Volume 45 — Iowa Reports

The charging part of the indictment against defendant is in these words: “The said James Haydén, on or about the 10th day of March, 1875, at or about the hour of one o’clock in the night of the same day, with force and arms in the county aforesaid, one store building of Beckman Bros, there situated, wherein valuable merchandise was kept for sale and store, viz: pocket knives, razors and revolvers, of the value of $100, feloniously and burglariously did break and enter into,…

Plaintiff filed in the Circuit Court a claim against the estate of which defendant is executor, based upon an account for personal services rendered by her to the deceased in his lifetime. The defendant denied the claim, and the issue joined tlaereon was submitted to a jury, and a verdict and judgment had for defendant. Plaintiff appeals.

Appeal from, Pottawattaonie District Court. The defendant was indicted, tried and convicted for obtaining money under false pretenses, and he appeals.

The plaintiff alleges in his petition that he is the owner in fee of certain lands in Davis county; that defendants, a corporation using and operating a railroad in said county, have entered upon, and constructed and are operating their railway over, said land for the distance of three-fourths of a mile, without having obtained from plaintiff the right of way over said land; that plaintiff took the proper legal steps to have his damages assessed, and the commissioners duly…

Action for damages for personal injuries. The facts are stated in the opinion. Judgment for plaintiff for $3,000. Defendant appeals.

N. P. Sunderland filed a petition in the Circuit Court of Des Moines county, setting forth, in substance, that he and one-R. C. Kendall were partners and as such owned the property in controversy; that said partnership was largely indebted, and said Kendall having died his heirs were made parties; and the prayer of the petition was that the real estate in controversy be charged with the payment of tbe partnership debts'; that a receiver be appointed and the property sold.

The plaintiffs bring this action to quiet their title to a certain forty acres of land, which they claim as their homestead. The court rendered a decree for plaintiffs. The defendants appeal. The material facts are stated in the opinion.

The plaintiff claims in this action to recover her dower interest in certain lands. Her husband in 1861 died seized of the real estate in controversy, and the petition alleges that her dower therein has not been assigned, and she has not relinquished her rights thereto. Other matters set up in the petition need not be stated.

■ Action in chancery to enforce the specific performance of a contract to convey lands. Upon a hearing on the merits there was a decree for plaintiff. Defendant ITaskell alone1 appeals. The facts of the case appear in the opinion.

This is an action to recover damages on account of alleged slanderous words spoken by defendant, in effect imputing to plaintiff the crimes of larceny and adultery. The first count of the petition alleges no special damages.

Sub-district No. 7 of Yan Burén township, in said county, was formed under the law existing and in force that now ■constitutes § 1797 of the Code, and was composed of contiguous territory situate in both Yan Burén and German townships. Such sub-district afterward became the independent district of Fairview, tlie plaintiff in this action.

The petition states that plaintiff is a minor and unmarried, and that he performed work and labor for the defendant, and that his services were reasonably worth $180, for which amount he asks judgment.

The plaintiff sues as the assignee of the McGregor Western Railroad Company, and alleges that the defendant, by its deed dated January 12, 1867, conveyed to said company certain claims and rights then held and owned by defendant against the United States, for swamp lands previously sold by the United States, within said county of Howard; that by said deed of conveyance the said company became the owners of this cash indemnity against the United States, for the purpose of…

On the 8th day of April, 1870, Gabriel É. Snyder sold and conveyed to E. M. Wimer certain real estate for the sum of §4,000, all of which was paid at the time of making the deed, except the sum of $1,150, which was to be paid in two years from that date. No note, mortgage nor any kind of writing whatever was executed for the unpaid purchase money.

The plaintiff filed in the Pottawattamie District Court his petition, claiming of George Doughty, sheriff, the immediate possession of thirty-seven head of cattle, amongst which were three cows, each branded with. “Ivins” on horn, and letter “J” on hip, and alleging that defendant holds the same in virtue of the levy of an execution thereon as the property of one 'William M. McMahon.

: The plaintiff’s intestate, Her Husband, Michael Campbell, was in the employ of the defendant as a section Hand on its railroad, and while so in its employ was fatally injured by being run over by a Hand car.

This action is brought to recover upon an instrument which, is in the following words: “$25.00. “Elkport, Iowa, September 25, 1871. “In consideration of the benefit which I expect to derive from the construction of the Chicago, Dubuque & Minnesota Railroad, I promise to pay said company twenty-five dollars, as soon as said road shall be built, and the cars running thereon, to within one mile of Elkport post office, and a depot located and built within same distance, provided…

Action brought on an injunction bond to recover damages sustained by the plaintiff by reason of the unlawful issuing of the injunction. The averments in the petition were controverted by the answer. The bond was conditioned to pay all damages sustained by plaintiffs 'by reason of the wrongful issuance of the injunction.

This cause was tried in the court below without a jury. The court made special findings of fact to which no exceptions were taken. There was a judgment for plaintiff, and defendant appeals, claiming that the conclusion of law based upon the facts found is erroneous.

Action in chancery to restrain the city of Burlington from selling a lot owned by plaintiff, upon an assessment made thereon for macadamizing’ an adjacent street.

This is an action upon a life insurance policy, insuring tlie life of Jacob Butler, plaintiff’s deceased husband. The petition, which is in the usual form, alleges that the insurance was effected in 1864, that all premiums were paid up to the time of the death of said Butler, which occurred in 1874.

This is a civil action by ordinary proceedings, brought for the purpose of testing the right of defendant to hold and exercise the duties of the office of mayor of the town of Avoca. There was a trial to the court, a finding in favor of defendant, judgment, and plaintiff appeals.

Tots is an action brought upon a promissory note made by appellants, and payable to Edsal Roup or bearer. It is alleged in the petition that the payee transferred said note before maturity, and that it is now the property of plaintiffs in their official capacity as executors of the estate of John Williams, deceased.

■ In March, 1874, there was a re-organization of school districts, and a portion of the territory theretofore forming a part of the defendant was attached to and became a part of the plaintiff, and this action is brought for the purpose of obtaining a division of the assets. The cause was referred, and upon the coming in of the report the court rendered judgment thereon, and the defendant appeals.

<p>1. Promissory ITote: when held as collateral: indorsement. Where a promissory note had been transferred by indorsement as collateral security, and then, before maturity, with the knowledge of the indorsee, the payee had sold it to a third party, into whose possession it did not come until after maturity, held that the latter acquired it free from equities, and occupied the position of a good faith indorsee before maturity.</p> <p>2. Contract: sale of good will. A contract for the sale of the good will of a business does not bind the vendor to abandon his trade or occupation, and he may serve as an employe of one who is engaged in the same land of business in the same place.</p>

Action to recover real estate. Both parties claim title; the plaintiff under a tax sale and treasurer’s deed and the defendant under the patentee. To the petition an abstract of the title was attached, which showed that the United States had by patent granted and conveyed the premises to one Anderson, and that defendant acquired the title thus vested in Anderson on the 31st day of January, 1867.

Action in chancery to set aside a tax sale and deed made thereon, on the ground of fraud, to quiet plaintiff’s title to the lands described in the deed, and to recover possession of the property. The cause was submitted, upon, an agreed statement of facts, to the court and a decree was rendered dismissing plaintiff’s petition. He now appeals to this court. The facts of the case appear in the opinion.

The plaintiff, for the use of the school fund, claims of the defendant, S. J. McBride, the sum of two thousand dollars, on account of various alleged sales of intoxicating liquors to a minor, and to persons in the habit of becoming intoxicated, during the year 18To. ■No personal judgment is asked against the defendant, McGavern, but it is alleged that during the time of the sales he owned the building in which the sales were made, and he is made a party for the purpose of…

The Eirst National Bank of Davenport, Iowa, recovered judgment against tlie Davenport & St. Paul Railroad Company, and the Davenport Railway Construction Company, for tbe sum of $15,934.77 and costs. On tbe 3d day of December, 1874, executions were issued on tbis judgment, and, on tbe same day, J. S. Conner, among others, was garnished personally, and as treasurer of tbe Davenport & St. Paul Railroad Company.

