Volume 69 — Iowa Reports

Action to quiet title to eighty acres of land in Black Hawk county. It is undisputed that the plaintiff owns an undivided three-fourths of the land. The defendant, Brown, claims the ownership of an undivided fourth.

On the morning of August 18, 1881, the plaintiff took passage on defendant’s railroad at a small station named Weston, intending to travel to Council Bluffs, a distance of ten miles. He did. not procure a passenger ticket, and the conductor of the train demanded ten cents in addition to the ticket rate, which the plaintiff refused to pay. Thereupon the conductor caused the train to be stopped, and he forcibly ejected the plaintiff therefrom.

Action to recover tlie value of certain corn levied upon by plaintiff as sheriff, which was taken by defendants, and converted to their own use. There was a judgment upon a verdict for plaintiff. Defendants appeal.

There was a controversy existing between the defendant and Beard & Turner, which was submitted to arbitration, and this action was brought to recover the amount awarded Beard & Turner by the arbitrators. The plaintiff claimed that such amount had been assigned to him.

The city of Des Moines caused sewers to be constructed on certain streets on which Capitol Square (which belongs to the state) fronts, and issued to the contractors who performed the work certificates of assessment against the adjacent property, including said square, and a lot belonging to the state, in payment therefor. Plaintiffs are the owners of the certificates which evidence the assessments, made for this purpose, on the property of the state.

Action to recover damages sustained by plaintiff by reason of the mistake of defendant’s employe in transmitting incorrectly a telegraphic message sent to plaintiff. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action in chancery to set aside the cancellation of a mortgage, and to foreclose the same. A decree was entered declaring that the land mortgaged is not subject to defendant’s judgment, which differs from the relief prayed for in tlie petition. Defendants appeal.

<p> Appeal from O'Brien Gireuit Court. </p>

<p>"Witness: refusal to produce books: crimination of employer: contempt. The agent of an express company and of a railroad company is not excused, by § 3647 of the Code, from obeying a subpoena of the grand jury, requiring him to produce certain books of the corporations, for the purpose of showing thereby that the corporations hare been guilty of transporting intoxicating liquors contrary to law, on. the ground that the books would criminate his employers; and, for refusing to obey, the witness in this case was properly adjudged guilty of contempt.</p>

Action to set aside a tax deed because of the invalidity of the sale. A demurrer to the petition was overruled, and the defendants appeal.

This is a controversy involving the ownership of a stock of agricultural implements. The plaintiffs claim to be the owners by virtue of a sale of the property made to them by one Eaton. It is conceded that Eaton was the owner of the goods, but the defendant Barbee, who was a creditor of Eaton, claims that the sale and transfer under which plaintiffs assert title to the property was fraudulent as to thé creditors of Eaton.

Plaintiees, who are real-estate agents, brought this action to recover a commission on the sale of certain real eatate. They recovered a judgment in the court below from which defendant appealed.

<p>Appeal from Palo Alto Gireuit Court.</p> <p>Action in equity to determine tbe ownership of real estate. From the decree both parties appeal.</p>

Action upon an account foi: goods purchased of plaintiffs by defendants. The cause was tried by the court without a jury, and judgment rendered for defendants for the amount of a counter-claim set up by them in their answer. Plaintiffs appeal.

Action for damages alleged to have been sustained by reason of a nuisance caused by defendant. The plaintiff also prayed for an injunction to abate the nuisance. There was a trial to a jury, which found the existence of the nuisance, and rendered a verdict for $20 damages. The defendant appeals.

Upon an information filed before a justice of the peace charging defendants McEvoy and MeClarity with keeping intoxicating liquors with intent to sell the same contrary to law, a search-warrant was issued, and a large quantity of bottled beer was seized thereon.

On the seventeenth day of July, 1882, A. B. Fisher, plaintiff’s intestate, executed two deeds, by which he conveyed to defendant a farm consisting of forty five acres. He subsequently instituted this suit in equity for the cancellation of said deeds, on the alleged grounds that they were executed without consideration, and that they were obtained by fraud and undue influence. During the pendency of the action Fisher died, and his administrator was substituted as plaintiff.

Action for damages on account of the injury to plaintiff’s means of support caused by the intoxication of her husband. Two causes of action are alleged in the petition.

<p> Appeal from Ring gold Circuit Court. </p> <p>Action for a divorce. Decree for the plaintiff and defendant appeals.</p>

<p>1. Counter-claim: debt due dependant as executor. One who is sued upon a personal debt cannot plead as a counter-claim a debt which the plaintiff owes him as the administrator of an estate.</p>

<p> Appeal from Woodbury District Court. </p> <p>This is an ordinary action on a money demand. Plaintiff recovered a judgment in the district court, and defendant appeals.</p>

The plaintiff demands judgment against tbe defendant upon a promissory note for $250, executed by defendant on the first day of February, 1876, and due in five years. The -defendant interposed an equitable defense, and the cause appears to have been tried as in equity. There was a decree for the defendant. Plaintiff appeals. ■'

<p> Appeal from Louisa District Gourt. </p> <p>. Action at law. Trial by jury. "Verdict and judgment for the plaintiff, and defendant appeals.</p>

Mandamus to compel defendants to levjr taxes to satisfy a judgment recovered by plaintiff against the district township of Sumner, of which the defendants are successors. A demurrer to the petition was sustained, and judgment rendered for defendants. Plaintiff appeals.

Action in chancery to quiet and establish plaintiff’s title to certain land against the claims of defendants. The answer of defendants alleges that plaintiff’s claim of title is based upon certain tax sales and deeds, which, it is averred, are irregular, fraudulent and void. Defendants allege that they hold the patent title to the land, and pray that it be quieted in them.

This is an action in equity, by which the plaintiff claims the right to redeem certain land from a sheriff’s sale on the foreclosure of a mortgage on the land. The cause was submitted to the district court upon the pleadings without evidence, and upon a motion of the plaintiff for a decree. The motion for decree was overruled, and the petition was dismissed. Plaintiff appeals.

Action to recover for labor rendered by plaintiff' for the defendant under a written contract. The action was brought originally before a justice of the peace of Harrison township, Harrison county. Judgment was rendered for the plaintiff. An appeal was taken by the defendant to the circuit court, and judgment was again rendered for the plaintiff. The defendant appeals to this court.

Action on a policy insuring against high winds, cyclones or tornados, to recover for the loss of the insured building. The cause was tried to a jury, which rendered a verdict for defendant, under an instruction by the court, upon which judgment was rendered. Plaintiff appeals.

