Volume 111 — Iowa Reports

— Hon. C. A. Bishop, Judge. An information was filed against defendant for using gasoline in illuminating a building, without the use of .the Welsbach hydrocarbon incandescent lamp- or lamps. The case was tried to a jury in the district court, on appeal, upon a stipulation of facts, resulting in a directed verdict of not guilty, and the state appeals.—

— Hon. W. B. Quarton, Judge. Action to recover upon, certain agreements extending tbe time of payment of four promissory notes, in wbicb said ■agreements it is claimed defendant assumed and promised to pay such notes. Tbe agreements were signed by E. S. Ormsby, trustee, and tbe defense is that be is not personally liable tbereon, and by cross bill it is asked that they be reformed. Tbe cause was tried as an equitable action.

— How. J. H, Apple-gate, Judge. Dependant procured a judgment against plaintiff for breach, of promise and seduction. This is an application, to reverse, set aside, and vacate that judgment on the ground that when it was rendered plaintiff was a minor, and was not defended by guardian. Plaintiff also alleges that he has a good defense to the action in which the judgment was rendered, and that various errors were committed by the court in the trial of that action.

— Hon. H. M. Eemley, Judge. Action to recover damages for au alleged breach of a written contract. The defendant answered, denying the alleged breach and that plaintiff was damaged. It was agreed on the trial that, if plaintiff isi entitled to recovei at all, it is in the sum of two hundred and fifty dollars. At the conclusion of the evidence the court, on motion of the plaintiff, directed a verdict in his favor for two hundred and fifty dollars and rendered judgment thereon.

<p>1 Tenancy at Will: possession after termination of written lease. Where a tenant from year to year continues in possession of leased premises with the assent of the landlord, after the termination of the lease, he becomes a tenant at will, under Code, section 2991, providing that any person in possession of real estate with the assent of the owner is presumed to be a tenant at will until the contrary is shown. The contract creating the relation of landlord and tenant is implied in every respect as before save that of duration, and payment was due as provided in the written lease.</p> <p>2 Notice to terminate: Sale of premises. Under Code, section 2991, requiring that thirty days’ notice in writing must be given by either party, to terminate a tenancy at will, the conveyance to one as trustee, by the landlord of premises held by a tenant at will does not terminate the tenancy.</p> <p>3 Lien for rent. The lien for rent under a tenancy at will, resulting from possession after the termination- of the written lease, reaches ahead only for the length of time necessary to end a tenancy by notice, and such lien is junior as to rent described below to that of a mortgage on property kept on the leased premises, which mortgage is executed after the termination of the written lease and prior to the accrual of rent due.</p> <p>Rule applied. On April 24, 1896, a tenant at will executed a chattel mortgage on his personal property located on the leased premises. The landlord conveyed the premises to a trustee on Jan. uary 1, 1898, and also assigned to the trustee unpaid rent. The rent was paid until January 1, 1897. On April 26, 1898, the trustee instituted .proceedings for the recovery of the rent, aided by a landlord’s attachment. The property attached was replevied by the plaintiff under his chattel mortgage. Held, that under Code, section 2991, requiring thirty days’ notice in writing, to terminate a tenancy at will, the lien of the landlord for unpaid rent reached ahead only for the term required to terminate the tenancy, and hence the lien of the plaintiff was ■superior to that of the landlord.</p>

— Hon. H. Bank, Jr., Judge. John Scott died intestate, holding the record title to certain real estate, leaving Sarah J. Scott, his widow, Ida Rotter, his daughter, wife of Michael Rotter, and John M. Scott, his son, his only heirs, surviving him.

— Hon. O. H. Kelly, Judge. The defendant was indicted for keeping a nuisance. His demurrer to the indictment was overruled, and he appeals.

— Hon. S. M. Weaver, Judge. The defendant was tried on an indictment for nuisance, in the sale of intoxicating liquors. He was convicted, and. appeals.

— Hon. Thomas F. Stevenson, Judge. Action for a peremptory writ of mandamus commanding the defendant, McVicar, as mlayor of said city, to attest the signature of the city auditor to a warrant issued by said auditor on the said city treasurer in favor of the plaintiff. The defendant, McVicar, answered, and the city of Des Moines intervened. The issues will appear in the opinion.

— Hon. T. M. Fee, Judge. The plaintiff, as guardian, asks that the title to cer-tain real estate be quieted in her ward, Gracie Jordan, as against defendants (appellants), and for an order to sell said real estate. The question involved is as to the proper construction to be given to the last will and testament of James H. Jordan, deceased. On hearing had, said will was construed as claimed by the plaintiff, and decree rendered accordingly, from which the defendants appeal.

<p>Appeal from Dubuque District Court. — Hon. J. L. Husted, Judge.</p> <p>Action on a claim against defendants, as executors of C. W. Robison, deceased, who pleaded the amount paid on a note of plaintiff, and another, as guarantors, as a counterclaim. There was a verdict and judgment for the plaintiff. Both parties appeal, that of defendants being first perfected.</p>

— Hon. W. S. Withrow, Judge. Suit in equity to1 enforce a trust in certain real estate in favor of plaintiff, to redeemj, and for conveyance of the title thereto1. The trial court sustained a demurrer to plaintiff’s reply, and on the hearing dismissed the petition. Plaintiff appeals.

— IIon. Walter I. Smith, Judge. 1 Action at law for judgment'on a negotiable promissory note for five hundred dollars, executed December 21, 1896, by the defendant to W. D. G-ibbon, due July 15, 1897, and indorsed: “Pay A. M. Worden, or order. [Signed] W. D. Gibbon.” “Pay F. H. Wray without recourse on me. [Signed] A., M. Worden.” “Pay to Charles E. Putnam, Cashier Merchants’ National Bank of Cedar Rapids, Iowa. [Signed] F. H. Wray.” The defendant answered admitting the…

— -Hots. W. I. Smith, Judge. The defendant appeals from a judgment convicting him of having committed the crime of incest with a sister. — ?

— IIon. W. S. Withrow, Judge. Action in equity to cancel an assessment for paving a street, made against real estate belonging to plaintiff. The answer put plaintiff’s ' right to the relief in issue. There was a trial to the court, and from a decree dismissing the petition at plaintiff’s costs, he appeals.-

— Hon. John T. Scott, Judge. 1 The defendant was indicted for causing a nuisance, in that be unlawfully did use “a certain building and restaurant situated in tbe town of Mucbaldnock, in said Mabaska county, Iowa, under tbe control of said Ted Evans, for tbe purpose of unlawfully selling certain intoxicating liquors, to-wit, rum,” etc. Tbe defendant pleaded not guilty, and on tbe trial tbe is one room building.

— Hon. A. B. Thornell, Judge. The ^plaintiff stepped into a hole in defendant’s sidewalk, April 21, 1897, causing her to fall into a ditch by it and break her arm. This action for damages was begun August 19, 1897. After the evidence on the part of plaintiff •had been introduced, the court directed a verdict fpr the defendant on the ground that no notice specifying the circumstances of the injury had ever been served. From the judgment rendered thereon the plaintiff appeals.

— Hon. John T. Scott, Judge. The plaintiffs are the trustees and township clerk of West Lucas township, Johnson county, and the defendants are the mayor, members of the city council, and health officers of Iowa Oity, constituting Iowa City township; in the same county.

— Hon. Thomas F. Stevenson, Judge. Action in equity upon a certificate of life insurance, in which the plaintiff is named as the beneficiary. There was a decree for tbe plaintiff. Tbe defendant appeals.—

— Hon. T. M. Fee, Judge. Action at law, in which plaintiff seeks to recover the sum paid by him to defendant, on a contract which, it is claimed, plaintiff rescinded because of the fraud of defendant. Issue was tendered, and the case tried to a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals.

— Hon. Rige H. Bell, Judge. Action at law for damages due, as is alleged, to defendant’s negligence in operating or caring for its fire apparatus. A demurer to the petition was sustained, and plaintiff appeals.

— Hon. J. L. IIusted, Judge. Franc W. Altman and twenty others, owners in severalty, of lots and parts of lots abutting on Grandview avenue in said city, bring this action in equity to cancel and discharge as against them and their respective lots a certain special tax levied to pay for paving said avenue, and to purpetually enjoin the collection of said tax.

