Volume 112 — Iowa Reports

— Hon. W. R. Green, Judge. November 25, 1899, this action was commenced to oust the defendant from the office of justice of the peace in and for the township' of Neola, in Pottawattamie county, Iowa, and to establish Riley Clark therein. Judgment was rendered dismissing the petition, and plaintiff appeals.

— Hon. William G. Thompson, Judge. Defendant Zimmerman pleaded guilty to the crime of keeping a gambling house, and was ordered to pay a fine of $200. He had given bond to appear, and was present when judgment was pronounced. Defendant Houser was surety on his recognizance, and claims he was released in virtue of the action of the court and of the sheriff.

<p>1 Seduction; false and deceptive promises essential. In a prosecution for seduction it is vital for the state to prove the circumstances under which prosecutrix yielded, and that the promises relied on were false and deceptive. Hence, it was prejudicial error to charge that even though the defendant had sexual intercourse with the prosecutrix, and she was. at the time of previous chaste character, yet, unless she yielded her person by reason of some art, promise, or deception practiced on her, there can he no conviction, hut the character of such arts and deception are not so important as the effect they may have had on her mind, nor is the manner in which her ruin, was accomplished important and that if the arts, promises, and deceptions practiced on her, under all circumstances, considering her age, habits of life, and experience, were such as to induce her to surrender herself to the defendant, then the evidence on this point was sufficient.</p> <p>2 Corroboration: Birth of child. In a prosecution for seduction, an instruction that evidence that the prosecutrix gave birth to a child was corroborative of her testimony was erroneous, since it in no way connected the defendant with the commission of the crime.</p>

— IIon. C. II. Iaet.ly, J udge. The petition was filed October 19, 1895, alleging that, on April 12, 1881, Isaac Mereness .deposited with defendant $1,000.00, for which it issued a demand certificate of' deposit,' since lost; that said Mereness died October 10, 1888, and plaintiff was appointed administrator of his. estate in May, 1889; that plaintiff demanded of defendant the money due on said certificate in June, 1889, whereupon he was falsely informed by defendant’s…

— ITon. James D. Gambee, Judge. Dependant was indicted, tried, aud convicted of tbe ea-ime of obtaining tbe signature to an instrument by false and fraudulent representations, and from tbe sentence imposed appeals.

— Hon. W. B. Quaeton, Judge. A county road runs across .the land of defendant. Its boundaries are in dispute, and this proceeding is to secure the appointment of a commissioner to survey and establish the lines. There was a demurrer to the petition, upon the ground, among others, that plaintiff has no right to maintain the action. The demurrer was sustained on the ground just stated, and, plaintiff electing to stand on its petition, judgment was entered against it for costs.

— Hon. G-. W. Burn-ham, Judge. Action to cancel a note executed' to John B. Reeve, in so far as it purports to bind plaintiffs as sureties. Decree as prayed, and defendant appeals.

— Hon. W. E. Green, Judge. The defendant was indicted for the crime of uttering-a forged check.

— IIon. James D. Gamble, Judge. 1' Suit in equity to compel defendant, who was the guardian of plaintiff and of plaintiff’s assignor, Lencko Van Eees, to account. Lena Van Eees, another of the wards, had filed objections in probate to the guardian’s reports. The case made by these objections was com solidated with the accounting suit, and the whole tried to the court, resulting, in a judgment and decree for plaintiff in the sum of $194.50 and costs. Defendant appeals.

— IIon. A. B. Tiiornell, Judge. On the twenty-third day of October, 1897, the plaintiff commenced this action upon a contract entered into between him and the defendant on the twenty-seventh day of July, 1897, whereby the plaintiff agreed to furnish and attach in good, workmanlike manner, upon the boiler furnace used in the high school building in the defendant district, “Smith’s ventilator and heat retainer,” for the consideration of $225 in which contract he guarantied…

— Hon. Rige H. Bell, Judge. The petition was filed December 20, 1898, and a writ of attachment issued by the clerk of the superior court, directed to “any constable in Lee county,” and delivered to Ilenry Croniele, a constable of Des Moines township, in that county, who, in virtue thereof, seized certain property of the defendant.

— Hon. James W. Bollinger, Judge. Action on a benefit certificate of insurance in the defendant association. Each party filed a motion for judgment on the pleadings. Plaintiff’s motion was sustained, and defendant appeals.

<p>1; 4 Master and Servant: risk op employment: Negligence and con- ■ .tributary negligence.' A servant was injured in tbe master’s simp, by stepping into a barrel of hot water sunk into the ground so that the top was flush with the surface. The servant contended that the accident was caused by the action of a vicious dog kept by the master. Held, that an instruction authorizing the, recovery by the servant, on a finding that the action of the dog was not a risk assumed by the servant, and that such action caused the accident, was erroneous, for omitting consideration of the master’s negligence in placing and maintaining the barrel, and the servant’s freedom from negligence. It was, in effect, the direction of a verdict for plaintiff if the jury found that the acts of the dog was not a risk assumed and that such acts caused the injury suffered by plaintiff.</p> <p>2 Instructions: paragraphing. Where instructions, as a whole, defined the issues; the fact that such issues are not grouped and stated in separate paragraphs is not error.</p> <p>3 Request- Equivalents. Where the question of assumption of a risk of employment by a servant is covered by the- instructions as given, the refusal to give requested instructions thereon is not error. ■ ■ ■ -</p>

— Hon. Kick- II. Bell, Judge. Action to recover damages for personal injuries. When the testimony was all in, on motion of defendant, a verdict was directed in its favor. From a judgment thereon, taxing costs to plaintiff, he appeals.

— Hon. A. S. Beam, Judge. 1 Suit in equity to foreclose a mortgage. S. L. Moore, a •mortgagee of tlie property, was. made a party defendant, .and, although it is conceded that his mortgage was first recorded, it is claimed that he is not a bona fide purchaser and that he had notice and knowledge of plaintiff’s mortgage.

— Hon. William G. Thompson, Judge.. Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in not keeping one of its sidewalks in repair. The defendant answered, admitting its corporate capacity, and that it constructed said walk, and denying every other allegation in the petition. Verdict and judgment were rendered for the plaintiff for $1,500. Both parties appeal.

— IIon. A. S. Blair, Judge. Action upon a promissory noto executed by tlie defendant. Defense, fraud and want of consideration. Trial to a jury, and verdict and judgment for tbe defendant. Plaintiff appeals.

<p>Appeal from Louisa District Court. — Hon. W. S. Witiirow, Judge.</p> <p>Action on an insurance policy. Verdict and judgment for tbe plaintiff, and the defendant appeals.</p>

— Hon. L. E. Eel-lows, Judge. Action iu equity to enforce the specific performance of a contract. A demurrer to the petition was sustained. Plaintiff appeals.

- — How. S. M. Enwoon, Judge. Plaintiff, claiming to be tbe'absolute owner of certain lé bead of cattle, brings tbis action to recover tbe possession thereof, or tbeir value, alleged to be $310, from tbo defendant, and damages for tbe wrongful detention of said cattle.

— Hon. Henry Bank, Jr., Judge. Action at law to recover attorney’s fees. Trial to a jury. Verdict and judgment for the plaintiff, and defendant appeals.

— Hon. S. M. Weaver, Judge. Application by J. W. Casteel for an order on tbe administrator of tbe estate of Janies Casteel to turn over certain shares’of stock in a building and loan association. The-trial court denied tlio application, and J. W. Casteel appeals.

<p>Taxation: t cattle — non-besident owner. Code 1873, section 812, provides that all personal property shall he taxed in the name of the owner on the first day of January, section 801 declares that cattle are subject to taxation, and section 817 requires personal property in the hands of an agent to be listed by the assessor. Held, that cattle brought into the state in December-for feeding purposes, and kept there till the April following, are taxable within the state, though owned by a non-resident.</p>

<p>Appeal from Harrison District Court. — Hon. Frank R. Gaynor, Judge.</p> <p>Action to quiet title to land. Tlie plaintiff appealrfrom a decree dismissing his petition.</p>

• Suit was brought against the Chicago & Northwestern Kailway Company before a justice of the peace for the recovery of $15, the alleged value of a horse it was claimed the company had killed. The company filed a counterclaim, in which it claimed $30 for removing the carcass of the dead horse from the right of way.

— IIon. J. E. Clyde, Judge. The assessor of tbe incorporated town of Parkersburg assessed plaintiff bank for the purpose of taxation in the sum of $3,342. The board of review raised this assessment to the amount of $15,000. The bank appealed to the district coiirt, asking that the amount be reduced to $5,151.30. This was refused, and from the order confirming the action of the board of review this appeal is taken.

