Volume 138 — Iowa Reports

— Hon. W. Hr McHenry, J udge. Action in equity to recover upon a promissory note and to foreclose a chattel mortgage. The defendants admitted the note, alleged usury in the consideration therefor, and pleaded partial payment. The trial court sustained the plea of usury, and after applying payments made found plaintiff entitled to recover the remainder of $50.50, and to a foreclosure of the mortgage to that extent. The plaintiff appeals.—

— Hon. B. H. Miller, Judge. Proceedings in equity to set aside a mulct tax assessment The relief demanded by plaintiffs was denied, and they appeal.

Original proceeding in this court by certiorari. The return makes it appear that in May, 1907, this plaintiff filed in the office of the clerk of the district court of Plymouth county a petition setting forth that theretofore he had been married to Etta Bisby, and that at the time of such marriage she, the said Etta, was insane,. which fact was unknown to plaintiff. The prayer was that the said marriage be annulled.

<p>1 Divorce: alimony: appeal: presumptions. Where the defendant in a suit for divorce filed a cross-petition and obtained a decree from which no appeal was taken, it will be assumed, on appeal from the allowance of alimony, that plaintiff was guilty of conduct justifying the decree of divorce.</p> <p>2 Same: fraud : alimony. Where the husband in a divorce action against whom alimony was adjudged, by fraud and deception if not by perjury avoided the payment of the alimony, although at the time of the trial he was worth from $900 to $1,500, which he concealed so that the wife who was awarded the custody of the minor child was compelled to employ counsel and reopen the case, taking it twice to the Supreme Court, an allowance of $700 as alimony was not excessive.</p>

<p>Appeal from Winneshiek District Court.— Hon. L. E. Eel-lows, Judge.</p> <p>The opinion states the case.—</p>

<p>Appeal from Polk District Court.— Hon. W. H. McHenry, , Judge.</p> <p>Action to recover the purchase price of an automobile alleged to have been purchased by plaintiff from the defendant under warranty for breach of which plaintiff had elected to rescind the sale. There was a directed verdict for the defendant, and from judgment thereon plaintiff appeals.—</p>

— Hon. A. N. Hob-son, Judge. Suit to recover damages occasioned by a defective sidewalk. There was a directed verdict for the defendant, and from a judgment thereon the plaintiff appeals.-

— Hon. F. C. Platt, J udge. Indictment charging defendant with the offense of practicing medicine without first obtaining a certificate therefor from the State Board of Medical Examiners. There was a verdict of guilty, and from the judgment entered thereon defendant appeals.

<p>1 Railroads: implied license to. use a footpath: negligence of company. Where a large number of persons have for some time been accustomed to use a well defined footpath in crossing the tracks of a railway company, to the knowledge of the officers and employes of the road, an implied license exists to cross the tracks at that point; and the company owes a pedestrian while using the path the same care that it would if the person were crossing in a public street or highway.</p> <p>2 Same: contributory negligence : submission of iss.ue. Unless there is such a lack of evidence that the court should set a verdict aside the issue should be submitted to the jury: so that where a plaintiff was injured in crossing the tracks of a railway company at the place where he had a right to go, and he testified that before crossing he looked and listened without observing an approaching train, the question of his contributory negligence should have been submitted; especially in view of the dispute in the evidence as to whether the engineer gave any warning signal, and the rate of speed at which the train was running.</p>

— Hon. J. B. Whitaker, Judge. Suit was originally brought at law against the Stanhope State Bank to recover on a check given by John M. Johnson to the plaintiff. Afterward an amended and substituted petition in equity was filed by the plaintiff making John M. Johnson a party defendant. Still later P. L and W. E. Peterson intervened, claiming the fund on which the check was drawn.

— Hon. J. H. Richard, Judge. Action at law upon a promissory note. Defendants pleaded failure of consideration and damages for false and fraudulent representations made by plaintiff with reference to the condition of certain lands leased to defendants. Trial to a jury, directed verdict for plaintiff, and defendants appeal.—

— Hon. H. M. Townee, Judge. Th$ above causes were beard together, and a decree entered in tbe first two, by tbe terms of wbicb judgment was entered in favor of Theodore Creveling against Banta in tbe sum of $1,744.41, with interest from September 4, 1904, and this established a lien superior to the claims of defendants on one hundred and ninety acres of land in dispute.

— Hon. W. B. Quarton, Judge. Action in equity to restrain the enforcement of a special assessment, levied to pay the cost of construction of a sewer system in the defendant city. The decree entered was - adverse to plaintiffs and they appeal.—

— ■ Hon. J. M. Parker, Judge. Dependant was indicted, tried, and convicted of the crime of larceny from a building, and from the judgment imposed appeals.—

— Hon. N. W. Macy, Judge. Action in equity to establish plaintiff’s dower in certain lands, of which one Frank Smith died seised. The trial court dismissed plaintiff’s petition, and she appeals.—

— Host. O. D. Wheeler, Judge. Indictment for willfully and maliciously burning a pile of railroad ties, tbe property of another. The defendant was convicted, and appeals.—

— Hon. J. H. Bichare, Judge. Action at law to recover damages for a personal injury. On trial the plaintiff had a verdict and judgment, and the defendant appeals.—

— Hon. J. W. Bollinger, Judge. Deeendant was indicted for the crime of rape. Upon trial to a jury he was convicted of an assault with intent to commit a rape, and appeals to this court.—

— Hon. Z. A. Church, Judge. Action for partition, involving the title of plaintiffs to a share in property of which defendant T. E. Williams claims to be the sole owner in fee. There was a decree for plaintiffs establishing their right to an undivided one-ninth of the property, and ordering a sale thereof for the purpose of making partition. The defendants T. E. Williams and M. E. Williams, his wife, appeal.—

— Hon. Z. A. Church, Judge. Action at law to recover upon a bond. Jury waived. Judgment for defendants, and plaintiff appeals. The opinion states the facts. — ■

— Hon. Hugh Brennan, J udge. Suit to recover from the United States Fidelity & Guaranty Company upon a bond securing the performance of a building contract entered into by the plaintiff and George A. Grant. There was a judgment for the plaintiff, from which the Fidelity & Guaranty Company appeals.—

<p>Appeal from Crawford District Court. — Hon. Z. A. Church, Judge.</p> <p>The opinion states the case.—</p>

— Hoñ. Z. A. Church, Judge. Action to recover the purchase price of certain beer paid by plaintiff to defendant, which beer it is claimed was sold by defendant to plaintiff in violation of law. There was a trial to a jury resulting in a verdict for defendant. Upon plaintiff’s motion the verdict was set aside and a new trial awarded.

