Volume 95 — Iowa Reports

— IIon. Lot Thomas, Judge. Plaintiff states as its cause of action, in substance, as follows: That the defendants Hallanger and Oleson made their two promissory notes in writing, payable to defendant W. L. Bossing, or order, six months after ■date, with eight per cent, interest, one note being for fifty-two dollars and fifty cents, and the other for one hundred and five dollars.

— Hon. S. M. Weaver,, Judge. Action at law to recover damages for a personal injury alleged to have been sustained) by reason of a defective approach to a county bridge. There was a trial by jury. Verdict and judgment for the plaintiff. Defendant appeals.

<p>Appeal from Pottawattamie District Court. — Hon. H. E. Deemer, Judge.</p> <p>Action on a ¡subscription. Judgment for the defendant, and the plaintiffs appealed.</p>

— Hon. A. Yak Wagenen, Judge. Certiorari to review the action of thie defendant .board in raising the assessment on farm- lands of tracts of more than ten acres, situated within, the. limits of the incorporated town of Rock Rapids. Plaintiff McCutchen brought the action, and other owners, of like lands were permitted to intervene and join with the plaintiff in his demands.

— Hon. H. M. Towner, Judge. Suit in equity to have certain lands in The name of A. C. Reticker decreed to belong to J. M. Reticker, and •to subject them to the payment of plaintiff’s judgment. Prom a decree dismissing plaintiff’s petition, he .appeals,

— Hon. N. W*. Maoy, Judge. Action at law upon a judgment against the defendant rendered by a court of the state of Wisconsin. There was a trial by the court, without a jury, and a judgment in favor of the defendant for costs. The plaintiff appeals.

— Hon. N. W. Maoy,. Judge. Action upon two promissory notes executed by defendants, payable to F. P. Bellinger or bearer. Plaintiff alleges that said notes were transferred and. indorsed to plaintiff before maturity, in good faith, and for valuable consideration, and are past due. Defendants admit the. execution of said notes, but deny that, plaintiff purchased the same in good faith, and for valuable consideration.

.Appeal from Adair District Court. — Hon. A. W; Wilkinson, Judge. ..¡i Action iat law to recover of the defendant money which, he received- as guardian of Lewis B. Oox,--imbe*-cile, and for which it is alleged he has failed to account.

— Hon. C. P. Holmes, Judge. The petition shows that the plaintiff is pastor of the East Side Catholic Church in the city of Des Moines, commonly known as the “Church of the Visitation;” that in 1882 he purchased some lots in the city of Des Moines, with the express view and intention of erecting thereon, except on lot 1, a church edifice for the use of the East Side congregation, and of erecting on the other lot a school or pastor’s residence for the use of said…

— Hon. W. F„ Brannan, Judge. Action for damage® arising from the hilling of George H. Cox. Jury trial. Verdict for defendant. Verdict set aside. Both parties appeal.

— Hon. George W. Wakefield, Judge. Action in equity to recover the amount of two promissory notes and for the foreclosure of a mortgage upon land in Lyon county, given to secure their payment. There was a hearing on the merits, and a decree for the plaintiffs as prayed. The defendants appeal.

— Hon. Charles D. Goldsmith, Judge. Action to quiet title to a quarter section of land in Carroll county. Decree for defendant, and the plaintiff appealed.

— Hon. N. B. Hyatt, Judge. TMs is a suit in equity by which the plaintiff seeks to set aside a contract for the erection of a sehoolhouse, and to enjoin the defendants from the performance of said contract, and to require them to repay to the plaintiff any money paid out in the performance of said alleged illegal contract. There was a decree for the plaintiff, from which defendant appeals.

— Hon. J. D. Griffith, Judge. Action to recover damages to plaintiff’s property ■by reason of. the change of grade of the street upon which said property abuts. From a verdict and. judgment against the defendant, it appeals.

— Hon. Soott M. Ladd, Judge. Action on promissory notes and on account for borrowed money. The answer is a general denial, and a denial of the genuineness of the signatures to the notes, and a plea of the statute of limitations. The cause was tried to a jury that returned a verdict for the defendant, and the court sustained a motion for a new trial. The defendant appealed.

Prank ft. G-aynor, Judge. This is a suit in equity to set aside certain conveyances of real estate. There was a decree for the defendants, and plaintiffs appeal.

— Hon. George W. Wakefield, Judge. Action to recover three thousand five hundred '•dollars damages for the alleged wrongful conversion •of four promissory notes aggregating one thousand four hundred and ten dollars. Verdict and judgment in favor of the plaintiff for two thousand two hundred and ninety-eight dollars and forty cents. Defendant appeals. The issues and facts are sufficiently set forth ¡in the opinion.

Appealfrom Adams District Court. — Hon. H. M. Towner, Judge. ¡On the morning of September 27, 1893, tbe plaintiff procured a ticket on defendant’s line of road from .'Prescott to Corning, a distance of seven and one-third miles. Because of the fair at Corning, the .company was selling round-trip tickets at reduced rates, which tickets had to be filled in with a pen.

— Hon. J. H. Preston, Judge. Action of mandamus to compel the defendants, ©orwart and Ives, as officers of the Burlington, Cedan Rapids & Northern Railway Coihpany, to exhibit certain books and papers of the corporation to plaintiff, for his inspection and examination. From a judgment dismissing plaintiff’s petition, he appeals.—

— How. D. Ryan, Judge. Action to Recover overcharges for freight shipped over defendants line of railway. Judgment on demurrer against-plaintiff, and he appeals.

