Volume 52 — Iowa Reports

The plaintiff claims to be the owner of certain lauds in Webster county, to-wit: N. W. ¿ of Sec. 22, Tp. 90, R. 29, west. lie avers that the same was sold for taxes July 13, 1865, and that a tax deed was executed to one Pitt Cooke, and recorded July 20, 1867; that Pitt Cooke conveyed to one Jay Cooke, and Jay Cooke to the plaintiff, as trustee.

The plaintiíf brought an action to establish and foreclose a vendor’s lien on real estate against the defendant, and M. 0. Tinsley, her husband. This was resisted by the defendant, who commenced an action against her lmsbaud to compel liim to convey to her the said real estate, the legal title to which was vested in him. These actions were consolidated, and a trial of the issues was had to the eourt.

The petition states that the plaintiff, an employe of the defendant, with other employes, was engaged in constructing a trim-table, and while so doing the employes of defendant so engaged with the plaintiff, “ negligently and carelessly, without using due cai-e, but with gross negligence, pushed aud threw from its balance a heavy piece of timber known as piling, on the hand of plaintiff, plaintiff at the time using due care in handling said timber,” whereby the plaintiff’…

The Independent School District of Montezuma obtained a judgment against the plaintiff Myers. Ilis co-plaintiff', Carl Schultz, became liable therefor by reason of having signed a bond to stay execution. Afterward the school district assigned the judgment to the defendant Wilson Beall, who, at the expiration of the stay, caused execution to issue and to be put into the hands of the defendant, Farmer, as sheriff of Poweshiek county.

The county of Osceola issued warrants in 1872, amounting to $24,040.19, and in 1873, amounting to $20,167.04. Upon the warrants issued during t-lie year 1872, judgments were recovered during said year against tlie county for the sum of $11,490, and -to pay the same and interest and costs, the county during said year, issued its negotiable judgment bonds, under the provisions of chapter 87, of the acts of the Fourteenth General Assembly, to the amount of $11,700.

The plaintiff, for canse of claim against the defendants, alleges that on the 22d day of May, 1875, the defendant I. Millisack executed his promissory note to the plaintiff for $240, and that in January, 1878, Millisack sold and delivered to the defendant Swaim a bill of goods or merchandise consisting of a store in Albia, and as a part consideration the defendant Swaim agreed with Millisack and plaintiff to assume said note, and promised to pay the same.

- The plaintiff, Gaston, commenced an action against the defendant for a balance alleged to be due upon an account for legal services in the foreclosure of a mortgage.

cause was sent to a referee to be tried upon written testimony taken in pursuance of an order of court. Defendants filed a cross bill claiming title to tlie land, and asking that it be quieted in them. Upon tlie report of tlie referee, a decree was rendered dismissing plaintiff’s petition and granting tlie relief prayed for in defendants’ cross bill. Plaintiffs appeal.

The plaintiff and defendant are the administrators of the estate of John Drummond, deceased. This action was commenced by the plaintiff to recover certain personal property of tlie estate which bad been set off to her as the widow of said Drummond, by tlie appraisers appointed by the court to appraise the property of said estate.

Plaintiee filed a claim in the Circuit Court, against the estate of his father, of which defendant is administrator, for §3,200 on account of services rendered iu taking care of decedent and his wife, and for services in taking care of the farm of intestate for sixteen years, ending September, 187G, and for $00 cash loaned in 1861. The court refused to allow the claim, and from this action plaintiff appeals.

The plaintiffs, O. K. Peck, surviving partner of tlie firm of Durfee & Peck, and O. B. Taylor, Geo. II. Durfee and Charles B. Taylor, executors of tbe estate of E. II.

The plaintiff as administrator of the estate of Wm. M. Hart, deceased, brings this action upon a promissory note of which the following is a copy: “§1,200. Princeton, Mo., September 1, 1876. “ One year after date, we or either of ns, promise to pay to the order of Wm. M. Hart the sum of twelve hundred dollars, for value received, to bear ten per cent interest per annum from date.

It is stated in the petition that the “ defendants unlawfully, willfully and maliciously killed David Golden,” and this action is brought to recover damages caused by said act. The answer consisted of a general denial. There was a trial before the court.

The judgment was rendered in the court below for $140 in an action of replevin brought by this defendant against Lawrence, tire plaintiff in this action, and one Randall to re23levy an organ. Lawrence had allowed Randall to leave the organ in his'barn. Afterward Randall removed it, Lawrence at no time claiming any interest in it.

Tiie plaintiff leased certain real estate to the defendant for which the latter agreed to deliver the former a certain portion of the crops. After the lease, and before the rent accrued, the plaintiff conveyed the demised premises to one Yeiser by general warranty deed. This action is brought to recover the rent, and is resisted on the ground that it passed by the deed to Yeiser. There was also pleaded a counter-claim.

Action to foreclose a mortgage on real estate executed on the 28th day of February, 1877, and recorded on the succeeding day. John PI.

On the 7th day of June, 1877, the following indictment was returned into court by the grand jury of Johnson county.

It is averred in the petition that on the 28th day of June, 1877, the defendant, Jameson, executed and delivered bis written order to the plaintiff for a fire-proof safe, for which said Jameson was to pay $192, in four equal installments, in six, eight, ten and twelve months, for which sums he gave his four promissory notes; that said order provided that until said notes were paid the title to said safe should not pass, but that the same should remain the property of…

This cause was before us upon a former appeal, when the judgment of the court below sustaining a demurrer to the petition was reversed. See 44 Iowa, 512. The cause being remanded the defendants filed an answer, and the cause was referred to F. M. Davenport, Esq., to report the facts, witli Ins conclusions of law. On the 26th of March, 1878, the referee filed the following report: “1.

•The defendant moved the court in the case to set aside the judgment rendered against him, and to grant a new trial on the ground that he was served by publication only. The motion was overruled, and from the decision defendant appeals. The facts of the case are stated with opinion.

Action for mandamus. The plaintiff is the holder of an order issued by the township cleric of the township of Emmetsbnrg, under the direction of the township trustees. The order was issued to one O’Connell, who was at that time, and had been for. some years, road supervisor in the township, and was given in pursuance of a settlement between him and the trustees.

<p> Appeal from, Bremer District Court. </p> <p>The defendant was convicted of the crime of adultery, and sentenced to confinement in the penitentiary for two years. He now prosecutes this appeal.</p>

The defendant, on the 9th day of September, 1876, leased -of the plaintiff a certain farm for the term of six years from March 1, 1877, and agreed to pay as rent therefor the sum of nine hundred dollars yearly, payable in equal semi-annual installments, on the first day of February and the last day of November of each year. The defendant also agreed in the contract of lease to pay all the taxes levied upon the demised property during the term.

The plaintiffs, as executors of the estate of Susan W. Coffin, deceased, claim of the defendants seven hundred and fifty dollars for rent of certain premises owned by the deceased, from October 18G7 to February 1871. The cause was tried to the court, and judgment was rendered in favor of the plaintiffs for three hundred dollars, against the appellant, Leander Keyes.

Action to recover for an elevator and other property alleged to have been burned by a fire set out by the defendant .while operating one of its trains. There was a trial by jury, and verdict and judgment were rendered for the plaintiff. Defendant appeals.

Appeal from, Tama District Oonri Action in equity to set aside a judgment by confession. The relief asked was granted and defendants appeal.

This is a suit in equity. The defendants answered the petition, to which answer the plaintiff demurred. The demurrer was sustained, and defendant refusing to answer further a judgment and decree was entered as prayed in the petition.

The defendant was indicted for an assault with an intent to inflict a great bodily injury upon George Ruth, was tried, convicted of an assault, and fined $25 and costs. He' appeals.

The plaintiff holds certain claims against the Burlington & Southwestern Railway Company, amounting to about ten thousand dollars, and brings this action to recover against the defendants as executors of the estate- of E. B. Ward upon an alleged agreement of Ward to pay the claims. The defendants deny the agreement. Trial without a jury. Judgment for defendants. Plaintiff appeals.

Action to recover of defendants $548.10. The petition alleges that the defendants received for plaintiff the sum of $5,365, and paid over to him only $4,816.90, and refuse to pay the balance. The defendants do not deny the receipt of tbe money as alleged, but aver that they have fully paid over and accounted for the same. There ivas a trial by jury, and verdict and judgment were rendered for tbe jilaintiff for $264.87. The defendants appeal.