<p>Appeal from Greene District Gourt. — 'Hon. Z. A. Church, Judge.</p> <p>Suit to recover a balance due for tbe construction of certain buildings. Tbe several defendants pleaded counterclaims upon wbicb they were given judgments. Tbe plaintiff appeals.</p>

<p>Appeal from Superior Court of Counsel Bluffs.— Hon. G. H. Scott, Judge.</p> <p>Suit to recover damage to live stock shipped over defendant’s road. There was a trial to a jury and a verdict and judgment for the plaintiff. The defendant appeals.—</p>

<p>Appeal from Calhoun District Court.— Hon. F. M. Powers, J udge.</p> <p>Action on promissory note resulted in judgment for part of it only. Plaintiff appeals.</p>

— Hon. W. R. Green, Judge. Action at law upon a bond given by defendants to bold the plaintiff’s county treasurer harmless from all loss by reason of deposits made by him in the Fremont County Bank. The case was tried to the court without a jury, resulting in a small judgment for plaintiff, and plaintiff appeals.—

<p>Appeal from Pottawattamie District Court.— Hon. W. R. Green, Judge.</p> <p>Action for damages resulted in a directed verdict for defendant, and judgment accordingly. The plaintiff appeals.—</p>

<p>1 Railways: shipment of live stock:, care of same: duty of com-pany. A contract for the shipment of hogs providing that they shall be watered, fed and cared for by the shipper in charge, has reference to the consumption of food and water while in transit; it does not impose on him the duty of showering the hogs in hot weather to reduce their temperature. This duty devolves upon the company having charge of the train and water supply, and its negligence with respect thereto cannot be relieved by contract.</p> <p>2 Same: care of stock: negligence: notice. The most that can be required of the shipper in such cases is to notify the employés of the company that the hogs are in need of showering because of excessive heat; but where the employés know the condition of the weather and that the hogs are suffering from heat the shipper may rely on them to discharge their duty in that respect without notice.</p> <p>3 Same: evidence. Under the evidence the question of whether the railway company properly performed the duty of showering the hogs while in transit was for the jury.</p> <p>4 Same: liability of connecting company. Where the evidence affirmatively shows that no injury occurred to stock in transit while on the lines of a connecting railway, joined as a defendant in a suit for negligent care of same, a verdict should be directed in its favor.</p>

— Hon. A. B. Thoenell, Judge. Action in equity to enforce tbe specific performance of a land contract. There was a judgment for the defendants, from which the plaintiff appeals.—

Appeals from Superior Court of Oelwein.— Hon. E. L. Elliott, Judge. These cases are substantially alike in their facts, and they have been submitted together, to be disposed of in one opinion. The facts will be stated in the opinion. In each case John Harrington intervened, and on his death, pending the trial, James Harrington, executor of his estate, was substituted.

<p>Appeal from Pocahontas District Gourt.— Hon. A. D. Bailie, Judge.</p> <p>The opinion states the case.—</p>

<p>1 Principal and agent: false statements of agent: liability. An agent falsely representing that the title to land which he is procuring for his principal is good, subject only to a mortgage which has not been foreclosed, is liable to his principal for the damage he may suffer by reason of the fact that there had been a foreclosure.</p> <p>2 Evidence: foreign deed: copy. A copy of a sheriff’s deed on foreclosure in a foreign State, duly certified by the clerk of the court in which the proceeding was had and the official character of the clerk is also certified by a judge of the court, when offered in evidence in this State, is not subject to the objection that it is not the best evidence.</p> <p>3 Conveyance under foreign law: presumption as to validity. The law of a foreign state will be presumed to be the same as that of Iowa in the absence of proof to the contrary; so that a sheriff’s deed to property in a foreign state made on notice and sale pursuant to a power of attorney cqntained in a mor-tgage will not be treated as a valid conveyance Jiy the courts of this State, without proof that the layy of the foreign state authorizes a transfer of title in that manner.</p> <p>4 Foreign laws: how proven. The courts of this State will not take judicial notice of the statutes, decisions, rules or methods of practice of another State, and while they may be proved as other facts still they must be pleaded and shown in evidence upon the trial to be available in our courts.</p>

J. H. Kichard, Judge. Suit to recover damages for a personal injury. There was a verdict and judgment for the plaintiff. The defendants appeal.—

<p>Constitutional Law: legislative enactments : sufficiency of title. The constitutional provision that a legislative act shall embrace but one subject and matter properly connected therewith, which shall be expressed in the title, should not be given a narrow construction; but if all the provisions of the act have one general object which is fairly expressed in the title it is a compliance with the constitution: so that a statute authorizing a city to purchase ground, erect public buildings thereon and to levy a special tax for that purpose, comprehends the issuance of bonds in anticipation of the tax, which latter provision is germane to the main purpose of the act and not of such a separate and independent character as to require separate mention in the title.</p>

— Hon. Wm. G. Thomp- ' son, Judge. Action to recover damages fpr the conversion of straw removed by defendant, plaintiff’s lessee, from the leased premises in violation of a covenant in the lease. There was a verdict for the defendant, and from a judgment thereon plaintiff appeals.—

<p>Appeal from Ida District Court. — Hon. E. M. Powers, Judge.</p> <p>Appeal from an order modifying a former decree.—</p>

<p>Appeal from Polk District Gourt.— Hon. Hugh Brennan, Judge.</p> <p>Suit in equity, brought by the Atlas Assurance Company against the Atlas Insurance Company; both being corporations doing a fire insurance business in the State of Iowa, wherein the plaintiff seeks to restrain the defendant from in any manner using the trade-mark, symbol, or device of the plaintiff. There was a decree in the plaintiff’s favor, from which the defendant appeals.—</p>

— Hon. C. W. Vermillion, Judge., The appellants, who are O. W. Cothern and Ollie Crutcher, with Albert Evans, James Garrett, George Vandewenter, and Irvin Hicks, were jointly indicted for larceny. All the defendants — except Evans, who had not been apprehended— pleaded not guilty, and were tried together, with the result that the appealing defendants, Cothern and Crutcher were found guilty, and the other defendants were found not guilty.

— Hon. H. K. Evans, Judge. Action in equity to subject certain real estate to tbe satisfaction of á judgment. A demurrer was interposed to tbe petition, and sustained. Plaintiff appeals.—

— Hon. Robert Sloan, Judge. Action to enjoin and restrain defendant treasurer from collecting a tax upon plaintiff’s property in the city of Ottumwa to pay certain bonds issued by Wapello county, and to enjoin the defendant board of supervisors from levying, or attempting to levy, any taxes upon the taxable property within the city of Ottumwa to pay either the interest or the principal of said bonds.

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>Action in equity by plaintiff as stockholder in the Mt. Vernon Stone Company to have the company dissolved, its business closed up, and a receiver appointed for that purpose. There was a decree for plaintiff, from which defendants appeal.—</p>

— ■ Hon. W. H. McHenry, Judge. Action for tbe value of services rendered as manager of the defendant corporation. Verdict was directed for the defendant, and judgment entered accordingly. The plaintiff appeals.—

— 1 Hon. Wm. G-. Thompson, Judge. Action at law to recover damages for the death of the plaintiff’s intestate. Verdict and judgment for plaintiff, and defendant appeals.—

<p>Appeal from Davis District Court.— Hon. C. W. Vermillion, Judge.</p> <p>The defendant appeals from a judgment awarding plaintiff damages for injuries received in a collision of defendant’s train and certain cars on its track.—</p>

<p>1 Municipal corporations: sidewalk accident: description of place: amendment. Where the place at which an accident occurs by reason of a defective sidewalk is fairly identified in the petition, an amendment which merely makes the description more certain does not introduce a new cause of action rendering the bar of the statute operative, even though filed after the time an action must be instituted.</p> <p>2 Same: amendment of petition: continuance. Amendment of the petition in a personal injury action which merely alleges an additional element of damage, that so far as the record discloses can be investigated during the trial, is not necessarily ground for a continuance over the term; and in the absence of a showing of prejudice its refusal is not such an abuse of discretion as to constitute reversible error.</p> <p>3 Same: damages : pain and suffering : pleadings. Where the allegations of the petition in a personal injury action are to the effect that the injury is permanent and that future pain is reasonably certain, a general allegation of damages comprehends future pain; but if the allegations of the injury do not indicate a condition likely to cause future pain, and such inference is negatived by allegations of the several elements of damage to be considered, future pain and suffering should net be taken into consideration.</p>

— Hon. Z. A. Church, Judge. Action to enjoin defendant Cahill as road supervisor and the county of Sac from opening á public highway, one mile m length, in Sac county. The trial court granted the relief prayed, and defendants appeal.—

— IIon. F. M. Powers, Judge. The defendant was a tenant on plaintiff’s farm for a term of three years, beginning March 1, 1902.

