Volume 98 — Iowa Reports

— Hon. S. M. Weaver, Judge. The plaintiff is the publisher of the Eldora Herald, and the defendant is the publisher of the Eldora Ledger, both of which are weekly newspapers, published in Hardin county. In January, 1895, the parties named, and the publisher of the Eldora Enterprise, another weekly newspaper of the .county, applied to the board of supervisors to have their respective papers selected as official newspapers, under the provisions of section 307 of the Code.

— Hon. Charles D. Goldsmith, Judge. Proceedings by garnishment to appropriate shares of crops grown on leased premises, which were to be paid as rent, in satisfaction of judgments against the landlord. A creditor of the landlord intervened, claiming tbe shares specified under a mortgage executed by his debtor. The two causes were tried together by the court. A judgment was rendered in each in favor of the intervener, and the plaintiff appeals.

— -Hon. D. R. Hind-man, Judge. Action in equity, to quiet, in the plaintiffs’ • title to an undivided half of certain real estate, for a partition thereof, and for general equitable relief. There was- a hearing on the merits, and a decree for the plaintiffs. The defendants appeal.

— Hon. Gteorge W. Paine, Judge. Action in equity, for the partition of real estate. A demurrer to the petition was sustained, and, the plaintiffs refusing to plead further, judgment was rendered in'favor of the defendants. The plaintiff, W, B, R. Stephens, appeals.

— Hon. A. R. Dewey, Judge. Action at law to recover damages for failure to transmit a telegraphic message. There was a demurrer to the petition, which was sustained. From a judgment dismissing the petition, the plaintiff appeals.

— Hon. A. B. Thornell, Judge. Action at law to recover of defendant the amount of a certain bill of goods sold to his wife. Judgment for defendant. Plaintiff appeals.

<p>Appeal from Floyd District Court. — Hon. P. W. Burr, Judge.</p> <p>Indictment for burglary. Verdict of guilty, and a judgment, from which the defendant appealed.—</p>

— How. E. E. Cooley, Judge. Action of replevin, to recover the possession of certain merchandise, which it is claimed the plaintiff consigned to defendant Potter, to be sold on commission. Trial to a jury. Verdict and judgment for defendant, Hoffman, and plaintiff appeals.

— Hon. C. M. Waterman, Judge. Action at law upon a fire insurance policy. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

— Hon. D. R. Hindman, Judge. Action for the foreclosure of a mortgage. Judgment for plaintiff and defendant appeals. The principal is the same as in forged instruments, or in instruments made by persons not having capacity. The fact that the instrument is put in the form of negotiable paper, gives it no additional validity. The paper is not, in fact, or in law, what it pretends to be, the obligation of an alleged maker. Briggs v. Ewart, 51 Mo. 245 (11 Am. Eep. 447); Dan. Neg.

— Hon. W. A. Hoyt, Judge. Appellees, Mary H. Teague and Lewis Mohlis, are the administratrix and administrator of the estate of Thomas Teague, deceased, and appellee Fortsch, is the purchaser of the real estate sold by them, as hereinafter stated. Appellant, on September 29,1891, filed a claim against said estate, which was allowed, on April 7, 1893, in the sum of two thousand, one hundred and seventy-three dollars and fifty-six cents.

— -Hon. C. M. Waterman, Judge. The defendant was indicted and tried for the crime of seduction, was found guilty, and sentenced to be confined therefor for the period of eighteen months in the state penitentiary. He appeals from said judgment.

— Hon. O. D. Goldsmith, Judge. Action at law to recover damages for the conversion. of a stock of merchandise and certain books of account. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal.

— Hon. T. M. Giberson, Judge. The plaintiffs are the beneficiaries named in a certificate issued by the defendant corporation to John McGowan for the sum of two thousand dollars. The defendant corporation includes ,in its organization a grand council and subordinate councils; and Cedar Rapids Council, No. 11, is of the latter, and John McGowan was in his lifetime a member thereof. The certificate held by him as such member issued June 80, 1890.

<p>Appeal from Jackson District Court. — Hon. William F. Brannan, Judge.</p> <p>The defendant was indicted for murder in the first degree. He was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for eighteen months, and he appeals.</p>

<p>Appeal from Monroe District Court. — Hon. W. I. Babb, Judge.</p> <p>The plaintiffs allege that the parties to this action are the owners, as tenants in common, of certain real estate, which is described, and that it cannot be equitably divided among its owners. The prayer of the petition is that the respective interests of the parties in the land be confirmed, and that it be sold, and for such further relief as may be proper. Answers to the petition were filed; a demurrer to the answer of Mauy J. Myers (formerly Watson) and Eliza E. Watson, was overruled; and, the parties who demurred refusing to plead further, a decree was rendered from which they appeal.</p>

<p>Appeal from Winneshiek District Court. — Hon. E. E. Cooley, Judge.</p> <p>Action in equity to recover an amount alleged to be due on a promissory note, and to foreclose a mortgage given to secure its payment. The defendants admit the making of the note, and the execution of the mortgage, but allege that the note has been fully-paid. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals.</p>

