Volume 46 — Iowa Reports

<p>1. Practice: verdict: evidence. Where there is a conflict in the evidence, the case will not be reversed because the verdict is against the weight of evidence, unless it is the result of passion or prejudice.</p> <p>2. Attachment: damages. The existence of a debt is essential to the issuing of an attachment, and if the writ is issued when no. debt exists the plaimiif is liable for whatever damages the defendant may sustain thereby.</p> <p>3. Practice: instruction: verbal inaccuracy. A mere verbal in accuracy in an instruction must be shown to have confused or misled the jury, to constitute ground for reversal.</p>

Action upon a promissory note in these words: “ Traer, Iowa, October 10th A. D. 1872. “ In consideration of the hjiilding of the Western Division of the Burlington, Cedar Rapids & Minnesota Railway, from the city of Yinton westerly, and the opening of Main street in Traer within 60 days from date, and for value received, I promise to pay to said railway company or order one hundred dollars, at the company’s office, two years after the iron is laid, and the cars running upon…

The plaintiff is a miner, and was employed by the defendant as such in its mines, and while in such employment received a severe bodily injury, and this action was brought to recover damages thereby sustained. The grounds upon which the plaintiff seeks to recover are stated in the charge of the court to the jury, as follows: “ 1.

Tiie city of Davenport was incorporated by a special act of the legislature. It has never abandoned its special charter In the year 1875 the township of Davenport was divi ded, and all that part thereof embraced in the corporate limits- of the city was created into a district township, called “ Township of the City of Davenport.” The city and the township thus created embrace precisely the same territory.

The plaintiff alleges that the defendant willfully and malicously set fire to and caused to be burned four stacks of wheat, the property of the plaintiff, worth $275. Plaintiff claims exemplary damages in the sum of $1,000. The cause was tried by a jury, and a verdict was returned for plaintiff for $500. The motion for a new trial was overruled and judgment was entered upon the verdict. The defendant appeals.

This action was commenced at law for the possession of a certain tract of land described as follows: Commencing at the northeast corner of an acre lot sold by C. Beal and wife to one L. 0. Sanders, thence east from said Corner 12 rods and 80 links, thence south 12 rods and fifty links, thence west 12 rods and 80 links, thence north 12 rods and fifty links to’ the place of beginning.

This suit was commenced in 1857 by Jacob Freeman against Andrew Oberly et al. Its object, was to subject certain real estate to the' payment of a debt wbicli Freeman held against Andrew Oberly. Afterward Freeman died and E. IT. Semple, liis administrator, was made party plaintiff, and Andrew Oberly died and A. J. McCrary, liis administrator, was made party defendant.

Action for the recovery of real property. The plaintiff holds a sheriff’s deed to the property in question, dated April 6th, 1874, and made in pursuance of a sheriff’s sale which occurred June 22, 1871. The said sale was made upon a judgment which was a lien upon the land.

Action against the defendants jointly for trespass and damage caused by their cattle. The answer consisted of a general denial, that there was a misjoinder of parties, and that the stock act was unconstitutional. There was a trial by the court, and judgment rendered against' the defendants, Murphy and Clemons, jointly, for fifteen dollars, and against the defendant, Kearney, for five dollars, and the defendants appeal. The court gave the certificate required by law.

Action to foreclose a mortgage. Tlie defendant pleaded usury. The facts are stated in the opinion. Judgment for defendants. Plaintiff appeals.

The plaintiffs recovered a judgment against the defendant Lowery. In the action the defendant Porter was garnished, and judgment was rendered against him, from which he appeals to this court. The facts are stated in the opinion.

Action in equity to subject certain land standing in the name of the defendant, Sarah E. Bowman, to the payment of ' a judgment in favor of one Benjamin Smith, against the defendant, Joseph Bowman. The said Smith having died letters of administration were issued to the plaintiff upon his estate.

This is a proceeding to establish the corners and lines of certain lands, brought and prosecuted under Chap. 8, Acts Fifteenth General Assembly. The report of a commissioner ■appointed under the provisions of the act was approved and a judgment in accord therewith was- entered. Defendants appeal.

Action for a balance due upon account. The defendant answered admitting most of the items of plaintiff’s account, but claiming further credits by way of set-off, amounting to more than the sum claimed by plaintiff. The reply was a general denial of defendant’s items of set-off, and also a plea of the statute of limitations.

Action upon a promissory note. Judgment was rendered against the defendant Beals by default. The defendant Hammer answered, averring in substance that he signed the note as surety only, and was at the time of unsound mind and incapable of doing business, or of comprehending the nature of his act in signing said note. The evidence supported the averments, and showed that the note was given for an antecedent debt.

Action to recover dower in certain property in the city of Dubuque. The property in question was formerly owned by the plaintiff’s husband, now deceased. Previous to its sale by the United States he had, or claimed to have, a pre-emption right to the same.

<p>1. Nuisance: what constitutes: municipal corporations. A city council lias no power to declare a tiling- a nuisance which is not such at common law, or has not been declared to be such by statute.</p> <p>2.--:-: shade trees. Trees growing- in a street or highway do not constitute a nuisance unless they make an obstruction to travel.</p>

Action in chancery to quiet in plaintiff t'lie title of certain lands in Cerro Gordo county. The defendants in their answer set up title in defendant, Cole, and pray that certain conveyances under which plaintiff claims title may be declared null and the title to the land be quieted in him. Upon the final hearing a decree was rendered dismissing plaintiff’s petition, from which he appeals to this court.

This is an action of replevin, commenced before a justice of the peace. Judgment was entered for the plaintiff. Defendant appealed to the Circuit Court. In that court the cause was submitted upon an agreed statement as follows: “1.

The plaintiff, an attorney-at-law, claims $350 on account of professional services rendered for defendants.

The plaintiff and defendant are the owners respectively of adjoining tracts of land in the county of Grundy. In Oct., 1873, the plaintiff requested the defendant to build one-half of a fence between said tracts.

Afjpeal from Floyd Circuit Court. It is alleged in the petition that the defendant, A; D. Fluent, executed and delivered to the plaintiff his promissory notes and mortgage for the sum of $1,500. That the mortgage and the notes were given for the purchase money of the mortgaged real estate.

The defendant was indicted for murder in tlie first degree in killing Joseph W. Hatton, in Pottawattamie county, and, upon conviction for the crime, was sentenced to imprisonment in the penitentiary for life. He now appeals to this court. The facts of the case are found in the opinion.

Action to recover the amount due on a promissory note executed by one T. Gr. Templeton, of whose estate defendant is administrator. The answer disclosed the fact that the note was executed in consideration of certain real estate sold and conveyed to said Templeton, the title to which, it is claimed, had failed, and it was therefore insisted that the consideration of the note had failed. The defense was of an equitable character and the cause is triable de novo in this court.

Action upon a promissory note which is in these words: “$75.00. Manchester, Iowa, Deo. 8, 1870. “ One day after date, for value received, we, the officers of the corporate UniversalistSociety of Manchester, Iowa, promise to pay to 0. Bliss, Sr., or order, seventy-five dollars, with interest at ten per cent. E. N. Thompson, President.

The plaintiff’s husband was a conductor in tbe employ of tbe defendant, and bad charge of a train which fell through a bridge on the night of August 24th, 1875, whereby lie was killed. Tbe plaintiff, as administratrix of her deceased husband, brought this action to recover damages to tbe estate caused by his death.

The defendant was indicted, tried, convicted and sentenced, for the crime of larceny. The necessary facts appear in the opinion.