<p>1 Appeal: briefs : motion to strike. Briefs and arguments will not ordinarily be stricken because not filed in order, and in the instant case the motion to strike might have been good if directed solely to appellant’s reply, or at least time could properly have been granted for appellees to meet the argument: but as the motion was to strike all of appellant’s argument it should be overruled.</p> <p>2 Drainage: manner of raising funds: joint action of counties. The boards of supervisors of counties into which a drainage district extends have the power, acting jointly, to determine how the funds shall be raised to meet the expenses apportioned to each county for constructing the drainage system.</p> <p>3 Same: requirement that contractors purchase bonds. The super-visors of two counties have no power, whether acting jointly or severally, to provide that contractors for the construction of a drainage system extending into both counties shall purchase bonds to provide a fund for preliminary expenses and for the rights of way: and such a requirement, manifestly operating to increase the amount of bids and to prevent competition, should not be included in the notice to contractors, or in the contracts; but where a bid was not made with a view to buying bonds for that purpose and the contract made no reference thereto it should not be held invalid.</p> <p>4 Same: contracts: provisions for payment: construction. A con-tract for the construction of a drainage system, extending into two counties, that the contractor shall take in payment drainage bonds of the district, should be construed as requiring him to take, not bonds of the district for the issuance of which there is no authority, 'but such bonds as each county acting independently may lawfully issue; especially where the proceedings of the boards indicate an intention to issue such bonds.</p> <p>5 Same: issuance of bonds to contractors: injunction by tax-payers : estoppel. Taxpayers who knew that work was progressing under contracts for the construction of a drainage system and that their lands were to be taxed to pay the expense; that an irregularity existed in the making of the contracts to which they failed to make timely objections in the proper manner; and whose lands were to be specially benefited by the improvement, are estopped to question by injunction the validity of the contracts, because of a mere irregularity in the proposed method of issuing and disposing of bonds to pay the preliminary expenses of the system; where the supervisors have authority to raise funds in that manner when properly exercised.</p> <p>6 Same: estoppel. After a taxpayer has submitted his case involving objections to a tax upon one theory he cannot by amendment to his petition change his grounds of objection.</p> <p>7 Same: irregularity in contract: waiver. That part of a contract providing for the joint issuance of bonds for the construction of a drainage system extending into both counties is a mere irregularity, which may be rejected and the contract be otherwise enforced.</p> <p>8 Same: rejection of bids: modification of contract. The board of supervisors may reject a bid for the construction of a drainage system when the bidder is not responsible, and its action is not reviewable; and it may modify the contract made with the lowest responsible bidder when for the benefit of the property owners, without resubmitting the matter for bids.</p> <p>9 Same: injunction. The. discretion of supervisors in letting a con-tract for the construction of a drainage system will not be interfered with by the courts, where no actual fraud is shown and the ■evidence on the question of price is conflicting.</p> <p>10 Same: appeal. Upon an appeal from the action of supervisors in proceedings for the construction of a drainage system there must be the clearest kind of proof that the officers have acted without jurisdiction, or have abused the powers conferred upon them, to justify interference by the courts.</p>

<p>Appeal from Johnson District Court.— Host. J. H. Preston, Judge.</p> <p>This is an action under Code, section 4087, to subject the property of C. A. Murphy to the satisfaction of a judgment against him, and asking the appointment of a receiver for said property. A receiver was appointed, and, from said order, the defendants appeal.—</p>

<p>Appeal from Cedar District Court.— Hon. B. H. Miller, Judge.</p> <p>The opinion states the case.—</p>

— Hon. R. P. Howell, Judge. The defendants were charged by indictment with the crime of feloniously exposing an infant child. At the close of the evidence for the State, the defendants moved for an instructed verdict in their favor, and the motion was sustained. Judgment was entered discharging the defendants, and the State appeals.—

<p>Appeal from Linn District Court.— Hon. B. H. Hiller, Judge.</p> <p>Action in equity to enjoin the enforcement of an assessment to plaintiff of property omitted from taxation. There was a judgment for defendant, and plaintiff appeals.</p>

<p>1 Direction of verdict. Where no other conclusion could properly be drawn from the evidence than that a valid gift of certain certificates of deposit and shares of bank stock had been made, a verdict in favor of the donee was rightly directed.</p> <p>2 Gifts: money in bank: when complete. A gift inter vivos be-comes complete when the intention of giving is fully consummated by a transfer of all right to and dominion over the thing given: and this rule applies to a deposit of funds in a bank, whether represented by passbook or certificate of deposit, when transferred by assignment and delivery.</p> <p>3 Same: corporate stock. A gift of corporate stock is complete by assignment and delivery with authority to effect a transfer on the books of the corporation.</p> <p>4 Same: delivery. Delivery directly to the donee is not essential to a complete gift: it may be to an agent or trustee if made with the intent of the donor to relinquish all control over the property and to invest title in the donee: nor is it material that enjoyment is postponed until the death of the donor.</p> <p>5 Same: temporary possession by donor. Where there has been a complete gift of certificates of bank deposits or shares of stock, the mere fact that temporary possession has been acquired by the donor for the purpose of collecting reserved interest or dividends, without intent of reinvesting him with the title, will not affect its validity.</p> <p>6 Evidence: harmless error. Erroneous exclusion of evidence is harmless where the answers desired, if taken, could not have affected the result.</p>

— Hon. R. P. Ho were, Judge. Action to establish a claim against the estate of Anna McDermott. There was a judgment aaginst the plaintiff, and he appeals.—

— Hon. O. H. Kelley, Judge. Action in equity to have an alleged chattel mortgage declared a lien upon the proceeds of the property covered by such chattel mortgage in the hands of the executor of the mortgagor’s estate. The trial court refused to give the plaintiff priority over other creditors as to the proceeds of the mortgaged property, and plaintiff appeals.—

<p>Appeal from Linn District Court.— Hon. B. H. Miller, Judge.</p> <p>Suit in equity to enjoin defendant from interfering with plaintiff in the possession of certain real estate. The trial court granted the relief asked and defendant appeals.</p>

— Hon. J. H. Rotiirock, Judge. Suit to recover damages for the wrongful discharge of water upon the land of the plaintiff and that of his wife. Verdict and judgment for the plaintiff, from which the defendant appeals.—

— Hon. W. G. Thompson, Judge. Suit in equity to enjoin the collection of taxes assessed against the plaintiff’s property. There was . a judgment for the plaintiffs,- from which the defendants appeal.—

— Hon. Franklin C. Platt, Judge. Action to recover the balance of tbe purchase price of certain storage batteries and electrical equipment, furnished by plaintiff to defendant at defendant’s instance and request, and to establish and foreclose a mechanic’s lien upon defendant’s property to the amount thereof. Defendant pleaded failure of consideration, and also a counterclaim for breach of warranty in the sale of the materials.

