2. Joinder of parties. M. C. & W. leased certain premises to S. S. for a term of years, the lessee agreeing to pay the rent therefor quarterly. J. C. S. joined in the execution of the lease and guarantied upon his part that the payments of rent should be faithfully made as they become due. Held, That J. C. S., upon the failure of the lessee to pay the rent, became liable upon his contract without further conditions and was properly joined with the lessee in an action for the rent in arrear. Mc Lott, Corbin & White for the use of Charles B. Marvin v. Savery & Savery, 323. 3. Joinder of parties. The makers and guarantors of a promissory note may be joined as parties defendant in an action thereon. Marvin v. Adamson et al, 371. See PLEADINGS AT LAW, 2, 12, 13. HOMESTEAD. 1. Homestead: head of a family. Where a widower, without children, acquired real property which he occupied as a homestead for himself and his mother who was the sole member of his family, it was held that he was the head of a family within the meaning of the statute, and that the premises so occupied were exempt from levy and sale for the satisfaction of debts thereafter contracted. Parsons v. Livingston & Kinkead, 104N 2. Same. Sections 1263 and 1264 of the Code of 1851, only prescribes the manner in which a homestead shall descend, 1b. 3. Liability of the homestead. When the Code provides that the homestead may be liable for debts created by written contract by the persons having the power te convey, it has reference primarily to the manner in which the debt is evidenced, rather than the time the liability arises with reference to the date of such evidence. Stevens et ux v. Myers et al, 183. 4. Deed of trust on the homestead. A sale of a homestead by a trustee, under a deed of trust, will not be enjoined on the ground that the other property of the owners subject to execution has not been exhausted, when it is not alleged in the bill praying for the injunction that the owners have such property. Ib. 5. Mortgage of a homestead. It is not essential to the validity of a mortgage of property occupied as a homestead, in the execution of which both the husband and wife concur, to expressly describe the property as a homestead and to state that it is with referonce to that fact that the conveyance is made. LowE, C. J. dissenting. Babcock v. Hoey et al, 375. Sa What INDICTMENT. жет 216 1. Gambling house. An indictment under section 2721 of the Code of 1851, charged that the defendant at a time and place named “being then and there the keeper of a house resorted to for the purpose of gambling, knowingly and unlawfully did permit, and suffer evil disposed persons, whose names are to the grand jurors unknown, then and there to play at cards for money, whisky and other property, &c.; Held, that it was sufficient. The State of Iowa v. Middleton, 246. 2. Duplicity. An indictment charging in one count the accused with injuring and defacing a dwelling house, is not objectionable on the ground of duplicity. The State of Iowa v. Hockenberry and Brandt, 8. Same. When a statute sets out different grades or degrees of the 4. Intemperance. Under Section 6 chapter 45, laws of 1855, a defendant 5. Same. Under said act a defendant cannot be charged in separate 6. Same: indictment. Ib. In an indictment under section 8 of ch. 45, Laws 7. Indictment: embezzlement. An indictment under the third clausa of INDORSER. See CORPORATION 3: DEMURRER 3: NOTARY PUBLIC: PROMISSORY Note. INJUNCTION. 1. Dissolution of injunction. An injunction may be dissolved on bill and 2. Dissolving injunction and dismissing bill. The court below, upon the v. Fredericks, 181. 3. Dissolving injunction. When the answer to a bill praying an injune- 4. Dissolving injunction. Shricker v. Field, 9 Iowa 366, as to the discre- 5. Remedy. An injunction should not be granted when the petition does INSURANCE. 1. Insurance company: by-laws. When the directors of an insurance com- power to control the business of the company; was printed upon the backs of all policies issued, including the one in controversy, it was held, 1. That the by-law was valid and binding upon the holder of the policy. 2. That a non-compliance with the requirements of the by-laws rendered the policy void. Hygum v. Etna Insurance Company, 21. 2. Premium notes. The forfeiture of a policy of insurance by a mutual insurance company, does not discharge the party whose property was thereby insured from his liability to pay the assessments already made upon his premium note executed to the company in consideration of such policy. Iowa State Insurance Company v. Prossee, 115. [NOTE. For authorities concerning the power of a board of directors to adopt by-laws, the manner of adopting the same, and their effect upon the rights of the insured, see the arguments of counsel in Hygum v. Etna Insurance Company, 21.] INSTRUCTIONS. Instructions to the jury should always be O'Connor v. Guthrie & Jordan, 80. 1. Instructions in open court. Instructions which are vague and application to the facts of the case, Butler and Robinson v. Rickets, 107; 3. Pertinency. The instructions of the court should be restricted to the issues made by the pleadings and to the evidence. Nollen v. Wisner and Van Vark, 190. 4. When already given. The court is not bound to give instructions at the request of a party where they have been already substantially given to the jury. The State of lowa v. Hockenberry and Brandt, 269 5. Explanation. It is not improper for the court in giving instructions asked by a party to append thereto a note directing that they shall be considered in connection with other instructions given by the court. The State of Iowa v. Pitts, 343. 6. Same. Where a jury, after considering for a time upon their verdict, reported to the court that they were unable to agree, and the court was further informed by one of the jurors that they could not agree upon the law of the case, held that the giving of further instructions was not erroneous. Ib. 7. Modification. A judgment will not be reversed because instructions given by the court to the jury, which were correct as abstract propositions, should have been modified, when it appears that appellant did not ask for any such modification, or that it was not demanded by the circumstances of the case. The State of Iowa v. Tweedy, 350. 