Volume 107 — Iowa Reports

— Hon. D. Ryan, Judge. Plaintiff states as liis cause of action in substance as follows: That about August 23, 1893, he got onto one of defendant’s freight trains, going east, at the city of Des Homes, without a ticket entitling him to ride on said train, and was riding on top of one of the ears; that when nearing Altoona defendant’s brakeman ordered him to get off said train, then running at a rapid speed, and immediately rushed at plaintiff in a threatening manner,…

— Hon. J. A. Story, Judge. Action to enjoin the defendant Shoop and the-defendants James Htterson, Perry Fry, and Thomas Patterson, ■township trustees, from enforcing an order of said trustees with respect to the boundary line and division fence between lands owned by Boyd and Shoop. Issues were joined, ancl ■on the hearing a decree was entered for plaintiff as prayed. Defendants appeal.-

— Hon. P. B. Wolfe, .Judge. Action to subject certain real estate to the lien of a judgment. Defendants answered the petition. A demurrer to the answer was overruled, and, plaintiff electing to stand tbereon, judgment was entered dismissing the petition. From this judgment tbe present appeal is taken.

— Hon. John O. Si-ierwin, Judge. Judgment for three hundred and fourteen dollars and seventy-seven cents and decree foreclosing mechanic’s lien were entered against defendant Banwell for materials used in the construction of a creamery building. Issue was joined on the answer of the defendant Case, and, on hearing, In’s mortgage declared senior to the mechanic’s lien of plaintiff. The latter appeals.

— Hon. A. S. Blaie, Judge. On the thirteenth day of October, 1893, the plaintiff purchased from defendant’s agent at Dubuque, Iowa, a passenger ticket from Dubuque to Lamont, Iowa, paying therefor one dollar and seventy-five cents, that being the first-class regular fare.

— IIon. A. S. Blair, Judge. The petition alleged that the plaintiff entered into a written contract with the defendant April 5, 1893, by the terms of which he agreed to render services as superintendent and teacher of its schools for the period of five years at an annual salary of one thousand five hundred dollars per year, payable in monthly installments.

<p>1 Referees: jurisdiction: Court. Where a matter is referred for report by a stated time, the failure of the referee to so act and report leaves the matter as though there had been no reference.</p> <p>1 Same. A district court has jurisdiction to award costs in a case in which a referee has been appointed who ceased to have authority to act and was without jurisdiction because the time had expired in which he was to make his report.</p> <p>1 2 Trial notice. Rule of practice No. 2, adopted by the district judges (McClain’s Code, page 57, preface), relating to notice of trial in any case ouce continued, where an answer is on file, to bring the cause to trial, does not apply to hearing's of motions.</p> <p>2 Same. Where a referee to whom the question of costs in an action had been sent failed to report and a motion was made to the court to tax costs and enter judgment for same, it was the duty of counsel to attend on the hearing of such motion without notice.</p> <p>3 Judgment: vacation. A judgment awarding costs can be vacated for mistake only by motion filed within a year or by a petition in equity if the error is not discovered until after the expiration of the year.</p> <p>3 Same. Code, 1873, section 3154, providing that a judgment may be vacated for irregularity or fraud practiced by the successful party, does not, in the absence of fraud, entitle the party to the vacation of a judgment for costs entered on motion, at the hearing of which the party did not appear, because the judgment failed to conform to an agreed division of costs.</p> <p>3 Same. Code, 1873, section 179, providing that entry made at a previous term can be altered only to correct an evident mistake, applies only to mistakes of fact and does not authorize correction of a judgment for costs which was not in accordance with an agreed division thereof which the parties made on a reference of the cause; such being, at most, a mistake of law.</p> <p>1 Appeal. Where the trial court, on motion, entered an order which recited that the parties appeared by attorneys and argued the motion, it will be assumed on appeal, from an order refusing to set aside such former order, on conflicting evidence as to such appearance, that there was an appearance for the unsuccessful party.</p>

<p>1 2 Transcript Judgment: enforcement: Jurisdiction. Code, section 278. provides that judgments of a superior court may be made liens on real estate in the county in which the court is held ‘ by filing transcripts of the same in the district court, as provided in this Code in relation to judgments of justices of the peace, and with equal effect, and from the time of such filing they shall be treated in all respects, as to the effect and mode of enforcement, as judgments rendered in the district court as of that date, and no execution can thereafter be issued from the said superior court on such judgments, and no real property shall be levied on or sold on process issued out of the superior court/’ The statutes provide that, when a transcript of a judgment of a justice of the peace is thus filed, “it shall be treated in all respects and in its enforcement as a judgment obtained in the district court. No execution shall issue from the justice’s court after the filing of such transcripts.” Held that, when a transcript of a superior court’s judgment is filed in the district court, the superior court cannot retain jurisdiction of one whom it has appointed to collect notes on which it has decreed a lien, and to hold them and their proceeds subject to its order, nor of the property in his possession. And the district court has power to order such person to turn over the notes and proceeds by him received, to the judgment creditor.</p> <p>3 'Supersedeas. Where a decree provides that “defendants have thirty days to file a supersedeas, and in the meantime no execution to issue,” filing the bond within that time does not prevent the enforcement of the decree after expiration of said time unless an appeal be taken in that time.</p> <p>3 Appealable Order. A decree established an attorney’s lien on notes, and provided that plaintiff might accept them at par in payment of the decree. Before ail had been credited on the decree, the parties agreed that the court might appoint the clerk as their agent to collect the notes, and to hold them and their proceeds subject to its order. Held, that an order on the clerk to turn over the notes and proceeds to plaintiff was appealable.</p> <p>3 Certiorari. Under Code, section 4154, providing that certiorari may issue only when “there is no other plain, speedy and adequate remedy,” the writ cannot be granted when the error can be corrected on appeal.</p>

— IIon. George W. Waiceeield, Judge. Action in equity by L. G. Everist against Jobn Pierce and wife to set aside as fradulent a conveyance of real estate, and to subject suck property to the payment of a debt due plaintiff. There was a trial to the court, and, from a decree in defendants’ favor for costs, the plaintiff appeals.

— Iíon. F. R. Gaynor, Judge. IT. N. Moore & Co., and H. N. Moore and P. G. Riedesel, members of the firm, are parties. Defendant in this suit, on the twelfth day of December, 1895, executed his promissory note to TI. N. Moore & Co. for six hundred dollars, payable six months after date.

