Volume 79 — Iowa Reports

— Hon. H. E. Deemer, Judge. Action to recover amounts alleged to be due on three promissory notes made by T. M. Lloyd, and for the foreclosure of a mortgage given to secure their payment. There was a trial on the merits, and a decree for plaintiff. Defendants T. M. Lloyd and Martha Lloyd appeal.

<p>Appeal from Shelby District Court. — Ros. George Carson, Judge.</p> <p>Action for breach of contract to deliver a carload of potatoes. Judgment for defendant, and plaintiff appeals.</p>

— Hon. L. O. Hatch, Judge. The plaintiff, lor cause of action, alleges that the defendant was the owner of a vicious bull, and that, knowing it was vicious, and accustomed to attack mankind, he unlawfully permitted it to run at large; that on December 24, 1886, the plaintiff, while passing along a public highway, using due care, was attacked by said bull, so running at large, and was gored, bruised, wounded, and had three ribs broken, by said bull, by reason of which…

— Hon. L. O. Hatch, Judge. The plaintiffs and the defendants were members of an organization known as the “Bradford Township Creamery Association,” which was organized and commenced business in the spring of the year 1883.

— Hon. J. I). Gieeen, Judge. Action to enjoin defendant, as road supervisor, from removing a certain fence. The defendant demurred to plaintiff’s petition on the grounds that the facts stated did not entitle the plaintiff to the relief demanded. This demurrer being sustained, the plaintiff appealed; and on the appeal the ruling of the district court was reversed, and “the cause remanded for further proceedings in harmony with this opinion.” Bolton v. McShane, 67 Iowa, 207.

— Hon. Gf. M. Gilchrist, Judge. “The facts, as shown by the record, are that L. G. Beal, one of the plaintiffs, was surety on a note of some eighty dollars for J. S. Hunter, and payable to Crofutt. The principal not being able to pay, Mr. Beal, who resides at Gilman, drew his draft on Everingham & Co., payable to the order of C. J. Stevens, the defendant, and sent it by Hunter to the Montour Exchange Bank, where defendant was supposed to be.

— Hon. L. G-. Kinne, Judge. Application by the widow of Henry Newans for an appropriation from the estate of decedent for her support for the term of one year. An order was made directing the executor of said estate to pay to plaintiff the sum of three hundred and twenty-five dollars for the purpose stated. Defendants appeal.

— Hon. L. O. Hatch, Judge. This is an action in equity by which the plaintiffs seek to set aside and annul a deed of certain real estate which was executed by James D. Fitch to the defendant, Martha M. Reiser. The plaintiffs and the defendant are the children of said Fitch. Upon a final hearing upon the merits the district court granted the prayer of the petition, and annulled the deed. Defendant appeals.

— Hon. George H. Carr, Judge. Action in two counts. In the first, plaintiff asks to recover the contract price on a written contract for the construction of cells and other iron work alleged to have been put into the jail of the defendant county, and accepted by tbe defendant. In tbe second count, plaintiff asks to recover the reasonable value of the same, as having been furnished at the request of the defendant.

— Hon. H. E. Deemeb, Judge. Defendant was indicted and tried for the crimé of nuisance, and found guilty. He was adjudged to pay a fine of three hundred and fifty dollars, an attorney’s fee and costs. From that judgment he appeals.

—Hon. Geo rue Carson, Judge. This is an action of replevin for two mules, a wagon and harness. The plaintiff is the wife of Peter Pearson, who was the defendant in execution on a judgment owned by the defendant Martin. The defendant Quist was a constable, and he levied the execution on the property in controversy.

— Hon. A. Ho wat, Judge. Action to recover damages for a personal injury to the plaintiff, alleged to have been caused by the negligence of the defendant in the operation of its railroad, without fault or negligence on thp part of the plaintiff contributing thereto.

— Hon. H. E. Deemer, Judge. The issues in this case involve the ownership of certain personal property levied upon at the instance of plaintiff, as the creditor of John Finkin. Intervenor avers that he owns the property, and asks its release from the levy. Judgment for plaintiff, and intervenor appeals.

— Hour. J. H. Preston, Judge. Action in equity for tbe partition of real estate. There was a trial by the court, and a decree for the plaintiff. The defendants appeal.

'Appeal from Warren District Court. — Hon. J. H. Henderson, Judge. Action for divorce and alimony upon the alleged ground of inhuman treatment endangering life.

<p>Tax Sale and Deed: notice to redeem : person to whom land is taxed. Where land sold for taxes is taxed to an unknown owner when the notice to redeem, required by section 894 of the Code, should be given, no notice is required. (See opinion for citations.) And where, at the time for giving such notice, the land was taxed to an unknown owner, but the holder of the tax-sale certificate had paid the taxes, and the treasurer, after his custom, had entered his name opposite the description of the land in the tax list, in the column of owners’ names, this did not amount to a taxation of the land to him, and he was not required to serve notice upon himself of the expiration of the time for redemption, in order to make valid his tax deed for the land.</p>

— Hon. George Carson, Judge. The plaintiff claims to be the owner of a lot in the city of Council Bluffs: and;she brought this action against the defendant to recover the damages which she alleges she sustained by reason of the laying down of railroad tracks partly on the street adjacent to said lot, and partly upon said lot. The defendant answered the petition by a general denial.

— Hon. C. M. Waterman, Judge. Defendant was convicted of the crime of assault with intent to commit rape, and sentenced to imprisonment in the penitentiary for the term of five years. He appeals.

— Hon. W. R. Lewis, Judge. These several cases, involving the same questions, are submitted together. They are actions to recover back part of money paid by the plaintiffs, respectively, to the defendant, at different times, as freight charges on carloads of cattle shipped by plaintiffs from Jasper county, Iowa, to Chicago, Illinois.