<p>1 Master and servant: negligence: assumption of risk. It is the duty of an employer to furnish his workmen a safe place to work; and a workman does not assume the risks incident to the employer’s neglect in this respect unless he knows and appreciates the danger involved in the unsafety of the place; and he is not guilty of contributory negligence unless the danger to which he is exposed is known or can reasonably be apprehended by him.</p> <p>2 Safe place to work: evidence. Evidence held to support a finding that the employer failed to furnish a workman, engaged in building a concrete abutment to a bridge, a place in which to work that was reasonably safe from accident, by reason of the manner of construction and use of an overhead scaffolding.</p> <p>3 Same: assumption of risk. While an employé assumes the risk of the negligence of his fellow workmen, he may also assume that his employer has taken reasonable precaution for his safety in the place assigned him and his coemployés to work; he is not bound to inspect his surroundings with respect to his safety, the arrangement, plan and construction of which he had nothing to do with; so that even though a fellow workman is negligent in the use of a scaffolding, still if the same was defectively constructed by the employer the negligence becomes concurrent and the danger incident thereto is not assumed.</p> <p>4 Same: contributory negligence. Where a workman when warned of a danger known to him removes himself from the zone of such danger, he is not guilty of contributory negligence because still within the range of another danger of which he had no knowledge.</p> <p>5 Same: instruction : safe place to work. An instruction which casts upon a workman, suing for a personal injury, the duty of making an independent investigation, to ascertain if the place in which he is put to work by his employer is safe, is erroneous.</p> <p>6 Same: assumption of risk. Where there is nothing in the evidence to show that a workman should have reasonably appreciated the danger causing his injury, the jury should be instructed that he only assumed such risks as he reasonably appreciated, or should have appreciated.</p> <p>7 Same. The risk assumed by a workman of continuing work in an unsafe place arising from the negligence of the employer, with knowledge and appreciation of the danger, is matter of defense to an action for injury and it is for the employer to show that as a reasonable man the employé should have known and appreciated the danger; this burden is not upon the employé.</p> <p>8 Same. An instruction which burdens an employé not only with knowledge of the general hazard involved in the work, of which he is presumed to have knowledge, but also of defects which he is not required to investigate unless the same comes to his knowledge, is erroneous.</p>

<p>1 Practice: legal and equitable issues : trial. An action for dam- • ages for false representations in the exchange of real estate with a general denial presents a law action which should.be tried as such; and although a counterclaim is also filed presenting, equitable issues, only, still when a trial of the law action first' will dispose of the whole case refusal to transfer the cause to the equity calendar is proper.</p> <p>2 Evidence: improper cross-examination: prejudice.' Although mat-ters- are improperly gone into on cross-examination of a party which are not developed on the examination in chief, still where the evidence so elicited is entirely consistent with and in support of his contention as disclosed by the direct examination, its admission is not prejudicial; nor will the admission of evidence not properly cross-examination be construed as prejudicial, though involving a contradiction of other witnesses not yet examined, where their evidence is such as to require a response from the party so testifying.</p> <p>3 Evidence: impeachment. The time and place of declarations sought to be introduced for impeachment purposes, should be fixed, so that the witness assailed may be advised; but where the witness sought to be contradicted testifies to a statemeht substantially as claimed no prejudice can arise from a failure to lay the proper foundation to contradict him.</p> <p>4 Evidence: memoranda. The memoranda of a sale kept by a merchant in the ordinary course of his business and as a part of his system of accounts is admissible to fix the date of the sale.</p> <p>5 False representations: similar statements. Misrepresentations in the sale of property similar to those upon which a recovery is sought, after they were known to be false, are admissible on the question of intent in subsequently making them.</p> <p>6 False statements on exchange of property: performance by plaintiff: evidence. In an action for false representations in the sale of property, the evidence is held sufficient to warrant a finding that plaintiff had performed his part of the agreement.</p> <p>7 Instructions: statement of issues: variance. The false representation alleged in this action was that defendant stated that the land he sought to exchange with plaintiff extended to a railroad track, and the court in stating the issues made the same statement and as suggested by the evidence added, “the ends of the ties resting upon the land.” Held, that as there was without dispute an intervening alley the departure of. the instruction from the pleadings was immaterial.</p>

— Hon. J. H. Preston, Judge. Action at law, to recover damages growing out of the sale of some gunpowder to plaintiff McEldon. The trial court directed a verdict for defendants, and plaintiffs appeal.

— ' Hon. E. O. Ellison, Judge. Action by plaintiff as the assignee of one Bentel to recover from defendant Braska money deposited with the latter as clerk of the district court by way of bail for O. D. Doty, plaintiff’s minor son, held to appear before the district court on the charge of a felony.

<p>Appeal from Clinton District Court.— Hon. A. P. Barker, Judge.</p> <p>Action at law to recover damages for a personal injury. There was a directed verdict in favor of defendant, and plaintiff appeals.—</p>

<p>Appeal from Linn District Court. — Hon. B. H. Milder, Judge.</p> <p>Suit to recover damages for a personal injury. Verdict and judgment for plaintiff. The defendant appeals.—</p>

— Hon. J. H. Noth rock, Judge. Action at law, to recover damages for failure to deliver a message announcing the fatal illness of plaintiff’s mother until it was too late for him to reach her bedside before death. Trial to a jury. Verdict and judgment for the sum of $1,000. Defendant appeals.—

— Hon. W. N. Treichler, Judge. The estate of Moses Barto was settled and the administrator discharged. Some time thereafter Nancy J. Harrison, a daughter by his first wife, ascertained that prior to his death he had deposited $4,850, with the defendant C. W. Murfield, August 3, 1904, and that this had not been administered, procured the order closing the estate to be set aside and herself appointed administratrix de bonis non.

<p>Appeal from Linn District Court. — 'Hon. B. H. Miller, Judge.</p> <p>Action at law to recover damages for personal injuries received by plaintiff on a sidewalk upon a bridge in defendant city. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.—</p>

•Hon. Frank R. Gaynor, Judge. Action to enjoin defendants, who are road supervisors and township trustees, from removing a certain fence claimed by them to be in the highway but alleged by plaintiff to be on the boundary between it and his land. Defendants prayed that plaintiff be restrained from interfering with the removal of the fence. The petition was dismissed, and decree entered for defendants as prayed. The plaintiff appeals. — ■

<p>Appeal from Pottawattamie District Court.— Hon. A. B. Thornell, Judge.</p> <p>The opinion states tbe case.—</p>

— Hon. Franklin O. Platt, Judge. Action for compensation of services rendered as an attorney. From an allowance of less than claimed, plaintiff appeals. Thereafter the defendants appealed.—