— ITon. M. J. Wade, Judge. Action at law to recover the purchase price of a shotgun. Defendant pleaded a rescission of the contract, and a tender back of the property. A demurrer to this plea was sustained, and defendant thereupon pleaded breach of warranty. Plaintiff demurred to this answer, and the demurrer was overruled. The appeal is from this order.

— Hon. A. S. Blair, Judge. Action iu equity to have established and enforced a trust. There was a hearing on the merits, and a decree from which the defendants, H. H. Olay, assignee, and A. -G. Ohapman separately appeal.

— Hon. Walter I. Smith* Judge. The assignor, Otto Windhorst, on the thirteenth day of January, 1896, signed and delivered to Gauss, Shelton Hat Company, in St. Louis, Missouri, a note for nine hundred and 'fifteen dollars and ninety-five cents, and a chattel mortgage securing its payment, covering his stock of goods at Shenandoah, Iowa.

— TIon. Fred O’Donnell, Judge. Action for damages occasioned by a fire set out from sparks escaping from the smokestack of a steam road roller, owned and being operated by the city of Dubuque in rolling newly-laid macadam on one of its streets on which the lots of plaintiff abutted. The house thereon, with its contents, was destroyed. The jury returned a verdict for the plaintiff, on which judgment was rendered, and the defendant appeals.

— Hon. M. J. Wade, Judge. Action to recover one hundred and sixty-one dollars and eighty cents, with interest, upon an alleged breach of contract. Defendant’s demurrer to the petition was sutained, and, plaintiff electing to stand on his petition, judgment was rendered against him, from which he appeals.

Appeal froin Kossuth District Court. — Hon. W. B. Quarton,. Judge. This is an action in equity to set aside an award of arbitrators made under section 1715 of the Code of 1873. Decree-was rendered dismissing plaintiff’s petition, and for costs.. Plaintiff appeals.

'Appeal from Dubuque District Gourt. — Hon. J. L. Husted, Judge. Action at law to recover damages for injuries sustained by plaintiff, McCarthy, a servant of the defendant, in coming in contact with what is known as a “brake” ; a machine used by bakers for the purpose of kneading dough.

— Hon. S. M. Weaver, J udge. Action at law upon a policy of insurance covering a'certain building and fixtures in tbe town of Robertson; and a stock of goods kept for sale therein.

— Hon. A. S. Blair, Judge. Suit iu equity to quiet plaintiff’s title to a strip of ground two rods wide off of a certain forty acres of land in Buchanan county, Iowa. Defendant denies plaintiff’s ownership, and claims that he is entitled to the possession thereof by reason of a forfeiture growing out of a condition subsequent in the deed conveying the same to plaintiff’s grantors. Plaintiff denies the forfeiture.

—Hon. C. AI. Waterman, Judge. Suit in equity to enjoin tlie defendant city from executing or carrying out a contract for paving and grading a street which runs through plaintiff’s land, from borrowing the money ■to pay the expenses of such work, from selling or negotiating ■any bonds based upon special assessments for the work, and from assessing, levying or collecting any special tax upon or against plaintiff’s land.

— IIon. Walter I. Smith, Judge. ■ Action in equity to enjoin tbe collection of a personal property tax. There was a hearing on the merits, and a judgment in favor of the defendants for costs. The plaintiff appeals.

— Hon. N. W. Macy, Judge. One Erank O. Stewart died, leaving an instrument purporting to be his last will. It consisted of an original document and one codicil. In the original will the appellants, Hemsted and Everson, were named as executors; in the codicil this appointment of executors was revoked, and one S. O. Campbell was named to fill the place.

— Hon. A. N. Hobson, Judge. Proceedings for tbe probate of tbe will of M. J. Fallon, deceased. Tbe widow of tbe decedent filed objections to tbe will, but sbe was beld not to have sucb an interest in tbe estate as to be entitled to contest tbe will. From that bolding sbe appeals.

— Hon. L. E. Fellows, Judge. Ti-ie plaintiff alleged in his petition that he and the defendant together purchased the east half of lot 4 in block 29 in Oresco, and took a deed thereto in their names, under which, they hold title and possession; that the consideration therefor was one thousand eight hundred dollars, of which five hundred dollars was paid in cash, and a note for the remaining one thousand three hundred dollars and a mortgage on said property, securing the…

— Hon. W. E. Green, Judge. Ti-ie plaintiff planted certain land, bordering on the Missouri river, variously estimated at from 30 to 50 acres, to corn, in the season of 1894. Eor this purpose he went' into possession April 24th of that year, cleared the land of brush, willow, and cottonwood, and broke it.

— Hon. T. M. Fee, Judge. ■ Action against William W. Price on a promissory note for fourteen thousand dollars, executed September 2, 1892, payable one year after date. As the defendant was a nonresident of the state, a writ of attachment was sued out and levied on six hundred and .thirty acres of land supposed to belong to him.

—Hon. P. B. Wolfe, Judge. This is a proceeding to establish a claim against the assignee of the Mutual Guaranty Fire Insurance Company, growing out of a policy of insurance issued by said company in the year 1889. The assignee, among other things, jfieaded that the company had no authority to issue the policy, and that the contract of insurance was and is illegal and void. To this the claimant pleaded an estoppel. The trial court disallowed the claim, and Alvord appeals.-

— IIon. J. P. Olyde, Judge. Defendant's demurrer to plaintiff’s petition and amendments was sustained, and, plaintiff electing to stand on his petition and amendments, judgment was rendered against him, from which he appeals.

'Appeal from Dubuque District Court. — Hon. J. L. Husted, Judge. Action for damages for false imprisonment. At the conclusion of plaintiff’s case, the jury, under instruction from the court, returned a verdict for defendants. From a judgment entered thereon against plaintiff for costs, he appeals.-

— Hon. H. M. Townee, Judge. 1 The plaintiff firm is doing a banking business at Humeston, Iowa. It field a note for tfiree thousand six hundred dollars against W. H. Henderson of Fairfield, Iowa. About September 4,1895, it sent its agent (one E. O. Poston) to Fairfield to settle and adjust the claim with Henderson. On September 4tfi, Poston delivered to the defendant’s agent at Fairfield a telegram as follows: “Fairfield, Iowa, September 4, 1895.

