Volume 119 — Iowa Reports

<p>M u rd er: evidence of bad conduct : particular acts : • inadmissible 1 when. In a prosecution for homicide, evidence of particular acts of had conduct of deceased at a remote time and of which it is not shown that defendant had knowledge, is inadmissible.</p> <p>Murder in the First Degree: submission OF. From the evidence in 2 the case the court is sustained in submitting the question of murder in the first degree.</p> <p>Statements of Deceased: conclusions: inadmissibility. The stateS ments of deceased just prior to his death that he was to blame for the difficulty and defendant had to do what he did are conclusions and . inadmissible either as dying declarations or admissions against interest.</p> <p>Improper Argument: objection to: motion for new trial. Ob-4 jection to improper argument must he made at the time and cannot be first heard on a motion for a new trial.</p> <p>£Tote — The figures on the left of the syllabi refer to corresponding figures placed on the margin of the case at the place where the point of the syllabus is decided.</p> <p>Murder: evidence to support verdict. Evidence considered and 5 held sufficient to support a verdict for murder in the second degree and the judgment of the court.</p>

— Hon. A. N. Hob-son, Judge. This is an action in partition, and also asking that title be confirmed in the plaintiffs. The facts necessary to an understanding of the case are, briefly, as follows: On the 16th day of April, 1852, O. P. Beeman purchased of the school fund commissioners of Allamakee county the E. £ of the N. W. £ of 21-97-5, and took a contract therefor in accordance with law.

— Hon. Robert Sloan, Judge. , The defendant was convicted of an assault with intent to commit rape. From tbe judgment of tbe court below, be appeals. —

— Acm. A. S. Blair, Judge. On the 15th day of November, 1886, Edward M. Johnson purchased an undivided one-half interest in a certain addition to Minneapolis for the sum of $30,536.75. $7,381.60 of this price was paid in cash by W. O. Richards and Allen T. Lane in equal parts, and a written agreement was entered into between Johnson on the one hand and Richards and Lane on the other, whereby Johnson became obligated to pay the balance of the purchase price of the land, and…

<p>Fire Insurance: liability of railroad company: contract waiving same : negligence. Negligence on the part of a 1 railway company is presumed where it is shown that property has been destroyed by reason of a Are caused from the opera- ■ tion of its trains, but the company may contract for an exemption from such liability for injury to property located upon its right of way.</p> <p>Same: liability of insurance company. In the absence of such 2 a contract the liability of the railway company is primary and that of an insurance company secondary.</p> <p>Subrogation: waiver of right by insured; liability of insurance company. Where the assured has contracted away the 3 right of the insurance company to subrogation without its knowledge, he cannot recover in case of loss upon the policy.</p> <p>Lease: exemption from loss ; binding upon assignees : holding over. A provision in a lease of right of way ground for 4 elevator purposes that the railway company shall not be liable for any loss, to buildings from lire caused by the operation of trains, is not only binding upon the original lessees but upon their successors and assigns, who take the lease with knowledge of the provision, and this is true where the term of the original lease has expired and the tenants are holding over under the old lease.</p>

— Hon. C. P. Holmes, Judge. Action to quiet title to part of a city lot. The defendant appeals from a decree granting the relief prayed.—

— Hon. S. M. Weaver, Judge. Suit in equity to quit title to certain real estate occupied by defendant for railway purposes. The land was originally condemned by the Ft. Dodge & Ft. Eidgly Eailroad Company, and by it sold to defendant. Sometime before this suit was instituted, defendant procured a decree to be entered in the district court of Webster county, in an action against plaintiff and others, quieting title to the land in dispute.

— Hon. W. H. Tedeord, Judge. Action in equity for an accounting. The opinion states the facts. There was a decree dismissing the petition, and judgment against plaintiff f<jr costs, and he appeals. —

<p>Appeal írom Woodbury District Court. — Asm. J. F. Oliver, Judge.</p> <p>Action to recover damages on account of alleged personal injuries. J udgment for plaintiff, and defendant appeals.</p>

— Hoy. A. D. Bailie, Judge. Action to recover commissions for the sale of machinery. Trial, and verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. T. M. Pee, Judge. ■ Action to recover damages for the killing of plaintiff’s cow on defendant’s right of way, it being alleged that the animal escaped from plaintiff’s premises upon said right of way by reason of a defective gate at a private crossing. Verdict for plaintiff for $250, but on defendant’s motion, based on a special finding the court set aside the general verdict and rendered judgment for defendant for costs, from which plaintiff appeals. —

<p>Personal Injury; street railway : contributory negligence : exer1 oise op care. There is a distinction between the liability of a steam railway company and a street railway company in the operation of cars where an injury occurs involving the question of contributory negligence. In the former case, care is required when the danger becomes atcually known, while in the latter, the exercise of care is a primary obligation.</p> <p>Same; question por jury; evidence. Evidence in the case eonsid2 ered and held, that the question of the exercise of reasonable care on the part of the motorman to avoid the injury, notwithstanding the evident contributory negligence of deceased, should have been submitted to the jury.</p>

<p>Appeal fr m Bremer District Court. — Hon. J. F. Clyde, Judge.</p> <p>Action to recover for labor, for personal property converted by the defendant, and for the use of land. Verdict and judgment for the plaintiff. The defendant appeals. —</p>

— Hon. J. K. Whitaker, Judge. Prior to April 19, 1901, the estate of Charles Mead, de,ceased, late of Story’ county, had been fully settled and distribution made under orders of the district court in and for said county. The appellees are the widow and children of said Charles Mead, and distributees of his estate.

— Hon. H. M. Remley, Judge. Suit for the recovery of taxes paid on a stock of goods. The defendant appeals from judgment against it.—

<p>Appeal from Woodbury District Court. — Hon. A. R. Dewet, Judge.</p> <p>Indictment for murder. Conviction of murder in the second degree, and defendant appeals. —</p>

<p>Appeal from Winneshiek District Oourt. — Hon. L. E. Fellows, Judge.</p> <p>Action at law on a promissory note signed by defendants Severson. Defense, illegal consideration. The trial court sustained defendant’s motion for judgment on the pleadings, and plaintiffs appeal. —</p>

— Hon. J. H. Apple-gate, Judge., . Plaintiff’s horses were stung to death by defendant’s bees. From judgment for damages the defendant appeals.

— Hon. Fred O’Donnell, Judge. An action to foreclose a real estate mortgage given by Alexander and Charles Simplot to secure their joint note of $10,000. The defendant Franklin A. Simplot was the son of Alexander Simplot, and when he was about sixteen years of age he recovered of the Chicago, St. Paul & Kansas City Kailway Company $4,800 for an injury which he received while in its employ.

