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A DIGEST OF THE DECISIONS 
 
 OF THE 
 
 SUPREME COURT OF IOWA 
 
 FROM ITS 
 
 ORGANIZATION UNTIL THE END OF THE JANUARY TERM, 1887, INCLUD- 
 ING MORRIS' AND GREENE'S REPORTS, AND THE SERIES OF IOWA 
 REPORTS UP TO AND INCLUDING VOLUME LXX, EXCEPT 
 CASES THEREIN FIRST DECIDED AT THE MARCH TERM; 
 
 AL60 
 
 OF THE FEDERAL COURTS IN IOWA AND OF THE SUPREME COURT OF THE 
 
 UNITED STATES SO PAR AS THEY RELATE TO IOWA LAW 
 
 OR SUBJECT-MATTER PECULIAR TO IOWA. 
 
 EMLIN McCLAIN, A.M., LL.B., 
 
 Resident Professor of Law at the State University of Iowa and 
 
 COUPILER OF McCLAIN'S ANNOTATED STATUTES OF lOWA. 
 
 VOL. I. 
 
 CHICAGO: 
 CALLAGHAN AND COMPANY. 
 
 1887. 
 
ng to Act of Congress inihe year eii 
 
 Entered according to AcfrofCongress in The year eighteen hundred and eighty -seven, 
 
 By EMLIN McCLAIN, 
 
 in the office of the Librarian of Congress, at Washington, D. C. 
 
 DAVID ATWOOD, 
 
 PRIXTER AND STEKEOTYPSa, 
 UADISON, WIS. 
 
PREFACE. 
 
 The aim of this work is to present a complete digest, under one arrangement, of the 
 decisions of the Supreme Court of the territory and state of Iowa from, its organization 
 in 1838 (the first case reported being decided, however, in 1839) until its March term, 1887. 
 Cases finally decided at that term on rehearing are also given, so far as they are to appear 
 in Volume LXX of Iowa Reports. All the oases in that volume are included except a few 
 which were first announced at the March term. 
 
 In view of the fact that the federal courts in Iowa follow and administer the Iowa law 
 so far as the determination of cases before them depends upon the construction or applica- 
 tion of the state constitution or statutes, or upon state decisions which have become a 
 settled rule of property, and that in certain classes of oases the decisions of the state Su- 
 preme Court are subject to review by the Supreme Court of the United States, it has been 
 thought advisable to incorporate notes of all published opinions of such courts in cases tried 
 in, or appealed from, Iowa, so far as they relate to Iowa law or to subjects peculiar to this 
 state. Such cases will, it is believed, be found especially interesting and valuable in rela- 
 tion to assignments for the benefit of creditors, chattel mortgages, municipal bonds, and 
 public land grants in Iowa. 
 
 The work is founded upon a thorough, fexaminaition, one iby one, of all the cases within 
 the scope thus suggested. During this examination full and separate notes were made of 
 every point in each case, and in the form in which it was thought the case ought to be 
 stated under the title or subdivision to which the point related. When all the cases had 
 been thus examined, and the notes written out, all the notes relating to each title were 
 brought together, classified under convenient sub-headings and arranged in systematic 
 order, and then entirely re-written with reference to each other, so as to form, as far as pos- 
 sible, a connected, consistent statement, in successive paragraphs, of the law as announced 
 by the courts. The whole matter of the book has, therefore, been twice written, and has 
 then been revised, before putting it in type, after which the proof was carefully read and 
 the references were verified so that they might be made entirely accurate. 
 
 In choosing main titles under which to arrange the matter the author has not followed 
 any theoretical notions of his own, but has yielded to general usage, so far as that is well 
 established. Beyond this, the grouping of subjects in the Code has been given some weight, 
 such arrangement having been in use, practically unchanged, since the adoption of the 
 Code of 1851, and being, therefore, presumably well known to the profession. Thus, under 
 Estates op Decedents are collected, in appropriate subdivisions, the cases relating to 
 executors and administrators, distribution, descent and dower. Under the head of Criminal 
 Law have been gathered the cases relating to the whole topic, including the general doc- 
 trines of criminal responsibility, the definitions of particular crimes with the rules as to al- 
 legation and proof peculiar to each, and the cases as to criminal procedure in the district 
 court, and also in inferior courts. Under Justice of the Peace will be found the whole body 
 of decisions relating to the jurisdiction and procedure of justices in civU oases, including 
 proceedings on appeal from, or writ of error to, their courts. Under COUETS the organization 
 and jurisdiction of particular courts of record are considered, as also their terms, records, 
 rules, etc. 
 
 The body of the decisions relating to proceedings in courts of record in this state in civil 
 cases is arranged under the following main heads, found in their proper alphabetical order, 
 with other main headings, to wit : Actions, relating to the form of action, survival, etc. ; 
 Venue, or the place of bringing action, including change of venue; Limitation op Ac- 
 
\V PREFACE. 
 
 TiONS, or the time within which action must be broijght; Continuance; Parties; Original 
 Notice, or the commenpement of action; Appearance; Pleadings; Procedure, or the 
 form, and method of trial and the return of general and special verdicts in courts of orig- 
 inal jurisdiction; INSTRUCTIONS; Judgments; Defaults; Executions, including levy, ex- 
 emptions, sales, redemption and sheriff's deed ; Costs; Exceptions; New Trials; Appeals, 
 covering the entire subject of appeal to the supremo court in civil cases, and the procedure 
 and practice on such appeal. 
 
 It has been thought best to arrange matter systematically, under well-known general 
 heads, rather than divide it up under a number of smaller main titles not so likely to suggest 
 themselves to all as proper heads under which to look for the subject-matter. Thus under 
 Municipal Corporations are given the cases relating to public and quasi corporations, in 
 general, and also, under pi-oper sub-heads, those relating particularly to cities and towns, 
 counties and townships, their organization and government, powers and liabilities. School 
 districts are placed, however, with the rest of the school system, under Schools. Under 
 Negligence, the cases stating the general doctrines of that subject, including contributory 
 negligence and negligence of fellow-servant, are placed, whilst under Railroads are col- 
 lected the numerous cases relating to the liability of those corporations for negligence of 
 their officers, agents and employees, as well as those relating to their organization, right of 
 way, construction, operation, etc. The cases as to the peculiar rules determining the 
 liability of carriers of goods and passengers, applicable to railroads in common with other 
 corpoi-ations or persons engaged in the business of transportation, are all placed under the 
 general head of Carriers. 
 
 The subject-matter embraced in each title is, where it is extensive enough to make sub- 
 division desirable, classified under sub-headings and smaller divisions, all printed in analyt- 
 ical form under the main heading, and carried through at the top of the page by 
 corresponding numbers and letters, so that any part of the subject may be readily found ; 
 and the matter is further subdivided and rendered accessible by catchwords, in bold-faced 
 type, at the beginnings of paragraphs. These catch- words are applicable to succeeding 
 paragraphs until other such words intervene. 
 
 In the endeavor to refer to each case on every point on which a lawyer might desire to see 
 that opinion, it often happens that a case is cited to a proposition not to be found in the 
 head-note. It also frequently happens that propositions are given from opinions where they 
 are stated merely as dicta, or by way of argument. It has not seemed advisable to attempt 
 to discriminate between cases as to their respective authority, and where they are incon- 
 sistent, that fact is made apparent, but the cases are allowed to speak, each for itself, unless 
 one has formally overruled another, when that fact is stated. Sometimes' a point discussed 
 in a dissenting opinion, but not in the principal opinion in the case, is digested, but the fact 
 that it is found in a dissenting opinion is always stated. Beyond this, no notice is taken of 
 dissenting opinions, nor of the fact of dissent, that not being a matter of any importance in 
 determining what cases it wiU be desirable to consult on any particular point. In short, 
 this work is intended as a guide to the reported cases. 
 
 "Where decisions are based upon statutory provisions, such provisions are either set out in 
 foot-notes, or briefly referred to in the statement of the decision. If made under statutes 
 different from those now in existence, that fact is stated. A fe(v cases are upon statutory 
 provisions so entirely obsolete that no statement thereof is made, and these and a few other 
 cases in which, for peculiar reasons, no principle is discussed or decided, are not digested, 
 although they are preserved in the table of cases. 
 
 In stating the cases the aim has been to give not merely the abstract legal proposition 
 decided or referred to, but briefly the vital fact or facts to which such proposition is applied. 
 While avoiding the prolix and complicated statements of facts which are sometimes made, 
 tending to confuse rather than to enlighten, it has been sought to avoid also that bald 
 announcement of legal rules, many of them long since trite and axiomatic, which are of 
 but little assistance in guiding the lawyer to the cases really in point on the question under 
 investigation. The utility of modern case law lies largely in the application tof familiar 
 
PREFACE. 
 
 rules to peculiar states of facts rather than in the repetition of well established propositions ; 
 and while it has been the constant aim to secure the greatest practicable bi-evity, it has not 
 been thought wise to sacrifice clearness. 
 
 Where a case relates to different subjects it has been unhesitatingly put under each, un- 
 less it forms one of a group of cases, closely related ; in that event the aim has been to col- 
 lect all together in one place and by a cross-reference incorporate them into other titles to 
 which they may be pertinent, the object being not so much to economize space as to make 
 it possible to bring all the oases relating to the same particular matter into one statement, 
 and enable the person consulting the book to be sure, after following a limited and definite 
 line of search, that he has found all the cases relating to the point in hand. General cross- 
 references suggesting an indefinite and unlimited search, which will often prove fruitless, 
 have been entirely discarded, except where the whole of the matter under another title is to 
 be indicated, and cross-references are to definite sections or subdivisions where the very 
 matter referred to is to be found. 
 
 It is sometimes thought that the alphabetical arrangement of the contents of a digest ren- 
 ders an index unnecessary ; but it is evident that there are many subjects to which some 
 reference is found under different titles, which cannot properly be made distinct titles in 
 themselves, and yet to which it is important to be able to turn at once. For instance, there 
 may be cases referring to crops under various titles, such as real property, executions, 
 conveyances, mortgages, landlord and tenant, etc., but it would not be practicable to have 
 that as a distinct title, bringing under it a heterogeneous collection of cases without any 
 unity of principle. The references in the index under that word will show what sections of 
 each subject relate to crops. 
 
 Cases are referred to by names of parties and volume and page of the report where the 
 case commences. References to volume LXX of Iowa Reports are necessarily left blank in 
 the first volume, which goes to press before that volume of reports is in type, but in the 
 second volume many, if not all, of such references can be by pages, ;and probably the 
 pages of all such cases can be inserted in the table of cases before it finally goes to press. 
 In any event cases from that volume can readily be found by reference to the table of cases 
 in the volume itself, when issued. 
 
 In view of a lack of uniformity in the reports as to the method of giving names of cases, 
 some general rules have been adopted. In case of partnership names, or names of coparties, 
 the first only is used. In case of corporate names the first significant word is given in full 
 while others are abbreviated where practicable, enough being retained, if possible, to pre- 
 serve the individuality of the name, but the name of the place is omitted where it is not 
 the first word. Where a firm or corporate name commences with the christian name 
 of an individual, that is discarded and the surname only is preserved. In giving names 
 of counties, the name comes first followed by "county." Cities and towns are desig- 
 nated by name without prefixing or adding "city of" or "town of." The names of 
 school districts being obscure, and seldom remembered, these corporations are designated as 
 "District T'p," or "Independent Dist.," those being the first words of the names authorized 
 by statute (Code, § 1716) for such corporations, a usual abbreviation being adopted for the 
 second. 
 
 A table of aU the cages in the Iowa Reports, and such cases decided by the federal courts 
 as are included in this work, is added, the cases being arranged alphabetically, as to defend- 
 ants' as well as plaintiffs' names. The peculiar features of this table are that, in the first 
 place, it shows, by title and section, where each case is referred to in the digest, so that it is 
 not necessary to look up each reference to find under what subject the case is stated ; in the 
 second place, it shows by volume and page each reference to that case on each particular 
 subject, in subsequent Iowa cases, and whether in the subsequent case it is followed, cited, 
 distinguished, questioned, or overruled. The subsequent history of the case, on the very 
 point referred to, is thus shown. For instance, the case of Sherman v. Western Stage Co., 
 34 Iowa, 515, has been cited a number of times with entire approval, as to points therein de- 
 cided with reference to damages and negligence, while it has been lately overruled on a 
 
vi PREFACE. 
 
 point relating to limitation of actions. The table of cases accordingly shows on what sub- 
 jects it has been cited and on what subject overruled. Much pains and great labor have 
 been bestowed upon this feature, and it is believed it will be found exhaustive and very 
 valuable. It combines under one alphabetical arrangement all the advantages of an ordi- 
 nary table of cases and a table of cases cited, overruled, etc., such as is sometimes separately 
 given. 
 
 This work was commenced by the author more than six years ago, and he has been con- 
 tinuously, though not exclusively, engaged upon it to the present time. He now offers it to 
 the profession, believing it to be as full, complete, accurate and concise as he is able to 
 make it. 
 
 In conclusion the author takes pleasure in acknowledging the kindness of Hon. E. C. 
 Ebersole, the present Reporter of the state Supreme Court, by whom he has been 
 favored with sheets of Volume LXIX of the state reports in advance of publication, and a 
 list of cases to appear in Vol. LXX, thus enabling him to insert in their proper places the 
 cases from those volumes. Promptness in the publication of the decisions has made it 
 possible to bring this digest down to a very recent date. 
 Iowa City, June, 1S87. 
 
ABBREVIATIONS. 
 
 Mor. — Morris' Report of cases in the Supreme Court of the territory of Iowa from 1839 to 
 1846: 
 
 G. Gr. — G. Greene's Reports, four volumes, of cases in the Supreme Court of the state of 
 Iowa, from 1847 to 1854. 
 
 - : Volumes of the series of Iowa Reports are referred to by giving the number of the vol- 
 ume and of the page separated by a dash. 
 
 R. S. — when used indicate Revised Statutes of the territory, of 1843. 
 
 Code of '51 — refers to the Code of Iowa of 1851. 
 
 Rev. — refers to the Revision of 1860. 
 
 Code — refers to the Code of 1873, being the one now in force, later compilations of statutes 
 being only a reprint of this Code with additions and modifications, the original section- 
 ing being retained. 
 
 G. A. — indicate an act of the General Assembly, the preceding number, being that of the 
 session, the following that of the chapter which the act forms in the published acts of 
 that session. 
 
 Abbreviations used in the Table of Cases and Index are explained preceding the Table in the 
 latter part of Volume II. 
 
DIGEST 
 
 DECISIONS OF THE SUPREME COURT OF IOWA, 
 
 ITS ORGANIZATION TO MARCH TERM, 1887 (MORRIS— LXX IOWA). 
 
 ABATEMENT. 
 
 As a defense, see Pleadings, V, a. 
 
 Pleas in abatement still allowed, see Ac- 
 tions, § 14. 
 
 Judgment on matter in abatement, see that 
 title, §g 20, 21. 
 
 Action not abated by death, see Actions, TV. 
 
 ABORTION. 
 
 1. Civil liability: Where a wife had left 
 her husband, being with child by him, and 
 aftei'ward a miscarriage was produced upon 
 her by defendant, held, that the father had 
 no civil right of action for the destruction of 
 his offspring, unless for loss of services, and 
 whether there would be any liability on that 
 ground, doubted : Kansz v. Ryan, 51-332. 
 
 As a crime, see Criminal Law, II, 7, f. 
 
 ACCOKD AND SATISFACTION. 
 
 See Payment and Discharge. 
 
 ACCOUNT. 
 
 Assignment of, see that title, §§ 24, 44-46. 
 
 Limitation of Actions on, see that title, 
 g§ 131-134. 
 
 Pleadings in case of, see that title, §§ 38- 
 40, 707-709. 
 
 Reference in matters of, see that title. 
 g2. 
 
 Equitable jurisdiction in case of, see 
 Equity, g§ 247-251. 
 
 Books of, as Evidence, see that title, g§ 303- 
 338. 
 
 Vol. I — 1 
 
 Statement of, for Mechanic's Lien, see 
 that title, gg 43-49. 
 Accounting, see that heading in Index. 
 
 1. Wliat constitutes: A charge for money 
 due on an executed contract may form one 
 of the items of a running account: Buford 
 V. Funk, 4G. Gr., 493. 
 
 2. Items may be properly included as a 
 part of a current account, although there ex- 
 ists between the parties a special contract as 
 to the rate of charge for such items : Mills v. 
 Davies, 43-91. 
 
 3. An objection that a finding in an action 
 upon an account is not on an issue submitted, 
 because it shows that several items were 
 furnished under a contract between the par- 
 ties, is not well founded, because a recovery 
 could be had upon the account, although the 
 items were furnished under a c6ntract : Hay- 
 wood V. Woods, 28-563. 
 
 4. The account in a particular case held to 
 be an open account : Wing v. Page, 63-87. 
 
 ACKNOWLEDGMENT. 
 
 I. Form and effect; who may take. 
 II. Who may make the acknowledgment. 
 
 III. Liability of officer. 
 
 IV. Acknowledgment of tax deeds. 
 
 As to the recording, see Recording Acts. 
 
 I. Form and effect; who hay take. 
 
 1. Not esseutial: While the acknowledg- 
 ment is necessary for the admission of tha 
 
ACKNOWLEDGMENT, I. 
 
 Form and eflfect. 
 
 instrument to record, it is not essential to its 
 validity as between the parties or as to per- 
 sons having notice in fact ; Gould v. Wood- 
 ward, 4 G. Gr., 82; Miller v. Chitteiiden, 3- 
 315, 360; Blainv. Stewart, 3-378; Dussaume 
 r. Burnett, 5-95, 104; Brinton i\ Seevers, 
 12-389; Haynes v. Seachrest, 13-455; Carle- 
 ton V. Byington, 18-483; Simms v. Hervey, 
 19-273, 287: Lake v. Or ay, 30-415; Morse v. 
 Beale, 68-463. 
 
 2. The want of acknowledgment cannot 
 be made a ground for objecting to tlie intro- 
 duction of an instrument in evidence: Jones 
 V. Berkshire, 15-248. 
 
 3. The instrument would be valid as be- 
 tween the parties, and also as to third par- 
 ties, provided notice could be brought home 
 to them : Ibid. 
 
 If not acknowledged, or the acknowledg- 
 ment is defective, the instrument cannot be 
 recorded ; or, if recorded, the record will not 
 impart constructive notice : See Recording 
 Acts, II. 
 
 4. Form of certificate : 1 What snflicleiit : 
 The exact language of the statute need not 
 be followed by the officer in his certificate, 
 but words of the same import are sufficient : 
 Wiekersham v. Reeves, 1-413; Tiffany v. 
 Olover, 3 G. Gr., 387; Cavender v. Smith's 
 Heirs, 5-157. 
 
 5. Therefore, held, that the words " well 
 known " were sufficient in place of " person- 
 ally known," and the words "the within 
 named," etc., sufficiently referred to the 
 parties as being " the identical persons whose 
 names are affixed," etc. . Bell v. Evans, 
 10-353. 
 
 6. A certificate which does not state that 
 the party acknowledging the instrument was 
 "personally knovsm"to the officer "to be 
 the identical person," etc., or use words of 
 similar import, is fatally defective : Reynolds 
 V. Kingsbury, 15-338; Brinton v. Seevers, 
 13-389. 
 
 7. The omission of the word "personally" 
 before "known" renders the certificate de- 
 fective : Gould V. Woodward, 4 G. Gr. , 82. 
 
 8. But such omission is not fatal when! 
 the other words used necessarily imply pei- 
 sonal knowledge in the official: Todd c. 
 Jones, 22-146; Rosenthal v. Griffin, 23-363. 
 
 i>. The word "voluntaiy" is of the es- 
 sence of the acknowledgment, and in the 
 absence of that or an equivalent word the 
 certificate will be invalid: Wiekersham v. 
 Reeves, 1-413 ; Newman v. Samuels, 17-528. 
 
 10. But the fact that the party acknowl- 
 edged the instrument to be his voluntary act 
 and deed may be shown by the tenor aiul 
 form of the certificate, as well as by the n.se 
 of the very words of the statute : Dickersoii 
 i\ Davis, 13-353. 
 
 11. The essentials of a certificate of ac- 
 knowledgment considered generally : Bell v. 
 Evans, 10-353. 
 
 13. The omission of even an essential 
 word, where it is apparently a mere clerical 
 error, will not invalidate the certificate: 
 Scharfenburg i\ Bishop, 35-60. 
 
 13. The certificate is not to the genuine- 
 ness of the signature, but to the fact that the 
 party acknowledged the instrument, and the 
 acknowledgment is sufficient although the 
 signature may have been written by an- 
 other for the grantee: Morris v. Sargent, 
 18-00. 
 
 14. Evidence: The certificate is prima 
 facie evidence of the fact of acknowledg- 
 ment, but is not conclusive, and may be over- 
 come by other evidence, the burden being 
 upon the party seeking to rebut the efi'ect 
 of the certificate : Ibid. ; Van Orman v. 
 McGregor, 33-300 ; Borland v. Walrath, 33- 
 130. 
 
 15. If a mortgage is duly acknowledged, 
 the introduction thereof in evidence, accom- 
 panied by the notes referred to therein as ex- 
 ecuted by the same party, is prima facie 
 sufficient to establish the execution of the 
 mortgage and also of the notes: Mixer v. 
 Bennett, 70 . 
 
 16. The certificate of the officer, and his 
 testimony as to the acknowledgment, are en- 
 titled to great weight. The presumption is 
 
 ' Code, § 1958. The court or officer taking the acknowledgment must indorse upon the deed or other instru- 
 ment a certificate setting forth the following p,articulars : 
 
 1. The title of the court or person before whom the acknowledgment was taken; 
 
 3. That the person making the acknowledgment was personally known to at least one of the judges of the 
 court, or to the officer taking the acknowledgment, to be the identical person whose name is affixed to the 
 deed as grantor, or that such Identity was proved by at least one credible witness, naming him ; 
 
 3. ThafrsUCh person acknowledged the instrument to be his Tolimtary act and deed. 
 
ACKNOWLEDGMENT, I, II. 
 
 Who may take. — Who may make. 
 
 very strong in his favor : Bailey v. Landing- 
 ham, 53-732. 
 
 ] 7. The certificate of the notary public as 
 to the acknowledgment by the grantor, and 
 the positive testimony of such officer as to 
 the fact of such acknowledgment, will prevail 
 over the denial, on the part of the grantor, of 
 the fact of making such instrument. Deeds, 
 mortgages and other instruments requiring 
 an acknowledgment before an ofiicer should 
 not be set aside vs^ithout clear and satisfactory 
 evidence, and the seal and acknovrledgment of 
 the officer should in such cases be given proper 
 consideration : Herrick v. Musgrove, 67-63. 
 
 18. Parol evidence: It is not proper to 
 show by parol evidence, for the purpose of 
 sustaining an acknowledgment, that matters 
 required by statute to be done were done, 
 although not shown by the certificate : O'Fer- 
 rall V. Simplot, 4-381. 
 
 19. But parol evidence may be introduced 
 to show fraud in obtaining an acknowledg- 
 ment, or when the certificate is alleged to be 
 false, to show that the deed never was ac- 
 knowledged: Ibid. 
 
 20. If the certificate does not recite the 
 essential facts, it is not competent to prove 
 such facts by extrinsic evidence : Ibid. 
 
 21. Therefore, under the provisions of the 
 act of 1846, requiring the certificate of ac- 
 knowledgments by married women to show 
 that the wife was made acquainted with the 
 contents of the conveyance, and that she 
 relinquished her dower, held, that a convey- 
 ance by a married woman, in which the ac- 
 knowledgment did not show such facts, was 
 void as to her, and that the requisite facts 
 could not be shown by parol testimony : 
 O'Ferrall v. Simplot, 4 G. Gr., 163. 
 
 22. Effect of .acknowledgment, in regard 
 to the admission of the instniment in evi- 
 dence, see EviDKNCE, §§ 578-584. 
 
 23. Who may take: An acknowledgment 
 before a deputy clerk acting in the name 
 of his principal is good: Abrams v. Ervin, 
 9-87. 
 
 24. An acknowledgment certified to by an 
 officer interested therein (as a member of the 
 firm of grantees) iS void, and the record of such 
 instrument will not impart notice: Wilson 
 V. Truer, 30-231. 
 
 25. While the acknowledgment of an in- 
 strument taken before the grantee as an 
 
 officer will not be valid, yet the mere fact 
 that the person for whom the acknowledg- 
 ment is taken has an interest in the property 
 conveyed, will not necessarily render the ac- 
 knowledgment void, although it might be a 
 circumstance tending to show fraud: Diis- 
 saume v. Burnett, 5-95. 
 
 26. Official title: The official title of a 
 notary public is, "A. B., a notary public for 
 ■ county," etc., and a failure to set forth 
 
 the name of the county renders the certifi- 
 cate void. The fact that the name of the 
 county appears from the impression of the 
 seal will not remedy the defect : Willard v. 
 Cramer, 36-33. 
 
 27. Notaries public in this state have juris- 
 diction only within the respective counties 
 for which they are appointed, and the title 
 of each must be defined to be a notary public 
 of some county, naming it. The certificate 
 must show the county of the notary public 
 making it, and the failure of the certificate 
 to so state will not be cured by the fact that 
 the county appears in the seal, which is not 
 required to show that fact: Greenwood v. 
 Jenswold, 69-53. 
 
 28. But this rule does not apply to the offi- 
 cial signature to the jurat of an affidavit: 
 Stoddard v. Sloan, 65-680. 
 
 29. While the certificate should set forth 
 the title of the court or officer before whom 
 the acknowledgment is made, there is no re- 
 quirement that the name of the officer shall 
 be set out in the body of the certificate: 
 Fogg V. Holcomb, 64-621. 
 
 30. When no seal of the officer or certifi- 
 cate as to his official character is attached to 
 the certificate of acknowledgment, as con- 
 templated by statute, it is not valid : Jone.i v. 
 Berkshire, 15-248. 
 
 31. Amendment of certiflcate: Whilst 
 a notary continues in office, it is competent, 
 for him to amend his certificate of acknowl- 
 edgment, to supply a defect, by making a new 
 one, provided it is in accordance with the 
 real facts: Chicago, B. &■ Q. R. Co. v. 
 Lewis, 58-101. 
 
 II. Who may make the acknowledg- 
 ment. 
 
 32. Attorney in fact : Prior to the act of 
 1858 an acknowledgment of a chattel mort- 
 
ACKNOWLEDGMENT, III, IV — ACTIONS. 
 
 Liability of officer. — Tax deeds. 
 
 gage by an attorney in fact, as his voluntary 
 act and deed, would be the acknowledgment, 
 in law, of his principal: Sowden v. Craig, 
 26-156. 
 
 33. Municipal officer: Where a deed 
 offered in evidence purported to have been 
 executed by one Q., as mayor of the city of 
 D., having the seal of the city afBxed and 
 duly attested by the recorder, and was prop- 
 erly acknowledged and recorded, the certifi- 
 cate of the officer taking the acknowledgment 
 showing that Q. was personally known to 
 him as the identical person whose name was 
 affixed to the deed as president pro tempore 
 of the city council, and acting mayor of the 
 city of D. , held, that such deed was prima 
 facie proof that Q. was at the time acting 
 mayor of the city, and, coupled with what 
 the court might take judicial notice of on 
 this subject, rendered the introduction of the 
 deed in question competent without further 
 proof as to the official character of the said 
 Q. : Middleton Savings Bank v. Dubuque, 
 19-467. 
 
 34. Officers of corparation: Where an 
 assignment of a judgment in favor of a bank 
 was signed by persons designating tliemselves 
 as president and secretary, but the acknowl- 
 edgment thereof did not state that they were 
 such officers, held, that the assignment was 
 not sufficient to establish the official charac- 
 ter of the persons whose names were attached 
 thereto or show that they had authority to 
 act for the bank: Klemme v. McLay, 68- 
 158. 
 
 35. By married woman: Where the cer- 
 tificate of acknowJedgment to a trust deed 
 appeared regular and in due form, but the 
 evidence showed that the notary had certi- 
 fied to the acknowledgment of the same by 
 tlie wife without requiring her personal 
 presence, but upon a previous verbal author- 
 ity given by her, held, that tlie validity of 
 the deed could not be questioned for that 
 reason by the wife as against parties who 
 had loaned money upon the strength of the 
 security, regular upon its face : McHenry v. 
 Day, 13-445. 
 
 III. Liability of officer. 
 
 36. N«?lig-ence: The fact that a notary 
 makes a false certificate as a result of negli- 
 
 gence will not render him liable. Whatever 
 liability there is exists by reason of statute : 
 Scotten V. Fegan, 62-336. 
 
 37. Wilful misstatement: In an action 
 against a notary for damages under the stat- 
 ute, it must be alleged that he knowingly 
 misstated a material fact : Ibid. 
 
 38. Damages: The officer is only liable for 
 such damages as are caused by his wrongful 
 act and necessarily connected with it : Wyllis 
 V. Haun, 47-614. 
 
 39. Where it does not appear that the offi- 
 cer taking the acknowledgment lyiowingly 
 misstated a material fact, as, for instance, that 
 the person making the acknowledgment was 
 the identical person whose name was affixed 
 to the instrument, the officer will not be 
 liable. The law does not make the officer 
 taking the acknowledgment a guarantor that 
 the person signing the instrument is the per- 
 son who is the owner of the land referred to 
 therein : Browne v. Dolan, 68-645. 
 
 IV. Acknowledgment of tax deeds. 
 
 40. Acknowledgment essential: The ac- 
 knowledgment of a tax deed being essential 
 to its validity, held, that such a deed ac- 
 knowledged before a person who was county 
 judge at the time of the abolition of that 
 office, and who was, by provision of law, 
 continuing to act as county auditor ex officio 
 until a county auditor should be elected, was 
 void : Goodylcoontz v. Olsen, 54-174. 
 
 41. Legalizing acts: As the act to legalize 
 defective acknowledgments (see Code, g 1966) 
 applied only to cases where there was a legal 
 deed antecedent to any attempt to acknowl- 
 edge, it had no effect to render valid a tax 
 deed which was previously invalid for want 
 of acknowledgment : Ibid. 
 
 ACTIONS. 
 
 I. What deemed an action; special 
 
 PROCEEDINGS; SUBMISSION IN ACTION 
 AND WITHOUT ACTION. 
 
 II. Form of actions; proceedings ordi- 
 nary AND EQUITABLE; CHANGE OP 
 KIND OP PROCEEDING ; SEPARATE TRIAL 
 OF EQUITABLE ISSUES. 
 
 As to trial of equitable defenses, see 
 Practice, II, d. 
 
ACTIONS, I, II. 
 
 What deemed. — Form. 
 
 III. Right of action, accrues when ; com- 
 
 mencement OF action. 
 
 IV. Survival of actions. 
 
 V. Actions in rem against boats oe 
 
 VESSELS. 
 
 Assignment of causes of action^ see Assign- 
 ment. 
 
 Limitation of Actions, see that title. 
 
 Action to recover Real Property, see that 
 title, II. 
 
 Action to recover personal property, see 
 Replevin. 
 
 I. What deemed an action; special 
 proceedings; submission in ac- 
 tion AND without action. 
 
 1. Civil actions include everything except 
 those cases which come under the criminal 
 jurisdiction of the court : Tomlinson v. Ham- 
 mond, 8-40. 
 
 2. The term civil action includes ordinary 
 proceedings and also proceedings in equity : 
 Kramer v. Rebman, 9-1 14. 
 
 3. The granting of letters of administra- 
 tion by a county court held not to constitvite 
 another action pending so as to defeat the 
 jurisdiction of the district court which 
 would otherwise attach: Waples v. Marsh, 
 19-381. 
 
 4. Where a note provided for an attorney's 
 fee, in case action was brought thereon, 
 held, that filing the note as a claim against 
 the estate, the claim being resisted, was suf- 
 ficient bringing of action to entitle plaintiff 
 to the attorney's fee : Davidson v. Varse, 53- 
 384. 
 
 5. Special proceedings: Proceedings to 
 ilisbar an attorney are special proceedings: 
 State V. Clarke, 46-155. 
 
 6. Under the statutory provision (Code, 
 § 2520) that the provisions concerning the 
 prosecution of a civil action shall be followed 
 in special proceedings not otherwise regu- 
 lated, so far as applicable, held, that proceed- 
 ings to condemp property for a work of 
 internal improvement should be governed, 
 as far as practicable, by the rules governing 
 ordinary actions: Forney v. Ralls, 80-559. 
 
 7. Thus it was held that the provisions of 
 the civil code as to change of place of trial 
 were applicable in an appeal in the circuit 
 court in a proceeding to condemn land for a 
 
 right of way: Whitney r. Atlantic Southern 
 R. Co., 53-651. 
 
 8. This- provision was a,pplied also to jjro- 
 ceedings to disbar an attorney: State i: 
 Clarke, 46-155, 159. 
 
 9. Sabmigsion witliout action: Under 
 statutory provision (Code, § 3408) for submis- 
 sion of a question in difference which might 
 be the subject of a civil action without an 
 action upon an agreed statement of facts, 
 held, that pleadings were not necessary : 
 Donald v. St. Louia, K, C. & N. R. Co., 52- 
 411. • 
 
 10. The statutory provision that in such 
 case it must be shown by affidavit that the 
 controversy is real and the proceeding is in 
 good faith to determine the rights of the 
 parties, is jurisdictional, and in the absence 
 of compliance therewith a court cannot take 
 cognizance of the case: Keeline v. Council 
 Bluffs, 63-450. 
 
 11. Submission iii action: Where pending 
 the trial of a cause the facts were agreed 
 upon by the parties "to save expense and to 
 simplify the issue" upon which the court 
 should render judgment, held, that it was 
 the duty of the court to give such judgment, 
 whether legal or equitable, as the facts agreed 
 upon should be deemed to warrant or require : 
 Logan v. Hall, 19-491. 
 
 12. Where a party has submitted a cause 
 upon an agreed statement of facts, the court 
 should enter such judgment as to his rights 
 under the facts agi-eed upon as will establish 
 the respective rights of the parties : Kraft v. 
 James, 64-159. 
 
 Submission to Arbitration, see that title. 
 
 II. Form of action; proceedings or- 
 dinary AND equitable ; CHANGE 
 
 of kind of proceeding; sepa- 
 rate trial of equitable issues. 
 
 As to trial of equitable defenses see Prac- 
 tice, II, d. 
 
 13. All teclinical forms of action and of 
 pleading are abolished:. Heichew v. Hamil- 
 ton, 3G. Gr., 596. 
 
 14. Although forms of proceedings are 
 abolished, yet pleas in abatement, such as to 
 the jurisdiction, or of another action pending, 
 are still proper and legitimate : Rawson v. 
 Ouiberson, 6-507. 
 
ACTIONS, II. 
 
 Form. 
 
 15. Under the equity procedure the dis- 
 tinction as to the form of stating an action 
 of tx-espass and one of trespass on the case is 
 imn>aterial: Brown v. Hendriokson, 69-749. 
 
 16. Ordinary and equitable proceedings: 
 Tlie legislature has no power to abolisli the 
 distinction between pleadings at law and in 
 equity. Such distinction is defined and recog- 
 nized by the constitution: Claussen v. La- 
 frenz, 4 G. Gr., 224. 
 
 17. By the provisions of the Code, it was 
 intended to assimilate and make uniform the 
 procedure in all law and equity cases. The 
 changes introduced by the Code were to be 
 applied equally to both : Sliepard v. Ford, 
 10-503. 
 
 18. The term "civil actions" includes pro- 
 ceedings in equity as well as ordinary pro- 
 ceedings : Kramer v. Rebman, 9-114. 
 
 19. What actions to be in equity; fore- 
 closure of mortgage: The provision (Code, 
 g 3509) that an action to foreclose a mortgage 
 shall be by equitable proceedings is not in 
 conflict with the constitutional provision 
 guarantying the right of trial by jury. Such 
 right was never recognized in suits in equity : 
 State V. Orwig, 25-280; Clough v. Seay, 49- 
 111. 
 
 20. Action on a mortgage and to recover 
 judgment on the note secured thereby is not 
 an improper union of legal and equitable pro- 
 ceedings : Cooley v. Hobart, 8-358. 
 
 21. To foreclose mechanic's lien: All per- 
 sons interested must be made parties to the 
 proceedings before they can be affected by 
 the decree : Jones v. Hartsock, 43-147, 153. 
 
 22. Held, that an action at law might, by 
 consent of parties, be tried in connection 
 with equitable actions to enforce mechanics' 
 liens against the same defendant, and one 
 judgment rendered therein adjusting all 
 claims between them : Hines v. Whitebreast 
 Coal, etc., Co., 48-296. 
 
 23. Under Revision, § 4183, by which 
 an action for a mechanic's lien was to be 
 prosecuted as an ordinary proceeding, held, 
 that subsequent incumbrancers need not be 
 made parties, and that even though not made 
 parties they could not bring action to redeem, 
 and that in such cases there was no equity of 
 redemption as in case of a mortgage : State 
 V. EadSj 15-114; and see Shields v. Keys, 34- 
 398, 308. 
 
 24. Even if in such action there is a mis- 
 joinder of causes of action, objection thereto 
 is deemed waived unless made as provided 
 elsewhere in reference to misjoinder of ac- 
 tions: Flynn v. Des Moines dk St. L. B. Co., 
 68^90. 
 
 25. Divorce: An action for divorce being 
 equitable, the right to a trial by jury does 
 not exist, and the parties are entitled to a 
 trial de novo in the supreme court : Sherwood 
 V. Sherwood, 44-192. 
 
 26. Other cases of equitable relief: 
 Under the statutory provision (Code, g 2508) 
 that plaintiff may prosecute his action by 
 equitable proceedings in all cases where 
 courts of equity, before the adoption of the 
 Code, had jurisdiction, and must so proceed 
 in all cases where jurisdiction was exclusive, 
 held, that reformation of an instrument to 
 correct a mistake could not be granted in an 
 action at law: Adams v. Commercial Nat. 
 Bank, 58-491. 
 
 27. The statutory provision (Code, § 3331) 
 allowing a nuisance to be abated at law does 
 not abrogate the equitable reniedy before ex- 
 isting by way of injunction: Bushnell v. 
 Robeson, 63-540. 
 
 28. Where plaintiff has an election to 
 bring an action at law or in equity, and 
 brings it in equity, it is eiTOr to transfer the 
 cause on motion of the opposite party to the 
 law docket : Oribben v. Hansen, 69-255. 
 
 29. Where the prayer of a petition in an 
 action for the recovery of real property was 
 for judgment establishing in plaintiff an 
 estate in fee-simple in the land and giving 
 him the immediate possession thereof, and 
 determining and quieting the title, and for 
 judgment for a specific sum. held, that as a 
 judgment for possession, together with dam- 
 ages for detention, amounted, as between 
 the parties, to all that was asked for in the 
 prayer, it was not error to overrule a motion 
 to transfer the cause to the equity docket: 
 Byers v. Rodabaugh, 17-58. 
 
 30. Where an auxiliary injunction was 
 issued to prevent garnishees from paying over 
 money upon intervention under the statu- 
 tory provisions for injunction in ordinary 
 proceedings, and every issue made could be 
 and was tried at law, held, that the auxil- 
 iaiy injunction did not change the action 
 from one by ordinary to one by equitable 
 
ACTIONS, II. 
 
 Form. 
 
 jiroceedings, and the court might try the case 
 as an action at law : Pool v. Paul, 33-421. 
 
 31. Ilabens corpus proceedings: Under 
 t he statutoiy provision (Code, § 2513), that in 
 ••ill cases not otherwise provided for, plaintiff 
 must prosecute his action by ordinary pro- 
 ceedings, the action for the writ of habeas 
 corpus was to be tried as an ordinary action 
 at law: Shaw v. Nachtwey, 43-653; Drumb 
 r. Keen, 47-435. 
 
 32. Effect of error as to proper form of 
 proeeedins : An action erroneously brought 
 at law may be changed to an action in 
 equity without leaving the court : Holmes v. 
 Clark, 10-423, 427. 
 
 33. Relief will not be denied because plaint- 
 iff has addressed his petition to the wrong 
 .side of the court if he is entitled to relief : 
 McDole V. Purdy, 23-377. 
 
 34. The fact that plaintiff has improperly 
 commenced his action by equitable proceed- 
 ings when it should have been by law will 
 not prevent his having an injunction under 
 the provisions of the statute in such cases 
 applicable to law actions : Mills v. Hamilton, 
 49-103. 
 
 35. Error, how remedied: An error in 
 commencing an action in equity instead of 
 at law, or vice versa, should be corrected by 
 motion (Code, «;§ 2514-3516). It is not a 
 ground of demurrer : Conyngham v. Smith, 
 16-471; Brown v. Mallory, 36-469; Wright 
 V. McComiiok, 33-545; Pella v. Scholte, 21- 
 463. 
 
 36. That plaintiff has a full, speedy and 
 complete remedy at law is not proper ground 
 for demurrer. The remedy is by motion to 
 have the action changed into the proper pro- 
 ceeding : Savery v. Browning, 18-346 ; Traer 
 r. Lytic, 20-301 ; Gray v. Coan, 23-344; Qibbs 
 V. MoFadden, 39-371; Independent School 
 JOist. V. Independent School Dist, 41-331. 
 
 37. Where an amendment is made during 
 the trial, changing the nature of the action, 
 motion to change the cause to the proper 
 docket should then be made, and not a mo- 
 tion to strike the amendment from the files, 
 on that ground : Weaver v. Kintzley, 58-191, 
 
 38. The fact that an action is in equity in- 
 stead of at law is not fatal. Defendant may 
 luive the action tried as an action at law, and 
 failing to avail himself of that right he can- 
 not complain: LevHsv. Soule, 33-11. 
 
 39. A party who fails at the proper time 
 to object to the prosecution of an action in 
 equity which should have been at law, by 
 moving to transfer it to the law docket, Ls 
 presumed to have waived objection on that 
 ground and to have assented to the cause 
 pi-oceeding as an equitable action, and in 
 such case such relief as equity might render 
 in a proper case might be given : Richmond 
 V. Dubuque & S. C. R. Co., 33-423, 504. 
 
 40. Change of proceeding to proper 
 docket: The motion to change the case to 
 the proper docket, as authorized by Code, 
 §§ 3514-3516, cannot be made after filing an 
 answer, nor at the time of filing an answer to 
 an amended petition, when the fact of error 
 in the proceedings was apparent but not 
 taken advantage of at the time of filing an 
 answer to the original petition: Moore v. 
 District T'p, 38-425. 
 
 41. Objection that the action was brought 
 by the wrong kind of proceedings cannot be 
 taken advantage of after judgment: Hatch 
 V. Judd, 29-95. 
 
 42. If the proper steps to effect the change 
 are not taken in the court below, the remedy 
 is regarded as waived r Parshall v. Moody, 
 34-314; Green v. Marble, 37-95; Knott v. 
 Tincher, 39-638. 
 
 43. Generally a judgment in an equitable 
 proceeding may be sustained if objection to 
 the form of proceeding has not been made in 
 the manner prescribed by the statute, though 
 the action should have been by ordinary pro- 
 ceeding ; but if upon the merits of the case 
 the relief granted would have been denied at 
 law and ought not to have been given in an 
 equitable proceeding, the judgment will not 
 be sustained : Richmond v. Dubuque & S. C. 
 R. Co., 33-423, 489. 
 
 44. Where an action is improperly prose- 
 cuted by equitable proceedings, a failure to 
 object thereto as provided in Code, § 3516, 
 operates as a waiver of a jury trial: Ibid., 
 490. 
 
 45. Probate proceedings: Under the stat- 
 utory provision (Code, § 2519) that an error 
 as to the kind of the proceedings is waived 
 by a failure to move ft)r its correction at the 
 proper time, held, that where proceedings in 
 the circuit court, which should have been 
 brought in probate, are entitled in equity 
 or at law, a motion to change to the proper 
 
ACTIONS, II. 
 
 Form. 
 
 Jocket is the only remedy : Ashlock v. Sher- 
 inan, 56-311; McName v. Malvin, 56-363; 
 First Nat. Bank v. Green, 59-171; Goodnoiv 
 V. Wells, 67-654. 
 
 46. Oil appeal : An objection to the form 
 of the proceeding cannot be fli'st raised on 
 appeal: Tugel v. Tugel, 38-849; Oould v. 
 Hurto, 61-45. 
 
 47. Error of the court in sustaining a motion 
 to transfer to the equity docket will not be 
 ground of reversal on appeal, where it does 
 not appear that the party excepted to such 
 action or demanded a jury trial: State v. 
 Craig, 58-238. 
 
 Further as to form of action on Appeal, 
 .see that title, §§ 993-995. 
 
 48. Equitable issues : i The issue must be 
 made before the transfer to the chancery 
 docket can be ordered by the court. The dis- 
 cretion of the court is a legal one and is 
 reviewable : McHenry v. Sypher, 13-585. 
 
 49. A case properly commenced by ordi- 
 nary proceedings is not to be transferred to 
 the equity docket on filing an answer setting 
 up equitable defenses, but either party may 
 have such equitable issues tried by equitable 
 proceedings: Byers v. Rodabaugh, 17-53. 
 
 50. Where defendant in an action to re- 
 cover real property brought his bill in equity, 
 setting up certain equitable defenses, and 
 asking that the action at law be enjoined 
 until the determination of such equitable 
 defenses, held, that it was not necessarily an 
 improper exercise of discretion to postpone 
 the legal action: Purington v. Frank, 3- 
 565. 
 
 51. The equitable issues which either party 
 elects to have tried by equitable proceedings 
 may be, and under ordinary circumstances 
 should be, first tried and settled : Hackett v. 
 High, 28-539. 
 
 52. After the equitable issues are thus 
 tried, any legal issues remaining are to be 
 disposed of in the manner provided for the 
 disposal of such issues : Rosierz v. Van Dam, 
 16-175 ; Van Orman v. Spafford, 16-186 ; Kra- 
 mer V. Conger, 16-434; Corbin v. Wood- 
 bine, 33-297. 
 
 53. But it is not imperative that the equ 
 table issue be tried first. That issue should 
 be first tried which may result in rendering 
 a further trial unnecessary : Morris v. Mer- 
 ritt, 52-496. 
 
 54. To entitle a defendant to a trial of 
 such equitable issue by equitable proceed- 
 ings, such issue must be one heretofore 
 exclusively cognizable in equity. (Decided 
 under Rev., §3617): Walton v. Gray, 29- 
 440. 
 
 55. In a particular case, held, that the 
 issues raised by defendant were such as to 
 entitle him to have them tried in equity : 
 Marling V. Burlington, C. R. & N. R. Co., 
 67-331. 
 
 56. Where parties who are made defend- 
 ants interpose a defense that is purely 
 equitable, the case may properly be tried as 
 an equitable action: Gresham v. Chantry, 
 69-738. 
 
 57. Where plaintiff seeks to recover real 
 property in an action at law, he cannot re- 
 cover upon proof of an equitable title, and if 
 he asks any equitable relief it is not error to 
 hold his petition insuflSlcient on demuiTer, 
 and it would be unavailing in such case to 
 transfer the cause to the equity docket : Kit- 
 teringham v. Blair Town Lot, etc., Co., 66- 
 280. 
 
 As to interposing equitable defenses in 
 an action at law, see Pleading, V, f. 
 
 58. Where an answer to a petition at law 
 set up both legal and equitable defenses, and 
 no separation of the legal and equitable 
 issues was had on the trial, held, on appeal, 
 that it would be treated as an equitable 
 action : Van Orman v. Merrill, 27-476. 
 
 And see Appeal, g§ 993-995. 
 
 59. Joinder of legal and equitable ac- 
 tions: By agreement parties may have pro- 
 ceedings in a law action joined to and tried 
 with those in an equitable action in which 
 the parties are not the same, but the action 
 stUl remains one at law: Hines v. White- 
 breast Coal, etc., Co., 48-296. 
 
 As to joinder of causes of action in gen- 
 eral, see Pleading, IV. 
 
 ' Code, § 2317. Where the action has been properly commenced by ordinary proceedings, either party shall have 
 the right, by motion, to have any issue heretofore exclusively cognizable in equity tried in the manner herein- 
 after prescribed in cases of equitable proceedings ; and if all the issues were such as were heretofore cognizable 
 in equity, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of 
 equitable proceedings. 
 
ACTIONS, III, IV. 
 
 Right accrues, when.— Survival. 
 
 III. Eight of action acceues, when ; 
 
 COMMENCEMENT OF ACTION. 
 
 As to the time limited for bringing actions, 
 see Limitation of Actions. 
 
 As to the method of commencing actions, 
 see Original Notice. 
 
 60. Action accrues, when: A right of 
 action does not accrue for a wrongful act 
 until the party complaining has suffered in- 
 jury therefrom. Therefore held, that action 
 against a clerk for taking an insulficient stay 
 bond did not accrue until the stay expired : 
 Steel V. Bryant, 49-116; Moore v. McKin- 
 ley, 60-367. 
 
 Gl. An action on a promissory note brought 
 before the expiration of the days of grace 
 cannot be maintained: Seaton v. Hinneman. 
 50-395 ; Whitney v. Bird, 11-407. 
 
 62. Demand : It is only in case where de- 
 mand is necessary to the creation of plaintiff's 
 right that it is necessary to allege a demand. 
 Where the duty for the breach of which suit 
 is thought arises without demand, such de- 
 mand need not be pleaded in order to show a 
 cause of action accrued: Zimmerman v. 
 National Bank, 56-133. 
 
 As to when demand must be alleged and 
 proven in an action of Eeplevin, see that 
 title, g§ 18-26. 
 
 63. When action deemed commenced: An 
 action may be considered as begun for some 
 purposes when the petition is filed; for | in- 
 stance, for the purpose of issuing a writ of at- 
 tachment: Hagan v. Burch, 8-309: Meed v. 
 Chuhh, 9-178 ; Elliott v. Stevens, 10-418. 
 
 64-. In general an action is deemed com- 
 menced when the notice is served upon de- 
 fendant and not when placed in the hands of 
 the officer for service : Parkyn v. Travis, 50- 
 436. 
 
 65. Thus, where the notice was placed in 
 the sheriff's hands for service April 1st, but 
 it was not served until April 3d, and the 
 right of action accrued April 3d, held, that 
 the cause of action had accrued before suit 
 was commenced : Ibid. 
 
 And see further. Original N0TiCB,§y58,59, 
 and Attachment, §g 5-7. 
 
 For the purpose of determining whether 
 action is commenced within the period al- 
 
 lowed by the statute of limitations, it is 
 deemed commenced when the notice is placed 
 in the hands of the sheriff for service with 
 intention that it be served immediately : See 
 Limitation of Actions, §§ 171-177. 
 
 Presentation of claim against county: 
 An action against a county on an unliqui- 
 dated demand cannot be brought until the 
 claim has been presented to the board of 
 supervisors : See Municipal Corporations, 
 §§ 188-208. 
 
 lY. SuEvivAL of actions;' assign- 
 ment. 
 
 66. Kiglit of action or defense survives: 
 
 Any rights of remedy or defense existing in 
 a party pass to his representatives on his 
 death : Harper v. Drake, 14-533. 
 
 67. An action for libel will survive: Car- 
 son V. McFadden, 10-91. 
 
 68. Although an action for slander will 
 survive against the personal representatives 
 of defendant, the plaintiff cannot recover, as 
 against such representatives, exemplary or 
 punitive damages: Sheik v. Hobson, 64- 
 146. 
 
 69. An action for injury to the person will 
 survive: MoKinlay v. McGregor, 10-111. 
 
 70. A servant's right of action for personal 
 injury against his master survives the death 
 of the servant: Mumm v. Owens, 2 Dillon, 
 475. 
 
 71. An action for seduction brought by the 
 female herself survives: Sliafer v. Grimes, 
 33-550. 
 
 72. An action for divorce is abated by the 
 death of the parties, and with it all claim 
 for alimony: Barney v. Barney, 14-189; 
 O Hagan v. CfHagan's Ex'r, 4-509. 
 
 73. If a counter-claim is properly main- 
 tainable in favor of two defendants, the 
 death of one of them will work no abate- 
 ment thereof : Moorehead v. Hyde, 38-383. 
 
 74. A deposition taken after plaintiff's 
 death upon notice served before his death 
 cannot be used in subsequent proceedings in 
 which the personal representatives are 
 substituted, and should be stricken from 
 the files on motion: Kershman v. Swhela, 
 59-98. 
 
 * Code, § 3525. All causes of actions shall survive, and may be brought, notwithstanding the death of the 
 person entitled or liable to the same. 
 
10 
 
 ACTIONS, IV, V. 
 
 Assignment.— Against boats and vessels. 
 
 75. Assignment: All causes of action 
 wliich survive under the statutory provision 
 above referred to are assignable: Gray v. 
 McCallister, 50-497. 
 
 76. A cause of action for a personal tort is 
 assignable: Ibid.; Weire v. Davenport, 11- 
 49; Vimont v. Chicago & N. W. R. Co., 64- 
 513. 
 
 7 7. An assignment absolute in form vests 
 plaintiff with the title and property in the 
 claim, and is sufficient to enable the assignee 
 to bring action thereon in his own name, 
 although the assignment to him is merely in 
 trust : Ooodnow v. Litchfield, 63-275. 
 
 And further as to assignment of causes 
 of action, see Assignment. 
 
 78. Eight of action for injuries causing 
 death: i In determining whether the cause of 
 action accrues to the person injured or only 
 to his legal representatives, the test is, 
 whether he lived after the injury, and not the 
 length of time he lived thereafter. If he 
 lived but a short time, the cause of action 
 accrued to him as actually as it would have 
 done, had he lived a month or a year there- 
 after. (Overruling Sherman v. Western Stage 
 Co., 24-515): Kellow v. Central lotva S. 
 Co., 68-470; Eioell v. Chicago <fc N. W. B. 
 Co., 39 Fed. Eep., 57. 
 
 79. At common law, no action could be 
 maintained for an injury resulting in death, 
 and the right of recovery for such injuries 
 exists, if at all, only by reason of the law of 
 the place of the injury: Hyde v. Wabash, 
 St. L. & P. R. Co., 61-441. 
 
 80. Under laws of another state: There- 
 fore, held, that the personal representatives 
 of the person whose death was caused by an 
 injury in Missouri, where the statute does 
 not authorize a recovery in such cases by the 
 personal representatives, could not maintain 
 an action for such injury in the courts in 
 Iowa: Ibid. 
 
 81. A right of action for personal injury 
 arising under the laws of this state, being 
 assignable in this state, an action may be 
 brought here by an assignee thereof , although 
 the assignment is made in a state where the 
 common law rule prohibiting such assign- 
 
 ments is still in force : Vimont v. Chicago & 
 N. W. B. Co., 69-396. 
 
 82. Where the right of action accrues by 
 virtue of the statute of one state, the action 
 may be maintained in another state, if not 
 contrary to the public policy or laws of the 
 place where suit is brought: Morris v. Chi- 
 cago, B. I. & P. B. Co., 65-727. 
 
 83. Therefore, where the death which was 
 the subject of the action was caused in the 
 state of Illinois by the negligence of a raU- 
 way company, and the statutes of Illinois 
 gave to the administrator of deceased the 
 right of action for such injury, held, that the 
 courts of Iowa, within which defendant was 
 also operating its line of railroad, might ob- 
 tain jurisdiction, and appoint an administra- 
 tor to maintain a suit for the recovery of the 
 damages allowed by the statutes of Illinois: 
 Ibid. 
 
 84. Action against corporation: A cor- 
 poration is liable in a civil action for wrong- 
 ful acts of its servants, done in its employ- 
 ment and producing death. Its liability, 
 however, would not probably be held to ex- 
 empt the immediate agent from liability: 
 Donaldson v. Mississippi & M. B. Co., 18- 
 280. 
 
 85. Where an employee of a railroad com- 
 pany received injuries through the wrongful 
 act of a co-employee, resulting in death, the 
 company was held to be the "perpetrator" 
 within the language of Eev., § 4111, and 
 civilly liable : Philo v. Illinois Cent. R. Co., 
 83-47. 
 
 Measure of damages: See Damages, II, g. 
 
 V. Actions in eem against boats and 
 
 VESSELS. 
 
 86. State jurisdiction: The jurisdiction 
 of federal courts of admiralty is exclusive of 
 the jurisdiction of the state court to enter- 
 tain a proceeding in rem against a boat on a 
 cause of action cognizable in admiralty, 
 and the provisions of the Kevision (corre- 
 sponding to -Code, § 3433 et seq.) assuming to 
 confer such jurisdiction upon the state courts 
 are unavailing for that purpose. (Overrul- 
 
 ' Code, § 2386. Tlie right of civil remedy is not merged in a public offense, but may, in all cases, be en- 
 forced independently of, and in addition to, the punishment of the latter. When a wrongful act produces death, 
 the damages shall be disposed o£ as personal property belonging to the estate of the deceased, except that if 
 the deceased leaves a husband, wife, child or parent, it shall not be liable for the payment of debts. 
 
ACTIONS, V — AFFIDAVITS. 
 
 11 
 
 Against boats and vessels. — Signature. 
 
 ing Trevor v. Steamboat Ad. Hine, 17-849): 
 The Hine v. Trevor, 4 Wall., 555; Walters 
 V. Steamboat Mollie Dozier, 24^193. 
 
 87. Petition: Under the provisions of the 
 Revision, held, that the petition in such a 
 proceeding in rem need not aver that the 
 boat was within the jurisdiction of the state 
 at the time suit was commenced. It is the 
 service of the warrant that brings the prop- 
 erty within the jurisdiction of the court. If 
 the contract for the breach of which action is 
 brought is violated within the waters of this 
 state, and the boat is seized under wai-rant 
 properly issued, the court will have jurisdic- 
 tion although such contract was made else- 
 where: Baker v. Steamboat Milu-aiikee, 14^ 
 314. 
 
 88. Wliat cliarges enforcible: Under the 
 provisions of Code of '51, which made cer- 
 tain charges a lien against the boat, held, 
 that the seizure and sale of the boat under 
 the laws of another state did not divest it of 
 such lien : Haight v. Steamboat Henrietta, 
 4r-472; Ogden v. Ogden, 13-176. 
 
 89. Also, held, that the boat was liable for 
 money collected from consignments of goods 
 for freight due a railroad company from 
 whom the goods were received to be for- 
 warded to their destination, and that such 
 transaction was a "' contract relative to the 
 transportation of" freight: Chicago, B. & 
 Q. R. Co. V. Steamboat Woodsides, 10-465. 
 
 90. The use of a barge may constitute a 
 supply for which a claim against the boat 
 may be enforced in such proceedings: Steam- 
 boat Kentucky v. Brooks, 1 G. dr., 398. 
 
 91. It is sufficient to allege that the con- 
 tract was made with the boat : West v. Barge 
 Lady Franklin, 3-523. 
 
 92. Under the provisions of Code of '51, 
 held, that the remedy intended was not de- 
 signed solely for the benefit of the party fur- 
 nishing the supplies, but that a hen could be 
 transferred by assignment and enforced by the 
 transferee : Strother v. Steamboat Hamburg, 
 11-59. 
 
 93. Under the provision (Code, § 3445) that 
 any raft found in the waters of the state 
 shall be liable for all debts contracted by the 
 owner, agent, clerk or pilot thereof on ac- 
 count of work done or service rendered for 
 such raft, the lien referred to will attach 
 •under a contract with the pilot, although be- 
 
 tween him and the owner there is an agree- 
 ment that the former shall bear aU the ex- 
 penses : Hanson v. Hiles, 34-850. 
 
 94. Jurisdiction: A warrant and seizure 
 of a boat thereunder is essential to confer 
 jurisdiction upon the court. The proceeding 
 is one in rem: Ham v. Steamboat Hamburg, 
 3-460. 
 
 95. Discharge of lien: Under the statutory 
 provisions for a discharge, held, that a formal 
 entry of discharge under the bond was not 
 necessary to render the principal and sure- 
 ties liable thereon. Nor need the bond be 
 formally approved if it is accepted by the 
 officer and the boat released : White v. Tis- 
 dale, 13-75. 
 
 96. A judgment may be rendered against 
 the boat, and at the same time against the 
 sureties on a bond on which the boat has been 
 discharged: Ogden v. Ogden, 13-176. 
 
 ADMINISTRATORS. 
 
 See Estates of Decedents. 
 
 AD QUOD DAMNUM. 
 
 See Railroads, ni. 
 
 ADTERSE POSSESSION. 
 
 See Real Peopeety. 
 
 AFFIDATITS. 
 
 1. Signature: An affidavit is defined by 
 statute (Code, § 3689) to be a wi-itten declara- 
 tion under oath. This clearly implies that it 
 should be signed by the affiant: Crenshaw 
 V. Taylor, 70 . 
 
 2. The jnrat or certificate need not state 
 the name of the person signing or sweai-ing 
 to the affidavit : Stone v. Miller, 60-243. 
 
 3. It is not necessary that the jurat ex- 
 pressly show that the person sworn is the 
 person who subscribed to the affidavit. A 
 jurat in the following form: " subscribed in 
 my presence and sworn to before me," giving 
 the date, held sufficient : Stoddard v. Sloan, 
 65-680. 
 
 4. The signature to a jurat by an officer 
 writing his name with the designation, "No- 
 
12 
 
 AFFIDAVITS — AGENCY. 
 
 Appointment and revocation. 
 
 tary Public," is sufficient without adding the 
 name of the county in and for which he is a 
 notary. The court will take judicial notice 
 of the fact that he is a notary for that 
 county: Ibid. 
 
 5. Where an affidavit is headed with the 
 name of the state and county, and the signa- 
 ture of the notary is authenticated with a 
 seal, such signature is sufficient if it contains 
 the name of the notary with the addition 
 " Notary Public," without stating the state 
 or county for which he is notary: Stone v. 
 Miller, 60-243. 
 
 6. Where the venue of the affidavit is not 
 indicated, it will be presumed that the oath 
 was administered within the county in 
 which the justice of the peace administering 
 it had jurisdiction, that being the county in 
 which the action was pending and in which 
 the pleading was filed: Snell v. Eckerson, 
 8-284. 
 
 7. Although, in the caption, the affidavit 
 is entitled of one county, while it appears to 
 have been sworn to before a notary public in 
 another county, the presumption is that the 
 notary public took, the affidavit within his 
 own jurisdiction, and the caption will not be 
 sufficient to show that it was sworn to with- 
 out such jurisdiction : Goodnow v. Litchfield, 
 67-691. 
 
 8. Taken out of state: The fact that the 
 officer before whom an affidavit is made, out 
 of the state, is authorized to administer 
 oaths may be established aliunde: Levy v. 
 Wilson, 43-605. 
 
 9. While the laws of other states will be 
 presumed to be the_same as the laws of this 
 state, requiring the seal of the notary to 
 have engraved thereon the name of his state, 
 yet where the court receives and acts upon 
 an affidavit for change of venue sworn to 
 before a notary public of another state, 
 whose seal does not bear the name of his 
 state, it will be presumed that some showing 
 was made that the seal was such as required 
 by the laws of the state where the jurat was 
 executed : Ooodnow v. Litchfield, 67-691. 
 
 10. Amendment: Where an affidavit of- 
 fered in evidence is authenticated by the 
 signature and seal of a notary public, but the 
 jurat does not refer to the seal, the notary 
 may amend the jurat : Hallett v. Chicago & 
 N. W. B. Co., 33-259. 
 
 AGENCY. 
 
 I. Appointment and revocation. 
 
 a. General fact of agency. 
 
 b. Revocation in general and effect 
 
 thereof. 
 
 c. Revocation by death of the princi- 
 
 pal. 
 
 II. Extent of authohitt. 
 
 a. In general. 
 
 h. Powers of agents construed. 
 c. Delegation of authority to agent. 
 
 III. Liability of principal and agent re- 
 
 spectively to third parties. 
 
 a. By contract. 
 
 b. By conduct in general. 
 
 c. Declarations, res gestae. 
 
 d. Notice to, and knowledge of, agent. 
 
 IV. Rights and liabilities between prin- 
 
 cipal AND AGENT. 
 
 a. Duties and liabilities of agent to- 
 
 wards principal. 
 
 b. Compensation of agent. 
 
 Q. Good faith from agent to princi- 
 pal. 
 V. Ratification, vsthat constitutes; ef- 
 fect. 
 As to powers and duties of Attorneys, see 
 that title. 
 
 I. Appointment and eevocation. 
 
 a. General fact of agency. 
 
 1. Assent of parties necessary to ageney : 
 
 The relation of principal and agent cannot 
 be created unless by contract. Therefore, in 
 a particular case, where it was sought to hold 
 a corporation as agent, and the evidence 
 merely showed that three of its officers had 
 acted as such agent, the fact was held not to 
 be sufficiently established : Storm Lake Ban k 
 
 V. Missouri Valley L. Ins. Co., 66-617. 
 
 2. To constitute a person an agent, there 
 must be consent on the part of the agent, 
 either expressed or by words, or inferable 
 from something done: First Nat. Bank r. 
 Free, 67-11. 
 
 3. Loan ag'ent is the agent of the bor- 
 rower: The party from whom an application 
 is made to a loan and trust company for the 
 purpose of effecting a loan, is the agent of 
 the borrower and not of the company. No- 
 tice to such an agent would not therefore be 
 
AGENCY, I, a. 
 
 13 
 
 Appointment and revocation. 
 
 notice to the company: Thomas v. Desney, 
 57-58. 
 
 4. Messcnarer taking inoncy to creditor: 
 The fact that a creditor accepts money sent 
 him by a debtor through a« messenger does 
 not constitute the messenger the agent of the 
 creditor in such sense that, if such messenger 
 subsequently receive money from tlie debtor 
 and fail to pay it over, the loss will be that 
 of the creditor : Fisher v. Schiller Lodge, 50- 
 459. 
 
 o. Finding customer: Where a dealer in 
 agricultural implements took orders or prop- 
 ositions, as he had opportunity, for the sale of 
 a particular thresher, and forwarded them to 
 the manufacturer, who either accepted or 
 rejected them, and, if he accepted, shipped 
 the machine to such dealer, who dehvered to 
 the purchaser and accepted the payment, for- 
 warding the money or notes received to the 
 manufacturer, held, that the dealer was, as to 
 sales effected, the agent of the manufacturer ; 
 and that any suit growing out of such a sale 
 was a suit growing out of or connected with 
 the business of such agency : Milligan v, 
 Davis, 49-126. 
 
 6. Declarations of the agent to prove 
 agency : To bind a person by the representa- 
 tions of one claiming to be his agent, such 
 agency must be shown otherwise than by the 
 agent's own declarations. One may prove 
 his agency by his own oath, if the avithority 
 is conferred by parol, or it may be established 
 in many ways, as by the declarations or 
 admissions of the principal ; but it cannot be 
 by the declarations alone of the person as- 
 suming thus to act: Moffitt v. Cressler, 8- 
 133. 
 
 7. Acts and declarations of the agent ai'e 
 not admissible for the purpose of proving the 
 agency : Olanton v. Des Moines, O. & S. R. 
 Co., 67-350. 
 
 8. The extent of the power and authority 
 of an agent cannot be established by declara- 
 tions of the supposed agent : Bigler v. Toy, 
 68-687. 
 
 J». Before the declarations of an alleged 
 agent can be admitted in evidence against 
 his principal, some evidence that he was 
 authorized to act for his principal in relation 
 to the matter in hand must be introduced : 
 Drake v. Chicago, R. I. & P. JR. Co., 70- 
 
 10. For the purpose of supporting a con- 
 tract made by an agent, the fact of agency 
 cannot be proven by the admissions of the 
 person claiming to act as agent: Whites- 
 can-er v. Bonney, 9-480. 
 
 11. The authority of an agent cannot be 
 proved by the agent's declarations alone; 
 they are not admissible for that purpose: 
 Oraul V. Strutzel, 53-712; Renwich v. Ban- 
 croft, 56-527. 
 
 Further as to admissibility of declarations 
 of agent, see Evidence, g§ 240-254. 
 
 Further as to how far declarations of the 
 agent are binding upon the principal, see 
 infra. III, c. 
 
 12. A party cannot be bound by the claim 
 of another that he is acting as his agent, 
 without knowledge that he was so claiming. 
 Nor will the understanding in the com- 
 munity as to the fact cf agency be conclusive 
 as against the party sought to te held as 
 principal : Milligan v. Davis, 49-126. 
 
 13. Admissible evidence to prove agency: 
 Where a party attempts to escape liability for 
 the non-delivery of goods by proving deliv- 
 ery to an agent, he is not limited to showing 
 that he had sufficient reason to believe the 
 existence of the agency, but may show cir- 
 cumstances tending to prove the agency of 
 which he had no knowledge at the time. It 
 is the fact of agency, and not the knowl- 
 edge of that fact, which is in controversy: 
 Angle v. Mississippi & M. R. Co., 9-487. 
 
 14. While the authority of a supposed 
 agent cannot be established by his own 
 declarations, yet if the agency has been 
 otherwise proved, then the declarations of 
 the agent, within the scope of his authority, 
 which constitute a part of the transaction or 
 res gestae, are admissible : Winch v. Baldwin, 
 68-764. 
 
 15. Several instances of employment as 
 a special agent would not be sufficient to 
 Ijrove a general agency ; Ibid. 
 
 16. Authority to do one act: Authority 
 given at one time to an agent engaged in 
 making repairs on defendant's house is not 
 sufficient to authorize one to presume, a year 
 afterwards, that the authority still continues : 
 Green v. Hinkley, 52-633. 
 
 17. Authority to bind by note, how 
 sliown: The authority to make, indorse, re- 
 new or accept negotiable paper may be in- 
 
14 
 
 AGENCY, I, a, b. 
 
 Appointment and revocation. 
 
 fen-ed from the coui'se of business, and from 
 the fact that similar transactions have been 
 repeatedly recognized by the principal as 
 done by his authority ; the general rule being 
 that the principal is bound by actually 
 - authorizing the act, or by leading those with 
 whom the agent actually dealt in his behalf 
 to believe, as reasonable men, that authority 
 had been actually given, or by subsequent 
 ratification: Vlliiting v. Western Stage Co., 
 20-554. 
 
 18. While, the fact of agency cannot be 
 inferred from the acts of the agent alone, 
 yet, as bearing upon that question, such acts 
 ai-e proper to be considered in connection 
 with his testimoijy and other facts : Hall v. 
 ^tna Mfg. Co., 30-315. 
 
 19. Present authority not inferable 
 from former: The declarations or admissions 
 of an agent bind the principal only when 
 made during the continuance of the agency 
 in regard to a transaction then pending. An 
 authority to make an admission is not neces- 
 sarily to be implied from an authority previ- 
 ously given in respect to the thing to which 
 the admission relates: Osgood v. Bringolf, 
 33-265. 
 
 20. former approvals : Under the facts of 
 a pai'ticular case, held, that an agent for the 
 sale of land was not given authority to sell, 
 except on the approval of the contract by the 
 principal. In such case the fact that former 
 sales have been approved as made, would not 
 give rise to authority to make further sales 
 without approval : Burlington, C. S. & N. 
 It. Co. V. Sherwood, 63-309. 
 
 21. Agency distingnislied from loan: 
 Money was furnished to a party with which 
 to purchase grain, and the understanding 
 was, that his compensation should be a share 
 of the profits remaining, after paying back 
 the sum furnished, with eight per cent, inter- 
 est. Held, not to be a loan, but a contract 
 of agency, and that the grain, when pur- 
 chased, belonged to the person who fur- 
 nished the money: Van Sandt v. Dows, 
 63-594. 
 
 22. Factof agency is for the jury: "Where 
 it is sought to bind a party by the acts of an- 
 other as his agent, the fact of the agency, if 
 controverted, should be submitted to and 
 passed upon by the jury : Patton v. Bond, 
 50-508. 
 
 b. Revocation in general and tlie effect 
 thereof. 
 
 23. Change of the firm name dees net 
 annul an agencjf which was confei-red upon 
 the same persons under another name : BU- 
 lingsley v. Dawson, 37-210. 
 
 24. Power coupled with an interest: The 
 power of sale conferred upon a creditor by a 
 trust deed is a power coupled with an inter- 
 est, which is not revoked by the death of the 
 trustee, but may be executed by his adminis- 
 trator : Collins v. Hopkins, 7-463. 
 
 25. An agency is revocable at the will of 
 the principal, unless the power conferred 
 upon the agent be given for a valuable con- 
 sideration, or as a security, or is coupled 
 with an interest. Whei^ the principal ha4 
 given to the agent authority to raise a dona- 
 tion for a particular purpose, with an agree- 
 ment tbat the agent should be entitled to a cer- 
 tain pel- cent, of the subscriptions as compen- 
 sation, lield, that the agency was not coupled 
 with an interest and might be revoked at 
 pleasure: Smith v. Cedar Falls & M. R. Co., 
 30-244. 
 
 26. Presumption as to conliniiance: 
 Whether the agent's authority is general, or 
 special and unlimited as to time, the pre- 
 sumption as to those previously dealing 
 with him is, that it continues until there is 
 notice of revocation: Whiting v. Western 
 Stage Co., 20-554. 
 
 2 7. Notice of revocation : A revocation of 
 the power of attorney by act of the principal 
 does not take effect until notice of the revoca- 
 tion is given ; but dissolution of such power 
 by act of law, as by the death of the principal, 
 takes place instantly upon such death, and 
 the estate vests in the heirs, or devisees, or 
 creditors, and their rights cannot be impaired 
 by an act of the agent after the principal's 
 death : Vanee v. Anderson, 39-426. 
 
 28. Completion of agency: An agency 
 terminated by the completion of the business 
 for which it was organized is completed by 
 operation of law. Where an agent for the 
 purchase of land turned over to the princi- 
 pal the contract for the conveyance, and re- 
 ceived his fees, held, that his agency termi- 
 nated, and was not revived by the fact that 
 the vendor sent to him the note for the bal- 
 ance of the purchase money for collection. 
 
AGENCY, I, b, c; 11. 
 
 15 
 
 Revocation . — Authority. 
 
 Such an agent is not therefore estopped from 
 aoquii'ing a tax title to the premises after 
 transferring the contract for the same to the 
 principal : Moore v. Stone, 40-259. 
 
 29. Power to bind after reTOcation : The 
 doctrine that a discharged agent may, under 
 some circumstances, bind his former princi- 
 pal to the extent of his former authority, has 
 no application beyond the claims the agent 
 himself has upon the property, or rights 
 formerly intrusted to him: Baudotdne v. 
 Grimes, 64-370. 
 
 30. Kevocationamonntin^ to a breach of 
 contract: The principal cannot violate a 
 written contract of agency before there has 
 been a breach on the part of the agent. If 
 an agent undertakes to sell within a limited 
 time, and at certain rates, and for a compen- 
 sation agreed upon, and makes reasonable 
 endeavors to effect a sale, the owner of the 
 property cannot, during the time mentioned, 
 revoke the authority confen-ed, or sell the 
 property himself, without making to the 
 agent compensation for the services rendered. 
 If it is shown that by an act of the owner a 
 sale, which the agent might have made, was 
 hindered or prevented by the owner, the 
 agent will be entitled to all the compensa- 
 tion that such sale, if made, would have en- 
 titled him to receive : Attix v. Pelan, .5-336. 
 
 c. Revocation hy death of principal. 
 
 31. Power of attorney to convey: An 
 
 agency to sell and convey land in the name 
 of the principal, not coupled with an in- 
 terest, is revoked by the death of the prin- 
 cipal, and a sale and conveyance made there- 
 after by the agent, although without notice 
 of such death, is void: Leivis v. Kerr, 17- 
 73 ; Vance v. Anderson, 39-426. 
 
 32. Agency intended to continne after 
 death: An agency intended to continue 
 after the principal's death, while it may be 
 valid as far as executed during his life-time, 
 is discontinued after the death of the prin- 
 cipal, and the agent thereafter will become 
 a mere custodian of the property remaining 
 in his hands, without any rights thereto 
 against a duly appointed administrator: 
 Crispin v. Winkleman, 57-533. 
 
 33. Eifect on collateral securities held 
 by agent: Where negotiable notes were 
 
 I 
 
 turned over to an agent to be held as col- 
 lateral security for the payment of notes 
 which such agent held for collection against 
 the principal in behalf of other parties, held, 
 that the death of the original owner did not 
 terminate the agency so as to entitle his ad- 
 ministrator to recover from such agent the 
 proceeds of the notes, for the reason that 
 the notes in the hands of saph agent were 
 thereby in the possession of the parties for 
 whose benefit they were held: Bennett i: 
 Stoddard, 58-654. 
 
 34. A collection agent cannot enforce the 
 collection of his principal's notes after the 
 death of the principal, and is not liable for 
 failure to collect such notes where the 
 makers became insolvent after the principal's 
 death. Darr v. Darr, 59-81. 
 
 II. Extent of authority. 
 
 a. In general. 
 
 35. Acts done in the scope of authority: 
 
 A principal is only liable for the acts of the 
 agent done in the scope of his authority, and 
 not for other acts of the same person, done 
 as the agent of another: Jones v. Turck, 
 33-246. 
 
 36. In order to bind the principal it is 
 necessary that the contract of the agent shall 
 be within the scope of his authority as agent ; 
 it is not enough that the conti-act be made in 
 regard to the business of the agency : iJie;i- 
 mond V. Oreeley, 38-666. 
 
 37. General authority: Though as between 
 the principal and agent the powers of the 
 agent may be limited, it frequently occurs 
 that his powers are not limited, when the 
 rights of third persons intervene, if the princi- 
 pal has so acted as to induce third persons to 
 act upon the assumption of more extended or 
 unlimited powers : Keenan v. Missouri State 
 Mut. Ins. Co., 13-126. 
 
 38. Private instructions: The authority of 
 a general agent may be regarded by the pub- 
 lic as measured by the usual extent of his 
 general employment. So far as the public is 
 concerned, his authority cannot be limited by 
 private instructions as to the manner of exe- 
 cuting his agency : Davenport v. Peoria M. 
 & F. Ins. Co., 17-276; Bartkolometv v. Mer^ 
 chants? Ins. Co., 25-507. 
 
ir. 
 
 AGENCY, n, a. 
 
 Extent of authority. 
 
 3J>. General business authority ; negoti- 
 able paper: The general authority of an 
 agent to transact business will not be held to 
 ronfer the power to make the principal a 
 paj-ty to negotiable paper. And the power 
 to do some things with reference to such 
 paper cannot be enlarged by construction to 
 authorize the agent to do other, though some- 
 what similar, things: Whiting v. Western 
 Stage Co., 30-554. 
 
 40. But the authority to make, indorse, 
 renew or accept negotiable paper may be in- 
 ferred from the course of business, and from 
 the fact that similar transactions have been 
 repeatedly recognized by the principal as 
 done by his authority, the general rule being 
 that the principal is bound by actually 
 authorizing the act, or by leading those with 
 whom the agent dealt in his behalf to believe, 
 as reasonable men, that authority had been 
 actuaUy given, or by subsequent ratification : 
 Ibid. 
 
 41. General scope of business: The doc- 
 trine which protects third persons, who have 
 been injured by an agent's acts in excess of 
 his authority, does not apply, unless the 
 agent is acting in the business intrusted to 
 him, and substantially according to the in- 
 structions of his principal : Mathews v. GilUss, 
 1-342. 
 
 42. An agent authorized to make pur- 
 chases for his principal will bind his principal 
 to purchases of the general kind and class 
 authorized, unless the person dealing with 
 the agent knows that the agent is violating 
 special instructions : Adams v. Boies, 24^96. 
 
 43. The principal is bound by the un- 
 authorized acts or engagements of a general 
 agent only when they are entered into within 
 the apparent scope of his employment: 
 Hakes v. Myrich, 69-189. 
 
 44. Power to warrant: Where an agent 
 has general powers for the sale and warranty 
 of machines, his authority cannot be re- 
 stricted to the making of warranties in 
 writing, unless it is shown that the parties 
 with whom he dealt had notice of such re- 
 striction : Murray v. Brooks, 41-45. 
 
 45. Establislied agency; presumption: 
 Where a general agency is established, the 
 person contracting therewith will not be re- 
 quired to prove that the agent intended to 
 bind his principal by a transaction within 
 
 the scope of his authority : Brett v. Bassett, 
 63-340. 
 
 46. Presumption from t!ie class of 
 agency: If a party has but one class of 
 agents, the appointment of a person as agent 
 may be regarded as conferring the powers 
 usually exercised. If there are different 
 classes of agents, with distinct powers, the 
 mere appointment of a person as agent wiU 
 not couf er on him any greater powers than 
 those of the class to which he is shown to 
 belong: Strickland v. Council Bluffs Ins. Co., 
 66-466. 
 
 47. Custom ; wlien admitted to show 
 authority: The custom of other insurance 
 companies with reference to appointment of 
 agents is not admissible to show the extent 
 of the power granted to an agent by his com- 
 pany, where it is not shown that the party 
 dealing with the agent had knowledge of 
 such custom, or that the custom was so 
 general that knowledge of it must be pre- 
 sumed: Bradford V. Homestead F. Ins. Co., 
 54-598. 
 
 48. Bank as collecting agent: One who 
 deposits with a bank for collection negotiable 
 paper, payable at a distant place, is charge- 
 able with the custom of banks to intrust it 
 to other banks for collection at the place 
 where payment is to be made. The bank re- 
 ceiving the paper becomes responsible to the 
 principal as agent, with authority to employ 
 another bank to collect it, and is not liable 
 for the negligence of its correspondent in 
 making such collection, if it has used reason- 
 able care in the selection of the correspond- 
 ent: Ouelich V. National State Bank, 56- 
 434. 
 
 49. Custom to sell on credit: A party re- 
 lying upon authority of an agent to sell on 
 credit, based upon commercial custom in a 
 particular business, has the burden of show- 
 ing such custom and proving that the credit 
 
 " given was not unreasonable : Payne v. Potter, 
 9-549. 
 
 50. General custom: One who deals with 
 an agent in a manner different from the gen- 
 eral custom of such agent has the duty upon 
 him to ascertain the extent of the agent's au- 
 thority in such dealing: Tidriek v. Rice, 
 13-214. 
 
 51. Evidence of custom will not be admit- 
 ted to vary the express terms of the authority 
 
AGENCY, II, a, h. 
 
 17 
 
 Authority. — Powers. 
 
 given tlie agent: Wanless v. McCandless, 
 38-20. 
 
 52. Authority of special agent: Where 
 an agent acts under express or special au- 
 thority, whetlier written or verbal, the party 
 dealing with him is bound to know what the 
 autliority of the agent is, and its legal effect ; 
 and if the agent exceed the boundary of his 
 legal power, the act as concerning his princi- 
 pal is void : Payne v. Potter, 9-549. 
 
 53. It is incumbent on the persons dealing 
 with a special agent to ascertain the scope 
 and extent of his powers : Roberts v. Rumley, 
 58-301. 
 
 54. The exercise of power by a, special 
 agent is restricted to limits prescribed by the 
 principal ; and one dealing with such agent, 
 with knowledge of a limitation on his power, 
 cannot enforce a contract made by him for 
 his principal which is beyond such limita- 
 tion : Siebold v. Davis, 67-560. 
 
 55. The character of an agency is a fjnes- 
 tiou of fact for the jury, and even upon the 
 evidence submitted to them, it is not proper 
 for the court to instruct that, if the agent is 
 not shown to be a limited agent, the jury 
 should find that he was a general agent: 
 Dickinson Countjf v. Mississippi Valley Ins. 
 Co., 41-286. 
 
 56. Knowledge of contracting party; 
 Where the extent of the agent's authority is 
 in question, it is error to instruct the jury in 
 such a way as to make the knowledge on the 
 part of the contracting party as to the agent's 
 authority the real point in issue : Ibid. 
 
 57. Power of attorney; defective execu- 
 tion: An agreement by an attorney for a 
 principal, inoperative at law for want of a 
 formal execution in the name of the princi- 
 pal, is binding in equity, if the attorney had 
 authority. But not so if the agreement was 
 never executed formally or otherwise, in the 
 principal's name, or in the name of any per- 
 son for him: Wilkinson V. Getty, 13-157. 
 
 58. Particular circumstances: Evidence 
 in a particular case held not sufficient to 
 show express or implied authority to bind 
 the supposed principal to a conti'act en- 
 tered into by the alleged agent : Cobb v. Hall, 
 49-366. 
 
 59. Acts of agent under particular circum- 
 stances found to be beyond scope of author- 
 ity : Taylor v. White, 44-295. 
 
 Vol. 1 — 2 
 
 b. Powers of agents construed. 
 
 (50. Power of attorney: The rule that the 
 terms of a power of attorney are to be con- 
 strued strictly against the principal is not 
 designed to enlarge or extend the power con- 
 ferred, nor to change the constraction of 
 such power : Mathews v. Oilliss, 1-242. 
 
 61. Sale and exchange: Authority given 
 to an agent to sell does not authorize him to 
 exchange for other property : Haas v. Damon, 
 9-589 ; Hampton v. Moorhead, 62-91. 
 
 62. If such exchange is shown, it amounts 
 to a proof of conversion without any proof 
 of demand but the bringing of suit : Haas v. 
 Damon, 9-589. 
 
 63. Sale on credit: Authority to sell does 
 not, unless by custom in a, particular busi- 
 ness, authorize a sale on credit: Payne v. 
 Potter, 9-549. 
 
 64. Where no authority • for sale upon 
 credit has been given by the principal, it will 
 be sufficient excuse for a factor in failing to 
 accept a proposition that the offer was for 
 a sale upon credit: Durant i'. Fish, 40-559. 
 . 65. An instrument authorizing an agent 
 
 to sell all the land of his principal at a cer- 
 tain price per acre, a part to be paid at once, 
 the i-est on time, does not bind the principal, 
 if .the agent requires no part of the price to 
 be paid at once: MatJieiL'S v. Gilliss, 1-242. 
 
 66. Eeceiying proceeds of sale: The au- 
 thority to make a contract for the sale of 
 lands will authorize an agent to receive so 
 much of the purchase money paid in hand as 
 the terms of the sale require : Alexander v. 
 Jones, 64-207. 
 
 67. Authority to sell property and take a 
 note in payment would not of itself include 
 authority to receive payment after the note 
 has been delivered to the principal. Pay- 
 ment of the note to the agent who accepted 
 it would not of itself bind the principal to 
 deliver it up : Draper v. Rice, 56-114. 
 
 68. Where an agent was authorized to 
 sell land upon the payment of one-third of 
 the purchase price in cash, held, that a con- 
 tract of sale contemplating a payment of 
 the cash portion of the purchase price at a 
 future day was not within the authority of 
 the agent, and was not binding upon the 
 principal: Wanless v. McCandless, 38-20. 
 
 69. Also Jield, in such case, that an offer 
 
18 
 
 AGENCY, 11, b. 
 
 Powers construed. 
 
 by the agent to advance the money did not 
 validate the sale : Hid. 
 
 70. In cases like the above, evidence of the 
 custom that the cash purchase money should 
 not be paid until the tender of the deed will 
 not be admitted to vary the express terms of 
 the agency : Ibid, 
 
 71. Beceiring' payment: If an agent or 
 attorney holds a note for collection, he has 
 no right to receive anything in payment but 
 money, unless especially authorized to do so : 
 Drain v. Doggett, 41-682. 
 
 72. Payment to a creditor's aarcnt: If 
 one who owes money on a written security 
 pays to or settles with another as agent of 
 his creditor, he must, at his peril, either see 
 that such person is in possession of the secu- 
 rity, or has special authority, or has been 
 represented by the creditor to have such 
 authority, although not in possession of the 
 security : Tappan v. Morseman, 18-499. 
 
 73. Assignment by an attorney : It is in- 
 cumbent upon the party relying upon an as- 
 signment, purporting to be executed by an 
 attorney, to prove the authority of such at- 
 torney. As to the form of executing assign- 
 ment by attorney, it is sufficient if he sign 
 his name, adding the words "Attorney for 
 :" Ford v. Independent Dist., 46-394. 
 
 74. Waiver of stipulations: The stipula- 
 tions of a contract cannot be waived by an 
 agent who has no power or authority to 
 waive them. Statements of such agent as 
 to matters outside of the line of his employ- 
 ment will not be binding upon the principal : 
 Davis V. Robinson, 67-355. 
 
 75. Signing name: In a particular case, 
 held, that the agent or clerk of a partnership 
 had not sufficient authority to bind the firm 
 by signature of its name to a promissory 
 note : Miller v. House, 67-737. 
 
 76. Sale of land: Where a land-owner 
 gave an agent the terms upon which he 
 would sell it, but refused to put the land ex- 
 clusively into his hands, reserving the right 
 to sell through other parties, if satisfactory 
 IDropositious should be made, held, that a 
 contract of sale made by such agent, upon 
 the specified terms, was binding upon the 
 principal, there being no intervening sale to 
 any other party : Ho^Dwood v. Corbin, 63-218. 
 
 77. To release mortgage: An agent hav- 
 ing authority to lease property, to contract 
 
 for the erection of buildings thereon, etc., 
 and negotiate for the sale of the property, 
 held not to have authority after such sale to 
 release a mortgage given to secure the pur- 
 chase money, nor to accept other property in 
 part payment of such- purchase money : 
 Hakes v. Myrick, 69-189, 
 
 78. An agent having authority to collect 
 is not authorized to release a mortgage secur- 
 ing the indebtedness upon the substitution of 
 a new note for the one secured, nor to accept 
 property instead of money in payment : Ibid. 
 
 79. To mannfacture is not to sell: The 
 authority to sell cannot be implied from tlie 
 general authority to purchase hides and 
 superintend the manufacture of same into 
 leather : Holbrook v. Oberne, 56-324. 
 
 80. To sign checks is not to borrow: An 
 authority given to an agent to sign checks on 
 the bank for stock purchased would not of 
 itself authorize a finding that the borrowing 
 of money on credit _was an act within the 
 scope of the agency: Mordhurst v. Boies. 
 34-99. 
 
 81. To loan is not to collect: The author- 
 ity to collect money cannot be inferred from 
 the power to make a loan and to receive 
 securities therefor : Austin v. Thorp, 30-376. 
 
 82. Power to sue: The power of an agent 
 to contract in the name of his principal does 
 not include, by implication, the power to 
 bring an action upon such contract ; Mark- 
 h:im V. Burlington Ins. Co., 69-515. 
 
 83. To invest is not to sell: Authority 
 given to an agent to invest money and look 
 after the business generally, would not au- 
 thorize the agent to sell the principal's prop- 
 erty, even such as might be acquired as the 
 result of the investment: Smith v. Stephen- 
 son, 45-645. 
 
 84. To use is not to sell: The fact that a 
 woman, the owner of a team, allowed her 
 son to use and to control the same, held not to 
 raise any presumption of the right or author- 
 ity of the son to sell the same without her 
 consent: Hinkson v. Morrison, 47-167. 
 
 85. To sell is not to guaranty: An agent 
 authorized to sell notes is not thereby author- 
 ized to guaranty them. All that will be im- 
 plied from an authority to sell and dispose of 
 notes is authority to sell in the ordinary and 
 usual manner, that is, by the ordinary in- 
 dorsement: Qraul V. Strutsxl, 53-713. 
 
AGENCY, II, b, c. 
 
 19 
 
 Powers construed. — Delegation of authority. 
 
 86. To waive incidents of breach of war- 
 ranty: An agent having authority to make 
 a sale and give a vcai'ranty, in wliicli it is 
 provided that the article is to be returned 
 vv-ithin a specified time, or the vifarranty will 
 be deemed fulfilled, will bind his principal 
 to the warranty if the purchaser offers to re- 
 turn the article within the specified time, 
 but the agent waives the return strictly 
 within the time: Pitsinowsky v. Beardsley, 
 37-9. 
 
 87. Authority to exceed printed war- 
 ranty : Where machines are sold by an agent 
 under a printed wan-anty, and there has been 
 no breach of the terms of the warranty, the 
 presumption is against the authority of the 
 agent to extend the terms of the warranty. 
 The presumption is that the agent's power to 
 sell is to be strictly limited by the published 
 terms of the sale given to each purchaser: 
 Richmond v. Greeley, 38-666. 
 
 In general, as to power of agent to warrant, 
 see SAtES, IV. 
 
 88. Joint action of two or more agents : 
 An authority conferred upon two or more 
 agents can be performed by them only jointly 
 unless a contrai-y intent appears. But if 
 the instrument conferring the power shows 
 an intention that a part of the agents may 
 execute it, such execution is sufficient. In a 
 particulai- case, where agents were given 
 discretionary power in completing a con- 
 tract, held, that they could transfer the con- 
 tract under their power without assignment, 
 and as it was necessary that the contract 
 should be stamped to give it vahdity, it was 
 presumed that the power to affix and cancel 
 stamps was conferred : Cedar Rapids & St. 
 P. R. Co. V. Stewart, 25-115. 
 
 89. Where power is inti-usted to two or 
 more persons, without the express provision 
 that either one of them may exercise it, it 
 can be exercised only by the concurrent ac- 
 tion of at least a majority: Sioux City v. 
 Weave, 59-95. 
 
 90. Power of physician of railroad: 
 Where it was sought to recover from a rail- 
 road company a compensation for meals fur- 
 nished to nurses and the relatives of an 
 injured employee at the direction of the phy- 
 sician, held, that such recovery could not be 
 supported without evidence of express au- 
 thority of the physician to make such con- 
 
 tract: Bushnell v. Chicago & N. W. R. Co., 
 69-620. 
 
 Station agent: As to powers of station 
 agent to bind railroad, see Carriees, g§ 1-3. 
 
 c. Delegation of authority hy the agent. 
 
 91. Acts of snb-agent: As a rule, where 
 the employment of a sub-agent is necessary, 
 the agent, if he makes a fit and proper selec- 
 tion, is not responsible tor the default of 
 such sub-agent. But a factor or broker can- 
 not delegate his authority. The principal 
 may confer the power of delegation or sub- 
 stitution, and if that is shown, he fuust look 
 to the substitute : Loomisv. Simpson, 13-532. 
 
 92. It is not necessary that a sub-agent 
 should be known to his principal, or in any 
 way recognized by his principal, in order to 
 bind the latter. Authority is sometimes im- 
 plied, from the very nature of the duties and 
 powers committed to a general agent, to em- 
 ploy sub-agents, and when this is the case 
 the principal is bound by the acts of the 
 sub-agent: Gum v. Equitable Trust Co., 1 
 McCrary, 51. 
 
 93. Accountability for acts of sub-agent: 
 A sub-agent is accountable to his superior 
 agent when employed without the assent or 
 direction of the principal. But if employed 
 with the express or implied assent of the 
 principal, the superior agent will not be i-e- 
 sponsible for his acts: Giielich v. National 
 State Bank, 56-434. 
 
 94. Fellow-servant: Where it appeared 
 that a, railway company had a night clerk 
 at its station in addition to the regular agent, 
 held, that the agent was not responsible for 
 the acts of the night clerk as a sub-agent : 
 Robinson v. Illinois Cent. R. Co., 30-401. 
 
 95. Attorney engaging officer: Where an 
 attorney procures an officer to render services 
 for his client, the attorney is merely the agent 
 of the party requiring the services, and, his 
 agency being known, he cannot be held 
 liable in the absence of an express contract 
 to that effect : Doughty v. Paige, 48-483. 
 
 Bank collections: That a bank receiving 
 paper for collection is not liable for negli- 
 gence of correspondent to whom paper is 
 sent : See supra, % 48. 
 
 96. Purchaser procured by sub-agent: 
 Authority to sell real property at the agent's 
 
20 
 
 AGENCY, III, a. 
 
 Liability. — By contract. 
 
 own discretion as to the price and terms of 
 sale, authorizes the agent to employ a sub- 
 agent to procure a purchaser at reasonable 
 terms, and the principal will be bound by a 
 sale so made : JRenwick v. Bancroft, 56-537. 
 97. Attorney cannot delegate: An attor- 
 ney-at-law cannot delegate to another at- 
 torney, authority to act for the principal in 
 a matter confided to the care of the first at- 
 torney : Antrobus v. Sherman, 65-230. 
 
 III. Liability of peincipal and of 
 
 AQENT EESPECTIVELY. 
 
 . a. £y contract. 
 
 5)8. Principal alone bound: If the agent 
 has authority to make the contract, and does 
 so in writing, disclosing therein his principal, 
 and his own relation as agent, the principal 
 alone will be bound, unless the intention is 
 clearly expressed to bind the agent person- 
 ally, notwithstanding the aforesaid relation : 
 Baker %: Chambles, 4 G. Gr., 428; Harkins v. 
 Edwards, 1-426. 
 
 9y. The question of liability does not turn 
 generally upon the form of the signature, 
 but upon the fact whether the relation of 
 pi-incipal and agent is fairly disclosed upon 
 the face of the paper : Harkins v. Edwards, 
 1-426. 
 
 100. Aa:ency not presumed: The legal 
 presumption is, that where a party contracts, 
 he binds himself personally, unless it is shown 
 afiirmatively that he acted and promised for 
 a principal : Curts v'. Scales, 1-471. 
 
 101. Must act in the name of the prin- 
 cipal : A contract by an agent is not valid 
 against the principal, unless it appears that 
 the agent had either a general or special au- 
 thority to make such contract for the prin- 
 cipal, and that he made it in the name of the 
 principal: Lucas v. Barrett, 1 G. Gr., 510. 
 
 102. Agent bound: Where one having au- 
 thority as agent signs a contract or promise, 
 and his authority appears on the face of 
 the instrument, he is not personally liable ; 
 but, if it does not appear that he acted as 
 agent, or he had not authority, he renders 
 himself personally responsible. An executor 
 or administrator is personally responsible on 
 a note given by him in that capacity, as he 
 has no authority to bind the estate : Winter 
 V. Hite, 8-142. 
 
 103. Where one contracts in his own name 
 for the act of another, he becomes thereby 
 personally bound, unless it appears from the 
 contract itself that he did not intend to bind 
 himself personally. Therefore, where it ap- 
 peared that a party signed his name to a sub- 
 scription for stock in a corporation, adding 
 words indicating that it was to be paid for by 
 another, held, that he was pei-sonally liable 
 upon such subscription : Langford v. Ottumwa 
 Water Power Co., 59-283. 
 
 104. Pajraent to agent without knowl- 
 edge of agency: Where tbe purchaser of 
 property from an agent, without notice or 
 knowledge of the agency, allowed judgment 
 to be rendered against himself in garnishment 
 as debtor of such agent for the purchase 
 money unpaid, held, that he was not liable to 
 the princip.ll for the same debt in another 
 action: Eclipse Wind Mill Co. v. Thorson, 
 46-181. 
 
 105. Agent holding himself ont as prin- 
 cipal: A person dealing with an agent in re- 
 gard to personal property intrusted to him 
 by his principal, without knowledge that the 
 agent is not the real owner, but supposing 
 him to be such owner and the principal in 
 the ti-ansaction, will possess all the rights 
 that he would have acquired had the transac- 
 tion been with the real principal : Erickson 
 V. Bell, 53-62T. 
 
 106. Pretended principal: An agent, who 
 attempts without authority to make a con- 
 tract binding upon a principal, binds himself 
 thereby: Andrews v. Tedford, 37-314. 
 
 107. An agent contracting in behalf of a 
 principal having no legal existence renders 
 himself liable. So held in a case of contract, 
 entered into by defendants as executive 
 committee of an unincorporated association : 
 Lewis V. Tilton, 64^220. 
 
 108. Undisclosed principal; rights and 
 liabilities: A principal may be held liable 
 for money had and received on a bill of ex- 
 change drawn by his agent without disclos- 
 ing the principal: Thurston v. Mauro, 1 G. 
 Gr., 231. 
 
 109. The right of a party to maintain a 
 suit in equity against an unnamed principal, 
 when the agent acted within the scope of 
 his authority, seems to be well founded: 
 Davison v. Davenport Gas, etc., Co., 24- 
 419. 
 
AGENCY, III, a. 
 
 21 
 
 Liability. — By contract. 
 
 110. A contract by an agent in his own 
 name, which would not be binding on the 
 principal, may nevertheless be enforced by 
 the principal against the party contracted 
 with : Darling v. Noyes, 32-96. 
 
 111. It is not improper for an agent, in the 
 absence of instructions on that point, to act 
 without disclosing his agency, and the fact 
 that he does so will not release the principal 
 from responsibility to the agent himself for 
 the liability incurred in so acting : Nixon v. 
 Downey, 49-166. 
 
 112. The mere fact that the principal is 
 not disclosed by no means prevents him 
 from being bound by the contract, provided 
 it is understood that the agent is acting as 
 such and not as principal : Young v. Hart- 
 ford F. Ins. Co., 43-377. 
 
 113. Agent's signature: A person cannot 
 be rendered liable on a bill of exchange or 
 promissory note, unless his name or the style 
 of his fii-m is subscribed to some portion of 
 it as a party. Simply the signature of a por- 
 son acting as agent, with the word " agent " 
 added to such signature, will not render the 
 undisclosed principal liable thereon: Thurs- 
 ton V. Mauro, 1 G. Gr., 231. 
 
 114. Descriptive words; consideration: 
 A note given for a policy of insurance, not 
 appearing on its face to be other than the in- 
 dividual note of the makers, and signed with 
 individual names, to which are affixed the 
 words of official designation, "president," 
 ''secretary," " du-ector," etc., is personally 
 binding upon such makers as individuals, 
 even though it be shown that the policy was 
 issued to a school district, and that the mak- 
 ers were the officers of such district. The 
 fact that it has been given for such pur- 
 poses will not defeat it for want of con- 
 sideration: American Ins. Co. v. Stratton, 
 59-696. 
 
 115. Face of note showing offlcial ca- 
 pacity: Where the note shows upon its face 
 that it is executed in an official capacity, the 
 maker is not personally liable, although his 
 signature is not supplemented with his offi- 
 cial designation: Lyon v. Adamson, 7-509; 
 Harvey v. Irvine, 11-82. 
 
 116. A note in which the signers were de- 
 scribed as " committeemen for the erection of 
 a school-house in district," etc., but which 
 was signed simply with the ordinary names 
 
 of such officei's without the official designa- 
 tion, and did not purport to bind the district, 
 held binding upon the makers individually, 
 and not upon the corporation: Bayliss v. 
 Pearson, 15-279. 
 
 117. Signature in official capacity: 
 Where a note in wliich the obligatory words 
 were" we promise,'' was signed "for the 
 Dubuque Times Co., Ferd. S. Wiuslow, Treas- 
 urer," there being such a corporation in ex- 
 istence, capable of contracting and appointing 
 an agent, held, that the note was that of the 
 company and did not bind the treasurer indi- 
 vidually: Wheelockv. Winslow, 15-404. 
 
 118. So where a similar note was signed 
 "Ferd. S. Winslow, Treas. Dub. T. Co.," 
 held, that the case was one of those where 
 the agent disclosed his principal and pur- 
 ported to bind him only, and did not become 
 personally liable : Ibid. 
 
 119. Agent not bonnd : If the name of the 
 principal and the relation of agency be stated 
 in the writing, and the agent is authorized, 
 the principal alone is bound, unless the in- 
 tention is clearly expressed to bind the agent 
 personally : Harkins v. Edwards, 1-436. 
 
 120. Parol evidence to bind agent: Parol 
 evidence is not admissible to show that an 
 agent who signs in his representative capac- 
 ity so as to bind the principal intended 
 thereby to bind himself, although parol proof 
 may be admitted to show that the execution 
 of the instrument is without authority, and 
 hence not binding on the principal: Ibid. 
 
 121. Parol to vary the meaning of sig- 
 nature: The agent of an undisclosed princi- 
 pal cannot vary the meaning of his signature 
 to a written contract by parol evidence tend- 
 ing to show that it was understood he acted 
 only for an unnamed principal and was not 
 personaUy liable: Bryan v. Brazil, 52-350. 
 
 122. Where a person in executing a con- 
 tract describes himself as agent, without dis- 
 closing his principal, the contract becomes a 
 personal obligation of the maker and no 
 one else. So where a contract was signed by 
 defendants designating themselves as officers 
 of the " school board," but not purporting to 
 bind any school district, nor describing them- 
 selves as officers of any particular school 
 district, held, that parol evidence was not 
 admissible to show that the contract was in- 
 tended to be that of the school district of 
 
22 
 
 AGENCY, III, b. 
 
 Liability. — By conduct in generaJ. 
 
 which they were officer3 : Wing v. Olick, 56- 
 473. 
 
 123. Parol to cxitlaiii signature to order: 
 
 Parol evidence is admissible to explain that 
 the person who signed orders for the delivery 
 of goods was acting as the agent of another 
 party, to whom the goods were delivered: 
 Lyons V. Thompson, 16-63. 
 
 124. Parol to explain abbreviations af- 
 fixed to name: Where the maker of a note 
 affixes initials to his name, he may show by 
 parol evidence the meaning of the initials if 
 unintelligible. lie may thus show them to 
 mean that he signed the note as the president 
 of the corporation, in whose office the note 
 purported to be executed, and that the in- 
 strument is the obligation of such corpora- 
 tion: Lacy V. .Dubuque Liimber Co., 43-510. 
 
 125. JJote need not show agent's author- 
 ity ; In case of an indorsement by an agent 
 whose authority is conferred by parol or by 
 independent writing, it is not necessary to 
 show upon the face of the instrument how 
 the agent came by his authority : Bettis v. 
 Bristol, 56-41. 
 
 Attorney : As to individual liability of at- 
 torney when acting for his client, see Attok- 
 NETS, §§ 77-84. 
 
 b. ^y conduct i?i general. 
 
 126. Knowledge of agency: If one, act- 
 ing under direction of another, takes posses- 
 sion of property which he has no right to, he 
 will be liable to the owner of such property 
 in an action to recover it, unless the owner 
 has knowledge' that the wrongful act was 
 done by such person as the agent of another, 
 in which cass the owner must look to the 
 principal : Robertson v. Phillips, 3 G. Gr. , 220. 
 
 127. If a party deals with an agent know- 
 ing him to be such, but in form treats him as 
 a principal, and is defrauded by such agent, 
 he is not entitled to look to the principal to 
 make good the loss but to the agent simply : 
 Hiskey v. Williams, 40-499. 
 
 128. Fraud of agent: One who is induced 
 by the fraud of an agent to give a receipt in 
 full, when only part of the debt is paid, is not 
 estopped from asserting his claim against the 
 principal, by the fact that a settlement was 
 made between the principal and such agent, 
 based upon the receipt, in which the agent 
 
 was allowed the full amount of the receipt : 
 Nobler. Steamboat Nmihem Illinois, 23-109. 
 
 129. Where the agent is acting in the di- 
 rect line of his employment, his acts must be 
 considered as the acts of his principal. The 
 principal is liable for the act of his agent in 
 procuring a signature to a note made payable 
 at a different date from that represented to 
 the persons signing the note: Hopkins v. 
 Hawkeye Ins. Co., 57-303. 
 
 130. If the party dealing with the agent 
 suffers by reason of the fraud of the agent 
 in a transaction which has been ratiiied and 
 affirmed by the principal, the principal is 
 bound to make him compensation for the in- 
 jury sustaiped ; but, in order to recover from 
 the principal, it must be shown that the 
 party dealing with the agent was injured by 
 reason of the fraud: Mitchell v. Donahey, 
 62-376. 
 
 131. An agent having authority to sell 
 with a certain warranty may yet bind the 
 principal to a different warranty, when it 
 appears that the agent made a contract un- 
 der such different warranty, and sent to the 
 principal an order for the goods, which were 
 shipped by the principal, who through the 
 fraud of the agent did not know of the change 
 in the warranty : Davis r. Danforth, 65-601. 
 
 1.32. Fraud upon agent: Where an agent 
 is deceived by the false entries of a public 
 officer, the law will treat the principal as the 
 one really deceived, and, in the absence of 
 any evidence to the contrary, will hold the 
 officer liable to the principal in damages: 
 Perkins v. Evans, 61-33. 
 
 133. Authorized acts: A person known to 
 be an agent of an incorporated society, and 
 receiving money in its behalf, is not person- 
 ally responsible for his authorized acts: 
 Emonds v. Tennehr, 60-93. 
 
 134. A mere agent should not be made 
 defendant to a suit against his principal, for 
 acts done by him in the scope of his author- 
 ity, unless the agent is charged with fraud: 
 Lijon V. Tevis, 8-79. 
 
 135. Demand by agent; replevin; au- 
 thority : In an action for the recovery of per- 
 sonal property, where demand was made by 
 plaintiff's agent for the property, held, that 
 such agent was not required to show hip 
 authority for making the demand, unless 
 demand was made upon him to do so, and 
 
AGENCY, III, c. 
 
 Declarations and admissions. 
 
 liis authority questioned by the defendant: 
 Barlow v. Brock, 35-308. 
 
 136. Discharge of principal: The fact 
 that in an action against the principal upon 
 a contract made in his name by an agent, the 
 principal is held not liable, for the reason 
 that the agent has not so executed the con- 
 tract as to bind the principal, does not show, 
 in an action against the agent who was not a 
 party to the former proceeding, that he is 
 liable in his individual capacity : Armstrong 
 V. Borland, 35-537. 
 
 137. Assumed principal liable by estop- 
 pel : Where a contract was made by an agent 
 without disclosing his agency, and afterwards 
 another party assumed to be the principal in 
 th6 transaction, and acted as such, held, that 
 such party could not afterwards be heard to 
 deny that he was so in fact: Flynn v. De.s 
 Moines & St. L. R. Co., 63-490. 
 
 138. Torts of agent: A master is not 
 liable for the torts of his servant committed 
 after the service for which he was employed 
 is ended, and he has received his discharge, 
 and this rule is not affected by the fact that 
 the tort w£S committed soon after the em- 
 ployment had ceased: Yates v. Squires, 
 19-36. 
 
 139. Where a, servant emplo3'ed to guard 
 a brewery, and for that purpose furnished 
 with a pistol, shot and killed a person who 
 liad been creating a disturbance therein, but 
 was at the time of the shooting outside the 
 building and retreating therefrom, held, that 
 the act was not in the line of the servant's 
 duty, and the master was not responsible: 
 Golden v. Newbrand, 53-59. 
 
 c. Declarations and admissions j res 
 gestce. 
 
 140. Admissions or declarations: The 
 
 admissions of an agent are not receivable in 
 evidence against his principal, unless they 
 constitute a part of the res gestae : Verry i\ 
 Burlington, C. R. cfc M. R. Co., 47-549: 
 Treadway v. Sioux City & St. P. R. Co., 
 40-526. 
 
 141. Declarations of an agent not made at 
 the time of a transaction, nor In relation to 
 it, are not admissible as evidence against the 
 principal; Lucas v. Barrett, 1 G. Gr., 510. 
 
 142. Declarations of a conveyancer, em- 
 
 ployed only for that purpose, are not bind- 
 ing upon the party employing him: Hurd 
 V. Gallaher, 14-394. 
 
 143. Declarations of a railway engineer, 
 made after the happening of an accident 
 which it was claimed caused an injury, as to 
 such accident, held not binding upon the 
 I)rincipal, although he was still in the employ 
 of the principal : Treadway v, Sioux City & 
 St. P. R. Co., 40-536. 
 
 144. In order that the principal shall be 
 bound by statements and representations cf 
 his agent, they must be made while he is en- 
 gaged in the business of the agency and must 
 relate to that business: Hakes v. Myrick, 
 69-189. 
 
 Further as to how far acts and declarations 
 of agent are admissible against the principal 
 and how far they are part of the res gestae, 
 See Evidence, §§ 340-254. 
 
 145. A declaration in regard to a charge 
 being excessive, made by a person author- 
 ized to collect such charge, is proper to be 
 shown in evidence in connection with the in- 
 quiry whether or not the payment was vol- 
 untary : Fuller v. Chicago & N. W. R. Co. 
 31-187. 
 
 146. Within scope of authority: An 
 ajent will not bind his principal by repre- 
 sentations made in a matter not within the 
 scope of his authority: State v. Haskell 
 20-376. 
 
 147. Declarations of an agent, authorized 
 to receive a bond from one upon whom an 
 agency is being conferred, and shown to be 
 a part of that act, will be received in evi- 
 dence as against the principal', notwithstand- 
 ing any special limitations upon the author- 
 ity of such agent, not brought to the knowl- 
 edge of the party dealin'g with him : Howe 
 Machine Co. v. Snow, 33-433. 
 
 1 48. Where it appeared that a railway su- 
 perintendent had charge of the operation and 
 repairing of the road, held, that a letter by 
 him with reference to a cattle-guard was not 
 within the scope of his authority, and did not 
 constitute an admission binding upon the 
 company: Livingston v. loiva Midland R. 
 Co., 85-555. 
 
 149. The declarations of one of defendant's 
 car repairers as to his knowledge of defects in 
 such car, made while he was standing by, 
 after the occurrence of the accident rraulting 
 
24 
 
 AGENCY, III, c, d. 
 
 Declarations and admissions.— Notice. 
 
 from such defect, and while not engaged in 
 the performance of any duty for the defend- 
 ant, held not to ho declarations made in the 
 line of his duty, and in relation to matters 
 under his chai-ge, in such sense as to be bind- 
 ing upon defendant as showing knowledge by 
 it of the defects causing the injury : Fen-?/ v. 
 Burlington, C. R. & M. R. Co., 47-549. 
 
 150. Where an agent acted only as a mes- 
 senger of insured to procure policies of insur- 
 ance, which were already contracted and 
 paid for, his representations that the prop- 
 erty was not occupied were held not to be 
 binding, and that something more than the 
 representations of the supposed agent were 
 necessary to establish his authority : Williams 
 V. Niagara F. Ins. Co., 50-561. 
 
 Further as to how far agent may bind in- 
 surance company by declarations, waivers, 
 etc., see Insurance. 
 
 151. Injury by railroad; agent's offer to 
 arbitrate : The tort of the principal cannot 
 be proven by evidence of the statements of 
 an agent in connection with his offer to arbi- 
 trate. The declarations of a road-master of a 
 railroad, while ofifering to submit to arbitra- 
 tion the liability of the company for injuries 
 to stock, are not admissible in evidence: 
 Mundhenk v. Central Iowa B. Co., 57-718. 
 
 152. Declaratious of ag'siit who was pres- 
 ent but took uo part: An agent who was 
 present at a negotiation but took no part 
 therein, and is intrusted with no duty in 
 reference thereto, cannot bind his principal 
 by any statement or representation which 
 he may afterwards make with reference to 
 such transaction : Wolf v. Des Moines & Ft. 
 D. B. Co., 64.-380. 
 
 153. While the business continues: The 
 declarations of an agent, to bind his principal, 
 must be made during the continuance of the 
 agency, and in regard to a transaction then 
 depending, et duin fervet opus: PeeJc v. Par- 
 clien, 53-46. 
 
 154. A party who authorizes another to 
 negotiate a sale for him, even though the 
 latter is not authorized to complete the sale, 
 is bound by representations made in the 
 course of such negotiations: Hornish v. 
 Peck, 53-157; Lindmeier r. Monahan, 64-24. 
 
 155. The agent's declarations are only 
 binding upon the principal when made 
 about a matter within the scope of his em- 
 
 ployment, and when actively engaged in tlie 
 duties of that employment:. Oirribel v. Salo- 
 mon, 54-389. 
 
 loti. The above doctrine applied in regard 
 to the statement of an agent that his princi- 
 pal was a member of a certain firm : Ibid. 
 
 157. Estoppel by declaratious of agent: 
 Where a note was left with an agent for col- 
 lection, and upon inquiry of such agent by 
 the surety, it was stated that the note had 
 been paid by the principal, held, that if the 
 surety had suffei-ed detriment by reason of 
 such representation, the principal would be 
 estopped thereby from recovery against the 
 surety : Thomburgh v. Madren, 33-380. 
 
 And see Estoppel, §§ 102-109. 
 
 d. Notice to, and Tcnowledge of 
 agent. 
 
 As to Notice in general, see that title. 
 
 158. Notice to an agent, while acting 
 within the sphere of his agency, is notice to 
 the principal : Warburton v. Lauman, 2 G. 
 Gr., 420; Jones v. Bamford, 21-317; Thomp- 
 son V. Merrill, 58-419. 
 
 159. Where the agent of a railway com- 
 pany received, accepted and paid for ties sold 
 to the company, after notice of a lien by ex- 
 press contract upon the ties for the purchase 
 money of the land from which they were 
 cut, held, that the company was affected by 
 such notice, and took the ties subject to the 
 obligation to pay the amount of the lien : 
 Slater v. Irwin, 38-261. 
 
 160. Knowledge of an agent of facts con- 
 nected with the negotiation in which he acts 
 for his principal is to be deemed the knowl- 
 edge of his principal : Huff v. Farwell, 67- 
 298. 
 
 161. Wliere a draft was sent to a bank for 
 collection, the knowledge acquired by the 
 bank in connection with the collection of 
 such paper, and afEecting its validity, was 
 held to be the knowledge of the principal ; 
 Delaware County Bank v. Buncombe, 48-488. 
 
 162. Notice to an agent, who is procuring 
 the conveyance of land held under a tax 
 title, that there was fraud in the tax sale, 
 rendering it void, is notice to the principal ; 
 Crumb v. Davis, 54-23. 
 
 163. Although knowledge of the agent is 
 regarded as the knowledge of the principal, 
 the rule must be confined to the particular 
 
AGENCY, IV, a. 
 
 25 
 
 Eights and liabilities. — Duties and liability. 
 
 transaction in which the agent is authorized 
 to act : Second Nat. Bank v. Ourren, 36-555. 
 
 164. Knowledge acquired by a notary 
 public, not in connection with his business as 
 an insurance agent nor while acting as such, 
 but merely incidentally while ti-ansacting 
 other business, and not sufficiently near to 
 the time of his acting as insurance agent to 
 justify any inference that he had the knowl- 
 edge acquired as notary public in mind and 
 acted upon it, will not impute notice to the in- 
 surance company of facts thus known to the 
 agent as notary public : Stennett v. Pennsyl- 
 vania F. Ins. Co., 68-674. 
 
 165. Where a land agent and abstracter, 
 through whom a loan was effected, and 
 mortgage taken as security, had knowledge 
 of a moi-tgage by a prior owner of the land, 
 which he had reason to believe was by mis- 
 take executed on other premises, instead of 
 the premises in question, held that his princi- 
 pal, the mortgagee, would be bound by such 
 prior mortgage, and it might be reformed as 
 against him : Sowler v. Day, 58-352. 
 
 160. Information gained before agency: 
 Information acquired by an agent long before 
 the existence of the agency, and not in con- 
 nection with any business of the principal, 
 and not retained by him at the time of trans- 
 acting the business of the principal, cannot 
 be considered notice to the principal : Yerger 
 V. Barz, 56-77. 
 
 IV. Rights and liabilities between 
 
 PKINCIPAL AND AGENT. 
 
 a. Duties and lialility of agent towards 
 principal. 
 
 167. Belong to principal: One who holds 
 a note in judgment in his own name as agenf 
 for another is not the owner of such prop- 
 erty, but the ownership is to be deemed to be 
 in the principal: Beaver Valley Bank v. 
 Cousins, 67-310. 
 
 168. Misrepresentation as to money re- 
 ceived : Where an agent, who has received 
 money or notes in payment for property 
 sold, re-invests the same in land at an over- 
 valuation, and leads the principal to suppose 
 that the land bought was in full exchange 
 for the value of the property sold, he will be 
 answerable for the amount actually received 
 
 from the sale, although he is not guilty of 
 any fraudulent representations: Briggs v. 
 Hartman, 10-63. 
 
 169. Demand upon agent for fnnds: Where 
 money has been properly received by an 
 agent for his principal, he is not liable in an 
 action until a demand has been made there- 
 for by his principal: Alexander v. Jones, 
 64-207. 
 
 170. Agent's mistake: If one who is an 
 agent for compensation, by mistake satisfies 
 a mortgage of his principal upon receipt of a 
 less sum than that actually due, he is liable 
 to his principal for the difference. In such 
 case the principal may recover from the 
 debtor the amount unpaid, but if the agent 
 pays it, he may have the same right to re- 
 cover it from the debtor : Kempker v. Roblyer, 
 39-374. 
 
 171. If the land owner justly relies upon 
 his agent to whom he has furnished money 
 to discharge an incumbrance, and the land is 
 lost without his knowledge and wholly by 
 the fault of the agent, the agent will be liable 
 for the full value of the land at the time it is 
 lost : Blood V. Wilkins, 43-565. 
 