This is an action upon a bond executed by defendants for the faithful performance, upon the part of the defendants, Geo. 0. Beam and E. H. Haller, of the duties devolving upon them as referees in an action for partition. Plaintiff alleges that he is the owner of the bond by assignment.

In November, 18J2, plaintiff filed his petition in chancery wherein II. C. Metcalf was made a defendant, alleging that in 1870, plaintiff was the owner of certain premises situated upon the Wapsipinicon river, in Jones county, whereon were two mills propelled by power obtained from the water of the river. In that year he sold and eonveyed to defendant a portion of the premises whereon was situated one of the mills, a saw mill, the other being a flouring mill.

The plaintiff avers in her petition that the defendant assaulted and beat her with a pitchfork, whereby she sustained great injuries. Trial by jury. Verdict for plaintiff for $200. Defendant appeals.

Action to recover for building a partition fence. Tbe plaintiff complained verbally to the fence viewers that a partition fence which it was incumbent upon the defendant to maintain was out of repair. On the 15th day of September, 1873, they notified the defendant, at 4 o’clock in the morning, that they would_ meet to view the fence at 9 o’clock of that day. At the appointed hour they met and viewed the fence and determined that it was insufficient.

The petition states that an action was pending against the defendant, and the plaintiffs were employed as counsel in said action by the chairman of the board of supervisors of defendant, who was acting in the matter of said employment for said board; that plaintiffs did appear in said action and rendered services therein; that they so acted under said employment with the concurrence of the district attorney and with the knowledge and consent of said board who knew and…

. Appeal from IÁim District Gowrt. The defendant, being garnished in an action brought by plaintiff against Alfred Stinson and others, answered before a commissioner denying all indebtedness to the defendant in the action.

On the 21st day of January, 1873, the plaintiff filed his petition .for the foreclosure of a title bond or agreement in writing to convey to the defendant, Malinda Hamburg, certain real estate. There was claimed to be due the sum of $1,200 and interest. Promissory notes were held by plaintiff for the amount claimed, which notes were executed by Malinda Hamburg and the defendant, Henry Hamburg, the husband of said Malinda.

Action in chancery to quiet the title to lands, which, plaintiff alleges, he holds under certain tax sales and deeds. The defendants set up title in themselves under a conveyance from the patentee of the government. They make their answer a cross-bill and ask that the title to the land be quieted in them. There was a decree granting the relief prayed for by defendants. Plaintiff appeals.

This is a proceeding upon charges preferred by Jones, a private prosecutor, to disbar the defendant, a practicing attorney, residing at Algona, in Kossuth county. Six charges were exhibited against him. There was’ a trial before the circuit judge of that county. As to two of the charges the defendant was found not guilty. As to four of the charges the defendant was found guilty, and suspended from practice in the Circuit Court for one year.

This action was originally commenced to recover of defendant, Hardwick, upon a promissory note. The action was aided by attachment which was levied upon certain lands claimed to be the property of said defendant.

This action is brought for judgment on three promissory notes executed respectively on the 6th day of April, the 19th day of June, and the 1st day of October, 1875, by D. 13. Elwell to plaintiffs, and for the foreclosure of mortgages executed contemporaneously with the notes, to secure them. The petition alleges that Fred. Fry has some claim upon the real estate described in the mortgages, and asks that the mortgages be foreclosed. The defendant, Ered.

On the 22d day of June, 1874, the plaintiff filed his petition against Samuel J. Walker and the gas company, in which it was stated that Walker was a non-resident of the State and that he was the owner of 423 shares of stock in said company; an attachment was asked, and that the gas company be required to answer and state the amount of stock owned by Walker, and that it be enjoined from making any transfer of said stock on its books. No injunction was issued.

' The defendant’s wife, Ann McDonald, was adjudged by tlie commissioners of insanity to be insane and was ordered to be sent to the hospital for the insane at Mount Pleasant, and was afterward removed to the hospital for the insane at Independence. The expenses attending her treatment have been paid by the plaintiff, to-wit: for the quarter ending June 30th, 1874, and two subsequent quarters. This action is brought to recover the amount so paid of the defendant.

This is an action brought to set aside a judgment rendered against the plaintiffs in favor of one E. E. Yan Sickel, one of the defendants, in an action upon certain school warrants and to secure the right to plaintiffs in this case to appear, answer and defend in the action wherein the judgment was rendered against them. A trial was had to the court and a judgment rendered granting plaintiffs the relief asked by them in their petition. The defendants appeal.

Action to recover for personal injuries sustained by plaintiff from being thrown with his sleigh, in which he was then riding, down the bank of the approach to a bridge, the accident being caused by the defective and dangerous condition of such approach. A demurrer to the petition was sustained and judgment rendered for defendant, plaintiff standing upon his pleading. He now appeals to this court.

The plaintiff commenced an action in the Circuit Court of Hamilton county against defendant, upon an account for legal services and disbursements. The defendant being a nonresident of the state, the suit was by attachment. On the 20th day of January, 1874, the defendant appeared by counsel, and on his motion the venue of the action was changed to the Black Hawk county Circuit Court.

Action to recóver the balance due upon the sale of a wind mill. The mill was sold to the defendant by the firm of Black-man1 & Son, who were agents of the plaintiff. Afterwards the defendant was garnished upon an execution against Blackmarr & Son. The defendant being ignorant of the agency, as he alleges, and supposing that he was indebted for the mill to Blackmarr & Son, answered as garnishee that he was so indebted, and judgment was rendered against him upon his answer.

The petition asks that the sale be declared invalid and that said tax, penalty and interest be declared not to be a lien on said land. To this petition there was a demurrer, which being overruled, defendant appeals.

Action upon a promissory note. The defense of usury was pleaded thereto. There was an appearance for defendant at the trial, and a judgment had for plaintiff. Defendant filed a petition to vacate the judgment and for a new trial upon the ground that the attorney employed by him to defend the case had negligently and fraudulently failed to take testimony and appear and defend at the trial, and suffered judgment to be taken in the case.

A default was entered against defendant for want of appearance which, at the time it was taken, he moved to set aside. The motion was continued to the next term, when showing was made of additional grounds therefor. It was then overruled. From this action of the Circuit Court defendant appeals.

The petition of plaintiff shows that defendants rented of plaintiff a certain tract of land at specified rent, which is due, that a part of the rent has been paid, but defendant refuses to pay the balance; that defendant is insolvent, and plaintiff believes unless he is restrained he will sell and dispose of the grain grown upon the farm. It is alleged that Mary Rotzler claims some interest in the property.

The substantial averments of the petition are as follows: In May, 1875, the defendant employed the plaintiff to purchase for him, in Chicago, five thousand bushels of wheat, to be delivered in the month of June following, and requested the plaintiff' to make such advance on said purchase as might be required. In pursuance of such request plaintiff purchased through Ives Bros. & Co., of Chicago, five thousand bushels of wheat to be delivered in June, 1875.

<p> Appeal from Louisa District Court. </p> <p>The defendant was convicted of the crime of rape and appeals to this court.</p>

This is an action to recover tlie balance due upon a promissory note given by the defendants for a threshing machine which they purchased and operated as partners. The answer alleges that there was a breach of the warranty upon which the machine was sold, and contains a counter-claim for the damages alleged to have been sustained.

The plaintiff is the widow of one John Bafferty. She avers in her petition, in substance, that she has been injured in her means of support by reason of the intoxication of the said John Bafferty, produced by intoxicating liquor sold him by defendants. Other facts are stated in the opinion. Trial by jury. Verdict and judgment for plaintiff for $600. Defendants appeal.

