and service of the wife, though she be a minor, to the exclu- sion of that of the parent after marriage. Indeed, a nat- ural sense of justice, in the exercise of a mind uninfluenced by passion or caprice, would dictate the acquiescence of the parent, in the legitimate results of this contract, when legally consummated ; in which the dearest interests of his offspring are involved. We hold that parents should maintain and exercise a controlling-, advising: influence over their children, and such is their right in the forming of matrimonial alliance ; and that it is the duty of the child to abide by their counsel and requii-ement. 338 SUPREME COURT CASES, Shaw V. Livermore. But to render liable any or all persons who miglit, in the spirit of kindness, actuated by pure motives, be present at the marriage ceremony, or afford countenance to the child on an occasion of so much interest, would be in violation of right, propriety, and public interest. Upon a full con- sideration of the case, in view of the public and private interests and rights involved in the question presented, we are of the opinion, in the absence of fraud, imposition, or violence, affecting the rights of the child and thereby affecting the relative rights and duties of parents, that this action cannot be maintained, and that the court erred in overruling the demurrer. Judgment reversed, P. Smith, for plaintiffs in error. L, A, Thomas^ for defendant. SHAW V. LIVERMORE et al Where S. agreed to deed a lot to L., upon condition that he would make cer- tain improvements and live upon the lot, it was held that if L. performed the substantial conditions with ordinary diligence, he was entitled to a specific performance. Equity will extend relief, even if there has not been a strict legal compliance ■■ with the terms of the contract, if it can be done consistently with the essence of the agreement. Where one of the conditions upon which a deed should be made was, that the purchaser sheuld reside upon the lot, but the term of such residence was not designated, it was held that as the purchaser had complied with all the other conditions to secure title, and had resided upon the lot nearly two years before he left it, that such leaving would not be an abandon- ment, and that he was entitled to a deed. The recision or specific performance of a contract is left to the sound dis- cretion of the chancellor, to be exercised upon a consideration of the cir- cumstances of each case, under applicable general rules of equity. Evidence will not be considered which is not responsive to the bill or answer. DUBUQUE, JULY, 1849. 339 Shaw V. Livermore. In Equity. Appeal from Jackson District Court. Opinion hy Greene, J. The bill in this case was filed by John Shaw against Allen Dutton and Zalman Liver- more for a specific performance. In substance it avers, that in May, 1845, Shaw contracted to sell Dutton a cer- tain one acre lot of land, in the town of Springfield, in Jackson county, upon the condition that Dutton should build a line fence between said lot and the adjoining land, belonging to said Shaw, on the east and south sides of said lot, and pay the sum of $1.25, and that so soon as Dutton should build said fence and pay said sum of money, Shaw was to make him a deed in fee simple to said lot. The bill further alleges, that in pursuance of the agreement Dutton entered uj)on the premises, erected a dwelling house thereon, and made other improvements under the observation and notice of said Shaw, and with- out any objection from him; that in the spring of 1847, Dutton made the fence, tendered the money, and demanded a deed, Avhich was refused ; that Shaw intended to cheat and defraud Dutton ; and that Dutton sold the premises to Livermore in April, 1847. The bill concludes with a prayer for a deed in accordance with the contract, and for general relief. The answer admits that there was a contract for the land designated ; but denies that the terms of the contract were such as are set forth in the bill. It states that Dut- ton, who represented himself to be a good house carpenter and cabinetmaker, agreed to settle upon the land, build a good house thereon, and also build a good board fence, five and a half feet high, on the east and south sides of the premises, and carry on his trade ; and that, upon the per- formance of those conditions, the respondent was to give and grant the lot of land in question. But the answer absolutely denies that the complainant ever complied with those conditions, and charges that he did not carry on his trade upon the premises, and that he declared his inten- 340 SUPREME COURT CASES, Shaw V. Li verm ore. tion to abandon, and did abandon the premises, and that he stated on divers occasions to the respondent that he did not expect him to give a deed for the land, as he had not fulfilled the contract. Respondent then admits that com- plainant entered upon the lot, and charges that during the time he remained there complainant re23eatedly promised respondent that he Avould comply with the contract, and respondent was induced to believe that he would do so until he abandoned the premises ; admits that some fence was made in the spring of 1847, but denies that it was such a fence as the contract required ; admits that Shaw sold premises to Livermore, and that a deed was demanded and refused, because the contract had not been com- plied with on the part of respondent ; and the answer denies all fraud, and the right of complainant to relief in equity. The complainant filed a general replication. Depositions were taken by which it is proved by one witness, that Shaw admitted the sale of the lot to Dutton for the sum of $1.25, and upon condition that he would build a house on the lot; that in the summer of 1845 Dutton built the house upon the lot, and moved into it ; and that there was a board fence built on the east and south sides of the lot. Another witness testified that Shaw told him that he had done more than any other man in getting people to settle at Springfield, that he had given Dutton an acre lot, and on being told that he got pay for it, replied that he only received government price for the land. The same witness swore that Dutton built a house upon the lot, and lived in it until May, 1847; that Dutton, on two occasions, tendered $1.25 to Shaw, and demanded a deed, which was refused, and that the fence was finished around the lot before the final tender and demand. Other witnesses testified in substance to the same effect. Depositions were also introduced in behalf of respondent in support of averments contained in his answer ; but the testimony is not sufficient, we think, to contravert the DUBUQUE, JULY, 1849. 341 Shaw V. Livermore. material allegations in tlie bill, as sustained by preponder- ating evidence. The court referred the case to P. B. Bradley, Esq., as a master to assess the value of the improvements upon the premises, who accordingly returned the value, under the estimate of witnesses, at $100.4. Upon a full hearing, the court granted the prayer of the petition, and decreed a conveyance of the premises to the comphiiuants, with a priviso that tlie decree should be void if Shaw paid complainants §100 within twenty days. To this decree several objections are urged, to which we will briefly advert. 1. It is urged that complainants are not entitled to a specific performance, because Dutton had not performed his part of the agreement. But we think tliis objection is not maintained by the facts as they appear in the bill, answer and depositions. They disclose no serious default on the part of Dutton. He appears to have acted in good faitli, and to have taken all necessary steps towards a substantial compliance with the terms of the agreement. He appears to have built a house and the fence upon the lot as stipulated ; to have tendered the money and demanded a deed, and to have resided upon the premises as a carpenter and joiner for nearly two years before he sold his interest to Livermore, and it is not pretended that these things were not done within a reasonable time. At least, the important con- ditions, which would entitle him to a deed from Shaw, appear to have been performed with ordinary diligence. If the facts in this case bad indicated gross laches, or inexcusable negligence in performing the conditions of the contract on the part of the complainant ; or if, after the inception of the agi-eement, and the refusal of the respondent to execute the deed, those facts had shown a material charge affecting the rights and obligations of trie parties ; the broad, equitable and just rules of chan- cery jurisprudence would be violated by enforcing a spe- 342 SUPREME COURT CASES, Shaw V. Livermore. cific performance of the contract. But, on the other hand, this court will extend relief to the party who seeks it, even if there has not been a strict legal compliance with the terms of the contract, where such non-comi)liance does not affect the essence of the agreement, does no violence to the manifest intention of the parties, nor shows gross negligence in the complainant. 2 Storj-'s Eq. Jr., § § 771, 776, 777; Taylor v. Longworth^ 14 Peters, 172, 175. 2. The next objection urged is, that the object of the agreement was lost to the respondent by the complainant's abandonment of the premises. If they had been aban- doned by complainant before he had sufficiently performed the conditions of the contract to entitle him to a deed from respondent, this objection would have been tenable. But, as we understand the case from the evidence before us, the leading conditions upon which Shaw agreed to convey the lot to Dutton were: 1. The erection of the division fence ; 2. Of a house on the lot ; 3. The pay- ment of $1.25; and 4. As an incident to those leading conditions, Shaw appears to have attached much import- ance to Button's living upon the premises as a mechanic, for the convenience and benefit of the town of Spring- field. But, in relation to this fourth stipulation so much relied upon by respondent, the case does not show any definite agreement between the parties. We cannot, therefore, regard it as an essential element of the con- tract. Besides, if it should be deemed essential, it can- not amount to a valid objection to a specific performance, because there was no portion of time designated for the occupancy of those premises by Dutton as a mechanic, before he should receive a deed for them ; and in giving a construction to this doubtful branch of the contract, we think it reasonable to assume that, as Dutton had occupied the premises nearly two years before selling his interest in the property, and delivering his possession to Livermore, and as he had mainly performed the more important con- ditions of the purchase from Shaw, he brought himself within the vale of equitable relief. We can observe DUBUQUE, JULY, 1849. 343 Shaw V. Livermore. nothing in tlie transaction to support the position that, as a condition precedent to complainant's riglit to a deed, he should have continued in actual possession of the lot, and in his mechanical occupation, during a still longer probationary term. 3. It is proposed that unless complainant has made out a clear and conscientious case, a court of chancery should, in the exercise of a sound discretionary power, leave the party to his action at law for damages. It is true in equity, that the determination of all cases respecting the recision and specific performance of contracts is a 'matter of discretion in the com-t, and not of right in the party ; and in the exercise of that discretion upon a sound, rea- sonable and unbiased consideration of the peculiar cir- cumstances connected with each case, a court should call in the aid of general rules and principles of equity juris- ju'udence, so far as their application may be apparent. Thus guided in the exercise of that discretionary power, we think the circumstances of this case, together with the certain, fair and just objects of the agreement, show that the decree of the court below is reasonable and proper. 4. But another objection, to which it may be well to advert, is, that the complainant discharged respondent of his contract. This position is assumed from a portion of the evidence. But as that evidence is not responsive either to the bill or answer, and is not only impertinent, but vagu» and unreliable, we conclude that this objection is also without foundation. Decree affirmed. L, Clark and F. A, CAenotveth, for appellant. P. Smithf for appellee- 344 SUPREME COURT CASES, Gaveny v. Hinton. GAVEN-Y V. HINTON. Where a grantor reserves a house, rails, &c., which were on a strip ten rods wide and one. hundred and sixty rods long, on the west side of the quar- ter section of land sold, but the house, &c., were afterwards found to be a short distance east of tlie ten rod strip, it was held that the grantor was entitled to the house. Course and distance should yield to natural and artificial objects which are made part of the description of land. In construing contracts, that which is most material and certain, and most conformable to the intention of the parties, should prevail. Error to Jackson District Court. Opinion by Williams, C. J. This cause was tried at the May term, 1849, of the Jackson county district court. The plaintiff, Hinton, sued Gaveny, in tresj^ass, for " throwing down and hauling awa}'" a certain building, on the west side of Hinton's land, and claimed for his damages $75. He obtained a verdict and judgment for $25. The record shows that Hinton, the plaintiff, had entered, at the land office at Dubuque, the south-east quarter of section 17, township 85, range 4, east of the fifth principal meridian. The entry was made in Feb- ruary, 1849. Afterwards, on or about the 1st day of April, of the same year, Gaveny took down and car- ried away the house which stood on the land.» This is the tresi3ass of which the plaintiff complains. It appears, also, that Gaveny had taken and occupied the land, as his claim, previous to the time of Hinton's entry. He had made improvements on it by building the house in question, fencing, planting fruit trees, &c. Hinton, to adjust the matter between him and Gaveny. became the pmxhaser of his claim to the land. There- upon Gaveny made him a release, or a quit claim deed, which is in the following terms, viz. : " Know all men by these presents, that I, John Gaveny, of the county of Jackson and state of Iowa, in consideration of the sum of DUBUQUE, JULY, 1849. 345 Gaveny v. Hiiiton. $25, to me in hand, paid by Silas Hinton, of the county and state aforesaid, have this day bargained, sold, released and relinquished all my right, title, interest and claim in and to the south-east quarter of section 17, township 85, range 4, east of the fifth principal meri- dian, to have and to hold, to him the said Hinton for ever ; except the log house, stable and corn crib, and hen house, and rail fencing and apple trees that are stand- ing on the west side of said quarter section, being a piece of ground ten rods wide and one hundred and sixty rods long, on the west side of said quarter ; which buildings and im- ■ jDrovements I have the right to remove from the land hereby bargained, sold and released, on or before the 1st day of December next. But the said Hinton shall have the right to occupy the said land, to cultivate and im- prove as much as the said Hinton may think proper. Said house is not to be occupied by any person while it remains where it is, after the 1st of March next; and if the ten acres of land hereby sold shall take any of the wheat that was put in by Thomas Young, the said Young shall have the right to take said wheat away ; and I do hereby agree, and authorize the said Hinton to enter the land aforesaid at the land office in Dubuque." The con- tract bears date February 14, 1849. Exception was taken to the charge of the court below, as given to the jury, affecting the contract between the j)arties in relation to the house, which is the subject of the alleged trespass. For a defence to the plaintiff's action the defendant Gaveny set up, by plea, his right to the removal and ownership of the house, on the ground that it had been expressly reserved ffom sale by the con- tract between him and Hinton. He relied on the written contract to show the intention of the parties in relation to the house. Hinton, the plaintiff, replied to this alle- gation of the defendant, that the house was not within the strip of land described, by limits, as to extent, in the agreement, to wit : " standing on the west side of said quarter, being a strip or piece of ground ten rods wide Vol. II. 23 346 SUPREME COURT CASES. Gaveny v. Hinton. and one hundred and sixty rods long, on the west side of said quarter." It appeared fi'om the evidence that some time after the contract had been made, it was ascertained that the house in question was not within the area of land described as " ten rods wide and one hundred and sixty long ; " but that it stood a short distance outside of it. The error assigned, upon which the reversal of the judg- ment of the district court is urged, is founded on the instruction given to the jury. The judge charged the jury as follows, viz : " The question is one j^urely depending upon the con- tract between the parties, and there are no equities which would authorize the court or jury to lean to either side. If the contract was fully understood and read by the par- ties before being executed, and either one has a technical advantage over the other, they must abide by it, and take the consequences thereof." After stating the agreement of the parties, he jDroceeds to say : " The construction of this contract is not ambigu- ous, and is a matter of law. I think that no other house was reserved by the contract to Gaveny, except such a house as was, or might be included in a strip on the west side of the quarter, ten rods wide and one hundred and sixty rods deep, and if the house in dispute lay east of this strip which would be made by ten rods wide and one hundred and sixty rods deep, the plaintiff is entitled to recover, if it was removed by the defendant, and that the measure of damages is the value of the house where it stood." The question involved here depends for solution upon the intention of the parties to the contract, as expressed therein. It is clear that at the time the house was removed by Gaveny, Hinton was the owner of the land in fee simple. Without his consent it could not be taken away, legally. Did he give that consent ? A fair examination of the contract will, we think, answer the quesiion in the affirmative. Gaveny, for a money consideration, sold to Hinton his right, title and claim to tlie laud, reserving DUBUQUE, JULY, 1849. 347 Gaveny v. Hinton. the house, &c., described as being- on a strip or piece of the land sold, on the west side of the quarter so sold, ten rods wide and one hundred and sixty rods long. The house, fence, &c., were excepted or reserved to Gaveny, describ- ing the land upon which it was supposed they stood. It must be presumed from the language of the contract con- cerning the reservation of the house, that the parties in treating of it considered, and had an understanding at the time, that the area of land " ten rods wide and one hun- dred and sixty rods long on the west side of the quarter " would include the house, fence, &c., which were excepted and reserved from sale. The reservation of the house, &c., together with the money paid by Hinton, formed the consideration for which Gaveny parted with his claim to the land, and suffered him (Hinton) to take the land by entry at the Dubuque land office. The area of land as limited, bounded and defined by lines, is nothing more than a description of the ground on which the house, &c., were supposed to stand. There is no allegation that there was any other house on the land. Hinton, having ac- cepted and availed himself of the interest and claim of Gaveny, under the contract, was bound to do so, subject to the terms thereof as to the reservation. The considera- tion upon which the house was reserved for the use and benefits of Gaveny was good ai.d valid in law. As a legitimate incident to the contract, Gaveny had a right to remove it and appropriate it to his use. This is not a question of boundary and definite admeasurement of land, involving, as the subject matter of controversy, the quan- tity or number of acres contracted for in the sale. If this were the question, then it would be necessary fully to examine the law of description, and monumental land- marks, for aiiplication to this case. But, even then, the law is well settled, that com-se and distance must yield to natural and artificial objects which are made part of the description ; they being susceptible of direct ascertain- ment as monuments designative of the intention of the parties to tlie contract. 348 SUPREME COURT CASES, Gaveny v. Hinton. In sucli case, course must be varied and distance short- ened, sx) as to conform to natural or artificial objects wliicb can be clearly ascertained, as set forth in the grant under the contract. Such monuments or landmarks, as a river, spring, stream, house or marked tree, are generally- familiar to the contracting parties, so as to be made demonstrative of their intention. The case of Jackson v. Moore^ 6 Cow., 717, presents much and able discussion on this question. Among other things there recognized as cardinal in doc- trine, as of the construction of deeds, the judge says, " In construing deeds, effect is to be given to ever}'- part of the description, if practicable ; but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated ; but those circumstances will be rejected as false or mistaken." Jackson v. Clark, 7 John., 217; Jackson v. Loomis, 18 ib., 81 ; 4 Mass., 146; 5 East., 41. The principle established by this decision, we think, is essential to a fair and just construction of the con- tract. The house is the substantive matter of the contract, so much so that as such it is designated, and reserved in the most positive manner as the property of Gaveny. If it had been named in the contract as descriptive of the boundary of land, as a monument for the ascertainment of quantity, or limit, it would have operated so as to control and establish course and distance ; certainly then, when it is made a substantive matter, of the value and considera- tion of the contract, misapprehension or mistake as to course and distance should not control and destroy a right BO manifest. It is urged on the part of Hinton, that, *'in construing the contract, the intention of both parties must be taken into consideration by the court ; that it is not the only question whether Gaveny thought he was getting the house ; but that it is equally a question whether Hinton thought so, and that the conclusion must be derived from the terms of the agreement itself." This is all true. The DUBUQUE, JULY, 1849. 349 Gaveny v. Hiiiton. ag-reemeiit of tlie parties by its terms exjDressly reserves the house for Gaveny. By all that is fair in construction we must believe that Hinton, as well as Gaveny, con- sidered and knew that the house was to be the property of Gaveny, or it would not have been so expressly stated in the contract. When such is the contract, if Hinton knew, or thought that the house would be found by the course and distance of the lines described, to stand outside of the area of ten acres, lie should have been careful to have his agreement made with a proi)er reference to such a state of the case. He cannot be allowed to make void or defeat the right expressly given by his contract, by an argument based on this position. The execution of the contract, and acceptance of the rights and benefits aris- ing from it, binds him to the observance of the rights of Gaveny, in compliance with its terms, as expressed therein. In construing contracts, that which is most material and most certain in description shall prevail over that which is less material and certain. 1 Cowen, 612; 5 id.^ 371; 6 Wheat., 582; 7 ib., 10. This being the rule, and the intention of the parties being manifest in relation to the subject matter in con- troversy, there is error in the instruction of the court, by which the description of the area of laud, by com'se and distance, is made to exclude the house from the effect of the contract; and by virtue of which the plaintiff re- covered in the judgment of the court below. Judgment reversed. P. Smith, for plaintiff in error. L. Clark, for defendant. 350 SUPREME COURT CASES, Taylor v. Barber. TAYLOR V. BARBER. In an appeal to the district court, where the appellant is in default, the judgment of the justice may be aftirmed. By going to trial on the merits without exception to the cause of action, any defect in that particular would be considered as waived by the defendant. A verbal statement of plaintiff's demand before a justice, entered upon his docket, and indorsed upon the writ, is all that is required by the statute of 1844. Mere irregularity and deficiency of form in proceedings before justices should be regarded with liberality. Ekroe, to Dubuque District Court. Opinion by Greene, J. Barber sued Taylor before a justice of the peace. It appears by tlie transcript of the record that the plaintiff filed his affidavit according to law, averring an indebtedness to him from the defendant of $100; a writ of attachment was issued; the parties appeared; witnesses were examined, and a trial had, upon which the plaintiff recovered a judgment for the sum of $87.20 debt and interest. Thereupon the defendant took an appeal to the district court, and failing to appear there, judgment was rendered against him by default for the same amount, and in affirmance of the judgment rendered by the justice. The errors assigned and urged to these proceedings may be considered under two heads. 1 . It is contended that as the record does not show the action to have been brought on a note or a written instru- ment, judgment by default could only have been rendered upon the verdict of a jury. In support of this position, the thirteenth section of the practice act. Rev. Stat., 471, is cited. This section authorizes the court to direct the clerk to assess damages when judgment is given by de- fault on any instrument of writing ; but provides that in all other actions, wlien judgment shall go by default, the plaintiff may have his damages assessed by a jury. The regulations of this section we regard as applying particu- DUBUQUE, JULY, 1849. 351 Taylor v. Barber. larly to actions brought originally in the district court, and not as an imperative rule in appeal cases. The eighth article of the justices' act, under the head " Of appeals and proceedings thereon in the district court," defines the practice to be pursued in many particulars, when cases are taken to that com-t by appeal ; and these special provisions for such cases should prevail over the general rule established by section thirteen of the " prac- tice act." The second, third and sixteenth sections of the eighth article above referred to, clearly contemplate an affirm- ance of the judgment of the justice without a trial de novo, or a writ of inquu-y, to redetermine damages which had previously been assessed in the justice's court; and cer- tainly no condition of a case could more manifestly justify an unqualified affirmance than the default of the appellant. His fa • * • f STRAWSER V. JOHNSON. A general plea that a note was obtained by fraud and circmnTention ii good. Ekror to Dubuque District Court. Opinion by Greene, J. This was an action of assump- sit commenced by William L. Johnson against George Strawser, on two promissory notes. Among other things, the defendant pleaded that the notes were obtained from him by fraud and circumvention. A demurrer to this plea was sustained by the court below, and this ruling is the only question presented for adjudication. It has already been determined by this court that a general plea of fraud, under our statute, in an action on a promissory note is good ; Hildreth v. Tomlinson, ante, 360 ; Hampton v. Pearce, Morris, 489. No good reason has been urged for departing from a practice which has 374 SUPREME COURT CASES, Chapman v. Morgan. been uniformly recognized by this court in such actions. The charge of fraud, though general in its character, has a sj^ecial application to the obtaining of the note. Although the charge is general, it is still upon an object so definite, upon a transaction so specific, that the nature of the fraud cannot be mistaken. Ordinarily it is a safer practice to make special allegations of fraud in pleadings, but in those cases where a general averment of it is made upon an act so certain and detached from other transac- tions as to render the subject matter of the fraud obvious, we think no good reason can be U2*ged against the suffi- ciency of such averment. Davis v. Tilcston, 6 Howard, U. S., 120 ; Barber v. Kerr, 3 Barb., 149. The reason for this rule is, we think, alike applicable to law and equity pleading. Judgment reversed. Wilson and Smith, for plaintiff in error. B. M. Samuels and Wm. Y. Lovell, for defendant. CHAPMAN V. MORGAN" et al The action of trespass quare clausum frcgit is local, and can only be enter- tained by a justice of the county in which the land is situated. Appearance will not confer jurisdiction over parties not residing within the jurisdiction of the court, nor subject to its process. Consent of a party cannot confer a greater authority upon a conrt than the law affords. The district courts iiave jurisdiction over all civil and criminal matters arising in their respective districts. Agreed Case from Clixton District Court. Opinion by Greene, J. Trespass quare clausum /regit commenced before a justice of the i)eace of Clinton county, against Morgan uiid Hall, who were, when the trespass was DUBUQUE, JULY, 1849. 375 Chapman v. Morgan. committed and the suit commenced, residents of Scott county. After a trial before the justice the case was taken to the district court by appeal, and was on motion dis- missed, because the justice had no jurisdiction over the defendants as citizens of another county. As an objection to the decision, it is contended that this is a local action, and should have been commenced in the county where the land is situated. The correctness of this position will not be controverted, nor would the right of a justice of the peace to try in such an action defendants who are householders and reside without the county, if served with process within its limits, be questioned, if the statute did not expressly provide to the contrary. It provides " that in no case shall any civil action, other than by attachment, against any defendant who is a hoii^;eholder in this state, be commenced in any county other than the one in which such defendant resides." Laws of 1847, p. 90, § 6. This statute obviously limits the jurisdiction of justices in such suits to defendants who are citizens of the county in which the justice is authorized to act, and de- prives him of all authority over non-resident citizens. But it is contended that by appearing and going to trial, the defendants waived all objection to the want of jurisdic- tion in the justice. If there had been any defect or irregu- larity in the process, and service, or any other method provided by law for bringing the parties into court, that defect might have been waived by appearance, but when no process, however regularly executed, can bring a party under the authority of the court, the appearance of the defendants cannot confer the authority. In a case like the present, where a justice is excluded by positive enactment from the exercise of jurisdiction, it cannot be conferred by an implied agi-eement, inferred from the appearance of the parties. Such appearance will not confer jurisdiction when it could not be exercised by process. As a general rule, consent cannot confer upon courts a greater power than the law affords. Parties cannot by agreement give jurisdiction to a court which could not be exercised by 876 SUPREME COURT CASES, Shaw V. Gordon. virtue of legal process. The authorities upon this point are uniform. Although this doctrine is ordinarily confined to the subject matter of a suit, we think it may with great propriety he applied to parties when they are by statute excluded from the cognizance of the court, as in this case. The position assumed by counsel, that the plaintiff would be remediless if this action could not be entertained before a justice of the peace, is not correct. He was clearly entitled to his action in the district court. Under the con- stitution, the district courts " have jurisdiction in all civil and criminal matters arising in their respective districts." All statutes to the contrary must necessarily yield to this paramount law. Hence the general jurisdiction which the district court possesses over all civil matters must neces- sarily include a full concurrent jurisdiction with justices of the peace. It therefore follows that the present action might have been entertained by that court, and as the statutory limitation in relation to non-resident defendants only attaches to justices' courts, that difficulty would have been removed. We conclude, then, that the court below did not err in dismissing the appeal. Judgment affirmed. W. E. Leffingmell, for plaintiff in error. P. Smith, for defendants. SHAW V. GORDON". In an action of unlawful detainer, a complaint is good whicb contains all the averments of facts required by statute. After a verdict and judgment have been rendered, without objection to the complaint, a court sliould not entertain merely formal defects. DUBUQUE, JULY, 1849. 377 Shaw V. Gordon. Error to Jackson District Court. Opinion by Greene, J. Shaw filed his written com- plaint before a justice of the peace, in an action of un- lawful detainer. The defendant appeared and submitted to trial without objection to the form of the complaint. Verdict and judgment for the plaintiff. The defendant appealed to the district court, and there moved to quash the proceedings, on the ground that the complaint does not show a cause of action cognizable before a justice of the peace. This motion was sustained by the court, and the suit dismissed at the cost of plaintiff. The only question submitted to our determination is, Did the court below err in dismissing the suit ? The de- cision of this question must be predicated exclusively upon the sufficiency of the complaint under our statute. The complaint substantially avers John Shaw to be law- fully seized in fee of the land therein described ; that he is justly entitled to the possession thereof ; and that said premises are now unlawfully detained from his possession by Charles Gordon, who resides thereon, and refuses to deliver up the same to complainant, although legally notified to do so. The complaint is dated June 9, 1847, and signed, " John Shaw." Unlawful detainer is defined by Rev. Stat., 345, Art. 12, § 3. If our statute recognized no other description of the offence than that set forth in this section, then we could but determine the comi3laint defective. Unquestionably, to enable the plaintiff to recover, he must prove the con stituents of unlawful detainer as designated by that sec- tion ; but that they need not be set forth in the complaint is rendered conclusive by reference to § 6 of the same article. It provides that, " when a complaint to any justice of the peace shall be made in writing, and signed by the party aggrieved, his agent or attorney, specifying the lands, tenements, or other possessions so forcibly en- tered and detained, or so unlawfully detained over, and Vol. II. 25 378 SUPREME COURT CASES, Shaw V. Gordon. by whom, and when done, it shall be the duty of the jus- tice of the peace to issue his summons," &c. This section sets forth the requisites of a complaint, in order to confer jurisdiction and power upon the justice ; and when made conformable to it, we must consider it substantially good, though it should not characterize the holding over in the language descriptive of the offence in the preceding sec- tion. By reference, it will be seen that the complaint in this case specifies all the facts required by the section which regulates it; and hence we are of opinion that the court erred in sustaining the motion to dismiss the suit. Had the complaint been deemed insufficient in form, it was still erroneous for the court to entertain the motion at that advanced stage in the proceeding. After a verdict and judgment before the justice without objection to the complaint, the district court should not have inquired into its defective form. Wright v. Lyle, 4 Alabama, 112; Hilliard v. Carr, 6 ib., 557; Snoddy v. Watt^ 9 ih.^ 611; Pearce v. Swan, 1 Scam., 268. The position assumed by counsel for the defendant in error cannot be controverted, that courts of inferior juris- diction must act within the scope of their authority as defined by law, and if the face of their proceedings shows that they have transcended that defined authority, they become coram non judice, and void ; but we cannot see the application of this ever recognized principle to the question at bar. The only inquiry legitimately before us is, whether the complaint is substantially good under our statute. The questions raised in relation to the justice trying title to lands and as to his proceeding in ejectment, were not passed upon by the district court, nor are they by the record made the j)roper subjects for adjudication in this court. The subject matter of the complaint is by statute made cognizable before a justice, and we may as.>nme, as the question is raised, that we can see nothing ill his proceedings thereon which materially overreaches the authoritv conferred. DUBUQUE, JULY, 1849. 379 Smith V. Bissell. The case of Wells v. Ilogan^ Breese B,., 264, is urged with much confidence to show that the complaint before us is insufficient. Had this decision been made upon a statute like ours, defining what shall constitute the sub- stance of the complaint, we should have had more difii- culty in arriving at our present conclusion in this case. Though the statute of Illinois is substantially similar to that of Iowa in defining " unlawful detainer," still it does not in like manner direct the ingredients or material re- quisites of the complaint ; and hence it was properly held in Welh v. Hogan, that the complaint should conform to the statute and set out the detainer or holding over as the same is defined by law, in order to bring the subject mat- ter within the jurisdifction of the justice. We have already noticed that our statute authorizes the justice to entertain jurisdiction by issuing his summons, when a complaint is filed with him containing the prescribed requisites ; and that the complaint before us contains at least the sub- stantial averments required. Judgment reversed. '■&' P. Smith, for plaintiff in error, L, Clarkf for defendant. SMITH V. BISSELL. A note \& prima facie evidence of a settlement between the parties to it, so as to exclude items of set-oif charged prior to the date of the note, unless the defendant first prove, or offer to prove, that such items were not in- cluded in the settlement upon which the note was given. A judgment cannot summarily be rendered against a surety in a case taken to the district couit by certiorari, as it may be in cases taken up by appeal. 380 SUPREME COURT CASES, Smith V. Bissell. Error to Dubuque District Court. Opinion by Greene, J. This action was commenced before a justice of the peace, on a promissory note made bj^ Seneca Smith to E. M. Bissell, and a judgment ren- dered for the amount due on the note. Upon trial before the justice, the defendant offered to prove items of set-off, which bore date prior to that of the note. To this evidence objections were made by the plaintiff, and sustained by the justice. Assuming this ruling to be erroneous, the defendant took the case to the district court by certiorari^ and there the decision of the justice was affirmed, and a judgment rendered against the plaintiff in error, and his surety in the certiorari recognizance. It is now contended that the court erred : 1. In affirm- ing the judgment of the justice; and 2. In rendering judgment against the surety. Upon the first point the question is presented. Does the note amount to prima facie evidence of a settlement be- tween the parties, so as to exclude items of set-off charged prior to the date of the note, unless the defendant first prove, or offer to prove, that such items were not included or satisfied in the arrangement or settlement upon which the note was given ? It is hardly consistent with the ordinary dealings be- tween men, nor with the more systematic transactions of commercial life, to presume that a man would be likely to give his note to a person who was at the same time in- debted to him. Such a presumption is not only inconsis- tent with the general course of business, but is repugnant to the language of the note, which acknowledges a given sum to be due from the maker to the payee. The prevail- ing office of a note is to show a liquidation between the parties, a settlement of mutual accounts, or an adjustment of a demand, and to create an evidence of the balance or the amount due from one party to the other. This leading and salutary object of a note would be greatly impaired. I DUBUQUE, JULY, 1849. ' 381 Smith V. Bissell. if it should not in all cases be adjudged at least pi^ima facie evidence of the indebtedness therein expressed ; and that all demands held bj the payer against the payee were satisfied in the arrangement upon which the note was executed. This principle was recognized in Gould v. Chasey 16 John., 226, which was an action on a note dated December 28, 1813, for $25. The defendant offered to set-off a note given by the plaintiff to one S., or bearer, for |1.33, dated in 1810, and also a memorandum in his book of accounts, dated May 27, 1811, in which the plain- tiff admitted that he was then owing the defendant the sum of $63.48. It was held by the court that, in the ab- sence of all explanation, the giving of the note wasjorma facie evidence that those demands had been satisfied. In Eaves v. Henderson, 17 Wend., 191, a set-off was offered against the note ; and in the set-off two items were included which had been delivered previous to the date of the note. It was held that evidence in relation to those two items, either as a set-off or payment, was not admissible, because a contradiction of the amount due, as expressed in the note. And it is doubted in that case, whether even an agreement to set-off precedent debts can operate as a payment, satisfaction or extinguishment of the note. Another case in point is Van Bur en v. Wells, 19 Wend., 203, in which a receipt for oats, dated anterior to a settle- ment between the parties, was pronounced to be irrelevant, as having prima facie been merged in the settlement. As a reason for this conclusion, the court say that the receipt was irrelevant because no evidence was offered to show that it was omitted in the settlement. Influenced by the foregoing views and authorities, we conclude that the note in the case at bar was presumptive evidence of a settlement between the parties, which in- cluded the items of set-off dated anterior to the note, and that evidence in relation to those items was prima facie irrelevant, and therefore inadmissible. The defendant might have rendered proof of those items relevant, by pro- posing to show that they were not included in the settle- 382 SUPREME COURT CASES, Smith V. Bissell. ment. A fact so isolated and detaclied from a legitimate set-off, can only become admissible by proving, or propos- ing to prove, some additional fact sliowing the legal con- nection and relevancy of that wliicli is offered. The prin- ciple appears to be well supported by authorities, that evidence apparently irrelevant to the matter in issue nuiy be lawfully rejected, unless the party offering it show how it can be made relevant by reference to facts already in evidence, or which he proposes to establish by evidence to be adduced. People \. Gening^ 11 Wend., 21 ; Van Buren V. Welh, 19 ih., 203, 205; Winlock v. Hardy, 4 Litt., 272; Harris v. Payne, 5 ib., 105, 108; Clark y. Beach, 6 Conn., 142; Crenshaw v. Davenport, 6 Ala., 390, 392; Tuggle v. Barclay, ib., 407, 410; Weidler v. Farmers'' Bank, 11 Serg. & Rawle, 134, 139, 140. From these authorities, the conclusion necessarily fol- lows, that in nisi prius practice, if evidence appears to be irrelevant at the time it is offered, it is not error to reject it merely because other evidence might be given in course of the trial, by which both connected might become rele- vant. Still a court may let in such proof in the first in- stance ; and if, after all is heard, it has no tendency to prove the issue, it may be excluded. But it appears to be the better practice, and sanctioned by high authority, to repudiate the irrelevant testimony in the fii'st instance, unless the party who offers it proposes to prove other facts at the proper time, which would render the evidence of all the facts admissible to support the issue. We think, then, that the court below very correctly affirmed the decision of the justice, and properly rendered judgment against the plaintiff in error. 2. But the court obviously went too far in entering judgment against the surety in the certiorari bond. A proceeding so summary and extraordinary can only be authorized by express statutory provision. Although this practice is j)rovided for in appeal cases, (Rev. Stat., 336, § 1 6,) it is not authorized against sureties in those cases which are renlo^•ed to the district court by certiorari. DUBUQUE, JULY, 1849. 383 Riggs r. Bagley. The judgment of the court below, so far as it affects the sm-ety, will therefore be reversed, but in all other particu- lars affirmed at the cost of the defendant in error. P. S-mit/i, for jalaintiff in eiror. L. Clarkj for defendant. ->♦»• < KIGGS V. BAGLEY. In a writ under seal, the seal should be named or referred to in the attestation. Error to Jackson District Court. Opinion by Greene, J. This case was commenced in the district court, and on motion the writ was quashed on the ground of having been insufficiently attested. The objection presented to the writ consists in the fact that there is no reference in it, or in its attestation, to the seal of the court. It concludes in these words : — " Witness, Frederick Scarborough, clerk of our said court at Belleview, this 3d day of May, a.d. 1849. (Attest) Fred. Scarborough, Clerk of District Court, Jackson Co., lowaj^ The seal of the court, without being in any way named or referred to, is inipressed upon a corner of the writ. It is contended that the court erred in thus quashing the writ, and dismissing the suit ; that as courts of gene- ral jurisdiction are bound to know and recognize their own seals by the impression from them, there is no necessity for naming or referring to them in any portion of the in- strument to which they are attached. The defect in the writ may be regarded as technical, merely formal ; as one which might properly have been conditidnally amended on motion in the court below; but 384 SUPREME COURT CASES, Ilig-gs V. Bagley. still it is a defect, an omission in the established form of a writ, which should not be overlooked. There is perhaps no form of judicial proceeding- that can be traced to greater antiquity than that of referring to the seal in the attestation of sealed instruments. And this form has continuously prevailed, especially in authen- ticating all public precepts and judicial process under seal. We are not tenacious to this form, merely because it bears a vestige of olden times, nor merely because it is generally recognized by courts of record ; but we adhere to it especially because it contains marks of propriety and utility. It is true, as is m-ged, that the seal of the district court proves itself, but it does not of itself prove that it was affixed by the proper officer, or by authority. The clerk is the keeper of the seal ; he alone is authorized to use it ; and upon affixing the seal officially to any process, he should attest the fact over his own signature. There is, we conclude, a propriety in this form of attestation, because it uniformly prevails, and is looked for in every genuine writ; and there is a utility in it, because it is one of the safeguards against surreptitious authentications. Ministerial officers of courts are too much inclined to depart from established forms and fixed rules. Innovation is not within the province of their duties, nor can they be justified by us in any deviation from forms well known, and regulations long defined. Judgment affirmed. Wilson and Smithy for plaintiff in error. Lovell and Samuels, for defendant. DUBUQUE, JULY, 1849. ;j«5 Corriell v. Doolittle. CORRIELL V. DOOLITTLE. In a suit commenced by attachment a general judgment was rendered, and upon it a special execution issued, on whicii the property attached was sold ; held tiiat tiie sale was valid. Where a judgment has been assigned, it is not necessary to make the assignee a party by scire facias, to enable him to sue out an execution in the name of the party wlio recovered judgment. Where a sheriflF's return of an execution sale does not show that notice of the sale was served upon execution defendant, it will not be presumed that notice was not given. Eeror to Dubuque District Court. Opinion hy Greene, J. Ejectment by Curtis M. Doolittle agaiust W. W. Corriell, for lot 90 in the city of Dubuque. Plea of not guilty. Trial by the court, and judgment for the plaintiff. Upon the trial, the plaintiff offered in evidence the record of a judgment rendered in the district court of Dubuque county, November 18, 1841, against said Corriell in favor of Andrew Keesecker, for the sum of $493.92. Also a special execution and sheriff's deed showing a sale to him of the lot in question, under said judgment, on the 4th day of January, 1845. In connection with this evi- dence the following facts were admitted : — 1. That the judgment had been assigned by Keesecker to Doolittle before the execution was issued ; 2. That the sheriff's returns on the execution were regular, witli the exception that they did not state that the sheriff gave notice in writing to the defendant in execution, or leave such notice at his last usual place of abode, as required by Rev. Stat., p. 633, § 9 ; 3. That the defendant was in possession of the premises at the commencement of the suit. The case having been by agreement submitted to the decision of the judge, without the intervention of a jury, the defendant objected that the evidence was not sufficient to entitle the plaintiff to recover, but the court decided otherwise, and rendered judgment accordingly in favor of the defendant in error. 386 SUPREME COURT CASES, Corriell v. Doolittle. Three points are urged in this court to show that the decision below was erroneous. 1. That the judgment was general upon which the sale was made, and a special execution issued thereon. By the record it appears that the suit upon which the judg- ment was rendered had been commenced by attachment, and that although the court rendered a general judgment, the execution was issued pursuant to the writ of attach- ment. To have been strictly regular and formal, the judgment should have ordered a special execution upon the j)roperty attached. But that omission in the form of the judgment could not vacate the attachment lien. It ran conjointly into the judgment and execution from the date of the attachment levy, and we think the special exe- cution was fully authorized by that levy and the resulting lieu, even without the special order in the judgment. Again, it was one of those irregularities in form which might have been at any time corrected nunc pro tunc. The record in the case affords ample data for such correc- tion, had the objection been urged at the proper time, on motion to set aside the execution or levy thereon, and hence we cannot regard it as one of those substantive defects which can invalidate a title acquired under a judicial sale. It was not a defect which could result in any inconvenience or injury to the execution defendant, and therefore the objection should not prevail. The form of the executjon is unexceptionable. Upon its face it conferred complete authority for the sale. It recites the original attachment and levy ; describes with precision the judgment upon which it issued, and directs a sale of the property attached. So far then from being a void execution, we cannot regard it as even voidable, for it clearly shows and follows tiic judgment upon which it wns founded. The order to sell special property is not only authorized by the nature of the proceedings, but also by the general and nnlimited order that an execu- tion should issue. This authority for a general execution necessarily includes a warrant for one of a more limited DUBUQUE, JULY, 1849. 387 Cornell v. Doolittle. or special cliaracter, as tlie minor warrant is obviously comprised under the greater. 2. Tliat Doolittle ought to have been made a party to the record by scire facias before the execution was issued, because he was the only person beneficially interested in the judgment. We can see no necessity or propriety for such a proceeding. The mere assignment of a judgment can have no tendency to impair the liability of the judg- ment debtor, nor the right of the creditor to an execution in the name of the party for whom the judgment was ren- dered. The only change that an assignment can effect is, to substitute the assignee as recipient of the money paid in satisfaction of the judgment. The assignment can effect no change in the parties to the execution. It could only issue in the name of the party who recovered the judgment, for if otherwise issued, the execution would not be following the judgment, and could not therefore be warranted by it. In Hamilton v. Lyman, 9 Mass., 14, it was held that where one of two or more judgment credi- tors dies after judgment and before execution, that the execution should issue in the name of all the creditors, and that the survivors should not be put to their scire facias. Indeed, this resort to a scire facias appears to be necessary only to revive an execution-lost by lapse of time, or where the execution is to issue in the name of a person not a party to the record, occasioned by the Tnarriage, bankruptcy, or death of the original party, so as to substi- tute the representative of such party as a privy to the judgment ; but no authority has been produced in support of this practice in a case like the present. Such a pro- ceeding would occasion unnecessary delay, expense and inconvenience, without any resulting benefit or security to execution defendants. 3. That the sherifl" did not state in his execution returns that he gave notice in writing to the defendant as required by the " valuation law." Rev. Stat., p. 633, § 9. Section 8 of that act provides, " that any sheriff or other officer 388 SUPREME COURT CASES, Corriell v. Doolittle. levying an execution upon any real estate shall, previous to otFering the same for sale, give at least four weeks' notice of the time and place of such sale, by posting up written advertisements thereof in four of the most public places in the county in which such real estate may be situated." The next section, after pointing out the duties of the officer in cases where the property taken and sold on execution should not sell for a sum sufficient to satisfy the debt, &c., provides that he should "make retm-ns of his doings thereon as in other cases ; and in all cases, in addition to the above notifications of such sales, the officer shall give notice in writing to the defendant in execution, or leave such notice at his last or usual place of abode." It is admitted that the returns of the sheriff were full and perfect in every particular, except in relation to the above written notice upon the defendant. This special notice was required in all cases, and without it the sale of pro- perty belonging to an execution defendant residing within the state would be considered at least irregular, and as between original parties to the judgment and execution, would doubtless be deemed sufficient to invalidate the sale. But the validity of a sale under such an irregu- larity need not be considered in the present case, either as to the original judgment creditor, or as to his assignee, nor yet as to third parties ; for we cannot, in the absence of proof, take it for granted that legal notice was not given. The mere silence of the sheriff's returns in rela- tion to that special notice cannot create a legal presump- tion against any party that it was not regularly given. But it is contended that it should expressly appear by the returns that the officer gave this notice. The returns would have been more complete if that fact had been stated in them ; still we cannot regard the omission as an irregularity which can impair the validity of the sale. Humphreys v. Beeson, 1 Gr. Greene, 199, 214. While the statute directs the officer to make return of his doings in other particulars, it gives no such direction I DUBUQUE, JULY, 1849. 389 Cornell v. Doolittle. in relation to this special notice. Hence it cannot be con- sidered as the omission of even a dh-ectory duty under tlie statute. The principle is generally asserted in the books, that the validity of a judgment sale does not depend upon the regularity of the sheriff's returns ; and that principle has been fully adopted by this court. Humphreys v. Beeson, 1 G. Greene, 195, 215; Hopping v. Burnam, ante, 39. We conclude, then, that no irregularities are disclosed in this case which can be considered sufficient to impeach the judgment title upon which the defendant in error recovered in the court below. In arriving at this conclusion we freely acquiesce in the position assumed by counsel for the plaintiff in error, that when the party for whose benefit the execution was issued becomes the purchaser, he should be held accountable for irregularities which would not effect a bona fide sale to a third party. But we think that the uTegularities complained of in this case should not prove available even against the original judgment creditor, had he purchased the land. Judgment affirmed. P. Smithy for plaintiff in error. S, Hempstead^ for defendant. CASES m LAW AND EQUHT, DETBBMINED IN THB SUPREME COURT OF THE STATE OF IOWA, BURLINGTON, MAY TERM, A,D. 1850, In the Fourth Year of tJie State. present : Eon, JOSEPH WILLIAMS, Chief Justice. Hon. JOHN F. KINNEY, ) . , HOK. GEO. GREENE, Juanea. ■ > ■•♦• < SPRINGER V. STEWART. In an action upon an agreement Avith mutual and dependent conditions, the plaintiff to sustain liis demand must account for all he undertook under the agreement, and the defendant, to sustain his set-off, must establish each item of his demand by proof. Error to Lee District Court. Opinion by Kinney, J. Springer & Co. sued Stewart in an action of assumpsit on an account for work and labor done, in catting and packing pork for defendant. To this demand defendant pleaded a set-off, claiming damages against plaintiff for the value of a large number of hogs delivered by divers persons for Stewart to Springer, and not accounted for by said Sjjringer, and for the value of a large amount of the pork cut and packed by Springer, BURLINGTON, MAY, 1850. 391 Springer v. Stewart. but never delivered by him to Stewart as per contract, r.iid for not accounting for a large quantity of lard made by Springer from the hogs cut and packed, &c. Upon the trial, the defendant, in order to sustain his set-ofl", introduced to the jury the following agreement: " Article of agreement between M. D. Springer & Co. of the first part, and Pickering & Carly, of the second. Springer & Co. agree to pack from one to three thousand hogs for said Pickering & Carly, as follows : The lard rendered and packed in barrels, marked and weighed, the pork packed in barrels or bulked, as shall be directed. All to be delivered at the landing of Springer & Co. The work to be done in a workman-like manner, for which the said Pickering & Carly agree to pay said Springer & Co. 16 cents from the scales. The said Pickering & Carly to furnish salt and barrels, delivered at the aforesaid landing," &c. From the bill of exceptions it appears that this instru- ment was adopted as the contract and basis of the opera- tions between the parties to this suit, and that they were governed by it in their dealings in respect to the hogs, pork and salt mentioned in defendant's set-off. The testimony as set forth in the bill of exceptions proved that hogs had been delivered by defendant below at the landing of said Springer, in pursuance of the terms of this contract, and that said salt had also been delivered for the purpose of salting said pork. Tlie com"t instructed the jury that it devolved upon the defendant to show how much pork and salt were delivered to plaintiff, and the plaintiff to show that he accounted for such pork and salt at the landing of Springer & Co., when called for by the defendant in accordance with the contract, and that if defendant or his agent would not permit either by acts or words the jjlaintiflf to account for said salt and pork at the landing where he desired to do so, it devolved upon defendant to show the loss which he had sustained. It appears that this last instruction was given in reference to testimony showing that when defendant by his agent 392 SUPREME COURT CASES, Springer v. Stewart. went to the lauding of said Springer & Co. to take away the pork when it was cured, that plaintiff proposed to show- the exact amount of said pork when he delivered it to the agent of said defendant, but that said agent rejected said proposal, and took said pork without ascertaining the quantity which he then received. To these instructions the plaintiff excepted. The instructions of the court being based upon the contract between the parties, it only becomes necessary to ascertain whether the construction given to the contract by the court was a proper one. By the agreement as adopted by the parties. Springer & Co. agreed to pack from one to three thousand hogs for Stewart, to render the lard, &c., and deliver the same at his, Springer's landing. For this Stewart was to pay a certain price and furnish salt, and barrels at said landing. For the work 23erformed under this contract, Springer brought his suit. Stewart pleaded the general issue, and gave notice of a set-off, claiming a balance due him for hogs, salt and lard which had never been accounted for to Baid Stewart by Springer. By the terms of the contract, each party was under obligations to perform certain speci- fied duties. The conditions of the agreement were mutual and dependent. Stewart was to furnish the hogs, barrels, salt, &c., and Springer to pack the pork, render the lard, &c., and deliver them at his landing. In order to entitle Stewart to sustain his set-off, it was incumbent upon him to prove how much pork and salt were delivered, and also upon Springer, before he was entitled to recover, to show that he accounted for the pork, salt and lard. We do not see that any other reasonable construction can be placed upon the contract between the parties, and therefore are of the opinion that the instructions by the court were correctly given. Judo-ment affirmed. J. H. Cowles, for plaintiff in error. W. J. Cochran, for defendant. BURLINGTON, ]\IAY, 1850. 