• Action to foreclosé a mortgage. The plaintiff claims to recover, in addition to the amount due on the promissory note which is secured by the mortgage, the sum of $56.20 paid by him for taxes levied upon the real estate covered by the incumbrance. The petition shows that the mortgagor was, at the time of the execution of the mortgage, a non-resident of the State, and continued to be to the time of his death.

The plaintiff alleges: 1. That the cattle of defendants broke into plaintiff’s premises, inclosed with a lawful fence, and damaged his crops to the extent of one hundred dollars. 2. That the defendant’s cattle, being unlawfully on plaintiff’s premises, broke into the adjoining field of one D. W. Rowe, inclosed with a lawful fence, and damaged his crops to the extent of one hundred and fifty dollars; and that Rowe duly assigned his claim to plaintiff.

The petition, in substance, alleges that on the 16th day of February, 1876, plaintiff contracted with defendant, by parol, to purchase of him seventeen head of fat cattle, then on the • defendant’s farm in Washington county, for the sum of five hundred dollars; that defendant was to drive the cattle to the town of Washington and deliver them to the plaintiff; that he failed to drive the cattle to the place agreed upon, and hy writing notified plaintiff that he would not…

Appeal from, Fremont District Court. The defendant was indicted and convicted for obstructing a highway, and from thé judgment appeals to this court.

The plaintiff, who is sole devisee and legatee therein, and named as executor, filed a will of A. S. Ross for probate in the Circuit Court of Allamakee county. The defendants resisted the probate of the will on the ground that at the time of its execution the decedent was not of sound mind, and upon a trial of the cause to the court it was so found, and a judgment accordingly was entered. Plaintiff appeals.

Action upon a bond conditioned for the appearance of one Ole Evenson to answer a criminal charge. The facts are sufficiently stated in the opinion.

Tnis cause is submitted upon an agreed statement of facts, as follows: “ That Merrick G-.

Action in equity to set aside the vacation of a street and to enjoin defendants from obstructing the same. The facts are stated in the opinion. Decree for plaintiff; defendants appeal.

The appellants and proponents are legatees under the will of Bernard Slaven, and filed the will in the Circuit Court, and asked tbat it be admitted to probate. Tbe appellees and contestants, claiming to be heirs at law of said Slaven,- appeared and objected to tbe probate, alleging tbat at the. time of tbe execution of tbe will said Slaven was of-unsound mind, and incapable of making a will, and tbat tbe same was made and obtained through duress and undue influence.

<p>1. Practice: pleading: demurrer. Where leave has been granted for an extension of time in which to file an answer, it is within the discretion of the court to permit a demurrer to be filed, and the action of the court will not be reversed unless ft be shown that there was prejudicial error in the ruling.</p> <p>2. Administrator: authority over real estate. Unless the personalty is insufficient for the payment of debts, the administrator has nothing to do with the realty, which descends to the heirs at law.</p>

Action in equity to recover for certain taxes, with penalty and interest, paid by plaintiff on land in Warren county while he held a tax deed to the land. The patent title was held by one John M. Laverty, the defendant’s testate. After the recording of the tax deed, Laverty held possession of the land for. more than five years, and having died his executors obtained a decree canceling the deed.

The plaintiffs aver in their petition, in substance, that on or about the 10th day of June, 1874, one J. A. Derbins ordered of the plaintiffs a bill of goods amounting to the sum of $209.70, on 60 days’ time; that plaintiffs refused to sell or deliver said goods to said Derbins, on time, unless the said Derbins would get some one to guarantee their payment; that to induce plaintiffs to sell and deliver said goods to said Derbins, the defendant; M. M. Moulton, on the 17th day…

<p> Appeal from Winneshick Circuit Court. </p> <p>Action at law originally brought in the 'mayor’s court of the city of Decorah upon a bond executed by defendants upon the city issuing to the principal in the bond a license to sell ale, beer and wine. Defendants appealed from the judgment of the mayor to the Circuit Court, and from another judgment there they appeal to this Court. Other facts of the case appear in the opinion.</p>

The plaintiff’s petition in substance alleges: 1. That plaintiff is a duly organized corporation. 2. That defendant is a duly organized political corporation. 3. That the Executive Council of the State of Iowa assessed plaintiff’s property for the year 1873, the total valuation in Osceola county being $44,750. . 4.

A written contract is attached to the petition as an exhibit. It is in these words: “ Messrs. Murphy, Neal & Co., Helena, j Murphy, Higgins & Co., Deer Lodge. ) “ Cents: We will transport and deliver all merchandise shipped by you to Montana, at the following rates from St. Louis: (6) six cents per pound to Helena and Deer Lodge. You hereby agree to ship all freight controlled by you during the season by railroad.

These two causes are submitted oh the same abstract and argument. In the second action the plaintiff seeks to recover of the defendant certain wharfage dues paid under protest, and tliQ issues in this action are like those presented in the other, except such as grow out of the right to recover back the money so paid.

Action to foreclose a mortgage upon premises owned by the defendant, Durbon. The defendants, N. J. Wolcott & Co. and 0. R. Davis, hold mechanic’s liens on the premises. Prior to the time of the commencement of the wort and the furnishing of the materials for which the mechanic’s liens are claimed, July, 1874, the premises were owned by the plaintiffs.

Action upon a promissory note against the defendants as joint makers. Default was entered against the defendant, Payne, for want of a defense.

