Volume 63 — Iowa Reports

This is an action in equity, and it was commenced in the district court. The petition states that in 1871 the Farmers’ and Merchants’ Bank of Bloomfield was incorporated, with an authorized capital of one hundred and fifty thousand dollars, which afterward, in 1874, was increased to two hundred thousand dollars; that said corporation was organized to engage in and carry on the business of banking, under chapter 52 of the Revision.

This action was commenced before a justice of tbe peace to recover $32, the value of the services of plaintiff, who is a physician, in rendering “medical treatment for a girl.” Judgment was rendered for defendant by the justice of the peace, but on appeal to the circuit court there was a judgment for plaintiff. Defendant appeals to this court.

Pkooeeding in garnishment. The plaintiffs are judgment creditors of the defendant, Vezina. As such, they caused an execution to issue upon their judgment, and caused the defendant, Irwin, to be garnished. He appeared and answered, denying all indebtedness, and denying that he had property in his possession or under his control belonging to the judgment debtor. A stipulation of facts was also filed.

In the month of August, 1882, defendant, being in possession as lessee of a tract of land on which he was engaged in operating a coal mine, instituted a proceeding, under the provisions of chapter 34 of the acts of the Fifteenth General Assembly, to have a public way established from a point on the Chicago, Burlington & Quincy Railway, over and across certain lands belonging to plaintiff, to his coal mine; and he gave notice of his intention to construct and maintain a…

In 1857, certain lots in the city of Des Moines were owned by one Dr. A. Shaw, who, in 1871, conveyed them to Charles H. Hempstead, and he oivned them up to the time of his death in 1879, when they became the property of the plaintiff. In the year 1857, the city council of the city of Des Moines, by ordinance, established the grade of Walnut street, and improvements were made upon said lots with reference to said grade.

The defendants and others petitioned the board of supervisors of Lucas county for the establishment of a highway.

<p> Appeal from, Poweshieh Ci/roxdt Court. </p> <p>This is an action in equity for an accounting, and' the settlement of an alleged partnership, between the plaintiff and the defendant. There was a demurrer to the petition, which was sustained, and the plaintiff appeals. The facts appear in the opinion.</p>

The plaintiffs are the children of William Mahaffy, deceased, and the defendant is his' widow.

■ Action for damages alleged to have been sustained by reason of the negligence of the defendant in killing three horses belonging to the plaintiff. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

The plaintiff is a resident of the state of Illinois, and brought this action under a statute of that state to recover double the value of a mule, the property of the plaintiff, killed by the defendant in said state. . There was a denial of the allegations of the petition, and affirmative defenses pleaded by tbe defendant. Trial to tbe court, finding of facts and j udgment for the defendant, and plaintiff appealed, and afterward the defendant appealed.

Action to recover damages for loss sustained by reason of an error in the abstract of title of certain lands, furnished by defendants to plaintiff. There was a judgment in the circuit court upon a verdict for plaintiff. Defendants appeal.

This is an action upon, a promissory note. The names of House & Laub are signed to the note, and it is made payable to the order of E. House, and endorsed to J. E. Miller, plaintiffs’ intestate. The defendant, Laub, denied the execution of the note, and set up other defenses, and pleaded certain counter-claims. There was a trial by jury, and a verdict for the defendants. Plaintiffs appeal.

In the year 1873, plaintiff sold to defendant, Jesse Fisk, a farm of one hundred acres, in Davis county, for fifteen hundred dollars. Two hundred dollars was paid in cash at the time of the sale, and for the remainder of the purchase price Fisk gave six notes, which became due respectively on the 25th day of December, 1875, 1876, 1877, 1878, 1879 and 1880; and these notes were secured by a mortgage on the premises; executed by Fisk and his wife.

Action in equity to enforce an alleged trust. The petition shows that tbe plaintiff is the widow of Patrick Rogers, deceased; that her husband, at the time of his decease, August, 1868, was the owner of certain real estate in Clayton, county; that he made a devise of the real estate, giving the plaintiff, his widow, a life estate therein, and the remainder to his children; that among his children was one Michael Rogers, who is also the plaintiff’s child; that Michael went to…

The plaintiff brought suit before a justice of the peace, and recovered judgment by default against defendant for $20 debt, and $7.80 costs. The defendant appealed to the circuit court. The plaintiff filed a motion to dismiss the appeal, for the reason that the amount in controversy did not exceed $25. This motion was overruled by the circuit court, and from this order plaintiff appeals.

<p>1. Appeal to Supreme Court: less than $100: interest in real, estate: what is not. An action brought to establish a lienup.on real estate, and to subject it to the satisfaction of a judgment, is not an action involving an interest in real estate, as contemplated in section 3173 of the Code, and where the amount involved is less than $100, the cause cannot, under said section, be reviewed in this court, without a certificate-of the trial judge.</p>

Action upon a contract warranting a certain reaping and mowing machine, purchased by plaintiff of defendants. There was a judgment upon a verdict for plaintiff'. Defendants appeal.

<p> Appeal from, Palo Alto Gvreuit Oourt. </p> <p>Action upon a due bill for $58.80, brought before a justice of the peace of Palo Alto county. The defendant moved to dismiss, on the ground that he was not a resident of Palo Alto county. He supported his motion by an affidavit made by himself, showing that he was a contractor upon a railroad which was in process of construction; that he had resided in Des Moines county for seven years; that he was absent from Des Moines county only for the purpose of constructing the railroad; and that he expected to return to Des Moines county as soon as the job upon which he was at work should be completed. The affidavit also showed that, while it was true that he had rented a house in Palo Alto county, in which he was living and keeping house with his family during the time that he was performing his contract in the construction of the railroad, his family would return with him to Des Moines county when his contract should be completed. The justice held the affidavit to be insufficient to show that the defendant was not a resident of Palo Alto county, and overruled the motion to dismiss, and rendered judgment for the plaintiff. Thereupon the defendant removed the case to the circuit court upon a writ of error, and the circuit court reversed the judgment of the justice of the peace, and rendered judgment against the plaintiff for costs. The plaintiff appeals.</p>

<p>1. Practice in Supreme Court: abstract not denied by amendment taken as true. Where appellant’s abstract-is not denied by an amended abstract, it will be taken as true. A denial contained in the argument will not be considered.</p> <p>2. Judicial Sale: satisfaction of judgment by: sale set aside: judgment restored. Where land was sold at sheriff’s sale in satisfaction of plaintiff’s judgment, but the sale was afterwards set aside by the court, held that the satisfaction of the judgment should also have been set aside; and the overruling of a motion to that end was error.</p>

<p>1. County Bridges: liability of the county for neglect to make slight repairs. Conceding that it is tho duty of a road supervisor to make slight repairs about a county bridge or its approaches, still the same duty devolves upon the county when the repairs are not made by the road supervisor. Code, § 527. Wilson v. Jefferson Go., 13 Iowa, 181, distinguished, and Moreland v. Mitchell Co., 40 Iowa, 394, followed.</p> <p>2. Practice in Supreme Court: presumption in favor of trial. court. Where the evidence is not all before this court, and an instruction complained of assumes that there was evidence tending to establish a certain material fact, it must be presumed, for the purpose of reviewing such instruction, that there was such evidence.</p> <p>3. -: ERROR PRESUMED TO HAVE BEEN PREJUDICIAL UNLESS THE: contrary is shown. This court cannot presume that an erroneous instruction was without prejudice unless that fact affirmatively appears.</p> <p>4. Practice: instructions: specific better than general. While the refusal to give a specific instruction, the principal of which is presented in a general instruction already given, may not be ground for-reversal, it is better to give tbe specific instruction, when requested.</p>

The defendant was indicted for the crime of breaking and entering a store, with tbe intent to steal and carry away goods, wares and merchandise kept therein for sale. He was tried and convicted, and now appeals to this court.

