Volume 77 — Iowa Reports

— Hon. Dell Stuart, Judge. This is an action in equity for the partition of certain real estate. There was a decree for the plaintiff. A motion for a new trial was sustained, and plaintiff appeals.

— Hon. J. J. Ney, Judge. Action on a promissory note. The defenses pleaded are: (1) That defendant is surety on the note, and that plaintiff’s intestate had neglected to institute suit thereon against the principal maker, and that the action against him is now barred by the statute of limitations of the state of Illinois, where he resides, whereby defendant was discharged ; and ( 2) that after the maturity of the note, and when defendant was about to remove to this state,…

— Hon. S. M. Ladd, Judge. Action to recover the possession oí five hundred bushels of oats, of the alleged value of one hundred dollars. Upon the submission of all the evidence on the part of the plaintiff, the court instructed the jury to return a verdict for defendants. A verdict was returned in accordance with the instruction, and from the judgment rendered thereon the plaintiff appeals.

— Hon. S. M. Weaver, Judge. The plaintiff is the owner of the north half of block 9 in Cox’s First addition, and all of block 10 in Cox’s Second addition, to Eagle Grove Junction, in Wright county. The defendant’s road is located across and touches lots 4, 5 and 6, in the north half of block 9, and lots 1, 2, 8, 4, 7, 8, 9, 10 and 11, in block 10.

— Hon. C. F. Hr anger, Judge. Action upon a promissory note. The case was tried to a jury, and a judgment had for plaintiff upon direction of the district court. Defendants appeal.

— Hon. G. W. Rttddiok, Judge. Action in chancery to set aside a tax sale and deed, and to quiet in plaintiff the title to the land conveyed by the deed. Upon a trial on the merits plaintiff ’ s petition was dismissed. He now appeals to this court.

— Hon. John L. Stevens, Judge. Action to recover double the value of a cow, which was killed by defendant in the operation of its railway, at a point where it had the right to fence its track, but where it had neglected to maintain a fence. Judgment for plaintiff. Defendant appeals.

— Host. Josiah Given, Judge. Action to recover an amount alleged to be due to plaintiff on account of salary earned ’ as secretary and manager of defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. S. M. Weaver, Judge. This is an action on two orders drawn by the president and secretary of the defendant on its treasurer, directing him to pay a sum of money to E. L. Norris in one year from the date thereof, with ten per cent, interest. .

— Hon. Lot Thomas, Judge. Action in equity to quiet in plaintiff the title to lots numbers 1 and 2, in section 28, in township 92, range 29, in Humboldt county, Iowa. Defendant Bullard answered, denying the equities of the plaintiff’s petition, and averring an equitable interest therein in his own behalf. There was a decree for the defendants, and the plaintiff apxieals.

— How. J. H. Preston, Judge. Action upon a promissory note. Trial by jury, and verdict and judgment for plaintiff. Defendants A. C. Tasker and T. Gr. Tasker appeal.

— Hon. Chas. D. Leggett, Judge. Action to recover for a nuisance caused by defendant constructing and maintaining a sewer, which emptied into a street, near plaintiff’s dwelling house. There was a judgment upon a verdict for plaintiff. Defendant appeals.

— Hon. Dell Stuart, Judge. Action to recover damages alleged to have been caused by wrongful acts on tbe part of defendant. Tbe cause was tried to a jury, and a verdict and judgment . rendered for plaintiff. The defendant appeals.

— Hon. John L. Stevens, Judge. Action upon a contract for the purchase of a twine-binder harvester. There was a judgment upon a verdict for defendant. Plaintiffs appeal.

— Hon. H. E. Deemer, Judge. Action iu equity to foreclose a mortgage upon certain real estate. The defendants Deere, Wells & Co. are creditors of the defendant L. H. Nelson, the mortgagor, and the cause involves the rights of the plaintiff and Deere, Wells & Co. to subject the land to the payment of their claims against the mortgagor. There was a full trial upon the merits, and a decree was entered which was not satisfactory to either party, and both appeal.

— Hon. John L. Stevens, Judge. This is an action of mandamus to compel defendant to construct a crossing at the point of intersection of its railway with an alleged street of the plaintiff town. The district court denied relief, and plaintiff appeals.

— Hon. Charles H. Phelps, Judge. The defendants are six in number, and are the wife and children of a brother of the plaintiff. The plaintiff and defendants took by inheritance from a common ancestor a quantity of land in Des Moines county. In 1884 a suit was instituted in the circuit court of said county by the plaintiff herein against the defendants for the partition of said land.

— Hon. George Carson, Judge. Action to recover damages alleged to be due by reason of fraud and breach of warranty in the sale of ponies. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. George Carson, Judge. Action against the makers and guarantors of promissory notes. There was a judgment upon a verdict for defendants. Plaintiff appeals.

— Hon. A. J. Leeeing-well, Judge. Action upon a policy of insurance against loss by fire. There was a trial.by the court without a jury, and a judgment for defendant for costs. Plaintiff appeals.

— Hon. Josiaji Given, Judge. Action by a landlord against his tenant to recover rent, and to enforce a specific lien therefor on certain personal property. The cause was tried to the court, and a judgment rendered in favor of plaintiff for $194.25 and costs.

— Hon. L. Gf. Kinne, Judge. In June, 1886, Mrs. Sarah Troxel, the wife of the plaintiff, was injured while passing over a sidewalk in the defendant city, and this action was brought by the husband to recover damages. There wms a trial to a jury, a verdict and judgment for the plaintiff, and the defendant appeals.

— Hon. Lot Thomas, Judge. The plaintiff, Scovil, filed in tlie district court, sitting as a'court of probate, a claim against tbe estate of Lorenzo Price, based on a judgment of the district court of Dallas county. Upon a trial on the merits the claim was disallowed and rejected. Plaintiff appeals.

— Hon. S. M. Weaver, J udge. Plaintiff brought suit on a money demand, and sued out a writ of attachment. Defendant pleaded a counter-claim on the attachment bond for the wrongful suing out of the writ, on which he recovered. Plaintiff appeals.

— Hon. George H. Carr, Judge. AcTrow in chancery to quiet and establish title in plaintiff to a certain tract of land. Upon a trial on the merits plaintiff’s petition was dismissed. He now appeals to this court.

<p>Assault With. Intent to Rape: punishment. For an assault with intent to rape, committed upon a child of tender years,.but in no other respect an aggravated offense, the defendant was sentenced to fifteen years at hard labor in the penitentiary. Held not duly proportioned to the degree of the offense, and it is reduced to ten years.</p>

— Hon. J. P. Conner, Judge. On the twenty-second day of February, 1888, tlie plaintiffs commenced an action against one Speers upon an account for goods sold. An attachment was sued out, and J. A. Gallaher, the appellant, was garnished. Judgment was rendered against Speers, and the answer of appellant garnishee was taken in open court, and, on motion of the plaintiffs, judgment was rendered against him for the amount of the judgment and costs against against Speers.

— Hon. Lot Tiiomas, Judge. TnE subject of this action is a farm of three hundred and twenty acres in Humboldt county. For many years'prior to April, 1879, plaintiff had been the owner of said farm, and the legal title thereto is still vested in him. In 1876 defendants, who are the daughter and son-in-law of plaintiff, went into possession under a parol lease, and have remained in possession ever since.