— TIon. William G. Thompson, Judge. The plaintiff’s land is north, and that of defendant Baughman south, of a public highway. The road had been graded somewhat, and a tile culvert put in for the passage of water. It is claimed that surface water gathers in a pond on defendants’ land, and runs through the culvert on that of plaintiff to his damage.

— Hon. John T. Scott, Judge. Plaintiff, a judgment defendant in three judgments, brings these actions against the sheriff and the other defendants named, plaintiffs in said judgments, to enjoin the' sale of real estate on executions issued on said judgments, on the ground that the judgments were barred by the statute before the executions were issued/ Defendants resisted, claiming that, the matters stated in the petition do not entitle the plaintiff to the relief demanded.

— Hon. A. J. House, Judge. Action on account for the price of certain cattle sold by one Bohart to defendants. Plaintiff claims as the assignee of Bohart. The defenses were fraud and breach of warranty, the particulars of which will appear in the opinion, so far as necessary to convey an understanding of the points ruled upon. There was a trial to jury, verdict and judgment for plaintiff, and defendants appeal.

— Hon. W. F. Bran-nan, Judge. Suit in equity to impress a trust on certain funds in the hands of the defendants, as assignees of a banking partnership known as A. A. Ball & Co., and for judgment for the amount of plaintiff’s claim. The trial court, denied the relief asked, and plaintiff appeals.

— IIon. Thomas P: Stevenson, Judge. Action to recover rent. There was a trial to a jury, and a verdict and judgment for the plaintiff, from which defendants appeal.

— Hon. George W. Wakefield, Judge. Action for damages resulting from a bite of defendant’s dog. The defendant appeals from a judgment against him.

— Hon. William G. Thompson, Judge. In the case of Schoonover v. Osborne. 108 Iowa, 453, a writ of attachment was levied on the land of David Osborne. Ella E. and. Adella D. Osborne and G. W. and G. L. Lovell intervened, alleging they held liens prior and superior to that of such levy. The issues joined by interveners and plaintiff were transferred to the equity side of t^e calendar.

<p>Appeal from Hardin District Court. — Hon. D. R. Hindman, Judge.</p> <p>Action on promissory note. Defense, usury. The defendant appeals from judgment on a verdict against him.</p>

— Hon. D. R. Hind-man, Judge. Action to restrain the collection of a special assessment for guttering and curbing in front of plaintiff’s lots. Judgment for defendants. Plaintiff appeals.

— Hon. William G-Thompson, Judge. Action in equity to enlarge alimony granted plaintiff in original decree, and to establish the same as a lien upon certain land of defendant. There was a decree for the plaintiff establishing the lien as prayed. Defendant appeals.—

<p>1 Partition Judgment: what is adjudicated by: Accounting subsequent. A decree partitioning real estate, fixing the interest of the parties, and ordering its sale, is an adjudication of such matters, although no sale was had; but an accounting up to date and the striking of a balance between the parties is justified in a subsequent action for partition.</p> <p>5 Same. A partition of real estate was had, and sale ordered, which sale was never made. In a subsequent suit for partition of the same property an accounting was decreed between the parties, and items of expenditures and improvements made prior to the first decree were allowed. Held, erroneous.</p> <p>5 Partition: allowance fob improvements. One'who claims property sought to be partitioned, as sole .owner, should be allowed, on partition, for all improvements made in good faith.</p> <p>6 Recovery of bents and profits. One seeking the partition of property in .possession of defendant, claiming sole ownership, cannot recover for rents, no evidence being given as tó the rental value of the premises, or of any rent actually received of any considerable amount.</p> <p>3 jAppeal: review for party not appealing. Where defendant in partition claimed sole ownership and former adjudication, and udgment was found against her on the former branch of the ease, from which she does not appeal, her claim cannot be considered on an appeal by plaintiff.</p>

— Hon. S. M. Elwood, Judge. 1 Sarah J. Knox was at one time the guardian of Alice Knox, a minor. She received, as such guardian, one thous- and eight hundred dollars in money from her husband, who was the father of Alice Knox. One thousand dollars of this amount she invested without an order of court, in the purchase of a note, and real estate mortgage on Dakota land, from defendant Kichards.

— Hon. F. C. Platt, Judge. Action on a certificate of a mutual insurance company. The case has been here twice before'. 82 Iowa, 360, 104 Iowa, 707. Decree on supplemental petition as prayed, and defendant appeals.

— Hon. L. E. Eellows, Judge. On the first day of December, 1897, there was filed with the county auditor of Eayette county a statement of consent to the sale of intoxicating liquors in said county. At the January, 1898, session of the board of supervisors, this statement was canvassed, and a finding made by the board that it contained the names of more than sixty-five per cent, of the legal voters of the county who voted at the last preceding general election.

— Hon. D. R. Hind-man, Judge. Action at law upon a promissory note. Defenses, fraud, and want of consideration, and that plaintiff is not an innocent holder. There was a jury trial, and from a verdict and judgment in plaintiff’s favor defendant appeals. — •

— Hon. E. O. Platt, Judge. This is an action to recover the cost of support of defendant George E. Scott in the hospital for the insane at Independence, where for a time he was confined as a patient. The defendants are husband and wife. George E. Scott is without money or property, and it is sought to hold the wife for the expense of his keeping. The wife demurred to the petition.

— Hon. W. F. Conrad, Judge. . 1 On the fourteenth, day of September, 1896, tbis action was brought by the plaintiff against the defendants D. B-Lyons and W. F. Stotts upon certain notes. It was aided by attachment, and a levy was made upon stock issued to D. B. Lyons by the New England Syndicate and the. Vermont Syndicate; both corporations organized under the laws of this state, with their principal place of business in Des Moines.

— Hon. O. P. Holmes, Judge. This is a contest as to priority between the plaintiff, as mortgagee of certain real estate, and the- defendant, the holder of a sheriff’s deed made in pursuance of a sale of the same property on foreclosure of mechanics’ liens. Decree was rendered in favor of plaintiff. .Defendant appeals. — *

— Hon. A. W. Wilkinson, Judge. Suit in equity to redeem certain lands from tax sale. From a decree dismissing the petition, plaintiff appeals.—

— Hon. P. B. Wolfe, J udge. Action by a drawee for money paid to. an indorsee of a check, who acquired it on a forged indorsement of payee. The fadts are fully stated in German Sav. Bank of Davenport v. Citizens' Nat. BankJ 101 Iowa, 531, where recovery -Was had by the drawer from drawee for money withheld because of such payment.' The defendant appeals from j udgment against it.-

— Hon. Ben McCoy, J udge. Action at law to recover damages for false and fraudulent representations and breach of warranty in the sale of hogs. There was a trial to jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

— Hon. William G. Thompson, Judge. 1 Plaintiffs allege, as their cause of action, that they are owners by inheritance from their parents, Mary and William Olver, of the described sixty acres of land, upon which there was a valuable spring, used for household and farm purposes; that prior to May 4, 1870, the Burlington, Cedar Rapids & Minnesota Railway Company purchased of said Mary and William Olver a 'right of way across said. land, and, as a part of the consideration,…

— Hon. James D. Gamble aud A. W. Wilkinson, Judges. Action iu equity by a mortgagee to effect redemption from a prior mortgage which had been foreclosed. From a decree in defendants’ favor, plaintiff appeals.

