A. B.

v.

C. D.

And afterward, to-wit: on the 4th day of May, A. D. 1861, it being the fourth day of the May term of the said court, the said A. B. (or plaintiff) filed the following demurrer to the answer of the said C. D. (or of the said defendant) to-wit:

[Copy the demurrer.]

[If a party files more than one pleading at the same time, they should be numbered in their legal order, as for instance a demurrer, plea and answer, and the transcript may say, (stating the date) the said C. D. (or defendant) filed his demurrer, plea and answer, which are filed de bene esse, or, subject to the rule.]

A. B.

v.

C. D.

And now on this 5th day of May, A. D. 1861, it being the fifth day of the said May term thereof, this cause coming on for hearing on the plaintiff's demurrer to the defendant's answer, [copy the entry of the proceedings of the court, sustaining or overruling the demurrer.]

And afterward on the 6th day of the said May, it being the sixth day of the said term, the said plaintiff filed his replication in the words and figures following, to-wit:

[Copy the replication.]

And afterward on the same day the said defendant filed motion and affidavit for a coniinuance, as follows, to-wit: [Copy it.]

And the same being now heard and considered by the court, the said motion is sustained, and it is ordered that this cause be continued until the next term of the court, (at the cost of the defendant.)

DISTRICT COURT,

POLK COUNTY, September Term, A. D. 1861.

And now on this 12th day of September, it being the second day of said term, this cause coming on for trial, came a jury, to-wit:

twelve good and lawful men, who were sworn well and truly to try the issue between the said parties, and a true verdict to render according to the law and evidence given them in court, the jury retired to consider on their verdict. And afterward on the same day the jury returned into court and rendered their verdict as follows:

[Copy it as entered of record.]

[Or if the jury does not return until the next day :]

A. B.

V.

C. D.

And now on this 13th day of September, the jury in the foregoing cause returned into court and rendered their verdict as follows:

A. B.

V.

C. D.

[Copy as put in form by the court.]

And afterward, on the on the 14th day of September, A. D. 1857, being the fourth day of said term, the plaintiff (or defendant) filed his bill of exceptions, in the words and figures following, to-wit:

Now on this 15th day of September, A. D. 1861, the plaintiff filed his motion for a new trial, to-wit:

And now on this 16th day of September, A. D. 1861,

this cause coming up for a hearing on the motion of the plaintiff for a new trial, it is considered by the court that the same be overruled, [or as the record entry may be.]

Then add final entries of record, comprising final judgment, &c., and certificate of clerk.

NOTES.

1. The foregoing form is but an example, and is to be varied according to the circumstances. The actual facts of the case will dictate what is to be done, but in all cases it is to be done substantially in like manner with the above, giving the proper order and date of the filing of papers and incorporating them at the proper dates into the proceedings of the court.

It will be understood that it is not necessary in all instances to send up the whole of the record, but the clerk may be guided by the directions of the appellant, under section 3512 of the Code.

2. The court has in contemplation the adoption of a rule, at the next December term, requiring all transcripts, as also all arguments furnished in addition to an oral one, to be printed. In the meantime an expression of opinion is solicited from the members of the bar.

INDEX.

ABATEMENT.

1. Quashing of a writ.-The quashing of a writ does not operate to abate the action in which it issued, following Beard v. Smith, 9 Iowa 50. Minott v. Vinegard, Sheriff, 90.

ACTION.

1. Expenses incurred in keeping and maintaining prisoners.-No action can be maintained on a demand for charges and expenses incurred in keeping and maintaining prisoners in a county jail, before such demand has been presented for settlement and allowance to the county judge. From an order refusing to allow such a demand, or an order allowing an insufficient amount, the claimant can take an appeal. The State of Iowa ex rel. Brackett v. The County Judge of Floyd County, 5 Iowa 380, held inapplicable to this class of cases. Marvin v. Fremont County, 463.

See ASSIGNMENT, 16, 20, BOND. 1, 2, 3.

ADMINISTRATOR.

