Volume 130 — Iowa Reports

— - Hon. Clifford P. Smith, Judge. Defendant was indicted for the crime of murder. Upon trial to a jury lie was convicted of manslaughter, and from 'the judgment imposed on the verdict he appeals. — ■

— Hon. A. H. MoVey, Judge. Action orginally instituted by plaintiff, as administrator of the estate of his deceased mother, for the discovery of assets of her estate, converted by defendants, who are his father and his father’s present wife, to their use, and to have set aside assignments and conveyances made by the mother prior to her death, and for the appointment of a receiver for such property.

<p>Appeal from, Van Burén District Court. — 'How. 3?. W. Eichelberger, Judge.</p> <p>The defendant, laving been convicted of tbe crime of larceny by embezzlement, appeals.—</p>

— Hon. J. F. Clyde, Judge. Defendant was charged on information before justice of the peace with the crime of acting as agent and dealer in school text-books and' school supplies during the time that he was one of the directors of the independent school district of the town of New Hartford, in Butler county, and on trial was convicted and sentenced to pay a fine of $10 and costs.

— Hon. Bobt. ■ Sloan, Judge. Action to recover for board, clothing, medical attendance, and nursing furnished to defendant’s wife, Mary Oughton, and infant child. Verdict and judgment for plaintiff. Defendant appeals.—

— TIon. J. H. Apple-gate, J udge. Action to recover for lumber sold by the plaintiff to Joseph O’Neal, and to establish a lien upon the land of the other defendants. The petition was dismissed as to Iolanda Beckleen, and decree entered establishing a mechanic’s lien against the house and the leasehold interest of O’Neal in the land, and also establishing the plaintiff’s claim as an equitable lien against G. W. Becldeon’s interest in the land. The latter appeals.—

<p>1 Indictment: evidence before grand jury: return of documents. An indictment will not be set aside because certain documents, used in connection with the examination of witnesses before' the grand jury, are not returned with the minutes of the testimony attached to the indictment.</p> <p>2 Intoxicating liquors: sale to minors: proof of minority. Proof that a purchaser of liquor was not twenty-one years of age made a prima facie case of minority, without the further showing that such person was unmarried.</p> <p>3' Same: idendification. It is incumbent upon the holder of a permit for the sale of liquor to require the written statement of a reliable person that an applicant to purchase, who is not known to him, is not a minor; and a sale in violation of the requirement is not. rendered legal by showing that on a former occasion the person was properly identified.</p>

<p>Appeal from Buchanan District Court.— Hon. A. S. Blair, Judge.</p> <p>Action in equity to set aside and declare void a certain conveyance of real estate executed by Rebecca Keenan to the defendants Mamie E. Archer and John Archer. From a decree in favor of defendants, the plaintiffs appeal.</p>

— How. Clifford P. Smith, Judge. Defendant was convicted under an indictment charging him with the crime of assault with intent to maim and disfigure, and, on conviction, was sentenced to imprisonment at hard labor in the penitentiary for a period of four years. Prom this conviction he appeals,—

— Hon. Hugh Brennan, Judge. Suit in equity to enjoin the collection of special assessments made for the cost of paving an alley in the city of Des Moines. Judgment for the plaintiffs, from which the defendants appeal.—

<p>1 Corporations: power to act as trustee. Where a corporation is organized according to law and authorized by its charter to act as a trustee, it may hold its own stocks in trust for the beneficiaries named by the donor in the trust, even though there is no express statute empowering a corporation to act in a fiduciary capacity.</p> <p>3 Quo warranto. Quo warranto is not the proper proceeding to prevent a corporation duly organized from acting as trustee of an express trust, as the matter is not one of public concern.</p>

<p>Appeal from, PolTe District Court.— Hon. W. H. McHenry, Judge.</p> <p>Indictment for the larceny of a watch. Verdict and judgment of guilty, and defendant appeals.—</p>

<p>Appeal from Polk District Court.— IIon. 'Edmund Nichols, Judge.</p> <p>The defendant was convicted of libel, and appeals.—</p>

— Hon. Franklin C. Platt, Judge. This action arises out of a transaction having relation to real estate, and the demand is for judgment in a sum alleged to be due as agent’s commissions. There was a directed verdict in favor of. defendant, followed by a judgment against plaintiff for costs. Plaintiff appeals.—

<p>1 Conveyances: reservation of easement: description. The reservation in a deed to certain lots of “ a driveway twelve feet along and across the southwesterly end of the same ” with the right in another to enclose and use the same, is held not subject to the objection that the description is indefinite.</p> <p>2 Conveyance of easement. An easement which is appurtenant to land conveyed passes with the conveyance without an express grant.</p> <p>3 Easements: present right. The reservation of an easement in a conveyance to a third person, “ except that the grantee may use the same on certain conditions,” constitutes the reservation of a present, existing easement and excludes the grantee from any enjoyment thereof except on the conditions imposed in the deed.</p> <p>4 Non-user of easements. Where there has been an actual reservation of an easement, affirmative proof of user is not essential to establish a right, which would pass by deed_ to the grantee of the dominant estate.</p> <p>5 Easement: adverse possession. On an issue as to the forfeiture of a right to an easement reserved by deed, the evidence is reviewed and held insufficient to show its loss by adverse possession.</p>

<p>Appeal from, Polk District Court.— Hon. Hugh Brennan, Judge.</p> <p>Suit to foreclose a contract for the sale of land. Decree was entered as prayed, from which, the defendants appeal. —</p>

— Hon. O. A. Byington, Judge. Action by plaintiff, as administratrix of the estate of Dennis Keefe, to enforce against the defendant the payment of a note for $6,000 and the foreclosure of a mortgage securing the same on a certain tract of land conveyed by the deceased to the defendant, and also to recover for the estate $2,000 as balance of the purchase price for said land.