<p> Appeal from Lee and Des Moines District Courts. </p> <p>These are actions by the respective plaintiffs to recover charges for wharfage claimed to be due each under ordinances of the several cities providing therefor. The several petitions allege that defendant is indebted to the respective - plaintiffs by reason of its boats landing at and using the wharves of each. The pleadings in each case being different, their substance must be separately set out. In the first case the petition alleges that the city of Keokuk is empowered by its charter to establish and regulate wharves and to fix the rates of wharfage for all boats landing or moored at such wharves; that at great expense it erected wharves upon the river within its limits and expended large sums in making additions thereto and keeping them in repáir; that in order to raise money for such.outlays, the city issued wharf bonds, which were negotiated, and to meet the interest and principal thereof, the city, by ordinance, fixed a wharfage fee to be paid by each boat or vessel using the wharves; that the boats of defendant landed at the wharves so constructed and improved by the city and there received and discharged freight and passengers. The petition seeks to recover wharfage under the city ordinance to the amount -of the fees prescribed therein. The other pleadings in the case are set out in the abstract, upon which the case is submitted, in the following language:</p> <p>“ Defendants answered, admitting the city of Keokuk was a municipal corporation under a special charter; that defendant was a corporation organized under the laws of Missouri, and was engaged in navigating the Mississippi river with steamboats.- They admit defendants landed their boats at Keokuk; admit that the wharfage was charged under the city ordinances of Keokuk; admit defendants have refused to pay such wharfage, and they set up and make part of their answer sections 1, 2, 3 and 4 of the city ordinances relating to the collection of wharfage by the city, as follows:</p> <p> “ ‘Be it ordained by the City Council of the City of Keohuk: </p> <p>Section 1. That all the ground now lying or which shall be made hereafter, between Water street, in said city of Keokuk, and the middle of the main - channel of the Mississippi river, throughout the entire length of said city, is hereby declared a wharf and subject to be used for such purposes, and under such terms as are or may be prescribed by ordinance.</p> <p>“£Sec. 2. That the whole of Water street, as well as the land described in the foregoing section, is hereby declared open for the use and purposes of a wharf, and subject to all the rules and regulations prescribed by ordinance fpr the government and regulation of the wharves of the city of Keokuk, and all boats, rafts and water craft of every description whatever, that are moored to or landed at any part of Water street, and the persons owning, claiming and having charge of the same, shall be subject to the same rules, regulations, wharfage and penalties as are provided by this ordinance in relation to boats, rafts and other water craft landing or mooring at the wharf as defined by the third section of this ordinance: Provided, Nothing contained in this section shall be construed to interfere with the use of Water street as a public street.</p> <p>£££Seo. 3. That any steamboat which shal'I make fast to any part of said wharf or Water street, or to any vessel or other thing at or upon said wharf or street, or shall receive or discharge any passengers or freight thereon, or shall use any of said wharf or street for the purpose of discharging, receiving or landing any freight or passenger, shall, if the tonnage of said boat be less than fifty tons, be liable to a wharfage fe,e of one dollar; if the tonnage of said boat be less than one hundred tons and more than fifty tons, the same shall be liable to a wharfage fee of one dollar and fifty cents; all boats of one hundred tons and less than two hundred tons shall be liable to a wharfage fee of two dollars; all boats of two hundred tons and less than three hundred tons, shall pay a wharfage fee of three dollars; all boats of three hundred tons and less than four hundred tons shall pay a wharfage fee of four dollars; and all boats of four hundred tons and upwards, the sum of five dollars; and all boats that shall remain at said wharf or street over two and less than five days, shall pay a wharfage fee of one dollar and fifty cents for each day after the first two days; and should said boat remain at said wharf or street over five days, said boat shall be liable to a wharfage fee of one dollar per day for every day it may remain at said wharf or street over five days. Provided, That the city council may fix by resolution the sum to be paid as wharfage by boats plying regularly between the city of Warsaw, Alexandria or Nauvoo — said wharfage fees to be paid by the owner, captain, clerk, mate or agents of said boats to the wharf-master or his deputy: provided, further, that boats engaged onty in towing rafts, and only land at the wharf for the purchase of fuel or stores for its own use, shall be exempt from wharfage.</p> <p>“ ‘ Sec. 4. That all crafts usually known and denominated barges, canal boats or keel boats, used in the carrying trade, whether in tow or otherwise, landing at the wharf of the city, shall be charged wharfage in accordance with their tonnage or carrying capacity, the same rates as are charged steamboats.’</p> <p>“Defendants, for further answer, show that the boats named in the petition were each of more than twenty tons burden; were engaged in navigating the Mississippi river from St. Louis, Missouri, to St. Paul, Minnesota; engaged in commerce between the States of Minnesota, Iowa, Wisconsin, Illinois and Missouri, and landed at Keokuk, one of its regular ports; and while so employed, and during the time set out in the petition, were duly licensed and enrolled for the coasting trade under the acts of Congress for the regulation of commerce. That the ordinance under which plaintiff claims wharfage was and is illegal and void and in violation of the Constitution and laws of the United States, and such wharfage tax is illegal and plaintiff has no right to recover same from defendant.</p> <p>“To this answer plaintiff demurred, because section 3 of the ordinance 59, under which plaintiff claims, is not illegal and does not conflict with the provisions of the Constitution of the United States or the laws of Congress.”</p> <p>The demurrer was sustained by the court, and the defendant standing on its answer, judgment was rendered for plaintiff.</p> <p>2: In the second case the petition in proper form claims to recover wharfage under an ordinance therein pleaded, containing the following provisions:</p> <p>“1. Be it ordained by the city council of Ft. Madison, that all the ground lying along the_ Mississippi river within the corporate limits of the city of Ft. Madison, and known as public ground, is declared to be a wharf or landing, subject to be used for such purposes only under such regulations, and upon such terms as are hereinafter prescribed.</p> <p>“ 2. Any steamboat which shall land or make fast at any part of the wharf or landing, or to any vessel or other thing, at or upon the wharf or landing, or shall receive or discharge any passenger or freight thereat, shall be liable and shall j>ay to the city wharfmaster a fee of one dollar for each landing, or day or part of a day it shall lay at the landing or wharf.</p> <p>“ 7. By this section it is provided that any steamboat or other boat or raft landing for the purpose of purchasing supplies only, and remaining only while purchasing and taking on such, and neither discharging or taking on any passenger or freight, shall not be required to pay wharfage fees.”</p> <p>The other pleadings and proceedings in the case are set out in the abstract, upon which the case is presentéd to this court, as follows:</p> <p>“ To the petition the defendant answered, admitting the city was a corporation under the general laws of Iowa for municipal purposes, admitting defendant was a corporation duly organized under the laws of Missouri, engaged in navigating the Mississippi river; admitting their boats landed at the port of Ft. Madison, one of its regular ports in navigating said river, as set out in the exhibit; admitting the wharfage fees were charged under the ordinances of Ft. Madison; denying plaintiff’s right to levy or assess such wharfage fees, and der fendants allege that the boats set out in sueb exhibit were each of more than twenty tons burden, and that they were each employed in navigating the Mississippi river from St. Louis, Missouri, to St. Paul, Minnesota, engaged in commerce between the states of Minnesota, Iowa, Wisconsin, Illinois and Missouri, and so landed at Ft. Madison, one of its regular ports, and that while so employed, and during the time shown by said exhibit, they each were duly enrolled and licensed for the coasting trade, under and by virtue of the laws of the United States, and in conformity with the several Acts of Congress, passed for the regulation of commerce and navigation; that the ordinance under which plaintiff claims wharfage was and is illegal and void, and is in violation of the Constitution and laws of the United States, and that the wharfage tax is illegal and void, and plaintiff has no right to recover same from defendant. And for further answer defendant alleged that the city of Ft. Madison had not built any wharf for the accommodation of boats' landing at the city of Ft. Madison; that they have in places, paved the street to the river, used by the citizens generally for all purposes of a street, for ferry landing, for pulling lumber from rafts', and that the street so paved by the city has been used by this defendant for a landing place, they having generally landed at the place- designated by the wharfmaster of plaintiff, which was at the part of the street which had been paved by the city of Ft. Madison; that the river front of Ft. Madison, within its corporate limits, lying along the Mississippi river, is about two miles, being paved in these places in all about 600 feet only.”</p> <p>To this answer plaintiffs demurred because—</p> <p>“1. The answer as a whole shows upon its face no defense in law, or as to the facts against plaintiffs’ right to recover, and the same is insufficient in law.</p> <p>“2. For that if defendants are engaged in commerce, it is no defense to their being charged by plaintiff as in petition claimed.</p> <p>“3. And because in law said ordinances of plaintiff are legal and binding on defendant.”</p> <p>The demurrer was sustained, and, defendant standing on its answer, judgment was rendered for plaintiff.</p> <p>3’. In the third case the petition, in addition to other allegations, avers “that plaintiff is the owner of, and at great expense has paved and otherwise improved a certain wharf within its limits, for the purpose of creating and securing to steamboats landing at said city a convenient and secure wharf or landing place”; “that * * * defendant</p> <p>landed at said wharf with its steamboats,” stating the name of the boats and the number of landings, and the charges therefor, and “ that under the law of Iowa it is authorized to construct and regulate wharves, and to fix the fee or wharfage for landing thereat,” and in pursuance of said authority the city passed the following ordinance providing for wharfage and fixing the rate of the same:</p> <p>“Section 1. Be it ordained by the city council of the city of Burlington, that steamboats, lceel boats, flat boats, and other water craft landing at, anchoring in front of, or within 100 feet of, any public landing belonging to or which may hereafter become the property of the city, or making fast to any part thereof, or to any vessel or other thing at or upon said wharf, or shall receive or discharge any passengers or freight, shall pay to the city at the rates following, for each and every such landing:</p> <p>“All vessels and water craft under 100 tons at custom house measure........................;........$1 00</p> <p>“All vessels and water craft over 100 tons, but under 200 tons......... 2 00</p> <p>“All vessels over 200 tons.......................... 3 00</p> <p>“Each and every barge which shall be detached from any vessel or water craft and left at any wharf in this</p> <p>city........................................... 1 00</p> <p>“Flat boats and other craft running without regular license, and whose tonnage has not been certified........... 50</p> <p>“And each and every vessel or water craft above specified shall pay a second like and corresponding amount for every twenty-four hours it remains at said wharf or landing after its first twenty-four hours; said sum of money to be paid by the owner, captain, agent, or person in charge thereof, to the wharfmaster. ■ This section shall have no application to the regular ferries of the city; providing no skiff, canoe or sail boat shall be included in the above.</p> <p>“ Section 11. All that part of the city abutting on the Mississippi river and lying between the sidewalks on Front street and said river is hereby declared the public landing of said city.</p> <p> “Be it ordamed by the Oity Oormeil of the Oity of Burlington: </p> <p>“ Section 2. That it shall be the duty of the Harbor Master to collect from all steamboats, boats, rafts, and other water craft, such rates of wharfage as is hereinafter specified, or may be hereafter enacted, and to keep a true account of the same and to pay the amount and make a full statement thereof to the city treasurer, once in each month. He shall assign places for all steamboats, rafts and water craft, and for all freight landed, and shall possess all requisite authority to cause the same to be removed to the places so assigned. Provided, That no boat or water craft shall be compelled to leave any place while discharging or receiving freight, unless a landing at such place shall be prohibited by ordinance, or another' landing shall have been previously designated by the Harbor Master.</p> <p>“ Section 4. There shall be collected wharfage from each steamboat which shall land, anchor at, or make fast in front of and within one hundred feet from the public landings aforesaid, the sum of ($2.00) two dollars: Provided, That more than one landing within -the term of twenty-four hours from the time of arrival and before departure for another port shall not subject any boat to additional wharfage; and from any steamboat remaining at the landing for a time exceeding twenty-four hours there shall be collected wharfage at one-half the above rate for each day of twenty-four hours during which said boat shall so remain after .the day of her arrival.</p> <p>“ Section 5. That for the purpose of wharfage for all other boats and water craft the entire frontage of the city shall be deemed the levee (except snch part as is heretofore excepted), and all boats and water craft landing at or anchoring or making fast within one hundred feet on such frontage (not including skiffs), shall pay the city therefor the following amounts: All rafts, irrespective of size, shall pay fifty cents per day for each landing day of twenty-four hours duration so landing. All barges'shall pay fifty cents pter day for each day or landing so made. All flat, wood or trading boats shall pay fifty cents for each landing or day so made.</p> <p>“Section 9. All that part of the city abutting on the Mississippi river, and lying between the sidewalks on Front street and said river, is hereby declared the public landing of said city.”</p> <p>The second count of defendant’s answer to plaintiff’s petition is in the following words:</p> <p>“ 2. And by way of further answer they allege they were a corporation, duly organized under the laws of the State of Missouri. That all of the boats named in the petition are boats of more than twenty tons burden, and were navigating the Mississippi river, engaged in commerce between the States of Minnesota, Iowa, Wisconsin, Illinois and Missouri, carrying freight and passengers, and were each duly licensed and enrolled for the coasting trade under and by virtue of the laws of the United States and in conformity to the several acts of Congress passed for the regulation of commerce and navigation; that the ordinances under which the same were levied were and are void and illegal and in conflict with the Constitution and laws of the United States, and plaintiff has no right to recover the same from defendant.”</p> <p>To this' count of the answer plain tiff ■ demurred, on the ground that it presented no defense in law to plaintiff’s claim. The demurrer was sustained, and defendant standing on its answer judgment was rendered against it. '</p> <p>Judgments having been entered against the defendant in the several cases, it appeals in each.</p>