AotioN to recover damages caused by the alleged negligence of the city in failing to provide sufficient outlets for surface water. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

Appeal from Glarlte Ovrouit Oov/rt. AotioN in chancery to set aside a will. A decree was entered granting the prayer of petitioners. Defendants appeal.

This is an action upon certain promissory notes, and to foreclose a mortgage given to secure the payment of the same. The notes and mortgage were originally given to the defendant, S. F. Winch. He assigned the notes and mortgage in writing -to the plaintiff. At the time of the assignment, there was but one of the notes due.

The defendant was indicted for the crime of an assault with’an attempt to commit murder. There was a trial by the court without a jury. The defendant was found guilty, and was sentenced to confinement in tbe penitentiary for two years. Erom the judgment he appeals.

The defendant was charged by indictment with murder in the second degree, in killing one L. K. Phillips. He was tried, convicted, and sentenced to the penitentiary for thirteen years, and he appeals.

This is a proceeding in which it was sought to probate the last will and testament of P. S. Olson, who died in Taylor county, in this state, in December, 1882. The will was filed in the office of the clerk of the Taylor circuit court, and a time was fixed for the probate thereof.

Action for partition of certain land. After. the shares were settled, the parties agreed upon a division of the land, and that the action should be dismissed. Before dismissal, however, the plaintiff filed a motion to tax his attorney’s fees as a part of the costs, which motion was overruled. The plaintiff excepted, and from the order overruling the motion he appeals.

The defendant, Marcus Kavanaugh, Jr., entered into a contract in writing with, the Narrow Gauge Railway Construction Company, for the construction of a section of railroad between the Des Moines River and Boone, Boone County, Iowa. He agreed to construct and finish the work in a substantial and workmanlike manner, and to finish the same by October 1, 1881.

<p>1. Promissory Note: additional signature not authorized by maker: effect on note and on debt. The signing of a promissory note by one as a surety, after its execution by the original maker, without bis knowledge or consent, is a material alteration, which will defeat theinslrument; but, where such alteration has been made innocently, and without any fraudulent purpose, the payee may recover against the original maker in an action brought upon the original consideration.</p> <p>2. Practice in Supreme Court: no errors assigned. Objections urged by an appellant who has assigned no errors cannot be considered.</p>

Action on a promissory note. The defendant, Henry Moeller, the principal on the note, pleaded that the payees' in the note, at the time it was given, contracted to employ him as a traveling salesman, at seventy-five dollars per month and expenses. That he was at all times ready and willing to-en ter upon said employment, and that he was damaged by reason of the payees in the note having failed to do as they had contracted to do.

Carskaddon, as sheriff, attached a stock of goods, wares and merchandise, under certain writs of attachment against J. R. Billings. The plaintiff, claiming to be the owner of the goods, brought this action to recover of Carskaddon the value of the goods levied on by him.

This action is brought by plaintiff to recover damages on account of personal injuries sustained by him, in consequence of an obstruction and nuisance which, he alleges, the defendant negligently permitted to .remain in one of its streets. There was a verdict for plaintiff for $5,000. Defendant hied a motion for a new trial, one of the grounds of which was that the damages were excessive.

Appeals from Carroll Circuit Court. ■ These are proceedings to condemn the right of way for defendant’s road through lands belonging to the plaintiffs. The-lands are situated in Greene county. Appeals were taken to-the circnit court from the assessments made by the commissioners appointed by tbe sheriff. The amounts of the assessments made by tbe commissioners were deposited with the-sheriff.

<p>1. Practice in Supreme Court: no trial de novo without evidence certified. A cause cannot be tried de novo in this court unless the evidence be certified by the judge of the court from which it comes.</p>

Afjpeal from Limn Circuit Court. The plaintiff is a judgment -creditor of the defendant, Elizabeth C. Smith, and brings this action to set aside certain conveyances of real estate made by her to the other defendants, on the ground that the same are fraudulent and void. The court granted the relief as to a portion of the real estate in question, and denied it as to the remainder. Both parties appeal, the defendants perfecting their appeal first.

The plaintiff, while walking on one of the sidewalks of the town of Nevada, claims to have received an injury because of a defect in the sidewalk. To recover damages for such injury this action was brought. There was a trial by jury, verdict and judgment for plaintiff, and the defendant appeals.

Action for a writ of mandamus to compel the several boards of directors of the defendant districts to meet and apportion among themselves a certain alleged liability. The defendants demurred to the plaintiff’s petition, assigning nine grounds of demurrer. The court overruled the demurrer as to eight grounds, and sustained it as to one. The plaintiff electing to stand by its petition, judgment was rendered against it for costs.

<p> Appeal from Pottawatomie District Court. </p> <p>Action upon a policy of insurance. There was a judgment upon a verdict for plaintiffs. Defendant appeals.</p>

The defendant was jointly indicted with A. A. Kennedy, Jr., James A. Eedfield, E. C. Lyman and G, H. Brown. He was tried separately, and was found guilty, and sentenced to a term of imprisonment in the penitentiary; and from this judgment he appeals.

This is an action in equity, by which the plaintiff seeks to foreclose a mortgage upon certain real estate, and to set aside certain alleged fraudulent and void tax deeds upon the same. There was a decree for the plaintiff, and the defendants appeal.

Action upon an indemnifying bond. The defendant,'the St. Paul Harvester Works, obtainécl judgment against tbe plaintiff, and caused an execution to be issued and placed in the hands of the defendant, Farnsworth, as sheriff of Howard county, and at the same time gave him an indemnifying bond. Farnsworth levied upon a horse, mule and cow, and a lumber wagon. The plaintiff lias brought this action upon the bond, claiming that the property levied upon was exempt from execution.

Affeal from Loo District Court. Action for a personal injury alleged to bave been sustained by tbe falling of a pile of lumber owned by the defendant and piled by it on its premises. The plaintiff was employed by tbe defendant as a carpenter in building a round house.

Fay & Conkey, a partnership doing business in Illinois, failed in January, 1883. They confessed judgment in the circuit court of the United States for the northern district of Illinois in favor of certain creditors for a large amount.

Ayjyeal from Hamilton District Court. Action to recover for a malicious prosecution. There was a judgment for plaintiff upon a verdict'for one dollar. Defendant. appeals. The facts of the case involved in the questions decided are fully stated in the opinion.

This is an action in equity to enforce specific performance of an alleged contract by defendant to sell to plaintiff a section of land. The circuit court denied the relief demanded, and dismissed plaintiff’s petition. Plaintiff appeals.

Action on two promissory notes — one payable to the Dlaintiff, and the other to the Monroe County Bank. This last note is negotiable, and the plaintiff claims that it was assigned to her by the bank before it was due, for a valuable consideration.

The plaintiff alleges in bis petition that on the twenty-ninth day of August, 1879, a certain cause was tried in the circuit court of Marshall county, wherein the defendant, Eliza Van Horn, was plaintiff’, and he was defendant; that on said trial judgment was rendered in his favor against said Van Horn, on the first count of his petition, for $244.75, and against him, and in favor of Van Horn, on the second count of his petition, for $125, and costs, amounting to $10; that…

The plaintiff sold the defendant certain real estate, and gave him a bond to convey the same when the purchase money was paid. This action was brought to foreclose the bond,andN. O. Michaels was made a defendant. The defendant, Davis, filed a cross petition against his co-defendant, Michaels. As to the controversy between the defendants, the Court found for and entered a decree in favor of Davis, from which the defendant, Michaels, appealed.