393 Olive V. Daugherty, OLIVE V. DAUGHERTY. In an action of right, the jur}' returned a verdict, "We find the plaintifFen- titled to no part of lot, &c., at this time, but is entitled to $32.50 damas'es; and that the defendant is entitled to and took possession of the lot under color of title ; " held that on such a verdict a judgment might be rendered, and that the plaintiff might recover upon a less title than that set forth in the declaration. Error to Lee District Coubt. Opinion hy Greene, J. An action of right commenced l)y James Daugherty v. John Olive. Declaration and plea were drawn up in the form provided by statute. The case was submitted to a jury, who returned a ver- dict in the following words : " We, the jury, find the plaintiff entitled to no part of lot No. 11, in block No. 26, in the town of Keokuk, Lee Co., Iowa, at this time; but is entitled to $32.50 damages, and that the defendant is entitled to, and took jDossession of the lot under color of title." This verdict appears to have been delivered, and a judgment thereon rendered, without any exceptions being taken. It is now objected that the verdict could not justify any judgment against the defendant below, that the plaintiff could not recover upon a mere lease or demise, nor upon any title less than that set forth in the declaration. We think, however, that the statute, to allow and regu- late the action of right, furnishes no ground for those ob- jections. The twenty-fourth section clearly justifies the judgment in this case. It provides, that if the interest of the plaintiff in the property sued for expire before the day of trial, the verdict for the plaintiff shall be only for his damages, and that judgment shall be rendered accord- ingly. Rev. Stat., 529. The above 8ectio.u appears to have been framed with a particular reference to cases like the present. It obviously assumes that a recovery may be had upon a mere lease or demise, and upon a less title than is averred by the gene- Vol. IL 26 394 SUPREME COURT CASES, Jamison v. Reid. ral form of declaration furnished by tlie act. It would be a new feature in judicial proceedings to require a plaintiff to prove and obtain a verdict for all lie may claim in his declaration, before he could be entitled to a judgment. Although he cannot recover more, it is a universal rule that he may recover less than he demands. Another reason why the proceedings below should not be disturbed is, that no exception was taken at the trial. All appears to have been silently acquiesced in, and there- fore, unless the record disclosed palpable error or injus- tice, it would be im]3roper to reverse the judgment. Giving to the verdict in this case that reasonable intend- mcDt which courts of justice should always encourage, we must conclude that it was authorized by the pleadings, and that the judgment was conformable to the statute. Judgment affirmed. J. C. Hall, for plaintiff in error. Geo. C. Dixon and S. M. Powers, for defendant. JAMISON V. REID. In an application to the supreme court for mandamus on the district judge, affidavits were filed to show that certain facta were proved to the court below which were not certified in the bill of exceptions ; to these counter affidavits were filed ; held that in a matter thus susceptible of proof, and within the knowledge and sound discretion of the court below, this court will not interfere by mandamus. Error to Lee District Court. Opinion by Williams, C, J. This case and three others — viz., Joseph Taylor v. Hugh T. Reid; Harlow Barney v. same ; James Sprott v. same — are here upon writ of error. The i>ttorney for plaintiffs in error in the several cases moves the court as follows, viz. : — BURLINGTON, MAY, ISoO. 395 Jamison v. Reid. " And now comes James Jamison plaintiff in error, by Dixon his attorney, and asks the conrt for further time to assign errors, and upon retm*n of a certain transcript mentioned in the affidavit, filed in this canse, for an alter- native mandamus directed to the Hon. Geo. H. Williams, district judge of Lee county, to correct the bill of excep- tions filed in this cause, or show cause upon the affidavit and papers made a part thereof, filed in this cause." By consent, the decision of the question arising upon the motion in this case, being the same as that in the other three, is to apply to them all. The gravamen of the motion is laid by the affidavits of G. C. Dixon and Philip Veile, Esq. The first states on oath, that on the trial in the court below, among other tilings, the defendant Jamison offered in evidence an alias fi.fa. upon a judgment or decree for costs in the partition suit of the half-breed tract, rendered in 1841, against Augustus Gonville, and under a sale, upon which ^.y^. Eeid, the plaintiff in this suit, claimed title. That de- fendant also proved by said Veile, that said Augustus Gonville died in 1844 ; and that said defendant offered to prove that said Gonville died before the issuing and test of the said alias y^.^a.; but that Reid, the plaintiff, ob- jected to such evidence, and the objection was sustained by the court, the evidence excluded, and defendant ex- cepted. The affidavit states that the cause was tried at the November term of Lee county district court, 1849, at the latter part of the term ; that for want of time, by. agreement of the parties, the bills of exceptions were not drawn up until after the adjournment of the court. That the exceptions were settled by the judge in vacation. That he, affiant, had no opportunity to have said bills of exceptions corrected until the April term of said court. Philip Veile, judge of ]3robate, states in his affidavit, that he was sworn as a witness in the cause, and stated in evidence, that the records of tlie probate court showed that Gonville died in March 1844, It appears that at the April term of the Lee county dis- 396 SUPREME COURT CASES, Jamison v. Reid. trict court afterward, application was made to the district judge to correct or alter the bills of exceptions as to the matters here alleged ; and the parties were heard on the motion ; and that the court then refused the motion, and the bills were left standing as they were at first drawn. The defendant in error, Reid, filed his affidavit contra- dictory to that upon which the motion is based, and affirming the evidence as ofiered to be the same as stated in the bill of exceptions, so far as the same related to the time of Gonville's death. It appears that the attorneys and parties could not agree upon the evidence as offered, and that the proof as to what it had been was contradictory. It is to be presumed that the judge certified the bill of exceptions, then, truthfully, so far as he could, stating the fact as he understood it to be. In a matter of this kind, being of fact, trans|)iring on trial, susceptible of proof in the way pointed out by the statute, or within the peculiar knowledge of the judge below, and submitted to him by the consent of the parties, this court will not interfere by its supervising and cor- recting power, by mandamus. This court is not called on to compel the judge to per- form a legal and proper act required of him, but to dic- tate what shall be done by him in performing that act. "We cannot thus be called on, sitting as an aj)pellate supervisory court, to hear and determine the facts on which the adjudication of this question would depend. The means of enforcing the signing and sealing of the bill of exceptions, as asked for by the plaintiff in error, and as prescribed by statute, were waived. The practice act. Rev. Stat., p. 472, § 19, provides for the taking " exceptions to the opinion of the com-t during the progress of the trial, in writing ; which, when thus taken, it is " the duty of the judge to allow and sign and seal. But if the judge refuse to allow or sign such bill when tendered, then it may be signed by bystanders or attorneys of the court, and if the judge refuse to permit BURLINGTON, MAY, 1850. 397 Nelson v. Gray. tlie bill to become a part of tbe case, upon affidavit of such refusal, the supreme court may admit such bill of excep- tions as a part of the record. The legislature here have provided a legal remedy for the neglect or refusal of the judge to sign and seal the bill of exceptions, if it be ten- dered at the proper time. We admit that the practice of deferring the taking of the bill, not having it signed by the judge until after the trial is concluded, has prevailed in the courts of this state. When this is done, the judge necessarily must trust to his notes or to his memory for the facts to be certified in the bill of exceptions, should there be a disagreement between the parties or their attorneys as to the facts. Good grounds are not shown for a man- damus in this case. The statute affords an adequate and ample remedy to the party taking exceptions, when the judge refuses to properly certify the bill of exceptions. United States v. Dubuque Co., Morris, 31 ; Shejy/ierd v. Wilsou, 6 How., 260. The writ of mandamus is only properly exercised in cases of extreme necessity, where there is no adequate means at law to enforce a rightful official duty, and when the party seeking relief has not been in default. The writ of mandamus refused, Geo. C. Dixon, for plaintiff in error. H, T, Reid and H. L. Reeves, for defendant. > • » • < NELSON et al v. GRAY. The district courts have concurrent jurisdiction with justices of the peace in all sums under $100. After ilie death of a party is suggested, it is error to render judgment against him. Where a judgment is rendered upon a bond, it sliould be for the amount of the penalty ; with an order that an execution issue only for the amount of damages proved to have been sustained by the breaches. 398 SUPREME COURT CASES, Nelson v. Gray. Error to Lee District Court. Opinion hy Kikney, J. This was an action of debt commenced in the district court by Gray, for the use of Welsh, against Nelson and Dawson, upon a replevin bond executed by them jointly and severally in the penal sum of $80. After much interlocutory pleading a trial was had, and the jury found a verdict for plaintiffs in the sum of $42.40, and costs. A motion for a new trial was made and overruled. The plaintiffs assign the following for error : — 1st, Said bond being under $100, said district court had no jurisdiction. 2d, That the judgment is rendered against Dawson and Nelson, the latter of whom the record shows was dead at the time of the rendition of said judgment, 3d, That the jury found a verdict of $42.40, which is inconsistent with the declaration, $80 being the penal sum of the bond, and the amount for which judgment in debt ought to have been rendered. The first assignment attacks the judgment of the district court for want of jurisdiction, where the amount claimed is under $100. The constitution provides that the district court shall be a court of law and equity, and have juris- diction in all civil and criminal matters arising in their respective districts, in such manner as shall be prescribed by law. Art. 6, § 4. It also provides that the jurisdic- tion of justices of the peace shall extend to all civil cases (except cases in chancerj^, and cases where the title to any real estate may arise) where the amount in controversy does not exceed $100. Art. 12, § 1. It was claimed in the argument that this last clause gave to justices of the peace exclusive jurisdiction to the amount limited by the consti- tution, and that the district court could not exercise con- currently a jurisdiction under $100. We think this a violent construction of the constitution. BURLINGTON, MAY, 1850. 399 Nelson v. Gray. By the constitution, tlie district courts have jurisdiction in all civil and criminal matters in their respective districts. This power may he exercised in all cases where the amount claimed is under $100, as well as in cases where the de- mand is over. In the former, neither court has exclusive, but each, concurrent jurisdiction. The legislature may hj law regulate the practice and proceedings in the district courts, and in this way provide the mode of exercising the jurisdiction, but cannot curtail or restrict the power con- ferred by the constitution. If there is an apparent conflict between the clause in relation to the jurisdiction of district comets and that of justices of the peace, each if possible should be so con- strued as to preserve the force and harmony of both. As well might we say, that the jurisdiction of the dis- trict courts in all sums under $100 is exclusive, because it extends to all civil matters, as to place that construc- tion upon the same language in relation to the jurisdiction of justices' courts. The same reason exists for the one as the other, and hence such a construction upon either clause would be violent, unsound and erroneous. But by giving to each court a concm-rent jurisdiction to the extent con- ferred upon justices of the peace, the harmony of these provisions of the constitution is fally preserved, and the manifest intention of the framers of the instrument de- clared and enforced. But the court erred in rendering judgment against Nelson. From the record it appears that the death of Nelson was suggested, and the cause continued, for the purpose of making his administrator a party. This no- where appears to have been done, and the verdict is re- turned against both defendants, and a judgment entered up against them, which, so far as the judgment against Nelson is concerned, is erroneous. The suit being brought upon a penal bond, conditioned for the performance of covenants, the verdict, if for the })laintifF, should have been for the penalty of the bond, with an assessment of damages to the amount proved to 400 SUPREME COURT CASES, The State v. Cadle. have been sustained by the plaintiff by reason of the breaches thereof. In such case the statute provides for a judgment for the penalty to stand for such other breaches as may afterwards happen. Upon a verdict by the jury upon these bonds, the clerk should issue execution only for the amount of the breaches assessed, and an order to this effect should be entered of record as a part of the judgment of the case. In this case the penalty of the bond was $80. The jury found a verdict for $42.40, and judgment is rendered for the amount without regard to the penalty. As this was error, the judgment of the court will be reversed, at the costs of the defendant in error, but the error being more of form than substance, not seriously affecting the rights of the plaintiffs in error, we will not award a trial de novo, but direct the court to enter up a judgment in legal form against Dawson, the surviving obligor in the bond. Judgment reversed. J. C. Hall, for plaintiffs in error, Geo, C. Dixon, for defendant. THE STATE v. CABLE. The election in August, 1848, was the second general election nnder the con- stitution. Clerks of the district court and prosecuting attorneys should be biennially elected at the general elections. Submitted by Agreement from Muscatine District Court. Opinion bj Greene, J. This was a quo warranto on the information of Abraham Smalley against Ricliard Cadle. BURLINGTON, MAY, 1800. 401 The State v. Cadle. The complainant charges Cadle with unlawfully holding and exercising the office of clerk of the district court, in the county of Muscatine, to the exclusion of the relator, who claimed to have been regularly elected to the same office, on the first Monday in August, 1849, and to have executed a bond, and to have taken the oath of office as required by law, on the 25th of the same month. In pleading to the information the defendant acknow- ledged that he did hold and exercise the office as charged, but denied the usurpation alleged, and the right of Smalley to the office; and he justified by averring that he was duly elected to the said office at a general election held on the first Monday in August, in the year 1848, and on the 15th of the same month qualffied himself according to law, and that the term of office had not yet expii'ed. To this plea the relator demurred, but the court overruled the demurrer, and adjudged the plea a sufficient bar to the action. In thus disposing of the demurrer the court necessarily de- cided that a general election, as provided by the constitu- tion, was held on the ffi'st Monday in August, 1848, at which the defendant was elected to the office in question for the term of two years. The correctness of this decision is controverted by the plaintiff in error, and this is the only question involved in the case. The constitution provides for the election of clerks of the district court, by the qualified voters of each county, at the general election, and that they shall hold their office for the term of two years. Laws of 1847, Art. 6, § 5, of the state constitution. By the third section of the fourth article it is provided, that " the members of the house of representatives shall be chosen every second year by the qualified electors of their respective districts, on the first Monday in August, whose term of office shall continue two years from the day of the general election." The sixth section of the schedule declared, that the first general election under the constitution should be within three months after its adoption, at such time as the governor by proclamation might appoint for the election of represent- 402 SUPREME COURT CASES, The State v. Cadle. atives in Congress and state officers ; but the office of clerk is not enumerated in that section as one of those to be chosen at that election. Under this section of the con- stitution the governor appointed the first general election in October, 1846, and at that time the members of the first general assembly were elected, and clerks were chosen in a portion of the counties. As several of the clerks were chosen without legal notice of the election, an act was passed in which any person who received for clerk a majority of all the votes cast in the county for state officers, " at the general election on the 26th October, 1846," should be recognized as clerk, on giving the bond and taking the oath required by law. Laws of 1847, p. 24. Clerks were again elected on the first Monday in August, 1847, in some of the counties, and their election was declared to be legal by an act of the general assembly, approved January 25, 1848, and by the same act subse- quent elections were authorized to take place on the first Monday in August, 1849, and bienniall}' thereafter. But in many of the counties clerks were elected at the general election in 1848, and in December following another act was passed which repealed the act of January 25, 1848, so far as it applied to the election of prosecuting attorneys and district clerks, held on the first Monday in August, 1 848. This new act also provided that those officers should be elected on the first Monday in August, 1850, and every two years thereafter in every organized county in the state. The legislation on this subject has not only been contradictory, but some of it has been repugnant to the constitution. By that instrument it is expressly established that the clerks and j)rosecuting attorneys shall be elected at the general election, and hold their offices during the term of two years, and the time designated for this general election is the first Monday in August, when the members of the general assemblj^ are to be biennially chosen. But the first general election, as we have seen, was to be at such time as the territorial o-overnor miu'ht by proclamation appoint. Tliat time ha\ing been fixed BURLINGTON, MAY, 1850. 403 The State v. Cadle. in December, 1846, it necessarily follows that tlie next general election, as biennially designated by the constitu- tion, was on the first Monday in August, 1848, and would occur on the same Monday in every alternate year there- after. This, we think, is the only construction that can harmonize with the letter and spirit of the constitution, and such, we conclude, was the obvious intention of its franiers. So far as public convenience can have a bear- ing upon this question of construction, it was no doubt promoted by the decision below. Most of the elections have been conducted conformable to that view, and with that understanding most of the election laws have been enacted. The first legislature under the constitution clearly recognized that construction, in passing an act de- fining the time of holding elections for state, district and county officers. Laws of 1847, p. 163. The second section of that act provides that the governor shall be elected every fom* years, counting from the first Monday in August, 1846 ; and the biennial election of secretary, auditor and treasurer of state, counts from the same date, according to the third section of the act. In section 5, after providing for the election of several county officers on the first Monday of August, 1847, and biennially thereafter, it is enacted, " that in those counties where there was no election for clerks of the district court and prosecuting attorneys at the last election, there shall be elected, on the first Monday in August next, one clerk of the district court and one prosecuting attorney, who shall hold their offices until the general election on the first Monday in August, 1848," &c. ; and the same act provides for the election of senators and representatives at the election of 1848, and biennially thereafter. These various sections properly considered show the contemporaneous construction placed upon the constitution by the general assembly in relation to elections ; that construction has generally prevailed in practice, and has repeatedly been sanctioned by judicial decisions. So far then as public convenience can influence a decision upon a question of doubtful construction, it 404 SUPREME COURT CASES, 1 Trimble v. The State, is in support of the decision made in the court below. But independent of this consideration, and without going beyond the explicit language of the constitution, we have united in the conclusions, that the general elections authorized by the constitution are biennial, and as the first general election took place in 1846, the second was held on the first Monday in August, 1848, and all subse- quent ones must be held every two years thereafter ; and that under the constitution the only time appointed for the election of clerks and prosecuting attorneys is at the general elections. Judo-ment affirmed. "■Q' D, C. Cloud, for plaintiff in error. W, G, Woodward^ for defendant. r • * • < TRIMBLE V. THE STATE. The' act of the legislature creating two jury districts, and appointing two different places to hold the district court in Lee county, is not uncon- stitutional. Kinney J., contra. In examining a juror as to his qualification, he stated that " he had formed and expressed an opinion from the rumor or report he had heard in hia neighborhood, soon after the murder was committed ; that he had no acquaintance with the defendant, no ill-will or prejudice against him ; that he had no personal knowledge of the circumstances of the case ; that he had never heard any of the testimony or conversed with any of the witnesses ; that his opinion was conditional ; that if what he had heard was true, he had formed an opinion, and if not true he had formed none." Held that such a juror is incompetent. Error to Lee District Court. Opinion by Williams, C. J. Alexander Trimble was indicted at the September term of the district court at Keokuk, in Lee county, a.d. 1849, for the murder of Richard Wells. He was found guilty of manslaughter by BURLINGTON, MAY, 1850. 405 Trimble v. The State. the jury, and sentenced by the court upon the verdict to pay a fine of $1000, to undergo confinement in the peni- tentiary for the term of three years, and to pay the costs of prosecution. When the cause was called for trial, the counsel for the prisoner made three challenges to the array of grand and petit jurors respectively. The chal- lenges were overruled hy the court. Having proceeded witli the trial so as to call several petit jurors to the box, upon examination as to their legal qualification to sit as jurors in the case, they were challenged by the prisoner for cause. The challenge was overruled, and the jm-ors were sworn, and participated in making and rendering the verdict, upon which the judgment and sentence of the court were pronounced. Motions in arrest of judgment and for a new trial were made, and overruled by the court, before judgment and sentence. The following are the principal assignments of error, which are relied on as ground of reversal : — 1. The court erred in overruling the prisoner's challenges to the array of grand and petit jurors who found the in- dictment and tried the cause ; the venue for summoning both being illegal. 2. The court erred in not allowing defendant's challenges for cause of jurors who had each formed and expressed an opinion as to the guilt or innocence of the prisoner. The first assignment involves the question of legal validity as to selection, summoning and qualifications of the jurors, grand and petit. The objection involves the constitutionality of the pro- ceeding as conflicting with the organization of the coun- ties of the state for judicial purposes. In order to the proper disposition of this question, we will refer to the provisions of the constitution, and the acts of the legis- latm-e affecting the subject under consideration. The act of January 24, 1848, entitled "An act fixing the times and places of hokling the district courts in the first judicial district," enacts that the times and places of holding the court shall be, " In the county of Lee, at Fort 406 SUPREME COURT CASES, Trimble v. The State. Madison, on the first Monday in April and first Monday in November ; at the city of Keoknk, in said county of Lee, on the third Monday in February and third Monday in September ; Provided, That the authorities of the city of Keokuk shall provide, free of charge, the necessary rooms for holdiug court at said county (city)." Sec. 2d provides, Tliat "the said district courts in the county of Lee shall have concurrent jurisdiction in all civil causes in said county, except appeals from justices of the peace in the city of Keokuk, and in the townships of Jackson, Des Moines and Montrose." Sec. 3d, That the district court at the city of Keokuk shall have exclusive jurisdiction in all criminal causes, and in all appeals in civil causes from justices of the peace in the said city of Keokuk, and in the townships of Jack- son, Des Moines and Montrose, in said county of Lee." Provision is then made by the act, by w^hich jurisdic- tion in all civil and criminal matters, as by law allowable, (except those arising in the city of Keokuk, Jackson, Des Moines and Montrose townships,) within the county of Lee, is conferred npon the district court to be holden at Fort Madison. The sherifi" and clerk of the district court of the county are required to have offices at both places ; and the former acts of the legislature fixing the times and places for holding the district court in Lee county are repealed. The effect of this enactment is to establish the city of Keokuk as a place for the holding of the district court in Lee county, for the transaction of judicial business within the city and the three townships named, in accordance with the terms therein specified. It is contended by the defendant's counsel, thai: the venire for the summoning of the grand and petit jurors, requiring them to be taken from the city of Keokuk and the townships of Jackson, Des Moines and Montrose, and not from the body of the whole county of Lee, is defective in law, and in derogation of the right of the prisoner. The right of the legislature to divide the county for judi- cial purposes is denied. The judicial power of tlie state BURLINGTON, MAY, 1850. 407 Trimble v. The State. is invoked to maintain the rights of the accused, as guar- anteed by the law of the land, and under the constitution. It is alleged that, by confining the selection of grand and petit jurors, the accused lias been curtailed in his right to have his case submitted to juries made up of qualified voters chosen from the body of the county of Lee, as the venire required that they be taken from the townships of Jackson, Des Moines and Montrose, in the county of Lee. It is clearly the province of the legislature, as it is their duty, to i^rovide for the municipal convenience and wel- fare of the counties of the state in judicial policy. Public economy, as well as private interests, in view of the in- crease of population and business, may justly require change, productive of easement to the community. Judi- cial or other governmental arrangement adapted to the condition of a new state, when population is sparse and business transactions are few and unimportant, may, after a lapse of time, and increase and improvement, prove in- adequate to the wants of the public. When such is the case, it is proper, indeed it becomes necessary, that the law should be changed to answer the demands of popular advancement. To effect this the legislative power may be invoked and exercised. This power is limited, and in a measure regulated, by the constitution of the state. The municipal affairs of the state are to be regulated by the common law, which remains unchanged by legislative enactment, when exercised without violation of the con- stitution. The law in question is confined in its operation to Lee county, and is so far local. Then how does this act of the legislature establishing the two com*ts, and dividing Lee county for judicial purposes stand, in view of the constitution, in its effect upon the rights of the accused ? The constitution of this state provides, " That the right of trial by jury shall remain inviolate." It secures to the accused a speedy trial by an impartial jury. That he shall be informed of the accusation against him, &c. By sec- tion 11th of the bill of rights, it is declared, that "no person shall be held to answer for a criminal offence, unless 408 SUPREME COURT CASES, Trimble v. The State. on presentment or indictment In/ a grand jury ; except in cases cognizable by justices of tlie peace, or arising in the army or navy, or in tlie militia, when in actual service in time of war, or public danger." This being the lan- guage of the constitution, has the accused been deprived of the rights thereby secured to him, by the proceeding in this case ? The record shows that the grand and petit jury consisted of the usual number of jurors, that an indict- ment was found and presented, and that he was held to answer thereto, and tried in the count}^ where the ofience charged was committed, by a court having jurisdiction of the case by virtue of legislative enactment. The supreme law of this state, then, so far has been observed. Since the declaration of rights in 1774, the right of trial by jury has been regarded as the birthright of every citizen. Chan- cellor Kent in his Commentaries, vol. ii., p. 13, observes that " It may bo received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of his freehold, or liberties or estate, or exiled, or condemned, or deprived of life, liberty or property, unless by the law of the land, or the judgment of his peers.'* The learned jurist then proceeds to say, that " the words, by the law of the land, as used in Magna Charta in refer- ence to the subject, are understood to mean due process of law ; that is, by indictment or presentment of good and lawful men, and this, says Lord Coke, is the true sense and exposition of these words." For aught that is apparent of record on this point, the accused was tried by due process of law, the jurors, grand and petit, were his peers of the vicinage, " good and lawful men," possessing the requisite qualifications. They were resident voters of the county of Lee. In this respect, there is no valid objection to cither array. But it is urged that the accused had a right to have a grand and petit jury selected and summoned from the body of the county of Lee, and therefore the venire is defective, being confined in its operation to the townships of Jackson, Des Moines and IMontrose, which BURLINGTON, MAY, 1850. 409 Trimble v. Tlie State. compose only a part of the county. This objection goes directly to the constitutional validity of the legislative enactment, by which the county is divided for judicial purposes ; the venire being in accordance with the S]3irit of that act. The second section of the twelfth article of the constitu- tion is cited as restricting the legislature, so as to invalidate the act establishing the court at Keokuk. By this section it is declared, that '' no new county shall be laid off here- after, nor old county reduced to less contents than four hundred and thirty-two square miles." "We cannot see how this section of the constitution can, by any reasonable construction, be made to apply to the point here raised. Lee county is one of the oldest counties in the state, organized before the constitution was adopted, and is the largest and most populous. The act in question does not reduce, or in any way change it territorially. Its square miles in number are as they were before this act was passed. The act only atfects the internal and municipal organiza- tion and interests of the county. This the legislature had the power to regulate, upon the request of the inhabitants, under the restriction heretofore designated. The townships of Jackson, Des Moines and Montrose, are within the county of Lee, and the jurors having been selected from them, were taken as required by law from the body of that county, and not of another. " The body of the county," is to be considered as expressing the county limit, so as to prevent the selection of jurors residing without the county. We do not understand that the law requires jurors to be taken from every and all portions of the county. If so, by what rule are the fractions or sub- divisions of the county for this purpose designated? The three townships which are set apart for judicial purposes in establishing the court at the city of Keokuk, contain a population amply sufficient for the procurement of a pro- per number of "good and lawful men" to constitute juries for the trial of criminal and civil causes. If, by reason of great excitement or otherwise, prejudice should exist Vol. II. 27 410 SUPREME COURT CASES, Trimble v. The State. against a party, so as to prevent a fair and impartial trial, the statute has provided a remedy by allowing a change of venue to another county. By this act, all previous enactments passed for estab- lishing the times and jDlaccs of holding the district court of Lee county, are expressly repealed in the seventh sec- tion, and all acts providing for the judicial organization of that county with which the act conflicts, are also re- pealed by operation of law. This is not, therefore, an interference with any rights secured to the accused by the provisions of the constitution. There is no constitutional provision which prohibits the establishment of the addi- tional time and place for holding the district court in and for Lee county. The decision of the district court in this matter was therefore correct. But it is contended for the accused, that the court erred in not allowing his challenge for cause to jm'ors who had formed and expressed an opinion. The bill of exceptions shows, that on proceeding to trial several jurors were called to the box, who, being sworn to answer questions touching their qualifications as jurors, answered that they had formed and expressed an opinion as to the guilt or innocence of the prisoner, whereupon the prosecuting attorney having refused to challenge them, they were challenged for cause by the prisoner's counsel, and requested to leave the box. Whereupon the court interposed, saying that it was improper, to make challenges in that way, and ordered the clerk to call the jurors singly, which being done, Peyton Dawson, one of the jurors called, stated " that he had formed and expressed an opinion from the rumor or rejjort he had heard in his neighborhood, soon after the murder was committed ; that he had no acquaintance with the defendant, no ill-will or prejudice against him ; that he had no personal knowledge of the cir- cumstances of the case ; that he had never heard any of tlie testimony or conversed with any of the witnesses; that his opinion was conditional ; that if what he had heard was true, he had formed an opinion ; if what he had heard BURLINGTON, MAY, 1850. 411 Trimble v. The State. was not true, lie had formed none." Six other jurors being examined made the same statement. After this examina- tion by the court, the counsel for the prisoner still urged his right to challenge the jurors for cause. The court overruled the challenge, and decided that the jurors were competent. Whereupon they were sworn in the case, and participated in making the verdict. To this action of the court, the counsel for the prisoner excepted. The right of the accused " to a speedy trial by an im- partial jury," is secured by the constitution. It is there- fore important in this case to ascertain from the record whether the jurors to whom the prisoner objected were " impartial " in the proper legal sense. By examining the origin of the trial by jury, and tracing its history through the progression of civil and political advancement, to the enlightened spirit which pervades civilization at the pre- sent day, we find that reason directed by truth has done much to render it a shield to the citizen against tyranny and oppression ; whilst by it, the observance of law and justice are enforced. It has kept pace with the progres- sion of political liberty. In England, during the reigns of James I. and Queen Anne, it was questioned whether an offender charged with a capital felony was entitled to examine witnesses on oath in his favor. In the seventh year of the reign of William III., witnesses were first allowed to prisoners on trials in certain cases. In the first year of Queen Anne, the right was extended to all cases of treason and felony. 4 Black. Com., 360. Counsel was not allowed to the prisoner in case of high treason till the seventh of William III. It is a feature of English jurisprudence now, that where a man is indicted for a capital felony, he is not allowed counsel on the ques- tion of guilty or not guilty. But strange as these facts may seem to us in the United States at this day, they are scarcely more so, when properly considered, than that at this period of the world, the English judiciary should declare that a juror who had formed and expressed au 412 SUPREME COURT CASES, Trimble v. The State. opinion against a prisoner at the bar for trial, should not be challenged for that cause. In that country, and others similarly constituted in government, where kingly power still is struggling against the light of justice, and the liberty and equality of man as a citizen; where the government is enthroned above and against the people, and made by law independent of their will, such a doctrine might not seem strange. In this country, however, such is the spirit of our national and state constitutions and our statutes, that the citizen stands for security on a highor and more certain position to maintain his rights when arraigned before his country's tribunal. In this country, the protection and elevation of the citizen is the strength and security of the government. In disposing of the question before us, we will then be governed by the light of American decisions, which best accord with the spirit of our constitution. Then, is it good cause for a principal challenge to a juror, in a capital case, that he has formed and expressed an opinion as to the guilt or innocence of a prisoner on trial, when that opinion has been formed on facts gathered from rumor, and believed by him so as to bring his mind to a con- clusion on the subject? In the case of Tlie People v. Ver- melyea, 7 Cowen, 121, the learned judge who delivered the opinion of the court says : " It is admitted that every citizen whether arraigned for crime or impleaded in a civil action is entitled to a trial by a fair and impartial jury. The trial by jury is justly considered an invaluable privilege, but it would become a mockery if persons who had prejudged the case were admitted as impartial triers. All the elementary writers with the exception of Chitty lay down the proposition broadly, that if a juror has declared his opinion beforehand, it is a good cause of challenge. 1st Archbold, 181, 182. 2d Tidd, 779, 780. Bacon, (title Juries E.,) 5. Bull,K P., ;J07. Lord Coke (1 Com. on Lit., 155, 156) says : " He ought to be least suspi- cious, that is, to be indifferent, as he stands unsworn, and then he is accounted in law liber et legalis homo : other- BURLINGTON, MAY, 1850. 413 Trimble v. The State. wise he may be challenged and not suffered to be sworn ," and he proceeds to consider what is meant by standing indifferent: "manifestly that the mind is in a state of neuti-ality as respects the person and matter to be tried ; that there exists no bias for or against either party in the mind of the juror calculated to operate on him ; that he comes to the trial with a mind uncommitted, and prepared to weigh the evidence in impartial scales." In the case cited, it is true that the opinion of Norwood, the juror, was formed from hearing the testimony on a former trial, not from rumor, as in the case at bar. But the ground upon which he was held to be incompetent by the supreme court was, that "he stated that, if the evidence on the second trial should be the same as on the first, he should pro- nounce them guilty." The point is this, that the mind of the juror was so prepossessed as to the case of the prisoner by what he had heard, that a conclusion was formed, to remove which other and stronger facts and circum- stances must be presented with such irresistible force as to compel him to yield his position. We cannot perceive much difference between a juror who has formed an opinion from the hearing of the evidence on a former trial, and one who has formed it from a recital of the circum- stances of the case as established by rumor. In both cases the facts are heard and believed, the mind prepos- sessed, and an opinion formed against the accused so con- clusively, that it is expressed and published abroad. A man of fii'mness and decision of character, who has thus brought his mind to a conclusion, and expressed his opinion upon the facts of a case when not sworn as a juror, will not be likely to chauge that opinion when acting under oath, unless the evidence adduced on trial be so entirely different from the facts by him learned and acted upon, that he will be forced to it. Can such a juror be " wvpartiaV in the sense of the constitution ? Is he more open to conviction, less biased, and better prepared in mind to hear, weigh and fairly determine upon the case anew, than the man who stood by a former hearing, and 414 SUPKEME COURT CASES, Trimble v. The State. heard the evidence ? In view of the constitutional right of the accused, and of sound reason, if the one be incom- petent to act as a juror, the other is also. The courts have in this country decided that a juror wlio had tried a cause once would be incompetent to act as such upon a second trial. 1 G. Greene, 534. Upon a review of the various decisions upon this and assimilated points, we hold it to be a good ground of chal- lenge for cause to a juror, that he has formed and expressed an opinion on the question in controversy between the parties to a suit. In cases capitally criminal, this prin- ciple should be the more strictly observed. Blake v. ]\[iUs- paugh, 1 John., 316; Pringle v. Hughes, 1 Cowen, 432; Commonwealth v. Knapp, 9 Pick., 499; The People v. Rathbun, 21 Wend., 542; The Commormealth v. Rvggell^ 16 Pick., 153; The People v. Bodine, 1 Denio, 281. Much reliance is placed on the fact that the juror, after stating that he had f(^rmed and expressed an opinion, upon being examined further by the court, added, " that if Avhat he had heard was true, he had formed to opinion ; if what he had heard was not true, he had formed none." It is urged that his opinion was merely hypothetical ; and this being the fact, that he stood indifferent. We are aware that decisions to this effect have been made by courts entitled to high respect. But none of these cases will meet the one at bar. Here the juror had expressed a positive opinion. It does not appear to have been hypothetically expressed. That expression must have been based upon an opinion previously formed. This explanation merely amounts to a qualification, which all will admit who have formed opinions upon what they have heard ; that is, if what they have heard should not prove true, their opinions might be changed. The juror who has previously formed and expressed an opinion upon the merits of the case, can- not, when he enters the box, stand there indifferent, though that opinion be conditional or hypothetical. It is clear that the task of removing his mental bias must devolve upon the party against whom it exists. He is not free BURLINGTON, MAY, 1850. 415 Trimble v. The State. and uncommitted. An unconstitutional, unreasonable and therefore illegal condition, is imposed upon tlie party whose case has been thus prejudged. He must labor under a burden from which his adversary is free. This is at variance with the spirit of our institutions. The allegation of inconvenience to judicial procedure in the procurement of jurors in cases like this, where the public mind becomes excited, insomuch that the minds of citizens are liable to be aifected by rumor, cannot be received as a reason for dispensing with the observance of a right secured and made sacred by the constitution, and which is of vital importance to the citizen. They who are in this day of civil and religious light and liberty called to make and execute the law, should not turn back to minister to the improprieties of mankind, but rather to hold the standard of the constitution and the law up to its true elevation, that the citizen may see it and be raised to it. If difficulty should occur in the procurement of jurors who will stand on the trial indifferent or impartial, the law has wisely provided for such a case, by allowing a change of venue. Judgment reversed. Dissenting ojnnion by Kinney, J. Agreeing as I do with the court upon most of the points decided in this case, yet I am compelled to dissent from the decision upon the constitutional question which is here presented. A decision upon this question was not necessary ; the other points raised by the bill of exceptions being well taken, a reversal of the case was inevitable. As a decision upon the constitutionality of this extraordinary legislative act is one of deep interest to the citizens of this state, it is with me a matter of regret that so important a question should be decided against the rights of the citizen unless absolutely necessary, and then not until after full argu- ment and the most mature reflection. The consequences of such a decision are to my mind most alarming, A wide door is opened for the legislature of this state to 416 SUPREME COURT CASES, Trimble v. The State. divide every county for judicial purposes, and restrict tlie selection of grand and petit jurors to a particular town- ship, village, neigliborhood or ward. Is the constitution of Iowa so dissimilar to other constitutions? Is it so regardless of those great fundamental principles of civil liberty which have, ever since the formation of written constitutions, secured to the citizen an impartial trial by a jury of his peers? Does it repeal that clause in the ordinance of 1787, held in such high veneration by all jurists ; and is it possible that rights so sacred are to be enjoyed at the will and mercy of a legislative body? As I understand the constitution, such is not the case. The power contended for by the court has not, in my opinion, been delegated to the legislative branch of the government. I do not hesitate to say that the legislature may, for the convenience of the people of a particular county, pass a law by which the courts may be held in different places in the same county ; but when they attempt to confine the selections of jiu-ors within geographic limits less than the entire body of the county, they are assuming powers which are not conferred by the instrument which created them. The constitution provides, " That no person shall be held to answer a criminal offence, unless by presentment or in- dictment by a grand jury," &c. What was 'here intended by the framers of that instrument ? A body of men selected from a particular locality, or confined to a prescribed ton^n- s/np, to the exclusion of all the other townships of the county ? A grand jury I have always understood to be a number of men, not exceeding twenty-three, selected in such manner as should be prescribed by law, from the body of the county, and the body of the county is the county at large, over which the court has jurisdiction. But the con- stitution \vc:\ defined the extent of each county formed or to be formed in the state by providing that no new county shall be laid off hereafter, nor old county reduced to less con- tents than four hundred and thirty-two square miles. The act of the legislature clearly violates the spirit and evident BURLINGTON, MAY, 1850. 417 Trimble v. The State. intention of this clause of the constitution. Three town- ships are constituted by the law a county for judicial pur- poses, which in territory are less than one-fourth the area prescribed by the constitution. Grand and petit jurors are to be selected from these townships alone ; indict- ments found and returned, individuals tried and sentenced, and judgments rendered upon verdicts of jurors thus selected. The entire jurisdiction of the court is as com- pletely and perfectly confined to the three townships as it is to any county over which the court may preside. True it is that the legislature do not attempt by name to organize a county out of the townships of Jackson, Des Moines .and Montrose, nor give them a name and place among the counties of the state as a separate county organization, for this would be so flagrant a violation of the letter of the constitution that it would strike the mind of every person as utterly incompatible with the provisions of that instru- ment. But the result in the administration of justice is the same, and the constitutional rights of the citizen no less infringed than if such a separate county organization had been efi'ected. The county is practically reduced to a less number of miles than the constitutional limits, and the legislature are permitted by the decision to pass laws which in effect produce the same results as would that legislation which the constitution directly and in un- equivocal terms forbids. The venire for the grand jury, instead of being co-exten- sive with the county of Lee, is confined to three townships, and when the sheriff oversteps these township lines for the purpose of serving his writ, he is as much out of his juris- diction • as though he were in another county or state. According to the construction given the law, a juror sum- moned from another township is no more entitled to a seat in the jury room, although he resides in the same organized county, than if he had been summoned from the adjoining state of Missouri. The law provides that the grand and petit jurors to serve at the district courts held at Keokuk shall be selected from 418 SUPREME COURT CASES, Trimble v. The State. the townships of Jackson, Montrose and Des Moines, and that grand and petit jurors to serve at the district courts held at Fort Madison in said county, shall be from the remarining townships in said county, and no other. The 2d section provides that the number of grand and petit jurors for each division of the district court, and the manner of ascertaining the proportion to each township, and of giving notice thereof, returning, drawing, &c., shall be the same for each division of said courts or districts, as though they were separate counties. Thus the legisla- ture in express terms makes each division of the county as com]3lete andperfect for judicial purposes as is any con- stitutional county within the state. If the legislature pos- sess under the constitution this power, then indeed have the people unconsciously, by theii" state organization, yielded up some of their dearest rights ; and the constitution, in- stead of proving a blessing and protection, has left the door wide open for legislative oppression. If the legisla- ture have the power to form three townships into a county for judicial purposes, confining the selection of grand and petit jurors to those townships, then they have the power to embrace in a similar law only one township ; and if one township, then a particular school district. Thus an in- dictment, instead of being indicted by impartial jurors, taken from the 6od^ of the county^ may be indicted by those selected from his immediate vicinity, and the in- dictment found under the influence of excitement, pre- judice or malice. The accused may be imprisoned upon the indictment to await his trial, and in this way un- justly deprived of those natural liberties which the con- stitution, it would seem, has vainly attempted to protect, and in the enjoyment of which he would have been secure, had the grand jury been taken from the county at large. If the legislature possess the power contended for by the court, then that power is unlimited, and may be exer- cised over the smallest extent of territory in ^very county within this state. BURLINGTON, MAY, 1850. 410 Trimble v. The State. But there is another, and, if possible, more formidable, constitutional objectiou to this law. Tlie hiw provides that the district court at the city of Keokuk shall have exclusive jurisdiction in all criminal cases, and in all appeals in civil causes from justices of the peace in the said city of Keokuk, and in the townships of Jackson, Montrose and Des Moines, in said county of Lee. This legislation is both local and partial. The subject matter of the law is general and universal, and should be made so in its application. A law by which the citizen is to be tried for crime should be general, bringing within its corrective influence all the citizens of the state alike, and not partial and limited in its operations. Justice should be dispensed from all portions of the state from the same pure fountain. The individual who is indicted and tried in Lee county, ought to be indicted and tried by the same general law as the one in Dubuque county, and entitled to the same privilege and protection. All this is impossible under the law in question. While the citizens in all the other counties of the state, before they can be made to answer to a criminal charge, must be indicted by a grand jury selected from the body of the county, those of Lee are compelled to submit to a prosecution upon an indictment found by a grand jury taken from three town- ships of the county. While the venire for the petit jury to try those charges is co-extensive with the county in every other county of the state, in Lee it is absolutely confined to the geogi-aphical limits of certain designated townships. Hence law and justice are administered in Lee county in one way, and in the other counties composing the same judicial district in another way entirely dissimilar. Section 6 of the bill of rights provides that " all laws of a general nature shall have a uniform operation." The act passed by the legislature is of a general nature. It provides for the selection of grand and petit jurors, by which persons are to be tried for the highest crimes known to our laws. Instead of bein"' uniform and universal in 420 SUPREME COURT CASES, Warburton v. Lauman. its operation upon all the citizens of the state, it is made local and partial, confined to the townships of a particular county. Suppose the legislature had passed a law by which the crime of petit larceny should be punished in the county of Lee by imprisonment in the penitentiary, while in all the other counties it was merely punished with confine- ment in the county jail, could it admit of a doubt but that this act would be contrary to the plain and express provision of the constitution ? I cannot think that such a law would be more obnoxious than the one in question. And it may well be doubted whether the act providing for this new and extraordinary mode of proceeding, does not infringe upon that clause of the constitution which declares "that the right of trial by jury shall remain in- violate." It appears to me, that this not only secm'es the right of trial, but that every citizen shall enjoy that trial according to those great distinctive features which have not only always characterized a jury trial, but which are essentially necessary to the enjoyment of the right so secured. J, C. Hall^ for plaintiff in error. Hollman and Stephens, for the state. > * • > t WARBURTON et al v. LAUMAN. Where in a mortgage a lot was by mistake designated as 18 instead of 8, and was correctly described in a subsequent mortgage, which was executed subject to the first, with notice of the mistake; held that the first mortgage should attach to lot 8, and be regarded as senior to the sub- sequent mortgage. In equity, mistakes in a deed will be corrected, as against subsequent pur- chasers with notice. Notice to an acknowledged agent is notice to his principal. BURLINGTON, MAY, 1850. 421 Warburton v. Lauman. Although contracts cannot be changed, they may be corrected so as to en- force the intention of the parties. In Equity. Appeal from Henry District Court. Opinion hy Kinney, J. Lauman filed a bill in the dis- trict court of Henry county against Albert Button et al., to foreclose a mortgage on lot 8, block 4, in tbe town of Salem, in said county, wliich was executed by Button, as is alleged, by mistake, on lot 18, block 4, instead of lot 8, as was intended by the mortgage, and claiming priority over a junior mortgage to Warburton, Rossiter & Co., on the lot intended to be conveyed to said Lauman, but which was subsequently mortgaged to said Warburton, Rossiter &Co. The bill alleges that Button, on the 8th of January, 1848, became indebted to Lauman in the sum of $500, and on that date gave his note for the same, payable May 1, 1848; that he executed a mortgage by agreement to secure the payment of said note, intending to mortgage lot 8, block 4, in the town of Salem ; that Button owned said lot at the time, and resided upon it as his homestead, and by mis- take and accident, the property was described as lot 18, in block 4, instead of lot 8, as it should have been; that there is no such lot as 18 in said town of Salem. That afterwards, on the 10th of January, 1849, said Button being indebted to Warburton, Rossiter & Co. in the sum of $912.50, and being called upon to give security for said debt by James Livingston, acting as agent for said firm, Baid Button and wife executed a mortgage to said firm on said lot 8, block 4, subject to the mortgage of said Lauman, as is expressly mentioned in the mortgage to them. That said Livingston had full notice of Lauman's debt and mortgage, supposing it to be on lot 8, block 4 ; and said Livingston accepted the mortgages to Warburton, Rossiter & Co. with such notice, and with the understand- ing that Lauman's mortgage was a prior lien. That all parties were ignorant of the mistake until both mortgages had been executed, and Lauman's recorded. 