The defendant is county superintendent. The plaintiff applied to him for a teacher’s certificate to enable her to teach in the public schools. She was examined touching her qualifications and the certificate refused. The object of this action is by mandamus to compel the defendant to issue such certificate. The question as to the power or jurisdiction of the court was raised by demurrer and answer.

Appeal-from Wright District Court. The plaintiff commenced his action against the defendants, Ray B. Griffin and Sarah Griffin, to recover judgment upon certain promissory notes, and to foreclose a mortgage given to secure the same. The Delaware County Bank and Betsey Haines were made parties defendant to the action upon the alleged ground that they had liens upon the mortgaged property which were junior and inferior to plaintiff’s mortgage.

Action upon a promissory note executed by the defendants to the plaintiff'for borrowed money. The petition shows that the plaintiff is a corporation organized under an act of congress. The defendants admit the execution of the note, but aver that it was given by way of renewal of another note, aiid for money borrowed under a usurious contract, to-wit: A contract to pay interest at the rate of twenty-four per cent per annum.

Replevin for a large quantity of wheat and oats. Tbe plaintiff claims tbe absolute ownership of tbe grain, and alleges that tbe same was raiéed and grown by him. The petition shows the alleged canse of detention is that defendant as sheriff levied upon the grain under an execution issued on a 'judgment against Godfried Houser, and in favor of J. L Case & Oo.

Action at law to recover for injuries sustained by plaintiff from being thrown out of a wagon while riding in a street of tbe city of Grlenwood. It is alleged that tbe accident was caused by tbe defective and dangerous condition of the street. There was a verdict and judgment for plaintiff; defendant appeals.

<p> Appeal from Hardin District Co%irt. </p> <p>The petition in substance alleges that the defendant, Austin McGill', is indebted to the plaintiff on four promissory notes in the sum of $900 to $1,000, for which plaintiff brought suit in February, 1877, and caused to be attached lot four, in block nine, in the town of Ackley, that Austin McGill is the owner of said lot four, and all his other property is incumbered to its full value, and he is insolvent; that a number of years ago, being largely indebted, and in insolvent circumstances, he caused said lot to be conveyed to his wife, the defendant Sarah McGill, for the purpose of covering the same up and putting it beyond the reach of creditors, and on the 13th day of April, 1877, he and his wife conveyed.the said property to the defendant Emma McGill, an unmarried daughter living in their family, for the purpose of covering it up and putting it beyond the reach of creditors, and the defendant Emma paid no consideration for the property, and the title is now held by her fraudulently; that the said Austin, and his daughter and wife, are now about to negotiate a sale of the property and convert it into money for the purpose of putting it beyond the reach of creditors. The plaintiff asks that the defendants be enjoined from disposing of the property until the determination of the attachment suit. On the 24th of February, 1879, a temporary injunction was allowed. On the 24th of March, the defendants appeared before the judge allowing the injunction, and filed a demurrer to the petition, which was overruled. Thereupon the defendants filed an answer denying all the allegations of fraud, and alleging that the defendant Sarah McGill purchased the property in good faith and for a valuable consideration from one William J. Ackley, and conveyed the same to the defendant Emma McGill, in good faith and for a valuable consideration. Upon the filing of this answer the defendants moved to dissolve the temporary injunction. The motion was overruled and it was ordered that the injunction stand until final hearing. The defendants appeal.</p>

Ti-ie plaintiff alleges in substance that be entered into an unwritten contract with the board of directors of the defendant to teach the graded school of defendant for eight months; four months at forty dollars per month, and a winter term of four months at fifty dollars per month; that plaintiff, on the 16th day of September, 1S78, entered upon the discharge of his duties and continued to teach for two months, when, without any cause, he was discharged.

The plaintiffs allege that they are each civil townships in the county of Palo Alto. The defendants are members of tlie board of supervisors of said county.

<p> Appeal from Jasper Circuit Court. </p> <p>Action at law. An attachment was issued j tbe petition, as cause therefor, alleging that the defendant is about to remove bis property out of the State without leaving sufficient remaining for the payment of his debts. The answer alleges that tbe property, a team of liorses, wagon and harness, is exempt from seizure for the reason that defendant, as a farmer, habitually earned liis living by the use thereof; it also alleges plaintiff had no reasonable or probable cause to believe the matters alleged*as the ground of the attachment, and they were in fact not true. Defendant claims to recover damages for the wrongful issuing of the attachment. There was a verdict, and judgment for plaintiff. Defendant appeals.</p>

Action in chancery to rescind a contract for the sale of lands and to cancel a deed executed therefor by plaintiff, and to quiet the title in plaintiff There was a decree granting the relief prayed for in the petition. Defendants appeal. The facts of the case appear in the opinion

Clay District Cow't. This is an action for a writ of mandamus to compel the board of supervisors of Olay county to refund certain alleged illegal taxes which the plaintiff paid into the treasury of said county June 20, 1873, amounting to $310.05. The defendants plead the statute of limitations.

The defendants, T. Cumins & Co., commenced an action against Joseph L. Bingham and Hannah Bingham, his wife, to subject certain real estate, the title to which was in said Hannah Bingham, to the payment of a judgment against the said husband upon a certain stay bond.

Action in attachment upon a promissory note executed by the defendants, T. II. Burrows, Walter Watts and Warren Prentice. The property attached is twenty-four head of cattle, in the possession of one Maurice Burrows, who held them under a contract whereby after feeding the cattle for a certain time he was to become the owner of one-half. The property was attached as the property of Walter Watts.

Replevin. There ivas a verdict and judgment for defendants. Plaintiff appeals. The facts of the case appear in the opinion.

The defendant was indicted for the crime of murder, was tried, convicted of murder in the second degree, and sentenced to confinement in the penitentiary for the period of fourteen years. He appeals.

Action upon a warrant or order for the sum of $1200, drawn by the defendant and payable to the plaintiff.

Action on a promissory note and to foreclose a mortgage. The note is dated Nov. 22d,' 1876; is payable to W. A. Fuller or order, and on its face purports to be executed by D. B. Morse and Eliza Fuller. The mortgage was executed June lltli, 1877, and is conditioned for the payment of a note executed by D. B. Morse, payable to W. A. Fuller. The note is accurately described in the mortgage with the exceptions above indicated.

. Action upon a judgment. The debt upon which the judgment was rendered was created while the defendant was acting in a fiduciary character, which fact appears upon the face of iüie record entry of the judgment. The defendant after the rendition of the judgment was discharged in bankruptcy, which tact is pleaded as a defense. The defendant also pleads the statute of limitations. There was a trial without a jury, and judgment was rendered for the plaintiff.

Action to recover the value of certain goods delivered to flie defendant at Grinnell, to be transported to Avoca. There was a trial by jury. Verdict and judgment for the defendant, and the plaintiff appeals.

On tlie 16tli day of April, 1810, the plaintiff, together with one George Drain, entered into* a written contract with the defendant, wherein the plaintiff and Drain agreed to plough, prepare the ground and set on lines to be designated by O. A. Gibbs, around the N. W. ¿ of section 28, 79, 38, in Shelby county, two miles of Osage Orange hedge, to cultivate, watch and take care of said hedge, and make it a good and lawful fence, sufficient to turn stock, within lour years…

Action to recover for personal injuries sustained by the plaintiff’s intestate, one John Luby.

Action to foreclose a mortgage executed by defendant, William Dickerson. Other parties bolding liens upon the land were made defendants. Of these S. D. Obillson and the Iowa Loan and Trust Company, whose claims or liens were by the decree declared to be inferior to the liens of their co-defendants, now appeal. The facts of the case appear in the opinion.

It is averred in the petition that the plaintiff is the oiyner of certain real estate abutting on Second street, in the eity of Clinton; that in the 'years 1868 and 1869 said city by its council established the grade on said Second street, and ordered the owners of property abutting on said street to macadamize the same in front of their property with rubble stone, including the gutters on said street, which were to be paved with stone; that the plaintiff and other owners of…

This is an original proceeding in this court. The petition was presented to one of tlie judges, who ordered that a writ of certiorari issue directed to tbe defendant, to certify certain records and proceeding to this court, to the end they might be reviewed as provided by law. The defendant having made his return, the questions involved are stated in the opinion.