The plaintiff seeks to recover in this action for a personal injury which she alleges she received by reason of the negligence of the defendant in leaving a railroad car “ at and near the crossing of Third avenue of the town of Sheldon, Iowa, on said defendant’s track.” She alleges that while attempting to cross said track the horse driven by her became frightened at said car, and ran away, and that she was thrown from the cart or buggy drawn by the horse, and was thus…

Plaintiff brought this action to recover damages for an injury to certian horses belonging to him, which he alleges were struck by a locomotive and train of cars on defendant’s railway. It is charged in the petition that tbe injury occurred at a point on defendant’s track where it bad tbe right to fence tbe same against live stock running at large, but that it had neglected to fence the track at that point, and the injury was occasioned by this neglect.

The petition contains four counts, and the plaintiff seeks to recover rent under an express contract on an account for money received, and for the use and occupation1'of certain premises. There was a denial of the allegations of the petition and a counter-claim pleaded by the defendant. Trial by jury, judgment for plaintiff, and defendant appeals.

<p>1. Estates of'Decedents: claim of heir to land: gift or advancement: evidence considered. The evidence in this case considered, (see opinion,) and held not to establish a paiol contract, followed by possession, for the sale of the land in question by the decedent in his lifetime to his son, but only an agreement to make an advancement of the land to his son.</p> <p>2.--: advancement definbd: who entitled to. An advancement is a gift by anticipation, from a parent to a child, of the whole or a part of what such child will inherit on the death of the parent. But where an heir has taken possession under an agreement for an advancement, but without a title, and he elects to share equally with the other heirs in the residue of the estate, equity will not wrong the other heirs by decreeing the enforcement of the parent’s promise to convey to him the specific property as an advancement.</p>

<p>1. Promissory Note: blank indorsement: parol evidence to explain. Where there is a blank indorsement of a promissory note, it is competent to establish by parol a different contract from that which in such case is implied by law; (Harrison v. McKim, 18 Iowa, 485;) but it is not competent thus to prove that no obligation or contract of any. description was entered into or intended by the blank indorsement of the note.</p>

Action upon an account, and for money paid upon notes given by defendant to another, upon which plaintiff was surety. An attachment was issued in the case, and levied upon certain property of plaintiff. Defendant pleaded certain defenses to the action, and set up as a counter-claim damages sustained by reason of the wrongful suing out of the attachment. There was a j udgment upon a verdict for defendant for $654.55, and costs. Plaintiff appeals. '

<p> Appeal from Adams District Gourt. </p>

Appeals from a decision of Hon. G. H. Lewis, Judge of the District Court of Plymouth County. These actions were brought for the purpose, of obtaining an injunction in each case, to prevent the use of premises in the city of Le Mars in the business of selling liquor in violation of law. In each case there are made defendants the persons alleged to be engaged in the business, and the owners of the premises, and the premises themselves.

This is an action upon an account. There was a trial by jury, and a verdict and judgment for the plaintiffs. Defendant appeals.

Action to recover of the defendants, who are husband and wife, for necessaries furnished the family. Mrs. Turner demurred to the petition, and the demurrer was overruled, and she appeals.

This is an action of replevin, in which the plaintiffs seek to recover certain personal property, tbe possession of which they claim they are entitled to by virtue of a chattel mortgage executed by one Wickham to one Conger, and assigned by Conger to the plaintiffs.

The plaintiff, James McCabe, shows that in 1879 he contributed five dollars to assist the defendant, Belle O’Connor, a poor sewing woman, to erect a small and inexpensive dwelling-house for herself. He now brings this action in equity to obtain a decree for the sale of the house, and for the repayment to him from the proceeds of the five dollars contributed, or so much of the five dollars as shall appear to be his equitable share of the proceeds.

Action to recover for trespass to real estate, and for appropriating certain crops grown thereon. There was a trial to a jury, and a verdict and judgment were rendered for the plaintiff. The defendant appeals.

Action to recover city taxes paid by the plaintiff upon real estate within the corporate limits, on the ground that the same was not taxable for city purposes. Trial to the court, and judgment for the plaintiff. The defendant appeals.

Action to recover at law for money paid defendant in the purchase of land jointly by the parties to this suit; the sum claimed being in excess of the sum which should have been paid by plaintiff. The cause was tried to the court without a jury, and judgment was rendered for defendant. Plaintiff appeals.

The plaintiff’s are the owners of certain land, upon which they maintain, cultivate and carry on a general nursery business. The nursery stock, consisting of plants and trees in process of growth,-was assessed for the year 1885 by the township assessor as personal property. At the same time the real estate whereon said nursery stock was situated and growing'was assessed for taxation at its fair and reasonable value.

Grawford District Oowrt Indictment charging the defendant with the larceny of a horse. Trial by jury. Yerdict and judgment. The defendant appeals.

Ajpjgeal from Page CvreuAt Coivrt. This action involves the ownership, of a promissory note. There was a trial to the court without a jury, and a judgment for the plaintiff. The Exchange Bank, having intervened in the action, appeals.

Action against defendants on their indorsement of a draft drawn by a banker doing business at Odebolt, in this state, on the First National Bank of Chicago. Plaintiff recovered judgment in the circuit court, and defendants appealed. The material facts are stated in the opinion.

This action is for tbe recovery of damages for a personal injury, sustained by the plaintiff while in defendant’s employ as a brakeman on one of its freight trains; such injury being caused, as plaintiff alleges, by the negligence of defendant and its employes. The verdict and judgment were for plaintiff. Defendant appeals.

Action upon a policy of insurance. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

<p>1. Railroads: risks assumed by employes: dangers from snowbanks. Dangers from snow-banks are inseparable from the operation of railroads where snow prevails, and is removed from the track by snow-plows; and when employes enter the service they assume such risks. Dowell v. Burlington, C. R. & N. R’y Co., 62 Iowa, 629, and Brown v. Chicago, R. I. & P. R’y Co., 64 Id., 652, followed.</p> <p>2. -: snow-banks: signals. Railroad companies ave under no obligation to place signals at snow-banks along their tracks, nor to give notice by whistle or bell of the approach of a train to a snow-bank, in order to protect trainmen from injury.</p> <p>3. -: INJURY TO NEGLIGENT TRAINMEN: SPEED OF TRAIN IMMATERIAL. Where a trainman recklessly puts himself in a position of danger upon a train moving with unusual speed, and is injured, he cannot recover of the company on the ground that his co-employes were negligent in running the train too fast.</p>

Action to recover for personal injuries sustained by plaintiff by reason of the negligence of defendant and its employes. There was a judgment in the court below upon a verdict for plaintiff. Defendant appeals.

A.otion to recover specific personal property, consisting of a stock of boots and shoes.

Upon the application of the plaintiff the district court issned a certiorari, and upon the hearing it was adj udged that the plaintiff was not in contempt, and he was discharged. The defendant appeals.

Action in equity to enforce the specific performance of a contract to convey real estate. The circuit court entered judgment in accordance with the prayer of the petition. Defendants appealed.

