horses to a person who had no actual knowledge of the lease, or where the horses were kept, and then absconded with all his property leaving the rent unpaid. Held:

1. That the horses were subject to the landlord's lien for rent.

2. That the sale to a party who had no knowledge thereof, did not defeat the lien, or release the property therefrom. Richardson Bros. v. Petersen et al., 724.

LEASE.

The cove

1. COVENANTS: CONSTRUCTION OF: IMPROVEMENTS: WAIVER. nants of a certain lease in relation to the termination of the lease upon a sale of the premises, the right to the improvements, and the right of the lessee to purchase, construed: Held, that the parties contemplated a perfected sale by deed, such as would terminate the right of both to the possession of the property, and that under the evidence the lessee had waived his right to purchase the premises. Stewart v. Pier, 15.

2. CHANGE OF BY PAROL: CONSIDERATION. It was competent for the plaintiff to waive a condition of the written lease without any consideration, and the failure of the court to instruct the jury, that the verbal agreement changing the terms of the lease would not be valid unless some consideration therefor was shown, was not error. Stevens v. Taylor, 664.

3.

- EVIDENCE TO SUSTAIN THE VERDICT. Held, that the jury might fairly have found from the evidence, that the parties had entered into a verbal agreement changing the terms of the written lease, and that the verdict was sustained by the evidence. Id.

See LANDLORD'S LIEN, 1.
PERPETUITIES, 1.

MALICIOUS PROSECUTION.

1. PROBABLE CAUSE: PLEADING. In an action for malicious prosecution, where the petition alleges that the defendant, maliciously and without probable cause, procured the indictment to be found, it is sufficient; and attaching a copy of the indictment as a part of the petition can have no greater effect than introducing it in evidence, and the plaintiff would not thereby be estopped from proving that there was no probable cause. Hampton v. Jones et al., 317.

2. SPECIAL DAMAGES: TOO REMOTE. A claim for special damages, on the ground that, because of the finding of the indictment, the wife of plaintiff became sick and utterly helpless, is too remote. Id.

3. No CRIME CHARGED: LIABILITY OF COMPLAINANT. Where the complaint did not charge the commission of any specific offense, and the facts stated did not impute any crime, but the justice of the peace, by mistake of judgment and thinking a crime was charged, caused the arrest of the party, the law will not hold the person who made the complaint responsible, in an action for malicious prosecution, for the consequences of such error. Newman v. Davis, 447.

4. RESISTING OFFICER: EVIDENCE: NOT ADMISSIBLE. In an action for malicious prosecution by a person who was arrested on election day, charged with resisting an officer, evidence relating solely to the fact that plaintiff was a candidate for an office to be voted for on the day of the arrest, but having no connection whatever with the matters which led to the arrest, was not admissible. Montgomery v. Sutton, 697.

See EVIDENCE, 24, 25.

MANDAMUS.

1. WHEN IT LIES: SCHOOL DISTRICTS: CHANGE OF BOUNDARY. Where the board of directors of an independent school district omitted to act upon a petition to restore a portion of the territory included in such district when formed, to the district township to which it originally belonged, and neglected to make any record whatever in respect thereto, mandamus will lie to compel action. Albin et al. v. The Board of Directors of the Independent District of West Branch, 77.

MARRIED WOMEN.

1. DAMAGES: LOSS OF TIME: SEPARATE BUSINESS. In an action for personal injuries, a married woman cannot recover damages for loss of time in her own name, unless she was prosecuting a business in her own right, separate from her husband. Thomas v. The Town of Brooklyn, 438.

2. ESTATES OF: ELEMENTS OF DAMAGE: INSTRUCTIONS. In an action by an administrator to recover damages for wrongfully causing the death of the intestate, a married woman, it was error to instruct the jury that the damages should be ascertained and assessed, as though the deceased had been an unmarried woman. The elements of damage are not the same in both cases, and the damage accruing to the estate of a married woman, by reason of a wrongful act causing her death, should not be assessed as though she were unmarried. Stulmuller, Adm'r, v. Cloughly, 738.

See HUSBAND AND WIFE, 1, 2.

MECHANIC'S LIEN.

1. WILL ATTACH UPON EQUITABLE TITLE. A mechanic's lien will attach upon an equitable title, and will follow the title into the hands of purchasers and assignees. Clark & Co. v. Parker et al., 509.

2.

: UPON LAND ALONE. The principal object of the law is to provide security for those doing work or furnishing materials from day to day, and the lien will exist upon the land alone, after the improvements have been destroyed or removed. Id.

See VENUE, 2.

MILL-DAM.