— Hon. R. C. Henry, Judge. Action by attachment. The intervenor (a bank) claims certain goods attached. The issues arising upon this claim are involved in this appeal. The cause was tried to a jury, and a judgment had for plaintiffs. The intervenor appeals; The case has before been in this court. See 65 Iowa, 32.

— Host. John L. Stevems, Judge. . This is an action in equity, brought for the cancellation of an agreement in regard to real estate, to quiet title, and for an accounting. A decree was rendered in favor of the plaintiffs. Defendants appeal.

— Hon. J. H. Preston, Judge. Action to set aside certain mortgages, and to subject real estate to the payment of a judgment. After the hearing in the district court judgment was rendered dismissing the petition of plaintiff, and awarding to defendants costs. Plaintiff ajjpeals.

— Hon. Marcus Kavanagh, Jr., Judge. Action in chancery to enforce the right of plaintiff to redeem from certain execution sales of real estate; the certificates of purchase having been acquired and being held by defendant Butler under an agreement with plaintiff whereby the right to redeem was extended and secured.

— Hon. W. R. Lewis, Judge. Plaintiff was accused of contempt in disregarding an in j unction. On a hearing before the distriqt court of Poweshiek county, he was found guilty and sentenced to pay a tine, and to be imprisoned in the county jail. He then sued out a writ of certiorari from this court, which was served on the judge, who for return to the writ has certified the record of the proceedings to us.

— Hon. W. R. Lewis, Judge. Tnu defendant and one W. H. Hoagland were jointly indicted on a charge of keeping and maintaining a nuisance by unlawful traffic in intoxicating liquors. They were jointly tried, and the defendant was alone found guilty. He appeals.

— IIon. John L. Stevens, Judge. Action to recover for oats in the stack, and straw, stubble, pas ture and fences owned by plaintiff, which were burned by a lire set out by an engine operated on defendant’s road. There was a judgment on a verdict for plaintiff. Defendant appeals.

— Hon. Chas. H. Phelps, Judge. Action to recover for money collected, and converted to defendant’s own use. The case was tried without a jury, and judgment was rendered for defendant. Plaintiffs appeal.

<p>Appeal from Harrison District Court'. — Hon. Charles H. Lewis, Judge.</p> <p>Action for the recovery of specific personal property. Yerdict and judgment for defendant. Plaintiff appeals.</p>

— Hon. A. B. Tiiornell, Judge. TnE action was in attachment, wherein a receiver was appointed, and the attached property was converted into money. The Grinnell Barb-Wire Company intervened, and, by the judgment rendered in the case, the property was awarded to that company. Subsequently, C. Linderman intervened, claiming the property involved in the case. His claim was sustained by the court below, and a judgment to that effect was rendered.

— How. James D. GIieeem, Judge. This is an action to quiet the title in plaintiff to certain real estate in Jones county. The court below dismissed the petition, and the plaintiff appeals.

— Hon. J. H. Preston, Judge. Action upon the official bond of a sheriff to recover for the alleged failure of the sheriff to deliver to his successor in office certain property seized by him upon an attachment, tobe sold upon a special execution issued on a judgment rendered in the action wherein the attachment was issued. There was a trial to the court without a jury, and a judgment for defendants. Plaintiffs appeal.

— Hon. H. E. Deemer, Judge. Action in chancery to set aside a decree of foreclosure of a mortgage, and the sale of the land thereunder, and to redeem from the mortgage. There was a decree dismissing plaintiff’s petition, after a trial on the merits. Plaintiff appeals.

—Hon. Charles H. Waterman, Judge. This is an action on a policy of insurance against loss or damage by fire. The policy was issued by the New York Alliance. Plaintiff alleged in his petition that defendant, by contract with that company, reinsured the property, and thereby became bound to pay the loss. Defendant’s answer contains a general denial.

— Hon. W. F. Conrad, Judge. This is an action in equity to cancel a lease of certain premises. There was a hearing upon the merits, and the petition was dismissed. Plaintiffs appeal.

— Hon. J. M. Casey, Judge. This is an action in equity to reform a deed, and to recover damages for the alleged wrongful entry upon the premises conveyed by the deed, and the destruction of crops growing thereon. The district court rendered a decree reforming the deed as prayed, and awarding to plaintiff damages in the sum of one hundred and seventy dollars. The defendants appeal.

— Hon. John B. Cleland, Judge. Action in chancery to enforce a contract for plaintiff’s support by an order compelling defendant to pay plaintiff a sufficient sum to be used for that purpose, and for other and further relief demanded by equity. A demurrer to the petition was sustained. Plaintiff appeals.

— Son. J. B. Cleland, Judge. Action for the recovery of damages for an alleged assault and battery. Verdict and judgment for the defendant. Plaintiff appeals.

<p>Appeal: from verdict without judgment. This court has no jurisdiction to entertain an appeal from a verdict on which the record fails to show that a judgment has been entered. (Compare Shannon v. Scott, 40 Iowa, 629.)</p>

<p>1. Insurance Against Wind: false statements as to encumbrance : knowledge Oe agent. The property insured in this case was held by plaintiff under a title bond, on which plaintiff had paid some interest, but none of the principal, and the interest so paid, and the money expended for the insured building, was the extent of the plaintiff’s interest in the property. Defendant’s soliciting agent was, at the time of taking the application, informed of these facts, but it was his opinion that they created no encumbrance on the property, and in accordance with that opinion plaintiff stated in the application that the property was not encumbered. Held that the knowledge and conduct of the agent bound the company, and that it could not avoid liability on the policy on account of the false statement in the application, although the policy provided that any such false statement should render it void. ( See cases cited in opinion.'</p> <p>2. Evidence: error without prejudice. The admission of incompetent evidence is not prejudicial when it tends only to prove a point admitted, nor when a statement proved thereby could not reasonably be regarded by the jury as relating to the point in issue. ( See opinion for illustrations.)</p> <p>8. Insurance: adjustment oe loss under mistake: evidence. Defendant claimed that its agent adjusted the loss in question, believing that the property was free from encumbrance, when it was not; and it now seeks to avoid paying the loss on that ground. Held that it was proper to admit evidence tending to show that the adjusting agent’s attention was called to the encumbrance before he adjusted the loss.</p> <p>4. Instructions: error without prejudice. An instruction which requires plaintiff to establish facts, which the statute says shall be regarded as true, cannot be prejudicial to defendant, though there is no evidence of the facts referred to in the instruction. (See opinion for illustration.)</p> <p>5. Slew Trial: surprise : evidence not prejudicial. A new trial is properly refused on the ground of surprise in certain testimony, where it appears that such testimony was not prejudicial to appellant.</p>

— Hon. James D. Giffen, Judge. The last will and testament of Sidney E. Bills was probated in September, 1886. Irene Bills, his widow, and one John Bender, are executors of the will. They filed a final report, in which they showed the estate to be fully settled. It appears from the report that said Irene Bills is in possession of the personal property left by the testator, and that she claims the same under the will.