Proceedings in certiorari to test the validity of an order of fine and an imprisonment made for an alleged contempt of court. The writ was issued in each case.

Action upon a policy of insurance. There was a judgment in the circuit court upon a verdict for plaintiff. Defendant appeals.

Action in equity for the foreclosure of a mortgage. It is alleged in tbe petition that on the fifteenth day of July, 1881, plaintiff sold and conveyed certain real estate to S. B. Ireland, who gave his promissory note for $400 of the purchase price thereof, and to secure the same gave a mortgage on the premises; also that said note and mortgage, although they were still the property of plaintiff, and had néver been assigned or transferred by him, had been wrongfully…

The defendant was indicted for an assault witli intent to disfigure one Daniel Barnes by biting off bis ear. There was a verdict of guilty, and judgment was rendered on the verdict. The defendant appeals.

Action to recover damages for causing water to flow on the premises of the plaintiffs, thereby causing a nuisance. Trial to the court, judgment for the plaintiffs, and defendant appeals.

Action in equity to reform and recover on a policy of insurance against loss or damage by fire or lightning. Partial relief was granted the plaintiff, and both parties appeal.

The plaintiff seeks by this action to establish a dower right in an undivided interest in 160 acres of land. There was a decree for the plaintiff, and defendant appeals.'

Action for the recovery of damages on account of the publication by defendant of certain alleged slanderous words of and concerning plaintiff. The district court sustained a demurrer to the petition, and, plaintiff electing to stand thereon, judgment was entered against him for costs, and he appeals.

, This is an action at law by which plaintiffs seek to recover of the defendant for a car-load of gas oil sold .by plaintiffs to the defendant. There was a trial by the court without a jury, and a judgment was rendered for the plaintiffs. Defendant appeals.

' Action at law to recover damages sustained by plaintiff by reason of defendant’s violation of and refusal to perform a written contract to enter into a lease of certain coal lands for mining purposes. There was a judgment upon a’verdict for plaintiff. Defendant appeals.

Action in equity to restrain tbe defendants from selling a certain quarter section of land on execution. The facts disclosed by the petition are that Peter Overmier died in January, 1861, seized of the property in question, and leaving surviving him the plaintiff Eleanor Overmier, his widow, and three sons.

Appeal from Mitchell District Court The defendant was convicted of tlie crime of selling intoxicating liquor in violation of law, and now appeals to this court.

• Action to recover damages for the wrongful use of a trademark for flour, and for other wrongs. Plaintiffs dismissed their action, and subsequently defendants filed an amendment to their answer, setting up a counter-claim, and separate answers, setting up separate counter-claims in favor of the defendants severally. These separate answers and amended answer were stricken from the files on motion of plaintiffs. Defendants aj>peal.

Action in equity upon a promissory note and mortgage executed by the defendant Callen. He answered, admitting the execution, but averring that he had been notified that Murray Nelson claimed to be the owner of the note and mortgage, and had possession of the same. Murray Nelson intervened, setting up his possession and ownership, and asking for a decree of foreclosure.

The plaintiffs are the owners of some ten or eleven lots fronting on Main street, in the city of Dubuque.

Action to recover for certain horses killed by a train operated upon defendant’s railroad. After the evidence of the parties was submitted, the jury returned a verdict for defendant under direction of the court, and judgment was rendered thereon. Plaintiff appeals.

Prooeedin&s in certiorari to test the validity of an order of fine and imprisonment made for an alleged contempt of court. The writ was issued in each case.

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

Appeal from Plymouth District Court. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.

This is an action at law to recover the value of certain personal property, which it is alleged the defendant, as assignee of one Morris, wrongfully took possession of and sold. There was a trial to the court, and a judgment for the plaintiff. Defendant appeals.

<p>1. Change of Venue: what is: second change. The statute relating to changes of venue does not contemplate a change of forum as distinguished from a change of the place of trial; and when the change is made on account of the prejudice of the judge, and is sent to another court of the same county, it is as much a change of the place of trial, within the meaning of the statute, as when it is sent to another county on account of the prejudice of the inhabitants; and when a change of either kind has been had, a second change cannot be had for any cause which was in existence when the first change was obtained.</p> <p>2. Practice on Appeal: judgment on wrongful change of venue. The judgment of a court in a case which lias been sent to it upon an unlawful change of venue must be reversed, and the cause will be remanded to the court which granted the unlawful change. (Ferguson v. Davis Co., 51 Iowa, 220, followed.)</p>

The parties are the owners of adjoining farms, the farm owned by plaintiff lying immediately north of that owned by defendant. There is a public highway running east and west between the two farms. This highway makes a right angle at the north-east corner of defendant’s farm, and runs south, along his east line.

This case involves the validity of the plaintiff’s right of way for its railroad over 160 acres of land in Kossuth county. The court below beld tbat the right of way was valid, and the defendant appeals. The facts appear in the opinion.

This is an action to recover damages for an alleged personal injury. The plaintiff was in the employ of defendants as a miller in their flouring mill at Cedar Eapids.

Appecol from Jones Circuit Court. Action upon a contract and upon an account. There was a trial to a jury, and verdict and judgment were rendered for the plaintiffs. The defendant appeals.

This is an action at law upon tbe official bond of W. R. Buggies, late treasurer of Carroll county, to recover some $24,000 of public money which it is alleged said Buggies failed to account for and pay over to his successor in office. There was a trial to the court without a jury, and a judgment for the plaintiff. Defendants appeal.

Action in equity to set aside an executor’s settlement. The plaintiff, Augusta Schmidt, is one of the children and devisees of Peter Littig, deceased. The defendant, John Littig, is executor of his estate. The plaintiff alleges tliat the defendant has been guilty of fraud in failing to report, as an asset of the estate, a debt due from him to the testator at the time of his death, and in charging her with $1,200 as an advancement applicable upon her legacy.

The defendant was a stockholder in an insolvent corporation, and this action was brought at law to recover of him a debt of the corporation. Trial by jury. Judgment for the defendant and plaintiff appeals.

Action upon two promissory notes. There was a trial without a jury in the district court, and a judgment for plaintiff. Defendants appeal.

Action on a promissory note. Answer denying under oatli the genuineness of defendant’s signature to the note. Yerdict and judgment for plaintiff. Defendant appeals.

The defendant was indicted for the crime of rape. He was tried by j ury, and convicted of an assault with intent to commit a rape. He appeals.

Plaintiff, as assignee of one Darby Carr, brings tbis suit to recover damages for a personal injury sustained by said Darby Carr while in defendant’s employ as a laborer on -a gravel train, and which was occasioned, as it is alleged, by tlie negligence of his co-employes. Tliis appeal is from the order of the circuit court sustaining a demurrer to certain counts of defendant’s answer.