— Hon. W. A. Spurrier, Judge. Action for damag’es resulting from an injury to plaintiff’s hand by being drawn between the rollers of an ironing mangle. Trial to jury, verdict and judgment for the plaintiff, and defendants appeal.

— Hon. G-. W. Wake-field, Judge. Action commenced by ordinary proceedings to test the right of defendant to hold the office of street commissioner of the city of Missouri Valley.

— Iíon. A. P. Thornell, Judge. Erom the petition, answer, and counterclaim, and the amendments thereto, and the reply, it appears that this is an action for an accounting, and that the defendant pleads full settlement, which the plaintiff denies. Verdict and judgment were rendered in favor of the plaintiff for two hundred and forty-seven dollars and eighteen cents. Defendant appeals.

— IIon. W. B. Quarton, Judge. Action at law to recover on a contract for work and labor. Verdict and judgment for plaintiff, and the defendant appealed.

<p>Appeal from Winneshiek District Court. — TIon. A. N. Hob-son, Judge.</p> <p>Action in equity-to quiet title to real estate. From, a decree in plaintiff’s favor, defendants appeal.</p>

- — Hon. F. It. Gay-nor, Judge. Suits in equity to set aside a conveyance of land by defendants A. S. Garretson and wife to defendant T. P. Gere, and a mortgage made by Gere upon the same property, for the sum of thirty thousand dollars to defendants Llixon. It is claimed that each of these instruments is fraudulent and void, because made to hinder, delay, and defraud plaintiffs, who are judgment creditors of Garretson, in the collection of their claims.

<p>Appeal from Polk District Court. — Hon. W. A. Spurrier, Judge.</p> <p>Action to recover for breach of contract of employment. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. Lot Thomas, J udge. Action for decree adjudging the plaintiff a right of way over certain lands. A hearing was had upon the issues, and decree rendered in favor of the plaintiff substantially as prayed. Defendants appeal.

— ITon. Walter 1. Smith, Judge. As a statement of facts, we have taken the following substantially from those made by counsel: This was an action brought by Albert H. Wyman, the receiver of the Nebraska Fire Insurance Company, to enforce against the several defendants their constitutional liability under the Nebraska statute for their unpaid subscriptions to the capital stock of the company.

— Hon. H. M. Towner, Judge. Action in equity to establish a trust in land, tbe title to which was vested in Mrs. Ann Cornelison, now deceased, to set aside the will of the decedent which devised the land, for a partition of the land, and for general equitable relief. There was a hearing on the merits, and a judgment in favor of the defendants for costs. The plaintiff appeals.

— TIon. Lot Thomas, Judge. The plaintiff alleged in his petition that during the lifetime of Ambrose Burdick, his father, he entered into an agreement, partly oral and partly in writing, by the terms of which his father ivas to convey to- him certain real estate described, and, in consideration thereof, this plaintiff promised to- move thereon and care for his father and mother the remainder of their lives; that in pursuance of said agreement the father purchased the…

— FIon. George W. Wakefield, Judge. . Action at law, upon a written contract of agistment, to recover for the loss of sixteen bead of cattle, and for failure to properly care for tlie remainder of tlie cattle received. Defendants denied all responsibility'for tlie loss or damage, and further pleaded that the cattle were diseased when they received them.

Z. A. Church, Judge. Plaintiee brought this action, before a justice of the peace to recover possession of a farm after the expiration -of the lease, which expired March 1, 1897. The defendant answered, admitting that he was in possession, admitting plaintiff’s ownership, and alleging' a verbal agreement by which he was to- have the farm during the year 1897 on the same terms.

— Hon. Lot Ti-iomas, Judge. Proceedings by writ of error to a justice’s court. Upon the hearing by the district court, the action of the justice’s court complained of was reversed, and the cause was remanded for further proceedings. All parties appeal, the appeal of the plaintiff 'having been first taken.

— Hon. W. R. Green, Judge. The action is for the possession o£ certain account books, showing accounts of B. P. Olsen against divers persons alleged to have been assigned and delivered by said Olsen to plaintiff to secure certain claims held by plaintiff for collection against Olsen. The answer is a general denial, except that it admits what plaintiff alleges to be his belief, on information, Jhat defendant’s claim to the books is also an assignment from said Olsen.

— Hon. A. N. Hobson, Judge. This proceeding is to establish plaintiff’s right as an illegitimate son to inherit the property, real and personal, of one Peter Van Horn, who died intestate in Howard county, Iowa; in August of the year 1895. The deceased was never married, and the defendants are his brothers and sisters.

— ITon. Ben. McCoy, Judge. Martz & Meier, as a firm, was engaged in the sale of intoxicating liquor at Hedrick, Iowa. The firm of W. “V. Silvers & Co. was engaged in the sale of beer at Ottumwa, Iowa, the beer being that manufactured by the plaintiff firm, and furnished the beer sold by Martz & Meier. The plaintiff owned a set of bar fixtures at Eldon, Iowa, and Silvers & Co. loaned the set to Mai-tz & Meier, and it was used in the saloon at Hedrick.

— Hon. A. E. Dewey, Judge. Action to recover damages for injuries caused by the alleged negligence of defendant.' At tbe close of tlie evidence for plaintiff, under the court’s instruction, the jury returned a verdict for defendant. From a judgment thereon plaintiff appeals.

— Hon. N: W. Macy, Judge. Action in equity to recover the amount alleg’ed to be due on certain promissory notes, and to* foreclose mortgages, executed to secure their payment. The defendants pleaded several defenses. There was a hearing on the merits, and a decree in favor of the plaintiffs. The defendants appeal.

— Hon. W. B. Quarton, - Judge. This was a proceeding, under sections 2443, 2444, el seq., of tbe Code of 1873, to set apart to the widow of O. L. Lund, deceased, ber distributive share of ber husband’s estate.

— Hon. Lot Thomas, Judge. Action to quiet title. The land was patented by the Hnited States to William Smytke, November 10, 1859, and by him conveyed to Mary P. Holman, September 29, 1862. She executed a quitclaim deed to Frank L. Smith, December 11, 1863.

— Hon. Obed Caswell, Judge. Action on fire insurance policy. For statement of facts, see Taylor v. Insurance Go., 98 Iowa, 521. Trial to court, and judgment for tbe plaintiff. Tbe defendant appeals.

