INDEX. ACTION OF ASSUMPSIT. The limitations to suits in actions on the case includes actions of assump- APPEALS. use The appeals authorized by statute from the decisions of the County Com- The bond required by statute authorizing appeals must be filed in court. APPEARANCE. Appearance of dft. is waiver of all objection for want of service. Cane et al. vs. Watson, p. 44. ATTACHMENT. The writ of attachment is not an independent proceeding, but auxiliary to the original suit. No special judgment against the property is necessary. Carothers vs. Click, p. 61. p. 28. BILLS OF EXCHANGE AND PROMISSORY NOTES. Notes payable to bearer are transferable by delivery. And possession is The Iowa Stat. makes a note negotiable when it is not expressed to be BILLS OF EXCHANGE AND PROMISSORY NOTES—Continued. The statute making all notes negotiable cannot be applied to notes made and assigned before the stat. Harlan et al. vs. Sigler, p. 54. It may however have effect to allow assignee to bring suit in his own name. Ib. 54. The agency of a notary public in presenting for payment and protesting for non payment in case of promissory notes and inland bills of exchange is not necessary. Smith vs. Ralston, p. 67. CONSIDERATION. The Legislature may by statute control the rule of law that illegality in They may therefore declare that a certain species of illegality in the consid- If before the stat. of 1836 the sale of improvements on the public lands Part failure of consideration is good defence pro tanto. Griffey, apt., vs. The transfer of an absolute property is not necessary to constitute a val 31. Long In debt on promissory note no notice or plea of want of consideration is In suits by assignee on instruments not negotiable, want of consideration CONSTRUCTION OF STATUTES. If practicable different parts of the same statute must receive such an interpretation, that they may both exist together: but if they are wholly irreconcileable, the latter becomes paramount. United States on relation of Davenport, petin. for mandamus, p. 11. Where the two parts of a statute cannot be wholly reconciled it is the duty of the court to give them such a construction as shall render the discrepancy as small as possible. This will be done by limiting the issuing of the writs enumerated to such cases as may be "necessary" to enforce the due administration of right and justice throughout the Territory.lb. p. 11. It is to be presumed that our Legislature in following the phraseology of the English statutes regulated its intentions by the construction which the English Courts have given to their statutes. Maltby et al. use of Wheatley vs. Cooper, p. 56. CONTRACTS. Where an act is absolutely prohibited by statute, or is contrary to public policy, all notes given in furtherance of the execution of such act are void. But where the statute merely fixes a penalty, contracts in rela❤ tion to matters which subject the maker to that penalty are not on that account invalidated. Hill vs. Smith et al., p. 23. There is nothing in the sale of improvements on the public lands, which, independent of the statute, should render the contract void for illegality. Ib. p. 23. The act of Congress of 1807 does not absolutely forbid the occupancy of the public lands, but merely attaches a penalty thereto. Subject to this penalty any person has the same right to occupy or traffic in the public lands as though the act had not passed. lb. p. 23. A contract for the sale of improvements on the public lands is not void for illegality. lb. p. 23. DEMAND. In an order for the delivery of a specific article which cannot attend the person of the debtor, the plaintiff must make and set out a demand at the residence of the debtor. McKnight vs. Birhap use of Hooper et al. p. 65. DISTRICT COURTS. The District Courts are vested to the fullest extent with general original jurisdiction in matters civil as well as criminal, and both at law and in equity. They have power to issue mandamus. U. States on relation of Davenport, petin. for mandamus, p. 12. ERROR. The Court would never disturb a judgment on account of an error clearly Defective affidavit, though it might have been successfully objected to by Ib. p. So also with a defect in the form of a bond. EVIDENCE. 