The defendant FrankKyte was treasurer of Howard county. He became a defaulter in a large amount of money, and the plaintiff commenced an action in attachment against him. J. De Noyelles, a creditor of Kyte, also commenced an action in attachment. The writs of attachment were levied upon certain personal property of Kyte, and this controversy involves the question as to the rights of the plaintiff and the intervenor in the proceeds of the sale of certain grain by the sheriff.

Action to recover damages sustained by plaintiff from defendant’s careless construction of a ditch, and negligence in failing to provide sluiceways to carry off water, and in permitting water-ways to become filled up, whereby plaintiff’s lot was overflowed, and his buildings and well were injured, his trees and shrubbery destroyed. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Indictment, charging that the defendant murdered William Doran. Trial by jury. Yerdict guilty, and that the defendant be imprisoned for life in the penitentiary, and judgment was accordingly entered. The defendant appeals.

This action was originally brought before a justice of the peace to recover double the value of a cow which it is alleged ivas killed by one of defendant’s trains of cars at a place where there was no fence, and where the defendant had the right to fence its road.

This action was commenced before a justice of the peace to recover $55, as damage sustained by plaintiff by reason of the destruction of his wagon by the negligent act of defendant’s employes in operating a train upon its railroad. Upon an appeal to the circuit court, taken by defendant, there was a judgment upon a verdict for plaintiff. Defendant now appeals to this court. The facts of the case appear in the opinion.

Action to recover possession of a carriage, billiard table and sleigh. Trial to the court. Judgment for the plaintiff, and defendants appeal.

.^Appeal from Jones Circuit Court. This is an action in equity for the foreclosure of a mortgage upon certain real estate. The defendant Eckler-claimed an attachment lien upon an undivided half of the land. The question presented by the pleadings was whether the mortgage or the attachment was the prior lien. The circuit court found that the attachment was superior to the mortgage. Plaintiffs appeal.

Appeal from Page District Court. Action ok replevin. There was a judgment upon a verdict for plaintiff in the district court. Defendant appeals.

Action to recover for personal injury. There was a trial to a jury, and a verdict was rendered for the plaintiff. The defendant filed a motion for a new trial, and the same was sustained. The plaintiff appeals from the order sustaining the motion for a new trial.

Appeal from Dubuque Circuit Court Action in chancery to foreclose a mortgage. There was a decree granting the relief prayed' for by plaintiff. Johnson, a junior incumbrancer, appeals.

Appeal 'from Mills District Oourt. Action on a promissory note executed by Noel, Lewis, Salyers and Donner. Separate answers were filed by Lewis and Salyers and Donner, to which a demurrer was sustained, and the said defendants appeal.

The plaintiff avers in her petition that she is the holder of the patent title to a tract of land in Shelby county; that the same was sold at tax sale in 1872; and that in 1876 a tax deed was executed to the purchaser, and recorded, and that the defendants claim to hold under such deed. She further avers that no notice of the expiration of redemption was given, and that the tax deed, for that reason, was void; and she asks to be allowed to redeem from the tax sale.

<p> Appeal from Clinton Circuit Court. </p> <p>This action was brought to obtain possession of a cow owned by the plaintiff, but wbicb tbe defendant, as marshal of tbe city of Clinton, had impounded under an ordinance of tbe city. Judgment was rendered for tbe plaintiff, and the defendant appeals.</p>

This action was brought by Elizabeth Cooper to recover for a personal injury alleged to have been sustained by her by reason of the negligence of the defendant in the erection and maintenance of a county bridge. There was a trial to a jury, and verdict and judgment were rendered in her favor for $25,000. The defendant appealed. The plaintiff died, and the present plaintiff, W. R. Cooper, was substituted as administrator of her estate.

Appeals from Hamilton Circuit Court. Margaret M. Dunlap was the widow of James Dunlap, who died intestate in 1883. The said James Dunlap at one time was seized of two parcels of real estate in Hamilton county. In the year 1869 he sold and conveyed said real estate to one Joseph Counts.

The original notice was served on the defendants on the sixteenth of October, 188b. It required them to answer on the second day of the term of the district court, which commenced on the twenty-seventh of that month. A writ of attachment was sued out, and placed in the hands of the sheriff on the day on which the suit was instituted. This writ commanded the sheriff to attach property of the defendants sufficient to satisfy the amount of damages claimed by plaintiffs.

This is a proceeding by quo warranto to determine whether defendant lawfully fills the office of director of an independent school district. The cause was tried to a jury, and judgment was rendered upon a verdict for defendant. Plaintiff appeals.

The petition in this cause contains three counts: one for slander, one for libel, and one for malicious prosecution. The defendant demurred to the petition. The demurrer was sustained, and plaintiff appeals.

<p>1. Administrator: sale of land: covenants: who bound by. An administrator who sells real estate under the order and direction of a court has no power to hind the estate by any covenants which may be contained in the deed. Whether he may be personally bound by such covenants, quaere.</p>

Ira Burbank died on the second of July, 1877. His will, which was executed in 1871, was admitted to probate by the circuit court of Fayette county on the twentieth of October, 1877. It contains the following provision: “I give to my sister, Almira Burbank, the sum of one hundred dollars yearly, during her life, this annuity to commence at my death.

Action in chancery to restrain defendant from obstructing a highway. There was a decree in the district court granting the relief prayed for in the petition. Defendant ajipeals.

Action in chancery to restrain defendants, who are directors of a school district, from paying for a school-house erected under a contract made by them, and to annul the contract, and for other relief to which plaintiff may be entitled in equity. There was a decree granting relief to plaintiff. Defendants appeal.

<p>1. Injunction: dissolution upon answer: practice. Where the answer to a petition in injunction does not (after eliminating allegations which are mere conclusions of law) deny the allegations of the petition, but sets up an affirmative defense by way of avoidance, the injunction will not be dissolved on motion, but will be continued to,the hearing; — following cases cited in opinion.</p>

Action in chancery to foreclose a mortgage upon lands. There was a decree of foreclosure and a judgment rendered against the mortgagor, but the decree provided that a mortgage held by defendant Lathran was a lien upon the lands paramount to plaintiff’s mortgage. From this provision of the decree the plaintiff appeals.

Action to enjoin the defendants from closing up a highway. The court found and entered a decree that the plaintiff was entitled to a private way across certain real estate owned by the defendants, and they appeal.

Habeas ooepus. The petitioner for the writ was convicted under the statutes prohibiting the sale of intoxicating liquors, fined, and committed to the jail of Sac county until the fine and costs should be paid. A writ of habeas corpus was granted by one of the justices of this court for the purpose of determining the legality of such imprisonment.

The plaintiff is guardian of Hannah Hummel, an insane person, and he claims that his ward is the widow of Peter C. Hummel. This action was brought to recover his ward’s distributive share in real estate owned by the said Peter in' his life-time. .Trial to the court, judgment for the defendant, and the plaintiff appeals.