422 SUPREME COURT CASES, Warburton v. Lauman. The answer of Button admits the indebtedness to Lauman, giving the note of |500, and the security for the same by mortgage. That the consideration for the in- debtedness was a stock of goods, and that Button pro- posed to give a mortgage on his brick house and lot as an inducement for the credit. That when he went to pur- chase said goods, he took with him the title deeds by which he held the lot, which was known and described on the plat of said town as lot 8, in block 4. That respondent, after the purchase of said goods, executed his note, and the deed was given to one Fayrweather, with instructions to make out a mortgage from said respondent to said Lauman. That said mortgage was drawn up and acknow- ledged, and deposited for record. Respondent further states, that on the 9th or 10th day of January, 1849, one J. M. Livingston, a clerk and agent of said Warburton, Rossiter & Co., applied to him to give said firm a mort- gage on said lot 8, in block 4, to secure the debt due them, which respondent at first refused, on the ground of Lauman's prior claim, and informing Sjaid Livingston that he had previously executed a mortgage to said Lauman on said lot, being the brick house and lot occupied by respondent, to secure the sum of $500, which was then due and unpaid; and that said house and lot were not of sufiicient value to secure both debts. Respondent at length yielded to the solicitations of said Livingston, and on the 10th day of January, 1849, executed the mortgage in said bill mentioned, alluding in said mortgage to Lauman's prior mortgage. That at the time of executing the mortgage to Lauman, he did not, nor has not since, owned any other real estate in said town except the lot aforesaid ; and he informed said Livingston that lot 8 was the lot on which he resided. Respondent further said, 'that he did not discover the mistake made in the mortgage to Lauman until after he executed the one to Warburton, Rossiter & Co. ; and that he first learned of the error in the mortgage to Lauman by Livingston informing respondent that he discovered BURLINGTON, MAY, 1850. 423 W'arburton v. Laumaii. the mistake when lie went to put his mortgage upon re- cord. The answer of Rossiter & Drake acknowledges igno- rance of the transaction between Button and Lauman, and of the alleged mistake in the description of the property in the mortgage to Lauman. They admit the indebted- ness to be correctly stated in the bill ; admit the receiv- ing of said mortgage to secure such indebtedness by Mr Livingston, their clerk and a(/ent, but deny that they knew of any mortgage to complainant, or had any knowledge of any equitable lien by him on lot 8, in block 4. That they cannot tell precisely what knowledge Livingston may have had when he accepted the mortgage from Button to them. That they reside in St Louis, and are personally ignorant of the matters charged in the bill. They insist that they are bona fide mortgagees without notice of any prior in- cumbrance. That if all the matters in the bill are true, that the complainant is not entitled to any relief as against them, but that the mortgage to Warburton, Rossiter & Co. is entitled to priority of satisfaction out of the lot of ground thereby mortgaged. The cause was tried upon the bill, answers, exhibits and testimony, and a decree rendered in favor of Lauman for §579 ; also correcting the mistake in the mortgage from Button to him, so that it should be treated in all respects as a mortgage on lot 8, in block 4 ; also that said mortgage from Button to Lauman have priority over the mortgage from Button to Warburton, Rossiter & Co. That the equity of redemption to said lot be foreclosed, and that the sheriff sell the same, and apply the proceeds thereof : first, to the payment of costs ; second, to the satisfaction of the debt to Lauman ; and the residue, if any, to be paid into court, subject to the mortgage of said Warburton, Rossiter & Co. We think this an equitable decree. Button confesses all the charges in the bill, and the correctness of the decree as against him cannot be questioned. Was the mortgage to Lauman entitled to priority over the one from Button 424 SUPREME COURT CASES, Warburton v. Lauman. to Warburton, Rossiter & Co.? If the respondents took their mortgage with a notice of Lauman' s prior equitable right, the doctrine is well settled, that it must be held subject to such prior equity. That their acknowledged agent had such notice, the record and testimony abun- dantly establish. Livingston was not only informed of the fact by Button, but in the mortgage to the respond- ents, the prior mortgage is referred to in express terms. This recital in the mortgage of a prior incumbrance is of itself notice of such incumbrance. Livingston was acting in collecting and securing the demand against Button as the authorized and acknowledged agent of respondents, Warburton, Rossiter & Co. His acts, while within the sphere of his agency, were the acts of his principals. No- tice to him was notice to those for whom he was acting. But even if this were not so, the reference of a prior exist- ing mortgage in the conveyance would be sufficient to charge the purchasers. 2 Powell on Mortgages, 573 and notes. But notwithstanding this notice, and that respondents received the mortgage with the understanding and expect- ation that it was to be subject to the prior one to Lauman, yet as no such prior one did in fact exist on the lot mort- gaged to Warburton, Rossiter & Co., therefore it is said the latter must take priority. This would be true if it had not been the bona fide intention of Button to have mortgaged lot 8, and Lauman to have received a mort- gage on said lot, and if the mistake in the description had not been entirely unintentional. But it is the especial prerogative of courts of equity to correct such mistakes, and not only to carry out the intention of the parties when fully understood, but to place them as near as pos- sible in the position which they assumed to occupy at the time of the contract. Could Button have taken advan- tage of this mistake ? if not, is Lauman' s equity less be- cause his mortgagors, with full notice of the equity, attempt to do so ? What did they expect to gain by the convey- ance ? Most certainly nothing more than a junior incum- brance. Would it be equitable to give them more at the BURLINGTON, MAY, 1850. 425 Warburton v. Lauman. sacrifice of an equitable interest which, beyond all ques- tion, did exist at the time of their conveyance, and to which they had a direct reference at the time they re- ceived it. The error in the deed was not the fault of Button or Lauman, but the mistake of Fayrweather, who drafted it. As appears from the record, both parties supposed that tlie lot was numbered correctly in the mortgage. Lot 8 was clearly intended to have been conveyed. Button owned no other lot in Salem. Livingston first discovered the mistake in the mortgage to Lauman, and in a letter to Button, which is made an exhibit in the case, speaks of the '' mortgage on lot 18, instead of 8, as it should be," So that the misdescription of the lot is not only fully shown to have been a mistake, but it is recognised and admitted as such by the agent of Warburton, Rossiter & Co. Will courts of equity relieve such mistakes against sub- sequent purchasers for a valuable consideration, if such purchaser had notice of such prior equitable incumbrance, and there is a mistake ? The following authorities clearly establish the affirmative of this proposition. 1 Story's Eq., 179, 165 ; 2 Pow. on Mortgages, 532, note a and e; 1 John. Ch., 300; 3 Pier Williams, 307; 1 Maddock Ch., 65. In the case of Governeur v. Titus, 6 Paige, 347, the owner of the north-east corner of a lot of land sold the same, but by mistake described it as the north-west corner of the lot, (belonging to another person,) and the pur- chaser afterwards sold the same, and made the same mis- take in his deed. Subsequent to this conveyance a judg- ment was obtained vs. the first grantor, and the kind intended to have been conveyed purchased on such judg- ment by the judgment creditor, at which time the mistake in the deed was discovered, and the purchaser had notice thereof. A, the fii-st grantor, and B, who had conveyed to C with the same mistake in the deed, then joined in a new conveyance or deed of confirmation to C, in which the premises were correctly described. The alleged mistake Vol. IL 28 426 SUPREME COURT CASES, Warburton v. Lauman. being fully establislied, and the sheriff's deed not having Leeu made to the purchaser upon execution, the court dis- charged the premises from the lien of the judgment, and granted a perpetual injunction against the claim of the purchaser under the judgment. Courts of equity will ever, unless the transaction is tainted with fraud, relieve all such errors of fact against subsequent purchasers, with notice of antecedent intended conveyances. In the above case the judgment was obtained without notice, Avhich became a lien upon the premises intended to have been conveyed, but as the purchase upon execution was made with notice, the lien was properly set aside, and the deed enjoined. " A written agreement may contain more or less than the parties intended, or something different from their intentions. These mistakes may happen either from carelessness on the part of the draftsman, or ignorance as to the legal or proper mode of executing the instrument. In either case, when made out by proofs entirely satisfac- tory, equity will reform the contract so as to make it con- formable to the ijrecise intent of the parties." While courts of equity will not make new contracts for parties, or change them from their original intention and purpose, yet they will reform and correct such contracts, not only as between the parties, so as to carry out their intention, but as against subsequent purchasers with notice. It is the intention of the parties that will prevail in courts of chancery, in preference to the mere act, when by that act the object of the parties could not be attained. By carrying out the intention of Button and Lauman, by reforming Lauman's mortgage, (in order to do so,) Warburton, Rossiter & Co. are placed in no worse position than they supposed at the time they obtained their deed. They secured their mortgage with the express understand- ing that it was to be subject to Lauman's prior equity ; and as that equity actually existed, to give theirs priority would be, not only to defeat the intention of the parties in giving and receiving it, but would be equivalent to making a new contract for them. BURLINGTON, MAY, 1850. 427 Price & Co. v. Alexander & Co. Pure equity cannot be meted out to Warburton, Ros- siter & Co. , except by giving priority to Lauman's incum- brance, as, if the mortgage to W., R. & Co. is to be first satisfied, they obtain more than they stipulated for in the deed from Button to them. Hence, by giving Lauman's mortgage priority, equal and exact justice is done to all parties. They are placed by such decree in the position they assumed to occupy at the time the respective conveyances were executed. Decree a£Qxmed. J), Rorer, for appellants. Grimes and Starr and Morton^ for appellee. PRICE ;cs. Price & Co., for the privilege of having- their Avhaif boat at the wharf of Alexander & Ce»., and for half the receipts of their storage business, stipu- late to i)ay them a sum equal to one-half of their nett receipts from the storage and forwarding business, and also a bonus of $25 for all business they might transact by the storage of emigrants' furniture, &c. Under the analogies of the foregoing cases, it may be well doubted whether this agreement would constitute a partnership as to third parties ; but obviously, as between themselves, inter se, the relation of co-})artners never was contem- plated. The one party had no right, control or manage- ment over the business of the other, nor incurred either loss or liability. In order to constitute a partnership, inter se, there must be a sharing in losses as well as in profits. In Vandei'burgh v. Hull,, 20 Wend., 70, such were considered the indispensable requisites to any part- nership; and in Lcutry v. Brooks, 2 M'Cord, 421, where there was no mutual interest in the capital invested, and no stipulation for mutual loss, it was not considered a co- partnership. Chancellor Walworth, in Chase v. Barrett, 4 Paige, IGO, decided '' that to constitute a partnership, as between the i)arties themselves, there must be a joint-own- ership of the partnership funds, according to the intention of the parties, and an agreement, either expressed or im- plied, to ])articipate in the [jrofits or losses of the business, either rateably or in some other proportion to be fixed upon by the co-partners." Ap})ly this test to the contract in this case, and it will be obvious that no partnership subsisted between the parties. It was manifestly the in- tention of the parties that no such association should exist between them. It Avas an arrangement in which benefits were to be realized by one firm from the other, and conii)ensation conferred in proportion to the profits of a particular branch of their respective business operations; and, unlike a partnership arrangement, the one party was expressly excluded from any participation in the business 432 SUPHEME COURT CASES, Price & Co. v. Alexander &'Co. of the other, contributed nothing, and incurred no loss. The stipulations in the agreement, its qualifications and guarded phraseology, are repugnant to essential elements of a partnership inter se, and show that it could not have been contemplated by the parties. Judge Storj-, in his work on Partnership, § 30, saj's : "It may be laid down as a general rule, that in all such cases no partnership will be created between the parties themselves, if it would be contrary to their real intentions and objects." We conclude, then, as between the parties, that no partnership existed, and therefore the agreement, in that respect, was admissible in evidence. 2. The agreement was next objected to on the ground that it was not a contract between the parties to this suit, as one member of a firm cannot bind his co-partner under seal. This rule, in its general application to common law proceedings, cannot be disputed. But, originating chiefly from technical reasons connected with the doctrine of agency, it has been considerably relaxed by recent deci- sions, in order to accommodate the advancement of com- mercial intercourse, and the exigencies of business associ- ations. It now appears to be well settled that a sealed instru- ment made by one partner in the name of the firm, is binding upon his co partners who assent to the contract before its execution, or subsequently adopt it either by parole or other evidence of ratification. Cad^ v. Shepherd, 11 Pick., 405 ; Clement v. Brush, 3 John. Cas., 180 ; Bond V. 'Ailkin, 6 Watts. & Serg., 165. In Swan v. Stedmdn, 4 Met., 548, it was held that the adoption of such an instru- ment might be shown by mere silent assent thereto. It now remains to be seen whether John Rivereau, of the firm of A. Alexander & Co., and Silas Haight, of the firm of Joseph Price & Co., have sufficiently assented to and adopted the instrument signed by their respective partners in the company names. So far as Rivereau is concerned, the simple fact that the suit was brought in the partnership name, amounts to a sufficient adoption of BURLINGTON, MAY, 1850. 433 Price & Co. v. Alexander & Co. the instrument on his part, and precludes the defendants from denying his participation in its execution. Dodge V. McKay ^ 4 Ala., 346. In relation to Haight, it appears hy the hill of exceptions that the plaintiffs below intro- duced him as their witness, and among other things proved by him, that the firm of Joseph Price & Co. con- sisted of said Price and himself; that after said agreement was drawn up, it was shown to him, and he assented to its correctness, and was satisfied with its provisions, and that under it the respective parties went on and transacted business. That this amounted to a full sanction and rati- fication of the agreement by all the parties, cannot, we think, be questioned. Again^ it appears by the testimony of Haight, that the said firms were engaged in the storage, forwarding and commission business at the time the contract was entered into, and it may therefore be very correctly regarded as within the scope of their commercial dealings, as an agree- ment which would have been equally binding upon the parties without a sealed or even a written instrument. It could not, consequently, be vitiated by the addition ot a seal. 1 Brock., 456; 3 U. S. Dig., 393, § 26 ; Deckard V. Case, 5 Watts, 22. In Tapley v. Butterjield, 1 Metcalf, 515, it was held, that one partner has authority, without even the knowledge of his co-partner, to mortgage the whole stock in trade, to secure a particular creditor of the firm ; it was also held, that the rule that one partner can- not bind his co-partner by deed, does not prevail when he thereby conveys property of the firm which he might have conveyed without such deed ; and hence it was concluded by the court, in that case, that the sealed mortgage of the goods executed by one partner in the name of the firm bound both of them, and constituted a valid lien upon the property. These authorities show to what extent the rule in question is relaxing in its adaptation to business opera- tion, and they also support the conclusion to which we have arrived in this case, that all the parties to this suit became parties to, and were held by, the instrument in question. 434 SUPREME COURT CASES, Price & Co. v Alexander & Co. 3. Evidence was given by the defendants below, show- ing that the plaintiffs, after the contract was entered into, ceased to do business as forwarding and commission mer- chants, and that in consequence the defendants had been obliged to hire additional hands, and also that by virtue of a city ordinance, they had been compelled to pay $47 wharfage. In relation to this evidence, instructions were given, to which objections are urged. We have carefully examined the several instructions, as given, refused or qualified by the court, and can see nothing that will justify a reversal of the proceedings. Upon the first branch of the evidence the jury were instructed, that if plaintiffs abandoned the contract before any violation thereof by the defendants, that they also had a right to abandon it on their part, pro- vided the abandonment of plaintiffs was not by their con- sent or at their request. They were also instructed, that if the plaintiffs neglected to perform their part of the con- tract, in consequence of which the consideration of the agreement failed, they could not recover. Tliese instruc- tions, we think, comprise all that was material for the defendants below, and all they should requii'e in a just sub- mission to the jury, or in a fair adjudication of theu* rights. Upon the other point, the court insti'ucted the jury that if, after the contract, an ordinance was passed creating a liability on either party, by way of taxation or license, and if the parties still continued to act under the contract as they did prior to the passage of such ordinance, it could not be set up in avoidance of the contract. We think the plaintiff" in error has no reason to complain of this instruc- tion. It is stipulated in the contract, that it should not interfere with any ordinance that might be passed rela- tive to the landing, the wharf, and wharf boats. It appears, then, that such ordinances were anticipated when the agreement was entered into, and still the parties agreed that they should respectively conduct their own business, at their own expense, and sustain their own losses. Any tax for license upon the business of either firm would come BURLINGTON, MAY, 1850. 435 Greenough v. Wiggington and Wife. under the denomination of expenses, which, according to the agreement, shouhl be defrayed by the party incurring tliem. And agreeable to the instruction, if the party vol- untarily continues in the transaction under such additional expense, it shows an acquiescence in it, which will prevent an avoidance of the contract. It is true that a portion of the special instructions asked for in this case might have been given with propriety, but as the substance of those special instructions were included in those of a more general character, there was no impropriety in refusing them. Gentry v. Borgis, 6 Blackford, 261. Judgment afidi-med. J. C. Hall, for plaintiff in error. W, J, Cochran and C, E. Stone, for defendants. • > ••• < GREENOUGH v. WIGGINGTON AND WIFE. Where the husband and wife jointly contract for the erection of a building on the land of the wife, a mechanics' lien under the statute may be en- forced aiiainst the property. In a proceeding for a mechanics' lien, rules both of law and of equity are authorized. Law and equity act in concert, so far as general personal engagements of man and woman are concerned. Generally a debt contracted by a woman during coverture is prima facie evidence to charge her separate estate. Erkor to Des Moines District Coxjrt. Opinion by GtReene, J. Bill filed by the plaintiff against Wiggington and wife for a mechanics' lien. The bill shows that the defendants, during coverture, made a contract with the plaintiff for the erection of a house upon 436 SUPREME COURT CASES Greenough v. Wiggington and Wife. a lot in the city of Burlington ; that the lot was owned by Ann Wiggington before her marriage, and still belonged to her ; and that the house was completed according to contract, but that payment had not been made. To this bill the defendants filed a demurrer, which was sustained by the court below. In support of that decision, it is now urged that the wife is not bound by any contract made during coverture, and that her title to the land cannot be incumbered by a mechanics' lien under such contract. Upon a superficial view this position would appear plausible ; for, as a gen- eral rule, feme coverts cannot make valid contracts which courts of law would enforce against them. But to this rule there are exceptions, even upon common law prin- ciples, besides those which are interposed by statute. This action was commenced under om- statute relative to mechanics' liens, and is authorized on all contracts made between the owner of any tract of land or town lot, or the lessee thereof, with the owner's knowledge or con- sent, on the one part, and any person on the other part, for furnishing labor or materials to erect or rejjair any house, mill, or machinery. The contract, as set forth in the bill at bar, was not only made with Ann, the separate owner, but also with her husband, who could claim no greater right than a lessee, entitled to rents and profits for life, and the building was erected, not only by the con- sent, but by the direct agency and procurement of both, and for the especial benefit of the wife's separate estate. All who were interested in the lot participated in the contract, by which the value of the land was greatly en- hanced at the expense of the plaintiff. In all such cases the statute clearly provides a lien to the party fm^nishing the labor and materials, without any reference to the sex or condition of the party owning the land. The husband and wife had the power to sell the real estate by joint conveyance. Stat, of 1846, p. 4, § 4. Nor would their power to incumber the estate by mortgage be questioned. How then can it be doubted that they had BURLINGTON, MAY, 1850. 437 Greenough v. Wiggington and Wife. power to make contracts by which the land would be lield responsible for improvements made upon it ? The right of a married woman to own and possess real estate as of her own property, is expressly acknowledged by statute. Whether she acquire the title before or after coverture, " she shall," in the language of the law, '' possess the same in her own right." Laws of 1846, p. 4, § 2. True the control and management, the annual productions, rents and profits, go to the husband as at common law. But all suits affecting the property or pos- session must be prosecuted or defended in the joint names of the husband and wife. To carry out the spirit of this act, it must follow that the title to the land can only be affected by contract with the wife as well as the husband. And althougb expressly released from all liability to the debts of the husband, it by no means follows that it is released from the debts of the wife when contracted jointly with her husband for the purpose of improving her separate estate. The statute of this state does not materially enlarge the rights of married women in equity, but it gives them the same powers and privileges at law over her estate which before could only be asserted in a court of equity. If, then, this suit should be regarded as a proceeding at law, the principles of equity applicable to a wife's separate property might have a controlling influence in deciding this case. But it is something more than a proceeding at law. The very object, the form and the result, of the action, show it to be assimilated to chancery jurisprudence. The act authorizes the filing of a bill or petition as in chancery, but to secure a more speedy trial, directs the case to be docketed on the common law appearance docket ; and that the same rules of evidence shall be observed as in suits at law. At the same time it requires the court to " give judgment according to the justice and equity of the case," and not according to the strict rules of law. The obvious intention of the legislature then was, to give an easy, cheap and sure remedy to that class of commuDity 438 SUPREME COURT CASES, Greenough v. Wl2;2:ins:ton and Wife. for whose benefit the law was passed, by extending to them all the facilities of common law evidence without the delay and expense of taking depositions, and extends, at the same time, all the liberal and appropriate rules of equity. In deciding this case, then, we are authorized to go beyond the strict rules of law, and appeal to chancery principles in order to arrive at " the justice and equity of the case." Law and equity act in concert so far as general personal engagements of married women are concerned. Such contracts cannot affect their separate property. But as a necessary result of the principle that a married woman may take and enjoy property to her separate use, equity enables her to deal with it as Si feme sole. Such an interest and power, whether recognized in a court of chancery or created by statute, produce, as an incident, the right of disposition or appointment ; the power to sell, pledge, or incumber her separate estate. And it is only necessary to have her intention to sell, pledge or incumber her estate indicated, in order to give effect to the transaction. A debt contracted by a woman during coverture, either as principal or as surety for her husband, or jointly with him, is generally held to be prima facie evidence to charge her separate estate, without proof of a positive intention to do so. 2 Story Eq. Jur., § 1400. The equity doctrine seems to be well established in England, that such engagements by married women would bind their se])arate estate. Hulme v. Tenant, 1 Brown Ch. C, 16 ; Sillia V. Airey, 1 Ves., 277 ; Balpin v. Clark, 17, ib., 277; C Eng. Ch. R., 43; 9 ib., 1. And the American cases which we have examined go to the full extent of the Eng- lish decisions. Jacques v. The M. E. Church, 17 John., 548; N. A. Coal Co. \. Dyett, 7 Paige; -Gardener v. Gardener, ih., 112; Curtis v. Engel, 2 Sand Ch. R., 287. Viewing this case, as we feel authorized, upon equity principles, there can be no doubt that Mrs Wiggington's separate propert}' should be held resi)onsible for the debt, contracted by lierself and husband for the benefit of her estate. It would be rank injustice to suffer fx feme covert BURLINGTON, MAY, 1850, 439 Greenough v. Wiggington and Wife, to enter into such engagements, secure valuable improve- ments upon her real estate, and then exempt it from liability for those improvements. No decision from a court of justice should ever countenance such a system of fraud. The averments iu the bill sufficiently show that the work and materials were obtained upon the credit of her property, that all inured to her individual benefit, that her own undertaking in the premises express an intention to charge her separate estate, and that it was upon the faith of such security that the plaintifl: performed the work. Upon such a showing, we think the plaintiff's prayer for a lien should have been enter- tained by the court below, and that the demurrer should have been overruled. Judgment reversed. Ginmes and Starr and M. D. BroToning, for plaintiff in error. D, RoreTy for defendants. CASES m LAW AND EQUITY, DBTBBUINEO IV THB SUPREME COURT OF THE STATE OF IOWA, OTTUMWA, JUNE TERM, A.D. 1850, In the Fourth Year of the State. Hon. JOSEPH M^LLIAMS, Chief JusttM, Hon. JOHN F. KINNEY, ) j . Hon. GEO. GREENE, \ ''^963. HICKS V. WALKER. Where the county and state are named in the margin of a declaration, and the county is referred to in its hody as " Monroe ety," held that the venue was sufficiently stated. In an action of slander, where general damages only, such as the law implies from words actionable per se, are claimed, the declaration need not specify damages.' Erroe to Monroe District Court. Opinion hy Greene, J. An action on the case, in whicb the following is the form of the declaration • OTTUMWA, JUNE, 1850. 441 Hicks V. Walker. " State of Iowa, ) ^^ Monroe Co. ( William Hicks ^ vs. > Case. John Walker. J " Jolin Walker, tlie above named defendant, was summoned to answer William Hicks, the above named plaintiff, in a plea of the case, whereupon the said plain- tiff by M. D. Ives his attorney complains ; for that whereas the said defendant did, on or about the twelfth day of July, 1849, at Pleasant township, Monroe c'ty, maliciously, falsely, and openly utter and publish, in the hearing of sundry persons, the following false and scandalous words of and concerning the plaintiff, to wit : ' William Hicks (meaning the plaintiff) will steal, and did steal in Penn- sylvania, and had to leave that state for stealing,' which is to the damage of the plaintiff of the sum of $500, and therefore he sues." To this declaration the defendant demurred, and as- signed for special cause : 1. That there is no sufficient venue ; 2. It does not allege in what manner the plain- tiff was damaged. The demurrer was sustained, and it is now contended that the court erroneously decided against the sufficiency of the declaration. Counsel m'ge as an objection to the declaration, that it is very unlike those which are usually filed in such cases, and that it is defective in the two particulars specified by the special demurrer. In relation to the general objection, it must be admitted that the declaration is remarkable for its brevity, and not in the usual form suggested by most of the authors on pleadings. But in American courts at least, prolixity is no longer regarded as an indispensable branch of pleading, nor is it deemed essential to adhere with venerating tenacity to the verbose forms of ancient pleaders. As conciseness promotes perspicuity, and re- dundancy leads to ambiguity and doubt, there is surely no propriety in adhering to forms which, when divested of their superfluity of words, become more simple and in- telligible. If a declaration or plea contains all the neces- VoL. II. 29 442 SUPREME COURT CASES, Hicks V. Walker. sary legal averments, that is sufficient ; the more succinct they are in language the better, if they only express the facts intended. It is objected to the present declaration, that the venue is not sufficiently stated. But we think otherwise. It is not only stated in the margin, but is also referred to with sufficient identity in the body of the declaration. The abbreviation of " cty." admits of no ambiguity. In its connection with other words, it can only stand for county. This, then, we do not consider a sufficient ground of demurrer. 2. The other objection specified is, that the declaration does not state in what manner the plaintiff was damaged. If the slanderous words charged in the declaration were not actionable per se, if they made out a case in which special damages only could be claimed for some particular and actual injury resulting from a slander not actionable in itself, this objection might be urged with much pro- priety. Chitty's PL, 347. But by the declaration in this case, general damages only are sought, which are such as the law implies as resulting from words actionable in themselves ; and such damages need not be specially averred, because it is a general rule that presumptions of . law are not to be pleaded. In this advanced era in the science of pleading, it might very properly be regarded as a loose style, and as censurable surplusage to allege mere matter of law, or any fact which should be officially noticed by the com*t. Chitty remarks, that "though it is usual in an action on the case for calling the plaintiff a ' thief,' to state that, by reason of the speaking of the words, the plaintiff's char- acter was injured, yet that the statement appears unneces- sary, because it is an intendment of law that the plaintiff was injured by the speaking of such words." Chitty's PL, 347. It is true that, under this declaration, the plaintiff would be limited to general damages, and could not super- add proof and recover for special injuries. But it alleges all that is necessary to support the action; it states the time. OTTUMWA, JUNE, 1850. 443 Rogers v. Alexander, the place and the injury with such certainty and precision, that the defendant may know what he is called upon to answer, and by an unequivocal plea raise an issue upon which a complete verdict and a certain judgment may be given. When a declaration contains such requisites, and will produce such results, it shows a compliance with the chief object of pleading, and should be deemed sufficient. Besides, the declaration in this case is not altogether without precedent. It appears to have been literally copied from Swift's Digest, 423, a work by no means contemptible, so far as a terse style and methodical arrangement of pleading are concerned. We conclude, therefore, that the court below erred in sustaining the demurrer to the declaration. Judgment reversed. Ives and Summers, for plaintiff in error. Allison, Wright and Knapp, for defendant. > • * ■ < - BOGERS V. ALEXANDER. Where an agreement was entered into " for the purpose of trial before the justice, and in no other court," such agreement should not be used on trial in the district court, if ol)jected to by one of the parties. A party is entitled to a jury trial upon an issue of facts, even if those facts had been previously admitted by agreement, or if the party had agreed to submit the case to the court, but had witlulrawn that agreement. A prosecution for selling spirituous liquor in less quantity than one gallon, should be conducted in the name of " The State of Iowa." Erkor to Van Buren District Court. Opinion by Williams, C. J. This is a proceeding com- menced by plaintiif Alexander, as treasurer of Van Buren county, against Rogers, the defendant, on the statute of 1840, page 25, for selling spirituous liquors in less quantity 444 SUPREME COURT CASES, Rogers v. Alexander. than one gallon without license. Judgment was entered by the justice of the peace against the defendant for the sum of $30, and costs. He took an appeal to the district court. The cause was tried on the appeal, and a judgment entered for the same amount against the defendant, with costs. Defendant took exceptions to the proceedings in the district court. The case was tried by the judge without the intervention of a jury. The proceedings of the court in this trial are complained of as error. The l)laintiff in error assigns several errors upon which a reversal of the judgment of the district court is m*ged. But two of these will be considered as important here. They are as follows, viz. : 1. It was error to refuse the defendant the right of trial by a jury ; 2. It was error to assess a fine against the defendant, when the prosecution was carried on in the name of an individual, and not in the name of " The State of Iowa." On the trial of the cause before the justice, an agree- ment was filed by the parties, with the expressed under- standing that it was " for the purpose of trial before the justice, and in no other court." The agreement is in the follo^dng words : " In this case, for the purpose of trial before the justice, and in no other court, it is agreed by the parties that the defendant retailed spirituous liquors in Keosauqua, Van Buren county, Iowa, subsequent to the 1st of January, 1848, and before the date of the com- mencement of this suit ; and that the defendant applied to the board of county commissioners of said county sub- sequent to the election, on the first Monday of April 1847, and before the commencement of this suit, for license, and that the commissioners refused to grant such license. This agreement was duly signed by the attorneys of the parties, and filed with the papers of the case before the justice. When the cause was called for trial on the appeal in the district court, the attorney for the appellant moved the court for leave to withdraw the agreement from the files, on the ground that by its terms its operation was confined to the trial before the justice, and should not be used for OTTUMWA, JUNE, 1850. 445 Raj^ers v. Alexander. the purpose of trial in the district court, without the con- sent of the parties thereto. The leave to withdraw was refused by the court. The defendant's attorney then de- manded a trial by jury. Upon this demand being made, the judge directed the clerk to j)roceed and call a jury for the trial of the cause. Whereupon the attorney for the plaintiff suggested that he had no witnesses by whom to prove the facts relied on for the conviction of the defend- ant. The court then proceeded without a jury, and gave judgment against the defendant and B. P. Marlow, his security on the appeal bond, for $30, and costs. The judgment of the court affirms that of the justice, and is for the penalty under the statute. In the record for the judgment, it is stated that the case was submitted to the court, notwithstanding the bill of exceptions sets forth the fact that the defendant's counsel, before the entry of the judgment, insisted upon a trial by jury as his right. This being the case, as presented by the record, we will proceed to consider it on the two assignments of error as above stated. The constitution of this state, Ai't. 2, bill of rights, pro- vides that " the right of trial bj'" jury shall remain invio- late." The proceeding is on a penal statute, by which, on conviction, the defendant became liable to the payment of a fine. The fact to be ascertained was the guilt or inno- cence of the accused. This fact could be established by the defendant pleading " guilty," or by evidence submitted to the jury of the contrary, upon the issue joined by the defendant's plea of " not guilty." It is true that, in cases of misdemeanour like this, it has sometimes been practice allowable, where the parties consent to waive a trial by jury, for the court to proceed to the hearing and final judg- ment of the case without the intervention of a jury. This, however, can only be done by consent of the parties, and is then at the option of the judge. But we have not found a case heretofore, in this state at least, where the com-t refused the accused, in a criminal proceeding, " the right of trial by jury," when claimed and insisted upon before 446 SUPREME COURT CASES, Rogers v. Alexander. judgment, and when the fact in issue was his guilt or innocence. Even after the plea of " guilty " in confession of the accusation has been pleaded, it may he withdrawn, and the accused permitted to enter the plea of " not guilty," and proceed to a trial by jury. In the case at bar, the court has proceeded to judgment, on the ground that the case had been submitted to the judge by agreement of the parties ; but the bill of exceptions allowed and certified by the court, certainly shows that if such a submission had been agreed on, it was withdrawn by defendant's counsel in time for the exercise of his right to a jury trial. If the agreement which had been filed for the purpose of trial before the justice were not properly before the court as evidence, and its withdrawal would have worked surprise on the prosecutor, it was in the p6wer of the court, by the exercise of a sound discretion, to give time for the pro- curement of testimony on the part of the prosecution. By resuming the hearing, after a call of the jury had been directed, when informed that the prosecutor had no testi- mony to sustain the charge made against the defendant, we think the court erred. By operation of the statute, the case was in the district court for trial de novo. The accused had a constitutional right to a jury trial, unless he had waived it by plea or otherwise. The other assignment of error which it is proper to notice here relates to the parties to the proceeding, and is founded on a provision of the constitution of this state. This prosecution is criminal in its nature. By it, under the statute, a misdemeanom- punishable by fine is charged upon the accused. It was commenced March 21, 1848, nearly two years after the provisions of the constitution were adopted and in force. It could only be proceeded in as prescribed by the constitution. Art. 6, § 6, is as follows : " The style of all process shall be ' The State of Iowa,' and all prosecutions shall be conducted in the name and by the authority of the same." This being a prose- cution which was instituted after the adoption of the con- stitution, it should have been conducted "in the name OTTUMWA, JUNE, 1850. 447 Davis V. Fish. and by the authority of the state of Iowa," and not in tlie name of the treasurer of the county, Gideon B. Alexander. It is true, the statute on which this prosecution is founded directed this form so far as to designate the treasurer of the county to institute the action. But the constitution is the paramount law, and its requirements must be observed. Judgment reversed. H. M. Shelby, for plaintiff in error, Howell and Cowles, for defendant. DAVIS V. FISH. A written a.!?reement between D. and F. stipulated that D. should furnish certain kinds of goods at 25 per cent, and other kinds at 10 per cent, advance, and concluded with the stipulation : " All goods billed at 25 per cent, payable in six months, at 10 per cent, in four months, by adding 10 per cent, interest:" held that the interest should be charged on the goods furnished at 25 per cent, as well as on those furnished at 10, Error to Wapello District Court. Opinion bj Kinney, J. Davis sued Fish in assumpsit, and dechired uj^on the following contract : " This is to certify that I do agree to furnish E. D. Fish any articles of goods we may have to dispose of, namely, 25 per cent. for all kinds of goods except the following :— sugar, coffee, iron casting, nails, salt, molasses, at 10 per cent, by adding transportation. Flour, corn-meal, whisky, bacon, &c., to be consigned at the lowest cash price, by the quan- tity, and accounted for when sold. The above articles to be furnished as the said Fish order on memorandum ; goods to be delivered at 40 cts per hundred to Eddy- ville, Iowa. All goods billed at 25 per cent, payable in six months, at 10 per cent, in four months, by adding 10 per cent, interest." 448 SUPREME COURT CASES, Davis V. Fish. The only question arising in this case is one growing out of a construction of this hist clause of the agreement. The court instructed the jury " that the contract to pay interest was confined to the goods billed at 10 per cent, advance, and that those which were billed at 25 per cent, advance would draw interest by the statute at 6 per cent, after due." Although the concluding part of the contract is somewhat ambiguous, and evidently written in that laconic style which is somewhat peculiar to commercial men, still we think the construction given it by the court is different from what the parties intended at the time. In the construction of all contracts, the great object of the com-ts should be to reach the intention of the parties. This can sometimes be ascertained from the express lan- guage used in the contract, but at other times, words which evidently contradict the general spirit of the agree- ment must be disregarded, and the meaning of the parties declared without reference to the language used, except as far as it expresses the intention of parties. In the construction of this contract, much is left to inference. All goods billed at 25 per cent., payable in six months at 10 per cent. ; that is, all goods billed at 10 per cent, pay- able in four months. The adding of the 10 per cent, interest, we think, refers to the entire amount of goods thus billed. The matter would have been placed beyond all doubt, if the words "upon the whole amount" had been inserted after the word '■'■ interest ; " but the omission is characteristic of the entire contract. " The fewest words possible are used by the parties to express their liability. The statute autho- rizes parties to contract in writing for 10 per cent, in- terest. It is reasonable to presume that this contract was made with reference to this statute, and that as time was given, it was the intention of the parties to stipulate for that amount, particularly as the contract bears this construc- tion. Davis agrees to furnish Fish with goods. They are to be billed at a certain per cent, above costs, and time is to be given for payment, four months upon one bill, and OTTUMWA, JUNE, 1850. 449 Parris v. The State. six upon the other. Ten per cent, interest is stipulated, which, we think, taken in connection with the character of the contract, was intended by the parties to apply to the whole amount of goods billed. Judgment reversed. Wright and Knapp, for plaintiff in error. aS. W. Summers and H. D. Ives, for defendant. PARRIS V. THE STATE. Under the statute of 1849 it is erroneous for a district judge to charge a jury, or to modifj' instructions orally. Legal instructions may be refused and given in a modified form in writing, as the circumstances and evidence of the case may require. Error to Davis District Court. Ojnnion hy Greene, J. Indictment for suffering gaming. Trial before a jury, a verdict of guilty, and a fine assessed of $50. The indictment was found under the eighth section of an act to prevent and punish gaming. Rev. Stat. , 275. This section provides that if any keeper of a tavern, grocery or other house of public resort, sliall suffer any game prohibited by the act to be played at or within such tavern, grocery, &c., or in any outhouse appendant thereto, such keeper shall, on conviction, forfeit and pay a sum not less than $50, nor more than $200, &c. The act prohibits all games whatsoever, except games of athletic exercise. Upon the trial, defenaant's counsel asked the court to give certain instructions. Among the instructions the following were asked and refused: I. The state must prove the game played to be the game charged in the indictment ; 2. That the state must prove, to the satisfac- 450 SUPREME COURT CASES, Parris v. The State. tion of the jury, that some game was played by the per- sons mentioned in the indictment ; 3. That in order to convict, they must be satisfied that the game played was not a game of athletic exercise, and upon this they must be satisfied from the testimony of witnesses, and not from anything they may know of themselves. At the conchi- sion of these and five other instructions asked b}^ defend- ant, the following note appears over the signature of the judge : " Refused, and others given instead." But the substituted instructions are not made a part of the record, nor are we informed, except by an unauthor- ized remark of the clerk, whether they were given orally or in writing. If in writing, they should have been con- nected with the instructions asked, and made a part of the record under the signature of the court. If orally given, it was in du-ect conflict with the laws of 1839, p. 135, § 2, which provides, that when instructions are asked by either party, the court shall in no case " orally qualify, modify, or in any manner explain the same to the jury." Under this section instructions asked cannot be orally modified or explained, but they may, no doubt, be ex- plained in writing by connecting such written explana- tions with the instructions asked, and making all a part of the record. This is wholly neglected in the present case, and we are only informed by the judge that other instruc- tions were given, without any intimation of their character. It was erroneous to refuse uucjualifiedly the three in- structions above quoted, still they might with propriety have been refused and given in a modified form in writing, as the peculiar circumstances and evidence of the case might require ; but as the record shows an absolute re- fusal, and no written explanation, the judgment must be reversed, and a trial de novo awarded. Judgment reversed. Wright and Knapp^ H. D, F aimer and A. Ilall^ for plaintiff in error. S. S. Carpenter, for the state. OTTUMWA, JUNE, 1850. 451 Reeves v. Royal. REEVES V. ROYAL et al Wliere a new trial is sought on the ground of newly discovered evidence, the best proof should be adduced to show that such evidence has been disL'Overed, where it is, that it can be had at the proper time, that it is material, and not merely cumulative, and that a failure to procure it on the trial was not occasioned by negligence. Where the record shows that the district court granted a new trial on the ground that the instructions were confused and defective, this court will not disturb the order. Error to Davis District Court. Opinion by Williams, C. J. Reuben R. Reeves, as adTiiinistrator of the estate of Levi Reeves, deceased, broug-lit his action of assumpsit against the defendants, Ro}ul and Jackson, in the district court of Davis county, to the April term, 1848. The plaintiff declared upon a joint and several note, payable six months after date, calling for $110.70. The note bears date the 22d day of August, A.D. 1846. The defendants set up fraud and cir- cumvention on the part of plaintiff in obtaining the note. The cause was tried at April term, 1848, and a verdict rendered for the plaintiff for |1 18.02. Upon the recovery of the verdict, the defendants moved the court to grant a new trial. On hearing, the verdict was set aside and a new trial granted. This action of the com't is here assigned as error. The record shows that the motion for a new trial was urged on two grounds, to wit : newly discovered evidence, and error in the instructions of the court, so as to mislead the jury in making up their verdict. The affidavit of Royal, one of the defendants, was filed, on which he stated that since the trial he was informed one Denison, who was then absent, would testify that said plaintiff, Reuben R. Reeves, stated to witness, " that they (meaning plaintiff and Green Reeves) had a hard time to get old Royal into it," (meaning the note sued.) 452 SUPREME COURT CASES, Reeves v. Royal. ♦ The affiant does not pretend in the affidavit to disclose the name of the person who informed him of what Deni- son would swear, nor does he aver his belief in the state- ment made. The affidavit does not show that, in the use of proper diligence, the testimony of Denison could not have been procured on the trial. So vague and indefinite are the allegations of fact con- tained in the affidavit, that of itself it does not present sufficient ground for granting a new trial. Indeed, it does not appear to have been considered by the judge who tried the cause as furnishing the reason upon which he acted in granting the motion. Where a party seeks to procure a new trial on the ground of newly discovered evidence, he should give the court the best evidence possible of the truth of the allega- tions that such evidence has been discovered, where it is, and that it can be had at the proper time. It is also necessary to show that the evidence is material to the issue between the parties, and is not cumulative merely ; and further, that the failure to produce it on the trial was not chargeable to his own negligence. Shlenker v. Risley^ 3 Scam., 486. In this case we think the doctrine is truly set forth. But enough has been said upon this point, as the action of the district court in granting the new trial appears by the bill of exceptions to have been predi- cated upon the misdirection of the judge in charging the jury. It appears by the bill of exceptions that the judge charged the jury on the question of fraud in the procure- ment of the note upon which the suit was instituted. In his charge, as at fii'st given, there is manifest error. After having charged fully upon the question as raised by the pleading, and the facts adduced in evidence, upon being requested by the defendant's counsel to give a different instruction as to the law, he expressed himself as dissatis- fied with what had been given, and proceeded to give those asked. The instruction last given is correct. The defendant's counsel urged as a reason for granting OTTUMWA, JUNE, 1850. 453 Eeeves v. Koyal. a new trial, that the jury was confused and misled as to the law by the charge of the court as given ; that the instructions were erroneous, contradictory, and calculated to perplex the jury. The bill of exceptions then, in the language of the court, proceeds in setting forth, that " the court being of this opinion, and thinking that the suing on the note was a ratification in law (of the agent's acts), and that the jury ought to have been so expressly and clearly charged, and thinking that the case went to them under such confused instructions that they might be misled, &c., granted the new trial." This record exhibits to us nothing that calls for this court to interfere with the ruling of the district court. It is true that the bill of exceptions shows that, after much discussion of the questions involved in the trial, the com't admitted its own error and corrected itself. But it also shows that the court, in the exercise of a sound discretion, with a full knowledge of all the circumstances, was of the opinion that the jury were confused and misled by the charge. This is not a case in which, as good reason for a new trial, it is alleged on behalf of a losing party, that the jury were misled or confused by the instructions of the court, and the motion overruled. But where the court, in express terms, admits the truth of the allegations made as the ground of the motion, and granted a new trial, we cannot interfere. The court must be presumed to have been fully pos- sessed of the circumstances of the case, and to have acted with a sound discretion in correcting, in a speedy and proper manner, its own erroneous procedure. The order of the district court granting a new trial is affirmed. Judgment affirmed. Wright and Knapp, for plaintiff in error. A. Hall, for defendant. 454 SUPREME COURT CASES, Brown v. Scott. BEOWi^ V. SCOTT. An appeal is authorized from the judgment of a justice, and not from the verdict of a jury. The intention of a justice to render a judgment without doing so, is not a judgment. The certificate of an ex-justice of the peace, iu relation to his proceedings while in office, is not entitled to legal consideration. Error to Van Buren Disthict Court. Opinion by Kixney, J. Browu sued Scott in an action of replevin, -which on change of venue was tried before Joseph A. Kean, Esq. The cause was tried by a jury, Avho found a verdict for the plaintiff. Scott appealed. Brown moved to dismiss the appeal, because there was no judgment of the justice of the peace before whom the cause was tried, from which the defendant could appeal. The defendant therefore suggested a diminution of the record in this, that the transcript of the justice did not show a judgment upon the verdict. A rule was obtained upon the justice and his successor in office, commanding them to send up to the district court their joint and several certificates, setting forth distinctly the judgment in the case. In pursuance of this rule, John McCansland, Esq., the successor of said Kean, filed, a transcript from the docket of said Kean, in which it appears that there was not any judgment entered up by his predecessor in office a2:ainst the defendant Scott. Kean, in obedience to said rule, returns as follows : " In the above case, I, Joseph A. Kean, the justice before whom the same was tried, do here- by certify, that I rendered judgment therein in accordanre with the verdict of the jury ; and that it does not appear on my docket and the transcript sent to the district court, arises from the fact, that it was a clerical omission of mine." The motion to dismiss was then heard and overruled by the court, and the cause retained for trial, to which ruling Brown excepted, and assigns the same for error. OTTUMWA, JUNE, 1850. 455 Brown v. Scott. This ruling of tlie court was erroneous. The statute in relation to jury trials before justices of the peace provides, that when the jurors have agreed on the verdict, they shall deliver the same to the justice publicly, who shall enter it on his docket. Rev. Stat., 325, § 15. It is then the duty of the justice of the peace to enter up judgment upon the verdict against the unsuccessful party. The statute also provides, that any person aggrieved by any judgment or decision of a justice of the peace, may make his appeal therefrom to the district court, &c. A person cannot appeal from the verdict of a jury. In cases of jury trial where the verdict is really the cause of complaint, it is still the judgment of the justice upon the verdict, which alone under the statute gives the party the right to appeal. If there is not any judgment, there is nothing to appeal from, nothing for the district court to try, no cause in court which entitles the appellant to a trial ; and, therefore, in such a case, unless an amended transcript supplies this fatal defect, the appeal on motion should be dismissed. But the court, in the case before us, appears to have adopted the certificate of Kean, the justice, before whom the cause was tried, but who was not in office at the time of certifying, and by virtue of this certificate retained the apj^eal for trial. From it, it would seem that the justice rendered judg- ment, but failed to enter it in writing. We are at a loss to know how the justice could have rendered a judgment that would liave any force or virtue, without rendering that judgment into proper form in the docket, which he is required by law to keep for that purpose. It is true, he might in his mind resolve upon entering the judgment, but unless put into shape and form, it would be as though no judgment at all had existed in the mind. This certificate, even if Kean had remained in office, should not have been received by the court. The act of the officer and not the intention, is what gives force and authority to judicial proceedings. 456 SUPREME COURT CASES, rhillips V. Cooley. However mucli Kean may have intended to enter the judgment, if he did. not do it, for the purposes of appeal it is the same as though no trial had taken place. Officers cannot supply acts by will, nor give vitality to judgments which only existed in the mind. But when Kean retired from office, his certificate in relation to former official proceedings was not entitled to any more legal consideration or respect than if he had never been a justice of the peace, or than that of a mere stranger. His docket by the statute jDassed into the possession of his successor, and transcripts from it could not be explained, changed or in any way altered by the certificates of the justice who once entered them. Judgment in the district court upon the trial of this case reversed, and the appeal dismissed. Judgment reversed. A, Hall, for plaintiff in error. Wright and Knapp, for defendant. I ->•»«• < PHILLIPS V. COOLEY. Where a note is made payable in corn on or before a given day, a demand if not necessary. Wliere no place is appointed for the delivery of specific articles, the debtor must, before the day of payment, ascertain from the creditor, if practicable, where he will receive the goods. Error to Marion District Court. Opinion by Greene, J. An action of assumpsit on a note, by which Samuel M. Cooley promised to pay Jacob Phillips 200 bushels of good corn, on or before the 1st day of December, 1848. Suit commenced before a justice of the peace, where the defendant recovered a OTTUMWA, JUNE, 1850. 