— Hon. Henry Bank, Jr., Judge. This is an action in equity to enjoin the defendant from maintaining a nuisance. Held: in effect, that the transaction of selling the beer in the manner in which it was done was beyond the power of the state to control or prohibit, but was purely a matter of commerce between the states, which could be regulated only by the congress of the United States ; also that, when the boxes and barrels in which the bottles of…

<p>Certiorari to Clinton District Court. — -IIon. Andrew Howat, Judge. •</p>

— Hon. John T. Stoneman, Judge. Action in chancery to rescind the contract of purchase of certain town lots, and to cancel a note and mortgage executed by plaintiff to secure a part of the purchase money. The relief prayed for was granted by the decree. Defendant appeals.

— Hon. George H. Carr, Judge. Action to recover the possession of a quantity of prairie hay. There was a trial by jury, and a verdict and judgment in favor of defendant. The plaintiff appeals.

— Hon. John W. Harvey. Judge. Dependant was convicted of the crime of nuisance, and the court pronounced judgment against him, imposing a fine, and from that judgment he appeals.

— Hon. George Carson, Judge. This-- is an action of forcible detainer, which was originally brought before a justice of the peace, where there was a trial by jury, and a verdict and judgment for defendant. The plaintiff appealed to the district court, where a trial was had without a jury, and a like judgment was rendered. Plaintiff appeals.

— Hon. J. L. Stevens, Judge. This is an action in equity, by which the plaintiff, who is a judgment creditor of the defendant Thomas A. Maddux, seeks to subject certain real estate, the legal title to which is in the defendant Ezra T. Maddux, to the payment of plaintiff’s judgments. There was a hearing upon the merits, and a decree for the plaintiff. Defendants appeal.

— Hon. John J. Net, Judge. The defendant was indicted and tried for the crime of murder in the first degree. The jury found him guilty as charged, and determined that he should be punished with death. He was sentenced to be hanged on the first day of March, 1889, and appeals. <

— Hon. J. M. Casey, Judge. Action in chancery to restrain defendants from prosecuting an ad quod damnum proceeding to recover the value of certain land occupied in the construction of plaintiff’s railroad. Defendants answered the petition, setting up matters in defense, and asking that the plaintiff’s petition be dismissed.

—Hon. Lot Thomas, Judge. Action of mandamus to compel defendant to make certain corrections in the tax-list. Demurrer to the petition. Demurrer sustained, and plaintiffs appeal.

<p>Insurance: against accident : non-payment of premium installments : forfeiture : notice : waiver. M. was an employe of a railroad company, and he procured of the defendant an accident insurance policy payable to his wife, the plaintiff. The policy insured him for four consecutive periods of two, two, three and five months, respectively, from April 21, 1887, and to pay the premiums he gave to defendant an order on the railroad company for the payment of five dollars out of his wages for each of the months of May, June, July and August, 1887, and it was expressly provided in the contract that each of the four payments was to be applied only to its corresponding insurance period, and that “all claims for injuries effected during any period for which its respective premium has not been actually paid shall be forfeited to the company.” The railroad company received the order and placed it on file as a voucher, and paid the five dollars out of M.’s wages for the month of May, but it never formally accepted the order. The defendant, on or before June 21, demanded of the railroad company the five dollars for that month, but payment was refused on the ground that M. was no longer in that company’s employment; but he was in fact in its employment, though on another division, and he drew all of his earnings for the month of June ; and on the twenty-ninth of that month he wrote to the defendant to cancel his policy, as he did not wish to carry it longer. Defendant did not, however, cancel the policy nor return the order to M. On the eighteenth of July following M. was killed by an accident, and plaintiff drew all the wages due him. Reid—</p> <p>1) That the order on the railroad company did not amount to a payment of the premium, and that M. was insured only for the first period of two months, for which the premium was actually paid; which time expired prior to his death.</p> <p>(2) That since M. had directed the cancellation of the policy, and drew all his wages for the month of June, it is evident that he intended to terminate it, and considered it no longer in force, and that he had actual notice that the payment of the premium for June had not been made. Hence the plaintiff has no ground to complain that defendant did not notify him of the railroad company’s failure to make the second payment.</p> <p>(3) That defendant’s right to claim a forfeiture was not waived by its failure to cancel the policy and return the order ; for, had the cancellation been waived, and M. lived, and the third payment been made, the policy would have been in force, by its terms, during the third period, regardless of its condition during the second.</p>

— Hon. GJ-eobge H. Cakb, Judge. Action for the foreclosure of a mortgage upon certain real estate. Upon a hearing on the merits there was a decree for the defendants. • Plaintiff appeals.

— Hon. Lot Thomas, Judge. Action to subject certain real estate to the payment of a judgment. Decree for defendants, and plaintiff appeals.

— Hon. C. P. Couch, Judge. This is au action to recover damages for an alleged unauthorized and fraudulent disposition of the property of the Dubuque Democrat Printing and Publishing Company, a corporation, whereby plaintiff, as a stockholder in said corporation, was damaged. The action was originally brought at law, and on motion of the plaintiff, against the objections of the defendants, was transferred to and tried as an equitable proceeding.

— Hon. D. D. Miracle, Judge. The defendant was convicted of the crime of larceny committed by the embezzlement of property of the value of $106.50. From the judgment of the court requiring Mm to be imprisoned in the penitentiary at Ft. Madison at hard labor for the term of one year he appeals.

Appeal- from, Pollc District Court. — Hon. Josiah Given, Judge. The defendants were indicted, tried and convicted upon a charge of keeping a liquor nuisance, and they appeal.

— Hon. Charles H. Phelfs, Judge. Proceeding for the establishment of a highway. There was an appeal to the district court from the allowance of dam age. The district court dismissed the appeal, and gave judgment for, the defendant. The plaintiff brings this appeal.

— Hon. James D. Gieeen, Judge. Action to enjoin the obstruction of a public highway. In 1864 the public highway was established on a certain part of the line between sections 12 and 13, township 85, and- thence west. The location is in timber and brush land, and the road has never been opened up or worked by the public. What travel there -was had been over the adjacent open country, without reference to the established line.

— Hon. C. F. Loorbo.ijeow, Judge. Action to recover the value of one car-load of poultry. Trial to a jury. Yerdict and judgment for plaintiffs. Defendants appeal.

— Hon. C. F. Loofbourow, Judge. Action to recover damages for an alleged breach of contract for the sale of real estate. Trial to a jury. Yerdict and judgment for defendant. Plaintiff appeals.

— Hon. J. P. Connee, Judge. Action in equity for judgments on notes, and decree foreclosing four mortgages, given to secure the same, on a certain quarter section of land. The defendants’ answer admits that but for the matter alleged in defense the plaintiffs would be entitled to decree as prayed.

— Hon. Walter I. Hayes, Judge. At the December term, 1885, of the district court of Jackson county, twelve indictments were found against the defendant. Six of these indictments charged the defendant with larcenies, and the others were charges for burglariously breaking and entering buildings. The defendant was in custody when the indictments were found. He was arraigned upon each charge separately, and put upon trial.

— Hon. Henky Bank, Jk., Judge. Action in equity to recover the possession of and quiet tiie title to certain lands. The defendants, in their answer, set up title to the lands, and pray that it be quieted in them. There was a trial on the merits, and a decree dismissing plaintiff’s petition and quieting the title in defendants. Plaintiff appeals.