 172. Negligence of factor: Under the cir- 
 cumstances of a particiilar case, a factor, who 
 sold his principal's grain for future dehvery, 
 was held guilty of negligence in not requir- 
 ing a margin to be advanced in accordance 
 with the custom of the board of trade where 
 the sale was made: Howe v. Sutherland, 
 39-484. 
 
 173. Principal's negligence: A principal 
 cannot recover, from his agent, money paid 
 out by the latter through mistake or over- 
 sight, if it appears tliat no loss would have 
 resulted to the principal if he had used due 
 care to protect himself: Sioux City & P. R. 
 Co. V. Walker, 49-273. 
 
 174. Yiolation of instructions: Where a 
 principal furnished his agent machines to be 
 sold on condition that payment was to be se- 
 cured by "undoubted paper," and that the 
 agent should take, along with the negotiable 
 paper, property statements, held, that it was 
 not enough for the agent to rely wholly upon 
 such statements, without regard to their 
 truth or falsity, and that the fact tliat the 
 agent did so was no defense to an action 
 brought against him by the principal to re- 
 cover the amount of a worthless note ac- 
 
26 
 
 AGENCY, IV, a, b. 
 
 Duties and liability. — Compensation. 
 
 cepted by the agent: Robinson Machine 
 Works V. Vorse, 52-207. 
 
 175. Care of goods: If a principal ships a 
 machine to his agent, who receives it in good 
 order, the agent will be liable for all damage 
 done to it, in the absence of reasonable 
 care on his part : Bartle v. Phelps, 39-498. 
 
 176. Loss without fault of agent: In ^n 
 action against an agent to recover a sum of 
 money alleged to have been received fi-om 
 the principal and to be still in the possession 
 of the agent unaccounted for, held, that it 
 was error to render judgment against the 
 agent for the whole amount, when it ap- 
 peared that a part of the money had been 
 expended upon the woi-k for which the 
 money was intrusted to the agent to expend, 
 although the result of such expenditure had 
 been destroyed without the fault of the 
 agent : loiva County v. Huston, 39-323. 
 
 177. Property set apart for principal: 
 If an agent in good faith sets apart a sum of 
 money or chose in action, and treats it as the 
 property of and belonging to his principal, 
 equity will regard it as the property of the 
 principal, so far as it concerns the parties, 
 or a third person who has not acquii-ed a 
 prior or paramount lien. In setting apart a 
 note as the property of the principal in this 
 manner, assignment by indorsement is not 
 necessary. Any act, whether in writing or 
 not, showing clearly that the title has passed 
 from the agent to the principal is sufiacient. 
 Hence the creditors of an agent cannot sub- 
 ject to the payment of his debts, property 
 which the agent has already equitably trans- 
 ferred to his principal, by procuring title to 
 be made directly in the principal's name, the 
 Ijrincipal having accepted the transaction, 
 although the agent may have acquired the 
 property in payment of an indebtedness due 
 himself: Perry v. Smith, 15-202. 
 
 178. Conversion and sale of principal's 
 property by agent: Where plaintiffs shipped 
 to an agent certain plows, to be sold on 
 commission, and the agent turned the same 
 over to the defendants in payment of his 
 own pre-existing indebtedness, held, that the 
 plaintiffs might replevin the property from 
 the defendants: Thompson v. Barnum, 49- 
 392. 
 
 179. Burden of proof: The allegation 
 that an agent whose duty, by virtue of his 
 
 employment, is to disburse or account for 
 funds received, did receive a certain sura, and 
 that a portion thereof has not been accounted 
 for or returned, is sulHcient to throw upon 
 the agent the burden of showing that the 
 amount was lost without fault or negligence 
 on his part. The burden of proof as to any 
 particular fact in such a case is upon one 
 pai-ty or the other, depending upon whether 
 it relates to the cause of action or to the de- 
 fense: Becket v. Iowa Improvement Co., 
 67-337. 
 
 180. Offsetting agent's claims: When a 
 principal seeks relief in a court of equity, 
 against an agent, for misappropriation of 
 money, etc., the latter is entitled to aflBrma- 
 tive relief, in the same sUit, relative to his 
 accounts and transactions as agent : Clark v. 
 Lee, 21-274. 
 
 Trust relation: That an attorney occu- 
 pies a trust relation towards his client, pre- 
 venting him from acquiring any adverse 
 rights, see Attorneys, §§ 63-74. 
 
 b. Coynpensation of the agent. 
 
 181. Compensation forfeited by fraud: 
 
 When the agent is guilty of an intentional 
 gross fraud upon the principal, in the trans- 
 action of his agency, and the principal is put 
 to the expense of litigation to secure his 
 rights, the agent forfeits his rights to com- 
 pensation for his services. But this does not 
 apply to money paid to third persons for their 
 services : Vennum, v. Gregory, 21-326. 
 
 182. Advances by a commission mer- 
 chant: Where advances are made by the 
 consignee, or commission merchant, the con- 
 signor cannot direct a sale at his pleasure. 
 In the absence of express agreement, the con- 
 signee has the right to sell at such time as he 
 sees proper, to the extent and in payment of 
 his advances : Butterfield v. Stephens, 59-596. 
 
 183. No lien without possession: The 
 lien of a factor upon goods consigned to him 
 under an agreement that he is to sell them 
 and apply the proceeds to repay previous ad- 
 vances to the consignor, does not attach to 
 specific property, until it comes either actu- 
 ally or constructively into his possession. 
 Therefore, where plaintiffs, as commission 
 merchants, had made advances to one V. on 
 the strength of consignments to be made by 
 
AGENCY, IV, b, c. 
 
 Compensation. — Good faitli. 
 
 him, and afterward, before the property in- 
 tended to be consigned was actually shipped, 
 and before the shipping receipts were for- 
 warded to plaintiffs, it was seized Viy de- 
 fendants under an attachment against V. as 
 his property, lield, that plaintiffs had no lien 
 which they could enforce against the defend- 
 ant's attachment: Hodges v. Kimball, 49- 
 577. 
 
 184. Commission for sale of laud: Facts 
 in a certain case held sufficient to support a 
 finding allowing plaintiff commission for the 
 sale of certain land of defendant : Dubois v. 
 Dubois, 54-216. 
 
 1S5. An agent or broker who is employed 
 to sell property, at a designated price and 
 upon stated terms, is entitled to his commis- 
 sion, when he has found a customer who is 
 able and willing to take the property upon 
 such terms, whether the sale is consummated 
 or not: Blodgett v. Sioux City & St. P. M. 
 Co., 63-606; Cassady v. Seeley, 69-509. 
 
 186. Where the agent is simply to find a, 
 purchaser, he will be entitled to his commis- 
 sion, when he produces a customer who is 
 ready and willing to buy, and with wliom 
 the principal enters into negotiations which 
 result in the purchase by him of the prop- 
 erty: Ibid. 
 
 187. The question whether in such case 
 the agent is entitled to his commission, de- 
 pends upon whether the person who after- 
 wards purchased does so as a result of the 
 negotiations which the agent induced him to 
 enter into. But such a question is one of 
 fact for the jury: Hanna v. Collins, 69-51. 
 
 188. An agent does not become entitled to 
 compensation under a contract for the sale 
 of lands at a fixed price, and on specified 
 terms, where he has not procured a pur- 
 chaser, but has merely induced a purchaser 
 to enter into negotiations with the principal, 
 and such negotiations result in the sale of 
 the property at a different price, and on dif- 
 ferent terms, and the principal did not know 
 that he was deahng with a. customer pro- 
 duced by the agent: Blodgett v. Sioux City 
 <& St. P. R. Co., 63-606. 
 
 189. Excess as commission: Under an 
 agreement that a real estate agent should 
 have, as compensation for the sale of real 
 property, whatever amount was realized for 
 the property in excess of a certain sum, and 
 
 nothing was said as to incumbrances, held, 
 that the owner of the property was bound to 
 remove incumbrances: Wisehart v. Dietz, 
 67-131. 
 
 190. Compensatiowfor sales of machinery 
 cannot be recovered unless such sales are 
 within the terms of the contract : Williams 
 Harvester Co. v. Pope, 69-523. 
 
 191. Where the manufacturer of agi'i- 
 cultural implements agreed to send such im- 
 plements as ordered to his agent, but stipu- 
 lated that he should not be held responsible 
 to the agent for failure to furnish such imple- 
 ments, where the demand exceeded the sup- 
 ply, held, that a judgment against the manu- 
 facturer for failure to furnish implements, 
 there being no averment nor proof that im- 
 plements were ordered, nor that the manu- 
 facturer did not use his best efforts to furnish 
 such implemients, was erroneous : Ibid. 
 
 192. Riglit of agent to reimburse him- 
 self: An agent is not permitted to speculate 
 with property intrusted to him. Even if he 
 is entitled to reimburse himself for the sums 
 actually expended for his principal, with the 
 interest, he cannot acquire absolute title to 
 property taken in trust for his principal, on 
 account of a mere failure of the principal to 
 reimburse him for his outlays, unless he has 
 first made a full and clear statement of such 
 outlays to his principal : Continental L. Ins. 
 Co. V. Perry, 65-709. 
 
 As to compensation, etc., of Attoeneys, 
 see that title. 
 
 c. Good faith from agent to 2>'>^inci- 
 pal. 
 
 193. Adverse interest of agent: While 
 an agent cannot act so as to bind his princi- 
 pal, when he himself has an adverse inter- 
 est, yet an assignment made by a firm to a 
 creditor may be accepted by one of the 
 members of the firm as agent for such cred- 
 itor: Randolph Bank v. Armstrong, 11-515. 
 
 194. Tax title adverse to principal: Be- 
 fore an agent having charge of real property 
 can acquire a tax title on such property ad- 
 verse to his principal, there must be an un- 
 ambiguous relinquishment of the agency. 
 The mere fact that the principal has failed 
 to furnish means to pay the taxes will not 
 justify the agent in procuring and holding 
 such a title : Bowman v. Officer, 58-640. 
 
28 
 
 AGENCY, IV, c. 
 
 Good faith. 
 
 195. Adverse interest, of a^eut: A land 
 agent who has procured and put on file a 
 mortgage to secure an anticipated loan, 
 which is not, in fact, efEected, cannot ac- 
 quire valid title to STich property from an- 
 other source, while such mortgage remains 
 as a cloud upon the title : Smeltzer v. Lom- 
 bard, 57-394. 
 
 196. The rule that an agent will not be 
 permitted, during his agency, to put himself 
 in a position which is adverse to his princi- 
 pal, is for the protection of the principal, and 
 the principal is the only party who can avoid 
 a contract made in violation thereof. If he 
 chooses to authorize his agent to transact his 
 business in violation of this rule, or after- 
 wards ratifies its violation, other parties will 
 not be heax'd to question such acts of the 
 agent. Therefore an agi-eement by which 
 the agent is to receive a commission from a 
 third .person, for a purchase made in behalf 
 of his principal, is binding on such third per- 
 son, who knows the agent's relation to his 
 principal: Leekins, v. Nordyhe, etc., Co., 66- 
 471. 
 
 197. Profit on purchases for principal: 
 An agent whose contract is such that he is 
 to receive a certain sum for land purchased 
 for his principal, may make whatever profit 
 for himself he can, provided there be no 
 fraud in the transaction, and it is iramaterial 
 to his principal what price he pays for the 
 land: Anderson v.'Weiser, 24r-428. 
 
 198. Purchase from principal: While an 
 agent employed to sell the property of his 
 principal is charged with the duty of obtain- 
 ing the highest price he can fairly get, yet 
 if he himself becomes the purchaser and the 
 principal the seller, he is under no obligation 
 to assist the principal in obtaining the high- 
 est price. His agency thereupon ceases. He 
 is not bound to disclose to the owner the 
 value of the property, and see to it that he 
 obtains a full price: Collar v. Ford, 45-331. 
 
 199. Fraud : Where an agent for the sale 
 of lands, by fraudulent concealment of the 
 facts as to the value, demand for the lands, 
 etc., procures a conveyance to him of the 
 lands for less than their value, while he is 
 negotiating a sale thereof at a much higher 
 price, and which sale is consummated after the 
 conveyance to him of the lands, he will yet 
 be liable to his principal for the proceeds of 
 
 the sale, if it was for a fair price, less what 
 he has paid over to the principal, with in- 
 terest on the amount found due : Stoner v. 
 Weiser, 24-434. 
 
 200. W^here an agent for the sale of lands 
 effected a sale for the full amount, and re- 
 ported to his principal a much less amount, 
 obtaining the conveyance to himself, under 
 the representation that it would be more con- 
 venient, the principal is entitled to recover 
 the excess over the amount recovered : Wilt 
 V. Graham, 33-599. 
 
 201. Where the principal relies upon the 
 agent as to the value of the property, and the 
 agent purchases for himself from the principal 
 at an inadequate price, the transaction is 
 fraudulent, and the sale may be set aside : 
 Ingle v. Hartman, 87-274. 
 
 202. Bank dealing with its president: 
 Where a contract for the delivery of stock 
 is made with the president of a bank, for the 
 bank, and the stock to be delivered is in the 
 possession of the president, the president 
 would be regarded as holding for the bank, 
 and the stock would be considered as the 
 bank's property : Marhley v. Rhodes, 59-57. 
 
 203. Member of firm negotiating pur- 
 chase from flrni : A member of a firm, vend- 
 ors of personal property, may act as the 
 agent of one who buys of the firm, and, as 
 such, file a bill of sale for record, and man- 
 age the vendee's interest in the property for 
 him : Thomas v. Hillhouse, 17-67. 
 
 204. Agent for two principals: Where an 
 agent, by authority of the principal, col- 
 lected money coming to the principal, and, by 
 consent of such principal, paid it over to an- 
 other, whose agent he also was, lield that the 
 money so collected and paid over should not 
 be recovered from the agent by the principal 
 in whose behalf it was paid, although the con- 
 tract under which it was paid was' void for 
 mistake: Montgomery County v. American 
 Emigrant Co., 47-91. 
 
 205. Agent dealing with principal under 
 an assumed name: Where an agent for the 
 sale of land wrote a letter to his principal in 
 the name of another person, making an offer 
 for the purchase of the land, and the princi- 
 pal then advised with such agent as to the 
 acceptance of the offer, and did accept in 
 pursuance of the advice thus given, and the 
 agent thus procured title at a price much less 
 
AGENCY, V. 
 
 2!) 
 
 Ratification. 
 
 than the value of the land, held, that equity 
 would set aside the sale as fraudulent : Sey- 
 mour V. Shea, 62-708. 
 
 V. Eatification. 
 
 206. Parol raliflcation under written 
 contract: Although the authority of an 
 agent may be in writing, yet, if he exceeds 
 his authority, and the principal ratifies the 
 act, the principal will be bound, whether the 
 ratification be in writing or not. No partic- 
 ular form of words is necessary to constitute 
 a ratification : Mathews v. Gillis, 1-243. 
 
 207. In general: If a party, on learning 
 that a contract has been made in his name by 
 a person acting as his agent, though without 
 authority to make such contract, does not 
 repudiate the same, but assents to it, it will 
 
 ' constitute a ratification. If the assumed 
 agent has no authority to bind, his alleged 
 principal can only be bound by ratification 
 or adoption of the act. Such ratification 
 may be implied as well as expressed, but the 
 principal is not bound to disaffirm in order to 
 avoid liability. There may be such circum- 
 stances as that the silence of the principal 
 may amount to an implied ratification, but 
 the principal is then bound by a positive 
 affirmance, or what amounts to such, and not 
 by a mere failure to disaffirm: Burlington 
 Gas Light Co. v. Greene, 22-508. 
 
 208. Accepting benefits: "While perhaps 
 there can be no ratification by the principal 
 of an act not done avowedly for him, yet 
 where one of two persons takes the title to 
 property, and pays the taxes thereon, and 
 the title is afterwards adjudged to be in the 
 other, and the latter accepts the benefit of 
 such payment of taxes, he is bound to repay 
 the same to the person who made the pay- 
 ment in the first place : Goodnow v. Stryker, 
 61-261. 
 
 209. Accepting the benefits of a sale, or 
 proposition for a sale, made by or through an 
 agent, ratifies the transaction and charges 
 the principal with its burdens: Milligan v. 
 Davis, 49-126. 
 
 210. "While the rule is that the principal 
 who accepts and retains the beneficial result 
 of a contract made by the agent is estopped 
 from denying the authority of the agent to 
 make it, the fact that property or money 
 
 received by the agent without authority re- 
 mains in the agent's possession will not pre- 
 vent the principal from refusing to be bound 
 by unauthorized acts of the agent : Hakes v. 
 Myrich, 69-189. 
 
 211. One may become bound by acontract, 
 which another has without authority as- 
 sumed to make in his name, by knowingly 
 accepting its benefits or by failing to repudi- 
 ate it within a, reasonable time, after he has 
 been informed of the act. He m^ay also be- 
 come bound by giving his assent to it, or by 
 an express contract subsequently made to 
 perform the contract. In the one case the 
 law conclusively presumes a ratification from 
 the circumstances. lu the other the party is 
 bound, because he gives his consent to the 
 act : Eikenberry v. Edwards, 67-14. 
 
 212. Knowledge of unantliorized act: A 
 principal cannot be held to have ratified an 
 unauthorized act done in his behalf unless lie 
 has knowledge of the act : Tod v. Benedict, 
 15-591. 
 
 213. One who avails himself of the benefits 
 of an unauthorized contract made in his be- 
 half is bound by all the terms of such con- 
 tract, whether known to him or not. There- 
 fore, where an agent who had authority to 
 warrant was superseded by another without 
 such authority, and the former, after the ex- 
 piration of his agency, made a sale with 
 warranty, taking notes which were trans- 
 ferred to and accepted by the principal, held, 
 that such principal was bound by the con- 
 tract of warranty made in connection there- 
 with : Eadie v. Ashbaugh, 44-519. 
 
 214. Delay of the principal in disaffirm- 
 ing acts of the agent, assumed to be done by 
 his authority, will not constitute a ratifica- 
 tion, where the principal has no knowledge 
 of the unauthorized acts: Hakes v. Myrick, 
 69-189. 
 
 21.5. An unauthorized contract will not 
 be binding upon a principal until it is shown 
 that the principal knew that the agent had 
 so contracted, and that the principal, after 
 being so informed, permitted the property to 
 remain under the control of the agent : White 
 V. Morgan, 42-113. 
 
 216. Failure of the principal to object to 
 acts done in pursuance of supposed consent 
 of agent will not amount to a ratification of 
 such consent, unless the fact of such consent 
 
30 
 
 AGENCY, V. 
 
 Ratification. 
 
 was known to the principal: Decorah 
 Woolen Mill Co. v. Greer, 49-490. 
 
 217. Where the agent of an insurance 
 company only claimed to have power to re- 
 ceive applications to be forwarded, and it was 
 not shown that the company knew of his acts 
 outside of his powers, held that they would not 
 bs bound by failure to object to a permission 
 given by such agent to the insured to use an 
 explosive on the premises: Bartholomew v. 
 Merchants' Ins. Co., 35-507. 
 
 218. Ratification must be complete: 
 One who wishes to avail himself of the un- 
 authorized acts of another must adopt the 
 whole of such acts or none. But where the 
 agent is duly appointed, whatever he does 
 beyond his authority may be ratified, or if 
 not ratified, is void, without affecting the 
 validity of the authorized acts: Davenport 
 Savings, etc.,Ass'nv. North Am. F. Ins. Co., 
 16-74. 
 
 219. The principal cannot, of his own 
 mere authority, without the consent of the 
 other party, ratify a transaction by his agent 
 in part and repudiate it as to the rest ; he 
 must either adopt the whole or none. A 
 ratification of a part ratifies the whole of that 
 particular transaction of the agent: Krider 
 V. Trustees, 31-547. 
 
 220. Therefore, where the president of a 
 board of trustees executed as agent for such 
 trustees a note for money borrowed, and to 
 secure the same executed a mortgage upon 
 the property of the corporation, held, that 
 the ratification of the execution of the note 
 ratified the execution of the mortgage: Ibid. 
 
 221. Pai'tial ratiflcation : Where a person 
 assumes without authority to act as the agent 
 of another, the principal cannot be bound at 
 all, unless he ratify the act. In such a case 
 he cannot accept the act in part and repudi- 
 ate it in part. But the principle does not ap- 
 ply when the agent is duly appointed and 
 vested with special or limited powers. In 
 such case the principal may accept the bene- 
 fits of acts which the agent was authorized 
 to do, without being bound by the unauthor- 
 ized acts of the agent, of which he had no 
 knowledge when he accepted the benefits of 
 the transaction: Roberts v. Mumlej/, 58-30\. 
 
 222. Where a contract wholly unauthor- 
 ized is an entirety, and the principal takes 
 the benefit of it, he must take an obligation 
 
 which is a part of it. If the principal accepts 
 the benefit of a portion of the contract, in 
 ignorance of other terms thereof, he must, 
 on learning the full terms of the contract, 
 promptly disaffirm by returning the benefit 
 received or he will be bound by the whole : 
 Beidman v. Goodell, 56-598. 
 
 22.3. Stile subject to approval: Under the 
 facts of a particular case, held, that an agent 
 for the sale of land was not given authority 
 to sell except on approval of the contract by 
 his principal. In such a case the fact that 
 former sales have been approved as made, 
 would not give rise to authority to make fur- 
 ther sales without approval : Burlington, C. 
 R. & N. R. Co. V. Sherwood, 63-309. 
 
 224. Long silenre implying' ratiflcation: 
 Where a person pledged the entire stock of 
 goods of another to the creditor of his sup- 
 posed jDrincipal, and such creditor, after re- • 
 taining possession for two years, disposed of 
 the goods, held, that it might be inferred from 
 the silence of the principal and his failure to 
 complain of, or disaffirm, the act, that the 
 agent hsd such power : Farwell v. Howard, 
 36-381. 
 
 22.5. Una nthorized lease; accepting rent: 
 Where the agent without authority made a 
 lease, and rent thereunder was afterwards 
 accepted by the principal, held, that the lease 
 was binding upon the principal : Chamberlain 
 V. Collinson, 45-439. 
 
 226. Sale of land: Where the owner of 
 i-eal- and personal property executed a power 
 of sale which did not in terms authorize the 
 sale of real property, but it appeared that 
 such owner intended to give to the agent 
 power of attorney to sell the land, and the 
 land was sold accordingly and the considera- 
 tion received and retained, held, that the sale 
 was binding upon the owner : Rook v. Jime- 
 son, 67-303. 
 
 227. In case of an unauthorized sale of 
 land by an agent, held, that the principal had 
 so ratified said contract as to make it binding 
 upon him : Chamberlin v. Robertson, 31-408. 
 
 228. Acceptance of note: The act of a 
 person in accepting a note made in his favor 
 is sufficient ratification of the agency of the 
 person taking the note in his name: Crowe v. 
 Capwell, 47-426. 
 
 225). Where the principal accepts notes 
 taken by an agent he cannot deny the power 
 
AGENCY, V — AGRICULTURAL SOCIETIES. 
 
 u L 
 
 Ratification. — Horse racing. 
 
 of Buoh agent to act for him, and is bound 
 by the contract of the agent in pursuance of 
 which the note was given : Farrar v. Peter- 
 son, 53-420. 
 
 230. Further acts after ratiflcation : The 
 act of the principal in accepting a note exe- 
 cuted and delivered to him by one having no 
 authority will not constitute the person thus 
 acting an agent of the principal in such sense 
 as to authorize him to receive payment and 
 bind the principal by an agreement to deliver 
 up the note: Draper v. Rice, 66-114. 
 
 231. Particular cases: Under the facts of 
 a particular case, held, that the principal had 
 ratified the acts of the agent in transferring 
 a certain certificate of purchase, and could 
 not afterwai'ds question the assignee's right 
 thereunder: Hannum v. Benton, 54-396. 
 
 232. Under particular circumstances, held, 
 that although an agent employed in selling 
 agricultural implements had not the author- 
 ity to purchase a team with which to prose- 
 cute his business, yet that the circumstances 
 showed a ratification of such purchase suffi- 
 cient to render the principal liable upon a 
 promissory note given for the team : Warder 
 V. Pattee, 57-515. 
 
 233. Ratification by agent having gen- 
 eral powers: A principal will be bound by 
 the acts of an agent having general powers 
 in ratifying a previous transaction, and ap- 
 propriating the proceeds thereof to the prin- 
 cipal's use, although such prior transaction 
 was with -the knowledge of the party with 
 whom it was entered into, in violation of ex- 
 press instructions of the principal: Palmer 
 V. Cheney, 35-281. 
 
 234. Ratification discharging agent from 
 liability to principal: Where an agent to 
 whom a draft was sent for collection, pre- 
 sented it for acceptance only, when it should 
 have been presented for payment, and the in- 
 dorser thereby became discharged, held that 
 a subsequent direction by the principal to the 
 agent to protest the draft, and a payment of 
 the protest fees by the principal, would not 
 amount to a ratification, so as to release the 
 agent from his liability : First Nat. Bank v. 
 Price, 52-570. 
 
 235. Where the agent intrusted with the 
 disbursing of money for his principal renders 
 an account of such disbursement, he has a 
 right to expect his account will receive atten- 
 
 tion, and that any disapproval of his acts by 
 the principal shall be made within a reason- 
 able time. If the principal has possession of 
 the accounts, and neglects to make examina- 
 tion, he will not be heard to say that he was 
 not informed as to the agent's acts, ami 
 should not therefore be held to have ratified 
 them: Minnesota Linseed Oil Co. v. Mon- 
 tague, 65-67. 
 
 236. Reasonable time to disaffirm : Where 
 an agent without authority makes payment 
 out of the funds of his principal, the question 
 as to what constitutes a reasonable time 
 within which the principal is required to ob- 
 ject to such payment must be submitted for 
 the jury to determine from the evidence : 
 Minnesota Linseed Oil Co. v. Montague, 59- 
 448. 
 
 237. Effect of ratification: The ratifica- 
 tion of an act by the principal has the same 
 effect as a previous authority: Berryhill v. 
 Jones, 35-835 . Herriott v. Kersey, 69-111. 
 
 238. Where a public ofiicer makes an un- 
 authorized loan of public moneys, and takes 
 a mortgage to secure it, the mortgagor can- 
 not be heard to deny the validity of the 
 mortgage, nor can his privy in estate claim 
 an interest in the lands mortgaged. And 
 when the state ratifies such loan, the ratifi- 
 cation has the same effect as an original au- 
 thority, and makes the transaction valid 
 from the beginning : State v. Shaic, 28-67. 
 
 AGRICULTURAL COLLEGE. 
 
 1. Lease of lands of: The legislature can 
 fix and enforce the terms and conditions of a 
 lease or sale of lands of the agi-icultural col- 
 lege belonging to the state : S7nith v. Trustees, 
 28-500. 
 
 2. Right of way over lands: Proceedings 
 had for the condemnation of a right of way 
 over agricultural college land, to which the 
 trustees of the college are properly made 
 parties, will be binding upon a subsequent 
 purchaser of sucli property: Chicago, M. & 
 St. P. R. Co. V. Bean, 69-257. 
 
 AGRICULTURAL SOCIETIES. 
 
 1. Horse racing at fairs: The offer of a 
 premium to the winner at a horse-race under 
 
32 
 
 ALIENS. 
 
 Eight to own and hold property. 
 
 the control of the society, is not in excess of 
 the authority of such society under Code, 
 § 1109, nor illegal under Code, S 1114, pro- 
 hibiting gambling or horse-racing at such 
 fairs : Delier v. Plymouth County Ag'l Soc'y, 
 •57-481. 
 
 ALIENS. 
 
 t. Right to own and hold property: The 
 
 provisions of Const., art. I. § 23, that for- 
 eigners who are or may hereafter become 
 residents of the state, shall enjoy the same 
 rights in respect to the possession, enjoyment, 
 and descent of property, as native born citi- 
 zens, does not change the common law nile 
 as to non-resident aliens, and a resident alien, 
 to take advantage of its provisions, must be 
 such at the time of descent cast : Stemple v. 
 Herminghouser, 3 G. Gr., 408. 
 
 2. But this provision does not restrict the 
 power of the legislature to extend the same 
 privileges to other foreigners than those 
 named : Pwrczdl v. Smidt, 21-540. 
 
 3. It confers upon resident aliens the right 
 to transmit as well as to acquii-e real prop- 
 erty by descent : Ibid. 
 
 4. At common law an alien could not ac- 
 quire real estate by purchase so as to convey 
 a good title to his vendee : Ibid. 
 
 5. The act of 1858 respecting aliens (Rev., 
 §§ 3488-2493), so far as it relates to pei-- 
 sonal property, is probably only declarative 
 of the common law, and in this state, as at 
 common law, aliens are capable of acquiring, 
 holding and transmitting movable property 
 in like manner as citizens : Ibid. ; Oreenheld 
 V. Morrison, 21-538. 
 
 6. Taking by descent or devise: Prior to 
 the adoption of the state constitution of 1846, 
 the common law rule was in force, and al- 
 though it was then provided by statute that 
 real property should descend in equal shares 
 to the children, nevertheless, an alien child 
 had no inheritable blood and could not take 
 by descent ; and the subsequent constitutional 
 provision above referred to only changed the 
 rule as to aliens who were aliens at the time 
 of descent cast: Stemple v. Herminghouser, 
 3 G. Gr., 408; Krogan v. Kinney, 15-342. 
 
 7. Also, held, that the provisions of the 
 Revision above referred to were intended to 
 
 apply only to residents in this state or the 
 United States, except in the single instance 
 of a devise by will to a non-resident alien 
 who should afterwards become a resident: 
 Krogan v. Kinney, 15-343 ; Bheim v. Robbins, 
 20-45. 
 
 8. Such provision giving aliens, wherever 
 resident, the right to take or acquire prop- 
 erty by bequest or devise, upon condition, in 
 case of non-residents, that they shall become 
 residents of this state, was retrospective as 
 well as prospective: Purczell v. Smidt, 
 31-540. 
 
 9. The judges of the court were divided on 
 the question as to the capacity of a non- 
 resident alien to acquire real estate in this 
 state by descent under the statutory pro- 
 visions above referred to: Oreenheld v. 
 Stanforth, 31-595. 
 
 10. Such statutory provisions gave aliens 
 resident in the United States who had de- 
 clared their intention of becoming citizens, 
 and all aliens resident in this state, the right 
 to acquire real property by descent or pur- 
 chase, the word purchase meaning acqui- 
 sition by bargain and sale for a consideration ; 
 and this provision was prospective : Purczell 
 V. Smidt, 31-540. 
 
 11. This statutory provision also gave 
 every alien, wherever resident, the right to 
 acquire real estate by bargain or sale from 
 persons holding an absolute title, provided he 
 in good faith sold the same within ten years 
 to a person capable of holding an absolute 
 title. And the heirs at law of the non-resi- 
 dent alien purchaser took a valid title subject 
 to the same necegsity of selling. This pro- 
 vision was retrospective : Ibid. 
 
 12. Subsequent to this decision the court 
 united in adhering to the doctrine that under 
 the statutory pi-ovision referred to a non- 
 resident coul<J not inherit: Brown v. Pear- 
 son, 41-481. 
 
 13. Under the statutory provisions just re- 
 ferred to, under which it was decided that 
 an alien non-resident could not take lands in 
 this state by inheritance, held, that the non- 
 resident alien heirs of such owner could not 
 inherit any share of such property, but that 
 the whole would pass to heirs who were resi- 
 dent citizens of the state: King v. Ware, 
 53-97. 
 
 14. Under these provisions an alien resi- 
 
ALTERATION OF INSTRUMENTS, I, a. 
 
 33 
 
 Effect of.— With fraudulent intent. 
 
 dent could take nothing by will unless he, sub- 
 saquent to the making of the bequest,, 
 became a resident: Ware v. Wisner, 4 
 McCrary, 66. 
 
 15. Granting of lands to: The disposal of 
 the public land within the state being ex- 
 pressly reserved to the United States, a grant 
 by the United States to an alien will confer 
 upon him an inheritable estate : King v. Ware, 
 53-97. 
 
 16. Dower: The provisions of the Revision 
 gave an alien married woman the same 
 rights of dower as if a resident, provided her 
 husband was capable, at the time of his de- 
 cease, of holding an absolute title to lands in 
 this state : Purczell v. Smidt, 31-540. 
 
 17. Married woman: The citizenship of 
 the husband determines that of the wife: 
 Ware v. Wisner, 4 McCrary, 66. 
 
 18. Chilli born abroad: By the common 
 law allegiance is not a matter of individual 
 choice. It attaches at the time and on ac- 
 count of bu-th, and under circumstances 
 in which the family owes allegiance and is 
 entitled to protection: State v. Adams, 
 45-99. 
 
 19. Where a person removing to Canada 
 was and had been for several years a citizen 
 of this country, held, that he remained such 
 citizen notwithstanding his removal to and 
 subsequent death in Canada, and that his 
 sou born in Canada became a citizen of the 
 United States, and that the child of such son, 
 when brought with him to this state, was a 
 citizen of this state without natm-alization of 
 his father or himself : Ibid. 
 
 20. Involuntary military service on the 
 part of a citizen of this country, resident in 
 a foreign country, in behalf of such country 
 in a war between the two countries, and the 
 acceptance of bounty for such service, is not 
 sufficient to deprive him of the rights of citi- 
 zenship: Ibid. 
 
 31. Residence at time of independence: 
 The doctrine of the American courts seems 
 to be that all persons domiciled in this country 
 on the 4th day of July, 1776, and who re- 
 mained here after the treaty of peace in 1783, 
 became citizens. The English courts have 
 held that the right of citizenship did not at- 
 tach until the treaty of peace in 1783, and 
 that all persons domiciled here at that time 
 became citizens : Ibid. 
 Vol. 1 — 3 
 
 ALTERATION OF INSTRUMENTS. 
 
 I. Effect of material alteeation. 
 
 a. With fraudulent intent, 
 
 b. Innocent alteration. 
 11. What deemed mateeial. 
 
 III. Evidence; bueden of proof. 
 
 I. Effect of material alteeatioit. 
 
 a. With fraudulent intent. 
 
 1. Defeats recoTery : A material alteration 
 of the terms or conditions of commercial pa^ 
 per, made by the holder thereof with a fraud- 
 ulent intent, will defeat recovery thereon: 
 Robinson v. Seed, 46-319. 
 
 2. Where a certificate of deposit was is- 
 sued with blank as to the rate of interest, 
 and a holder thereof, on transferring it to a 
 purchaser, represented that the rate was left 
 blank by mistake and that ten per cent, had 
 been agi-eed upon, which amount was there- 
 upon inserted in the blank by a third person, 
 the statement as to the agreement for ten per 
 cent, interest being false, held, that such al- 
 teration was fraudulent and would defeat 
 recovery by the transferee on the certificate, 
 or on the claim for the amount deposited, 
 without regard to the certificate: Woodworth 
 V. Anderson, 63-503. ■ 
 
 3. As against bona fide purchaser: A ma- 
 terial alteration of a note may be shown, even 
 as against an indorser for value before ma- 
 turity: Charlton V. Heed, 61-166. 
 
 4. Where a promissory note was fraudu- 
 lently altered by the payee by inserting the 
 words "one hundred" in the blank preced- 
 ing the amount, and the figure "one" after 
 the dollar mark, so as to change it into a note 
 for one hundred and ten dollars instead of 
 ten dollars, and the blank for the place of 
 payment was also filled, there being nothing 
 on the face of the note to indicate these 
 alterations, held, that the note was void even 
 in the hands of an assignee in good faith and 
 before maturity: Knoxville Nat. Bank v. 
 Clark, 51-264. 
 
 5. Restoration of the instrument: After 
 such fraudulent alteration the party guilty 
 thereof cannot restore the instrument to its 
 former condition and then recover thereon : 
 Robinson V. Reed, 46-319. 
 
 6. Innocent holder after restoration: An 
 instrument which has been fraudulently 
 
34 
 
 ALTERATION OF INSTRUMENTS, I, b; II. 
 
 Innocent alteration. — What deemed material. 
 
 altered, but afterwards restored to its original 
 form before coming into the hands of an in- 
 nocent purchaser for value, will be valid in 
 his hands: Shejpard v. Whetstone, 51-457. 
 
 7. Forgery: A material alteration may con- 
 stitute forgery : Snyder v. Reno, 38-329. 
 
 b. Innocent alteration. ■ 
 
 8. Renders instrument void : This court 
 has adopted the rule that any material alter- 
 ation of a promissory note by the holder 
 thereof avoids the note, and no action can be 
 maintained thereon, even though the altera- 
 tion be made innocently and without fraud- 
 ulent intent: Eokert v. Piekel, 59-545; Mur- 
 ray V. Oraham, 29-520. 
 
 9. Recovery on original consideration: 
 If the alteration has been innocently made 
 without a fraudulent purpose, the payee may 
 recover in an action brought upon the original 
 consideration: Sullivan v. Rudisill, 68-158; 
 Krause v. Meyer, 3^-566 ; Murray v. Oraham, 
 29-520. 
 
 10. And he may establish the original con- 
 sideration by any evidence, written or oral, 
 which is not vitiated by the alteration of the 
 instrument: Morrison v. Huggins, 53-76. 
 
 1 1 . The fact that an alteration is made as 
 the i-esult of a mistake, or false information 
 imparted to the holder, will not prevent his 
 recovery on the original consideration, even 
 though the false information was conveyed 
 to him by an agent, if such agent was a 
 stranger to the note : Krause v. Meyer, 32-566. 
 
 12. Where the alteration is not fraudulent, 
 the original debt is not destroyed, and the 
 party may recover thereon and maintain an 
 action to foreclose a mortgage given to secure 
 the same : Clough v. Seay, 49-111. 
 
 13. Action of a party in changing the date 
 of an instrument, to correspond to what was 
 supposed to be the understanding of the 
 parties, does not preclude parol evidence as 
 to what the real date was : Barlow v. Buck- 
 ingham, 68-169. 
 
 14. Recovery on original instrument: 
 Where the alteration was made by one of 
 the makers, acting, as he believed, under 
 proper authority, with the payee's knowledge, 
 and the change was made in good faith, held, 
 that a recovery could be had upon the note 
 as originally delivered : Murray v. Graham, 
 29-520. 
 
 15. Restoration to original form: Where 
 an alteration, although material, is, as made, 
 adopted through ignorance as a method of 
 accomplishing an authorized result, it may 
 properly be stricken out by the party making 
 it before ohaiige in the possession of the in- 
 strument, and the instrument will remain 
 valid in its original f orna : Horst v. Wagner, 
 43-378. 
 
 16. So held, where the payee of a note, in- 
 tending to transfer it to a third person, 
 erased his own name and wrote that of the 
 intended transferee in the body of the in- 
 strument, but before delivery canceled such 
 alteration and restored the note to its orig- 
 inal form : Ibid. 
 
 17. Alteration by consent: If the alterar 
 tion is made with the knowledge and consent 
 of the maker at the time of such alteration, 
 the instrument does not become void, and if, 
 with knowledge of the alteration, he advises 
 the purchase of the note by another, he can- 
 not afterwards raise objection on account of 
 such alteration as against such purchaser: 
 Grimstead v. Briggs, 4r-559. 
 
 18. Ratification: Where it appeared by 
 the evidence of the party who would be af- 
 fected by the alteration, that such alteration 
 accorded with the contract which the pai-ties 
 had made, and that they performed it as 
 altered, and acknowledged themselves bound 
 by it, held, that no objection on the ground 
 of the alteration could be raised by a person 
 not a party to the instrument, as affecting its 
 validity : Andrews v. Burdick, 62-714. 
 
 19. Where a mortga,ge was altered by in- 
 sertion of additional property after its execu- 
 tion by one of the joint mortgagors, but prior 
 to its execution by the other, held, that it 
 was valid against both mortgagors as to 
 property included therein before the altera- 
 tion, and as to the property subsequently in- 
 serted, it was void against the one who had 
 already executed it but binding as to the 
 other : Van Horn v. Bell, 11-465. 
 
 20. The burden of showing ratification of 
 a material alteration is upon the party seek- 
 ing to recover upon the instrument as altered : 
 Bell V. Mahin, 69-408. 
 
 II. What deemed mateeial. 
 
 21. Different legal effect: An alteration 
 which does not give the instrument a diflfer- 
 
ALTERATION OF INSTRUMENTS, II, III. 
 
 35 
 
 What deemed material. — Evidence; burden of proof. 
 
 ent legal effect will not avoid it : Briscoe v. 
 Reynolds, 51-673. 
 
 22. What changes material: The insertion 
 in a note of a provision making the interest 
 payable annually is a material alteration: 
 Marsh v. Griffin, 43-403. 
 
 23. Striking out the word "surety" after 
 the name of one of the signers of a note is a 
 material alteration: Laub v. Paine, 46-550. 
 
 24. Writing the word surety above the 
 name of an indorser in blank who is not 
 payee, indorsee, or assignee, is a material 
 alteration : Bobinson v. Heed, 46-319. 
 
 25. An alteration of a note, by changing 
 the word "order" to "bearer," is material: 
 Needles v. Shaffer, 60-65. 
 
 26. Where a note was executed "payable 
 
 at the National Bank ," held, 
 
 that an alteration thereof by erasing the 
 word "national" and inserting the name of 
 a bank not a national bank, doing business 
 in a county not that of the maker's residence, 
 rendered the note void: Adair v. Egland, 
 58-814. 
 
 2 7. So, where, in a similar note, the blanks 
 were afterwards flUed so as to designate the 
 true place of payment, held, that the altera- 
 tion was material and sufficient to defeat re- 
 "covery on the note : Charlton v. Heed, 61-166. 
 
 28. The question of the materiality of an 
 alteration is one for the court, and where one 
 who held a contract of insurance had altered 
 an indorsement on the back thereof, which 
 was in fact a contract with another party, 
 held, that plainttBE's contract would not be 
 avoided by such alteration if material, and 
 under the facts of this case, the court should 
 have instructed that the alteration was im- 
 material. But if there was such alteration 
 of the contract by plaintiff as to affect and 
 enlarge his contract, such alteration would 
 avoid it: Bobinson v. Phoenix Ins. Co., 35-430. 
 
 29. Additional signatures: The signing 
 of a promissory note by one as surety, after 
 the execution by the original maker, if done 
 without the consent of such maker, is a ma- 
 terial alteration which will defeat the instru- 
 ment: Sullivan V. Rudisill, 63-158. 
 
 As to the effect of adding or striking off a 
 name upon the liability of the surety, see 
 SUKETYSHIP, n, 0. 
 
 30. The addition of the name of another 
 maker to a bUl or note after its delivery, 
 
 without the knowledge and consent of the 
 other makers, is a material alteration such as 
 will discharge the original makers, without 
 inquiry as to whether the alteration is bene- 
 ficial or injui'ious to them: DicTcerman v. 
 Miner, 43-508; Hall's Adm'x v. McHenry, 
 19-531. 
 
 31. But the law will presume that the 
 additional signer knew the effect of his signa- 
 ture, and he will be held liable upon the 
 note : Dickerman v. Miner, 43-508. 
 
 32. Alteration not deemed material: 
 Where a note was conditioned upon the ful- 
 fillment of an agreement by the payee, an 
 acknowledgment written upon such note by 
 one of the makers, stating a performance of 
 the condition by payee, signed by the maker, 
 held, pot to constitute an alteration of the in- 
 strument such as to avoid it as against a co- 
 maker : Jackson v. Boyles, 64-438. 
 
 83. Bill of sale: The execution and de- 
 livery of a bill of gale creates a title and 
 right to possession in the grantee, and where 
 such possession has been assumed, it may be 
 maintained, notwithstanding the alteration 
 of such instrument subsequent to its execu- 
 tion : Pansier v. Vanorsdol, 50-130. 
 
 34. Evidence in particular cases: The 
 materiality of an alteration in a mortgage in 
 a particular case considered: Williams v. 
 Barrett, 53-637. 
 
 35. Evidence held sufficient to show alter- 
 ation of a receipt: Wilson v. Fulliam, 50-133. 
 
 As to what is a sufficient alteration to dis- 
 charge a surety, see Suretyship,' II, c. 
 
 III. Evjdesce; bceden of peoof. 
 
 36. The mere appearance of a note is not 
 sufficient to establish an alteration such as 
 will render it void: Harlan v. Berry, 4 G. 
 Gr., 313. 
 
 37. Presumption: An alteration, particu- 
 larly if made with a different colored ink 
 from that of the instrument and the signa- 
 ture, will throw suspicion upon the note and 
 cast the burden of proof upon the party 
 offering it ; but the mere fact that words in 
 the body of the instrument, without erasure 
 or interlineation, appearing to have been 
 written when the remainder of the note was 
 written, or in a space left to receive them, 
 are written in a different handwriting and 
 
36 
 
 ALTERATION OF INSTRUMENTS, III — ANIMALS. 
 
 Evidence ; burden of proof. — Cattle running at large. 
 
 in a different ink from that of the body and 
 signature, are not sufficient to raise the pre- 
 sumption of alteration -..Jones v. Ireland, 4-63. 
 
 38. If any ground of suspicion is apparent 
 on the face of the instrument, the law pre- 
 sumes nothing, but leaves the question of the 
 time when it was made, as well as of the per- 
 son by whom, and the intent with which it 
 was made, as matters of fact to be ulti- 
 mately found by the jury, upon proof to be 
 adduced by the party oflEering the instru- 
 ment in evidence : Ibid. 
 
 89. The mere fact that different parts of 
 an instrument are written in different ink 
 and a different handwriting does not afford 
 sufficient evidence of alteration to require 
 explanation: Wilson v. Harris, 35-507. 
 
 40. The alteration being shown, will be 
 presumed to have been made by plaintiff, 
 and with a fraudulent intent, unless such 
 facts are disproved by him: Robinson v. 
 Reed, 46-319. 
 
 41. Burden of proof: If the execution of 
 an instrument is not denied, the burden of 
 proving alteration therein is upon defendant : 
 Van Horn v. Bell, 11-465. 
 
 42. The execution of a county warrant in 
 suit not being denied, held, that the burden 
 was upon defendant to show that the altera- 
 tion therein was made without the knowledge 
 and consent of the county : Warren v. Chick- 
 asaw County, 13-588. 
 
 43. The burden of proof is upon the party 
 relying upon the alteration as a defense to 
 prove it: Odell v. Gallup, 6a-253. 
 
 44. An allegation by defendant that a 
 virritten contract upon which plaintiff relies 
 has been altered since its execution is an al- 
 legation of new matter of defense and does 
 not cast upon plaintiff the obligation to ex- 
 plain such alteration until evidence with 
 reference thereto has been introduced by de- 
 fendant : Wing v. Stewart, 68-13. 
 
 AMENDMENTS. 
 See that title in index. 
 
 ANIMALS, 
 
 As to obligation to fence against stock and 
 sufficiency of fences, see Fences. 
 
 1. Cattle running at large: In this state 
 cattle are free commoners, and may lawfully 
 
 be permitted to run at large ; and the rule of 
 the common law, that every man is bound to 
 keep his cattle within his own inolosure or 
 be responsible in damage for injuries arising 
 from their being abroad, is not applicable to 
 the condition and circumstances of the peo- 
 ple, and is not in force : Wagner v. Bissell, 
 3-396 ; Heath v. Coltenback, 5-490 ; Alger v. 
 Mississippi & M. R. Co., 10-268; Russell v. 
 Hanley, 20-219; Smith v. Chicago, R. I. & 
 P. R. Co., 34-506. 
 
 2. Therefore, the owner of land can only 
 maintain an action for trespass by cattle, by 
 showing that his fence was such as is re- 
 quired by statute : Frazier v. Nortimis, 84r-82. 
 
 3. But if cattle, after breaking over a suf- 
 ficient fence into one field, go thence into 
 another of the same owner, through a fence 
 which is not sufficient, the action for their 
 trespass upon the second field will lie : Her- 
 old V. Meyers, 20-378. 
 
 4. Damages: The owner of the land may 
 have his remedy by action against the owner 
 of the stock, as provided in Code, § 1453, or 
 by distraining the animals. If he pursue 
 the former course the ordinary rules as to 
 proof, etc., apply, and he need not have 
 the damages ascertained by the township 
 trustees, as provided in § 1454 : Quinton v. 
 Van Tuyl, 30-554. 
 
 6. A land owner in a county where stock 
 is prohibited from running at large is not 
 relieved of his obligation to maintain parti- 
 tion fences, and if stock rightfully in an 
 adjoining inolosure escape upon his land by 
 reason of his failure to maintain such fence, 
 he cannot recover damages from the owner 
 of the stock : Duffees v. Judd, 48-256. 
 
 6. If animals, though lawfully on adjoin- 
 ing land, escape therefrom an(i do damage, 
 and their escape is not in consequence of the 
 neglect of the person suffering the damage, 
 their owner is liable therefor. It is not neces- 
 sary that the f enc« surrounding the land of 
 the person injured is throughout a lawful 
 fence, if it is shown to have been such at the 
 place where the cattle broke through. And 
 this will be true where the owner of the ad- 
 joining land and the owner of the cattle are 
 the same person and the fence broken through 
 belongs to him: Noble v. Chase, 60-361. 
 
 7. Trespass: Cattle, when they of their 
 own accord go upon the unfenced land of 
 
ANIMALS. 
 
 37 
 
 Negligence. 
 
 another, do not render their owner liable to 
 an action by the owner of the land, and the 
 owner of the cattle may rightfully enter to 
 remove them ; and if they have crossed the 
 unfenced land of one and gone on to that of 
 another, they may be driven back across the 
 land they crossed in entering: Cam/p v. 
 Flaherty, 28-520. 
 
 8. Negligence: The statute (13 G. A., ch. 
 26) making the owner of stock running at 
 large liable for damages done by it, did not 
 make it unlawful for stock to run at large, 
 and therefore did not debar the owner of 
 such stock from the recovery of damages 
 against a railroad company for injury to 
 such stock through negligence : Kuhn v. Chi- 
 cago, R. I. & P. R. Co., 42-420. 
 
 9. Cattle being free commoners, the mere 
 fact of iDermitting them to run at large is 
 not a ground of imputing negligence to the 
 owner : Haughey v. Hart, 62-96. 
 
 10. The right of the owner of cattle or 
 other stock to pasture them upon the com- 
 mons is a, permissive and not an abstract 
 right. And while the owner of an inclosure 
 cannot maintain an action for trespass 
 against the owner of cattle entering thereon 
 from the commons, unless his fence is such 
 as is required by statute, yet there is no obli- 
 gation on his part to fence, and there can be 
 no recovery for injuries to the cattle from 
 feeding upon growing crops: Herald v. 
 Meyers, 20-378. 
 
 11. Male animals: The owner of a thor- 
 oughbred cow, which is got with calf by an 
 ill-bred and unpedigreed bull, unlawfully run- 
 ning at large, may recover damages from the 
 owner of such bull, which are to be meas- 
 ured by the difference in the value of the 
 cow, for the purpose of breeding of fine 
 stock, before meeting such bull, and after- 
 wards : Crawford v. Williams, 48-247. 
 
 12. The provision as to stallions is not 
 applicable to colts until they are of such age 
 as to be troublesome to mares or dangerous 
 to be at large : Aylesworth v. Chicago, R. I. 
 <& P. R. Co., 30-459. 
 
 13. Upon improved land: The fact that 
 an eighty-acre tract of land is sun-ounded by 
 a single ploughed fun-ow, and includes a few 
 acres under cultivation, will not render it 
 all improved or cultivated land within the 
 meaning of Code, § 1452 ; but in such cases the 
 
 owner of the land may recover damages from 
 the owner of cattle who herds and confines 
 them upon such land : Otis v. Morgan, 61-713. 
 
 14. Submission of qnestion to vote: Pro- 
 visions authorizing a submission of the ques- 
 tion whether swine and sheep should be per- 
 mitted to run at large were held to be merely 
 an exercise of police power, and therefore 
 not unconstitutional as not having a uniform 
 operation, nor as depending for their validity 
 upon a popular vote : Dolby v. Wolf, 14-228. 
 
 15. A similar provision in 13 G. A., ch. 
 144, and 13 G. A., ch. 26, making the ques- 
 tion whether that act should be in force in 
 any county depend upon a vote of the people 
 of the county, was held unconstitutional, and 
 the act was held to be in force in aU the 
 counties of the state without such adpption: 
 Weir V. Cram,, 37-649; Little v. McGuire, 
 38-500 ; Hallocle v. Hughes, 42-516. 
 
 16. Stock; meaning of term: The statu- 
 tory provision (Code, § 1450 as amended}, 
 that the word stock shall include cattle, 
 horses, mules and asses, is only applicable in 
 the connection in which it is used, and is not 
 to be deemed a limitation upon the meaning 
 of the word as found in other statutes. As 
 generally used it includes swine as well as 
 the animals referred to : State v. Glarlc, 65-336. 
 
 17. Distraint: It is only persons whose 
 lands are inclosed by a lawful fence who are 
 authorized to distrain domestic animals in- 
 juring their premises. If lands are not so 
 inclosed there is no right to distrain, and 
 possession acquired by such distraint is un- 
 lawful. The rightfulness of the distraint 
 may therefore be inquired into in an action 
 of replevin: it is not a matter for the ex- 
 clusive determination of the fence viewers. 
 But if the distraint is found ,to be legal, the 
 property may be remanded to the distrainor 
 and the damages may be assessed by the town- 
 ship trustees, subject to the right of appeal 
 as provided for in §g 1454 and 1455 : Syford 
 V. Shriver, 61-155. 
 
 18. The fence viewers are not given special 
 authority to inquire into and determine the 
 lawfulness of fences inclosing the premises 
 trespassed upon by cattle, and that matter 
 may be determined in an action of replevin to 
 recover the animals from the person making 
 distraint, when it is claimed that his premises 
 are not sun-ounded by a lawful fence : Ibid. 
 
38 
 
 ANIMALS — APPEAL. 
 
 Sale of distrained animals. 
 
 19. The servant of a land owner, who dis- 
 trains stock as agent of such owner, may 
 justify as such agent, in an action of re- 
 plevin brought against him to recover the 
 stock : Bearinger v. O'Hare, 26-259. 
 
 20. Sale of distrained animals: The 
 statute (Code, § 1447) does not contemplate 
 that the officer making a sale of distrained 
 animals shall have a process in order to make 
 the sale provided for : Dolby v. Wolf, 14-228. 
 
 21. Hearing before fence Tiewers: Upon 
 the hearing before fence viewers to assess 
 the damages caused by stock running at 
 large, the question as to whether the stock 
 was improperly at large, as well as the 
 amount of damage done, is before the fence 
 viewers, and such question may also be con- 
 sidered on appeal f i-om their action : Diiffees 
 V. Judd, 48-356. 
 
 22. Estrays: An estray is an animal whose 
 owner is unknown, and therefore a person 
 cannot take up an animal as an estray when 
 the owner of such animal is known to him. 
 In such case the owner may replevin with- 
 out tendering costs : Walters v. Qlats, 89-437. 
 
 23. By Code, § 1464, relating to what ani- 
 mals may be taken up as estrays, a distinc- 
 tion is contemplated between a broken and 
 an unbroken animal. The former may be 
 taken up if running in the highway : Knud- 
 son V. Gieson, 38-234. 
 
 24. An animal stolen from its owner and 
 afterwards abandoned by the thief may 
 lawfully be treated as an estray, especially 
 under the language of Code, § 1456 : Kinney 
 V. Roe, 70 . 
 
 25. The sole object of the notice to the 
 officer provided by Code, § 1520, in case of 
 estrays, is to advise the owner of the prop- 
 erty, when examining the estray book, of the 
 loss or accident, and when he has actual 
 knowledge of the loss without such notice 
 tliere is no necessity for it: Hoiues v. Car- 
 ver, 3-357. 
 
 26. Dogs may be personal property and 
 have value, and such value may be shown 
 in an action for injury thereto: Anson v. 
 Dwight, 18-341. 
 
 21. Aside from the statutory provision 
 (Code, § 1485), a person who has in his charge 
 a vicious dog, knowing his character, and 
 fails to restrain him, is absolutely hable for 
 an injury inflicted. It makes no difference 
 
 whether the person has charge of the ani- 
 mal as owner or only bailee : Marsel v. Bow- 
 man, 63-57. 
 
 28. A person who has a dog in his posses- 
 sion or harbors him on his premises, as 
 owners usually do with their dogs, is to be 
 considered the owner within the meaning of 
 the statutory provision (Code, § 1486; de- 
 claring such owners liable for damages com- 
 mitted by dogs. In determining the ques- 
 tion of ownership the jury must consider 
 the party's former treatment of the animal, 
 his declarations concerning him, and the 
 habits of the dog as to staying at such per- 
 son's place : O'Harra v. Miller, 64-462. 
 
 29. To justify the killing of a dog, caught 
 in the act of worrying or kUling sheep, etc. , 
 or attacking or attempting to bite any per- 
 son, as provided in Code, 5) 1485, the dog 
 must be not only trespassing, but actually 
 engaged in one of the acts mentioned : Mar- 
 shall V. Blackshire, 44r-475. 
 
 APPEAL. 
 
 I. Eight of appeal and waivee thereof. 
 
 n. FEOM what JUDaMENTS, OEDEES, ETC., 
 APPEALS ARE ALLOWED. 
 
 a. Final judgments or decisions. 
 
 b. Final orders in special proceedings. 
 
 c. Intermediate orders. 
 
 III. Amount in conteoveest necessary 
 
 TO authorize APPEAL; CERTIFI- 
 CATES : interest in real estate. 
 
 a. Amount in controversy. 
 
 b. Certificate as to question involved. 
 
 c. Oases involving an interest in real 
 
 estate. 
 rv. What questions will, and what 
 will not, be consideeed on 
 
 APPEAL. 
 
 1. Questiotis not raised in court below. 
 
 2. How questions are sufficiently 
 
 raised. 
 
 a. Motion in court below to correct 
 
 error. 
 
 b. Motion for new trial. 
 
 c. Finding of facts. 
 
 Exceptions, when necessary, 
 how taken, see Exceptions. 
 8. What the record must show in 
 order that a question may be 
 reviewed. 
 
APPEAL, I. 
 
 39 
 
 Right of. 
 
 v. What will, and what will not, wak- 
 
 EANT EEVEESAL. 
 
 a. Presumption of regularity. 
 
 b. Error without prejudice; what is 
 
 and what is not; effect of. 
 
 c. Action of lower court in granting 
 
 or refusing new trial. 
 
 d. Verdict of jury. 
 
 e. Finding of facts by court. 
 
 f. Finding of facts by referee. 
 
 g. Judgment without finding of facts. 
 
 VI. Procedure. 
 
 a. Parties. 
 
 b. Time for appeal. 
 
 c. Perfecting the appeal; notice; su- 
 
 persedeas bond, etc. 
 
 d. Effect of appeal upon pending pro- 
 
 ceedings. 
 
 e. The record; transcript, 
 t. The abstract. 
 
 g. Assignment of errors, 
 h. Argument. 
 
 VII. Hearing and determination of the 
 
 APPEAL. 
 
 a. Dismissal or affirmance on motion, 
 
 b. Methodof trial of appealin special 
 
 proceedings. 
 
 c. Affirmance or reversal in general; 
 
 remanding; final judgment. 
 
 d. Trial of equity cases de novo. 
 
 e. Rehearing. 
 
 f. Effect of appeal upon proceedings 
 
 below. 
 
 g. Pules, and exercise of powers. 
 
 As to appeals in criminal cases, see Crim- 
 inal Law, III, 14. 
 
 As to appeals from justices' courts, see 
 Justices of the Peace, V. 
 
 Appeals from various officers and boards 
 are treated under the titles in which the pro- 
 ceedings themselves are discussed. 
 
 As to the jurisdiction and organization of 
 the supreme court, see Courts, I, a. 
 
 As to appeals from the state supreme court 
 to the supreme court of the United States, 
 see Courts, §§ 68-72. 
 
 I. Right of appeal and waivbe 
 
 THEREOF. 
 
 1. Must .afflruiSitiTely appear: The su- 
 preme court can entertain an appeal only 
 when a judgment has been rendered from 
 which an appeal may be taken. The judg- | 
 
 ment must be affirmatively shown, and the 
 court wiU dismiss the case where it does not 
 appear that such judgment has been ren- 
 dered, even though the parties fail to present 
 the objection ; for, being jurisdictional in its 
 nature, the parties cannot waive it by silence 
 or consent : Crreen v. Rouen, 59-83 ; Groves 
 V. Richmond, 58-54. 
 
 2. Where the record shows a verdict to 
 have been rendered, but does not show that a 
 judgment has been entered thereon, the ap- 
 peal should be dismissed: Heath v. Cfroce, 
 10-591 ; Pittman v. Pittman, 56-769. 
 
 3. By what law determined: The right of 
 appeal is governed by the law in force at the 
 time judgment was rendered : Rivers v. Cole, 
 38-677; Davenport v. Davenport <& St. P. R. 
 Co., 87-634. 
 
 4. Another remedy: The fact that there 
 is another remedy for the error complained 
 of does not take away the right of appeal 
 from an erroneous judgment or decision in 
 cases where an appeal is authorized : Wilson 
 V. Shorick, 21-882. 
 
 5. Waiver by accepting benefits; estop- 
 pel : A party who accepts the benefits of as 
 adjudication, so far as favorable to him, 
 thereby waives his right to appeal therefrom ; 
 Buena Vista County v. Iowa Falls & S. C. R. 
 Co., 55-157 ; Independent Dist. v. District T'p, 
 44r-201; Mississippi & M. R. Co. v. Bying- 
 tcm, 14r-573. 
 
 6. The acceptance of a portion of the 
 judgment admitted to be due will not waive 
 the right to appeal from a part of the judg- 
 ment claimed to be erroneous : Upton Mfg 
 Co. V. Huiske, 69-557. 
 
 7. If the right of appeal has been waived 
 the appeal will be dismissed on motion: 
 Independent Dist. v. District T'p, 44-201. 
 
 8. Whether such question can be raised 
 by motion after the appeal has been deter- 
 mined, doubted; but under the peculiar facts 
 of a partioulai' case, held, that there had been 
 no such acceptance of benefits as to consti- 
 tute a waiver : Crane v. Guthrie, 48-693. 
 
 9. Acceptance of fine: Under a statute al- 
 lowing to the prosecution an appeal from the 
 action of a justice of the peace in criminal 
 cases, held, that the acceptance by the county 
 treasurer of the fine imposed by the justice 
 would not deprive the state of the right to 
 appeal: State v. Tait, 23-140. 
 
40 
 
 APPEAL, I, II, a. 
 
 Eight of. — From what judgments, orders, etc. — Filial judgments. 
 
 10. Payment of judgment: A party who 
 has paid a judgment against him cannot 
 afterward appeal from such judgment: 
 Borgalthous v. Farmers', etc., Ins. Co., 36- 
 250. 
 
 11. An appeal cannot be maintained after 
 the judgment complained of has been satis- 
 fied, if such satisfaction is made solely for 
 the purpose of relieving property from the 
 lien of such judgment. Such a satisfaction 
 must be considered voluntary : Hipp v. Cren- 
 shaw, 64-404. 
 
 12. Involuntary payment; under protest: 
 Payment of the judgment, to prevent its 
 satisfaction by sale of real property under 
 execution which has already been levied 
 thereon, will not constitute such voluntary 
 payment as to defeat the right to appeal: 
 Grim v. Semple, 39-570. 
 
 13. So held, also, as to payment made after 
 the taking of appeal and under protest' to 
 prevent sale of property under special execu- 
 tion : Burrows v. Stryker, 45-700. 
 
 14. Acceptance of tender: Where the 
 amount of a tender was paid into court and 
 judgment was rendered for plaintiff for that 
 amount, from which he appealed, claiming 
 an additional sum as interest, and plaintiff, 
 after the announcement of the judgment and 
 signing of the bill of exceptions, had ac- 
 cepted the amount of the tender, held, that 
 the right of appeal was not thereby waived : 
 Dudman v. Earl, 49-87. 
 
 15. It will not amount to a waiver of an 
 appeal that money paid in to the clerk by 
 the opposite party is applied in part by the 
 clerk in satisfaction of a claim for an attor- 
 ney's lien, without the knowledge of ap- 
 pellant, where he, as soon as he becomes 
 awai-e of the fact, repudiates the transaction, 
 and pays back to the clerk the amount so 
 paid in : Jewell v. Reddington, 57-93. 
 
 16. Change of venue by consent: Where, 
 after perfecting his appeal from a judgment, 
 the party consented to a transfer of the case 
 to another court for trial, held, that the ap- 
 peal was thereby waived : Lillie v. Skinner 
 46-329. 
 
 17. Issuance of execution: The issuance 
 of execution after perfecting the appeal and 
 filing transcript and abstract in supreme 
 court, on which execution nothing was real- 
 ized, held not to be a waiver of the appeal, 
 
 on which the appeal would be dismissed on 
 motion : Hornish v. Peck, 53-157. 
 
 18. Filing transcript in another connty: 
 The right to appeal is not waived by filing 
 transcripts of the judgment in other coun- 
 ties so as to make it a lien on property in 
 such counties : Tama County v. Melendy, 55- 
 395. 
 
 19. Action to enjoin judgment: An action 
 in equity to enjoin the collection of a judg- 
 ment waives the right to appeal from such 
 judgment : Gordon v. Ellison, 9-317. 
 
 20. The bringing of a second action 
 waives any error in dismissing a former ac- 
 tion brought for the same indebtedness: 
 Ibid. ; Liebuck v. Stahle, 66-749. 
 
 21. Judgment procured by the party ap- 
 pealing: A party will not be allowed to ap- 
 peal from a judgment which he caused to 
 be rendered on his own motion : Hughes v. 
 Feeter, 23-547. 
 
 22. Taking stay of execution is, by stat- 
 ute (Code, § 3063), made a waiver of the 
 right to appeal : Seacrest v. Newman, 19-333. 
 
 II. FeoM "WHAT JUDGMENTS, OEDEES, 
 ETC., APPEALS AEE ALLOWED. 
 
 a. Final judgments or decisions. 
 
 23. Forfeiture of bail bond: An order 
 declaring a bail bond forfeited, and taxing 
 costs to defendant, is a final judgment in 
 such sense that an appeal may be taken there- 
 from : State v. Conneham, 57-351. 
 
 21. A decree in a partition proceeding, 
 settling the rights and interests of the par- 
 ties, is final in its nature, and may be ap- 
 pealed from before the division of the prop- 
 erty in accordance therewith is actually 
 made : Williams v. Wells, 62-740. 
 
 25. Decree for an accounting: Where, in 
 an equitable action, plaintiff sought to have a 
 deed set aside and also asked to have an ac- 
 counting, and a decree for a reconveyance 
 was made with an order of reference for an 
 accounting, held, that an appeal from the de- 
 cree for reconveyance might be taken, and 
 that therefore an appeal from the decree for 
 accounting would not bring up the question 
 as to the correctness of the decree for recon- 
 veyance: McMurray v. Day, 70 . 
 
 2G. Told judgment: The fact that a judg- 
 ment is entered wholly without authority. 
 
APPEAL, II, b, c. 
 
 41 
 
 Final orders. — Intermediate orders. 
 
 as, for instance, by a person not qualified as 
 judge, before whom the trial is had by con- 
 sent, will not prevent the correction of the 
 error on appeal, although the judgment 
 itself is absolutely void: Petty v. Durall, 4 
 G. Gr., 120. 
 
 27. Judgment by det'uiilt: An appeal may 
 be taken from a jxidgment by default : Doo- 
 little V. Shelton, 1 G. Gr., 371; Woodward v. 
 Whitescarver, 6-1. 
 
 28. An order denying to the district at- 
 torney the right to appear for the county, 
 where the county is a party, is a decision 
 from which an appeal may be taken : Clark 
 V. Lyon Goimty, 37-469. 
 
 29. Arrest of judgment: An order of 
 court arresting judgment is not such a final 
 judgment as that an appeal may be taken 
 therefrom: Wallis \\ Sparks, Mor., 20. 
 
 30. An order punishing for contempt 
 cannot be reviewed by appeal. The method 
 of revision is by certiorari. (See Code, 
 g 3499) : Dunham v. State, 6-245. 
 
 31. This special provision controls the gen- 
 eral provision as to appeals, and extends to con- 
 tempts by disobedience of injunction, as well 
 as other process : First Cong. Church v. Mus- 
 catine, 2-69. 
 
 32. When cross-bill is pending: An ap- 
 peal may be taken from a decree which de- 
 termines the rights of the parties to property 
 in controversy, even though a cross-biU be 
 still pending : Lucas v. Pickel, 30-490. 
 
 33. Ministerial act: Under a statute al- 
 lowing an appeal from ' ' all decrees and de- 
 cisions of the county court," held, that an 
 appeal could not be taken from the mere 
 ministerial act of the county judge : Kennedy 
 V. Cress, 19-43. 
 
 b. Final orders in special proceedings. 
 
 34. Order vacating a judgment: A final 
 order in a proceeding to vacate a judgment 
 for fraud is a "final order in a special pro- 
 ceeding, affecting a substantial right therein,'" 
 from which an appeal may be taken (Code, 
 § 3164): Dryden v. Wyllis, 51-534. 
 
 35. Certiorari proceeding: An appeal 
 will lie in a certiorari proceeding from a 
 decision granting the writ and ordering a 
 stay of proceedings in the court to which the 
 writ issues : Iske v. Newton, 54-586. 
 
 3C. Eerocation of permit to sell liquor: 
 
 An order of a district judge, made under 
 Code, § 1535, revoking a permit to sell intox- 
 icating liquors, is a final order in a special 
 proceeding, affecting a substantial right, 
 from which an appeal may be prosecuted: 
 State V. Schmidte, 65-556. 
 
 0. Intermediate orders. 
 
 37. Must affect the merits: An appeal 
 will not lie from an intermediate order or 
 ruling, as upon questions of isractice or the 
 admission or exclusion of evidence, but only 
 from such judgments or orders as determine 
 the rights of the parties to the relief 6r rem- 
 edy asked, or to a substantial right as to the 
 course of proceedings, whereby the cause is 
 determined or is tried in a manner not author- 
 ized bj' law. The decision appealed from 
 must be one affecting the merits of the case. 
 (Explaining McCoy v. Julien, 15-371): Mich- 
 ards V. Burden, 31-305. 
 
 38. Erroneous action of the lower court in 
 allowing a party to introduce additional evi- 
 dence, when an equity case is remanded to 
 the lower court for a decree in harmony with 
 the opinion of the supreme court, is not a rul- 
 ing so materially affecting the final decision 
 as to authorize an appeal therefrom before 
 final decision is i-endered. It cannot be said 
 that there will necessarily be an adjudicar 
 tion against the party complaining by reason 
 of such error: Qarmoe v. Sturgeon, 67-700. 
 
 39. Continnance: An order of continuance 
 is a mere intermediate order, not materially 
 affecting the merits, and an appeal does not 
 lie therefrom: Jaffray v. Thompson, 6-5-323. 
 
 40. A finding of facts, even though con- 
 sidered as an intermediate order, is not con- 
 sidered as so far prejudicial to the substantial 
 rights of the party to whom it is adverse that 
 an appeal can be taken therefrom before final 
 judgment: Boyce v. Wabash R. Co., 63-70. 
 
 41. Order as to prosecution in disbar- 
 ment : The ruling of the court in a disbarment 
 proceeding, in refusing to compel a member 
 of the bar to prosecute the case, is not such 
 as that an appeal can be taken therefi-om: 
 Byington v. Moore, 70 . 
 
 42. Setting aside order: The sustaining 
 of a motion to set aside an order made in a 
 case directing the payment of a sum of money 
 
42 
 
 APPEAL, II, c. 
 
 Intermediate orders. 
 
 from one party to the other, held to be a rul- 
 ing from which an appeal might be taken : 
 Guthrie v. Guthrie, 71 . 
 
 43. The ruling on a motion to suppress 
 depositions cannot be reviewed on appeal 
 before final judgment: Baldwin v. Mayne, 
 40-687. 
 
 44. Change of venue: Appeal cannot be 
 taken from an order granting or refusing a 
 change of venue: Allerton v. Eldridge, 56- 
 709. 
 
 45. On such an appeal the supreme court 
 acquires no jurisdiction, and will refuse to 
 entertain the case, although no objection on 
 that ground is made by either pai-ty: Groves 
 V. Richmond, 58-54. , 
 
 4(>. Where the court has jurisdiction of the 
 subject-matter and of the parties, the fact 
 that the action is brought in the wrong- 
 county will not render the overruling of a 
 motion for a change of venue such ruling as 
 may be reviewed upon appeal before final 
 judgment : Hordk v. Horak, 68-49. 
 
 47. But where the motion for change of 
 venue was treated as raising the question 
 whether the action on a bail bond was 
 properly brought in the county where the 
 suit was commenced, and by that county, for 
 the use of the school fund, or whether it 
 should not have been brought in and by an- 
 other county, held, that the decision- of that 
 question would be treated in the same man- 
 ner as though made upon a demurrer, and an 
 appeal therefrom would be entertained : Lm- 
 eas County v. Wilson, 59-354. 
 
 48. If, however, the ruling upon the motion 
 for change of venue is properly excepted to, 
 an appeal from the final judgment will bring 
 up the ruling for review if ;t was adverse to 
 the party appealing: McCracken v. Webb, 
 36-551; Allerton v. Eldridge, 56-709. 
 
 49. Intermediate order reviewed on ap- 
 peal from final judgment: In general, error 
 in intermediate orders upon questions of 
 pi'actice, the admission of evidence, etc., 
 from which an appeal cannot be directly 
 taken, may be urged upon appeal from the 
 final judgment : Richards v. Burden, 31-305. 
 
 50. But in such cases, the error in the 
 intermediate order will not be considered un- 
 less the record shows that a final judgment 
 was rendered: Shannon v. Scott, 40-639; 
 Jordan v. Henderson, 19-565. 
 
 51. An intermediate order may be re- 
 viewed on appeal from the final judgment 
 taken w^ithin the proper time after the ren- 
 dition of such judgment, although the time 
 for appeal from such intermediate order 
 separately • has elapsed. The failure to ap- 
 peal from an intermediate order, even when 
 such appeal is allowable, Tvill not waive the 
 right to have such order reviewed on appeal 
 from final judgment: Jones v. Chicago <& 
 N. W.R. Co., 86-68. 
 
 52. An appeal from final judgment brings 
 up for review all intermediate rulings to 
 which exceptions are taken. So held as to a 
 ruling setting aside a default: Palmer v. 
 Rogers, 70 . 
 
 53. An order requiring security for costs 
 cannot be appealed from, but appeal may be 
 taken from an order dismissing an action 
 for failure to give such secui-ity : Des Moines 
 Valley, etc., Ins. Co. v. Henderson, 38-446. 
 
 54. Order not contemplated by law: 
 Where an intermediate order was one which 
 the law did nOt contemplate, held, that it 
 would be presumed that such order would 
 not affect the final decision, and an appeal 
 therefrom would not lie : Battell v. Lowery, 
 46-49. 
 
 55. Ruling on demurrer: An appeal may 
 be taken from the ruling on a demurrer if 
 the party against whom the ruling is made 
 excepts and elects to stand on his demurrer 
 or pleading,. as the case may be. It is not 
 necessary that it appear that final judgment 
 has been rendered : Cowen v. Boone, 48-350. 
 
 But if the party pleads over or amends, he 
 thereby waives any error in the ruling. See 
 Pleading, XIV, e. 
 
 56. A plaintiff, to whose petition a demur- 
 rer has been sustained, has the right to ap- 
 peal, unless it appears that such right has 
 been in some manner waived : Hampton v. 
 Jones, 58-317. 
 
 57. An appeal may be taken from the ac- 
 tion of the court in overruling plaintiff's de- 
 murrer to defendant's answer and dismissing 
 the action upon plaintiff's refusing further to 
 plead, and giving a judgment for costs 
 against plaintiff : Arnold v. Kreutzer, 67-314. 
 
 68. Motion to strike: A ruling striking 
 matter from a petition on motion, thus pre- 
 venting plaintiff from introducing evidence 
 of matter thus alleged, may be reviewed by 
 
APPEAL, II, c; III. 
 
 43 
 
 Amount in controversy. 
 
 appeal before final judgment: Stanley v. 
 Davenport, 54-463. 
 
 59. The fact that the cause is still pending 
 below does not prevent the supreme court 
 from determining an appeal from an inter- 
 mediate order involving the merits : Ibid. 
 
 60. A refusal by the court to sustain a mo- 
 tion to strike out a part of a petition not de- 
 signed to show a distinct cause of action is 
 not a ruling from which direct appeal wUl 
 lie: Speoht v. Spangenberg, 70 . 
 
 61. The ruling on a motion to strike a 
 petition of InterTention from the files on 
 the ground that the original action had been 
 settled, held, to be an intermediate order 
 from which an appeal would lie : First Nat. 
 Bank v. Gill, 50-425. 
 
 62. Ad quod damnum: An appeal in an 
 ad quod damnum proceeding from a decis- 
 ion of the court overruling a motion to set 
 aside the verdict and quash the writ, held 
 proper without final judgment being ren- 
 dered: Bumhamii. J%ompson, 35-421. 
 
 63. Dissolution of attachment: An ap- 
 peal lies from an order dissolving or sustain- 
 ing an attachment : Johnson v. Butler, 1-459. 
 
 64. But such appeal does not bring up the 
 main case for review, except so far as mate- 
 rial to the understanding and disposition of 
 the order from which the party appeals: 
 Berry v. Gravel, 11-135. 
 
 65. Judgment against garnishee: An ap- 
 peal may be taken from a judgment against 
 a garnishee : Bebb v. Preston, 1-460. 
 
 66. Dissolution of injunction: An appeal 
 will lie from the action of a court in dissolv- 
 ing an injunction granted by a judge in va- 
 ■cation (although at that time the action of 
 the judge in granting it could not be re- 
 viewed) : Trustees v. Davenport, 7-313. 
 
 67. The action of a judge alloAviug or re- 
 fusing an injunction in vacation may be re- 
 viewed by appeal therefrom (an express statu- 
 tory provision having changed' the law under 
 which Monticello Bank v. Smith, 25-248; 
 Jewett V. Squires, 30-92 ; In re Curley, 34^184, 
 and other cases, were decided) : Bennett v. 
 Metherington, 41-143. 
 
 68. Appointment of receiver: An appeal 
 may be taken from an order appointing or 
 refusing to appoint a receiver: Callananv. 
 Shaw, 19-183. 
 
 69. Kecomraitment of cause to arbitra- 
 tors : An order recommitting a cause to ar- 
 bitrators is a decision from which an appeal 
 lies : Brown v. Harper, 54-546. 
 
 70. Substitution of other defendants: An 
 order of court substituting other defend- 
 ants in a case and releasing the original de- 
 fendants may be appealed from, and such 
 appeal may be prosecuted even though after 
 such substitution the new defendants have 
 procured a transfer of the case to the circuit 
 court of the United States : Suriberg v. Dis- 
 trict Court, 61-597. 
 
 71. Dismissal of appeal from justice's 
 court: Where, in an appeal to the circuit 
 court from the judgment of a justice of the 
 peace, a motion was made to dismiss the ap- 
 peal for want of jurisdiction on the ground 
 that the amount in controversy was not suf- 
 ficient, held, the action of the court in over- 
 ruling such motion and taking jurisdiction 
 was a determination affecting the final i-esult, 
 and that an appeal therefrom might be taken : 
 Curran v. Excelsior Coal Co., 63-94. 
 
 72 : Dismissal of habeas corpus proceed- 
 ings: Under a statute authorizing an appeal 
 from a county court to the district court, upon 
 the merits, of any matter affecting the rights 
 and interests of individuals, held, that an 
 order of the county court overruling a motion 
 to dismiss proceedings under a writ of habeas 
 corpus, was not a final judgment from which 
 an appeal would lie : Smith v. Bigelow, 19-459. 
 
 III. Amount in conteoveest neces- 
 
 SAET TO AUTHOEIZE APPEAL; 
 CEETIFICATES ; INTEEEST m EEAL 
 ESTATE.^ 
 
 a. Amount in controversy. 
 
 73. Determined by the pleadings: To 
 
 justify an appeal it must appear from the 
 pleadings that it was possible for the court, 
 consistently therewith, to render judgment 
 
 * Code, § 3173. . . . But no appeal shall be taken in any cause in Tvliicli the amount in controversy between 
 the parties, as shown by the pleadings, does not exceed one hundred dollars, unless the trial judge shall certify 
 that such cause involves the determination o£ a question of law upon which it is desirable to have the opinion 
 of the supreme court, but this limitation shall not affect the right of appeal in any cause in which is involved 
 -any interest in real property. 
 
44 
 
 APPEAL, III, a. 
 
 Amount in controversy. 
 
 against one of the parties to the action for 
 more than one hundred dollars : Madison v. 
 Spitznogle, 58-369. 
 
 74. When the amount in controversy ap- 
 pears by the pleadings to exceed one hundred 
 dollars an appeal may be taken, and it is 
 immaterial that, upon the trial, the evidence 
 does not support the claim to that amount : 
 Ormsby v. Nolan, 69-130. 
 
 75. The allegations and not the prayer 
 of the pleading govern in determining the 
 amount in controversy: Cooper v. Dillon, 
 56-367. 
 
 76. The amonnts of the original claim 
 and a counter-claim cannot be added to- 
 gether in determining the amount in contro- 
 versy under this section : Madison v. Spitz- 
 nogle, 58-369 ; Fox v. Duncan, 60-331. 
 
 77. 'Where defendant concedes a part of 
 the claim, the amount in controversy is the 
 part not admitted : Thompson v. French, 57- 
 559. 
 
 78. Tender: Thus, if by tender defendant 
 reduces the amount of plaintiflE's claim which 
 is contested to not exceeding one hundred 
 dollars, there can be no appeal vrithout a cer- 
 tificate : Marlow v. Marlow, 56-399. 
 
 79. If plaintiff's claim is admitted and a 
 counter-claim interposed, the counter-claim 
 determines the amount in controversy : Alsip 
 V. Hard, 38-697. 
 
 80. Where defendant claims a credit of 
 more than one hundred dollars on a claim for 
 less than that amount, but does not inter- 
 pose a counter-claim, the amount in contro- 
 versy does not exceed the plaintiff's claim : 
 Kurtz V. Hoffman, 65-360. 
 
 81. Part of claim abandoned : Where the 
 plaintiff claims more than one hundred dol- 
 lai'S, but no evidence is introduced in support 
 of a part of it, so that such part may be 
 deemed abandoned, such part will not be 
 considered in determining the amount in 
 controversy: Ibid. 
 
 82. Consolidation of actions: Where an 
 appeal from a judgment in a justice's court 
 was consolidated with another action pend- 
 ing in the circuit court, so that the aggregate 
 amount in controversy exceeded one hundred 
 dollars, lield, that there might be an appeal : 
 Brock V. Barr, 70 . 
 
 83. Interest on judgment included: 
 Where an action to set aside a previous judg- 
 
 ment for one hundred dollars and costs was 
 brought a year after the rendition of such 
 judgment, held, that the interest accrued on 
 the judgment would be included in deter- 
 mining the amount in controversy : Dryden 
 V. Wyllis, 51-534. 
 
 84. Where writ of error ^^■aa brought in 
 the cu-cuit court to review the judgment of a 
 justice of the peace for one hundred dollars, 
 held, that interest accrued on the judgment 
 before suing out the writ of error would be 
 included in determining the amount ih con- 
 troversy in the circuit court, and that the 
 amount involved exceeded one hundred dol- 
 lars : Holmes v. Hull, 48-177. 
 
 85. But in case of an appeal from a judg- 
 ment of a justice of the peace for one hundred 
 dollars, held that the amount in controversy in 
 the circuit court was to be determined by the 
 pleadings in the justice's court, and that inter- 
 est on the justice's judgment could not be 
 included: Hays v. Chicago, B. & Q. R. Co., 
 64-593. 
 
 86. Costs taxed in the case and included 
 in the judgment cannot be considered in 
 determining the amount in controversy. 
 That depends upon the pleadings : Hakes v. 
 Dott, 54r-ll ; Bradenberger v. Rigler, 68-300. 
 
 87. Costs iu justice's court: In an appeal 
 from the action of a circuit court on appeal 
 from a judgment before a justice of the 
 peace, the costs in the justice's court cannot 
 be included in determining the amount in 
 controversy in the circuit court: Ardery v. 
 Chicago, B. & Q. R. Co., 65-783. 
 
 88. In an action of replevin wherein de- 
 fendant does not claim ownership of the 
 property but only an interest therein, less 
 than one hundred dollars in value, such in- 
 terest and not the entire value of the prop- 
 erty determines the amount iu controversy : 
 Mohme v. Livingston, 54-458 ; Davis v. Up- 
 right, 54^753. 
 
 89. Appeal dismissed: Where the amount 
 in controversy does not exceed one hundred 
 dollars, and there is no Certificate of the 
 judge, the appeal will be dismissed: Har- 
 rington V. Pierce, 38-360. 
 
 80. Amount must appear, to defeat juris- 
 diction : As the supreme court has appellate 
 jurisdiction in every case not falling within 
 the exception of the statutory provision as to 
 amount in controversy, the fact as to 
 
APPEAL, III, b. 
 
 45 
 
 Certificate as to question involved. 
 
 the amount to bring a case within the ex- 
 ception and defeat the jurisdiction of the 
 supreme court on appeal, must affirmatively 
 appear: Babcoch v. Board of Equalization, 
 65-110 ; Henkle v. Keota, 68-334. 
 
 b. Certificate as to question involved. 
 
 91. Must state the question: It is not suf- 
 ficient that the certificate of the judge states 
 that the case "involves the determination of 
 a question of law," etc., but it must state the 
 question of law upon which the decision of 
 the supreme court is desired. (So held in 
 pursuance of a rule of court requiring the 
 question to be set out, overruling in this re- 
 spect Fell V. Burlington, O. B. & M. R. Co., 
 43-177, decided before the adoption of such 
 rule.) If the question is not thus set out 
 where a certificate is necessary, the appeal 
 will be dismissed : King v. Derby, 51-11 ; Wetz 
 V. Austin, 51-342 ; Minniah v. Chicago, R. I. 
 & P. R. Co., 51-363 ; Throckmorton v. Horton, 
 58-737 ; Dawley v. Houck, 53-733. 
 
 92. And such rule of the court is not void 
 as limiting the jurisdiction of the court 
 further than authorized by statute : Wilson 
 V. Iowa County, 53-339. 
 
 93. The question must be one of law, as 
 distinguished from one of fact, and the 
 certificate must specifically point out the 
 questions of law, which must not be mingled 
 with questions of fact : Oilloohy v. Chicago, 
 M. & St. P. R. Co., 61-53. 
 
 94. It is not sufficient that the certificate 
 states that " a question " is involved ; it must 
 state that the case involves " a question of 
 law:" Kierulffv. Adams, 40-31. 
 
 95. Questions presented in a particular 
 case held not to be questions of law : Landers 
 V. Boyd, 59-758. 
 
 96. Mere abstract questions: The statute 
 does not contemplate that mere abstract 
 questions of law shall be certified, but only 
 such as are decisive of the case : Eckert v. 
 Pickel, 59-545. 
 
 97. Certificate must intelligibly state 
 the questions without the record : The cer- 
 tificate must point out the questions upon 
 which it is desirable to have the opinion of 
 the court in such a way as to be inteUigible 
 in and of themselves, without requiring the 
 court to examine the whole case and deter- 
 
 mine what the questions are : Hawkeye Ins. 
 Co. V. Lewis, 63-514. 
 
 98. The certificate must be sufficiently ex- 
 plicit and definite to explain itself without 
 reference to the record or any part of it: 
 Meeker v. Chicago, M. <& St. P. R. Co., 
 64-641; White v. Beatty, 64-381; Bower v. 
 Kavanaugh, 62-757. 
 
 99. The questions certified should embrace 
 statements of the specific facts which are to 
 be taken into consideration by the court ; it 
 is not sufficient to refer generally to the facts 
 as shown by the evidence : Brown v. Petrie, 
 56-309. 
 
 100. A certificate of the judge which fails 
 to indicate the specific question or questions 
 to be determined, but presents the whole 
 case and every question involved therein, 
 without showing what they are, or what one 
 or more of them it is deemed desirable to pre- 
 sent for determination, is not sufficient: 
 Dunn V. Zoller, 61-337. 
 
 101. The certificate must contain the ab- 
 stract question of law which it is desired the 
 supreme court shall determine. It will not 
 make an examination of the record in order 
 to determine what ruling it is desired to re- 
 view: Buchanan County Bank v. Cedar 
 Rapids, I. F. & N. W. R. Co., 63-494; Long 
 V. Chicago, M. & St. P. R. Co., 64-541. 
 
 102. A question of law should be plainly 
 set out in the certificate : McLenon v. Kansas 
 City, St. J. & C. B. R. Co., 69-330. 
 
 103. The certificate should point out the 
 question to be determined and recite the 
 facts upon which the question of law arises, 
 so that it may be determined without resort- 
 ing to the evidence in the case. It is not suf- 
 ficient to refer the court to the record and 
 ask it to determine whether there was error 
 in particular matters : Ibid. 
 
 104. The certificate must set out and de- 
 fine the question which it is thought de- 
 sirable to have determined, and the question 
 set out should be so explicit as to render an 
 examination of the record unnecessary : Ben- 
 nett v. Parker, 67-451. 
 
 105. It is not proper to certify a general 
 question which cannot be fuUy determined 
 without a search of the entire record and a 
 determination of two or more questions: 
 Wlieaton v. Foster, 58-661. 
 
 106. Where the certificate stated that there 
 
46 
 
 APPEAL, m, b. 
 
 Certificate as to question involved. 
 
 was a question of law involved in certain in- 
 stnictions which involved more than one 
 question, and did not point out which one it 
 was desired to have determined, hdd, that it 
 was not sufficient : Oregg v. White, 55-744. 
 
 107. While it was not the intent that only 
 a single question should be certified, the sev- 
 eral questions must be so stated that the 
 supreme court can readily ascertain the 
 point to be determined, and that it is a ques- 
 tion of law. Questions of law and fact can- 
 not be mingled together under the guise of a 
 question of law : Centerville v. Drake, 58-564. 
 
 108. The certificate in a particular case 
 held sufiicient : Nichols v. Wood, 66-325. 
 
 109. Examination of tlie recoi-d: The 
 court will sometimes look at the record for 
 the purpose of determining whether the ques- 
 tion certified properly arises in the case, and 
 will refuse to consider the question if it ap- 
 pears that it has not been properly raised: 
 Swailsv. Cissna, 61-693; McLenon v. Kansas 
 City, St. J. & O. B. B. Co., 69-320. 
 
 110. The court will not, upon a certificate, 
 consider an instruction differing from that 
 which appears by the record to have been 
 given in the case : Cunningham v, Chicago, 
 B. & Q. B. Co., 67-514. 
 
 111. The court cannot answer questions 
 cei-tified, but which are not presented in the 
 record : Ibid. ; Miller v. Buena Vista County, 
 68-711. 
 
 112. And the court wUl not consider a cer- 
 tificate sufiiciently specific which requires 
 examination of the record to determine what 
 the question certified is: Votaw v. Corwin, 
 63-39. 
 
 113. Certificates held defective: A cer- 
 tificate of a question as to whether judg- 
 ment could be rendered for a party "upon 
 the agreed statement of facts filed in the 
 case," held not sufficient: Dawley v. Souck, 
 53-733. 
 
 114. Held, in a particular case, that the 
 certificate did not sufiiciently point out the 
 question of law upon which the opinion of 
 the supreme court ^as desired: Fitch v. 
 Flynn, 58-159. 
 
 115. In cases which come before the 
 supreme court only upon a question certified 
 by the judge of the lower court, the supreme 
 court has jurisdiction only to determine such 
 questions of law as may be certified. If the 
 
 question certified is one of fact, it cannot be 
 determined : Hanna v. Collins, 69-51. 
 
 110. Must set out question: A certificate 
 which does not set out the question of law 
 upon which it is desirable to have the opinion 
 of the supreme court, is not sufficient: 
 Bradenlierger v. Rigler, 68-300. 
 
 117. A certificate is hot sufficient which 
 asks whether certain action was erroneous 
 "in view of all the evidence in the case:" 
 Oillooby V. Chicago, M. & St. P. B. Co., 
 61-53. 
 
 118. Where the appellant's abstract failed 
 to show that the judge's certificate stated 
 that it was desirable to have the opinion of 
 the supreme court on the question certified, 
 held, that the supreme court did not acquire 
 any jurisdiction by the appeal : Milliken v. 
 Daugherty, 59-294. 
 
 119. Sufficiency of evidence: While the 
 sufficiency of the evidence to support a ver- 
 dict may, in a certain sense, be said to be a 
 question of law, yet it is not such a question 
 as can be certified : Hudson v. Chicago & N. 
 W. B. Co., 59-581. 
 
 1^0. Questions must be such as arise and 
 ai"e argued: It is not the province of the 
 •supreme court to decide questions certified 
 but not argued, nor questions argued but not 
 certified, nor questions certified and argued 
 where it is shown that they do not arise in 
 the case : Spiesberger v. Thomas, 59-606. 
 
 121. Questions not certified: Only such 
 questions as are presented in the certificate 
 wiU be considered : Thorpe v. Dickey, 51-676 ; 
 Miller v. Haley, 66-260. 
 
 122. The supreme court has no jurisdiction 
 in such cases to determine any questions ex- 
 cept those certified : Ardery v. Chicago, B. & 
 Q. B. Co., 65-733. 
 
 123. Questions presumed to liave arisen: 
 Where the question is certified by the trial 
 judge, it will be presumed that it arises in 
 the case unless it is shown affirmatively 
 otherwise : Noble v. Chase, 60-361. 
 
 124. It will be presumed that the facts are 
 correctly found, whether any finding appears 
 of the record or not, unless the contraiy ap- 
 pears : Thorpe v. Dickey, 51-676. 
 
 125. The court will not go back of the 
 record to determine whether an assumption of 
 facts therein is warranted; Miller v. Haley, 
 66-260. 
 
APPEAL, III, b. 
 
 47 
 
 Certificate as to question involved. 
 
 126. Or whether the case involves the 
 question of lavr stated in the certificate : Cur- 
 ran V. Excelsior Coal Co., 63-94. 
 
 127. Presumption as facts; remanding: 
 The presumption being that the court found 
 the fact upon which the question of law is 
 based, and that such fact appeared of record, 
 upon a determination of the question of law 
 the case may be remanded for final judgment, 
 and the party will not be entitled to a further 
 trial unless on account of newly-discovered 
 evidence : Andrews v. Burdiok, 64-693. 
 
 128. Pi'ovisions constitutional; cases in 
 equity: The statutory provision requiring 
 a certificate in cases involving less than the 
 amount named applies to chancery cases as 
 well as actions at law, and as thus applied is 
 not unconstitutional, as depriving a party in 
 such cases of a right of appeal and trial de 
 novo. It amounts simply to a restriction or 
 regulation of appeals in such cases : Andrews 
 V. Burdick, 62-714 ; Johns v. Pattee, 61-393 ; 
 Teager v. Landsley, 69-725. 
 
 129. Time of making certificate: The 
 certificate of the judge must be made at the 
 time of the trial and before the adjournment 
 of the term of court at which the judg- 
 ment is rendered : Fallon v. District T'p, 51- 
 206; Independence v. Purdy, 48-675; Base 
 V. Wheeler, 49-53 ; Lomax v. Fletcher, 40-705 ; 
 Bivers v. Cole, 38-677; Hershfleld v. First 
 Nat. Bank, 39-699 ; Nicely v. Bogers, 39-441. 
 
 ISO. The parties cannot by stipulation pro- 
 vide that the certificate may be made in 
 vacation: Fallon v. District Tp, 51-206. 
 
 131. The certificate must be given at 
 the time of the trial, unless delayed upon 
 order or for cause: Angus v. Shannon, 60- 
 311. 
 
 132. The certificate must be signed by the 
 trial judge at the term at which the case is 
 tried. A signature afterwards made nunc 
 pro tunc will not give the supreme court 
 jurisdiction, even though the failure to sign 
 the certificate at the term was an oversight 
 on the part of the judge: Hinesley v. Ma- 
 haska County, 69-511. 
 
 133. The certificate cannot be properly 
 made until the case is finally disposed of, as 
 by the ruling on a motion vacating a judg- 
 ment and granting a new trial: Hickok v. 
 Buell, 51-635. 
 
 134. The making and filing of a certificate 
 
 during the sa,me term but subsequent to the 
 rendition of judgment is not suflicient; it 
 must be made by the time the final judg- 
 ment is rendered : Foye v. Walker, 62-251. 
 
 135. Where the certificate was filed after 
 judgment, but it did not appear when it was 
 signed, held, that the appeal would be dis- 
 missed : Hakes v. Dott, 54-17. 
 
 13C. Where the certificate was entitled of 
 a proper term, but did not show when it was 
 made, nor that it was made at the time of 
 the trial, or even during the term of the trial, 
 held, that it was not suflicient : Babcock v. 
 Chickasaw County, 60-753. 
 
 137. Where it appears that the certificate 
 was signed at the proper term, it will be 
 presumed that it was also filed in proper 
 time: Long v. Chicago, M. & St. P. M. Co., 
 64^541. 
 
 138. Not a matter of right: The purpose 
 of the law in requiring a certificate in such 
 cases was to prevent appeals in such cases in 
 which the amount is trifling, unless there is 
 an important question of law involved which 
 should be decided in order tliat the decision 
 may serve as a precedent, and the trial judge 
 should not give a certificate unless he deems 
 such question to be involved : Meeker v. Chi- 
 cago, M. & St. P. B. Co., 64-641. 
 
 139. Cannot be stipulated for: The parties 
 cannot stipulate that the judge shall give a 
 certificate in such cases. It is not a right of 
 the unsuccessful party to have the certificate, 
 and it can only properly be made where the 
 judge believes it to be desirable for the 
 proper administration of justice, that some 
 specified question in the case should be 
 settled by the court of last resort : Fallon v. 
 District T'p, 51-306. 
 
 140. Appellant cannot question the cor- 
 rectness of a certificate given by the trial 
 judge, stating the questions on which the 
 opinion of the supreme court is desired. The 
 court is not bound to give any certificate at 
 all, and if the appellant does not get the 
 questions certified which were tried, he is not 
 bound to appeal : Sager v. Adams, 70 . 
 
 141. The certificate is jurisdictional: 
 The sufliciency of the certificate is a juris- 
 dictional matter, and if it is not sufficient 
 the court wiE take notice of it, although the 
 objection is not made; White v. Beatty, 64r- 
 331. 
 
48 
 
 APPEAL, III, c; IV, 1. 
 
 What questions considered. 
 
 c. Oases involving an interest in real 
 estate. 
 
 142. Right of public highway: Where 
 the case involves the right of the public to 
 occupy and use real estate as a highway, an 
 interest in real, estate is involved vcithin the 
 meaning of the statutory provision above: 
 McBumey v. Graves, 66-314. 
 
 143. Establishment of lieu: Thefactthat 
 it is sought to establish a lien, special or 
 general, upon real estate, does not make the 
 case one involving an interest in real prop- 
 erty, authorizing an appeal veithout regard 
 to the amount in controversy : Colyar v. Pet- 
 tit, 63-97 ; Johns v. Pattee, 61-393. 
 
 144. Therefore, held, that an action to fore- 
 close a mechanic's lien was not within the 
 exception : Andrews v. Burdick, 63-714. 
 
 lY. What questions will and what 
 
 WILL NOT BE OONSIDEEED ON APPEAL. 
 
 1. Question not raised in the court 
 * helow. 
 
 145. New objections uot cousidered : An 
 
 objection not made or question not raised in 
 the court below cannot be considered on ap- 
 peal: Dean v. Hall, 4 G. Gr., 435; Hinter- 
 meister v. State, 1-101; Mumma v. McKee, 
 10-107; State v. Groovie, 10-308; Berry v. 
 Gravel, 11-135; Rockwell v. Kimball, 11-534; 
 Elder v. Littler, 15-65; Starry v. Starry, 
 31-254; Kruck v. Prine, 33-570; MoNaught 
 V. Chicago & N. W. B. Co., 80-336; Evans 
 V. Hawley, 35-83; Stanberry v. Dickerson, 
 35-493 ; State v. Cuddy, 40-419 ; Price v. Bur- 
 lington, C. B. <&M. B. Co., 43-16; Trayer v. 
 Beeder, 45-373; Davis v. Nolan, 49-683; 
 Argall v. Pugh, 56-303; Wetmore v. McMil- 
 lan, 57-344; Wire v. Foster, 62-114:; Babcock 
 V. Board of Equalization, 65-110; Goodnow 
 V. Plumb, 67-661. 
 
 146. A iDarty is not to be surprised in the 
 supreme court by new objections and issues 
 not made in the court below, based upon de- 
 fects of which he was not advised by motion 
 or otherwise in the lower court, and which 
 it would have been in his power to remedy 
 had objection been taken thereto in proper 
 tira.e and manner : Patterson v. Stiles, 6-54. 
 
 147. The supreme court has only appellate 
 
 jurisdiction, and can only review and decide 
 questions which have been made in and de- 
 cided by the lower court: McGregor v. Gard- 
 ner, 16-538. 
 
 148. An objection cannot be considered on 
 appeal which is different from that made in 
 the court below : Oliver v. Depew, 14r490. 
 
 149. Where an affidavit is tendered, and 
 the court refuses leave to file it on the ground 
 that if filed it would be insufficient, such re- 
 fusal cannot be supported on the ground that 
 at the time the party offered the same it was 
 not yet sworn to : Adams County v. Burling- 
 ton &M. B. B. Co., 44-335 ; Swan v. Bournes, 
 47-501. 
 
 150. It may be that failure to object to 
 misconduct of the attorney in stating to 
 the jury facts as to which there is no claim 
 that they are shown in the evidence will not 
 deprive the opposite party of his right to 
 raise such objection on appeal: Whitsettv. 
 Chicago, B. I. & P. B. Co., 07-150. 
 
 151. No chauge of base; A party must, 
 on appeal, stand in the posture in which he 
 placed himself in the lower court. He can- 
 not change his base after the appeal: Gar- 
 land V. Wholebau, 30-371. 
 
 152. No new issues: An issue not raised 
 in the, court below cannot be urged for the 
 first time in the supreme court : Latterett v. 
 Cook, 1-1 : Brazelton v. Jenkins, Mor., 15. 
 
 153. The objection to plaintiff's recovery 
 that his claim is within ^he statute of frauds, 
 not having been raised below by demurrer or 
 answer, cannot be raised on appeal: Lower v. 
 Lower, 46-535. 
 
 154. Ruling cannot be supported on 
 ground not urged below: A ground not 
 urged in the court below cannot, on appeal, 
 be relied upon to sustain a ruling of that 
 court, which is erroneous on the gi-ound upon 
 which it is based : Knapp v. Sioux City & P. 
 B. Co., 65-91. 
 
 155. Service of notice: Objections to the 
 service of the notice will not be considered 
 on appeal where the record facts fail to show 
 any ruling thereon in the lower court : Des 
 Moines v. Layman, 31-153. 
 
 156. An objection to jurisdiction not 
 raised in the court below cannot be raised 
 upon appeal unless the record shows the case 
 to be coram non judice: Bridgman v. WU- 
 cut, 4 G. Gr., 563. 
 
APPEAL, IV, 1. 
 
 49 
 
 Question not raised in the court below. 
 
 157. An objection which does not go to 
 the jurisdiction of the court below, but merely 
 to plaintiff's riglit to bring action, will not be 
 considered on appeal unless made in the 
 lower court : Davenport v. Chicago, R. I. <Sk 
 P. R. Co., 38-633. 
 
 158. Although the objection that the court 
 has no jurisdiction of the subject-matter or 
 parties may be raised for the first time in the 
 supreme court, yet if it appears that the 
 lower court had jurisdiction of the pai'ties, 
 but only erred as to the kind of proceedings 
 adopted, the objection cannot be first raised 
 on appeal : Gould v. Hurto, 61-45. 
 
 That such objection is waived unless raised 
 by motion, see Actions, §§ 35-39. 
 
 159. Where it appears that there is a want 
 of jurisdiction in the court below, or where 
 the ruling made is in excess of the authority 
 or power of the court, it is the duty of the 
 supreme court to recognize such want of 
 jurisdiction, even if no objection be made : 
 Oroves v. Richmond, 53-570; St. Joseph 
 Mfg. Co. V. Harrington, 53-380. 
 
 160. An objection to aplendins^not raised 
 by motion or demurrer in the court below, 
 and passed upon by it, cannot be considered 
 on appeal : Ruddick v. Patterson, 9-103 ; Will- 
 iams V. Sill, 12-511 ; Cletvs v. Traer, 57-459 ; 
 Davis V. Burt, 7-56; Gifford v. Ferguson, 
 19-166 ; McCoy v. Cornell, 40-457. 
 
 IGl. So held as to a defect in verification 
 not objected to in the lower court : Moses v. 
 Risdon, 46-251. 
 
 163. Objection that the petition is not 
 sufficiently specific cannot be urged for 
 the first time on appeal: Davis v. Walter, 
 70 . 
 
 163. Objections to the form of the plead- 
 ing cannot be taken for the first time 
 on appeal. If not taken below they will 
 be deemed waived : Willson v. Harris, 68- 
 443. 
 
 164. An objection that the relief granted 
 is not asked in the pleading cannot be raised 
 for the first time on appeal. It should be 
 raised in some manner in the court below, iu 
 order that the party may have opportunity to 
 amend his pleading if defective : Iowa Lum- 
 ber Co. v. Foster, 49-25 ; Williams v. Wilcox 
 66-65. 
 
 165. Issues not raised: Where the parties 
 have themselves tried a case on the theory 
 
 Vol. I — 4 
 
 that the question presented on the trial is 
 raised by the pleadings, the court may prop- 
 erly submit such question to the jury, and a 
 party cannot complain on appeal that no such 
 issue was raised by the pleadings : Hoyt v. 
 Hoyt, 68-703. 
 
 166. Error in granting' change of veune 
 to an improper court will be reviewed on ap- 
 peal, although the party did not, in applying 
 for the chajige, designate the court to which 
 a change was sought: Sayles v. Deluhrey, 
 64^109. 
 
 167. A defense not pleaded in the court 
 below will be disregarded on appeal : Thom- 
 son V. Lee County, 33-306 ; Barlow v. Brock, 
 25-308. 
 
 168. A variance between the allegations 
 and the proofs cannot be first raised on ap- 
 peal : Singer v. Given, 61-93. 
 
 169. Swearing the jury: The supreme 
 court will not disturb a judgment upon the 
 ground that the jury in the cause was not 
 sworn wlien such question was in no way 
 raised in the court below : State v. Schlagel, 
 19-169. 
 
 170. Objections to evidence not raised in 
 the court below cannot be first taken on ap- 
 peal : Johnson v. Miller, 69-563. 
 
 171. If incompetent evidence is not ob- 
 jected to by the prisoner at the time it is 
 produced, its admission cannot afterward be 
 made ground for reversal : State v. McLaugh- 
 lin, 44r-83. 
 
 172. In the absence of objection at the 
 time and a showing of prejudice, the fact 
 that one who read testimony reduced to 
 writing to the jury in a criminal action was 
 not sworn to do so correctly, cannot be urged 
 as an objection on appeal: State v. Poison, 
 39-133. 
 
 173. Aji objection to the competency of a 
 witness not made in the lower court cannot 
 be first urged on appeal : Schmidt v. Littig, 
 69-277. 
 
 174. Evidence which is competent as de- 
 termining the rights of the parties, and which 
 might have been made admissible by the 
 amendment of the pleadings on the trial, if 
 not objected to then, cannot afterwards be 
 objected to in the supreme court on appeal 
 as not admissible under the issues raised by 
 the pleadings: Council Bluffs Lodge v. Bil- 
 lups, 67-674. 
 
50 
 
 APPEAL, IT, 1 
 
 Question not raised in the court below. 
 
 1 75. A party cannot, on appeal, object to 
 evidence on a different ground from that in- 
 terposed in the court below : Liike v. Bruner, 
 15-3; Iowa Homestead Co, v. Duncombe, 51- 
 525. 
 
 176. The record must show that the in- 
 troduction of evidence was objected to upon 
 the same ground urged against it Upon ap- 
 peal : Childs v, McChesney, 20-431, 
 
 1 7 7, A party having alleged one objection 
 to evidence on which it is improperly ex- 
 cluded, cannot, on appeal, allege other 
 objections thereto in support of the action 
 of the court below; Lines v. Lines, 54- 
 600. 
 
 1 78. For instance, under the objection that 
 evidence is incompetent, irrelevant and im- 
 material under the pleadings, he cannot urge 
 that it was imjjroperly admitted in rebuttal : 
 Davidson v. Dwyer, 63-332. 
 
 179. When the admission in evidence by 
 the defendant of a deed void upon its face 
 is objected to on other grounds, which are 
 overruled, the plaintiff may upon appeal offer 
 such objection to its validity, when the 
 record shows that the court found for the 
 defendant solely upon the evidence of 
 the deed, and that plaintiff excepted to 
 this finding and made it a ground of a 
 motion for a new trial : Ferguson v. Heath, 
 31-438. 
 
 180. Objections to instructions: If spe- 
 cific objections are taken to instructions, 
 even though a general objection would have 
 been sufficient, the party cannot raise other 
 objections on appeal : Price v. Burlington, C. 
 R. & M. R. Co., 42-16. 
 
 181. The objection that more than two 
 paragraphs of the instructions are written on 
 the same page, contrary to a statutory direc- 
 tion, cannot be raised for the first time in the 
 supreme com-t : Davenport v. Cummings, 15- 
 319. 
 
 182. Tlie form of tlie judgment cannot be 
 objected to for the first time upon appeal: 
 Barlow v. Brock, 25-308. 
 
 183. Where there is but a general excep- 
 tion to a judgment below, and the court is 
 not asked by motion or otherwise to cor- 
 rect it, the appellant will not be heard 
 to allege objections to the form of the 
 judgment on appeal : Robinson v, Keith, 25- 
 331. 
 
 184. A motion to Tacate an injunction 
 
 cannot be first made after appeal : Bishop v. 
 Cartel; 29-165, 
 
 185. Motion non obstante: A question 
 which can only be raised by motion for judg- 
 ment non obstante veredicto cannot be first 
 raised on appeal : Coonrod v. Benson, 2 Gr. 
 Gr., 179. 
 
 186. Objections deemed waived: Objec- 
 tions not made in the court below will be 
 considered waived, and the judgment in an 
 action at law will not be reversed on ap- 
 peal upon a point not presented to, nor passed 
 upon by, the court below : Iowa Homestead 
 Co. V. Duncombe, 51-525, 
 
 187. By pointing out specific objections a 
 party is deemed to have waived any objec- 
 tions not pointed out : Des Moines Valley, etc., 
 Ins. Co. V. Henderson, 38-446. 
 
 188. New arguments or authorities may 
 be presented on appeal, although no new 
 question can be raised : District T'p v. French, 
 40-601. 
 
 189. New reasons: Failure of the party 
 objecting to the action of the lower court, to 
 urge a good reason in support of his point or 
 objection, will not prevent the supreme court 
 from considering such reason and basing its 
 action theroon : Bond v. Wabash, St. L. & P. 
 R. Co., 67-712. 
 
 199. The fact that the appellate court 
 reaches its conchisions upon grounds differ- 
 ent from those upon which the court below 
 bases its judgment will have no effect as to 
 such judgment if the conclusion reached is 
 the same : Richman v. Board of Supervisors, 
 70 . 
 
 191. All objections appearinsr of record 
 may be urged: A party has the right to 
 make, in the supreme court, all objections 
 which legitimately arise on the record, 
 whether made in the court below or not, ex- 
 ceiDt in cases where it is required that objec- 
 tions urged in the court below shall be stated 
 in writing or made to appear of record: 
 McGovern v. Keokuk Lumber Co., 61-365. 
 
 192. Therefore held, that the question of 
 the sufficiency of affidavits to support a mo- 
 tion for change of venue was properly before 
 the supreme court on appeal, although no 
 objection thereto appeared of record, the 
 party appealing having duly excepted to the 
 ruling on the motion : Ibid. 
 
APPEAL, IV, 3, a. 
 
 51 
 
 How questions are suflSciently raised. — Motion below to correct eiTor. 
 
 2. How questions are sufficiently raised. 
 
 a. Motion in the court ielow to correct 
 the error} 
 
 193. When necessary: Any objection to 
 erroneous action of the court below which 
 might have been corrected in that court if 
 attention had been called thereto, will not be 
 considered if first raised in the supreme 
 court : Oarvin v. Cannon, 53-716. 
 
 194. So held, as to an objection which 
 might have been raised in the lower court by 
 motion in arrest of judgment: Smith v. 
 Warren County, 49-336. 
 
 195. So held, also, in regard to the objec- 
 tion that the judgment was excessive, no 
 motion to correct such error having been 
 made in the court below : Black v. Boyd, 53- 
 719; Diclcey v. Harmon, 36-501; Finch v. 
 Billings, 23-238 ; Keller v. Jackson, 58-639. 
 
 196. So held, also, where the objection 
 that the judgment below was improperly 
 entered in vacation was not made in that 
 court: Carmichael V. Vandebur, 50-651. 
 
 197. Motion to set aside default: A judg- 
 ment by default will not be reviewed in the 
 supreme court until a motion to set it aside 
 has been made and overruled in the court 
 below: Hunt v. Stevens, 35-361; Savings 
 Bank v. Horn, 41-55. 
 
 198. Thus, objection to judgment by de- 
 fault, that the notice was not served in time 
 to render defendant in default, cannot be 
 raised on appeal if no motion to set aside de- 
 fault was made below: Pigman v. Denney, 
 12-396; McKinley v. Betchtel, 12-561. 
 
 199. So held, also, as to objections to judg- 
 ment by default, on the ground of defective 
 manner of service, or defect in the notice 
 itself: Van Vark v. Van Dam, 14-332 ; Bethel 
 V. Leay, 14-593; Downing v. Harm,on, 13-535; 
 Decatur County v. Clements, 18-536; Pratt 
 V. Western Stage Co., 27-363. 
 
 200. But before the enactment of the stat- 
 utory px-ovision a,bove referred to, held, that 
 an error apparent on the face of the plead- 
 ings in rendering judgment on default for 
 more than plaintiff was entitled to recover. 
 
 might be corrected on appeal, although there 
 was no objection in the lower court or effort 
 made to have the error corrected : Oower v. 
 Carter, 3-344. 
 
 201. Errors in tnxation of costs cannot 
 be urged in the supreme court unless motion 
 for retaxation has been made in the court 
 below : Hemphill v. Salladay, 1 G. Gr. , 301 : 
 Yeager v. Circle, 1 G. Gr., 438. 
 
 202. Motion for retrial by defendant 
 served by publication : As the statute gives 
 to a defendant served by publication only a 
 right to retrial upon motion within a speci- 
 fied time, he cannot, on appeal, object to the 
 sufficiency of the service, unless such mo- 
 tion for retrial has first been made and over- 
 ruled in the lower court : Berryhill v. Jacobs, 
 19-346; S. C, 30-346. 
 
 203. Reason of the provision : The statu- 
 toi-y provision above referred to was de- 
 signed to prevent the expense and delay of 
 appeal where the error relied upon is a mere 
 irregularity, mistake, or omission on the part 
 of some ministerial officer, or the court itself, 
 w^hich could readily be corrected in the trial 
 court on motion : Pigman v. Denney, 13-396. 
 
 204. Other cases, applying the statutorj^ 
 provision, are as follows: Rohison v. Saun- 
 ders, 14-539 ; Barnes v. Hayick, 15-603 ; Carle- 
 ton V. Byington, 17-579 ; Boyd v. Rutledge, 25- 
 371 ; Coakley v. MeCarty, 34-105 ; Grimes v. 
 Hamilton County, 37-290. 
 
 205. Mistakes of clerit cannot be urged as 
 objections to the judgment on appeal unless 
 a motion to correct such error has first been 
 made in the lower court : Daniels v. Claflin, 
 15-153. 
 
 206. Applicable in appeals from justices' 
 conrts: The same provision is applicable in 
 case of appeal from the judgment of a justice 
 of the peace to the circuit court: Smith v. 
 Parker, 28-359; Leonard v. Hallem, 17-564. 
 
 207. But not in case of vsrit of error from 
 the judgment of a justice of the peace which 
 is entered without jurisdiction: Holmes v. 
 Hull, 48-177. 
 
 208. What deemed sulHcient calling at- 
 tention of court to error: Where a motion 
 for change of venue is resisted on the ground 
 
 - ' Code, § 3167. A mistake of the clerk shall not be ground for an appeal until the same has been presented 
 and acted upon by the court below, 
 
 § -3168. A Judgment or order shall not be reversed for an error which can be corrected on motion in an inferior 
 court, until such motion has been made there and overruled. 
 
52 
 
 APPEAL, IV, 2, b, c. 
 
 Motion for new trial. — Finding of facts. 
 
 that the court to which it is proposed to send 
 the case has no jurisdiction of sucli cases, 
 and notwithstanding such objection the 
 change is granted to such court, the error 
 may be reviewed on appeal, although no mo- 
 tion to change the order and send the casetto 
 a court wliich would have had jurisdiction 
 is made by the objecting party: Sayles v. De- 
 luhrey, 64-109. 
 
 209. Statute not applicable: Such pro- 
 vision applies only to such errors as without 
 motion would not be called to the attention 
 of the lower court: Brown v. Rose, 05-734. 
 
 Exceptions, when necessaiy and how 
 taken, see that title. 
 
 b. Motion for new trial. 
 
 210. Not necessary: The statutory re- 
 quirement above referred to as to the neces- 
 sity of motion in lower court to correct error 
 before urging it on appeal, applies only to 
 such errors as, without such motion, would 
 not be called to the attention of the lower 
 court. Another statutory provision i renders 
 a motion for new trial in the lower court un- 
 necessai-y in order to authorize the appellate 
 court to review any judgment or order of the 
 court below: Brovm v. Rose, 55-734; Drefahl 
 V. Tuttle, 42-177. 
 
 211. Before the enactment of this statu- 
 tory provision, held, that a judgment would 
 not be reversed, on the ground that the ver- 
 dict was contrary to the evidence, when a 
 motion for a new trial upon that ground had 
 not been made in the court below : Brayton 
 V. Boone, 19-506. 
 
 212. But the question was unsettled 
 whether a motion for a new trial was neces- 
 sary to bring up for review errors of law 
 occurring at the trial: Presnall v. Herbert, 
 34-539 ; Rindskoff v. Lyman, 16-260. 
 
 213. A motion for new trial was, however, 
 held not necessaiy in order to enable the 
 supreme court, on appeal, to review a de- 
 cision upon the admissibility of evidence 
 properly excepted to, when such decision 
 virtually disposes of the whole case : McCoy 
 V. Julien, 15-371. 
 
 214. This provision affects the remedy, 
 and hence is not unconstitutional as applying 
 
 to actions arising before its passage : Johnson 
 V. Semple, 31-49. 
 
 215. Nor is it in conflict with Const., art. 
 5, § 4, providing that in actions at law the 
 supreme court shall be a court for the correc- 
 tion of eiTors. Previous to the enactment of 
 this, provision, that court would review, as 
 matter of law, the ruling of the lower court 
 upon a motion for a new trial on the ground 
 that the verdict was contrary to the evidence, 
 and this act simply authorizes the court to 
 treat the case as if such motion for a new trial 
 was made and entered, and may be regarded 
 as a standing motion in all cases : Coffin v. 
 City Council, 26-515. 
 
 216. Where exceptions are duly preserved 
 in the course of the trial, they may be brought 
 up on appeal, although the motion for new 
 trial is stricken from the files because filed 
 too late : Beems v. Chicago, R. I. & P. R. 
 Co., 58-150. 
 
 217. The necessity of a motion being made 
 below to correct errors, etc., is not removed 
 by the provision making motion for new 
 trial unnecessary to secure the review of a 
 cause in the supreme court : Webster v. Cedar 
 Rapids <& St. P. R. Co., 27-315. 
 
 218. Under this provision, however, errors 
 of law committed by the judge might be re- 
 viewed on appeal without any motion for 
 new trial : Delvee v. Boardman, 30-446 ; Pres- 
 nall V. Herbert, 34^539. 
 
