Volume 74 — Iowa Reports

— Hon. A. ■ B. Thornell, Judge. Action upon a policy of insurance to recover the value of the property insured, which was destroyed by fire. There was a judgment on a verdict for plaintiff. Defendant appeals.

■ Appeal from Pottawattamie District Qourt. — Hon. George Carson, Judge. Action for malicious prosecution. Trial by jury, verdict for plaintiff, judgment, and defendant appeals.

Defendant was fined before a justice of the peace upon an information charging that he did “unlawfully sell and give away” intoxicating liquors to a person named in the information. Upon appeal to the district court he was again convicted. He now appeals to this court.

— Hon. L. Q-. Kinne, Judge. Action to recover for injuries resulting from a fall while walking upon a sidewalk of a street, caused by the negligence of defendant in permitting it to be in an unsafe and dangerous condition. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Appeals from Marshall District JJourt. — -Hon. S. M. Weaver, Judge. These are actions at law, in which the plaintiffs claim to be the owners of certain railroad aid taxes which they allege the treasurer of the defendant unlawfully paid to the defendant. There were trials to the court, and judgments for the plaintiffs. Defendant appeals.

— Hon. C. T Grandee, Judge. Action in equity to enjoin the execution of a sheriff’s deed. The facts are stated in.the opinion. The judgment was for plaintiff. Defendants appeal.

— IIon A. B. Tiiornell, Judge. Action on account for building materials and for the foreclosure of a mechanic’s lien. The materials were furnished under a contract between plaintiffs and defendant Mary Staub, and were used in the construction of a sidewalk on the street in front of a lot owned by her in the town of Harlan. Defendant Lewis Gingery is a subsequent.purchaser of the lot.

— Hon. Geo. H. Cake, Judge. Action to recover for work and labor performed by the plaintiff for the defendant. Trial by jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. P. Conner, Judge. This is an action on a contract issued by defendant to T. Harl, now deceased, brought to recover nineteen hundred and ninety-five dollars as the alleged value of the property insured, and destroyed by fire after the death of T. Harl.

— IIon. L. Gr. Kinne, Judge. Action to recover specific personal property.

— Hon. Gr. W. | Burdick, Judge. The plaintiff, who is an attorney-at-law, seeks by this action to recover for legal services rendered in an action.for divorce brought by the defendant against his wife, and in which action the legal services in question were rendered in behalf of the wife. There was a trial by jury, and a verdict and judgment for the plaintiff-The defendant appeals.

— Hon. A. B. Thornell, Judge. Action for the euforcement of a mechanic’s lien. The defendants, McGregor Bros., were primarily liable for the price of the materials, and the district court entered judgment against them for the amount due on the account. The other defendant is a subsequent purchaser of the property sought to be charged with the lien. The district court refused to enforce the lien, and plaintiffs appeal.

- — Hon. H. C. Henderson, Judge. The defendant was indicted by the grand jury of Hardin county for the crime of embezzlement. He pleaded not guilty to the charge, and procured a change of place of trial to Franklin county. There he was tried, convicted and adjudged to pay a fine of §6,154.88, and to be imprisoned in the penitentiary at Anamosa for the term of four years. From this judgment defendant appeals.

Tnis is an action in chancery by which, the plaintiff seeks to compel the defendant, Rufus Conable, to convey to her certain real estate in pursuance of an alleged oral contract made by said Conable with the plaintiff.

— Hon. A. J. Leeeingwell, Judge. The plaintiff seeks to recover a tax alleged to kave been paid by Ms assignor, under, protest. Tke defendant filed an answer in six divisions, tke last of wkich contained a counter-claim for tke amount of tke tax in controversy, made under sections 478 and 479 of tke Code. Plaintiff demurred to tke answer. Tke demurrer was sustained as to tke first five divisions, and overruled as to tke sixtk.

— Hon. John W. Harvey, Judge. This is an action in equity by which the plaintiff seeks to set aside and cancel a conveyance of a farm made by him to the defendant, A. J. Barber, and for damages, upon the ground that he was induced by certain fraudulent representations to make said conveyance, and to pay to said Barber a certain amount of money, and to convey and deliver to him certain other property. There was a trial by the court, and a decree for the plaintiff.

<p>1. Criminal Practice : setting day for trial : discretion of COURT. The time during the term, at which a defendant shall be put upon his trial rests wholly upon the sound discretion of the judge, and unless an abuse of such discretion, with prejudice to the defendant, be shown, as is not done in this case, this court will not interfere.</p> <p>2. -: order of evidence to rebut alibi. Where defendant had sought to establish an alibi, it was proper to admit, in rebuttal, testimony tending to show defendant’s presence at the time and place of the crime, in support of evidence given in chief on that point.</p> <p>3.--: instruction as to use of evidence. Where counsel for defendant offered certain evidence for a certain stated purpose, but the court excluded it for that purpose, but admitted it for another purpose, it was not error to instruct the jury to consider it only for the purpose for which it was admitted.</p> <p>4. -: ALIBI : EVIDENCE : INSTRUCTIONS NOT CONTRADICTORY, The court instructed that the alibi relied on as a defense must be established, if at all, by a preponderance of the evidence ; also, that if upon the whole evidence, including that tending to establish the alibi, they entertained a reasonable doubt, they should acquit. Held that these instructions were not contradictory or misleading, but that they were harmonious and correct.</p> <p>5. -: -: INSTRUCTIONS AS TO evidence. The court instructed as follows : “The defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused was at another place, so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed, so as to have participated in the commission thereof ; ” and “ If the proof of alibi fails to show as to either defendant on trial, you will not consider it as to him ; but if it does show as to either, you will give it full consideration as to the defendant of whom it so ■ shows.” Held that the instructions rightly stated the law, and • were not subject to the objection that they directed the jury not to consider the evidence pertaining to the alibi.</p>

<p>Appeal from, Polk District Court. — Hon. Josiah Given, Judge.</p> <p>The defendants were indicted and convicted oí robbery. They now appeal to this court.</p>

— Hon. G-eobge Causón, Judge. This is an action at law, and was brought in the district court at Avoca, in Pottawattamie county. The petition contains five counts, three of which were upon promissory notes made payable, at Avoca, to the order of J. W. Davis, and by him transferred to the plaintiff. The other two counts were for the wrongful conversion of certain property and money of the plaintiff by the defendants.

This is an action in equity to recover a balance alleged to be due the plaintiff for work done by him in the construction of a railroad, and to establish and foreclose a mechanic’s lien on the property. The circuit court entered judgment dismissing the petition, and plaintiff appeals.

— Hon. Geo. II. Carr, Judge. This action originated before a justice of tlie peace, wkere tliere was a judgment in favor of the defendant, ' upon a counter-claim. On the plaintiff’s application, the judgment was set aside. The defendant .sued out a writ of error from the district court, which, upon a hearing, was sustained. The court entered a judgment affirming the original judgment entered by the justice of the peace. . Plaintiff appeals.

— Hon. E. L. Burton, Judge. This action is to recover certain personal property, or the value thereof, to which plaintiff claims she is entitled as the widow of het deceased husband, Solomon McReynolds, who owned it at his death. The cause was transferred to the chancery docket, and upon a trial as an equity action a decree was entered therein granting the relief prayed for by plaintiff. Defendants appeal.

<p> Appeal from Page District Gourt. </p> <p>This is an action for the admeasurement of dower, or the setting apart of the distributive share of the husband in the real estate of his deceased wife. There was a petition, answer and reply. A demurrer to the reply was overruled, and defendant appeals.</p>

— Hon. G-eorge W. Wakefield, Judge. Plaintiff is the owner of certain real estate in the town of Rock Rapids. The town was incorporated in November, 1885. The real estate in the town was .assessed for taxation in that year by the assessor of the township in which the town is situated ; plaintiff’s property being assessed at eight hundred and forty dollars.