<p>1 Mutual insurance: constitution and by-laws: notice. An insuranee contract in which the assured agrees to be bound by the constitution and by-laws then in force or thereafter to be enacted is valid; and the assured is bound to take notice of by-laws, whether adopted prior or subsequent to the contract, if the contract makes the same a part thereof.</p> <p>2 Same: classification of risks: reasonableness. Although the occupations of brakeman and yard switchman were both classified as hazardous risks at the time the certificate was issued, still a subsequent by-law declaring the occupation of switchman m railroad yards an extra hazardous risk and not to be insured against, was not objectionable as an unreasonable classification.</p> <p>3 Same: change of occupation: vested rights. A benefit certificate holder who is bound by his contract to take notice of any reclassification of risks subsequently made, has no vested right which is impaired by the adoption of a by-law rendering an occupation, which he subsequently engages in, of a prohibited class and declaring void the certificate of one engaged therein.</p> <p>4 Mutual insurance: forfeiture: waiver. A waiver is a voluntary relinquishment of a known, right, and before it will be enforced it must clearly appear that the party against whom enforcement is sought was in possession of all the material facts: so that the acceptance of assessments or expense money incident to proof of death by a mutual insurance company, without a knowledge that assured had engaged in a prohibited occupation rendering his certificate void, was not a waiver of his right to insist on a forfeiture of the certificate.</p>

<p>Appeal from Davis District Court.— Hon. Robert Sloan, Judge.</p> <p>Caleb Collins died intestate and without issue August 11, 1905, seized of five farms, three in Iowa and two in Missouri. His wife had departed this life in 1898. His heirs, the parties to this action, are two brothers, T. F. and John W. Collins, John H. Collins, the only child of a deceased brother, Andrew Collins, the sis children of another deceased brother, Robert Collins, and the heirs of a deceased sister, Sarah Ann Hollingsworth. The action was in partition, but the only issue tried was raised by the cross-petition of James H. Collins, one of the sons of Robert, in which he alleged: That the same was sold to this defendant by the deceased during his lifetime for services rendered said deceased by this defendant, and this defendant has paid the purchase price of said Savanah farm, and said Caleb Collins was to convey the same to this defendant, but has neglected to do so. And in an amendment that: “ The said Caleb Collins, deceased, was to give to James Collins, the defendant herein and plaintiff in cross-petition, the Savanah farm for what services he, James Collins, had done for him, and, when Caleb Collins got sick and sent for the said James Collins, he was to come and help take care of him; but the said Caleb Collins was to have the use of said Savanah farm as long as he, Caleb Collins, lived, and, when he died, it was to become the property of James Collins.” The answer of the other heirs “ denies that the said Caleb Collins ever was or became indebted to the said James Collins for any of said alleged services or labor, and denies that the said James Collins is entitled to the relief asked, or is entitled to have the title to said lands quieted in him, and they deny that any contract or sale was ever made of said land by Caleb Collins to James Collins, and deny that Caleb Collins ever promised or agreed to convey or sell the land to the said James Collins for work performed for him by said James Collins, or for any other consideration or in any other way or manner, . . . deny that Caleb Collins ever sold the said Savanah farm to the said James Collins for the consideration set forth by James Collins in his cross-petition and the amendments thereto, or for any other consideration, and deny that the said Caleb Collins ever sold or gave or contracted to give to the said James Collins the said lands set forth in paragraph 4 of said Collins’ cross-petition, and known as the ‘ Savanah Farm.’ ” The answer also pleaded that the contract, if made, was within the statute of frauds. IJpon hearing the cross-petition was dismissed. James TI. Collins appealed. He has died since, and his widow and heirs have been substituted as parties plaintiff in his stead.</p>

— Hon. David Mould, Judge. Action to quiet title to certain real property and to recover attorney’s fees on account of the refusal of the defendant to execute a quitclaim deed under the provisions of Code, section 4226. There was a decree for plaintiff, and judgment for attorneys’ fees in the sum of $40. From this decree and judgment, defendant appeals.

<p>Appeal from Adair District Court.— Hon. James D. Gamble., Judge.</p> <p>Action on an indorsement of a promissory note. From judgment on a directed verdict for plaintiff, the defendant appeals.</p>

<p>1 Specific performance: executory contract to convey: future support. An executory contract to convey real property in consideration of future care and support is so. lacking in mutuality, until the care and support has been fully furnished; that no relief by way of specific performance of the agreement to convey can be given.</p> <p>2 Same: equitable relief. A court of equity should adjust its decree to such relief as the plaintiff shows himself entitled to under the evidence, irrespective of the objections made to the sufficiency of the pleadings: so that although plaintiff was not entitled to specific performance of an executory contract to convey real property, in consideration of future support to be furnished defendant until such support was furnished, yet an injunction restraining defendant from otherwise disposing of the property so long as plaintiff furnished, or was ready and able to furnish such support, should have been entered.</p>

<p>Negligence: collision of vehicle with street car: evidence. The driver of a vehicle is only required to exercise ordinary prudence to avoid collision in crossing a street car track, and if he observes an approaching car at such a distance that in the exercise of ordinary care he believes he can cross safely, but in attempting to do so a collision occurs, he is not to be charged with negligence as a matter of law. Under the evidence in the instant case the question of plaintiff’s negligence was properly submitted to the jury.</p>

<p>Appeal from Sioux District Court. — 'Hon. F. R. Gaynob, Judge.</p> <p>This is a contest over the award of the county printing. The plaintiff, the contestant, appeals.—</p>

<p>1 Criminal law: evidence: admissions. On a prosecution for break-ing and entering a freight depot the implied admissions of defendant made to the company’s agent in attempting to avoid a criminal prosecution, and not in settlement of any civil liability, are admissible against him.</p> <p>2 Breaking and entering: evidence. Proof that defendant rolled back a door to the freight house which was closed, entered and took the property, will support a charge of breaking and entering.</p> <p>3 Punishment. A sentence of three years and nine months is not an excessive sentence for breaking and entering a freight depot, when there was neither excuse nor palliating circumstances, except an offer to return the stolen property.</p>

<p>Appeal from Lee District Court. — 'Hon. Henry Bank, Judge.</p> <p>Action originally brought against Theophilus Myers to recover compensation for services rendered, and to establish the amount thereof as a lien upon a certain lot in the city of Keokuk. Pending the suit Myers died, and Parsons, his administrator, was substituted as defendant. The case was tried to the court as in equity, resulting in a judgment for the compensation claimed, but denying the lien prayed. Plaintiff appeals.—</p>

— - Hon. F. W. Eichel-BERGE®, Judge. Defendant was indicted for the crime of murder in tbe first degree. Upon trial, he was convicted of murder in the second degree, and was sentenced to the penitentiary for the term of fifteen years. He appeals.—

<p>Appeal from Butler District Cpurt.— Hon. O. H. Kelley, Judge.</p> <p>The defendant was convicted of the crime of incest, and appeals.—</p>

<p>Appeal from, Monroe District Qourt.— Hon. F. W. Eichelberger, Judge:</p> <p>A replevin action. The opinion states the case.—</p>

— Hon. M. A. Roberts, Judge. This action was first instituted before a justice of the peace to recover the possession of a roan mare called “ Dove,” of which the plaintiffs claimed to' be the owners, and which they alleged to be wrongfully detained from them by defendant. In the justice’s court there was a verdict for the defendant and a finding of the jury that the value of the mare was $20.

— IIon. Wm. Hutchinson, Judge. Action on a written instrument of guaranty. At the conclusion of the evidence there was a directed verdict for defendant, and from the judgment thereon plaintiff appeals.

