Iowa capitol reporter. [volume] (Iowa City, Iowa) 1841-1855, 1853-08-03
Supreme Court Of IOwa--June
Term, 1853.
Present; Hon. JOSEPH WILLIAMS, Chief Justice,
JoHs F.. KlssEr,t Judges.
!" GEORGE GREENE

Present; Hon. JOSEPH WILLIAMS, Chief Justice.
(" John F., KiSSEY,t y,d,os
GEORGE GRRENE} '
Thomas Crew ct al 9th D. Clinton Go.
Calvin NJ McClung.)
Decided. LIST. that in proceeding under the
attachment law, that portion Of the le4Sth Sec
ticn Of the code. which requires the petition to
state "without leaving sufficient remaining for
the payment OF his debts" applies to the case
of debtor who is about to dispose Of, or remove
his property out Of the State.
end. In "a proceeding of attachment which
requires the affiant to state that he verify be-
lieves the defendant is in some manner about
to dispose OF or remove his property out OF the
state &C. it is necessary for the plaintiff TO state
distinctly in his petition the manner" by
facts and circumstances upon which his belief
is founded. Washer D. People, Barb. SIT.
Sd. In attachment where defendant demur-
red to the plaintiff petition. as insufficient in
law to sustain the proceeding and his demur-
rer was overruled, and afterward he moved to
auash the attachment, held that such motion
was allowable to test the legality Of the pro-
4lB 81 IA 10 suthssiss M ll&Wf1 g
an attachment against defendant, when the
debt is not due, the petition must set forth, in
addition to the other requirements Of he code,
"that he refuses to make any arrangement for
securing the payment of the debt when it falls
DUE" and in case of removal (which contem-
plated removal was not known to the plaintiff
at the time the debt was contracted"
9Th. That it is error to enter judgment un-
der the attachment law, for debt not due.
Thos W. Scott } eth D. Muscatine Co.
10 : w,,a. Appeal. Reversed
Decided LIST, In action to enforce mechan-
les lien, plaintiff may bring suit on the origin
al contract, although note has been gwen
for the same aud the giving Of such note is not
| waiver of the lien.
end. Before he will be entitled to judg.
ment on the original account,the notes shout
be brought into court to be cancelled.
3. A blank endorsement of the plaintiffs
name on the back of the note and erased which
is, at the time of the proceeding in bis posses =
sion is not evidence that the note has become
the property of another by transfer.
! 4th. Such endorsement does moi operate as
a waiver Of the plaintiffs right to mechanic
lien under the code.
5th. The 9slst section Of the code, provid.
| ing for mechanics liens requires that materials
must be FUSED in the erection or repdrdtion Of d
building" in order to enti,le the person furnish.
ing them to lien, although delivered to order
but not SO 'used," the lien does not attach.
Oy,lve h St. John. J 9th d Muscatine
rs. Co. Attachment
z. washburn d son etal } Appeal. Affirmed
Decided that in a.: action on joint and sew
eral note, where the plaintiffsues the defendants
Jointly, and resorts to the writ of attachment as
auxiliary, to secure his debt, such writ mus
follow the principal action.
End. That after such action is commenced
and proceeding to trial, the plaintiff will no
be allowed to amend SO as to enable him u
proceed by attachment, against one of the de
PENDANTS only.
Francis REILLY, J 9Th D. Mucatine CO
Us. Mechanics lien. Re
John c B Warde. versed.
Decided that where labor has been performe
in the building Of house. in compliance wit
the terms of a contract, which provided ths
such labor was to be paid for in land to be Ell
tered for plaintiff by defendant. which Day
ment was not made agreeable to the contrac
the plaintiff is entitled to mechanics lien vi
der the code.
Benjamin Roop,) Sd D. Mahaska county.
w. s os. Appeal Reversed
Decided, LIST. Plaintiff instituted hisactie
upon joint liability by promissory note
against the defendant. Held that where Il
, note is purely joint, it is error to bring su
against one of the joint promissors.
2. Where the cause Of action accrued upo
written contract, but was not barred by Il
revised Statute of ls43. at the time when IL
3 Code took effect, and where the time of limits
u ton is enlarged BY the provisions of the Cod
has run half the time prescribed by the COO
viz; five years.
Hugh W Sample ct all Sd D. Jefferson count.
: Us : Appeal. Reversed.
/, Andrew j. Davis.
/ Decided. that the sureties in sheriff s bon
are not liable for money received by him Il
=, the pur pose of redeeming lands sold on ex
. cution, although receipted for in his ofiicl
capacity. when such money by requirement
/, of law should have been paid to the clerk OF Il
district court.
Hosea Hall. J Sd D Jefferson Co.
ps ; Writ Of Error. A
The State Of Iowa. 6rmed.
Decided that where the record ofthe Distri
. Court in a criminal case. shows that the indi,
ment was found and presented by the graz
e Jury, such a finding cannot be impeached
( allegations and afidavits, dehors the record,
y to the number Of jurors who participated IN t
:. fading of the bill.
J "''A'n a Is ''A Appeal. Aiiirms
:, Thos. H Benton Jr.
a Decided, that the annual compensation
be allowed school fund commissioner, unt
n the code by the clerk, sheriff and prosecuti
il attorney. is subject to the approval Of the
perinteudent of Public Instruction, and
him may be increased or reduced.
: Nathan L Milburn etai, Sd Jefferson Co
us. Appeal. Reversed
nv Benz. P Marrow ct al
s. Decided. LIST. Where property has been
ar tached by the sheriff and expenses incu FRED
II keeping the same. either by himself or othe
MS to whose care it may have been committed. a
" the defendant afterwards gives bond for
o. delivery thereof, he is entitled to the immedi
ke possession of the property without first pay
such expenses.