Volume 43 — Iowa Reports

Action in chancery to establish and quiet in plaintiff the title to tlie undivided eleven-eighteenths of two hundred and eighty acres of land in Black Hawk county. The relief was granted as to one hundred and sixty acres of the land, and denied as to the remainder. Both parties appeal. The facts of the case are stated in the opinion.

This is an appeal by the plaintiff from an order granting a motion made by the defendant for a new trial. The motion was made upon the ground of misconduct of one of the jurors. The defendant filed affidavits tending to show that on the evening of the day on which the trial commenced (the trial not yet being concluded), one of the jurors drank intoxicating liquor and became intoxicated.

The policy, annexed as an exhibit to the petition, contained the following provision: “ When a promissory note is given by the assured for the cash premium it shall be considered a payment, provided such note is paid at or before maturity.

The plaintiff is the owner of two tracts of land in the county of Wapello, which tracts are used as one farm, although they do not join. The larger tract consists of about four hundred acres, and the smaller tract of about twenty-nine acres, and is crossed by a stream of water known as North Avery creek.

The defendant, to procure the right of way, caused the same to be appraised by commissioners selected by the sheriff, from which appraisement the plaintiff and ten others appealed to the Circuit Court. The appeals were separately taken, and tlhe attorneys for each of the appellants were the same. The notices of appeal were served by one of said attorneys.

In November, 1870, Michael Pearson was the owner of three forties of land, lying in the form of a rectangle. The plaintiff purchased thirty acres off from the east side, and ten acres off from the west side of this tract. The defendant purchased the intermediate eighty acres. On the west line of the west ten acres, purchased by plaintiff, was an entrance to a coal bank. There was no other entry to the coal on any other part of the land.

This suit was brought upon a written agreement executed by the defendant to the plaintiff, by the name of the Dubuque and Minnesota E. E. Co., whereby the defendant bound himself to pay said company the sum of one hundred dollars thirty days after the first locomotive should run to a point within the corporate limits of the city of G-uttenburg.

Action by attachment upon an account for goods and merchandise sold by plaintiff to defendant. The defendant denies the existence of the causes upon which the attachment was issued, avers that the goods purchased by her of plaintiff were bought on five months time, and whatever sum she owes to plaintiff was not due, at the commencement of the suit, and denies the averments of the petition as to the amount of her purchases.

On the 15th day of August, 1872, the plaintiff and defendant, Vm. S. Arnold, entered into a written contract by which said Arnold agreed to convey to plaintiff his farm of 120 acres, in Scott county, Iowa.

<p>1. Constitutional Law: municipal corporation: illegal indebtedness. That a part of the indebtedness contracted by a municipal corporation for a certain purpose is within the constitutional limit will not legalize that portion of it which is in excess of the limit.</p> <p>2. Municipal Corporations: powers: acts. The powers of municipal corporations are created only by positive enactment, and any act done m the exercise of a power not thus created is void.</p> <p>3. -:-: -. The attempted exercise of powers not conferred is equally illegal with the exercise.of a prohibited power.</p> <p>4. -: bonds: innocent holders. In the absence of power to execute municipal bonds, no subsequent transfer of the bonds will give them effect, and they are void even in the hands of bona fide holders.</p> <p>5.--: -: -. The purchasers of the bonds of a municipal corporation are charged with knowledge that such a corporation has only express and limited powers and are bound at their peril to ascertain whether the bonds have been issued in compliance with law.</p> <p>6. -:--: estoppel. That the tax-payers of such a corporation ■ ■ have stood by in silence and permitted the bonds to be issued does not > estop them to object to their legality in the hands of an innocent holder.</p> <p>7. -: constitutional law: agency. The constitutional restriction upon the creating of indebtedness does not operate upon the municipal authorities, as agents of the corporation, but upon the corporation itself as principal, and therefore the latter cannot be bound by an act of its agents creating such indebtedness.</p> <p>8. -: -: assent oe the public. The creating of the indebtedness being ultra vires, the assent of all the people of the corporation thereto would not make the debt valid.</p> <p>9. -:--: exercise op powers. Where the constitutional restriction affects the manner, and not the fact of the exercise of powers, acts not within the scope of the express powers of the corporation may not be ultra vires; but aliter, if the exercise of the power is prohibited.</p> <p>10. -: negotiable paper: bona eide holder. That a municipal'* corporation has authority to issue negotiable paper will not authorize the presumption that bonds issued upon indebtedness in excess of the constitutional limitation were issued upon the requisite authority.</p> <p>11. -: -: -. The holder of such bonds takes them with \ notice of their infirmities.</p> <p>12. -: estoppel: subsequent acts. The subsequent recognition by a municipal corporation of acts done in the exercise of a prohibited power will not estop it to afterwards deny the validity of the acts.</p> <p>13.--: bonds: recovery of amount paid for. The fact that bonds issued in excess of the constitutional limit are void and that the corporation has received value for them, does not entitle the holder to recover the amount paid therefor from the corporation.</p> <p>Argument 1. The holder of municipal bonds issued without authority does not occupy the position of an innocent purchaser.</p> <p>Argument 2. Purchasers of such bonds are presumed to know the law prohibiting their issue and to be violators of it.</p> <p>Argument 3. The receipt of value for them does not create a debt. Whether the identical money paid for them could be recovered of the municipal authorities, quaere.</p> <p>14.--: CONSTITUTIONAL LAW: LIMIT of indebtedness. Where a municipal corporation issues bonds to evidence an indebtedness in excess of the constitutional limit, such bonds are valid to the extent of the authorized issue, and invalid beyond-that extent.</p> <p>15. -:-: taxation. In like manner, a tax levied to pay the principal and interest of municipal bonds is valid so far as it is within the municipal power, and beyond that is invalid.</p>

Proceedings of mandamus to compel the county auditor, Bigelow, to permit plaintiff to redeem from a tax sale, by payment of the amount which appears due upon the face of the tax sale certificate, without the payment of certain subsequent taxes paid by the holder. Defendant, Pattee, is the assignee of the certificate, and paid certain subsequent taxes.

<p>1. Evidence: materiality: damages. In an action for damages for the raising of a dam, whereby it was alleged that the healthfulness of the plaintiff’s property was impaired, evidence showing its comparative healthfulness before and after the act complained of was alone material to the issue.</p> <p>2. Damages: ad quod damnum: mill-dam. A proceeding under section 1201 of the Code, by which the owner of a dam has acquired a license to raise the same, may be pleaded in bar of an action for damages for injuries subsequently arising from the raising of the dam, although the jury allowed no damages in the proceeding under which the license was obtained.</p> <p>3. -: -: —--. For injuries occurring before such proceeding, the owner of the land which suffers the injury is entitled to at least nominal damages.</p> <p>4. -: new trial. An omission to assess nominal damages upon a mere technical right to recover is not ground for granting a new trial, if the recovery of such damages is not necessary for the establishment of . a permanent right.</p>

• Action in chancery to restrain defendants from transferring a negotiable promissory note now in their hands, and to enforce its delivery to plaintiff, in order that it may be canceled. The note was executed by plaintiff to 'defendant, Rónk, and the petition charges that it was given without consideration and obtained by fraudulent representations of the payee. There was a decree of the court granting the relief prayed for. Defendants appeal.

<p>1. Railroads: obstruction op highway: damages. The obstruction of the public highway should not be considered in the estimation of the damages to which the owner of adjacent land is entitled for the appropriation of right of way by a railway company.</p> <p>2.-: -. If a railway company lays its track upon the highway, it becomes bound to the public that the highway shall be put in as 'good repair as it was before, and for a failure to do this it may be indicted.</p>

Action upon a bond given to secure plaintiff against liability upon a certain official bond executed by one ICeefer, as principal, and plaintiff and Owen Syas, sureties, to tlie United States, conditioned that Keefer would faithfully discharge the duties of deputy postmaster at Wilton.

