Volume 127 — Iowa Reports

<p>1 Express companies: title in consignee: presumption. The title to property is presumed to pass to the consignee when delivered to an express company for transmission, and such presumption will support an action by the consignee either in tort or for breach of contract.</p> <p>2 Instruction: express company receipt. In a suit against an express company for the value of a package supposed to contain currency, refusal to instruct that the receipt given by the company was only prima facie evidence of the receipt of the money, was not error where the court did instruct that there could be no recovery unless it was shown- that the package contained the money at the time of the delivery.</p> <p>3 Consignor and consignee. Where an express company undertook to investigate the loss of currency delivered to it for transmission, an act of the consignor touching the investigation of which the consignee had no knowledge, was not binding upon the consignee in a suit against the company to recover .the money.</p> <p>4 Evidence: moral character: res gestae. In an action by a consignee against an express company for failure to deliver money consigned to it, evidence of the good moral character of'the company’s employés was inadmissible; and evidence that the consignor had been losing money through the- theft of its em-ployés was also inadmissible where such theft was not part of the transaction in question.</p> <p>5 Evidence: comparison op objects. It was not error to refuse to permit a witness to testify that stains on scraps of paper found in an express package supposed to contain currency were the color of the consignor’s bank counters, where it was shown that the stains were from tobacco and that the counters were varnished but no evidence as to how recently, and for the further reason that the jury could make the comparison as well as the witness.</p> <p>6 Nondelivery of money: verdict for consignee. In an action by a consignee against an express company for the nondelivery of money, where the evidence tends to show that the package contained the currency when delivered to the company for transmission, a verdict for plaintiff cannot be said as a matter of law to be without support although it is also shown that the package when delivered contained only waste paper.</p>

H. PkestoN, Judge. AotioN on an alleged promise of defendant to pay. an 'account owing plaintiff by one Wilson, and also to pay for goods subsequently furnished him. Judgment was rendered as prayed, and .defendant appeals.

<p>Homesteads: liability for antecedent debt: pension money. Property purchased with pension money belonging to the husband, but at his direction conveyed to his wife and subsequently occupied by them as a homestead, is not exempt from execution and sale under Code, section 4010, for a debt of the wife contracted prior to its acquisition.</p>

— Hon. J. H. Peeston, Judge. Action by plaintiff, as assignee of N. P. Harrington, to recover damages for personal injuries received by the latter while in defendant’s employ as brakeman, resulting, as alleged, from the negligence of defendant in failing to place proper and sufficient foot guards or blocks between the main rail and the guard rail of its track at a switch; the result of the defect being that Harrington’s foot was caught between the rails while he was…

— - Hon. O. D. Wheeler, Judge. Suit at law to recover on an accident certificate issued to W. E. Haverstock by the defendant on the 22d day of July, 1898. At about eleven o’clock in the night of July 21, 1901, Mr. Haverstock went into the bath-room in his residence for the purpose of taking his usual nightly bath, and about 30 minutes thereafter, he was, found in the tub in a semiconscious condition.

— HoN. Gf. W. Burn-iiam, Judge. ActioN to quiet title. A' demurrer to the petition was overruled, and, defendants having elected to stand on the ruling, decree was entered as prayed. The defendants appeal.

<p>1 Rape: assault: vaexance. Although the evidence in support of an indictment charging an assault with intent to commit rape on a female under the age of consent fails to show force as alleged, the variance is not fatal.</p> <p>2 Included offenses: submission. Where defendant was convicted of assault with intent to commit rape, a submission of the offense of assault and battery, though not charged in the indictment, was harmless error.</p> <p>3 Same. Under an indictment for assault with intent to rape, submission of the issue of assault with intent to do great bodily harm is not justified, where there is no evidence of intent to do bodily injury except such as naturally follows intercourse with an immature female, as such injury inheres in the greater offense.</p> <p>4 Instructions. Although certain instructions standing alone appear to assume the truth of matters appearing in the record, yet if considered in connection with the entire charge the instructions as a whole are not misleading, a reversal will not be ordered.</p> <p>5 Evidence: intent. On a prosecution for assault with intent to commit rape on a female under the age of consent, it appearing that defendant assaulted three other girls of similar age at about the same time, evidence that he had written notes to the others as well as prosecutrix stating that when opportunity offered he would have intercourse with them, was admissible on the question of intent.</p> <p>6 Same. The fact that intercourse was not actually accomplished is insufficient to show absence of intent to commit rape, under a charge of assault with intent to commit the offense.</p> <p>7 Examination of witnesses. Youth and inexperience justify latitude in the examination of a witness.</p>

— HoN. N. W. Macy, Judge. ActioN in equity by plaintiff to recover from ber bus-band, tbe defendant, Hugh L. Walker, alimony for tbe separate maintenance and support of berself and minor child; also, as against tbe defendants Juliette W. Walker and D. E. Bowen, to subject certain real estate to tbe payment of the award to be made to ber. Tbe facts, as far as material, will be found stated in tbe opinion.

— How. N. W. Macy, Judge. ActioN for damages. Verdict was directed for defendant, and from judgment tbereon tbe plaintiff appeals.—

— Hon. ActioN at law to recover damages for injuries received by plaintiff, due to a fall upon one of tbe walks of the defendant city. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— HoN. James A. Howe, Judge. Suit iu equity to subject certain real estate to the lien of a judgment obtained by plaintiff against the Prospect Park. Methodist Episcopal Church. Decree dismissing bill, and plaintiff appeals.

— HoN. James A. Howe, Judge. ActioN in equity to 'set aside au auditor’s plat of certain lots within .the corporate limits of the city of Des Moines, on the ground that such plat was made without authority, and that it casts a cloud upon the' title of plaintiff as owner of certain of the lots or tracts covered by such plat. Intervenor joins issue with plaintiff, and asks that plaintiff’s petition be dismissed upon its merits.

— HoN. W. D. Evans, Judge. ActioN to recover the value of a team of horses destroyed by fire while in the possession of defendants as bailees for hire. At the close of all the evidence there was an instructed verdict in favor of defendants, and a judgment against plaintiff for costs. Plaintiff appeals.

