if all the parties had joined in said appeal or writ

of error.

friend.

SEC. 40. Hereafter minors may bring suits in all Minors may cases whatever by any person that they may select as sue by next their next friend, and the person so selected, shall file a bond with the clerk of the district court, or justice of the peace, before whom the suit may be brought, acknowledging himself bound for all the costs that may accrue and legally devolve upon such minor; and after bond shall have been so filed, said Bond required suit shall progress to final judgment and execution for costs. as in other cases.

in different

counties.

SEC. 41. That in any species of personal actions in Proceedings law or equity when there is more than one defend- where defendant, the plaintiff commencing his action where either ants reside of them reside, may have a writ or writs issued, directed to any county or counties where the other defendants, or either of them, may be found: Provided, That if a verdict shall not be found, or judg- Proviso. ment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action.

SEC. 42. Interpreters may be sworn truly to inter- Interpreters. pret when necessary.

SEC. 43. No declaration shall hereafter be consid- Sci. Fa. to reered necessary to be filed in any scire facias to re- vive judgment, vive a judgment.

Narr. not re

quired.

SEC. 44. That when any person, holding a bond or Filing bond or note for the direct payment of property or money, note, &c. shall desire to put the same in suit, he may do so by filing with the clerk of any district court having

jurisdiction thereof, together with a petition pur- And petition. porting as follows:

District Court,

County, Iowa Territory.

sct.

A. B., plaintiff, states that he holds a bond, or Form. note, (as the case may) on the defendant, C. D., in substance as followeth: (here insert a copy of the bond or note), yet the same debt remains unpaid, wherefore he prays judgment for his debt and damages for the detention of the same, together with his

costs.

SEC. 45. If the plaintiff shall hold the bond or note Assignment of as indorsee, then after reciting the bond or note, say bond or note. on which is the following assignment: (recite the assignment) whereby the plaintiff hath become the

Summons and

and service.

Time of ser

proprietor thereof, of which the defendant hath had due notice.

SEC. 46. A copy of the petition shall be sent out petition, their with the summons annexed thereto, requiring the requirements defendant or defendants to appear and answer the said demand on the first day of the succeeding term, which shall be executed by the sheriff by delivering a copy of the petition and summons to the defendant, and each of them, if there be more than one. SEC. 47. The sheriff or other officer, in his return, vice and its ef- shall note the day on which it shall have been executed; and whenever it shall appear therefrom that it was executed ten days or more before the return day, judgment shall be rendered at the first term, subject to be continued on affidavit, as provided in this act, but if the process shall not have been executed ten days before the sitting of the court to Continuance. which the same is made returnable, a continuance shall be entered, unless a trial shall be had by consent of parties.

fect.

Petition equal SEC. 48. The said petition shall stand in the place to declaration. of a declaration, the defendant or defendants may appear and plead, and then an issue may be joined as in actions of debt on such bond or note; but if the defendant or defendants shall not appear and plead, Judgment by the plaintiff may take judgment by default, as in other cases.

default.

Defects after verdict, how cured.

quired.

SEC. 49. After verdict, the act of jeofails shall apply as in actions of debt heretofore; nothing herein shall prohibit any person who shall choose so to do, from suing in the ordinary way, and the fees shall be the same as in other cases.

Election of remedies. Holding to bail SEC. 50. When a petition shall have been filed ac-affidavit re- cording to the provisions of this act, and on affidavit to hold to bail as herein provided, there shall be issued by the clerk a capias and an order to hold to bail, as is now or may be provided by law. In such cases the affidavit shall be in substance as follows: Territory of Iowa,

Form.

Acknowledg

ment, before whom taken.

county.

SS.

A. B., plaintiff in the above petition, maketh oath and saith, that he has a real, subsisting, and unsatisfied cause of action set out in the above petition, and amounts to the sum of —; and further, that the deponent will be in danger of losing his debt unless. the defendant be held to bail. Signed, A. B.

Sworn to and subscribed before me at my office, this — day of A.D. G. W. H., Clerk.

Which affidavit may be made before the clerk of the district court, or any justice of the peace of the

proper county.

SEC. 51. This act to take effect and be in force This act, when from and after the first day of May next.

APPROVED, January 25, 1839.

to take effect.

PROMISSORY NOTES.

AN ACT relative to promissory notes, bonds, due bills, and other instruments of writing.

to their pur

port.