Action to settle and adjust a partnership. By consent of the parties, the cause was referred. Upon the coming in of the report of the referee, the plaintiff moved to set the same aside which motion was overruled, and on motion of the defendant the report was confirmed and j udgment accordingly rendered. The plaintiff appeals and assigns as error the foregoing action of the court. The objections insisted upon by the plaintiff will be noticed in the order made.

The petition alleges tbat tbe plaintiff, John Clark, has been tbe owner and in possession of certain land on the Iowa river since January 1,1868, and tbat in the year 1868 the defendant erected a dam across said river which caused the water to overflow said land. Plaintiff claims damages in the sum of ten thousand dollars.

The petition in substance alleges that in the years 1870, 1871, 1872 and 1873, the defendants operated a railroad called the Chicago & Southwestern Railroad, which was built by the Chicago & Southwestern Railroad Company, and that by reason of defectively constructed cattle guards, cattle, hogs, sheep, horses and domestic animals passed upon plaintiff’s premises and injured his crops and pasture to the extent of $215.

The plaintiff instituted an action by attachment against defendant, Germon, and garnished the Chicago & N. W. E. Co., a judgment debtor of defendant.

<p> Appeal from Black ITawlc Circuit Court. </p> <p>Action at law to recover the amount of money due upon a mortgage. There was a judgment rendered by the Circuit Court, dismissing the cause; from which plaintiff appeals. The facts of the case appear in the opinion.</p> <p>The mortgagee may exercise all his rights at the same time, and pursue' his remedy in equity upon the mortgage and his remedy at law upon the bond or covenant accompanying it concurrently. (4 Kent’s Com., 183.)</p> <p>Where a contract is entered into for a fraudulent or illegal purpose, and any part of such contract remains unexecuted, the law will not compel the contractor to perform his engagement or pay damages for non-performance. (Hellis v. Clark, 20 Wend., 24; s. c., 4 Hill, 424; Grayv. Honk, 4 Comst., 449.) A note transferred before maturity without notice is not subject to equities, while a mortgage, though transferred before maturity and without notice, is still subject to equities in the hands of the holder, and he may have judgment on the note, but be defeated on the mortgage. (Olds.v. Cztmmings, 31 111., 188.) In this case the mortgagee can have only a foreclosure of the mortgage in equity, without a personal liability against the appellee for any deficit. (Elmore v. Higgins, 20 Iowa, 250.)</p>

Action to recover the value of certain personal property which the petition states was owned by the plaintiff, and that the defendants wrongfully took and converted to their use and benefit.

On the 22d day of July, 1874, plaintiff was in the employ of defendant as a brakeman on a freight train. ITe was on the train going north in the discharge of his duties and, while switching at Scarsboro, on defendant’s road, he was struck by the train, thrown under the wheels, which passed over and crushed one of. his arms, and otherwise injured him. His arm was afterward amputated above the elbow and thus rendered useless.

The defendant executed to the plaintiff a contract, in the following words: $1500. West Union, Iowa, July 15th, 1871.

The defendant, Samuel Parks, being the owner of certain lots in the city of Ottumwa, which he was desirous of improving by erecting buildings thereon, and constructing a large cellar extending into the street under the sidewalk, by leave of the city took up the sidewalk, and excavated an area about fifty feet long, eight feet wide and seven feet deep, and walled the same up, but left it uncovered for about two months. .To prevent accidents, however, he erected a barrier at…

On the 21th day of June, 1872, the plaintiff filed in the Warren circuit court a petition claiming the amount of a promissory note, executed by defendant to plaintiff on the 27th day of February, 1866, for the sum of two hundred and fifty dollars, payable four months after date with interest.

'Appeal from Adams District Gourt. Action to foreclose a mortgage given to secure a promissory note made by defendants and payable to plaintiffs. Judgment was rendered for apart of the amount claimed to be due upon the note, but the court refused to foreclose the mortgage, and dismissed the petition, so far as it claimed that relief. Plaintiffs appeal.

Appeal from Muscatine District Court. Defendant was indicted and convicted of the crime of cheating by false pretenses. He appeals to this court.

The plaintiff is the owner of a stone quarry near the track of the Dubuque Southwestern E. E. Co., and the defendant is the owner of a stone quarry on land adjoining the plaintiff’s quarry. The question in the case is as to the right of the plaintiff to use a certain side track, and turns mainly upon the construction of a certain deed from the defendant to the plaintiff.

Action to recover for certain lumber delivered one Griffin by the plaintiffs which it is alleged the defendant agreed to pay for, and also that the defendant, being indebted to Griffin, agreed to pay the amount due plaintiff for the lumber. Jury trial, verdict for the plaintiff, and judgment thereon. Defendant appeals. The county can only be bound by the action of the board, or of a majority in session, or of some person duly authorized by it.

This is a proceeding by quo warranto to test the right of the defendant to hold ■ the office of steward of the poor house of Jones county. The petition avers that on the first day of January, 1875, the defendant was, by appointment of the board of supervisors, steward of the poor house of Jones county at a salary of $700 a year, and that, at the January session, 1875, the board discharged and removed him and appointed as steward one J.. N. Marble.

This is an action of mandamus to compel the defendant, Thomas Vail, who is road supervisor, to remove certain trees standing near tlie center of a highway, which are claimed to be an obstruction to travel. The answer admits that the trees stand near the center o'f the highway, but denies that they are an obstruction to travel. The cause was tried by the court, who found for the defendants, and entered judgment against plaintiff for costs. Plaintiff appeals.

Action to recover the value of three hundred and sixty-one bushels of corn delivered by plaintiff to defendants. There was a verdict and judgment for plaintiff. Defendants appeal. The instrument in suit constitutes a contract of bailment, and parol evidence is not admissible to prove a sale.

The defendant was indicted for a nuisance committed as follows: “The said defendant, at said county of Yan Burén,' on the 15th day of September, 1873, did there and then use, keep, and control a certain stand or booth on the fair ground, at which he then and there sold intoxicating liquor, to the great common nuisance of all the people of said State.” On August 19th, 1874, the defendant entered a plea of not guilty, and filed a motion for a continuance on the ground of the…

This suit was brought by Amos Gates, as guardian of Merritt Potter, to set aside a deed of certain land in Black Hawk county, executed by Potter in 1856, and when he was about fourteen years of age. The grantees in Potter’s deed are the defendants Reynolds Carpenter, Jr., Blackmar E. Brownell, and Andrew P. Carpenter. One Edward Hathaway, who has since died, became an innocent purchaser of said land, and his heirs are made defendants hereto.

Action at law. The petition alleges that plaintiff sold to one Dodson the stock pasture upon the farm cultivated by him in the year 1871, and Dodson sold it to. defendant. The contract under which it was sold required defendant to herd his cattle when turned into the field, so that they would not destroy the corn not gathered. Other allegations of the petition as to the terms of the sale need not be stated, as they are not involved in the point ruled in the opinion.

Plaintiff in this action claims to recover of defendants for wheat sold and for the rent of land. The defendants in their answer set up certain counter-claims and defense to plaintiff’s cause of action. They also show that, being indebted to plaintiff, they conveyed to him certain land for security, which he obligated himself by bond to reconvey upon payment of the indebtedness secured.

Action at law upon an instrument in writing of wbicb the following is a copy: “Indianola, Iowa, June 9,1874.

The petition states that the plaintiff is the owner of certain real estate described in the petition, and that his title is derived from and through a sale of the premises for delinquent taxes, and a conveyance to the parties under whom the plaintiffs claims by the treasurer of the county; that the plaintiff is in the constructive possession of the premises, and has paid all the taxes thereon since the sale.

The plaintiff recovered for a mule alleged to have been killed on the defendant’s track, by reason of the same not being properly fenced. The negligence, if any, consisted in not providing proper fastenings to a gate. The answer denies all negligence, and avers that the plaintiff was negligent in not keeping the gate closed. The railroad runs through the plaintiff’s farm, cutting off about one acre from the south corner. On this acre is a tenant house.