<p>Appeal from Monroe District Court.— Hon. M. A. Roberts, Judge.</p> <p>Prosecution for libel. There was a verdict and judgment for defendant. The State appeals.</p>

<p>Appeal from Woodbury District Court.— Hon. David Mould, Judge.</p> <p>Suit to recover damages for the breach of a contract not to re-engage in business. Verdict and judgment for the plaintiff. The defendants appeal.—</p>

<p>1 Trusts: establishment by parol: sufficiency of evidence: To defeat a title, regular on its face, by parol evidence of a resulting or constructive trust arising from an express or implied agreement that such title shall be acquired and held for another, the evidence must be clear and satisfactory. Evidence held insufficient to show that the purchaser at a mortgage foreclosure should acquire the title and hold the same for the benefit of the mortgagor.</p> <p>2 Same: constructive trust. Where the purchaser at a mortgage foreclosure induced the mortgagor to allow him to acquire title to the land by means of a promise to refund to him his interest in the premises, intending thus to acquire title and hold it in violation of the agreement, equity will treat his acts as constructively fraudulent and impose upon him a duty in the nature of a trust to carry out his agreement; and this trust obligation may be shown by parol. Evidence held to show an agreement to refund to mortgagor his interest in the property, which includes the equitable interest, rents and any moneys paid the mortgagee to be applied on the mortgage.</p> <p>3 Same: enforcement. Where the apparent interest of the husband in land held by him jointly with the wife was purchased with her money, she was guilty of no such fraud toward him in agreeing with the mortgagee that he should acquire title by foreclosure for her benefit only, so as to defeat her right to enforce the agreement with the mortgagee.</p> <p>4 Same: limitations. The statute of limitations does not run against a trust until there has been a denial or repudiation of the trust.</p> <p>5 Trusts: enforcement: estoppel. Where the mortgagee at a fore-closure sale purchases the property under an agreement with the mortgagor to refund to him the amount of his equity in the premises, the judgment of foreclosure is not conclusive of the rights of the parties; and the mortgagee is estopped to deny the right of the mortgagor to enforce the agreement.</p> <p>6 Same: payment: evidence. Evidence examined and held to sup-port a finding of the trial court that the mortgagor paid certain items to be applied on the mortgage indebtedness, and for which the mortgagee should account, under his agreement to refund the mortgagors equity upon procuring title by foreclosure.</p> <p>7 Same. Evidence also reviewed and held to show that the trial court erred in failing to allow the mortgagor credit for a certain item. '</p>

— Hon. O. G. Lee, Judge. The opinion states the ease. The court directed a verdict in favor of defendant, and the State appeals.—

<p>1 Intoxicating liquors: statement of consent: appeal: payment of fee. Where a proceeding to test the validity of a statement of consent to the sale of liquor was docketed in the district court, prior to filing of a motion to dismiss the same because the docketing fee had not been paid, the motion was rightly overruled.</p> <p>2 Sufficiency of statement of consent: manner of trial. The determination of the sufficiency of a statement of consent to the sale of liquor on appeal is a special proceeding triable to the court as a law action, and the right to a continuance for the purpose of taking the testimony in writing does not obtain.</p> <p>3 Same: amendment: limitations. The allegation of citizenship by way of amendment to the original denial of the statement of consent is not the introduction of a new cause of action, and is not barred because not filed within thirty days as provided by Code, section 2450.</p> <p>4 Pleading: denial of capacity to sue. One contesting the sufficiency of a statement of consent to the sale of liquor does so as a representative of the public and may allege his citizenship generally, as showing his capacity to sue, which he is not required to prove under a general denial; but to raise the issue of his want of capacity the facts relied upon must be specifically pleaded.</p> <p>5 Consent petition: withdrawal of signatures. The written with-drawal of names from the statement of consent to the sale of liquor need not show the voting precinct of the signers thereto, as in the case of signatures to the statement itself.</p>

— Hon. Z. A. Church, Judge. Action at law by plaintiff, as administratrix of the! estate of Patrick Henry, deceased, to recover damages occasioned by the negligence of defendant as alleged, resulting in the death of said Henry. At the close of the evidence for plaintiff there was a directed verdict and judgment for costs in favor of defendant. Plaintiff appeals.—

— Hon. B. H. Miller, J udge. Suit to establish a lien, against certain real estate in the name of the assignee was dismissed. Claimants appeal.

— Hon. C. G. Lee, Judge. Action on a promissory note for $400, and for damages under a lease of farm land by plaintiff to defendant Ed Fenton, in which plaintiff asked for an attachment against the property of defendant, and in pursuance of which there was a levy on said defendant’s property, which was released 'by delivery bond.

— Hon. David Mould, Judge. Action for damages resulting to the estate of plain-. tiff’s decedent from his alleged wrongful death. From judgment against it, the defendant appeals.—

— 'Hon. O. D. Wiieeier, Judge. Action in equity by Margaret Pegg, claiming to be tbe widow of Elias W. Pegg, deceased, to have her right to one-half the property of the decedent confirmed in her as his widow, to have said property partitioned, and to have defendants enjoined from interfering with plaintiff in the enjoyment of the property alleged by her to have been occupied by her and decedent at his death as a homestead, and asking other equitable relief.

<p>1 Bail: surrender of defendant. Technically speaking bail is a surrender of the accused into the friendly custody of the sureties on his bond, who become bailees or custodians of his person; and the sureties may be exonerated by a surrender of the accused to the authorities at any time before forfeiture of the bond, and possibly at any time before judgment.</p> <p>2 Same: forfeiture of bond: excuses. The purpose of the bail bond is to secure the attendance of defendant upon court rather than to profit by its breach, and for this reason a defendant may excuse a forfeiture of the bond for good cause shown and his sureties will be exonerated if he is produced in execution of the judgment; but neither the fact that defendant forgot the date he was to appear; that he had no money to get from his residence to the place of trial and could borrow none; nor, that he was ill at the time, no showing being made that the nature of his sickness prevented his attendance, constitutes a sufficient excuse to obviate the forfeiture of the bond.</p> <p>3 Same: appeal: matter not presented below. The fact that a defendant appeared and pleaded guilty and was sentenced after forfeiture of his bond, will be given no consideration on appeal, where the same was not made a ground of the motion in the trial court to have the entry of forfeiture set aside.</p>

— Hon. Edmund Nichols, Judge. This is a proceeding to charge a referee in partition with taxes upon certain contracts made by him for the sale of lands belonging to the heirs of Elias Cardell, deceased. The trial court held that the referee was not liable for taxes upon the contracts, and Dallas county and its auditor appeal.—

— Hon. Edmund Nichols, Judge. Suit in equity asking the specific performance of a land contract. Judgment for tke defendant, from which the plaintiff appeals. The costs were apportioned, and, from that part of the judgment, the defendant appeals. The plaintiff will be designated as appellant.