1. Note barred by limitation.-Where in an action on a promissory note against the administrator of the maker, commenced after the note was barred by section 1373, Code of 1851, it appeared that the plaintiff was a non-resident of the State when the note was executed, and had so remained ever since; that at that time and thereafter until his death, the maker resided in this State; that the plaintiff had no notice of his death or of the appointment of an administrator until immediately preceding the commencement of the suit; and that the estate remained unsettled, and there was in the hands of the administrator means to pay all demands against the same; it was held that the showing of "peculiar circumstances was sufficient to entitle the plaintiff to equitable relief. Mc Cormack v. Cook, Adm'r, 267.

2. Allowance of a claim.-The county court may allow or disallow a a claim and designate the class of claims in which it shall be paid; and the Code contemplates a judgment for a specific sum after the assets are ascertained to be insufficient for the payment of all the debts of any one class. Hart v. Jewett, et al. 276.

3. Same. When a claim has been allowed and its class designated by the county court, it should be paid ratably with other claims of the same class, when the assets are insufficient to pay the full amount of all. Ib.

4. Order of payment of claims against an estate.-The assets of an estate of a decedent should be applied in the payment of claims in the following order: 1, Expenses of administration; 2, Charges of last sickness and funeral expenses; 8, Allowances made to the widow and minor children; 4, Debts entitled to a preference under the laws of the United States; 5, Public rates and taxes; 6, Claims filed within six months after notice of the appointment of an administrator; and the court should not order the payment of a claim in the sixth class until it is shown that assets remain after satisfying the claims belong

ing to the preceding classes; and assets thus remaining should be applied to the payment of all claims in that class ratably. Assets remaining after the payment of all claims of that class should be applied to other debts and legacies. Ib.

AGENCY.

1. Ratification: estoppel.-A principal cannot, after the ratification of a contract made by another as his agent, avoid the contract on the ground that it was made without authority. Bell v. Byerson & Barlow, 233.

2. Respondeat superior-The principal is not liable for the damager sus tained by an employee from the negligence of a co-employee in the same general service. Sullivan v. The Mississippi & Missouri Railroad Company, 421.

3. Statute construed.—The act entitled "an act to grant to Railroad Companies the right of way" (1853) does not change the general rule of law upon this subject. Ib.

4. Assignment.-A member of a firm may assign a judgment in favor of the co-partnership, to a third party, for whom he may act as agent in the acceptance of the assignment. Randolph Bank v. Armstrong, Garnishee, 515.

NOTE. See the argument counsel for appellee in Dyer v. The Executors of Jessup, 120

ALTERATION.

1. Alteration of a mortgage.-Where a mortgagor altered a mortgage after it was signed by his co-mortgagor, without the knowledge and consent of such co-mortgagor, by inserting the description of additional property, it was held that the mortgage was valid as to both mortgagors as a conveyance of the property described therein before the alteration was made; aud that the party who made the alteration was bound by it as a conveyance of all the property embraced both in the original mortgage and in the alteration. Van Horn and Clark, Adm'rs v. Bell, 465.

AMENDMENT.

1. Striking out parties. The plaintiff may, after the demurrer to a petition for a misjoinder of parties has been sustained, amend by striking out the name of his co-plaintiff. Glick v. Hartman, 10 Iowa 410 cited and approved. Butcher v. Carleton 47.

2. When allowed. Amendments of pleadings should be allowed so long as there is a substantial subject matter or remedy sought. The court has ample power to protect the rights of the defendants in the dispo sition of costs, and in allowing full and ample time to prepare a defence to the amended pleading. Seevers, Adm`r v. Hamilton et uz, 66. 8. Attachment. An affidavit for an attachment may be amended in substance as well as in form. J. L. Langworthy & Bro. v. Waters, Hughes & Co. 432.

See ATTACHMENT 4; PLEADINGS AT LAW 6, 14.

APPEAL.

1. By whom taken. An appeal from an order of the District Court can be taken only by a party to the proceeding in which such order is made. The State of Iowa, ex rel Alderson v. Jones, County Judge, et al 11.