This is an action for damages for a personal injury. There was trial by jury, verdict and judgment for plaintiff, and defendant appeals.

The defendant’s intestate died jn Cook county, 111., and letters of administration were issued there upon his estate. He left property, however, in Linn county, Iowa, to the arqonnt of about $6,000, and letters of administration were issued there.

The petition of plaintiff alleges that he entered into a verbal agreement with defendant to take, drive and train his .horse during the seasons of 1875 and 1876, in consideration of which defendant agreed to furnish plaintiff with money to the extent of five hundred dollars, to enable him to enter said horse at county fairs and other races during said seasons, and to pay all actual disbursements necessary in traveling with said horse, including shoeing, keeping and other…

' It is alleged in the petition that plaintiff recovered two judgments against the defendant, John H. Riskamire, one in October, 1874, and the other in April, 1875, and that the whole of the first judgment, and a part of the second is unpaid; that said defendant was and for a long time had been the owner in fee of 80 acres of land in Benton county, and on the 17th day of September, 1874, he conveyed said land to his co-defendant, Sarah J. Riskamire, who is, and then was, his…

The defendant was indicted and convicted of grand larceny, and sentenced to the penitentiary for two years and four months. From this judgment he now prosecutes his appeal.

Action at law in which plaintiff seeks to recover the sum of $860, on seven promissory notes.

Replevin for a team of horses. The plaintiff claims title to the property as widow of William II. Becker, deceased, wlio, as she alleges, owned it at the time of his death exempt from debt. The administrator of the estate set apart the property to plaintiff. The defendants, in a joint answer, allege that at the death of William II. Becker the title of the team was in defendant, John Becker, who afterward transferred it to defendant, Salmon, now the owner of the property.

Plaintiee brought this action at law, seeking to recover a . tract of land described in his petition upon the claim of holding the fee simple title thereto.

Action to recover for personal injuries. On the 21st day of October, 1874, at about eleven o’clock at night, one of the defendant’s freight trains ran off of the track at Comstock Station and was wrecked. The accident was caused by the switch being thrown back and locked on the side track, whereby a break was left in the main line.. The plaintiff, who was employed upon the train as fireman, received severe injuries. Trial by jury. Yerdict for plaintiff. Defendant appeals.

<p> Appeal from Allamakee District Court. </p> <p>The defendant was tried before a justice of the peace, upon an information charging him with the crime of assault and battery, and was convicted. Tie appealed to the District Court, where the cause was tried before a jury, and he was again convicted.</p> <p>The defendant was fined in the sum of ten dollars, and judgment was entered against him therefor, and for the costs of the prosecution. Defendant appeals.</p>

This is an equitable proceeding in which tbe plaintiffs seek to set aside a certain tax sale of tbeir real property, and to bave tbe deeds made in pursuance of snob sale declared void, because of tbe existence of certain matters stated in tbe petition. Tbe answer admitted certain allegations in tbe petition, denied others, and alleged certain facts in avoidance of others. Tbe District Court found for tbe plaintiffs and rendered judgment accordingly. Defendant appeals.

This action is based on the following account: “Washington County, Dr. “To II. Cushman: 1875, May 4.

The plaintiffs aver in their petition in substance that on the 8th day of December, 1873, an order was made by the county auditor establishing a certain county road, as follows, to-wit: Beginning 20 ch. w. of the ne. corner of section 31, thence 10 ch. to margin of slough, thence in a semi-circle on the n. margin of said slough until it intersects Davenport road, thence following said Davenport road until it intersects section line between sections 30 and 31, thence w. along…

This action was commenced to recover an alleged balance of $5,000 which it was claimed was due tbe plaintiff^ for the failure of defendant to pay over and account for certain money which came into his hands as clerk of the District and Circuit Courts.

■ These cases, are submitted together as involving the same question of law. The plaintiffs respectively purchased certain lots in the city of Keokuk at tax sale for State and county taxes, and received respectively the county. treasurer’s deed therefor. At the time of said sale there were delinquent city taxes for several years due on said lots.

This action was commenced before a justice of the peace; the pleadings were oral. ' The plaintiff and one Carpenter were owners of adjoining farms; the plaintiff purchased of Carpenter a strip of land 2 rods wide and 128 rods long for the purpose of a road, and as a part of the'consideration therefor agreed to build and keep up a certain portion of the fence along the lane on the west side.

The petition in substance alleges that on the 13th day of April, 1870, the plaintiff acquired title to, and has since that time owned, lots Nos. 5 and 6, situated upon the corner of what was formerly known as Kossuth street and Liberty street, in West Oskaloosa; that said street was dedicated to the public by John White, who laid out said lands into lots; that, upon the faith of the permanent use and occupancy, of said streets as public ways, buildings were erected on said…

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

Action of replevin to recover possession of a song-book said to be worth one dollar and twenty-five cents, and to recover twenty dollars as damagés for the wrongful detention of the song-book. The action was brought before a justice of the peace. A writ of replevin was issued and served; the book was taken by the officer and delivered to the plaintiff.