— ■ Ho-N. J. K. Whit-AKee, Judge. This action was originally brought before a justice of the peace. Defendant, although duly served with notice, did not appear, and judgment was rendered against him by default. He thereupon appealed to the district court, where the cause was properly docketed, but defendant did not file answer in that court until the seventh day of the term for which the case was docketed.

— Hon. Peane-lin 0. Platt, Judge. AotioN oh beneficiary certificate in defendant association. Judgment in favor of intervenor claiming the benefit as against plaintiff. Plaintiff appeals.

<p>Appeal from Johnson District Court.— HoN. O. A. ByiNG-toN, Judge.</p> <p>Suit in equity to foreclose a mechanic’s lien. Decree for plaintiff, and defendants appeal.</p>

— HoN. W. D. EvaNS, Judge. ■ ActioN on a claim for $230 against an estate. An item of $17 was allowed, and tbe balance of tbe claim rejected. Tbe claimant appeals.

<p>Taxation: assessment of credits: deduction for debts. The term “ debt ” as used in Code, section 1311, does not include delinquent taxes in the sense that the statute authorizes a taxpayer to set off against the assessment of his moneys and credits, the unpaid taxes of a previous year, as a debt in good faith owing by him.</p>

— HoN. J. IT. Kich-aed, Judge. ActioN to foreclose a mortgage on real estate against defendants, as grantees of tbe mortgagor, and to recover judgment against such grantees for tbe amount of tbe mortgage indebtedness.

— Hon. A. IT. MoVey, Judge. The plaintiff, a minor, entered the pharmacy department of Highland Park College under a written contract that provided for a course of twelve weeks’ instruction therein, and for the payment of a stated sum for tuition, hoard, room rent, light, heat, etc., aggregating the sum of $83. He paid this sum in advance, quit the school soon thereafter, and brings this suit to recover the unearned portion of the sum so paid.

<p>Appeal from Lkm District Court. — HoN. TI. M. Remley, Judge.</p> <p>Suit in equity for the partition of real estate. The trial court found that the plaintiff had no interest in the property, and he. appeals.</p>

<p>1 Heating contract: workmanlike manner: utility. An agreement to install a steam heating plant in “ a good and workmanlike manner ” implies not only that t-he work will be well done but that the plant will operate with reasonable success; and if its successful operation requires a readjustment of the apparatus, it should be done by the contractor at his own expense.</p> <p>2 Implied warranty. An express warranty in a contract of sale of personalty will not exclude an implied warranty on another subject concerning which the writing is silent.</p> <p>3 Same. A provision in a contract for installing a heating plant, that • the writing fully expresses the agreement, does not exclude an implied warranty of its usefulness, where one would otherwise exist.</p>

— IIpN. C. P. Holmes, Judge. AgtioN at law to recover damages for personal injury. At the close of the evidence, the court directed a verdict for the defendant, and plaintiff appeals.

— Hon. W. IT. McHenby, Judge. ActioN for damages alleged to have resulted from tbe suing out and levy of a writ of attachment. Judgment was entered on a verdict for the plaintiff, from which defendant appeals.

<p>Appeal from Glay District Court. — ■ HoN. W. B. Quaetoh, Judge.</p> <p>The defendant was indicted for obtaining property under false pretense. Trial being bad, be was convicted, and from tbe judgment entered be appeals.</p>

<p>Quieting' title: mutual mistake: adverse possession. Where a deed by mutual mistake did not include the land intended by both grantor and grantee to be conveyed, but the grantee occupied the property to the line pointed out by his grantor for more than ten years, an action to quiet title by an adjoining owner acquiring his title from the same grantor will not lie.</p>

— ITon. Robert Sloan, Judge. This is an action to restrain defendant from maintain--ing a ditch or dam along a private lane between plaintiff’s and defendant’s land in such a manner as to obstruct the natural flow of surface water, and from keeping open a ditch at the west end of the lane, and from damming a ditch on the south side of the lane in such manner as to increase the flow of water on plaintiff’s land.

— IíoN. W. D. EvaNS, Judge. Tins case was submitted on an agreed state of facts, in pursuance of chapter 13, title 21, of the Code.

— HoN. W. B. QuaetoN, Judge. This action was originally brought at law to replevin certain furniture and fixtures used by the defendants Wolfe and wife in conducting a hotel as tenants of the plaintiff.

— HoN. A. B. Thoenell, Judge. Action of quo wmrcmto to oust the defendant from the streets and alleys of the city of Council Bluffs, and from the public highways of the county of Pottawattamie generally. The original petition alleged that the defendant had no franchise from the city, and was occupying its streets without right or authority of law.

<p>Insolvent banks: preferred creditors : distribution of assets. On the insolvency of a bank and appointment of a receiver under Code, section 1877, depositors are preferred creditors and entitled to be first paid in full, after deducting costs and expenses, from the general assets of the bank, and in case the assets of the bank are insufficient for that purpose they are also entitled to ratably share with all creditors in the distribution of proceeds arising from a statutory assessment of the stockholders. •</p>

— Hon. L. E. Eel-lows, Judge. Action to recover damages fox tbe wrongful and unlawful forfeiture by tbe defendant company of a policy of life insurance beld by plaintiff therein. Tbe case was by agreement tried to tbe court without a jury, resulting in a judgment for plaintiff for tbe amount of premiums paid, with interest. Defendant appeals.

— IíoN. C. W. Vermillion, Judge. ActioN in equity for an accounting as for the rents and profits of certain real estate. The opinion states the case. There was judgment in favor of plaintiff against the defendant W. J. Steckel, and the latter appeals.

— ■ HoN. A. D. Bailie, Judge. Suit at law to recover money paid on a contract for tbe purchase of real estate. A demurrer to tbe petition was sustained, and plaintiff appeals.