<p>Appeal from Henry Circuit Court. — Hon. W. J. Jeffeies, Judge.</p> <p>Plaintiff seeks to recover damages for the death of a mare, alleged to have been caused by negligence and want of skill on the part of defendants. The case was tried to a jury, and a judgment rendered in favor of plaintiff, on the verdict. The defendants appeal.</p>

— Hour. W. F. Conrad, Judge. Action to recover for goods sold and delivered. Defendants admit the claim of plaintiff, and plead counter-claims. Verdict and judgment for defendants. The plaintiff appeals,

— Hon. A. J. Leeeingwell, Judge. On the eighth, day of January, 1887, the plaintiff commenced its action against defendant. A writ of attachment was issued, and on the ninth and tenth days of January, 1887, the sheriff levied the same upon a large amount of property, including that in controversy, and garnished the intervenor.

Appeal .from Adams District Court. — Hon. R. C. Henry, Judge. Action in equity. Certain real estate was sold for delinquent taxes, and this action was brought to redeem from such sale. The relief asked by the plaintiffs was granted, and the defendants appeal.

— Hon. M. Kavanagh, Judge. Action to recover for injuries sustained by a fall caused by the defective and unsafe condition of the sidewalk of a street in the defendant city, upon which plaintiff was walking. There was a judgment upon a verdict for plaintiff. Defendant appeals.

— .Hon. Josiah Given, Judge. Action to recover damages for an injury received by tlie plaintiff, caused by the accumulation of ice and snow on the sidewalk in the city. Trial by jury. Verdict and judgment for the defendant. The plaintiff appeals.

— Hon. A. B Tho knell. Judge. Plaintiee seeks to recover of defendants one hundred dollars alleged to have been paid to them by •mistake, and twenty-five dollars damages for an alleged breach of contract to furnish certain patents to lands. Defendants deny liability, and A. J. Leffingwell asks judgment on counter-claims for $56.41.

— Hon. R. C. Henry, Judge. Action in chancery, to enjoin the sale of a railroad scale upon a chattel mortgage to defendant. After a trial on the merits, a decree was rendered granting the ' relief prayed for by plaintiffs. Defendant appeals.

Appeal - from Benton District Court. — Hon. L. G. Kinne, Judge. Defendant was indicted and convicted of the offense of maintaining a nuisance by keeping a building, called a drugstore, for the sale of intoxicating liquors in violation of the statutes. He now appeals to this court.

— IIon. Charles II. Pjielps, Judge.' This is a proceeding instituted by plaintiff, to correct the assessment made upon his personal property for taxation. There was a decision upon an appeal to the circuit court adverse to him. He now appeals to this court.

The plaintiffs are the owners of certain lots fronting on Water or Front street, in the city of Des Moines, on which is situated a building used by them for business purposes, and claim that they have been injured a.nd have sustained great damages by the wrongful acts of the defendant in constructing an engine-house, turn-table and railroad tracks upon public ground, over which travel from the south reached plaintiffs’ place of business.

— Hon. J. M. Casey, Judge. The plaintiff is the owner of a farm of two hundred and twenty acres. The defendant constructed a rail1 road over said farm several years ago. The plaintiff instituted proceedings to have his damages assessed under the statute. A commission or sheriff ’ s jury was impaneled, and the damages were fixed at three thousand dollars.

This is an action at law by which, the plaintiff seeks to recover damages of ' the defendant upon the ground that a conductor on one of its trains, upon which plaintiff was a passenger, wrongfully, maliciously and forcibly ejected the plaintiff from said train. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. D. Ryan, Judge. Dependant was convicted of the crime of selling intoxicating liquors contrary to the statute, and he now appeals to this court.

<p>Appeal from Blade Hawlc District Court. — Hon. C. F. Couch, Judge.</p> <p>Indictment for larceny from the person of another. Trial by jury, verdict of guilty, judgment, and the defendant appeals.</p>

<p>Appeal: LESS THAN one hundred dollars : CONTENTS of certificate. Where an. appeal involves less than one hundred dollars, it is necessary, in order to give this court jurisdiction, for the trial judge to state that the questions of law certified by him are involved in the cause. (Compare Van Sickle v. Downs, 72 Iowa, 624.)</p>

<p>Appeal from Pottawattamie District Court. — Hon. George Carson, Judge.</p> <p>Action for the recovery of specific personal property. Trial by the court without the intervention of a jury. Judgment for defendant. -Plaintiff appeals. •</p>

— ITon. J. P. Conner, Judge. This is an action in equity by which the plaintiffs, , who are creditors of the defendant R. R. Woodring, seek to subject certain goods and chattels to the payment of their claims, upon the ground that said defendant mortgaged and sold said goods to the other defendants in such a way as to constitute a general assignment, with preferences to the defendant creditors.

On Certiorari to Hon. C. T. Granger, Judge of the Thirteenth Judicial District. , On plaintiff’s petition a writ of certiorari was allowed by one of the judges of this court to review an order of the defendant, who is a judge of the district court in the Thirteenth judicial district, imposing a fine upon plaintiff, and committing her to jail for contempt.

— Hon. J. Kelley Johnson, Judge. The plaintiff was a brakeman in the employ of the defendant on a freight train, and was injured while attempting to make a coupling of a moving train to a stationary freight car. Trial by jury, verdict for plaintiff, and judgment. The defendant appeals.

— Hon. John B. Cleland, Judge. Proceeding to recover for permanent improve ments on real estate, under the statute giving relief to occupying claimants. The court, on the ground that the defendant had failed to show color of title, directed the jury to find for the plaintiff, and defendant appeals.

— Hon. James D. Gteeen, Judge. This is an action in chancery, by which the plaintiff seeks to set aside certain conveyances of real estate made to the defendants, who are his children. There was a trial in the district court upon the merits, and a decree for the plaintiff. Defendants appeal.

— Hon. C. M. Waterman, Judge. Action by a wife against the keeper of a saloon and the owners of the property wherein it was kept, to recover for sale of intoxicating liquors to her husband, causing his intoxication. While in that condition he fell in the street, and was so frozen that the amputation of one of his legs became necessary. A demurrer to the petition by defendants, who are the owners of the property in which the saloon was kept, was sustained. Plaintiff appeals.

— Hon. C. M. Waterman, Judge. Plaintiff seeks to recover for injury to lier means of support, caused by the alleged sale of intoxicating liquors to her husband contrary to law. The action was brought against one Jordan, who is charged with having sold the liquor, and against Patrick O’Connor, as the owner of the premises on which the sale was made. 0 ’Connor demurred to the petition. His demurrer was sustained, and judgment rendered in his favor for costs. Plaintiff appeals.

■' Appeal from Lyon District Court. — Hon. G-eo. W. Wakefield, Judge. Action to recover damages caused by an alleged nuisance. Tbe case was tried to a jury, and verdict and judgment rendered for plaintiff. Defendants appeal.

<p>1. Adverse Possession: what is not. Possession by plaintiff of a disputed strip of land taken and held for fifteen years in the belief that it was a part of the quarter-section owned by him, and with no intention of claiming any land beyond his own quai’ter-section, was not adverse possession, so as to give him title under the statute of limitations to any land not embraced in his quarter-section. (Compare Grube v. Wells, 34 Iowa, 148, and Skinner v. Crawford, 54 Iowa, 119.)</p> <p>2. Boundaries : evidence as to corners : new survey. Positive and uncontradicted testimony of competent witnesses as to the location of original government corners, as seen by them, will prevail over the location of such comers as found by a re-survey.</p>

— Hon. Walter I. Hayes, Judge. Action to recover damages for an assault and battery. Trial by jury, verdict and judgment for the plaintiff against two of the defendants, and they appeal. There was a verdict for the other defendant.

The proper assessor of the city of Des Moines assessed plaintiff for the year 1885 on moneys and credits in the sum of two hundred and forty-six thousand dollars, and, on appeal by the plaintiff, the board of equalization reduced this assessment to fifty thousand dollars. From this action both appeal. The plaintiff, first perfecting its appeal, is designated as appellant.