<p>2 Criminal taw: husband and wife: Coercion. On the trial ol one jointly indicted with her husband for the unlawful selling of intoxicating liquors, where the evidence shows that she acted under the express orders of the husband, who had complete control over her, it is proper to charge that, in o,-der to raise the presumption of coercion, it is sufficient if the husband was about the premises, even though in another room, if the wife was so immediately near him as to be fairly held under his control.</p> <p>3 Evidence. Evidence of declarations of a husband that his wife was running a saloon in her own name, and that he had nothing to do with it, which is objected to as incompetent, is inadmissible as hearsay, on the prosecution of the wife for maintaining a nuisance by the sale of intoxicating liquors.</p> <p>4 Same. Evidence of the conviction of one jointly indicted with defendant on a criminal prosecution has no tendency to prove that defendant is innocent, and is inadmissible.</p> <p>1 Practice: Indictment. That a person not a member of the grand jury was present before it and advised with it concerning an indictment is not ground for setting aside the indictment, under Iowa'Code, section 4337, unless it also be shown that he was not “required or permitted by law ” to be present.</p>

<p>Appeal from Mahaska District Court.— Hon. A. R. Dewey, Judge.</p> <p>Action for the partition of real éstate. The ascertainment of the respective interests involves the construction of a will. John Capper died testate in Mahaska county, Iowa, in 1867, and his will was in November of that year admitted to probate. The following are three paragraphs of his will: “First. I will and declare that, as soon after my death as practicable, my just debts and funeral expenses be paid, and that a certain tract of land, containing four (4) acres, described in a deed from John S. Henry to John Capper, dated June 16th, 1858, and recorded on pages 10 and 11, vol. E, of the Record:! of Mahaska County, Iowa, be sold. Second. I will and bequeath to my beloved wife, during the minority of my children, the entire use and benefit of my real estate, for the purpose of supporting and educating my children; and, when my youngest child ar-iuves at full age, I desire that the real estate (after my wife’s dower interest is set off to her herein) be equally divided between my children, viz. Margaret Jane, Rose Ann, Oscar S., Flora E., Harvey M., and John K., their heirs, or survivors of them. Third. I will and bequeath to my daughter Mary Elizabeth, who resides in the state of Indiana,— she having been raised by her grandfather, — the sum of twenty-five dollars, to be paid to her by my executor on final settlement of my estate; and, if there is not a sufficient personal estate to pay said legacy, the •same to be paid out of my real estate.” Mary Elizabeth, mentioned in the third paragraph, is the plaintiff, and daughter of the testator by a former wife, as was riso Margaret Jane, mentioned in the second paragrapn. Lucinda Capper is the surviving widow of the testator. The other defendants are the children of the testator and Lucinda Capper. It will be observed that the will gives to the plaintiff twenty-five dollars, but no interest in the real estate. Margaret Jane, who is one of the devisees of the real estate, died testate in 1869; giving, by her will all her property to the plaintiff. The youngest child of the testator is of full age, and the real estate, under the provisions of the will, is for distribution. Plaintiff brings this action for partition, claiming an interest of one-seventh of two-thirds because of the devise to her from Margaret Jane Capper. In her petition she recites the facts as to the interest of each, on. the basis of her interest as above stated, and she asks a confirmation thereof, and for partition accordingly. To the petition the defendants filed a general demurrer, which the court overruled. Thereupon the defendants answered, and to the. answers there was a reply. Upon the issues presented the cause proceeded to trial. At the close of plaintiff’s evidence, the defendants moved for judgment in their favor, on the ground that the undisputed evidence showed that the plaintiff had no interest in the land, whatever, which motion the court sustained, and from the judgment the plaintiff appealed.—</p>

W. F. Bean-nan, Judge. Action.at law, aided by an attachment, upon four promissory notes. The defendant admitted the execution of the notes, but denied that he was to pay interest on the same, and pleaded a counter-claim for work and labor done, for property sold and delivered, for rent of land, for the wrongful and malicious suing out of the writ of attachment, and for various other matters not necessary to be here mentioned.

<p>1 8 10 Mechanic’s Lien: sub-contractor. A property owner may make any legal contract he sees fit with another for the construction of a building on his property, with any provision as to the time and manner of payment, and may comply with it in all respects without being liable to sub-contractors who have furnished labor and material which have gone into the building, and for which they have not been paid, even- though he has knowledge of that fact, unless by the terms of his contract he has reserved the right to discharge the claims of sub-contractors from the fund due to the principal contractor.</p> <p>1 8 Same. A sub-contractor is bound by the terms of his principal’s contract with the owner, and as against the latter acquires no right to compensation for labor furnished, except as provided for therein.</p> <p>2 4 Lien statement. A notice of lien given by a sub-contractor who furnishes labor and material used in the construction of a county court house stating that the “ affiant hereby claims a mechanic’s lien against such county,” and the funds set apart for the erection of such court house, is not invalid because he claims a lien, upon the fund, which is something upon which no lien is given by statute.</p> <p>1 6 9 • 10 Construction on contract. Sub-conlractor. Acts Twentieth Genj eral Assembly, chapter 179, provides that sub-contractors furnishing labor or materials for a public building shall have a claim for the value thereof, “in an amount not in excess of the contract price ” of the building; and a contract for the erection of a county building provided for payments on the price at stated times, of 90 per cent., on estimates of the superintending architect, and for payment of the remaining 10 per cent., on the completion and accexttance of the entire work, “and as soon thereafter as the party of the second xoart (the county) is assured against the existence of any mechanic’s liens on said building,” and provided that if the contractors failed to complete the building within the contract time, the county should complete it at their expense and deduct from any sum due on the contract the value of work or material furnished thereafter. Held, that the county after having' finished the work on default of the contractors at a cost, including prior payments properly made on the contract, greater than the contract price, was not liable to sub-contractors on the theory that it had contracted to reserve the fund of 10 x>er cent, for their benefit.</p> <p>1 6 8 11 Same. The owner of a building whose contract with the principal contractor for its erection, provides for x>ayments at stated intervals and does not reserve the right to discharge claims of sub-contractor from the fund otherwise due the principal contractor, is entitled to make payments according to the contract, without liability to sub-contractors, though he knew that they had been furnishing labor and materials, and had not been paid therefor by the contractor.</p> <p>1 5 6 Same. Sub-contractors who furnished labor and materials with the knowledge of the owner cannot complain that he paid the contractor in advance of the estimates, under a contract providing for payment of a certain per cent, monthly on estimates of the superintending architect, where it appears that the contractor was not paid more than a percentage covering the work actually done, and that, on his default in completing the work, the owner finished it, at a total cost greater than the contract price.</p>