Action in equity. The facts are stated in the opinion. The relief asked by the plaintiffs was granted, and the defendant appeals.

The plaintiff in this action holds a promissory note signed by the defendants, W. II. Mahin and W. E. Petty, made payable one year from date, and providing for interest at tenjier cent from maturity, and for an attorney’s fee of ten per cent.

Action against a junior incumbrancer to foreclose a mortgage. There was a decree declaring plaintiff’s mortgage to be the paramount lien, and providing .that defendant be permitted to redeem therefrom upon the payment'of the amount due upon plaintiff’s mortgage, after deducting certain sums found to be the value of the rent of the land, the possession of which was held by him. The defendant appeals.

Plaintiff brought this action to recover the value of a mare which lie alleges was killed by the negligent and malicious act of the defendant in causing her to jump upon a barbed-wire fence and -become entangled therein. lie also sued out a writ of attachment in the action, and caused certain persons who were indebted to defendant to be garnished thereon. Defendant denied that said mare was injured by any wrongful or negligent act of his.

The defendant was accused, by indictment, of murder in tbe first degree, committed, as was charged, in the killing of one George Woods. He was found guilty of manslaughter, and sentenced to a term of imprisonment in the penitentiary, and from that judgment he appeals.

Action to recover for money alleged to have been received for the plaintiff by the defendants as his attorneys. There was a trial to the court without a jury, and judgment was rendered for the plaintiff. The defendants appeal.

The defendant, Anderson, is treasurer of Lee county, and this action was brought to enjoin the collection of certain taxes by the sale of real estate belonging to plaintiff. The relief asked was denied, and the plaintiff appeals.

Appeal from Van Btiren District Court. Action at law upon a promissory note. There was a vei’dict and judgment for defendant. Plaintiff appeals.,

Action upon an account for services. There was a trial to the court without a jury, and judgment was rendered for the defendant. The plaintiff appeals.

Appeal from Woodbwry District Court. Action in equity to determine the ownership of real estate. Judgment for the plaintiff, and defendant appeals.

The board for the equalization of taxes for the city of Centerville, in proper proceedings, increased the assessment of plaintiff from $5,000 to $15,000. Upon an appeal to the circuit court his assessment was fixed at $9,750, and a judg- ' ment rendered to that effect. The defendant appeals.

The petition states that the defendant, without right or authority, entered upon certain real estate owned by the plaintiff, and constructed its road over and across tbe same, threw down her fences, destroyed her growing crops, failed to construct cattle guards, and otherwise injured the plaintiff’s premises, to her great damage.

Plaintiff’s intestate, while an employe of the defendant, engaged in the operation of one of its trains, received injuries which caused his death. This action was brought for the recovery of the damages sustained by his estate in consequence of his death. Tue verdict and judgment were for defendant, and plaintiff appeals.

Action to recover for personal injuries sustained by plaintiff from a fall caused by a defective sidewalk constructed upon one of the streets of defendant. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action for a personal injury. There was a trial to a jury, and a peremptory instruction was given to render a verdict for the defendant, which was done, and judgment was rendered against the plaintiff for costs. He appeals.

Action to recover damages for the loss of the services of the plaintiff’s minor son, who was killed, as the plaintiff claims, by a train on defendant’s railway. Trial by jury, judgment for the plaintiff, and the defendant appeals.

Action in equity to quiet in plaintiffs the title to a quarter section of land. The land was sold for delinquent taxes at the annual tax sale in 1878, and in December, 1882, the treasurer executed to plaintiff James II. Easton, a tax deed therefor, and since that date he has made a conveyance of an undivided one-half thereof to the plaintiff J. W. Burdick.

Action to recover money due as rent. A landlord’s attachment was sued out. Trial to the. court. Judgment for the defendants, and plaintiff appeals.

Action 'to recover the amount of a fine and costs imposed by the mayor of defendant, under an invalid ordinance, upon plaintiff’s assignor, the fine and costs having been paid by the assignor. The action was brought before a justice of the peace, where a demurrer to plaintiff’s petition was overruled. Upon a writ of error the circuit court decided differently. Plaintiff appeals.

<p> Appeal from Boone Circiát Court. </p> <p>Action to enforce a mecbanic’s lien. There was a decree for the plaintiff. The defendant appeals.</p>

On the twenty-fifth of September, 1877, defendant F. A. Gere executed to plaintiff’s testate bis promissory note for $400, on which a judgment was obtained in the district court in February, 1882, which judgment remains unsatisfied. When this action was instituted, a suit was pending in the district court in favor of defendant N. M. Gere, against the Council Bluffs Insurance Company, in which the plaintiff therein sought to recover on a policy of insurance.

The plaintiffs brought suit by attachment against the defendant, Louis Scholtz, and caused his wife, Marian L. Scholtz, to be garnished, claiming that she was the debtor of her husband. The garnishee in her answer denied her indebtedness. Issue was joined upon the answer; the plaintiffs, by proper pleadings, contradicting it. The cause was tried to a jury, and a verdict and judgment were had for plaintiffs. The garnishee appeals.

The plaintiff is a resident and tax-payer of Tillage township, Yan Burén county, and, as such, caused to be issued a certiorari for the purpose of determining the legality of a tax voted by the electors of the township for the purpose of aiding in the erection of a county bridge across the Des Moines river in said township. The defendants are the township trustees. The court annulled and set aside the tax, and the defendants appeal.

Defendant was indicted for bigamy, and, upon conviction, was sentenced to tlie penitentiary for two years and six months. lie now appeals to this court.

On the eighteenth day of April, 1883, plaintiff delivered. to defendant, at the city of Des Moines, one car-load of property, which the latter undertook to transport to the town of Miller, in Dakota territory. The property shipped in the car consisted of six horses, two wagons, three sets of harness, a quantity of grain, a lot of household and kitchen furniture, and personal effects.

Pbaintiff brought this action to recover damages for certain personal injuries which he alleges he sustained while traveling as a passenger on defendant’s railway. The verdict aud judgment were for defendant, and plaintiff appeals.

Ajipeal from Marion Circuit Court. Plaintiff filed a claim against the estate of Mary Z. Swallow, deceased of wliicb defendant is administrator. Defendant answered, alleging that be had no assets of the estate in his hands with which to pay said claim.

Ajgjoeal from Garroll Ci/rcuit Court. Tub plaintiff is administrator of the estate of John Wall, who in 1880 was an employe of the defendant, and who, by reason of the negligence of the other employes, was so injured that he soon thereafter died.

Habeas corpus. The petitioner, Baldwin, was in the custody of the sheriff of Yan Burén county. Upon a writ of habeas corpus, issued by the. district court of Jefferson county, he was discharged from such custody. The sheriff appeals.