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That all pro- Bonds, notes, missory notes, bonds, due bills, and other instruments &c., shall be taof writing, made by any person, body politic, or cor- ken according porate, whereby such person, or persons, promise to pay any sum of money, or articles of personal property, or any sum of money in personal property, or acknowledge any sum of money, or articles of personal property to be due, shall be taken to be due and payable to the person to whom the said note, bond, bill, or other instrument of writing is made; and any Assignment such note, bond, bill, or other instrument of writing, thereof, and its made payable to any person, shall be assignable, by effect. endorsement thereon, under the hand of such person and of his assignee in the same manner as bills of exchange, so as absolutely to transfer and vest the property thereof in each and every assignee successively; and any assignee to whom such sum of money, or personal property is, by such endorsement, made payable, or in case of the death of such assignee, his Suits for the executor or administrator, may, in his name, institute recovery of the and maintain the same kind of action for the recov- money or property promised ery thereof, against the person who made and exeand the right cuted any such note, bond, bill, or other instrument of action hereof writing, or against his executor or administrator, in. as might have been maintained against him by the obligee or payee, in case the same had not been assigned; and in every such action, in which judgment shall be given for the plaintiff, he shall recover_his damages and costs of suit as in other cases: Provided, That the maker shall never be allowed to al- Proviso. ledge payment to the payee made after notice of such assignment, as a defence against such assignee.

SEC. 2. Every assignor, or his heirs, executors, or Due diligence administrators, on every such note, bond,bill, or other of assignee.

instrument in writing, shall be liable to the action of the assignee thereof, or his executors or administrators, if such assignee shall have used due diligence by the institution and prosecution of a suit against the maker or makers of such assigned note, bond, bill, or other instrument of writing, or against his heirs, executors, or administrators, for the recovery of the money, or property due thereon, or damages Proviso in case in lieu thereof: Provided, That if the institution of of absconding such suit would have been unavailing, or that the maker had absconded, or left the Territory when such assigned note, bond, bill, or other instrument in writing, become due, such assignee, his executor, or administrator, may recover against the assignor, or against his heirs, executors or administrators, as if due diligence by suit had been used.

obligors.

Endorsement, and the de

SEC. 3. If any such note, bond, bill, or other instrument in writing, shall be endorsed, after the day on fence allowed. which the money or property therein mentioned became due and payable, and the endorsee shall institute an action thereon against the maker and signer of the same, the defendant being maker and signer, shall be allowed to set up the same defence that might have been done had the said action been instituted in the name, and for the use of the person, or persons, to whom the said note, bond, bill, or other instrument in writing, was originally made due and payable.

Notice of payment to en

effect, on trial.

SEC. 4. If any such note, bond, bill, or other instrument of writing shall be endorsed, before the day dorsee, and its the money or property therein mentioned became due and payable, and the endorsee shall institute an action thereon, the defendant may give in evidence, at the trial, any money or property actually paid on the said note, bond, bill, or other instrument in writing, before the said note, bond, bill, or other instrument in writing was endorsed or assigned to the plaintiff, by proving that the plaintiff had sufficient notice of the said payment before he accepted or received such endorsement.

SEC. 5. In any action commenced in any court of law in this Territory upon any note, bond, bill, or other instrument in writing, for the payment of money or property, or the performance of covenants. or conditions by the obligee or payee thereof, if such note, bond, bill, or instrument in writing was made without a good and valuable consideration, or if the consideration upon which such note, bond,

whole, or in

part.

bill, or other instrument in writing was made, has wholly failed, it shall be lawful for the defendant against whom such action shall have been commenced by such obligee, or payee, to plead such want of consideration, or that the consideration has Want of conwholly, or in part, failed; and if it shall appear that sideration, or any such note, bond, bill, or other instrument of its failure, in writing was made without a good or valuable consideration, or that the consideration has wholly failed, the verdict shall be for the defendant, and if it shall appear that the consideration has failed in part, the plaintiff shall recover according to the justice and equity of the case: Provided, That nothing in this Proviso, as to section contained shall be construed to affect or im- time. pair the right of any bona fide assignee of any instrument made assignable by this act, where such assignment was made before such instrument became due.

ed in bar.

SEC. 6. If any fraud or circumvention be used in Fraud, or cirobtaining the making or executing of any of the in- cumvention, struments aforesaid, such fraud, or circumvention, may be pleadmay be pleaded in bar to any action brought on any such instruments, whether such action be brought by the party committing such fraud, or circumvention, or any assignee of such instrument.

time, place and

SEC. 7. In all cases, where any of the before men- Delivery of tioned instruments of writing are for the payment or personal prodelivery of personal property, other than money, perty; the and no particular place be specified in such instru- manner of tenments of writing for the payment or delivery thereof, der. it shall be lawful for the maker of any such instrument to tender, or cause to be tendered, on the day mentioned in any such instrument, the personal property therein mentioned, at the place where the obligee or payee of any such instrument resided, at

idence of par

the time of the execution thereof: Provided, how- Proviso, as to ever, If such personal property be too ponderous to the bulk of probe easily removed, or if the obligee or payee of such perty, and resinstrument had not, at the time of the execution of ties. such instrument of writing, a known place of residence in the county where the maker or makers reside, then it shall be lawful to tender such personal property at the place where the maker or makers of such instrument resided, at the time of the execution thereof. Any tender made in pursuance of this section, shall be equally as valid and legal in case any such instrument of writing shall have been