— Hon. W. H. McHenry, Judge. Proceedings to vacate and set aside a decree of divorce. The application was denied, and defendant-appeals.—

— Hon. Hugh Brennan, Judge. Action at law to recover damages. The opinion states the case. Plaintiff had a verdict and judgment in the court below, and therefrom defendant appeals.—

<p>Deeds: delivery: intent: evidence. The question of delivery of a deed is chiefly one of intent to be gathered from the circumstances surrounding the transaction as well as from direct proof; and where a deed is handed to a third person under circumstances indicating a desire and intention of the grantor that upon his death it shall be delivered to the grantee named therein, it constitutes a delivery, although there was no express direction so to do; and it is immaterial that neither such third person nor the grantee knew of the character or existence of the instrument until after its actual delivery to the grantee. Evidence held to establish an effective delivery.</p>

— Hon. F. M. Powers, J udge. Action to recover the amount paid by plaintiff to satisfy a mortgage on land conveyed by plaintiff to defendant subject to such mortgage. There was a counterclaim for false representations as to the character of the land. From a judgment on a verdict for defendant, the plaintiff appeals.

<p>Appeal from Linn District Court.— Hon. Milo P. Smith, Judge.</p> <p>Action in equity for the foreclosure of a mortgage. Decree for plaintiff, and defendants appeal.—</p>

— Hon. A. J. House, Judge. Action to recover damages for personal injuries sustained by falling on a crosswalk of defendant city, defective by reason of the negligence of the city. At the close of the evidence the court sustained defendant’s motion for a directed verdict in its favor, and from a judgment on such verdict the plaintiff appeals.—

— Hon. David Mould, Judge. Plaintiff had a verdict against defendant company for damages received by him while a passenger upon one of defendant’s trains. On defendant’s motion this verdict was set aside and a new trial awarded. Plaintiff appeals.—

— Hon. A. S. Blair, Judge. Action to have certain territory severed from the city of Waterloo. There was a verdict and judgment for the plaintiffs, from which the defendant appeals.—

<p>1 Application of payments: secured and unsecured claims. A cred-itor holding claims secured by a chattel mortgage of his debtor and his wife, and also unsecured claims against the husband alone, may apply payments made by the husband to the satisfaction of the unsecured debts, in the absence of any direction otherwise, even though such payments were made from a voluntary sale by the mortgagor of the mortgaged property; and his right so to do is unaffected by the fact that the wife was surety on the secured debts and not upon those unsecured, where it appears that she had no real interest in the property but signed the mortgage to avoid the question of exemptions.</p> <p>2 Same. The rules which bind a mortgagee on foreclosure and sale of the property to apply the proceeds to the satisfaction of the mortgage debt have little application, where the payments are made from a voluntary sale of the mortgaged property by the mortgagor.</p> <p>3 Same. As between two debts, one due and the other not due, there is a strong presumption that payments made without express direction as to their application were intended to apply on the matured debt; and the trend of authority is to the effect that the creditor has no choice but must so apply them.</p> <p>4 Same: abatement of actions. Where the mortgagee was in possession of the mortgage during all' the time that payments thereon were made, alleged his ownership and brought the same into court, and the mortgagor pleaded and proved payments made to him and treated him as owner after the time it was contended he had parted with the ownership, the mortgagor could not rely on a general allegation in his answer that the mortgagee was not the real party in interest and thus abate the action.</p>

<p>1 Principal and agent: agency: evidence. On an issue as to whether defendant was the purchaser of the note in question or received it from plaintiff for collection, the evidence is reviewed and held to justify a finding that the defendant received the same for collection, and to support a verdict for plaintiff for the full amount defendant collected from the maker.</p> <p>2 Instructions: failure to request: prejudice. Where the court instructed the jury in an action to recover the amount of notes claimed to have been collected by defendant as its agent, that unless plaintiff proved by a preponderance of the evidence that it sent the notes to defendant for collection it must fail, defendants could not complain of the court’s failure to refer to his affirmative defense that he purchased the notes; especially as he requested no such instruction.</p> <p>3 New trial. Where the evidence discloses that defendant is en-titled to a credit on the sum claimed by plaintiff, failure of the court -to instruct the jury to allow the same is ground for a new trial, unless plaintiff consents to a remittitur.</p>

— Hon. Btron W. Preston, Judge. Action for partition of two hundred and forty acres of land in Jasper county among the heirs of Solomon M. Slaughter. Partition was resisted by the heirs of Joseph and Belinda Slaughter, from whom Solomon acquired title, on the ground that the conveyance to him was void for want of mental capacity and undue influence.

Appeals from BlachhawJc District Court.— Hon. A. S. Blair, Judge. These two actions were proceedings instituted and tried under the provisions of Code, sections 622-627, to have certain territory, consisting of lands used solely for agricultural purposes, severed from the corporate limits of defendant city. In the first there was a trial to the court without a jury, and judgment was entered for the plaintiffs.

<p>1 Murder: Corpus delicti: death by strangulation: evidence. On a prosecution for murder the evidence is reviewed and held sufficient to establish the corpus delicti independent of defendant’s confession; that the death was not suicidal but felonious; and that defendant accomplished the crime by strangulation,aided therein by the administration of chloroform.</p> <p>2 Juries:' challenge for cause by state: prejudice. Conscientious scruples against infliction of the death penalty is not a ground of challenge for cause by the State, but where jurors were excused for that reason and prior to completion of the jury the court discovered its error, ordered the names returned to the box and that another jury be called, no prejudice arose of which defendant could complain from the action of the court in reconsidering its ruling.</p> <p>3 Argument: prejudicial statements of counsel. Although ref-erence by counsel to a statement of defendant relating to his conduct toward deceased, which is claimed by a defendant accused of murder to have been made in his sleep, is not admissible; still, when there is nothing in the record aside from the nature of the statement to apprise the court whether defendant claimed to have been asleep when making the statement, it was not error to allow the statement of counsel to stand.</p> <p>4 Murder: evidence of details of crime. Where the evidence tended to show the administration of chloroform in connection with the killing of deceased, it was competent to show the purchase of chloroform by defendant just prior thereto, under an indictment charging death from strangulation at the hands of defendant; since the evidence simply tended to explain the details of the crime and not to prove that it was committed otherwise than as alleged.</p> <p>5 Same. Proof that defendant was lighter in weight than deceased does not negative the fact that he could not have hung the body up; especially as there was nothing in the record to show the length of the rope from the neck to the fastening above, or that the body swung clear.</p> <p>6 Rebuttal evidence: theory of crime: evidence in support of. Evidence of the condition and appearance of one dying from strangulation is competent, in rebuttal of the inference to be drawn from the suspended position of the body when found, that death had resulted from hanging; and where the State’s evidence tended to show that deceased was first disabled by chloroform and then strangled by defendant, evidence of the effect of chloroform was admissible to sustain that theory.</p>

<p>1 Pleadings: amendment: leave to file. Where an amendment to a pleading was filed in open court during the progress of the trial, was entered upon the notice book, was embodied in the court’s instruction and presented an issue which the opposite party claimed was in the case, an objection that formal leave to file the same was not granted is not tenable.</p> <p>2 Railroads: contributory negligence: evidence. A brakeman in a personal injury action may show the condition of the coupling device of the car he was endeavoring to uncouple when injured, although not the basis of a charge of negligence, for the purpose of describing his situation and the manner of his injury, and as bearing on the question of his freedom from contributory negligence.</p> <p>3 Special interrogatories. The court should refuse a special inter-rogatory which is covered by those given, one which calls for the conclusion of the jury upon all the facts rather than for a finding of some special fact, or one which calls for a special verdict.</p> <p>Ladd, C. J., and Bishop, J., dissenting.</p>

— Hon. W. R. Green, Judge. Francis Richardson, a resident of Shelby county, disappeared in August, 1896, and is supposed to be dead. He was at the time of his disappearance the owner of about 1,900 acres of improved farm land in that county and in Audubon county, and of a large amount of personal property, consisting mainly of notes and mortgages executed by farmers living in those counties.

