Volume 117 — Iowa Reports

— Hon. P. B. Wolee, Judge. Action at law to recover damages for personal injuries sustained by plaintiff in a collision between trains on defendant’s line of road. From a verdict and judgment for plaintiff, defendant appeals. —

<p>Appeal from Polk District Court. — Hon. O. R. Holmes, Judge.</p> <p>Action against defendant as surety on a bond. Defense that the surety had been discharged by failure to enforce the claim against the principal. Trial to the court without a jury. Judgment for plaintiff. Defendant appeals. —</p>

— Hon. P. W. Eichelberger, Judge. Appeal by defendant from a judgment of conviction upon charge of violating the provisions of section 2382 of • the Code. The facts are stated in the opinion. —

— Hon. J. W. Bollinger, Judge. Action in equity by a trustee in bankruptcy, under the federal statute, to set aside certain conveyances made by a bankrupt to defendant. There was a decree for plaintiff, and defendant appeals. —

— Hon. Clieeord P. Smith, Judge. ■ Egísert E. Hiercks died intestate July 25,1899, leaving, him surviving, as his only heirs, his sons, Theodore and John Hiercks, and a daughter, Antje Stolenburg, and two grandchildren, Oscar and Hora Hiercks, children of a deceased son, Glaus H. Hiercks.

— Hon. W. B. Quarton, Judge. Action on contract to recover a balance due for work and material furnished in the building of a church for the defendant. There was a directed verdict, and a judgment thereon for the defendant. The plaintiff appeals. —

— Hon. S. M. Weaver, Judge. Suit in equity for the specific performance of a contract for the sale of real estate, signed by defendant B. F. Blanchard alone. The trial court rendered a decree for plaintiff, and defendants appeal. —

— Hon. Wm. Hutchinson, Judge. These three cases were tried together in the hnver court. In the first, Oliver and others seek to enjoin further work in constructing a ditch under authority of the board, of supervisors of defendant county, and to cancel and enjoin the collection of assessments on the property of plaintiffs for the construction of said ditch.

— Hon. John F. Oliver, Judge. On the tenth day of March, 1891, after it had been assessed, the south one-half southwest one-fourth of section 12, township 89 range 47, then owned by blie Sioux City Land Company, was platted into 14 blocks, of 30 lots each, with streets and alleys. May 5th following all but 20 of the lots were conveyed to the Leeds Improvement & Land Company. December 5, 1892, the 80-acre tract was sold as such for the taxes of 1891.

— Hon. John T Scott, Judge. This is a remarkable action. John F. Hull contracted a matrimonial alliance with plaintiff upon terms singularly disastrous to him pecuniarily, if he can be held bound by them. He lived with her but for the brief period of one month. Within two months following the separation, this suit was brought. There are four other defendants.

— Hon. J. H. Whitaker, Judge. Suit in equity to set aside a sheriff’s deed and to cancel a judgment. From a decree for plaintiff, defendants appeal. —

— Hon. George W. Wakefield, Judge. Action of replevin to recover the possession of personal property upon which a landlord’s writ of attachment had been levied. Trial to the court, and judgment for the plaintiff. The defendants appeal. —

— Hon. M. J. Wade, Judge. Appeal from a decree of the district court setting aside a deed of real estate. A statement of the facts will be found in the opinion. —

<p>Construction of Policy: interest of mortgagee: Forfeiture t>y foreclosure. An insurance policy provided that it should he void if the property became incumbered, or, with the knowledge of the insured, foreclosure proceedings should be commenced. Foreclosure proceedings were commenced before th© loss to the knowledge of the insured. The policy contained the stipulation: “Loss, if any, payable to S., mortgagee, a» his interest may appear, ’ ’ and the further stipulation that: ‘ ‘ If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, * * * the conditions hereinbefore contained shall apply in the manner expressed in such provisions relating to such interest as shall be written on or attached hereto, ’ ’ but no conditions applicable to the interest of the mortgagee were attached. Held, that this last condition, in connection with the ‘ ‘ loss payable clause, stipulated for indemnity in' favor of mortgagee, and enabled him to recover on' the policy.</p>

<p>Appeal from Polk District Ooiort. — Hon. W. F. Oonrad, Judge.</p> <p>Action to recover for services alleged to have been rendered under contract made with the defendant. Judgment for plaintiff, and defendant appeals. —</p>

— Hon. O. H. Wheeler, Judge. Plaintiee, in this proceeding, seeks to have annulled assessments made upon the moneys and credits of his ward under section 1374, Code 1897, and chapter 50, Acts Twenty-eighth General Assembly. The district court held that the assessments for the years 1896 and 1897 were invalid, and it confirmed the assessments for the years 1898, 1899, 1900. Both parties appeal, but we shall recognize defendant as appellant. —

— Hon. J. R. Whitaker, Judge. Plaintiee, who is the grandchild of one Nancy Jane Hoyt, now deceased, and the defendant, her husband, seeks to recover from defendant, the executor of the will of deceased, the amount of a legacy claimed under such will. Judgment for plaintiff, from which defendant appeals. —

— Hon. Obed Caswell, Judge. Action in equity to foreclose a mechanic’s lien. Judgment for the defendants, from which the plaintiff appeals.—

— Hon. Walter I. Smith, Judge. This is a controversy over a strip of land which at one time constituted the bed of the Missouri river. The trial court found for the plaintiff, and the defendant appeals. The facts will be stated in the body of the opinion. —

— Hon. C. H. Kelly, Judge. Action begun at law upon a promissory note. Defendants admit the execution of the instrument, but allege that it was intended for a receipt only, and not as an evidence of indebtedness, and ask to have it reformed accordingly. Upon trial in the district court, the relief asked for by defendants was granted, and plaintiff appeals.—

— Hon. Walter I. Smith, Judge. This is an action in equity, the purpose of which is to protect the homestead rights of the plaintiffs, who are husband and wife. Henry Ackerman was the owner for many years of the northwest ^ section 27, township 74, range 35, in Oass county. Plaintiffs resided upon the northwest 40 of this tract. In 1898 they executed a mortgage on the quarter section, to secure the sum of $4,000, to the Davenport Savings Bank.

