Volume 65 — Iowa Reports

A. H. Stutsman, Judge of the District Oourt of the first Judicial District, in habeas corpus proceedings. On the fourth day of August, 1SS4, plaintiff ¡presented his petition to Judge Stutsman, in which he alleged that he was illegally restrained of his liberty by the defendant.

Action on account for a balance which plaintiff alleges is due him for lumber and building materials sold and delivered to the defendant.

<p> Appeal from Johnson Cwauit Court. </p> <p>The petition states that the plaintiff is the owner of the following described real estate: “ Twenty acres off the north side of twenty-five acres off the south side of lot No. seven, (7,) of section No. thirty-three, (33,) township No. eighty, (80,) north, of range No. six west,” and that the defendant entered thereon, and “trod down the grass and dug holes in the ground,” to the damage of the plaintiff.</p> <p>The defendant denied the allegations in the petition, and pleaded that he owned the premises on which the alleged trespass was committed, and that he had been in the actual possession thereof, under color of right and claim of title, for more than twenty years prior to the alleged trespass. The defendant further pleaded that in 1860 one Crum owned the premises described in the petition, and that he and Crum agreed that a certain stone was one of the true corners of said premises, and that Crum relinquished ail claim to the land lying east of a line extending south from said stone, and that ever since said time the defendant has been in possession of the land east of said line under a claim of right and title. Trial by jury, verdict and judgment for the plaintiff. The defendant appeals.</p>

Action at law, wlierein certain personal property was seized upon an attachment issued against defendant, Wolff. The Shenandoah National Bank intervenes in the action, claiming ownership of the property. A trial of the issues between plaintiffs and the intervenor resulted in a verdict and judgment for plaintiffs. The intervenor appeals.

This action was commenced before a justice of the peace upon a promissory note. The defendant, Brooks, was not served with notice of the action. Defendant, Iloyt,, appeared and answered, and judgment was rendered against him. He appealed to the circuit court. The cause was submitted in that court upon an agreed statement of facts, and judgment was rendered for the plaintiff. Defendant, Hoyt, appeals.

A^jpcdl from Johnson District Court. Action in equity for an accounting, and for the cancellation of certain judgments. The court dismissed the plaintiffs’ petition, and they appeal.

The defendants in the above entitled cases were each convicted of beeping a nuisance, in the use made by them of a building in beeping and selling intoxicating liquors, and wbre fined therefor. The defendants appeal.

Appeal f rom, Des Moines District Court. The action was brought to charge the defendant with the support of a bastai’d child. There was a verdict of guilty, and judgment was rendered against him accordingly. He appeals.

Action to foreclose a mechanic’s lien. After the plaintiff had introduced his evidence, the circuit court, without hearing evidence on the part of defendants, upon their motion, dismissed plaintiff’s petition. lie now appeals.

■Appeal from Pottawattamie Circuit Court. The plaintiff filed a claim against the estate of which defendant is administrator, for the support of the intestate, in his lifetime, for fourteen years, at $100 a year. The cause was tried to a jury, and a verdict was had for plaintiff, upon which judgment was rendered. Defendant appeals.

<p> Aypeal "from Marshall District Oourt. </p> <p>The defendant was convicted in the court below of the crime of incest, alleged to have been committed by having carnal knowledge of his daughter, Lorada Miller. Defendant appeals.</p>

Plaintiff brought this suit to recover a sum of money which it claims to have deposited with defendants, to be paid out only on tickets issued by one Yalentine, an agent of plaintiff, in the purchase of flaxseed, but which defendants, without authority, paid to said Yalentine in payment of certain commissions.

Action in chancery to enjoin defendants from conveying certain lands described in the petition. A temporary injunction was allowed, and after answer a motion to dissolve it, made at chambers, was overruled. From the order overruling this motion defendants appeal.

This is a controversy without action, submitted upon an agreed statement, under chapter 10 of title 20 of the Code. The question presented arises under the will of George Briggs, deceased. The parties differ as to whether a certain legacy has lapsed or not.

The defendant was convicted of the crime of nuisance, and sentenced to pay a fine and the costs of the prosecution, and from this judgment he appeals.

The plaintiff is a locomotive engineer, and was in tbe employ of tlie defendant, and tbe petition states that while tbe plaintiff, as such engineer, was in charge of a locomotive drawing a train of cars over defendant’s road, tbe “ locomotive and train were thrown from the track,” and the plaintiff’s right arm broken; that tbe “ accident was caused by negligence and the faulty construction of tbe track; * * * that the ties were rotten, and insufficient to bold tbe sleepers…

Action in equity to enjoin the sale on execution of a certain -forty acre tract of land, on the the ground that the property is exempt as the homestead of plaintiffs. The judgment of the circuit court was for plaintiffs, and defendant appeals.

The plaintiffs commenced an action by attachment against the defendant, G. M. Needles, and attached a horse, buggy, and harness. E. G. Eisher intervened in the action, claiming that he was the absolute owner of the property, by purchase from the defendant, Needles.

This is an action upon a guardian’s bond. There was a demurrer to the petition, which was sustained, and plaintiff ajipeals. The facts appear in the opinion.

The township assessor of Oass township, in Clayton county, assessed plaintiff for taxation for the year 1883 on $10,000 of moneys and credits. Plaintiff thereupon filed his petition with the township board of equalization, asking that said assessment be stricken from the assessment list, on the ground that ,he was not a resident of Olayton county, and that he was not liable to taxation on said property in that county.

This is an appeal from an order of the circuit court sustaming a motion to set aside a sale on execution of certain real estate. The facts of the case are stated in the opinion.

This is an action to establish plaintiff’s right to redeem certain real estate from a tax sale, and to set aside a tax deed thereof to defendant, Phelps, and to cancel the deeds conveying the same to the defendants, Reinig and Yitzer. The district court dismissed plaintiff’s petition, and he appeals.

Appeal from Audubon District Court. Action to quiet title to certain land in Audubon county. There was a decree for the plaintiff. The defendant appeals.

Action for tbe recovery of specific personal property. Tbe judgment of tbe district court awards tbe property to defendants. Plaintiff appeals.

Action on an account for goods sold, and on a promissory note. The plaintiff caused an attachment to issue. The defendant pleaded that the attachment had been wrongfully and maliciously sued out, whereby he had been greatly damaged. Trial by jury, judgment for plaintiff, and defendant appeals.

<p> Appeal from Wapello Gi/rouit Gowt. </p> <p>This is an action at law by which the plaintiffs seek to recover of the defendant the value of certain baggage alleged to have been lost by the defendant in June, 1881. There was a trial by jury, and a verdict and judgment for the plaintiff for $85. Defendant appeals.</p>

' These actions involve the right of the plaintiff to dower in certain lands in Keokuk county. The district court held that the plaintiff “had no interest in the lands, and she appeals.

Action to recover oue-balf of the cost of what the plaintiff claims to be a party wall. The defendant pleaded a counterclaim. Trial by jury, judgment for the plaintiff, and defendant appeals.

The plaintiff was charged with being the father of a bastard child born to one Minnie Mansfield. There was a verdict against the defendant, and judgment was rendered thereon. He appeals.