<p>2 2 4 6 Murder of Bastard: indictment: Failure of proof and variance. An indictment charged the murder of one James Cunningham, Hepp, omitting all other description of deceased. Defendant was convicted of the murder of an illegitimate horn to James Cunningham and Ida Hepp. A motion to direct a verdict was overruled, one of the grounds being that there was no evidence that James Cunningham Hepp ever existed. Held:</p> <p>a. While it is true that a bastard bears the name of neither parent and the grand jury had no authority to give it a - name combining that of its parents, yet the case is governed 'by Code, 5286, which provides that where certain offenses are “described in all other respects with sufficient certainty to identify the act, an erroneous allegation of the name of the person injured is not material.”</p> <p>b. Were the question open, some of the members of the court would construe this section to be inapplicable to cases where, like here, no description beyond the name given in the indictment is attempted of deceased.</p> <p>c. But the rule established is, that if an offense is charged in the indictment and from facts in evidence, the court is satisfied defendant was not misled, this warrants the conclusion that the act intended to be charged was sufficiently described or indicated.</p> <p>d. Where the one injured is described by name alone, extrinsic facts may be considered in order to determine whether the act charged was so specifically pointed out as not to mislead the defendant.</p> <p>e. Facts outside of the indictment may be considered in determining whether defendant understood, the specific charge intended to be made..</p> <p>f. Defendant was not misled by the misnomer.</p> <p>g. Under the circumstances it was not error for the eourt to instruct that the intention of the indictment was to charge the killing of the infant child of Ida Hepp, instead of. leaving it to the jury whether the nameless infant was the person.whom defendant was charged with killing.</p> <p>5 Murder: evidence: Review of verdict. Defendant, the father of an illegitimate, accompanied its mother to a place where they were strangers and where she gave birth to the child. On returning home with the child, about two weeks thereafter, early in March, they wrapped it in a shawl, and on the way they went from one depot to another at a certain place to make a transfer. Defendant procured a buggy, and drove by an unfrequented road to the other depot, where the mother alighted, leaving the child with defendant, and it was not seen alive thereafter. He then drove towards the fair grounds, and a witness saw the same team there about the same time. The infant’s dead body was found in a good state of preservation two weeks after, near the fair grounds and identified. It lay on the ground, and had wounds on its person sufficient to have caused death. Defendant had time to drive to where it was found, and return and take the train with its mother, which he did. When he returned the team he took from his buggy a shawl, and, a short time after, an infant’s robe was found in the manger in front of the horses. Up to leaving the depot with the child, defendant denied none of the facts established, but claimed to have driven back into town and delivered it to a woman from a distant city, under a pre-arrangement with her. But this woman was not seen by any one. Though the testimony was conflicting, there was expert evidence that the body could, without decomposing, have lain where it did from when defendant was last seen with it until it was found. There was other evidence to show that it must have been alive later than the day in question, but it was inconclusive and doubtful. There was also evidence of an admission of guilt by defendant. Held, to amply support a conviction.</p> <p>11 Harmless Error: Defendant claimed that, he could not have committed a murder as early as charged because the body would in that event have shown greater decay when ■ found. Under these circumstances, it did not harm defendant to let the State show that a doctor produced by it, and who testified on the progress of- decomposition, had obtained his experience with bodies treated with a preserving compound.</p> <p>7 Same. Assuming it to be charged by the court that if the jury found murder was not done on the day charged in the indictment, there must be substantive evidence that the killing was done on a different day, every circumstance pointing to motive and intent may be considered with relation to any particular date on which an alleged crime may have been committed and evidence of circumstances showing motive, intent, and opportunity to commit infanticide, and of an admission of guilt, warrants a conviction, though the jury may determine that the killing was not done on the day charged.</p> <p>8 Included offenses: Killing of infant. In a prosecution for murder in the first degree, where no one witnessed the killing, the victim being an infant, the court properly submitted the included offenses of murder in the second degree and man-slaughter, warranted under the facts which might have fairly been found, but no offense lower than manslaughter could have been committed.</p> <p>10 Instruction on good character. In a prosecution for infanticide an instruction that, if the jury found -defendant guilty, evidence as to his humane and kindly disposition towards children constitutes an ingredient to be considered in passing on the grade of his offense, without reference to the apparently conclusive or inconclusive character of the other evidence, and that the jury were to consider this evidence throughout their deliberations, and give it such weight as they thought it justly entitled to, was proper, and did not limit the jury in their consideration of-such evidence.</p>

<p>Embezzlement: agent to sell lands Termination of apeney. Defendant, a real estate dealer, secured a power of attorney to sell a customer’s land for Mm and a deed to same, with the grantee left blank. He filled in the -name of an employe, who executed a mortgage to the customer, and also deeded him certain Nebraska lands, recording the deed, but never actually delivering it to the customer, and later conveyed the equity to the defendant, who sold it. The customer afterwards made several offers to sell the Nebraska land, and refused to mortgage it, saying he wished to keep it clear. Held, that'the transaction was voidable, and not void, and that .the customer had by his actions ratified the same, that thus, the relation of principal and agent had been terminated, that by this ratification, the agent became owner of the land and, hence, defendant was not guilty of embezzlement in refusing to account for the proceeds of the sale of the equity in the customer’s ' ' lands.</p>

<p>Appeal from Delaware District Court. — -Hon. Franklin C. Platt, Judge.</p> <p>Plaintiff is the publisher of a newspaper known as-the Delaware County News, and defendant is the publisher of the Manchester Press. Bronson & Carr are the publishers of the Manchester Democrat. All the above newspapers are published in Delaware county, and each publisher filed with the board of supervisors his certified statement of alleged yearly subscribers. Plaintiff filed exceptions to the-statements made by the defendant and by Bronson & Carr, and defendant filed exceptions to the statement made by plaintiff. On the statements and objections thus filed, a-hearing was had before the board of supervisors resulting in the selection of the Manchester Pr'css and the Manchester Democrat in which to publish the proceedings of the board of supervisors. From that decision plaintiff appealed to the-district court, where the case was heard, with the same result as before the board. Plaintiff appeals.</p>

<p>1 Delivery of Notes: sufficiency: Evidence. A banker wrote out a note to his daughter, in her presence, which was found in an envelope at his death, deposited in the separate pocket of a note case in his safe at the bank. Envelope also contained certificates of deposit written by him at the time, and other notes indorsed by him in blank. Decedent had written his daughter’s name on the envelope, with a statement that the notes were held as collateral security, and had signed his .name. Held, that such facts showed that decedent had kept the notes as his daughter’s banker, for safe-keeping, and for. the purpose of collecting and crediting the proceeds of the other notes found therewith, which act constituted a sufficient delivery of the notes.</p> <p>1 Redeliveky foe safe keeping. Where notes given by decedent to his daughter as collateral to a note executed by him to her for a' bona fide indebtedness were delivered to the daughter, the fact that she returned them to decedent, who was a banker., for safe keeping and collection, did not deprive her of her rights in the notes so pledged as collateral.</p> <p>1 Estate: claims: Evidence. Where one of decedent’s former em-ployes testified that decedent had requested her in 1895 tty figure the interest on his note to his daughter, and there wa3 then nearly $2,000 due thereon, and that decedent spoke of having the note . renewed, saying that he had borrowed the money, and another employe testified that during the fall of the following year decedent and the daughter figured the interest on the note, and her testimony showed that the note in question, dated October 19, 1896, for $2,310 and found in decedent’s safe, w'as then executed by him, such' evidence showed a bona fide indebtedness, constituting a valid claim against decedent’s estate.</p>

<p>1 Burglary: presumption as to attemt to steal. The presumption is that a person who breaks and enters the house of another in the nighttime, did so with intent to steal therefrom, and evidence that one who is shown to have so entered a, house was discovered in a room occupied by a female, with his hand on her person, and that, on her making an outcry, he escaped without taking anything is not so inconsistent with a verdict finding .that he entered with an attempt to .steal as to authorize setting it aside.</p> <p>2 Of intent. In a prosecution for breaking and entering a house with intent to steal, where the defense denies the attempt to steal, and introduces evidence tending to show that defendant entered for the purpose of having unlawful sexual intercourse with a female, in whose room he was discovered, evidence that the owner of the house had valuable property therein, and that defendánt knew about it, is admissible as bearing on the question of intent. ,</p> <p>2 Evidence: Conclusion. In a prosecution for unlawfully breaking into a house with intent to steal, a question to the owner of the house as to whether he had any valuable property that he knew the defendant knew of, calls for a conclusion and is „ incompetent.</p> <p>4 Jury question. Defendant broke and entered a house in the nighttime, and was discovered in a room in which a female was sleeping. He awoke the girl by placing his hand on her person, and when she attempted to make an outcry he placed his hands over her mouth. Another girl was sleeping with the girl on whose person he placed his hands, and her parents were sleeping in the adjoining room. He had thrown the doors of the house open and lighted a lamp. On the girls making an outcry he escaped without taking anything with him. Held, not to raise a presumption that defendant broke and entered the house with intent to commit an assault on the girl, but whether he entered for that purpose or to steal, was a matter for the determination of the jury.</p> <p>5 Ímpeachment: Minutes before magistrate. Minutes of the testimony taken at a preliminary examination of one charged with a burglary, are inadmissible for the purpose of impeachment, where the witness testified to the same facts on trial that she did on preliminary examination.</p> <p>3 Instructions. In a prosocution for breaking and entering a house in the nighttime with intent to steal, an instruction that the jury should consider that the owner was possessed of but very little valuable property, if they find that such was the fact, and the defendant’s knowledge thereof, if he had such knowledge, as bearing on the question of the intent with which he broke and entered the house, was properly, refused, when there was no evidence that defendant had any knowledge of what property the owner had.</p>