<p>3 5 6 7 8 9 Construction of Wills: legacies. Testator, after making certain legacies, to be paid from the proceeds of the realty, gave other legacies, to be paid from the avails of personalty, and subsequently gave the proceeds of the residuary estate, real and personal, to be divided among certain persons. Held, that in case the personal estate was insufficient for the payment of the legacies directed to be paid therefrom, such legacies, after payment of the legacies directed to be paid from the proceeds of the realty, should also be paid from the balance of such realty proceeds.</p> <p>1 2 4 5 7-10 Same. Clause 14 in a will, divided all the realty between four persons, and a later clause ordered that both personal and real property should be divided as clause 14 directed, a codicil referred to clause 14, and ordered that the n al property should be divided between five persons, naming the fifth. Held, this fifth person takes a fifth share in the residue of the realty, and no share of the personal property.</p> <p>11 Interest on note of legatee. Where the rights of creditors are not involved, a note payable to testator with interest which provides that instead of the maker’s paying the samé in the testator’s lifetime, the amount of the note may be deducted from the share of testator’s estate to be left the maker, the interest on the note ceases to run on the death of testator.</p>

— Hon. C. M. Waterman, Judge. On the fifteenth day of March, 1895, appellant filed his petition of intervention, showing as follows: That at the January term, 1895, of said court, the plaintiffs obtained judgment against the defendants in this action; that execution issued thereon; that the same was levied by the sheriff, on or about February 18, of said year, on certain real and personal property described; that by virtue of said levy said chattel property will be offered…

<p>Appeal from Howard District Court. — Hon. E. E. Cooley, Judge.</p> <p>Action of replevin. Trial by jury. Verdict for the defendant. Plaintiff appeals,</p>

— Hon. Fred O’Donnell, Judge. Action at law, in which, plaintiff seeks to recover damages for being wrongfully ejected from one of defendant’s trains. Trial to a jury, and judgment for plaintiff, and defendant appeals.

— Hon. A. J. House, Judge. Action for damages, for injuries sustained by reason of falling upon a defective sidewalk. Trial to a jury, and verdict for plaintiff. Defendant appeals. — ■

— Hon. W. A. Hoyt, Judge. Action at law by the administrator of the estate of Charles Hanley, deceased, to recover damages resulting from the death of Hanley, which is alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. H. M. Towner, Judge. Action at law on a policy of insurance issued by the defendant, to recover the amount of a loss by fire, alleged to be covered by the policy. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. J. H. Henderson, Judge. Action at law, by Priscilla Stuber, next Mend, to recover damages for injuries done to one Emma Stuber, bv a dog, alleged to belong to defendants. There was a trial to a jury, which resulted in a verdict for defendants. Plaintiff filed a motion for a new trial, which was sustained by the court, and the defendants appeal.

— -Hon. Lot Thomas, Judge. The defendants, other than Hoskins, are the sheriff and the clerk of the court in Buena Yista county.

— Hon. David Ryan, Judge. This action was commenced by D. Warren, plaintiff, and after the trial in the court below, he having departed this life, his administratrix was substituted as plaintiff.

<p>Specific Performance: reformation. Plaintiff knew that his debtor owed a bank about two thousand dollars, and that the bank held a land contract as collateral. He entered into an agreement with it that this land contract should be assigned to him upon the payment of what was due the bank from plaintiff’s debtor. This was made with an officer who was acting as cashier, temporarily, and who had little personal knowledge of the details of its affairs. In making the computation, this officer, by overlooking one note, found the sum due to be about fourteen hundred dollars. This mistake, did not, in any way, change plaintiff’s position or lose him any remedies against his debtor which should and could have been used. Held, the contract should have been reformed to include the omitted note, and that no specific performance of the agreement to assign the land contract should be decreed, except upon payment of all due the bank, including .the omitted note.</p>

— Hon. W. B. Qttarton, Judge. The defendant was indicted for keeping and maintaining a nuisance by the sale of intoxicating liquors. He pleaded not guilty. A trial was had, which resulted in a verdict against him, and from a judgment on the verdict he appeals.

