Volume 109 — Iowa Reports

— IíoN. II. A. Robeets, J udge. The defendant, Clay Owens, was jointly indicted with. Ed Noble’for the larceny of certain cattle in Davis county, the property of David E. Davies, and on separate trial was found guilty, and a judgment of imprisonment in tbe penitentiary for a term of four years rendered against Mm, from which judgment he appeals.

— IioN. Lot Thomas, Judge. Ti-ibse are controversies over about eight hundred acres of land lying in Humboldt county, Iowa, which was meandered by the original government surveyors, and designated on the plat as “Owl Lake.” Plaintiffs claim title under act of congress of September 28, 1850, commonly known as the “Swamp-Land Grant.” Defendants claim that the lands were unsurveyed lands, belonging to the national government, and subject to entry under the homestead and…

<p>Negligence: trespassers: Carriers. Deceased was in a caboose to visit a passenger, without business there or intention of becoming a passenger. The caboose Was struck by an incoming train, under 1 circumstances justifying a finding of negligence by the engineer, but neither he nor any employe knew deceased was in the car. Held, that, since deceased was a trespasser, and the railroad owed him no duty, until it discovered him, it was not liable for causing his death.</p> <p>Gross negligence. The fact that the conduct of employes of a rail-2 road is “unusual and reckless” does not constitute gross negligence.</p>

— HoN. A. J. House, Judge. ActioN to remove the defendant from the office of sheriff. From a judgment on a directed verdict, the state appeals.

Appeal front Palo Alto District Court. — Hon. W. B. Quar-ton, Judge. GARNISHMENT proceedings by a judgment creditor. Tbe answers of a garnishee were taken, a petition of intervention was filed, to which the judgment creditor filed an answer, there was a trial by jury, and a verdict and judgment for the intervener. The judgment creditor appeals.

— Hon. C. P. Holmes, Judge. Aotion upon a promissory note. A jury was waived, and the case tried to' the court upon an agreed stipulation of facts. Prom a judgment in plaintiff's favor, defendants appeal.

<p>Insui anee : election to waive arbitration. Where au insurance 1 policy provides for arbitration, and reserves to the company the option to repair, a demand by it for arbitration precludes its 2 afterwards exercising the option to repair, whether or not an 2-3 award was reached.</p> <p>Plea and proof. Where, in an action on an insurance policy, 4 defendant pleads and relies on a provision of the policy relating to arbitration, an independent agreement to arbitrate is inadmissible in evidence, it having no bearing on the issue.</p> <p>Policy construed : Waiver. A provision of an insurance policy 5 that no act done in investigating the loss shall waive any condition of the policy does not include things done in arbitrating under the policy.</p>

— How. Waltek I. Smith, Judge.' ActioN was begun by tbe plaintiff against II. S. Wolff, November 16, 1882, and on the same day.a writ of attachment sued out, and levied on a large amount of personal property in tbe possession of tbe defendant. It thereupon intervened under section 3016 of tbe Code of 1873, claiming ownership thereof, and thereafter executed >a delivery bond by virtue of section 2996.

<p>Justice’s Judgment: COLLATERAL attack: Presumptions. The judgment of a justice recited that there had been proper service of the original notice, but the return thereof was signed by the deputy sheriff. Code, section 4491, declares that any service made by another than the sheriff or constable of the county shall not be 1 valid. Held, that, as the justice must have satisfied himself that the deputy sheriff, in what he did, was acting as sheriff, and that the return was intended to be in his name, his conclusion is presumed to be correct, and the judgment cannot be attacked collaterally.</p> <p>.Same. ' Under Code 1873, section 3515 declaring of what proceedings a justice must keep a record, the residence of the parties need not 2 be entered of record, and in the absence of any showing to the contrary residence is presumed to have been such as to confer jurisdiction of the subject-matter; especially when it appears that the justice and plaintiif resided in the same township.</p> <p>Return of notice. Where a return of service shows the receipt of the original notice on the 20th and service of the same 1 on the 19tb, the statement in the docket that the notice was received the day after it was served does not warrant the conclusion that service was made from a copy, and, the return 3 being sufficient in form, the exact date of receipt of the notice is 4 of no importance.</p> <p>Effect of transcript. Under Code, section 4538, providing that on filing of the transcript the judgment of a justice shall be treated in all respects and in its enforcement as if obtained in the district 5 court, a justice, with the filing of the transcript, loses control of his judgment, although it still continues a judgment of the justice court, and never becomes that of the district court.</p>

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- — HoN. C. M. WatebjiaN, Judge. The defendant was accused and convicted of the crime of murder by poisoning, and she appealed.

<p>Appeal from Franklin District Court. — IioN. S. M. Weaves, Judge.</p> <p>INDICTMENT for breaking and entering a store building. From a judgment of conviction the defendant appeals.:—</p>

— IIoN. W. S. Wittibow, Judge. Tub indictment charges that the defendant “did take, steal, and carry away articles of men’s clothing,” enumerating them, “all of Avhich was of the value-of $30,” and the property 1 of John Buster, Ernest Webster, Howard Sellers, and George Buster. John Buster testified that, of the property, he OAA’ned individually a pair of trousers, a pair of drawers, and a pair of socks, and that George Buster so owned a rain coat.

— HoN. A. N. Hob-soN, Judge. DEFENDANT was convicted in the Fayette county district court of tbe crime of murder in the second degree. From the judgment of that court he appealed. After his conviction he tiled a motion in the Winneshiek county district court, asking that a transcript of the shorthand reporter’s notes be ordered at the expense of the county, and that the court appoint an attorney to prosecute an appeal to this court.

— HoN. A. B. Dewey, Judge. The defendant was convicted of the crime of assault with intent to commit rape, and from the judgment, which required that he be imprisoned in the state penitentiary at Ft. Madison for the term of three years, he appeals.—

— IIon. A. B. Thornell, Judge. Plaintiee brought this action August 25, 1894, to' foreclose a mortgage on personal property of the Nonpareil Printing & Publishing Company. N. Eldred was made a party, as a junior mortgagee. William Arndt was appointed receiver, and tbe appellants, creditors of the Nonpareil Company, intervened, and prosecute this appeal from an order of the court directing certain funds in the hands of the receiver to be applied to specified purposes.

— IioN. William G. TiiompsoN, Judge. Dependant was charged by information filed in the superior court with a violation of an ordinance of the city of Cedar Rapids. Upon the trial he was found guilty, and from a judgment imposing a fine he appealed to the district court.

— IioN. S. II. Elwood, Judge. The defendant was fined for failing to- pay tbe license required of him as a transient merchant, and appeals.—

— Hon. J. F. Clyde, Judge. The defendant was charged by the indictment with willfully and feloniously breaking and entering a building in which goods and merchandise were kept for use, sale, and deposit. On trial, he was acquitted and discharged. The state appeals.

<p>Liquor Injunction: evidence insufficient. Injunction will not run against a person for the mere selling of liquor in violation of the law, independent of the place where it is sold, and hence will be refused where the evidence does not show illegal sales or keeping for sale in the place sought to be enjoined, when suit was commenced.</p>

— HoN. W. B. Quab-toN, Judge. Suit in. equity to foreclose a mortgage. Defense, payment of the note secured thereby to one Lund, who it is claimed was the agent of plaintiff to receive the amount due.

— HoN A. N. Hobson, Judge. These cases present tbe same questions, and may be disposed of in a single opinion. Defendants are charged with keeping liquor nuisances. They each demurred to tbe indictments, and, upon tbe overruling of their demurrers, pleaded guilty to tbe offense charged. Thereafter they filed motions in arrest of judgment, which were overruled, and judgments were entered against them, from which they appeal.

— HoN. Jambs W. Bol-LINGER, Judge. ActioN to have guardian appointed for defendant. Judgment on verdict directed for her, and the plaintiff appeals-.

— Iíon. O. A. Bishop, Judge. Dependant was indicted, tried, and convicted of an assault with intent to commit murder, and from the sentence imposed appeals.-

— HoN. O. A. Bishop, Judge. The defendant was convicted of “an assault with intent to commit a felony,” and, from a judgment which required that he be imprisoned in the state penitentiary at Ft. Madison at hard labor for the term of five years, he appeals.—

— IíoN. T. E. SteveNSON, Judge. PlaiNtief states her cause of action in two counts, — in the first, as follows: “That on the 19th day of March, A. D. 1896, the said defendants pushed, shoved, and threw the said 0.

-HoN. N. W. Maoy, The plaintiffs are tbe widow and children of one Mark Hale. During bis lifetime, Hale was tbe owner of a farm of one hundred and forty-nine acres in Mills county, and tbe defendant Anna Kobbert owned a tract, originally of eighty acres, of Missouri river bottom land in the 'same county. On March 3, 1898, Hale traded bis farm for tbe Kobbert land, receiving a note for five hundred dollars as ‘additional consideration.

JohN T. ■ ' Scott, Judge. The defendant was charged by indictment in two counts with ^attempting to .procuro miscarriage.

— HoN. F. R. Gay-nor, Judge. ActioN at law by E. J. Hanlon against the Illinois Central Railroad Company to recover on account of an alleged wrong on the part of the defendant in ejecting the plaintiff from one of its passenger trains. A motion to strike a part of the petition, and a demurrer to the petition, were sustained, and judgment was rendered in favor of the defendant for costs. The plaintiff appeals.

<p>Appeal from Woodbury District Court. — 1HoN. T. E. Oliver, Judge.</p> <p>The defendant, having been indicted and convicted of robbery, appeals.</p>

Appeal -from Davis District Court. — HoN. F. W. Eichel- , BERGER, Judge, Due'ENdaNT was indicted, tried, and convicted of the crime of larceny, and from the judgment pronounced appeals.—

— Hon. 0. H. Kelly, Judge. PROCEEDING against certain intoxicating liquor. There was a trial by jury, and a verdict to the effect that the liquor was owned or kept for the purpose of1 being sold in violation of law, and should be destroyed. Judgment was rendered, for the destruction of the liquor and against Anton Gordon, in whose possession it was -found, for costs. He appeals.—

— IíoN. E. W. E-ichelberger, Judge. Action at lav/ upon a promissory note for the sum of two thousand dollars executed by defendants J. W. Topping and Ida B. Topping to Christopher Kerr, and indorsed by the administrator of the said Kerr to George W. Kerr. Defendants admit the execution of the note, but say that the same has been fully satisfied and discharged. Trial to a jury, verdict and judgment for plaintiffs, and defendants appeal.—

— HoN. C. P. Holmes, Judge. ActioN to* restrain tbe collection of certain taxes levied against the real estate of plaintiff. Prom a decree enjoining the collection thereof, defendants appeal.

— IioN. S. M. Weaver, J udge. AotioN in equity for a partition of certain real estate Decree was rendered dismissing the plaintiffs petition, from which she appeals.

— HoN. Nice H. Bell, Judge. ActtoN in equity to restrain the collection of certain taxes, to bave the action of certain boards of directors respecting the transfer of territory declared void, and for general equitable relief. There was a hearing on the merit's, and a decree in favor of the plaintiff, from which the independent district of Montrose appeals.

<p>Assignee for Creditors: defending attachment against debtor. Under. Code, section 3084, authorizing an assignee for creditors to sue in his own name for assets of the estate, and generally to do whatever the debtor might have done in the premises, and section 3888, providing that defendant in an attachment may sue on the attachment bond by way of counterclaim and recover 1 damages as in the original action, an assignee may defend in attachment against his assignor, by petition of intervention alleging the wrongful suing out of attachment, and asking damages on the attachment bond, and be joined in his prayer for damages by defendant, who also answers and pleads a counterclaim .</p> <p>COUNTERCLAIM: Intervention. Four days after suit in attachment was begun, defendant therein made an assignment. His assignee filed a petition of intervention, alleging the wrongful suing out of the attachment and asked for damages on the bond, and was joined in his prayer by defendant, who pleaded a counterclaim. 3 Held, that as defendant and intervenor joined in their prayer for relief, the right to prosecute the counterclaim was given by Codes ..section 3888, providing that defendant in attachment may sue on the attachment bond by way of counterclaim and recover damages as in the original action.</p> <p>Interventions delay by defined. Code, section 3595, relating to intervention, providing that the court shall determine on the intervention at the same time the action is decided, and the in-2 tervenor has no right to delay, refers to a delay of trial, and not to such delay as may iesult from an immediate trial; and where intervenor, by his action does not occasion any postponement, he is not within the prohibition of the statute.</p> <p>Leave to file petition. Overruling a motion to strike a petition 7 of intervention is tantamount to granting leave to file it.</p> <p>Contesting mortgage eecognized in deed of assignment. Where an assignment contains a clause to the effect that the conveyance is subject to a certain mortgage therein named, the assignee in accepting the trust, and the creditors in filing their claims, are 4 not estopped from contesting the validity of such mortgage, and the fact that such clause is included in the deed does not affect its validity.</p> <p>Wrongful Attachment: what must be PROVEN. Under Code, section 3887, providing that, in an action on an attachment bond, plaintiff therein may recover, if the attachment was wrongfully sued out, without reasonable cause, in order to recover on attachment 5 bond plaintiff need only show that the ground alleged in the petition is untrue, and that defendant had no reasonable cause to believe it to be true, and need not show that all the statutory grounds on which the writ could issue are untrue.</p> <p>Costs. Costs definitely fixed by law are to be taxed by the court, 6 and there is no occasion to submit the amount to be allowed to the jury.</p> <p>Motion and Answer: waivek. A motion to strike an answer and counterclaim is not waived by answering the counterclaim, where 7 the same point was raised in the answer to the counterclaim as was raised in the motion to strike.</p>

<p>Appeal from Van Burén District Oourt. — How. M. A. Kobeets, Judge.</p> <p>ActioN at law upon an instrument in the form of a promissory note. Defendant pleads that the instrument was not intended as and for.an obligation to pay any amount, but was executed as and for a receipt, and as evidence of certain previous transactions had between the parties thereto'. In an amendment to the answer it was pleaded that, for the reasons stated, the said note was without consideration and void. The trial court directed a verdict for plaintiff, and defendant appeals.</p>

<p>Warrants of City o'Council Bluffs: procedure: Pres'-niulion. Since Acts Twenty-second General Assembly, chapter 4, section 1, requiring cities of the first class to apply the current income of each year to payment of expenses of that year, by a proviso, did not apply to Council Bluffs, the payment of such warrants was governed by Acts Twenty-second General Assembly, chapter 3, 3 section 2, requiring city warrants to be paid in the order of presentation, which presentation constituted a contract of precedence with warrant holders, which could not be impaired by subsequent legislation rendering the former act applicable to such city.</p> <p>Constitutional Limit on Municipal Debt: outstanding- warrants: Demurrer. Though a petition which is demurred to alleges that the debt of a town is in excess of the constitutional limit, it will 1 not be held that warrants to which those of plaintiff were being postponed were thus invalidated unless it is also alleged that when the warrants claiming precedence were issued the city did not have funds on hand available for and sufficient to meet them.</p> <p>Demurrer: what may be considered ON. In an action on city-warrants claimed to be invalid because the city had exceeded its 2 constitutional limit of indebtedness, the court cannot consider, on demurrer to the petition, finanical statements of the city, showing such indebtedness, not contained in the petition.</p> <p>Appeals Review op constitutional question: Presentation. An 2 appellate court will not consider the constitutionality of astatute, 4 where such question was not argued before it</p>

<p>^Dismissal Witliont Prejudice: motion to direct verdict not final submission. Under Code, section 3764, providing that an action may be dismissed without prejudice before final submission of the case to the jury, plaintiff may dismiss after defendant has moved for the direction of a verdict in his favor on plaintiff’s evidence, and the court has indicated that it would sustain the motion.</p>

<p>Plijsiciaus: dbgkeb of skill Required. The correct rule is that a physician and surgeon, when employed in his professional 4 capacity, is required to exercise that degree of knowledge, skill, and care which physicians and surgeons practicing in similar localities ordinarily possess.</p> <p>Sealed Yerdict: polling jury. Under Code, section 3724, which provides that when, by consent, the jury have been permitted to seal their verdict and separate before it is rendered, such sealing is equivalent to a rendition and recording thereof in open court, nor shall such jury be polled or permitted to disagree thereto 2 unless such course has been agreed upon between the parties and entered on the record, where in such case no agreement has been made it is not error to refuse to permit a member of the jury, when a sealed verdict is returned into court to give an explanation of his assent thereto, or to permit the jury to be polled.</p> <p>Uewly discoyjered eyidenoe. Where a defendant knew that a person had conversed with plaintiff regarding the matters in suit, and issued a subpoena for such person as a witness, which was not served, and he made no application for continuance on that •8 ground, but proceeded to trial without objection the fact that he learned the purport of the conversation for the first time after verdict, and that it was material, does not entitle him to a new trial on the ground of newly discovered evidence.</p> <p>Appeal: objection below to evidence. Where medical works were introduced and read in evidence by both parties without 1 objection on the trial of a personal injury case, their admission cannot be assigned as error.</p> <p>Waterman, J., taking no part.</p>

<p>Appeals from Adair District Court.- — Hon. James D, Gamble, Judge.</p> <p>Actions in equity to redeem real estate from sheriff’s sale and for an accounting. A demurrer to the petition in each case was sustained, and, the plaintiff refusing to plead further, judgments were rendered dismissing the petitions. The plaintiff appeals in each case.</p>

<p>Appeal from Madison District Court. — IíoN. James D_ Gamble, Judge.</p> <p>The defendants were jointly charged by indictment with the crime of conspiring and confederating together to defraud and cheat, by false pretenses and representations,, the counties of Madison, Dallas, Guthrie, Polk, Marion, Page, Mills, Einggold, and other counties in the state of Iowa. The appellant, Thomas Jefferson, was separately-tried, and a verdict of guilty returned against him, upon-which the court rendered judgment of imprisonment in the-peniteniary for a period of two years and six months, from which judgment the defendant Thomas Jefferson appeals.-r-</p>

’Appeal from Warren District Gourt. — HoN. A. W. Wn> ' KiNSON, Judge. This is a contest over tbe probate of tbe will of Edward Perkins, deceased. Contestants claim that be was not of sound mind and disposing memory at tbe time tbe will was executed, and that proponent, wbo is tbe main beneficiary under tbe will, procured tbe execution of tbe same by undue influence. There was a trial to a jury, resulting in a verdict and judgment for contestants, and proponent appeals. — -

— IioN. Feed O’DoN-nell, Judge. ActioN at law to recover damages for personal injuries caused, as alleged, by tbe negligence of the defendant. From a verdict and judgment in plaintiff’s favor, defendant appeals.

- — How. F. R.. Gay-NOR, J ridge. The defendant city maintained a bridge over Perry creek, on one of its streets, and while Lorenz Sachs was driving over it with a load of lumber, June 8, 1897, the supporting timbers gave way, and the. bridge, with Sachs, fell a distance of twenty-five or thirty feet. He received injuries which caused his death September 20, 1897. This action, was brought by his administratrix for damages October 7, 1897.

— Hon. D. Ryan, Judge. Action in equity commenced to recover tbe amount due on a promissory note and for taxes paid, and for the foreclosure of a mortgage. A counterclaim was filed. There was a hearing on the merits, and a decree for the plaintiff. The defendants appeal.

.Appeal from Sac District Court. — Hon. S. M. Ei/wood, Judge. Action for pop corn sold and delivered. From judgment on verdict directed for the defendant the plaintiff • .appeals.

— HoN. D. Ryan, Judge. Action of mandamus to- compel defendant, who- is- road supervisor, to- remove obstructions from a certain highway, and to open the road to its full width. The trial court sustained a demurrer to plaintiff’s petition, and he appeals.—

— HoN. A. S-Blair, Judge. This action is by Mary McDermott against J. Hacker & Co., and J. ITacker and James McDermott, the persons composing said firm. Plaintiff seeks to' recover two' thousand dollars, with interest, on a promissory note executed to plaintiff for money borrowed by James McDermott, signing thereto the firm name of “J. Hacker & Co1.” N> defense is made by James McDermott.

— How. Z. A. Church,. Judge. ActioN to recover for medical services. A jury was-waived, and trial had to' the court. Erom a judgment ira plaintiff’s favor, defendant appeals.-

— Hon. P. B. Wolfe,. Judge. ActioN to recover the possession of a tract of land.. There was a hearing as in equity on the merits, and a judgment in favor 'of the defendant for costs. The plaintiff appeals.

— HoN. F. E. Gay-nor, Judge. ActioN to recover salary as street commissioner.

— TIoN. Z. A. Church, Judge. This is an application on the part of the defendant to discharge a judgment. The relief prayed was denied, and defendant appeals..

<p>Employes Beneficial Society: or insurance association: What constitutes. Ail association organized by a railroad company for the benefit of the members in case of injury to them, or of the bene-1 iieiaries named iu the membership certificate in case of their death, 2 the relief fund of which is raised from monthly payments by the 4 members, who are employes of the road only, any deficiency being made up by the co'mpany, is not an insurance company, but a beneficial society. •</p> <p>Contract with employe: When nol an insurance agreement. An agreement in a certificate of membership in a benefit association organized by a railroad company to which it contributes, and the 3 expenses of which are paid by it, that, in case any member or his beneficiary accepts benefits due by reason of ace'dent on account of his membership, the company shall, be released from liability on account of the sickness, injury, or death of such member, is not void because it is an agreement to furnish insurance.</p> <p>Implied power of railway to malee sueh contract. A railroad company organized a relief department, solely for its benefit and the benefit of its employes who became members thereof. Each member 4 was required to contribute a fixed amount monthly to the relief 5 fund, to be used to furnish relief to its membersiu eases of accident or sickness, and in case of their death, to provide something for their beneficiaries, and to make certain, in cases where the benefits of the department were accepted, the liability of the company for injuries caused by its negligence. Held, that an agreement by the company to aid the department by paying its expenses and making up any deficiency in benefits due members was not outside of its powers because a railroad corporation has implied power to aid a relief association composed of its employes by con-tríbuting lo the expenses of operation and to the relief fund, where the acceptance of benefits from the relief fund operates to release or diminish the liability of the company for injuries.</p> <p>Acceptance OS'benefits: Waiver of right to recover for injury. An employe of a railroad company which had a relief department fo'r the benefit of its employes was injured. His membership certificate provided that, by accepting benefits due him by reason of accident the company should be relieved from liability on account 7 thereof. Held, that, where he- accepted some benefits under a mistake, supposing his injuries were only temporary, and he made . no effort to return the money after the mistake was ascertained, the company was not liable.</p> <p>AVOIDANCE OE ACCEPTANCE OF BENEFITS THROÜGH MISTAKE: When and how permitted. He could not avoid the election he had made by pleading the mistake for the first time in an amended reply in an action brought by him for such injuries, filed more than two 7 years after the action was commenced, and offering to allow it as a credit on the amount claimed to be due him from the company, thus making an offer to refund, not to the relief department but to the railway company as defendant.</p> <p>Deemer, J. dissenting from the reasoning but agreeing to the conclusion arrived at.</p> <p>Pleading duress: Definiteness. Averments that plaintiff in an action for personal'injuries against a railway company became a member of.a relief department through duress and coercion on 6. the part of defendant; and that coercive measures adopted were not by open words but by threats, menaces, and insinuations which cannot be set out in the pleadings, are too indefinite and uncertain to show that the contract of the plaintiff with the relief association, by which he agreed that the acceptance of benefits should release the company from liability for injuries, is void. ■</p> <p>Striking pleading: Harmless error. Plaintiff is not prejudiced by 9 the striking out of reply denying averments of the answer, where a denial was implied by law to so much of the answer as was not admitted.</p> <p>Malpractice of Bailway Surgeon: liability of company. A railroad company is not liable for the malpractice of its surgeons in treat-8 ing injured employes where it exercises due care and diligence to select surgeons who are reasonably competent.</p>

— IIon. W. E. CoNrad, Judge. Plaintiff, a judgment creditor of John Collis, brings this action to set aside a conveyance of certain real estate from John to Mary Collis, and the transfer of certain shares of the capital stock of the Iowa Loan & Trust Company from John Collis to defendant Henry.

— IioN. Jakes M. Boelinger, Judge. ActioN at law for tlie purchase price of a well-making outfit. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant'the Union Bank of AYilton appeals.'

— HoN. W. H. Ted-ford, Judge. AotioN to foreclose chattel mortgage. J. H. and D. E. Newman owned an eighty acres of land.

— HoN. EraNKLot 0. Platt, Judge. ActioN at law on a replevin bond. A demurrer to the ■second count of tbe petition was sustained, and, tbe plaintiff refusing to plead further, judgment was rendered in favor of tbe defendant for costs. Tbe plaintiff appeals.—

'Appeal from Boone District Court. — HoN. B. P. Biedsall, Judge. AotioN to recover damages for criminal conversation with plaintiff’s wife. The answer was a general denial, coupled with a denial of indebtedness. The bar of the statute of limitations was also set up-. From a verdict and judgment in defendant’s favor, plaintiff appeals.

— Hon. B. P. Bird* sall* Judge. Actiost at law upon a promisory note. Defense, duress,, undue influence, want of consideration, and that it was given upon an Agreement, express or implied, not to prosecute-one A. J. Doidge, a son of one of the defendants and a son*in-law of the other, for the crime of forgery. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal.

— Hon. S. M_ Weaver, Judge. Action to recover commissions alleged to be due from defendants to Parks Bros., and which, it is claimed, were-. verbally assigned to plaintiffs in part payment of an indebt- ■ edness due them from said Parks Bros. There was a general denial of plaintiffs’ claim; an affirmative defense that plaintiffs are non-resident receivers, and as snob were not entitled to mintain tbe action; and a further claim that before the commencement of this action the…

— TIoN. S. M. Weaver, Judge. ActioN in equity to recover an amount alleged to be due as rent, and to establish a lien therefor. There was a hearing on the merits, and a judgment for the defendants. The plaintiff appeals.

<p>Appeal from Sioux Distmct Court.-^-Hom. E. R. Gaynor, Judge.</p> <p>Action in equity for the partition of real estate, or, if it cannot be equitably divided, for a sale thereof and. a division of the proceeds. There was a hearing on the merits, ;and a decree, from- which the defendant appeals.</p>

— Hon. William Hutchinson, Judge. Action in equity to have certain tax sales declared void, and to enjoin the issuance of deeds thereon. Two grounds are set up as a foundation for the relief asked, viz.: (1) That no proper notice of said sales was given, as required by law; and (2) that, as to a part of the land involved, it was not subject to taxation at the time the assessments were made.

<p>Attachment: written notice to onk in possession: Waiver. Under Code 1873, section 2967, providing that the mode of attach-1 ment shall be by giving defendant and the person in possession of the property notice of the attachment, written notice having been given the attachment defendant, written notice to the tenant is waived by his giving a written receipt for the property attached, and by actual verbal notice.</p> <p>Amendment op return. The facts connected with the levying of an 2 attachment may be shown by the . fficer amending his return.</p>

<p>Service of Original Notice: residence of married woman: Desertion. The residence of the husband is the residence of the wife for the purpose of serving her with notice of action, though she 1 has left him, it not appearing that she had sufficient legal grounds for a final separation from him, or that, when she left him she intended the separation should be permanent, and she having afterwards returned to him.</p> <p>Contradiction oeebtuRN. The return of an officer that he served the notice of action on a married woman by leaving a copy at the residence of and with her husband, that being her usual place of resi-2 denoe, is not overcome by the testimony of a witness, given seventeen years thereafter, on his unaided recollection, that her husband was not then at the place where he and his family usually resided, but at the house of a neighbor.</p> <p>New Trial: unavoidable casualty and misfortune. There is “unavoidable casualty or misfortune,” preventing one from defending an action against her in justice’s court, so as to authorize a new trial, under Code section 4091, subdivision 5, where she was unable to write, and did^,ot sign the notes sued on, but her name 3 was affixed with the knowledge, concurrence, and procurement of her husband, and she had left her husband because of his habitual drunkenness and failure to support her, and was in another state, and the notice of action was merely left with her husband, she having no knowledge of it.</p>

<p>County Seats: Relocation: Annexation of town. The annexation to the town of G. of the village of 0., where the county seat is 1 located, does uod locate the county seat, and so permit the county buildings to be put within the old limits of G , under the Code pro-3 vision authorizing the change of site of the court house, provided the place selected is within the limits of the town at which the county seat is located.</p> <p>Certiorari: changing site oe court house: Certiorari is the 4 proper remedy to test the legality of proceedings of the county board for changing site of a court house.</p> <p>Injunction: Removal of books and records. Injunction will lie 4 to restrain the unauthorized removal of cotínty books and records.</p> <p>Expenditure for building court house. The limitation of Code section 438 on the amount that may be expended by the county 3 board in erecting a court house, has no application to money donated by citizens.</p>

<p>Evidences relevance and admissibility: Criminal conversation. 1q an action for damages for criminal conversation with plaintiff’s wife, a witness on behalf of plaintiff testified that she saw a man and a woman in the road one night near some willow hedge ; that 1 she did not know them ; that the woman came towards the town in which plaintiff's wife resided, and that the man went in the other direction ; and that defendant’s house was on the same side of the road where the man turned off, but quite a distance from there. Held, that the testimony was inadmissible.</p> <p>Motion to strike : Practice. The ruling of the lower court, in overruling a motion to strike certain testimony, cannot be justified on the ground that the motion was to strike all the testimony, 3 while soma of it was relevant and material, where the portion claimed to be relevant and material was a mere incident of the testimony, and w.as undisputed.</p>

<p>Appel from Allmnakee District Court. — HoN. L. E. Fellows, Judge.</p> <p>This is an action on a promissory note aided by attachment The defendant admitted the execution of the-note, and filed a counterclaim for damages on the attachment bond growing out of the/alleged Wrongful issuance of the writ-The jury found the writ was wrongfully, but not maliciously,, sued out, and returned a verdict for plaintiff for an amount less than the full face of the note, with interest. After the verdict was returned, the following entry was made of’ record: “By agreement, plaintiff has judgment for $38, attorney’s fees, and all costs, except $100. Defendant, Henry Schnitker, by agreement, has judgment against plaintiff for $100 costs and $125 attorney’s fees.” On demand of defendant’s attorney, a fee bill was issued by the clerk commanding the sheriff to levy on sufficient property of the plaintiff to-satisfy the attorney’s fees and costs taxed against the plaintiff. Plaintiff thereupon filed a motion to quash the fee bill.. Defendant’s attorney filed a motion in his own name to strike the motion to quash, for the reason no copy of the same was-filed, as required by section 3558 of the Code. The motion to strike was overruled, and the motion to quash was sustained, and defendant appeals.</p>

<p>¡Resisting Officer; indictment insufficient. An indictment charging that one did “unlawfully and willfully” resist an officer in serving process is not sufficient, under Code, section 4899, declaring a punishment if one “knowingly and willfully ” make such ¡resistance ; “knowingly” not being synonymous with “willfully,” and its omission not being supplied.</p>

— TIoN. A. S. Blaie, Judge. ; AotioN at law to recover three hundred dollars and interest on a promissory note executed by the defendants tb Effie 1VI. Shaulis, and assigned by her for value, before due, to' the plaintiff.

<p>Petition for Severance of Territory: sufficiency. Reasons for-desiring a severance need not be stated in a petition under Code, 1 section 440, Code of 1873, providing, that., when the inhabitants of a part of a town desire to have it severed from the limits of the-town, they may apply by petition, signed by the majority of the people of such part, to the court, which petition shall describe the territory proposed to be severed, attaching a map thereof,, and naming the persons authorized to act as petitioners.</p> <p>Waiver. Even if a petition for severance of territory from a town 1 should state the reasons for desiring it, its failure to do so is-waived by going to trial without request that it be made more specific.</p> <p>Plea and Charge. Upon a petition praying severance of territory from a town which petition states no reason and is not attacked-3 by motion for more specific statement, the court may tell the jury that the territory should not be retained simply to produce; revenue.</p>

— TIoN. G-eorge W-Wakefield, Judge. P. W. Pritchard and sixty-eight other residents, property owners, and taxpayers in the city of Sioux City bring this action against J. A. Magoun, county treasurer, C. A. L. Oleson, county auditor, the Combination Bridge Company, and the city of Sioux City, to declare a certain tax upon thp property of plaintiffs in aid of said bridge company illegal and void, and to- restrain said county officers from collecting-said tax.

Appeal froyn 'Pottawattamie'-.District .Court.-. — HoN. N. W. ' - ' : ' ■ Macy, Judge. : , ‘ Action to recover alleged unreasonable, extortionate, aid illegal freight charges on hay shipped by plaintiffs over defendants’ line's of road from Whiting to Council Bluffs. Judgment for plaintiffs, and defendants appeal.

— HoN. M. A. Roberts, Judge. .Action in equity to recover amount due on certificates issued for paving assessments, and to establish liens therefor. Various defenses were set up in the answers, some of which have1 been abandoned. We shall note fully in the opinion the matters pressed in argument. Prom a decree in plaintiff’s favor, defendants appeal.

!Appeal from Pottawattamie District Court at Avoca. — HoN. W. R. Green, Judge. Action' at law for the recovery of specific personal property. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.

— Hon. Z. A. Church, Judge. ActioN in equity for a divorce. There was a hearing on the merits, and a decree for the plaintiff as prayed. The defendant appeals.

— Hour. Rice TI.Beel,. Judge. AotioN to- recover fo-r personal injuries. A demurrer to the petition was sustained. Plaintiff electing to stand thereon, judgment was rendered against him for costs.. Tie appeals.-

Z. A. Church, Judge. . ActioN against defendant for goods sold and delivered W. - IT. Pottbast as bis agent. Decree for defendant, and plaintiff appeals.

— Hon. W. R. Green, Judge. Suit iu equity to foreclose a mortgage made by defendants Archer and wife upon certain real estate in the city of Council Bluffs, to secure a note executed by D. W. Archer to one W. F. Wahl, and by him (Wahl) indorsed to the Kimball-Champ' Investment Company, and by the investr ment company indorsed and assigned to plaintiff.

— IioN. W. R. Greek, Judge. Suit in equity to enjoin the opening of what is known as “Seventh street,” in the city of Council Bluffs, over and across plaintiff’s right of way. There was a hearing on the merits, resulting in a decree for plaintiff, and defendants appeal.

■ — TIon. Obed Caswell, Judge. ActioN at law to recover for injuries to personal property alleged to have been caused by negligence on the part of the defendant. A verdict for the defendant was returned by direction of the court, judgment for costs was rendered thereon, and the plaintiff appeals.

<p>Appeal from Buena Yisla District Court. — HoN. F. H. IIelsell, Judge.</p> <p>Tbe defendants having been convicted of burglary, appeal.</p>

— Hon. EraNKliN 0. Platt, Judge. ActioN of mandamus to compel defendant, who is a justice of tbe peace, to allow an appeal. Tbe trial court sustained a demurrer to tbe petition, and plaintiffs appeal.—

— HoN. Z. A. Church, Judge. ActioN in equity to have a, warranty deed, absolute in form, executed and delivered by tbe plaintiffs to the-defendant company, conveying the lands described therein, declared to be a mortgage, and for leave to redeem therefrom. Decree was rendered dismissing plaintiffs’ petition,, and quieting title to the defendant company and defendant M. M. Iiines, as prayed in their cross petition. Plaintiffs-appeal.

<p>Chattel Mortgages : sufficient description. Description of property in a chattel mortgage is sufficient to give constructive notice to subsequent lienholders, it purporting to be made by C., ‘‘in the county of Mahaska and the state of Iowa,” the property being described as “ one sorrel colt coming two years old, a standard bred stallion colt called S.it being recited, “It is provided that said C. gives this mortgage on said stallion colt for a half interest in the same,” and conditioned that C. shall not remove the property “from said county of Mahaska.”</p>

— IIon. Feaniclin ,0. Platt, Judge. ActioN to recover damages for personal injuries. When the evidence was all in, .the court, on motion of defendant, directed a verdict, in its favor. From a judgment rendered on such verdict taxing costs to plaintiff, she appeals.

— IJoN. William P. Wole, Judge. Action in equity to quiet title in the1 plaintiff to certain-real estate in Linn county. Decree was rendered dismissing plaintiffs petition, and for costs, from which he appeals.

<p>Appeal from Linn District Oourt. — PIoN. H. M. Remley, Judge.</p>

'Appeal from Olinton District Court. — HoN. P. B. Wolee, Judge. The plaintiff, a subcontractor under the defendant Heightman, who contracted with the defendant Lochner fo-r the erection of a barn, brings this action to establish and foreclose a mechanic’s lien for lumber furnished for the construction of said barn, and for a judgment for ninety-eight dollars and ninety-eight cents balance due therefor.

<p>Master and Servant: whex relation exists. F. engaged a carryall to convey certain persons to and from a picnic, and was to collect the fares, and pay them over to the owner. He directed the vehicle to be sent to a certain place, where “he would take charge of it, 3 and go with them and gather the crowd up.” The owner was to send out later after them, There was nothing to indicate F. was to exercise any control over the driver. Held, that the driver ■ was a servant of the owner, and not of F., and the owner was liable for injuries eaused-by'-tílb driver’s negligence.</p> <p>Defective Pleading: waiver by requesting instructions. Where defendant requested a charge that, “in order to find that the driver was negligent in his driving, the finding should be based 1 on evidence, and not inferred from the accident — in other words, 2 you cannot infer from the accident that the driver was negligent;” and that the burden was on plaintiff to show the accident resulted from the driver’s negligence — this was a waiver of defect in the petition in failing to distinctly aver such negligence.</p>

— HoN. Obed Cas-well, Judge. ActioN for the interpretation of the will of James AY. Hambel, deceased, and for other relief. A demurrer to the petition was overruled, and, the defendants refusing to plead further, a, decree was rendered in favor of the plaintiffs. The defendants appeal.-

— Hon. F. W. Eicjielberger, Judge. AcxiON to enjoin the defendant from keeping and maintaining a nuisance in a building described by therein keeping for sale and selling intoxicating liquors in viola-ton of law, and to abate the nuisance.

— IíoN. Wm. G. Thompson Judge. ActioN to recover possession of specific personal property. Defendant denies plaintiff’s ownership or right to possession, and further pleads that his claim thereto is fraudulent and collusive, and made with intent to hinder and defraud the creditors of one Kelty, who it is claimed is the owner of the property. There was a trial to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.'

.Appeal from Lee District Court. — líoN. HeNRy Bauk, Je.., •Judge. This is an action upon a bond given to secure the faithful performance of a contract with the city for work for which the defendants Moore and Lane were contractors. The other defendants were sureties. It is claimed there was a breach of the conditions of the obligation, and damages are sought in this proceeding therefor.

— IIoN. W. E. CoNead, Judge. BetweeN Ninth and Tenth' streets are lots 11 and 12, abutting what is now North street, running east and west.

— HoN. O. P. Holmes» J udge. Suit in equity to subject certain lots in the city oP Des Moines, the title to which is in the defendant Evelyn. Allen to the payment of a judgment held by plaintiff against Beuben Allen. The trial court dismissed the plaintiff’s petition, and she appeals.

— HoN. T. M.. Giberson, Judge. ActioN at law o-u an award by arbitrators. There-was a trial by jury, and a verdict and judgment for the-plaintiff. The defendant appeals

— Hon. W. B. Quarton, Judge. Plaintiff, assignee of a promissory note executed by the defendants to one Le Clair in consideration of the rent of a certain farm, brought this action before a justice of the peace to recover the amount due upon said note; the note containing a clause giving jurisdiction to any justice of the peace, not exceeding three hundred dollars.

— IÍON. Eranic W. Eichelberg-er, Judge. Action in equity to restrain the defendant from removing shelving’, counters, and other fixtures from a certain storeroom. There was a hearing on the merits, and a judgment in favor of the defendant for costs. The plaintiff appeals.

<p>--Abatement: other actions pending. Action by P. against H on a note will not be abated because of pendency of action by H. against P. for a partnership accounting, and to have set aside for fraud or specifically enforced, a contract alleged to provide, aru-mg other things, for the surrender of the note to H.; the parties not standing in the same relations in both actions, and that by H. affording no remedy to P.</p>

District Court.'- — HoN. Gr. W. BurNham, Judge. The petition' is in two counts, tbe first of which sets forth a cause of action which is substantially as follows: Prior to December 14, 1893, plaintiffs were indebted to defendant in a considerable amount, which was evidenced iñ part by promissory notes and in part by book account.

— IIoN. B. P. Biedsale, Judge. Thoe OlsoN died July 23, 1899, seised of four hundred and sixty acres of land in Story county, and by will gave the use of it during life to his wife, and one-half of the remainder to his heirs, and the other one-half to the children of his wife by a former marriage. See Furenes v. Severtson, 102 Iowa, 322.

— HoN. HeNRy Bank, Judge. ActioN to recover one hundred and ninety-eight dollars with interest, on an account for merchandise alleged to have been purchased by defendants, as co-partners, from the plaintiffs.

— Hon. Obed Cas-well, Judge. Action on certificate, of insurance issued by a mutual insurance company. Decree for plaintiff, and the defendant appeals.

— Hon. A. S. Blair, Judge. Action at law to recover for the death of the plaintiff’s intestate, alleged to have been caused by negligence on the part of the defendant. After the evidence had been fully submitted, the court, on the motion of the defendant, directed a verdict in its favor, and rendered judgment against the plaintiff for costs. From that judgment she appeals.

- — IíoN. A. W. Wilkin-sow, Judge. Tins is a contest over the right to hold the office of •sheriff of Marion county. The board of supervisors, acting as a canvassing board, found that the incumbent had a plurality of one vote over the contestant. Contestant •appealed, and the court of contest, authorized by statute, found that he (contestant) was elected. Incumbent served notice of appeal to the district court, but gave no bond.

Henry Potratz was accused of contempt of court in violating a decree permanently enjoining him from maintaining a liquor nuisance in the Thirteenth judicial district of Iowa. On hearing, he was discharged, and thereupon a writ of certiorari sued out.

<p>Agency: ratification of unauthorized act. Where an agent without authority received money from a son in payment of his father’s indebtedness to the principal, under an agreement that he should succeed h’s father in the employ of principal, the principal on learning the condition on which payment was made is not entitled to retain the money without performing the condition.</p>

— TíoN. W. B. Quar-toN, Judge. ActioN in equity for an injunction to restrain the defendants from occupying or using a certain school house, from teaching school therein, and from interfering with the teaching therein of one- Estella Sullivan, and for general equitable rélief. There was a hearing on the merits, and a decree for the plaintiff. The defendants appeal.

— Hon. N. W. Macy, Judge. ActioN in equity upon a promissory note and to fore-'dose a mortgage securing tbe same. From a judgment in favor of defendants, plaintiff appeals.

— Hon. S. M. El wood, Judge. ActioN at law to recover damages for tbe death of Neils Jorgensen, resulting from, a collision on defendant’s line of road at tbe town of Denison. Trial to a jury. At tbe conclusion of tbe evidence tbe court directed a verdict for defendant, and plaintiff appeals.

— HoN. J. F. Clyde, Judge. Action at law to recover for damages alleged to bave been caused, by breach of contract for the shipment of freight. When the evidence had been fully submitted, a motion to direct a verdict for the defendant was sustained, and judgment was rendered in its favor for costs. The plaintiff appeals.

<p>.Appeal from Linn District Court. — HoN. William G. Thompson, Judge.</p> <p>Action for damages. Judgment for tbe plaintiff, and ithe defendant appeals.</p>

- — -Hon. George W. Waeeeield, Judge. Action in equity, commenced June 28, 1897, to establish a claim against the estate of A. Cochran, deceased, for one hundred and fifty dollars damages, caused to plaintiff by a fire set. out by deceased. Defendant demurred to the petition, which demurrer was overruled, and defendant ■elected to stand on his demurrer, and refused to further plead.

— How. M. J. Wade, Judge. Action commenced at law against Moreau Carroll, aided by attachment, to recover the amount due on a promissory note. The writ of attachment was levied upon premises in Iowa City which were occupied by the family of Carroll as a home. Notice of the action and of the issuing of the attachment was served on Carroll. by publication.

— Hon. T. F. Stevenson, Judge. ActioN at law to recover the possession of specific personal property or its value. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.

— Hon. S. F. Prouty, Judge. Suits in equity to enjoin defendant, who is an assessor for the city of Des Moines, from listing and assessing the property and capital stock of plaintiffs, who are corporations organized under the laws of this state for the purpose of (doing the business of fire insurance. The trial court denied the relief asked, and plaintiffs appeal.

— IíoN. W. I. Smith, Judge. (Supplemental as to Par. 3.) ÁNNA Pealoh, now deceased, brought this action in equity to quiet title in Her to. the middle 22 feet of lot 4, block 18, Grime’s addition to Council Bluffs, Iowa, and for an accounting for rents and profits.

<p>Testimony Rightly Taken: cannot latee be rendeeed erroneous. Admission of proof to support a quantum meruit is not error, 1 where both the contract and the quantum meruit are denied, though the contract was admitted after such testimony was taken.</p> <p>Submission: facts not disputed. Where plaintiff sued on a contract and a quantum meruit in separate counts, and defendant 2 admitted the contract on the trial, it was error to submit the quantum meruit.</p>

<p>'Appeal from, Cedar Rapids Superior Court. — HoN. Thomeas M. GibersoN, Judge.</p> <p>Habeas Corpus proceedings to secure tbe release of the plaintiff from the state penitentiary at Anamosa. There was a trial, and a judgment which denied the writ of habeas corpus, and remanded the plaintiff to the custody of the defendant, who is the warden of the penitentiary at Ana-mosa. The plaintiff appeals.</p>

<p>Foeeign GORPORATiOnS: Constitutional law. Code, 1897, section 1383, requiring all foreign insurance companies to pay a tax on their business in the .state as a condition of their doing business within its limits, but discriminating in favor of domestic com panies and against foreign ones by imposing higher taxes on the 5 latter, does not violate Constitution, article 1, section 6, providing 6 that all laws of a general nature shall have a uniform operation, and that the General Assembly shall not grant to any citizen or class of citizens privileges which, upon the same terms, shall not equally belong to all. The right exists to exclude a foreign corporation, hence its being admitted may have special conditions annexed.</p> <p>Same. Code, 1897, section 1333, requiring all insurances to pay a tax on their business done in the state as a condition of their doing 7 business within their limits, is nota local or special law, within the meaning Constitution, article 3, section 30, prohibiting the passage of local or special laws for the collection of taxes.</p> <p>Same. A tax imposed by Code, 1897, section 1333, requiring all insurance companies to pay to the state a certain per cent, of the premiums received for business done in the state as a condition 8 of their doing business within its limits, is a tax on business, and not on property, and hence is not invalid, under Constitution article 8, section 2, providing that the property of a corporation shall be subject to taxation the same as individuals.</p> <p>Same. There is no requirement, either in the Federal or State Constitution that a tax on the business of foreign corporations, 8 imposed by a state as a condition of their doing business within its limits, -shall be uniform upon all who are engaged in that business.</p> <p>Treaty rights. A corporation organized in Great Britain, having its principal place of business in that country,-is not a subject of 9 that country within the meaning of a treaty giving subjects of that country the right to do business in any of the states of the United States on the same terms as natives.</p> <p>Action Against State: what is not. A suit by a foreign insurance corporation against the state treasurer in his official capacity to recover taxes collected by him under Code, 1897, section 1333, 1 requiring all insurance companies to pay to the state a certain percentage of the premiums received on business done in the state as a condition of their right to do business within its limits, is not a suit against the state.</p> <p>Against state officers to recover taxes. Where a state officer, acting under the authority of a law, receives taxes paid to him 3 under duress and protest, an action will lie against him for the recovery of the same if the law is invalid, although he has placed the money to the credit of the state.</p> <p>Voluntary payment: What is not. The payment, by a foreign corporation, under protest, of a license tax imposed by a state 3 law claimed to be unconstitutional, will not be deemed voluntarily made when it was compelled, by threat of the auditor of 4 which the treasurer knew, to pay in order to protect its property and continue its business in the state.</p>

<p>Appeal from Greene District Gourt. — HoN. Z. A. Church, Judge.</p> <p>ActioN to foreclose mortgage. The defendants pleaded payment. Petition dismissed, and the plaintiffs appeal.—</p>

<p>Appeal from Linn District Court. — HoN. H. M. Remley, Judge.</p> <p>DEFENDANT was indicted, tried, and convicted of tbe crime of seduction, and from tbe judgment imposed appeals.</p>

<p>Appeal from Harrison District Oourt. — Hon. George W. Wakeeield, Judge.</p> <p>On the 21st day of March, 1895, plaintiff’s decedent was killed by one of defendant’s trains, and this action is to recover the damage sustained by the estate. The verdict was, by direction of the court, for the defendant, and the plaintiff appealed.</p>

<p>Appeal from Gedar Rapids Superior Oourt. — HoN. T. M. GibersoN, Judge.</p> <p>ActioN at law to recover for personal injuries alleged to have been caused by negligence on tbe part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.</p>

<p>Evidence: contents of letter: Proof of signature. In a prosecution for seduction, it is error to permit a witness to testify as to 2 the contents of a material letter he saw in the room of the prose-cutrix, when the only evidence connecting defendant therewith is that defendant’s name was subscribed thereto.</p> <p>CORROBORATION. An instruction in a prosecution for seduction which authorizes the jury to find corroborative facts, necessary to conviction, from the testimony of the prosecutrix, and char-3 acterizes the fact of her giving birth to an illegitimate child as a corroborative circumstance, is objectionable, as the corroboration must be by other evidence than that by the prosecutrix and the birth does not connect the defendant with the crime.</p> <p>Continuances: necessity for attaching absent witness. In a criminal case, where defendant fails to ask for the attachment of 1 a material witness who has disobeyed a subpcena, there is no error in denying a continuance on account of the absence of such witness.</p>

<p>Appeal from Poweshiek District Gourt. — HoN. JohN T. ' Scott, Judge.</p> <p>INDICTMENT for abortion. From a. verdict and judgment of guilty defendant appeals.</p>

<p>Appeal, from Lyon District Court. — Hon. William Hutchinson, Judge.</p> <p>The defendant was convicted of tbe crime of seduction, and judgment of imprisonment rendered against bim, from which, he appeals.</p>

<p>Rebuttal Evidence: discretion. It is within the discretion- of the 5 trial court to permit the state to introduce, in rebuttal, evidence properly a part of its main case.</p> <p>Non-experts. Where they testify to acquaintance, conversation and associations with accused, a question as to their opinion of his 4 sanity, based on what they saw of him and their acquaintance with him, is improper, as permitting them to take into consideration facts not testified to by them.</p> <p>Insanity: burden oe proof. The burden is on accused to estab-1 lish the defense of insanity by a fair preponderance of the evidence.</p> <p>Jury question: Instructions. To support accused’s plea of insanity due to an injury in infancy, there was evidence tending to show that his mother and one of her brothers were epileptics; that epilepsy might cause insanity, and that another brother was insane; that when accused was three years old he'fell on a stick, which penetrated his palate and had to be cut out, and that thereafter he was subject to moody and morose spells; he ran away from home when ten years old and never returned; some 2 years before the crime charged he developed symptoms of epilepsy, had frequent pains in his head, and at such times acted in a very peculiar manner; that, his wife having left him, he was greatly affected; that he professed a sincere love for his wife and child. Borrowihg a pistol from a friend, he went to where his wife was, and, after a brief interview, shot her. Held, that he was entitled to a charge that insanity, once shown to exist, would be presumed to continue.</p> <p>Opening- and Closing. Plea of insanity does not relieve the state 3 from proving every fact essential to make out the crime, and hence the state has the right to open and close.</p>

<p>Appeal from Buena Vista District Court. — Hon. W. B. Quarton, Judge.</p> <p>Indictment for libel. There was a trial to jury, verdict of guilty, and from the judgment entered thereon defendant appeals.</p>

<p>Brokers’ Commission. Defendant introduced plaintiff to G., with whom plaintiff formed a partnership, and defendant claimed commission of G. for having secured him a partner. G. stated that he had not anticipated paying any commission, but would do so in order to satisfy defendant, and transferred to him a note as his agent, with the proposition that if defendant could dispose 1 of the note he might retain a certain amount in consideration thereof and in consideration of whatever effort he had put forth in the partnership transaction. Held, that defendant had not earned any commission, and his right to one had not been recognized.</p> <p>Negotiable Paper: good faith buyer: Antecedent debt as consideration. Before defendant could sell the note, the consideration therefor was shown to be fraudulent. Held, that since defendant 2 held the note as agent of the payee, and received it for an antecedent debt, he was not a bona fide purchaser to the amount claimed by him for commission, as against the maker.</p>

<p>Appeal from Dallas District Court.- — Hon. James D. Gamble, Judge.</p> <p>Action to recover an amount alleged to be due onaprom-issory note made by the defendants to. the plaintiff’s intestate. The defendant George M. McYey filed an answer which set up grounds for. equitable relief, and the cause was tried as in equity. There was a hearing on the merits, and a decree for the defendant named. The plaintiff appeals.</p>

<p>Appeal from Dubuque Distfict Court. — HoN. C. M. Waterman", Judge.</p> <p>The defendant was accused of willful and corrupt misconduct in office, it being averred in the indictment that, as mayor of Dubuque, >a city of over twenty thousand inhabitants, and acting under a special charter, “the said city of Dubuque, under and in accordance with the provisions of ■chapiter sixteen, Laws of the Twenty-third General Assembly of the state of Iowa, theretofore had fixed the salary of the ■mayor of the city of Dubuque * * * at the sum of one thousand five hundred dollars per annum, which said sum of fifteen hundred dollars per annum was to be a full compensation” for all services rendered, and that, notwithstanding this, he willfully and corruptly demanded and received a further sum of five hundred dollars as alleged payment for services rendered to tbe city as chairman of tbe board of bealtb. Tbe defendant demurred to tbe indictment on tbe grounds, in substance, that it did not sufficiently allege a violation of tbe statute, that tbe statutes fixing tbe salary of mayors did not become operative until tbe adoption of an ordinance by tbe city council, thereafter passed, and no such 'ordinance was pleaded. This demurrer was sustained, and the state appeals.</p>

— HoN. Eobert Sloan, Judge. ActioN at law to recover-for personal injuries alleged to lave been caused by-negligence on the part of the defendant in not properly constructing and maintaining a county bridge. There was a trial by jury, and a verdict for the defendant. The plaintiff filed a motion for a new trial, which was overruled, judgment was rendered against- her, and she «appeals.

— HoN. Ben. McCoy, Judge. ActioN for forcible entry aud detainer. A jury was impanelled, and, after the evidence for the plaintiff had been submitted, a verdict for the defendant was returned by direction of tbe court. From the judgment rendered thereon, the plaintiff appeals.

<p>Appeal from Dallas Distñci Court. — HoN. Jaeces D. G-amble, Judge.</p> <p>The defendant was convicted of tbe crime of seduction, and from tbe judgment, wbieb required tbat be be imprisoned in tbe state penitentiary, be appeals.</p>

— HoN. S. M. Elwood, Judge. AotioN ■ f forcible entry and detainer tried originally before a justice of the peace, appealed by the defendant to the district court, and ended in that court by motion to direct a verdict for plaintiff, which was sustained. Defendant appeals.

— HoN. A. S. Blair,. Judge. ActioN in equity to bave set- aside and decreed to be void certain chattel mortgages and a general assignment for the benefit of creditors. There was a hearing on the merits,. and a decree, from which the plaintiffs Mills & Gibb and , John Pullman & Co., appeal.

<p>Trusts: widow and heirs. Where a widow collected money from her deceased husband’s estate, and paid the balance due on land 2 which he had bought and partially paid for, and took the deed in her own name, she holds the land in trust for his heirs.</p> <p>Statute of limitations. The statute of limitation does not begin .to run in favor of one holding land in trust, as against the bene-4 ticiary, until the former has clearly notilied the latter that he claims the land adversely.</p> <p>Adverse possession. The execution of a mortgage by one holding the legal title to land in trust will not be regarded as a repudia-5 tion of the trust, and an act of adverse possession, where it was' intended to benefit the estate, and was soon after satisfied by the trustee.</p> <p>Same. The act of a trustee in giving a third person an option, un-availed of, to buy minerals underlying land constituting the 6 trust estate, was not an act of adverse possession, as against the beneficiary.</p> <p>Laches. Where an heir pefmitted his step-mother to continue in possession of land which she held in trust for him and other heirs, and to appropriate its rents and profits for the necessary support of herself and such other heirs, without demanding or suing for his interest therein until eight or nine years after he became of age, he is not guilty of such laches as will defeat his suit for partition.</p> <p>Yendor and Purchaser: forfeiture: Contract. A vendor’s right to a forfeiture for the purchaser’s default in the payment of an 1 installment on an executory contract for a sale of land was waived by his subsequent acceptance of payment and the execution of a deed.</p> <p>Application for Widow’s Allowance: waiver. Where a widow fails, until discharged as administratrix, to apply under the statute for a necessary allowance out of the estate for support during twelve 3 months after her husband’s death, she waives all claim thereto.</p> <p>Abatement oe allowance claim. A widow’s claim to an allow-3 anee for support pending administration abates with her death.</p>

— Hon. Z. A. Church, J udge. Petition to va.ca.te a judgment and for a new trial of a case entitled “Matt McCormick against Catherine McCormick,” in which it was sought to have defendant, plaintiff herein, decreed to be of unsound mind, and to have a .guardian appointed for her. The grounds stated for a new trial are that the original proceedings were fraudulent, and that plaintiff was mislead by her counsel and others, and did make defense thereto, as she had intended.

— ITon. W. DO. Tedford, Judge. Action in partition. Defendant W. W. Young claimed sole title to a part of the real estate involved. Prom a decree in his favor, plaintiffs appeal.

— IloN. W. R. Green, Judge. Action to' recover upon a policy of life insurance. There was a trial to jury. At the close of the plaintiff’s ease,'under direction, of tbe court, a verdict was returned in defendant’s favor. From the judgment rendered thereon, plaintiff prosecutes this appeal.

— Hon. G. W. Burnham: Judge. INDICTMENT for murder of the first degree. Verdict for murder of the second degree, and a judgment of life imprisonment. The defendant appealed.

T. N. Pee, Judge. Action to recover one thousand two hundred and forty-two dollars and sixty cents commission for selling, or causing to be sold, a .certain farm for the defendant. A jury being waived, the case was tried to the court, and judgment rendered in favor of defendant. Plaintiff appeals.

<p>Evidence : Hearsay. To admit a conversation between a witness and another, so that the witness may fix a date with reference to such conversation, does not constitute the taking of hearsay and is proper.</p> <p>Review o-e -conbeict in evidence. Evidence that property was stolen was undisputed, and there was also evidence that defendant had realized a part of the profits from a sale of the property, and that he had confessed. Meld, sufficient to sustain a conviction, notwithstanding evidence tending to show an alibi.</p>

<p>Appeal from Dubuque District Court— Hon. J. G Husted, Judge.</p> <p>Action for damages. From judgment on verdict the defendant - appeals.</p>