— Hon. James D. Gieeen, Judge. Defendant was indicted and tried for the crime of nuisance. He was convicted, and adjudged to pay a fine of three hundred dollars and costs. Prom this judgment he appeals.

— Hon. J. H. M a comber, Judge. This is an action in equity by which the plaintiff seeks to restrain the defendants from opening fences upon plaintiff’s land, and traveling across the same, upon a claim made by the defendants that there is a public highway over and upon the premises. There was a full hearing upon the merits, and a decree was entered for the plaintiff. Defendants appeal.

— Hon. J. P. Conner, Judge. Prior to June 5, 1871, the defendant district was included in that of the plaintiff, and known as the “ District… Held: on the thirteenth day of April, 1872, at the court house in Carrroll, for the purpose of dividing the assets and liabilities, and adjusting all claims and differences between the said townships, it was resolved that the district township of Arcadia hereby assumes and agrees to pay one hundred and twenty-nine seven hundred and…

— Hon. J. P. Conner, Judge. This action is, in all essential particulars, like that of District Twp. of Carroll v. District Twp. of Arcadia, ante, p. 96, the defendant district in this case having been formerly a part of the plaintiff district; and, after separation, a contract was made for the payment of indebtedness as in the former case, except that it differs in amount, and some few particulars not essential.

— Hon. Lot Thomas, Judge. Action in chancery to foreclose a chattel mortgage. There was a decree rendering j ndgment against two of the three defendants, but no foreclosure of the mortgage. Both parties appeal, the plaintiffs first.

— How. H. E, Deemeb, Judge. Action to recover damages sustained by plaintiff from injuries to Ms horse, caused by defendant’s negligence in constructing a culvert under a street of the city, which caused the deposit of impediments in the street. There was a verdict and judgment for defendant. Plaintiff appeals.

— Hon. C. M. Waterman, Judge. Defendant was tried in justice’s court on an information which accused him of “wilfully and unlawfully interrupting and disturbing a school,” and convicted. He appealed to the district court, and was again convicted. From the judgment rendered in the district court he appeals.

— Hon. J. P. Conner, Judge. Action on a contract executed by defendant in the following words: “Whereas, Thos.

Ameal from Warren District Court. — Hon. W. H. McHenry, Judge. The defendant was indicted for the crime of seduction, and on arraignment pleaded not guilty. Trial to a jury. Verdict of guilty. Defendant’s motion for new trial overruled, and judgment on the verdict. Defendant appeals.

— Host. L. G. Kinhe, Judge. This is an action at law to recover judgment for certain hay sold by the plaintiffs to the defendant. The defendant, by answer and counter-claim, averred that he had more than paid for the hay actually delivered to him, and demanded judgment against the plaintiffs. There was a trial by jury, and a verdict and judgment against the plaintiffs. They appeal.

— Hon. D. J. Leneiian, Judge. On the twenty-fifth day of August, 1886, the plaintiff, a citizen of Dubuque county, filed his petition charging that the defendant, at the city of Dubuque, “in a brick building at numbers 154 and 162 Sixth street, has established a saloon and place for the keeping and sale of intoxicating liquors” in violation of law, and has, since the eighth day of April, 1886, in said saloon, sold to divers persons intoxicating liquors contrary to law, and…

— Hon. E. E. Atlesworth, Judge. Action upon an account. Defendant in his answer denied indebtedness, and set up a counter-claim for damages on account of the breach of a contract for the sale of certain goods. The case was tried without a jury, and judgment rendered for plaintiff. Defendant appeals.

— Hon. J. H. Preston, Judge. This is an action in equity by which the plaintiff seeks to set aside and annul a sheriff’s deed for a house and lot in the city of Marion, upon the ground that said property is the homestead of the plaintiff, and that the judgment upon which it was sold by the sheriff was no lien upon the premises, and the same were exempt from levy and sale. A hearing was had upon the merits, and a decree was entered for the defendants. Plaintiff appeals.

— Hon. J. H. Preston, Judge. Action in equity for the rescission of a contract for tlie sale of real estate and for general relief.

— Hon. George H.' Garr, Judge. Action to recover an amount alleged to be aue on account of the sale of real estate. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— I-Ion. J. H. Maoomber, Judge. Action upon an official bond against the principal and sureties. The cause was tried without a j ary, and judgment was rendered for plaintiff. The sureties appeal

— Hon. O'. B. Aykes, Judge. ' The district court certifies to this court the following question, upon which it is desirable to have the opinion of the supreme court: “ Is a father legally liable to a physician for the latter’s services in professionally treating the minor daughter of said father, dangerously attacked with typhoid fever, who, at the date of said treatment, was seventeen years of age, and was then, and had been, residing away from her father’s house for three…

— Hon. John T. Stoneman, Judge. This is an action to recover damages for a personal injury which the plaintiff received by jumping from a moving railroad train on defendant’s road at Fairfax station, in Linn county. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. A. B Thornell, Judge. Action to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment for defendants. Plaintiffs appeal.

— Hon. Marcus Kavanagh, Jr., Judge. Action by an attorney at law to recover for professional services and money advanced for defendant’s benefit. Defendant denied the allegations of the petition, and pleaded a counter-claim for money received by plaintiff for her use. A verdict was had for plaintiff in a small sum, which, on motion of defendant, was set aside. Plaintiff appeals.

— Hon. R. C.. Henry, Judge. This is an appeal by the defendant from certain orders made by the court below in proceedings auxiliary to execution. The facts appear in the opinion.