<p>Liens: horse trainer. A person who keeps and trains a horse, under a contract with the owner, has a lien at common law for the labor, skill and expense bestowed, and which has enhanced the value of the horse.</p>

— Hon. James D. Smyth, Judge. This is a proceeding upon the separate petitions of the State Bank of Keokuk, Iowa, and of A. C. Hosmer, creditors, for an order declaring certain priorities in their favor, and for an order of distribution accordingly, and the- answers of Wells M. Irwin, assignee, thereto. The issues joined on both petitions were submitted together, as in equity, and a decree rendered in favor of the petitioners, from which the defendant, Wells M. Irwin appeals.

— Hon L. E. Eel lows, Judge. ' This is a suit in equity to reform a written contract, and to recover thereon for fraud and deceit on the part of the defendants, whereby the plaintiff suffered damages. There was a full trial on the merits of the case, and a decree was entered dismissing the petition. The plaintiff appeals.

— Hon. W. S. Lewis, Judge. Prior tó June 18, 1888, Rudolph Schneitter was the owner of the west one-half of the northeast one-fourth of section 88, in range 68, township 42, in Fremont county, Iowa. Sarah Schneitter was his wife. June 18, 1888, said Schneitter and wife executed a warranty deed for said land to Emma I. Carman, one of the defendants herein.

— Hon. S. M. Weaver, Judge. Action at law to recover damages for personal injuries received by plaintiff, by reason of a defective sidewalk, or crossing, in tbe defendant city. There was a trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. P. W. Burr, Judge. Action at law, to recover of the defendants the sura of two thousand and twelve dollars and twenty-seven cents, with interest, for materials furnished, and labor performed, for the erection of a building in the town of Garner. There was a trial by jury, and a verdict and judgment in favor of plaintiffs, and against the defendant, Ripley, for the sum of nine hundred and ninety-two dollars and sixty-two cents. Prom that judgment he appeals.

— Hon. George H. Carr, Judge. Action in equity to confirm in the plaintiffs the title to certain real estate, and to quiet that title as against the defendants. There was a hearing on the merits, and a decree for the defendants. The plaintiffs appeal.

— Hon. Scott M. Ladd, Judge. These are actions at law, brought by the plaintiffs, respectively, to recover judgments against the defendants, on accounts, and upon certain promissory notes. Attachments were sued out in each case, and levied upon a stock of merchandise as the property of the defendants.

— Hon. Lot Thomas, Judge. Action to recover five hundred dollars, alleged to be an agreed commission for procuring a purchaser or effecting an exchange of certain real estate for other property. There was a trial by jury, and a verdict and judgment for the plaintiff for the amount claimed. Defendant appeals

One, Fred Herring, was, on a proceeding in said court, enjoined from selling intoxicating liquors. Plaintiff filed an information in .the district court, charging a violation of the injunction. On the hearing before the defendant; Herring was adjudged not guilty, and discharged. Because of alleged illegalities in the proceedings, the writ in this proceeding issued, and a return thereto has been made. The questions presented will be noticed in the opinion.

— Hon. H. E Deemer, Judge. Plaintiff, as assignee of one August Meyer, brings this action of replevin, for certain personal property, against the defendant, as sheriff of Pottawattamie county, Iowa, who held the same by virtue of a levy under a writ of attachment issued out of the office of the clerk of the district court of said county, in a case pending in said court, wherein Sears, Erizzel & Co., were plaintiffs, and August Meyer was defendant.

— Hon. A. B. Thornbll, Judge. Suit in equity to reform a contract of assignment of certain accounts made by defendant to plaintiffs, and to recover on the contract so reformed the. sum of two hundred and seventy dollars, being the value of certain machinery delivered by plaintiffs to defendant in consideration of the assignment.

<p>Appeal from O’Brien District Court. — Hon. Scott M. Ladd, Judge.</p> <p>Indictment for murder. Trial to a jury, and verdict and judgment for manslaughter. Defendant appeals.</p>

— Hon. C. M. Waterman, Judge. The petition shows that in February, 1874, F. A. Drake became a judgment creditor of George W. Fulliam, which judgment has been assigned to plaintiff; that George W. Fulliam died prior to June 14, 1898; that J. D. Fulliam, defendant, became the administrator of his estate; that her claim, in judgment, was duly filed and allowed against said estate; that the personal estate is insufficient to pay the judgment; that George W. Fulliam, at the time…

Superior Court. — Hon. J. E. P. McGee, Judge. Action at law to recover damages of the defendants for setting out a fire in the month of September, 1894. The answer was a genera] denial. The case was tried to a jury, which returned a verdict for plaintiff against Henry Schultz, Sr., and Julius Schultz, in the sum of six hundred 'and twenty-five dollars, upon which judgment was rendered, and they appeal.

— Hon. J. H. Henderson, Judge. The defendant was indicted, tried for, and convicted of, the crime of forgery, and adjudged to be imprisoned in the penitentiary for one year. From this judgment he appeals.

— TIon. A. ft. JDewey, Judge. Action in equity to vacate a decree authorizing the redemption of real estate from excution sale, and for general equitable relief. There was a hearing on the merits, and a decree as prayed. The defendant, Clarrissa Shaver, appeals.

— Hon. N. W. Macy, Judge. Action at law to recover damages alleged to have been caused by the location of the railway of the defendant on a street by the side of a lot in the city of Council Bluffs, claimed to have been owned by the plaintiff. There was a trial by the court, without a jury, and a judgment in favor of the plaintiff for one hundred and twenty-five dollars.

— Hon. M. J. Wade, Judge. Defendant was indicted, tried and convicted of the crime of perjury, and judgment of imprisonment in the penitentiary for two years entered against him, from which he appeals.