— Hon. E. E. Aylesworth, Judge. Action at law to recover for the use and occupation of certain real estate. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal. —

— Hon. A. W. Wilkinson, Judge. About December 1, 1899, the plaintiff bought the 153-J-acres of land in controversy, and on the seventeenth day of that month entered into a written contract with the defendant, leasing to him said land from January 1, 1890, for five years, at the yearly rental of $241.25, “payments as follows: to pay the interest simultaneously on two certain mortgages, one for $250, one for $1,000, as same matures, the balance on January 1st, of each year up…

— Hon. C. A. Bishop, Judge. Action at law for damages upon a contract for employment of the plaintiff by defendant. Judgment for defendant upon demurrer to petition, and plaintiff appeals.- —

— Hon. W. F. Conrad, Judge. Action of mandamus bo compel defendant, who was secretary of state, to record an amendment to plaintiff’s articles of incorporation, by which the term of its corporate life was extended or renewed. There was a demurrer to the petition, which was sustained, and, plaintiff electing to stand on its pleading, judgment was rendered against it for costs. It appeals. —

<p>Appeal from Dubuque District Court. — Hon. M. 0. Matthews, Judge.</p> <p>Action on account for cigars sold and delivered at. an agreed price. Defendant did not contest the indebtedness, but interposed a counterclaim for damages for breach of a contract by which, as he alleged, plaintiffs had agreed to give him the exclusive right to sell a certain brand of cigars within certain territory. The jury returned a verdict for defendant on his counter claim, and from the judgment thereon plaintiffs appeal.</p>

<p>Appeal from Johnson District Court. — Hon. M. J. Wade, Judge.</p> <p>Action in equity to set aside .and cancel a judgment rendered in the distinct court of Johnson county against the plaintiff at the suit of one Holdeman. Upon trial to the court the relief asked was denied, and plaintiff appeals. —</p>

— Hon. H. M. Remley, Judge. Action, tried as in equity, to recover on a policy of fire insurance. From the judgment rendered, both parties appeal. Defendant will be denominated the “appellant,” having first perfected its appeal. —

<p>Oertiorari Proceedings, Ioioa District Gourt. — Hon. M. J. Wade, Judge.</p> <p>This is a certiorari proceeding to review the action of the defendant while acting as a judge in vacation.</p>

<p>6 Corporations: recovery on note: Debt limit in by-laws. In a suit on a note of a corporation given for an indebtedness for goods previously purchased and received, a contention that, the corporate indebtedness at the time the note was given having exceeded that permitted by its articles of association, recovery could not be had on the note, but that it must be on the original consideration, was of no merit.</p> <p>7 Recovery on note and original debt. Conceding that a provision in the note for compound interest and attorney’s fees was not enforceable, such fact would not affect the recovery of the debt.</p> <p>8 Contract of Extension: Consideration. An agreement between a merchant and his creditor, whereby the merchant is to have an extension of time in which to pay notes, and he is to “make sacrifices” to pay the notes, there being no agreement to pay anything before maturity, or interest for any specified time beyond maturity, is without consideration.</p> <p>1 Denial of Signature: pleading: Corporations. Code, section 3640, declares that when any written instrument is referred to in a pleading, and the instrument or a copy thereof, is incorporated in the pleading, the signature is to be deemed genuine and admitted, unless the person whose signature the same purports to be shall, in a pleading or writing, deny under oath its genuineness. Held, that in a suit against a corporation on a note purporting to be that of the corporation by its president, and incorporated into the complaint, an allegation of a verifled answer to the. effect that the signer had no authority, was a good denial of the signature under the statute, the denial being as specific as the circumstances would permit.</p> <p>2 Verdtioation of pleading: Corporations. Code; section 3640, declares that when any written instrument is referred to in pleaaing, and the instrument, or a copy thereof, is incorporated in the pleading, the signature is to be deemed genuine and admitted, unless the person whose signature the same purports to be shall, in a pleading or writing, deny under oath its genuineness. Section 3581 authorizes a corporation, when a party, to verify a pleading by an agent or officer, and by section 3609 the answers of a corporation to an interrogatory in a pleading may be made by an officer or agent. Held, that where a corporation is sued on a note purporting to be that of the corporation, by its president, and which is incorporated in the complaint, a verification by the corporation’s secretary of an answer denying the genuineness of the signature is sufficient.</p> <p>2 Same. In such a case it is probable that the officer should show knowledge of the facts in order to enable him to deny the signature.</p> <p>2 Review on appeal. Where, in a suit against a corporation on a note purporting to be that of the corporation, and incorporated? in the complaint, the signature is denied under Code, section 3640, providing for a denial under oath, the verification being by defendant’s secretary, and on appeal the abstract states that the answer denying the signature was duly verified, it will be assumed that the answer showed that the officer making it had knowledge of the facts.</p> <p>3 Admissibiiity of denied writing: Foundation. Where, in a suit against a corporation on a note purporting to be that of the corporation, by its president, and incorporated in the complaint, defendant denies, under Code, section 8640, that the president had authority to sign, the note is not admissible in evidence until the authority is shown; and while it was not vital that proof of authority should preceue the admission of the notes, their admission was prejudicial where authority was never shown.</p> <p>4 Same. In an action against a corporation on a note purporting to be that of the corporation, signed by its president, and incorporated in the complaint, the defendant denied, under Code, section 3640, that the president had authority to sign. The note' was admitted in evidence, no authority having been shown, and plaintiff, on offering certain evidence, stated it was to show authority, whereupon counsel for defendant answered that it would introduce no evidence; that counsel had made their objections, which had been overruled, and the proposed testimony would not be material. Held, that the statement of counsel contained no admission as to the president’s authority.</p> <p>5 7 Appeal: stricken .pleadings’ Evidence. When a demurrer to a part of the answer is sustained, and defendant stands on the' ruling, and neither such pleading nor an affidavit for change of venue is introduced in evidence, declarations in the demurrer and affidavit cannot be considered, they not being a part of the pleadings on which the case is tried.</p>

<p>2 Statutes: Curative acts. The legislature has power to legalize’ a void. act.</p> <p>1 S Same: Highways: The legislature has power to authorize the establishment of a highway by giving general notice to owners of land concerned as “To whom it may concern’’, and need not require the owners to be named, and accordinly it may legalize the establishment of a highway where only a general notice has been given, though, under the original act, as construed by the courts, the owners were required to be named.</p> <p>4 Same. An objection that the legislature could not legalize irregular proceedings of a board of supervisors establishing a highway, because such action on its part would be local legislation, was bad.</p>

— Hon.. Frank W. Eichelberger, Judge. Plaintiee brought this action, as guardian of one William Turnbull, to set. aside a conveyance to his son Thomas Turnbull, on the ground that at the time of the execution of the conveyance said William Turnbull was of unsound mind. Before the trial of the case in the lower court, Wil-. liam Turnbull died, and plaintiff was appointed admin irbrator of Ms estate, and as such prosecuted the action to judgment.

