Volume 121 — Iowa Reports

CeRtiokaRI proceedings, commenced in this court, to review the rulings of the district court of Polk county, Iowa, with reference to a supersedeas bond in an action brought by W. A. McKee et al., against the Home Savings & Trust Company et al. for the appointment of a receiver. Neither party to that,action seems to have been satisfied with the rulings of the trial court with reference to the bond; and each sued out a writ of certiorari to review its action.

<p>Appeal from, Polk District Court. — HoN. C. P. Holmes, Judge.</p> <p>ActioN to enjoin defendants from proceeding to. the sale of certain real estate of plaintiff, situated in Polk •county, under execution issued from the district court of Appanoose county on a transcript of the judgment of a justice of the peace of that county. Decree was rendered for "the plaintiff, and defendants appeal.</p>

<p>Jurors: DIVISION OE COUNTY FOR JUDICIAL PURPOSES! CONSTrUC-1 TION OF STATUTES: AMENDMENT : APPEAL. All of tile Statutes in relation to a division of Pottawattamie county for judicial 'purposes are considered and it is held that the adoption of section 49 of the Code of 1897 did not repeal the law then in force providing for the holding of courts and drawing of grand and petit jurors in said county, since it is competent for the legislature to provide by a general act relating to the courts of the state that certain of its provisions shall apply to courts already established under a special act.</p> <p>Statute: existence and purposes: presumption. The General 2 Assembly is presumed to know of the existence and purpose of a statute.</p> <p>Repeal of Statute by Irpplication., Any reasonable construction of 3 a statute will be adopted to avoid a repeal by implication. •</p> <p>Adultery: election as to offense; continuous relation. In a 4 prosecution for adultery where the'proof shows a continued adulterous relationship extending over a given period of time, the state will not be required to elect to rely on any particular act of illicit intercourse, even though the indictment charges the offense to have been committed at a certain date.</p>

— HoN. JorixT. Scott, Judge. Suit for the partition of certain real estate and to quiet plaintiffs’ title to certain interests therein. Defendants denied plaintiffs’ ownership, and claimed title in themselves. Defendants Martha L. Xellar and Thomas Lewis each filed cross-petitions claiming title to certain interests in the land, asking for the reformation of certain deeds, pleaded an estoppel, and other matters, which will be referred to in the body of the opinion.

— Hon. A, W. Wilkinson, Judge. The actions above entitled were separately brought, but, as the same questions of law and substantially the same questions of fact are involved in each, they were tried together in the court below, and are submitted together in this court. Each is an action upon a non-negotiable bond, and to foreclose a real estate mortgage given to secure the same. The defendants in each case pleaded usury and payment in full.

<p>Insurance: examiner’s report: fraud: estoppel: pleading. 1 Where the medical examiner of an insurance company reports an applicant a fit subject for insurance, the company is estopped from setting up in defense to a suit on the policy that assured was not in the condition of health stated in the application and medical examiner’s report unless the company allege and prove that the examiner’s report was obtained by the fraud and deceit of the assured, under Code, section 1812.</p> <p>Construction of By-Laws: assessments: liability op insurer: 2 rights op beneficiary. Where the by-laws' of an assessment company provide several sources from' which death losses may be paid and do not specifically require an assessment for each loss, but state that a beneficiary shall be entitled to a sum equal to that realized from an assessment from all members in good standing at the death of insured, not exceeding th“ amount named in the certificate, an assessment is not a condition precedent to a determination.of the company’s liability; and in the absence of a showing by the insurer of the amount of such an assessment the beneficiary is entitled to a judgment for the face of the certificate.</p> <p>Denial of Continuance: absence op witness. Overruling a mo-8 tion for a continuance based on the absence of- a witness whose evidence would be inadmissible is not error.</p> <p>Premature Action : proof op death: additional proof. Where 4 an action on a policy of insurance is not brought for more than ninety days after the original proofs of death are received by the insurer, as required by its by-laws, the fact that the company requested additional proof on a specific matter not re- . quired by the by-laws, and which was furnished, did not render the action premature although ninety days from the date of the receipt of the adidtional proof had not elapsed.</p>

— Hon. W. F. BraNNAN, Judge. Suit in equity for the construction of the will of Andrew Weiler, deceased. The trial court found that a certain bequest made by the devisor to bis widow was of a fee, and that defendants took nothing under the will. Defendants appeal.

— Hon. Wm. G. Thompson, Judge. Action to set aside a tax deed on the ground that there had been no valid tax sale, and that redemption notice had not been given. Decree for plaintiff. Defendant appeals.

— Hon. Fhanelin C. Platt, Judge. ACTION by plaintiffs, as sole surviving heirs, against defendant, as surviving widow of A. B. Whitney, who died in 1900, to determine their respective interests in certain real estate of which said A. B. Whitney died seised. Decree for plaintiffs, from which defendant appeals,

Appeal -from Marshall District Court. — Hon. Obed Cas-well, Judge. • Action to determine the boundary line between the .parties, who are owners of adjoining tracts of land. Decree for defendants. Plaintiff appeals,

Jaiísís D. SMYtn, Judge. The appellant and others, whom he represents, are heirs of William G. Saunders, deceased, and he brings this action in equity asking for a construction of tbe twenty-third clause of tbe will of Mr. Saunders, which is as follows: “I will and bequeath to Barbary B. Fouche, in trust, the remainder of my estate whatever it may be, for the benefit of the poor, and to be given by her to such objects, as in her judgment is worthy of assistance, from time to…

<p>Judgment: collateral attack : lefective notice. A judgment 1 without jurisdiction is void and may be contested in any action in which a right thereunder is sought to he asserted, hut this rule does not apply where a judgment is entered on a'defective notice.</p> <p>Original Notice: substituted service. Where the return of service 2 shows that a copy of the notice was left with a son of defendant, unsupported by any allegation that he was a member of the family or that it was left at defendant’s usual place of residence, or that he was not found in the county, there is . an absolute want of service and no jurisdiction is required.</p> <p>Foreclosure of Mortgage: personal liability of cestui que trust. ■3 In a suit to foreclose a mortgage, service upon the trustee holding the legal title will probably sustain a decree of foreclosure, but will not authorize the trustee to appear for the cestui que trust so that a personal judgment can be rendered agajnst him.</p> <p>Name of Defendant: idem sonars. Where the service of an or-4 iginal notice is by substitution and names defendant as “ W. M. T. ” and judgment is rendered against “William M. T. ”, while his correct name is “Willis H. T.”, the rule of idem sonans is not applicable and a judgment is void.</p>

— HoN. S. M. Elwood, Judge. The plaintiff alleges that she is a resident of St. Just, in the county of Cornwall, England, and that she was there married to John Qasely in February, 1863; that some years after said marriage her husband deserted her without cause, and removed to the United States, where he assumed the name of John Wallace; that under such assumed name he acquired the title to, and became the owner of, certain real estate in Calhoun county, Iowa, which he…

— HoN. A. S. BlaiR, Judge. ActioN upon a bank check bearing date August 4, 1899, drawn upon the defendant bank for the sum of $191.10, signed by I. T. Bloom, and made payable by its terms to the plaintiff or bearer. It appears that prior to the date named there had been deposited in the defendant bank on open account to the credit of said I. T. Bloom the sum of $353.41.