The plaintiff commenced this action against the defendants, A. R. Wilson and E. P. Wilson, upon a promissory note for the sum of $2,900.00, dated March 15th, 1878, and for the foreclosure of a mortgage of the same da.te, executed by A. R. and E. P. Wilson to secure 'said note. The petition alleges that Walter G-.

The city of Des Moines, by the proclamation of its mayor, issued on the 10th day of September, 1874, offered a reward of $500 to any person who would give such information as would lead to the arrest and conviction of the murderer or murderers of Ella Barrett. The offer of said reward was authorized by a resolution of the city council.

Action to recover specific personal property. Trial to the court, judgment for the intervenor and defendant alone appeals.

This was a proceeding for the probate of a will. Lincoln Convey, son of tbe decedent, contested tbe sufficiency of tbe will, on the ground that the instrument was not executed by Lawrence Convey; that he was of unsound mind, was under tbe influence of intoxicating liquors, and his signature was procured through duress and undue influence. The cause was tried to a jury, and a verdict found against the contestant, and the will was admitted to probate. Tlie contestant appeals.

The abstract of title exhibited with his petition showed a patent from the United States to the plaintiff dated November 1, 1867. The defendant by bis answer admitted that the plaintiff held a patent as averred in the petition, but alleged as an equitable defense and counter-claim that one Jas.

The plaintiff filed a claim in the Circuit Court of Polk county, sitting as a court of probate, against the estate of N. T. Yorse, deceased, of which defendant is executor. The claim was allowed and defendant appeals. The facts of the case appear in the opinion.

Appeal f rom Glwvbon Gwouit Oowrt. The petition states that the defendant “did maliciously, wantonly and oppressively assault and beat said James Reddin with a whip commonly called a rawhide, * * * in a cruel, malicious and wanton manner, with intent to disgrace.” There was a trial by jury,' verdict and judgment for the. plaintiff for five hundred dollars. The defendant appeals.

Two actions bearing the same title, the one in forcible entry and detainer, and the other to recover for rent, were prosecuted by plaintiff against defendant before a justice of the peace, where judgments were rendered for plaintiff. Upon an appeal to the Circuit Court, like judgment was entered. Defendant appeals in each case. The causes having been tried upon the same testimony, are submitted together.

Action to recover forty acres of land in Polk county. The ■defendant claimed title to an undivided seven-fortieths of the land, by virtue of a tax deed made in pursuance of a sale for ■toases of saiddand on the 5th. day of November, 1873. The tax deed describes the land conveyed, as the “undivided seven-fortieths ” of the forty acres. The defendant also filed a cross-bill, asking that his title to the seven-fortieths.of the land be quieted in him.

Action for mandamus to compel the defendant as treasurer of Lee county to execute to the plaintiff a tax deed. The sale was regular; the plaintiff is the holder of the tax certificate; more than three years have elapsed since the sale was made,, and due notice was served upon the party entitled to it more than ninety days prior to the commencement of the action..

Action to rescind a conveyance made in pursuance of a contract for an exchange of lands. The plaintiff conveyed to the ■ defendant an improved farm of one hundred and twenty acres in Wayne county for three hundred and twenty acres of unimproved land in Crawford county, and $100. He avers that he was induced to make the trade by the fraudulent representations of the defendant. Other facts are stated in the opinion. There was a decree for the plaintiff. Defendant appeals.

The defendant was indicted jointly with Asa Perigo, for the larceny of two three year old colts, of the value of one hundred and seventy-five dollars. The defendant was convicted and sentenced to the penitentiary for six months. Tie appeals.

The defendants were charged with having obstructed and incumbered a certain public highway on the^first day of Jan-nary, 1875, and witli having maintained the obstruction until the finding of the indictment. Yerdict and judgment having been rendered against them, they appeal.

Action to forclose a mortgage. The defendant filed a motion for a continuance, which was overruled. Decree having-been rendered against him, he appeals.

A petition was filed, asking a writ of attachment. The verification, made by an attorney, was as follows: “the facts set forth in the foregoing petition as grounds for the attachment, and the same are within my own knowledge, and the same are true as I verily believe.” The intervenor, claiming the property attached by virtue of a general assignment made to him by the defendant, filed a motion t© quash the attachment, because the petition was not properly and sufficiently…

In oiiancery. Ah injunction was allowed upon plaintiff’s-petition, and from this order defendants appeal. Tlie plaintiff' moved for a default against defendants; his motion was overruled, and from this decision he appeals.

<p>1. Replevin: evidence: notice. In an action of replevin, by the assignees of a lease to recover the landlord’s share of the crop, which had been levied upon by defendant under an execution against the landlord, held, that evidence of notice to the defendant and the officer of plaintiffs’ ownership, given before the levy, was material and should have been admitted.</p> <p>2.--: lease: assignment oe. While the landlord has no property in the crop of his tenant until matured and his portion is set apart, he may make an assignment of his lease, and such assignment, when valid, vests in the assignee the right to the rent when so set apart, and he may maintain replevin to recover it from one who levies upon and takes possession of it as the property of the landlord, with notice of the assignment.</p> <p>3. -: title to office. The legality of an officer’s title to his office cannot be determined in an action in replevin to which he is not a party.</p>

Action to recover the possession of forty acres of land. An equitable defense was pleaded by defendants, and the cause was submitted to the court without a jury, and judgment rendered for plaintiff. Defendants appeal.

The plaintiff filed his amended petition, alleging that the defendant was engaged in the practice of law in Adel, Dallas county, and on or about the 5th day of April, 1877, the plaintiff and defendant entered into a verbal agreement, by which the defendant agreed to sell his law business to plaintiff, including collections on hand and correspondence, office furniture and good will, the defendant at the same time, as apart of said agreement, agreeing that he would, from and…

The lands constituted a part of the railroad grant, approved May 15th, 1856, and are situate within the six mile limit. Under the act of Congress and legislation of the State the- title thereto vested in the- Oeclar Rapids and Missouri River Railroad Co., and tlie plaintiff is its -grantee.

The petition stated that plaintiff was the absolute owner of certain described real estate; that tbe defendants claimed some interest therein by virtue of an alleged tax sale and deed; that tbe plaintiff was in the actual possession of tbe premises. The relief asked was that tbe tax sale and deed be declared void, and the title quieted in the plaintiff.

Tiie plaintiff is a married woman. Her husband, Martin Russell, is a farmer. He owns no real estate, but rents land from year to year,.which be cultivates. The'plaintiff performs tlie ordinary duties of a housewife without the aid of hired help, and she generally assists her husband in planting and gathering corn, loading and stacking bay, etc.; but slie_ lias at no time been engaged in any business separate from her bus-band.

This action was brought on the following instrument; “'This indenture,made this third day of February, A. D. 1874 (eighteen hundred and seventy-four), between Michael Churchman and Ilellena Churchman, his wife, of Warren county, and State of Iowa, of the first part, and Casper Weil, of Warren county, and State of Iowa, of the second part, witnesseth: “That the party of the first part, for the consideration of one thousand, three hundred and fifty-three dollars, the receipt…

On the 10th day of February, 1877, the guardians of the person and estate of the plaintiff recovered a judgment against the defendant Thomas A. Walker, for $914. An execution Was issued upon said judgment, and returned unsatisfied for want of property whereon to levy. The debt on which said judgment was rendered was contracted November 3rd, 1870, by the sale of certain real estate by plaintiffs to the said Walker for the sum of $20,000.

Appeal'from Hardin Ci/rouit Court. Action in attachment against the, defendant O. A. Lundy.. The intervenors, C. Hardin & Sons, claim the attached property by virtue of a chattel mortgage executed to them by one L. J. Lundy. The property was formerly owned by defendant C. A. Lundy. Prior to the attachment it was sold by him to L. J. Lundy, and by the latter mortgaged to C. Ilardin & Sons, and the mortgage thus executed constitutes the basis of their claim in this case.

Action to establish a disputed corner. The petition states that John Parrish and O. W. Wright are each the owners of land contiguous to the disputed corner, and that Wright is a non-resident of Guthrie county, in which the land 'is situated, and is unknown. The petition was not sworn to, nor was any affidavit filed showing that Wright was a non-resident of the county and unknown.