— Hon. W. Gr. Clements, Judge. This is a certiorari proceeding to test the validity of the consolidation of certain school districts. The trial court sustained the writ, held the consolidation invalid, and taxed the costs to the Independent District of Prairie Township, in Keokuk county. Defendants, who are officers of the various districts, appeal.—

<p>Appeal from Story District Court.— ITon., J. H. Kichard-, Judge.</p> <p>Suit by a wife to recover damages for the sale of intoxicating liquor to her husband. Trial and verdict and judgment for the plaintiff. The defendant appeals.&emdash;</p>

— Hon. J. H. Richard, Judge., Suit by a wife to recover damages for the intoxication of her husband. Trial to a jury, and a verdict and judgment for the plaintiff. The defendants appeal.—

— 'Hon. Clifford P. Smith, Judge. Suit in equity for the correction and reformation of a deed upon the ground of mutual mistake. Defendant’s answer was practically a general denial. Decree dismissing plaintiff’s petition, and she appeals.—

— Hon. A. S. Blair, Judge. Action to recover the price of a traction engine alleged to have been sold by plaintiff to defendant. Defendant appeals from a judgment on a directed verdict in favor of the plaintiff.—

— How. J. H. Richard, Judge. Action to recover the value of two parcels of goods delivered by plaintiff to defendant at Ft. Dodge, Iowa, one parcel to go to Boonville, Mo., and the other to Chanute, Kan., one of which it is alleged was lost and the other damaged by defendant’s negligence. The case was tried on an agreed statement of facts and judgment was rendered for defendant. Plaintiff appeals.—

<p>Appeal from Polk District Court. — ’Hon. James A. Howe, Judge.</p> <p>The opinion states the case.—</p>

— Hon. Wm. Hutchinson, Judge. Action in equity to quiet title to real estate. There was a decree in favor of plaintiff, as against defendant G. II. Wiltse by default, and as against defendant E. F. Short after trial upon issues joined. The defendant Short appeals.—

<p>1 Seduction: evidence of other Acts. In a civil action for seduction, the cross examination of prosecutrix on the subject of "intercourse with other parties within sixty days of the date at which she testified her child was begotten by defendant, was not subject to the objection that the time inquired about was too remote from the date of the alleged crime.</p> <p>2 Evidence: conclusions. Where the actions and conduct of parties can be described a witness should not be permitted to give his conclusion as to how they acted toward each other.</p> <p>3 Expert testimony. Whether concejption would likely follow as the result of the first intercourse of parties under circumstances as detailed was not the subject of expert testimony; and further, the witness had not shown himself qualified to testify.</p> <p>4 Corroboration of witness: evidence: similar statements. Proof of statements made by one who had not then been examined were inadmissible for the purpose of corroborating his testimony subsequently taken, where there was no attempt to impeach the witness and no contradictory statements made by him were shown: and even if contradictory statements had been shown, the rule excluding consistent statements of the witness, subject to certain exceptions, still obtains.</p> <p>5 Seduction: evidence of other acts. Testimony of a witness tending to show that he, rather than defendant, may have been the father of prosecutrix’s child, is admissible in an action for seduction.</p> <p>6 Expert testimony: period of gestation. In an action for seduction, where there is an issue as to the paternity of the child, evidence of the period of gestation is admissible.</p> <p>.7 Expert evidence. Only such expert testimony as is based on proven facts should be considered by the jury.</p>

<p>1 Streets: disputed boundary: evidence. While mere lapse of time or failure to assert its right will not estop a city from claiming the existence of a street line as different from that claimed by the abutting owner, yet it will justify requiring the city to establish its right by clear and satisfactory evidence before dispossessing a citizen of property over which he has long ex-ercized ownership.</p> <p>Evidence held insufficient to support the city’s claim to a strip of land for street purposes as against the abutting owners long possession.</p> <p>2 Same: acquiescence. Acquiescence by a city and abutting-property owner for a long time in a certain line as the street line is evidence of more or less weight according to the circumstances that such line is the true boundary, where there is no showing of mistake or that there was no intention to claim the same as the true line. Evidence held not to be of that clear and satisfactory character required to establish a boundary different from the one acquiesced in.</p>

<p>Appeal from PoTk District Court. — IIon. W. H. McHenry, Judge.</p> <p>Suit in equity to enjoin the defendants from inserting iron beams in a party wall beyond tbe center line thereof. There was a judgment for the plaintiffs granting the relief prayed, and also enjoining the defendants from placing soil or other pipes in the wall. The defendants appeal.—</p>

— Hon. Gf. W. Burn-ham, Judge. Action at law to recovep damages for a personal injury. There was a verdict in favor of plaintiff, which, on motion of defendant, was set aside and a new trial awarded. Therefrom the plaintiff appeals. At the close of the evidence for plaintiff, and again at the close of all the evidence in the case, the defendant moved for an instructed verdict in his favor. Both motions were overruled, and therefrom the defendant appealed.

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

<p>1 Fraud: representation of agent: parol proof. The provision in a contract for the sale of goods that no agent, of the seller shall have the right to make any representation modifying the agreement, will not defeat the buyer’s right to show by parol that the instrument was signed by him as a result of the agents fraudulent representations.</p> <p>3 Contracts: modification: execution. An endorsement on the back of a contract made before signing and as a condition precedent to its execution, becomes a part of the 'instrument, and is a compliance with a provision of the main agreement that no modification thereof shall be binding unless in writing and signed by the parties.</p> <p>3 Sales: performance of contract: direction of verdict. A directed verdict for plaintiff, in an action for goods sold under a contract for delivery at a certain place on a day to be fixed by the seller, with notice to the buyer, was error, where there was a conflict of evidence as to whether notice of the time of delivery was given the buyer.</p>

— Hon. W. H. McHenry, Judge. Action to recover a feed bill for horse and cow furnished N. B. Vertres, husband of Mary E. Vertres, deceased. The trial court dismissed the petition, and .plaintiff appeals.—

— Hon. O. A. Byinqton, Judge. This is a contest over tbe will of Martba Jones, deceased. Contestant claims that testatrix was of unsound mind when the will was executed, and that it was obtained from her through the undue influence of Mary Jones and her husband, D'avid.

— Hon. W. D. Evans, Judge. Suit in equity to quiet plaintiff’s title to a strip of land between his and defendant’s premises. Defendant denied plaintiff’s title and pleaded acquiescence in a certain boundary line between the two properties. She also filed a cross-petition asking* that title to the strip in dispute be quieted in her. On these issues the case was tried to the court, resulting in a decree for plaintiff, and defendant appeals. — ■

— Hon. J. H. Richard, Judge. Action in equity to enjoin defendants from permitting the water discharged from tile drains on their lands to be emptied upon or caused to run over the land of plaintiff, and to recover damages. After hearing the evidence, the trial court rendered a decree dismissing plaintiff’s action, and plaintiff appeals.—

— Hon. P. E. G-aynor, Judge. Action to recover damages for a libel. At the time in question both parties to the action resided in Ponca, Dixon county, Neb. The defendant was the publisher of a newspaper of general circulation at said place, and in October, 1902, he published in such newspaper the following matter: Affidavit. Published by Request of A. C. Drager.