<p>1 City Contracts: mechanic’s lien: Defense. Where an agreement between a city contractor and a materia.1 man. filed with the board of public works, provided that 30 per cent, of the certifieates issued for the work done by the contractor be assigned to the material man as collateral for payment of material, and when the material used in-each section into which the work was divided was paid for, the certificates issued and assigned for such section should be surrendered, it was no defense, to an action by the material man against the city to establish a mechanic’s lien for material used in constructing subsequent sections, that plaintiff had been assigned sufficient certificates to pay his entire claim, and had surrendered the same, such certificates having been assigned to secure material used in previous sections which had been paid for.</p> <p>3 Burden of proof: As to payments made Toy it. . Where the city’s defense to an action for mechanic’s liens for materials fur-nished a contractor was that it had paid out all the contract price on other claims, the burden of proving that such claims were legally filed was on the city, because such fact rested peculiarly within its own knowledge.</p> <p>4 Appeal: argument: Review. On appeal, matters not discussed in argument will not be reviewed.</p>

<p>Appeal from Polk District Court. — Hon. C. P. Holmes, Judge.</p> <p>This action was originally commenced at law to recover a money judgment upon certain contracts. On motion of the defendant the case was transferred to and tried as in equity, over plaintiffh objections, which objections he now waives, and the case is therefore before us for consideration as in equity, on the appeal of the plaintiff from a judgment dismissing his petition.</p>

<p>1 Libel: what is. Complainant was a county superintendent of schools, vand defendant published of him that there had not been a meeting of teachers in the county at which complainant had presided, at which the rules of common decency had not been outraged; that defendant was irreligious, an infidel, and an unbeliever; that he was dishonest; that it was known that he opposed the petition of the people who desired Congress to legislate so as to have Almighty God in the constitution; and that it was generally believed the defendant contributed an article that was a disgrace to any decent man. Held, that on a trial of the prosecution for libel, the court properly charged the jury that each of the statements, was, of itself, libelous, and warranted conviction, unless justified, since the statute defines libel to be the malicious defamation of a person, tending to provoke him to wrath, or to expose him to public hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence and social intercourse.</p> <p>9 Same. Where defendant published that complainant was vulgar, such statement, of itself, was libelous, if made in the sense that complainant was low, base, and unfit 'for the society of refined people.</p> <p>10 Privilege. Where on trial of a prosecution for libel, defendant claimed that, as the one of whom the statements were made was a candidate for office, the publication was privileged, the court properly instructed the jury that the publication was not privileged unless made for the sole purpose of advising the electors.</p> <p>2 Examination op complainant: Rebuttal. Where defendant had published that complainant was dishonest, and, on prosecution for libel, defendant," as part of his justification, offered evidence to show that he had failed to pay debts contracted while living in another state, it was proper to ask complainant in rebuttal, as to his family, means, and occupation while there.</p> <p>5 Same. Where on trial of a prosecution for libel, after defendant as part of his justification, had offered to showthat complainant at one time had a woman of had repute when his wife was absent, it was proper to allow complainant to show how many children he was taking care of at the time, and their ages, as showing the circumstances surrounding the complainant at the time when it was claimed he was consorting with lewd women.</p> <p>6 Same: Reputation. Where defendant, as part of his justification, had offered evidence tending to show that complainant had associated with lewd women, it was proper to admit testimony that there was no general talk in the community where complainant lived, that he was of lewd character.</p> <p>3 Evidence: Exclusion. It was not error to refuse to permit defendant to state the contents of a letter, which he then had in his possession in the court room, and which was immediately introduced and marked as an exhibit.</p> <p>4 Same. On trial of a prosecution for libel it was proper to reject the testimony of a minister as to the propriety of an article not in evidence, but which it was claimed was published from a printing office in which complainant at one time worked.</p> <p>7 Witness: attachment: Payment of fees. Code, section 1298, declares witnesses in criminal cases may demand 'their fees in advance, unless the subpoenae was issued under order of the judge; and section 46,62 that a witness not paid his fees as required shall not be compelled to attend. Held, that where defendant in a criminal case subpoenaed a witness and the subpoenae did not show that it was issued under an order of a judge, and witness demanded his fees, which were not paid and witness failed to attend, the court properly refused to issue an attachment compelling attendance.</p> <p>8 Argument of Counsel: preservation for appeal. Where the taking of opening statement of counsel by the reporter was waived and the statement not preserved by a bill of exceptions, such statement cannot be reviewed on appeal.</p>

<p>Appeal from Des Moines District Oourt. — Hon.. James H. Smyth, Judge.</p> <p>The plaintiff recovered judgment against M. Gerlinger, June 6, 1898, for the sum of one thousand one hundred and thirty-three dollars and sixteen cents and costs, on: a note executed by him June 1, 1893, for funds borrowed of certain trustees of the Reformed German Presbyterian Ohureh, of whom he was one. He was then, and continued to bo the owner of lot 11 in Highland addition, and the east two acres of lot 5 in Wade’s subdivision of section 9, township 69, in Burlington, until about the time the above suit was begun, when he conveyed said property to- his daughter, M. R. Hapke, of Quincy, 111. This is an action to set aside the deed, and subject the premises to the satisfaction of the judgment. The petition was dismissed, and plaintiff appeals.</p>

-Appeal from. Lee District Court. — Hon. Henry Bank, Jr., Judge. Action in. equity to enforce specific performance of an •oral promise of one A. L. Connable, now deceased, to give plaintiff a child’s portion of his estate. Defendants are the •devisees and executors of such estate. From a decree dismissing plaintiff’s petition, she appeals.

— Hon. Rice H. Bell, Judge. Plaintiff, the owner of a certain lot in the defendant city, brings this action to enjoin the sale of said lot for .nonpayment of a special tax levied against it by the defendant, on the ground that said tax is illegal and void. Defendant .answered, in effect denying that the tax is illegal or void, and on hearing had a permanent injunction was granted as prayed. Defendant appeals.

— Hon. S. M. Elwood, Judge. Action in equity to quiet the title to land. There was a trial upon the merits, and a decree for the plaintiffs. Defendants appeal.

<p>1 Conversion by Tenant: pleading. Under Code, section 2992, deciaring that a landlord shall have a lien for rent on all crops grown on the leased premises for six months after the expiration of the term, a petition to recover for the conversion of oats raised by the tenant on the premises leased, and sold by him to defendant, alleging the making of the lease at an agreed and unpaid rent, the raising of the oats during the term, and showing suit brought within six months after the rent accrued, was not demurrable for failure to allege that' the landlord’s claim had been adjudicated and his lien established.</p> <p>4 Estoppel. In action for conversion of oats on which plaintiff had a landlord’s lien for unpaid rent, evidence that the tenant had sold defendant grain in previous years, while he had held the land under similar leases, was insufficient to estop plaintiff from asserting his lien on the oats, where defendant, where purchasing the grain previously sold, had no knowledge where it had been raised or that it had been grown on leased land, and it appeared that the landlord had not relied on the tenant’s personal -responsibility</p> <p>2 Evidence. Where land, was leased by separate and independent leases for each of several years, evidence that the tenant had sold live stock raised on the land, prior to the year for which suit was brought to "enforce the landlord’s lien for unpaid rent, was inadmissible, since such live stock was covered by a different lien from that relied on.</p> <p>2 Order of proof. In an action by a landlord for the conversion of oats raised on the leased premises, against which the landlord had a lien for unpaid rent, and sold by the tenant to defend-ant, the rejection of the defendant’s offer to prove that the tenant had sold hogs raised on the premises during the lease term was proper, in the absence of an offer to show that plaintiff had notice of such sale.</p> <p>3 Harmless rejection. The erroneous rejection of evidence was harmless, where the facts sought to be proved were otherwise . fully shown during the trial.</p>