The plaintiff is a municipal corporation of the second class, and in July, 1876, the council of said city passed a resolution directing the owners of certain designated lots in the corporation to fill up or drain the same, and in default of the same being done within ten days from the date of completed publication, or of personal service of the resolution, it was provided therein that the council might cause the same to be done and the cost thereof collected off of the lots…

This is an action for the enforcement of a specific performance of a written contract to convey real estate to plaintiff, in consideration of the conveyance of certain real estate by plaintiff to defendant.

Action to recover upon a subscription to stock. The plaintiff is Eeceiver of the Iowa & Minnesota Construction Company. The shares of the company were fixed at $1,000 each, and the defendant subscribed for twenty shares. The petition avers that an assessment of ten per cent' was made July 22, 1876, and that defendant has paid on said assessment only $982.50, leaving still due from him the sum of $1,017.50.

<p> Appeal from Fayette Circuit Court. </p> <p>This is an action of replevin which was commenced before a justice of the peace. The justice rendered judgment for plaintiff in the sum of forty-five dollars and costs. Defendant appealed to the Circuit Court, where the cause was submitted upon the following agreed statement of facts:</p> <p>“ That about the first day of September, 1875, defendant, J. C. Barnes, as local agent of the American Express Company, received at the office of said company at Strawberry Point, towa, a certain box marked “ dry goods,” billed and marked C.O.D. thirteen dollars,’ and consigned to plaintiff; that defendant immediately informed plaintiff of the receipt of the box; that plaintiff tendered the amount of express charges, one dollar and fifty cents, and demanded an inspection of the goods, and then claimed that the box contained ahúman skeleton, the bones of which, before matriculation, were the property of plaintiff; that the same had been left with one W. Mahone, the consignor, in Chicago, 111., under an agreement between them that said Mahone was to matriculate the same in a good, workmanlike manner, for the sum of fifteen dollars; that plaintiff had paid him five dollars on said agreement, and with the further understanding that the skeleton, when complete, should be shipped to plaintiff by express; that previous to shipment some correspondence had taken place between Mahone and plaintiff' in relation to the loss of some of the bones, and an offer on the part of Mahone to supply them for the sum of three dollars; that plaintiff directed said Mahone to supply the lost bones, and when the job was completed to ship the same to him at Strawberry Point, Iowa, by express, C. O. D. Plaintiff then claimed the right to inspect the skeleton contained in the box to ascertain if the bones had been supplied and the matriculation well executed. Defendant then informed plaintiff that it was against the rules and regulations of the express company to. allow an inspection of express goods without the consent of the consignor; that defendant immediately telegraphed to consignor for permission to allow plaintiff to inspect the goods; that consignor refused to allow an inspection to be made, and directed that unless plaintiff received the same and paid the amount claimed at once that defendant should ship the same back to consignor; that within a few days thereafter defendant reported to plaintiff the orders and directions of . said consignor, and recpiested him to receive the goods and pay the amount demanded; that plaintiff then offered to place the amount of the claim, viz: O. 0. D. thirteen dollars in money in the hands of defendant, on condition that he could then inspect the goods, and if found to be perfect in its parts and the workmanship good, then the plaintiff to keep the goods and defendant to retain the money, otherwise plaintiff to return the goods and take back the money, and offered to leave the question to defendant to decide whether the parts were all there and the job reasonably well done, at the same time tendering the express charges, one dollar and fifty cents, and leaving the same on defendant’s table; that defendant refused to receive the money or allow plaintiff to inspect the goods, and notified plaintiff that he should re-ship the goods to Chicago, according to instructions; plaintiff then notified defendant that he should proceed to replevin the same; that wffiile plaintiff was endeavoring to obtain his writ of replevin defendant placed the box upon an eastern-bound freight train with orders that it be left at some station east and taken up by the next express train; that the officer with the writ of replevin reached the express office before the arrival of the first eastern-bound express train, and that the box was in defendant’s hands at the time the writ issued; that the value of the goods was forty-five dollars; that plaintiff’s damages, if any, were ten dollars.” The court rendered judgment for defendant. Plaintiff appeals.</p>

It was averred in the petition that the eggs were properly packed, but when they were delivered to the consignees at Davenport were mostly lost, broken and worthless. The answer denied the eggs were properly packed, and it was averred they were unsound and unmerchantable when packed; that the eggs had been pickled by a preparation that rendered them unsafe for shipment. There was trial to the court, a judgment for plaintiff', and defendant appeals.

One E. B. Chaney, being the owner of two steers, on the 3d day of July, 1874, executed a chattel mortgage thereon to the plaintiff. The defendant, Lucinda Findley, held a judgment against Ohaney, upon which she caused an execution to issue on the 6th day of July, 1874, which'was delivered to the defendant, Holiinger, as constable, for service. On the same day Holiinger levied upon the steers as the property of Chaney.

Action upon a promissory note payable to Hugh Wallace or bearer. Recovery is sought against Reed as tbe maker of the note and against Rand as an indorser in blank at the execution of tbe instrument, being neither a payee, indorsee, assignee, or bolder of tbe paper. Reed made default and judgment was rendered against him thereon.

Miles White commenced this action for the purpose of quieting his title to the S. W. £ of the N. E. £ of section 18, township No. 80, range 41. Miles White having deceased pending the action, it was continued by plaintiff, the son, sole heir and executor of the last will of Miles White. Plaintiff claims that Miles White entered the land in controversy, at the Government Land Office in Council Bluffs, on the 23d day of March, 1858.

The plaintiff, claiming to be the owner of certain lands described in the petition, under the act of Congress entitled “ An Act to enable tbe State of Arkansas and other States to reclaim the swamp lands within their limits,” approved September 28,1850, and the act of the General Assembly entitled “ An act to dispose of the swamp and overflowed lands wflthin the State, and to pay the expenses of selecting and surveying the same,” passed in 1853, commenced 'this action in…

The petition avers that George W. McMillan, the plaintiff’s intestate, being a boy about nine years of age, while walking upon defendant’s bridge was thrown therefrom by the defendant’s train, and caused to fall from the top of said bridge to the ground, a distance of about twenty feet, and thereby susr tained an injury from which he died on the following day.

Apjpeal from Winneshiek Circuit Court. Action at law. A demurrer to plaintiff’s petition was sustained and judgment thereon rendered for defendant. Plaintiff appeals.

Action upon a promissory note of which the following is a copy: “ $25.00. .

Action on two promissory notes. A demurrer to the petition, and also a motion that plaintiff be required to subdivide the petition in such manner that each cause of action be stated wholly in a count or division by itself, having been overruled the defendants appeal.

This action was brought to recover upon a promissory note executed jointly by the defendant Bauserman and one Walters and one Jordan. The two latter persons -were joined as defendants with Bauserman, and judgment was rendered against them by default. The plaintiff then dismissed as to Bauserman.

Action in equity to restrain the collection of taxes levied for the year 1867, upon certain lands in the county of Sac. The lands formerly belonged to the plaintiff, The Cedar Eapids & Missouri Eiver E. Company, and have now been conveyed to the plaintiff, The Iowa Eailroad Land Company. The plaintiffs claim that the lands are not liable for the taxes . of that year, for the reason that they belonged to the State of Iowa until after the first day of January of that year.