— HoN. Geoege W Buekiiam, Judge. DeeeNDANT was indicted for an assault with intent to commit murder, and was convicted of the crime of an assault with intent to commit manslaughter. From the judgment and sentence imposed, he appeals

<p>Seduction: evidence: PRACTICE. On a prosecution for'seduction 1 instituted by the woman’s father it is not error to refuse to permit the woman to answer on cross examination whether she desired the prosecution of defendant, nor is it error to refer on the trial to the woman as the “prosecuting witness.’’</p> <p>Examination of Witness: leading questions. In a criminal pros-2 ecution permission to answer a leading question is not reversible error, where the witness in response to proper questions makes substantially the same answer.</p> <p>Seduction: evidence: instruction. In a prosecution forseduc-3 tion, where there is no evidence of any promise by the defendant, except the general promise of marriage and the. promise, made immediately preceding the intercourse, that he would protect her by marriage if pregnancy resulted, but there was evidence of acquaintance and courtship, an instruction that the jury might take into consideration attentions paid to prosecutrix, endearing names used, false promises and anything likely to break down her virtue, was not misleading.</p> <p>Seductive Arts: evidence. Where it appears that the relation of 4 lovers existed and that prosecutrix was justified in believing that defendant’s promise of marriage and to protect her in case pregnancy resulted from their intercourse was' founded on affection, the evidence of such promises amounts to a showing of seductive arts.</p> <p>Seduction : prior unchastity. Where it appears on a prosecution 5 for seduction that the prosecutrix, through love and affection and promise of marriage permitted the defendant to take indecent liberties and illicit intercourse resulted from passion thus aroused, it is for the jury to determine the question of prior nnchastity such as to prevent the intercourse constituting seduction.</p>

— HoN. A. W. Wiukinson, Judge. PeosecutioN for robbery, committed by defendant while armed with a deadly weapon. The jury returned a verdict of guilty, and defendant was sentenced to seventeen years in the penitentiary. Defendant appeals.—

— HoN. Jamies H. RothroCK, Judge. Action to recover for breach of an alleged contract. The facts will be found stated in the opinion. At the close of the evidence for plaintiff the court, on motion, directed a verdict in favor of defendant. Thereafter a motion for new trial was made by plaintiff, and this was sustained. From the order granting new trial, defendant appeals.

— HoN. T. M. Fee, Judge. ActioN at law to recover damages for personal injuries received by plaintiff, resulting from a fall of slate from the roof of an entry in the defendant’s coal mine. The defendant denied liability for the injuries, and on trial to a. jury plaintiff received the verdict on which judgment was rendered, and the defendant appeals.

— Hon. R. L. Pakrish, Judge. A will contest. Trial to a jury, and verdict and jutlg-enmt for the contestant. The proponents appeal. — >

<p>Larceny: jdror: oround op challenge. The relation of attorney 1 and client between a juryman and one assisting in a criminal prosecution is not ground for challenge, under Code, section 5360. ■</p> <p>Cross-Examination of Defendant: former felony. On cross ex~ 2 amination of a defendant in a criminal case h® may be interrogated as to a former conviction for a specific felony.</p> <p>Impeachment of Defendant: CROSS examination. In a proseen-3 tion for larceny the foundation for impeachment of a defendant may be laid by his cross examination in relation to • statements made by him which áre material to the issues.</p>

Appeal -from Harrison District Court. — HoN. W. JR. GkebNE, Judge.

District Oourt. — Hon. H. M. Towner, Judge. Action to recover indebtedness due plaintiff from defendant E. A. Olin. An attachment ,was sued out in the action, which was levied on forty acres of land formerly belonging to E. A. Olin, and.which had-been transferred to defendant G. A. Olin, such transfer being, as alleged, in fraud of plaintiff’s rights as creditors of E. A. Olin.

— Hon. R.. L. PARRISH, Judge. This action was brought by Oole against Laird to re. cover the purchase price of two windmills. The trial court directed a verdict for plaintiff, and defendant appealed. In.presenting the case to this court he reversed the names used in the title, contrary to the statute and to our rules, and has thus introduced confusion into a record, which, without this mistake, is not clear.

— Hon. J. F. Clyde, Judge. Action at law to recover oí the defendant $75 sub scribed toward the building of a church. Trial to the court, and judgment for the defendant. The plaintiff appeals.

— Hon.’A. W. Wilkinson, Judge. Action at law to recover damages for personal injuries received by plaintiff while passing over a sidewalk in defendant city. The trial court sustained a demurrer to plaintiff’s petition, and she appeals.

— Hon. J„ D. Gamble, Judge. ^ ' Action on promissory note. McCoy defended 'oh the ground that he was surety only, and that he had been discharged by acceptance of a new note, extending the time of payment without his consent. From judgment on a directed verdict against all the defendants, McCoy alone appeals.

<p>Appeal from, Keokuk Superior Court. — Hok. F. T. Httgbbs Judge.</p> <p>The plaiutiff alleges that he is the owner of a certain lot in the city of Ft. Madison, and that the state of Iowa owns and uses for penitentiary purposes certain land adjacent thereto, and that in November, 1899, he erected a fence on the boundary line between his land and that of the state, which was subsequently removed by the state, and that he was prevented from rebuilding the same. He asks that an injunction issue restraining the state or its officers from interfering with the erection of a fence on such.dRasLe1, tóánifrbm«,rgmqyiqg apy),peppgjk,_may build Aéreed. ípThe.' defpa|d4J$§£i^$^5, ^^ijip^^t^t^thp laüdtTCMredií-'tbfiíplaiftfe'iiffí^ftG.ff^tibe fepppqip^qpgptioijis the-;pfQpei'tys-©i')tJa6.state,íáni-feg^piip^lq, frpd^tjiai;, it(, baendn thwpdssessionbof-tbe-istatp^uniier,, glairp pf irtiple? for¡mioie than ,t.en .years.) j-jTRepp Yfas,$ a,„ jpidgment for the defendant. The Plaintiff appeals.</p>

<p>.Appeal from Lyon District Court. — How. Geo. W. Wake-field, Judge.</p> <p>Indictment for malicious mischief. Verdict and judgment of guilty, and defendant appeals.</p>

<p>Appeal -from Polk District Court. — HoNc A. H. McVey, Judge.</p> <p>CATHERINE E. Mally died in September, 1898, seised of certain lands, winch she disposed of in the second paragraph of her last will as follows: “Ihereby give, bequeath and devise and will to my son P. E. Mally all of my real estate wherever situated, of which I may die seised, possessed, or entitled to, subject however to the following conditions, to wit: My son P. E. Mally to be vested with the fee simple title to said land and to own the same in his own right in absolute fee simple title but the said P. F. Mally shall receive the same subject by him to my son William E. Mally the sum of fifteen hundred dollars ($15,00.00), and to my son Fredrick Mally the sum of six hundred dollars ($600.00) said sums to be paid within six months from the date from the probate of my last will and testament, and in the event that my said son P. F. Mally should die before I do, said real estate shall then go to his legal representatives, subject to the payment of said sum or sums hereinbefore mentioned, and they shall have the right to pay them, the same as my son P. F. Mally would have had.” Prior to her death, January 8, 1897, Emma Mally had obtained a judgment against the legatee William E. Mally for the sum of $500 and costs, and after testator’s death caused execution to issue against the devisee and P. F. Mally, to be garnished as a supposed debtor of the judgment defendant, and also said execution to be levied upon the said land, and the same to be advertised for sale. The plaintiff alleges that all of the judgment debtor’s interest in the testator’s estate was orally assigned to him long before the rendition of said judgment in satisfaction of a valid indebtedness owing to him by plaintiff, and for this reason he had no interest in the real estate subject to levy. The, sale was temporarily enjoined. The answer put in issue the alleged assignment. Decree was entered finding that there had been no assignment, and the judgment defendant had no interest in the land subject to execution, and the temporary writ of injunction was dissolved, and the petition dismissed. The plaintiff appeals.</p>

— Hon.’ John T. Scott, Judge. The Nash-Wright Company brought an action in the district court of Mahaska county against Johnson, Lane & Co., to recover $200, balance due on account, which account, as it appears, showed debits of about $7,000 for money advanced, interest thereon, and commissions, and credits of about $6,800, for grain received to be sold on commission.