— IIon. Lot Tiiomas, J uclge. Suit in equity to restrain the collection of taxes assessed against certain property belonging to the Night Eminent Grand Commandery of the Knights Templar of Iowa. Plaintiffs, as trustees of the organization, allege that the property is exempt from taxation because used for charitable, benevolent, and religious purposes, and devoted to the appropriate objects of the institution. The trial court denied the relief asked, and plaintiffs appeal.

— Hon. Obed Caswell, Judge. Action in equity to set aside a settlement, and for an accounting and judgment on a guardian’s bond. Judgment was rendered dismissing plaintiff’s petition and for costs, from which judgment she appeals.

'Appeal from Polio District Court. — Hon. T. P. Stevenson, Judge.

— Hon. W. N. Trieciiler, Judge. One jVEcGrée contracted with tbe defendant to furnish! material and work for certain stone foundations for buildings under an oral contract that payment should be made when the work was completed.

— IIon. P. P. Wolee, Judge. This is a habeas corpus proceeding in which a mother' seeks to obtain the possession of her infant child. From a judgment depriving defendant of the possession of such child, she appeals.

<p>2 Deeds: delivery: Retention l)y grantor. A deed made by a father, conveying land to a son, delivered to a third person, to be delivered to the son on the father’s death, and so delivered, is effective to pass title, where it was the intention of the grantor that it should become operative at once, but that enjoyment of the property by the grantee should be postponed until the grantor’s death, notwithstanding the grantor retained the power to recall the instrument during his life.</p> <p>1 Appeal: notice op appeal by co-parties. Under Code, section 4111, which permits one or more of several co-parties to appeal, but requires them, in that case, to serve notice of appeal on all their co-parties, the supreme court will not entertain an appeal by a part only of the plaintiffs or defendants in a suit for partition, when such notice has not been served, and where the questions involved will affect the rights or interests of parties not before it.</p>

<p>Appeal from Cedar Rapids Buperipr Court. — IIon. T. AL Giberson, Judge.</p> <p>Plaintlfe, as guardian of tlio four minor cliildren of AL J. Griffin, deceased, brings tbis action in equity to enforce the performance of a contract of life insurance under a certificate issued by the defendant association to said deceased, wherein said minor sons are named as the beneficiaries. The defendants set up as defenses the failure of the deceased to comply with certain conditions precedent to the taking effect of said certificate, wherefore they claim that it is void and of no effect. Decree was rendered in favor of the plaintiff as prayed. Defendants appeal.</p>

— IIon. T. II. Fee, Judge. 1 Platntiee commenced this action before a justice of flic peace, from whom it was appealed to tlie district court; plaintiff stating his causes of action substantially as follows: That defendant occupied a certain storeroom owned by plaintiff; that plaintiff furnished steam heat for said storeroom under an oral agreement whereby defendant was to pay the reasonable worth thereof, which plaintiff alleges is $20.50; that defendant’s tenancy…

— IIon. II. M. Nemeey., Judge. 1 Tiie following contract was entered into by tlie plaintiff and O. D. Goodrich, as administrator of tlie estate of L. II. Goodrich: “It is hereby agreed that thirty days after dale Nickel, Crocker & Christie shall take my claim against the Chicago, Nock Island & Pacific Nail way Company, for the killing of my son, L. II.

— Hon. N. W. Macy Judge. 1 The plaintiff leased to tlie defendants his farm for one year from March 1, 1898, and the rent not having been paid, began suit therefor October 12, 1898, aided by a landlord’s writ of attachment, which was levied on the crops grown thereon.

— IIon. Frank W. Eiciielberger, Judge. 1 This petition, after alleging that defendant is a railway corporation, engaged in operating a line of road from Albia to Des Moines, proceeds as follows: “That defendant lias been in the control and possession of said lino of railroad from the year 1887; that it operated the road by running-trains over it for about two years thereafter, when it ceased to use that part of said road within 'Monroe county, and did not resume operations…

— Hon. W. E. Green, Judge. Plaintiff, a judgment creditor of tlic defendant John L. Yetzer, brings this action to set aside a certain deed conveying real estate from said John L. Yetzer and Laura Yetzer, his wife, to the defendant Mabel Yetzer.

■Appeal from Polk District Court. — Hon. C. P. Holmes, Judge. Action to offset mutual judgments, one of which is for personal earnings more than 90 days preceding the levy thereon. There was a trial upon an agreed statement of facts. The exemption claimed was denied, and judgment was rendered for the plaintiff, ordering the offset prayed. Defendants appeal.

— I-Ion. S. II. Elwood, J udge. Action at law to recover certain freight charges on a threshing machine sold, plaintiff, which it is alleged defendant agreed to pay, and for damages growing out of a suit instituted by defendant, as agent of the J. I. Case Threshing-Machine Company, against plaintiff. The trial court sustained a demurrer to the petition, and .plaintiff appeals.

<p>2 False Representations: proof. Evidence that plaintiff’s agent told the surety on a note that the maker, who was a son of the surety, would pay the debt, and that the liability would not fall on him, and that the surety was unlearned, and weak, physically and mentally, but not so much so as to prevent him from understanding the nature of a surety’s liability, was not sufficient to relieve him from his surety obligation on the ground of fraud, since he was not deceived as to any existing fact.</p> <p>1 Appeal: objection below. Defendant was surety on notes secured by a chattel mortgage, to which he was not a party, and which provided that, in case default was made in the payment in any one of the notes, all should become due and payable. The petition, which was filed after default was made in payment of the first note, alleged that all the notes were due and payable, and the answer admitted that by the terms of the mortgage the whole indebtedness was due “as against the maker.” Held* that the answer did not constitute a denial on the part of the defendant of the allegation that all the notes were due, and that, therefore, he could not raise that question for the first, time on appeal.</p>

— Hon. I. O. Stierwin, Judge. An action by the defendant against the plaintiff having been consolidated with this, the pleadings are somewhat lengthy and complicated, though the issues are 'but few.

<p>Appeal fromCarroll District Court. — Hon. S. M. Elwood, Judge.</p> <p>Action at law to recover taxes illegally collected by the treasurer of Carroll county. Judgment for defendants. Plaintiff appeals.</p>

— IIon. T. E. Stevenson, Judge. Action at law on a contract of guaranty. Defendants pleaded no notice of the acceptance of the guaranty, of advancements made thereon, or of tbe default of the principal debtor. They also pleaded extension of time to the principal, and change in the principal contract without their assent.

<p>1 Landlord’s Lien: exempt property abandoned by tenant. Codé, section 2992, provides that a landlord shall have a lien on-the tenant’s personal property kept or used on the premises during the term, and not exempt from execution. Held, that where exempt property was left on the premises by the tenant at the end of his term, the landlord acquired no lien thereon, since his right to a lien terminated with the tenancy, and the exemption continued up to that time, and the property was not. kept or used on the premises after their surrender, within such, section.</p> <p>2 Same. Where a tenant, on the termination of his tenancy, leaves on the premises exempt mortgaged chattels, and writes the mortgagees, residing at a distance, that he cannot satisfy the mortgage, and offering to assist them in disposing of the property, the letter amounts to such a surrender of the property to' the mortgagees as will prevent the landlord from acquiring a lien for rent.</p>

— Hon. P. B. Woere, Judge. The indictment in this case charges, in substance, that bn the thirteenth day of September, 1897, the defendant, Theodore Bertoch, and one Ernestine Bertoch, who is jointly indicted with the defendant now on-trial; willfully, unlawfully, deliberately, feloniously, premeditatly, and of malice aforethought, and with the specific intent to take the life of a certain one Charles Selhusen, did mix and mingle a certain deadly poison, called “arsenic,” in…

<p>1 2 10 Wills: power of sale: 'What is sale. Where testator’s will gave his wife a life estate in his lands, and directed that she should not sell any of the real estate, she had no authority to make a mining lease whereby the lessee might remove all the coal he desired, at a certain royalty — at decedent’s death — since such lease was a sale of real estate.</p> <p>1 2 12 Life tenant: Authority to lease mine. A life tenant has no implied authority to make a mining lease, where the mines were not in operation at the time of the vesting of the life estate.</p> <p>1 13 'Mining lease: Right to make before admeasurement of dower. A widow whose dower has not been admeasured has no interest in the lands of her husband, so as to make a mining lease thereof.</p> <p>7 8 Administrators:' right to sue for trespass on lands of decedent. An administrator cannot maintain trespass for injuries to real estate of his intestate.</p> <p>3 5 9 . Right to Prove Plea: waiver of objection to plea. Where administrators brought trespass for injuries to real estate of their intestate, and they amended their petition so far as to show that the heirs and devisees had assigned their claims for the injuries to the plaintiffs, and had authorized plaintiffs to prosecute their claims, and no attack was made on the amendment to the petition, and no issue of misjoinder or of plaintiffs capacity to sue was tendered by the pleadings, it was error to refuse to allow plaintiffs to prove the heirship of their assignors. ’ and that the assignment had been made as alleged.</p> <p>6 9 Objection by motion to direct verdict. Where administrators sued for damages for an injury to the real estate of their intestate, and amended their petition so as to show that the heirs and devisees had assigned their claims for such injuries to plaintiffs, and no attack was made on the amendment, a motion by defendant to direct a verdict in his favor on the ground that the plaintiffs had no capacity to maintain the action should have been overruled.</p> <p>4 Substitution of parties. Where administrators sued for damages for an injury done to real estate of their intestate, and thereafter the administrator’s attorney, who also represented the heirs, asked that' the heirs mdgh be substituted as plaintiffs, the court should have allowed the substitution.</p>

— Hon. W. H. Tedeord, Judge. This is a proceeding to admit to probate the last will of Charles Howe, deceased, and a codicil thereto. John W. Richards, executor, and the legatees named in said will, appear as proponents, and Ruth W. Howe and Fred B. Howe, grandchildren of the deceased, appear as contestants.

