Volume 61 — Iowa Reports

The plaintiff, Ileatli, is the owner of lots 4 and 5, block 20, situated between Fourth and Fifth streets in the city of Hes Moines, west side. Between these lots there is an alley sixteen feet wide, running east and west. On lot 4, north of the alley, is plaintiff’s elevator; on lot 5, south of the alley, is his oat-meal mill, having a capacity to manufacture 30,000 bushels of oat-meal per annum, and in which there is a large amount of expensive machinery.

The defendant is road supervisor. The plaintiff brings this action to enjoin him from opening an alleged road. There was a decree for the defendant. The plaintiff appeals.

Action to obtain possession of a tract of land in Story-county. Both plaintiff and defendants claim under one J. R. Doty, now deceased. The plaintiff claims as devisee of J. R. Doty. The defendant, J. W. Doty, claims under an alleged deed of the land from J. R. Doty. He claims, also, in case the deed should be found invalid, as the equitable owner by purchase and payment; and, in case it should be found that lie is not a purchaser, he claims as father and heir of J. R. Doty.

Afjpeal from Mahaslca Gircioit Court. This is a proceeding in tbe circuit court to establish certain claims against the estate of Jonathan Atkins, deceased. The claims consist of four prommissory notes, which purport to have been executed by Atkins, and payable to the order of the plaintiff, and amounting in the aggregate to more than $é,000 dollars, without interest. There was a trial by jury, which resulted in a verdict and judgment for defendants. Plaintiff appeals.

This action was brought upon the official bond of the defendant, Evans, as auditor of Ida county.

Action upon an account for flour sold by plaintiffs’ assignors to defendants. The cause was tried without a jury and judgment rendered for defendants. Plaintiffs appeal.

Action to recover for services rendered under a written contract in establishing the business of a creamery. There was a judgment upon a verdict for plaintiff. Defendant appeals.

This action involves the liability of the defendant, Sjiain, upon a blank indorsement upon a promissory note. The court below held that the defendant was not liable, and plaintiff appeals.

The defendant, S. H. Hurto, ontlie 28th of October, 1881, was engaged in the grocery business in the city of Davenport. He owned and operated two stores, or business stands, in different parts of the city.

The plaintiff, having obtained a judgment against the defendant, Gibbons, garnished the defendant, the Chicago, Burlington & Quincy R. Oo. The answer óf the garnishee, upon being taken, showed that Gibbons at the time of the garnishment was employed by the garnishee as a brakeman, and that there was due him at the time of the garnishment, for wages then earned, $9.70, and that the garnishee owed him no other debt at that time, due or to become due.

<p> Appeal from Winnesheik District Court. </p> <p>' Action at Law. There was a judgment upon a verdict for plaintiff. Defendant appeals.</p>

Action originally commenced before a justice of the peace to recover for hay burned by fire set out by an engine on defendant’s road. The amount claimed is $99. Upon an appeal by defendant to the circuit court, a judgment was rendered upon a verdict for $69.40. Defendant now appeals to this court.

This is an action to recover damages for the death of plaintiff’s intestate, which was caused by being run over by a train of cars operated by defendant’s employes. Decedent was what is denominated in the pleadings as an “assistant braheman,” and he came to his death by attempting to uncouple the train while it was in motion. There was a trial by jury, which resulted in a verdict for the plaintiff, which was set aside and a new trial ordered.

Action in equity. The plaintiff prays for the foreclosure of a mortgage, and for other relief. There was a -decree for the plaintiff. The defendant appeals.

The defendants are partners engaged in business as apothecaries. The plaintiff brings this aption to recover of them $5,000, as damages alleged to have been sustained by reason of their negligence as apothecaries. They pleaded a general denial. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.

The plaintiff, a resident and tax payer of Franklin township, in Decatur county, Iowa, for himself and other tax payers of said township, brings this action, to enjoin the collection of a five per cent tax, voted in said township on the 13th day of September, 1879, to aid in the construction of the M., I. & N. E. R. The case was tried in August, 1881, and a decree was entered enjoining the collection of said taxes, as prayed for in the petition. The railway company appeals.

<p>1. Justice of the Peace: election op: who to canvas returns. Justices of the peace are county officers, under section 593 of the Code, and the board of supervisors, and not the township trustees, is charged by statute with the duty of canvassing the returns of the election of a justice of the peace.</p>

The plaintiff brings this action to recover of the defendant the value of over fourteen hundred bushels of corn. The plaintiff alleges that the corn in question was raised upon premises which he rented from one Addie E. Barber, and was his property, and that the defendant obtained possession thereof by force and threats, and converted the same to his own use.

It is averred in the petition that on the fourth day of July, 1880, the plaintiff was in the incorporated town of Woodbine, and while there, and without any negligence on her part, she was struck in the face and greatly injured by a fire-rocket, or some instrument appertaining to fire-works.

The defendant was convicted of the crime of burglary, and now appeals to this court. The facts of the case involved in the questions decided are stated in the opinion.

' Appeal from Clayton Circuit Cowrt. Action of certiorari to test the legality of the proceedings of the defendant board of supervisors in establishing a public highway. The circuit court affirmed the proceedings of the board, and the plaintiff appeals.

The plaintiffs, as judgment creditors of a corporation known as the Des Moines Plow Company, bring this action to recover the amount of their judgment from the defendant, a stockholder in said corporation, and liable thereto, as alleged, for unpaid installments upon his stock, in an amount greater than plaintiff’s judgment.

Action to recover for trespass upon plaintiffs land, and for injuries sustained by an alleged assault and battery committed upon the plaintiff by the defendant. There Was a trial by jury, and a verdict and judgment for the defendant, and plaintiff appeals.

<p>1. Execution: only one at a time: statute mandatory. Section 3025 of the Code, providing that only one execution shall be in existence at the same time, is mandatory; and the fact that the first execution was ordered returned, but was not, did not make a second execution, issued before the first one was returned, legal, and a sale thereunder valid.</p> <p>2. -: invalid: waiver op invalidity. Although a sale of land made under a second execution, issued before the first one was returned, was in law invalid, yet where the execution debtor, knowing all the facts, stood by and made no objection to the sale, and at the expiration of the time for redemption made no sign, but surrendered possession of the land, held that he could not afterwards, by an action in equity, put the purchaser, who was the execution creditor, out of possession of the land, without offering to pay the judgment, and without showing that the land was sold for an inadequate consideration.</p>

Action for injuries alleged to bave been sustained by reason of a defective sidewalk. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff for $5,000. The defendant appeals.

The plaintiff claims of the defendant $500, with interest at six per cent from March 29,1875. The petition is in two counts. In the first count of the petition it is alleged that on the twenty-fourth day of March, 1875, when the plaintiff was a minor, and so known to be by the defendant, the plaintiff entered into a written contract with the defendant for the purchase of a certain nursery at Red Oak, and paid him therefor the sum of $500.

Plaintiff brought action against defendants, James Folsom & Co., upon promissory notes, wherein an attachment was issued, and the City Bank of Boone was garnished thereon and answering, showed that it had money of defendants’ on deposit. Thereupon E. L. Dexter intervened, claiming a part of the money upon deposit in the bank.

■ The defendant was indicted for an assault witli an intent to commit great bodily injury. He was convicted of assault and battery, and now appeals to this court.

■ Action upon an account for certain agricultural implements. The case was tried without a jury, and a judgment rendered for- plaintiff. , Defendants appeal.