— HoN. A. S. Blair, Judge. The plaintiff is the son of Henry Sauer, deceased. He alleges that in 1900 bis father advised him to purchase a farm adjoining land then owned and occupied by the plaintiff, and promised that, if he would do so, he would advance him $2,000 of the purchase price, upon which the plaintiff should pay him interest at the rate of six per cent, per annum during his life, and that nothing further should ever be demanded thereon.

— Hon. William Hutchinson, Judge. Action for damages resulting from an alleged breach of the covenants contained in a warranty deed. From judgment against him, the defendant appeals.

— Hon. T. M.. Fee, Judge. 4 Suit in equity to restrain the defendant treasurer from collecting a tax assessed, against plaintiff, as guardian of one John Schwahkey, insane, on property held by him as such guardian, on the ground that the property was and is exempt from taxation. Defendants filed a demurrer to the petition, which was overruled, and, electing to stand on their demurrer, a decree was entered as prayed, and defendants appeal.

<p>Appeal from Union District Court. — Hon. H. M. Towner, Judge.</p> <p>The opinion states the case.'</p>

— Hon. J. D. Gamble, Judge. Action in equity to set aside a default decree. There was a demurrer to the petition, which was sustained. The facts appearing from the petition are that on and prior to December 7, 1886, Hannah Fleming was the owner of the ■■south half of the southwest quarter of section 38, township 76, range 30, Adair county.

— HoN. JOHN T. Sooty Judge. Action at law to recover an amount due on an alleged^ settlement. Directed verdict for defendant, and plaintiff appeals.

— HoN. William Hutchinson, , Judge. Action at law to recover the value of brick sold to the defendant by one J. M. Starbuck. Starbuck manufactured the brick in question, and, in advance thereof, borrowed money of the plaintiff, and executed to him a mortgage thereon as security for his loans.

— HoN. O. D. Wheeler, Judge. On May 18, 1898, the county superintendent of Potta-wattamie county advised D. S. Frank by letter that he had appointed referees to assess the damages which he, as, owner, might sustain by the appropriation of an . acre of land, exclusive of highway, “located on the S. E. ¿ of the S. E. ¿of section 4 township 74, range 12 commencing about forty rods north of the southeast corner of said Section 4, on the highway running north and south on the…

— HoN. N. W.. Maoy, Judge. Action in equity -by plaintiff, as guardian of Tunis Van Horn, a person of unsound mind, praying that his said ward be decreed to be the owner in fee simple of certain real estate, that the defendant be decreed to have no-right or title thereto, and that title be quieted in said Tunis Van Horn. There was a decree in favor of plaintiff, and defendant appeals.

<p>Banks: insolvency: preferred claims. A preferred creditor of 1 an insolvent bank is not entitled to have his claim paid to the exclusion of general creditors out of a fund realized from an assessment.of the stockholders, under Code, sections 1882 and 1888, unless there are equities existing in his favor.</p> <p>Preferred Claims: payment: double liability fund. Where 2 the assets of an insolvent bank have been distributed to general creditors prior to the establishment of a preferred claim, equity will to that extent apply the proceeds of an assessment under the stockholders’ double liability act to the payment of such preferred claim in preference to general claims.</p> <p>Same. Where the general assets of an insolvent bank subject to 3 the payment of 'preferred claims are used to defray expenses in the collection of a double liability assessment against the stockholders, to that extent the proceeds of such assessment will be axiplied to unpaid preferred claims to the exclusion of general creditors.</p>

Polk District Court. — HoN. A. H. McYey, Judge. Action to establish and quiet plaintiff’s title to an undivided seven-tenths of an eighty-acre tract of land in Polk county, Xowa, and for a partition accordingly. . The district court denied the relief asked, and plaintiff appeals.

— HoN. H. M. Townee, Judge. ' ActioN for purchase price of a quantity of bay sold at public auction to the defendant. Trial to the court without a jury.- Judgment for plaintiff. Defendant appeals.

<p>Sale of Machinery: delay in delivery: waiver of damages. 1 Where a contract is made to furnish certain machinery within a specified time and there is a failure to perform in time, subsequent acceptance is not in itself a waiver of the right to recoup the damage for delay in an action for the purchase price.</p> <p>Same. Where plaintiff contracted to furnish machinery within a 2 certain time and failed to do so, hut defendant thereafter accepted the same and upon refusal of the plaintiff to allow any damage for the delay jiaid therefor, with a, knowledge that a third -party might claim damage for. failure to deliver in time, the defendant cannot in an action for the price of machinery subsequently purchased counterclaim for damages sustained by such delay.</p>

— HoN. Jaihes W. BolliNGee aNdHoN. P. B. Wolee, Judges. The plaintiff was married to Edward W. Lucas September 29, 1852, and lived with him as his wife until his death, which occurred December 17, 1900. On July 28, 1853, he and one Gilman Folsom acquired in severalty thirty-nine acres of land in Muscatine county. She alleges .her ownership of an undivided one-third of one-half thereof, and prays that title thereto be confirmed in her.

■Appeal from Kossuth District Court. — HoN. A. D. Bailie, Judge. ActioN to recover the value oí a mule killed, upon «defendant’s right of way by one of its passing trains. The opinion states the facts. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.

Appeal -from Boone District Court. — Hon. S. M. Weaver,Judge. ■' Action at lav? to recover damages for nuisance and to abate the same. Trial to a jury. Yerdict and judgment for plaintiff, and defendant appeals.

— Hon. H. M. JRemley, Judge. Action in probate on a promissory note. Trial to a jury, and verdict and judgment establishing the claim. The defendant appeals.

— Hon. W. F. CoNRADy J udge. Action at law to recover a sum alleged to be due plaintiff, a real estate agent, as commissions earned iri making a sale of real estate for defendants. There was a trial to the court, a jury being waived. Judgment was rendered in favor of defendants for costs, and the plaintiff appeals.

— Hon. W. G. Clements, Judge. Action at law to recover damages for personal injuries, sustained by plaintiff while in defendant’s service. Verdict and judgment for defendant, and plaintiff appeals. — ¡

<p>Husband and Wife: interest op either in other’s property. • X Under Gode, section 3154, it js only an interest which the husband or wife may have in the lands of the other which arises out of the marriage relation that is the subject of contract between them, and not an interest of either in the. lands of the other derived through third persons.</p> <p>Separation Agreements; rescission: sale,to husband op wipe’s 2 property. Although separation agreements between husband and wife are generally invalid in so far as they relate to the future, yet where one contains an independent agreement of the husband to purchase the wiie’s separate property, and the same is subsequently executed, it is valid, though the contract in other respects may he void, and is not rescinded by resumption of the marital relations in the absence of a return of the money paid. ,</p> <p>Rescission of Separation Agreement: RECOVERY of wife’s PROP-3 erty: estoppel. Assuming that an agreement of separation between husband and wife is void because indivisible, and so far as executory has been rescinded, yet where the wife, pursuant-to an agreement contained therein, has conveyed her separate property to her husband and received the price thereof, she is estopped from reclaiming the property until she has repaid the purchase money.</p> <p>Estoppel. A void contract or decree may be the basis of an 4 estoppel.</p> <p>Recovery of Property by Wife: former adjudication. In a suit 5 by the wife for divorce and alimony, the petition alleged that at the time of the marriage she owned certain property which the defendant obtained from her by fraud. The answer set up an executed separation agreement and a division of their property and also that defendant had paid plaintiff a specified sum for her interest in certain lands which she conveyed. The reply admitted the allegations of the answer, but alleged a subsequent resumption of conjugal relations avoiding the effect of the separation agreement. Held, that the decree for alimony in the divorce proceeding was. an adjudication of her property rights and a bar to an action to recover the land conveyed.</p>