— Hon. S. H. Fairall, Judge. The heirs, legatees and devisees of John S. Gable, deceased, filed their petition in the district court of Tama county, sitting as a court of probate, praying that the executor of the estate of said deceased, appointed by said court, be ordered to make distribution of the assets in his hands, as required by the will of the testator. An order, as prayed for by the petition, was made.

— Hon. James D. Gíteeen, Judge. Proceeding in probate, in which Matilda Peet, as widow of J. M. Peet, deceased, seeks an allowance for support under the provisions of the statute. The estate of J. M. Peet, at his death, consisted of upwards of thirty thousand dollars, mainly of notes and real estate. By the terms of his will the petitioner was to receive, while she remained his widow, the interest of three thousand dollars.

— Hon. C. P. Couch, Judge. Action in equity asking certain foreclosures, and for other relief. The case was submitted upon the issues joined on plaintiff ’ s substituted and supplemental petitions, and the answers of the defendants thereto, and decree entered in favor of the plaintiffs, from which the defendants Snyder Bros., H. P. Snyder, J. M. Snyder, and A. N. Woods, assignee of Snyder Bros., appeal.

— Hon. J. H. Macomber, Judge. Appeal by D. Carr Early from a judgment rendered against him, and in favor of A. B. Bruner and C. M. Wickersham. The material facts involved in the case are stated in the opinion.

— Hon. James D. G-ieeen, Judge. Action to recover for injuries to plaintiff’s horse and buggy, caused by the dangerous condition of a street in the defendant city upon which he was driving his horse and buggy. There was a judgment and verdict for plaintiff. Defendant appeals.

— Hon. Marcus Kavanagh, Jr., Judge. This is a proceeding in probate by which the plaintiffs, who are the heirs-at-law of Samuel Hedges, deceased, demanded the cancellation and setting aside of an order of the court by which a claim of the defendant John M. Day was allowed and established against the estate.

— Hon. John L. Stevens, Judge. Action to recover possession of thirty-seven head of steers, claimed by virtue of a chattel mortgage from L. M. Fisk & Son to plaintiff. Defendant answered, denying each and every allegation in the petition. Trial to a jury. Verdict and judgment for plaintiff.

— Hon. .Tostad Given, Judge. Action for breach of contract in the sale of certain seeders, in which the court, without the intervention of a jury, found the following facts : “ First. That prior to October 14, 1884, the firm of Young Bros., the plaintiff’s assignors, were a copartnership engaged principally as manufacturers’ agents in the sale of agricultural implements throughout the state of Iowa, having their place of business at the city of Des Moines, in said state.

— Hon. J. H. Preston, Judge. Action to recover for personal injuries alleged to have been sustained by plaintiff in consequence of negligence and wrongful acts on the part of defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. L. Gh Kinne, Judge. Action to recover a balance alleged to be due for lumber sold and delivered. Defendant pleaded a counter-claim. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.

— Hon. John W. Harvey, Judge. The defendant, John Jamison, *was, in 1884, the recording agent of the plaintiff at Seymour, Iowa, having authority to issue policies. It was his duty, and he was instructed, to make to the company a daily report of all the policies issued by him, giving a full and complete description of the policy, as well as the property insured.

<p>Appeal from Polk District Qourt. — Hour. Marcus Havana gh, Jr., Judge.</p> <p>Action of mandamus. A demurrer to the petition was sustained, and plaintiff appeals.</p>

<p>1. Appeal: bill of exceptions : what sufficient: reporter's NOTES. Where the short-hand reporter’s notes in a law action are ordered to be made a part of the record, and they are duly certified by the judge, on the day of the verdict, as containing all the evidence offered or introduced, and all the objections and rulings made and exceptions taken, this constitutes a sufficient bill of exceptions; and it is immaterial that the translation of the notes is not filed within the time allowed for taking an appeal. (See opinion for citations.)</p> <p>2. Sale : partnership : evidence : admissions. In an action against defendants jointly, though not as partners, when one of them claimed to have had nothing to do with the purchase declared on, evidence was properly admitted to the effect that he had stated in plaintiff’s presence that he and the other defendant were partners in the business for which the purchase was made; also evidence that he had made similar admissions when plaintiff was not present.</p> <p>3. Instruction: stating issues. The court instructed: “You will observe that the defendants do not deny that the plaintiff did sell the number of brick claimed, and at the price claimed.” Defendants did not in their answer admit the price, but there was no controversy on the trial, and no conflict in the evidence, in regard to the price. Held that, as applied to the entire case, the instruction was correct.</p> <p>4. Appeal: reversal: nominal damages. This court will not reverse a judgment on the ground that mere nominal damages were not allowed the appellant.</p> <p>5. Pleading: clerical error: cured by other averments. Where the petition alleged that there was due from defendants to plaintiff a certain sum, with interest from October 1, 1888, but the other averments, and the evidence, showed that the property, the price of which was sought to be recovered, was sold and delivered about October 1, 1883, and the prayer of the petition asked for interest from that date, the date first named was properly discarded as a clerical error, and a verdict and judgment rendered in accord with the prayer of the petition.</p>

— Hon. Mabcus Kavanagh, Jb., Judge. Action to recover for false and fraudulent representations made by defendants’ agents as to the character, condition and value of a tract of land, whereby plaintiffs were induced to enter into a contract for the exchange of other real property for it. There was a judgment upon a verdict for plaintiffs. Defendants appeal.

— Hon. J. P. Conner, Judge. Action to recover eighty dollars and interest, the value of seven hogs, shipped upon defendant’s road, which died for want of proper care by defendant. There was a verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. P. Conner, Judge. On August 24,1877, the plaintiff Devin was the owner of lot number 177, block 23, in the town of Jefferson, Greene county, Iowa, and on that day he conveyed the same to the defendant J. A. Thompson, in pursuance of a verbal agreement by which Thompson was to pay twelve hundred dollars for the lot, one hundred dollars of which he then paid in cash, and for the balance executed and delivered' to Devin his seven promissory notes.