— Hon. Walter I. Smith, Judge, The plaintiff was the owner of a farm which she listed for sale with the firm of Daj^ & Hess, real estate agents of Council Bluffs. Oollins & Childs was another firm of real estate agents of the same city. Day told Oollins & Childs that his firm had the Bellinger land for sale, and I Oollins & Childs said they would try to find a- customer for it.

<p>1 Continuances: sufficiency of motion: Sickness of party. An affidavit in support of a motion for a continuance on the ground of the sickness of the movant, stating merely that he was unable to attend the trial, but not showing that he intended to be a witness, or that his presence was otherwise necessary, was insufficient to justify the court in granting a continuance.</p> <p>2 Absence of witness. Abuse of Discretion. An affidavit in support of a motion for a continuance on the ground of absence of a witness stated that affiant believed the witness to be a resident of Iowa until a few days before the date of the trial, but had been recently informed that he lived in Arkansas; that affiant did not know what witness would testify to until ten or twelve days before, and, on learning, began searching for the witness and that the witness or his deposition would be produced at the next term of court. The former residence of the witness was not given, and it was not .shown when he moved away, or what justified the belief that he was a resident of the state when the action was commenced. Code, section 3664, requires a statement of efforts constituting due diligence which have been used to obtain the witness or his testimony. Held, that there being no showing of diligence in discovering the evidence as required by section 3664, the facts stated did not show a right to a continuance so clearly as to render the denial of the motion an abuse of discretion.</p>

— Hon. C. P. Holmes, Judge. Both parties hereto are corporations. Plaintiff is engaged in manufacturing, and employs labor, and defendant’s business is that of insuring employers against loss on account of personal injuries suffered by their employes, in the line of duty. Plaintiff had a policy with de1 fendant in which it was insured to_ the amount of $1,500 in .case of injury to any one employe.

— Hon. W. E. Green, Judge. Action at law to recover an amount alleged to be due and payable upon certain certificates of stock in the defendant association. Judgment for plaintiff, and defendant appeals.

— Hon. Z. A. Church, Judge. Action to recover possession of a 40-acre tract of land. Defendant Stuart, by cross petition, asked to have his title to the premises quieted. Judgment and decree for defendants. Plaintiff appeals. —

<p>1 2 Action for False Representation: reliance. Plaintiff was guarantor for defendant’s agent, and paid defendant a sum in settlement of an alleged shortage of the agent, but afterwards sued to recover the amount so paid, on the ground that the payment was induced by defendant’s false and fraudulent representations as to the nature of the agent’s shortage. Held, that a refusal to instruct that, if plaintiff at the time of the settlement had knowledge that defendant’s representations were false, he could not recover, was proper, since such instruction assumed that plaintiff 'could not recover if he had been told by the agent prior to the settlement that defendant’s claim was unfounded, while plaintiff was in fact entitled to recover if he believed defendant’s misstatements at the time of settlement, though he had been told that they were untrue.</p> <p>1 3 Guaranty for Agent: SCOPE op. Plaintiff was guarantor to defendant for its agent, and paid an alleged shortage in defendant’s bank account, as carried by the agent. Defendant was a guarantor to the bank of the agent’s personal account, while plaintiff’s liability extended only to the agent’s direct relations with defendant. The agent carried a bank account which represented all the money paid in and checked out on defendant’s account. Held, that a shortage in this account, occasioned by the agent’s using a part’of it to pay for a purchase of grain for defendant falsely reported as paid for, was a shortage in the agent’s account with defendant, and not in his personal account with the bank, for which plaintiff was liable to defendant, instead of defendant’s being liable to the bank.</p>

— Hon. W. Gr. Clements, Judge. Defendant was accused and convicted of tbe crime of murder in tbe first degree. In substance, the indictment charges that she willfully administered strychnine poison to her husband, Charles Kuhn, from the effects of which he died on the 4th day of September of the year 1900. From a judgment of life imprisonment in the penitentiary, defendant appeals. —

— Hon. Obed Gas-well, Judge. Action at law for the recovery of hydrant rentals. From a verdict and judgment for plaintiff, defendant appeals. —

<p>1 2 Guarranty Against Default of Principal: injury from lack of notice of default: Jury question. Defendant contracted that his principal would procure title to certain land within six months, and convey it as security for a note, or that he would pay the note himself. His principal did acquire the title about two years thereafter, held it for a short time, and then mortgaged it to another, and it was lost under the mortgage.' In an action against defendant he testified that, if he had known when his principal acquired the title, he could have gotten a conveyance from him. There was no evidence that the principal was insolvent. A prior suit had been brought against defendant on the same argeement some years before, and from that time he knew his principal’s default. ■ Held insufficient evidence of injury to defendant from want of notice of his principal’s default, and etc., to go to the jury.</p> <p>3 Pruvia facie Case. In an action against the guarantor of a note, production of the note, showing no credits, and of the agreement of guaranty by plaintiff, to whom they had been assigned made a prima facie case.</p> <p>4 Laches. Action against a guarantor, commenced in 1897, before tlie running of limitations, was not barred by laches though default by the principal had been made in 1890, where it appeared that a prior action had been commenced against defendant in 1893 or 1894, which he caused to be dismissed by demanding a cost bond.</p>

— Hon. Walter I. Smith, Judge. Action to recover damages for personal injury alleged to have been received by plaintiff while on an electric car operated by defendant company, by reason of the negligence of the employes of said company in carelessly causing the electric car to be started forward suddenly, by reason of which plaintiff was thrown violently against the railing and steps of said car.

— Hon. Frank W*. Eichelberger, Judge. The applicant was granted a permit to sell intoxicating liquors for pharmaceutical and other purposes. Remonstrants appeal. —

— Hon. S. F. Prouty, Judge. Action to recover possession of land occupied by the defendant’s railroad track.

— Hon. W. B. Qiiarton, Judge. Appeal from the modification of a decree entered by the trial court. The facts will appear in the body of the opinion.

— Hon. T. M. Fee, Judge. Action in equity for specific, performance of a contract to convey real estate. By an amendment to the petition, plaintiff asks that he may have a judgment for damages if the court finds defendants are unable to make conveyance. The defenses will be stated in the opinion.

— Hon. Geo. W. Wakeeield, Judge. Action for the reasonable value of services in drilling for a well. Plaintiffs appeal from judgment against them.