This is an appeal from an order granting a new trial. The plaintiffs brought suit against the defendant on an account for lumber sold and delivered to him. The defendant answered that he paid the plaintiffs on the account $200 in money, and gave them also an order drawn on them in his favor for the sum of $200, which was accepted by them to be applied on the account.

This cause was tried before a justice of the peace upon a claim for damages for the negligent and wrongful killing of plaintiff’s cow .by the defendant’s engine, in the city of Muscatine. The defendant denied the negligence and wrong charged, and claimed that the injury was the result of inevitable accident. Judgment was rendered for the plaintiff for $50 and costs, and the cause was by the defendant appealed to the Circuit Court, where it was tried by a jury.

.Indictment for seduction, verdict of guilty, and judgment thereon. Defendant appeals. The facts are sufficiently stated in the opinion.

Plaintiff alleges that she is, and in the month of January, 1873, was a married woman, and that at that time the defendant, in the presence and hearing of the father and brother of plaintiff, and of three other persons, called ' her a whore. Damages are claimed in the sum of ten thousand dollars.

This is a suit in attachment. The defendant moved to discharge the attachment on the ground that the causes of action alleged in the petition are not founded upon contract, and the petition was not presented to, and the attachment allowed by, any judge of the Supreme, District or Circuit Court. The court overruled the motion, and from the order overruling it the defendants appeal.

. . The plaintiff, as guardian of the infant heirs of Thomas M. Evans, deceased, shows in her petition that said Evans died in August, 1861, seized in fee simple of the southwest quarter of the northeast quarter of section 18, township 93, north of range 7, west of 5th P. M. The said tract was assessed for the tax of 1859 to said Evans, and was also assessed for the same tax to “owner unknown.” In January, 1861, said tract was sold for taxes under the assessment to “owner…

The petition alleges in substance that, in September, 1875j a bridge eighty-four feet in length over the Middle Nodaway River, on a legally laid out public road, fell down, and that plaintiff demanded in writing of the defendants, members of the Board of Supervisors of Adams county, that the bridge be repaired, and fixed the estimate for the same at six hundred dollars; that defendants refused, to make any appropriation for the repair of said bridge; that, the highway and…

Massman, Helmuth & Foestinger, composing the Iowa Journal Company, as co-partners, sent an order to Cottrell & Babcock, of New Jersey, through Fergus & Son, agents, of Chicago, for a printing press,… Held: to account for the value of the press. E. Gr. Wright’s exceptions before the referee, to his findings and conclusions, were continued, by reason of Wright’s bankruptcy.

The plaintiff’s cow was killed by the defendant’s train, at and on a private crossing of the plaintiff, where a lane leading from the public road to the residence of the plaintiff crosses the railroad track. On both sides of the lane, upon the railroad track, are cattle-guards. The lane is a private road on plaintiff’s land, through which he reaches the public road. It is closed at each end by gates, one being at the public road, and the other being at the plaintiff’s house.

In January, 1854, Lewis Jones conveyed about one hundred and twenty acres of land, now situate within the limits of the city of Des Moines, to the defendant'Whitman. His wife, Martha Jones, the plaintiff, joined in the execution of the deed, and in the granting and covenanting clauses thereof, the execution of which was duly acknowledged by both husband and wife, and the acknowledgment was duly certified.

<p>1. Tax Sale: when invalid: selection by treasurer. To constótute a valid sale of lands for delinquent taxes, the lands must he publicly offered as required by statue, and a mere selection of them by the treasurer and marking them “sold,” at the request of an intending purchaser, will not constitute a sale.</p> <p>2. -: assignment OF certieicate. A certificate of purchase at tax sale in the hands of an assignee is chargeable with all the infirmities that would affect it in the possession of the original holder.</p> <p>3. -: WHERE DEED IS SET ASIDE: RECOVERY BY TAX PURCHASER. Where a tax deed is set aside for fraud or other causes, the holder of the tax title may recover from the owner of the land an amount equal to the sum which would have been necessary to discharge the land from taxes, if they had not been paid by the purchaser.</p>

This is an action in equity against Andrew Ersldne and Bernhard Boldt, to foreclose a written contract for the sale of real estate. The answer of defendants, among other things, alleges a failure of title to an undivided one-half of the real estate in question. The case was tried by the court and special findings were made, from which the following state of facts appear: 1.

This action was brought in the Circuit Court of Wapello county to recover for personal injuries sustained by plaintiff, on account of being run over by a locomotive operated upon defendant’s railroad. The petition was filed February 19,1875, and defendant answered thereto, at or prior to the following term of the court held in March..

At the April term, 1873, of the Fremont Circuit Court the plaintiff filed her petition, alleging that she 'is the lawful widow of I. D. Blanchard, deceased; that he died seized of certain lands described, and asking that commissioners be appointed to admeasure her dower therein.

Action to recover on two promissory notes, made for $1,500 each, by defendants to plaintiffs. The defendants set up a failure of consideration, and also a counter-claim of $7,000. The plaintiffs sold to defendants a steamboat for $10,000, of which $7,000 was paid in cash, and the notes in suit were given for the balance. The plaintiffs covenanted that the boat was free from liens. Afterwards it appeared that it was not free from liens at the time of said sale, but one Geo.

Action for specific performance. In May, 1856, Congress granted certain lands to tbe State of Iowa for the purpose of building a railroad from Lyons City, northwesterly, to a point of intersection with, the main line of the Iowa Central Railroad near Maquoketa, thence on said line, and as near as practicable to the 42nd parallel, to the Missouri river. This grant included the odd-numbered sections lying within a certain number of miles of the projected railroad.

M. Adam-son, filed his final report. Thereupon S. N. Lindley, Esq., was appointed referee in the case, and all matters involved therein were submitted to him. After hearing the evidence submitted by the parties,-he filed a report stating the facts found, and his conclusions of law thereon. The evidence was not reported.

The defendant, S. L. Holliday, held the office and' performed the duties of auditor of Madison county for two terms, including the years 1870, 1871, 1872 and 1873.

Moines Circuit Court. On the 22d of April, 1874, the plaintiff filed in the Des Moines Circuit Court a petition, alleging that the city of Burlington is a municipal corporation, organized and operating under a special charter, and stating its corporate limits.

Action to set aside a conveyance of certain real estate made by tbe defendant, H. M. Heinrichs, to his co-defendant, on the ground that the same was fraudulent, and made to hinder and delay his creditors.. The answer admitted the conveyance and alleged that the same was made in good faith and for a sufficient consideration, and denied the alleged fraud and purpose in making the conveyance. Decree for plaintiff, and defendant appeals.

On tbe 17th day of July, A. D. 1873, the plaintiff filed in said circuit court a petition, stating his cause of action as follows: That he was the absolute owner of the real estate described in petition; that no one was in possession of the premises, and charging on information and belief that the defendant makes some claim thereunto adverse to plaintiff, and asking the establishment of his estate in the premises against such claim, and that defendant be forever barred and…

This is an action to recover for personal injuries sustained by-plaintiff as a passenger on defendant’s road. The cause was tried at the August term, 1872, of the Jefferson Circuit Court, and judgment was. rendered for plaintiff for five thousand dollars. At the December term, 1873, of this court, the judgment was reversed, and the cause was remanded for a new trial. ' On the 7th day of April, 1874, the venue was changed to the Keokuk Circuit Court.

■ Appeal from Yam Burén Circuit Court. On the 14th day of May, 1875, the plaintiff filed before a justice of the peace a petition as follows: “Tour petitioner, William Jamison, for the use of the school fund of Van Burén county, Iowa, claims of the above named defendant, Ed. F. Burton, the sum of one hundred dollars, as a penalty for the violation of section 1539 of the Code of Iowa, and for cause of such claim he avers that he is a citizen of Van Burén county, Iowa; that on…

Action in chancery to quiet the title of certain lands held by plaintiff. There was a decree rendered granting the relief prayed for in the petition. Defendants appeal. The facts of the case fully appear in the opinion. A cross bill which consists of direct and positive statements can only be controverted by a general denial of each allegation, or by a specific denial of the particular - allegation the plaintiff wishes to put in issue.