<p>Appeal from PolTc District Court. — .Hon. Josiah Given, Judge.</p> <p>Action in equity to quiet title. There was a trial on the merits, and a decree for plaintiff. The defendants appeal.</p>

— Hon. John C. • Shebwin, Judge. Action to recover damages alleged to have been sustained by reason of breach of warranty in the sale of machinery. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. Josiah Given, Judge. This is a contest between tbe creditors of A. T. Johnson & Son, a partnership formerly engaged in the omnibus and transfer business. The partnership failed on September 12, 1888. Its property was seized by writs of attachment, and the intervenors, McFarland and Nourse, claimed liens upon part of the assets by virtue of certain chattel mortgages. A trial was had, and said chattel mortgages were held to be invalid as to the other creditors.

— Hon. W. F. Conrad, Judge. On petition of tke administrator for an order to sell real estate to pay debts.

<p>1. Sureties: collateral security : “control” of implies delivery AND ACCEPTANCE. In an action against- the surety upon a promissory note, the defense was that defendant was discharged by reason of the surrender by the plaintiff to the principal debtor of certain bónds which it held as collateral security; and the court instructed that if plaintiff “ controlled” such bonds at the time the note was executed, as security for the debt secured by the note, and afterwards surrendered them without defendant’s consent, then defendant was discharged. Held that the word “ controlled,” as used, implied a delivery of the bonds to plaintiff and an acceptance of them by it.</p> <p>2.’ -: DISCHARGE BY SURRENDER OF COLLATERALS : PAYMENT OF debt by note. The giving and accepting of a promissory note for. a prior debt will not be regarded as payment thereof, unless there be an agreement of the parties to that effect (see opinion for citations); and where the note is signed by one as a surety, and the creditor at the time holds collateral security for the debt, the agreement to make the note an absolute payment of the debt, so as to justify the creditor in surrendering the collateral security held for that debt, must, in order to bind the surety, be assented to by him; otherwise the surrender of the collaterals without his consent will release him from obligation as surety.</p> <p>S. Practice: sending jury back to amend answer to question. Where a jury misconceives the true import of a special interrogatory, and fails to answer it according to its true intent, the court may submit a supplementary interrogatory and send the jury back to answer it. (See opinion for citations.)</p> <p>4.. Evidence-: record of testimony at former trial. The record of the testimony of witnesses at a former trial is admissible in a subsequent trial of the case, where the witnesses reside in a county of the state other than that in which the trial is pending. (See opinion for statutes and cases cited.)</p> <p>5. -; copies of mortgage records. Duly authenticated copies of the record of mortgages and conveyances are 'admissible as tending to show the insolvency of the grantor therein.</p> <p>6. Sureties: discharge by surrendering collaterals : to what extent discharged : other sureties. Where a note with a surety is given for a portion of a prior debt, for which the creditor holds bonds secured by mortgage as collateral security, and he surrenders such collaterals without the surety’s consent, the surety is discharged to the extent of the value of the bonds so surrendered; and such value is to be determined in the county where the mortgaged land lies, rather than in that where the trial is pending, and is to be estimated at the time of the surrender, and not at the time of trial; and the fact that there are other sureties on other notes given to secure portions of the same prior debt, which sureties are not in the case, does not affect the surety's right to be discharged to the full value of the surrendered bonds.</p> <p>7. -:--: estoppel to deny value. In such case, where the creditor has recognized the value and validity of the collaterals, and has received money thereon, which should have been applied on the secured debt, he cannot claim that the surety should not be released, on the ground that the bonds were issued in excess of corporate power, and, therefore, were invalid and of no value.</p>

— Hon. C. F. Loofbourow, Judge. Action of replevin. There was a judgment on a verdict for plaintiff. Defendant appeals. This cause has before been in this court. See 69 Iowa, 167.

<p>Appeal from Lee District Court. — Hon. J. M. Casey, Judge.</p> <p>Proceeding to punish for contempt. From a judgment discharging defendants the plaintiff appeals.</p>

— Hon, J. K. Johnson, Judge. Action in equity for ttie adjudication of title to real estate. The facts are stated in the opinion.

<p>Criminal Law: costs : mileage of defendant’s voluntary witnesses. Defendant’s father, at request of defendant’s counsel, came from Dakota to Iowa to testify, and he did testify, in the defendant’s behalf, on the trial of a criminal prosecution against defendant. He was not subpoenaed, but his name was included in the list of witnesses which the defendant was authorized to subpoena, by an order of the court made under chapter 207, Laws of 1880. Held that he was entitled, upon defendant’s acquittal, to have costs taxed up against the county for his daily attendance, but to nothing for mileage. (Westfall v. ■ Madison County, 62 Iowa, 427, distinguished.)</p>

— Hon. H. C. Traverse, Judge. Defendant was tried without a jury, and convicted upon an information charging him with the crime of gambling, brought upon appeal from a justice of the peace.