<p>1. Appeal; finding of court : evidence to support. The finding of the trial court, in an ordinary action, upon a question of fact has the force and effect of the verdict of a jury, and cannot be set aside on appeal if there is evidence upon which, fairly considered, it can be sustained.</p> <p>2. Guardian: report of : conclusiveness. The report of a guardian, when approved by the court, must be regarded as at least prima facie correct, casting on him who assails it the burden of proof to show error. (See Latham v. Myers, 57 Iowa, 519: Brewer v. Stoddard, 49 Iowa, 279.</p> <p>8. -: reports assailed : attorney fee for defense. An allowance made in this case to tire guardian of an insane ward, for an attorney fee in defending her reports when assailed as being fraudulent and unjust, is approved.</p>

— Hon. George; W. Wakefield, Judge. This is an action to recover damages for a personal injury which the plaintiff sustained by a collision between a train of cars of appellant and a wagon of the-plaintiff at the crossing of Dace and Howard streets, in Sioux City. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. D. D. Miracle, Judge. Defendant was convicted for the murder of Enoch Johnson and sentenced to imprisonment for life in the penitentiary. He now appeals to this court. v

— Hon. D. Ryan, Judge. Action to recover under the statute double the value of two colts killed by a train operated upon defendant’s railroad, at a place where it had a right to • fence its track. There was a judgment on a verdict for plaintiff:. Defendant appeals.

— How. D. D_ Miracle, Judge. The plaintiffs are attorneys at law, and this is an action upon an account for legal services. There was a trial by jury, and a verdict and judgment for plaintiffs. Defendant appeals.

—■ I-Ion. J. H. Macombeb, Judge. Action on a policy of insurance against damages to work-horses, caused by high winds or lightning.' Trial by jury. Yerdict and judgment for plaintiff. Defendant appeals.

— ITon. S. M. Weaver, Judge. Action for a divorce. Defendant, in a cross-petition, also asked for a divorce. Both petition and cross-petition were dismissed by the district court, and both parties appealed. The decree dismissing the plaintiff’s petition was reversed, and the cause remanded for a decree granting plaintiff a divorce. See 67 Iowa, 381.

. Appeal from Polk District Court. — Hon. W. P. Conrad, Judge. Action in equity. The district court rendered a decree in favor of plaintiff. The defendant, the city of Des Moines, appeals.

— lion. M. Kavanagit, Jit., Judge. This is an action to recover damages for a personal injury which, the plaintiff avers she received by a fall upon a sidewalk in the defendant city. There was a trial by jury, which resulted, in a verdict and judgment for plaintiff for one thousand dollars. Defendant appeals.

— Hon. Geo. H. Carr, Judge. Action to set aside certain tax deeds, and deiermine tbe ownership of real estate. Judgment for ■ defendants, and plaintiff appeals.

— Hon. W. • F. Conrad, Judge. Action in equity to quiet title to certain real estate. There was a decree for the defendants, and plaintiff appeals. .

This is an appeal by the plaintiff from an order setting aside a judgment against the garnishee, and granting a new trial.

— Hon. George IT. Carr, Judge. The plaintiff brought an action against the defendant before a justice of the peace on a policy of insurance. There was a trial by jury, verdict for plaintiff, and judgment rendered thereon. The defendant removed the case to the district court by a writ of error. The court dismissed the plaintiff’s action, and rendered judgment against him for costs, and the plaintiff appeals.

— Hon. Gíeokge W. Wakefield, Judge. Action on a policy of insurance against loss or dam-. age by fire. Trial to tlie court, judgment for the plaintiff, and defendant appeals.

— -Hon. J. W. Harvey, Judge. Action to recover of defendant tlie value of personal property taken and sold by Mm under process issued on a judgment in favor of the state of Iowa against R. II. Dillow. Trial to tlie court. Judgment for the defendant, and plaintiff appeals.

— Hon. James D. G-iffen, Judge. ■ Indictment for crime of nuisance. Verdict of guilty, and judgment against defendant for line and costs. He appeals.

— Hon. Gr. W. Wakeeield, Judge. Action to recover for money advanced by plaintiff in payment of taxes for defendant. The defendant pleaded a counter-claim. There was a judgment upon a verdict for defendant, from which he appeals.

<p>Appeal from Crawford District Cotort. — Hon. J. P. Conner, Judge.</p> <p>Action to recover for money loaned. There was a judgment on a verdict for defendant. Plaintiff appeals.</p>

— Host. J. H. Henderson, Judge. Action in equity to quiet the title to certain real estate. The judgment below was for plaintiff, and defendant appeals.

— Hon. John W. Harvey, Judge. Action for tlie recovery of double tbe value of a horse which plaintiff alleges was killed on defendant’s railroad at a point where it had the right to fence its track, but where it had neglected to fence the same. The cause was tried to the court without the intervention of a jury, and judgment was entered for plaintiff. Defendant appeals.

Action in equity to recover taxes under the same ■circumstances substantially as stated in Goodnow v. Moulton, 51 Iowa, 555. There was a decree for the plaintiff, and the defendants appeal.

The facts in this case are precisely like those in the preceding case, except as indicated in the opinion. The court rendered a decree in favor of the plaintiff, and the defendants appeal.

— Hon. C. F. Couch, Judge. Action on a bond given under the provisions of section 1538 of the Code, to procure a permit for the sale of intoxicating liquors. The case was tried by the court, and judgment entered, dismissing the case and taxing the costs to the county. Plaintiff.appeals.

— How. C. P. Looebourow, Judge. The defendant was indicted and convicted of maintaining a nuisance by keeping a place for the sale of intoxicating liquors in violation of law, and he appeals to this court.

<p>1. Unincorporated. Church.: trustee of land for use of : removal on petition of members. Three out. of several hundred members of an unincorporated church have no right to ask the removal of a trustee to whom property has been conveyed for the use of the church, especially where it is not shown that the property will be impaired or the rights of the beneficiaries imperiled.</p> <p>2. -: ---: right to rents. In such case the trustee is entitled to the rent of the trust property.</p> <p>3. Former Adjudication : facts constituting. Where a married woman brought an action against a trustee to set aside a trust deed, but the court decreed that the deed should stand, and that the trustee should pay her a certain sum in satisfaction of the claim of herself and husband in the land, held that the husband was thereby estopped from bringing a subsequent action against the trustee to set aside the deed.</p>

Appeals from Montgomery District Court. — Hon. Geo. Carson, Judge. Actions wherein plaintiffs pray for decrees construing a will. In each case they appeal.

Lewis, Judge. -Hon. C. H. The plaintiff presented a petition to th§ board of supervisors at the June, session, 1887, asking that the assessment of a railroad bridge across the Missouri river be reduced. The relief asked was refused, and the plaintiff appealed, and in the district court a sujjplementary petition was filed, asking the same relief.

— Hon. R. C. Henry, Judge. Action brought by Frank L. La Rue to enjoin the execution.of a tax deed, and to set aside the tax sale. Defendant King filed answer, by which he resists the granting of the relief asked, and asks affirmative relief. A demurrer to his answer was sustained. He elected to stand on his answer, and a decree for plaintiif was rendered, as prayed.

— TIon. W. R. Lewis, Judge. Action to recover attorney’s fees for appearing and prosecuting a person charged with the unlawful sale of intoxicating liquors. A demurrer to the petition was sustained, and judgment rendered against plaintiff for costs. Plaintiff appeals.

Action in equity to quiet title to a quarter-section of land in Sioux county, and for general equitable relief. Defendant Nellie Holt claims title under a tax deed, and defendant Milo D. Gibbs claims title under a deed from a grantor in plaintiff’s chain of title. The circuit court rendered a decree in, favor of plaintiff and against both defendants. The defendants appeal.

- — Hon. G-. W. Ruddick, Judge. Plaintiff alleges that she was married to defendant Maxfield Barber on the fourth day of November, 1881; “that he refuses to support, and has deserted her; that in consequence of his cruel treatment she has become an invalid; that she is sick, penniless, and unable to .support herself.