' — Hon. J. F. Oliver, Judge. Action for damag’es on account of personal injuries caused by a defective street. A jury was waived by the parties, and trial had to the court. From a judgment in plaintiff’s favor, defendant appeals.-

— Hon A. S. Blair, Judge. Judgment was rendered sustaining plaintiff’s demurrer to a part of tbe answer, and, tbe defendants electing to stand on tbeir answer, trial was bad on tbe issue joined by tbe defendants’ general denial, and final judgment rendered in favor of tbe plaintiff. - Defendants appeal.

'Appeal from Marshall District Gourt. — Hon. G. W. Burn-ham, Judge. Action by plaintiff, who is a railway fireman,, for injuries received through the' derailment of a train. The answer was a general denial. Trial to á jury. Directed verdict for defendant, and plaintiff appeals.

<p>2 Contracts: acceptance: Estoppel to deny. Plaintiff leased land of defendant for several years and at an annual rent, to be paid on January 1st, immediately following tbe year for wbicb it accrued; plaintiff to have tbe privilege of buying tbe property for a certain sum at tbe termination of tbe lease. In April of tbe last year, plaintiff informed defendant that be would give' bim tbe agreed amount and a proportionate amount of tbe rent for tbe last year in case be purchased before tbe close of tbe year, and would give bim 30 days’ notice of when be would make payment, wbicb defendant accepted on condition that plaintiff would pay 8 per cent, interest on the purchase price in case payment was not made in thirty days. On September 21st plaintiff mailed a letter giving notice that be would make payment in thirty days, which defendant denied receiving. In October plaintiff instructed bis bank to send defendant tbe purchase price and ten months’ rent. Tbe defendant telegraphed the bank that rent was due for tbe whole year, wbicb the bank remitted, and informed defendant that it would leave the difference to be adjusted later. Held, that plaintiff was entitled to- recover two months’ rent from defendant, since it was too late, after plaintiff had raised tbe money to make the purchase for defendant, to contend that he had never accepted plaintiff’s offer to take a proportionate part of last year’s rent.</p> <p>1 Involuntary Payment: what is: Recovery for money had and received. Plaintiff instructed his bank to remit a certain sum to defendant in payment of land, and defendant, on request of the bank, telegraphed the amount due, which was larger than the plaintiff had authorized the bank to remit. The bank informed defendant 'that it had not been able to obtain further instructions from plaintiff, but, to avoid delay, remitted the amount claimed by defendant, “leaving the difference to be adjusted later.” Held, that the payment was not voluntary, and hence could be recovered as money received.</p>

<p>1 Constitutional Law: ordinance with penalty: Jurisdiction of justice of the peace and on appeal. Constitution, Article 1, section 11, limits the criminal jurisdiction of justices ■ of the peace to cases where the penalty does not exceed a fine of $100, or imprisonment for thirty days. Dubuque City Ordinances, section 12, prescribes a .penalty for the keeping of unlicensed pool or billiard tables, of $5 for each game played thereon. Held, that a justice of the peace has no original jurisdiction of an offense under such ordinance, and hence the district court no appellate jurisdiction thereof, as the offense is a continuing’ one, and the penalty might exceed, $100,</p> <p>2 Same: Validity of ordinance. Under Code, section 947, prohibiting cities under special charters from imposing a fine in excess of $100 for breach of an ordinance, Dubuque City Ordinances, section 12, prohibiting the keeping of unlicensed pool or billiard tables, and providing a penalty of $5 for each game played on an unlicensed table, is invalid, as the offense thus provided for, being a continuing one, the penalty may be larger than that authorized by the statute.</p>

— Hon. T.. IP. Stevenson, Judge. Action at law to recover for labor done under written contract, and for damages growing out óf tbe performance thereof. Tbe ease was tried to a jury, resulting in a verdict in a small amount for tbe plaintiff. Plaintiff’s motion for a new trial was sustained, and defendant appeals.

— Hon. J. K. Whitaker, J udge. At tbe March term, 1899, of said court, Hon. S. M. Weaver, presiding, made an order reciting that it appeared from the testimony and. record in the case of George Barber against George C. Olmstcad, tried and determined at that term, “that there is reasonable ground for proceedings to revoke and suspend license of James F. Howard to practice law in the courts of this state,” and it was ordered that such proceedings be instituted.

<p>2 Sale of Liquor to Drunkard: action for death: Breach of the peace. Though Code, section 2403, forbids the sale of intoxicating liquors to an habitual drunkard or to an intoxicated per, son, and section 2447, subjects one who makes such a sale to a forfeiture, it cannot be said that a sale of liquor to an habitual drunkard or an intoxicated person who drinks it on the spot, is such a breach of the peace as to negative the idea of consent on the part of the purchaser to the sale and drinking of the liquor and to give a cause of action for his wrongful death to his personal representative, the drinker having died from the effects of the liquor so bought and consumed.</p> <p>1 3 Allegation of want of consent: Demurrer. In an action for the wrongful death of plaintiff’s intestate, a petition alleging that defendant furnished liquor to deceased when he “was totally incapable of transacting ordinary business, and at times when he was so dazed with liquor that he had no solfcontrol or judgment, and when he was intoxicated.” and praying damages for his death resulting therefrom, failed to show such a want of consent on the part of deceased as to render his death actionable, and a demurrer thereto was properly sustained.</p> <p>1 3 Same. A petition alleging that defendant furnished liquor to plaintiff’s intestate, knowing that he had an irresistible and uncontrollable appetite for liquor, and was an habitual drunkard, and knowing that the continued use Of liquors would cause his mental and physical decay and death, and also knowing that he intended to use the liquor so furnished as a beverage, but failing to allege that defendant knew that deceased was incapable of consenting to the purchase and drinking of such liquor, was insufficient to support an action for the wrongful death of deceased, resulting from the drinking of such liquor, and was subject to demurrer.</p> <p>1 3 Same. A petition alleging that defendant furnished liquor to plaintiff’s intestate during a period of two years, and when deceased was an habitual drunkard and incapable to consent to the purchase and drinking thereof, but failing to allege that deceased was incapable of consenting to all or any One or more of the sales, or that defendant knew that deceased was incapable of consenting to receiving and drinking the liquors, was insufficient to support an action for wrongful death of deceased resulting from drinking of such liquor, and was subject to demurrer.</p>

— Hon. N. W. Macy, Judge. These cases involve identical questions. They were tried together in the district court, and are submitted here on one record. The facts are in great part stipulated. So far as there is a controversy, the matters will be referred to as they arise in the course of the opinion.

— IIon. M. O. Matthews, Judge. Action to recover balance due on grading contract. Demurrer to tlie petition was sustained and it dismissed. The plaintiff appeals.

- ' Certiorari to tost the validity of an order imposing fines and imprisonment for contempt for violation of au injunction restraining a liquor nuisance.

— Hon. J.- F. Clyde, Judge. Plaintiee, as owner of the • southwest j- of the southwest -} of section 20, township 90,- range 17, Butler county, brought this action June 7, 1888, to recover possession •thereof and $100 damages; At' the March term, 1897, the ■defendants filed their amended and substituted answer, joining issues as will hereafter appear.

— Hon. S. E. Prouty, Judge. Suit in equity to set aside a judgment of the district-court. The trial court sustained a demurrer to plaintiff’s-petition, and plaintiff appeals.-

— How. M. A. Roberts, J udge. Suit in equity to restrain the collection of a special asT sessraent made by the city against the right of way of the Keokuk.& Dos Moines Railway for paving and curbing a street on which the right of way abuts. Plaintiff is using the right of way under lease from the Keokuk & Des Moines.

- — Hon. W. B. Quarton, Judge. This is a proceeding by certiorari to review the action of the district township of Ledyard for the establishment, of the independent district of Germania. The only question involved is as to the validity of the election held to vote for or against the organization of the independent district. The district court held the election void, and the defendants appeal.