<p>1. Evidence: impeachment: foundation for. When it is sought to lay the foundation for the impeachment'of a witness, the time and place of the alleged statement, and the person to whom it was made; should be given in the question.</p> <p>2. —-■: good character. Testimony is competent to prove the good character of the defendant up to the time the indictment was found; but evidence of 'good character subsequent to that time is incompetent'.</p> <p>3. -: -: nature of the charge. When evidence is admitted touching the general character of the defendant, it ought to relate to the particular charge against him.</p> <p>4. -:--: weight of evidence. Evidence of good character is admissible in all criminal cases, the importance to be attached to it varying with the particular circumstances of each case.</p>

Action of replevin for.a liorse. There was a verdict and judgment for defendant; plaintiff appeals. The facts necessary for an understanding of the points ruled appear in the opinion.

On the 13th day of April, 1867, plaintiff executed to one S. S. Clark his promissory note, and a mortgage on certain real estate to secure the same. In June, 1874, said mortgage was foreclosed, and no appeal taken. On the 1st day of August, 1874, the real estate was sold on execution, on said foreclosure. The sheriff made sale in accordance with the law in force prior to the Code, which was by appraisement, the defendant herein being the purchaser.

In August, 1854, the defendant, the Davenport Gas Light Co., by permission of the City Council of Davenport laid its gas pipes in Brady street between Second and Fourteenth streets in said city. Afterwards, in April, 1871, the plaintiff, the Davenport Central Railway Co., obtained permission of the city council of said city to lay and operate a horse railway upon said Brady street.

Action for the recovery of forty acres of land. Defense in the nature of a cross petition in equity. Decree that defendant is the equitable owner, and plaintiff appeals. .The facts necessary to an understanding of the case appear in the opinion. The United States can only be divested of its right and title to the public lands in the manner prescribed in the acts of Congress and the rules and regulations prescribed by the land department.

The plaintiff filed her petition in the office of a justice of the peace, in substance alléging that the defendant with teams and hands entered upon the premises of plaintiff, and dug and carried away three hundred and twenty loads of gravel, for which defendant agreed to pay whatever it was reasonably worth, and that it was worth ten cents a load, amounting to $32. The defendant answered, denying every allegation of the petition.

Action in chancery to restrain the collection of certain taxes upon lands of the plaintiff, and to declare the same illegal and void. Upon the final hearing of the cause, plaintiff’s petition was dismissed. It now appeals to this court. A judgment rendered by fraud and collusion is a nullity. (Freeman on Judgments, 99,334-5-6; Kerr on Fraud, 293-4.) The neglect of the officers of the county to discharge their duty constitutes a fraud upon the tax-payers.

Action for divorce. The petition states that in 1873 the defendant at various times beat. and ill treated the plaintiff, thereby endangering her life, and in an amendment to the petition plaintiff states that in 1866 and 1867 defendant deserted and refused to provide her proper and sufficient medicine when sick, or clothing and necessaries of life when she was well, and that he knocked her down and beat and bruised her, whereby her life was endangered, and which conduct it…

A/ppeal from Humboldt District Gourt. The plaintiff, Tallman, in these suits, files his petitions in equity to cancel certain tax deeds under which defendants claim title, respectively, to .the land in controversy. The facts in the two cases are substantially the same except as to the land involved.

The record shows that on the 18th day of November, 1872, there was filed in the office of the clerk of the Circuit Court of Johnson county a notice, which is in the following words: “in the circuit court of the state of IOWA, In and for Johnson County. “ ¥m. Hahn & Louisa Hahn, Plff’s, ' ps. ' The Chicago, Omaha & St. Joseph Railroad. -Notice of appeal. “To the Chicago, Omaha “ You will please take notice that we have appealed from the assessment of damages made by the…

Indictment for larceny. A demurrer thereto was filed by the defendant which, coming on to be heard, was overruled, to which ruling he excepted and appeals. A motion is made in this court to dismiss the appeal for the reason that it does not lie from such decision or judgment.

The plaintiffs claim of defendants $300, the amount of an accepted draft paid for their use, and the further sum of $250 advanced to them.

<p>1. Executor: discharge of: liability. Upon, a verbal order of the county judge, the executor was authorized to pay into his hands a,ny sums in his hands belonging to the estate or legatees thereof, and the judge was liable upon his bond for their proper disbursement.</p> <p>2. -: -: verbal order. When the county judge received the money and discharged the executor, the latter could not be held liable to the legatees until the order of discharge was in some manner impeached or set aside.</p>

<p> Appeal from Dubuque Circuit Court. </p> <p>This is an action on a policy of fire insurance. The property insured was a phaeton, and was destroyed by fire while in a carriage shop, having been left there for repairs. It was insured in connection with a horse, harness and buggy, and all described as “ contained in a frame barn situated on the northeast corner of Alley and Eleventh streets, Dubuque, Iowa.” Judgment for plaintiff. Defendant appeals.</p> <p>The risk was restricted to such times as the property insured should be at the place mentioned in the policy. {Annapolis R. Go. v. Baltimore Ins. Co., 32 Md., 37; Ins. Co. v. Throop, 22 Mich., 146; Liebenstien v. JEtna Ins. Co., 45 111., 303; Elnaker v. Franklin Ins. Co., 5 Pa. St., 183.) Defendant’s liability for the property, when away from the premises named, should be limited to such times as it is being used by the assured in the ordinary course of business. {Mills v. Farmers' Ins. Co., 37 Iowa, 400.)</p> <p>The liability of the company was not restricted to the use of the property at the place specified, but extended to the ordinary use of it, when temporarily away from the location mentioned in the policy. (Peterson v. Miss. Valley Ins. Co.,' 24 Iowa, 497; Mills v. Farmer's Ins. Co., 37 Id., 400.) When there is any doubt in the condition restricting the liability of the company, the construction should be adopted most beneficial to the promisee. (Hoffman v. Ins. Co., 32 N. Y., 405.) The finding of the court having the same force as the verdict of a jury, it will not be disturbed if there is any evidence to support it. (Savery v. Sypher, 39 Iowa, 675.)</p>

Action on an official bond executed by defendant Howard, upon assuming tbe duties of treasurer of Keokuk county. His co-defendants executed tbe bond as sureties. Tbe cause was sent to a referee, and, upon tbe coming in of his report, judgment was rendered thereon for defendant. Both parties appeal. The facts of tbe case, so far as they are involved in the points ruled, appear in the opinion:

Action in chancery to subject certain lands in Des Moines county to a judgment held by plaintiff, Smith, against John Pierson, one of the defendants. Held: under that conveyance, in secret trust for the benefit of Pierson. The other creditors of Pierson intervened, uniting in the averments made in Smith’s petition and asking like relief, and were made plaintiffs. Pierson’s wife was joined as a defendant.

Thomas Watson brought .a joint action against the plaintiff, and William Cummings, for malicious prosecution and false imprisonment in the District Court. The action, as to Cummings, was transferred to the Circuit Court, and there was a trial as to plaintiff, which reSulted in a verdict - and judgment for twenty dollars and costs against him, on the 21st day of April, 1873.

The defendant executed to the plaintiff’s father, John Horst, his promissory note payable to his order, and also a mortgage to secure the same. The said John Horst, in order to transfer the note to his daughter, the plaintiff, erased the name John and inserted the name Frances.

The plaintiff, who holds a sheriff’s deed of the defendant’s homestead, brings this action to recover possession. The defendants by cross-petition allege that the deed is invalid, and ask that it be set aside.