A. W. Wilkinson, Judge. Omer Goldizen died testate on the seventeenth day of July, 1883, leaving the plaintiff as his widow, and certain children and grandchildren as his heirs at law, who are defandants, one of whom is John M. Goldizen.

Walter I. Smith,, Judge. i . •* The petition and amendments thereto are too lengthy to be even fully summarized. It is sufficient to say that it charges that on the tenth day of March, 1894, deceased, W. IT.

— Iíon. C. P. Holmes, Judge. Action in equity to foreclose a mortgage on real estate, and to cancel certain shares of stock held by defendant in plaintiff association. Defense — usury, which was sustained by the trial court. An accounting was had. A judgment of forfeiture was given in favor of the school fund, and plaintiff was awarded a decree for the sum of seventy-two dollars and eighty cents, without either interest or costs. It appeals.

— Hon. Walter I. Smith, Judge. Creditors’ bill to subject certain real estate to tbe payment of plaintiff’s judgment. Tbe trial court reserved to •defendants a homestead in the property, but ordered that the remainder be subjected to' plaintiff’s claim. Defendants appeal.

— Hon. W. B. Green, Judge. Creditors'’ bill to subject certain lands, the title to which was at one time in S. J. Applegate, to the payment of plaintiff’s judgment against him. The title to the land is now in Ernest A. Hamil, or the Corn Exchange Bank, derived through a sale of property on execution from a judgment wherein the Corn Exchange Bank was plaintiff, and W. J. Applegate, the grantee of S. J. Applegate, Avas defendant.

— Hon. Willam G. Thompson, Judge. The parties, with others, were at the house of plaintiff, visiting, and the plaintiff brought from another room a loaded self-cocking revolver for those present to look at, and while thus engaged, and while the revolver was in the hands of defendant, it was discharged, the ball lodging in the ankle of plaintiff, causing him injury, for which he brings this action, ■charging the defendant with negligence in that, while knowing it to'be…

' — IIon. O. Caswell, Judge. One F. M. Smith, having in his possession a check drawn on plaintiff bank, payable to the order of Smith & Hauser, and purporting to be signed by one J. R. Bradbury, indorsed the payee’s name thereon, and presented it to the Citizens’ Bank of Union, and obtained of this bank the cash therefor. This last named bank indorsed the check as follows: “Bay F. A. Balch, cashier, or order. Citizens’ Bank, Union, Iowa.

— Hon. Walter I. Smith, Judge. Action to recover upon a warrant drawn on tbe general fund of tbe city of Council Bluffs, of wbicb city defendant Reed is treasurer. A mandamus was asked, requiring tbe treasurer to pay said claim. To tbe petition a demurrer was interposed. Tbe district court sustained tbe demurrer, and,. tbe plaintiff electing to stand on bis petition, bis action was dismissed, and judgment rendered against bim for costs.

— Hon. Z. A. Church, Judge. Plaintiee’s petition is in equity. It recites, in substance, that defendant ordered from it a harvester and binder, to be delivered at Manson on or before July 1, 1897; that he agreed to pay therefor the sum of one hundred and /thirty-five dollars, as follows: Twenty dollars on the first day of July, 1897, and the remainder in three equal installInents, payable January 1st of the years 1898, 1899, and 1900, respectively.

— Hon. H. M. Remley, Judge. The defendant was convicted of tbe crime of exposing a poisonous substance, with intent that it should be taken by a horse, 'and from a judgment which required that he be imprisoned in the county jail for the period of nine and one-half months, and pay the costs of the prosecution, he appeals.

— Hon. M. A. Roberts,. Judge. From a judgment for damages alleged to bave been occasioned by tbe negligence of the defendant in failing to promptly deliver a telegram, it appeals.

Appeals from Fremont District Court. — Hon. Walter I.. Smith, Judge.- - Actions to subject real estate to tbe payment of a judgment. Decrees from which the defendant Armstrong appealed.

— Hon. G-. W. Burn-ham, Judge. Action in equity to have decreed and quieted in the plaintiff the title to certain real estate. There was a hearing on the merits, the relief demanded was denied, and judgment was rendered in favor of the defendant for costs. The plaintiff appeals.

— Hon. Obed Oaswell, Judge. Plaintiffs bring this action to recover damages in two counts, — the first, to recover for a breach of contract; and the second, to recover for false and fraudulent representations. Issues were joined as will hereafter appear, and, on trial had, verdict and judgment were rendered in favor of the plaintiffs for three hundred and fifty dollars. Defendant appeals.

— Hon. John F. Oliver, Judge. Action in replevin for certain property, on -which execution against A. H. Ainsworth was levied by the sheriff of Monona county. Judgment on verdict for the defendant, and the plaintiff appeals.-

— Hon. II. M. Bemley, J udge. Action by plaintiff to recover certain assets of the estate of his testator, which it is charged defendants have unlawfully seized and kept. There was a trial to a jury, and, under direction of the court, a verdict against defendants Anna L. Murray and Bertha Seery. From a judgment thereon, they appeal.

— Hon. W. A. Spurrier, Judge. Action at law to recover damages caused by tbe publication by the defendant of an article alleged to be libelous. There was a trial by the court without .a jury, and a judgment in favor of the plaintiff for one thousand dollars, interest, and costs. The defendant appeals.-

— Hon. W. A. Spurrier, Judge. Action at law to recover tbe amount due on a promissory note. A jury was impaneled, and evidence was submitted, but at tbe close of tbe evidence tbe court directed a verdict for tbe plaintiff, and judgment was rendered in bear favor. Three of tbe five defendants appeal.

— Hon. N. W. Macy, Judge. Prior to 1890, defeudau.1 Charles Wilkins was the '•owner of two hundred and forty acres of land in Audubon «county, Iowa. Wilkins was indebted to different parties, tod the plaintiff ivas surety for him. In 1890, to secure plaintiff from loss because of such obligations, Willdns deeded to plaintiff the two hundred and forty acres of land mentioned, to be held as security only.