 219. Nor does such provision dispense with 
 the necessity of taking exceptions to rulings 
 objected to: Root v. lUinois Cent. R. Co., 
 29-103 : Eason v. Gest&r, 31-475. 
 
 220. Where defendant moved in arrest of 
 judgment, and thereupon, in order to cure 
 the defect insisted upon, plaintiff amended 
 his petition, and introduced certain evidence 
 to which a demurrer was sustained, the 
 judgment arrested, and defendant recovered 
 costs, held, that no motion for a new trial 
 was necessary in order to present the excep- 
 tions, duly taken, on appeal: Coates v. Ga- 
 lena & C. U. R. Co., 18-277. 
 
 c. Finding of facts. 
 
 221. How reviewed: Before the enact- 
 ment of a statutory provision on the sub- 
 
 ' Code, § 8169. The supreme court may review and reverse, on appeal, any judgment or order of the district 
 or circuit court, although no motion for a new trial was mr.de in such courts. 
 
APPEAL, IV, 2, c; 3. 
 
 63 
 
 Finding of facts. — What the record must show. 
 
 ject,' it was held that, in order to enable the 
 supreme court, on appeal, to review the cor- 
 rectness of the findings of the court below 
 upon the facts, exceptions must have been 
 taken to such findings and a new trial asked 
 for: Kelso v. Ely, 11-501; aUlett v. Fore- 
 man, 11-512. 
 
 222. Before the enactment of this statutory 
 provision there was, in an action at law tried 
 by the court without a jury, no way of secur- 
 ing the review on appeal of the conclusions 
 of the court upon the evidence, unless there 
 was a special finding of facts by the court, 
 except by a motion for new trial based upon 
 the ground that the judgment was against 
 the evidence, and an exception to the ruling 
 on such motion : Warner v. Pace, 10-391 ; 
 Corner v. Gaston, 10-512; Roberts v. Hoyt, 
 12-345; Allman v. Gilbert, 14-538; Robison 
 V. Saunders, 14^539 ; Reynolds'' Heirs v. Mil- 
 ler, 14-97. 
 
 223. Tlie certificate referred to in the 
 statutory provision set out below cannot be 
 made by the judge in vacation, unless by 
 agreement of parties. The term "judge" 
 means the same as if the word " court " had 
 been used : Luse v. Des Moines, 22-590. 
 
 224. In the absence of the certificate, or 
 an agreement of the parties, the supreme 
 court cannot, on appeal, review the conclu- 
 sion of the court upon the evidence : Worm- 
 ley V. District T'p, 45-666. 
 
 225. It is only when the evidence is all 
 before the supreme court, that it can review 
 a finding of the court below as to a question 
 of fact : Van Riper v. Baker, 44-450. 
 
 226. Assigimieut of errors: This section 
 does not dispense with assignment of errors : 
 Sisters of Visitation v. Glass, 45-154. 
 
 227. Trial de novo on apiie-il: The sec- 
 tion is applicable only in actions at law, and 
 therefore does not interfere with the provis- 
 ions for securing a trial de novo in equity 
 cases : Ibid. ; Vinsant v. Vinsant, 47-594. 
 
 A fludiDg of facts must be made by the 
 court on request of either party, where the 
 trial is to the court in a law action: See 
 Practice, II, c. 
 
 228. As the finding of the court upon a 
 question of fact in an action at law has the 
 force of a verdict of a jury, the admission of 
 improper evidence in such a case will be a 
 ground for reversal, a's fully and to the same 
 extent that it would be in an action tried by 
 a juiy, where it does not appear but that such 
 improper evidence was considered by the 
 court in its final determination of the case : 
 Jaffray v. Thompson, 65-323. 
 
 3. What the record must show in order 
 ■ that a question may he reviewed. 
 
 225). Final action: Where the abstract 
 does not show what the final action of the 
 court was, nor that any appeal has been 
 taken, the court cannot determine the appeal : 
 Pittman v. Pittman, 56-769. 
 
 230. A party complaining of erroneous 
 rulings must make it appear from the record 
 that judgment was rendered against him: 
 Shannon v. Scott, 40-629. 
 
 231. Must show prejudice: The supreme 
 court will not reverse a cause for error com- 
 mitted below, unless it is affirmatively shown 
 by the record that such error was actually 
 prejudicial to appellant: Blackburn v. Pow- 
 ers, 40-681 ; Palmer v. Fiilmer, 22-281. 
 
 Tliat a case will not be reversed for error 
 without prejudice, see infra, §§ 332-336. 
 
 232. Matters not of record : Evidence, in- 
 structions, etc., not made part of the record 
 will not be considered on appeal : Daniels v. 
 Langdon, 52-741. 
 
 233. Where the supreme court cannot de- 
 termine fx-om the record what issues are be- 
 foi-e it, the case may be remanded, in order 
 that the parties may replead: Lyon'v. Tevis, 
 8-79. 
 
 Oral evidence, how preserved, see Excep- 
 tions, II. 
 
 Shorthand notes of evidence, how made 
 part of record, see Exceptions, §g 76-83. 
 
 234. How fully the evidence must be set 
 ont: In order that rulings on the admission 
 of evidence may be reviewed upon appeal, it 
 is not necessary that all the evidence be pre- 
 
 ' Code, § 3170. Where a cause is tried by the court, it shaU not be necessary, in order to secure a review of 
 the same in the supreme court, that there should have been any flndins of facts or conclusions of law stated 
 in the record, but the supreme court shall hear and determine the same whenever it shall appear from a cer- 
 tificate of the judge, agreement of parties or their attorneys, or, in case the evidence consists wholly of writ- 
 ten testimony, from the certificate of the clerk, that the transcript contains all the evidence introduced by the 
 parties on the trial in the court below. 
 
54: 
 
 APPEAL, IV, 3. 
 
 What the record must show. 
 
 sented in the record. It is only necessaiy 
 that the record shall show the rulings admit- 
 ting or excluding the evidence, the pur- 
 port of the evidence so passed upon, and the 
 ground of objection : Smith v. Johnson, 45- 
 308. 
 
 235. The evidence in full is required in law 
 actions only when, as an objection to the 
 judgment, it is urged that the verdict is not 
 supported by the testimony. Upon no other 
 question would it be proper to taie all the 
 evidence to the supreme court on appeal. 
 The supreme court will pass upon the cor- 
 rectness of instructions or rulings as to the 
 admission or rejection of testimony when the 
 bill of exceptions contains a statement that 
 there was evidence tending to prove the 
 facts to which the instructions ai-e applicable, 
 or states evidence, not necessarily in fuU, 
 about which the question as to the admissi- 
 bility of evidence arises : Kelleher v. Keokuk, 
 60-473. 
 
 236. A general statement in a bill of ex- 
 ceptions as to what the party sought to estab- 
 lish, without a .statement of the exact evi- 
 dence offered, will not be sufficiently definite 
 to enable the court to pass upon an exception 
 to a ruling on such evidence : Cousins v. 
 Westcott, 15-353. 
 
 237. A statement in a bill of exceptions 
 that it contains the substance of the evidence 
 is not sufficient whore it is necessary, in order 
 to authorize the court to pass on the action 
 of the court below, that it shall have before 
 it all the evidence in the case : Thompson v. 
 Mumma, 21-65 ; Burlington Gas Light Co. v. 
 Green, 31-335 ; Lea v. Roads, 22-408 ; MeKen- 
 zie V. Kitler, 27-254; Jemmison v. Gray, 
 29-537; Davis v. Card, 33-593: Subbard 
 V. Epperson, 40-408 ; Walker v. Beaver, 50- 
 504. 
 
 238. Where the bill of exceptions, after set- 
 ting out evidence, continued, "being all the 
 evidence offered by the plaintiff to sustain the 
 issue on his part," held, that it sufficiently 
 appeared that the evidence was all in the 
 reooi'd to enable the supreme court to review 
 the ruling of the lower court on a motion for 
 nonsuit: Rowan v. Lamb, 4 G. Gr., 468. 
 
 239. Where it is necessary that the record 
 shall be shown to contain all the evidence, such 
 fact must appear from the judge's certificate 
 and not merely from his reference to such a 
 
 certificate made by the shorthand reporter : 
 Walker v. Beaver, 50-504. 
 
 240. When insufficiency of evidence is 
 relied upon as ground for new trial in the 
 lower court, and the motion is overruled, 
 the ruling cannot be reviewed unless the 
 record contains all the evidence: State v. 
 Lyon, 10-340; State v. Hockenberry, 11-269; 
 Parsons v. Chapman, ll-2dA; McCool v. Ga- 
 lena & C. U. R. Co., 17-461 ; Garber v. Clay- 
 ton County, 19-39; Beal v. Stone, 23-447; 
 McKenzie v. Kitler, 27-254; Smith v. Cedar 
 Falls & M. R. R. Co., 30-244; Davis v. Card, 
 33-593; Everett v. Union Pacific R. Co., 59- 
 243 ; Crystal v. Des Moines, 65-503. 
 
 241. The supreme court will not disturb a 
 verdict, on appeal, for insufficiency of evi- 
 dence to support it, if it has not all the evi- 
 dence before it : Barker v. Kuhn, 38-392. 
 
 243. Where the evidence on which the 
 court below acted is not before the supreme 
 court, the action of the lower court cannot 
 be inquired into so far as it purpoi-ts to be 
 based upon the evidence : Skiff v. Mershon, 
 7-79. 
 
 In equity cases, in order that there may 
 be a trial de novo on appeal, the record must 
 show that it contains all the evidence offered 
 or introduced on the trial : Infra, g§ 1035-45. 
 
 In crimiunl cases, see Criminal Law, 
 §S 1674r-1676. 
 
 243. Impeaching evidence: In order that 
 the action of the lower court in rejecting evi- 
 dence offered to impeach a witness may be 
 i-eviewed, the record should show the evi- 
 dence given by the witness and what it was 
 proposed to prove for the purpose of im- 
 peachment : Shephard v. Brenton, 20-41. 
 
 244. Rulings upon evidence; prejudice 
 must appear: Where the answers to ques- 
 tions objected to, or sought to be elicited by 
 such questions, are not shown by the record, 
 the supreme court cannot review the ruling 
 of the lower court in sustaining or overruling 
 such objections. It must affirmatively ap- 
 pear that the action of the court, even if er- 
 roneous, was prejudicial: Mays v. Deaver, 
 1-216; Speers v. Fortner, 6-553; Hanan v. 
 Hale, 7-153 ; Willey v. Hall, 8-62 ; Lucas v. 
 Jones, 44-298. 
 
 245. When evidence is admitted over ob- 
 .jection thereto : In reviewing the action of 
 the court in overruling an objection to a 
 
APPEAL, IV, 3. 
 
 55 
 
 What the record must show. 
 
 question, the material inquiry is not whether 
 an improper question was asked, but whether 
 improper testimony was i-eceived, and error 
 cannot be made to appear until it is shown 
 that the question objected to was answered, 
 and what the answer was: Thtirston v. 
 Cavenor, 8-155; Campbell v. Chamberlain, 
 10-337; State v. Keeler, %S-551; Manny v. 
 Woods, 83-365 ; Mosier v. Vincent, 34-478. 
 
 246. It must be made to appear what the 
 witness testified to, and that such testimony 
 was material and prejudicial : Oliver v. De- 
 pew, 14-490 ; Bradley v. Kavanagh, 13-373. 
 
 247. Where a record is admitted over an 
 objection "thereto, but the record is not made 
 to appear in the bill of exceptions, the ruling 
 cannot be reviewed : Oliver v. Depeio, 14-490. 
 
 248. The record must disclose facts affirm- 
 atively showing that the admission of evi- 
 dence over objection was error to the preju- 
 dice of the party objecting, to warrant re- 
 versal on that ground: Green v. Cochran, 
 43-544. 
 
 249. But where evidence is admitted over 
 the objection of a party it will be presumed 
 that the court considered it, and that, if it 
 was erroneously admitted, prejudice re- 
 sulted : Leasman v. Nicholson, 59-259. 
 
 250. Where the whole of the testimony of 
 the witness is not given in the bill of excep- 
 tions, or in the record ; nor the fact in any 
 way negatived that the witness was a profes- 
 sional one, or for some reason entitled to 
 give an opinion, an objection that a question 
 called for an opinion of the witness will not 
 be held to have been erroneously overruled, 
 as it may have been groundless in fact: 
 Higley v. Newell, 28-516. 
 
 251. When eyidence is excluded: In 
 order to determine whether prejudice has re- 
 sulted to a party by the exclusion of evidence 
 offered by him, the answers, or the facts 
 proposed to be proved by the witness in 
 response to the question asked, must be 
 made to appear. Unless prejudice be thus 
 shown, the error in sustaining objection 
 to the question or the evidence offered 
 will not be ground of reversal: Jenka v. 
 Knott's Mexican Silver Mining Co., 58-549; 
 Gronan v. Kukkuok, 59-18 ; Bays v. Hunt, 60- 
 251; Kelleherv, KeoJcuJc, 60-473; Klaman v. 
 Malvin, 61-752; Shellito v. Sampson, 61-40; 
 State V. Montgomery, 65-488. 
 
 252. The court must be advised by the 
 record of the character of the proposed evi- 
 dence and the facts which the party desiring 
 to introduce it claimed would have been 
 established by it: Votaio v. Dlehl, 63-676. 
 
 253. When the purpose of a question is 
 not disclosed by the record, the supreme 
 court will not interfere with the i-uling of 
 the court below in excluding it: State v. 
 Ross, 21-467. 
 
 254. Where the bill of exceptions is so in- 
 definite and uncertain that it cannot be 
 determined what the evidence excluded was, 
 to which objection is made, the supreme 
 court will not, on appeal, pass upon the cor- 
 rectness of the action of the lower court: 
 Hunt V. Daniels, 15-146. 
 
 235. A ruling of the court in refusing to 
 require the production of a written instru- 
 ment cannot be reviewed on appeal unless it 
 appears that the instrument would have 
 tended to establish the issue on the part of 
 the party calling for it : Greenough v. Shel- 
 den, 9-503. 
 
 256. Error of the court in excluding evi- 
 dence will be deemed without prejudice un- 
 less the record shows that such evidence 
 was material to the issues : Atkins v. Ander- 
 son, 63-739. 
 
 257. But if the record states what the evi- 
 dence rejected tended to prove, such state- 
 ment will be presumed to be true, and will 
 enable the appellate court to determine 
 whether such rejection, if erroneous, was 
 material : Spaulding v. Adams, 63-437 ; Chase 
 V. Scott, 33-309. 
 
 258. If the materiality of the evidence 
 sought to be introduced is apparent on the 
 face of the question asked, it is not necessary 
 that it appear that the party seeking to in- 
 troduce it state what he expects to prove 
 thereby ; but if this is not apparent the party 
 seeking to introduce the evidence must state 
 what he expects to prove and thus make the 
 materiality of the question appear : Mitcliell 
 V. Harcourt, 62-349 ; Votaw v. Diehl, 63-676. 
 
 259. What necessary to enable court to 
 review instructions: So much of the evi- 
 dence should be set out in the record as relates 
 to the exceptions, that their applicability 
 may appear, but it is not absolutely essential 
 that all the evidence should be set out. In- 
 structions which are erroneous and mislead- 
 
56 
 
 APPEAL, IV, 3. 
 
 What the record must show. 
 
 ing in any possible view will be reviewed, 
 although the record does not present all the 
 evidence: Stevenson v. Oreenlee, 15-96; Mur- 
 phy V. Johnson, 45-57. 
 
 260. Evidence to support instructions: 
 As an instruction may not state all of an 
 abstract proposition of law, and yet be correct 
 as applicable to the facts of the case, the 
 supreme court cannot pass upon the correct- 
 ness of instructions without some statement 
 of the facts which the evidence tended to 
 establish being before it : Mudge v. Agnew, 
 56-297. 
 
 261. The supreme coui-t cannot pass upon 
 the correctness of the action of the lower 
 court in giving or refusing instructions, un- 
 less the evidence upon which such instruc- 
 tions are based appears of record and is ap- 
 propriately brought before such court : Potter 
 V. Wooster, 10-334; Wilcox v. McCune, 21- 
 294. 
 
 262. As instructions, abstractly correct, 
 may be properly refused if not applicable 
 under the evidence, a party complaining of 
 the refusal to give an instruction must bring 
 before the court on appeal the evidence 
 showing such applicability : Cutter v. Fan- 
 ning, 2-580 ; Gover v. Dill, 3-337 ; Hanan v. 
 Hale, 7-153 ; Frost v. Inman, 10-587 ; Wisner 
 V. Brady, 11-248; Paden v. Griffith, 12-372; 
 Wilcox V. McCune, 31-394; Chase v. Scott, 
 33-309. 
 
 263. The refusal of instructions which 
 might have been proper under a certain state 
 of the proof will nevertheless not be held 
 erroneous on appeal when the evidence is not 
 ail before the court: Shephard v. Brenton, 
 30-41. 
 
 264. The court cannot, upon appeal, pass 
 upon the pertinency of instructions given, 
 unless all the evidence is before it: Nollen 
 V. Wisner, 11-190; Preston v. Walker, 36- 
 305. 
 
 265. The presumption is that instructions 
 were correctly given, and that there was evi- 
 dence introduced on the trial to authorize 
 them, unless the absence of such evidence is 
 made to appear: Bridgman v. Steamboat 
 Emily, 18-509 ; State v. ^ioe, 56-431 ; Boby 
 V. Appanoose County, 63-113. 
 
 266. The court cannot say that an errone- 
 ous instruction was without prejudice, unless 
 such fact aiBrmatively appears: Carlin v. 
 
 Chicago, R. I. & P. R. Co., 31-370; Potter 
 V. Chicago, R. I. & P. R. Co., 46-399; Roby 
 V. Appanoose County, 63-113. 
 
 267. In order to secure the review of in- 
 structions properly excepted to, it is' only 
 necessary that the record present so much of 
 the evidence as will show that facts to which 
 instructions are applicable were before the 
 court. And what is usually necessary is a 
 statement in the bill of exceptions that there 
 was evidence tending to prove such facts: 
 Kelleher v. KeoJcuJe, 60-473. 
 
 268. When all the instructions must ap- 
 pear: The supreme court cannot reverse a 
 criminal case for failure of the coilrt to prop- 
 erly instruct the jury, when it has not before 
 it all the instructions and evidence : State v. 
 Hamilton, 33-573. 
 
 269. To warrant a reversal on account of 
 refusal of the lower court to give instruc- 
 tions asked, it must appear that those given 
 are all before the appellate court: State V. 
 Johnson, 19-230; Bower v. Stewart, 30-579; 
 Chase v. Scott, 33-309; State v. Nichols, 
 38-110; Moody v. St. Paul & S. C. R. Co., 
 41-384; State v. Stanley, 48-331: State v. 
 Williamson, 68-351 ; Huff v. Aultman, 69-71. 
 
 270. If an instruction given is so far erro- 
 neous that any modification thereof properly 
 presenting the law would have been in con- 
 flict with it, the error wiU be ground for re- 
 versal although all the instructions are not 
 before the court ; but it will be otherwise if 
 there might have been, in another instruc- 
 tion, modifications or limitations such as, 
 with the instruction complained of, would 
 have correctly presented the law : Bland v. 
 Hixenbaugh, 39-533. 
 
 271. Yeidict against instructions: The 
 granting of a new trial on the ground that 
 the verdict is against the instructions will 
 not be reviewed unless the instructions ap- 
 pear in the record: Caffrey v. Groome, 10- 
 548; Briggs v. Hartman, 10-63; Beal v. 
 Stone, 22-447 ; Howell v. Snyder, 39-610. 
 
 272. Affidavits for change of venue: Where 
 the affidavits on which a change of venue 
 is asked in a civil case are before the court, 
 it will presume that it has before it all the 
 evidence upon' which the court acted. In 
 such case the opposite paa-ty cannot file 
 counter-affidavits, and in the absence of any 
 showing it will not be presumed that affl- 
 
APPEAL, V, a. 
 
 57 
 
 What will warrant reversal. — Presumptions of regularity. 
 
 ants were produced in court and subjected 
 to a cross-examination: McOovem v. Keo- 
 kuk Lumber Co., 61-365. 
 
 273. Findings of fact by the court below 
 will be presumed correct and supported by 
 the evidence, if the evidence is not all before 
 the supreme court: Napier v. Wiseman, 3 
 G. Gr., 246; Hamilton v. Walters, 3 6. Gr., 
 556 ; Rosseau v. Fine, 1-98 ; Snell v. Kimmell, 
 H-281. 
 
 274. An order of the lower court will not 
 be interfered with on appeal where the su- 
 preme court has not before it all the evidence 
 upon which the lower court acted : Krause v. 
 Hampton, 11-457 ; Adams v. Peck, 14-508. 
 
 275. The granting of a new trial on the 
 ground of newly-discovered evidence will not 
 be interfered with, on appeal, if it does not 
 affirmatively appear that all the evidence on 
 which it was gi-anted is before the appellate 
 court: Sowden v. Craig, 20-477; S. C, 21- 
 580. 
 
 276. Statement of jndge as to evidence: 
 Where a judge, in overruling a motion for a 
 new trial, certifies that the newly-discovered 
 evidence on which a new trial is askefl is 
 cumulative, such statement will be regarded, 
 on appeal, as true, when the evidence itself is 
 not before the court : iSej/moMr D. Hoyt, 23-19. 
 
 277. A judgment will not be interfered 
 with, on appeal, because not warranted by the 
 evidence, unless all the evidence is before the 
 appellate cxjurt: Green v. McFaddin, 5-549. 
 
 Action of the lower court will, on appeal, 
 be presumed to have been supported by evi- 
 dence, if the evidence is not all before the 
 appellate court : See Infra, §§ 286-296. 
 
 V. What will and what will not 
 
 WAEEANT EEVEESAL. 
 
 a. Presumptions of regularity. 
 
 278. In favor of action below: Every 
 reasonable presumption is to be entertained 
 in favor of the ruling of the court below and 
 the correctness of its judgment: Davis v. 
 Moffltt, 4 G. Gr. 92 ; Hendrie v. Rippey, 9-351 ; 
 David V. Leslie, 14-84; Morris v. Steele, 62- 
 228 ; Hintrager v. Kiene, 62-605. 
 
 279. This presumption in favor of the 
 action of the court below will prevail unless 
 overcome by something appearing of record : 
 
 Brobst V. Thompson, 4 G. Gr., 135 ; Speers v. 
 Fortner, 6-553 ; Scofield v. Ford, 56-370. 
 
 280. The supreme court cannot presume 
 facts upon which to base error. Every fair 
 prestimption should be in favor of the court 
 below: Lawson v. Campbell, 4 G. Gr., 413. 
 
 281. It will be presumed that the action 
 of the lower court was regular and author- 
 ized, unless the contrary appears : Bower v. 
 Webber, 69-286. 
 
 282. The presumption is in favor of the 
 action of the lower court, and it will be in- 
 terfered with only where it affirmatively ap* 
 pears that some prejudicial error has been 
 committed : Hunt v. Higman, 70 . 
 
 283. Therefore, where a motion was made 
 to strike out a part of a deposition as imma- 
 terial, and was submitted with the case, it 
 not appearing that any ruling was made 
 thereon, held, that, although the evidence 
 was erroneous, it would be presumed that 
 the coui't did not consider it : Ibid. 
 
 284. An appellate court is always bound 
 to exercise presumptions in favor of the 
 judgment it reviews, unless it is shown that 
 the law and justice have been violated by such 
 judgment : State v. Hopkins, 67-285. 
 
 285. Where the record does not show what 
 the issues in the case were, such issues will 
 be presumed as would render the action of 
 the court proper : Holland v. Union County, 
 68-56. 
 
 286. It will be presumed that there was 
 sufficient testimony to support the judg- 
 ment rendered unless the contrary appears : 
 Brady v. Malone, 4-146 ; Hefferman v. Burt, 
 7-330; Jennings v. Conn, 11-542; Willett v. 
 Millman, 61-123; Phillips v. Phillips, 46- 
 703. 
 
 287. It will be presumed, in favor of the 
 finding of the court, that lawful evidence 
 authorizing such finding was introduced and 
 considered. So where, in an action to fore- 
 close a mortgage, judgment was rendered 
 by default, and it did not appear that the 
 mortgage and note were introduced in evi- 
 dence, held, that such fact would be pre- 
 sumed: Hem-yv. Evans, 58-560. 
 
 288. The supreme court will not, for the 
 purpose of reversing a cause, presume that 
 the proof established a state of facts which 
 would render the decision of the court be- 
 low en-oneous, if a state of facts can be sup- 
 
58 
 
 APPEAL, V, a. 
 
 Presumptions of regularity. 
 
 posed under which such decision would be 
 correct : Crane v. Ellis, 31-510. 
 
 £89. Where the record shows some evi- 
 clence on which a ruling could be supported, 
 it will be upheld, no evidence to the con- 
 trary appearing : Blythe v. Blythe, 25-266. 
 
 290. Where there is nothing in the bill of 
 exceptions showing the existence of gi-ounds 
 on which a motion for new trial is based, 
 it will be presumed in support of the action 
 of the court in overruling such motion that 
 such grounds were not shown to exist : Keys 
 V. Francis, 38-321. 
 
 291. Where no finding of facts is made, 
 the presumption is that the court found such 
 facts as will justify the conclusion of law, 
 and the conclusion will not be held erroneous 
 unless there is a finding of facts from which 
 error affirmatively appears, or error appears 
 otherwise from the record: Oskaloosa v. 
 Pinkerton, 51-697. 
 
 292. Where it does not appear upon what 
 facts the decision of the lower court was 
 based, such a finding of facts will be pre- 
 sumed as will support the decision : Fouts v. 
 Pierce, 64^71. 
 
 293. Whei-e the judgment below is based 
 upon an authentication of a judgment from 
 another state, which is insufficient, the pre- 
 sumption will be entertained that there was 
 other evidence sufficiently showing such 
 judgment, unless the contrary appears : Clem- 
 ■merv. Cooper, 24-185. 
 
 294. Where it appears that attorneys' fees 
 were taxed, after rendition of judgment in 
 the case, as they might properly be, it will 
 be presumed that such taxation was made 
 upon proper evidence being introduced, al- 
 though it does not appear that there was 
 any such evidence: Kelso v. Fitzgerald, 67- 
 266. 
 
 295. In the absence of a showing in the 
 record to the contrary, the supreme court 
 will presume that there was before the lower 
 court sufficient evidence to justify the find- 
 ing that defendant had been duly and le- 
 gally served with process: Kent v. Coquil- 
 lard, 67-500. 
 
 296. Where appellants were defaulted, and 
 the record did not show what proof was in- 
 troduced to sustain the bill, held, that it 
 would be presumed there was enough evi- 
 dence to support the averment upon wliich 
 
 judgment was rendered: Semple v. Lee, 13- 
 304. 
 
 297. Where the decree recites that certain 
 matters essential to the jurisdiction of the 
 court were made to appear, it will be pre- 
 sumed on the appeal that they were made to 
 appear in the proper manner and that the 
 court rendering such decree performed its 
 duty : Jewett v. Miller, 12-85. 
 
 298. The supreme court will presume in 
 favor of the regularity of the proceedings be- 
 low, even though such proceedings are not 
 shown by the record : Dixon v. State, 8-416. 
 
 299. Where the record showed that the 
 trial was not by jury, held, that it would be 
 presumed that a jury was waived, although 
 that fact did not appear: Hawkins v. Bice, 
 40-435. 
 
 300. Error lunst affirmatively appear: 
 Error will not be presumed, and the party 
 alleging the existence of error to his preju- 
 dice must make it affirmatively appear: 
 Hudson V. Matthews, Mor., 94; I sett v. Ogle- 
 vie, 9-318; Way v. Lamb, 15-79; Messer v. 
 Reginnitter, 32-312; Stewart v. Bishop, 33- 
 584; State v. Foster, 40-303; Thompson v. 
 Winnebago County, 48-155; Pottawattamie 
 County V. Marshall County, 56-410. 
 
 301. Where error was assigned on appeal 
 in admitting in evidence a certain order, and 
 the record certified " that the order cannot 
 be found among the files," held, that as the 
 supreme court could not know what the 
 order was, it could not say that it was error 
 to have admitted such order in evidence in the 
 court below : Carpenter v. Parker, 23-450. 
 
 302. Where a motion to discharge defend- 
 ant because of unlawful arrest was unsup- 
 ported by any evidence at the time, held, 
 that an order overruling such motion would 
 not be reversed on appeal : State v. Ross, 21- 
 467. 
 
 303. Must be clearly manifest: Where- 
 ever error is complained of, it should be 
 made to appear not only affirmatively but 
 with reasonable certainty: Randolph Bank 
 V. Armstrong, 11-515; Oantz v. Clark, 31- 
 254. 
 
 304. Presnmption in favor of record: 
 Where an abstract showed an interlineation 
 with a pen, and it appeared that the finding 
 of the court below would not have been jus- 
 tified unless the allegation of the petition 
 
APPEAL, V, a. 
 
 Presumptions of regularity. 
 
 was such as shown by the abstract as 
 amended by the interlineation, held, that in 
 the absence of any showing to the contrary, 
 it would be presumed that the abstract as 
 thus amended was correct : Mahaska County 
 V. Riian, 45-338. 
 
 305. Defect iu the record: Error cannot 
 be presumed from mere omission or defect in 
 the transcript. It must appear affirmatively. 
 Unless it does so appear, the presumption of 
 law is that the proceedings of the coui't be- 
 low were legal and proper : Mackemer v. Ben- 
 ner, 1 G. Gr., 157. 
 
 306. AVhere a deniurrer to a portion of the 
 counts of an answer was sustained, and no 
 action as to other counts appeared of record, 
 but they might properly have been stricken 
 out, h£ld, that it would be presumed they 
 were stricken out and that the action of the 
 court was proper: Distriot T'p v. Smith, 
 39-9. 
 
 307. Presumption as to pleadins^s: Where 
 there was a cross-petition, and the case was 
 tried as though a reply thereto had been filed, 
 held, that the court would presume there was 
 such reply, although none appeared in the 
 record: Herveyv. Savery, 48-313. 
 
 That the same presumption obtains on ap- 
 peals from justices' courts, see Justices of 
 THE Peace, g 102. 
 
 308. Where ruling does not appear: If 
 it appears that a motion or demurrer was 
 filed in the lower court, but it does not ap- 
 pear that any ruling was made thereon, it 
 will be presumed that such motion or de- 
 murrer was waived : Sigler v. Woods, 1-177 ; 
 Busick V. Bumm, 3-63 ; Boardman v. Beck- 
 ivith, 18-293 ; State v. Hoss, 31-467 ; First Nat. 
 Bankv. Carpenter, 41-518; Moore v. Gilbert, 
 46-508. 
 
 309. Incidental rnlings: The presump- 
 tion in favor of the coiTectness of the rul- 
 ings of the court below is especially applica- 
 ble to those questions which are ever recurring 
 and depend for their solution upon the dis- 
 cretion of the court : Clinton Nat. Bank v. 
 Torry, 30-85 ; Thompson v. Bumham, 35-411. 
 
 310. Acts done in court in the progress of 
 the case are presumed to be in accordance 
 with law unless the contrary is made to ap- 
 pear. A presumption as to the regularity of 
 the proceedings of the lower court will 
 always be exercised, and error in such pro- 
 
 ceedings must be affirmatively shown to 
 warrant a reversal: McCue v. Wapello 
 County, 56-698. 
 
 311. Facts presumed: The presumption 
 to be entertained in support of the ruling of 
 the lower court requires that, if it would be 
 correct under any presumable state of facts 
 not inconsistent with the pleadings and the 
 record, it shall be upheld : Ward's Heirs v. 
 Cochran, 36-433 ; Johnson v. Mantz, 69-710 ; 
 Stone V, Hawkeye Ins. Co., 68-737. 
 
 312. The supreme court will not presume 
 a state of facts upon which to found error, 
 but if the record is silent and a state of facts 
 can be supposed upon which the action of the 
 lower court would be correct, the supreme 
 court will adopt that view of the case which 
 is consistent with the correctness of the rul- 
 ing made ; Freher v. Geeseka, 5-473. 
 
 313. Where sufficient ground appears 
 upon which the judgment of the court below 
 can be upheld, it will be presumed that the 
 judgment was rendered on such ground: 
 Frederick v. Mitchell, 1-100 ; State v. Gibbs. 
 39-818 ; Steel v. Miller, 40-403. 
 
 314. One of several grounds: If there be 
 several grounds upon which a ruling may 
 have been based, it will be upheld if any of 
 such groimds are sufficient to support it, and 
 if, among several insufficient grounds, one 
 would be sufficient under certain conditions 
 that may have existed, the supreme court 
 wiU presume that , such conditions existed 
 and that the ruling was based thereon : Worth- 
 ington v. Olden, 31-419. 
 
 315. Where a case is submitted to the jury 
 on two issues, and a verdict is returned in 
 favor of one of the parties which is sustain- 
 able on one of the issues upon the evidence 
 introduced but not by any evidence in sup- 
 port of the other, it will be presumed that 
 the verdict was upon the issue upon which 
 there was evidence supporting it, and any 
 error of the court below iu refusing to take 
 the other issue from the jury will be deemed 
 to have been error without prejudice : Calder 
 V. Smalley, 66-319. 
 
 316. Where an instmction was correct as 
 to one question of fact involved and incor- 
 rect as to another, and it appeared that, 
 under the evidence, the second question could 
 not have been found as assumed in the in- 
 struction without the verdict being contrary 
 
60 
 
 APPEAL, V, a, b. 
 
 Presumptions of regularity. — Error without prejudice. 
 
 to the evidence, held, that it would be pre- 
 sumed the verdict was found upon facts in 
 harmony with the first branch of the instruc- 
 tion, and the error as to the other branch 
 was without prejudice : State v. Sanders, 30- 
 583. 
 
 317. If no ground can be discovered nor 
 is pointed out, upon which the action of the 
 court can be upheld, the presumption of reg- 
 ularity will be overcome : Baird v. Chicago, 
 R.I. &P. R. Co., 61-359. 
 
 318. Where but one ground of objection is 
 urged, it must be presumed the ruling was on 
 that ground, though erroneous: Emery v. 
 Emery, 54^106. 
 
 319. Admission of evidence: If evidence 
 may have been admissible under some aspects 
 which the case may have assumed, and all 
 the evidence is not before the court, it will 
 be presumed that there was a state of facts 
 authorizing the admission of the evidence 
 objected to : Chase v. Scott, 33-309. 
 
 320. Where it appears that evidence was 
 excluded, but it does not appear upon what 
 ground, it will be presumed that there was 
 some ground therefor, where the evidence is 
 not all before the court : Cook v. Sioux City 
 & P. R. Co., 37-426. 
 
 321. If objection to evidence is sustained, 
 and the record does not show the ground of 
 the objection, if the evidence is vulnerable to 
 any objection, it will be presumed that was 
 the one made and sustained : Hoben v. Bur- 
 lington & M. R. R. Co., 30-563. 
 
 322. Where no other evidence than that 
 appearing in the record could legitimately 
 have been presented in the court below, it will 
 not be presumed that the action of the court 
 was based on anything not appearing of rec- 
 ord : McOovern v. Keokuk Lumber Co. , 61-365. 
 
 323. Griving: of instructions: In passing 
 upon the correctness of the action of the trial 
 court in refusing instructions as not appli- 
 cable to the facts of the case, the presump- 
 tion will be in favor of the correctness of the 
 ruling of the court in the absence of evidence 
 showing it to be erroneous: Stier v. Oska- 
 loosa, 41-353. 
 
 324. A case will not be reversed for refusal 
 to give instructions asked where it does not 
 appear what instructions were actually given : 
 Moody V. St. Paul & S. C. R. Co., 41-284. 
 
 325. Where it appears that instructions 
 
 were given which were not before the court, 
 which might have modified or changed those 
 given which are insisted upon as being erro- 
 neous, the court cannot presume that there 
 were not other instructions correcting any 
 error in the one relied upon as being errone- 
 ous : State v. Stanley, 48-331. 
 
 326. Where the evidence is not all before 
 the conrt, the action of the court in dissolv- 
 ing an injunction will not be reversed, but it 
 will be presumed that a sufficient showing 
 was made to justify the action of the court 
 below i Gray v. Montgomery, 17-66. 
 
 327. Where the evidence is not all before 
 the court, it will be presumed that there was 
 evidence sufficient to support the verdict: 
 State V. Pitman, 38-353. 
 
 328. The same presumptions of regularity 
 obtain in favor of the proceedings in a case 
 in equity as in an action at law. Unless 
 the contrary appears, it will be presumed 
 that the decree was authorized' by the evi- 
 dence: Garner v. Pomroy, 11-149. 
 
 329. Where instructions are objected to as 
 not applicable to the evidence, and the evi- 
 dence is not all before the court, on appeal, 
 it will be presumed that there was evidence 
 to which the instructions were applicable, 
 rather than the contrary : Blackburn v. Pow- 
 ers, 40-681; Gantz v. Clark, 31-354. 
 
 330. Where instructions would bs correct 
 under a possible state of facts, and the evi- 
 dence is not all before the court, it wUl be 
 presumed that the evidence was such as to 
 justify the giving of the instructions: Rice 
 V. Des Moines, 40-638; State v. Hemrick, 
 62-414 ; Wallace v. Robb, 37-192. 
 
 331. Where the evidence upon which the 
 court below has acted is not all before the 
 supreme court, it will be presumed that 
 the action of the lower court was proper 
 under the evidence : State v. Postlewait, 14- 
 446 ; Mcintosh v. Kilhourne, 37-420 ; Laugh- 
 lin V. Main, 63-580. 
 
 b. Error without prejudice; what is 
 and what is not,- effect of. 
 
 See Criminal Law, §§ 1661-1665. 
 
 332. Billing not reviewed unless preju- 
 dicial : An exception will not be regai'ded in 
 the supreme court unless the ruling has been 
 on a material point, and prejudicial to the 
 
APPEAL, V, b. 
 
 61 
 
 Error without prejudipe. 
 
 rights of the party excepting : Bremer County 
 Bank v. Eastman, 34-392. 
 
 333. A judgment will not be reversed for 
 an error committed by the trial court, unless 
 appellant has been prejudiced thereby : Tuclc 
 V. Singer M'f'9 Co., 67-576. 
 
 334. One of two co-parties cannot object 
 on appeal that a judgment against them 
 jointly is erroneous because a judgment 
 against his co-party was not proper, such 
 co-party not having appealed: Hoadley v. 
 Hammond, 68-599. 
 
 335. A case will not be reversed where it 
 appears that no right of the party appealing 
 has been prejudiced, no matter what error 
 may have been committed : Smith v. Eaton, 
 50-488. 
 
 336. A party cannot, on appeal, complain 
 of rulings which are in his favor, or a judg- 
 ment so far as it is in his favor: Boyce v. 
 Wabash R. Co., 63-70: Hintrager v. Hen- 
 nessy, 46-600. 
 
 337. Kulings to Trliicli party consents: 
 The exclusion of evidence, by the consent of a 
 party, cannot be made ground for reversal : 
 Wilson V. McAdams, 10-590. 
 
 338. Waiver of error: Where improper 
 evidence is permitted to remain in a crim- 
 inal case, without objection, the error in 
 its admission is waived: State v. Stickley, 
 41-333. 
 
 339. The action of the court in requiring 
 additional security on a replevin bond, held 
 not to be ground for reversal, as such order 
 could not afiEect the validity of the judgment 
 when rendered on the merits, and the eiTor, 
 if any, was waived by the compliance there- 
 with : Prichard v. Hopkins, 52-120. 
 
 340. Where defendant was by the court 
 ordered to answer, and thereafter obtained 
 an extension of time within which to answer, 
 and, upon his failure to comply, default was 
 entered against him, held, that any error in 
 the first order requiring defendant to answer 
 was error without prejudice : Bock v. Wal- 
 lace., 15-879. 
 
 Amending or pleading over by the party 
 against whom a ruling is made on motion 
 or demurrer will constitute a waiver of 
 any error in such ruling: See Pleading, 
 XIV, e. 
 
 341. Upon the overruling of a party's de- 
 murrer, he may either stand thereon and 
 
 have a review of the ruling 6t the court by 
 appeal, or he may plead over, thereby waiv- 
 ing his right to appeal, or in case no further 
 pleading on his part is necessary to raise the 
 issue, he may waive the issue on the demurrer 
 by proceeding to the trial of the cause. By 
 insisting on judgment for want of pleading 
 or for refusing to jiroceed with the trial of 
 the cause, the adverse party may require 
 the unsuccessful party to either stand upon 
 his demurrer or waive it, and, if he elect to 
 stand upon his demui-rer, judgment may be / 
 entered against him, which naay be final, in 
 case the decision of the court is affirmed on 
 appeal. But, if no such judgment is entered, 
 the affirmance upon appeal will not debar 
 the unsuccessful party from pleading over or 
 proceeding with the trial, as the case may be: 
 Tyler v. Langworthy, 37-555. 
 
 342. Application by a party for the recon- 
 sideration by the court of its ruling on a 
 motion for a new trial will not waive error 
 committed in such ruling and prevent the 
 party from taking advantage thereof on ap- 
 peal : Anderson v. Cahill, 65-252. 
 
 343. Error in former action: Where suit 
 was brought against several defendants for 
 damages arising from illegal sale of intoxi- 
 cating liquors, and the owner of the prop- 
 erty in which the business was conducted 
 was made a joint defendant, and a judgment 
 by default was rendei-ed against one of the 
 sellers, the owner asking to be allowed to de- 
 fend for such party ; and afterward, a change 
 of venue being first had as to the owner, 
 judgnaent was rendered against him making • 
 the first judgment a lien against his prop- 
 erty, held, that he could not on appeal in the 
 latter case raise any error committed in re- 
 fusing him leave to defend in the former 
 case: Putney v. O'Brien, 58-117. 
 
 344. Party cannot object to action se- 
 cured by him: A party having objected tD 
 evidence, which was thereupon adinitted 
 only for a particular purpose, cannot after- 
 wards complain on appeal that such evidence 
 should have been admitted for other pur- 
 poses : Henderson v. Chicago, R. I. & P. B. 
 Co., 48-316. 
 
 345. Where justice has been done: Where 
 it appears that justice has been done, and 
 that a new trial would result in the same 
 verdict or the same judgment, the action of 
 
62 
 
 APPEAL, V, b. 
 
 EiTor without prejudice. 
 
 the court in refusing to grant a new trial on 
 the ground of errors of l9,w committed, will 
 not be reversed on appeal : Dawson v. Wisner, 
 11-6. 
 
 346. If the court below has erred in the 
 decision of a legal proposition, and the su- 
 preme court can see that with the necessary 
 correction the verdict on the second trial 
 must be the same as the first, then the 
 granting of a new trial by the lower court 
 might be reversed ; but if it is not manifest 
 that upon such correction of error the second 
 trial would result as the first, the action of 
 the lower court in granting a new trial will 
 not be interfered with : Braddy v. Lumery, 
 11-29. 
 
 347. While a verdict will not be sustained 
 that is clearly against en-oneous instructions, 
 yet, in a particular case, as the court below 
 did not so regard it, and it appeared that 
 substantial justice was done by the verdict, 
 held, that it would not be reversed for that 
 reason alone : Allison v. King, 25-56. 
 
 348. Judgment will not be reversed be- 
 cause of an alleged erroneous instruction by 
 the court, when the judgment is more favor- 
 able to the appellant than a fair construction 
 of the evidence justifies : McNally v. Shobe, 
 22-49. 
 
 349. Where the jury were not sufiicieutly 
 instructed as to the measure of damages, but 
 it appeared that their verdict was not beyond 
 the just sum that plaintiff ought to recover 
 as lawful damage, h^ld, that the judgment 
 should not be reversed: Cooper v. Central 
 R. of Iowa, 44r-134. 
 
 350. A judgment wUl be afiirmed upon 
 appeal if it is correct, although the reasons 
 given for it by the court below may have 
 been erroneous: Jamison v. Perry, 38-14; 
 Whiting v. Root, 52-293. 
 
 351. A cause wiU not be reversed because 
 of an inconsiderable error in the amount 
 of the judgment rendered: Callanan v. 
 Shaw, 34-441; Keokuk County v. Howard, 
 42-39. 
 
 352. Kemlssion of excess: Where a judg- 
 ment is rendered for an amount in excess of 
 that due, but on appeal the successfvil party 
 offers to remit the excess over the proper 
 amount, the judgment will not be reversed : 
 Morrill v. Miller, 3 G. Gr., 104. 
 
 And see infra, §§ 956-972. 
 
 353. Failure to give nominal damages 
 not ground for reversal: Where substantial 
 justice has been done, a new trial will not be 
 granted for a failure of the jury to award 
 nominal damages: Watson v. Van Meter, 
 43-76. 
 
 354. The supreme court will not reverse a 
 judgment because nominal damages were 
 not allowed, even though it appears that the 
 appellant was entitled thereto: Rowley v. 
 Jewett, 56-493; Phenix Ins. Co. v. Findley, 
 59-591 ; Case Threshing-Machine Co. v. 
 Haven, 65-359; Watson v. Moeller, 63-161. 
 
 355. The supreme court will not reverse a 
 judgment where the error alleged therein in- 
 volves no more than nominal damages: Wire 
 V. Foster, 62-114. 
 
 356. An omission to assess nominal dam- 
 ages, where there is a mere technical right of 
 recovery, is not ground for reversal: Nor- 
 man V. Winch, 65-363. 
 
 357. Although a case will not be reversed 
 where the only right involved is that to nom- 
 inal damages, yet if it does not appear that 
 no more than nominal damages could be re- 
 covered, the refusal of the court to allow any 
 recovery may be reversed : Madison County 
 V. Tullis, 69-730. 
 
 358. That error is prejudicial mnst af- 
 firmatively appear: A party appealing from 
 a ruling of the lower court must not only 
 show aiiirmative error but also error preju- 
 dicial to his substantive rights: Fulmer v. 
 Fulmer, 33-230; Blackburn v. Powers, 40- 
 681 ; Brewington v. Patton, 1-131. 
 
 359. Where the evidence in an action tri- 
 able de novo was not properly certified, and 
 was on motion stricken from the abstract, 
 held, that the court would not consider an 
 alleged error of the court below in dismissing 
 plaintiff's petition, for the reason that even if 
 there was error in the ruling it could not be 
 determined, in the absence of the evidence, 
 whether plaintiff was entitled to recover: 
 Hoy V. Cowgill, 52-711. 
 
 360. Where it is . claimed that the jurors 
 have taken improper considerations into ac- 
 count in determining their verdict, prejudice 
 must be shown, or sufBcient ground must 
 appear for presuming prejudice, to waiT5,nt a 
 reversal on account of I'efusal of the lower 
 court to grant a new trial on that ground : 
 State V. Woodson, 41-435. 
 
APPEAL, V, b. 
 
 C3 
 
 Error without prejudice. 
 
 8G1. Error appearing', presumed preju- 
 dicial: Error in the admission of evidence 
 will not be deemed to have been without 
 prejudice if such evidence is material. The 
 admission of incompetent evidence has been 
 held to be error without prejudice in cases 
 where it appears that the judgment or ver- 
 dict could not have been different had the 
 evidence been excluded, but no such ruling 
 has been made where the evidence held to be 
 unlawful constituted the whole of the proof 
 of the party offering it, or added to the 
 weight of the testimony in his behalf : Smith 
 V. Johnson, 45-308. 
 
 362. When there has been error, a pre- 
 sumption of prejudice arises, and if the record 
 fails to satisfy the supreme court that no prej- 
 udice has been caused, then such error can- 
 not be disregarded : Potter v. Chicago, R. I. 
 & P. R. Co., 46-399 ; Strobel v. Moser, 70 . 
 
 363. Where a conflict in the instructions 
 arises out of one instruction which should 
 not have been given, but which, by mistake, 
 was handed to the jury, and such instruc- 
 tion is inconsistent with others given, al- 
 though it is not shown that such eiToneous 
 instruction was considered and had an effect 
 upon their decision, it will be presumed that 
 it was considered, and the verdict will be set 
 aside: Carlinv. Chicago, R. I. & P. R. Co., 
 81-370. 
 
 364. If the instruction contains an errone- 
 ous enunciation of law, and is merely defect- 
 ive in not stating enough, or not giving all 
 the modifications to which it is subject, it 
 may be presumed, in the absence of a show- 
 ing that all the instructions are before the 
 court, that its defects were cured by other 
 instructions ; but if it is such that any modi- 
 fication thereof properly presenting the law 
 would have been in conflict with it, the error 
 therein will be ground for reversal although 
 all the instructions are not before the court : 
 Bland v. Hixenbaugh, 39-532. 
 
 365. An eiToneous instruction will not be 
 deemed to be without prejudice unless the 
 fact appears affirmatively: Roby v. Appa- 
 noose County, 63-113. 
 
 366. If the instruction is erroneous or mis- 
 leading, it will be presumed that there was 
 evidence to which it was applicable, and 
 that it therefore was prejudicial : Harrison 
 V. Charlton, 37-134. 
 
 867. If error in admitting evidence ap- 
 pears, it must be affirmatively shown to be 
 without prejudice to warrant its being disre- 
 garded: George v. Keokuk & D. M, R. Co., 
 58-503. 
 
 368. Prejudice will be presumed from an 
 erroneous raling upon a motion for change 
 of place of trial: Ferguson v. Davis County, 
 51-330. 
 
 369. While a presumption of prejudice 
 will arise from a legal error, yet such pre- 
 sumption may be overcome ; and where it is 
 made to appear affirmatively that no preju- 
 dice did or could have resulted from the 
 error, the case should not be reversed there- 
 for: Dunne v. Deery, 40-251. 
 
 370. Error without prejudice iu g'en- 
 eral: A judgment will not be reversed in 
 consequence of errors which do not operate 
 injuriously upon the party seeking reversal : 
 Granger v. Buzick, 3 G. Gr. , 570. 
 
 371. A case will not be reversed on account 
 of error in the action of the court below 
 which has worked no prejudice to the appel- 
 lant: Union AgH, etc., Ass'n v. Neill, 31-95; 
 Wile V. Wright, 33-451 ; Hamilton v. Floyd, 
 20-598; Crawford v. Paine, 19-173; Bell v. 
 Byerson, 11-238. 
 
 372. Errors subsequently cured: Where 
 an action of the court is at the time errone- 
 ous (as for instance in admitting a veritten 
 instrument without proper proof of the sig- 
 nature), yet if subsequent evidence is such as 
 to render the action of the court proper there- 
 under, there is no ground for reversal : Daven- 
 port V. Cummings, 15-319. 
 
 373. Judgment in favor of the party bene- 
 ficially interested will not be reversed on ac- 
 count of error of the referee in finding in 
 favor of a party not entitled: Williams v. 
 Brown, 28-247. 
 
 374. Errors which have ceased to be 
 prejudicial: A judgment will not be re- 
 vei'sed which, however erroneous when made, 
 has, by reason of a change in circumstances, 
 ceased to be prejudical to the complaining 
 party : State ex rel. v. Waterloo Savings 
 Bank, 39-706. 
 
 375. The supreme court will not reverse a 
 case in behalf of a party where the right 
 which he seeks to protect, if it ever existed, 
 has expired: Cutcompv. Utt, 60-156. 
 
 376. The improper substitution of a new 
 
C4 
 
 APPEAL, V, b. 
 
 Error without prejudice. 
 
 appeal bond on an appeal from a justice of 
 the peace, held to be error without prejudice 
 where judgment on such appeal was for the 
 party appealing and giving tlie bond : Ham- 
 mitt V. Coffin, 3 G. Gr., 205. 
 
 377. Where persons bound over to await 
 the action of the grand jury bring a proceed- 
 ing, by habeas corpus, to test the correctness 
 of the action of the magistrate, and being 
 remanded to custody thereupon appeal from 
 such order, a subsequent indictment by the 
 gi'and jury for the same offense will render 
 the decision in the habeas corpus proceeding 
 immaterial and the appeal will be dismissed : 
 Witmore v. Burgan, 70 . 
 
 378. Refasal to strike out imiuiiterial 
 matter in a pleading, upon motion, cannot 
 be reviewed upon appeal : Abbott v. Striblen, 
 6-191. 
 
 379. Bnlinss upon deniiirrer, when 
 deemed without prejudice: The fact that a 
 demurrer based on an insufficient ground is 
 erroneously sustained, will not be ground for 
 reversal, where there could have been no re- 
 covery upon the count of the petition to 
 which the demurrer was directed : Childs v. 
 Dobbins, 61-109. 
 
 380. Wliere the lower court, in ruling on a 
 demurrer to a petition, erroneously sustains it 
 as to some portions thereof, but the action is 
 determined in favor of plaintiff, and he is 
 given the relief demanded, the ruling on the 
 demurrer will be considered as error without 
 prejudice : Scott v. Union County, 63-583. 
 
 381. The fact that the court erroneously 
 sustains a demurrer to a count of the answer 
 is error without prejudice, where the issue 
 raised by such count is elsewhere presented 
 and passed upon by the jury : McKeever w. 
 Jenks, 59-300. 
 
 382. Where a demurrer to a petition was 
 overruled and plaintiff thereupon filed an 
 amended petition setting out the cause of 
 action fully, held, that any error of the court 
 in o^■erruling the demun-er was without prej- 
 udice to the defendant: Gillis'v. Matthews 
 4G. Gr., 254. 
 
 383. Where a demurrer to a portion of an 
 answer was overruled, but under the instruc- 
 tions the issue thereby presented was, by im- 
 plication, excluded from the jury and not 
 considered by them, held, that the error, if 
 any, in the ruling on the demurrer was with- J 
 
 out prejudice: Flanagan v. McWilliams, 
 53-148. 
 
 384. Where a demurrer is erroneously sus- 
 tained upon one ground, and overruled upon 
 another as to which it should have been sus- 
 tained, the action of the court will be re- 
 versed on appeal in order that the appellant 
 may be enabled to take such action as he 
 might have taken in the lower court if the 
 demurrer had been sustained on a proper 
 ground: District T'p v. Independent Dist, 
 63-188. 
 
 And see, as to affirmance on other grounds, 
 infra, §§ 916-918. 
 
 385. Error in striking defendant's an- 
 swer from the files, on motion, is cured by 
 subsequently allowing defendant to prove 
 the defense alleged, when the evidence fails 
 to establish the same : McNamara v. Estes, 
 82-846. 
 
 386. Refusal to allow an amended an- 
 swer to be filed will be deemed error with- 
 out prejudice, where it appears that all the 
 facts alleged in the amended answer might 
 have been proven under the original answer : 
 Hough V. Housel, 20-19. 
 
 387. Allowance of an amendment which 
 works no prejudice to the party appealing 
 cannot be made a ground for reversal : Tabor 
 V. Foy, 56-589. 
 
 388. Incompetency of a juror: Where 
 an objection to a juror based upon his having 
 a previously formed opinion with reference 
 to the facts relating to a certain issue in the 
 case was ovei-ruled, held, that such ruling 
 would be error without, prejudice where it 
 appeared that the facts as to that issue in the 
 case were not in controversy: Albia v. 
 O'Harra, 64^397. 
 
 389. Error without prejudice in the 
 rulings upon evidence: Where, from the 
 instructions or from other parts of the rec- 
 ord, it is m^de to appear that error in the 
 admission of testimony has worked no prej- 
 udice to the party objecting, the cause 
 should not be reversed on that ground: 
 Woodward v. Horst, 10-120. 
 
 390. A cause will not be reversed for the 
 admission of evidence which cannot have 
 been prejudicial to the party complaining, 
 even though such evidence was inadmissible : 
 Quinton v. Van Tuyl, 30-554; Cooper v. 
 Mills County, 69-350. 
 
APPEAL, V, b. 
 
 65 
 
 Error without prejudice. 
 
 391. Where, under the issues and the evi- 
 dence, plaintiff could not recover, even had 
 defendant introduced no evidence whatever, 
 any error in the admission or exclusion of 
 evidence cannot be complained of by plaint- 
 iflE : George v. Eason, 69-461. 
 
 302. Where it appears that answers to 
 questions which were properly objected to 
 were favorable rather than adverse to the 
 party objecting, the overruling of the objec- 
 tion will be considered as error without prej- 
 udice : Andrews v. Woodooch, 14-397 ; Drath 
 V. Deitz, 15-436. 
 
 393. A judgment will not be reversed for 
 improper rejection of testimony when the 
 court is satisfied that justice has been done 
 and that there is no reason to believe that a 
 different result would be reached upon a new 
 trial: Pelamourges v. Clark, 9-1. 
 
 394. Where the jury have returned their 
 verdict against a party seeking to recover, 
 any error in the admission of evidence hav- 
 ing a tendency merely to limit the extent of 
 his recovery will be error without prejudice : 
 ■Chambers v. Grout, 63-343. 
 
 396. The admission of unimportant and ir- 
 relevant evidence, if without prejudice, wiU 
 not operate to reverse a case on appeal, 
 though such admission may have been error ; 
 McKemiev. Kitler, 87-354; Curl v. Chicago, 
 JR. I. &P. R. Co., 63-417. 
 
 396. Where immaterial evidence was ad- 
 mitted, in the main without objection, held, 
 that the judgment would not be reversed be- 
 cause an inconsiderable portion thereof was 
 admitted over the party's objection: Weitz 
 v. Ewen, 50-34. 
 
 397. The admission of immaterial evi- 
 dence will not constitute reversible en-or 
 where it does not appear that it did or could 
 have affected prejudicially the rights of 
 appellant: Walsh v. ^tna L. Ins. Co., 
 30-133. 
 
 398. Admission of evidence in a particular 
 ■case, held error without prejudice : State v. 
 Mewherter, 46-88. 
 
 399. Error in admitting evidence held 
 cured by a subsequent admission, by the 
 party objecting, of the fact which the evi- 
 dence tended to prove: Murray v. Wells 
 •57-36. 
 
 400. The supreme court will not reverse a 
 •case for the rejection of testimony which, if 
 
 Vol. 1—5 
 
 admitted, could not have changed the ver- 
 dict: Robinson v. Keith, 35-331. 
 
 401. The exclusion of a deposition will not 
 be made a ground for reversal, where it ap- 
 pears that it does not tend to prove or dis- 
 prove any fact in issue between the parties: 
 Kelly V. Ford, 4-140. 
 
 402. Exclusion of testimony which could 
 not possibly have tended to establish the de- 
 fense will not be ground for reversal on be- 
 half of defendant : State V. Hallett, 63-359. 
 
 403. Error in refusing to exclude evidence 
 will not be sufficient ground for reversal 
 where the result must have been the same 
 if the evidence had been excluded : Brayley 
 V. Ross, 33-505; Courtwright v. Strickler, 
 37-383 ; Jaques v. Sax, 39-367. 
 
 404. A cause will not be reversed for the 
 admission of evidence which does not cast 
 any greater burden upon the opposite party 
 than he would have had without the admis- 
 sion of such evidence : Barker v. Kuhn, 38- 
 393. 
 
 405. Admission of improper evidence as to 
 a matter which is self-evident or of common 
 observation known to all men, and in accord 
 with such common observation, cannot be 
 considered prejudicial: State v. Smith, 46- 
 670 ; Kline v. Kansas City, St. J. & C. B. R. 
 Co., 50-656. 
 
 406. The admission of evidence and giv- 
 ing instructions as to a certain matter, held 
 to be error without prejudice, in view of the 
 fact that the successful party was entitled to 
 recover without regard to such evidence and 
 instructions: Langford v. Ottumwa Water 
 Power Co., 59-383. 
 
 407. Where a record shows affirmatively 
 that evidence which was improperly intro- 
 duced did not influence the result or preju- 
 dice the party complaining, the judgment 
 will not be disturbed on appeal : Amsden v. 
 Dubuque & S. C. R. Co., 13-133. 
 
 408. Where the supreme court are unable 
 to see that evidence erroneously admitted 
 could have had any effect on the jury preju- 
 dicial to the party complaining, the error 
 will not be considered sufficient ground for 
 reversal: Holt v. Brown, 63-319. 
 
 409. The exclusion of evidence will consti- 
 tute error without prejudice where the wit- 
 ness is afterwards allowed to testify fully as 
 to the matters called for by the question ob- 
 
66 
 
 APPEAL, V, b. 
 
 Error without prejudice. 
 
 jeoted to : Keough v. Scott County, 28-337 ; 
 State V. Oeddis, 43-264; Allison v. Chicago 
 & N. W. R. Co., 42-274 ; Ham v. Wisconsin, 
 I. & N. R. Co., 61-716; Beed v. Chicago, R. 
 I. & P. R. Co., 57-23. 
 
 410. Error in excluding evidence is cured 
 by afterwards admitting it: Abell v. Cross, 
 17-171. 
 
 411. So if the witness testifies on cross- 
 examination as to the matters with reference 
 to which his testimony is erroneously ex- 
 cluded on direct examination, the error is 
 cured : State v. Nelson, 58-208. 
 
 412. Error in allowing the introduction of 
 a portion only of a deposition, held to be 
 error without prejudice in view of the fact 
 that the entire deposition was afterwards in- 
 troduced : Bixby v. CarsJcaddon, 68-164. 
 
 413. The overruling of a motion to sup- 
 press a deposition is error without prejudice, 
 where the witness testifies in person on the 
 trial and such testimony is more favorable to 
 the party complaining than that in the deposi- 
 tion : Curry v. Allen, 60-887. 
 
 414. Judgment will not be reversed for 
 erroneous admission of evidence to establish 
 a fact which is sufficiently established by 
 other and competent evidence: Ellwood v. 
 Wilson, 31-523 ; MaOrary v. Deming, 88-527 ; 
 Le Grand Quarry Co. v. Reichard, 40-161; 
 Wallace v. Wallace, 62-651 ; State v. Shelton, 
 64-333; Jackson v. Boyles, 64^-438. 
 
 415. "Where a deposition was admitted 
 over the objection of the opposite party, and 
 without such deposition there was ample 
 evidence to support the verdict and judg- 
 ment of the court, held, that the admission 
 of such deposition, if error at all, was error 
 without prejudice: Stone v. Ballingall, 41- 
 291. 
 
 416. EiToneous admission of evidence will 
 not be ground for reversal where, in view of 
 other evidence properly admitted, and the 
 verdict of the jury, it is clear that the error 
 did not affect the result: Belair v. Chicago 
 &N. W. R. Co., 43-663. 
 
 417. A judgment will not be reversed for 
 error in admitting testimony to prove title 
 when the title is subsequently established by 
 competent evidence: Des Moines v. Casady. 
 21-570. 
 
 418. Error in rejecting evidence will be 
 deemed to have been without prejudice 
 
 where the facts to be proven by such evi- 
 dence are otherwise fully established : Loive 
 V. Lowe, 40-330 ; State v. Woodson, 41-425 ; 
 Hoadly v. Hammond, 63-599. 
 
 419. The exclusion of cumulative evidence 
 as to a fact otherwise fully established will 
 be error without prejudice: State v. Pratt, 
 40-631. 
 
 420. Held, that defendant was not preju- 
 diced by the rejection of testimony which 
 had been once introduced and was again of- 
 fered to the jury: Smith v. Howard, 38-51. 
 
 421. So where immaterial evidence was 
 allowed as to the measure of damages, but it 
 appeared from the nature of the verdict that 
 no prejudice could have resulted from its ad- 
 mission, held, that the cause would not be 
 reversed on account of such mere abstract 
 error : Hubbard v. Mason City, 60-400. 
 
 422. Where the jury has failed to allow 
 exemplary damages, any error in the ad- 
 mission of evidence as to malice will be 
 eiTor without prejudice: Brown v. Hendrick- 
 son, 69-749. 
 
 423. The admission of evidence upon a 
 prosecution for murder, tending to show 
 malice and deliberation, held error without 
 prejudice in view of the fact that defendant 
 was convicted only of manslaughter : State 
 V. Middleham, 62-150. 
 
 424. Where a witness, in a prosecution for 
 assault with intent to commit murder, gave 
 evidence tending to show malice, and a 
 cross-question to such witness by defendant's 
 counsel was overruled, held, that as defend- 
 ant was convicted only of assault and bat- 
 tery, the ei-ror, if any, was without preju- 
 dice : State v. Oraham, 51-72. 
 
 425. A cause will not be reversed on ap- 
 peal upon the ground that the evidence is 
 not admitted in the proper order or for the 
 reason that a fact which should be proved 
 in the first instance by one party is estab- 
 lished by the testimony of the other : Cook 
 M'fg Co. V. Randall, 62-244. 
 
 426. Where the record does not show what 
 evidence was admitted or excluded, the court 
 cannot determine whether appellant was 
 prejudiced by any ruling of the court in 
 reference thereto : Lucas v. Jones, 44r-398. 
 
 427. If, in answer to an improper ques- 
 tion, matter is elicited not responsive thereto, 
 the error of the court in oven-uling an ob- 
 
APPEAL, V, b. 
 
 67 
 
 Error without prejudice. 
 
 jeotion to the question will not justify a re- 
 versal on the ground of prejudice from the 
 part of the answer not responsive to the 
 question. In such case the court should be 
 asked to strike out the irresponsive matter : 
 Hatfield v. Chicago, B. I. & P. B. Go., 61- 
 434. 
 
 428. A verdict will not be set aside because 
 in conflict with evidence which is irrelevant 
 and immaterial, even th-ough admitted with- 
 out objection: Scott V. Morse, 54^733. 
 
 429. A cause will not be reversed on the 
 ground that an objection to an improper ques- 
 tion has been overruled, if the question itself 
 was not followed by an improper answer: 
 State V. Groome, 10-308. 
 
 Error in ruling upon objections to evidence 
 will be deemed to be without prejudice, un- 
 less it appears that the questions were an- 
 swered, and that such answers were prejudi- 
 cial, or that if improperly excluded the 
 evidence would have been material: See 
 supra, §§ 244-258. 
 
 430. Error in the admission of improper 
 evidence is error without prejudice if the 
 court plainly directs the jury to disregard 
 such evidence: Cook v. Robinson, 42-474. 
 And see, further. Instructions, §§ 2B5-261. 
 
 431. Error without prejudice in g^iving 
 instrnctioiis: A case will not be reversed for 
 the giving of an erroneous instruction which 
 could not have worked any prejudice to the 
 complaining party: McKay v. Leonard, 17- 
 569 ; Clagett v. Conlee, 16-487 ; Ocheltree v. 
 Carl, 33-394; Hunt v. Chicago & N. W. R. 
 Co., 26-363 ; Horr v. Reed, 20-591 ; Thompson 
 V. Blanchard, 2-44; Blackburn v. Powers, 
 40-681 ; State v. Hart, 67-142. 
 
 432. The giving of an irrelevant instruc- 
 tion will be considered error without prej- 
 udice where it could not have been detri- 
 mental to the party complaining : Sullivan v. 
 Finn, id. Gr., 544. 
 
 433. "Where the result could not have been 
 different if erroneous instructions which 
 were given by the court had not been given, 
 the giving of such instructions will be 
 deemed error without prejudice : Farwell v. 
 Salpaugh, 32-582. 
 
 434. The failure to give a correct instruc- 
 tion will not be reversible error, if, even had 
 the instruction been given, the result must 
 have been the same, and any other verdict 
 
 would properly have been set aside : Cedar 
 Falls & M. B. Co. v. Rich, 83-113; Olson 
 V. Neal, 63-214. 
 
 435. The refusal to give a correct instruc- 
 tion as to a matter properly before the jury 
 will be error without prejudice if the jury 
 specially find that the facts on which the in- 
 struction was founded did not exist : Martin 
 V. Algona, 40-390; Clinton Nat. Bank v. 
 Graves, 48-338. 
 
 436. While instructions should apply to 
 the facts proved, yet, although they have no 
 such application if they could have no effect 
 upon the verdict, they will afford no ground 
 for reversal, however erroneous ; but if erro- 
 neous, and it appears that they could have 
 had an influence prejudicial to the interests 
 of the excepting party, the judgment wUl be 
 reversed: McGregor v. Armill, 2-30. 
 
 437. The giving of an erroneous instruc- 
 tion which, .under the testimony, could work 
 no prejudice to the party complaining, will 
 not be regarded as r'eversible error: First 
 Nat. Bank v. Breese, 39-640. 
 
 438. Where it is clear from the verdict 
 that the jury have not been misled by an 
 erroneous instruction, the giving thereof will 
 not be ground for reversal : Gwinn v. Craw- 
 ford, 42-63 ; Peake v. Conlan, 43-297. 
 
 439. In a particular case, held, that while 
 an instruction was improper for the reason 
 that there was no evidence to support it, the 
 giving of it was, under the circumstances, 
 error without prejudice : Parkhurst v. Mas- 
 teller, 57-474. 
 
 440. Error in giving an instruction will be 
 error without prejudice where the verdict of 
 the jury is in favor of the person complain- 
 ing : Dunham v. Dennis, 9-543. 
 
 441. Where an erroneous instruction as to 
 a particular matter is given, but from the 
 verdict it is appai-ent that the jury have 
 adopted a view of the case which renders 
 such matter immaterial, the error will be con- 
 sidered as without prejudice : Hall v. Stewart, 
 58-681 ; Hall v. Ballon, 58-585. 
 
 442. Error in the giving of an instruction 
 will be without prejudice where it appears 
 that the jury have made such a finding upon 
 the facts that such instruction can have had no 
 influence upon the resuit : Keyser v. Kansas 
 City, St. J. & C. B. R. Co., 61-175; Lathrop 
 V. Central Iowa B. Co., 69-105. 
 
APPEAL, V, b, c. 
 
 Error without prejudice.— New trial. 
 
 443. Where an instruction in stating the 
 liability of defendant fails to notice a lim- 
 itation on that liability, but the evidence 
 clearly shows the non-existence of such lim- 
 itation, the eiTor in failing to state the lim- 
 itation will be deemed to be without preju- 
 dice : Brenhier v. Chicago, M. & St. P. R. 
 Co., 68-530. 
 
 444. Where instructions were given as to 
 the right of plaintiff to recover exemplary 
 damages, which were claimed to be erro- 
 neous, held, that as, under the circum- 
 stances, plaintiff was not entitled to actual 
 damages, the instruction was, if erroneous, 
 error without prejudice: Myers v. Wright, 
 44-38. 
 
 445. Where the verdict necessarily im- 
 plies the finding of every fact as established 
 which under the law is required to establish 
 right to recovery, there is no ground to set 
 aside the verdict, even though under the in- 
 structions plaintiff was required to prove in 
 addition, as a condition of his right to re- 
 cover, another fact which was not essential : 
 Tuck V. Singer M'fg Co., 67-576. 
 
 44(). Error in general instructions to the 
 jury as to matters of law will be deemed 
 error without prejudice where the verdict of 
 the jury is special, having no connection or 
 relation whatever with any principle of law : 
 Wilkinson v. Connecticut Mut. L. Ins. Co., 
 30-119. 
 
 447. Where the jury has, by special find- 
 ings, determined every fact necessary to 
 authorize judgment, error in giving or refus- 
 ing instructions as to the legal conclusions to 
 be drawn from such facts will constitute 
 error without prejudice: Boals v. George, 
 30-601. 
 
 448. It is not error to refuse instructions 
 asked which are substantially given in the 
 charge of the court: Willielm v. Fimple, 
 31-131. And see Instructions, II. 
 
 449. A party cannot claim that he has 
 been prejudiced by the failure to instruct at 
 his request as to what his rights would have 
 been under a condition of things which the 
 verdict shows conclusively did not exist: 
 Wilhelm v. Fimple, 31-131. 
 
 . 450. Judgment will not be reversed be- 
 cause of an erroneous instruction given by 
 the court below when the controlling ques- 
 tion in the case was fairly left to the jury, 
 
 and correctly decided by them : Bondurant 
 V. Crawford, 33-40. 
 
 451. If a party complains of erroneous in- 
 structions he must not only show the error, 
 but that it i-esulted to his prejudice, and for 
 that purpose it must appear that judgment 
 was rendered against him : Shannon v. Scott, 
 40-639. 
 
 452. Where it is evident that improper in- 
 structions could have reasonably misled the 
 jui-y to appellant's prejudice, the court will 
 reverse the case and order a new trial, but 
 not so where the prejudice is not manifest : 
 Eyser v. Weissgerber, 3-463. 
 
 453. The giving of an erroneous instruc- 
 tion held not to be error without prejudice in 
 a particular case : Kendig v. Overhulser, 58- 
 195. 
 
 As to what the record must contain in 
 order to authorize the court to pass upon 
 ei-rors in instructions, see supra, §g 359-370. 
 
 c. Action of lower court in granting 
 or refusing new trial. 
 
 In general, as to granting or refusing new 
 trials, see New Trials. 
 
 454. Discretion not interfered with: A 
 motion for a new trial is addressed to the 
 sound discretion of the court, and such dis- 
 cretion will not be interfered with, on appeal, 
 unless it is manifest that it has been im- 
 properly exercised : Freeman v. Rich, 1-504 ; 
 Ruble V. McDonald, 7-90 ; Pickering v. Kirk- 
 patriok, 33-163. 
 
 455. The discretion of the lower court in 
 granting or refusing a new trial will not be 
 interfered with upon light grounds or for 
 trivial causes: Langworthy v. Meyers, 4-18. 
 
 456. Such discretion should not be con- 
 trolled except in a clear case of abuse : New 
 York Piano Forte Co. v. Mueller, 38-553. 
 
 457. Although an erroneous decision of 
 the lower court on an application for a new 
 trial may be made a ground for review and 
 correction on appeal, yet a strong case must 
 be presented to authorize the interposition of 
 the supreme court: Brazelton v. Jenkins, 
 Mor., 15. 
 
 458. A wide latitude is given to the dis- 
 cretion of the lower com-t in granting or re- 
 fusing new trials, and this discretion will 
 not be interfered with except where palpable 
 
APPEAL, V, o. 
 
 69 
 
 New trjal. 
 
 injustice has resulted to the party making the 
 application, which injustice must be made 
 manifest : Hendricks v. Wallis, 7-334. 
 
 459. The action of the court in sustaining 
 a motion for a new trial rests largely in its 
 own discretion, which cannot be interfered 
 with unless an error plainly appears. The 
 supreme court is inclined to support rul- 
 ings gi'anting a new trial rather than sub- 
 ject them to close and critical examination : 
 Donahue v. Lannan, 70 . 
 
 460. The presumption is in favor of the 
 ruling of the trial court on a motion for new 
 trial: Conklin v. Dubuque, 54-571; Johnson 
 V. Chicago, R. I. & P. R. Co., 58-348; Hill v. 
 Denslinger, 61-240. 
 
 461. Where new trial Is refused ; suffi- 
 ciency of evidence: The supreme court must 
 be fully satisfied that the discretion of the 
 court below has been improperly exercised in 
 refusing a new trial, before it will disturb 
 such ruling and pass upon the insufficiency 
 of the testimony : Freeman v. Rich, 1-504. 
 
 462. The supreme court will not, on- ap- 
 peal from th^ action of the trial court in re- 
 fusing a new trial, consider the weight of the 
 testimony: Lloyd v. McClure, 2 6. Gr., 139. 
 
 As to sufficiency of evidence to support the 
 verdict in criminal cases, see Criminal Law, 
 §§ 1677-1683. 
 
 463. Conflict in evidence: The action of 
 the lower court, in overruling a motion for a 
 new trial based on the ground that the ver- 
 dict is against the evidence, will not be inter- 
 fered with, on appeal, if the conflict in the 
 testimony is great, and its weight is not 
 clearly against the verdict : AcJcley v. Berkey, 
 22-226. 
 
 464. Where there is a conflict in the evi- 
 dence, the action of the court below in over- 
 ruling a motion for a new trial will not be 
 disturbed, on appeal, unless a clear case of 
 abuse of discretion is made to appear: Hub- 
 bell V. Ream, 31-289. 
 
 465. Where there is a conflict in the evi- 
 dence, the supreme court will not interfere 
 with the action of the lower court in refus- 
 ing to set aside the verdict on the ground 
 that it is not supported by the evidence: 
 Chambers v. Broivn, 69-313. 
 
 466. Where the evidence is conflicting, 
 and the court below, which heard the evi- 
 dence, with full opportunity for observing 
 
 the manner and appearance of the witnesses, 
 has overruled a motion for a new trial on the 
 ground that it is not supported by the evi- 
 dence, the supreme court will not interfere : 
 Snyder v. Eldredge, 31-129 ; Mahaney v. Bell, 
 43-388. 
 
 467. The discretion of the trial court in 
 overruling a motion for a new trial on the 
 ground that the verdict is contrary to the 
 evidence will not be reversed where there is 
 a conflict in the testimony : Russ v. Steam- 
 boat War Eagle, 14-363 ; Brochman v. Berry- 
 'hill, 16-183; Burlington Gas Light Co. v. 
 Green, 22-508; Pierce v. Walker, 23-424; 
 McCabev. Knapp, 23-308; Callananv. Shaw, 
 24-441 ; Schrimper i\ Heilman, 24r-505 ; Hull 
 V. Alexander, 26-569; Sherman v. Western 
 Stage Co., 34-515, 554 ; Garland v. Wholeham, 
 26-185 ; Todd v. Branner, 30-439 ; Snyder v. 
 Nelson, 31-238; Bergert v. Davenport City 
 R. Co., 34-571. 
 
 468. Terdict against manifest justice: 
 When the court conscientiously believes that 
 a verdict is against the truth or the vsfeight 
 of the submitted evidence, a new trial should 
 unhesitatingly be ordered ; but to justify such 
 inference the mind should be brought irre- 
 sistibly to the conclusion that the verdict 
 was not the result of a free, sound and-im- 
 biased exercise of judgment on the part of 
 the jury, and that manifest injustice would 
 result if the verdict is permitted to stand : 
 McKay v. Thorington, 15-25. 
 
 469. Whenever a verdict is clearly, not 
 doubtfully, against the manifest justice of 
 the case, it is the duty of the trial judge un- 
 hesitatingly to set it aside ; but where there 
 is a conflict of evidence, and the jury, being 
 clearly charged as to the law, have found a 
 verdict which the trial court has refused to 
 set aside, the supreme court will not inter- 
 fere : Smith v. Williams, 23-28. 
 
 470. Manifest error: The error in over- 
 ruling a motion for new trial must be clearly 
 manifest to warrant a reversal : Bellamy v. 
 Doud, 11-285. 
 
 471. Yerdict against immaterial evi- 
 dence: To justify the granting of a new trial 
 on the groilnd that the verdict is against the 
 weight of the evidence, such want of evidence 
 must relate to a, material issue legitimately 
 raised by the pleadings. The refusal of the 
 lower court to grant a new trial when the 
 
70 
 
 APPEAI-, V, c. 
 
 New trial. 
 
 objection is that the verdict is contrary to im- 
 material evidence, though admitted without 
 objection, will not be reversed or disturbed on 
 appeal: Parker v. Hendrie, 3-263; Scott v. 
 Morse, 54^733. 
 
 472. Terdict supported by evidence: It 
 is not the province of the supreme court to 
 overrule both the jury and the lower court 
 in a conclusion reached by them as between 
 conflicting evidence : Sloan v. Central Iowa 
 a. Co., 63-728. 
 
 473. Where the verdict finds support in 
 the evidence the supreme court will not 
 reverse the action of the court below in re- 
 fusing to grant a new trial, although it be- 
 lieves that the preponderance of evidence is 
 the other way : Johnson v. Chicago, B. I. & 
 P. a. Co., 58-848. 
 
 474. Excessive verdict: The court below, 
 having a fuU opportunity of understanding 
 whether the verdict is excessive, should fear- 
 lessly assume the responsibility of setting it 
 aside on that ground, but the supreme court 
 will be very reluctant to disturb verdicts in 
 this respect : Bower v. Burlington & S. W. R. 
 Co., '43-546. 
 
 475. Where, in an action for personal in- 
 juries, the jury has rendered a verdict which 
 the court below has refused to set aside as 
 excessive, the supreme court will not, ordi- 
 narily, interfere : Brown v. Jefferson County, 
 16-389. 
 
 As to remitting amount deemed excessive, 
 see infra, §§ 956-973. 
 
 476. Wliat tlie record must show: The 
 supreme court cannot undertake to say that 
 the lower court has abused its discretion, 
 either in granting or refusing a new trial, 
 unless the whole case is presented to it by 
 the record : Barker v. Brown, 1.5-70. 
 
 . And see supra, IV, 3. 
 
 477. Action of lower court overruled: If 
 the verdict is clearly in conflict with the 
 evidence, and works manifest injustice, the 
 refusal of the trial court to grant a new trial 
 may be overruled on appeal : Sadler v. Bean, 
 88-684. 
 
 478. Where there is no doubt as to the 
 incorrectness of the verdict, the supreme 
 court will grant relief therefrom by over- 
 ruling the action of the lower court in re- 
 fusing a new trial : Martin v. Omdorff, 20- 
 217. 
 
 479. Where material findings of fact in a 
 special verdict are wholly unsupported by 
 the evidence, and the court below has over- 
 ruled a motion for new trial, the supreme 
 court will reverse the judgment : MoCarty v. 
 James, 63-357. 
 
 480. Where it clearly appears that the ver- 
 dict is in conflict with the evidence, the 
 supreme court will, on appeal, reverse the 
 decision of the trial court in overruling a 
 motion for a new trial based on that ground : 
 Lester v. Sallack, 31-477. 
 
 481. Passion or prejudice: But such de- 
 cision will not be disturbed unless so barren 
 of support as to warrant the finding that it 
 was the result of passion or prejudice: 
 Sehermer v. Oendt, 52-743. 
 
 482. Verdict not the result of free and 
 unbiased judg'ment: Where the mind is 
 brought inevitably to the conclusion that the 
 verdict was not the result of a free, honest, 
 and unbiased exercise of judgment on the 
 testimony submitted, and that manifest in- 
 justice wiU result if judgment is rendered 
 thereon, the court below should gi'ant a new 
 trial ; and where such a case is made clearly 
 apparent to the supreme court, a. new trial 
 will be ordered, though refused by the court 
 below: Jourdan v. Heed, 1-135; Fawcett v. 
 Woods, 5-400; Byington v. Woodward, 9- 
 360. 
 
 483. Discretion subject to review: The 
 discretion of the court in granting or over- 
 ruling a motion for new trial is a legal one, 
 and must be exercised according to the rules 
 of law: Steivart v. Burlington & M. R. R. 
 Co., 11-62 ; Stockwell v. Chicago, C. & D. R. 
 Co., 43-470. 
 
 484. An error of the court in gianting or 
 refusing a new trial on a legal proposition is 
 reviewable on appeal with no more presump- 
 tion in its favor than a ruling made in any 
 other stage of the case : Byington v. Wood- 
 ward, 9-360. 
 
 485. Where the court below, in granting 
 or refusing a new trial, misstates a legal 
 proposition, it is as much the subject of revis- 
 ion as any other question. In such cases the 
 granting or refusing the motion is not a ques- 
 tion of discretion, but is to be determined 
 upon the law applicable to the case : Stewart 
 V. Ewbank, 3-191; Riley v. Mondhan, 26- 
 507. 
 
APPEAL, V, c. 
 
 71 
 
 New trial. 
 
 486. While in most cases the question of 
 the granting of a new trial is within the 
 sound discretion of the trial court, and such 
 discretion will not be interfered with, yet, if 
 the gi'ounds for a new trial appear of record 
 and come within the well recognized rules of 
 law, the action of the court in refusing a 
 new ti'ial may be reversed: Jones v. Fenni- 
 more, 1 G. Gr., 134; Shaw v. Sweeney, 2 G. 
 Gr., 587; Hmnphreys v. Hoyt, 4 G. Gr., 245; 
 In re Will of Coffman, 13-491. 
 
 487. Other grounds for new trial : Where 
 the ground for new trial is accident or sur- 
 prise, or that injustice has been done, the 
 trial court is vested with a large discretion 
 which will not be interfered with on ap- 
 peal unless the error affirmatively appears: 
 Hill V. Denslinger, 61-240. 
 
 488. The action of a trial court in passing 
 upon misconduct of counsel as a ground for 
 new trial will be sustained on appeal unless 
 it clearly appears to have been erroneous: 
 Sunberg v. Babcock, 66-515. 
 
 48 ^. Whether a new trial should be granted 
 for misconduct of the jury is left largely to 
 the sound discretion of the trial court, which 
 is in a much better position to determine 
 whether the rights of the parties have been 
 affected by such misconduct than the su- 
 preme court can be, and if the lower court 
 has determined that there should be another 
 trial on that ground, its discretion will not be 
 interfered with unless it is made to appear 
 very clearly that there has been an abuse of 
 discretion : Perry v. Oottingham, 63-41. 
 
 490. Where, upon the allegations of mis- 
 conduct of the jury made as a ground for a 
 new trial, there is a conflict in the evidence, 
 the finding of the court in ruling upon such 
 motion must have the same force as its find- 
 ing upon any other question of fact arising 
 in an action at law: Watson v. Stotts, 68- 
 659. 
 
 491. The supreme court will not interfere 
 with the action of the court below in refusing 
 to grant a new trial on the ground of mis- 
 conduct of the jury where there is a conflict 
 in the evidence as to the nature of such mis- 
 conduct : Todd V. Branner, 30-439. 
 
 492. A new trial will not be granted on 
 appeal when a witness has given material 
 evidence without being sworn, unless it be 
 shown that the party complaining, or his 
 
 attorney, did not know of the fact until after 
 the verdict : Riley v. Monohan, 26-507. 
 
 493. Where new trial is granted: An 
 order granting a new trial may be reviewed : 
 Stewart v. Ewhank, 3-191 ; Cooh v. Sypher, 
 3-484 ; Newell v. Sanford, 10-896. 
 
 494. But the supreme court will exercise 
 a presumption in favor of the correctness of 
 the ruling of the court below, and will not 
 interfere with an order granting a new trial 
 where it does not affirmatively appear that 
 the action is erroneous: Boardman v. Chi- 
 cago <& N. W. R. Co., 33-391. 
 
 495. It is a constant practice in the su- 
 preme court to refuse to disturb the action of 
 the court below when a new trial is granted, 
 although the ruling of the lower court would 
 also have been upheld if the new trial had 
 been refused: Ibid.; McKay v. Thorington, 
 15-35. 
 
 496. When the trial court determines that 
 the verdict is contrary to the evidence, and 
 ought to beset aside on that ground, the case 
 must be a very clear one to warrant an ap- 
 pellate court in interfering with its action : 
 Moran v. Harris, 63-390. 
 
 49 7. Where the trial judge has determined 
 that the fair administration of the law de- 
 mands that a new trial should be granted 
 for any cause which the law recognizes as a 
 ground for a new trial, his action wiU be in- 
 terfered with on appeal only when it is shown 
 that he has abused the discretion with which 
 the law vests him : Rogers v. Winch, 65-168. 
 
 498. The action of the court in setting 
 aside a verdict and granting a new trial wOl 
 not be interfered with where it does not ap- 
 pear that the discretion reposed in the trial 
 court has been abused or erroneously exer- 
 cised: Laverenz v. Chicago, R. I. & P. R. 
 Co., 53-321. 
 
 499. Where it appears that the court be- 
 low, with a full knowledge of aU the circum- 
 stances transpiring at the trial, has ordered a 
 new trial, the supreme court will not inter- 
 fere therewith unless error in the action of 
 the court is made affirmatively to appear: 
 Finley v. David, 7-3. 
 
 500. The supreme court seldom interferes 
 with a ruling of the co^irt below in granting 
 a new trial, and would not be justified 
 in doing so except in a clear case : Lytton v. 
 Chicago, R. I. <& P. R. Co., 69-338. 
 
72 
 
 APPEAL, V, c. 
 
 New trial. 
 
 501. A stronger case should be made to 
 justify the interposition of the supreme court 
 when a new trial has been granted, than 
 where it lias been refused : Ruble v. McDon- 
 ald, 7-90; Newell V. Sandford, 10-396; Shep- 
 herd v. Brenton, 15-84; Burlington Gas Light 
 Co. V. Oreen, 31-335 ; Chapman v. Wilkinson, 
 23-541 ; White v. Poorman, 34-108 : Roberts 
 V. Jones, 30-535; Forney v. Ralls, 80-559; 
 Pickering v. Kirkpatrick, 33-163 ; Boardman 
 V. Chicago & N. W. R. Co., 33-391; Tegeler 
 V. Jones, 33-334 ; New York Piano Forte Co. 
 V. Mueller, 38-553 ; Howell v. Snyder, 89-610 ; 
 Conklin v. Dubuque, 54^571. 
 
 502. Where the trial court has set aside 
 the verdict and granted a new trial, the su- 
 preme court will not be inclined to set aside 
 the ruling on appeal: Robinson v. Bacon, 
 34r409. 
 
 503. Where a court grants a new trial on 
 the ground that the jury were confused and 
 misled by the instructions, the supreme court 
 will not interfere : Reeves v. Royal, 3 G. Gr., 
 451. 
 
 504. An order granting a motion for a new 
 trial wiU not be disturbed on appeal when 
 the grounds alleged are fairly supported and 
 there is nothing to show abuse of discretion : 
 Sanders v. Clark, 38-375. 
 
 505. While it is true that a stronger show- 
 ing should be made to justify an interposition 
 of the supreme court when a new trial has 
 been granted than when refused, yet, where 
 the court in ordering a new trial misapplies 
 a legal pi-oposition, such ruling should be 
 reviewed where made upon motion for new 
 trial, the same as upon the ruling on any 
 other legal question, and in so doing the dis- 
 cretion of the trial court as to granting new 
 trials is not interfered with : Mehan v. Chi- 
 cago, R. I. & P. R. Co., 55-305. 
 
 506. No discretion is reposed in the court 
 in determining whether or not evidence 
 which is relied on to entitle the party to a 
 new trial on the ground of newly-discovered 
 evidence, is cumulative, and a ruling of the 
 court in granting a new trial upon the show- 
 ing as to such evidence will be reviewed as 
 readily as though the court had refused to 
 grant the new trial: Manson v. Ware, 63- 
 345. 
 
 507. If the verdict is contrary to instruc- 
 tions, and the lower court has granted a new 
 
 trial on that ground, its action will not be 
 disturbed on appeal, nor the instructions 
 given be reviewed. It is the duty of the 
 jury to regard the instructions as the law, 
 and find a verdict accordingly, whether they 
 be right or wrong : Caffrey v. Qroome, 10- 
 548; Savery v. Busick, 11-487; Jewett v. 
 Smart, 11-505 ; Taylor v. Cook, 14r-501 ; Por- 
 ter V. Thomson, 33-391. 
 
 508. Where, under the evidence, it is ap- 
 parent that the jury has disregarded an in- 
 struction of the court, the supreme court wiU 
 reverse the action of the lower court in fail- 
 ing to set aside the verdict and grant a new 
 trial on that ground : Nichols v. Chicago, R. 
 I. & P. R. Co., 69-154. 
 
 And further as to duty of jury to follow 
 the instructions, see Instructions, III, e. 
 
 509. Tlie action of tlie lower court in 
 setting aside a verdict will not, in general, 
 be interfered with on appeal on the ground 
 that it is not sustained by the evidence : Engs 
 V. Priest, 65-333. 
 
 510. Abuse of discretion must appear: 
 Where a new trial is granted by the lower 
 court on the ground that the verdict is not 
 sufficiently supported by the evidence, the 
 action of such court in determining such ques- 
 tion will not be disturbed on appeal unless 
 it appears that there has been an abuse of 
 discretion in such ruling: Hill v. Denslinger, 
 61-340 ; Stewart v. Dunlap, 61-348 ; Conklin 
 V. Dubuque, 54^571; Pickering v. Kirkpat- 
 rick, 33-163 ; Able v. Frazier, 43-175; McNair 
 V. McComber, 15-368. 
 
 511. And where the verdict has been set 
 aside by the court below as not supported by 
 the evidence, and a new trial granted, it wOl 
 require a stronger showing to warrant the 
 interference of the appellate court than when 
 a new trial asked on similar grounds has 
 been refused: Jenkins v. Chicago & N, W. 
 R. Co., 33-97. 
 
 512. Action of the court in sustaining a 
 motion for new trial on the ground of sur- 
 prise will not be reversed unless the supreme 
 court is well satisfied that such discretion 
 has been abused : Schumaker v. Gelpcke, 11-84. 
 
 513. Conclusive preponderance of evi- 
 dence : To authorize the reversal of the de- 
 cision of the court below setting aside a ver- 
 dict on account of insufficiency of evidence, 
 there should appear such conclusive pre- 
 
APPEAL, V, c, d. 
 
 T3 
 
 New trial. — Verdict of jury. 
 
 ponderance of evidence in its support as 
 would show that injustice would be done : 
 Wmihington v. Olden, 31-419; Burlington 
 Gas Light Co. v. Green, 31-335. 
 
 614. The case must be very cleai- to war- 
 rant the appellate court in interfering with 
 the action of the trial court in setting aside 
 a verdict as contrary to the evidence : Moran 
 V. Harris, 63-390. 
 
 515. Error and abuse of discretion must 
 be made to appear to justify a reversal of 
 such action of the lower court: Brett v. 
 Bassett, 63-340. 
 
 516. Excessive damages: The supreme 
 court will hesitate long before interfering 
 with the action of the trial court in setting 
 aside a verdict on the ground that the dam- 
 ages found by the jury are excessive and ap- 
 pear to have been given under the influence 
 of passion and prejudice : Wliite v. Beck, 64- 
 123. 
 
 517. Weight of evidence; manifest in- 
 justice : While there is no question as to the 
 right of the supreme court to set aside a ver- 
 dict and award a new trial when the verdict 
 is against the weight of evidence or the truth 
 of the case, yet, to justify such interference, 
 the mind should be brought irresistibly to 
 the conclusion that the verdict was not the 
 result of a free, sound and unbiased exercise 
 of judgment on the part of the jury, and 
 that manifest injustice would result if the 
 verdict should be permitted to stand : McKay 
 V. Thorington, 15-35. 
 
 518. Mistake as to legal proposition: 
 The discretion with which the court is 
 clothed as to granting a new trial is a legal 
 discretion, and its exercise must accord with 
 the rules of law. If a new trial is granted 
 upon insufficient cause, or for reasons in 
 conflict with the law, such action will be re- 
 garded as an abuse of the discretion of the 
 court, and will be reversed on appeal with 
 the same freedom as if made at any other 
 stage of the trial : Ruble v. McDonald, 7-90 ; 
 Shepherd v. Brenton, 15-84; Stockwell v. 
 Chicago, C. <& D. R. Co., 43-470. 
 
 519. Although it will require a stronger 
 case to warrant the supreme court in re- 
 versing the action of the court below where 
 a new trial has been granted than where it 
 has been refused, yet, if the evidence is 
 clearly and explicitly supported by the ver- 
 
 dict, the action of the lower court in grant- 
 ing a new trial may be reversed : Cedar Falls 
 & M. R. Co. V. Rich, 33-113. 
 
 520. Concurring verdicts: Where several 
 trials have resulted in the same verdict and 
 the trial court has I'efused to set the last one 
 aside as against the evidence, it would re- 
 quire a very strong case to justify an interfer- 
 ence by the appellate court : Burlington Gas 
 Light Co. v. Greene, 28-289; Russ v. Steam- 
 boat War Eagle, 14^363 ; Terpenning v. Gal- 
 lup, 8-74; Hollenbeekv. MarshalUown, 63-21. 
 
 521. Where concurring verdicts have been 
 rendered and the last one is allowed to stand 
 by the trial court, this fact will authorize the 
 presumption on the part of the supreme 
 court that another trial would result in the 
 same way : Pe7in v. McLaughlin, 36-538. 
 
 522. However, a second verdict concun-ing 
 with the previous one which has been set 
 aside as against the evidence, by no means 
 concludes the court fronr again granting a 
 new trial, and especially when the second 
 application is based upon a different ground 
 from that contained in the first : Jourdan v. 
 Reed, 1-135. 
 
 523. Where a verdict was setaside because 
 one juror had not concurred therein, and 
 upon a subsequent trial the same verdict was 
 rendered, held, that the fact that the result 
 had been concurred in by twenty-three jurors 
 would have much weight in sustaining the 
 action of the court below in refusing to grant 
 a new trial on the ground that the verdict 
 was contrary to the evidence : State v. Cross, 
 12-66. 
 
 d. Verdict of jury. 
 
 524. Not interfered vflth if supported by 
 evidence : The supreme court will not on ap- 
 peal disturbthe verdict of the jury as against 
 the evidence on a question of fact, if there 
 is any evidence to support it: Harger v. 
 Spofford, 46-11; Cole v. Coskery, 63-526; 
 Witter V. Little, 66-431. 
 
 525. To warrant a reversal on that ground 
 the verdict must be clearly against the 
 weight of evidence : Booth v. Small, 25-177 ; 
 Harper v. Madren, 31-407; Ayres v. Hart- 
 ford Ins. Co., 21-193. 
 
 52fi. To justify the interference of the su- 
 preme court with the verdict of the jury on 
 the ground that it is contrary to the evi- 
 
74 
 
 APPEAL, V, d. 
 
 Verdict of juiy. 
 
 dence, it must appear that it is clearls' and 
 manifestly unsustained by the evidence: 
 Starker v. Luse, 33-595. 
 
 527. The supreme court interferes veiy 
 reluctantly with the verdict of a jury, and 
 never unless it is clearly unsupported by the 
 evidence or has been otherwise improperly 
 reached : Miller v. Mutual Beiieflt L. Ins. Co., 
 39-804. 
 
 528. In particular cases, held, that the 
 verdict was not so lacking in support as to 
 warrant a reversal: Royal v. Smith, 40-615; 
 Smith V, Wagaman, 58-11 ; Manning v. Mere- 
 dith. 69-430. 
 
 529. Where the court instructed the jury 
 that to warrant a verdict on a particular issue 
 in behalf of one of the parties, the evidence 
 must be clear, satisfactory and conclusive in 
 his favor, and a verdict was rendered for 
 such party on such issue, held, that the su- 
 preme court would not on appeal set aside 
 such verdict on the ground that the evidence 
 was conilicting, if it appeared that the jury 
 might, without bias or prejudice, have con- 
 cluded that in their minds the evidence was 
 of such a character : Hoadley v. Hammond, 
 63-599. 
 
 530. Where the evidence is conflicting 
 the supi-eme court will not set aside the ver- 
 dict on the ground that it is not supported by 
 the evidence: Hall v. Hunter, 4 G. Gr., 539; 
 Pilmer v. Branch of State Bank, 19-113; 
 Jones V. Jones, 19-236; Eason v. Webster, 
 20-591 ; Reeves v. Reeves, 20-597 ; Ellwood v. 
 Wilson, 21-523; Law v. Illinois Cent. R. 
 Co., 82-534; Majcon v. Chicago, M. & St. P. 
 R. Co., 67-226. 
 
 531. Where there is a conflict in the evi- 
 dence and the verdict is not palpably against 
 the weight of evidence, the appellate court will 
 not interfere: Crabtreev. Messersmith, 19-179. 
 
 532. Where the determination of a ques- 
 tion upon the evidence involves the oi-edi- 
 bility of contradictory witnesses, it is a 
 matter peculiarly for the jury : Peck v. Hen- 
 dershott, 14-40. 
 
 533. The rule that the supreme court will 
 not on appeal interfere with the verdict of 
 the jury when there is a clear conflict in the 
 evidence, is applicable in criminal as well as 
 civil cases : State v. Falconer, 70 . 
 
 534. Honest and unbiased judgment of 
 jury: Where there is a conflict in the evi- 
 
 dence, the supreme court will not on appeal 
 interfere with the verdict of a jury unless it 
 is well satisfied of the insufficiency of the 
 evidence to convince the reason, conscience 
 and judgment of the triers: Todd v. Bran- 
 ner, 30-439. 
 
 535. Unless there is some foundation for 
 the conclusion that the findings of the jury 
 are not the result of honest, intelligent and 
 unbiased judgment on their part, the supreme 
 court will not disturb their verdict : Martin 
 v. Algona, 40-390. 
 
 53G. Preponderance not controlling: 
 Where there is a mere conflict in the evi- 
 dence, even though it strongly preponderates 
 against the verdict, and there is a conviction 
 in the minds of the supreme court that a 
 different result would more nearly accord 
 with justice, these facts are not sufficient to 
 justify it in directing a new trial: Oarretty 
 v. Brazell, 34^100. 
 
 537. Where the evidence is conflicting the 
 supreme court will not set aside the verdict 
 of a jury, although they might have been 
 better satisfied upon the evidence with a 
 different result: White v. Clark, 39-388; 
 Starker v. Luse, 88-595. 
 
 538. And this will be true even if the 
 supreme court is clearly of the opinion that 
 if it had been called to pass upon the evi- 
 dence it would have reached a different con- 
 clusion from that reached by the jury : Hyde 
 v. Lookabill, 66-453. 
 
 539. A strong preponderance of evidence 
 against the verdict, and a conviction that a 
 different result would more nearly accord 
 with justice, are not sufficient to justify the 
 supreme court in ordering a new trial, where 
 they are not satisfied from the absence of 
 evidence to support a verdict that it was not 
 the result of a free, honest, unbiased and 
 intelligent exercise of judgment and con- 
 science on the part of the jury, and that jus- 
 tice wiU fail if the verdict is not set aside : 
 Garretty v. Brazell, 34-100; Parker v. Du- 
 buque S. W. R. Co., 34^399; Myers i\ Dres- 
 den, 40-660 ; Allison v. Chicago & N. W. R. 
 Co., 43-374. 
 
 540. Question of negligence: If the con- 
 clusion of negligence can be, by the jury, 
 reasonably drawn from the circumstances, 
 such conclusion wiU not be interfered with on 
 appeal, although the opposite conclusion ap- 
 
APPEAL, V, d. 
 
 75 
 
 Verdict of jury. 
 
 pears to the court to be the more reasonable ; 
 but if the general result appears to be wrong, 
 and the jury, as appears from their special 
 findings, are unable to assign any certain or 
 tangible ground for their conclusion, the 
 court should interfere: Ford v. Central Iowa 
 R. Co., 69-627. 
 
 541. (Jnestion of fraud : It being the pe- 
 culiar province of the jury to determine 
 questions of fraud in fact, when alleged, the 
 supreme court will not, on appeal, interfere 
 with a judgment on the verdict in a case in- 
 volving fraud, where it does not appear that 
 the jurors could not, in the exercise of their 
 unbiased and intelligent discretion, have prop- 
 erly found as they did: Votawv. Diehl, 62-676. 
 
 542. Where the question is as to whether 
 a transaction was fraudulent, the supreme 
 court will not interfere with the verdict of 
 the jury, who had the opportunity to see the 
 witnesses and judge of their credibility, 
 unless the evidence is so against the verdict 
 as to raise a presumption of passion or preju- 
 dice on part of the jury : Enneking v. Scholte, 
 69-473. 
 
 543. Passion or prejudice must appear: 
 Where there is a conflict in the evidence the 
 supreme court will not set aside a verdict 
 unless it appears that it is the result of 
 passion or prejudice: Melhop v. Doan, 36- 
 630; Moore v. Moore, 39-461; First Nat. 
 Bank v. Charter Oak Ins. Co. , 40-572 ; Hall v. 
 Ballou, 58-585 ; French v. Reel, 70 ; Gib- 
 son V. Fischer, 68-29. 
 
 544. To authorize a reversal on the ground 
 that the verdict is against the evidence there 
 must be such failure of proof as to raise the 
 presumption that it was the result of passion 
 or prejudice and not of an intelligent and 
 honest exercise of discretion by the jury: 
 McCormicks v. Fuller, 56-43. 
 
 545. Verdict set aside: It is with reluc- 
 tance and caution that an appellate court 
 interferes with the verdicts of juries. Where 
 there is reasonable doubt, or a conflict of evi- 
 dence, the verdict will be upheld; but if 
 there is no such doubt or conflict, the duty 
 to set aside the verdict is plain ; and in the 
 case under consideration the verdict was set 
 aside: McAunioh v. Mississippi & M. R. Co., 
 20-838. 
 
 546. And in particular cases, held, that the 
 verdict was so clearly contrary to the evi- 
 
 dence that the judgment upon such verdict 
 should be reversed : Martin v. Orndorff, 20- 
 217; Lester V. Sallack, 31-477; Miller v. Mut- 
 ual Benefit Ins. Co., 34-222. 
 
 547. Where there is an entire want of evi- 
 dence to support or establish a fact essential 
 to the verdict, a judgment based upon such 
 verdict will be reversed on appeal : Carlin v. 
 Chicago. R. I. & P. R. Co., 37-316. 
 
 548. If the verdict is clearly unsupported 
 by the evidence and appears to have been 
 the result of pasision or prejudice, the su- 
 preme court will not hesitate to reverse on 
 that ground : Woodward v. Squires, 39-435. 
 
 549. The supreme court will reverse the 
 case where, under the law as given the jvtry 
 by the court, the verdict is contrary to the 
 undisputed evidence: Eckerd v. Chicago & 
 N. W. R. Co., 70 . 
 
 550. Excessive verdict; A judgment will 
 not be interfered with as excessive where it 
 is within the province of the jury to deter- 
 mine under all the circumstances the amount 
 that plaintifl! is entitled to recover, as for 
 instance where exemplary damages are al- 
 lowable : Dynes v. Robinson, 11-137. 
 
 551. It is the province of the supreme 
 court on appeal to set aside a verdict which 
 is excessive and remand the case for trial by 
 another jury. The court will, however, usu- 
 ally not make an absolute order remanding 
 the case for another trial in such cases, but 
 will allow plaintiff to elect whether he will 
 take another trial or accept a certain amount 
 which would not seem to the court to be open 
 to the objection of being excessive : Cooper 
 V. Mills County, 69-350. 
 
 And further as to remitting excess, see 
 m/TO,§'§ 956-972.' 
 
 552. Verdict contrary to instructions: 
 A verdict in conflict with the instructions 
 will be set aside on appeal without regard to 
 their correctness. The instructions are the 
 law of the case for the jury: Sullivan v. 
 Otis, 39-328; Morss v. Johnson, 38-430; Cobb 
 V. Illinois Cent. R. Co., 38-601; Farley v. 
 Budd, 14^289: Browne v. Hickie, 68-330. 
 
 And see further, on this point, Insteuc- 
 TIONS, III, e. 
 
 553. If instructions ax-e conflicting the 
 verdict will not be set aside if in harmony 
 with the correct instructions : Cobb v. Illinois 
 Cent. R. Co., 38-601. 
 
T6 
 
 APPEAL, V, e. 
 
 Finding of facts by court. 
 
 e. Finding of facts Iry court. 
 
 554. Presumption in favor of: Tlie-find- 
 ing of facts by the lower court in a trial 
 before it has the same presumption in its 
 favor in the supreme court upon appeal as 
 are entertained in favor of the verdict of a 
 jury: State v. Haskell, 30-876; Mallory v. 
 Luscombe, 31-369; Hambell v. O'Neal, 39- 
 562; Clark V. Reynolds, 46-674. 
 
 555. Where an action by ordinary pro- 
 ceedings is tried by the court without a jury, 
 the supreme court will not try the case anew 
 on appeal, and will not interfere on account 
 of the insufficiency of the evidence to sustain 
 the findings of the lower court, except where 
 the circumstances are such as would wan-ant 
 the setting aside of the vel-dict of a jury: 
 Dove V. Independent School Dist., 41-689. 
 
 556. In all actions or special proceedings 
 not triable de novo on appeal, the finding of 
 the lower court upon questions of fact stands 
 as the verdict of a jury and will not be dis- 
 turbed on appeal unless dearly unsupported 
 by the evidence: Hamilton v. Iowa City 
 Nat. Bank, 40-307; Sisters of Visitation v. 
 Glass, 45-154 ; Knox v. Hanlon, 48-252 ; Smith 
 V. Walker, 49-289; In re Will of Donnely, 
 68-126. 
 
 557. The findings of fact by the court 
 must be clearly and manifestly unsustained 
 by the evidence to justify the appellate court 
 in granting a new trial on this ground : Berry- 
 hill V. Jones, 35-335; Fonts v. Pierce, 64-71. 
 
 558. To authorize a reversal in such case 
 there must be such want of testimony in 
 support of the findings of the lower court as 
 to raise the presumption that the finding is 
 not the unprejudiced and honest exercise of 
 the discretion of the court : Vogel v. Wads- 
 worth, 48-28 ; Root v. Gay, 64-399 ; Woodman 
 V. Button, 57-443 ; Ross v. McQuiston, 45-145. 
 
 559. Practically there can be but two 
 modes of trial in the supreme court. One is 
 de novo, which obtains in equity cases, and 
 the other is the one which has uniformly 
 prevailed in actions at law, which is that, 
 unless satisfied that the verdict or finding of 
 the court is the result of passion or preju- 
 dice, the supreme court wUl not interfere: 
 Gibson V. Fischer, 68-29. 
 
 560. In passing upon the question whether 
 the finding of the court below is supported 
 
 by the evidence, the supreme court can only 
 inquire whether there was evidence upon, 
 which the court below, in the honest and 
 intelligent exercise of discretion, could have 
 rendered such a finding. The finding of the 
 lower court is in this respect regarded as the 
 verdict of the jury: Goldsmith v. Wilson, 
 68-685. 
 
 561. Conflicting' evidence: A finding of 
 facts by the lower court will not be disturbed 
 on account of insufliciency of the evidence 
 to support it, where the evidence is confiict- 
 ing: Harris v. Heackman, 62-411; In re 
 Railsback's Heirs, 54^459; Hallam v. Hay- 
 wood, 21-398 ; Mcintosh v. Livingston, 41- 
 219; Watkins v. Svnggett, 41-684; Perry v. 
 Cottingham, 68-41. 
 
 562. Every presumption is in favor of the 
 finding of the court below on the evidence, 
 and such a finding will not be disturbed on 
 appeal unless it clearly appears that it is not 
 sustained by the testimony : Brainard v. Van 
 Kuran, 22-261. 
 
 563. Unless it appears that a finding of 
 facts by the court below is so manifestly 
 against the evidence as to demand a reversal, 
 the supreme court will not interfere with 
 such finding, although if trying the case for 
 itself it might have reached a different con- 
 clusion: Williams V. Brown, 45-102; Starker 
 V. Luse, 33-595. 
 
 564. It is only when the finding of facts 
 by the lower court is clearly and manifestly 
 in conflict with the evidence that the appel- 
 late court is wan-anted in interfering there- 
 with: Ruble V. Atkins, 39-694. 
 
 565. The supreme court will not, in a law 
 case, reverse the judgment of the court 
 below based upon a finding of facts, if there 
 is any evidence upon which such finding can 
 be sustained : Leighton v. Orr, 44-679. 
 
 566. It is only where the finding evinces 
 passion or prejudice, and cannot be supported 
 under any reasonable view which may be 
 taken of the evidence, that it should be set 
 aside on appeal: Van Steenburg v. Milford 
 Water Power Improvement Co., 64-711. 
 
 567. The question before the court on ap- 
 peal, where there has been a finding of facts 
 in a law action, is not whether the finding is 
 sustained by the evidence, but whether there 
 was evidence tending to support such find- 
 ing : Altman v. Farrington, 45-630. 
 
APPEAL, V, f, g. 
 
 77 
 
 Findings by referee. — Judgment without finding of facts. 
 
 5C8. When the evidence submitted to the 
 court below leaves a question of fact in doubt, 
 the supreme court will not reverse the find- 
 ing : Weller v. Hawes, 19-443. 
 
 569. When the finding of the court below 
 is not sustained by the testimony a new trial 
 will be awarded : Keokuk County v. Alexan- 
 der, 31-377. 
 
 570. Finding not conclusive if judgment 
 thereon reversed: Where final judgment is 
 rendered in favor of a defendant, he cannot 
 appeal from a finding of facts which is 
 against him. But if defendant has properly 
 objected to the correctness of such finding, 
 it is not proper, in case of a reversal on 
 plaintiff's appeal, to render judgment against 
 defendant thereon without opportunity for a 
 new trial: Boyce v. Wabash R. Co., 63-70. 
 
 And see infra, g§ 917-930. 
 
 571. Conclusion of law: A finding by the 
 lower court, which is merely a conclusion of 
 law from the facts, there being no dispute or 
 controversy as to the facts themselves, is re- 
 viewable on appeal, and is not conclusive in 
 the same sense that a finding of. fact is: 
 Northwestern Coal Co. v. Bowman, 69-150. 
 
 The record: To warrant the review of 
 findings of fact by the lower court, the entire 
 evidence must be brought before the supreme 
 court on appeal, otherwise the finding of the 
 lower court wiU be conclusive: See supra, 
 §273. 
 
 f . Findings iy referee. 
 
 572. Presumption in favor of: The find- 
 ing of facts by a referee has the same force 
 as the verdict of a jury, and will not be dis- 
 turbed upon appeal unless clearly against the 
 evidence : Whicfier v. Steamboat Ewing, 31- 
 340. And see Reference, §§ 37-39. 
 
 573. Nor unless there is an absence of evi- 
 dence to oustain it: Brainard v. Simmons, 
 67-646. 
 
 574. It will not be set aside on a con- 
 flict in the testimony: Carson v. Cross, 14r- 
 463. 
 
 575. It will not be held as unsupported by 
 the testimony unless there is such absence of 
 proof as to authorize the conclusion that it 
 was not the result of honest, intelligent and 
 unprejudiced judgment: Taylor v. French 
 Lumbering Co., 47-663. 
 
 57(>. Where it was impossible from the evi- 
 
 dence to determine whether a referee's report 
 was correct or not, held, that it would be al- 
 lowed to stand : In re Heath's Estate, 58-36. 
 And see Repbeence, §g 30-38. 
 
 g. Judgmsnt without finding of facts. 
 
 577. Not reviewable on the facts: The 
 
 supreme court has no more power to review 
 the judgment of a court below upon a trial 
 by the court where there is no finding of 
 facts, than it has to review the verdict of a 
 jury : Warner v. Pace, 10-391. (But by stat- 
 ute a motion for new trial is no longer 
 necessary in either case to secure a review.) 
 
 578. Where an equity cause is not triable 
 de novo on appeal, the court will not inter- 
 fere with the judgment unless there be such 
 absence of testimony as to authorize the re- 
 versal of a judgment upon the verdict of a 
 jury: Mellinger v. Parsons, 51-58. 
 
 579. Where the cause is tried to the court 
 without a jury, a judgment of the court 
 stands as a general verdict of the jury, and 
 will not be interfered with unless palpably 
 against the weight of evidence: Woods v, 
 Oevecke, 38-561. 
 
 580. Where there is a conflict in the evi- 
 dence, the court will not set aside a judgment 
 because it is not supported by the testimony : 
 Boone Comity v. Wilson, 41-69. 
 
 581. To authorize the supreme court to re- 
 verse a judgment on the ground of want of 
 evidence for its support, there must be such 
 absence of proof as to warrant the conclusion 
 that the decision of the lower court was the 
 result of passion or prejudice: Murray v. 
 Wells, 57-36; Melendy v. Bice, 94 U. S., 796; 
 Patterson v. Seaton, 70 . 
 
 582. In the absence of a special finding of 
 facts by the court, it will be presumed that 
 the judgment is based upon facts which in 
 the proper exercise of judicial discretion the 
 court below could have foimd under the evi- 
 dence : Bower v. Webber, 69-386. 
 
 583. The supreme court may review the 
 findings of the court below in like manner 
 as it may re-examine the verdict of a jury, 
 but for that purpose the entire evidence must 
 be taken up. This takes the place of a mo- 
 tion to set aside the verdict of the jury for 
 the reason that it is not supported by the evi- 
 dence: Snellv. Kimmell, 8-381. 
 
78 
 
 APPEAL, YI, a, b. 
 
 Procedure. — Parties. — Time for appeal. 
 
 VI. Peoceduee. 
 
 a. Parties. 
 
 584. Must be party to the record: One 
 
 who has not had himself made a party to the 
 record cannot appeal from the judgment, 
 although having an interest therein : Borgalt- 
 hous V. Farmers', etc., Ins. Co., 36-250; Fer- 
 guson V. Board of Supervisors, 44-701. 
 
 585. If a person having an interest in the 
 result desires to question the action of the 
 court, he should apply to be made a party. 
 Until he is thus made a party, he is in no 
 way liable for costs, and therefore cannot be 
 allowed to interfere with the rights of the 
 original parties in the suit by appeal : State 
 ex rel. v. Jones, 11-11. 
 
 586. If such a person should apply to be 
 made a party and his application be refused, 
 such refusal might be investigated upon ap- 
 peal : Phillips V. Shelton, 6-545. 
 
 587. Where the complainant simply asks 
 to redeem, a senior incumbrancer may appeal 
 from an improper order in permitting the re- 
 demption, so that he does not get the full 
 amount due on his mortgage, although he 
 did not answer the bill : White v. Hampton, 
 13-359. 
 
 588. The parties for whose benefit suit is 
 brought or defended under Code, § 3549, are 
 not parties in such sense as to have the right 
 of appeal : Fleming v. Mershon, 36-413. 
 
 589. In an action against the unknown 
 owners of certain land, held, that thei'e could 
 be no appeal on behalf of the land, or the 
 owners thereof, unless some one appeared in 
 the action and made himself a party as the 
 owner: Fuller v. Unknown Oumer, etc., 9- 
 430. 
 
 590. A party who has not appealed can- 
 not insist upon other or different relief from 
 that awarded him in the court below : Alex- 
 ander V. Buffington, 66-360 ; Devoe v. Hall, 
 60-749. 
 
 591. A party not appealing can have no 
 relief: Huff v. Olmstead, 67-598; Lamh v. 
 Council Bluffs Ins. Co., 70 . 
 
 592. Parties who do not join in the appeal 
 cannot present questions affecting their claims 
 or interest not involved in tlie questions 
 arising upon the appeal as taken by appel- 
 lant. They can have no modification of the 
 decree : Butler v. Barkley, 67-491, 
 
 59.3. Co-parties: It is essential in an ap- 
 peal from the decree in a partition proceeding 
 taken by one defendant, that notice of appeal 
 be served upon his co-defendant, otherwise 
 the supreme court cannot review a ruling 
 which would necessarily affect the interest 
 of such co-defendant, and the appeal will be 
 dismissed : State v. Baldwin, 70 . 
 
 594. If co-parties, upon being served, elect 
 to join in the appeal, they are entitled to all 
 the benefits thereof, and may be allowed to 
 file an assignment of eiTors, and be heard : 
 Barlow v. Scott's Adm'rs, 13-63. 
 
 595. Where the supersedeas bond recited 
 expressly that one of two defendants alone 
 had appealed, and such defendant's name 
 alone appeared in the heading of the notice 
 of appeal, held, that he only could be con- 
 sidered as having appealed, although the 
 body of the notice spoke of the appeal being 
 by defendants : Webster v. Cedar Rapids & 
 St. P. R. Co., 37-315. 
 
 596. One defendant cannot upon appeal 
 complain of any error which results in injury 
 only to his co-defendant: Eyre v. Cook, 9-185. 
 
 597. Where a defendant appealing from a 
 judgment notifies his co-defendant as well as 
 the plaintiff of such appeal, and the co- 
 defendant does not refuse to join, it is pre- 
 sumed (under Code, § 3176) that such co- 
 defendant does join in the appeal, and appel- 
 lant may thereupon urge any objection as to 
 the judgment against his co-defendant which 
 ultimately affects his own liability: Engle- 
 ken V. Webber, 44-558. 
 
 598. A deceased party cannot appeal nor 
 can the right of his estate be adjudicated if 
 an appeal in form is taken : Tracy v. Roberts, 
 59-634. 
 
 b. Time for appeal. 
 
 599. Ill computing the six months within 
 which an appeal may be taken, the day on 
 which judgment was rendered wiU be ex- 
 cluded and the corresponding day at the end 
 of the time included : Carleton v. Byington, 
 16-588. 
 
 600. Therefore, held, that an appeal taken 
 September 30, from a judgment rendered 
 March 80, was in time : ParkhUl v. Brighton, 
 61-108. 
 
 601. The service of the notice within the 
 time specified is Bufficient. It is not neces- 
 
APPEAL, VI, b, o. 
 
 19 
 
 Time for appeal. — Perfecting appeal. 
 
 sary that it be filed with the clerk within 
 that time ; Baldwin v. Tuttle, 23-66. 
 
 G02. Securing the clerk's fees for a 
 transcript is not necessarily a part of the 
 perfecting of the appeal which must be com- 
 pleted within six months : Fairbum v. Gold- 
 smith, 56-347. But see infra, § 647. 
 