457 Phillips V. Cooley. judgment. The plaintiff took an appeal to the district court, and there, on the trial, offered the note in evidence to the jury, but the defendant objected to the introduction of the note, on the ground that the plaintiff had not proved a demand of the corn previous to the' commencement of the suit. This objection was sustained, and the plaintiff, neglecting to prove a demand, was nonsuited, and now urges this ruling of the court as error. The only question involved in this case has already been decided by this court in the case of Games v. Manning * lu that case, the note was payable in leather at a time and place speci- fied; and it was held that the plaintiff was entitled to his action without proving that he had demanded tlie property. The fact that no place was designated in this case for the payment of the corn, cannot change the rule in relation to a demand. Independent of the statute, it is a well settled rule, that where no place is appointed for the delivery of specific articles, the debtor must, before the day of payment, ascertain from the creditor, if practicable, where he will receive the goods. Burr v. Myers, 3 Watts & S., 295; Bixhy v. Whitney, 5 Greenl., 192; Currier v. Currier, 2 N. H., 95; Howards. Miner, 20 Maine, 325. According to this doctrine, the first act is to be done by the debtor, if he wishes to avail himself of the privilege to pay his liability in property, and this can hardly be reconciled with the position that the creditor must first demand the specific articles before seeking to recover his demand. Besides, the course to be pursued by the maker of any instrument of writing is defined by statute in all cases where such instrument does not specify any particular place for the payment or delivery of the property. It pro- vides that it shall be lawful for the maker of any such instrument to tender, on the day of payment, the specific articles at the place where the obligee or payee of any such instrument resided at the time of the execution thereof. Rev. Stat., 453, § 7. This certainly contemplates no pre- ♦ Ante, 251. Vol. II. 30 458 SUPREME COURT CASES, Wright V. Boon. vious demand on the j)art of the payee or obligee. If required, that regulation of the statute would prove utterly fallacious. A demand necessarily implies the power to deliver the article specified at the time and place of the demand, and this would enable the maker of such an in- strument to deliver the property at such place as might be most convenient to him, without reference to the rights and convenience of the payee. But it is useless to enlarge upon this subject, as we adhere with confidence to the de- cision and views expressed in Games v. Majining. Judgment reversed. W. H. Seevers and L. W. Babbitt , for plaintiff in error. S, PF". Summers^ for defendant. . '^M WRIGHT V. BOON". A judge cannot act as attorney in a case pending before him. When a case comes before a judge, in which he has been engaged as attorney, he should order a change of venue. A judge cannot delegate his power to another, nor can a person be authorized to act as judge by agreement of the parties to a suit. Ereor to Polk District Court. Opinion by Kinney, J. Boon sued Wright before a justice of the peace upon two promissory notes, one for $53.33, the other for $34.87. The case was tried by a jury, and a verdict returned in favor of the defendant for $83.22. The plaintiff appealed to the district court of Dallas county, and by change of venue, the cause was removed to the district court of Polk, where it was tried, and a verdict of $57.50 found for Boon. Wright then filed his motion to set aside the verdict, lor the following reasons : Because William OTTUMWA, JUNE, 1850. 459 Wright V. Boon. McKay, judge of tlie fifth judicial district of the state of Iowa, appeared as counsel for William D. Boon ; and also the said judge signed the instructions written and given by W. W. Williamson, who presided as judge in the cause. This motion was overruled, and judgment entered upon the verdict. Whereupon Wright sued out a writ of error, and assigns as error : 1st, The court erred in acting as counsel and judge in the same case. 2d, The court erred in overruling the motion to set aside the verdict and grant a new trial. The following agreement appears of record : " Now come McKay and Jewett, attorneys for plaintiff, and Cassady and Perry, attorneys for the defendant, and by agreement of parties heretofore made, W. W. Williamson, Esq., pre- sided in the case instead of the Hon. William McKay, who was one of the counsel before he was elected judge." The record, we think, sufficiently discloses the fact that his honor Judge McKay acted as counsel in the court of which he was presiding and sole judge. He, as counsel, is party to the agreement by which a member of the bar is substituted as judge. A motion is made to set aside the verdict, in which it is stated, that the judge acted as counsel, and nothing is shown to rebut this charge. The question raised by the assignment of errors is, Can parties substitute a person to act as judge in the place of the judge, and can the judge act as counsel in a cause in his own coiu-t ? By the statute, it is provided that in all cases where the judge is interested or preju- diced, or is related to, or shall have been counsel for either party, the court shall, in term time, without application from either party, award a change of venue, llev. Stat., p. 639, § 5. Judge McKay having been counsel in the case before his election as judge, he should have ordered a change of venue as required by this statute. Parties cannot agree, even with the consent of the judge, to diijwse the court and substitute another to act as judge in the trial of causes. The bench cannot in this way be vacf>ied, 460 SUPREME COURT CASES Dickerson v. Shelby. nor fhe powers of the court tliiis delegated to another. Williamson possessed no more authority upon the bench than before he occupied the seat. ISTor was it within the power of the court to confer upon him the stipulated judi- cial authority. The judge alone was endowed by law with the duties and responsibilities which pertain and belong to the court; and if these are assumed by another, or attempted to be conferred by the court or parties, all proceedings emanating from such assumed or enforced authority will be absolute nullities, and should be declared void whenever attempted to be enforced. This being the case, the impropriety of the judge leaving the bench, and ap]3earing as counsel in a cause on trial in his own court, is perfectly apparent — a judicial indiscretion which inex- perience may palliate, but an error sufficient to reverse any judgment thus obtained. The court therefore erred in refusing to set aside the verdict. The judgment of the court below is reversed, and a trial de novo awarded. Judgment reversed. J. M. Perry, for plaintiff in error. Jewett, Wright and Knapp, for defendant. DICKERSON" V. SHELBY. Clerks of the district court are entitled to fees before losing control of their service. Fees for making out a transcript may be required before the case is docketed in the supreme court. Eerok to Van Buren District Court. Opinion bj/ G-reene, J. A motion is made in this case for a rule upon the clerk of the Van Buren district court to send up the record in obedience to the writ of error. OTTUMWA, JUNE, 1850. 461 Dickerson v. Shelby. But it is contended that the motion should not be granted because the plaintiff in error has not paid the clerk's fees for making the transcript of the record. The question arises, Was the clerk entitled to those fees before losing control over the transcript? We think this case forms no exception to the general rule in relation to fees. Inde- pendent of the prevailing practice which secures compen- sation to officers of courts whenever they are rendered, we have a statute which provides that all fees shall be paid by the party requiring the services, on the same being rendered. Rev. Stat., 222, § 4. If, then, a clerk of court requires his fees upon rendering any service for a party, he cannot be required to place those services »in the pos- session of such party until he receives payment for them. It is true, a writ of error is a writ of right; it is a man- date which should be promptly obeyed in behalf of the party for whose benefit it issued ; but still it is not a writ requiring gratuitous service. Although it will issue '' as of course " upon any order or judgment of a district court, still the clerk who issues it is entitled to his fees for it before he can be required to let it pass from his hands, and upon the same principle the clerk below, to whom the writ is directed, is entitled to his legal fees for preparing the returns thereto ; and if payment is required, it should be made by the plaintiff in error before the papers are filed and docketed in this court. Where such preliminary pay- ment is demanded by the clerk below, he should give notice thereof to the plaintiff or his attorney, and send his bill of particulars and demand of payment with his re- turns in the case, to the clerk of this court, and authorize him to receive the fees for him ; and when such bill and declaration accompany the papers, the clerk of the supreme court will not file the papers or docket the case until payment is made. This rule, we think, is conformable to the spirit of the statute, will insure imperative obedi- e.oe to writs of error, and secure the clerks below in the collection of fees which might otherwise be lost. It will be seen that the clerks of the district courts, under this 462 SUPREME COURT CASES, De France v. Spencer, arrangement, are required to obey tlie writ of error, and make returns as provided by statute, whether his fees are previously paid or not. The motion is granted conformable to this opinion. J. H. Cowles, for plaintiff in error. H, M. Shelby, for defendant. DE FRANCE v. SPEN-CER. Ordinary caution and honest motives in setting fire to a prairie, and due diligence in preventing it from spreading, is a good defence to an action for damages. Error to Jefferson District Court. Opinion by Kinney, J. Spencer sued De France and Karns before a justice of the peace for damages sustained bj' reason of a fire which he alleged was set out by the defendants, and by them permitted to communicate with his premises. Before the justice the defendant in error obtained a judgment from which the defendants below appealed. In the district court a verdict was returned by the jury against De France for $20. To reverse the judg- ment upon this verdict he has sued out a writ of error, and assigns for error the following instruction of the court : " He who voluntarily sets out fire on his own land is responsible for the damages done by its spreading upon the lands of others, even though he uses due diligence to restrain it." This instruction was erroneous. The statute relied upon to sustain the instruction provides, " That if any person or persons shall set on fire, or cause to be set on fire, fP'iy woods, prairies or other grounds whatever, other than his own, or shall permit the fire set out by him to pass from OTTUMWA, JUNE, 1850. 463 De France v. Spencer. his own prairie or woods to the injury of any person or jiersoiis, every person so offending shall, on conviction thereof, for every such offence be fined in any sum not exceeding $50, and shall be liable to an action to the party injured for all damages which he, she or they may have sustained in consequence of such fire." Laws of 1846, p. 3, § 1. Aside from this statute, it would not be contended that a person would incur liability for damages sustained by fire passing from his own premises if he had used proper caution and diligence in preventing it. This princip)le is fully sustained in Clark v. Foote, 8 John. R., 421 ; Bach- elder V. Hagan, 6 Ship., 32? Ellis v. Railroad Co., 2 L-dele, 138. Does our statute change this rule, and make an indi- vidual responsible for damages done by fire passing from his own premises, when it was not within his j^ower to pre- vent it ? We think not. The meaning of the statute is, that a person shall not willingly or carelessly permit or suffer the fire to pass so as to injure another, or if he does that, he should be liable to the party injured. If a person does all in his power to prevent the fire from pass- ing, but if, in opposition to all of his efforts, it still passes on to the premises of another, he does not, in contempla- tion of the statute, per^mit it to pass. It encroaches upon his neighbor against his best efforts, without his consent or jjermission, and he should not be held liable for any damages which it may occasion. While a person has a right to set fire to his own grounds, yet if he does so when, from their contiguity to those near him, or from high wind or other cause, the result would lead to mischief, in such case he would be liable if injury is done to his neighbor's property, because he could not exercise diligence to pre- vent the fire witli that success as if the fire had been pru- dently set out. But when, from good motives, and under prudential circumstances, a person sets fire to his prairie ( r woods, and uses such care and diligence to prevent it from spreading as a man of ordinary caution would use to 464 SUPREME COURT CASES, Shaffer v. Trimble. prevent it from injuring liis own property, be is not liable for tbe damage wliicli it may do to tbe premises or pro- perty of otliers. Ordinary prudence and bonest motives in setting tbe fire, and due diligence in preventing it from spreading, are all tbat is necessary, and will constitute a good defence to an action for damages. Judgment reversed. •&^ Slagle and Ackeson, for plaintiff in error, C. Negus^ for defendant. SHAFFER et al. v. TRIMBLE et al. Where a party before a justice of the peace moves for a continuance of the cause, and for a change of venue before objecting to the summons, such acts will amount to a general appearance, which cures all defects in the form and service of process. Erkor to Appanoose District Court. Opinion hy Greene, J. An action of trespass com- menced before a justice of tbe peace by tbe plaintiffs in error. We infer from tbe very defective transcript in tbis case, tbat on tbe return day of tbe writ tbe parties appeared, and tbe plaintiffs filed tbeir affidavit for a con- tinuance, on tbe ground tbat witnesses could not be bad in time for trial. Tbe defendants admitted tbe facts wbicb tbe plaintiffs expected to prove by tliose witnesses, and claimed tbat tbe trial sbould proceed. Tbe defend- ants tbereupon made application for a cbange of venue, wbicb was accordingly granted, and tben moved to dismiss tbe proceedings, for tbe reason tbat tbe amount of damages claimed by plaintiffs, including interest and costs, was not indorsed upon tlie summons as required by statute. Rev. Stat., p. 317, § 15. Tbis motion was overruled. OTTUMWA, JUNE, 1850. 465 Sliaffer v. Trimble. The defendants submitted to a trial upon the merits, before the justice to wliom the venue was changed. Ver- dict and judgment for the plaintiffs. An appeal was then taken to the district court, where the defendants renewed their motion to dismiss, which was granted. The question is now presented. Did the court below err in dismissii g the suit on the ground that the amount of plaintiffs' claim was not indorsed on the summons ? This defect would justify such a decision, where the objection is not waived by the general appearance of the defendants. The transcript in this case shows such appearance before any objection was made to the indorsement. The defend- ants appeared, and on the affidavit made for a continuance, admitted certain facts to be true, and demanded a trial. Again they appeared and applied for a change of venue before the motion to dismiss first appears to have been made. It is a well settled rule, and one which has been repeatedly confii*med by this court, that the appearance of a defendant cures all defects in a summons, or in the service of process. Morris, 21, 113, 223, 403; 4 Blackf., 137; 5 ib., 97. Besides, the defendants waived this ob- jection by availing themselves of a change of venue, and by going to trial before the second justice without making any objection before him to the indorsement on the sum- mons. The decision of the district court in dismissing the suit is therefore reversed, and the cause will stand for trial in that court upon the appeal. Judgment reversed. W. H. Brumfield^ for plaintiffs in error, S, W. Summers^ for defendants. 466 SUPHEME COURT CASES, Hall V. Bennett. HALL et al, v. BENNETT. Where a party appeals from a judgment by default, he may on first appear- ance in the district court object to the manner or style in which he is sued. Where there is a manifest variance between the names to a note and the names to a record, the note should not be admitted in evidence. In a suit commenced before a justice of the pesce, a misnomer may be taken advantage of by motion, as well as by plea in abatement. Error to Polk District Court. Opinion by Greene, J. This was an action of assump- sit commenced before a justice of the peace, in the name of B. Bennett against S. Hall and B. F. Jesse. A judg- ment hj default was rendered against the defendants. They then took the case to the district court by appeal, and there moved to dismiss the suit because they were not sued by their Christian names nor even by proper initials. This motion was overruled, although it appeared that the suit was commenced and prosecuted against S. Hall and B. F. Jesse, instead of against Townsend Hal] and Benjamin Jesse. The defendants then objected to the admission of a certain note whicli the plaintiff offered in evidence, because tlie note was in no way referred to or identified in the proceedings before the justice, and in no way appeared to be the instrument u})0u which the cause of action was predicated. But the court overruled this objec- tion, and admitted the note in evidence. In both of these particulars, the ruling of the court below was obviously erroneous. Upon their first appearance to this action, the defendants objected to the defective manner in which they were sued. It cannot, therefore, be assumed that the irregularity was waived by appearance. Had they been sued upon a note to which the initials only of their Chris- tian names had been subscribed, there might have been some justification for the decision of the court below. They might then have been sued in a name which they had themselves acknowledged. But in this case, there OTTUMWA, JUNE, 1850. 4G7 Graves v. Cole. was no note adduced signed in the name of S. Hall and V>. F. Jesse, and j ayable to B. Bennett. The note offered in the district court, and improperly admitted, was signed by Townsend Hall and Benjamin F. Jesse, and made pay- able to Benjamin Bennett. Thus the misnomer in the suit was manifest, and in an action commenced before a jus- tice of the peace might be taken advantage of on motion, as well as by a plea in abatement. The variance between the parties to the note, and the parties to the suit is equally manifest, and rendered the note inadmissible as evidence, even if the transcript had shown that this note constituted the same cause of action upon which the judgment of the justice was rendered. Rev. Stat., p. 335, § 15. Judgment reversed. W. H. Seevers, for plaintiff in error, J, M. Ferry, for defendant. GRAVES V. COLE. In the district court all writs should be made returnable to the first day of the term, but if a writ is defective in this particular, it may be corrected by the court, or cured by the appearance of the defendant. If a writ of attachment is made returnable to the third day of the term, it is doubtful whether it would justify the court in dissolving the attachment Uen. Error to Wapello District Court. Opinion by Greece, J This case is now before us on petition for rehearing. The case, as first tried, is reported in 1 G. Greene, 405. It is now claimed that the judgment of the court below was improperly reversed, as there was a material defect in the writ of attachment which was not amended, and which justified the action of the court below 468 SCJPHEME COUllT CASES, Graves v. Cole. in dissolving tlie attachment and dismissing the writ. The defect to which our attention is now directed for the first time is, that the writ of attachment was made return- able to the third instead of the first day of the term, as is directed by statute. Rev. Stat., p. 408, § 1. It appears that the summons was made returnable in the same irre- gular manner. But the court decided that the attachment was defective, and the summons good. Even that of itself would justify the former action of this court in reversing the judgment, for if the defect complained of would in- validate the one ■\\T.*it, it would necessarily have the same effect upon the other. But the irregularity was such that it might have been corrected in both writs by the court, or cured by the appearance of the defendant. If the defect in the summons was waived by such appearance, the defect in the writ of attachment was waived by the same act; for an appearance to the action could not but be regarded as an appearance to both writs. Besides, it may well be questioned whether such an irregularity could justify a court in dissolving an attachment lieu, if good in all other particulars, even if the objection had been made in time. It was a mere defect in form, amendable on terms discretionary with the court, and which could not impair the authority of the officer or the validity of his levy, nor work any inconvenience to the party. But if the defend- ant had not appeared, the court would not have been authorized to render judgment against him on such attachment before the third day of the term, as mentioned in the writ. We therefore see no reason for disturbing our former decision in this case. Judgment reversed. Wright and Knapp, for plaintiff in error. H, B, Hendershott^ for defendant. OTTUMWA, JUNE, 1850. 4G9 steel V. Davis Co. STEEL V. DAVIS CO. An action may be maintained against tiie commissioners of a county, on a general unconditional order drawn by them for the payment of money. The rule that an order must be presented for payment within a reasonable time, and notice oi its dishonor given to the drawer, is not applicable to county orders. Error to Davis District Court. Opinion hy Greene, J. Samuel Steel sued the board of commissioners of the count}^ of Davis, in an action of debt on a county order under seal. The order was drawn b)^ the commissioners of said county, tested by their seal and clerk, and directed the treasm'er of Davis county to pay Samuel Steel, or bearer, $900, with 10 per cent, interest; the interest to be paid semi-annually. Date of order, April 11, 1848; presented for payment, July 2, 1849, and payment refused. To the declaration the defendant demurred, and the demurrer was sustained. Upon this decision, the plaintiff brought the case by writ of error to this court. The only question raised is, Can an action be maintained against the county commissioners on a general order drawn by them for the payment of money ? The power of the county commissioners to issue such attested orders is not denied; but it is contended that the holders of such orders cannot maintain an action upon them ; that they are only entitled to payment in the order of their acceptance, so fast as the money comes into the county treasury ; and that the commissioners can only be Bued where they exercise a power not conferred, or refuse or neglect to perform a duty enjoined, by law. By statute, the county commissioners are considered a body corporate and politic, and, as such, " may sue and be sued, plead and be impleaded, defend and be defended, answer and be an- swered unto, in any court either in law or equity." Rev. Stat., 123, § 4. Among the powers delegated to them by 470 SUPREME COURT CASES, Steel V. Davis Co. that section, we find that they are authorized to examine, allow and settle all accounts of the receipts and expendi- tures of the money of the county, and have the care of the county property, and management of the county funds and business. It must he presumed that the order in this case was drawn pursuant to the authority conferred upon the commissioners to examine and allow accounts ; and as it was not made payable upon any contingency, or out of any particular fund to be created, but made unconditionally payable on presentment to the treasurer, it became at once due upon such presentment. It has been decided by this court, in Brown v. Johnson Co., 1 G. Greene, 486, that a judgment may be rendered against county commissioners upon a county order due at the time suit was instituted. If a judgment may be rendered against them on such an order, it necessarily follows that a suit may be instituted u^jon it, and the action legally maintained. Whenever the board of commissioners are in default, whenever they neglect to perform their contracts or to pay their liabilities, redress may be sought against them by the injured party in the same way that it may against any other body corporate which is authorized by law to sue and be sued. By the unqualified language of the order in this case, the commissioners direct payment uncon- ditionally, and thus in legal contemplation undertake that funds are in the hands of the treasurer to pay the same on presentment. They control, limit or extend county ex- penditures, have chai'ge of the county property, and the procurement and management of the county revenue. It is, then, their duty to keep the county expenditures within the resources which may legally come under their dh'ection ; and it is especially their duty to provide means for the payment of all liabilities contracted by them in " trans- acting county business." If they fail in any of their con- tracts or undertakings, the injured party can seek redress by mstituting his suit against them. The very authority which enables them to contract within their defined powers, and to sue in any court, provides that they may OTTUMWA, JUNE, 1850. 471 Steel V. Davis Co. be sued. This liability to be sued is not limited to any particular delinquency in the discharge of their duties, but extends generally to all wrongs by which the rights of others may be affected. This we regard as the obvious intention of the act organizing a board of county commis- sioners in each county. The declaration in this case contained all necessary allegations to enable the plaintiff to recover. It shows that the order was presented to the treasurer, that pay- ment was demanded and refused. The commissioners having failed in their undertaking to have the funds ready, the action against them was clearly maintainable. The fact that the order was made to draw interest at 10 per cent., to be paid semi-annually, cannot be con- sidered as an extension of the day of payment to an in- definite period, as is claimed by counsel. It is a positive order upon the treasurer to pay the money, with 10 per cent, interest from date until paid, and to pay the interest semi- annually. Thus it was left discretionary with the holder of the order to demand the principal at once, or to retain the order and collect the interest semi-annually, until he chose to present it for the principal. The drawers of the order being so intimately connected with the drawee as to create and control the funds in his hands, the rule that it must be presented within a reasonable time, and notice of its dishonor given to the drawer, would not be appli- cable to this case. It has been held that such notice is not necessary where the drawer and acceptor are partners. Ji/iet v. Foe, 2 How. U. S., 457; Gowan v. Jackson, 20 John., 176. The connection between the commissioners and treasurer of a county is at least as intimate as that between copartners, and may, with great propriety, come under the 'rule. An order drawn by the commissioners upon the treasurer, is in effect the same as an order drawn by the county upon itself, to be paid under the direction of one officer by ajiother ; the same as one made by an indi- vidual upon himself, and to be paid by his agent or clerk at the depository of his funds, and thus may be regarded 472 SUPREME COURT CASES, steel V. Davis Co. more like a promissory note than a bill of exchange. Chit, on B., 28; Vamer v. Noblehorougk, 2 Greenl., 125. Regarding the order in this case in effect the same as a promissory note, the matm-ity of the indebtedness and the immediate liability of the county to a suit upon it, cannot, we think, be questioned. The case of Hasey v. White Pigeon Beet Sugar Co., 1 Doug., 193, has much analogy to the one at bar. In that case the body corporate, by its president and secretary, gave an order upon its treasurer to pay K, or bearer, a certain sum of money. The form of the order was iu sub- stance the same as the one in this case ; and the incorpora- tion was rendered liable to be sued to no greater extent than our counties are, and still the right to sue that incorporation upon such an order was not for a moment questioned, and it was held that the order was the same in effect as a promissory note ; that " it must be understood to be a promise to pay the amount presently, an acknow- ledgment of an immediate and unconditional indebted- ness, for which the plaintiff had a right to bring his suit at once." Apply the analogies of that case to this, and it appears manifest that the demurrer to the declaration was erro- neously sustained. When the county commissioners desire to avoid the immediate liability of a suit upon county orders, it is an easy matter for them to do so, by expressing the intended condition or period of payment in the order itself. If to be paid out of funds yet to be raised, and not otherwise appropriated, it should be so expressed. If no such con- dition or qualification is named in an order, it follows, as a legal consequence, that it is due and payable on presentment. Judgment reversed. D. P. Palmer and A. Hall, for plaintiff in error. H. M. Shelby and S. G. M^Achran, for the county. CASES m LAW AND EQUITY, . ' oetermhted in thx SUPREME COURT OF THE STATE OF IOWA, IOWA CITY, JUNE TERM, A. D. 1850, In the Fourth Year of the State, How. JOSEPH WILLIAMS, Chit/ Jutttee. Ho-v. JOHN F. KINXEY, ) , , Hon. GEO. GREENE, J -Juagea. HALL V. WASHINGTON" CO. Where an attorney is appointed by the court to defend a pauper prisoner, the county is liable for his fees. Whicker v. Cedar Co., 1 G. Greene, 217 ; overruled Error to Washington District Court. Opinion by Williams, C. J. John C. Harriman was indicted for murder in the district court of Washington county. He was tried and convicted. A writ of error was sued out on his hehalf. The case was tried at the June term of the supreme court at Iowa city, and the judgment of the district court reversed. When the cause Vol. II. 31 474 SUPREME COURT CASES, Hall V. Washinarton Co. was called for trial in tlie supreme court, the prisoner applied for tlie appointment of a suitable person to act as his attorney and counsellor. Whereupon the court, in compliance with the statute, appointed and directed J. C. Hall, Esq., to attend to his case as attorney and counsel- lor, and his services were rendered accordingly. Mr Hall, after the trial and judgment, obtained of the court a cer- tificate of his appointment, the services rendered, and that $100 was a reasonable charge for them. He soon after presented his bill for the $100, accompanied by the certificate of the supreme court to the board of com- missioners of Washington county, at their session for allowance. The commissioners refused to allow it, and entered their decision to that effect. An appeal, in com- pliance with the statute, was taken from the commission- ers' court to the district court of the county. At March term of the district court, the cause was tried, and judg- ment rendered against the plaintiff Hall for costs of suit, on the ground that the county was not legally liable to pay for services so rendered. The only question for decision here, is, as to the county of Washington being liable for the services of the attor- ney rendered in pursuance of the requirement of the statute in this case. The statute (Rev. Stat., 155, § 64) provides, that " The court shall assign counsel to defend the prisoner, in case he cannot procure counsel himself." It was upon this statute' the court acted, being satisfied that Harriman was a pauper, and unable to procure coun- sel for himself. The question has been heretofore adjudi- cated by the supreme court of this state. Whicher v. Cedar County^ 1 Gr. Greene, 217. The judgment of the court was then given by a mere majority of the judges, one dis- senting, and adverse opinions were delivered. It certainly is the great design of government, and it should be the aim of the judges to administer the law as it is, that its end — the establishment of right — may be secured. In accomplishing this task, which is often difficult, minds enlightened, and of the purest intention, will differ in the IOWA CITY, JUNE, 1850. 475 Hall V. ■Washington Co. couclusiou. It is also true that, whilst the estaHishment of right between man and man is the paramount object of law, it is highly important that, as a rule of action, it should be fixed and certain, so that it may be known and observed by those who are required to be subject to it. A decision made by the supreme court of the state should not be reconsidered and reversed upon doubtful ground, or little consideration. However, where the principle decided has a direct and important bearing on the ques- tion of right, in view of the essential and permanent in- terests of community, it is the duty of the court, regard- ing its own responsibility, upon due occasion, to review its former decisions with care and candor. This being done, if convinced and satisfied of error in the former decision, private and public interest, as well as justice to the court itself, require that its judgment should be cor- rected. In a court of last resort, this is the only mode of correction. It is quite probable that the district court, in deciding the case at bar, was governed by the case of Whicker v. Cedar County. The judgment is in accordance with the doctrine of that case. But we cannot coincide with the majority of the court in maintaining the doctrine there expressed by them. The prisoner Harriman was a pauper, unable to procure counsel for himself on trial before the supreme tribunal of the state, for the highest ofience known to the law ; his life at stake upon the issue, he threw himself as a citizen upon the provision of the law of his country, for the aid and protection which it guarantees to every citizen, when arraigned before the proper tribunal for trial. His complaint was, that in'* the proceedings of the dis- trict court, which had resulted in his conviction, there Avas error ; that he had not been convicted, by the due course of the law of the land. He claimed the right of a citizen of Washington county^ under the law of the state, to have counsel in conducting his case before the court, being un- able to procure that counsel for himself. Without disre- 476 SUPREME COUET CASES, Hall V. Washington Co. garding the law of the state, the court conld not deny him this right. Vide Rev. Stat., 155. Mr Hall was duly ap-- pointed. He acted by authority of the court. The court acted in obedience to the express mandate of the statute. Here, we think, is a case of statutory obligation, fixing a liability on the proper county to pay for the services of the attorney. The service rendered was not voluntary on the part of the court or the attorney, but it was in obe- dience to law. The court was bound to comply with the requirement of the statute ; and the attorney, as an officer of the court, could not refuse to act. Where an act ot service is performed in obedience to direct mandate of statutory law, under the direction of a tribunal to which the enforcement of that law is committed, reasonable compen- sation to the person who performs that service is a neces- sary incident ; otherwise, the arm of the law will be too short to accomplish its designs. If attorneys, as officers of the court, have obligations under which they must act professionally, they also have rights to which they are entitled, and which they may justly claim in common with other men in the business of life. Among these rights, that of reasonable compensation for services rendered in. their profession is justly to be considered. The exercise of judicial power, in order to effectuate thj common and statute law, frequently becomes necessary, and must exist incidentally. By virtue of such power, auditors, commis- sioners, masters in chancery, &c., are appointed and act, and proper compensation is awarded to them. All the officers of the court are recognized as being on just con- sideration entitled to fees for official services performed. All that has been done by the law is merely to limit them in amount. Why should the attorney at law be made an exception to this general principle ? We see no good rea- son for it. His time, labor and professional skill are his own. He should not be required to bestow them gratui- tously at the will of the court, any more than should any other officer. But it is enough here to say that, whilst the statute requires the court to ajopoint counsel in a case IOWA CITY, JUNE, 1850. 477 Hall V. Washington Co. like this, it is silent on the subject of pay for his services. It leaves that matter to be disposed of upon the principles of the practice of the common law. There certainly is no legal exception as to an attorney, so as to distinguish his case from any other functionary. In deciding the case of Whicker V. Cedar Co., the court took the ground, "that there is no statute providing for compensation for services rendered in such cases. If the board of county commis- sioners choosy to compensate an attorney for such services, we see no objection. But this is a matter left to their discretion." We cannot see how this position could operate in denial of the plaintiff's right of action. It seems to be admitted there, that the attorney was entitled to pay for his services. That the commissioners had proper authority to allow his fees ; but it is decided that they might make the allowance or not, in their discretion. This, we think, is untenable. If the attorney was entitled to his compensation, under the law, and if the commissioners were authorized to pay him for his services, they had and could exercise no discretionary power. They are officially existent only by operation of the statute law. They could only act under its authority. In this case, the right of an action in the plaintiff does not arise from an express contract ; but it is necessarily given by the statute. The statute authorizes the appointment of counsel, in defence of a pauper when accused of crime, in view of the right of that counsel to compensation for the service rendered, in obedience to that law, as an incident necessarily attaches a liability for the services to the county which is properly chargeable with the maintenance of the proceeding. This view of the case is sustained by the supreme court of Vermont. Wolcott v. Wolcott, 4 Vt., 37 ; Vermillion Co. V. Knight, 1 Scam., 97. In the case of Whicker v. Cedar Co., the court adverts to the necessity of legislative interference in order to provide for compensation of this kind. We are of the opinion, that the act requiring the court to appoint counsel for the prisioner is quite sufficient for that purpose, as we 478 SUPREME COURT CASES, Hall V. Washington Co. have shown. If it were not, however, when the duty enjoined had been performed by the counsel, his right to his pay for it had accrued. The prisoner being a pauper, the liability attached to the county of which he was a citizen. The right of the attorney to compensation was complete, without further legislative enactment. This is not a case of voluntary services. It is a fundamental rule of right, established by the constitution of the United States, "that private property shall not be taken for public use without just compensation." The service was required by competent legal authority, which, having been rendered, the attorney is entitled to his pay for it. It has been urged that the prosecution being conducted by a prosecuting attorney, who is paid by the county, there is an inconsistency in requiring an attorney to act in defence of the accused, and then to allow him compen- sation from the county treasury. We have alread}^ shown that the prisoner was a pauper, depending on the county in this matter. But furthermore, he is a citizen to whom rights in common with others are guaranteed by the con- stitution, among which is " the assistance of counsel for his defence." Art. 6, Constitution, U. S. He in this, was entitled to the protection of the law, which has humanely provided for every citizen in like circumstances, " a speedy and public trial by an impartial jury," and the assistance of counsel for his defence, so that he may have a fair opportunity of making his innocence manifest. We con- sider this view of the design of our legislative enactment, and the right of the attorney under it, as conforming to the enlightened spirit of the present age. So limited and restricted is the sphere of action prescribed for the judge, as to proceedings on trial touching matters of fact, that without the aid of able and experienced counsel, the poor and ignorant man would often find accusation and prosecu- tion tantamount to conviction. The innocent would have their lot with the guilty in suffering the penalty of the law. It is not presumable that this humane provision of the law for the protection of the accused, but innocent, poor IOWA CITY, JUNE, 1850. 479 Diltz V. Chambers. citizen, was intended by the legislature to be at the ex- pense and in violation of the right of the citizen, whose profession is that of an attorney. This view of the question is ably presented in the opinion of the judge who dissented in the case of Whicker v. Cedar Co. By this judgment of the case, the constitu- tional and legal rights of the accused citizen are secured, as also are those of the attorney at law. The consistency of the law is preserved, and the liability is justly applied. The judgment of the district court is reversed and a venire de novo awarded, for proceedings to be had not inconsistent with this opinion. Judgment reversed. N, Everson, for plaintiff in error. Patterson and Smyth, for the county. DILTZ et al. v. CHAMBERS. A writ is not served upon a party in the manner provided by statute by " leaving an attested copy at liis place of residence with a member of the family over the age of fifteen years," unless the contents of the writ are stated. It is error to render judgment by default against a party, unless he was legally served with process. Error to Cedar District Court. Opinion hy Kinney, J. Action of assumpsit brought by Chtxmbers against Stockton and Diltz upon a i^romis- sory note calling for $220. A summons was issued upon which the sheriff made the following return: " Served the within on Peter Diltz on the 31st day of August, A.D. 1849, by leaving an attested copy at his place of residence witli a member of the family, over the age of 480 SUPREME COURT CASES, Diltz V. Chambers. fifteen years. Served the within on James D. Stockton, by reading." Stockton pleaded to the declaration, and a judgment was rendered against Stockton, upon the issue joined, and ao-ainst Diltz hv default. The defendants below sued out a writ of error, and the only error assigned necessary to consider is, that the court erred in rendering judgment against Peter Diltz by default, when there had not been any legal service upon him. The statute provides, " that all writs of summons issuing from any court of record in the territory, shall be served by reading to the defendant if found, and if not found by leaving a copy thereof attested by the officer serving the same at his dwelling house, or usual place of abode, with some person of the family of fifteen years of age or up- wards, and stating the contents to said person." Rev. Stat, p. 475, § 30. This is a plain statutory requirement. It directs the manner of serving a summons when the defendant shall not be found. It requires the officer to do two things, both of which are necessary to constitute the service, to wit, leaving a copy with some member of the family of the age of fifteen or upwards, and stating the contents of the summons to said person. If either of these is neglected the service is not complete. Stating the contents is as essentially a part of the service as leaving the copy. Neither can be dispensed with. When the statute points out the manner of service, the officer must follow its directions. It is the service which brings the defendant into com-t, and unless the return shows the writ to have been served according to the statute, the defendant is not obliged to respond to it. The return of the officer should show a strict compliance with the law, as nothing will be presumed in its favor, when it appears that the require- ments of the statute have not been observed. In this case, Diltz not having been legally served with process, he was not in default, and hence a judgment by default was improperly rendered against him. IOWA CITY, JUNE, 1850. 481 Carothers v. Tan Hagan. The judgment agaiust him is therefore reversed at the costs of the defendant in error, and the judgment against Stockton is affirmed. John P. Cook, for plaintiffs in error, S, A, Bissell, for defendant. » **♦■ < ■ CAEOTHEES et al v. VAN HAGAN" et al In an action of replevin against two or more, it is error to instruct the jury, that " if either of the defendants was not guilty, they must find for both ; that one alone could not be found guilty." Error to Muscatine District Court. Opinion by Greene, J. Replevin by Carothers against J. P. and J. B. Van Hagan. Verdict before a justice for the defendants, and an appeal taken by plaintiffs to the district court, where the jury found one of the defendants not guilty; and thereupon both were discharged upon the instruction of the judge, -that if either of the defendants was not guilty, they must find for both of them ; that one alone could not be found guilty unless both were, as charged in the affidavit, even if the property did not in fact belong to the plaintiffs. With much propriety, the plaintiffs contend that this instruction was erroneous. No such principle is recognized by our statute ; and as a gen- eral rule of law, in all actions for Avrongs, any of the wrong- doers may be jointly or severally proceeded against, and the misjoinder of an innocent person b}' mistake Avill not defeat the action, as it might in a suit on contract. Where several axe sued for a tort, one or more may be convicted nnd held in damages, although a part of them be ac- quitted. 1 Chit. PL, 1)8, 99 ; 1 ^Sand., 291 d (mx) ; 6 T. P., . v6; Gould PI., 209, § 7.5; 1 Cowen's Trs., 560, § 4; 1 Salk., 482 SUPREME COURT CASES, McCasky v. School District No. 1, &c. 32. As replevin is founded in tort, a failure to sustain the action against one will not justify a discharge of the other defendant. As this point disposes of the case, it is not necessary to consider the other errors assigned. Judgment reversed. S, Whicker, for plaintiffs in error. Hampstead and Burt, for defendants. - > • » » -<- McCASKY V. SCHOOL DISTRICT No. 1, IN CENTRE TOWNSHIP, CEDAR COUNTY. Where the inhabitants of a school district levied a tax upon themselves, and sufficient had been collected for the purpose of paying a teacher a balance, his due, for which he had an order on the treasurer, and the officers of the district refused to pay the order after a proper demand ; it was held that the teacher might recover, in an action upon the order, against the district. Error to Cedar District Court. Opinion by Williams, C. J. McCasky, the plaintiff below, sued school district No. one (1) of Centre township, Cedar county. He commenced his action before a justice of the peace in assumpsit, on the following order : ii-^ ■\c, ' " Tipton, Cedar County, Iowa, March 10, 1847. " The assessor of school district No. 1, of the township of Centre, in the county of Cedar, and state of Iowa, will pay Reuben McCasky, or order, the sum of $25 for ser- vices as school teacher in said district, being the balance ^ue him this day on settlement, out of any funds in the treasury not otherwise ajipropriated. " Wm. H. Tuthill, . ]!iIoderator of said district. ** Attest: J. G. GiLLiTT, Director." IOWA CITY, JUNE, ISoO. 483 McCasky v. School District No. 1, &c. On the 16tli of March, 1850, the cause was tried by a justice of the peace, and judgment rendered for the plain- • tiff for $25, and costs. An appeal was taken by the defendant at the April term of the district court for Cedar county. The cause was tried on the appeal, and a verdict and judgment obtained for the defendant, with costs of suit. It appears by the bill of exceptions that on the trial in the district court the following facts were proven : " That the directors of the school district in October. 1846, contracted with the plaintiff to teach a district school in said district. That he did teach, and after fulfilling the contract, he settled with the directors, and received from them thereon $35, being the amount of money belonging to said district for that year, leaving a balance due to him of $25. That the defendants issued then- order on the assessor of the district for the balance of $25, being the same of which a copy is above given. That the inhabitants of the district levied a tax to pay the indebtedness of the district to the plaintiff, for which the order was given. That plaintiff had demanded the money called for by the order of the proper officer of the district. That payment had been refused out of a tax raised as a fund in 1849, on the ground that there was no money in the treasury at the time, notwithstanding more than sufficient had been in the hands of the officers of the district from time to time to pay the plaintiffs order, and paid to the treasurer from the assessment of the tax laid in the district." These facts being in evidence, the counsel for the plaintiff asked the court to charge the jury : " That if the jury believe that the inhabitants of the district levied a tax upon themselves for the purpose of paying the claim on which this suit is brought, and a tax sufficient was collected, and in the hands of the trea- sm-er, or the proper officer, arising from said assessment, and the officers of the district refused to pay it over or liquidate this claim, that the said plaintiff can recover in this action, provided he has made the proj)er demand, and payment was refused." This instruction was refused. 484 SUPREME COURT CASES, McCasky v. School District No. 1, &c. Before the cause was finally submitted to the jury, the judge gave general instruction as follows : " If the jury believe from the evidence that McCasky was employed under the act of 1846, and that he was paid by the officers all of the teachers' fund which was in the treasury for that year, and that this order was given to McCasky for the balance, the law requires this balance of McCasky to be paid thus : the deficit is to be assessed upon the parents or guardians of the children in proportion to the length of time they shall have severally attended school during the term when such deficiency arose ; and before McCasky can maintain a suit of any kind on this order, the money must have been collected, and paid by the collector into the school district treasury. There is no other law than the act of 1846 which provides for the payment of this teacher's salary, and it matters not if other moneys have been collected and expended in the school district, in pur- suance of other acts of the legislature ; they do not affect the case of the plaintiff, and he cannot recover except under the act of 1846." The law and the facts upon which the judgment of the district court is founded, being here presented, we will now proceed to consider them in order to final adjudica- tion of the points raised. The contract sued on is valid, having been made by the officers of the school district witli McCasky, by authority of law, on the 10th of March, 1847. The services for the payment of which the order was given, had been rendered to the district by McCasky, between the month of October, 1846, and the time of the date of the order, March 10, 1847. The fund for that year lacked $25 of being sufficient to pay plaintiff's demand for teaching. For this the order was drawn on the treasury. On the 2d day of June, 1849, there was a school district meeting legally called, and held for the purpose of voting a tax to pay the debt due to McCasky and another. The tax Avas voted, raised, and paid into the district treasury. Here, then, the fact is established of record in the case, IOWA CITY, JUNE, 1850. 485 McCasky v. School District No. 1, &c. that the school district in 1849 was legally in possession of the fund specially raised by the parents or guardians of the children, or the legal voters of the district, to pay the amount of McCasky's order, which had been previously given ; payment of which had been demanded. The whole transaction seems to have been conducted by the school district officers as such, in reference to the provision of the statute, which is as follows : " Section 5. That when- ever the amount of money received by any school district, from the fund created by this act, shall be insufficient to pay for the services of the teacher, the deficit shall be assessed upon the parents or guardians of the children, in proportion to the length of time they shall, severally, have attended school during the term when such deficiency shall have arisen." Laws of 1846. The eighth section of this act expressly repeals the third article of the eighteenth section of the act of 1840. The repealed section is different from that in force, only in this, that the former relates to " the money voted together with the apportionment,''^ and the latter, " to the amount of money received by any school district.'''' Otherwise they are substantially the same. So far, then, as the school district officers acted in the matter, we find nothing to have been done by them which was not in substantial conformity with the provisions of the act of 1846 ; and the final and general instruction of the jndge, so far as it applies to the case as affected by the statute, is well enough. But it was error to refuse to give the instruction asked for by the plaintiff's counsel, as above stated. This special instruction should have been given. By the giving of the order, the raising and reception of the tax fund for the special purpose of paying McCasky, the school district officers acted within their proper sphere, so as to establish a liability on the part of the district to appropriate the fund for the purpose intended, which was to pay the amount due to McCasky on the order. It was the duty of the district under the provisions of the law, to provide the fund necessary to pay the teacher for services rendered 486 SUPREME COURT CASES, Harlan v. Moriarty. in virtue of the contract made with him, bj its proper officers. They were the persons on whom rested the re- sponsibility of judging of the time for which the teacher should be employed, and of the sufficiency of the fund to pay him for his services. We cannot see why the district should be released from the contract thus made by its officers, when the benefit thereof had been received by it, and the whole matter fully recognized by the parties, as honajide and official. A different view of this case, we think, would work great mischief, and thwart the intention ( f the law, by enabling the school district officers to neglect or decline carrying out its provisions in reference to the procurement of the means to pay teachers, who might render like service, confiding in such officers for the faithful performance of their duty in accordance with their contract. Judgment reversed. John P, Cook, for plaintiff in error. S. A. JBissellf for defendant. HARLAN' V. MORIARTY. C. was garnisheed in an attachment suit against M., and in his answer it appeared that he had collected funds belonging equally to B. and M. ; that both of them claimed the whole amount, but as they had assigned the claim to him, and he believed the assignment vested in him the money, he divided the amount equally in two packages, placing each by itself ; that he had paid to B. his half, who at the same time demanded the other half, which he held subject to the order of M. Held that the funds re- maining in C.'s hands were subject to the payment of M.'s debta. Errob to Johnson District Court. Opinion hy Kinney, J. The plaintiff in (^vror sued Moriarty by attachment before a justice of the peace, and garnisheed John M. Coleman. Coleman in reply to the IOWA CITY, JUNE, 1850. 487 Harlan v. Moriarty. interrogatory, whether he had any money or property in his hands at the time he was garnisheed belonging to Moriarty, answered, that a certain claim of Ballard & Moriarty against the government of the United States, for publishing land sales in the " Iowa Eepublican," was for- warded to the commissioner of the general land office, assigned to him by said Ballard & Moriarty, amounting to the sum of $144. The whole amount was claimed by said Ballard, and also by said Moriarty, respectively, and believing the assignment to vest in him the money, he determined to divide it equally between the parties, after deducting $12 which Moriarty had directed him to pay one Eliza J. Jones. That he put up $72 in one package, and $60 in another, on the evening of the day of service of the said attachment, and offered the said Ballard the $72, which he refused to receive without the whole, saving the $12 for Mrs Jones, which he con- sented witness might retain. That on the evening of the same day after the service of the attachment, Ballard con- sented to receive the $72, demanding at the same time the balance in his hands. The balance witness states to be $60, after deducting the $12 as aforesaid. That in the letter to him from Moriarty, he directed him to pay in addition to the $12, $10 to Gen. Morris, and forward the balance. Upon this testimony, the justice rendered a judgment in favor of Harlan for the sum of $16.66f against the said Coleman, as garnishee, as part and parcel of the said sum of $60, and ordered that the same be credited on the judgment of James Harlan against Peter Moriarty — the balance of $60 having been applied on the judgment of James Robinson v. Peter Moriarty. From this judgment Coleman appealed to the district court. A motion was made and sustained in the district court, to dismiss the garnishment, and aa order entered dia- charging the garnishee and requiring the money paid over by said Coleman, in the hands of the clerk, to be returned 488 SUPREME COURT CASES, Harlan v. Moriarty. to him. Whereupon Harlan sued out a writ of error, and assigns for error this decision of the court. We believe this assignment to be well made. By the decision of the court discharging the garnishee and re- funding to him the money, the court has evidently treated the assignment of Ballard & Moriarty as made for the ustj and benefit of said Coleman, and the money collected upon it as legally belonging to him, whereby Coleman, as is evidently disclosed by his testimony, did not so consider it. He was willing to divide the money equally between the parties, to pay Moriarty's orders out of the amount belonging to him, and did pay over to Ballard $72, being half of the money, on \\\e, day of the service of the attach- ment. The money was divided and put into separate pack- ages, and it is highly probable from his statements, if he had not been garnisheed, the portion belonging to Moriarty would, in pursuance of his orders, have been forwarded to him. We can come to no other conclusion from the testimony of Coleman, than that the assignment was merely to enable him to collect the money, and that in 80 doing he was acting as the trustee of Ballard & Moriarty, and that the funds, when collected, belonged to both in equal proportions. But the argument assumed in this court by the counsel for the defendant in error is, that the money in the hands of Coleman, if it does not belong to him, is partnership money belonging to Ballard & Moriarty, and not liable to attachment or garnishment. That the interest of Moriarty in the partnership fund could alone be attached. The rule is well settled, that when two or more individuals own an undivided interest in j)roperty, and attachment or execution issue against one of them, the interest of the debtor in the property, and not the specific article, can alone be seized and sold. The necessity of this rule is, 1st, The legal indivisibility of many kinds of property; and 2d, The hardship and injustice to the co-owner of an absolute severance of the interest without his con- gent. IOWA CITY, JUNE, 1850. 