<p>Appeal from Polk District Gourt. — Hon. T. F. Stevenson, Judge.</p> <p>. Action at law to recover damages for a libel published by defendant of and concerning the plaintiff. Defendant pleaded in abatement to the jurisdiction of the court, and also interposed a plea in mitigation. Trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.</p>

<p>3 Evidence: harmless error. The holder of a note contended that it. was given in consideration of the maker’s appointment as am agent of a company to sell its machines and supplies. The maker testified that the company was a myth, and that he supposed he was signing his name merely to enable the agent of the company to find him again should he desire to secure him as an agent. The maker was never appointed an agent. Held, that defendant may testify whether he “ever got any machinery,” though it is not claimed the notes were given for machinery, since his negative answer tended to show he had never acted as agent, and defendant claimed that he received no consideration whatever for the note.</p> <p>4 Evidence oe bad eaith. Evidence of a newspaper article and current reports of a general character circulating in the community in which the holder of a promissory note lived, to the effect that the payee was a fictitious concern and that notes taken in its favor were without consideration, is admissible upon the question as to whether he was a bona fide holder of the note sued upon, where he was a subscriber for the paper in which the articles appeared, and the reports were current prior to the time when he became the owner of the note in suit.</p> <p>1 Challenge to Juror: Error in overruling a challenge to a juror is not . prejudicial, where the peremptory challenges of the party are not exhausted.</p> <p>2 Same. A challenge to a juror who was examined as to his feeling or bias in the words, “The plaintiff challenges the juror for cause,” is too indefinite, in not stating the grounds.</p> <p>5 Costs: amended abstract. Costs of an amended abstract and a supplement thereto, filed by a successful appellee, will not be taxed to him, although the denial of appellant’s abstract was not sufficiently specific to require the filing of a transcript by him, and the supplement was filed after appellant’s argument, where the matter contained is fairly material.</p>

District Oourt. — Hon. M. J. Wade, Judge. The defendant Best entered into a written contract to* construct for defendant Dooley a building on a certain lot in Iowa City. The contract wras made July 5, 1894, and August 9, 1894, tbe parties made another written contract, for extra work on the same building.

<p>Appeal from Woodbury District Court. — Hon. J. 3?. Oliver, Judge.</p> <p>Action to recover for legal services. There was a demurrer to the petition, which was sustained. Plaintiff electing’ to stand on his petition, judgment was rendered against him for costs, and this appeal is taken therefrom.</p>

— Hon. W. G. Thompson, Judge. Action at law to recover an amount alleged to be due and unpaid on a certificate of life insurance. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.-

W. P. Work, Judge. Richard B. Combs died on a farm near Wichita, Kan., April 16, 1889, leaving a family composed of his wife, Eliza J. Combs, and children, John C., Anna Mabel and Emma Combs, living at Burlington, Iowa.

— Hon. A. B. Thornell, Judge. Plaintiff claims that one W. B. Proctor, an agent of defendant company, induced her to take out a ten thousand dollar policy of insurance in said company upon her life, on his representation and inducement that the company would make her a loan upon her real estate, taking, in addition to a mortgage thereon, the policy as security.

— Hon. George EL ' Garr, Judge. Action to quiet title to forty acres of land. Decree ■was entered dismissing the petition, and plaintiffs appeal.

Action to charge the defendant as'indorser of a promissory note. Trial to the court, and judgment for plaintiff for seven hundred and twenty:three dollars and eighty-five cents. Defendant appeals.

<p>Appeal from Hamilton District Gourt. — Iíon. B. P. Birdsall, Judge.</p> <p>Suit in equity upon a promissory note signed by P. R. Dalbey, and to establish and foreclose a mechanic’s lien upon the property of Roxanna Dalbey. Defendant P. R. Dalbey pleaded that the note was obtained through fraud and duress, and that it had been materially altered since its execution. Roxanna Dalbey says that the improvement which was placed upon her property, to-wit, lightning rods, was without her consent and against her protest, and that her husband, P. R. Dalbey, had no authority from her to contract for the improvement. The trial court dismissed the plaintiff’s petition, and they appeal.</p>

— Hon. C. P. Holmes, Judge. Prior to July 15, 1889, E. H. Gillette was tbe owner of lot 53, in Garden Grove addition to North Des Moines. About that time the town of North Des Moines levied on said lot a special assessment to pay for street paving, under the ■provisions of the law therefor, and an assessment certificate issued therefor for one hundred and fifty-six dollars and fourteen cents.

— Hon. W. G. Thompson, Judge. Action at law to recover damages for injuries received by plaintiff in being thrown from a hack. Defense, a general denial. Trial to jury, verdict, and judgment for plaintiff, and defendant appeals.

<p>Appeal from Lee District Court. — Hon. H. Banks, Judge.</p> <p>Indictment for embezzlement. Verdict of guilty, and the defendant appealed.</p>

— Hon. M. A. Roberts, Judge. Plaintiee brings this action to recover five hundred dollars damages for an alleged breach of a written contract between the defendant and one Bradley, which contract Bradley assigned to the plaintiff. By said contract, Bradley purchased sixty head of steers from the defendant, which defendant agreed to keep on full feed of corn from October .15, 1894, until delivered.

— IIon. George H. Oarr, Judge. Action at law to recover damages, for an alleged failure to fulfill the requirements of a contract for the conveyance of land. A jury was impaneled, evidence was submitted, a verdict for the defendant was returned by direction of the court, and judgment rendered in his favor for costs. The plaintiffs appeal.

— Hon. J. L. Husted, Judge. Plaintiee firm, holding a mining lease of “mineral lot No. 262,” in Dubuque county, brings this action in equity to restrain defendants from trespassing thereon. It is charged that defendants have unlawfully entered upon said lot, and begun to sink a shaft, and that they threaten to carry away a large quantity of ore belonging to plaintiff. Defendants, among other defenses, justify their entry upon said premises by a claim of right.

<p>1 Sale: countermand. A written order for certain goods, which were to be shipped at a future date, was not countermanded by letters merely requesting a delay in the shipment of such goods, while recognizing the existence of such contract.</p> <p>3 Approval, Where defendant ordered, subject to plaintiff’s approval, certain goods which were to be shipped at a future date, such approval was sufficiently manifested by the shipment of such goods within the time specified in such order.</p> <p>4 Acceptance. The receipt of goods by the buyer becomes an acceptance of them precluding him from exercising a conditional right to countermand the order for the goods, if the right of rejection is not exercised within a reasonable time.</p> <p>2 Same. The act of a buyer of machines after receiving them and paying freight on them, advertising them for sale and selling part of them, is entirely inconsistent with a continuance of right to the property in the seller and, in the absence of any satisfactory explanation, conclusive of their acceptance by the buyer.</p>

- — -ITon. George W. .Wakefield, Judge. Action for attorney’s fees for services in a criminal case, not a homicide, nor punishable by life imprisonment, rendered under an appointment by the court. Judgment for plaintiff, and the defendant appealed.