— Hon. R. O. Henry,. Judge. Tins is an action in equity, and it involves the ownership and possession of a farm. There was a decree for' the plaintiffs. Defendants appeal.

— Hon. John W. Harvey, Judge. This action was commenced in justice’s court to recover damages alleged to have been caused by the wilful and malicious destruction of certain straw. The defendants appeared, and filed an answer, which set out several defenses to plaintiff’s right of recovery,' including a counter-claim. Plaintiff filed a motion to strike several divisions from the answer, which was sustained.

— Hon. H. C. • Tkavekse, Judge. Action to restrain the defendants, as trustees of Bonaparte township, from selling certain lands purchased for cemetery purposes, under certain limitations or restrictions. There was judgment for the defendants, and plaintiff appeals.

— How. Charles H. Phelps, Judge. The defendant is tbe administrator of the estate of Philip Thoman, deceased. The plaintiif presented a claim for seven hundred dollars against the estate. The defendant denied that anything was due the plaintiff. A trial was had to the court without a jury. There was a judgment for the defendant for costs. Plaintiff appeals.

— Hon. J. K. Johnson, Judge. Action to recover damages for an alleged unlawful arrest. A demurrer to the petition was sustained, and, plaintiff refusing to further plead, judgment was entered against her.

— Hon. Charles H. Phelps, Judge. Tins, action was originally brought against A. G-. Adams, and, upon his death being suggested, P. O. Adams, administrator, was substituted as defendant. Trial to a jury. Verdict for defendant. Plaintiff appeals. The facts appear in the opinion.

— Hon. John T. Stoneman, Judge. Action upon an injunction bond. There was a trial to a jury, and on motion of defendant the court directed a verdict for the defendant, to which plaintiff excepted. Plaintiff appeals.

— -Hon. C. H. Lewis, Judge. This is an action to recover a certain team of horses, the plaintiff alleging that he was the absolute and unqualified owner thereof by purchase; that the defendant wrongfully detained the same from him, claiming to have purchased the same from plaintiff.

<p>Chattel Mortgage: defective description :, good as to sheriff having ACTUAL NOTICE. The defendant in this case, as sheriff, levied upon a stock of goods upon which the plaintiff held a chattel mortgage. The goods were described in the mortgage as being on a certain lot and block, but were not otherwise'located. Held that, though this description was so indefinite that the recording of the mortgage would not impart constructive notice to the sheriff, yet, as he had actual notice, through his deputy, who levied the attachment, the mortgage was valid as against him, and he could not hold the goods.</p>

— Hon. C. H. Lewis, Judge. The plaintiff and defendant are owners of adjoining farms. This is an action in equity, by which the plaintiff seeks to enjoin the defendant from making a a ditch upon defendant’s land, which it is alleged will cause water to flow on the plaintiff’s land, to his injury. There was a trial upon the merits, and a temporary injunction which had been granted was dissolved, and the petition dismissed. Plaintiff appeals.

<p>Vendor and Vendee: specific performance : acceptance not in terms OF offer. Specific performance will not be decreed where there is uncertainty, ambiguity or doubt respecting the contract. (See opinion for authorities.) And so, where defendant wrote to plaintiff: “ Will give a warranty deed as title now stands at eight dollars per acre net to me,” and plaintiff replied: “We accept your offer without qualification. *• * * Notify us when and where to send money. We understand, of course, that you have L.’s title, and that you will place the same on record,” held that the acceptance was not an unconditional one in the terms of the offer, and therefore that there was no contract to be enforced. (Compare Sawyer v. Brossart, 67 Iowa, 678.)</p>

— Hon. George W. Wakefield, Judge. Action to quiet title to the right of way over certain lands belonging to the defendant. There was a decree for the plaintiff and defendant appeals.

<p>1. Appeal: less than $100: when certificate must be signed. Where a motion for a new trial was ruled upon at ten o’clock a. m., and a request was then made for á certificate for an appeal, but the certificate was not signed by the judge until three o’clock p. m. of the same day, held that it was not too late.</p> <p>2. Attachment; judgment by default : action on bond for wrongful SUING out. A judgment by default for plaintiff in an attachment case, upon personal notice to defendant, is not necessarily a bar to a subsequent action on the attachment bond for the wrongful suing out of the writ. It depends upon the grounds upon which it is claimed the attachment was wrongful.</p>

— Hon. G-eorgeP. Wilson, Judge. ¿Action upon a policy of insurance against loss by fire. Trial by jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. H. Henderson, Judge. Action to recover damage resulting to a valuable, highly bred mare from injuries caused by a wire fence to which she was exposed by the wrong and negligence of defendant in opening the fence enclosing the pasture wherein the mare was running.

— Hon. C. H. Lewis, Judge. Action to quiet the title of certain town lots in plaintiff. After a trial upon the merits, plaintiff’s petition was dismissed. It now appeals to this court.

— Hon. George W. Wakefield, Judge. The plaintiff commenced suit in justice’s court to recover seventy-five dollars, balance due for corn. The defendants admitted $63.99 due to plaintiff, and pleaded a counter-claim for $111.15. The plaintiff not appearing, the justice entered judgment dismissing his cause of action, and rendering judgment in favor of defendants for $24.44, from which the plaintiff appeals to the district court.

— How. G-eokge W. Wakefield, Judge. This is an action in equity, commenced to set aside the decree rendered and certain orders made in proceedings for the partition of real estate. The defendants appeared and filed a motion to strike from the petition, which was sustained. They then filed an answer, and the defendant Hedges filed a counter-claim. The plaintiffs were adjudged in default, and judgment was rendered against them.

— Hon. J. K. Johnson, Judge. Action upon a policy of insurance. There was a judgment on a verdict for plaintiff. Defendant appeals. The facts of the case appear in the opinion. The cause has before been in this court. See 72 Iowa, 597.

— Hon. Chaeles T. Geangee, Judge. Action by a county treasurer to recover an amount paid by Mm as compensation to a clerk for labor and services rendered in assisting kirn in tke discharge of Ms duties. Trial without a jury, and judgment for plaintiff. Defendant appeals.

— Hon. C. H. Lewis, Judge. This is an action in equity tp foreclose a mechanic’s lien for certain lumber furnished by the plaintiffs to the defendants for the erection of a livery barn. There was a decree for the plaintiffs. Defendants appeal.

<p>Appeal from Delaware District Court. — Non. John J. Ney, Judge.</p> <p>Action or a policy of insurance. There was a judgment for plaintiff, and the defendant appeals.</p>

— Hon. George W. Wakefield, Judge. Action in equity to recover the amount due on two promissory notes, and to foreclose a mortgage given to secure the payment of the same. A decree was rendered in favor of plaintiff as prayed. The defendants appeal.

C. H. Lewis, Judge. This is an action in equity, and it involves tlie title and ownership of eighty acres of land in Sioux county. There was a trial upon the merits, and the plaintiff’s petition was dismissed, and a decree entered quieting the title in the defendant. Plaintiff, appeals.

— Hon. D. Ryan, Judge. The plaintiff, being the owner in fee of certain adjoining lots, not exceeding five hundred dollars in value, asks to be quieted in her title thereto, as against a sheriff ’ s sale and deed thereof to defendant Blumenstein, on an execution against her in favor of one John Reisman. She asks this relief on the grounds that the property was and is her homestead.