— Hon. J. H. Preston, Judge. Action in equity to recover on a certificate of membership,. and to compel the levying and collection of an assessment for the payment of the amount claimed to be due. There was a hearing on the merits, and a decree for the plaintiff. The defendant appeals.—

<p>1 3 4 5 Railroads: trespasser: evidence. A section hand walking home on the track after his day’s work is done is not rightfully on the track because his foreman had told him to notice the track closely whenever he went over it and report if anything was wrong.</p> <p>8 Same: duty oe crew. Trainmen owe no duty to such an employe, till he is discovered.</p> <p>2 6 7 Contributory Negligence: presumptions. The presumption that the instinct of self-protection makes one diligent is overcome by evidence that an employe, off duty, was struck by a train which he had reason to expect and which he could have heard four hundred feet away.</p>

<p>Appeal from Blade Hatch District Court. — PIon. J. L. Husted, Judge.</p> <p>Proceedings to construe a will. Judgment for plaintiffs. Defendants appeal.</p>

— Hon. W. I. Babb, Judge. This is a proceeding in equity for the correction of an assessment of personal property. There was a hearing on the merits, and a decree in favor of the ■plaintiff. The defendant appeals.

— Hon. J. D. Gtffin, Judge. Action in equity to remove alleged clouds from the title to certain real estate, and to quiet the title thereto in the plaintiff. Issues were joined, trial had, and decree entered as hereinafter stated. The Central Iowa Investment Company and Will Richmond appeal.

— Hon. C. P. Holmes, Judge. Suit in equity to recover rent, and to foreclose a lien upon certain property created by a lease executed by plaintiff to defendant for certain office rooms in a building in the city of Des Moines. The district court sustained a demurrer to a counterclaim interposed by-defendant, and defendant appeals.

— Hon. J. H. Pbeston, Judge. Action at law to recover a balance alleged to be due upon advancements of money made by plaintiff to defendants, and for freight paid and commissions upon four car loads of eggs shipped by defendants to plaintiff. There iras a trial by jury, and a verdict for the defendants for one dollar. The verdict was set aside, and a new trial granted, and defendants appeal.—

— Hon. D. Ryan, Judge. Action at law to recover damages for failure to transmit a telegraphic dispatch. The court below directed a verdict for defendant, and the plaintiff appeals.

— Hon. C. D. Goldsmith, Judge. Action to recover for money paid by the plaintiff in satisfaction of a promissory note which defendant executed to the plaintiff, and which the plaintiff indorsed to the Crawford County State Bank, and was •compelled to pay. The defendants answered by averring defensive matter and a counterclaim at great length, and the plaintiff moved to strike part of the answer, and to make other parts more specific.

— Hon. James D. Smythe, Judge. Action to enjoin the defendant from taking possession of a certain strip of land, and from removing a fence, sidewalk, and trees therefrom. Decree was entered in favor of the plaintiff. Defendant appeals.

— Hon. H. E. Deemeb, Judge. Action in equity to compel specific performance of an alleged contract, and to cancel certain conveyances of real estate. Decree was entered in favor of the plaintiff, from which the defendants appeal.

— Hon. W. A. Spurrier, Judge. Action to enjoin the maintenance of a nuisance in the keeping and selling of intoxicating liquor. The petitions are in the usual form, showing that the defendants are engaged in selling, and keeping with intent to sell, intoxicating liquors, in violation of law, on certain lots in the city of Des Moines, with a prayer that injunctions issue to restrain their continuance.

— Hon. N.B. Hyatt, Judge. The amount in controversy being less than one hundred dollars, the case is appealed by the defendant upon a certificate of the trial judge that it involves questions of law upon which the opinion of this court is desired. Judgment was rendered below in favor of the plaintiffs for seventy-two dollars and eighty cents and costs.

— Hon. Charles D. Goldsmith, Judge. Action in equity to restrain the defendants from declaring and enforcing a forfeiture of a certain contract in writing for the sale of real estate described; for an accounting under the contract, and a decree compelling the defendants to accept performance thereof, and to quiet title in the plaintiff. Decree was entered dismissing plaintiff’s petition, and quieting title in ithe defendants, as prayed in their cross petition.

<p>Appeal from Kossuth District Court. — Hon. George H. Carr, Judge.</p> <p>Action by attachment to recover attorney’s fees. Judgment for plaintiff, and the defendant appealed.—</p>

<p>1 Partnership. One partner may share his interest in a partnership with a third person so as to make a partnership between these two, though the other members of the firm have no knowledge of such arrangement.</p> <p>2 Evidence sustains finding as to when a partnership terminated and the accounting stated, below.</p> <p>Deemeb, J., took no part.</p>

— Hon. A. B, Thornell, Judge. Action at law to recover damages for a personal injury. Trial by jury. Verdict and judgment for the defendant. Plaintiff appeals.

— Hon. H. E« Deemer, Judge. Action at law to recover upon an account. There was a trial by jury, and at the close of the introduction ,of the evidence on behalf of plaintiffs the court, on the defendants’ motion, directed the jury to return a verdict against the plaintiffs. From a judgment on the verdict so returned, the plaintiffs appeal.