— Hon. J. H. Preston, Judge. Plaintiffs, the owners of lots 4 and 5, in block No. 18, of Carpenter’s second addition to the city oi Cedar Rapids, bring this action to recover damages to their said property by reason of a claimed change in the grade of the street in front thereof.

— Hon. W. A. Hoyt, Judge. Action to enjoin the defendant from engaging in trade in violation of his contract. A temporary injunction issued, which, on motion, was dissolved, and from the order the plaintiff firm appealed.

— How. C. D. Goldsmith, Judge. Creditors’ bill, to subject certain real estate, the legal title to which is in Eldora T. Criswell, to the payment of a judgment held by plaintiff, against A. S. Criswell. Trial to the court. Decree for defendants, and plaintiff appeals.

— Hon. S. M. Weaver, Judge. Action at law to recover damages for the alleged breach of a written contract. A demurrer to the petition was sustained, and judgment was rendered for the defendant, for costs. Plaintiff appeals.

<p>1 2 3 5 Pleading and Practice: division or answer. Where certain matters are plead in one division of an answer, and the same with additional matter in a second, evidence which tends to establish the second while it fails to prove the first division, will be treated as having been offered to sustain the second division.</p> <p>1 Pleading and Proof: evidence or contract: Release of mortgage. In a suit upon a note one division of the answer averred that defendant, under a contract with payee, was to and did perform certain services for payee which should be received for full payment of said note.</p> <p>2 A second division repleaded this, and added that the note in suit was one of three, and that after, payment of the other two, the payee, to carry out said agreement, and in consideration of said services, executed a release of the mortgage which secured all three of the notes.</p> <p>3 A third division pleaded that the release was intended to discharge defendant from all liability on the note in suit, and as a conclusion, that it operated as a gift of the debt.</p> <p>4 The proof tended to show the rendition of said services, and a written release of the mortgage was put in. 'There was none that the services were rendered pursuant to any agreement that they should pay the note in suit. Held:</p> <p>a. The first division, asserting nothing but a oontraot to apply services on a note, fails for want of proof of such contract.</p> <p>4 b. But the matters set. out in the divisions 2 and 3, should have gone to the jury because:</p> <p>First, While there was no direct proof that the contract was made, there is proof tending to show that things were done by both parties which would be in execution of the contract, if one was made.</p> <p>5 Second, The doing by both, of what one claims should have been done under a contract, is prima facie evidence that there was an agreement to do them.</p> <p>6 Third, The release was prima facie evidence that the note in suit was paid, without evidence to prove a contract that certain services should pay that note.</p> <p>7 Conclusions of Witnesses. When the ability of a party to speak English is in issue, a witness may say “she spoke in broken English so that she could be understood.” He may be asked “When you would talk with her in English, did she appear to understand what you said?” and “when you would talk to her in English, would you have to repeat it over and over, or would she respond without? Would her answers be responsive when you put a question to her?”</p>

— Hon. Z. A. Church, Judge. Suit in equity, to quiet the title to certain land in Sac county, in plaintiff. A demurrer to the defendants’ .answer was sustained, and the defendants appeal.

— Hon. George W. Wakefield, Judge. September, 1,1894, plaintiff and defendant entered into an oral contract, whereby it was agreed that plaintiff should receive a commission of one hundred and fifty dollars when he should succeed in disposing of certain personal property, then belonging to the defendant, on terms acceptable to the defendant.

— Hon. J. H. Applegate, Judge. Action to recover the possession of three sets of double buggy harness, two sets of heavy work harness, and six men’s leather-covered tree saddles, of the value of one hundred and eighty-two dollars and fifty cents, or the value thereof, alleged to be wrongfully detained by the defendant, as sheriff, under an execution, as the property of J. A. Darnall.

— Slots. Walter I. Smith, Judge. This is an appeal by the defendants, from an order forfeiting a bail bond, given in a criminal case, upon an appeal from the district court to this court.—

— Hon. W. R. Green, Judge. Action at law to recover double the amount of damages alleged to have been sustained by the plaintiff by reason of injuries to live stock caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Appeal' from Calhoun District Court. — Hon. Gteorge W. Paine, Judge. . Action in equity for the foreclosure of a chattel •mortgage, for the appointment of a receiver of the mortgaged property, and to have settled the interests of the defendants in the mortgaged property and its proceeds.

S. M. Ladd, Judge. Action for the value of goods shipped over defendant’s line of road. Judgment for the plaintiff, and the defendant appealed.

