1. Fee of Guardian Ad Litem-Where the defense to a bill should
be made through a guardian ad litem, plaintiff, on failing to
establish his cause of action, was properly taxed with an allow-
ance for the guardian's services.-Burkhardt v. Burkhardt, 369.
2. Prosecutor-A private prosecutor who instituted the prosecut-
ion maliciously, and without .probable cause, cannot, on the
failure thereof be taxed with the costs, unless the indictment
is indorsed that it was found at his instance, as required by
Code 1873, section 4292 (Code 5275) which authorizes the court,
on the failure of the prosecution if, in its opinion it was malic-
ious and without probable cause, to tax the costs thereof
against him.-State of Iowa v. McAllister, 641.
1. Adverse Possession-One co-tenant moved but remained in
the neighborhood for thirty years without claiming land,
knowing the other was paying taxes, making improvements
and collecting rents. Two years after the removal both ten-
ants mortgaged the land, and he in possession often claimed
sole ownership, and once leased it to the son of the other with
his assent. Held, the one in possession has title by adverse
possession. Casey v. Casey, 192.
2. Evidence of Intent-Declarations of sole ownership by a tenant
in common in possession are admissible to show his intent to
hold adversely to those not in possession, though not made in
their presence.-Idem.
3. Contribution-While one cotenant, who, at the request of the
other, and to prevent foreclosure, pays the mortgage debt, is
not entitled to subrogation and foreclosure of the mortgage,
he is entitled to contribution, and to a lien on the other's
interest in the land, for his share of the mortgage so paid.—
Koboliska v. Swehla, 124.
COUNTERMAND-See SALES, 5, 6.
COUNTIES-Se COUNTY ATTORNEY,
COUNTY ATTORNEY.
1 2, 3, 4; FEES, 3, 4; TAX, 1,
1. Where the board has power to hire any attorney it may employ
the county attorney to attend to the prosecution of a criminal
case taken to another county by change of venue, and the
board has power to employ assistance to the prosecution and
is "interested" in such proceeding within the meaning of the
statute authorizing assistance where the county is interested.
Such assistance may be employed without application on the
part of the county attorney.-Bevington v. Woodbury County,
424.
Small figures refer to subdivisions of Index. The others to page of report.
COUNTY ATTORNEY Continued
CRIM. LAW
2. SAME-The county from which a change of venue is had in a
criminal case and which employs an attorney to assist the
attorney of the county to which the venue is changed, is the
proper defendant in an action by the appointee to recover for
his services.-Idem.
3. SAME-The duty of the county attorney with relation to criminal
cases brought in his county, on the removal thereof by change
of venue, passes to the county attorney of the county to which
they are taken.-Idem.
4. SAME-The county attorney cannot be required to perform any
duties in his official capacity not enjoined on him by law. -
Idem.
COURT AND JUDGE-See CRIM. LAW, 15.
COURT AND JURY-See CRIM. LAW, 12.
COURTS-See OFFICE, ; PLEA AND PROOF, 1; REFEREES; Tax, 1o.
A judge is not required to indorse or follow the rulings of another
judge under whom prior proceedings in the same action have
been had. Seery v. Murray, 384.
CREDITORS-Seе CORPOR., ; GEN. ASSIGN., 2,5.
CREDITOR'S BILL.-See FRAUD. CONV., 2; JUDGMENTS,, ;
LIM. OF ACT, 2; PLEA AND PROOF, 1.
A creditor's bill cannot be maintained in the district court on a
judgment rendered by a superior court, which has not become
a lien on real estate by filing the same in the district court.—
Peterson v. Gittings, 306.
2. Same-The equitable proceedings under Code 1873, sections
3154-3159, for subjecting land to the payment of a judgment
will not lie until the remedy at law has been exhausted, and
have no application to superior court judgments.-Idem.
3. Priority of Creditors-A judgment creditor of a fraudulent
grantee who was as well fraudulent grantor, which extended
credit to the latter upon the strength of his ownership of the
property, with no knowledge that anyone claimed a convey-
ance to him was in fraud of creditors, and which subjected the
land to the payment of its claims before any steps were taken
by the creditors of the fraudulent grantor, is entitled to prior-
ity over the latter.-Applegate v. Applegate, 312.
CRIMINAL LAW-See ATT'Y. FEES; COSTS, 2.
1. Appeal-An objection that defendant was required to plead and
go to trial on the day his demurrer was overruled and that he
was not allowed the time given by law in which to plead and
Small figures refer to subdivisions of Index. The others to page of report.
prepare for the trial, will not be reviewed where the record fails
to show any objection below.-State v. Lightfoot, 314.
Bribery-See ",", ", post.
Evidence-See 1, post.
2. ADULTERY-Where a letter written by a married woman to her
alleged paramour, which contained terms of endearment, was
read by him and the evidence tends to show that he recipro-
cated her affection, the letter is properly admitted in evidence
to show the disposition of the parties.-State of Iowa v. Butts,
653.
3. POISONING HORSES-Testimony that defendant charged with the
crime of exposing a poisonous substance, with the intent that
it should be taken by a horse, stated in a second conversation
with a witness, in regard to his leaving the state, that he was
not ready to go until he got through dealing with certain per-
sons, will not be stricken out where, in the first talk, which
occurred before the crime was committed, defendant stated
that he had a little deal to make with the owner of the horse,
and when he did it it would be a damn sore deal with him,"
although witness did not remember that the owner's name was
mentioned in the second conversation.-State v. Lightfoot, 344.