<p>Appeal from Polk District Gourt.— Hon. A. H. MoYey, Judge.</p> <p>The opinion states the case.—</p>

<p>Intoxicating liquors: contempt: failure to file list of employés. The statute requiring a saloonkeeper to file with the county-auditor a list of persons employed about his place will be strictly construed, when considered in connection with contempt proceedings for failure to comply therewith; so that if he has no employés he is not guilty of violating the law by failing to file a statement of that fact: it is only when he employs persons that a list of their names must be so filed.</p>

<p>1 Intoxicating liquors: nuisance: evidence. Evidence reviewed and held to show that defendant, a restaurant keeper, in whose possession was found a large quantity of beer, had the same for illegal sale, and also held sufficient to support an injunction restraining the nuisance.</p> <p>2 Appeal: abstracts: time for filing. Where an appellee serves an amended abstract more than eight months after the appellant’s abstract is served, and no excuse for the delay is made, it should be stricken from the files because not filed within the time required.</p>

— Hons. L. E. Eel-lows and A. N. Hobson, Judges. Action at law to recover attorney’s fees for services rendered one Chas. P. Barker. The trial court directed a verdict for plaintiffs, and defendant appeals.

— Hon. M. C. Matthews, Judge. Action at law to recover damages for the death of plaintiff’s intestate, alleged to have been killed by reason of the negligence of the defendant. Judgment for plaintiff, and defendant appeals.—

Appeals from Kossuth and Palo Alto District Courts. — ■ Hon. W. B. Quarton, Judge. Two actions were brought by plaintiff against defendant, one in Kossuth and the other in Palo Alto county. The action in Kossuth county was for an accounting, and the one in Palo Alto was to cancel a deed, made by plaintiff to defendant, for a life estate in a certain eighty acres of land therein situated.

— LIon. Jesse A. Miller, Judge. Suit in equity for the specific performance of an agreement to convey real estate. Defendants pleaded that the contract was without consideration, and that it was obtained by fraud and signed by mistake as to its true import. Th,e case was tried to the court, resulting in a judgment dismissing plaintiff’s petition, and he appeals.—

— Hon. O. G. Lee, Judge. Action iu equity to set aside a sheriff’s sale and deed under decree of foreclosure, and to quiet title in plaintiffs to certain described real property which defendant claims as purchaser under such foreclosure sale. There was a decree dismissing plaintiffs’ petition on the merits, and plaintiffs appeal.—

<p>1 Taxation: review of assessment: remedy. The statute provides for an appeal from an assessment as finally settled by a board of review, and therefore an original action in equity will not lie to review the assessment, except when the board has acted without jurisdiction.</p> <p>2 Same: jurisdiction: notice of appeal. To give the-court jurisdiction on appeal from the action of a board of review in the matter of an assessment of property, a written notice of appeal must be served as provided by statute, and unless failure to serve the notice is cured the court is not authorized to consider the merits of the controversy, even though the objection is not raised by counsel.</p> <p>3 Same: transcript of board proceedings. A transcript of the proceedings before the board of review must be filed in the district court to .give the court jurisdiction, and for the purpose' of defining the issues; and while it is permissible to file 'pleadings on appeal they cannot be made a substitute for the transcript, and in its absence will not confer jurisdiction.</p>

<p>1 Discharge in bankruptcy: effect: judgments. The taking and appropriating of plaintiff’s property without his consent, is an unlawful and wilful injury to property, and a judgment for the value thereof is not released by a discharge in bankruptcy.</p> <p>2 Same: malicious injury. The taking, carrying away and appropriation of another’s property without his consent is a “ malicious ” injury to the property, within the meaning of the bankruptcy act.</p>

<p>1 Intoxicating liquors: bond: cancellation: statutes: mandamus. Neither chapter 54, Acts 29th General Assembly, nor Code, section 1183, referred to therein, relating to qualification for office, requires any action on the part of approving officers in cancelling an official bond after notice by the surety of cancellation, but contemplate that notice by the surety company and return of the unearned premium shall operate ipso facto, as a cancellation, and mandamus to compel such officer to act in the premises will not lie.</p> <p>2 Same. Chapter 54, Acts 29th General Assembly, relating to the cancellation of official bonds has no application to bonds given under the mulct law; since such a bond is continuing and cannot be cancelled by the surety during any year with reference to which it has taken effect; but it may be revoked at the close of any year by proper notice to the officer whose duty it is to see that a sufficient bond is on file.</p>

<p>1 Municipal elections: increase of indebtedness: statutes: right of women to vote. Sections 1 to 4 inclusive of chapter 34, Acts 32d General Assembly, with reference to the purchase of ground and erection of city halls in cities of more than 50,000 population, do not confer separate powers, but are interdependent and were enacted with the single purpose of authorizing such cities to erect city halls by the levy of a special tax, or the issuance of bonds for that purpose; and upon a proposition submitted to the popular vote involving the question of increasing the municipal indebtedness by either method for that purpose, women, having the other qualifications, are by the provisions of Code, section 1131, entitled to vote.</p> <p>2 Elections: constitutional qualification of voters: legislative modification. Article 2, section 1, of the constitution prescribes the qualification of voters at municipal elections, as the term is used in the constitution, and the legislature has no power to add to or subtract from such qualifications.</p> <p>3 Same. Article 2, section 1 of the constitution has reference to the qualification of voters at the elections for the choice of officers only, so that Code, section 1131, authorizing women to vote on questions of municipal indebtedness in cities of 50,000 population, is not in violation of that constitutional provision.</p> <p>4 Class legislation: exemption of women from registration. The 4 fact that the statute does not require women to register the same as men, as a prerequisite of the right to vote on the question of municipal indebtedness in cities of 50,000 population, is not such an unreasonable classification as to violate the constitutional provision prohibiting class legislation.</p> <p>5 Elections: denial of eight of women to vote: effect. Where the refusal of women to vote on the question of municipal indebtedness was not based on the disqualification of the particular individuals offering to vote, but objection was directed against them as members of a class, and it appeared that there were enough, qualified voters of that class in the city to have changed the result, the refusal of the votes offered invalidated the election, although the reception of the same would not have changed the result.</p>

— Hon. John E. Oliver, Judge. Action to establish and foreclose a mechanic’s lien upon a certain hotel property in the city of Sioux City. The trial court rendered judgment against the owners of the property, and established a lien against the building, dismissing the action as to the original contractor, Keefe, and Donohue, the tenant. The property owners, Purslow and Miller, appeal. — ■

<p>Homestead exemption: rights of wife divorced on ground of insanity. The homestead exemption is purely of statutory origin and can be enjoyed only by those persons or classes designated by the legislature; and a'woman confined in an asylum for the insane, and without issue or others depending upon her, whose marriage has been annulled on the ground of her insanity at the time of her marriage, has no homestead' interest in the property of her divorced husband which is exempt from execution on that ground; since by reason of her insanity there could be no valid contract of marriage which would confer upon her any marital rights or duties.</p>