Action to quiet title to a quarter section of land. Plaintiff claims title to tbe land under certain tax deeds. Tbe defendant, tbe Toledo & Northwestern Railway Company, alleges that it is in possession of a strip one hundred feet in width across one forty-acre tract of tbe land, and that it occupies tbe same as a right of way for its railroad, the same having been condemned for that purpose by ad quod damnum proceedings.

Action to recover for injuries alleged to have been sus tained by being thrown from the platform of the defendant’s car by reason of tbe sudden and careless starting of tbe train, while tbe plaintiff, as a passenger, was in the act of leaving it at a station. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

Tins is an action in equity in the nature of a creditors’ bill, by which it is sought to subject certain real estate to the payment of the debts of the insolvent partnership of Teabout & Yalleau. The said real estate consists of a number of tracts of land, the legal titles to which are held in severalty by the defendants in the case. There was a trial to the court, and a decree was entered for the defendants. Plaintiffs appeal.

Action in chancery to set aside, cancel, and declare satisfied a judgment rendered against plaintiff in a certain proceeding to foreclose a mortgage. A decree was rendered dismissing plaintiffs’ petition, from which they appeal to this court.

<p>1. Duress: definition: evidence. Duress is an actual or threatened violence or restraint of a man’s person, contrary to law, to compel him to enter into a contract, or to discharge one; and the evidence in this case (see opinion) does not sustain the allegations of duress.</p>

<p>1. Mew Trial: excessive damages: discretion of court: practice on appeal. When the trial judge has determined that the fair administration of the law demands that a'new trial should be granted for any cause known to the law, this court will interfere only when it is clearly shown that he has abused the discretion which the law vests in him.</p> <p>2. Appeal to Supreme Court: record. A notice of a claim for an attorneys’ lien is no part of the record as between plaintiff and defendant, and should not be embodied in the abstract on appeal.</p>

Action at law upon a written order for a harvester and binding cord. The cause was tried to the court without a jury, and defendants appeal.

The plaintiffs are creditors of the defendant, Alphonso Moore. As such they brought this action against him, and in their petition they prayed for a writ of attachment. Some proceeding appears to have been had, under which they claimed to have garnished R. A. Moore.

Action in chancery to subject certain lands of the wife to a judgment against her husband. There was a decree in the district court subjecting a part of the lands to the judgment. The wife appeals.

Action in chancery to set aside a deed on account of misrepresentations and fraud, inducing its execution, and to recover for rents of the land conveyed, and for discovery of the assets of an estate of which plaintiff is sole heir. The defendants, Sarah and Frank Stokes, and A. J. and W. J. Williams, claim interests in the lands as heirs, and pray that their title be quieted.

Action upon a promissory note. The defendant pleaded usury. In addition lie pleaded a counter-claim for damages alleged to have been sustained by tbe publication of a libel. Tbe jury found tbe note to be usurious in part. They also found that tbe defendant was entitled to damages upon bis counter-claim, and rendered a verdict for tbe defendant for $207.34. Judgment having been rendered upon tbe verdict, tbe plaintiff appeals.

<p> Appeal from Pottawattamie Gweuit Gov/rt. </p> <p>This is an ■ appeal from an order vacating a temporary-injunction.</p>

Action in equity to subject real estate to payment of certain judgments recovered by tbe plaintiff against the defendant, G. W. Henry, which real estate, the plaintiff claims, Henry conveyed to his daughter and co-defendant, M. E. Henry, for the purpose of defrauding his creditors. The. court found for the defendant, and entered a decree accordingly. The plaintiff appeals.

Appeal from Hardin District Court. Defendant was indicted and convicted of obtaining money upon false pretenses. He now appeals to this court.

<p>1. Procedure: taking issue prom jury. Where an issue is made by the answer, and there is some, though slight, evidence to sustain it, it should be submitted to the jury.</p> <p>■2. Practice: bill op exceptions: instructions. Instructions are a part of the record, and need not be made such by bill of exceptions.</p> <p>3. -: exceptions to instructions: when taken. Instructions need not be excepted to when given. It may be done within three days after verdict, in a motion for a new trial. Code, § 2789.</p>

<p> Appeals from Webster District Oov/rt. </p>

<p> Appeal from, Marion ’Circuit Court. </p> <p>This is an action at law, founded upon a written subscription of $500, made by T. C. Livingston, deceased, to the plaintiff, the University of Des Moines. There was a trial by jury, which resulted in a verdict and judgment for the defendant. Plaintiff appeals.</p>

Plaintiff alleges in his petition that in the month of September, 1882, he entered into a contract with defendant to teach its school for a term of 34 weeks, for which service defendant agreed to pay him at the rate of $45 per month; that he entered upon the performance of his duties under said contract on the fourth of September, and continued therein until the eighteenth of that month, when the defendant’s board of directors wrongfully and illegally discharged him, and…

This is an ad quod damnum proceeding, instituted by defendant, for tbe condemnation of a right of way for its rail.road across certain premises belonging to plaintiff. There was an appeal by plaintiff from the award of damages made by the commissioners appointed by the sheriff. The jury in the circuit court assessed plaintiff’s damages at $2,200, and the court entered judgment on this assessment. Defendant appeals.

Appeal from, Woodbury Circuit Court. Action in chancery. Upon a trial on the merits, plaintiff’s petition was dismissed. lie now appeals to this court.

John S. Koontz was in the employ of the defendant as a brakeman on a freight train, and fell from a bridge and was killed. The plaintiff is administrator of his estate, and seeks to recover damages caused by the death of the deceased. On motion, the court directed the jury to find for the defendant, which they did, and the plaintiff appeals.

Appeals from, Audubon District Court. These cases are submitted together as involving the same question of law. The question presented is as to the validity of certain tax deeds. The plaintiff, Sarah J. Hillyer, holds under the tax deeds, and the first action is brought by her to quiet title against Isaac Farneman and Cornelius Con-over, as claiming to hold under the patent title. H. E. Long intervened as a purchaser from Conover.

Upon motion certain costs, made by the sheriff by the service of notices in garnishment proceedings, were taxed against plaintiff, and judgment therefor rendered accordingly. Plaintiff' appeals.

This is an appeal by plaintiffs from the order of the circuit court, setting aside a verdict in their favor, and granting a new trial.

This action was brought to recover $400 upon what the parties denominate a deposit check. No copy of the instrument is set out, but we infer that it showed a deposit of $400 in the defendant bank, and a liability upon its part to repay the same. The defense is based upon the alleged fact that the money deposited did not belong to the plaintiff, but to the defendant, and that the deposit check was given by mistake.

This is an action to recover damages of the defendant for the death of one Larson, who it was alleged was killed by the falling of a bank of earth at which he was engaged in shoveling dirt.

This is a petition to sever certain territory from the city of Council Bluffs, upon the ground that the land composing said territory is wholly agricultural and farming lands, and so used and occupied, and that the same has never been used for any municipal purpose whatever, and has received no benefits or advantages by being within the corporate limits, and is not likely ever to be used for municipal purposes.,.

Appeals from Story District Court. These cases are submitted together as involving the same question of law. In the first case the defendant was convicted of stealing a horse from one Olson, and in the second case of stealing a horse from one Wicks. Judgment having been rendered upon the verdict in each case, the defendant appeals.