<p>Appeal from Dubuque District Oourt. — Hon. Fred O’Donnell, Judge.</p> <p>Action at law to recover a sum of money said to have been obtained from plaintiff by defendant, as her agent, through fraud and deceit. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. —</p>

Court. — Hon. F. O. Platt, Judge. Action in equity for the reformation of a deed conveying certain real estate. There was a decree for the plaintiff, and the defendants W. H. Rownd” and May Rownd .appeal. The opinion sufficiently states the facts.—

— Hon. H. M. Remley,. Judge. Action to recover possession of a strip of land along-the boundary line between tbe farms of plaintiff and de*fendant. Judgment for defendant and plaintiff appeals-..

— Hon. Wm. Hutchinson, Judge. Action to recover damages for injuries received on account of a defective sidewalk. Verdict and judgment for plaintiff, from which defendant appeals. —

<p>Promissory Note: sureties: drawer: waiver of defenses. 1 Where a note signed by sureties recited that the ‘ ‘ drawers’ ’ and indorsers waived all defenses on the ground of “any” extension of time of payment, the word ‘ ‘ drawers’ ’ did not apply to either the payee or indorsers but should be construed as designating the original promisor and sureties.</p> <p>Same: extension of payment: waiver of defenses. The word 2 “any” before “extension”, in relation to an extension of the time of payment of a note, is equivalent to “every”, and the provision is a waiver of defenses in case of more than one extension.</p>

<p>Appeal from Wapello District Court. — Hon. Robert Sloan, Judge.</p> <p>Judgment for plaintiff, and defendant appeals.—</p>

— Hon. A. D. Bailie, Judge. Action to set aside a deed for want of consideration, ;and for fraud in its procurement. Judgment for the plaintiff. The defendants appeal. —

<p>Action for Damages: judgment: entry of: appeal. An abstract or a memoranda of the amount of a judgment, entered1 upon the judgment docket, is not proper evidence of, nor does-it constitute a judgment from which an appeal will lie.</p>

<p>Appeal from Woodbury District Court. — Hon. Frank E. Gaynor, Judge.</p> <p>Suit in equity to set aside a tax deed, to redeem,, to quiet the title of certain lands in plaintiff, and for an-accounting. Trial to the court, decree for defendant, and-, plaintiffs appeal. —</p>

<p>Appeal from Plymouth District Oourt. — Hon. W. M. Hutchinson, Judge.</p> <p>Suit in equity to cancel tbe release of a mortgage executed by defendants Whitehouse to plaintiff; to re-establish said mortgage; to declare defendants Kern & ■Scofield junior and inferior lienholders; to bar and foreclose their lien, or to require them to redeem from a sheriff’s sale held on another mortgage held by plaintiff; and for general equitable relief.' Defendants answered the petition, and George E. May intervened, claiming that plaintiff had released his mortgage of record, and that, relying on this release, he purchased of Kern & Scofield in good faith a mortgage held by them; that plaintiff is -estopped from now claiming that the release of record was of no effect; and that he should have a decree quieting' title as against all parties to the litigation. The cause was tried to the court, resulting in a decree for intervener, and plaintiff appeals. —</p>

— Hon. Georg® W. ' Wakeeiebd, Judge. This is a proceeding, under section 3219 et seq. of the-Code, for the appointment of a guardian of the property of the defendant, it being alleged that she is ,a person of unsound mind. There was a trial to a jury, and verdict in. favor of the appointment of a guardian. Amotion for new trial having been overruled, the court made and entered an order appointing George M. Par doe, Esq., as temporary guardian.

— Hon. S. M. Weaver, Judge. The petition alleged plaintiff’s ownership of lots 1, 2, 8, 4, and 5 in block 67, and lots 1, 2, and 8, in block 68, in Town Oompany’s addition to Ft.

— Hon. W. B. Quarton, Judge. Action to recover for breach of contract of employment. There was a„ directed verdict for the defendant. The plaintiff appeals. —

— Hon. J. R. Whitaker, Judge. Actions to quiet title in certain tracts of land, claimed as portions of the bed of a lake, added to the lands of plain iffs, respectively, by accretion or reliction. Defendant, by cross-petition in each case, asked that the tracts of land in controversy be decreed to belong to him, as owner under the swamp land grant.

<p>Appeal from Polk District Court. — Hon. S. F. Prouty, Judge.</p> <p>Action to recover possession of land. Verdict and judgment for plaintiff, and the defendant appeals.—</p>

<p>Highways: division line between land: relocation: acquiescence. Where a legally laid out highway has served for over twenty-five years to mark the division line between abutting land owners, and each constructed highway fences in accordance therewith and otherwise improved their property with respect thereto, and in conjunction with the general public acquiesced in the use of such highway, one of the parties cannot thereafter question the correctness of its location or compel its removal to correspond to a subsequent survey.</p>

— Hon. A. B. Thornell, Judge. The plaintiff is the receiver of the Council Bluffs Insurance Company. The defendant John Reimers was one of the stockholders in the company, having subscribed for $25,000 of its stock, twenty-five per cent, of which was payable in cash, and the remainder as assessments were made. Of this twenty-five per cent, payment he paid a part in cash and gave the company a note, signed by himself and wife, for the balance, $4,750.

— Hon. W. B. Quarton, Judge. Action for loss under insurance policy issued by defendant. The case was tried to a jury, and a verdict returned for plaintiff, on which judgment was entered. Thereupon the defendant moved for a new trial, which was denied, and it appeals . —

— Hon. A. N. Hobson, Judge. Appeal from judgment disallowing a claim of Fayette county against the estate for $966, being for the care and support of the deceased, Anna M. Jacob, while an insane inmate at the state hospital at Independence. —

— Hon. F. R,. Gaynor, Judge. Plaintive had judgment by default against the Iowa Telephone Company. That company moved to set aside the default and judgment on the ground of mistake and misunderstanding between the general manager of the company and its general counsel. This motion was overruled, and the Iowa Telephone Company appeals.—

— Hon. A. J. House,. Judge. Action at law to recover upon a contract for the erection and equipment of a creamery. Yerdict and judgment for defendants, and plaintiff appeals. —

— Hon. M. O. Matthews, Judge. Action to recover damages for tbe conversion of sixteen and two-thirds shares of the capital stock of a corporation known as the Dubuque Specialty Machine Works. On motion of defendant, without objection by plaintiff, the case was transferred to the equity docket. After a hearing on the evidence the court rendered judgment for plaintiff for $817.05 and costs, from which judgment each party appeals.

— Hon. Wm. Hutchinson, Judge. Action to recover for a personal injury. At the close of the evidence for plaintiff, the court, on motion therefor, directed a verdict in favor of defendant. A motion for new trial was made and overruled, and judgment was-entered dismissing the action, and against plaintiff for the costs thereof. From such judgment, plaintiff appeals.—

<p>Appeal from Buchanan District Court. — Hon.- A. S. Blair, Judge.</p> <p>Appeal from the allowance of a claim in favor of plaintiff against the estate of William Lutz, deceased.</p>

— Hon. O. A. Bishop, Judge. Action in equity to recover on a certificate of insurance. The only defense interposed was that death was by suicide. Decree for defendant, from which plaintiff appeals.

— 'Hon. G. W. Burn-ham, Judge. Action in equity to restrain the defendants from selling the plaintiff’s real estate to satisfy a debt; Judgment for the plaintiff. The defendants appeal. —

— Hon. Clieeord P. Smith, Judge. Suit in equity for the 'partition of certain real estate. The trial court'found that the parties were owners in severalty of certain parts of the property, confirmed their interests therein, and denied partition. Both parties appeal, but, as defendant first perfected his,' he will be called “appellant.” —

— Hon. W. B. Quarton, Judge. Plaintive acted as attorney for Kennedy in collecting a claim of $2,000 against a railroad company, and thereafter recovered judgment against said Kennedy for the services thus performed. Under an execution issued upon this judgment, garnishment proceedings were instituted against Edgington.

— Hon. John F. Oliver, Judge. The plaintiff brings this action, as administrator of the estate of Iver Olson, deceased, to recover damages for a personal injury resulting in the death of said Olson. The defendant operates a packing plant at Sioux Ci-ty, and at the time in- question was engaged in making repairs and improvements' on the buildings used in connection with such plant.

— Hon. W. B. Quarton, Judge. Suit in equity to quiet plaintiff’s title to the N. £ of section 2, township 97, range 35. Defendants Daniels and Leary filed answer, denying plaintiff’s ownership, and claiming title to the land in controversy as a part of the S. ■J of section 2 of said township and range, pleading adverse possession, acquiescence in an established boundary, and an estoppel.

— Hon. F. R. Gaynor, Judge. This is an appeal from a second judgment for plaintiff in an action to recover damages for personal injuries received by plaintiff while a passenger on defendant’s train. The facts are sufficiently set out in the opinion on a former appeal. See 108 Iowa, 614. —

— Hon. W. N. Treichler, Judge. Ac iion at law to recover $2,000 as the beneficiary of Joseph Rambousek. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. J. H. Apple-gate, Judge. Tnis petition alleged- that plaintiff acquired lots 5, 6, and 7 in block 3, abutting Fifth street, in Tyler’s addition to Perry, in 1892, and shortly thereafter occupied them as a homestead for himself and family, and has continued to do so since; that said street is seventy feet wide, and the only one through which plaintiff has convenient access to said property.

<p>Appeal from, Cedar Rapids Superior Court. — Hon. J. H. Bothrock, Judge.</p> <p>Action to recover for a personal injury. Judgment for the plaintiff. The defendant appeals. —</p>

— Hon. W. H. Tedrord, Judge. Ella Hall was the owner of lot 5 in Devoe’s First addition to the city of Crestón, and, with her husband, John Hall, occupied it as their homestead. November 27, 1893, they executed a mortgage thereon to secure their three notes amounting to $2,500 to Adolphus Busch.

— Hon. O. D. Wheeler, Judge. This action was brought by plaintiff to enforce the-specific performance of a contract to convey lands. It appears that the record title to such lands had been in the name of defendant Mary J. King for more than ten years-previous to the date of the contract alleged, and during alL said years the defendants, S. S. King and Mary J. King,, who are husband and wife, had resided thereon, with their family, as a home place.

— Hon. W. B. Quarton,. Judge. Action to quiet plaintiff’s title to certain lands in Clay county, Iowa. Defendant’s denied plaintiff’s ownership, pleaded an estoppel, the statute of limitations,, and adverse possession.

— Hon. O. H. Kelly, Judge. Action in equity to reform policy of insurance, and to» recover for loss thereunder. Decree for plaintiff. Defendant appeals. —

—Hon. W.. B. Quarton, Judge. An equitable action, supplemental to execution, to subject moneys and other property claimed by Sarah J. -Brothers to the payment of a judgment against her husband, G. F. Brothers. Decree for defendants, and plaintiffs appeal. —

— Hon. O. P. Holmes, Judge. Certain lots in the city of Des Moines were sold in December, 1896, for the ordinary taxes of 1895, and in November, 1900, a tax deed was made to the -plaintiff. In April, 1895, street improvements were regularly ordered in front of these lots, which were completed later, and the costs thereof assessed upon the lots in September, 1897, for which assessment certificates issued, which are now held by the appellant.

<p>Appeal from Woodbury District Court. — Hon. TVank K. Gaynor, Judge.</p> <p>ApurL 22, 1897, the plaintiff entered into a written contract with defendant by the terms of which she- agreed to convey to him three lots, with flats thereon, in Sioux City, for 1,770 acres of land in Cherokee county, subject to incumbrance of $6,000, and to pay in difference $4,000 in cash and $12,000 upon the completion of the deal. Each agreed to convey to the other by warranty deed, “with abstract showing perfect title.” “Each of the above parties agree to place their respective deeds in the Merchants’ National Bank of Sioux City, Iowa, until the abstracts are-completed ,or the deal is to be completed, on or before thirty (30) days from date. * * * The said Mary A; Lessenich is to give the rents to the said Warren Sellers of all her property from May 1st, 1897, and the said Warren Sellers is to give possession of his property in March 1st, 1898, according to a lease thereon.” Each party signed and acknowledged deeds to the other and deposited them with contract in said bank. The plaintiff paid $3,400' down, and shortly afterwards defendant forwarded abstracts of his land, which were handed by agents, without plaintiff’s authority, as she claimed, to an attorney for examination. In a memorandum the attorney pointed out-certain incumbrances which should be removed, and this was forwarded to Sellers, who made the required corrections. Plaintiff then demanded the abstract in order to-submit them to her attorney, and they were delivered to-the Tatter May 17th; and on the 21st of that month he dictated a letter to defendant, which she signed and mailed to the effect that she revoked the agreement on the-following grounds: (1) That it was obtained by fraud; (2) that the abstracts failed to show perfect title; and (3) that the abstracts affirmatively showed it beyond defendant’s power to so correct them as to exhibit perfect title; and demanded the return of the money paid. Thereafter, as the petition alleges, but subsequent to the lapse of thirty days within which the transaction was to be closed, defendant contracted to exchange his land to one Shepard, and on the 18th day of August, 1897, this action was begun by plaintiff' to recover the amount, she had paid, wit 1 ¡interest. The petition further averred ihat. the place of performance was in Woodbury county; that* defendant claimed an interest in her lots; and prayed, in addition to recovery of the money, that the contract be canceled, and that the bank deliver back her deed, and the defendant be decreed to have no title or interest in the lot*. The defendant moved that the cause be transferred to the county of his residence, but this was denied. He then ■answered, and upon hearin >■ the relief prayed was granted. He appeals. —</p>

— Hon. S. M. Weaver, Judge. The plaintiff is a minor,; and he sues by his next friend, J. F. McFadden. A demurrer was interposed to the petition, and the same was sustained. Plaintiff having elected to stand on his petition, and refusing to plead over, judgment was rendered against him for costs, and he app eals.

— Hon. W. B. Quarton, Judge. Action to recover taxes on property which was withheld, and not listed for taxation. The trial court sustained a demurrer to the petition, and plaintiff appeals.—

— Hon. James D, Smyth, Judge. Indictment charges defendant with malicious mischief in pulling up and severing from the land of one Anderson thirty-sis peach trees and five apple trees. There was a verdict of guilty, and judgment imposing fine and imprisonment, from which defendant appeals. —

— Hon. O. A. Bishop, Judge. Action to recover damages for personal injuries alleged to have been 'occasioned by defendant’s negligence. At the close of the evidence the district court directed a verdict for defendant, and plaintiff appeals. —

— Hon. F. H. Helsell, Judge. PtiAtnttfes were notified by the defendant, the board of review for the adjustment of the assessment of taxes, that the assessment of plaintiffs’ property had been raised; and upon the appearance of plaintiffs, and a hearing with reference to the matter, the board raised plaintiff’s assessment.

— Hon. J. H. Apple-gate, Judge. Plaintiee is the widow of Joe D. Payne, and the beneficiary named in an “accident certificate,” so called, issued by the defendant association to said Joe D. Payne during his lifetime. One of the provisions of such certificate is that in case of the death of the holder by accidental cause the association will pay to the beneficiary named the sum of $2,000.

— Hon. S. M. Elwood, Judge. Action for damages, and to abate a nuisance. A verdict was directed for the defendant, on which judgment was entered. The plaintiff appeals. —

— Hon. Franklin O. Platt, Judge. The plaintiffs are the executors of the estate of Caleb Jewett, deceased, and as such executors they had in their possession on the 1st day of January, 1896, moneys and credits of the estate, which were not listed for taxation for that year. On December 21, 1901, the treasurer and the auditor of the county separately notified the executors to appear and show cause why a correction of the assessment for 1896 should not be made.

— Hon. F. B. Gaynor, Judge. Action for the conversion of certain personal property, said to have been owned by one Martin Peterson, who has been adjudged a bankrupt by the federal courts. Defendants denied the alleged conversion, and pleaded that they held the property under certain chattel mortgages executed by Peterson. The case was tried to the court without a jury, resulting in a judgment for defendants. Plaintiff appeals. —

— Hon. Samuel Elwood, Judge. Action on a promissory note dated June 11, 1898, for $545, payable in two years, with $259.52 indorsed thereon July 11, 1898, executed by defendants to F. G. Hillman, and' by him transferred to the plaintiff.

— Hon. A. D. Bailíe, Judge. Action to cancel conveyances and quiet title to land. Hansen and Thompson, defendants first named in the two cases, respectively’, made default, and a decree was entered in favor of Albert Kopesky and the Iowa Loan & Trust Company in each case. Plaintiff appeals. —

<p>Appeal from Marshall District Court. — Hon. G. W. Burn-ham, Judge.</p> <p>The opinion states the case. —</p>

— Hon. A. D. Bailie, Judge. Action in equity to restrain the defendant Lambe, who is treasurer of Palo Alto county, from proceeding to enforce the collection of certain taxes. An answer was hied, consisting of three divisions, to the second and third of which a demurrer was interposed and sustained. From the ruling thereon, the defendants appeal. —

— Hon. W. R. Green, Judge. Action for goods and merchandise sold and delivered •to Ray Bros. Defendant denied all liability. Directed verdict for defendant, and plaintiff appeals. —

<p>Appeal from Mahaska District Court. — Hon. A. R. Dewey, Judge.</p> <p>Action for damages. Judgment for plaintiff, and the-defendant appeals. —</p>

— Hon. Franklin C. Platt, Judge. Plaintiff, as the guardian of certain minors, had in his possession on the 1st day of January, 1896, moneys and credits belonging to them, which were withheld from taxation for that year. It was admitted that the omission was not discovered by the treasurer until December, 1901.

— Hon. A. W. Wilkinson, Judge. Certiorari proceedings to review the action of the city council of the city of Perry in extending the limits of said city. The trial court overruled a demurrer to the petition, and defendants appeal. —

— Hon. A. D. Bailie, Judge. Action against defendant, as sheriff, to recover value of property of plaintiff alleged to have been wrongfully levied on and sold by defendant, as sheriff, under writ of attachment against one Flynn. At the conclusion of plaintiff’s'evidence the court sustained defendant’s motion to direct a verdict for defendant, and rendered judgment thereon. Plaintiff appeals. —

<p>Action by Administrator to Recover Annuity! SAME defined. A 1 provision, in a deed that ‘ ‘the grantee is to pay the grantor the sum of $200 a year on each and every year during the lifetime of the grantor, on January 1st, and such payment shall be a lien on the land, ’ ’ constitutes an annuity, for the payment of which the real estate stands as security.</p> <p>Apportionment of an Annuity. Where an annuitant dies prior to the 2 date of payment of the annuity, the executor cannot compel an apportionment and pro rata payment for the year.</p>

<p>Appeal from Muscatine District Court. — Hon. A. H. House, Judge.</p> <p>F. B. Hoffmeyer died January 7,1899. He was unmarried, and left a certificate of insurance in the Modern. Brotherhood of America for $2,000, payable to himself or legal representatives. Edward A. Hitchcock was appointed .administrator of the estate January 30, 1899, and received $1,996.40 on this certificate the same day. Two days later ■execution was issued on a judgment rendered in favor •of Michael O’Melia against M. O. Hoffmeyer, the mother of the deceased, and W. F. Hoffmeyer, a brother, for $839, ■September 26, 1891, and the administrator duly served with notice of garnishment. At the April term of court the garnishee answered, orally stating the above facts only. ■On the 20th day of that month the six brothers and sisters ■of deceased filed a petition of intervention, in which they alleged that M. O. Hoffmeyer had assigned to them the certificate of insurance in satisfaction of an existing indebtedness, and prayed that the administrator be ordered to pay the money oyer to them. The judgment plaintiff answered May 23d. An amendment to the petition of intervention was filed September 13r 1900,. to which the judgment plaintiff responded October 10th following, and on the same day the garnishee filed an additional answer in writing, setting up 'substantially the same matters .as interveners. August 14, 3899, Peter N. Campbell and Fred Giester intervened, alleging in their petitions the recovery of judgments against M. O. Hoffmeyer,. the fraudulent assignment of the certificate of insurance, and prayed for the establishment of liens on the fund in the administrator’s hands for the satisfaction of their judgments. Upon trial to the court without a jury, the garnishee was ordered to pay the judgments from the fund in his hands in the order mentioned. The intervening children of M.. O. Hoffmeyer and the administrator appeal. —</p>

— -Hon. W. N. Green,, Judge. Action in equity to enjoin the sale of certain premises' under execution. Defendants ask to be allowed, as judgment creditors, to redeem from plaintiff, bolding title to the premises under sheriff’s sale. Decree for plaintiff, from which defendants appeal. —

— Hon. O. P. Holmes, Judge. This is an action at law to recover on the following instrument: “$2,000.00. Des Moines, Iowa, May4th, 1890. Six months after date, for value received, we jointly and severally, as principal, promise to pay to the order of Spencer M. Rice the sum of two thousand dollars, with interest at the rate of ten per cent, per annum from date if not paid at maturity, and attorney’s fees if suit is instituted'upon this note.

<p>Appeal from Lynn District Court. — Hon. Wm. G. Thompson, Judge.</p> <p>Proceeding to establish a claim for funeral expenses attending the burial of Edward Lynch, deceased. The administrator pleaded that the expenses were extravagant and foolish, considering the condition of the decedent’s estate and his social standing and station in life. Trial was had to a jury, resulting in a verdict and judgment for plaintiff in the sum of $455. The administrator appeals.</p>

<p>Appeal from Scott District Court. — Hon. James W. Bollinger, Judge.</p> <p>Indictment and conviction for rape. Defendant appeals.</p>

— Hon. J. H. Apple-gate, Judge. Action to recover damages sustained as the result of a personal injury. There was a jury trial, and verdict for plaintiff. A motion for new trial having been overruled, judgment was entered on the verdict. Defendant appeals.

Greene District Court. — Hon. S. M. Elwoód, Judge. Action at law to recover compensation for services in furnishing a purchaser for defendant’s farm. The district court directed a verdict for defendant, and plaintiff appeals.

<p>Action for Nuisance; recovery oe damages; continuing nuisance : 1 limitation. Where a system of sewerage has been adjudged to be a continuing nuisance and subject to abatement, and where the city can remedy the nuisance without going off its own premises, the same constitutes a continuing nuisance and damages within the statutory period of limitations may be recovered, though the original cause of action is barred.</p> <p>Same; second recovery. Where a nuisance is continuing, one 2 recovery for injury will not preclude recovery for damages suffered after the first judgment.</p> <p>Adjudication: evidence OF: instruction. Where it has been 3 adjudicated that a continuing nuisance exists, and that fact is established in an action for damages subsequently suffered, evidence that the nuisance is permanent is immateria , and an instruction that the character of the nuisance is established by such adjudication and the plaintiff is entitled to damages, is held correct.</p> <p>Evidence: former judgment: admissibility of: objection 4 thereto must be specific. Where a judgment is properly offered in evidence for the purpose of showing a prio adjudication for damages for the continuance of the same nuisance, a general objection thereto will not raise the question of its inadmissibility because it contains the amount of the former recovery, and same will not be considered on appeal.</p> <p>Same: An objection to the admission of a former judgment in 5 such a case on the ground that it was reversed on appeal, cannot be first urged on appeal.</p> <p>Same: admission of another petition: error. The admission 6 of a petition embracing the same cause of action, but filed in another court and upon which no action has been taken, was prejudicial error.</p> <p>Same: measure of damages. Ordinarily the measure of dam-7 ages to a farm byreason of a nuisance is the depreciation in the rental value of the farm as a whole, and evidence that some portion is as productive after the establishment of the nuisance as before, should not be received.</p> <p>Same: hypothetical questions. Hypothetical questions on the 8 depreciation in value of the property affected by the nuisance, which are not supported by the proven facts, should not be propounded or answered.</p> <p>Cross Examination of Expert Witness. The liberty allowed in 9 cross-examination of experts is largely discretionary with the court, and for the purpose of testing his knowledge or the weight of his testimony almost any state of facts may be assumed.</p> <p>Assignment of Error: must be specific. An exception to an in-10struction must specifically point out the error complained of.</p>

—'Hon. John T-Scott, Judge. Action at law to recover of the defendant on his covenant in a deed. There was a directed verdict for the defendant, and a judgment thereon, from which the plaintiff appeals, —

— Hon. Z. A. Church,, Judge. Action by judgment lienholder to- redeem from- safe under mortgage foreclosure. Decree for defendants, from which plaintiff appeals. —

— Hon. A. K. Dewey and Hon. John T. Scott, Judges. On April 9, 1900, Samuel Decatur obtained a judgment against W. S. Simpson in the district court of Powshiek county for the sum of $2,500 and costs. From such judgment an appeal was taken to this court. On April 23, 1900, and under execution issued upon said judgment, John Simpson was garnished as a supposed debtor of said W. S. Simpson. The answers of said garnishee were taken and filed in said court January 3, 1901.

<p>Appeal from Calhoun District Court. — Hon. Z. A. Church, Judge.</p> <p>The facts of the case are stated in the opinion. The plaintiff appeals. —</p>

<p>Appeal from Woodbury District Court. — Hon. J. F. Oliver,, Judge.</p> <p>Action for commission alleged to have been earned in procuring an exchange of properties. Verdict and judgment for the plaintiff. The defendant appeals.</p>

Appeal -from Marshall District Court. — Hon. Gr. W. Burn-ham, Judge. Action for malicious prosecution. Verdict for plain■fciff. From judgment on verdict defendant appeals.—

<p>Appeal from Hardin District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action to foreclose a mechanic’s lien. Judgment for the plaintiff, from which the defendants appeal. —</p>

<p>Intoxicating Liquors: bar to prosecution; removal of: adju1 dioation : on whom BrNDiNq. The filing of a sufficient petition as provided in Code, sections 2448 and 2449, ipso facto, removes the bar to prosecution for the sale of intoxicating liquor, and the district court has jurisdiction to determine-the sufficiency of such petition, and its adjudication is binding upon all who may be interested in the same question.</p> <p>Same: former adjudication: proof of. A decree of the dis-2 trict court is presumed to be regular, until the contrary appears, and where a former adjudication is relied upon, which shows on its face what the issues were and what was in fact decided, the introduction of the original notice and pleadings is not necessary.</p> <p>Right to Sell Liquor: revocation ok. The right to sell liquor is 3 not a private or property right, but may be revoked at any time without notice.</p>

<p>insurance; pleadings; sufficiency of. objection to. An i objection to pleadings that they do not comprehend the questions presented to the jury must be raised upon the trial or by motion in arrest of judgment, and not for the. first time on aPPeal- • ■</p> <p>Waiver of Proofs of Loss: what constitutes. Where an officer á of an assessment insurance company has authority to waive proof of loss, and writes a letter in which he says the claim is invalid by reason of the suspension of the member but makes no objection for failure to make proof of loss, the same is waived.</p> <p>Waiver of Fraud: acceptance of dues : evidence. Where an assess-3 ment cqmpany accepts membership dues through its authorized officer, it is estopped from denying the validity of the certificate on any ground which would have justified a refusal of such dues at the time offered, provided the association, through its officer, knew or had notice of such facts as would charge it or its officer with knowledge of the invalidity of the certificate. Evidence examined and held sufficient to constitute a waiver of the fraud charged.</p> <p>Depositions: offer of part only: reversible error. Per-4 mission to introduce parts of depositions will not constitute reversible error, where it appears that the portions not offered are immaterial or where no prejudice arises.</p> <p>Evidence: admission of decree only. A duly authenticated de5 cree of divorce is admissible in evidence, though not accompanied by the entire record.</p> <p>Allowance of Interest: tender. Where the defendant contends 6 that it is not liable on the certificate of insurancs, legal interest should be allowed, though plaintiff is a nonresident and no tender could be made within the state.</p>

— Hon. J. H. Eothrock, Judge. Action to recover damages for personal injuries received by plaintiff in a collision with a street car upon a street in the city of Cedar Eapids. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.—

— Hon. O. D. Wheeler, Judge. The board of supervisors and O. W. Welman entered into a written contract whereby Welman undertook to uncover and report for assessment property which had been omitted from taxation in the county, and the county agreed to pay him for such services a sum equal to one-half of all moneys collected as a result of his investigation.

<p>Sale of Land on Commission: agent’s authority: compmanoe with: waiver: evidence. Where a resident of Illinois authorized an agent to find a purchaser for his property, at a stated cash price, and the agent made a contract of sale at the price named —$50 down, balance on delivery of deed and abstract — -the terms of sale were not as authorized, and no recovery of commissions could be had unless the conditions of payment and delivery of deed _and abstract were waived by defendant. Evidence examined and held that there was a waiver of strict compliance by the agent in the terms of the sale.</p>

<p>Action for Tort: pleadings: allegation of conspiracy: when 1 essential. Where a tort may have been committed by one or more, independent of any conspiracy, the allegation of conspiracy is immaterial, and recovery' of damages may be had against those participating in the' tort, but to charge all the combination must be shown.</p> <p>■ Record of Proceedings of Council: presumed correct. The 3 record of the proceedings of a city council is presumed to correctly state its action, unless the contrary is shown.</p> <p>Malice: want of evidence: submission of issue to jury. Evi3 deuce considered and held that it failed to establish malice on the part of the members of the council in opening a street, and that this issue ought not to have been submitted to the jury.</p> <p>Evidence:- opinion of witness. The opinion of a witness, that 4 a strip, of land is not in. fact a street, who claims to have examined it and so concluded, is incompetent to show malice or the nonexistence of the claimed street.</p>

— Hon. Wm. G-. Thompson, Judge. Action in equity to enjoin defendant from obstructing a street in plaintiff city. Decree for defendant,, from which plaintiff appeals. —

— Hon. Chas. A. Bishop,, Judge. Action at law upon a policy of insurance. Trial to the court, without a jury. Judgment for plaintiff, and defendant appeals. —

<p>Contracts; joint or several liability: voluntary payment: contribution. A contract for the sale of a stallion provided “the.undersigned subscribers, who, wishing to improve their stock, agree to pay McLaughlin Bros. $100 for each share of stock in said stallion. Capital stock $3,000. .Number of shares 30,” 'held to be a several contract, and subscribers who voluntarily paid the shares of others in default could not recover from them the amounts so paid.</p>

<p>Boundary Line: establishment BY acquiescence. Acquiescence 1 in a marked boundary line is some evidence that it is the true line, and though possession up to such line was originally taken by mistake, yet acquiesence therein as the true boundary for the statutory period will result in its establishment under the doctrine of adverse possession.</p> <p>Same: construction of building along portion of line. Where 2 a boundary line is conceded to be a straight line, the construction of a building along a portion of its distance amounts to a recognition of the entire line and a claim to all the land bounded by it.</p>

— Hon. O. P. Holmes,. Judge. Action at law upon a fire insurance policy. At the close of all the evidence in the case, defendant’s motion k> direct a verdict in its favor was sustained, and a verdict was returned accordingly. Thereafter plaintiff made a motion to set the verdict aside, and for a new trial, which motion was sustained, and a new trial ordered. ■ Defendant appeals. —

— Hon. W. B. Quarton, Judge. The plaintiff alleged, in the first count of the petition* that, as treasurer of the county, “he is informed and duly apprised, and therefore believes: That the defendants on January 1, 1895, had certain personal property, consisting of moneys and credits, which they willfully and fraudulently failed, neglected, and refused to list and return to-the assessors of the town of Rolfe, Pocahontas county* Iowa, where they resided, and the said…

<p>Appeal from Polk District Court. — Hon. S. F. Prouty, Judge.</p> <p>This is an appeal from a decision of the district court holding that certain property belonging to plaintiff and devoted to educational purposes was subject to assessment and taxation. —</p>

— Hon. O. P. Holmes, Judge. Action in equity, under Code, section 2384, to enjoin defendant from maintaining a liquor nuisance. Defendant’s motion for more specific statement was sustained, and, plaintiff electing to stand on- his petition, judgment was rendered for the defendant, from which plaintiff appeals.

— Hon. Charles A. Bishop, Judge. The facts, in so far as material, are that E. S. and Alberta Aborn were owners of lots 11 and 12 in block 20 of the original town of Ft. Des Moines for many years prior to May 12, 1899, when they conveyed them to defendants. May 11, 1898, Ella Wagner recovered a judgment against the Aborns for $88.54 and costs, which was subsequently assigned to the plaintiff.

— Hon. Chas. A. Bishop, Judge. Action at law to recover on a contract for personal services. Trial to a jury, verdict for plaintiff, and defendant appeals. —

<p>Appeal from Sioux District Court. — Hon. J. F. Oliver and-Hon. Geo. W. Wakeeield, Judges.</p> <p>The main action is one for the conversion of personal property.. There was a verdict and judgment therein for the plaintiff, from which the defendant appealed on the 23d day of May, 1900. After the judgment was rendered against him, the defendant filed a petition for a new trial,, the facts of which were tried and determined adversely to-him in June, 1900, and from that judgment he also appeals.</p>

— Hon. A. D. Bailie, Judge. Both actions were begun for the partition of certain real estate, and were consolidated for the purposes of trial. From the decree entered, Ward and Gleason appeal.—

— Hon. Franklin 0, Platt, Judge. Action at law to recover damages caused plaintiff and her property through a fire set out by a locomotive being operated on defendant’s line of road. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— BLon. S. F. Frouty Judge. Action to restrain the defendant from occupying the streets and alleys in the city of Des Moines with' its telephone poles and wires.

<p>Sale of Personal Property: undisclosed principal: liability of agent : evidence : instruction. It is the duty of an agent 1 who would avoid personal liability for the purchase of property to disclose his agency, and not of the purchaser- to discover it. Evidence considered and held sufficient to warrant the jury in finding the agent personally liable under the above rule. -</p> <p>Presentment of Check for Payment: delay in: instruction. 2 Failure to promptly present for payment a personal bank check which, when presented is dishonored. for want of funds, will not, in the absence of a plea or . proof that loss occurred by such delay, operate to discharge the debt for which it was-given; and a failure of the court to instruct the jury that unless they found the check was presented for payment within a-reasonable time there could be no recovery, was not error.</p>

<p>Streets: non-user: abandonment. Where there has been a nonuser of a public street for a long time — not less than the statutory period in ordinary eases — accompanied by actual and notorious possession of the land by an individual under a claim of right, an abandonment of the street will be presumed and the public right therein extinguished. -</p>

— Hon. W. I. Smith, Judge. Action to recover the value of certain personal property belonging to plaintiffs, alleged to have been converted by defendant, acting as sheriff, under a, writ of attachment in favor of the Council Bluffs Grape Growers’ Shipping Association. Judgment for plaintiffs on directed verdict. Defendant appeals. —

Appeal -from Polk Distrioi Court. — Hon. Charles Bishop, Judge. Action to foreclose a mortgage. There was a decree of foreclosure, and personal judgment in favor of plaintiff against the Hallers and the Shockleys, and they appeal.—

— Hon. H. M. Remley, Judge. Action to recover damages for personal injuries inflicted on plaintiff by a conductor in charge of one of defendant’s trains. Verdict for plaintiff for $50. From judgment on the verdict, defendant appeals. —

<p>Murder: arrest: degree of force allowed. An officer in 1 making an arrest is permitted to use no more force than to him, acting as an ordinarilyjprudent person would_under like circumstances,seemlT reasonably, and/apparently necessary to ¶ effect the arrest, and proof of the absolute necessity for the 1 forcé used is not required.</p> <p>Same. In the prosecution of an officer for murder, who struck on the head and fatally injured the deceased while making an 2 arrest, it was shown that deceased had an exceedingly thin skull, and there was evidence that force, which, if applied to an ordinary head would cause no serious injury, might have produces'a fracture of deceased’s skull, it was for the jury to determine whethe- defendant used more force in making the arrest than was permissible.</p> <p>Correction of Error on Rehearing. Where counsel has in fact and . 3 unintentionally overlooked an error in the original submission of a criminal cause in the supreme court, and it is one that may have misled the jury in reaching their verdict, the court will correct it, though raised for the first'time on a rehearing.</p> <p>Recalling Grand Jury. Where a grand jury is exeused“until the 4 second day of the next term, unless sooner called by the court’ ’ it may be recalled and legally investigate a cause at the same term.</p> <p>Challenges to Grand Jurers. That defendant is not given oppor5 tunity to challenge grand jurors is not ground for setting aside an indictment.</p>

— Hon. Ó. D. Wheeler, Judge. The defendant was accused and convicted of murdei in the first degree, and, from judgment of imprisonmenl for life at hard labor, appeals. —

— Hon. John F. Oliver, Judge, Dependant was tried upon an indictment charging him with the crime of seduction, and having been adjudged guilty, appeals.

<p>Appeal from, Warren District Oourt. — Hon. A. W. Wilkinson, Judge.</p> <p>On the 18th day of January, 1889, the defendants: Maxwell gave a mortgage on the land in controversy to-the defendant K >ynolds. This mortgage was foreclosed on the 13th day of November, 1900, and on the 22d day of' December, 1900, the land was sold under special execution to said Eeynolds. On the 3d day of March, 1891, the-plaintiff obtained a judgment against the Maxwells in Polk county, which was duly transcripted to Warren, county," March 10, 1891. An execution was issued on this judgment in November, 1900, which was levied on the land in question on thé 1st of December following, and on the 5th day of January, 1901, the land was sold thereunder to the plaintiff. September 21, 1901, the plaintiff paid in to the clerk of the district court of Warren county the full amount necessary to redeem from the Reynolds foreclosure sale, and on the 24th of December demanded a certificate of redemption of the clerk, and a deed of the sheriff on his certificate of purchase. Both were refused, and on the same day the sheriff issued a deed to Reynolds on his certificate. Thereafter the plaintiff commenced proceedings under section 3843 of the Code, asking an order directing the sheriff to issue a deed to him. The application was heard, the order made, and the dead issued. Afterwards the plaintiff began an action of forcible entry and detainer against the parties in possession of the land. The defendants answered, putting in issue the title to the land, whereupon the cause was transferred to the district court, and tried as an equitable action. There was a judgment for the plaintiff. The defendants appeal from both the order and the judgment, and by agreement the appeals are submitted together. —</p>

<p>Appeal from Cerro Gordo District Court. — Hon. J. F Clyde, Judge.</p> <p>The indictment charged the defendants jointly with' maintaining a liquor nuisance, in that they had established and were keeping, using, and maintaining a building and ’ place in Cerro Gordo county for the purpose and with the intention of selling, and in keeping and selling therein, intoxicating liquors, contrary to law. There was a trial to a jury, 'and a verdict of guilty. Judgment was entered imposing a fine as against each defendant, and for costs. The defendants appeal. —</p>

<p>Embezzlement: indictment: instruction. An indictment for 1 tlie embezzlement of funds, under Code section 4842, must charge that the corporation is a building and loan association, and where the state offers the articles of incorporation simply to prove the fact of incorporation, an instruction on the theory that the indictment is founded on section 1918 is error.</p> <p>Intent; instruction. An instruction relating to embezzlement 2 which omits the element cf fraudulent intent is erroneous.</p> <p>Evidence: inadmissibility. In a prosecution for embezzlement 3 the entries on a check stub and a cash book are inadmissible against defendant, where there is no evidence that he is responsible for or had knowledge thereof.</p>

— Hon. O. W. Vermillion, Judge. Deeendant was indicted, tried, and convicted of the crime of lewdness, and from the sentence imposed appeals.