489 Harlan v. Moriarty. But under our statute, in case of garnisheeing or attach- ing money in the hands of a third person, susceptible as it is of a perfect division, the reason and necessity of the rule ceases, and although another person may own a portion of the money, we know of no reason why the money itself helonging to the debtor is not as much the subject of gar- nishment as the interest which the debtor may have in it, and especially when that interest is clearly defined and made known by dollars and cents. In tliis case Moriarty had not an undefined and inde- finite interest in the funds in Coleman's hands. He was entitled, from the testimony of the garnishee, to $60, or nothing. The money had been divided, and Ballard had received his proportion, and the residue Coleman treated as Moriarty' s. There is no evidence to show that Ballard was entitled to more than he obtained, neither is it contended that the division did not mete out ample justice to the parties. The contest for this money is not between Ballard and Moriarty, but between Coleman and Moriarty (or Moriarty's creditor). If the money belonged to Moriarty, an. I was so set apart by Coleman, as is con- clusive from his testimony to have been the case, it was liable under the statute while in Coleman's hands to the payment of Moriarty's debts, and Coleman could no more resist the demands of the law upon it than the demand of Moriarty himself. As the case is presented to us, we think the court erred in dismissing the garnishment, and ordering the money to be refunded to Coleman. Judgment reversed. C. Bates J for plaintiff in error. W, Penn, Clark^ for defendant. Vol. II. 82 490 SUPREME COURT CASES, Lucas V. Snyder. LUCAS V. SNYDER. An agreement stipulated that the defendant should build a house in a certain manner, and have it completed on or before the 1st day of March, 1S45, for which the plaintiff paid $400 down, and was to pay $600 on the said 1st day of March. In an action on the at^reement for failing to complete the house within the time and in the manner specified, the declaration averred that the plaintiff was ready and prepared to pay according to the effect of the agreement. Held that the declaration was good without alleging the payment, or an offer to pay the Error to Muscatine District Court. Opinion hj Greene, J. This was an action of debt commenced by the plaintiff in error against Thomas Snyder in the district court of Johnson county. Venue changed to Muscatine county. Demurrer to the declara- tion sustained, and judgment rendered for the defendant. The question now raised is, Did the court err in declaring the declaration to be insufficient? The declaration was framed upon an article of agreement, by which Snyder undertook to furnish materials, and construct for Lucas a good and substantial brick house according to stipulated plans and specifications, upon a piece of land adjoining Iowa city to be pointed out by Lucas ; and it was stipu- lated that the building should be completed on or be- fore the 1st of March, 1845. Snyder bound himself to a true performance of the agreement in the penal sum of $1000. As preliminary to the foregoing stipulations, the agree- ment witnessed that Lucas should pay to Snyder $400 at the signing of the articles, "and $600 on or before the Lst day of March, 1845, and for the true payment of which he binds himself, and assigns firmly by these pre- sents." The declaration avers that Lucas performed the con- ditions of the agreement on his part by paying the $400 at the signing of the agreement ; by designating the piece IOWA CITY, JUNE, 1850. 491 Lucas V. Snyder, of land upon which the house was to be built ; and by being ready and prepared to pay the $600 on the 1st day of March, according to the tenor of the agreement. The declaration then sets forth several jjarticulars in which Snyder failed to have the house completed by the 1st day of March as stipulated in the contract, and claims a for- feiture of the penal sum mentioned in the agreement. But the declaration does not aver a performance, or an offer to perform by Lucas so far as the payment of $600 is concerned. It merely alleges that he was ready and prepared to pay according to the effect of the agreement, and in this particular it is contended that the declaration was defective. This position could not be disturbed if that payment could properly be regarded as a condition precedent to the building of the house, and if the declara- tion did not show that the j)laintiff had given the defend- ant notice of his readiness to perform. According to our view of the situation and true intention of the parties as disclosed in the agreement, the declaration avers perform- ance of all those conditions on the part of the plaintiff which can be regarded as precedent, and that Snyder's covenant to complete the house on or before the 1st day of March, 1845, does not rest or in any way depend upon the covenant of Lucas to pay the $600. We regard them as mutual and independent covenants. The nature of the two covenants, the order of time in which the work was to be performed, and the payment made, shows conclu- sively that the former had to be in process of execution, and finally completed before the day of payment, and consequently, as the acts could not be simultaneously per- formed, it could not partake of that characteristic of dependent covenants. The doctrine is well settled, that where an act is to be done by one party before the con- sideration act is to be done by the other, the covenants to do those acts are independent. Tileston v. Newell, 13 Mass., 410; Conch v. In^ersoll, 2 Tick., 300; Cunning- ham V. Morrell, 10 John., 203 ; Goodwin v. Holbrook, 4 Wend.. 377 ; Craddoch v. Aldndge, 2 Bibb., 15. 492 SUPREME COURT CASES, Patterson v. State of Indiana. Apply that rale to the present case. To enable the defendant to perform the work within the stipulated time, it became nesessary for him to commence acting long be- fore the day of payment, in order to have the work com- pleted on or before that day, as stipulated. From the nature and terms of the contract, it cannot be claimed that the defendant made the last payment a condition precedent to his liability to perform the work ; for that payment was not to be made by the plaintijBT until the day by or before which the defendant should completely perform his j)art of the agreement. His failure to do so rendered him liable on the agreement even before a breach of the plain- tiff's covenant to pay could occur. How then could the performance of the work be in any way dependent upon the payment ? There is another very good reason why those covenants should not be regarded as dependent. It appears to be a rule of law that a covenant with a penalty annexed will always be considered as independent. Freelandw. Mitchell, 8 Mis., 487. We therefore conclude that the covenant upon which this suit was commenced is independent, and that the declaration is sufficient. Judgment reversed. W. P. Clark and H. D. Downey y for plaintiff in error. S, Whicker and J, D, Templin, for defendant. PATTERSON" et al. v. STATE OF INDIANA. Where a power of attorney authorizes a judgment to be confessed for "an amount that may l)e found due " on the note therein described, and is in IOWA CITY, JUNE, 1850. 493 Patterson v. State of Indiana. BufScient form in all otlier particulars to give the court jurisdiction over the subject matter and the parties, it gives sufficient authority to confess a judgment, which cannot be collaterally impeached for mere irregu- larity. The judgment of a court, having jurisdiction of the parties and the subject matter, is conclusive so long as it remains unreversed. A sherifi"'s return may be so amended as to set forth truthfully the facts of the service. Error to Muscatine District Court. Opinion by Williams, C. J. This is an action com- menced in the district court of Johnson county. The venue was changed to the county of Muscatine, in the second judicial district of Iowa. The plaintiff sued in deht on the record of a judgment, certified from the circuit court of Fountain county, in the state of Indiana, obtained at the September term of said court, on the 10th day of October, 1844. The judgment, as certified, is for the sum of $689.56 debt, and the fm-ther sum of |74 interest, and also 15 per cent, damages on the amount of the note, on which judgment was rendered, amounting to $103.43: making in all the sum of $886.99, with 95 cents costs of suit. The certified copy of the record of the proceedings had in the circuit court of Fountain county, Indiana, shows that the action was there instituted by the plaintifi", by filing of record the following note of the defendants, viz. : " $689.56. Twelve months after date we, or either of us, promise to pay David Brier, as seminary trustee for Fountain county, Indiana, or his successor in office, the sum of six hundred and eighty-nine dollars and fifty- six cents, with seven per cent, interest, from date until March 23, 1843." This note is signed by the defendants, Patterson and Carleton, and sealed with their seals. At the same time, as appears by the record, David Brier, their attorney in fact, appeared in open court, and proved the execution of a warrant of attorney from said defendants. 494 SUPHEME COURT CASES, Patterson v. State of Indiana. dated the 5tli of August, 1844, at Johnson county, Iowa, authorizing and empowering him, or any other attorney at law in the state of Indiana, to apjDear for them in the circuit court of Fountain county, Indiana, at the next September term, or any other term of said court, and waive the issuing and service of process, and enter his appear- ance, and waive a declaration in debt in favor of the state of Indiana, for the use and benefit of the seminary fund of the county of Fountain, and confess said action for such sum as shall appear at the time of confessing judgment to be due upon a promissory note given by us in the words and figures following, to wit." The note, as above stated, is here inserted in the power of attorney, which concludes as follows: "And to permit a judgment to be then and there entered against us for such sum, and for the damages and costs chargeable thereon : and we hereby release all errors which may in any manner happen in any part of the proceedings in said action, and to waive all right and benefit of appeal ; and for what said attorney shall do in the premises, this shall be a sufficient warrant." Judgment was thereupon confessed, and entered by the court for the aforesaid sum, as debt, interest and damages. When this cause was removed to Muscatine county, at the May term of the district court, the defendants moved to dismiss the suit for the reason that summons had not been served. Whereupon, on motion of the plaintiff, the return of the sheriff who had served it was amended by leave of the com-t, which answered and obviated the ob- jection to the service. The defendants then craved o^er of the record, on the plaintiff's declaration mentioned. Thereupon a demurrer was filed. The demurrer was overruled. Judgment for the debt, interest, damages and costs was then entered for the plaintiff. The defendants set forth three causes of demurrer : " 1st 5 The power of attorney in said record contained, IOWA CITY, JUNE, 1850. 495 Patterson v. State of Indiana. and by virtue of whicli said judgment was rendered, is, and was, void for uncertainty. " 2d, The said judgment is rendered for damages not warranted by the power of attorney. " 3d, The said judgment is rendered for a sum not war- ranted by the power of attorney, and is illegal and void." These are the points made by the defendants on tlie demurrer in the court below, upon which the ruling of that court was had, and of which they now complain. Vie find no error in the judgment of the court below. The defendants, by their power of attorney duly executed, acknowledged the indebtedness, and empowered David Brier, an attorney at law of the state of Indiana, to appear for them in the circuit court of Fountain county, in that state, at the September term thereof, or any other term, and enter their appearance, and waive a declaration in debt in favor of the state of Indiana, for the use and benefit of the seminary fund of the county of Fountain, and confess said action for such sum as should appear at the time of confessing judgment to be due upon a promissory note given by them. The note and the power of attorney, as of record, show the authority which, by the voluntary act of the defendants, was given to the attorney. The judgment was confessed by him in accordance therewith, under the supervision of the court. By the power which authorized the appearance by attorney, and which was duly proved before the confession, the court had jurisdic- tion of the persons of the defendants ; the subject matter was also such that it was clearly within the jurisdiction of the court by which the judgment was rendered. The power, therefore, to act in the matter is indisput- able ; as the circuit court of Fountain county, Indiana, is possessed of general jurisdiction, the case was there pro- perly cognizable. This being the state of the case, and the record being duly authenticated, can the defendants be permitted in this action to go behind the judgment of the circuit court of Fountain county, to impeach it for irregularity, and set that up as a defence here ? We think 496 . SUPREME COUHT CASES, Patterson v. State of Indiana. tliey cannot. If the court had acted without jurisdiction of the persons of the defendants, without their consent or waiver; if it had not jurisdiction of the subject matter, or if there had been fraud in the obtaining of the judg- ment, then, in either of these cases, the validity of the judgment might be impeached by proper pleading^ and the district court might have inquired into and adjudi- cated these matters. The defence there preseated consisted of irregularities for which the defendants had, and if true, might have obtained, ample redress in the supreme court of the state where the judgment was rendered. This legal mode of redress has not been resorted to by them, and therefore they must be left to the legitimate consequences of their own laches. The judgment of a court having juris- diction of the parties, and of the subject matter of the action, is conclusive between the parties to the action, so long as it remains unreversed. Warburton v. Atkin, 1 McLean, 460; La Grange Y.Ward, 11 Ohio, 257; Sm^- gart v. Harber, 4 Scam., 364; Evarts v. Gove, 10 Yt., 161 ; Granger v. Clark, 9 Shep. , 1 28 ; Mitchell v. State Bank, 1 Scam., 526; United States Bank Y.Voorhees, 1 McLean, 221. The principle upon which this court decides the case at bar is clearly set forth in the case of Cook v. Dar- ling, 18 Pick., 393. It is there decided, that "in an action of debt on a judgment of the court of common pleas, the judgment cannot be impeached, or avoided as erroneous by plea, but the remedy is by writ of error." The reason there assigned is, that "the judgment is of a court of common law jm'isdiction, to which a writ of error lies to reverse it if erroneous." It would be otherwise if the matter complained of were such as to be incorrigible by writ of error. It will not be contended here that the matters complained of could not have been corrected, if true, by resort to a writ of error, as they would be found of record, and appertained to the jurisdiction of the court by which the judgment was rendered. We think it unnecessary to discuss at length the other question presented by the assignment of the plaintiffs In IOWA CITY, JUNE, 1850. 497 Robinson v. Moriarty. error. It is enough to say that where the return of a sheriff aa to service is imperfectly indorsed on the Avrit, the court may before trial, on motion, grant leave to amend it, so as to set forth therein ti-uthfully the facts of the service. Judgment affirmed. Wm. G. Woodward, for plaintiffs in error. G. Folsom, for defendant. EOBINSON V. MORIARTY. Au attachment will hold all chattels, moneys or evidences of debt, or any interest which the debtor maj' have in them. Where C. had collected funds for B. and M., and paid to B. his portion, and where no creditors of B. and M. as partners claimed the funds remaining in the hands of C, it was held that they were liable for the individual debts of M. Error to Johnson District Court. Opinion by Kinney, J. Robinson sued Moriarty by attachment before a justice of the peace, and garnisheed John M. Coleman. The facts in relation to the money in the hands of the garnishee are the same as in the case of Harlan v. Coleman* and Coleman's answer not mate- rially different from his testimony in that case. The jus- tice rendered judgment against Coleman as garnishee, and credited the same upon the judgment in favor of Robinson v. Moriarty. Coleman appealed, and on his motion in the district court the garnishment was dis- missed, and a like judgment entered as in the case before mentioned. Robinson brings the case to this court, rely- ing for a reversal upon the error of the court in sustahiing the motion. It is also contended in this case by the ♦ Ante, -180. 498 SUPREME COURT CASES, Robinson v. Moriarty. counsel for the defendant in error, that the fuilds in Coleman's hands were partnership funds, and consequently no portion of them liable to be taken by attachment, or subject to be garnisheed by the creditors of Moriarty. An examination of the statute on this subject, and a proper application of it, we think will settle this question beyond controversy. By the second section of the act regulating attachments before justices of the peace, the justice, upon the proper affidavit being made, is required to issue a writ of attach- ment against the property and effects of the defendant. And in the third part of the fourth section, it is provided, that when goods and chattels, money or evidences of debt are to be attached, the constable shall seize the same, and keep them in his custody, if accessible ; and if not access- ible, he shall declare to the person in possession that he attaches the same in his possession, and summon such person as garnishee. Under this statute the proceedings in this case were conducted, and, as far as appears from the papers, the pro- visions of the statute were strictly complied with. It is only necessary to remark in this case, in addition to what was said in the case of Harlan v. Coleman, that under this statute, Coleman, as garnishee, was obliged to disclose any and all interest Moriarty had in the funds in his hands, and if that interest, when so disclosed, was susceptible of being reduced to an amount certain, the specific sum would be held by the attachment. If, however, by the testimony, it proved to be a mere interest^ then the interest alone was held by the attachment, and could have been sold upon execution. The writ, by virtue of the statute, would reach all cliat- tels, moneys or evidences of debt, and also any interest in either which the debtor might have in the hands of a third person. But in this case, as in the case of Harlan v. Colemany the amount in the hands of the garnishee was certain and fixed, and we cannot see, even if Ballard and Moriarty IOWA CITY, JUNE, 1850. 499 Lucas V. Snyder. were partners, (the former having received his proportion,) how that fact should affect the remaining fund, so as to protect it from attachment. The fact of Ballard and Moriarty being partners, and the money in Coleman's hands partnership funds, would not protect the amount belonging to Moriarty from gar- nishment. True, from the great weight of authority, the partnership creditors would in equity be first entitled to the payment of their claims out of the partnership assets, in |)reference to sejjarate creditors. But in this case there is no evidence that there were any such creditors. If, however, there were such, they could enjoin the funds in the hands of Coleman, and a court of equity would, if they were partnership funds, have appropriated them for the benefit of the creditors. But as no such steps were taken, and as there was no interference on the part of the part- nership creditors to prevent the payment of the money to the separate creditors of Moi'iarty, we think the court erred in dismissing the proceeding and ordering the money to be refunded to Coleman. Judgment is therefore reversed, aud a trial de novo awarded. Judgment reversed. *o' (7. Bates^ for plaintiff in error. Wm, Penn, Clarkj for defendant. > ♦ » ♦ < LUCAS V. SNYDER. When an instruction extends merely to the legcal effect and meaning of an instrument, it cannot be objected to as an instruction upon the facts in the case. Error to Muscatine District Court. Opinion hy GtReene, J. This was an action of assump- sit commenced before a justice of the peace in Johnson 500 SUPREME COURT CASES, Lucas V. Snyder. county by Thomas Snyder against Robert Lucas. Judg- ment for the plaintiff. Defendant took an appeal and obtained judgment in district court. New trial granted; venue changed from Johnson to Muscatine district court, and there the plaintiff obtained a verdict and judgment for $70. The suit was instituted to recover the value of certain plastering done by the plaintiff in a dwelling house for the defendant. This house had been built by Snyder under a contract to finish the same in complete order except the plastering of the upper story. The account appears to have been for jjlastering the upper story, which was not included in the above contract. On the trial Lucas gave in evidence a receipt from Snyder for " $500 for work done on a house in accordance with the annexed plan." The court instructed the jury that the " receipt does not, from its terms, refer to such plastering as was excluded from the written contract. And for this instruction it is contended that the judgment should be reversed. In support of this position, it is assumed that the charge involves a question of fact which comes alone within the province of the jury. But we do not consider it an instruction upon facts. It is one of construction only, involving the legal signification and extent of the receipt. It was therefore a subject upon which the court could with propriety charge the jury. As the instruction extended merely to the legal effect and meaning of the instrument before the court, and as the other proceedings in this case were substantially cor- rect, the judgment below cannot be disturbed. Judgment afifirmed. W. Penn. Clark, for plaintiffs in error. S. Whicker and J. D. Templin^ for defendant. IOWA CITY, JUNE, 1850. 601 Holmes v. The State. HOLMES V. THE STATE. A proceeding against the father for the support of hia illegitimate child ia not in the nature of a criminal action, and therefore, under the constitu- tion, the defendant is exempt from imprisonment; and that portion of tlie bastardy act which autiiorized such imprisonment is repealed by the con- stitution. Errok to Muscatine District Court. Opinion hy Kinney, J. Complaint made before a justice of the peace by Mary Margaret Sheely against the plaintiff in error under the act concerning bastardy. Holmes was held to bail in the sum of $200 for his appearance at the next term of the district court, where, upon trial before a jury, he was found guilty. The court thereupon adjudged that he stand charged with the maintenance of the child in the sum of 50 cents each week, for the period of two years, from the 8th of October, 1846, (the birth of the child,) and after that time that the said Holmes stand charged with the maintenance of the child in the sum of $52 a year until the child was seven years of age ; and among other things it was further ordered and decreed that the said Holmes give security to perform the order of the court, and in case of neglect or refusal to give the security and pay the costs of the prosecution, that he be committed to the county jail, there to remain until he should comjjly with the order of the court therein made. To reverse this judgment of the court the defendant below sued out a writ of error, and assigns for error : That the court erred in ordering that the said John Holmes be com- mitted to the jail of the county in default of his paying the costs and giving security for the performance of the order of the court. The statute under which this proceeding was instituted provides, that in case the reputed father shall fail or neglect to give the security required by the court, and pay the 502 SUPREME COURT CASES, Holmes v. The State. costs of prosecution, he shall be committed to the jail of the proper county, there to remain until he shall comply Avith the order of the court, or until such court shall, on sufficient cause shown, direct him to be discharged. Rev. Stat., p. 200, § 5. By the constitution adopted since the act passed to pro- vide for the support of illegitimate children, it is provided, that " no person shall be imprisoned for any debt in any civil action on mense, or final process, unless in case of fraud, and no person shall be imprisoned for a militia fine in time of peace." Art. 2, § 9. As this article in the constitution abolishes imprisonment for debt in all civil actions, (except in cases of fraud,) it becomes important to ascertain and determine whether a prosecution under the bastardy act is a civil or criminal proceeding. In many respects the forms used in the suit are very much assimi- lated to those adopted in criminal cases. Complaint against the putative father is made before a justice of the peace, a warrant is the process used, running in the name of the state, by which the accused is arrested and brought before the magistrate, and in case it appears that he is the father of the child, and if he does not pay the complainant such sum as she may agree to receive, &c., he is required to enter into recognizance for his appearance at the next term of the district court. Thus the way and manner pointed out by the statute for the complainant to bring her suit for the support of the child, resembles in many respects proceedings in criminal cases. Still the charge of bastardy against the defendant in itself is in no sense of a criminal nature. The defendant has not violated any criminal or penal statute, nor was the connection which produced the illegitimate offspring forbidden by law. He could not have been indicted, nor in any. man- ner convicted or punished as a public offender. The statute has provided for the punishment for rape, fornica- tion, and adultery, but neither of these need be resorted to for the purpose of begetting a bastard child, and not €ven seduction, as the right of action is complete when the IOWA CITY, JUNE, 1850. 503 Holmes v. The State. intercourse is by mutual consent of the parties, and a child the result of such immorality. A natural as well as a civil liability attaches to the father to support his own offspring, however much the mother may have been the cause of inducing the act which brings into the world a bastard child. The complaint and proceedings are of a summary nature to secure to the woman (who is in such cases favored by the law) a speedy remedy for the support of her infant child. She is permitted to use the name of the state to have comjjulsory process, and thus she can obtain a judg- ment without that delay attending civil suits in the usual form. In this way she is saved much trouble and incon- venience. Immediate means can be obtained for the sujd- port of the child, and the door of escape to some extent closed upon the defendant, whereby he is prevented from avoiding those legal and moral obligations which men under such circumstances are very reluctant to observe. For the purpose of affording a prompt remedy this statute was passed. But while the statute gives the right to a speedy action, and the woman is permitted to bring to her assistance the forms of criminal law, still the suit thus allowed to be instituted is a civil suit, to inure to the benefit of herself and child. The mother may dismiss the prosecution, settle the matter, and release the defendant if she chooses, or if judg- ment is obtained, receipt it in full, and the state cannot interfere or prevent it. The object and purposes of the complaint are to obtain from the putative father an amount sufficient to maintain the child, and not to punish him criminally for the carnal intercourse. The judgment of the court ordering the accused into confinement until he should comply with its conditions is not the infliction of punishment for a criminal offence, or for anything which he has done, but rather as a punish- ment for not complying with the requirements of the law, and the judgment of the court. With the excejjtion of the decisions of two states with 504 SUPREME COURT CASES. Holmes v. The State. peculiar statutes in relation to bastardy, we cannot find a case where proceedings in bastardy are decided to be strictly criminal proceedings. In Pennsylvania the pro- secution is by indictment. Commonwealth v. Pintard, 1 Browne, 69. In Massachusetts and Vermont the prosecution is held to partake of the nature of both a civil and criminal suit. Hill V. Wells, 6 Pick., 104 ; Rubie v. McNiece, 7 ib., 419. But in many of the states with statutes similar to our own, where the defendant is arrested, pleads not guilty, is bound over to court, and can be committed to jail in failing to comply with the orders of the court, a suit in bastardy has been held a civil suit. Harman v. Taylor, 2 Conn., 357; Sckaler v. Commonwealth, 6 Litt., 89; Martson v. Jennings, 1 N. H., 156; Monroe v. Dyer, 2 Greenl., 165; Seintland v. The Commonwealth, 6 J. T. Marshall, 585; Walker v. The State, 6 Black., 1. In the case in 11 N. H. , with a statute much like ours, the cornet say : " It is evident, we think, from these con- siderations, that the object of the statute is not to impose a punishment for an olFence, but to redress a civil injury. For the purpose of affording this redress, the legislature (as they may in all cases of civil injury) have deemed it expedient to authorize the employment of process usually applicable to criminal proceedings alone. But the process is merely the form by which the redress is sought. The purpose to be obtained is an indemnity. As soon as this indemnity is furnished, the object of the law is satisfied, without affixing 2iXij stigma upon the character of the respondent as in criminal convictions, and in other states it is regarded as a civil remedy. The court further say that complaints under the act are substantial civil suits, although some of their forms are adopted from the criminal code." The said doctrine is contained in the authorities above cited. We think it clear from the authorities, as well as from the nature and object of the action, that the suit brought in this case was a civil suit, and that the defeudant under IOWA CITY, JUNE, 1850. 505 Brown v. Harris. the constitution was exempt from imprisonment. Tha'' portion of the judgment of the district court ordering th defendant John Holmes to be imprisoned, is reversed at the costs of the defendant in error, and the remaining portion of the judgment is affirmed. S. Whicker, for plaintiff in error. W. G. Woocbvard. for defendant. ■ » •*• < BROWN et al, v. HARRIS. An attachment is vacated by a judgment of nonsuit against the plaintiff. Where a nonsuit is set aside, and a new trial granted, the attachment lien vacated by the nonsuit is not revived. - « Error to Linn District Court. Opinion by Greene, J. This was an action of trespass commenced before a justice of the peace, hj William M. Harris against Horace N. Brown, William K Lewis, and William Wallace, for taking a quantity of corn which had been levied upon by said Harris as constable, under a writ of attachment sued out by A. Hollenbeck against Wilbert L. Lewis. Judgment rendered against Brown and Lewis, and an appeal taken by them to the district court. On the trial, Harris claimed the right to recover in the capacity of constable, and offered in evidence tne writ of attachment issued in the case of Hollenbeck v. Lewis. The return upon the writ showed that he liad attached the undivided half of twenty acres of corn. The entries in the docket of the justice before whom the attachment suit was tried were admitted in evidence. Among other things, the docket shows, that on the return day of the writ, October 3, 1846, the plaintiff appeared, but the defendants not Vol. II. 33 506 SUPREME COURT CASES, Brown v. Harris. having been served v^itli process, it was ordered that the cause be set for trial November 2, 1846, at 10 o'clock a.m., and that the plaintiff give notice as required by law. On that day the parties failed to appear, and there being no proof of the requu-ed notice, the plaintiff was nonsuited. November 7, 1846, plaintiff filed an afRda^-it, and a motion to set aside the judgment of nonsuit, which motion was granted, and a new trial ordered to be heard on the 23d of said month ; and Lewis was served with notice of the new trial. On the day appointed for trial, the defendant failed to appear, and thereupon judgment was rendered against him for the sum of $36.25. After the said docket of the attachment suit was intro- duced, the defendant requested the court to instruct the jury, that the judgment of nonsuit in said attachment case destroyed the attachment lien although the nonsuit was subsequently set aside. But the instruction was refused, and this refusal constitutes the principal ground of error contended for in this case. The only question, then, to be determined is. Will a nonsuit of proceedings commenced by attachment vacate the lien ? The statute authorizes justices to render judgment of nonsuit when plaintiffs fail to appear in the manner pro- vided, and to set aside such judgments, where good cause is shown, within six days after the rendition. Rev. Stat., 323, §§ 1-4. In deciding the present question, it is not necessary to inquire into the regularity of the proceedmgs by which the nonsuit in the attachment case was set aside. We are only called upon to decide whether the instruction asked and refused should not have been given to the jury. Ordinarily a nonsuit is regarded as the final determin- ation of the action, and of all process connected with its commencement and progress. As a consequence, then, any attachment levy would be vacated by such a judgment. It is true, under our statute, a judgment of nonsuit may be set aside and a new trial granted. But in wliat way can this revive the attachment lien, which was destroyed by IOWA CITY, JUNE, 1850. 507 Brown v. Harris. the nonsuit ? The new trial ordered extends only to the cause of action and revives the issue between the parties, but it imparts no vitality to a levy which had been vacated by the nonsuit. It does not even revive the original writ ; a new process is required, which is to be served, executed and returned in like manner as a summons. Rev. Stat., 324, § 4. The attachment act provides, that when an attachment shall be dissolved, all proceedings touching the property and effects attached shall be vacated, and the suit proceed as if it had been commenced by summons only. Rev. Stat., 342, § 13. As the nonsuit did in effect dissolve the attachment, it necessarily follows that the property was released from the writ ; and after the suit was opened up, it could only be conducted as if commenced by summons. It has been decided in other states, that judgment for the defendant, ipso/acto, dissolves an attachment, and that the officer cannot detain the property though the plaintiff sues out a wTit of review. Clap v. Bell, 4 Mass., 99; Johnson v. Edson, 2 Aik., 299; Smjdam v. Iluggeford, 23 Pick., 465. Applying the principle of those decisions to the case at bar, we think it must follow that a judg- ment of nonsuit against an attachment plaintiff will, ip)so facto, destroy his lien, although the nonsuit may have been set aside, and the court below should have instructed the jury to that effect. Judgment reversed. S, Whicker and P. Smith, for plaintiffs in enxn; /. M, Preston and (7. BateSy for defendant. I 608 SUPREME COURT CASES, Greene & Brothers v. Ely. GREENE & BROTHERS v. ELY.* The statute in relation to mechanics' liens should be strictly pursued. A petition describing the prop'.-rty and stating the nature of the indebted- ness is not sufficient; it should be accompanied with a bill of particulars of the materials or labor furnished. The acceptance of a note is not a relinquishment of a mechanics' lien, unless it appears to have been intended as a waiver of the lieu. Ekror to Linn District Court. Opinion hy Kinney, J. Greene & Brothers filed their petition for a mechanics' lien under the statute, setting forth that Alexander L. Ely in his lifetime was seized in fee simple of a certain tract or lot of land situate in the town of Cedar Rapids in said county, and known as lots 4 and 6, in fractional block 3 ; and that said Ely in his lifetime did contract, on the 16th day of February, 1848, with petitioners for a large amount of materials, work and labor, which was done, delivered and performed by peti- tioners for said Ely, for the purpose of erecting a flouring mill on the lots of land aforesaid, and that in pursuance of said contract, said materials, work and labor were furnished for the said Ely, for the erection of said mill. The petition further states, that said Ely in his lifetime accounted to and with the petitioners for the work, labor and materials furnished as aforesaid, for the erection of said flouring mill, and upon such accounting there was found to be due petitioners the sum of $1327.94, and that the said Alexander L. Ely, on the IGth day of- February, 1848, executed and delivered to petitioners his certain pro- missory note for the above sum, as a balance due them for the labor and materials as aforesaid, which said note was due one day from the date thereof, and a copy of the same filed and made part of the petition. The petition contains the usual prayer for the adminis- • Greene, J., took no part in deciding this case and that of Mix v. Ely. IOWA CITY, JUNE, 1850. 509 Greene & Brothers v. Ely. trator to be a party, &c., and a prayer for judgment and a meclianics' lien on the lots of land and flouring mill erected thereon, and for all the benefits of an cot entitled, " An act relative to mechanics' liens and other purposes," approved 13th February, 1843. The copy of the note, as set out in the petition, reads as follows : <' $1327.94. " One day after date, I promise to pay Greene & Brothers or order, the sum of one thousand three hundred and twenty-seven dollars and ninety-four cents, with interest at the rate of ten per cent., for value received; it being the balance due said Greene & Brothers on settlement for material, and for paying for work on my flom-ing mill at Cedar Rapids. Alexander L. Ely. " February 16, 1848." A precipie was filed with the petition, requiring the clerk to issue a summons and indorse thereon, ^^ Action brought for Mechanics' Lien.''* A special demurrer was filed by the defendant to the petition, assigning for cause, among other things, that no person as heir or devisee of said Alexander L. Ely, and no person as his widow, and who are interested in the real estate of said deceased, is made party to said suit. The court sustained the demurrer, whereupon the petitioners asked and obtained leave to amend their petition. An amended petition was then filed, making the widow and heirs of the deceased parties, and setting forth more in detail the alleged facts connected with the furnishing of labor and materials for the erection of said mill. The defendants demurred to the amended petition, and assigned for special cause of demurrer : 1. That no contract was set forth within the meaning of the statute. 2. It is not alleged that said work and labor and materials were furnished by virtue of any contract within the true intent and meaning of the statute. 510 SUPREME COURT CASES, Greene & Brothers v. Ely. 3. No bill of particulars of work, labor and material is given. 4. That the note, of which a copy is filed, and upon which the petition is based, is not sufficient to sustain the same. 5. Said petition does not show what, and what amount of work, labor and materials, respectively or collectively, was contracted for. 6. That a promissory note was taken in payment. This demurrer was sustained by the court, and the said petition in law deemed insufficient to enable the peti- tioners to recover thereon. This decision of the court we think correct. The third specification of demurrer is well assigned. The statute in relation to mechanics' liens being in derogation of the common law, should be strictly complied with. Unless those entitled to the lien created by the statute come within its provisions, they cannot obtain the aid for which it was enacted. The lien is purely statutory, and the manner of enforcing it clearly defined, and while such a statute should receive a construction so as to make it effective, and accomplish the object the legislature had in view, still an essential departure from its plain and obvious requirements will be fatal to those who attempt to enforce it. Rev. Stat., 381, § 2, among other things provides, that if an action to enforce a lien shall be commenced in the district court, it shall be by bill or petition, describing with common certainty the tract of land, town lot, build- ing, mill or machinery upon which raid lien is intended to be made to operate, and also the nature of the contract or indebtedness, nith a bill of particulars of his account. It is not sufficient to file a petition describing the property and nature of the indebtedness, but a bill of particulars, with specific items of materials or labor furnished, or both as the case may be, must accompany the petition. This being required, a compliance is as necessary before the petitioner is entitled to his lien, as the observance of any other provision pointed out by the statute. But it was said in the argument that a copy oi the note I IOWA CITY, JUNE, 1850. 511 Greene & Brothers v. Ely. riled with the petition was a sufficient bill of particulars. For the mere purpose of collecting a debt, a note given in settlement of items of indebtedness obviates the neces- sity of any bill of particulars. The items have become merged in the note, and the payor, by executing the note, acknowledges the correctness of all the charges. But not- withstanding this, a note is not a bill of particulars, neither can it take the place of it, when the statute demands the bill to be filed. Judgment could be obtained upon the note without the bill of particulars, but when the peti- tioner asks to have certain property held by virtue of a special lien provided by statute, it then becomes import- ant for the defendant to know the items uj)on which he predicates his lien, and for the court, before they can allow the lien, to ascertain whether the indebtedness foi which the lien is sought is made up of such items, and accrued upon such contract, as will justify the court under the statute in granting the lien. But we deem it unnecessary to show further the utility of a bill of particulars in all cases of petitions under the act. The statute in express terms requires it, and it is the duty of com'ts to declare and enforce the law as it exists. But it was further said in the argument, that the note itself sufiiciently designates the character of the indebt- edness to enable the plaintiffs to obtain a lien. We do not think so. Upon the other hand, the note to some extent is evidence against the i)etitioners, and proves that they are not entitled to a lien for a portion of the amount for which it was given. Section 1 of the Rev. Stat., p. 380, provides, that in all cases hereafter, when any con- tract sliall be made between the owner of any tract of land or town lot, or the lessee of any tract of land or town lot, with the owner's knowledge or consent on the one part, and any person on the other part, for the erecting or repairing any house or other building, mill or machinery, or tlieh appurtenances, or iox furnishing labor or materials for the purposes aforesaid, and every person who may have fur- nished materials which may have been used in the construe- 612 SUPREME COURT CASES, Greene & Brothers v. Ely. tion of sucli house, building or mill by agreement, the per- sons who shall, in pursuance of such contract, have furnished labor or materials for such purposes, shall have a lien, &c. The statute gives the right to the lien to the following persons : 1. Those who shall enter into a contract with the owner of anj'- tract of land or town lot, to erect or repair any house, building or machinery ; 2. Those who contract for a like purpose with the lessee of any tract of land or town lot, with the owner's knowledge or consent ; 3. Those who furnish labor or materials for the purpose of erecting or repairing such buildings, mill or machinery, fee. ; and 4. Those who may have furnished materials which may have been used in the construction of such buildings, &c. These are the only persons provided for, and an individual is only entitled to the benefits of the statute by exhibiting an indebtedness which falls within some of the above provisions. The note relied upon in this case is given for a balance due said Greene & Brothers on settlement for materials, and for paying for work on the flouring mill. The statute does not extend to those who pay for work or materials, but to such as furnish them. In the former case the credit is given to the man, in the latter the creditor looks to the building. As the nature of the indebtedness provided for by statute is clearly defined, it follows that a lien can only be acquired npon such indebtedness as is therein specified, and as there is no provision for a lien in favor of those who pay for labor, that portion of the note proves upon its face that the peti- tioners were not entitled to the benefit of the statute to the extent of their demand. It was argued at some length on the trial of this cause, that the petitioners were barred from asserting a lien in consequence of having received a promissory note on settle- ment. We do not think so. In case of Goble v. Gale, 7 Blackf., 218, it was held, that a mechanics' lien for work done was not waived by taking his employer's note for the money due for the work, and in giving a receipt in full for such money, the note not being paid, and that in ab- IOWA CITY, JUXE, 1850. 513 Mix V. Elj-, gence of proof to sliow that the taking of the note was intended as a waiver of the lien, the lien would still hold good. Although we are aware that a different doctrine is to be found in the decisions upon this subject, yet we believe this to be correct, and fully sustained by sound reason. Why should not a mechanic be as much entitled to his lien after taking a note, as a vendor after receiving an obligation for the purchase money ? If the note does not extinguish the lien in the latter case, by parity of reasoning it ought not in the former. This we deemed it necessary to say on this last pro- position in support of the right to recover, but as the petitioners did not comply with the statute by filing a bill of particulars, and as the note on which they pre- dicated their right to a lien was evidence against them to defeat such lien to the amount claimed, the demurrer was correctly sustained and the judgment of the court is there- fore aflSrmed. Judgment affirmed. Hempstead f Burt, and /. M, Preston, for plaintiffs in error. W, G, Woocbvard and Wm. Smyth, for defendant. > • * • « MIX V. ELY. A petition for a mechanics' lien set forth that payment was to be made as the work progressed, and at the completion, if any balance was due the plaintiff, it should be paid as might then be agreed ; held that this was a Bufficient statement of the time of payment by virtue of the contract. Where a bill of particulars is as definite as the nature of the transaction will permit, it is sufficient. A right to a mechanics' lien is not affected by accepting a note. 514 SUPREME COURT CASES, Mix V. Ely. Where a note became due May 1, 1848, and the summons in a proceeding for a mechanics' lien was served March 27, 1849, it was held that the action was commenced within the time required by statute, i.e., within one year from the time payment should have been made. In a proceeding for a mechanics* lien, the administrator of defendant's estate may properly be made a party, and if plaintiff takes a judgment without making the heira a party, he does it at his peril. Error to Linn District Court. Opinion ly Kinney, J. The plaintiff in error filed his j)etition for the benefit of a mechanics' lien. The peti- tion was demurred to and the demurrer sustained. An amended petition was filed, setting forth that on the 1st day of January, 1845, Alexander L. Ely, since deceased, was the occupant and owner of lots 4 and 5 in block 3 in the town of Cedar Rapids in Linn county. That at that time said Ely entered upon the building of a flouring mill on said lots, and that petitioner being a practical mill- wright, a contract was made between him and said Ely, whereby it was agreed, among other things, that said peti- tioner should superintend the building and construction of said mill, and should furnish hands to work on the same, for such reasonable wages as niiglit thereafter be agreed upon. That said Ely was to pay petitioner from time to time as the work progressed, and to settle with petitioner for any balance which might be due him when the work was completed, and to pay the same as should then be agreed upon. That petitioner, in pursuance of the agreement, entered upon the performance of said contract on his part, and gave his own services in superintending the job, and furnished hands to do the work in building said mill. "^ The petitioner further states that he has no written copy or memorandum of said contract, and that none was made, and that he lias not the account of tlie work and labor performed, and furnished in building said mill, and cannot set forth the same item for item, but that 8 memorandum of the substance of said contract will IOWA CITY, JUNE, 1850. 515 Mix V. Ely. "be found in the books of said Alexander L. Ely, and in the hands of the defendant, and charges that on the said hooks will be found the full particulars of all his accounts. Petitioner further states that by said books a settlement up to the close of the year 1846 was made in May, 1847, and the situation of the accounts up to that time entered thereon ; and that on the completion of said mill, to wit, on the 23d day of December, 1847, petitioner and said Ely had a final settlement of all the work furnished by said petitioner, and that for such work in erecting said mill there was found a balance due petitioner of $373.5, all of which petitioner charges to be correct, and calls upon defendant to produce said books for more full and particular information. Petitioner further states, that upon such final settlement said Ely gave to petitioner his promissory note for the amount so found due him, which said note was given for the work aforesaid in erecting said mill, a copy of which is set out in the petition, and was as follows : " For value received I promise to pay R. C. Mix or bearer three hundred and seventy- three dollars and five cents, on the first day of May next with interest. " December 23, lbi47. Alexander L. Ely." Petitioner charges that this amount is now due and unpaid, and prays that the same may be adjudged a lien on the aforesaid premises, and for special execution to sell the same, that the said John F. Ely, administrator of tlie estate of said Alexander L. Ely, may be made party defendant, &c., and for general relief. Accompanying the petition was a bill of particulars which petitioner alleges is as perfect as he can make it witliout reference to the books of said Ely. This bill of particulars specifies the work done by petitioner, and furnished by him, the date, and amount due after deduct- ing out the credits. The petition was demurred to by the defendant for the following special causes : 516 SUPREME COURT CASES, Mix V. Ely. 1. That no contract was set fortli within the intent of the statute. 2. That the time of payment by virtue of the contract was not stated. 3. That no sufficient bill of particulars was set forth. 4. That the plaintiff took and accepted the defendant's promissory note for the balance claimed according to the petition, and therein gave time for payment. 5. The action was not commenced within one year after payment was to be made -by virtue of the contract. 6. The proper parties to the bill are not made. This demurrer was sustained by the court, and the petition deemed insufficient in law to enable the plaintiff to maintain his lien. We think the court erred in sustaining the demurrer. The contract is sufficiently stated in the petition, and the time of paj^ment as well specified as could have been done according to the terms of the agreement. Payment was to have been made as the work progressed, and at the completion of the mill, if any balance was due the plaintiff, the same was to be paid as should then be agreed on. This disposes of the first and second causes of demurrer. In relation to the third, we have already decided, in the case of Greene ^^ Brothers v. Ely* tried at the present term of the court, that a bill of particulars was neces- sary. But in this case, there is a bill of particulars, which, although not as full as it ought to be in ordinary causes of this nature, yet it appears from the statements of the petitioner to be as specific as was possible for him to make. It seems that from the confidence he reposed in the in- tegrity of Mr Ely, he had entrusted the keeping of his accounts entirely to him. His books contained all the items, from them the settlements had been made, and they were in the possession of the administrator, inaccessible to the plaintiff. The defendant is in possession of all the informa- tion upon the subject of the indebtedness, and he is called upon to produce the books in court which exhibit all the * Ante. 508. IOWA CITY, JUNE, 1850. 517 Mix V. Ely. facts. If it were possible to dispense with the filing of a bill of particulars, this case would present a seeming pro- priety in doing so. But as the statute is inflexible upon this subject, the rule cannot be relaxed. However, the plaintiff has saved his case in this respect, by filing a bill of particulars, and has furnished a forcible reason for not making it more definite and pointed. The fourth cause of demurrer is answered in the case above referred to. The settlement of a demand by note, which in its nature entitled the creditor to the lien pro- vided by statute, will neither bar nor affect the lien, unless there is evidence to show that the right to the lien was waived by accepting the note. Upon examination it is found that the fifth cause of de- murrer is not sustained by the facts. The note was given on the 2d of December, 1847, and was due on the 1st of May, 1848. The summons was served on the 27th March, 1849. The second section of the act, p. 318, provides, that *' when any person shall wish to avail himself of the bene- fits of such lien, he shall commence his action in any court having jurisdiction of the same, within one year from the time payment should have been made by vii-tue of such contract, by which such lien shall be claimed." The payment of the note on the contract which created the lien should have been made on the 1st day of May, 1848. It was only necessary, then, to commence the suit within one year from that time. By the terms of the con- tract, as set forth in the petition, (and which are admitted to be correct by the demurrer,) the amount due the plain- tiff on the completion of the work was to be paid at such time as sliould then be agreed upon. The parties agreed upon the 1st of May for such payment. According to the state of the pleadings, this is the same as if the parties had agreed in the original contract upon that time as the time for the final payment ; and hence, in computing the time for the commencement of the action, it should be reckoned from the day of the maturity of the note, and not from the day when the work was completed. But we 518 SUPREME COURT CASES, Durham v. Daniels. are not prepared to say that such would be the rule, if time for payment in the original contract was not stipu- lated by the parties. But it is said that " the proper parties are not made to the bill." Whether the demurrant means by this specifi- cation party plaintiffs or party defendants, the demurrer does not advise us. It is entirely too vague and indefinite. The administrator is certainly for one a proper party, and if there are others, heirs for instance, who should have been made parties, the petitioner takes his lien and special execution at his peril. A proceeding to enforce a mechanics' lien, affecting as it does the realty, cannot bind or preclude the heirs from asserting their rights, unless they are party to such proceeding. But in this case, there is no allegation or suggestion either in the petition or demurrer that there are heirs, and the court upon special demurrer are not at liberty to presume anything which does not appear of record. The judgment of the court, therefore, upon the demurrer is reversed, and the case remanded for further proceedings not inconsistent with this opinion. ' Judgment reversed. Davis (f" Bissell, for plaintiff in error. W. G, Woodward and Wm, Smyth^ for defendant. > » » • • DUKHAM V. DANIELa Where the conrt instructed the jury in relation to the legal effect of deedi^ it cannot be considered a charge upon the facts. All acts of iucoiporatioii are made public, and as such may be given in evidence ; such an act creates tlie presumption that the corporation does exist de facto. IOWA CITY, JUNE, 1850. 519 Durham v. Daniels. Errok to Linn District Court. Opinion by Greene, J. An action of right, commenced by S. W. Durham against A. Daniels, for a tract of land adjoining the town of Marion. Pleadings in the usual form. Cause submitted to a jury. Credit for the plain- tiff with $12 damages. There having been no proof of damages, plaintiff entered a reniittiter for $11.99 of the damages assessed. Defendant filed a motion for a new trial, which was granted. At the next term of court, the cause was again sub- mitted to a jury, and a verdict returned for the defendant. Motion for a new trial overruled, and judgment rendenjd upon the verdict. Upon the trial it appeared that both parties claimed title to the land in question from Henry Oliver, who pur- chased and held the patent from the United States. The plaintiff, in support of his right, submitted a deed from Oliver to Robinson, dated February 11, 1845, one from Robinson to Scott, dated in May, 1845, and one from Scott to plaintiff, dated March 8, 1847. The defendant claimed by virtue of deeds from Oliver to a corporation known as the " Marion Lyceum." Said deeds were dated February 24, 1843, and January 5, 1844. By request of defendant, the court instructed the jury, ** That Oliver, at the date of the deed to Robinson, had no title, and consequently the plaintiff could derive no title under said deed from Robinson, and that if the jury be- lieve from the evidence that the title to the land in con- troversy is in the Marion Lyceum, the plaintiff cannot recover against the defendant, unless by virtue of some title from, through, or under said Lyceum." The objection lu-ged to the proceedings below are mainly founded upon those instructions. 1. It is m-ged that the court usurped the province of the jury, and charged them upon the facts instead of the law in the case. But we think the instructions are legiti- 520 SUPREME COURT CASES, Zerfing v. Mourer. mate. They merely explain to the jury the legal effect of those deeds. They only amount to a plain self-evident proposition in law, that after a man has conveyed away all his title to a lot of land, a subsequent deed from him can impart no right. 2. It is contended that the defendant, in attempting to show an outstanding title in the Marion Lyceum, should first prove that it did exist de facto with capacity to hold real estate. As nothing appears in the record to the con- trar}', the legal presumption must follow, that the court Lelow did not act without adequate evidence. Besides, the Marion Lyceum is a corporation, which the court could notice ex officio. It was incorporated by an act of the legislature, (Laws of 1841, p. 16,) and all acts of in- corporation are declared public, and as such may be given in evidence. Rev. Stat, 572, § 2. Other errors were assigned and urged in this court, but as they are not sustained by the record, we do not consider it necessary to notice them. Judgment affirmed. /. M, Preston^ for plaintiff in error. W, Smyth and N, W, Isbell, for defendant. I ZERFING V. MOimER. In an action of trespass for debauching plaintiff's daughter, if he did not actually connive at the guilty iutercourse, evidence of loss occasioned by it will justify a recovery. Proof of careless indifference could only go in mitigation of damages. Erkor to Cedar District Court. Opi?don hy Greene, J. This was an action of trespass on the case, brought by George Mom-er for debauching hi& IOWA CITY, JUNE, 1850. 521 Zerfing v. Mourer. daughter, whereby she became pregnant and was delivered of a child. Plea, Not guilty. Verdict and judgment for the plaintiff. On the trial, defendant requested the court to instruct the jm-y, that if the plaintiff, by a careless indifference of his daughter's cliastity, whether by design or otherwise, has afforded facilities of criminal intercourse between his daughter and the defendant, he cannot recover. The com't refused to give this instruction as ashed, and instead of it, charged the jmy, that if from the testimony they believed the plaintiff had, by a careless indifference for his daugh- ter's chastity, either by design or otherwise, afforded facili- ties for criminal intercourse between her and the plain- tiff, it would be matter in mitigation of damages only, and not a bar to plaintiff's recovery. The plaintiff's loss of his daughter's service caused by the defendant's carnal intercourse with her, constitutes the gravamen of this action. If, therefore, the plaintiff did not actually connive at the guilty intercom'se, evidence of loss occasioned by it would be sufficient to justify a recov- ery. If instances of careless indifference for a daughter's chastity should be admissible to defeat a suit of this char- acter, the action could seldom be maintained. Such in- stances might be adduced in every proceeding of the kind. The fact that a parent should ever suffer his daughter to place herself in any situation where she might be seduced, could under such a rule be referred to the jury as evidence of " careless indifference." And thus the very proof of debauchery would defeat the cause of action it was in- tended to establish, by showing that through the careless- ness or indifference of a father, the daughter, at an unlucky moment, was permitted to go beyond his immediate ob- servation, when she was entrammeled by the seducer, or voluntarily injured by her paramour. Should that doctrine obtain, this action could never be maintained by the poor father, whose destitute situation requires the absence of his child from a parent's vigilance, to aid in procuring means of subsistence. Vol. II. 34 522 SUPEEME COURT CASES. Fulwider.y, Peterkin. We are therefore of opinion, tliat tlie instruction asked was correctly refused, and that the court properly charged the jury, that proof of such careless indiiference should only go in mitigation of damages. Judgment affirmed. S. WMcher and S. A. Bissell, for plaintiff in error. J. P. Cook, for defendant. FULWIDER V. PETERKIlSr. The statute authorizes a proceeding against an executor or administrator for a conveyance in pursuance of a contract with the deceased. In a proceeding against an estate for a specific performance, it is not neces- sary to make the heirs a party to the conveyance. In Equity. Appeal from Cedar District Court. Opinion hy Kinney, J. The bill tiled in this case shows that the appellants purchased of David Peterkin, in his lifetime, (now deceased,) on the 28th of April, 1843, the south half of section 10 in township 79, north of range 2 west, in the county of Cedar, containing three hundred and twenty acres, and that the said Freeman & Fulwider executed of that date then* joint notes to said Peterkin, payable in January, 1844, 1845 and 1846, amounting in all to the sum of $600, and took a title bond "^ for a deed for said land, to be made upon the payment of said notes. David Peterkin died without having made a deed, and before the complainants were entitled to one. Alexander Peterkin was made adminis- trator, who, on the 31st day of September, 1847, obtained a judgment on these notes for $649.12. The bill charges, that it is not in the power of the administrator to make a good and sufficient deed to complainants, as there was I IOWA CITY, JUNE, 1860. 