— Hon. J. L. Dusted, Judge. 1 In pursuance of an original notice served March H, 1893, plaintiff filed his petition in equity against the defendant B. S. McElhinny, asking to be quieted in the title to lots 07 and 68 in East Dubuque (an addition to the city of Dubuque), as ágainst said defendant.

<p>Appeal from Johnson District Court. — IIon. II. M. Remite v, Judge.</p> <p>Action for contribution. From judgment oil a directed verdict, tlie plaintiff appeals.—</p>

— IIon. F. W. Eiciielberger, Judge. Tiie statement of tlie issues we tahe from tbe brief of appellant’s counsel. . Its correctness is conceded, save as to one matter, which will bo noticed in proper connection. The state of Iowa, as a part of tlie plan for the improvement of the navigation of the Des Moines river, authorized by chapter 113, Acts First Genera] Assembly, and subsequent acts, constructed a dam, with lochs, at Bonaparte. The dam ivas completed in tlie year 1852.

— Hon. Obed Caswell, Judge. 'Action to recover damages for a 'breach of ail alleged marriage contract. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Z. A. Church, Judge. The'plaintiff states as liis cause of action in substance .as'follows: That prior to April 3, 1896, the defendants unlawfully conspired together for the purpose of having ■plaintiff indicted and tried for the pretended crime of arson; ■that in pursuance thereof they, on April 3, 1896, wilfully and maliciously, and without probable cause therefor, did unlawfully procure him to- be indicted by the grand jury of Carroll county on six several…

— Hon. William GL Thompson, Judge. Action in equity to enjoin defendant city from maintaining in the street an open sewer or ditch. From a judgment dismissing the petition and taxing costs to plaintiif, •he appeals.

<p>Appeal from Taona District Court. — Hon. Obed Caswell, Judge.</p> <p>• The plaintiff herein is the foreign receiver and assignee of a foreign corporation. A demurrer to the petition was interposed on this ground. The demurrer was sustained, and the plaintiff appeals.</p>

— TLoA. C. Pi Holmes. ■Judge. Action to recover damages for killing one bay torso of the value of $140 on or about tbe seventeenth day of October, 1893, by one of the defendant’s trains at a point where the defendant had a right to fence, but had not fenced.

Cross Appeals Polk District Court. — Hon. S. F. Prouty, Judge. Held: tbe following proceedings were instituted, as related by counsel, which we are glad to avail ourselves of in stating tbe present situation of affairs: Owing to the alleged informality in some of tbe returns, tbe board of supervisors refused to declare that tbe propositions had been adopted, and a mandamus suit was instituted, tbe…

— Hon. G. W. Burn- ' ham, Judge. Plaintiee brings this action in equity for judgment,, and to foreclose a chattel mortgage executed to him July-6, 1896, by Ed. S. Joselyn, on a certain stock of merchandise and store fixtures tó secure the payment of six promissory notes made at different dates between August -i, 1893, and July 6, 1896, inclusive, aggregating $2,000, and a second mortgage executed July 23, 1896, on the same-property, to secure the same debt, made to correct…

— Hon. L. E. Eel-lows, Judge. Action in equity to enjoin and abate a liquor nuisance.

— Hon. J. P. Whitaker, Judge. This is an appeal from a ruling on the application of one J. L. Perry, asking that the sum of $300 in money, deposited as bail for the appearance of 1VL Evans to answer two indictments found against him by the grand jury of Hardin county, be returned. Application denied. — :

<p>3 Homicide: contributory causes: Death hy Disease. Whether one who injured another who died of empyema was guilty of homicide- depends upon whether the injuries inflicted by him directly contributed to produce the empyema, and the fact that deceased would not have died therefrom if he had been properly cared for is immaterial.</p> <p>2 Indictment: Construction. The indictment sufficiently charged murder in the first degree, because the references to words essential to such charge, found in other parts of the indictment were so clear that a repetition of said words was needless.</p> <p>1 Duplicity: Punctuation. An indictment for murder charged that defendants did “willfully, deliberately, premeditately and with • malice aforethought and with the intent to kill and murder one A. C., feloniously strike, jump upon, stamp and kick tne said A. C. upon his breast, side and shoulder; did thus strike tne said C. with their fists and stamp, jump upon, and kick said A. C. with their feet, and did. then and there in the manner aforesaid, inflict mortal wounds of which- said wounds so inflicted as aforesaid” by the said defendants the said A. C. then and there died. Held, that the punctuation did not make the indictment bad for duplicity, as, without the punctuation, its meaning was clear.</p> <p>5 Evidence : Harmless error. The statement of a witness in a prosecution for murder to the effect that he was reguested by another to go to the barn where the deceased was injured to see what the trouble was, if improperly received, was without prejudice.</p> <p>6 Hypothetical questions. No complaint can be made because of the omission of established facts in hypothetical guestions propounded to physicians, by the state, if these were supplied on cross-examination.</p> <p>4 Degrees: Jury question. In a prosecution for murder no element in the acts necessary to constitute a degree of murder or of manslaughter was wanting in the evidence, but the state relied solely on circumstantial evidence, with the exception of the dying declarations of the deceased. Except that tending to show defendant’s intoxication, none bore directly upon the motive for what was done. Held, that the particular degree of murder or of manslaughter was for the jury.</p>

<p>.'Bastardy: exhibition op child as evidence. On a prosecution for bastardy, it was error to permit tbe exhibition to the jury of a child, under 2 years of age, for the purpose of showing its resemblance to defendant.</p>

— Hon. L. E. Ebldows, Judge. The defendant, Max Bysong, was indicted, tried and convicted of the crime of assault with intent to inflict great bodily injury upon Samuel Bysong, and judgment of imprisonment and for costs was rendered against him, from which he appeals.

— IIon. Henry Bank, Jr,,. Judge. Action in equity to have a bill of sale absolute on its-face declared to be a chattel mortgage, and for an accounting. There was a decree for defendant, after which the court sustained a motion for a new trial, from which order the defendant appealed.

<p>Appeal from Hamilton District Court. — How. D. II.. Hindman, Judge.</p> <p>Action for personal injuries. Judgment for defendant, and the plaintiff appealed.</p>

— How. Hobert Sloan, Judge. In December, 1897, and prior thereto, the defendant Hodge was engaged in the sale of liquor on certain premises in the plaintiff city, under the provisions of chapter 62, Acts Twenty-fifth General Assembly. The sureties on his bond executed in pursuance of said act are defendants.

<p>2 Seduction: evidence: Admissibility. On a prosecution for seduction, evidence of an indecent remark by a male acquaintance in prosecutrix’s presence, though not shown to have been addressed to her, is admissible, with further evidence tó show whether it caused indignation on her part, as bearing on her previous chaste character.</p> <p>3 ■Same. On a prosecution for seduction, evidence that prosecutrix, before the alleged seduction, knowingly associated with men of bad character is admissible, as bearing on the question of her chaste character.</p> <p>1 Instructions: Province of jury. On a prosecution for seduction, it is error for the court to instruct the jury that as there was no controversy as to the prosecutrix being an unmarried woman, and the crime having been committed within IS months prior to the indictment, they were only to consider whetner she was of chaste character, and whether accused had seduced her, since the court cannot instruct that an essential fact is established, though there is no evidence to the con- . trary.</p>

— Hon. M. A. Roberts, Judge. The defendant was tried on an indictment charging murder in tbe first degree. He was convicted of manslaughter, and appeals from a judgment thereon.