<p>1. Default: order setting aside: discretion of court. The setting aside of a default rests peculiarly in the discretion of the judge who entered it; and where an abuse of such discretionis not affirmatively shown, an order to that effect will not be disturbed.</p> <p>2.-: motion to set aside: meritorious defense. Where the action was in replevin, an affidavit that the property replevied was in fact the property of plaintiff’s husband, from whom defendant had taken it on execution against him, and that plaintiff’s claim to the property was fraudulent, was a sufficient showing of merits to sustain a motion to set aside a default against defendant.</p>

<p> Appeal from Polls Circuit Cov/rt. </p> <p>The plaintiff in liis petition alleges in substance that the City of Des Moines passed an ordinance authorizing the defendant'to construct and operate its road along Nine street in said city, subject to the condition that the track should be constructed as nearly as practicable upon the middle line of said street, and so as to leave at least eight feet on each side of said street, between the track and sidewalks; that in 1866 the defendant built its road pursuant to said ordinance, and so operated it until 1870, when the defendant wrongfully, carelessly, negligently, and unlawfully constructed its track upon the sidewalk in said street, in front of the plaintiff’s property, damaging it to the extent of $5,000. The plains tiff prays judgment for $5,000, and asks an order of mandamus to compel the defendant to remove said side track. The defendant for answer, amongst other things, alleges that the city of Des Moines, on the second day of May, 1870, by resolution, authorized and permitted Messrs. Getchell & Ticlienor, Tuttle Bros. & Bobertson, B.. W. Sypher, and. others, to lay down and operate a side track on the sidewalk, on the north side of Vine street, provided they put in and keep in repair the necessary culverts and crossings, and guarantee that no damage shall accrue to private property, and that, pursuant to this authority, the defendant was employed to and did lay a side track upon said sidewalk, and has operated the same hitherto at the request and for the convenience of said persons and others. The cause was tried to a jury, which, on the twelfth day of January, 1882, returned a verdict for plaintiff for $1,200. On the fourteenth day of January, 1882, the plaintiff entered his remittitur in the sum of $600, and the court x-endered judgment against the defendant for $600. On January 24, 1882, the plaintiff filed his motion for an order for the removal of the side track, culvert, etc. The court overruled the motion, and from this ruling the plaintiff appealed.</p>

This is an action for damages caused, as it is alleged, by the failure of tbe defendant, who is a surgeon, to properly treat a dislocation of the elbow joint of plaintiff’s arm. There was a trial by jury, and a verdict and judgment for the plaintiff*. Defendant appeals. ,

In 1875 and 1876, S. II. Templeton was engaged in selling sewing machines at Boone, Iowa. lie gave bond to the sewing machine company, with T. J. Ross, E. W. Lockwood, and J. 0. Mitchell as his sureties. Templeton defaulted on his bond, and in May, 1879, judgment was rendered against him and his sureties, in the sum of $5,161.08, which his sureties paid in November, 1879.

<p>1. Divorce: temporary alimony: evidence of marriage. In an action for divorce, temporary alimony should not be allowed unless the marriage is proved or admitted; but where the testimony of the parties pro and con, as to the marriage, is in equipoise, and a disinterested witness testifies that he knows the parties and was present at the marriage, this sufficiently establishes their marriage to justify an order for temporary alimony.</p> <p>2.--: alimony: attachment. Section 2227 of the Code, and other sections of the same chapter, contain the only provisions relating to attachments in divorce cases; and the plaintiff in this case having presented a petition complying with said provisions of the Code, the court did not err in granting her a writ of attachment without a bond.</p>

The facts in this case are as follows: At the June term, 1880, of the Einggold district court, there were two indictments presented against one A. J. Wilson. At the January term, 1881, he entered into a bond, with J. B. Wilson as his surety, obligating himself to appear and answer to the indictments, and abide the order and judgment of said court.

The plaintiff claims of the defendants $2,000 for tlie alleged wrongful seizure and conversion of a stock of goods, of which tbe plaintiff alleges be is the owner.

The defendant, Conger, is administrator of the estate of Charles Wilshire, deceased. The plaintiff, alleging himself to be the owner of an established claim against the estate, made a motion for an order upon the defendant that he pay it. The defendant resisted the motion, upon the ground that the claim was not established against the estate, and ought not to be. The court overruled the motion, and the plaintiff appeals.

This is an action of replevin for ten bead of cattle. Tbe plaintiff alleges in bis petition that be is tbe owner of tbe property, and tbat tbe defendant unlawfully detains tbe possession of tbe same from tbe plaintiff.

This is an action for the recovery of certain real estate in the city of Ottumwa. Upon a trial in the court below, there was a judgment for the plaintiff, and defendant appeals.

■ This is an action in equity to quiet title to forty acres of land. The court dismissed tbe plaintiffs’ petition, and quieted the defendant’s title to the land in controversy. The ^plaintiffs appeal. The facts appear in the opinion.

The plaintiff brings this action to quiet title to a strip of ground one rod in width and eight rods in length, in the village of Clear Lake. The petition prays that the defendant be barred and estopped from having or claiming any title or interest in said ground, and that the plaintiff have general relief. The court entered a decree for the plaintiff. The de- • fendant appeals. The facts are stated in the opinion.

This is an action upon a promissory note for $60. Under the direction of the court, the jury returned a verdict for the defendant. The plaintiff appeals.

The plaintiff is a tax payer of Jefferson township, Fayette county. In April, 1878, the township trustees, as a board of equalization, raised his assessment from. $105 to $2,500. In May, 1880, he took an appeal from the township board of equalization to the circuit court, serving notice upon the county as well as the township trustees. The county appeared and filed a motion to dismiss the appeal, on the ground that it was taken too late.

This action was originally commenced before a justice of the peace. A judgment was rendered for the defendant, and the cause was taken to the circuit court upon a writ of error, where the judgment of the justice of the peace was affirmed. Plaintiff appeals.

Action in equity for the assignment of the alleged distributive share of the plaintiff, Annetta Boyles, in certain land in Madison county. She claims the same as distributee of the estate of one William II, Marble, deceased.

Action for damages alleged to have been sustained by reason of the killing of the plaintiff’s mare. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

This case was submitted to tbe court below upon an agreed statement of facts, as follows: “That during tbe- years 1879 and 1880, tbe plaintiff, D. R. Moore, was tbé clerk of tbe circuit and district courts in and for said Mahaska, county., “That for eaeb of said years plaintiff received as fees for bis official services as clerk of said courts' tbe' sum of more than $2,000 for the year 1879, and more than $1,750 for tbe year 1880; and be turned all in excess of said sums…

This action, was originally commenced against tbe defendants to quiet tbe title of tbe plaintiff to forty acres of land. Tbe defendant answered, denying that tbe plaintiff bad any interest in tbe land. Mary S. Parr intervened in tbe action, and claimed tliat tbe plaintiff beld the legal title of tbe land in trust for herself and other heirs of F. M. Denny, deceased, and she asserted a specific lien of $500 upon the land, and prayed for general relief.

This case involves a controversy between the plaintiff and defendant, as to which party is entitled to a sheriff’s deed for certain premises.' The court found for the defendant. The plaintiff appeals. The facts are stated in the opinion.

The city of Keokuk raised the grade of Fulton street, and tlie city council appointed commissioners to assess the benefits and damages resulting to the owners of abutting property, who found, and so reported, the damage to lot twelve, block seventy-three, to be $250, and thereupon the council adopted the report and ordered a warrant upon the city treasurer to be issued to the owner of the lot for the damage assessed by the commissioners.

The appeal in this ease is taken by the defendant, The Des Móines & Fort Dodge R’y Co., from an order substituting the record of a decree alleged to have been rendered in favor of this plaintiff, and against The Des Moines Yalley R’y Co., which record it is alleged was destroyed by fire. The order of substitution was made upon motion. No notice of the motion was served upon the latter company.

Action at law against a church and its trustees to recover on account of money due plaintiff for services rendered to the church as its pastor. The^e was a verdict and judgment for plaintiff. Defendants appeal.

On the twenty-sixth day of June, 1880, the defendants, W. P. Kimball and Olara Kimball, his wife, conveyed one hundred and sixty acres of land in Shelby county by deed of warranty to George Kibby. Kibby died intestate on the twenty-second day of September, 1881, and said conveyance was not ■filed for record until after his death.

This is a proceeding in habeas corpus, tlie petition alleging that Festusina Bonnett is restrained of her liberty by Lewis and Amanda Bonnett. The court adjudged that the defendants do not illegally restrain Festusina Bonnett of her liberty, and that she be remanded to their custody. The plaintiff appeals.

Affeal from Chickasaw District Court. An indictment was presented against the defendant, the changing part of which is as follows: “The said J. A. Stuart, on the twenty-first day of February, 1878, in the county aforesaid, did falsely, feloniously, and fraudulently, make and forge a certain negotiable promissory note, which said false and forged note is as follows: (Here follows an exact copy of a negotiable promissory note for $600, signed by ¥m. Larrabee and two others);…

Action to recover for expenses alleged to have been incurred in providing for certain persons infected with smallpox, and in providing for the safety of the inhabitants. There was a trial to the court, and judgment was rendered for-the plaintiff. The defendant appeals.