- — ILon. N. W. Macy, Judge. The plaintiff is a mutual loan association organized under the laws of Iowa. The defendant is a member of the association, and was prior to March 24, 1890, and owned ten shares of its stock, of one hundred dollars per share.

— Hon. A. S. Blair, Judge. Action at law to recover damages for injuries sustained by plaintiff resulting from a fall into' an excavation in one of tbe streets in defendant city. Trial to a jury, and verdict for plaintiff for four thousand five hundred dollars, which was reduced by the court to the sum of three thousand dollars, and defendant appeals.

. Appeal from Sac District Court. — Hon. Z. A.' Church, Judge. At tlie November term, 1895, of the Sac district court, plaintiff filed his petition in this case, claiming damages for personal injuries caused by the negligence of defendant company. Defendant answered, putting in issue the charges made, and to the answer a reply was interposed.

<p>3 Pees: tramps and vagrants. Compensation fixed by the board of su pervisors of a county under acts Twenty-third General Assembly chapter 43, to be paid to police judges in “tramp cases,” cannot be paid in “vagrancy cases,” since the act is limited to proceedings against tramps.</p> <p>4 Marshals. Under Code 1873, section 536, providing that city marshals shall receive the same fees as sheriffs and constables for duties performed in similar eases, the county is not liable for mar-shall fees in seizing intoxicating liquors, since the Code does not so provide.</p> <p>1 Action for fees: party in interest. Acts Seventeenth General Assembly, chapter 56, provides (section 1) that all cities of the first class may provide by ordinance for the payment of salaries to officers, and (section 2) that all fees allowed by law for their services shall, by such officers, when collected, be paid into the city treasury. Held, that where a city has so prescribed by ordinance, it may maintain an action against the county for fees earned by such officers in vagrancy cases, it being the party in interest, within Code 1873, sections 2543, 2544.</p> <p>2 Presentation oe demand. Code 1873, section 3843, provides that where fees are to be paid any officer out of the county treasury they shall not be paid until the account has been filed in the auditor’s office, verified, and shown for what services they are claimed, and when rendered. Held, that where transcripts of fees in vagrancy cases tried before police judges are certified, sworn to and filed with the county auditor, a city entitled to such fees may maintain an action therefor, though the accounts were not presented in its name.</p> <p>2 Demand. Code 1873, section 2610, providing that no action shall be brought against any county on any unliquidated demand until it has been presented to the board of supervisors, and payment demanded, does not apply in such cases.</p>

<p>1 General Assignment: preferences: Corporations. .An insolvent corporation in Iowa may secure its creditors and prefer one over another, provided, that it does not do so by an instrument or instruments of general assignment, or which are construed to be assignments for the benefit of creditors, and therefore void, by reason of preferences.</p> <p>3 Same. A mortgage made by an insolvent company to a bona ¿fide creditor, nearly two months before a general assignment is determined upon, is not void as part of the assignment.</p> <p>1 4 Conflict of laws. The provisions of a statute that assignments in trust, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the benefit of all creditors, does not apply to a mortgage of property situated in another state, since the validity of the mortgage must be determined by the lex loci rei sitae.</p> <p>2 Mortgages. A mortgage will be held valid in Iowa and the preferences secured by the mortgagee sustained, notwithstanding that at the time of making it the mortgagor had determined to make a general assignment, which he afterwards did, where the mortgagee took it in good faith to secure a valid indebtedness without knowledge of the mortgagor's intention.</p>

'Appeal from Polk District Court. — ITon. W. A. Spurrier, Judge. Action at law on a certificate of membership. A jury was' impaneled, evidence was submitted, a verdict was returned for the defendant by direction of the court, and judgment was rendered in its favor. The plaintiffs appeal.

— ITon. Z. A.- Church, Judge. The plaintiff purchased of Farneman a draft indorsed by him, drawn by the Bank of Kirkman, November- 7, 1892, on the First National Bank of Carroll, on November 8th, and sent it for collection to the Valley National Bank of Des Moines, which, on the following day, forwarded it to the defendant for collection. It was received and presented to the drawee for payment before ten o’clock on the tenth day of November, and payment refused.

<p>Appeal from Carroll District Court. — Hon. Z. A. Church, Judge.</p> <p>Action for slander. Verdict and judgment for defendant, and plaintiff appeals.</p>

— ílosr. S. M. Elwood, Judge. April 27, 1876, the plaintiff bought the west one hundred and twenty acres of the north one-half of section 5, township 84, range 39, in Crawford county. The north half of the section contained three hundred and forty-seven and thirty-six one-hundredth acres. In March, 1883, the defendant bought the south half of the east two hundred and twenty-seven and thirty-six one-hundredth acres of the north half of said section.

— Hon. W. I. Smith, Judge. Actions in equity to recover amounts alleged to b© due, and to foreclose certain mortgages. Each cause was heard on its merits, and a decree rendered therein, from which the plaintiff appeals.

— LIon. M. J. Wade, Judge. Action in equity to foreclose two- chattel mortgages in favor of plaintiff. Lichty & Thomas, by cross bill, seek to foreclose a mortgage in their favor, which they claim is prior .and superior to the mortgage of plaintiff.

— TIon. E. R. Gay-nor, Judge. Ti-iese proceedings had their inception in an action by plaintiff firm to establish and foreclose a mechanic’s lien.

— I-Ion. Robert Seoan, Judgq. Deeendant owns lot 3 in block 34, Coolbaugb & Brooks’ addition to the city of Chariton. The lot is fifty feet by one hundred and seventy-four and three-tenths feet. The north end abuts on Commercial street, and the south end ■on Osceola avenue. On the north end of the lot is a house which defendant occupies, and in which he sold intoxicating liquor during the year 1897.

— ITon. T. If. G-iberson, Judge. Action at law to recover damages alleged to Have been caused by negligence on the part of the defendant, which resulted in the death of the plaintiff’s intestate. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.

— Hon. Robert Sloan, Judge. According to tbe petition, Robert Douglass entered into a written contract with Catherine T. Buster, by the terms of which, in consideration of certain notes and money, amounting to about'one thousand two hundred dollars, in the hands of plaintiff, he agreed to provide her a home, care for, maintain, and nurse her during her life.