This action was commenced October 21, 1872. The plaintiff’s petition alleged that about the month of January, 1858, Patrick Pendergast departed this life, intestate, without issue, leaving surviving him his widow, Bridget Pendergast, and the plaintiff, his sister, and sole surviving heir;'that at the time of his death he owned the north-east quarter and the northwest quarter of the south-east quarter of section one, township eighty-nine, range one west; that plaintiff…

This is an equitable action triable anew in this court. The petition alleges, in substance, that plaintiffs are the owners of eighty acres of land by virtue of a written contract with the Burlington & Missouri River Railroad Company; that said contract of purchase was taken in the name of the defendant, Robert Miller, who is the brother of plaintiffs; that plaintiffs have paid on the contract the sum of $275, and have held possession of said land since August, 1873, and that…

The petition states that plaintiff had commenced suit by attachment in the Circuit Court against the defendants, upon a note not due until January, 1877; that certain timber growing on land described in petition had been attached; that defendants are insolvent and are engaged in cutting down and carrying away said timber, and an injunction is prayed, which being granted, the defendants moved to dissolve the same, and such motion being overruled they appeal.

Action at law upon a judgment rendered in the Court of Common Pleas of Carroll county, Ohio, November 16, 1850. A demurrer to the petition of plaintff was sustained and judgment rendered thereon for defendant. Plaintiff appeals.

<p>1. Contract: subsequent promise: consideration. If one leases land to which there is no road to another party, hut subsequently promises to procure one, the fact that without the road the lessee would not be able to pay his rent does not constitute a sufficient consideration for the promise.</p> <p>2. -: -: disadvantage to promisee. While disadvantage accruing to the promisee may constitute a sufficient consideration for a promise, yet it must appear that the disadvantage was suffered at the request of the promisor, express or implied.</p> <p>3. Landlord and Tenant: means oe access. Whoever tabes a lease of land must ascertain at his peril whether or not the land is accessible, and the landlord is guilty of no fraud if he fail to apprise the tenant that there is no road communicating with the premises.</p>

The notice of assignment was published first the 28th day of January, 1876. Notice was mailed to each creditor the 29th day of January, 1876. . J. G. Abell filed a claim May 22d, 1876, and moved for an'order that he be paid a pro rata share. Other creditors who had filed claims within three months from the date of first publication resisted said Abell’s motion on the ground that his claim was filed more than three months after the date of first publication.

Action in equity. The case is presented to this court upon an agreed abstract containing the evidence, being mostly an agreed statement of the facts, and the decree of the District Court. No part of the proceedings is given. The decree granted the relief prayed for by plaintiff. Defendant appeals.

The plaintiff filed a claim against tbe estate of which defendants are the administrators, for work and labor performed for the intestate in his lifetime. The administrators refusing to allow any part of the claim, an issue was joined thereon and the cause was tried to the court without a jury. A judgment was rendered for plaintiff upon a finding of facts by the court. Defendants appeal.

The plaintiff alleges tbat on the 30th day of June, 1871, he purchased from defendant certain real estate for the consideration of $2,300, and that defendant executed and delivered to plaintiff a general warranty deed for the premises, and covenánts that, they were free from incumbrance; that there was a mortgage on the premises in favor of Ida Bradford, given on the 31st day of December, 1870, for $1,090, with interest at ten per cent; that -the mortgage was foreclosed at…

The petition states that the defendants, in the firm name of Schrubbe & Bro., executed and delivered to plaintiff a certain agreement in writing which admitted the execution of certain indebtedness from the firm to the plaintiff. The defendants answered separately. One of them denied the execution of the agreement, and alleged the same was executed by the other defendant after the dissolution of the partnership.

The plaintiff sues the defendants as guarantors of a promissory note for $500, executed by the Linn County Agricultural Society, payable to Ledyard & Yeomans or bearer. The answer admits the execution of the note and guaranty, and sets up several matters which, defendants claim, discharge them from their undertaking. There was a jury trial, resulting in a verdict and judgment for plaintiff for $525 and costs. The defendants appeal.

On the 29th day of October, 1875, the plaintiff filed her petition, alleging, in substance, that in 1854 she became the wife of Henry G. Douglass, who, in the year 1858, became the owner of a certain eighty acres of real estate, which he and his family, until his death, in 1863, occupied as a homestead,, but such homestead ivas never platted and recorded; that the defendants, Anna L. and Joseph W. Douglass, are children of plaintiff and Henry 0.

The defendant conveyed to the plaintiff certain real estate, with the' usual and ordinary covenants, and this action is brought thereon, the breach alleged being that the land was incumbered with the right of way to a certain railroad com.pany.

The defendant was indicted for -the crime of an “assault with an intent to commit' murder,” and was convicted o.f an ■“ assault with intent to commit the crime of manslaughter,” and thereon was sentenced to a term of imprisonment in the penitentiary. He appealed to this court.

This action was brought to recover of the defendant, Ruan, as county auditor, and of his sureties, for rents collected and belonging to the county, for costs paid him in road cases, for overdrawing his salary, for money received' by him of the clerk of the District Court as the amount of a school fund judgment, and for copies of the Code received by him and not accounted for. , The District Court found that the defendants were liable for the sum of $302.92 for rents…

Action to cancel a deed on the ground that the same was obtained by fraud. The facts are stated in the opinion. Decree for plaintiff. Defendant appeals.

On the 4th day of August, 1874, the plaintiff filed its petition in the Circuit Court of Pottawattamie county, praying that the defendant be restrained and enjoined from transporting, delivering and receiving, to and from the Union Pacific Railroad Company, any passengers, freight or express matter at any other point than at the terminus of the defendant’s railroad within the city of Council Bluffs, and also, “from making any transfer of freight, passengers and express…

Action on a policy of insurance against fire. Performance of all the duties and conditions to be performed by the assured was averred, “exceptas to the prepayment of the premium,' and other conditions, the performance of which was waived by the defendant.” The answer consisted of a denial, and several affirmative defenses were set up, which presented, for determination the matters referred to in the opinion. There was a trial by jury.

Action in equity to set aside a deed. The plaintiff, George Dunbar, and his wife, Margaret Dunbar, executed the deed in question to their son-in-law, John .Stickler. The consideration expressed in the deed is $10,000.

The defendant was-indicted, tried, convicted and sentenced, for an assault with intent to commit a rape upon the person of, one Mina Shepard. Defendant appeals.

The district township of Oompetine was reorganized into independent school districts, plaintiff and defendant being among the number of independent districts thus created. Upon a division of assets and liabilities made by the directors of the district township, as provided by law (Code, Secs. 1715, 1820), the defendant was required to pay to plaintiff’ the sum of 0100, in order .to adjust, equitably, the rights of the respective new organizations.

The plaintiffs allege tbat in December, 1874, they commenced an action in tbe Clinton Circuit Court against G. H. Parkinson to recover $295.67, and caused a writ of attachment to issue and to be levied upon the property of said Parkinson; that on the 18th day of December, 1874, the defendant, J. Id. Walliker, sheriff of Clinton county, in virtue of said writ of attachment levied upon twenty-six boxes of goods, as the property of Geo.

The plaintiffs, voters of Delaware county, petitioned the board of supervisors to submit to the electors of the county the question of the relocation of the county seat, whether it should be removed from Delhi to Manchester. Proof of the genuineness of the signatures and the qualifications of the signers accompanied the petition.

Ti-ie petition states that in August, 1874, the defendant recovered judgment against the plaintiff for $166, and that said judgment is void for want of jurisdiction; that no notice of the pendency of the action was ever served on plaintiff, nor was there an authorized appearance in said action for him; that E. W. Curry, the attorney who claims to have appeared, in said action for plaintiff, is insolvent and. was so at the time of his appearance; and that said judgment was…

' The petition, in substance, sets forth that the plaintiff is the owner of part of a certain mineral lot in the corporate limits of the city of Dubuque; that a legally established street passes through said premises running along the bank of the Mississippi river, under the bluff, and said street is the only way by which plaintiff’s said premises can be approached; that the city of Dubuque granted to the defendant, the Chicago, Dubuque & Minnesota Eailroad Company, the…

Appeal from ~Warren District Court. The defendant was indicted, tried and convicted, for an assault with intent to murder, and he appeals.

Appeal from Hardin District Court. Indictment for larceny. Trial by jury, verdict of guilty and judgment, from which defendant appeals.

It is claimed by the plaintiff that the defendant permitted snow and ice to accumulate on the steps and platform at its station house in Monticello, whereby the same became dangerous, and that plaintiff slipped and fell therefrom, whereby she was greatly injured. There was a jury trial. Yerdict and judgment for the plaintiff. Defendant appeals.