— Hon. Scott M. Ladd, Judge. Action to recover for personal injuries alleged to have been caused by the negligence of the defendant in permitting one of the rails in its tracks to become weak, cracked, and out of repair, and in running the caboose in which plaintiff was riding at a negligent rate of speed, in consequence of which said caboose was derailed, and plaintiff injured.

— Hon. J.' L. Husted, Judge. The other defendants are H. T. Lynch, O. M. Shillinglaw, and C. G. Trask.

— Hon. H. C. Traverse, Judge. This is a proceeding to- establish a claim for money loaned by plaintiff to L. H. Murphy during his lifetime against the defendant, as administratrix of his estate. The case was tried to a jury, and a verdict returned, from which plaintiff appeals.

— Hon. J. H. Preston, Judge. Plaintiff states as his cause of action, in substance, as follows: That prior to April 9, 1892, “defendant had carelessly and negligently constructed and maintained” a certain cattle-guard at a highway crossing. That “said imperfect construction consisted more particularly in placing broad and flat timbers so close together as to leave too small a place between them to serve the purpose of a proper cattle-guard.

— Hon. J. J. Ney, Judge. Plaintiff is a judgment debtor of the defendant. He was an employe of the Illinois Central Railway Company, and the head of a family. On the twenty-first day of January, 1894; there was due him from the company his wages for the forty days next preceding, which, because his personal earnings, were exempt from execution.

— Hon. C. P. Holmes, Judge. Proceedings to set aside an order directing distribution of funds by assignee, and to establish plaintiff’s claim to a first lien upon the fund.

— Hon. J. R. Caldwell, Judge. Action of mandamus to compel the relocation of a schoolhouse site. A demurrer to the answer was filed but overruled, the plaintiffs elected to stand on their demurrer, and judgment was rendered in favor of the defendants. The plaintiffs appeal.

— Hon. James D. Gieeen, Judge. Action at law by plaintiff, as administrator of the estate of Lulu M. Sutzin, deceased, to recover damages for her death, caused by the alleged negligence of defendant’s employes. Trial to the court. Yerdictand judgment for plaintiff, and defendant appeals.- — ■

— Hon. W. H. Tedeord, Judge. The plaintiff filed his petition for the appointment, of a receiver to manage and control certain real estate pending litigation in which the title to' the property is in dispute between the parties. Notice of the application was given to the defendants, and a hearing was had, and a receiver was appointed. From the order making such appointment the defendants- appeal.—

— Hon. H. Bank, Jr,., Judge. Action at law upon a contract of insurance. Trial by jury. At the close of the introduction of the evidence in behalf of the plaintiff, a motion to instruct the jury to return a verdict for the def endant was sustained. From a judgment on the verdict thus rendered, the plaintiff appeals.

— Hon. GIeorge H. Carr, Judge. Plaintiffs, a copartnership-engaged in the purchase and sale of live stock in the city of Chicago, state their cause of action in substance as follows: That the defendant bank is a copartnership, composed of the defendants Clark and Calvin, doing a general banking business at Ayershire, Iowa; Calvin acting as president, and Clark a® cashier thereof.

— Hon. Fred O’Donnell, Judge. Suit in equity to reform and change two promissory notes executed by W. M. Fields & Bro. so that on their face they will be certificates of deposit on the First National Bank of Cedar Falls. There was a decree for the plaintiff, and defendant appeals.—

— Hon. Walter I. Smith, Judge. Plaintiff commenced this action July 2, 1891, to recover damages for personal injuries alleged to have been sustained by him on or about August 30, 1889, when a passenger on one of defendant’s passenger trains, because of certain negligent acts and omissions of the defendant’s employes. .He alleges that in consequence thereof, and without fault on his part, he was seriously and permanently injured in certain particulars stated, from which…

— Hon. James D. Smythe, Judge. Defendant was indicted, tried, and convicted of the crime of larceny from a building in the night time. He was sentenced to imprisonment in the state penitentiary for the term of three years, and appeals.—

— Hon. S. F. Balliet and Hon. C. P. Holmes, Judges. The first of the above-entitled causes is a suit in equity, by which the plaintiff city seeks to enjoin the defendant water company from demanding or receiving from the city a greater sum for furnishing water to the city and its inhabitants than the rate established by a certain ordinance passed by the city council on the twenty-third day of January, 1893, and to enjoin the said company from ceasing to supply water to the…

— Hon. H. C. Traverse and Hon. E. L. Burton, Judges. The defendant was convicted of the crime of seduction, and from the judgment, which required him to-pay a fine of five hundred dollars and costs, and to be imprisoned in the county jail one day, he appeals.—

<p>Appeal from Boone District Court.™-*Hon. S. M. Weaver, Judge.</p> <p>The defendant was indicted and convicted, of keeping a liquor nuisance, and appeals.</p>

— Hon. W. F. Conrad, Judge. The defendant was indicted for disinterring a human body from its place of burial, and carrying it away. Upon a trial he was found guilty, and he appeals.

— Hon. I). Ryan, Judge. The defendants were convicted of the crime of conspiracy, and each was adjudged to be imprisoned in the penitentiary at Ft. Madison for the term of three years. From that judgment they appeal.