<p>1. Appeal: BILL OF exceptions : DIRECTING clerk to insert evidence : short-hand notes NOT translated . Evidence is not preserved for the purposes of an appeal by directing the clerk in a bill of exceptions to insert the evidence taken by the short-hand reporter and filed in the case, where the- short-hand notes so filed 'have not been translated and the translation filed in the case.</p> <p>2. ---- : PRACTICE : REVIEWING INSTRUCTIONS WITHOUT EVIDENCE. "Where instructions complained of are applicable to the issues raised by the pleadings, they may be reviewed in this court, even though the evidence is wanting ; for this court wil), in such case, presume that there was evidence warranting the instructions. (See McMillan v. Burlington & M. JR. By. Co,, 40 Iowa, 231.)</p> <p>3. Contract: parol to add warranty to writing. Where a written contract is full and complete, it is incompetent, in the absence of fraud, mistake, or the like, to vary it by evidence of a parol warranty not expressed in its terms. (See Mast v. Pearce, 58 Iowa, 579.) And it cannot be shown that it was part of the agreement that the whole of the contract was not to be reduced to writing.</p> <p>4. Instructions : judged by issues presented in charge. The correctness of an instruction must be determined by considering it in connection with the issues presented to the jury, and not with issues pleaded but not presented in the instructions.</p>

Webster District Court. — ITon. S. M. Weaver, Judge. Appeal from the decision of the district court in allowing plaintiff temporary alimony in an action brought by her to obtain a divorce from defendant.

Action to recover seventeen hundred and sixty-eight dollars alleged to have been paid in consequence of the fraud of defendants. A demurrer to the petition was sustained. Plaintiffs electing to stand upon their petition, the cause was dismissed by the court, at plaintiffs’ cost. Plaintiffs appeal.

— Hon. George IT. Carr, Judge. Action to recover damages for injury alleged to have been caused by slanders uttered by defendant. 'The case was tried to a jury, and a verdict and judgment rendered for plaintiff. Defendant appeals.

— Hon. Jas. D. CjTFFEN, Judge. Action to recover remainder of purchase price of one hundred and seven merino bucks. Defendants admit the purchase, and that the amount alleged to be due has not been paid, but deny indebtedness, by reason of alleged breaches of warranty in the sale of the bucks.

— Hon. .Tost a it Given, Judge. Action of mandamus. Trial by jury, and finding for plaintiff. A motion for a new trial was sustained and plaintiff appeals.

— Hon. Dell Stuart, Judge. Defendant Samuel Stewart was convicted in a justice’s court of a misdemeanor, and appealed from the judgment. To secure his appearance in the district court, he gave bond as required by section 4698 of the Code. He was tried at the March term, 1886, of the district court, found guilty, and adjudged to pay a fine and costs. At the October term, 1886, he was adjudged to be in default for failure to surrender himself in satisfaction of the judgment.

— Hon. Charles D. Leggett, Judge. Ad quod damnum proceedings to condemn lands to be used by the defendant as a turn-out or derailing track. The sheriff’s jury allowed the plaintiff one hundred and forty-five dollars. On appeal a judgment upon a verdict for plaintiff for 1632.50 was had. Defendant now appeals tó this court.

— Hon. A. J. Leffing-well, Judge. Plaintiff obtained a judgment by default against ■ defendant, which the district court on motion set aside, and the appeal is by plaintiff from that order.

— Hon. John L. Stevens, Judge. This is a proceeding involving the validity of an instrument in writing claimed to be the last will and testament of William Meeker, deceased. The plaintiffs, being four of his sons and one son-in-law, are the legatees and devisees under the alleged will,- and they presented it for probate. Two of them are named therein as executors.

Action in equity to quiet in plaintiff the title to eighty acres of land. The circuit court found that plaintiff was the owner of the undivided one-third of the land, and entered judgment quieting his title to that amount, and he appeals.

— IIon. Lot Thomas, Judge. On-the twenty-third of August, 1880, the Palo Alto circuit court rendered judgment in favor of plaintiff and against defendant B. Franklin for $142.78 damages, and $13.50 costs. On the eleventh day of October, 1886, A. B. Carter and A. D. Franklin were served with garnishment process by virtue of an execution issued on said judgment.

Appeals from Crestón Superior Court and from Union .District Court. — Hon. John W. Harvey, Judge'. The defendant was arrested upon an information filed in the superior court of Crestón, charging him with a violation of a city ordinance. By an agreement the hearing of the cause was continued until July 11, 1887, at which time the defendant appeared, and pleaded not guilty, and demanded a trial by jury.

— Hon. D. D. Mikacle, Judge. This is an ordinary action on account for work and labor performed, and goods and merchandise sold and delivered.

<p>Payment : application op : prior agreement. Plaintiff bought horses of S., and gave him for the purchase price two notes secured by mortgage on the horses. S. at once assigned the notes and mortgage to B. The next day plaintiff agreed in writing with B. to work for him, and B. agreed to apply his wages in payment of the mortgage debt. B. continued to hold the notes and mortgage until plaintiff had earned enough to cancel the debt, but, instead of applying his wages on the debt, he applied them on another account which he held against plaintiff,. and assigned the notes and mortgage to defendant, who seized the horses under the mortgage. Held, in an action to recover the horses, that B. was bound to apply the wages on the debt, and that the law would so' apply them, and that the debt was satisfied before the assignment to defendant.</p>

Appeals from Cass CirevAt Court. These cases involve similar questions of law and fact, and are considered together. They arise out of claims filed by plaintiffs with defendant as the administrator of Joseph Magarrell, deceased. These claims were submitted by the circuit court to a referee to inquire into and report upon their validity. The referee reported to the court the evidence and his findings of fact.

— Hon. John T. Stoneman, Judge. Action for the recovery of damages on account of the death of plaintiff ’ s intestate, who was killed while in defendant’s employ as a brakeman by the derailing of the train on which he was employed. There was a general verdict for plaintiff. The jury also returned certain special findings on which defendant moved for judgment, notwithstanding the general verdict, which motion was sustained by the superior court.

Action in equity to enjoin a nuisance caused by keeping a place for tbe sale and manufacture of intoxicating liquors as a beverage in a building situate on certain real estate wliicb is sufficiently described. The relief asked was granted, and the defendants appeal.

— Hon. George W. Wakefield, Judge. Tjiis is an action to recover damages for a personal injury sustained by tlie plaintiff: by reason of an alleged defect in one of the streets of Sioux City. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. J. H. Henderson, Judge. Action to recover an amount of money collected, as is alleged by defendant, for plaintiff’s intestate. There was a verdict and judgment for plaintiff. Defendant appeals.

Action to recover for false and fraudulent representations by defendant as to the quantity of land contained in a tract sold and conveyed to plaintiff. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Nathaniel French, Judge. George Ott made an assignment for the benefit of bis creditors on tbe twenty-seventh day of April, 1886, and on the same day his assignee qualified and gave notice of the assignment. The Conlee Lumber Company was a creditor of Ott, but failed to place its claim in the hands of the assignee until July 28, 1886.

— Hon. S. M. Weaver, Judge. Defendants were indicted for the crime of nuisance alleged to have been committed by unlawfully obstructing a public highway. They were found guilty and adjudged to pay the costs of suit and to remove the alleged obstruction within thirty days. Defendants appeal.

<p>Appeal from Benton District Court. — Hon. L. G-. Kinne, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. Josiah Given, Judge. Action on an account for work and labor performed. Answer: (1) in denial; (2) pleading payment; and (3) that there had been a settlement of the account, and the balance due thereon ascertained, and that the same was paid. Yerdict and judgment for plaintiff, and defendant appeals.

— Hon. J. H. Macomber, Judge. Action on a promissory note. Defense, failure of consideration and breach of warranty. The court instructed the jury to return a verdict for plaintiff. A verdict was so returned, and judgment rendered thereon in favor of plaintiff. Defendant appeals.