Action in equity to quiet title to one hundred and twenty acres of land. The land was at one time owned by one Peter Miller, and both the plaintiff and the defendants claim under him. The plaintiff claims under him by deed executed September 20,1877. The defendants claim by an execution sale, made in October, 1880, upon a judgment against Peter Miller, the appellant’s grantor, and in favor of one Daniels.

Appeal from Monroe District Court. Action at law upon tbree promissory notes; judgment for plaintiff on one of the notes, and defendants ajipeal.

Action to recover for expenses incurred by the plaintiff on account of an insane person alleged to have a settlement in the defendant county. There was a judgment for the defendant. The plaintiff appeals.

Action on a promissory note and to foreclose a mortgage given to secure tlie same. The court rendered judgment upon the note, but refused to render a decree of foreclosure of the mortgage. The plaintiff appeals.

Action in chancery. There was a decree in the district court granting to plaintiff the relief prayed for in his petition. Defendants appeal. The allegations of the pleadings and the facts of the case sufficiently appear in the opinion.

From this action plaintiff appealed to the circuit court, which, upon the trial of the case, reduced the assessment as corrected by the council to the amount originally fixed by the asssessor. From this judgment defendants appeal.

This is a certiorari proceeding to test the validity of certain taxes levied on the property of the plaintiff. Judgment was rendered for the defendants, and the plaintiff appeals.

Dependant was convicted of the larceny of thirteen head of cattle, and thereupon was sentenced to confinement in the penitentiary for two years. He now appeals to this court.

The plaintiff states that he is a citizen and tax-payer ol said county, and that the board of supervisors had, upon the petition of the defendants, Eoss and Bell, directed the auditor of said county to issue a warrant on the treasurer in favor of Eoss and Bell, in payment of certain taxes which the hoard had directed to he refunded to them. The auditor was made a defendant, and an injunction was ashed restraining the issuing of the warrant.

Appeal from Mahaska District Court. The defendant was indicted, tried and convicted for the crime of seduction, and he appeals.

Actions for the admeasurement of dower. They involve the same questions of law, and may be disposed of together. The different tracts of land in question were formerly school land. At one time one Eobert IT. Eobinson, who was the husband of the plaintiff, but now deceased, held contracts of purchase of these lands from the school-fund commissioner.

Action in chancery for an accounting and to recover for certain sums of money paid by plaintiff in satisfaction of taxes levied upon certain lands, the titles whereof he, at the time, in good faith claimed, but which, by certain adjudications of the courts, were afterwards declared to be in defendant. The petition also claims a lien upon the lands, and its enforcement for the sum found due plaintiff.

<p>1. This case, involving the same questions as are discussed and decided in paragraphs three, four, six and seven (see head-notes 2, S, 6, 7) in the opinion in Goodnou' v. Litchfield, ante, p. 275, the conclusions therein reached are followed. -</p> <p>2. Practice in Supreme Court: review limited by printed brief. A point not presented in the printed brief of a party cannot be considered, even though it is presented in oral argument, unless it be done by mutual understanding between the parties and the court.</p>

Action for the recovery of an undivided interest in certain stacks of grain.

<p> Appeal from Carrol District Court. </p> <p>This is an action of replevin for certain cattle. The plaintiff claims to be the absolute owner of the property. The defendant is sheriff of Carroll county, and claims that be is entitled to tbe possession of the cattle by virtue of an attachment at the suit of one Minchen against G. W. Campbell. There was a trial by jury. The court instructed the jury to return a verdict for the defendant, upon which a judgment was rendered, and plaintiff appeals.</p>

<p>1. Practice in Supreme Court: assignment of errors: when to be filed. An assignment of errors filed within the time prescribed in section 3183 of the Code is filed in time, though not until after the filing of appellee’s argument. Betts v. Glenwood, 52 Iowa, 124, distinguished.</p> <p>2. -: CERTIFICATE OF TRIAL JUDGE TO EXPLAIN RECORD. It is not competent in this court to explain or contradict the record by a certificate of the trial judge, and such certificate will he stricken from the files on motion. Pearson v. Maxfield, 47 Iowa, 135, followed.</p> <p>3. Judicial Sale: of real estate under execution: status of title AFTER EXPIRATION OF TIME FOR REDEMPTION AND BEFORE DEED made. Where real estate is sold upon execution subject to redemption, the equitable title, after the expiration of the year for redemption, hut before the sherff’s deed is made, is in the person entitled to the deed, while the legal title remains in the execution debtor, or his grantees; and in such case, where the title is in dispute between'the legal and equitable owners thereof, it would be error to render a decree quieting the title in the legal owner. And such decree was equally erroneous in this case, where a deed had been made pursuant to the sale, but the same was premature, because made before the time for redemption had expired. Such deed, if it conveyed no title to the grantee, divested him of none.</p> <p>4. -: - deed to one not purchaser: presumption of interest. Where a deed is made pursuant to a sheriff’s sale, but is made to one not the original purchaser, it will bo presumed, in the absence of a contrary showing, that the purchaser has transferred his interest to the grantee named in the deed.</p> <p>5. Practice in Supreme Court; character of appeal determined from whole record. Although the record in this case (in equity) recites that an issue of fact was tried and determined by the court below, but no evidence is certified, and, taking the whole record together, this court is satisfied that the case was in fact decided and the judgment rendered on a demurrer, and it appearing that there was error in the ruling on the demurrer, held that the judgment should be reversed.</p>

Actton to recover for damages alleged to liave been sustained by reason of tbe accumulation of water on tbe plaintiff’s land, caused by tbe construction of the defendant’s embankment, without tbe construction and maintenance of proper ditches and culverts. There was a trial to a jury, and verdict and judgment were rendered for tbe plaintiff. Tbe defendant appeals.

Action to recover damages because of tlio failure of tbe defendant to deliver one liundred barrels of cranberries, as the plaintiffs claim it contracted to do. Trial by jury, verdict and judgment for the defendant, and plaintiffs appeal.

<p> Appeal from Gass Cirewit Cowt. </p> <p>The plaintiffs commenced an action at law against the defendant, Jones, and caused an attachment to issue therein, and levied the same upon a stock of goods then in the possession of Geo. E. Pennell, as assignee of said Jones under a general assignment for the benefit of creditors. After-wards the plaintiff commenced an action in equity against said Jones and the other defendants, to set aside the general assignment made by Jones to Pennell, and to set aside three chattel mortgages upon the goods, made by Jones to the defendants, McWaid, Whitney, and McDaniels, upon the ground that the mortgages and assignment constituted hut one general assignment, with a fraudulent preference among the creditors of Jones. There were answers by the defendants, and cross-petitions by the mortgagees, and the law action was consolidated with the action in equity, and a trial was had to the court, and a judgment was rendered for plaintiffs against the defendant, Jones, for the amount doe plaintiffs, and the plaintiffs’ petition in equity was dismissed, tlie assignment held valid, and tbe three chattel mortgages were held to be binding upon all the parties, and a foreclosure of them was decreed. Plaintiffs appeal.</p>

<p>1. Practice: motion to strike out part of petition : error without prejudice. The overruling of a motion to strike out portions of the petition is no ground for reversal, even if erroneous, where the motion did not strike at any vital part of the petition, and the sustaining of the motion could not have henefitted the appellant.</p> <p>2. Evidence: erroneous admission of: error without prejudice. The admission of evidence which was immaterial and incompetent is no ground for reversal, where it appears that the evidence so. erroneously admitted could have wrought no prejudice to appellant.</p> <p>3. -: statute of frauds: objection too date. The objection, made for the first time in the argument in this court, that certain evidence admitted on the trial was inadmissible under the statute of frauds, which was not pleaded as a defense, comes too late, and cannot he considered.</p> <p>4. Sale of Personal Property for Future Delivery: demand: time of delivery. Under a contract of sale of personal property, to be delivered at the option of the buyer on or before a certain date, the buyer has the right to demand the immediate delivery thereof at any time up to that date, hut if no demand is made until after the time stipulated, the seller is entitled to a reasonable time after demand within which to deliver.</p> <p>5. -: offer to deliver: what is sufficient: readiness to deliver: disposition of perishable property. Under a contract of sale of personal property for future delivery, an offer in writing expressing a readiness to deliver, made on the part of the seller, is sufficient, under section 2105 of the Code, to hind the buyer, in a case where the buyer denies his obligation to accept the goods under the contract; and it is immaterial in such a case whether the seller has or has not the goods ready for delivery at the time ihe offer is made; nor is he compelled to retain the goods, if of a perishable nature, beyond a reasonable time, in order to have them ready for delivery whenever the buyer may choose to accept them.</p> <p>6. Practice in Supreme Court: verdict not disturbed where evidence is conflicting. Where the evidence is conflicting, the refusal of the trial court to grant a new trial, on the ground that the verdict is not sustained by the evidence, will not be disturbed, even in a case where this court has doubts as to the sufficiency of the evidence.</p> <p>7. Evidence: parol to enlarge written contract : degree of proof required. Where it is sought in an action at law to enlarge a written contract by a subsequent parol contract, the rule applicable to jury trials prevails, viz., that the issues are to be determined by a preponderance of the evidence; and an instruction to the effect that plaintiff must establish the enlargement of the contract by evidence “clear, satisfactory, and not made up of mere loose and random statements, was as favorable for defendant as he could demand. The rule in equity, where it is sought to show that a deed absolute on its face is in fact a mortgage, and in like cases, is different. See cases cited and distinguished.</p>

This case was submitted to tbe circuit court upon an agreed statement of facts entered into between tbe plaintiff and Espeset, wlio is county treasurer. Tbe question submitted to tbe court was, whether tbe plaintiff was entitled to a mandamus, compelling tbe defendant, as treasurer, to execute to the plaintiff a deed for certain real estate sold at a sale for delinquent taxes.

The plaintiff avers tliat tbe defendant is a corporation, incorporated under the laws of Iowa; that he is the owner of twenty-six shares of stock in the corporation; that the defendant has been guilty of bad management, by reason of which the stock has become depreciated in value, and he has thereby sustained damages.

Ajpgpeal from Gerro Gordo Circuit Court. Action on an account for grain, seed, rent of warehouse, etc. There was a verdict for plaintiff, which, upon his motion was set aside, and a new trial ordered. The defendants apjieal.

Apjpeal from Mitchell Cvrctiit Court. Action on a written contract executed, as the plaintiff claims, by the defendant and one Bennett, as partners, by the terms of which they undertook to dig, or rather drill, a well for the plaintiff, to a sufficient depth to furnish a good and sufficient supply of water. It is alleged in the petition that said parties failed to comply with the contract on their part.

Appeal from Mahaska District Court. The defendant was convicted of the crime of larceny, and sentenced to imprisonment in the penitentiary. He appeals.

This action was brought on a written contract executed, as claimed by the plaintiff, by the mayor on the part of the town, and O’Conner & Ware, whereby the latter agreed to drill a well, upon certain terms and conditions, for the plaintiff. It was stated in the petition that the defendant was a member of the partnership of O’Connor & Ware, and that they had failed to comply with the contract on their part, whereby the plaintiff was damaged.

This is an action in equity, and tbe controversy involves the question as to the priority of two mortgages upon certain real estate. One of these mortgages is owned by the plaintiff, and the other by the defendant, Lucas. The court decreed the mortgage of Lucas to be prior and superior, and the plaintiff appeals.

Afjyeal from Lee District Court. This is an action in equity by which it is sought to correct a conveyance of certain real estate, which, it is alleged, did not express the real contract of the parties thereto, by reason of fraud or mistake in reducing the contract to writing. There was a trial by the- court, and a decree for the plaintiff Defendants appeal.

The plaintiff, claiming to be tbe owner of certain land described in the petition, 'brought this action to restrain the execution of a deed to the defendants by the sheriff, in pursuance of a sale under an execution against William Balwerk, Jr. The allegations of the petition were denied. The court found for the plaintiff, and granted the relief asked. The defendants appeal.

The defendant filed liis petition with the board of -supervisors for the establishment of a highway. Such proceedings were had upon this petition that the establishment of the highway was recommended by a commissioner who was appointed to examine into the expediency of establishing the same.

<p>1. Practice: instructing the jury as to the issues. It is the province of the court to determine the issues involved in a case, and it is error for the court to refer the jury to the pleadings to ascertain what the issues are.</p> <p>2. Attachment: of mortgaged personal property: writ wrongfully sued out: measure of damages on bond. Where an attachment wrongfully sued out was levied upon chattels which the defendant had previously mortgaged, and afterwards the chatties were taken from the sheriff and sold under the mortgage for less than their value, and the surplus, after satisfying the mortgage, was paid over to the sheriff holding the writ, held that the attachment plaintiff was not liable for any loss occasioned to the defendant by reason of the sale under the mortgage, but only for the surplus paid over to the sheriff, with interest at six per cent, and the value of the defendant’s right, if any, to the use of the chattels from the time of the levy till they were taken under the mortgage.</p> <p>3. -: WRONGFULLY SUED OUT: MEASURE OF DAMAGES ON BOND. Where a defendant in attachment has been deprived of his property under 'a writ wrongfully sued out, he is entitled to recover upon the attachment bond at least the fair cash value of the property when taken, with six per cent interest thereon.</p> <p>4. -: MALICE IN SUING OUT writ: ADVICE OP COUNSEL TO REBUT: instruction. Before the advice of counsel can be interposed to rebut the charge of malice in wrongfully suing out a writ of attachment, it must appear that a full and fair statement of the facts, as distinguished from legal conclusions, was submitted to tlie attorney; and an instruction asked, to the effect that, if, on (he case submitted, the plaintiff in attachment was advised by-his attorney that he had a good cause of action and a right to sue out the attachment, then he was not liable l'or exemplary damages, was properly refused, when there was no evidence showing what facts were submitted to the attorney.</p> <p> . Under section 2961 of the Code, a defendant in attachment, where the writ is wrongfully sued out, is not entitled to recover attorney fees for defending the whole case, but only the reasonable lee of his attorneys for their services in the auxiliary proceeding'.</p>

Action upon an. account. The defendant for answer “admits that it is a church for religious purposes, but denies that it is a corporation, and denies that it now has, or eyer did have, the authority to make contracts.” There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

This is an action in equity which involves the priority of the lien of a judgment of the plaintiffs, and a judgment of the intervenors, Lawrence & Dungan, upon certain real estate, the legal title to which is in Mary Shum. The court below found and decreed that the judgment of the plaintiffs- was the prior lien, and Lawrence & Dungan appeal.

The defendant was convicted upon an indictment for burglary, and sentenced to ten years confinement in the penitentiary. He now appeals to this court. The facts involved in the points ruled appear in the opinion.

This is an action at law to recover a claim of $260, which it is alleged was owing by the defendant to one J. W. Ellis, who assigned the claim to plaintiff. There was an answer taking issue with the averments of the petition, and setting up special defenses. There was a demurrer to certain counts of the answer, which was sustained. A jury was waived, and a trial was had by the court, and a judgment was rendered for the plaintiff. Defendant appeals.

Action in chancery to quiet the title of certain lands, and to partition the same. One of the defendants, Shultz, filed an answer to the petition, to which plaintiffs demurred. The demurrer was overruled, and, plaintiffs refusing further.to plead, their petition was dismissed. They now appeal.

Plaintiee brought this action to recover damages on account of personal injuries sustained by liim while in defendant’s employ in sinking a coal shaft. There was a general verdict for plaintiff, also certain special findings by the jury. Defendants moved the court to set aside the general verdict, and to enter judgment for them on the special findings.

The defendant in each case was separately indicted and convicted of the crime of nuisance in keeping and maintaining a saloon, and in selling therein intoxicating liquors. Each separately prosecutes an appeal in his case.

<p>1. Railroads: right of way damages: the whole property to be considered: duty of commissioners. Where two lots contiguous to each other are improved together as one property, and it is sought to appropriate one of them for right of way purposes, the owner of the lots is entitled to compensation for the injury to the property as awhole, and not only for the lot actually appropriated; and in such case, although the notice of condemnation named the one lot only, it was competent for the commissioners, under section 1249 of the Code, to find that the two lots constituted hut one property, and to assess (he damages accordingly.</p> <p>■2. -: condemnation of right of way: appeal by land owner: his title presumed. Where two contiguous lots constituted hut one property, and it was sought to appropriate one of them only for right of way purposes, but the commissioners assessed the damages to the whole property, and the person to whom the notice of condemnation was given as the owner thereof appealed, hut the railway company did not appeal, nor in any other way raise an issue as to the ownership of the other lot, held that, from the facts thus appearing of record, the legal presumption arose that the appellant was the owner of both lots, and it was not necessary for him to prove his title upon, the trial of his appeal.</p> <p>3. -: --: measure of damages: excavation. Where a portion of a tract of land is sought to he appropriated for right of way purposes for a railroad, the owner of the tract is'entitled to compensation for all damages which will result to the portion of the premises not appropriated, from the proper construction and use of the railroad; and such compensation should he made in the condemnation proceedings. It is accordingly held that the commissioners should take into consideration the fact that the proper construction of the road would require a cut to be made through the premises, and should assess the damages accordingly.</p> <p>4.--:-; -: proximity op depot. And upon an appeal by the property owner in such a case, evidence that the company’s freight depot was located on the block east of the premises in question, and that it had constructed a number of tracks over that portion of the premises taken for right of way, was admissible only to show the extent to which the company would probably use the ground taken in properly carrying on its business, and not to show how much the appellant was damaged by reason of the number of tracks and the proximity of the depot to his premises; because for such damages the law affords him no relief. ■</p> <p>5.-: -:-: presumption that all land taken will be used. Where two lots constitute but one property, and it is sought to appropriate the whole of one of the lots to right of way purposes for a railroad, the company cannot have the damages assessed on the theory that it will use only a part of it; and where a building erected on the other lot extends a few feet over the lot appropriated, it is proper, in assessing the damages, to consider the cost to the owner of removing such portion of the building, and putting the building, after such removal, in proper condition for use and occupancy.</p> <p>6. -: -:-; evidence as to selling price of neighboring lots. In estimating the damages which the owner of city' lots should recover on account of the appropriation of one of them for railway purposes, evidence of the price at which other lots, not shown to be similar to the ones in question, were sold about the time the condemnation proceedings were begun, was not admissible for the purpose of establishing a criterion by which the jury might form a judgment as to the value of the lots under consideration. Winlclemans v. Des M. 2?. W. D’y Co., 62 Iowa, 11, distinguished.</p> <p>7. -: -:-: retention of fee by land-owner. While a railway company, by condemnation of right of way, obtains only an . easement in the land appropriated, and the lee remains in the original owner, yet, since the appropriation is made on the theory that the easement will be perpetual, and there was no evidence in this case of the existence, either on the surface of the land or beneath it, of any mineral or other material, which the owner could lawfully remove under the right which the law reserves to him, his measure of damages was not different from what it would have been had the proceedings divested him of all interest in the land; and it was not prejudicial error for the court to refuse to instruct the jury that the owner was not divested of the fee,</p> <p>8. Practice: special interrogatories to jury properly refused. A number of special interrogatories which defendant asked the court to propound to the jury were properly refused, because some of them were, based upon erroneous theories as to points of law herein-before discussed; another called for a finding not upon an ultimate question of fact; and the answer to another, however given, could have shed no light upon the correctness of the general verdict.</p>

<p>1. Conveyance: by tenant in common: of whole interest in part of land. A tenant in common may make a valid conveyance of any undivided portion of kis undivided interest of Ike common estate, but he cannot convey the whole interest in any portion of the land, because this would interfere with kis co-tenant’s right of partition. Farr v. Reilly, 58 Iowa, 099, followed.</p> <p>2. Title by Adverse Possession: evidence establishing. Defendant took a deed from one of several heirs for his undivided interest in a large quantity of land, whereupon he look possession of and improved eighty acres of it, rented it for a number of years, and collected the rents and paid tbe taxes, and afterwards moved upon it, and occupied it continuously as a homestead, and exercised all ordinary acts of ownership, up to the beginning of this suit — more than twenty years subsequent to the date of his deed; the co-heirs of his grantor never in the meantime making any claim to any interest in the eighty acres, though two of them lived near the land. In this aefion, brought by plaintiff, (who had obtained quit-claim deeds from some of the heirs,) to quiet the title in him to an undivided interest in the land, defendant testified that he bought and paid for the whole eighty, and ihat he supposed that he had acquired it by his deed; and his testimony was not disputed, but was strongly corroborated by all the facts, except the deed itself. Reid that the evidence (for which more fully see opinion) warranted the court helow in finding that defendant had held possession of the land under a claim of solé ownership from the date of his deed; that his alleged co-tenants must be presumed to have had knowledge of his claim, and that he had a good title by adverse possession as against tho plaintiff.</p> <p>3. Title to Real Estate; ihkocekt pub chaser: who is not. One who purchases land in the possession of another, with actual knowledge of facts which render such possession adverse to his grantor, cannot claim to he an innocent purchaser, especially where he claims under a quit-claim deed.</p>

The plaintiff was treasurer of Clay county for four successive terms, commencing on the 1st day of January, 1872, and ending on tlie 2d day of January, 1880. On the 2d day of January, 1883, lie commenced this action against the county, claiming a balance due him for salary for each year that he performed the duties of tbe office. The claim was made in the petition in the form of a bill or open account against the county.

This is an action to recover damages for an alleged unlawful, negligent, willful and malicious removal of the plaintiff ' from a train of cars of the defendant by a passenger conductor. There was a trial by jury, and a verdict and judgment for the plaintiff for $500. Defendant appeals.

Action to redeem forty acres of land from an alleged mortgage. The defendant holds the legal title to the land by deed from one Breezley, and denies that theplaintiffs have any interest in the same. The court dismissed the plaintiffs’ petition, and they appeal.

Action to recover for money advanced by plaintiff to defendant upon a contract to sell and deliver to the plaintiff four thousand bushels of good yellow corn. The plaintiff avers that he paid the defendant upon the contract one thousand dollars; that the defendant commenced delivering corn, but did not deliver the quality of corn called for by the contract, and refused to deliver any other.

This was a proceeding in the court below for the probate of the will of Lizzie Collins. The cause was tried to a jury, and a verdict had for the defendant, which, upon motion of plaintiff, was set aside. Defendant appeals. The facts of the case appear in the opinion.

This is an appeal by the plaintiff from an order striking bis amended and substituted petition from the files, and from a judgment against him for costs.

<p> Appeal from Dallas Circuit Court. </p> <p>Action to recover a stock of jewelry. The defendant is sheriff, and took possession of the goods in controversy under an attachment against one Lerew, and he claims that a sale of the goods made by Lerew to plaintiff is fraudulent, because.made to binder and delay creditors. Trial by jury; verdict and judgment for tbe plaintiff, and defendant appeals.</p>

Defendant instituted a proceeding under tbe statute for tbe condemnation of a lot in tbe city of Des Moines, belonging to plaintiff, for right of way for its railroad. Commissioners were appointed by the sheriff to assess the damages, and an appeal was taken to the circuit court from the assessment by the the commissioners. The case was tried in Warren county, and the statutory order was entered by the court on the verdict of the jury. Defendant appeals.

Action to recover the value of a certain building, and personal property stored therein, which building and property were destroyed by fire. The defendant’s liability is predicated upon the neglect of the Des Moines Water-Works Company to supply sufficient water to extinguish the fire.

' Action to recover real estate. Both parties claim title; the plaintiff under the patent, and the defendant under tax deeds. One of the latter was executed in 1870, and the other in 1874. In a reply, the plaintiff pleaded facts showing that the tax deed executed in 1870 was void, because there had been no assessment of the land for the years on which it is claimed the taxes were levied.

Action for the recovery of specific personal property, to-wit, a horse, buggy, harness and buffalo robe. The defendant claims the right to hold possession of the property by virtue of a livery-stable-keeper’s lien. There was a trial without a jury, and judgment was rendered for the defendant for costs. The plaintiff appeals.

Appeal from Polk Circuit Cou/rt. Action in chancery to foreclose a mortgage. The plaintiff’s petition was dismissed, and it now appeals to this court.

This is an action by which the plaintiff, who is a physician, seeks to recover for medical attendance upon certain smalljiox patients, which service, it is alleged, was performed by order of the board of health of the city of LeMars. There was a trial by the court, and a judgment for the plaintiff. Defendant appeals.

Action by a passenger upon a train, running on defendant’s railroad, for injuries sustained from insolent, abusive and offensive words spoken to her by the conductor. There was a judgment upon a verdict for defendant. Plaintiff appeals.

This is an action to recover a balance of money alleged to be due upon a promissory note, and to foreclose a mortgage upon certain real estate to recover tlie same. The defendants claim that the note has been fully paid. There was a trial by the court, and a decree for the defendants. Plaintiff appeals.

ActioN on a judgment recovered in tbe state of Minnesota. The defendant pleaded a general denial, certain special defenses, and a counter-claim. A demurrer to the second, third and fourth counts or paragraphs of the answer was sustained, and the defendant appeals.

The defendant was convicted of the crime of rape upon one Nettie Sadkett, and sentenced to -imprisonment in the penitentiary for fourteen years. He appeals.

Action upon an account. The defendant pleaded a general denial. He also, by way of counter-claim, pleaded tbat the plaintiff was indebted to him for interest on money loaned, for the use of certain land, for money paid to remove an incumbrance from land purchased of plaintiff, for labor and lumber furnished plaintiff, and for an overpayment for land. There was a trial to a jury, and verdict and judgment were rendered for the defendant for $208.65. The plaintiff appeals.

The petition states that jilaintiff entered into a written contract with tlie Des Moines & St. Louis Railroad Company for tbe construction of a portion of the line of railway of said company between the city of Des Moines and Albia, and after-wards entered into a certain other contract with said company for the construction of a certain other portion of said railway; (Copies of the contracts are attached to and made a jiart of the petition;) that the plaintiffs fully…

Action upon a certificate of deposit made by tlie defendant as a private banker. By way of a second count, tbe plaintiff declares on account for money for which the certificate was given. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

This is an action by which it is sought to cancel and set aside certain conveyances and mortgages, upon the ground that they were executed without consideration, and in fraud of the plaintiff, who is a creditor of B. W. Jamison. There was a trial by the court, and a decree was entered canceling a mortgage held by John Jamison upon certain real estate. The defendant appeals.

<p>1. Indictment: not aided by intendment: obstruction op highway by railway company. An indictment cannot be aided by intendment, nor omissions therein supplied by construction; and where the acts charged may, under certain circumstances, be lawful, and these circumstances are not negatived, the indictment is insufficient, even • though it be alleged that the acts charged were willfully and unlawfully done. So held in this case, where the indictment charged defendant with the obstruction of a highway, without alleging that the acts charged were not done in the construction of a railway, or, if so, that it did not put the highway in repair within the time required by statute. See Code, § 1262.</p>

Action for damages alleged to have been sustained by reason of a nuisance caused by an excavation in the earth, and by water collecting and standing therein. There was a trial to a jury, and-verdict and judgment were rendered for the plaintiff. The defendant appeals.

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

Appeal-from Humboldt Circuit Court. The plaintiffs allege in tlieir petition that in tbe year 1877 they were doing business as partners, under tbe firm name of Lumpkin, Moody & Oo., and that they sold to one Ella A. Averill a bill of lumber of tbe value of $134.48, to be used in tbe repair of a dwelling bouse, and that said lumber was used in repairing said building, and in the betterment thereof; that they afterwards instituted tbe suit against said Ella A. Averill and her…

The plaintiff is tbe bolder of two promissory notes, purporting to be guaranteed by tbe defendants. Tbis action is brought to recover of them as such guarantors. Tbe question arises upon the plaintiff’s demurrer to the defendants’ answer. The court sustained the demurrer, and, the defendants electing to stand upon their answer, judgment was rendered against them for the amount of the notes and attorney fees provided therein. The defendants appeal.

The petition states that the plaintiff, without fault ou his part, “stepped and fell,” while passing along a street of the city, “in consequence of the defendant’s officers, agents and employes having negligently and carelessly permitted stones, brick and other building material to be placed upon and remain on said street, so as to cause'large quantities of ice and snow to accumulate and remain for a great length af time on the part of said street where plaintiff was…

Action upon an account for legal services alleged to have been rendered for the defendant’s intestate, Samuel Coskery, deceased. The amount claimed is $225. The court allowed $20, with some interest thereon. The plaintiff appeals.

Action for malicious prosecution. It is stated in tbe petition that the defendants caused the plaintiff to be indicted for the crime of grand larceny, and that, in so doing, they acted maliciously and without probable cause, and that they conspired together for the purpose aforesaid, and that said plaintiff has been acquitted of said charge. The defendants pleaded a general denial. Trial by jury, judgment for the plaintiff, and defendants appeal.