— ITon. W. F. Conrad, Judge. Suit in equity to establish a trust upon certain funds in the hands of thé defendant, and for judgment for the amount of plaintiff’s claim. The answer was, in effect, a general denial. Trial to the court, decree for plaintiff as prayed, and defendant appeals.

— ITon. J. H. Apple-gate, Judge. Action in equity to restrain the enforcement of and to cancel a judgment rendered by the district court of Dallas county on the eleventh day of October, 1878, on default, against Martin Boone, in favor of defendant Stillwell, for nine hundred and ninety-seven dollars and fifty-seven cents. Decree was rendered dismissing plaintiff’s petition, from which she appeals.

— Hon. Ben McCoy, Judge. Proceedings for the construction of the will of Henry Schnellbecker, deceased. The question is whether the devisees take per stirpes or per capita. The trial court found that they took per capitaand John Schnellbecker, one of the devisees, appeals.

<p>1 Appeal: error: Pr sump ion of pr judice. A presumption that an erroneous instruction is prejudical prevails unless the evidence is such as to overcome it.</p>

— Hon. J. L. IIusted., Judge. The defendant McAllister was indicted, tried, and acquitted of the crime of assault with intent to inflict great bodily injury upon Thomas J. Johnson.

Proceeding by certiorari far the review of an adjudication by the district court of Winneshiek county by wbicli the plaintiff was found guilty of contempt, and required to pay a fine and costs.

— Hon. H. M. Towner, Judge. Special proceedings to compel defendant, who was the guardian of plaintiff, to- render an accounting to the pro-, bate court. The trial court, sustained a demurrer to the petition, and plaintiffs appeal.

- — -Hon. O. P. Holmes, J udge. Plaintive, a taxpayer in the Seventh assessorial district of the city of Des Moines, brings this action, for himself and the other taxpayers of said district, to enjoin the collection of the taxes based on an increase of twenty per cent, on the valuation of all the real estate in said district for the year 1897, made by the defendant board, as is alleged, without warrant of law and illegally.

— Hon. N. W. Macy, Judge. Dependant was found guilty in the district court of the crime of adultery, and from the sentence imposed appeals.

— Hon. F. K. Gaynor, Juclge. Dependant was indicted for the_ larceny of three heifers. There was a jury trial, with the result that defendant was found guilty. From the judgment rendered on the verdict he appeals .

Ti-ie defendant was convicted of the crime of assault with intent to commit a great bodily injury, and' from the judgment, which required that he be imprisoned in the county jail for the term of six months, and pay the costs of the prosecution, he appeals.

Appeal fiom Wapello District Court. — How. T. M. Pee, Judge. ■ Action for personal injuries. In August, 1892, the plaintiff was in tbe employ of defendant as a brakeman on one of its trains, and was injured in tbe act of coupling its cars.

— IIon. II. M. Towner, Judge. Action to establish a claim against the estate of William Groesbeck, deceased, of which, the defendant is administrator. The claim is founded upon a judgment in favor of plaintiff and against said Groesbeck, of date September 21, 1878, for the sum of six hundred and twenty-three dollars and fifty cents, with six per cent, interest. A jury being waived, trial was had to the court. There was a judgment in plaintiff’s favor, and defendant appeals.

— Hon. P. B. Woleb,, Judge. Suit in equity to establish and foreclose a mechanic’s-, lien. From a decree establishing a lien for part of the-amount claimed, both parties appeal. As plaintiff first perfected its appeal, it will be called appellant.

— Iíon. K. K. Gaynor, Judge. Action in equity to recover an amount alleg’ed to be due on a bond for tbe conveyance of real estate, and for the ic reclosure of the bond. There was a hearing on the merits and a decree for the plaintiff. The defendants appeal.

<p>1 Railroads: fellow servants: Agency. Where an employee of a railroad company, riding on a hand car, strikes at another, who, in an attempt to avoid the blow, pushes off a third employee, who is run over, the injury is not a willful one.</p> <p>2 Same. Under Code 1873, section 1307, making railroad companies liable for injuries to employes resulting from neglect of other employes, or from their willful wrongs, when connected with the operation of the road, where an employe riding on a hand car struck at another, who, in an attempt to avoid the blow, pushed off a third employe, who was injured, the company is not liable, though the injured employe was operating the car, since the employe striking the blow was not acting within the scope of his authority.</p>

<p>SUPPLEMENT.</p> <p>[These cases did not reach me in time to be published in their chronological order. — Reporter.]</p> <p>1 Waterworks Contract: tax levy may precede. Acts Twenty-sixth General Assembly, chapter 1, section 1, provides that all cities of the first class may levy a tax to create a sinking fund for the purchase or erection of waterworks, the proceeds of which shall be deposited at a rate of interest not less than four per cent, per annum, payable on demand. Section 3 provides that such cities may purchase or erect waterworks, and make and continue the levy until the price or cost is paid. Section 4 provides that cities levying such taxes may contract for the purchase or erection of works, and on the approval or adoption of such contract may apply the sinking fund on the cost thereof, and pledge the proceeds of the continuing levy to secure payment of the costs. Held, that such tax may be levied before the contract for the purchase or construction of the work is consummated or approved by the electors.</p> <p>1 2 Constitutional Law: Acts Twenty-six General Assembly, chapter 1, authorizing the levy of taxes by cities in aid of the purchase or construction of waterworks, is not in contravention of constitution, article 7, section 7, providing that every law which imposes a tax shall distinctly state the tax and the object to which it is to be applied, and that it is not sufficient to refer to any other law to fix such tax or object; as the act itself does not impose the tax.</p> <p>2 Same. The authority conferred upon cities of the first class by acts Twenty-sixth General Assembly, chapter l,to levy taxes in anticipation of the purchase or erection of waterworks-is not unconstitutional upon the grounds that the object of the levy is uncertain and indeterminate although any contract for purchase or erection must be approved by the electors.</p> <p>4 Same. Such an act is not in violation of constitution, article 1, section 1, providing that all men have the inalienable right of acquiring, possessing, and protecting property and pursuing and obtaining safety and happiness.</p> <p>5 Courts. Courts have the undoubted right to inquire into the object of a tax and to declare invalid all taxes that are levied for other than governmental purposes and a tax may be held invalid on account of some prohibition of the constitution, but the courts will not interfere unless it is clear that the legislature has exceeded its power.</p>