Action upon an account for household furniture purchased by defendant from plaintiffs. There was a verdict and judgment for plaintiffs; defendant appeals. The facts of the case involved in the questions of law ruled upon appear in the opinion. An answer in a deposition not responsive to a question may be excluded.

This cause was tried below upon an agreed statement of facts, and is submitted upon the same facts here. There was judgment for the plaintiff and the defendant appeals.

' Action on certain notes given for a reaping and mowing machine.

Action at Law. The petition states that plaintiff contracted verbally witb defendant to negotiate a loan for him to the amount of twelve hundred dollars, the same to be secured by mortgage, which was to be a first lien. The loan was to be for five years and bear ten per cent interest. The plaintiff was to receive fifteen pier cent commission, amounting to $180, which defendant was to p>ay at the time the loan was completed.

Action to recover for personal injuries. The plaintiff was a brakeman on defendant’s road, and was injured by reason of his foot becoming caught in a frog, while attempting to couple cars. The draw-heads of' the cars which he was attempting to couple were not perfectly matched.

Action to recover lands. Plaintiff’s title is based upon a tax sale and deed.

The plaintiffs aver in their petition, in substance, that they are citizens and tax-payers of Jones county, Iowa; that the defendant, B. II.

Action in chancery to quiet the title of certain land described in the petition. There was a decree dismissing plaintiff’s petition; he now appeals to this court. The facts of the case appear in the opinion.

This is an action upon a note for the sum of $200, dated September 1, 1873, payable to C. Aultman, or order, November 1, 1874, at the office of H. T. Helguson, bearing a credit of $20, and the guarantee of payment of H. T. Helguson.

<p> Appeal from Winneshiek Gircioit Gourt. </p> <p>The defendant is a corporation engaged in constructing a railroad. The plaintiff', while acting as employe of defendant, was injured through, the carelessness of a co-employe, and brings this action to recover. At the time of the accident the defendant was using a gravel train in its work of constructing a road-bed. The train had stopped and the plaintiff was shoveling off gravel, when it suddenly started without any signal being given, throwing the plaintiff off, and causing the injury sued for: Judgment for plaintiff. Defendant appeals.</p>

This action was commenced before a justice of the peace and removed by writ of error to the Circuit Court, where the judgment rendered against the plaintiff for a part of the costs, he having recovered in the action, was reversed. Defendant appeals to this court from the judgment of the Circuit Court. The facts of the case appear in the opinion.

The plaintiff filed lier petition in the Louisa Circuit Court, alleging in substance that on the 17th day of June, 1872, she recovered judgment against the defendant in the Pottawattamie District Court, for the sum of $2500 and costs; that afterward defendant agreed to execute to plaintiff his several promissory notes, payable in yearly installments, in the aggregate amounting to the principal of the judgment, in consideration of which plaintiff entered satisfaction of the…

On the 14th day of November, 1871, Sylvester Keeder, the holder of a judgment for the sum of $203.42 and costs against John Murphy, commenced an action to set aside a conveyance of eighty acres of land by John Murphy, to his sister Bridget Murphy, alleging that it was made with the intent oi defrauding, hindering and delaying creditors.

<p> Appeal from Glayton Gireuit Oourt. </p> <p>Action in chancery to cancel certain bonds or contracts entered into by plaintiff's for the conveyance of lands described in the petition, on the ground that the execution of the instrumerits was procured by fraud of defendant, and undue influence exerted by him over plaintiffs. The petition praj^s that defendant be required to account for the rents of the land, and that judgment be rendered therefor as well as for the possession of the property. There was a decree rendered by the Circuit Court granting the relief prayed for in the petition. Defendant appeals. Other facts of the case are stated in the petition.</p>

<p>1. Practice: verdict: evidence. All the evidence in the case must be presented on appeal, or the Supreme Court will not consider the question whether or not the verdict was against the weight of evidence.</p> <p>2. Criminal Law: practice: mistake in name. A mistake in the name of the person injured, in an indictment for robbery, is not material unless it be shown that the party accused has suffered prejudice by reason of the mistake.</p> <p>3. - — : taking op money: pleading. Money may be the subject of larceny and an allegation that money was feloniously taken is sustained by proof that the crime was the taking of -greenbacks.</p> <p>4. - — : robbery: indiscretion. An instruction that “robbery may be committed by force or violence, or by putting in fear * * * and. it is not necessary that the means used to put a party in fear should be such as to put in fear a man used to the ways of the world,” was held to he correct.</p> <p>5. -what constitutes. Thei sudden snatching of a purse . or other property from the hand involves the force and violence sufficient under our statute to constitute robbery.</p> <p>6. Practice: conduct op jury. The fact that a juror, after the jury had retired, sent' for and received a Conklin’s Treatise and read there- ■ from what he stated to be in support of the instructions of the court was held not to vitiate the verdict.</p>

On tbe 29th day of July, 1874, the plaintiff filed a petition as follows: “That John L. Davies, in his lifetime, became a member of and a stockholder in the Davenport Railway Construction Company, a corporation organized for pecuniary profit, under the provisions of Chapter 52, Revision of 1860, and the statutes passed since that time supplemental thereto and amendatory thereof, and was a member of said corporation at the time of his death; and, as appears from a list of the…

Action upon a promissory note made by defendant Smith. Becovery is sought against the other defendant Bairley, upon. a written guaranty for the payment of the note. Bairley by .his answer set up an equitable defense and claimed equitable relief. A demurrer to his answer was sustained, and standing on his pleading a judgment was rendered against him for the,, amount of the note with interest. He alone appeals. The other facts of the case appear in the opinion.

It is alleged in the petition that plaintiffs are the owners of certain land in Pottawattamie county; that said land was conveyed by the United States to the State of Iowa under the Act of Congress of 1850, entitled “An act to enable the State of Arkansas, and other States, to reclaim the Swamp Lands within their limits;” that said land was conveyed by the State of Iowa to said county by virtue of an act of the State Legisla.ture passed in 1853, entitled “An act to dispose…

The petition states that plaintiff and defendant at one time composed a part of the district township of Julien; that the several sub-districts in said district township were in the proper manner formed or created independent districts, the plaintiff and defendant being two of such districts; “that the directors of the district township undertook to make a division of said assets, but the same was illegal, unjust and inequitable, in that the division so made gave to the…

The plaintiff claims one thousand dollars on account of alleged damage done by the domestic animals of defendant to plaintiff’s corn, hay, fall wheat, fruit trees, shrubbery, etc. The answer is a general denial. At the January term, 1874, there was a jury, trial resulting in a verdict and judgment for plaintiff for $70.

The plaintiff alleges that she owns an undivided oi)e-third of certain land described in her petition, and that the defendant owns an undivided two-thirds thereof, and she asks that the same be partitioned. The defendant, for answer, alleges that she owns an undivided five-sixths of the land described, and that the plaintiff owns one-sixth, and defendant asks that the land be partitioned accordingly. The court rendered judgment of partition as claimed by defendant.

Action to recover lands. The answer, besides denying the allegations of the petition, set up certain equitable defenses, and, as upon a cross petition, claimed relief thereon. There' was a decree for defendants quieting the title of the land in them. Plaintiff appeals.

This is an action to recover for injuries sustained by falling through a bridge.

The petition filed July 25th, 1873, in substance alleges that on the 30th day of July. 1870, Catharine Reed executed to George Cook a mortgage on certain described real estate to secure $3,500.00; that the mortgage was foreclosed on the 10th of August, 1872, and Catharine Reed elected to have the property sold subject to redemption; that on the 24th of January, 1873, the land was purchased by Austin Corbin at the sheriff’s sale, in trust for the mortgagee Cook, for the whole…

<p> Appeal from Harrison District Oourt. </p> <p>This is an action for the possession of forty acres of land. The defendant denies the allegations of the petition, and alleges that he is the equitable owner of the premises in virtue of a settlement upon the same, and an improvement thereof for the purpose of homesteading them. Trial by the court, and judgment for plaintiff. Defendant appeals.</p>

It is alleged in the petition that in the year 1860 plaintiff, with the consent of the defendant, built a frame school-house one story high, on land then and now owned by defendant; that it was agreed by the members of the board of directors of said district township and the defendant, that plaintiff should have free use of a sufficient amount of said land for the said school-house to stand upon, and for school-house purposes, so long as the said district township shoiíld “…

Action to recover the value of lumber burned by fire alleged to have been caused by a locomotive operated upon defendant’s railroad. No negligence on the part of defendant’s employes is alleged. The value of the lumber destroyed is averred to be $61,066. There was a verdict for- defendant, which the court set aside on the grounds of misconduct of the defendant. The plaintiff, by the judgment of the court, was required to pay the costs of the first trial.