<p> Appeal from. Polls Cirev.it Court. </p> <p>Plaintiffs allege in tbeir petition that in tbe month of August, 1882, they were the owners of two chattel mortgages on a stock of goods and merchandise, given by one George "W. Hamilton, to secure an indebtedness of about $150, which he ivas owing them, and that defendant seized and converted said mortgaged property to his own use; and they ask judgment for the value of their interest therein. The defendant answers that he seized the property by virtue of a writ of attachment, issued by the circuit court of the United States for the district of Iowa, and placed in his hands, as deputy United States marshal, to be served; that the property at the time of the seizure was in Hamilton’s possession, and was subject to seizure; that he seized but a portion of the stock covered by the mortgage, and left in the store where found more than enough goods to satisfy plaintiffs’ claim, which, by the exercise of proper diligence, they might have applied in satisfaction of said debt; that, prior to the execution of the mortgages to plaintiffs, Hamilton had executed a mortgage on the same property to Perry, Cook & Towner, to secure a debt of $631.32, which he was owing them; and that, on the next day after the execution of the second mortgage to plaintiff, he executed to A. P. Wright, trustee, a mortgage on the same property covered by the mortgages to Perry, Cook & Town and to plaintiffs, to secure certain other creditors named therein; that each of these mortgages was executed by Hamilton in contemplation of insolvency, and that he was in fact insolvent at the time, and that the execution of all of said instruments constituted but one transaction, and amounts to a general’ assignment for the benefit of creditors, and that such assignment, and the instruments constituting it, are void, because a preference is thereby given to certain creditors. He also alleges that said mortgages were executed by Hamilton with intent to hinder, delay and defraud creditors. There was a verdict and judgment for plaintiffs, and defendant appeals.</p>

This is an action in equity by which it is sought to cancel and set aside a lease of certain coal lands and mines, and to enjoin the defendants, who are the lessees, from using the lands or mines of plaintiff to mine coal from other lands, and for the appointment of a receiver pending the litigation. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

The indictment, omitting tbe formal part, is as follows: “The said ¥m. A. Kirkpatrick, on the first day of January, in the year of our Lord one thousand eight hundred and eighty-two, in the county aforesaid, and on divers other days and times between said day and the finding of this indictment, the said defendant and one Mary J. Collins, a female, he, the said defendant, not being married to said Mary J. Collins, did then and there unlawfully, lewdly and viciously cohabit…

This action was brought to obtain a judgment against the defendant, Reesman, upon a promissory note, and to foreclose a mortgage given by him to secure the same. lie admits the execution of the note and mortgage, but avers that they were given for a farm purchased by him of one John Keyes, in 1871, at $40 per acre; that the farm was supposed to contain four hundred and thirty-five acres, but in fact contains only four hundred and eleven acres; that the note and mortgage were…

Affeal from Pottawattamie District Gov/rt. Action to recover for personal injuries to plaintiff’s intestate, resulting in Ms death. Upon a trial to a jury, a verdict for defendant was rendered in pursuance of instructions directing the jury so to find. Plaintiff appeals.

The plaintiff brings this action in equity as assignee of an account for taxes alleged to have been paid by the plaintiff’s assignor, the Iowa Homestead Company. The land upon which the taxes were paid belongs to the defendant.

Action át law to recover for the violation of a written contract. The defendants moved the circuit court to change the venue of the action, on the ground that it was not commenced in the county of defendants’ residence, and the con-, tract, by its terms, is not to be performed in Montgomery -county. The motion was overruled, and, upon trial to the court without a jury, judgment was rendered for plaintiff. Defendants appeal.

This suit is brought on a promissory note, executed by a partnership of which defendant was a member. The note was executed January 22,1871, and it fell due one year after date. The suit was instituted August 7, 1882. The only defense pleaded by defendant is that the action is barred by the statute of limitations. The circuit court rendered judgment for plaintiff. Defendant appeals.

The petition states tliat tbe plaintiff is tbe owner of certain lots in tbe said city, wbicb abut on Fourth and Bluff streets, and tbat said lots are occupied by petitioner as bis homestead; tbat in 1869 the defendant passed an ordinance establishing tbe grade of Bluff street, and tbat tbe plaintiff made improvements on said lots according to tbe grade then established; tbat in 1881 the defendant passed an ordinance changing said grade in such manner as to cause great and…

Action of keplevin. A motion by defendant to change the venue to the county of his residence was overruled, and thereupon, defendant failing to plead to the petition, default was entered and judgment rendered thereon. The defendant appeals.

Plaintiffs are resident freehold tax-payers in Crestón township, Union eonnty. They bring this action in equity to enjoin the collection of a five per cent tax on the property in said township, voted in aid of the Des Moines, Crestón & Kansas City Railway. The action was brought originally in the circuit court of Union county, but was afterward changed to the district court of Wapello county.

Action to establish a mechanic’s lien. The court refused to do so, and dismissed the petition, and the plaintiff appeals.

Action to recover certain money paid by the plaintiff to the defendant because of the levy of a certain ditch-tax, which was paid under protest, and to prevent a sale of the plaintiff’s property. There was a judgment for the plaintiff, and the defendant appeals.

The plaintiff is assignee of one John T. Porter, under an assignment made by Porter as an insolvent for the benefit of his creditors. The assignment originally was made to one Webster. He afterwards died, and the plaintiff was appointed assignee in his place. This action is brought upon a bond executed by the defendants to Webster. The defendants filed an answer, to which the plaintiff demurred.

Action at law to recover damages resulting from a violation of a contract entered into by defendants to sell and convey certain lands to plaintiff. The cause was tried by a jury, and a judgment was rendered upon a verdict for plaintiff Defendant, Hammond, appeals.

This is an action for the recovery of commissions on tbe sale of certain lands belonging to defendant' There was a verdict and judgment for plaintiffs, and defendant appeals.

Plaintiff sues for the value of a car load of potatoes delivered by bim to defendant for shipment, and which were destroyed by being frozen through defendant’s negligence, as he alleges, in failing to forward them promptly to their destination. The case was tried to a referee, who found that defendant was liable.

Action in chancery to charge certain real estate with the lien of a judgment. Upon a trial on the merits,- plaintiffs petition was dismissed. He now appeals to this court.

These are actions in equity in the nature of creditor’s bills, by which it is sought to set aside a certain conveyance of real estate from the defendant, J. Y. Strait, to the defendant, Charlotte W. Strait, upon the ground that said conveyance was fraudulent as to the plaintiffs, who were creditors of the grantor. There was a trial before a referee, who reported in favor of the defendants. The report'was approved by the court, and a decree was entered for the defendants.

Henrietta O’Brien, widow of the deceased, and Emma J. Wilson, Maiy J. Wilson and Alfred L. O’Brien, heirs at law of the deceased, made application to -.the circuit court to be appointed administrators of the deceased. The application was refused, and Mary O’Brien, the mother, was appointed. The applicants above named appeal.

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

<p>1. Practice in Supreme Court: identification of evidence: abstract NOT DENIED BY ADDITIONAL ABSTRACT TAKEN AS TRUE. Where appellant’s abstract made mention only of documentary evidence, which was set out therein, but it was not alleged that that was all of the evidence, and the appellees filed an amended abstract setting out certain omitted evidence, but alleging that both abstracts failed to present all the evidence, and alleging, further, that the evidence was not preserved by any bill of exceptions, nor certified by the trial judge, held that this amended abstract, not being denied by any abstract filed by appellant, must be taken as true, and the evidence stricken out on motion of appellees, and the judgment below affirmed.</p>

Action to enjoin an execution sale of certain real estate in the city of ICeokuk. The action was brought upon the alleged ground that the real estate was not subject to sale upon the execution. There was a decree for the plaintiff. The defendant, White, appeals.

Action to recover $90. paid by plaintiff to redeem certain land from a tax sale, for taxes assessed against his grantor of the lands. It is alleged that the taxes were erroneously assessed, in that the personal propertyupon which the assessment was made belonged to a copartnership of which plaintiff’s grantor was a member, and was kept in another county, where it was duly assessed to the firm owning it. A demurrer to the petition was sustained. Plaintiff appeals.

Action in replevin. The cause was tried to tbe court without a jury, and judgment was rendered for defendant. Plaintiff appeals. The facts of tbe case appear in tbe opinion.

The petition states tliat tlie defendant passed an ordinance providing that all charges for the improvement of streets and alleys should be assessed against the respective owners and lots fronting on the street or alley improved, and should be collected as provided in sections 478 and 479 of the Codé, and thereafter passed a resolution providing for a change of the former grade, of about four feet, by filling certain described streets preparatory to paving; that the…

It is stated in tbe petition that one Smonse laid off an addition to the defendant, and dedicated the streets therein to the public, and that the defendant accepted such dedication, but permitted one of said streets to become obstructed, whereby a horse belonging to the plaintiff, which was lawfully passing along said street, was injured.