8. Construction of contract. Where the evidence showing a contract in parol is conflicting the court should leave all the questions upon the contract to the jury, to be determined by the weight of the evidence. Kingsbury v. Buchanan, 387. 9. Oral Instructions. That the court instructed the jury orally is not sufficient cause for the reversal of a judgment rendered in proceedings commenced under the Code of 1851. The State of Iowa for the use of The City of Dubuque v. Leiber, 407. 10. Verdict against instructions. A jury in agreeing upon its verdict must be governed by the law as given in the instructions of the court, and the Supreme Court will not review instructions when the verdict is inconsistent therewith. Sovery v. Busick, 487; Jewett & Root v. Smart & Gillett, 505. 11. Modification. It is not error to refuse instructions which can be properly given only with modifications. Morrison v. Myers & Turner et al, 538. See PRACTICE AT LAW 4: RECORD 3. INTEMPERANCE. 1. Instructions: information. The defendant, on the trial of an information wherein he was charged with five distinct offenses of selling intoxicating liquors, in as many counts, asked the court to instruct the jury, that to find him guilty as charged in each count, they must find that he sold to the person, and at the time, as therein charged. Held, that because of the restriction as to time, the instruction was properly refused. The State of Iowa v. Malling, 239. INTEREST. 1. Interest: lex loci. Interest due by express contract, or as damages, is computed in accordance with the laws of the place where the contract is made. Buiters v. Olds et al, 1. 2. Same. Where a contract is made in one State, to be performed in another, interest thereon will be computed in accordance with the laws of the place of performance, unless the parties stipulate for a rate of interest allowed by the laws of the State in which the contract was made. 10. JOINDER OF PARTIES. 1. Joinder of parties: administrators. Where one of the makers of a joint and several promissory note dies pending an action thereon, his administrators can not be substituted and joined with the surviving maker as a party defendant; citing and following Childs, Sanford & Co. v. John Hyde & Co., 10 Iowa 294; Wapello County v. Bigham, Adm`r, lb. 39. Robert E. Pecker & Co. v. Cannon & Scott's Administrators, 20. See GUARANTY 2, 3. JUDGMENT. 1. Attacking a judgment collaterally. A judgment cannot be attacked for informality in a collateral proceeding. Burton & Stapleton v. The District Township of Warren, 166. 2. Judgment of probate court. a claim and directing an administrator to pay the same pro rata with A judgment of the county court allowing other claims of a certain class, the court having jurisdiction of the subject matter and of the parties, is conclusive upon the administrator until it is properly reversed or set aside. Hart v. Jewett et al, 276. 3. Judgment in replevin. When a judgment in an action of replevin is not rendered in a trial upon the merits and does not determine the question of title, ownership in the defendant may be pleaded and shown in an action on the bond in mitigation of damages. Buck v. Rhodes et al, 348. 4. Judgment in attachment. suit, directing a special execution to issue against the property An order in a judgment in an attachment VOL. XI. 43 attached, is not necessary to continue the attachment lien. Kingsbury v. Buchanan, 387. 5. Excessive judgment. Where the petition prayed for judgment for seventy dollars and did not ask for interest, and the appeal bond filed in the cause was in the sum of seventy-five dollars, it was held that a judgment against the principal and surety for the sum of eighty dollars and fifty cents was excessive. Krause v. Hampton, 457. 6. Confession of judgment: verification before plaintiff's attorney. The verification of a statement for a judgment by confession, before a Notary Public, who was acting as plaintiff's attorney, will not of itself justify a court in setting the judgment aside as irregular or invalid. Vanfleet v. Phillips, 558. 7. Sale: signing and approving record. Section 1578, Code of 1851, is directory only; and a failure by a court to approve and sign the record of a judgment by confession, entered in vacation, at the term following such entry, does not avoid the judgment. b. 8. Same: sufficiency of a statement. A sworn statement for a judgment by confession, on a promissory note, which sets up the note, and states that the consideration thereof "was money loaned by plaintiff to defendant," is sufficiently specific in its statement of the facts out of which the indebtedness arose. 1b. 9. Same: cases cited. Edgar v. Greer, 7 Iowa 156; Kennedy v. Lowe and Creel, 9 Ib. 580; and Bernard & Co. v. Douglas & Watson, 10 lb. 370; cited and held inapplcable to the cases at bar. Ib. 10. Form of Judgment. When a defendant was tried on an information charging five distinct offenses in as many counts, and was found guilty as to the first four counts; a judgment on the verdict fining him in "the sum of twenty dollars on each of the counts numbered, one, two, three and four, as found by the jury," was sufficiently formal. The State of Iowa v. Malling, 289. See ADMINISTRATOR 2: NEW TRIAL 1: PRACTICE AT LAW 11. JURY. 1. Affidavits of Jurors. Affidavits of jurors peach their verdict; but may be considered conduct of the jury in finding the same. Missouri River Railroad Company, 62. cannot be received to imwhen they show the misStewart v. The Burlington & JUSTICE OF THE PEACE. 1. Justice's docket. A justice of the peace should write in his docket the substance of oral pleadings; but should not state his inferences drawn therefrom. Jordan & Miller v. Quick, 9. LANDLORD'S LIEN 1. Action. A landlord may maintain an action for rent due and for a lien, without asking for an attachment as provided for by section 1271, Code of 1851. Bartlett v. Gaines, 95. 2. Judgment: lien. When in an action for rent in arrear and for a landlord's lien there was no issue tried or determined by the jury as to the lien, and the jury found for the plaintiff on the issue joined as to the indebtedness, it was held that the court did not err in recognizing the lien in the judgment and in directing a special execution to issue to satisfy the same. Ib. |