— Hots. D. J. Lenei-ian, Judge. • This is an action upon a certificate of insurance upon the life of one Mary Garretson. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. n. Preston, Judge. The petition states that the defendant negligently left a freight car standing in and upon a public highway running through the town of Peralta, on defendant’s railway, and that A. Bolton was passing along such highway, driving a team of two horses attached to a wagon ; that said car was so placed upon said highway that a large portion thereof was occupied by the same, and the free passage of the highway was obstructed by said car ; that said…

<p>1. Evidence: unauthenticated letter : error without prejudice. There is no prejudice, and therefore no reversible error, in admitting in evidence a letter not fully authenticated, when its only effect is to establish a fact already established by testimony not objected to.</p> <p>3. Fire Insurance: power op adjusting agent to waive conditions. Where a claim for loss of insured property is placed by the company in the hands of an agent for adjustment, it will be presumed that he is authorized to do whatever is required to be done in adjusting the loss; and, in this case, held that such an agent was presumed to have authority to waive the requirement of the policy as to keeping books and invoices in a fire-proof safe. (Hollis v. State Ins. Co., 65 Iowa, 454, distinguished.)</p> <p>3. -: WAIVER OP CONDITIONS OP POLICY : WHAT AMOUNTS TO. Where a policy of fire insurance required the insured to keep his books and invoices in a fire-proof safe, or in such a manner as to avoid danger of their being destroyed with the insured property; but he kept them in a wooden desk in the building with the insured goods, and they were all burned together ; held that the company waived the requirement, when, upon being informed of the facts, it demanded that the insured obtain, and induced him to incur trouble and expense in procuring, duplicates of the burned invoices, to be used instead of the originals in adjusting the loss. (Hollis v. State Ins. Co., 65 Iowa, 454, followed, and FitehjpatrieJc v. Hawleeye Ins. Co., 53 Iowa, 335, distinguished.)</p>

— Hon. John L. Stevens, Judge. Action to recover for land sold and conveyed by plaintiffs to defendant, the price being fixed by an oral agreement of the parties. There was a judgment on a verdict for plaintiffs. Defendant appeals.

— Hon. George H. Carr, Judge. Action to recover rent for tlie use of land. Defendant tendered twenty-five dollars and costs. The case was tried to a jury, and verdict returned in favor of plaintiffs for twenty-five dollars. Plaintiffs filed a motion for a new trial, which. was overruled. Plaintiffs appeal.

— Hon. Josiah Given, Judge. The defendant was tried by a j ury in a justice’s court on an information which charged him with having owned and kept intoxicating liquors, with intent to sell the same contrary to law. He was convicted and adjudged to pay a fine. Prom that judgment he appealed. In the district court he consented to a trial without a jury, and was again convicted ; and, from the judgment rendered, appeals to this court.

— Hon. L. GK Kinne, Judge. ■ Action against a common carrier for the value of certain property delivered to it for transportation, and which it failed to deliver at its destination. Judgment for plaintiff for the value of the property at the point of destination, as the court found the same to be, less the amount of the freight bill. Defendant appeals.

— Hon. C. F. Loofbourow, Judge Action to recover damages for breach of covenants of a deed, and of a verbal warranty in the sale of land. The case was tried to a jury, and verdict and judgment rendered for plaintiff. The defendant appeals.

— Hon. Gr. W. Ruddicic, Judge. Action for the recovery of damages for a personal injury sustained by plaintiff, as he alleges, while traveling as a passenger on one of defendant’s trains, and caused, as he charges, by the negligence of its servants in charge of the train. Verdict and judgment for plaintiff, and defendant appeals.

The defendant was convicted upon an information, filed before a justice of the peace, charging him with assault and battery. At the trial before the justice of the peace he pleaded guilty to the charge. In the district court he asked leave to withdraw his plea of guilty, and plead guilty of an assault. This was refused. He then asked leave to- withdraw his plea of guilty and plead not guilty. This was not allowed ; and judgment was rendered on the plea of guilty.

— Hon. Ciiables D. Leggett, Judge. Action for recovery of specific personal property. Plaintiff claimed tLe property under a chattel mortgage executed by defendant as securitji for a promissory note for five hundred dollars. He gave the bond provided by the statute, and the property, which, since the execution of the mortgage, had remained in defendant’s possession, was delivered to him by the sheriff under the order issued by the clerk.

<p>1. Payment: evidence : entries in creditor’s books. The entries in a person’s books, showing payment in full of an account to him, are prima-facie evidence against him; but where both he and the one to whom the payment is credited testify that the account has not been paid in full, and the action is against another person, the question of payment should be submitted to the jury.</p> <p>2. Agency: charging principal’s debt to agent : principal not discharged. Where one knowingly deals with an agent within the scope of his agency, and makes charges on his books to the agent, instead of to the principal, on account of debts contracted for the principal, he is not thereby precluded from afterwards . asserting the claim against the principal.</p> <p>3. Estoppel : IN PAIS : WHAT NECESSARY TO CONSTITUTE. Where a creditor, whose debt arose under a contract with an agent, represented to the principal that the debt had been paid by the agent; but the principal had already settled with the agent with the understanding that the debt had not been j>aid, and that the principal would have it to pay, and afterwards paid the agent the amount thus agreed to be due him upon the settlement, held that the creditor was not estopped from looking to the principal for the amount of the debt, since the principal did not rely on the representations made by the creditor, and would not sustain any injury by the creditor’s being permitted to deny the truth of the representations.</p> <p>4. Practice: taking case from jury : when admissible. Before the court is warranted in directing a verdict, every fact favorable to the party against whom the verdict is asked, and which the evidence tends to prove, must be conceded.</p>

— Hon. J. ‘ P. Conner, Judge. This is an action to cancel and set aside tbe last will and testament of Jacob Smith, deceased, upon the ground that said decedent did not have mental capacity to make a will, and because of the alleged fraud and undue influence of the defendants and others.

<p>Settlement: mistake : correction in equity : relief under general prayer. Defendant was owing plaintiff’s intestate on two sejiarate accounts, one for sums due, and the other for sums not due. In settling the accounts, there was a dispute as to whether certain items which defendant had placed in the second account should not be placed in the first, and they were finally so placed, but they were not deducted from the second account, and defendant, in writing, then agreed to pay the amounts of the two accounts, as they then stood — the one at a time stated, and -the other when the several items should come due. Afterwards defendant was sued upon the agreement for the amount agreed to be paid on the first account, and it filed a cross-petition alleging a mutual mistake in the written agreement, in that a credit of a stated sum was erroneously allowed to plaintiff, whereby the amount agreed to be paid on the first account was too large, and asking for a correction of the agreement, and “for such other and further relief as may be in keeping with'equity and good conscience.” Held—</p> <p>(1) That the evidence (see opinion) established a mutual mistake, not in the amount agreed to be paid on the first account, but in failing to deduct ’from the second account the items transferred from it to the first.</p> <p>(2) That although defendant in its cross-petition alleged the mistake to be in the first account, and asked relief as to that, yet, under its prayer for general relief, it was entitled to have the agreement reformed, by deducting from the sum agreed to be x>aid on the second account the sum of the items which had been transferred from it to the first account.</p>

This is an action of replevin to recover possession of about ten thousand bushels of corn, which, at the commencement of the suit, was stored in three cribs at Garrison, in Benton county. The plaintiffs claim the right to said corn by reason of certain crib receipts or chattel mortgages upon the same, made by Ingersoll & Moulton, dealers in grain.

— Hon. James D. GrIEEEN, Judge. The will of J. S. Murfield, deceased, was duly ■ offered for probate by the executor of his estate and others. Hattie A. Miller, a daughter of decedent, contested the probate of the will, and filed objections thereto. These were overruled, and the will admitted to probate. Hattie A. Miller appeals.

— IIon. D. D. Miracle, Judge. This is a proceeding under chapter eight, Laws 1874, to establish a comer and boundary line. The district court appointed a commission, consisting of three surveyors, to make the survey. Two of the commissioners united in a report that the corner should be established at a certain designated point. The other commissioner reported that, in his judgment, the true location of the comer was some distance east of the point designated by the majority.

— Hon. W. P. Brannan, Judge. ' Action in equity to enjoin the defendants. from maintaining a nuisance. Plaintiff was a citizen of the county when the suit was instituted, but afterwards removed to another county in the state.

— Hon. C. F. Loofbourow, Judge. This is an action for a divorce. There was a decree by the court below for the plaintiff. Defendant appeals.

— Hon. George W. Ruddick, Judge. Action in equity to redeem lands from a tax sale after the execution of a tax deed. The judgment determines that plaintiff is entitled to redeem the undivided one-tliird of • the land, and she is required, in making the redemption, to pay a specified amount on account of certain improvements made upon the land by defendants. It also taxes one-half the costs to her, and the balance to the other plaintiff. Plaintiff appeals.

