law, may, for a valid and sufficient consideration, contract with another
party to redeem the bills for him. Allen v. Pegram et al., 163.
10. RESCISSION OF CONTRACT. The extent to which, and the manner in which
contracts may be rescinded, considered and discussed. Id. Nason v.
Woodward, 216.
See BANK, 1; CUSTOM.
CONTRIBUTION.
See LIEN, 4-6.
COPARTNERSHIP.
1. DEBTS OF COPARTNERSHIP. In ascertaining the assets of a firm, as between
the partners, the excess of the indebtedness of one partner over that
of his copartner to the firm, and not his entire indebtedness, in the
absence of any agreement, is considered as forming a part of such
assets. Carl v. Knott, 379.
2. PARTNERSHIP AGREEMENT: QUESTION FOR JURY. The terms of a contract
for the adjustment of differences between copartners in the settlement
of their firm business should be ascertained by the jury, to whom an
issue involving the same is submitted. Id.
1. QUORUM. A majority of a quorum of a board of directors of a corpora-
tion, at a meeting at which a bare quorum is present, may bind the
corporation. Buell v. Buckingham & Co., 284.
2. SAME. The by-laws of a corporation provided that the president and two
directors should constitute a quorum of the board. At a meeting at
which the president and but two of the directors were present, a sale
of the property of the corporation was made to the president. Held,
that the sale was not invalid for want of power. Id.
3. SALE OF REAL ESTATE. A board of directors of a corporation, invested
with general powers to make contracts, may make a valid sale of the
real estate of the corporation. Id.
4. MUNICIPAL CORPORATION. The Legislature has the constitutional power
to create a municipal corporation. Langworthy v. The City of Drs
buque, 271.
5. SAME: BOUNDARIES AND TAXATION. The power to create a municipal cor-
poration carries with it the power to fix the geographical boundaries
thereof, and to change the same by extension or contraction. Also,
to provide for such corporation a local government, to clothe it with
the power of taxation for local purposes, with or without the consent
of those who may be affected thereby. Id.
6. SAME. While the enlargement of the boundaries of a municipal corpora-
tion whereby the property of individuals is brought within the cor-
porate limits without their consent, and thereby subjected to municipal
taxation, may not be an infringement of the Constitution by taking
private property for public use; it may so operate when such exten-
Bion is unreasonable, and embraces lands and territory not needed for
building and population, but which is taxed for the benefit of the
territory which is thus needed and occupied. Id.
1. SAME: WHEN COURTS WILL INTERFERE. The courts will not interfere with
the exercise of the power to extend the corporate limits, but they will
restrain municipal taxation where practicable, in cases in which it is
shown that the proprietor of the property taxed cannot be benefited
in a municipal point of view. (Morford v. Unger, 8 Iowa, 884.) Id.
See BANK; CONSTITUTIONAL LAW; CONTRACTS, 9.
1. TAXING COSTS AGAINST PROSECUTING WITNESS. The power conferred by
§ 5086, Rev. of 1860, upon a Justice of the Peace to tax costs to a
prosecuting witness, when satisfied that the prosecution was malicious
or without probable cause, may also be exercised by the District Court
upon a trial of a criminal case on an appeal, though such order has
not been made by the Justice before whom it was tried. In re
Trenchard, 53.
2 SAME. This power may be exercised without the hearing of any evidence
on the part of the State in addition to that submitted on the trial of
the cause, if that is sufficient to show an absence of probable cause;
and when the evidence submitted on the trial is not embraced in the
record, the Supreme Court will presume that it was sufficient. Id.
3. SAME: PROSECUTING WITNESS. The person who files the information in a
criminal proceeding is considered the prosecuting witness. Id.
4. RECOGNIZANCE. The failure of the prosecuting witness to appear at the
District Court, to further prosecute a party who has been required,
upon his complaint, to enter into a recognizance to keep the peace, is
not sufficient ground to relieve the defendant of costs then accrued.
The State of Iowa v. Leathers, 406.
1. ACTION AGAINST. Chapter 93, Laws of 1862, is limited in its application
to actions commenced after the taking effect thereof. Mather v. Butler
County, 59.