Tliis is an appeal from an order overruling an application to set aside and vacate an allowance to a receiver previously-made in the court below.

It is alleged in the petition that in the month of May, 1882, two causes were pending in the circuit court of Jones county, in one of which defendant, Tobiason, was plaintiff, and this plaintiff and others were defendants; and in the other one H. E. Wilkins was plaintiff, and this plaintiff and others were defendants; and that plaintiff and defendant entered into a contract for the compromise and settlement of said causes, whereby defendant agreed, in consideration that…

Action in chancery to quiet the title and recover possession of land. Upon a trial on the merits, a decree was entered dismissing plaintiff’s petition, from which he appeals.

The petition states that in November, 1880, the defendant sold the plaintiff 3,000 bushels of shelled corn, for which the plaintiff agreed to pay 26-} cents per bushel, and that the corn was to be delivered in January, 1881. The petition further states that the plaintiff paid the defendant, at different times subsequent to the time the contract was entered into, the sum of $451.

Action eor divorce. The judgment of the circuit court was for plaintiff, granting her a divorce and the custody of her minor child; also granting her an allowance as alimony. Plaintiff'appeals from the portion of the judgment awarding her alimony.

<p>1. Justice’s Court: practice: demand por jury: when to be made. In an action in justice’s court, if either party desires a jury, demand must be made therefor “ at or before the time.for joining issue.” Code, § 3537. And, although defendant appeared and filed an answer within 15 minutes after the hour at which the notice was returnable, yet plaintiff .was not required to give any attention to the case until one hour after the return hour; (Code, §3525;) and “the time for joining issue” did notexpire until he had areasonable time, after appearing within the hour, to examine the answer, and determine what co.urse he would pursue in relation thereto; and a demand for a jury within such reasonable time, to try the issue raised by the answer, was not too late, though made more than an hour after the return hour. Where the hour for appearance has been extended by agreement, the time for joining issue will be correspondingly extended.</p>

Action upon an account for goods and merchandise. There was a judgment upon a verdict against defendant, from which he appeals.

This is an action at law. It was originally commenced by A. J. Norman and Lucinda M. Norinan, as plaintiffs. A motion was made by defendant attacking the petition. The motion was sustained.

<p>1. Fraudulent Conveyance: brother to brother: evidence establishins. A conveyance by one of the defendants to his brother of his interest in his mother’s estate, under the circumstances disclosed by the evidence, (see opinion,) held void, as being in fraud of creditors.</p>

This is an appeal from an order in a garnishment proceeding discharging the garnishee. Plaintiff obtained judgment against one Joseph Lustick, on which execution issued, and appellee was garnished as a supposed debtor of the defendant in execution. At the proper time he appeared, and answered that he was not indebted to said Lustick in any sum, and that he did not have any property in his possession belonging to him.

Action upon the official bond given by a constable. There was a judgment upon a verdict for defendants. Plaintiff appeals.

<p> Appeal from Clay District Gourt. </p> <p>Action in. equity to establish a judgment lien upon certain land in Clay county. The plaintiff' showed in his petition that he holds two judgments, rendered in the circuit court of Clay county, against the defendant, Edward Jones; that Jones, after the rendition of the judgments, was the owner of an interest in the land in question, such interest having been derived from the state of Iowa by reason of a-contract with the trustees of the agricultural college, whereby they leased to him the land for the term of ten years, commencing November 13, 1874, with the right, if he so elected* to purchase the same at a designated price. The plaintiff also showed in his petition that Jones sold and assigned the lease to the defendant, JaDe Hughes, and that she sold and assigned the same to the defendant, W. J. Davis, and that Davis elected to purchase, and did purchase, under the option given, and has acquired a patent to the land from the state. The plaintiff also showed in his petition that Jones is insolvent. To the petition the defendants, Jane Hughes and W. J. Davis, demurred, and the demurrer was sustained. The plaintiff elected to stand upon his petition, and judgment was rendered against him for costs. He appeals.</p>

<p> Appeal from Butler Circuit Court. </p> <p>The defendant, by motion in the circuit court, sought the discharge and cancellation of a decree and judgment rendered in this case, which is an action for foreclosure of a mortgage. The motion was overruled. Defendant appeals.</p>

<p> Appeal from WinneshieJe Circuit Court. </p> <p>Action for tbe recovery of specific personal property. Plaintiff claims tbe property under a chattel mortgage, executed by lier liusband, to secure an alleged indebtedness due from bim to her.</p> <p>The property was seized on execution, issued on a judgment against the mortgagor, and in favor of defendants, C. IT. and L. J. McCormick.</p> <p>The defendant, Langland, is sheriff of tbe county.</p> <p>It is alleged in tbe answer that tbe levy on tbe property was made by one Sanford, a deputy sheriff, and not by Langland, the sheriff. But the notice of ownership of tbe property given by defendant was not served on said deputy, but was served on tbe sheriff.</p> <p>It is also averred that tbe mortgage under wbicb plaintiff claims the property was without consideration, and was given for tbe purpose of defrauding the creditors of the mortgagor.</p> <p>The verdict and judgment were in favor of plaintiff. Defendants appeal.</p>

<p>1. Vendor’s Lien: judgment: priority. The lien of a judgment takes precedence of a prior vendor’s lien, where the judgment is taken without notice, actual or constructive, of the vendor’s lien.</p> <p>2. Equity: lien on two funds: marshaling assets. A creditor who has a lien on two funds cannot be required by another creditor, who has a lien on one of the funds only, to exhaust the other fund first, except where it can be done without injustice to him.</p>

The plaintiff is a lawyer, and commenced an action against the defendant for divorce. The defendant’s wife was plaintiff in the action, which was dismissed by the parties thereto. This action was brought to recover for services rendered in the divorce proceeding. Trial by jury, judgment for the plaintiff, and defendant appeals.

Action for damages sustained by a fire alleged to have been set out by the defendant. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

The defendant was tried upon a charge of robberv. Yer-diet and judgment were rendered against him, and he appeals to this court.

Action against the guarantor of a promissory note. There ivas a judgment upon a verdict for defendant. Plaintiff appeals.

Actions in chancery to set aside certain tax sales of real property and deeds made thereon; to quiet title, and for other relief. There was a decree granting the relief prayed for by plaintiff, upon payment of certain sums which the circuit court found the plaintiff ought to pay to entitle him to redeem the property. Both parties appeal. Thé cases involve the same facts and questions of law, and they are submitted together for one decision.

<p>1. Tax Sale and Deed: notice to redeem: presumption that land is taxed to owner. Where defendant’s title to the land in question was of record, and the land was assessed and taxed to him at the time it was sold for taxes, it will he presumed, in the absence of a contrary showing, that he retained the title and that it was taxed to him when the notice to redeem should have been given; and especially should such presumption be entertained against a holder of the certificate of purchase who, by his acts in the premises, recognized the continued ownership of the defendant. In such case a tax deed cannot be sustained without the statutory proof that notice to redeem was served on defendant. Fuller v. Armstrong, 53 Iowa, 683, distinguished.</p>

The defendant was indicted and convicted for. the crime of manslaughter, and was sentenced to imprisonment in the penitentiary for three months, and to pay a fine of $500. She appeals.