— Hon. J. W. Harvey, Judge. Action, in equity to enjoin the defendant, who is a road supervisor, from removing a culvert from a highway, and from constructing a ditch in. the highway adjoining plaintiff’s farm. Judgment for plaintiff, and defendant appeals.

— Hon. C. H. Lewis, Judge. Plaintiff sued on a claim for the- support of a pauper. He pleaded a contract with, the township trustees, alleging that the trustees had, upon investigation, determined that the pauper was’ a proper subject for relief, and that he should not, in their judgment, be sent to the county poor-house, and that they contracted with him for his support, and that he rendered the services under that contract.

District Court. Tins defendants are husband and wife. The plaintiff is a judgment creditor of the husband. This action was brought to subject certain property, the title to which is in the wife, to the payment of the judgment, upon the ground that the title was taken in the name of the wife in fraud of the creditors of the husband. There was a decree in the district court for the defendants. Plaintiff appeals.

— Hon. L. G. Einne, ' Judge. Defendant was indicted and convicted of maintaining a nuisance by keeping a saloon for the unlawful sale of intoxicating -liquors. He now appeals' to this court.

Defendant appeals from a judgment which required him to pay a fine of two hundred dollars, and ordered his committal to the Decatur county jail for the term of sixty days unless said fine should be paid.

— Hon. E. E. Aylesworth, Judge. Action to recover the possession of personal property of the agreed value of twenty-one hundred and fifty dollars. The case was tried to the court, and judgment rendered for defendant. The plaintiff appeals.

— Hon. John W. Habvey, Judge. Defendant was convicted of an assault with intent to commit murder, and was sentenced to imprisonment for three years in the penitentiary. He now -appeals to this court.

— IIon. W. F. Conkad, Judge. This is action for a personal injury received by tke wife of the plaintiff upon'one of the streets of the city, by reason of a defect in a street-crossing, as is alleged. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.

— How. Walter I. Hayes, Judge. Plajwtiee Laura F. Butterfield is the widow, and the other parties plaintiff are the children and heirs at law, of Franklin Butterfield, deceased. The said Franklin Butterfield, in his lifetime, conveyed the real estate in controversy to the trustees of the Wilton Collegiate Institute.

— Hon. L. O. Kinne, Judge. This action involves the validity of a written instrument purp orting to be the last will and testament of Robert Blake, deceased. There was a trial by jury, and a verdict' and judgment declaring the same to be a valid will. Defendants appeal.

<p>1. Chattel Mortgage: crops not yet grown : validity. A mortgage of crops to be grown in the future is valid.</p> <p>2. -: OF CROPS “GROWN” IN A CERTAIN YEAR: MEANING. A mortgage made in March, 1886, of “ crops grown during the year 1886,” will hold the crops afterwards raised in that year.</p> <p>3. -: VALIDITY : OTHER SECURITY : LENIENCY TO MORTGAGOR. In an action involving the validity of a chattel mortgage, evidence offered by defendant to prove that the mortgagee had other security, and that he had permitted the mortgagor to sell some of the chattels and convert the proceeds, was properly excluded as immaterial.</p> <p>4. -: ENFORCEMENT BY MORTGAGEE : DEBT ASSIGNED : PARTIES. The fact that the note secured by a chattel mortgage bears an assignment pn its back will not defeat au action to enforce the mortgage, where it appears that the assignment was made to secure a debt which has been paid, and that the plaintiff is now the owner of the debt.</p> <p>5. New Trial: newly-discovered evidence: laches. After a verdict had been rendered for the value of a lot of oats, defendant had them weighed, and found that they were of less value than found by the jury. Held that, as this newly-discovered evidence of their value was ascertainable before the trial, it was no ground for a new trial.</p>

— Hon. W. R. Lewis, Judge. Tiie defendant was convicted by the verdict of a jury of the crime of assault with intent to commit murder. The district court overruled his motion for a new trial, and pronounced judgment against him, imposing a term of imprisonment in the penitentiary.

— Hon. G-eoege II. Case, Judge. Action in chancery to recover a judgment against one of the defendants, and to set aside for fraud a deed made by that defendant to the other defendant, and to subject the land therein conveyed to the judgment. There was a decree granting the relief prayed for by plaintiff. Defendants appeal.

— Hon. Charles II. Phelps, Judge. Action in equity to abate a nuisance alleged to be maintained in the keeping of a saloon or dramshop. There was a decree in the district court for the defendants. Plaintiff appeals.

— ITon. John L. Stevens, Judge. The county attorney of Marshall county moved to retax certain costs taxed against Marshall county in the case of The State of Iowa v. Nathan Rainsbarger. The motion was overruled, and the state and county both unite in an. appeal to this court. 1 ■

— Hon. John L. Stevens, Judge. Action at law for the recovery of the price of an organ. Verdict and judgment for plaintiff, and defendants appeal.

— Hon. C. H. Lewis, Judge. Defendant was convicted of the crime of murder in the first degree, committed on or about the third day of July, 1886, in Sioux City, by shooting one Edward Hatch. The shooting by defendant, and the death of Hatch as a result thereof, are not denied; but it is claimed that defendant was insane when he fired the fatal shot, and that, therefore, he should have been acquitted.

This is a civil action by which, plaintiff seeks to recover of the defendant (an alleged transient merchant) the sum of seventeen hundred and fifty dollars for selling goods within the incorporated town of Waukon without a license, and in violation of an ordinance of said town. A demurrer to the petition was sustained.

— Hour. A. B. Thornell, Judge. These are actions for the recovery of specific personal property. Plaintiffs each claim the property under a chattel mortgage executed by J. F. Loomis. Defendant is sheriff, and he levied on the property under two executions against Loomis. The causes were tried together in the district court, and were submitted in this court on the same record.

— Hon. John W. Harvey, Judge. Plaintiff owns and operates a. line of railroad, tlie termini of which are at Huhieston, in. Wayne county, and Shenandoah, in Page county. Defendant is engaged in constructing a railroad between Res Moines and Kansas City, which will cross plaintiff’s road in the valley of West Grand river, in Ringgold county.

— Hon. W. F. Cone ad, Judge. Plaintiee executed to defendant Lundburg Ms promissory note for four hundred dollars, and to secure the same gave a mortgage on real estate. Lundburg indorsed and delivered the note to defendant Morgan. He subsequently gave to the Chicago Lumber Company a written assignment in which he recited that Morgan held it for collection, and that he had no other interest in it.

— Hon. John W. Habvey, Judge. The defendant was convicted of the crime of larceny by the verdict of a jury, and was sentenced by the court to a term of imprisonment in the penitentiary, and from that judgment he appeals.

— Hon. A. J. t Leffingwell, Judge. . Action in three counts to recover damages for libel and slander. A motion to strike out part of the petition, and a demurrer to the several counts or causes of action, were sustained. Plaintiff appeals.

— Hon. Dell Stuart, Judge. In 1886 the defendants brought an action against the plaintiff and John and Thomas Heathcote for the enforcement of a mechanic’s lien. The defendants in that action were all duly served with the original notice. Thomas Heathcote being a minor, a guardian ad litem appointed by the court answered for him, denying the allegations of the petition.

<p>Appeal from Lucas District Qourt.— Hon. Dell Stuart, Judge.</p>

— Hon. J. H. Preston, Judge. Action on a promissory note and an account for goods sold and delivered. Defendants pleaded a composition contract, whereby plaintiffs and certain other creditors agreed to accept fifty per cent of the amounts severally due them in satisfaction thereof. The cause was tried by the court, and judgment was entered for plaintiffs for the full amount claimed. Defendants appeal.

— Hon. H. C. Henderson, Judge. This is a proceeding supplementary to a prosecution under the statute relating to the support of bastard children. In the original proceeding the defendant was ordered to pay five dollars a month towards the support of the child. In this supplementary proceeding the order was vacated. The plaintiff appeals.

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

— Hon. Dell Stuart, Judge. The defendant was accused by indictment of the crime of assault with, intent to commit murder. The jury found him guilty of assault with intent to commit manslaughter, and the court pronounced judgment against him on the verdict, and he appeals.