— Hon. S. M. Elwood, Judge. This is an appeal from a condemnation proceeding in which plaintiff was awarded damages in the district court in the sum of $290. The sheriff’s jury awarded him $300, and he appeals from the judgment of the district court.—

— Hon. Wm. G-. Thompson, Judge. Action in equity to enjoin defendant city from opening a street through plaintiff’s land. From a decree in plaintiff’s favor, defendant appeals. —

— Hon. W. N. Tkeichler, Judge. The plaintiff sued for a divorce on the ground of the adultry of the defendant. She filed a cross bill, asking a divorce on the ground of cruel treatment. She was granted a decree, and the plaintiff’s case was dismissed, but he was awarded $1,500, alimony, from which award the defendant appeals. —

— Hon. J. D. Gamble, Judge. This case was tried to the court below on an agreed statement of facts, which is substantially as follows: James H. Gudgel was the owner of certain farm lands, which he deeded to these defendants in severalty, with the following reservations in the deeds: “I hereby expressly reserve the possession, use, rents, and profits of said property during my life time.” In March, 1899, he leased the land to various parties for the term of one year, ending…

— Hon. 8. M. Weaver Judge., Dependants were convicted of the crime of defrauding by the use of false weights, as described in Oode, section 5044, and appeal from the judgment against them.—

— Hon. Henry Bank, Jr., Judge. This is an action in equity seeking to enjoin the defendant Kiel, who is the treasurer of Lee county, from issuing a tax deed to his co-defendant, Robertson, on three lots in the city of Keokuk. From a decree in plaintiff’s favor, defendants appeal. —

Ajypeal from Calhoun District Court. — Hon. S. W. Elwood, Judge. Suit in equity to recover, for school supplies furnished the defendant corporation. The trial court dismissed the petition, and plaintiff appeals. —

— Hon. O. P. Hodmes, Judge. Action at law on a bond on wbicb defendant was surety. Defendant, in answer, pleaded that it was released because plaintiff failed to preserve a lien or claim held by Mm against a certain fund due from the city of Des Moines to the principal on the bond. Judgment was rendered for plaintiff, and defendant appeals. —

<p>.Proceedings in eertiorari. —</p>

<p>1 Review on Appeal: Ruling on several grounds of motion. A motion for a new trial was based on 13 separate grounds, and sustained by the court with the remark that, ‘ ‘ Of the grounds alleged for a new trial, I consider none of serious importance except the one numbered 13”. Held, that this statement was not sufficient to constitute an overruling of the motion on the other ground, and hence that case was not brought within the rule that, where a motion is sustained on some of its grounds, and expressly overruled as to others, consideration on appeal will be limited to the order sustaining it, on the ground on which it was sustained.</p> <p>il Argument. Where only one of several grounds upon which a motion for new trial is based is argued by appelant on an appeal from an order sustaining the motion, the court will not pass on the propriety of the order appealed from.</p> <p>Weaver, J. took no part.</p>

<p>3 Plea and Charge: submission on case not plead: Waiver by failure to object. Error in submitting a oase to the jury on the theory that it was for money had and received, and not for a tort, as set up in the petition is waived where a case for money had and received would be good if made out, and plaintiff makes out such a case, and defendants permit it to go to the jury without objection.</p> <p>5 Instructions. A charge that there might be a recovery of one defendant if she had sufficient mental capacity fo make a settlement, and another that other things were essential to be found to make her husband and codefendant liable, are not in conflict, and will not be condemned without suggestion as to which, if either is incorrect.</p> <p>3 Exceptions to charge. Instructions need not be excepted to when given, but it is sufficient, under the ’ express provisions of Oode, section 3709, if the exceptions are taken in the motion for a new trial.</p> <p>1 Assignment of Errors: Motion having several grounds. A general assignment of error in overruling motion for new trial, which sets up 15 distinct grounds, will not be considered.</p> <p>1 Same.- Conflicting instructions. An assignment of error which contrasts certain paragraphs of the court’s charge, claimed to be conflicting is not objectionable as grouping instructions to all of which objection is taken.</p>

— Hon. W. N. Treichler, Judge. Action at law to recover damages resulting from a fire set out by defendant’s locomotive. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.—

<p>Appeal from Polk District Court. — Hon. S. F. Prouty* Judge.</p> <p>Action for libel. Verdict and judgment for plaintiff* and defendants appeal. —</p>

<p>.5 Contracts: estoppel to object to enforcement. 'Where a county owning city property and the city do not not object to a paving contract as invalid in containing a provision requiring the contractor to employ laborers residng in the city, and they receive the benefit of the work, they will not be heard to raise snch objection in an action by the contractor to enforce a paving certificate against the county. ■></p> <p>8 Assessment on Abutting Property: Sufficiency. A record of a resolution of a city council, levying a special assessment, and-specifically adopting a plat by the city engineer of the property affected by the improvement, and directing that a special assessment be levied in accordance therewith, is sufficient to show an assessment against an abutting property owner, as shown by the plat, though the name of such owner is omitted in the record of the resolution from the names of the parties assessed.</p> <p>4 Same. Evidence in an action on a special assessment tax certificate, showing an assessment against a property owner, is sufficient to sustain the action, though the recorded resolution of the city council levying such assessment does not show an assessment against the property owner.</p> <p>6 Exemption from. The act of a city in encroaching on grounds dedicated to a county as a public square by using a strip on each side thereof as a portion of the streets, and in afterwards obtaining a decree restraining the county from interferring with such possession, does not operate to prevent the county from being an abutting owner, and therefore does not relieve it from an assessment against abutting owners for street improvements.</p> <p>7 County Property. McClain1 s Code, section 1271, provides that property of the county, devoted entirely to the public use, and not held for’ pecuniary profit, shall be exempt from taxation. Section 1274 provides that all property except that exempted shall be subject to taxation. Section 630 authorizes cities to pave and otherwise improve streets and levy special assessments therefor on abutting property. ^PCeld, that city property owned and used for public purposes by a county was not exempt from special assessments for street improvements.</p> <p>8 Costs — Penalty and interest. ' The plaintiff in an action against a county on a special tax certificate for a special assessment against its property, which it has refused to pay, is only entitled to cost and six per cent, interest, as provided in acts 21st General Assembly, chapter 168, section 12, and not to ten per cent, interest and five per cent, penalty, provided in Code 1873, section 479.</p> <p>1 Dedication to County: sufficiency. Where a plat of land for a town was made under the direction 'of the county commissioners, and they afterwards obtained a government patent for land, and the plat showed a tract marked as a public square, which tract was intended to be dedicted to the county, and which was afterwards used by it, there was a sufficient dedication thereof to the county.</p> <p>'2 Dedicatory intent: Parol admissible. Where an instrument, claimed to be the dedication of land to a county does not specifically show an intent to make such dedication, such intent may be shown by parol evidence.</p>