<p>1 Settlement of Claim by Agents authority: Ratification. Where an indebtedness was settled and receipted for in full by plaintiff’s agent on acceptance of a note for a lesser amount and a mortgage securing the same, which notes and mortgage were turned over to plaintiff, who kept the same, and never tendered their return, though advised by defendant’s answer, filed within three months thereafter, of the cancellation of the indebtedness, and their procurement by means thereof, no recovery could be had for the balance of such indebtedness nine months thereafter, though such cancellation was without authority, since the acts constituted a ratification.</p> <p>2 Special Interrogatories s It was not error to refuse to submit a special interrogatory to the jury concerning the authority of an agent, when the act of the agent sought to be repudiated had been ratified.</p> <p>3 Same. Where defendant claimed that an understanding she was to pay a balance on an account was made after settlement, and without consideration, and plaintiff claimed it was made before settlement, it was not error to refuse to submit an interrogatory so framed that the answer would not have indicated whether such understanding was before or after settlement, since such answer would not have found an ultimate fact, determinative of the case.</p>

— Hon. A. R. Dewey, Judge. Plaintiffs brought action against defendants Jordan, R. A. Scott, assignee, and others, upon five promissory notes, each of which was declared upon in a separate count of… Held: on this motion, that in the computation of attorney’s fees plaintiffs were entitled ■ to the per cent, provided by law calculated upon each note separately, they having been, given at different times, and being payable at different dates.

<p>Appeal from Audubon District Gourt. — Hon. Walter I. Smith, Judge.</p> <p>The defendant appeals from judgment rendered on a verdict against him.</p>

— Hon. C. P. Holmes, Judge. Action of replevin to recover goods sold under false representation of the purchaser. There was' a trial to the court, .and judgment for the defendants. Plaintiffs appeal.

— Hon. T. M. Giberson, Judge. The plaintiffs, being indebted to tbe defendant, gave him an order on the Cedar Bapids Commercial Club, which accepted it, i and paid thereon all save a balance of one hundred and sixty-two dollars and twenty-five cents. Suit was begun against said club and plaintiffs at the April term, 1896, and judgment entered for this amount May 6th of the same year.

- — -Hon. J. I’. Clyde, Judge. Plaintiff, a judgment creditor of tbe -Central Iowa, Railway Company, brings tbis action for decree declaring said judgment to be a lien as against tbe defendant upon tbe track, right of way, depot grounds, buildings, and appurtenances of said railway in tbe county of Cerro Gordo. Tbe issues will appear in tbe opinion. Judgment was rendered dismissing plaintiff’s petition, and be appeals.—

— Hon. George W. Wakefield, Judge. Action at law to recover damages for injuries sustained by plaintiff in operating a frieght elevator in a building belonging to defendant. The trial court sustained a demurrer to the petition, and plaintiff appeals.'

Appeal' from Kossuth District Gourt. — IIon. Lot Thomas, Judge. Pdaintier is an assignee for tbe benefit of creditors under a deed of general assignment executed by one L. Carmichael, and his cause of action grows out of the following facts: The Tama Furniture Company, whose business is indicated by its name, was organized with a capital of $10,000, divided into shares of $100 each.

<p>Mulct Law: violation: Single door. Where liquors are sold at wholesale and retail in a single room in the same building, and the liquors sold at wholesale were delivered from a cellar., through an outside cellar door, instead of from the room above, where the retail business is carried on, and which is connected with the cellar by a door in the floor, leading to a flight of stairs running to the cellar, where all the liquors are stored, and but one tax on the business is paid, it constitutes a violation of the mulct law (Code, section 2448), providing that the selling or keeping for sale must be carried on in a single room, having but one entrance or exit, and that opening on a public business street..</p>

— Hon. Hice H. Bell, Judge. Action at law on a fire insurance policy. A jury was impaneled, and beard tbe evidence. On motion of tbe ■defendant tbe case was then taken from tbe jury and dismissed. Tbe plaintiff appeals.

— How. Ben McCoy, J iidge. The record title to the one hundred and twenty acres of land in controversy was in the name of Asa S. Chew at the time of his death, in 1891. The plaintiff is his widow, and the defendants his six children, five of whom join in the prayer for partition.

■ — Hon. William Hutchinson and Geo. W. Wakeeield, Judges. Plaintiee commenced this action in equity May 7, 1896, to quiet in him the title to a certain quarter section of land in Lyon county.

— How. J. C. Sherwin, Judge. The plaintiffs pray that a certain sewer tax levied by the defendant city upon certain properties of the plaintiffs be decreed to be unlawful and void, and that the defendant county treasurer be perpetually enjoined from attempting to collect the same. The defendants Ford and De La Hunt made default, and the other defendants answered as will hereafter appear.

<p>Appeal from Kossuth District Court. — Hon. R. H. Helsell, Judge.</p> <p>Action for damages occasioned by a fire alleged to have been set out and negligently permitted to escape by defendant’s employes when burning weeds and grass along its right of way. Verdict and judgment for the plaintiff, and the defendant appeals.-</p>

<p>Appeal from, Linn District Court. — Hon. William Gr. Thompson, Jiidge.</p> <p>The petition filed by plaintiff on the twenty-fourth day of December, 1891, was aided by attachment, and recites that the Peters-Miller Shoe Company was, in the year 1891, a mercantile corporation duly organized and existing under the laws of the state of Missouri; that after the acts com plained of the Peters Shoe Company was incorporated in said state, and succeeded to the rights and business and assumed the liabilities of the first-named company. It is further charged that in March, 1891, the Peters-Miller Shoe Company brought suit by attachment against one Casebeer in the circuit court of Wayne county, Mo., and in said action levied upon and caused to be sold a large quantity of merchandise belonging to plaintiff; that plaintiff intervened in said cause, setting up his title to the property so taken; that on a trial in the circuit court verdict and judgment were rendered against plaintiff, but on appeal this judgment was reversed, and the case remanded, and on a second trial judgment was entered establishing plaintiff’s ownership of said property; that the date of final judgment was November 1, 1896. There was a second count in the petition, but, so far as the questions we have to consider are concerned, it is needless to set it out. It but repeats in a different form the facts already stated, - and alleges that the plaintiff in attachment charged that plaintiff here was a partner with Case-beer. .The answer puts in issue the material allegations of the petition, and sets up the statute of limitations. On motion of plaintiff, at the close of the testimony the court instructed the jury to find for him in the sum of one thousand four hundred and forty-one dollars. This was done, and from the judgment rendered thereon this appeal is taken. — ■</p>

<p>Appeal from Cedar District Court.- — Hon. H. M. Bemley, Judge.</p> <p>Plaintiee asks to recover damages by reason of certain alleged acts of negligence' on the part of the defendant which it is averred caused the death of plaintiff’s intestate, without fault or negligence on his part contributing thereto. The defendant answered, denying that it was negligent as alleged, and denying that deceased was free from negligence. At the conclusion of the evidence for the plaintiff, defendant moved for a verdict, which motion was sustained, and verdict. and Judgment for defendant rendered accordingly. Plaintiff appeals.</p>

— Hon. J. H. Apple-gate, Judge. Action in equity to foreclose a mortgage executed by M. A. Selby and Emma A. Selby. There was a decree of foreclosure for the plaintiff. Defendants M. A. and Emma A. Selby appeal.

- — Mon. II. M. Remley, Judge. This is au action iu equity to probate a destroyed will. There was a trial to the court, and the will was admitted to probate. The defendants appeal.

— Hon. T. F. Stevenson,. Judge: Plaintiffs were members of tbe regular panel of petit jurors duly summoned to appear at the April term, 1895, of' the district court of Polk county. They appeared and served, and during the term were excused by the court for a. period of fifteen days. On their final discharge the clerk refused to give them a certificate of service during the fifteen days, and this action is for a writ of mandamus to compel him so to do.

— Hon. Rige H. Bell,. Judge. On January 8, 1898, judgment was entered in the justice court of William Wilson, Esq., against Smith Bros., George W. and B. E. Smith, for the sum of $99 and costs. Three days later they filed an appeal bond in an adequate amount signed by “Smith Bros., Principal ; John E. Craig, Surety; G. W. Smith, Surety,” — which was approved.