<p>3 Mortgages: tacking. A valid claim not secured by a mortgage at the time of a purchase of real property cannot be tacked to the mortgage debt and made a lien upon the property by the purchase of the mortgage after the title to the property has vested in the purchaser although the latter retains a portion of the purchase price on account of the claim, not because it was conceded to be due but as security against liability therefor.</p> <p>2 Foreclosures: attorney’s fees. A mortgage providing that it shall secure, in addition to the principal debt, all sums in any way to become due, including attorney’s fees, does not include sums due for services of a stranger in trying to obtain an extension of the mortgage, where he is unsuccessful.</p> <p>2 Same. Nor does it secure a stranger performing services, as against a purchaser of the land, though the stranger afterwards acquires the mortgage.</p> <p>3 Dffenses; Waiver The fact that a purchaser withholds a portion of the price claimed by the mortgagee, as security against the claim does not prevent him from disputing the validity of the claim.</p> <p>4 Pleading. An allowance for rent collected by a mortgagee as agent for the mortgagor is properly allowed to the latter’s transferee in an action to foreclose the mortgage where he does not seek by way of counterclaim to recover for the rent but alleges that the claim therefor was assigned to him and asks to have it adjudicated in the action.</p> <p>1 Appeal: amended abstract. Where an amendment curing a defect in an abstract is filed within a reasonable time after the defect was pointed out, and appellee argues the case on the 'merits, the amendment will not be stricken as being filed too late, and as being a surprise to appellee.</p> <p>5 Tender. A tender to a mortgagee of the amount due on the mortgage is kept good although no money was paid to the clerk of the district court in pursuance thereof because the latter preferred a certificate of deposit, where the money was at all times subject to his order and under his control.</p> <p>5 Waiver. A mortgagee waives his right to insist that the money owing on the mortgage be produced where the owner of the property subject to the mortgage offered to pay the amount due and could have produced it within a few minutes and offered to do so but was assured by the former that the money would not be accepted unless his alleged claim was paid in full.</p>

<p>Appeal from Jefferson District Courtb. — Hon. M. A. Roberts, Judge.-</p> <p>In December, 1890, tbe plaintiff and defendant companies entered into a written contract for tbe sale by defendant, on commission, of tbe plaintiff’s harvesters, binders, etc., for tbe year 1891, in Jefferson county; and in May, 1891, tbe parties made another written contract for tbe sale to defendant of binding twine to be delivered on or before June 1, 1891. In pursuance of these agreements tbe plaintiff furnished to defendant machines, twine, and repairs, for which it claims, as due it, tbe sum of one thousand seven hundred and eighty-eight dollars and ten cents, and it asks an accounting and judgment. Tbe defendant admits tbe making of tbe contracts, but denies tbe accounting as made by plaintiff. Tbe defendant, by way of counterclaim, shows that after tbe making of tbe agreement, in December, 1890, and in pursuance of it, it entered upon its duty as agent for plaintiff in Jefferson county, purchased and received from plaintiff large amounts of goods, and wares, specified in the contract, and proceeded at great expense to advertise the same in the markets of said county, and before its customers therein, and that it worked up a good market and a large demand for said goods by its labor and the expenditure of money, and. would have sold large quantities of the goods, and made large profits and gains thereby; that in the midst of the season of 1891 the plaintiff, in violation of the duty it owed defendant, entered the county of Jefferson, and willfully and maliciously cut the prices of its own goods and wares, which were in the hands of the defendant, and offered to and did sell the same to defendants’ customers below retail prices,, and thereby prevented defendant from making sales, by which defendant was prevented from making profits and gains in the sum of one thousand dollars, for which amount judgment is asked. By an amendment to the answer, it is averred that the written contract of December, 1890, does not express the intention of the j>arties, -and that in its making the parties intended and understood that the contract should be for the appointment of defendant as the sole and exclusive agent for plaintiff in Jefferson county for the year 1891; and a reformation of the contract is asked, to conform to such intention of the parties. Issue is taken upon the averments as to a counterclaim and for reformation of the contract. The cause proceeded to trial as an equitable one, and the court denied defendant’s counterclaim, and any relief by way of reforming the contract, and gave the judgment for plaintiff, from which the defendant appealed.</p>

<p>Appeal from Louisa District Court. — Hon. W. S. Witiirow, Judge.</p> <p>From a verdict and judgment finding the defendant guilty of attempting to corrupt a juror, this appeal is taken.</p>

' — -PIon. P. B. Wolee, Judge. Action at law to recover damages for tbe death of plaintiff’s intestate, alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.'

— Hon. Henry Bank, Jr., Judge. Action in equity to redeem real property held in trust for the.payment of a debt, to procure the conveyance to the plaintiff of the legal title to the property, and to quiet the title in her. There was a hearing on the merits, and a decree in favor of the defendant. The plaintiff appeals.

— Hon. D. Ryan, Judge. Will contest. The facts sufficiently appear in the same' case reported in 105 Iowa, 467. After the evidence had been introduced, the court on motion of proponents, directed the jury to return a verdict for them. Contestants appeal.

— -Hon. J. D. Gamble, Judge. Action at law, aided by attachment, to recover rent reserved in a lease made by plaintiffs to the defendants. The defendants moved to dismiss and discharge the attachment. They also pleaded a surrender of the lease, to which pleading the plaintiffs demurred. The demurrer being overruled, plaintiffs filed a reply, to which defendants demurred, and this demurrer was sustained.

<p>2 Bills and Notes: assignment op mortgage. The purchaser of a . promisory note upon which a payment is endorsed, and to whom real estate mortgages given to secure it are delivered does not acquire title to chattle mortgages given as additional security and transferred to one who made the endorsed payment.</p> <p>1 Implied warranty. One who transfers without recourse a promisory note together with a mortgage apparently given to secure it thereby implicitly warrants the validity of the security.</p>

<p>Appeal from Jefferson District Court. — PIon. Robert Sloan, Judge.</p> <p>Action to recover upon a policy of insurance against fire. The cause was tried to the court, and from a judgment' in plaintiff’s favor tlie defendant appeals.</p>

<p>1 Wills: capacity to revoke: Guardianship. A testator has capacity to revoke a will ii he has full and intelligent knowledge of his property, of those entitled to his bounty, and of the nature of the act, and acts without being influenced by anyone, notwithstanding that he is incapable of making contracts and is under guardianship.</p>