<p>Appeal from Linn District Court. — Hon. J. H. Preston, Judge.</p> <p>This is a' proceeeding to partition a water power on the Cedar river, at the city of Cedar Rapids, consisting of a dam, bulkheads, race-ways, retaining walls, pond, etc. Prom an order of the district court setting aside the report of the referees, recommending a sale of the power, because it could not be divided, and from another order confirming the report of subsequent referees, recommending a partition and the expenditure of large sums of money, in order to accomplish the setting aside of shares to the respective parties, and from a still further order, directing certain repairs and improvements to be made of the property. N. E. Brown and Susan Brown appeal.</p> <p>Partition takes place when two or more joint tenants, co-parceners, or tenants in common agree to divide the land so held among them in severalty, each taking his distinct part.</p> <p>2 Bl. Com. 324.</p> <p>Joint tenants may also sever the tenancy voluutarily by deed, or they may compel a partition by writ of partition.</p> <p>4 Kent, Com. p. 379.</p> <p>Co-tenants, no longer content to enjoy their property in moities, may, if it be susceptible of division, have it transformed into estates in severalty, and one of such estates assigned to each of the former occupants for his sole use, and as his sole property.</p> <p>Freem, Co-tenancy & Partition, section 393.</p> <p>Neither this, nor any other court, has ever held that a water power, owned in common by three or more persons, whose interests were varied, could be divided so that each would receive his share of the flow of the water.</p> <p>Cooper v. Cedar Rapids Water Power Go., 42 Iowa, 398; Doan v. Metcalf, 46 Iowa, 120; Smith v. Smith, 10 Paige, 470.</p> <p>A division of water that is variable in its flow is an impossibility.</p> <p>McGillivray v. Evans, 27 Cal. 93; Higginbottom v. Short, 25 Miss. 160, 57 Am. Dec. 198; Hartmann u. Hartmann, 59 111. 103; Royslon v. Royston, 13 G-a. 425; Freem. Co-tenancy and Partition, section 536; Lenfers v. Henke, 73 111. 405 (24 Am. Rep. 263).</p> <p>There should not be an attempted-division of the water when such a thing is practically impossible.</p> <p>Field v. Leiter, 117 111. 341; White v. Story, 2 Hill, 549; Crowell v. Woodbury, 52 N. II. 613.</p> <p>When such is the case a sale should be ordered instead of an attempted division.</p> <p>Freem. Co-tenancy and Partition, section 536; Higginbottom v. Short, supra; Dyer v. Lowell, 30 Me. 217; Field v. Leiter, supra.</p> <p>The commissioners have no other duty to perform or authority to act, than to divide the estate according to the directions contained in the warrant.</p> <p>Freem. Co-tenancy and Partition, section 522; Brown v. Bulkley, 11 Cush. 168; Field v. Leiter, supra.</p> <p>The.district court held it to be the subject of partition (against appellee’s contention), which left the only remaining question of the method of division. When the questions presented by this appeal are decided, whatever is left is simply mechanical, the controversy between the parties is ended.</p> <p>Johnson v. Butler, 1 Iowa, 459; Iowa College Trustees v. Davenport, 7 Iowa, 213; Callanan v. Shaw, 19 Iowa, 188; Burnham v. Thompson, 35 Iowa, 421; Brown v. TIarper, 54 Iowa, 546; Sunberg v. Linn County Dist. CL, 61 Iowa, 597; First Nat. Bank v. Gill, 50 Iowa, 425; Bicklin v. Kendall, 72 Iowa, 490.</p>

<p>Appeal from Keokuk District (hurt. — Hon, David Ryan, Judge.</p> <p>Indictment for rape. Verdict of guilty, and sentence of twenty-five years in the penitentiary, defendant appeals,</p>

- — Hon. George W. Wakefield, Judge. Plaintiff, on March 29, 1894, began its action in the district court of Woodbury county against the defendants, for the establishment and foreclosure of' a merchanic’s lien. The petition charged that on April 22, 1891, plaintiff made a contract with Eva M. Haworth and I..

— Hon. A. R.' Dewey, Judge. This is an action in equity, brought by plaintiff to require the defendant to account for the rents and profits of a certain two hundred and forty acres of land in Mahaska county, which belonged to the plaintiff, received by the defendant as agent for the plaintiff for the years 1878 to 1891, inclusive.

— Hon. Charles JD. Goldsmith, Judge. Plaintiff brings this action in equity to recover judgment against the defendants Louise Miller and Michael Miller, her husband, for balance of account for material furnished under contract for the erection of a certain building, and for the foreclosure of two mechanic’s liens.

— Hon. William G. Thompson, Judge. Appeal from an order dismissing defendant’s petition for a new trial of a case of the same title, which resulted in a verdict and judgment for the plaintiff, in the sum of six hundred dollars.

— Hon. N. W. Macy, Judge. Action to recover damages for a personal inj ury sustained by the plaintiff while traveling as a passenger on the defendant’s railroad. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. D. R. Hind-man, Judge. On July 19,1894, plaintiffs commenced this action in equity to establish and foreclose a mechanic’s lien, for lumber furnished to defendant Hile, for the erection of a dwelling house, on certain land described. The defendant Ellsworth alone, answered. Default and judgment for five hundred and fifty-four dollars and eighty-four cents were entered against Grile, and plaintiffs’ claim for a mechanic’s lien was denied. Plaintiffs appeal.

— Hon. N.W. Maoy, Judge. Action at law upon a life insurance policy. Trial by jury. Yerdict and judgment for the plaintiff. Defendant appeals.-

— Hon. C. D. Goldsmith, Judge. This is an action to recover damages to the rental value and to the market value of the east one-half of the southwest one-fourth of section 34, in township 82, range 37, in Crawford county, Iowa, by reason of the action of the defendant in obstructing what plaintiff claims to be a public highway on the south side of said section, and on the line of said land, and which forms the dividing line between Crawford and Shelby counties.

<p>Appeal from AUamahee District Court. — TIon. A. N.* Hobson, Judge.</p> <p>Action to recover specific personal property. Judgment for plaintiff and the defendant appealed.—</p>

— Hon. S. H- Pair-all, Judge. Proceeding in probate for an order for the return of money alleged to have been paid by mistake. There was a trial by the court, a finding in favor of the plaintiffs, and an order that the defendant pay to the plaintiffs the amount in controversy. The defendant appeals.