Action roe standee. The crime charged was larceny. The defendant justified. Trial by jury, judgment for plaintiff, and defendant appeals.

Appeal from Davis Circuit Court. Action on a policy of insurance against loss or damage by iire. Yerdict and judgment .for plaintiff. Defendant appeals.

Action for an injunction to prevent the removal of a stock of goods from a certain store occupied by the defendants in the city of Cedar Rapids. The action is brought upon the theory that the plaintiff has a landlord’s lien upon the stock, and that the defendants threaten to remove the stock and deprive him of his lien, which he needs for security for the payment of rent.

Action in replevin. The property in question consisted of a stock of agricultural implements kept for trade by the firm of Teabout & Yalleau, who were doing business as merchants in the town of Sanborn, O’Brien county. On the twenty-ninth day of April, 1881, the defendant, Thompson, as a creditor of Teabout & Yalleau, caused a writ of attachment to be levied upon the stock.

This is an action in equity to reform a contract of settlement of the affairs of partnership, and to recover an amount of money which plaintiff alleges is dne him under said contract. The circuit court refused to reform the contract, but rendered judgment for plaintiff for a portion of tlie amount claimed. Both parties appeal.

These causes were submitted on a single abstract. The petitions stated that the several plaintiffs recovered judgment against the Burlington Manufacturing Company, and that executions were issued, and a demand made on the last acting president of the corporation to point out corporation property ujion which the same could be levied, and that he failed to do so; tbat the defendants are owners of certain shares of tbe capital stock of the corporation, for which they had paid…

The defendant, upon an information filed before a justice of the peace, was convicted of unlawfully releasing distrained stock. He was again convicted upon an appeal to the district court, and now appeals to this court.

Upon the final hearing, the circuit court dismissed plaintiff’s petition, and affirmed the action of the commissioners. Plaintiff appeals.

This is an action oe mandamus. The defendants consti-. tute the board of directors and officers of the district township of Madison.

Appeal from Hiomboldt District Cowt. Action in equity to quiet the title to real estate. Decree for the plaintiff, and defendants appeal.

Action on four promissory notes, and. to foreclose a mortgage given to secure tbe same. Tbe notes were made payable to J. I. Case & Co., and were assigned to plaintiff.

Action on a promissory note executed by defendants, John W. Bloom and W. T. Brice, and to foreclose a chattel mortgage given by said Bloom to secure the same. It is alleged in the petition that defendant,'Jacob Bloom, claims a lien on the mortgaged property, but that whatever interest he has therein is junior and inferior to plaintiff’s mortgage thereon.

Appeal from Bremer District Gourt. The defendant was tried and convicted for the larceny of a certain sorrel mare, and he appeals.

<p>1. Practice on Appeal: trial de novo: insufficient abstract. A ■ trial de novo cannot be had in this court upon an abstract which does not purport to be an abstract of all the evidence.</p> <p>2. Error without Prejudice: no ground for reversal. Where it is clear that an appellant could not possibly have recovered, the overruling of interlocutory motions made by him, though technically erroneous, will not justify a reversal.</p> <p>•3. Malicious Prosecution: counter-clatm for damages. No action can be maintained for a malicious prosecution until the action complained of is ended. Hence the damages for such prosecution cannot beset up as a counter-claim to the alleged malicious action.</p>

This is an action to compel the defendant, who is county treasurer, to repay to plaintiff certain taxes, which it is alleged he was authorized to repay by an order of the board of supervisors. A demurrer to the petition was sustained, and plaintiff appeals.

This is a proceeding by garnishment. The cause was tried without a jury, and the garnishee was discharged. Plaintiffs appeal.

This is an action to foreclose a mortgage upon certain real estate. The defense is that the promissory notes secured by the mortgage, of which notes the plaintiff claims to be owner, have been fully paid. The circuit court found that the defense of payment was established by the evidence, and rendered a judgment for the defendants for costs. Plaintiff appeals.

This is an action in equity to establish a vendor’s lien on real estate.

G. Beiniger, Circuit Judge. Tuts proceeding, entitled as above, was instituted by Hart, for the purpose of obtaining a writ of habeas corpus, and his discharge thereon from the defendant’s custody. The writ was issued, and an answer and return were made thereto. Upon a hearing having been had, the prayer for release was denied, and the plaintiff was remauded into custody. He appeals.

Tuts is an action at law, by wbicb tbe plaintiff seeks to recover of tbe defendants upon an alleged agreement, made by tbe defendants, to pay off and discharge a promissory notó and mortgage upon certain land. The defendants purchased tbe land of the mortgagors, and^ it is claimed that they assumed tbe payment of tbe mortgage. The defendants claim that they have made full settlement and payment of their obligation.

Plaintiffs brought this action to recover the price of a car-load of barley.

<p>1. Sale: induced by fraud of vendee: delivery: resale by vendee: recovery of goods. Plaintiffs sold the goods in question to A., who obtained credit therefor by falsely representing that his name was S.. The goods were consigned by rail to the name of S., but A., by stating that he was the purchaser, induced the station agent to deliver them to him. A. then sold and delivered the goods to D. & P„ who had no knowledge of the fraud. Held that the delivery of the goods to A. by the carrier was in effect a delivery by the plaintiffs, and that plaintiffs, having thus voluntarily delivered the goods to A., thereby enabling him to sell to D. & P., could not recover the goods from D. & P., who purchased them in good faith.</p> <p>2. Evidence: exclusion of: error without prejudice. Error in excluding competent evidence is no ground of reversal, where, from the whole record, it is clear that the judgment could not have been different had the evidence been admitted.</p>

This is an action in equity by which plaintiff, who claims to be the owner of a small fractional piece of land, seeks to quiet her title as against the defendant. The defendant, by a cross-petition, claims that he is the owner of the land, and he prays that his title thereto may be quieted as against the plaintiff. There was a decree for the defendant, and plaintiff appeals.

Appeal from Winneshiek District Court. Action to foreclose a mortgage. Defense, usury. Trial to the court and judgment for the defendant. Plaintiff appeals.

Action to recover possession of a life insurance policy. The defendant bank disclaimed any interest in the policy, and the intervenor claimed that he was entitled thereto. Trial by jury. The court directed the jury to find for the plaintiff, which they did, and the intervenor appeals.

The plaintiff is a house-carpenter, and .the defendant is a carpenter, contractor and builder. In 1883 the plaintiff was in the employ of the defendant, working by the day, and' engaged with other employes of defendant in bnilding a one-story house for one Brown. While plaintiff was standing upon a scaffold engaged at work, the scaffold gave way, and plaintiff fell a distance of about five feet to the ground, and was injured.

Appeal from Buchanan Circuit Cou/rt. Action to set aside a probate sale of real estate. There was a decree for the plaintiff. The defendants appeal.

Action in equity to restrain the collection of a tax voted and levied in aid of the construction of the Leon, Mt. Ayr & Southwestern railroad. Trial to the court, and judgment restraining the collection of the tax. The defendants appeal.

This is an action for the recovery of damages caused-by a personal injury sustained by plaintiff while in the employ of defendant; the injury being caused by the negligence of a co-employe. The verdict and judgment were for defendant, and plaintiff appeals.

