Entered according to Act of Congress in the year 1847, by

EASTIN MORRIS, In the Clerk's Office of the District Court of the District of Iowa.

Entered according to Act of Congress in the year 1870, by

GRIGGS, WATSON & DAY, In the office of the Librarian of Congress, at Washington.

LIBRARY OF THE
KELAND STANFORD, JR., UNIVERSITY

LAW DEPARTMENT.

PREFACE.

This volume contains all the cases argued and determined in the Supreme Court of the territory of Iowa from the organization of the Court down to January term, 1846, in which opinions have been filed.

When the reporter contracted with the publisher it was presumed that this volume would contain full reports of all the cases down to the reorganization of the Court under the state authorities; but in this he has been disappointed. Of the cases decided in 1846, nearly the whole are una. voidably excluded. The reporter has, however, given three important cases in full, and briefs of the remaining ones, with the exception of a few, in which the opinions were incomplete, or could not be found; and which, with other cases of 1846, will be reported for the next volume.

The reporter owes an apology to the pablic, and especially the members of the Iowa bar, for the delay in bringing out these reports; but in all candor he can say he could not avoid it.

He tenders his respectful thanks to Chief Justice Mason for reports, corrections, and memorandums of all the cases decided prior to January term, 1843.

Iowa City, 1847.

75953

PREFACE TO THE SECOND EDITION.

When the original volume of these reports was published, in 1847, the legal profession of the then territory of lowa was very limited in number, consequently a very small edition was published. At the present time our young state contains a population exceeding one million, and is rapidly increasing. The members of the legal profession in Iowa at the present time, almost equal her voting population of 1847.

The original volume has long been out of print, and but a small proportion of the profession are supplied with copies of it. A re-print, therefore, seemed to be a necessity.

The publishers having purchased the unexpired copy right, determined upon a re-print, with notes and references to subsequent decisions and legislation. In order that the re-print should correspond with subsequent volumes of the Iowa Reports, larger type and superior paper to that used in the original, has been used, which, together with the notes and references, have materally swelled the size of the volume. The original paging, however, has been preserved in the margin, and the index refers to the marginal pages.

The work of preparing the notes and references has been performed by the editor in the intervals of judicial labor ; whether it has been well done, he submits to the judgment of the profession.

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SUPREME COURT OF IOWA.

a

The Supreme Court of Iowa territory was constituted by the act of Congress of June 12, 1838, entitled “ An act to divide the territory of Wisconsin, and to establish the territorial government of Iowa.” By this organic law, it was provided that the judicial power of the territory of Iowa should be vested in a Supreme Court, District Courts, &c. That the Supreme Court should consist of a chief justice and two associates judges, any two of whom should be a quorum, and who should hold a term at the seat of government of the said territory, annually. And that they should hold their offices for the term of four years. The act also provided that the territory should be divided into three judicial districts, and that a District Court or Courts should be held in each of the three districts by one of the judges of the Supreme Court, at such times and places as might be prescribed by law; and that the judges should; after their appointment, respectively reside in the districts assigned them. That the jurisdiction of the several Courts provided for, both appellate and original, and that of the probate Courts and of the justices of the peace should be as limited by law, &c. The Supreme and District Courts, respectively, were vested with a chancery as well as a common law jurisdiction; and writs of error, bills of exception, and appeals in chancery causes were to be allowed in all cases,

from the final decisions of the District Courts to the Supreme Court, under such regulations as might be prescribed by law. But that in no case removed to the Supreme Court, should trial by jury be allowed in said Court.

It was further provided that writs of error and appeals from the final decision of the said Supreme Court should be allowed and taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property or the amount in controversy to be ascertained by the oath or affirmation of either party, should exceed one thousand dollars. And that each of the said District Courts should have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States. And that writs of error and appeals from the final decision of the said Courts, in all such cases, should be made to the Supreme Court of the territory, in the same manner as in other cases.

Under this act, the president, by and with the advice and consent of the Senate, nominated and appointed Charles Mason, chief justice, and Joseph Williams and Thomas S. Wilson, associate judges; who were continued in office, by re-appointment, until the organization of the state government; and presided during the period embraced in these reports.

By the constitution of the state of Iowa, the judicial power is vested in a Supreme Court, District Courts, and such inferior Courts as the General Assembly may from time to time establish. The Supreme Court, consisting of a chief justice and two associates; to be elected by joint vote of both branches of the General Assembly, and to hold their offices for six years.

The constitution also provided in the schedule, that all officers, civil and military, then holding their offices and appointments in the territory under the authority of the United States, or under the authority of the territory, should continue to hold and execute their respective of fices and appointments until superseded under the constitution.