<p>Appeal from Appanoose District Court. — Hon. Dell Stuart, Judge.</p> <p>Action to recover upon a contract whereby defendant agreed to pay to plaintiffs rebates at the rate of $19.50 per car upon twenty-nine carloads of live stock shipped by plaintiffs over defendant’s railroad. There was a judgment upon a verdict for plaintiffs. Defendant appeals. The cause has before been in this court. See 75 Iowa, 361.</p>

— How. G-eorge W. Wakefield, Judge. The issues involve a question of the priority of the liens of tlie respective parties; the necessary facts as to the liens of each being as follows : One B. F. Lauber, being the owner of two hundred and forty acres of land, was indebted to the plaintiffs in the sum of forty-seven hundred dollars, and, for the purpose of securing the debt, Lauber made to the plaintiffs a bond for a deed of the premises in question on the eighth day of June,…

— Hon. C. F. Couch, Judge. On July 14, 1885, Nellie Groodwin and her husband executed and delivered to E. W. Burnham a mortgage lor thirty-one hundred dollars, covering what is known as “Burnham’s Opera House,” in Waterloo, Iowa, and securing the payment or three promissory notes, as follows : One for one thousand dollars, due August 1, 1886; one for one thousand dollars, due August 1, 1887; and one for eleven hundred dollars, due August 1, 1888.

— Hon. Josiah Given and Hon. Marcus Kavanagh, Jr., Judges. Action to recover for money paid, and for damages alleged to have been sustained by reason of a breach of contract to lease certain property. The answer sets up various defenses, alleges a mistake in the contract upon which the action is brought, and demands that it be reformed. The equitable issue was tried by the court, Given, J., presiding, and a decree rendered in favor of the plaintiffs.

— Hoít. L. O. Hatch, Judge. Defendant was indicted and tried ior the crime of nuisance, alleged to have been committed by obstructing a public highway, and was acquitted. The state appeals.

— Hon. Andrew Ho wat, Judge. From a judgment of the district court sustaining a motion to quash an indictment for a saloon nuisance, the plaintiff appeals.

— Hon. Gf.W. Ruddick, Judge. The plaintiff filed Ms petition, November 10, 1887, asking judgment against the defendant Smith, on two notes falling due, respectively, December 20, 1887, and February 20, 1888, which he alleges were given for the balance of the purchase price of certain lands described, and praying for a vendor’s lien thereon; and also alleging “that nothing but time is wanting for both of said notes to become due and payable.” No original notice was ever…

— TIon. John L. Stevens, Judge. Action upon a policy of insurance, insuring certain chattel property against loss by fire or lightning.

— Hon. Scott M. Ladd, Judge. Píaintifí' sold lot 1, block 5, in the city of Le Mars, to defendant Joseph W. Hough, for the agreed price of five thousand dollars. Hough executed five promissory notes, of one thousand dollars each, for the price, and to secure the same gave a mortgage on the property; also upon lot 9, in block 33, in Le Mars. ;The mortgage specified that the last-named property i! was pledged as security only for the note first falling due.

— Hon. Marcus Kavanagh, Jr., Judge. Action to recover damages resulting from personal injuries for which defendant is alleged to be responsible. There was a trial by jury, and a verdict for plaintiff for the sum of twenty-four thousand dollars.

— Hon. A. J. Leeeingwell, Judge. This action was brought by the plaintiff, Joseph Story, as assignee of one John Powers, to . recover damages for the value of certain horses which it is alleged were killed and injured on the line of the defendant’s railroad by reason of the negligent operation of a locomotive engine and train of cars. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. L. Cr. Kinne, Judge. Petition in probate to compel payment of a legacy. In the last will and testament of Albert Petranek, deceased, it is provided among other things as follows : I hereby give, devise and bequeath to Franz Sevcik and Fred.

— Hon. Charles D. Leggett, Judge. Defendant entered a plea of guilty to an indictment which, charged him with the crime of nuisance, committed by violating the law in regard to the sale of intoxicating liquors. He was adjudged to pay a fine of one thousand dollars, and to be imprisoned in the county jail in default of payment. From that judgment he appeals.

— Hon. Chas. H. Phelps, Judge. Action to recover for personal injuries sustained by plaintiff through defendant’s negligence while engaged in operating machinery in defendant’s manufactory. Upon the close of plaintiff’s testimony the district court, upon the oral motion of defendant’s counsel, directed a verdict for defendant. Plaintiff appeals.

— Hon. Henry Bank, Jr., Judge. Action to recover damages for loss of property by fire. A demurrer to the petitiou was sustained; and, plaintiff refusing to further plead, -judgment was rendered in favor of defendant for costs. Plaintiff appeals.

— Hon. Marcus Kavanagh, Jr., Judge. Action to recover damages for tlie repudiation by defendant of a contract to build a school house, whereby, and by other acts, plaintiff was prevented from performing such contracts. A judgment'was rendered upon a verdict for plaintiff. Defendant appeals.

— Hon. George W. Wakefield, Judge. L. and C. Andrews were the owners of five carloads of cattle on which the defendant firm held a mortgage to secure an indebtedness due from Andrews to it. The Andrews were also indebted to the plaintiff in the sum of $283.92 for feeding said cattle.

<p>Appeal from, Harrison District Court. — Hon. George W. Wakefield, Judge.</p> <p>Indictment for fraudulent banking. From a judgment against defendants, they appeal.</p>

— Hon. O. H. Lewis, Judge. Proceeding by certiorari to determine tke legality of defendant’s action, as judge of the district court in and for the county of Monona, in granting a new trial in a certain action.

— Hon. O. B. Ayres, Judge. Quo warranto to determine the right of defendant to fill the office of justice of the peace. The cause was tried without a jury, and judgment was rendered for the state, ousting defendant from the office. He now appeals.