— 'Hon. L, E. Eel-lows, Judge. Action at law to recover damages for personal injuries. Verdict and judgment for defendant, and tbe plaintiff appeals.-

— HoN. A. B. Thor-hell, Judge. The plaintiff in a replevin action elected to take judgment for tbe value of the property, and, after this was entered, moved for judgment against the sureties on the delivery bond. The motion was overruled, and plaintiff appeals.

<p>Appeal from Ga/rroll District Court.— Hon. Z. A. Church, Judge.</p> <p>Action at law, brought against the administratrix of the estate of one who was liable to pay the amount of a mulct tax, and the owners of the property upon which the business was conducted and on which it was claimed that the tax was a lien. On motion of the property owners, a verdict of the jury was directed in their favor, and judgment was entered against the administratrix only. The plaintiff appeals.</p>

— Hon. 'P. M. Powejjs, , J udge. Dependant Hoyt obtained a judgment before a justice of the peace against the plaintiff, Hannascb, upon two promissory notes, each of which gave a justice jurisdiction to an amount not exceeding $300. The notes were for. $52.18 each. Thereafter the judgment was transcripted to the district court-, and from that court an execution issued, which was levied upon plaintiff’s property.

— IíoN. A. D. Bai-lie, Judge.' Suit in equity for the specific performance of a contract to convey real estate. There was a decree for the plaintiff, from which the defendant appeals.

- — • IíoN. J. R. Wiiit-AKER, Judge. ActioN on account, to wbicb tbe defendants, interposed a counterclaim. There was a jury trial, and verdict and judgment in favor of defendants. Plaintiff appeals.

<p>Appeal from Harrison District Court.— HoN. N. W. Macy, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Shelby 'District Court. — HoN. O. D. Wheeler, Judge.</p> <p>Suit at law on a promissory note. Judgment for the plaintiff on the pleadings. The defendant J. O. Bamsay appeals.</p>

— HoN. J. P. Clyde, Judge. AotioNS to enforce mechanics’ liens against the property of the defendant, Grant. The trial court rendered judgment against the principal contractor for the sum of $1,-170.75, and established liens against the owner of the,property to the amount of $842.88. Both parties appeal, but as defendant was the first one to perfect an appeal, he will be called “ appellant.”

<p>1 Specific performance. Where a vendor agreed to furnish an abstract showing good and merchantable title and a part of the land was subject to a mortgage, a conditional release of the mortgage did not render the title merchantable so as to entitle the vendor to specific performance, in the absence of evidence that the conditions had been performed.</p> <p>2 Abstract; condition precedent. The performance of a condition that the vendor of land shall furnish an abstract showing good and merchantable title, is precedent to the vendee’s obligation to pay the price.</p> <p>3 Duty of vendor. The statement of a vendor who agreed to furnish an abstract showing good title, that he had a release of land from a mortgage, did not relieve him from the obligation to have it recorded and exemplified on the abstract.</p>

<p>1 Jurisdiction: dismissal op action : nonresident defendant. Where jurisdiction is acquired of a’resident of another county by joining him with a resident defendant, and the action is subsequently dismissed as to the resident defendant, it should also be dismissed on an objection to the jurisdiction as to the nonresident under Code, section 3502, unless it is an action in replevin and such defendant is in possession of the property.</p> <p>2 Replevin: pleadings: nonresident defendant. A petition in an action for the recovery of personal property which alleges that the defendant sheriff of another county levied upon the same and that prior to the commencement of the action said property had passed from his possession, does not state a cause of action in replevin but for conversion, and the court of the county in which the action is brought has no jurisdiction of such nonresident defendant.</p>

— IíoN. F. M. Powees, Judge. ActxoN to recover damages for personal injuries received while in defendant’s employ. At the conclusion of the evidence for tire plaintiff, the court, on motion, directed a verdict for the defendant. Plaintiff appeals.

— TIoN. W. B. QuartoN, Judge. This is an action in equity to recover the contract price of certain real estate, and to establish and foreclose a vendor’s lien thereon. The trial court rendered a personal judgment against the defendant, and decreed and foreclosed a vendor’s lien upon the property. Defendant appeals.'

— HoN. W. R. Green, Judge. Oeig-INAxly this was an action for tbe conversion of certain personal property upon wbicb plaintiff held a chattel mortgage. Tbe defendant tendered sncb issues as took tbe case to tbe equity side of the calendar, where it was tried by tbe court, resulting in a judgment for tbe plaintiff in tbe sum of. $213, and tbe dismissal of defendant’s cross-petition. Defendant appeals.

— HoN. J. F. Clyde, Judge. The indictment accused the defendant of having committed the crime of larceny, and was in two counts, the first of which charged that he Did, on the day stated, embezzle and convert to his own use certain money, the same being lawful money-of the United States, in the amount and of the value of two hundred and sixty dollars, without the consent of’ the owner thereof, the said money being then and there the property of one Stephen Mulrooney, and…

'Appeal from Oalhoun District Court. — Hon. Z. A. Church, Judge. Action at law to recover tbe purchase price of a quantity of oats and corn alleged to have been sold to tbe defendant. From a judgment for tbe defendant notwithstanding tbe verdict of tbe jury, tbe plaintiff appeals.

<p>Appeal from Galhoun District Court. — IIon. S. M. El wood, Judge.</p>

— HoN. L. E. Eellows, Judge. Action upon a promissory note. To the answer of the defendant a demurrer was interposed, and this was overruled. Plaintiff appeals.

— HoN. R. L. Paeeish, Judge. Dependant was indicted, tried, and convicted of tbe crime of incest, and from tbe judgment against bim appeals.