<p>1 Commission for Sale of Land: evidence. In an action by a broker for commission in procuring a purchaser for land it is held; first, that evidence of a letter written by the broker to the owner . informing him that he had interested a prospective purchaser, was admissible on the question of the purpose of the coming together of the parties; second, evidence of statements of the prospective purchaser respecting commission; third, where evidence of a collateral matter has been improperly received, the court may permit the whole matter to be gone into by the other party.</p> <p>2 Commissions: recovery of: evidence. Under a commission contract to procure a purchaser on stated terms, the agents right to commission upon a completed sale at the terms specified is not affected by the fact that other inducements to buy were offered the purchaser.</p> <p>3 Same. The fact that a broker stated to the purchaser that the land ought to be bought for less than the price asked, should be considered on the question of the agents instrumentality in procuring a purchaser, but was not conclusive that he was not honestly endeavoring to effect a sale.</p> <p>4 Same. Where a sale of land is consummated on the terms proposed, the agent is not required to prove that he produced a purchaser able, ready and willing to buy on such terms, to recover his commission.</p> <p>5 Commissions: when earned: instruction. Where a broker is employed to procure a purchaser for land and the agent informs the prospective purchaser that he can buy the land and presents him to the owner who understands that he is a prospective buyer, the fact that the purchaser understood he was to meet the owner for another purpose will not affect the agent’s right to commission, no bad faith on his part being shown.</p>

<p>1 Levy on mortgaged property: statement of mortgage debt. Where a levy under execution has been made upon mortgaged . property, a statement of the mortgage indebtedness which is furnished the execution creditor within a reasonable time after demand and before the execution sale is in time; though not furnished within ten days after the levy — the time prescribed by Code Section 3981 for payment of the mortgage lien oí discharge of the levy.</p> <p>2 Statement of mortgage indebtedness: sufficiency. Where mortgaged property was levied upon under execution a statement of the mortgage indebtedness required by Code Section 3987, which shows the original consideration to have' been the sale of goods, in settlement of which the note described in the mortgage’ was given and that no part of the same had been paid, is sufficient.</p>

— Hon. Hugh Brennan, Judge. Action in equity to quiet title to a certain lot in Des Moines.

— Hon. C. H. Kelly, Judge. Action at law on account for merchandise, sold and delivered. There was a directed verdict and judgment for plaintiff, and defendant appeals.—

<p>Appeal from Hamilton District Court.— Hon. W. D. •Evans, Judge.</p> <p>Action in equity to reform contract. Decree for plaintiff, and defendant appeals.—</p>

<p>Certiorari. The opinion states the case.</p>

— Hon. G. W. Wakep eield, Judge. The instant defendant was indicted jointly with Dora Rocker, for the crime of murder in the first degree. Upon his motion he was granted a separate trial. The trial resulted in his conviction, and from the judgment he appeals.

— Hons. Josiai-i Given and W. H. McHenry, Judges. Proceedings for the establishment of a claim against the estate of L. Bishop, deceased.’ The case was originally tried before Judge Given, resulting in a directed verdict for defendant. Judgment was rendered upon the verdict, and costs taxed to claimant.

— Hon. Eranklin C. Platt, Judge. Action to recover the value of certain goods delivered to the defendant at Manchester, Iowa, for shipment to Colesburg or Osterdock, in the same State. Trial to a jury, directed verdict for defendant, and plaintiff appeals.—

<p>Appeal from Webster District Court. — -Hon. J. R. Whitaker, Judge.</p> <p>Action for damages • resulted in a judgment for the plaintiff. The defendant appeals.—</p>

<p>Appeal from, Emmet District Court.— IIon. A. D. Bailie, . Judge.</p> <p>Action to recover amount paid defendant city as mulct tax. The petition was dismissed, and plaintiff appeals. —</p>

— Hon. O; D. Wheeler, Judge. Plaintiffs are the owners of lots 1,. 2, and 3 of fractional section 23, township 75, range 44, in Pottawattamie county.

<p>1 Sales: failure to deliver: recovery of price paid: demand. Where the vendor of personal property has put it out of his power to deliver the same, no demand by the vendee for a return of the purchase price before bringing suit therefor is necessary.</p> <p>2 Same. Where personal property is to be delivered upon payment of the price, service of notice of suit to recover the price paid, upon failure to deliver, is sufficient demand.</p> <p>3 Same. Where a sale of personal property was made by an agent, evidence that a demand for a return of the price paid, upon failure to deliver the property, was made on the agent was competent in an action to recover the price.</p>

<p>1 Fraudulent conveyances: intent of grantee. To cancel a deed on the ground that it was given to hinder and delay creditors, it must appear that the grantee participated with the grantor in the intent to perpetuate the fraud.</p> <p>2 Conveyance by insolvent: failure to record. An insolvent debtor may convey his property in good faith payment of an honest debt, to the exclusion of the other creditors, and a pre-existing creditor who has taken no steps to enforce his claim until after the conveyance is recorded cannot complain that the same was withheld from record, even though failure to record was pursuant to an agreement.</p> <p>3 Evidence of Fraud. In an action to set aside a conveyance, as fraudulent, the evidence is held sufficient to show fraud.</p>

<p>Appeal from Polk District Court.— Hon. W. H. McHenry, Judge.</p> <p>Action in equity to set aside a tax deed, and to redeem the property in controversy from tax sale. There was a decree in favor of the defendant, and the plaintiffs- and E. F. Grimes, intervener, appeal.—</p>

— IIon. Z. A. Church, Judge. Ti-ie defendant was indicted for the crime of rape. Upon his plea of guilty he was sentenced to the penitentiary for the period of 15 years, and he appeals.

<p>Appeal from Page District Court.— Hon. O. D. Wheeler, Judge.</p> <p>The opinion states the case.—</p>

<p>Appeal from Glay District Court.— Hon. A. D. Bailie, Judge.</p> <p>Action to recover the balance due on the purchase price of a car load of beer sold to defendant. Defendant pleaded the invalidity of the sale, and also a counterclaim for damages growing .out of certain false and fradulent representations made by plaintiff "through its agent in the sale of certain real estate. He also pleaded payment and settlement for the beer. -Plaintiff denied the allegations of the counterclaim, and on these issues the case went to a jury, resulting in a verdict and judgment for defendant. Plaintiff appeals.—</p>

<p>Estates of decedents: recovery for wrongful death : distribution. The sum recovered by the personal representatives of one who suffered a wrongful death, will be distributed according to the law of the state where the death was occasioned.</p>

— Hon. F. M. Powers, Judge. Action on an oral promise of defendant to pay to the firm of H. L. 'Craven & Co. the sum of $150, of which obligation plaintiff is the assignee. Defendant pleaded want of consideration. On a trial to the court, judgment was rendered for plaintiff, from which defendant appeals.—