On the 12th day of November, 1872, Rhoda Crandall being seized of certain lots, in the village of Fayette, constituting her homestead, and about forty acres of land, duly executed a deed conveying said property to her husband, FI. Crandall. On the 5th day of March, 1873, H. Crandall made a will by the terms of which he devised all the property of which he was then seized, or of which he might afterward become seized, to the defendants, Carrie M. and IF. A. Evarts.

The plaintiff is a citizen and taxpayer, residing in the city ofWaverly. The defendants are the city clerk, mayor, and treasurer of said city.

On the 2d day of April, 1862, the W. \ of section 28, township 97, range 13, was sold by the treasurer of Chickasaw county, for the delinquent taxes of 1858, 1859 and 1860, and in pursuance thereof deeds were duly executed to Pitt Cooke, under whom plaintiff claims. On the 27th of August, 1867, the aforesaid land was patented to Geo. W. Jones.

The plaintiffs claim that the premises in question constitute a part of their homestead and are exempt from execution. The homestead consists, as they claim, of the west half of lot IT in Hughes, Robinson & Buffer’s subdivision of the northwest quarter of the northwest quarter of section 21, township T8, range 3, east, and contains one and one-quarter acres of land. The house which the plaintiffs occupy is upon the west half of the land.

Defendant, George Griswold, was the owner of one threshing machine, three horses and a wagon. On the 4th day of August, 1868, he made a chattel mortgage on said property to the defendant, Brayley, to secure $595, with interest at ten per cent per annum. Said mortgage was duly recorded. On the 12th day of July, 1869, plaintiff exchanged some pz’operty with Griswold for one of said horses, without any knowledge that the same was mortgaged.

Plaintiffs commenced an action in the court below against David Clark. There was an attachment issued. J. F. Brown, appellee herein, was served with a notice of garnishment. The service of this notice was had in Bremer county, the place of Brown’s residence. The notice required Brown to appear at the next term of the Circuit Court for Dubuque county. At the next term the place of trial was changed to the Buchanan county Circuit Court.

. The defendant was convicted of rape and sentenced to confinement in the penitentiary for the term of ten years. He prosecutes his appeal to this court. The facts of the case appear in the opinion.

Action in equity to recover upon a covenant of warranty in a deed against incumbrances, and to enforce a lien for the amount recoverable. Held: after deducting rents and profits.. Of the improvements the part made by Guthrie are worth about $200. The consideration expressed in the deed from defendants to Guthrie is $1200. The junior incumbrancer did not sell upon his decree, being deterred, as the evidence tends to show, by the large amount of the |enior claim.

The plaintiff, Boulton, claims that, he and one Wilkins as • partners purchased a lot in the town of St. Charles, the title of which was conveyed to Wilkins for convenience: that afterward they commenced the erection of a building thereon in the erection of which several thousand dollars were expended, all of which but a small portion was furnished, by Boulton; that afterward an arrangement in parol was made whereby Wilkins agreed to convey the premises to Boulton, and the…

These causes were submitted to the court below upon the following agreed facts: “Griswold College is a corporation organized under the laws of the State of Iowa, for literary, scientific, and educational purposes.

The plaintiff brings this action for assignment of her distributive share in the real estate of her late husband. At the time of his decease, in August, 1875, plaintiff’s husband was seized of eight separate parcels of land in Delaware county, three separate parcels in Eayette county, and four separate parcels in Clayton county.

The petition further shows that upon the delivery of the bond plaintiff paid Whisler the sum of $2200, the same being in full-of the purchase money; that the obligation of defendants by said bond was that- Whisler should, on the 19th day of August, 1874, make a conveyance with a good and sufficient warranty deed, covering any and all acts done and performed by said Whisler after he became the owner of the property.

. Appeal from Pottawattamie Circuit Court. On the 15th day of June, 1876, the plaintiff’s commenced their action to recover of D. J. Nichols five hundred and eighty-one dollars, for merchandise before that time sold by them to said Nichols. The petition contained the necessary allegations for a writ of attachment. The writ was issued, and on the same day a notice of garnishment was served on S. W. Clark.

This is an action at law. The plaintiff held a judgment against Michael and Catherine Scliunk, and Catherine Wunderlich was garnished on execution. Her answer denies any indebtedness to the other defendants. Issue was taken upon her answer. There was a trial by jury — verdict and judgment for the garnishee. Plaintiff’ appeals.

The defendant, The Independent District of Stuart, contracted with Corry, Morrison & Co. for the erection of a school-house. Afterward the said C., M. & Co. sub-let a portion of the work to the firm of W. Bartlett, W. Bushell & Co. The said sub-contractors performed a portion of the work by ■them to be performed, amounting to $2.265, and the con-tractors performed the remainder.

Action to recover for services rendered by plaintiff in threshing the grain of defendant.

The petition states that plaintiff is . the widow of Orville K. Nye, who died in 1868, owning the S, E. ¿ of Sec. 19, T. 82 N., 4 east; that previous to his death and for about five years the homestead of said Orville was on said premises, and that plaintiff has continued to live thereon and occupy the same as her homestead; that the house so occupied as a home is situate on the N. E. J of said S. E. and that the same, in April, 1873, was duly and properly set apart as her…

Appeal from Kossuth Circuit Court. Action for slander. The facts are stated in the opinion. Judgment for plaintiff; defendant appeals.

The averments of the petition which are nécessary to an understanding of the case are, in substance, as follows: On tbe 22d day of April, 1873, plaintiff recovered a judgment against Samuel Ash and Joseph Ash, Jr., for $226. The defendant, Joseph Ash, Sr., became surety on a bond for stay of execution on said judgment. Joseph Ash, Sr., was at the time the owner of a farm of some seventy-one acres.

The petition and amendments thereto so far as necessary to be stated, are in substance as follows: On the 13th day of March, 1869, a tax of five per cent was voted by the qualified voters of Clayton township, in Clayton county, in aid of .the construction of plaintiff’s railroad.

Action to bave a conveyance of real estate, absolute on its face, executed by the plaintiff to the defendant declared a mortgage. The plaintiff offered to pay a certain sum of money and asked that the indebtedness be canceled and his title to the premises quieted and for general relief.

These plaintiffs allege that they bought of the defendant two promissory notes, one for the sum of $240.00, executed by James Evart, and one for $51.97, executed by Eden E. Latta; that the defendant, willfully and fraudulently to cheat and defraud plaintiffs, represented that the makers of the notes were perfectly responsible; that the representations were false, the makers at the time being insolvent; that plaintiffs by reason of said false representations were induced to…

Appeals from Fayette Circuit Court. The first above named action is for a writ of mandamus to compel the defendant to order the treasurer of Fayette county to refund to plaintiff certain taxes which were paid by plaintiff, because said taxes were void and illegal, as is alleged.

Action in chancery. There was a decree of the District Court granting the relief prayed for by plaintiff. Defendant appeals. The facts of the case appear in the opinion. . .

It is averred in the petition that in February, 1875, the defendant, Solomon Baker, being the owner of 160 acres of land, offered the same for sale at public auction, upon the following advertised terms, to-wit: “ One half cash, the balance in two and three years, at ten per cent interest payable annually;” that at said public sale the plaintiff bid for said farm the sum of $2,000, and the same was struck off and sold to him at that puice; that the clerk of said sale made a…

The town of Manchester is incorporated under the general incorporation law, and an information was filed before the mayor against the defendants for violation of an ordinance of said town.