— Hon. H. M. Townes, Judge. Action on a written promise to pay the stim of $2,500, to which- was attached the following: “The conditions of this are that Hickman Grain Co., dealers in grain for shipment and feeding at Clearfield, &c., shall get money of said bank, shall do. checking and depositing as required by their .business from time to time during the six months, and wo become responsible to said bank for any amount their books show against said Hickman Grain Co., not…

<p>8 'Rape: indictment. An indictment for rape which states that defendants willfully and feloniously assaulted the prosecutrix, and did willfully and feloniously ravish and carnally know her, includes the offenses of assault and battery and simple assault.</p> <p>8 "Included offenses: Instructions. Where an indictment for rape includes the offense of assault and battery and assault, and the evidence tends to show that the crime was committed by another, and that defendant did not lay hands on the prosecutrix, it is error to fail to instruct on the included offenses of assault and assault and battery. (In this case, the lowest offense charged on was assault with intent to ravish and the conviction was for that offense. — Reporter.)</p> <p>5 Instructions. The failure to specifically define the crime of assault-to commit rape, and to state the acts necessary to constitute it, is not error, when the instruction given in connection wuh a full instruction defining rape, will indicate the force inquired to constitute the former crime.</p> <p>■i •Conspiracy: hiding and abetting: Rape. Where there is evidence in a prosecution for rape tending to show that the defendant and another conspired to commit the crime, and that defendants were present and aided and abetted in the crime, an instruction that if there was a conspiracy, and defendants participated therein, and'were present and took part in carrying it out, they would be as guilty as the man who accomplished the joint object, is erroneous, because it conveys the impression that it is intended to define the consequences resulting alone from the conspiracy, and then apparently blends it with the results flowing from aiding and abetting a crime. One who aids and abets a crime is not equally guilty with the principal, though one who conspires with the principal to do what the principal does, may be.</p> <p>6 ¡Same. Where defendants are alleged to have aided and abetted in the commission of rape, an instruction which states that the jury must find that defendants were actually present or about the place of the commission of the offense, or so near as to give countenance and support to the act complained of, before they can be found guilty, is erroneous, since mere presence alone does not constitute aiding and abetting a crime.</p> <p>7 Evidence of Good Character: effect. Where evidence of the general good character and reputation of defendants and of their good reputation for chastity is introduced in a prosecution for rape, it is error to instruct that the jury may consider such facts, if found to be facts, in determining whether the witnesses for the state have been mistaken or have testified falsely, since such evidence should not be limited to the purpose of discrediting the state’s witnesses.</p> <p>3 Joint Trial: criminal law: Admissions of One Defendant. Where several defendants are jointly tried for rape, the admission in testimony of admissions of one of the defendants, made after the commission of the crime, is not error, when instructions are given that it can only be considered against the defendant making the admissions.</p> <p>1 Severance of challenges. Code 1897, section 5364, provides that peremptory ‘challenges in criminal cases shall be exercised in the same manner as authorized in the trial of civil cases. Code, Civil Procedure, section 3678, provides that when there are several parties plaintiff or defendant in a civil case, and no separate trial is allowed, they shall not sever their challenges. Held, that defendants jointly tried for a felony are not entitled to separate their peremptory challenges.</p> <p>2 Drawing talesmen. Where talesmen to complete a jury in a criminal cases once are drawn from the talesmen’s box. as required by statute, it is not error to call them as they enter the court room, without re-depositing their names in the jury box and drawing therefrom.</p>

— Hon. N. W. Macy, Judge. The defendant was accused in tbe indictment of practicing as an itinerant physician, without first having obtained a license from the state board of medical examiners. The defendant demurred thereto on the ground that certain provisions of the Code with respect to said license are obnoxious to section 6 of article 1 of the constitution of Iowa and the fourteenth amendment to the constitution of the United States.

— Hon. A. S. Blair, .Judge. At' the general election in 1899 these parties were opposing candidates for the office of sheriff of Grundy county. Upon a canvass by tbe board of supervisors it was declared tbat incumbent had received 1,423 votes, and tbe contestant 1,422, and tbe incumbent was declared elected.

— Hon. H. M: Towner, Judge'. This action is upon two promissory notes made by 'Elmer A. and Eunice' C. Olin, botb of whom are parties defendant. The áction is aided by an attachment directed against the property of defendant Elmer A. Olin, and was levied on á certain 80 acres of land in Einggold county, Iowa, on the seventh day of August, 1898.

— IIon. John T. Scott, Judge. On the thirteenth day of May, 1898, the plaintiff filed a petition in the district court of Mahaska county againsi Thomas Seevers and Harve.

— TIon. J. H. Apple-gate and James D. Gamble, Judges. Dependant was indicted hy the grand jury of Madison ■county for the crime of perjury.

— Hon. Bobert Sdoan, Judge. Action to recover $500, alleged to be one-half the value ■of a wall in common erected by the plaintiff, and now used by the defendant. The case was tried to the court, and at the resquest of counsel the court made special findings as to the facts. Judgment was rendered in favor of the plaintiff for $377.72|-. The defendant appeals.

— IIon-. C. H. Kelley,. Judge. From an order sustaining- defendant’s motion to set-aside a default and judgment and grant a new trial, plaintiff appeals.

<p>1 2 Insurance: mutual company taking premiums in violation op law. Where a mutual fire 'insurance company immediately on the issuance of a policy required the insured to pay a certain amount, before it had incurred any liability to other-members on account of losses, and the company did not need funds to meet outstanding obligations, such amount was a. premium, and not an assessment, and was, therefore, a violation of Code 1873, title 9, chapter 4, section 1160, under which th,e association was organized, prohibiting such associations, from receiving premiums.</p> <p>4 6 Estoppel to urge that violation as a defense: Timely suit. A. mutual fire insurance company, organized under Code 1873, title 9, chapter 4, section 1160, providing that the provisions relating to, other insurance companies shall not apply to mutual association, and that such associations shall receive no’ premiums, compelled insured to pay a premium. A by-law of the company provided that all claims should be paid within 90 days from due notice and proof of loss, and no action-, should be sustainable unless commenced within six months after loss. Acts Eighteenth General Assembly, chapter 211,. fixes the time within which such notice of loss shall be made,, and provides that no action shall be begun within 90 days after such notice had been given, which provision applies to. all contracts of fire insurance, anything in the contract to-, the contrary notwithstanding. The insured brought action. within the time limited by section 211, but not within six months after denial of liability by the company. Held, that the action was commenced in time, even if Acts Twenty-eighth General Assembly, chapter 211, -did not apply to mutual fire associations organized under Code 1873, title 9, cjhapter 4, section 1160, since, as defendant was doing business in violation of section 1160, in exacting a premium from its members, it could not claim exemption from the operation of chapter 211.</p> <p>4 'Timely suit: Hates from proof of loss. Where the by-laws of a mutual fire insurance company provide that all claims shall be paid within 90 days from proof of loss, and that no action shall be sustainable unless commenced within six months after loss occured, and the contract of insurance gave insured the right to bring his aqtion at any time within the six months after the loss became payable, an action commenced within six months from the expiration of 90 days after notice of the fire is commenced in time, since the loss was not payable until the expiration of such 90 days..</p> <p>5 Proof loss permissible though waived. Where a mutual fire insurance company, on notice of a fire, wrote insured, denying liability, he was not obliged to rely upon such denial as a waiver of proof of loss, but he might go on and make such proofs.</p> <p>'7 ■■Construction of statutes. Acts Eighteenth General Assembly, chapter 211, fixes the time within which notice of loss by fire shall be given the insurer, and provides that no action shall be begun within 90 days after such notice has been given, which applies to and governs all contracts of fire insurance, anything in the contract to the contrary notwithstanding. Code 1873, title 9, chapter 4, section 1160, relating to insurance companies, provides that nothing in the chapter shall, prevent the organization of mutual associations, and that the provisions of the chapter as to other companies shall not be applicable to such associations. Held, that chapter 211 applies to and governs mutual fire associations organized under section 1160, as to the time within which actions shall be commenced.</p> <p>2 3 ."8 .'Forfeiture of Policy: non-payment of premiums: Notice. A mutual fire insurance association, organized under Code 1873, title 9, chapter 4, section 1160,' prohibiting such associat.ons from receiving premiums, took a note from insured for a premium for a definite amount, payable in 60 days, providing that, if not paid when due, the policy should be suspended without further notice. The note was not paid when due, and a loss occurred thereafter. Held, that the failure to pay the note when due did not suspend the policy, where the association had not given plaintiff the notice required by Acts Eighteenth General Assembly, chapter 210, sections 1, 2, providing that a fire insurance association taking a note for a premium shall not declare the policy suspended for non-payment of the note unless 30 days prior thereto the company had given the assured written notice that his premium is due, and unless paid within such time his policy will be suspended.</p>

<p>1 3 Mandamus: when pole eemedt: Canvass of election returns. Code, sections 4241, 4344, provide that the action of mandamus is one brought to obtain an order commanding a board to do an act the performance of which the law enjoins as a duty resulting from the office, and that an order for mandamus shall not issue in any case where there is a plain, speedy and adequate remedy at law, save as therein provided. The board of supervisors refused to canvass election returns which the judges had failed to properly certify and authenticate, and to permit the judges who appeared before them at the same session to • correct any errors in the authentication. Held, that mandamus will lie to compel the board to' permit such authentication and to recanvass the returns, at the suit of taxpayers and voters not' candidates at such election, since it is the only remedy available to complainants.</p> <p>1 4 When warranted. Where election judges failed to properly certify and authenticate the .returns from their precincts, but, on discovering their mistake, offered to certify them in due form, while the board of supervisors was in session 'and in the act of canvassing the returns of the county, which the board refused to permit, — there being no question as to the identity of the judges, and that the returns were at all times in the custody of the proper parties, — it wa,! competent for the court to order the board to permit such autheiitication and to canvass such returns since it was the duty of the' board to have permitted such certification.</p> <p>1 5 Who mat not complain oe order. In an action by taxpayers and voters in certain election precincts, for mandamus, to compel the board of supervisors to permit the election judges in such' precincts to correct their returns, which they failed to properly authenticate and certify, and, when so corrected,- to canvass, them, the election judges were present in court, ready and, willing to certify the returns in due form. Held, that the action of the court in directing them to do so forthwith, and then ordering defendants to reassemble and recanvass the votes, could not be complained of by defendants, since, by consent of the judges, they did in court what it was proper for the court to order the board to permit them to do.</p> <p>'2 Appearance Term: waiver. Where, in an action to compel the board of supervisors to permit the authentication of returns by the election judges and to recanvass the votes, the county attorney appeared for defendants, and plaintiff’s attorney appeared for his clients, at the same term at which the petition was filed, and, on stipulated facts, proceeded to trial, the court had jurisdiction for purposes of adjudication at .such term, since the objection that the term at which a petition is filed is not the appearance term is waived hy appearance and consent to proceed to trial.</p>