— HoN. S. M. Weaver, Judge. ActioN by plaintiff, as executrix of the estate of her husband, M. JB. Hyatt, deceased, to recover compensation for services rendered by deceased, on the appointment of the district judge, in proceedings to disbar certain attorneys. Defendant demurred to plaintiff’s petition, and, when overruled, defendant stood upon bis demurrer, and judgment was entered for the plaintiff, from which judgment defendant appeals.

— Son. W. Q. Clem--eNts, Judge. Action to construe a will. A demurrer to the petition was overruled, and a judgment was rendered on the pleadings for the plaintiff. The defendants appeal.

<p>Appeal from Woodbury District Court. — Hon. F. H. Gay* nok, Judge.</p> <p>Action to quiet title to land in plaintiff. Decree aa prayed, and defendant appeals.</p>

— HoN. T. M. Fee, Judge. Located in Pleasant township, Monroe county, is the village of Coalfield, containing a population of about two hundred people, mostly colored, whose chief industry is that of mining coal. In December, 1899, smallpox broke out, and on the 14th of that month plaintiff was employed by the board of health of the township to vaccinate all unable to pay therefor themselves.

— Hon. W. N. Treioii-leR, Judge. The defendant is a city in this state, of the second class. The plaintiff is a corporation organized under the •laws of this state, and engaged in maintaining and operating a system of waterworks in said city, supplying the city with water for public purposes, and private consumers for domestic and other purposes.

<p>Taxation: listing of property by agent: facts essential to 1 'such requirements. To authorize an assessor to require ono person to list for assessment'<the property of another under the provisions of Oode, section 1320, there must appear (l) agency of . the party listing; (2) possession or control hy the agent of the money, notes or credits of the principal; (S) such possession or control must be with a view to the pecuniary profit of the agent or principal.</p> <p>Same: evidence consideeed. Where a corporation has in ita 2 possession notes and mortgages executed to it hut assigned to third persons under written assignments providing that the same shall remain with it for safe keeping and collection, and shall have a certain per cent, of the interest as compensation for such care and collection, it is an agent within the meaning of Code, section 1320, and may be required to list such property for taxation.</p> <p>Liability of Agent for Taxes: lien upon PROPERTY. Where an 3 agent has posession of his principal’s property which is subject to taxation, with a view to a pecuniary profit to both, he is personally chargeable with the taxes thereon and has a lien upon the property to reimburse him.</p> <p>Agent Not Required to List Property of Resident: construction 4 op statutes. A resident agent is only required to list for taxation the moneys and credits in his possession and control which are owned by non-residents of the state, as the law contemplates that residents of the state shall list their moneys and credits where they reside although the same may be in the possession of an agent. This construction harmonizes the apparent conflict in Code, sections 1312, 1313, 1350, 1360 and 1320.</p> <p>Taxation: listing op property in special charter cities: duty 5 op agent. Where a city charter provides in general terms for the levy and collection of taxes on all taxable property but fails to specifically designate whose duty it is to list the property, or upon whom the obligation to pay the tax rests, it by necessary implication becomes the duty of the owner so to do, and this includes a resident agent having possession and control of taxable property of a non-resident. Code, section 1011, also makes it'the duty of such agent to list the property of his non-resident principal.</p>

<p>Appeal from Crawford, District Court. — Hon. S. M. Elwood, Judge.</p> <p>AotioN to recover damages for personal injuries received by plaintiff while riding on horseback along a highway adjoining defendant’s premises. The injuries consisted in the cutting and scraping of plaintiff’s hip and ankle by a barbed wire fence, maintained by defendant between his premises and the highway, and which, it is contended by plaintiff, was set out into the highway, and not on the true division line. At the conclusion of plaintiff’s evidence, the coart directed a verdict for the defendant, and from - judgment thereon plaintiff appeals.—</p>

District Court. — HoN. W- S. Ken~ YON, Judge. On April 4, 1900, Martha. J. Lynn filed her application for appointment as administratrix of the'estate of William Dilts, in which slie alleged he was a resident of the county, llied intestate October 3, 1804, Jett no personal property save what passed into the bands of his widow, and that the object of the application was to complete the title to certain real estate left by him.

— Hon. W.- G. Olem- • ents, Judge. Garnishment proceedings to subject the purchase price of a homestead owned by George W. Stephens and Hannah Stephens, his wife, now deceased, to the payment of a judgment obtained by one Kinzer against William W. Stephens, a son of George W. and Hannah Stephens. The trial court held the garnishees liable, and they appeal.—

— Hon. F. R. Gay-nor, Judge. The defendant was the treasurer of Sioux City, Iowa, and the plaintiff furnished his official bond, in the sum of. $100,000.

<p>Appeal -from, Calhoun District Court. — 'Em. S. M. Eh* wood, Judge.</p> <p>Action by plaintiffs, who are real estate brokers, to recover a commission on real estate. Trial to the court, and judgment for plaintiffs. Defendant appeals.—</p>

— HoN. J. T. Scott, Judge. Ok August 12, 1901, M. B. Wise made an assignment for the benefit of his creditors.

— Hon. G. W. Burn-ham, Judge. It appears that in August, 1895, one W. D. Rambo was employed and acting as an agent for the defendant company to solicit applications for life insurance, and that his authority was limited to such purpose. During the month named he secured an application from the plaintiff, which, in form, called for the issuance of a life insurance policy for $5,000 on the so-called “income life plan,” with ten year distribution.

— Hon. W. F. Oonead, Judge. Action in equity to quiet plaintiff’s .title to land in Polk county. Decree dismissing the petition, and plaintiff appeals.

— Hon. W. S. Kenyon, Judge. Plaintiffs, as successors in interest and devisees under the will of Anthony Robertson, deceased, brought this action to have a conveyance of land made by said Anthony Robertson a.nd wife to defendant W. R. Robertson declared to be a trust, and that they be adjudged to be the owners of the undivided two-thirds of said real estate. Defendants admitted the conveyance, but denied its alleged trust character.

— Hon. Obed Cas-well, Judge. Plaintiffs brought action against defendant Orary, aided by attachment, and served notice of garnishment on the Marshalltown State Bank, as a debtor of Orary, holding funds of his on deposit. Judgment was rendered in this action in favor of plaintiffs, for $520 and costs, and it was agreed that the garnishee had funds of Orary on deposit to the extent of $767.90.

— -HoN. W. G. Thompson, Judge. IN September, 1894, the defendant D. P. Huston recovered a judgment by default against the plaintiff on a policy of fire insurance issued to him. The application for such policy was taken by one W. H. Gordon, whose office-was in Olin, in Jones county.