<p>1 Seduction: evidence. In a prosecution for seduction, alleged to have taken place in March, under promise of marriage, in which the state claimed that the intimacy between the defendant and prosecutrix continued until June 12, or later, it was not error to admit evidence of the birth of a child February 28, following.</p> <p>2 Same. In a prosecution for seduction, where a witness testified that he kept company with the prosecutrix and that one night he was with her till eleven o’clock, it was. error not to permit him to state" whether she treated him as her suitor.</p> <p>5 Cross-examination. The mother of prosecutrix testified that one S. was at her house one night with prosecutrix, and in speaking of defendant’s attentions she stated that “no one else was keeping company with her at the time.” No time was stated in either case. Held, that it was not error to refuse to permit her to state what time in the evening S. left that night, and whether the family had retired.</p> <p>6 Same. A relative of prosecutrix testified that in a conversation with defendant, in which he referred to one B. as one who might be the guilty person, she said: “We would like to see B. ourselves. We could have use for him.” Held, that the refusal to allow the witness to be asked on cross-examination what she meant by the quoted statement was proper.</p> <p>4 Disclosing purpose or question. In prosecution for a seduction the court refused to allow defendant to ask prosecutrix the questions: “You kept company with J. prior to your keeping company with (defendant), did you not?” and “When did you cease keeping company with J., if you ever did?” Held, proper, in the absence of any disclosure of the purpose of the inquiry.</p> <p>7 Conflicting evidence on appeal. Though on appeal in a seduction case there is much doubt under the evidence of the previous chastity of the prosecutrix, and her conduct appears in many respects to have been incompatible with the existence of a promise to marry, a verdict of guilty will not be disturbed.</p> <p>8' Practice: leading question. In a prosecution for seduction, a question by the state, requiring prosecutrix to state whether or not defendant ever made’ to her a promise to marry, is not objectionable as leading.</p>

— Hon. N; W. Maoy, Judge. This is an appeal by interveners William Trailer, John A. Frank, N. B. Williams, Barth Frank, George B. Prall, and T. N. Hesselgrave from an order overruling their motion to set aside a former order appointing a receiver of the defendant bank, on the petition of the plaintiff, a stockholder therein, and for the discharge of said receiver.

— Hon. N. B. Hyatt, Judge. The defendant was convicted in justice’s court of selling intoxicating liquors without a permit, and appealed to the district court. He was tried in that court, and again convicted, and adjudged to pay a fine of fifty dollars and costs. From that, judgment he appeals.

— Hon. A. R. Dewey, Judge. Defendant was convicted of the crime of using and occupying a place for the purpose of prostitution and lewdness, and she appeals.

— Hoe. James D. Smythe, Judge. These parties were candidates for the office of county attorney for Des Moifies county, and votes were cast for each at the general ¡election held November 6, 1894. November 12,1894, the board of supervisors, sitting as a board of canvassers, declared incumbent duly elected. November 28,1894, contestant filed his statement of contest with the county auditor, and a court of contest was duly organized, and convened December 18,1894.

— Horr. W. A. Hoyt, Judge. The defendant was charged with unlawfully seining fish. He was tried before the mayor of the city of Lansing, Iowa, and convicted. He appealed to the district court of Allamakee county. In said court he was found not guilty. The state appeals;

— How. JohN E. Caldwell, Judge. The defendant was indicted for breaking into a store building; was convicted, and sentenced to the penitentiary for the term of two and one-half years,, and appeals.

— Hon. A. Van Wagenen, Judge. The defendant was convicted of the crime of using false weights, and adjudged to pay a fine of fifty dollars and costs. From that judgment he appeals.

— IIoN. D. R. HiNdmaN, Judge. Defendant was indicted, tried, and convicted of the crime of breaking and entering a building where goods, wares, and merchandise were kept for use, sale, and deposit, and he appeals.

— Hon. W. F. Conrad, Judge. Action in equity to recover for certain lumber sold to defendants, which was used in the erection of certain buildings, and to establish an equitable lien upon the buildings and lot, and for general relief. There was a decree and a judgment for the plaintiffs, and defendant Cflara Shepherdson appeals.

— Hon, G. W. Paine, Judge. The defendant was indicted, tried, and convicted of the crime of having in the night time, unlawfully, burglariously, and feloniously entered the dwelling house of one Henry Drake, with intent to commit a public offense, to-wit, the crime of adultery.

— Hon. W. D. Thompson, Judge. The plaintiff is the contestant for, and the defendant the incumbent of, the office of county clerk of Cedar county, and at the general election in 1894 the plaintiff was the Democratic candidate and the defendant the Republican candidate for such office. The board of supervisors, in its canvass of the returns declared the defendant elected, and the plaintiff instituted proceedings to contest the election.

— -Hon. W. R.. Oreen, Judge. The defendant was indicted for breaking and entering a warehouse with intent to commit the crime of larceny. There was a trial by jury, verdict of guilty, and judgment on the verdict. Defendant appeals.—

— Hon. J. H. Apple-gate, Judge. The defendant was indicted and put upon trial for the crime of adultery. At the conclusion of the evidence for the state, the court, on motion of the defendant, directed a verdict for the defendant. The state appeals.

— Hon. C. P. Holmes, Judge. On the third day of December, 1890, the Mahaska Coal Company made to M. B. Foster a lease of its “coal lands, rights, and licenses for mining, mining machinery, apparatus, buildings, and all its mining property,” as described- in the lease.