— Hon. George W. Wakefield, Judge. Action to recover the value of certain corn alleged to have been wrongfully converted by defendant George P. Moorehead to his own use. R. B. Hillis intervened. There was a trial by jury, and a verdict in favor of defendant as against the plaintiff, and in favor of the intervenor as against defendant. Judgment was rendered in accordance with the verdict. Plaintiff appeals.

— Hon. John J. Net, Judge. Action to recover the undivided two-thirds of certain real estate of which Martin W. Francis died seized in 1860, leaving Izora A., his widow, and the plaintiff, his only child. Izora married the defendant William A. Burnside, April 5, 1865. Burnside was appointed guardian of the plaintiff, — then seven years of age,— and gave bond, and received letters of guardianship.

— Hon. D. R. Hindman, Judge. This is an action upon a policy of insurance against loss by fire and lightning. The case is before this court for the second time. See 71 Iowa, 337. Since the former appeal there was a trial by jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. S. M. Weaver, Judge. This is an action to rescind a contract in writing for the sale of real estate, and to enjoin the transfer and collection of certain promissory notes given under it, on the grounds that the contract and notes were procured by false and fraudulent representation. The case was submitted to the court, and there was a decree for defendants. Plaintiffs appeal.

— Hon. Charles T. Granger, Judge. This is an action in equity in the name of the state to enjoin and abate a nuisance which it is alleged the defendants maintained by the unlawful sale of intoxicating liquors. There was a hearing upon the merits, and a decree was entered against the defendant, and they appeal.

— Hon. J. L. Stevens, Judge. Action in chancery to foreclose a mortgage. By the decree in this case, the title of the land was declared to be in one of the defendants, under a purchase at a sale on a judgment which was held to be a lien upon the land prior to plaintiff ’ s mortgage, and that the defendant held the land free from the lien of plaintiff’s mortgage. The plaintiff appeals. The facts of the case appear in the opinion.

— Hon. B. O. Henry, Judge. Action in chancery to charge defendant, the Farmers and Traders’ Bank, as trustee, and for damages, and an accounting on account of breach of trust duties, and for general relief. The Home Insurance Company is sought to be charged on a policy which had been discharged in the settlement of certain actions thereon. Upon a trial on the merits, plaintiffs’ petition was dismissed. They now appeal to this court.

— Hon. S. M. Casey, Judge. This is a controversy between the parties as to the proper decree to be entered in an action which was formerly tried in the district court upon its merits, but appealed to this court, where it was reversed, and remanded for further proceedings. A decree was entered to which the defendants, the Clark County Bank, Neillsville Bank, and Hammell & Co. excepted, and from which they appeal.

Hamilton District Court. — Hon. S. M. Weaves, Judge. This is an action.at law to recover six hundred and forty dollars, aided by an attachment levied upon the defendant’s property at 10:15 o’clock p. m., July 20, 1887. Intervenor claims the property by virtue of an alleged general assignment to Mm as assignee for the benefit of the defendant’s creditors, filed for record at 5:50 o’clock p. m., on the same day. The case was submitted to the court without a jury.

— Hon. J. P.' Conner, Judge. Action to quiet the title of certain town lots, which plaintiff alleges are her homestead, as against the claim of defendant under a sale on execution. A decree granting the relief prayed for by plaintiff was entered in the court below. Defendant appeals.

— Hon. Henet Bank, Je., Judge. This is an action to recover the price of a bill of umbrellas sold by plaintiffs to defendant. The cause was tried to the court, and judgment rendered in favor of defendant. The plaintiffs appeal.

Avveal from Scott District Court. — Hon. Andrew How at, Judge. Action by a railroad employe to recover for personal injuries sustained through the negligence of a co-employe while engaged in operating a ditching machine used in connection with an engine and cars upon defendant’s railroad. There was a judgment on a verdict for plaintiff. Defendant appeals. The case has been before in this court. See 73 Iowa, 576.

— Hon. L. O. Hatch, Judge. Proceedings for the assessment of damages for the establishment of defendant’s right of way. Prom an assessment of damage by the jury in the district court the defendant appeals.

<p>Appeal from an order of Hon. J. K. Johnson, Judge, in a Habeas Corpus proceeding.</p>

— Hoít. Gr. W. Ruddick, Judge. The defendant was indicted for murder of tlie first degree. Upon tfie trial of the indictment the defendant was convicted of murder of the second degree, and from a judgment on the verdict he appeals.

— Hon. J. K. Johnson, Judge. This cause was before this court on a former appeal. See 71 Iowa, 297. When our decision was rendered on that appeal the cause was remanded for further proceedings, and by agreement was tried by the district court. From a judgment rendered in favor of inteyvenor the plaintiffs appeal.

— How. A. W. Wilkinson, Judge. The defendant and appellant is a corporation engaged in quarrying and shipping stone from its quarries at Red Rock, in Marion county. E. W. Wilson, the plaintiff, was employed by the defendant as a laborer in said quarries about December 1, 1886.

— Hon. J. P. Conner, Judge. Action in chancery to quiet in plaintiff the title to land. A demurrer to the answer of defendant was overruled, and, plaintiff standing on its demurrer, a decree was entered for defendant. Plaintiff appeals.

— Hon. Charles T. Granger, Judge. Action to set aside a mortgage from T. C. Johnson to the defendant. March 9, 1887, the plaintiffs commenced an action by attachment against J. H., T. C. and S. C. Johnson, co-partners, to recover on account.

— Hon. Dell Stuart, Judge. The defendant was indicted, tried and convicted for obstructing a street in the city of Ottumwa, and it appeals.

Appeals from Pottawattamie District Court. — Hon. C. P. Looebourow, Judge. Actions in attachment, brought before a justice of the peace. Judgments were rendered against the defendants and the garnishees. On appeal to the district court the garnishees insisted that the transcript of the justice of the peace showed a want of jurisdiction; but judgment was entered in the district court against the garnishees, from which they appeal.

— Hon. J. H. Macomber, Judge. Action to restrain defendant, who was a purchaser at execution sale, from removing or interfering with certain crops. There was judgment for the plaintiffs, and the defendant appeals.

— Host. A. B. Ti-iornell, Judge. Indictment for keeping a place where intoxicating liquors were kept for sale and sold contrary to law; trial to a jury; verdict of guilty; motion for a new trial overruled; judgment that defendant pay a fine of five hundred dollars, — to all of which defendant excepts, and from which judgment he appeals.

<p>Appeal from Mahaska District Court. — Hon. D. Ryan, Judge.</p> <p>Action to subject real estate to the payment of a judgment. There was a trial by jury, anda verdict and judgment for defendants. The plaintiff appeals.</p>

Appeal 'from Mills District Court. — Hon. A. B. Thoenell, Judge. Action to recover for land sold to the defendant town for an avenue. Judgment for defendant and • plaintiff appeals.

