It was INGS. V. DEFENSES. and wrongful taking and detention of one yoke form and seal. McNorton v. Akers, 24 Iowa, 43. In replevin the wrongful detention is the gist of the action, and a failure to allege it in the petition may be taken advantage of by demurrer, in arrest, or upon error. Draper v. Ellis, 12 Iowa, 316. 44. Petition must be verified. The petition in replevin must be verified in order to authorize the issuing of the writ. Cure v. Wilson, 25 Iowa, 205. 51. In an action of replevin against a sheriff the defendant may justify under a writ not returned to the district court at the time of the commencement of such action when the time within which he was required to make such return had not then expired. Kingsbury v. Buchanan, 11 Iowa, 387. 52. That the legal title to the property in controversy is in a third party is not a sufficient defense to an action of replevin when the plaintiff claims in his petition only the right of pos session. Corbitt v. Heisy, 15 Iowa, 296; Reed v. Reed, 13 Ibid. 5. 53. A defendant in an action of replevin cannot and did not claim any interest in property at 45. Estoppel. An allegation in the petition in replevin, that the defendant was in posses-be made liable when he is not in possession of, sion of the property in controversy, estops the plaintiff from denying the possession of defendant at the time of the commencement of the action. Kingsbury v. Buchanan, 11 Iowa, 387. 46. Sufficient if in language of the statute. The allegations of a petition in replevin are sufficient if in the language of the statute; and the denial thereof raises an issue which is divested of the technical effects that followed pleadings in replevin at common law. Jansen et al. v. Effey, 10 Iowa, 227, approved and followed in Wilkins v. Treynor, 14 Ibid. 391. 47. Evidence. Where, in replevin, the defendant justifies under an execution in his hands as constable, proof of the taking is unnecessary. Perkins v. Wisner, 9 Iowa, 320. 48. The sufficiency of evidence to sustain a verdict in replevin considered and determined. Moore v. Devol et al., 14 Iowa, 112. 49. of fraud. Evidence showing that the title of the plaintiff in an action of replevin, to the property in controversy, was acquired through a fraudulent sale, was inadmissible when no allegation of fraud was set out in the pleading. Gray v. Earle et al., 13 Iowa, 188. 50. Lost writs of attachment. In an action of replevin, against attaching creditors whose writs of attachment have been lost, they will be entitled to all the benefits they would have been by having the writs themselves, if their existence and loss be proven; and proof that they were duly issued by the proper officer is prima facie evidence of their sufficiency as to 54. The objection in an action of replevin to 55. Right to recover where possession is re- Defenses - The Bond and Action thereon. action against R., and claimed judgment for the value of the goods, which it was found belonged to them. Held, the possession of the goods having been restored to them under the writ issued in the second action of replevin instituted by them, although they lost it again under the writ issued in the third action instituted by H., that they were not entitled to recover for the value of the goods as intervenors in the first action against R. Ibid. 57. Held, also, that R. was not entitled in the first action against him to recover for the value of the goods, as, being a partner of the firm of R. & Co., their possession, acquired under the writ issued in the action commenced by them, operated in contemplation of law as his possession. lease the property from the lien of the execution. Gimble v. Ackley et al., 12 Iowa, 27. 63. Replevin bond executed by guardian. A guardian sued out a writ of replevin for his wards, but executed a replevin bond in his individual capacity. Held, that he was liable as an individual on the bond. Oliver v. Townsend et al., 16 Iowa, 430. 64. Bond payable to administrator. A replevin bond filed in an action concerning the property of an intestate was made payable to the administrator in his individual, and not his representative capacity. Held, that the administrator could elect to sue, either individually or in his representative capacity, and take payment accordingly. Ibid. 65, Election of remedy. The defendant in an action of replevin may recover his damages in the main action, or he may maintain a sepa rate action therefor on the bond. Hall v. Smith et al., 10 Iowa, 45. Where property 66. Measure of damages. taken in execution was taken from the sheriff by replevin, the measure of the defendant's damages, upon the failure of the plaintiff to prosecute successfully the action of replevin, is the balance due him as execution plaintiff, with interest and costs. Hayden, for the use of Adams, v. Anderson et al., 17 Iowa, 158. 