<p>_ , . „ 1. Contract: performance: conclusion of party. The conclusion oí a party to a contract that the 'contract has been performed will not bind him, if the contract shall not hare been actually performed in accordance with its terms.</p> <p>2. -: custom: evidence. Customs are subordinate to contracts and will not control or affect the rights of parties whose contracts contain conditions not in harmony therewith.</p> <p>3. Evidence: opinion of witness. The opinions of a witness, respecting the rights of the parties to the contract in controversy and the legal effect of their acts, are not competent evidence.</p> <p>4. Contract: evidence. S. had established a mechanic’s lien for certain ties furnished a railroad company, and afterwards brought suit against the lessee of the road for certain other ties which he claimed were not included in the former judgment. Upon the issue of the ownership of the ties by the company, it was held competent to show by the engineer that S. delivered others than those embraced in his estimate.</p> <p>5.--:-. It was competent for the plaintiff to inquire into the disposition of the various lots of ties furnished the company, to establish the fact that the number for which judgment had heen recovered, and which were included in the engineer’s estimates, did not embrace the ties in controversy.</p> <p>6. -: performance. The company being bound by the contract to receive all ties of plaintiff required for the construction of a certain specified portion of its road, which should be accepted by its engineer, where certain ties included in the engineer’s estimates were not used and certain ones not included were used in their stead, and by agreement of the parties those not used were excepted from settlement, they still remained the property of the plaintiff.</p>

A confession of judgment was executed by A. C. Elliott, and the payment thereof guaranteed by Samuel Wilson.

Action commenced by attachment before a justice, before whom a motion was made to dissolve the attachment and dismiss the action. Thereupon, by consent of parties, the cause was certified by the justice up to the Circuit Court, which dissolved the attachment and dismissed the action. The plaintiff appeals. The trial judge gave the certificate required by law.

This action was commenced on the 18th day of August, 1876, upon two promissory notes, and for the foreclosure'’of a mortgage executed to secure the same. The notes are for five hundred and fifty dollars, due respectively November first, 1876 and 1877, with ten per cent interest per annum from date.

Action to foreclose a mortgage. The defendant, Alphia Yan Bogart; avers that the premises, at the time of the execution of the mortgage, were her homestead; that she was then a married woman, and that the mortgage was not signed by her husband. Decree for plaintiff Defendant appeals.

Action to recover possession of certain real estate in the city of Decorali. The title of record is in the plaintiff. In 1862 he executed a bond to the defendant, S. 0. Wilson, whereby he obligated himself to convey the land to him, upon the payment of certain notes given him for the purchase money, the last of which matured in 1864. Wilson took'possession under his purchase, and has been in possession since that time.

The plaintiffs are the owners of lot 188, in the town of Bellevue. The defendant’s railroad is located along the mid-, die of Second Street, in front of said lot, and upon the grade of the street. On, said lot is a two story stone building, occupied as a store. The town having been laid off under the act of Congress approved July 2d, 1836. The plaintiffs own the fee to the middle of the street.

On the 3d day of April, 1876, there was filed in the office of the clerk of the Bremer District Court a motion for summary judgment against defendant, G. 0. Wright, for $350.00 alleged to have been collected by Wright as an attorney, and withheld from his'client. On the same day, the case being called for trial, the defend- • ant demanded a jury, which the court refused, and the defendant excepted. The canse was then continued.

'.ppeal from Delaware Circuit Court. Action to recover of defendant four dollars and forty cents for filling a hole in a sidewalk, which it is alleged that defendant was under obligation to fill. The action was brought before oné S. L. Doggett, as mayor. An application was made for a change of venue on the ground of prejudice. The motion was overruled on the ground that a change of venue is not allowable from a mayor’s court, to which ruling the defendant excepted.

In chancery. The petition alleges that plaintiff borrowed of defendant, Russell, $500; that at the time of the loan plaintiff confessed a judgment to this creditor for the sum of $750, payable in installments, and that the contract was usurious and the confession of the judgment was a device to aid defendant in evading the statute against usury.

<p>1. Pleading: irrelevant hatter: municipal corporations. In an action against a city and railroad company to prevent the occupancy of a street by the latter, and for damages therefor, it was held that allegations in the petition to the effect that other streets were occupied by other railway companies were immaterial, and might be stricken out upon motion.</p> <p>2. Railroads: occupancy of street: municipal corporation. Where a railway company has been granted the right by the city council to occupy with its track the street of a city, the laying down of an additional track without the consent of the municipal authorities does not of itself constitute a nuisance or entitle an adjacent property owner to damages therefor.</p>

Action to recover for personal injuries sustained by plaintiff, a laborer in the machine shops of defendant, by being knocked down and greatly injured by a locomotive driving-wheel which plaintiff and other employes were moving by hand.

This action was originally brought to recover fbr work and labor performed by the plaintiff, under ah agreement in writing, whereby the plaintiff undertook to grade and construct all of the road of defendant between the south and north line of Delaware county, in accordance with certain specifications which were annexed to, and made a part of the contract.

This is a mandamus proceeding for the purpose of compelling the defendant, the Auditor of State, to issue warrants upon the State.treasury in favor of the proper officer of the State University, for money appropriated for its support by Chap. 168, Acte Sixteenth General Assembly. The petition alleges that, under the act, it is the duty of defendant, as Auditor of State, to draw certain warrants upon the State treasury, which he fails and neglects to perform.

The defendants being duly formed previous to July 31st, 1876, their corporate powers on and ■ previous to said period extended over territory lying wholly outside of the corporate limits of the city of Burlington. At the same time there existed the Independent School District of the city of Burlington, which was coextensive with the territorial limits of the city, as they existed previous to the day aforesaid.

■ This is an action against ¥m. A. Stevens upon a judgment recovered at the October term, 1874, of the District Court of Douglas County, Kansas, for the sum of $2,-792.70, against. William H. Carey and,William A. Stevens, on personal service of summons, upon a note executed by Wm. FI. & C. J. Carey and Wm.

This is an action to recover upon an indorsement made by defendant of a certificate of deposit issued by a bank, which, plaintiff claims, was received by him as evidence of defendant’s indebtedness upon the purchase of certain lands against which plaintiff seeks to establish, in this action, a vendor’s lien. The cause was tried to the court without a jury. Upon the facts as found by the court, judgment was rendered for defendant. Plaintiff appeals.

On tlie 14th. day of October, 1872, plaintiff filed bis petition in tbe District Court ‘of Butler county, claiming a divorce from tbe defendant. Tbe petition charged tbe defendant with adultery committed with one A. B. King, and such cruel and inhuman treatment as to endanger tbe life of the plaintiff. There was service of tbe original notice by publication.

<p>1. Criminal law: indictment: perjury. In an indictment for penury,, it is necessary to aver that the court or person before whom the oath alleged to be false was taken had authority to administer the same.</p>

These suits were brought by the plaintiffs to enforce a mechanic’s lien against the Davenport & St. Paul Railroad Co., for work done and materials furnished in constructing the road of said defendant. The railroad company had made a mortgage upon its property and William Dennison and John E. Thompson were the trustees named in said mortgage. Said trustees were made parties defendant. Service of the original notice was made upon them by publication.

On the 3d day of February, 1877, the plaintiffs filed in the Emmet Circuit Court a motion for an order for the substitution and entry upon the records of the court of a record entry, in the place of the record of the action and judgment of the court made on the 10th. day of February, 1876, but now destroyed.

Action to recover under the statute twice the value of a .partition fence, which defendant was required to build by the decision of the township trustees. There was a verdict and ■judgment for plaintiff; defendant appeals.