— Hon. S. M. Elwood, Judge. One Richard Olive died in Greene county in the year 1891, leaving a will, the material provisions of which are as follows: “I give, devise, and bequeath to iny executors hereinafter named, in trust, however, only to and for the uses and purpose hereinafter mentioned; and for the purpose of facilitating the winding up and settlement of my estate, and promoting the interest of my devisees, I do hereby fully empower and authorize my said executors,…

<p>1 Breach of Contract to Clear Encumbrance: failure to award nominal damages : Review on appeal. In action against a bank, plaintiff claimed that the bank, having a second mortgage on his property, agreed to release the incumbrance to permit plaintiff to sell or exchange the property; that he had an opportunity to dispose of the property, but the bank would not do as agreed. Held that, on appeal, there being no satisfactory evidence as to the value of the property, failure to award nominal damages was not ground for reversal.</p> <p>a Pleading: failure to deny amendment: When not admission. Where, in an action against a bank for an accounting, an amendment to the petition setting up several” claimed credits was filed after the testimony was in, merely to correct a variance between the proof and petition, it was propo*- not to regard a failure to respond to the amendment as an admission.</p>

— Hon. Olifeord P. Smith, Judge. The defendant, as sheriff, levied an execution on the plaintiff’s bicycle which the latter replevied as exempt. A demurrer to his petition was sustained, and he appeals.

— Hon. 0. A. Bishop, , Judge. Action in equity to subject certain real estate to the lien of a judgment. From a decree in defendant’s favor, plaintiff appeals. —

— Hon. T. M. Giberson, Judge.' Action at law upon a policy of insurance issued by defendant company upon the life of one Otis S. Hogg. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. —

— Hon. Geo. W. Burn-ham, Judge. Action at law against defendants as sureties upon the bond of G. A. Miller & Sons. Verdict and judgment for defendants, and plaintiff appeals.

— Hon. -W¡ G. Clements, Judge. In this proceeding the will of J. W. Trotter is contested. At the close of the testimony for contestants the ■court directed a verdict sustaining the will, which was returned, and contestants appeal. —

— Hon. S. M. Elwood, Judge. The plaintiff first sued defendant for an accounting of partnership transaction in the operation of the latter’s farm, and afterwards began an action at law for the recovery of items independent of such partnership. Issues were joined, and in the law action defendant, by way of counter claim, demanded judgment for the amount due on three notes. By agreement the suits were consolidated, and trial had as in equity.

— Hon. W. N. Treichler, Judge. The plaintiff recovered judgment against defendant and Osborne Bros, for $82,046.64 in December, 1886. This was based on a note and an open account. Execution issued in January, 1897, and the sheriff sold several tracts-of land belonging to the defendant.

— Hon. Wm. G. Thomson, Judge. Action to recover damages for personal injuries and the loss of a horse, alleged to have been due to the negligence of defendant’s motorman. in operating a street car. Verdict for plaintiff for $8,300. On motion for new trial, the court gave the plaintiff the option of accepting a judgment for $4,500 or a new trial, and, plaintiff' having elected to accept the reduction, judgment was rendered for that amount, from which defendant appeals. —

— Hon. O. P. Homes, Judge. Plaintiee, as administrator of the estate of one Charles Downs, -deceased, sues to recover damages caused to the estate by the death of Downs, resulting from an electric shock received from defendant’s wires by reason of the negligence of defendant, and without negligence on the part of deceased.

— Hon. F. K. Gay-nor, Judge. The defendant was accused in tbe indictment of perjury, it being alleged therein that on or about the 14th day of June, in the year of our Lord 1901, in the county of Woodbury and state of Iowa, in a criminal proceeding entitled “The State of Iowa vs. Fred Perry,” the said Fred Perry was charged and accused, on preliminary information, of the .crime of indecent exposure of his person; that the said criminal proceeding was then and there pending…

— Hon. Jas. D. Gam ble, Judge. The defendant was convicted of the crime of using his dwelling house for the purpose of prostitution and lewdness, and appeals. —

<p>Appeal from Appanoose District Court. — Hors. M. A. Roberts, Judge.</p> <p>The facts are sufficiently stated in the opinion.—</p>

<p>Appeal from, Keokuk District Court. — Hon. W. G. Clements, Judge.</p> <p>■ The defendant was convicted óf the crime of seduction. From a judgment following such conviction, he appeals.—</p>

<p>Appeal from Buena Vista District Court. — Hon. W. B. Quakton, Judge.</p> <p>The defendant was accused of having committed rape, and from judgment of conviction appeals. —</p>

— Hon. F. R. Gay-nor, Judge. Action to recover rent alleged to be due under a lease,» and to enforce a landlord’s lien therefor against the L, Humbert Company. One Flynn, as trustee in bankruptcy of defendant company, sought to controvert plaintiff’s right to a lien, and judgment was rendered for plaintiff' establishing its lien as to a portion of the land claimed,, from which judgment plaintiff and Flynn, trustee, prosecute separate appeals.

— Hon. H. M. Towner, Judge: On the 18th day of January, 1898, J. T. McFee, who was at the time in financial distress, and indebted to various parties, — the plaintiff’s and. the bank represented by them being among his creditors, — executed and delivered to M. F. McEniry, who was one of his creditors, a 1 warranty deed of the land involved in this controversy.

— Hon. George W* Wakefield, Judge. Defendant was indicted, tried, and convicted of forgery, and from the judgment and sentence imposed appeals. —

— Hon. A. R., Dewey, Judge. Plaintiees brought this action in equity to foreclose at mechanic’s lien. In their petition they claim to have sold, to the defendant, F. H. Reed, materials for the erection of a certain building, and that a statement and claim for lien was filed as provided by law. The allegation is also made-that, subsequent thereto, F. H. Reed sold and transferred the property covered by the lien to his codefendant, W. A-Reed.

— Hon. J.-F. Clyde, Judge. Action to recover possession of a certain promissory-note executed by plaintiff to defendant. It is -alleged in the petition that the indebtedness, as evidence 'of which the note was given, had been fully paid; that notwithstanding such fact, the defendant bank refused to surrender possession of the note on demand. The bank admitted the . execution and its possession' of the note, but denied payment of the same.