 603. An appeal from final judgment 
 taken within the proper time will raise ob- 
 jections to previous proceedings in the case 
 although more than the time prescribed for 
 taking the appeal has elapsed since such pre- 
 vious proceedings : Holladay v. Johnson, 13- 
 563. 
 
 604. Where judgment relates back: 
 Where judgment is entered in vacation as of 
 the preceding term, by agreement, the period 
 for taking appeal will commence to run 
 from the time the decision is, in fact, made, 
 and not from the time to which by agree- 
 ment it relates back : Carter v. Sherman, 
 63-689. 
 
 605. Where the judgment appealed from 
 bore date more than the prescribed length of 
 time before the taking of the appeal, but It 
 appeared that the cause was held under 
 advisement and decided in vacation and 
 within the prescribed time, without any 
 agreement that judgment should be entered 
 as of the last day of the preceding term, 
 held, that the appeal was not barred : Ken- 
 dall V. Luaas County, 36-395. 
 
 608. Where a decree, in an action seeking 
 to have set aside a deed of real property, and 
 for a reconveyance thereof, and also for an 
 accounting of rents and profits and improve- 
 ments, was rendered for reconveyance upon 
 payment by plaintiff of the sum paid, with 
 interest, and also the value of the im- 
 provements, less rents and profits, etc., and 
 the case was sent to a referee to take an 
 account, held, that an appeal from the decree 
 as to the reconveyance, etc., must be taken 
 within six months from the time such decree 
 was entered, and that the questions involved 
 therein could not be raised on an appeal 
 taken more than six months after that time, 
 but within the six months after a final de- 
 cree, based upon the referee's report, as to 
 the accounting. Such decree is to be deemed 
 final, although something further is required 
 to be done afterwards: McMurray v. Day 
 70 . 
 
 607. Ruling on motion for new trial: 
 
 An appeal taken within six months from the 
 decision of the court on a petition for a new 
 trial, but more than six months from the 
 rendition of the judgment upon the verdict, 
 does not bring up for review the action of 
 the court in rendering such judgment and 
 its proceedings prior thereto, the appeal 
 therefrom being barred: Cohol v. Allen, 
 37-449 ; Carpenter v. Broum, 50-451. 
 
 608. Where judgment is entered and after- 
 ward a motion for new trial is made and 
 overruled, an appeal from the judgment must 
 be taken within six months after the entry 
 thereof, and an appeal from the overruling 
 of the motion for a new trial will not raise 
 any question not involved in the ruling upon 
 such motion : Patterson v. Jack, 59-633. 
 
 609. An appeal in an equity case not taken 
 until more than six months after the ren- 
 dition of judgment, although within six 
 months from the time of the overruling of a 
 motion for a new trial, does not bring up for 
 consideration in the supreme court any of 
 the proceedings of the court prior to the fil- 
 ing of the motion, and therefore does not 
 enable the court to try the case de novo: 
 Bosch V. Bosch, 66-701. 
 
 c. Perfecting the appeal; notice; su- 
 pej'sedeas hond, etc. 
 
 610. Service of notice: To give the su- 
 preme court jurisdiction, the service of no- 
 tice upon appeal is as essential, where thei-e 
 is no voluntary appearance, as is the service 
 of original notice in suits commenced in the 
 lower court : McOlellan v. McClellan, 3-313 ; 
 Lewis V. Miller, 4 Gr. Gr., 95. 
 
 611. Service of notice of appeal upon the 
 adverse party and upon the clerk is neces- 
 sary to give the supreme court jurisdiction 
 of the cause, and the fact of such service 
 should be stated in the abstract: Phillips 
 V. Folletf, 69-39. 
 
 613. Appellant can have no relief on ap- 
 peal as against a judgment in favor of a 
 party not served with notice : Hunt v. Clark, 
 46-291. 
 
 613. Where the notice of appeal was di- 
 rected to J. M. W. instead of to John M. W., 
 and acceptance of service was made by the 
 attorney of the proper person, Jield, that the 
 
80 
 
 APPEAL, VI, c. 
 
 Perfecting appeal. 
 
 defect was immaterial : Horst v. Wagner, 43- 
 373. 
 
 614. The statute providing for service of 
 notice of appeal makes no provision for serv- 
 ice by leaving a copy with a member of the 
 party's family, as is authorized in case of 
 service of an original notice, and such a serv- 
 ice will not be valid : Draper v. Taylor, 47- 
 407. 
 
 615. Service of notice of appeal upon the 
 wife of attorney for appellee is not sufficient. 
 Such notice of appeal can be served only in 
 the manner presci-ibed by statute: Webster 
 V. Carson, 69-243. 
 
 616. Service of notice of appeal may be 
 made by taking a written acknowledgment 
 of service by the person upon whom it is 
 served : Sanxey v. Iowa City Glass Co., 68- 
 542. 
 
 617. Service of notice of appeal on the 
 deputy clerk, shown by an acceptance of 
 service signed by him with the name of the 
 clerk by himself as deputy, is sufficient 
 notice of appeal : Ibid. 
 
 618. Service of notice cannot be made by 
 a party to the action : Draper v. Taylor, 47- 
 407 ; Marion County v. Stanfield, 8-406. 
 
 619. Previous to the enactment of the pro- 
 visions of Code, § 3314, there was no method 
 authorized for service of notice of appeal by 
 publication: McClellan v. McClellan, 2-313. 
 
 620. Filing with clerk: It is not neces- 
 sai-y that the notice be filed in the office of 
 -the clerk within the time allowed for per- 
 fecting the appeal : Baldwin v. Tuttle, 23-66. 
 
 621. But, upon service of the notice, it 
 should be filed or deposited with the clerk, 
 and it thereupon becomes one of the original 
 papers in the case and a part of the record. 
 It is such a portion of the record as that it 
 may be corrected by proper proceedings in 
 the court in which it is filed, for instance, 
 for the purpose of making it show the cor- 
 rect date of^ervice upon the clerk : Brier v. 
 Chicago, B. & P. R. Co., 66-602. 
 
 622. New notice after delay in procuring 
 appeal: Where four years had intervened 
 between the taking of the appeal and the 
 filing of the transcript, held, that the case 
 would not be heard on motion of the appel- 
 lant without additional notice to appellee, 
 who had made no appearance : Byington v. 
 Robinson, 16-591. 
 
 623. Substituted defendant: Where plaint- 
 iff appealed from an order substituting a 
 third party in place of the sheriff against 
 whom the action was brought, held, that the 
 appeal might be prosecuted by plaintiff upon 
 the sheriff without notice being served upon 
 the substituted party, the substitution having 
 been made on the joint application of the 
 sheriff and such third party : Suriberg v. Bab- 
 cock, 61-601. 
 
 624. A notice of appeal from a judg- 
 ment brings up all the objections properly 
 saved on the trial of the cause, including the 
 motion for a new trial : Oulliher v. Chicago, 
 R. I. & P. R. Co., 59-416. 
 
 625. Appearance in the supreme court is 
 a waiver of any irregularity in taking the 
 appeal: Romaine v. Commissioners, Mor., 
 357. 
 
 626. Such appearance is a waiver of no- 
 tice: Morrow v. Carpenter, 1 G. Gr., 469. 
 
 627. Where there is no judgment ren- 
 dered in the court below from which an ap- 
 peal may be taken, consent of parties will not 
 give the supreme court jurisdiction: Long v. 
 Long, Mor., 381. 
 
 And further to the effect that consent will 
 not confer jurisdiction where the lower court 
 had no jurisdiction, see Jurisdiction. 
 
 628. Appearance in the supreme court by 
 filing additional abstract, etc., will not waive 
 objection on account of want of notice, if such 
 appearance is made prior to the expiration of 
 the time during which notice might be served : 
 Brier V. Chicago, B. & P. R. Co., 66-603. 
 
 629. Supersedeas bond: An appeal is 
 not perfected by the filing of a supersedeas 
 bond alone, but service of notice of appeal is 
 also necessary, and until such notice is served, 
 at least on the clerk, such officer should not 
 recall an execution or issue an order to stay 
 proceedings thereunder: Pratt v. Western 
 Stage Co., 26-341. 
 
 630. An instrument is not a bond unless 
 signed and sealed by the parties making it. 
 In this respect a bond differs from a recogni- 
 zance: Cuddelback v. Parks, 2 G. Gr., 148. 
 (By general statutory provisions, a private seal 
 is no longer necessary to the validity of any 
 instrument : Code, § 3112.) 
 
 631. Form: A bond, irregular in form, 
 held sufficient as a statutory appeal bond: 
 Field V. Schricher, 14^119. 
 
APPEAL, VI, c. 
 
 SI 
 
 Perfecting appeal. 
 
 633. In an appeal from the county court 
 to the district court, held, that the bond, al- 
 though not in strict conformity with the req- 
 uisites of the statute, contained covenants 
 sufficiently broad to charge the appellant and 
 his sureties with all the costs to accrue from 
 an unsuccessful prosecution of the appeal, and 
 that it was therefore sufficient as a statutory 
 bond: Whitehead v. Thorp, 23-435. 
 
 633. Under former statutes, held, that the 
 supreme court had no authority to allow 
 amendments to appeal bonds which were in- 
 valid because of a failure to obey the federal 
 stamp law: Hugus v. Strickler, 19-413. 
 
 As to amendment of bonds, see Bonds. 
 
 634. Ill what cases bond may be g'iren: 
 An order of discharge in a habeas corpus pro- 
 ceeding cannot be suspended by supersedeas 
 bond pending an appeal: State v. Kirkpat- 
 rick, 54^373. 
 
 635. Amount of bond: Where, in an 
 action to foreclose a mechanic's lien, a per- 
 sonal judgment for the amount claimed Is 
 rendered against defendant, and the lien is 
 declared established upon the property, and 
 the property is ordered sold upon special exe- 
 cution to satisfy the judgment, and it is 
 directed that a general execution issue for 
 any sum remaining unpaid after exhausting 
 said property, the penalty of the appeal bond 
 should be twice the amount of the judg- 
 ment rendered. The value of property on 
 which the judgment is especially declared a 
 lieu cannot be taken into account in fixing 
 the bond : Flynn v. Des Moines <& St. L. R. 
 Co., 63-531. 
 
 636. Effect of bond: Where no super- 
 sedeas bond is filed, the appeal does not 
 vacate or affect the judgment, and proceed- 
 ings thereon are not stayed: Phillips v. Ger- 
 man, 43-101. 
 
 637. A supersedeas bond is not essential in 
 perfecting the appeal ; it does not secure the 
 clerk's fees for transcript, so as to render un- 
 necessary the payment or securing of the 
 same in order to perfect the appeal : Loomis 
 v. McKeiizie, 57-77. 
 
 638. The giving of a supersedeas bond does 
 not supersede or render void a delivery bond 
 previously given to secure the release of 
 attached property: Williams v. Hobison, 
 31-498; State V. McGlothlin, 61-313. 
 
 639. A supersedeas bond given in an action 
 
 Vol. 1 — 6 
 
 by a party claiming a public office, and who 
 has been adjudged entitled thereto, does 
 not suspend his right to exercise such office 
 in pursuance of the judgment, and to receive 
 the salary incident thereto ; and therefore in 
 an action on such supersedeas bond the sure- 
 ties are not liable for salary accruing pend- 
 ing the suit : Jayne v. Drorhaugh, 63-711. 
 
 640. When an order has been determined 
 to have been cori-ectly made, it is then too 
 late for a party to claim relief because he 
 was not allowed to supersede it: Yetzer v. 
 Martin, 58-613. 
 
 641. Liability on the bond: Where, on 
 appeal, judgment as to one party appealing 
 was affirmed, but as to the co-party reversed, 
 held, that the party as to whom it was af- 
 firmed and his sureties were liable on their 
 appeal bond: Knight v. Waters, 15-430. 
 
 642. Sureties on a supersedeas bond are 
 not discharged by an entry in the supreme 
 court, by consent, of a judgment by the 
 terms of which extension of time of payment 
 and stay of execution are granted. Their re- 
 lation to the action is not such as gives them 
 control over it, and the party has a right to 
 do whatever the law authorizes in such 
 cases : Drake v. Smythe, 44-410. 
 
 643. Where the appeal is simply disrnissed, 
 allowing the judgment in the lower court to 
 remain in full force, such dismissal has the 
 effect of affirming the judgment of the court 
 below, and the parties to the supersedeas 
 bond become liable thereon : Coon v. McCor- 
 maok, 69-539. 
 
 644. Where the defense to an action on an 
 appeal bond was that the judgment appealed 
 from was fraudulently obtained by depriving 
 defendant of his day in court, held, that such 
 fact, if true, was no defense to the judgment 
 rendered in the supreme court upon trial de 
 novo, to which defendant appeared and in 
 which he was heard, it not being alleged that 
 such fraud prevented a f uU and fafr trial on 
 appeal: Knight v. Waters, 18-345. 
 
 645. The statutory provision that property 
 levied upon shall be released upon the filing 
 of a supersedeas bond, it seems, refers only 
 to personal property : Swift v. Conboy, 13^44. 
 
 646. The language of the statute (Code, 
 § 3186) relating to rents and damages which 
 are to be covered by the bond is a specification 
 only as to the conditions of the bond ; and if 
 
82 
 
 APPEAL, VI, d, e. 
 
 Effect upon pending proceedings. — Record; transcript. 
 
 such condition is not contained in the bond, 
 the party executing it cannot in an action 
 thereon be held Hable for rents or profits 
 accruing during the appeal : Gill v. Sullivan, 
 63-529. 
 
 647. Fee for transcript: The appeal is not 
 perfected until the fees for transcript are 
 paid or secured, and giving a supersedeas 
 bond cannot be regarded as "securing" such 
 fees ; and held, that after service of notice of 
 appeal and filing of su,persedeas bond, but 
 before paying or securing costs of transcript, 
 appellant had the right to abandon his ap- 
 peal, and that the trial court had authority 
 to entertain application by such party for a 
 new trial, and grant it : Loomis v. McKenzie, 
 57-77. 
 
 648. The time within which the appeal is 
 to be perfected by paying or securing the 
 fees for transcript is not fixed. Filing an 
 abstract and having the cause docketed is 
 evidence of good faith, and the cause will 
 not be dismissed for want of transcript. 
 Wliile one must be furnished, if insisted upon 
 by appellee, time will be given to do so, un- 
 less appellant or his counsel have had notice 
 that one would be required, and through 
 negligence have failed to furnish it : Fair- 
 bum V. Goldsmith, 56-347. 
 
 d. Effect of appeal upon pending pro- 
 ceedings. 
 
 649. Divests lower court of jurisdiction: 
 
 An appeal from a final decree in a chancery 
 case deprives the trial court of all further 
 jurisdiction in the case until it is remanded. 
 It cannot make an order retaxing the costs, or 
 amending the record: Levi v. Karrioh, 15- 
 444 ; McGlaughlin v. O'Rourhe, 13-459. 
 
 630. And this rule applies also in actions at 
 law, when the entii-e cause is brought to, and 
 pending in the supreme court on appeal: 
 Turner v.. First Nat. Bank, 30-191 ; Car- 
 michael v. Vandebur, 51-235. 
 
 651. Correction of record: The appeal 
 does not so divest the jurisdiction of the 
 lower court but that it may order a lost rec- 
 ord substituted, or correct its record by sup- 
 plying omissions, and do whatever else is 
 proper to be done to enable the supreme 
 court to review its alleged errors: Steiner v. 
 Steiner, 49-70; Becker v. Becker, 50-139; 
 
 State V. Dillard, 53-749; Mahaffyv. Mahaffy, 
 68-55 ; Maxon v. Chicago, M. & St. P. R. Co. 
 67-226 ; Buckwalter v. Craig, 34-315. 
 
 652. The court below may settle and sign 
 a bill of exceptions after appeal is taken, if 
 done within the time allowed for that pur- 
 pose : Tiffany v. Henderson, 57-490. 
 
 653. The lower court retains jurisdiction 
 after the taking of the appeal to perfect the 
 record by giving the certificate as to the evi- 
 dence introduced in an equitable case : Goff 
 V. Hawkeye Pump, etc., Co., 62-691. 
 
 654. After the taking of appeal, a motion 
 to amend the record cannot be entertained 
 by the lower court without notice to the op- 
 posite party : Eno v. Hunt, 8-436. 
 
 Further as to correction of record, see 
 infra, §§ 668-683. 
 
 As to proceedings in the lower court after 
 determination of appeal, see infra, VII, f. 
 
 e. Record; transcript. 
 
 As to what papers, etc., are deemed part 
 of the record by filing, and what must be 
 made part thereof by bill of exceptions, see 
 Exceptions, g§ 69-92. 
 
 655. Matters outside the record cannot 
 be considered: The record of the proceed- 
 ings in the lower court is the only basis for 
 action in the supreme court. Extrinsic evi- 
 dence cannot be considered : Bell v. Pierson, 
 Mor., 21. 
 
 656. The supreme court has no original 
 jurisdiction and cannot review or correct 
 judgments of the lower court upon motion 
 and afSdavits outside of the lower court 
 showing fraud in the procurement of the 
 judgment : Powell v. Spanlding, 8 G. Gr., 417. 
 
 657. Even in an equity case, the supreme 
 court cannot hear depositions taken after the 
 trial of the case in the court below and never 
 submitted to such court: Perkins v. Tester- 
 ment, 8 G. Gr., 207. 
 
 658. An amended return of service of no- 
 tice cannot be filed originally in the supreme 
 court : Pilkey v. Gleason, 1-85. 
 
 659. The record in the supreme court can- 
 not be changed or explained by aflSdavits 
 presented for that purpose, nor by the certifi- 
 cate of the clerk of the court below, except 
 so far as such certificate is as to the matters 
 appearing of record in his court: Musgrave 
 V. Brady, Mor., 456. 
 
APPEAL, VI, e. 
 
 83 
 
 Record; transcript. 
 
 eoO. Certificate of clerk: A certificate of 
 the clerk as^to what evidence was presented in 
 an action tried by ordinary proceedings will 
 not be regarded ; such evidence must be made 
 matter of record by being embodied in the 
 bill of exceptions signed by the judge : Jordan 
 V. Quick, 11-9 ; Garber v. Morrison, 5-476, 
 
 C61 . A paper cannot be made a part of the 
 record by mere certificate of the clerk : State 
 ex rel. v. Jones, 11-11 ; Harmon v. Chandler, 
 8-150. 
 
 6(52. The biU of exceptions filed in the 
 trial court, a transcript of which is sent to 
 the supreme court, cannot be contradicted 
 by the certificate of the clerk of the trial court. 
 So field where the bill of exceptions showed a 
 note sued on to be non-negotiable, while the 
 note filed by plaintiff's attorney after the 
 trial of the cause, and certified by the clerk 
 by copy to the supreme court, showed that 
 It was negotiable : Daniels v. Oower, 54-319. 
 
 663. The supreme court cannot notice mat- 
 ters certified by the clerk of the lower court 
 which do not appear of record in such court : 
 Keller v. Killion, 9-329. 
 
 664. It is not the duty of the clerk to 
 certify or set out the evidence offered, and 
 the supreme court cannot act upon his state- 
 ments as to what the evidence was. It must 
 be embodied in a bill of exceptions properly 
 certified by the judge: Potter v. Wooster, 
 10-384. 
 
 665. The certificate of the clerk that certain 
 instructions were given and were objected to 
 by appellant, held, not sufficient to raise the 
 question as to their insufficiency : Knight v. 
 Kelley, 10-104. 
 
 666. The certificate of the clerk as to what 
 appears of record in his court will not prevail 
 against the recital of the record itself as 
 transmitted by him : Holmes i: Budd, 11-186. 
 
 667. Certificate of judge is not competent 
 to contradict the recitals in a bill of excep- 
 tions: Pearson v. Maxfield, 47-135; Dedric 
 V. Hopson, 62-563; Conner v. Long, 63-395. 
 
 668. Correction of record: Upon sugges- 
 tion of diminution of the record, a party 
 may have the record in the lower court 
 corrected or amended by proper proceedings 
 therein, and present the record as thus 
 amended to the supreme court by supple- 
 mental abstract : Mahaffyv. Mahaffy, 63-55. 
 
 669. Mistake in the record as to date of 
 
 service of notice of appeal on the clerk may 
 be corrected upon motion in the court in' 
 which the notice is filed : Brier v. Chicago, 
 B. &P. R. Co., 66-602. 
 
 670. While evidence not offered or relied 
 upon in the com-t below cannot be considered 
 by the supreme court upon appeal, yet where 
 the record as filed is incomplete, it is com- 
 petent for the lower court, even after appeal, 
 tp order all the evidence submitted at the 
 trial to be certified : Campbell v. Long, 20-383. 
 
 671. Where it was made to appear to the 
 court by affidavit that the record was de- 
 fective, held, that the court might, in the ex- 
 ercise of a sound discretion, remand the case 
 for the purpose of ascertaining and embody- 
 ing in a proper bill of exceptions the evi- 
 dence upon which the former trial was had : 
 Tasker v. Marshall, 4^544. 
 
 672. The record before the court must be 
 taken as conclusive of the facts recited. If 
 erroneous in any respect, the error should 
 have been corrected by proper proceedings in 
 the court below: Stiles v. Botkin's Estate, 
 30-60. 
 
 673. The record on which the case is to be 
 tried on appeal must be made up in the court 
 below. The supreme court will not, on mo- 
 tion, amend such record, as by inserting a 
 finding of facts alleged to be lost : Dobbins 
 V. iMsch, 53-304. 
 
 674. Lost records of the court below can- 
 not be suppUed by affidavit in the supreme 
 court : Morris v. Steele, 62-338. 
 
 675. The substitution of a lost pleading in 
 the court below is to be made in that court 
 and not in the supreme court : Tomlinson v. 
 Punston, 1 Q. Gr., 544. 
 
 676. Correction of omissions or mis- 
 takes: Appeals are based upon the records 
 of the cause remaining in the court below. 
 The supreme court has no jurisdiction to cor- 
 rect mistakes or supply omissions in such 
 records : Bartle v. Des Moines, 37-635. 
 
 677. A motion made in the supreme court, 
 supported by affidavits, to strike out the bill 
 of exceptions as not correctly embodying the 
 evidence, cannot be considered: Hughes v. 
 Stanley, 45-632. 
 
 678. Any correction of the record must be 
 made in the court below. The transcript is 
 the authoritative record in the supreme court, 
 and, after being certified, it cannot be im- 
 
84 
 
 APPEAL, VT, e. 
 
 Record; transcript. 
 
 peached by a certificate of the clerk of the 
 court below, or by any extrinsic evidence: 
 Gardner v. Burlington, O. R. & N. B. Co., 
 68-588. 
 
 679. Supplying lost records: The written 
 evidence upon which an equity case is tried 
 becomes a part of the record, and if it is 
 lost, it is to be supplied by substitution. 
 Such loss after judgment, and pending ap- 
 peal, is not ground for a new trial : Loomis 
 V. McKenzie, 48-416. 
 
 680. Where, after the taking of an appeal, 
 the papers were lost without appellant's fault, 
 held, that the court below should, on motion, 
 have ordered substitution thereof : Steiner v. 
 Steiner, 49-70. 
 
 681. Where a party, while his appeal was 
 pending, filed in the court below a motion to 
 supply his lost notice of appeal, which was 
 done after the hearing of evidence with 
 reference thereto, held, that as the evidence 
 was conflicting, the order would not be dis- 
 turbed : State v. Dillard, 52-749. 
 
 682. Where an additional transcript of a 
 justice of the peace filed in the lower court 
 in a proceeding by writ of error from the 
 judgment of such justice of the peace was 
 not sent to the supreme court with the tran- 
 script, but appeared to be lost, held, that the 
 certificate of the judge and clerk were re- 
 ceivable to show that such amended tran- 
 script had been filed in the lower coui't: 
 Goffeen v. Hammond, 3 G. Gr., 241. 
 
 Further as to correction or substitution of 
 the record in lower court, see supra, §§ 651- 
 654. 
 
 683. iPartial record: If appellant presents 
 a partial record which is, however, sufficient 
 to cleai'ly show the ruling appealed from, 
 and it is manifest that the omitted parts 
 could not aid the opposite party, the record 
 will be sufiBcient to enable the court to pass 
 upon the questions thereby raised: Hall v. 
 Smith, 15-584. 
 
 684. A motion to strike evidence from 
 the abstract because not preserved by a bill 
 of exceptions, properly raises the question 
 whether there was a bUl of exceptions or 
 not: Mon'is v. Steele, 62-228. 
 
 685. On such a motion the record must 
 speak for itself and can neither be attacked 
 nor supported by affidavits : Ibid. ; Moriarty 
 V. Central Iowa B. Co., 64-696. 
 
 686. The fact that the evidence is not so 
 certified as to be properly a part of the record 
 may be raised by motion to strike it from the 
 record, but wUl not be a ground for affirming 
 the judgment, as the record, without the 
 evidence, may show error entitling appellant 
 to reversal: Bracket v. Belknap, 40-704. 
 
 687. The supreme court will not strike the 
 evidence from the abstract upon motion, 
 where it is in considerable doubt as to what 
 ought to be done, or where the proper ruling 
 would require a somewhat careful and ex- 
 tended investigation of the abstract ; it will 
 either overrule the motion or require it to be 
 submitted with the cause ; and where such a 
 motion is overruled, the court does not con- 
 sider itself precluded from determining upon 
 the submission whether the record is such 
 that the case can properly be considered upon 
 its merits, especially where appellee insists in 
 his argument that it cannot: Alexander v, 
 McGrew, 57-287. 
 
 688. Defects in record: An objection that 
 the record on appeal does not properly em- 
 body the evidence cannot be supported by 
 affidavit. If the objection does not appear 
 on the face of the i-ecord, it may be amended 
 upon suggestion of diminution, or if the rec- 
 ord in the court below requires change to 
 make it correspond with the facts, proper 
 steps should be taken to amend it there: 
 Hughes v. Stanley, 45-622. 
 
 689. That the entire record is not before 
 the supreme court is not sufficient either to 
 warrant the dismissal of the appeal or to 
 strike from the files what is there. The ex- 
 tent to which a loss of a portion of the record 
 wOl prejudice the parties wOl be considered 
 on the final determination of the cause: 
 Mayo V. Temple, 16-585. 
 
 690. If it should appear in a law case that 
 the evidence is not all before the supreme 
 court, it would not dismiss the appeal if there 
 were questions which might be determined 
 without all the evidence being before it: 
 Balm V. Nunn, 63-641. 
 
 691. If the record is in such condition that 
 the supreme court cannot determine from the 
 pleadings what the issues are, it may remand 
 the cause in order that the parties may have 
 an opportunity to replead : Lyon v. Tevis, 8-79. 
 
 692. Evidence mnst be of record below: 
 A biU of exceptions cannot be considered in 
 
APPEAL, VI. e. 
 
 8^ 
 
 Record; transcript. 
 
 the supreme court unless it is embodied In 
 the record certified from the court below: 
 Plainer v. Mofford, 1 G. Gr., 476. 
 
 693. But if no question is made the court 
 presumes the evidence presented in filing the 
 abstract was properly preserved. If that 
 fact is called in question by a denial, the 
 court will go to the transcript to determine 
 it: Wilson v. First Presbyterian Church, 
 60-113. 
 
 694. Even if it appears that the transcript 
 contains a paper not properly identified by 
 the bill of exceptions, this fact will not war- 
 rant the striking the whole bill of exceptions 
 from the record : Hardy v. Moore, 62-65. 
 
 695. Where no steps are taken to strike 
 from the files a portion of the record claimed 
 to have been erroneously certified, it cannot 
 be disregarded on final hearing : Edie i'. Ap- 
 plegate, 14-273. 
 
 696. Any paper not spread out in full in 
 the bill of exceptions must be referred to 
 thereunder by some unmistakable reference. 
 Depositions, reporter's notes, etc., need not 
 be copied therein in full but should be clearly 
 identified. "Where the only identification of 
 the evidence contained in the bill of excep- 
 tions was as follows : " here, let the clerk in- 
 sert all the evidence, rulings, exceptions and 
 objections," held, that what purported to be 
 the evidence in the case should be stricken 
 from the abstract and transcript on motion : 
 Hill V. Holloway, 53-678. 
 
 And see further. Exceptions, g§ 93-120. 
 
 697. Although the record purports to con- 
 tain all the evidence heard before a referee, 
 yet if it does not appear that the evidence 
 was preserved by a bill of exceptions, or a 
 certificate of the referee, or otherwise identi- 
 fied, the court cannot consider that it has the 
 evidence before it : Donovan v. Hayes, 62-36. 
 
 698. Where it is made to appear that the 
 bill of exceptions was not presented to the 
 attorney of the opposite party, as required 
 by rule of the lower court, such bill of ex- 
 ceptions should be stricken out on motion in 
 the supreme court: Christenson v. Central 
 lowaR. Co., 63-703. 
 
 699. To secure a review of a law action it 
 is not essential that the evidence and insti-uc- 
 tions should be certified by the judge. It is 
 suflicient that the evidence is pi-operly made 
 part of the record by bill of exceptions, and 
 
 the instructions are identified by the bill of 
 exceptions or in other proper manner : Wil- 
 son V. First Presbyterian Church, 60-113. 
 
 700. Parties may, by stipulation, agree as 
 to what the evidence was on which the case 
 was tried in the court below, for the purpose 
 of having a trial on appeal upon errors as- 
 signed, although the case is equitable : Hutch- 
 inson V. Wells, 67-430. 
 
 701. Insnlficient record: Where the evi- 
 dence and instnictions referred to in the bill 
 of exceptions, and by it made part of the 
 record, are not actually included in the 
 transcript, for the reason that they are not 
 found on file by the clerk, the supreme court 
 cannot pass upon errors in rulings upon the 
 evidence or instructions to the jury, it not 
 appearing that the abstract corrects such 
 defect: Bonney v. Cocke, 61-303. 
 
 As to whether instructions, motions, etc., 
 are properly parts of the record, without be- 
 ing embodied in the bill of exceptions, see 
 Exceptions, §§ 69-92. 
 
 702. Transcript of the record: While a 
 bill of exceptions in an action by ordinary 
 proceedings should be brought to the su- 
 preme court by copy, and not in its original 
 form, yet an error in this respect only works 
 a continuance to obtain a corrected transcript : 
 Femow v. Dubuque & S. W. R. Co., 82-528. 
 
 703. A bill of exceptions transmitted to 
 the supreme court with the record but not 
 embraced in it, nor certified to by the clerk 
 as being a part of the record, cannot be con- 
 sidered: State V. Leis, 11-416. 
 
 704. It will not be a ground for striking 
 the transcript from the files that it appears 
 that it was delivered to the attorney of the 
 party, where it is not shown that it was noj 
 afterward forwarded in the manner directed 
 by the statute : Dedric v. Hopson, 62-563. 
 
 705. In equity cases: On appeal in a case 
 tried by ordinary proceedings, a transcript 
 should be sent up, but if tried by equitable 
 proceedings upon written testimony, the dep- 
 ositions and papers are to be sent up in 
 their original form : Baldwin v. Tuttle, 33-66. 
 
 706. If the original evidence is not certi- 
 fied up in such cases, the same presumption 
 obtains in favor of the correctness of the 
 ruling below as in an action at law : State v. 
 Orwig, 27-528. 
 
 707. An objection that papers of record in 
 
86 
 
 APPEAL, VI, e. 
 
 Record; transcript. 
 
 the court below axe certified to the supreme 
 court by copy instead of in their original 
 form should be raised in time to permit the 
 other party to correct the error, if it be one, 
 by filing the original papers. Such an ob- 
 , jection not made before the final submission 
 of the case will not be regarded : McDonald 
 V. Farrell, 60-335. 
 
 708. Inspection of instruments: Where 
 the objection made in the court below to the 
 introduction of a contract in evidence was 
 that its appearance indicated that it had been 
 altered since its execution, and there was no 
 evidence tending in any manner to explain 
 such alteration, held, that the supreme court 
 could not pass upon the sufficiency of such 
 objection, where the appellant had not se- 
 cured the transmission to the supreme court 
 of the instrument to which the objection 
 was made : Wing v. Stewart, 68-13. 
 
 709. Certificate of clerk: It is to be pre- 
 sumed that the papers certified by the clerk 
 as a part of the record in the case were prop- 
 erly filed in such case, although the fact of 
 their authenticity and connection with the 
 transaction does not appear from the papers 
 themselves : Mays v. Deaver, 1-316. 
 
 710. The certificate of the clerk to which he 
 attaches loose and detached depositions in 
 their original form, stating that the transci-ipt 
 contains the original depositions in the case, 
 is not sufficient to enable the court to try the 
 case anew : Wetherell v. Goodrich, 33-583. 
 
 711. Evidence presented in the record in 
 an equity case, triable de novo, which is in 
 no way certified or identified as that upon 
 which the trial was had in the court below, 
 will be stricken out on motion : Bracket v. 
 Belknap, 41-593. 
 
 712. In an equitable action tried on vsrritten 
 evidence, it is not necessary that such written 
 evidence be embodied in and preserved by bill 
 of exception, but the certificate of the clerk 
 that it is all sent up is sufficient to enable the 
 supreme court to act upon it : Ticonie Bank 
 V. Harvey, 16-141. 
 
 7 13. A certificate of the clerk that the tran- 
 script contains all the evidence "appearing 
 on file " will not be sufficient : Davenport v. 
 Ells, 33-396; Grant v. Grant, 46-478. 
 
 71-t. The certificate of the clerk that the 
 record contains all the evidence offered in the 
 court below, in a case tried wholly upon dep- 
 
 ositions and papers on file, is sufficient to en- 
 able the supreme court to consider the case on 
 ai^peal; and the provisions of the amendment 
 to Code, g 3742, requiring a certificate of the 
 judge to be given at the trial term, has no ap- 
 plication in such a case : Cross v. Burlington 
 '&S. W. R. Co., 58-63. 
 
 715. Where the clerk certified as follows: 
 "The depositions accompanying this tran- 
 script, marked A, B, C, D, and E, are all of the 
 evidence in such case used on the trial 
 thereof," and the depositions were found thus 
 marked, held, that they were sufficiently 
 identified, in the absence of a suggestion or 
 showing of substitution: Chambers v. Ing- 
 ham, 25-233. 
 
 716. Reporter's notes: In order to make 
 the evidence as taien down by the short- 
 hand reporter a part of the record, it must 
 be transcribed by him, and filed in the court 
 below: Oaylord v. Taft, 53-756; Lowe v. 
 Lowe, 40-330. 
 
 717. The reporter's translation of his notes 
 does not become a part of the recoi-d unless 
 certified to by him as correct. A certificate 
 of the judge, that the notes referred to in a 
 bill of exceptions contain all the evidence, 
 will not be sufficient : Richards v. Lounes- 
 bury, 65-587. 
 
 718. Where the judge certifies to a short- 
 hand writer's transcript of the evidence, it 
 is thereby sufficiently made part of the rec- 
 ord, although the reporter was not appointed 
 by the court, but acted at the request of one 
 of the parties : Lutz v. Aylesworth, 66-629. 
 
 719. If there is a certificate of the judge 
 to the reporter's notes, to the effect that they 
 contain all the evidence introduced or offered 
 in the case, it will be presumed that the 
 statement is true, and that no evidence was 
 afterwards introduced, although the judg- 
 ment was not rendered until some time sub- 
 sequent to the making of such certificate: 
 Royer v. Foster, 63-331. 
 
 As to how reporter's notes are made part 
 of the record, see Exceptions, §g 77-85. 
 
 720. Failure to file transcript: The ob- 
 jection that appellant has not filed a tran- 
 script must be raised by motion and not after 
 submission upon the argument: Simplot v. 
 Dubuque, 49-630. 
 
 The failure to file a transcript is a ground 
 for afiBLrmance on motion : See infra, Vn, a. 
 
APPEAL, VI, f. 
 
 87 
 
 The abstract. 
 
 721. An agreed abstract renders a tran- 
 script unnecessary : Hampton v. Moorhead, 
 62-91. 
 
 f. The ahstraot. 
 
 722. Form: The fact that what is filed and 
 intended as an abstract is not so entitled or 
 designated will not prevent the court from 
 considering it if its nature is apparent : Noble 
 V. Des Moines & St. L. R. Co., 61-637. 
 
 723. Should contain what: Itisnotproper 
 to set out in the abstract the entire testimony 
 of witnesses, by question and answer, without 
 excluding matter that is immaterial : Vaughn 
 V. Smith, 58-553 ; Tootle v. Taylor, 64-629. 
 
 724. Nor should writs, services, and other 
 writings not material to the case, be set out: 
 Tootle V. Taylor, 64-639. 
 
 725. The abstract should show the fact of 
 service of notice of appeal upon the opposite 
 party and upon the clerk of the court, in or- 
 der to show that the court has acquired 
 jurisdiction of the case : Phillips v. Follett, 
 89-39. 
 
 726. Costs of improper abstract: Where 
 the evidence as contained in the abstract was 
 not abridged as required by the rules of the 
 court, held, that appellant, although success- 
 ful, should not be allowed the full cost of mak- 
 ing the same : Chandler v. Fremont County, 
 43-58 ; Macomher v. Peck, 39-351 ; Martin v. 
 Cole, 38-699 ; Yorh v. Clemens, 41-95. 
 
 727. Where the party makes unnecessary 
 costs in preparing the abstract by printing 
 questions and answers in full, remarks of 
 counsel, etc. , and other matters not properly 
 part of the record , such costs will not be taxed 
 up in his favor: Byerlee v. Mendel, 39-383; 
 D;ye v. Young, 55-483; PooZe v. Hintrager, 60- 
 180 : Donahue v. McCosh, 70 . 
 
 728. Costs of additional abstract: Where 
 the court were satisfied that an abstract was 
 not prepared in bad faith, or for the purpose 
 of throwing the burden of preparing an ad- 
 ditional abstract upon the opposite party, and 
 that it fairly presented the questions to be 
 determined, held, that the costs of an addi- 
 tional or amended abstract prepared by ap- 
 pellee should not be taxed to appellant: 
 Brown v. Byam, 59-53. 
 
 729. Transcript may be unnecessary; 
 reporter's notes: Where the abstract of ap- 
 pellant is satisfactory to the opposite party. 
 
 there is no necessity for the clerk's tran- 
 script, nor for the transcript of the reporter's 
 notes which have been properly filed in the 
 original form in the court below. The ap- 
 pellant may make out his abstract from 
 whatever source he sees fit: Hampton v. 
 Moorhead, 62-91. 
 
 730. K the abstract is not controverted by 
 appellee, the court will not look into the 
 transcript of the original evidence, nor wUl 
 it refuse to try the case simply because such 
 transcript is not filed: Austin v. Bremer 
 County, 44-155. 
 
 731. An agreed abstract; amendment: 
 If an agreed abstract is presented, the case 
 will be heard on that, and no amendment 
 presented by one of the parties wiU be con- 
 sidered : Holmes v. Lucas County, 53-311. 
 
 732. Wliat waived by agreed abstract: 
 The agreement of the parties that a cause 
 may be heard upon the abstract will not op- 
 erate to waive statutory requirements as to 
 appeal : Lewis v. Pearson, 50-702. 
 
 733. Stipulations waiving the transcript 
 and providing that the case should be tried 
 on an amended abstract of the parties, held 
 not to waive the objection that the abstract 
 did not appear to contain all the evidence, 
 and that the court could not, therefore, try 
 the case anew : Allen v. Hull, 56-767. 
 
 734. Case determined npon abstract: 
 The supreme court does not look beyond the 
 abstract where a case has been argued and 
 submitted with an apparent understanding 
 that such abstract contains aU that is mate- 
 rial to its determination : Montgomery County 
 V. American Emigrant Co., 47-91. 
 
 735. Unless there is a disagreement in the 
 abstracts, the supreme court does not exam- 
 ine the transcript, and the abstracts consti- 
 tute the record. Where a certificate of the 
 judge is necessary to entitle the party to ap- 
 peal, it should be set out in the abstract: 
 Barnes v. Independent Dist., 51-700. 
 
 736.- The supreme court wUl not, as a gen-, 
 eral rule, look into the transcript except for 
 the purpose of determining the coiTectness 
 of the abstract, where that is disputed in 
 the manner required by the rules of court, 
 and will not consider objections not ap- 
 pearing on the abstract. (But this rule was 
 not adhered to in this case, it being a crimi- 
 nal case) : State v. Smouse, 49-634. 
 
88 
 
 APPEAL, VI, f. 
 
 The abstract. 
 
 737. How correctness of abstract ques- 
 tioned : The correctness of the statements of 
 the abstract cannot be impeached by a mere 
 statement in argument : Van Winkle v. Iowa 
 Iron, etc.. Fence Co., 56-345; Banhin v. 
 Miller, 43-11. 
 
 738. Where the abstract, although failing 
 to show that a bill of exceptions was filed in 
 the court below, contains matter which it 
 could not properly contain unless made of 
 record, the court will regard the appellant 
 as claiming that it was made of recoi-d, and a 
 direct statement to that effect will not be 
 necessary. If the appellee desires to claim 
 that no bill of exceptions was filed he must 
 do BO in an additional abstract: Thompson 
 V. Silvers, 59-670. 
 
 739. Where the abstract filed by appellant 
 purports to be an abstract of all the evidence, 
 it will be assumed, in the absence of any 
 showing to the contrary, that the evidence 
 set out therein was properly made of record, 
 K the opposite party wishes to claim that the 
 evidence was not made of record, he should 
 file an additional abstract so stating, and the 
 statement of such additional abstract will be 
 assumed to be true if not denied : State v. 
 Tucker, 68-50. 
 
 740. Where appellant's abstract stated the 
 taking of an exception, which was not de- 
 nied in the amended abstract, held, that the 
 court would consider that the exception 
 properly appeared in the record: Palmer v. 
 Rogers, 70 . 
 
 741. An abstract cannot be impeached 
 or contradicted by a certificate of the clerk 
 of the court below: White v. Savery, 49- 
 197. 
 
 742. Nor can it be altered or changed by 
 affidavit or certificate of the judge : Pearson 
 V. Maxfleld, 47-135. 
 
 743. A so-called amended abstract, setting 
 out affidavits showing the judgment to be 
 different from that contained in the abstract, 
 wiU not be considered: Holmes v.. Lucas 
 County, 58-311. 
 
 744. Where an abstract purports to con- 
 tain a copy of a paper which is part of the 
 record, it is not necessary for it to state that 
 what it sets out is the whole paper, but it 
 will be presumed to be so unless the con- 
 trary is shown: Baird v. Chicago, R. I. & 
 P. R. Co., 61-359. 
 
 745. In the absence of a conflict of ab- 
 stracts the court treats the abstract as the 
 record in the case, and if it is not sufficiently 
 intelligible to show the rulings made, the 
 coui't acts upon the pi'esumption that there 
 is no error: Eldredge v. Bell. 64-135. 
 
 746. Motion to strilte evidence from 
 abstract: If the abstract sets forth evidence 
 not made of record, the appellee may, on 
 motion, have such evidence stricken there- 
 from : Mudge v. Agnew, 56-297. 
 
 747. If no question is made as to the filing 
 of the bin of exceptions, the court presumes 
 that the evidence has been properly pre- 
 served. If the appellee states in his abstract 
 that no proper bill of exceptions has been 
 filed, and moves to strike out the evidence on 
 that ground, the court does not take the 
 statement as true, but refers to the transcript 
 for a determination : Wilson v. First Presby- 
 terian Church, 60-112. 
 
 748. A statement in appellee's abstract 
 that no exceptions were taken as set out 
 in the appellant's abstract will be deemed 
 true if not denied or avoided by appellant, 
 Armstrong v. Nillen, 70 . 
 
 And see further, supra, §§ 684-687. 
 
 749. Court will not look; beyond abstract: 
 Where the evidence in a case was stricken 
 from the abstract and the transcript as not be- 
 ing properly embodied therein, and leave was 
 given to perfect the record, and a perfect 
 transcript was filed, but no new abstract, 
 held, that the court could only consider the 
 original abstract with the evidence stricken 
 therefrom : Weider v. Overton, 47-588. 
 
 750. Matter must be of record: The 
 court cannot take the abstractor's statement 
 of a fact where there is no claim that the 
 fact appears from the record : Diekerman v. 
 iMbiens, 70 ; Anderson v. LeaveHch, 70 — . 
 
 751. Abstract of all the evidence: The 
 court will not, against the objection of ap-; 
 pellee, review a finding of facts made by a 
 court, jury, or referee, unless the abstract 
 purports to contain all the evidence intro- 
 duced on the trial below : Andrews v. Kerr, 
 49-680 ; Price v. Burlington, C. R. & M. R. 
 Co., 42-16; Rice v. Plymouth County, 53- 
 635 ; Walker v. Plummer, 41-697. 
 
 752. Where a review of the findings of a 
 jury on the evidence is sought, the abstract 
 should contain the statement that it contains 
 
APPEAL, VI, f. 
 
 89 
 
 The abstract. 
 
 all the evidence : Kearney v. Ferguson, 50- 
 72 ; Andrews v. Kerr, 49-680. 
 
 753. It is not sufHcient that it appear that 
 all the evidence is in the bill of exceptions : 
 Biee v. Plymouth County, 53-635. 
 
 754. The fact that the abstract purports to 
 contain "the evidence" is not sufficient to 
 enable the court to presume that it has all 
 the evidence before it. Such expression is 
 not equivalent to "all the evidence:" Par- 
 sons V. Parsons, 66-754. 
 
 755. Where an abstract fails to state that 
 all the evidence is before the supreme court, 
 that court will not review the findings of the 
 court below on a question of fact : Van Riper 
 V. Baker, 44^450 ; Commercial Bank v. King, 
 47-64. 
 
 756. A statement in the abstract that it 
 contains all the evidence wiU not enable the 
 court to determine whether the judgment is 
 against the evidence, if it does not appear by- 
 agreement of parties or certificate of the 
 judge that all the evidence is in the record : 
 Wormley v. District T'p, 45-666. 
 
 75 7. Where the abstract does not purport 
 to be an abstract of all the evidence, an ob- 
 jection that the damages are excessive can- 
 not be considered: Brant v. Lyons, 60-172. 
 
 758. Where the abstract shows that it does 
 not contain all the evidence, the case will not 
 be reversed if there might have been evidence 
 supporting the judgment: Enix v. Miller, 
 54-551. 
 
 759. In a particular case, held, that the 
 abstract did not show error, nor show the 
 evidence upon which the allegation of error 
 in the decision of the court below was based, 
 and therefore that the judgment must be 
 affirmed: Holwigv. Bowler, 50-96. 
 
 In cases triable de novo : That the abstract 
 must state that it contains all the evidence in 
 order that an equity case may be triable de 
 novo, see infra, §§ 1046-1052. 
 
 760. Wliat sulficient to show that the ab- 
 stract contains all the evidence: The state- 
 ment in the abstract to show that all the evi- 
 dence is comprehended therein is sufficient, 
 if the opposite party and the court are fairly 
 apprised that the appellant claims that he 
 has presented an abstract of all the evidence, 
 and in such cases the court will presume that 
 he has, unless appellee sets out additional 
 evidence : Miller v. Wolf, 63-233. 
 
 761. In regard to the statement that the 
 abstract contains all the evidence it will not 
 be examined quite as critically as the certifi- 
 cate of the judge to the effect that the evi- 
 dence oflfei-ed as well as that introduced was 
 made of record : Ibid. 
 
 762. Where an abstract contains a state- 
 ment that it is an abstract of all the evidence, 
 it is assumed, not only that this statement is 
 true, but that the evidence was made of rec- 
 ord by due certification, unless it is made to 
 appear to the contrary ; but where the certifi- 
 cate relied upon is set out, and appears to be 
 insufficient, that presumption will not be 
 entertained: Alexander v. McQ-rew, 57-387. 
 
 7G3. Where the abstract stated that "the 
 foregoing evidence is by the court duly cer- 
 tified to be all the evidence offered by either 
 party on the trial of this cause," held, that it 
 would be presumed that the evidence had 
 properly been made of record by a biU of ex- 
 ceptions : Macleod v. Geyer, 53-615. 
 
 764. A recital in the abstract that it was 
 an abstract of all the evidence, and that 
 within a proper time a bill of exceptions was 
 filed embracing in the record the testimony- 
 set out, held sufficient to show that the evi- 
 dence was before the court on appeal : Deere 
 V. Needles, 65-101. 
 
 765. Where the abstract purported to con- 
 tain all the evidence, and recited that the 
 evidence was taken down in writing by order 
 of the court, and made a part of the record, 
 held, that there was suflScient to entitle ap- 
 pellant to a trial de novo; Stoddard v. Hard- 
 leich, 46-160. 
 
 766. Where depositions werereferred to ia 
 the certificate of the judge as being marked 
 by certain letters, and the abstract did not 
 identify the depositions ' and documents 
 printed therein as being referred to in the 
 certfficate, but it was alleged in an amended 
 abstract, filed by appellant, that all the evi- 
 dence offered, introduced or used in the trial 
 was set out in the criginal and amended ab- 
 stracts, which allegation was not denied, 
 held, that the court could presume that it 
 had all the evidence before it: Paine v. 
 Means, 65-547. 
 
 767. Where the abstract stated that a 
 party filed a garnishee's answer " as follows ; 
 omitting formal parts," no issue appearing to 
 have been joined thereon, and therefore no 
 
.90 
 
 APPEAL, VI, f. 
 
 The abstract. 
 
 evidence having been admissible, held, that 
 this statement was sufficient to show that all 
 the evidence on which the court acted in 
 ruling upon a motion for judgment on the 
 garnishee's answer appeared to be presented : 
 Van Winkle v. Iowa Iron, etc.. Fence Co., 
 56-345. 
 
 768. Where by the language of the ab- 
 stract the opposite party and the court are 
 fairly apprised that appellant claims that he 
 has presented all the evidence, it will . be as- 
 sumed that he has done so unless the appellee 
 sets out additional evidence in an amended 
 abstract: Miller v. Wolf, 63-333. 
 
 769. Where a certificate of the judge that 
 the record contains all the evidence is es- 
 sential on appeal, if the abstract sets out the 
 fact that the certificate was made on the date 
 thereof, it is not necessary that such certifi- 
 cate be set out in the abstract: Yant v. 
 Harvey, 55-431. 
 
 770. In a particular case, held, that ap- 
 pellant's abstract sufficiently purported to 
 oontain an abstract of all the evidence : Hig- 
 gins V. Mendenhall, 51-135. 
 
 771. Must purport to contain all the evi- 
 dence : An abstract which states that all the 
 evidence in the case was reported and certi- 
 fied to by the reporter of the court, and duly 
 certified by the court as being all the evi- 
 dence offered in said trial, will not be suf- 
 ficient to enable the court to try the case de 
 novo if it fails to state that it (the abstract) 
 contains all the evidence, that is, an abstract 
 of all the evidence upon which the case was 
 tried : Cassady v. Spofford, 57-337 ; Ward v. 
 Snook, 61-610; Hall v. Harris, 61-500; 
 Phenix Ins. Co. v. Findley, 59-591 ; Ohrt v. 
 Ober, 51-540; Conwell v. House, 57-754. 
 
 772. If a party wishes to make it appear 
 that his abstract is an abstract of all the evi- 
 dence, that fact should be specifically stated 
 in the abstract. It is not sufficient to set out 
 in the abstract the certificate of the judge, 
 or clerk, or reporter, showing that the evi- 
 dence is all made of record in the lower 
 court: Porter v. Stone, 62-443; Wisconsin 
 
 I. <fc N. R. Co. V. Secor, 70 ; Fidliam v. 
 
 Muscatine, 70 ; Woodrum v. Carraher, 
 
 69-145 ; Hasner v. Patterson, 70 . 
 
 773. While the abstract should purport to 
 contain all the evidence it is not usually nec- 
 essary nor desirable that it should, in fact. 
 
 contain all the evidence: Huff v. Farwell, 
 67-298. 
 
 774. "Substantially," not sufficient: An 
 
 abstract stating that " the testimony was 
 taken on written deposition, and was es- 
 sentially as follows, "is not sufficient to show 
 that the abstract contains all the evidence: 
 Britt V. Case, 58-757. 
 
 775. The language of the record may be 
 abbreviated in an abstract, but it is not 
 proper for counsel to determine what are the 
 facts established, or what is the effect of the 
 evidence, or to substitute what they may 
 consider as substantially the same : Blohm v. 
 Sweney, 66-604. 
 
 776. A statement in an abstract that it 
 contains " all the evidence bearing upon or 
 introduced to sustain the issues and findings 
 as to which plaintiff appealed," held, not 
 sufficient : Roe v. Wilmot, 51-689. 
 
 777. Setting out inslrnctious: Where an 
 abstract does not purport to set out the in- 
 structions, or any of them, in full, but simply 
 sets forth parts of sentences of various in- 
 structions claimed to be erroneous, the court 
 cannot pass upon their correctness : State Vj. 
 Nichols, 38-110. 
 
 778. Where the abstract does not contain 
 all the instructions given, alleged error in 
 refusing an instruction cannot be considered : 
 State V. Williamson, 68-351. 
 
 7 79. Abstract deemed true : The abstract 
 filed by appellant, in the absence of an ad- 
 ditional abstract, constitutes the i-ecord and 
 is regarded as a verity. It takes the place of 
 the transcript, and cannot be impeached or 
 contradicted in any other manner or to any 
 greater extent than the transcript could be: 
 White V. Savery, 49-197. 
 
 780. If appellant's abstract is not denied 
 by appellee, and shown to be untrue by an 
 amended abstract, it will be assumed to be 
 true: Ibid.; Kearney v. Ferguson, 50-73; 
 Hardy v. Moore, 63-65. 
 
 781. If appellee files an amended abstract, 
 which is not denied, it will be assumed to be 
 true: Kearney v. Ferguson, 50-73. 
 
 782. If appellee's amended abstract is de- 
 nied by another abstract filed by appellant, 
 then the court will look into the transcript 
 and determine its cha racter : White v. Savery, 
 49-197. 
 
 783. In the absence of an amended ab- 
 
APPEAL, VI, f. 
 
 91 
 
 The abstract. 
 
 stract denying the statements contained in 
 appellant's abstract, the latter is deemed to 
 be true, notwithstanding such a denial is 
 made in the argument of counsel: Farmer 
 •v.Sasseen, 63-110; Weaver v. Kintzley, 58- 
 191 ; Kendrick v. Eggleston, 56-128. 
 
 784. Where appellee discusses questions 
 raised upon the instructions without object- 
 ing or suggesting that they are not truly set 
 out in the abstract, his denial in the amended 
 abstract, that the instructions given and re- 
 fused are not properly set out, wiU not be 
 considered: Roberts v. Leon Loan, etc., Co., 
 63-76. 
 
 785. Where the abstract on its face appears 
 to be full and complete, the statement that it 
 ■contains all the evidence cannot be over- 
 come by a mere denial by appellee, so as to 
 require an examination of the abstract, but 
 he must set forth the omitted evidence : An- 
 drews V. Kerr, 49-680; Allen v. Bryson, 67- 
 591 ; Mielenz v. Quasdorf, 68-726. 
 
 788. The statement in appellant's abstract, 
 that it contains all the evidence, will be pre- 
 sumed true, unless appellee files an amended 
 a,bstract supplying the deficiency: AUer v. 
 Pennell, 51-537 ; Huff v. Farwell, 67-298. 
 
 787. The party filing an additional abstract 
 purporting to supply defects and omissions 
 in the original abstract, thereby admits that 
 the two abstracts together contain aU the 
 evidence given on the trial : Wells v. Burling- 
 ton, O. R. & N. R. Co., 56-520; Wilson v. 
 Palo Alto County, 65-18. 
 
 788. Thus, where appellant's abstract pur- 
 ported to contain all the evidence, and ap- 
 pellee filed an additional abstract denying 
 that fact, and denying that the evidence was 
 properly abstracted, Jield, that appellant's ab- 
 stract would be deemed correct, notwith- 
 standing the denial, the appellee's abstract 
 not showing wherein appellant's abstract was 
 insuflicient or incorrect : Cross v. Burlington 
 &S. W. R. Co., 58-62. 
 
 789. If an abstract states that it contains 
 aU the evidence, but an amended abstract is 
 filed by appellee giving additional evidence, 
 without claiming that, as thus corrected, the 
 abstract does not give all the evidence, it 
 will be presumed that the abstracts together 
 bring all the evidence before the court: 
 Cross V. Burlington <& S. W. R. Co., 51-683. 
 
 790. Even if appellant's abstract contains 
 
 no averment that aU the evidence is found 
 therein, if appellee files an amended abstract 
 setting out evidence alleged to have been 
 omitted from the original, without any state- 
 ment or claim that the two abstracts together 
 do not contain all the evidence, appellee can- 
 not afterwards urge that the evidence is not 
 all before the court : Van Sandt v. Cramer, 
 60-424; Starr v. Burlington, 45-87; Fergu- 
 son V. Davis County, 51-220; Cummings v, 
 Browne, 61-385 ; Balm v. Nunn, 63-641. 
 
 791. In such case, a claim by appellee that 
 the evidence is not all before the court will 
 not be considered, if not made until the argu- 
 ment : O'Brien v. Harrison, 59-686. 
 
 792. If appellant's abstract purports to 
 contain all the evidence, the 3,ppellee must 
 supply what he claims has been omitted: 
 McArthur v. Lindemian, 63-307. 
 
 793. Where.the abstract of appellant does 
 not purport to contain all the evidence, the 
 appellee may set forth in his amended abstract 
 other portions, coupled with the denial that 
 with these additions the abstracts contain 
 all the evidence, and will not be estopped 
 from relying upon such statement in denial : 
 Cartwright v. Copess, 60-195 ; Hall v. Harris, 
 61-500; Hoive v. Jones, 66-156; Hassett v. 
 Hassett, 66-804. 
 
 794. The appellee may, by an additional 
 abstract, undertake to supply deficiencies in 
 the appellee's abstract without thereby pre- 
 cluding himself from objecting that the evi- 
 dence is not properly certified: Alexander v. 
 McGrew, 57-287. 
 
 79.5. And if such objection is made it will 
 be deemed true, unless appellant shows by 
 an amended abstract that the evidence was 
 properly certified : Rdby v. Hall, 57-318. 
 
 796. Such statement, that the abstracts to- 
 gether do not present all the evidence, will be 
 deemed true, unless denied by appellant: 
 Love V. Donaldson, 63-631. 
 
 797. If an abstract is not denied by the 
 appellee in an amended abstract, the record set 
 out will be taken to be correct, as, for in- 
 stance, it will be assumed that a bill of ex- 
 ceptions was filed. But if such facts are 
 denied in an amended abstract, the denial 
 will be taken to be true, in the absence of a 
 transcript : Brainard v. Simmons, 58-464. 
 
 798. Unless an additional or amended ab- 
 stract be denied it will be regarded as pre- 
 
92 
 
 APPEAL, VI, f, g. 
 
 The abstract — Assignment of errors. 
 
 senting the record correctly, and will prevail 
 against the original abstract : Hart v. Jack- 
 son, 57-75; Ham v. Wisconsin, I. & N. R. 
 Co., 61-716; Lucas V. Jones, 44r-298; Daniels 
 V. Langdon, 53-741 ; Cole v. CosJcery, 63-526 ; 
 Maxwell V. La Brune, 68-689. 
 
 799. And this is true even though it seeks 
 to eliminate something from appellant's ab- 
 stract : Richardson v. Hoyt, 60-68 ; Burkhart 
 V. Ball, 59-639 ; Kearney v. Ferguson, 50-73. 
 
 800. Service and filing of amended ab- 
 stract : Where an amended abstract is served 
 thirty days before the cause is submitted, 
 it will not be stricken from the files be- 
 cause not served within the time requu'ed 
 by the rules, where no prejudice could have 
 resulted from the delay: Green v. Ronen, 
 63-89. 
 
 801. Where appellee's amended abstract 
 was served twenty days before the case was 
 submitted, and the motion to strike involved 
 nothing but the cost of printing, held, that 
 appellant sustained no prejudice from the 
 delay in service and the abstract could not 
 be stricken from the files : Davidson v. Car- 
 ter, £te-117. 
 
 802. Where an additional abstract, filed 
 after the filing of appellee's argument, was 
 filed three months before the cause was sub- 
 mitted, and appellee bad opportunity to ex- 
 amine it and correct any misstatements or 
 error contained in it, and filed an additional 
 argument based, in part, upon the record as 
 made by the additional abstract, held, that 
 such additional abstract might be considered : 
 Palo Alto County v. Harrison, 68-81. 
 
 803. The fact that an amended abstract is 
 filed without leave or notice is not ground 
 for striking it from the files : Frost v. Parker, 
 65-178. 
 
 804. An amendment to appellant's abstract, 
 rendered necessary by reason of a motion in 
 the court below after the record was made 
 up and the appeal taken, should not be 
 stricken from the files because not served 
 upon appellee: Peterson v. Adamson, 67- 
 739. 
 
 805. It is not unusual to. allow a party to 
 file an amended abstract when he discovers 
 his case is not fully presented in the orig- 
 inal abstract. This should be done, how- 
 ever, before the case is submitted and at such 
 a time as that the other party will not be 
 
 prejudiced thereby : Wells v. Burlington, C. 
 R. & N. R. Co., 56-520. 
 
 806. Where a motion was submitted with 
 the case asking the court to strike from the 
 files an amended abstract and argument of 
 the opposite party because not filed within 
 the time agreed upon between the parties, 
 held, that while the motion would be over- 
 ruled, no costs would be taxed to the unsuc- 
 cessful party for printing such abstract and 
 argument: Keegan v. Malone's Estate, 62- 
 208. 
 
 807. Appellant cannot, after the appellee 
 has argued his case, aniend his abstract with- 
 out leave of court and thiis substantially 
 change the record upon which the case is 
 submitted. If leave to amend is asked, it 
 may be granted upon such terms as seem 
 proper under the circumstances, but an 
 amendment filed without leave after the fil- 
 ing of appellee's argument will be stricken 
 out on motion: In re Caywood's Will, 56- 
 301. 
 
 S08. Appellant cannot file an additional 
 abstract with his argument in reply except 
 to controvert the correctness of appellee's ad- 
 ditional abstract: Johnson v. Chicago, R. I. 
 & P. R. Co., 51-25. 
 
 809. Under some circumstances, doubtless, 
 a submission may be set aside and the case 
 would then be open for proper changes in 
 the record, but an amended abstract filed 
 after the case is submitted, without the sub- 
 mission being set aside, will not be con- 
 sidered: Fletcher v. Terrell, 50-267; Rogers 
 V. Carman, 54^715. 
 
 810. An application by appellant to amend 
 his abstract after the case is submitted, which 
 application is not accompanied by a motion 
 to set aside the submission, cannot be al- 
 lowed: State V. Hamilton, Q'l-SQQ. 
 
 g. Assignment of errors. 
 
 811. Necessary in a law case: In a law 
 
 action an assignment of errors is absolutely 
 essential to the consideration of the case on 
 appeal, and it is immaterial that but one 
 point is reUed upon, and that this is apparent 
 from the record and argument: Bamhart 
 V. Farr, 55-866. 
 
 812. The court cannot consider objections 
 not made in the assignment of error ; Wood 
 V. Whitton, 66-295. 
 
APPEAL, VI, g. 
 
 93 
 
 Assignment of errors. 
 
 813. An objection not made in the assign- 
 ment, but first raised in the argument, will 
 not be considered : Roberts v. Cass, 27-225. 
 
 814. Not necessary in equity: In an equi- 
 table action triable de novo on appeal, an 
 assignment of errors is not necessary : Haale- 
 worth V. Zollars, 30-433; Sherwood v. Sher- 
 wood, 44-192. 
 
 815. Where judgment is entei'ed below on 
 the admissions and allegations of the plead- 
 ings in an equity case, the cause on appeal is 
 triable de novo on such allegations and ad- 
 missions, and an assignment of errors is not 
 necessary : Early v. Burt, 68-716. 
 
 816. On appenl from ruling on motion 
 or demurrer: When an appeal is taken in an 
 equity case from a ruling upon motion or de- 
 murrer, error must be assigned: Powers v, 
 O'Brien County, 54-501; Patterson v. Jack, 
 59-632. 
 
 817. Trial of equitable actions upon as- 
 signment of errors: Where an equity case is 
 not in proper form for trial de novo, it may 
 be heard like an action at lavr ob assignment 
 of errors property preserved by exceptions: 
 Schmeltz v. Sahmeltz, 52-512; Cross v. Bur- 
 lington & S. W. R. Co., 51-683; Jordan v. 
 Wimer, 45-65 ; Liitz v. Kelly 47-307 ; Lynch 
 V. Lynch, 88-336; Jones v. Clark, 37-586; 
 Mallory v. Jjuscombe, 31-269. 
 
 818. Record must show error assigned: 
 Where the record does not show that the rul- 
 ing complained of in the assignment of errors 
 was in fact made, such question cannot be 
 considered : Borland v. MoNally, 48-440. 
 
 819. What the assignment shonld show: 
 An assignment of errors should plainly state 
 the error complained of and not merely refer 
 to the parts of the record wherein the objec- 
 tion complained of is said to appear : Wood 
 V. Whitton, 66-395. 
 
 820. Assignments held insufficient: An 
 assignment "that the court erred in its ac- 
 tion in regard to the jury," held too indefi- 
 nite: Hannon v. Chandler, 3-150. 
 
 821. An assignment that there was error 
 in allowing the introduction of- evidence ob- 
 jected to by plaintiff, and that the court erred 
 in finding for defendant, held too indefinite : 
 Gai-rett v. Wells, 63-256. 
 
 822. An assignment that "the court erred 
 in overruling the defendant's exceptions to 
 the report of the referee and entering judg- 
 
 ment against defendant," held not sufficiently 
 specific: Hoefer v. Burlington, 59-381. 
 
 823. An assignment that " the court erred 
 in rendering judgment for appellee " is not 
 sufficiently specific : Tomblin v. Ball, 46-190. 
 
 824. The assignment that a verdict is con- 
 trary to the law as given by the court is too 
 general : Wood v. Hallowell, 68-377. 
 
 825. Assignments that " the court erred 
 in admitting improper and rejecting proper 
 testimony," and that "the court erred in 
 admitting certain evidence of the defendant 
 against plaintiff's objection," held not suffi- 
 ciently specific: Merchants' Union Barbed 
 Wire Co. v. Rice, 70 . 
 
 826. Assignments of error that the verdict 
 is contrary to law, and that the court erred in 
 admitting testimony on the trial, and that the 
 court eri'ed in excluding testimony on the 
 trial, and that the court erred in overruling 
 defendant's motion in arrest of judgment 
 and for a new trial, are not sufficiently spe- 
 cific: Ai'nistroyig V. Nillen, 70 . 
 
 827. Assignments held not sufficiently 
 specific in the following cases: Hawes v. 
 Twogood, 13-582; Wilson v. Hillhouge, 14- 
 199; Morris v. Chicago, B. & Q. R. Co., 45- 
 29; Osehner v. Schunk, 46-293; Bardwell v. 
 Clare, 47-297; McCormick v. Chicago, R. I. 
 & P. R. Co., 47-345; Nockles v. Eggspieler, 
 47-400 ; Moffatt v. Fisher, 47-473 ; Benton v. 
 Nichols, 47-698; Betts v. Glenwood, 52-124; 
 Black V. Boyd, 52-719; Brown v. Rose, 55- 
 734; Wilson v. Klokenteger, 56-764; Low v. 
 Fox, 56-221 ; Vanderberg v. Camp, 68-213. 
 
 828. Errors in instructions: Unless the 
 particular points claimed to be erroneous in 
 instructions are specifically designated, an 
 assignment of error thereon will not be re- 
 garded: Peck V. Hendershott, 14-40; Brew- 
 ington v. Patton, 1-121. 
 
 820. An assignment of error in giving 
 certain instructions, in refusing certain 
 others, and in modifying certain others, 
 specifying them in each case, held suffi- 
 ciently specific : Sherwood v. Snow, 46-481. 
 
 830. An assignment of errors in giving 
 instructions, designating them by number, as 
 "in instructing the jury that," stating in 
 substance a brief proposition of law, h^ld 
 sufficient: Kendig v. Overhulser, 58-195. 
 
 831. An assignment of errors stating that 
 " the court erred in giving on its own motion 
 
94 
 
 APPEAL, VI, g. 
 
 Assignment of errors. 
 
 each of the instructions numbered," setting 
 out the numbers of the instructions objected 
 to, is sufficiently specific : Clark v. Ralls, 50- 
 375. 
 
 832. The assignment that the court erred 
 in refusing to give certain instructions men- 
 tioned by number, and each one thereof, and 
 in giving others mentioned by number, and 
 in giving each thereof, is sufficiently specific : 
 Wood V. Whitton, 66-295; Hammer v. Chi- 
 cago, B. I. & P. B. Co., 70 . 
 
 833. Where several instructions present 
 but a single proposition, the assignment that 
 the court erred in refusing to give them and 
 each of them specifically, points out the 
 error objected to: Hathaway v. State Ins. 
 Co., 64-229. 
 
 834. An assignment based upon instruc- 
 tions generally, vsrithout pointing out specific 
 portions claimed to be erroneous, is not suf- 
 ficient : Peck V. Hendershott, 14-40. 
 
 835. Where the assignment indicates 
 clearly the instructions asked and refused, 
 and that the court erred in refusing them, 
 such assignment is sufficient without point- 
 ing out the particular objection relied upon: 
 Sahaefert v. Chicago, M. <& St. P. B. Co., 
 62-634. 
 
 836. Error in ruling on motion: Where 
 a motion is made upon a statutory ground, 
 and the overruling of the motion is assigned 
 as error, such assignment will be sufliciently 
 specific although the motion has specified 
 more than one thing as constituting the 
 irregularity complained of in the motion: 
 Thomas v. Hoffman, 63-135. 
 
 837. Assignment of error in the overruling 
 of a motion to dismiss, which motion was 
 based on a single ground, held sufficiently 
 specific: Nichols v. Wood, 66-335. 
 
 838. Error in ruling on motion for a 
 new trial: A general assignment of error in 
 overruling a motion for a new trial will not 
 bring before the court the question whether 
 the verdict finds sufficient support in the evi- 
 dence, where that is only one of several 
 grounds reUed upon in the motion : Leekins 
 V. Nordyke, etc., Co., 66-471. 
 
 839. A general assignment of error in 
 overruling motion for new trial, when such 
 motion was based on several different 
 grounds, is not sufficiently specific: Reilly v. 
 Bingland, i4r-422; Bichardsonv. McCormiok, 
 
 47-80; Stevens v. Brown, 60-403; Mdrsel v. 
 Bowman, 63-57; Terry v. Taylor, 64^35; 
 McCormick v. Chicago, B. I. & P. B. Co., 47- 
 345; Oschner v. Schunk, 46-293; Foley v. 
 Kirkland, 66-337; Hasner v. Patterson, 
 70 . 
 
 840. An assignment of errors in overruling 
 a motion for a new trial, where no specific 
 grounds of error are pointed out, is not suf- 
 ficient: Moi~ris V. Chicago, B. & Q. B. Co., 
 45-39. 
 
 841. Where the error assigned was that 
 the court erred in overruling the first, second 
 and third grounds of defendant's motion for 
 a new trial, and it appeared that the grounds 
 referred to, while stated in three different 
 ways, amounted to the same thing and em- 
 braced a single proposition, held, that the 
 assignment was sufficient : Kitterman v. Chi- 
 cago, M. & St. P. B. Co., 69-440. 
 
 842. Error in ruling on demurrers: An 
 assignment of error in the ruling of the 
 court sustaining the several demurrers of 
 different defendants, is not sufficiently spe- 
 cific : Bradley v. Johnson, 67-614. 
 
 843. Error in judgment: An assignment 
 that the court erred in rendering judgment 
 against the party who appeals could be valid 
 only where the court below had rendered its 
 decision in writing, statmg the facts found 
 and the conclusions of law thereon, or where 
 the case had been tried by the court and the 
 evidence was all brought up by a bill of ex- 
 ceptiops: Dean v. White, 5-266. 
 
 844. Service and filing of assignment of 
 errors: If the assignment of ei-rors is filed 
 at the time required, it cannot be stricken 
 from the files, although not served or filed 
 until appellee's argument is filed : Conner v. 
 Long, 63-295. 
 
 845. Appeal will be dismissed if assign- 
 ment of errors is not served in time. It 
 seems that, if properly served on the appel- 
 lee, he could not complain of the naere non- 
 filing of the same with the clerk : Independ- 
 ent Dist. V. Independent Dist., 48-306. 
 
 846. An assignment of errors presented by 
 appellant in connection with his reply to ap- 
 pellee's argument will not be considered: 
 Betts V. Olenwood, 52-124. 
 
 847. An assignment of errors not filed 
 within ten days before the first day of the 
 term and not until appellant's argument is 
 
APPEAL, VI, g, h. 
 
 9& 
 
 Assignment of errors. — Arguments. 
 
 filed cannot be considered: Russell v. John- 
 ston, 61-27^). 
 
 818. Objection for want of assignment 
 must be made prior to the final trial and 
 submission or it will be deemed waived, 
 although the court may, notwithstanding 
 such waiver, require an assignment : Andrews 
 V. Burdick, 63-714. 
 
 849. An amended assignment, filed more 
 than ten days before the term at which the 
 cause is submitted, and duly served, will be 
 considered: Kendig v. Overhulser, 58-195. 
 
 850. An amended assignment of errors 
 which is not in time for the term to which 
 the case was appealed, but was in time for a 
 subsequent term to which the case was con- 
 tinued and at which it was tried, held to be 
 filed in sufficient time: Brown v. Rose, 55- 
 734. 
 
 851. Assignment made at end of appel- 
 lant's argument, and not objected to by ap- 
 pellee until after the filing of his argument 
 and within two days of the submission of 
 the case, Tield sufficient : University of Des 
 Moines v. Livingston, 57-307. , 
 
 852. Assignments not argued: Assign- 
 ments of error which are not discussed or 
 insisted upon in argument will not be con- 
 sidered: Olise V. Freeborn, 39-110; Soward 
 V. Chicago & N. W. R. Co., 80-551; Snyder 
 V. Eldridge, 31-139; Hows v. Fostenson, SI- 
 BOO ; Abbott V. Board of Supervisors, 36-354 ; 
 Cook V. Sioux City & P. R. Co., 37-436; 
 Hale V. Gibbs, 48-380 ; Huiras v. Berkey, 51- 
 701; Belts v. Olenwood, 53-134; Hepmon v. 
 Dubuque, 53-713; Rice v. Plymouth County, 
 53-635 ; Smith v. Hiokenbottom, 57-733 ; Clark 
 V. Epworth, 61-750; Beeson v. Chicago, R. 
 I. & P. R. Co., 63-173; Wood v. Whitton, 
 66-395 ; Wood v. Hallowell, 68-377. 
 
 853. The supreme court will not consider 
 assignments of error not argued by counsel, 
 even though they are stated in his argument : 
 Manning v. Burlington, C. R. <& N. R. Co., 
 64-340 ; Patterson v. Seaton, 70 . 
 
 854. An objection which is merely referred 
 to in such way as might be sufficient as an 
 assignment of errors, but is not argued, will 
 not be considered : Goodnow v. Wells, 67-654. 
 
 855. Where the only argument made in 
 support of an error assigned is a mere re- 
 statement of the assignment, it will not be 
 considered. If counsel are unable or un- 
 
 willing to suggest cogent reasons in support 
 of an alleged error, the court will not assume- 
 that duty : Marker v. Dunn, 68-730. 
 
 856. Where no reasons are given in sup- 
 port of an assignment, it wiU not be con- 
 sidered by the court: Parsons v. Parsons, 
 66-754. 
 
 857. Errors assigned but not referred to 
 in the opening argument are deemed waived 
 and cannot be referred to for the first time 
 in appellant's reply: Renvnck v. Davenport 
 & N. W. R. Co., 49-664. 
 
 858. Where the assignments are referred 
 to, and the general theory of the case is 
 argued as inconsistent with the instructions 
 given, and calling for the . instructions re- 
 fused, which giving or refusing is assigned 
 as error, the assignment will not be deemed 
 waived, although the instructions are not 
 specifically discussed : Clark v. Ralls, 50-375. 
 
 h. Arguments. 
 
 859. Failure of appellant to file argu- 
 ment or brief will be considered an aban- 
 donment of the appeal : Mores v. Hanchett,. 
 54-747 ; Dinning v. Bement, 54-156 ; Clime v. 
 Phipps, 63-759 ; Lamp v. Sievers, 66-85. 
 
 860. In such case the decision of the lower 
 court will be affirmed: Devore v. Adams, 
 68-385. 
 
 861. Although in an equity case the open- 
 ing and closing on appeal may fall upon ap- 
 pellee, yet the failure of appellee to file an 
 opening argument wiU not warrant the ap- 
 pellant in failing to file any arg-ument what- 
 ever. If he does so, his appeal will be re- 
 garded as abandoned : Scott v. Neises, 61-63. 
 
 As to opening and closing in equity cases 
 triable de novo, see infra, g§ 1083, 1083. 
 
 862. The supreme court wiU never decide 
 questions which are not argued upon both 
 sides, except when there exists an absolute 
 necessity for their decision : McKern v. Albia, 
 69^47. 
 
 863. And the court will stop the con- 
 sideration of a case not argued by appellee, 
 upon reaching the conclusion that it ought 
 to be reversed on any one ground : Deeds v. 
 Chicago, R. I. & P. R. Co., 69-164; Gil- 
 feather V. Council Bluffs, 69-310. 
 
 864. Erroneous reasoning assigned as the 
 ground of objection to action of the lower 
 
96 
 
 APPEAL, VI, h; VII, a. 
 
 Arguments. — Hearing and determining. 
 
 court will hot prevent the court from con- 
 sidering a valid objection properly made in 
 the lovrer court : Oilman v. Donovan, 59-76. 
 
 865. Filing of argument: An argument 
 will not be stricken out on motion because not 
 filed in time : Bartle v. Des Moines, 37-635. 
 
 866. But if the court is asked to do so, it wiU 
 tax the costs to the party filing the argument 
 after the proper time, unless the failure to 
 file within the time prescribed by the rules 
 has been reasonably excused : Renwiclc v. 
 Bancroft, 59-116; Smith v. McFadden, 56- 
 482. 
 
 867. While not striking the argument from 
 the files because not filed in time, the court 
 will, in a proper case, inflict penalties, or 
 continue the case when asked to do so : Cox 
 V. Forrest City & S. R. Co., 66-289. 
 
 8G8. Especially will the argument not be 
 stricken from the files because not filed in 
 time, where the party moving to strike does 
 not desire to file any argument on his part : 
 Kellam v. McAlpine, 68-251. 
 
 869. Arguments filed with the clerk after 
 the case is submitted are, by order of the 
 court, not sent to the justices : Wells v. Bur- 
 lington, C. R. & N. R. Co., 56-520. 
 
 870. An argument improperly filed, as 
 where appellee has improperly filed the 
 opening argument, may be stricken from 
 the files, but will not entitle the opposite 
 party to jxidgment for costs: Devore v. 
 Adams, 68-385. 
 
 871. Service of argument: Where a cause 
 is submitted in a regular manner it will not 
 be remanded upon the mere statement of 
 opposing counsel in a petition for rehearing, 
 that the argument was not properly served: 
 Hall V. Harris, 61-500. 
 
 872. Where cases are argued together in 
 the supreme court, in an oral argument, the 
 court will look at the printed arguments in 
 the cases to determine what portion of the 
 oral argument was intended to be applicable 
 to each, and a point raised in the oral argu- 
 ment will not be considered in a case the 
 brief of which does not raise such point: 
 Iowa Homestead Co. v. Des Moines Nav. <fc 
 R. Co., 63-285. 
 
 873. Taxation of costs: Where an argu- 
 ment contained numerous misleading errors, 
 evidently due to want of time or negligence 
 in reading the proof, held, that the costs 
 
 thei-eof could not be taxed with the costs in 
 the case : Fair v. Brovm, 40-309. 
 
 874. References to abstract: It is im- 
 proper in a printed argument to refer to 
 matters contained in the abstract without 
 giving the page of the abstract where such 
 matters may be found: Herriott v. Kersey, 
 69-111. 
 
 875. Improper argument: It is improper 
 for an attorney in argument to make a state- 
 ment of facts outside of the record impeach- 
 ing the judicial conduct of the judge before 
 whom the case is tried : Paine v. Frost, 67- 
 282. 
 
 876. Impi'oper remarks by counsel in 
 printed argument adverted to and criticised: 
 Sax V. Drake, 69-760. 
 
 877. On motion of appellant, a portion of 
 appellee's argument was stricken out on ac- 
 count of its abusive character: Cassidy v, 
 Palo Alto County, 58-125. 
 
 VII. Hearing and deteemining of 
 
 THE APPEAL. 
 
 a. Dismissal or affirmance on motion. 
 
 878. For failure to file transcript or 
 abstract: In the absence of the certificate of 
 the clerk below, excusing the failure to file 
 a transcript on the ground that he has not 
 had sufficient time to prepare it, the appellee 
 may, by filing a certified transcript of the 
 judgment, have the judgment affirmed on 
 motion. The statutory provision to this 
 eflEect is not merely directory, but must be 
 complied with to entitle a party to be heard 
 in the supreme court, unless waived by agi'ee- 
 ment or act of the appellee : Turner v. Hine, 
 37-500. 
 
 879. The provision of the rules of the 
 court for affirmance on motion for failure of 
 the appellant to file a printed abstract does 
 not supersede the provision of the statute 
 authorizing an affirmance on motion for fail- 
 ure to file the transcript with the clerk, but 
 in the latter case appellee, to be entitled to 
 an affirmance, must file a certified copy of 
 the judgment as a basis of the court's action, 
 which is not required where the failure is 
 merely to file the printed abstract : Hunger 
 V. Patterson, 37-501. 
 
 880. Appellee can only have the appeal 
 dismissed or the judgment affirmed when. 
 
APPEAL, VII, a. 
 
 97 
 
 Dismissal or affirmance. 
 
 notice of appeal has been served the proper 
 length of time before the term ; but a show- 
 ing that the clerk was served in time will 
 be sufficient to authorize an affirmance on 
 motion for failure to file the transcript, with- 
 out a showing that the party also was served : 
 Pratt V. Western Stage Co., 36-241. 
 
 881. By subsequent statutory provision 
 to that above referred to, the appeal is not to 
 be dismissed or the judgment affirmed on 
 account of failure to docket or ffie tran- 
 script, if it appears that the appeal was 
 taken in good faith and not for delay, and an 
 affirmance, where bad faith does not appear, 
 will be set aside : Engleken v. Sohultz, 40-703. 
 
 882. If appellee, upon being served with 
 the abstract, or within a reasonable time 
 thereafter, does not indicate to appellant that 
 he desires a transcript, but insists thereon at 
 the term at which the cause is to be sub- 
 mitted by ffiing a motion to dismiss or 
 affirm, time will be given to procure a tran- 
 script, and if necessary a continuance for 
 that purpose will be granted: White v. 
 Savery, 49-197. 
 
 883. The court will not dismiss the appeal 
 on motion for failure to ffie a transcript, but 
 order the transcript to be filed and continue 
 the case until it can be done: Manson v. 
 Ware, 63-345 ; Aldrich v. Price, 57-151. 
 
 884. Failure to file a transcript can only 
 be taken advantage of by motion to dismiss 
 the appeal or affirm the judgment, and can- 
 not be urged on final hearing: Holmes v. 
 Hull, 48-177. 
 
 885. Setting aside aitirmance: A judg- 
 ment of affirmance may be set aside upon a 
 proper showing such as to authorize such 
 action : Scarf v. Patterson, 37-503. 
 
 886. If the motion to dismiss the appeal 
 is overruled by the court pro forma, in 
 order that it may be left for determination 
 on the final submission, such action will not 
 prevent its f uU consideration on the final de- 
 tei-mination of the cause: Green v. Ronen, 
 62-89. 
 
 887. Dismissed upon other grounds; 
 , when proper: Where it did not appear that 
 
 a general verdict had been found or that 
 judgment had been rendered, held, that the 
 appeal ought to be dismissed on motion: 
 Martin v. State F. Ins. Co., 58-609. 
 
 888. The existence of the judgment from 
 
 Vol. 1—7 
 
 which the appeal is taken is a jurisdictional 
 fact, and if the existence of such judgment 
 does not appear from the abstract, the appeal 
 will be dismissed : Warder v. Schwartz, 65- 
 170. 
 
 889. Affirmance or dismissal on motion wiU 
 not be granted on the ground that the case 
 is not triable de novo, and there is no assign- 
 ment of errors. Such an objection can only 
 be raised on final hearing : White v. Savery, 
 49-197. 
 
 890. An objection that the record, on ap- 
 peal, does not sustain the errors assigned, 
 can only be determined upon final heax-ing 
 and not on motion : Balm v. Nunn, 63-641. 
 
 891. Cause remanded for repleading: 
 When the record is in such condition that 
 the supreme court cannot determine from 
 the pleadings what issues are before it, the 
 cause may be remanded in order that the 
 parties may have an opportunity to replead : 
 Lyonv. Tevis, 8-79. 
 
 892. Dismissal of appeal by appellant: 
 A state may, as appellant, dismiss its appeal 
 from a ruling of the lower court when it 
 does not appear that such dismissal will prej- 
 udice the rights of the appellee: State v. 
 Moriarty, 20-595. 
 
 893. Where a suit for mandamus was 
 brought against the individuals composing 
 the board of canvassers of an election to re- 
 locate a county seat (who were the county 
 supervisors), and upon trial the mandamus 
 was awarded from which defendants ap- 
 pealed, h£ld, that the appeal could not be 
 dismissed in the supreme court upon motion 
 of a subsequently elected board of super- 
 visors, such board being merely the nominal 
 party : State v. Cavers, 22-343. 
 
 894. Where appellant is not entitled to 
 prosecute the appeal, as, for instance, after 
 payment of the amount of the judgment and 
 acceptance of the same by the appellant, the 
 appeal will be dismissed on motion: Inde- 
 pendent Dist. V. District T'p, 44-301. 
 
 895. It is possible that where an appeal is 
 prosecuted from an intermediate order affect- 
 ing the. merits, and the action is, in the 
 meantime, prosecuted to final judgment in 
 the court below, such fact might be brought 
 to the attention of the supreme court as a 
 ground for dismissal of the appeal : Stanley 
 V. Davenport, 54r463, 
 
98 
 
 APPEAL, VII, a, b. 
 
 Dismissal or affirmance. — Method in special proceedings. 
 
 896. Where appellant by motion and affi- 
 davit sought to show that pending the ap- 
 peal appellee (the plaintiff) had accepted a 
 sum of money in full settlement of the judg- 
 ment recovered below, and appellant there- 
 upon asked that the appellee should take 
 nothing further in the cause and be barred 
 from the further prosecution of the action, 
 and that appellant be discharged from 
 further liability, which motion was resisted 
 on the ground that a part of the judgment 
 had been assigned before settlement, and 
 that there was fraud in obtaining the settle- 
 ment, held, that the court could not grant 
 the motion and appellant must either dis- 
 miss or prosecute his appeal: Simonson v. 
 Chicago, B. I. & P. R. Co., 48-19. 
 
 897. To justify a dismissal of the appeal 
 upon a showing that appellant has no further 
 right to prosecute it, that fact should clearly 
 appear. Where there is no doubt as to the 
 facts, the appeal will not be dismissed : Lewis 
 V. Tilton, 63-100. 
 
 898. Where a party appealed from a de- 
 cree restraining his use of property for a cer- 
 tain purpose, and on motion it was made to 
 appear that he had lost his interest in the 
 property, ?ield, that the appeal would not be 
 further entertained for the purpose of deter- 
 mining the question of costs: Faucher v. 
 Grass, 60-505. 
 
 899. Where the party in whose name the 
 action is prosecuted appears on appeal by his 
 affidavit and otherwise not to be the real 
 party in interest and not to have authorized 
 the prosecution of the action, the appeal may 
 be dismissed. Such showing by the party in 
 whose name the appeal was prosecuted will 
 constitute a virtual abandonment of the ap- 
 peal : Gresham v. Chantry, 69-728. 
 
 900. Where a motion to dismiss an appeal, 
 because appellant is not entitled to prosecute 
 it, is based upon facts as to which the af- 
 fidavits filed by the respective parties are in 
 conflict, the appeal will not be dismissed: 
 Long V. Smith, 67-33. 
 
 901. Abatement by death : Where, pend- 
 ing an appeal in a divorce case, one of the 
 parties dies, the action abates, both as to the 
 claim for divorce and as to alimony: Bar- 
 ney V. Barney, 14r-189. 
 
 902. The fact that the death of a party 
 to the appeal is suggested to the supreme 
 
 court and made a matter of record does not 
 constitute a revival of the cause against the 
 heirs or representatives of such party : Ibid. 
 
 903. Afflrmauce without prejudice: It is 
 competent for the supreme court, in the de- 
 cision of a motion addressed to its discretion, 
 to order the affirmance of the judgment with- 
 out prejudice to the rights of the appellant 
 to a new trial in the court below : White v, 
 Poorman, 34-108. 
 
 904. Where a decree had been affirmed by 
 reason of the defective condition of the 
 record preventing a trial de novo, and after- 
 ward it was sought to have a re-investiga- 
 tion of the case upon a perfected record, 
 Jield, that the decree could not be reopened, 
 but that in view of the peculiar circurmstances 
 of the case, the court would order that such 
 decree should not conclude the rights of 
 either party in a new action : Van Orman v. 
 Spafford, 30-215. 
 
 905. Second motion : A motion to dismiss 
 an appeal is no bar to a motion for the same 
 purpose made upon a new and more perfect 
 record: Seacrest v. Newman, 19-323. 
 
 b. Method of trial of appeal in special 
 proceedings. 
 
 906. Correcting assessments: An appeal 
 in an action by special proceedings is to be 
 tried according to the method provided for 
 ordinary or for equitable proceedings accord- 
 ing to the nature of the action: Davis v. 
 Clinton, 55-549. 
 
 907. Probate of will: A proceeding for 
 the probate of a will being a special proceed- 
 ing cannot be tried in the supreme court de 
 novo, but must be reviewed on errors as- 
 signed in the record : Ross v. McQuiston, 45- 
 145; Sisters of Visitation v. Glass, 45-154; 
 In re Will of Donnely, 68-126. 
 
 908. An action to test the validity of a 
 will is not triable de novo on appeal : Kelsey 
 V. Kelsey, 57-383. 
 
 909. Summary proceedings: A trial de 
 novo can be had only in equitable proceed- 
 ings. In summary proceedings, as for in- 
 stance to cancel a judgment, the supreme 
 court only has jurisdiction for the correction 
 of errors at law : Brett v. Myers, 65-374. 
 
 910. A habeas corpus proceeding will be 
 heard on appeal on errors assigned as in an 
 ordinary proceeding: Drumb v. Keen, 47-435. 
 
APPEAL, VII, c. 
 
 99 
 
 Affirmance or reversal in general. 
 
 • 911. A proceeding to restore lost corners, 
 
 as provided by statute, being a special pi-o- 
 ceediug involving merely a legal right, will 
 be reviewed on appeal as an ordinary and 
 not as an equitable action : In re Harring- 
 ton, 54^33. 
 
 c. Affirmance or reversao in general/ 
 remanding; final judgment. 
 
 912. Want of jurisdiction of the subject- 
 matter in the court below may be raised for 
 the first time on appeal to the supreme court : 
 Walters v. Steamboat Mollie Dozier, 24-193. 
 
 913. And the want of jurisdiction of the 
 lower court may be taken notice of by the 
 supreme court, although not raised : Groves 
 V. Richmond, 53-570. 
 
 914. Where a change of venue was granted 
 to a court having no jurisdiction to try the 
 case, held, that the want of jurisdiction in the 
 trial court could be urged in the supreme 
 court, although not raised below, and the 
 judgment was reversed : Cerro Gordo County 
 V. Wright County, 59^85. 
 
 915. Under such circumstances the su- 
 preme court will not review the questions 
 arising on the trial in the court having no 
 jurisdiction : Bennett v. Carey, 57-331 ; Gil- 
 man V. Donovan, 59-76. 
 
 That in such case the cause will be re- 
 manded to the court improperly granting the 
 change of venue, see infra, §§ 978, 979. 
 
 916. Afflrniance where result is correct: 
 IWhere the judgment of the court below is 
 found to be correct, it will be affirmed 
 although the reasons given therefor are erro- 
 neous : Whiting v. Root, 53-392 ; Jamison v. 
 Perry, 38-14 
 
 917. Cannot be affirmed on anotlier 
 ground: Where a motion to set aside a ver- 
 dict and grant a new trial is overruled upon 
 all the grounds urged except one, and on ap- 
 peal the action of the court on this ground is 
 held to be erroneous, the case will be reversed 
 without inquiry as to whether the motion 
 should not have been sustained on other 
 grounds, the opposite party not having ap- 
 pealed with reference to the ruUng on such 
 grounds : Collins v. Brazill, 63-433. 
 
 918. Where a demurrer is erroneously sus- 
 tained upon one ground and overruled upon 
 another as to which it should have been sus- 
 
 tained, the action of the court will be reversed 
 on appeal in order that the appellant may be 
 enabled to take such action aa he might have 
 taken in the lower court if the demurrer had 
 been sustained on the proper ground: Dis- 
 trict Tp V. Independent Dist, 63-188. 
 
 No relief to party not appealing: See 
 supra, g§ 590-593. 
 
 919. Nor to party sncccssful below: A 
 party against whom no judgment has been 
 rendered cannot question the correctness of 
 the proceedings in the lower court, and if 
 the judgment is reversed, so far as it is in 
 his favor he should not be bound thereby, so 
 far as the proceedings are adverse to him, but 
 should be given an opportunity for a new 
 trial: Boyce v. Wabash R. Co., 63-70. 
 
 And see supra, § 336. 
 
 9U0. Where a judgment contains two ad- 
 judications, one in favor of a party and 
 one against him, and he appeals from the en- 
 tire judgment, it will be presumed that he 
 appeals from that portion adverse to him; 
 and especially is this true where the relief 
 sought by the appeal, if granted, would 
 render the judgment of the court below 
 nugatory. On such appeal, the judgment 
 will not be interfered with in behalf of the 
 party not appealing : Hintrager v. Hennessy, 
 46-600. 
 
 921. Entire reversal for error as to one 
 count: Where error is committed as to only 
 one of two counts upon which plaintiff re- 
 covers, but it does not appear clearly as to 
 the amount recovered on each count, the en- 
 tire judgment will be reversed : Siouai City 
 & P. R. Co. V. Walker, 49-373; Bond v. 
 Wabash, St. L. & P. R. Co., 67-712. 
 
 922. Where an ordinance provided for a 
 fine for maintaining a nuisance, and a person 
 was under such ordinance fined, and the 
 abatement of the nuisance ordered, and the 
 supreme court held that the ordinance, in so 
 far as it provided for a fine, was in excess of 
 authority and void, held, that it would not 
 sustain so much of the judgment as pro- 
 vided for the abatement of the nuisance, but 
 would reverse the whole judgment : Nevada 
 V. Hutchins, 59-506. 
 
 923. Afflrniance where several issues are 
 involved: The affix-mance of a general judg- 
 ment is an affirmance thereof with respect 
 to all the issues decided thereby, although 
 
100 
 
 APPEAL, VII, c. 
 
 Affirmance or reversal in general. 
 
 the opinion be based upon but one of such 
 issues : Finch v. HolHnger, 46-316. 
 
 024. Where a judgment is entire, it should 
 be affirmed or reversed as to all the parties 
 appealing: Oavender v. Smith's Heirs, 5-157, 
 195. 
 
 925. Case remanded as to cross-action: 
 A cause may be remanded for new trial as to 
 a cross-action, with an order that such trial 
 shall extend to that alone, and that the judg- 
 ment on plaintiff's original action remain un- 
 disturbed : MoAfferty v. Hale, 24^355. 
 
 92G. Opinion of court on points which 
 become immaterial : When a case is reversed 
 upon ei-rors in instructions and sent back for 
 a new trial, the court will not express its 
 opinion as to errors claimed to have been 
 made in the admission or rejection of evi- 
 dence which may not occur on a new trial : 
 Oould V. Chicago, B. & Q. R. Co., 66-590. 
 
 92 7. The provision requiring the court to 
 decide on each error assigned, construed : 
 BaTcer v. Kerr, 13-384. 
 
 92S. Effect of afiii-mance of rnling' on de- 
 murrer: Where a demurrer was submitted 
 without stipulation for either party to amend 
 or plead over, and the action of the court in 
 overruling the demurrer was excepted to, 
 and judgment for the other party entered, 
 held, that upon the affirmance of the ruling 
 on the demurrer the judgment was final, and 
 the unsuccessful paxty could not have the 
 cause remanded for the purpose of pleading 
 over : Qrivies v. Hamilton County, 37-290. 
 
 929. In such a case the court will not, 
 upon affirming the action of the court below, 
 grant leave to the appellant to withdraw his 
 demurrer and proceed to trial upon the 
 merits : Dunlaxi v. Cody, 31-260. 
 
 930. The action of the supreme court in 
 sustaining the decision of the court below 
 overruling a demurrer will be final as against 
 the unsuccessful party only where judgment 
 has been entered against him in the court be- 
 low for failure to plead or to proceed with 
 the case : Tyler v. Langworthy, 37-555. 
 
 931. Effect of reversal; uen trial: It is 
 only where the facts are settled by agree- 
 ment of the parties or by the finding of a 
 com-t or referee, or by a special verdict of the 
 jury, that upon reversal in the supreme court 
 in an action triable by ordinary proceedings, 
 the court may render fl:nal judgment for the 
 
 party unsuccessful in the lower court. In 
 other oases a new trial must be awarded: 
 Artz V. Chicago, R. I. & P. R. Co., 38-293; 
 Oray v. Regan, 37-688; Hanvood v. Case, 
 37-692. 
 
 933. Where the facts are not thus deter- 
 mined, and the cause is reversed and re- 
 manded to the lower court; judgment should 
 not there be rendered without a retrial: 
 Harwood v. Case, 37-692. 
 
 933. Where a judgment rendered below 
 upon a report of a referee was set aside, on 
 appeal, as in conflict with the law and evi- 
 dence, and the case was remanded, held, 
 that the lower court should have proceeded 
 in the same manner as though such report 
 had been set aside upon motion there made : 
 Gray v. Regan, 87-688. 
 
 934. Wlien final judgment will be entered 
 on reversal : The supreme court cannot render 
 final judgment where it reverses a cause on 
 the ground that a new trial should have been 
 granted below. It can only enter up such 
 judgment as the court below should have 
 rendered: Payne v. Chicago, R. I. & P. R, 
 Co., 47-605. 
 
 935. So held, in a case where a judgment 
 was reversed because not supported by the 
 evidence, and it also appeared that the evi- 
 dence was substantially the same on a former 
 trial in which judgment had likewise been' 
 reversed on the same ground : Ibid. 
 
 936. Upon a determination in the supreme 
 court that there was error in refusing to ad- 
 mit certain testimony offered in the court 
 below, the supreme court cannot proceed to 
 render judgment as though the testimony 
 had been admitted. The offered evidence 
 might not be sufficient proof of the fact 
 which it tended to establish, or might have 
 been overthrown by other evidence. The 
 issue must be again passed upon by the lower 
 court: Mendeil v. Chicago & N. W. R. Co., 
 20-9. 
 
 937. Where defendant has not had an op- 
 portunity to defend in the court below, for 
 example, in case of default upon service by 
 publication, the supreme court will not, in 
 case of reversal, enter final judgment, but 
 remand the case for the purpose of allowing 
 defense to be made ; Doolittle v. Shelton, 1 
 G. Gr., 373. 
 
 938. Where defendant in the court below, 
 
APPEAL, VII, o. 
 
 101 
 
 Affirmance or reversal in general. 
 
 upon his demurrer being overruled, stood 
 thereon and appealed, and the ruling was re- 
 versed, held, that he was not entitled to 
 judgment in the supreme court, btit that the 
 case must be remanded, and the plaintiff 
 would have leave to amend : Ware v. Thomp- 
 son, 29-65. 
 
 939. Where the court below made a iind- 
 xng of facts ijinfavorable to defendant, and to 
 which he excepted, and rendered judgment 
 for defendant upon another question, and 
 upon appeal by plaintiff the judgment was 
 reversed, held, that as the correctness of the 
 finding of facts could not be inquired into, 
 although defendant also appealed, for the 
 reason that there was no judgment against 
 him, the court would not enter up judgment 
 upon the finding of facts, but remand the 
 case to the district court to retry the issues of 
 law and fact: Boyce v. Wabash R. Co., 63-70. 
 
 940. The reversal on appeal of an order 
 directing the issuance of a writ of possession 
 on the ground that it is irregular merely, 
 and not because the adverse party is entitled 
 to possession, does not entitle such adverse 
 party, on motion, to an order for a writ of 
 restitution. If the writ of possession is yet 
 undetermined, the right thereto cannot be 
 decided upon a mere motion: Lombard v. 
 Atwater, 46-501. 
 
 941. Where the judgment upon, a special 
 verdict is reversed on an error below, the 
 supreme court may render such judgment 
 as should have been rendered below: Gil- 
 more V. Ferguson, 28-422. 
 
 942. Where a case is reversed on the 
 ground that upon a finding of facts made by 
 the court, the judgment is erroneous as a 
 matter of law, final judgment may be ren- 
 dered on such finding: Shaw v. Nachtivey, 
 43-653. 
 
 943. In such a case the supreme court 
 may remand the cause for final judgment in 
 the lower court, and judgment below should 
 be entered up without a retrial : Roberts v. 
 Corbin, 38-355; Drefahl v. Tiittle. 42-177. 
 
 944. Where a party has sued under a stat- 
 ute authorizing the recovery of treble dam- 
 ages, and tlie judgment in his favor is held 
 to be erroneous on appeal, the supreme court 
 cannot give him judgment for actual dam- 
 ages on a different cause of action : Bond v. 
 Wabash, St. L. & P. R. Co., 67-712. 
 
 945. Effect of reversal fpr conflict be- 
 tween verdict and instructions: Where a 
 judgment is reversed because the verdict is 
 inconsistent with the instructions of the court 
 and special findings thereunder, although 
 the correctness of the instructions will not 
 be considered, the supreme court will not 
 render a final judgment on the special find- 
 ings, and in accordance with the instructions, 
 but will remand the cause so that the cor- 
 rectness of the instructions may be deter- 
 mined by an appeal from the judgment of 
 the court on the special findings : Baird v. 
 Chicago, R. I. & P. R. Co., 55-121; S. C, 
 61-359. 
 
 946. Affirmance of judgment asmodified: 
 Where special findings were inconsistent 
 with the general verdict, in so far as the 
 latter included an allowance on one count 
 of the petition, held, that the court could 
 modify the judgment by striking therefrom 
 the amount allowed on that count and affirm 
 it as to the balance : Cobb v. Illinois Cent. R. 
 Co., 88-601. 
 
 947. Where final judgment should be 
 entered: Where the judgment will affect 
 the title to real estate, it should be entered in 
 the lower court, and the case will be re- 
 manded for that purpose: Hait v. Ensign, 
 61-734. 
 
 948. What is the final judgment : If final 
 judgment is rendered in the supreme court 
 on appeal, it is the judgment of that court 
 which constitutes the final adjudication of 
 the cause and not the judgment of the court 
 below : Griffin v. Seymour, 15-30. 
 
 949. Final judgment at subsequent term : 
 The supreme court having reversed a cause 
 and remanded it for a new trial will not, at 
 a subsequent term, on motion of appellant, 
 render judgment in his favor. In analogy to 
 the rule as to the lower courts, enti'ies or 
 orders made at a previous term will only be 
 changed to correct an evident mistake: 
 Roberts v. Corbin, 26-315, 339. 
 
 950. Cancellation or correction of judg- 
 ments: The supreme court has power, aside 
 from any statutoiy provision, to correct or 
 cancel judgments improvidently entered 
 through mistake or oversight: Drake v. 
 Smythe, 44r-410. 
 
 951. Effect of judgment in supreme 
 court: If appellee take a new "judgment 
 
102 
 
 APPEAL, VII, c. 
 
 Aflfirmance or i-eversal in general. 
 
 against appellant and sureties on his appeal 
 bond, the former judgment is merged thei'ein, 
 and its lien destroyed : Swift v. Conboy, 13- 
 444. 
 
 952. Before a statutory provision to the 
 contrary, held, that where appellee on motion 
 secured a judgment in the supreme court 
 against appellant instead of a simple affirm.- 
 ance of a judgment of the lower court, such 
 new judgment was subject to stay of execu- 
 tion in the same manner that the judgment 
 in the lower court would have been : Peoria 
 F. & M. Ins. Co. V. Dickerson, 39-98. 
 
 953. Judgment in supreme court on ap- 
 peal boud; damages: Where there is not a 
 money judgment in the court below against 
 appellant, the supreme court cannot render 
 such judgment on the appeal bond. Although 
 the appeal may be taken solely for delay, yet 
 it is only where the collection of money and 
 the judgment therefor has been superseded 
 by bond that the statute allows damages to 
 be awarded against the party taking the ap- 
 peal : Berryhill v. Keilmeyer, 33-20. 
 
 954. It is only where a judgment or order 
 for the payment of money is appealed from, or 
 where the damages can be accurately known 
 to the supreme com-t without an issue or trial, 
 that the court is authorized to award to 
 appellee damages against appellant for tak- 
 ing the appeal: Branscomb v. Gillian, 55- 
 335. 
 
 955. It appearing that appellant had been 
 at the expense of printing abstract and ar- 
 gument, presenting the question raised by 
 the appeal, held, that it was not proper to 
 award damages against appellant for having 
 taken the appeal : Ragan v. Day, 46-239. 
 
 956. Remitting excess, and final judg- 
 ment in supreme court for balance: On an 
 appeal in an action in which usury was 
 pleaded as a defense, held, that plaintiff 
 might remit the usury and take judgment in 
 the supreme court for the principal, and that 
 judgment might also be entered there for the 
 ten per cent, penalty for the use of the school 
 fund : Thompson v. Purnell, 10-205. 
 
 957. Where plaintiff, in an action to re- 
 cover damages for injury to stock on defend- 
 ant's railroad track, recovered double dam- 
 ages in the lower court, but on appeal it was 
 considered that the service of notice was not 
 sufficient to entitle him to double damages. 
 
 lield, that the case would be reversed unless 
 plaintifiE consented to a judgment for simple 
 damages and submitted to pay the costs of 
 appeal: Keyser v. Kansas City, St. J. & C. 
 B. R. Co., 56-440. 
 
 958. Where the supreme court reversed a 
 case for error in including certain items in 
 the judgment therein, and, on a petition for 
 rehearing, appellee offered to remit such por- 
 tion of the judgment as was lield erroneous 
 and asked for judgment for the balance, 
 held, that such offer would be accepted, even 
 on rehearing, and a judgment for the balance 
 was entered: Hyde v. Minneapolis Lumber 
 Co., 53-343. 
 
 959. Where the attention of the court is 
 called, upon a petition for rehearing, to the 
 fact that there is error in the allowance of 
 interest, and the opposite party offers to remit 
 the excess, the judgment will be reduced to 
 the proper amount without granting a re- 
 hearing, and the costs of the appeal will be 
 taxed to the appellee : Cere v. Council Bluffs 
 Ins. Co., 67-272. 
 
 9G0. Where the judgment is for too large 
 an amount by reason of an erroneous assess- 
 ment of interest, if the party recovering the 
 judgment remits the amount of the excess, 
 judgment may be affirmed with. such correc- 
 tion, and it is not necessary that it be re- 
 manded :' Brentner v. Chicago, M. & St. P. 
 R. Co., 68-530. 
 
 961. Eemitting in lower court: Where 
 an offer to remit the excess in the judgment 
 was made in the lower court, after service of 
 notice of appeal, and the appeal was never- 
 theless prosecuted, h^ld, that the successful 
 party might, upon remitting the excess, have 
 affu'mance of the judgment in the court be- 
 low with costs, but that if no such remission 
 was entered, then the judgment would be 
 reversed : Waggoner v. Turner, 69-137. 
 
 962. The successful party may, in the 
 lower court, remit the amount of the excess 
 or submit to a new trial : Kitterman v. Chi- 
 cago, M. & St. P. R. Co., 69-440. 
 
 963. Remittitur where verdict- is excess- 
 ive: Where the verdict is evidently excess- 
 ive by reason of an eiTor in assessing the 
 amount of recovery, the supreme court may 
 order the successful party to remit the 
 amount of excess or submit to a new trial: 
 Howe V. Sutherland, 39-484. 
 
APPEAL, VII, c. 
 
 103 
 
 AflBrmance or reversal in general. 
 
 904. In a particular case, held, that the 
 amount of damages allowed in an action for 
 personal injuries, although mental anguish 
 was a proper element to be considered, was 
 so excessive as to indicate passion or prej- 
 udice, and appellee was allowed the option 
 of accepting a less amount or submitting to 
 a reversal : McKinley v. Chicago <& N. W. 
 It. Co., 44-314 
 
 965. A verdict in an action against a rail- 
 way company for personal injuries being 
 deemed by the supreme court excessive un- 
 der the evidence in the case, and the result 
 of prejudice, they directed that appellee 
 might take judgment for a certain amount, 
 and that if he had not elected to do so, 
 within the time set, judgment should be re- 
 versed : Lombard v. Chicaqo, B. I. & P. B. 
 Co., 47-494. 
 
 966. Where judgment was entered below 
 for less than the amount of the verdict on 
 the ground that it was excessive, held, that 
 the cause should be reversed and remanded 
 with direction to the lower court to allow 
 plaintiff to accept such judgment or submit 
 to a new trial : Noel v. Dubuque, B. & M. B. 
 Co., 44-293. 
 
 967. A verdict will not be reduced in the 
 supreme court on the ground that it is ex- 
 cessive unless such relief has been asked in 
 the court below : Small v. Chicago, B. I. & 
 P. B. Co., 55-582; Dickey v. Harmon, 36-501. 
 
 968. Election to remit: While, if the ver- 
 dict is excessive, it may be set aside on ap- 
 peal and remanded, yet the court will not 
 usually make an absolute order of remand, 
 but allow the successful party to elect to 
 take a certain amount which the court con- 
 sider not excessive, or submit to a new 
 trial : Cooper v. Mills County, 69-350. 
 
 9G9. Costs in case of remittitur: Where a 
 judgment was modified in the ' supreme 
 court on account of excessive interest hav- 
 ing been included therein, but it did not ap- 
 pear that attention had been called to the 
 error in the court below, held, that costs of 
 appeal should be taxed to appellant: Bayliss 
 V. Hennessey, 54-11. 
 
 970. Where the mistake in the judgment 
 is such that it would probably have been cor- 
 rected, if a motion therefor had been made, 
 the costs will be taxed to appellant : Sanxey 
 V. Iowa City Glass Co., 68-543. 
 
 971. Where the judgment is excessive in 
 amount, and it does not appear that any 
 offer was made to remit the excess in the 
 court below, costs of the appeal will be taxed 
 to the appellee, although he may make the 
 remission in the supreme court and prevent 
 the case from being remanded: Payne v, 
 BUlingham, 10-360. 
 
 972. Where, before costs were made on ap- 
 peal, the successful party offered in writing 
 to remit all the judgment above a certain 
 amount, which offer was refused, and, upon 
 final hearing, the other party was allowed 
 to recover more than the amount offered, 
 held, that the costs of appeal were to be 
 taxed to him : Montelius v. Wood, 56-354. 
 
 973. Decision of the case binding' on 
 second appeal : A decision upon appeal in a 
 case constitutes the law of the case, and will 
 not on a subsequent appeal of the same case 
 be overruled or re-examined, however well 
 satisfied the court may be that it is erroneous : 
 Adams v. Burlington & M. B. B. Co., 55-94; 
 Barton v. Thompson, 56-571 ; Simplot v. Du- 
 buque, 56-639 ; Star Wagon Co. v. Swezy, 63- 
 520; Ellis v. State Ins. Co., 68-578; District 
 Vp V. Independent Dist., 69-88; Baridan 
 V. Central Iowa B. Co., 69-527; Drake v, 
 
 Chicago, B. I. & P. B. Co., 70 ; Dams v. 
 
 Curtis, 70 . 
 
 974. Where the court has once definitely- 
 passed upon the case on one appeal, it virill 
 not, on a second appeal, reconsider its rul- 
 ing thereon, unless there has been such 
 change of the issues or other circumstances 
 of the case as to raise a new question, touch- 
 ing the applicability of the former decision 
 to the case as thus made on the second 
 appeal. The only method for procuring a 
 reconsideration of the decision on the first ap- 
 peal is by rehearing : Minnesota Linseed Oil 
 Co. V. Montague, 65-67. 
 
 975. Appeal not considered after dis- 
 missal for delects: Where an appeal is 
 dismissed on the ground of defects in the 
 record, it is incompetent for appellant, with- 
 out obtaining a rehearing, to bring the case 
 again before the court upon the same appeal 
 on a corrected record: Green v, Bonen, 
 63-89. 
 
 976. Whei-e an appeal is dismissed for the 
 reason that appellant has not moved in the 
 lower court to have the error complained of 
 
104 
 
 APPEAL, VII, c. 
 
 Affirmance or reversal in general. 
 
 corrected, before appealing, a dismissal of 
 the appeal and affirmance of the judgment 
 will not prevent him, if not too late, from 
 making the motion in the court below and 
 again appealing from the refusal of the court 
 to sustain it : BerryTdll v. Jacobs, 20-246. 
 
 977. Where a judgment procured by ap- 
 pellee for failure of appellant to file a tran- 
 script was set aside on the ground that ap- 
 pellant had previously dismissed the appeal, 
 held, that appellant could not afterwards 
 prosecute his appeal, the formal setting aside 
 of the judgment being a determination that 
 the court had no longer any jurisdiction of 
 the case: Seivey v. Pierce,, 69-31. 
 
 978. Toivhat court remanded; change of 
 Tenue : Where a change of venue is improp- 
 erly granted and the judgment of the court 
 to which the change is taken is reversed for 
 that error, the cause should be remanded to 
 that court from which the change of venue 
 was taken: Ferguson v. Davis County, 51-230 ; 
 Bennett v. Carey, 57-221 ; Gilman v. Dono- 
 van, 59-76 ; Cerro Gordo County v. Wright 
 County, 59-485. 
 
 979. Such an order was made without dis- 
 cussion in McCracken v. Webb, 36-551. 
 
 980. A procedendo is not necessary to au- 
 thorize the court below to redocket and pro- 
 ceed with the case in a proper manner. 
 That may be done on proper notice to the ad- 
 verse party, at any time after the time for 
 rehearing has expired: State v. Knouse, 83- 
 365 ; Becker v. Becker, 50-139. 
 
 981. Notice of further proceedings in 
 lower court : The opposite party is entitled to 
 some notice that the case is again upon the 
 docket before judgment can be rendered, upon 
 the case being remanded: Messenger v. 
 Marsh, 6-491. 
 
 982. Proceedings in lower court after 
 reversal and remand: After a cause is re- 
 manded with direction that a certain judg- 
 ment be entered, no fact existing prior to 
 the first hearing in the lower court can be 
 interposed as a reason against the entry of 
 such judgment : Lord v. Ellis, 11-170. 
 
 As to whether amended or additional plead- 
 ings may be filed in the court below after a 
 cause is reversed and remanded, see Plead- 
 ings, g§ 828-339. 
 
 983. Where a decree was reversed on the 
 ground that the court below had erred in 
 
 overruling a motion to strike certain deposi- 
 tions from the files, for the reason that they 
 had been taken without authority, and the 
 cause remanded, held, that the court below 
 could not be required to dismiss the cause or 
 enter decree for the opposite party, but must 
 proceed to try the case anew : Kershman v, 
 Swehla, 62-654. 
 
 984. Where a cause was reversed on one 
 point and sent back for a new trial and 
 further proceedings not inconsistent with 
 the* opinion in the supreme court, held, that 
 plaintiff (appellee on the appeal) was not re- 
 quired to introduce evidence on an issue de- 
 termined in his favor on the former trial and 
 which was regai-ded as settled in his favor 
 on the appeal, and as to which no inquiry 
 was authorized by the opinion; and this 
 even though defendant, in an amended an- 
 swer after the cause was remanded, had de- 
 nied the fact involved therein: Croup v, 
 Morton, 53-599. 
 
 985. Where a motion for a new trial is 
 overruled in the court below and that action 
 of the court is reversed on appeal, nothing 
 remains to the court below but to proceed 
 with a new trial. It cannot receive other af- 
 fidavits and pass again upon the njiotion for a 
 new trial : Pomroy v. Parmlee, 10-154. 
 
 986.- If judgment is reversed for error of 
 law in entering judgment on a finding of 
 facts and the case remanded for a proper 
 judgment upon such finding, judgment 
 should be entered without a retxlal : Roberts 
 V. CorUn, 28-355; Drefahl v. Tuttle, 42-111. 
 
 987. But this rule is not applicable where 
 a motion for a verdict upon the evidence is 
 overruled in the lower court, and on appeal 
 it is held that such motion should have been 
 sustained. The lower court might have, 
 even after sustaining the motion, allowed the 
 introduction of other evidence omitted by 
 mistake or inadvertence, and the supreme 
 court will not, by rendering final judgment 
 upon the motion for verdict upon the evi- 
 dence, cut off the opportunity which would 
 have existed in the lower court to introduce 
 such additional evidence : Meadows v. Hawk- 
 eye Ins. Co., 67-57. 
 
 988. Where it was held on appeal that a 
 new trial had been improperly granted on 
 account of insufficient evidence, and the 
 cause was remanded, held, that defendant 
 
APPEAL, VII, d. 
 
 105 
 
 Equity cases de novo. 
 
 was not entitled to judgment in the court 
 below, but that it was the duty of that court 
 to proceed and determine the issues joined in 
 the petition for new trial as if no appeal had 
 been taken : Dryden v. Wi/lUs, 53-390. 
 
 989. Where plaintiff in an action on a tax 
 title set up generally the payment of taxes 
 without specifying times or amounts, and the 
 title was held invalid and the cause re- 
 manded for determination of amount plaint- 
 iff was entitled to recover for taxes paid and 
 judgment therefor, held, that defendant 
 might appear in the lower court and contest 
 plaintiff's claim for taxes paid : Miller v. Cor- 
 hin, 48-525. 
 
 990. If, from the judgment of the supreme 
 court, it appears that the cause of action no 
 longer exists, or, in other words, there is 
 nothing left upon which the court below can 
 act; the case upon being remanded to the 
 lower court should be dismissed, and refusal 
 of the lower court to do so may be corrected 
 by certiorari: Edgar v. Greer, 14-211. 
 
 991. The court below should, upon the 
 filing of a procedendo directing it to enter 
 judgment in accordance with the opinion of 
 the supreme court, proceed to enter such 
 judgment irrespective of any notice by the 
 adverse party of his intention to file a peti- 
 tion for a rehearing : Fenton v. Way. 44r-438. 
 
 992. "Where an answer containing three 
 distinct defenses was demurred to, the de- 
 murrer sustained, and upon appeal the action 
 of the court reversed as to the first cause, the 
 other two not being passed upon, held, that 
 defendant had no standing in the court be- 
 low except on the first cause, but on a sub- 
 sequent appeal the defendant had the right 
 to have the sufficiency of the other defenses 
 passed upon: Bates v. Kemp, 13-223. 
 
 d. Trial of equity cases de novo. 
 
 Special proceedings are not triable de 
 novo: See supra, VII, b. 
 
 993. Cases tried as equitable: Where a 
 proceeding has been treated without objec- 
 tion in the lower court as equitable, it is to 
 be so treated in the supreme court: Hin- 
 trager v. Sumbargo, 54^604 ; Baloh v. Ashton, 
 54-123; Manchester v. Hoag, 66-649; Fritz- 
 ler V. Robinson, 70 . 
 
 994. Where an equitable action and a 
 counter-claim therein were both tried in the 
 
 court below as in equity, held, that on appeal 
 all the issues would be triable de novo, 
 although the counter-claim was legal in its 
 nature : Taylor v. Kier, 54-645. 
 
 995. Where the issues are equitable, it will 
 be presumed that the case was tried as an 
 equitable action, unless the record shows the 
 contrary: Baldwin v. Davis, 68-281. 
 