61. Endorser of a note, being payee, is competent as a witness for endorsee, to prove that the note was transferred before due andfor a valuable consideration. Strang vs. Wilson, p. 35. GARNISHEE. The maker of a negotiable instrument cannot be liable as garnishee, unless the instrument has become duc and is proved to be in the hands of the defendant. Jefferson County vs. Fox et al. p. 50. INDEB. ASSUMPSIT. The Court will not permit the plaintiff to recover on the common counts unless there is sufficient evidence to warrant such a recovery indepen dent of any special agreement. Lorton vs. Agnew, p. 59. Where a contract has been rescinded, money paid thereon may be recovered on the common counts. lb. p. 60. INFANCY. On a plea of infancy to promissory note made in Illinois, it is not necessary for defendant to prove that according to the laws of Illinois he would have been discharged from the payment of said note. Holmes & al. vs. Mallet, p. 46. Defendant could not be compelled to pay contract made in infancy unless ratified after he became of age. Ib. p. 46. JURISDICTION. The District Courts are vested to the fullest extent with general original jurisdiction in matters civil as well as criminal and both at law and in equity. They have power to issue mandamus. United States on rela tion of Davenport, petin. for mandamus, p. 12. The exercise of that power by the Supreme Court, being in ordinary cases unnecessary, it has in such cases no jurisdiction. Ib. p. 13. LIMITATIONS. The statute limiting time of bringing writs of error applies to criminal as well as to civil cases. Fike vs. U. S., p. 47. Statutes of limitation relate to the remedy, and not to the substance of the contract. Maltby & al. use of Wheatley vs. Cooper, p. 56. They may therefore be made to operate on prior contracts without impair- The limitation to suits in actions on tne case includes actions of assumpsit. MANDAMUS. Mandamus generally issues to compel a public functionary to perform some specific duty. It will never be granted where there is any other adequate remedy. U. States on relation of Jas. Davenport, peti. for mandamus, p. 9. The general purpose of a mandamus is to prevent disorder from a failure of justice or defect of police, rather than to afford a private remedy. lb. p. 10. Courts of merely appellate jurisdiction cannot issue writ of mandamus except in aid of their appellate powers. lb. p. 10. The District Courts are vested to the fullest extent with general original jurisdiction, in matters civil as well as criminal, and both at law and in equity. They have power to issue Mandamus. Ib. p. 12. The exercise of the power of issuing mandamus by the Supreme Court being in ordinary cases unnecessary, it has in such cases no jurisdiction. lb. p. 13 NEGOTIABLE INSTRUMENTS. A bond for the absolute payment of money is a negotiable instrument.- In suit on such bond by assignee, defendant cannot avail of payments made to obligee before assignment, unless he prove that plaintiff had notice of such payment before assignment. b. p. 49. The maker of a negotiable instrument cannot be liable as garnishee, unless the instrument has become due and is proved to be in the hands of the defendant. Ib. p. 50. The statute making all notes negotiable cannot be applied to notes made and assigned before the statute. Harlan et al. vs. Sigler, p 54. It may have effect however to allow assignee to bring suit in his own name. Ib. p. 54. NOTICE. Assignee of negotiable instrument is not bound to give notice of assignment to obligor in order to cut off obligees right to receive payment.— Jefferson County vs Fox et al. p. 50. PARTNERSHIPS, Under the stat. Jan. 4, 1839, relating to promissory notes, it is sufficient to prove the existence of a partnership and its style, and not necessary to prove the individual names of the partners. Ballard vs. Ridgely et ul. p. 13. PLEADING. Illegality of consideration cannot be given in evidence under genl. issue. A plea put in before an amendment to declaration cannot be considered as In debt on promissory notes no notice or plea of want of consideration is necessary to enable defendant to give evidence of that fact in his defence. Long vs. Long use of Walling, p. 38. In a plea of nil debet to action on specialty plaintiff cannot take judgment as for want of plea. Sleeth vs. Cutler, admr. p. 51. Where a mere simple contract is the foundation of the action, the plaintiff must allege a consideration. McKnight vs. Birhap use of Hooper et al. p. 65. In an order for the delivery of a specific article which cannot attend the person of the debtor, the plaintiff must make and set out a demand for the specific article at the residence of the debtor. lb. p. 65. PRACTICE. Under the stat. Jan. 4, 1839, relating to promissory notes, it is sufficient to prove the existence of a partnership and its style, and not necessary to prove the individual names of the partners. Ballard vs. Ridgely & al, p. 13. |