<p>1. Criminal Law: “ aiding and abetting.” The word “ abet,” used in relation to the commission of a crime, indicates the act of an accessory before the fact, while the word “ aid” indicates the act of an accessory after the fact. An accessory before the fact may be indicted, punished and tried as a principal (Code, sec. 4314); whether the same is true of an accessory after the fact, is not determined.</p> <p>a. -: LARCENY : AIDING IN DISPOSING OF PROPERTY : INSTRUCTION. One who aids in the disposition of stolen property is not thereby guilty of larceny, either as principal or accessory, unless he knows the property to have been stolen; and an instruction under which the jury might have found defendant guilty without such knowledge is a ground for reversal, even though the abstract does not contain all the evidence; for it cannot be presumed that his guilty knowledge was established by the evidence.</p>

— Hon. J. H. Preston, Judge. The defendant was arrested on information before a justice of the peace, charged with being intoxicated. The information upon which the warrant issued was filed by George Heppenstall and Levi Pilkinton. At the trial before the j'ustice the defendant was convicted, and from a judgment he appealed to the district court, in which he was acquitted.

— TIon. L. GK Kinne Judge. Actions to determine the right of the defendants, respectively, to exercise the office of director of the independent district of Montour, Tama county, Iowa. This district was organized in 1872, and, having a population of five hundred or more, six directors were elected and qualified, and two were elected and qualified each year thereafter, without question, until 1888.

— Hon. J. L. Stevens, Judge. Action upon a bail-bond for the appearance of Benzion to answer to an information filed before a justice of the peace charging him with a misdemeanor. Horton, the surety in the recognizance, demurred to the petition. The demurrer was overruled, and the surety appeals.

Appeals from Polls District Court. — Hon. W. H. McHenry, Judge. The defendant in each case was convicted upon an indictment for maintaining a nuisance by keeping a place for the unlawful sale of intoxicating liquors. Each defendant appeals to this court.

— Hon. Scott M. Ladd, Judge. Defendant was convicted oí the crime of obtaining money by false pretenses. He was adjudged to be imprisoned in the penitentiary at Fort Madison for the period of twenty-one months, and from that judgment he appeals.

— Hon. C. F. Looebourow, Judge. On September 27, 1886, the petition was filed, charging that defendants were engaged in the business of keeping intoxicating liquors with intent to sell the same within ¡the state, in violation of law, upon the premises described, thereby causing and continuing a nuisance; and asking a temporary writ of injunction, and, on final hearing, that defendants be perpetually enjoined from carrying on said nuisance, that the same be abated, and for…

— Hon. J. P. Conner, Judge. Action upon a bail-bond against defendants as sureties thereon for the appearance in the district court of one held to answer for a larceny by a justice of the peace. The bond is substantially in tbe form required by Code, section 4574. The cause was tried without a jury and judgment rendered for tbe state. Defendants appeal.

— Hon. Marcus Kavanagh, Jr., Judge. George A. Smith was attorney for plaintiff in its suit against Briley, in which an attorney’s fee was entered for $2.05. Briley was insolvent, and the judgment is unpaid.

— Hon. H. E. Deemer, Judge. Action to recover for personal injuries sustained by plaintiff by reason of the negligent construction of the approach to a county bridge. There was a verdict and judgment for plaintiff. Defendant appeals.

— Tíois. Charles D. Leggett, Judge. Plaintiff commenced tipis action in equity for the partition of real estate in which, intervenors claim an interest. The court found that a partition of the premises was not practicable, and ordered them sold, but decided in effect that intervenors had no interest in a portion of the premises, involved in the proceedings known as the “homestead.” The intervenors appeal.

— ITon. W. R. Lewis, Judge. Action to recover the value of a horse killed by an engine operated upon defendant’s road, through the negligence of defendant in permitting a cattle-guard to be filled with snow and ice, which enabled the horse to go upon the railroad track, where it was killed. The cause was tried to a jury, and a verdict was rendered for defendant under an instruction requiring such a finding. Plaintiff appeals.

— Hon. Josiah Given, Judge. In 1885 the plaintiff recovered a judgment against the Colfax Hotel Company for three thousand dollars, on a note executed by the hotel company to James Callanan, and by Callanan transferred by indorsement to plaintiff. In the action upon this note Callanan was made a party, default taken, but no judgment was ever rendered against him.

— Hon. Charles H. Lewis, Judge. Action to recover the possession of specific personal property, and damages for its detention. There was a trial by the court, and a judgment in favor of plaintiffs for tile property and costs.' The defendant appeals.

- — Hon. Charles T. Granger, Judge. Action to enforce specific performance of an alleged gift of a certain tract of land to plaintiff’s husband, and that the same be adjudged her homestead. The following facts appear without question : The plaintiff is the wife of defendant Joseph Truman, son of defendant Thomas Truman, whose only other child is Yiolet Parker.

— Hon. L. O. Hatch, Judge. Plaintiee brings this action to recover from defendant certain fees claimed to be due him as justice of the peace, from the defendant county, for services rendered in certain criminal cases. The case was submitted to the court on an agreed statement of facts, and judgment rendered against the defendant for ninety-six dollars and costs, to which the defendant excepted.

<p>Appeal from Page District Court. —IIon. A. B. Thobnell, Judge.</p> <p>Indictment for burglary. From a judgment on conviction the defendant appeals</p>

— Hon. John T. Stoneman, Judge. Action to repover damages for injury sustained by plaintiffs from the negligence of defendant in transporting a carload of butter, which it had received from an intermediate carrier, whereby the butter was greatly injured. There was a verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. H. ' Henderson, Judge. Action upon a bond given in the prosecution of an action of replevin in the state of Colorado. Only one of the sureties upon the bond was served with process or appeared in the case. Judgment was rendered on a verdict against him. He now appeals.

— Hon. John T. Stoneman, Judge. Action to recover damages for injury sustained, through, negligence of defendant, to a large quantity of butter shipped by plaintiff from West Union, Iowa, to New Orleans, Louisiana; the butter being carried over a part of the route by defendant. . The cause was tried without a jury, and judgment was entered for defendant. Plaintiffs appeal.