 996. Trial de novo is the proper method 
 ill equity : Equity oases tried by the method 
 provided by statute must on appeal be heard 
 de novo. The appellant cannot have the 
 case tried in any other manner. It is the 
 mode of trial and not the character of the case 
 and the relief sought which determine the 
 method of trial on appeal: Blough v. Van 
 Hoorebeke, 48-40. 
 
 997. The only mode contemplated by the 
 constitution for removing chancery cases to 
 the supreme court is by appeal, and although 
 no objection has been made to the hearing of 
 such cases upon writ of error, the court does 
 not obtain jurisdiction by such method, and 
 may dismiss the case : McPoland v. Fitzpat- 
 riek, 1 G. Gr., 543. 
 
 But see, as to review of errors duly pre- 
 served and assigned, infra, §§ 1008-1012. 
 
 998. Where a case was on appeal properly 
 triable de novo,, held, that the court would 
 not refuse to try it in that manner because 
 the attorney, by reason of a mistaken belief 
 as to the proper method of trial in such an 
 appeal, had not embodied all the evidence in 
 the abstract, or introduced evidence ia the 
 court below which he wished to have con- 
 sidered on such appeal: Sherwood v. Slier- 
 wood, 44-192. 
 
 999. An equity case will be tried de novo 
 on appeal, notwithstanding the special find- 
 ing of the jury on the trial below : Chambers 
 V. Ingham, 25-222. 
 
 1000. Where an equitable action is triable 
 de novo on appeal, the fact that the referee re- 
 ports the facts and conclusions of law sepa- 
 rately will not give to his findings the effect of 
 a special verdict, and the supreme court may 
 still try the case upon the facts : Cooper v. 
 Sheet, 14-578. 
 
 1001. The constitution guaranties the- 
 right of trial de novo on appeal in an equi- 
 table action, and a former statutory provision 
 for a review of divorce and foreclosure cases 
 only upon errors assigned was held uncon- 
 
106 
 
 APPEAL, VII, d. 
 
 Equity cases de novo. 
 
 stitutional: Sherwood v. Sherwood, 44r-192; 
 Howe Machine Co. v. Woolly, 50-549. 
 
 1002. Where appellant insists upon a trial 
 de novo, and appellee objects, there can be 
 no ground of complaint of either party where 
 the court tries the cause anew and "affirms 
 the judgment: McClain v. McClain, 57-167. 
 
 1003. Regulations as to method: Al- 
 though the legislature cannot take away the 
 right of trial de novo on appeal in equity 
 cases, yet the manner of its exercise may be 
 regulated : Richards v. Hintrager, 45-353. 
 
 1004. The right to a trial de novo in equity 
 •cases on appeal is granted by the constitu- 
 tion only where the mode and manner pre- 
 scribed by statute have been followed in the 
 court below and the necessary steps taken to 
 obtain such a form of trial on appeal : Sisters 
 of Visitation v. Glass, 45-154. 
 
 1005. Where a divorce case was not tried 
 in open court, as required by statute, but was 
 sent to a referee who reported the evidence, 
 with his findings, to the court, and all the 
 ■evidence was taken to the supreme court on 
 appeal, held, that as the trial in the court be- 
 low was not in the manner prescribed by 
 law, the supreme court could not try the 
 case de novo: Sobart v. Hdbart, 45-501. 
 
 1006. The legislature is not prohibited from 
 providing for the trial of chancery causes in 
 the supreme court upon questions of law cer- 
 tified by the court below. The provision pro- 
 hibiting appeals in cases where the amount 
 in controversy does not exceed one hundred 
 •dollars, except upon questions of law duly 
 certified, is not unconstitutional as prohibit- 
 ing a trial de novo: Andrews v. Burdick, 
 ■62-714. 
 
 1007. The rule is to try all cases on oral 
 ■evidence in the lower court, and in the su- 
 preme court on exceptions and errors duly 
 B,ssigned, and if trial de novo on appeal is de- 
 sired, the proper steps to secure it must be 
 taken: Finch v. Hollinger, 47-173. 
 
 1008. Trial of equity case on errors as- 
 signed: Where it did not appear that the 
 steps required by statute, in order to obtain 
 a trial de novo on appeal, had been taken, 
 held, that the case could not be tried in that 
 manner, but only as a law action upon erroi-s 
 assigned: Lynch v. Lynch, 28-326; Mallory 
 V. Luscombe, 31-269 : Twogood v. Reily, 48- 
 S46 ; Howe Machine Co. v. Woolly, 50-549. 
 
 1009. Where the necessary steps to secure 
 a trial de novo have not been taken, errors 
 of law properly assigned may be considered: 
 Jordan v. Wimer, 45-65 ; Lutz v. KeUey, 47- 
 307; Kershman v. Swehla, 62-654; supra, § 817. 
 
 1010. In such a case, it will be necessary 
 that the same steps shall have been taken to 
 preserve and present the errors relied upon 
 as must be taken in an action at law to se- 
 cure a hearing upon the errors : BucJcwalter 
 V. Craig, 34^215; Krapfel v. Piffner, 24^176; 
 Schmeltz v. Sehmeltz, 52-513. 
 
 1011. Parties have the right to prepare 
 and have an equity case tried on appeal upon 
 errors assigned, and may stipulate or agree 
 upon evidence introduced and considered in 
 the court below for that purpose: Sutchin- 
 son V. Wells. 6V-430. 
 
 1012. On appeal in an equitable case, from 
 a ruling upon a motion or demurrer, excep- 
 tions must be taken and errors assigned as in 
 an action by ordinary proceedings, and the 
 hearing will be only upon errors : Powers v. 
 O'Brien County, 54-501 ; Patterson v. Jack, 
 59-633. 
 
 1013. Law case not triable de novo: Even 
 though an action by ordinary proceedings is 
 tried on written evidence, and on appeal to 
 the supreme court all the evidence is taken 
 up, the case will not be tried de novo but only 
 upon errors: Dove v. Independent Sclwol 
 List, 41-689. 
 
 1014. Steps necessary to secure trial de 
 novo; motion and order: Under statutory 
 provisions not now in force (Code, § 2743 
 before its amendment), it was required that 
 a motion and order be made in the lower 
 court at the appearance term for trial upon 
 written evidence in order to secure a trial de 
 novo on appeal, and it was held that if such 
 motion and order were not made, a trial de 
 novo could not be had : Moses v. Continental 
 Ins. Co., 40-440; Altman v. Farrington, 45- 
 620; Woodbury County v. Lambert, 51-698. 
 
 1015. It was also held that the motion 
 should be in writing and filed, and that a 
 nunc pro tunc order at a subsequent term 
 would not make good the want of such mo- 
 tion : Trescott v. Barnes, 46-644. 
 
 1016. So it was held that an order at the 
 appearance term for trial upon written evi- 
 dence was necessary : Walker v. Beaver, 50- 
 504. 
 
APPEAL, VII, d. 
 
 107 
 
 Equity cases de novo. 
 
 1017. It was also required that the order 
 must be in -writing and made before the trial : 
 Berryhill v. Smith, 51-137. 
 
 1018. Where the certificate of the judge 
 recited that the case was tried upon oral 
 testimony taken down in writing on the trial, 
 as by order of the court, held, that it did not 
 sufficiently appear that there was an order 
 for trial upon written evidence, or that there 
 was such trial : MoShane v. IlcShane. 49-310. 
 
 1019. An order that the evidence should 
 be taken down in writing, made at the time 
 the case was called for trial, instead of at the 
 appearance term, was held not sufficient: 
 Clark V. Reynolds, 46-674. 
 
 1020. And that such order must be in 
 writing and made before the trial : Berryhill 
 V. Smith, 51-137. 
 
 1021. And that where there was neither 
 motion nor order, there could be no trial de 
 novo: Ibid. ; Ashoraft v. De Armond, 44-239 ; 
 Howe Machine Co. v. Woolly, 50-549. 
 
 1022. The appearance term in this con- 
 nection was held to be that term at which it 
 should be first ascertained that an issue of 
 fact was to be tried : Vinsant v. Vinsant, 47- 
 594; Woodbury County v. Lambert, 51-698. 
 
 1023. Motion or order of record: Under 
 these provisions it was held that the motion 
 or order for trial on written evidence should 
 appear of record, and that the certificate of 
 the judge that there was such motion or 
 order would not be sufficient : Endersby v. 
 Endersby, 49-694. 
 
 1024. Also held, that the fact that the rec- 
 ord showed all the evidence to be before the 
 supreme court was not sufficient to warrant 
 the presumption that the proper motion and 
 order were made at the proper time: Hunt v. 
 Downs, 50-696. 
 
 1025. Agreement of parties: It was held, 
 however, that the motion itself was not es- 
 sential, and that a proper order made by the 
 court, by consent of parties, would be suf- 
 ficient : Robinson v. First Nat. Bank, 48-354. 
 
 1026. Also, that an agreement of the pai-- 
 ties at the appearance term, for trial upon 
 written evidence, would supersede the neces- 
 sity of a motion and order : Van Bogart v. 
 Van Bogart, 46-359. 
 
 1027. But it was held that such agreement 
 must be an express agreement, and that the 
 parties were entitled to know, at the appear- 
 
 ance term, whether the case was to be tried 
 de novo or not : Saunders v. Halliday, 48-81. 
 
 1028. In a particular case, held, that the 
 party was estopped by an agreement as to 
 the method of trial in the lower coui't from 
 obj'ecting to trial de novo on appeal: Ingle v. 
 Culbertson, 43-365. 
 
 1029. Consent of parties that an order be 
 made for trial upon written evidence, held 
 not to amount to a consent to trial de novo in 
 the supreme court: Woodbury County v. 
 Lambert, 51-698. 
 
 1030. Where the motion of a party in the 
 court below, for trial upon vpritten evidence, 
 was granted against the objection of the op- 
 posite party, held, that the party obtaining 
 the order could not, on appeal, object to trial 
 de novo: Fortney v. Jacoby, 51-95. 
 
 1031. Generally, as to steps necessary to 
 be taken to secure a trial de novo under such 
 previous statutory provisions, see, in addition 
 to above cases, Hammersham v. Fairall, 44- 
 463; Altman v. Farrington, 45-630; Clark 
 v. Reynolds, 46-674. 
 
 1032. Substitute for foregoing statute 
 not applicable to cases pending: The sub- 
 stitute provided by 17 Gr. A., chap. 145 (for 
 § 3743 of the Code), which made all issues of 
 fact in equitable actions triable either on 
 written evidence or evidence taken down in 
 writing, and rendered a motion or order at 
 the appearance term to secure such a trial 
 unnecessary, was held not applicable to pro- 
 ceedings on appeal from a judgment ren- 
 dered before the act took effect, although the 
 appeal was not taken until after that time : 
 Simondson v. Simondson, 50-110 ; Trebon v. 
 Zuraff, 50-180; Joliet Iron, etc., Co. v. Chi- 
 cago, C. & W. R. Co., 50-455. 
 
 1033. Also held, that as the substitute re- 
 lates to the form of trial in equity cases, it 
 would not apply in actions already com- 
 menced before its enactment, even though 
 not yet tried : Schmeltz v. Schmeltz, 53-513. 
 
 1034. But held, that as to the certificate 
 of the judge required to show that the evi- 
 dence was all reduced to writing, the provis- 
 ions were applicable to actions already com- 
 menced but not tried : Cornell v. Cornell, 54- 
 366. 
 
 1035. Wbat must appear of record to 
 warrant trial de novo: An equity cause 
 cannot be tried de novo in the supreme court 
 
108 
 
 APPEAL, VII, d. 
 
 Equity cases de novo. 
 
 unless the testimony is all embodied in the 
 record : Krapfd v. Pfiffner, 24-176 ; Maxwell 
 V. lAindy, 19-576. 
 
 1036. Where it does not appear from re- 
 citals in the decree or from a certificate of 
 the judge or clerk that the evidence is all 
 before the supreme court, the case will not 
 be tried de novo: Van Orman v. Spafford, 
 16-186; Anderson v. Easton, 16-56; Kellogg 
 V. Kelsey, 16-388; Winslow v. Turner, 20- 
 294 ; Pickett v. Hawes, 20-335 ; Wetlierell v. 
 Goodrich, 23-583. 
 
 1037. If the evidence is not all in the 
 record, the same presumption obtains as to 
 the correctness of the judgment of the court 
 below as in an ordinary action: State v. 
 Ortoigi, 27-528; Garner v. Pomroy, 11-149. 
 
 1038. Where the record did not show the 
 evidence upon which findings of fact by a 
 refei'ee were based, held, that the supreme 
 court could not try the case de novo: Lillie v. 
 Skinner, 46-329. 
 
 1039. The testimony and not simply the 
 facts found by the court should be set out in 
 the record : Pobb v. Dougherty, 14^379. 
 
 1040. Where the record contained a stipu- 
 lation as to certain facts, but no statement 
 that the cause was tried upon such stipula- 
 tion, held, that the cause could not be tried 
 de novo: Davenport v. Ells, 22-296. 
 
 1041. Where the bUl of exceptions re- 
 ferred to exhibits which did not appear of 
 record, so that it was apparent that the evi- 
 dence was not all before the court, on ap- 
 peal, held, that the decree below would not 
 be disturbed: Cook v. Woodbury County, 
 18-21. 
 
 1042. The court cannot try a case de novo 
 where it has before it the oral evidence taken 
 down in writing, but not the documentary 
 evidence: Howe v. Jones, 66-156. 
 
 1043. Where the record showed that cer- 
 tain facts were pi'oved without setting forth 
 the evidence by which such proof was made, 
 held, that the supreme court would not re- 
 fuse to try the case de novo because of the 
 omission of such evidence when no objection 
 appeared to have been made to its suificiency 
 at the trial, but that if it affirmatively ap- 
 peared that the record did not contain all the 
 facts proved or all the evidence submitted to 
 the lower court, its action would not be re- 
 viewed: Pickett V. Hawes, 20-885. 
 
 1044. If it should appear from an inspection 
 of the record that some item of the evidence 
 irrelevant to some issue in the case, or en- 
 tirely immaterial, was omitted from it, the 
 court would not on account of such omission 
 refuse to try the case anew. But to warrant 
 the court, however, in so trying the cause, 
 the irrelevancy or immateriality ojE the omit- 
 ted testimony must be clearly made to ap- 
 pear fi-om the evidence: Palo Alto County 
 V. Harrison, 68-81. 
 
 1045. Appellee cannot object to a trial de 
 novo on the ground that the record does not 
 contain evidence admitted against his objec- 
 tion but not contained in the abstract; it 
 must be presumed that as to him the admis- 
 sion would strengthen rather than weaken 
 appellant's cause: Clinton Lumber Co. v, 
 Mitchell, 61-132. 
 
 1046. Wliat the abstract must show: To 
 entitle the party appealing to a trial de novo 
 in an equitable action, it should appear from 
 the statements of his abstract, which will be 
 deemed true if not controverted, that the 
 evidence is all before the court : Britton v. 
 Central E. Co., 39-390. 
 
 1047. The court cannot consider a case 
 triable de novo where the abstract does not 
 purport to contain all the evidence : Britt v. 
 Case, 58-757. 
 
 1048. It must appear from the abstract not 
 only that all the evidence was made of record 
 on tlie trial below, but that all the evidence is 
 substantially embodied in the abstract : Greer 
 V. Dickey, 53-755. 
 
 1049. The abstract must purport to con- 
 tain all the evidence : Goodykoonts v. Sing- 
 land, 52-732. 
 
 1 050. If the action is triable on appeal de 
 novo, and the abstract does not purport to be 
 an abstract of all the evidence, the court will 
 not try the case, but will simply afiirm the 
 decree : Overholt v. Esmay, 54^748 ; Wilson v. 
 Blair, 55-745. 
 
 1051. Orjihe appeal may in such case be 
 dismissed on motion : Green v. Ronen, 59-83. 
 
 1052. Where the case was equitable in 
 nature, and the abstract purported to con- 
 tain all the evidence, and recited that such 
 evidence was by order of the court taken 
 down in writing and filed with the clerk, and 
 made part of the record, held, that there ap- 
 peared a sufiScient compliance with statute 
 
APPEAL, VII, d. 
 
 109 
 
 Equity cases de novo. 
 
 to entitle appellant to trial de novo on ap- 
 peal : Stoddard v. Hardwick, 46-160. 
 
 1053. Method of making evidence appear 
 of record: There are but three modes by 
 which the supreme court can know that all 
 the evidence introduced below is in the 
 record : 1st. By bill of exceptions stating that 
 fact. 3d. By certificate of the judge as 
 contemplated in Code, § 2742; and, 3d, by 
 certificate of the judge, agreement of parties, 
 or certificate of the clerk, as provided in 
 §3170: Flesherv. droves, 48-700. 
 
 1054. Judge's certiflcate ; when to be 
 given: Under the provisions of 17 G. A., ch. 
 145, that the evidence taken down in writing 
 on the trial of equitable actions should be 
 certified by the judge in term or vacation, 
 lield, that a certificate made at the second 
 term after the trial term by the successor of 
 the judge who tried the case was not suf- 
 ficient : Cornell v. Cornell, 54-366. 
 
 1055. Under the present substitute for 
 Code, § 3743 (19 G. A., ch. 35), the certificate 
 of the evidence by the judge must be made 
 during the time allowed for appeal (six 
 months): Mitchell v. Laub, 59-36; Page 
 County V. American Emigrant Co., 61-246; 
 Marshalltown v. Forney, 61-578; Preston v. 
 Hale, 65-409; Hartnett v. Sioux City, 66- 
 353. 
 
 1056. Where it does not appear at what 
 time the certificate of the evidence is made 
 by the judge the cause cannot be heard de 
 710V0. It should be made to appear afiSrma- 
 tively that the certificate was signed within 
 the time fixed by statute and it cannot be 
 presumed that it was so signed: Russell v. 
 Johnston, 67-379; Mitchell v. Laub, 59-36. 
 
 1057. Objection to the giving of a certifi- 
 cate after the time for appeal has expired is 
 not waived by a stipulation entered into by 
 the parties before the expiration of the time 
 for perfecting appeal, that the case shall be 
 heard at a particular term of the supreme 
 court : Hartnett v. Sioux City, 66-253. 
 
 1058. Evidence certified at such time as is 
 provided for under 19 G. A., ch. 35, although 
 before the passage of this act, may be con- 
 sidered in an appeal submitted after the 
 taking effect of the act: Starr v. Case, 59- 
 491. 
 
 1059. The judge may certify to the record 
 within the proper time, even though it be 
 
 after the appeal is taken : Goff v. HawTceye 
 Pump, etc., Co., 63-691. 
 
 1060. Where the certiflcate of the clerk as 
 to the evidence is sufficient to enable the 
 court to try the case de novo (see infra, 
 §§ 1079-1081), the provisions as to the time the 
 judge's certificate shall be made are not ap- 
 plicable: Cross V. Burlington & S. W. JR. 
 Co., 58-63. 
 
 1061. Certifying evidence taken by re- 
 porter: The taking down of the evidence in 
 shorthand, held, under 17 G. A., ch. 145, not 
 sufScleut compliance with the requirement 
 that the evidence be taken down in vtriting 
 
 •in open court to comply with the statute: 
 Godfrey v. McKean, 54r-127. 
 
 1062. But under present statutory provis- 
 ions (substitute for Code, § 2742, 19 G. A., 
 ch. 35), if the court orders the evidence taken 
 down in shorthand, and the evidence is so 
 taken and properly certified at the time, and 
 it is afterwards transcribed, this is a sufficient 
 taking down in writing. It is not necessary 
 that the translation or ti-anscript be made at 
 the time of the trial : Ross v. Loomis, 64r433 ; 
 Howe V. Jones, 66-156. 
 
 1063. A case cannot be tried de novo on 
 appeal uidess the evidence be certified by the 
 judge. It is not sufficient that the evidence 
 be taken in shorthand and the notes pre- 
 served : Carskaddon v. Bartlett, 68-180. 
 
 1064. But if the evidence is taken down in 
 shorthand by order of the court, and the 
 notes are afterwards transcribed by the re- 
 porter and certified by him and filed, such 
 transcript will be deemed written evidence ; 
 but this transcript must be filed within the 
 six months allowed for making the judge's 
 certificate. If the judge's certificate has 
 been made in proper form in connection with 
 the original notes as filed, it may be regarded 
 as so connected with the transcript when 
 made as to constitute, with the reporter's 
 certiflcate, a sufficient certiflcate of the evi- 
 dence ; but the certificate is not to be deemed 
 complete until the transcript is made and 
 certified by the reporter. This rule would, 
 perhaps, have no application in a case tried 
 by ordinary proceedings: Merrill v. Bowe,\ 
 69-653. 
 
 1065. It is no objection to the trial of a 
 case de novo that the evidence was not taken 
 down and certified by the official reporter 
 
110 
 
 APPEAL, VII, d. 
 
 Equity cases de novo. 
 
 ■where it is tried upon written evidence: 
 Gately v. Kniss, 64-537. 
 
 1066. Sufiiciency of judge's certificate: 
 A certificate not attached to any evidence, 
 but merely showing the names of the wit- 
 nesses, and the side upon which they were 
 introduced, respectively, without referring to 
 any testimony as taken in writing, held, in- 
 sufficient : Alexander v. MeOrew, 57-287. 
 
 1067. In a particular case, held, that the 
 certificate, although not attached to the evi- 
 dence, identified the diflEerent instruments of 
 evidence with as much certainty as was pos- 
 sible under the circumstances, and was suffi- 
 cient in that respect: Palo Alto County v. 
 Harrison, 68-81. 
 
 1068. Where, upon a trial of an issue as to 
 one defendant, he introduced the same evi- 
 dence that was introduced on the hearing of 
 the case as to another defendant, held, that 
 it was sufficient that the certificate of the 
 judge appeared as to the evidence introduced 
 on the first issue, and it need not be certified 
 again as evidence introduced on the second 
 trial : JEtna L. Ins. Co. v. Bishop, 69-645. 
 
 1069. Certificate by the judge trying tbe 
 case: Where the trial is had before the judge 
 of another district or circuit holding court by 
 exchange, the judge trying the case can give 
 the certificate within the time provided by 
 statute, although he has left the district or 
 circuit where the trial was held: Howe v. 
 Jones, 66-156. 
 
 1070. What certificate must show: To 
 secure a trial de novo in the supreme court 
 in an equitable action, it is necessary that 
 the certificate of the judge show that all the 
 evidence offered upon the trial is before the 
 court. The certificate that the evidence pre- 
 served is all the evidence which was intro- 
 duced is not sufficient : Taylor v. Kier, 54- 
 645 ; Oroneweg v. Barnum, 70 . 
 
 1071. So held as to a certificate showing 
 that the record contained all the evidence 
 used on the trial : Hart v. Jackson, 57-75. 
 
 1072. So held, also, as to a certificate that 
 the record contained all the evidence " ad- 
 duced," it further appearing from the record 
 itself that in several instances evidence was 
 offered and excluded which was not made 
 part of the record : Tuttle v. Story County, 
 66-316. 
 
 1073. Acertfficate that the evidence cer- 
 
 tified was all that was " offered, adduced 
 and introduced," TieW sufficient: Marshall- 
 town V. Forney, 61-578. 
 
 1074. So held, also, as to a certfficate 
 that the evidence certified "is all the evi- 
 dence offered in said trial, as well as the evi- 
 dence introduced and admitted and used in 
 the trial:" Wood v. Wood, 61-256. 
 
 1075. A certificate that the evidence cer- 
 tified was " all the evidence submitted in 
 said cause," h^ld sufficient: Miller v. Wolf, 
 63-233. 
 
 1076. Certificate of referee: Where a 
 judgment is rendered upon a referee's report 
 it is not sufficient that the evidence is certi- 
 fied by the referee, but it must be certified 
 by the judge : Porter v. Everett, 66-378. 
 
 1077. Agreement of the parties as to 
 what the evidence was on the trial in the 
 court below, was, under Code, § 3743, before 
 amendment, the only thing which could ren- 
 der unnecessary the certificate of the trial 
 judge that the record contains all the evi- 
 dence : Vinsant v. Vinsant, 47-594. 
 
 1078. Under the present substitute for that 
 section, if by the agreement of the parties the 
 facts are reduced to a statement in writing, 
 such statement takes the place of depositions 
 or of oral testimony reduced to writing and 
 becomes the evidence in the case, and upon 
 such evidence the case may be tried de novo 
 on appeal : Williams v. Wells, 63-740. 
 
 1079. The certificate of the clerk that the 
 transcript contains all the evidence on file 
 does not sufficiently show that the evidence 
 thus certified was all that was used in the 
 court below : Grant v. Grant, 46-478 ; Da- 
 venport V. Ells, 33-296. 
 
 1080. It appearing that in an equitable 
 action a trial by written evidence was or- 
 dered by the court at the proper time (under 
 the statute then in force requiring such or- 
 der), held, that it would be presumed that 
 the trial was in that manner, and a certificate 
 of the clerk that all the evidence was before 
 the supreme court would be sufficient, al- 
 though he should certify that the case was 
 tried upon depositions, record evidence and 
 oral evidence, the certificate as to the man- 
 ner in which the cause was tried being with- 
 out authority: Ryan v. Mullinix, 45-631. 
 
 1081. Where it appears that the evidence 
 on the trial of an equitable action consists 
 
APPEAL, VII, d. 
 
 Ill 
 
 Equity cases de novo. 
 
 wholly of depositions and papers on file, the 
 certificate of the clerk to such evidence is 
 Bufflcient to authorize the supreme court to 
 entertain the appeal. The rule requiring the 
 certificate of the judge to be made during 
 the term has no application to such certificate 
 of the clerk : Cross v. Burlington & S. W. R. 
 Co., 58-63. 
 
 1083. Opening' and closing argument: In 
 a trial de novo in the supreme court, the 
 party having the burden of proof in the case 
 is entitled to the opening and closing of the 
 argument : Steel v. Fife, 48-99 ; Alexander v. 
 McOrew, 57-387 ; Devore v. Adams, 68-385. 
 
 1083. And where the burden of proof was 
 upon appellee, held, that a reply filed by ap- 
 pellant to appellee's closing argument might 
 be stricken out on motion: Steel v. Fife, 
 48-99. 
 
 1084. The hearing and determination: 
 On an appeal in an equitable action the court 
 will examine into the merits of the case for 
 the purpose of administering justice, guided 
 only by the universal principles of equity 
 jurisprudence, not being confined to errors 
 apparent on the record: Austin v. Carpenter, 
 3 G. Gr., 131. 
 
 1085. On such an appeal the facts, as well 
 as the law of the case, are again reviewed 
 and adjudicated : Pierce v. Wilson, 3-30. 
 
 1086. The court, however, can only act 
 upon the testimony upon which the decree 
 below was rendered : Walker v. Ayres, 1-449. 
 
 1087. It cannot, although the case be tri- 
 able de novo, consider testimony not pre- 
 sented to and considered by the court below : 
 McGregor v. Gardner, 16-538. 
 
 1088. Upon trial de novo the court cannot 
 determine a question as to which no issue is 
 raised on the trial below : Wheeler & Wilson 
 JtTf'g Co. V. Hasbrouck, 68-554. 
 
 1089. The difference between a court hav- 
 ing appellate jurisdiction proper and a court 
 for the correction of errors at law is, substan- 
 tially, that the former tries cases de novo and 
 renders such judgment as should be rendered 
 upon the facts and the law, while the latter 
 simply inquires into alleged errors of law 
 committed by the lower court. Under our 
 constitution the supreme court has jurisdic- 
 tion to try de novo on appeal only chancery 
 cases: Sherwood v. Sherwood, 44r-193. 
 
 1090. If a case is tried as an equitable one 
 
 in the court below, and the proper steps are- 
 taken to secure a trial de novo on appeal, the 
 case must be so tried, and not upon assign- 
 ment of errors. The method of trial in the 
 supreme court is dependent upon the manner 
 iu which the case was tried below, and not 
 upon the nature of the case : Blough v. Van 
 Hoorebeke, 48-40. 
 And see supra, g§ 996-1003. 
 
 1091. (Juestions as to admissibility of 
 evidence: On the trial of an equitable action 
 de novo on appeal, questions as to competency 
 of testimony, admissibility of depositions, 
 etc., come up as original questions upon the 
 objections made in the court below, and upon 
 their decision the testimony is considered or 
 rejected, as the case may be. If found com- 
 petent and admissible the testimony is con- 
 sidered, although it was excluded in the 
 court below, but the decision is not thereby 
 reversed, unless the consideration of such 
 testimony makes a different conclusion neces- 
 sary : Blough v. Van Hoorebeke, 48-40. 
 
 1092. Error in the admission of evidence 
 in an equity case triable de novo on appeal 
 does not constitute a ground of reversal: 
 Hasner v. Patterson, 70 . 
 
 1093. Immaterial evidence will be dis- 
 regarded, whether objected to on the trial 
 below or not : Cook v. Smith, 50-700. 
 
 1094. Upon trial of an equitable action de 
 novo, the supreme court passes upon the suf- 
 ficiency of the evidence properly admitted, 
 and need not consider the objections to the 
 admissibility of evidence made in the court 
 below : Hanks v. Van Oarder, 59-179. 
 
 109.5. The fact that evidence has been 
 erroneously admitted in the lower court in 
 such a case will not render a reversal neces- 
 sary, but such evidence will be disregarded, 
 and the final determination of the case will 
 be made upon evidence properly received: 
 Van Bogart v. Van Bogart, 46-359 ; Putney 
 V. O'Brien, 53-117. 
 
 1096. If, however, testimony which is 
 properly admissible, but is rejected by the 
 lower court, is not a part of the record, the 
 determination that there was error in the 
 action of the lower court in excluding it 
 would render it necessary to reverse the judg- 
 ment and remand the cause. The proper 
 practice in such cases is to permit all testi- 
 mony to wMch objections are sustained to b& 
 
112 
 
 APPEAL, VII, d. 
 
 Equity oases de novo. 
 
 made part of the record, so that if held admis- 
 sible by the supreme court it may be con- 
 sidered upon the trial in that court : Blough 
 V. Van HoorebeJce, 48-40. 
 
 1097. As the provisions of Code, § 3743, as 
 amended, can be complied with and the full 
 benefit of a trial de novo be secured only by 
 causing aU the evidence offered to be written 
 down, if questions asked are not permitted 
 to be answered, and thus made part of the 
 record, the defeated party must be allowed 
 to have a review of such questions upon 
 error. Otherwise he would be denied the 
 benefit of an appeal : Clinton I/umber Co. v. 
 Mitchell, 61-133. 
 
 1098. Where in the trial of an equitable 
 action a deposition was eri'oneously stricken 
 from the files, held, that the supreme court 
 would not try the case de novo, considering 
 such deposition, but would remand the case 
 for a new trial, in oi-der that the opposing 
 party might have an opportunity to introduce 
 further evidence on his part : Sweet v. Brown, 
 61-669. 
 
 1099. The supreme court will reverse a 
 decree of the lower court where it is appar- 
 ent upon the record that there is not suffi- 
 cient evidence to sustain it ; but if the record 
 entry recites that there was other evidence, 
 which would be sufficient, and which may 
 have been lost, the case will be remanded for 
 a retrial: Webster County v. Taylor, 19-117. 
 
 1100. It being the practice in the trial of 
 equity cases in the trial courts to admit evi- 
 dence offered, without ruling as to its admis- 
 sibility, a party who, by cross-examining a 
 witness, calls out the same evidence which he 
 has objected to in chief, will not be deemed 
 to have waived his objection: Donnel v. 
 Braden, 70 . 
 
 1101. What questions considered: Where 
 a case is tried de novo, all questions may be 
 presented in the supreme court which legiti- 
 mately arise on the record, whether they were 
 urged or relied on in argument in the lower 
 court or not : Seymour v. Shea, 63-708. 
 
 1102. Alleged errors in interlocutory pro- 
 ceedings will not be considered, but the su- 
 preme court will try the case on its merits : 
 Hackworth v. Zollars, 30-433; State v. Or- 
 wig, 37-538. 
 
 1103. Case not to be remanded: It is not 
 the duty of the court in a trial de rtovo, when 
 
 it appears that the evidence is not sufficient 
 to support the judgment in the court below, 
 to remand the case for a new trial in order 
 that the party who is unsuccessful on the 
 appeal may have the opportunity of intro- 
 ducing additional evidence: WicTcersham v. 
 Beeves, 1-413. 
 
 1104. Afiirmance; former adjndication: 
 A judgment in an equity case which is af- 
 firmed on appeal to the supreme court, for 
 the reason that proper steps were not taken 
 to seoyi'e a hearing on the merits, is conclu- 
 sive as a former adjudication, and may be 
 pleaded as such when the same question 
 arises in another action, although the decision 
 of the supreme court, if the case could have 
 been heard on the merits, would have been 
 different : Trescott v. Barnes, 51-409. 
 
 1105. When case will be remanded: 
 Where the supreme court holds that an equi- 
 table action is not triable de novo on appeal 
 for want of the proper steps having been 
 taken, but reverses the judgment on errors 
 assigned, it carmot enter a final decree but 
 must send the case back for further proceed- 
 ings: Jordan v. Winser, 48-180; Kershman 
 V. Swehla, 63-654. 
 
 1100. Where objection to non-joinder of 
 necessary parties defendant is made for the 
 first time on the hearing of a case triable de 
 novo in the supreme court, such want of 
 proper parties will not cause the biU to be 
 dismissed, but the action will be remanded 
 with leave to have the necessary parties 
 brought ia.: Postlewait v. Hoives, 8-365. 
 
 1107. Where the trial court had struck a 
 deposition of a party from the files because 
 not taken within the time required by order 
 of the com-t, held, on appeal, that although 
 such action of the court was erroneous, the 
 supreme court would not proceed to try the 
 case anew on the evidence submitted below 
 and the deposition thus stricken from the 
 files, but would remand it for the purpose of 
 allowing the opposite party to present addi- 
 tional evidence, so that the party whose dep- 
 osition was thus stricken out would not be 
 able to take advantage of the error of the 
 court below in refusing to consider his depo- 
 sition : Sweet v. Brown, 61-669. 
 
 1108. When an equity cause is, upon ap- 
 peal, not tried de novo, but is reversed on 
 errors assigned, and remanded, it stands for 
 
APPEAL, VII, d. 
 
 113 
 
 Equity cases de novo. 
 
 trial anew as a law action : Jordan v. Win- 
 sei; 48-180. 
 
 1109. Modiflcatiou of decrcp: The su- 
 preme court will not, on appeal, make a mod- 
 ification of a decree so as to render it more 
 favorable to the party who does not appeal, 
 even though it may seem from the record 
 that such change would be proper if there 
 had been an appeal by such party : Smith v. 
 Wolf, 55-555. 
 
 1110. Where there was nothing in the rec- 
 ord indicating that an appeal was taken for 
 delay, and the judgment of the lower court 
 was afiirmed after the expiration of the time 
 fixed therein for performance by the unsuc- 
 cessful party, h'eld, that the time for perform- 
 ance should be extended so as to allow an 
 opportunity to such party to perform the de- 
 cree as affirmed : Daniels v. St. Louis, K. C. 
 &N. R. Co., 56-192. 
 
 1111. Final decree: Where an equity case 
 is appealed and tried anew, and the action of 
 the court below is determined to have been 
 erroneous, the successful party is entitled to 
 have such decree as is proper on the record 
 as made in the court bel6w, entered up in 
 the supreme court : First Nat. Bank v. Baker, 
 60-132. 
 
 1112. While the successful party is ordi- 
 narily entitled to a decree in the supreme 
 court, and the cause cannot be remanded, 
 yet there are exceptions to such rule. Where 
 it appeared that by mistake the allegations 
 of the petition were erroneous in the descrip- 
 tion of a highway with reference to which 
 relief was asked, held, that the case might 
 be remanded for the purpose of enabling 
 plaintiff to amend his petition so as to secure 
 such relief, it not appearing that plaintiff or 
 his attorney were chargeable with negligence 
 in connection with such mistake : White v. 
 Farlie, 67-628. 
 
 1113. In lower court: While either of the 
 parties is entitled, upon a ti-ial de novo, to 
 have a final decree entered in the supreme 
 court, yet if the judgment is such as to affect 
 the title to i-eal estate, it should properly be 
 entered in the court where the case was 
 tried : Hait v. Ensign, 61-724. 
 
 1114. Proceedings in lower court after 
 remand: After an equitable action has been 
 tried de novo in the supreme court and re- 
 manded to the lower court for deci-oe, in ac- 
 
 VOL. 1 — 8 
 
 cordance with the decision of the supreme 
 court, the party cannot amend his pleadings 
 and present a defense that existed when th>^ 
 issues were first tried in the court below : 
 Sexton V. Henderson, 47-131. 
 
 1115. After reversal in a suit in equity, 
 which is remanded for further proceedings 
 not inconsistent with the opinion, it stands 
 precisely as any suit in equity stands between 
 the submission and the entry of the decree, 
 the court being fully advised in the premise,s 
 and the decision announced as to what de- 
 cree should be entered upon the pleadings 
 and evidence as they stand. The introduc- 
 tion of new evidence, omitted by inadvert- 
 ence, or the filing of additional or amended 
 pleadings, might be allowed in the discretion 
 of the court, in view of the circumstances 
 and in furtherance of substantial justice; 
 but could not be claimed as a right : Adams 
 County V. Burlington & M. R. R. Co., 44r- 
 335. 
 
 IIIG. The allowance of an amendment 
 and tendering a new issue after trial de novo 
 in supreme court, and remanding of cause 
 for judgment in court below and procedendo 
 filed, should be made only on the strong- 
 est showing of accident or mistake, or for 
 matters arising subsequent to the decree or 
 the like. A party cannot be allowed to try 
 his cause by piecemeal. But where a show- 
 ing of diligence is made by affidavits, suf- 
 ficient to entitle a party to show mistake and 
 introduce a new issue, the question of dili- 
 gence in discovery of the mistake is not fur- 
 ther in issue, and neither that issue nor any 
 of the former issues in the case, but only the 
 new issue, is to be tried: Adams County v. 
 Burlington & M. R. R. Co., 55-04. 
 
 1117. When an equity case is remanded 
 for judgment in the lower court, the parties 
 may introduce material evidence which has 
 been discovered since the original trial, and 
 may set up matters materially affecting the 
 merits of the case which have occurred since 
 the former trial, and the amendment to the 
 pleadings necessary to such purpose may be 
 made ; but a party cannot set up by way of 
 amendment matter existing at the time of 
 the former trial, and which he omitted to set 
 up at .that time: Sanooey v. Iowa City Class 
 Co., 68-543. 
 
 1118. A gi-ant of leave, in a decree entered 
 
114 
 
 APPEAL, VII. o. 
 
 Rehearing. 
 
 under procedendo from the supreme court, 
 to one defendant to withdraw her answer, 
 held, not to have the effect of continuing or 
 dismissing tlie case as to such defendant, es- 
 pecially when the decree was immediately 
 afterwards set aside, and a new decree en- 
 tered without such leave: MeOregor v. 
 McGregor, 21-441. 
 
 1119. Where a cause is remanded to the 
 lower court after trial de novo, merely for 
 judgment, without further directions, judg- 
 )nent must be rendered as a matter of course, 
 and upon motion, unless the unsuccessful 
 party shall bring himself within some recog- 
 nized rule which would entitle him to a new 
 trial : Austin v. Wilson, 57-586. 
 
 1 120. Where, in an equity case, there can- 
 not be a trial de novo because of error in 
 excluding evidence in the lo?.er court which 
 does not appear of record, the supreme court 
 cannot render a final judgment, but will re- 
 mand the cause. In such a case the court 
 below cannot render a final decree, but must 
 pei-mit a new trial : Kershman v. Sicehla, 
 63-654. 
 
 1121. Eri'oueous action of the lower court 
 in illowing a, party to introduce additional 
 evidence after an equitable cause has been 
 remanded to the court below for a decree in 
 conformity with the opinion of the court, 
 is not an order so materially affecting the 
 final decision that an appeal can be taken 
 therefrom before the rendition of final judg- 
 ment : Garmoe v. Sturgeon, 67-700. 
 
 e. Reltearing. 
 
 1122. Provisions applicable in rrimiiial 
 
 cases : The provisions as to rehearing found 
 in the code of civil procedure are applicable in 
 criminal cases as well as in civil, and in favor 
 of the state as well as the defendant : State v. 
 Jones, 64^349. 
 
 112.S. At what time: In the absence of 
 any statute upon the subject or rule of court 
 (see now. Rule 87), Mid, that a rehearing 
 would not be granted at a term subsequent 
 to that at which the decision was rendered : 
 Emerson v. Tomlinson, 4 G. Gr., 398. 
 
 1124r. Upon the same case and record: 
 A new case cannot be made on a petition for 
 rehearing, nor matters insisted upon which 
 were not presented in the original case: 
 
 Hintrager V. Hennessy, 46-600, 604; Mann v. 
 Sioux City cfc P. E. Co., 46-637, 643. 
 
 1125. So the court cannot, upon rehearing, 
 consider an additional abstract or amended 
 record not before them at the first hearing: 
 Cramer v. Burlington, 45-627; Nixon v. 
 Doicney, 49-166; Parsons v. Parsons, 66- 
 754. 
 
 1ia(5. An additional abstract filed by ap- 
 pellee upon rehearing cannot be considered : 
 Simplot V. Dubuque, 49-630. 
 
 1127. The fact of an appeal having been 
 taken not being shown by the abstract, held, 
 that such fact could not be shown on a peti- 
 tion for rehearing: Hintrager v. Hennessy, 
 46-600. 
 
 1128. The fact that additional evidence 
 has been discovered since the trial of the case 
 in the court below is no ground for re- 
 hearing : Zuver v. Lyons, 40-510. 
 
 1129. Certificate of appeal to U. S. sn- 
 preiiie court: The certificate that the validity 
 of a statute was drawn in question in the 
 case on the- ground that it was in conflict 
 with the constitution of the United States 
 will not be given where the question of sucli 
 conflict was first raised in the petition for re- 
 hearing in the supreme court. The fact 
 which is essential to give the supreme court 
 of the United States jurisdiction on appeal 
 from the state supreme court must appear on 
 the face of the record. It is not sufficient 
 that it be made in the argument of counsel : 
 Martin v. Cole, 38-141. 
 
 1130. Copy of opinion: Before the modi- 
 fication of Rule 90 of the supreme court, held, 
 that the requirement that a copy of the pe- 
 tition for rehearing should be delivered to 
 tire attorney of the adverse party must be 
 observed: Austin v. Wilson, 52-731. 
 
 1 131. A petition for rehearing which does 
 not contain the original opinion printed in 
 full, or a reference to the number and page 
 of the Northwestern Reporter in which the 
 opinion is printed, will bo stricken from the 
 files : Kerviek v. Mitchell, 68-273. 
 
 1132. Remitting excess on rehearing: 
 Where a cause was reversed on appeal be- 
 cause the judgment for plaintiff included au 
 item erroneously allowed, held, that appellee 
 might, on rehearing, offer to remit the ex- 
 cess over the amount of the proper judg- 
 ment, and judgment for the balance would 
 
APPEAL, VII, e, f. 
 
 rjo 
 
 Rehearing. — Effect upon proceedings below. 
 
 be entered in the supreme court; Hyde v. 
 Minneapolis Lumber Co., 53-343. 
 
 1133. Not granted to party ivho has not 
 argued; may be granted on court's own 
 motion : The supreme court will not grant a 
 rehearing upon the application of a pai-ty 
 who failed to file or make an argument when 
 the cause was submitted. But if it is satis- 
 fied that error has been committed, it will, 
 on its own motion, order a rehearing for the 
 purpose of correcting the error : Wachendorf 
 V. Lancaster, 6t-509. 
 
 1134. Argument on rehearing: After the 
 opposite party has filed a reply to the petition 
 for rehearing, neither party has the right to 
 file any other argument : Webster Cmmty v. 
 Hutchinson, 60-731. 
 
 113.5. Bill of review: The statute having 
 provided for a petition for rehearing and not 
 for a bill of review, an implication arises 
 against the right to file a bill of that kind : 
 McGregor v. Gardner, 16-538. 
 
 1136. Effect of curative act: Where a cu- 
 rative act is passed while a case in which the 
 defect sought to be cured is raised is pending 
 in the supreme court on reheai-ing, the case 
 will be regai'ded precisely as if no opinion 
 had been previously filed, and the defect will 
 be deemed cured : loiva R. Land Co. v. Sac 
 County, 39-124, 151. 
 
 1137. In ease of division: Where the 
 judgment on appeal stands affirmed by rea- 
 son of a division in the supreme court, such 
 affirmance is subject to reconsideration on 
 rehearing as any other judgment: Zeigler v. 
 Vance, 3-528. 
 
 1138. If, on rehearing, the court is equally 
 divided as to whether the former opinion 
 should be adhered to, the case wiU stand as 
 if the court had been equally divided on the 
 first hearing, and the judgment will be 
 affirmed : Richards v. Burden, 59-723, 754. 
 
 1139. Effect of rehearing after proce- 
 dendo: After the decision of a cause by the 
 supreme court, n procedendo was filed in the 
 court below, whereupon the proper steps 
 were taken to remove the cause to the fed- 
 eral court. Subsequently, and within the 
 proper time, a petition for rehearing was 
 filed in the supreme court and allowed ; Jield, 
 on a motion to dismiss in the supreme court, 
 that the cause was still pending there, and 
 had not been removed to the federal court by 
 
 proceedings in the court below : McKinley v. 
 Chicago <& N. W. R. Co., 44-314; Railroad 
 Co. V. McKinley, 99 U. S., 147. 
 
 f. lifect of appeal ujoon proceedings 
 helow. . 
 
 In attachment proceedings: As to the 
 effect of appeal on a judgment in an attach- 
 ment proceeding, see Attachment, VIII, f . 
 
 Supersedeas bond: As to liability of the 
 sureties upon the supersedeas bond, see supra, 
 gg 641-646. 
 
 1140. Restoration of property taken 
 under the judgment appealed from cannot, 
 in case of reversal, be given as a summary 
 remedy where such property has, by volun- 
 tary sale or by seizure and sale, passed to an 
 innocent purchaser, or has in the bona fide 
 discharge of a trust, pursuant to an order of 
 court, been turned over to another: Hans- 
 child V. Stafford, 27-301. 
 
 1141. Where, upon appeal, it was decided 
 that a writ of possession had been irregularly 
 issued by the court below, held, that such 
 fact did not, of itself, entitle the appellant to 
 a restoration of the possession taken from him 
 by such writ: Lombard v. Atwater, 46-501. 
 
 1142. Where, at the time of sale under a 
 judgment, an appeal therefrom was pending, 
 upon the subsequent determination of which 
 the judgment was reduced to an amount less 
 than that for which the plaintiff bought in 
 the property at the sale, held, that defendant 
 was not entitled to an order upon plaintiff 
 to repay the excess, but that the property 
 should be restored to defendant : Munson ?i. 
 Plummer. 58-736. 
 
 1143. Where the judgment under which 
 the successful par,ty has acted is reversed, it 
 becomes his legal duty to restore to the other 
 party all the property or its value taken under 
 the judgment, and, upon failure to do so, 
 action may be brought against him without 
 previous demand; Zimmerman v. National 
 Bank, 56-133. 
 
 1144. Purchaser with notice: Purchase 
 at sheriff's sale by the plaintiff in execution, 
 or his attorney, with actual knowledge of a 
 pending appeal, is at the peril of the pur- 
 chaser, and such person is not protected as a 
 bona fide purchaser; Twogood v. Franklin, 
 37-339. / 
 
116 
 
 APPEAL, VII, g — APPEARANCE. 
 
 Eules, etc. — What sufficient to constitute. 
 
 1145. In case of a purclaase by a judg- 
 ment creditor before notice of appeal, if he 
 again recovers on another trial, his title is 
 not affected : Frazier v. Crafts, 40-110. 
 
 1146. Where the purchaser at a judicial 
 sale, and the grantee holding under him, 
 paid only the costs and not the whole 
 amount bid, held, that not having paid 
 value they could not be regarded as good 
 faith purchasers ; and held, further, that the 
 attorney for the plaintiff in the lower court 
 and on appeal could not, upon purchase of 
 the property, become entitled to protection 
 as a good faith purchaser : O'Brien v. Harri- 
 son, 59-686. 
 
 1147. The provisions for the protection of 
 a purchaser at judicial sale as against a sub- 
 sequent reversal are not designed for the 
 benefit of parties claiming under a distinct 
 title : Wood v. Young, 38-103. 
 
 1148. Additional recovery on appeal; 
 foreclosure of mortgage: Where the mort- 
 gagee in an action to foreclose a mortgage 
 accepted and receipted the record for the 
 amount found due thereon, and thereafter 
 the mortgagor conveyed the property to a 
 third person, and afterward the mortgagee, 
 within due time, prosecuted his appeal and 
 obtained a decree for an additional amount, 
 held, that the additional decree thus secured 
 was not a lien as against the purchaser who 
 took without-notice Of any intention on the 
 part of the mortgagee to prosecute such ap- 
 peal : Davis v. Bonar, 15-17,1. 
 
 1149. Money paid over in pursuance of 
 judgment: Where plaintiff, in an action' to 
 ascertain which of two persons was en- 
 titled to certain money due on real property 
 purchased by him, paid the money into court, 
 and it was adjudged to belong to one of the 
 parties defendant, and was paid over to him, 
 and thereafter the other defendant appealed, 
 Jield, that upon reversal of the judgment 
 the appellant was not entitled to a recovery 
 against the plaintiff for the money thus 
 brought into court and already paid over to 
 the other defendant : White v. Butt, 32-335. 
 
 g. Rules, and exercise of powers. 
 
 1150. The rules of practice in courts of 
 last resort ought to be framed and inter- 
 preted rather with a view to the submission 
 of causes upon their merit, than to thejr dis- 
 
 position merely upon technical grounds : Palo 
 Alto County v. Harrison, 68-81. 
 
 1151. The rules of the supreme court as 
 to the practice therein have the force and 
 effect of laws duly enacted. They cannot 
 be regarded as matter of mere form, and un- 
 til abrogated must be substantially, at least, 
 obeyed in the preparation of absti'acts : State 
 ex rel. v. O'Day, 6&-213. 
 
 1152. The constitution gives the supreme 
 court jurisdiction and power to " exercise a 
 supervisory control over all inferior judicial 
 tribunals throughout the state," and while 
 ordinarily such control must be exercised in 
 strict accordance with the rules of procedure 
 which obtain in actions at law or in equity, 
 yet in anomalous and exceptional cases the 
 court is not bound hand and foot and rendered 
 powerless to redress palpable injustice caused 
 by the erroneous action of a lower court: 
 Poole V. Seney, 70 . 
 
 APPEABANCE. 
 
 As to JcTEiSDicnON Conferred by, see that 
 title. 
 
 1. What sufficient to constitute: TJndera 
 statutory provision (Code, § 2626), the memo- 
 randum in writing of appearance need not 
 in terms state that the defendant appears. If 
 he files a pleading in the action it will be suf- 
 ficient. Such an appearance will be an ap- 
 pearance in court although the court be not 
 in session : Conklin v. Johnson, 34-266. 
 
 2. The written memorandum of appear- 
 ance in a particular cas^, held sufficient: 
 Shaw V. National State Bank, 49-179. 
 
 3. Time to plead: It is not error to enter 
 up a judgment by default on the day of the 
 filing of such appearance without giving time 
 to plead when no time is asked : Ibid. 
 
 4. Defendant is not entitled to a continu- 
 ance except for cause upon appearing to a 
 defective notice: Des Moines Branch, etc., 
 Bank v. Van, 13-523. 
 
 5. Where by statute defendant was given 
 in equity a longer time in which to answer 
 than that allowed in law cases, held, that he 
 would nevertheless be in default in failing 
 to enter an appearance on the return day, 
 although not required to answer on that day : 
 McKinley v. Betchtd, 13-561. 
 
APPEARANCE. 
 
 Ill 
 
 By attorney without authority. 
 
 e. By attorney without antliority: Where 
 it is shown that appearance by attorney is 
 made without authority, the case stands as if 
 there had been no appeai-ance, and if default 
 has been entered it is the same as a default 
 without service: Rice v. Griffith, 9-539; 
 Macomber v. Peck, 39-351. 
 
 7. Such a judgment is a nullity, and not 
 merely voidable, and even though the record 
 recites that jurisdiction has been acquired, u, 
 sale thereunder will paas no title to an inno- 
 cent purchaser: Harshey v. Blackmarr, 80- 
 161. 
 
 8. The defendant in an action upon a for- 
 eign judgment may deny the authority of 
 the attorney who appeared for him in the 
 action : Baltzell v. Nosier, 1-588. 
 
 0. In an action to set aside a judgment de- 
 fendant may show that an agent or attorney 
 who entered appearance for him, or accepted 
 service, had no authority to do so, for the 
 purpose of showing that the judgment was 
 without jurisdiction : Newcomb v. Deivey, 
 27-381. 
 
 10. The presumption is that an attorney 
 who appears for a party is authorized to do 
 so: Potter v. Parsons, 14-386; Harshey v. 
 Blackmarr, 80-161. 
 
 1 1 . But if the attorney is in fact not author- 
 ized, the party may be relieved against the 
 judgment by direct action in equity to set it 
 aside : Bryant v. Williams, 21-329. 
 
 12. The fact of an appearance by attorney 
 being established, it is for the party insisting 
 that the appearance was unauthorized and 
 the judgment void, to show that fact: Bond 
 V. Epley, 48-BOO. 
 
 13. Where a foreign judgment is resisted 
 on the ground that the court rendering it 
 had no authority, the fact that the attorneys 
 who appeared for defendant were not author- 
 ized to do so is immaterial, if it is shown that 
 defendant was duly served with notice, and 
 would have been precluded without an ap- 
 pearance : Woodward v. Willard, 33-542. 
 
 14. A party who adopts the acts of an at- 
 torney appearing for him, although such ap- 
 pearance is without authority, by paying him 
 for such services, thereby ratifies his acts and 
 is bound by the judgment rendered : Ryan v. 
 Doyle, 31-53. , 
 
 15. Where an appearance by attorney is 
 authorized, the court acquires jurisdiction of 
 
 defendant by reason of such appearance, and 
 any irregularity in the original notice, or 
 want of authority in the attorney to accept 
 service of such notice, is immaterial : Fan- 
 ning i\ Minnesota R. Co., 37-379. 
 
 16. Evidence in a, particular case of the 
 authority of an attorney to appear for a 
 party, held, sufScient to overcome the denial 
 of such authority on the part of the jjarty : 
 Ellis V. White, 61-644. 
 
 Further as to appearance by attorney, see 
 Attorneys, §g 24r-29, 39-50. 
 
 17. What suflicient appearance: Appear- 
 ance to object to the service of notice is a 
 general appearance to the action : McFarland 
 V. Lowry, 40-467. 
 
 18. An appearance to object to the original 
 notice because not properly stamped, and to 
 cross-examine plaintiff's witnesses, is an ap- 
 pearance to the action: Wilsey v. Maynard, 
 21-107. 
 
 19. Appearance to object to the sufficiency 
 of service upon a director of a corporation 
 defendant is sufftcient to give the court juris- 
 diction: Robertson V. EldoraR., etc., Co., 27- 
 245. 
 
 20. The rule that a special appearance to 
 object to the notice confers jurisdiction is 
 applicable in proceedings before a justice: 
 Church V. Crossman, 49-444. 
 
 21. If defendant makes appearance for any 
 purpose the notice has then served its pur- 
 pose and a second one will not be- required. 
 Being in court with timely notice, he is held 
 to answer unless he can show that by reason 
 of defect in the notice, such as failure to 
 specify the term at which he is required to 
 appear, he has not been able to prepare his 
 defense: Des Moines Branch, etc.. Bank v. 
 Van, 12-523. 
 
 22. Prior to the provisions of Code, § 2636, 
 that a special appearance to object to the 
 service of notice should constitute an appeai-- 
 ance, held, that a special appearance to object 
 to defect in the notice would not confer juris- 
 diction: Hodges v. Brett, 4 G. Gr., 345; 
 Milbourn v. Fonts, 4 G. Gr., 346; Weil v. 
 Lowenthal, 10-575; Converse v. Warren, 4- 
 158. 
 
 23. Under such statute, Iteld, also, that de- 
 fendant might appear so far as to object to 
 the jurisdiction of the court over the person 
 or subject-matter, but if he appeared by mo- 
 
118 
 
 APPEARANCE. 
 
 Does not confer jurisdiction. 
 
 tion or otherwise, seeking to call into action 
 any power of tlie court except such as per- 
 tains to its jurisdiction, it was an appearance : 
 Ulmer v. Hiatt, 4 G. Gr., 439; Stockdale v. 
 Buckingham, 11-45. 
 
 24. Thei'efore, held, that an application for 
 a continuance amounted to an appearance : 
 Ibid. ; Converse v. Warren, 4-158. 
 
 25. Held, also, that an appeai-ance by mo- 
 tion to suppress a deposition or quash an at- 
 tachment Qonstituted such appearance as to 
 give the court jurisdiction : Clark v. Black- 
 well, 4 G. Gr., 441. 
 
 26. An appearance by motion to change 
 the venue confers jurisdiction: Post v. 
 Brownell, 36-497. 
 
 27. So lield, also, as to a motion to dissolve 
 an attachment: Chittenden v. Hobbs, 9-417; 
 Wood V. Young, 38-103. 
 
 28. An appearance to a writ of attach- 
 ment constitutes a general appearance in 
 the action: Winchester v. Cox, 3 G. Gr., 
 575. 
 
 29. Appearance to set aside the sale of at- 
 tached property does not constitute an ap- 
 pearance to the action: Osborn v. Cloud, 
 21-338. 
 
 30. The filing of a demurrer by a non-resi- 
 dent defendant constitutes general appear- 
 ance, giving the court jurisdiction: Johnson 
 V. Tostevin, 60-46. 
 
 31. Appearance to cross-examine plaintiff's 
 witnesses, even though a general appearance 
 is disclaimed, is suflScient to give jurisdic- 
 tion : Bahn v. Oreer, 37-637. 
 
 32. Where intervenors, residents of an- 
 other county, voluntarily appeared in an ac- 
 tion and filed their petition and an amended 
 petition, field, that they were estopped from 
 saying that the court did not have jurisdic- 
 tion, and that they had no cause of action 
 which by proper amendment could be joined 
 with the pending action: Jack v. Des Moines 
 & Ft. D. B. Co., 49-627. 
 
 33. Appearance does not confer jurisdic- 
 tion: A want of notice is not waived by 
 appearance where notice is jurisdictional, ex- 
 cept where a subsequent notice would have 
 the efiEect to give jurisdiction: Spurrier v. 
 Wirtner, 48-486. 
 
 34. An' appearance does not waive the 
 right to have an action discontinued if the 
 petition is not filed by the time fixed in the 
 
 notice as provided in Code, g 2600 : Cibula v. 
 Pitt's Sons' M'f'g Co., 48-528. 
 
 35. An appearance after default, to liave 
 the default set aside as being rendered on in- 
 sufficient notice, is not such an appearance 
 as will cure the defect in entering default 
 without proper notice, such a case being dif- 
 ferent from an appearance before the default 
 to object to the insufficiency of the notice : 
 Boats V. Shules, 39-507. 
 
 36. An appearance by motion to set aside 
 a sheriff's sale is not an appearance to the 
 original action : Osborn v. Cloud, 31-338. 
 
 3 7. An appearance of a party to testify as 
 a witness is not an appearance to the action : 
 Nixon V. Downey, 43-78. 
 
 38. Where an action is by statute required 
 to be brought within a specified time, the ap- 
 pearance by defendant to such action brought 
 after the time specified, and the filing of 
 pleading by him setting out such facts, will 
 not constitute a waiver of the objection: 
 Jones, etc.. Lumber Co. v. Boggs, 63-589. 
 
 39. The filing of a pleading to the jurisdic- 
 tion of the court by defendant will not con- 
 fer jurisdiction upon the court : Elgin Caii- 
 ning Co. v. Atchison, etc., R. Co., 34 Fed. 
 Rep., 866. 
 
 40. Where a motion is made to set aside a 
 sheriff's sale in a court other than that in 
 which the action is pending, the act of de- 
 fendant in appearing and mo^?ing to strike 
 the motion from the files will not confer juris- 
 diction upon the court : White v. Hampton, 
 
 14r-66. 
 
 41. Where a judgment was rendered upon 
 service by publication, and subsequently de- 
 fendant therein filed a petition to set it 
 aside, and afterwards filed a motion in that 
 case for change of venue, held, that this did 
 not make the judgment effective as a judg- 
 ment in personam: Mayfleld v. Bennett, 48- 
 194. 
 
 Further as to the effect of appearance in 
 waiving defects in notice and irregularities 
 in the proceedings, see Jurisdiction,?! 16-19. 
 
 APPLICATION OF PAYMENTS. 
 
 See Payments. 
 
 APPRAISEMENT. 
 
 See Executions. 
 
ARBIIUATION. 
 
 119 
 
 Submission ■without action. 
 
 AKBITRATION. 
 
 1. Submission without iiction: Under 
 statute any " civil action" maybe submitted 
 to arbitration, and in this term is included 
 pverything except those cases which come 
 under the criminal jurisdiction of the court. 
 Therefore an equitable cause of action is sub- 
 ject to submission : Tomlinson v. Hammond, 
 '8-40. 
 
 2. The question whether or not an alleged 
 nuisance should be abated may be submitted 
 to arbitration without the submission of any 
 claim" for damages : Richards v. Holt, 61-529. 
 
 3. Method of submission: The subject- 
 matter of the award must be definitely speci- 
 fied : Woodward v. Atwater, 3-61. 
 
 i. Under the statutory provision as to sub- 
 mission, the arbitrators must be named in 
 the agreement in order that the parties may 
 have a judgment on the award : McKnight 
 V. MeCullough, 31-111. 
 
 5. If the submission is not acknowledged 
 as required by statute, the award cannot be 
 received as made under a statutory sub- 
 mission, although it may be good at common 
 law, and an action maintained thereon ; Fink 
 V. Fink, 8-313. 
 
 6. If submission is by order of court, an 
 acknowledgment is not necessary : Ibid. 
 
 7. The same degree of particularity is not 
 required in the acknowledgment of an agree- 
 ment of submission as is required in case 
 of an instrument conveying real property : 
 McKnight v. MeCullough, 31-111. 
 
 8. An agreement for submission must con- 
 tain a provision for judgment by some court 
 upon the award. Without this, it will not 
 be such a submission as contemplated, by 
 statute, though it may be binding at common 
 law as a settlement ; but, in such cases, the 
 result cannot be treated as an award under 
 the statute : Love v. Bums, 35-150; 
 
 9. Where submission of arbitration .be- 
 tween a school district and its treasurer cov- 
 ered "the money alleged to be due and 
 owing" by the treasurer of the district, held, 
 that such submission properly covered money 
 due for several years, including some for 
 which there ought to have been previous set- 
 tlement : District T'p v. Rankin, 70 . 
 
 10. The submission to arbitration in a par- 
 ticular case, held, to be sufficiently certain : 
 Donican v. Mulry, 69-583. 
 
 11. A party in interest cannot be bound 
 by an agreement to arbitrate made by other 
 parties in interest without his authority : 
 Sweney v. Davidson, 68-386. 
 
 12. A corporation may submit controver- 
 sies to arbitration although no such express 
 power is conferred by its charter. CourtH 
 are disposed to encourage settlement by ar- 
 bitration ; District T'p v. Rcmkin, 70 . 
 
 13. Common law submission: The statu- 
 tory provisions as to the method of submission . 
 etc., must be followed, if the parties deshe 
 judgment upon the award ; but a submission 
 and award may be good as at common law 
 between the parties, although these pro- 
 visions are not observed, as, for instance, 
 where the submission is in parol. An award 
 so made may be enforced by action thereon, 
 and may be set up as a defense to an action 
 brought for the subject-matter therein set- 
 tled : Conger v. Dean, 3-463 ; Foust v. Hast- 
 ings, 66-522. 
 
 14. Parties may bind themselves by an 
 agreement to submit a controversy to arbi- 
 tration in a manner different from that re- 
 quired by statute, and if the submission and 
 award are sufficiently certain to constitute a 
 bar to a subsequent action for the same 
 matter, the award will be upheld : Zook r. 
 Spray, 38-273. 
 
 15. A common law submission to arbitra- 
 tion is always con,strued most liberally and 
 with a view of effecting the purpose of the 
 parties to it, even though it does not comply 
 with the statutory requirements ; McKinnis 
 V. Freeman, 38-364. 
 
 16. To defeat a recovery on an award 
 under a common law submission, it is neces- 
 sary for defendant to impeach the award iu 
 some proper manner : Fousi v. Hastings, 66- 
 533. 
 
 17. Submission of pending suit: Incase 
 of submission by order of court, upon agree- 
 ment of parties, the pleadings constitute the 
 submission, and an agreement that judg- 
 ment may be rendered on the award is not 
 necessary. The court does not lose its con- 
 trol of the matter, and may render judg- 
 ment upon the award, or may set it aside, in 
 whole or in part: Schohm,er v. Lynch, 11- 
 461. 
 
 18. A submission of matters involved in a 
 pending suit may be made by agreement of 
 
120 
 
 ARBITRATION. 
 
 Action of arbitrators. 
 
 parties without an order of court : Higgins 
 V. Kinneady, 20-474. 
 
 19. The term "suit," used in the statutory 
 provision as to submitting pending proceed- 
 ings, is broader than the term " action," and 
 a special proceeding may, by order of court, 
 be submitted to arbitrators by agreement of 
 parties: Marion v. Oanby, 68-142. 
 
 20. Submission of a pending suit may be 
 made without any instrument in writing. 
 The statutory provision requiring a written 
 agreement, signed and aclcnowledged, is ap- 
 plicable to controversies in which no action 
 has been commenced : Ibid. 
 
 * 21. Action of arbitrators: Unless the sub- 
 mission provides otherwise, or a consent to 
 a majority award is in a proper manner 
 shown, all the arbitrators must concur in the 
 award : Ridliards v. Holt, 61-539. 
 
 22. Wliere an agreement for submission 
 provided that the award might be made by 
 the arbitrators or any two of them, and after 
 the award had been made and set aside, a 
 re-submission was ordered by the court, held, 
 that if, before such re-submission, one of the 
 arbitrators resigned, a submission for a find- 
 ing by the two remaining arbitrators would 
 not be valid, and that the agreement must be 
 construed as contemplating a submission to 
 three arbitrators : Cary v. Bailey, 55-60. 
 
 23. The finding of ai-bitrators upon a hear- 
 ing of which one party had no notice and at 
 which he was not present nor represented 
 will not be binding upon him, though tl- 
 instrument under which the arbitration is 
 had does not expressly provide that the par- 
 ties are to have notice or be heard : Dormoy 
 «'. Knower, 55-722. 
 
 24. The parties may, by agreement, deter- 
 mine the rules that shall govern the arbitra- 
 tors, as that the award of the majority shall 
 be binding : Thompson v. Blanchard, 2-44. 
 
 25. It need not appear affirmatively from 
 the retui'n that the witnesses were examined 
 under oath, nor, it seems, that the arbiti'a- 
 tors were sworn: Tomlinson v. Hammond, 
 8-40. 
 
 26. The arbitrators are not required, like 
 referees, to maie separate return of facts 
 found and conclusions of law thereon: 
 McKnight v. MeOullough. 31-11 1. 
 
 27. Although the award is not transmitted 
 to the court in the method required by 
 
 statute, yet it will be sufficient if it is de- 
 livered by one of the arbitrators to the clerk, 
 and all chance for prejudice from the irregu- 
 larity is expressly rebutted: Higgins v. Kin- 
 neady, 20-474. 
 
 28. A delivery of the award to the clerk in 
 person in vacation held sufficient : McKnight 
 V. McCullough, 31-111. 
 
 29. Where the affidavit of one of the ^bi- 
 ti-ators filed as required by statute did not give 
 the names of the parties to the controversy, 
 but by mistake gave the names of the other 
 arbitrators as the persons by whom he had 
 been appointed, etc., held, that the notary 
 taking such affidavit might be allowed to 
 testify that it was properly sworn to, and 
 that the names of the arbitrators ha|d been 
 inserted by mistake in place of the names of 
 the parties : Higgins v. Kinneady, 30-474. 
 
 30. Clerical defects working no prejudice 
 should not Invalidate the proceedings : Ibid. 
 
 31. An affidavit of arbitration made and 
 filed after the making of the award, and in 
 pursuance of agreement between the parties 
 that it might be so done, held sufficient : Og- 
 den V. Forney, 33-205. 
 
 32. The award ; sufllciency : Where the 
 award, under the submission of a contro- 
 versy as to the amount due to a municipal 
 coi-poration from its treasurer, stated the 
 amount of his deficiency, held, that while it 
 might have made a more detailed statement 
 of the account, the finding would not be 
 open to objection on the ground of uncer- 
 tainty : District T'p v. Rankin, 70 . 
 
 33. Validity; presumptions: Every pre- 
 sumption is in favor of the correctness of the 
 determination of the arbitrators : Tomlinson 
 V. Hammond, 8-40. 
 
 34. Where no mistake or injustice in the 
 award is shown, it will be upheld : Struthers 
 V. Clark, 40-508. 
 
 35. Impeachment: The award may be ira- 
 peached by proof that matters were con- 
 sidered by the arbitrators which were not 
 submitted, or that they have committed 
 material errors or mistakes to the prejudice 
 of either party, or have omitted to consider 
 matters submitted, or on account of fraud : 
 Thompson v. Blanchard, 2-44. 
 
 86. Proof is admissible to show that no 
 evidence was given to the arbitrators upon a 
 particular subject, the burden being upon 
 
ARBITRATION. 
 
 121 
 
 Power of court over. 
 
 the party seeking to impeach the arbitration 
 to satisfy the jury of any mistake of the 
 arbitrators, and also that he was prejudiced 
 thereby: Ibid. 
 
 3 7. The award may be impeached by show- 
 ing that the arbitrators did not pass upon 
 questions embraced in the submission and 
 essential to determine the rights of the 
 parties : Sharp v. Woodbury, 18-195 ; Missis- 
 sippi & M. R. Co. V. Sioux City <& St. P. R. 
 Co., 49-604. 
 
 38. In an action upon an award good at 
 common law, but not made under a statutory 
 submission, the fact that the arbitrators have 
 considered matters not submitted, or have 
 committed such mistakes as prejudice either 
 party, or have omitted to consider matters 
 which were submitted, may be shown for 
 the purpose of impeaching the award : Love 
 V. Burns, 35-150. 
 
 39. It is competent to introduce evidence 
 to show that one of the arbitrators intrusted 
 with the award for delivery to the court dis- 
 covered a mistake in it before delivery and 
 thereupon refused to deliver it: Shulte v. 
 Hennessy, 40-352. 
 
 40. Power of court over: As to the power 
 of a court over an award, there is a material 
 difference between the cases where the ref- 
 erence is under a statute provision or is made 
 by a rule of court, and those where it is 
 solely by an agreement of the parties, as at 
 common law. In the latter case the arbitra- 
 tors constitute a tribunal created by the par- 
 ties themselves, and the courts have but lit- 
 tle authority over them. Nearly all the 
 authority which does exist in regard to them 
 is in courts of equity : Burroughs v. David, 
 7-154. 
 
 41. Therefore, held, that allegations of 
 fraud of the opposite party in not making a 
 full and true exhibit of the matters relating 
 to the arbitration on the hearing before the 
 arbitrators could not be considered in an ac- 
 tion on the arbitration bond : Ibid. 
 
 42. Setting aside: To entitle a party to 
 have an award set aside on the ground of 
 mistake, he must not only clearly show a 
 mistake, and that he was prejudiced thereby, 
 but also that if it had not occurred the 
 award would have been different : Tomlinson 
 V. Tomlinson, 3-S75; Gorham v. Millard 
 50-554. 
 
 43. Although an award can only be set 
 aside for mistake, partiality, or fraud in the 
 arbitration, yet, to constitute such conduct, 
 evil intention is not a necessary ingredient : 
 and where one of the parties was informed 
 by one of the arbitrators that no testimony 
 upon a certain question would be received, 
 and afterwards such testimony was, received 
 on the other side, held, that the award should 
 be set aside : Sullivan v. Frink, 8-66. 
 
 44. An award should not be set aside for 
 newly discovered evidence which is merely 
 cumulative: McDanielsv. VanFosen, 11-195. 
 
 45. The action of arbitrators in awarding 
 costs to the successful party should not be 
 interfered with unless a clear abuse of .discre- 
 tion is shown : Ratliff v. Mann, 5-423. 
 
 46. The court cannot change the award 
 as to the taxation of costs. Its only author- 
 ity is to recommit if improper : Landreth r. 
 Bass, 13-606. 
 
 47. Eesubmissioii: Under statutory prcv 
 vision, held that the award should only be 
 rejected for want of jurisdiction in the arbi- 
 trators, but that it should be recommitted 
 for any reason which would justify the 
 granting of a new trial after verdict : Depew 
 V. Davis, 2 G. Gr., 260. 
 
 48. Upon recommitment the arbitrators 
 need not be again sworn, nor need the award 
 upon such recommitment show that they 
 were sworn in the first instance : Tomlinson 
 V. Hammond, 8-40. , 
 
 49. Disqualiftcation or misconduct of 
 arbitrators: Where a contract of lease pro- 
 vided that the rents should be determined by 
 an appraisal of the property by three per- 
 sons, of whom each should appoint one, and 
 the two thus chosen should select the third, 
 held, that such contract implied that the per- 
 sons to be selected should be indifferent be- 
 tween the parties, and that it appearing that 
 the appraiser appointed by one of the parties 
 was a brother and confidential agent of such 
 party, which fact was unknown to the other, 
 the appraisal was void: Pool v. Hennessy, 
 39-192. 
 
 50. Where it appeared that one of the arbi- 
 trators procured the signature of another by 
 representing that the other would sign it, 
 which was not done, and such arbitrator was 
 persistent in signing the award, although 
 counsel had not been heard in argument and 
 
122 
 
 ARBITRATION. 
 
 Setting aside in equity. 
 
 before the case was finally submitted, and 
 when it appeared that plaintiff desired to 
 introduce further evidence, and that such 
 arbitrator was on unfriendly terms with 
 plaintiff, held, that such arbitrator was not a 
 proper person to act, and that a resubmission 
 of the matter to the same arbitrators was 
 error. In such case the award should have 
 been rejected and the parties left to their 
 ordinary remedies: Brown v. Harper, 54- 
 546. 
 
 51. Setting aside inequity: Where anew 
 school district had been organized from a 
 I)art of the territory of an old one, and the 
 two boards, upon failure to agree to the divis- 
 ion of assets and liabilities, had appointed 
 arbitrators as required by statute in such 
 case (Code, § 1715), held, that a court of 
 equity might entertain jurisdiction to set 
 aside an award of su«h arbitrators for gi-oss 
 eiTors in computation: District T'p v. Dis- 
 trict T'p, 54-286. 
 
 52. Judgment: The court has no author- 
 ity to change the award by adding interest 
 thereto. It should enter judgment on the 
 award according to its terms, unless it ap- 
 l)eai's that the award is inequitable, or -that 
 the arbitrators abused their discretion in ap- 
 ])ortioning the costs: District T'p v. Inde- 
 pendent Dist., 60-141. 
 
 53. Where the agreement of submission 
 specifies the court wherein the award is 
 to be filed, this suflaciently indicates the 
 court wherein judgment is to be rendered: 
 Ibid. 
 
 54. The parties may agree that judgment 
 on the award shall be rendered by a justice 
 of the peace, and, if so, he will have jurisdic- 
 tion, provided the amount is such as to bring 
 the case within his cognizance: Van Horn 
 V. Bellar, 20-355 : King v. Hampton, 4 G. Gr. , 
 401 ; Whitis v. Cidver, 35-30. 
 
 55. Where it was provided in the agi-ee- 
 ment that judgment should be rendered " by 
 any court having jurisdiction," and judgment 
 was rendered by tlie district court of the 
 county where both parties resided, held, that 
 as such court was the only one which (at 
 that time) had jurisdiction, the agreement 
 was sufiicient to warrant such judgment: 
 McKnight v. McCullough, 21-111. 
 
 56. Appeal: An appeal will not lie from 
 the judgment of a justice of the peace on an 
 
 award. Any error committed by him in re- 
 jecting- or recommitting an award, or failure 
 to do so, may be reviewed on writ of error : 
 Whitis V. Culver, 35-30. 
 
 57. As the justice has no authority to try 
 the case upon its merits, but only to render 
 judgment on the award, or reject it and re- 
 commit it for a new hearing, no trial upon 
 the merits can be had on an appeal from the 
 action of the justice : Ibid. 
 
 58. An appeal will lie from an order re- 
 submitting a cause to arbitrators : Broion v. 
 Harper, 54-546. 
 
 59. The acts of the court, in sustaining a 
 motion to set aside the award, cannot be re- 
 viewed where the record does not show upon 
 what facts the court acted : Hamble v. Owen, 
 30-70. 
 
 60. Effect : Where an agreement for sub- 
 mission to ai-bitration provided that the 
 award should be made within thirty days, 
 and it was afterwards made and set aside by 
 mutual consent, and an action at law was 
 commenced after the expiration of the thirty 
 days, no further steps having been taken 
 under the submission by either party, held, 
 that the submission would not bar the action, 
 and it was not incumbent upon the party 
 bringing the action to first apply to have the 
 arbitrators act, or others appointed, and a 
 new award made : Simplot v. Simplot, 14r- 
 449. 
 
 61. An award cannot be relied upon, 
 unless pleaded: Dougherty v. Stewart, 43- 
 648. 
 
 62. Civil liability of arbitrators: Arbi- 
 trators act in a judicial capacity, and cannot 
 be held liable for damages for an award al- 
 leged to have been made fraudulently and 
 corruptly, if within their jurisdiction : Jones 
 V. Brown, 54r-74. , 
 
 63. Where an award was filed in defiance 
 of an injunction, held, that it must be pre- 
 sumed that it was disregarded and worked 
 no prejudice, and that an action for dam- 
 ages against the arbitrators would not lie: 
 Ibid. 
 
 64. The fact that the award is valueless 
 by reason of wilful misconduct of the 
 arbitrators, may be shown for the pur- 
 pose of defeating their claim for com- 
 pensation for services: Bever v. Brown, 
 56-565. 
 
ASSAULT — ASSIGNMENT, I. 
 
 123 
 
 Malice. — In general; what assignable. 
 
 ASSAULT. 
 
 As to the crime of Assault, or Assault and 
 Battery, or Assault with intent to commit 
 other offenses, see Ceiminal Law. 
 
 1. Malice: The averment that defendant 
 wilfully, wickedly and violently assaulted 
 plaintiff is sufficient to entitle plaintiff to re- 
 cover for malicious assault without express 
 allegations of malice : Mallett v. Beale, 66-70. 
 
 2. Aggrravation: The fact that an assault 
 and battery was committed in the hall of the 
 court-house near the court room, and under 
 such circumstances that the officers of the 
 court and the people in the room would soon 
 hear of the transaction, held, to be an aggra- 
 vation of the offense: Root v. Sturdivant, 
 70 . 
 
 3. Evidence: In a civil action for assault 
 and battery, where only compensatory dam- 
 ages are claimed, the record of a criminal 
 prosecution for the offense is not admissible 
 iu evidence : Lucas v. Flinn, 35-9. 
 
 4. Provocation : Although provoking and 
 insulting language do not constitute a de- 
 fense in a civil action for assault and battery, 
 yet such provocation may be shown as a 
 palUation for the acts and results of anger, 
 that is, iu mitigation of damages, but not as a 
 justification and defense. But a provocation 
 must be so recent and immediate as to in- 
 duce the presumption that the violence was 
 committed under the immediate influence of 
 passion thus excited. If the assault was 
 committed after time for reflection and cool- 
 ness, and under circumstances leading to the 
 presumption that it was in revenge, then the 
 party stands in the situation of an original tres- 
 passer, and the words applied to him will not 
 amount even to an extenuation : Ireland v. 
 Elliott, 5-478. 
 
 5. In a civil action for assault and battery, 
 evidence of immediate provocation, such as 
 happened at such time as to induce the pre- 
 sumption that the violence occurred under 
 the immediate and continuing influence of 
 the passion excited, is admissible to mitigate 
 the damages, but not to defeat the right of 
 recovery. The test is, whether the blood has 
 had time to cool. Evidence is not admissible 
 to establish the truth or falsity of the provo- 
 
 catory language or that plaintiff knew his 
 statements to be false: Thrall v. Knapp, 
 17-468. 
 
 6. Provocation given at the time of the as- 
 sault, or within a prior time so recent as to 
 justify the presumption that the offense waa 
 committed under the influence of the passion 
 excited thereby, may be shown in mitigation 
 of damages, but if time for reflection inter- 
 vened after the provocation, it will not ex- 
 tenuate the violence: Gronan v. Kukkuok, 
 59-18. 
 
 7. A provocation arising on a day prior to 
 the assault cannot be shown in mitigation, 
 for the law presumes sufficient time to have 
 intervened before the assauijt to allow the 
 passion to subside and reason to gain control 
 of the mind : Ibid. 
 
 8. The fact that a person, upon being 
 charged by another with making false state- 
 ments concerning him, denies the making of 
 such statements, wUl not be matter in miti- 
 gation of an assault thereupon committed by 
 the latter upon the former : Ibid. 
 
 9. Aiding and abetting: An instruction 
 that if the assault in question was made by 
 one of the defendants in pursuance of a pre- 
 vious intention, known to the other without 
 any objection on the part of the latter, and 
 the latter aided or abetted or encouraged the 
 other, then the one aiding and abetting was 
 liable for the assault, held correct : Ibid. 
 
 10. Military order: While a military 
 order may not excuse a wrongful act, it may 
 nevertheless be proper to be shown in evi- 
 dence as palliating such act, or to mitigate 
 damages : Carpenter v. Parker, 23-450. 
 
 ASSIGNMENT. 
 
 I. In general ; WHAT ASSIGNABLE. 
 
 II. Method of assignment. 
 III. Effect of assignment. 
 rv. Equitable assignments. 
 V. Assignments fob benefit of credit- 
 ors. 
 
 I. In genbkal; what assignable. 
 
 1. Statutory provisions:! An instrument 
 of guaranty is assignable : First Nat. Bank 
 V. Carpenter, 41-518, 521. 
 
 'Coae, §2084. Bonds, due-bills, and all instruments in writing, by which the maker promises to pay to 
 another, without words of negotiability, a sum o£ money, or by which he promises to pay a sum of money in 
 property or labor, or to pay or deliver any property or labor, or acknowledges any money or labor or property 
 
124 
 
 ASSIGNMENT, I, II. 
 
 In general. — Method. 
 
 2. So is an attachment bond : Moorman v. 
 Collier, 33-133. \ 
 
 3. So is a judgment : Burtis v. Cook, 16- 
 194; Bollinger V. Tarbell, 16-491. 
 
 4. A policy of insurance, the assignment 
 of which is expressly prohibited, is assign- 
 able after loss, the same as any other debt : 
 Walters v. Washington Ins. Co., 1-404; Mer- 
 shon V. National Ins. Co. , 34-87. 
 
 5. Although a mining lease makes no pro- 
 vision for assignment, it is nevertheless as- 
 signable: Steele v. Mills, 68-406. 
 
 6. An assignment of a lease carries with it 
 all the rights of the grantee, as well where 
 the words "or assigns " are omitted after the 
 grantee's name as where they are inserted : 
 Frederick v. Callahan, 40-311. 
 
 7. A claim for personal tort may be as- 
 signed : Weire ik Davenport, 11-49 ; Oray v. 
 MeCallister, 50-497 ; Vimont v. Chicago & N. 
 W. R. Co., 64-513. 
 
 8. It seems to have been otherwise held be- 
 fore the passage of statutory provisions relat- 
 ing to survival of actions : Taylor v. Oalland, 
 3 G. Gr., 17. 
 
 9. Rights vested ad rem and in re, possi- 
 bilities coupled with an interest, and claims 
 growing out of and adhering to property, 
 may pass by assignment : Ibid. 
 
 10. The statutory provisions do not limit 
 the assignability of claims to those specific- 
 ally mentioned : Weire v. Davenport, 11-49. 
 
 11. Action upon a right of action arising 
 from personal injury may be brought by the 
 assignee thereof in a state where the assign- 
 ment of such a cause of action is permitted 
 by statute, although the assignment is made 
 in a state where the common-law rule pro- 
 hibiting such assignment is still in force: 
 Vimont v. Chicago & N. W. R. Co., 69-296. 
 
 12. The statutory provisions as to assign- 
 ment do not render assignable a railway 
 
 ticket issued to a particular person by name 
 and expressly made non-transferable, and 
 another person attempting to ride upon such 
 ticket would be guilty of fraud: Way v. 
 Chicago, R. I. & P. R. Co., 64r-48. 
 
 13. In a particular case, held, that a cer- 
 tain contract did not import or contain a 
 promise on the part of one of the makers to 
 pay to the other any money or property, and 
 was therefore not assignable under the pro- 
 visions of Code, § 2084: Sales v. Kier, 50-699. 
 
 14. A time-check, drawn in the form of an 
 account against a railroad company in favor 
 of a contractor, signed by a subcontractor, 
 and indorsed, does not transfer to the indorsee 
 any claim against the contractor: Nash v. 
 Chicago, M. & St. P. R. Co., 63-49. 
 
 15. A license to keep a grocery store under 
 statute requiring such licenses, and provid- 
 ing that it should be issued only upon giving 
 bond, etc., held not assignable: Lewis v. 
 United States, Mor., 199. 
 
 As to assignment of causes of action and 
 survival thereof, see Actions, IV. 
 
 As to assignment of Judsments, see thai 
 title, III. 
 
 II. Method of assignment. 
 
 16. No particular form is necessary to 
 constitute an assignment of a debt. It need 
 not be in writing. If the intention be clearly 
 established, it is sufficient: Moore v. Lowrey, 
 35-336 ; McWilliams v. Webb, 32-577. 
 
 1 7. The assignment of a debt may be ver- 
 bal or in writing, and if in writing, and the 
 intent and contract of the parties is not fully 
 expressed therein, such intent may be shown 
 by parol evidence : Foster v. Trenary, 65-620. 
 
 18. The assignment of a contract or other 
 chose in action may be made in parol : Switzer 
 V. Smith, 35-369 ; Howe v. Jones, 57-130. 
 
 to be due, are assignable by iadorsemeut thereon or by other writing, and the assignee shall have a right o£ 
 action in his own name, subject to any defense or counter-claim which the maker or debtor had against any 
 assignor thereof before notice of his assignment. 
 
 § 3D86. When by the terms of an instrument its assignment is prohibited, an assignment of it shall neverthe- 
 less be valid, but the maker may avail hi Dself of any defense or counter-claim against the assignees, which he 
 may have against any assignor thereof before notice of the assignment thereof is given in writing to the maker 
 of such instrument. [Asamended'by 80 G. A., ch. 183, § 1.] 
 
 § 3037. An open accoimt of sums of money due on contract may be assigned, and the assignee will have the 
 right of action in his own name, but subject to the same defenses and counter-claims as the instruments men- 
 tioned in the preceding section, before notice of such assignment is given in writing by the assignee to the 
 debtor. [As amended by 80 G. A., ch. 183, § 2.] 
 
 § 8088. The assignor of any of the above instruments, not negotiable, shall be liable to the action of his as- 
 signee without notice. 
 
ASSIGNMENT, II, III. 
 
 125 
 
 Method.— Effect. 
 
 19. Where a party to a contract enters into 
 a partnership with others for the purpose of 
 performing the stipulations of the contract, 
 such transaction amounts to a parol assign- 
 ment of the contract to the firm : Switzer v. 
 Smith, 35-269. 
 
 20. Assent presumed: The weight of 
 authority is that the assent of an absent per- 
 son to a special assignment to him will be 
 presumed unless dissent be expressed, pro- 
 vided the assignment,is for a valuable con- 
 sideration and beneficial purpose : Randolph 
 Bank v. Armstrong, 11-515. 
 
 21. The delivery of an instrument con- 
 stituting an assignment is essential to give it 
 validity and effect. Therefore, where an 
 instrument assigning books of account was 
 executed for the benefit of a particular cred- 
 itor without his knowledge or request^ at the 
 suggestion of a friend, and a general assign- 
 ment was made, held, that the general assign- 
 ment destroyed the effect of the partial 
 assignment : Gage v. Parry, 69-605. 
 
 . 22. Acceptance : An assignment of an in- 
 terest in the amount due for a loss under an 
 insurance policy is not valid unless accepted 
 by assignee: Lamb v. Council Bluffs Ins. 
 Co., 70 . 
 
 23. Indemnity of creditor; assignment 
 by mail: If assignment be made by letter to 
 an absent creditor for the indemnity of 
 himself, or himself and others, and sent to 
 him by mail, it takes effect fr,om its date : 
 IhU. 
 
 24. Tlie assignment of an open account 
 under the statutory provision must be in 
 writing. An assignment by delivery or in 
 parol will not be sufficient: Andrews v. 
 Broimi, 1-154; Williams v. Soutter, 7-435, 
 448. 
 
 25. What snfBcient: A certain writing 
 held insufficient to constitute an assignment 
 of balance of purchase money on real prop- 
 erty : Oranfield v. Rowlings, 53-654. 
 
 26. The description of a claim in an as- 
 signment thereof held sufficiently specific 
 in a particular case: Weire v. Davenport 
 11-49. 
 
 27. An indorsement of a note without re- 
 course does not operate as an assignment of 
 the indorser's right of action against a prior 
 ijidorser for fraud practiced in the transfer 
 to him.; Watson v. Chesire, 18-303. 
 
 III. Effect of assignmen'J'. 
 
 28. Passes legal title: The assignment of 
 a personal tort vests the legal title in the as- 
 signee : Vimont v. Chicago & N. W. R. Co. , 
 64-518. 
 
 20. Under the statute, the assignment of 
 an open account for money due on contract 
 passes to the assignee the legal title to the 
 account assigned: Knadler v. Sharp, 36-233. 
 
 30. The assignor of an account loses all 
 legal interest therein : Piatt v. Hedge, 8-393. 
 
 31. While a person for whose benefit an 
 assignment is made may bring action to en- 
 force payment thereunder, yet in a particular 
 case, held, that the assignment was not 
 shown to have been made for the benefit of 
 the person attempting to enforce the same : 
 McBose V. Button, 55-728. 
 
 32. Champerty: The fact that the assignee 
 as a consideration for the assignment enters 
 into an agreement to repay to the assignor 
 the sum recovered in an action on the claim 
 assigned or a portion of such recovery, will 
 not be a defense to the action by the assignee 
 on such claim: Knadler v. Sharp, 36-232; 
 Vimont v. Chicago & N. W. R. Co., 64-513. 
 
 Further as to champerty, see Contuacts, 
 g§ 324^331 ; Attorneys, g§ 94-103. 
 
 33. Assignor not relieved from liabil- 
 ity under contract: The assignment of a 
 contract by one party thereto will not relieve 
 that party from his liability on such contract 
 in the absence of an agreement by the other 
 party to accept the assignee as debtor and 
 release the assignor : Martin v. Omdorff, 33- 
 504- 
 
 34. Assignment as security: Where an as- 
 signment absolute in form is shown to have 
 been intended only as security, it may also be 
 shown that it was intended as security for 
 costs and expenses of making collection, as 
 well as for the indebtedness : Crrow v. Crit- 
 tenden. 66-277. 
 
 35. Privitj : An assignor is not privy to 
 an adjudication binding upon his assignee to 
 which he is not made a party : McDonald v. 
 Gregory, 41-513. 
 
 3G. Evidence: Where one party to a con- 
 tract assents to an assignment thereof by the 
 other party, he will be precluded from after- 
 wards denying the assignee's rights therein 
 when the contract is attempted to be en- 
 forced. Therefore, evidence of acts tending 
 
126 
 
 ASSIGNMENT, III. 
 
 Effect. 
 
 to show his knowledge and assent is admis- 
 sible in proof of assignment: Crawford v. 
 Wolf, 39-567. 
 
 37. Stipulation against assignment: A 
 stipulation in an agreement to convey, that 
 no assignment of the premises by the vendor 
 should be valid unless indorsed on the agree- 
 ment and countersigned by the vendee or his 
 assignees, JieW, to be for the benefit of the 
 vendee and not enforceable by his assignees : 
 Wilson V. Beuter, 39-176. 
 
 38. How far assignee subject to connter- 
 claims or defenses: Where parties on the 
 one part in a contract, without notice of any 
 assignment, make an agi'eement with the 
 original parties on the other part for the 
 alteration of the terms of sucK contract, 
 such agreement wiUbe binding upon the as- 
 signees of the latter parties. The want of 
 such notice is a matter to be shown by the 
 parties claiming to have been relieved from 
 liability by the new contract, to be shown as 
 a matter of defense when their liability, 
 under the terms of the old contract, is sought 
 to be established by such assignees : Steele v. 
 Mills, 68-406. 
 
 39. The assignee of a judgment takes sub- 
 ject to equities against his assignor: Burtis 
 V. Cook, 16-i94: ; Ballinger V. Tarbell, 16-491. 
 
 40. The assignee of a non-negotiable note 
 is subject to any defense or counter-claim 
 which the maker had against the assignor 
 before notice of the assignment: Sayre v. 
 Wlieeler, 31-112. 
 
 il. The assignee of negotiable paper stands 
 in the same position as the assignee of a non- 
 negotiable instrument and is subject" to the 
 same defenses : Franklin v. Twogood, 18-515. 
 
 42. And therefore such assignee is subject 
 to any defense or set-off existing in favor of 
 the maker against the assignor at the time of 
 notice of assignment: Younker v. Martin, 
 18-143. 
 
 Further as to rights of assignee of negotia- 
 ble paper, see Bills and Notes, VII. 
 
 The bona fide assignee of a note and mort- 
 gage without notice of infirmities is not af- 
 fected by such infirmities, but holds the mort- 
 gage as he does the note, free therefrom : See 
 Mortgages, S§ 280-334. 
 
 An assignee of a mortgage which his as- 
 signor holds with notice of a prior unracorded 
 mortgage is not protected against such prior 
 
 mortgage, if the assignment is made after 
 the prior mortgage is recorded ; See Record- 
 ing Acts, § 115. 
 
 43. Defense to counter-claim: Where an 
 assignee sues upon a chose in action, and a 
 counter-claim is interposed thereto which 
 exists as against the assignor, the assignee 
 may introduce any defense to such counter- 
 claim which could have been set up by the 
 assignor himself : Miller v. Centerville, 57-640. 
 
 44. Defense or conntcr-claim against as- 
 signee of open account: Save for the statute 
 (Code, § 2087), an open account is not assign- 
 able, and it was therefore wholly immaterial 
 under the statute, as it stood prior to the 
 amendment (20 G. A., ch. 183, § 3), whether 
 a debtor had a defense against an assignor, 
 when he received notice of the assignment, 
 or whether such defense arose afterwards, 
 for the reason that the statute created no 
 right, by reason of notice. The point of time 
 fixed by the statute was the commencement 
 of suit. If at that time the debtor had a de- 
 fense against the assignor, he might inter- 
 pose it against the assignee : Wing v. Page, 
 62-87; Zugg v. Turner, 8-323; Reynolds r. 
 Martin, 51-834. 
 
 4.5. While the debtor under such statute 
 might voluntai'ily pay the assignor at any 
 time before action brought, and thus avoid 
 liability to the assignee, he was not under 
 obligation to do so, and the assignor could 
 not enforce such payment : Bailey v. Union 
 Pacific R. Co., 62-854. 
 
 46. The rights of parties under a mining 
 lease, providing for monthly payments of 
 royalty, do not constitute an open account 
 under the statutory provisions referring to 
 the assignment of such account: Steele v. 
 Mills, 68-406. 
 
 4T. Priority between assignments: If, 
 after an assignment of which the debtor has 
 no notice, another person obtains a second as- 
 signment, and first gives notice of his right, 
 he will be preferred to the first assignee: 
 Merchants', etc.. Bank v. Hewitt, 3-93. 
 
 48. Liability of assignor to assignee: The 
 statutory provision (Code, § 2088) does not 
 limit the action of an assignee, on an instrn- 
 ment not negotiable, to his inmiediate as- 
 signor: Hiise V. Hamblin, 39-501. 
 
 49. Assignment of judgment without re- 
 course: Where the owner of a judgment 
 
ASSIGNMENT, IV. 
 
 127 
 
 Equitable assignments. 
 
 transferred all his right, title and interest 
 therein " without recourse," held, that he did 
 not thereby warrant the validity of the judg- 
 ment, and that he could not be held liable 
 where it was shown that a portion of the 
 judgment appearing by the i-ecord to be due 
 had been paid to a former holder of such 
 judgment: Seofleldv. Moore, 31-241. 
 
 50. Where two parties being sureties for 
 another, and bound by a judgment against 
 them, received from him certain notes and 
 securities to be by them converted into 
 Inoney and applied on the judgment, which 
 transfer included a note described in their 
 receipt as being lost or naislaid, and one of 
 the sureties subsequently, by indorsement on 
 said receipt, transferred all his interest therein 
 to the other surety " without recoui-se," un- 
 der an agreement by which the latter under- 
 took to pay the judgment, it appearing that 
 the note described as being lost or mislaid 
 was never in fact delivered by the principal 
 under his assignment, but had been trans- 
 ferred by him prior thereto to a bona fide 
 purchaser, held, in an action by the latter 
 surety, after payment of the judgment, to 
 recover from the former surety on his assign- 
 ment, that the liability of the assignor was 
 that of a vendor rather than that of an in- 
 dorser, and his assignment without recourse 
 relieved him from liability by reason of the 
 failure of the title to the note : Wolcott v. 
 Timberinan, 28-454. 
 
 Further as to hability of assignors of notes 
 without indorsement, see Bills and Notes, 
 VI, c. 
 
 IV. Equitable assignments. 
 
 51. No particular form of words is re- 
 quired to create an equitable assignment of 
 a fund. Anything which evinces an intent 
 to do so is sufficient : Des Moines County v, 
 HinUey, 62-637. 
 
 52. An order for the whole of a fund 
 operates as an equitable assignment ' of the 
 fund, after notice to the drawee, although 
 not accepted. It becomes his duty in such 
 case to accept, and the order binds the fund 
 in his hands: McWilliams v. Webb, 32-577; 
 First Nat. Bank v. Dubuque 8. W. R. Co., 
 52-878. 
 
 53. A check drawn and accepted, payable 
 out of a particular fund, is an equitable 
 
 assignment of such portion of the fund : 
 Des Moines County v. Hinkley, 62-637. 
 
 54. While it may be that the custodian of 
 the fund may not be bound to accept the or- 
 der drawn on him for a part thereof, vet 
 such an assignment should be upheld in 
 equity: Ibid. 
 
 55. The drawing of checks upon funds in 
 the hands of drawee amounts to an equita- 
 ble assignment, valid against the claims of 
 a subsequent assignee for the benefit of 
 creditors : Roberts v. Corbin, 26-315. 
 
 56. A bin of exchange drawn on a gen- 
 eral or particular fund operates as an as- 
 signment to the payee of the debt due from 
 the drawee to the drawer, when the bill ha.s 
 been accepted by the drawee: First Nat. 
 Bank v. Dubuque S. W. R. Co., 52-378. 
 
 57. A bill of exchange drawn upon a, 
 general fvmd, but not accepted by the 
 drawee, does not operate as an assignment 
 of the fund, but is mere evidence of an as- 
 signment, and, with other circumstances 
 showing that such was the intention, will 
 vest in the holder an exclusive claim to the 
 fund, and bind it in the hands of the drawee 
 after notice : Ibid. 
 
 58. An order amounts to an equitable 
 assignment of the sums named therein, and 
 when notified thereof the drawee becomes 
 equitably bound to pay such sums when they 
 become due to the assignee. This will be 
 true without acceptance, and an acceptance 
 upon conditions, already existing between 
 drawer and drawee, will not alter the liabil- 
 ity : Cutler v. MoCormiek, 48-406. 
 
 59. Notice of an unaccepted order is suffi- 
 cient to bind the fund and constitute an 
 equitable assignment thereon: Manning v. 
 Mathews, 70 . 
 
 60. Where a bank held an order from a 
 contractor for the entire balance to be due 
 him on the completion of a contract for the 
 erection of a county building, and the con- 
 tractor gave to persons who had furnished 
 material for such building, checks for the 
 amounts due them, across the face of which 
 were written the words " to be paid as soon 
 as we settle with the county," and these 
 checks were marked by the bank " accepted, 
 payable whenever we have funds properly 
 applicable to this check, but subject to all 
 prior acceptances," held, that the transaction 
 
128 
 
 ASSIGNMENT, V. 
 
 For benefit of creditors. 
 
 constituted an equitable assignment by the 
 contractor to the creditor which Tvould take 
 priority over a subsequent attachment and 
 garnishment : Des Moines County v. Hinkley, 
 63-637. 
 
 61. Under the facts of a particular case, 
 held, that an order given by the contractor 
 upon a sum of money agreed by him to be 
 paid to a tliird person, was intended to be 
 paid out of the profits of the contract, and 
 would not take priority over the claims of 
 persons who had furnished material for the 
 work: Ibid. 
 
 62. Portion of promissory note: An 
 agreement to pay a certain portion of a 
 promissory note when collected amounts to 
 an equitable assignment of such portion: 
 Gallinger v. Pomeroy, 3 G. Gr., 178. 
 
 V. AsSiaNMENTS FOK BENEFIT OF 
 CKEDITOES. 
 
 63. Preferences: Under the common law, 
 in both England and America, a debtor in 
 failing circumstances might dispose of his 
 property in trust for the benefit of his ci-edit- 
 ors, and by such conveyance or otherwise 
 give preference in payment to one creditor 
 before another: Lampson v. Arnold, 19-479; 
 Oowles V. Ricketts, 1-582. 
 
 64. Statntory provision:' The language 
 of the statute clearly implies a trust and con- 
 templates the intervention of a trustee, and 
 the transfer of property by the debtor to the 
 creditor in payment of indebtedness is not 
 an assignment within the terms of such stat- 
 ute, and is not thereby rendered invalid, al- 
 though it is not for the benefit of all the 
 creditors : Cowles v. Ricketts, 1-582. 
 
 65. The statute does not make general 
 transfers of a debtor's property invalid, but 
 i-elates only to general assignments, and uses 
 the latter word in its technical sense : Lamp- 
 son V. Arnold, 19-479. 
 
 66. The debtor may, if he acts without 
 fraud, transfer property in payment of debts 
 to certain creditors, before making a general 
 assignment, and such transfer will be valid 
 even though made in contemplation of in- 
 solvency: Ibid.; Van Pattenv. Burr, 52-51%. 
 
 67. A sale of property to a creditor in pay- 
 ment of his debt is valid, although other 
 creditors remain unpaid : Hutchinson v. Wat- 
 kins, 17-475. 
 
 68. The statutory provision has no appli- 
 cation where a debtor, without fraud, sells 
 property to a creditor absolutely for a fixed 
 consideration, a portion of which is the dis- 
 charge of a debt due such creditor, and the 
 balance is money paid to the debtor and to 
 other oreditora in discharge of debts due 
 them: Johnson v. McGrew, 11-151. 
 
 69. An absolute sale in good faith for a 
 valuable consideration of the entire property 
 of an insolvent corporation will not be held 
 to be void as a general assignment : Buell v. 
 Buckingham, } 6-284. 
 
 70. A debtor may in good faith secure the 
 claims of a creditor at any time without ref- 
 erence to the claims of other creditors, and for 
 that purpose may give a chattel mortgage: 
 Fromme v. Jones, 18-474. 
 
 71. A trust deed not purporting to be a 
 general assignment, made to secure a present 
 loan of money, held not void : Whittaker v. 
 lAndley, 14-598. 
 
 72. The execution of a mortgage to one or 
 more creditors is not made void by the fact 
 that the mortgage is executed in contempla- 
 tion of insolvency and that the mortgagor 
 immediately afterwards executes a general 
 assignment : Lyon v. Mellvane, 34-9. 
 
 73. Therefore, held, that a mortgage of 
 property in this state was not rendered 
 invalid by the fact that a general assignment 
 of all the debtor's property was on the same 
 day executed in another state : Ibid. 
 
 74. A debtor may give all his property in 
 payment or security to one of his creditors 
 without violating the statutory provision, pro- 
 vided the transaction is free from fraud : Davis 
 V. Gibbon, 34-257 ; Farwell v. Howard, 26-381. 
 
 75. Knowledge by the creditor who is pre- 
 ferred that other creditors are left unprovided 
 for will not render the transaction void : 
 Cowles V. Ricketts, 1-582. 
 
 76. A partial assignment in good faith, 
 preferring certain creditors, is not void: 
 Gray v. McCallister, 50-497; Cole v. Deal- 
 ham, 13-551. 
 
 ' Code, § 8115. No general assignment of property by an insolvent, or in contemplation of insolvency, for 
 the benefit of creditors shall be valid, unless it be made for the benefit of all his creditors in proportion to the 
 amount of their respective claims. 
 
ASSIGNMENT, V. 
 
 1^9 
 
 For benefit of creditors. 
 
 77. If the assignment does not cover all 
 the insolvent's property it will not be a 
 general assignment, even though it pur- 
 ports be general: Meeker v. Sanders, 6- 
 61. 
 
 78. Where several instruments are exe- 
 cuted consecutively, each one subject to 
 those preceding, and together constituting a 
 disposition of all the debtor's property for 
 the benefit of his creditors, but not in pro- 
 portion to the amount of their claims, the 
 various instruments will be considered as 
 constituting one transaction and as therefore 
 void under the statute: Burrows v. Lehn- 
 dorff, 8-96. 
 
 79. So held, also, as to mortgages and a 
 general assignment executed at the same 
 time : Cole v. Dealham, 13-551 ; Van Patten 
 V. Burr, 52-518. 
 
 80. So ?Leld, also, as to an assignment and 
 a deed in fee . executed on the same day : 
 Moore v. Church, 70 . 
 
 81. To justify the court in finding that a 
 mortgage may be taken in connection with 
 some other instrument as constituting an as- 
 signment, it should appear that the mort- 
 gagor, at the time he made the mortgage, 
 had the intention to make an assignment: 
 Perry v. Vezina, 63-25. 
 
 82. The fact that mortgages and an instru- 
 ment purporting to be a general assignment 
 were all made on the same day, acknowl- 
 edged before the same oflicer, and delivered 
 to the recorder by the same person, held, not 
 sufficient to show that the mortgages were 
 a part of the assignment, it being proved by 
 positive evidence that the mortgages were 
 executed in the forenoon, when the party 
 did not contemplate making the assignment, 
 and that the purpose to do so was conceived 
 after noon, when the parties to whom the 
 mortgages were given had separated. To 
 render the instruments in such cases' void as 
 constituting a general assignment not for the 
 equal benefit of aU creditors, it must appear 
 that they were all parts of the same transac- 
 tion : Farwell v. Jones, 68-316. 
 
 83. Where chattel mortgages and assign- 
 ments to secure particular creditors are fol- 
 lowed by a general assignment, and it appears 
 that the instruments were executed with the 
 bona fide intention of securing such creditors,- 
 the law will not give to such acts a different 
 
 Vol. 1 — 9 
 
 character from that intended : Gage v. Parry, 
 69-605. 
 
 84. Therefore, where chattel mortgages 
 and the assignment of books of account were 
 executed to different creditors, and within an 
 hour after their execution a general assign- 
 ment was made, and it was shown that the 
 general assignment was not contemplated at 
 the time of the execution of the other instru- 
 ments, but that such general assignment was 
 executed when the debtor was advised that 
 the recording of the prior instruments would 
 probably cause a levying of attachment, 
 held, that the various instruments should be 
 deemed valid : Ibid, 
 
 85. Where a debtor conveyed a stock of mer- 
 chandise to his wife, who thereupon, and in 
 consideration thereof, executed a chattel 
 mortgage upon the same to secure the pay- 
 ment of her husband's indebtedness, in which 
 mortgage certain creditors were preferred to 
 others, held, that the transaction was in the 
 nature of a general assignment and there- 
 fore void : Van Horn v. Smith, 59-142. 
 
 86. Intention governs: The question 
 whether a conveyance by a debtor of all his 
 property for the benefit of a portion of his 
 creditors shall be regarded as an assignment 
 for the benefit of creditoi-s or a mortgage for 
 the security of particular debts, is to be de- 
 termined by the intention as it may be ascer- 
 tained from the cu-cumstances of the trans- 
 action. If the conveyance is to a trustee, 
 and the debtor intends to divest himself not 
 only of the title of the property, but of all 
 control over it, for the purpose of securing the 
 distribution of all his property among his 
 creditors or a portion of them, it is an assign- 
 ment for the benefit of creditors, no matter 
 what name the parties may have given it. 
 On the other hand, if the intention of the 
 debtor is merely to secure his debt to one or 
 more of his creditors, and the conveyance is 
 not intended as an absolute disposition of his 
 property, but he reserves to himself a right 
 therein, the conveyance will be treated as 
 void, even though the debtor is insolvent at 
 the time and it covers all his property, and 
 but a portion of his debts are secured by it : 
 CadwelVs Bank v. Crittenden, 66-237. 
 
 87. A chattel mortgage, though executed 
 by an insolvent person and covering aU hia 
 property, is not necessarily an assignment. 
 
130 
 
 ASSIGNMENT, V. 
 
 For benefit of creditors. 
 
 Whether it is be construed as such or not de- 
 pends upon the intent with which it is made. 
 It is not to be considered an assignment where 
 there is notliing^ to indicate that the mort- 
 gagor intended anything but the giving of 
 security : Kohn v. Clement, 58-589. 
 
 88. A chattel mortgage given to one cred- 
 itor to secure his claim will not operate as a 
 general assignment, it appearing that none 
 of the parties intended at the time that it 
 should have such an operation, and that it 
 does not include all of the property of the 
 debtor : Carson v. Byers, 67-606. 
 
 89. The execution of a mortgage by the 
 directors of a corporation to secure its in- 
 debtedness, although at a time when the 
 corporation had become insolvent, held, not 
 to constitute a general assignment for the 
 benefit of creditors so as to be void because 
 not for the benefit of all: Garrett v. Bur- 
 lington Plow Co., 70 . 
 
 90. The fact that in an instrument or in- 
 struments making general disposition of all 
 the debtor's property for the benefit of his 
 creditors, no trustee is appointed, will not pre- 
 vent its being an assignment and therefore 
 void as such, if not made for their benefit 
 proportionally : Burrows v. Lehndorff, 8-96. 
 
 91. Under the facts in a particular case, 
 held, that mortgages to creditors were not 
 shown to be intended as a full disposition of 
 the debtor's property and therefore were not 
 to be treated as an assignment: Jaffray v. 
 Qreenbaum, 64r493. 
 
 92. That a conveyance of real estate to one 
 creditor in payment or security of his debt 
 was executed by the debtor at the same time 
 he executed a general assignment for the 
 benefit of his creditors does not make the 
 two conveyances parts of one transaction: 
 Lampson v. Arnold, 19-479. 
 
 93. The fraudulent intent of the assignor 
 in a general assignment for the benefit of 
 creditors will render the assignment in- 
 valid, notwitlistanding the assignee was not 
 a party to such intent : Ibid. 
 
 94. In order to render void an instrument 
 of general assignment on the ground that it 
 was made to defraud creditors, it is not neces- 
 sary to show knowledge of the fraud on the 
 part of the assignee : Euble v. McDonald, 18- 
 493. 
 
 95. To render a sale to a creditor invalid, as 
 
 constituting a prefei'ence, it must appear not 
 only that the debtor was insolvent, but also 
 that the sale was with intent to give such 
 preference : Graves v. Alden, 13-573. 
 
 96. Effect of reservation: If it appears 
 that the debtor has kept back a portion of his 
 property not exempt from execution, the as- 
 signment will be treated as void although 
 sufficient in form : Moss v. Humphrey, 4 G. 
 Gr., 443. 
 
 97. No assignment is valid which contains 
 a reservation or condition for the benefit of 
 the assignor, such as requiring an absolute 
 discharge upon part payment or partial dis- 
 tribution: Williams v. Oartrell, 4 G. Gr., 287. 
 
 98. An assignment is not rendered invalid 
 by the fact that a reservation is therein made 
 as to property exempt from execution : Perry 
 V. Vezina, 63-35. 
 
 99. What suificieut in form : Where the 
 intention of the grantor can be ascertained 
 with reasonable certainty, the want of minute 
 accuracy of language and the disregard of 
 the usual forms wUl not render the instru- 
 ment void: Meeker v. Sanders, 6-61. 
 
 100. The fact that the deed contains no 
 schedule of the debts intended to be secured, 
 that no inventory is given of the property in- 
 tended to be conveyed, that the rights of the 
 creditors are not distinctly defined, and that 
 no specific directions are given to the trustee 
 as to the time within which the property is 
 to be converted into money, will not be suffi- 
 cient to render the deed void : Ibid. 
 
 101. What constitutes insolvency: The 
 fact that a party is unable to pay his debts 
 according to the usage of trade, or proceed in 
 business without general arrangement with 
 his creditors or indulgence by way of ex- 
 tension of time of payment, is sufficient to 
 constitute an insolvency, so that he may 
 rightfully make an assignment for the benefit 
 of creditors : ,Savery v. Spaulding, 8-239. 
 
 102. An assignment may be void as made 
 in contemplation of insolvency if it is not for 
 the benefit of all the creditors proportionally, 
 although the assignor was not at the time 
 actually insolvent: Loving v. Pairo, 10-282. 
 
 103. Law of the place: The validity of 
 assignments, so far as they affect real prop- 
 erty, must be judged by the law of the place 
 where the property is situated : Ibid. ; Mom'e 
 V. Church, 70 . 
 
ASSIGNMENT, V. 
 
 131 
 
 For benefit of creditors. 
 
 104. An assignment by one partner with- 
 out the consent of his copartner, who might 
 be consulted and is capable of giving assent 
 or dissent, is void and does not prevent at- 
 tachment by a creditor, although no proceed- 
 ings are taken by the partner not consenting 
 to set the assignment aside : Loeb v. Pierpoint, 
 58-469. 
 
 105. But if both partners have agreed to an 
 assignment, it will be valid though signed by 
 but one: Osborne v. Barge, 29 Fed. Rep., 725. 
 
 106. When void: A direction to the as- 
 signee to sell the property when convenient 
 and as soon as it can be done without ma- 
 terial sacrifice will not constitute conclusive 
 badge of fraud: Wooster v. Stanfield, 11- 
 128. 
 
 107. An assignment executed for the pay- 
 m.ent of debts " as fast as they become due," 
 held not to necessarily imply a payment 
 otherwise than pro rata and therefore not 
 void : Meeker v. Sanders, 6-61. 
 
 lOS. It seems that a provision in the as- 
 Bignment authorizing the assignee to sell for 
 credit will render it void, but authority to 
 dispose of property upon such terms as in 
 his judgment seem best will not have that 
 effect : Ibid. ; Berry v. Hay den, 7-469. 
 
 109. Nor will a provision authorizing the 
 assignee to compound with debtors render 
 the assignment void : Ibid. 
 
 110. Misconduct of assignee: The fact 
 that the assignee is oflEering to sell the goods 
 on credit or to exchange them will not ren- 
 der the conveyance void. No neglect of duty 
 by the assignee, and no misapplication of the 
 trust fund by him, can have that effect. The 
 remedy for such negligence or misfeasance 
 is by application to the.court : Meeker v. Sand- 
 ers, 6-61. 
 
 111. Failure of the assignee to report the 
 amount and condition of the assets will not 
 aflect the validity of the assignment : Savery 
 V. Spaulding, 8-239. 
 
 1 12. The fact that the grantor in a deed 
 of assignment is employed in the business by 
 the assignee in the capacity of clerk will not 
 in itself be evidence of fraud in making the 
 assignment: Ibid. 
 
 113. Delivery of the assignment to the 
 attorney of the assignor with direction to 
 file it for record is, in eflEect, delivery to the 
 assignee : American v. Frank, 63-202. 
 
 111. Tlie assent of the creditors to a gen- 
 eral assignment for their benefit will be pre- 
 sumed : Price v. Parker, 11-144. 
 
 115. The assent of creditors will not be 
 presumed to a conditional assignment : Will- 
 iams v. Oartrell, 4G. Gr., 387. 
 
 116. Where a debtor transferred a note to 
 a creditor with the understanding that he 
 should collect it and apply so much of the 
 proceeds as should be necessary for the satis- 
 faction of his own claim, and pay the bal- 
 ance upon another claim, held, that the pro- 
 vision in favor of the second creditor as to 
 the balance did not constitute an assignment 
 to him, he not being a party to the agree- 
 ment, and therefore the excess remained in 
 the hands of the first assignee liable to gar- 
 nishment by other creditors : Witter v. Little, 
 66-431. 
 
 117. Where certain accounts were by the 
 debtor assigned to a trustee to be collected 
 and applied pro rata to the payment of debts 
 due certain creditors, held, that the trustee 
 in such assignment was not subject to gar- 
 nishment at the suit of other creditors, and 
 that assent of the creditors of the assignor 
 would be presumed, they having been noti- 
 fied of the arrangement and having made no 
 objection thereto : Van Winkle v. Iowa Iron, 
 etc.. Fence Co., 56-245. 
 
 118. Who may be assignee: A creditor or 
 a co-debtor may be made assignee : Wooster 
 V. Stanfield, 11-138. 
 
 119. Acceptance by assignee: If an as- 
 signee take possession of property, it is evi- 
 dence of an acceptance, and he may bring 
 action in relation to such property even be- 
 fore filing an inventory and bond : Price v. 
 Parker, 11-144. 
 
 120. Inventory: Where the assignee filed 
 a valuation signed and sworn to by other dis- 
 interested persons, instead of by himself as 
 required by statute, held, that such inventory 
 should not be treated as a nullity nor as 
 authorizing the court to appoint another as- 
 signee. It may do so, only where the assignee 
 refuses to accept : Drain v. Mickel, 8-438. 
 
 121. The assignment is not void for want 
 of inventory: Wooster v. Stanfield, 11-138; 
 Price V. Parker, 11-144. 
 
 122. Kocording: The provision as to re- 
 cording the assignment is intended for the 
 protection of subsequent purchasers. Where 
 
132 
 
 ASSIGNMENT, V. 
 
 For benefit of creditors. 
 
 the assignment was duly executed and ac- 
 knowledged, and the assignee consented to 
 accept the trust before the levy of an at- 
 tachment, the failure to record it until thirty 
 seconds after the writ of attachment came 
 into the sheriff's hands, held not to render it 
 invalid : American v. Frank, 62-203. 
 
 123. What passes by assi^nmeut: Tlie 
 right of action for damages for the wrongful 
 suing out of an attachment upon property 
 subsequent to a general assignment thereof 
 is in the assignee, and not in the person malj- 
 ing the assignment: Bumsey v. Robinson, 
 58-335. 
 
 124. The equity of redemption of a mort- 
 gagor of personal property passes by an as- 
 signment : Oinible v. Ferguson, 58-414. 
 
 125. The assignee may, therefore, main- 
 tain an action for possession of personal 
 property of the assignor as against third par- 
 ties, although it is covered by a chattel mort- 
 gage conferring upon the mortgagee the 
 right of possession: Goldsmith v. Willson, 
 67-662. 
 
 126. By a general assignment, the prop- 
 erty of which the assignor is at the time pos- 
 sessed is passed to the assignee for the bene- 
 fit of creditors; therefore held, that such 
 general assignment would destroy a partial 
 assignment by an instrument intended to 
 secure a creditor and made prior to the ex- 
 ecution of the general assignment, but not 
 delivered until after general assignment: 
 Gage v. Parry, 69-605. 
 
 127. A deed of assignment headed "Gen- 
 eral Assignment," and deeding " all the lands 
 and all the personal property of every name 
 and nature whatsoever of the said party of 
 the first part, more particularly enumerated 
 and described in the schedule hereto annexed 
 and marked Schedule A," etc., is an assign- 
 ment of the property mentioned in the sched- 
 ule, merely, and does not include property 
 not mentioned therein. Hence, if any prop-: 
 erty of the assignor is omitted from the 
 schedule, the assignment is not a general but 
 a special one: Bock v. Perkins, 38 Fed. Eep., 
 123. 
 