<p>1 Mutual insurance: levy of assessments: cancellation of policy. The board of directors of a mutual insurance company has no authority to confer on the secretary power to levy an assessment under' Code, section 1706, and failure of an assured to pay an assessment made by the secretary is not ground for •cancellation of the policy.</p> <p>2 Defenses: estoppel. Where a mutual insurance company denied liability for a loss, solely on the ground that the policy was suspended by reason of non-payment of an assessment ille-' gaily levied, 'it could not, after suit was begun and costs incurred, amend its answer and ■ base its nonliability on a different ground.</p>

<p>1 Confessions. Where -a confession is offered in evidence, the accused is entitled to have his entire statement produced before the jury.</p> <p>2 Intoxication as a .defense: instructions. The mere ffict that defendant drank liquor shortly previous to the commission of the crime charged, was not such evidence of intoxication as to require its effect upon his mental condition to be submitted to the jury.</p> <p>3 Misconduct: argument. On a prosecution for murder, it was not misconduct for the state’s counsel to relate in argument an instance where a minister killed his wife where in response to argument of defendant’s counsel that accused was a member of the church, or to illustrate the slight motive sometimes impelling crime, or to comment on the depravity of the murderer; but the relation of an instance in which a member of the panel which acquitted a defendant took part in afterward lynching him, while not reversible error, was improper.</p> <p>4 Murder: manslaughter: instructions. On a prosecution for murder, the instructions of the trial court in relation to murder and manslaughter are reviewed and sustained by opération of the statute, the court being equally divided, oyer the objection that the same set forth simply the general and abstract propositions of law, without making a specific application of the law relating to manslaughter to the proven facts.</p> <p>Opinions by Justices Sherwin and Ladd.</p>

-— HoN. J. II. Richard, J udge. DeeeNDANT was indicted for practicing medicine as an itinerant physician without a license. He demurred to the indictment, and his demurrer was sustained, and the case dismissed. The State appeals.

- Host. J. B. Whitaker, Judge. ActioN to recover commission alleged to have- been earned by plaintiff under a contract for the sale of defendant’s land. Verdict and judgment for defendant. Each party appeals, but plaintiff, appealing first, will be treated as appellant.

<p>Mulct law: violation : separate warehouse. The maintenance of a cold storage warehouse separate and removed from defendant’s saloon, in which defendant stored beer in carload lots and removed the same to his saloon as needed, is prohibited by Code, section 2448, providing that the selling or keeping for sale of intoxicating liquors shall be confined to a single room.</p>

— Hon. A. B. ThorNe,ll, Judge. The appellants M. B. and Mary II. Musser are husband and wife. In 1900, being about to go abroad, they applied to Officer & Pusey for foreign exchange, who advised them to purchase checks of the American Express Company, and procured for them such checks to the amount of $1,800.

Appeals from Oerro Gordo District Court. — IíoN. C. H. Kelly, Judge. ActioNS to recover the par value of certain shares of stock in the defendant company, pursuant to a contract whereby the defendant promised and agreed that in the event it sold any of its connections, franchises, or business in the State of Minnesota, it would repurchase of the plaintiffs and pay the par value of any shares of stock in the company owned and held by them.

<p>Appeal from KossutH District Court. — IíoN. W. B. Quar-toN, Judge.</p> <p>The opinion states tbe case.</p>

— HoN. Fred O’DoN-Nell, Judge. This is a proceeding based upon exceptions to a report of D. A. Gehrig, as guardian of the minor heirs of Henry Holscher, deceased. An accounting was also prayed for and bad before tbe court, and from tbe order and judgment entered tbe petitioners appeal.

Appeal fr.am,Cass District Court. — HoN. A. B. TeoeNell, Judge. AotioN to recover damages for personal injuries received by plaintiff through the fall of a county bridge. The accident happened June 5th, and this suit was commenced September 1, 1903. Plaintiff filed his claim with the county auditor August 24, 1903; but the board of supervisors of defendant county did not act thereon until September 9th, when it rejected the claim, and denied all liability to plaintiff.

<p>1 Corporations: promoters. One who engages in the work of organizing a company for the purpose of purchasing from the owner certain 'patents and the' machinery for manufacturing the same, aids in procuring subscriptions to stock and perfecting an incorporation for that purpose, is a promoter.</p> <p>2 Secret profits: accounting. A promoter of a corporation, on becoming a member and one of its directing officers, occupies a fiduciary relation to the organization and may be held to account for any advantage he may gain over other stockholders by a sale of property to the corporation in which he may have secretly acquired an interest.</p> <p>3 Fraud: limitations: laches. The statute of limitation will not commence to run against an action for fraud until the fraud is discovered. Evidence held sufficient to excuse plaintiff’s failure to sooner discover the right of action.</p>

<p>Appeal from, Dickinson District Goiurt.— Hon. W. B. Quar-ton, Judge.</p> <p>Action to recover the value of buildings and furniture destroyed by fire alleged to have been negligently started by an employe of the defendant. There was a. verdict for the plaintiff, and from judgment thereon the defendant appeals.</p>

<p>Appeal from Crawford District Court. — IIoN. Z. A. Ci-iurcii, Judge.</p> <p>The opinion states tbe case.</p>

— How. F. W. Eichel-BEBGEIt, Judge. Actiow of replevin to recover tbe possession of two typewriters. Defendant Davis claimed 'to bold tbe same 'in pledge to secure a loan of money. Tbe case was tried to tbe court, a jury being waived, resulting in a judgment for tbe defendant, fixing tbe value of bis interest in tbe property at $134.23, being tbe amount of tbe alleged loan with interest. Plaintiff appeals.

<p>Appeal from Polh District Court.— HoN. W. H. McHeNby, Judge.</p> <p>The defendant, with his wife, Emma Dickerhoff, was indicted upon the charge of enticing a virtuous female to a honse of ill fame for the purposes of prostitution and lewdness. Upon trial to a jury he was adjudged guilty, and appeals.</p>

<p>1 Schools: sale of books: injunction: rights of taxpayer. A school board has no authority to contract with a bookseller and pay him out of the contingent fund for handling school books, where the district does not buy the books for resale but simply arranges with the publishers to place the same with the dealer to be sold by him at a stated price; and a taxpayer may maintain- an action to restrain payment under such a contract.</p> <p>2 Estoppel. The fact that a taxpayer at one time was a party to an illegal contract with a school district to handle books placed with him for sale, did not estop him from maintaining a suit to restrain payment by the district under a similar contract with another.</p>

<p>Appeal from Polla District Court.- — ■ Host. -W. H. McHenry, Judge.</p> <p>The defendant was convicted of obtaining money under false pretense, and be appeals.</p>

— How. 0. Caswell, Judge. Action for damages occasioned Wy tbe removal of earth beyond the line of defendant’s right of way. Trial resulted in a judgment against defendant, from which it appeals.