— How. Horace 11. Towner, Judge. Defendant was indicted, tried, and convicted of the ■crime of burglary, and from the sentence imposed appeals.—

— Hon. Henry Bank, Je., Judge. ' Plaintiee brought an action against the defendants before a justice of the peace on a sight draft drawn on Ullman & Co. by B. T. Booser. Ullman & Co. answered, denying indebtedness to the plaintiff and denying Booser’s authority to draw on them. On the issue made the case was tried by the justice, and judgment rendered against the defendants; whereupon Ullman & Co. removed the case to the district court by writ of error.

— -Hon. F. II. Helsell, Judge. This action was commenced before C. F. Aiken, a justice of tbe peace, on the sixth day of December, 1898. The petition shows that recovery is sought on a promissory note for $128.50, with interest from March 20, 1898.

— IIon. A. W. Wilkinson, Judge. Suit in equity to foreclose a mortgage. From a decree holding’ that certain attachment liens were superior to plaintiff’s mortgage, plaintiff appeals.

<p>Appeal from Louisa District Court. — Hon. W. S. Withrow, Judge.</p> <p>1 2 Plaintiee, tlie beneficiary named in a certificate of insurance issued by the defendant on the life of Hans V. Metzradt, deceased, brings this action for judgment on said certificate, and foi a decree requiring the defendant to make an assessment to pay the "same. The defendant, in an amended and substituted answer, sets up the following defenses: “(1) Defendant alleges fraud in procuring the certificate, and breach of warranties contained in the certificate, in that in his application the deceased falsely represented and warranted that he had not, and never had, disease of the heart, while in fact he was at that time and for some time prior suffering with disease of the heart. (2) That it was stipulated in said application and certificate that, if deceased should die by his own hands, whether sane or insane, then the certificate should be null and void; and that decedent did die by his own hands. (3) That prior to the commencement of this action plaintiff caused defendant to be notified that deceased died by his own hands, and furnished to defendant sworn statements and certificates and the verdict of a coroner’s jury that deceased caused his own death by suicide; that thereby plaintiff led, caused, and permitted the defendant to believe that the deceased had committed suicide, and that, relying thereon, defendant incurred expense in preparing to defend this action; wherefore plaintiff is estopped from claiming that deceased did not die by his owns hands.” Defendant attached a copy of the verdict of the coroner’s jury finding that deceased “came to his death by his own hands, supposed to have taken chloroform while under temporary insanity.” Plaintiff replied, in substance as follows: That upon deceased’s making application for said certificate the defendant caused him to be examined by its examining physician, who after examination, declared the applicant a fit subject for insurance, and so reported . to the defendant, and that by reason thereof defendant is estopped from claiming that deceased was not in the condition of health stated by him in his said application. Plaintiff denies that deceased was suffering from any disease, .or that he had been for some time prior to making said application, and denies that he made any false warranties or representations. Plaintiff denies that she caused the defendant to be notified that deceased died by his own hand, denies that she furnished the defendant sworn statements and certificates to that effect, and denies that she in any way misled defendant to its prejudice. The defendant moved to strike that part of the reply setting up that deceased was examined by the déíendant’s examining physician, and reported a fit subject for insurance, for tlie reason tbat tbe same is immaterial. Tbis motion was overruled, and the defendant excepted. On trial bad, judgment and decree were rendered for tbe plaintiff. Defendant appeals.</p>

— Hon. T. NGiberson, Judge. 1 This is au action for tlie recovery of the statutory penalty for failure to satisfy of record a mortgage which is alleged to have been paid. The facts are that the plaintiff was married, and at the time of the transactions in question his wife had been adjudged insane, and was confined in the hospital in Independence.

<p>Appeal from Dubuque District Court. — IIon. Fred O’Donnell, Judge.</p> <p>Albers owned a stock of liquors and saloon fixtures and furniture at Carroll, Iowa, upon which he had executed a chattel mortgage to secure payment of $852 to Urbany, of the same place. In May, 1890, these persons authorized Wernimont to exchange this property for land in South Dakota. Thereupon Welch and Wernimont, in behalf of defendants, entered into a written contract, by the terms of which Welch promised to convey the land, subject to a mortgage of $550, to defendants, in consideration of the stock of liquors and the furniture and fixtures, and to give his note of $400 in difference, to be secured by mortgage on the furniture and fixtures only. Welch executed a conveyance of the land to Urbany, and the note and mortgage to Albers, but claims, although Albers gave him a bill of sale therefor, never to have received any of said personal property, and the purpose of this action is to recover its value. The agreement stipulates that “all rights arising under this contract [are] payable at Dubuque, Iowa.” The answer and the evidence were such as to put in issue Wernimont’s authority to make the written agreement, and defendants’ ratification thereof; Avhether the defendants had delivered the goods, and, if not, had refused so to do; and if delivered, whether Albers had lawfully foreclosed his mortgage. The latter, in a counterclaim, pleaded the foreclosure of his mortgage, and prayed recovery for the balance due on the note, and also for expense paid for storage. Trial to jury resulted in a verdict and judgment against defendants, and they appeal.</p>

<p>Appeal from Decatur District Court. — Hon H. M. Towner, - Judge.</p> <p>The defendant appeals from a judgment convicting" him of maintaining a liquor nuisance.</p>

<p>Appeal from Appanoose District Gourt. — How. E. W. Etchelberger, Judge.</p> <p>Plaintiffs, owners of the minority of the shares of' capital stock in the defendant corporation, the Interstate Supply Company, bring this action against the defendants, the executors, owners of the majority of said stock, to recover damages for the alleged wrongful conversion of the property of said corporation. A jury being waived, the case was tried to the court; and, at the close of the evidence for the plain- ■ tiffs, defendants’ motion that the plaintiffs be allowed nominal damages only was sustained, and judgment rendered in favor of the plaintiffs for five dollars. Plaintiffs appeal.—</p>

— Hon. G. W. Burn-ham, Judge. 1 In its inception this was an action in replevin without bond, which is our statutory substitute for the common-law action of detinue, against defendant Metcalf as sheriff, claiming.- a right to the possession of certain mowers. Afterwards a substituted petition was filed, counting in trover for the value of the mowers, and making the Benton County Savings Bank a party defendant.

<p>Appeal from Cass District Court. — Hon. W. E. Green,. Judge.</p> <p>.1 Plaintiff's petition is in two counts; the first claiming damages for the breach of an oral contract of marriage,, and the second to recover damages for seduction. Plaintiff alleged that she was a resident of Audubon county, and 'the defendant, “a minor between the ages of nineteen and twenty years,”, was a resident of Cass county, “until he absconded a short time since.” For cause of attachment against his property, she alleged that the defendant had property in Cass county subject to attachment, and that he had absconded. She asked for the appointment of a guardian ad litem, for an attachment against the defendant’s property and -for judgment. An order for an attachment was made and án attachment' issued and levied •upon , lands in 'Cass county belonging to- the ' defend?ant: The defendant answered, denying • generally; and during the early ’progress of the trial, on application of the plaintiff, suggesting the'minority of • the. defendant, John Hudspeth, Esq., was appointed guardian ad litem, and answered, in substance, as follows: He adopted the answer of the defendant, and, as to the first count, claimed that defendant, being a minor, was incapable of entering into any binding contract of marriage. Eor answer to both counts he claimed that because of the minority of the defendant the action should be abated. On the trial the court withdrew from consideration the first count, ■ and submitted the case on the issues joined on the second. Yerdict was rendered in favor of the plaintiff for $2,650. Judgment was rendered overruling the defendant’s motion for a new trial, sustaining his motion to dissolve the attachment and in favor of the plaintiff for $2,650 and costs— “execution not to issue therefor, for the reason that the defendant is a minor, but such judgment shall be enforced through the probate court.” Plaintiff appeals from that portion of the judgment which discharges and releases the attached property and denies the right to issue execution on said judgment, and which requires the plaintiff to obtain satisfaction of the judgment through the probate court. The defendant also appeals, assigning as error the refusal of the court to give an instruction asked. While the jury was deliberating on this case a guardian was duly appointed for the defendant and his property.</p>

— I-Ion. A. W. Wilkinson, Judge. Plaintiff purchased of defendant a certain 40 acres of land in Warren county, receiving a warranty deed therefor. Said deed contained the usual covenants that defendant had a good and perfect title; that he had good right and lawful authority to sell and convey the premises, which were free and clear of all incumbrances; and that he would warrant and defend the same against the lawful claims of all persons' whomsoever.