This is an action in equity, brought to set aside and vacate a judgment which, it is claimed, is void. An answer ivas filed, and a trial had upon the issues joined, and a decree was 'entered for the plaintiff. Defendants appeal.-

This is an action upon an alleged ■ contract of insurance. Tlie cause was referred to J. M. Bartholomew, Esq., who found and reported the facts as follows:- “1st. That the defendant is and was a corporation as alleged in plaintiff’s petition. “2nd.

. Action in equity to foreclose a bond for the conveyance of real estate, judgment for the defendant, and the plaintiff appeals.

. Action to recover for an alleged breach of a contract, and a violation of trust under the same. On motion all the defendants were dismissed, except T. P. Brush. There was a trial to a jury, and verdict and judgment were rendered for the remaining defendant, Brush, and the plaintiff appeals. ' • • .

This is an action to foreclose a mortgage. There was a demurrer to the petition, which was overruled. The defendant failed to answer, and a decree was entered against them as prayed in the petition. ' Defendants appeal.'

This action was commenced before a justice of the peace to recover the value of a portion of a partition fence, assigned. to defendant by the fence-viewers as the part lie was required to build and maintain. Defendant neglecting to construct the fence, it was built by plaintiff. Upon an appeal-and change of venue to the district court, judgment was rendered for defendant, from which plaintiff appeals.

. Appeal from Mills Circuit Court'. The plaintiffs allege in their petition, in substance, that, the defendant, the Wabash, St. Louis & Pacific Railway Com-j>any, has entered upon and constructed and is now operating a railroad over the lands of plaintiffs, without having obtained from plaintiffs the right of way, or taking any steps toward securing or paying for the land so taken; that plaintiffs took the necessary steps to have that damage assessed, and the commissioners…

Action for damages alleged to have been sustained by reason of a conspiracy. The plaintiff sold a cow to one Hickman. The defendant, South, claimed to be the owner of the cow, and brought an action in replevin against Hickman before a justice of the peace, one Work. The justice found that the cow belonged to South, and accordingly rendered judgment in his favor for its possession.

<p>1. Railroads: injury to stock: service of notice: The service -upon a “station agent” of a railroad company of the notice required by section 1289 of the Code, as a foundation for the recovery of double dam,ages, is sufficient, without a more specific showing that such agent was “employed in the management of the business of the corporation.” Welch v. C., B. & Q. Railway Company, 53 Iowa, 632, followed.</p> <p>2. Instruction: burden of proof. Where the defendant introduced no evidence, and there was no conflict in that introduced by plaintiff, the omission of the court to instruct the jury that the burden of proof was on the plaintiff could have wrought no prejudice to defendant, and was not reversible error.</p> <p>3. Railroads: right to fence: evidence. Where it appeared from the evidence that the cattle were killed on plaintiff’s farm, at a place where there was no highway or public crossing, this was sufficient to warrant the jury in finding that the accident occurred at a place where defendant had the right to fence.</p>

The defendants commenced actions against S. B. Bomick & Co., and caused’ attachments therein to issue, under and by virtue of which the sheriff attached a stock of goods of the value of about $5,000 as the property of Bomick & Co. The plaintiff, claiming to be the owner of the goods, commenced this action to recover the same of the sheriff. The appellants were substituted as defendants in the place and stead of the sheriff.

Action upon two promissory notes. There was a verdict whereon a judgment was rendered for plaintiff, which, upon motion of defendant, was set aside and a new trial granted. Plaintiff appeals.

<p>1. Partition: sale for inadequate price set aside. A sale by referees in an action for tbe partition of real estate is not complete until approved and confirmed by tbe court; (Code, sections 3300, 3301;) and when it appears that the sale was made for an inadequate price, it is the duty of tbe court, when moved by tbe parties in interest, to set aside the sale and order a resale of tbe land.</p>

<p>1. Trial de Hoyo: certification op evidence. Where the record does not show that all the evidence has been certified, and it appears that it was not certified within the time prescribed by law, a trial de novo cannot be had in this court.</p>

Ed. R. Dujfe, Judge of the District Court of the Fourteenth Judicial District. Tiie defendant is sheriff of Sac county, and had the plaintiff in his custody under a warrant issued by a justice of the peace, committing the defendant to jail, because of his conviction of a crime by the justice of the peace. On the alleged ground that the judgment of the justice was void, that plaintiff applied for, and there was issued, a writ of habeas corpus.

<p>1. Hew Trial: discretion of trial court in granting. Unless it is made clearly to appear that the trial judge abused his discretion in granting a new trial on the ground that the verdict was not sustained by the evidence, this court will not interfere.</p>

The defendant in this case appeals from the judgment of the circuit court, dismissing a writ of error sued out for the jmrpose of reviewing the action of a justice of the peace in rendering judgment against the defendant for $21. The defendant appeals. The material facts are stated in the opinion.

<p> Ajopeal from Ha/rcLvn Gvrouit Court. </p> <p>The plaintiff is the father of the defendant, M. E. Wood. From August, 1877, to January, 1880, they were co-partners in the book, stationery and notion business at Eldora, under the firm nameuf M. E. & E. D. Wood. The partnership was dissolved by mutual consent on the twenty-sixth day of January, 1880. A written agreement was entered into by the parties by which E. D. Wood, the plaintiff, withdrew from the business. M.'E. Wood agreed to continue the business, keep up the stock, pay all the partnership debts, and pay the plaintiff the sum of $2,000 in one year, and $5 a week from the date of dissolution until the $2,000 should be paid. A promissory note was executed for the $2,000, in accord with the written agreement, and the same was secured by a chattel mortgage upon the stock of goods. At the time of the dissolution of the partnership, the firm was indebted to a number of persons. Among other ..claims against the partnership, there was a judgment in favor of Phelps, Dodge & Parker, for about $370. The defendant, W. T. Shaver, was surety upon the promissory note upon which this judgment was founded, and the judgment was against him as well as the partnership. On the twenty-eighth day of July, 1880, an arrangement was made between the plaintiff and the defendants, M. E. Wood and Shaver, by which M. E. Wood executed a note, secured by a chattel mortgage upon the stock of goods, to Shaver, for- $400, and the plaintiff, executed a writing, by which he agreed that the mortgage to Shaver should be prior and superior to plaintiff’s mortgage. This note, payable to Shaver, was handed over to the defendants, C. Ilardin & Sons, bankers, as collateral security on claims which they held against Shaver. Hardin & Sons were not satisfied with the written instrument postponing one mortgage to the other, and the plaintiff* afterward, at the solicitation of the other parties, entered a release of his mortgage upón the margin of the record thereof in the recorders office. The defendant, M. E. Wood, did not pay off the judgment of Phelps, Dodge & Palmer. Shaver paid about $100 thereon about the time the mortgage wTas made to him, and •lie paid the balance after this suit was commenced, and before the trial in the circuit court. The defendant, M. E. Wood, paid to the plaintiff’ the $5 per week up to the commencement of this suit, but he has paid none of the principal of the note for $2,000. This action was commenced on the fifteenth of February, 1881. The plaintiff claims that ho was induced to postpone his mortgage, and finally cancel it, by threats made by Shaver and M. E. Wood that Phelps, Dodge & Palmer would levy, an execution upon the stock of goods, and by promises that, if plaintiff would allow Shaver to have the first mortgage, he would immediately pay off the said judgment, lie charges that he has been cheated by fraud and menaced by threats, and he asks the re-instatement of his mortgage, and that it be foreclosed as a first lien upon the stock of goods. The defendant, M. E. Wood, claims that he agreed to pay plaintiff too large an amount for his interest in the stock, and asks that he be released from making full payment. All of the defendants deny that there was any fraud in procuring the plaintiff to postpone and release his mortgage, and claim that the same was a fair transaction, by which all parties should be bound, and C. Hardin & Sons ask a foreclosure of the Shaver mortgage.</p> <p>The court entered a decree declaring plaintiff’s mortgage to be prior, and ordered that both mortgages be foreclosed, and that the proceeds of the sale of the goods be applied first on plaintiff’s mortgage. The defendants appeal.</p>