<p>Appeal from Boone District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action for price of drilling well. Judgment for plaintiffs. The defendant appeals. —</p>

— Hon. H. M. Towner, Judge. Action for money had and received. After the evidence had been introduced, the court directed a verdict for the amount in the hands of the garnishee belonging to defendant, who was a nonresident. From judgment on this verdict, it appeals. —

— Hon. M. J. Wade, Judge. Action to recover inheritance tax. Demurrer to petition overruled, and judgment for plaintiff, from which defendant appeals. —

<p>Appeal from Tama District Court. — Hon. G. W. Burnham, Judge.</p> <p>Indictment charging defendant with the commission of a nuisance. Yerdict of guilty. Judgment on verdict,' and defendant appeals. —</p>

— Hon. H. M. Towner, Judge. Action at law to recover damages for injuries sustained by plaintiff while passing along and over one of the defendant's sidewalks. The trial court directed a verdict for defendant, and plaintiff appeals. —

— Hon. W. N. Tbbichler, Judge. Action upon a promissory note. There was a trial to a jury, and verdict and judgment in favor of plaintiff against both defendants. The defendant Henry Clark alone appeals. —

— Hon. S. M. Elwood,. Judge. Action to establish a claim against an estate. The executors appeal from an order granting the relief prayed.

— Hon. F. 0. Platt, Judge. Action to recover damages to plaintiff’s property from ■flooding by water which was backed up in a stream by reason of the insufficiency of a culvert built by defendant over the stream in the construction of its railroad. Yerdict and judgment for plaintiff. Defendant appeals. —

<p>Action of certiorari to review certain proceedings wherein plaintiffs were adjudged guilty of contempt.—</p>

<p>Appeal from Black Hawk District Gourt. — Hon. A. S. Blair, Judge. . •</p> <p>The opinion states the case. —</p>

— Hon. W. N. Treichler, Judge. Action at law on an oral contract of indemnity. . Trial to a jury and’ verdict and judgment for the plaintiff. The defendant appeals. —

— 'Hon. J. H. Apple-gate, Judge. Action to quiet title. Plaintiff, who is a minor, suing by his father,- James 0. Daily, as his next friend, brings this action to quiet title to 40 acres of land, against the defendants, who are the heirs at law of John Cochrane, deceased, who during his lifetime was the owner of the land.

— Hon. F. 0. Platt, Judge. Plaintiee abandoned his claim as owner of the real estate, and the only issues heard related- to the accounting asked by defendant. The referee recommended judgment against plaintiff for $146.65. Two exceptions to his report were sustained by the district court, and judgment entered against defendant for $401.83. The defendant appeals.—

<p>2 Partnership: May be formed out of two partnerships. Two partnerships may form a new partnership.</p> <p>I 3 Proof of uuegauty : Burden. ' Code, section 5060, provides that any partnership or individual creating any trust, pool, or combination with any other corporation, partnership, etc., to regulate or fix the price of any article of merchandise or commodity, shall be guilty of a conspiracy. Held, that where, in a suit for a partnership accounting, defendants claim the contract of partnership illegal under the statute, but it is not so on its face, the burden is on defendants to show the alleged illegality.</p> <p>Same. A firm contracted with another firm, whereby all corn and oats purchased at a certain place should be on joint account and in a suit by the members of the first firm against the other for a partnership accounting, the defense was that the contract was illegal, under Code, section 5060, as one to stifle competition. One of the defendants testified that he so understood the contract, but plaintiffs denied that they had such understanding, and it was not shown that such' defendant communicated his understanding. It appeared that the parties had not always paid the same price for grain, and had at times been competitors, and that one of the defendants was the father-in-law of one of the plaintiffs, and, knowing the son-in-law’s firm was of limited means, proposed the agreement. Held, that the evidence did not show a contract illegal under the statute.</p> <p>4 Accounting: Books as evidence. In a suit for a partnership accounting, a book kept by plaintiff showing purchases by him under the partnership contract was not admissible in the absence of identification and proof of its genuineness.</p> <p>4 Same. In a suit for a partnership accounting, statements from a book kept by plaintiff showing purchases by him under the partnership agreement were not admissible where the book was not in evidence.</p>

<p>4 Killing Cattle: evidence: Height of right-of-way fence. In an action against a railroad for the killing of cattle, evidence as to the height of the right of way fence between the time of the killing and a subsequent date was proper; it appearing that there had been no change in the height.</p> <p>4 Instruction construed : Duty to fence and damages. In an action against a railroad for the killing of a horse, the court, charged as to what constituted a proper right of way fence under the statute, and, in stating the issues, mentioned the allegation of a failure to maintain a legal fence, and the claim that the horse was killed 11 while running at large by reason of the want of such fence.” The evidence as to the condi - tion of the fence, and whether there was an open gate, was in conflict. Held, that a contention that the -jury might have believed defendant liable for mere failure to maintain a "fence was without merit, as, in view of the evidence and statements of the court, they must have known recovery depended upon the horse having reached the track because of failure to fence as required.</p> <p>1 2 Right to Way: recognition. The acceptance of a deed which in terms reserves to the grantor a' private way is a recognition of the way.</p> <p>Tenant has right to way: Damages for obstruction. The owner of a tract of land conveyed a portion thereof, reserving a private way for cattle. Subsequently the grantee obstructed the way, and, in an action by the lessee of the balance of the tract for damages from the obstruction, defendant contended that, as the lessee was only a tenant for years he could not avail himself of the reservation. Held, that the tenancy gave the lessee a right to the way, and the covenant in the deed as to the reservation did not affect the case.</p> <p>3 Statute remedy for obstruction is available to him. Under Oode, sections 5078, 5081, imposing a penalty for the obstruction of a way, a lessee of land may proceed under the statute for an obstruction of a way appurtenant to the land, though the obstruction was placed there before his term commenced.</p>

<p>Appeal from Fremont District Court. — Hon. W. E. Green,. Judge.</p> <p>Dependant was convicted under an indictment for bigamy, and appeals —</p>

— Hon. Geo. W. Wakefield, Judge. Suit in equity to enjoin defendant from using a counterfeit. label on cigars sold by it. Decree for plaintiff, and defendant appeals. —

<p>1 Taxation: railroad grant lands: Unpatented. Act Congress, May 12th, 1864, granted lands to Iowa to aid in construction oí a railroad. Acts 20th General Assembly, chapter 28, provides that lands granted by the general government to any railroad, or to the state, and by it granted to any railroad, shall be subject to taxation after the year when earned. Held, that lands within the indemnity limits of the grant, on selection and confirmation by the secretary of the interior, were subject to tax, though not patented.</p> <p>1 8 Same. The lands were taxable under Acts 20th General Assembly, chapter 28, notwithstanding there had been no patent, and the equitable title was in the railroad and the legal in the government.</p> <p>2 Tax deed: As evidence. Code, section 1444, provides that a tax deed shall be evidence that the property was subject to the tax. Held, that a tax deed within a grant to a railroad was evidence of an earning of the lands.</p> <p>5 Act of congress construed. Act Congress May 12, 1864, granted land to the state of Iowa to aid in construction of a railroad. Section 4 provided that, whenever the governor certified the completion of 10 miles of road, patents should be issued, and provided that the lands should not be disposed of nor incumbered save as the same were patented. Acts 20th General Assembly, chapter 28, provided that lands granted by the general government to a railroad, or to tlie state for a railroad, should be subject to taxation when earned. Held, that the act of congress did not mean that the lands could not be patented, but merely prohibited any disposition inconsistent with the grant.</p> <p>1 Not contrary to act admitting Iowa. The taxation was not contrary to the ordinance admitting Iowa to the Union.</p>