— How. D. Ryah, Judge. The defendant was indicted for the crime of maintaining a nuisance by keeping a place for the unlawful sale of intoxicating liquors. The indictment is in the usual and lawful form. Upon a motion made by defendant, the district court set aside the indictment. Prom this decision the state appeals.

<p> Original proceeding in this court for contempt in violating an injunction. </p>

<p>1. Criminal Law : liability of wife for acts done in husband’s PRESENCE : PRESUMPTION OF COERCION : EVIDENCE TO REBUT. The law presumes that the influence of a husband over his wife is such that she is not held criminally liable for unlawful acts done by her in his presence, unless there is evidence to rebut this presumption, and satisfy the jury that she was exercising a free volition and was guilty of an independent criminal act; and the mere fact that she attempts to conceal her husband’s crime does not make her a party to it, but evidence of such efforts on her part may be considered as bearing upon her guilt or innocence of the crime. (Compare State v. Fitzgerald, 49 Iowa, 260.)</p> <p>2.--: MURDER BY HUSBAND : COMPLICITY OF WIFE : EVIDENCE. r The evidence in this case considered (see opinion ), and held that it was not sufficient to sustain a verdict of manslaughter, — it not appearing therefrom that, when the murder was committed by defendant’s husband, she, if present, took any part therein either by word or act; or, if she did, it did not rebut the presumption that she was coerced by her husband.</p>

— Hon. J. H. Preston, Judge. This is an action at law for the recovery of damages for killing and injuring certain cattle, the property of plaintiff, by the alleged negligence of defendant’s employes in running and operating a train of cars upon defendant’s railroad. There was a verdict and judgment for plaintiff. Defendant appeals.

— Hon. George Carson, J udge. Action at law on a written contract for tlie payment of a sum of money. The, cause was tried to the court, and judgment was entered for defendant. Plaintiff appeals.

— Hon. II. E. Deemee, Judge. The defendant was convicted of the crime of larceny and sentenced to a term of imprisonment in the penitentiary, and he appeals.

— Hon. A. B. Thobnell, Judge. Defendant was indicted for the crime of nuisance alleged to have been committed by keeping for sale and selling intoxicating liquors contrary to law. The cause was tried to a jury, and the defendant found guilty. From the judgment rendered on the verdict the defendant appeals.

— -Hon. J. K. . Johnson, Judge. Action at law to recover damages for an injury to the person and property of plaintiff by a collision of, a locomotive engine with a wagon at a street crossing in the city of Oskaloosa. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

— Hon. W. P. Brannan, Judge. Defendant was indicted, for the offense of keeping a nuisance by maintaining a saloon for the unlawful sale of intoxicating liquors. A demurrer to the indictment was sustained, and defendant discharged. The state appeals. •

Appeal from Shelby District Court. Indictment for cheating by false pretenses. Trial by jury, verdict guilty, and judgment. The defendant appeals.

<p>1. Contempt: jury trial. A person held to answer for a contempt is not entitled to a trial by jury.</p> <p>2. Execution: auxiliary proceedings : notice to defendant. When the defendant is present in court at all stages of a proceeding auxiliary to execution for the purpose of discovering property, an order made will be binding on him without its being reduced to writing and signed by the judge and personally served.</p> <p>3. -:--: EXAMINATION OF DEFENDANT : AFFIDAVIT AS BASIS of. Where a defendant is examined for the discovery of property in a proceeding auxiliary to execution, and a second examination is had which is but a continuation of the first, a new affidavit is not required by section 3136 of the Code.</p>

— Hon. D. D. Mikacle, Judge. Indictment for murder in the first degree. Trial by 'fury. . Yerdict, guilty of manslaughter; and judgment thereon. Defendant appeals.

<p>1. Appeal: CRIMINAL CASE : PRESUMPTION in pavor op judgment. On the appeal of a criminal cause, where the evidence is not brought up, it will be presumed that every fact necessary to warrant the judgment was proved by competent and undisputed evidence.</p> <p>2. Forgery : indictment : variance. Where the forged instrument was dated January 7, 1885, but the copy set out in the indictment showed it to be dated January 7, 1884, the court properly instructed that the variance was immaterial.</p> <p>3. -: place op crime : evidence. The fact that the forged instrument purported to have been executed in Mitchell county, and that defendant had it in his possession in that county at about the time it purported to have been executed, was competent evidence, and, in the absence of anything to the contrary, sufficient, to prove that the forgery was committed in that county.</p>

<p>1. Beal Estate : action to recover. : minors’ land sold by father : ratification : evidence : taxes paid by purchaser. A father purchased a section of land with his wife’s money, and had a quarter-section of it conveyed to each of their four minor sons, who are plaintiffs herein. Afterwards, and while plaintiffs were yet minors, he conveyed the land to defendants in exchange for other land, a portion of which was conveyed to one C., who after-wards, for a named consideration, conveyed it to plaintiffs. Plaintiffs and defendants entered into possession of the lands which came to them respectively under these transactions, and defendants paid taxes on the lands which they thus claimed to own. This action was to recover the land conveyed by the father to defendants. Held—</p> <p>(1) That if C. was a mere conduit for passing the 'title from defendants to plaintiffs of the land which C. conveyed to them, and plaintiffs accepted and disposed of this land, knowing that it was the consideration which defendants had paid ' for the land in question, this would be a ratification of their father's act in making the exchange, and that they could ' not recover; but</p> <p>(2) That, in order to defeat plaintiffs’ recovery on their legal title, it was necessary for defendants to prove these facts by clear and satisfactory evidence, which they have failed to do.</p> <p>(3) That, since defendants paid taxes on the land in good faith, believing that they were the real owners, they were entitled, upon a decree being entered for plaintiffs for the lands, to a judgment for such taxes with interest, the same to be a lien on the land.</p> <p>2.' Evidence : transactions between persons deceased. In an action to recover land which plaintiffs’ father traded to defendants’ brother for other lands, where the father and brother and an intermediate owner were all dead, held that one of the defendants was incompetent to testify to the personal transactions between the persons deceased. (Code, sec. 3639.)</p> <p>3. Deposition: objecting to incompetent evidence : time. Where a witness in a deposition gave incompetent testimony, because relating to transactions with one deceased, but the adverse party did not know of the decease until the examination in chief had closed, and he then made the objection, and afterwards, six months before the trial, he moved the court to strike out the objectionable testimony, held that the objection was made in time.</p>

— Hon. J. K. Johnson, Judge. Action to recover for personal injuries sustained by plaintiff while attempting to go upon a car attached to a train drawn by an engine on defendant’s railroad. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action to recover for personal injuries sustained by plaintiff by a fall from a bridge upon a street of the town, while riding over it in a sleigh; the accident occurring through the fault of defendant in failing to erect and maintain railings or barriers to the bridge. There was a judgment upon a verdict for plaintiff. Defendant appeals.

— Hon. A. B. Thornell, Judge. Defendant was indicted and convicted for keeping a nuisance by maintaining a place for the unlawful sale of intoxicating liquors. He now appeals to this court.

— Hon. A. J. Leeeingwell,- Judge. On the tenth day of May, 1887, one Timothy Mullany received a wound, from the effects of which he died some two days later. Appellant and one Eichard Kelly were jointly indicted for the alleged murder of said Mullany. Appellant was tried separately,' and convicted of the crime of murder in the second degree.

<p>Appeal from Jasper District Court. — IIon. J. K. Johnson, Judge.</p> <p>Action to recover damages alleged to have been caused by the improper obstruction of -a stream which flows through the land of plaintiff and across the right of way of defendant. The cause was tried to a jury, and verdict and judgment rendered for plaintiff. The defendant appeals.</p>

.— Hon. Charles H. Phelps, Judge. Action on an alleged parol promise Ny defendant to pay a debt -which one H. A. Hills was owing to plaintiff. Yerdict and judgment for plaintiff. Defendant appeals.

— Hon. Chas. H. Phelps, Judge. This is an action in equity to subject certain real estate to the payment of a judgment. The district court rendered judgment in favor of defendants for costs, and plaintiff appeals.