Action by attachment, in which two colts were levied-upon as the property of defendant. Mount intervened, claiming the colts under two mortgages executed to him by the defendant.' A demurrer to the petition of intervention was sustained. The intervenor appeals.

The defendant was indicted and tried for the crime of larceny in stealing two colts, the property of one Stewart Having been convicted, he appeals to this court.

Appeal from Lyon Circuit Cowrt The petition states that the defendant placed his farm in plaintiffs hands for sale, and that he sold it, and that his services were reasonably worth $165, for which amount judgment was asked. The defendant pleaded a general denial. Trial by jury, judgment for the defendant, and plaintiff appeals.

<p>1. Appeal to Supreme Court: less than $100: time of signing certificate. This court has no jurisdiction of an appeal involving less than $100 unless the certificate of the trial judge is signed at the term at which the case is tried below. A certificate made at the next term, nunc pro tunc, is not sufficient.</p>

JLjppeal from Warren GircuÁt Court. Action in equity to enforce specific performance of an alleged contract for the conveyance of real estate. The circuit court entered a judgment granting the relief demanded. Defendant appeals.

Action in equity to set aside a judgment and execution sale and sheriff’s deed. The court dismissed the plaintiff’s petition, and he appeals.

<p> Appeal from Keokuk Cvrotdt Court. </p> <p>Action on a lease, and to recover damages for a failure to perform the conditions of the lease. Trial by jury. Verdict for the plaintiff for $28.75. Upon motion of the defendant judgment was rendered for it notwithstanding the verdict. The plaintiff appeals.</p>

Action upon an account. The defendant denied that there was anything due from him, and pleaded a counter-claim. • There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.

There are three counts in the petition. There is no material difference between the first and second, and therein it is stated that the defendant was elected and qualified as treasurer of the plaintiff, and that, as such, he received certain money which he failed to account for as provided by law, and that he converted the same to his own use.

<p> Appeal from Jasper Oireuit Cowl. </p> <p>On tlie first of November, 1882, the defendant took possession of and began to operate a railroad which had been previously constructed through plaintiff’s farm. Said farm was divided by -a public highway, and the land on each side of the highway was fenced. The railway was constructed through both inclosures, but cattle-guards were not constructed either at the outside lines of the farm, or at the lines between the inclosures and the highway, until about one year after defendant commenced to operate the road. Plaintiff brought this action to recover damages on account of defendant’s failure to construct and maintain cattle-guards at those points during the winter of 1882 and 1883. He alleges in his petition that, when the railroad was constructed, gaps were made in the fences inclosing the land, and that, owing to defendant’s failure to close said gaps with cattle-guards, the land was left open to the incursions of trespassing stock, and he was not able to keep his own cattle thereon, and in consequence thereof he lost the use of the land during the time named; and 'that a portion of the land was covered with heavy grass, and another portion was covered with corn-stalks, which would have been valuable for winter pasturage if he had been able to keep his cattle upon it. There was a verdict and judgment for plaintiff, and defendant appeals.</p>

Mandamus to compel the officers of a district township to levy a tax to be expended in building a school-house in a suhdistrict, and to maintain an additional school in a village situated in the subdistrict. There was a judgment requiring the tax to he levied. Both parties appeal.

Appeal from Polls Circuit Court. Action on a supersedeas or appeal bond. Judgment was rendered for the plaintiff, and the defendants appeal.

Action for damages alleged to have been sustained through the negligence of the city engineer of the defendant city. The defendant demurred to the plaintiff’s petition, and the demurrer was sustained. The plaintiff elected to stand upon his petition, and judgment was rendered against him for costs. He appeals.

On the twentieth day of August, 1884, the defendant was convicted, before a j ustice of the peace, under an information which charged him with the crime of selling whisky, alcohol, and mixed liquors called “ Dandelion Bitters, ” in violation of law. A judgment of a fine was rendered, and the defendant appealed to the district court. A trial was there had, which resulted in a .verdict against the defendant, and a judgment on the verdict, and he now appeals to this court.

Action in equity to quiet in plaintiff the title to eighty acres of land. The petition alleges that plaintiff is the absolute owner of the land, and that defendant makes some claim thereto adverse to plaintiff. The answer denies that plaintiff is the owner of the property, and sets up title thereto in defendant under a tax deed executed by the treasurer of Franklin county; and in a cross-petition defendant asked that his title under the tax deed be quieted.

Indictment for breaking and entering a car belonging to a railway company, with intent to steal property. Trial by jury, and, under the direction of the court, the jury found the defendant not guilty, and judgment was accordingly rendered. The state appeals.

The defendant was indicted for the crime of an assault with an attempt to commit rape. The jury returned a verdict of guilty, and judgment was rendered upon the verdict. The defendant appeals.-

Dependant and one Phinley Beet were together indicted for an assault with intent to rob, and, upon a separate trial, defendant was convicted, and sentenced to the penitentiary for five years. ITe now appeals to this court.

Plaintiff filed two promissory notes executed by defendant’s intestate as a claim against tbe estate of which she is administratrix.

This is an • action for the recovery of damages for an alleged malicious prosecution. The case has .once before been in- this court. See 63 Iowa, 529. On that appeal the judgment in favor of plaintiff was reversed, and the cause was remanded. A second trial resulted in a verdict and judgment for plaintiff. Defendants appeal.

Action to recover damages accruing to the estate of which plaintiff is administrator, by reason bf injuries received by the intestate through the negligence of defendant’s employes, while a passenger upon a train upon defendant’s road. There was a judgment upon a verdict for plaintiff. Defendant appeals.

<p>Certiorari. Tbe facts are sufficiently stated in the opinion.</p>

<p> Appeal from, Palo Alto Circuit Court. </p> <p>Action in equity. Judgmeut for the defendants, plaintiff appeals.</p>

J. 0. Guyer made a general assignment of bis property, for the benefit of bis creditors, to 0. Mosher. The assignee filed a report in the court below, showing a list of creditors who had filed their claims, with a statement pertaining thereto. In another list appeared the claims of creditors secured by mortgage. In this list appeared a mortgage given to Gr. IT. Atwell upon a stock of goods covered by the mortgage.

Puaintiee brought this action to recover the value of certain personal property which he alleges defendant unlawfully and wrongfully carried away and converted, and the cost and expense of carrying back to his farm certain other property which defendant removed therefrom.

Action in equity to cancel a deed and quiet title to a certain town lot in Toledo, Iowa, and to cancel a mortgage upon the same. There was a decree for the plaintiff in respect to the title and mortgage, but against him for the payment of certain money. The defendant G. L. Bailey, administrator, appeals.

The defendants are husband and wife,-and this action was brought to subject certain real estate which was conveyed to Mrs. Wegstein, to the payment of a judgment recovered by the plaintiff against her husband, Henry Wegstein. There was a judgment for the defendants, and the plaintiff appeals.