 128. Eights of assignee : The assignee and 
 the creditors have no higher rights under the 
 assignment than the assignor had. The as- 
 signee cannot question a prior chattel mort- 
 gage on the ground that it was given to 
 
 secure an antecedent indebtedness : Meyer v. 
 Evans, 66-179. 
 
 129. The assignee may maintain an action 
 to set aside a fraudulent conveyance by his 
 assignor and subject the property thus con- 
 veyed to the payment of the creditors' claims. 
 The debtor who has made a fraudulent con- 
 veyance must be deemed, as to the creditors, 
 to have an interest in the property which 
 passes to the assignee: Schaller v. Wright, 
 70 . 
 
 130. While an assignee cannot, either at 
 the common law or under the statute, set 
 aside a conveyance made by his debtor on 
 the ground of fraud, he may defeat the en- 
 forcement of a mortgage against the realty 
 of the assignor, the title of which is in the 
 assignee, by showing that the moi-tgage is a 
 mere sham, given without consideration and 
 in fraud of creditors : Sandwich M'f'g Co. v. 
 Wright, 22 Fed. Eep., 631; Sumseyv. Town, 
 20 Fed. Rep., 558. 
 
 131. Under the Code a deed of assignment 
 for the benefit of creditors does not confer 
 upon the assignee the right to enforce special 
 equities on behalf of one or more creditors, so 
 as to deprive a creditor of his right to assert, 
 in his own name and right, such equity 
 against a third party: Bumsey v. Town, 30 
 Fed. Rep., 558. 
 
 132. But where the case does not involve 
 the simple question of the right of the as- 
 signee to recover property fraudulently con- 
 veyed away by his assignor, the assignee may 
 defeat the enforcement of a mortgage against 
 the realty the title to which is in the assignee, 
 by showing that the mortgage is a mere 
 sham given without consideration and in 
 fraud of creditors: Sandwich Mfg. Co. v. 
 Wright, 22 Fed. Rep., 631. 
 
 133. An assignee holding under a deed of 
 assignment cannot deny and defend against 
 the validity of chattel mortgages, which 
 though not recorded yet represent a vahd 
 subsisting indebtedness, in the interest of 
 general creditors. Such right is confined to 
 creditors having a lien upon the property, or 
 having a judgment at law with a right to 
 perfect their lien upon property they may 
 discover: Simon v. Openheimer, 20 Fed. Eep., 
 553. 
 
 134. Power to borrow money: If the as- 
 signee procures money for the purpose of 
 
ASSIGNMENT, V. 
 
 133 
 
 For benefit of creditors. 
 
 paying creditors by a pledge or mortgage of 
 the property assigned, the assignor has no 
 right to complain, provided, as between him 
 and the assignee, such a power under the as- 
 signment existed and the proceeds thereof 
 have been properly applied, and it was for 
 the intei-est of the assignor that the money 
 should be so procured instead of by a sale of 
 the property : Waterman v. Baldwin, 68-355. 
 
 136. Invalid mortgage foreclosure: 
 "Where defendants had foreclosed a chattel 
 mortgage, invalid as to the general creditors 
 of thfei mortgagor, who had made an assign- 
 ment for the benefit of his creditors, held, 
 that a decree in equity would be rendered de- 
 claring the mortgage void and estopping the 
 defendants from any prior right to the pro- 
 ceeds of the sale of the mortgaged property 
 at the suit of a creditor, who, without delay, 
 after the assignment, procured judgment at 
 law against the mortgagor, and brought his 
 action in equity against the mortgagees, al- 
 though the mortgagees would thereby be de- 
 prived of all security for their debt : Riimsey 
 V. Town, 30 Fed. Rep., 558. 
 
 130. Special security: A creditor under 
 a general assignment, who has a special se- 
 curity, may be required by the other credit- 
 ors to resort to this, and can only claim a 
 dividend upon the amount remaining un- 
 paid after exhausting the property upon 
 which he has such special lien: Wurtz v. 
 Hart, 15-515. 
 
 137. Security for costs: The provisions 
 as to requiring security for costs from a non- 
 resident plaintiff are not applicable in pro- 
 ceedings imder an assignment for the benefit 
 of creditors : Meyer v. Evans, 66-179. 
 
 138. Filing' of claims: Claims entitled to 
 share in the first dividends are only those 
 filed within three months from the jirst pub- 
 lication of notice: In re Assignment of Holt, 
 45-301. 
 
 139. Where the claim is not filed within 
 the requisite time after the publication of 
 notice and after the report of the assignee, 
 the creditor cannot participate in the benefits 
 of the assignment, and there is no provision 
 by which such a creditor can have equitable 
 relief from the bar thus created : MoKindley 
 V. Nourse, 67-118. 
 
 140. So held where the creditor, not pre- 
 senting nor seeking to obtain payment of his 
 
 claim through the assignee, sought to recover 
 against the assignee property sold by him to 
 the assignor before the assignment: Ibid. 
 
 141. Contesting claims: There being no 
 provision for pleadings in contesting claims, 
 further than exceptions by creditors ob- 
 jecting to claims of other creditors, it i3 
 quite probable that no further pleadings are 
 required by the statute: In re Assignment 
 of Guyer, 69-585. 
 
 142. Jurisdiction: The court having juris- 
 diction of proceedings in an assignment for 
 the benefit of creditors has authority to de- 
 termine priority among creditors, and a 
 party objecting to the right of the creditor 
 should make such objection in that pro- 
 ceeding. An order of the court as to the 
 jurisdiction of the property will be an adju- 
 dication, binding in a collateral proceeding 
 although erroneous: Perry v. Murray, 55- 
 416. 
 
 143. An original and independent action 
 in equity may be brought in the same or 
 another court for the purpose of determining 
 equities and priorities of the creditors to the 
 fund in court under the assignment. There- 
 fore, held, that where the validity of a chat- 
 tel mortgage was involved in determining 
 the rights of creditors, an independent ac- 
 tion with reference thereto might be brought 
 in another court and transferred to a federal 
 court, and that the adjudication of the fed- 
 eral court on such question, of which it had 
 jurisdiction, would be final : Knoxville Nat. 
 Bank v. Hanirick, 67-583. 
 
 144. The fact that a deed of assignment 
 has been executed and that the assignee gives 
 bond and flies the proper schedules and in- 
 ventory in the state court, does not ipso facto 
 confer upon that court the exclusive juris- 
 diction to hear and determine all. questions 
 existing between the creditors of the as- 
 signor: Rumsey v. Town, 30 Fed. Rep., 558. 
 
 145. Any one whose legal rights are af- 
 fected thereby may contest the validity of an 
 assignment, and to that end invoke the aid 
 of the state courts ; and if he is a citizen of 
 another state, and the amount exceeds five 
 hundred dollars, he may invoke the aid of 
 the United States circuit court: Fleisher v. 
 Greenwald, 30 Fed. Rep., 547. ^ 
 
 1 4(>. An order made by a state court in an' 
 action of replevin, wherein it was found that 
 
134 
 
 ASSIGNMENT, V — ASSOCIATIONS. 
 
 For benefit of creditors. — Power of majority. 
 
 several mortgages were valid Uens upon the 
 property, paramount to the assignment, and 
 entitled to be first paid out of the proceeds 
 realized from a stock of goods, held not an 
 adjudication binding on the complainants in 
 the federal court who were not parties to the 
 proceedings in the state court, whose right to 
 contest the validity of the mortgages was 
 not derived from the deed of assignment, 
 and was not represented by the assignee: 
 Ibid.; Rumsey v. Town, 20 Fed. Rep., 565. 
 
 147. An order made by a court having 
 control of assignment proceedings, approv- 
 ing payment of a mortgage debt by the as- 
 signee, is not an adjudication of the validity 
 of the mortgage as against creditors not ap- 
 pearing in the assignment proceedings, and 
 whose rights, as against the mortgage, are not 
 conferred by the deed of assignment : Rum- 
 sey v. Town, 20 Fed. Rep., 558. 
 
 148. Sale; dower: The sale of real prop- 
 erty by an assignee is a judicial sale, and 
 cuts oflE contingent right of dower in the 
 property: Stidger v. Evans, 64-91. 
 
 149. Preferences of taxes: A tax levied 
 upon personal property, at least if subsequent 
 to the assignment, should be paid by the 
 assignee, rather than allowed to become a 
 lien upon real property as against a mort- 
 gagee : Brooks v. Eighrney, 53-276. 
 
 150. It is the duty of the assignee, to the 
 extent of the property which comes into his 
 hands, to devote the same to the payment of 
 taxes, subject possibly to the payment of 
 expenses of executing the trust. No claim 
 for taxes is required to be filed, nor need any 
 demand be made. The assignee must, at his 
 peril, inquire whether the property or fund 
 in his hands is liable for assessments or levies 
 of taxes : Huiscamp v. Albert, 60-421. 
 
 151. Discharge not valid as to foreign 
 creditors: A discharge under a state insolv- 
 ent law will not discharge a debt due to a 
 citizen of another state, no matter where the 
 debt originated or was made payable, unless 
 the creditor appears and voluntarily submits 
 to the jurisdiction of the court by becoming 
 a party or claiming a dividend thereunder : 
 Haivley v. Hunt, 27-303. 
 
 152. Insolvent laws not superseded by 
 bHnkrnpt law: It has been held by our 
 supreme court as sound in pi-inciple, and in 
 the absence of an authoritative adjudication 
 
 by the United States supreme court, in accord- 
 ance with the weight of authority, that the 
 enactment of the federal bankrupt law did 
 not operate to nullify, supersede or suspend 
 the insolvent laws of the states: Reed v. 
 Taylor, 82-209. 
 
 ASSOCIATIONS. 
 
 1. Power of majority: Where property 
 is held by voluntary associations or corpora- 
 tions absolutely and without any limitation, 
 a majority may manage it as they please, ad- 
 mitting the minority to the same benefits as 
 themselves. But if there is any limitation, 
 express or implied, the rights of the minority 
 are protected by it, and they cannot be di- 
 vested of the right to have the property 
 appropriated to the trust under which it was 
 held : First Const. Presb. Church v. Congre- 
 gational Society, 28-567. 
 
 2. A majority of an unincorporated society 
 may direct and control the disposition of 
 its property upon due notice of the meeting 
 at which such disposition is made : Hubbard 
 V. German Catholic Congregation, 34-31. 
 
 3. In a particular case, held, that the an- 
 nouncement to the children at the Sunday 
 school and the ringing of a bell in the even- 
 ing was a suflicient notice of such meeting 
 of a church society : Ibid. 
 
 4. Power of trustees: Where the trustees 
 of a religious society were duly authorized 
 to execute a mortgage, btit such mortgage 
 was not executed by all of the trustees, held, 
 that although it might not be valid in law, 
 it would be carried out in a court of equity 
 for the purpose of preserving the rights of 
 the parties : Ibid. 
 
 5. Liability of members: Persons becom- 
 ing parties to an unincorporated organization 
 are liable for the debts they contract, and all 
 are included in such liability who consent to 
 the undertaking or subsequently ratify it; 
 Lewis V. Tilton, 64-220. 
 
 fi. Persons who enter into a contract on 
 behalf of such an alleged principal render 
 themselves personally liable : Ibid. 
 
 7. Action by: As a general rule the mem- 
 bers of a voluntary association should be 
 joined in a petition in an action in its behalf, 
 unless so numerous as to cause inconven- 
 ience. Therefore, held, that the action in his 
 own name by a person subscribing himself aa 
 
ASSOCIATIONS — ATTACHMENT, I. 
 
 135 
 
 Ecclesiastical. — When allowable. 
 
 elder of a church, in relation to property of 
 the church, was not properly brought: 
 McConnell v. Gardner, Mor., 273. 
 
 8. An unincorporated association for pecun- 
 iary profit cannot maintain suit in its own 
 name, nor can its members maintain such 
 suit in behalf of themselves and their fellow 
 members : Pipe v. Bateman, 1-369. 
 
 9. Ecclesiastical associations; judicial 
 control : The civil courts will not revise de- 
 cisions of churches or religious associations 
 upon ecclesiastical matters, but they will 
 interfere with such associations when rights 
 of property or civil rights are involved : Bird 
 V. St. Marie' x Church, 63-567. 
 
 10. Where the canons of a church pro- 
 vided that a rector canoiiically elected and 
 in charge could not be removed by the parish 
 against his will, a,nd it appeared that the 
 pastor had been properly elected by the 
 parish with a contract for salary at a certain 
 rate, held, that the parish could not, without 
 consent of the pastor, decrease the compen- 
 sation, and that the pastor might recover 
 judgment against the parish for salary at the 
 contract price : Ibid. 
 
 11. The courts wiU not interfere with the 
 action of a church in expelling a member for 
 alleged offenses against it, when no property 
 rights are involved: Sale v. First Regular 
 Baptist Church, 63-36. 
 
 13. Although the expulsion of a member 
 from a mutual benefit association might not 
 deprive him of the right to recover relief to 
 which he had become entitled before such 
 expulsion, yet where the expulsion was for 
 fraud in connection with the attempt to se- 
 cure such relief, held, that he was thereby 
 deprived of any benefit which he might 
 otherwise have claimed: Woolsey v. Inde- 
 pendent Order O. F. Lodge, 61-492. 
 
 As to trusts for religious purposes, see 
 Trusts. 
 
 ATTACHMENT. 
 
 I. When allowable; wheee com- 
 menced. 
 n. Petition. 
 
 a. Form; amendments. 
 
 b. Statement of grounds. 
 
 0. Statement of amount due. 
 d. Allowance of amount of property 
 to be attached. 
 
 III. The bond. 
 rv. The writ. 
 V. The levy and return. 
 VI. Rights acquired by levy; lien. 
 VII. Custody op the property. 
 VIII. Eelease or discharge; judgment; 
 appeal. 
 
 a. Release from levy. 
 
 b. Bond to discharge attachment. 
 0. Delivery bond. 
 
 d. Dissolution of attachment or re- 
 
 lease of property on motion. 
 
 e. Release upon motion of third 
 
 1 party, 
 t. Dissolution upon judgment; ap- 
 peal. 
 IS. Remedy for wrongfully suing out. 
 
 a. Form of action. 
 
 b. Wliat constitutes wrongful suing 
 
 out. 
 
 c. Pleading conditions and breach 
 
 of bond. 
 
 d. Action on bond. 
 
 e. Evidence of ivrongful suing out, 
 
 f. Measure of damages; attorneys? 
 
 fees; exemplary damages. 
 
 g. Judgment on bond. 
 
 Judgment in attachment commenced by 
 publication, see Jurisdiction, §§ 178-187. 
 
 I. "When allowable. 
 
 1. In equitable actions: An attachment 
 may issue in an equitable proceeding as weU 
 as in an action at law ; Baldwin v. Bu- 
 chanan, 10-377 ; Crouch v. Crouch, 9-369. 
 
 2. In an equitable action by one partner 
 against another to recover the amount due on 
 partnership account, plaintiff may have an 
 attachment, if there are proper grounds, al- 
 though he may also be entitled to a receiver : 
 Curry v. Allen, 55-318. 
 
 3. Against one of several defendants: In 
 an action against several defendants, the 
 plaintiff may have an attachment against 
 any as to whom there are proper grounds 
 therefor, without regard to whether there 
 are any grounds as to the others or not (over- 
 ruling Courrier v. Cleghorn, 3 G. Gr., 533; 
 Ogilvie v. Washburn, 4 G. Gr„ 548): Chitterir 
 den V. Hobbs, 9-417; Austin v. Burgett, 10- 
 302. 
 
136 
 
 ATTACHMENT, I, II, a. 
 
 When allowable. — The petition. 
 
 4. Where there are several defendants, the 
 property of a non-resident defendant may be 
 attached, it being shown that the resident 
 defendants are insolvent : Smith v. Coopers, 
 9-376. 
 
 By landlord against property of tenant 
 to enforce landlord's lien for rent, see Land- 
 lord AND Tenant, §g 125-133. 
 
 6. When action deemed commenced: Un- 
 der the statute allowing an attachment "at 
 the commencement or during the progress 
 of the proceeding," the action may be re- 
 garded as commenced as soon as the petition 
 is filed, and before notice is placed in the 
 hands of the sheriff, or served: Hagan v. 
 Surch, 8-309. 
 
 6. Where it appears that the original no- 
 tice and attachment were issued at the same 
 time, it will be considered that the suit was 
 commenced before the issuance of the attach- 
 ment: Nuckols V. Mitchell, 4 G. Gr., 433. 
 
 7. So, where the iiliug of petition and is- 
 suance of writ beai- the same date, it will be 
 presumed that the writ was issued after the 
 filing of the petition : Pitkins v. Boyd, 4 G. 
 Gr., 355. 
 
 As to what deemed commencement of ac- 
 tion in general, see Actions, III. 
 
 8. Eetnrn of "not found" unnecessary: 
 In case of attachment against a non-resident 
 it is not necessary that the return of ' ' not 
 found " be made before issuance of attach- 
 ment : Elliott V. Stevens, 10-418. 
 
 9. Where brought: Proceedings by attach- 
 ment against a resident are, by Code, § 2580, 
 required to be brought in the county of the 
 defendant's residence or the county in which 
 the contract is to be performed, and if they 
 are brought in another county the attach- 
 ment will be invalid and should be dismissed; 
 even if the case is, upon application of de- 
 fendant, transferred to the county of his 
 residence : Wasson v. Mellsap, 70 . 
 
 As to service by publication, in proceed- 
 ings against non-residents, see OEiaiNAL No- 
 tice. 
 
 li. The petition. 
 
 a. Form; amendment. 
 
 10. Separate petition: Even when the 
 attachment is asked at the beginning of the 
 action it is not improper to file a separate pe- 
 
 tition setting forth the grounds of the attach- 
 ment : Shapleigh v. JRoop, 6-524 ; but it is not 
 necessary: Van WinMe v. Stevens, 9-264; 
 Shaffer v. Sundwall, 33-579. 
 
 11. The attachment and the suit are dis- 
 tinct, and any irregularity in the former will 
 not affect the latter: Elliott v. Mitchell, 3 G. 
 Gr., 287. 
 
 12. Amount due: If the amount due is 
 stated in the body of the petition asking 
 judgment, it need not be repeated in that 
 part asking the writ. It is not essential that 
 the portion of the petition asking an attach- 
 ment be separate and distinct from that in the 
 main cause and contain all the essential aver- 
 ments: Shaffer V. Sundwall, 33-579. 
 
 13. Verification by affidavit: Under the 
 statutory provision that "the petition which 
 asks an attacliment must in all cases be 
 sworn to " (Code, § 3951), the verification of 
 the petition may be by a person other than 
 the plaintiff without any peculiar means of 
 knowledge as to the facts being shown : Pit- 
 kins V. Boyd, 4 G. Gr., 255. 
 
 14. But it is desirable that the means of 
 knowledge of such party be shown: Bates 
 V. Robinson, 8-318. 
 
 15. Affidavit by plaintiff's attorney, stating 
 a knowledge on his part of the facts, held 
 sufficient : Chittenden v. Hohhs, 9-417. 
 
 16. If the petition is actually sworn to, 
 the fact that the jurat is not signed by the 
 officer administering the oath will not invali- 
 date subsequent proceedings : Cooh v. Jenk- 
 ins, 30-453. ' 
 
 1 7. Attachment must be iisked for in the 
 petition: Dawson v. Jewett, 4 G. Gr., 157; 
 Queen v. Griffith, 4 G. Gr., 113. 
 
 18. Amendments to petition are allowable 
 which do not interpose any new cause of 
 action and will not affect the attachment: 
 McCam v. Rivers, 7-404. 
 
 19. But that an amended petition shall 
 support an attachment already issued, the 
 petition as amended must state the cause to 
 have existed at the date of the attachment: 
 Wadsworth v. Cheeny, 10-257; Crouch v. 
 Crouch, 9-269 ; Bundy v. MoKee, 29-253. 
 
 20. If the amendment changes the cause of 
 action, and under the petition as amended 
 no cause of attachment appears to have ex- 
 isted at the time of the issuance of the at- 
 tachment, it will be deemed to have been 
 
ATTACHMENT, II, a, b. 
 
 137 
 
 Form ; amendment. — Statement of grounds. 
 
 wrongfully sued out: Young v. Broadbent, 
 33-539. 
 
 21. Amendments to the petition setting 
 up no new ground of attachment, but merely 
 making the original more specific, and to the 
 bond as to the amount of the penalty, should 
 be allowed : Oourley v. Carmody, 23-213. 
 
 22. Veriflcatioii of amendment: Where 
 the amendment does not change the ground 
 of the attachment nor introduce a new cause 
 of action, nor claim a gi-eater amount, but is 
 merely a new statement of the same cause, it 
 need not be verified: HamiU v. Phenioie, 
 9-525. 
 
 23. Defective allidavit of verification to 
 the petition may be cured by amendment : 
 Bunn V. Pritehard, 6-56; Langicorthy v. 
 Waters, 11-432; Shaffer v. fifMndtwaZZ, 33-579 ; 
 Lowenstein v. Monroe, 52-231. And see Code, 
 §248. 
 
 24. Effect of .imendment: A party is not 
 to be prejudiced by any defects which are 
 corrected by amendment: Wadsworth v. 
 Cheeney, 13-576. 
 
 25. And the attachment should not be dis- 
 solved for such a defect after its correction : 
 Oourley v. Carmody, 23-212. 
 
 26. Where, after the filing of a motion to 
 quash for a defect in the affidavit, such de- 
 fect is cured by amendment, the motion 
 should not be sustained: Stout v. Folger, 
 84-71. 
 
 27. So, where the action of the lower court 
 in overruling a motion to quash the attach- 
 ment for a defect in the affidavit was reversed 
 on appeal and the cause remanded, and 
 thereupon the defect was cured by amend- 
 ment, held, that the proceedings under the 
 attachment were thereby rendered valid: 
 Stadler v. Parmlee, 14-175. 
 
 28. Leave to_ amend: Where it does not 
 appear that plaintiff asked for leave to amend, 
 to cure a defect raised by motion to dissolve 
 the attachment, it is not necessary that it 
 appear from the record that leave to amend 
 was given : Pittman v. Searcey, 8-353. 
 
 b. Statement of grounds. 
 
 29. Following statute: In alleging the 
 cause of attachment the petition need not 
 follow the exact language of the statute. It 
 is sufficient if there is a substantial compli- 
 
 ance with its provisions, the requisite facts 
 being clearly stated: Drake v. Hager, 10- 
 556; Crew v. McClung, 4 G. Gr., 153. 
 
 30. Alternative: Two or more causes for 
 attachment may be stated, but they cannot 
 be stated in the alternative : Stacy v. Stichr- 
 ton, 9-399. And see Code, g 3021. 
 
 31. Non-residence: The allegation that 
 defendant is " not now an inhabitant of this 
 state" is equivalent to saying that he is a 
 " non-resideirt of the state:" Wiltse v. 
 Stearns, 13-283. 
 
 32. Removing property out of state: To 
 justify an attachment on the ground that 
 defendant is about to remove his property 
 out of the state, etc., the contemplated re- 
 moval must be of a permanent character, 
 and not merely temporary. Where defend- 
 ant's property was a team which he contem- 
 plated taking out of the state for a journey 
 of four or five months with intention of 
 returning, held, that there was no ground 
 for an attachment: Warder v. Thrilkeld, 
 52-134. 
 
 33. Where attachment is asked on that 
 ground, an intention to defraud creditors 
 need not be averred ; Branch of State Bank 
 V. White, 12-141 ; Sherrill v. Fay, 14-293. 
 
 34. Actual fraud need not exist in such 
 oases. (OverruUng Lockard v. Eaton, 3 G. 
 Gr., 543; Bowen v. Gilkison, 7-503; Pittman 
 V. Searcey, 8-353, all' decided under the Cod© 
 of 1851): Mingus v. McLeod, 25-452. 
 
 35. Disposal of property with intent to 
 defraud creditors is not shown by allegation 
 of disposal " with intent to delay and hinder 
 creditors and prevent and defeat them from 
 the collection of their claims." An intention 
 to defraud must be alleged to bring the case 
 within that ground : Torhert v. Tracy, 12-30. 
 
 36. Evidence of intent to defraud: Where 
 the ground is that defendant is about to dis- 
 pose of liis property with intent to defraud 
 his creditors, the allegation should be predi- 
 cated upon some indication by word or act 
 warranting a reasonable belief that defend- 
 ant is about to defraud his creditors. Evi- 
 dence that ten years previously he put his 
 property out of his hands to defraud creditors 
 would not be relevant on the issue as to the 
 existence of such intent. (Decided under a 
 former statute allowing the truth of the 
 averment of the gx-ound of the attachment 
 
138 
 
 ATTACHiMENT, II, b. 
 
 Statement of grounds. 
 
 to be put in issue by plea) : Lewis v. Ken- 
 nedy, 3G. Gr., 57. 
 
 37. Contemplated remoTal of property 
 
 from state is not ground for attachment un- 
 less it also appears that sufficient is not left 
 to pay debts : State v. Morris, 50-203. 
 
 38. Absconding: That defendant is ab- 
 senting himself from the state does not alone 
 constitute an absconding : Ibid. 
 
 39. The fact that defendant appears to the 
 action does not disprove the allegation that 
 he has absconded : Phillips v. Orr, 11-283. 
 
 40. Contemplated removal of person: To 
 make a contemplated removal and refusal to 
 pay or secure the debt a ground for attach- 
 ment, it must appear that defendant v^as not 
 vrilling either to pay or secure : Drummond 
 V. Stewart, 8-341. 
 
 41. Inconsistent grounds: The allegation, 
 in stating one ground, that defendant has 
 property not exempt from execution and re- 
 fuses to pay or secure, and in stating an- 
 other, that he has disposed of all his property 
 with intent to defraud creditors, are not nec- 
 essarily inconsistent and contradictory : Hol- 
 loivay V. Herryford, 9-353. 
 
 42. For unmatured indebtedness: A 
 surety upon indebtedness not yet due, and 
 which he has not paid, cannot have an at- 
 tachment against the principal, under the 
 provisions for attachment in case of unma- 
 tured indebtedness (Code, §2956): Dennison 
 V. Soper, 33-183. 
 
 43. To bring a case within these provis- 
 ions, a disposition or removal of the property 
 must be with intent to defraud: Pride v. 
 Wormwood, 27-257. 
 
 44. That defendant is about to dispose of 
 his property with intent to defraud his cred- 
 itors will bring a case within these provis- 
 ions, without alleging a refusal to make any 
 arrangements for securing the indebtedness : 
 Danforth v. Carter, 1-546. 
 
 45. In an action under these provisions 
 in regard to, unmatured indebtedness, the de- 
 fense that the debt is not due cannot be set 
 .tip : Churchill v. Fulliam, 8-45. 
 
 46. Where suit was brought for a debt as 
 due, and attachment procured, and defendant 
 denied the indebtedness on the ground that 
 it was not mature, and asked damages for 
 wrongful suing out of the attachment, held, 
 that it was proper to give him judgment for 
 
 such damages, without giving plaintiff judg- 
 ment for the amount of the claim : Wether- 
 ell V. Sprigley, 43-41. 
 
 47. For indebtedness dne the state: It 
 is evidently contemplated that an attachment 
 shall issue for indebtedness due the state from 
 a debtor who has refused to pay or secure 
 the same, only when demand has been made 
 upon the debtor for payment or security and 
 is refused ; and that defendant is absent from 
 the state, so that demand cannot be made 
 upon him, does not change the rule : State v. 
 Morris, 50-203. 
 
 48. "Property" need not be deflned; 
 Under a statutory provision authorizing an 
 attachment where defendant had "property, 
 goods or money," etc., which he refused to 
 give in payment or security of the debt, 
 held, that an allegation that he had " prop- 
 erty " was sufficiently specific : Bates v. Rob- 
 inson, 8-318. 
 
 49. Specific attachment: Under particular 
 facts, held, that no ground appeai-ed for a 
 specific attachment as provided for by stat- 
 ute : Allerton v. Eldridge, 56-709. 
 
 60. Sufficiency of grounds not raised by 
 demurrer: The averments of the grounds of 
 attachment are not a part of the petition in 
 the sense that they can be demurred to. If 
 they are insufficient, a motion to dissolve the 
 attachment is the proper remedy ; if incon- 
 sistent grounds are alleged, the plaintiff may, 
 on motion, be required to elect between them: 
 Holloway v. Herryford, 9-853 ; Hunt v.. Col- 
 lins, 4r-56. 
 
 51. Truth of grounds of attachment not 
 in issue: No issue can be joined in the prin- 
 cipal suit on the averment of facts constitut- 
 ing the ground for the attachment. The 
 party injiu-ed by the wrongful suing out of 
 the writ has no other remedy than by an ac- 
 tion on the bond, unless in cases where an 
 action of trespass would lie: Veiths v. 
 Hagge, 8-163, 192 ; Churchill v. Fulliam, 8- 
 45; Saekett v. Partridge, 4-416; Sample v. 
 Griffith, 5-376; Berry v. Gravel, 11-135; 
 McLaren v. Hall, 26-397. 
 
 52. Therefore an answer raising such an 
 issue may be stricken from the files on mo- 
 tion : Burrows v. Lehndorff, 8-96. 
 
 53. Much less can such an issue be made 
 by an entire stranger to the suit : Whipple v. 
 Cass, 8-136. 
 
ATTACHMENT, II, c, d. 
 
 139 
 
 Amount due. — Property to be attached. 
 
 54. Truth of grounds cannot be raised by 
 motion to dissolve: A motion to dissolve tlie 
 attachment, based upon affidavits that the 
 cause for attachment, as stated in the peti- 
 tion, is not true, cannot be sustained. No 
 issue can be joined as to the facts stated as 
 cause for the attachment. The only remedy 
 is on the bond : Sturman v. Stone, 31-115. 
 
 c. Statement of amount due. 
 
 55. In action on contract: A writ of 
 attachment should be quashed when the peti- 
 tion therefor founded on contract does not 
 state that something is due, and as nearly as 
 practicable the amount due : BlaMey v. Bird, 
 13-601 ; Kelley v. Donnelly, 29-70. 
 
 56. It is the petition, and not the affidavit 
 attached to it, which is to state the amount 
 claimed to be due : Chittenden v. Hobbs, 9- 
 417. 
 
 5 7. It is not necessary that the portion of 
 the petition asking the attachment state the 
 amount due when that amount is stated in 
 the portion of the petition asking judgment : 
 Shaffer v. Sundwall, 33-579. 
 
 58. But where the petition stating the 
 cause of action on contract is not under oath, 
 the sworn petition asking an attachment 
 must state the amount due : Blakley v. Bird, 
 12-601. 
 
 59. False statement as to amount due: 
 That the amount sworn to as due is uncon- 
 scionable and unreasonable is no ground for 
 dissolving an attachment, althoiigh it may 
 render plaintiff liable on his attachment 
 bond : Lord v. Gaddis, 6-57. 
 
 60. In actions lor tort: When the plaint- 
 iff's claim is not founded on contract, he is 
 not required to state in his petition the 
 amount due : Sherrill v. Fay, 14-892. 
 
 61. Nor is it required in such actions, as it 
 is in actions on contract, that the amount 
 sued for must exceed five dollars to author- 
 ize an attachment : Weller v. Hawes, 49-45. 
 
 d. Allowance of amount of property 
 to he altaohed. 
 
 62. Not necessary in actions on contract: 
 
 Where plaintiff's right of action arises out of 
 contract, no allowance of the amount for 
 which attachment may issue is necessary, 
 although the case is one in which, under the 
 
 common law rules of pleading, an action in 
 tort might have been brought: MoQinn v. 
 Butler, 31-160. 
 
 6.3. Unliquidated damages; penal bond: 
 If the action is on contract and not in tort, no 
 allowance is necessary even though the dam- 
 ages are unliquidated. The distinction in- 
 tended by the statute is that between actions 
 arising ex contractu and those arising ex de- 
 licto. Therefore, no allowance is necessary 
 in an action on a penal bond : Lord v. Gad- 
 dis, 6-57. 
 
 64. Action on judgment: Where a judg- 
 ment has been recovered for a tort, the 
 cause of action on such judgment is no longer 
 ex delicto but is ex contractu, and the amount 
 due being properly stated, no allowance is re- 
 quired : Johnson v. Butler, 2-535. 
 
 65. Action to recover penalty: No allow- 
 ance is required in an action to recover a 
 liquidated sum as a forfeiture provided by a 
 penal statute or ordinance, the remedy being 
 by action of debt : Decorah v. Dunston, 34r- 
 360. 
 
 66. Action for false representations: An 
 action for damages for faJse representations 
 as to the soundness of sheep sold, held, to be 
 an action founded on contract, so that no 
 allowance was required: Swan v. Smith, 
 26-87. 
 
 67. In actions for tort: An attachment 
 under any circumstances in actions for tort 
 is not allowed in many of the states; and 
 never, unless under some restrictions other 
 than those provided in actions on contract ; 
 and hence, under our Code, an allowance is 
 required of the amount of property to be at- 
 tached which is not required in actions on 
 contract : Raver v. Webster, 3-502. 
 
 68. Conversion: Action for tortious con- 
 version of property still in possession of de- 
 fendant cannot be considered as on contract, 
 and an allowance is necessary : Moses v. Ar- 
 nold, 43-187. 
 
 69. Misrepresentation in s.ile of land: 
 In an action for damages sustained by reason 
 of misrepresentations as to the quality of 
 land sold, not being founded upon a written 
 contract, and the damages being unliqui- 
 dated, there must-be an allowance: Gates v. 
 Reynolds, 13-1. (This case is not consistent 
 with the later one of Swan v. Smith, 26-87 ; 
 supra, % 66. The statute does not, and did 
 
140 
 
 ATTACHMENT, III, IV. 
 
 The bond.— The writ. 
 
 not when the above case was decided, require 
 the action to be on written contract to render 
 an allowance unnecessary.) 
 
 70. Allowance relating back ; amend- 
 ment: Where a writ of attachment, in an 
 action not founded on contract, issues and is 
 levied, without an allowance being made as 
 required by statute, and a motion is made to 
 quash the writ on that ground, the coui't 
 may then make an allowance, to relate back, 
 as between the pai'ties, to the issuance of the 
 writ, and fix the additional amount of prop- 
 erty which may be levied on : Magoon v. CHl- 
 lett, 54-54. 
 
 71. Allowance to be by jndge: The allow- 
 ance is to be made by a judge acting in his 
 individual capacity and need not be attested 
 by the seal of his court : Sherrill v. Fay, 14- 
 293. 
 
 72. But it would seem that an allowance 
 by the judge of the court in which the action 
 is pending, while sitting as the court and not 
 as a judge individually, would be sufficient : 
 Magoon v. Oillett, 54^54. 
 
 73. Subsequent allowance: Upon a mo- 
 tion to discharge attached property on the 
 ground that there has been no allowance 
 when required, the court may make an order 
 as to how much property shall be held: Ibid. 
 
 III. The bond. 
 
 74. The amount of the bond is to be double 
 the value of the property which the sheriff 
 may attach, or three times the amount sworn 
 to by plaintiff. It is not sufficient that it be 
 double the amount sworn to, or double the 
 value of the property which is actually at- 
 tached: Churchill v. Fulliam, 8-45; Hamill 
 V. Phenicie, 9-525; Van Winkle v. Stevens, 
 9-264; Hamble v. Owen, 30-70. 
 
 75. Surety: One surety is sufficient if his 
 pecuniary responsibility satisfies the require- 
 ments of the law : Elliott v. Stevens, 10-418. 
 
 76. Signature of plaintiff is not essential : 
 Pitkins V. Boyd, 4 G. Gr., 255. 
 
 77. Partnership name: A bond signed by 
 both principal and sureties in their partner- 
 ship name is not prima facie insufficient: 
 Danforthv. Carter, 1-546 -j-Churchin v. Full- 
 iam, 8-45. 
 
 78. Where an attachment was sued out 
 against a member of a firm for a partnership 
 
 indebtedness, held, that a bond executed to 
 the firm was not sufficient : Courrier v. Cleg- 
 horn, 3 G. Gr., 523. 
 
 79. Where the bond runs to a firm and the 
 writ issues against firm property, it will not 
 cover damages for wrongful attachment of 
 the individual property of a member of the 
 firm, although such partner is joined as de- 
 fendant in the action : Mason v. Rice, 66-174. 
 
 80. GiTing an appeal bond does not release 
 from liability on the attachment bond: 
 McCall V. Bradley, 3 G. Gr., 200. 
 
 81. Motion to dissolve tlie attachment for 
 insufficiency of the bond may be made 
 where the amount is not as large as re- 
 quired by statute : JSamble v. Owen, 20-70. 
 
 82. And this remedy, and not demurrer, is 
 available for failure to give bond : Brace v. 
 Grady. 36-853. 
 
 83. Amendment of the bond: The objec- 
 tion that the bond is not sufficient in amount 
 may be avoided by substitution of a sufficient 
 bond : Van Winkle v. Stevens, 9-264. 
 
 84. A mistake in the recital of the bond 
 as to the county in which the proceed- 
 ing is pending is a defect which may be 
 cured : Holmes v. Budd, 11-186. 
 
 85. A defect in the bond may be cured by 
 amendment, and it is therefore error to dis- 
 charge the attachment for such defect when 
 the party offers to substitute a proper bond: 
 Cheever v. Lane, 9-193. 
 
 8G. A substituted bond is to be ti-eated in 
 all respects as if filed at the beginning of the 
 action : Branch of State Bank v. Morris, 13- 
 136. 
 
 As to amending bonds in general, see 
 Bonds. 
 
 Remedy on the bond: See infra, IX, d. 
 
 IV. The wkit. 
 
 87. Proceedings under, are independent 
 of main action: The object of the writ is to 
 seize and hold the property of the defendant, 
 or its equivalent, to await the event of the 
 suit. If plaintiff recovers, the property- is 
 considered as having been levied on under 
 execution, and defects in the writ or the 
 proceedings thereunder cannot vitiate the 
 proceedings in the suit in which the attach- 
 ment is secured, the proceedings by attach- 
 ment being merely auxiliary: Carothers v. 
 Clieh, Mar., 64. 
 
ATTACHMENT, IV, V. 
 
 141 
 
 The writ.— The levy and return. 
 
 88. The cause of action or its nature need 
 not be stated in the writ: Wadsworth v. 
 Cheeney, 13-576; Pitkins v. Boyd, 4 G. Gr., 
 255 ; Westphal v. Sherwood, 69-364. 
 
 89. The fact of bond being given need 
 not necessarily be recited in the writ : Hays 
 i\ Gorby, 3-203 (commenting upon Barber v. 
 Swan, 4 G. Gr., 352); Ellsworth v. Moore, 5- 
 486 ; Westphal v. Sherwood, 69-364. 
 
 90. The duties of the officer as to manner 
 of making levy, return, etc., need not be 
 stated in the writ: Westphal v. Sherwood, 
 69-364. 
 
 91. Against one of several defendants: 
 It is not necessarily a ground for quashing 
 the writ, that it is against only one of several 
 defendants in the action, or that the bond is 
 to the one against whom the writ issues and 
 not to all : Patterson v. Stiles, 6-54. 
 
 92. Successive writs may issue in the 
 same county until the proper amount of 
 property is attached: Hamill v. Phenioie, 
 9-525. 
 
 93. Or to different counties without the 
 filing -of a new affidavit or bond : Elliott v. 
 Stevens, 10-418. 
 
 94. Defects in affidavit: The writ is not 
 void in the hands of the officer for defects in 
 the affidavit which might be cured if objected 
 to: State V. Foster, 10-435. 
 
 95. Amendment; absence of seal: Under 
 the provisions of Code, g 3021, it is held that 
 the absence of the seal of the court, or the 
 affixing of the seal of the wrong court, is a 
 defect which may be cured by amendment : 
 Murdough v. McPherrin, 49-479. 
 
 96. But prior to the change made by the 
 enactment of the section last referi-ed to, it 
 was held that the seal was essential, and its 
 absence, or the affixing of the seal of the 
 wrong court, was a fatal defect which could 
 not be remedied by amendment : Foss v. Isett, 
 4 G. Gr., 76; Shaffer v. Sundwall, 33-579. 
 
 97. Also held, that a failure of the writ 
 to recite that previous steps necessary to axi- 
 thorizo its issuance had been taken, could 
 not be cured by amendment: Barber v. 
 Swan, 4G. Gr., 353. 
 
 98. Amendment as to amount claimed: 
 Where the writ is defective in not stating the 
 sum claimed in the action, it may be 
 amended in this respect after levy : Atkins v. 
 Womeldorf, 53-150. 
 
 99. lost vrrit; evidence; presumptions: 
 
 Where the writ under which a levy has been 
 made is lost, but the date and title of the 
 cause and amount of property authorized 
 to be attached are established, there will be 
 a prima facie presumption that the writ was 
 issued by the proper officer, in due form, and 
 under seal : French v. Reel, 61-143 ; McNorton 
 V. Ahers, 24-369. 
 
 V. The levy ai^d eetuen, 
 
 100. Beyond jurisdiction: An attachment 
 levy made by a sherifE outside of his county, 
 or secured by fraud or violence, is void, and 
 may be dissolved by motion: Pomroy v. 
 Parmlee, 9-140. 
 
 101. What acts constitute: To constitute 
 a valid levy, even between the parties, the 
 officer should do that which would amount 
 to a change of possession, or something 
 equivalent to a claim of dominion coupled 
 with the power to exercise it : Crawford v. 
 Newell, 23-453. 
 
 102. Therefore, held, that the act of the 
 sherifE in barricading the front door of the 
 building in which a stock of goods was situ- 
 ated, without entering and taking possession 
 of the goods, the owner of the stock having 
 a key to the back door, by which he might 
 have access thereto, such door not being 
 barricaded or guarded, was not sufficient to 
 constitute a levy : Biekler v. Kendall, 66-703. 
 
 103. The officer must do such acts as that, 
 but for the protection of the writ, he would 
 be liable in titespass therefor: Allen v. 
 McCalla, 25-464. 
 
 104. Therefore, held, that a levy upon cer- 
 tain patterns, which remained locked up in 
 a building, the key of which was in the pos- 
 session of the owner, was not sufficient : Bioc 
 V. Silknitter, 57-262. 
 
 105. The mere intention to levy, where no 
 levy is actually made, will not create a lien as 
 against a subsequent mortgagee: Collier v. 
 French, 64U577. 
 
 106. Abandonment of levy: Where the 
 officer, after levying his attachment, put the 
 property in the possession of a workman on 
 the premises, taking his receipt for it, and 
 did not afterwards, either himself or through 
 his agent, assert any possession over or con- 
 trol of the property, and permitted an as- 
 
142 
 
 ATTACHMENT, V. 
 
 The levy and return. 
 
 signee to take possession of such property 
 and apply it to the payment of the debts of 
 the owner, and gave him no notice of the 
 fact of levy, and made no claim upon him 
 for the property until more than two years 
 after the levy, held, that the lien of the at- 
 tachment was lost and the levy would be 
 regarded as having been abandoned : Little- 
 ton V. Wyvian, 69-348. 
 
 107. An attachment lien upon personal 
 property is lost by surrender of possession : 
 Ibid. 
 
 lOS. Possession must be taken: It seems 
 that a, levy upon property not capable of 
 manual delivery may be valid as between 
 the parties, although the same is left in pos- 
 session of the attachment defendant; biit 
 where property capable of possession, such 
 as beer in tubs and vats, was left in de- 
 fendant's possession, with authority to use as 
 he wished by sale or otherwise, provided he 
 should keep the quantity good, held, that the 
 levy was not sufficient and was invalid, even 
 as between the parties : Nockles v. Eggspieler, 
 il-iOO. 
 
 109. The thing against which the proceed- 
 ing is directed must be brought within the 
 jurisdiction of the court by virtue of a seiz- 
 ure, the evidence of which is the service of 
 
 , the writ and the return : McDonald v. Moore, 
 65-171. 
 
 110. Following property: Under the stat- 
 utory provision (Code, § 2966), authorizing the 
 sheriff to pursue and attach in an adjoining 
 county property removed from the county 
 after the writ is placed in his hands has no 
 application to the case of the removal of the 
 debtor: Budd v. Durall, 36-315. 
 
 111. Time of levy: Levy of the attach- 
 ment may be made at any time before judg- 
 ment and before the return: Westphal v. 
 Sherwood, 69-364. 
 
 112. Notice of the levy, as required by 
 Code, § 2967, in case of attachment of prop- 
 erty in possession of defendant or a third 
 person, is not necessary in case of garnish- 
 ment: Phillips V. Oermon, 48-101. 
 
 113. Corporate stock: At common law, 
 shares of stock in an Incorporated company 
 could not be levied on. The only method, at 
 present, of effecting levy under attachment 
 is to follow the method pointed out by stat- 
 ute (Code, § 3967, % 8), by giving to the presi- 
 
 dent or other officer or agent of the company, 
 as there specified, notice of the attachment: 
 Mooar v. Walker, 46-164. 
 
 114. Debts due defendant are levied on 
 by garnishment, which is a mode of attach- 
 ment : Woodward v. Adams, 9-474. 
 
 And see Garnishment. 
 
 115. Judgments owned by defendant are 
 only to be reached as other debts due him, 
 by garnishment, there being no statutory 
 provision, as there is in case of execution 
 (Code, g 3046), for levy of the writ thereon: 
 Ochiltree v. Missouri, I. & N. R. Co., 49-150. 
 And see Osborn v. Cloud, 31-238. 
 
 116. Interest of mortgagee: The lien of 
 a mortgagee upon land cannot be levied on 
 by attaching the land. Garnishment is the 
 method of reaching such interest : Courtney 
 V. Carr. 6-238. 
 
 117. The interest of mortgagor in chat- 
 tels covered by a chattel mortgage cannot 
 be attached. Code, § 3964, directing the offi- 
 cer to give property in which defendant has 
 a legal and unquestionable title preference 
 over that in. which his title is doubtful or 
 only equitable, relates to the duty of the offi- 
 cer as to the order in which property shall be 
 seized, but does not establish a rule as to 
 what interests may be levied upon : Wells v. 
 Sabeloufitz, 68-238. 
 
 118. Unassigned dower right of a widow 
 in lands of her deceased husband was not at 
 common law subject to attachment, nor did 
 the act of 1862 (9 G. A., ch. 151, § 1), which 
 enlarged the dower to a fee-simple interest, 
 change the rule. Whether the provisions of 
 Code of 1873 (§ 3440) have changed it, qucere: 
 Rausch V. Moore, 48-611. 
 
 119. Landlord's share of crops: The right 
 of a landlord to receive as rent a share of the 
 crops grown upon the premises does not give 
 him such interest in the crops, before his 
 share is set off to him, that such share can be 
 levied on under attachment. The landlord's 
 interest can be reached only by garnishment 
 of the tenant: Howard County v. Kyte, 69- 
 307. 
 
 120. A mere license or privilege to erect 
 buildings upon real property and use the 
 same for a particular purpose, which may be 
 surrendered at any time, does not constitute 
 an interest in real estate, but is personal 
 property, which can be levied upon only as- 
 
ATTACHMENT, V. 
 
 US 
 
 The levy and return. 
 
 other personal property : Melhopv. Meinhart, 
 70 . 
 
 121. Equitable interests in real prop- 
 ertj', the legal title to which is in third per- 
 sons, are not to be reached by garnishment : 
 Seymour v. Kramer, 5-285. 
 
 122. The statement in the incumbrance 
 book of an attachment of an equitable inter- 
 est in land, not appearing of record, does not 
 constitute notice to a purchaser or mortgagee 
 of the person holding the legal title : Farmers' 
 Nat. Bank v. Fletcher, 44-253. 
 
 123. Entry in incumbrance boot: The 
 mere entry in the incumbrance book of a 
 statement of the fact of levy (as required by 
 statute), coupled with the intention to make a 
 levy, will not constitute a levy. The purpose 
 of the entry is not as a part of the levy, but 
 as constructive notice thereof: Collier v. 
 French, 64-577. 
 
 124. An entry of the fact of levy on lands 
 under an atta.chment against the husband 
 constitutes no notice to a purchaser from 
 the wife holding the legal title: Bailey v. 
 McGregor, 46-667. 
 
 125. Indexing incumbrance booli: Fail- 
 ure to enter the levy in the index of liens 
 will not defeat the effect of the entry of the 
 proper statement in the incumbrance book. 
 The entry in the incumbrance book consti- 
 tutes notice and affects the lien ; the index- 
 ing, while directed to be made, is not made 
 essential to the validity of the entry in the 
 incumbrance book: Blodgett v. Huiscamp, 
 64^548. 
 
 126. Summary proceedings against de- 
 fendant: To warrant a proceeding as pro- 
 vided by statute (Code, § 2968) against a 
 defendant whose property cannot be found, 
 to compel its disclosure, it is not necessary to 
 show, outside the affidavit on which the 
 summary proceeding is commenced, that a 
 suit is pending in which attachment has 
 been issued : Lutz v. Aylesworth, 66-629. 
 
 127. Wrongful levy; trespass of offlcer: 
 Where the writ is substantially defective, it 
 will constitute no defense in an action 
 against the officer for trespass in acting 
 under it: Deforest v. Swan, i G. Gr., 357. 
 
 128. A United States marshal seizing prop- 
 erty under attachment issued from a federal 
 court can be sued personally by the owner 
 of property seized by him which is not 
 
 subject to the writ: Sperry v. Ethridge, 
 70 . 
 
 129. A bond to indemnify tlie ofBcer for 
 not levying, In accordance with his legal 
 duty, is void both as to the officer and the 
 party injured : Cole v. Parker, 7-167. 
 
 130. Trespass in plaintiff: The possession 
 of an officer who#has taken property under 
 an attachment is the possession of plaintiff 
 in the attachment proceeding, and the latter 
 will be held liable for a wrongful levy to the 
 same extent as the former, whether he has 
 actual knowledge of the seizure or not: 
 Robinson v. Keith, 25-321. 
 
 131. Where chattel property in the posses- 
 sion of the mortgagor under a valid mortgage 
 is levied upon in an attachment proceeding,, 
 and sold by order of the court procured by 
 the attachment plaintiff, such plaintiff be- 
 comes liable to the mortgagee in an action of 
 trespass : Meyer v. Gage, 65-606. 
 
 132. Conversion ; liability of plaintiff: 
 Where the seizure under the writ is not 
 shown to be wrongful, the attachment plaint- 
 iff cannot be held liable for conversion with- 
 out an allegation and proof 'that he did, or 
 authorized the officer to do, some unlawful 
 act with reference to the property : Burt v.. 
 Decker, 64^106. 
 
 133. Liability of attorney: An attorney 
 is not liable for causing property to be seized 
 under attachment, if he acts in obedience to- 
 the instructions of his client: Dawson v. 
 Buford, 70- — . 
 
 134. Appraisement of the property levied 
 on is not necessary to make the levy good ; it 
 is only required where a delivery bond is 
 given: Smith v. Coopers, 9-376; Woodward 
 V. Adams, 9-474. 
 
 135. Return : The officer may justify un- 
 der a writ under which a levy has • been 
 made, although the writ has not yet been re- 
 turned: Kingsbury V. Buchanan, 11-387. 
 
 136. It is the levy of the attachment, and 
 not the sheriff's return on the writ, that 
 gives the court jurisdiction of the subject- 
 matter ; and a defect in the return will not 
 render the proceedings void, nor subject to- 
 collateral attack ; but they wiU be voidable 
 only, and subject to correction in a du-ect 
 proceeding: Rowan v. Lamb, 4 G. Gr., 468. 
 
 137. The fact that the return does not 
 state the property levied on to be that of de- 
 
Ii4 
 
 ATTACHMENT, VI. 
 
 Eights acquired by levy ; lien. 
 
 fendant will not render subsequent proceed- 
 ings under such levy void. (Overruling Tif- 
 fany V. Glover, 3 G. Gr., 387): Bowan v. 
 Lamb, 4 G. Gr., 468. 
 
 138. Irregularities or defects in the return 
 of an officer to the attachment are waived 
 by acquiescence in the levy and consenting 
 to the property being put into the possession 
 of the officer. Such consent is shown by 
 executing a delivery bond for the release of 
 the property as authorized by law: Case 
 Threshing Machine Co. v. Merrill, 68-540. 
 
 139. When to be made: Code, § 3010, re- 
 quires that return be made immediately after 
 the attachment of property, and at least not 
 later than the first day of court succeeding 
 such levy, but it is not required that the writ 
 be returned the first day of the first term 
 succeeding its issuance. The levy of the 
 writ may be made at any time before judg- 
 ment or before its return : Westphal v. Sher- 
 wood, 69-364. 
 
 140. The return as evidence ; parol to 
 vary: The return of the writ, being the act 
 of a sworn officer, is prima facie evidence of 
 the facts therein stated. Whether it can be 
 contradicted by parol testimony, qiicBre: 
 Kingsbury v. Buchanan, 11-387. 
 
 141. The return is the statutory evidence 
 of what it purports to show. It constitutes, 
 with the writ, one record. Without a return 
 the court has no proper evidence before it on 
 which to base any proceedings against spe- 
 cific property levied upon, or credits gar- 
 nished: Rock V. Singmaster, 62-511. 
 
 142. The service and return of the writ 
 are the evidence of the levy : McDonald v. 
 Moore, 65-171. 
 
 143. Levy after return of the writ and 
 after default upon service by publication 
 will not confer jurisdiction over the prop- 
 erty, and a sale thereunder will be a nullity : 
 Osborn v. Cloud, 28-104. 
 
 yi. Rights acquieed by levy; lien. 
 
 144. Inconsistent rights: An attaching 
 plaintifE who has seized property as that of 
 defendant cannot afterward assert a prior 
 right in himself thereto, as under a pledge or 
 sale: Citizens' Bank v. Daws, 68-460; Craw- 
 ford V. Nolan, 70 . 
 
 145. Rights not greater than those of 
 defendant: An attaching creditor acquires 
 
 no greater right in the property attached than 
 was held by the defendant at time of attach- 
 ment: Manny v. Adams, 33-165: HarsKber- 
 ger v. SarsKberger, 26-503 ; Bacon v. Thomp- 
 son, 60-284; Rogers v. Highland, 69-504. 
 
 14G. Prior nnrecorded conveyance: The 
 hen of an attachment does not, under our 
 registry laws, take priority over an unre- 
 corded conveyance, even though the attach- 
 ing creditor had no notice of such conveyance : 
 First Nat. Bank v. Hayzlett, 40-659 ; Savery 
 V. Browning, 18-246; Norton v. Williams, 
 9-538. 
 
 147. Notice to the officer before receiving 
 the writ of attachment under which the levy 
 is made of prior claims on the property must 
 be deemed notice to the attaching plaintiff: 
 Lyons v. Hamilton, 69-47. 
 
 And further, see Notice, I, b. 
 
 148. Assignment: If the property has been 
 assigned prior to the levy and the assignee is 
 dOigent in asserting his rights, he will be en- 
 titled to a release of the levy : Stephenson v. 
 Walden, 34r-84. 
 
 149. Evidence of transfer; bill of sale: 
 But evidence of a bill of sale, not accom- 
 panied by evidence of change of possession, 
 cannot be received to defeat a levy of attach- 
 ment on the property as that of the grantor: 
 Sevan v. Hayden, 13-133. 
 
 150. Judgment; res inter alios acta; 
 Where an intervener sought to defeat an 
 attachment lien, under claim that he was 
 the owner of the property attached, held, 
 that a decree in an action between him and 
 attachment defendant, to which attaching 
 plaintiff was not a party, was not admissible: 
 McBride v. Ham, 48-151. 
 
 151. The burden of proof is upon an 
 attachment creditor claiming priority over an 
 attachment which is first in point of time : , 
 Allen V. Loring, 37-595. 
 
 152. Actual levy necessary: The mere in- 
 tention to levy, where no levy is actually 
 made, will not give the attaching creditor 
 any priority over a mortgage of the property 
 subsequently executed: Collier v. French, 
 64-577. 
 
 153. No lien in garnishment: In case of 
 attachment a lien is acquired against the 
 propei-ty, hut no personal claim against a 
 third party ; while in garnishment there is no 
 lien upon the property, but a personal claim 
 
ATTACHMENT, VII, VIII, a. 
 
 145 
 
 Custody of property.^ Eelease or discharge. 
 
 is acquired against garnishee: Mooar v. 
 Walker, 40-164. 
 
 154. Lieu oil corporate stock: A levy on 
 shares of stock by notice to the officers of the 
 corporation, as provided by statute, gives 
 rise to a hen. The proceeding is not in the 
 nature of a garnishment : Ibid. 
 
 155. The lieu is a vested right which 
 nothing subsequent can destroy, except the 
 dissolution of the attachment. The legisla- 
 ture may suspend the enforcement of such 
 liens, but cannot destroy them : Hannahs v. 
 Felt, 15-141. 
 
 15S. Therefore held, that a statute provid- 
 ing that levies already made upon property 
 of volunteers in the United States army 
 should be discharged was unconstitutional: 
 Ibid. 
 
 157. The death of defendant will not de- 
 stroy a lien already acquired : Lord v. Allen, 
 34-281. 
 
 YII. Custody of the peopeett. 
 
 158. In custody of the law: Where prop- 
 erty was held by the sheriff under attachment 
 in an action for breach of warranty in tlie sale 
 thereof, held, that being thus in the custody 
 •of the law, defendant was not entitled, on 
 application to the court, to an order allowing 
 him temporary possession thereof, for the 
 purpose of trying whether it would conform 
 to the terms of the warranty : Mogers v. San- 
 son, 35-383. 
 
 159. Appointment of receiver of niort- 
 gas'ed property: To justify the appointment 
 ■of a receiver of attached property under the 
 statute (Code, § 2970), some facts must be 
 shown rendering the exercise of the power 
 proper ; and held, that there was no ground 
 for such appointment, where the attachment 
 was by garnishment of the mortgagee in pos- 
 .session of naortgaged property, selhng in 
 usual course of trade, and not shown to be an 
 improper person : Silverman v. Kahn, 53-486. 
 
 IGO. Care required of ofScer: The officer 
 holding property under writ of attachment 
 is only held to the exercise of ordinary care 
 in the preservation of the property in his 
 hands: Cresswellv. Burt, 61-590. 
 
 161. Compensation for keeping: "While 
 the sheriff is entitled to be allowed his neces- 
 .sary expenses for keeping the attached prop- 
 erty, he is not to have any compensation for 
 Vol. I — 10 
 
 personal services in addition to his statutory 
 fees and salary: King v. Shepherd, 68-215. 
 
 163. The sheriff is liable to a person em- 
 ployed by him to take care of attached prop- 
 erty, and this claim for necessary expenses 
 of keeping such property is to be presented 
 by the sheriff, and not by the person em- 
 , ployed by him for that purpose: Rowley v. 
 Painter, 09-433. 
 
 VIII. Eelease oe dischaege; judg- 
 ment; APPEAL. 
 
 a. Release from the levy. 
 
 163. Exempt property: Where property 
 which is exempt from execution is seized 
 under attachment, defendant may have it 
 released by motion or by proceedings in 
 replevin: Wilson v.'Stripe, 4 G. Gr., 551. 
 
 164. Properly of third person dis- 
 charged: The officer may, at the peril of 
 showing the real ownership of the property, 
 discharge it on the ground that it is not the 
 property of defendant in attachment, the 
 burden of proof being on him to show that 
 fact. Therefore, in an action against tlie offi- 
 cer for damages for wrongfully discharging 
 attached property, evidence of ownersliip of 
 the property by another person than tlie de- 
 fendant in attachment should be admitted : 
 Wadsworthv. WalWcer, 45-395 ; S. C, 51-605. 
 
 165. Duubtful title; release: An officer 
 who has levied upon property, the title of 
 which is in doubt, will render himself liable 
 on his official bond by releasing such property 
 if it is found that it was in fact subject to 
 the attachment : Wadsworth v. Walliker, 51- 
 605. 
 
 166. Discharge of excessive levy:' If the 
 officer levies upon goods exceeding in value 
 the amount authorized, he may discharge the 
 excess, but he should not release the entire 
 levy: Ibid. 
 
 167. Indemnity bond; notice of claim: 
 The provisions of statute (Code, §§8055- 
 3060) authorizing the sheriff, on levying an 
 execution, to requu-e from the plaintiff in 
 execution an indemnity bond in case notice 
 is served upon him of a claim to the property 
 on the part of a third person, and to release 
 the property in case such bond is not given, 
 were not originally applicable to levies under 
 attachment ; but held, that in case the prop- 
 
146 
 
 ATTACHMENT, VIII, b, c. 
 
 Bond to dischsu-ge the attachment. — Delivery bond. 
 
 erty was afterwards held under an execution 
 subsequently issuing in the same case, such 
 provisions would apply: Allen v. Wheeler, 
 54-638 ; Wadsworth v. Walliker, 45-395. 
 
 168. And Jield, that even if such bond 
 should be given in an attachment case, it 
 would only have the eflfect of a common law 
 bond, and would not render the oflScer liable 
 absolutely for releasing property from the 
 levy : Wadsworth v. Walliker, 45-395. 
 
 109. A bond to indemnify the officer for 
 not levying under the writ, in accordance 
 with his official duty, is void, both as to the 
 officer and the party injured : Cole v. Parker, 
 7-167. 
 
 170. But by 20 G. A., ch. 45, provisions 
 similar to those above referred to in case of 
 executions are made in case of attachments, 
 and such statute is not unconstitutional: 
 Cheadle v. Guittar, 68-680. 
 
 171. The notice to the officer by a third 
 person, claiming the property, stating the 
 nature and extent of his interest therein, 
 and under what right he claims, is sufficient. 
 Where such claim is based upon a mortgage 
 securing notes, the consideration for the 
 notes and mortgage need not be stated: 
 Crawford v. Nolan, 70 . 
 
 b. Bond to discharge the atta^hTnent. 
 
 172. Terminates the lien: Where the 
 statutory bond (provided for in Code, § 3994) 
 discharging the attachment is executed, the 
 property seized may be levied on under other 
 attachments. The lien of the attachment is 
 discharged by giving the bond: Jones v. 
 Peasley, 8 G. Gr., 53. 
 
 1 73. The bond here contemplated must be 
 for the .performance of the judgment. A 
 bond for the return of the property on de- 
 mand does not release it from the hen of the 
 attachment and terminate the detention for 
 which the defendant may tlaim damages 
 on the attachment bond, in case the attach- 
 ment is wrongful : Selz v. Belden, 48-451. 
 
 174. This bond is a new security taking 
 the place of the attachment lien, and a mo- 
 tion to dissolve the attachment cannot prop- 
 erly be made after such bond is given : Aus- 
 tin V. Burgett, 10-303. 
 
 175. Charges for keeping; costs: When 
 such bond is given it is erroneous to require 
 defendant to pay the charges accrued for 
 
 keeping the attached property before releas- 
 ing it to Mm. Such charges go with the 
 costs in the case: Milbum v. Marlow, 4 G. 
 Gr., 17. 
 
 176. Formalities of the bond: Theplaint- 
 iif may sue on the bond, although not exe- 
 cuted to him but to the sheriff : Moorman v. 
 Collier, 82-138. 
 
 177. It is not essential that it be signed 
 by defendant : Selz v. Belden, 48-451. 
 
 178. A bond, irregular in form, held suf- 
 ficient : Sheppard v. Collins, 13-570. 
 
 179. Presumption of regularity: It will 
 be presumed, in the absence of anything in 
 the record to the contrary, that a bond taken 
 and approved by the clerk was taken under 
 such circumstances as to reader his action 
 proper: Budd v. Durall, 86-315. 
 
 180. Not released by appeal bond rTlie giv- 
 ing of a supersedeas bond on appeal does not 
 affect a bond previously given to discharge 
 the attachment. The plaintiff may recover 
 to the full amount of the discharge bond it 
 necessary to satisfy his judgment, and if 
 there is any part of the judgment unsatisfied, 
 may also recover upon the supersedeas bond 
 to that extent: State v. McGlothlin, 61-313. 
 
 181. Remedy on the bond: The statutory 
 provision for the entry of judgment on the 
 bond is merely additional to the remedy by 
 action at common law : Ibid. 
 
 182. Discharge of sureties: Where the 
 sureties on such bond liave been discharged 
 upon judgment against plaintiff without ex- 
 ception to the order of discharge, but on 
 reversal, upon appeal, there is a new trial and 
 plaintiff recovers, he cannot have judgment 
 against the sureties if, after the order of dis- 
 charge, they have surrendered indemnity 
 previously held : Barton v. Thompson, 66-536, 
 
 c. Delivery iond. 
 
 183. Does not discharge attachment: A 
 
 bond given as provided by statute (Code, 
 § 2996) to secure the release of certain prop- 
 erty, conditioned that it be returned to satisfy 
 any judgment rendered against defendant, 
 does not terminate the attachment, nor pre- 
 vent defendant from moving for its dis- 
 charge : Allerton v. Eldridge, 56-709. 
 
 184. Nor does it prevent a tliird party 
 claiming title to the property from disputing 
 the validity of the attaclunent by summary 
 
ATTACHMENT, VIII, c, d. 
 
 147 
 
 Delivery bond. — Dissolutioa of attachment. 
 
 proceedings (under Code, g 3116): Tuitle v. 
 Wheaton, 57-304. 
 
 ISo. The execution of a delivery bond for 
 the release of the property constitutes a 
 ■waiver of any objection to irregularities or 
 defects in the return of the attachment : Case 
 Threshing Machine Co. v. Merrill, 68-540. 
 
 186. Being- for Ibeueftt of plaintiff, the 
 bond is not limited to the officer serving the 
 process, but delivery must be made, if deliv- 
 ery becomes necessary, to the officer who has 
 the final process : Bamsey v. Coolbaugh, 1 3- 
 164. 
 
 187. Defects in form: A mistake in the 
 bond as to the court in which the attachment 
 issued will not render the bond invalid as to 
 the sureties : Ripley v. Gear, 58-460. 
 
 1 88. A delivery bond, though so defective 
 as not to be sufficient under the statute, may 
 stiU be enforced as a common law bond, and 
 the attachment defendant will be liable 
 thereon if judgment goes against him in the 
 proceedings in which the attachment was is- 
 sued: Oarretsonv. Reeder, 28-21. 
 
 189. Order for sale of the property, upon 
 the rendering of judgment against defend- 
 ant, is not necessary in order to fix liability 
 on a delivery bond on which the property 
 has been released : Ibid. ; Waynant v. Dod- 
 son, 13-33. 
 
 190. Applicable in g-arnisliment: Under 
 Code of '51, § 1876, held, that debts or prop- 
 erty attached by garnishment might be 
 released in the same way as property act- 
 ually seized, and that the provisions as to ap- 
 praisement were applicable to such cases: 
 Woodward v. Adams, 9-474. 
 
 191. Action on the bond may be brought 
 by the assignee of the attachment plaintiff : 
 Rowley v. Jewett, 56-492. 
 
 192. An alteration made in the bond at 
 the time of delivery to the officer, for the 
 purpose of more fully describing the prop- 
 erty, held not to release the sureties, although 
 made without their knowledge, for the reason 
 that the bond would have been sufficient 
 without the alteration, which was therefore 
 immaterial: Ibid. 
 
 193. The Talidity of the levy, not being 
 questioned on the trial of an action on the 
 delivery bond, cannot be first objected to on 
 appeal in the supreme court : American Ex. 
 Co. V. Smith, 57-342. 
 
 194. The execution of an appeal bond, 
 on appeal to the supreme court from a judg- 
 ment rendered in an attachment proceeding, 
 does not operate to discharge the delivery 
 bond. Xhe plaintiff may avail himself of 
 either or both such securities: Williams v. 
 Rdbismi, 31-498. 
 
 195. An appeal bond does not take the 
 place of the delivery bond : Jennings v. Wax- 
 nock, 37-378-. 
 
 196. The appraisement provided for by 
 statute to determine the amount of the bond 
 to be given is not prima facie, at least, essen- 
 tial to the validity of the bond, and need not 
 be shown in the first instance in an action 
 thereon : Woodward v. Adams, 9-474. 
 
 197. Defense; another's property: A de- 
 fendant in an action on a bond, who seeks to 
 take advantage of the fact that the property 
 did not belong to him, must state in his 
 answer to whom it did belong : Blatchley v. 
 Adair, 5-545. 
 
 d. Dissolution of attaohment or release 
 of 'property on motion. 
 
 198. For a defect apparent on the record : 
 
 Attached property will be discharged on mo- 
 tion only where it is apparent of record that 
 it should not have been levied on; a third 
 party claiming the property should proceed 
 in accordance with the provisions of Code, 
 §3016: T%drickv.Sulgrove,%^%m; Williams 
 V. Walker, 11-77. 
 
 199. That the petition for attachment does 
 not state sufficient ground therefor, cannot 
 be raised by demurrer, but must be reached 
 by motion as here provided : Hunt v. Collins, 
 4-56. 
 
 200. Discharge not defeated by ground of 
 attachment subsequently accrued: Where 
 it appears that, at the time the writ issued, 
 plaintiff had no cause of action, the property 
 should be discharged, although a cause of 
 action, as made out in an amended petition, 
 has accrued subsequently to the writ: Cra- 
 mer V. White, 39-336. 
 
 201. For defects in petition : In a particu- 
 lar case, held, that an attachment should have 
 been quashed for defects in the affidavit to 
 the petition : Stadler v. Parmlee, 10-23. 
 
 202. InsulHciency of amount of bond 
 may be a proper ground for motion to dis- 
 solve : Hamble v. Owen, 20-70. 
 
148 
 
 ATTACHMENT, VIII, d, e. 
 
 Dissolution. — Release upon motion of third party. 
 
 SOS. Defect in writ or Tvant of bond is to 
 
 be raised in this manner, and not by de- 
 murrer : Brace v. Grady, 36-353. 
 
 204. Failure of plaintilF to recover on 
 
 the whole of the claim sued on is not ground 
 for quashing the attachment, pro tanto, after 
 judgment : Sackett v. Partridge, 4-416. 
 
 205. Tiie truth of the facts alleged as 
 ground of attachment cannot be questioned 
 on motion to dissolve. The remedy is by 
 suit on the attachment bond: Sturman v. 
 Stone, 31-115. 
 
 806. Exemption: That property levied on 
 is exempt from execution may be set up as a 
 ground for its release: Wilson v. Stripe, 4 
 G. Gr., 551. 
 
 207. Where it was shown that the prop- 
 erty attached was exempt, held, that it should 
 have been discharged upon motion, and that 
 such showing was not inconsistent with the 
 allegations in the petition for attachment, 
 that plaintiflE was about to remove his prop- 
 erty from the state : Hastings v. Phoenix, 59- 
 394. 
 
 208. If the party fails to take advantage 
 of his exemption by motion to have the prop- 
 erty released, he may still do so by replevin : 
 Wilson V. Stripe, 4 G. Gr., 551. 
 
 20J). Where attached property was re- 
 leased on motion as exem.pt, held, that upon 
 seizure of the same property upon execution 
 in the same action defendant might recover 
 it by replevin, although a writ of error had 
 been taken from the decision on the motion, 
 no supersedeas bond being filed : Pellersells v. 
 Allen, 56-717. 
 
 810. Exemption must be clearly shown: 
 To justify the discharge of property on mo- 
 tion on the ground of exemption, the case 
 should be made clear and entirely satisfac- 
 tory. Otherwise the party should be left to 
 otiier and ordinary means for testing the Ua- 
 bility of the property to seizure under the 
 writ : McLaren v. Hall, 36-397. 
 
 211. Wrongful levy: The fact that the 
 property was attached by the shei'iff outside 
 of his county, or that the levy was secured 
 by fraud or violence, is a ground for dis- 
 charge of the property on motion : Pomroy 
 V. Parmlee, 9-140. 
 
 212. Title to real property: The question 
 whether certain real estate is subject to 
 attachment may properly be determined on 
 
 motion, but if the title to such property be 
 a matter of dispute between the parties, 
 upon the facts, it cannot properly be deter- 
 mined in this manner: Sausch v. Moore, 48- 
 611. 
 
 213. Want of an allowance of the 
 amount of property to be attached, as re- 
 quired in actions on tort, will not be ground 
 to discharge the entire attachment where the 
 action is both on contract and tort; but if 
 more property is seized than can be held un- 
 der attachment on the portion of the acti(fc 
 founded on contract, the excess may be re- 
 leased : Moses v. Arnold, 43-187. 
 
 214. Where there is an absence of such al- 
 lowance in an action on tort, and motion is 
 made to discharge the attachment on that 
 ground, the court may then make an allow- 
 ance to relate back, as between the parties, 
 to the issuance of the writ, and refuse to dis- 
 charge the attachment: Magoon i'. Oillett, 
 54-54. 
 
 215. Pleading; evidence; estoppel: No 
 pleading controverting the motion is required 
 or allowed. Evidence of any facts contro- 
 vertipg the ground for release set up in the 
 motion may be introduced without pleading 
 them, even though they establish an estop- 
 pel : Joyce v. Miller, 59-761. 
 
 216. Dissolution afler discharge by bond: 
 Dissolution of the attachment should not be 
 ordered after the attachment has been dis- 
 charged by bond : Austin v. Burgett, 10-303. 
 
 217. Appearance by motion to release at- 
 tached property is a general appearance to 
 the action : Chittenden v. Hobbs, 9-417. 
 
 e. Melease upon motion of third party. 
 
 218. A third party claiming the prop- 
 erty may avail himself of the summary pro- 
 ceedings provided by statute (Code, § 3016) 
 to have his right to the property determined, 
 although he has already secured possession 
 of the property by a delivery bond : Tuttle v. 
 Wheaton, 57-304. 
 
 219. This section simply provides an addi- 
 tional remedy to the third person whose 
 property is wrongfully seized. He is not 
 bound to follow it: Sperry v. Ethridge, 
 70 . 
 
 220. Damages for the use or loss of serv- 
 ice of the property cannot be recovered in 
 such proceeding. Such relief can be had 
 
ATTACHMENT, VIII, f. 
 
 149 
 
 Dissolution upon judgment ; appeal. 
 
 only in an independent action ; Jennings v. 
 Hoppe, 44-205. 
 
 221. Any claim, lien, interest or title to 
 or in the property attached may be set up at 
 any time before the proceeds are paid to the 
 plaintiff in attachment : Howe v. Jones, 57- 
 130. 
 
 222. Applicable in greneral as well as 
 specific attachments: These provisions are 
 not limited to cases of specific attachment : 
 Jennings v. Hoppe, 44-205. 
 
 223. Upon appeal from judgment of a 
 justice against a garnishee, taken by the de- 
 fendant in the action, a third person may 
 intervene and assert his claim to the debt 
 under these provisions although the gar- 
 nishee does not appeal: Daniels v. Clark, 
 38-556. 
 
 f. Dissolution upon judgment ; appeal. 
 
 224. Judgment against plaintiff upon 
 demurrer or nonsuit discharges the attach- 
 ment: Harrow v. L/yon, 3 G.'Gr., 157; Brown 
 V. Harris, 2 G. Gr.. 505. 
 
 225. Not revived by reveKal: "Where 
 attachment has been dissolved by judgment 
 against plaintiff, it is not revived by reversal 
 of the judgment on appeal: Harrow v. Lyon, 
 3G. Gr., 157. 
 
 226. Nor by setting aside nonsuit: 
 Where the attachment is released by judg- 
 ment of nonsuit, it is not revived by an 
 order setting aside the nonsuit upon motion : 
 Brown v. Harris, 2 G. Gr., 505. 
 
 227. Judgment dissolving the attach- 
 ment on motion is suspended by appeal, if 
 the appeal is taken within a reasonable time, 
 and if the judgment is reversed the attach- 
 ment remains : Danforih v. Carter, 4-230. 
 
 228. Such a judgment is a final adjudica- 
 tion upon all questions involved therein, un- 
 less appealed from in proper time. To con- 
 tinue the lieu as to third persons, the appeal 
 must be taken forthwith [but see now, statu- 
 tory provision referred to below], but as 
 between the parties four days is a reasonable 
 time. In the absence of notice that the 
 plaintiff purposes appealing from the judg- 
 ment dissolving the attachment on motion, 
 the officer holding money which is the pro- 
 ceeds of the attached property may at once 
 pay it over to the party thus appearing to be 
 
 entitled thereto: Danforfh v. Rupert, 11— 
 547. 
 
 229. Where the special verdict of the jurj- 
 showed that at the time the attachment 
 issued plaintiff had no cause of action, held, 
 that the attached property was discharged, 
 although there was a verdict for plaintiff on 
 an amended petition subsequently filed-: 
 Cramer v. White, 29-836. 
 
 230. Judgment against plaintiff dis- 
 charges the attachment without any order of 
 court, and an appeal, taken after the two 
 days from the rendition of such judgment, 
 allowed by Code, § 3019, within which to ap- 
 peal, will not revive the attachment: Har- 
 ger v. Spofford, 44-369. 
 
 231. The fact that defendant , afterward 
 formally moves for a dissolution will not en- 
 able plaintiff, by appealing within two days 
 from such order, to keep the attachment in 
 force: Ibid. 
 
 233. Sureties discharged: Where no ex- 
 ception was taken to an order discharging 
 sureties on a dischai'ge bond upon a judg- 
 ment being entered against plaintiff, held, 
 that a subsequent reversal would not entitle 
 plaintiff to judgment against the sureties, it 
 appearing that after the order discharging 
 them they had released indemnity which 
 they held : Barton v. Thompson, 66-526. 
 
 233. The invalidity of judgment for 
 plaintiff, for whatever cause, does not de- 
 feat the attachment lien, but the case stands 
 as if no judgment had been rendered, all 
 rights depending upon the preceding steps 
 being unimpau-ed: Hodsonv. Tibbetts, 16-97. 
 
 234. Spiicial execution: The lien of the 
 attachment is not lost by reason of an omis- 
 sion to order a special execution : Kingsbury 
 V. Buchanan, 11-387. 
 
 235. Wiiere attached property is sold un- 
 der execution, it will be presumed that it is 
 sold under special execution: Peterson v. 
 Foli, 67-402. 
 
 236. Notice by publication ; jurisdiction: 
 In an attachment suit commenced by publi- 
 cation of notice, in which the court does not 
 acquire jurisdiction over the person of de- 
 fendant by personal service or appearance, 
 the plaintiff cannot have judgment for a 
 general execution for any residue of the debt 
 left unsatisfied after exhausting the attached 
 property : Johnson v. Dodge, 19-106. 
 
150 
 
 ATTACHMENT, IX, a, b, c, d. 
 
 Remedy for wrongfully suing out the attachment. 
 
 IX. Remedy foe wrongfully suing 
 
 OUT THE ATTACHMENT. 
 
 a. Form of action. 
 
 237. Indepen dently of statute : An action 
 might be maintained independently of the 
 statute against a party who, maliciously and 
 without probable cause, should sue out a 
 writ of attachment; but in the absence of 
 proof of malice and want of probable cause, 
 the only remedy is on the bond : Tallant v. 
 Burlington Gas Light Co.. 36-262. 
 
 238. Where a writ of attachment is sued 
 out maliciously and without probable cause, 
 and damage ensues, the defendant has a 
 remedy on common law principles, aside from 
 the remedy on the attachment bond : Preston 
 V. Cooper, 1 Dillon, 589. 
 
 239. The only remedy of the attachment 
 defendant, it seems, is upon the bond, or by 
 an action for malicious attachment, in which 
 latter case it is not sufficient to allege that the 
 writ was wrongfully procured, but there 
 must be allegations of malice and want of 
 probable cause : Ibid. 
 
 240. Where by statute no bond in attach- 
 ment is required and none given, the de- 
 fendant, in the absence of legislation giving 
 the right, cannot maintain an action against 
 the plaintiff in attachment, by showing 
 merely that the writ was wrongfully sued 
 out, because there was no debt due from him, 
 but he must show malice, want of probable 
 cause, and damage, as i-equired by the prin- 
 ciples of the common law in actions for 
 malicious prosecution : Ibid. 
 
 241. Action should be on bond: An ac- 
 tion for wrongfully suing out an attachment 
 should be brought on the bond: Abbott v. 
 Whipple, 4 G. Gr., 320. 
 
 The only method of questionings the 
 truth of the grounds alleged for the issuance 
 of the attachment is by action on the bond : 
 See cases supra, g§ 51-54. 
 
 b. What constitutes wrongful suing 
 out. 
 
 242. Want of actual ground or reason- 
 able belief: The question in an action on the 
 bond, for improperly suing out the writ, is 
 not alone whether the facts alleged as 
 grounds for attachment were actually true, 
 
 but whether plaintiff, exercising that degree 
 of caution that a reasonably pnadent man 
 should have exercised, had good cause to be- 
 lieve that they were true : Winchester v. Cox, 
 4 G. Gr., 131 ; Mahnke v. Damon, 3-101; Bur- 
 ton V. Knapp, 14-196 ; Nordhaus v. Peterson, 
 54^68. 
 
 243. Defendant may show as a defense, 
 either that he had good cause to believe the 
 ground stated to be true, or that it was true 
 in fact, irrespective of his grounds of belief : 
 Vorse V. Phillips, 37-428. 
 
 244. To constitute reasonable ground of 
 belief that the facts alleged for securing an 
 attachment are true, it is not necessary that 
 the facts be such as to lead a reasonably pru- 
 dent man to act in matters of the highest 
 moment to himself. Reasonable gi-ounds of 
 belief of their truth is sufficient: Carey v. 
 Cfunnison, 51-208. 
 
 245. A verdict allowing a recovery on 
 the bond necessarily implies a finding that 
 the plaintiff in attachment had not reason- 
 able grounds to believe his allegations true, 
 as well as that they were not true : Nockles 
 V. Eggspieler, 53-730. 
 
 c. Pleading conditions and breach of 
 hand. 
 
 246. Breach must be alleged: In an ac- 
 tion on the bond, the conditions of such bond 
 must be set out, and facts alleged constitut- 
 ing their breach : Ryder v. Thomas, 82-56. 
 
 247. As, for instance, the non-payment of 
 damages which the party injured claims to 
 have suffered: Homer v. Harrison, 37-378. 
 
 248. A failure to make such averment may 
 be raised for the first time on motion in arrest 
 of judgment, at least where no evidence of 
 damage is offered : Henckev. Johnson, 62-555. 
 
 And see, in general, Pleadings, §§ 90-97. 
 
 249. " Wilful wrongfulness:" An allega- 
 tion that " the attachment was wrongfully 
 sued out with wilful wrongfulness," held, 
 a sufficient allegation of want of reasonable 
 belief of the truth of the grounds set out on 
 the part of the plaintiff in the attachment: 
 Abbott V. Whipple, 4 G. Gr., 320. 
 
 d. Action on hand. 
 
 250. Accrues wlieu: The breach of the 
 bond consists in the wrongful suing out of 
 
ATTACHMENT, IX, d, e. 
 
 151 
 
 Action on bond. — Evidence of wrongful suing out. 
 
 the writ, and whatever damages have re- 
 sulted to defendant are to be deemed a claim 
 held by him at the commencement of the 
 suit and filing of the bond, when they are 
 concurrent acts; but otherwise, if the at- 
 tachment is sued out subsequently to the com- 
 mencement of the action: Eeed v. Chubb, 
 9-178. 
 
 251. The right of action on the bond ac- 
 crues as soon as the defendant in the attach- 
 ment is disturbed in the possession of the 
 property levied on by virtue Of the writ, if it 
 is wrongfully issued, and he need not wait 
 until the termination of the principal suit to 
 sue on the bond : Campbell v. Chamberlain, 
 10-337. 
 
 252. By way of counter-claim: Therefore 
 (without the statutory provision to that 
 effect now found in Code, § 3017), held, that 
 where the attachment was sued out at the 
 commencement of the action, a claim 
 on the bond for damages for the wrongful 
 suing out of the attachment might be 
 interposed as a set-off or counter-claim: 
 Eeed v. Chubb, 9-178; Stadler v. Parmlee, 
 10-23. 
 
 253. The decision of the court on this 
 point in the foregoing cases would be subject 
 to very grave doubts did not the statute now 
 expressly authorize suit on the bond by way 
 of counter-claim: Branch of State Bank v. 
 Morris, 13-136. 
 
 254. Such a counter-claim is an answer 
 in the action sufficient to prevent default 
 against defendant: Town v. Bringolf, 4n~ 
 133. 
 
 255. Assignment of claim on bond: 
 Where the debtor, after the suing out of the 
 attachment, makes a general assignment, 
 the assignee may intervene in the attach- 
 ment proceeding in which the debtor has set 
 up the claim for damages on the bond as a 
 counter-claim: Dunham v. Greenbaum, 5S- 
 308. 
 
 256. Where defendant had previous to the 
 attachment made an assignment of his prop- 
 erty, held, that the right of action on the at- 
 tachment bond inured to the assignee, and 
 that a subsequent assignment thereof by the 
 latter to the defendant would not enable de- 
 fendant to set it up as a counter-claim in the 
 action against him: Rumsey v. Robinson 58- 
 235. 
 
 e. 'Evidence of wrongful suing out. 
 
 257. No indebtedness: If there was no 
 indebtedness from defendant to plaintiff in 
 the attachment suit, that fact alone would 
 probably be conclusive evidence that the at- 
 tachment was wrongfully sued out: Nordr 
 haus V. Peterson, 54-68. 
 
 258. The plaintiff's belief in such case 
 with reference to the truthfulness of the 
 grounds of attachment would not prevent 
 such liabOity: Porter v. Wilson, 4 G. Gr., 
 814. 
 
 259. Dismissal of attachment snit by 
 plaintiff therein and release of attached 
 property does not, of itself, show that the at- 
 tachment was wrongfully sued out : Nocklea 
 V. Eggspieler, 47-400. 
 
 260. Amendment: Where the petition 
 stating the indebtedness in an attachment 
 suit was amended after the suit was brought, 
 so as to set up another cause of action, held 
 that, as the second cause of action, as stated, 
 arose after the bringing of suit, and was 
 also inconsistent with the first, the filing of 
 the amendment must be deemed an abandon- 
 ment of the first cause of action and an 
 admission that it did not exist when the at- 
 tachment was sued out : Young v. Broadbent, 
 28-539. 
 
 261. Recovery of less than five dollars 
 does not, in actions of tort, show that the 
 attachment was wrongfully sued out. (See 
 Code, § 2953 ; distinguishing Qaddis v. Lord, 
 10-141): Weller v. Hawes, 49^5. 
 
 262. The judgment in the attachment suit 
 may be introduced in evidence in an axjtion 
 on the bond, and is conclusive as to the in- 
 debtedness between the parties, but not as to 
 the plaintiff's belief in regard to the truth of 
 the matters stated in his petition : Q-addis v. 
 Lord, 10-141 ; Raver v. Webster, 3-503. 
 
 263. Proof of cause of action not con- 
 clusive: The attachment may be wrongful, 
 or even wilfully wrongful, although the cause 
 of action is a just one : Drummond v. Stew- 
 art, 8-341. 
 
 264. The burden of proof is upon the 
 party claiming that the attachment was 
 wrongfully sued out, to establish that fact: 
 Burrows v. Lehndorff, 8-96 ; Veiths v. Hagge, 
 8-183, 191. 
 
 265. The party seeking to recover for the 
 wrongful suing out of the writ has the bur- 
 
152 
 
 ATTACHMENT, IX, e, f. 
 
 Evidence of wrongful suing out. — Measure of damages. 
 
 den of showing, not only that the grounds 
 stated therefor were not true, but also that 
 the rarty suing out the writ did not have 
 reasonable ground to believe that they were 
 true: Dent v. Smith, 53-263. 
 
 266. Intent ol' debtor: Where the ground 
 alleged for an attacliment was that defend- 
 ant was about to dispose of his property 
 with intent to defraud his creditors, held, 
 that on the trial of a counter-claim for dam- 
 ages for the wrongful suing out of such 
 attachment, defendant could not testify what 
 his intention in disposing of his property 
 really was, the true question being whether 
 plaintiff had reasonable cause to believe that 
 defendant's intention was fraudulent: Selz 
 V. Belden, 48-451. 
 
 267. The opinion of a witness as to the 
 debtor's intention in disposing of property 
 is not admissible: Carey v. Gunnison, 51- 
 303. 
 
 288. Refusal to secure or pay, while no 
 ground for suing out an attachment, is ad- 
 missible in evidence on the question whether 
 the attachment was wrongfully sued out: 
 Myers v. Wright, 44-38. 
 
 269. So, also, refusal of defendant to 
 secure or pay indebtedness to others, such 
 fact being known to plaintiff before suing 
 out the attachment, may be shown : Dent v. 
 Smith, 53-263. 
 
 270. Defendant's indebtedness at the 
 time of attachment may be material as bear- 
 ing on the question whether plaintiff was 
 actuated by malice in suing out the attach- 
 ment : Mitchell v. Harcourt, 63-349. 
 
 271. Deeds of conveyance by defendant 
 of his property, made subsequent to the is- 
 suance of the attachment, are not admissible 
 on the question as to whether he was about 
 to dispose of his property at the time of 
 attachment with intent to defraud his cred- 
 itors: Dynes V. Robinson, 11-137. 
 
 272. The writ and return thereon are ad- 
 missible as evidence in an action on the bond : 
 Dnimmond v. Stewart, 8-341. 
 
 27.3. Statements of attaching plaintiff at 
 the time of suing out the attachment are not 
 admissible in evidence for the purpose of 
 showing want of maUce : Shuck v. Vander- 
 venter, 4 G. Gr., 264. 
 
 274. Such statements made after the com- 
 mencement of suit, and not connected with 
 
 its commencement, are not receivable to show 
 malice: Burton v. Knapp, 14-196. 
 
 275. Evidence that plaintiff, on the day 
 on which attachment was levied, said, con- 
 cerning the levy, that defendant therein 
 "had had his time, and now he [plaintiff] 
 would have his," held admissible to show 
 the wrongful suing out : White v. Beck, 64- 
 123. 
 
 276. Advice of counsel will go to rebut 
 the idea of malice, but it must be proved that 
 the party submitted his cause to the attorney, 
 and was by him advised that he had a right 
 to sue out an attachment. Proof of such ad- 
 vice may defeat the recovery of exemplary, 
 but not of actual, damages : Raver v. Web- 
 ster, 3-503. 
 
 277. It must appear that a full and fair 
 statement of the facts was made to the at- 
 torney: Porter V. Knight, 63-365. 
 
 f. Measure of damages; attorney fees; 
 exerrvplajry damages. 
 
 278. Expenses of defending: In an action 
 on the bond, either original or by way of 
 counter-claim, the party, if entitled to re- 
 cover at all, may recover all expenses in- 
 curred in making defense to the attachment 
 proceeding : Vorse v. Phillips, 37-428. 
 
 279. Attorneys' fees: In the absence of 
 any express statutory provision, the party 
 suing on an attachment bond cannot recover 
 as a pai't of the costs or expenses covered by 
 the bond, the fees of his attorney in prosecut- 
 ing such suit: Ibid. 
 
 280. Nor even his attorneys' fees on de- 
 fending against the principal suit : Plumb v, 
 Woodmansee, 34-116. 
 
 281. Attorneys' fees, how assessed: Un- 
 der the present statutory provision (Code, 
 S 2961) authorizing the recovery by a party 
 suing on an attachment bond of reasonable 
 attorneys' fees to be fixed by the court, the 
 jury have nothing to do with fixing the 
 amount of such fee. The better practice 
 would be not to introduce any evidence as to 
 the fee during the trial, but if, in answer to 
 a special interrogatory, the jury find that the 
 attachment was wrongfully sued out, then 
 evidence as to the amount of the fee should 
 be introduced to the court and a finding 
 made, and the amount so fixed should 
 
ATTACHMENT, IX, f. 
 
 isa 
 
 Measure of damages. 
 
 then be added to or deducted from the 
 amount found by the jury, as the case may 
 require : Selz v. Belden, 48-451. 
 
 282. Attorneys' fees constitute a part of 
 the costs, and the legislature may authorize 
 the court to fix the amount, without submit- 
 ting the question to a jury : Weller v. Halves, 
 4a-45. 
 
 , 283. A verdict for actual damages, in an 
 action on the bond, and a special finding that 
 the attachment was wrongfully sued out, are 
 Buflicient to wan-ant the allowance of an at- 
 torney's fee. That there was no reasonable 
 cause to believe the ground upon which the 
 attachment was issued to be true, is implied 
 in such verdict and sjiecial finding : NooMes 
 V. Eggspieler, 53-730. 
 
 284. In fixing the attorney's fee the court is 
 not to take into account the trial of the prin- 
 cipal case, but only the fee for prosecuting, 
 by original action or counter-claim, the cause 
 of action on the bond, on account of the 
 ■wrongful suing out of the attachment : Por- 
 ter V. Knight, 63-865. 
 
 285. Actual and not remote damages: 
 Where the suing out of an attachment was 
 not wilful and malicious, the damages recov- 
 erable are confined to actual compensation 
 for damages immediately consequent upon 
 the wrongful act: Plumb v. Woodmansee, 
 84^116. 
 
 286. Use: WhUe the pai-ty against whom 
 the attachment issues is entitled to compen- 
 sation for the loss sustained by reason of be- 
 ing deprived of the use of property levied on, 
 the value of this use must be predicated upon 
 the condition of the property when it was at- 
 tached and not upon what its condition was 
 before, or what it was intended to be in the 
 future: Ibid. 
 
 287. Value of goods: In an action on the 
 bond the true measure of the value of the 
 goods attached is the cost of replacing them 
 at the place where levied upon : Selz v. Bel- 
 den, 48-451. 
 
 288. The measure of damage is the fair 
 cash value of the property at the time when 
 it was wrongfully taken and interest thereon : 
 Porter v. Knight, 63-365. 
 
 289. The elements of damage to be con- 
 sidered include diminution in value of stock 
 by reason of the levy and the closing up or 
 stopping the business : also rent of store dur- 
 
 ing the time the business is stopped ; also loss 
 of employment during the interruption in 
 business if the debtor had been giving his 
 personal labor and attention to the business 
 and has been unable to obtain other employ- 
 ment : Lowenstein v. Monroe, 55-88. 
 
 290. The defendant in the attachment is 
 to recover such losses as he may have sus- 
 tained by reason of being deprived of the use 
 of the property levied on, and any injury 
 thereto by its loss or depreciation in value : 
 Ibid. ; Campbell v. Chamberlain, 10-337. 
 
 291. Injuries to character, or credit, or 
 business are too remote and speculative to be 
 considered: Ibid. 
 
 292. Loss of profits in the retail of the 
 goods is to be disregarded: Lowenstein v. 
 Monroe, 55-82. 
 
 293. Injuries to credit cannot be shown 
 as an element of damage : Mitchell v. Har- 
 court, 62-349. 
 
 291. Cliattel mortgage: Where property 
 levied on in attachment was taken from the 
 olScer under a prior chattel mortgage and 
 sold, the balance only in excess of the mort- 
 gage being turned over to the officer by vir- 
 tue of his levy, the damage for the wrongful 
 act in suing out the writ will be limited to 
 the balance paid the officer after the satisfac- 
 tion of the mortgage, and interest, and the 
 damages sustained by being deprived of the 
 property during its detention under the at- 
 tachment: Porter v. Knight, 68-365. 
 
 295. Eents: Where the rent cf a mill was 
 included in the claim for damages on the 
 bond given in an attachment sued out by the 
 landlord against the tenant on an independ- 
 ent indebtedness, held, that the tenant was 
 thereby barred from afterward setting up 
 the interruption of his possession as a defense 
 in an action for the rent, although the claim 
 on the bond had been interposed before the 
 entire damage had accrued and the whole 
 amount thereof was not then recoverable: 
 Davis V. Milburn, 4-246. 
 
 296. Attachment of property of wrong 
 party; trespass: Where the proceeding was 
 commenced against a firm and its mem- 
 bers, but the bond was to the firm only and 
 the writ was directed against firm pi-operty 
 only, held, that although the attachment was 
 wrongfully sued out, yet there could not be 
 a recovery on the bond by a member of the 
 
15i 
 
 ATTORNEY-GENERAL — ATTORNEYS, I. 
 
 Control of cases on appeal. — Authority of. 
 
 firm for damages caused to him by the levy 
 of the attachment on his property, for the 
 Teason that the levy was not authorized un- 
 der the writ and was a trespass by the ofiBcer 
 for which the plaintiff in attachment was 
 not liable on the bond : Mason v. Bice, 66- 
 174. 
 
 The attorney who acts in procuring an at- 
 tachment is not Uable for damages : See At- 
 torneys, § 83. 
 
 297. Exemplary damages: To entitle a 
 party to exemplary damages, it must appear 
 that the attaching plaintiff procured the at- 
 tachment without reasonable grounds to be- 
 lieve the truth of the matter stated in his 
 apphcation, and with the intention, design or 
 set purpose of injuring the defendant therein : 
 ■Gaddis v. Lord, 10-141 ; Raver v. Webster, 
 3-503. 
 
 298. Something more must be made to ap- 
 pear than that the ground alleged for the 
 attachment did not exist, and that attaching 
 plaintiff had no ground to believe it did. 
 These facts must be proven to establish the 
 right to recover actual damages. To recover 
 exemplary damages it must be shown that 
 plaintiff acted with the intention, design or 
 set purpose of injuring him: Nordhaus v. 
 Peterson, 54-68. 
 
 299. There cannot be a recovery of exem- 
 plary damages where actual damages are not 
 recoverable : Myers v. Wright, 44-38 
 
 g. Judgment on iond. 
 
 300. Not binding on sureties: A judg- 
 ment on the bond, in an action to which the 
 sureties are not parties, is not binding upon 
 them : Bunt v. Rheum, 53-619. 
 
 ATTORNEY-GENERAL. 
 
 1. Control of cases on appeal: When a 
 ■criminal case is appealed to the supreme 
 ■court, the attorney-general obtains control of 
 it, but any agreements made by the district 
 attorney while the case is in the lower court, 
 are binding as against the attorney-general 
 (Code, §§ 150, 305): State v. Fleming, 13- 
 443. 
 
 ATTORNEYS. 
 
 I. AUTHORITY ; HOW FAR CLIENT BOUND BY 
 ACTS. 
 
 II. Duties and liabiuttes. 
 
 III. Compensation. 
 
 a. Contract for; who liable for. 
 
 b. Champerty; contingent fee. 
 
 c. Liability of county for services in 
 
 prosecuting and defending. 
 
 d. lAen. 
 
 IV. Taxation op attorneys' pees as costs 
 
 OK RECOVERY AS DAMAGES. 
 
 V. Misconduct; suspension; disbarment; 
 
 CONTEMPT. 
 
 VI. Attorney as witness. 
 
 As to privileged communications, see Evi- 
 dence, III, 7, d. 
 
 I. AUTHOEITY ; HOW FAE CLIENT BOUND 
 BY ACTS. 
 
 1. Before bringing suit: An attorney 
 may be employed in contemplation of a suit 
 to be brought, and his client will be bound 
 by his stipulations with reference thereto, to 
 the same extent as if such stipulations had 
 been made after the bringing of suit : Heffer- 
 man v. Burt, 7-320. 
 
 2. Granting extension: Where the attor- 
 ney was directed to " secure or collect " the 
 claim, held, that he had authority to ex- 
 tend the time of payment on receiving addi- 
 tional security: Crawford v. Nolan, 70 . 
 
 3. To carry on suit; presumption: A 
 regular attorney has authority to bring a 
 suit and continue it to its final determination. 
 He cannot be called upon to prove his author- 
 ity, but the want of it must be shown by the 
 objecting party : State v. Carothers, 1 G. Gr., 
 464. 
 
 4. Agreement for judgment and stay: 
 An attorney appearing for a party may make 
 an agreement in writing for judgment and 
 an extension of time of payment : Potter v. 
 Parsons, 14-286. 
 
 5. Collection of judgment; satisfaction: 
 The authority of an attorney with respect to 
 a claim does not terminate with the ren- 
 dition of judgment, but he may control 
 the judgment until its collection: Death v. 
 Bank of Pittslmrg, 1-383; and he has au- 
 
ATTORNEYS, I. 
 
 165 
 
 Authority of. 
 
 thority to receive payment and enter satie- 
 f action of the judgment ; McCarver v. Nea- 
 ley, 1 G. Gr., 360. 
 
 (>. On r.ppeal: An attorney retained to 
 attend to a suit in a particular court is not 
 thereby authorized without further author- 
 ity to appeal the case, and cannot recover, 
 under such circumstances, for services ren- 
 dered in the appellate court: Hopldns v. 
 Mallard, 1 G. Gr., 117. 
 
 7. Employment of another attorney: 
 An attorney intrusted with the business of 
 his principal has no authority to employ 
 another attorney to represent his principal, 
 and the latter will not be liable for costs in- 
 curred by the attorney thus employed : An- 
 trdtms V. Sherman, 65-230. 
 
 8. Although one attorney may not have 
 authority to turn over a case to another, yet 
 where by reason of reliance on an agreement 
 with such second attorney the adverse attor- 
 ney was not present when the case was called 
 and a judgment was recovered by default, 
 held, there was sufficient surprise to warrant 
 a new trial: Chicago & N. W. R. Co. v. 
 Oillett, 38-434. 
 
 9. Contract to turn over business: An 
 attorney to whom notes have been intrusted 
 for collection has no authority to turn them 
 over to another for that purpose, and a con- 
 tract to do so is illegal, so that damages can- 
 not be recovered for its breach : Smalley v. 
 ■Greene, 52-241. 
 
 10. Compromise: An attorney cannot, 
 without express authority, make a com- 
 promise which will operate injuriously upon 
 his client: Be Louis v. Meek, 2 G. Gr., 55; 
 Powell V. Spaulding, 3 G. Gr. , 443. 
 
 11. Where an attorney, retained in an 
 action to recover possession of real property, 
 entered into a contract that his client should 
 pay defendant a specified sum, whereupon 
 defendant should surrender possession, held, 
 that such agreement was not binding upon 
 the client and that he could recover without 
 payment of the sum stipulated: Stuck v. 
 Meese, 15-122, 
 
 12. Agreement of client not to compro- 
 mise: A construction of a contract between 
 an attorney and client which would prevent 
 settlement of the suit by the client will not 
 be favored by the courts : Ellwood v. Wilson, 
 31-523. 
 
 13. Agreement to convoy land: An agree- 
 ment by attorney for plaintifE in an action of 
 right, for conveyance of a portion of the 
 premises, held, not binding on the client: 
 Rayhum v. Kuhl, 10-93. 
 
 14. ConiisromisB ; judgment by consent: 
 Where an attorney has, in good faith, com- 
 promised the suit and consents to judgment 
 against his client, the latter cannot, after- 
 ward, in an action in another state on such 
 judgment, defend on the ground of want of 
 authority in the attorney to make the com- 
 promise : Crawford v. White, 17-560. 
 
 15. May receive money only in payment: 
 An attorney has no authority to receive any- 
 thing but money in payment of a claim left 
 with him for collection, unless specially 
 so authorized: Drain v. Doggett, 41-682; 
 McCarver v. Nealey, 1 G. Gr. , 360. 
 
 16. An attorney who has a claim for col- 
 lection has no power, in the absence of 
 special authority, to receive anything but 
 money in payment of the claim, nor has he 
 the power to accept as payment a less amount 
 of money than the whole sum due. If it is 
 sought to prove that an attorney has been 
 given special power not embraced in his 
 employment, it must be established in 
 the same way that the authority of other 
 agents must be shown, but cannot be 
 shown by his declarations: Bigler v. Toy, 
 68-687. 
 
 17. Affidavits, Teriflcation of pleadings, 
 etc. : An attorney may make affidavit on an 
 appUcation of his client for change of venue : 
 State V. Mooney, 10-506 ; or for continuance : 
 Widner v. Hunt, 4-355. 
 
 18. The attorney may verify a petition 
 where he shows a knowledge of the facts: 
 Chittenden v. Hohhs, 9-417 ; Bates v. Robin- 
 son, 8-318. 
 
 19. But if the knowledge of the attorney is 
 not shown, the verification is insufficient: 
 Clute V. Hazleton, 51-355. 
 
 See, generally. Pleadings, II. 
 
 20. Authority to sign bond: Where the 
 lower court upheld an attachment bond 
 signed by the attorney for his client, held, 
 that on appeal it woiild be presumed that it 
 appeared to the lower court that the attorney 
 had such authority, in the absence of any 
 showing to the contrary: Goddard v. Cun- 
 ningham, 6-400. 
 
156 
 
 ATTORl^EYS, I. 
 
 Authority of. 
 
 21. Action by attorney in liis own name: 
 
 It seems that it is not unusual nor improper 
 for an attorney to whom a claim has been 
 Bent for collection, to bring action thereon in 
 his own name : Seevers v. Hamilton, 6-199. 
 
 22. Recovery back of money paid over: 
 In such a case, the money collected on the 
 judgment thus recovered having been paid 
 to the client, held, that the attorney could not 
 recover back from the client the amount thus 
 paid over, upon being compelled to refund 
 the sum collected on account of irregulari- 
 ties in the proceeding in which the judgment 
 was recovered, unless he could put the client 
 in statu quo as to the original claim: Ibid. 
 
 Appearance by attorney, see Appbaeance, 
 §§ 6-16. 
 
 23. Want of authority; how raised : Ab- 
 sence of authority on the pai-t of plaintiff's 
 attorney to bring a suit may be a ground for 
 dismissing it, or, if the attorney wants time 
 in order to make a showing of authority, for 
 continuance, but it cannot be taken advan- 
 tage of as a ground to defeat recovery: 
 Savary v. Savary, 3-371. 
 
 24. The showing to require an attorney to 
 prove his authority, held insufficient in a 
 particular case : Savery v. Savery, 8-217. 
 
 25. A judgment by default entered against 
 a defendant upon an appearance for him by 
 attorney, which is made without authority 
 and by mistake, should be set aside : Rice v. 
 Griffith, 9-539. 
 
 26. Where a demurrer is filed without au- 
 thority and a valid appearance is afterward 
 made, a new demurrer may be filed : Winter- 
 stien V. Walker, 10-198. 
 
 27. Katiflcation by claiming benefit of 
 plea: A party claiming the benefit of a plea 
 put in by an attorney cannot deny the au- 
 thority of such attorney to act in the case : 
 OUrogge v. Schutte, 51-279. 
 
 28. Katiflcation inferred from long 
 silence: Where an attorney accepted part 
 payment in full satisfaction of a judgment 
 procured for his client, and no further steps 
 were taken for the enforcement of said judg- 
 ment for eleven years, held, that it would be 
 inferred that the attorney had authority to 
 make such settlement or that the client was 
 informed of his actibn, if without authority, 
 and had by long silence ratified it: Beid v. 
 Dickinson, 37-56, 
 
 29. Ratification by paying attorney: The 
 
 client, having ratified the act of the attorney 
 appearing for him by paying him for his 
 services, is bound by the judgment : Ryan v. 
 Doyle, 31-53. 
 
 30. Client cliargeahle with frand of at- 
 torney : An attorney, when acting in court 
 procedure for his client, acts in his stead, 
 and a judgment recovered may be set aside 
 for fraudulent representations made by the 
 attorney in procuring it, when such i-epre- 
 sentations would have been a gi'ound for set- 
 ting it aside if made by the party himself ; 
 De Louis v. Meek, 2 G. Gr., 55. 
 
 31. Client chargeable with negligence of 
 attorney: The law regards the negligence of 
 an attorney as the client's own neglect, and 
 will give no relief from the consequences 
 thereof : Jones v. Leech, 46-186. 
 
 32. Negligence of attorney's clerlf: Neg- 
 Hgence of the clerk of the attorney, in filing 
 pleadings, must be imputed to the client him- 
 self : Hayward v. Goldsbury, 63-436. 
 
 33. Negligence in failing to prosecute 
 action; default: The negligence of the at- 
 torney is imputed to the client, when it is 
 sought to set aside default where verdicts or 
 judgments binding upon the parties have 
 been entered, but not where the action has 
 merely been dismissed for want of prosecu- 
 tion : Byington v. Quincy, 61-480. 
 
 34. Setting aside judgment for mistake 
 of attorney: While the law exacts of at- 
 torneys diligence in their business, and will 
 not relieve against their negligence, yet relief 
 may be granted where mistake has occurred 
 without fault. Attorneys are not required 
 to be diligent and careful beyond the capac- 
 ities of human nature : Buena Vista County 
 V. Iowa Falls & S. O. R. Co., 49-657. 
 
 35. Notice to attorney: Knowledge of the 
 attorney is, in general, considered notice to 
 the client: De Louis v. Meek, 3 G. Gr., 55. 
 
 And see Agency, III, d. 
 
 36. Service upon attorney: In ordinary 
 actions service upon an attorney is not suf- 
 ficient to give a court jurisdiction: Death v. 
 Bank of Pittsburg, 1-382. 
 
 37. In actions to enjoin judgment; 
 chancery rule: Under the English chancery 
 practice, where the judgment plaintiff was a 
 non-resident, service in an action in equity to 
 enjoin the collection of the judgment might 
 
ATTORNEYS, L 
 
 157 
 
 Authority of. 
 
 be made upon a resident attorney having 
 charge of such collection; but under our 
 procedure such an action might be brought 
 to enjoin the sheriff from levying execution 
 under the judgment : Ibid. 
 
 38. Acceptance of seryice ; in-esumptlon: 
 Wliere tlie record recites an acceptance of 
 service by attorney, it will be presumed, in 
 favor of the judgment, that authority to 
 accept service existed, or that som.e other 
 form of service was shown : Prince v. Grif- 
 fin, 16-552. 
 
 39. Appearance of authorized attorney 
 cures any defect by reason of want of author- 
 ity in^ such attorney to accept service of the 
 notice: Fanning v. Minnesota R. Co., 37-379. 
 
 40. Appearance; presumption: Although 
 the attorney cannot, without special author- 
 ity, admit service of jurisdictional process 
 upon his client, yet it will be presumed, in 
 all collateral attacks and perhaps on appeal or 
 writ of error, that a regular attorney who 
 appeared for a defendant, though not served, 
 had authority to do so: Harshey v. Black- 
 marr, 20-161. 
 
 41. In action on foreign judsment: But 
 in an action upon a foreign judgment the 
 defendant in the judgment may successfully 
 contest it by showing that the attorney enter- 
 ing an appearance for him, without service 
 having been made, did so without authority : 
 lUd. 
 
 42. In action on domestic judgments; 
 laches: In case of a domestic judgment ren- 
 dered upon such unauthorized appearance 
 and without service, the party against whom 
 the judgment is thus improperly rendered is 
 entitled to rehef if the judgment is unjust 
 and relief is sought by bill or motion without 
 laches ; but the party must promptly disavow 
 the action of the attorney upon receiving 
 knowledge thereof : Ihid. 
 
 43. Attacking foieclosure ; redemption: 
 A junior lien holder may, for the purpose of 
 establishing his right to redeem from the 
 foreclosure under a senior mortgage to which 
 it was sought to make him a party, show 
 that although the decree recites service upon 
 him, it was actually rendered upon accept- 
 ance of service and appearance by an attor- 
 ney without authority, and this may be 
 shown as against third persons purchasing 
 at the sale : Newcomb v. Dewey, 27-381. 
 
 44. Judgment on unauthorized appear- 
 ance void: A judgment rendered without 
 service of notice and upon appearance by at- 
 torney without authority is void : Maoomber 
 V. Peck, 39-351. 
 
 45. Attorney exceeding' authority: The 
 right to contest a judgment, on account of 
 want of authority of the attorney appear- 
 ing for a defendant not served, exists only 
 when the want of authority is total, and not 
 where an attorney, regularly employed, has 
 merely exceeded his authority: Harshey v. 
 Blaclanarr, 20-161. 
 
 4G. Foreign judgment; equitable defense: 
 When want of authority Of attorney to en- 
 ter appearance is made the ground of an 
 equitable defense in an action on a foreign 
 judgment, it should be alleged also that de- 
 fendant is not indebted to plaintiff on the 
 claim on which the judgment was based: 
 Crawford v. White, 17-560. 
 
 47. Appearance; presumption; injury: 
 The appearance of an attorney for a party is 
 prima facie evidence of authority, and be- 
 fore his act can be avoided, injury resulting 
 from the unauthorized appearance must be 
 shown: Piggott v. Addiclcs, 3 G. Gr., 427. 
 
 48. Defense should be shown : A party, 
 seeking to have a judgment set aside on the 
 ground that it was rendered on appearance 
 by an attorney without authority, should al- 
 lege and show a defense to the claim : Bus- 
 sell V. Pottawattamie County, 29-256. 
 
 49. Presumption; burden of proof; 
 amount of evidence: Where the record 
 shows appearance by attorney, a party at- 
 tacking the judgment, on the ground of want 
 of authority of the attorney to appear, must 
 overcome such presumption: Potter v. Par- 
 sons, 14-286; and must do so by clear and 
 satisfactory evidence : Wlieeler v. Cox, 56-36 ; 
 Bussell V. Pottawattamie County, 29-356. 
 
 50. Authority, evidence of: Authority to 
 appear, held sufficiently established by the 
 attorney's own testimony and a written re- 
 ceipt signed by the party for whom appear- 
 ance was made, acknowledging receipt of 
 money collected by the litigation, although 
 the party himself testified that no such 
 authority was given: Ellis v. White, 61-644. 
 
 51. Where the statement of the attorney 
 in showing his authority discloses the fact 
 that he is acting on written authority, he 
 
158 
 
 ATTORNEYS, I, II. 
 
 Authority of. — Duties and liabilities. 
 
 may properly be required to produce it : State 
 ex rel. v. Tilghman, 6-496. 
 
 52. An affidavit of an attorney, that he ap- 
 peared in the lower court for defendant, can- 
 not be received on appeal to shovs^ that the 
 lower court had jurisdiction : Stout v. Fort- 
 ner, 7-183. 
 
 53. Authority not questioned on appeal: 
 Where the record, without setting out the 
 evidence, shows that the lower court was 
 satisfied by affidavit of the authority of the 
 attorney to appear, the ruling will not be 
 disturbed on appeal : Huston v. Stringham, 
 21-36. 
 
 64. The authority of the attorney cannot 
 be first questioned by his client on appeal, 
 when he has acquiesced in his actioil in the 
 court below : Hefferman v. Burt, 7-330. 
 
 55. Fraud of attorney In accepting re- 
 tainer: The malfeasance of an attorney in 
 accepting a retainer for one party, after hav- 
 ing previously been enaployed by the other, 
 the fact being kuovra to the first client from 
 the time of the wrongful act, will not con- 
 stitute fraud, vitiating the judgment recov- 
 ered for the second client against the fii-st : 
 Humphrey v. Darlington, 15-207. 
 
 56. Stipulations of attorney: Stipulations 
 made in open court by an attorney of record 
 in the case, and while the case is pending, 
 if free from fraud and mistake and clearly 
 established, will be enforced by the court: 
 Lockwood V. Black Hawk County, 34-235. 
 
 57. Agreement of record; statute : Under 
 a statute (Code, § 213) requiring evidence of 
 an agreement by an attorney, binding his 
 client, to be in writing, signed and filed with 
 the clerk, or by an entry of record, held, that 
 a nunc pro tunc record of such agreement, 
 made a year after the agreement was entered 
 into, and upon affidavits, after a dispute had 
 arisen with reference to the agreement, was 
 not sufficient : Hitler v. Landis, 44-223. 
 
 58. Where a new trial was asked on the 
 ground of an agreement of the opposite at- 
 torney that the cause should not be tried that 
 week, held, that as the agreement was denied 
 by the attorney and did not appear to have 
 been made of record and signed by the at- 
 torney, or made in open court and entered of 
 record, the motion could not be granted: 
 Barnes v. Ennenga, 53-497. 
 
 59. Under the same statutory provision, 
 
 held, that an agreement of the attorney that 
 a case should be presented to the supreme 
 court upon an abstract, waiving a transcript 
 of the evidence, could not be enforced, if de- 
 nied, unless in v^riting or of record : Preston 
 V. Hale, 65-409. 
 
 60. The facts appearing from an affidavit 
 of the attorney of a party, held sufficient to 
 establish implied consent to the determina- 
 tion of a cause in vacation : Myers v. Funk, 
 51-92. 
 
 61. While the client might bind himself by 
 a stipulation in the case, his affidavit is not 
 receivable as evidence of an agreement . by 
 his attorney binding him: Sapp v. Aiken, 
 68-699. 
 
 Authority of district attorney: See Dis- 
 trict Attorney. 
 
 II. Duties and liabilities. 
 
 62. Contract for contingent fee: If the 
 
 attorney visits the client for the purpose of 
 entering into a contract of employment, it is 
 his duty, before making the contract, to dis- 
 tinctly and clearly advise the client as to all 
 the facts and circumstances witliin his knowl- 
 edge relating to the case. So held in regard 
 to a contract for a share of the amount to be 
 recovered as a contingent fee : Ryan v. Ash- 
 ton, 42-365. 
 
 63. Purchase of client's property: While 
 the relation exists, an attorney is not per- 
 mitted to take advantage of the client's 
 affairs, against his interest, to make money. 
 This rule forbids the attorney to purchase, 
 against the interest of his client, property 
 sold in the course of litigation in which he is 
 retained, and such a sale will be held void, 
 or the attorney will be held as the trustee of 
 his client and be required to account as such : 
 Harper v. Perry, 28-57. 
 
 64. An attorney who procures in himself 
 legal title to property of which his client is 
 owner, holds the property in trust for his 
 client : Byington v, Moore, 62-470. 
 
 63. Conveyance to attorney: A convey- 
 ance from client to attorney will be set aside 
 whenever advantage has been taken of the 
 client through the influence or knowledge of 
 the attorney possessed by reason of their 
 peculiar relations: Poison v. Young, 37-196. 
 
 66. Purchase of property under execu- 
 tion; trustee: An attorney buying in prop- 
 
ATTORNEYS, II. 
 
 159 
 
 Duties and liabilities. 
 
 erty at a sale, under a judgment secured by 
 him, will be presumed to do so for the bene- 
 fit of his client, and to hold only as trustee : 
 Reickhoff v. Brecht, 51-633. 
 
 G". Tax title on client's property; 
 trustee : An attorney who is acting as agent 
 of the owner with respect to property, and 
 has money in his hands derived from the 
 property, buying in the property at tax sale, 
 wUl be held to have acquired the same in 
 trust for such owner, and cannot take and 
 hold, as against his principal, a tax deed, 
 although the principal is negligent in reim- 
 bursing him for his expenses in acquiring 
 such title, unless he has first made a full and 
 fair statement to his principal of the account 
 between them, and of the amount necessary 
 to reimburse him: Continental L. Ins. Co. 
 V. Perry, 65-709. 
 
 68. Attorney not held as trustee; bad 
 faith of client: Good faith and fairness is 
 also required of the client in his relations 
 with the attorney, and an attempt of the 
 former to defraud the latter will authorize 
 the latter to sever the relation and act for 
 the protection of his own interests : Eekrote 
 V. Myers, 41-324. 
 
 69. Where the attorney, having procured 
 a decree of foreclosure for his cUent, and 
 demanded the payment of his fees and ad- 
 vances without avail, bought in at tax sale 
 the property covered by the decree and noti- 
 fied his client of that fact, still urging pay- 
 ment, which was not made, held, that a tax 
 deed, subsequently taken by him in pursuance 
 of the sale, could not be set aside seven years 
 afterward at the suit of the client : Ibid. 
 
 70. Where the attorney, after in vain re- 
 questing payment of his fees by his client, 
 by consent of the client caused property to 
 be sold under his client's judgment, and 
 bought the same at the sale, he^d, that such 
 purchase was not fraudulent : Page v. Stubbs. 
 39-587. 
 
 71. The fact that an attorney retains in his 
 possession papers relating to a transaction af- 
 fecting land, under a claim of a lien on such 
 papers for services, does not continue his re- 
 lation as attorney of the owner in such sense 
 as to defeat a tax title acquired thereon by 
 him after the performance of his duties with 
 reference to the matter is entirely com- 
 pleted : Baker v. Davis, 85-184. 
 
 72. Liability for interest and rents; de- 
 mand: An attorney is not ordinarily lia- 
 ble for interest on money collected by him 
 until demand therefor is made; nor is he 
 liable for rent of property bought in by him in 
 his own name at execution sale under a judg- 
 ment in behalf of his client, where such pur- 
 chase is not in fraud of his client's rights :. 
 Johnson V. Semple, 31-49. 
 