<p>3-4 5 Practice: arraignment. Where trial was set on consent and both parties subpoenaed witnesses accordingly, defendant is deemed to-have waived arraignment, after trial has actually begun.</p> <p>6 Plea. Though Code, 3346, allows one day to plead, it is not error to allow but thirty minutes after defendant has thus waived arraignment, by consenting to a set day for trial.</p> <p>1 Practice in Supreme Court. No transcript or amended abstract may be iiled after submission, unless the court gives permission.</p> <p>2 Submission. No submission will be taken on the motion of the court at a time at which the record is not complete.</p>

<p>4 Homicide: Evidence. Where it is defended that a shot was accidental and fired merely to scare, evidence that defendant said he would not shoot next time to scare but to kill is admissible though defendant did not then have deceased in mind.</p> <p>3 Same. There being question as to the name of the deceased, his photograph, taken after he was shot, is admissible in identifying.</p> <p>2 Indictment. That an indictment for homicide states the name of deceased erroneously is immaterial. McClain’s Code, 5687.</p> <p>5 Manslaughter: “willfully” defined. No malice being involved in manslaughter, “willfully” may be defined in a prosecution for it as “willingly done, an operation of the mind that consents to an act.”</p> <p>1 Practice in Supreme Court. An abstract and argument filed after submission will not be considered unless a proper showing ie made.</p>

— Hon. H. C. Traverse, Judge. Action, in .equity to determine the ownership of certain real estate, and to have it partitioned. A petition of intervention was filed, to which the plaintiff demurred. The demurrer was overruled, and a decree was rendered in favor of the interveners. The plaintiffs appeal.

— Hon. P. B. Wolfe, Judge. Action -at law to- recover a smn of money alleged to have been paiid to the defendant, with interest. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals-.

— Hon. John R. Caldwell, Judge. The defendant was indicted, tried, and convicted on a charge of-feloniously breaking and entering a store in which goods, wares and merchandise were kept for sale, nse, and deposit, with intent on the part of defendant to commit the crime of larceny, and ha appeals to this court to reverse the judgment against him.—

— Hon. D. R. Hind-man, Judge. The defendant was indicted for the crime of breaking and entering a dwelling house in the night time with intent to commit a public offense. He was convicted, and sentenced to the penitentiary for a period of sixteen months, and appeals.

— Hon. D. R. Hind-man, Judge. Defendants were jointly indicted for the crime of malicious mischief. They were each convicted of the offense charged, and appeal to this court.

— Hon. J. M. Casey, Judge. Action on a subscription for the erection of a church. Judgment for the defendant, and the plaintiff appealed.

<p>Appeal from Scott District Court. — -Hon. P. B. Wolee, Judge.</p> <p>Action for personal injuries. The court directed a verdict for the defendants. The plaintiff appealed.—</p>

<p>3 Plea and Proof: insurance Evidence that stipulated proofs of loss were waived is not admissible under a pleading alleging that such proofs were furnished.</p> <p>1 2 Statute of Limitation: second suit. Code, section 2537, provides that where actions fail without negligence on plaintiff’s part, the bringing of a new suit within six months shall be deemed a continuation of the first. Held, this is not applicable where the first action fails because it is prematurely brought. So bringing it and prosecuting it is negligence. ....</p>

H. Bank, Jr., Judge. The plaintiff is the administratrix of tbe estate of H. E. Kerr, deceased. The defendant is a corporation, and owns and operates waterworks at the city of Keokuk. H. E. Kerr was in the employ of the company for about three years. He was engineer for the works, and had supervision of the operation of the pumping machinery.

<p>Service on Agent: evidence. An original notice served on one who ■jvas appointed by the directors of a corporation to fill a vacancy in the secretary’s office and who acted as secretary with the knowledge of the other officers, is a good service on the corporation.</p>

— Hon. H. C. Traverse, Judge. This is a suit for the partition of certain lands, in which plaintiffs, two of whom are the childen of David Beck, deceased, allege, in substance, that said David Beck died intestate in the year 1890 seized of certain lands in Jefferson county, leaving his wife and seven children surviving, five of which children, including J. A. Beck, the appellant, are made parties defendant to the .suit; that the widow elected to use and occupy a part of the…

— Hon. W. I. Babb, Judge. 'Action for the recovery of damages for a personal injury. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals-.

— Hon. James D. Smythe, Judge. Plaintiff brings this action in equity to recover upon a promissory note executed August 4,1888, by the defendants, for eight hundred dollars, payable to Mariah Decker or order, on or before three years after date, “at the office of Theo. Guelich, in Burlington,Iowa, * * * with 8 per cent, per annum, payable annually,” and for decree foreclosing a mortgage given to secure the payment of said note.

— Hon. W. H. Tedeord, Judge. Action upon a promissory note and for the foreclosure of a real estate mortgage given to secure the payment of the note. There was a decree for the defendant, and plaintiff appeals.

— Hon. J. H. Apple-gate, Judge. Action at law upon a policy of fire insurance issued to one J. R. Biery; loss, if any, made payable to E. L. Collins, mortgagee, as his interest may appear. Trial to a jury. Verdict and judgment for plaintiff!, and defendant appeals.