<p>MuCder: challenge of juror foe cause: evidence. On a pros-1 ecntion for murder the defendant’s challenge of a trial juror should be sustained where his examination shows that he resided in the same community as deceased, had heard and discussed the circumstances of the alleged crime, had read the testimony against defendant and believed it to be true, and admitted he was not unprejudiced, notwithstanding the fact that on cross-examination he expresses a belief in his ability . to render an impartial verdict.</p> <p>Conspiracy: prima facie case: acts of co-conspirator. In a 2 prosecution for murder, the result of an abortion, proof that the party guilty of criminal intimacy with deceased, was at defendant’s sanitarium ana had a conversation with him a short time prior to the abortion and afterward visited deceased at the sanitarium, is sufficient to make a prima facie case of collusion and render admissible against defendant, evidence of subsequent acts, writings and statements of such person made in pursuance of the common unlawful purpose.</p> <p>Proof of Conspiracy: declaration of co-conspirator. A con-8 spiracy must be shown by evidence outside of the statements sought to he proved as having been made by a co-oonspirator, before the jury may rightfully consider such declarations.</p> <p>Statements of Co-Conspirator; when admissible. Statements 4 made by one co-conspirator before the conspiracy was formed or after it lias been accomplished are not admissible against • another co-conspirator.</p> <p>Conspiracy: how determined. The question of a prima facie o case of conspiracy, for the purpose of admitting the declarations of co-conspirators, is for the court, but a final determination of'the fact, of conspiracy is for the jury, under proper instructions.</p> <p>Evidence of Prior Abortion. In a prosecution for murder, the fi result of abortion, evidence that defendant’s co-conspirator, prior to the claimed conspiracy, sought to procure another physician to commit a prior abortion on deceased, is inadmissible against defendant.</p> <p>Evidence of Other Abortions. Evidence that defendant committed ■7 abortions upon other persons is not' admissible.</p> <p>V/eight of Evidence: by whom determined : instruction regarding. 8 The relative weight and value of evidence, whether circumstantial or direct, is for the jury to determine, and it is error for the court in its instructions to draw a comparsion between the two classes of evidence to the disparagement of either.</p> <p>Instruction : conytction or acquittal. An instruction admonish-9 ing the jury that a failure to perform its duty by which a crime, if one is shown, may go unpunished and a criminal escape the penalty of his act and that it cannot be corrected by a new trial, is error.</p>

<p>Vendor and Vendee; defective title, when belief will be 1 denied. Where suit is brought by a vendee against the vendor, based on defects in the title growing out of irregular probate proceedings and the vendor remedies the defects before trial, the plaintiff is not entitled to relief on that ground.</p> <p>Guardian’s Deed: pbobate jurisdiction: second deed: Where 2 a guardian’s deed to real property has been defectively executed, the probate court lias jurisdiction to order a new deed od the application of the guardian, although the same involves equitable considerations.</p> <p>Second Guardian’s Deed: bond. The fact that the clerk of court 3 . demands of the guardian a new bond on- the execution of h second deed does not affect the Validity of the proceeding.</p> <p>Taxation of Costs: confusion of causes of action. Where 4 plaintiff having cause for complaint has confused an action to quiet title with one in the nature of breach of warranty, it is proper that each party be required to pay his own copy and attorney’s fees, and defendant all other costs.</p> <p>Taxation of Costs. In an action to quiet title no costs can be 5 taxed against defendant, under Code, section 4226, on whom notice has not been served.</p> <p>Foreclosure of Mortgage: costs. Where a cross bill in a suit to 6 perfect a title asks foreclosure of a mortgage which might have been refused prior to a perfection of plaintiff’ title, equity will permit a decree of foreclosure without costs and attorney’s fees.</p>

— HoN. A. S. BlaiR, Judge. The plaintiff, who was born in December, jSSO, purchased four lots of defendant May I, 1899, for which he agreed to pay $650 — $42 in cash and $7 per month thereafter — deferred payments to bear «interest at the rate of sis per cent, per annum. Six payments were made, and he then notified defendant that he would pay no more. The defendant offered to return the $84 paid, with interest, which plaintiff refused.

— Hon. O. D. Wheeler, Judge. PROCEEDINGS to compel the' payment of a collateral inheritance tax, under Code, section 1467, upon certain- real estate situated in Montgomery county. The lower court held the property to be subject to the payment of the tax, and the administrator of the estate of the deceased owner appeals.

<p>Quotient Verdict. The fact that each member of the jury stated 1 the amount to -which he thought the plaintiff entitled and divided the sum by twelve to get the average did not constitute a quotient verdict, wliqre the sum so found was not in fact their verdict and there was no agreement that it should be.</p> <p>New Trial: remittitur. It is not error to refuse a new trial on one 2 count of the petition, the plaintiff, pending the motion, having remitted the amount rceovered thereon. .</p>

<p>Appeal from Linn District Court.— Hon. W. G. Thompson, • Judge.</p>

— Hon. G. P. Holmes, Judge. This is an action in equity to have a deed of conveyance absolute in form declared to be a deed of trust, and for general relief. The defendants answered, denying the trust alleged, pleading the statute of limitations, and presenting a counterclaim upon which judgment is demanded in the event the trust relation alleged shall be found to exist and it is further found that the plaintiff’s action is not barred by the statute.

— Hon. James W. Bol-linger, Judge. Appeal from a judgment of the district court confirming the assessment for taxation of certain moneys and credits in the hands of the plaintiffs.

<p>Appeal from Hurriboldt District Court. — Hon. W. B. Quae-ton, Judge.</p> <p>Action for an accounting and for the cancellation of a mortgage. In October, 1892, one McOomb borrowed of the defendant association $2,000, giving his note therefore, and securing it by a mortgage on real estate and by pledg. ing twenty shares of stock in the association. This real estate and stock was afterwards transferred to the plaintiff who assumed the debt. By the terms of the contract the borrower agreed to pay $12 per month dues on his stock and all fines, and the further sum of $12 per annum , and $10 interest on the loan each month. The premium was reduced to $8 per month April 1, 1899. $1,080 was paid on dues, $978 on premium, and $895 on interest. The defendant by cross-petition asked a foreclosure of the mortgage and a judgment for the sum found due thereon. There was a decree for the defendant association for a part of its claim. Both parties appeal. The association will be designated the “appellant.”</p>

— Hon. Z. A. Ohuroh, Judge. Action upon a written contract for the purchase of a mowing machine. Defendant admits the signing of the contract and a tender of the machine, but avers that the contract was not delivered to plaintiff, and further pleaded that his signature to the instrument was obtained by fraud. On these issues the case wast tried to a jury, resulting iu a directed verdict for the plaintiff. Defendant appeals.

— How. Z. A. OhuROH, Judge. Action for alienation of affections of plaintiff’s wife. Verdict for plaintiff for $1,200 damages, from judgment tbereon, defendant appeals.

—Hon. P. B. Wolee, Judge. According to the petition a judgment had been entered against Louisa A. Washburn in 1887. Execution issued thereon September. 27, 1898, and was levied on a house and lot in Muscatine owned by her. Sarah E. Lohr was served with notice of garnishment on the same day, and made answer to the officer serving the notice.

— Hon. Robert SloaN, Judge. ActioN for the value of a horse alleged to have been billed by defendant .at a point where it hud the right to fence, but did not; also through the negligence of its employes. The highway crosses the defendant’s right of way at an acute angle. The north cattle guard is sixty-eight feet from the center of the crossing. Trestlework over a ravine forms the south cattle guard, and is ninety-one feet from the same point.