The action was brought by George Gillaspy, husband of the plaintiff, Eleanor Gillaspy. Afterwards, Geo. Gillaspy having died, the present plaintiffs were substituted. The lot in question was formerly owned by one D. B. Abrahams. The plaintiffs claim title through an execution sale made upon a judgment against him upon a debt due from the firm of Geo. Gillaspy & Co., of which • firm Abrahams was a member.

It is averred in the petition that prior to the first day of April, 1874, plaintiff was duly appoiuted and qualified as clerk of the additional penitentiary of the State of Iowa, at Anamosa; that he has continued to hold said office, to perform all the duties thereof, and to be entitled to all the compensation allowed by law therefor, from that time until the filing of the petition herein; that under the provisions of chapters 61 and ^76 of the private, local and temporary…

The plaintiff is administratrix of the estate of her deceased husband, John W. Jones, who died on the 2d day of .December, 1873, intestate, and the plaintiff filed the petition in this case asking the advice and direction of the court as to the distribution of the property left by the deceased.

Action at law to recover rent. The cause was submitted to the court without a jury, and a judgment rendered for plaintiff. Defendant appeals.

Appeal from Henry Distriet Court. Action in equity, commenced in April, 1873. There was a finding and judgment for the plaintiff, and defendants appeal.

The plaintiff claims of the firm of Snow, Foote & Co'., and of Samuel W. Snow, Mark S. Eoote, and M. M. Eoote, the individuals composing said firm, judgment upon a note, of which the following is a copy: “ $150. Burlington, Iowa, Oct. 24th, 1873. “ Sixty days after date I promise to pay to the order of Eugene Sherwood, one hundred and fifty dollars, with ten per cent interest from date, without defalcation, value received. “ Sam.

The petition in substance alléges that on the 8th day of December, 1861, Elwood Negus duly executed his last will and testament, giving and bequeathing to the plaintiff, his wife, all his property both personal and real; that Elwood Negus died July 27th, 1875, leaving surviving him the plaintiff, his widow, and four children, who are also children of the plaintiff, to-wit; Bracken Negus, aged twenty years; Elizabeth Negus, aged fourteen years; Caroline Negus, aged seven…

Action upon a warranty of a liorse obtained by plaintiff of defendant by an exchange of another horse. The warranty was to the effect that the animal would work well in single or double harness. The petition alleges a breach of the warranty by reason of the horse being balky, and a tender or offer to return it to defendant.

Action to foreclose a mortgage. Tbe defendants for answer set up a contract entered into between tbe plaintiff, Barnett, tbe defendant, Tbomas Nelson, and one Sbafer, wberebv said Sbafer was to have possession of the mortgaged property, and pay off tbe plaintiff’s mortgage. Further facts are stated in tbe opinion. Decree for defendants. Plaintiff appeals.

This is a contest between the creditors of John P. Sunder-land, in relation to certain money due him for real estate sold the defendant, Dean’s, intestate. The facts are stated in the opinion. The court found for the intervenor, Howard, and the plaintiif appeals.

The plaintiff brought an action to set aside a tax deed to certain land of which he was in possession. Judgment was rendered against him, and in favor of the defendant for*costs. No order was made in regard to possession. Afterward, and in vacation, the judge made an order that the clerk issue a writ of possession, which was done, and the writ was executed and the defendant put in possession.

Action of replevin commenced before a justice of the peace, where judgment was rendered for plaintiff. This judgment was affirmed in the Circuit Court upon certiorari and defen- ‘ dant appealed to this court. The facts of the case appear in the opinion.

The petition avers that the defendant entered upon the premises and prior actual possession of the° plaintiff, and destroyed and injured the fence upon said premises, and the vines and shrubbery thereon growing, whereby the plaintiff was damaged in the sum of $100, for which he asks judgment. The defendant, for answer, denies' the allegations, and for counter-claim avers that the plaintiff wrongfully entered upon his premises and tore down the grass, etc. Trial by jury.

In the years 1874 and 1875 the plaintiff borrowed, of different parties, large amounts of money. He employed defendant as his agent to procure loans by negotiating plaintiff’s promissory notes. Said notes were from time to time placed in defendant’s hands and were by him sold and discounted. As these notes fell due other notes of the plaintiff were negotiated, by discount or renewal, for the purpose of taking up, or carrying, the loans for plaintiff’s benefit.

This is an action upon a promissory note for five hundred dollars, payable to the order of Jane Hamilton, executed by Asa Hooper, William Moody, Cordelia Moody and A. P. Perguson.

<p> Appeal from Clarita Circuit Court. </p> <p>This is an action of replevin. The plaintiff claims the property in controversy, twenty-four head of stock cattle, of all sizes, kinds and sexes, and about two years old, in virtue of a purchase of the same from one John O’Hara, on the 10th day of July, 1874. The defendant, O. W. Cowles, claims the property under a chattel-mortgage executed by said John O’Hara, on the 16th day of July, 1874, to secure the payment of a promissory note of the same date, executed by O’Hara to Cowles, for the sum of $1,200. The evidence shows that plaintiff purchased the cattle from O’Hara on the 10th day of July, and that he fully paid for them on the 15th day of July, 1874. The question is whether there was such actual change of possession that plaintiff can hold the property against Cowles, a subsequent mortgagee. There was a jury trial, and a verdict and judgment for defendant. Plaintiff appeals.</p>

The plaintiff avers in his petition, in substance, that one Samuel Forker acted as deputy treasurer of Tama county, for the period of about two years; that his services were reasonably worth the sum of twelve hundred dollars, and that said Forker had assigned his claim for the amount due him therefor to the plaintiff, for which amount he asks judgment. To the petition the defendant answered as follows: Count 1.

The defendant is the administrator of the estate of Michael Lower, deceased. The plaintiff, who is the widow of the decedent, filed a claim against the estate for money received in 1853.

Action at law, wherein tbe plaintiff seeks to recover damages for tbe use and occupation of certain premises by tbe defendant for its road bed and right of way.

<p>1. Slander: justification. A justification in an action of slander is sufficient if the proof in support of it be such as would sustain an indictment for the offense charged.</p> <p>2.---: good faith. One who believes himself to be possessed of knowledge, which if true, may affect the rights and interests of another, has the right in good faith to communicate his belief to the party interested.</p> <p>3.--: CANDIDATE FOB OFFICE: PRIVILEGED COMMUNICATION. Where one makes a charge affecting the character of another who is a candidate for office, to an elector shortly before the election, in good faith and without malice, he is not liable therefor, his statement being in the nature of a privileged communication.</p>

<p>1. Landlord and Tenant: occupancy by member op family. The occupancy by the mother, of a house belonging to her son, in the absence of an agreement to the contrary, is presumed, to be upon the condition that she shall pay whatever rent the premises are reasonably worth, but this presumption may be rebutted by an expressed understanding of the son that the occupancy is to be free.</p>

. This is an action of replevin for one Whittemore & Stephens piano, style E, No. 4718, of which the plaintiff alleges he is the owner, and to the immediate possession of which he claims he is entitled. The defendant alleges that as a duly elected and qualified constable he is entitled to the possession of the piano, in virtue of two writs of attachment, duly issued against H. R. Sutliff, and levied upon the piano as his property.

Plaintiff was the payee and holder of a negotiable promissory note made by one J. W. Peabody. The name of the appellant was written on the back of said note. The plaintiff commenced this suit against appellant and one Huffman, whose name was also indorsed on said note. The original petition charges the defendants as. guarantors. An amended petition charges defendants as makers of the note.