<p>1 3 4 Negligence: lessor and lessee. Defendants leased their opera house to a troupe. The lease required the lessors to furnish light and heat and that the stage carpenter was to act under the direction of the troupe’s stage manager. Back of the stage there was an-opening without railing, but having a trap door which could be closed. The agent of the troupe could have seen the opening when he made the lease. It does not appear but that sufficient light to make the opening harmless was obtained. Neither does it appear that the employes of the opera house did not obey the orders of the troupe’s stage manager. After the company had played on the stage for five nights, a member of it, passing from the back of the scenes upon the stage, was injured by falling into-the opening. The door was not closed and had not been during the five nights. Seld, the injury is not due to any fault of the lessors.</p> <p>2 Plea and Proof. Under an allegation that one is a member of an opera company, it cannot be shown that she is merely an employe drawing a salary, in a case where the rights of a member andi of a mere employe to recover damages differ.</p>

<p>1 2 3 Laborers’ Lien. Where an attachment levy, on the property of a corporation is abandoned, laborers who fail to file their claims with the sheriff are not prejudiced if they file them with the receiver, subsequently appointed, within thirty days after appointment. Chapter 48, Acts Twenty-third General Assembly.</p> <p>4-8 Same. Their claims take priority over bonds of the corporation secured by trust deed.</p> <p>5 7 Same. They are subordinate to the fees of a receiver and his attorney, but take priority over compensation due a trustee and his attorney for services in the foreclosure of a trust deed on the property of the corporation.</p> <p>6 Practice on Appeal: counsel fees. An allowance to receiver’s counsel will not be held unreasonable, here, where it does not appear what the services or their value were.</p>

<p>Appeal from Wapello District Court. — Hon. W. D. Tisdale, Judge.</p> <p>L. J. Michael is the administrator of the estate of Thomas Bingham, deceased, who, in his lifetime, was guardian of the property of the plaintiff. From October, 1869, to April, 1873, Bingham, as guardian, received on account of his ward, as pension, the sum of three hundred and eighty dollars and fifty-three cents. The plaintiff attained his majority in July, 1884. This proceeding was commenced by him in August, 1891. The petition, as originally filed, seems to have been with Bingham as defendant, as the answer is signed by him. It does not appear when he died. The petition, as first filed, shows the fact of the guardianship, the receipt of the money, a credit of ninety-two dollars and fifty-six cents, and a balance due, including interest, of seven hundred and one dollars and sixty-eight cents. The answer of Bingham, filed in December, 1891, shows that he received as pension the sum of two hundred and •.eighty-four dollars and fifty cents, and that he had expended the sum of four hundred and twenty-five dollars. In April, 1894, the plaintiff amended his petition by showing that June 20, 1869, Bingham, with L. J. Michael as surety, executed a guardian’s bond for the use of plaintiff; recited the conditions of the bond, and the facts as to the receipt of the pension money as guardian; and averred “that said Thomas Bingham, by the terms of the said bond, agreed to account for and pay the same to the plaintiff when he became twenty-one years old.” To the petition as thus amended, the defendant filed an answer admitting the execution of the bond as set forth in the petition, and averring that the action is barred by the statute of limitations. Some testimony was taken under the issues presented, and the court ordered the defendant to pay plaintiff the sum of four hundred dollars and eighty cents, and from the order the defendant appeals.</p>

<p>2 Seduction: evidence. As the date of seduction is not material, the evidence of the defendant that he had intercourse with the prosecutrix the week before the time at which she says the seduction occurred,- does not overcome the presumption of chastity.</p> <p>4 Refusal of Offer of Marriage. An offer to marry after learning of prosecutrix’s pregnancy is not admissible to prove that there . was not a promise of marriage before the intercourse, but solely as tending to show that intercourse was obtained under promise of marriage or acts leading prosecutrix to believe that defendant would marry her if she submitted.</p> <p>3 5 Corroboration. Must go to debauching and to the use of seductive arts. In this case admitted intercourse and offer of marriage after learning of pregnancy are held to be such corroboration.</p> <p>2 Instruction. Held to state that corroboration must go to. the intercourse and seductive arts.</p> <p>1 Leading questions. A reluctant witness may be asked leading questions.</p>

<p>Appeal from Tama District Court. — Hon. John it. Caldwell, Judge.</p> <p>Tbe defendant was indicted for the crime of carnally knowing and abusing a female child under the age of thirteen years. He was convicted of an assault with attempt to commit rape, and. sentenced to the penitentiary for the term of five years. He appeals.—</p>

— Hon. W. I. Babb, Judge. This is an action for the recovery of a cash register, or for the value thereof in case the possession of the' property cannot be obtained. There was a trial before the court, and a judgment for the defendant. Plaintiff appeals.

— Hon. A. B. Thornell, Judge. The defendant was convicted of the crime of being an itinerant vendor of drugs and nostrums and publicly professing to cure diseases and injuries without a license. Prom the judgment, which imposes a fine of one hundred dollars, he appeals.

— Hon. W. H. Tedeord, Judge. 1 The plaintiff is the administrator of the estate of Lucretia Arnold, deceased. On the first day of January, 1871, the defendants L. P. Sigler and D. & A. B. Stearns made to Lucretia Arnold their promissory note for five thousand dollars, payable, in government bonds, eleven years after date. Lucretia Arnold'died June 19,1891, and the plaintiff was appointed as administrator of her estate on the eighth day of May, 1893.

