1. The proper mode of taking advantage of a defective affidavit, or
bond, on a writ of attachment, is to move to quash the writ.
2. An appearance of defendant to obtain a continuance to traverse the
issue of fact is a waiver of a plea in abatement to the writ.
Hotchkiss v. Thompson, 156.
3. There is no authority for issuing a capias, merely that it may act as
the basis for an attachment, when the defendant is already in court.
And a motion to quash the same may be made after a plea in abate-
ment to the attachment.
Darlington v. Irwin, 421.
4. Where there is a plea in abatement to the jurisdiction of the justice
of the peace who tried the cause below, and the parties afterwards
go to trial on the merits, without any disposition being made of the
plea, the defendant pleading it cannot reverse the judgment because
the plea was undisposed of.
Starr & Burgess v. Wilson, 438.
5. If a defendant wishes to take any advantage of a plea in abatement,
he should call it up before going to trial.
ib.
6. Where an attachment bond and the declaration set out the plaint-
iff's name as Henry, and the writ of attachment ran in the name of
Hezekiah Musgrave, it was properly quashed.
Musgrave v. Brady et al., 456.
1. The action of Account is obsolete, and cannot legally be brought in
Iowa.
Stuart v. Kerr, 240.
2. A plaintiff in an action of assumpsit, founded upon a book account,
is not allowed upon his own motion to introduce his books of entry
as evidence in his own behalf.
Lowe & Hickok v. Ganby, 281.
3. Our statutes in relation to this species of evidence have changed the
rules, which at common law allowed a party to testify to their cor-
rectness, as charged in the demand, or set off.
1. Where actions on the case are mentioned in general terms, assump-
sit is included.
Maltby & Bolls v. Cooper, 59.
2. The action of forcible entry and detainer is not the proper action for
trying titles of any description.
Settle v. Henson, 111.
3. The writ of right does not lie to recover the possession of a
"claim."
Doolittle v. Harrington, 226.
4. Action of Account obsolete (see Account),
5. The action of trespass quare clausum fregit, being local, must be in-
stituted in the county where the trespass was committed.
6. The action of debt lies by the assignee of a promissory note against
the maker.
Phillips v. Runnels, 391.
7. The assignee may sue in his own right, and may maintain the same
kind of action as the payee might have maintained.
ib.
8. A guardian cannot maintain an action against an administrator for a
failure to perform an order of the probate judge.
Anderson v. Cameron et al. 436.
1. The statute which allows guardians the right to demand, sue for,
and recover all money belonging to their wards, from executors and
administrators, as soon as the same may be collected, does not author-
ize them to institute suit in their own names upon administrator's
bonds for a failure to perform the orders of a probate judge.
Anderson v. Cameron et al. 436.
1. The rule which excludes testimony in relation to communications
made to counsel, has never been extended further than to embrace
disclosures made to practicing attorneys for obtaining professional
advice.
Pierson v. Steertz, 136.
2. The exemption must be confined to cases of strict professional inter-
ib.
3. It is not the province of the Supreme Court to give advice to the
District Courts.
Long v. Long, 381.
1. An affidavit for an attachment may be amended as well as to sub-
stance as form.
Jackson v. Butler & Fletcher, 230.
1. A brother and sister must each be over the age of sixteen years to
incur the guilt of incest.
United States v. Hiler, 330.
1. If A draw a bill on B, payable to the order of C, appending the word
"Agent," without stating for whom he is agent, he is personally lia-
ble; and in an action brought by C against the drawer and acceptor,
A is an incompetent witness to prove his agency, or the genuineness
of letters going to establish such agency, and the liability of the de-
fendants.
Webb & Thruston v. Mauro, 488.
1. A clerical mistake in issuing the writ in assumpsit, where the precipe
and declaration shows the action to be debt, may be corrected by
amending the writ to correspond with the precipe and declaration.
And a writ of attachment and the affidavit on which it was issued,
as auxiliary process, may also be amended.
Jackson v. Fletcher & Butler, 230.
2. On a certiorari in pursuance of the act of January 14, 1840, if the
bond is substantially defective, it cannot be amended and the defect
supplied, in the District Court. Perry & Headley v. Benner, 340.
3. The certiorari is another mode of taking an appeal. In an appeal
proper, the statute expressly gives the right to correct a defective
bond. Not so in the certiorari act; and the Court will not allow
an amendment, and enlarge the opportunity for a second jury
trial.
ib.