The defendant was accused by indictment of the crime of murder of the first degree. On the trial of the indictment he was convicted of manslaughter, and sentenced to a term of imprisonment in the penitentiary; and from this judgment he appeals. ■

This action was brought under the provisions of chapter 6, title 20, of the Code, to test the right of defendant to hold and exercise the office of sheriff of Shelby county. It is alleged in the petition that Eedfield, the relator, was, on the twenty-sixth of December, 1882, duly, and legally appointed sheriff of said county, to fill the vacancy in said office occasioned by the death of II.

Action in chancery, wherein plaintiffs claim that certain real estate, the title of which is in one of the defendants, is in law held in trust for them, and ask a decree so declaring, as well as requiring a conveyance of the property to them, and an accounting for the rents. Tks relief sought by plaintiffs was allowed by - the decree of the district court, from which defendants appeal.

It is alleged in the petition that George Kibby, plaintiff’s intestate, and defendant, ~W. P. Kimball, entered into a contract, whereby said Kibby agreed to furnish the sum of $1,-200 with which to purchase a stock of merchandise, to be put into a mercantile business to be established and carried on by him at the town of Irwin, said business to be under the control and management of said defendant; that, after the enterprise was started and had been carried on for some time,…

This is an action at law, in which the plaintiff claims of the defendant some $1,300 for services and expenses in keeping and maintaining a minor child of .the defendant for some eight years. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.

The plaintiff and the defendant own adjoining farms. In 1877, tbe plaintiff commenced an action for damages against the defendant for changing the natural flow of the water from defendant’s premises upon and over the plaintiff’s land, and for an injunction to restrain the defendant from thereafter diverting a water-course from its natural channel, so as to overflow and run upon plaintiff’s farm.

This is an action in equity, brought by tbe plaintiff to quiet bis title to 120 acres of land in Wright county. The plaintiff’s .claim of title is based upon certain tax sales and treasurer’s deeds. The defendant was the owner of the land under the patent title, and claims that the plaintiff’s tax deeds are void. The cause was referred to a referee to try and determine.

In 1875, one Adam-Hine owned certain land dessnbed in the petition. On the twenty-eighth day of April, 1875, a right of way for railroad purposes, one hundred feet wide, was condemned through said land by the defendant, the Keokuk & Des Moines Pailway Company, and the said company paid therefor $725. During the same year, the Keokuk & Des Moines Pailway Company constructed its road over said land.

AotioN to redeem from a sale for delinquent taxes after the execution of a treasurer’s deed, upon several grounds, one of which, was that the notice required by statute had not been served on the person in whose name the land was taxed. There was a decree for the plaintiff, and defendants appeal.

The plaintiffs allege that certain lots in the petition described were ordered sold by the board of supervisors of Lee county, and, after being duly appraised by the township trustees, were, ou the 25th day of June, 1877, at the court house door in Keokuk, by the county auditor offered for sale, and purchased by the plaintiffs for $1,300, and that the defendant, as governor of the state, refuses to issue a patent therefor.

The defendant was indicted for tbe crime of murder by means of poison. Having been convicted, lie was sentenced to confinement in tbe penitentiary for life. From tliis judgment be appeals.

This is an action to recover damages for tbe burning of plaintiff’s grain by a fire set out by a locomotive upon defendant’s road. There was a jury trial, resulting in a verdict and judgment for the plaintiff. The defendant appeals.

Action to recover damages resulting from injuries to a dwelling house and the lot upon which it is situated, caused by surface water made to flow thereon by an embankment erected by a railroad company, under authority of an ordinance of the city. Upon the evidence for plaintiff submitted to the jury, the court directed a verdict for defendant, and judgment was rendered thereon. Plaintiff appeals.

This is an action in equity, by which the plaintiff sought to foreclose a trust deed upon certain real estate, made by the Iowa City Glass Company to the plaintiff, as trustee, to secure the payment of the principal and interest of fifteen thousand dollars of bonds issued by said glass company.

<p> Appeal from Johnson District Court. </p> <p>Action at law, judgment for tbe defendants, and plaintiff appeals.</p>

This is an action in equity to enjoin the collection of a sewer assessment, certified by tbe city of Des Moines to the auditor of Polk county, and by him placed on the tax lists for collection by the county treasurer. There was a trial in the court below, and a decree was entered for the defendant. The plaintiff appeals.

This is an action in equity by which it is sought to foreclose a mechanic’s lien upon the railroad of the defendants, for money claimed to be due upon a contract for grading part of said road. There was a decree for the plaintiffs, and defendants appeal.

Action for damages for the alleged breach of a written contract to sell and deliver to the plaintiffs two hundred barrels of cranberries. The defendant denied making the alleged contract. .There was a trial to a jury. The court instructed the jury to render a verdict for the defendant. A verdict was rendered accordingly, and judgment' was rendered thereon. The plaintiffs appeal.

<p>1. Bailroads: contract for shipment: commerce between the states: what-is not. "Where a railroad company within the state accepts goods destined for a point in another state, but contracts with the shipper that its responsibility shall cease when it carries the goods to another point within this state, and there delivers them to another carrier, the contract does not relate to commerce between the states, but is one to be wholly performed within this state, and which may be controlled by the legislature of this state, without any violation of the constitution of the United States.</p> <p>2. -: EXCESSIVE CHARGES BY: COMMON-LAW RIGHT TO RECOVER back: no protest necessary: statute of limitations. Where a common carrier demands and receives an excessive charge for carrying merchandise, the person paying the same has a right at common law, independent of any statute, and not affected by chapter 68, Acts of Fifteenth General Assembly, to recover back the excess so paid; and, to do so, it is not necessary that the payment be made under protest. (See authorities collated by Beck, J.) Such action, being not to recover the penalty provided by statute, but to recover upon an implied contract, is not barred until the expiration of five years from the time of payment. Compare Herriman v. The B., C. B. (& N. B’y Co., 57 Iowa, 187.</p> <p>3. -; UNLAWFUL CHARGES BY ARE CONCLUSIVELY UNREASONABLE. Where the statute fixes the maximum charges which may be made by a railroad company for carrying freight, it determines conclusively that charges in excess of those so fixed are unreasonable; and, in an action to recover back charges in excess of those fixed by statute, all evidence offered to prove that the excessive charges were reasonable is immaterial.</p>

The plaintiff, as the assignee of one Kellog, seeks to recover of the defendant for a failure to comply with Inis written contract, by wbicb be agreed to furnish to Kellog carpenter work to tbe amount of $500. Tbe defendant by answer took issue with the averments of tbe petition, and there was a trial by jury, and verdict and judgment for-tbe plaintiff. Defendant appeals.

Action in chancery to subject, by a creditor’s bill, certain lands conveyed by Patrick Henry to his wife and co-defendant, .Mary Henry, to a judgment recovered by plaintiff against the first named defendant. After a trial upon the merits, plaintiff’s petition was dismissed. He-now appeals to this court.

This is an action for a personal injury, caused by a collision of one of defendant’s trains with a wagon in which plaintiff was riding, at or near a public crossing of defendant’s railroad track. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for §10,000. The defendant appeals.

This is an action in equity to cancel and set aside a tax deed to a quarter section of land, and to set aside a judgment of tbe district court of Buena Yista county, which quiets the title to said land in the defendant, the Storm Lake Bank.