Action for tbe breach of a covenant of warranty in a deed. There was a trial to the court, aud judgment was rendered for the plaintiff. Tbe defendant appeals.

<p>1. Contract: rule op construction: situation and acts op parties: rule stated and applied. It is always competent, in construing a written contract, to consider the situation of the parties, the subject-matter of the contract, and the acts of the parties under the contrae^ as showing what the parties understood to be their obligations; and this is no infringement of the rule that the contract cannot be explained or varied by parol. And so, where plaintiff was employed by defendant to drive piles on a railroad between certain points, and plaintiff agreed “to push said driving so as to keep out of the way of the track-layers;” and “to drive on said line until all the piles are driven to ” the terminus of the road, and the question arose whether plaintiff had, by virtue of said language in the contract, the exclusive right to drive piles on said line, and it was shown that, when he began work, another, to his knowledge, and without objection on his part, began like work at another point on the line, and continued such work over a large portion of the line, and that plaintiff, without objection, accepted help from such other person, on the part where he (plaintiff) was engaged, held that the contract, construed in the light of these circumstances as indicating the intention of the parties, did not give plaintiff the exclusive right to drive the piles on said line.</p>

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

Action in chancery to enforce the right of redemption from k tax sale and deed. A demurrer to the petition was sustained, and, plaintiff refusing to amend or plead further, her petition was distressed. She now appeals to this court.

Action to recover possession of certain real estate, and for ' damages. There was a judgment for the defendant.. The plaintiff appeals.

Action to recover damages caused by the defendant’s negligently permitting certain wires, which had been stretched on poles in the city of Waverly, to sag down, while defendant was repairing the wires erected by it in the streets of the city, whereby the plaintiff, who was passing along said streets, was injured, without negligence on his part. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

This action was originally brought before a justice of the peace. Plaintiff is an attorney at law, and he brought the action to recover from the county the sum of $100, as compensation for his services in defending a person who was indicted and tried in the district court of the county for a felony.

Action on a policy of insurance against loss or damage by fire. Trial by jury, verdict and judgment for the plaintiff, and the defendant appeals.

The defendant was indicted, tried and convicted of obtaining certain property by means of false pretenses, and he appeals.

<p> Appeal from, Polla Circuit Court. </p> <p>Action on a fire insurance policy. There was a verdict and judgment for plaintiff. Defendant appeals.</p>

This is an action by which the plaintiff seeks to recover the sum of $1,000, and interest, upon an alleged oral contract set up in the pleadings. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. The facts appear in the opinion.

<p>1. New Trial: misconduct of juror: discussion of case: affidavits considered. A new trial was sought by defendant on the ground that one of the jurors had permitted the case to be discussed in his presence during an adjournment; but, upon consideration of the affidavits of the parties, (see opinion,) held that no facts were established thereby, as distinguished from legal conclusions, which showed prejudice to the defendant, and made it obligatory on the court to grant a new trial.</p>

<p> Afjgeal from Woodbury Circuit Oou/rt. </p> <p>Action on a policy of insurance against loss or damage by fire. The court directed the jury to find for the defendant, which they did, and plaintiff appeals.</p>

In an action before a justice of the peace a judgment was rendered against the defendant as garnishee. She sued out a writ of error from the circuit court, and upon the hearing thereof the judgment of the justice was affirmed, and the defendant appeals.

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

Action on an administrator’s bond. A demurrer was sustained to the petition, and judgment was rendered thereon for defendants. Plaintiff appeals.

<p>1. Practice in Supreme Court: reviewing instructions without the evidence. This court cannot say that instructions, which are cor-re.ct as abstract propositions, were improperly given in a certain case, unless the evidence is contained in the record.</p> <p>2. -: surprise: objection too rate on appear. Where the case was called for trial, and defendant made no objection to proceeding to trial, he cannot for the first time in this court complain that he was not-prepared for trial, because his counsel had no opportunity to consult with him and prepare his defense.</p>

Upon an information filed before a justice of the peace, defendant was convicted of an assault and battery. He appealed to the district court, and was again convicted, and now appeals to this court.

This is an action in equity, by which the plaintiff, a citizen of Polk county, seeks to enjoin and abate a nuisancé, which it is alleged the defendant keeps and maintains in a certain building in the city of Dgs^ÜTólnes, by selling intoxicating liquors therein contrary to the law.

Defendant, Piersol, is a justice of the peace. He entered a j udgment against plaintiff in favor of defendant, J. J. Clougb, and an execution was issued thereon and placed in the hands of defendant, G. M. Strong, who is constable. Plaintiff brought this action to enjoin the enforcement of said judgmant.

Action to recover for personal injuries sustained by plaintiff by reason of an excavation made by defendant in one of its streets, into which he drove his candage and team in the night-time. There was. a judgment upon a verdict for plaintiff. Defendant appeals.

<p>1. Evidence: opinions as to ability to perform duties of baggage-man and express messenger. The opinion of witnesses familiar with the duties of baggage-men and express messengers on a certain route on a railroad, and who had seen plaintiff try to perform those duties, were not admissible to prove his incompetency to perform those duties. No question of science or skill was involved, and it was for the jury, after hearing all the facts, to decide as to plaintiff’s competency; following cases cited in opinion.</p> <p>2. Railroads: injury to employe: settlement by agreement to HIRE EMPLOYE AS BAGGAGE-MAN AND EXPRESS MESSENGER: DUTY OF company. Plaintiff was injured on defendant’s road, and, in settlement of a suit growing thereout, defendant agreed to employ him as baggage-man and express messenger at certain monthly wages. Plaintiff now sues for a breach of that contract, and defendant answers that he was not competent to perform the duties of such employment. Held that defendant was bound to afford plaintiff a fair opportunity to acquire the necessary knowledge and skill in the manner in which they are ordinarily acquired by men in that service.</p> <p>3. -: -: - — : wrongful discharge. In such case, if defendant, after plaintiff had entered into its service under the contract, wrongfully discharged him, this was as certainly a refusal by it to furnish him the employment agreed upon as its refusal to permit him to enter its service would have been.</p> <p>4. -: -:-: right to discharge for incompetency. In such case, if plaintiff, after entering upon the service agreed upon, was found, after a fair trial, to be incompetent for want of qualification mentally, or if he proved to be too weak or infirm bodily, or was too slow, and could not discharge his duties in proper time, then the defendant might rightfully discharge him, and would not be liable therefor.</p> <p>5. Practice on Appeal: conflicting evidence to support verdict. The evidence being in conflict, this court cannot, under the well established rule, set aside the verdict as not being supported by the evidence.</p>

Action to establish a mechanic’s lieu upon a railroad. The defendants demurred to the plaintiff’s petition, and the demurrer was sustained; and, the plaintiff electing to stand upon his petition, judgment was rendered against him for-costs. Tie appeals.

The action was originally brought upon a promissory note. By an amendment to the petition, other causes of action were joined and declared upon by plaintiff. There was a verdict and judgment for plaintiff. Defendant appeals.

Aff&al from Delaware District Court. This is a proceeding to charge defendant with the support of a bastard child, of which he is alleged to be the father. There was a judgment for the state upon a verdict of a jury. Defendant appeals.