■ Action in equity to obtain partition of real estate. The ■court in substance granted the relief asked as to the defendant Thos. A. McClain, and the latter appeals. The relief asked as to Davenport was refused, and the court refused to allow, as a part of the taxable costs, a reasonable compensation for plaintiff’s attorneys. From these portions of the decree the plaintiff appeals.

The plaintiff, as administratrix of the estate of V. R. Perigo, deceased, alleged that through the negligence of the ■defendant an injury was inflicted upon the said V. R. Perigo, causing his death, and claims on account thereof the sum of $20,000. There was a jury trial, and a verdict and judgment for plaintiff for $5,000. The defendant appeals.

This is a proceeding to assess tbe damage sustained by defendant on account of a street laid off by plaintiff upon land owned by defendant. There was a judgment for defendant for tbe sum of $150, and for part of tbe costs of tbe proceedings. The defendant appeals.

Appeal from, Harrison District Court- The indictment charged that the defendant “did unlawfully, willfully, and feloniously, administer to one Sumida Purcell, who was then and there a pregnant woman, certain drugs and substances, and did then and there, unlawfully * use a certain instrument * * with intent-then and there, and thereby, to procure the miscarriage of the said Sumida Purcell, such miscarriage * * not being necessary to, save her life.” There was a verdict of…

86 damages, and $37770, costs; that of said judgment about $2,003.30 thereof was rendered on account of orders issued on the school-house fund, about $840.92 on account of orders on the teachers’ fund, and about $1,734.64 thereof on account of orders issued on the contingent fund;” that said judgment is wholly unpaid, and at a time when defendant’s board of directors were legally assembled “ the plaintiff demanded of said board the payment of said judgment by orders on the…

These actions were commenced at law, but upon the filing of amended petitions were transferred to the- chancery side of the court. The causes were sent to a referee and judgment for the plaintiff rendered upon his report. Defendant appeals. The facts appear in the opinion.

Action to recover for injuries to certain real estate, caused “by the city changing tbe grade and excavating the streets upon which the property is situated. There was a verdict and judgment for plaintiff in the sum of $2,000. Defendant appeals.

On the 4th day of April, 1877, at Hampton, Franklin Co., the defendant executed and delivered to an agent of the plaintiff an instrument in writing, of which. the following is a copy: “Viotok Scale Company: — Please send me from Moline one 4 ton scale and beam box, and. one No. 7 Dormant scale with .drop lever; 4 ton scale to have double brass beam.

When this action was commenced the plaintiff was, and had been for a time previous, Mayor of the city of. Clinton, in the county of Clinton. As such mayor there were brought before him for trial a number of persons charged with violating the laws of the state, the specific offense being intoxication, which was not punishable under the ordinances of the city.

Appeal from Polls Circuit Court. Action on a promissory note. Trial to the court, judgment for the defendant, and plaintiff appeals.

Action in chancery to annul and set aside, a decree of the court settling the rights of plaintiff as widow and devisee of her deceased husband. Upon the final hearing the .petition of plaintiff was dismissed, and she appeals to this court. The facts of the case appear in the opinion.

Under a claim that tlie title to the lands originally in controversy in this action passed to it under the swamp land grant, the county of Carroll, in 1863, conveyed in pursuance of a previous contract the said lands to the intervenor. In 1866 the county brought an action to set aside said contract and conveyance, and quiet the title in the county. In March, 1877, said action was determined, the petition of the county •dismissed and the title quieted.

Action to recover for injuries caused by the negligence of defendant, which resulted in the death of plaintiff’s intestate. A demurrer to the petition was sustained, and judgment rendered thereon for defendant. Plaintiff appeals.

Ajppeal from Mahaska Circuit Court. Action in equity upon a promissory note. The note was-executed by one Ooonrod as principal and the defendant as surety, and made payable to one Joseph P. Phinny, who died intestate March 22, 1867. The plaintiffs are the heirs of the intestate, and claim to be the owners of the note as such heirs. No letters of administration ever issued upon the intestate’s estate.

On the 20th daj'- of July, 1876, the defendant Mary L.. Wright entered -into a written contract with Alexander Hood,, by which it was agreed that said Hood would furnish all the materials, and construct and complete a building according to . certain plans and specifications, upon a lot owned by the defendant. The consideration to be paid by- defendant was. $5,000, payable in installments, as the work progressed.

Action to recover ninety dollars for services as an attorney at law in prosecuting certain liquor cases. There was a trial by jury and verdict and judgment were rendered for the plaintiff. The defendant appeals.

The plaintiff took passage on tbe defendant’s cars at Delhi for Delaware Center, a distance of about four miles, and after riding a small portion of the distance was forcibly removed from the cars by tbe conductor. He brings this action to recover tbe damages which he alleges that he sustained by reason of the expulsion. The evidence in regard to the circumstances of the expulsion is somewhat conflicting.

Action for an injunction to restrain the defendants from selling a stock of goods. The plaintiff claims to have a landlord’s lien upon the goods. In October, 1877, the jfiaintiff leased a store-room to the defendant Stearns, for tho period of two years, at a monthly rental of '$55, payable monthly in advance. Stearns placed a stock of goods in the store-room, and proceeded to sell the same at retail, in the ordinary method of such trade, until February, 1778.

Appeal from Polh District Cowrt, This is an action for the recovery of an alleged balance due the plaintiff for the erection of a Catholic Church in Folk County, Iowa, under a written contract with the defendant. There was a jury trial and verdict and judgment for plaintiff for $913. The defendant appeals.

The plaintiff’s petition alleges that John D. Rivers made and delivered to plaintiff three promissory notes, viz., one principal note for $4,000, due April 3, 1878, and two interest notes for $200 each, due respectively October 1, 1877, and April 1, 1878, all payable at Montpelier, Vermont, with ten per cent interest after maturity, and still unpaid; that to secure the payment of said notes and four other interest notes, since paid, the said Rivers and his wife at tbe same…

In May, 1870, plaintiff brought his action at law against the defendant Tod, to recover the W. of the S. E. J, and lots 3 and 4, section 27, 92, 28. In May, 1871, there was a trial and judgment for the defendant. Upon the trial of the. cause the plaintiff established a complete chain of title to all the lands in controversy. Plaintiff appealed to this court and the judgment was reversed. See 34 Iowa, page 18.

Action to recover the possession -of land -situated in .Boone county. The answer of the defendants denies generally all the allegations of the petition, and pi etuis the bar of the statute of limitations, alleging that defendants and their grantors had been for more than ten years in the actual, notorious and adverse possession of the land under claim of title and right. A verdict and judgment were had ibr defendants; plaintiffs appeal.

The petition contains several counts, and it is therein stated in substance that tlie defendant sold to tlie husband of the plaintiff, at various times between September, 1875, and March, 1S77, intoxicating liquor wliereby he became intoxicated, and thereby the plaintiff and her family were injured in their means of support. There was a general denial of the allegations of the petition, trial by jury, verdict and judgment for plaintiff, and defendant appeals.

Action to foreclose a mortgage executed by the defendant Cloud to Fairall & Bonorden, to secure certain promissory notes which were sold and indorsed by Fairall & Bonorden, before maturity, to the plaintiff. The defendant Ann Ilammersham is made a party as claiming title to the land paramount to the mortgage. The land was formerly owned by one Burns. While he owned it it was sold upon execution upon a judgment against him, and bought at execution sale by one Schwab.

Adalbert 11. E. Rhode, deceased, at the time of his death held an insurance policy on his life in the Mutual Benefit Life Insurance Company. The policy was for $1,000, payable to the assured, his executors, administrators or assigns. The plaintiff is the widow of said Rhode, and he left no children surviving him, and never had any children as the fruits of his marriage with plaintiff.

Ti-ie plaintiff filed a petition in equity alleging that R. Gr.

On the 19th day of March, 1877, N. T. Yorse executed and delivered to the plaintiff bis promissory note for the sum of eight hundred and forty-four dollars. Afterwards the said N. T. Yorse died, and C.’ S. Yorse wras duly appointed administrator of bis estate. The plaintiff’ filed the note in the court below as a claim against tbe estate.

Action to replevy two horses. The plaintiffs claim the property by virtue of a chattel mortgage executed to them by Thomas Welsh and Wm. Welsh, jr., interveners. The defendant Woleben claims to hold it as constable.- Sometime previous to the commencemeut of this action the defendant 'Tuttle obtained a judgment against one Wm. Welsh, sen., father of the interveners, Thomas Welsh and Wm.