1. ABATEMENT OF: ENJOYMENT OF WATER-power: DECREE. Held, that the decree entered in the court below, after the case was brought back upon procedendo from this court, and fully set out in the opinion, was correct, and the motion made by the defendants to change it was properly overruled. The Decorah Woolen Mill Co. v. Greer et al., §6.*

2.

3.

:

:

Under a : PROPER HEIGHT: HOW DETERMINED. decree for the abatement of a mill-dam to such an extent that it will not interfere with the plaintiff's prior enjoyment of the water-power, the true height at which defendants' dam ought to be allowed to stand should be determined rather by experiments than upon theoretical conclusions drawn from surveys. Id.

:

: ORDINARY STAGE OF WATER. Where such abatement is to be made with reference to the ordinary stage of water, it means the ordinary stage of water in the spring or other season when the stream stands at high water mark. Id.

MORTGAGE.

1. OF CHATTELS: ASSIGNMENT: EQUITY OF REDEMPTION. A grantor in a chattel mortgage has an equity of redemption in the property, after conditions broken, which will pass to an assignee under a general assignment for the benefit of creditors; and parties attaching the property after the assignment acquire no equitable or legal right thereto, aз against the assignee. Gimble, Florshime & Co. v. Ferguson, 414. 2. OF STOCK OF GOODS: ACQUISITIONS TO. A chattel mortgage, which refers to a stock of goods, but also schedules and describes the mortgaged property, and which contains no express provision that future acquisitions to the stock shall be included in the mortgage, will not cover goods afterwards purchased and added to the stock on hand at the date of the mortgage. Phillips & Son v. Both et al., 499.

3. LIEN INVALID: ATTACHMENT: PRACTICE. Where it is found that a mortgagee has no valid lien upon the mortgaged property, he cannot contest the attachment, or be heard to object that the mortgagor had no such interest in the property as could be levied upon by attachment. Id.

4. BADGES OF FRAUD: JUDGMENT CREDITOR. In a contest between a creditor and the mortgagee of a party, where it is shown that the mortgagor was indebted to the mortgagee in a considerable amount at the time the mortgage was executed, the fact that the true consideration was not expressed in the mortgage would be, at the most, but a badge of fraud and not conclusive; and the fact that the mortgagor delivered the mortgage for record, if done in good faith, ought not to prejudice the rights of the mortgagee. Mason v. Franklin et al., 506.

5. FORECLOSURE OF: ACTION TO CORRECT. A mortgage was foreclosed in the name of the mortgagee, who was dead at the time, by the direction of a party who claimed to be the owner of the note and mortgage as devisee, and who afterwards brought this action to correct the decree and the sheriff's deed by the substitution of his own name. Held: 1. That he was not entitled to such relief.

2. That, having possession and being prima facie the owner of the note and mortgage as devisee, he was entitled to a re-foreclosure of the mortgage in his own name. White v. Secor et al., 533.

6. TO DELAY CREDITORS: WHen not frauduLENT. Where an insolvent debtor executes a mortgage to bona fide creditors, with the design of hindering and delaying other creditors in the enforcement of their claims, and the evidence does not show that the mortgagees had any intention or purpose of aiding in the fraudulent plans of the mortgagor for hindering and delaying other creditors, except so far as was necessary to secure their own protection, it is a case of a race between creditors, and such mortgage will not be fraudulent and void. Kohn Bros. et al. v. Clement, Morton & Co. et al., 589.

7. OF REAL ESTATE: LIFE ESTATE: REMAINDER OVER. A mortgage upon real property, executed by a person who subsequently became entitled to an estate in remainder therein, and containing the usual covenants of warranty, will attach to and may be enforced against such after acquired estate; but it cannot affect the equities of a party holding an estate for life in the property, and who was in the actual possession thereof when the mortgage was executed. The Iowa Loan and Trust Co. v. King et al., 598.

8. FORECLOSURE FOR ONE INSTALLMENT: REDEMPTION. Where a mortgage securing two notes was foreclosed for the one first due, and the entire premises were sold under a special execution, and subsequently the mortgagor sold the mortgaged property and duly redeemed the same

from the execution sale, such purchaser from the mortgagor takes the property discharged from the lien of the mortgage for the note due. Following Escher v. Simmons, 54 Iowa, 269. Micklewait et al. v. Raines et al., 605.

See ASSIGNMENT, 3.

ATTACHMENT, 3.

CONVEYANCE, 3.

MUNICIPAL CORPORATIONS.

1. CITY ORDINANCE: LICENSE TO PEDDLERS: WHEN VOID. Under a city ordinance which provides that certain dealers, or peddlers, who do not reside in, or sell goods manufactured in the county in which the city is situated, shall pay a license, the money exacted therefor is to be regarded as a tax upon the goods they sell, and the discrimination against persons not resident of the county, and against goods not manufactured in the county, is a regulation of commerce not within the power of the States to enforce. The City of Marshalltown v. Blum, 184.