<p>1 Privileged communications: statements to county attorney. A communication made by a prosecutor to a county attorney, relating to a charge of crime and the arrest and prosecution of the accused therefor, is privileged under Code, section 4608, in a subsequent action by the accused against the prosecutor for slander and malicious prosecution; and independent of the statute, the evidence should be excluded on the ground of public policy.</p> <p>2 Evidence: objection: waiver. Where a general objection is made to the offer of a certain class of incompetent evidence, failure to repeat the objection to each question as asked, is not a waiver of the former ruling admitting it.</p> <p>3 Malicious prosecution: malice. In an action for malicious prosecution, no recovery of damages can be had without a finding of malice.</p>

<p>Appeal from Calhoun District Court.— Hon. Z. A. Chuech, Judge</p> <p>Action to recover damage for injuries to personal property. The opinion states the case. At the close of the evidence there was a directed verdict and judgment in favor of defendant, and plaintiff appeals.</p>

— HoN. F. M. Powers, Judge. ActioN to recover damages to real estate. The opinion states-the case. Trial to jury, and verdict and judgment for plaintiff. Defendant appeals.

- HoN. W. G. Thompson, Judge. ActioN to recover damages against defendants for personal injuries inflicted on plaintiff while plaintiff was under .-arrest, in the custody of'defendants as sheriff and deputy. 'There were a verdict and judgment for the defendants, and ■plaintiff appeals.

<p>1 Assault with intent to commit murder: evidence of threats. In a prosecution for assault with intent to commit murder, evidence of previous threats of violence towards prosecutrix is admissible on the question of intent.</p> <p>2 Evidence: character of defendant. The State may not assail the 'of a defendant directly until he has put it in issue, and then only by evidence of his general reputation or actual character with respect to the trait involved, and not by showing instances of misconduct.</p> <p>3 Cross examination of defendant: other offenses. On a prosecution for assault with intent to commit murder, cross examination of defendant as to whether he had assaulted another in the presence of the prosecutrix should be denied.</p> <p>4 Evidence: medical authority: cross examination. It was prejudicial error to permit the inquiry of a witness on cross examination, if a certain medical authority did not lay down the doctrine that insanity resulting from negligence should not shield the lunatic from punishment, counsel at the time reading from the authority, as it amounted to an attempt to get the book before the jury without offering it in evidence; and for the further reason that the questions were not pertinent.</p> <p>5 Evidence: bad character: instruction. On a prosecution for assault with intent to' murder, where there is evidence that the prosecutrix was of bad moral character, the jury should be instructed that the only purpose of such evidence was to discredit her testimony, although instructed that the evidence of bad character furnished no excuse for the assault.</p> <p>6 Instruction: circumstantial evidence. An instruction that circumstantial evidence “is to be regarded as direct and positive evidence of eye witnesses,” is error.</p> <p>7 Instruction: included offenses. The court should define the offenses included in an indictment or apply the law to the facts so that the jur can understand what state of facts constituted each offense.</p>

<p>1 Beneficial insurance: new trial: newly discovered evidence, Where a beneficial association, pending an action by one of two contesting claimants, paid the amount of a death loss to the other in the regular and usual way but neglected to inform its counsel of the fact, the association, after judgment against it, could not urge that such payment constituted newly discovered evidence, entitling it to a new trial.</p> <p>3 New trial: inadvertence or mistake: evidence. A new trial will not be granted on the ground of unavoidable casualty, misfortune or mistake, where it appears that the judgment was entered through the negligence of the party applying therefor. Evidence held to show negligence.</p>

Appeal fróm Dubuque District Court. — ■ Host. Need Ó’DoN-Nell, Judge. Suit in equity for the foreclosure of a mortgage upon the property of the defendants Jess. The city of Dubuque was made a party to cut off its lien, by reason of some special assessments made against the property. To the petition as amended and a supplement thereto, the city demurred. This demurrer was sustained, and plaintiffs appeal.

— HoN. G. W. Buejst-ham, Judge. AotioN to recover damages for injuries suffered by plaintiff by having bis body burned by the use of an X-ray machine, while being treated by defendant, as a physician, for appendicitis. Verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Dubuque District Court.- Hon. Feed O’Donnell, Judge.</p> <p>The opinion states tbe case.—</p>

<p>Written contract: alteration by parol. The terms of a written contract cannot be extended or enlarged by a parol agreement.</p>

Appeal front Linn District Court.— HoN. J. H. PR.estoN, Judge. Suit in equity to cancel a special assessment made by tbe defendant city against plaintiff’s property for paving, curbing, and guttering a street in front thereof; to expunge tbe record of said assessment, and to restrain tbe defendants from advertising or selling tbe property for said tax; from collecting tbe said assessment, or any part thereof; and for general equitable relief.

<p>Appeal from Linn District Court.— HoN. J. H. PbestoN, i Judge.</p> <p>The opinion states the case.</p>

A.ppeal from Washington District Court.— Hon. W. G. CLEMENTS, Judge. Aotion to recover damages for personal injury. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Dubuque District Court. — • Hon. M. C. Matthews, Judge.</p> <p>Original notice to the effect that unless defendants should appear before John Grab, Esq., a justice of the peace in and for Julien township, Dubuque county, on January 9, 1904, at nine o’clock a. m., and make defense, judgment would be rendered against them, was duly served in the township mentioned five days previous to that date. , At the hour named a verified account was filed, and, as defendants failed to appear, judgment was entered against them for $16 and costs in plaintiff’s favor. Some days later an affidavit asserting that at the time of and since the beginning of the suit defendants were residents of Linn county, and alleging that for this reason the justice erred in rendering judgment, was filed with the clerk of the district court, and a writ of error issued accordingly. The justice’s return showed the facts as stated, and thereon the plaintiff moved that the writ be dismissed on the ground that such return failed to show the error complained of to have been committed. This motion was overruled, and evidence received, over plaintiff’s objection, that the defendants were residents of Linn county, as stated in their affidavit. The court found that the justice did not have jurisdiction of the parties, and set aside the judgment. Plaintiff appeals.</p>

— HoN. W. G. THOMPSON, Judge. ActioN to recover damages for an alleged nuisance. Defendant denied' tbe keeping or tbe maintenance of a nuisance, pleaded a former adjudication or judgment in bar of plaintiff’s action, and an estoppel. To tbis plaintiff filed a reply, to wbicb tbe defendant demurred.