<p>1. Taxes: erroneous payment upon another’s land: recovery by payer from owner. Where plaintiff’s assignor, believing himself to be the owner of certain land, paid the tases thereon, and it was after-wards adjudicated that the title was in the defendant, and the defendant., in a suit brought against him. by the county to recover the taxes, pleaded such payment as a defense, held that this plea was such ail appropriation to himself of the benefit of such payment as to amount to a ratification by him of the act of plaintiff’s assignor in making the payment, and that plaintiff was entitled to recover the amount so paid from the defendant, as money advanced for him.</p> <p>2. -: ■ — —: -: statute of limitations. In such case, the statute of limitations did not begin to run at the time payment was made by plaintiff’s assignor, but from the' time when defendant became liable by his plea adopting and claiming the benefit of the payment.</p>

<p>1. Venue: change of: motion for by corporation: affidavit. Where a corporation defendant moves fora change of venue on account of the prejudice of the judge, the principal affidavit therefor, as required by section 2590 of the Code, may be made by any officer or agent of the corporation sufficiently acquainted with the facts to make it conscientiously; but an affidavit which does not show the official character of the affiant, except by an unverified recitation thereof in the body of the affidavit, is not sufficient.</p> <p>2. -:-: affidavits for are part of record. Affidavits for a change of venue are, like a demurrer, a part of the record of the case, and there is no need of a bill of exceptions to make them such.</p> <p>3. -:-: record and practice on appeal. When the trial court grants a change of venue on the alleged ground of judicial prejudice, it passes upon the sufficiency of the affidavits filed as a foundation therefor; and, on an appeal from such ruling, the sufficiency of the affidavits will be reviewed upon their merits, without regard to the objections urged below, and such objections need not be made of record and certified to this court.</p> <p>4. -: -: practice in trial and appellate courts. Upon an application for a change of venue in such a case, the principal affiant cannot be compelled to submit to a cross-examination, though the other affiants may be, at the discretion of the court. But in the absence of an affirmative showing that such cross-examination was had, this court will not presume that it was had, but will proceed to review the ruling on such application, upon the sufficiency of the affidavits properly certified in the record.</p>

<p>1. Homestead: contract to convey: oral consent oe wife to. A written contract made by the husband for the conveyance of the homestead, with only the oral concurrence of the wife, is void:</p> <p>2. Specific performance of part of a Contract, the other part being void. Where a contract to convey lands, including the homestead, was void as to the homestead, the court, in an action for the specific performance of the whole contract, could not decree a conveyance of the land other than the homestead, unless the plaintiff elected to take such partial conveyance, which, in this case, he did not do.</p> <p>3.- Measure of Damages: breach oe contract to convey land. In an action for the breach of a contract to convey land, where the contract is in part void, because it embraces the homestead and the wife has not legally concurred therein, it is doubtful whether more than the purchase-money paid and interest thereon can be recovered; and where in such case‘the payment was made by a certificate of deposit, which defendant retained and tendered into court, held that the court did not err in refusing plaintiff any damages whatever.</p>

<p>1. Usury: facts not constituting. ' B. borrowed of C. $3,600 on bis note and mortgage. Afterwards B., wishing to borrow a further sum of C., which, it seems, she had not at hand, proposed to C. that she should sell the $3,600 note and mortgage to a purchaser whom he would provide, for the sum of $3,400, and that he would then borrow of her the $3,400 so realized, and secure the same by his note and mortgage for $3,600, allowing her the difference of $200 to compensate her in part for the discount on the salo of the first note, and for her expenses in examining the property which he proposed to mortgage as security for the second loan. The proposition was accepted and carried out in detail. Held that these facts would not support a plea of usury as against the second note.</p>

<p>1. Adultery: consent op woman not essential. To constitute the crime of adultery as against the man, the consent of the woman to the carnal intercourse is not necessary.</p> <p>2. —:—: complaint op wipe: pacts not constituting. Where a wife, in response to a subpoena, testifies before the grand jury to her husband’s adultery, supposing that she is obliged to do so, but not intending to prefer charges of adultery against him, this is not a complaint by her against her husband, as contemplated by section 4008 of the Code.</p> <p>3. -: -■: pkoop op by state. A conviction cannot he had for adultery without proof that the indictment 'was found on complaint hy the husband or wife of the defendant, but the fact of such complaint need not be proved beyond a reasonable doubt.</p> <p>4. Criminal Law: evidence: weight op admissions. An instruction that “admissions made in ordinary or random conversation are not generally considered in law as satisfactory proof,’’ held not erroneous.</p> <p>5. -: -: good character: weight op. An instruction in a criminal action to the effect that previous good character as to the trait involved is not of itself a defense, but is a consideration which may be sufficient to turn the scale in defendant’s favor, and that its value as defensive evidence must be determined by the jury, held to give sufficient effect to proof of good character.</p> <p>6. -: motives op prosecutor immaterial. If the defendant is proved guilty of the crime with which he is charged, it is the duty of the jury to convict him, regardless of the motives which may have led to his prosecution.</p> <p>7. Evidence of Conversation: witness may state impressions'. Where a witness cannot give the language used in a conversation, ho may testify to the ideas which the language conveyed to his mind, ana the jury must pass upon the weight of the testimony.</p> <p>8. Adultery: evidence: error cured. Where, contrary to the rule of law, in a prosecution for adultery, evidence was admitted of an adulterous act subsequent to the one charged in the indictment, the error wa? cured by the district attorney’s withdrawing from the jury the evidence of such subsequent act.</p>

<p>Deposition: motion to suppress: time op piling. Where the ground of a motion to suppress a deposition is the incompeteney of the testimony, under section 3639 of the Code, it is not necessary that the motion be filed by the morning of the second day of the first term, under section 3751 of the Code.</p> <p>2. Evidence: personal communication: action against heirs. Whero the witness, the widow of decedent, was made a co-defendant in a partition suit brought by one of the heirs against the others, and her • testimony related to personal communications made to her by the decedent, and was given against the plaintiff, such testimony was incompetent, under section 3639 of the Code, notwithstanding the fact that she had no interest in common with the other defendants against the plaintiff.</p> <p>3. Evidence by Deposition: incompetency op: time to object to. When the deposition of a witness is taken, objections to his competency as a loitness must be urged when he is sworn, but objections to the eom- • petency of his testimony may be urged at the trial.</p> <p>4. Evidence: advancement to child: burden of proof. A voluntary conveyance by a parent to his child is prima facie an advancement, and where the child claims that it was a gift, the burden is upon him to prove it.</p>

Appeal from FrankVun District Cov/rt. Action in equity for the establishment of a mechanic’s lien. Judgment for the plaintiff, and defendant appeals.

The defendant, Wood, one Jackson, and'the plaintiffs, executed-a, promissory note to D. N. Pickering, and the plaintiff's claim that, the defendant was, the principal debtor and they bis sureties, and that they have been compelled to pay Pickering a portion of tbe amount due on tbe note; and this action was brought to recover the amount so paid. The defendant pleaded a prior adjudication. Trial to the court, and judgment for the plaintiffs. The defendant appeals.

Action to recover or for the admeasurement of the plaintiff’s distributive share, or dower, in the real estate of which her husband died seized. Judgment for the plaintiff, and defendant appeals.

Action to recover the value.of twenty kegs of mixed paint. Defendants' admit in their answer that the paint had been shipped to them by plaintiffs, but allege that they ordered two kegs only, and upon receipt of the goods, had notified plaintiffs'that they would not keep them, except to be disposed of upon the order of plaintiffs, and that they had paid for the two kegs ordered.

The plaintiff is an attorney-at-law, and brings this action in equity against the defendant, Nancy Neidy, to recover for professional services, and to enforce an attorney’s lien. The defendant denies any employment of the plaintiff. As an independent defense, she avers that the contract under which he was employed was champertous. The court found for the defendant, and dismissed the plaintiff’s petition. He appeals. -

<p> Appeal from Warren Cvrouit Court. </p> <p>The plaintiff is the wife of Gr. .H. Bonney, and' brought this action for damages sustained by reason of the defendant having sold- intoxicating liquors to her husband, whereby she. was damaged in her means of support. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.</p>

The defendant was charged with bastardy. The complaint was filed before the child was born. The woman was delivered of a dead child between the time of making the complaint and the trial of the cause. At the time of her sickness and the birth of the child, medical attention and other expenses were necessary, which were furnished at the expense of the county. There was a trial by jury, and the defendant was found guilty.

Action to charge a wife for goods sold to the husband, Which are alleged to have been purchased for the use of the family, and should be paid for by the wife as a part of the necessary family expenses. A demurrer to the petition was overruled, and, defendant refusing further to plead, judgment was entered for plaintiff. Defendant appeals.