<p>1 Instructions: failure to submit issue. Failure to submit an issue tendered by the answer, in an action for services, to the effect that plaintiff agreed to take his pay in shares of stock of defendant corporation when the company was established on a paying basis, which constituted in effect a plea in abatement, was error.</p> <p>2 Instruction: submission of account. In an action on account involving numerous issues, all of which were denied, and plaintiff claimed a balance after allowing conceded credits, the entire claim rather than the balance was in controversy, and the jury should have been so instructed.</p> <p>3 Action for services: fraud as a defense. Fraud and unfaithfulness of a servant in performance of his duty is available as a defense to an action on an express contract for the service, though not pleaded as .a counterclaim; and where there is evidence to support the allegations of fraud, pleaded as defensive matter, refusal to submit the issue is error.</p> <p>4 Pleading: withdrawal of issues: effect. Where the same matter is available both in defense of an action and as the basis of a counterclaim for damages, and is so pleaded, a withdrawal of the counterclaim is not a waiver of the right to insist on the same matter under the plea in bar.</p> <p>5 Appeal: taxation of costs. The, cost of printing that part of an argument whch is a repetition of the evidence contained in the abstract will be taxed to the party submitting the same.</p>

<p>1 Limitation of actions. Where the maturity of a contract for the payment of. money depends upon a future contingency, the statute does not commence to run against an action thereon, until the happening of the contingency which matures the obligation.</p> <p>3 Judgment: agreement as to entry. Under a stipulation that if defendant's demurrer is overruled plaintiffs recovery shall be a • certain sum, and defendant elected to stand upon his answer, on the overruling of the demurrer, it was proper to enter judgment for plaintiff for the sum stipulated.</p>

<p>1 Telegraphs:- wrong delivery: damages. The delivery of a message to one not the addressee, though having a similar name, will not render the company liable in damages to such person, where there was no assurance by the company that he was the person intended, except the information contained in the message and where the means of ascertaining the facts were open alike to both parties.</p> <p>3 Same. Where a message was delivered to one not the addressee, but having a similar name, the fact that the company attempted to identify the party for whom it was intended and to inform the plaintiff, but failed to do so before he had acted on the information contained in the message, did not render the company liable to him in damages.</p>

A ppeal from Polk District Court. — - Hon. James A. Howe, Judge. Suit to recover damages to a case of gloves shipped from Erlangen, Germany, to Des Moines, Iowa. Trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.—

— Hon. A. B. Ti-iornell, Judge. Action for malicious prosecution in two counts^ in tbe first of which, it was charged that defendant maliciously, and without probable cause, filed with the mayor of the tqwn of 'Oarson an information signed and sworn to by defendant charging plaintiff as a physician with the violation of an ordinance of the town in failing to notify the proper officers of the existence of scarlet fever, under which charge plaintiff was arrested, tried before…

<p>1 Corporations: denial of organization: estoppel. The defendant, in an action by a corporation for an injury to its property, cannot set up a want of plaintiff’s legal organization as a defense.</p> <p>2 Ultra vires acts: estoppel. Where a corporation acquired title to real property from a trustee; the cestui que trust is estopped from contending that the act of the corporation in acquiring the title was ultra vires.</p> <p>3 Banks and banking: right to hold real estate. A corporation, though not expressly authorized to deal in real estate, may lawfully acquire the same for the purpose of securing itself from loss growing out of an authorized transaction.</p> <p>4 Injunction: removal op fixtures. Injunction to restrain the removal of fixtures is a proper remedy.</p> <p>5 Fixtures: machinery. A gasoline engine placed on a solid stone foundation in a permanent building also on a stone foundation, intended for use and used in grinding feed for stock is a part of the realty and passes by deed covering “ all appurtenances ” as against a bill of sale describing certain personal property “ and all other machinery.”</p> <p>6 Parol evidence: variance of writing: reformation 'of instruments. Parol evidence is inadmissible to show that fixtures were not intended to be included within the general terms of the description in a deed, and that the same was intended to be included in a bill of sale to which no specific reference was made therein. Evidence held insufficient to authorize a reformation of the bill of sale.</p>

— Hon. O. D. Wheeler, Judge. A verdict for the plaintiffs was set aside and a new trial granted. The plaintiffs appeal.—

— Hon. O. A. Byington, Judge. Special proceedings under the statute (chapter 5, title 21, of the Code) to establish lost corners and the boundary line between certain tracts of real estate described. From a decree entered in favor of plaintiffs, the defendant appeals.

<p>Divorce: cruel and inhuman treatment: evidence. A petition for divorce on the ground of cruel and inhuman treatment is not supported by proof of acts which in no manner endanger the health or life of the plaintiff, but show simply incompatability of temper. Evidence held insufficient to establish cruel an inhuman treatment.</p>

<p>Appeal from, Palo Alto District Court.— Hon. A. D'. Bailie, Judge.</p> <p>The opinion states the case.—</p>

— Hon. L. E. Fellows, Judge. Action at law upon contract to recover the purchase price in part of a horse. At the close of the evidence for plaintiff there was a directed verdict in favor of defendant, and plaintiffs appeal.—

— Hon. W. R. Green, Judge. Action by plaintiff, &s owner of a certain lot in the town of Missouri Valley, to restrain the defendant, as sheriff, from executing a deed thereof, pursuant to a sale by him upon an execution against one Mrs. G. B. Smith.

<p>1 Embezzlement by public officer: failure to account : indictment. The amendment of Code Section 4840, by chapter 67 acts 26th. General Assembly, relating to embezzlement by a public officer in failing to account, provides a ground additional to those enumerated in the original statute, on which the charge may be based without alleging any of the specific acts formerly prohibited by the statute.</p> <p>2. Same: demand. An indictment charging a public officer with embezzlement by failing to account for money received by him as such officer must allege that demand was made on him for an accounting by the person (naming him) entitled to receive the same.</p>

— Hon. O. D'. Wheeler,. Judge. Action in equity* to recover judgment on a note and for foreclosure of a mortgage securing the same. The case was tried on an agreed statement of facts and a decree rendered for plaintiff from which defendants appeal. —

— Hon. L. E. Eel-lows, J udge. Action at law to recover the price paid for a railway ticket, and for a statutory penalty. The facts will be found stated in the opinion. There was a trial to' the court resulting in judgment for plaintiff. Defendant appeals.—

— Hon. F. M. Powers, Judge. Action upon defendants’ joint and several promissory note for tbe sum of $1,000. Verdict for plaintiff in tbe sum of $730.30, interest, and costs. From a judgment on tbe verdict, plaintiff appeals.—

— ’Hon. John T. Scott, Judge. Action to recover damages for fraudulent representations in exchange of real property. At the close of plaintiff’s evidence the court, on motion, directed a verdict for defendant, and from judgment thereon plaintiff appeals.- —

<p>Appeal from, Carroll District Court. — How. F. M. Powers, Judge.</p> <p>‘The defendants were convicted on a- charge of arson, and appeal.—</p>

— Hon. Z. . A. Church, Judge. Action in equity for an injunction to restrain the construction and maintenance of a surface water drain. On hearing, the court dismissed the petition and rendered judgment in favor of defendant for costs. Plaintiff appeals.- — •