— Hon. Dell Stuart, Judge. Action to recover for services rendered by plaintiff in nursing and caring for Thomas Bigham, an employe of defendant, who had received personal injuries while in the discharge of his duties,, and was taken care of, and a physician provided, by defendant. A judgment upon a verdict was rendered for plaintiff. Defendant appeals.

— Hon. Scott M. Ladd, Judge. Action to recover the possession of real estate. There was a trial by the court, and a judgment for plaintiff. The defendant appeals.

— Hon. J. H. Macombee, Judge. This is an action in equity to foreclose a mortgage upon two quarter sections of land in Carroll county. Two demurrers to the petition were filed, which were sustained by the court, and plaintiff appeals. The facts appear in the opinion.

<p>Appeal from Des Moines District Court. — Hon. Charles H. Phelps, Judge.</p> <p>Action to avoid a sale, and declare a trust. Judgment for plaintiff, and defendants appeal.</p>

— Hon. J, H. Henderson, Judge. Action on a promissory note made by defendant Brown, and indorsed by its payee, the defendant Hayden. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant Brown appeals.

— IIon. A. W. Wilkinson, Judge. Action upon notes, and an open account. There was a judgment for plaintiff for a part of the amount claimed; and from a judgment of the court favorable to the defendant on certain items the plaintiff appeals.

— Hon. John L. Stevens, Judge. This is an action for an injunction to restrain and enjoin the defendants from maintaining and carrying on an alleged nuisance by the illegal sale of intoxicating liquors. A temporary injunction was ordered, and, pending the action, an information was filed charging the defendants with violating the same. The cause was tried, upon its merits, and at the same time the information for violation of the injunction was heard.

<p>Appeal from Warren District Court. — Hon. O. B. Ayres, Judge.</p> <p>Defendant was indicted, tried and convicted of the crime of larceny, and lie appeals.</p>

— Hon. Scott M. Ladd, Judge. Action against an administrator and the sureties on his bond, to recover the amount of a balance of the distributive share of an heir of the intestate, which the administrator was, by order of the court of probate, required to pay. The cause was tried to the court without a jury, and judgment rendered for plaintiff against the administrator, and for the sureties. The administrator appeals.

— Hon, Dell Stuart, Judge. Proceedings to discover assets belonging to an estate, and to compel their delivery. From a judgment requiring the defendants to deliver the property to the plaintiff they appeal.

— Hon. (3-eorge Carson, Judge. Action to recover the possession of one cow and three colts. After the evidence of both parties had been introduced, the court sustained a motion of defendant to instruct the jury to return a verdict in favor of plaintiff for the cow, and in favor of defendant for the colts. A verdict was returned accordingly, which fixed the value of the colts at one 'hundred and thirty dollars.

— Hon. G-eobge W. Wakeeield, Judge. Action to recover for the loss of nineteen head of cattle while in transit over defendant’s line of road. Judgment was entered for plaintiffs, from which the defendant appeals.

J. W. Harvey, Judge of the Third Judicial District. Plaintiff, in his petition, prays that the defendants may be enjoined from enforcing and obeying an ordinance of the city of Crestón providing for the conveyance of certain lots, and the city buildings thereon, of the value of thirty-five thousand dollars, to Union county, and restrained from the delivery to it of a deed executed under said ordinance, and held as an escrow by one of the defendants, to be delivered when the…

— Hon. George Carson, Judge. Actions to establish, certain claims against the estate of Michael Langton, deceased, of which, the defendant Sooy was the duly appointed and qualified administrator. There being two cases, resting partly upon the same facts, and involving the same questions, they are submitted together.

— Hon. J. H. Preston, Judge. Action to recover one-half of the amount paid upon a policy of insurance. Ur. J. H. Phillips died, leaving the plaintiff, his widow, and one child, Bessie Phillips, a minor, surviving him, of which minor H. M. Carpenter was duly qualified as guardian.

— Hon. J. K. Johnson, Judge. Action to recover an amount alleged to be due by-virtue of a verbal agreement and on account. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.

<p>Appeal from Buchanan District Court. — Hon. D. J. Lenehan, Judge.</p> <p>Proceeding- under the bastardy act. Prom judgment for maintenance, the defendant appeals.</p>

<p>Evidence: action on lost draft. In an action for the value of a lost draft, the evidence (see opinion) is considered, and held to establish, without conflict, that the draft was drawn and delivered to plaintiff, and by him sent by mail to another, who never received it; that it was lost in the mail, and was never paid to any one, though seven years had elapsed; and, upon this uncontradicted evidence, held that plaintiff was entitled to judgment.</p>

— Hon. George W. Wakefield, Judge. Action in equity to subject real estate to the payment of a judgment. There was a trial on the merits, and a judgment in favor of defendants. The plaintiff appeals.

— Hon. Jostai-i Given, Judge. The plaintiff is the owner of certain lots, which are bounded by Vine street, ‘in the city of Des Moines. This action was brought to recover damages for the alleged unlawful laying down and operating two railroad sidetracks in said street, opposite to said lots. There was a trial upon the merits, and the .petition was dismissed. Plaintiff appeals.

— Hon. R. C. Henry, Judge. Action in equity to set aside a contract for the sale of lands. Decree for plaintiff, and defendants appeal.

— How. Scott M. Ladd, Judge. These actions involve the title to certain lands in O’Brien county. The jilaintiffs claim to be the owners-under the patent title,' and the defendant claims title under certain tax sales and deeds. The actions are in equity, and were tried together as one case, and ¿there was a decree dismissing the petition. Plaintiffs appeal.

— Hon. David Ryan, Judge. Action in equity to discover and subject property to the payment of certain judgments. The court below sustained a motion to strike from the petition and for a more specific statement. Plaintiffs refused to amend, and the court dismissed their cause of action, and rendered judgment in favor of defendants for costs. The plaintiffs appeal.