67. In an action of replevin against a sheriff, it is not competent for the plaintiff to show, for the purpose of fixing his damages, that he was compelled to deposit with his surety on the replevin bond a sum of money as indemnity. Wil son v. Hillhouse, 14 Iowa, 199. 68. Evidence. In an action on a replevin bond, the petition and other papers in the replevin suit are competent evidence to sustain the action on the part of the plaintiff. McGinnis v. Hart, 6 Iowa, 204; see Keys v. McNulty, 14 Ibid. 484. 69. Judgment on replevin bond. A judgment against the surety on a replevin bond is, prima facie, the measure of his damages in an 61. Liability of surety in replevin bond. A surety in a replevin bond is not liable to the attorney or principal for services rendered at the request of such principal, in the absence of any evidence showing that the surety had em-action against the obligor in a bond executed to ployed such attorney. Turner v. Myers, 23 Iowa, 391. indemnify him for becoming such surety. Lyon v. Northrup, 17 Iowa, 314. 62. Effect of replevin bond. Where property 70. The judgment in an action of replevin taken in execution was replevied in an action by was to the effect that the plaintiff was enthe execution defendant, and sold to a bona fide ¦ titled to the possession of the property in conpurchaser, it was held that as to such purchaser troversy." Held, in an action on the replevin the filing of the replevin bond operated to re-bond, that evidence showing that the plain Verdict, Judgment and Damages. tiff was not the owner of the property, was admissible for the purpose of determining the measure of damages. Hawley v. Warner, 12 Iowa, 42. 76. Where, in an action of replevin, the petition alleged the value of the property and that the plaintiff was the absolute owner, and the possession of the property was taken under the 71. Irregular judgment: no defense. An writ from the defendant and delivered to the irregular judgment for the value of property plaintiff, it was held, that a verdict in the foltaken in replevin, in which no order for the re-lowing form, with judgment following it, was turn of the property is made, does not change sufficiently specific: “We, the jury, find for the the liability of a surety in an action on the re- plaintiff." Newlien v. Reed, 30 Iowa, 496. plevin bond. Mason v. Richards et al., 12 JURY AND VERDICT, ante. Iowa, 73. VII. VERDICT, JUDGMENT AND DAMAGES. a. Verdict. 72. Where, in an action of replevin, the jury found for the defendant as to the right of property and the right of possession, and assessed his damages at a certain sum but did not find the value of the property replevied. Held, that the supreme court must presume that the jury were properly instructed as to the measure of damages, and that the finding of the value of the property was a matter of form. Western Stage Co. v. Walker, 2 Iowa, 504. 66 73. When, in an action of replevin, the verdict was: We, the jury, find the right of the property in the plaintiff, except $100 which was not covered by the mortgage," it was held, that the court erred in reforming the verdict and in rendering a judgment for a return by the plain tiff to the defendant of $100 worth of property, and in ordering, in default thereof, execution for that sum. Moore v. Devol et al., 14 Iowa, 112. 74. Where, in an action of replevin, the ownership and right to the possession of personal property was in issue on the allegations of plaintiff's petition, the defendant setting up no special property, and the jury returned the following verdict: "We find the ownership in the plaintiff and assess the value of the mare at $75, and the damage for the wrongful detention at $25," it was held that the form of the verdict was sufficient, and the court did not err in entering judgment thereon. Cassel v. The Western Stage Co., 12 Iowa, 47. b. Judgment. See 77. Judgment for return. In replevin the turn of the property. A judgment for the damjudgment for the defendant should order a reages alone is erroneous, unless the reasons why a return of the property is not ordered are therein stated. Funk & Hardman v. Israel, 5 Iowa, 438, explained; Jansen et al. v. Effey, 10 Ibid. 227. 