<p>1 Appeal: notice: jurisdiction. Failure to serve notice of appeal on a party whose rights would be affected by a reversal of the judgment below will deprive the appellate court of jurisdiction.</p> <p>2 Action to construe a will: service by publication. Code, section 3534, authorizes service by publication on a nonresident defendant in an action to construe a will.</p>

<p>1 Agency: contracts by agents: personal liability. An agent may become personally liable for the payment of service rendered solely concerning his principal’s business.</p> <p>2 Brokers: commissions. Where a broker, for an agreed commission, performed his contract to find a purchaser for certain lots, but the owner then refused to convey anything less than the entire tract, and he subsequently induced the same purchaser to buy the whole tract without any new agreement as to commission but the owner again refused to convey, he was not entitled to double commission but to the - original commission agreed upon and additional compensation at the same rate for producing a purchaser for the balance of the tract.</p>

<p>Appeals from Woodbury District Court.— Hon. J. L. Kennedy, Judge.</p> <p>These are attempted appeals from the action of the trial court in sustaining objections to assessments made by the board of supervisors of Woodbury county for a portion of the costs and expenses of constructing a county ditch. — 1</p>

<p>Appeal from Bicena Vista District Court.— Hon. A. L>. Bailie, Judge.</p> <p>The opinon states tbe case.-—</p>

— 'Hon. J. TL Preston, Judge. Dependant was indicted and convicted for an assault with intent to commit murder, and sentenced to imprisonment in the penitentiary for eight years at hard labor, and from this sentence he appeals.—

<p>Municipal corporations? streets: change of grade: damages. A property owner who has once improved his property with respect to an established grade does not waive his right to damages, on account of a subsequent change in grade, by voluntarily conforming his property thereto prior to the time the street is so improved, but after the street has been made to conform to the new grade he may sue to recover his damage.</p>

<p>1 Wills,: life estate : power of sale : remainCer. A’ will bequeathing to the widow all personal property, “ to have and to hold during her life and at her death whatever remains to be 'divided equally between ” testator’s children, creates a life estate with a limited power of disposal added as a separate gift, but upon failure to exercise the power the remainder will pass to the children upon her death.</p> <p>3 Trusts: burden of proof: evidence. On an issue as to whether certain real estate was purchased, in whole or in part, by the widow with the proceeds of personalty bequeathed to her for life by her husband with the remainder to testator’s children, the burden is upon those seeking to establish the trust. Evidence held insufficient to impress the real estate with a trust.</p> <p>3 Deeds: presumption as to delivery: evidence. A deed duly signed, acknowledged and recorded is presumed to have been properly delivered. Evidence reviewed and held insufficient to overcome this presumption.</p>

<p>Appeal from Linn District Court.— Hon. Wm. G. Thompson, Judge.</p> <p>The opinion states the case.—</p>

— 'Hon. F. R Gaynoe, Judge. Action in equity to have certain conveyances of real estate declared to be simply securities, for an accounting, and to permit plaintiff to redeem. There was a decree in favor of defendants, and plaintiff appeals.—

<p>1 Conversion of mortgaged property: unrecorded assignment: rights of assignee: 'evidence. The assignee in an undisclosed assignment of a chattel mortgage takes the risk of parties dealing with the original mortgagee the same as in cases of real estafe, so that an action for conversion against the mortgagor, or those claiming through him, cannot be predicated on a good faith sale made with consent of the mortgagee and without notice, either actual or constructive, of the assignment: and the exclusion of evidence of the original mortgagee’s consent to a sale, under such circumstances is error.</p> <p>2 Same: notice of sale: consent: evidence. One who participates in a wrongful sale of mortgaged property, receiving the proceeds of a portion thereof, is guilty of conversion, and he is not relieved by the good faith of his acts. Evidence reviewed and held insufficient to charge the assignee of a chattel mortgage with notice of an intended sale of the mortgaged property, or to show consent to the sale by such assignee, so as to relieve a third party, who received the proceeds, from liability in an action for conversion.</p> <p>3 Same: acceptance and retention of part of proceeds. The receipt by a mortgagee, or his assignee, of a portion of the proceeds arising from a wrongful sale of the mortgaged properly, prior to a knowledge of the wrongful sale, and its retention thereafter, will not defeat an action in conversion for the balance due.</p> <p>4 Bills and Notes: negotiability. The provision in a note that sureties consent to an extension of time of payment without notice does not effect its negotiability.</p>

<p>1 Rape: indictment: duplicity. An indictment charging an assault with intent to carnally know and with actual carnal knowledge of a female of such imbecility of mind as to prevent effectual resistance is not uncertain as to whether it charges an offense under Code, section 4756, relating to the age of consent, or under section 4758, relating to intercourse with an imbecile, so as to render it void for duplicity.</p> <p>3 Change of venue: discretion of court. The granting of a change of venue is largely discretionary with the trial judge and unless an abuse of that discretion is shown the ruling will not be disturbed on appeal.</p> <p>3 Qualification of jurors: discretion of court. The qualification of a juror is primarily a question for the trial court, and its ruling will not be disturbed except upon a clear showing of abuse of discretion.</p> <p>4 Indictment: surplusage. In a prosecution for rape on a female of imbecile mind, it is proper to allege an assault and an implied allegation’of force will be treated as surplusage.</p> <p>5 Witnesses: competency: right to examine. The .question of whether the state or defendant shall first examine a witness of imbecile mind with respect to competency is discretionary with the court, and its ruling will not be interferred with unless the record discloses absolute incompetency.</p> <p>6 Same. An imbecile is not necessarily an incompetent witness, but the question of competency is for the court to determine from the power of memory and knowledge of right and wrong.</p> <p>7 Evidence: motion to strike. A motion to strike the answer of a witness in its entirety, where a portion of it is admissible, should be overruled.</p> <p>8 Evidence: 'previous conduct. The previous lascivious conduct of defendant toward prosecutrix, in a prosecution for rape, if not too remote and disconnected is admissible.</p> <p>Instructions: reasonable doubt. One general charge as to reasonadoubt which is applicable to each element of the offense is sufficient, without restating the rule in connection with each instruction.</p> <p>10 Misconduct of jurors. The fact that two of the jurors, during the trial, visited the scene of an alleged rape and there talked the matter over among themselves, is held not to have amounted to misconduct, where it was shown that they said nothing about their observations to their fellow jurors and both testified that the visit had nothing to do with their verdict.</p> <p>11 Corroborating evidence. On a prosecution for rape the question of whether there is corroborating testimony is for the court, but its sufficiency is ordinarily for the jury. The corroborating evidence is reviewed and held sufficient to warrant conviction.</p> <p>12 Same. Mere opportunity to commit a rape is not of itself corroboration but if the opportunity was of defendant’s deliberate creation it becomes a circumstance to be considered in determining his guilt.</p>

On the 13th day of February, 1905, the plaintiff was permanently enjoined from illegal selling or keeping for sale intoxicating liquors within the Thirteenth judicial district of Iowa. Information charging him with the violation of this injunction was filed November 3d of the same year, and upon hearing he was adjudged guilty of contempt of court and fined. To test the legality of these proceedings he has sued out a writ of certiorari in this court.