523 Fulwiiler v. Peterkin. po provision in the contract by which the heirs were bound to make a deed in the event of death. That the consid- eration of the notes on which judgment was obtained was tlie contract for the laud, wliich complainants charge was not complied with by said David in his lifetime, and can- not now be enforced. That the said defendant having ob- tained the judgment, was about to sue out execution and collect the same. The bill prays for a cancellation of the contract, and a perpetual injunction against the defendant from the collection of said judgment. The sworn answer of the defendant admits the making of the contract for the consideration stated in the bill, the death of David Peterkin, the administration of defendant, and the recovery of the judgment. Answer alleges a readi- ness on the part of the administrator to carry out and perfect the contract so far as he has power, and prays the court to empower him to convey the land described in the contract, when payment ishall have been made ; that as complainants have not made payment, they are not en- titled to a conveyance. The names of the heirs of said David, with their residence, are disclosed in the answer, and an allegation that the complainants have been since the making of the contract, and still were, in possession of the laud ; and the answer concludes with a prayer for the dissolution of the injunction, and that the court may order and decree what shall be right and equitable in the pre- mises. Exceptions to the answer were filed, which were over- ruled by the court, and the cause was submitted and de- cided upon bill and answer, whereupon the court decreed a dissolution of the injunction, and that the respondent be at liberty to proceed in the collection of said judgment. And it was further decreed, that said judgment being first satisfied, that the respondent make and execute to the com- plainants a deed of conveyance, conveying to them in fee simple, the land described in the contract. Wc think the court decreed correctly. The statute jjrovides, that when any person who is bound 524 SUPREME COURT CASES, Fulwider v. Peterkin. by a contract in writing to convey any real estate, shall die before making the conveyance, the other party may have a bill in equity to enforce a specific performance of the contract by the heirs, devisees or executors or admin- istrators of such deceased person, and that the court shall hear and determine such case according to the course of proceedings in chancery, and shall make such decree thereon as equity and justice shall require. This statute contemplates and clearly gives the right to proceed against either executor or administrator, for a con- veyance in pursuance of the contract of the deceased. The administrator standing in the place of the deceased person, there is an obvious propriety in making him t/ie party in a proceeding to enforce the performance of a con- tract made by deceased in his lifetime, the obligations of which rest upon the administrator as his representative. But the statute has settled this matter in such explicit lan- guage, that there cannot be room for reasonable doubt. The twenty-ninth section, p. 703, provides, that " if it shall appear that the plaintiff is entitled to a conveyance, the court may authorize or require the executor or adminis- trator of the deceased party to convey the estate in like manner as the deceased person might and ought to have done if living, and if his heirs or devisees, or any of them, are within the territory [state] and competent to act, the court may require them, or either of them, instead of the executor or administrator, to convey the estate in the manner before mentioned, or may require them, or either of them, to join in such conveyance in the manner before mentioned." And the thirtieth section provides, that every conveyance made in pursuance of such decree shall be effectual to pass the estate contracted for, as fully as if when made by the contracting party himself. It is not necessary, in a proceeding under this statute for a specific performance, that the heirs should join in the conveyance in order to pass a good title. The court can decree the administrator or executor to convey without the heirs, and the conveyance made in pursuance of such IOWA CITY, JUNE, 1850. 525 Brown v. Tomlinson. decree, will be as effectual to pass an estate in fee, as if made by the party in his lifetime. True, the court may require the heirs or devisees, or either of them, if liv- ing in the state, to join in such conveyance, providing they are competent to do so; but this is entirely within the discretion of the court. In this case, as all of tlie heirs except the administrator, according to the answer, reside in England and Scotland, the court could not com- pel them to unite in the conveyance. The complainants having the right by virtue of the statute to enforce a specific performance against the ad- ministrator, and thereby obtain a decree against him, and by such decree, or a conveyance made in pursuance of it, obtain a perfect title ; the ground upon which they pray for a cancellation of the contract, and a perpetual injunc- tion against the collection of the judgment, is entirely removed. But by the decree they are not obliged to resort to their remedy for specific performance, as the court have decreed a conveyance upon payment of the judgment afore- said. In this we think complete justice has been done to the parties, and the decree is therefore affirmed. Decree affirmed. S. Whicker and S. A. Bisseli, for plaintiffs in erro7. W, G. Woodward^ for defendant. BROWN V. TOMLINSON. Where the breaches in any count in a declaration "in covenant are well assigned, a general demurrer should not be sustained. Under the statute, a special covenant at the end of a deed in which the grantor warrants against all claims from or under him, does not limit or explain the more general warranties which are covenanted by the words. "■grant, bargain and sell." A restraint by implication upon such general warranties is no antl oriziil by statute ; it must be positive and expressed. 526 SUPREME COURT CASES, Brown v. Tomlinson. Error to Cedar District Court. Opinion hy Greene, J. An action of covenant on a deed executed by John J. Tomlinson to Henry D. Brown, October 12, 1842. The deed acknowledged a consider- ation of $320, and conveys the N.E. fractional quarter of the N.E. fr. qr. of section 6, in township 80 N. of range 2 W. of the 5th meridian, containing forty and twelve- hundredth acres ; and also the N. half of the N. W. qr. of the same fr. qr. section, containing twenty acres. In the convey- ance the words " grant, bargain and sell" are used, and the further covenant " to warrant and for ever defend the title to the same premises against the claims of all and every person whatsoever, from or under him." After setting forth the contents of the deed, the declaration avers that at the time and before its delivery, one Charles M. Jen- nings was seized in fee of the twenty acre tract of land as described and set forth in the deed ; that on the 24th day of September, a.d. 1841, the said twenty acres of land were duly attached by William H. Tuthill, for debts due him from said Jennings ; and on the 18th day of May, 1842, a judgment was rendered upon said attachment in favor of said Tuthill ; that execution issued in September following, and in October of the same year, the land was duly sold to said Tuthill, to whom a sheriff's deed was executed June 7, 1844, by virtue of which he took posses- sion, and was seized in fee of said twenty acres of land ; that as said Tuthill had possession of said land, the plaintifi Brown, on the 19th of May, 1847, commenced an action of right against him, and in due course of pro- ceeding thereon, the said Tuthill obtained a judgment by which the plaintiff was expelled and for ever barred from the possession and employment of said premises. The declaration then avers, that the land from which the plaintiff was expelled by judgment is one and the same twenty acres which he had purchased of said Tomlinson, and then sets forth the failure of Tomlinson to warrant IOWA CITY, JUNE, 1850. 527 Brown v. Tomlinson. and defend tlie same, and alleges that lie had no estate of inheritance in fee simple therein, and that he had no right, power or authority to convey the same. The declaration contains three counts, in each of which two or three breaches are assigned. The defendant craved oyer of the deed, and demm'red generally to the declaration. The demurrer was sustained, and in this it is contended that the court below erred. There is much in the declaration which must be regarded as defectively pleaded ; but it cannot well be assumed that all the covenants and breaches are ill assigned. Without inquiring particularly as to the others, we think that the breaches of covenant of seizin and of authority to sell and convey are well assigned, and the same may well be assumed of the general warranty in the second count. It is a well settled rule that where the breaches in any count are well assigned in a declaration of cove- nant, a general demurrer should not be sustained. It follows, then, that if the averments in the declara- tion are warranted by the legal effects and force of the covenants contained in the deed, that the court below im- properly decided that the action could not be maintained. And this brings us to the principal question involved in the case. Does the special covenant at the end of the deed, in which the grantor warrants against all claims from or under him, limit and explain the more general and ex- tended warranties which are covenanted by the words "grant, bargain or sell?" The decision in the court below shows that this question was necessarily decided in the affirmative. Independent of the statute, and under the assumption that the words of conveyance contained only implied covenants, incompatible with that stipulated by the special warranty, the correctness of that decision could not be controverted. But our statute regulating convey- ances enters largely into the covenants of this deed. The sixth section of that act, Rev. Stat., 204, declares that the words "grant, bargain and sell," in all conveyances, shall, unless restrained by express terms, '' be 'construed to be 52S SUPREME COUHT CASES, Brown v. Tomlinson. the following express covenants : 1. That the grantor was, at the time of the execution of such conveyance, seized of an indefeasible estate in fee simple in the real estate thereby granted. 2. That such real estate was, at the time of the execution of such conveyance, free from in- cumbrance done or suffered by the grantor or any person claiming under him. 3. For further assm^ance of such real estate to be made by the grantor and his heirs to the grantee, his heirs and assigns, and may be sued uj^on in the same manner as if such covenants were expressly inserted in the conveyance." The construction to be given to this lan- guage is obvious ; there is no room for ambiguity or doubt. Those words of conveyance are to be considered as some- thing more than an implied warranty; they are to be regarded as express covenants, and are to have the same bearing before a court, the same legal construction as they would if specially set forth in the conveyance, unless re-, strained by express terms. A restraint by implication will not suffice, it must be positive, it must be expressed ; or, according to the statute, the covenants may be sued upon in the same manner as if they were expressly inserted in the conveyance. Now the question presents itself. Are not those covenants of seizin and of freedom from incum- brance, as expressed by the words of conveyance, perfectly compatible with the special warranty against the claims of all persons from or under the grantor ? Though the latter and more limited covenant may be mainly com- prised within the former, it is still perfectly reconcilable with them, and as they are in no way restrained or excluded by express words in the deed, we can come to no other conclusion than that the covenants which were expressed by virtue of the statute which enters into the conveyance should co-exist and operate with that which is especially set forth in the deed. Had the parties intended to limit or restrain the warranty to the latter covenant, such inten- tion could have been expressed by one or two words in the instrument. Those words cannot be supplied by in- tendment : nor upon a doubtful point should the construe- JOWA CITY, JUNE, 1850. 629 Brown v. Tomlinson. tion be strongest against the covenantee. In the present deed, then, we think that the grantor makes three express covenants : first, of seizure in fee ; second, against incum- brances ; and third, against his own acts. We think that these three are clearly accordant ; that the i)laintiff is en- titled to recover fur a breach of eitlier ; and that at least one of them is pleaded, and the breach sufficiently as- signed in the declaration. But it is urged that the third covenant is unnecessary, unless applied as a limit to the first and second. If un- necessary, it does not follow that it should be adjudged inconsistent with the antecedent covenants, or that they are restrained by it, when no word or term is expressed which can denote such intended limitation. In Hesse v. Stevenson, 3 Bos. & Pul., 565, where a cove- nant was regarded as unnecessary, it was not therefore considered inconsistent. So that where one covenant stipulated that the defendant had good right and absolute authority to convey, and another had not by any means forfeited any right or authority he ever had over the pro- perty in question, it was held that the former covenant was not restrained by the latter. And in Gainsforth v. Griffith, 1 Saund,, 59, it was held that the general covenant of. a good and indefeasible lease was not re- strained by one for quiet enjoyment restricted to acts of the covenantor. In this case the rule was laid down that an express general covenant in fact cannot be restrained by any subsequent covenant, if not construed as a part of the first general covenant. Smith v. Compton, 3 Bar. & Aid., 189. But it was understood that a particular cove- nant in fact may restrain a general covenant by intend- ment of law. Appl}^ this rule to the present case. There is no connection between the third and the two preced- ing covenants. They are made in very different parts of the deed without any connecting word ; and by statute the covenants contained in the words of conveyance are made express covenants in fact, as much so as if they had been expressly mentioned, and therefore, according to 530 SUPREME COURT CASES, Brown v. Tomlinson. Gainsfortk v. Griffitli^ cannot be qualified by the conclud- ing covenant. In Han-ell^. Richards, 11 East., 633, it was beld that the generality of the covenants for quiet enjoyment was not restrained by the qualified covenants for good title and right to convey for anything done by the releasor to the contrary. In Roebuck v. Duprey, 2 Ala., 535, it was held that although a deed contains express covenants, yet others not inconsistent with them may be implied and rendered operative. The same doctrine was held in Gates v. Cald- well, 7 Mass., 68. If an implied covenant may be ren- dered operative with an express covenant in the same deed, is there not even more reason for giving force to two separate express covenants where the one does not conflict with the other ? In Pennsylvania, with a statute similar to ours, and in a case where the land conveyed had been incumbered previous to the sale, it was held that the covenants con- tained in the words "grant, bargain and sell" were not inconsistent with, nor restrained by an express covenant of special warranty ; and that the covenants implied by those words could only be restrained by express terms of limitation. Funk v. Voneida, 11 Serg. & R., 109. And in Alexander v. Schneider, 10 Mis., 460, under an act identical in terms, it was held that the covenants im- plied by the words " grant, bargain and sell" in a deed of conveyance are separate and independent of each other; and that a general warranty is only limited by a special one where the two are inconsistent. In the absence of our statute, the authority and argu- ments presented by counsel for the defendant in error would have peculiar force, for at common law the rule appears to be well settled that general implied covenants are qualified and restrained by any connecting and express covenant of a more limited character, especially where the two are not reconcilable. 11 East., 633; 15 ib., 530, 8 Mass., 202 ; 7 John., 258 ; 11 ib., 122. This doctrine no IOWA CITY, JUNE, 1850. 531 Brown v. Tomlinson. doubt originated from the principle that general terms are limited by connecting specifications ; and as an applica- tion it might well be nrged that parties having entered into express agreements, it should not be supposed that they intend anything more by their general language than is stipulated in express covenants, and this would apj)ear especially reasonable if the one could not operate consis- tently with the other. But in this case the covenants are not inconsistent, although in part superfluous ; and as our prevailing law, the statute has given peculiar effect to the words " grant, bargain and sell," it cannot be abated by mere implication, nor by the authority of decisions made where no such statute was in force. These words of con- veyance create something more than implied covenants, as we have seen; they are declared to be express, the same as if specially mentioned, and in their very nature they become special as well as general covenants, {Gralz v. Ewalt, 2 Binney, 95 ;) and they are to have full effect, " unless restrained by express terms contained in such conveyance." Such is the explicit direction of the statute, and the parties must be presumed to have known the law, and to have made their covenants accordingly. And as the covenantor made them without any express limitation, to enforce one by implication would do violence to the intention of the parties, and prevent the obvious letter of the statute. We therefore conclude that the court erred in sustaining the demurrer. Judgment reversed. Wm. Smyth and L. B. Patterson^ for plaintiff in error. J", P, Cook and W, G. Woodward, for defendant. 532 SUPREME COURT CASES, Richmaa v. The State. RICHMAlSr V. THE STATE. The question was put to a witness before a grand jury, "Do j'ou know of any person, other than yourself, being engaged in gaming ai any time within two years in the county of Muscatine ?" held, that witness could not refuse to answer on the ground that it would have a tendency to im- plicate himself. A witness cannot be justified in refusing to answer questions which cannot, from their nature, tend to criminate him ; and of such a question-he can- not be tlie judge. Where, from the nature of the question, the answer would inevitably crim- inate the witness, he is sole judge, and may answer or refuse to answer the question. Error to Muscatine District Court. Opinio7i hy Kinney, J'. In tliis case, tlie plaintiif was called before the grand jury as a witness, and the follow- ing question propounded to him by the foreman : " Do you know of any person, other than yourself, being en- gaged in gaming at any time within two years in the county of Muscatine ? " Which question the said Rich- man refused to answer, alleging that to answer it would have a tendency to implicate himself. Whereupon the said Richman was ordered by the court to answer said question, and refusing to do so, was fined $10 for con- tempt, and a judgment rendered against hjm for that amount, with leave to except to the opinion of the court in requiring him to answer said question, and to the judgment rendered against him ; which facts are certified to this court by agreement for a decision. The witness should have answered this question. An affirmative or negative reply could not in any manner have criminated him. The inquiry does not embrace all the gaming within the knowledge of the witness, but onlj^ such gaming as was known to the witness in which he was not a party. If the witness had not been excepted in the interrogatory, there would have been more propriety in his refusing to answer, as he might have been a party him- self to all the games within his knowledge in the coujity IOWA CITY, JUNE, 1850. 533 Richman v. The State. of Muscatine witliin the time specified, and in sucli case an affirmative answer would have a tendency to implicate him. But clearly, as the question was put, he could not claim the benefit of the rule. The rule is, that a witness cannot be compelled to answer any question, the answer- ing of which may expose or tend to expose him to a criminal charge, or to anj^kind of punishment. 2 Phillips on Ev., 417. But it has been, and still is, to some extent, a controverted question, whether the witness or the court is to be the judge as to whether the answer will criminate the witness or not. In the authority above referred to, it is said, that "it is the province of the court to decide whether a proposed question has a tendency to criminate the witness, and it is the duty of the court, while it pro- tects the witness in the due exercise of his privilege, to take care that he does not, under the pretence of defending himself, screen others from justice, or withhold evidence wdiich he might safely give. The court should be satisfied that the witness is acting an honest part, and that he may incur danger by answering; when satisfied of this, it will allow the privilege. To force him to reveal particulars might lead to a prosecution against which he has a right to protect himself." In conformity with this doctrine was the general rule, as laid down in the celebrated case of United States v. Burr, 1 Rob., 215, in which the court held that it was " the province of the court to judge whether any direct answer to the question proposed will furnish evi- dence against the witness." But the chief justice qualifies the general rule by saying, that if the answer may disclose a fact which forms a necessary and essential link in the chain of testimony whicli would be sufficient to convict the witness of any crime, he is not bound to answer it. " In such case, the witness must himself judge what his answer will be, and if he say on oath that he cannot answer without accusing himself, he cannot be compelled to answer." We understand from this and other decisions on this subject, that in relation to the privilege of witnesses it is 534 SUPREME COURT CASES, Richman v. The State. necessary to avoid these two extremes: 1. That of per- mitting the witness to protect himself by his privilege by refusing to answer questions which cannot, from the nature of the answers sought, criminate him ; 2. That of compelling him to answer, when, from the nature of the questions, the answer would inevitably criminate him. In the first, the court must be judge and compel the answer. In the second, the witness is sole judge, and may answer or refuse as he sees proper. When it is evident to the mind of the court that the answer cannot accuse the witness, the court should require him to respond to the interrogatory. If this were not 'Ca.Q, case, it would be in the power of the witness, when called upon to give testimony in a criminal case, to refuse to do so. If he is to be sole judge whether the answer would implicate him by thus answering, it would be impossible to elicit any testimony. Perjury could not only be com- mitted with impunity, by stating that the answer would criminate him, but the guilty would be screened from merited punishment. We cannot sanction a rule fraught with such dangerous consequences. The dh'ect tendency of such a rule would be to suppress truth, and prevent the administration of justice. Therefore, we think the better and safer rule to be that of compelling the witness to answer, when it is apparent to the court that such answer would not interfere with his legal privilege. In this case it was evident, from the scope of the question, that an an- swer could not possibly infringe upon this right, and yet the witness makes himself the judge, and refuses the answer. The position of the witness furnishes a familiar illustra- tion of the evil consequences which would result from the enforcement of such a rule as he has contended for in the argument, and a most potent reason for the distinction which we have made. Judgment affirmed. J. Scott Richman^ pro se. D. C. CloucL for the state. IOWA CITY, JUNE, 1850. 635 Abbee v. Hig.srins. ABBEE V. HIGGINS. A motion supported by affidavit is no part of the record unless made so by bill of exceptions. Where it appears by the returns of the sheriff that a writ was served in the manner provided by statute, it is good, even if it should appear that the defendant had been three months absent from his dwelling. Ereor to Linn District Court. Opinion hy GtREENE, J. Higgins sued AbLee in an action of assumpsit on a promissory note. It appears by the sberiif's returns that the defendant could not be found in the county; but that he left an attested copy of the writ *' at the dwelling house or last place of residence of said defendant, in said county, with Mary Abbee, the wife of said defendant, she being a person of the said defendant's family, upwards of fifteen years of age, and stated the contents thereof to said person." The defendant appeared specially by attorney, and filed a motion to dismiss the writ for the want of service, averring in the motion that Abbee is not a resident of the county, nor of the lioiise described in the return ; that he had been absent three months at least on an expedition to California, where he expected to remain two or three years. This motion was supported by the affidavit of defendant's attorney, and over- ruled by the court. The cause then came on for trial ; the defendant failed to appear, and judgment was rendered against him by default for the balance due upon the note. It is now objected that the court below had no jurisdic- tion over the person of the defendant to justify the judg- ment. The record in the case shows no foundation for this objection. The motion made by defendant's counsel is no part of the record. It is not made so by bill of ex- ceptions or otherM'ise. The mere act of filing a motion in a case is not sufficient to make it a part of the record. It was held by Cook v. Steuben Co. Bank, 1 G. Greene, 536 SUPREME COURT CASES, Preston v. Daniels. 447, that a motion is no part of the record unless made so by bill of exceptions. In this case, after securing the action of the court upon his motion, the attorney withdrew without taking any exception to the decision, thus creating the presumption that he acquiesced in the decision, and having no further defence to the action, he suffered judgment to go by default. But even if the motion was properly before us, we should not be able to disturb the judgment. The return of the sheriff shows that the writ was properly served by leaving an attested copy at the dwelling house or last place of residence, and with tlie wife of defendant, stating the contents to her. The facts stated in this return are not controverted by the motion. If the defendant had been absent three months, if he had started to California with the intention of remaining there two or three years, but still had left his family, his home, and his property in the county, it would not show an abandonment of his resi- dence, nor affect the service of a writ, when it appears to have been made in the manner provided by statute. • Judgment affii-med. N. W. Isbell, for plaintiff in error, WvL Smyth, for defendant. PRESTON et al. v. DANIELS et al. If it appears by a bill in equity that complainants had a plain and adeqnat» remedy at law, it is good ground for demurrer. Where funds collected by a sheriff on fi. fa. were demanded by D. and N., and also by P. and H., and each party showed an equal right to them, it was held D. and N. iiad not a plain and adequate remedy at law, and that they might proceed in equity. Where, from any defect in the common law, want of foresight in the parties. IOWA CITY, JUNE, 1850. 537 Preston v. Daniels. or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to interfere and supply the defect or furnish the remedy. The supreme court is not authorized to grant a lien upon a judgment for an attorney's fees, as it would he an exercise of original jurisdiction. In Equity. Appeal from Linn District Court. Opinion by Greene, J. A. Daniels and C. Nye tiled their bill, in which the following facts are stated : March 18, 184G, E. T. Lewis obtained judgment against Levi Lewis, in the district coui't of Linn county, for the sum of |143.39 cents, and on the 23d of the same month, assigned $52 of the judgment to Preston & Hastings. July 21, 1846, E. T. Lewis assigned the balance of the judgment to the complainants, who filed the assio-n- ment in the clerk's office. In April of that year, Levi Lewis took the judgment by -writ of error to the supreme court, where, in July, 1847, it was affirmed. Shortly after, a writ of fi. fa. was issued from the supreme court to the sheriff of Linn county, who collected the money, paid $56.82 over to Preston & Hastings, and retained the balance in his hands. This balance of $100.19 was demanded of the sheriff by complainants under the assignment which had been made to them, but the sheriff refused to pay the same over to them on the pretence that Preston & Hastings had a lien of $90 on the amount, for their fees as attorney for E. T. Lewis. Complainants charge that the $52 assigned by Lewis to Preston & Hastings was the only lien they had acquired for their professional services ; that the $90 were neither claimed nor acquired until after judgment in the supreme court ; that Preston & Hastings had notice of the assign- ment to them ; and the claim of $90 was intended to de- feat and defraud them ; that E. T. Lewis was insolvent, and that they had no remedy at law. The bill concludes with a prayer, that the pretended lien be adjudged inopera- tive, and that a writ of injunction may issue to restrain the Vol. IL " ':.:> 538 SUPREME COURT CASES, Preston v. Daniels. sheriff from paying tlie money over to any other person than themselves. E. T. Lewis, I. M. Preston, S. C. Hast- ings and A. Harlan, the sheriff, were made defendants. Preston & Hastings demurred to the bill on the ground: 1. That E. T. Lewis should be a plaintiff, if a party at all to the bill ; 2. That the complainants had an adequate remedy at law. Thereupon, Lewis filed a dis- claimer of all interest. The demurrer was overruled, and the bill dismissed as to Lewis. Preston & Hastings' answer admits the judgment, as- signments, &c. ; that the $52 assigned to them was for professional services ; that the $90 claim was partly for other services than those rendered in the suit against Levi Lewis ; but claims that the $90 was a lien allowed by the supreme court ; that their claim for fees was in accordance to an agreement between them and E. T. Lewis, at the time he placed his claim against Levi Lewis in their hands for collection ; that at the time Preston received notice of the assignment to complainants, he gave them notice of his and Hastings' claim for additional fees, upon the judg- ment ; and insists that said assignment was not in good faith, and that if any consideration passed, it was for a pre-existing debt, which was not cancelled by the assign- ment. Exceptions were taken to the separate answer of I. M. Preston, and thereupon he filed an amended answer, in which he states that the services for which $90 are claimed were rendered in suits prior to April 1, 1847. Upon the bill and answers the court decreed that the sup- posed lien of Preston & Hastings be inoperative as against the assignment to the complainants, and that the sheriff should pay the money over to them. 1. It is objected, that the demurrer to the bill should have been sustained, on the ground that complainants had a plain and adequate remed}'' at law. If complainants had an adequate remedy at law, it is clear that the de- murrer should have been sustained, and the bill dismissed. But we think that the fiicts stated in the bill show no Bucli legal remedy. Tlie money was in the hands of the IOWA CITY, JUNE, 1850. 539 Preston v. Daniels. sheriff, and demanded from him by two different parties, both of whom showed prima facie an equal right to it ; and therefore the sheriff was justified in not paying the money over to either of them. The sheriff was not in de- fault. He was not required by the process upon which he had collected the money, to pay it over to complainants ; nor does it a23pear that the time had expired within which he was required by law to make return of the ji. fa. to the supreme court. As the sheriff had not neglected his duty in the premises, the complainants had no action at law against him ; and as Preston & Hastings had not ob- tained possession of the funds claimed by complainants, they had no remedy against them. Counsel have failed to point out the plain and adequate remedy at law which complainants had for this money. We are told that they might have had their remedy at law against Preston & Hastings, if the sheriff had paid the money over to them. If this proposition was correct, it could not add force to the demurrer in the present case. It by no means follows that they had a plain and adequate remedy at law, because they might have had such a remedy if certain things had taken place. As the contingency did not happen, it follows tliat complainants did not acquire the remedy which it is claimed they had. It was not necessary for them to lay by and lose the use of their money, upon the supposition that some event might happen which might enable them to proceed by suits at law. A court of chancery will not requii'e a party to defer his rights to the supposition that a contingency may liapjien which will give him a remedy at law. The rule is laid down by Chancellor Walworth, and is doubt- less approved by all equity tribunals, that where, from any defect of the common law, want of foresight in the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to in- terfere and supply the defect or furnish the remedy. Quick v. Stwjvesant^ 2 Paige, 84. The bill in the case at bar comes with obvious propriety under this rule. 540 SUPREME COURT CASES, Preston v. Daniels. Again, it was held in Winthrop v. Lane, 3 Desau., 323, that the general powers of a court of equity are very great ; that it is assistant to the courts of law in counteracting fraudulent judgments, or when in conscience and equity the plaintiff ought not to avail himself of a judgment at law. And in Watson v. Palmer, 5 Ark., 501, it was held that equity will relieve from a judgment at law, when the party was prevented by unavoidable necessity from ap- pearing or making his defence. The lien allowed to Pres- ton & Hastings by the supreme court, in the present case, was upon their ex parte apj)lication, without notice to the complainants, and without their knowledge. In con- science and equity, according to Winthrop v. Lane, they ought not to avail themselves of the benefit of that lien to the prejudice of complainant's previously acquired right. And according to Watson v. Palmer, equity ought to afford them relief, because, from a want of notice, they were not permitted to appear and defend against the application. Again, whenever the remedy at law is defective, doubt- ful or.difficult, a court of equity has jurisdiction. Seymour v. Delaney, 3 Cow,, 445; Amer. Ln. Co. v. Fisk, 1 Paige, 90 ; League v. Russell, 2 Stewart, 420. Upon the first point we conclude, then, that the bill presents a case in which relief may be given in a court of equity, and that the demurrer was correctly overruled. 2. As an objection to the decree, it is urged that the right of Preston & Hastings to a specific lien was res ad- juclicata ; that the allowance was made to attorneys aa officers of the court, and is obligatory. If the matter had been within the jurisdiction of the supreme court, and if all the parties affected by the lien had been properly notified of the proceeding, it might with propriety be regarded as res adjudicata. But as the powers of this court are merely corrective and appellate, as they comprise no original jurisdiction, om* authority to grant an original application for a lien ma}"" 'well be ques- tioned. Such an act cannot but be regarded as an as- sumption of original power, unauthorized by the constitu- IOWA CITY, JUNE, 1850. 541 Preston v. Daniels. tion and laws of the state. By such an application a new issue was raised, new parties were substituted, and a sub- ject matter not before adjudicated was brought before this court. The motion was hastily presented, no one appeared to object, and without sufficient consideration the lien was granted. We are now satisfied that this proceeding was extrajudicial, that the lien was coram non jiidice and void. The court below, then, did not err in declaring the lien to be inoperative. The fact that the attorneys were officers of this court can- not change the case ; it cannot enlarge our jurisdiction. An attorney is doubtless entitled to a lien for his ser- vices upon a judgment obtained by him for his client ; but that lien must be secured before a court of original iurisdiction. If the lien is sought for services rendered in the supreme court, it can only be secured by having the judgment re- turned to the district court. As this question of jurisdiction justifies the decision of the court below, it is not necessary to inquire into the merits of the lien. Decree affirmed. S. Whicker and /. M. Preston^ for appellants. N, W. Isbell and Wm, Smyth, for appellees. CASES IN UW AND EQUITY, DETERMINED IN THB SUPREME COURT OF THE STATE OF IOWA, DUBUQUE, JULY TERM, A.D. 1850, In the Fourth Year of the State. Hon. JOSEPH WILLIAMS, Chief Justice, Hon. JOHN F. KINNEY, ) t , ^ Hon. GEO. GREENE, \ •^"»^«* BUELERSON v. TEEPLE et oL A fence built upon public land, even by mistake, passes with the freehold to the purchaser from the government ; and if such fence is detached from the realty by a wrong doer, the purchaser's right to it is not divested. A duplicate receipt or certificate from the receiver or register of a land office is made by statute prima facie evidence of title in actions of trespass, right, &c. Error to Jackson District Court. Opinion hy Kinney, J. Bui'lerson sued the defendants in error before a justice of the peace, in an action of tres- pass, for entering upon his premises, and carrying off one DUBUQUE, JULY, 1850. 643 Burlerson v. Teeple. hundred and seventy-five rods of rail fence, and for taking away five thousand rails, to the damage of the phiintiff of $100. The defendants recovered a verdict, and the plaintiff appealed. Upon the trial in the district court, the plaintiff gave in evidence tlie original duplicate receipt from the register of the land office, bearing date the 7th day of January, 1850, as evidence of title and. possession of the locus in quo. The plaintiff also proved that the fence was standing on the premises at the time of the entry, and that it was a stake and rider fence, and standing until the day before the rails were re- moved. The testimony also showed that the rails were in piles when the defendant took them, and did not show that the defendant meddled with the rails while in the fence. The testimony tended to show that the fence was on the premises of the plaintiff, from ten to twenty rods distant from the south line of Burlerson's land. That the fence was put there by defendants some seven years before the commencement of the suit, and at that time they supjiosed it was on the line between the locus in quo and their own land ; also that the locus in quo, at the time the fence was built, was government land, and there was no evidence that Burlerson ever claimed the premises previous to his entry. The defendants, among other things, asked the court to instruct the jury, that if the jury believe that the rails were originally the property of the defendants, the plaintiff cannot recover unless there is evidence that they touched the rails in the fence, which was given by the court, and excepted to by the plaintiff". The court also charged that, if the jury believed, from the evidence, that the fence, of which these rails were made, was made by the defendants, supposing they were on the line of their own land ; that if it turned out that they were on the land of the plaintiff", or which the plaintiff purchased, the de- fendants had a right to go and take them as their own, wiihout being liable to an action of trespass to Burlerson, notwithstanding the general principle of law, that whoever 544 SUPREME COURT CASES, Burlerson v. Teeple. owns the land owns the houses, fences, and everything upon it. To which charge the plaintiff excepted. The plaintiff asked the court to instruct the jury, that if the jury find that the fence stood some fifteen rods from the north line of plaintiff's land, that he will be entitled to the fair value of the rails, even though the defendants may have supposed, at the time they built the fence, it was on the south line, which instruction the court refused. Whereupon the plaintiff excepted, &c. This constitutes the testimony and material part of the instructions given and refused, as set out in the bill of exceptions, and upon which the jmy found a verdict in favor of the defendants. Giving the instructions asked by the defendants, and re- fusing those of the plaintiff, are assigned for error. The question presented by the evidence and the instructions, when narrowed down, is simply this : Did Burlerson, by his entry of the land, acquire title to the fence upon it, although that fence was placed there by the defendants through mistake, supposing at the time it was made to be upon the line of their own land, and put there for the pur- pose of a line fence ? The court instructed the jury that the defendants had a right to remove the rails. This was error. Nor is it material whether the rails^ at the time they were removed, were in a fence or in piles. The tes- timony shows that at the time the land was entered by Burlerson, the fence was standing, and as such it was at- tached to, and constituted part of, the freehold, and became the property of the plaintiff as much as a house, or any other permanent fixture upon the land. " It is a general principle, that all permanent buildings follow the tenure of the soil on which they are erected. The fence which encloses a field is within the doctrine. It is necessary for the use and occupation of the ground, and cannot be re- moved without injury to the freehold. On alienation it passes with the soil." Seymour v. WaUon^ 5 Blackf., 555; 4 Kent Com., 342; 3 Bacon Abt., 63. Burlerson having become the owner of all the improve- ments by virtue of his purchase, the act of a wrong doer. DUBUQUE, JULY, 1850. 645 Burlerson v. Teeple. in detaching from the realty the fence, would not divest him of his title to it. By om- statute, the duplicate receipt of the receiver, or the certificates of the register, is prima facie evidence of title or the right of possession in any action of trespass quare clausum J regit, action of right, or other action of law or equity ; and such certificate or receipt is to have the same effect in law in establishing possession as a deed of conveyance or a patent. Rev. Stat., p. 387, § 1. The plaintiff, then, upon introducing his register's re- ceipt, exhibited, for the purpose of maintaining the action, a good title to the land upon which the fence was located, and consequently a right to have and enjoy all the fenc- ing upon tlie land covered by the register's receipt. Nor would the fact of the defendants having made rails and erected the fence upon the land supposed to be their own, but which upon survey is found to belong to another, change the rights of the parties. Although in a new country like Iowa, where claims are made and fences built in many instances before the land is surveyed, the princi- ple of law, that where a man enters land, he enters all the improvements upon it, may and often will operate oppres- sively ; still, a doctrine so well settled in the books can- not be made to yield to particular emergencies. The rule applies with rigor to those who honestly supposed they were building a fence upon their own land, which, how- ever turns out upon survey to have been government land. But the princiiile involved in this case has been well set- tled by the authorities. In the case of Goodrich v. Jones, 2 Hill, 142, it was held that fencing materials on a farm, which had been used as part of the fence, but temporarily detached without any intention of diverting them from their use as such, were a part of the freehold, and passed by a conveyance of the farm to the purchaser. In the case of Blair v. Worley, 1 Scam., 173, although there was a statute giving the right to remove fences made by mistake upon the land of others, yet the court decide that the statute has no relation to a case where a 546 SUPREME COUHT CASES, Burlerson v. Teeple. fence is erected upon lands of the United States or of tlie state. The court also decide that the purchaser of land from the government of the United States acquires all the im- provements made upon it anterior to his pmchase. In that case Worley erected a fence upon certain public lands. Blair afterwards purchased the same, and took and removed the fence. Worley sued him in trespass. It was claimed that as Worley erected the fence on the tract described through mistake^ believing it to be on the adjoining tract, of which he was the proprietor, he was en- titled to the rails. This position was sustained by the court below, but the decision was reversed by the supreme court. A case entirely analogous to the one at bar is found in Seymour v. Watson, 5 Blackf., 555. The parties were pro- prietors of adjoining fields. The defendants purchased the land of the United States, and before his lines were run, and while plaintiff's land was vacant, enclosed his field with a rail fence made with his own rails, and in doing so he placed a part of the fence on the land of the United States, which the plaintiff afterwards purchased. The defendant moved the fence from the land of the plain- tiff to his own land. The plaintiff sued and recovered. The court say, '' that the defendant having placed the fence in question on the land of another by mistake, does not alter the matter; it was no less a part of the freehold for that reason. Being the property of the United States, in conse- quence of its annexation to the soil, it passed to the plaintiff by virtue of his purchase of the land on which it stood." As these authorities are not questioned, they must be decisive of the case before us. The authority cited by- counsel for defendant in error, in case of Wincher v. Shrewsbury, found in 2 Scam., 283, is not in point. In that case the plaintiff had made from timber growing on public land a quantity of rails, and left them piled upon the land. The defendant afterwards purchased the land of the government, and converted the rails to his own use. DUBUQUE, JULY, 1850. 547 Wright V, Watkins. It was held that they did not pass with the land. The court decide that as the trespass was committed anterior to the purchase, that the government was entitled to an action either in trespass or trover, and that the rails, when not put into a fence nor intended for that purpose, would not pass by alienation. From the general and well established principle of law that a fence attaches to and becomes a part of the freehold when erected, and follows the tenure of the soO, (and although built upon the land of another by mistake, the rule remains the same,) it follows, as a necessary result, that the plaintiff in this ce,se, when he purchased the land upon which the fence was situated, became the owner thereof, and the defendants were trespassers in removing it, or the rails which composed the fence at the time of the pm'chase. Judgment reversed. P. f J. M. Smith, for plaintiff in error. L. Clarkj for defendants. WRIGHT et al. v. WATKINS. A decree in bankruptcy, under the general law of Congress, ordered by a court of competent general jurisdiction, cannot be collaterally drawn in question. The territorial district courts were invested with full power to adjudicate causes in bankruptcy. Nothing,' should be presumed against the authority or proceedings of a court of general jurisdiction. Ekror to Jackson District Court. Opinion by Greene, J. An action of assumpsit on a pro- missory note by Wright & Jackson o^ainst Wm, Watkins. 548 SUPREME COURT CASES, Wrisrht v. Watkins. I The defendant pleaded bankruptcy under the general law. To this plea there was a special replication in confession and avoidance, averring that the petition, schedule and affidavit in the bankrupt proceedings were so defective that the court could not entertain jurisdiction upon them. These j^apers appear to have been drawn up in the usual form adopted by our territorial courts in bankrupt pro- ceedings, it therefore is not necessary to describe them. They appear to have been definitively acted upon by a court of competent general jurisdiction ; to have resulted in a full discharge and certificate of bankruptcy, and can- not therefore be thus collaterally di-awn in question for the alleged irregularities. We say the proceedings were be- fore a court of competent jurisdiction, as they were enter- tained by the district court of Jackson county under terri- torial organization. Under the act of Congress, that court was invested with full power to adjudicate causes in bankruptcy, and as it was a court of general jurisdiction, nothing should be presumed against its authority and the regularity of the proceedings. These should be presumed until the contrary appears. By the bankrupt law the dis- charge is made conclusive evidence in favor of the bank- rupt, unless impeached for fraud or wilful concealment by him of his property or rights of property. Rev. Stat., § 4. The law contemplates no other ground of impeach- ment. The irregularities complained of can by no means be entertained in a collateral proceeding like the present. We conclude that the court below did not err in giving force to the certificate in bankruptcy, upon the record as it appears before us. Judofment afiirmed. Vcm IT. Higgins, for plaintifis in error. P. Smith and D, F. Spurr, for defendant. DUBUQUE, JULY, 1850. 549 Bush V. Chapman. BUSH V. CHAPMAN". Where suit is brought on a written or special contract, it must regulate plain- tiff's right to recover, as well as the amount recovered. Where plaintiff sued for work done pursuant to a written contract, and filed no bill of particulars, it is error to admit evidence to show that he had sustained damages in consequence of delays occasioned by defendants fail- ing to furnish the materials promptly. By claiming the benefit of a special contract, and making it the gravamen of his action, the plaintiff is precluded from recovering damages for delay, &c. Error to Dubuque District Court. Opinion by Williams, C. J. Assumpsit for $1000 damages in the district com*t of Dubuque county. The plaintiff filed his declaration, setting forth, as the gravamen of his action, a special contract made by himself and the defendant Bush, on the 24th day of July, 1849, by which it was agreed that the said Chapman was to do the mill- wright work of a flouring mill for the said John D. Bush, in the stone building erected for this business in the city and county of Dubuque, state of Iowa. Bush was to fur- nish all the materials for the same. The mill was to con- sist of two pair of three and a half feet French burr mill stones, now on the premises. Chapman was to do all the work that was necessary, in a good and workmanlike manner, and to have the mill in order for grinding by the Ist of October next thereafter ; then to have an extension of time to complete work that would not interfere with the grinding and making of flour. In consideration of which, Bush was to pay Chapman $900, in the following manner, to wit : One half to be paid as the work progressed, and the other half when the work was complete. The plain- tiff avers, that he was ready and willing to keep and perform his part of the agreement, as made between him and the defendant ; but that the defendant failed, on his part, to furnish proper materials, so as to enable him to 550 SUPREME COURT CASES, Bush V. Chapman. complete the millwriglit work at the time agreed upon ; and that, nevertheless, he did finish and complete all of the work, so as to be ready for grinding on the 1st day of February, 1850. The declaration proceeds in the same count to specify what materials, necessary to the completion of the work in the time appointed by the ngreement, the defendant Bush had failed to furnish, to enable the plaintiff to j^rogress with the work; the manner of his failure, and the injury sustained by the plaintiff in consequence of that failure ; and claims damages therefor, $1000. The second count is for work and labor done, materials furnished at the instance and request of Bush, and for damages sustained by plaintiff by reason of a failure to furnish necessary materials, &c. Common counts for work and labor done and performed, and quantum meruit^ are added, with the averments of undertaking and promising to pay, &c. In the district court a verdict was rendered, and judgment entered thereon, in favor of plaintiff, for the sum of $260.75 cents, and costs. Several questions were presented on the trial, and de- cided by the court below. Exceptions were taken by the defendant's counsel. A motion to set aside the verdict and for a new trial was also made and overruled. As the case is presented upon errors, we consider it necessary to notice but one. We will let the others stand, as they have been decided by the court below, deeming them legally adjusted. The third point made by the counsel for the plaintiff in error is, that the court below erred " in admitting evidence adduced by the plaintiff to show that he had sustained damages in consequence of delays occasioned by the defendant's failing to promptly furnish the plaintiff with materials for the erection of said mill, when the plaintiff had declared on a written contract, and when he had filed no sufficient bill of particulars." The bill of exceptions shows that this evidence was ruled to be admissible, and was suffered to go to the jury. The price of the work fixed by the special and written DUBUQUE, JULY, 1850. 551 Bush V. Chapman. contract, the admitted and proven credits of the de- fendant, and the verdict of the jury, show, by proper computation had, that the jury must have taken this evidence into consideration, so as to give it effect to make it a part of the sum for which the verdict was ren- dered. By his declaration, the plaintiff has made the written agreement, as executed between him and the defendant, the gravamen of his action. He avers a complete per- formance of his part of it, and sues for the price of the work as therein stipulated. He seeks to enforce the pay- ment of the price therein fixed, on the ground that he had, by the 1st day of February, 1850, (some three months after the time set by the written agreement,) completed the work, notwithstanding the failure of Bush to furnisli the proper materials at the stipulated time, so as to enable him to proceed with the work as required by the agree- ment. At the same time, he declares upon the common counts for work and labor done, &c., and thereby claims the benefit of an adjustment of his rights, independent of the written contract, so as to enable him to recover the value of his work upon evidence thereof; and also his damages for hindrance, outlay, loss of time, &c., occa- sioned by the default of the defendant in not fulfilling his 'undertaking. This cannot be allowed. If a plaintiff sue on a written or special contract, so as to make it the basis of his action, it must regulate his right to recover, as well as the amount recovered. In this case it is clear that plaintiff did not consider the written contract, if violated by the defendant, at an end when the failure to perform on his part occm-red. But that, on the contrary, he treated it as subsisting, and in force. He proceeded on it, completed the work, and made it the ground of his action at law. By asserting the binding effect of the special contract, claiming the benefit of it, and making it the gravamen of his action, he is precluded from the recovery of any dam- ages for delay, &c. This doctrine is recognized and asserted 552 SUPHEME COURT CASES. Bush V. C'liapman. in Cliitty on Contracts, 5 Am. Ed., 570, note 2 ; reference to Sham v. Lewistown Turnpike Roaxl Co., 3 Penn., 445. In disposing of this case, chief justice Gibson says, "then, if the company had put it in his power to dispense with the contract by reason of delinquency in the advancement of funds, it was his business either to take advantage of the omission by declaring the contract at an end, or to waive the consequences of the default by treating it as still subsisting. He chose to do the latter, and though it appeared the work had languished for want of the requi- site advancements, he continued his services without any intimation of their being rendered on new and imj^lied terms. That he considered the original contract as a subsisting one, appears from his having counted on it. The very \Vork for which he demands compensation was done on the faith of that contract. Would he have been per- mitted to go on, had he informed the company that he was working under no contract but what the law might imply? " The principle of law here laid down, directly ai^plies to the case at bar, and its application is most forcible. In the case referred to, the plaintiff sued in assumpsit, on a quantum meruit count, and treated the special contract as valid and subsisting, and sought to recover on that ground. In the case at bar, the plaintiff not only treats the written contract as subsisting and binding in all its- terms, but at the same time claims to recover damages for delay, hindrance, and extra expense in completing the work. By admitting the evidence of damages, thus sus- tained by the plaintiff, by reason of the default of Bush, the case became duplex in substance, as well as in form, by the declaration, and a verdict is rendered by the jury for the contract price, and damages for the violation of the contract. The action being brought on the written contract, the plaintiff cannot recover damages which are not stipulated for in it. To this effect, vide 9 Ala., 106 ; 11 idem, 377; 1 Gr. Greene, 408; 14 Maine, 364, 1 Shep.,60; 4 Pick., 114; 19 idem, 349 ; Chitty on Contracts, 5 Am. Ed., 741, 742. See also Rev. Stat., 469, § 6, in relation to filing DUBUQUE, JULY, 1850. 