Affeal from B-uena Vista District Court. Action at law to eharge defendants as guarantors of two promissory notes. The cause was tried to the court without a jury, and judgment was rendered for defendants. Plaintiff appeals.

The defendant was indicted, tried, convicted, and sentenced to the penitentiary for life, for the murder of one John IL Stough. lie appeals to this court for a reversal of the judgment against him.

Action to recover possession of a piano which had been levied upon by the defendant as sheriff, by virtue of an execution against W. T. Willey. There was a trial to the court, a finding of facts and judgment for the defendant. The plaintiff appeals.

<p>3. Parent and Child: custody of children: divorce. When parents are living apart the courts may make such orders regarding the custody of their children as their welfare demands, and may, during the pendency of proceedings for divorce between the parents, award the custody of the children to either parent, or provide for their separate maintenance, being governed always by a regard for the welfare of the children.</p>

Replevin for wheat and other grain. The cause was tried to the court without a jury, and judgment rendered for plaintiff; defendants appeal. The facts of the case appear in the opinion.

This is an action to redeem certain real estate from a sale for taxes. The property was sold by the treasurer of the county to the defendant «for the delinquent taxes for the year 1872. The sale was had on the 6th day of October, 1S73. The plaintiffs purchased said property of one Russell, and having paid the contract price they sold the same to Wm. F. Alger, and authorized him to receive a conveyance from Russell. Russell conveyed to Alger in February, 1876.

' Action to recover for the value of the right of way of defendants’ railroad over plaintiff’s land. The cause was submitted to the court without a jury, and judgment rendered for plaintiff. Defendant appeals.

Petition for a new trial under the provisions of section 3154 of the Code, on the ground fraud was practiced on the court by the successful party. A demurrer to the petition was overruled. There was a trial to the court and the petition dismissed. The plaintiffs appeal.

Action to recover for damages alleged to have been sustained by plaintiff by reason of the failure of the defendant to take and pay for certain castings according to the terms of a certain contract existing between the parties. In January, 1873, the defendant was engaged in the manufacture of school furniture, and the plaintiff' was engaged in the manufacture of castings for school furniture.

Aotton upon a promissory note commenced before a justice of'the peace, where a judgment was rendered for defendant; a like judgment was rendered in the Circuit Court upon an appeal. The- plaintiffs now appeal to this court, the Circuit Court certifying tbe questions to be presented here.

This action is brought to. declare void a judgment held by O. II. Baker, and also judgments held by other parties defendants, and to decree them junior and inferior to a judgment held by the plaintiff, to set aside and cancels sheriff’s sale to O. II. Baker, and to restrain, by injunction, the sheriff from executing a deed to him. The defendant 0. IT.

Action at law to recover real estate. A demurrer to the third division of the answer was sustained, and the defendant appeals.

The plaintiff caused garnishee process to be served upon defendant, claiming that he was the debtor of one C. E. Weston. The garnishee answered, admitting the indebtedness. The creditor Weston intervened, claiming that the indebtedness occurred on account of personal service rendered by him within three months, and that he is the head of a family, and that the debt is, therefore, exempt from the garnishee process.

<p>1. Practice: pleading-: amendment. The court may, in its discretion, allow amendments to the pleadings after a decision has been announced in the case, and a memorandum thereof made on the calendar.</p> <p>2. Mechanic’s Lien: redemption from judicial sale: judgment. Where in proceedings to establish a mechanic’s lien against property which had been sold under a decree of foreclosure, since the claim accrued, the mortgagor and his wife, who had parted with the equity of redemption, were the only parties defendant, it was held that the judgment would not authorize the holder of the claim to redeem from the foreclosure sale.</p>

Action upon a bond executed by defendant Brown, and two sureties, conditioned tbat Brown, while in the employment of plaintiff as book-keeper and clerk, shall render true account for and pay .all moneys coming into bis hands in the course of his employment to plaintiff. The cause was continued as to the .sureties. Brown answered, admitting the receipt of the moneys charged in the petition, but alleging that he had accounted for and paid over the same.

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

O. H. Lewis, judge of the Harrison District Court, for a temporary injunction, against the defendants, and the appointment of a receiver.

Action for partition. The land was owned originally by one George Parsons, who died intestate. The plaintiff avers that he owns -fa of the land, and that each of the defendants owns ^s7 except Thos. Tearney, who owns ■§-£. The defendant Crab-tree denies that the plaintiff owns any portion of the land, and avers that he, Crabtree, owns the whole. The court found that the defendant Thos.

<p> Appeal from Woodbury Circuit Court. </p> <p>Action upon a lire insurance policy. At tbe timo tbe insurance was effected tbe building insured was occupied by a tenant of tbe plaintiff. When it was burned it was not occupied by any one, and bad been vacant for some seventeen days. The property was situated in Sioux City, and bad been used as a boarding bouse and hotel. The plaintiff" resided some fourteen miles from Sioux City. There was a trial by jury and a verdict and judgment for tbe plaintiff. Defendant appeals.</p>

This is an action to recover certain taxes alleged to have been illegally assessed upon a tract of land in the city of Des Moines. The said taxes were for municipal purposes, and it is alleged that the said real estate was farm property, and that it was in no wise benefitted by being within the incorporated limits of the city, and was not, therefore, liable to taxation for city purposes.

Action to recover specific personal property which had been' levied on by tlie defendant, as sheriff, under and by virtue of an execution against D. A. Lillie. The plaintiff claimed he had purchased tlie property of said Lillie, and tlie defendant pleaded that tlie sale was made with intent to hinder, delay, and defraud the creditors of said Lillie. Jury trial, verdict and judgment for the defendant, and the plaintiff appeals.

This action was commenced in February, 1877, upon a note executed by the defendants to plaintiffs for $286.42, dated April 6 th, 1876, due in nine months. After the action was commenced the plaintiffs obtained an attachment against the property of tho defendant Evans. The defendants answered as follows: First. Both say that the nóte was given for intoxicating liquors sold to Pickett in violation of law. Second.

On the 30th day of April, 1878, the plaintiff commenced this action, praying that his title to and estate in certain eighty acres of land in the petition described he established against the adverse claims of the defendant, and that the defendant he barred and estopped from having or claiming any right or title adverse to the plaintiff.

On the 10th day of June, 1875, the Chicago, Rock Island & Pacific Railroad Company entered into a contract with Queally & Pro., for the building of a portion of said road. This contract contains tlio following provisions: “ The work shall be commenced immediately and shall bo fully completed in accordance with the terms of this contract, on or before Decern ber 1st, A. D. 1875.

■ Appeal from Cass District 'Court. Action to foreclose a mortgage on real estate. There was a decree dismissing the petition, and the plaintiff appeals.

Action upon two written contracts between' plaintiff and W. H. Merritt & Co., wherein plaintiff undertook to deliver and the other parties to receive a large number of railroad ties. The petition alleges the failure and refusal of defendants to receive and pay for ties delivered by plaintiff, and other breaches of the contract. W. IT. Merritt and William Green are co-partners of the firm of W. IT. Merritt & Co. W. IT.

The plaintiff, as the administrator of the estate of Alsey Darland, deceased, claims of the defendant, W. H. Taylor, the alleged purchase price of a certain eighty acres of land. The •cause was tried,by the court as an action in equity. The court found for the plaintiff, and' rendered a judgment in his^ favor for the sum of $640.00. The defendant appeals. The facts are stated in the opinion:

The plaintiff recovered a judgment against one Williams, before a justice of the peace, for $78. An execution was issued upon said judgment, and the defendant herein was garnished as a supposed debtor of Will’- jns. The defendant made answer before said justice, stat ' that at the time lie was garnished he had in his possess , me horse of the value of $75, one wagon of the value of $'i The defendant appealed to the Circuit Court.

Appeal from Hardin District Oov/rt The defendant' was charged with having made a false certificate of receipts authorized by law while acting as auditor of Hardin county. Having been convicted and judgment having been rendered upon the verdict he appeals.

The petition states that Alexander Stuart sold and conveyed to the defendants certain described real estate; that a certain portion of the purchase money was secured by mortgage on the real estate conveyed; that afterward the mortgage as to a portion of the land was released, for the purpose of enabling the defendants to borrow certain money from the school fund, ■and secure the same by a mortgage on that portion of the premises so released.

Action in chancery for a divorce and alimony. There was a decree granting the relief prayed for, and certain lands owned by defendant were set apart for the alimony of plaintiff. Defendant appeals.

An information was filed before the mayor of Ottumwa accusing the defendant of obstructing light in the window of a beer saloon, in violation of the ordinances of the city. The defendant was arrested, and upon being arraigned filed his plea of not guilty, and filed his motion for a change of venue on the ground of the prejudice of the court.

Action in chancery to set aside a general assignment for the benefit of creditors and certain chattel mortgages executed by defendant Joshua Burr, to the end that the property covered thereby may be made subject to a claim held by plaintiffs against Burr, upon which an action by attachment has been commenced. A demurrer to plaintiff’s petition was sustained. Plaintiffs appeal.

The Union Agricultural Society was the owner of a tract of' land near Wheatland, Clinton County, Iowa. It executed a mortgage thereon to secure the payment of a certain sum of money. The mortgage was foreclosed, and the defendants became the purchasers of the land at the foreclosure sale for an amount largely in excess of what was necessary to pay off the mortgage, interest and costs. The sale was made without redemption.

This is an action for the recovery of damages for an alleged breach of warranty in the sale of a portion of lot 149 in the original plat of Council Bluffs, commencing at the northeast corner of said lot and running westerly on Broadway nineteen feet and five inches, and extending back the same width eighty-one and one-third feet, or half the distance from Broadway to Pierce Street. The cause was trited by the court, and a finding of facts was submitted as follows: “1.

Action in equity to set aside a sheriff’s deed. The plaintiff was the owner of the premises in question, and had executed a mortgage thereon to the defendant’s intestate. The defendant foreclosed the mortgage and caused an execution to be issued and placed in the hands of the sheriff, who advertised the property and made a return of sale, and at the expiration of one year from the time of sale, as stated in the.return, executed a deed to the defendant as purchaser.

The plaintiff' is administrator of the estate of Joseph Dunn, deceased, and brings this action to recovér for injuries alleged to have been caused to said Dunn by the defendant, whereby Dunn lost his life.

The garnishee filed an answer duly sworn to, stating that he is not in any way indebted to the defendant P. D. Mickel, and does not owe him any money or property now due or to become due, and did not at the time of the service of the garnishee proceeding; that he has not and at the time of the service of the garnishment had not in his possession or under his control any property, rights or credits of said Mickel, and that he does not know of any debts owing to said Mickel,…

The petition states that Robert' Huffman, by an instrument' in writing, leased certain premises to the defendants for a. term of years, the rent to be paid annually in money, and that the lease had been assigned to the plaintiffs. The rent being-unpaid, the plaintiffs asked that a landlord’s attachment be-issued, which was done, and certain property of the defendants attached.

Appeal from WinneshieJc Circuit Court. Action on a promissory note. Trial to the court, judgment for the defendant, and plaintiff appeals.

The plaintiff filed a sworn petition in equity, alleging tbat it is a corporation organized and doing business under an act of congress; that on the 1st day of December, 1874, the defendant Alexander Elmore made and delivered to the cashier of plaintiff his promissory note for $500, payable on demand; that March 3d, 1875, Alexander Elmore made and delivered to the cashier of plaintiff his other promissory note in writing for $213.80, payable two months after date; that, in…

Action on a promissory note. Trial by jury, verdict and judgment for plaintiff for mucli less than the amount of tbe note, and tbe plaintiff appeals.

Action to recover damages alleged to bave been sustained by a change of grade of a street. Held: as a matter of law, that any increase in the market value of the lot caused by the change of grade could not be set off against the damage sustained by the plaintiff by reason of the change of grade, and that the plaintiff was entitled to recover the amount necessarily expended by him in raising the building, and rendering it as…

<p> Appeal from Sancoch District Cottrt. </p> <p>In the month of September, 1S56, one Charles Felch became the owner in fee of 160 acres of land in Hancock county. On the 27th day of December, 1856, said Eelcb conveyed said land to Henry Budka by a deed, with covenants of general warranty. Budka afterward conveyed the land to William H. Seymour, and Seymour conveyed to John Maben. In 1870, Jolin Maben laid out and platted said land into town lots, and the same now constitutes the town of Garner. The defendant is the owner of certain lots in said town, which he acquired through Maben, and is invested with the title which was conveyed by Charles Eelcb to Henry Budka.</p> <p>On the 22d day of May, 1876, the plaintiff herein filed her petition, claiming that at the time of the conveyance from Charles Felch to Henry Budka she was the lawful wife of said Eelch, that she did not join in said conveyance, and that Charles Felch, her husband, died on the 12th day of June, 1862, leaving her as bis lawful widow, and demanding that her dower in said lots be set apart and assigned to her.</p> <p>The defendant denied that the plaintiff was at any time the lawful wife of said Felch, and also pleaded the statute of limitations. He also asked that, if it should be found that plaintiff was entitled to dower in the land, the improvements thereon, made by defendant and his grantors, and the taxes paid by them, should be taken into consideration in fixing the value of her dower estate.</p> <p>There was a decree for the plaintiff Defendant appeals.</p>

Mandamus to compel defendant, who is the auditor of the county, to establish an alteration in a road, as asked for in proceedings instituted by plaintiff. There was a judgment for defendant; plaintiff appeals. The facts of the case appear in the opinion.

The plaintiff filed a petition claiming of the defendant $L70.56, and for cause thereof alleging: “ That the defendants are co-partners and bankers in De Witt, Clinton county, Iowa, and act as agents for collection of suck bills and notes as may be transmitted to them for that purpose. “ That on the 18th day of June, 1877, Dow, Gilman & Hancock, a firm doing business under that name, executed and delivered to the plaintiff a certain bill of exchange or draft, as follows:…

The defendant, being the owner of a certain mortgage upon real estate, foreclosed the same by a suit against Win. Crum, the maker thereof. The amount of the judgment and costs was about $13,000. The notes which the mortgage was given to secure, also the mortgage, provided that in case of foreclosure a reasonable attorney’s fee should be taxed as costs.

A'ppeal from WinneshieJc Ci/revát Court. Action oh account for twenty-four dollars for nursing, washing, and boarding furnished to a pauper for four weeks, upon the order of tbe township trustees. Tbe defendant concedes its liability to pay tlie amount of two dollars per week. It also concedes its liability to pay tbe amount charged, unless its liability is limited to two dollars per week by section 1361 of the Code, and the defendant claims that it is.

Action of replevin for seventy acres of corn in the field, upon which defendant as a constable levied an execution, issued upon .a judgment against one Moorekouse. Plaintiff' claims the corn as his property. There was a trial to the court without a jury, and a judgment for defendant; plaintiff appeals.

Action to set aside an order or judgment of tbe Circuit Court, There was a decree for tbe plaintiff, and the intervenor Thompson appeals.

Action in chancery. The original petition alleges that defendant induced his father to execute a deed to him for twenty acres of land i'n consideration of the payment to plaintiff, a brother, of an annuity of fifty dollars a year during plaintiff’s life; that defendant’s agreement to pay the annuity was reduced to writing, and defendant has obtained possession of the paper and refuses to produce it.

Tiie plaintiff commenced this action against the defendant and one Joseph McOoid. The first count of the petition in substance alleges that the defendants were the owners of a certain sorrel horse, which they sold and delivered to plaintiff, and warranted sound. That the defendants well knew that said horse had an infection called glanders, whereof he soon thereafter died, to the damage of plaintiff in the sum of one hundred dollars.

It is averred in the petition that on the 21st day of January, 1865, the Tillage Creek Wool Manufacturing Company was duly organized under the laws of this State, and that the jdaintiffs and defendants were stockholders of said corporation; that said corporation issued forty shares of stock of $500 each; that on the 25th day of Eehruary, 1867, said corporation, by its president, H. 0.

Action to recover damages alleged to liave been sustained by plaintiff by reason of the negligence of the defendant’s employes in the management of one of its. railroad trains, whereby a valuable cow, the property of plaintiff, and which defendant was carrying for him, was greatly injured. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant aj>peals.

The defendant was indicted for the larceny of four hogs, ne was tried, convicted and sentenced to the penitentiary for three years. The defendant appeals.

The defendant was indicted for an assault with intent to commit murder. lie was tried and found guilty of an assault with intent to inflict great bodily injury. The defendant filed a motion in arrest of judgment and for a new trial. This motion was overruled upon all the grounds except one.

The plaintiffs are grocery merchants, and as such sold the defendant goods from time to time and charged the same in account. The first item is under date of February 3, 1868, and the last November 12,1873. On the 25th -day of January, 1870, the defendant executed to plaintiffs his promissory note for $177.65, the same being designed to cover the amount due by account at that time. Among the items of account were some for intoxicating liquor sold in violation of law.

The defendant having served upon plaintiff tbe usual notices for tlie assessment of plaintiff’s damages for right of Avay over the property of plaintiff described below, tbe sheriff’s jury assessed said damages for right of way over the N. E. J of the N. E. ¿ of section 9, and S. E. J of section 4, township 85, range 14, at $400; and his damages for right of Avay over Hartshorn’s addition to the toAvn of Traer, Tama county, Iowa, at $533.

Action on a promissory note. The defendants pleaded that the note was not the property of the plaintiff, but that it belonged to O. B. North & Co., of New Ilaven, Connecticut. Judgment was rendered for the plaintiff, and defendants appeal.

The plaintiff filed in the Winneshiek Circuit. Court a petition, as follows: “That on August 31st, 1876, one John McCraney filed, in the office of J. G-.

<p>1. Pleading: denial of signature: burden of proof. A party may put in issue the genuineness of his signature to a written instrument in suit by a pleading not under oath, but the burden of proof upon such issue, under the provisions of section 2730 of the Code, devolves upon him.</p> <p>2. Partnership: promissory note: authority to execute. Where a firm by a violation of their contract of agency became liable to their principal for the amount of certain notes taken by them as agents, it was held that either partner had authority, in settlement of the claim of the principal, to bind the firm by signing its name to the notes as co-maker, although the execution of notes was no part of the firm business.</p>

Boone District Gourt. Action at law to recover for services rendered to defendant by plaintiff, who is a surgeon. There was a judgment for plaintiff, from which he appeals. The facts of' the case appear in the opinion.

.. Action in equity to foreclose- a mortgage and to* liave the .S'áifie decreed to be the prior lien, and also to set aside a decree and judgment under which the defendant Gill claims certain, yigh-ts. • Judgment for the defendants, and plaintiffs appeal.

Action to recover $70.50 as money due on account for lumber alleged to have been sold by plaintiff to defendant. The defeiidant denies the purchase of the lumber.

Indictment charging the defendant in one count with having forged a promissory note for eighteen dollars, and in another with altering the same note. There was a verdict of guilty on both counts and judgment imprisoning the defendant in the penitentiary at hard labor for the term of ten years. Defendant appeals.

Court. Action upon a promissory note, executed by the defendants John T. Clark and Q. M. Barrett as makers, and payable to tbe order of the defendant O. J. Clark. O. J. Clark indorsed tbe note to IT. S. Weiser, now deceased, and waived demand and notice of non-payment. The plaintiffs are tbe administrators of the’estate of H. S. Weiser. John T. Clark answered, admitting tbe execution of tbe note, and averring that tbe same was fully paid in tbe life-time ot IT. S. Weiser.

This is an action in equity, the object of which is to reform and correct the description in a deed so as to subject the land intended to be conveyed to the payment of a judgment against the grantee. The conveyance was made in 1868, by E. M. Franks and Sarah Franks, his wife, to S. Gr. Franks, their son. In 1878 S. Gr. Franks was indebted to the First National Bank of Wyoming, and the plaintiff was his surety to said bank, for the payment of said indebtedness.

The defendant filed a claim in the Probate Court against the estate of which defendant is administrator for boarding and caring for the intestate. The claim was allowed, and defendant appeals.

This is a proceeding by a writ of error to a justice of the peace, sued out by defendant. TJpou the return of the writ the judgment of the justice, which was for plaintiff, was affirmed. Defendant appeals to this court. The facts of the case appear in the opinion.

The plain tiffs brought this action for the possession of the N. E. J of section 14, and the E. J of the S. E. \ of the S. E. £ of section 24, township 97, range 9, alleging that they are the absolute owners of said property. The defendants answered alleging that about the 22d day of October, 1870, they owned and possessed the land in petition described.

The defendant is road supervisor, and is about to open as a part of a public highway a strip of land two rods wide along the west side of a certain forty acres of land belonging to the plaintiff. She brings this action to restrain him by injunction. An injunction was granted, and upon hearing a decree was entered making it perpetual. The defendant appeals.

A will of deceased, dated April 28, 1877, was presented for probate, which was resisted, and another will dated October 26, 1877, was presented as the latest disposition of intestate’s property. The cause was sent to a referee who found and so reported that the last will was invalid, for the reason that at the time of its execution the testate was not possessed of a sound mind.

<p> Appeal from Winneshiek Girexdt Court. </p> <p>‘ The above eases are submitted together. In the court below the letters granted to K. Tobiason, as administrator of the estates of Ole Holverson and Holver Holverson were revoked, and he was removed from his position as administrator. In the former case it was ordered that judgment- be -rendered against the defendant for $12,289.70, with interest thereon at the rate of ten per cent, and that, in the event of his failure to pay the same to his successor within thirty days, suit be commenced on his bond. In the latter "case judgment was rendered against the defendant for $2,386, with a like order should he fail to pay to his successor in thirty days. The defendant appeals simply from the amounts of the judgments. The facts are stated in the opinion.</p>

The plaintiffs claim of tlie defendants the amount of a promissory note executed by the defendants to the “ Treasurer of the National Iowa Fence Company, of Cedar Rapids, Iowa, or order,” for $100, dated October l5th, 1878, payable twelve months after date, with reasonable attorney fees if suit be instituted, and indorsed as follows: “ National Iowa Fence Company of Cedar Rapids, Iowa, by T. J. Higgins, Secretary.” The petition alleges that the payee of the note is a…

Action in replevin to obtain possession of a seeder alleged to be worth $21. The petition avers that the plaintiff is the absolute owner of the seeder by purchase. The defendant does not deny the ownership, but avers that he is the agent of the Harris Manufacturing Company; that as such agent he took possession of the seeder; that said company has a vendor’s lien upon it; that the lien was duly filed of record, and that the plaintiff had notice thereof by the filing.

<p>1. Practice in the Supreme Court: record: bill or exceptions. Where a bill of exceptions is signed by the judge before the evidence has been inserted, it should contain such reference thereto as will unmistakably identify that which is to be incorporated. A bill of exceptions which simply directed the clerk to “insert all the evidence, rulings, objections and exceptions was held fatally defective, and on motion the evidence so inserted was stricken from the record.</p>

<p>■ 1, Mechanic’s Lien: assignment of claim. Prior to the taking effect 'of chapter 44, laws of 1874, the assignment of a claim for which a mechanic’s lien was held did not operate as a transfer of tire lien.</p> <p>2.--: -: contract. Where the defendants executed a draft upon a third person which they sold to the plaintiff, stating that they held a mechanic’s lien for the indebtedness of the drawee to them, it was held that such facts would not constitute an implied contract for the assignment of the lien'to the plaintiff.</p> <p>3. Contract: specific performance. A contract which is essentially one for the payment of money, and for a breach of which a party can be compensated in damages, will not be specifically enforced by a court of equity.</p> <p>4. Draft: protest: waiter of notice. Where after the maturity of a draft drawn by the defendant's and,sold by them to the plaintiff, the defendants stated that they had taken measures to enforce a mechanic's lien held by them upon property of the drawee to secure the indebtedness covered by the draft, it was held that such statement did not constitute a waiver of notice of the presentment and non-payment of the draft.</p>

Oourt. Action in chancery to foreclose a mortgage given to secure a promissory note for $3,000. There was a judgment upon the note for $1,678.25 and costs, and a decree foreclosing the mortgage. Plaintiff appeals.

Substantially the same questions are involved in all these cases, and they were submitted on a single abstract. The actions are in equity. The object being to have determined conflicting titles to real estate. The plaintiffs claim title under the acts of congress, approved May 15,1856, and June 2,1864, and certain legislation of the state granting lands in aid of the construction of railroads.