— Hon. Z. A. Church, Judge. A ction in equity to have canceled a conveyance of real estate, for the partition of. the real estate, and for other relief. There was a hearing on the merits, and a decree in favor of the defendant, Jacob Miller. The plaintiffs and the defendant, Edward Morris, appeal.

— Hon. John E. Caldwell, Judge. Action at law upon a policy of insurance, to recover for a loss alleged to have been covered by it. There was a trial on the merits, which resulted in a verdict for the plaintiff, by direction of the court, and a judgment for the amount of the verdict. The defendant appeals.

— Hon. D. R. Hind man, Judge'. On April 9,1894, the defendants filed their petition under section 8154, of the Code, to set aside a default and judgment rendered against them in this case, at the preceding February term of said court, and for leave to defend against plaintiff’s cause of action, and to restrain the sale of certain real estate under special execution issued on said judgment.

— Hon. Z. A. Church, Judge. Suit in equity to subject certain land, the legal title to which, is in the name of the defendant, Mary P. Hecht, to the payment of a judgment against the defendant John Hecht. There was a decree for the plaintiffs, and defendants appeal.

— Hon. Z. A. Church, Judge. This ease had its origin before a justice of the peace, where a judgment by default was rendered against the defendants for the possession of a farm. The defendants appeared before the justice, and moved to set aside the default. The motion was overruled. The defendants then removed the cause to the district court by writ of error.

— Hon. F. R. G-aynor, Judge. The first of these suits is an action for a partnership accounting, for the appointment of a receiver to take charge of the firm property, and for an induction restraining defendant from collecting any debts due the firm, or from disposing of any of the property thereto belonging.

— Hon. W. P. Wolf, Judge. This is an action to recover damages for the death of John Graham, an engineer, who was fatally injured by a collision of two freight trains on the defendant’s railway, between Anamosa and Stone City, Iowa, on January 27, 1898.

— Hon. J. L. Husted, Judge. Plaintiff states as her cause of action that John Nelling, while in the employ of defendant as a section man, was, without fault or negligence on his part, and because of certain acts of negligence, specified, on the part of defendant’s employes, run over by one of defendant’s trains, and killed, wherefor she asks to recover ten thousand dollars damages. Defendant answered, denying generally, and alleging contributory negligence.

<p>Appeal from Gass District Court. — Hon. Scott Lewis, Judge.</p> <p>Action for personal injuries. Judgment for the defendant, and the plaintiff appealed.</p>

— Hon. A. B. Thornell, Judge. Action to recover double damages for stock injured, also for stock killed. Trial by jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. F. Oliver, Judge. Suit in equity for the specific performance of a written contract for the sale of certain real estate. There was a decree for the plaintiff; and there was a matter of dispute as to the right to part of the purchase money, among the defendants. The court, by its decree, awarded the money in dispute to the defendants, who are creditors of the vendors, and the other defendants appeal. The facts appear in the opinion.

— Hon. George W. Wakefield, Judge. Suit in equity to cancel certain corporation bonds held by the defendants. There was a decree for the plaintiffs, and the defendant, Prank Larrabee, appeals.

Appeal erom Lyon District Court. — Hon. Scott M. Ladd, Judge. Action at law to recover compensation for work and labor performed. The defendant pleaded a settlement and payment. Trial to a jury. Yerdict and judgment for plaintiff, and defendant appeals.—

— Hon. T.M. Gtberson, Judge. Action in equity to enjoin the keeping for sale and selling of intoxicating liquors, and for the abatement of an alleged nuisance. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals.

— Hon. A. Yan Wagenen, Judge. Action at law to recover the possession of specific personal property and for its wrongful detention. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. S. M. Weaver, Judge. Action in equity to compel the conveyance of certain real estate, or, if that cannot be done, to recover the value thereof. Defendant answered, denying generally, and by cross-bill asks for an accounting and judgment. Plaintiffs, in reply, deny the allegations in the cross-bill. Decree was rendered dismissing plaintiffs’ petition, from which they appeal.

— Hon. Scott M. Ladd, Judge. Action of replevin. Trial by jury. Verdict for the plaintiff. Motion in arrest of judgment sustained in part, and motion of the plaintiff for judgment for the value of the property overruled. Plaintiff appeals.

<p>Appeal from Carroll District Court. — Hon. C. D. Goldsmith, Judge.</p> <p>Action on a policy of fire insurance. Judgment for plaintiff, and the defendant appealed.</p>

— Hon. W. F. Brannan, Judge. Defendant was convicted of the crime of larceny, and sentenced to imprisonment in the penitentiary for the term of ten months. To reverse the judgment of the district court, he prosecutes this appeal.—

— Hon. TM. Gtberson, Judge. Action at law to recc. er damages for a personal injury. Trial by jury. Verdict and judgment for the plaintiff. Defendant appeals.

— Hon. Scott M. • Ladd, Judge. Action at law to recover the possession of specific personal property. There was a trial by the court, without a jury, and a judgment for the defendants. The plaintiff appeals.

— Hon. John F. Oliver, Judge. Action of mandamus to compel the defendants, as officers of the school districts named, to levy a tax to satisfy a judgment in favor of plaintiff against the independent school districts of Riverside, rendered on the fourth day of August, 1885.