 73. But the commencement of suit to re- 
 cover money in the attorney's hands consti- 
 tutes sufficient demand to authorize the 
 allowance of interest from that time : Hollen- 
 beckv. Stanberry, 88-335. 
 
 74. The attorney is not liable for interest 
 on money if kept on hand for his client or de- 
 posited in bank to the client's credit, but if 
 used by the attorney he is liable for interest : 
 Mansfield v. Wilkerson, 26-482. 
 
 75. Estopped by fraud or negligence: An 
 attorney who obtains a judgment for his 
 client which is void for want of service of 
 notice, due to his own culpable negligence or 
 fraudulent intention, and allows the client, 
 in ignorance of the defect, to purchase prop- 
 erty at execution sale under such judgment, 
 is estopped as against the client from assert- 
 ing title to the same property acquired from 
 the execution defendant, even after the rela- 
 tion of attorney and client has ceased. In, 
 such case whatever title is acquired by the 
 attorney inures to the benefit of his former 
 client : Phillips v. Blair, 38-649. 
 
 76. Retainer against opinion: While an 
 attorney ought not to accept a retainer in a 
 case where he feels that the law is against 
 his client, yet the fact that he has, under a 
 prior retainer, advocated views of the law 
 and facts different from those upon which 
 his client rests his cause, or has ofScially, as 
 a judge or oificer of the government, held a 
 different view of the rights of the parties, will 
 not, of itself, disqualify him to accept a re- 
 tainer ; and it will not constitute fraud on his 
 part not to reveal to his client the fact of 
 such prior opinion: Smith v. Chicago & N. 
 W. R. Co., 60-515. 
 
 77. Not liable for exercise of discretion : 
 Where an attorney was employed with the 
 understanding that he was to use his best 
 judgment as to the steps necessary to be 
 taken in the case, held, that he was not liable- 
 in an action for damages, in view of the care 
 
160 
 
 ATTORNEYS, U, III, a. 
 
 Duties and liabilities. — Compensation. 
 
 taten in the particulai- case: Bennett v. 
 Phillips, 57-174. 
 
 78. Lial)i;ity for officers' fees; eyidence; 
 cnstom : An attorney is not liable to a sheriff 
 for fees for services performed for the client 
 at the request of the attorney, and held, in 
 such case, that evidence was not admissible 
 to pi'ove a custom among attorneys to become 
 responsible in such cases : Doughty v. Paige, 
 48-483. 
 
 79. Liability on bond for costs, etc.: 
 Under a statute (Code, § 2931) providing that 
 no attoi-ney shall be received as security in 
 any proceeding in court, held, that althoiigh 
 an officer might refuse to accept an attorney 
 as security, yet if he tenders himself and is 
 accepted, he cannot escape liability on the 
 ground of being an attorney: Wright v. 
 Schmidt, 47-333. 
 
 89. This provision, though found among 
 the sections of the Code relating to security 
 for costs, relates not only to bonds for costs, 
 but to injunction, attachment and other 
 bonds : Massie v. Mann, 17-131. 
 
 81. Liiibility for trespass: An attorney 
 cannot be held liable for the wrongful seizure 
 of property in the suit in which he acts, un- 
 less his acts or directions are shown to have 
 in some way caused the seizure: Bice v. 
 Melendy, 41-395. 
 
 83. An attorney who simply obeys the in- 
 structions of his client in directing the seiz- 
 ure of property under attachment is not 
 liable therefor. It is immaterial that he has 
 neither belief nor suspicion as to the owner- 
 ship of the property and seeks no informa- 
 tion with respect thereto : Dawson v. Buford, 
 70 . 
 
 83. Not jointly liable with client: An 
 attorney who has acted as a mere agent for 
 his client should not be made a party to a 
 suit against his client in i-egard to acts so 
 done, unless he is charged with fraud : Dyon 
 V. Tevis, 8-79. 
 
 81-. If the attorney is thus improperly 
 made a party defendant, he is entitled to be 
 dismissed with costs: Paton v. Lancaster, 
 38-494. 
 
 III. Compensation. 
 a. Gonf-ract for; who liable for. 
 
 85. Surety not liable for, to principal's 
 attorney: One who is a party to an action 
 
 and interested in the result, as a surety in an 
 action to which his principal is party, will 
 not, for that reason alone, be liable for the 
 compensation of an attorney rendering serv- 
 ices for the principal, but his liability must 
 be proven by evidence of retainer or recogni- 
 tion as attorney of the party sought to be 
 charged : Turner v. Myers, 23-391. 
 
 86. Evidence as to value of services: In 
 an action to recover the value of professional 
 services, evidence as to the success attending 
 the rendition of such services is admissible: 
 Berry v. Davis, 34-594. 
 
 87. Under the general custom of the pro- 
 fession, the values in controversy control 
 charges for services. Therefore, in an action 
 by an attorney to recover for services ren- 
 dered, held error to instruct the jury that 
 the magnitude of the controversy and the 
 great value of the property involved should 
 not be considered in determining the amount 
 of recovery : Smith v. Chicago & N. W. B. 
 Co., 60-515. 
 
 88. Contract for services in another 
 state: Wliere an attorney is employed in this 
 state to render services in another state, the 
 rate of compensation is to be determined ac- 
 cording t6 the value of the services at the 
 place where the contract is made : Stanberry 
 V. Dickerson, 35-493. 
 
 80. Liability of hnsband for fee of wife's 
 attorney in divorce snit; necessaries: The 
 husband is liable for services rendered by at- 
 torney for the wife for establishing the inno- 
 cence of the latter on a charge of adultery 
 made by the husband in an action for divorce. 
 Such services are deemed necessaries : Porter 
 V. Briggs, 38-166. 
 
 90. But the husband is not liable for wife's 
 attorneys' fees in a suit brought by the wife 
 for divorce where it is not shown that such 
 services come within the scope of necessaries : 
 Johnson v. Williams, 3 G. Gr., 97. 
 
 91. Contract for excessive fees; Nothing 
 but the best of reasons will justify an attor- 
 ney in exacting from his client, after the 
 work is partially completed, an agreement to 
 pay more than an ordinary fee under a threat 
 of withdrawing from the case if such agree- 
 ment is not made : Bolton v. Daily, 48-348. 
 
 92. Implied contract: Where an attorney 
 was employed by one of several defendants, 
 and rendered services in the case for all, with 
 
ATTORNEYS, III, b, c. 
 
 161 
 
 Champerty; contingent fee. — Liability of county for services. 
 
 the knowledge and implied consent of the 
 others, held, that a recovery for services ren- 
 dered might be had by such attorney as 
 against all the defendants, although by con- 
 tract between them, not known to the attor- 
 ney, the one employing him was to bear the 
 entire expense of attorney fees: McCrary 
 V. Ruddick, 33-521. 
 
 93. Additional attorney; bound by con- 
 tract: Where an attorney contracted to 
 prosecute the case for a given sum, and 
 afterward turned the case over to another 
 attorney, stating to the client that he had 
 taken the second attorney into the case with 
 him, held, that in the absence of any other 
 knowledge on the part of the client as to the 
 relation of the second attorney to the case, 
 the latter could not recover more than the 
 contract price : Ennis v. Hultz, 46-76. 
 
 b. Champerty; contvngent fee. 
 
 94. Expense; share of recOTery: The 
 
 mere agreement for a contingent fee is not 
 champertous. To constitute champerty the 
 agreement on the part of the champertor 
 must be to carry on the suit at his own ex- 
 pense, as well as for a share of the recovery : 
 Jewel V. Neidy, 61-299. 
 
 95. Neither is it champertous for a person 
 who is a party in interest, and not an offi- 
 cious promoter of another's strife, to agree to 
 bear the expenses of litigation ; and an attor- 
 ney agreeing to carry on the litigation for a 
 proportion of the recovery, knowing that the 
 costs are thus to be paid by a party in in- 
 terest, is not guilty of champerty : Ihid. 
 
 96. Champerty and maintenance: There 
 being no statute in this state against cham- 
 perty or maintenance, and there being no 
 necessity for enforcing the English doctrine 
 on the subject, that doctrine is not deemed 
 in force here: Wright v. Meek, 3 G. Gr., 473. 
 
 97. But this last case is seriously ques- 
 tioned in Boardman v. Thompson, 3.'5-487. 
 
 98. Continsrent fee; against public pol- 
 icy: A contract by which the attorney was 
 to receive a per cent, of the amount recov- 
 ered by the client in the suit or on settle- 
 ment, the attorney to advance costs and 
 expenses to be paid out of the recovery, and 
 the client agreeing not to settle without the 
 attorney's consent, held void as against public 
 policy: Ibid. 
 
 Vol. I — 11 
 
 99. But a mere contract for a contingent 
 fee, without stipulation against settlem^ent 
 by client or for advancement of costs by at- 
 torney, is valid : McDonald v. Chicago & N. 
 W. E. Co., 29-170. 
 
 100. Agreement not tcr compromise: An 
 agreement between attorney and client, by 
 which the latter binds himself not to com- 
 promise or settle the claim without the at- 
 torney's consent, is not favored : Ellwood v. 
 Wilson, 21-523 ; Boardman v. Thompson, 25- 
 487. 
 
 101. Contract of attorney to bold client 
 harmless: A contract between attorney and 
 client, that the former wUl hold the latter 
 harmless from any judgment to be recovered 
 against him provided he will appeal the case, 
 is against public policy and void: Adye v. 
 Hanna, 47-364. 
 
 102. Champerty not a defense: The fact 
 that an action is being prosecuted under a 
 champertous contract cannot be set up as a 
 defense therein : Allison v. Chicago & N. W. 
 R. Co., 42-274; Small v. Chicago, R. I. & P. 
 R. Co., 55-582. 
 
 Further as to champerty and maintenance, 
 see Contracts, §§ 334-331. 
 
 0. Liability of county for services in 
 prosecui/mg and defending. 
 
 103. Defense of criminal: An attorney 
 appointed by the court to defend a pauper 
 prisoner may maintain action against the 
 county for compensation for such services 
 although under the statute no provision for 
 such compensation is made (overruling 
 Whicher v. Cedar County, 1 G. Gr., 317): 
 Hall V. Washington County, 3 G. Gr., 473. 
 
 104. The provisions of the statute (Code, 
 § 3839) limiting the amount which an attor- 
 ney shall receive in such oases are not un- 
 constitutional : Samuels v. Dubuque County, 
 18-536. 
 
 105. No duty is hereby imposed by statute 
 upon an attorney appointed to defend a crim- 
 inal, to present the case to the supreme court, 
 but if, in the exercise of his discretion, he 
 does appear there, the statute provides a 
 compensation shall be paid him by the county. 
 The amount of such compensation is not to 
 be what his services would have been rea- 
 sonably worth in case he had been employed 
 by the county, but an enlarged compensa. 
 
162 
 
 ATTOENEYS, lU, o. d. 
 
 Liability of county for services. — Lien. 
 
 tion, graded on a scale corresponding to the 
 prices fixed for a trial in the district court. 
 Therefore, held, that -an allowance of $25 for 
 arguing the case in the supreme court was 
 proper : Baylies v. Polk County, 58-357. 
 
 10(5. Assisting in prosecution: The dis- 
 trict attorney cannot render the county liable 
 for services of an additional attorney em- 
 ployed by him to aid in criminal prosecu- 
 tions: Tatlook V. Louisa County, 46-138; 
 Foster v. Clinton County, 51-541. 
 
 107. The board of supervisors may employ 
 counsel, in addition to the district attorney, 
 to prosecute criminal cases: Hopkins v. 
 Clayton County, 83-15. 
 
 108. A county can be made liable to pay 
 for additional counsel, only as the board of 
 supervisors has determined such counsel to be 
 necessary. The court cannot, at the request 
 of the district attorney, appoint assistant 
 counsel and thereby bind the county to pay 
 therefor, at least unless on account of the 
 absence of the disti-ict attorney, and in order 
 to prevent the failure of justice : Seaton v. 
 Polk County, 59-636. 
 
 109. In the absence of the district attorney 
 the county may appoint a special prosecutor, 
 but as to whether in such case the county is 
 rendered liable for his compensation the 
 court were equally divided: White v. Polk 
 County, 17-413. 
 
 110. Recovery against county for services 
 rendered on appointment of court to assist 
 in the prosecution in a particular case, held 
 proper : Curtis v. Cass County, 49-481. 
 
 111. It maybe that in proper cases the 
 court may appoint and require a member of 
 the bar to appear and represent the state in 
 a habeas corpus proceeding, although no 
 compensation therefor is provided: Miller 
 V. Buena Vista County, 68-711. 
 
 112. The district attorney being the repre- 
 sentative of the state in habeas corpus cases, 
 the judge or court has no authority in such 
 cases to appoint an attorney to represent the 
 state and thereby render the county liable 
 for his services, where the notice required by 
 law of the bringing of the habeas corpus 
 
 proceeding has not been served upon the 
 district attorney. Whether, when the dis- 
 trict attorney has been duly notified and has 
 failed to appear, the judge may appoint an 
 attorney to represent the state and thereby 
 render the county liable for his services, 
 qucere: Ibid. 
 
 113. A justice of the peace has no power 
 to appoint an attorney to prosecute a crim- 
 inal action in behalf of the state, and no 
 compensation can be recovered by reason of 
 such an appointment : Davis v. Linn County, 
 34-508. 
 
 114. Employment by county: A county 
 has undoubted authority, through its board 
 of supervisors, to employ counsel, and will 
 be bound by a contract made for that pur- 
 pose, even though it be not- entered on the 
 records of the board. Such contract may be 
 proved by parol : Jordan v. Osceola County, 
 59-388. 
 
 115. The county judge, when that office 
 existed, had the power, and it was his duty, 
 to employ the services of an attorney when- 
 ever he thought such services were needed, 
 and he might pay a reasonable compensation 
 therefor out of the county treasury : Chicka- 
 saw County V. Bailey, 13-435. 
 
 116. Services in liquor prosecutions: 
 Under the provisions of Code, g 3839, the 
 county is not liable for fees of attorney ap- 
 pearing before a justice of the peace in a 
 prosecution for illegal sale of intoxicating 
 liquors, unless he was selected for that duty 
 by the peace officer filing the information 
 (under Code, § 1551): Blair v. Dubuque 
 County, 37-181 ; Foster v. Clinton County, 
 51-541. 
 
 117. The peace officers contemplated in 
 that section do not include a special consta- 
 ble, appointed under the provisions of Code, 
 § 3630 : Foster v. Clinton County, 51-541. 
 
 d. Ziien} 
 
 118. Notice: An attorney's lien does not 
 attach upon money due his client in the 
 hands of the adverse party, until notice is 
 
 ^ Code, § S15. An attorney lias a lien for a general balance of compensation upon: 
 
 1. Any papers belonging to his client, which have come into his hands In the course of his professional em- 
 ployment. 
 
 2. Money in his hands belonging to his client. 
 
 'A. Money due his client in tlie hands of the adverse party, or attorney of such party, in an action or proceed- 
 ing in which the attorney claiming the lien was employed, from the time of giving notice in writing to such 
 
ATTORNEYS, III, d. 
 
 1G3 
 
 Lien. 
 
 given to such party: Hurst v. Sheets, 21-501. 
 [Decided under the Revision, which did not 
 contain a provision similar to If 4 of Code, 
 § 315, authorizing the giving of such notice 
 by entry thereof in the judgment docket.] 
 
 119. Set-off: Therefore, held, that where 
 a judgment was rendered by A. against B., 
 on the same day as, but prior to, a judgment 
 by B. against A. , upon the latter of which 
 B.'s attorney filed his lien, A.'s right to set 
 off his judgment against B.'s was complete 
 before the attorney's Uen attached, and was, 
 therefore, superior to such lien: Ibid. 
 
 120. Whether such right of set-off would 
 have priority if it did not arise until after 
 notice of lien, qumre : Ibid. 
 
 121. The lien of an attorney is upon the 
 interest of his client in the judgment, and it 
 is subject to an existing right of set-off in 
 the other party : National Bank v. Eyre, 3 
 McCrary, 175. 
 
 122. Lien prior to garnisliment : The 
 lien of an attorney upon money due his 
 client, in the hands of the adverse party, 
 attaches from the time of giving notice to 
 such party, and his lien will not be post- 
 poned to a subsequent garnishment : Myers v. 
 MeHugh, 16-335. 
 
 123. Settlement: The parties may settle 
 without the consent of the attorneys, and 
 without first paying their fees, unless notice 
 of an attorney's lien has been given : Casar 
 v: Sargeant, 7-317. 
 
 124. But if notice is given, the lien will 
 not be defeated by the fact that the case is 
 settled without judgment having been ren- 
 dered: Smith V. Chicago, R. I. & P. B. Co., 
 56-730. 
 
 125. Payment of money to clerlt: A 
 party cannot avoid the lien by uncondition- 
 ally paying the money to the clerk ; but he 
 may pay it to the clerk to be held by him 
 subject to such lien : Fisher v. Oshaloosa, 
 38-381. 
 
 126. Satisfaction of judgment ; discharge 
 of lien : After the entry of the notice in the 
 judgment docket, the attorney acquires an 
 interest in the judgment, and may, by proper 
 proceedings, have the same enforced to the 
 
 extent of such interest. His interest cannot 
 be divested by a discharge of the judgment 
 by the parties, or by their consenting that it 
 be set aside : Brainard v. Ehvood, 58-30. 
 
 127. Where the attorney perfected the.title 
 of his client in real property attached in the 
 action, and thereby satisfied the judgment 
 as against the adverse party, held, that the 
 entry of his lieu in the judgment docket did 
 not preserve it upon such property in the 
 hands of a purchaser from his client : Cowen 
 V. Boone, 48-350. 
 
 128. Where the attorney, by authority of 
 his client, releases of record the lien of ■ the 
 judgment in behalf of the client, the attorney 
 cannot afterwards assert, as against a subse- 
 quent purchaser, any lien or interest in him- 
 self under such judgment : Wishard v. Biddle, 
 64-526. 
 
 129. Notice in writing: The notice of the 
 lien, to bind the adverse party, must be in 
 writing: Phillips v. Oermon, 43-101. 
 
 130. Notice at commencement of suit: A 
 notice of a claim for a lien is sufficient if 
 inserted in the original notice of tlie action. 
 (at least if signed by the attorney in his indi- 
 vidual capacity as well as in his capacity as 
 attorney for his client) : Smith v. diieago, R. 
 I. & P. R. Co., 56-730. 
 
 131. Service of notice upon agent of cor- 
 poration: While service of notice of attor- 
 ney's lien, in an action against a corporation, 
 might not be sufficient if made upon one of 
 the class of agents upon whom service of 
 original notice is authorized, yet if such serv- 
 ice of notice of lien is upon one of such 
 agents in connection with the service of the 
 original notice, such service of notice of lien 
 is sufficient, the service of the original notice 
 being sufficient to charge such agent with a 
 duty in i-elation to the matter : Ibid. 
 
 132. In action on tort: An attorney's lien 
 may properly be claimed, not only in all 
 actions on contract, but also in actions for 
 damages arising from tort : Ibid. 
 
 133. For future services: The lien at- 
 taches, after proper notice, not only for serv- 
 ices then rendered, but for those thereafter 
 rendered: Ibid. 
 
 adverse party, or attorney of saoh party, if the money is in the possession or under the control of such at- 
 torney, which notice shall state the amount claimed, and, in general terms, for what services. 
 
 4. After judgment in any court of record, such notice may be given and the lien made effective against the 
 judgment debtor, by entering the same in the judgment docket opposite the entry of the judgment. 
 
164 
 
 ATTORNEYS, lU, d; IV. 
 
 lien. — Taxation of attorneys' fees as costs. 
 
 134. Subject to costs: An attorney can- 
 not have a lien upon any greater amount 
 than shall actually be found to be owing by 
 the opposite party to his client. And where 
 an attoi-ney took an assignment of a judg- 
 ment to secure his fees, held, that he stood 
 in the shoes of his client, and must take the 
 judgment with all the burdens, such as costs, 
 taxed in favor of the opposite party, etc., 
 attaching by the course of the htigation: 
 Tiffany V. Stewart, 60-307; Watson v. Smith, 
 63-228. 
 
 135. Burden of proof: Where money col- 
 lected by an attorney was retained by him 
 under the claim of a hen, held, that it was 
 for him to aver and prove the services and 
 their value : Stanton v. Clinton, 53-109. 
 
 136. Subject to rights under trust deed : 
 Where a suit was commenced to subject the 
 property and income of a corporation to the 
 payment of bonds secured by deed of trust, 
 and a receiver was appointed, held, that the 
 attorney of the corporation had no lien on 
 its funds for services rendered after com- 
 mencement of suit which would have prior- 
 ity over the claims of the bondholders : Des 
 Moines Oas Co. v. West, 50-16. 
 
 137. Release of lien by bond: Under the 
 provisions of Code, § 216, authorizing the re- 
 lease of the lien upon the giving of bond, 
 with security, for the payment of any amount 
 found due the attorney, held, that the filing 
 of the bond released any lien which the at- 
 torney might have by statute : Cross v. Ack- 
 ley, 40-493. 
 
 138. In an action by the client against the 
 attorney to recover moneys collected by the 
 attorney, the fact that the attorney is entitled 
 to a portion of the money collected in pay- 
 ment for services will not render the proceed- 
 ing one to discharge an attorney's lien in 
 3uch sense as to make it necessary to tender 
 a bond in order to obtain a release of the 
 property : Armitage v. Sullivan, 69-426. 
 
 139. Assignment of lien: Where an at- 
 torney transfers to another securities on 
 which he claims a lien, his assignee can only 
 hold them for the reasonable value of the 
 services rendered: Collins v. Jennings, 42- 
 447. 
 
 140. The supreme court cannot grant an 
 attorney's Uen on a judgment when such 
 lien is not secured in the proceedings in the 
 
 court below, as such relief would be the ex- 
 ercise of original jurisdiction: Preston v. 
 Daniels, 2 G. Gr., 586. 
 
 IV. Taxation of attoeneys' fees as 
 
 COSTS, OE EECOVEET AS DAMAGES. 
 
 141. Contract for, valid : A stipulation in 
 a contract or note for the payment of an 
 attorney's fee in case action shall be brought 
 thereon is valid: Kuhn v. Myers, 87-351; 
 Shugart v. Pattee, 87-423. So in case of 
 mortgage : Williams v. Meeker, 29-292. 
 
 142. Does not affect negotiability: Such 
 a provision in a note does not destroy its 
 negotiability : Sperry v. Horr, 32-184. 
 
 143. If the note is usurious an attorney's 
 fee provided for therein cannot be recovered: 
 MiUer v. Gardner, 49-234. 
 
 144. Surety liable for: A surety on a 
 note providing for attorneys' fees is liable 
 therefor : First Nat. Bank v. Breese, 39-640. 
 
 145. What is bringing of action : Where 
 a note provided for taxation of reasonable 
 attorneys' fees for collection if an action 
 should be brought thereon, held, that a 
 resort to legal proceedings was contemplated 
 as the occasion for taxing such fee, and that 
 filing the note as a claim against the estate 
 of the maker, and proving it as such claim, 
 was sufficient to warrant the allowance of 
 the fee : Davidson v. Vorse, 52-384. 
 
 146. Liquidated damages: Where the con- 
 tract or note specifies the amount to be taxed 
 as attorneys' fees, the amount thus specified 
 is not in the nature of a penalty but is hqui- 
 dated damages, for which recovery may be 
 had without proof of the reasonable value of 
 the services : Melntire v. Cagley, 37-676. 
 
 147. Evidence of value: Upon default in 
 an action upon a note providing for the 
 allowance of reasonable attorneys' fees, it is 
 error to allow an amount for such fees with- 
 out evidence as to their value : First Nat. 
 Bank v. Kranoe, 50-235. 
 
 148. Attorney's testimony: The testi- 
 mony of plaintiff's attorney as to the value 
 of his services in an action on a contract 
 providing for the allowance of attorneys' 
 fees, will, in the absence of other evidence, 
 be taken as establishing such value ; and the 
 com-t will not, for itself, judge of the value 
 of such servicesj ScMicht v. Stivers, 61-746. 
 
ATTORNEYS, IV. 
 
 16S 
 
 Taxation of attorneys' fees as costs. 
 
 149. Pleading: Where the claim for at- 
 torneys' fees is in a sepai-ate count of the 
 answer, an answer to that count will not be 
 regarded as putting in issue the averments 
 of the other counts : Musser v. Crura, 48-52. 
 
 150. Where the provision is for the allow- 
 ance of a reasonable amount as attorney 
 fees, it is not necessary in the petition to 
 aver what is a reasonable amount; Nelson 
 V. Everett, 39-184. 
 
 151. Actual fee alone taxed: Whether 
 the note provides for a fixed sum or a rea- 
 sonable fee, no more can be taxed than the 
 actual fee. It is not by such agreement 
 intended that the party shall, in any event, 
 have any part of the fee taxed: White v. 
 Lucas, 46-319. 
 
 153. Taxed as costs ; notassessedby jury: 
 Attorneys' fees provided for in a contract are 
 to be treated as costs in the action and not 
 as a part of the amount in controversy: 
 Spiesberger v. Thomas, 59-606. 
 
 153. The defendant is not entitled to have 
 the amount thereof assessed by jury : Musser 
 V. Cram, 48-53. 
 
 154. But where the parties consent, or fail 
 to object, to a submission of the matter to the 
 jury, they cannot be heard afterward to say 
 that the trial was not in the proper tribunal : 
 Dent V. Smith, 53-862. 
 
 155. The taxation of the fee is an inde- 
 pendent matter and may be made after the 
 services in the case are concluded. There- 
 fore, where a motion to tax attorney's fee 
 was not made until after taking appeal, held, 
 that such taxation was improper at that time, 
 and should be postponed until the termina- 
 tion of the appeal: Mason v. Searles, 56- 
 532. 
 
 156. The amount of attorneys' fees to be 
 taxed may be determined after the trial and 
 decision of the case, and where it appears 
 that they have been thus taxed, it will be pre- 
 sumed on appeal, in the absence of any 
 showing on the subject, that there was evi- 
 dence to support such taxation, and that the 
 judgment was in accordance therewith : Kelso 
 V. Fitzgerald, 67-366. 
 
 157. The attorney's affidavit required by 
 statute, that there is no agreement to divide 
 the fee, is not evidence to be introduced by 
 the plaintiff; it is rather a condition prece- 
 dent to be performed by the attorney be- 
 
 fore the attorney's fee can be allowed in his 
 favor : Spiesberger v. Thomas, 59-606. 
 
 158. Such affidavit should be filed with the 
 original petition prior to the return day ; that 
 is, the first day of the next term : Wilkins v. 
 Troutner, 66-557. 
 
 159. The attorney's fee must be disallowed 
 where the affidavit is not filed: Sweney v. 
 Davidson, 68-886. 
 
 160. A requirement that an attorney shall 
 file an affidavit that he has not directly or 
 indirectly received any compensation for hia 
 services from any source must be complied 
 with; it is not sufficient that his affidavit 
 states that the claim is just and true : Ryoe 
 V. Mitchell County, 65-447. 
 
 161. Collusive taxation of excessive fee: 
 Where, apparently to' reduce the balance 
 which would remain after satisfaction of 
 the mortgage, and be subject to a judgment 
 lien, it was agreed between defendant and 
 plaintiff's attorney in a foreclosure suit that 
 a larger amount than the attorney claimed 
 should be taxed as attorney's fee, and the 
 excess returned to defendant, held, that 
 action by defendant to recover such ex- 
 cess from the mortgagee purchasing under 
 the foreclosure could not be maintained : 
 Remley v. Johnson County Savings Bank, 
 53-575. 
 
 162. Provision in mortgage: Where the 
 provision authorizing the taxation of attor- 
 neys' fees is in the mortgage and not in the 
 note secured, judgment for the fee should be 
 against the mortgagor alone and not against 
 parties who are liable on the note but are 
 not parties to the mortgage : Floyd County 
 V. Morrison, 40-188. 
 
 163. Not usurious: A stipulation for at- 
 torneys' fee does not render a contract usu- 
 rious : Nelson v. Everett, 39-184. 
 
 164. Attorneys' fees in former suit: In 
 the absence of malice or want of probable 
 cause, attorneys' fees for defending in a 
 former suit cannot be allowed in an ordinary 
 action on contract: Newell v. Sanford, 13- 
 463. 
 
 165. Trustee allowed for: Where a trustee 
 chargeable with collection of certain claims, 
 with the right to deduct expenses of collection 
 fronx the proceeds, placed them in the hands 
 of an attorney, held, that attorneys' fees were 
 properly allowed on all the claims although 
 
166 
 
 ATTORNEYS, V, VI — AUCTIONS. 
 
 Misconduct, etc. — Attorney as witness. — Terms of sale. 
 
 suit was in fact brought on but one : Abbott 
 V. Downer, 54^687. 
 
 As to fees in actions on attachment and 
 injunction bonds, see Attachment, §§ 279- 
 284, and INJUNCTION, g§ 157-164. 
 
 Y. Misconduct; suspension; disbae- 
 ment; contempt. 
 
 166. Improper conduct: A court should 
 never hesitate to stop counsel in attempts to 
 drag improper matters before a jury, and 
 should visit merited punishment when such 
 tmprofessional conduct is indulged in. But 
 it does not follow that in such cases a ver- 
 dict wiU not stand. To requii-e setting aside 
 of the verdict prejudice must be shown: 
 Hammond v. Sioux City & P. R. Co., 49-450. 
 
 167. Where an attorney, in an excited 
 manner, directly contradicted the statements 
 of the court in ruling upon an objection to 
 evidence, alleging that the facts upon which 
 such ruling was based, as stated by the court, 
 were not true, held, that he was guilty of 
 contempt: Russell v. French, 67-103. 
 
 168. Suspension : Charges in a particular 
 case against an attorney for making false 
 representations to clients for the purpose of 
 retaining money collected and defrauding 
 them ; also for collecting and refusing to pay 
 over money, to which the attorney pleaded 
 guilty, held sufiScient to justify an order sus- 
 pending the attorney and providing in a cer- 
 tain contingency for his final disbarment: 
 Slemmer v. Wright, 54-164. 
 
 169. Proceedings to disbar: Proceedings 
 under statutory provisions to disbar an attor- 
 ney are special proceedings in which the pro- 
 visions for change of venue in civil actions 
 are applicable : State v. Clarke, 46-155. 
 
 170. The license of an attorney to practice 
 can be revoked or suspended only as the re- 
 sult of proceedings instituted foi- that pur- 
 pose and after he has had his day in court. 
 It cannot be done summarily as a punish- 
 ment for contempt : State v. Start, 7-499. 
 
 1 71. It is probable that the court could, in 
 the exercise of its inherent authority, require 
 a member of the bar to discharge the duty 
 of conducting the prosecution of a jwoceed- 
 ing for disbarment. But the exercise of such 
 authority rests in the sound discretion of the 
 judge, and the persons commencing the dis- 
 
 barment proceeding could not object to the 
 action of the court in refusing to make such 
 appointment : Byington v. Moore, 70 . 
 
 172. Disobedience of order of court: 
 Wilful disobedience of order of court to pay 
 over money due the client may be ground 
 for suspending or revoking license : Cross v. 
 Achley, 40-493. 
 
 173. Proceedings for contempt: In pro- 
 ceeding against an attorney for contempt, 
 the accusation should specify the manner in 
 which the contempt was committed ; if by 
 words, the words used should be set out ; if 
 by acts, they should be described : Perry v. 
 State, 3 G. Gr., 550. 
 
 Further as to Contempt, see that title. 
 
 VI. Attoenet as witness. 
 
 174. Professional statement: Where the 
 professional statement of an attorney is re- 
 ceived it is to be regarded as an affidavit: 
 Rioe V. Griffith, 9-539. 
 
 175. Witness for his client: An attorney 
 is a competent witness for his client : Walsh 
 V. Murphy, 3 G. Gr., 237. 
 
 176. But no attorney having a just con- 
 ception of his true and proper position will 
 willingly unite the character of counsel and 
 witness in the same case : Alger v. Merritt, 
 16-131. 
 
 Affidavits, etc. : That an attorney is com- 
 petent to verify pleadings, make affidavits, 
 etc. , for his client in proper cases, see gS 17- 
 20, supra. 
 
 As to testimony of attorney relative to the 
 value of his own services to be taxed as at- 
 torney's fee, see supra, § 148. 
 
 Privileged comninnicatious to attorney: 
 See Evidence, §§ 1108-1115. 
 
 AUCTIONS. 
 
 1. Terms of sale: The owner of property 
 offered for sale at auction has the right to 
 prescribe the manner, conditions and terms 
 of sale, and where these are reasonable and 
 known to the buyer they are binding upon 
 him, and he cannot acquire a title in oppo- 
 sition to them, and against the consent of the 
 owner : Farr v. John, 33-386. 
 
 2. Where it was publicly announced in the 
 hearing of defendant that no bid less than 
 
AUCTIONS — BAILMENT, I. 
 
 167 
 
 Warranty. — When bailment arises ; kinds of. 
 
 five cents in addition to any former bid 
 would be received, and an article was offered 
 accompanied by the statement that an ab- 
 sentee had left a bid of two dollars on it, and 
 any one who would bid more could have it, 
 held, that a bid of one cent more, which was 
 disregarded, did not entitle the last bidder to 
 the article : Ibid. 
 
 3. Warranty: Statements made by an 
 auctioneer that certain sheep sold were young, 
 and sound, held not to be a warranty, al- 
 though made by authority of the seller: 
 McGrew v. Forsytlie, 31-179. 
 
 4. A written meniorantliim of a sale, made 
 by an auctioneer, is a sufficient written con- 
 tract to bind both parties : Wingate v. Her- 
 schaiier, 42-506. 
 
 5. Auctioneers: A municipal corporation 
 may be given authority to regulate and li- 
 cense sales by auctioneers, and may, under 
 such authority, impose a license tax: Deco- 
 rah V. Dunstan, 38-96. 
 
 6. A resident merchant, employing an auc- 
 tioneer to sell part of his goods, is not him- 
 self subject to payment of a license tax as 
 auctioneer : Oskaloosa v. Tullis, 35-440. 
 
 AWABD. 
 
 See Arbitbahon. 
 
 BAIL. 
 
 See Ceiminai Law, III, 12, 
 
 BAILMENT. 
 
 I. When aeises; kinds op. 
 
 II. Eights of bailee. 
 III. Compensation and lien. 
 I"V. Liability op bailee for negligence 
 
 OB CONVEKSION. 
 
 T. When aeises; kinds of. 
 
 1. Deposit; parol evidence: A receipt for 
 money " on deposit" does not show whether 
 it is received on special or general deposit, 
 and that fact may be shown by parol evi- 
 dence : Keen v. Beckman, 66-673. 
 
 2. Deposit payable in kind; custom: 
 Where wheat is delivered at a mill under a 
 
 custom known to the party delivering that 
 it is to be thrown into a general bin and a re- 
 ceipt given entitling him to flour, bran, or 
 wheat again, as he shall call for it, the title 
 vests in the mill owner : Wilson v. Cooper, 
 10-565. 
 
 3. Grain in warehouse: Where grain was 
 stored with a warehouseman with the un- 
 derstanding that when the depositor got 
 ready to sell it the warehouseman would 
 give the highest price, or would return the 
 same quantity of like grain, the original grain 
 to be shipped and sold by the warehouse- 
 man, held, that the transaction was a sale 
 and not a bailment: Johnston v. Browne, 37- 
 300. 
 
 4. Where the owner of grain deposited it 
 in an elevator under a contract by which the 
 warehouseman might mingle it in a com- 
 mon mass with other grain, and return grain 
 of the same quality but not the identical 
 grain, held, that the transaction was a bail- 
 ment and not a sale, and that the warehouse- 
 man was not liable for its value if destroyed 
 without fault or negligence on his part: 
 Nelson v. Brown, 44-455. 
 
 5. So where grain was deposited with a 
 warehouseman under a known usage and 
 custom of trade by which it was to be mixed 
 with other grain in store, and the proper 
 number of bushels in the warehouse were 
 to be regarded as the property of the depos- 
 itor, held, that the transaction constituted a 
 bailment : Hughes v. Stanley, 45-633. 
 
 6. Where the owner of grain deposits it 
 with a warehouseman, consenting that it shall 
 be mixed with other grain of like quality, 
 belonging in part to the other depositors 
 and in part to the warehouseman, he be- 
 comes with the other depositors and the 
 warehouseman an owner in common of the 
 grain in the warehouse, and the title to the 
 grain deposited does not pass to the wai-e- 
 houseman: Sexton v. Graham, 53-181; Nel- 
 son V. Brown, 53-555. 
 
 7. In such a case the fact that the ware- 
 houseman has the right to, and does, with- 
 draw his proportionate share, does not affect 
 the ownership of the depositors, nor will 
 subsequent additions or subtractions to and 
 from the common mass affect the interest 
 of the depositors, even though an entire 
 change is effected in the identity of the mass 
 
168 
 
 BAILMENT, I, II. 
 
 When arises ; kinds of. — Eights of bailee. 
 
 stored. The receipt-holder remains at all 
 times a tenant in common of the grain in 
 store: Ibid. 
 
 8. All the grain in the elevator of the kind 
 and grade of that deposited, and with which 
 the grain deposited may be properly mixed, 
 is to be treated as a common mass, although 
 contained in separate compartments or bins : 
 Sexton V. Graliam, 53-181. 
 
 9. Although the warehouseman wrongfully 
 abstracts and sells more than the proportion 
 belonging to him, the balance is to be con- 
 sidered the property of the depositors in 
 common: Tbid. 
 
 10. Where the person in charge of the 
 warehouse delivered all the remaining grain 
 to the holder of a portion of the outstanding 
 receipts on demand thereunder, held, that 
 this was not a new transaction, but was in 
 pursuance of the existing claim, and all re- 
 ceipt-holders had a right to shajre in the prop- 
 erty so dehvered : Ibid. 
 
 11. Where wheat was received under an 
 agreement that it was to be at owner's risk 
 as to fire, and was kept in a separate bin and 
 burned with the elevator, held, that the trans- 
 action was a bailment an^ defendant was 
 not liable for the loss: Irons v. Kentner, 
 51-8S. 
 
 12. Railroad as warehouseman: The lia- 
 bility of a railroad is only that of warehouse- 
 man after delivery of goods at its depot, at 
 the end of the transportation : Francis v. Du- 
 buque & S. C. -R. Co., 35-60; Mohr v. Chicago 
 & N. W. R. Co., 40-579. 
 
 13. Wareliouse receipt ; parol evidence ; 
 usage or custom : A warehouse receipt which 
 expresses a contract of bailment cannot be 
 varied by parol evidence of a custom or 
 usage or understanding for the pui-pose of 
 showing that the intention of the parties was 
 that the transaction should be regarded as a 
 sale: Marks v. Cass County Mill, etc., Co., 
 43-146 ; Sexton v. Graham, 53-181. 
 
 14. Collateral security: Under the statu- 
 tory provisions (Code, §§ 2171 and 2173) that 
 no warehouseman shall issue any receipt for 
 any personal property to any person unless 
 Buch property is in store, and that aU ware- 
 house receipts or other evidences of the de- 
 posit of property shall be, in the hands of the 
 holder thereof, presumptive evidence of title 
 to -said property, held, that a warehouse re- 
 
 ceipt for grain issued merely as collateral 
 security for a loan of money was in contra- 
 vention of the statute and invalid: Sexton v. 
 Graham, 53-181. 
 
 15. Whether a warehouse receipt will be 
 valid if the intention in executing it is to 
 create a mere lien, quaere: Lowe v. Young, 
 59-864. 
 
 16. Transfer: Where a depositor received 
 only scale tickets, showing the amount of 
 grain weighed, but did not receive any ware- 
 house receipt, and the warehouseman shipped 
 away the grain deposited until there was no 
 grain remaining to answer for the claim of 
 the depositor, held, that such scale tickets 
 were not warehouse receipts, and that a per- 
 son taking an assignment of the depositor's 
 claim would be subject to the warehouse- 
 man's right to set off against the depositor's 
 claim an indebtedness due from such depos- 
 itor, which he could not have done under 
 Code, SS 3171-2176, if receipts had been issued 
 and transferred : Cathcart v. Snow, 64^584. 
 
 17. Authority to sell: The fact that 
 bailee is authorized to sell the property and 
 make a disposition of the proceeds does not 
 render the transaction other than a bailment 
 until the sale is made : Goodenow v. Snyder, 
 3 G. Gr., 599. 
 
 18. Possession after disaffirmance of sale: 
 Where possession of property is acquired un- 
 der a conditional sale, the vendee, upon dis- 
 aflOirming the sale, holds the property as 
 bailee and is liable for any loss resulting 
 from gross negligence: Neatly v. Wilhelm, 
 4G.Gr.,240. 
 
 19. Use of horse : Where the owner of a 
 horse, for the purpose of avoiding the expense 
 of keeping it during the winter, lends it to 
 another under the agreement that the latter 
 shall take care of it in consideration of the 
 expense of keeping, the transaction is a bail- 
 ment for mutual benefit, and the bailee is 
 only required to use ordinary care : Cham- 
 berlin v. Cobb, 33-161. 
 
 II. Rights of bailee. 
 
 20. Special property: The bailee has a 
 special property in the thing which is the 
 subject of the bailment : Bruley v. Rose, 67- 
 651. 
 
 21. Cannot convey title ; innocent pur- 
 chaser: A bailee cannot convey a tjtle which 
 
BAILMENT, III, IV. 
 
 169 ■ 
 
 Compensation and lien. — Liability of bailee. 
 
 will prevail against the rightful owner. The 
 mere fact that the owner has left the prop- 
 erty in the possesion of the bailee will not 
 constitute such fraud as to defeat such owner's 
 right as against an innocent purchaser from 
 such bailee: Robinson v. ChapUne,Q-Ql. 
 
 22. Thus where a principal places in the 
 hands of his agent property for sale without 
 transferring the title to such agent, a pur- 
 chaser from the latter without knowledge of 
 the agency is not protected: Conable v. 
 Lynch, 45-84. 
 
 III. Compensation and lien. 
 
 23. Compensation presumed: In the ab- 
 sence of an agreement to the contrary, the 
 law implies a contract to pay the reasonable 
 value of the use of the thing loaned : Cullen 
 V. Lord, 39-303. 
 
 24. ttraluitous; burden of proof: The law 
 does not presume without proof that a bail- 
 ment is gratuitous, and if any exemption 
 from liability is claimed from that fact, the 
 burden of establishing such fact is upon the 
 person claiming the exemption: Winne v. 
 Illinois Cent. R. Co., 31-583. 
 
 25. Lien; exempt property: A bailee's 
 lien attaches to property which is exempt as 
 well as to that not exempt : Munson v. Porter, 
 63-453. 
 
 26. Use of bailed property: A bailee may 
 always use the thing bailed so far as is 
 necessary for its preservation, and the fact 
 that bailee uses a horse held by him under a 
 lien will not amount to a conversion, defeat- 
 ing his right to his lien : Ibid. 
 
 27. Lien specific: A bailee in possession 
 under a lien for services performed cannot 
 detain the property for the payment of other 
 debts without a specific agreement to that 
 eflfect : Nevan v. Roup, 8-207. 
 
 28. Possession necessiiry: The bailee's 
 lien for services does not arise unless the 
 article has been deUvered into his possession 
 for the purpose of having services performed 
 thereon; and if he parts with possession 
 before receiving compensation, his lien is lost 
 and is not reinstated by his coming into 
 possession of the property without the con- 
 sent of the owner : Ibid. 
 
 29. An ag'ister of cattle may have a Uen 
 thereon under special contract for his 
 
 charges, and held that under a contract in 
 which the charges for the keeping of cattle 
 were to be paid before moving the cattle, the 
 agister had the right of possession until pay- 
 ment was made : McCoy v. Hook, 37-436. 
 
 30. Livery-stable Icceper: At common 
 law a livery-stable keeper has no lien for the 
 care and feeding of horses left with him, 
 and no such Uen is given by Code, § 2177, 
 which confers a lien upon personal property 
 left with a depositary for the just and lawful 
 charges thereon. (Such a lien is now, how- 
 ever, given Jay express statute. See 18 G. A., 
 ch. 25) : McDonald v. Bennett, 45-456. 
 
 31. Where services in keeping a horse at a 
 livery-stable commenced before the enact- 
 ment of the statute just referred to, and con- 
 tinued afterward, held, that there being no 
 express contract, the livery-stable keeper 
 might assert his lien for charges after the 
 statute took effect, but not for charges previ- 
 ously incurred: Munson v. Porter, 63-453. 
 
 32. Forl'eiture of lien: If under any cir- 
 cumstances the lien should be deemed for- 
 feited by the assertion of a claim for a lien 
 for too large an amount, the assertion should 
 be clear and distinct, and operate to interfere 
 in the present with a claimed right on the 
 part of the owner : Ibid. 
 
 IV. Liability of bailee fob negli- 
 gence OB CONVEESION. 
 
 33. For wrongful acts of others: In an 
 
 action for dataages resulting from neglect 
 and 01-treatment of animals by a bailee 
 thereof, under a contract requiring him to 
 keep them in the best possible manner, held, 
 that it was error to instruct the jury that 
 bailee would only be liable for neglect or iU- 
 treatment of which he himself was guilty, or 
 which was known to and tolerated by him : 
 Rohrabacher v. Ware, 37-85. 
 
 34. Contributory negligence; burden of 
 proof: In an action against a livery-stable 
 keeper for the loss of a horse caused by his 
 negUgence, it is not incumbent upon plaint- 
 iff to prove that he was not himself guilty 
 of any neglect contributing to the injiiry: 
 McPherrin v. Jennings, 66-622. 
 
 35. Gratuitous bailment: In case of gra- 
 tuitous bailment for the bailor's sole benefit, 
 the bailee is only liable for gross negligence 
 
170 
 
 BAILMENT, IV — BANKRUPTCY, I. 
 
 Liability of bailee. — Jurisdiction. 
 
 ■or breach of good faith : Jourdan v. Reed, 1- 
 135. 
 
 36. Lost monej": Only slight diligence is 
 requu-ed of the finder of lost money in tak- 
 ing care thereof, and he will only be answer- 
 able for gross negligence: Dougherty v. 
 Posegate, 3-88. 
 
 37. Conversion; approximate injury: In 
 the case of hiring for use, the mere fact that 
 instructions as to the use of the thing loaned 
 given by the bailor to the bailee are not fol- 
 lowed, will not render the bailee liable for 
 any loss which accrues, without regard to 
 whether the injury results from failure to 
 obey instructions or from some other cause : 
 Cidlen V. iMrd, 39-303. 
 
 38. Conversion; implied contract: Where 
 property has been converted by a bailee, the 
 owner may waive the tort and sue in assump- 
 sit on the implied contract : Goodenow v. 
 Snyder, 3 G. Gr., 599. 
 
 39. Wi'ongfiil sale by commission mer- 
 chant; damages: In an action against a 
 commission merchant for selling for a less 
 amount than authorized by the consignor, the 
 damages recoverable are not to be limited to 
 the market value of the goods sold at the 
 time of such unauthoriized sale : Hallowell v. 
 Fawoett, 30-491. 
 
 40. If the consignee has made advances, 
 fair dealing requires that he shall give the 
 consignor reasonable notice and opportunity 
 i;o pay such advances, before a sale of the 
 •consigned property contrary to instructions 
 wiU be warranted in order to secure reim- 
 bursement: Ilnd. 
 
 41. Conversion; liability for: If aware- 
 houseman who has received grain under spe- 
 cial contract to be delivered to the depositor 
 upon demand, sells it, and fails to deliver ac- 
 cording to the contract, and the warehouse 
 is afterward burned, the warehouseman hav- 
 ing been guilty of conversion is liable for the 
 value of the proi^erty: McGinn v. Butler, 
 31-160. 
 
 42. Warehouseman; confusion of goods: 
 Where grain is deposited in an elevator, and 
 •other grain of the same grade and quality is 
 mingled therewith, the ownership of the de- 
 positor is not divested, even though no notice 
 of a custom to mingle such property by the 
 warehouseman is shown. Such facts simply 
 constitute a confusion of goods honestly 
 
 made, under such circumstances that the de- 
 positor should recover the same amount of 
 grain of the same grade and quality as that 
 deposited. In such a case there is no con- 
 version, and the warehouseman is not liable 
 for the value of the grain, if destroyed with- 
 out his negligence : Arthur v. Chicago, R. I. 
 & P. R. Co., 61-668. 
 
 43. The mere fact that grain is shipped 
 from a common mass until the identical ker- 
 nels are gone, enough being left, however, in 
 the common mass to satisfy the claims of de- 
 positors, will not constitute a conversion: 
 Cathcart v. Snow', 64-584. 
 
 44. Where property which is bailed by 
 weight is mingled by the bailee with other 
 property of the same character, such act 
 does not terminate the bailment: Goodenow 
 V. Snyder, 3 G. Gr., 599. 
 
 45. Where grain was delivered to a ware- 
 houseman for storage and mingled with the 
 common mass and shipped away for sale, 
 other grain being retained in store sufficient 
 in amount to cover the receipts issued, and 
 the warehouse and grain were thereupon de- 
 stroyed by fire, held, that whether the trans- 
 action was a sale or a bailment, the ware- 
 houseman was liable for the value to the 
 owner of the grain, in the one case for its 
 purchase price, and the other for conversion: 
 Dierkson v. Cass County Mill, etc., Co., 
 43-38. (But contra, see later cases, supra, 
 §§ 3-15.) 
 
 BANKRUPTCY. 
 
 I. Jurisdiction. 
 II. Suits by or against assignee. 
 
 III. Effect on existing liens, peioe con- 
 
 veyances, ETC. 
 
 IV. Discharge. 
 
 I. Jtjeisdiction. 
 
 1. Service upon a partner in a proceeding 
 in bankruptcy by the other partners may be 
 made outside of the district upon the person 
 of such partner, and may also be made by a 
 party to the proceeding: Stuart v. Hines, 
 33-60. 
 
 2. Lieu: After the filing of the petition in 
 bankruptcy, no valid lien upon the property 
 at that time owned by the bankrupt can be 
 acquired in a state court : Ibid. 
 
BANKRUPTCY, II, III. 
 
 171 
 
 Suits by or against assignee. — Effect on existing liens, etc. 
 
 3. State conrts have no jurisdiction to in- 
 quire into the existence of fraudulent prefer- 
 ences under the bankrupt law : Putnam v. 
 Swinney, 63-383. 
 
 4. A state court has no jurisdiction to set 
 aside for fraud a sale made by the assignee 
 in a bankruptcy proceeding, even after final 
 disposition of such proceedings, and the dis- 
 charge of the assignee: Aleiiis v. Stradley, 
 51-4U. 
 
 5. Where action was brought in a state 
 court in which the validity of title to land 
 acquired by a purchaser from an assignee in 
 bankruptcy was brought in question, held, 
 that the validity of such title should have 
 been determined in the court in bankruptcy 
 and that the state court had no jurisdiction 
 to pass upon it : Smith v. Price, 60-89. 
 
 6. A state court has not jurisdiction to de- 
 clare a conveyance void because in violation 
 of the provisions of the United States bank- 
 rupt law : Brewster v. Dryden, 53-657. 
 
 7. Nor to declare a judgment void as in 
 contravention of such bankrupt law, when 
 it is valid under state laws : Hecht v. Spring- 
 stead, 51-502. 
 
 II. Suits by oe against assignee. 
 
 8. Suit in state court: An assignee in 
 bankruptcy may maintain an action in a state 
 court to recover the assets of a bankrupt, or 
 to set aside a conveyance of the property 
 of the bankrupt made in bar of the rights of 
 creditors. The exercise of original jurisdic- 
 tion by the state court in such case is in no 
 proper case an exercise of jurisdiction in 
 bankniptcy, such as, by the bankrupt law, 
 is exclusively vested in the federal courts: 
 Wetmore v. McMillan, 57-344. 
 
 9. An assignee in bankruptcy is not re- 
 quired to go into court to defend an action 
 commenced against the bankrupt prior to 
 the date of the filing of the petition in bank- 
 ruptcy : Stuart ik Hines, 83-60. 
 
 10. Limitation of action: The section of 
 the bankrupt law (R. S., § 5067) providing 
 that any one claiming an adverse interest, 
 attaching any property or rights of property 
 vested in the assignee in bankruptcy, must 
 prosecute his action within two years, is ap- 
 plicable to a person seeking to enforce 
 against such assignee a lien held by him 
 
 upon the property of the bankrupt prior to 
 the assignment : Ooodnow v. Oakley, 66-658. 
 
 11 . In this respect a grantee of the assignee 
 stands in his shoes and is entitled to the pro- 
 tection of the statute ; Ibid. 
 
 12. The federal statute limiting the time 
 witliin which action may be brought by the 
 assignee does not apply to an action by the 
 bankrupt to enforce a claim covered by the as- 
 signment after the assignee has abandoned it 
 by failing to bring action until his right to do 
 so is barred ; Coleman v. Riggs, 61-543. 
 
 13. In such a case, the right of action on 
 such claim becomes revested in the bankrupt 
 after the settlement of the estate and his dis- 
 charge, although the assignee has not been 
 formally discharged : Ihid. 
 
 III. Effect on existing liens, peioe 
 conveyances, etc. 
 
 14. Fraudulent conveyance: Under the 
 provisions of the bankrupt law making con- 
 veyances and transfers of property by the 
 insolvent within a specified time before bank- 
 ruptcy void, it is necessary, in order to defeat 
 a sale, not only to show that the seller was 
 insolvent or contemplated insolvency, but 
 also that the purchaser had cause to know 
 such fact, and that the sale was for the pur- 
 pose of preferring him as a creditor and 
 defeating the provisions of the law. The 
 rights of such a purchaser cannot be defeated 
 on account of fraudulent representations of 
 the bankrupt *hen the purchaser had no 
 reason to suspect a fraudulent intention: 
 Rice V. Melendy, 41-395. 
 
 15. Attachment lien: A bankruptcy pro- 
 ceeding, commenced within four months 
 after the levy of an attachment, extinguishes 
 the debt and dissolves the attachment, al- 
 though in the proceeding there is a composi- 
 tion by the creditors, and therefore no 
 assignee is appointed to represent the debtor 
 in the attachment proceeding and claim the 
 property : Smith v. Engle, 44-365. 
 
 16. An attachment made more than four 
 months preceding the commencement of the 
 bankruptcy proceedings is not dissolved 
 thereby, and the lien of such attachment 
 may be enforced, although a judgment m 
 personam cannot be recovered against the 
 bankrupt after his discharge : Hatch v. Seeley, 
 37-493. 
 
172 
 
 BANKRUPTCY, III, rv. 
 
 Effect oil existing liens, etc. — Discharge. 
 
 17. Assignments: Although assignments 
 made within four months prior to the bank- 
 ruptcy are declared void, yet an assignment 
 made merely to carry out an imphed obU- 
 gation previously existing will not bo af- 
 fected by the bankruptcy : First Nat. Bank 
 V. Haire, 36-443. 
 
 18. Lien; preferred creditor: While a 
 preferred creditor is deemed to 'waive his lien 
 if he files and proves up his claim as a gen- 
 eral creditor without disclosing the fact of 
 such lien, yet if it does not appear that in 
 doing so he failed to disclose his lien or re- 
 leased it to the assignee, it wUl not be pre- 
 sumed that he was guilty of fraud so as to 
 extinguish his lien, or that he made such re- 
 lease : Hatch v. Seeley, 37-493. 
 
 19. Mortgag:e: If the creditor holding a 
 mortgage as security for his debt does not 
 become party to the proceedings by filing his 
 claim, he must confine himself to the secu- 
 rity which he holds, and if he does so, his 
 rights are not affected nor can the lien be 
 taken away, and the bankrupt court can ac- 
 quire no jurisdiction over the mortgaged 
 property with reference to such lien. In 
 such case, the right to foreclose such lien can 
 properly be prosecuted in a state court: 
 McKay v. Funk, 37-661. 
 
 20. But in such action a personal judg- 
 ment cannot be rendered against the bank- 
 rupt ; and when the defendant moves to stay 
 proceedings for such personal judgment on 
 account of pendency of the proceedings in 
 bankruptcy, the court should do nothing 
 further as to that matter until the final de- 
 termination of the question of the bankrupt's 
 discharge. A rendition of a personal judg- 
 ment, with an order staying execution until 
 the final termination of the bankruptcy pro- 
 ceedings, is erroneous : Tbid. 
 
 21. Setting aside pnyment: Where a pay- 
 ment is set aside as haying been made in 
 fraud of other creditors, the creditor to 
 whom the payment was made may recover 
 the amount which he is compelled to refund 
 from sureties on the indebtedness, although 
 such sureties have, prior to the setting aside 
 of the payment, paid the balance of the in- 
 debtedness and taken up the evidence of 
 such indebtedness : Watson v. Poague, 43-583. 
 
 22. An indorsement of a promissory note 
 before maturity by a payee against whom 
 
 bankruptcy proceedings have been com- 
 menced will not pass title. The indorsee will 
 not be regarded as an innocent purchaser, 
 and the note will pass to the assignee in 
 bankruptcy, when appointed: Seaton v. 
 Hinneman, 50-395. 
 
 lY. DiSOHAE&E. 
 
 23. Not collaterally attacked: A decree 
 in bankrui)tcy is conclusive of the discharge 
 except in cases of fraud or concealment, and 
 the omission of the bankrupt to state the 
 name of a creditor or the fact of a debt due, 
 or a failure on his part to notify a creditor of 
 his apphcation for a discharge, will not .avoid 
 the effect of the discharge. When jurisdic- 
 tion of the court to award a discharge is 
 shown, the regularity of the proceedings 
 cannot be collaterally assailed: Magoon v. 
 Warfield, 3 G. Gr., 203. 
 
 24. Certiflcate as evidence: Although the 
 certificate of discharge is evidence thereof, 
 the same fact may also be proven by the de- 
 cree awarding the discharge : Ibid. 
 
 25. Decree conclusive: A decree of dis- 
 charge is sufficient evidence of the fact of 
 discharge without the presentation of the 
 certificate: Viele v. Blanchard, 4G. Gr., 399. 
 
 26. Where the proceedings show that the 
 bankrupt court had jurisdiction, the decree 
 is conclusive of the discharge : Ibid. 
 
 27. The record of proceedings in bank- 
 ruptcy held sufficient in a particular case to 
 show that the court had jurisdiction to enter 
 a discharge which would be a binding ad- 
 judication until reversed on appeal, even 
 though erroneous : Smith v. Engle, 44-365. 
 
 28. Also, held, that the signatures of the 
 banknipts and certain of their creditors to a 
 paper referring to a resolution accepting 
 composition of debts was as binding as though 
 signed to the resolution itself, and that as to 
 whether the requisite creditors in number 
 and value signed such paper, and as to 
 whether the offer of composition was suffi- 
 cient to support necessary proceedings there- 
 on, was within the jurisdiction of the court 
 in bankruptcy to decide : Ibid. 
 
 29. Effect of discharge: A discharge in 
 bankruptcy duly and properly attested wiU 
 be presumed to operate as a discharge from 
 all debts, at least in the absence of proof that 
 
BANKROPTCY, IV — BANKS. 
 
 173 
 
 Discliarge. — Creation of. 
 
 the creditor had no notice of the bankruptcy 
 prooee,dings : Thornburgh v. Madren, 33-380. 
 
 30. A discharge under state insolvent laws 
 does not discharge a debt due to a citizen of 
 another state, no matter where the debt was 
 contracted or made payable, unless the 
 creditor has appeared and submitted to the 
 jurisdiction of the court by becoming a party 
 or claiming a dividend: Hawley v. Hunt, 
 37-303. 
 
 31. Contingent debt: A contingent right 
 to contribution between joint debtors is a 
 claim provable under the bankrupt act, and in 
 an action for such contribution, a discharge 
 in bankruptcy, while the contract is in exist- 
 ence, may be shown in bar: Frentress v. 
 Markle, 3 G. Gr., 553. 
 
 82. Liability on warranty: Where the 
 bankrupt had, before bankruptcy, conveyed 
 by general warranty deed premises covered 
 by a mortgage, without excepting such 
 mortgage from the covenants of the deed 
 against incumbrances, held, that the claim 
 of the grantee against the grantor for breach 
 of such covenants was so far a contingent 
 liability that it might have been proved up 
 in the bankruptcy proceeding, but, not 
 having been so proved, the discharge in 
 bankruptcy relieved the bankrupt from any 
 further liability thereon: Parker v. Brad- 
 ford, 45-311. 
 
 33. Debts in flduciary capacity: A debt 
 incurred while acting in a flduciary capacity 
 is not discharged by a discharge in bank- 
 ruptcy, even though it had been reduced to 
 judgment before the bankruptcy proceedings : 
 Wade V. Clark, 53-158. 
 
 34-. It seems that a claim for wrongful 
 conversion by a bailee of bailed property is 
 barred by a discharge, and is not a debt owing 
 in a flduciary capacity so as to be excepted 
 from such discharge : Sumner v. Ridhie, 54- 
 554. 
 
 35. Subsequent promise: A promise by a 
 bankrupt, made after the adjudication, but 
 before he has obtained his certificate of dis- 
 charge by which he agrees to pay the debt, 
 is binding upon him : Knapp v. Hoyt, 57-591. 
 
 36. Where the bankrupt said to his creditor 
 that if he got his discharge " he would be in 
 shape to pay and was going to pay," held, 
 that this was sufiicient to constitute an ex- 
 press promise : Ibid. 
 
 37. In such cases, if the debt is already in 
 judgment, the creditor is entitled to equitable 
 relief removing the apparent dis(;harge from 
 such judgment arising from the bankruptcy 
 proceeding: Ibid. 
 
 38. Under the provision of the bankrupt 
 law, that any contract by a bankrupt with a 
 creditor for securing the payment of any 
 money as consideration for forbearance to 
 oppose discharge shall be void, and that the 
 creditor may apply within two years to have 
 the discharge set aside for fraud, etc. , held, 
 that a promissory note given for a debt exist- 
 ing prior to the adjudication, to a creditor, 
 upon the condition that such creditor should 
 dismiss a proceeding to set aside the dis- 
 charge, was void : Fell v. Cook, 44r-485. 
 
 BANKS. 
 
 1. Creation of: The constitutional restric- 
 tions upon the legislative authority to pass 
 or amend acts authorizing or creating cor- 
 porations or associations with banking pow- 
 ers (Const., art. 8, § 9) is not intended to 
 forbid the repeal by the legislature of acta 
 organizing banks, it being required, however, 
 by g 8 of the same article, that such repeal 
 be by a two-thirds vote : Morseman v. Youn- 
 kin, 37-350. 
 
 3. Liability of stockholders i The pro- 
 vision of the same article of the constitution 
 rendering stockholders in a banking corpora- 
 tion or institution individually liable to an 
 amount equal to their respective shares, ap- 
 plies only to banks of issue and not to banks 
 merely of discount and deposit: Allen v. 
 Clayton, 63-11. 
 
 As to taxation of stock, capital and de- 
 posits of banks, see Taxation, §g 146-157. 
 
 3. Deposits; bailmeut: Where United 
 States bonds were deposited with a bank for 
 the purpose of having them converted into 
 similar bonds of another denomination, held, 
 that the transaction was not to be deemed a 
 gratuitous one, but for a compensation, and 
 that the bank was liable as a bailee for hire : 
 Leach v. Hale, 31-69. 
 
 4. A special deposit is one where the de- 
 positor is to receive back the identical thing 
 deposited. In such case the right of property 
 remains in the depositor: Lowry v. Polk 
 County, 51-50. 
 
174 
 
 BANKS. 
 
 Protest; negligence. 
 
 5. A receipt by a bank for money received 
 "on deijosit" does not show whether such 
 deposit is special or general, and the bank 
 may introduce parol evidence to show that 
 the transaction was in fact a special deposit : 
 Keen v. Beckman, 66-672. 
 
 6. Indorsemeut of a check by payee is 
 not necessary, when payment is made to him : 
 Huber v. Bossart, 70 .' 
 
 7. Protest ; negligence : It is the duty of a 
 bank with which a note is left for protest to 
 exercise ordinary and reasonable diligence in 
 giving notice. Where a note was left with a 
 bank for protest without direction as to where 
 notice to the indorser should be sent, and it 
 was sent by mistake to a person of the same 
 name as that of the indorser, and living in 
 the neighborhood, held, that the bank was 
 not liable for negligence: Mount v. First 
 Nat. Bank, 37-457. 
 
 Collecting agent: Liability of bank as, 
 see Agency, § 48. 
 
 8. Payment to: While an agent having a 
 money demand for collection cannot dis- 
 charge the obligation by receiving anything 
 but money unless specially authorized so to 
 do, yet where a bank received a note for col- 
 lection with direction that it should receive 
 payment thereof in New York exchange, it 
 being a bank of exchange as well as of de- 
 posit, held, that the acceptance in payment 
 by the bank of its own certificate of deposit 
 payable on demand was a discharge of the 
 indebtedness, although it, failed to remit the 
 amount to the creditor, and afterward be- 
 came insolvent, it appearing that on the day 
 payment was thus made, it was paying its 
 obligations and had money on hand with 
 which the certificate could have been paid in 
 cash if demanded, although it was actually 
 insolvent, that fact not being known to the 
 holder of the certificate: British & Am. 
 Mrge Co. v. Tibballs, 63-468. 
 
 And see Bills and Notes, § 433. 
 
 9. Liability for bills issued; partner- 
 ship: Where a bank of issue was established 
 by different banking firms, the notes thus 
 issued being put into circulation by the dif- 
 ferent firms with an announcement that each 
 was individually responsible for the bills 
 issued, and that such bills would be redeemed 
 in coin at the bank of issue, and at the places 
 of business of the several partnership banks. 
 
 held, that while the several banking houses 
 might have been separate institutions in 
 some operations, yet each became a member 
 of the new firm to carry on the bank of issue, 
 and the bills issued might be presented for 
 payment to either of such banking houses, or, 
 in the case of their suspension, to individual 
 members thereof : Taylor v. Cook, 14-501. 
 
 10. A stockholder of a bank which is ille- 
 gally organized, and has issued, given cui-- 
 rency to, and received value for, bills, is 
 personally bound to redeem them, and may 
 make a valid contract with another to re- 
 deem them for him : Allen v. Pegram, 16- 
 163. 
 
 11. Sale of stock: Bank stock is personal 
 property, and when sold, if there is nothing 
 in the contract or circumstances to repel the 
 presumption, the vendor will be considered 
 as warrantihg the title, and that the stock is 
 legally what it purports to be in fact ; but 
 not its quality or value : Ibid. 
 
 12. Where a note was made to a bank pay- 
 able in its stock, held, that if tlie president, 
 with whom the contract was made, after- 
 ward received the stock, he would hold it for 
 the bank and as its property: Markley v. 
 Rhodes, 59-57. 
 
 13. National banks ; powers: The act of 
 a national bank receiving United States 
 bonds of one denomination from its own 
 customers to be converted into bonds of simi- 
 lar denominations is within the powers con- 
 ferred upon such banks by act of congress : 
 Leach v. Hale, 31-69. 
 
 14. Although the national banking act 
 prohibits the taking of real property security 
 for loans, yet where security is given to one 
 who becomes personally liable upon such 
 loan, the bank may avail itself of such secu- 
 rity : Fir.st Nat. Bank v. Haire, 36-443. 
 
 15. A national bank may take, hold and 
 enforce a chattel mortgage for a previously 
 contracted debt: Spafford v. First Nat. 
 Bank, 37-181. 
 
 l(i. Under the act of congress, power is 
 expressly given to national banks to discount 
 and negotiate promissory notes : Merchants', 
 etc.. Bank v. Moninger, 49-249. 
 
 17. A mortgage upon real property, taken 
 by a national bank as security, will not be 
 void. The punishment for such act, if any, 
 is a judgment of ouster, and dissolution in a 
 
BANKS — BASTARDY. 
 
 175- 
 
 Lists of stockholders.' — Nature of proceeding ; costs. 
 
 proper proceeding. A private person cannot 
 usurp this function of government and ques- 
 tion the validity of the act : First Nat. Bank 
 V. Elinore, 52-541 ; Streeterv. First Nat. Bank, 
 5a-177. 
 
 18. Lists of stockholders: Failure on the 
 part of an officer of a national bank to com- 
 ply with the provisions of the national bank- 
 ing act requiring a list of the stockholders to 
 be kept, accessible to all, will not relieve 
 from liability the person who is not thus 
 shown to be a shareholder, but who is 
 chargeable as such: Hale v. Walker, 31-344. 
 
 19. Jurisdiction in actions against; 
 change of venue: The provision of the na- 
 tional banking act, giving jurisdiction in ac- 
 tions against such banks to state courts "in 
 the county or city in which said association 
 is located," does not limit jurisdiction abso- 
 lutely to the state courts of that county ; but 
 the action being properly there brought, a 
 change of venue may be had to the court of 
 another county as in other cases : Kinser v. 
 Farmers' Nat. Bank, 58-738. 
 
 20. Receiver; payment of claims: Under 
 a provision of the national banking act, the 
 assets of the association in the receiver's 
 hands, or when reduced to money and placed 
 subject to the order of the comptroller, are 
 to be ratably divided, and appropriated to 
 the payment of the legal habilities of the as- 
 sociation, whether they be technically so 
 called, or result from fraud, or the nonfeas- 
 ance or malfeasance of the association in 
 respect to its legal obligations: Turner v. 
 First Nat. Bank, 26-562. 
 
 BASTARDY, 
 
 1. Nature of proceeding; costs: An action 
 under the bastardy act is a civil and not a 
 criminal action, and the county is not liable 
 for costs in case the judgment is in favor of 
 defendant: McAndrew v. Madison County, 
 67-54. 
 
 2. Dismissal: And held, that the mother 
 might dismiss the prosecution and release de- 
 fendant, if she chose, or receipt in full for 
 the judgment: Holmes v. State, 3 G. Gr., 
 501. 
 
 3. Whether she might settle and receipt in 
 full, so as to preclude the county from the 
 right to resort to this proceeding to com- 
 
 pel the putative father to execute a bond, 
 with surety, to indenmify the county, 
 qucere; but she may thus preclude herself 
 and the county from the right to maintain 
 the proceeding to secure to her the mainte- 
 nance of the child: Black Hawk County v. 
 Cotter, 33-125; State v. Noble, 70 . 
 
 4. Object of the proceeding: The pro- 
 ceeding is a civil action of a summary nature, 
 intended to secure the maintenance of the 
 bastai'd, to the end that in no event shall the 
 public become chargeable therewith. There- 
 fore, where another person was chargeable 
 for the maintenance of the bastard, by 
 virtue of having married the mother while 
 enoiente, knowing the fact, and therefore 
 standing to the child in loco parentis, held, 
 that the proceeding could not be maintained : 
 State V. Shoemaker, 62-343. 
 ■ 6. If the child is not born alive, an action, 
 if already commenced, abates, and no judg- 
 ment can be rendered for maintenance, nor 
 for costs. In no event can the defendant be 
 liable for lying-in expenses and medical at- 
 tendance upon the mother : State v. Beatty, 
 61-307. 
 
 G. It is not improper, in a bastardy proceed- 
 ing, to inform the jury that the object of the 
 proceeding is to protect the county from the 
 expense of keeping an illegitimate child : State 
 V. Pratt, 40-631. 
 
 7. Jurisdiction: The action cannot be 
 maintained outside of the jurisdiction within 
 which it arose, but a judgment therein is en- 
 titled to full faith and credit in any other 
 state. (So held, in relation to such proceeding, 
 under the statutes of Indiana) : State of In- 
 diana V. Helmer, 31-370. 
 
 8. Under prior statutes it was held that 
 the jurisdiction of such cases was in the cir- 
 cuit court instead of the district court, as at 
 present: State v. Cook, 31-519; Montgomery 
 County V. Gorman, 34-443. 
 
 9. Procedure under prior statutes dis- 
 cussed: Mills County v. Hamaker, 11-306. 
 
 10. Evidence: The statutory provisions 
 requiring corroboration of the testimony of 
 an accompUce, or of that of the prosecutrix 
 in case of rape, seduction, etc., to warrant a 
 conviction in a criminal prosecution, are not 
 applicable in this proceeding. Neither need 
 the case against defendant be made out be- 
 yond a reasonable doubt; a preponderance- 
 
It6 
 
 BASTARDY — BILLS AND NOTES. 
 
 Evidence. 
 
 of evidence is sufficient : State v. McOlothlen, 
 56-544. 
 
 11. But this rule applies to the question 
 of guilt or innocence upon the whole case 
 and does not dispense with the force and 
 effect to be given to presumptions arising 
 from facts disclosed in evidence ; and where 
 it appeared that the child was born three 
 months after the marriage of prosecutrix, 
 held, that the presumption would arise that 
 the child was begotten by the person to 
 whom prosecutrix was married, and that un- 
 less this presumption was i-ebutted by clear, 
 satisfactory and conclusive evidence, there 
 would not be a prepondei-ance of evidence 
 such as to warrant conviction of defendant : 
 State V. Bomaine, 58-46. 
 
 12. Where the prosecutrix, after cohabit- 
 ing with defendant, returned to his house, 
 held, that proof that defendant had knowl- ■ 
 edge of declarations by her that she did so 
 for the purpose of becoming the mother of 
 a child and holding him for its support was 
 not pertinent in his behalf : State v. Pratt, 
 40-631. 
 
 13. The fact that the jury find that prose- 
 cutrix had connection with other men wiU 
 not preclude them from finding defendant 
 to be the father of the child : Ibid. 
 
 14. In such a proceeding it is always al- 
 lowable to show unchaste conduct with a 
 man other than the defendant, and especially 
 if the circumstances are such as not to 
 preclude the possibility that the other was 
 the father of the child: State v. Karver, 
 65-53. 
 
 15. Where the complainant has been guilty 
 of illicit intercourse with a man other 
 than the defendant, it is competent to show 
 such fact as a circumstance to be used in 
 corroboration of the defendant in denying 
 the paternity of the child ; and this circum- 
 stance may become very important if it is 
 shown who the other man was, and that his 
 intimacies and opportunities continued until 
 after the child in question was begotten: 
 State V. Woodworth, 65-141. 
 
 16. Evidence of the fact that complainant 
 was accustomed, before and after the time 
 the child was conceived, to occupy the same 
 bed with a person who might have been the 
 father of the child is admissible as tending 
 to affect the credibility of her testimony 
 
 charging defendant with the child's pater- 
 nity : State v. Read, 45-469. 
 
 17. Evidence that prosecutrix was preg- 
 nant at the time of the alleged intercourse 
 not only tends to corroborate defendant in 
 testifying that he did not have connection 
 with prosecutrix, but shows that he was not 
 the father of the chUd, even if he did have 
 connection with prosecutrix as alleged : State 
 V. Smith, 61-538. 
 
 18. Also held, that evidence that the child 
 was prematurely born did not corroborate 
 the testimony of prosecutrix that defendant 
 had connection with her at a time which was 
 too near the birth of the chUd to allow full 
 period of gestation : Ibid. 
 
 19. Evidence in a particular case held suf- 
 ficient to support a verdict against the de- 
 fendant : State v. Quinton, 59-363. 
 
 20. In a particular case, held, that under 
 the evidence the instruttions were not as 
 favorable to the defendant as they should 
 have been : State v. Smith, 61-538. 
 
 As to the resemblance of child to defend- 
 ant, see EviDBNCE, §§ 813-815, 
 
 BILL OF EXCEPTIONS. 
 
 See Exceptions. 
 
 BILL OP LADING. 
 
 See Cakriebs. 
 
 BILL OF PARTICULARS. 
 
 See PlJEADINGS, I, o. 
 
 BILLS AND NOTES. 
 
 I. FOEM ; REQUISITES ; CONSTKUCTION; NE- 
 GOTIABILITY. 
 
 a. Negotiability of different classes 
 of instruments. 
 
BILLS AND NOTES, I, a. 
 
 177 
 
 Form, etc. — Negotiability. 
 
 I. FOEM, ETC. — continued. 
 
 b. Certainty. 
 
 Parties: See Contracts, VI. 
 
 As to liability of parties sign- 
 ing in a representative capacity, 
 see Agency, gg' 101-13.J; Con- 
 tracts, §§ 12-14. 
 
 As to liability of administrator 
 or executor upon, see Estates of 
 Decedents, §§ 79-82. 
 
 As to power of partner to bind 
 firm by note, see Partnership, 
 §§ 63-68. 
 
 c. Execution and delivery. 
 
 d. .Con.^truction. 
 
 e. Illegality. 
 II. Consideration. 
 
 IIL Negotiation and transfer: accept- 
 ance. 
 
 a. Methods of transfer. 
 
 b. Time of transfer. 
 
 c. Pleading and evidence. 
 rv. Maturity. 
 
 a. Days of grace. 
 
 b. When payable. 
 
 V. Presentment for acceptance or 
 
 PAYMENT ; DEMAND ; NOTICE ; PRO- 
 TEST. 
 
 VI. Liability of the parties. 
 
 a. Maker. 
 
 b. Indorser. 
 
 c. One u>ho transfers inthout in- 
 
 dorsement. 
 
 d. Acceptor. 
 
 e. Drawer. 
 
 As to the effect of a draft, check 
 or order as constituting an equi- 
 table assignment, see Assignment, 
 §§ 53-63. 
 
 As to liability of guarantors and 
 sureties, see Guaranty and 
 Suretyship. 
 VIL Rights of the transferee. 
 
 a. Under what circumstances pro- 
 
 tected against equities and de- 
 fenses. 
 
 b. Against what equities and de- 
 
 aa. If an innocent purchaser. 
 bb, // not an innocent pur- 
 chaser. 
 Vol. 1-13 
 
 Vni. Defenses as between the original 
 parties. 
 
 a. Forgery, fraud, want of consider- 
 
 ation, illegality, etc. 
 
 b. Payment, etc. 
 IX. Action upon. 
 
 As to notes in subscription to railroads, see 
 Contracts, §§ 471, 473. 
 
 As to effect of alteration, see Alteration 
 of Instrumejits. 
 
 I. Fobm; requisites; constkuctiox ; 
 negotiability. 
 
 a. Negotiability of different classes of 
 instruments. 
 
 1. Foreign billof exchange: Abill drawn 
 in one state upon a person residing in another 
 is a foreign bill of exchange: Bernard v. 
 Barry, 1 G. Gr., 388. 
 
 2. Draft: It appears that a draft, drawn 
 by a banker in favor of a third party as payee, 
 against funds on deposit with a banker in an- 
 other state, is not a foreign biU of exchange, 
 but a banker's check : Roberts v. Corbin, 26- 
 815. 
 
 3. A draft drawn by one banker upon an- 
 other and purporting to be drawn upon funds 
 deposited, and payable upon demand, is a 
 banker's check: Northioestem Coal Co. v. 
 Boieman, 69-150. 
 
 4. A certificate of deposit payable at a 
 certain date to the order of the payee is a 
 negotiable instrument: Bean v. Briggs 1- 
 488. 
 
 5. But such a certificate of deposit is not 
 an equivalent of money; so held under a 
 statute providing that, in making redemption 
 from execution, the amount required might 
 be paid in money or its equivalent: Dough- 
 erty V. Hughes, 3 G. Gr., 93. 
 
 6. Municipal bonds: Bonds of a munici- 
 pal corporation, made in fqrm and method of 
 issue negotiable by delivery, to be bought 
 and sold in the money and stock markets, 
 are a class of negotiable sureties : Callanan 
 V. Brown, 31-383. 
 
 7. The holder of such bonds for value be- 
 fore maturity takes free from any defense 
 not affecting the authority of the munici- 
 pality to issue them, and is not required to 
 go behind the records to determine whether 
 
178 
 
 BILLS AND NOTES, I, a. 
 
 Negotiability. 
 
 authority to issue them existed: Clapp v. 
 Cedar County, 5-15. 
 
 8. If the power to issue bonds never ex- 
 isted, no subsequent transfer thereof can give 
 them the effect of legal liabilities in the hands 
 of any one. But if the power has been dele- 
 gated, as', for instance, by a vote, authorizing 
 a loan, then any irregularity in conducting 
 the vote, or other imperfection in the exer- 
 cise of the power, will not vitiate them in the 
 hands of a honcifide holder, either in a direct 
 or collateral proceeding; Hull v. Marshall 
 County, 12-143. 
 
 9. Municipal bonds are not only negotiable 
 instruments, the holders of which are pro- 
 tected to the same extent as holders of ne- 
 gotiable paper, but they are, like bank bills 
 and national cun-ency, chattels, in so far as 
 that character tends to relieve them from the 
 incidents and burdens incident to choses in 
 action and gives to them a merchantable and 
 vendible quality. The right and title of the 
 first purchaser from the corporation is as 
 fully protected as are those of a subsequent 
 purchaser : Griffith v. Burden, 35-138. 
 
 Further as to municipal bonds, warrants, 
 etc., see Municipal Corporations, I, d. 
 
 10. Warrants or orders of school dis- 
 tricts, cities, etc. : An order upon the treas- 
 ui-er of a school district, although payable to 
 bearer and negotiable in form, does not pos- 
 sess the characteristics of negotiable paper: 
 National State Bank v. Independent Dist., 
 39-490. 
 
 11. The indorsee thereof, before maturity, 
 for value, in good faith, does not take fi-ee 
 from equities: Shepherd v. District T'pi, 23- 
 595. 
 
 12. The fact that such warrants are in ex- 
 cess of indebtedness to be paid can be urged 
 against a bona fide holder : Eastman v. Dis- 
 trict T'p, 40-438. 
 
 13. Such orders are not bills of exchange, 
 but the mere promissory notes of the munic- 
 ipal corporation, and although they may run 
 to order or bearer, and suit thereon be 
 brought by the holder in his own name, it 
 does not follow that the paper is invested 
 
 with all the qualities of negotiability : Clark 
 V. Des Moines, 19-199, 
 
 14. Railroad bonds; issue: Bonds a;e 
 said to be "issued* only after they have 
 passed into the hands of purchasers: Dun- 
 ham V. Isett, 15-284. 
 
 15. A land warrant is a mere chattel, not 
 assignable by delivery, or blank indorsement : 
 Fort V. Wilson, 8-153. 
 
 10, A note payable in property is not 
 negotiable : McCartney v. Smalley's Adm'rs, 
 11-85. 
 
 17. Such an instrument becomes a cash 
 note if the payor fails to make payment at 
 the time and in the manner specified : Hall 
 V. Hunter, 4 G. Gr., .539. 
 
 1 8. Under a statutory provision ' that notes 
 payable in property may be made negotiable, 
 held, that the use of the words, "without 
 defalcation," was sufficient to evidence that 
 intent: Council Bluffs Iron Works v. Cup- 
 pey, 41-104. 
 
 19. But the use of the words "or bearer" 
 held not sufficient to make such an instru- 
 ment negotiable: Peddicord v. Whittam. 
 9-471. 
 
 20. And so held, also, in regard to the use 
 of the words "or order" in a receipt for 
 corn: Merchants', etc., Bank v. Hewitt, 
 3-93. 
 
 21. A note payable " in currency " or "in 
 cnrreiit funds" is not prima facie a nego- 
 tiable instrument either by commercial law 
 or under the statutory provision last above 
 referi-ed to, even though made payable at a 
 banking house: Rindskoff v. Barrett, 11-172; 
 Huse V. Hamblin, 39-501 . 
 
 22. But evidence of the general and cus- 
 tomary meaning of those expressions at the 
 place where the instrument is payable is 
 admissible to show what the parties meant 
 by such words: Pilmer v. Branch of State 
 Bank, 16-321. 
 
 23. And if it appea,rs by parol evidence 
 that by the use of such terms the parties 
 meant and understood that the instrument 
 was payable in money, the attributes of 
 negotiability are thereby imparted to it: 
 
 1 Code, § 2085. Instruments by which Hie maker promises to pay a smn of money in property or labor, or to pay 
 or deliver property or labor, or acknowledgres property or labor or money to be due to another, are negotiable 
 instruments, with all the incidents of negotiability, whenever it is manifest from their terms that such was the 
 intent of the maker; but the use of the technical words " order " or " bearer " alone will not manifest such 
 intent. 
 
BILLS AND NOTES, I, b. 
 
 179 
 
 Certainty. 
 
 Haddock v. Woods, 46-433. And see Haddock 
 i\ Citizens' Nat. Bank, 53-542. 
 
 24. A note payable to bearer, naming 
 him, is, in legal effect, payable to the person 
 named therein, the same as if the word bearer 
 were omitted, and is non-negotiable: War- 
 ren V. Scott, 32-33. 
 
 25. Negotiable and payable at particu- 
 lar place: The provision in a note, that it is 
 negotiable and payable at a particular place, 
 has no effect on its negotiability and does 
 not restrain its being negotiated elsewhere : 
 Schoharie County Nat. Sank v. Bevard, 51- 
 257. 
 
 26. Coupled -with chattel mortgage: 
 Where an instrument contained all the ele- 
 ments of a negotiable note, but in connec- 
 tion therewith provisions giving the payee of 
 the note security in the nature of a chattel 
 mortgage, held, that the negotiability of the 
 instrument was not thereby affected : Bank 
 of Carroll v. Taylor, 67-573. 
 
 2 7. Notes under seal : Under a statute de- 
 claring that promissory notes, bonds, due bills, 
 etc. , should be assignable by indorsement in 
 the same manner as inland bills of exchange, 
 held, that the fact that a note of such descrip- 
 tion was under seal would not prevent the 
 application of the statute to it: Temple v. 
 Hays, Mor., 9. 
 
 b. Certainty. 
 
 28. Certainty as to amount: The figures 
 in the margin of a note are no part of the 
 instrument. They constitute a mere memo- 
 randum, and cannot supply the omission in 
 the body of the instrument to state the 
 amount, where the blank left for the inser- 
 tion of the amount is not filled up : Hollen 
 V. Davis, 59-444. 
 
 29. Where a, note provided for the pay- 
 ment of a certain amount, with the further 
 provision that the payee might at any time 
 he deemed himself insecure, even before the 
 maturity of the instrument, take possession 
 of the property in consideration of which 
 the note was executed, and sell it on notice, 
 held, that such provision rendered uncertain 
 the amount which was to become due at 
 maturity, and, therefore, that the instru- 
 ment was not negotiable : Smith v. Marland, 
 59-645. 
 
 30. A note containing the stipulation that 
 the amount is subject to diminution or re- 
 duction by showing overcharges, is a promis- 
 sory note, and the maker, being sued thereon, 
 has the burden of showing the ex'stence of 
 overcharges, if any such are claimed : Oreen 
 V. Austin, 7-531. 
 
 31. Attorneys' lees: A provision in a note 
 for the allowance of collection and attorneys' 
 fees, if not paid when due and suit is brought 
 thereon, will not affect the negotiability of 
 the note. Such provision relates rather to 
 the remedy than to the sum which the maker 
 is bound to pay : Sperry v. Horr, 33-184. 
 
 As to attorney's fee, in general, see At- 
 torneys, IV. 
 
 32. Certainty as to time of payment: An 
 instrument, which by its terms is not to be- 
 come due any time except at the option of 
 the maker, is uncertain as to the time of pay- 
 ment and not a negotiable instrument : Wood- 
 bury v. Roherts, 59-348. 
 
 33. A note payable upon demand. AeW not 
 rendered uncertain as to time of payment by 
 the insertion of the jDrovision, ''payable at 
 Cincinnati, when convenient," for the reason 
 that such clause could not be construed as 
 qualifying the other words of the instru- 
 ment : Works v. Hershey, 35-340. 
 
 34. Payable out of partfcnlnr fund: A 
 note payable ' ' twelve months after date or be- 
 fm-e, if made out of the sale of Drake's hay- 
 fork and hay-carrier," is sufficiently certain 
 as to time of payment, to be negotiable: 
 Charlton v. Reed, 61-166. 
 
 35. So, where an instrument, in addition 
 to the ordinary terms of a note, contained 
 certain provisions relating to the sale of col- 
 lateral securities by the payee and the appli- 
 cation of the proceeds on the note, held, that 
 under the peculiar language of the provisions, 
 there being nothing stipulated for by way of 
 condition precedent to the action on the note, 
 the instrument was not rendered non-negoti- 
 able : Knipper v. Chase, 7-14.5. 
 
 36. But where a note contained the fol- 
 lowing stipulation, "if this agent [the maker] 
 does not sell enough in one year, one more is 
 granted," held, that payment at the end of 
 the year was provided for out of a particular 
 fund, and as the note was therefore pay- 
 able only on the happening of a condition, it 
 was not svTfficiently certain as to the time, to 
 
180 
 
 BILLS AND NOTES, I, c, d. 
 
 Execution and deliv^ery. — Construction. 
 
 be negotiable during that period, and al- 
 though it was payable absolutely at the ex- 
 piration of two years, yet not having been 
 negotiable from the first, it was not negotiable 
 at all: Miller v. Poage, 56-96. 
 
 c. Execution and delivery. 
 
 37. Execution: The fact that a note is 
 written on the back of a paper containing a 
 written contract does not alter its character : 
 Dunning v. Rumbaugh. 36-566. 
 
 38. Sign.ature: Statements by one of the 
 makers of a promissory note, made at the 
 time of its delivery, as to the fact of signature 
 by a co-maker, are not admissible as against 
 the latter: Smith v. Wagaman, 58-11. 
 
 As to authority of agent to sign, see 
 Agency, § 75. 
 
 39. Delivery is more than the mere man- 
 ual act of passing over the instrument. It re- 
 quires the assent of the mind as well : Marsh 
 V. Griffln, 42-403. 
 
 40. Deliverj' without authority: Under 
 particular facts, held, that delivery of a note 
 in suit made by an agent of the maker was 
 without authority, and that therefore the 
 maker did not become liable: Ware ik Smith, 
 63-159. 
 
 41. Where one person delivers to another 
 his negotiable promissory note under an 
 agreement that it is not to be put in circula- 
 tion until the happening of some event, or 
 that in a certain contingency the note is not 
 to be considered as delivered, and the person 
 to whom it is delivered puts it in circulation, 
 an innocent indorsee for value, before ma- 
 turity, may maintain an action thereon, not- 
 withstanding the violation of the agi-eement : 
 Oraffv. Logue, 61-704. 
 
 42. The principle that sureties who sign 
 a negotiable instrument and leave it in the 
 hands of the principal, who delivers it, can- 
 not be heard to say that they signed it upon 
 conditions which were not fulfilled, is not 
 applicable to instruments not negotiable: 
 Daniels v. Goieer, 54-319. 
 
 43. Therefore, where the instrument was 
 signed by sureties and left with a third per- 
 son to be delivered when signed by an ad- 
 ditional surety, and such person delivered 
 it to the principal without the condition 
 being performed, and the principal delivered 
 
 it to the payee, held, that the sureties were 
 not bound thereby: IKd. 
 
 44. Delivery in blank: One who places 
 his signature to a blank instrument and in- 
 trusts it to another for some purpose will 
 be liable if such person fraudulently fills it 
 up as a promissory note, and it is negotiated 
 before maturity to an innocent purchaser for 
 value: McDonald v. Muscatine Nat. Bank, 
 37-819. 
 
 45. Reissue: If a promissory note be paid 
 by the maker and again put by him into cir- 
 culation, he is liable thereon as maker to any 
 indorsee into whose hands it may fall after 
 its reissue : Wilkerson v. Daniels, 1 G. Gr., 
 179. 
 
 46. Accommodation paper: The fact that 
 accommodation paper has been once dis- 
 counted and afterward taken up by the 
 party accommodated does not render it void 
 in his hands, but he may again use it, and it 
 will be good in the hands of one who takes it 
 for a proper purpose with knowledge of these 
 facts, but without knowledge of any agree- 
 ment between the parties as to the purpose 
 for which it was to be used: Washington 
 Bank v, Krum, 15-53. 
 
 d. Construction. 
 
 47. Lex loci: The law of the place of de- 
 livery of a note, and not that of the place 
 where dated, is the lex loci contractus: Hart 
 V. Wills, 53-56. 
 
 48. The indorsement on a note constitutes 
 a distinct contract and is governed by the 
 law of the state where made: National 
 Bank v. Green, 33-140; Hiise v. Hamblin, 
 29-501 ; Chatham Bank v. Allison, 15-357. 
 
 49. The law of the place where a draft is 
 made payable governs in respect to the allow- 
 ance of days of grace: Thorp v. Craig, 10- 
 461. 
 
 50. As to the extent and nature of the lia- 
 bility of the drawer of a draft, the lex loci 
 contractus governs : Ibid. 
 
 51. Protest for the purpose of holding a 
 drawer should be in accordance with the law 
 of the place where the draft is drawn : Ibid. 
 
 52. But apparently contra, holding that 
 protest and notice must be in accordance 
 with the law of the place of payment, see 
 Allen V. Harrah, 30-363. 
 
BILLS AND NOTES, I, d, e. 
 
 181 
 
 Construction.— Illegality. 
 
 53. Place of payment: The fact that the 
 note is dated at one place will not fix that as 
 the place of payment, if it is, in fact, deliv- 
 ered elsewhere : Hart v. Wills, 52-56. 
 
 54. Payable at particular place: Where 
 a note was made payable to "the Equitable 
 Life Insurance Co. of Iowa, at its office," 
 and upon the note, preceding the date, were 
 the words "Office of the Equitable Life In- 
 surance Co., Des Moines, Iowa," 7ieM, that it 
 sufficiently appeared that the office of the 
 company was at Des Moines, and that the 
 court would take judicial notice as to what 
 county Des Moines was situated in : Equita- 
 ble L. Ins. Co. V. Gleason, 56-47. 
 
 55. Interest: The language, "with in- 
 terest annually," means that interest is pay- 
 able annually : Failing v. Clemmer, 49-104. 
 
 5G. Where the note contained the pro- 
 vision, "with ten per cent, after due," the 
 word interest not appearing, held, that the 
 question of construction of the instrument 
 was a matter of law for the court, and that 
 it should be construed as providing for ten 
 per cent, interest after due : JSigley v. Newell, 
 38-516. 
 
 57. Where a note provided for interest at a 
 certain rate, and a mortgage given to secure 
 it provided for the payment of money with 
 the same rate of interest, with the additional 
 provision that it should be ' ' payable annually 
 according to the terms of" the note, held, 
 that the two instruments were not inconsist- 
 ent, but that the mortgage specifically pro- 
 vided for something as to which the note 
 was silent, and was to be regarded as incor- 
 porating such provision into the note : Dob- 
 bins V. Parker, 46-357. 
 
 58. Where the provision of a note as to in- 
 terest was, "if not paid when due to bear 
 twenty-five per cent, interest," held, that 
 upon failure to pay at maturity the maker 
 became liable for interest from date : Horn 
 V. Nash, 1-304. 
 
 59. A promissory note, with "interest 
 from date," draws the same rate of interest 
 after maturity as before : Lucas v. Piekel 
 30^90. 
 
 e. Illegality. 
 
 eo. Gambling contracts: The effect of a 
 statute which makes an instrument based 
 upon a gambling transaction void and of no 
 
 effect is to render such instrument void in 
 the hands of innocent holders: Traders' 
 Bank v. Alsop, 64-97; Craig v. Andreivs, 
 7-17. 
 
 61. Action cannot be maintained upon an 
 instrument of that character: Sipe v. Fin- 
 arty, 6-394. 
 
 62. Even if the note is given upon an ap- 
 parent consideration, the agreement between 
 the parties may be such as to make it void as 
 a wagering contract: Craig v. Andrews, 
 7-17. 
 
 See, also, Contracts, g§ 833-353. 
 
 63. Sunday contracts: A note executed 
 upon Sunday is within the prohibition of the 
 statute imposing a penalty upon any one 
 engaged "in any labor" upon that day, and 
 is void in the hands of the payee or his as- 
 signees: Sayre v. Wheeler, 31-113; S. C, 
 33-559. 
 
 64. A note signed on Sunday, but not in 
 fact delivered until Monday, is not subject to 
 the objection that it is a Sunday contract : 
 Bell V. Mahin, 69-408. 
 
 05. Where it appears that a note was in 
 fact executed on Sanday, but on its face it 
 bears another date, and there is nothing to 
 suggest its invalidity, it will be valid in the 
 hands of an innocent purchaser, without no- 
 tice, before maturity : Clinton Nat. Bank v. 
 Graves, 48-338. 
 
 66. One who takes such a note by transfer, 
 even after maturity, without notice, may re- 
 cover thereon. The defense is not an equitv 
 which may be set up against a purchaser 
 after maturity : Leightmdn v. Kadetska, 58- 
 676. 
 
 See, also. Contracts, §g 300-317. 
 
 67. Public policy: Notes to secure the lo- 
 cation of a railway to a certain point, or to 
 secure a change of location therein, are not 
 in oontrayention of public policy and may be 
 valid : First Nat. Bank v. Hendrie, 49-403. 
 
 68. Kevenne stamp: The failure to affix a 
 stamp wiU not invalidate the instrument un- 
 less its omission was with intent to defraud 
 the government : Works v. Hershey, 35-340 : 
 Riaord v. Jones, 33-36. 
 
 69. If there is nothing on the face of the 
 instrument to show that it was post-stamped, 
 in violation of the provisions of the United 
 States revenue laws, requiring the affixing 
 of a stamp at the time of execution, it will 
 
182 
 
 BILLS AND NOTES, IL 
 
 Consideration. 
 
 be good in the hands of an indorsee or holder, 
 for value, who receives it in ignorance of the 
 fact that it was not stamped until after issue : 
 Blaokwell v. Denie, 33-63; Lake v. Streeter, 
 34-601. 
 
 70. Where the note is fraudulently left 
 unstamped at the time of its execution, but 
 afterwards and before maturity it gets into 
 the hands of a bona fide purchaser properly 
 stamped, the fact of fraud in stamping is no 
 defense: Anderson v. Starkweather, 28-409. 
 
 71. Where the instrument bears the proper 
 stamp at the time it is transferred to an inno- 
 cent holder, for value, the presumption that 
 the stamp was affixed at the proper time 
 and by the proper party is conclusive in his 
 favor : Robinson v. Lair, 81-9. 
 
 72. But an indorsee of a note improiierly 
 stamped, who takes it with knowledge of 
 such defect, is in no better condition than 
 the payee: First Xat. Bank v. Dougherty, 
 29-260. 
 
 73. The fact that a note is not properly 
 stamped when intrusted to another person 
 for negotiation will not affect the .rights of 
 a &ona ^de holder thereof: Gage v. Sharp, 
 24-15. 
 
 74. The mode of cancellation of the rev- 
 enue stamp is not essential to the validity of 
 the note: Robinson v. Lair, 31-9. 
 
 75. Where a note was stamped by the 
 payee in pursuance of authority given by the 
 maker at tlie time of execution, held, that it 
 was not, on that account, void : ^Mitchell v. 
 Smith, 33-484. 
 
 As to the effect of failure to stamp, see 
 
 also, Contracts, §g 288-290. 
 I 
 
 II. COXSIDERATION. 
 
 76. Presumed: A promissory note imports 
 that it was made ujjon sufficient considera- 
 tion: First Nat. Bank v. Hurford, 29-579. 
 
 77. The presumption is that tlie considera- 
 tion was sufficient, and it is for the maker re- 
 lying upon want of consideration to rebut 
 such presumption: Trustees of Iowa College 
 V. Hill, 12-462. 
 
 78. The act of giving a note is prima facie 
 evidence of consideration: Thompson v. 
 Maugh, 3 G. Gr., 343. 
 
 79. Joint note: Where a note is executed 
 by joint makers, one cannot avoid payment 
 
 by showing that the other received the con- 
 sideration. It is presumed that it was en- 
 tered into on the credit of the names attached 
 to the note: Myers v. Sunderland, 4 G. Gr., 
 567. 
 
 80. Parol eyideiice to vary: Where the 
 maker of a note executes the same at the 
 time of receiving the amount of money 
 therein specified, the presumption is that the 
 money received constitutes the consideration 
 of the note, and this presumption cannot be 
 rebutted by parol proof of a contemporane- 
 ous agreement, showing the transaction to 
 have been altogether different, and trans- 
 forming the note into a mere memorandam 
 of an agreement which would show the note 
 to be without consideration : Dickson v. 
 Harris, 60-727. 
 
 81. Illegality: A particular form of ille- 
 gality in the consideration declared by statute 
 may be insufficient to constitute a defense to 
 instruments already in existence: Hill v. 
 Smith, Mor., 70. 
 
 82. Griveii for intoxicating liquors: 
 Where the consideration is in part intoxicat- 
 ing liquors, it is by statute (Code, § 1550) 
 made utterly null and void : Taylor v. Pickett, 
 53^67. 
 
 83. Where defendant, having purchased 
 intoxicating liquors of one B., which were 
 unlawfully sold, in payment; therefor, as- 
 sumed to pay an amount which B. owed 
 plaintiff, plaintiff being a party to the nova- 
 tion, and accepting defendant as his debtor 
 instead of B., held, that defendant could not 
 defeat plaintiff's recovery on the ground that 
 the contract for the purchase of liquors from 
 B. was void by the statute : Bower v. Webber, 
 69-386. 
 
 84. To secure location of public build- 
 ings: Where a note was given to one of the 
 trustees of the state reform school as a sub- 
 scription for the purpose of procuring a site 
 therefor and thus securing the location 
 thereof at a certain place, lield, that, the 
 school being located at the place designated, 
 the maker of the note was liable : Wisner v. 
 McBride, 49-320. 
 
 85. Failure of consideration: AVhere a 
 note was executed as a subscription to an 
 endowment fund, and, as alleged, in con- 
 sideration of an agreement by the payee that 
 the principal of the fund should remain un- 
 
BILLS AND NOTES, II. 
 
 183 
 
 Consideration, 
 
 diminished, held (by a divided court), that 
 the diminition of the fund would not oper- 
 ate as a failure of consideration: Simpson 
 Centenary College v. Bryan, 50-293. 
 
 8G. Partial failure: Where a note is 
 given under an entire contract for the pur- 
 chase of two pieces of real property, a failure 
 of title to one will not defeat the note, but 
 the title to the other tract will be a suflScient 
 consideration: Wadsworth v. Nevin, 64-64. 
 
 87. Waiver; renewal note: A party ex- 
 ecuting a note as a renewal of a former 
 note, cannot, as against the payee, set up 
 partial failure of consideration, of which he 
 had knowledge at the time of the renewal. 
 The surrender of the original note will be 
 deemed the consideration for the renewed 
 one: Keyes v. Mann, 63-560. 
 
 88. Want of consideration may be shown 
 as bearing upon an issue as to whether the 
 instrument is a forgery: Dpnahue v. Wag- 
 ner, 68-358. 
 
 89. Parol condition : While partial failure 
 of consideration may be shown as between 
 the parties, it is not competent to prove by 
 IJarol testimony that, on certain contingencies, 
 the note should be valid only for a portion of 
 the amount stated on the face thereof : Ather- 
 ton V. Dearmond, 33-353. 
 
 90. Rescission not necessary: Where the 
 consideration of a note has failed, recovery 
 thereon may be defeated although payee has 
 not rescinded or offered to rescind the con- 
 tract under which the note was given : Moore 
 V. Moore, 39-461. 
 
 91. Patent-rig'ht : Where the considera- 
 tion of a promissory note was the assignment 
 of a patent-right, held, that the question was 
 not whether the payee had intended or at- 
 tempted to make such assignment, but 
 whether the assignment vested the maker of 
 the note with the right contracted for : Sny- 
 der V. Kurtz, 61-593. 
 
 93. Stock in railway company: Where a 
 county voted to issue negotiable bonds in aid 
 of a railway in exchange for stock, but the 
 transaction was, after the sale of a part of the 
 bonds, held illegal, and the balance not is- 
 sued, the county being compelled to pay 
 those bonds issued, because in the hands of 
 innocent holders, held, that such bonds were 
 not without consideration, although no stock 
 was ever issued, the contract on the part 
 
 of the county not being fully performed so 
 as to entitle it to the stock agreed upon : Jef- 
 ferson County V. Burlington & 21. R. R. Co., 
 66-385. 
 
 93. Support of child: Agreement of the 
 natural parent of a child for his sujaport by 
 adopting parents with whom an agreement 
 for retransfer of the child to the natural 
 parent had been made, but not yet consum- 
 mated, held, sufficient to support a note and 
 mortgage : Clayton v. Wfdtaker, 68-413. 
 
 94. Compromise of claim ; burden of 
 proof: In an action on a note, the considera- 
 tion for which was the settlement of a claim 
 before suit, held, not necessary for the payee 
 to show that lie had a probable cause of ac- 
 tion in the claim settled, but that the burden 
 of proof was upon defendant to show the 
 contrary, in order to impeach the considera- 
 tion : Sidlivan v. Collins, 18-228. 
 
 95. It is not necessary, in order to support 
 a note given in settlement of a disputed 
 claim, that the claim compromised be shown 
 to be valid. If it was doubtful, it would be 
 a sufficient consideration: Keefe v. Vogle, 
 86-87. 
 
 96. The compromise or settlement of a 
 claim which is wholly illegal and unfounded, 
 and upon which no suit has been brought, is 
 not a sufficient consideration: Tucker v. Rank, 
 43-80. 
 
 97. The compromise of a claim before suit 
 brought will not be a sufficient consideration 
 to support a note unless the claim be sustain- 
 able at law or in equity, or at least doubtful, 
 either in its right or amount: Sidlivan v. 
 Collins, 18-228. 
 
 98. Extension of time upon new security: 
 Giving a new note with security in part pay- 
 ment of an unse(jured note is a sufficient 
 consideration for the extension of time of 
 payment: Gates v. Hamilton, 12-50. 
 
 99. Extension of a debt due from a third 
 person is a good consideration for a note; 
 and when a note is executed upon aii agree- 
 ment between the jiarties thereto, that time 
 on the original debt shall be extended, the 
 consideration is sufficient even though the 
 note is executed at the request of the original 
 debtor : Atherton i'. Marcy, 59-650. 
 
 100. Extension of time or release of in- 
 dorser is not sufficient consideration for a 
 new indorsement by an accommodation 
 
184: 
 
 BILLS AND NOTES, III, a. 
 
 Negotiation and transfer.— Method. 
 
 indorser if the holder has not good reason to 
 suppose that the new indorser understood 
 that he was incuiTing a new liability thereby, 
 and proof by the new indorser that he did 
 not know of the release or extension might 
 be sufficient to prove want of consideration : 
 Lamed v. Ogilby, 20-410. 
 
 Further as to consideration, see Con- 
 tracts, VIII. 
 
 III. ]!^EGOTIATION AND TEANSFEE; AC- 
 CEPTANCE. 
 
 a. Method of transfer. 
 
 101. By delivery: A promissory note 
 made payable to bearer is negotiable and 
 transferable by mere delivery, and needs no 
 indorsement. Any person bearing or pre- 
 senting the note is, in that case, the party to 
 whom the maker of the note promises to pay 
 it : Elliott V. Corbin, 4-564. 
 
 102. Such a transfer is a parol assignment : 
 Creightonv. Oordon, Mor., 41. 
 
 103. A note not payable to bearer cannot 
 be transferred by mere delivery: Dawson v. 
 Jewett, 4 G. Gr., 157; Mainei' v. Reynolds, 
 4 G. Gr.j 187. 
 
 104. If a note payable to bearer is trans- 
 ferred by delivery, the holder may sue thereon 
 in his own name : Shelton v. Sherfey, 3 G. 
 Gr., 108. 
 
 105. Assignment without indorsement: 
 A note payable to payee or order may be as- 
 signed without indorsement so that (under 
 Code, g§ 2543, 2546) the assignee may sue 
 in his own name, but subject to any de- 
 fense or set-ofl existing in behalf of the 
 maker against the assignor, before notice of 
 assignment: Younker i: Martin, 18-143; 
 Pearson v. Cummings, 28-344. 
 
 lOG. A transfer by a separate instrument 
 is an assignment and not an indorsement: 
 Franklin v. Twogood, 18-515. 
 
 107. An assignment by the payee in writ- 
 ing on the note constitutes an indorsement : 
 Sears v. Lantz, 47-658. 
 
 108. Indorsement to bearer: After an in- 
 dorsement of a note to a certain person, or 
 bearer, it becomes payable to any person, as 
 indorsee, who may be in possession : Shelton 
 V. Sherfey, 3 G., Gr., 108. 
 
 109. Indorsement in blank: The writing 
 on the back of a note of the words " I herebv 
 
 indorse within note," held to be a blank in- 
 dorsement : Conger v. Babbet, 67-13. 
 
 110. Tlie indorsement of a guaranty and 
 waiver of demand and notice of non-payment 
 is a sufficient indorsement to transfer title : 
 Robinson v. Lair, 31-9. 
 
 The indorsement of a non-negotiable 
 note is equivalent to the making of a new 
 note by the indorser : See infra, § 274. 
 
 111. Indorsement and guaranty; valid- 
 ity; stamp: A writing on the back of a 
 note by the payee in the form of an indorse- 
 ment, but also containing words of guaranty, 
 may be considered either as an indorsement 
 or as a guaranty, and although, considered as 
 a guaranty, it may be void because not 
 stamped as formerly required by the United 
 States revenue laws, it may still be recovered 
 on as an indorsement : Muscatine Nat. Bank 
 V. Smalley, 30-564. 
 
 112. Unauthoi'ized indorsement: An in- 
 dorsement of the name of the owner by a 
 person having no authority to make such in- 
 dorsement confers no title upon the indorsee: 
 Thorpe v. Dickey, 51-676. 
 
 113. A power ot attorney which gives 
 authority "to sell, convey and dispose of any 
 and all property, real and personal, give bill 
 of sale of personal property, and do and per- 
 form every act and thing whatsoever re- 
 quired in the premises," etc., confers upon 
 the agent power to transfer a promissory note 
 of the principal by indorsement: Gould v. 
 Bowen, 26-77. 
 
 114. An indorsee for collection cannot 
 transfer the note to another who is aware of 
 the facts ; Claflin v. Wilson, 51-15. 
 
 115. Indorsement for collateral secu- 
 rity : When the payee of a note indorses it 
 and delivers it to the bank as collateral se- 
 curity, he thereby vests the bank with title 
 thereto, and unless its rights with reference 
 to the instrument are expressly limited, it 
 has power to make such disposition of it as 
 it may elect, being answerable for its value, 
 and a transferee thereof acquires good title 
 thereto : Rand v. Barrett, 66-781. 
 
 lie. Where a note and mortgage are given 
 to another for the purpose of enabling him 
 to borrow money thereon, he has authoritj' 
 to pledge them as collateral security for his 
 own note for money borrowed : Tomblin v. 
 Callen, <59-229. 
 
BILLS AND NOTES, III, a. 
 
 18,^ 
 
 Method of transfer. 
 
 117. One partner without the consent of 
 his copartner connot indorse a partnership 
 note in payment of an individual debt: 
 Fletcher v. Anderson, 11-338. 
 
 118. But this rule does not apply after the 
 note has ceased to belong to the firm and be- 
 come property of the iudividual partner: 
 Ibid. 
 
 119. Where, after the dissolution of the 
 firm, a note payable to the firm is found in 
 the possession of one of the members, regu- 
 larly indorsed in the firm name, the law pre- 
 sumes that he came rightfully in possession 
 of it, either in the regular course of busiaess 
 or at the dissolution of the firm, and will re- 
 gard him as the lawful owner until circum- 
 stances of suspicion are shown : Ihid. 
 
 120. Indorsement of a note by a member 
 of the firm not assuming to bind the" firm 
 will not constitute a warranty of the gen- 
 uineness of the signature of the firm's name 
 to the note binding upon the firm : Miller v. 
 House, 67-737. 
 
 121. Assignment by foreign executor: 
 The holder of a note acquiring it by assign- 
 ment from an executor may maintain action 
 thereon in the courts of a state other than 
 that in which the executor was appointed : 
 Campbell v. Broicn, 64-435. 
 
 122. Conversion: One who purchases a 
 note with notice of the right of another 
 party thereto acquires no title, and is liable 
 for conversion in taking possession of and 
 collecting such note: Allison v. King, 
 35-56. 
 
 123. An agreement not to transfer, while 
 it may be an independent covenant, upon 
 breach of which the obligor may be liable, 
 will not destroy the negotiability of the note. 
 The fact of such agreement without more 
 will not be suflB-Cient to charge the holder 
 with notice of defenses : Leland v. Parriott, 
 35-454. 
 
 124. Striking out subsequent indorse- 
 ment: The payee in possession is presumed 
 to have a beneficial interest in the note not- 
 withstanding any indorsement thereon, and 
 may bring an action in his own name : Oor- 
 don V. Pitt, 3-385. 
 
 12,5. In* such case, an indorsement on the 
 back which appears to be stricken oif , will 
 be presumed to have been erased on due 
 authority: Goddard v. Cunningham, 6-400. 
 
 126. The real owner and holder has the 
 right to erase a special indorsement on the 
 note, and need not explain such erasure in 
 offering the note in evidence : Jones v. Berry- 
 hill, 25-389. 
 
 127. So, in a suit upon a draft, payable to 
 plantiflf, bearing several unerased indorse- 
 ments, held, that testimony by the plaintiff 
 that he had, on the draft being protested, 
 taken it up and was now the owner thereof, 
 was admissible, but superfluous, for being in 
 possession he had prima facie the right to 
 erase the prior indorsements and recover as 
 payee : Piliner v. Branch of State Bank, 19- 
 113. 
 
 128. "Where the payee, after indorsement 
 by him, lifts the note by payment to the in- 
 dorsee, he does not acquire title under a new 
 contract, but the note becomes again fully 
 ajid exclusively his property, and he is au- 
 thorized to strike out his indorsement. The 
 indorsee's interest, while it continues, is not 
 of such exclusive character as to deprive the 
 indorser of all interest and title in the note. 
 He still has a conditional title, which be- 
 comes absolute upon payment by him after 
 dishonor, and may then enforce a mechanic's 
 or landlord's lien for the indebtedness" for 
 which the note was given, although, as to the 
 indorsee, the transfer of the note extin- 
 guished such lien: Farwell v. Grier, 38-83; 
 German Bank v. Schloth, 59-316. 
 
 12!t. Upon the note after indorsement com- 
 ing again into the legal possession of the 
 payee, he may erase aU indorsements, and 
 sue in the same manner as though he had 
 never pai-ted with possession : Sater v. Hen- 
 dershott, Mor., 118. 
 
 130. Transfer of distinct shares: The 
 owner may sell distinct shares of a note to 
 different persons, who thus become co- 
 owners, and one of such co-owners may 
 protect his interest by an action and may 
 maintain trover if a co-owner be guilty of 
 conversion : Conover v. Earl, 26-167. 
 
 131. Indorsement may be made for a por- 
 tion of the amount included in the note and 
 the indorser will be liable to that extent, as 
 though the indorsement had been to the en- 
 tire amount of the instrument : Cochran v. 
 Glover, Mor., 151. 
 
 132. If a party becomes entitled to a part 
 interest, he may have a transfer of such 
 
186 
 
 BILLS AND NOTES, III, b, c. 
 
 Time of transfer. — Pleading and evidence. 
 
 part with the security belonging thereto: 
 Vogel V. Wadsworth. 48-28. 
 
 133. Transfer of a note carries with it 
 Fei^iirity : The assignment of a note given for 
 the purchase-price of real property carries 
 with it a vendor's lien and any and all other 
 equities and rights attaching to the debt: 
 Bills V. Mason, 42-329. 
 
 13i. So, if a note be secured by a mort- 
 gage, the indorsement of the note before 
 maturity to a good faith holder transfers the 
 mortgage free from equities between the 
 original parties in the same manner as the 
 note : Updegraft v. Edivards, 45-513. 
 
 135. Transfer in separate instrument: 
 A transfer in a separate instrument, executed 
 for an independent purpose to which the 
 transfer is merely incident, is an assignment 
 and not an indorsement, and the holder 
 thereunder is subject to defenses : Franklin 
 V. Twogood, 18-515. 
 
 136. A land-warrant is a mere chattel not 
 assignable by delivery or blank indorsement, 
 and transfer of the same should be made by 
 a full assignment : Fort v. Wilson, 3-153. 
 
 137. Tlie verbal transfer of a note with 
 notice thereof to the maker imposes upon him 
 an'equitable obligation to make payment to 
 the assignee, and though not sufficient to 
 support implied assumpsit, it is a good con- 
 sideration for an express promise to pay to 
 the assignee : Allison v. Barrett, 16-278. 
 
 138. Where a note was verbally assigned 
 by the payee, who retained possession, and 
 the maker promised to pay it to the assignee, 
 and the note was subsequently sued upon by 
 the creditors of the payee, while in his pos- 
 session, and sold under such levy, held, that 
 the levy only reached the interest of the 
 payee, and the sale did not convey any rights 
 to the purchaser, and that the payment of 
 such purchaser by the maker would not re- 
 lease his obligation to pay to the assignee: 
 Ibid. 
 
 b. Time of transfer. 
 
 130. Presumption: The assignment being 
 without date, the presumption is that it was 
 made on the day the instrument was exe- 
 cuted : Hayward v. Hunger, 14-516. 
 
 140. In an action by the indorser, it is pre- 
 sumed that the note was transferred to him 
 
 for a valuable consideration before maturity : 
 flea V. Owen, 87-262. 
 
 141. Proof that the payee received pay- 
 ments after maturity, on a statement at the 
 time to the maker that the note was in his 
 trunk at another place, held, not sufficient to 
 overcome such presumption : Ihid. 
 
 142. Indorsement being prima facie evi- 
 dence of transfer before maturity, proof of 
 payment to the payee is unavailing in an ac- 
 tion by the indorser, unless the maker can 
 show that the payment was made before the 
 transfer, or that the indorsement was made 
 after maturity : Wilkinson v. Sargent, 9-521. 
 
 143. The presumption as to the time of 
 making the indorsement is that it was made 
 at the date of the making of the note, or at 
 least before its maturity : Fletcher v. Ander- 
 son, 11-328. 
 
 144. Relation back : An indorsement may, 
 as between the parties, relate back to the time 
 of the making of the agreement to indorse : 
 Berryhill v. Jones, 35-335. 
 
 145. Transfer after maturity has the same 
 force and effect as if made before the note 
 fell due, except that the transfer is subject 
 to the equities of the maker : Wyatt v. Bailey, 
 Mor., 396. 
 
 As to what equities such transferee is sub- 
 ject to, see infra, VII. 
 
 c. Pleading and evidence. 
 
 146. Allegation of ownership: Where a 
 note is payable to bearer, an averment in an 
 action thereon that it is the property of and 
 the amount claimed is due to the plaintiff, is 
 equivalent to a direct allegation of title. The 
 method in which it became the property of 
 plaintiff need not be averred: Dahney v. 
 Reed, 12-315. 
 
 147. Pleading title: Where an instrument 
 is not made payable to bearer or transferable 
 by delivery alone, the plaintiff suing thereon 
 not being payee or indorsee does not, by 
 merely averring ownership, without show- 
 ing by what right he claims the same, pre- 
 sent such facts as will enable him to main- 
 tain the action in his own name : Montague v. 
 Reineger, 11-503. 
 
 148. Mere denial of plaintiff's property in 
 the note sued on, if it be payable to bearer, 
 is not sufficient to cast upon him the burden 
 
BILLS AND NOTES, IIL c; IV, a. 
 
 187 
 
 Pleading and evidence. — Maturity. — Days of gi-ace. 
 
 of proving liis right : Brechbill v. Stutymaii, 
 3 G. Gr., 573. 
 
 149. Presumption from possession: If a 
 
 note is payable to bearer, the law presumes 
 that the person in possession thereof is the 
 owner: Alleiisworth v. Moore, 3 G. Gr., 273: 
 Stoddard v. Burton, 41-582. 
 
 150. Possession of a note payable to bearer 
 is prima facie evidence of ownership : Shel- 
 ton V. Sherfey, 3 G. Gr., 108; Creighton v. 
 Gordon, Mor., 41. 
 
 151. Possession of a note is such prima 
 facie evidence of ownership as to entitle the 
 person in possession to recover thei'eon, in 
 the absence cf evidence rebutting such pre- 
 sumption : Ruhey v. Culbertson, 35-264. 
 
 152. And this is so, even though the note 
 is payable to another person, or order, and no 
 assignment is shown: King v. Oottschalk, 
 21-512. 
 
 153. But the presumption of ownership 
 arising from possession may be overcome 
 by direct and positive testimony that the 
 person in possession has no interest in' it or 
 authority to collect it : Hesscr v. Doran, 41- 
 4G8. 
 