<p>1 Taxation; action to restrain collection. The listing of money for. taxation by an insolvent, for the purpose of misleading the public and shielding'his credit, cannot be made the basis of an action of fraud by his assignee for the benefit of creditors to restrain the collection of the tax.</p> <p>2 Same. An assignee for the benefit of creditors will not be relieved from the payment of taxes on the property coming into his hands, where there is no showing that the same was different from thát owned by the assignor at the time of the assessment, ■ or that the value was materially less.</p>

<p>Appeal from, Linn District Court.— TIon. J. H. Preston, Judge.</p> <p>Action for specific performance of a contract to convey land. There was a decree for the plaintiff, and defendants appeal.—</p>

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>From a judgment for defendants on demurrer to plaintiff’s petition, the plaintiffs appeal. — -</p>

<p>1 Practice: amendment after reversal. On the filing of a procedendo and redocketing of a case in the district court after reversal on appeal, it is too late to amend alleging matter which was raised by motion on the former trial and constituting the ground upon which the reversal was based.</p> <p>2 Taxation: payment in part: estoppel. Payment and acceptance of that portion of a tax over which there was no dispute, during the pendency of litigation over an increased assessment made by the board of review, will not estop the collection of the additional tax.</p>

— Hon. J. H. Preston, Judge. Action in equity to set aside tax deed. Decree for tbe interveners, and the plaintiff, First Congregational Church of Cedar Rapids, appeals. Other material facts are stated in the opinion.—

<p>Appeal from Benton District Court.— Hon. Obed 'Caswell, Judge.</p> <p>James Rice died testate in December, 1904, seised of forty acres of land which he had occupied as a homesteád. With him, had resided his son, William O. Rice, and family for many years and they continued to occupy the premises after his death. His last will and testament, which was admitted to probate, devised the homestead to this son alone though he left four other sons surviving him. The defendant Burkhart had obtained judgment against William for forty-three dollars and two cents, and, upon the proof of the will, caused execution to be issued and levied on the land and the sheriff was about to advertise and sell the same. .To the petition stating these facts and praying that the sale be enjoined, the defendants interposed a general demurrer, which was sustained. As plaintiff declined to plead over, the petition was. dismissed. Plaintiff appeals.—</p>

<p>Appeal from Johnson District Court. — - Hon. O. A. 13 yin g-ton, Judge.</p> <p>Action in equity to enjoin a sale of real estate under execution. To the answer of defendants the plaintiff filed a demurrer, which being overruled she elected to stand upon the ruling, and from a judgment dismissing her petition and for costs she appeals. —</p>

— Hon. Ered O’Donnell, Judge. Action for goods sold and delivered to defendant under a written order. Defendant pleaded that it had been induced to sign the order by fraud, that the goods furnished did not correspond to warranty, and that the order had been rescinded by defendant and the goods returned to plaintiff. Verdict for defendant. Plaintiff appeals.—

— Hon. G. W. Burn-ham, Judge. In these three cases the appellees are labor and materialmen seeking to enforce mechanics’ liens against the property of the appellant, Mary J. Stotts. They recovered judgments, from which appeals are taken.—

<p>1 Brokers: commissions: election of remedies. A broker suing for commission may ask in separate counts, a reasonable compensation for producing a purchaser at defendant’s request; for an agreed compensation — defendant having refused to complete the sale; and he may ask reasonable compensation for finding a purchaser who was able, ready and willing to buy on the terms and price stated, and he can not be required to elect on which ground of the petition he will rely.</p> <p>2 Evidence. Evidence of a sale of a part of the commission property, as tending to show the conduct of the parties, also state-' ments by defendant as to when he thought the sale complete, as showing his conduct with reference to his different contract obligations, was admissible.'</p> <p>3 Commission contract: prior sale : instruction : evidence. Where an agency contract for the sale of land as determined by the jury, was, that if defendant himself or through another agent sold the land he was to give plaintiff immediate notice, the sale contemplated is held, in the light of admitted facts, to have been either an actual sale, a binding agreement to sell, or the finding of a purchaser by another agent ready, able, and willing to buy, of which fact defendant had notice. Evidence held to justify an instruction that a sale by another agent was made and accepted prior to that made by plaintiff.</p> <p>4 Notice to agent of prior sale. Immediate notice required by a commission contract to be given an agent if the property was sold by another, is held to be a notice within a reasonable time under all the circumstances and situation of the parties.</p> <p>5 Measure of damages: breach of commission contract. The meas-tire of damages for the breach of a contract to pay a real estate agent a stated'commission for producing a purchaser, is the sum agreed upon at the making of the contract.</p>

<p>1 Master and servant: negligence of master: duty to warn. It is the duty of the master to warn and instruct an inexperienced workman whose employment exposes him to peculiar or obscure danger which ordinary intelligence and prudence would not discover, and he cannot escape the obligation upon a plea that he was himself ignorant of the danger.</p> <p>2 Expert evidence. In an action for personal injury, a physician who attended and treated plaintiff and knew his condition was competent to express an expert opinion as to the probable'future consequences reasonably expected to follow the injury, without propounding hypothetical questions or stating any facts or series of facts as a foundation for the inquiry.</p> <p>3 Same: cross-examination. In the cross-examination of a medical witness a broader range of inquiry is permissible than in the examination of a friendly witness in chief. In the instant case the liberty extended is upheld.</p> <p>4 Assumption of risk: pleading: submission of issue. The assumption of a risk arising from the negligence of a master, the peril of which the servant assumes by remaining in the employment after he knows or as a reasonably prudent person should have known the danger, is an affirmative defense which must be pleaded, and a failure to plead the same will relieve he court of the necessity of submitting that question to the jury.</p> <p>5 Negligence. The negligence of servant to whom the master has intrusted a duty, is negligence of the master.</p> <p>6 Verdict: not excessive. A verdict of $2000 for the loss of an eye is held not so excessive as to warrant the interference of the appellate court.</p>

— Hon. Clifford P. Smith, Judge. The action is in equity, and the opinion states the case. From a decree in favor of plaintiff, defendant appeals.—

<p>Appeal from Marshall District Court.— Hon. G. W. Burn-ham, Judge.</p> <p>Action for damages resulted in judgment against defendant, from which it appeals.—</p>