The petition states, that the plaintiff was in possession of a tract of land on which there was growing a crop of corn, which was entirely destroyed by reason of an overflow of water from the Spooner ditch, which had been constructed by the authority and direction of the county. The negligence of the defendant, it was stated, consisted in permitting the accumulation of sediment in the ditch, which caused the overflow.

This action was commenced in 1881, and tried at tbe January term, 1882. There are two counts in the petition. The first states that a complaint under the bastardy statute was filed against Jacob L. McGlothlin, and that an attachment was ordered to and did issue, by virtue of which certain personal property of the said Jacob was attached, which he desired to have released.

Appeal from Tama District Court. Indictment rob murder. There was a conviction of murder in the second degree, and the defendant appeals.

The plaintiff alleges in his petition, in substance, that in the year of 1879, the plaintiff toot possession, under a contract of purchase, of a certain store building in Anamosa, which was out of repair and unfit for use, and that, subsequent to the contract of purchase, it was verbally agreed between plaintiff and defendant, that in case plaintiff was not able to pay for said building, defendant would pay plaintiff for all improvements made thereto; that plaintiff’ paid in…

Ajoyoeal from Pottawattamie Circuit Court. Action to recover for the killing and injuring of certain live stock owned by plaintiff, by a train operated by defendant upon its railroad. The injuries were done at a point upon defendant’s road where it was lawful to erect a fence. There was a verdict and judgment thereon for plaintiff. Defendant appeals.

Action to recover for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

Defendant was convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life. He now appeals to this court. The facts involved in the points ruled are stated in the opinion.

The plaintiff caused certain witnesses to be subpoenaed, in order to prove by them tbe inexpediency of locating and establishing the proposed road. Held: and so ordered upon the motion, that the costs and fees of witnesses subpoenaed by plaintiff, to prove tbe inexpediency of establishing the road, be not taxed against tbe defendants. The plaintiff appeals from this order.

' This is a controversy involving the title to a mineral lot in the city of Dubuque. The plaintiffs claim tbe lot under the original patent title. The defendant’s claim is based upon a tax sale and deed. The district court entered a decree for the plaintiffs, from which defendant appeals.

• Action to foreclose a real estate mortgage executed to the plaintiff by one Earners. Henry Foekler was made defendant, as claiming an interest in the property. He appeared and set up a mortgage, and averred that it was paramount to the plaintiff’s. The court held that the plaintiff’s mortgage was paramount, and rendered a decree accordingly. The defendant appeals.

Petition of Carrie B. Dodge, appellant, for accounting by. executor, and objection to liis discharge on final report. The petition is as follows: “Now comes Carrie B. Dodge, one of the children and legatees of J. H. .Berryhill, deceased, and shows the court reasons for this, her petition, as follows: “About January 21, 1878, Caroline Berryhill, the widow of decedent, was appointed temporary guardian of said John IT.

Appeals from Worth Circuit Court. These actions are founded upon policies of insurance against loss by fire. The policies are alike in all material -respects, and'the cases present the same questions, and were submitted upon the same arguments, with the agreement that' the decision in this court of one case shall determine the other.

Action-to recover double damages for stock killed or inT jured by trains on defendant’s road, at a place where the defendant had the right, but failed, to maintain a sufficient fence. Trial by jury, verdict and judgment for the plaintiff) and defendant appeals. - •

This action was brought in February, 1882, before a jus-' tice of the peace, upon a promissory note drawn for $24, dated April 21, 1870, and made payable four months after date to W. B. Yan Sant or bearer. Judgment was rendered for the plaintiff, and a transcript thereof was iiied in the office of the clerk of the circuit court.

Action for a personal injury.' The case is now before; us upon a second appeal. There lias been one trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appealed to this court, aud the judgment was reversed. 55 Iowa, 121.

Defendant was convicted of an assault witb intent to commit a rape, and sentenced to five years imprisonment in the penitentiary; he now appeals to this court.

The plaintiff’s action was at law. The defendant pleaded a general denial and a counter claim — first, for money-loaned, and, second, a promissory note secured by mortgage; and a foreclosure of the latter ivas asked. In a reply, the plaintiff admitted that there was due on the mortgage $105.53; and he asked that the same might be offset against the amount he might recover in his action at law.

Tuts action involves tlie title to forty acres of land, and tlie right to redeem tlie same from certain claims for taxes. There was a decree for the plaintiff, which authorized him to redeem the land, and divesting the defendants of all title thereto, upon, the payment of $171.90 and the costs of the action. The plaintiff appeals.

In this action it is sought to foreclose a mechanic’s.lien for work and labor performed by the plaintiff in the construction of the Centerville, Moravia & Albia Railroad. There was a trial to the court, and the relief demanded against the railroad company was denied. Plaintiffs appeal.

Action for damages alleged to have been sustained by the seizure of certain corn belonging to the plaintiffs.

Action to quiet the title of certain lands. The defendant by his answer and a cross bill set up title to the land claimed by plaintiffs. There was a decree quieting the title of a part of the land in plaintiffs, and the title of the other part in defendants. Plaintiffs ,-appqal.

Sometime in 1878, one George Pattee commenced, in the Ilardin district court, an action against the trustees of'the Northwestern College for the recovery of §25,- and garnished Ubbee Pressman and his wife as supposed debtors of the said trustees of the Northwestern College. Afterward, upon the answers of the garnishees, Pattee recovered a judgment against Ubbee Dressman and wife for $25 and $18.85 costs.

Action in equity to set aside a conveyance of real estate made by the defendant, ~W. M. Hostetter, to his father, Moses Hostetter, who is made a defendant, on the ground -that the same was made with intent to hinder and delay creditors. The court found for the defendants and dismissed the petition. The plaintiff appeals.

Action of certiorari brought to test tbe validity of certain taxes voted in different townships in Palo Alto county to aid in the construction of a certain railroad. The plaintiffs are tax-payers, one of whom owns property in each township, respectively. The persons made defendants comprise the present county supervisors, the county auditor, and county treasurer.

The plaintiff, Mary Ami Linton, as widow of tbe defendant’s testate, applied for an order of probate directing the defendant, as executor, to pay her her distributive share in tlie personalty belonging to tbe estate. ■ Upon bearing, the court made an order that tbe defendant pay the plaintiff tbe sum of $500 as part of her distributive share of tbe personalty, expressly providing that the order .was not to be regarded as fixing the amount of her distributive share, and was…

Action in equity to obtain tbe cancellation of a judgment and a new trial. Tbe plaintiff avers tbat tbe rendition of the judgment was without jurisdiction, and was obtained by fraud. There was a decree for tbe defendant. The plaintiff appeals.

Action in equity. The plaintiffs aver, in substance, that they are the equitable owners of the southeast quarter of the southwest quarter of section twenty-eight, township eighty-three north, of range forty-five west of the fifth P. M. They aver that they became such owners under an act of congress, approved June 2,1864, whereby certain lands were granted to aid the Cedar Rapids & Missouri River R’y Co. in the construction of its road; that after they became owners, the…

Action to remove a cloud from the plaintiff’s alleged title-' to certain real, estate in Dubuque county. The petition avers,in substance, that in October, 1872, one William II.

Tiie plaintiff avers that it is the owner and holder of a certain written order and contract, which is in these words: “Revolving Scraper Co., Columbus, Ohio. “Tou will please ship to us on or before the first day of May, 1878, nine of your thirty inch steel bottom scrapers; direct to J. H. Merrill, Independence, Buchanan county, Iowa, for which the undersigned agree to pay you, or your order, $144, on or before May 1, 1879, with interest.

Plaintiff is an architect, and states in his petition that he was employed by a duly authorized committee of defendant’s board of directors to furnish plans for the construction of a school-house about to be constructed by the defendant; that he did furnish such plans, and the same were approved by the board; that such plans, after the approval thereof by the building committed, were left with said committee, who represented and agreed that the building should be constructed…

Action at law. The pleadings and facts in the case are sufficiently set out in the opinion for a proper understanding of the j>oints decided. There was a verdict and judgment for plaintiff. Defendant appeals.