78. Effect of judgment. When a judgment in an action of replevin is not rendered in a trial upon the merits and does not determine the question of title, ownership in the defendant may be pleaded and shown in an action or the bond in mitigation of damages. Buck v. Rhodes et al., 11 Iowa, 348. 79. As a general rule, the judgment in replevin, where the plaintiff fails to maintain his Chadwick v. Miller, 6 Iowa, 38; Jansen et al. v. action, should be for a return of the property. Effey, 10 Ibid. 227; Mason v. Richards et al., 12 Ibid. 73. 81. Judgment in replevin conclusive. Where the judgment in replevin determines the title to the property in controversy, it is conclusive upon the parties, and the title cannot be again inquired into, in an action on the bond. Hawley v. Warner et al., 12 Iowa, 42; Hayden v. Anderson, 17 Ibid. 158. 82. When the verdict in an action of replevin is for the defendant, judgment cannot be rendered against the principal and sureties on the bond for damages. Jansen et al. v. Effey, 10 Iowa, 227. 83. Under Code of 1851. In an action of replevin commenced under the Code of 1851, a judgment could not be rendered for defendant Judgment Damages. and against the plaintiff and the sureties on his bond. Jansen v. Effey, 10 Iowa, 228; Hurd v. Gallaher, 14 Ibid. 394. 84. Alternative judgment. But under sections 3554 and 3563 of the Revision of 1860, the defendant in replevin may, after the action is dismissed by the plaintiff, have an alternative judgment for a return of the property or the amount of his damages, against both the principal and sureties on his bond. Wilkins v. Treynor et al., 14 Iowa, 391. 85. Judgment may be rendered for money or the return of the property, at the election of the successful party, Rev., § 3563. McNorton v. Akers, 24 Iowa, 370. 86. In an action of replevin a judgment which is in the alternative, allowing to the successful party an execution for the specific property, or, in case that cannot be found, then an execution for its value, is authorized by section 3563 of the Revision. Clark v. Warner, 32 Iowa, 219. 87. A judgment in replevin was for a return of the property, and in default thereof that the plaintiff recover of the defendant $160, the value of the same. Held, that the defendant could elect to tender the property within a reasonable time, and that where a tender was made delivered by the officer serving the writ to the plaintiff. Hoover v. Rhoads, 6 Iowa, 505. 91. In rendering judgment on a verdict in favor of defendant in replevin, it is not error to allow interest on the value of the property from the time it was wrongfully taken from the defendant. Hurd v. Gallaher, 14 Iowa, 394. See, further, on the subject of damages in actions of replevin, herein, §§ 72, 73, ante, and title DAMAGES. As to pleading and evidence in such actions, see titles PLEADING; EVIDENCE; AND VERsee, also, JUDGMENT, and JURY DICT. REPLICATION. See PLEADING; PRACTICE. RESIDENCE. 1. A person ceases to be a resident of this State when he removes to another in which he fixes his domicile with the intention of remaining for an indefinite time. The State of Iowa v. Groome, 10 Iowa, 308. 2. The term "resides" and "resident," in chapter relating to Divorce, means a legal resiwithin a time which is reasonable when condence not an actual residing alone - but such sidered in connection with all the circumstances, a residence as that when a man leaves it tempothe defendant will be enjoined from enforcing rarily, or on business, he has an intention of reby execution the alternative judgment for turning to, and which when he has returned to, money. McClellan v. Marshall et al., 19 Iowa, becomes, and is, de facto and de jure his domicile. Hinds v. Hinds, 1 Iowa, 36. 561. 88. Extent of judgment against sureties. In an action of replevin for property taken under writs of attachment, judgment against the sureties can only be for the amount of debt and costs due creditors, whose attachments were issued prior to the institution of the replevin suit. Mc Morton v. Akers, 24 Iowa, 370. 89. Plaintiff replevied from the sheriff. Held, that the defendant can only recover the value of his right in the property, which cannot exceed the amount of the claims for which he held the property when replevied from him. Revision, §3562. Ibid. c. Damages. 