<p>X Estates of decedents: domestic and foreign administration: adjudication. Where the administration on the estate of a resident of Iowa was granted here and later another administrator was appointed in a foreign jurisdiction, the handing of objections to the later appointment to the judge of that court, based on the fact of prior administration, but in support of whifch no appearance was entered or any reference to the objections in the order of appointment was made, did not amount to an adjudication binding upon the local administrator and preventing the Iowa court from retaining and exercising jurisdiction.</p> <p>2 Same. Had the local administrator appeared to the proceeding in the foreign court, the granting of letters there would not have affected the jurisdiction of the court of this state, as letters of administration have no extraterritorial effect.</p> <p>3 Injunction: interference with administration. Where a duly appointed administrator has collected the assets of the estate of a decedent who was a resident of this state, and whose creditors are residents of the state, a court of equity will enjoin one of the creditors from interfering with the estate, through the medium of another administrator appointed in a foreign jurisdiction.</p> <p>4 Administration: principal and ancillary. Where administration has been granted in different states, that of the domicile of decedent is ihe principal administration and the other is ancillary.</p> <p>5' Collection of assets. Although an administrator appointed in this state has no authority to proceed by suit for the collection of assets in another state, still if voluntarily paid to him, his acknowledgment thereof is valid as against the claim of another administrator subsequently appointed in that state.</p> <p>6 Decree: modification on appeal. Even though the court’s decree is broader -than the relief demanded, still if no prejudice results the error will not be corrected on appeal.</p> <p>7 Wrongful death: distribution of amount recovered: exemption: statutes. Under the law of this state the fund coming into the hands of an administrator,’ as the result of a wrongful death, passes to the heirs and next of kin exempt from the debts of deceased, even though it was recovered under the law of another state.</p>

<p>1 Dower: admeasurement. A widow may have her dower ad-measured from any land owned by the husband during coverture of which she has not joined in a conveyance; and where there is nothing to indicate her connivance or fraud in inducing a purchaser to buy without her signature, she may have it set apart in lands conveyed by the husband alone.</p> <p>2 Same: estoppel. The fact that funds derived from the sale and conveyance of land by the husband alone, was used in support of the wife as a member of the family, will not estop her from claiming a dower interest therein.</p> <p>3 Recovery of rent. A widow cannot recover rent of land, conveyed by the husband alone, prior to a demand for the assignment of her dower.</p>

— Hon. Frank W. Eichelberger, Judge. Action for double tbe damages occasioned by tbe removal óf coal from beneath plaintiff’s land. Trial to jury resulted in verdict and judgment for the plaintiff. The defendant appeals.—

— Hon. A. B: Thoknell, Judge: Suit at law to recover for tbe death of tbe plaintiff’s intestate. Directed' verdict for tbe defendant. Tbe plaintiff appeals.- — ■

<p>Appeal from Polk District Court.— Hon. W. H. McHenry, Judge.</p> <p>This is an action in equity to enjoin tbe defendants, who are officials of the county of Polk, from collecting a mulct tax assessed against plaintiff’s property by reason of the sale of intoxicating liquors thereon. The trial court granted the relief prayed, and defendants appeal. —</p>

— ■ IIon. W. Gr. Clements, Judge. Action to restrain defendants from opening and improving a platted street. The petition was dismissed, and plaintiff appeals. —

— Hon. A. H. MoVey, Judge. Suit in equity to restrain tbe defendants from cut- . ting and removing ice from tbe Des Moines river, and from placing obstruction on the ice within certain limits specified in the petition.

— Hon. W. H. McHenry, Judge. Deeendant was indicted, tried, and convicted of the crime of rape upon a female child eight years of age, and appeals to this court.—

<p>1 Wills: life estate. A will devising property to a wife “for her exclusive use and benefit during her life and after her death and funeral expenses are paid what remains to be equally divided ” between testator’s children, creates only a life estate, and even if there was an implied power of sále it was for the support of the widow and did not change the character of the estate.</p> <p>2 Same: vested remainders. Where a will creates only a life estate in the widow with remainder’over to testator’s children, the remainder vests in the children upon the death of the testator, and the heirs of a deceased child dying prior to the death of the widow will take their parent’s interest.</p> <p>3 Deeds: conditional execution. A deed executed by one of several remaindermen on condition that it should not become operative until executed by all, conveys no interest in the estate .prior to performance of the condition, even though delivered.</p>

<p>1 Railroads: injury to stock in transit: evidence. In an action for injury to stock while in transit, the evidence is held sufficient to support a finding that the same was .in good condition when delivered fo defendant by a prior carrier.</p> <p>2 Stock in transit: presumption as to condition : burden of proof. Where stock is shown to have been in good condition at a certain point in transit, it will be presumed that they were in the same condition when delivered to a connecting carrier, and the burden is on the connecting carrier to rebut such presumption.</p> <p>3 Shipping contracts.: limitation of carrier’s liability. A shipping contract which attempts to limit a carrier’s common law liability for the care of stock while in transit and shift the duty to the owner, is in violation of Code, section 2074, and void.</p>

— Hon.. J. R. Whitaker, Judge. This is a controversy over the boundary line between plaintiff’s and defendant’s lots. The trial court dismissed plaintiff’s petition, and she appeals.—

— ‘IIon. A. II. McVey, Judge. This is a proceeding to establish a preferred claim in a receivership proceeding upon the proceeds of certain goods which it is claimed were obtained from the intervener, Sweetser, Pembrook & Co., by the Seeley-Howe-Le Van Company through false and fraudulent representations, and with intent not to pay for the same.

— IIon. James A. Howe, Judge. Suit to recover damages for personal injuries. There was-a judgment for the defendants from which the plaintiff appeals.—

— 'Hon. Edmund Nichols, Judge. Actions in equity to enjoin the obstruction of a highway. Plaintiff is the owner of a farm in Guthrie county. The alleged highway extends from the northeast corner of such farm north about forty rods, connecting with a main east and west highway. The farm of plaintiff is not otherwise touched by any highway, and hence the way in question affords the only means of egress and ingress open to her.

— IIon. Franklin 0. Platt, Judge. Action to recover on a benefit certificate issued to Mrs. Geo. Emma Wandell, now deceased; benefit payable to plaintiff, her husband. The association made ho defense, but intervener, the father of Mrs. Wandell, asserted the right to the benefit by reason of an attempted change of beneficiary in his favor. Trial in equity. Judgment for intervener. Plaintiff appeals. —

— Hon. Franklin C. Platt, Judge. Suit in equity to subject certain property to the payment of a judgment held by plaintiff against one Jane War-dell, now deceased. The defendants are her administrator and heirs at law, and as such they pleaded that the property was the homestead of the said Jane Wardell. at the time of her death, having been purchased with pension money received by her from the United States government.