1. COVENANTS IN DEED. The general rule is, that if a deed contains no cove-
nants, in the absence of fraud, all questions of title are at the risk of
the grantee; if it contains covenants, the grantee must have recourse
to them if his title fails. The grantee cannot withhold the considera-
tion while he remains in the undisturbed possession of the property
sold. Allen v. Pegram et al., 163.
1. PERJURY. It is not essential to constitute the crime of perjury that the
fact sworn to shall be material to the main issue in the case. It is
sufficient if it be material to a collateral issue before the court. The
State of Iowa v. Shupe, 36.
2. SAME: AFFIDAVIT FOR CONTINUANCE. An affidavit for the continuance
of a cause consists of three essential and material parts: 1. The name
and residence of the witness, and the facts showing the probability of
procuring the testimony at the next term; 2. The facts showing due
diligence; and, 3. The facts to be proved by him. An affiant, who, in
such an affidavit, willfully states matters which are false, and are
VOL. XVI.-78
material to the establishment of one of these parts, is guilty of per-
jury, although the matters stated as to the other two parts are wholly
immaterial. Id.
3. FORMER ACQUITTAL OR CONVICTION: WHEN FRAUDULENT. The judgment
of a Justice of the Peace in a criminal proceeding instituted by the
procurement of the defendants, in which their conviction or acquittal
is secured by fraud or collusion, may be appealed to the appellate
Court, or disregarded and treated as void. It is no bar to other pro-
ceedings against the same defendants for the same offense. The State
of Iowa v. Green & Mann, 239.
CURRENCY.
See CONTRACT, 7.
1. USAGE AND CUSTOM. In an action on a written contract, it is competent
to show by parol evidence that words used therein had, at the time
such contract was entered into, a local meaning different from their
usual signification, and that this was known to both parties who con-
tracted with reference to such meaning. Pilmer v. The Branch of the
State Bank at Des Moines, 321.
DAMAGES.
See MARRIAGE PROMISE.
1. PARTY. A wife will not be ordered by the decree of a court of chancery,
in a proceeding to which she is not a party, to release her dower inte-
rest in real estate. Troutman v. Gowing, 415.
1. PRESUMPTION OF DEATH. When the record in the Supreme Court shows
that the death of the plaintiff was suggested in the court below, and
his administrator substituted, it will be presumed that the order of
substitution was made upon sufficient evidence of the death. Porter v.
Sharpe, 438.
1. ENROLLMENT. A decree in chancery is constructively taken to be enrolled
when the court by which it is rendered has finally adjourned for the
term. Mc Gregor v. Gardner, 538.
2. PRESUMPTION IN FAVOR OF DECREE. Every presumption obtains in favor
of the validity of a decree rendered by a court of general jurisdiction,
unless such presumption is rebutted by what appears affirmatively on
the face of the record. Prince v. Griffin, 552.
3. SAME: ACCEPTANCE OF SERVICE BY ATTORNEYS. A decree of foreclosure
rendered in a cause upon an acknowledgment of service of original
notice by attorneys, held not to be yoid upon the face of a record
which was silent as to their authority to accept such service. Id.
1. PLEADING. Pleas filed when the defendant is in default should, on motion
of plaintiff, be stricken from the files. Brayton v. Delaware County, 44.
2. ON APPEAL. A defendant in default, before a justice of the peace, will
not be permitted to plead until the default has been set aside by a
compliance with § 3150 of the Revision of 1860. Id.
3. SETTING ASIDE DEFAULT. As to grounds for setting aside a default, see
Kreisinger v. The Icarian Community, 586.
1. MORTGAGE: DEFEASANCE. The owner of real estate conveyed the same
by an absolute deed to a creditor to secure the payment of a sum of
money borrowed, taking a separate defeasance back, stipulating that
he should retain the possession and use of the premises conveyed
until the maturity of the debt. In an action commenced before the
maturity of the last installment, to recover the possession under
the deed, it was held that the stipulation in the defeasance consti-
tuted a good defense to the action, and could be asserted without a
transfer of the cause to the chancery docket. Rozierz v. Van Dam,
175.