— Hon. N. W. Maoey, Judge. Action for damages alleged to liave been occasioned by negligently obstructing water in the street, thereby causing it to flow on plaintiff’s premises. Judgment for plaintiff, from which defendant appeals.

<p>Appeal from O’Brien District Court.— Hon. Wm.’Hutchinson, Judge.</p> <p>Action by plaintiff, as assignee of a note for $2,800, executed by defendant Warren Walker, secured by a mortgage on certain described real estate of Warren Walker and bis wife, M. A. Walker, to tbe American Savings Bank, as security for any judgment wbicli tbe bank might recover in an action to enforce a landlord’s lien-against tbe Shaver Carriage Company. A judgment was recovered by tbe bank against tbe carriage company, and on an appeal prosecuted by tbe carriage company, with tbe plaintiff in this action as surety on tbe appeal bond, tbe judgment was affirmed. Tbe bank baying assigned tbe note and mortgage to plaintiff, this action is brought to recover tbe amount of judgment and costs, less a small payment, tbe proceeds of a claim made by tbe bank in bankruptcy proceedings in wbicb tbe assets of tbe carriage company were disposed of, and tbe proceeds distributed among tbe creditors. Tbe defense interposed was that tbe bank, while bolder of tbe note and mortgage, bad released property of tbe carriage company, wbicb it held under landlord’s attachment, more than sufficient to satisfy its claim. Defendant Yan Liew was made a party to tbe foreclosure proceedings, as claiming title to tbe mortgaged premises under a tax deed. Tbe trial court rendered judgment in favor of plaintiff against defendant Warren Walker for $1,885.92, and directed tbe sale of tbe mortgaged premises to satisfy tbe judgment, and decreed that tbe tax title claimed by Van Liew was inferior and subordinate to tbe lien of tbe mortgage. Tbe defendants appeal.</p>

<p>1 Execution sale: cancellation: Recovery of purchase money. A purchaser at a judicial sale must have had actual knowledge that the property was not subject to the lien of the judgment under which the sale was made to defeat his right to recover the price paid on a cancellation of the sale, under Code, section 4034. ' •</p> <p>2 Same. A purchaser at judicial sale although charged with knowledge of the legal conclusion of the existence of a homestead interest in the property arising from facts tending to show such interest, is not deprived of his right to recover the purchase money on a cancellation of the sale, where it appeared that other material and controlling facts as to the validity of the homestead claim were unknown to him.</p> <p>3 Same. The fact that a judicial sale of a homestead was set aside at the instance of the owner, will not deprive the purchaser at such sale of his right to recover back the purchase money paid by him.</p> <p>4 Estoppel. The fact that the purchaser at an execution sale resists the suit of the owner of. the property to set aside the sale on the ground of a homestead interest therein, will not estop him in the event of a cancellation of the sale from recovering back the purchase money.</p>

- — IloN. Joi-iN T. Scott, Judge. UNDER an indictment charging an assault with intent to commit murder, tbe defendant was convicted of assault with intent to commit great bodily injury, and was sentenced to imprisonment in tbe county jail for tbe term of three months. Trom. this sentence be appeals.

— HoN. M. A. Nobeets, J udge. DeeeNDANT was indicted for murder. To this indictment he entered a plea of guilty, and, after hearing the evidence, the court ordered that he be hanged. From the judgment so entered the defendant appeals.

<p>Waters: embankment of stream: overflow: injury to another. A riparian owner cannot lawfully embank against the natural overflow of an inland stream, where the same will cause an increased volume of water to flow upon the land of another to his injury.</p>

<p>Appeal from Monroe District Court. — Hon. Kobert SloaN, Judge.</p> <p>INDICTMENT for murder. Verdict of manslaughter, and judgment that the defendant be confined in the State Penitentiary for the term of three years. Defendant appeals.</p>

— TIon. William Hutchinson, Judge. Suit in equity to set aside and cancel a deed for certain lands in Cherokee county. Trial to the court, decree dismissing plaintiff’s petition, and she appeals.

— HoN. Edm:und Nichols, Judge. ActioN to recover for services rendered.

<p>Appeal from, Woodbury District Court-. — IIon. Wm. Hutchinson, Judge.</p> <p>The opinion states the case.</p>

— HoN. W. D. EvaNS, J udge. ActioN to recover damages to plaintiffs’ property Jue to the diversion of surface water thereon, and to restrain defendant from maintaining the ditches' and drains whereby it is alleged he unlawfully collected and discharged the water upon plaintiff’s land. Trial to the court, decree dismissing plaintiff’s petition, and he appeals.

— Hon. J. E. Whit-AKEK, Judge. ActioN to recover damages for libel. Verdict for plaintiff for $1,500. On motion for a new trial tbe plaintiff elected to remit $500, to avoid tbe setting aside of tbe verdict by tbe court on tbe ground that tbe amount allowed- was excessive. From judgment in favor of plaintiff for tbe balance, tbe defendants appeal.

— TIon. Wm. Hutchinson, Judge. Suit at law to recover money paid on tbe purchase price of real estate. There was a directed verdict for the plaintiff, and from a judgment thereon the defendant appeals.

— Hon. W. S'. Withrow, Judge. A portion of the cost of curbing and paving the street was assessed against three lots belonging to plaintiff. On appeal to the district court the levy was approved, and he again appeals.