<p>Evidence: jury question. Plaintiff testified that a frog in which his-foot caught was not well blocked. Others say that, several days after the injury, the point in the angle was broken off. Witnesses who saw the broken pieces testified that the breaking had occurred-some time back. The weather-stained and worn pieces were shown to the jury. Eight or ten disinterested witnesses testified-that at the time of plaintiff’s injury the frog was so blocked that-a foot could not be caught in its angle. Held, to be a conflict fort the jury.</p>

— Hon. S. H. Fairall, Judge. Action for judgment on a promissory note. Defense, failure of consideration. Counterclaim for damages. Jury trial. Verdict and judgment for defendant. Plaintiff appeals—

— Hon. W. I. Babb, Judge. Action in equity to enjoin the defendants from interfering with the plaintiff’s possession of a small strip of ground off of the south side of lot 3 in Ferree & Muir’s addition to the city of Ottumwa, and for decree declaring the plaintiffs to be the owners of said strip of land. Defendants answered, denying plaintiffs’ right to the possession of said strip of land, or to> be quieted in the title thereto.

— Hon. £L M. Waterman, Judge. Action of right to recover the possession of certain lots in the city of Clinton. Defendant Hall filed an answer and cross petition, in which he claimed to be the owner of the property, and alternately of an undivided interest therein, and asked that, in the event he be found a cotenant with plaintiffs, partition be made of the lots, and for other relief.

— Hon. F. W. Eichelberger, Judge. Defendant was convicted, under a city ordinance, of selling goods, as a transient merchant, without having paid the license fee required, and he appeals.—

<p>Appeal from Pottawattamie District Court. — Hon. W. S. Lewis, Judge.</p> <p>The defendant was convicted of the crime of larceny, and adjudged to be imprisoned in the state penitentiary at Ft. Madison for the term of two years. From that judgment he appeals.</p>

<p>Appeal from Carroll District Court. — Hon. George W. Paine, Judge.</p> <p>This is an action to recover the possession of certain personal property held by the defendant, as sheriff, under an attachment as the property of C. F. Aspegren, and which the plaintiff claims by virtue of an alleged landlord’s lien under a written contract with said Aspegren. Defendant’s demurrer to plaintiff’s petition was sustained, and, the plaintiff electing to stand upon her petition, judgment was entered against her and the surety on her replevin bond in the sum of seven hundred and fifty-four dollars. Plaintiff appeals.—</p>

<p>Conflict in Evidence: jury question. Where the testimony is conflicting as to whether deceased, was killed through his own negligence in blasting and removing coal, or through the negligence of the defendant in not properly caring for the roof, the issue should be left to the jury.</p>

<p>8 9 Insurance: occupancy. An occupancy of a building with intent to burn property therein contained, is not the occupancy which avoids policy stipulations against non-oecupaney.</p> <p>6 Conspiracy: instructions. Evidence which tends to show that plaintiff and persons unknown conspired to burn a building for the purpose of burning personal property contained in it, that the house was not fired by plaintiff but by an unknown incendiary, and that plaintiff planned to realize upon a policy on personal property, which could be done only by burning the building, warrants the submission of said conspiracy, though the conspirators other than plaintiff are not identified.</p> <p>7 Same. A charge that if the jury find that plaintiff and others were engaged in a common, wrongful or fraudulent purpose which involved the burning of the house, one of them carrying out one part of the common plan and others other parts, it is authorized to find therefrom a previous agreement, combination or understanding for such wrongful purpose — simply states that if two or more separately do things to effect a common purpose, the doing of the things warrants the conclusion that there was a previous understanding or agreement to do them — and is right.</p> <p>10 Evidence: relevancy. That a witness says on cross-examination that if a large number of books had been burned in a house as claimed, there would have been remnants, does not permit it to be shown by another that no remnants remained after the burning of another building, no idea being given as to the size of either building or the extent of either fire.</p> <p>5 Practice: harmless error. The court erroneously stated one issue to be whether there was conspiracy to burn a building, the real issue being whether there was one to burn personal property contained in the building. Held, harmless error, because either conspiracy would defeat recovery on policy.</p> <p>1-2 3 Practice: opening and closing. One who admits the allegations of the petition and relies upon affirmative defenses to defeat them is entitled to opening and closing the argument, though plaintiff was first put to full proof.</p> <p>4 New trial will not be granted for the discovery of cumulative evidence.</p>

— Hon. J. H. Preston,' Judge. The defendant was indicted for the crime of resisting an officer. He was convicted, and sentenced to pay a fine, and appeals.

— Hon. D. li. Hind-man, Judge. Suit in equity, by plaintiffs, as judgment creditors of one O. J. Smith, to set aside a certain chattel mortgage executed by Smith to defendant Ellsworth. K demurrer to the answer was overruled, and, plaintiffs refusing to plead further, judgment and decree were rendered dismissing the petition, and plaintiffs appeal*

— Hon. D. R. Hind-man, Judge. Action at law to recover damages alleged to have been sustained by the plaintiff in consequence of a breach of contract on the part of the defendant A demurrer to the petition was sustained, and judgment was rendered in favor of the defendant for costs. The plaintiff appeals.

— Host. J. M. Casey, Judge. On February 2,1891,-the plaintiff, Mrs. L. L. Warn, a judgment creditor of'the firm of Delabaye & Purdy, alleged to be insolvent, brought this action to charge the east half of lots 742 and 743, in the city of Burlington, and sixteen and two-thirds shares of the capital stock in the Merchant’s National Bank of Burlington, as per certificate No. 307, as the property of Hiram. Purdy, a member of said firm, with said indebtedness.

— Hon. C. D. Goldsmith, Judge. In March, 1883, the def endant made to the plaintiff a duebill for one hundred and eight dollars, which is the basis of this action. The following is the third division of the answer: “Third.