Affeal from Montgomery Circuit Court. The plaintiff, wbo is a tax-payer in Montgomery county, seeks by tbis action to enjoin the defendants, who are members of the board of supervisors of said county, from carrying out a certain contract or resolution of the board, by which certain printing was awarded to four newspapers within the county. An answer was filed, and there was a. motion made to strike out certain parts of it, which motion was sustained.

Action to recover double tbe value of three heifers which were killed by a train on the defendant’s • road at a place where the right to fence existed. The defendant pleaded a tender or offer in writing to pay a certain amount of money, and that the tender had been kept good by the payment of the money to the clerk. To this defense a demurrer was sustained, and on the trial there was a verdict and judgment for the plaintiff. The defendant appeals.

The defendant, John Neiman, and John Hoyne were jointly indicted and charged with the crime of having murdered Henry Barrenger. The defendant was found guilty of manslaughter, and appeals.

Action in chancery to restrain the sale of certain land upon executions issued on judgments against plaintiff, Jones, on the ground that the land constituted plaintiff’s homestead. After a trial, plaintiff’s petition was dismissed. He and intervenors unite in an appeal to this court.

<p>1. Kind of Proceedings: action to enforce lien upon real estate: third parties interested. An action brought to enforce an alleged lien upon real estate in which third parties, made defendants, are interested, and where questions as to the validity of conveyances and mortgages and the priority of liens are to he determined, is an action by equitable proceedings, and defendants in such an action are not entitled to a jury trial.</p> <p>2. Intoxicating Liquors: wrongful sale to husband: judgment FOR DAMAGES TO WIFE: ACTION TO ENFORCE JUDGMENT AS LIEN ON LEASED PREMISES: JUDGMENT AS EVIDENCE OF AMOUNT OF LIEN. Plaintiff had obtained judgment against one "W. for wrongfully selling to her husband intoxicating liquors, on property leased of defendant G., and in this action she seeks to have her judgment established and enforced as a lien on the property, under the provisions of section 1558 of the Code. To prove the amount for which she should have a lien, she introduced, against G’s objection, the record of the judgment. Meld that the record was admissible for the purpose only of proving that he had obtained the judgment, but that it was not admissible as against G., who was not a party thereto, as to the amount to which his property should be subjected. Reed, J., dissenting.</p> <p>3. -: -: practice. In such cases the property owner should be made a party to the original action, so as to make the judgment binding upon him.</p>

The plaintiff claims $2,000 of the ciefendants as damages for unlawfully, willfully and maliciously taking from ’ her private dwelling certain household goods, and converting the same to their own use.

<p>1. Homestead: liability por prior debt: burden op proop. A debt contracted prior to the acquisition of a homestead will he enforced against the homestead, unless the owner affirmatively establishes facts which show that it is exempt from such debt.</p> <p>2. Practice on Appeal: abstract not denied : motion to strike out evidence. Where appellant in an amended abstract states that the original and amended abstract contains all the evidence, and this is not denied by appellee, it must be taken as true, and a motion to strike out the evidence in such case, because not properly certified, overruled.</p>

<p> Appeal from Cherokee District Court. </p> <p>Action to recover of defendant tbe amount due on a promissory note executed by another. There was a judgment upon a verdict for plaintiff. Defendant appeals.</p>

The board of supervisors of the county of Sac granted the defendant a permit to sell intoxicating liquors for lawful purposes. A citizen of tbe county “ filed a written information, on oath, before the district judge,” charging in substance that the de/endant had sold such liquors for unlawful purposes. A citation was issued and served on the defendant, requiring him to appear before the district court and show cause why his permit should not be vacated.

The defendant was convicted of tlie crime of rape, and sentenced to imprisonment in the penitentiary for fifteen years. He appeals.

Action in chancery to quiet the title of certain lands in plaintiff. There was a decree granting the relief prayed for in the petition. Defendant appeals.

Afjgeal from Van Burén District Cowrt. The defendant is a road supervisor, and tbe plaintiff brought this action to enjoin him from opening a highway, on grounds sufficiently indicated in the opinion. A temporary injunction was granted, which was dissolved on motion, and, at the final hearing of the petition, was dismissed. The plaintiff appeals.

Appeal from Monroe Cvrouit Court. Action for a divorce. There was a decree for the plaintiff, and the defendant appeals.

Plaintiffs are the heirs of Alexander Arnold, deceased. Defendant, Robert Spates, was administrator of the estate of said Alexander Arnold, and the other defendants are the sureties on his administrator’s bond.

<p> Appeal from, Lúeas District Court. </p> <p>The defendant was convicted of the crime of forgery, and sentenced to a term of imprisonment in the penitentiary, and from this judgment he appeals.</p>

The plaintiff claims to recover for work and labor done in tbe construction of tbe Leon, Mt. Ayr & Southwestern Eailroad. Tbe defendants, C. Ii. Smith & Co., were tbe contractors. They sublet a portion of the work to McPherson & Neely, who sublet to the plaintiff. McPherson & Neely are indebted to the plaintiff for the work so done.

<p> Appeal from Ida District Court. </p> <p>The plaintiffs brought this, • their action in attachment, against the defendant Bishop, and garnished the defendant Williams, who had money in his hands realized upon a sale of cattle and hogs belonging to Bishop. Palmer & Riclnnan intervened, setting up a claim upon the money. The cause as between the plaintiffs and intervenors came on for trial as an action in equity, and a decree was rendered dismissing the petition in intervention as against the plaintiffs. The intervenors appeal.</p>

The plaintiffs brought tlijs, their action, in attachment, against the defendants Ryland & Troutman, and levied upon certain real estate in the town of Bonaparte, Van Burén county. Cynthia A. Troutman intervened, claiming to be the owner in fee-simple of the property levied on. Her claim, as shown by her petition, was based upon the will of her deceased husband, G-. W. Troutman, who died seized of the property in question.

<p> Appeal from Jasper Circuit Cou/rt. </p> <p>This action was brought at law to recover upon a written contract. Upon motion of defendant the cause was, against plaintiff’s objection, transferred to the chancery docket. Upon a trial on the merits, a judgment was rendered for plaintiff. Defendant appeals.</p>

This action was originally commenced before a justice of the peace, where judgment was rendered against plaintiffs, who appealed to the circuit court. On motion of defendants the circuit court dismissed the appeal, upon the ground that the amount in controversy did not exceed $25. The plaintiff appeals to this court.

In 1873 the boundaries of the plaintiff and defendant districts were changed by the action and concurrence of their respective boards of directors. The plaintiff claims that such action is void, because no such power has been conferred by statute on the directors of independent districts. The defendant has received certain taxes levied on the territory set over to it by such change of boundaries, and the plaintiff brought this action to recover the same.

Action to recover upon an alleged breach of warranty in a contract of sale of a certain lot of hams. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiffs appeal.

Plaintiffs brought this action to recover a balance alleged to be due tbem for certain carriages and wagons sold by them to defendants. Defendants admitted the sale and delivery to them of the property described in the petition, but as a counter-claim they alleged that the property was sold by plaintiff witli a warranty of its quality, and that there was a failure of such warranty, whereby they were damaged in a large amount.