Indictment for seduction. There was trial, verdict of guilty, and a motion for a new trial filed when the verdict was rendered. The motion was overruled and judgment pronounced sentencing the defendant to the penitentiary. Erom the action of the court in the premises the defendant appealed.

Action to set aside a tax- deed. This cause was fir^t tried iu the District Court in 1872, and the plaintiff’s petition was dismissed. On appeal to this court the judgment of the District Court was reversed and the case remanded. On motion in the District Court a decree was rendered setting aside the deed as prayed in the petition. From the decree the defendant appeals.

At the November Term, 1874, of the Greene District Court the defendant was indicted for the larceny of a double set of harness, the property of Joshua Payne, on the night of the 27th day of April,. 1874, from the stable of said Payne, in Greene county. The defendant pleaded not guilty, and upon his motion the cause was continued. At the April Term, 1875, the cause was tried, and the jury disagreed.

The plaintiff avers in bis petition, in substance, that he is .the owner of the mining right on what is known as the Level Eange through mineral lot 268, in Julien township, Dubuque county, Iowa, and has the exclusive right to work on said range, and dig and. take away mineral from the same; that the defendants never had any right to work on said range, except along and in the cap rock; and the said right to work in the cap rock they abandoned, and for more than six months…

The indictment charged “that the defendant, at Davis county, Iowa, on the first day of February, 1875, did then and there keep, use, and control a certain house in which he then and there unlawfully kept for sale, and did then and there unlawfully sell, intoxicating liquors.” There was a jury trial, verdict of guilty and judgment, from which defendant appeals.

<p>1. Will: limited devise: remainder,. Where a will devised a certain sum with the condition that it should be invested in real estate, the income of which should be enjoyed by the devisee during life with. ■ remainder to the heirs of her body, and the executor in accordance therewith conveyed to the devisee certain lands by a deed which recited the provisions of the will respecting the devise, held, that the devisee possessed only a conditional estate in the lands and could not convey them to a third party to the exclusion of her heirs.</p> <p>2. -: conveyance: practice. While an action to set aside a conveyance by the devisee would properly be brought in the name of the heirs, yet in an action therefor by their guardian, where they are minors, the court has the power to protect them interests and defeat the alienation of the property.</p> <p>3. -:--:--. But the action cannot be maintained in behalf of the “minor heirs” of the deceased devisee, when the will of the ancestor provided that the estate should vest in the ‘ ‘ heirs of her body. ”</p> <p>4. -:--: pleading. In an equitable action thus improperly commenced, advantage may be taken of the error by a general demurrer, even though the demurrer be not in the precise language of the Code, the intention of the pleader to assail the defect being apparent.</p>

The plaintiff, as administrator of the estate of Patrick Deeney, deceased, claims of the defendants the amount of a promissory note executed by the defendants, for the sum of $281.80, payable to Charles O’Neil or order, and alleges that Patrick Deeney in his lifetime purchased the note, and it was transferred to him by delivery and assignment without indorsement.

This is an action in equity to set aside a sheriff’s deed for lot 4 in block 15, in tbe town of Decorah, to the defendant, John Finn, and for a decree directing the sheriff to execute a •’deed for said premises to the plaintiff. The parties agreed that certain portions of the pleadings were true^ and submitted the case upon the petition, answer, reply and their stipulation.

Action in chancery to recover certain land and quiet the title thereof in plaintiff. The defendants claim title under a tax sale and deed.

■ This is a suit in equity brought by plaintiff to settle and quiet his title to one hundred and twenty acres of land.

This is an action of replevin for one span of bay horses and other property, the possession of which plaintiff claims under a chattel mortgage executed.to him by one Frank Robinson.

The petition of plaintiff alleges that Erank Quinton, a minor son of and residing with the defendant, with defendant’s knowledge, consent, - approval and direction came on plaintiff’s land, where his two sons aged thirteen and fifteen were engaged with two teams in harrowing, and wantonly, wrongfully and maliciously, twice fired a shot gun at plaintifi’s dog, near the teams, killing the dog and frightening the horses, causing one of the teams, consisting of two. three year…

Action to recover the possession of certain land. The defendants, in their answer, deny generally every allegation of the petition, and, averring that they have had actual adverse possession of the land for more than ten years, they plead the statute of limitation in bar of the action. They also plead an equitable defense, which is set out in the opinion. The cause was tried to the court-without a jury, and judgment had for plaintiffs; defendants appeal.

The petition contains the following averments: The plaintiff is the owner of a judgment against the district township of Spencer, in Olay county, which judgment was obtained against the school house fund of said district. On 27th day of February, 1875, the school board of said township issued to the plaintiff its order upon the treasurer of said district directing him to pay said judgment from the school house judgment fund. The said order was not paid for want of funds.

One Elizabeth Dewees filed a complaint against the defendant, charging him with being the father by her of an illegitimate child. On the trial she testified that the defendant was the father of the child, and that she called on him for assistance and he gave her $25. The defendant testified that he never had sexual connection with her. He admitted that he paid her $25, but he said he obtained it for her, at her request, from a friend of hers.

. On the 29th day of September, 1871, I). G. Rawson & Co. delivered to the defendant at Worcester, Mass., for shipment, six cases of hoots consigned to the plaintiffs at Oedar Rapids, Iowa. A hill of lading, or shipping contract, was delivered by the agent of defendant to Rawson. & Oo., of which the following is a copy: ' . Merchants’ Despatch Transportation Company.

The plaintiff is a resident property owner and taxpayer of Lee township, Polk'county, Iowa. The defendant, Lowry, is treasurer of said Polk county. On the 23d of September, 1871, an election was held in said Lee township for the purpose of voting upon the question as to whether a tax of two per cent should be levied upon the taxable property of the township to aid in the construction of the Des Moines & Minnesota Railroad.

The petition states that the defendant, Wagner, is county auditor, and the other defendants are members of the board of supervisors, township clerk, and supervisor of highways; that a petition was presented to the board of supervisors asking the establishment of a highway of the width of forty feet; that a commissioner was appointed to view and report upon the expediency of said highway, who made a report recommending the establishment of the same in accordance with the…

The defendant was indicted for the murder of John W. Bold, was tried, convicted of murder in the second degree, and sentenced to the penitentiary for twelve years. Tie appeals. The material facts appear in the opinion.

The defendant, D. B. Aines, formed a • co-partnership with one Lawson for the manufacture and sale of boots and shoes, which co-partnership continued for a few months. While it was in existence the defendant, D. B. Ames, executed to his wife, the defendant, Marion Ames, a mortgage upon the firm stock to secure an individual debt due from him to her. The plaintiffs are creditors of the firm. The defendant, Marion Ames, has taken possession of the stock under the mortgage.

The petition states that the plaintiff, William Lawson, on the 3d day of May, 1875, and the defendant, D. B. Ames, entered into partnership in the business of manufacturing, purchasing and selling boots and shoes; that Ames was to contribute five hundred dollars to the capital stock, and both partners were to devote their time and attention to the business, the profits of which were to be divided equally and the losses borne in the same proportion; that the business was…

Action for damages for killing plaintiff’s colt. The petition contains two counts.. In the first it is averred, in substance, that the colt was killed at Luana station, throúgh the gross and wanton negligence of the defendant, and that the plaintiff was damaged thereby in, the sum- of three hundred dollars.

Action for a divorce. Upon motion of .plaintiff the cause was sent to a referee. The record shows that the defendant objected to the order of reference, but the order itself recites that it was made upon the agreement of the parties. It also recites that exception was taken thereto by defendant. Objection to the reference and denial of the referee’s jurisdiction * were renewed before him, and to the court upon the filing of the report.

This action is for the partition of a grist mill. It is alleged that plaintiffs are the owners of the undivided one-half of the property, and that the defendant is the owner of the other undivided one-half. There is an abstract of title exhibited with the petition, which shows.that there is a mortgage executed by plaintiffs upon said property which is unsatisfied, and that there is a judgment lien as against defendant, and also a mechanics’ lien, and certain delinquent taxes.