4. Same-In a trial for the crime of exposing a poisonous substance
with intent that it should be taken by a horse, evidence is
admissible of the number of horses the owner had in different
barns on the night of poisoning, the condition they were in at
the time, the number of horses and kind and arrangement of
stalls in the barn in which the poisoned horse was kept, the
number of feed boxes in the barn in which the poison was
found, the number of separate barns in which horses were
poisoned and the number of boxes shown to a druggist for
examination, as tending to explain and show the premeditated
and malicious character of the act causing the death of the
horse specified, although no poison was taken from the latter's
feel box, but where it contained some of the preparation in
which poison was fonnd in other boxes.-Idem.
5. Indictment-BRIBERY-An indictment charging the defendant
with unlawfully and feloniously attempting to improperly
influence a juror by requesting him to see that the right was
done, that it would not be to his loss, and by the use of similar
language, is not insufficient on the ground that the words are
in themselves innocent and proper and are not shown to have
been used in an improper sense.-State of Iowa v. Dankwardt,
704.
Small figures refer to subdivisions of Index. The others to page of report.
6. SAME -An indictment for attempting to improperly influence a
juror charged that accused "did unlawfully attempt to influ-
ence another as a juror * * * with intent to improperly
influence his actions and findings as a juror in said cause."
Held, to sufficiently charge that accused knew such person was
a juror.-Idem.
7. The omission in an indictment for an attempt to corrupt a juror
of the abbreviation "Jr." to the name of a party to the suit in
which the crime is alleged to have been committed is not a ma-
terial variance. The term "junior" is not a part of a name.—
Idem.
8. VARIANCE-An indictment charged accused with attempting to
improperly influence a juror by requesting him to "see that
right was done that it would not be to his loss," and by the use
of language of like import. The evidence showed that accused
said to the juror: "You are the only friend I have on the jury
and I want you to look after my rights. How will it go? I
will make it all right. It will not be to your loss when we
meet again.” Held, to be not a material variance.—Idem.
9. POISONING-An indictment charging defendant with wilfully and
unlawfully exposing a poisonous substance, with the intent
that it should be taken by a horse of another is insufficient to
charge the offense defined in Code 1873, section 3977, as the
malicious administering of poison to a horse, etc.-State v.
Lightfoot, 344.
10. SETTING ASIDE-An indictment will not be set aside because
the foreman of the grand jury, who was the magistrate before
whom the preliminary hearing was had, and who was directed
not to take any part in the proceedings when the charge
against the defendant was being investigated, s gned the indict-
ment "a true bill."-Idem.
11. Instructions -An instruction, after stating the different ele-
ments of the crime, and charzing that, if the jury find them to
have been established, they should find defendant guilty, and.
if they should fail to so find as to each of such matters, they
should acquit, is not erroneous as charging that defendant
could not be acquitted unless the jury failed to find that every
element was proven.-State of Iowa v. Butts, 654.
12. COURT AND JURY. Constitutional Law. The court in a crimi-
nal case cannot instruct the jury that any essential fact is
established.-State v. Lightfoot, 344.
13. REQUESTING INSTRUCTIONS. Alibi. The failure of a court, in
giving its charge, to refer to an alleged alibi is not error,
where no request therefor was made.-Idem.
Small figures refer to subdivision of Index. The others to page of report.
CRIM. LAW Continued
Jury-See 12 ante; 15 post.
14. Larceny-POSSESSION OF STOLEN GOODS-Presumptions and
Burden of Proof-A charge that after the state has shown
beyond all reasonable doubt that defendant had the possession
of recently stolen property, defendant could overcome the pre-
sumption of guilt thus raised by showing to the satisfaction of
the jury that he came by it honestly, is error for the reason
that such presumption is rebutted if the explanation of the
possession raises a reasonable doubt as to whether it was hon-
estly acquired.-State of Iowa v. Miner, 656.
Objections-See ante 1.
Poisoning-See 3, ‘,
4° ante.
15. Separation of Jury-A request in a felony case that the jury
shall be kept together during the trial should be made to the
court and not to the judge, but if originally made to the judge
and afterward ruled upon by him in court as if made in court
it will be deemed to have been made in court, and its re-
fusal is error, and such request may be made in the absence
of the jury and the county attorney. State of Iowa v. Smith,
480.
DAMAGES-See CONTRACTS, ; EVID., ; LAND. AND TEN., 1; IN-
STR., ; INSUR., 13; TELEG. CO., 2,3,4.
1. Concurring Negligence-The failure of an injured person to
comply with the directions of his physician does not necessarily
preclude the recovery of damages accruing after such failure,
but he cannot recover for such of the subsequent damages as
were occasioned by his failure in that respect.-Keyes v. City,
2. Executory Contracts-In an action on an executory contract
for the purchase of a manufactured chattel, the seller was
entitled to recover the contract price with interest where it
had offered to deliver such property within the specified time,
and the purchaser had refused to receive it.-McCormick v.
Markert, 340.
3. False Representation-The measure of damages for false
representation that mortgaged property sold was free from
incumbrance, is the value of the property which was not
delivered or which was taken from the purchaser and lost to
him because of the mortgage.-Brennecke v. Heald, 376.
4. Fences-Proof that plaintiff's horses were injured by a barbed
wire fence while they were in a pasture, and that an adjoining
owner put up a part only of the barbed wire inclosing the pas-
ture, is insufficient to sustain a recovery against such owner.-
Godden v. Coonan, 209.
Small figures refer to subdivisions of Index. The others to page of report
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