<p> Appeal from Keoltulc Superior Court. </p> <p>Action on a policy of insurance against loss or damage by fire. Trial to the court without the intervention of a jury, and judgment for plaintiff. Defendant appeals.</p>

— Hon. Chas. H. Phelps, Judge. Action on a policy of insurance against loss or damage by fire. Trial by jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. Charles H. Pi-ielps, Judge. Action to restrain the collection of a special assessment levied by the city of Burlington for street improvements. The district court denied the relief asked, and rendered judgment in favor of defendants for costs. Plaintiff appeals.

— Hon. Charles H. Phelps,. Judge. The plaintiff in this action demands a judgment against the defendant for three hundred dollars. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

- — Hon. Charles II. Phelps, Judge. The petitiou of plaintiff alleges that on the twenty-fourth day of May, 1886, Benjamin Wertz died intestate, seized in fee of the west half of the southeast quarter, and east half of the southwest quarter, of section ten, and the east half of the northeast quarter of section twenty-one, all in township sixty-eight north, of range eighteen west; that defendant Mary J. Wertz is the widow of decedent, and as such is entitled to an undivided…

— IIon, H. C. Traverse, Judge. The plaintiff seeks to recover the amount appearing to be due on a promissory note for four hundred dollars, dated November 26, 1877, payable to plaintiff one day after date, and purporting to be «signed by defendant. The answer of defendant is under oath, and denies the making of the note ; alleging that the signature thereto is a forgery.

— IIon. Dell Stuart, Judge. Indictment for an assault with intent to commit mnrder. Trial by jury; verdict, “Guilty of an assault with intent to commit manslaughter;” judgment) and the defendants appeal.

— Hon. Chaeles H. Phelps, Judge. On the sixth of June, 1887, one Thomas Fennell filed his petition in the district court, in which he alleged that defendant occupied a certain building in the city of Burlington, in which he carried on the business of selling intoxicating liquors, contrary to law, and in which he prayed that a writ of injunction might issue restraining the defendant from maintaining such nuisance, and for an order for the abatement of the same.

<p>Appeal from Des Moines District Court. — Hon. Charles H. Phelps, Judge.</p> <p>Action to recover possession of real estate. Judgment for plaintiff and defendant appeals.</p>

— Hon. Charles D. Leg-gett, Judge. The defendant was convicted of the crime of keeping a house of ill fame, and sentenced to a term of imprisonment in the penitentiary, and he appeals.

— Hon. Scott M. Ladd, Judge. This and five other causes were, by agreement of counsel, submitted together. They all involve the same question, which is the amount of attorney’s fees proper to be taxed in certain actions for the abatement of liquor nuisances. The court fixed the fees at twenty-five dollars in each case: Plaintiffs, being dissatisfied with the allowance made, appeal to this court.

<p>Appeal: review of former opinion : stare decisis. The correctness of an opinion filed by this court may be reviewed upon a petition for rehearing, but not on a second appeal in the same case.</p>

— Hon. D. D. McCallum, Judge. Action in equity to enforce the specific performance of a contract by which it is claimed that defendant was bound to execute a promissory note to plaintiff. There was a decree for defendant, and plaintiff appeals.'

<p>Appeal from, Harrison District Court. — Hon. C. H. Lewis, Judge.</p> <p>Action to recover the amount of a loan alleged to have been made to defendant by plaintiff’s intestate, and the value of certain personal property alleged to have belonged to decedent, and to have been converted by defendant to his own use. ' The case was tried to a jury, and a verdict and judgment rendered for plaintiff. The defendant appeals.</p>

<p>1. Taxation: jurisdiction or assessor. An assessor in this state has the power and jurisdiction to determine that shares of stock in a bank in another state, owned by residents in his district, are assessable by him, so that the assessment, if erroneous, will not be void.</p> <p>2. -: ERRONEOUS ASSESSMENT: UNWARRANTED CORRECTION BY supervisors : certiorari by taxpayer. Where a taxpayer was assessed at the place of his residence with shares in a bank located in another state, and, without complaining to the city or township board of equalization, he applied to the county supervisors for an abatement of the tax, and they granted the relief asked, held that they acted without jurisdiction, and that a taxpayer of the county was entitled to have their action reviewed and set aside on certiorari. (See statutes and oases cited in opinion.)</p>

— líos. R. 0. Henby, Judge. Action in equity. The prayer of the petition is in the alternative — (1) that the title to certain real estate be quieted in plaintiffs against a tax deed executed by the county treasurer to defendant George Sweney, and that the conveyance under him, through which defendants claim title, be canceled ; or (2) if that relief cannot be granted, that Sweney be adjudged to hold the proceeds derived, by him from the sale of the property in trust for…

— Hon. John W. Harvey, Judge.. Action for the recovery of damages on account of an alleged fraud in the sale of real estate. Verdict and judgment for plaintiff. Defendant appeals.

This action was brought to obtain possession of a policy of life insurance. The defendant Edgar Holmes intervened. There was a trial to the court without a jury, and judgment ivas rendered for the intervenor. The plaintiff appeals.

This is an action for the recovery of damages for a personal injury sustained by plaintiff, as is alleged, while alighting from a passenger train on defendant’s railway. The cause was tried to a jury, and there was a verdict for plaintiff for three thousand dollars, Defendant filed a motion in arrest of judgment, also a motion for a new trial. The circuit court overruled both of these motions, and entered judgment on the verdict. Defendant appeals.

— Hon. W. R. Lewis, Judge. Action upon the official bond of a constable, to recover, against the principal and sureties, for a breach, of its conditions. There was a judgment upon a verdict for plaintiff Defendants appeal.

Appeal from Jefferson District Court. Action at law. Trial to the court, judgment for the plaintiff, and the defendant Crawford appeals.

— Hon. A. J. Leffingwell, Judge. Action upon a life insurance policy. There was a demurrer to the answer, which was sustained. Defendant appeals.

— Hon. Nathaniel French, Judge. Action wherein the plaintiff, as executor, prays for a decree fixing the interpretation of the will of his testate. A decree answering the prayer of the petition was rendered, from which a part of the defendants appeal. :

<p>Appeal: criminal case : record examined.</p> <p> Appeal from Black Hawk District Court. </p>

<p>Former Adjudication : recovery of taxes paid under mistake. {Goodnowv. Burrows, ante, pp. 251 and256, followed.)</p>

<p>Recovery of Taxes Paid by Mistake. {Goodnow v. Wells, 67 Iowa, 651, and ¿fame u. TAtchfield, 67 Iowa, 691, followed,)</p>

<p>Appeal: CRIMINAL CASE SUBMITTED ON RECORD : AEEIRMED.</p> <p>Appeal from Harrison District Court. — Hon. C. H. Lewis, Judge.</p>

— Hon. Charles D. Leggett, Judge. The defendants were indicted and convicted for maintaining a nuisance by keeping a place for the unlawful sale of intoxicating liquors, and now appeal to this court.

— Hon. J. H. Macomber, Judge. The defendants were indicted for the crime of mingling poisons with drink with intent to injure a human being. They were found guilty by a jury, and from the judgment rendered on the verdict appeal.

<p> Original proceedings in this court on certiorari. </p>

— Hon. Josiah Given, Judge. Indictment for a nuisance caused by the defendant selling and keeping for sale intoxicating liquors. He pleaded not guilty. ■ Trial by jury, verdict and judgment. The defendant appeals.

— Hon’. Josiah Given, Judge. Defendant was tried in justice’s court, for the offense of keeping intoxicating liquors with intent to sell the same in violation of law He was convicted and thereupon appealed to the district court of Polk county. He was again tried, found guilty and adjudged to pay a fine of fifty dollars and costs. He now appeals from that judgment.

— ITon. R. C. Henry, Judge. On the eleventh day of July, 1876, the First National Bank of Leon entered into a written contract with the Farmers’ & Traders’ Bank of the same place, by which the said First National Bank sold to said Farmers’ & Traders’ Bank its good will and business, and its assets, and .the Traders’ Bank assumed the payment of the liabilities of the national bank.