<p>Injunction: decree not warranted by pleadings and evidence : waters : appeal. Plaintiffs in this action sought to enjoin defendant from damming and polluting the water of a stream. The real grounds of their action were that defendant had no right to dam the stream, and that he had no right to permit hogs to have free access to it. The court rendered a decree enjoining defendant “from so damming or obstructing the natural flow of the water in the creek as that the same shall become stagnant and foul in any manner, so that the water shall be unwholesome for plaintiffs, stock.” Held—</p> <p>(1) That this was an adjudication in defendant’s favor that he had a right to dam the stream, and must be taken as the law of the case as against plaintiffs, since they do not appeal.</p> <p>(2) That since defendant had the right to dam the stream, and plaintiff did not complain of an abuse of that right resulting in the pollution of the water, but attributed the pollution to the fact that hogs were permitted to have access to it, and the evidence followed that theory, the decree restricting the right to dam was not warranted either by the pleadings or the evidence.</p>

— Hon. W. R. Lewis, Judge. The plaintiff asks a decree divorcing ber from defendant, and awarding her alimony and the custody of minor children. Her petition was dismissed on the merits on final hearing, and judgment rendered against defendant for costs. The plaintiff appeals.

— Hon. Gf-.W. Ruddick, Judge. Action before a justice of the peace in forcible entry and detainer. A demurrer to the petition was overruled by the justice of the peace on the ground that the petition does not show the three-days notice to quit required by Code, section 3614. This demurrer was renewed in the district court, and a motion to dismiss the cause, based on the same ground as the demurrer, was made by defendant and sustained.

— Hon. W. R. Lewis, Judge. Action for mandamus to compel the defendants to refund moneys paid in pursuance of taxes voted to aid in the construction of a certain railroad. There was judgment for the defendants, and the plaintiff appeals.

— Hon. John L. Stevens, Judge. This is an action to recover one hundred and ten dollars, which the plaintiff alleges the defendant received as an employe of plaintiff, and converted to his own use. The defendant answered by a general denial.

— Hon. David Ryan, Judge. This is an action afc law to recover damages for the alleged killing of a mare, the property of plaintiff, by one of tke trains of the defendant, while operating its railroad. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— How. W. F. Brannan, Judge. This is an action for the foreclosure of a mortgage executed by Peter Rogers to Scott & Clute, on the fifteenth day of February, 1886, upon certain real estate in Muscatine county. The mortgage was duly filed for record on the sixteenth day of February, 1886.

— Hon. S. H. Fairall, Judge. Action in equity, under chapter 66, Acts of Twenty-first General Assembly, to enjoin a nuisance. There is nothing on file in this court but the appellant’s abstract and argument.

— Hon. Charles M. Waterman, Judge. Plaintiff seeks to have established as preferred certain claims for rent. The defendant asks to have certain indebtedness allowed as a set-off against the claim of plaintiff. Plaintiff’s claims were established, but the set-off asked was not allowed. Defendant appeals.

— Hon. C. F. Looebourow, Judge. Certiorari to the defendants, as a board of equalization, to review their proceedings in assessing plaintiff’s property. Judgment for defendants, and plaintiff appeals.

— Hon. John J. Net, Judge. This action involves the right of the plaintiff to one hundred dollars, in the hands of Knapp & Co., defendants. The court held that the plaintiff was not entitled to the money, and he appeals. The facts appear in the opinion.

— Hon. J. H. Preston, J udge. Proceeding on the probate side of the court for the allowance of a claim against the estate of which defendant is the administrator. From an order allowing it defendant appeals.

— Hon. David Ryan, Judge. Petition by plaintiffs for a new trial under section 3155 of the Code. There was an order granting a new trial, and the defendants appeal.

— Hon. S. M. Weaver, Judge. Ti-ie plaintiff filed a claim against the estate of D. B. Kniglit, deceased. The defendant, F. A. Y. Knight, administratrix of the estate, demurred to the claim. The demurrer was sustained, and plaintiff appeals.

— Hon. D. Ryan. Judge. Action in chancery. The facts of the case, and the relief prayed for and granted, are stated in the opinion. Full relief, as prayed by plaintiff, not being granted, she appeals.

— Hon,. C. M. Waterman, Judge. Certiorari to the board of supervisors of Muscatine county, to test the legality of certain proceedings pertaining to the construction of a levee on Muscatine island, and the assessment of the costs thereof on lands benefited thereby. There was a judgment for the defendants, and the plaintiffs appeal.

— Hon. David Rvan, Judge. This suit was originally commenced before the mayor of the city of Oskaloosa. The venue of the action was changed to a justice of the peace, where there were two trials by jury, in both of which the jury failed to agree upon a verdict. Thereupon the counsel for the parties entered into an agreement to transfer the cause to the district court for trial.

— Hon. John L. Stevens, Judge. The plaintiffs are bankers, and they brought this action to recover of the defendant, who deposited money in their bank, an amount claimed to be due on an overdraft. The defendant denied that he at any time received from the plaintiffs more than he had deposited, and claims that the plaintiffs' did not pay to him the full amount of his deposits, and he claimed a judgment against the plaintiffs.

— Hon. C. P. Cough, Judge. Action to declare a certain place a nuisance, to abate the same, and for perpetual injunction, upon allegations that the same was being kept for the unlawful keeping and selling of intoxicating liquors.

— Hon. J. H. Henderson, Judge. Action on the official bond of P. J. Cowan, to recover an amount of money collected by him as treasurer of Hardin county, -and alleged to have been appropriated to his own use. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.

— Hon. S. M. Weaver, Judge. Action in chancery to settle a partnership. The relief prayed for by plaintiff was by a decree of the court denied, and the case retained for the purpose of requiring plaintiff, as the surviving partner, to account with the partnership and defendant. The plaintiff appeals.

— Hon. J. M. Casey, Judge. Plaintive sues to recover balance upon two promissory notes, — one dated September 29, 1878, due six months after date, for one thousand dollars; and one dated September 11, 1879, due on or before two years after date, for two thousand dollars.

— Hon. Charles H. Phelps, Judge Action of replevin to recover the possession of certain promissory notes. Plaintiff shows in his petition that he is entitled to the possession of the notes as the administrator of J. Ellouisa Forney, deceased, and sets up the grounds upon which defendant bases his claim to the possession of the property. .

— Hof. Charles H. Phelps, Judge. The plaintiff is the owner of eighteen acres of land within the corporate limits of the city of Burlington. In the year 1886 the city authorities assessed said land for taxation, and levied taxes thereon for city purposes. The plaintiff brought this action in equity, to enjoin the city and its treasurer from the collection of said taxes, upon the ground that said land was not subject to city taxes.

— Hon. A. B. Thornell, Judge. The defendant was indicted, tried, and convicted of the larceny of two horses, the property of one J. B. Fallon. Defendant appeals.

— Hon. J. J. Net, Judge. Action in equity to foreclose a lien on real estate, and to fix and limit the time of redemption therefrom by defendant. A decree was rendered for plaintiff as prayed, and defendant, Lucy Daniels, appeals.

— How. Soott M. Ladd, Judge. Aotiow at law to recover on account of the partial failure 'of the consideration of a contract to convey lands, and for fraudulent representations inducing the contract. A demurrer to the petition was sustained. Plaintiff appeals.

