ner five days' notice, in writing, of his, her, or their Notice. intention, may apply to the court for relief: and it

shall be the duty of the court, on proof by affidavit Duty of court, of the delivery of such execution, if the same be not returned, or on proof that such money has been collected and not paid over, to grant an order against To grant an such sheriff or coroner, requiring him to make im- order. mediate return of such execution, or if the amount,

or any part thereof has been collected, to pay over the same immediately, with twenty per cent. thereon Its requirefrom the time of collection till paid, and on failure ments. of such sheriff or coroner to comply with such order, on demand, and being served with a copy of the order, he shall be judged to be in contempt, and Contempt, and punished accordingly; or the plaintiff in such execu- punishment. tion may have judgment for the money, with twenty Remedy modiper cent. thereon so collected, and have execution as in other cases: Provided, That in such cases, no stay Proviso. of execution shall be granted.

fied.

SEC. 30. The clerk shall enter, in a book to be kept Duty of clerk, by him for the purpose, the return of the sheriff or as regards recoroner of all executions within thirty days after the turn of execusame shall be returned, under the penalty imposed in Penalty. the twenty-eighth section of this act.

tions.

when allowed.

SEC. 31. Appeals from the district court to the Appeals from supreme court of this Territory shall be allowed in all district to sucases when the judgment or decree appealed from be preme court, final, and shall amount, exclusive of costs, to the sum of twenty-five dollars: Provided, Such appeals be Proviso. prayed for at the time of rendering the judgment or decree, and provided the party praying such appeal shall, by himself, agent, or attorney, give bond, with Bond and sesufficient security, to be approved by the court, and curity. filed in the office of the clerk; which bond shall be in Condition. a reasonable sum, sufficient to cover the amount of the judgment appealed from, and all costs, interests, and damages, in case the judgment shall be affirmed;

and also for the due prosecution of said appeal, and Forfeiture and the obligee in such bond may at any time on a breach remedy. of the condition thereof, have and maintain an action at law, as on other bonds.

SEC. 32. The appellant shall lodge in the office of Record authenthe clerk of the supreme court, an authenticated copy ticated and of the record or decree appealed from by or before filed. the third day of the next succeeding term of said supreme court: Provided, That if there be not thirty Proviso, as to days between the time of making the appeal and the time. sitting of the court, then the record shall be lodged

Dismissal.
Exception.

Execution awarded, or record remand

ed.

Supersedeas,

dition.

as aforesaid, at or before the third day of the next succeeding term of the supreme court; otherwise the said appeal shall be dismissed, unless further time to file the same shall have been granted by the supreme court, upon good cause shown.

SEC. 33. In all cases of appeals and writs of error, the supreme court may give final judgment and issue execution, or remand the cause to the district court in order that an execution may be there issued, or that other proceedings may be had thereon.

SEC. 34. No writ of error shall operate as a superhow granted. sedeas, unless the supreme court, or some justice thereof, in vacation, after inspecting a copy of the record, shall order the same to be made a superBond and con- sedeas; nor until the party procuring such writ shall file a bond in the manner and with the condition reDuty of clerks. quired in cases of appeals; when the clerk issuing such writ shall endorse thereon that it shall be a supersedeas and operate accordingly, and the parties Judgment and in writs of error shall be subject to the same judgment and mode of execution as is provided in cases of appeals.

execution.

Difference of opinion.

Charge of dis

fined to law. Scrawl equal to seal.

SEC. 35. Whenever the supreme court shall be equally divided in opinion on hearing an appeal or writ of error, the judgment of the court below shall stand affirmed.

SEC. 36. The district courts in charging the jury, trict court con- shall only instruct them as to the law of the case. SEC. 37. That any instrument of writing to which the maker shall affix a scrawl by way of seal, shall be of the same effect and obligation to all intents as if the same was sealed: Provided. The seal be referred to in the body of the instrument.

Proviso.

Incompetent witnesses.

Non-joinder in

of error, not

to affect pro

ceedings there

on.

SEC. 38. A negro, mulatto, or Indian, shall not be a witness in any court or in any case against a white person.

SEC. 39. That in all cases where a judgment or deappeal or writ cree shall be rendered in any district court in any case whatever, either in law or chancery, against two or more persons, either one of the said persons shall be permitted to remove said suit to the supreme court by appeal or writ of error, and for that purpose shall be permitted to use the names of all of said persons, if necessary; but no costs shall be taxed against any person who shall not join in said appeal or writ of error. And all such cases shall be determined in said supreme court as other suits are, and in the same manner that it would have been

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 revive a judgment.

vive judgment, Narr. not required.

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

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 and service. 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 exefect. cuted; 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.

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.

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 exe- and 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.