2. SIDEWALKS: DUTY TO MAINTAIN: INCORPORATED TOWNS. An incorporated town, the same as a city, is bound to exercise ordinary care and diligence in constructing and maintaining the sidewalks over which it has assumed control in a reasonably safe condition. Beazan v. The Incorporated Town of Mason City, 233.

3. DEFECTIVE SIDEWALKS: PLEADING: PRACTICE. An amendment to the petition, conforming the allegations thereof to the proofs in the case and made after all the evidence was introduced at the trial, was properly allowed. Thomas v. The Town of Brooklyn, 438.

4.

: LIABILITY FOR INJURY. A city or town is bound to maintain the sidewalks in a reasonably safe condition, and cannot escape liability for an injury caused by a defective sidewalk, upon the probability or expectation that no one acquainted with the defects would pass over it. Id.

5. POWER TO CONTRACT: RIGHT OF WAY. A municipal corporation has the authority to employ a third person, not an officer or regularly constituted agent, to negotiate for it in procuring a right of way for a ditch, and to agree to pay him a specified amount for such service; and if the person so employed procured a deed for the right of way and tendered it to the city before being notified of the abandonment of the improvement by the city, he would be entitled to recover the amount so agreed upon. Stewart v. The City of Council Bluffs, 642.

NEGLIGENCE.

1. WHAT CONSTITUTES: FACTS INSUFFICIENT: QUESTION OF LAW. Where there is any evidence tending to show negligence, the question of negligence is one of fact for the jury; but where it is insisted that there is no evidence in the case having such a tendency, the question presented is one of law. The facts in this case considered and held insufficient in law to constitute negligence. Sikes v. Sheldon, 744.

See RAILROADS, 3, 4, 8, 9, 11, 16, 24.

SCHOOL DISTRICTS, 3.

NEW TRIAL.

1. DUE DILIGENCE: WHAT CONSTITUTES: AFFIDAVIT OF. In an application for a new trial upon the ground of newly discovered evidence, the affidavit of plaintiff, alleging that he had made every effort to find out certain facts before the trial, but not showing of whom he had made inquiry, was not sufficient to establish the exercise of due diligence. Smith v. Wagaman, 11.

2. POWER OF COURT TO GRANT. Courts ought to grant new trials, whenever their superior and more comprehensive judgment teaches them, that the verdict of the jury fails to administer substantial justice to the parties in the case. Johnson v. The C., R. I. & P. R. Co., 348.

3. JURISDICTION OF COURT: APPEAL. The right to apply for a new trial under the provisions of section 3155, Code, and the power of the court to entertain jurisdiction of the application, during the time limited in the statute, are absolute and unconditional; and a subsequent appeal from the judgment on the first trial will not oust the court of such jurisdiction. Cook v. Smith et al,607.

OFFICER.

1. DE FACTO: COMPENSATION. Where a party was employed by private persons to render service in the capacity of deputy collector and treasurer, and was permitted to render the services in that capacity, he can only recover therefor the compensation allowed by law; and an agreement by such persons, to pay him a greater compensation for such services than that fixed by statute, was absolutely void. Fawcett v. Eberly et al., 544.

See PUBLIC OFFICER, 1.

PARTNERSHIP.

1. FRAUDULENT NOTE: BONA FIDE PURCHASER.

Where the transferee of a fraudulent note seeks to recover thereon, he has the burden of showing that he purchased in good faith; and where a partnership seeks to recover as a bona fide purchaser of a promissory note, fraudulently procured, the burden is upon it to show that all the members of the partnership were ignorant of the fraud at the time of the purchase. Frank & Darrow v. Blake, 750.

See ASSIGNMENt, 1, 2.

PAUPER.

1. LEGAL SETTLEMENT: FACTS ESTABLISHING: COUNTY. Where one H., a foreigner, without parents or home, kept her trunk and clothes at the house of her brother in a certain county, and seemed to regard it as a home, going out at various times to work in another county, but when sick or out of employment returning to her brother's house, it was held that such county was the county of her residence. The County of Cerro Gordo v. The County of Hancock, 114.

PENSION.

1. WHEN SUBJECT TO JUDGMENTS: EXEMPTION. The exemption under section 4747, Revised Statutes of the United States, applies only while the pension-money is in course of transmission to the pensioner; and after it has come into his possession his creditors may subject it, or the property purchased with it, to the payment of their judgments. Triplett v. Graham et al., 135.