<p>1. Intoxicating Liquors: injunction: contempt: fine: imprisonment: release on schedule of PROPERTY. Where one has been fined for violating an 'injunction issued under the prohibitory liquor law, he may, upon default in payiug the fine, be imprisoned, under the general provision of § 4509 of the Code; and, under § 12, chap. 143, Laws of 1884, such person cannot avail himself of the benefits of 5j 4611 of the Code, which permits a poor person, after having been imprisoned thirty days for failure to pay afine in a criminal case, tobe released upon giving his note for the amount of the fine, together with a written schedule of his property.</p>

Action in chancery to sef^aside a sheriff’s sale and deed of certain real estate. There was a decree granting the relief prayed for in the petition. Defendants appeal.

The defendants Mary M. Morris and Samuel L. Humplireys were partners, doing business in the city of Des Moines. They were indebted to defendants M. N. Baker, L. H. Jones and I. J. Harrod, and defendant R. M. Briscoe was surety on a note given by them to a bank. On the twenty-seventh day of June, 1881, they executed to Baker, Jones and Harrod chattel mortgages to secure the debts they were owing them severally. These mortgagés covered their entire stock of merchandise.

<p>1. School Districts: taxation: limitation: payment op bonds op independent districts. Section 1807 of the Code, providing that the electors of an independent school district shall not vote a tax exceeding ten mills on the dollar for school house purposes, applies only to districts in which no bonded debt has been created. Under § 1823 of the Code, there is no such limitation where a larger tax is required to meet the interest on valid outstanding bonds issued under that and the two preceding sections, and chapter 132, Laws of 1880.</p> <p>2.--: INVALID BONDS OP: ACTION TO COLLECT: INTERVENTION OP tax-payer. In an action to compel a board of supervisors to levy a tax upon a school district to pay the interest on the bonds thereof, where the defendants refused to set up the defense that the bonds were void, because they were issued when the district was indebted beyond the constitutional limit, held that a tax-payer of the district was entitled to intervene and plead such defense.</p>

Action in equity to quiet in plaintiffs tlie title to certain real estate. The parties, plaintiffs and defendants, are the children and heirs at law of Daniel M. Briggs, who died testate at Oneida county, in the state of New York, on the twenty-second day of January, 1883. His will was executed on the eighteenth day of November, 1876, and it has been admitted to probate in the state of New York, and also in this state.

Action to recover for services and meals furnished nurses and others in attendance on an employe of the defendant, who was injured in an accident on the defendant’s road, and for ties furnished and delivered. Trial by jury. Judgment for plaintiff, and the defendant appeals.

An information was filed against the defendants before a justice of the peace, in which they were accused of the crime of selling intoxicating liquors, contrary to law. There were twenty counts in the information, each count charging a separate offense. The defendants were convicted on thirteen counts, and judgment was entered against them, imposing a fine upon each count on which they were convicted. From that judgment they appealed to the district court.

This was an action upon a covenant of warranty. The defendant demurred to the plaintiff’s petition. The court sustained the demurrer; and, the plaintiff electing to stand upon his petition, judgment was rendered against him for costs. He appeals. The opinion states the facts.

The plaintiff, Elizabeth Ford, brings this action as administratrix of the estate of her late husband, Thomas Ford, who was killed by being run over by one of the defendant’s cars. The plaintiff avers that the intestate’s death was caused by 'the negligence of the company, and without his negligence contributing thereto. 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 to subject certain real estate, the title to which is in defendant, to sale for the satisfaction of a judgment obtained by plaintiff’s testate against Eli Devore. Prior to the year 1878 the said Eli Devore resided in the state of Ohio, and while residing there he executed the promissory note on which plaintiff’s judgment was obtained.

<p>1. Husband and Wife: abandonment by husband: support of child by wife: recovery from iiusband. Where a husband without cause abandons his wife and child, and the wife alone supports the child, she cannot recover therefor in an action against the husband, since, under the statutes of this state, (Code, § 2214,) the support of children is charged upon their parents j lintly and severally.</p>

Action to foreclose a mortgage. Certain junior lien holders, as the plaintiff claimed, were made defendants. The court found and determined that plaintiff’s mortgage was the junior lien, and it appeals.

This is an agreed case. The relief sought by plaintiffs is a decree declaring that the penalties and interest upon a five per cent railroad tax be canceled and set aside. By the decree of the court below it is held that a part of the penalties cannot be collected. Both parties appeal. The defendants first perfected their appeal, and are therefore designated as appellants.

A/ppeal from Polk Giroibit Court. Action in equity to set aside a judgment and for other relief. There was a decree for the plaintiff. The defendant Gibbs appeals.

Action to establish a mechanic’s lien. The plaintiffs’ show by tlieir petition, tliat, under a contract with the defendants Clifton & Bishop, they furnished material and performed labor in painting a church building, which they aver belonged to the White Oak U. P. Church. By “U. P. Church” we presume that they mean “United Presbyterian Church,” as we find it so designated in some of the documents attached as exhibits. Clifton & Bishop made no defense.

Plaintiff brought an action on a policy of insurance against loss and damage by fire. The property insured was a one-story frame warehouse, and a stock of grain-cleaning and mill-wriglit machinery therein. The amount of the insurance on the building was $25, and on the machinery it was $975. The policy contained a provision that the loss, if any, on the machinery was payable to George IT. Lane, mortgagee, as his interest might appear.

Plaintiff delivered a car-load of hogs to defendant at Drakeville, in this state, for transportation to the Union stock-yards at Chicago. A passenger train on defendant’s road was thrown from the track near Ottawa, Illinois, and the obstruction caused by the accident delayed the train on which the plaintiff’s hogs were shipped for about twelve hours.

The defendant caused a sheriff’s jury to be impaneled for the puipose of assessing the damages sustained by the plaintiff for the right of way over real estate owned by him. From the assessment the plaintiff appealed to the circuit court', and the defendant filed a motion to dismiss the appeal on the grounds that the appeal was not taken in time, and that the notice thereof was not served upon the agent of appellant.

The plaintiff, Isopliena Roberts, brings this action to recover for an injury alleged to have been sustained by tbe wrongful acts of the defendant in preparing for and in deliving to her a false abstract of title to land owned by her, whereby she was misled in respect to the time within which the land could be redeemed from an execution sale, and was induced to defer redemption until it was too late to redeem There was a trial to a jury, and a peremptory instruction was…

Afjpeal from Buchanan Circuit Court. This is a proceeding in the circuit court, sitting as a court of probate, for the admeasurement of the dower of plaintiff in certain lands. One of the heirs of plaintiff’s deceased husband, who is named as a devisee in his will, and is' a defendant to the action, demurred to the petition. The demurrer was overruled. The defendants appeal.