Action to foreclose a mortgage securing a promissory note. The makers of the note and others claiming an interest in the land were made parties. The court rendered a general judgment against the makers of' the note, and entered a decree canceling and setting aside the mortgage. Plaintiff appeals. Other facts of the case appear in the opinion.

The defendant was indicted and tried for the crime of nuisance, in keeping 'and controlling a certain house at which he kept for sale, and did sell, intoxicating liquor. The evidence tended to show that the defendant kept a drug-store, and at such drug-store sold for medicinal purposes, but without a permit, intoxicating liquor.

The plaintiff is supervisor of Road District No. 1, of Clinton township, Sac county, Iowa. The defendant is clerk of said township.

Action to recover double the value of certain horses, alleged to have been injured and hilled by being run over by a train on defendant’s road.

This is an action upon a note of $2,0Q0, dated September 28, 1874, payable in one year, with interest at the rate of ten per cent, and for the foreclosure of a mortgage -.executed to secure the same. The answer alleges that the note and mortgage are usurious.

The material averments of the petition are in substance as follows: It is charged that on the 28th day of December, 1865, plaintiffs recovered a judgment by confession against the defendant, Wm. Dearing, for $1,500.

This is an action in equity to enforce the specific performance of an agreement to' convey real estate. The cause was referred to Hon. P. Henry Smyth, who reported the facts and his conclusions of law. The defendants filed exceptions to the report, which were overruled, and a decree was entered for plaintiff. The defendants appeal.

Action on a written contract, the material portions of which are as follows: “ It is agreed that all sales of sewing machines, parts thereof or accessories thereto, which the Davis Sewing Machine Company, of Watertown, New York, parties of the first part, shall make to John W. McGinnis, of Greencastle, Jasper county, Iowa, parties of the second part, shall be upon the terms and conditions following, unless it shall be otherwise, in writing, hereinafter agreed during the…

Action to recover for personal injuries. • The plaintiff’s intestate, Maurice O’Neill, was employed as a brakeman on the defendant’s train. On tbe night of October 21, 1874, as the train was passing Comstock Station, without intending to stop, it ran off the track through an open switch and was wrecked. The said Maurice O’Neill had been assigned to the duty of handling the brakes at the front end of the train.

Action upon a promissory note for two hundred dollars and interest. Defense admitting the execution of the note, and alleging the payment of one hundred dollars of principal, and the interest due on the, whole note, and the execution of a new note for the remainder. Trial by jury, verdict and judgment for plaintiff for the amount claimed, and defendant appeals.

The defendant was garnished as the supposed debtor of one Densmore. At the next term of court, and on the 14th day of February, 1876, a commissioner was appointed to take the answer of the defendant as such garnishee. On the 22d day of February the commissioner filed the answer of the garnishee. It was admitted that the defendant was indebted to said Densmore in the sum of three hundred and sixty dollars.

On the 17 th day of April, 1875, the plaintiff commenced an action against James Oalhoon upon a judgment recovered in the District Court of California, against said James Caihoon, for the sum of six hundred and seventy-five dollars, and interest at the rate of ten per cent, and ten dollars costs, all payable in gold coin of the United States. • The petition alleged the non-residence of the defendant, and asked a writ of attachment which was served by garnishing John,…

Action to recover for money paid in the purchase of certain lands sold by the treasurer of Madison county in 1864 for the taxes of prior years. The tax sale was made to plaintiff’s grantor, and it has been found that the lands were not subject to taxation. The defendant, in its answer, sets up that the title acquired by plaintiff under the tax deed was or has become valid, and pleads, as a further defense, that the action is barred 'by the statute of limitations.

Action in equity to restrain the collection of city taxes on certain real property belonging to the plaintiff, situate within the corporate limits of the defendant, on the grounds, as stated in the petition: 1. That there never was an assessment made by an assessor elected for or appointed by the city, and returned as provided by law, on which to predicate a levy. 2. That the city council never caused the levy to be certified to the board of supervisors as provided by law. 3.

The plaintiff, wishing to take passage on defendant’s cars from Eldon to Fairfield, Iowa, ■ applied for a ticket at the ticket-office at Eldon, but was unable to obtain one, the ticket agent being absent. He then took a seat in defendant’s cars, and tendered to the conductor as fare the price usually charged for a ticket.

Plaintiff is the owner of certain land situated on the line of what he claims to be a public highway, which was established in 1846 by the board of commissioners of Lee county. .The defendant is a road supervisor. Certain owners of land ■.adjoining the alleged road fenced their lands to the section • lines thus inclosing the road, and plaintiff, after notifying the defendant to remove the obstructions from the road, commienced this action to compel him to do so.

This is a suit in equity to ascertain and settle the boundary line between. lands owned by sthe plaintiff and other lands owned by the defendant.

On the 17th day of August, 1855, J. R. Millard executed to Isaac N. Whittam a promissory note for the sum. of $344.50. On the 17th of January, 1856, said Millard purchased of B. M. Oooley lots 8 and 9 in block 59, in the town of Waterloo, and procured from him a bond for the conveyance of the property upon payment of the purchase price therein stipulated. This bond was recorded but was not acknowledged.

In chancery. The petition alleges, as grounds of relief: 1. The county of Guthrie holds $21,388.94, proceeds of swamp lands heretofore sold by the county and known as the Swamp Land Fund. 2.- That on the ■ 4th day of January, 1876, the board of supervisors of the county, constituted of defendants as members, upon a petition of certain legal voters, ordered a special election to be held in the several voting precincts of the county, to be held on the 14th of February, 1876,…

John L. Switz purchased at tax sale the NW. ¿ SE. J, 33, 79, 9, and Alfred Sully purchased at the same time the SW. £ NE. J of the same section, and one Beebe at the same time purchased another tract of land. All these purchases were made in October, 1869. Switz filed a petition to quiet his tax title, making James Black, the owner of the fee, and Wetlierell, the holder of a mortgage executed by Black, parties defendant.

Plaintiff and defendant, John Cole, entered into an agreement in writing whereby said Cole sold and agreed to deliver to the plaintiff “one hundred thousand brick, of good merchantable quality, sufficient to make a good substantial wall to a two story brick building, * ■ * * said brick to be counted and enumerated in the wall according to custom and rule of bricklayers in ascertaining the number of brick in a solid wall, not allowing anything for space occupied, by openings…

Action at law against a stockholder of the Dubuque Savings Institution to recover the amount of unpaid assessments upon the stock, and a further amount equal to the stock for which the defendant is alleged to be liable on account of indebtedness accruing against the corporation while defendant was a stockholder therein.

. Action to foreclose a mortgage executed to the plaintiffs by J. A. Slye and others, who are made defendants. Others still are made defendants as holding liens upon the mortgaged property. The question involved is as to whether the mortgage has priority over certain mechanic’s liens held respectively by the defendants, McDonald & Meara, Brooks, Wilson & Stein, and Martin Tuttle. The facts are stated in the opinion.

Action to recover certain real estate. The plaintiff’s title is based on the foreclosure of a mortgage and a sheriff’s deed, made in pursuance of a sale under said foreclosure proceedings. - The defendant’s title is based on a sale for taxes, and a deed made -in pursuance thereof. The petition alleged that the tax title under which the defendants claim one-half of the land in controversy was void for the reason that the taxes had been paid.

Action at law. The petition is in two counts. The first claims to recover for 303 5-6 bushels of wheat sold and delivered by Henry Hopkins to defendant at the market price, alleged to be $1.25 per bushel. It is expressly alleged that the contract of sale, was not in writing and that Hopkins transferred hi’s interest in the claim to plaintiff.

This is an action for personal injuries sustained by plaintiff by falling from a sidewalk which he alleges was negligently and improperly constructed, and negligently permitted by defendant to remain out of repair. The answer denies the alleged negligence, and avers that plaintiff’s injuries were received by reason of his own negligence. There was trial by jury, verdict and judgment for plaintiff. Defendant appeals.

This is an action in equity to set aside, as fraudulent, a conveyance of certain property from the defendant C. P. Mullinix to one A. C. Lockwood, and from Lockwood to the defendant Emma Mullinix. The court rendered a decree for plaintiffs, setting aside the conveyances named. The defendants appeal.