1. Appeals do not lie from the boards of county commissioners to the
District Courts, on account of their omitting to discharge some spe-
cific duty involving no discretion.
[county, 31.
United States ex rel. Davenport et al. v. Commissioners of Dubuque
2. An appeal lies from the District Court, although the decree was for
less than $25.00.
Burge v. Burns & Snyder, 287.
1. By an appearance and pleading, the defendant waives all defects in
Bell & Pierson v. Achison, 21.
the process and the service.
2. Where there is no return indorsed on the summons, that defect is
cured by the appearance of the defendant. Hall v. Biever, 113.
3. An appearance of a defendant to obtain a continuance to traverse
the issue of fact, is a waiver of the plea in abatement to the writ.
Hotchkiss v. Thompson, 156.
4. The appearance by attorney and filing a plea with another defend-
ant, dispenses with the necessity of service of process, and is a
waiver of all objections on that score.
Lorimier et al. v. Bank of Illinois, 223.
5. Where a defendant appears by his attorney and consents that a judg
ment may be entered against him, with stay of execution, &c. it is
a waiver of objections to the jurisdiction of the Court, and of any ir-
regularity in the mesne process.
Switzer v. Gowdy, 248.
6. If a defendant, on the back of the declaration, waives service and
agrees to enter an appearance at the first term, he is estopped from
a motion to dismiss the case for the want of a summons formally
issued.
Humphreys v. Humphreys & Co. 359.
7. Where the transcript of the justice of the peace shows an appear-
ance by attorney, on a motion to quash the attachment, it will be re-
garded as a general appearance, and the defendant will be estopped
from a motion to dismiss the cause when taken to the District Court
on an appeal.
Deshler v. Foster, 403.
1. In an action of assumpsit upon promises made subsequent to an
award, and in conformity therewith, parol testimony to prove that
other matters than those contained in the written submission, were
submitted to the arbitrators, is admissible. Dice v. Yarnd, 241.
1. The omission in the record of an arraignment is sufficient grounds
to reverse a judgment.
Powell v. The United States, 17.
1. If in an indictment it be charged that the assault was made with an
are, the Court will infer that it was made with a "deadly weapon.”
Dollarhide v. United States, 233.
ASSIGNEE, ASSIGNMENT, &c.
1. Where a note, made payable to "A B or order," is endorsed in blank,
the holder may sue in his own name; or he may sue in the name of
A B, to his own use. But in this case any defense available against
A B may be set up against the holder of the note.
Temple v. Hays & Hendershott, 9.
2. Where suit is brought in the name of the payee for the use of the
endorsee of a promissory note, the maker may set up want of con-
sideration.
Long v. Long, 43.
3. The holder of a note endorsed in blank has a right to sue in the name
of the blank endorser for his use.
Gray v. Phillips, for the use of Kenedy, 430.
4. Where an assignment was valid at the time it was made, the trans-
action will not be effected by a subsequent statute, prescribing a dif-
ferent mode of assignment, although such statute was passed prior to
the institution of the suit.
Creighton v. Gordon, 41.
5. In action by the payee of a note not negotiable, for the use of the as-
signee, it is not necessary to set forth the assignment, either in the
declaration or in the copy of the note, such endorsement being only
a piece of evidence.
Hickok & Ross v. Labussier, for the use of Huner, 115.
6. An assignee of a note may sue in his own name, although part of
the amount be assigned to him. Cochran & Ober v. Glover, 151.
1. The process of attachment is merely auxiliary, and intended in cer-
tain cases to seize the property of the defendant and hold it liable
to the result of the suit. When judgment is rendered, the efficacy
of the writ of attachment is expended. Carothers v. Click, 54.
2. However defective, therefore, the affidavit or bond may be, upon
which the writ was issued, judgment on that account will not be re-
versed.
ib.
3. The proper mode of taking advantage of such defects is to move, at
the proper time, to quash the writ of attachment.
ib.
4. Where, by publication, a defendant in attachment is required to ap-
pear and plead by the next term, this refers to the next general term,
provided a special term has not been duly ordered at the time of the
publication.
Wilkie & Tuller v. Jones, 97.
5. Attachment being a violent remedy, the law is to be strictly con-
strued.
ib.
6. Where there is a personal service, but judgment is rendered on the
attachment and publication, it should be entered in rem, and not in
personam.
7. There is no authority for issuing a capias, merely that it may act as
the basis for an attachment, when the defendant is already in Court.
And a motion to quash the same may be made after a plea in abate-
ment to the attachment.
Darlington v. Irwin, 421.
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