The plaintiffs claim that they have the legal title in fee simple to, and that they are entitled to the immediate possession of, lot twenty-six, in railroad addition to Decorah. The defendants deny that .plaintiffs are the owners of the premises described, and that they are entitled to the possession thereof.

Action on a promissory note executed by the defendant Squires, as principal, and the defendant Paine, as surety. After Paine’s signature there was written the word surety. This word the payee of the note erased, and then indorsed the note to the plaintiff. Paine claims that by the erasure he was released. The case was tried by the court, which found the following facts and conclusions of law: “1.

<p>1. Taxation: board of equalization: appeal. The fact that a city council irregularly exercised the authority conferred upon it as a board of equalization -will not deprive a property holder of the right of appeal to the Circuit Court.</p> <p>2.-:-: -. No time is prescribed by statute -within which an appeal may be taken, and no bond is required to be given by the appellant.</p> <p>3. -:-:--. While an appeal will not lie directly from the assessor to the Circuit Court, but complaint must first be made to the' city council, yet one who is aggrieved need not more than once make complaint to the council.</p>

Action to foreclose a mortgage. There was a decree and judgment as prayed for in plaintiff’s petition. The defendants, A. J. Morrison & Co.., and A. J. Morrison, appeal. The facts of the case appear in the opinion.

In chancery. The petition alleges that one Keyes recovered judgment against defendants, upon which their lands were sold on execution, and that defendant, a junior judgment creditor, redeemed from the sale and did not within ten days after the expiration of nine months enter upon the sale book the amount he was willing to credit upon his judgment, as provided by Code, § 3115, and that by the failure so to do defendant’s judgment became discharged.

Action to settle and determine the rights of the parties as to the title and ownership of certain real estate, consisting of less than forty acres of land not within a town plat, and which is underlaid with coal. , The plaintiff is the owner of the title subject to a lease or privilege granted of mining the coal, and claims the same as his homestead.

<p>1. Jury: challenge: error without prejudice. If a challenge for cause is overruled and the party making the challenge fails to exhaust his peremptory challenges, the action of the court in overruling the challenge, even if erroneous, is error without prejudice.</p> <p>2. Municipal Corporations: sidewalk: pleading. A city is liable for an accident caused by a defective sidewalk, although the walk may have been constructed by a private person without its order, if the defect were known to the proper officers of the city, or might have been known by the exercise of ordinary care in time to have repaired it before the accident. An allegation that the improvement was made by the city is supported by proof that it was made by a citizen.</p> <p>3. Evidence: conclusion or witness. A witness cannot be asked a question the answer to which would be simply his conclusion or opinion.</p>

The petition states that in 1857 the plaintiffs recovered a judgment against the defendants as partners, and in their partnership name of Chom & Dickerson, in the District Court of Mahaska county; that there is due and remaining unpaid on said judgment the sum of $108.58, with interest from February, 1859; that there is no partnership property out of which to satisfy said judgment.

The plaintiffs, residing and doing business as merchants at Eort Dodge, in this State, sold to the defendant their stock of goods and received therefor three promissory notes, executed by one Andrews and secured by a mortgage upon a house and lot in Allegan county, Michigan, and upon eighty aeres of land in Grand Traverse county, Michigan.

Action to recover damages for the publication of an alleged libel which it is claimed the defendants caused to be published in the “Inter-Ocean,” “Chicago Journal,” “Davenport Democrat,” and “Cedar Post.” The publication was denied.

. It is averred in the petition that on the 3d day of October, 1870, the defendant, as treasurer of Hamilton county, sold forty acres of land to one Estes, for the delinquent taxes of 1869; that subsequently said Estes, for a valuable consideration, assigned the certificate of purchase to the plaintiffs; ■ that more than three years have elapsed since said sale, and these plaintiffs are entitled to a treasurer’s deed for said land; that plaintiffs have tendered to defendant…

Action in chancery to quiet the title of certain lands in plaintiff'. Upon a trial on the merits, a decree was entered quieting the title of the undivided one-lialf of said lands in plaintiff, and the title of the remaining interest in defendant. From this decree defendant appeals. The facts of the case appear in the opinion.

Tins action was commenced on the 25th day of March, 1876. On the 21st day of December, 1876, plaintiffs filed a substituted petition.

Action at law to recover the possession of certain real estate, the plaintiff’s title being based on a tax deed.

Action to recover possession of real estate consisting of certain lots in the city of Dubuque. The plaintiff claims to recover by reason of his being the alleged owner of an absolute fee simple estate. The defendant’s answer discloses the fact that the plaintiff’s title and his right to recover depend on the validity of a tax sale and deed made in pursuance thereof.

Action at law. The petition avers that defendant is a municipal corporation of the state, and, as such, has fall control of streets and drainage within its limits; that the plaintiff is the owner of certain lots in the city situated at the southeast corner of Fourth street and Eleventh avenue, whereon his dwelling house occupied by him is situated.

Action at law. A demurrer to the answer of defendant to plaintiff’s petition was sustained. Defendant electing to stand upon his answer, judgment was entered against him upon the demurrer. He now appeals to this court.

The defendants were indicted for the crime of burglary. They were tried, convicted, and sentenced to the penitentiary for ten years. They appeal.

On the 27th day of September, 1875, at Ottumwa, the plaintiff obtained from- defendant a contract of insurance as follows: “Railway Passengers’ Assurance Go., of Hartford, Conn.., Station No. 458. $3000.

The plaintiff, as administratrix of her deceased husband, seeks to recover the damages accruing to the estate of her said husband by reason of his death, caused by a train of defendant falling through a bridge on defendant’s road, on the night of August 24th, 1875. The deceased was the engineer in charge of said train.

Action upon a promissory note. An answer and cross-petition was filed setting up tliat-the note was given with others for the purchase of a house and lot; that the title to be conveyed ivas to be free from incumbrance; that said property was incumbered, and defendants elected to rescind the contract, and asked that the notes be surrendered up for cancelation.

<p>1. Promissory Mote: consideration: corporation. Where the consideration for a promissory note was expressed in the note to be the stock of a railway corporation, and the directors of the corporation subsequently made an illegal and unauthorized increase in the stock of the company, it was held that such illegal increase would constitute'a defense to an action upon the note. Following Merrill v. Gamble, 615, ante.</p>

This is a proceeding to set aside a decree of divorce. The plaintiff avers in her petition that the decree was obtained by fraud and perjury; that notice was served by publication only, and that she had no actual knowledge of the pendency of the suit. The decree of divorce was obtained on the 21st day of April, 1875. The petition in this proceeding was filed on the 20th day of April, 1876, and was not verified by afiidavit.

<p>Í. Jurisdiction: justice of the peace. A justice of the peace cannot take jurisdiction of a controversy whose amount exceeds one hundred dollars, nor if an. action involving more than that amount be commenced before him can the defect be cured by rendering judgment for only a hundred dollars.</p> <p>2.--:---: judgment. But, where he has rendered judgment*-in an action of which he has jurisdiction for an amount which, including costs, exceeds one hundred dollars, he may enforce such judgment by garnishment, and if need be render judgment against the garnishee.</p>

This is an action for the partition of certain real estate owned by Stephen Stewart at the time of his death. The principal controversy between the parties is as to the ownership of the south half of the northeast quarter of section nine, township seventy-three, range seventeen. Appellants elaim that this was part of the real estate owned by Stephen Stewart at the time of his death. The appellees claim an interest in said property as the heirs of Francis Purdue, deceased.