This action was brought by plaintiffs to recover the value of their interest in certain goods which were seized and converted by defendants.

On tbe sixteenth day of December, 1880, the plaintiff was an employe of tbe defendant as a brakeman, and claims tbat be was injured because of the negligence of the defendant in tbe operation of its trains. In September, 1881, he commenced an action in tbe circuit court to recover tbe damages sustained by reason of said injury.

The defendant was indicted for the crime of setting fire to and burning fifteen stacks of hay, the property of one Small. The cause was tried, and the defendant found guilty, and he appeals.

Appeal from Tama District Court. The defendant was convicted in the court below of stealing certain money from the person of another, and be appeals.

The indictment charges that the defendant obtained money by false pretenses. There was a verdict of guilty, and a motion in arrest of judgment and for a new trial, which was overruled. The defendant appeals.

Plaintirr brought this action to recover damages on accouut of certain fraudulent representations alleged to have been made by defendant in the sale of certain interests in a patent-right. There are three counts in the petition. The first count alleges a cause of action growing out of a transaction between plaintiff and defendant; the second count alleges a cause- of action growing out of a transaction between defendant and one O. 0.

Action eor divorce. The appeal is by defendant from an order of the circuit court requiring him to pay to the clerk certain sums of money for the separate support and maintenance of plaintiff during the pendency of the suit, and to-enable her to prosecute the action.

Appeal f rom Jasper Circuit Court. Action on an official bond. Defendant MoCully was clerk of the circuit court, and the other defendants are the sureties on his official bond.

ON REHEARING. These actions were brought to enjoin the collection of a sewer tax levied without notice upon adjacent property as a special assessment. There was a decree for the plaintiffs, and the city appeals.

Plaintiff instituted a suit on an account for goods sold and delivered to defendant. An attachment was issued in the case, which was levied on certain real estate. Defendant filed a cross-petition, in which he alleged that said property was his homestead, and was exempt from judicial sale for the satisfaction of the debt sued on, and be prayed that it be released from said levy.

This is an action at law, by which the plaintiff seeks to recover damages of the defendant for its failure to put in cattle-guards where the railroad of defendant enters and leaves the fenced and improved lands of the plaintiff. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.

Tub plaintiff filed a claim against the estate of Titus B. Eldridge, by which he demanded a balance due to him in the sum of $15,728.

This is an action in equity, by which the plaintiff seeks to set aside and annul a conveyance of a house and lot, made by the plaintiff to the defendant. The alleged consideration of the conveyance was a transfer by defendant to plaintiff of the right to vend and sell a certain patent-right in certain counties in this state, and in Ross county, in Ohio.

■Appeal from, Jasper Circuit Court. This is an action to recover damages upon an injunction bond. There was a demurrer to the petition, which was sustained. Plaintiffs appeal. The facts appear in the opinion.

This is an action in certiorari, by which the plaintiff seeks to annul and set aside a special tax levied upon his property to pay for paving part of one of the streets of the city. It is averred in the petition that the tax was assessed and levied without any notice to the plaintiff, and without any opportunity being given him to appear and be heard in relation thereto.

Action upon two promissory notes, one of wbicb became due November 25, 1871, and the other November 25, 1872. The defendant pleaded the statute of limitations, and the plea was sustained, and judgment was rendered against the plaintiff for costs. He appeals.

TnE petition state's that the defendant, Sloan, recovered a judgment in the circuit court in January, 1882, which, lie claims is a superior and prior lien on the property of the railroad company to a mortgage executed to the trust com: pany about two and one-half years prior thereto.

Appeal'from Benton District Oourt. The plaintiff seeks to recover damages by reason of the alleged negligence of tlie employes of defendant, whereby plaintiff was struck and injured by a moving car. There was a trial by jury, and a verdict and judgment for tlie plaintiff. Defendant appeals.

This is an action to discharge two watches' and certain money from an attachment which was levied thereon at the suit of the plaintiff against the defendant. A hearing was had upon affidavits, and the motion was sustained, and the watches and money were ordered to be discharged from the attachment. Plaintiff appeals.

The defendant railroad company was garnished as the supposed debtor of its co-defendant. Judgment was rendered against both defendants, and they appeal.

Aptpeal from the order, of Hon. II. G. Henderson, judge * of the Eleventh judicial district of Iowa. The plaintiffs, E. L. Dudley, E. IT. Chapman, P. C. Eldridge and M. 0. Healion, were restrained of their liberty by the defendant, George B. McCord, sheriff of Marshall county, and the defendant, Ii. D. East, deputy sheriff of Marshall county. Being so restrained, they made application to the Hon. IT. C. Henderson for a writ of habeas corpus.

This action in equity was brought by the plaintiff, as the administrator of the estate of Franz Malli, deceased, to subject to the payment of tbe debts of the estate certain real estate, tbe legal title to which is in the defendants. The court granted the relief prayed, and the defendants appeal.

Appeal from Woodlunj Circuit Court. Action to set aside a tax deed. There was a decree for the - defendants. The plaintiffs appeal.

<p>1. Promissory Note: indorsement: presumption of holder’s consent. Where an indorsement was made on a note while it was in .the hands of the payee, the presumption must be indulged, in the • absence of strong and convincing evidence to the contrary, that the indorsement was made with the knowledge and consent of the payee, upon the receipt of the money named in the indorsement.</p> <p>2. Trust: payment to trustee: beneficiaries bound by: form of signature to receipt. Where it fairly appears, from a receipt signed with the proper name only of one who was a trustee, that the money receipted for was received by her in her capacity as trustee, and not to her own use, and she had the legal right as trustee to receive and receipt for the money, held that the receipt was binding on the beneficiaries.</p> <p>3. -; PAYMENT OF INTEREST TO TRUSTEE: RECEIPT FOR. One who holds in trust for others the legal title to a note and mortgage may receive and receipt for interest thereon hefor^or after it is dub, and a receipt given for a certain sum in full for interest to a named date will hind the beneficiaries.</p> <p>4. Dry Trust: what is not: payment to trustee discharges debtor. ■ Where the legal title tty a note and mortgage is vested in one fo’>he benefit of others, and it is made his duty to collect the interest "'■and principal when they fall due, and to guard the interests of the beneficiaries, the trust is not a mere dry one, so called, and payments made upon the note and mortgage in good faith to the trustee will discharge the debt pro tanto, and be binding on the beneficiaries,</p>

<p>1. Instructions: must be supported by evidence. An instruction in this case held to be erroneous, because thereby the court submitted to the jury for their determination a question of fact material to the case, on which there was no evidence.</p> <p>2. Principal and Surety: duty op creditor to inform surety op pacts relating to the risk. If a surety, before becoming such, applies to the creditor for information relating to the risk about to be assumed, the creditor, if he answers at all, must disclose all the facts which he knows material to the inquiry; and he can do nothing to deceive or mislead the surety without vitiating the agreement. Whether the creditor is bound, on his own motion, to disclose to one about to become a surety facts within his knowledge increasing the risk, depends on the circumstances of the case. If there is nothing in the circumstances to indicate that the surety is being misled or deceived, or is ignorant of facts materially affecting the risk, the creditor is not bound to seek him out and inform him of the facts; but if he knows, or has good grounds for believing, that the surety is being deceived or misled, or has entered into the contract in ignorance of facts materially increasing the risk, and he knows of such facts, and has an opportunity to disclose them to the surety before accepting the obligation, he must do so, or, for his want of fair dealing in this respect, the surety may afterwards avoid the contract. See opinion for authorities collated by Reed, J.</p> <p>3. -: fraud on surety: avoidance of by payee op note: burden of proof. Where the signature of a surety to a promissory note is obtained by the fraud of the principal, the burden of proof is upon the payee of the note, before he can recover, to show that he took it without knowledge of the fraud. Compare Lane v, Krekle, 22 Iowa, 399, and Union National Bank v. Barber, 56 Id., 559.</p>

This action was brought to recover for damages alleged to have been sustained by reason of a breach of a contract entered into between the plaintiff and the defendant, whereby the latter purchased of the former his interest in a stock of goods. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.