Action to recover damages for slanderous words spoken of and concerning the plaintiff by the defendant. The defendant pleaded that in the purchase of certain barley the plaintiff’s conduct was such as to justify the charge. Trial by jury and verdict and judgment for the plaintiff, and defendant appeals.

Action in equity to foreclose a mortgage executed to the plaintiff by the defendant Thos. Hussey Jr., in January, 1878. The defendant Thos. Hussey Sr., was made a party as claiming to have a lien upon the premises. He files an answer and cross-bill, averring that his lien is paramount to the plaintiff’s mortgage. He avers that he was formerly the owner of the premises, and sold them to the defendant Thos.

Action of replevin commenced before a justice of the peace, who rendered judgment upon a verdict for plaintiff. Upon an appeal to the Circuit Court, a like verdict and judgment was had. Defendant appeals. The facts of the case are stated in the opinion.

Action at law to recover for personal injuries sustained by plaintiff from falling into a pit negligently made and permitted by defendant in a public street in the city. There was a verdict and judgment for $1,100 for plaintiff. Defendant appeals.

The defendant was indicted, under section 4088 of the Code, for unlawfully selling, transferring, and removing beyond Ms control 178 bushels of wheat, left with him for storage and safe keeping. He was tried and convicted. He appeals.

On the 15th day of December, 1866, Hugh Parr, and Mary Barr his wife, confessed a judgment in favor of E. W. Purdy in the Buchanan District Oourt, for the sum of six hundred dollars. Hugh Barr was at that time the owner of 120 acres of land in section 20, township 88, range 9 west, upon which as well as other lands owned by him the said judgment was a lien. On the 31st day of August, 1867, said Barr and wife conveyed the 120 acre tract to John L. Hallett.

This is a proceeding by certiorari to inquire into tbe legality .of the vacation of a certain highway. The court adjudged that the proceedings of the board of supervisors and county auditor be set aside and annulled as illegal, and not within their jurisdiction. The defendants appeal.

Tub record in this case presents for determination the same questions decided in Goodnow v. Moulton et al., at present term.

Plaintiff is administrator of Wm. Cowgill, and as such brought this 'action to set aside a coveyance of real estate, made in his life time to the defendant, on the ground it was made without consideration and is void as against creditors. The District Court dismissed the petition and plaintiff appeals.

The plaintiff claimed of the defendant Arnold about thirteen hundred dollars, balance on a note of about fifteen hundred dollars, and procured an attachment to be levied upon a lot of wheat, oats and barley, on the ground that Arnold had disposed of his property in part, with intent to defraud creditors. Johnston filed a petition of intervention claiming that he was the unqualified owner of the attached property.

Action in chancery to. settle a partnership for the manufacture and sale of brick, entered, into by virtue of a contract between plaintiff and defendant. There was a decree for plaintiff in the sum of $217. Defendant appeals.

The plaintiff and defendant Abel Whitcomb were married in 1855. In 1872 said defendant commenced an action to obtain a divorce. It was duly granted. In November, 1873, the plaintiff commenced an action to set aside the decree of divorce, and asked she be allowed temporary and permanent alimony. The divorce was set aside, and a judgment rendered against Abel Whitcomb for $750 as temporary and ,$1,500 as permanent alimony, and also for costs.

T. A. Duckworth, of whose estate the defendant Boyd is administrator, was at one time plaintiff’s guardian. He was duly authorized by the proper court to sell certain real estate in which said plaintiff had an interest. The plaintiff claims he, with Stevens and Black, defendants herein, executed a bond such as required by statute in such cases. That he sold the real egtate and failed to account for the proceeds. To recover the plaintiff’s share thereof this action is brought.

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

On the 9th day of January, 1877, the plaintiff conveyed to the defendant Samuel A. Bostwick two hundred acres of land in Pottawattamie county. The conveyance was by deed with covenants of general warranty. On the same day the defendant Samuel A. Bostwick, by his deed, quit-claimed to the defendant Eliza A. Bostwick forty acres of said land. Daniel Bostwick and Samuel A. Bostwick aro the only heirs at law of Hiram Bostwick, deceased, who died in the month of September, 1876.

The plaintiff brings this action for the possession of certain lands, and for the quieting of his title thereto, and that the defendant Warford may be compelled to deliver to plaintiffs a deed which Warford has in his possession, executed by the defendants Joseph and Elizabeth Gerber, for the land in controversy. The court entered a decree as prayed in the petition. The defendants appeal.

<p>Practice: continuance: absent witness.</p>

Appeal from Dallas Circuit Court Action at law, judgment against plaintiffs upon a demurrer to their petition. They now .appeal to this court. The facts of the case ars fully stated in the opinion.

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

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

The plaintiffs ai’e the children of John McKenna, and claim that he made to each of them a gift of certain property, and these actions were brought in equity for the purpose of having their title to the property established. The relief asked was resisted by the guardian of said John, who has become insane. The two causes were submitted on the same evidence, and the pleadings are substantially the same. The Circuit Court dismissed the petitions, and the plaintiffs appeal.

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

Action .in equity for a settlement of an alleged partnership account. There was a decree for the plaintiff for $489.40. The defendants appeal.

Shortly after his death his widow, Rebecca Pettitt, was appointed administratrix of his estate. At the time of his death he owned in fee a homestead consisting of two city lots, with a large dwelling-house and appurtenances situated thereon. He also owned another lot upon which was a dwelling-house, and an undivided interest in a certain lot upon which there there were business rooms.

Action to replevy two horses of the alleged value of $75. There was a trial without a jury. The court found the value of the horses to be $50, and that the defendant was entitled to judgment for the horses or their value. The defendant electing to take judgment for their value, judgment was rendered against the plaintiff for $50 and costs. The plaintiff appeals.

Action to recover $104.35, the alleged contract price of three stoves sold by the plaintiffs to the defendants. Defense that only two stoves were purchased, and that the same were warranted to be superior in every respect, and to do good work; that one of said stoves wholly failed to fill said warranty. There was a trial without a jury, and judgment for the plaintiffs for $57.77 and costs. Defendants appeal.

Tiie plaintiff claims to be the owner in equity of the SE of SE ¡4 of section 21, township 88, range 47, the legal title to which is in the defendant. The plaintiff prays that the defendant be decreed to convey tho title to him. Tho land was formerly owned by one Cook, and was conveyed by him to one Calvin Manning, and by him to the defendant.

Aijpeabjrom Kossuth Circuit Court. Action upon promissory notes; there was -a verdict and judgment for plaintiff; defendants appeal.

This is an action to recover damages fora personal injury. It is* averred in the petition that the defendant is the owner of a meat market and butcher shop, and that be employed tbe plaintiff to* x-epair an ice-box situated in, said shop; and that in the course of his employment, and while attempting to get upon the said ice-box for the purpose of repairing the same, plaintiff slipped and fell, without any negligence upon bis pax-t, and in falling struck upon the knives of a…

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

The petition show? that the plaintiff purchased of the defendant Henzie eighty acres of land, and received from him a deed of the same with covenants of -warranty; that the land was apparently subject to a deed of trust executed in 1859, and given to secure a note for $568, due September 9, 1860; that the collection of the note had become barred by the statute of limitations, but that the deed of trust remained a cloud upon the plaintiff's title.

Action in chancery to foreclose a mortgage. Upon the motion of plaintiff the court appointed a receiver, with authority to take possession of the property, collect the rents, pay taxes, make repairs, etc. Prom this order defendant Daniels appeals.

Action to recover for work and labor performed by the plaintiff in the family of, and for, Ira Burbank, deceased, from March 1,1872, to July 3,1877. There was a trial to the court, judgment for the plaintiff for $750, and the defendants appeal.

This is an action for a personal injury caused by the plaintiff falling upon a sidewalk, which he alleges the defendant negligently allowed to become dangerous to travelers by reason of an accumulation of snow and ice thereon. There was atrial by jury, verdict and judgment for the plaintiff, and defendant appeals.'

Action in replevin to recover a mare transferred by plaintiff to defendant under the form of a sale, but which the plaintiff alleges was merely a sham sale. Trial by jury. Verdict and judgment for plaintiff. 'Defendant appeals.

<p>Criminal law: toe state v. Westfall, 49 Iowa, 328, followed.</p>

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

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