This is an action in chancery to restrain the collection of taxes levied upon the lands of plaintiffs, to pay for the construction of a ditch intended to drain certain ponds and wet land. The work was authorized and performed, and the taxes levied, by virtue of proceedings had before the supervisors of the proper county, pursuant to Chap. 120, Acts Fourteenth Gen. Ass. Code, §§ 1207-1216. A demurrer to the petition was sustained, and the relief therein prayed for was refused.

The plaintiff sued the defendant before a justice of the peace on a note for $68.98. The defendant interposed a counter claim for $169.25. Judgment was rendered for defendant for $9.89, and costs. Seven days thereafter plaintiff went to the justice for the purpose of taking an appeal, and presented a bond. The justice said the bond was good and that he would approve it, but he failed to mark it approved, and failed to note in his docket that an appeal was taken.

.Appeal from, Iowa Circuit Court. This cause was before this court at a former term and is reported in 39 Iowa, 323.

The plaintiffs claim of the defendant the sum of $476.00, with interest, on an account, a copy of which is attached to the petition. Annexed to said account is an affidavit of Isaac Lessem, made in Adams county, Illinois, and duly sworn to before Wm.

The appellants, John and August Ruppert, were the owners as tenants in common of certain real estate in the county of Johnson, through which the defendant desired to locate its road. To this real estate they held title from a common grantor and by one deed.

The defendant was indicted for tbe larceny of twenty bushels of wheat, of the value of sixteen dollars, the property of one Myers. It was alleged that the wheat was stolen from a granary in the night time. There was a verdict of guilty, and judgment thereon; defendant appeals.

The petition alleges that on the 2d day of August, 1873, the plaintiff and defendant executed and delivered to R. P. Bacon a promissory note for $200; that plaintiff signed said note as surety for defendant; that defendant failed to pay the same, and that plaintiff was compelled to pay it, wherefore he asks judgment against defendant for the amount thereof with interest.

This is an action for specific performance, and is here for trial de novo. On the 22d day of June, 1872, the defendants executed and delivered to the Brownville & Nodaway Valley Railroad Company, the assignor of plaintiffs, a written contract, by which they agreed to convey to said company five acres of land situated in the north-west corner of forty acres owned by the defendants.

The plaintiff owns a certain lot in Onawa, Monona county. The defendant’s track is located across the east end of said lot. The lots east of and adjoining the track are owned by the defendant. There is no evidence as to how defendant acquired them. The defendant gave plaintiff notice of proceedings to condemn her said lot.

The plaintiff states in his • petition, in substance, that he is the owner of certain land in Sec. 17, Town. 88, N. of E. 2, West of 5 P. M.; that a public highway was legally estab-' lished in section 16 in said township, and near plaintiff’s said land; that said highway has never been opened, and has become obstructed by fences; that the public travel which would pass over the said highway, if opened, passes over the plaintiff’s said land; that the defendant is supervisor…

The plaintiff' avers, in substance, that in May, 1864, he borrowed of the defendant $180, to be paid in one year with interest, and to secure the same, conveyed to defendant the land in question; that defendant took possession of the land, and enjoyed the rents and profits until March, 1868, when he sold the said land; that the rental value of said land was $150 per. year.

In 1870, plaintiff and one Win. Bones were partners in a mercantile business in the town of Decorah, Iowa. They dissolved this partnership in 1871, by mutual consent, being indebted to a large amount, amongst which was a balance of $850 and interest on a note executed to Kent National Bank, by Aiken & Jones with Henry Paine -,d C. E. Dickerson, sureties.

The plaintiff filed a petition claiming of defendants, Nelson Miner and Ira Johnson, the sum of $100 with ten per cent interest from January 19th, 1867, on a promissory note purporting to be made by them to Wm. N. Strong, and by said Strong indorsed to plaintiff, before due, and for a valuable consideration.

Action upon a promissory note. There was a trial to the court without a jury and judgment for plaintiff. Defendant appeals.

Action for the recovery of real estate. Plaintiff claims under a tax deed. Defendant claims under a sheriff ’s deed executed in pursuance of a sale upon foreclosure of a mortgage made by the holder of the patent title. The tax sale occurred after the execution of the mortgage, and was. void, as the evidence shows, by reason of a fraudulent combination between the purchaser and other bidders. The answer sets up the fraudulent combination.

In 1871, the city council of Oskaloosa passed an ordinance providing that any one desiring to sell wine or beer within the city limits should first procure a license from the mayor; and further providing that if any person procuring such license “shall sell or give * * * any wine or beer to any person on the Sabbath day, or to any minor, or to any intoxicated person at any time, * * * such acts shall operate as a forfeiture of the license of the person so violating the…

This is a proceeding wherein Chas. Eisdon was garnisheed in execution, on a judgment of plaintiffs against Merritt Eisdon and Daniel Eisdon. Issue was taken by the plaintiffs upon the answer of the garnishee; a jury was waived and there was trial by the court, and judgment against the garnishee, from which he appeals. The facts necessary to an un.dsrstanding of the case appear in the opinion.

Appeal from Floyd Dist/ict Court. The defendant'was convicted and sentenced for manslaughter, and now appeals to this court.

The petition alleges that by ordinance the city of Dubucjue granted to plaintiffs “ the exclusive privilege and franchise of running for hire omnibuses for the purpose of conveying persons, passengers and travelers, and their baggage upon the •streets of the city to and from the hotels, steamboat landings and railroad stations,” on condition that they should furnish necessary and suitable vehicles, for the conveyance of travelers and citizens to any part of the city at all…

Action to recover under the statute double the value of a cow killed by a train of cars upon defendant’s road at a point where it was not fenced, and where defendant had the right to fence. The cause was submitted to the court without a jury, and upon a finding of facts judgment was rendered for plaintiff in double, the value of the animal killed. Defendant appeals. The cause has before been in this court. See 39 Iowa, 663.

The petition alleges in substance that, in March, 18TO, plaintiffs purchased from W. D. Freeman certain land in Poweshiek county; that Freeman had been in possession of said land with title or under color of title for several years, and had iu good faith made improvements to the value of $1,000; that at the time of plaintiffs’ purchase an action of right for said land was pending, wherein defendant herein was claiming said land as against said Freeman; that plaintiffs had no…

Action in chancery to enjoin the sale of a certain tract of land and a granary erected thereon, upon an execution issued on a judgment to foreclose a mechanics’ lien in favor of defendant, Brockett. A temporary injunction was allowed, which, upon the final hearing, was dissolved, and certain relief prayed for by Brockett in a cross bill was given by the decree. Plaintiffs appeal. The facts of the case appear in the opinion.

Action for divorce. The petition states the cause of action as follows:, “1. On the 7th day of February, 1874, plaintiff filed a petition alleging a marriage of himself to defendant, in Boone county, Iowa, on May 25th, 1870. “2.

K. Ware against W. D. Freeman, asking that a new trial be granted, and that plaintiffs, as the owners of the land in controversy, be permitted to redeem. The defendant’s demurrer to the petition was sustained. On appeal to this court the judgment was affirmed. See 37 Iowa, S05. On the 22d day of September, 1874, the plaintiffs commenced this action, asking the same relief as that before sought.