<p>Appeal from Lyon District Gourt. — Hon. George W. Wakeeield, Judge.</p> <p>Action at law for the conversion of certain property-on which plaintiff claims to hold a chattel mortgage. Defendants pleaded that they purchased the property without notice of plaintiff’s mortgage, and also pleaded an estoppel, and payment of the mortgage indebtedness. There was a trial to a jury resulting in a verdict and judgment for plaintiff. Defendants appeal.</p>

— Hon. C. P. Holmes, Judge. Plaintiee, Louisa Boehler, began this action against the defendant to recover damages for trespass committed on certain real estate, and to enjoin further like acts. J. S. Harber and others intervened, claiming title to the property in question,- and praying that it be quieted against plaintiff and defendant. The city, in its answer, also claims title to the property, and by cross bill seeks to have same quieted.

— Hon. M. J. Wade, Judge. The demurrer of defendant James Stratton to plaintiff’s petition and amendment was overruled, and said defendant electing to stand on his demurrer, judgment was rendered against him, from which he appeals.

— IIon. William Hutchinson, Judge. Action in equity for two- hundred and ten dollars and seventy-nine cents on account of whisky sold in 1897, and to subject certain notes deposited as collateral security to-the payment thereof. The answer averred these sales to-have been made in Iowa, and in contravention of its laws; and in a counterclaim filed the defendant asked judgment, for four hundred and ten dollars and sixty-three cents previously paid plaintiff for whisky.

— Hon. G. W. Wake-field, Judge. Action in equity to foreclose a mechanic’s lien for a' well. Decree for the plaintiff. The defendants Bawson and St. John, guardian, appeal.

<p>Appeal from Hamilton DistHct Court. — Hon. B. P. Birdsahl, Judge.</p> <p>Plaintiff is tbe owner of a tract , of real estate in defendant city wbicb abuts, one side upon division street, and another side on Funk street. On this property is a house, barn, and other improvements, in the way of shrubbery. There were trees, also-, in front of the property, on both streets, just outside the sidewalk line. No grade had been established on either of these streets. In the fall of 1897 the defendant city — as claimed, without any ordinance, resolution, or vote authorizing it so to do — cut down and excavated both of said streets along the line of plaintiff’s property to such a.depth as to make a retaining wall necessary, making access to said property difficult, and destroying said trees. Damages in the sum of fifteen hundred dollars are asked. The defense was a general denial. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. O. P. Holmes, J udge. The receiver of the plaintiff bank asks judgment on a promissory note for three hundred and fifty-one dollars and forty-five cents, dated September 26, 1893, due ninety days after date, executed by the defendant company to the plaintiff bank, and indorsed by defendant Field and five others, guaranteeing payment at maturity.

— Hon. Lot Thomas, Judge. Action at law to recover damages for an alleged conspiracy to defraud. There was a trial to a jury, resulting in a verdict for plaintiff. Defendant Hughes appeals.—

- — Hon. Z. A. Church and Hon. S. M. Elwood, Judges. 1 These two appeals are in the .same case. They are submitted together, and may be disposed of in one opinion. The firm of Salinger & Brigham was indebted to plaintiff in a considerable amount, which was evidenced by their promissory notes. This action, so far as the issues here are concerned, was to recover of H. O. McAlister on his agreement to become surety on said notes.

— -Hon. W. R. Green, Judge. Action at law to recover the purchase price of a certain amount of nursery stock sold the defendant. Defendant denied that the goods purchased were ever tendered, and pleaded fraud in the making of the contracts. The case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

— Hon. L. E. . Fellows, Judge. Application in equity for an injunction against a liquor nuisance in the city of Decorah. The petition was dismissed at plaintiff’s cost, and from this judgment he appeals.

F. K. Qaynor, Judge. Lucie W. Hitt brought an action against the defendant company to foreclose a mortgage executed to her by said company on certain real estate. L. W. Meyers, assignee of the company for the benefit of creditors, was also made a party defendant, and filed an answer in his own behalf. March 4, 1897, a judgment, and decree .of foreclosure by default in that action were rendered against the SterlingGoold Manufacturing.

— Hon. C. A. Bishop, Judge. Action in equity upon a promissory note, asking tbe establishment of a vendor’s lien for the purchase price of real estate. There was a decree for the plaintiff, and the defendant appeals.

— Hon. W. N.-Treichler, Judge. Action in equity to quiet title to' a strip of land. The defendant pleaded that it had been dedicated by the owner as a public street, and accepted by the city as such. Decree was entered as prayed, and defendant appeals.

— Hon. J. H. Apple-gate, Judge. Plaintiees, the beneficiaries in a certificate of life insurance issued by the Iowa Hasons’ Benevolent Society to Aaron D. Wethe-rell, now deceased, bring this action thereon and upon a contract between skid society and the defendant whereby certain- property and the membership of the society were transferred to the defendant.

— -IIon. W. R. G-eeen, Judge. Suit in equity to enjoin the sale of certain lands under execution in favor of one Bomboy. From a decree for plaintiff, defendants appeal.

— -Hon. Frederick O’Donnell and Hon. James L. Husted, Judges. Action to recover damages for'personal injury caused by a defective sidewalk. There were two jury trials. The first resulted in a verdict for the defendant, which was set aside, and a new trial ordered. The second jury found for the plaintiff. Judgment was rendered on the verdict. The defendant appeals from the final judgment.

— Hon. W. H. Green, Judge. Plaintiee brings this action to recover damages for an alleged wrongful, wicked, malicious, unlawful, reckless, and careless publication in the Nonpareil (a daily newspaper) of the following concerning her, which, she charges, is false and defamatory: “Chargéd with Seduction.

— Hon. D. Kyan, Judge. The defendant'was accused and convicted of peddling-in the county, outside of a city or incorporated town, without a license from the auditor, and appeals.

<p>Appeal from Osceola District Court. — Iíon. F. K,. Gaynor, Judge.</p> <p>Action oil three promissory notes made and executed to plaintiff by defendants Krogman. Defendants admit the making of the notes, but plead an offset and counterclaim growing out of the sale of certain property under a mortgage given to secure the notes. There was a trial to a jury, resulting in'a verdict and judgment for defendants and plaintiff appeals.</p>

<p>Divorced Woman: homestead rights. A woman without children, to whom, on the granting of a divorce to her, the homestead ' of herself and divorced husband was deeded, pursuant to an- , agreement of the parties that if the decree was granted she - should have the property for alimony, has not, though occupying it, any homestead rights therein, prior to her subsequent marriage; Code 1873, section 1989, providing that a widow or widower, though without children, shall be deemed a family while continuing to occupy the house used as a homestead at the time of the death of the husband or wife.</p>

<p>Appeal from Greene District Gourt. — Hon. S. M. Elwood, Judge.</p> <p>Action at law on a promissory note. Defendant McLain denied his signature appended to the instrument. In an amendment to the petition, plaintiffs pleaded ratification and adoption of the signature, and, this, defendant denied. There was a trial to a jury, resulting in a verdict and judgment for defendants, and plaintiffs appeal.</p>

<p>Railroads: negligence: Jury question. The mere fact that a little dust and grease appeared on the top of the steam chest of an engine after a run of thirty miles, causing defendant’s brakeman’s foot to slip, was not sufficient evidence of negligence to warrant the submission to a jury of defendant’s liability for injuries sustained by the brakeman.</p>

— Hon. H. M. Towner, Judge. Appeal from au order dismissing the application of Mary M. Harper, the foreign guardian of J. M. Holcomb, asking for the transfer of funds belonging to him.

'Appeal from Page District Court. — Hon. A. B. Thornell, Judge. Action at law to recover damages for injuries received by plaintiff while driving along one of the streets in defendant city. The defendant demurred to the petition, and its demurrer being overruled, it filed an answer denying the allegations of the petition. The case.was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. George W. Wakefield, Judge. Plaintiff's petition is in three counts: The first, to recover ninety dollars and thirty-five cents balance for goods sold and delivered; the second, to recover a balance of ten dollars on a contract for putting in waterworks, and six dollars for repairing the same; and the third, to recover one hundred and thirty dollars for a corn harvester sold and delivered.

— Hon. J. L. Husted, Judge. Action at law upon promissory notes. Trial to a jury, and verdict and judgment for defendant. Plaintiff appeals.

- — -JIon. W. R. Green, Judge. Action at law on two promissory notes. Defendants pleaded payment and certain other defenses and counterclaims that will be referred to in the body of the opinion. The case was tried to the court, resulting in a judgment for plaintiff. Defendants appeal.