— Hon. J. D. Gxfeen, Judge. Action to establish the title in plaintiff to lot 5, block 7, in Green & College addition to Cedar Eapids, Iowa. Decree was entered in favor of the plaintiff, from which defendant appeals. The issues and facts sufficiently appear in the opinion .

— Hon. D. B. Hind-man, Judge. Proceedings by certiorai to determine the legality of a highway alleged to have been established through land of the plaintiff. There was a trial by the court, which resulted in a judgment in favor of the defendants for costs. Plaintiff appeals.

— Hon. Lot Thomas, Judge. This is a proceeding in probate for the sale of real estate to pay debts of the decedent, and for the distribution of the proceeds of sale. From an order of the court refusing to make ascertain disposition of a part of such proceeds, lone Coulson appeals.—

— Hon. A. Van Wagenen, Judge. This is an action for the recovery of certain personal property, or for the value thereof, and for damages for the alleged wrongful and illegal seizure of Ithe same by the defendant sheriff, upon certain executions against the plaintiff. The ground of the action is that the property was exempt from execution. There was a trial by jury, which, resulted in a verdict for the plaintiff.

— Hon. W. I. Smith, Judge. Suit in- equity to compel defendant, a mutual life insurance company, to levy an 'assessment to cover the amount of two certain certificates of membership issued to plaintiff upon the life of Fritz- Sieverts..

— Hon. N. B. Hyatt, Judge. The parties to this action present conflicting claims of ownership to forty acres, of land in Webster county. The suit is in equity, and each party demands that Ms title to the property be established and quieted as against the other. There was a decree in the district court for the defendant, and the plaintiff appeals.

<p>Appeal from Monona District Court. — Hon. A. Van Wagenen, Judge.</p> <p>Action in equity for 'an. accounting and for specific performance. Decree for plaintiff. Defendants appeal.</p>

— Hon. A. Yan Wagenen, Judge. The defendant, other than H. -and N. Beck, is Paul Smith, OH. and N. Beck iane. judgment debtors of the plaintiff company. The judgment was one of foreclosure of ai chattel mortgage upon a traction engine and threshing outfit. The judgment directed a special execution, which issued, amid the property wtas- s/old to/ the defendant Paul Smith for one hundred dollars. The sale was without appraisement.

<p>1 2 3 Dowers Wills election. Unless taking both dower and under the will are inconsistent, or will defeat some provision of the will which devises a life estate with a remainder over, the widow may take in both ways. Severson v. Severson, 68 Iowa, 656; Kyne v. Kyne, 48 Iowa, 21; Snyder v. Miller, 67 Iowa, 261; Van Guilder v. Justice, 56 Iowa, 669; and Gain v. Cain, 23 Iowa, 31, distinguished.</p> <p>4 Same. That a widow who is willed a life estate in land which includes the homestead occupies the whole tract and does not have her dower set apart, does not constitute an election to take under the will, which will estop her heirs from claiming her dower interest.</p>

<p>4 Fraudulent Conveyance: jury question. The fact that a relative knowing the debtor to be in failing circumstances takes a mortgage for more than is due, will support a verdict that the mortgage was taken to defraud creditors.</p> <p>5 Practice. Valid consideration will not avail a creditor who accepts a conveyance to defraud creditors.</p> <p>1 Evidence. Where a stock attached for rent due from a firm is claimed' under mortgage, the mortgagor may be asked whether the debt secured by mortgage was an individual or firm debt.</p> <p>2 Same. As bearing on his intent in making the mortgage he may be asked whether he did not tell mortgagee when he made the mortgage that he had conveyed his homestead to his wife.</p> <p>3 Practice. The objection of incompetency does not enable one to-urge on appeal that a question assumed a fact which was not proven.</p>

<p>Appeal from, Fayette District Court. — Hon. W. A. Hoyt,. Judge.</p> <p>This is an action to recover damages by reason of the delay of the defendant in transmitting a telegram from Webster, in the state of South Dakota, to Aberdeen, in the same state. There was a trial by jury, and a verdict and judgment for the plaintiffs. Defendant appeals.</p>

<p>1 3 6 ©eneral Assignment: demurrer. Code, 2115, provides that a valid general assignment must be without preferences. It was alleged in an attack upon a general assignment that the grantor made several mortgages about the time the deed of assignment was executed, with intent to prefer the mortgagees. Held, that on demurrer, such plea sufficiently avers that the assignment was void.</p> <p>1 2 4 Practice: attaching assigned propertv. Where it is made to appear collaterally that a general assignment is made with preferences which consists of mortgages made about the time the assignment was executed, the property is not in custodia legis and may be attached by creditors. Shoe Oo. v. Mercer, 84 Iowa, 537, and Lampson v. Arnold, 19 Iowa, 479, distinguished.</p> <p>5 Joinder: parties. On an issue whether a general assignment created preferences through mortgages made about the time of its execution, tried between the assignee and general creditors, the preferred creditors are not necessary parties.</p>

— Hon. A. Van Wagenen, Judge. Action at law to recover for personal injuries : alleged to have been caused by negligence on the part :of the defendant. There was a trial by jury, and a ver■dict and judgment were had for the plaintiff. The ■defendant appeals.

Appealfrom Crawford District Court. — Hon. C. D. Hold-smith, Judge. Action in equity to subject real estate to the payment- of á judgment. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals.