Volume 123 — Iowa Reports

<p>'Appeal from Buchanan District Court. — Hon. F. C. Platt, Judge.</p> <p>Action to recover damages for a personal injury received on a bridge on one of the defendant’s streets. There was a directed verdict for the defendant. The plainlift appeals.</p>

- — IIon. W. S. Kenyon, Judge. Action by plaintiff, a physician, to recover for'professional services rendered, as alleged, at the instance and request of the board of health of the city of Boone, situate in the defendant county. The services consisted of taking charge of a smallpox hospital, or pest house, in said city, and in giving professional care and treatment to the inmates thereof.

- — Hon. C. H. Kelley, Judge. Action in equity to declare void proceedings had by the defendant, through its council and officers, to establish a system of waterworks, and to enjoin the erection of such works, and forbid the disbursement or expenditure of the city funds or the issuance of city bonds for that purpose. The trial court dismissed the petition, and plaintiff appeals.—

— Hon. William G. ■ _ Thompson, Judge. Action to recover damages for personal injuries received from a fall on the sidewalk alleged to have been defective. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. A. B. Thornell, Judge.' Action to recover damages for a personal injury occasioned, as alleged, by a defective sidewalk. Tbe trial was to a jury, and there was verdict and judgment in favor of plaintiff. Tbe defendant appeals.

— I-Ion. O. D. Wheeler, Judge. The plaintiff, holding two judgments against the defendant, William Pouder, caused execution to issue on its judgments and notice of garnishment to be served on the garnishee, H. Mendel, who had in his .possession the proceeds of an auction sale of personal property, consisting of live stock and farm produce and implements, which plaintiff' claimed was the property of said defendants.

— Blow. John T. Scott, Judge. This proceeding was instituted to contest the probate of an instrument purporting to be tbe last will and testament of John Knox. There was a jury trial, and verdict in favor of the proponents. From an order made admitting the instrument to probate, the contestants appeal.—

<p>Assignment of Error. An omnibus assignment of error to the over-1 ruling of a motion for verdict, based on distinct grounds, is insufficient.</p> <p>Evidence: when to be stricken. The answer of a witness which 2 is not responsive should be stricken out.</p> <p>Ratification: evidence. In an action to recover property where de3 fendant claims that plaintiff ratified the sale to him by accepting from his vendor and retaining full compensation therefor, evidence that plaintiff demanded the price from such vendor is immaterial, in the absence of a showing that payment was actually made.</p> <p>Evidence: conclusion. Where a contract relating to the owner-4 ship of property is offered in evidence, the testimony of one of the parties thereto that he is the owner is a conclusion and should be stricken.</p> <p>Evidence. Where it appeared that plaintiff’s secretary received and 5 receipted for all payments made to plaintiff, it was competent for such secretary to state whether any other person than he had anything to do with payments made to plaintiff.</p> <p>Recovery of Personal Property: • instructions. Where, in an ac-6 tion to recover personal property, defendant testified that he knew the contents of plaintiff’s contract with its agent, from whom he purchased the property, respecting the possession and ownership of the same, an instru ction to the effect that plaintiff was entitled to recover unless defendant had shown by a preponderance of the evidence that at the time defendant purchased the property it belonged to the agent, was correct.</p>

<p>Appeal from Jasper District Gourt. — Hon. W. C. Clements, Judge.</p> <p>C. W. Campbell recovered judgment for the sum of $109 against Claus Claussen February 6, 1893. The latter was then the owner of the real estate in controversy, upon which tliero were-three mortgages, one to the Newton Savings Bank, one to the First National Bank of Newton, and another in favor of J. B. Henderson. In May, 1892, Clausssen began suit against the First National Bank of Newton, the Newton Savings Bank, and others, demanding the proper application of certain, moneys in the hands of the banks, and that his homestead be declared not liable for any of the debts described. The banks answered jointly, and each filed a cross-petition demanding the foreclosure of its mortgage, and praying for the usual decree. Campbell was made a party defendant in each cross-petition, and duly served with original notices. The Olaussens answered thereafter, and on January 1, 1893, the First National Bank filed a supplemental cross-petition, alleging the compromise and settlement of the differences between it and the Olaussens, under the terms of which it took a conveyance of the land with right of possession March 1st following, and “that other defendants, Campbell et al. (lienholders), have no interest, right, or lien in and upon said lands but stich as are subject to the said Henderson mortgage and to the mortgage executed” to it, and closed with the prayer that “the equity of redemption of the said cross-defendants in this cross-petition may be forever barred and foreclosed, and said cross-defendants be decreed to make redemption from said mortgages within the time fixed by statute, ancl upon their failure to do so all equity or right of redemption therein or thereunder be forever 'barred, and for other relief as equity and good conscience may entitle.” No notice of the supplemental petition was served on Campbell, and the decree entered, in so far as it affects his interests, must be construed with reference to the plaintiff bank’s original cross-petition. A decree was entered reciting the settlement, declaring Claussen’s homestead free from the liens of the parties and that “the equity of redemption of the several defendants in said land (being the same described in the petition above herein) be, and the same is hereby forever barred and foreclosed, unless defendants shall make redemption by the payment of the Henderson mortgage and the mortgage by Claus Claussen to the First National Bank of Newton, Iowa, as provided by law, and witliin the-time fixed by law.” No decree appears to have been entered on the cross-petition of the Newton Savings Bank. The mortgage to Henderson was taken up by the First National Bank June 21, 1893. About $1,000 worth of improvements have been placed upon the land, but on which tracts does not appear, and all but one hundred eighty acres have been disposed of to other parties. On June 9, 1900, Campbell caused execution to issue on his judgment and to be levied on all the land conveyed by Claussen to the bank, and this action was begun soon after to enjoin its sale. Decree was entered as prayed, and defendants appeal.</p>

— I-Ion. A. D. Bailie, Judge. Suit iu equity for the specific performance of a contract to convey real estate. The trial court granted the relief prayed, and defendant appeals.

— ITon. TI. M. Remley, Judge. Trial of this action for damages caused by an alleged defect in a sidewalk resulted in a verdict and judgment for the plaintiff. The defendant appeals.

- — Hon. George W. Wakeeield, Judge. . Action in equity for specific performance of contract to purchase real estate. Decree for plaintiff, and the defendants Swanzey appeal.

— Hon. H. M. Hemley, Judge. Suit in equity to restrain tbe collection of taxes levied for tbe building of schoolhouses and to restrain tbe disbursement of any fund so collected. There was a trial, and judgment for the defendants. Tbe plaintiffs appeal.

— Hon. O. D. Wheejleb, Judge. Plaintiff brought action before a justice of the peace in and for Pottawattamie county, Iowa, on a promissory note signed by defendant; Judgment was rendered for defendant, and plaintiff appealed to the superior court of the city of Council Bluffs. Hither by agreement or upon motion the ease was transferred to the district court of Pottawattamie county for trial.

— Hon. M. A. Roberts/Judge. The petition alleges that Thomas D. Simpkins departed this life in 1893, and his widow, Phebe Simpkins, some years later; that seven children were born to him, three of whom are dead; that one of these and the heirs of two others have conveyed their -interest in the real estate in controversy to the defendant John E. Bales; that the defendants Matilda A. Bales and Hester PI.

<p>Parent and Child: habeas corpus: trial de novo. The issues in 1 habeas corpus proceedings are not triable de novo on appeal, and where there is evidence to support the finding of the tria! court it will not be disturbed.</p> <p>Adoption: evidence. In a proceeding for possession of a child, 2 the evidence is considered and held to support a finding of the trial court that the father had not consented to its adoption by another.</p> <p>Same. The fact that a parent is less able than, another to provide 3 for his child will not support a claim of adoption, where it appears he has not abandoned its custody, is able to give it a decent support and morally fit to have it in. charge.</p>

<p>Appeal from Louisa District Court. — Hon. James G. Smyti-ie, Judge.</p> <p>Actions to quiet title to real estate. Decree in each case for plaintiff. Defendants appeal.</p>

— Hon. Jas. D. Smytii, Judge. Suits in equity to recover on fire insurance policies issued to the defendant Mary E. Bonn. There was a judgment for the defendants. The plaintiff appeals.

— Hon. W. H. McHenry, J udge. Action at law to recover damages for personal injuries. Trial to a jury. At tbe conclusion of plaintiff’s evidence, tbe court, on defendant’s motion, directed the jury to return a verdict for him, which was accordingly done. Plaintiff appeals.

— Hon. Henry Bank, Jr., J udge. Suit in equity to quiet plaintiff’s title tp certain real estate. Defendant denied plaintiff’s claim, and pleaded title in himself. The trial court dismissed plaintiff’s petition, and quieted title in defendant. Plaintiff appeals. — ■

— Hon. C. W. Vermillion, Judge. Suit on a claim for board, washing, nursing, and attendance, and for the care and keeping of horses and for money loaned. There was a verdict and judgment for the plaintiff, from which the defendant appeals.

<p>Estates of Decedents: appointment of executors. Naming one an 1 executor in a will does not make him the executor upon the death of testatrix but merely confers the right of appointment, and where no appointment is made, the ten day limitation in Code section 3290 relating to vacancies in the office has no application.</p> <p>Same. The court is not required to appoint the executor named in 2 a will, and where a beneficiary is named and the conditions have so changed that such an appointment would he inimical to the interests of other beneficiaries, the court may in the exercise of its discretion reject the nomination.</p>

— Hon. L. E. Fellows, Judge. Action for damages for an alleged assault and battery. Verdict and judgment for plaintiff, and defendant appeals.

<p>Personal Injury: misconduct of counsel: argument. The argu1 meat of counsel to a jury that objections to certain testimony amounted practically to an admission of the facts sought to be proven by the excluded evidence, and that the same would have been proved except for the objections made, amounts to such misconduct as will authorize a reversal.</p> <p>Evidence: conversations. In an action for personal injuries, ques-2 tions calling merely for a conversation between plaintiff and her daughter had at the time of the injury were properly excluded.</p> <p>Evidence. In an action for injuries caused by an unguarded stair-3 way in defendant’s store,, evidence of other accidents and of warnings to defendant that it was dangerous was properly excluded.</p>

<p>insurance: agent’s contract: construction. The contract of a 1 life insurance association to pay a soliciting agent a stated yearly commission on all insurance obtained by him so long as the same should remain in force is not unreasonable and void because operating “to tie up”' the funds of the association or to control future governing boards and officers.</p> <p>Assumption of Business of Another Association: agent’s commis2 siok: estoppel. Where an insurance association assumes the policies of another association with knowledge of an agent’s contract creating a stated charge thereon in his favor to be paid from a special fund, agrees to pay the same and proceeds to collect the assessments and renewals upon which such charges are fixed', it is estopped to deny its authority to assume such policies as against the agent’s claim for his compensation.</p> <p>Assumption of Agent’s Charge: ultra vires. The agreement by 3 which a life insurance association, assuming the policies of another association, promises to pay the agent of the other association a commission for the Renewal of policies so assumed which was a fixed charge on such policies, is not ultra vires.</p> <p>Accounting: burden of proof. In an action by an agent for an ac-4 counting and to recover commissions on policies secured by him, the defendant having possession of the books and records from which the correct account can be determined is charged with the burden of proof as to the amount due; and upon default in its proof, cannot complain of a judgment for the highest amount shown due by plaintiff’s evidence.</p>

— Hon. James D. Smyti-i, Judge. Suit in equity to. enjoin an alleged liquor nuisance. The trial court dismissed plaintiff’s petition, and he appeals.—

— Hon. Wm. Hutchinson, Judge. Action in replevin. Verdict directed for defendant, and from judgment entered thereon the plaintiff appeais.—

— Hon. H. M. Towner, Judge. Defendants were put on trial under an indictment charging them with robbery committed while being armed with dangerous weapons, and, on conviction, each was sentenced to imprisonment in tbe penitentiary for ten years, and they jointly appeal.

— Hon. Robert Sloan, Judge. Suit in equity to restrain the defendants from condemning a highway over the plaintiff’s land under the provisions of sections 2028 and 2029 of the Code. A temporary writ of injunction was issued, which was afterwards dissolved, and the plaiptiff appeals.

— Hon. A. S. Blair, Judge. Defendant appeals from a sentence for the crime of obtaining money under false pretenses, of which he was found guilty, as the result of a trial on an indictment for that offense.

— Hon. H. M. Remley, Judge. Action at law to recover an amount alleged to have been overpaid to the defendant, or to have been omitted by mistake from a settlement between the parties. Demurrer to the petition having been sustained, and judgment entered thereon, plaintiff appeals.

— TIon. IT. M. Towner, Judge. When tbe traction engine owned by John Rowe was about one-third over the Hoover bridge, constructed by Taylor county thirteen or fourteen years before the trial, the supporting’ rod drew through the east end of one of the beams on which the joist and plank covering rested. The bridge gave way, precipitating the engine in the creek about twelve feet below. The plaintiff was injured, and in this action sought to recover- damages.

- — TIon. W. B. Quarton, Judge. Action at law upon two promissory notes. Defense, failure of consideration. Trial to a jury. Directed verdict for defendant, and plaintiff appeals.

<p>Street Railway: passage op resolutions by council: vote. A 1 majority of a quorum is all that is required for the passage of a resolution hy a city council.</p> <p>Street Railway: extension: construction of franchise. Where 2 a city ordinance provided that a street railway e’ompany might construct and operate its lines on such streets as it thereafter should designate in an acceptance of the ordinance, and such other streets as the city council might from time to time designate hy resolution, it is held that the provision requiring a designation of streets upon acceptance of the ordinance related to the minimum mileage at that time, and that the right to occupy other streets was implied in and contemplated hy the ordinance and could he exercised hy the authority of a resolution.</p> <p>Street Railway: exclusive privileges: extension of: Where the 3 franchise of a street railway company grants an exclusive privilege for a specified time and also authorizes an extension of its lines from time to time, a permission to extend will not operate to prolong the time of its exclusive privilege, nor is such right inconsistent with the existence of another system operating under a like general power.</p>

!Appeal from Polk District Court. — TIon. C. P. Holmes, Judge. T-Tatvtcas corpus proceedings instituted in the name of Elizabeth Miller, a minor, by James Miller and 3L E. Miller, as her next friends and parents by adoption, to determine the right to the custody of said minor. The trial court awarded the custody to said James and K. E. Miller, and the defendants appeal.

— Hon. John F. Oliver, Judge. The plaintiff brought suit for a divorce from the defend-' ant. She answered, and in a cross-petition asked for separate maintenance. Before trial the plaintiff dismissed his action, and soon thereafter went to England, and did not return until after there had been a trial upon the cross-petition and a judgment for the defendant awarding her $425 for attorney’s fees, expenses, and temporary support, and $160 a year for separate maintainance.

— Hon. C. W. Vermillion, Judge. - These are each actions to partition the same tract of land. A petition was first filed in the case of Guinn v. Elliott et al., and a notice by publication as to the nonresident defendants was first completed in that case. A petition was filed, in the case of Elliott v. Guinn, and an original notice of that action was first placed in the hands of the sheriff, and first served.

— Hon. T. E. Gaynob, Judge. Action to recover compensation for services alleged to have been rendered by plaintiff in behalf of defendant. Verdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Polk District Court. — Hon. Wm. McHenry,. Judge.</p> <p>Action on bond to release attached property. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. B. L. Parish, Judge. Landlord’s attachment to recover rent alleged to be due upon a written contract of lease of a farm. Trial to a jury. Verdict and judgment for the plaintiff, and defendant appeals.

— Hon. John E. (Driver, Judge. In July, 1900, the plaintiff began an action in equity to redeem certain lands from a tax deed issued to the defend- and. He obtained a decree in the district court in October of the same year, authorizing redemption as prayed within ninety days from the date of the decree.

<p>Appeal from Appanoose District Oourt. — Hon. M. A Roberts, Judge.</p> <p>Action to recover on an instrument of guaranty. From judgment on a directed verdict for plaintiff, the defendant appeals.</p>

— Hon. M. A. Roberts, Judge. Action in equity for a mandatory injunction and other equitable relief. To the petition as amended a demurrer was interposed and sustained. Tbe plaintiffs refused to plead further. There was judgment against them for costs, and they appeal.

<p>■Appeal from Palo Alto District Court. — Hon. A. D. Bailie, Judge.</p> <p>The opinion states the case. Reversed as to defendant Consigney, but otherwise</p>

— IIon. Frank W. Eiciielberger, Judge. Action by mandamus to compel the defendant company to construct an undererossing to connect the portions of plaintiff’s premises which are separated by defendant’s right of way. On defendant’s motion the petition of plaintiff was dismissed, and judgment, was rendered for defendant, from which plaintiff appeals.

— ITon. John F. Oliver, Judge. Action at law to recover damages for personal injuries received by plaintiff in being pushed or kicked from one of defendant’s trains. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. James D. Smyth, Judge. One E. E. Hughes, a resident of Polk county, became •addicted to excessive use of intoxicating liquors, and upon the application of bis wife W. W. Thompson was appointed 'temporary guardian of his person January 2, 1902.

— Hon. Wk. Hutchinson, Judge. This is au action to reform a contract in which plaintiffs undertook to convey to defendant certain real estate, and to enforce specific performance of the contract as reformed. There was a decree for plaintiff, from which defendant appeals.

<p>Appeal from Lyon District Oouri. — Hon. J. F. Oliver, Judge.</p> <p>Action at law to recover tbe value of a cow injured, as is claimed by the plaintiff, while being transported from Waldron, in the'state of Indiana, to Rock Rapids, in this state. Tbe defendant denied all negligence on its part, pleaded a contract of shipment limiting tbe time for tbe bringing of action, and fixing tbe value of tbe animal at $100, and further pleaded that whatever injury tbe cow received was due to causes arising from tbe condition of tbe animal and to her own conduct while being transported. Tbe reply pleads a waiver of tbe condition in tbe contract as to .the time for bringing suit and some other matters not necessary to be noticed. Tbe case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. J. B. Whitaker, Judge. Suit to recover damages for a,personal injury and for wages due. There .was a trial to a jury, and, after the evidence was all in, the court, on its own motion, withdrew from the consideration of the jury the claim for damages. The plaintiff’s motion for a 'new trial was sustained oh this branch of the case, and the defendant appeals.

- — Host. W. S. Withrow, Judge. On the 5th day of October, 1898; a decree was entered in the district court of Lee county, at Keokuk, divorcing this plaintiff from the defendant, Delta D Rea; and, although the notice was by publication only, she was allowed alimony in the sum of $20,000, for which a personal judgment was entered.

<p>Commissions for Sale of Land: service oe agent: direction oe verdict. ^Where a real estate agent does not claim to have furnished a purchaser for defendant’s land at the price agreed upon, and the terms of the agent’s employment are in dispute, as well as the extent of his service, it is error to direct a verdict for plaintiff.</p>

<p>Appeal from Davis District Court. — Hon. M. A. Roberts, Judge.</p> <p>Action to recover damages in double the value of a mare belonging to plaintiff, and killed on the right of way of the defendant company by a passing train. There was a jury trial, and verdict and judgment for the plaintiff. Defendant appeals.</p>

— Hon. James D. Gamble, Judge. Action for an injunction to restrain tbe defendant Thornburg, as treasurer of Dallas county, from paying to the defendant, the Equitable Life Insurance Company of Iowa certain warrants issued to the latter under the authority of the board of supervisors of said county. A demurrer to the petition was sustained by the trial court, from which ruling the plaintiff’s appeal.-

<p>Appeal from, Mahaska District Court. — Hon. John T. Scott, Judge.</p> <p>At the general election of 1899 Wilfred Hull and W. W. Eby were opposing candidates for the office of county treasurer. The certificate of election was issued to Eby, whereupon Hull, who was the incumbent in office, contested. The board of contest found that Eby had been elected, and Hull appealed to the district court. Eby then instituted quo warranto proceedings by permission of the court in the name of the state, the county attorney having refused to prosecute. By agreement the two cases were consolidated and tried together, and the court, on March 8, 1900, decreed that Eby was duly elected treasurer of the county, and entitled to the possession of the office; but that after the trial, though before the signing of the decree, Hull had surrendered possession thereof to Eby, so that judgment of ouster was unnecessary, and declared Eby entitled to possession of the office, together with the books and moneys thereof, and rendered judgment “that the state of Iowa pay the cost of the proceedings, taxed at $-.” On March 24, 1900, the county attorney filed a motion to retax the costs and to tax them ágainst Hull, the contestant in the one case and the respondent in the other. He was duly notified of this motion on the same day. The motion was submitted two days later, written arguments to be presented thereafter, and was sustained October 3, 1901, and the costs, amounting to $166.20, taxed to Hull. Prior to this time the decree had not been entered of record, nor the record signed. Hull appeals</p>

<p>intoxicating Liquors: withdrawal or property owner’s consent. A property owner may withdraw Ms consent to the sale of liquor within fifty feet of his place of business, but the same shall not operate to remove the bar to prosecution during the year for which the tax has been pdid.</p>

— Hon. C. P. Holmes, Judge. Action to recover damages for a personal injury occasioned as alleged by the negligence of defendant, and resulting in tbe death of plaintiff’s intestate. There was a directed verdict in favor of defendant, and plaintiff appeals.

'Appeal from Polk District Court. — TIon. S. F. Prouty, Judge. Action at law on a judgment of tbe circuit court of Cook county, HI., in chancery, for tbe payment of a sum of money. A demurrer to tbe petition as amended was sustained, and on failure of plaintiff to further amend tbe cause was dismissed, and judgment rendered in favor of the defendant for costs. Tbe plaintiff appeals.

<p>Appeal from Van Burén District Court. — Hon. C. W. Vermilion, Judge.</p> <p>Ti-ie opinion states the case.</p>

<p>Appeal from Lee District Court. — Hon. H. Bank, Judge.</p> <p>Action in equity for partition of real estate. The opinion states the facts.</p>

’Appeal from PoTk District Court. — Hon. W. H. McHenry, Judge. Action to recover damages for breach of au alleged contract of agency for tbe sale of real estate. Trial by the court without a jury. Judgment for defendant, from which plaintiff appeals.

— TIon. John T. Scott, J udge. Suit in equity, whereby plaintiff seeks to be subrogated to the rights of the county treasurer of Jasper county again°+ the defendants, and for judgment for the amount of certain taxes paid by it on a stock of merchandise purchased by it from defendants Foster & Tait.. The trial court dismissed the petition, and plaintiff appeals.

<p>Telegrams: failure to deliver: error in name. A telegraph com-1 pany is required to use reasonable diligence in the delivery of a message, and failure to deliver a telegram addressed to“Hulburt” to one “Hurlburt,” the person intended, under the facts shown was negligence.</p> <p>Damages: mental pain. Mental pain and anguish caused by the 2 negligent failure of a telegraph company to deliver a message notifying one of the death of a relative in time to attend the funeral will support a judgment for damages.</p>

<p>Wills: . vested remainder. A devise of real estate to the widow for life, with remainder to a son, vests completé title in such devisees, and the son’s interest is not rendered contingent by an additional provision that if the son should die before distribution, his issue, if he left any, otherwise his heirs should receive his share.</p>

— IIon. James A. Howe, Judge. Action to recover from the defendant, the city of Des Moines, the amount of a certificate for curbing, issued by the city to Fred Stehm, of which plaintiff is now the owner by assignment. A demurrer to the petition was sustained, and, plaintiff electing to stand upon his pleading, judgment was rendered for the defendant, from which plaintiff appeals.—

<p>Appeal from Pol\ District Court. — Hon. A. H. McVey, ■ Judge.</p> <p>Suit iu equity to enforce a marriage settlement. Judgment and decree for plaintiff, and defendants appeal. — •</p>

— H]on. Wm. Hutchinson, Judge. Action in equity to enforce the specific performance of a contract to convey real estate. Decrée for plaintiff, and defendants appeal.

— Hon. J1 H. Apple-gate, J udge. Action brought under Oode, section 1374, as amended by Acts 28th General Assembly, page 33, chapter 50, against defendant, as guardian of the estate of Elias Cad well, an insane person, and against Elias Oadwell personally, for whom a guardian ad litem was appointed, to recover taxes on property omitted from taxation for the years 1895, 1896, and 1897.

<p> Appeal from Cherokee District Court. </p> <p>The opinion states the case.</p>

— -Hon. -John T. Scott, Judge. Tiie city of Grinnell began the construction of a sanitary sewer system in 1891 or 1892, and continued the work until 1896 -when about nine or ten miles of mains had been laid. Little Bear creek rises within the city limits, and has been used since 1895 as an outlet for the sewage.

<p>Appeal from Polio District Court.- — Hon. A. H. McYey., Judge.</p> <p>The opinion states the case.</p>

— Eon. J. E. Clyde., Judge. On September 22, 1898, White & Drake, a co-partnership doing business at Waver ly, this state, then being indebted to the defendant bank in the sum of $1,616.62, all of which was past due, executed and delivered a chattel mortgage covering the entire stock of merchandise owned by said firm, and assigned in writing all its unpaid accounts and demands to the defendant bank to secure such indebtedness.

IAppeal from, Folic District Court. — Hon. A. II. McVey, Judge. Action to enforce specific performance of an agreement among the stockholders to give to one of them a permanent proxy to vote a certain proportion of corporate stock. Plain-, tiff also asked that, if such relief could not he given, a certain contract entered into between him and the corporation should be rescinded, and the amount invested by him in the stock of the corporation should be returned.

— Hon. M. A. Roberts, Judge. Oh the 7th day of April, 1901, the plaintiff was a.passenger in the caboose of defendant’s freight train from Bloom field to Belknap. On the way several cars, including the caboose, left the track, and, according to the petition, the plaintiff was injured. He recovered judgment for damages, from which the defendant appeals.

<p>Attachment: release bond: waiver op approval. The plain-1 tiff in attachment may waive the approval of a release bond as provided in Code Section 3907, and the liability of the sureties will not be affected thereby.</p> <p>Release Bond: consideration. The dissolution of an attachment 2 is a sufficient consideration to support a bond for the release of attached property.</p> <p>Sureties: subrogation. Where an attachment has been dissolved 3 by the execution of a release bond, and the defendant appeals from a judgment giving a supersedeas bond with other sureties and without the knowledge or assent of the sureties on the attachment bond, payment of the judgment on affirmance by a surety on the supersedeas bond will not entitle him to subrogation to the rights of the judgment creditor against the sureties on the attachment bond.</p>

<p>New Trial. A petition for a new trial will be denied, where the 1 offered testimony is largely cumulative and there is no allegation of fraud, accident, mistake or casualty preventing a full development of the case at the original hearing.</p> <p>Trial De Novo. Where the evidence in an equitable action is not 2 certified and filed in the court below, as required by Code Section 3652, there cannot be a trial de nova on appeal.</p>

— Hon. W. H. McHenry, Judge. Action at law to recover damages for au alleged unlawful search of plaintiffs premises. Verdict for defendants by direction of the court, and judgment accordingly. Plaintiff appeals.

<p>Corporations: STOCK SUBSCRIPTION: ENFORCEMENT Off PAYMENT: 1 burden off proof: evidence. In an action by a judgment creditor of an insolvent corporation to enforce payment of a subscription to stock, the burden is on him to show that the same or some portion thereof is unpaid. Evidence of payment held insufficient to support a directed verdict for defendant.</p> <p>Contents of Note, best evidence. Oral and 'documentary evi2 deuce of the contents and terms of a promissory note should be excluded, where there is no showing that the note is lost or destroyed.</p>

<p>Perjury: indictment: traverse of false statement. Ail indictment for- perjury must traverse the truth of the alleged false testimoney by contradicting the matter alleged to have been falsely sworn to in express and specific terms.</p>

<p>Appeal from Clinton District Court. — Hon. P. B. Wolee, Judge.</p> <p>Action at law to recover damages for personal injury. “Verdict and judgment for plaintiff for $1000, and defendants appeal.</p>

— Hon. C. W. Vermil.lion, Judge. This is a proceeding to condemn a right of way, formerly owned by the Central Railroad of Iowa, over the northwest quarter of the northwest quarter of the southeast quarter of section 22 in a township in Monroe county, Iowa.

— Hon. James D. Gamble, Judge. Suit in equity to quiet the title to the east half of section 6, township 81 north, of range 32 west of the fifth P. M., in Guthrie county. For some time prior to and at the time of his death, Patrick McDonald, the father of the plaintiffs and the defendant Michael McDonald, was the owner of this land.

<p>Appeal from Marshall District Oourt. — Hon. Obed Gas-well, Judge.</p> <p>Action in equity to annul contract for sale of land. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Boone District Court. — Hon. J. II. K-ighard, Judge.</p> <p>Ti-ie defendant was indicted for gambling in December, 1902, and put on trial in March following. He pleaded “Not guilty,” and that he had previously been convicted of the same offense. Verdict of guilty was returned, whereupon the defendant moved that he be discharged, for that he had been indicted for the crime of keeping a gambling house, in which the gambling charged was alleged to have been committed at the same term of court the indictment under which he was being tried was returned, and he had been convicted on a plea of guilty. The court sustained this motion and discharged the defendant. The state appeals.</p>

— Hon. A. S. Blair, Judge. Bastardy proceedings to charge the defendant with the expense'of maintaining an illegitimate child, born to one Carrie ICujadt. It is claimed that the defendant is the father of the child. This he denied, and on the issue thus joined the case was tried to a jury, resulting in a verdict and judgment of guilty. Defendant appeals.-

— TIon. James A. IIowe, Judge. Action commenced in equity to'foreclose a chattel mortgage dated October 11, 1901, executed to plaintiff by the defendant F. L. Morgan, doing business as the Morgan Jewelry Company, and liis wife, Alletta E. Morgan. The petition was filed June 21, 1902, and thereto the defendants made no appearance. Upon the application of plaintiff, a receiver was appointed; who took possession of the mortgaged chattels.

<p>Appeal from Boone District Court. — Hon. J. R. Whitaker, Judge.</p> <p>'Action in equity to cancel deed. Decree dismissing bill, and plaintiff appeals.</p>

<p>Railroads: crossings: approaches. The approach to a railway 1 crossing is a part thereof and is included in the statutory duty of a company to erect and maintain a good and sufficient crossing.</p> <p>Contributory Negligence: bubden op proop. Where a statutory 3 duty is imposed on a railway company to maintain a sufficient crossing, the burden of proof is on the company to show contributory negligence of one injured by a defective crossing.</p> <p>Defective Crossing: duty to take another road: instruction. 3 An instruction that if plaintiff had knowledge of the dangerous and defective condition of the crossing, but had reasonable ground for "believing and did believe that she could cross with, safety by the exercise of due care, and did not and was not bound to believe as a reasonably prudent person that it was unsafe to make the passage she was under no obligation to take another road, was correct.</p> <p>Evidencd: repair oe grossing. Evidence of repair of a crossing á subsequent to an injury is inadmissible on the question of its defective condition at the time of the injury or the negligence of the company, and an objection thereto is not waived by the offer of testimony in. contradiction.</p> <p>Additional Abstract: motion to strike. Where an additional ab-6 stract simply denies the correctness of the original, the denial being followed by the entire evidence of a witness with no reference to the original abstract, without pointing out the errors complained of, it will be stricken out.</p>

<p>Streets: negligence: Leaving a 'ridge of dirt sixteen inches 1 high and four or five feet wide at the bottom, in the center of a well traveled street, is negligence on the part of a city.</p> <p>Negligence. Where one'driving along a traveled street about dark 2 crosses from the right to the left side to avoid a rapidly approaching hose cart and is injured in so doing, he is not thereby guilty of negligence as a matter of law.</p> <p>New'Trial: misconduct. Inactions for personal injuries, evi3 dence of similar accidents are inadmissible, and where the same may be inferred from the examination of a witness and prejudice results, a new trial will be granted.</p> <p>Argument: misconduct. Where no exception to argument is taken 4 at the time, giving the trial court an opportunity to correct the error, a reversal will not be ordered unless prejudice clearly appears.</p>

— Hon. A. S. Blair, Judge. The defendants were convicted of breaking and entering a building with the intent to steal therefrom. They appeal.

<p>Appeal from Marion District Court. — Hon. J. D. Gamble, Judge.</p> <p>Action at law to recover moneys belonging, as alleged, to plaintiff district, and erroneously paid by the county treasurer of Marion county to the defendant district. There was a judgment in favor of plaintiff, and the defendant appeals.</p>

<p>Appeal from Boone District Court. — Hon. J. R. Whitaker, Judge.</p> <p>Action to recover damages for being ejected from a passenger train on defendant’s railroad. Verdict for $100. Defendant appeals.</p>

— Hon. J. H. Whitaker, Judge. This suit was brought originally in the form of a creditors’ bill to subject certain lands to the payment of a judgment held by plaintiff against the defendants Andrew and M. O. Eksell.

— Hon. O. H. Kelley, Judge. This is a certiorari proceeding, brought in the district court of Worth county, to review the proceedings of the defendant, acting as a board of supervisors, with reference to the relocation of the county seat in that county. The trial court annulled the proceedings of the board ordering the question of relocation to be submitted to the. electors of the county at the general election for the year 1902, and taxed the costs to the defendants.

<p>Appeal from Benton District Gourt.- — -Hon. Obed Caswell, Judge.</p> <p>Indictment for assault with intent to inflict great bodily injury upon one Henry Pickart. The defendant was convicted, and appeals.</p>

— Hon. A. S. Blair, Judge. Plaintikk in a national bank at Independence, this state, 'with, a capital stock outstanding in the sum of $100,-000. In April, 1902, tbe city assessor, upon statements furnished him by the bank, and from information otherwise obtained, feed the value of the stock of said bank for assessment purposes at the sum of $180,000.

— Hon. George \V. Dyer, Judge. On January 1, 1901, P. Shurman was the owner of a certain stock of goods located in a building at Webster City, and this was assessed to him prior to April 1st at a valuation of $2,030. Some time in May the plaintiff bought the entire stock for cash and has retained it since, selling therefrom by retail, and adding thereto to keep up the stock.

— Hon. W. R. Green, Judge. Action at law to recover the value of certain mining-stocks received and used or held by defendant, in which plaintiff claims an interest. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.-

<p>Appeal from Dubucjue District Gouri. — Hon. M. O. Matthews, Judge.</p> <p>Plaintiff, as judgment creditor of the' defendant, prays in its petition that the defendant be restrained from receiving or collecting the sum of $17,225 appropriated by the Congress of the United States to the defendant, and that a receiver be appointed for the defendant corporation, to take possession of all its property and assets; that the officers of the corporation be ordered and compelled to transfer to said receiver, by proper indorsement, any warrants, drafts, checks, or other evidences of indebtedness issued by the federal government on account of such appropriation; that, if any fund has already been collected on that account, said officers be ordered and compelled to turn over said money to said receiver; and that said receiver be ordered to apply any money coming into his hands in payment- of plaintiff’s judgment. In the second division of defendant’s answer it is alleged, in substance, that by conveyance of its property to plaintiff, and by a contract made between one E. M. Diclcey and the plaintiff, the judgment of the plaintiff against the defendant has been fully discharged and satisfied. A demurrer to the second division of the answer was sustained, and the defendant appeals.</p>

<p>Highways: duty to turn aside. One driving along a highway 1 is not bound to yield any portion of the road to let another pass; it is only to avoid a collision reasonably to be apprehended that he is required to turn aside.</p> <p>Negligence: instruction. In an action for damages resulting 2 from defendant’s negligence in passing plaintiff on a highway, liability is the same whether plaintiff’s team was standing still or moving, and an instruction submitting the issue of negligence on the theory that the team was not moving, though unsupported by the evidence, was not prejudicial error.</p>

- — How. Clieeord p.' 'Smith, Judge. The defendant, with two others, was indicted for the crime of having entered into a conspiracy to commit adultery. From judgment of conviction, he appeals.

— Hon. A. D. Batt.tr, Judge. Action at law to recover damages for personal injuries received by plaintiff while passing along and over a sidewalk in the defendant town. Defendant’s answer was a general denial and a plea of contributory negligence on the part of the plaintiff. The case was^tried to a jury resulting in a verdict and judgment for plaintiff, and defendant appeals.—

— IIon. A. N. Hobson, Judge. Suit to recover upon an alleged contract of insurance. There was a trial to a jury, and a verdict and judgment for tlie plaintiff. The defendant appeals.

<p>Guaranty: change of contract: discharge of guarantor. The 1 fact that a portion of an order of goods proved defective in quality and was returned hy the purchaser without the knowlledge or consent of a guarantor will not operate as a change in the contract of purchase so as to relieve the obligation of an unconditional guaranty.</p> <p>Appeal: dismissal : second appeal. A perfected appeal may he 2 voluntarily dismissed, and thereafter and within six months from the date of judgment sought to he reviewed a second appeal may he taken.</p>

— Hon. J. D. Bailie, Judge. The plaintiff owned and operated a railroad in Olay county, which the defendant desired to cross with its road, whereupon the plaintiff instituted this proceeding^ under section 2063 of the Code to- compel the defendant to interlock the crossing. There was a judgment requiring the defendant to construct and forever maintain an.interlocking apparatus as prayed, at its own sole cost and expense. The defendant appeals.

— ITon. Henry Bank, Jr., Judge. Action to recover possession of certain described real estate. There was a decree establishing title in defendants under their cross-petition, subject, however, to a homestead right on the part of plaintiff. Plaintiff appeals.

<p>Appeal from Humboldt District Court — Hon. A. D. Bailie, Jridge.</p> <p>Action to recover the purchase price of a canopy-topped wagon. Defense, rescission of the contract of sale for breach ■of an alleged warranty. A demurrer to the answer pleading this defense was overruled, and plaintiff appeals.</p>

— Hon. W. S. Kenyon, Judge. The plaintiffs are residents and taxpayers of Hardin county, this state, and bring this action in equity for an injunction to restrain the payment of moneys, for an accounting, and judgment in favor of Hardin county, against defendant Albrook and certain other of the defendants, on account of moneys alleged to have been wrongfully received by them out of the county treasury.

'Appeal from Cass District Court.- — Hour. N. W. Macy, Judge. Action at law to recover money due on a written contract. Tbe defendant pleaded payment. There was a trial to tbe court, and a judgment for tbe defendant. Tbe plaintiff appeals.

'Appeal from Mitchell District Court. — Hon. J. N Clyde, Judge. Action for divorce. Decree for plaintiff. Petition for new trial denied, and defendant appeals.

'Appeal from Mahaska District Court. — ITon. Joi-in T. Scott, Judge. Fred Hobson was the owner of a stock of goods in Barnes City. On the 21st day of April, 1902, he executed a bill of sale thereof to J. W. Jordan, and then absconded.

— Hon. W. B. Quaeton, Judge. Action at law to recover tbe purchase price of certain hogs sold and delivered the defendants. Trial to a jury, directed verdict for defendants, and plaintiff appeals.—

— Hon. J. H. Richard, Judge. Action in equity to rescind and set aside conveyance of land by defendant to tbe plaintiff, and for damages. The district court dismissed the bill, and plaintiff appeals.—

'Appeal from Polk District Court.- — I-Ion. W. IT. McHenry, Judge. Action at law to recover taxes on property omitted from taxation and not assessed for the year 1898. The defendant interposed certain defenses, which will be referred to in the body of the opinion. On the issues joined the case was tried to the court, resulting in a judgment dismissing plaintiff’s petition, and he appeals.

<p>Continuing Negligence: pleadings: instruction. In an action for damages arising from the negligent nse of a bicycle on the public highway, a petition alleging that defendant’s approach was in a negligent manner whereby plaintiff’s team became frightened and after partial control was gained it was again frightened by another negligent approach and ran away, charges a continuous negligent act; and an instruction that if defendant knew or could have known by ordinary care that he was frightening the team he should have desisted and if he failed to do so ‘ ‘but kept doing that which was frightening the team, ’ ’ recognized the continuing negligence and was correct. • .</p>

- — Hon. G. W. Burn-ham, Judge. Action to recover rent. Trial to the court without a jury. Judgment for defendant, and plaintiff appeals.—

<p>Appeal from Delaware District Court. — Hon. H. O. Platt, Judge.</p> <p>Action in equity to enjoin collection of a judgment. Decree for plaintiff, and defendant appeals.</p>

— IIon. Fred O’Donnell, Judge. ’Actions for partition of real estate. In March, 1858, Theophilus Crawford, Sr., died in the state of Vermont, testate. His will was probated in Dubuque county, this state, in 1851. By the terms thereof he devised to his sonj Theophilus Crawford, Jr., and his wife, Eliza Crawford, the use and income during their natural lives of a tract of land consisting of three hundred and twenty acres, situate in Dubuque county.

— Hon. James D. Smyti-ie, Judge. Suit in equity to enjoin defendant from obstructing a highway or private right of way claimed by plaintiff over defendant’s land. The trial court dismissed plaintiff’s petition, and he appeals.

'Appeal from Monroe District Court. — Hon. Hobt. Sloan, Judge. Suit to condemn intoxicating liquors. There was a trial to a jury, and a verdict and judgment for the state. The defendant appeals.

'Appeal from Allamakee District Court. — IIon. A. N. Hob-son, Judge. The facts out of which this controversy grows are as follows: The will of John Nicholson, deceased, was probated in September, 1898, and Elizabeth Nicholson duly appointed executrix thereof.

<p>Specific Performance: option to purchase by lessee. A stipu" 1 lation in a lease providing that the lessee may purchase the premises at any time during the term and defining the terms of purchase is a continuing offer of sale, and , notice of election to buy is an acceptance and will complete a contract of sale as of the date of such notice.</p> <p>Option to Purchase Land: SUBSEQUENT CHANGE IN PROPERTY. 2 Where a lease contains an option of sale during the term at a specified sum, upon payment of which the lessor will convey, a subsequent change in the value without fault of either party will excuse neither from compliance with the contract.</p> <p>Specific Performance: conditions for granting same. Where á 3 lease for a term of years provided the terms -upon which the lessee might purchase at any time during the term, and prior to an exercise of the option the city caused the' street in front of the property to be paved at the cost of the abutting owner, which was paid in part by the lessor, a decree requiring the lessee to reimburse the lessor and to assume the balance of the cost as a condition precedent to specific performance was warranted.</p> <p>Option to Purchase: uiproyements prior to election. A lessee 4 with an option to purchase cannot complain that the lessor waived irregularities in the letting of a contract under which 'improvements were made prior to his election to purchase.</p>

<p>Appeal from Fayette District Gourt. — Hon. L. E. Fellows, Judge.</p> <p>Suit to recover specific personal property. Trial to the court, and a judgment for the defendants. The plaintiff appeals.</p>

— Hon. J. H. Richard, J udge. Suit in equity for the specific performance of a contract to convey real estate. The trial court granted the relief prayed, and defendants appeal.

<p>Appeal from Shelby District Court. — -Hon. W. W. Macy, Judge.</p> <p>The defendant was convicted of assault with intent to commit rape, and appeals.</p>

<p>Appeal from Linn District Court. — Hon. J. IT. Preston, Judge.</p> <p>Ti-ie defendant was tried for the violation of a city ordinance regulating the sale of commodities on its streets. A verdict was directed for him, and the state appeals.—</p>

<p>Estates of Decedents: claims: delay in piling: equitable relief. To establish a claim against an estate, which was' 1 not filed within the statutory period, the claimant must make a showing which will entitle him to equitable relief. Evidence considered and held insufficient to authorize allowance on the ground of negligence in presenting the same.</p> <p>Same. The fact that a claim was filed with decedent’s guardian 2 prior to his death did not excuse a failure to file the same against the estate within the statutory period.</p>

— Hon. F. O. Platt, Judge. Suit to recover damages for grading an alley. A demurrer to the petition was sustained, and the plaintiff electing to stand upon bis pleading judgment was entered dismissing tbe suit. Tbe plaintiff appeals.

'Appeal from Oedar District Gourt. — IIon. W. N. Treioiiler, Judge. Action in equity for specific performance of agreement to convey land. Decree for plaintiff, and defendants appeal.

<p>Forcible Defilement: indictment: essential elements. An indictment for forcible defilement must allege the taking to have been unlawful and against the woman’s will.</p>

<p>Transactions With Deceased Persons: competency of witness. A defendant by his own act of putting in evidence a letter written to him by plaintiff’s intestate cannot thereby render himself competent to testify to the transactions referred to therein.</p>

— Hon. F. G. Platt, Judge. The defendant was arrested for a violation of an ordinance of the city of Cedar Falls. On trial before the mayor of the city he was convicted. lie appealed to the district court, where trial was had before the court without a jury, resulting in his discharge and a judgment against .the city for costs. The city appeals.

— Hon. W. B. Quarton, Judge. Action in equity to enjoin the collection of tax levied for the construction of a ditch. Decree for plaintiff, and defendant appeals.

<p>Appeal from Clinton District Court. — Hon. J. W. Bollinger, Judge.</p> <p>Action in equity to enforce the payment of the proceeds of an assessment in favor of plaintiff, as beneficiary under a certificate of membership taken by her deceased husband, James A. Smith, in the defendant, which is a fraternal beneficiary association. Decree for defendant, from wbicE plaintiff appeals.</p>

<p>Life Insurance: place of contract. A policy of insurance is-1 sued to a resident of this state, executed at the home office of the company in New York and providing for payment of the insurance and premiums at said office, was a New York contract, although it contained a provision that it should become effective on delivery but there was no showing of a delivery elsewhere.</p> <p>¡Laws of Another State: authentication: presumptive evidence. 2 A book entitled ' ‘The Laws’ ’ of a state passed at specified sessions of the legislature, and bearing a certificate of the secretary of state that the volume was printed under his direction and that the certificate was made in conformity with the laws of the state, though having the imprint of a private publisher, purports to have been published by state authority and is admissible as presumptive evidence of such laws.</p> <p>Non-Payment of Premium: forfeiture: sufficiency of notice ■ of premium. In an action on a life insurance policy, to which 3 the defense of failure to pay the premiums was entered, plaintiff contending that there was not a forfeiture of the policy by reason of the insufficiency of notice of premium under the New York statute, the notice was held not insufficient because (l) sent by one not authorized to collect premiums; (2) because of the condition “if the policy be in force at that date;” (3) because of the condition ‘ ‘unless the premium shall be paid to the company or to the person authorized to collect such premium holding the company’s receipt therefor, signed by the treasurer and secretary’ ’ etc; (4) because of days of grace; or (5) because premium receipt was sent to an agent without notice to assured.</p>

— IÍon. W. R. Green, Judge. Suit by tbe plaintiff, as administrator of the estate of Almeda Farrell, to recover for ber death. There was a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. A. D. Bailie, Judge. On June 27, .1899, A. N. Finnestad and others filed with the auditor of Balo Alto county a petition for a drain, under1 the provisions of section 1940 of the Code, accompanied with an appropriate bond. Thereupon a copy of the petition was-placed in the hands of the county surveyor, who made report, with plat and profile, indicating accurately the location of' the proposed ditch.

— Hon. A. H Thornedt,, Judge. Action for the conversion of certain chattel property. Defendant denied the alleged conversion, and pleaded a counterclaim for taxes clue. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. W. G. Thompson, Judge. On October 20, 1902, defendant Poff purchased of plaintiff an Estey piano, and executed and delivered to him a mortgage on the property to secure the future payment of the entire purchase price. The piano was on that day delivered to Mrs. Poff, but plaintiff did not procure his mortgage to be recorded.

<p>Appeal from Harrison District Court. — Hon. W. B. Green, Judge.</p> <p>The opinion states tbe case.</p>

— Iíon. L. E. Eel-lows, Judge. Judgment was entered against P. G. Yarnum, surety on cost bond, for costs taxed against plaintiff, from which he appeals.

<p>Lease: option to renew: exercise: liability of lessee for rent. Mere holding oyer under a lease which provides that the lessee shall have an option to rent the premises for four years longer will not establish an exercise of the option so as to hind the tenant for rent accruing after a surrender of the premises, even though there is a farther provision that the lessee ‘ ‘will not surrender the premises without the written consent of the lessor. ’ ’</p>

— Hon. W. N. Treichler, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Accounting: contract to redeem erok foreclosure. In an ac-1 tion for an accounting based on an alleged contract with defendant to take a deed from plaintiff, redeem the property from foreclosure, sell the same and divide the profits, the evidence is considered and it is held that plaintiff failed to comply with her contract and could not recover*</p> <p>When Agent Regarded as Principal. 'Where an agent makes a 2 contract and deals wicli property as his own he will be regarded as the principal.</p>

— Hon.. N. W. Maoy, Judge. Action for partnership accounting, and to set aside conveyance of partnership property. Decree for defendants. Plaintiff’ appeals.

— Hon. A. B. Thornell, Judge. Action at law to recover an amount claimed by plaintiffs to liave been overpaid by them to tbe defendants upon a note executed to the defendant bank for the sum of $2,100. It is claimed that the amount was paid through mistake, and was due to the fraud of the defendants in concealing certain payments theretofore made upon said note.

— Hon. Wm. G. Thompson, Judge. > Wild, as administrator of the estate of Mary Johnson, deceased, filed objections to the final account of Toms,' as administrator of the estate of Joseph Johnson, the husband of said Mary Johnson, who died prior to the death of Mary Johnson, and while the latter was under guardianship on account of insanity., The court found that Toms should pay to Wild the sum of $293.24 out of the balance remaining in his hands undistributed, and overruled…