Afgeal from Allamakee Circuit Court. The plaintiffs allege that they are the owners and entitled to the immedite possession of a certain organ, and they claim of defendant the sum of $150 for the alleged conversion thereof. The defendant answers as follows: “1.

• The petition in substance alleges that one Caroline M. Cocliran was pregnant with a bastard child, and that she and the defendant conspired and confederated together to charge upon petitioner the crime of bastardy and seduction perpetrated upon the said Caroline, she being an unmarried woman; and that in pursuance of said conspiracy the said Caroline, by the procurement, and at the instance of defendant did, on the 11th day of February, 1874, commence an action and…

In May, 18T3, plaintiff shipped five car loads of cattle and hogs upon defendants railroad to be transported to Chicago. He alleges, in his petition in this case, that they were so carelessly carried and with such great delay that injury was done the animals, whereby plaintiff suffered loss; for the recovery thereof this action is brought. There was a verdict and judgment for plaintiff. Defendant appeals.

Plaintiff’s petition was filed July 14th, 1874, in which it is alleged that his mother died in 1840, and his father about the year 1844. The further material allegations of the petition are in substance as follows: In the year 1845 Ansel Humphreys was, by the Probate Court of Whiteside Co., 111., appointed guardian of plaintiff’s estate. Prior to the year 1850 said guardian received and collected some seven hundred dollars of the estate of plaintiff.

In 1865 the plaintiff entered into a contract with the defendants’ intestate, Thomas Devin, to work for him about his house and premises as a “ man of all work” for $9.90 per week. The plaintiff continued in the service of said Devin under said contract for the period of about eight years, and until said Devin’s death.

Action on a written contract, whereby defendant directed the plaintiffs to ship him a reaper, and for which he agreed to pay upon the terms and conditions alleged therein.

Action to recover damages caused by defendant selling to the husband of plaintiff intoxicating liquors. Jury trial; verdict and judgment for plaintiff and defendant appeals.

The plaintiff being the owner of certain land in Jones county, conveyed the same to the defendants, Le Roy 0. Wilkins and S. C. Wilkins, as security for money advanced and to be advanced by said defendants, and applied in payment of certain mortgages and tax liens upon the property. No part of the money so loaned came into the hands of the plaintiff, but a part of it was paid out directly by defendants in discharge of liens, and a part was retained by them.

On the 2d day of September, 1869, the defendant was the owner of one hundred and sixty acres of land in Oerro Gordo county, and one Simeon E. Essex was the owner of certain lands in the State of Illinois. An agreement for exchange was made, and defendant at the request .of Essex conveyed the Oerro Gordo county land to Dorinda Essex, wife of said S. E. Essex.

The plaintiff claims that he owns the northwest quarter of southwest quarter of section 7, township 74, range 8, and alleges that defendants make some claim thereto, and asks that his title be quieted. The defendants, the heirs of Seeley, allege that their ancestor derived title to the land in question from H. & W. Scofield, by deed of warranty, February 6, 1875, and that the Scofields derived title from Washington county.

This action was commenced against defendant and eight others, under section 1557 of the Code, to recover damages for selling intoxicating liquors to plaintiff’s liusband_ when lie was intoxicated, and when he was sober, thus causing him to become intemperate and drunken, and injuring her in her property and means of support.

Appeal from Howard District Goxirt. This is an action in equity». It was tried below by the first method. Decree for defendant. Plaintiff appeals.

The plaintiff alleges that she is the wife of Michael Kearney, that the defendant sold said Michael intoxicating liquors, of which he drank, and whereby he became intoxicated; that because of such intoxication he spent his time in idleness, and failed to render plaintiff a support; that when so intoxicated he spent thirty-five dollars of the moneys of plaintiff, and destroyed her property, and injured her person. Plaintiff claims $8,000 damages.

The petition is as follows: Plaintiff claims of the defendant, * * * and states that on the 20th day.of September, 1872, the defendant, * * * in consideration of the sum of $123 cash premium paid bi’ defendant, issued and delivered to plaintiff a policy of insurance, No. 26951, on one frame barn, $3,000; live stock, $700; and farming implements, $300, for five years from said date; by which the defendant understood and agreed to insure plaintiff against all loss which…

The plaintiff alleges that she owns lot No. 248 in the city of Dubuque, and that on the 1st day of January, 1874, she had no moneys or credits subject to taxation in said city; that the county of Dubuque through its officers, in the year 1874, assessed said lot at the valuation of $2,500, and levied a tax thereon of $56.25; and also assessed plaintiff with the sum of $7,200 for moneys and credits, and levied a tax thereon of $163.13; that about the 20th day of January,…

Appeal from Buchanan District Court. The defendant was convicted and sentenced for larceny and now appeals to this court.

The defendant, as constable, holding an execution in favor of one Caldwell against Chaney, levied the same upon the property in question as the property of said Chaney. The defendant, holding a chattel mortgage upon the property, brought this action to. recover possession thereof. The defendant averred in his answer and proved upon the trial that no notice of plaintiff’s ownership of the property was served upon him, as required by Sec. 3055 of Code. Judgment for defendant.

The plaintiff, who is the holder of the patent title to the land in question, brought suit in equity to set aside as fraudulent certain tax deeds which the defendant held to said land. The defendant in his answer denied the fraud, and prayed that the plaintiff be adjudged to have no interest in the property and that his own title be confirmed and established, and for general relief.

The plaintiff, being a private banker, was assessed for the year 1875 by the assessor of the town of Marengo in the sum of $4,000, on account of moneys and credits. The board of equalization, being the town council, increased this assessment to $10,000. Plaintiff appealed to the Circuit Court, and on an agreed statement of facts the actiou of the board • of equalization was reversed, and the amount fixed as made by the assessor originally. Defendant appeals

Action to recover damages caused by the neglect and refusal of the defendant to provide a causeway or other adequate means of crossing the road of defendant where the same crosses the farm of the plaintiff.

This is an action on account for goods sold. The verification to the petition being defective, a motion to strike the answer from the files for want of verification was overruled. Plaintiffs took leave to amend the petition, and on the 25th day of October, 1875, an amendment was filed consisting of an affidavit of verification made by one of the plaintiffs to the suit.

The plaintiff recovered a judgment against defendant, Jennie E. Felt, for the value of a piano purchased by her husband for and used by the family of defendant. It was held that the purchase of the piano was a family expense, and that defendant was liable therefor under Code, § 2211. This judgment was affirmed in this court; see 11 Iowa, 588.

This action is brought to recover of the defendant for malpractice. The petition avers in substance that the plaintiff employed the defendant as a physician and surgeon to treat his wife, who was about to be delivered of a child, and that in consequence of the unskillfulness and negligence of the defendant, the plaintiff has been put to great expense, and has lost the services and society of his wife.

On the 20th day of July, 1874. the qualified electors of the city of Burlington voted to abandon their special charter and organize under the general law, and thereupon the mayor issued his proclamation for an election of officers to be held on March 1st, 1875, being the time fixed by the law under which the electors of the city had voted to re-incorporate, for the regular annual election.

<p> Appeal from Van Burén Circuit Cov/i't. </p> <p>Action to foreclose, a mortgage. There was a decree for plaintiff. Defendants appeal.</p>

<p>1. Instruction: when not pertinent to evidence. It is erroneous to give to the jury instructions which are not applicable to the evidence, even though they may he abstractly correct.</p> <p>2. Railroads: private crossing. The conduct of a land-owner, through whose property a railway passes, in forcibly opening the gates at a crossing which has been closed by the company, sufficiently indicates his requirement that the company should comply with the provisions of the Revision, section 1329.</p> <p>3. -:-: negligence. Where a railway company has provided a private crossing and supplied the necessary gates, it is held only to the exercise of reasonable care to keep them closed; and it is not responsible for an injury sustained by a third party, which is occasioned by the negligence of him for whose benefit the crossing is provided.</p>

Appeal from, Harrison Cvrcuit Court. Action for seducing plaintiff’s wife. There was a trial by jury, and judgment for plaintiff. Defendant appeals.