553 Frcn tress v. Markle. tlie plaintiff's declaration and tlie copy of the instrument of writing or account, on wliich the action is brought. The judgment of the court below is in this erroneous. Judgment reversed. B. M, Samuelsy for plaintiff in error. Hempstead Sj" Burt, for defendant. • FRENTRESS v. MARKLE. A joint debtor has a contingent demand against his co-debtor, which is prov- able under the fifth section of the general bankrupt law, and is barred by a certificate of bankruptcy; such bankrupt is therefore a coinpetent wit- ness in an action against his co-debtor. E. and J. executed their partnership note to F. ; before the note became due, E. and J. dissolved partnership, and it was agreed that E. should take the goods and credits and pay the debts of the firm. F. approved the arrange- ment, and promised to return the partnership note, and take in satisfaction the individual note of E., and give J. a receipt ; but the old note was not given up, nor was a new note or receipt given ; F. sued E. and J., but ob- tained service and judgment only against E., who was afterwards dis- charged from the judgment by a decree in bankruptcy ; afterward pro- ceedings were commenced by scire facias against J. to make him a party to the judgment : held that the agreement between the parties did not show a release to J., or an accord and satisfaction ; that it was only an executory agreement. A release is an executed contract, and must be under seaL An accord not executed is no bar to an action. An accord and satisfaction, to constitute a legal bar to an action, must be full, perfect and complete. In order to have a promise operate as a satisfaction, it must be that of a third person ; something over and above the original promise or indebtedness. Error to Dubuque District Court. Opinion by G-reene, J. Proceedings commenced by scii^e facias against John W. Markle, to make him a party to a judgment rendered against his former partner, E. Mat- tox, on their joint note executed to the plaintiff. It appears of record in the case, that in 1839, Mattox Vol. IL 36 554 SUPREME COUET CASES, Frentress v. Markle, & Markle were partners as mercliants, and being in- debted to E. Frentress, tliey executed their joint note for tbe payment of f 1000. Before the note became due, the partnership was dissolved, and it was stipulated that Mattox should take the goods and credits and pay the debts of the firm. A few months after this arrangement, the parties met, and the plaintiff approved the arrange- ment, and promised to return the partnership note and take in satisfaction thereof the individual note of B. Mattox, and give Markle a receipt against the partnership note. But the old note was not given up, nor was a new note nor a receipt given. Frentress sued Mattox & Markle in 1840 on the note, and. obtained judgment against Mattox, who alone was served with process. In 1843, Mattox was discharged from his debts under the general bankrupt law. On the trial of this cause, the defendant pleaded the general issue, and on jjroving the foregoing facts, con- tended that he was discharged from all liability, and ob- tained judgment accordingly. One of the objections urged to the proceedings below is, that Mattox was admitted as a witness in Markle' s behalf. It is contended that Mattox was incompetent, because he was a party to the note and to the record, and interested notwithstanding his discharge in bankruptcy. We cannot think that he was objection- able as being a party to the original suit uj)on the note. From that record he had been completely discharged by his bankrupt certificate. But it is contended that Mattox was interested in this suit, because Markle could have no claim on him until after judgment and a satisfaction of the debt, and that if Markle was required to pay the debt, he could then present his demand for contribution against Mattox. This position would be correct if the contingeni demand of Markle against Mattox for contribution had nol been provable under the general bankrupt law, passed by Congress in 1841. The fifth section of that act allowed " sureties, indorsers, bail, or other persons having uncer- tain and contingent demands," to prove their claims under DUBUQUE, JULY, ISbo. 555 Frentress v. Markle. a commission of bankruptcy. As every joint debtor has a contingent demand against his co-debtor, depending upon his being compelled to pay more than his share of the joint debt, it is clear that such a claim is provable under the fifth section of the act. And according to the fourth section, all provable claims are barred by the bankrupt's discharge and certificate. Consequently, any demand that Markle might have for contribution against Mattox, was barred by his certificate of bankruptcy. His interest, then, could not in this particular be affected by any judgment for or against Markle. He was, therefore, a competent witness. Dea)i v, Speakman, 7 Blackf , 317. The principal question involved in the trial below re- mains to be considered. The court charged the jury in substance, that if they believed that Frentress agreed, be- fore the note fell due, to relinquish Markle, and surrender the partnership note given by Mattox & Markle, for a new note against Mattox alone, and that Mattox & Markle settled their partnership business on the streugth of such agreement, it is in law a discharge of the debt against Markle, and the failure of Frentress to surrender the old note and take a new one, cannot be set up as a reason for enforcing the collection of the original note against Markle. In the application of these instructions to the evidence, the court must have regarded the transaction either as a release or as an accord and satisfaction. But the instruc- tions themselves show, that it was merely an executory agreement, which could have no binding force in either of those particulars. As a release, it is essentially defi- cient. It is not under seal, not even in writing, and im- ports no consideration. In Dillingham v. Estill, 3 Dana, 21, it was held that a release is an executed contract, and must be under seal. This decision, however, goes too far, for the weight of authority shows that a seal is not neces- sary to the validity of a release, unless it pertain to an interest in land, or to a debt due by an instrument under seal, which can only be released by a writing of equal dignity. Co. Litt., 264; 8 Taunt, sf, 596; 7 Blackf., 562. 556 SUPREME COURT CASES, Frentress v. Markle. But when a release" not under seal is admissible, it must acknowledge a consideration. 4 Gilm., 545. Hence, with- out a seal, and without consideration, there can be no re- lease. 13 John., 87; 17 id., 169; 1 Cowen, 122. As the agreement does not amount to a release in law, can it be considered an accord and satisfaction ? The agreement was to give up the company note and take the individual note of Mattox in satisfaction. But the agree- ment was never executed, the satisfaction was never given, and hence it can onl}?- be regarded as an executory accord without satisfaction. It is clear that an accord not executed can be no bar to an action. Coitw Houston, 3 Johns. C, 243; Watki?i- son V. Ingleshj, 5 Johns., 386; Latapeck v. Peckolier, 2 Wash. C. C, 180 ; Russell v. Lytle, 6 Wend., 390 ; Brook- lyn Bk. V. De Granio, 23 ib., 342; Frost v. Johnson, 8 Ohio, 393. The accord or agreement to accept satisfaction must be fully executed to form a defence. 3 East., 252; 1 Ld. Ray., 122; Bac. Ab., tit. Accord A; Woodruff •^. Dobbins, 7 Blackf., 582. An accord and satisfaction, to constitute a legal bar to an action, must be full, perfect, and complete. This prin- ciple is not questioned by any authority. Apply the doc- trine of accord and satisfaction to the present case, and upon the important point of satisfaction it will be found entirely deficient. The accord was not only left without execution; it was also left without any consideration. Frentress received nothing in payment, nor did he receive new or additional security. The fact that Mattox & Markle settled their partnership business with reference to this agreement, creates no valid consideration to Fren- tress. He was not a party to that settlement, and derived no benefit from it, nor was Markle injured thereby from his procurement. And although Markle left sufficient means with Mattox to pay half the note, it was far from being a satisfaction to Frentress, especially as the condi- tions upon which he promised to give up the company note had not been complied with. DUBUQUE, JULY, 1850. 667 Fren tress v. Markle. But if the agreement had been fully executed, the old note given up, and the note of Mattox accepted with the express understanding that Markle was to be discharged, it might well be questioned whether even this would amount to a legal defence of the partnership indebtedness, unless the Mattox note had actually been paid. Under the arrangement, the security would be decreased rather than increased. It would be substituting a less promise for a greater, one for two. And it is as obvious in reason as it is well settled in law, that to have a promise operate as a satisfaction, it must be that of some third person, or something over and above the original promise or in- debtedness. In Cole V. C. f K Sackeft, 1 Hill, 516, C. and E. being partners, gave their note for a debt of the firm, under an agreement that it should be in full satisfaction ; and after dissolving, E. agreed, for a consideration received from C. to assume and pay the debt for which the note was given, and accordingly took up the firm note and gave his own •in lieu, and it was held to be no bar to a recovery on the original consideration. The opinion in that case was de- livered by Judge Cowen, and he deliberately declared the doctrine to be entirely settled, that the promissory note of a debtor, given for a precedent demand, will not operate as payment, so as to preclude the creditor from suing on the original consideration, though given under an express agreement that it should be received in full satisfaction ; but otherwise if the note be that of a third person. This doctrine was subsequently reconsidered and approved in Waydell v. Luei\ 5 Hill, 448. And in that case, it was held that the giving of a promissory note by one of several partners for a demand antecedently due from all, will not extinguish their liability, though the creditor expressly accept the individual note in satisfliction. This doctrine is entirely established in New York and New Hampshire, and, with slight exceptions, in the other states of this union. In England the doctrine that a mere accord, if it be 558 SUPREME COURT CASES, Frentress v. M;u-kle. binding and afford a new remedy, was for a time consid- ered a bar to an action. Case \. Barber, T. Ray., 450; Milward v. Ingraham, 1 Mod., 205; Reed v. White, 5 Esp., 122; Evans v. Drummond, 4 ih., 89. But before the dis- criminating mind of Lord Tenterdon, this doctrine was found to be deficient in legal principle, and is now nearly obsolete, if not entirely repudiated. David v, Ellice, 5 Barn, & Cress., 196; Lodge v. Dicers, 3 Barn. & Aid., 610; 5 East., 233; 11 Eng. Com. La^, 201. And Gow. on Part., Am. Ed., 1825, p. 200, thus defines the rule : '' When the two requisites of a joint interest and a joint credit con- cur, nothing but actual satisfaction, or the extinguish- ment of the original consideration, by the acceptance of a higher security, can invalidate the claim which the credi- tor possesses against the firm." Apply this rule to the present case, and it obviously follows that the original claim is not invalidated. There was no actual satisfac- tion, nor was any higher security substituted. In a word, the case at bar does not come up to any of the authorities, English or American, to which we have been referred by counsel for the defendant in error. It may well be con- sidered a legal axiom that a promise to pay a subsisting debt is no consideration, is no satisfaction. How then can a mere agreement to have one joint debtor promise to pay a partnership debt be considered a satisfaction ? But in the case at bar it is contended that Mattox & Markle settled their partnership business upon the strength of the agreement that Mattox should pay Frentress, and that it is now unjust to enforce payment of Markle. While we regret the consequences of this decision upon Markle, we cannot disregard the principles of law by which we are governed. Nor can we forget the manifest propriety of the rule that partners are all principals, that each is bound for the debts of the firm in solido ; that where they have had their creditor's money and eaten their bread at his expense, it is their duty severally and jointly, not merely to promise by their note, and above all by the agreement to give the promissory note of one member of DUBUQUE, JULY, 1850. 559 Grable v. The State, tlicir firm, but it justly and legally becomes their duty to repay the money loaned by the plaintiff, or pay the price of his property which was appropriated to theii" benefit. We must therefore conclude that the charge to the jury in this case was erroneous. Judgment reversed. P. Smith, T. S. Wilson and M. Y, Johnson, for plain- tiff in error. Hempstead ^ Burt, for defendant. GRABLE V. THE STATE. In a criminal case the jurors had been empanneled and sworn, and the case partly submitted to tliem, when the court adjourned for dinner; during the adjournment one of the jurors separated himself from liis fellows ; and when the court met, this juror was dismissed and another person substituted : held that this substitution was erroneous. The statute prohibits tlie separation of jurors in trials for felonies. It is error to receive a verdict and render a judgment after the term of a court, as designated by law, has expired, and on a day fixed for a term of the court in another county. Where a term of court is appointed by law to be held in Clinton county on Monday, and in Scott county on the following Thursday, the term in Clinton county ends on Wednesday evening. Explains power of the district judge to appoint special terms of court; rea- sonable notice must be given. Two terms of the district court cannot be held in one district on the same day. Error to Clinton District Court. Opinion by Williams, C. J. At the October term of the district court for Clinton county, a.d. 1848, Joseph Grable was indicted and tried for the crime of mau- slaughter. The jury rendered a verdict of "guilty," and assessed a fine of $500, to be paid by him to the 560 SUPREME COURT CASES, Grable v. The State. state. Upon this verdict the court entered judgment against him ; and further sentenced him to confinement in the penitentiary for the term of one year, and to pay the costs of prosecution. Before final judgment, motions for a new trial, and in arrest of judgment, were made, and overruled by the court. The overruling of the motions for a new trial, and in arrest of judgment, is also assigned for error. The points of law involved in the instructions, and in the motions for a new trial, and in arrest of judgment, being substantially the same, we will consider them to- gether. The first error assigned is, that " after the jury had been sworn, and had heard a part of the evidence, one of the jurors was separated from his fellows, and entirely left them." The second is, that " the court permitted the prosecu-^ tion to withdraw the said juror, who had been separated from his fellows, and swore another juror in the place of the juror so discharged." As these two assignments relate to the same subject matter, in the procedure of the court below, and present the entire transaction in connection, we will consider them together. The trial by jury, as established by our fundamental law, is justly regarded as a shield to the citizen in the en- joyment of his civil rights. It is secured to every man, that he may be fully and fairly protected from unjust and illegal encroachment upon those rights. Originating in times of tyranny and oppression, where the governed were rendered liable to the loss of life, liberty and pro- perty at the mere will of those who governed, it has come down to us sanctioned by the a]3proval of the learned, the good and patriotic of many generations, and is adopted by the civilized nations of the earth. It is now regarded as essential to free government, and is peculiarly adapted to a government founded as ours is, in the sovereign will of the people. A juror is called to « DUBUQUE, JULY, 1850. 561 Grable v. The State. exercise a high and sacred trust, in consideration of his obligation to his country and his fellow citizens. He must, if he will faithfully perform his duty, hear, investi- gate and decide impartially. The facts submitted to, and decided by the jury make up the case, to which the judgment of the law is applied, and by which the rights of the parties are concluded. So important is this feature of our judicial procedure, that the courts of our country have regarded it with the most profound interest and jealousy. In criminal proceeding particularly, the fullest and most extended opportunity is afforded to the accused for trial by an impartial and unbiased jury. It has been the constant care of courts to guard the purity of the jury box ; and legislatm-es have provided, by enactment of law, the strictest procedure for the selec- tion and government of jurors, and the requisites to be obdved by courts on the trial in view of the rights in- volved. In this state the statute provides, that "all issues of fact joined upon any indictment shall be tried by a jury of the courts where such was found." This is identical in substance with the provisions of our constitution, applied to indictable offences. Rev. Stat., p. 155, § 60. By § 62, the right is given to the accused to challenge peremp- torily six jyrors, where a felony is charged, the punishment of which is not capital; and it is the privilege of the prosecution to challenge half that number. Thus have the legislature by express provision, been careful to mark out the duty of the court and guard the rights of parties. It has been m-ged here, that the act of the court, by dis- missing the juror after he had been sworn, and after he had heard a part of the testimony in the case, on the motion of the prosecutor, where it was not made to appear that he, the juror, had conversed with any person on the subject of the trial, but had merely separated from his fellows, was in derogal Ion of the rig hts of the accused ; and that the calling and swearing of another in his stead, 562 SUPREME COURT CASES, Grable v. The State. after the right to challenge had been exercised to exhaus- tion, was oppressive, and deprived him of his legal protec- tion from M^rong. The bill of exceptions does not set forth the fact that the right of the prisoner to challenge was refused by the court upon the introduction of the juror who was called to act in the place of the one who was dismissed. That question is not, therefore, here for adjudication. As the record is, on that point, we must not presume that the court did not refuse to give the prisoner the benefit of the law. But the bill of exceptions shows that the full jury had been sworn, and the trial before them had so far been proceeded in, that a part of the testimony in the case had been heard; that the court adjourned for dinner; that during the adjournment, the juror separated himself from his fellows, and that, on the motion of the prosecutor, made in the afternoon, when the court again was in session, the juror v.as dismisssed, and another sworn and put upon the jmy in his stead. In this, we think, the court erred. Tliis proceeding must be regarded as a vio- lation of the requirement of the statute. Rev. Stat., p. 161. "In trials for misdemeanors the court may permit the jury to separate for food and refreshment. But in trials for felonies the jury shall not be separated until there is no prosjject of their agreement to a verdict, and it shall be the duty of the court to provide them all suit- able refreshments." This being an indictment for a felony, the statute is applicable to it. It is not necessary, in this case, to discuss at length the question whether the separation of the juror from his fellows, after he had been sworn in the case, ..nd the trial had proceeded so far as to hear evidence on the part of the prosecution, is enough to set aside the verdict. We will however say that, in a capital case or for a felony of the magnitude of the case at bar, it has been decided that where, pending the trial, a juror separates himself from his fellow jurors under cir- cumstances which i-endered it highly probable that there might have been abuse, or improper conduct, affecting the rights of the parries, the verdict should be set u^Ide. DUBUQ'UE, JULY, 1850. 5G3 Giable v. The State. Smit/i V. Thompson^ 1 Cowen, 221 and note. But our legislature have enacted that, '' In trials for misde- meanors, the court may permit the jury to separate for food and refreshment ; but in trials for felonies the jury shall not be separated until there is no prosjDect of their agreement to a verdict, and it shall be the duty of the court to provide them all suitable refreshments." Rev. Stat., 161, § 9. This enactment, in terms not to be misun- derstood, expressly prohibits a separation of the jury in trials for felonies ; and provides for the comfort of the jury, whilst in custody of the law, for purposes of the trial. Much disquisition by jurists, as to the separation -of jurors in its effect upon the verdict, is found in the law books of England and this country. But it is unnecessary to enlarge for the purpose of ascertaining judicially, and establishing, the most reasonable conclusion, as the law- making power of this state has declared it clearly. For this reason, the court might have set aside the verdict if that jm-or had participated in making it. His exclusion from the box was, therefore, proper. This brings us to the next point in the assignments of error. It is contended that the court erred in permitting the prosecution to withdraw the juror who had been separated from his fellows, and in calling and swearing another juror in his place, after a part of the evidence in the case had been heard by the jury as at first constituted. The bill of exceptions shows that such was the pro- cedure of the coiu-t. This proceeding is complained iif by the defendant as an infringement upon his right of chal- lenge. It appears that the defendant stood upon his legal rights, and remained silent during this action of the com't. We have already spoken of the rights secured by law to the accused in a proceeding for a felony. It is his right by the statute to challenge i)eremptorily six jurors. The introduction of the new juror without the consent of the accused, might, if suffered to stand as a precedent, lead to injustice, by procuring such change in the panel as ^vou^d result in injustice to him. Having exhausted his dial- 564 SUPREME COURT CASES, Gral>le r. The State. lenges before the calling of the new juror, for whose re- jection he might have good cause of challenge, by oper- ation of law, he would be obliged to accept him; and thus be materially injured in his right. Besides, such a com- bination of mind might be thus brought to the adjudica- tion of a case, as would never have been suffered by the party, had his right of peremptory challenge not been ex- hausted upon a view of the panel as it stood upon the selection, as made when the trial was commenced. The right of the accused, in this respect, we think was infringed by this proceeding. The accused had the right to his chal- lenge of all the jurors. Scone v. The People, 2 Scam., 326 ; The People v. Goodwin, 18 Johns., 187. But the case, as presented and nrgued here, is affected by a proceeding still more objectionable than that just noticed. It appears by the bill of exceptions, that a part of the testimony of the prosecution had been heard by the jury in the forenoon of the day on which the trial commenced, and when the discharged juror was acting with the jury ; that after an adjournment for dinner, in the afternoon, when the defaulting juror had been discharged, a juror was called to act in his stead, and the trial pro- ceeded without recalling the witnesses who had been heard by the jury as at first organized. Such being the fact, as presented, that part of the testimony was not heard by the new juror. The law contemplates the hearing of the evidence by each juror for himself. It is the right of the party that it eliould be so. A full and fair trial by jury could not be otherwise had. A jealous and strict regard for the integrity of the jury, as legally established, cannot be dispensed with. The law has carefully pro- vided guards in order to the protection of the rights of parties. They must be strictly observed. As far as a part of the testimony was concerned, in view of the law, the defendant was found guilty upon the verdict of eleven jurors. This proceeding was, therefore, erroneous. Upon the introduction of the new juror, the evidence should have been commenced and heard anew. The trial should DUBUQUE, JULY, 1850. 505 Grable v. The State. have been commenced de novo, upon the change of the jury. The other and only assignment of error which we deem it necessary to notice, is that in relation to the right of the court to be in session and to try causes in Clinton county, on the day upon which this trial was had. It is contended, that by the law hxing the time for hold- ing the district court in Clinton county, the term ended on Wednesday, and commenced in the adjoining county of Scott on Thursday of the same week. Tliis is true. But in answer to this, the act of the legislature, approved Jan- uary 22, 1848, entitled " An act to change the times of holding courts in the second judicial district " of this state, is replied. By this act it is provided, that " in the county of Clinton, the time of holding the court shall be on the second Monday after the fourth Monday in April, and first Monday after the fourth Monday in September. In the county of Scott, on Thursdays following the Mon- days for holding the courts in Clinton." The same act also provides as follows : " Sec. 3. The judge of said judicial district (the 2d) shall have power to adjourn the courts required to be held at the regular terms above named, and to hold special terms of court in lieu thereof ; and to hold special terms of court in any of the counties of said district whenever in his opinion the public interests may require it ; and for a like cause to adjourn the regular term for holding in any one county, and hold a special term of com't in lieu thereof in any other county of said district. " Sec. 4. Whenever a special term of court is held in any county of said district, it shall be in the power and duty of the judge of said district to provide for the trial of criminal, civil or chancery business, and to order pro- cess of all kinds to be returnable to said special term, and to require or dispense with the necessity of summon- ing grand and special jurors at such special terms, as in his opinion, the public good may require ; and in all such cases, the order of the judge calling such special court 566 SUPREME COURT CASES, Grable v. The State. shall specify tlie nature and character of the business to be transacted at said special term." The bill of exceptions shows that the verdict in the case was rendered hj the jury on the Thursday after the Mon- day on which, by appointment of law, the term com- menced in Clinton county, and the first day of the term for Scott county. That on the Friday following, a motion was made to arrest the judgment, whereupon the judge directed the clerk of the Clinton county court to make an entry upon the records of the com-t in said county, as of the day preceding, " That the district court of Scott county having been adjourned, this court proceeded with the business in Clinton." We think that the power exercised by the judge of the district court, in this instance, is not warranted by the statute, and might tend to great injustice, by prejudicing the legal rights of suitors. The powers conferred by this special statute are great enough, as expressly given, without extending them by implication still further, so as to dis- pense with well established principles of practice, which are essential to a just observance of the rights of parties in com't. Citizens are presumed to know the law of the land, and they are required to act, in the adjustment of their business, with a reference to its demands. The general law appointing the time and term for holding the court in Clinton county, fixes the time for the commence- ment of the term — on the second Monday after the fourth Monday in April, and first Monday after the fourth Mon- day in September; and the term is thereby ended on the Wednesdays succeeding those Mondays in each year : on the Thursdays immediately following, the court commences in Scott county. The act of January 22, 1848, vests the judge with power to adjourn the courts required to be held at the regular terms above named, and to hold special terms in lieu thereof; to hold special terms in the district, when in his opinion it becomes necessary for the public interests ; and for the like cause, to adjourn the regular term, in any one DUBUQUE, JULY, 1850. 567 Grable v. The State. coiiniy, and hold a special term in lieu thereof. The fourth section of this act, when such special term is held, makes it the duty of the judge to provide for the trial of criminal, civil and chancery business, to order process, &c., returnable to said term, &c. ; and in all such cases, the order of the judge calling the special court shall specify the nature and character of the business to be transacted at said special term. This statute, properly construed, certainly does not dispense with the usual notice to those interested, informing them that, instead of appearing for trial at the regular term of the court, they will be required to appear at the special one. It cannot be that, at the last hour of the last day of the term, as fixed by law, the judge is authorized, by an act of his own will, to deter- mine that the court in one county shall be continued in session for business so as to occupy the time set apart by the law of the land for holding the court in another county of the same district, in which he is appointed to preside. Such, we think, was not the intention of the legislature. Such a power is not expressly given. It will not be implied, for the manifest reason that surprise and con- sequent injustice might be done to parties litigant. Parties whose causes would not be reached in the order of trial on Wednesday evening, being the last day of the regular term, and who after nightfall would depart for their homes, satisfied of the fact that the term was ended, would be liable, by such a determination of the judge, suddenly made and carried into execution, to have their rights disposed of in their absence, without the presence of themselves or witnesses, and without a hearing. If the judge could in this way disregard the termination of the district court in Clinton county, and the commencemelit of the term in Scott county as fixed by law, in one case, he could in all. But the order of adjournment of the Scott county court was made on Friday, one day after the time fixed by law for holding it had commenced to run ; when this fact was presented as an objection to the proceeding in the cause, on the motion to arrest the judgment. The 568 SUPREME COURT CASES, Reed v. Murphy & Burke. adjournment of the court in Scott county was then ordered to he entered as of Thursday, the day previous, nunc pj^o tunc, and the motion overruled. We are of the opinion that this ruling of the court was clearly erroneous. From the constitution of our judicial system, it is apparent that the court cannot be held in two counties, in the same district, on the same day, by one and the same judge. The special statute empowers the judge of that district to adjourn the court in any county from the regular term to any other time, for the convenience of the public ; but it does not dispense with the proper order of procedure as to notice. The term in Clinton county having expired on Wednesday evening, and that in Scott having com- menced on Thursday, by operation of law, the judge could not, by the making of an order of adjournment nunc pro tunc, on Friday following, legalize the proceeding. See Archer v. Scott, 2 Scam., 303; Davis v. Fish, 1 G. G-reene, 406. The error assigned as to the form of the judgment and sentence thereon, though not in conformity with the law, need not be noticed, as the proceedings must be reversed. Judgment reversed. W. E. Leffingmell and E. Cook, for plaintiff in error. Flatt Smith, for the state. REED V. MURPHY & BURKE. The supreme court is not authorized to grant an injunction upon original petition ; but each judge of that court in liis separate capacity is em- powered to grant injunctions. In Equity. Appeal feom Jones Distkict Court. Opinion by Greene, J. In this case an injunction was granted by a judge of the supreme court. The writ DUBUQUE, JULY, 1850. 5^9 Reed c. Murphy & Burke. was made returnable to the district court of Jones county. On motion in tliat court, the injunction was dissolved, on the ground that the judge granting the same had no juris- diction in the case. To support this decision, the constitu tion of the state in defining the powers of the supreme court is relied upon. It provides that this court " shall have appellate jurisdiction only in all cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may by law prescribe. The supreme court may have power to issue all writs and process necessary to do justice to parties, and exercise a supervisory control over all inferior judicial tribunals, and the judges of the supreme com-t shall be conservators of the peace throughout the state." Art. 6, § 3. It is very clear that under this clause the supreme court has no original jurisdiction over any case ; that the powors of the com't are merely of an appellate and supervisory character, and do not extend to the allowance of an in- junction upon an original application ; but it does not therefoj'e follow that the judges of that court, in their separate capacity, may not be invested with authority which the constitution does not confer upon them as a court. When acting as a court the co-operation of at least two of the judges is necessary ; still, by the clause above quoted, the judges are individually authorized to be conservators of the peace, not as a court, but when detached from their court, as judges of the state. Separately, each judge may administer oaths, take acknowledgments, and do other original acts from which they are restrained in their collective capacity as a court. Severally, they may, by virtue of their office, and to the extent authorized by statute, act and decide originally upon an application ; but jointly, as a court, they can only act in an appellate and supervisory capacity. It is provided by statute, that " the several district courts, or any judge of the supreme com-t in vacation, may grant writs of injunction in cases allowed by the general ^OL. 11. , 37 570 SUPREME COURT CASES, Graft V. Diltz. usages of courts of equity." This by no rule of construc- tion can be regarded as in conflict with the constitution. As the injunction in this case was not aUowed by the supreme court, but by a judge of that com-t in vacation, we conchide that the court below erred in dissolving the injunction for that cause. Judgment reversed. P. Smit/i, for plaintiff in error. John P. Cook, for defendants. GRAFT V. DILTZ. In a case tried in the district court on appeal from a justice, it is error to receive notes in evidence tliat were not marked as filed by the justice, nor in any way identified by his transcript. Error to Jones District Court. Opinion hy Williams, C. J. This suit was commenced before a justice of the peace in Jones county. Judgment was entered against Graft the defendant by default, for $25.68, with interest and costs. Defendant took his ap- peal to the district court. The cause was tried at April term, 1850, and a verdict rendered for the plaintiff for $25, for which sum judgment was entered. On the trial in the district court, several exceptions were taken to the rulings of the judge, by the defendant, in which error is here assigned. There are four assignments of error, but as the plaintiff has relied on only one of these for a reversal of the judgment, it is not necessary that the others should be considered. This assignment is, that " the court erred in overruling the defendant's objection to the notes offered m evidence." The plaintiff below offered in evidence two promissory DUBUQUE, JULY, 1850. 571 Graft V. Diltz. notes, the one calling for $15.50, and the other for $8, signed by the defendant Graft. They were offered to prove and establish the plaintiff's cause of action. The defendant urged his objection to the notes as evidence, on the ground that they had not been marked as filed in the case by the justice, nor is there any statement of either of them in the certified record of the case. That there- fore they could not be ascertained as showing the same cause of action which was tried by the justice. This objection was overruled by the court, and the notes were read in evidence to the jury. This ruling, we think, was erroneous. In deciding this question, it is only necessary to turn to the statute enacted for the direction of justices on the subject, and it is easily adjusted. The intention of the legislature is manifest. Rev. Stat., 314, § 1, provides, " Every justice of the peace shall keep a docket, in which he shall enter a brief statement of the nature of the plain- tiff's demand, and the amount claimed; and if any set-off was pleaded, a similar statement of the set-off, and the amount claimed." Section 2, p. 315, is as follows : " The several items in the preceding section enumerated, together with all the other entries specially required by this act to be made in the docket, shall be entered under or opposite to the title of each cause to which they respectively relate, and in addition thereto, the justice may enter any other pro- ceedings had before him in the cause which he may think it useful to enter in such docket." Section 4 provides, that " in all cases to be tried before a justice of the peace, the plaintiff, when he commences his suit, shall set forth ^V^ writmg, and file with the jus- tice before the suit is placed upon the docket, or i)rocess issued thereon, a plain statement of his demand or cause of action." Here it is apjiarent that, for obvious reasons, it is made the duty of a justice of the peace to keep a docket, and enter therein, in each case, the nature of the plaintiff's demand, and the amount claimed. The second 572 SUPREME COURT CASES, Graft V. Diltz. section also refers to the subject matter of the entries, and treats of them as being specially required to be made in the docket. The fourth section requires in specific terms, that at the commencement of the suit, the plaintiff shall set forth in writing, andj^/e with the justice before the entry of the case, or the issuance of the process, a plain statement of his demand or cause of action. The statute, moreover, requires the district court upon an appeal, to try the same cause of action that was tried before the justice, and no other. Rev. Stat., 335, § 15. These pro- visions are express and conclusive, and dispose of the question at bar. There is no room for implication. The observance of them by the justice, in order to the proper legal procedure, is imperative ; without a compliance with them there would be nothing certain, by which the iden- tity of the cause of action before the justice, and that before the district court on the appeal, could be established. Some entry in tlie docket, and filing of a documentary statement of the demand, is necessary for the purpose of showing jurisdiction. If this were dispensed with, fraud and great injustice might be the result. A plaintiff might bring his suit before the justice for one demand, and upon failure to recover there, take his appeal, and on the trial in the district court resort to another, to sustain his action ; or the case might commence in the justice's court on a very small scale, and being appealed, by the time it would be brought forth for trial in the district court, it might assume great magnitude. The design of the statute is to secure identity, and prevent this oppressive expan- sion in litigation. In the case at bar, there is no mention made in the certified transcript of the justice's record of the notes whicli were offered in evidence ; nor is there any indorsement upon either of them, to shov>^ that they had been filed with the papers of the case when it was before the justice. There is no official recognition, or designa- tion of them by the justice, or otherwise, by which they could be identified as the cause of this action when before the justice. This being the state of the case, the district DUBUQUE, JULY, 1850. 573 Graft V. Diltz. court erred in permitting tliem to go to the jury to sustain the phiintiif's action. This court heretofore has decided where the transcript, as certified to the district court on appeal, contained an imperfect description of the instru- ment which was offered in evidence, to maintain tlie action ; but where the instrument itself was duly indorsed, with day and date, *' filed," and the signature of the justice officially annexed attesting it, that this was sufficient in identification of the cause of action. This, we think, was going quite far enough. It has been urged here, that the notes were found among the papers of the case in the dis- trict court, which had been sent up by the justice. This may be so, and still this fact cannot be substituted for those required by the statute. If this were all that might be required, the most ample opportunity would be afforded to practise the impositions and perpetrate the wrongs which the legislature intended to prevent. If the legis- lature had not guarded this matter by such particular and express provision, it would be necessary that some way should be adopted, in accordance with legal practice, by which, on appeal, the subject matter of the action, and the amount claimed, should be made to appear, to show the justice who tried the cause had acted within his jurisdic- tion. Although in view of the necessity that exists, in cases of this kind, to look with some indulgence uj)on proceedings had before justices of the peace, as to the manner and form in which entries required by law may be made, still we cannot approve of and justify an entire omission of a matter so vital to the administration of law and justice. Judgment reversed. P. ^ J. M. Smith, for plaintiff in error. J. P. Cook., for defendant. 574 SUPEEME COURT CASES, Reed v. Murphy. EEED V. MURPHY et al. Where a person contracted to receive a share of the profits in a business aa a compensation for services and rent of a building, with no other privi- lege, and none of the responsibilities of a partner, it was held that he was not a partner. Ereor to Jones District Court. Opinion by GtReene, J. Assumpsit by the firm of Mnrphy & Bm'k against Calvin C. Reed. Verdict and judgment for the plaintiffs. There is but one point urged in error which we deem worthy of consideration. On the trial Henry Mahan was admitted as a witness in behalf of the plaintiff. But it was claimed that he was interested as a partner with Murphy & Burk and therefore incom- petent. In support of that position, a contract was ad- duced in which Mahan agreed to rent his house, with the store fixtures, to Murphy & Burk for one year, in con- sideration of their paying him one dollar, and occupying the building for a store, and giving him one fourth of the profits, if any remained after deducting all the expenses of the establishment. And he also agreed to devote all his time and attention to the business of the plaintiffs. It appeared that Murphy & Burk purchased the goods and furnished the store on their own account ; that it was understood between them that Mahan was employed as agent, to be paid for his services out of a portion of the profits. The court charged the jury that this contract did not constitute a partnership between the plaintiffs and the witness. We think the court correctly instructed the jury that such a contract does not create a partnership. Mahan's connection with the business was not that of a partner ; he had no specific interest or control in the business such as a partner ordinarily enjoys ; no sliare of the profits as profits ; but merely in the event that profits accrued he should receive a certain portion of them as compensation DUBUQUE, JULY, 1850. 575 Davis V. Curtis. for services rendered as agent or clerk, and not as partner. This question was examined in Price ^ Co. v. Alexander ^ Co.* and under the views expressed in that case it is obvious that a person in business may employ another as agent or othei'wise, and agree to pay him a share of profits, if any shall arise, as a compensation for his services, without giving such person the rights, or subjecting him to tlie liabilities, of a partner. In Burckle v. Eckart, 1 Denio, 337, a mercantile firm employed a thii'd person to purchase and forward produce under orders of the firm, and have as a compensation for his services one fourth of the profits arising out of the purchase and sale of produce ; and it was held that the person thus employed was not a partner in that business even in respect to third parties. The authorities show many exceptions to the general rule that a communion of profits will make men partners and liable for losses ; and we think no exception is better re- conciled to the cases or more distinctly marked than the present. Judgment affirmed. John P. Cook, for plaintiff in error, Wilson ^ Smith, for defendants. DAVIS V. CURTIS. Where a case !■ taken to the district court by certiorari, and the judgment of the justice is reversed, it is error to order a trial de novo in the district court. Ereor to Jackson District Court. Opinion by Williams, C. J. This suit was commenced before a justice of the peace in Jackson county, by the * Anue, 427. 576 SUPREME COURT CASES, Davis V. Curtis. plaintiff Curtis on an account in assumpsit against I)avis. Judgment was entered by the justice in favor of the plaintiff for $15.50, with interest and costs, on the 20th of June, 1849. On the 7th of July of the same year, Davis the defendant sued out a certiorari under the provision of the statute, whereupon the cause was removed to the district court, and heard at May term, 1850. The judgment of the justice was there re- versed, and an order for a new trial in the district court, and the cause was continued for that purpose. The de- fendant Davis took exception to the action of the court by which a new trial in the district court was ordered. The only question for decision here is, whether, in a pro- ceeding under the certiorari laW of this state, the district court can, upon the reversal of the judgment of a justice of the peace, order the cause to a new trial before itself ? The act of the legislature regulating the writ of certio- rari, passed February 9, 1844, authorizes " any person who shall conceive himself injured by error in any process, proceeding, judgment or order, given by any justice of the peace, may remove such judgment to the district court for the same county, at any time within twenty days from the rendition of such judgment," by certiorari. The second section requires the apj^licant for the writ, his agent or attorney, to file in the office of the clerk of the district court for the proper county, an affidavit stating that in his belief there is error in such judgment, (setting forth the ground of error alleged ;) that the apj)lication is made in good faith; and requires him to make and execute a bond, with one or more sufficient sureties, to the oppo- site party, to be approved by the clerk," &c. It is made the duty of the clerk thereupon '^ to issue a writ oi certio- rari, commanding the justice who rendered such judgment to make return to the district court of his proceedings as to all the facts contained in such affidavit." The third section provides, that " on the service of writ of certiorari to reverse a judgment as aforesaid, it shall be the duty of the party serving the same, to deliver at the DUBUQUE, JULY, 1850. 577 Davis V. Curtis. same time to the justice a copy of the affidavit on which the certiorari was procured, &c. ; and the justice is required to file his return with the clerk of the district court within five days after the service of the writ." The fifth section is as follows : " The district court shall after hearing the case give judgment, as the right of the matter may appear, without regarding technical omis- sions, imperfections or defects, in the proceedings before the justice, which did not affect the merits ; and may afr.iin or reverse the judgment in whole or in part, and may issue execution as upon other judgments rendered before said court." Rev. Stat., art. 9, p. 336. We have set forth the substance of the enactment on the subject of certiorari^ so far as the same can be con- sidered as affecting the question before us. As some diversity of opinion in relation to the powers and duties of the district court, in its procedure under this law, has hitherto existed, we will endeavor to establish the practice, by giving it a construction which will operate in consistency with jurisprudence and the design of the leo-islature. The justices' act, art. 8, in relation to " appeals and proceedings thereon in the district court," provides that " any person aggrieved by any judgment or decision of a justice of the peace, may, in person or by his agent, make his appeal therefrom to the district court of the same county where the judgment was rendered, or the decision made." Rev. Stat., p. 333. This act requires the appeal to be made within twenty days after the decision. The seventh section clearly con- templates and provides for a full trial de novo in the dis- trict court upon the merits. It is as follows : " Upon the return of the justice being filed in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice." t;Here then the legislature have, in the most ample pro- 578 SUPREME COURT CASES, Davis V. Curtis. vision by appeal, afforded to a party who may be aggrieved by the judgment of a justice, an opportunity for redress in the district court, by a trial anew on the merits of his case. This provision, and that for the writ of certiorari, stand as articles 8 and 9 of the same act. The article on appeals precedes the other in the arrangement of the law. Being each a part of the same act, it can hardly be presumed that two separate provisions would thus be made to have the same effect, and for the same purpose. Reason, we think, dictates that each was in- tended for a distinct purpose, in order to different pro- cedure, and judgment in the district court.. The pro- visions of the certiorari law forbid the conclusion tliat it was intended to operate as an appeal on the merits, to be tried de novo in the district court. If such were the inten- tion of the legislature, why not provide for the hearing of the testimony of the case at the first term to which the writ is made returnable, and thus supersede the necessity of the delay by a continuance of the cause to another term of the court in case of a reversal, as in the case at bar? These considerations, with others on the score of great inconvenience and vexation to the parties, as well as the public, tend strongly to negative the idea that this proceeding should operate so as to try the right of the matter in controversy between the parties as upon appeal. But strong as these considerations may be, we are not under the necessity of relying upon them alone for a construction of this enactment, as to the powers and duties of the district court under it. We think the fifth section above quoted is sufficiently explicit in prescribing the mode of procedure for the district court. After hear- ing the case, the court is required to " give judgment as the rigid of the matter may appear, without regarding tech- nical omissions, imperfections or defects in the i)roceed- ings before the justice, nhich did not affect the merits, and may o^rwi cr rit was adjudged that the legislative divorces a vinculo for causes, were con- stitutional and valid. Under these authorities, we must conclude that the legislative divorce obtained by Sleator is constitutional. 2. The remaining point to be considered is, Does this legislative divorce bar the right of dower ? It is obvious that a divorce au1:horized by the legislature has all the validity and force of one decreed by a court. The divorce terminated the relation of husband and wife; consequently A. E. Sleator, at the death of David Sleator, could claim no benefit from his estate from that relation. She was not his wife ; in that particular she was legally dead, and conse- quently could acquire no dower in his land upon his demise. After the divorce, D. Sleator may have married a second wife ; and if she had survived him as his wife, her right of dower to his real estate could not be questioned. It will hardly be claimed that there could be two rights of dower in the same estate. It matters not whether the divorce is legislative or judi- cial, the same consequences and forfeiture must ensue from either. As this point is vii-tually conceded in the argument, it is unnecessary to enlarge upon it. We are of the opinion that the court below erred in not admitting the legislative divorce as a bar to the action. Judgment reversed. P. Smith and B. M. Samuels, for plaintiff in erroj*. W. J. Barney^ T, Rogers, S. Hempsted and James Burt, for defendant. Note.— other cases decided in 1850, Imt in which opinions were subse- quently delivered, will appear in the fliird volume. INDEX. A ACCORD AND SATISFACTION. 1. E and J executed their partnership note to F ; before the note became due E and J dissolved partnership, and it was agreed that E shouW take the goods and credits, and pay the debts of the firm. F approved the arrangement, and promised to re- turn the partnership note, and take in satisfaction the individual note of E, and give J a receipt ; but the old note was not given up, nor was a new note or receipt given. F sued E and J, but obtained service and judgment oaly against E, who was afterwards discharged from the juda;- ment by a decree in bankruptcy ; afterward proceedings were com- menced by scire facias against J, to make him a party to the judg- ment : held that the agreement between the parties did not show a release to J, or an accord and satis- faction ; that it was only an execu- tory agreement. Frentress v. JLfu?-- kle, 553 2. A release is an executed contract, and must be under seal, . ib. 3. An accord not executed is no bar to an action, .... ib. 4. An accord and satisfaction, to con- stitute a legal bar to an action, must be full, perfect and complete, ib. 5. In order to have a promise operate as a satisfaction, it must be that of a third person ; something over and above the original promise or indebtedness, . , ib. ACCOUNT. 1. An item in an account, designated as a "cash balance on settlement, S50, " is sufficiently specific. Cham- bers V. Games, . . .320 ACTION OF RIGHT. 1. The "act to allow and regulate the action of riglit," provides a remedy to recover the possession of land, and also a remedy to determine the title. Kerr \. Leighton, . 196 2. To enable the plaintiff to recover in an action of right', it should appear that the defendant acted as owner, landlord or tenant of the property claimed ; and if as tenant, that he was in possession, . ib. 3. Where the defendant pleads to an action of right, in the form pro- vided by statute, he virtually admits himself in possession. As possession is not denied hy such a plea, it need not be proved, ib. 4. If plaintiff seeks to rt-cover more than nominal damages for with- holding the premises in an action of right, proof of the time and cir- cumstances becomes essential, ib. 5. In an action of right, the jury re" turned a verdict, " We find tlia plaintiff entitled to no part of lot, &c., at this time, but is entitled to §;i2.50 damages ; and that the defendant is entitled to and took possession of the lot under color of title :" held that on such a verdict a judgment might be rendered, 612 INDEX. and that the plaintiff might recover upon a less title than that set forth iu the declaration, Olive v. JJaugherty, . . . .393 ADMISSION. 1. An admission by way of demurrer to a plea, in which the facts are alleged, is just as available as though the admission had been made ore tenus before a jury. Coffin V. Knott, . . .682 AFFIDAVITS. Bu JUBOBS, 1. AGENT. See Notice, 9. AGREEMENT. 1. Plaintiff agreed to do work for defendant, and take land for pay- ment. Defendant contracted to make a good title to the land, on the performance of the work, but the title was not in him : held that plaintiff was at liberty to rescind the contract, and was not obliged to do the work, and that if he did the work, he was entitled to pay- ment as on a cash contract to do work. Fitch v. Casey, . 300 2. Where a grantor reserves a house, rails, &c., which were on a strip ten rods wide and one hundred and sixty rods long, on the west side of the quarter section of land sold, but tlie house, &c., were afterwards found to be a short distance east of tlie ten rod strip, it was held that the grantor was entitled to the house. Gavcny v. Hinton, . 344 3. Course and distance should yield to natural and artificial objects, which are made part of the de- scription of land, . . . ib. 4. In construing contracts, that which is most natural and certain, and most conformable to the intention of the parties, should prevail, ib. 5. In an action upon an agreement, with mutual and dependent condi- tions, the plaintiff, to sustain his demand, must account for all he undertook under the agreement, and the defendant, to sustain his set-off, must estabUsb each item of his demand by proof. Springer v. Stewart, .... 390 6. A written agreement between D and F, stipulated that D should fur- nish certain kinds of goods at 25 per cent., and other kinds at 10 per cent, advance, and concluded with the stipulation : " All goods billed at 25 per cent, payable in six months, at 10 per cent, in four months, by adding 10 per cent, interest :" held that the interest should be charged on the goods furnished at 25 per cent, as well as on those furnished at 10. Davis V. Fish, .... 447 7. An agreement stipulated that the defendant should build a house in a certain manner, and have it com- pleted on or before the 1st day of March, 1845, for which the plaintiff paid $400 down, and was to pay $t)00 on the said 1st day of March. In an action on the agreement for failing to complete the house within the time and in the manner speci- fied, the declaration averred, that the plaintiff" was ready and prepared to pay according to the effect of the agreement : held that the de- claration was good without alleging the payment, or an offer to yay the $600. Lucas v. Snyder, 4!'b See Accord and Satisfaction,!, Equity, 5. Husband and Wife, 4, 5, 6. Land, 2, 3, 4, Specific Performance, 1. AMENDMENT. See Bond, 3. APPEAL. See Jurisdiction, 8. Justice of the Peace, 7, 11. Practice, 13, 14, 24. APPEARANCE. 1." Where a party before a justice of the peace moves for a continuance of the cause and for a change of INDEX. 613 venue before objecting to the sum- mons, such acts will amount to a general appearance, which cures all defects iu the form and service of process. Shaffer v. Trimble, 464 See Forcible Entry and De- tainer, 1. Jurisdiction, 8, 9. Writs, 1. ATTACHMENT. 1. An attachment is vacated by a judgment of nonsuit against the plaintiff. Brown v. Harris, 505 2. Where a nonsuit is set aside, and a new trial granted, the attachment lien vacated by the nonsuit is not revived, .... ib. 3. If the plaintiff in an attachment suit before a justice of the peace recovers a judgment for less than $5, it does not follow that he is liable on the attachment bond. Bradley v. McCall, » .214 4. In an attachment suit before a justice, the demand cannot be less than %5, but the judgment may, ib. 6. In a suit commenced by attach- ment, a general judgment was rendered, and upon it a special execution issued, on which the \)to- perty attached was sold • held that the sale was vaJid. Corriell v. Doolittle, . . . .385 6. An attachment will hold all chat- tels, moneys or evidences of debt, or any interest which the debtor may have in them. Robinson v. Moriarty, . . . .497 7. The second section of the attach- ment act, which authorizes an issue and jury trial of the facts upon which the attachment issued, is not repealed by the amendatory act of 18i6. Letois v. Satliff, . 186 ATTESTATION. 1. Where the certificate of a j iJ^-* is not dated, but is preceded and fol- lowed by certificates of the clerk, the first dated on the 18th, and the other on the 31st of July, the defect is cured. Lewis v. Sutliff, 186 2. In a writ under seal, the seal should be named or referred to in the attestation. Rif/ffs v. Bagley, 383 Sec Evidence, 4. ATTORNEY. 1. Where an attorney is appointed by the court to defend a pauper prisoner, the county is liable for his fees. Hall v. Washinyton Co., 473 2. Whicker v. Cedar Co., 1 G. Greene, 217, overruled, . . . ib. 3. The supreme court is not authorized to grant a lien upon a judgment for an attorney's fees, as it would be an exercise of original jurisdiction. Preston v. Daniels, . . 536 See Equity, 1, 2. Judge, 1, 2. Practice, 16. AWARD. 1. Affidavits may be admitted in sup- port of a motion to recommit an award to arbitrators, and if no objection was raised to the affidavit in the district court, none will be entertained in the supreme court. Depew v. Davis, . . . 260 2. An award may be recommitted under the statute, where a legal and sufficient reason is given. A reason that will justify an arrest of judgment, or a new trial, will justify a recommitment, . ib. 3. An award should not be rejected unless a want of jurisdiction is apparent in the arbitration, ib. 4. An award may be recommitted on the ground of newly discovered evidence, ....»&. B BANKRUPTCY. A "Ifcree in bankruptcy, under the geaeral law of Congress, ordered by a court of competent general jurisdiction, cannot be collaterally drawn in question. WriylU v. Watkins, . . .547 , The territorial district courts were invested witli full power to adju- dicate causes in bankruptcy, ib. See Pleadings, 17. 