<p>Appeal from Webster District Court.— Hon. W. D. Evans, Judge.</p> <p>The council of the city of Et. Dodge by resolution adopted January 28, 1901, appointed a committee of its citizens, consisting of the mayor, S. J. Bennett, and his successors in office, George S. Ringland, O. M. Oleson, Wehb Vincent, and Leon Vincent, for and in behalf of the city, “ to take charge of the construction of the Public Library in the said city, for which a site has been conveyed to the said city, and the said committee is empowered and directed to do all things necessary and proper in the selection of plans for the said building, and shall have exclusive charge and control of the selection of said plans and the construction of said building; and shall expend all moneys contributed for the construction of said building, and are empowered and directed to receipt to all parties who, may contribute moneys for the construction of the said library building, for and in the name of the said city. The said committee, as named, is given full and ample authority to represent the said city in the construction of the said building, and in receipting for any moneys contributed therefor, and this resolution shall be ample authority for the acts of the said committee done thereunder.” This committee entered into a contract with the Northern Building Company of Davenport, Iowa, June 17, 1901, by the terms of which that company undertook “ to furnish all the labor and materials and do and' perform all the work required for the erection and inclosing of the Library Building at Ft. Dodge, Iowa, according to the specifications and plans,” the same to be completed before January 1, 1902. The contract price was $34,500, but there were additions aggregating to $215,94 and deductions amounting to $1,271. The company was paid $26,584.20 before it abandoned the work and the committee expended $4,046.28 in completing the building, which was not accomplished until August 15, 1903. From the money on hand the court ordered that five claimants who had complied with section 3102 of the Code be paid in full sums amounting to $1,214.27, and the remainder, $1,600.27, to the Commercial National Bank of Ft. Dodge on an order of the building company. Three other claims amounting -to $835.47 were established against the building company, and judgments entered against it and the surety company. Judgment was also entered against the contractor and the surety company for $2,417.26, in favor of C. G-. Ilipwell for labor and materials. The claims of E. C. Wakefield and of the city of Ft. Dodge were rejected. Affirmative relief demanded by the surety company was denied. The city of Ft. Dodge, the Commercial National Bank, and the National Surety Company appeal.—</p>

— How. C. W. Vermillion, Judge. Suit in equity to recover ou a bond.' A demurrer to tbe petition was sustained .and tbe plaintiff appeals. — i

<p>Fraudulent banking: insolvency: knowledge of defendant: instruction. On a charge of fraudulent banking by receiving a deposit knowing the insolvency of the bank, the state must prove insolvency and the defendant’s knowledge thereof; and an instruction which would permit conviction if the defendant as a reasonable and prudent man should have known of the bank’s insolvency, is erroneous.</p>

— Hon. Edmund. Nichols,- Judge. In a proceeding for divorce on the ground of cruel and inhuman treatment and for alimony, the court entered in favor of plaintiff a decree for divorce, gave her the custody of minor children, and awarded her alimony. She appeals from the provisions awarding alimony, claiming that the allowance is insufficient in amount. — -

— Hon. A. N. Hob-son, Judge. Action ou certain promissory notes. By agreement judgment for the sum of $5,500 was entered thereon, and all the property attached, save that which defendant claimed as a homestead, conveyed to plaintiff at a valuation of $1,800, and the cause transferred to the equity side of the docket. Issue was then joined as to whether the premises occupied by defendant were exempt as a homestead.

<p>Appeal from Madison District Court.— Hon. Jas. D. Gamble, Judge.</p> <p>Defendant was convicted of keeping a house of ill fame and appeals to this court. —</p>

— Hon. J. H. Hi chard, Judge. On May 8, 1900, Eliza A. Dunahugh and her husband, Alexander Dunahugh, jointly executed a will' in which George W. Atkinson was named as sole devisee. Mrs. Dunahugh died in May, 1904, and the will so,executed was offered for probate. John '0.

District Gowrt.— Hon. W. G. Clements, Judge. The defendant was tried on an indictment charging him with the murder of John Parker, and was convicted of manslaughter. He appeals.—

<p>Appeal from Monroe District Court.— Hon. Robert Sloan, Judge.</p> <p>The opinion states the case.—</p>

— How. John F. Oliver, Judge. Action iu equity to have defendant Beardsley declared a trustee for plaintiff of twenty-five shares of capital stock, of the par value of $100 each, in the Northwestern National Bank of Sioux City.

- — ■ IIon. John E. Oliver, Judge. Suit in equity to recover of defendant Gotzian & Co. the amount due defendant for goods sold and delivered de fendant Mayhew, and for an accounting of the proceeds of certain goods received from Mayhew by Gotzian & Co. Defendant Gotzian & Co. alone answered, and filed what was to all intents and purposes a general denial. The case was tried to the court, resulting in a judgment for part of plaintiff’s claim.

— 'How. W. L. McNamara, Judge. Action at law to recover damages for personal injuries received by plaintiff upon one of defendant’s streets. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.—

<p>Appeal from Buchanan District Court.— IIon. A. S. Blair, Judge.</p> <p>Action to recover damages for personal injuries due to failure to barricade a dangerous place in or near tbe sidewalk in tbe defendant town in front of tbe premises owned by tbe other defendants. Verdict and judgment for plaintiff. Tbe defendants appeal. —</p>

<p>Appeal from Plymouth District Court.— Hon. Wm. Hutchinson, Judge.</p> <p>The opinion states the case.—</p>

— Hon. William Hutchinson, Judge. The plaintiff alleged that the defendant George Brewster was clerk of the district court of Sioux county during the period mentioned, and that Lewis Brewster and John Morris were the sureties on his official bond; that on March 26, 1902, Henry Meylink instituted an action against the plaintiff, David A. Rhea, and wife, praying for the specific performance of an oral contract to convey a quarter section of land, and paid into the office of…

— Hon. J. H. Preston, Judge. Action at law upon an account for cutlery materials sold, and delivered tbe defendant Cutlery Works. Tbe defendants, Z. L. Brewer, C. M. Brown, and W. A. Hubbard, are charged as guarantors of the payment of such account. Trial was had to the court without a jury, and from the judgment entered plaintiff appeals.—

<p>1 Wills: legacy: payment by device: enforcement. The pleadings and evidence in this action brought to cancel a land contract on the ground of fraud, to construe a will and establish the lien of a legacy, are reviewed and it is held that the contract should be set aside and that the land devised should be charged with the lien of a judgment in favor of the legatee, though in a sum less than that provided in the will owing to an agreement of the parties.</p> <p>Appeal: denial of abstract. A simple denial that an abstract con-2 tains the entire record will be disregarded.</p>

<p>1 Railroads; private crossings. The owner of land adjoining both sides of a right of way may compel the construction of a convenient crossing, when he is required to travel an unnecessary distance of one hundred and sixty rods in a public highway to reach his land on the opposite side of the track.</p> <p>2 Same. If otherwise entitled to it, a land owner may compel 'a crossing over a right of way at a point where the company had acquired by deed and owned, in addition to the right of way, a strip of ground which it used to protect the road from snow.</p>