<p>2 Nomination Papers: what mat constitute riling. Under Code, section 1104, requiring certificates of nomination for county offices to be filed with the county auditor not less than 20 days before election, the presentation of a certificate to the auditor is tantamount to a filing, though the auditor does not mark it as filed.</p> <p>1 3 Filling vacancies in nominations : Power of auditor. Code, section 1104, requires certificates of nomination for county offices to be filed with the county auditor not less than 20 days before election. Section 1102 provides that, if a certificate is held insufficient by the officer with whom it is filed, vacancies may be filled, etc. Held that, where the auditor determines a certificate not filed in time, the vacancies may be filled under the statute.</p>

— Hon. M. J. Wade, Judge. Action to recover damages for an assault and battery. Trial to a jury, and verdict and judgment for the defendant, The plaintiff appeals. —

— Hon Frank W. Eiohelberger, Judge. Judgment was obtained by defendant, as administrator of the estate of Eliza Walker, against the plaintiff, for $2,556.82 and costs, December 3, 1896, on a promissory note executed to deceased April 15, 1893. Execution issued, and the lots in controversy, occupied by plaintiff since 1888, were sold by the sheriff. The plaintiff asks that the sale be set aside, and the title quieted in him.

— Hon. Fred O’Donnell, Judge. Action in equity to enjoin the obstruction of an alleged private way. Decree for plaintiff, and defendants appeal.

<p>Appeal from Wright District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action at law to recover damages for personal injuries received by plaintiff while passing along and over a street in the defendant city. Trial to a jury, verdict a,nd judgment for plaintiff, and defendant appeals. —</p>

— Hon. W. F. Bran-nan, Judge. The parties live in Illinois, and were married November 20, 1888. They have never lived together, their only son being born January 8, 1889. The defendant obtained a decree of divorce regular on its face in Clinton county, this state, April 12,1892, and this action to set it aside was begun November 11, 1899, shortly after his marriage to another woman. The plaintiff’s petition was dismissed, and she appeals.

— Hon. M. 0. Matthews, Judge. Action to recover for price of certain stock. The defendant appeals from a judgment entered against him.—

<p>Street Improvement: grading: Ordinance necessary. Code, 1873, section 465, authorized cities to provide for the grading of streets and alleys, and contained a provision that “no street shall be graded except the same be ordered to be done by the affirmative vote of two-thirds of the city council or trustees. ’ ’ Code, 1897, section 683, declares that no resolution or ordinance for any of the purposes therein set out shall be adopted without the consent of a majority of the whole council; and section 684, relating to ordinances affecting the improvements of streets, declares that no resolution or ordinance for such purpose shall be adopted without the concurrence of two-thirds of the city council; and section 680 provides that municipal corporations .shall have the power to make ordinances to carry into effect their powers, etc. Held, that the fact that the Code of 1897 did not contain the quoted portion of section 165 of the Code of 1873 did not authorize an incorporated town to improve a street without an ordinance or resolution providing therefor.</p>

<p>4 Damages for Selling Liquor: le&ality of sale: Burden of proof. In an action for injury to plaintiff’s means of support by the alleged unlawful sale of liquor, the burden was on defendant to show that the sales were lawful.</p> <p>6 Proximate cause of injury: Jury question. In an action for loss of support incident to the death of plaintiff’s son, alleged to have been caused by defendant’s illegal sale of liquor to the son, plaintiff alleged that the son’s death was caused by his being so intoxicate 1 as to allow the horse he was driving to bring the buggy into collision with a telephone pole near the road. Defendant alleged that the negligence of the telephone company was the cause of the death. Held, that the question of what was the proximate cause of the injury was for the jury.</p> <p>1 2 Amendment During Trial: discretion. The allowance of amendments at almost any stage of trial being the rule, permitting plaintiff to amend, even after he has rested, and defendant moved to dismiss, is not unwarranted exercise of discretion.</p> <p>3 Waiver of objection to. Where plaintiff was allowed to amend and introduce evidence after he had rested and defendant moved to dismiss, but defendant declined to avail himself of the option of taking a continuance at plaintiff’s cost, defendant was not thereafter in a position to claim that the ruling was prejudicial to him.</p> <p>7 ■Review on Appeal: unargued assignments: Errors assigned, but not argued by counsel, will not be considered on appeal.</p> <p>5 Failure to except. Where no exceptions are preserved to rulings permitting an amendment and overruling a demurrer thereto, alleged errors in such rulings cannot be considered on appeal.</p>

— Hon. S. M. Elwood, Judge. Action to recover damages for speaking words with reference to plaintiff indicating that she was guilty of acts of unchastity. Verdict and judgment for plaintiff for $1,200. Defendant appeals. —

— Hon. J. K.. Whitaker, Judge. Suit in equity to enjoin defendants, who are plaintiff’s tenants, from removing property from the leased premises. A temporary writ of injunction was granted as prayed.

<p>Appeal from Polk District Court. — Hon. 0. P. Holmes, > Judge.</p> <p>Action in replevin for a stock of merchandise. Verdict and judgment for plaintiff, and defendant appeals.—</p>

<p>Appeal from Linn District Court. — Hon. Wm. G. Thompson, Judge.</p> <p>Prosecution for the crime of rape. Verdict of guilty. From judgment thereon, defendant appeals. —</p>

<p>2 Negligence of Engineer: Verdict sustained. In an action for the death of one killed by a train while walking on a railroad bridge, evidence held sufficient to warrant a finding that the engineer saw deceased in time to have- stopped the train and avoid the accident.</p> <p>3 Duty to see and seeing. In an action for the death of one killed by a train while walking on a railroad bridge, that the engineer ought to have seen deceased, but did not, did not amount to negligence.</p> <p>1 Erroneous special finding of negligence of fireman : Held harmless error. Plaintiff’s inteat ite was walking on a railroad bridge, when he was struck by a train and killed, and in an action for the death there was nothing to show that the fireman was looking ahead previous to the collision, or that he had seen the deceased before he was struck. But the jury found that the fireman knew that deceased “was on the bridge in time to give some warning and to have the engine stopped before injuring him.” Held, that, as the jury had found the engineer negligent, a verdict for plaintiff would not be disturbed on appeal because of the finding as to the fireman.</p> <p>4 Same. In an action for the death of one killed by a train while walking on a railroad bridge, if it were prror to instruct as to whether the employees of the defendant were negligent in failing to give signals, the same was harmless; the jury having found the engineer negligent in not stopping the train.</p>

— Hon. S. M. Weaver, Judge. On the 31st of August, 1898, Mrs. A. W. Hively was on her way with a neighbor (Mrs. Newson) to visit a brother. They sat with their babies in the back seat of a platform spring wagon, while her son Willie, 12 years old, occupied the front seat and drove the team. With him sat John Hively, a child of 4 years.