<p>Wills: construction: lapse of devise. The heir of a devisee who dies before his testator will inherit nothing through him, where it appears from the terms of the will that the testator intended that the devise should lapse in that event and a different distribution of the entire estate should be made.</p>

— • HoN. Hugh BreNNAN, Judge. ActioN to recover dividends alleged to bave been declared by defendant, and wbicb it refused to pay. Judgment as prayed, and it appeals.

— HoN. Robert SloaN, ■ Judge. The plaintiff commenced two suits before a justice 'of the peace, in one of which he asked a judgment for $30.35, and in the other judgment for $33. Default was made in both, and before judgments were entered the plaintiff orally remitted in each .case the amount claimed in excess of $25, and judgment for said sum, with costs, was entered in each case. The costs included an attorney’s fee also.

— HoN. F. B. Gay-Nor, Judge. ActioN at law to recover damages for injuries received by plaintiff in falling into an elevator well of a building owned by defendants James P. & T. S. Martin. Tbe other defendants were tenants of the Martin’s, and they are sought to be held liable as joint tort feasors. At the conclusion of- plaintiff’s evidence, the trial court directed a verdict for the defendants, and plaintiff appeals.

— Hon. Hugh Brennan, Judge. Action in equity, originally brought by plaintiff and others, claiming to be depositors in the defendant bank, for the appointment of a receiver on the ground that the bank had not sufficient funds to pay its depositors, and to recover judgment against the bank for the amount of plaintiffs’ respective deposits, and for an accounting, etc.' Application was made for a temporary receiver, but was refused.

Appecfl from Scott Distñct Court.— Hon. Jas. W. Bol-LINGER, Judge. Suit to recover damages for a personal injury. There was a directed verdict for the defendant, and a judgment thereon, from which the plaintiff appeals.—

— Hon. Byeon W. 'Pbeston, Judge. Suit in equity to enjoin tbe enforcement of certain assessments made by tbe defendant association, to annul and cancel a policy of insurance, to declare that plaintiffs are not members of tbe defendant association, and for other equitable relief. Tbe trial court granted tbe relief prayed, and defendant appeals.

— Host. EdmuND R. Nichols, Judge. ActioN to enjoin a road supervisor from removing certain fences. Subsequently the township trustees were substituted as parties defendant. Upon hearing, the temporally writ of injunction was made permanent, and defendants appeal.

<p>Appeal from Johnson District Court.— Horn O. A. ByiNG-toN, Judge.</p> <p>ActioN in equity for specific performance of an alleged contract to convey land. Decree for plaintiff, and defendants appeal.</p>

— HoN. O. A. BytNG-toN, Judge. This case comes to ns on an appeal from an order denying a new trial because of newly discovered evidence.

— HoN. Vm. Hutch-iNSON, Judge. ' ActioN to recover damages for personal injuries received by plaintiff in consequence of a fall on a sidewalk in defendant city, occasioned by a defect in suck sidewalk. At the conclusion of plaintiff’s evidence the court sustained defendant’s motion to direct a verdict in its favor, and plaintiff appeals from the judgment entered for defendant in pursuance of this ruling.

— HoN. M. A. Rob-sets, Judge. The defendant, after plea of not guilty, was convicted of the crime of being found in possession of burglar’s tools with iútent, etc., and he appeals.

— HoN. J. R; Whit-AKER, Judge. ActtoN to recover payment made on a contract to purchase land. Judgment as prayed, from which the defendant appeals.

— HoN. J. H. Richard, Judge. Habeas corpus proceedings to determine right to the custody of the plaintiff, James Melby Holmes, an infant. Judgment awarding such custody to Almon B. Holmes, and defendants appeal.

<p>Intoxicating liquors: evidence. Evidence that a liquor shown to contain alcohol is not intoxicating, is inadmissible, however weak the intoxicating effect may be.</p>

<p>1 Intoxicating liquors: saloons: consent of property owner: fraud. The construction of a board partition in a room occupied for saloon purposes, leaving an unoccupied space, for the sole purpose of removing the place of business more than fifty feet distant from the property of another owner who refused to consent to the opening of a saloon at that place, was a fraudulent subterfuge to evade the law.</p> <p>3 View from street. The location of a saloon in the basement of a building with the bar so situated that the same is not in plain view of pedestrians using the street or sidewalk in the ordinary manner, is not in compliance with the statute.</p> <p>3 Entrance. A basement saloon so constructed that the only entrance is through a long hall after descending several steps from the street, does not have an opening “ on a public street ” as required by statute.</p>

Appeals from Marshall District Oourt.— Hon. Obed Cas-well, Judge. The plaintiff prosecuted two appeals to tbe district court from assessments for tbe cost of paving between and outside of its tracks on two different streets, and in each case tbe assessment of tbe city council was sustained.

— HoN. W. D. EvaNS, Judge. Suit to recover a penalty for tbe sale of liquor to a minor. Verdict and judgment for tbe plaintiff. Tbe defendants appeal.

<p>Appeal from Linn District Court.-— HoN. J. H. Preston, Judge.</p> <p>The will of John P. Glass was offered for probate and contested on the grounds of mental incapacity and undue influence. There was a trial to a jury, and a verdict and judgment for the contestants. The proponents appeal.</p>

<p>Appeal from Polk District Court.— HoN. Josias: Given, J udge.</p> <p>DeeendaNt was convicted of the offense of threatening to accuse another of a crime, and sentenced to pay a fine of $100 and costs, and from this sentence he appeals.</p>

— Hon. C. W. Vermillion, Judge. Action to recover damages for injuries alleged to bave been received by being thrown off from the platform of a passenger coacb by reason of the sudden starting of the train while plaintiff was attempting to alight therefrom. On the issue raised by a general denial of the allegation'of the plaintiff’s petition there was a verdict for plaintiff in the sum of $50, and from a judgment on the verdict the defendant appeals.