<p>Murder: dying declarations: admissibility of : evidence. A. 1 dying declaration in -writing, to be admissible in evidence, must have been made and signed under the solemn belief ■ of' impending death, and its admissibility should be determined by the court from all the facts and circumstances. Facts considered, and held that the declaration was properly admissible.</p> <p>Same: waiver of objection. Where the court on objection 2 offered to exclude certain portions of a dying declaration and-defendant insisted that if any part was read he wanted it all read, any objection thereto was waived.</p> <p>Statements And Acts of Co-Defendant: when admissible. De8 fendant and another employe, with whom he was jointly indicted, were discharged and one D put in their place. There was evidence that during a quarrel with the foreman defendant had said he was going to whip the man put in his place for running him out of a job; also that defendant and the-other discharged employe lingered about the place where de- ' ceased was assaulted until late in the evening. Held, that evidence that the other employe had made similar threats was admissible to support the theory of the state that defendant and his associate had conspired together to make an assault upon D.</p> <p>Conduct of Defendant: roENTmcATiON of assailants: evidence. 4 Evidence of the conduct of defendant when in the presence of' his victim, together with what was said by the latter, is competent, and where defendant and his co-conspirator testify that the party assaulted did not identify them as his assailants, and generally as to what was said and done by him, it is competent for the state on rebuttal to show by other witnesses what was there said and done by the assaulted party.</p> <p>Evidence. The whole evidence in the case considered and summar5 ized in the opinion and held to support the -verdict of murder in the second degree.</p> <p>Malice: premeditation: evidence. Evidence on the question of 6 malice and premeditation held sufficient to warrant submitting to the jury the question of murder in the first degree.</p>

<p>Taxation of National Banks: government bonds. In determin1 ing the value of shares of stock in a national bank for the purpose of taxation, United States government bonds owned by the bank may be considered. "</p> <p>Same: discrimination against national banks. The method of S taxation of national banks is substantially the same as that provided for state and savings banks, and the fact that government bonds owned by a national bank are to be considered in estimating the value of its shares of stock for taxation, while a private bank is to be^assessed on its moneys and credits after making certain deductions, including government bonds owned by it, amounts to a distinction in the method of taxation and not a discrimination against national banks.</p>

— Hon. F. W. Eichelberger, Judge. Action to recover damages for a breach of contract. There was a trial to a jury, and a verdict and judgment for the defendants. The plaintiff appeals. —

— Hon. Robert Sloan, Judge. This action was brought to enjoin defendants from constructing a railway track across plaintiff’s land in pursuance of certain proceedings to condemn a right of way for such track from defendants’ coal mine to a connection with a railroad which runs through plaintiff’s land. A preliminary injunction was asked, but denied, and on final hearing plaintiff’s petit)ón was dismissed on the merits. Plaintiff appeals. —

<p>Deposit in Lieu of Bond: return of: appeal bond: release of 1 surety. Where defendant, upon arrest, makes a deposit of money under the statute equal to and in lieu of a bail bond, and upon conviction takes an appeal and furnishes the required bond, the deposit should be returned; and immediately upon return of such deposit the surety on the appeal bond may surrender the defendant and be released from liability, without, as a condition for his exoneration, procuring a return of a sufficient amount of such deposit to pay the costs of prosecution taxed to defendant. See Oode sections 5524, 5526 and 5530.</p> <p>Bail: deposit by third party. Oode section 5524 does not con-2 template the deposit of money by a third party in lieu of a bond,- and where this is done, defendant is not entitled to a discharge from custody, nor has the state or county any right to recover the same when diverted from the purpose for which it was deposited.</p>

— Hon. Frank W. Eichelberger, Judge. Action by plaintiffs, as a partnership doing business' under the name of H. A. Hoaglin, to recover back a sum' of money paid to defendant’s agent as a part of the pur-' chase price of a bill of goods ordered of defendants through said agent, which order the defendants refused to accept and fill.

<p>Wills: imperfect description of land: extrinsic evidenoe» 1 Where a will fails to name the county and state in.which the real estate devised is situated, and to name the township and range, but it appears that testatrix was the owner of parts of sections corresponding to those described in the will, extrinsic-evidence is admissible to complete the description and point-out the very property the will was intended to operate upon.</p> <p>Construction of Will. A will after disposing of certain personal 2 property then proceeded as follows; ‘ ‘Further I hereby give & Bequeath to My Daughter S. the sum of one dollar, The total amount of hir Shair to Be Paid hir within 3 years After my Decease By C, and further More All the following Lands-to wit the SE, SW in section 18 range 22, 40 acres & one-fourth of the NE NW in section 19, 10 acres when sold to Be Equally divided Between C & A. after All debts is Paid xxx. Further I hereby give and Bequeath to my. son O All of my Money Notes Mortgages Live Stock & Farm Implements to A. ” Held, that the devise of the two tracts of land was to the two-sons, and of the notes and mortgages to C, and of the farm machinery to A. •</p> <p>After Acquired Property: how passes. Where a will contains no-3 general devise of real estate, the only mention of that class of property being a specific reference to particular tracts owned by the testatrix at the date of the will, and there being no-residuary clause or devise into which, in the absenoe' of- a-specific grant the same might fall, land acquired by the testatrix after the date of the will passes as intestate property.</p>

Buchanan District Court. — Hon, A. S. Blair, Judge. Action in' equity to set aside a judgment and to restrain the sale of real property thereunder. Judgment for the defendants. The plaintiff appeals. —

Appeal front Shelby District Court. — -Hon. W. R. Green, Judge. Action at law to recover damages on account of breach of marriage contract, There was trial to jury, and verdict and judgment for plaintiff. -Defendant aiipeals. —