Action- by an employe of tlie defendant to recover damages caused by his being injured through the negligence of a co-employe. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

Action for a personal injury. The plaintiff alleges in his petition, in substance, tliat be is tlie administrator of the estate of J. W. Hyde, deceased; that the defendant is engaged in the business of a common carrier, and as such is running its trains from Malvern, Mills county, Iowa, to some point in the state of Missouri; that in November, 1879, the defendant received from one Wearen certain live stock at its station at Malvern for transportation; that the plaintiff’s…

This is an action to recover compensation for one-half of an alleged wall in common, and for one-half of the ground upon which it rests. The cause was tried to the court, and judgment was rendered for the plaintiff for $510. The defendant appeals. The material facts are stated in the opinion.

There are two counts in the petiton. Tlie first states that the plaintiff was “in the act of crossing defendant’s railroad trade with team and wagon, on tlie highway, and, without negligence on his part, and by the negligence of the defendant in not giving the proper signals when approaching said highway with locomotive and cars, your petitioner was injured by said locomotive running into his wagon, upsetting and breaking the same, and the harness upon his horses, injury and…

Action by a junior incumbrancer to redeem certain real estate in Des Moines county. The property at one time belonged to one Smith. He mortgaged it to the defendant. Afterward tbe plaintiff obtained two judgments against Smith, which became liens on the property. The mortgagee, the defendant in this action, foreclosed, hid in the property at tiie foreclosure sale, acquired a deed, and took possession.

This is an action at law in which the plaintiff seeks, among other things, to recover damages of the defendant, which he alleges occurred to him by reason of the neglect and failure of the defendant to erect and maintain proper cattle-guards where the railroad of the defendant enters and leaves the improved land of the plaintiff. There was a trial by the court without a jury, and a judgment was rendered for the plaintiff. Defendant appeals.

■ Action in chancery to enjoin defendant from erecting a bridge upon a highway located along the line of plaintiff’s land, which defendant proposes to erect upon the side of. the road nest to plaintiff’s land and immediately adjacent thereto. Upon a trial on the mérits, plaintiff’s petition was dismissed, and judgment- was rendered against him for damages resulting from the issuing of the preliminary injunction. He now appeals to this court.

This is an action to set aside a conveyance of certain real estate, made by Matbias Cook to Lydia A. Cook, upon the alleged ground that the same was without consideration, and fraudulent as to the plaintiff, who is a judgment creditor of said Mathias Cook. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

This action involves the title to forty acres of land in Clarke county. It is alleged in the petition that the plaintiff is the owner of the land under the patent title, and that defendant unlawfully keeps him out of possession, and that the action was brought within one year after the plaintiff' attained the age of majority.

Action in chancery to enforce the alleged rights of plaintiff to redeem certain land, claimed by her as a homestead, from a sheriff’s.sale made upon a decree foreclosing a mortgage. The facts of the case appear in the opinion.

This is a petition for a new trial in an action at law, upon the ground of newly discovered evidence. A demurrer to the petition was sustained, and defendant appeals.

Action to recover certain sums of money alleged to be due plaintiff from defendant, on account of benefits to which he claims to be entitled,-according to the .constitution and bylaws of defendant, by reason of sickness and disability occurring while he was a member of the defendant lodge. A demurrer to defendant’s answer was overruled, and, plaintiff standing thereon, judgment was rendered for defendant, from which plaintiff appeals.

• This is an action to recover of the defendant, Elizabeth MeCollough, the amount of a promissory note, and to establish therefor a vendor’s lien upon certain one hundred and twenty acres of land in the petition described. The court rendered judgment in favor of plaintiff for the sum of $1,459.67, and established the vendor’s lien as prayed. The defendants appeal. The material facts are stated in the opinion.

<p>1. Practice in Supreme Court: trial db novo: evidence not certified. The printing at the end of an abstract the certificate of the trial judge, which was attached to the evidence in the court below, stating that the “foregoing report contains all the evidence,” etc., is not a statement that the abstract contains all the evidence, and will not justify a trial de novo.</p> <p>2. -: -: -: effect of amended abstract. Where, in such a case, the appellee files an amended abstract, for the purpose only of making a specific correction, but yet claiming that the two abstracts do not contain all the evidence, the omission in the first abstract is not cured, and a trial de novo cannot be had.</p> <p>S. --: submitting argument: regularity presumed. When a printed argument comes to the court in the usual time and manner, the court cannot hold that it was not duly submitted to opposite counsel, upon the mere statement of such counsel made in a petition for rehearing.</p> <p>4, -: trial of errors: evidence not certified. Errors assigned on the ground that the evidence does not support the decree cannot be considered, unless it appears that all the evidence is before the court.</p> <p>5. Practice: striking matter from pleading. Where a reply to a cross-bill contained paragraphs which were mere repetitions of matter pleaded in the petition, or mere recitation of evidence instead of allegations of fact, and the like, it was not error for the court to strike out these paragraphs on motion.</p>

Indictments charging that the defendants, since the twenty-seventh day of June, 1882, sold beer to divers persons, “to the common nuisance and annoyance of the neighborhood.” The defendants pleaded not guilty. There was a trial to the court, and judgment was rendered against the defendants and they appeal.

Appeals from Montgomery District Oourt. These cases are submitted upon the same abstract; and are to be determined together. They are actions in equity to quiet title to different tracts of land in the respective plaintiffs. The land was originally swamp land, and, as such, the title to it passed to Montgomery county.

The premises conveyed were incumbered by a right-of-way for railroad purposes, and this was the breach alleged in the petition.

Tuts is an action in equity to quiet the title to land. The court dismissed the plaintiff’s petition, and lie appeals. The material facts are stated in the opinion.

Ap'péál from, Dubuque District Oo'wrt. This was originally an action upon an indictment for the larceny of certain money. The defendant was acquitted, but the case was retained upon the docket for the purpose of trying the title to , the money which had been taken upon a search’warrant, and which was alleged to'be the subject of the larceny.

The plaintiff in Lis original and amended petitions in substance alleges that on the third day of October, 1876, the defendants executed a bond, as follows: “Know all men by these presents, that we, Clark Sarchett, of Walker, Linn county, Iowa, as principal, and Geo.

An information charging E. W. Cutler with a criminal offense was filed before a justice of the peace. What the offense was the abstract fails to show. On a.preliminary examination before the justice, Cutler was discharged, and the justice found that the prosecution was malicious, and rendered judgment against the defendant, as prosecutor, for the costs. The defendant appeals.

Action in equity. The defendant, Hart, obtained a judgment in an action before a justice of the peace against one Yerhaven, and the latter appealed therefrom to the circuit court. Tlie appeal bond was in the penalty of fifty dollars, and was signed by the plaintiff as surety. On the trial in the circuit court, judgment was rendered against Verb aven and the plaintiff for three dollars damages, and one hundred and fifty-two dollars and eighty-five cents costs.

The parties entered into an .agreement of arbitration. Upon an award in favor of plaintiff a decree was entered, from which defendants appeal. The facts of the case appear in the opinion.

The plaintiff, who is the widow of John Patterson, deceased, filed a claim against his estate upon an account for money had and received, and certain articles of personal property, consisting of cattle, sheep, hogs, grain and a gun. The account, less a part of the claim, was allowed, and the executor was ordered to pay the sum found due plaintiff. The executor appeals.

Ti-ie defendant was charged witb being the father of a bastard child. Trial by jury. Yerdict, guilty, and judgment. The defendant appeals.

This is an action in equity to reform certain promissory notes and a mortgage given to secure the payment thereof. There was an answer in denial of the allegations of the petition, and a cross-petition, in which the defendants sought to reform the notes and mortgage in certain particulars. The cause was tried upon written evidence, and a decree was rendered for the plaintiff. Defendant appeals.

Tiie defendant, James S. Hamilton, pursuant to section 2906 of the Code, moved the court for judgment against T. D. Eiggs and N. M. Shepherd, for the sum of $377.59, with 6 per cent interest from October 20, 1877, stating for cause of such motion that on the ninth day of August, 1871, the plaintiff obtained judgment against the defendants, T. D. Eiggs and N. M. Shepherd, for the sum of $221.64, and costs, and that the defendant, James S. Hamilton, became the surety of Eiggs…

The petition states that plaintiffs are residents of the City of Keokuk, and are owners of dwelling houses therein, which are situated on a bluff. That defendant has erected an engine and pumping house at the foot of the bluff near said dwelling houses, and have placed therein boilers and engines, in operating which soft coal is burned, which emits dense, masses of black smoke, gases and soot.