90. In replevin, the plaintiff is entitled to recover the damages he has sustained, though the property which is the subject of the action is 3. The meaning of the words "dwell," "live," "reside," " resident," "inhabitant," "domicile,” etc., as occurring in different statutes and constitutions, very fully reviewed in Ibid. 4. The words "out of the State," and "the time of such person's absence," in the eighth section of the act approved Feb. 15, 1843, mean such an absence as entirely suspends the power of a party to commence his action by service on the defendant, in either of the methods provided by law. Penley v. Waterhouse, 1 Iowa, 498. 5. How residence in a township is gained. To gain a residence in a township, within the meaning of our election laws, the elector must have the intention bona fide of making it his home. Remaining within the township with the purpose of leaving as soon as some temporary object is accomplished, does not establish a Arrest by Peace Officer - Generally. residence. The State of Iowa v. Minnick, 15 by a creditor of the vendor, it was held compe Iowa, 123. See, further, CONSTITUTIONAL LAW; DESCENT; DOMICILE; JURISDICTION; ORIGINAL NOTICE; VENUE. REWARD. 1. Arrest by peace officers. Two peace officers arrested a criminal for whose apprehension a reward was offered, but who was actually discovered by and arrested on the information of a third party. The peace officers had received full legal fees, and retained of money found on the prisoner sufficient to pay their expenses in delivering him to the sheriff of the proper county. Held, that the peace officers were not entitled to the reward, as it was not clear from the offered reward that they were included within its terms. Means v. Hendershot & Burton, 24 Iowa, 78. ROADS. See HIGHWAYS. SALES OF PERSONAL PROPERTY. I. GENERALLY, 1008. II. REQUISITES AND VALIDITY. a. In general, 1009. b. Delivery and possession, 1010. III. BILL OF SALE, 1012. tent, in an action of detinue, brought by the plaintiff to recover the corn levied upon, or its value, for the defendant to show, in defense of the action, that the plaintiff had taken and converted to his own use an equal amount of corn from another portion of the field. Hanna v. Hawks, 31 Iowa, 146. 4. of standing timber. A purchaser of standing timber, under a contract in which a given time was fixed for its removal, cannot enter upon the land for the purpose of its removal after the time has expired. Sanders v. Clark, 22 Iowa, 275. 5. Semble, that in such case a court of equity might give relief, and extend the time, if equitable ground for relief were shown; but the fact that the purchaser entered the military service after the execution of such a contract does not constitute such grounds. Ibid. 6. Defendant agreed that plaintiff might cut staves from his timber at $5 per thousand. After the staves were made, plaintiff neglected to take them away or pay for the timber, until after defandant had hauled them to his house. He then tendered the amount due for the timber as per agreement, and brought replevin, the defendant refusing to give them up till he was IV. RIGHTS AND REMEDIES OF SELLER: STOP paid for his trouble in hauling them. Held, that PAGE IN TRANSITU, 1012. V. RIGHTS AND REMEDIES OF BUYER. a. Generally, 1013. the agreement was a sale of the material out of which the staves were to be manufactured, upon credit; that the title and right to the possession b. Under warranty: what consti- of the staves was in plaintiff, from the time they tutes, 1013. were manufactured; and that defendant had no Mohn v. c. Fraud and false representations, right to a lien upon them either for the price of I. GENERALLY. 1. Fraudulent sales. As to fraud in sales of personal property, see title FRAUDULENT CONVEYANCES, sub-title FRAUDULENT SALE OF CHATTELS, vol. I, p. 538; also title FRAUD, same vol., p. 532. 2. Purchase of standing corn. Where the plaintiff claimed to have purchased a certain portion of standing corn, which was levied upon 7. of wheat in mill. A merchant and exchange miller issued a receipt to the plaintiff as follows: "Received of the plaintiff 48 30-100 bushels of wheat." The general custom of the mill was, in the absence of special directions, to throw wheat into a pile or bin, and issue such receipts as the above, which entitled the holder to call for flour, bran, or wheat again. Held, that the plaintiff could not recover against an attaching creditor of the miller, who seized the wheat, |