<p>Appeal from Winneshiek District Court. — Hons. L. E. Eel-lows and A. N. Hobson, Judges.</p> <p>Plaintiff is administrator in this state of the estate of one L. W. Matteson, deceased, late of St. Paul, Minn., and defendant is receiver of the First National Dank of Decorah. This action was in replevin to recover possession of 16 bonds of the Iowa & Minnesota Investment Company, each of said bonds being of the face value of $500. There was a denial of plaintiff’s right to recover as to 12 of the bonds, and an equitable defense interposed against his claim to the remaining 4. The law and equity branches of the action were separately tried; the former before Fellows, J., and the latter by Hobson, J. In both actions judgment went in favor of plaintiff, there being a directed verdict on his motion in the law case. Both proceedings are submitted here on one record, defendant being appellant.</p>

— Hon. IT. M. Townee,. Judge. Action to recover damages for the death of a girl 8' years of age. There was a trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

<p>1 2 Attorney Lien: settlement by client pending appeal from judgment against him. On the first trial of a cause against a railroad company a judgment for plaintiff was obtained, on which her attorneys filed liens. The judgment was thereafter reversed, and a retrial resulted in a judgment for the company. Pending an appeal therefrom, a settlement was effected between the parties under an order of court, the amount agreed upon paid to plaintiff, and the action and appeal dismissed. Held, that a lien in favor of plaintiff’s attorneys based on a contract for an enlarged compensation, made after the procurement of the first judgment, should have been satisfied, and that they were entitled to protection against the company.</p> <p>3 Champertous contract: What is not. A contract by attorneys agreeing to prosecute an action against a railroad company, by which they were to have one-half of the amount recovered, and by which, also, plaintiff was to pay them the money advanced in the cause, together with their personal expenses relating thereto, is not champertous and void.</p>

— Hon. A. B. Thornell, . Judge. Defendants were garnished as supposed debtors of the ■ firm of Pullman & Hettinger. As such garnishees they filed .answer, denying that they were indebted to said firm, or that they had anypropertyor money of the firm in their possession.

<p>Appeal from Van Burén District Court. — FCon. M. A. Hoberts, Judge.</p> <p>Action upon a promissory note. Defense, foreign statute of limitations. Trial, and judgment for the plaintiff.. Defendant appeals.</p>

— IIon. William Hutchinson, Judge. Action to enjoin the opening of a public highway over the plaintiff’s land. Judgment dismissing plaintiff’s petition. He appeals.

— IIon. A. J. House, Judge. Action on a promissory note. Defense, that the note was obtained by duress, and is without consideration. The case was tried to the court without the intervention of a jury, and from a judgment in defendant’s favor plaintiff appeals.

— Iíon. S. M. Weaver, J udge. The defendant ordered some ladies’ jackets-, which were delivered August 15, 1897. About September 29th these were returned to the plaintiff, who refused to receive them, :and in this action he seeks to recover their value.

— Hon. Eranklin C. Platt, Judge. Elisha Tobey died in 1896. On. June 16, 1898, the executors filed a petition averring, among other things, certain loans and advancements to his children, and prayed for an appropriate order for the distribution of the funds then on hand. An order was entered that $1,000 had by T. P. Tobey be treated as an advancement, and $350 loaned E. J. Tobey as a part of the assets of the estate, and they appeal.

— IIon. William Hutchinson, Judge. Plaintiee sued for an amount due him of $122.51-, and took an attachment against the property of the defendant that was levied thereon. Defendant presented a counterclaim for the wrongful suing out of the attachment, claiming, including exemplary damages, $1,220.

— IIon. D. E. Hind-man, Judge. Action to recover a balance alleged to be due for personal property sold and delivered to the defendant. Trial to jury, and verdict and judgment for plaintiff. The defendant appeals.

— Hoar. W. E. Green, Judge. Plaintiee filed in the district court of Aubudon county ■a complaint, on relation of Eliza Hawk, a resident of said •county, alleging that she was an unmarried woman, 20 years •of age, resident of Exira township, Audubon county, and that she was then pregnant with a child, which, if born alive, would be illegitimate, and that the defendant Erank L. Harris is the father thereof.

.Appeal from, Des Moines District Court. — Hon. W. S. Withrow, Judge.

— Hon. M. J. Wade,. Judge. Action to recover for injuries to a horse shipped over the defendant’s road. There was a trial to a jury, and a verdiet for the plaintiff for $2,500. On a motion for a new trial, the court required the plaintiff to remit $700 of this amount or submit thereto. The plaintiff filed a remittitur, but excepted to the order. Judgment was thereupon rendered for the plaintiff for $1,800. Both parties appeal.—

— Host. Z. A. Churcii, Judge. Action to subject part of the value of a homestead to the payment of a judgment.

— Hon. T. M. Fee,, Judge. This is an action to recover of a sheriff a sum of money-deposited with him by the Wabash Railroad Company as. damages due plaintiffs for a right of way of said railway,, which had been secured by condemnation proceedings across, a lot belonging to said plaintiffs. The amount deposited was. what had been awarded in the ad quod damnum proceedings. There ivas a directed verdict against John W. Mclntire, and. he appeals.

—Hon. J. H. Apple-gate, Judge. This is an action in equity, tbe particulars of winch will be set out in the opinion. From a decree dismissing the petition, plaintiff appeals.

-Appeal from Madison District Court. — Hon. A. W . Wilkinson, Judge. Action at law on a policy of fire insurance. The defendant, among other things, pleaded that the action was not brought within the time fixed by the policy. Trial to a jury, verdict for plaintiff, and defendant appeals.

.Appeal from Boone Dislrict Court. — Hon. S. M. Weaver, Judge. Action to recover for a breach of a contract not to engage in business for a specified time. Verdict and judgment for tbe plaintiffs. Defendant appeals.

— Hon. Henry Bank, Jr.,, Judge. Action at law to recover a commission, for tbe sale of' real estate. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal.

— Hon. John T. Soott, Judge. This action was brought- on a judgment obtained against the defendant in Nebraska. Service of the original notice herein was made by leaving a copy with the defendant’s wife at their home in Jasper county, on the-twenty-seventh day of March, 1895.

— Hon. J. B. Clyde, J udge. Austin G. Bentleywes the husband of Julia Ann Bentley. In January, 1881, he made a will, in which, after prowiding small bequests for the plaintiff, his son, and a daughter, he gave the remainder of his property, real and personal, •to these defendants, making no provision for the wife.

— ITon. C. P. Holmes, Judge. 1 The issues as presented by tbe district court, and the facts as found by it, are as follows: “Action upon a promissory note for $450, payable to the order of plaintiff, and signed, ‘Des Moines Driving Park, by E. B. Earley, Sec’y.’ After denying the execution of the note, the answer avers that the note was not signed by or with the authority of the board of directors of the defendant; that said Earley had no authority from said board or any…

— Hon. A. B. Dewey, Judge. On tbe twelfth day of March, 1896, Emanuel Hites ■executed to Beuben Shibley his warranty deed of the southwest southeast ¿, of section 1 in township 74 north, of range 17 west of fifth Principal Meridian. The agreed consideration was $800, of which $600 was left with O. P. Searle, to be forwarded to the Aetna Life Insurance Company, to obtain a release of this 40 acres from a mortgage of $3,000 held by it on this and other lands.

— Hon. A. N. Hobson, Judge. Action on a written contract of sale of farm machin■ery. There was a directed verdict, and a judgment thereon for the plaintiff. The defendant appeals.

— IIon. James D. Smyth, Judge. Plaintiee brought suit in equity originally to enjoin the transfer of a promissory note, claiming to be the owner of a one-half interest therein. Defendant answered, setting up a claim also to a one-half interest, and asserting that plaintiff was liable to him as an indorser. By cross petition defendant asked judgment against plaintiff on such contract of indorsement.

— Hon C. A. Bisiiop, Judge. Dependant was convicted of tbe crime of selling adulterated milk. His motion in arrest of judgment, based on the proposition that the statute is unconstitutional, was sustained, and he was released, and his bond exonerated. From this order the state appeals.