<p>Appeal from Des Moines District Court. — Hon. James D. Smyth, Judge.</p>

D. R. Hind-man, Judge. Indictment for rape. Verdict for an assault with intent to commit rape, and the defendant appealed.—

Judge. -Hon. P. B. Wolfe, The defendant Walliker is the owner of a lot in the city of Clinton. This is an action to recover of said defendant the first installment, being one-fifth of an assessment made against the said defendant and his lot for grading, guttering, and paving the street upon which his lot abuts, and to establish the said assessment as a lien upon the lot. There was a trial to the court and a decree for the plaintiff. Defendants appeal.

— Hon. D. R. Hind-man, Judge. The defendant was accused of the crime of seduction, tried, found guilty, and adjudged to be imprisoned in the state penitentiary at Ft. Madison, at hard labor, for the term of eighteen months. From that judgment he appeals.

— How. P. W. Burr, Judge. The defendant was convicted of the crime of forgery, and from the judgment, which required that he be imprisoned in the state penitentiary at Anamosa, at hard labor, for the term of six months, he appeals.

<p>1 Objection: ruling waived. An objection to documents offered in evidence is waived by failing to ask for a ruling thereon, which was reserved at the time the offer was made.</p> <p>2 Practice: juror as witness. A statement by the court that if any of the jurors have any personal knowledge of the facts in controversy, it is his duty to declare same in open court, in response to which one of the jurors whose name was indorsed on the indictment as a witness before the grand jury, states that he has knowledge of the case, and testifies thereto, as a witness, is proper .under Code 4433, providing that if a juror has personal knowledge of a fact in controversy, he must declare the same in open court, during the trial, and such a proceeding is not objectionable on the ground that there were only eleven jurors when the testimony was given.</p>

— Hon D. R. Hind-man, Judge. Action to recover fifteen thousand dollars damages for personal injuries alleged to have been sustained by reason of negligence on the part of defendant’s officers in the construction of one of the highway bridges, and in keeping the same open to public travel when in a dangerous and defective condition. Defendant answered, denying generally, and alleging that whatever injuries plaintiff sustained, were caused by his own negligence.

— Hon. S. M. Weaver, Judge. The defendants were jointly indicted, tried and convicted of the crime of maintaining a liquor nuisance, and, to reverse the judgment of the court below, they appeal.

— Hon. D. R. Hindman, Judge. This is an action in equity, brought by certain inmates of the Iowa Soldiers’ Home, for the purpose of setting aside certain rules adopted by the board of commissioners of said home, and to enjoin the enforcement of said rules. A temporary writ of injunction issued pending the hearing of the cause, restraining the defendants from appropriating any of the pension money belonging to any inmate of the home.

<p>2 Replevin: defenses. In replevin against an officer who lias levied on the property in question under an execution against a third person, defendant may set up as a defense that since the commencement of the action, a landlord’s lien has been established against it, and the property taken from him to satisfy such lien; and this, though plaintiff was not a party to the landlord’s attachment.</p> <p>1 Landlord’s Lien. The lien of a landlord o'n the property of the tenant in the leased building, given by Code, section 2017, is not affected by the tenant’s sale of the property, after rent is due and unpaid</p> <p>Conversion: measure of damages. In an action against an officer to recover personal property levied on under execution against a third person, the damages for taking the property should be estimated as of the time of the taking, with interest to the time of the trial.</p>

— Hon. James D. Smythe, Judge. Action at law to recover a balance alleged to be. due for goods and merchandise sold by the. plaintiffs to the defendants. The defendants answered the petition, and by way of counter-claim demanded judgment against the plaintiffs for failure to perform a contract previously made for the sale of certain laces. There was a trial by jury, and a verdict and judgment for the defendants. Plaintiffs appeal.

— Hon. J. M. Casey, Judge. This is an action for slander. It is charged that the defendant, about May 1, 1892, spoke the following words concerning the plaintiff: “Moellers stole my turkey.” The defendant pleads that whatever he did speak concerning the plaintiff, was spoken in the year 1891, not in the year 1892, and that the action is barred.

— Hon. L. E. Fellows, Judge. At the October, 1895, term of the Winneshiek county district court, the grand jury returned two indictments against the defendants, — one for larceny, and the other for breaking and entering. They were tried on the first indictment, and acquitted. Thereafter they were called to answer to the second, and to this they pleaded a former acquittal by the verdict of the jury in the larceny case.

— Hon. L. E. Fellows, Judge. Action at law to recover one hundred and ten dollars, with interest, alleged to have been fraudulently obtained by the defendant from the plaintiff. The issues and facts appear in the opinion. The case was tried to the court, a finding of law and of facts made, and a judgment entered thereon for the plaintiff. Defendant appeals.

— Hon. James D. Smythe, Judge. This was a proceeding instituted before the city council of the city of Burlington, acting as a board of equalization, for the correction of an assessment. The board of equalization refused the relief asked, and the plaintiff appealed to the district court.

— Hon. George H. Carr, Judge. Action for the recovery of specific personal property. Judgment for the defendant, and the plaintiff appealed.

— Hon. John J. Net, Judge. The defendant was president of the First National Bank of Cedar Falls, in this state, and was indicted for receiving a deposit of money in said bank, when he knew it was insolvent. There was a demurrer to the indictment, which was sustained, and the state appeals.