— Hon. L. E. Eel-lows, Judge. Action on a judgment recovered by default in the circuit court of South Dakota in and for Brule county. Defendant demurred on the ground that the summons in the action on which the judgment was recovered was not sufficient to give the court jurisdiction. The trial court sustained this demurrer, and, on plaintiff’s election to stand on his petition, rendered judgment for defendant, from which plaintiff appeals. —

<p>Appeal from Emmet District Court. — Hon. W. B. Quarton, Judge.</p> <p>Action in equity to enjoin and abate a liquor nuisance. A demurrer to the answer was overruled, and the case tried on stipulated facts. Judgment for defendants. The plaintiff appeals. —</p>

— Hon. C. H. Kelley, Judge. Suit in equity to enjoin defendants' from opening an alley in defendant town, which plaintiff has improved, used, and occupied for many years. The defendants claim that plaintiff was unlawfully obstructing the same, and that it was their duty to open and improve it for the benefit of the public. The case was tried to the court, resulting in a decree dismissing plaintiff’s petition, and she appeals.

— Hon. A. J. House, Judge. This action was brought to recover a balance Sue from the defendant for paving done for it under contract. The defendant admitted that the work was done as alleged, and that the amount claimed therefor was unpaid, and pleaded, as an offset to the amount due, damages for the failure of the plaintiff’s assignors to do other paving for it according to the terms of another written contract.

<p>1 Sureties: signing bond negligently: False representations. The fact that sureties sign a bond without reading it, though they have opportunity to do so, in reliance on • false representations of the principal obligee that it is only a recommendation of the latter,, does not relieve from liability thereon.</p> <p>3 Bond ''with penalty leet blank. Where a bond of an agent to his principal does not contain a general provision to answer for the default of the agency, and a provision creating a specific liability in case’ of such default is defective in leaving the amount blank, the sureties are not liable thereon.</p> <p>.3 ’Obligee may not fill blanh. Where sureties on the bond of an agent to his principal sign the bond without reading it, and in relianee on false representations of the agent that it is only a recommendation, and the bond is defective in'.leaving the penalty blank, its delivery does not authorize the principal to fill in the penalty as against such sureties, and they, are not liable thereon. ,</p>

<p>Appeal from Polk District Court. — Hon. 0. A. Bishop, Judge.</p> <p>Action in equity to declare void certain contracts entered into by the board of directors on the part of the defendant school district, and to enjoin payment upon said contracts, and for other relief. The district court dismissed the petition, and plaintiff appeals. —</p>

— Hon. J. D. Gamble,. Judge. Action by plaintiff, as judgment creditor of defendant W. A. Steel, to set aside a conveyance from said defendant, to L. E. Steel, his wife, who is also a defendant in this case, and to subject the property so conveyed to the satisfaction of plaintiff’s judgment. There was a decree for plaintiff, from which defendants appeal. —

— Hon. W. Gr. Clements, Judge. Lydia A. Lowery died March 4, 1898. The plaintiffs, William D. Lowery, her surviving husband, and E. E. Lowery, a son, alleged that she at that time was seized of two farms in Mahaska county, one of 424 acres, and the other of 248 acres; that the interest of the husband therein is one-third, and that of the son named and each of the •defendants, save Sarah A., who is the wife of William 0.

<p>1 Book Entries of Decedent: Admissible to show advancement in partition. Book entries of advancements made by a testator are admissible in partition to divide liis estate pursuant to his will, taking into consideration advancements received by his children.</p> <p>2 Such entries do not permit personal transactions with decedent to be shown. The admission of book entries of advancements made by a testator does not render his children competent to testify to such advancements, in partition to divide his estate pursuant to his will, taking into consideration advancements received hy them; such evidence not being testimony of the deceased, within Code, section 4604, permitting interested witnesses to testify to transactions with a decedent where the latter’s testimony is admitted in evidence.</p>

<p>Wills: construction oe bequest: The word “in” construed. Testatrix directed that the proceeds of her property should, at the expiration of five years after her death be given to 11 au orphan asylum in the city of M., or,* if no such orphan asylum be then in existence in said city” at such time, to a home foi old ladies in such city; such asylum or home to be organized after the death of testatrix, if not in existence at that time. Five years after testatrix’s death there was a home for old ladies within the corporate limits of M. and an orphan asylum outside the corporate limits, but within a mile of the city. Held, that the bequest to an orphan asylum in the city should not be construed with a strictness limiting the meaning oi ‘‘within the corporate limits,” but that ‘‘in” should be regarded as equivalent to ‘‘at”, so that the orphan asylum was entitled to the bequest.</p>

— Hon. F. H. Helsell, Judge. After the hearing on the former appeal (78 Iowa, 509, 48 N. W. 803), the administrator, Eobert Gorman, died, and his wife, Bridget Gorman, was appointed administratrix in his stead. Yerdictand judgment against defendant, and it appeals. —

— Hon. F. R. Gaynor, Judge. Action at law to recover damages on account of alleged sales of intoxicating liquors to palintiff’s husband. There was a verdict and judgment for plaintiff, and defendants appeal. —

— Hon. M. J. Wade, Judge. Action in equity to restrain the defendant from closing a road leading to the plaintiff’s premises. Judgment for the defendant, from which the plaintiff appeals.—

— Hon. W. Gb Clements, Judge. Proceeding for the probate of a will. The contest was on the ground that the will was not duly executed and witnessed, and that the testatrix bad not sufficient mental capacity. Verdict and judgment for tbe proponent. Contestants appeal. —

— Hon. O. A. Bishop, Judge. Action by the plaintiffs and the cross petitioners Oarr, Adams & Oo. and Garver & Oo. to foreclose mechanics’ liens against the property of the defendants Danner. The defendants Danner in a cross bill sue the defendant Stradley and his sureties, Campbell and Locke, on a bond given for the faithful performance of his building contract with the Danners.