<p>1 Contributory Negligence: jury question: Railroads. Plaintiff, in approaching a railroad crossing, stopped his team, and looked and listened, when one hundred feet from - the track. He then sat down with his back to the north, and drove slowly down a descent to the track. There was an embankment which obstructed his view of the track till within twenty feet of it. His attention was largely taken up with* the bad condition of the road, and he did not notice a train coming from the north, till the team was going on the rails, and he was struck and injured. Held, not sufficient to show contributory negligence as a matter of law.</p> <p>2 Evidence: Negative statements. Evidence of witnesses who were near a train at '.the time of an accident at a crossing, that they heard neither the whistle or bell till the train passed the crossing, is not merely negative. -</p> <p>3 Misconduct in argument. Where plaintiff’s attorney in .an action against' a railroad, in which its employes were witnesses, stated in argument that if the employes of a railroad company did not testify as the company desired they would be discharged, but such language was held improper, and was withdrawn, the argument did not constitute prejudicial error.</p>

<p>Appeal from Johnson District Court. — Hon. M. J. Wade, J ndge.</p> <p>Action upon written orders for the price of certain farm machinery sold by plaintiffs .to defendants. The defense was a breach of warranty, together with rescission of the contract. Trial to jury. Verdict and judgment for defendants. Plaintiffs appeal.</p>

- — -Hon. Frank R. Gay-nor, Judge. Defendant's demurrer to the plaintiff’s petition was sustained,- and, plaintiff electing to stand on his petition, judgment was rendered against him, from which he appeals.

- — IIon. T. M. Fee, ' Judge. Action to recover damages for property destroyed by fire, which, it is claimed, was negligently set out by an engine on defendant’s road. There was a jury trial, and verdict for plaintiff. From a judgment rendered thereon, defendant appeals.

— Hon. S. 31. Elwood, Judge. The defendants W. 31. Harrison and Isabella A. Harrison are husband and wife. The latter was the owner of eighty acres of land in Carroll county, Iowa, which for a number of years was occupied by herself and her husband. January 31, 1896, they conveyed this land by warranty deed to one Kirie L. Williams. On the first day of August 1896, Williams conveyed the same land by quitclaim deed to George W. Bowen.

— Hon. William Gr. Thompson, Judge. Proceedings for the construction of the will of Phillip Barrett, deceased. The trial court held that Eleanor S. Barrett, widow, took but a life estate, and she appeals.

— Hon. N. W. Macy, Judge. Action to recover damages for a personal injury. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.-

— Hon. O. P. Hoimes, Judge. Action to recover damages for injuries resulting from tbe bite of a dog. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. George W. Wakeeield, Judge. Action to recover usury, under section 5198 of the ^Revised Statutes of the Hnited States. A demurrer to the petition was sustained. Plaintiff appeals.

— Hon. William Gr. Thompson, Judge. Appellant filed in th© court below a petition for an order on the executrix to turn over to him certain property of the estate, consisting of a stock of drugs, paints, wall paper, etc. Defendant holds said property under the will of her deceased husband, J. V. Myers, as a part of his estate. Plaintiff claims! a co-partnership with J. V. Myers, and seeks to obtain possession as surviving partner.

'Appeal from Polk District Gowrt. — Hon. T. F. Stevenson, Judge. Action o<n a judgment rendered in the circuit court of Milwaukee county, Wis. From judgment as prayed the defendant appeals.

— Hon. T. F. Stevenson, Judge. Action to recover commission for negotiating tbe sale of property for defendant. At the close of plaintiffs ease, on motion of defendant tbe court instructed tbe jury to find a verdict in tbe latter’s favor, which was done. From a judgment rendered thereon, plaintiff appeals.

— Hon. H. M. Remley, Judge. This is an action in replevin. It was tried without a jury, and comes here on a certificate of the trial judge. The facts will be found in the opinion. From a judgment in favor of defendants, plaintiff appeals.-

— Hon. S. M. Elwood, Judge. On the tenth day of August, 1893, John H. De Wolf and the Citizens’ Bank of Vail made a general assignment for the benefit of their creditors to defendant. On the seventeenth day of that month the assignee first published notice as required by law.

- — -Hon. M. I. Wade, Judge. Action in equity by a citizen and taxpayer of the town of Lone Tree against the mayor and members of the town council to restrain the issuance of bonds voted for the purpose of raising money to construct a system of waterworks in said town, on the ground that the voters had not legally authorized the construction of said works. On a hearing, the injunction was granted as prayed. Defendants appeal.—

- — -Hon. George W. Wakeeield, Judge. Action by landlord’s attachment to recover rent due under a written lease. M. A. Walker intervened, claiming a lien superior to that of plaintiff under a chattel mortgage. A jury was waived, and trial had to the court. From a judgment in plaintiff’s favor, W. Walker and intervener appeal.-

Appeal fpom Jefferson 'District Court. — Mon. M. A. Roberts, Judge. 1 The plaintiff’s petition, as originally filed, is as follows: “Tour petitioner, Isabelle McClintic, claims of the defendant, Joto F. McClintic, the sum of forty-seven hundred dollars, as justly due her on account, a copy of which is hereto attached and made a part of this petition. Said account has bean running continuously, and is due and unpaid, and entitled to no credits or offsets, and is her property.

— Hon. M. A. Roberts, Judge. . • The defendant was convicted of the crime of manslaughter. After final judgment, and after an appeal had been perfected therefrom, he made application to have the evidence in the case transcribed at the expense of the county, which was denied, and he appeals from that order.

— Hon. E. E. Ayleswobth, Judge. Plaintiee, as assignee of the claims of a number of taxpayers, seeks to recover the amounts paid by them to aid in the construction of a bridge over the Missouri river between Council Bluffs, Iowa, and Omaha, Neb. He had judgment in the trial court, and defendants bring the case here on appeal.

— Hon. William Gr. Thompson, Judge. 1 Plaintiee brings this action in equity against the defendant, formerly her guardian, to set aside an order in probate approving the final report of said guardian, and discharging her, and for an accounting and judgment in the sum of one fhousand eight hundred dollars.

— Hon. D. P. Hindman, Judge. The plaintiff began suit on thirty-three notes executed by the defendant, amounting in the aggregate to one thousand three hundred and eleven dollars and thirty-thnee cents, on the fifth day of February, 1897. The defendant, A. C. Daniels, is a nonresident. On the.same day a -writ of attachment was levied on lot 4, blocli 10, in Collins, as his property. Due service was had by publication.

— Hon, T. M. Fee, J udge. Action at law upon a note. Defense, want of consideration and fraud. There was a directed verdict for the' plaintiff and judgment thereon. Defendants appeal.—

— Hon. David Ryan, Judge. Action to set aside and enjoin the collection of a judgment. There was a decree for the defendants. Plaintiff appeals.

<p>Defective Sidewalks: knowledge of defect as matter of law. Where a traveler had no knowledge of a particular defect in a sidewalk, and could not have discovered it by simply glancing at its surface, such knowledge cannot be inferred as a matter of law.</p>

- — Hon. Obed Cast well, Judge. Action to enjoin a liquor nuisance. Decree was entered as prayed against all Of the defendants except H. E. J. Boardman. As to him the petition was dismissed. E. H. Gifford and the state appeal, that of Gifford being first perfected.

<p>Appeal from Polk District Gourt, — Hon. C. P. Holmes, Judge.</p> <p>Action begun November 19, 1897, to recover the sum of nine hundred and seventy-four dollars and fifty-eight cents due on note and account, aided by attachment. Service of notice of the garnishment on the Covenant Mutual Life Association of Galesburg, 111., was accepted by the auditor of state, November 23, 1897. The defendant’s an-SAver put plaintiffs to their proof, and in a counterclaim damages were sought for the wrongful suing out of a writ of attachment. September 22, 1898, the defendant moved to quash the garnishment proceedings and discharge the Covenant Mutual Life Association as garnishee. This was resisted by plaintiffs, but the motion Avas sustained, and this appeal involves the correctness of that ruling.</p>

— Hon. A. B. Thornell, Judge. The plaintiff is the owner of the E. -J of N. W. ¿ and the W. \ of N. E. \ of section 21, township 72, range 42, Mills county; and the defendant, of the N. E. \ of N. E. ¿ of said section. In July, 1897, the defendant removed one hundred and eighty feet of the fence on the north end of the boundary, recognized since 1860, from sixteen to twenty feet to tbe west, and took possession of tbe intervening strip.

— Hon. F. H. Hedsedd, Judge. Action for the conversion of certain personal property. A jury was waived, and the case was tried to the court, resulting in a judgment for plaintiff. What is denominated a “notice of appeal” was served within the time required by statute for taking appeals, but, as this notice is challenged, our attention will be directed to the sufficiency thereof.—

— Hon. C. P. Holmes, •Judge. Action at law to recover of defendant the amount of a judgment held ,by. plaintiff against a corporation known as the Hess Electric Storage-Battery Company. The case was tried to the court on an agreed statement of facts, resulting in a judgment for defendant. Plaintiff appeals.

— Hon. A. E. Dewey, Judge. 1 The plaintiff, in ber petition, alleges that on tbe sixth day of January, 1886, tbe defendant entered into a written contract to convey ber certain real premises in consideration of ber assignment to bim of a claim of some thirteen thousand dollars against one John Lyle.

<p>2 Keeping House of III Fame: The keeping of a covered wagon, drawn from place to place and used as a place of abode for human beings for the purpose of prostitution, is within the statute prohibiting the keeping of a house of ill-fame.</p> <p>1 Corroboration of Accomplice: Evidence of an accomplice of a defendant charged with keeping a house of ill fame, which con-sisted in the use of a covered wagon, in which prostitution was carried on, is sufficiently corroborated by defendant’s apparent control of the wagon and team, supported by his admissions. •</p>

<p>Appeal from Jasper District Gourt. — Hon. John T. Scott, Judge.</p> <p>Indictment for seduction. Verdict and judgment of guilty, and defendant appeals.</p>

<p>Appeal from Scott District Court. — Hon. A. J. House, Judge.</p> <p>The plaintiffs entered into a contract April 15, 1892, with N. Ferjervary, by the terms of which they agreed to construct a certain building before October 15th of that year. They failed to complete it until some time in February, 1893, when the owner* withheld from the contract price the sum of six hundred and sixty dollars as liquidated damages, for which recovery is sought in this action. Verdict and judgment for the defendant, and the plaintiffs appeal.</p>

<p>Appeal from Polk District Court. — -Hon. C. A. Bishop, Judge.</p> <p>Dependant was duly charged with, and convicted of, the crime of arson, and from such judgment appeals.</p>

<p>2 Insanity: just question. Where, on a prosecution for murder, the defense was insanity, the question of accused’s insanity was for the jury.</p> <p>1 Qualification of Jurors: That a juror, on a prosecution for murder, where the defense was insanity, had heard the details of the crime, and had the scene of the same pointed out to him, would not disqualify him, where it did not appear that he had heard anything as to the sanity or insanity of the accused, or expressed any opinion as to his guilt or innocence.</p>

<p>Appeal from Dubuque District Court. — IIon. J. L. Husted, J udge.</p> <p>Indictment for murder in the first degree. From a judgment entered on a verdict of guilty of murder in the second degree,.defendant appeals.</p>

<p>Appeal from Warren District Court. — -Hon. J. D. Gamble, Judge.</p> <p>The defendant was convicted of the crime of perjury, and appeals.</p>

<p>2 Scales: when fixtures. Wagon scales to weigh grain, placed on a foundation wall of stone and mortar, on which the platform hung, and from underneath which rods extended under a build-ing used as an office, and up through the floor to the beam from which the weight was ascertained, became a fixture.</p> <p>1 Conditional sale: Vendor's lien. Where the vendor sold wagon scales to the defendant, on condition that title should not pass until the price was paid, but, before receiving his money, allowed them to be set up for use on defendant’s lot, and the lot was sold at sheriff's sale on a judgment against defendant, the purchaser at such sale, who had no notice of the vendor’s lien until after he had taken possession under the sheriff’s deed, was entitled to the scales, as against the vendor.</p>

<p>Appeal from Floyd District Court. — Hon. J. C. Sherwin, Judge.</p> <p>The original suit was for a partnership accounting between plaintiff and defendant, Rhynders. A receiver was appointed, who sold certain property alleged to belong to the firm. The Charles City National Bank intervened, claiming that it held a lien on the property sold by the receiver, and asking that the money received be turned over to it. The case was tried to the court, resulting in a decree and judgment for plaintiff, and an order dismissing the interveners petition. Intervener appeals.</p>

<p>1 Contract of parntership: Held superseded by oral contract. Plaintiff furnished defendant funds to purchase a quartz mill to be used in Arizona, and, in consideration, took an interest in mining claims, with the agreement that if the venture should prove a failure or plaintiff desired to withdraw, defendant should be responsible for the money paid on the mill, less any sums received by plaintiff as profits in the business. Plaintiff ■ went to the mine in Arizona, paid off the workmen, and furnished considerable money in addition to that furnished under the contract. A bill of sale was given to a son of the plaintiff, without consideration, and he took charge. The venture was a failure. Held, in an action to recover on the contract, that the evidence was sufficient to support a finding that the written contract had been superseded by an oral contract of copartnersip, and hence plaintiff was not entitled to recover.</p> <p>2 Transfer to law side: After amendment tendering equitable issue. "Where plaintiff’s petition, alleging a copartnership between himself and defendant, and asking for an accounting, was amended so as to recover under a written contract, it was . not error to refuse plaintiff’s motion to transfer the entire case to the law side of the court, after defendant had filed an equitable answer in effect asking for an accounting and that another party be brought in, as under defendant’s answer an equitable issue was tendered, which could not be tried by a jury.</p>

— -Hon. Fred O’Donnell, Judge. This is a controversy over certain funds in the hands of one F. W. Altman, as administrator. Intervener, Biehl, filed a petition in which he claimed to be entitled thereto under an assignment from Martha Biehl, nee Gruner. Plaintiff, who garnished Altman, claims that the alleged assignment was without consideration, and is fraudulent and void.

— Hon. W. B. Quarton, Judge. Plaintiff, a judgment creditor of F.- J. Parr, whom he alleges to be insolvent,. brings this action in equity to set aside a deed executed by said F. J. Parr and his wife, Charlotte A. Parr, to the defendant Nathan J. Parr, conveying a certain section of land in Buena Vista county, and to subject said land to the payment of his judgment.

— Hon. Walter I. Smith, Judge. Action to recover one hundred and twenty-five dollars, with interest, balance, alleged to be due from the defendant on written contract. An attachment was issued, and under it two hundred and fifty dollars in money was seized as the property of the defendant. The defendant was not served, and no appearance made on its behalf. Intervener filed his petition, claiming to be the absolute owner of said money.

— Hon. John F. Oliver, Judge. Action in equity to foreclose a mortgage upon real estate. There was a decree for the plaintiff, from which defendant W. D. Turner appeals.

— Hon. D. R. .Hindman, Judge. Action to recover rent, aided by a landlord’s attachment, which was levied upon certain live stock and farm implements kept and used on the leased premises. Cynthia M. Bowers intervenes, and claims the attached property by virtue of a chattel mortgage. The case was transferred to, and heard as in equity, and a decree rendered giving plaintiff’s lien priority over the mortgage of intervener. Intervener appeals.

— Hon. Frank R. Gaynor, Judge. Action for judgment on one promissory note for three thousand four hundred dollars executed by defendant George H. Benedict to the plaintiff, and for a decree foreclosing a mortgage on real estate executed by said Benedict and wife to secure the payment of said note. C. D. Stevens was made a defendant, but is not a necessary party to this appeal. The contentions to be considered are between the plaintiff and George H. Benedict.

— Hon. W. R. Green, Judge. Application to set aside the satisfaction of a judgment against the defendant. The application was granted. Both parties appeal.

— Hon. T. M. Fee, Judge. Action to set aside conveyances of land on account of fraud and mental incapacity of the grantor. Decree for defendants. Plaintiffs appeal.

<p>Appeal from, Bremer District Court. — Hon. J. F. Clyde. Judge.</p> <p>.Action in partition. The petition was dismissed, and the plaintiffs appeal.</p>

-^-Hcm. F. W. Eiciielberger, Judge. Action to recover of the defendant a loss by fire claimed to have been set by its engine. Verdict and judgment for the plaintiff. Defendant appeals.