<p>I nsuranee: BREACH OF CONTRACT : WHERE action may be brought. 1 Under Code section 3499, an action for a breach of contract of insurance may be brought in the county in which the contract was made, and is not confined to action for loss under policies of insurance.</p> <p>Contract of Insurance: agency: ratification. Plaintiff as-2 signed certain shares of stock to an agent of defendant to be used in procuring a policy of insurance. Subsequently the president of the company wrote plaintiff in response to an inquiry as to the agents authority that he was defendant’s agent and that whatever he did “would be all right. ” Held, that the same amounted to a ratification of the agent’s contract.</p>

— Hon. W. F. BRANNAN, Judge. Suit in equity to enjoin defendants from assessing, leyyiüg, or collecting a cigarette mulct tax, upon the property of plaintiff Tabor, which was used by plaintiff Hodge, for the purpose of retailing tobacco and cigars, on the ground that the provisions of the “mulct law” authorizing such tax are unconstitutional and void as applied to an owner of property which has been leased to another.

— Hon. M. A. Egberts, Judge. Action for the forcible detention of real estate. Trial <¡o the court, a jury being waived. Judgment in favor of ■defendants, and plaintiff appeals.

<p>Jurisdiction: not acquired by appeal. Where a Justice of the-1 Peace had no jurisdiction, the district court on appeal does, not acquire it.</p> <p>Jurisdiction of Justice: concealment op partnership funds. A 2 justice of the peace has jurisdiction of an action hy one partner-against the other to recover one-half of a sum belonging to-the partnership but fraudulently concealed and not taken into-account in the settlement of their partnership affairs.</p>

<p>Appeal from, Harrison District Court. — Hoh. A. B. Thor-Nell, Judge.</p> <p>ActioN in equity to enforce specific performance of contract to convey land. Decree for defendant, and plaintiff appeals.</p>

— Hon. William G. Thompson, Judge. Action at law to recover damages resulting from defendant’s failure to promptly deliver certain shipments of eggs. The trial court directed a verdict for the defendant, and plaintiff appeals.

<p>Adultry: definition. A married man having sexual intercourse 1 with an unmarried woman is guilty of adultery both at common law and under Code section 4932.</p> <p>Indictment; names and testimony of witnesses. The minutes of testimony taken by agreement on a preliminary examination, which are submitted to the grand jury, must be returned with an indictment and the names of the witnesses giving the same endorsed thereon, or the indictment, on motion, will he set aside, under Code section 5276 et seq., provided there is a showing that such testimony is material.</p> <p>Continuance: absent witnesses : cumulative evtdenqe. Ordin-3 arily a continuance, in a criminal case, will not be granted on account of absent witnesses, where it appears that the testimony sought is merely cumulative, but where the direct evidence on the question at issue is in conflict and might be determined by the number of witnesses, or where the defense relies npon breaking down the credibility of the state’s witnesses, a fair trial may require a continuance although the evidence sought is cumulative.</p> <p>Adultery: election OB'act belied on. On a prosecution for adul-4 tery, where the evidence discloses but one adulterous act, no further election as to the act relied upon, is required by the state.</p> <p>Notice of Additional Testimony: service on attorney. When, 5 after diligent search, the defendant cannot, be found, notice that the state will produce on the trial, witnesses who were examined before the committing, magistrate but whose testimony was not returned with the indictment, may be served on his attorneys.</p> <p>Evidence: admission op photograph. In a prosecution for adultery, 6 a photograph of defendant’s alleged paramour is admissible to identify her as the woman with whom defendant lived in another state, though taken several years before the trial.</p> <p>Evidence: letters. Where letters are offered in evidence, which 7 are in part competent, but contain as well, statements of opinion by the writer, an objection to the entire letter should be overruled.</p> <p>'Evidence: locus deleoti. Where it was shown that the defe'n-8 ant’s paramour gave birth to a child outside of the county in which he was prosecuted, an instruction that such fact might be considered by the jury, in view of the other evidence in the case in determining whether the crime charged was committed within the county, was not error.</p> <p>Misconduct of Prosecuting Attorney. A presenting attorney may, 9 in argument, call the jury’s attention to the fact that certain evidence is uneontradicted, although the accused is the only paity who could contradict the same, and not be within the prohibition of the statute.</p> <p>Same. The expression of opinion, merely, by a prosecuting attorney 10 in argument, as to wha,t a witness would have the right to do in the future, which does not pertain to the result of the trial, is not such misconduct as will justify a reversal.</p> <p>Misconduct of Juror. Evidence considered and held to show no 11 misconduct on the part of a juror.</p>

<p>¡Deeds: delivery to stranger : ■ control by grantor. To pass a 1 present title by a deed deposited with a stranger to be delivered npon the death of the grantor, the deposit must be without reserved power or right to control the same, but the physical power of the grantor to recall or his mental power to alt°r the same will not necessarily defeat the conveyance. The intent of the grantor is the controlling question. Evidence considered and held to show an intention to pass a present estate.</p> <p>Deeds: consent to substitution. Where the grantee in an abso-2 lute deed consents to its destruction and the substitution of a trust deed in its stead, she cannot insist that title passed under the first deed, although it had been delivered to a third person for her benefit.</p> <p>Acceptance of Deed; waiver. The acceptance of a trust deed to .8 property is a satisfaction of an agreement to convey aosolutely, and a waiver thereof.</p> <p>.Acceptance: evidence. Evidence that a beneficiary has knowl-4 edge of and assents to the execution of a trust deed and that the trustees accept the same, is sufficient to show acceptance.</p>

<p>Accident Insurance: mis-statement in application. A mis-state-1 ment in an application for membership in a fraternal accident association that the assured was a member of another fraternal order, a condition precedent to membership in the insurance association, is immaterial, where it appears that the agent taking the application and the assured were fully advised of the facts and the fraternity was not misled.</p> <p>Accident Insurance: validity op certificate!: condition pre-2 cedent : authority oe AGENT. The articles of a fraternal insurance association provided as a condition precedent to membership therein that the applicant must be a member of another order in good standing. An agent of defendant accepted plaintiff’s application, knowing that this condition had not then been performed, but the same was subsequently done in accordance with their understandng and defendant1 s certificate of membership issued. Held, that the transaction amounted to an agreement that defendant’s certificate should be in force upon compliance with the condition precedent; that the agent had authority to make the same and the defense that defendant’s certificate was void from the beginning was without merit.</p> <p>Accidental Injury Defined. Where death results from . disease 3 which follows as a natural though not necessary consequence of a physical -injury which is accidental, it is deemed the proximate result of the injury and not of the disease, and within the requirements of a policy that death must result solely from accidental injury.</p>

— HoN. P. B. Wolee, Judge. This is an appeal from the action of the defendant board of review whereby it increased the appellant’s assessment of moneys and credits for the year 1899, $28,000. The increased assessment was based upon certain land contracts which are in fact mortgages.

Clinton District Court. — Hon.W. F. Brannan, Judge. Action to recover wages assigned to plaintiff by one Charles Brown, who at the time of the assignment was, and fer some time thereafter continued to be, au employe of the defendant. There was an answer for defendant in several divisions.