Appeal from Polk Circuit Court. Action in equity to set aside a tax deed and to redeem. Decree for the plaintiff, and the defendant appeals.

Action upon a promissory note. There was a trial before a jury, and verdict and judgment were rendered for tbe plaintiffs. The defendant Wagner appeals.

Plaintiff is a corporation, and it brought this action on an alleged contract by defendant to take and pay for fifteen shares of its capital stock. The verdict and judgment were for defendant. Plaintiff appeals.

Action for a personal injury. There was a trial by jury. Aftér the plaintiff introduced his evidence, the defendant moved the court to direct a verdict for the defendant; The motion was sustained, and the plaintiff appeals.

Action at law upon a written contract. A demurrer to the petition was sustained, and, plaintiff standing upon his petition, judgment was entered for defendant. Plaintiff appeals.

<p> Appeal from Diohinson District Court. </p> <p>These causes involve the same questions, and may be disposed of in one opinion. They are equitable actions, and the relief demanded in each cause is the setting aside of a judgment of the circuit court of Dickinson county, by which the title to a tract of land is quieted in defendant; also the cancellation of a tax deed to said land, and the establishment of plaintiff’s right to redeem the same from tax sale. The circuit court granted the relief demanded. Defendant appeals.</p>

<p>1. Surety: on note for money to buy land: agreement for mortgage: SALE OF LAND BY PRINCIPAL: SUNDAY CONTRACT. H. became surety for T. on a note given for money borrowed to buy the land in question, and be'was to have security for his liability by a mortgage on the land. The mortgage, however, was never made, but T. gave his note to H., with M. as surety, for the amount of H.’s liability, and this was accepted in lieu of the mortgage. Afterwards T. sold the land to M., and H. was obliged to pay the note which he had signed with T., and in this action he seeks to recover on the note given him by T. and M., and to have the judgment decreed to be a lien on the land. But the note sued on was executed on Sunday, as was also the agreement to accept it in lieu of the mortgage, and, therefore, no recovery could be had on the note, and the original agreement to give the mortgage remained unaffected. But, as there was no evidence to show that M. purchased the land with knowledge of T.’s agreement to execute the mortgage, nor to show that M. was to pay T.'s debt to H. as a part of the purchase price, held that judgment was properly rendered against T. for the money paid for him by H. as surety, but that it was error to render judgment against M., and to make the judgment a lien on the land.</p>

<p> Appeal from Buchanan District Gov/rt. </p> <p>The defendant was indicted for the crime of murder in the"~|: first degree, and was found guilty of manslaughter, aud sentenced to imprisonment for fifteen months. He appeals to this court.</p>

<p>1. Judgment: limited by prayer for relief. Relief which is not specially prayed for, or is not within the contemplation of a general prayer cannot be granted by a decree.</p> <p>2. -: amount due not determined. A judgment for the recovery of money upon the report of a referee cannot be sustained where the referee has failed to find the amount of the debt for which it is rendered.</p> <p>3.--default: what admitted by. A default admits only the matters well pleaded, and entitles plaintiff to recover thereon only such relief as'is demanded in the petition.</p> <p>4. Partnership: settlement in equity: judgment for balance where property unsold. In the settlement of a partnership in equity, there ought ordinarily to be a sale of the firm property, and an accounting for the proceeds, before there is a judgment for any difference due one partner from the other. But where no objection is made to a judgment without such sale, error will not be presumed on appeal, but rather an understanding that one of the parties should retain the property.</p> <p>5. Practice: hearing in vacation: change of place: waiver. Where the parties agreedto argue and submit a cause in vacatiou at M., but it was argued and submitted at F., and counsel for both sides were present at the argument without objection as to the place, held that the change must be presumed to have been waived.</p> <p>6. -: AGREEMENT FOR DECISION IN VACATION; PLACE OF DECISION. An agreement for a decision’in vacation implies that the judge will decide at his chambers, or wherever he may be when he finally consid- ■ ers the case.</p> <p>7. Practice on Appeal: presumption in favor of trial court. Where the record showed that the referee made two reports, but failed to show that, after the first one, the cause had been sent back to him, but the court below acted on the two reports, and overruled objections based on the ground that the case had not been sent back to the referee, held that the case might have been sent back without that fact appearing of record; and this court will presume that it was, in support of the decision of the court below.</p>

This is an action by which the plaintiff seeks to charge the defendant as a garnishee, upon the alleged ground that he is a creditor of Stephen Williams, against whom plaintiff holds a judgment for some $2,000 and interest. There was a trial by the court without a j ury, and j udgment was rendered for the defendant. Plaintiff appeals.

The defendant was convicted of the crime of burglary, and sentenced to a term of imprisonment in the penitentiary, and from that judgment he appeals to this court.

The defendant Tullís was county auditor, and this action is brought on his official bond. Thei’e was a demurrer to certain counts in the petition, which was sustained, and the eighth count was struck out on motion. The plaintiff appeals.

Action in equity to restrain the defendants from prosecuting an action at law in the courts of Minnesota. The relief asked by the plaintiffs was granted, and the defendants

This action was brought by John Gresham to enforce the collection of a judgment by execution against certain real estate, of which John Pearson, deceased, died seized. The administratrix of Pearson, his heirs, and certain other persons who claim to be owners of the property by purchase at administrator’s sale, were made defendants.

Action in equity for an accounting in respect to certain alleged trust property. O. B. Jones intervened. There was a decree for the defendant. The plaintiff and intervenor appealed.

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

Mandamus to compel defendant, Traut, wbo is tbe treasurer of the city of Dubuque, to execute a tax deed for a certain lot sold for delinquent city taxes. A demurrer by defendant to plaintiff’s reply to bis answer was sustained; and, plaintiff standing on his pleading, judgment was entered for defendant. Plaintiff appeals.

The plaintiff is the owner of certain real estate on which is situate a windmill and other machinery, and the petition states that the defendant entered on said premises, and willfully and tortiously “did trespass on said premises, *• * * and did, by his own willful act, break, damage and wholly destroy the said windmill and machinery,” whereby the plaintiff was greatly damaged.

Appeal fronn Madison Gvrouit Court. Action in chancery to subject certain real estate, the title whereof is in a wife, to a judgment against her husband. The plaintiff’s petition was dismissed by the circuit court, after trial upon the merits. They now appeal to this court.

Action in chancery to foreclose a mortgage. Upon a trial on the merits there was a decree for defendant. Plaintiff appeals.

Action upon a promissory note and mortgage. The defendants pleaded payment. There was a decree for the plaintiif. The defendants appeal.

Action upon an account for lumber, and for the foreclosure of a mechanic’s lien. There was a judgment and decree for the plaintiff'. Defendants appeal.