— Hon. S. M. Weaver, Judge. Action to recover damages alleged to liave been caused by the wrongful acts of defendant in polluting a stream of water. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. John L. Stevens, Judge. Action upon a promissory note. There was a judgment on a verdict for plaintiff. Defendant appeals. The case has before been in this court. See 73 Iowa, 546.

— Hon. J. H. Preston, Judge. Action-on the official bond of tbe defendant Wilds, as sheriff, alleging a breach of the conditions thereof. There was a judgment for the defendants, and the plaintiff appeals.

Jones District Court. — Hon. J. H. Preston, Judge. Action on the official bond of the defendant Wilds, as sheriff, alleging a breach thereof. There was a judgment for the defendants, and the plaintiff appeals.

— Hon. John J. Net, Judge. Action to recover the difference between the actual value of land purchased by the plaintiff of defendants and the value as shown by representations of defendants, inducing plaintiff to buy the land, which were false and fraudulent. An attachment was issued upon the grounds shown therefor in the petition, which, upon motion of the defendants, was subsequently dissolved. Afterwards a judgment upon a verdict for plaintiff was rendered.

— Hon. David By an, Judge. This is an action in equity, by which the plaintiffs seek to subject certain real estate, the legal title to which, is in the defendant Elizabeth Hart, to the payment of a judgment had by the plaintiffs against the defendant James H. Hart. There was a decree subjecting part of the property to the payment of six hundred dollars of the judgment.

<p>Appeal from Marshall District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action to recover for grain stored in defendants’ warehouse. Judgment for plaintiff, and defendants appeal.</p>

— Hon. Charles T. Granger, Judge. Action to recover possession of specific personal property owned by tbe plaintiff, and damages for its detention. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.

— Hon. W. F. Conkad, Judge. Action to recover from the defendant as a stockholder in the Des Moines, Osceola and Southern Eailroad Company. There was a judgment for the plaintiff, and the defendant appeals.

— Hon. S. M. Weaver, Judge. Action to recover for personal injuries sustained by plaintiff from alleged negligence of defendant’s employes while operating a train on its railroad. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Appeals from Muscatine District Court. — How. C. M. Watebmaw, Judge. The plaintiffs and appellants are the owners of land upon which assessments were made to pay for the construction of a levee on the west bank of the Mississippi river from a point in Muscatine county, near the city of Muscatine, to a point near Port Louisa, in Louisa county.

— TIon. W. R. Lewis, Judge. Action to establish the title to certain premises, and •quiet the same in the plaintiff. The defendant Ryan avers title to the premises in himself, asks that it be so decreed, and that he have possession thereof. There was a decree, as prayed, for defendant Ryan, and the plaintiff and the defendant bank appeal.

— How. A. B. Thornell, Judge. Action by an unmarried woman to recover for ber own seduction, which, was accomplished by declarations of love, and by promises of marriage, and acts which implied a promise of marriage. There was a judgment upon a verdict for plaintiff. Defendant appeals. The case has before been in this court. See 72 Iowa, 318.

<p>Appeal from, Fremont District Court. — Hon. A. B. Tiiobnell, Judge.</p>

<p>1. Original Matice: sufficiency : amount claimed. The original notice in this case, following the language of the note sued on, notified defendant that plaintiffs’ petition would be on file claiming of him “ one hundred and seventy-nine and thirty one-hundredths> with ten per cent, interest” from the date of the note, —the word “ dollars ” being evidently intended, but omitted. Held that it was not a case of no notice, but of irregular notice only, and that a judgment for so many dollars was not void. (Compare Wood-bury v. Maguire, 43 Iowa, 389, and Bunee v. Bunee, 59 Iowa, 533.)</p> <p>2.--: -: signature oe officer. The return of the original in this case showed personal service and was signed thus: ‘•By J. R. Myers, Deputy. J. W. Workman, Sheriff.” Held to be good, as showing service by Myers, as deputy, of Workman, sheriff.</p> <p>3. Appeal: errors which should be corrected below. Mere defects in an original notice properly served should be corrected by motion of the defendant in the court below, and do not warrant the defendant in making default and then appealing to this court. (See Code, sec. 3168.)</p>

— Hon. C. F. Loofboubow, Judge. Plaintiff seeks to recover the amount of a promissory note. Defendant alleges that it was made under duress, without consideration, and for an illegal consideration, and also pleads counter-claims. There was a verdict and judgment for plaintiff.' The defendant appeals.

J. H. Macomber, Judge. Action to quiet the titlé of certain lots in Ida Grove. There was a judgment for the plaintiff, and defendants appeal.

— Hon. GtEOboe H. Cabb, Judge. Action in equity to enjoin defendants from auditing, allowing or paying claims for the building of a bridge across a navigable lake. A demurrer to the petition was overruled, and, defendants refusing to further plead, a decree was rendered in favor of plaintiff as prayed. The defendants appeal.

<p>Mortgage: right of redemption from foreclosure sale : junior LIEN-HOLDER NOT MADE PARTY : STATUTE OF LIMITATIONS. Plaintiff claims title under a sheriff’s deed upon the foreclosure of a mortgage which fell due January 1,1877. On the same day defendants obtained a judgment lien on the land, but they were not made parties to the foreclosure. The deed under the foreclosure was dated September 19, 1879. In 1886, defendants caused execution to issue on then- judgment, and the land to be sold thereunder, and they purchased it, taking a certificate of sale on the eighth of February, 1887. In this action by plaintiff to quiet his title, held—</p> <p>(1) That defendants’ only right was to redeem from plaintiff, and that it was necessary to exercise that right within the ten years following January 1, 1877, after which their judgment ceased to be a lien on the land, under section 2882 of the Code. (See Gower v. Winchester, 33 Iowa, 303, and Crawford.v. Taylor, 42 Io-wa, 260.)</p> <p>(2) That their time for redemption was not extended, or their rights in any way enlarged, by the fact that the execution issued upon their judgment, and under which they purchased, was issued prior to January 1, 1887, the time when their lien expired, and their purchase of the land thereunder after that time.</p> <p>'(3) That the said limitation of ten years was pot prevented from running against'defendants by the fact that during a portion of the time the persons who held the title under the foreclosure lived in another state; the provision of the general statute of limitations, that it shall not run during the non-residence of the debtor, having no application to the duration of a judgment lien. (See Hendershott v. Ping, 24 Iowa, 134.)</p>

— Hon. Josiah Given, Judge. The defendant .company is a corporation organized and existing under the laws of the state of New York.

Action to recover for damages sustained by a fire alleged to bave been set out by the defendant in the operation of its road. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

— Hor. Johr T. Storemar, Judge. Action to recover the value of certain, property, which was destroyed by a fire set, as is alleged, by the operation of defendant’s railway. Judgment for plaintiff, and defendant appeals.

— Hon. J. P. Conner, Judge. Action to recover for hay burned by fires set out by engines operated upon defendant’s railroad. There was a judgment upon a verdict for plaintiffs. Defendant appeals.

— Hon. John L. Stevens, Judge. Action for personal injury caused by a train on defendant’s road. Judgment for plaintiff and defendant appeals.

— Hon. S. M. Weaver, Judge. This is an action in the nature of a quo warranto, by which the right of the defendants to hold the office of directors of the independent school district of Le Grand, in Marshall county, is called in question. An injunction was issued, and served upon the defendants, by which they were temporarily restrained from performing the functions of the office. The defendants filed an answer and a motion to dissolve the injunction.