<p>Appeal from, Dubuque District Court. — How. Feed O’Donnell, Judge.</p> <p>The action is one to recover for an alleged personal injury, and for damage to property. To the original petition filed by plaintiff a demurrer was interposed, the grounds thereof being, in effect, that the facts alleged do not state a case of actionable negligence. Upon hearing, such demurrer was sustained. Plaintiff took leave to amend, and thereafter filed successively three amended and substituted petitions. Each of these in turn was stricken from the files on motion of defendant, the reason therefor in each instance being that the averments did not differ in legal effect from the averments of the original petition. Following the ruling upon the third and last motion, the plaintiff elected to stand on his petition, and, refusing to plead further, judgment was rendered against him for costs. From this judgment, plaintiff appeals.</p>

<p>Taxation; practice: amended abstract. An amended abstract 1 filed after the arguments have heen concluded will not be considered, the matter not being jurisdictional.</p> <p>Amendment: motion to strike: review on appeal. Where-2 there is no ruling by the trial court on a motion to strike an amendment to a pleading, the motion will not be considered on appeal; and where the decree based upon such amendment is treated as a ruling, the propriety of allowing the amendment will not be considered in the absence of an exception or assignment of error.</p> <p>Discovery of Omitted Property: reasonableness op contract. 3 The contract of a board of supervisors made prior to the passage of Chapter 50, Acts 28th General Assembly, agreeing to-pay for certain services rendered and expenses incurred in. discovering omitted taxable property, a sum equal to one-half of the tax thus recovered is not void because providing an unreasonable compensation for the service.</p>

<p>Appeal from Polk District Court. — Hon. W. F. Costead, Judge.</p> <p>Indictment for burglary. The defendant, having been adjudged guilty, appeals.</p>

Polk District Court. — Hon. O. P. Holmes, Judge. The Mason Hand Lathe Company, being indebted to the plaintiff, and desirous of borrowing more money, executed to W. E. Mason its note of $3,000, dated June 15, 1894, payable in one year, with interest at eight per cent, per annum, and to secure payment executed to him a chattel mortgage covering its property,.

— HoN. S. F. Peouty, Judge: Action to enforce a laborer’s lien. There was a demurrer to the petition, which was sustained. Plaintiff elected to stand on his petition, and refused to plead over. Judgment in favor of defendant for costs, and plaintiff appeals.

<p>Burglary: aiding and abetting: instruction. Where one is 1 jointly indicted with another for the commission of an alleged offense, he may be convicted of aiding or abetting any other person or persons not named in the indictment.</p> <p>Burglary: proof of CO-defendant’s guilt. Where one is jointly 3 indicted for breaking and entering a railroad car he may be convicted, although it is not shown that his co-defendants participated in the criminal act.</p> <p>Principal: accessory. One who is present simply aiding' and 3 abetting others in the commission of a crime by standing watch is not an-accessory but a principal.</p> <p>Evidence: particular acts: character: conversations: 4 In a prosecution for burglary, evidence of independent criminal acts or of defendant’s general disreputable character, or of conversations with defendant some time prior to the crime charged, is not admissible. .</p>

Original certiorari proceedings in this court to review the action of Hon. J. H. Rothrock, Judge, in discharging one •J. T. Chadima from a charge of contempt in violating a writ of injunction issued against him; and also an appeal from an order dissolving a temporary writ of injunction issued in the second case above entitled, of “Young, appellant vs. Chadima Bros. ”

— Hoa. James H. Rothrock, Judge. ActioN upon an open account. The defendant Blotz defaulted. The defendant Rooney appeared, and, before pleading, filed a motion, supported by affidavit, setting forth that he was a nonresident of Linn county, in which county the city of Cedar Rapids is situated, and asking to have the place of trial changed to the district court of Linn county.

— Hon. W. B. QuaRtoN, Judge. Action to recover damages for personal injuries received by plaintiff while riding as a passenger on defendant’s train.

Lee District Court. — Hon. H. Bane, Judge. - The plaintiffs own lot 12, in block 168, in the city of Keokuk, and defendant lot 11 adjoining, in the same block. The petition, filed June 14, 1897, alleged that defendant was, and had been for some time, in the wrongful possession of a strip three feet wide and one hundred and forty feet long, along the west side of lot 12, and prayed that she be ejected, and for damages.

— Hoh. J. R. Whitaker, Judge. Plaintiee is owner of S. S. W. £ of section 10, and N. $ N. W. £ of section 15, township 82 N., of range 25 W. of the fifth P. M. The defendant owns the N. -J S. W. ¿ of section 10. A run, known as “Big Creek,” nearly north and south, passes through both farms to the south.

<p>Appeal from Lirin District Oourt. — HoÑ. H. M. Remley, Judge.</p> <p>Action to recover damages for the death of the plain, tiff’s intestate. There was a directed verdict for the defendant, and the plaintiff appeals.</p>

<p>Appeal from, Jones District Court. — How. H. M. Remley, Judge.</p> <p>ActioN upon two promissory notes — one executed May 30, 1896, by Fishwild & Williams, alleged to be composed of R. Fishwild and Roy Williams, and by R. S. Williams, surety, to L. H. Fratt, for the sum of $1,500, due in one year, with interest at seven per cent.; and one executed May 10, 1898, by.Fishwild & Williams and E. S. Williams to L. H. Pratt, for the sum of $1,500, due in one year, with interest at eight per cent. It is conceded that the second note mentioned was given as a renewal of the first note. Such first note was not wholly paid thereby, however, there being interest due and unpaid. Before the commencement of this action, R. S. Williams died testate, and the appellant C. F. Kimball was duly appointed executor. The said notes were filed with said executor as a' claim against the "estate of said E. S. Williams. Thereafter said executor, assuming that the liability of his testator, on said note was that of a surety only, served notice upon this plaintiff, as provided for in section 3064 of the Code, requiring her to bring suit on said notes as against the principal makers, or allow him (said executor) to do so. Plaintiff thereupon gave said executor authority to bring suit in her name, and this action was begun accordingly, the said O. F. Kimball, as an- attorney, appearing on behalf of plaintiff. The defendant firm of Fishwild & Williams, and E. Fishwild,. one of the members thereof, answered, alleging that said E. S. Williams did not occupy the relation of a surety on the said note last executed, but that at the time said note was executed and delivered he, the said E. S. Williams, was a silent or dormant partner in the firm of Fishwild & Williams, owning a one-half interest in said firm. For a further defense it is said that the said E. S. Williams, being responsible on a large " amount of negotiable paper owed by said firm, and the -defendant Fishwild for all debts and deficiencies owing thereto by said Roy Williams, his son, and the said Roy being largely overdrawn in his account, the said E. S. Williams, with the consent of said firm, took and received the one-half interest in the business and property of the firm, and sold the same to one Shaffer for the sum of $6,000, which sum was paid to him, said E. S. Williams, in hand; that at the time thereof it was agreed by said E. S. Williams that in consideration that said Fishwild would accept said Shaffer as a partner, and waive his right to have the affairs of the partnership wound up, he, the said E. S. Williams, would, upon making such sale to Shaffer, pay one-half of all the debts then owing by said firm, including the notes here in suit, and release the said Fishwild from liability as to such one-half. It is the prayer of the answer that the judgment rendered on said notes be a joint judgment as against said firm and said K. S. Williams, and that said firm and the said Fishwild be held liable for one-half only of such judgment, and the defendant E. S. Williams or his estate be held for the other half. On the day said answer was filed the plaintiff, appearing by W. I. Chamberlain as her attorney, and. the defendant firm, jointly moved the court to compel 0. F. Kimball, executor, to come in as a party defendant, as. provided for by section 3066 of the Oode, and on the same-day said executor did appear as such, and filed answer-admitting the execution of the notes, and that E. S. Williams signed the same as surety; averring want of knowledge as to whether the notes are unpaid; and praying-judgment establishing his relation to said notes as that of a surety only. Thereafter there was filed in the name of plaintiff a reply denying that E. S. Williams was a partner in said firm; denying the alleged agreement on the; part of said E. S. Williams to pay debts of said firm;; alleging that such agreement, if made, was not evidenced, by writing as by law required, and was without consideration, and void.; that no claim of the character now made-by defendants was filed against the estate of said E. S. Williams within one year, and the same is therefore-barred. There was a trial to jury, resulting in a verdict-finding for plaintiff as against all defendants, and finding-the estate of K. S. Williams to be liable for one-half the-debt, and said firm and E. Fishwild and Eoy Williams, members thereof, liable for the other half of the debt. Judgment was entered against all defendants except C. F. Kimball, executor, for the amount of the verdict, and the amount thereof was allowed as a claim against said estate, “and said estate is liable upon said claim as principal for one-half of said amount and as surety for the other half; that the other defendants are liable on said judgment for one half the amount as principal, and as surety for the other half of the same.” From such judgment the defendant O. F. Kimball, executor, appeals.—</p>

— HoN. H. M. Remley, Judge. This is an appeal based upon a ruling sustaining a demurrer to the petition.