Action to recover for personal injuries received by plaint.iff. There was a judgment for plaintiff upon a verdict in his favor. Defendant appeals. The facts are fully stated in the opinion.

This action was commenced by tbe plaintiff against tbe defendant, Wolff, upon a promissory note, and a writ of attachment was issued upon the ground that the debt was incurred for property obtained by false pretenses, the defendant having absconded. The writ of attachment was levied upon eleven spring calves.

Mr. Justice Roti-irock, of this court, issued a writ of habeas corpus directed to the defendant, the sheriff of Linn county, who, it is alleged in the petition, illegally restrained the petitioner of his liberty in the jail of the county. Upon the return of the writ, the proceedings were dismissed, and the petitioner was remanded to the custody of the defendant. The petitioner appeals. The facts of the case are stated in the opinion.

<p>1. Highway: petition for: to whom addressed. While section 922 of the Code prescribes that a petition for the establishment of a highway shall run to the board of supervisors, yet a petition addressed to the county auditor, the clerk of the board, was sufficient to give the board jurisdiction to establish the road which the petition very clearly, though not expressly, asked for.</p> <p>2. -: -: bond. Section 923 of the Code, providing that the auditor, before filing a petition for a highway, shall require a bond to be given, is merely directory, and where a petition was filed and a road established thereon without the filing of a bond, held that the proceedings were valid, and that the road was legally established.</p> <p>3. -: established by auditor: WIDTH .of. Although the auditor had no power to establish a road only forty feet wide, (section 921 of the Code,) yet, where the record of his action was read over to and approved by the board of supervisors, it thereby became their action, and the road was thus legalized.</p>

Action to foreclose a mortgage securing a promissory note. The plaintiffs appeal from a judgment of the circuit court overruling a demurrer to defendant’s answer. The pleadings are set out in the opinion.

Action on a policy of insurance against loss by fire on a general stock of merchandise. Trial by jury, verdict and judgment for the plaintiff. The defendant appeals.

Block No. 10, in the city of Marshalltown, is composed of twelve lots, of which six front upon a street upon the north, and six front upon Main street upon the south. Through this block an alley runs east and west. Another alley, sixteen and a half feet wide, also extends north and south through the block, between lots 3 and 4 and 9 and 10.

In July, 1882, Solomon McReynolds died, testate, and M. L. McReynolds and Martha W. Tracy were appointed executors of his will. His widow, Eliza McReynolds, made an application for an order of allowance for support, and the court granted the order. The executors appeal.

Action in chancery to restrain defendant from operating , its railroad built upon a street whereon plaintiff’s dwelling is situated, until the injury sustained by him from the location of tlie railroad be ascertained. The case was tried upon an agreed statement of facts, and the relief prayed for in the petition was granted by the decree of the court.

This is an action to recover the value of personal property levied upon by the defendant, Barton, as constable, under an execution in favor of John Burt against the plaintiff. The petition alleges that plaintiff paid off the execution and demanded a surrender of the property levied upon, and that defendant has not surrendered said property.

■Action on a promissory note. The defendants pleaded that the note was given in consideration of the assignment of a certain patent right for a fanning mill, with the right to manufacture and sell such mill in certain named territory in the state of Iowa.

Certiorari. This is an original proceeding commenced here by petition, upon which, pursuant to an order made by one of the justices of this court, a- writ of certiorari was issued. A return to the writ has been made, and defendants have filed a demurrer to the petition.

Action of replevin to recover certain goods seized by defendant, Babcock, sheriff, by virtue of certain writs of attachment in his hands against the property of P. and N. Ohlquist. Upon the motion of the sheriff and certain of the creditors, they were substituted as defendants in the action in the place of the sheriff, and he was discharged from all liability as defendant. Erom this order plaintiff appeals.

In 1871, George L. Bunce was appointed guardian of the defendant, who was then a minor. The defendant arrived at the age of twenty-one years in 1880. The plaintiff signed the bond of said guardian as surety, and in this proceeding he seeks to be discharged from further liability on said bond. An answer was filed, a hearing was had, and plaintiff’s application was refused, and he appeals.

<p>1. Criminal Evidence: murder: self-defense: quarrelsome disposition of the deceased. Where on a trial for murder self-defense was relied on by the defendant, it was error to exclude testimony offered to prove that the deceased was of a quarrelsome, violent and overbearing disposition, that he carried concealed weapons, and that he had repeatedly abused defendant.</p>

The plaintiff, a minor, by liis next friend, commenced this action in equity against the defendant, his guardian, praying that the defendant be required to make an account of plaintiff’s estate. The defendant alleges that he has accounted for all moneys of his ward, and that he invested the funds in his hands in real estate for his ward under order of the circuit court.

The plaintiff in this action, on the sixteenth of December, 1879, recovered a judgment for money in the court below against Stephen Williams. Execution was issued on the judgment, and A. G-. Williams, the defendant herein, ■ was garnished. His answer denying indebtedness to the defendant in the judgment was taken and filed. The plaintiff filed a pleading controverting the answer of the garnishee, and, at the April term, 1881, the cause was tried upon the issues thus made.

Action to recover for expenses incurred by tbe plaintiff county in the support of an insane person, one Mrs. Mary Cassidy, on the alleged ground that her place of settlement was in the defendant county. There was a trial without a jury, and judgment was rendered for the defendant. The plaintiff appeals.

On the nineteenth of November, 1881, an indictment was returned against the defendant for the crime of seduction. The defendant was arraigned on the thirteenth of March, 1882. On the next day he demurred to the indictment, which demurrer was overruled. He then moved for a change of venue, and the motion was overruled, whereupon the plea of not guilty was entered.

This is an action for reimbursement for aid furnished by the plaintiff to certain paupers at a time when they had a legal settlement in the county of Buchanan, as it is alleged. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

. Indictment for murder. Wells and. Cook were found guilty of murder in tlie first degree, and Fitzgerald in the second degree. The defendants appeal.

The questions involved in this case grow out of proceedings instituted for the condemnation of a right of way for the defendant through the plaintiff’s land. The amount assessed by the sheriff’s jury was $1,500. From the assessment the defendant appealed.

The plaintiffs allege that Margaret L. Neas is the widow, and that Samuel M., Allen W., and the defendant, Levi M. Neas, are children and heirs at law of Samuel M. Neas, deceased; that Samuel M. Neas purchased the west one-third of a certain lot in the petition described, and that the conveyance therefor was executed to Levi M. Neas; that in consequence of the fact that Samuel M. Neas was the equitable owner of said property, Levi M. Neas and his wife, Maria S. Neas, on the…

Action to partition certain lands, tbe plaintiff claiming a dower interest therein. There was a decree establishing plaintiff’s right and title to an undivided one-third of the lands. The defendants appeal. The facts of the case are fully-stated in the opinion of the court.

This is an action at law1 to recover the value of certain wheat, which the plaintiff claiméd he had stored in an elevator at Brooklyn, in Poweshiek county, and. which, with the elevator, was destroyed by fire communicated to the elevator by an engine on defendant’s road. There was a trial by the court without a jury, which resulted in a judgment for the plaintiff. Defendant appeals.

This is an action to recover damages for tbe alleged wrongful change of the grade of a street in front of certain lots and buildings owned by the plaintiffs. There was a trial by jury, which resulted in a verdict and judgment for the defendant, and plaintiffs appeal.

The defendant was convicted of the crime of larceny, and sentenced to the penitentiary for three and one-half years. He appeals.

Action of replevin to recover specific goods and merchandise. Upon a verdict for plaintiff, a judgment was rendered,. and defendants appeal. The facts of the case appear in the opinion.

As to some of the defendants tbis in substance is an action to foreclose a mortgage. The defense was payment. A decree of foreclosure was entered. Both parties appeal.

On the twenty-eighth day of March, 1882, an information was filed before' the mayor of the town of Columbus City, charging the defendant with keeping a saloon, where wine, ale and beer were sold and billiards were played, in violation of an ordinance of the town. The mayor found the defendant guilty. lie appealed to the Louisa district court, and upon his application the venue was changed to the Muscatine district court.

<p>1. Bill of Exceptions: direction to insert instructions: duty on clerk: presumptions. Where appellant in a “skeleton.” bill of exception recites in due order that the court on its own motion gave certain instructions, and directs the clerk to insert them, and certain instructions are inserted accordingly, this court will presume that the clerk did his duty, and inserted all the instructions so given, and will not presume, without any evidence, that other instructions were given at the request of either party, which were not by the bill made matter of record.</p> <p>2. Partnership: law firm: contract for services with partner BEFORE PARTNERSHIP: HOW FAR BINDING ON OTHER PARTNER. Plaintiff made a contract with. H., an attorney, for legal services at a stipulated price. Afterwards H. entered into partnership with A., and the services were, during the partnership, rendered by the firm, and after the dissolution they were continued by both members of the firm. In an action for the services rendered by A. after the dissolution, held that he was bound by the contract made with H., and could not recover a quantum meruit, unless there was a new employment of A. after the dissolution, or the defendant had knowledge, or should under the circumstances have had knowledge, that A. was not rendering his services under the contract, but expected to be paid their reasonable value.</p>

The plaintiff is the widow of William Mahaffy, deceased. As such, she made an application for an order of allowance, under section 2375 of the Code.

Appeal from Jasper Circuit Court. Action in equity. An injunction was granted which, on motion, was dissolved, and the plaintiff appeals.

The petition states that the defendant was engaged in repairing a bridge over a creek on a public highway. “That a certain grade was made by the defendant approaching said bridge, which led on to certain plank or timber work approaching to and north of said bridge proper, it being intended that the intermediate space should be ñlled with earth, which, however, was not done, and that the land was in such condition as to leave an offset or precipice over the end of said plank…

This is an action at law to recover on a carpenter’s contract for building. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

The appellant, Phillip M. Crapo, is the executor of the estate of John. II. Armstrong, deceased. Esther M. Armstrong is the widow of the deceased. After entering upon his duties as executor, Crapo made an application to the court for an order authorizing him to expend an amount, not exceeding twenty-five hundred dollars, in erecting a monument to the memory of the deceased upon the cemetery lot belonging to the estate.

Action of replevin for certain grain. J. W. Allen & Co. intervened, claiming property in the grain under a purchase from the mortgagor executing the mortgage whereon the plaintiff bases his right to the grain. The railroad company disclaims any interest in the grain other than as a common carrier, the property having been delivered to it for transportation.

This was originally a garnishment proceeding. Upon motion of plaintiff, the issues arising upon the petition of the interveuor, claiming the money sought to be reached by the garnishment process, were tried as equitable issues. By the decree of the circuit court, the assignment under which the intervenor claims the money involved in the proceedings was declared to be fraudulent and void, and was canceled and set aside. The intervenor appeals.

<p> Appeal from Gass District Gowrt. </p> <p>Action upon three promissory notes. Trial to a jury, and verdict and judgment for the plaintiff. Defendants appeal.</p>

Appeal from Jefferson Circuit Cou/rL This action was commenced before a justice of the peace, and judgment being rendered against the defendant, he appealed to the circuit court, where on motion of the plaintiff the appeal was dismissed, and the defendant appeals.

This is an action to recover damages for an alleged trespass upon the plaintiff’s real estate. The cause was submitted to the court upon an agreed statement of facts, and judgment was rendered for the plaintiff. The defendant appeals.

Court. ■ 'The plaintiff Claims tbat on tbe fourteenth of February,-1883, he was employed by the defendant as head brakeman on a freight train, and that, at Hubbard, in Hardin county, he was about to make a coupling, and “gave the engineer of' the train 'the signal to slow up, and then went in between the cars to make .the coupling, but the engineer, neglecting, failing and refusing to obey the plaintiff’s said signal, kicked the cars back upon the plaintiff with great force,…

An quod damnum to condemn land required by defendant for its right of way. The plaintiff appealed from the assesment made by tbe commissioners selected by tlie sheriff, and a judgment upon a verdict was rendered upon the appeal in the circuit court for $700, from which defendant appeals.

The plaintiff, as administrator of tlie estate of Martha Ivers, deceased, brings this action to recover of the defendant the value of certain property which, it is alleged, belonged to the estate of decedent, and which, it is claimed, the defendant took possession of and appropriated. The cause was tried to a jury, and verdict and judgment were rendered for plaintiif in the sum of $1,124.70. The defendant appeals. The material facts are stated in the opinion.

The petition states that in 1870 tbe plaintiff was tbe owner of certain described real estate, which he sold and conveyed to the defendant, Ensign, who executed to the plaintiff a mortgage on said real estate to secure the unpaid portion of the purchase monéy; that the mortgage was duly filed for record, and that plaintiff at all times ivas the owner of the notes and mortgage; that said mortgage was released of record, but not by the plaintiff, nor was the release executed…

Action to redeem certain real estate. The plaintiff holds a tax deed to the same. He seeks to redeem from a school-fund claim. The land belonged to the county of Adair as school-fund land. The county contracted to sell it to one ITornback, retaining the legal title as security for an unpaid balance of purchase-money.

This is an action of replevin for one oscillating thersher, size 6, 30-ineh cylinder, and one Chicago Pitts ten-.horse power. The plaintiff claims the possession of the property, by virtue of a chattel mortgage executed to him by one James Hayden, and alleges that the defendant, as sheriff, wrongfully detains said property by virtue of executions in his hands, which he has levied upon said property, against said James Hayden and B. Hayden.

This is a controversey concerning the ownership of an eighty acre farm in Marion county. The legal title to the land is in the plaintiff, and he acquired the same by a conveyance from one Chamberlain, which conveyance was made on the 18th of October, 1880.

This is an action by a physician to recover for medical attendance upon certain paupers in Pleasant Yalley township, Webster county. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

This action and another involving the same questions were submitted together. They are between the same parties, except that J. L. Forman is a defendant- in one, and It. Pereival is a defendant in the other. The determination of one ease determines the other. It is sought by the actions to subject certain real estate, the title to which is held by Mary Eobinson, to the payment of certain judgments against Wm. H. Eobinson.

Action to recover for money collected by the defendant for the plaintiff. The defendant is an attorney at law. As such attorney he obtained a judgment for the plaintiff for the sum of $1,000, and afterwards collected the same. He paid out for the plaintiff, however, on garnishment, the sum of $249.60. There is something due him also for fees which he claims by way of set-off. But as to how much is due him the parties are not agreed.

<p> Appeal from Taylor Circuit Court. </p> <p>Action upon a promissory note. There was a verdict and judgment for defendants. Plaintiff appeals.</p>

The plaintiff brings this action to recover damages for injuries sustained whilst driving along one of the defendant’s streets, by reason, as he alleges, of a ditch negligently constructed across said street. There was a jury trial, resulting in a verdict and judgment for the plaintiff for $250. The defendant appeals.

<p>Insufficient record : appeal dismissed.</p>

<p> Appeal from Jones Circuit Court. </p> <p>Action at law. Trial to the court. Judgment for the defendant, and plaintiff appeals.</p>

Action upon two promissory notes. In a trial between plaintiff and defendant, Cloud, there was a judgment upon a verdict for defendant. Plaintiff appeals. The facts of the case appear in the opinion.

Ap2)eal from Montgomery Circuit Court. The plaintiff alleges that in 1872 he loaned the defendant, E. M. Griffith, $190, and that, at the time said money was loaned, said defendant verbally agreed that in consideration of said loan, and to secure the same, he would execute and record a mortgage upon certain eighty acres of land in Montgomery county, and return it to plaintiff at Burlington; that defendant never executed the said mortgage, and that he is insolvent; that the…

The plaintiff avers that the defendant constructed a ditch and embankment along his land; that the defendant was guilty of negligance in the construction, and by reason thereof the plaintiff’s land has been overflowed, and he has sustained injury. The defendant demurred to the petition, and the demurrer was sustained. The plaintiff electing to stand upon his petition, judgment was rendered against him for costs. He appeals. ■

<p> Appeal from Monroe District Court. </p> <p>Action in chancery to dissolve a co-partnership and for other relief. Upon a trial on the merits a decree was entered dismissing plaintiff’s petition. He now appeals to this court.</p>

Action to recover specific personal property. Trial by the court. Judgment for the defendants, and the plaintiffs appeal.

The plaintiff avers that he was surety upon a promissory note for the defendant, West; that the note was put in judgment, and that he paid one-third of the judgment.- He brings this action to recover for such payment. The defendant denies that the plaintiff was surety i'or him. He admits the execution of the note, but says that he and the plaintiff and one A. E. Bryant were all sureties upon the note for one A. M. Bryant, and that the plaintiff had .knowledge of such fact.