<p>1. Fences: on division lines: rights of adjoining owners. One who incloses land adjoining- another’s close, and does not own any part of the division fence, may throw any portion of such land open to common at pleasure.</p> <p>2. -: -: what constitute. "While a lawful fence is not necessary between adjoining farms to constitute occupation in severalty, still the partition fence must be such as will turn stock, and premises separated only by a hedge which is insufficient for that purpose must be considered as inclosed in common, -within the meaning of section 1496 of the Code.</p>

This is an action for the recovery of damages for slanderous words alleged to have been spoken by defendant concerning plaintiff, charging plaintiff with stealing defendant’s hogs. The first count of the answer contains a general denial to all the counts of the petition.

<p>1. Principal and Agent: authority op agent. Authority given by a principal to an agent to invest his money, and look after his business generally, will not enable the agent to sell his principal’s property, even such as may be acquired as the result of the investment.</p> <p>2.--: tax purchase. Where one is buying at a tax sale for himself, and is also, acting in some purchases as the agent of another, it will be presumed that the purchases made in his own name, 'and upon which he takes the certificates, are not made for his principal but for himself.</p> <p>3. Tax Sale: assignment. Where a tax purchaser assigned his certificate to another, the assignment not being recorded, and after the expiration of three years from the time of sale, but before the execution of the deed, executed a quit claim deed to the owner of the property, held that the quit claim deed conveyed no title, and that the assignment of the certificate was valid.</p>

The facts of this case briefly stated are as follows: O. H. Berryhill made two certain deeds of conveyance, each for the consideration of one dollar and love and affection, and with covenants of warranty, without exception, or reference to existing incumbrances. One of said deeds was made to his son Samuel L. Berryhill. The property conveyed was certain real estate'situated in Iowa Oity.

, The plaintiff is the owner of certain lots in the city of Council Bluffs, abutting on Green street, and has been since a time prior to the occurrence of the injury complained of. In 1859 the said lots were crossed.by a meandering stream Jtnown as Indian Creek, which stream also flowed into Green street, and without crossing the street flowed nearly lengthwise of it for quite a distance, leaving about twenty feet in width of the street for travel in the narrowest place.

This is an action to recover damages for the death of John Murphy, alleged to have been caused by'the negligence of the defendant’s employes. The defendant denies the negligence on its part, and alleges that the injury complained of was contributed to and caused by the carelessness and negligence of the deceased.

Action on two orders drawn by the defendant on its treasurer, payable with ten per cent interest to Crocket Rebble, or bearer, for building school house. The orders were in the usual form and dated August 21st, 1868. The answer set up several defenses, and among others that the.defendant was indebted, at the time the indebtedness was .created, to an amount exceeding the constitutional limit.

Action of replevin for certain wheat and oats in the possession of Isenberger, one of the defendants. The other defendant, Miller, intervened, and setting up a claim of property in the grain was made a party to the action. The cause was submitted to the court for trial without a jury, and the facts joined upon which the decision was had for plaintiffs were preserved of record. The defendants appeal. The facts of the case sufficiently appear in the opinion.

Dependant was indicted 'and convicted of the crime of grand larceny, and sentenced to confinement in the penitentiary for eighteen months. His case is brought to this court on appeal.

Action to recover for labor performed in the construction of a railroad and to establish a lien upon the railroad. The plaintiffs were sub-contractors under Stubbs & Co., who were themselves sub-contractors under the defendant, Samuel Merrill, who had contracted to build the road for the defendant, .the Knoxville, Albia & Des Moines R. R. Co. As to the amount due there is no controversy. The only question is as to whether the plaintiffs are entitled to a lien upon the road.

Action to foreclose a mortgage executed by the defendaut Harder, and to recover a personal judgment for the amount thereof against the defendant Avery. The petition avers in substance that the mortgaged premises were sold by Harder to Avery, and that Avery, as a part of the consideration of the purchase, agreed to pay the mortgage debt.

One A. H. Leake being the owner of a stock of merchant dise, sold the same to J. 0. Jones; the plaintiff herein. At the time of the sale Leake was indebted to the defendants in .considerable sums of money. After the sale the defendants commenced suits in attachment against Leake and levied on the stock of merchandise. Plaintiff brought this action in replevin, claiming to be the owner under his purchase.

The plaintiff in the first action is a resident property owner and taxpayer of Madison township, Polk county, and as such brought said… Held: but that thereafter and about the month of September, 1874, the said Henry Crabtree and J. M. Householder secretly went from said Madison township to the city of Des Moines, and to the office of said railroad company in said city, which is not within the territorial limits of said township of Madison, and executed said paper, dating…

On the 18th day of May, 1874, the parties hereto entered into a written contract in the following words: “ This agreement, between H. C. Sigler, of Osceola, Clarke comity, Iowa, of.the first, part, and W. W. Wick, of the second part: “ Witnesseth, That the party of the first part has this day bargained to the party of the second part, lots No. (8 and 9) eight and nine in block No. seven (7), in town of Murray, as designated by the recorded plat of said town, for the sum of…

This action is brought for the recovery of rent for plaintiff’s interest in eighty acres of land. The cause was tried by the court, and judgment was rendered for plaintiff for $13.31. The defendant appeals.

The defendants, Edward Brennan, Thomas Brennan and Patrick Brennan, were jointly indicted and convicted of an assault with intent to inflict great bodily injury upon the person of one Mrs. Goodfellow. The defendant Edward Brennan appeals.

Appeal from Muscatine District Court. Indictment for receiving stolen property. There was a jury trial, verdict of guilty, judgment, and defendant appeals.

Appeal from Fremont District Court It is alleged in the petition that defendant did, with its locomotive engine and train of cars, in consequence of defendant not having fenced and inclosed Its railway as required by law, knock down, injure, bruise, run over, fatally injure, and entirely destroy, of the property of plaintiff, one two year old colt, of the value of one hundred dollars. The answer was a general denial.

<p>Appeal: effect of paying judgment: practice rN the Supreme Court.'1'</p>

<p>Practice in the Supreme court: divorce: trial de novo.</p>

<p> Appeal from Dubuque Circuit Court. </p> <p>The plaintiff brings this action in equity, to recover dower in lot 105 in the city of Dubuque. Amongst other defenses the defendants plead the statute of limitations. The court rendered judgment for the defendants. The plaintiff appeals. The material facts are stated in the opinion.</p>

This is an action to recover the value of a team of horses and a wagon taken upon an execution issued on a judgment in favor of defendants and against plaintiff. The ground upon which plaintiff bases his right to recover is that the property was exempt from execution, plaintiff being the head of a family and dependent upon the team for his support.

<p> Appeal from Keokuk District Court. </p>

<p>Common carrier: assignment: evidence.</p>

Action in chancery brought by a wife to set aside a deed in which she united with her husband to convey their homestead, on the ground that its execution on her part was not voluntary but procured by compulsion exerted by her husband, with the knowledge of the grantees who are defendants to this suit. There was a decree dismissing plaintiff's petition, from which she appeals.

This is an action in equity to set aside a certificate of purchase and sheriff’s deed to defendant for lots one and nine, in block one, in the town of Olin, Jones county, and to permit plaintiff to redeem from the sheriff’s sale; and also to set aside a deed from plaintiff to defendant for a part of lot ten, in block one, in said town. The court rendered a decree for plaintiff, as prayed in the petition. Defendant appeals.

<p>Conveyance: evidence of fraud.</p>

The plaintiff, a resident of Illinois, owned a tract of land in Iowa, and had mortgaged the same to the defendant to secure a note for $271.70. The defendant, hy authority from plaintiff, sold said land for two promissory notes of $100 each and two horses. In his report to plaintiff, hy letter, he said: “They are a couple of pretty good horses.

Action to recover specific personal property. Trial to the court, finding for the defendant and judgment accordingly. The plaintiff appeals.

Action to foreclose a mortgage. One of the defendants, John Hall, has a mechanic’s Ren upon the mortgaged premises which he claims is paramount to the mortgage. Decree for plaintiffs, estabhshing then- mortgage as paramount. The defendant, Hall, appeals.

<p> Appeal from Clay District Court. </p>

<p> Appeal from Boone Circuit Court. </p>