— Hon. Z. A. Ohhroh, Judge. On the 7th day of July, 1899, O. H. Weaver entered into a contract with the independent district of Odebolt to “provide all the materials and perform all the work mentioned in the specifications or shown in the drawings” of the architects in the construction of a school house.

<p>Actions to Set Aside Tax Deeds and to Redeem: incompetent OWNER : RIOHT OP HEIRS TO REDEEM: EVIDENCE OP INCOM-1 petenoy. The test of mental capacity is whether the person possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which he is engaged; and one may be thoroughly insane on one subject and at the same time capable of transacting business on all others. Tested by these rules the evidence in this case, which is a suit to set aside tax deeds and redeem the land from, tax sales by the heirs of the owner, is held sufficient to show that the owner was insane from a time prior to the sales until his death, and the heirs are entitled to redeem upon .proper showing and within the required time.</p> <p>Vacation of Decree Against Insane Person : guardianship. A de-3cree quieting title in a grantee to lands purchased at a tax sale against an owner in fact insane, where no appearance was entered and where no guardian was appointed, is erroneous, even though there had been no judicial determination of the defendant’s insanity, and his heirs may maintain an action to vacate the same if brought within proper time.</p> <p>Tax Sale, insane owner: commencement of action to redeem: 3 service of notice. An action by the heirs of one who was insane to redeem from a sale lands sold for taxes, and to vacate a judgment quieting the title thereto in the grantees in the tax deeds, must be commenced within one year from the death of such insane owner, and a delivery of the original notice to the sheriff without actual service within the year is insufficient for that purpose; Code section 3533 having no application to cases arising under a statute creating the cause of action and also providing that the right shall be exercised within a fixed time.</p> <p>Vacating Decree to Quiet Title: insane owner: procedure. A 4 proceeding to vacate a decree quieting title in a grantee in a tax deed as against an insane owner, who makes no appearance and for whom no guardian is appointed, and which is instituted by his heirs, under Code section 3154 et seq., differs from a proceeding in equity in the nature of a bill of review, in that the former is governed by the limitations contained in the statute authorizing the proceeding and the latter by the ordinary rules of procedure.</p> <p>Vacating Decree: defense: counterclaim. A decree quieting 5 title will not be vacated under sections 3154 and 3159 of the Code of 1873 until a valid defense to the action has been adjudged, and a counterclaim or cross-demand will not avail for this purpose.</p> <p>Vacation of Decree by Heirs: right to redeem as defense. 6 ' Where the heirs of an insane owner secure the vacation of a decree quieting title in a grantee in a tax deed on the ground of insanity and want of appearance either in person or hy guardian,- under section 3154 of the Code of 1873, they cannot interpose as a defense to the suit their right to redeem from the sale under sections 892 and 893. Such a defense can only be. pleaded as a counterclaim to the main action, and if upon vacation of the decree this right is extinguished by lapse of time the defense will not avail.</p>

<p>'Garnishment: FORUM. A court has power on its own motion, where the issues are purely equitable, to order a cause tried without a jury, hut when the only issue raised involves the title to personal property, it is error to so order.</p>

<p>Perjury: incompetent evidence. PREJUDICE. In a prosecution. 1 for perjury, the error in admitting certain improper testimony, though prejudicial to the defendant, is held to be cured by subsequently striking it from the record and instructing the1 jury to disregard it, there being other evidence of like import admitted without objection.</p> <p>Offer of Privileged Witness: reversal. The fact that the state-2 offers as a witness defendant’s physician, who treated him for the alleged injury but who is not permitted to testify over defendant’s objection on the ground of privilege, is not sufficient to warrant a reversal.</p>

— HoN. Fred O’DoN-Nell, Judge. The defendant, Stewart, was appointed administrator with the will annexed of the estate of John TL Floyd, deceased, June 27, 1885, and was discharged upon final report April 11, 1$90. According to this report, plaintiff and Birdena and Olive Tucker were entitled to 110,681.92 under the will, of which $8,243.46 had already been paid to their guardian, L. E. Tucker, appointed such December 11, 1889.

— How. W. Gr. Thompson, Judge. Action in equity, brought to enforce the specific performance of a contract to convey real estate. The facts appearing are that in June, 1901, the defendant P. D. Bell, who resides at Van Horne, Benton, county, was the owner- of a tract of land in Linn county, of irregular shape, and which he supposed contained eighty-two and one-half acres. That he had been assessed and paid taxes on that number of acres is admitted.

<p>Appeal from Linn District Oourt. — Host. W. G. Thompson, Judge.</p> <p>Action at law upon a.benefit certificate issued by the defendant, the Supreme Council of the Mystic Toilers. Trial to a jury, verdict and judgment for the plaintiffs, and defendants appeal.</p>

<p>County Bonds: limitation of indebtedness. The issuance of re-1 funding bonds in excess of the constitutional limitation, where the same are to be sold and the proceeds applied to the payment of those outstanding, even when so applied the indebtness would be reduced to an amount within the* limit, is in violation of Article II, Section 3 of the Constitution and such bonds are void.</p> <p>Municipal Bonds; liability of corporation: constitutional 3 limitation. Where a municipal corporation obtains money from the sale of refunding bonds issued in excess of the constitutional limitation, and applies a portion of the same to the discharge of a valid indebtedness, an obligation of the county to the purchaser exists to the extent of the proceeds so applied, and if such indebtedness included with other valid obligations of the county exceeds the constitutional limitation, an issue of other and further refunding bonds is invalid.</p> <p>Res Judicata: Where the controling issue in a former action, 3 was, whether the issuance, sale of bonds and application of the proceeds to a valid indebtedness, created a debt within the provisions of the constitution, and is determined, it constitutes an adjudication of that question and is a defense to a subsequent action on the same bonds, between the same parties.</p> <p>Res Judicata., Where the federal and state courts have concur-4 rent jurisdiction, an adjudication by one is binding upon the other.</p>

<p>Conversion: express companies: identification of shipment: defenses. Where the agent of an express company, in attempting to identify and select goods for shipment, at the request of the owner, hy mistake takes the property of another and the same is forwarded and lost, the company is liable to the owner in an action for conversion. And it is no defense that the property consisted of a gambling device and therefore of ■no value which the law recognizes, in the absence of proof as to the manner in which the same was used or that it had been employed in unlawful practices.</p>

— Hon. J. K. Whitaker, Judge. Action to recover the value of certain personal property alleged to have been wrongfully converted by the defendant. Plaintiff claims under three several chattel mortgages; one dated December 27, 1897, executed by vV.