— Hon.' H. E. Deemeb, Judge. Action in equity to recover the amount due on two promissory notes, and to foreclose a mortgage given to secure the same. There was a trial on the merits, and a judgment in favor of plaintiff as prayed. The defendant Kline appeals.

<p>Fire Insurance: breach of policy by additional insurance : NOTICE and consent : evidence. The defendant issued to plaintiff a policy of fire insurance for fifteen hundred dollars on a certain Sr v building, and the policy permitted other insurance to the extent of fifteen hundred dollars, and provided as follows : “ If the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, this policy shall be void; ” also, “ The managers of the company at Chicago are alone authorized to make any change or grant any privileges under this policy, and any indorsement or agreement varying the contract, made by any agent or sub-agent of the company, is void.” On the policy were indorsed the words: “Ducat and Lyon, Managers, Chicago, 111.” At the time the policy was issued there were two other policies in force upon the building, one for fifteen hundred dollars, and the other for two thousand dollars of which the company’s agent who transacted the business had notice; but it was the understanding that the two thousand dollars should be canceled, which, however, was never done. The fifteen-hundred-dollar policy expired a short time after the policy in question was issued, and plaintiff secured the same amount of insurance in another company. After doing this he notified the agent of defendant, through whom he had secured defendant’s policy, of that fact, and said : “ Shall I notify the companies, or will you?” This agent was also the agent for the company which carried the two-thousand-dollar risk. There was no evidence that plaintiff ever sought or secured, either through the local agent or the managers at Chicago, permission to carry more than fifteen hundred dollars additional insurance, and the property was burned before any additional premiums had been paid to defendant. In an action on the policy, Held—</p> <p>(1) That the failure or inability to get the two-thousand-dollar policy canceled according to the understanding did not operate as a permission from defendant to carry it in excess of the amount allowed by its policy, and that by carrying the excess the policy was rendered void.</p> <p>(2) That there was no evidence to be submitted to the jury on the question whether the defendant had consented to the excessive insurance, and that the court properly directed a verdict for defendant.</p>

Appeals from Palo Alto District Court. — Hon. G-eobge H. Cabe, Judge. These cases present substantially the same questions, and they will be determined in one opinion. They involve the validity of certain tax deeds upon four forty-acre tracts of land in Palo Alto county. The plaintiff is the owner of the patent title, and the defendants are the owners of the tax titles. The district court held that the tax titles were valid, and the plaintiff appeals.

— Hon. J. P. Conner, Judge. Action to recover the possession of specific personal property, or tbe value thereof, if it cannot be found, and damages for its detention. There was a trial by jury, and a verdict and judgment for plaintiffs. The defendants appeal.

— Hon. L. Q-. Kinne, Judge. Action in chancery to foreclose chattel mortgages. A decree was entered foreclosing the mortgages, and providing for the order of priority thereof. Defendant Lauderbaugh, whose mortgage is held to be last in the order of priority, appeals.

— Hon. George H. Carr, Judge. Action in chancery to foreclose a mortgage executed by defendant Abbey and wife. Goldthwaite and Humphrey Anthoney intervene, claiming title to the lands mortgaged superior to plaintiff’s mortgage. A decree was entered declaring plaintiff’s claim fraudulent and void, and that the title of the land is in the intervenors. The plaintiff and defendants appeal.

— Hon. A. B. Thornell, Judge. This is an action for the foreclosure of a mechanic’s lien, and the following agreed statement is taken from the abstract: “ It is admitted that at all times herein referred to the plaintiff [defendant Bowman ?] was the owner of the premises described in petition.

— Hon. J. P. Conneu, Judge. Action in equity to set aside certain tax deeds for the land described in the petition, to establish in plaintiffs a right to redeem from tax sales, and for other relief. The petition of plaintiffs was dismissed by the district court, after a hearing on the merits, and plaintiffs appeal.

— Hon. J. H. Preston, Judge. Action in equity to foreclose a mechanic’s lien. After a hearing on the merits the relief demanded against the City of Marion Water-Works Company was refused, and the plaintiffs appeal.

— Hon. George W. Wakeeield, Judge. Action for specific performance of contract for sale of lands. Judgment for the defendants, and plaintiff appeals.

— Hon. J. H. Preston, Judge. September 8, 1873, James Edminston died testate, leaving as his widow the plaintiff Margaret Ocheltree, who has since intermarried with the other plaintiff, William Ocheltree.

<p>Appeal from Mills District Court. — Hon. A. B. Thorwell, Judge.</p> <p>The plaintiff seeks to recover the value of a stock of goods and fixtures, of which, she alleges the defendants wrongfully took possession. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.</p>

<p>1. Contract s party : husband and wipe : evidence. Plaintiff, a married woman, under an oral contract which she alleged she made with her mother and her mother’s husband, took possession of and resided in the mother’s house, and maintained the mother and mother’s husband therein during the mother’s life, in consideration of having the property on her death. The mother’s husband lived with" her and was provided for and supported by plaintiff. Held that he must be regarded as a party to the contract, though he testified that he did not know of or concur in-it.</p> <p>2. Evidence: oral contract with one deceased. One who is in the possession of real estate and claims to own it under an oral contract with a former owner, since deceased, may testify to the oral contract under which he claims, as against one who is seeking to subject it to the satisfaction of a judgment against an heir of. the decedent. The judgment creditor in such a case is not one of the persons against whom section 3639 of the Code forbids such testimony.</p> <p>3. Homestead: alienation : oral contract consummated by abandonment. Plaintiff, a married woman, after having furnished her mother’s house, under an oral contract with her mother and her mother’s husband, took possession of it with her family, and thereafter supported her mother and her mother’s husband therein, in consideration of the property becoming hers at her mother’s death. It had been the mother’s homestead. Held that when plaintiff took possession it became her homestead, — the mother and her husband abandoning it in consummation of the contract, — and that the performance by plaintiff of her oral contract gave to her the right and equity to the property, notwithstanding section 1990 of the Code, requiring the husband and wife to concur in and sign the same joint instrument in order to convey their homestead.</p>

— Host. Marcus Kavanagh, Judge. Action at law to recover the amount of two drafts drawn on and alleged to have been accepted by defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. John T. Stoneman, Judge. Action to recover damages for personal injuries sustained by plaintiff, for which defendant is alleged to be responsible.' There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. R. C. Henry, Judge. The plaintiff is tlie administrator of the estate of B. O. Davidson, deceased. In February, 1875, B. O. Davidson made to the defendant his note for three hundred dollars, and secured the payment thereof by a chattel mortgage. The note and mortgage were after-wards transferred to one Daniel Miller.

Host. A. B. Thorn ell, Judge. This is an action for damages alleged to nave oeen sustained by the plaintiff by reason of the negligence of the defendant in the shipment of two car loads of horses from Chicago, Illinois, to Sanborn in this state. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. Mabcus Kavanaoh, Judge. Action by equitable proceeding wherein the plaintiff asks to subject certain real estate, the title to which is in defendant Melissa Millsap, to the payment of a judgment against the defendant Albert Millsap. Decree was entered in the district court in favor of the plaintiff, and defendants appeal.