— Hon. J. R. Whitaker, Judge. Suit in equity to enjoin tbe defendant from removing a sidewalk constructed along tbe east line of plaintiff’s premises. The trial court found that tbe sidewalk was in one of tbe streets of tbe defendant town, and denied tbe relief asked by plaintiff. Plaintiff appeals.

- — Hon. James H. Appeegate, Judge. Actions to set aside a sheriff’s sale of real estate. The trial court denied the relief asked, o and plaintiff appeals.

— How. Josiah Given, Judge. B. F. Kimble was adjudged insane, and in 1892 J. I. Dailey became bis guardian. He continued sucb until tbe ward’s death, in February, 1902. William Kimble was then appointed administrator of the estate of the deceased. Dailey filed his final report as guardian April 24, 1902, to five paragraphs of which the administrator filed exceptions.

<p>Appeal from Scott District Court. — ■ HoN. J. W. BoliNger, Judge.</p> <p>Tbe opinion states the case.</p>

Appeals from Linn District Court.— Hon. J. H. PrestoN, Judge. The several cases above, entitled were tried together in the court below, and there was judgment in favor of the plaintiff, is each case. The defendant appeals in each of the cases, and the Chicago & Northwestern Railway Company filed an appeal in the case in which it is plaintiff. The cases have been submitted together in this court.

<p>Appeal from Winnebago District Court.— HoN. J. N. Clyde, Judge.</p> <p>The defendant was convicted of larceny, and appeals.</p>

<p>Appeal from Jones District Court.— HoN. B. H. Miller, Judge.</p> <p>The defendant was convicted of the crime of rape, and appeals.</p>

- — HoN. O. A. ByiNO toN, Judge. The defendant appeals from a judgment 'of conviction upon an indictment charging him with the crime of burglary.

— HoN. L. E. Eel-lows, Judge. The defendant was indicted for an assault with, intent to commit rape. Upon trial he was convicted, and he appeals.

— Hon. Ereb O’Donnell, Judge. ActioN to recover damages. Verdict'was directed for defendant, and judgment entered thereon. The plaintiff appeals.

Appeals from WinneshieTc District Coiurt.— HoN. 0. H. Kelly, Judge. These appeals axe submitted on the same abstracts and arguments, and will be disposed of in one opinion. They are each actions at law to recover damages for false representations, and breach of warranty in the sale of some cows, and for selling to plaintiffs animals which were diseased. Defendant Edwin Pinckney denied any connection with the alleged sale.

— IIoN. Olieeoed P. ' Smith, Judge. ActioN to recover damages for injuries sustained from a fall on a sloping approach from a street to a sidewalk, which was, as alleged, in a defective condition, due to the negligence of the defendant. On' trial to a jury there was a verdict for defendant, and from the judgment on this verdict plaintiff appeals.

<p>Appeal from Orawford District Court.— HoN. Z. A. Ohueci-i, Judge.</p> <p>The opinion states tbe case.</p>

— Hon. E. W. Eichel-BEK.GER, Judge. Action in replevin to recover possession of a casK register. Trial to the court on an agreed statement of facts. Judgment for the plaintiff. The defendants appeal.

— HoN'. Z. A. Chuech, Judge. ActioN of replevin. There was a trial to tbe court, and a judgment for tbe defendants. Tbe plaintiff appeals.

— HoN. A. E. ThokNell, Judge. A'otioN to recover possession of certain real estate. Defendants pleaded tbat they were in possession under a parol contract for the purchase thereof from plaintiff. Plaintiff denied the alleged contract. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendants appeal.

— ■ HoN. JohN T. Scott, Judge. AgtioN to recover the amount due on two judgments rendered by a justice of the peace in Illinois in actions brought by this plaintiff against this defendant. Defendant, in his answer, alleged that the judgments were void, and interposed a counterclaim for wrongful suing ‘out of an attachment under which the goods of defendant’s wife were levied upon, the cause of action to recover such damages having been assigned to this defendant.

- — ■ HoN. M. A. ROBERTS, Judge. ActioN at law to recover damages for a personal injury. Verdict and judgment for plaintiff, and defendant appeals.

—■ HoN. Z. A. Ohuech, Judge. Action to recover tbe possession of • two windmills, wbicb are claimed by plaintiff as pledgee of tbe property from one Somme. Defendant McLeod claims to bave levied upon and sold tbe property under an execution issued in an action brought by defendant Noble against Somme. The case was tried to a jury, and at the conclusion of the evidence •the trial court sustained defendants’ motion for a directed verdict. Plaintiff appeals.

— Hon F. C. Platt, Judge. Action in equitfy by plaintiff, as sole beir of Solomon Haney, deceased, against bis executor, to secure a construction of .the provisions of a will. Decree for plaintiff. Defendant appeals.

Emmet District Court. — HoN. A. D. Bailie, Judge. Suit to recover on a verbal contract for the boring of a well, and to recover for certain repairs thereto. There were a verdict and judgment for the plaintiff against the creamery company, from which it appeals.

<p>Appeal from, Page District Court. —HoN. W. R. Geeen, Judge.</p> <p>Suit in equity for an injunction. Relief denied, and the plaintiff appeals. The opinion states the case.</p>

<p>1 Fire insurance: increase of risk: submission of issue. In an action on a fire policy, the question of whether there has been a change in the contemplated use and occupancy of insured property rendering the risk more hazardous, and whether such change contributed to the loss, are ordinarily questions of fact for the jury. Evidence held to require a submission of the issue of increased hazard.</p> <p>2 Exclusion of evidence: harmless error. Where the real question upon which the insurance company was entitled to offer evidence, was whether the use of a feed cooker in the insured barn occasioned a greater hazard than the use therein of a tank heater, the exclusion of evidence that the use of the feed cooker when no fire had been used, increased the hazard, was not prejudicial.</p> <p>3 Cause of loss: burden of proof. Under Code, section 1743, a violation of the terms of a policy will not defeat recovery where it is shown “ that such violation did not contribute to the loss,” and the insured has the burden of proof on this question.</p> <p>4 Construction of doubtful terms., Uncertain and ambiguous terms in a contract of insurance will be construed most favorably to the assured.</p>