Appeal from Buchanan District Court. The defendant' was convicted and sentenced for keeping a house of ill fame, and he now appeals to this court.

This cause was submitted to the court' below upon the following agreed statement of facts: “ That said T. J. Rhyno now is, and for many years has been, a resident and citizen of South township, Madison county, Iowa, and that said South township was his place of residence in January, 1874; that for many years .said T. J. Rhyno has been engaged in the business of stock feeding in Madison county, Iowa; that in the fall of 1873 said T. J. Rhyno got together, for the purpose of…

Action at law. The petition alleges that the plaintiff is the owner of a certain lot in the town of Eldon upon which he erected valuable buildings for a dwelling and business purposes, which, since their construction, have been occupied by him as a homestead and a store house for the sale of general merchandise and the transaction of other business.

The plaintiff claims double the value of six head of horses killed by engine and cars on defendant’s road, in consequence of the alleged failure of defendant to erect and maintain a sufficient fenee. There was a jury trial and, under the instructions of the court, a verdict for the defendant. The plaintiff appeals.

The Independent School District of West Point, plaintiff and appellant, avers.in its petition that it obtained judgment against the defendant, and one Charles Peters and others, on which an execution issued and was returned: “no property found of defendant’s.” Afterward plaintiff brought a suit in equity against the said Charles Peters and others, for the purpose of subjecting to the payment of said judgment certain land to wlucli it was averred that said Charles Peters…

Action for the recovery of compensation as swamp land agent under an oral contract with the defendant. There was trial by jury, verdict and judgment for the plaintiff, and the defendant appeals. The facts necessary to an understanding of the case appear in the opinion.

The plaintiff claims of defendant a balance due of one hundred and thirty dollars, on a written contract for furnish- • ing brick, and digging and walling two cellars.

<p>1. Practice: bill of exceptions. Where the certificate of the judge shows the rulings made during the trial, and states that the same were duly excepted to, such certificate is a sufficient compliance with the statute respecting bills of exceptions.</p> <p>2. Evidence: criminal law: confession. While a witness is not. bound to criminate himself, yet if he shall voluntarily testify to any matter tending to criminate,' he may be compelled to testify in respect to that matter concerning all that is material to the issue.</p> <p>S. -: -: rule applied. A witness stated that the defendant had admitted to him, in the presence of several others, his guilt of the crime of which he stood charged: Held, that he might be compelled to give the names of the others present at the time the confession was made.</p>

The petition alleges that Hattie L. Shaw, aged twelve years, is illegally restrained of her liberty by the defendant, and prays the writ, of habeas corpus to the end that said Hattie L. Shaw may be discharged from her illegal detention, and that petitioner may be awarded her custody and control. Upon, the hearing the judge dismissed tlxe sxxit, and ordered that the custody of said child remain with Theodore Nachtwey and his wife. The plaintiff appeals.

<p> Appeal from Howard Circuit Court. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p> Appeal from Boone Circuit Court. </p> <p>Tiie petition alleged, in substance, that on tbe 3rd clay of January, 1872, the plaintiff was in tbe employment of tbe defendant as a brakeman, and that, by reason of such employment, it became bis duty to couple and uncouple cars upon tbe trains on which he was employed, subject to tbe orders of tbe conductor.</p> <p>That at Moingona, pursuant to tbe orders of tbe conductor, be proceeded to couple tbe way car of tbe train to a locomotive engine.</p> <p>That tbe draw-bars and draft irons of tbe way car were out of repair, unsafe, and unfit for use, tbe draw-bars and draft irons were broken and too short, and the springs were broken and weak; the head of the draw-bars or bumpers were worn off, and were altogether unfit for use, of all of which defendants had notice.</p> <p>That by reason of these defects the draw-bar slid back under the car when the locomotive touched it, and the usual space intervening between cars when beingcoupled was greatly reduced, and plaintiff, without fault or negligence on his part, was crushed and permanently injured. Plaintiff demands judgment for the sum of $15,000.</p> <p>The answer denies all the allegations of the petition, and alleges that plaintiff’s injuries were received because of his own carelessness and negligence.</p> <p>There was a jury trial and verdict and judgment for plaintiff for $11,000. 'The defendant appeals.</p> <p>An expert may testify and express an opinion in regard to the conduct of the person injured, and how far it was according to the rules of careful and prudent management. The manner of making couplings of cars and how it ought to be done, is not within the range of common observation and experience. (1 Redf. R’ys, pp. 552-3-4; Sauers v. Duke, 8 Minn., 23; Lamoure v. Garyl, 4 Denio, 370.) Knowledge of the defect or insufficiency must be brought home to the owner or proof that he was negligently ignorant of the same. ( Wright v. JR.- Y. G. R. R., 25 N. Y., 562.) The jury were not at liberty to determine, under the testimony, whether the owner might not have known the defective condition if he had used reasonable care; but they were restricted to determining whether he had actual and positive knowledge thereof. {Green-leaf v. Ill. Gen. R. Go., 20 Iowa, 14.) Negligence is the want of the exercise of ordinary care, such as is usually exercised in the like circumstances by the majority of the community. (Shearman and Redf. on Neg. § 20.) If the plaintiff was only required to perform an ordinary service, not different from his ordinary occupation and was not directed to do it in an unusual manner, lie cannot avail himself of the plea that he was acting under the orders of his superior. (Davis v. JR. B. Co., 20 Mich., 105.) If a servant knows that the materials with which he works are defective and continues his work without objection, and without being induced by his master to believe that a change will be made, he is deemed to have assumed the risk of such defects. (Kroy v. G., B. I. As P. B. Co., 32 Iowa, 357.) If he continues to use the dangerous machinery after a reasonable time is given the master to cure the defect, he does so at his peril. (Shearm. and Redf. on Neg., § 94.) The verdict is excessive. (III. Cen. B. Co. v. Welch, 52 111., 183.)</p> <p>One who employs servants in a complex and dangerous business ought to prescribe rules for its safe management, and failing to do so is personally liable. (S. & R. on Neg., § 93; Vose v. Lcmcashire B. Co., 2 Hurlát. & N., 728.) The employes of defendant, such as brakemeu, were not competent to testify as experts. (1 Greenl. on Ev., § 440; Whitmore v Bowman, 4 G. Greene, 118,; State v. Vincent, 24 Iowa, 570.) If there are circumstances calculated to throw defendant off his guard, then negligence is a question for the jury. (Arts v. G., B. I. A P. B. Co., 34 Iowa, 161.) The verdict is not excessive. (Sherman v. Western Stage Co., 24 Iowa, 542.) In determining whether or not damages are excessive, it must be considered whether the verdict was the result of passion or prejudice. (Code, § 2837.) In a ease of simple personal injury from negligence, the damages should be such as would compensate the injured party for loss of time, medical and other expenses, physical pain, mental distress and disability. (Peoria Bridge Ass. v. Lorreis, 20 Ind., 235; Hunt v. Hoyt, 20 111., 544; JMorse v: Aiiburn A S. B. B., 10 Barb., 621; Keyes v. Devlin, 3 É. D. Smith, 518; West v. Forrest, 22 Mo., 344.) If the injury be permanent, compensation should be given, for future as well as present disability. (Frink v. Shroyer, 18 111., 418; State v. Bink, 18 111., ,527; Tiler v. Ffew York, 49 N. Y., 42; Ballou v. Farmer, Allen, 73; Caldwell v. Murphy, 1 Kern., 416.) There can be no fixed rule of compensation for the pain and anguish of body and mind, nor for the loss of time in business, or permanent injury to health and body. {III. Gen. It. It. v. Bannon, 5 Wall., 90.) The amount of damages is a matter entrusted to the sound discretion of the jury. {Tauth v. Keyle, 11 Grattan, 697; 2 Redf. on R’ys, 222-3.)</p>