Plaintiff is the owner of two lots in the city of Ottumwa, which front on fifth street. Upon the front line of said lots there is an Osage orange hedge. For the purpose of improving the street for public travel, the city raised the natural grade in front of plaintiff’s.lots about twelve feet. The crown of the embankment was made the full width of the street.

An information was filed before the mayor of the city of Oskaloosa, charging defendant with keeping a house of ill fame, contrary to an ordinance of the city. Upon a trial defendant was convicted and, appealing to the District Court, another trial and conviction followed. He now appeals to this court. The facts of the case involved in the questions decided appear in the opinion.

In chancery. The petition alleges that plaintiff is the owner of certain land situated in Franklin county, which he purchased of Margaret J. Tuttle; that defendant, McGregor, prior to plaintiff’s purchase of the land commenced an action in Hardin county against E. S. Tuttle, and levied an attachment issued therein upon the land; that when plaintiff purchased the land he had no knowledge of the suit; that, subsequently to his purchase, judgment was rendered in the action upon…

The defendant and Mrs. Allen Smith were jointly indicted for unlawfully exposing a child under the age of six years, of which they were alleged to be the parents, with intent- to abandon it. The defendant was tried and convicted. He appeals.

This action was commenced as an action at law. Plaintiffs, as assignees of one H. W. Collins, sought to recover of the defendant and appellant herein, upon an account for $34, an alleged balance due upon the purchase of certain promissory notes from said Collins, by said Reynolds, and claiming $650 more, as due upon a certain written contract. The original petition was filed on the 14th day of December, 1874.

<p> Appeal from Polk Circuit Court. </p> <p>Plaintiffs are dealers in billiard goods in the city of Chicago. One Lockwood was their agent in making sales. He went to a saloon in Des Moines occupied by one Haskell. The saloon was leased by G. W. Savery to Haskell. Lockwood offered to sell some goods, and Haskell stated to him that Savery wanted to buy some things, and that he would see Savery about it. Lockwood called again, and Haskell said he had seen Savery, and that Savery wanted some goods. He then gave an order for a bill of goods. Lockwood, knowing that Haskell was worthless, and that Savery was good for anything he ordered, directed plaintiffs, his principals, to ship the goods to Savery. Plaintiffs shipped the goods by the defendant express company, marked “G. W. Savery.”</p> <p>When the goods arrived at Des Moines defendant’s delivery • clerk took them to the Savery House, and some one there— but not G. W. Savery — told him to go over to the billiard saloon with them. He went there, and found Haskell, and asked him if he knew anything about it. He answered that the goods were his, and should have been so marked; that they ought not to have been marked Savery, and said, “Leave the goods here; I demand them; they are mine; I will pay the charges.” He paid the express charges, and receipted for them in these words: “G. W. Savery, per Haskell,” and the clerk delivered the goods to him.</p> <p>Savery did not authorize Haskell to send for goods or receive them. He did not know they had been ordered. He was not bound by his lease to Haskell to furnish any billiard material. The first he knew of the matter, a draft for the price of the goods was sent him for acceptance, which he refused. The goods have not been paid for by any one.</p> <p>This action was brought against the express company and Savery before a justice of the peace, to recover the value of the goods.</p> <p>A judgment was rendered against the express company alone. Savery recovered judgment against plaintiffs for costs.</p> <p>The express company appealed, and upon a trial in the Circuit Court a judgment was rendered against plaintiffs for costs. Plaintiffs appeal.</p>

Action to set aside a sheriff’s sale of certain land, to-wit: the north forty acres of a government subdivision of eighty acres, which the plaintiff has owned and occupied as a homestead from a time antecedent to the contraction of the debt upon which the sale was made. The plaintiff’s house is upon the south forty acres, the part not sold. Prior to the sale the plaintiff attempted to make a selection of his homestead.

Action in equity commenced in 1869, and tried in the court below by the first method; the object of the action being to set aside and cancel a conveyance of certain real estate made by the plaintiff to the defendant, Edward Dunne, because of the inadequacy of the consideration, fraud, and undue influence used in obtaining the same. The District Court entered a decree in accordance with the prayer, of the petition, and defendants appeal.

Action in equity. The petition alleges that Chas. Springer died owning the real estate in controversy, leaving the plaintiffs his heirs at law, and as such they claim to be the owners of said real estate.

This is a proceeding for the probate of a nuncupative will. Hpon a trial involving the merits of the case, the Circuit Court entered a decree establishing the will. Defendants appeal.

This is an action to enforce a mechanic’s lien against lot No. ten, block No. three, in Stuart, for the balance of a bill of lumber sold to the defendant, H. B. Seydel, and used in the erection of a building on said lot.

The defendant and Caroline Sheets were jointly indicted for the crime of incest. The defendant was alone tried, was found guilty, and sentenced to be confined in the penitentiary for the period of ten years. Defendant appeals.

The defendants, B. Bunkers & Co., were merchants dealing in hardware at Dyersville, Dubuque county. On the 2d day of June, 1875, they executed a chattel mortgage on their stock of hardware, to the defendant, H. D. Bunkers. On the 10th day of August, 1875, they made a general assignment, for the benefit of their creditors, to said H. D. Bunkers. The assignee took possession of the partnership property, and entered upon the discharge of his duties.

The petition in substance alleges that on the 27th day of April, 1872, a tax of five per cent was voted in aid of the Sioux City & Pembina Railroad by the voters of Johnson township, in Plymouth county; that on the 5th of June, 1872, a portion of the territory of Johnson township was formed into a new township, called Portland township; and that, in June, 1875, a portion of Portland township was organized into a new township, called Preston township, so that the territory…

This is an action to recbver taxes paid by plaintiff upon her property for the years 1869 and 1870.

Action to recover for certain real estate alleged to have been sold by defendant for plaintiff. Judgment for plaintiff. Defendant appeals.

Action on a judgment recovered>-by plaintiff in the “ County Court of Perth, in the Province of Ontario, Canada, in September, 1874.” The answer alleged that service of notice of the pendency of the action in Canada was made in this State, and that defendant was a resident of Iowa at the time of such service and rendition of the judgment and had been such for several years prior thereto.

Both parties claim title to the land in controversy, and the Circuit Court having found for the defendant and entered judgment accordingly, the plaintiff appeals.

The defendant is an attorney, practicing in the courts of this State, and this proceeding was brought for the purpose of disbarring him. There was a trial, judgment, and defendant appeals.

The plaintiff and E. E. Eelt were partners engaged in the business of purchasing and selling stock under the partnership name of E. E. Eelt & Co. There was a transaction in relation to some cattle, whereby either the partnership or said Pelt individually became indebted to the intervenor. The Circuit Court found that the partnership was not so indebted and the defendant and intervenor appeal.

<p> Appeal from Story District Court </p> <p>Action to set aside a tax deed. Decree for defendant. Plaintiff appeals.</p>

Action to foreclose a mortgage executed to secure certain promissory notes. There was a trial to the court without a jury and judgment for defendants. Plaintiff appeals.

Plaintiff seeks to recover damages of defendants for forcibly and maliciously breaking down plaintiff’s fences and crossing over his land, thereby destroying his growing crops.

Action in equity for the purpose of ascertaining and determining the title to certain lands. The plaintiff asks that certain conveyances made by Decatur county to the other defendants be set aside and the county required to convey the lands to him. Decree for plaintiff, and defendants appeal.

<p>Practice in the supreme court: assignment oe error.</p>