<p>1 Contract to Redeem Notes: solvency op makers: Re<¡nonübiUty under contract. Where defendant sold goods on commission for plaintiff, and agreed to redeem all notes taken by them in payment which were not signed by responsible per-ons, an instruction that if, at the time the notes were given, the make# or makers were in fact persons of well known responsibility, but since became insolvent, such insolvency would not render defendants liable, was proper.</p> <p>1 6 Construction of “any time”: Contract to redeem notes. Where defendant sold goods for plaintiff on commission, and agreed to redeem all notes taken in payment “if at any time plaintiff should learn that such notes were not signed by responsible persons,” and plaintiff did not bring suit to enforce the liability of defendant for notes taken in 1894, 1895 and 1896 until 1898, and there was evidence that plaintiff had early information that some of the notes were not signed by responsible persons, an instruction that “if at any time,” as used in the contract, should be construed to mean within a reasonable time, was proper.</p> <p>5 Settlement: executing note: Instructions. Where defendants sold goods for plaintiff on commission, and agreed to redeem all notes taken in payment which were not signed by responsible persons, and there was evidence that they had made a settlement with plaintiff and executed their notes for the balance, it was proper to instruct the jury as to the effect of such settlement, and the presumption arising from the giving of the notes.</p> <p>3 Appeal: withdrawal of exhibits: Estoppel to complain of. Plaintiff cannot first urge as error, on, appeal, the action of the trial court in allowing defendants to withdraw certain exhibits from the evidence.</p> <p>2 Curing error by instructions. Error in admitting evidence tend ing to vary the terms of a written contract was cured by an instruction taking such evidence from the consideration of the jury.</p>

— Hon. A. J. House,. Judge. After trial on its merits in the district court, judgment was rendered herein for the plaintiffs, from which the defendant appealed, but gave no supersedeas bond. After the appeal was perfected he filed his petition herein, asking that the referees who had been appointed to sell the real estate belonging to the estate of Mott Watson be restrained from so doing, and from distributing the proceeds thereof, pending his appeal to this court.

— Hon. Ben McOoy, Judge. Deeendant is a road supervisor, and this action is in ■equity to restrain him from removingor interfering with a fence on plaintiff’s land along the line of a highway. There was a decree for plaintiff, and defendant appeals.

— Hon. J ~W. Bollinger, Judge. Action of forcible entry and detainer. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.- — •

— Hon. William. Hutchinson, Judge. This action was brought to recover for services rendered the defendant, Homer B. Hitt, who was a non-resident of this, state. It was aided by attachment, which was levied on certain real estate, and by garnishment. There was a default and judgment against Homer B. Hitt. Homer B. Galpin is the administrator of the estate of Lucie W. Hitt, appointed after this action was commenced and the levies made. LucieW.

— Hon. Z. A. Church, Judge. Defendant was convicted of the crime of assault with' intent to commit manslaughter, and appeals therefrom. — ■

— I-Ion. M. A. Eo.berts, Judge This is an action to foreclose a mechanic’s lien for labor and materials upon certain mining property owned by the Standard Coal Company at the time the contract for the labor and materials was made, bnt now belonging to defendant Bradley.

— IIon. S. F. Prouty, Judge. The petition alleged, in substance, that Mrs. A. D. Littleton had acquired a five-acre tract of land lying outside the city limits of Des Moines, February 21, 1889, and eontinuously occupied, it as a homestead from that time until its conveyance to plaintiff, August 27, 1898; that neither this nor any adjacent land had ever been platted, but had always been used for agricultural purposes; that by virtue of chapter 1 of the Acts of the…

.Appeal from Adams District Court. — Hon. H. M. Towner, Judge. Creditors’’ bill to subject certain lands, the title to which is in defendant Martha Gadd, to the payment of a Judgment held by plaintiff against Phillip Gadd. The trial court granted the relief prayed, and defendants appeal.—

— Hon. W. I. Smith, «T udge. Action to determine priority of liens on personal property. There was a decree for the plaintiffs. The defendants appeal.

— IIon. Frank W. Eichelbebgee, Judge. 1 Action by the administrator of Daniel Pence, deceased, against J. H. Williams, on a note executed by tbe latter as security with G. W. Randall as principal. Shortly before the trial, by amendment to the petition, Randall was made party defendant, though he was not served with notice, made no defense, and was then a resident of Arkansas. Williams pleaded payment by Randall to an indorsee, J. A; Donover.

— Hon. A. N. Hobson, Judge. Plaintiff sued in equity to enjoin defendant from ■erecting a building upon premises leased by plaintiff to defendant for use as a creamery, and plaintiff asked that a temporary writ of injunction be granted.

.Appeal from Wright■ District Court. — Hon. J. E. Whitaker, Judge. Action upon adjudgment of another state. There was a verdict and a judgment for defendants, and plaintiffs appeal.

— Hon. M. A. Roberts, Judge. Action to recover $300 damages for the wrongful taking and converting of 20 brood sows, the property of the plaintiff, by purchase from Alonzo Cox. Defendants answered, claiming the hogs under a chattel mortgage from Alonzo Cox to Greer, Mills & Co. Verdict and judgment, for plaintiff for $242.16. Defendants appeal.

- — -Hon. George W. Wakeeield, Judge. The petition originally filed in this case asked, briefly, for damages oa account of a breach of warranty in the sale cf merchandise. Later a substituted petition was filed, setting up the cause of action in a more extended form, as follows: [Plaintiff is a corporation engaged in the wholesale grocery business at Sioux City, Iowa. Defendant is a banking corporation whose principal place of business is in San Prancisco, Cal.

'Appeal from Marshall District Court. — Hon. G. W. Burn-ham, Judge. This is an action of replevin brought to recover possession of personal property upon which the plaintiff and the intervener claimed a chattel mortgage lease lien for rent accrued during the years 1893, 1894, and 1895.

— Hon. Gr. W. Wake-field, Judge. The plaintiffs, as owners of lots 3 and 4, bordering the Missouri river, in tbis suit asked that title be quieted in them to a bar or island formed in the river, a part of which was occupied by the defendant. The district court denied the relief, but adjudged them to be owners up to what is called the “Iowa Channel,” the lines to be established by a commissioner. They appeal.

— Hon. Jambs D. Smyth, Judge. Suit iu equity for the partition of real estate. The pleadings put iu issue the legality of au instrument of adoption. The trial court found that defendants Arthur and Lydia Wester beck were and are the legally adopted children of William Saarman, deceased, and established and confirmed their shares in his estate as such. Plaintiffs appeal.

'Appeal from Marshall District Court. — ITon. Obed Caswell, Judge. Plaintiff's demurrer to the defendant’s answer was ■overruled, and from that ruling plaintiff appeals.

— Hon. A. J. House. Judge. Tins is au action in equity brought by two stockholders in a corporation known as the “Green Tree Butter & Cheese Factory,” in behalf of themselves and any other stockholders who may wish to join with them, to recover judgment against several persons, individually named as defendants, who were alleged to have been directors and officers-of said corporation, to recover, in behalf of the corporation, judgment against said individual defendants for…

— Homy A. B. Ti-iornell, Judge. Action to recover tbe value of stock killed at a highway crossing. There was a trial to a jury, and a verdict and judgment 'for the plaintiff. The defendant appeals. — •

— Hon. John T. Soott, Judge. Action at law to recover compensation for services as town marshal. The' trial court sustained a demurrer to the-petition, and plaintiff appeals.

<p>.2 •Check Indorsed to Agent: deduction of agent’s debt: Bights of principal. Plaintiff, having received av check to his order for $150, indorsed it in blank, and delivered it to his father, with instructions to obtain the cash on it, and remit in payment of a debt owed by plaintiff. The father also indorsed the cheek in blank, and presented it to the defendant, the bank on which it was drawn, where there were funds to meet it. Defendant, being without notice that the check did not belong to the father, insisted on deducting an indebtedness of the father from the amount of the check, which the father finally consented to, and received the balance, remitting it as instructed. Held, that plaintiff was entitled to recover the amount so deducted, since defendant parted with nothing on the faith of the check.</p> <p>1 :Review on Appeal: certified questions. Under Code, section 4110, providing that a trial judge may certify that an appeal should be allowed where the amount in issue is less than $100, where the trial judge certifies questions in such case to the supreme court it will not be limited to questions so certified, but may consider any error properly assigned.</p> <p>3 Assignment of errors. Where appellant failed to raise his point by assignment of error, the question will not be considered on appeal.</p>

— Hon. Rice H. Bell, Judge. ■ 1 Plaintiff states his cause of action substantially as follows: That at the instance and request of W. C. Howell,, of the firm of H. Scott Howell & Son, general agents of the defendants, he furnished material and performed labor in repairing the chimneys of the building known as the “Estes House,” which material and labor were of the value of $108.70, no part of which has been paid.