614 INDEX. BASTARDY. 1. A proceeding against the father for the support of his illegitimate child is not in the nature of a criminal action, and therefore under the constitution the defendant is exempt from imprisonment; and that portion of the bastardy act which authorized such imprison- ment is repealed by the constitu- tion. Holmes v. The State, . 601 BILL OF PARTICULARS, 1. Where a bill of particulars is as definite as the nature of the trans- action will permit, it is sufficient. Mix V. Ely, .... 513 2. In an action on a piomissory note, where a copy of it is filed with the declaration, no other bill of parti- culars is required. Galloway v. Trout, 593 See Mechanics' Lien, 2. Set-off, 4. BOND. 1. An instrument not under seal is not a bond. Steamboat " Lake of the Woods" V. Shaw, , . 91 2. An instrument with all the other requisites of a bond, is not one unless signed and sealed by the parties making it. Ciuidlcback v. Parks, 148 3. A recognizance cannot, after an appeal, lie converted into a bond by amendment, . . . ib. i. Where the execution returns stale "no property found," it is suffi- cient to justify an action on a replevin bond under the statute requiring a return, " tliat sufficient property of the plaintiifs cannot be found," &c. Cameron v. Boyle, 154 See Pleadings, 12. Practice, 39, 42. c CAPIAS. 1. By the statute of 1844, all laws were repealed which authorized the issuing of a capias and holding to bail in civil suits. Westbrook V. Westbrook, . . .598 2. A petition for alimony is in the nature of a civil proceeding, in which a capias and holding to bail are not authorized, . . ib. 3. Where a capias is improperly sued out, it cannot be held good as a summons, .... ib. CERTIORARL 1. In a case taken to the district court by certiorari an affirmance or a new- judgment maybe rendered "as the right of the matter may appear." Wright V. Phillips, . .191 2. Where a case is taken to the dis- trict court by certiorari, and the judgment of the justice is reversed, it is error to order a trial de novo in the district court. Davis v. Cur/is, 575 3. A judgment cannot summarily he rendered against a surety in a case taken to the di'^trict court by co-ti- orari, as it may be in cases taken up by appeal. Smith v. Bissell, 379 See Practice, 15. CHANGE OF VENUE. 1. Application for a change of venue may be made to a justice of the peace at any time after the appear- ance of parties, and before the jury is sworn, or the trial submitted to the justice. Lyne v. Hoyle, 135 2. Where a petition for a change of venue sets forth the requisite facts, verified by the affidavit of the party, it is the duty of the judge to grant the change to the nearest county, without any further jjroof or in- quiry. Cass V. State, . 353 3. The statute of 1845 requires, in criminal cases, the facts stated in the petition to be verified by the affidavit of at least two respectable witnesses, .... ib. 4. If a party complies with the stat- ute, in his application for a change of venue, the court has no discre- tion to refuse, but should grant the change to the nearest county not made objectionable by the petition, without requiring any other testi- INDBX. 615 mony than the petition and affi- davit, .... ib. CLERKS. See Election, 2. F££B. COMMON LAW. 1. A rule of common law is not re- pealed by implication. Ooodmn T. Thompson, . . . 829 CONSTRUCTION. See Agreement, 47. Statute, 5, 6, 7, 8. CONTINUANCE. See Pbaotice, 16. CONTRACT. See AOBEEMENT. CONVEYANCE. I, Under the Michigan statute of 1827, in relation to conveyances, an unrecorded deed cannot prevail against a subsequent purchaser, who had his deed recorded iirst. Hopping V. Barnam, . . 39 2» Under the registry law of 1840 no conveyance is valid except between the parties thereto and such as have had actual notice thereof, until it is deposited for record, . . ib. 3. Deeds executed before the registry act of 1840, should be recorded under it, the sauie as deeds exe- cuted subsequent to the passage of the law, .... ib. 4. A deed for land first filed for re- cord, though subsequently dated, will prevail, . . . ib. See Covenants. Dbbd. CORPORATIONS. 1. All acts of incorporation are made public, and as such may be given in evidence. Such an act creates the presumption that the corpora- tion dii-s exist de facto. Durham V. Daniels, .... 618 COSTS. Counties are liable for costs in criminal cases, in which nolle prose- qui are entered, or in which indict- ments are quashed, or demurrers to them are sustained. Bonney V. Van Buren Co., . . 230 COUNTY ORDERS. . An action may be maintained against the commissioners of a county, on a general unconditional order drawn by them for the pay- ment of money. Steel v. Davis Co., 469 . The rule that an order must be presented for payment within a reasonable time, and notice of its dishonor given to the drawer, is not applicable to county orders, . ib. COURTS. 1. It is the right and duty of the ju- dicial power in the state to declare all acts of the legislature made in violation of the constitution to be void. Reid v. Wright, . 15 2. The act of 1839, authorizing dis- trict judges to hold special terms of court whenever they deem it necessary, was not repealed by subsequent acts passed to fix and change the time for holding court. The eighth section of said act is not repugnant to the organic law nor to tUe state constitution of Iowa, flarriman v. State, . 270 3. Notice of a special term, as directed by the act of 1S39, is not an essential prerequisite to confer jurisdiction. The statute providing for the notice is directory. It will be presumed that the notice was given, even if the record does not state the fact, ib. 4. A decision of the territorial su- preme court will not be overruled unless palpal ily erroneous. Ilildreth V. Tomlinson. . . . 36() 5. The act of the legislature creating 616 INDEX. two jury districts, and appointing two different places to hold the dis- trict court in Lee county, is not iinconstitutional. Kinney, J., con- tra. Trimble v. State, . 404 6. Nothing should be presumed againBt the authority or proceed- ings of a court of general jurisdic- tion. Wright v. Watkins, . 547 7. It is error to receive a verdict and render a judgment after the term of a court, as designated by law, has expired, and on a day fixed for a term of court in another county. Orable v. State, . . .659 8. Where a term of court is appointed by law to be held in Clinton county on Monday, and in Scott county on the following Thursday, the term in Clinton county ends on Wednes- day evening, . . , ib. 9. Explains power of the district judge to appoint special terms of court ; reasonable notice must be given, ib. 10. Two terms of the district court cannot be held in one district on the same day, . . . ib. See Cektiokari. Fraud, 2. JnDGE. Jurisdiction, COVENANT. 1. If A covenants to make B a good and sufficient deed, B is not obliged to take the deed, unless A has a good and indefeasible estate in the land covenanted to be conveyed. Fitch V. Casey, . . . 300 2. Dependent and independent cove- nants explained, . . . ib. See FLEADmo, 10. D DAMAGE. Su Action of Right, 45. Prairie Firb. Pbaotioe, 17, 22, 39,40, 42. DEBT. See PLBASiKa, 1, 16. DECISION. See Courts, 4. DECLARATION. See Plbadino. DECREE. See Bai^£buptot, 1. DEED. . A tax deed is not good which con- veys more land than was assessed or advertised for the taxes. Fitch V. Casey, . . . .300 . Under the statute, a special cove- nant at the end of a deed, in which the grantor warrants against all claims from or under him, does not limit or explain the more general warranties which are covenanted by the Wf)rds, " grant, bargain and Bell." Brown v. Tomlinson, 525 . A restraint by implication upon such general warranties is not au- thorized by statute ; it must ba positive and expressed, . ib. See CONVEYANOB. Covenant. Equity, 4. DEFAULT. See Error, 5. Practice, 23, 20. DELIVERY. 1. Where no place is appointed for the delivery of specific articles, the debtor must, before the day of pay- ment, ascertain from the creditor, if practicable, where he will receive the goods. Phillips v. Cooley, 456 See Tender. DEMURRER. See Pleadinq. Pbaotiob, 1, 2, Z, 97> INDF.X.. 617 DEPOSIT. See Garnishment, 6. Partnkkship, 7. DEPOSITION. 1. Where depositions are taken by the procurement and for the benefit of a prisoner, and are not read to the jury by his coniisel, they may be read by counsel for the state, if they were filed and properly in the custody of the court, Nash v. State 286 DETINUE. 1. The action of detinue will lie in Iowa, and may be maintained for a pistol, or any other chattel that may be so identified as to be recovered in specie. Wnyht v. Ross, . 266 2. A statement before a justice of the peace is sufficiently specific in det- inue, which describes the property as " a six barreled pistol, called a sis shooter or revolver," . . ib. DESCRIPTION. 'X, A defective description of land in a levy is cured by a con-ect descrip- tion in the sheriff's deed, when it shows that the land conveyed is the same on which the levy has been made. See Agreement, 2, 3. Mortgage. DIVORCE. 1. A divorce granted by the Iowa ter- ritorial legi.slature is good, if it does not appear to have been granted for causes ovei- which the district courts have jurisdiction : and such divorce will bar the right of dower as effectually as if the divorce had been decreed by a court. Levins V. Sltator, . . . .604 DOWER. See Divorce. Vol. II E ELECTIONS. 1. The election in August, 1848, was the second gener , election under the constitution. State v. Gadle, 400. 2. Clerks of the district court and prosecuting attorneys should be biennially elected at the general elections, .... ib. ELISOR. See Sheeiff. EQUITY. 1. If the attorney of a party by fraud- ulent representations procure his opponent's defeat in court, or if an attorney appear and act for a party without his knowledge or authority, the party injured may be relieved in a court of equity, on the ground of fraud. De Louis v. Meeh, 55 2. If, in a compromise partition, the petitionei-s or their attorneys act fraudulently by misrepresentation or concealment, the party injured is entitled to relief in equity, ib. 3. Equity will afford relief to those who are indirectly injured by offi- cial fraud or misconduct, as well as to those who are directly injured by such fraud. Austin v. Car- penter, .... 131 4. In equity, mistakes in a deed will be corrected, as against subsequent purchasers with notice. Warburton V. Lauman, .... 420 5. Altliough contracts cannot be changed, they may be corrected so as to enfoi'ce the intention of the parties, .... ib. 6. Where funds collected by a sheriff on/, fa. were demanded by D and N, and also by P and H, and each party showed an equal right to them, it was held D and N had not a plain and adequate remedy at law, and that they might proceed in eciuity. Preston v. Daniels, 536 7. Where from any defect in the com- mon law, want of foresight in the parties, or other mistake or acci- dent, there would be a failure of 40 61S INDEX. justice, it is the duty of a court of equit}' to interfere and supply the defect or furnish the remedy, ib. See Fraud, 2, 3. Husband and Wife, 5. jukisdiction, 1, 4, 5. Pleading, 1, 2, 3, 4, 5. Specific Performance. ERROR. 1. It is not error to preclude an an- swer to irrelevant or immaterial evidence. Hopping v. Burnam, 39 2. The neglect of the court to render a judgment non, obstante veredicto, on the ground of an insufficient plea, cannot be urged as error, unless a motion was made for such a judg- ment, and exception taken to the ruling of the court. Coonrod v. Benson, . . . .179 3. It is not error to exclude imma- terial testimony. Bradley v. Ken- nedy 231 4. Errors will not be favorably re- garded which are based upon the negligence of the party assigning them. Mears v. Garretson, . 316 6. It is error to render judgment by default against a party, unless he was legally served with process. Diltz V. Chambers, . . 479 6. After the death of a party is sug- gested, it is error to render judg- ment against him. Nelson v. Gray, 397 See Courts, 7. Replevin, 1. ESTATE. 1. No suit should be brought against an estate upon a claim for less than $25, until the claim has been pre- sented, as required by statute, to the representative of the estate, and payment refused. Galloway v. Trout, 595 See Evidence, 7. Mechanics' Lien, 7, 8. EVIDENCE. 1 . ^documentary. 1. A pre-emption certificate not evi- dence of legal title, Arnold' Grimes, . . . .77 2. In an action for libel, where M published that R was a defaulter, a mortgage executed by R to the United States, and the record of foreclosure, are admissible as evi- dence of R's indebtedness to the government. Roberts v. Miller, 122 3. Any action by Congress or the de- partments of government, subse- quent to the libelous publication, not admissible as rebutting evi- dence, . . . . . ib. 4. The certificate of a judge, that tlie transcript of a record is attested in due form, is authentic evidence of its correctness. Lewis v. Sutliff, isr, 5. A duplicate receipt or certificate from the receiver or register of a land office, is made by statute prima facie evidence of title in actions of trespass, right, &c. Bur- lerson v. Teeple, . . . 542 2. Miscellaneous. 6. Evidence of fraud, covin, or ille- gality of consideration, is not allow- able as defence under the plea of non est Jactum. Chambers v. Games. 320 7. In a trial before a probate court, to charge an estate with an old judo-- ment which is claimed to have been satisfied by a levy of property, proof is admissible to show that one of the' defendants in the judgment was a securit}', and that the principal be- came insolvent after his property was levied upon to satisfy the judg- ment. Lucas V. Cassady, . 208 8. In an action of trespass for de- bauching plaintiff's daughter, if hus did not actually connive at the guilty intercourse, evidence of loss occasioned by it will justify a re- covery. Proof of careless indiffer- ence could only go in mitigation of damages. Zerfing v. Mourer, 520 9. To sustain the plea of justification to an action of slander, the testi- mony of more than one witness, or of one witness and strong corrobo- rating circumstances, are necessary. Bradley v. Kennedy, . . 231 See Corporations. Error, 1, 3. New Trial, 4, 6. Paktnersuip, 3. JNDEX. (iiU 8l Parole. 10. To establish a plea of want of oousideratiou, parole evidence is admissible to show that a promis- sory note was given for a patent right to make fanning mills, and that fanning mills made after the model of the right were worthless. ScoU V. Siveet, . . .224 11. When a note is so written that it is impossible to tell whether it is dated Jan. or Jun., parole evidence may be admitted to determine the true date ; and the fact should be referred to the jury for determina- tion. Jefferson Co. v. Savory, 288 4. Prima Facie. See Husband and Wrra, 6. Partnership, 2. Settleuent. 5. Presumptive. See Courts, 6. Fraud, 3. Part:{£rshif, 8. Wills, 1. EXECUTION. , OflBcere of court, or witnesses to whom fees are due, have not the power to order execution on a judg- ment owned by another. Hamp- ton, ex parte, . . . 137 See Attachment, 5. Levy. Sheriff's Retubn, 1. FEES. 1. Clerks of the district court are en- titled to fees before losing control of their service. Dickerson v. Shel- by, 460 2. Fees for making out a transcript, may be required before the case ia docketed in the supreme court, ib. See Attorney. Execution. FELONY. See Jurors. 9. FENCE, . A fence built upon public land, even by mistake, passes with the freehold to the purchaser from the government ; and if such fence is detached from the realty by a wrong-doer, the purchaser's right to it is not divested. Burlerson v. Teeple, . . . .542 FORCIBLE ENTRY AND DETAINER. 1. In an action of forcible entry and detainer, an appeal bond is neces- sary as a condition precedent to an appeal. Cuddht'Ock v. Parks, 148 2. In an action of forcible entry and detainer, proof that the party in possession was frightened by threats or other circumstances to yield his possession to the defendant, is suffi- cient to show that the entry wiis forcible. Earmw v. Baker, 201 3. Threats that induce fear of forcible entry and ouster, without fear of personal violence, are sufficient to establish a forcible entry, . ib. See Justice of Peace, 3. Unlawful Detaimeb. FRAUD. . Fraud vitiates the most important judicial acts. De Louis v. Meek, 55 . As a general rule, courts of law and of chancery have concurrent juris- diction in matters of fraud. Still in many cases chancery will afiford relief against fraud, which cannot lie remedied at law. Arnold v. Grimes, .... 77 . A t law fraud must be proved ; in equity it may be presumed, . ib. . A patent for land from the United States cannot generally be im- peached at law for fraud, . ib. , If fraud appears upon the face of a patent, it is rendered void at law ; but when fraud or other delect arises deliors the grant, it is void- able only by suit in chancery, ib. 620 INDEX. See Equity, 1, 2, 3. Jurisdiction, 1. Pleading, 1, 2, 3, 4. G GARNISHMENT. 1. One of two joint obligators not liable in a proceeding of garnish- ment. Wilson V. Albright, . 125 2. Judgment cannot be rendered against a garnishee upon his lia- bility before it becomes due, ib. 8. Garnishee under no greater liabi- lity to his garnishor than he would be to his creditor, . . ib. 4. A garnishee holding a note for col- lection is not liable as holder of the note, nor on the receipt he gave for tbe note, without a j)revious demand and a refusal to deliver up the note and. the amount collected on the note, . . . ib. 5. Judgment cannot be rendered against a garnishee unless he ac- knowledge an indebtedness, . ib. 6. C was garnisheed in an attach- ment suit against M, and in his answer it ajipeared tliat he had collected funds belonging equally to B and M ; that both of them claimed the whole amount, but as they had assigned the claim to him, and he believed the assignment vested in him the money, he divided the amount equally in two pack- ages, placing each by itself ; that he had paid to B his half, who at the same time demanded the other half, which he held subject to the order of M ; held that the funds remaining in Cs hands were sub- ject to the paj-ment of M's debts. Harlan v. Monarty, . . 486 GRAND JURY. See Indictment, 6, 6. H HALF-BREED TRACT. 1. By an act of Congress, approved June 30, 1834, the qualified inter- est held by the half-breeds of the Sac and Fox Indians to the half- breed tract in Lee county, was con- verted into an absolute estate. Wriffhf V. Marsh, . . 94 2. Since the act of Congress of 1834, the half breed lands in Lee county have been subject to the laws and courts of Iowa, to the same extent as other lands owned bj' indivi- duals, ..... ih. 3. The conclusive effect of the judg- ment of partition of the half-breed lands, as established by Wright v. Marsh, Lee d: Delevan. Barney v. Chittenden, . . . .165 4. A majority of the trustees under the articles of association, of the New York Company, have power to convey the title of said company to lands in the " half-breed tract," and the conveyance may be made by themselves, or by their attorney, ib. HUSBAND AND WIFE. 1. A father cannot recover damages against a person for procuring the marriage of his daughter, who in good faith and without force or im- position, entered into a marriage contract between twelve and four- teen years of age. GoodvAn v. Thompson, .... 329 2. The statvite which provides that male persons of the age of eighteen years, and female persons of the age of fourteen years, maybe joined in marriage, is merely cumulative, and does not abrogate the common law rule, which fixes the age of marriage consent for males at four- teen and for females at twelve years of age, . . . ib. 3. The right of a husband over his wife is paramount to that of her parent, . . , . ih. 4. Where the husband and wife jointly contract for the erection of a building on the land of the wife, a mechanics' lien under the statute may be enforced against the pro- perty. Greenough v. Wigginton. 435 5. Law and equity act in concert, sa far as general personal engage- ments of man and woman are con- cerned, .... ib. 6. Generally a debt contracted by a woman during coverture is prima facie evidence to charge her sepa- rate estate. . . . ib. INDEX. GZl INDICTMENT. 1. An indictment is good which sub- Btautially follows the language of the statute defining the offence. Buckley v. State, . . 162 2. Not necessary that the indictment should charge the offence in the very language of the statute, if words of the same import and equally comprehensive are used, ih. 8. The name of the person to whom counterfeit money was passed should be set forth with certainty in the indictment, unless the name is unknown, and if so, that fact should be stated, . . . ih. 4. " State of Iowa " and " The State of Iowa " are substantially synony- mous terms. Harriman v. State, 271 6. Where an indictment appears to have been exhibited in open court, by the grand jur\-, aud is indorsed " a true bill " over the signature of the foreman, it is conclusive evi- dence that it was duly found by a legal grand jur}', . . ih. 6. The names of the witnesses on whose evidence an indictment is fo\ind, should be indorsed on every true bill returned by the grand jury ; but they need not be made a part of the record, . . ih. 7. An indictment is good which clearly states all the facts necessary to constitute the crime of murder under the statute. Nash v. State, 2S6 8. An indictment need only state such facts as are required to be proved, .... ih. 9. An indictment upon a statute should state, substantially, if not in the very language of the law, all the circutnstaiices which constitute the definition of the offence in the act. Statf V. Chamhers, . 302 10. An indictinent is good which fol- lows the words of the statute on which it is founded, . . ih. INJUNCTION. 1. The supreme court is not author- ized to giant an injunction upon • original petition ; but each judge of that court in his separate capa- city is empowered to grant injunc- tions. Meed V. Murphy, . 568 INSTRUCTION, ^ee Practice, 28, 34. INTEREST. 1. Only that portion of a contract ia void which promises more interest than is authorized by the interest law of 1839. Richards v. Marsh- man, 217 2. On a note made under that law to draw 33 per cent, interest, 20 per cent, interest can be enforced, ib. JUDGE. 1. A judge cannot act as attorney in a case jjeudiug before him. Wright V. Boon, .... 458 2. When a case comes before a judge in which he has been engaged as attornej', he should order a change of venue, . . . . ih. 3. A judge cannot delegate his power to another, nor can a person l)o au- thorized to act as judge by agree- ment of the parties to a suit, ib. See Courts. JUDGMENTS. 1. Void judgments are never binding, but judgments merely voidable may bo enforced until reversed by a superior authority. Reid v. Wriyht, .... 15 2. Judgments from courts of general jurisdictioti cannot be collaterally - impeached, unless absolutely void upon their face, . . . ib. 3. Where the record of a final judg- ment shows that the subject matter and the parties were properly before the court, the judgment becomes conclusive, and cannot lie coUatcr- allv impeached. Wright v. Man^h. et III., . . . \ . yj 4. No person V>ut the party in whose (522 INDEX. favor a judgment is rendered, his agent or attorney of record, can con- trol or order process to enforce the judgment. Hampton, ex parte, 137 5. The judgment of a court of compe- tent and general jurisdiction cannot be collaterally assailed. Kerr v. Lcif/hton, . . . .196 6. N\' here a power of attorney author- izes a judgment to be confessed for "an amount that may be found due " on the note therein described, and is in sufficient form, in all other particulars, to give the court jurisdiction over the subject matter anil the parties, it gives sufficient authority to confess a judgment which cannot be collaterally im- peached for mere irregularity. Pat- terson v . State of Indiana, . 492 7. Tht^ judgment of a court having jurisdiction of the parties, and the feubject matter, is conclusive so long as it remains unreversed, . ib. 8. Where a judgment has been assign- ed, it is not necessary to make the assignee a party by scire facias, to enable him to sue out an execution in the name of the party who re- covered judgment. Corriell v. Doo- little 385 See Erroe, 2, 6. Practice, 35, 42. Statute, 3. JURISDICTION. 1. Courts of law and of chancery have concurrent jurisdiction in matters of fraud. De Louis v. Meek, 55 2. The Iowa territorial district courts were not of inferior jurisdiction. They were invested with the same jurisdiction of a federal character as the circuit and district courts of the United States, and also the general common law jurisdiction usually imparted to state courts of record. Wright v. Marsh, . 94 8. If the district court in partition proceedings was only authorized to act under the special authority conferred by statute, the jurisdic- tion would be quoad hoc limited and inferior, . . . ib.. 4. Courts of equity may exercise gen- eral concurrent jurisdiction with courts of law in all partition cases at common law, . . . ib. ' 5. The territorial district courts, in dependent of the partition act, had general jurisdiction of partition proceedings both at law and in equity, .... ib. 6. The jurisdiction of a court can be taken away only by express words, ib. 7. In a court of general jurisdiction, authority will be presumed until tlie contrary clearly appears, . ib. 8. Where, on an appeal to the district court from the judgment of a justice of the peace, it appeared that no judgment was entered by the jus- tice on the verdict of the jury : held that the district court had no juris- diction of the cause ; and that even the appearance of the parties in the supposed appeal in the district court could not coufer jurisdiction over the invalid proceedings of the justice. Kimble v. Riggin, . 245 9. Appearance will not coufer juris- diction over parties not residing within the jurisdiction of the coiu't, nor subject to its process. Chapj- man v. Morgan, . . .374 10. Consent of a party cannot confer a greater authority upon a court than the law affords, . . ib. 11. The district courts have jurisdic- tion over all civil and criminal matter arising in their respective districts, . . . . ib. 12. Tlie district courts have concur- rent jurisdiction with justices of tha peace iu all sums under $100. iVe^- so» V. Gray, . . . 397 13. The district court has concurrent jurisdiction with justices of the peace in actions of replevin, when the property claimed is worth less than $50, so in all other actions. Hutton V. Drebilbis, , . 693 See Courts. Partition, 3, 5. JURORS. 1. Affidavits of jurors not admissible to explain their verdict. Lloyd v. McClure, . . . .139 2. It is the exclusive province of a jury to deciile the facts in a case. Bradley v. Kennedy, . . 231 3. If a case is not submitted to the jury impanneled at a regular term to try the case, a second jury may INDEX, 623 be impanneled for the trial at a fiihseqiient term. Harriman v. The .State 271 4. Where the oath required by statute is in substance administered to a jury, it is sufficient, . . ib. 5. Where the jury are "sworn the truth to speak upon the issue joined between the jiarties." it is not suffi- cient in a trial for murder, . ib. 6. In examining a juror as to his qualification, lie stated, that " he had formed and expressed an opin- ion from the rumour or report he liad heard in his neighborhood soon after the murder was committed; tiiat he iiad no acquaintance with the defendant, no ill-will ov preju- dice against him ; that he had no pei'sonal knowledge of the circum- stances of the case ; that he had never heard any of the testimony, or conversed with any of the wit- nesses; that his opinion was condi- tional ; that if what he had heard was true, he had formed an opinion, and if not true, he had formed none :" held that such juror is in- competent. Trimble V. The State, 404 7. In a criminal case the jurors had been impanneled and sworn, and the case partly submitted to them, when the court adjourned for din- ner ; during the adjournment, one of the jurors separated from his fellows, and when the court met this juror was dismissed and another person substituted : held that this substitution was erroneous. Grdble V. The State, . . ,559 8. The statute prohibitsthe separation of jurors in trials for felonies, ib. See Indictment?, 5, 6. Partnership, 1, JUSTICE OF PEACE. 1. A justice of the peace may deter- mine what townships are within his jurisdiction ex officio. Wright V. Phillips, . . . .191 2. A substantial compliance with the statute, conferring and regulating the powers of justices of the peace, is all that should be required, ib. S. In an action of forcible entry and detainer, the jurisdiction of a justice is co-extensive with the county, ib. 4. The official return of a justice can- not be impeached by the mere tra- verse plea of a part}- or bis attorney, where the record shows no evidence to support it. Writjht \. Jio.ss, 266 5. A verbal statement of plaintiff's demand before a justice, entered upon his docket and indorsed upon the writ, is all that is required by the statute of 1844. Taylor v. Barber, . . . .350 6. Mere irregularity and deficiency of form in proceedings beiore jus- tices should be regarded with liber- ality, . . . . . ib. 7. An appeal is authorized from the judgment of a justice, and not from the verdict of a jury. Brown y. Scott, 454 8. The intention of a justice to render a judgment without doing so, is not a judgment, . . . ib. 9. The certificate of an ex-justice of the peace, in relation to his pro- ceedings while in office, is not en- titled to legal consideration, . ib. 10. In a suit commenced before a jus- tice of the peace, a misnomer may be taken advantage of by motion, as well as by plea in abatement. Hall V. Bennett, . . . 466 11. In a case tried in the district court on appeal from a justice, it is error to receive notes in evidence that were not marked as filed by the justice, nor in any way identi- fied by his transcript. Graft v. Giltz, 670 See Attachment, 3, 4. Jurisdiction, 8, 12, 13. Replevin, 2. LAND. 1, Two contiguous quarter sections of land may be regarded as one entire tract or possession. Kerr v. Leighton, .... 197 2. A contract by which E agrees to purchase for M at the United States land office a portion of public land upon which M has made valuable improvements, is not repugnant to the act of congress passed in 1830, to prevent fraudulent practices at the public sales of the lands of the United States. Ellis v. Mosier, 247 024 INDEX. 3. Where an agreement is not calcu- lated to prejudice the price and sale of the ptiblic lands, it is not affected by the law of 1830, . ib. 4. Agreements in relation to improve- ments and claims on the public lands are recognized bj'^ the laws, courts and customs of Iowa, . ib. See Deed, 1. Description. Fence. Half-Bkeed Tbaot. LARCENY. 1. Under the statute, the word " lar- ceny" designates giand larceny, as contradistinguished from petit lar- ceny. The State v. Chambers, 308 2. The section of the statute in rela- tion to petit larceny regulates that offence without reference to the preceding sections, . . ih. 8. The word "steal" has a uniform signification, and means felonious taking and carrying away the per- sonal goods of another, . ib. LEGISLATURE. 1. The legislature of Wisconsin terri- tory could not curtail rights con- ferred, nor confer rights withheld, by the ordinance of 1787. Reid v. Wright, . . . .16 See Divorce. Statute. LEVY. 1. After levy by execution on goods and chattels sufficient to satisfy the judgment, the defendant in the execution is divested of his right to the property, and the officer mak- ing the levy becomes liable to the plaintiff for the debt, if he fail to perform his duty according to the requirements of law, or be released by the plaintiff. Lucas v. Cassu- day, 208 2. After a return by the officer, that property sufficient to satisfy the judgment has been levied on, the defendant in the execution is prima facie discharged from the debt, ih. LIBEL. See Evidence, 2, 3. LIEN. . A judgment lien will hold against a prior unrecorded deed, without actual notice. Hopping v. Bur- nam, 39 See Attachment, 2. Attorney, 3. Weits, 2. LIMITATION OF ACTIONS. 1. The statute of limitations approved February 15, 1843, cannot be plead- ed in bar of an action of debt, cove- nant, &c., within six years after the act commenced running. Forsyth V. Ripley, . . . .181 2. The decision in Norris v. Slaughter, 1 G. Greene, 338, approved, . ib. 8. The limitation act of 1839 having been unconditionally repealed by the act of 1843, without a saving clause, the time which an indebted- ness had run under the old act cannot be included as limitation time under the new act, . ib. 4. As tlie limitation act of 1839 had not been in force the requisite pe- riod of six j^ears, nor connected with the Micliigan act of 1820, it cannot be pleaded as a bar to an action of debt, . . . ib. 5. A repealed statute of limitations, under which an action had been barred, should be specially pleaded, ib. 6. Statute of limitations approved February 15, 1843, cannot be plead- ed in bar to any action of debt, assumjisit, &c., commenced before July 4, 1849. Hinch v. Weather- ford, 244 7. The statute of limitations approved February 15, 1843, cannot be plead- ed in bar to an action of debt within six years after the act took effect. Gordon v. Mounts, . 243 8. The words beyond sea, in the Mich- igan statute of limitations, means beyond the limits of the United States. Darling v. Meacham, 602 See Pleading, 22. INDEX. 625 M MANDAMUS. 1. In an application to the supreme court for maiidamns on the district judge, affidavits were filed to show that certain facts were proved to the court below which were not certified in the bill of exceptions ; to these, cou!ii,>jr affidavits were filed : held that in a matter thus susceptible of proof, and within the knowledire and sound discretion of the court below, this court will nill to set aside a partition is sufficiently sj;ecific where it charges that the attorney for plaintiffs in the parti- tion suit entered the appearance of complainant without his know- ledge, consent ur authority, and thereupon admitted a large amount of spurious, fiaudulent and unjust claims to others, which proportion- ately diminished his share in the property, .... ib. S. Where a bill charges actual fraud on the ground of deception, artifice and circumvention, in tei-ms judi- cially intelligible, it is sufficient, ib. 4. A general allegation of fraud in a bill is sufficient, if so certainly and distinctly stated as to make the sub- ject matter of it clear, . . ib. 5. If it appears by a bill in equity that complainants had a plain and adequate remedy at law, it is good ground for demurrer. Preston v. Daniels, .... 536 II. — At Law. 1. Declaration. 6. In an action of debt on a replevin bond, it is sufficient averment of non-payment where the declaration states, "that no part of said judg- ment and costs have been paid, and that the whole amount remains due and owing." Cameron v. Boyle, 154 7. If the important averments of a declaration are made with a suffi- cient regard to the rules of pleading to put the defendant on his defence, they are sufficiently good, . ib. 8. Where the county and state are named in the margin of a declara- tion, and the county is referred to in its body, as '' Monroe c'ty," held that the venue was sufficiently stated. Sicks v. Walker, . 440 9. In an action of slander, where general damages only such as the law implies from words actionable per se are claimed, the declaration need not specify damages, . ib. 10. Where the breaches in any court in a declaration in covenant are well assigned, a general demurrer should not be sustained. Brown v. Tomlinson, .... 525 11. While unmeaning forms should not be enforced, clearness and cer- tainty should be required in plead- ings, . . . . . ib 12. A bond or note may be sued, in the manner provided by the prac- tice act, without a declaration. — Rev. Stat., 476, § 43. Jacobson v. Manning, .... 585 See Action of Right, 5. Agreement, 8. 2. Demurrer. 13. General demurrer can only pre- vail against substantial defects. Under such a demurrer no advan- tage can be taken of merely formal defects. Coffin v. Knott, . 582 14. In an action of replevin, the de- fendants pleaded in substance that the plaintiff had previously brought an action of trespass, in which he declaied for the same property, against the same parties, in which they pleaded a release executed by the plaintiff to one of the defendants ; that to the plea of release there was a demurrer, which was overruled, and judgment rendered against the defendants : held that such a plea is good in substance, and that a general de- murrer to it should be overruled, ib. 15. A former action of trespass for taking goods may be pleaded in bar to an action of replevin for the same goods between the snme parties ; and it makes no differ- ence whether the judgment in the trespass suit was rendered upon a demurrer or a verdict, . . ib. See Admission. 3. Picas. 15a. In an action of debt on a note under seal, the plea of non est fac- tum is admissible ; but as it puts in issue the execution of the note, it should, under the statute, be verified by affidavit. Chambers v. Games, .... 320 16. A general allegation of fraud in a plea to an action on a ])r(mns.sory note is sufficient. Hildreth v. Tomlinson, .... 360 17. Pleas averriilg that one of two payees of a note became bankrupt after the note svas made, and before INDEX. n-J'J it was indorsed to tlie plaintiff, are defective liniess they aver that the jiarty who indorsed the note was not authorized to do so ; that the note was or should have been set forth in the bankrupt's inventory of assets ; and that the note was so held as to be vested by virtue of the decree in the assignee of the bankrupt, or that he otherwise acquired an interest or control over the note. Falweiler v. Singer, 372 18. A general plea that a note was obtained by fraud and circumven- tion is good. IStrmvser v. Johnson, 373 19. Where profert is made of a re- lease which had been pleaded, it becomes a part of the i^lea. Knott V. Burlcrson, . . . 600 20. Where a plea is defective only in form, a general demurrer to it should be overruled. Darling v. Me.achum, .... 602 See Action of Right, 3. Limitation of Actions. Notice, 10. 4. Replication. 21. Replication demurrable if it does not traverse the material allega- tions of the plea. Roberts v. Al- h-ight 120 22. Where a statute of limitation is pleaded, which cannot operate as a bar to the action, and a replica- tion is filed, that one of the joint debtors had promised payment within six years, to which replica- tion defendant demurred; it was held, that the demurrer related back to the first mistake in plead- ing, and that plaintiff was entitled to judgment on the demurrer. Wile V. Matherson, . . 184 POSSESSION. See Action of Right. PRACTICE. I. — In Equity. 1. No motion having been made to amend, -a bill may be dismissed and a decree rendered upon the demurrer. De Louis v. Meek, 55 2. Upon a general and special de- murrer, it is not necessary to make good all the causes of demurrer assigned. If sustained for one out of several causes affecting the whole bill it is sufficient, . ib. 3. A deumrrer puts in issue the entire equity of the bill, and if sustained as to some it should be as to all defendants, . . ib. 4. The objection of a misjoinder of complainants cannot be made for the first time at the hearing, but should be assigned among the causes of demurrer, . . ib, 5. Where a judgment in partition is alleged to have been obtained by fraud, it may be impeached by an original bill without leave of the court, . . . . . ib. 6. The rule that a judgment will not be reversed where the error does not affirmatively appear of record applies to cases at law, and not tp appeals in chancery. Austin v. Carpenter, . . . .131 7. Evidence will not be considered which is not responsive to the bill or answer. Shaw v. Livermore, 338 II. — In Criminal Cases. 8. American courts have dispensed with many of the stringent rules and nice technicalities which for- merly obtained in the English courts in criminal cases. Harriman V. State, . . . .271 9. Irregularity in proceedings is waived by pleading and submitting to a verdict without objection, ib. 9a. Many legal forms and techni- calities possess marked utility in practice, .... ib. 10. A prisoner should be present at his trial, and when the verdict is pronounced, . . . ib. 11. Where the record shows that the prisoner was regularly arraigned, that he was brought into court, and took bills of exceptions, it sufficiently shows his presence during the trial, . . . ib 12. A prisoner cannot complain of proceedings which were beneficial to him and in compliance with his request. Nash v. State, . 286 See Deposition. Indictment. Venue. 630 ENDEX. III. — At Law. 1. Appeal. 13. Where an appeal is allowed under a special statute, without a bond as required, it is not error to dismiss the appeal. But if a recognizance had been filed as authorized by a subsequent general statute, the appeal should not be dimissed. Sb. " Lake of the Woods " V. Shaw, .... 19 14. In an appeal to the district court, where the appellant is in default, the judgment of the justice may be affirmed. Taylor v. Barber, 350 2. Certiorari. 16. A judgment taken to the district court by writ of certiorari may be reversed, Wilsons. Albright, 125 3. Continuance. 16. A motion for a continuance on the ground of absent papers, taken by the attorney of the party applying for the continuance, was correctlj'^ refused. Wright v. Clark, . 86 4. Damage, Measure of. 17. Where suit is brought on a writ- ten or special contract, it must regulate plaintiff's right to recover as well as the amount recovered. Buffh V. Chapman, . . 549 18. Where plaintiff sued for work done pursuant to a written contract, and filed no bill of particulars, it is error to admit evidence to show that he had sustained damages in consequence of delays occasioned by defendants failing to furnish the materials promptly, . . ib. 19. By claiming the benefit of a spe- ci'd contract and making it the gravamen of his action, the plaintiff is precluded from recovering dam- ages for delay, &c., . . ib. 20. A party cannot avail himself of his own objections to work done for him and his refusal to accept, as a reason for not paying for it ; nor can he give in evidence his own acts and declarations, in order to Bhow that another party has failed in his contract to him. Crookshank V. Mallnry, .... 257 21. Where a dwelling frame is defec- tively erected, but still is of sub- stantial value to the defendant, for the purpose intended, the plaintiff would be entitled to a compensa- tion, to be ascertained by deducting from the contract price so much as the frame was worth, less than it would have been if completed according to agreement, . ib. 22. It was not necessary for the de- fendants to accept the dwelling in order to justify a recovery against them, . . . , , ib. 5. Default. 23. Where default is made by the appellant, the judgment of a jus- tice of the peace may be affirmed in the district court. Wright v. Clark, 86 24. Where a party appeals from a judgment by default, he may on first appearance in the district court object to the manner or style in which he is sued. Hall v. Bennett, .... 466' 25. It is error to render a judgment by defaxilt if a plea is on file in the case. Brown v. Hollenbeck, 318 26. After a plea is filed the issue should be tried, . . , ib. • 6. Demurrer. 27. Where a demurrer is overruled, and the defendant fails to plead over within the time required by rule of court, judgment may be rendered against him. Cameron v. L'oyle, 154 7. Instruction. 28. By an act approved January 15, 1849, all instructions from district judges to petit juries are to be given in writing. Pierson v. Baird, 235 29. That law took effect by publica- tion in newspapers, on 31st Janu- ary, 1849, . . . . ib. 29a. Courts should ktiow, ex officio, at what time laws take effect, ib. 30. Where special instructions asked were included in those of a more general character, it was not error to refuse them. Price v. A lexander, 427 31. Under the statute of 1849 it is erroneous for a district judge to charge a jury or to modify instruc- tions orally. Parris v. 27te State, 449 I^'DEX. 631 32. Legal instructions tnay be refused and civen in a modified form in writing, as the circumstances and evidence of the case may require, lb. 33. Where an instruction extends merely to the legal effect and meaning of an instrument, it can- not be objected to as an instruction upon the facts in the case. Lucas V. Snyder, . . . . 499 34. Where the court instructed the jury in relation to the legal effect of deeds, it cannot be considered a charge upon the facts. Durham v. Daniels, .... 518 8. Judgments. 35. A judgment by default for costs may be set aside and the entire case readjudicated. Hughes v. Mil- ler, 9 36. Judgment may be rendered against the security in an appeal bond from a justice of the peace. Fletcher V . Conly, . . 88 37. A judgment will not be reversed for a mere diminution in the record which might have been perfected. Wilson \\ Albright, . . 125 38. Judgment cannt)t be impeached collaterally for mere irregularity. Otmeron X. Boyle, . .1.54 39. Judgment may be rendered for the penalty named in a bond, as a security for the damages re- covered upon the breaches assessed, lb. 40. Judgment should not be rendered for a greater amount of damages than is claimed in the declaration, ib. 41. A judgment in debt was rendered in an action of assumpsit, and as all other proceedings in the case are regular, it was held that the judg- ment should not be reversi'd, liut should be correcti'd conformable to the action. Galloway Vi Trout, 695 42. Where a judgment is rendered upon a bond, it should be for the amount of the penalty ; with an order tliat an execution issue only for the amount of damages proved to have been sustained by the breaches. Nelson v. Gray, 397 43. After a verdict and judgment have been rendered without objec- tion to the complaint, a court should not entertain merely forma', defects. Sha%v v. Gordon, 376 9. Motions. 44. Where two motions are pending at the same time — oni- bj'defendnnt, to affirm for the want of notice, and the other by plaintiff, for leave to withdraw the writ of error — the supreme court will, at discretion, give preference to that motion which the nature and justice of the case may require. Roffcrs v. Alexander, 237 45. Where a party filed a motion in the district court, to affirm, for want of notice, but before the mot ion was decided filed a demurrer, it will not be considered an appearance or waiver of notice. Mears v. Garret- son 316 10. Nonsuit. 46. A nonsuit for failing to reply to pleas, when an issue in fact is joined on another plea, is errone- ous. Roberts v. Albright, . 120 47. A motion for a nonsuit, on the ground of plaintiff's failtjre to appear, will not be granted, if plaintiff appears before the motion is decided. Wright v. Phillips, 191 48. If evidence is adduced which tends, even remotely, to prove facts, which, if established, would support the action, a nonsuit should not be granted. Wiley v. Shoemak. 205 49. If a verdict for the plaintiff would be clearly against the weight and legal effect of the evidence, a non- suit may be ordered, . . ib. 50. Amotion to nonsuit plaintiff after evidence is submitted, is in the na- ture of a demurrer to evidence, ib. 51. A nonsuit should not be granted without the consent of plaintiff, unless the evidence is entirely ir- relevant, or has no bearing iipon a material point, without proof of which a verdict could not be sup- ported, , . . . ib. 11. Trial 52. A trial of the right of property cannot be had, under the statute, after the property has been sold, and jwssession passed to a third person by virtue oi legal process. Hughes V. Miller, . . 9 53. lu a proceeding to try the right 632 INDEX. of property taken on execution, a judgment liy default against the claimant will authorize the officer to proceed with the sale, . ib. 54. In an action of right, the plaintiff must recover upon the strength and validity of his own title, and should show a valid subsisting interest in the land. No such interest can accrue from a void judgment. Heid V. Wright, . . . .15 55. Not necessary to prove the iden- tity of the drawee of an order before it is offered in evidence. Fletcher v. Conly, . . 88 56. Where a party enters credits upon the instrument sued on, it is not necessary for the defendant to prove them. Lloyd v. McC'lure, . 139 57. After going into a trial upon the merits, and tlie plaintiff has proved his claim for work, the defendant should not be permitted to intro- duce evidence that the v/ork was done for him and another jointly, in order to avoid the liability. nine v. Houston, . . .161 68. The omission to join all the par- ties should be taken advantage of by plea in abatement, . . ib. 59. By going to trial on the merits, without exception to the cause of action, any defect in that particular would be considered as waived by the defendant. Taylor v. Barber, 350 60. Where an agreement was entered into ' ' for the purpose of trial before the justice, and in no other court," such agi-eement should not be used on trial in the district court if objected to by one of the parties. Rogers v. Alexander, . . 443 61. A party is entitled to a jury trial upon an issue of facts, even if those facts had been previously admitted by agreement, m- if the party had agreed to submit the case to the court, but had withdrawn the agree- ment, . . . . . ib. 62. Aprosecutionfor selling spirituous liquors in less quantity than one gallon should be conducted in the name of " The State of Iowa," ib. 12. Variance. 68. Taw «te»A9if>*i0r of an order becomes liable to ttae payee named in the order, and i "nere technical vari- ance will not defeat his liability. Fletchers. Conly, . 88 64. Where the transcript of a justice describes a note to be dated April 12, when the note offered in evi- dence is dated April 2, but is other- wise identified as the note upon which suit was brought, the vari- ance is not fatal. Rife v . Pierson, 129 65. A variance between the writ and declaration cannot be taken advan- tage of by demurrer to the declara- tion. Culver V. Whip2)le, . 365 66. In case of such a variance, the writ may, on payment of cost, &c., be amended so as to conform to the declaration, . . . ib. 67. Where there is a manifest vari- ance between the names to a note and the names to a record, the note should not be admitted in evidence. Hall v. Bennett, . . • 466 PRAIRIE FIRE. 1. Ordinary caution and honest mo- tives in setting fire to a prairie, and due diligence in preventing it from spreading, is a good defence to an action for damages. De France v. Spencer, .... 462 PROBATE COURT. 1. The probate court, though limited and inferior in [lower. had complete original jurisdiction in administer- ing the estates of decedents, and any judgment, order or decree up- on a subject matter, and between parties over which the court had jurisdiction, cannot be collaterally questioned. Barney v. Chittenden, 165 See Evidence, 7. PROMISSORY NOTES. 1. After a note for a certain sum pay- able in flour is due, it becomes a cash note, and a demand of pay- ment is not necessary. Wiley v. Shoemak, . . . .205 2. Where a promissory note for a sum certain is payable in leather at the tan yard of the maker, a ds- INDEX. 633 mand of tLe leather is not neces- sary. Gaines v. Manning, . 251 8. In a suit against the maker of a note, or the acceptor of a bill pay- able at a specified time and place, it is not necessary to aver or prove a demand of payment, and the same rule is applicable to notes payable in specific property, . . ih. 4. In order to discharge himself from a note payable in specific articles, it is necessary for the maker to show that he had paid, tendered or seb apart the property as a pay- ment of the note, . . ih. B. A demand after a property note becomes due, is a waiver of any pre viou s breach , and gives the maker A second opportunity to pay in pro- perty, ib. 6. A mere indorsement of a payment on a note is not prima facie evi- dence of payment, nor is it evi- dence of a new promise to revive a note barred by the statute of limit- ations, or discharged by a decree in bankruptcy, unless it is shown that the indorsement was made by the defendant, or by his consent, or that he actually paid the amount indorsed, Viele v. Ogilvie, 326 7. Under the statute, the signature of an indorser of a note need not be proved, unless it is denied under oath. Steinkelber v. Edwards, 366 8. Where a note is made payable in corn on or before a given day, a demand is not necessary. Phillips V. Cooley, .... 456 See Bill of Particulars, 2. Evidence, 10, 11. Partnership, 3. Pleading, 12, 15, 16, 17, 18. Practice, 63, 64. PUBLICATION. 8u Notice, 5, 6, 7, 8. RECORD. Records of the territorial district courts of Iowa not to be considered as foreign in the state courts of Iowa. Wrir/hf, v. Marsh, . 94 The record proper in a criminal case, after stating the time and Vol. it. place of holding court, need only set forth the indictment, properly indorsed as foimd by the grand jury ; the arraignment of the ac- cused ; his plea ; the impanneling of the traverse jury ; their verdict.; and the judgment of the court. Harriman v. State, . . 271 3. Any decision of a court made pre- liminary to final judgment, is, per se, a part of the record ; but all other proceedings, such as motions, exceptions, testimony and the like, are no part of the record unless made so by order of the court, by agreement of the parties, by de- murrer to evidence, by special ver- dict or by bill of exceptions, ih. 4. Only such matters as are of record can be brought to the notice and review of this court, . . ib. 5. A motion, supported by affidavit, is no part of the record unless made so by bill of exceptions. Ahbce v. Higgim, . . . .635 RECOVERY. See Practice, 17, 22. REGISTER'S RECEIPT. See Evidence, 5. REGISTRATION. See CoNVETANOKi Lien. RELEASE. 1. The construction of a release is a question of law to be determined by the court. Knott v. Burlerson, 600 2. Where legal terms are employed in a release, it must be presumed that the parties fully understood the legal import of the words, and the court will give effect to that understanding, . . . ib. See Accord and Satisfaction, 2. Pleading, 13, 19. REPLEVIN. 1. In an action of replevin against 41 634 INDEX. two or more, it is error tc instruct the jury that, " If either of the de- fendants was not guilty, they must find for both ; that one alone could not be found guilty." Carothers v. Van Hayan, . . . 481 2. In an action of replevin commenced before a justice of the peace, where the plaintiff fails to prosecute his suit with effect, or adduce any proof ill support of his action, the law presumes title to be in the defend- ant, and it is only necessaiy for him to prove the value of the pro- perty, in order to recover restitu- tion or payment of its value. Rick- ner v. Dixon, . . .591 See Bond, 4. Pleading, 6, 13, 14. RETURN. See Sheriff's Return. s SCHOOL DISTRICT. , Where the inhabitants of a school district levied a tax upon them- selves, and sufficient had been col- lected for the purpose of paying the teacher a balance his due, for which he had an order on the treasurer, and the officers of the district refused to pay the order after a proper demand, it was held that the teacher might recover, in an action upon the order against the district. McCasky v. School Distna, . . . .482 SEAL. See Attestation, 2. Bond, 1, 2. SET-OFF. 1. Where the plaintiff in an action of right waives all but nominal dam- ages, the defendant cannot intro- duce evidence of a set-off for im- provements. Daniels v. Bates. 151 2. A mere right to a reduction uf plaintiff's demand, in consequenc* of defects in the work for which it was charged, is not a demand which can be brought in a set-off against plaintiffs demand. Crook- shank V. Mallory, . . 257 3. A set-off must be predicated upon an independant demand, . ib. 4. Proof of a set-off may be excluded unless defendant has filed with his plea the particular items of his de- mand. Chambers v. Games, 320 See Settlement. SETTLEMENT. 1. A note is prima facie evidence of a settlement between the parties to it, so as to exclude items of set- off, charged prior to the date of the note, unless the defendant first prove or offer to prove that such items were not included in the settlement upon which the note was given. Smith V, Bissell, . . .379 SHERIFF. . Where, on account of prejudice, interest, or other objection, the sheriff is rendered incompetent, the coroner should perform his duty ; but if the party objecting to the sheriff asks the court to appoint an elisor, he, by implica- cation, manifests an objection to the coroner also, which will justify the court in appointing an elisor. Harriman v. Tlie State, . 270 , Where a jury was summoned by the .sheriff after the prisoner made affidavit that the sheriff was preju- diced again.st him, but the jury was not objected to until after the verdict, it was held that the objec- tion came too late, and that the irregularity was waived, . ib. SHERIFF'S DEED. See Description. SHERIFF'S RETURN. 1. A mere omission or irregularity in a .sheriff's return cannot vitiate a INDEX. 635 sale made under execution, so as to invalidate the right uf a bona fide piircliaser. Hopping v. Bumam, 39 la. Sheriff's returns of levj-, &c., not essential to title, . . . ib. 2. Where a sheriffs return of an exe- cution sale does not show that no- tice of the sale was served upon execution defendant, it will not be presiimed that notice was not given. Corridl v. Doolittle, . . 385 3. A sheriff's returns may be so amended as to set forth truthfully the facts of the service. Patterson V. State of Indiana, . . 492 4. Where it appears by the returns of tlie sheriff that a writ was served in the manner provided by statute, it is good, even if it should appear that the defendant had been three months absent from hia dwelling. Abbee v. Higgins, . . 535 Sec Bond, 4. SLANDER. 1. P, in speaking of L, said, " He is a thief ; he stole my wheat, and ground it, and sold the flour to the Indians : " held that these words are, per se, actionable in slander. Parker V. Lewis, . . .311 2. Words actionable in slander by implication of law, are to be con- sidered as false and malicious, un- less the contrary is made to appear by the evidence, . . . ib. 3. In slander, wiiere the words spoken are actionable per se, special dam- ages need not be alleged or proved, ib. 4. It is no defence to an action of slander, that the slanderous words were spoken by the fireside of the defendant, in the presence of but two or three neighbors. This cir- cumstance will not remove the presumption of malice. Shaw v. Sveeney, . . . . 587 6. Exceptions to the general rule of presumptive malice explained, ib. See Evidence, 9. Pleading, 9. SPECIFIC PERFORMANCE. 1. Where S agreed to deed a lot to L upon condition that he woyld make certain improvements and live upon the lot, it was held that if L performed the substantial condi- tions with ordinary diligence, he was entitled to a specific perform- ance. Shaw V. Livermore, 338 2. Equity will extend relief, even if there has not been a strict legal compliance with the terms of tiie contract, if it can be done consist- ently with the essence of the agree- ment, .... ib. 3. Where one of the conditions upon which a deed should be made was, that the purchaser should reside up(.)n the lot, but the term of such residence was not designatetl, it was held that as the purchaser had com- plied with all the other conditions to secure title, and had resided upon the lot nearly two years be- fore he left it, that such leaving would not be au abandonment, and that he was entitled to a deed, ib. 4. The recision or the specific per- formance of a contract is left to the sound discretion of the chancellor, to be exercised upon a consideration of the circumstances of each case, under applicable general rules of equity, .... ib. 5. The statute authorizes a proceed- ing against an executor or adminis- trator for a conveyance in pursuance of a contract with the deceased. Fulwider v. Peterkin, . 622 6. In a proceeding against an estate for a specific performance, it is not necessary to make the heirs a party to the conveyance, . . ib. STATUTE. 1. Legislation in derogation of trial by jury, and of proceedings accord- ing to the course of the common law, is in conflict with the ordinance of 1787, and therefore void. Eeid V. Wright, .... 15 2. An act of the legislature of the territory of Wisconsin, entitled, "An act for the partition of the half-breed lands, and for other pur- poses," approved January 16, 1838, and an act supplementarj' thereto, approved June 22, 1838, and also an act passed by the Iowa legisla- ture, approved January 25, 1839, to repeal both of said acts, are repug- 636 INDEX. nant to the ordinance of 1787, and also to the organic law of Wiscon- sin and Iowa, and are therefore void, ib. 3. So al.- ^xJjkLuo /\N(jLLtJ'- 6=^ CP %HiAiNn W^EUNIVER^ ^lOS-ANG[L£j> ■'^^'30NY-SOT '^''.^o-nwr^c^- ^(L ' 5 000 551 673 7 ;^..,-,. ^ J i ^ ^^r, • ■ Vi = >^^^ > LiBRARY(9 , J i^ 10 II Jx^l