— Hon. J. K. Johnson, Judge. Action in chancery to enjoin defendant from interfering with, the flow of water from plaintiff’s land upon the adjoining lands of defendant. There was a decree granting part of the relief prayed for by plaintiff, and refusing part. Both parties appeal, — the defendant first, and he is therefore designated as “appellant.”

— Hon. C. M. Waterman, Judge. Action at law to recover for grading and macadamizing a street of the plaintiff city, upon which lots alleged to be owned by the defendant abut. The cause was tried without a jury, and judgment rendered for defendant. Plaintiff appeals.

— Hon. S. M. Weaver, Judge. Plaintiff is a judgment creditor of the Tama Paper Company, of which defendant is a stockholder. This is an action to recover of defendant the sum of twenty-five hundred dollars, alleged to be due from him to said company on account of stock by him taken. After the evidence was submitted, the court directed the jury to return a verdict in favor of plaintiff for the sum of twenty-five hundred dollars.

— Hon. J. W. Harvey, Judge. Action in equity to recover the amount of certain mortgage bonds. The defendant Dunning filed a cross-petition, in which he demanded relief against his co-defendant, Finn. There was a trial by the court, and a decree rendered in favor of plaintiff against Finn, and in favor of Finn as against Dunning. Both Finn and Dunning appeal.

— Hon. R. C. Henbt, Judge. Action to recover for money alleged to have belonged to plaintiff, and to have been wrongfully obtained by defendant, and converted to bis own use. There was a trial by jury, and a verdict and judgment for plaintiff. Tbe defendant appeals.

— Hon. W. F. Conrad, Judge. The defendant was indicted, tried and convicted of the crime of larceny from the person, and he appeals.

— How. James D. GriEEEN, Judge. The Williams Harvester, Company was organized as a corporation under articles dated May 13, 1878, fixing the capital stock at eighteen thousand dollars in shares of one hundred dollars, each, with the defendant as president, which position he continued to hold during all the time the company carried on' business.

— Hon. R. C. Henry, Judge. The indictment in this case charged the defendant with the seduction of one Nellie Patterson, alleged to be an unmarried woman of previous chaste character. Upon a trial, the defendant was found guilty, and sentenced. to imprisonment in the penitentiary. He appeals.

— Hon. -J. W. Harvey, Judge. Action upon a bond given pursuant to Code, section 912, by the Osceola Bank, with C. W. and Gr. H. Cowles, sureties, to secure deposits in the bank made by the plaintiff as county treasurer. Findley, as receiver of the bank, intervened in the action. Judgment was rendered for plaintiff on the bond, and for the intervenor in the intervention proceedings. The defendants Cowles and Cowles and the plaintiff appeal.

— Hon. H. C. Traverse, Judge. The indictment returned against the defendant is in two counts, the charging part of each being as follows : “ The said Lawson J. Baldwin, on or about the twenty-eighth day of June, in the year of our Lord one thousand, eight hundred and eighty-five, in the county aforesaid, in and upon the body of one Mattie Rodabaugh, then and there being, wilfully, feloniously, premeditatedly, and with malice aforethought, did commit an assault with some…

— Hon. David Ryan, Judge. Action in equity for the partition of real estate. The district court found that the premises involved in the action could not be partitioned, and decreed a sale thereof, and a division of the proceeds. The defendants, John J. and George G. Wuchner, appeal.

— Hon. John W. Habvey, Judge. Indictment for murder in the first degree. The indictment charges that the defendant, about the third day of November, 1887, murdered one Emmet Reed.

— Hon. J. H. Preston, Judge. The defendant was convicted of the crime of forcible defilement, and adjudged to be imprisoned to the penitentiary at Anamosa, at hard labor,, for the' period of three years. Prom that judgment he appeals.

— Hon. G-. M. Gilchrist, Judge. Defendant was indicted- and tried for keeping a house of ill fame, and from a verdict of guilty, and judgment thereon, he apppeals. ■

— Hon. D. D. Miracle, Judge. Defendant was indicted by the grand jury of Hardin county for the crime of assault with intent to commit murder, alleged to have been committed as follows: “The. said Joseph Rainsbarger, on the twenty-seventh day of February, 1886, in the county aforesaid, in and upon one Christian Smith, did commit an assault with a deadly weapon, being a revolver loaded with powder and ball, and held in the hands of the said Joséph Rainsbarger, then and there…

— Hon. L. E. Fellows, Judge. The defendant was arrested and taken before a justice of the peace on an information for selling intoxicating liquor. The information contained four counts, charging separate offenses. Upon the trial before the justice the following appears to be his finding : “I find defendant guilty as charged in count one of the information.” No specific finding is made as to the other three counts, and a fine of fifty dollars was imposed.

— Hon. S. M. Weaver, Judge. Action to recover attorney’s fees. There was a judgment upon a default for want of an answer, which, upon motion of defendant, was set aside. Plaintiff appeals.

— Hon. H. C. Traverse, Judge. Action in chancery to compel an assessment upon the members of the defendant corporation, and the collection and payment thereof, to the. amount of two thousand dollars, upon a certificate or policy issued to the husband of plaintiff in his lifetime, obligating the defendant corporation to make such assessment, collection and payment upon his death.

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>On indictment for keeping a gambling house.</p>

<p>Appeal from Polls District Court — Hon. Marcus Kavanagh, Jr., Judge.</p>

<p>Appeal from J?ollc District Court. — Hon. W. H. McHenry, Judge.</p>

— Hon. George Carson, Judge. The defendant was indicted and convicted of keeping a nuisance, by maintaining a place for the unlawful sale of intoxicating liquors and now appeals to this court'.