DEPOSITIONS.
See EVIDENCE, 9-12.
1. DESCENT OF REAL ESTATE. Upon the death of the ancestor, his real estate
descends at once to his heirs, charged with the liability to be eventu-
ally taken, if necessary, for the payment of his debts. Laverty v.
Woodward, 1.
EJECTMENT.
See ACTION OF RIGHT.
1. CONTESTED MAYORALTY ELECTION. An ordinance conferring upon the city
council jurisdiction to try and determine a contested election for mayor,
is not inconsistent with chapter 51 of the Revision of 1860. Ex parte
Strahl, 369.
2. CONTEST OF MUNICIPAL ELECTIONS. It is competent for a city council, act-
ing under a charter making them the judges of the election returns,
and qualification of their own members, to provide, by ordinance, for
contesting the election of city officers, and to make the counsel the
tribunal for the trial of the same. Id.
1. ADMISSION OF IMPROPER EVIDENCE. A decree will not be reversed because
the evidence of an incompetent witness was received by the court
below, when the decree is sustained by the other evidence in the
record. Ticonic Bank v. Harvey et al., 141.
I. RELATING TO REAL ESTATE.
1. EVIDENCE IN AN ACTION TO RECOVER REAL ESTATE. When both parties
to an action to recover real estate claim under the same third person,
it is prima facie sufficient to prove the derivation of title from him
without proving his title. Cooley v. Brayton, 10.
2. ADMISSIBILITY OF BOND. In an action to recover the possession of real
estate, a defendant, claiming as the assignee of a bond to convey the
same, may introduce in evidence the bond which is the basis of his
defense, before showing that he is the legal assignee of, or equitably
entitled to the rights which it conferred. Van Orman v. Spafford,
Clarke & Co., 186.
3. LEGAL TITLE: ONUS. The burden of proof is upon a party attempting to
overturn a legal title; and the evidence offered for this purpose must
be clear, satisfactory and conclusive, and not made up of loose and
random conversations. Parker v. Pierce, 227.
II. DECLARATIONS OF DECEDENTS.
4. VERBAL DECLARATIONS. Verbal declarations are receivable in evidence
in an action between third parties when accompanied by the fol-
lowing prerequisites: 1. The declarant must be dead; 2. The declara-
tion must have been against the pecuniary interest of the declarant
at the time it was made; 3. The declaration must be of a fact in rela-
tion to a matter concerning which the declarant was immediately and
personally cognizable; and 4. The Court should be satisfied that the
declarant had no probable motive to falsify the fact declared. The
County of Mahaska v. Ingalls, 81.
5. SAME. It is probable that the courts will not relax the rule making death
a prerequisite, unless it might be in the case of confirmed insanity. Id.
6. SAME: OF CONVERSATION. When a witness testified, in an action against
an executor, to a conversation with the intestate, but stated that ho
could not remember the entire conversation: Held, that the Court did
not err in refusing to exclude the evidence of the witness. Mays v.
Deavor, 1 Iowa, 216; The State of Iowa v. Elliot, 15 Id.; Nash v. Gib-
son, 305.
III. IN ACTIONS BY AND AGAINST ADMINISTRATORS.
7. PARTY EXECUTOR. When the plaintiff in an action on a promissory note
died before trial, and the action was revived in the name of his admin-
istrator, it was held that the defendant was not a competent witness
to prove that at the time of the commencement of the suit, the note
was not the property of the decedent. Porter v. Sharpe, 438.
8. LOSS OF INSTRUMENT: EXECUTOR. Section 3982 of the Revision of 1860,
does not exclude the oath of the plaintiff in an action against an
administrator, as to the loss of the instrument, which is the basis of
the action, when the facts transpired before the death of the intestate.
The prohibition of said section is intended to apply when the party
offers himself as a witness to prove facts, the knowledge of which is
not, from their nature, confined to himself. Nash v. Gibson, 305.
9. DEPOSITIONS. Depositions taken out of the State must be taken on com-
mission, and not on notice. But when the deposition can be taken in
|