Action in equity to to set aside a tax deed-of certain land in Monroe county. The plaintiff’s petition was dismissed, and judgment was rendered for the defendants for costs. The plaintiff appeals.

<p>1. Jurisdiction: not lost by change of judges between submission and determination of cause. Where an equity cause was tried and submitted in the circuit court, and taken under advisement by the court, under an agreement that the decree should be entered in vacation, but before the cause was determined, by a division of the circuit, another judge came to preside over the court of that county, to whom the cause was transferred, held that the court did not lose jurisdiction of the cause, and that the action of the new judge in considering and determining the case without notice to the parties was at most erroneous, and not void, and that, on appeal from the decree so entered, this court has jurisdiction to try the cause de novo.</p> <p>2. Railroads: right of way deed: agreement to fence, etc.: consideration. Where a deed conveying aright of way for a railroad for a certain named sum contained an agreement on the part of the company to fence the right of way and build crossings, held that this agreement formed a part of the consideration for the right of way.</p> <p>3. -:-:-: measure of damages for failure to perform. In such case, for a failure on the part of the company to build the fence and put in the crossings as agreed, the measure of damages is the difference in the rental value of the land. Varner v. St. Louis & C. E. E’y Co., 55 Iowa, 677, followed.</p> <p>4. -:-:-: damages for failure, and for trespass and negligence: right to lien. Where plaintiff obtained judgment against the defendant company for breach of an agreement, contained in a right of way deed, to fence and build crossings along and over the righ t of way, he was entitled to a lien therefor upon the property of the company; but he was not entitled to a lien for a judgment on account of trespass, nor for a judgment on account of negligence in constructing the road, whereby the premises were overflowed.</p> <p>5. Practice in Supreme Court: cause triable de novo remanded in interest of justice. Although this cause is triable ele novo in this court, yet, as the record is such that it is impossible to determine therefrom what judgment should be rendered, it is remanded to the court below, with leave to both parties to replead in accordance with the suggestions contained in this opinion.</p>

Action on a written contract for the price of a granite monument. There was judgment for plaintiff against defendant, J. G. Safley, and she appeals.

This is an action to recover a judgment against defendant for the alleged careless and negligent killing of a horse at a highway crossing by one of defendant’s trains. There was a trial by jury; verdict and judgment for plaintiff. Defendant appeals.

The plaintiff alleged in his petition that he bad been duly appointed administrator of the estate of Michael Quigley, deceased, by the circuit court of Polk county, in this state, of which, county said deceased was late a resident, and that said Quigley died at Rock Island, Illinois; that he was an employe of the defendant; and that he died from injuries received while coupling cars for the defendant at Rock Island, lie further alleged the necessary facts showing that the…

This is a proceeding to establish a boundary line. The plaintiff, Hannah E. Smith, in her petition states in substance that she is the owner of three 40-acre tracts in section 21, township 80 N., of range 19, in Jasper county, to-wit, the W. £ of N. E. ¿ and N. W. J of S. E. ¿, She also states that the defendants own the three forties on the west; that the boundary line between her land and that of the defendants is lost; that she is desirous of having the same established,…

<p>1. Master and Servant: injury to miner: known negligence-waived and bisk assumed. A miner cannot recover of his employer for an injury caused by a defect in the track or cars used in the mine, or by the want of appliances connected therewith, the condition of which he knew, or in the exercise of ordinary care should have known, at and before the time of the alleged injury, if the alleged defects were such as-he ought reasonably to have foreseen might endanger his safety.</p> <p>2. Railroad in Coal Mine: switch on grade : negligence not presumed. Proof that a switch-track in a coal mine was built upon a grade, does not of itself tend to establish negligence on the part of the-proprietor of the mine in so building it, for it may not have been possi- - ble to build it otherwise; (Compare Foley v. Chicago, R. I. & P. R’y Co., 64 Iowa, 651;) and an instruction in this case, based on a contrary theory, was erroneous.</p> <p>3. Verdict: special finding contrary to evidence: new trial. Where the jury makes a special finding contrary to the evidence, upon-a material and important point, a fair trial cannot be presumed, and the-verdict should be set aside at the instance of the party prejudiced.</p>

<p> Appeal from Marshall Ci/rouit Court. </p> <p>The city of Marshalltown, by ordinance, granted to the defendant the right to construct and operate a “ horse railway upon and along” certain streets in said city. Under this grant the defendant was about to construct, without changing the established grade, such a railway along a street which ran in front of certain real estate owned by the plaintiff and occupied as his homestead. The plaintiff commenced this action in equity to restrain the construction of the railway, on the ground that the plaintiff’s damages as an abutting lot-owner had not been ascertained and paid as provided by law. A temporary injunction was granted, which the defendant, on the answer and certain affidavits, moved to dissolve, which was overruled, and the defendant appeals.</p>

<p> Appeal from Henry District Court. </p> <p>The defendant was convicted of the crime of burglary, and sentenced to a term of imprisonment in the penitentiary, and from this judgment he appeals.</p>

<p>1. Tenants in Common: right of occupancy: liability to account: action in partition: receiver. It is the right of a tenant in common to occupy the common property, and such occupancy alone does not render him liable for rent. But if the occupying tenant should refuse to allow his co-tenant to occupy with him, such refusal might be deemed an ouster, and in that case the occupying tenant may be held liable to account. It follows that, where the tenant in possession is occupying under such circumstances that he is not liable to account, such mere occupancy affords no ground for the appointment of a receiver, pending an action for partition.</p>

<p>1. Circuit Court: probate business: must be transacted within the county. Under section 2313 of the Code, the circuit court has no authority to hear and determine a matter in probate outside of the county where it belongs, and an order made outside of such county is void. Casey v. Stewart, 60 Iowa, 160, and Rogers v. Loop, 51 Id., 41, distinguished.</p> <p>2. Landlord and Tenant: possession under void lease: liability eor rent reserved. A lessee of land for coal-mining purposes, under a Lease which is void, is not liable for rent, where he has done no mining, although he may have enjoyed undisturbed possession of the land, so far as necessary for the purpose of prospecting for coal. Franklin v. Twogood, 18 Iowa, 515, and Shawhan v. Long, 26 Id., 488, distinguished.</p>