 154. AVhile possession of a note is prima 
 facie evidence of ownership as between the 
 holder and the maker, yet, in a contest be- 
 tween the payee and a stranger, the presump- 
 tion is that the payee is the owner as against 
 the stranger having possession: Tuttle v. 
 Becker, 47-486. 
 
 155. If a note is payable to payee or bearer, 
 a subsequent indorsement by the payee, or by 
 a holder not connected by indorsement with 
 the payee, will not render proof of a transfer 
 by indorsement necessary : Breckhill v. Stuty- 
 man, 3 G. Gr., 572. 
 
 156. The holder of a note payable to bearer 
 may rely upon his possession acquired by 
 deUvery although the instrument is indorsed 
 by the payee, and is not bound to rely upon 
 having acquired title by or through the in- 
 dorsement : Lane v. Krekle, 22-399. 
 
 157. The party claiming to be the owner 
 of a note payable to bearer, seeking to re- 
 cover its value from a third person having 
 possession thereof, which is alleged to be 
 wrongful, must prove his title. It is not 
 necessary for defendant in possession to set 
 up and prove title as against plaintiff : Gas- 
 hell V. Patton, 58-163. 
 
 158. Blank indorsement of a note by the 
 payee and its possession by plaintiff are suf- 
 ficient to create a legal presumption of 
 plaintiff's right to recover thereon: Hickok 
 V. Labussier, Mor., 115. 
 
 159. Possession of a note by tlie maker 
 is at least some evidence that he has paid 
 it, the possession being presumed lawful: 
 Dougherty v. Deeney, 41-19. 
 
 Parol eTidence: How far admissible to 
 vary liability of blank indorser or drawer, 
 see infra, §§281-886. 
 
 ly. Matueity. 
 
 a. Days of grace. 
 
 160. Usage recognized : The law merchant 
 having generally been recognized by courts 
 of this country, will be considered as exist- 
 ing until it is shown not to prevail. The 
 courts will take notice of the usage of allow- 
 ing three days of grace, and in the absence 
 of proof to the contrary will presume that 
 such was the understanding of the parties : 
 Hudson V. Matthews, Mor., 94. 
 
 161. Statutory provision: Where ex- 
 emption from liability on a bill of exchange 
 was asserted under a statute of another state 
 which changed the rule of the law merchant 
 as to days of grace, held, that defendants must 
 show themselves within such statute to ob- 
 tain its exemption: Mt. Pleasant Branch, 
 etc.. Bank v. McLeran, 26-306. 
 
 102. Wliere no time of payment is men- 
 tioned: Under a statute allowing days of 
 grace (16 G. A., ch. 81) except in case of 
 paper drawn payable on demand, held, that 
 a draft or bill in which no time for pay- 
 ment is mentioned is payable on demand, 
 and therefore not entitled to gi-ace: First 
 Nat. Bank v. Price, 52-570. 
 
 163. Non-negotiable instruments are not 
 entitled to days of grace : Peddicord v. Whit- 
 tam, 9-471. 
 
 1 6-1. Notes payable In property are not 
 entitled to days of grace, Unless they are 
 negotiable within the provisions of the statute 
 (Code, § 2085) allowing such notes to be made 
 negotiable in terms : McCartney v. Smalley's 
 Adm'rs, 11-85. 
 
 165. Overdue: A note is not overdue until 
 days of grace are passed. Therefore, held, 
 that a transfer on the second day of grace 
 
188 
 
 BILLS ANB NOTES, IV, b. 
 
 When payable. 
 
 was before maturity: Goodpaster v. Voris, 
 8-334. 
 
 166. A note payable in current funds is 
 
 not prima facie negotiable ; but evidence of 
 custom or an understanding among the par- 
 ties that by such term is meant money 
 may be received to impart to it the attri- 
 butes of negotiability. (See supra, §§ 31- 
 33 of this article.) And thereby it vcill be- 
 come subject to days of grace : Haddock v. 
 Woods, 46^33. 
 
 b. WJien payable. 
 
 167. Where no time of payment is men- 
 tioned in a note it is in contemplation of law 
 payable on demand : Oreen v. Drebilbis, 1 G. 
 Gr., 553. 
 
 168. So a draft in which no time of pay- 
 ment is mentioned is payable on demand 
 and not at sight, notwithstanding it provides 
 for interest "after maturity:" First Nat. 
 Bank v. Price, 53-570. 
 
 109. Accommodation paper: The contract 
 between the parties to an accommodation 
 paper is that the one receiving the accommo- 
 dation will negotiate the paper and will 
 place the proceeds to his own use, and will 
 either pay it at its maturity or reimburse the 
 accommodation party in case he is compelled 
 to pay it ; and a cause of action on such a 
 note in favor of the accommodation party 
 ■ accrues only on the failure of the other party 
 to the contract to perform his undertaking : 
 Jefferson County v. Burlington db M. R. JR. 
 Co., 66-385. 
 
 170. Change of time of payment: The 
 fact that one of the makers of a note, in the 
 presence and with the consent of the other 
 makers, indorsed thereon an agreement 
 signed by himself, changing the time of pay- 
 ment to an earlier date, held not to bind 
 such other makers to such agreement so as to 
 cause the statute of limitations to run as to 
 them from such earlier date: Mitchell v. 
 McHenry, 63-^53. 
 
 171. Part payment as evidence of ma- 
 turity: "While the payment of a part of a 
 note may be competent evidence to be con- 
 sidered in determining the time of maturity, 
 no presumption of law arises from the sim- 
 ple fact of payment that the note was then 
 due: Hughes v. Monty, 34-499. 
 
 172. Extension of time; considerntion: 
 
 An extenion of time given after maturity 
 upon payment of interest due is without con- 
 sideration : Van Dusen v. Parley, 40-70. 
 
 173. Renewal; release: "Where an agree- 
 ment as follows was indorsed on the note, 
 "Renewed for an indefinite time at, ten dol- 
 lars interest per month, and the whole amount 
 then to pay when both parties may agree,'' 
 held that it was a stipulation not to sue for 
 a Umited time, and not a release or covenant 
 not to sue at all, and that therefore the note 
 was due and payable at the date of such re- 
 newal, or at least within a reasonable time : 
 Ramot V. Schotenfels, 15-457. 
 
 174. Indorsement on a note of permission 
 to the maker to use the principal after due, 
 by paying the interest annually, does not 
 change the effect of the note so as to release 
 the obligation to pay the principal. In such 
 case, failure to pay interest annually as stipu- 
 lated renders the principal due, and a subse- 
 quent acceptance of interest by the payee 
 will- not be a waiver of the breach of the 
 condition, but simply an acceptance of part 
 payment : Oskaloosa College v. Hiekok, 46- 
 337. 
 
 175. Interest after maturity: Provision 
 in a note for interest at ten per cent, after 
 due does not operate to extend the time of 
 maturity : Watrous v. Mississippi Valley Ins. 
 Co., 35-583. 
 
 176. Demand; interest: Although inter- 
 est on a demand note will commence to run 
 from date of commencement of suit, and not 
 from date of execution, if no demand is 
 proven, yet where it was shown that, within 
 a few days after execution and delivery, the 
 maker paid a portion of the amount due, 
 held, that such act constituted an acknowl- 
 edgment that the note was due at the time 
 and was equivalent to demand, so that inter- 
 est would commence to run from that time : 
 Bayliss v. Pearson, 15-379. 
 
 177. Note payable in property ; demand: 
 "Where the instrument provided for the pay- 
 ment of a certain sum in cabinet furniture 
 at the maker's shop, no date for the payment 
 being specified, held that, under Code, § 3097, 
 action thereon could not be maintained with- 
 out demand being shown : Frederick v. Bern- 
 king, 4G. Gr., 56. 
 
 1 78. If the time of payment of a note 
 
BILLS AND NOTES, V. 
 
 189 
 
 Presentment; demand: notice; protest. 
 
 payable in property is fixed, no demand of 
 the property is necessary to convert it into a 
 money demand. The property should, in 
 such case, be tendered. (See Code, § 3098) : 
 Barker v. Brink, 4 G. Gr., 59. 
 And see infra, §§ 183, 184. 
 
 179. Due before maturity; int3rest: 
 Wliere a note drawn to include interest to 
 the time of maturity becomes due prior to 
 that time upon the happening of a contin- 
 gency, tlie maker may defend against the 
 note to the extent of the unearned interest 
 included therein: Roberts v. Waters, 9-434. 
 
 180. Due for default in interest: Where 
 the mortgage given to secure a note con- 
 tained a stipulation that, if interest should 
 remain unpaid for six months after due, the 
 whole amount of the indebtedness should 
 become due and payable, although the note 
 contained no such stipulation, held, sufficient 
 to authorize the bringing of an action upon 
 the note before the date of maturity thereof, 
 there being such failure to pay interest as 
 was stipulated for in the mortgage : Clayton 
 V. WMtaker, 68-413. 
 
 As to alteration with respect to date, see 
 Alteration of Instruments. 
 
 V. Presentment for acceptance or 
 payment; demand; notice of 
 non-acceptance or non-payment ; 
 
 PROTEST. 
 
 181. Presentment not necessary to charge 
 maker: Even where the place of payment is 
 agreed upon, failure of the holder to demand 
 payment there wUl not stop the running of 
 interest unless the maker had the money at 
 the place of payment: Myers v. Byington, 
 34^305. 
 
 182. Demand of payment is not necessai-y 
 in such cases in order to enable the holder to 
 recover: Games v. Manning, 3 G. Gr., 351. 
 
 183. Notes payable in property: The 
 same rule holds true as to notes payable in 
 property: Ibid. 
 
 184. Even where no place is designated, if 
 the note is payable in property at a particu- 
 lar time, no demand need be shown : Ibid. 
 
 And see supra, %% 177, 178. 
 
 185. Presentment of order for property: 
 There is no fixed inile as to the time of pre- 
 sentment of an order for property in which 
 
 no date is fixed. It is sufBcient if it be pre- 
 sented within a reasonable time, to be de- 
 termined by the circumstances of each par- 
 ticular case. Presentment at any time before 
 commencement of suit would be sufficient to 
 enable the holder to recover against the 
 drawer unless it should appear that the 
 drawer had been injured by the delay : Tryon 
 V. Oxley. 3 G. Gr., 389. 
 
 186. Necessary to chai-ge indorsers: An 
 indorser cannot be charged in the absence of 
 evidence of presentation and demand of pay- 
 ment and of proof of the notice required by 
 law : Bank of Red Oak v. Orvis, 40-333. 
 
 187. The holder of a check payable at a 
 different place than that at which it is ne- 
 gotiated can recover against the indorser only 
 upon using due diligence in forwarding sucli 
 check for presentment. The general rule is 
 that it must be deposited in the mail on the 
 day on which it is received or on the next 
 succeeding day : Northwestern Coal Co. v. 
 Boiimian, 69-150. 
 
 188. So held in case of a check or draft 
 drawn by one banker upon another, purport- 
 ing to be drawn upon funds deposited and 
 payable on demand: Ibid. 
 
 189. While the rule as to time of present- 
 ment may be varied by particular circum- 
 stances of the case, the presentment must be 
 made in every case with all the dispatch and 
 diligence consistent with the transaction of 
 other commercial concerns : Ibid. 
 
 190. Institution of suit against the maker 
 will not render the indorser Kable in the ab- 
 sence of notice to him: Keater v. Hock, 11- 
 536. 
 
 191. The fact that at the time a note 
 comes due action is pending thereon does not 
 release the holder from the necessity of 
 making proper presentment and demand to 
 hold the indorser: Graul v. Strutzel, 53- 
 713. 
 
 192. Notes transferred after matnrity: 
 A note transferred after maturity is, as re- 
 spects the obligations of the parties, equiva- 
 lent to a note payable on demand, and there 
 is the same necessity for presentment and 
 notice as in case of a demand note: Ibid.; 
 Jones V. Middleton, 39-188; McKewer i\ 
 Kirtland, 33-348 ; Prym' v. Bowman, 38-92. 
 
 193. The time within which notice must 
 be given in such cases is the same as in a case 
 
190 
 
 BILLS AND NOTES, V. 
 
 Presentment; demand; notice; protest. 
 
 where a note is indorsed before maturity: 
 McKewer v. Kirtland, 33-348 ; Pryor v. Bow- 
 man, 38-92. 
 
 194. Not necessary to hold indorser of 
 non-negotiable note: The indorsement of a 
 non-negotiable note is equivalent to the mak- 
 ing of a new note and is a direct and positive 
 undertaking on the part of the indorser to 
 pay the note to the indorsee, and such in- 
 dorser is liable without demand and notice : 
 Wilson V. Ralph. 3-450; Long v. Smyser, 
 3-366 ; Hall v. Monohan, 6-216 ; Billingham 
 V. Bryan, 10-317; Huse v. Hamhlin, 29-501. 
 
 195. The holder of such an instrument in- 
 dorsed in blank may fill up the indorsement 
 with an absolute promise to pay, or a w^aiver 
 of demand and notice: Long v. Smyser, 
 3-266. 
 
 196. Necessary to hold drawer: If the 
 drawer has reason to expect the bill to be 
 honored, he is entitled to a regular present- 
 ment and notice of a refusal to pay ; but if, 
 under the circumstances, he has no right to 
 draw upon the payee and expect that his 
 draft will be paid, he cannot complain either 
 of delay or entire failure iu presenting and 
 giving notice of non-acceptance or non-pay- 
 ment : Kimball v. Bryan, 56-632. 
 
 197. County orders or warrants: Pre- 
 sentment of a county order or warrant 
 drawn by the proper oiBcers upon a county 
 treasurer and notice of such presentment are 
 not necessary in order to sustain an action 
 against the county. The order is to be con- 
 sidered as in effect drawn by a party upon 
 himself: Steel v. Davis County, 2 G. Gr., 
 469. 
 
 198. Not necessary to hold guarantor: 
 A guarantor cannot escape liability on ac- 
 count of failure to give him notice unless no- 
 tice has been so long delayed as to raise a 
 presumption of payment or waiver, or unless 
 he can show that by the delay he has lost 
 opportunities for reimbursement or indem- 
 nity which the notice, or an earlier notice, 
 would' have secured him: Second Nat. 
 Bank v. Gaylord, 34-246. 
 
 See, also. Guaranty, II, b. 
 
 199. Liability of agent for negligence in 
 making demand or giying notice: Failure 
 of the broker, to whom a bill of exchange is 
 sent for collection, to present the same for 
 acceptance and payment at maturity at the 
 
 place at which it is made payable, will ren- 
 der him liable for the amount thereof if it 
 appears that the drawee had funds deposited 
 for payment, though they were subsequently 
 withdrawn and the drawee became insolv- 
 ent. An allegation of insolvency of the 
 drawee at the maturity of the bill would n< t 
 in such case be necessary: Langhlin v. 
 Greene, 14-92. 
 
 -00. Where a note was left with a bank 
 for protest, and notice was sei-ved upon a 
 person of the same name as the indorser liv- 
 ing in the vicinity, but the real indorser liv- 
 ing in an adjoining county was not notified, 
 held, that the bank was not liable for negli- 
 gence, no directions as to the place to which 
 notice should be sent having been given by 
 the owner of the note : Mount v. First Nat. 
 Bank, 37-457. 
 
 201. Evidence of a custom among bankers 
 to make presentment on certificates of de- 
 posit on the day they fall due instead of on 
 a day of grace may be received to rebut neg- 
 ligence in presenting on that day, although 
 the indorser is thereby discharged : Haddock 
 V. Citizens' Nat. Bank, 53-542. 
 
 202. Where the act of an agent in improp- 
 erly presenting for acceptance instead of for 
 payment, whereby the indorser was released, 
 was ratified by the holder by ordering a pro- 
 test and paj'ing the expenses thereof, held, 
 that he could not recover fl'om the agent for 
 negligence in making presentment: First 
 Nat. Bank v. Price, 52-570. 
 
 203. Protest ; when necessary : Protest is 
 not necessary on notes and inland bills of ex- 
 change in order to charge the indorser. It 
 is sufficient that they should be presented for 
 payment and notice of non-payment duly 
 given: Smith v. Ralston, Mor., 87. 
 
 204. Certificate of protest as evidence: 
 Protest of a promissory note is not necessar}', 
 even where the indorser resides in one state 
 and the indorsee in another, and the certifi- 
 cate of protest is not in such cases of itself 
 evidence of the fact of demand, as it would 
 be in the case of a foreign bill of exchange ; yet 
 it may be admitted as part of the testimony 
 of the oflicer making demand, and will be 
 entitled to the same credit as any memo- 
 randum of a witness made on the occurrence 
 of an event, and form a part of the res gestce: 
 Bernard v. Barry, 1 G. Gr., 388. 
 
BILLS AND NOTES, V. 
 
 191 
 
 Presentment; demand; notice; protest. 
 
 205. Lex loci : The law of the place of con- 
 tract must govern the liability of an indorser 
 and notice of dishonor must be given accord- 
 ingly: Huse V. Hkmblin, 39-501: Thorp v. 
 Craig, 10-461 : Chatham Bank v. Allison, 15- 
 357. 
 
 206. Protest and notice should be accord- 
 ing to the law of the place of payment : Allen 
 V. Harrah, 30-363. 
 
 Further as to lex loci, see svpra, g§ 47-53. 
 
 207. Written notice to the malcer will 
 not take the place of a presentment for 
 payment, nor hold the indoi'ser: Oraul v. 
 Strutzel, 58-713; Hartford Bank v. Green, 
 11-476. 
 
 20S. Place of presentment: There must 
 be presentment to the maker pei-sonally at 
 his place of residence or business : Oraul v. 
 Strutzel, 53-713. 
 
 209. Although the presumption is that the 
 maker resides where the note is dated, and 
 that he contemplated payment at that place, 
 yet this is a presumption only, and if he 
 resides elsewhere in the state when the note 
 falls due, and that fact is known to the 
 holder, demand must be made at the place 
 of the maker's residence; and allegation of 
 diligence in making presentment at the place 
 where the instrument bears date is not suf- 
 ficient to show due diligence : Hartford Bank 
 V. Orken, 11-476. 
 
 210. Demand made at the house of the 
 maker who has no place of business is suffi- 
 cient though he is not at home at the time: 
 Bank of Red Oak v. Orvis, 43-691. 
 
 211. Where maker has removed from the 
 state : The holder is not required to follow 
 the maker who has removed from the state 
 subsequent to the execution of the note, and 
 make demand upon him in another state; 
 nor will failure to make demand at the last 
 place of residence or of business of such maker 
 within the state release the indorser, if it 
 appears that the maker left behind no one to 
 represent or answer for him in any capacity : 
 Whitely v. Allen, 56-234. 
 
 212. Payable at particular place : When 
 a bill is made and accepted payable at a par- 
 ticular place, the officer making protest 
 should go the place specified and present the 
 bUl for payment to the person having charge 
 of the office at that place and demand pay- 
 ment of him. If the place of payment is 
 
 shut up during the hours of business upon 
 the day of maturity, the holder may treat 
 the bill as dishonored by refusal of payment, 
 but the fact that it is so closed must be stated 
 in the protest : Oage v. Dubuque & P. R. 
 Co., 11-310. 
 
 213. Where the indorser of a note payable 
 at a banking house, in writing waived notice 
 of protest, and before the maturity of the 
 note all the books and papers of the bank 
 were removed to another banking house in 
 the same city, of which fact the public and 
 the maker had notice, and it did not appear 
 that the banking house where the note was 
 made payable was still open, or that said 
 bankers continued their business unless at 
 the place to which their books had been trans- 
 ferred, held, not error to find that the pre- 
 sentment at the place to which the books 
 and papers were removed was sufficient : Gel- 
 peoke V. Lovell, 18-17. 
 
 214. It is not necessary that a certificate 
 of protest of a note made payable at a par- 
 ticular place shall show that demand was 
 made at that place. A general statement of 
 demand made will be sufficient : Fuller v. 
 Dingman, 41-506. 
 
 215. Peiiiand on corporation: The note 
 of a corporation may be presented for pay- 
 ment at its usual place of business although 
 such place of business is not the place where 
 by its charter it is required to keep its office : 
 Merrick v. Burlington, etc., Plank Road Co., 
 11-74. *■ 
 
 216. Presentment to joint maimers: Pre- 
 sentment must be made to all the makers of 
 the note : Oraul v. Strutzel, 53-713. 
 
 217. Pres'entment to one of two joint 
 makers will not be sufficient to hold the in- 
 dorser, in the absence of a showing of some 
 excuse for failure to make presentment to 
 the other maker : Blake v. McMillen, 33-358 ; 
 Bank of Red Oak v. Orvin, 40-333. 
 
 218. But this question was left an open 
 one, after some consideration, in Allen v. 
 Harrah, 30-363. 
 
 219. Where one of the joint makers dies 
 before maturity, presentment must be made 
 to his legal representatives if possible : Blake 
 V. McMillen, 33-150. 
 
 220. Presentment of a partnership bill 
 to one of the partners is sufficient : Mt. Pleas- 
 ant Branch, etc.. Bank v. MoLeran, 36-306. 
 
192 
 
 BILLS AND NOTES, V. 
 
 Presentment; demand; notice; protest. 
 
 221. At maturity: Demand and notice on 
 the day after the last day of grace are not 
 sufficient to hold the indorser: Barker v. 
 Webster, 10-593. 
 
 222. If a note payable in current funds is 
 shown to have been, by usage and under- 
 standing of the parties, payable in money 
 and therefore negotiable, presentment on the 
 last day without days of grace would not 
 hold the indorser: Haddock v. Woods, 46- 
 433. 
 
 223. But evidence is admissible to prove a 
 custom among banks that certificates of 
 deposit shall be presented on the day they 
 fall due and not on a day of grace, for the 
 purpose of showing that in making such 
 presentment the bank acted with reasonable 
 prudence, and is not liable to thei^older for 
 presenting on that day although the indorser 
 was thereby discharged : Haddock v. Citizens' 
 Nat. Bank, 53-542. 
 
 224. Presentment for payment before the 
 last day of grace is premature. Decided under 
 provisions of Code of '51, differing from those 
 of the present Code, § 2093 : Edgar v. Oreer, 
 &-394. 
 
 225. Parol authority will be sufficient to 
 authorize an agent to make demand of pay- 
 ment for the holder. Such authority may 
 be created by merely handing over the bill 
 with instructions to demand payment: Mt. 
 Pleasant Branch, etc.. Bank v. McLeran, 
 26-306. 
 
 226. The drawee may act as agetit in pro- 
 curing presentment and protest in order to 
 secure a holder's rights as against parties to 
 the paper ; and the fact that the certificate of 
 protest shows that presentment was made at 
 the request of the drawee does not preclude 
 proof that in making such request the 
 drawee acted merely as agent of the holder: 
 lUd. 
 
 227. It appearing that protest was made 
 at the request of a bank, it will be presumed 
 that the bank had the right to authorize pro- 
 test in the absence of proof to the contrary : 
 Bank of Red Oak v. Orvis, 42-691. 
 
 228. Assuming that a bank holding paper 
 payable at its counter is bound to make pre- 
 sentment, a presentment by the cashier for 
 the bank to the paying teller after business 
 hours is sufficient : First Nat. Bank v. Owen, 
 23-185. 
 
 229. Yerbal notice to the indorser of de- 
 mand and non-payment is sufficient: Mer- 
 rittv. Woodbury, '\.4r-299; First Nat. Bank v. 
 Ryerson, 23-508. 
 
 230. Notice by mail: Where notices of 
 protest were sent by the notary public by 
 mail to one indorser, who deposited them 
 properly directed to other indorsers in the 
 postoffice of the town where they resided, 
 held, that this was sufficient : Van Brunt v. 
 Vaughn, 47-145. 
 
 231. Transmission of notices of protest 
 through a party who re-deposits them in the 
 postoffices of the persons to' whom they are 
 addressed is not improper : Ibid. 
 
 232. Where notice of dishonor was sent to 
 a postoffice which was once the address of 
 the drawer, but had been discontinued, the 
 mail for such office being sent to another 
 office about as near the drawer, and which in 
 the particular case was the drawer's proper 
 postoffice, held, that the notice was suffi- 
 cient : First Nat. Bank v. Owen, 23-185. 
 
 283. The notice to an indorser is as essen- 
 tial to his liability as are due presentment 
 and demand of payment; and where it 
 appeared that notice to an indorser was 
 directed to him at a place other than his 
 postoffice, held, that he was thereby dis- 
 charged : Northwestern Coal Co. v. Bowman, 
 69-150. 
 
 234. Notice to parties in same town: If 
 the parties live in the same town, notice 
 should not be sent by mail but should be 
 given either at the place of business or resi- 
 dence of the party to be notified ; but if put 
 into the postoffice and in fact received by 
 the party to be notified on the day he is en- , 
 titled to notice, such a notice will be suffi- 
 cient : Cfrinman v. Walker, 9-^6. 
 
 235. But an agreement between parties 
 that notice through the mails should be 
 deemed sufficient may be shown by proving 
 usage to that effect known to the party to 
 whom notice is to be given : Ibid. 
 
 236. There is now, however, a statutory 
 provision (Code, § 2095) authorizing notice 
 to the party to be charged, if in the same 
 town or township, to be made by depositing 
 the notice in the nearest postoffice to such 
 party on the day cf demand ; but such pro- 
 vision does not essentially differ from the 
 rule established under the law merchant on 
 
BILLS AND NOTES, V. 
 
 193 
 
 Presentment; demand; notice; protest. 
 
 this subject except to add one other method 
 of giving notice when the party to be affected 
 resides in the same place where the note is 
 payable and the demand is made, namely, 
 that of leaving the notice in the post office 
 nearest to such pai-ty : Fahnestock v. Smith, 
 14-561. 
 
 237. Where a notary, after making de- 
 mand, instead of notifying an indorser resid- 
 ing in the same place, either personally or by 
 notice deposited in the postoffice there, 
 returned to a neighboring town and from 
 there mailed a notice to the indorser, held, 
 that the notice was not sufficient' under this 
 section: Ihid. 
 
 238. A certificate of protest stating that 
 the notary notified the indorsers is sufficient 
 although it does not show that the residences 
 of the several parties are at the places to 
 which the notices were addressed : Fuller v. 
 Dingman, 41-506. 
 
 239. Under the statutory provision mak- 
 ing the certificate evidence as to what it 
 recites as to the dishonor and notice, the cer- 
 tificate of the officer that he notified a party 
 in a particular manner raises the presump- 
 tion that the mode adopted accomplished the 
 result referred to; but if the certificate states 
 only the steps taken and the mode adopted, 
 and not the fact that notice was given, then 
 unless it further appears that such method 
 would effect notice, the -certificate does not 
 make out a prima facie case nt notice: 
 Wamsley v. Rivers, 34-463. 
 
 240. It is not necessary to annex to, or set 
 out in, the notary's certificate, the notice re- 
 ferred to therein ; nor need the certificate, in 
 words, formally refer to the seal : Jones v. 
 Berryhill, 25-289. 
 
 241. When in the same town: Where the 
 parties reside in the same town, notice to the 
 indorser must be given within a reasonable 
 time, which means, at farthest, the next day 
 after default: McKewer v. Kirtland, 83-348: 
 Graul V. Strutzel, 53-712. 
 
 242. Successive indorsers: The holder of 
 a note which has passed through the hands 
 and received the indorsements of several par- 
 ties may elect to hold either one or all of 
 them. If he elects to hold all, he must give 
 all notice ; if to hold but one, notice to that 
 one only is necessary. If an indorser thus 
 notified desires to hold prior indorsers, he 
 
 Vol. 1-13 ' ' 
 
 must give them notice; but where an in- 
 dorser receives notice either from the holder 
 or any other subsequent indorser, it inures to 
 the benefit of all : Hamilton v. Veaeh, 19-419. 
 
 243. A judgment in favor of the last in- 
 dorsee against the maker and indorsers of the 
 note raises the presumption that .all parties 
 who are entitled to notice received the same; 
 and in an action by an indorsee against his 
 immediate indorser to recover money paid on 
 such judgment, he need not allege the fact of 
 notice: Ibid. 
 
 244. Waiver ; absence of detriment im- 
 material: A party relying upon waiver of 
 protest and notice need not aver that the de- 
 fendant sustained no detriment by reason of 
 such want of notice: Star Wagon Co. v. 
 Stcezy, 63-520. 
 
 24.5. Must be pleaded: Waiver of demand 
 and notice must be pleaded as such, and can- 
 not be proved under an allegation that 
 demand was made and notice given: Inim- 
 bert V. Palmer, 29-104: Peck v. Schick, 50- 
 281. 
 
 246. Waiver of notice does not waive de- 
 mand: An agreement to waive notice will 
 not extend beyond the plain import of the 
 terms, and will not constitute an excuse for 
 want of presentment for payment: Voorhies 
 V. Atlee, 29-49; Whitely v. Allen, 56-224. 
 
 247. New promise: A promise to pay made 
 by the indorser after knowledge of want of 
 due demand and notice waives the want of 
 such demand and notice, and renders the 
 indorser liable: Allen v. Hurrah, 30-363; 
 Lomax ii Smyth, 50-223. 
 
 24S. But it is necessary that such new 
 promise be unqualified : Campbell v. Vamey, 
 12-43. 
 
 249. To constitute a waiver the agreement 
 after maturity to pay must be clearly estab- 
 lished and deliberately made after a full 
 knowledge of the facts, which knowledge 
 will not be inferred, but must be alleged and 
 proved : Freeman v. O'Brien, 38-406. 
 
 250. The bnrden of proof is upon the per- 
 son seeking to show the indorsers liability 
 notwithstanding want of notice, to show that 
 he not only waived such notice and promised 
 to pay, but also to show that such new prom- 
 ise was made with the full knowledge of the 
 fact that .he was released from his legal obli- 
 gation to pay: Ballin v. Betcke, 11-204. 
 
194 
 
 BILLS AND NOTES, V, VI, a. 
 
 Presentment; demand: notices protest. — Liability of the parties. 
 
 251. Ignorance of legal rights } coiisid' 
 eration : IJirect aclsnowledgment of liability 
 by the indorser with promise to pay and an 
 arrangement for delay of suit are sufficient 
 to operate as a waiver of all advantages from 
 the laches of the holder in making demand 
 or giving notice, if made with a knowledge 
 of such laches, although the indorser may 
 have been ignorant of his Iggal rights and 
 there was no consideration ; Creshire i'. Tay 
 lor, 39-492. 
 
 252. To establish such knowledge on tJie 
 part of the indorser as to make a new prom- 
 ise to pay, after failure of demand and 
 notice, binding upon him, it is not necessary 
 to show that he knew, as a matter of law, 
 that he was discharged, nor that he had a 
 clear, distinct, and full knowledge of all that 
 had been done or omitted with reference to 
 such demand and notice. Knowledge may 
 be inferred from a variety of circumstances 
 without requiring clear and affirmative 
 proof ; and the inquiry is not whether the in- 
 ilorser knew that demand and notice were 
 necessary in order to bind him, but whether 
 he had knowledge of all the facts which in 
 law operate to discharge him. He is pre- 
 sumed to know the law if he knows the facts : 
 Hughes v. Bowen, 15-446. 
 
 253. New promise not a contract but 
 waiTer: The indorser in such a case is not 
 held by his promise as a matter of contract 
 but upon the ground that the promise 
 amounts to a waiver of the objection that 
 proper steps have not been taken to dis- 
 
 , charge him. The question of want of con- 
 . «sideration for the promise does not therefore 
 
 .arise: IMd. 
 
 254:. Renewal as waiver: Where the iu- 
 . idorsgr was verbally notified by the maker on 
 , ithe last day of grace that the note was not 
 
 paid, sand thereupon requested a renewal, 
 
 NwJbieh'.was consented to by the payee, held, 
 ..(that auoh request and acceptance operated 
 .as a ivaiver of notice, which could not be 
 
 avoided,, by a subsequent refusal of the in- 
 
 .dorser.to execute the renewal note: First 
 
 NatSaithv. Eyerson, 3a-508. 
 255. Waiver by reason of possession of 
 
 indorser; "Where the indorser has the note 
 . or bill in his possession at the time of ma- 
 , turity, he will be considered as waiving de- 
 .)nand,,,and notice :.Z/Omaa; v. Smyth, 50-233. 
 
 256. A mere promise to pay tbe note at 
 
 maturity will not of itself constitute .i 
 waiver by the indorser of demand and no- 
 tice: Isham V. McClure, 58-515, 
 
 267. An agreement or assurance on the 
 part of the indorser that he will stand goo<l 
 for the payment of the note if made prior to 
 maturity is not to be deemed a waiver of 
 demand and notice : Freeman v. O'Brien, 38- 
 406. 
 
 258. Acts of the indorser prior to the 
 final maturity of the note, by way of assist- 
 ing the holder in obtaining payment from 
 the maker, held not sufficient to constitute a 
 waiver of demand and notice, for the reason 
 that such acts might well have been done 
 with a view of preventing contingent liabil- 
 ity : Isham v. McClure, 58-515. 
 
 259. Request not to sue : Verbal request 
 by the indorser that the holder will not sue 
 the maker until requested will not constitute 
 a waiver of demand and notice : Free-man v. 
 O'BHen. 38-406. 
 
 260. Certain statements of the drawer of 
 a draft, held not sufficient to show that de- 
 mand and notice had been waived: First 
 Nat. Bank v. Day, 53-680. 
 
 261. Evidence: An admission by an in- 
 dorser of his liability, and a promise to pay. 
 would be comiDetent evidence to show either 
 the fact of notice or a waiver; therefore, 
 lield, that a denial by a partner of liability o( 
 the firm was competent evidence : First Nat. 
 Bank it. Carpenter, 34-433. 
 
 VI. Liability of the paeties. 
 
 a. Maker. 
 
 262. Accommodation paper; misappro- 
 priation: The holder of -accommodation 
 paper which is without restriction as to the 
 mode of using it may transfer it either in 
 payment or as collateral security for an ante- 
 cedent debt, and the maker will have no de- 
 fense : Washington Bank v. Krum, 15-53. 
 
 263. Where such paper is given for a par- 
 ticular purpose, and this is known to the 
 indorsee, a misappropriation of the paper 
 will I'elease the party giving it from all re- 
 sponsibility ; but if the indorsee does not 
 know of the particular purpose for which the 
 paper is given, he may recover thereon, 
 
BILLS AND NOTES, VI, a, b. 
 
 lO.n 
 
 Liability. — Maker. — Indorser. 
 
 although it is used for an unauthorized pur- 
 pose: Ibid. 
 
 264. The fact that such paper has been 
 once discounted and afterwards taken up by 
 the party accommodated does not render it 
 void in his hands, but it may be again used 
 and will be good in the hands of one who 
 takes it for a proper purpose, with knowledge 
 that it is accommodation paper and has been 
 thus once used, but without knowledge of 
 any agreement between the original parties 
 as to the purpose for which it was to be used : 
 Ibid. 
 
 265. Accommodation paper dofliiod: An 
 accommodation bill or note is one to which 
 •the accommodating party has put his name 
 without consideration for the purpose of 
 accommodating another paity who is to use 
 it and is expected to pay it : Jefferson County 
 V. Burlington & M. R. R. Co. , 66-385. 
 
 266. Where, at a time when it was con- 
 sidered legal to do so, a county voted to issue 
 bonds in aid of a railway for the purchase of 
 stock, but after the issue of a portion thereof 
 it was held that it had no such authority and 
 the balance was not issued, nor any stock 
 given to the county, but it was compelled to 
 pay the bonds issued because in the hands of 
 innocent holders, held, that such bonds were 
 not accommodation paper, and that the 
 county could not recover of the railway the 
 amount paid by it : Ibid. 
 
 267. Joint and several obligation ; .satis- 
 faction; judgment: Under a joint and sev- 
 eral note both parties are separately liable, 
 and an unsatisfied judgment against one will 
 not bar an action against the other : Harlan 
 V. Berry, 4 G. Gr., 213. 
 
 268. Signing after maturity: The fact 
 that a party to a note signs it after maturity 
 does not make his liability collateral, but he 
 may be joined as defendant with the other 
 maker: Jones v. Wilson, 11-160. 
 
 269. Joint principals: One who takes a 
 note signed by several may hold them all as 
 principals in the absence of any knowledge 
 that some of them were sureties as between 
 themselves : Murray v. Graham, 29-520. 
 
 270. Discharge of Indorser does not af- 
 fect maker's liability: Although the maker 
 and indorser are jointly and severally bound, 
 the release of the indorser does not operate 
 to discharge the maker. Perhaps the release 
 
 of the maker will discharge the indorser for 
 the reason that it would be equivalent to 
 payment: Foster v. Russ, 14-61. 
 
 271. Taking security from or giving time 
 to the indorser does not discharge the maker : 
 IMiiting v. Western Stage Co., 30-554. 
 
 b. Indorser. 
 
 272. (Juaranty of genuineness of the in- 
 strument: The indorser guaranties the gen- 
 uineness of the instrument, although not 
 negotiable: McCormaek v. Reece, 3 G. Gr.. 
 591. 
 
 273. Indorsement of note by member of 
 firm individually wiU not bind the firm as a 
 warranty of the genuineness of its signature 
 to the note : Miller v. House, 67-737. 
 
 274. The indorsement of a non-negoti- 
 able note is equivalent to the making of a 
 new note, and is a direct and positive under- 
 taking on the part of the indorser to pay the 
 note to the indorsee, and not a conditional 
 one to pay, if the maker does not upon de- 
 mand after due notice: Long v. Smyser, 3- 
 266 ; Wilson v. Ralph, 3-450 : Billingham v. 
 Bryan, 10-317 ; Hall v. Monohan, 6-216 ; Huse 
 V. Hamblin, 29-501. 
 
 275. A blank indorsement creates the 
 same liability from the indorser to the in- 
 dorsee as if it were full: Bean v. Briggs, 
 1-488. 
 
 276. But it does not make the indorser 
 liable as guarantor : Twogood v. Coopers, 9- 
 415. 
 
 277. Filling up blank indorsement: The 
 holder of a note indorsed in blank may fill 
 up the blank indorsement to himself and 
 thus i-ecover as indorsee thereunder : Leland 
 V. Parriott, 35-454. 
 
 278. When the holder has thus filled up 
 the blank indorsement, it becomes a contract 
 duly signed by the indorser, upon which he 
 is answerable to the holder: Bernard v. 
 Barry, 1 G. Gr., 388. 
 
 2 79. The holder of a non-negotiable note 
 indorsed in blank may fill up the indorse- 
 ment with an absolute promise to pay the 
 note to the indorsee, or a waiver of demand 
 and notice : Long v. Smyser, 3-266. 
 
 280. The indorser of a note by blank in- 
 dorsement cannot be bound by a contract of 
 guaranty written over his indorsement: Bel- 
 den I'. Hann, 61-42. 
 
198 
 
 BILLS AND NOTES, VI, b. 
 
 Liability. — Indorser. 
 
 281. Parol evidence to yary indorser's 
 liability: As between the parties parol evi- 
 dence is receivable to show the agreement 
 pursuant to which a blank indoi'sement was 
 made, for the purpose of determining the ex- 
 tent of the indorser's liability thereunder: 
 Harrison v. McKim, 18-485 James v. Smith, 
 30-55. 
 
 282. But as against a subsequent bona fide 
 holder parol evidence is not admissiWe to 
 show that the prior blank indorsement was 
 anade under an agreement by which the 
 blank indorser was relieved from liability : 
 Skinner v. Church, 36-91. 
 
 283. The fact that such holder declares 
 upon the blank indorsement as made to him- 
 self wiU not estop him from denying notice 
 of the agreement under which it was made 
 and recovering as a holder by delivery : Ibid. 
 
 284. It is not permissible to show by such 
 evidence that no contract of any description 
 was entered into or intended by a blank 
 indorsement. The indorsement being in 
 writing clearly imports some kind of con- 
 tract, and in the absence of any other show- 
 ing it must be the contract conclusively 
 implied by law, and oral evidence is not ad- 
 missible to obliterate such contract : Geneser 
 V. Wissner, 69-119. 
 
 285. Parol evidence is not admissible to 
 show that an indorsement in full was made 
 under an agreement that the indorser should 
 not be liable: Sands v. Wood, 1-263; Sher- 
 man V. Elder, 12-433; Harrison v. McKim, 
 18-485. 
 
 286. Drawer: Parol evidence is not ad- 
 missible to vary the liability of the drawer of 
 a bill or check: American Emigrant Co. v. 
 Clark, 47-671. 
 
 287. By bliinlt indorseinent of a person 
 not a party to the instrument as payee, in- 
 dorsee or ai=signee, written on the back of a 
 negotiable instrument, he is presumed to ren- 
 der himself liable as a commercial indorser. 
 In case of a non-negotiable instrument such 
 indorsement imports no liability whatever. 
 In either case, liowever, such indorser is to 
 be held only to such liability as is actually 
 agreed upon, and the blank indorsement may 
 be filled up accordingly : Fear v. Dimlap, 1 
 G. Gr., 33L 
 
 By statute (Code, § 2089) an indorsement 
 in blank by a person not a party renders such 
 
 indorser liable as guarantor : See Guaeanty, 
 §3 4-7. 
 
 What constitutes blank indorsemeat, see 
 supra, § 109. 
 
 288. Successive blank indorsements may, 
 by parol, be shown to have been made si- 
 multaneously for the accommodation of the 
 maker so as to render such indorsers co-sure- 
 ties, between whom the right of contribution 
 may arise : Preston v. Gould, 64r-44. 
 
 289. Terms of as^icriimtint of mortgage: 
 The liability of an indorser cannot be varied 
 by proof of the terms of the assignment of a 
 mortgage given to secure the note : Bank of 
 Red Oak v. Orvis, 43-691. 
 
 290. Without authority: Where a person 
 without authority undertakes to transfer a 
 note by indorsing it in the name of the 
 owner, neither the one whose name is wrong- 
 fully used nor the person actually making the 
 indorsement will become liable to the trans- 
 feree upon the note: Thorpe v. Dickey, 51- 
 676. 
 
 291. So if the note is transferable without 
 indorsement, and an agent, authorized to 
 make a transfer in that manner only, should 
 indorse the name of his principal without 
 authority, the principal would not be bound, 
 and the agent would not be liable in an action 
 upon the note, because the indorsement 
 would not make him a party to it: Ibid. 
 
 And further as to unauthorized indorse- 
 ments, see supra, g 112. 
 
 292. Witliout recourse: No privity exists 
 between indorsees of a note, unless by the con- 
 tract of indorsement, and an action ex corir 
 tractu cannot be maintained upon an indorse- 
 ment without recourse, for such indorsement 
 on its face rebuts any personal liability on 
 the part of the indorser : Watson v. Chesire, 
 18-202. 
 
 293. One who transfers negotiable paper 
 by indorsement without recourse ceases to be 
 a party thereto, and his only liability is upon 
 the facts of the transaction to be assertecf in 
 an action for the original consideration or its 
 value or for fraud practiced. Unless other- 
 wise agreed, he warrants that the paper is 
 genuine, that the parties thereto are sui juris, 
 and that the instrument has not been paid : 
 Ibid. 
 
 294. The obligations of one who indorses 
 without recourse are the same as those of one 
 
BILLS AND NOTES, VI, c. 
 
 197 
 
 Liability. — Without indorsement. 
 
 who transfers by delivery (see infra, §§ 301- 
 308): Miller v. Dugan, 36-433; Dayton v. Til- 
 lotson, 3^404. 
 
 295. An assignment in writing on Ihe 
 note by the payee constitutes an indorsement 
 and renders him liable as indorsee : Sears v. 
 Lantz, 47-658. 
 
 298. The release of au indorser by exten- 
 sion of time to the maker on one note will 
 not affect his liability on another note secured 
 by the same mortgage: Hopkins v. Gray, 51- 
 340. 
 
 297. Negligence in enforcing collection 
 against maker: Under the provisions of E. 
 S. (of 1843), ch. 106, g 3, by which the indorser 
 of a note was liable only in case of failure of 
 holder, after using due diligence, to collect 
 from the maker, held, that a parol agreement 
 between the holder and the indorser, by which 
 the enforcement of the note against the 
 maker was to be delayed after maturity, 
 might be shown to excuse such delay : Friend 
 V. Beebe, 3 G. Gr., 379. 
 
 298. The joining in a new note as joint 
 maker with the maker and the indorsee of 
 the original note will render the indorser 
 liable on the new note as principal, while the 
 indorsee of the old note joining in the new 
 one will be liable only as surety; but any 
 agreement between the parties as to their re- 
 spective liabilities may be shown: White v. 
 Van Horn, 19-189. 
 
 299. Accommodation Indorsement: 
 Where a note is executed payable to the 
 order of the maker, and indorsed by the 
 accommodation party at the time of execu- 
 tion, such indorsee becomes liable to any one 
 obtaining the note in due course of trade, the 
 consideration for the indorsement being im- 
 plied by the writing, or arising from the 
 consideration of the original debt, no new 
 consideration being necessary: Brenner v. 
 Gundershiemer, 14-83. 
 
 300. Consideration presumed: The in- 
 dorsement imports a consideration in the 
 absence of testimony showing a want thereof : 
 Veach v. Thompson, 15-380. 
 
 c. One who transfers without indorse- 
 ment. 
 
 301. Implied warranties: Upon the trans- 
 fer of a negotiable note, there is an implied 
 
 warranty on the part of the transferrer, that 
 the signature of the maker is genuine, and 
 also that there is no defect in the instrument 
 by reason of a material alteration : Snyder v. 
 Reno, 88-339. 
 
 302. One who assigns or transfers an in- 
 strument without becoming liable thereon as 
 indorser is still bound by an implied warranty 
 that the paper transfeiTad is genuine ; that it 
 is of the kind and description which it pur- 
 ports to be ; that the assignor has done noth- 
 ing and will do nothing to prevent the as- 
 signee from collecting the claim assigned, 
 and that the parties to the instrument are 
 sui juris and capable of contracting, and that 
 it has not been paid : Miller v. Dugan, 36- 
 433. 
 
 30.J. The obligations of a transferrer of ■ 
 paper without recourse are substantially the 
 same as those of a transferrer of paper pay- 
 able to bearer by delivery : Ibid. 
 
 304-. Where an assignor by mere delivery 
 or by indorsement without recourse of a ne- 
 gotiable note transfers it knowing it to be of 
 no value, and the assignee receives it in good 
 faith without knowledge of the fact, paying 
 a valuable consideration for it, the assignee 
 may recover from the asssignor the consider- 
 ation paid, or its value : Dayton v. TUlotson, 
 39^04. 
 
 305. Rescission of sale not necessary: 
 Where negotiable notes are transferred and 
 afterwards found to be forgeries, it is not 
 necessary, in order to entitle the transferee to 
 recover from the transferrer on breach of im- 
 plied warranty of genuineness, that the notes 
 should have been returned to the transferrer : 
 Snyder v. Reno, 33-329. 
 
 308. Kepresentations; discount : The fact 
 that more than the ordinary discount is de- 
 ducted, upon the transfer of negotiable paper, 
 would tend to indicate that it was taken by 
 the transferee at his own risk, and not on the 
 faith of representations as to its character by 
 the person transferring: Johnson v. Barney, 
 1-531. 
 
 307. Expense of litigation; burden of 
 proof: To enable the transferee of a negotia- 
 ble instrument to recover from the transferrer 
 costs of litigation, in which the former is de- 
 feated by reason of the instrument not being- 
 genuine, it must appear that such litigation 
 was reasonably necessary and conducted in 
 
198 
 
 BILLS AND NOTEi!, VI, d, e. 
 
 Liability. — Acceptor. — Drawer. 
 
 good faith. If notice of the litigation is 
 given to the transferrer, the burden of proof 
 is upon him to show that the expense was 
 needlessly incurred, but in the absence of 
 such notice the transferee must prove the 
 propriety of the litigation : Snyder v. Reno, 
 38-339. 
 
 308. The record in the suit by the trans- 
 feree upon the instrument is admissible in 
 evidence as a basis for the recovery of the 
 costs incurred, but such record is not admis- 
 sible against the transferrer, to establish the 
 fact of the defect in the instrument, if the 
 transferrer had no notice of the suit: Ibid. 
 
 d. Aeaeptor. 
 
 ■ 309. What constitutes acceptance: While 
 the rule is that if a drawee does anything 
 with or to the bill, or writes thereon any- 
 thing which does not clearly negative his in- 
 tention to accept, then he becomes charge- 
 able as an acceptor, yet where the drawes 
 wrote upon the bill, " Kiss my foot,'" and 
 signed his name thereto, field, that such lan- 
 guage clearly negatived the intention to ac- 
 cept the bill and he did not become liable : 
 Norton v. Knapp, 64^112. 
 
 310. Acceptance implied : An acceptance 
 may be implied from the acts or the conduct 
 of the drawee, although no express accept- 
 ance can be shown : Smith v. Clark, 12-32. 
 
 311. Verbal acceptance; statute of 
 frauds: An acceptor by verbal acceptance 
 does not become a party to the paper in such 
 sense as he does by a written acceptance. If 
 he has funds in his hands for the payment of 
 the demand, or there are other circumstances 
 such as will render the payment of the accept- 
 ance a payment of his own debt, he will be 
 bound. Otherwise his verbal acceptance will 
 be vsdthin the statute of frauds : Walton v. 
 Mandeville, 56-597. 
 
 312. An acceptance payable in instal- 
 ments, while it may have the effect of dis- 
 charging the drawers and prior indorsers, 
 will be binding as to the acceptor and subse- 
 quent indorsers: Bridge v. Livingston, 11-57. 
 
 313. Acc<*ptance for larger amount tlian 
 is due drawee from drawer: Where A. ac- 
 cepted B.'s draft in favor of C. for the purpose 
 of securing C. in past and prospective indebt- 
 edness of B., agreeing tliat the amount of the 
 
 draft should be deducted from money to be- 
 come due B. under his contract with A., and 
 B. absconded without performing the con- 
 tract with A., held, that A. was liable to C. on 
 his acceptance in the fuU amount thereof, 
 although B.'s indebtedness to C. was for a less 
 amount ; the reason being that the excess of 
 the draft over B.'s indebtedness to C. was a 
 debt from C. to B. , which might be enforced 
 against C. by B. or his creditors : First Nat: 
 Bank v. Snell, 32-167. 
 
 314. The identity of plaintiff and the 
 drawee is for the jury, and a technical vari- 
 ance between the name of drawee and 
 plaintiff will not defeat the acceptor's liabil- 
 ity : Fletcher v. Conly, 2 G. Gr., 88. 
 
 315. Idemsonans: In such case, /leZd, that 
 the names "Conolly"and "Conly" were 
 sufficiently similar to be within the principle 
 of ideTn sonans: Ibid. 
 
 316. Identity of payee: By accepting the 
 bill, when presented by a person claiming to 
 be the payee, the acceptor recognizes him as 
 payee and cannot afterwards object on the 
 ground of variance between the name appear- 
 ing on the note as that of payee, and that of 
 the person in whose favor acceptance was 
 made: Ihid. 
 
 e. Drawer. 
 
 317. Agreement not to sue, release: An 
 
 agreement with the acceptor not to sue on 
 the bill has the effect of releasing the drawer : 
 First Nat. Bank v. Day, 6<H18. 
 
 318. Failure of holder to enforce pay- 
 ment from acceptor: Where the holder of 
 an accepted bill being a bank, had funds on 
 which the acceptor had a check, and sought 
 to have the acceptor consent to an applica^ 
 tion of such funds to the payment of the 
 bill, which he refused to do, Jield, that it was 
 not incumbent upon the holder to compel the 
 application of such funds to the payment of 
 the bill, and its failure to do so would not 
 release the drawer: First Nat. Bank v. Owen, 
 23-185. 
 
 319. Parol evidence is not admissible to 
 show an agreement between the drawer and 
 payee of a check that the drawer was not to 
 be held liable ; nor to show that the check 
 was given in exchange for property with 
 such condition; nor can the knowledge of 
 the parties of the suspension of the bank 
 
BILLS AND NOTES, VII, a. 
 
 199 
 
 Rights of transferee. — Protection against equities and defenses. 
 
 upon which the check was drawn, of tlie 
 fact that the drawer had funds therein, etc. , 
 V)e shown to relieve the drawer from liability. 
 Nor can fraud in refusing to enter into a 
 written agreement that the payee should 
 have no recourse against the drawer be set 
 up for the purpose of enabling drawer to 
 show by parol a change in the contract im- 
 plied from the drawing of the check, although 
 such fraud might be made a ground of, de- 
 feating recovery by the drawee or one not a 
 bona fide holder : American Emigrant Co. v. 
 Clark, 47-671. 
 
 YII. Eights of teansfbeek. 
 
 a. Under what circumstances protected 
 against equities and defenses. 
 
 320. The payee of a note cannot be pro- 
 tected against equities as a bona fide holder ; 
 therefore, held, that where a member of a 
 firm signed the firm name to a note as surety, 
 the transaction not being connected with the 
 business of the firm, the payee was affected 
 with notice of the fact that the partner had 
 not authority to thus bind the firm : Whit- 
 more v. Adams, 17-567. 
 
 321. A party who holds a note for and in 
 the right of the payee, and not as the real 
 owner, is not to be protected as a bona fide 
 holder: Merchants' Nat. Bank v. MoNulty. 
 36-239. 
 
 322. An assig'nee in insolvency takes sub- 
 ject to all the equities in favor of third par- 
 ties, and neither he nor the ci-editors whom 
 he represents are purchasers for a valuable 
 consideration without notice as against prior 
 equitable liens; therlfore, held, that the 
 payees of checks drawn before the assignment 
 for a consideration were entitled to recover 
 from the drawee money in his hands for such 
 payment as against the assignee in an assign- 
 ment made after the drawing of the checks 
 but before their payment : Roberts v. Corbin, 
 26-315. 
 
 323. The transferee without indorse- 
 ment, although he may bring action in his 
 own name, is subject to equities existing 
 against his assignor : Yoiinker v. Martin, IS- 
 MS; Franklin v. Twogood, 18-515. 
 
 324. So, also, where he brings action in 
 tlie name of the payee : Temple v. Hays, Mor. , 
 9; liOng v. Long, Mor., 43. 
 
 326. One who takes under a transfer in a 
 separate instrument to which the transfer is 
 only incidental takes by assignment and not, 
 as indorsee : Franklin v. Twogood, 18-515. 
 
 32C. Purchaser at judicial sale: Under a 
 statutory provision (Code, § 3046) authorizing 
 an officer to levy upon and sell under execu- 
 tion things in action, and giving the assign- 
 ment thereof by the officer the same effect 
 as if made by defendant, held, that a pur- 
 chaser of a note thus levied on and sold, 
 with the officer's indorsement, taking before 
 maturity and without notice, was not sub- 
 ject to equities: Earhart v. Oant, 33-481. 
 
 327. Without reference to statutory pro- 
 vision, held, that a bona fide purchaser of a 
 note levied on and sold under execution was 
 protected against a prior purchaser of the 
 note by verbal transfer from the judgment 
 debtor, where the note was found in the 
 hands of payee's agent, and without any 
 marks of assignment to the purcliaser : Alli- 
 son V. King, 21-302. 
 
 828. A purchaser of a note at a sale under 
 execution against one with whom it had 
 been left after maturity for collection, and 
 who had wrongfully converted it to his own 
 use, acquires no title and cannot maintain 
 action thereon: McCormiek v. Williamjs, 
 54-50. 
 
 329. Non-negotiable instruments: The 
 doctrine of innocent holder has no applica- 
 ticn except to holders of commercial paper. 
 It does not extend to a mortgage, and the 
 assignee thereof is not protected against de- 
 fenses between the original parties : Tabor v. 
 Foy, 56-539. 
 
 330. Presumption in favor of transferee; 
 payment: The holder of a promissory note 
 will be presumed, in the absence of evidence 
 to the contrary, to have obtained it in good 
 faith, before maturity and for a valuable con- 
 sideration, and proof of payment to the pay ee 
 after maturity will constitute no defense: 
 Lathrop v. Donaldson, 33-334. 
 
 331. For valuable consideration ; collat- 
 eral security: An indorsee to whom a note 
 is transferred as collateral security for a pre- 
 existing debt without any other considera- 
 tion, the transfer being a niere voluntary act 
 on the part of the debtor, and the note being 
 received by the creditor without incurring 
 any new responsibility, and without parting 
 
200 
 
 BILLS AI'.'D NOTES, Vll, a. 
 
 Protection against equities and defenses. 
 
 with anything, or subjecting himself to any 
 loss or delay, the subsisting debt being left 
 precisely in the same condition as it was be- 
 fore the transfer, is not eutitled~to be consid- 
 ered as having taken the note for value, nor 
 in the usual course of business ; Trustees of 
 Iowa College v. Mill, 13-462 ; Ryan v. Chew, 
 13-589; Ruddidkv. Lloyd, 15-4il: Union Nat. 
 Bank v. Barber, 56-559 ; Bone v. Tharp, 63- 
 233. 
 
 332. The fact that the creditor had ground 
 for attachment, and in fact refrained from 
 proceeding by attachment on account of the 
 transfer of the note to him as security, al- 
 though not entering into any obligation not 
 to proceed by attachment, will not constitute 
 him a holder for value of the note so as to be 
 relieved from^ equities: Bone v. Tharp, 63- 
 233. 
 
 333. If the note is accepted in payment of 
 a pre-existing indebtedness, the transferee 
 has the same rights as if it had been trans- 
 ferred for an indebtedness then arising : John- 
 son V. Barney, 1-531. 
 
 334. An extension of time by the creditor 
 is sufficient consideration for the transfer of 
 the note to him as collateral security to con- 
 stitute him a holder for value, although it 
 does not appear that any loss resulted to him 
 on account of such extension: Wormer v. 
 Waterloo Ag'l Works, 50-262. 
 
 335. One who takes a note before matu- 
 rity, without notice, as collateral security for 
 his liability in becoming surety for the trans- 
 feiTer on a debt which he afterward pays, is 
 a holder in good faith for valuable consider- 
 ation in the ordinary course of business, and 
 takes free from equities between antecedent 
 parties: Stotts v. Byers, 17-303. 
 
 33G. For collection : The indorsee, under 
 an indorsement for collection merely, does 
 not become a hona fide holder : Johnson v. 
 Barney, 1-531. 
 
 337. For less than face value : The fact that 
 a purchaser pays less than the apparent value 
 of the instrument will not prevent his recov- 
 ery as a purchaser for value : Sully v. Gold- 
 smith,. 33-397. 
 
 338. Recovery not limited to considera- 
 tion paid : A bona fide holder for value is 
 not limited in his recovery against the maker, 
 upon- proof of want of consideration, to the 
 amount paid by liim to his transferrer, but 
 
 may recover the entire amount of the note : 
 JUiy V. Wissman, 36-305 ; National Bank v. 
 Green, 33-140. 
 
 339. The payee having acquired the legal 
 right to sue the maker, may dispose of the note 
 at any rate of discount from its face which 
 he sees lit, and the purchaser will have the 
 right to enforce it against the maker for its 
 face : Dickerman v. Day, 31-444. 
 
 340. In an action against a bank upon a 
 bailk bill issued by it, evidence tending to 
 show I that plaintiff purchased the bill at a 
 discount is not admissible : Taylor v. Cook, 
 14-501. 
 
 341. Usual course of business: If a note 
 is taken out of the usual course of business 
 under circumstances calculated to impart 
 notice of its infirmities, the holder receives it 
 at his peril, although taken before due and 
 without notice of fraud : Moore v., Moore, 
 39-461. 
 
 342. By due course of business is meant 
 according to the customs and usages of 
 commercial transactions. If the paper is 
 purchased before maturity, it is such a 
 transaction ; if purchased after maturity, it 
 is not in accordance with commercial trans- 
 actions : Wood V. McKean, 64-16. 
 
 343. Before maturity: The holder of a 
 note acquiring title, even for value, after 
 due, is subject to all the equities which 
 attach thereto between the antecedent or 
 immediate parties : Barlmo v. Scott's Adm'rs, 
 12-63. 
 
 344. Evidence as to the transfer of a note 
 before maturity held sufficient in a particu- 
 lar case : Markley v. Hull, 51-109. 
 
 345. Check; diligrtico in inesciitmcnt; 
 payment: While a <;iieck is not technically 
 due before presentment, yet a party may take 
 it under suck chcuuisianccs as to m:\ke it a 
 stale demand on account of lack of diligence 
 in presenting it for payment, and he will 
 thereby acquire no higher title than that of a 
 jjayee, and be subject to like equities. Under 
 such circumstances evidence of payment to 
 a prior party is admissible. "What amouots 
 to due diligence must be determined from 
 the circumstances of each case: First Nat. 
 Bank v. Needham, 39-349. 
 
 34G. Fictitious payee: A bona ^kte holder 
 for value and without notice of the fact that 
 the note is made payable to a fictitious payee 
 
BILLS AND NOTES, VII, a. 
 
 201 
 
 Protection against equities and defenses. 
 
 is not subject to defenses, and the maker is 
 estopped, as against such holder, from setting 
 up that fact. By his act in making it pay- 
 able to such person, the maker afiSrms his 
 existence, and in respect to such a holder is 
 bound to know that the payee is a real person : 
 Lane v. KreJcle, 23-399. 
 
 347. Not negotiated to payee: The fact 
 that a note payable to payee or bearer is 
 negotiated to another person than the payee 
 is not 'of itself suiScient to charge the taker 
 thereof with notice and subject him to de- 
 fenses: Gage v. Sharp, 24-15. 
 
 348. One who takes a note payable to 
 another person or bearer knowing that it 
 has not been delivered to the payee named, 
 but that it is delivered to him to effect the 
 same purpose as it was originally intended to 
 effect, is not thereby subjected to equities of 
 which he had no knowledge : Laub v. Rudd, 
 37-617. 
 
 349. N^otiation of accomuiodation 
 jtaper by maker instead of indorser: The 
 fact that a note bearing the blank indorse- 
 ment of the payee is negotiated by the maker 
 does not affect a bona fide holder for value 
 with notice of defenses. Such negotiation is 
 the usual course of business as to accommo- 
 dation paper : Winters v. Home Ins. Co., 30- 
 173. 
 
 350. Negotiation of bill before accept- 
 ance : The fact that a purchaser takes a bill 
 before acceptance does not affect him with 
 knowledge of a defense thereto on the part 
 of the di-awer : Adae v. Zangs, 41-536. 
 
 35L Transfer before maturity : delivery 
 after; Where a note is deposited as collateral 
 security, and wliile so beid, and before ma- 
 turity, is sold to a third person who does not 
 get possession until after maturity, such 
 third person is nevei-tholess protected as a 
 bona fide holder; Grimm v. Woxner, 45- 
 106. 
 
 352. Special acceptance: An indorsee tak- 
 ing a bUl before maturity under tlie terms 
 of a special acceptance acquires the rights 
 of a bona fide holder as to the acceptor, 
 although the terms of the acceptance may 
 be such as to discharge drawer and prior in- 
 dorsers: Bridge v. Livingston, 11-57. 
 
 353. Acts of olllcers of Gorporatlon: Cer- 
 tain facts as to the negotiation of promissory 
 notes by the treasurer of a corporation, held 
 
 not sufficient to constitute notice to the 
 holder as to infirmities therein: Pond v. 
 Waterloo Ag'l Works, 50-596. 
 
 354. Where the note of a corporation 
 indorsed in blank by the payee was nego- 
 tiated by the secretary of the company as his 
 own, held, that the purchaser took as a 
 holder in good faith, although it appeared on 
 the face of the note that the person from 
 whom he acquired title was such secretary : 
 Wormer v. Waterloo Ag'l Works, 50-263. 
 
 355. Want of consideration: The fact 
 that a company selling machines has sold 
 some which are defective does not show that 
 a particular machine sold by it, for which a 
 note was given in pai't payment, was defect- 
 ive, and knowledge of the former fact would 
 not affect the purchaser of the note with 
 notice of want of consideration therein: 
 McDonald M'f'g Co. v^ Thomas, 53-558. 
 
 356. Accommodation paper: The fact 
 that a note is accommodation paper is no de- 
 fense thereto by the accommodation maker 
 as against the 6o9ia ^e holder acquiring it in 
 the usual course of business for value before 
 maturity without notice of any fraud in ob- 
 taining the signature of such maker. Ac- 
 commodation paper is an exception to the 
 rule that one taking paper with knowledge 
 that it is open to the defense of want of con- 
 sideration against the original payee takes 
 subject to such defense: Winters v. Horns 
 Ins. Co., 30-173. 
 
 357. Negligence of transferee ; failure to 
 make inquiry: The weight of authority 
 seems to be that negligence of a purchaser to 
 take notice of circumstances which would 
 put a prudent man on inquiiy, even where 
 it amounts to gross negligence, will not 
 necessarily subject him to equities or de- 
 fenses. It will have that effect only where 
 it evinces actual bad faith: Cook v. Weir- 
 man, 51-561 ; Pond v. Waterloo Ag'l Works, 
 50-590 ; Lake v. Reed, 29-258. 
 
 358. Mere want of diligence in ascertain- 
 ing the facts will not subject the holder to 
 the defense of fraud or want of considei-a- 
 tion, even though he was in a situation 
 where such facts might have been ascer- 
 tained by inquiry : Kelly v. Ford, 4^140. 
 
 359. A purchaser will not be put upon in- 
 quiry and charged with notice or fraud 
 merely by circumstances ^ifficient to arouse 
 
202 
 
 BILLS AND NOTES, VII, a. 
 
 Protection against equities and defenses. 
 
 suspicion and put a reasonable man upon in- 
 quiry : Lane v. Evans, 49-156. 
 
 SCO. Pacts constituting notice of in- 
 lirniitics: But if from the circumstances 
 attending tlie transfer the purcha.ser must 
 liave known that the person offering the note 
 had no right to transfer it, then he is bound 
 to make inquiry, and if he does not he takes 
 it at his peril: Trustees of Iowa College v. 
 Hill, 12-463. 
 
 361. To affect a purcliaser with notice of a 
 defenfe to the note it is not essential that his 
 knowledge be established by direct testi- 
 mony; it may be shown by circumstances 
 and inference therefrom. The fact that the 
 purchaser was an employee of the payee of 
 the note, and might have known that the 
 maker had on several occasions purchased 
 intoxicating liquors of the payee, with other 
 facts, held, to have a tendency to show that 
 the purchaser was not without notice : Hoff- 
 man V. Leibfarth, 51-711. 
 
 3G2. Knowledge of defenses: Where a 
 holder of a draft, after it was due, and after 
 the acceptor had notified the agent of such 
 holder that it was a swindle and would not 
 be paid, advanced money thereon, held, that 
 as to such advances the holder was subject 
 to any defenses the acceptor might have: 
 Delaware County Bank v. Buncombe, 48-488. 
 
 363. Where the purchaser of a note before 
 maturity had notice tliat it was given for the 
 purchase price of land which the payee 
 had agreed to convey, and in which convey- 
 ance the wife of the payee, who was still liv- 
 ing, did not join, held, that such purchaser 
 was subject to the defense which the maker 
 of the note might interpose upon failure of 
 liis grantor to make a perfect title by reason 
 of the failure of his wife to release dower : 
 Zebley v. Sears, 38-507. 
 
 364. Transfer by purchaser without 
 notice to purchaser with notice: If the 
 transferrer of a note is a bona fide holder for 
 value before maturity, his transferee, also for 
 value and before maturity, will acquire title 
 free from equities, although such transferee 
 liimself had notice of such equities. The 
 transferee in such case acquires the same 
 title possessed by the holder from whom he 
 purchases : Mornyer v. Cooper, 35-257 ; Whit- 
 taker V. Johnson County, 10-161 ; Peabody v. 
 Bees, 18-571; Sifnon v. Merritt, 33-537; 
 
 Brewer v. Holborn, 34-473; Denham v. 
 Sankey, 88-269. 
 
 365. Purchaser without notice from 
 holder with notice: A purchaser without 
 notice for value, etc., from a holder who has 
 taken the paper with knowledge that the 
 transfer to him was fraudulent, is neverthe- 
 less protected : Stutzman v. Payne, 23-17. 
 
 366. Bights under a mortgage: The in- 
 nocent purchaser before maturity, etc., of a 
 note secured by mortgage, holds the mort- 
 gage as well as the note free from equities 
 between the parties : Vpdegraft v. Edwards, 
 45-513. 
 
 And see Mortgages, g§ 230-234. 
 
 367. Burden of proof; presumptions: 
 Proof of fraud or want of consideration be- 
 tween the original parties will not authorize 
 the inference that the note was transferred 
 after maturity or without consideration. If 
 defendant claims there was fraud or want of 
 consideration in the inception of the note, he 
 must prove that the holder took with notice 
 thereof : Kelly v. Ford, 4r-140. 
 
 368. The law will presume, in the absence 
 of rebutting proofs, that the holder acquir- 
 ing the paper before maturity is a bona fide 
 holder for a valuable consideration without 
 notice. It is incumbent upon the defendant 
 to overcome such prima facie title by satli- 
 factory proof: Trustees of Iowa College v. 
 Hill, 12-462. 
 
 369. The maker, relying upon fraud as a 
 defense in an action by an indorsee taking be- 
 fore maturity, must prove that such pur- 
 chaser took with notice of the fraud : Stein 
 V. Keeler, 4 G. Gr., 86. 
 
 370. As against a subsequent holder, an 
 allegation of fraud in the execution of the 
 instrument is not enough to throw upon such 
 holder the burden of proving himself to be 
 an innocent holder, but defendant must also 
 allege and prove that the holder took the 
 paper after due, and that he had notice, and 
 that he gave no value. The mere want or 
 failure of consideration is not sufficient to 
 overcome the presumption in favor of the 
 holder and throw the burden of proof upon 
 him : Clapp v. Cedar County, 5-15. 
 
 371. If the note has been obtained by fraud, 
 the burden of proof is upon the holder suing 
 thereon to show that he is the bona fide 
 holder. This is the rule I'elating to the evi- 
 
BILLS AND NOTES, VII, b, aa. 
 
 203 
 
 Protection against equities. — If innocent purchaser. 
 
 dence but not to the pleadings where the ac- 
 tion is by a person not the payee. In such 
 case it is necessary to allege notice on the 
 part of the holder of the facts pleaded in de- 
 fense, and that the holder gave no value: 
 Lane v. Krekle, 32-399. 
 
 372. An indorsee seeking to enforce pay- 
 iuent of a note which is tainted with fraud 
 in its inception has the burden of proof 
 thrown on him to show that he is a, bona fide 
 holder: Banlc of Monroe v. Anderson Bros. 
 Mining, etc., Co., 65-693. 
 
 373. Where fraud or illegality in the in- 
 ception of a note is pleaded as a defense in an 
 action thereon and supported by evidence, 
 the burden of proof is cast upon plaintiff to 
 show that he gave full value, and that he is 
 a bona fide purchaser before maturity : Wood- 
 ward V. Rodgers, 31-342; iJocfc Island Nat. 
 Bank v. Nelson, 41-563. 
 
 374. Where a partnership sought to recover 
 on a promissory note fraudulently issued, 
 claiming to be a bona fide purchaser thereof 
 before maturity without notice, held, that it 
 was not sufficient for plaintiff to show that 
 the partner making the purchase for the firm 
 had no notice of the defect in the note, but 
 it must be made to appear that no member 
 of the firm was affected with such notice: 
 Frank v. Blake, 58-750. 
 
 375. In an action on a note against the 
 maker who sets up fraud in the inception of 
 the note as a defense, the burden of proof is 
 upon him to establish such fraud, and evi- 
 dence thereof is admissible, although plaint- 
 iff alleges that he is an innocent holder : Terry 
 V. Taylor, 64-35. 
 
 37C. While possession is prima facie evi- 
 dence that the holder obtained the note for 
 value, yet where it appears that the rightful 
 owner never legally parted with the note, 
 but it was wrongfully delivered to the holder 
 by one without authority, the burden of 
 proving the payment of value is upon the 
 liolder: Union Nat. Bank v. Barber, 56-559. 
 
 b. Against what equities and defenses 
 protected. 
 
 aa. If innocent purchaser. 
 
 377. Protected against frand: As against 
 an innocent holder of a negotiable instru- 
 
 ment, fraud in its inception cannot be setup : 
 Temple v. Hays, Mor., 9. 
 
 378. Before fraud can be made available 
 against the holder of a note it must be shown 
 either that he took the same after maturity or 
 that he took it with notice of the fraud: 
 Loomis V. Metcalf, 30-382. 
 
 379. A sharp distinction is made between 
 a case where a person supposes he is execut- 
 ing an instrument not a note, and by fraud 
 is induced to execute a negotiable note, and 
 a case where a person intends to execute a 
 negotiable note. Whether in the latter case 
 the maker is absolutely precluded from set- 
 ting up fraud as a defense against the inno- 
 cent indorsee for value before maturity, 
 queer e; but certainly he is precluded from 
 doing so unless he can show himself free 
 from negligence: Fayette County Savings 
 Bank v. Steffes, 54^314. 
 
 380. A fraud perpetrated by the payee 
 or his agent in procuring the note is not 
 available as against a holder for value taking 
 the note before maturity in the ordinary 
 course of business, until it be shown that 
 such holder had notice of the fraud : Lake v. 
 Reed, 39-258. 
 
 381. Negligence of maker: The negh- 
 gence of the maker in failing to read the 
 note at the time of signing it, by reason of 
 which he executes a different note from 
 that intended, will preclude him from 
 setting that fact up as a defense against 
 a bona fide holder: Wright v. Flinn, 33- 
 159. 
 
 382. Fraudulent representations: The 
 maker of a promissory note in an action 
 by the bona fide holder for value, taking 
 before maturity, cannot set up the defense of 
 fraudulent misrepresentations by the payee 
 when such fraud does not amount to forgery : 
 Douglass v. Matting, 29-498. 
 
 383. Failure to stamp: When there was 
 nothing on the face of the instrument to 
 show that the stamp required by the United 
 States revenue laws was affixed after its de- 
 livery to the payee, held, that it would be 
 good in the hands of an indorsee or holder 
 for value who received it without notice of 
 such fact : Blaclcwell v. Denie, 23-63. 
 
 As to the protection of a bona fide holder 
 against the defense that the instrument was 
 not stamped, see supra, %% 69-73. 
 
20i 
 
 BILLS AND NOTES, VII, b, aa. 
 
 Protection against equities. — If innocent purchaser. 
 
 384. Defenses to insurance notes: To 
 
 render a note given for insurance void in the 
 hands of an innocent holder under the statu- 
 tory provision (Code, § 1146) that notes taken 
 for policies of insurance in any coiJipany 
 doing business in the state shall show upon 
 their face that they have been taken for in- 
 surance and not be collectible unless the com- 
 X any or its agents have fully complied with 
 the laws of -the state relative to insurance, it 
 is necessary that the fact that the note was 
 given for a policy of insurance be made to 
 appear upon its face : Cook v. Weirman, 51- 
 561. 
 
 385. Duress: A feonajfide holder for value 
 before maturity is protected against the de- 
 fense of duress in obtsiiuing the note. Such 
 fact renders the note voidable but not void : 
 Veachv. TJiompson, 15-380. 
 
 386. Negotiated without anthority: The 
 fact that one who signs a promissory note in- 
 trusts it to another to be negotiated after the 
 performance of certain conditions, or with 
 blanks to be filled, and the note is negotiated 
 contrary to such agreement and beyond the 
 authority given, will not be a defense 
 against a bona fide holder : Oage v. Sharp, 
 24-15. 
 
 387. One who indorses a note in blank for 
 collection caimot recover in an action against 
 one who bought the note from such indorsee 
 in good faith for value, although there was 
 fraud on the part of the indorsee in transfer- 
 ring the note to such purchaser. Protection 
 would also be afforded a purchaser without 
 notice from one who purchased from the 
 indorsee with notice of the fraud : Stutzman 
 V. Payne, 23-17. 
 
 388. Garnishment of maker: A good faith 
 purchaser is not aflCected by a subsequent 
 garnishment of the maker : Fowler v. Doyle, 
 16-584. 
 
 By statute the maker cannot be held liable 
 as garnishee on a negotiable note unless the 
 paper is delivered, or the garnishee exoner- 
 ated or indemnified: See G-aenishment, 
 §§ 64-71. 
 
 389. Payment of the note at maturity by 
 depositing the money for its payment at the 
 bank where it is in terms made payable, 
 although the holder has not left it there for 
 collection, is a defense against an indorsee, 
 even though the bank afterward fails and 
 
 the money is thus lost to the holder : Lazier 
 V. Horan, 55-75. 
 
 Further as to payment as a defense, see 
 infra, §§ 481-443. 
 
 390. Forgery: A purchaser before matu- 
 rity does not thereby acquire any claim upon 
 forged paper as against the apparent maker 
 who is without fault as to the forgery and 
 the transfer to the holder : Caulkins v. Whis- 
 ler, 29-495. 
 
 391. Material alteration: If the note is 
 materially altered it is not valid in the hands 
 of the innocent purchaser for value before 
 maturity, and if there is a memorandum or 
 a contract written upon the same paper qual- 
 ifying the terms of the note, and such mem- 
 orandum or contract is severed, the note is 
 thereby materially altered so as to be void 
 even in the hands of such holder : Scofield v. 
 Ford, 56-370. 
 
 392. Negligence of maker: If, however. 
 the maker is guilty of gross carelessness in 
 executing such an instrument, he may be 
 precluded from setting up the invalidity of 
 the note as against a bona fide holder tVr 
 value: Ibid. 
 
 393. Burden of proof in siicli cases: 
 Therefore in an action to enforce such a con- 
 tract against a maker, it is incumbent upon 
 the plaintiff to show facts which would take 
 the case out of the general rule, and without 
 proof of carelessness on the part of the 
 maker, the holder of what purports to be a 
 promissory note, but which has been made 
 such by cutting it out of a larger piece of 
 paper containing language not importing an 
 obligation to pay, cannot recover thereon, 
 even though he be a bona fide holder: Ibid. 
 
 394. Negligence in leaving blank: Where 
 a note was executed leaving a blank in 
 which the payee without authority inserted a 
 provision for interest, afterwards transfer- 
 ring the note to a bona fide holder for value, 
 held, that the fact of alteration could not be 
 set up to defeat the note in the hands of such 
 purchaser: Bainboltv. Eddy, 34-440. 
 
 395. Want of power to issne: Negotiation 
 will not validate obligations which are not 
 binding because of a want of power to issue 
 them : Clark v. Des Moines, 19-199. 
 
 396. Municipal bonds; wiilioiit author- 
 ity: The purchaser of municipal bonds issued 
 in excess of the constitutional hmitation of 
 
BILLS AND NOTES, VII, b, bb. 
 
 205 
 
 Protection against equities. — If not innocent purcliaser. 
 
 indebtedness is bound to know such limita- 
 tion, and the fact as to whether the indebted- 
 ness exceeds such limit or not ; McPharson v. 
 Foster, 43-48. 
 
 397. Transfer after bankruptcy: In- 
 dorsement by the payee after the commence- 
 ment of bankruptcy proceedings against him, 
 although before the maturity of the note, 
 will not pass the title nor render the indorsee 
 an innocent purchaser. The title will pass to 
 the assignee in bankruptcy when appointed : 
 Beaton v. Hinneman, 50-395. 
 
 bb. }f not innooent purchaser. 
 
 398. Equities arising after execution: It 
 
 is not necessary that the equity to which the 
 purchaser after maturity is subjected be one 
 attaching to the note at the time of its execu- 
 tion : Bates v. Kemp, 13-99. 
 
 399. Release: Therefore, held, tha!; the 
 transferee after maturity was subject to a 
 defense arising out of a release of the payee 
 by the holder of the note after maturity but 
 before the transfer : Ihid. 
 
 400. Payment: Where it appeared that 
 plaintiff was not a bona fide purchaser, held, 
 that evidence of payment of the note to the 
 payee before the transfer should have been 
 admitted : Tattle v. Bonar, 49-696. 
 
 401. Where payment was made to a person 
 claiming to act as agent for the payee, and 
 afterwards such agent claimed to acquire 
 title to the note and transferred it to a third 
 person, held, that the transferee, taking sub- 
 ject to equities existing against the agent, 
 was affected with the payment, whether the 
 agent had authority at the time of the re- 
 ceipt of the payment to accept it for the 
 payee or not : Hayward v. Mimger, 14-516. 
 
 Further as to payment as a defense, see 
 infra, i:§ 431-443. 
 
 402. tiarnisliment: Payment by the maker 
 under process of garnishment in an action 
 against the payee will defeat recovery by a 
 holder who has obtained the note from the 
 payee with intent to defraud payee's credit- 
 ors: Oillam V. Huher, 4 G. Gr., 155. 
 
 403. Set-off: While the transferee after 
 maturity takes subject to equities attaching 
 
 to the instrument itself, and such as between 
 the parties to it would control, qualify or ex- 
 tinguish any rights arising between them, 
 he is not (in the absence of statutory pro- 
 visions) subject to equities between the 
 parties to the note arising from other and 
 independent transactions between them, and 
 is, therefore, not subject to a set-off arising 
 out of an independent transaction, even 
 though existing at the time of the transfer : 
 Shipman v. Rabbins, 10-203 ; Bates v. Kemp, 
 13-323; liyanv. Chew, 13-589; Way v. Lamb, 
 15-79 ; Stannus v, Stannus, 30-448. 
 
 404. And this rule was held applicable, 
 notwithstanding Rev. , ^ 2760, which provided 
 that an action by an assignee of a chose in 
 action should be without prejudice to any 
 set-off or other defense existing before notice 
 of the assignment ; it being considered that 
 the fact that the paper was transferred after 
 maturity, if in the usual mode of transfeiTing 
 negotiable paper, would not render it a mere 
 non-negotiable chose in action : Richards v. 
 Daily, 34r-437. 
 
 403. But under Code, ^ 2546,1 very similar 
 to the section of the Revision above referred 
 to, it is held that the transferee after matu- 
 rity of a negotiable note, takes subject to any 
 counter-claim, though it be an independent 
 cause of action, in favor of the maker and 
 against the transferrer, existing before notice 
 of the transfer: Downing v. Oibson, 53-517. 
 
 408. And the same rule is applied to an in- 
 dorsee of negotiable paper before maturity, if 
 the indorsement is not in good faith and for 
 a valuable consideration : Bone v. Tharp, 63- 
 323. 
 
 407. Under the section of the Code just re- 
 ferred to, held, also, that the indorsee after 
 maturity takes subject to the defense of pay- 
 ment made by maker to payee before notice 
 of the transfer: Haywood v. Seeber, 61-574. 
 
 408. Equities or del'enses arising after 
 transler: The bona fi.de holder for value 
 after maturity is not subject to any equity 
 or defense arising after the transfer : Campbell 
 V. Rusch, 9-337 ; Bates v. Kemp, 13-233. 
 
 409. Therefore, held, that a defense or set- 
 off in favor of the maker of a note given 
 
 ' Code, § 25i6. In case of the assignment of a thing in action, the action by the assignee shall be without prej- 
 udice to any counter-claim, defense, or cause of action, whether matured or not, if matured when plead, exist- 
 ing in favor of the defendant and against the assignor before notice of the assignment; but this section shall 
 not apply to negotiable instruments transferrsd in good faith and upon valuable consideration before due. 
 
206 
 
 BILLS AND NOTES, VII, b, bb; VIII, a. 
 
 Protection against equities. — Defenses. 
 
 for the purchase price of real property grow- 
 ing out of the failure of consideration, by 
 reason of the failure or inability of the seller 
 to convey a good title at the time stipulated 
 in the contract, could not be set up as against 
 an indorsee of the note after maturity but 
 before the defense had arisen : Bates v. Kemp, 
 13-223; Zebleyv. Sears, 38-507. 
 
 410. An equity arising after the transfer 
 of an overdue note cannot affect the holder. 
 He taies with the transfer all the rights of 
 the indorser. Where a corporation took de- 
 fendant's note in payment for an instalment 
 on his stock, and, after transferring the same 
 after maturity to a purchaser for value, de- 
 clared his stock forfeited for failure to pay 
 subsequent instalments, held, that such ac- 
 tion on the part of the corporation would not 
 affect the rights of the holder of the note to 
 recover against the maker: Whittaker v. 
 Kuhn, 52-315. 
 
 411. Under invalid assignment: Al- 
 though, where there is a valid and bona fide 
 assignment, the defense by the maker is 
 hmited to sucli matters as existed at the time 
 of notice to him of the assignment, yet if for 
 any reason the assignment was invalid, the 
 holder will be subject to any defense of the 
 maker which he may have up to the trial : 
 Pearson v. Cinnmings, 28-344. 
 
 412. Equities between assignor and per- 
 son not a party: An assignee after maturity 
 takes subject only to such equities as exist 
 between the parties to the instrument, and 
 not subject to equities between the assignor 
 and one not a party, not affecting the validity 
 of the note : Crosby v. Tanner, 40-136. 
 
 413. Therefore, held, that the assignee of a 
 note secured by moi-tgage, taking it after 
 maturity, was not bound by the agreement 
 between the assignor and a third person to 
 release the mortgage, of which agreement 
 the assignee had no notice : Ibid. 
 
 414. So an assignee by delivery without 
 indorsement of an instrument not payable to 
 bearer, though he takes subject to all equities 
 between the original parties in the nature 
 of defenses to the enforcement of the note, is 
 not subject to equities not affecting the va- 
 lidity of the note but which only exist 
 against the maker in favor of a stranger in- 
 volving the hen of a security therefor : Van- 
 dercook v. Baker, 48-199. 
 
 415. Accommodation paper: Where an 
 accommodation note was indorsed by the 
 payee after maturity and used as collateral 
 security, and such indorsee sold it to plaints 
 iff, held, that plaintiff could only recover 
 thereon the amount of the unpaid debt which 
 such note was given to secure: First Nat. 
 Bank v. Werst, 53-684. 
 
 410. Transfer without authority: The 
 true owner of negotiable paper transferred 
 after maturity as collateral security and 
 wrongfully sold by the liolder, may assert, 
 his title against the last holder although he 
 has acquired it without notice and for a val- 
 uable consideration : Wood v. McKean, 64^16. 
 
 417. False representations: Where a 
 note was executed by defendant, who wan 
 not liable for the indebtedness for which it 
 was given, and upon the representation of 
 the payee that he would procure the note of 
 the person liable and surrender the one given 
 by defendant, held, that such facts consti- 
 tuted a defense which might be set up as 
 against the purchaser after maturity : MeNitt 
 V. Helm, 33-842. 
 
 418. Payment after notice of transfer: 
 Payment made to the payee of a note after 
 notice of its transfer to a third person will 
 not extinguish the note and cannot be set up 
 although the suit is in the name of the payee 
 for the use of the holder : Gregg v. McCol- 
 loch, 1 G. Gr., 274. 
 
 VIII. Defenses as between the okk;- 
 
 INAL PARTIES. 
 
 a. Forgery, fraud, illegality, etc. 
 
 419. Denial of signature ; forgery : 
 
 Where defendant denies the execution of the 
 instrument and assumes the burden of prov- 
 ing that the signature is not his, it is suf^ 
 ficient if he proves his case by a preponder- 
 ance of evidence. Denial of the execution 
 does not impute a crime so as to render proof 
 thereof beyond a reasonable doubt necessary : 
 Ashieorth v. Grubbs, 47-353. 
 
 420. Where the signature of a note was, in 
 a particular case, denied under oath, held. 
 that the evidence was sufficient to support a 
 verdict against defendant, notwithstanding 
 such denial : McDonald v. Noonan, 50-83. 
 
 421. Upon an issue as to forgery, want of 
 
BILLS AND NOTES, VIII, a, b. 
 
 ao7, 
 
 Defenses. — Pavment. 
 
 consideration is material ; Donahue v. Wag- 
 ner, 88-358. 
 
 422. Fraud ; want of consideration : As 
 between the payee and the administrator of 
 the maker, the same defense can be set up 
 against a |iromissory note as against any con- 
 tract, written or parol, on account of fraud 
 or want of consideration : George v. Oillespie, 
 1 G. Gr., 421. 
 
 423. Failure of consideration: Defend- 
 ant may, in support of the defense of failure 
 of consideration, show that the note was 
 given in consideration of an agreement on 
 the part of payee which was not performed, 
 and such evidence will not be excluded as 
 varying the terms of a written contract by 
 parol : Dicken v, Morgan, 54-684. 
 
 424. Waiver of defense by renewal: A 
 party cannot, after giving a new note for an 
 indebtedness on a former /lote, set up partial 
 failure of consideration of which he had 
 knowledge at the time of renewal : Keyes v, 
 Mann, 63-560. 
 
 425. Fraud in reading to maker: Where 
 the maker of a note signs it without reading 
 it, and afterwards seeks relief therefrom on 
 the ground of mistake or fraud, in that as 
 read to him it did not correspond with the 
 written words, and alleges matter of excuse 
 for not reading it, the question of fact as to 
 whether, under the circumstances, he was 
 guilty of negligence, is for the jury : Hop- 
 kins V. Hawkeye Ins. Co., 57-303. 
 
 And see Conteacts, §§ 115-117. 
 
 420. Fraud of payee: The omission of the 
 payee of a note given in settlement of a 
 claim to state all the facts in regard to the 
 claim to the maker will not defeat the note 
 if the facts were known to the maker from 
 other sources of information: Sullivan v. 
 Collins, 18-238. 
 
 427. False representations as to the use 
 to be ;made of the proceeds of an endow- 
 ment note, given to a college, made without 
 authority by the agent through whom the 
 note was procured, may be shown as a de- 
 fense thereto : Bridges v. Yellow Springs Col- 
 lege, 19-573. 
 
 428. Condition precedent; endowment 
 note: It is competent for the parties to an 
 endowment note to agree that it shall not be 
 enforced unless a stipulated amount of en- 
 dowment is raised : Ingham v. Dudley, 60-16. 
 
 429. Destruction of note: There can bp 
 no recovery on a destroyed note unless it m 
 clearly established that the destruction was 
 through ignorance or by mistake : McDonald 
 V. Jackson, 56-643. 
 
 430. Omission of stamp: The omission of 
 a stamp will defeat the note only where it is 
 fraudulently omitted, and in that case alone 
 constitutes a defense, which defense must bt- 
 pleaded or sustained by evidence at the trial 
 in order to benefit the party relying thereon. 
 The burden rests upon such party to show 
 that the stamp was omitted to defraud the 
 government : Ricord v. Jones. 33-26. 
 
 See, also, supra, §§ 68-75. 
 
 b. Payment. 
 
 431. Readiness to pay ; presentment for 
 payment: In an action against a maker of a 
 note it is not necessary to aver presentment 
 for payment. The defense of readiness to 
 pay should come from defendant: Tarbellr. 
 Stevens, 7-163. 
 
 432. Presentment at particular place: 
 Where a note is payable at a given place the 
 maker can exonerate himself from the pay- 
 ment of interest after maturity only by 
 showing that he had funds at the place speci- 
 fied for the discharge of the note : Robinson 
 V. Lair, 31-9. 
 
 433. Deposit of money at bank where 
 payable : Where a note is made payable at a 
 bank and the maker deposits there the amount 
 necessary to fully discharge it, and the bank 
 afterwards fails, such deposit is a full defense 
 to an action by the payee or indorsee against 
 the maker. It is presumed when a note is 
 made payable at a bank that the parties ex- 
 pect collection to be made through the bank, 
 and although the bank holding the money 
 deposited is technically an agent of the depos- 
 itor, yet the money is deposited for the holder 
 of the note, and it requires no act of the 
 depositor to authorize the bank to pay it: 
 Lazier v. Iloran, 55-75. 
 
 And see Banks, § 8. 
 
 434. Payment In property at particular 
 place; tender: Where a note is payable in 
 px'operty at a particular place the debt is not 
 discharged unless the maker has property at 
 that place set apart and designated as the 
 property of the payee ready for delivery: 
 Games v. Manning, 2 G. Gr., 251. 
 
208 
 
 BILLS AND NOTES, VIII, b. 
 
 Payment. 
 
 435. To constitute payment in such case, 
 it must appear that the maker either paid, 
 tendered or designated, and set ;^part the 
 property at the time and place stipulated in 
 the note : Spafford v. Stutsman, 9-128. 
 
 436. Pajment to the holder of a note 
 payable to bearer will be considered as made 
 in good faith, and as discharging the note, 
 unless there are circumstances amounting to 
 clear proof that he is a fraudulent holder. 
 Mere suspicion that such holder is not the 
 owner will not exonerate the maker from 
 making payment: Stoddard v. Burton, 41- 
 583. 
 
 437. Payment before maturity: While 
 payment before due of a note that has been 
 lost or stolen does not discharge the maker 
 from liability to the real owner, because the 
 payment is out of the ordinary course of 
 business, yet where the note is, by its terms, 
 payable at any time within a limited period 
 at the option of the maker, payment made 
 during that period cannot be deemed to be 
 out of the ordinary course of business, and 
 if such payment is made to the person ap- 
 pearing entitled thereto it will discharge the 
 maker: Ibid. 
 
 438. Payment to payee will be no defense 
 to a note as against a holder who has taken 
 it before maturity as coUatei-al security : City 
 Bank v. Taylor, 60-66. 
 
 439. Payment of a negotiable note to the 
 payee, by the maker, without notice of a 
 transfer made after maturity, is a defense to 
 an action by an indorsee who takes by such 
 transfer after maturity : Haytvood v. Seeber, 
 61-574. 
 
 440. Payment to trustee: The person 
 making payment of a note executed to a 
 trustee is not bound to see that the money 
 paid is properly appropriated by the trustee : 
 Thomassen v. Van Wyngaarden, 65-687. 
 
 441. Payment to ag-eiit: Where a, party 
 caused a note to be taken by his agent in his 
 own name, inducing the maker to believe 
 that the agent was the real party in interest, 
 and allowed the agent to receive the interest 
 from time to time, held, that he was bound 
 by the payment made to such agent of the 
 principal when the note became due, no no- 
 tice to the maker that the payee was not au- 
 thorized to receive payment being given: 
 Sax V. Drake, 69-760. 
 
 442. Where a note was made payable at a 
 particular place, and the maker, before the 
 note became due, deposited at that place 
 with another the amount necessary to pay 
 the note, notifying the holder of that fact, 
 and the holder residing at another place 
 wrote to the person with whom the money 
 was deposited to bring or send the money at 
 the first opportnnit}-, and before the monej' 
 was thus sent, it was stplen from the person 
 with whom it was deposited, held, that such 
 deposit did not constitute a payment of the 
 note, and that the person with whom the de- 
 posit was made had not been accepted as 
 agent of the holder in such sense that the 
 holder could not recover from the maker: 
 First Nat. Bank v. Free, 67-11. 
 
 443. Payment must be in money: A 
 promissorj' note in the hands of an agent for 
 collection can only be paid in money or coin, 
 and a payment in currency not legal tender 
 is only a valid payment when the agent is 
 specifically authoi-ized to receive such cur- 
 rency : Graydon v. Patterson, 13-256. 
 
 444. Jud^^ment on collateral security as 
 a satisfaction : Where the maker of a note 
 gave the note of a third person indorsed by 
 himself as collateral security, and the holder 
 recovered judgment on such collatej-al se- 
 curity against the maker thereof and in- 
 dorser, held, that such judgment was no bar 
 to a recovery on the principal note, though 
 the satisfaction of such judgment would bar 
 an action on the principal note to the extent 
 of the amount thereof : Biimheimer v. Hart, 
 27-19. 
 
 445. Judgment against joint and several 
 maker, remaining unsatisfied, wiU not dis- 
 charge the note as to his co-maker : Harlan v. 
 Berry, 4 G. Gr., 212. 
 
 446. Particular facts as showing: pay- 
 ment: An instruction as to whether the 
 facts in a pai-ticular case showed the pay- 
 ment of a note sued on, held proper : Dough- 
 erty V. Deeney, 45-443. 
 
 447. Held, that certain facts relied upon as 
 showing payment, while not suiHcient to 
 raise a presumption to that effect, were 
 proper to be taken into consideration in de- 
 termining the question : Williams v. Barrett, 
 52-637. 
 
 448. Eeceipt; burden of proof: Where 
 payment is pleaded as a defense, the produo- 
 
BILLS AND NOTES, VIII, b; IX. 
 
 209 
 
 Payment. — Action upon. 
 
 tion of a receipt is sufficient evidence of pay- 
 ment to throw upon plaintiff the burden of 
 explaining or contradicting sucli receipt: 
 Williamson v. Reddish. 45-550. 
 
 449. Iiidorsenieut of payment: It will be 
 presumed that an indorsement of payment 
 found on the back of the note was made 
 with the knowledge and consent of the per- 
 son in whose possession it was at the time 
 sucli indorsement purports to have been 
 made, even though it is not in the hand- 
 writing of such pei-sou: Thomassen v. Van 
 Wyngaarden, 65-687. 
 
 4bO. Where a note for seventy-flve dollars 
 provided that it might be discharged by a 
 payment of fifty dollars on or before a cer- 
 tain date, held, that an indorsement on the 
 note of the payment of fifty dollars a few 
 days after the date specified Would not show 
 payment: Holland v. Vanard, 3 G. Gr., 230. 
 
 451. Erused iiidorssment: Where a 
 credit indorsed upon the back of a note ap- 
 pears to be erased, the presumption is in favor 
 of the allowance of the erased credit, subject 
 to be rebutted by testimony. The mere cer- 
 tificate of witnesses that such credit was 
 made by mistake is not, per se, evidence of 
 the fact: Carson v. Duncan, 1 G. Gr., 466. 
 
 452. Mistake In payment: Where the 
 mater desii-ing to pay the note in full, by 
 mistake in computation pays less than the 
 full amount, such a, payment is good only 
 for the amount paid: Easton v. Strother, 57- 
 506. 
 
 453. Burden of provij)^ deduction: 
 Where by contract appended to the note it 
 was provided that if a certain tract of laud 
 for which the note was given in payment 
 did not amount to a certain quantity, the 
 amount due on the note was to be reduced 
 proportionately, held, that the burden of prov- 
 ing that the land was not of the quantity 
 specified rested upon the defendant : Jewett 
 V. Lyon, 3 G. Gr., 577. 
 
 454. Parol evidence of payment: Under 
 a plea of payment the maker may show that 
 he sold land to the holder under a parol 
 agreement in payment of the note and has 
 performed his agi-eement with reference 
 thereto, and this he may do notwithstanding 
 the fact that the agreement was contempo- 
 raneous with the execution of the not&: 
 Branner v. Piper, 25-400. I 
 
 Vol. 1 — 14 
 
 455. Presnmption of payment from 
 Inpse of lime: The mere fact that a nole 
 is about five years overdue, without any 
 other circumstance to justify the inference 
 of payment or the non-existence of the note, 
 will not give rise to a presumption of pay- 
 ment or that the note never had legal exist- 
 ence : Nash v. Gibson, 16-305. 
 
 450. Possession after payment: The 
 maker has the right, after payment, to the 
 possession of the note, and may maintain re- 
 plevin to recover such possession: Savory v. 
 Hays, 20-25. 
 
 457. Transfer to party bound to pny: 
 Whei-e a party under obligation .to pay a 
 note procures the transfer of the same to him 
 by indorsement, such transfer operates, as 
 between him and the person to whom he is 
 obligated for such payment; as a discharge 
 of the note and not as a purchase : Lawson v. 
 McKenzie, 44r-663. 
 
 IX. Action upon. 
 
 458. By assignee: Under statutory pro- 
 vision, an assignee of a non-negotiable instru- 
 ment may sue thereon in his own name, sub- 
 ject, however, to any defense or set-off which 
 the maker had against the assignor before 
 notice of the assignment (Code, § 2084) : Mer- 
 chants', etc.. Bank v. Heimtt, 3-93. 
 
 459. By indorsee: An indorsee by special 
 indorsement must sue in his own name and 
 not in the name of payee for the holder's 
 use: Hickok V. Ldbussier, Mor., 115. 
 
 4C0. By joint owners: Where a note is 
 made payable to two or more persons jointly, 
 the payees must join in an action thereon, 
 unless one or more of them refuse to join, in 
 which case those refusing may be made de- 
 fendants.- The fact that the note is payable 
 to such payees or bearer, and is held by one 
 of the payees, does not entitle him to sue 
 thereon alone: McNamee v. Carpenter, 56- 
 270. 
 
 4G1. Where payable in property; de- 
 mand: Where a note is payable in property 
 at a day certain and the property is not ten- 
 dered, suit may be brought for the amount 
 due in money, without making demand for 
 the property: Wiley v. Shcemak, 2 G. Gr., 
 205. 
 
 402. Premature action: Judgment in an 
 action upon a note commenced before its 
 
210 
 
 BILLS AND NOTES, IX — BOARD OF HEALTH. 
 
 Action upon. — Statute constitutional. 
 
 maturity, without any reason being averred 
 for having commenced the action before ma- 
 turity, is erroneous: Whitney v. Bird, 11-407. 
 403. Common counts: Recovery against 
 the indorser may be had under the common 
 counts: Knight v. Fox, Mor., 305. 
 
 484. A note payable in specific articles is 
 admissible in evidence under the common or 
 money counts : Payne v. Oouoh, 1 G. Gr. , 64. 
 
 485. Money had andreceiTcd: An action 
 by the indorsee against the maker may be 
 maintained for money had and received, the 
 note being admissible in evidence in such 
 action: King v. Wall,M.ov., 187. 
 
 41>G. Joint action against the maker and 
 guarantor may be maintained: Marvin v. 
 Adamson, 11-371 ; Mix v. Fairchild, 13-351 ; 
 . Veach v. Thompson, 15-380. 
 
 4G7. Filing against estate entitles to at- 
 torney's fee: Where a note provided for 
 attorney's fee for collection if action should 
 be commenced thereon, held, that filing the 
 note as a claim against the estate of the 
 'maker after his decease, the payment thereof 
 being resisted by the administrator, was 
 sufficient bringing of action to entitle plaint- 
 iff to the attorney's fee : Davidson v. Vorse, 
 53-384. 
 
 46S. Destroyed note : A recovery may be 
 had on a note that has been destroyed, only 
 where it is clearly established that such de- 
 struction was through ignorance or by mis- 
 take. If a note is destroyed by the holder 
 in pursuance of a fraudulent scheme, he can- 
 not recover thereon : McDonald v. Jackson, 
 56-643. 
 
 469. Lost note: Equity cannot take cog- 
 nizance of an action upon a note of which 
 the defendant wrongfully and fraudulently 
 procured and retains possession. Such a 
 case does not fall within the reason of the 
 rule allowing suit in equity upon a lost note : 
 Searcy v. Miller, 57-613. 
 
 470. Lost note; indemnifying bond: 
 Where a lost note was indorsed by special 
 indorsement so that no one but the original 
 owner could acquire any title thereto by 
 transfer, the maker cannot demand indena- 
 nity as a condition of payment : Dudman v. 
 Earl, 49-87. 
 
 471. Fraud in procuring; judgment on 
 included indebtedness: Where a note was 
 found void for fraud on account of having 
 
 been, by means of intoxication, procured for 
 too great an amount, held, that it was error 
 to render judgment for a less amount due 
 and entering into the fraudulent note. In 
 such case plaintiff should be left to seek his 
 proper relief in an appropriate action : Will- 
 cox V. Jackson, 51-308. 
 
 472. Uamnges for non-payment: The 
 statutory provision as to rate of damages to 
 be allowed and paid upon the non-accept- 
 ance or non-payment of bills of exchange 
 drawn or indorsed in this state, when dam- 
 age is recoverable, relates to foreign and not 
 to inland bills (Code, § 3096;: First Nat. 
 Bank v. Owen, 33-185. 
 
 BOARD OF HEALTH. 
 
 1. Statute constitutional: The statute (18 
 G. A., ch. 151; McClain's Ann. Stat., 451) 
 providing for a state board of health, so far 
 as it authorizes such board to require a phy- 
 sician to report information as to births and 
 deaths, is not unconstitutional. Its objects 
 are within the authority of the state, and 
 may be attained in the exercise of its police 
 power : Robinson v. Hamilton, 60-134. 
 
 2. Expenses of care of infected persons: 
 The board of health may, under § 31 of 
 that act, erect a temporary building to which 
 infected persons may be removed for isolar 
 tion, and the county will be liable for the ex- 
 penses thereof in case of the inability of the 
 infected person or persons to pay such 
 charge. Whether the infected person would 
 be liable for such expenses in any event, 
 doubted: Staples v. Plymouth County, 63- 
 364. 
 
 3. The sick person is properly chargeable 
 with all expenses which may be incurred, as 
 including expenses of removal, if that plan 
 is adopted, or isolation, if that is adopted; 
 and in the latter case the expense of food 
 furnished to the entire family during the 
 period of isolation may be included ; also, the 
 supplying of clothing in place of clothing 
 worn by the family, which is burned. For 
 all such expenses which the sick person or 
 those liable for his support are unable to pay, 
 the county is ultimately liable: Clinton v. 
 Clinton County, 61-305. 
 
 4. It is the imperative duty of the local 
 board of health to provide for a sick person. 
 
BOARD OF HEALTH— BONDS. 
 
 m 
 
 Regulations. — Amendment of. 
 
 regardless of his settlement — as where the 
 person is a foreigner, not yet having acquired 
 a settlement. The sick or afSicted person 
 must in such case be deemed to belong to the 
 county where the relief becomes necessary : 
 Jbid. 
 
 5. The county is liable for the care of sick 
 persons under said statute only in case they 
 or the persons liable for their support are not 
 able to make compensation therefor. The 
 liability of the county can be established 
 only by showing that the facts exist which 
 are contemplated by the statute as rendering 
 the county liable, and the burden of proving 
 these facts is therefore upon the party seek- 
 ing to establish such liability : Oill v. Appa- 
 noose County, 68-20. 
 
 6. The board will not be bound by the ac- 
 tions of individual members in authorizing a 
 physician to render services. Such action 
 must be by the board as a body : Young v. 
 Blackhawk County, 66-460. 
 
 7. Regulations: "Where the mayor and 
 aldermen of a city constituting a board of 
 health made a regulation that no hog-pen 
 nor inclosure wherein swine are kept and fed 
 otherwise than for purpose of commerce, 
 should be allowed within the city limits, held, 
 that such regulations might be enforced by 
 the city: State v. Holcomh, 68-107. 
 
 , 8. Jurisdiction: Exclusive jurisdiction to 
 determine what constitutes a nuisance and 
 to abate nuisances is not conferred upon the 
 local board of health. A private action for 
 damages maybe maintained against a person 
 maintaining a nuisance by one specially in- 
 jured thereby without regard to the action 
 of the board: Baker v. Bohannan, 69-60. 
 
 BOATS AND VESSELS. 
 Actions in rem against, see Actions, V. 
 
 BONDS. 
 
 Liability of principal and sureties upon 
 bond of ofacer, see Ofpiceks. 
 Liability of sureties in general, see Suee- 
 
 TYSHIP. 
 
 For conveyance of real property, see Vend- 
 ors. 
 
 Breach of, how pleaded, see Pleadings 
 §§ 80-97. 
 
 Who may sue upon, see Parties, g§ 79- 
 93. 
 
 Measure of damages in action upon, see 
 Damages, g§ 126-128. 
 
 As to bonds in particular proceedings, see 
 the respective titles. 
 
 1. Ameiidmeut of: Under statutory pro- 
 vision (Code, § 248), no defective bond or 
 other security shall prejudice the party giv- 
 ing it, provided it be so rectified within a 
 reasonable time after the defect is discov- 
 ered as not to cause essential injury to the 
 other party. So held in case of appeal bond 
 in an appeal from the county court : Mitchell 
 V. Goff, 18-434. 
 
 2. So held, also, as to bond on appeal from 
 a justice of the peace: Brock v. Manaif, 
 1-128. 
 
 3. Substitution: Courts of general juris- 
 diction have complete power over delivery 
 bonds, and the sureties therein may be 
 changed and others substituted : Ramsey v. 
 Coolbaiigh, 13-164. 
 
 4. Irregularity: A bond for the release of 
 attached property is not rendered invalid aa 
 to sureties by a mistake in its recitals as to 
 the court in which the attachment issued: 
 Ripley v. Gear, 58-460. 
 
 5. It does not follow that a bond taken by 
 an officer is entirely invalid though not in 
 the form authorized by statute. It may be 
 good as a common-law bond if it does not 
 contravene public policy nor violate a stat- 
 ute, and it will be binding on the parties to 
 it: Sheppardv. Collins, 12-570. 
 
 6. A substantial departure from the re- 
 quirements of the statute may render the 
 bond void as taken for matters not author- 
 ized by statute ; not so with a mere verbal 
 departure, even when by statute bonds taken 
 in any other manner than therein prescribed 
 are declared void. This does not reach those 
 which are valid at common law, but only 
 those which are taken by color of office or 
 under pretense of authority : Ibid. 
 
 7. Justifying by sureties: A justice of the 
 peace has the right to require a surety on an 
 appeal bond to justify: Lane v. Goldsmith, 
 23-340. 
 
 8. Approv.tl: Where a party's name is 
 signed as surety to a bond and the approval 
 thereon is in due form, it will be conclusively- 
 presumed that such approval was with refer- 
 
212 
 
 BONDS. 
 
 Judgment against surety. 
 
 ence to such surety, even though the surety 
 was such that he might have been refused 
 by the officer : Wright v. Schmidt, 47-233. 
 
 9. Code, g 2931, providing that an attorney 
 shall not be received as surety in any pro- 
 ceeding in court, wliile it would justify the 
 officer in refusing to accept an attorney as 
 surety, and would authorize the party for 
 whose benefit the bond with an attorney as 
 surety is given to move for additional 
 security, does not relieve the attorney, who 
 has without objection been received as surety, 
 from liability on the bond : Ibid. 
 
 10. This statutory provision as to an attor- 
 ney being surety applies not only to bonds 
 for costs, under wliich heading it occurs, but 
 to injunction, attachment, and other bonds: 
 Massie v. Mann, 17-131. 
 
 As to liability of officer for approving in- 
 sufficient bond, see Officers, §g 114-121. 
 
 11. Judgment against surety: In the ab- 
 sence of express statutory provision, judg- 
 ment upon a bond against a surety thereon 
 should not be summarily entered : Smith v. 
 Bissell, 2 G. Gr., 379. 
 
 12. WJ^ere a statutory bond is given under 
 which in a certain event judgment may be 
 rendered against the principal and surety 
 without a new action, the surety is so far a 
 party to the proceeding that he may move 
 for a correction of the judgment as against 
 him, or maj' move for a new trial, or may 
 apply for the correction of an error which 
 affects him only, and does not affect the 
 merits of the action: Preem,an v. Hart, 61- 
 525. 
 
 13. Insanity as a defense: "Where suit is 
 brought for the breach of a bond given in a 
 proceeding for security to keep the peace, the 
 fact of insanity at the time of committing 
 the act constituting a breach of such bond is 
 a defense in the same manner that it would 
 be in a criminal prosecution for the same 
 act : State v. Geddis, 42-264. 
 
 14. Conditions construed: Where one 
 member of a partnership by agreement with 
 his copartner was allowed to interpose a firm 
 indebtedness as a counter-claim in an action 
 against him individually, upon condition 
 that he would account for the amount of 
 such claim to the partnership, Jield, that he 
 thereby bound himself and his surety to abso- 
 lutely pay the amount of the claim, although 
 
 it was not then subsisting, but had already 
 been paid to him : Jones v. Fields, 57-317. 
 
 15. Where a bond provided for the delivery 
 of a land warrant, held, that on breach of 
 the condition by failure to deliver the war- 
 rant, the obligor became liable for damages, 
 and could not, after such liability attached, 
 defeat it by a tender or delivery of the land 
 warrant into court: Bolster v. Post, 57- 
 698. 
 
 16. Iliglit of action upon; parties: 
 Where a contractor filed a bond to secure to 
 laborers the amount that might be due to 
 them from such contractor in the perform- 
 ance of the work, held, that the assignee or 
 laborers performing such service thereunder 
 might sue the contractor under such bond: 
 Wells V. Kavanagh, 70 . 
 
 17. Where a bond was given by a contractor 
 to secure to the laborers the payment which 
 was due them at the time for services ren- 
 dered in the performance of work under con- 
 tract, held, that orders given to workmen or 
 credits entered in their favor by the contractor 
 were not binding upon the sureties : Ibid. 
 
 And see Paeties, g§ 79-92. 
 
 18. Indemnity ; wlien right of action ac- 
 crues: A right of action on a bond of indem- 
 nity conditioned to save the obligee harmless 
 from any damages, arises only after the 
 payment of the debt, but such payment may 
 be by note, and the right of action will exist 
 although the maker may be insolvent. If 
 the condition be to save from liabihty, the 
 right of action would accrue without pay- 
 ment : Wilson v. Smith, 23-252. 
 
 19. Where the surety on a bond for costs was 
 taking steps for his discharge, and thereupon 
 the principal executed to him an indemni- 
 fying bond, whereupon such steps were dis- 
 continued, held, that there was a sufficient 
 consideration for the indemnity : Independent 
 School Dist. V. McDonald, 39-564. 
 
 20. Where a bond is given to indemnify a 
 person for any liability to which he might 
 be subjected as surety on an official bond, 
 such surety may recover thereon the amount 
 of the judgment rendered against him on 
 such bond and satisfied by him, although 
 such judgment is rendered by default, it not 
 appearing that he had any defense that 
 would have been available, and the record 
 also showing that the claim against him was 
 
BOUNTY— BREACH OF PROMISE. 
 
 213 
 
 Miscellaneous. — What constitutes a contract to maiTy. 
 
 established upon proof: Watson v. Van 
 Meter, 43-76. 
 
 As to breach of contract of indemnity, see 
 CONTEACTS, § 576. 
 
 21. Bread) of bond : Where one gave bond 
 for the return of fixtures placed in a mill, 
 which thereby became subject to a mortgage 
 and were sold under foreclosure thereof, 
 held, that defendant was excused from re- 
 turning the property although he had cove- 
 nanted to do so, by reason of the fact that 
 the right of plaintiffs to its return had, by 
 virtue of legal proceedings again&t them, ex- 
 pired and ended : Daniels v. Borne, 25-403. 
 
 22. Conditions: A bond will be good 
 though it contain no recital of terms or con- 
 ditions upon which the particular act therein 
 covenanted to be done is to be performed : 
 Huntington v. Fisher, 37-376. 
 
 BOUNDARIES. 
 
 See Public Lajstds. 
 
 BOUNTY. 
 
 1. Where a board of supervisors offered a 
 bounty on one day, and on the next passed 
 another resolution appointing a committee to 
 carry it into effect, and limiting the offer 
 by certain restrictions, held, that the two 
 resolutions should be taken together as form- 
 ing one promise, and that a person who had 
 subsequently enlisted was subject to the re- 
 strictions : Keough v. Scott County, 35-567. 
 
 2. In an action to recover a bounty offered 
 for the enlistment of soldiers, it is imma- 
 terial whether the plaintiff had made up 
 his mind to enlist before he heard of the 
 bounty offered, or whether he would have 
 enlisted if he had not heard of it: Keough v. 
 Scott County, 28-837. 
 
 3. Where a county offered a bounty to 
 volunteers to fill up its quota of a call for 
 troops, and certain persons were named as 
 a committee, who should manage the matter, 
 and who were to pay nothing until the per- 
 sons volunteering were accepted, or after the 
 quota under the call should have been filled, 
 held, that if the committee did act, and volun- 
 teers were offered and accepted under the call, 
 the county would be Hable, though it should 
 
 afterwards appear there was no deficiency in . 
 the quota : Ibid. 
 
 i. Under a certain resolution of a board of 
 supervisors in reference to enlistments, held, 
 that the county %vould become liable to any 
 volunteers who should enlist after such resolu- 
 tion was passed, whether under a call then 
 made, or under subsequent calls: Sowers v. 
 Page County, 32-530. 
 
 5. Held, also, that the county became liable 
 to persons enlisting to the credit of a town- 
 ship in the county, although no definite 
 quota was specifically assigned to the county 
 as distinct from its townships: Ibid. 
 
 6. Where a person volunteered before the 
 bounty which he sought to recover was 
 offered, held, that he was not entitled thereto, 
 although he supposed at the time of volun- 
 teering that the bounty had been offered: 
 Wells V. Scott County, 36-141. 
 
 7. Where a person enlisted three days after 
 the proclamation by the governor that the 
 quota was full, held, that it was to be deter- 
 mined as a matter of fact whether such per- 
 son had notice or knowledge of the proclar 
 mation at the time of enlisting, and that the 
 fact of its having been published in a daily 
 paper in the county would not necessarily 
 affect him with such notice : Mayweather v. 
 Scott County, 36-143. 
 
 BREACH OF PROMISE. 
 
 1. What constitutes a contract to marry: 
 
 In an action for breach of promise, a recipro- 
 cal, mutual and obligatory conti-act must be 
 shown, but an express promise is not neces- 
 sary. The contract may be made out by 
 proof of unequivocal conduct of the parties, 
 and of a reciprocal understanding between 
 them, their friends and relations, that a mar- 
 riage was to take place : Thurston v. Cave- 
 nor, 8-155. 
 
 2. To warrant a recovery for breach of 
 promise, it is not necessary that the plaintiff 
 prove a separate and distinct promise to 
 marry ; but a promise may be inferred from 
 the conduct of the parties, or their actions one 
 toward the other: Royal v. Smith, 40-615. 
 
 3. Renunciation ; when suit may be 
 brought: If, before the time fixed for the 
 marriage arrives, the one party renounces the 
 contract, the other may treat this as a breach 
 
214: 
 
 BREACH OF PROMISE — CARRIERS, I, a. 
 
 Subsequent offer. — Carriers of goods. 
 
 and sue at once: Solloway v. Oriffith, 32- 
 409. 
 
 4. A subsequent offer in such a case by 
 defendant to execute tbe contract would not 
 constitute a defense or mitigate the damages : 
 Ibid. 
 
 5. Proof of change of feelings on the part 
 of plaintiff after the breach is not admissible 
 in defense or mitigation: Miller v. Hayes, 
 34-496. 
 
 6. Char.icter of plaintiff: An instruction 
 that immorality of plaintiff, not known to the 
 defendant at the time of the promise of mar- 
 riage, might be considered in mitigation of 
 damages, held erroneous, as the fact, if true, 
 constituted a complete defense: Guptill v. 
 Verback, 58-98. 
 
 7. The fact that the plaintiff in an action 
 for breach of promise had been the mother 
 of an illegitimate child before the contract 
 was made will not bar an action if defend- 
 ant knew of such fact at the time of the con- 
 tract, but the fact may be considered by the 
 jury in estimating the damages : Denslow v. 
 Van Horn, 16-476. 
 
 8. Damages: If defendant wantonly, and 
 in bad faith, or for the purpose of injuring 
 the plaintiff's character, and with ilo reason- 
 able expectation that it can be established, 
 sets up in his pleadings, as a defense, the bad 
 character or unchastity of the plaintiff, and 
 fails to prove it, such fact may be considered 
 by the jury in aggravation of damages ; but 
 otherwise, if the defense is made in good 
 faith, with probable cause, and a reasonable 
 expectation that it can be established : Ibid. 
 
 9. In an action for breach of promise, it is 
 not error to allow the jury to consider per- 
 sonal pain and mortification caused to plaint- 
 iff. There is no substantial distinction be- 
 tween such damages, and injury to the feel- 
 ings and affections: Royal v. Smith, 40-615. 
 
 10. The jury may be allowed also to con- 
 sider pecuniary advantages which the mar- 
 riage would have secured to plaintiff : Ihid. 
 
 11.' Evidence; subsequent character: 
 Where the defendant does not seek to justify 
 on the ground of subsequent improper con- 
 duct, evidence as to whether plaintiff sub- 
 sequently kept company with men of im- 
 proper chaj-acter is not admissible : Ibid. 
 
 12. Declaration: Evidence of declarations 
 of plaintiff made after the commencement of 
 
 the suit that she would not marry defendant 
 except for his property, held not admissible : 
 Miller V. Hayes, 34-496. 
 
 BEIDGES. 
 
 See that title in Index. 
 
 CARRIERS. 
 
 I. Caeeiees op goods. 
 
 a. Contract; duty to receive and trans- 
 
 port. 
 
 b. Liability for loss or damage. 
 
 c. Delivery. 
 
 d. Compensation and lien. 
 II. Caeeiees of passengees. 
 
 a. WJio are passengers; regulations; 
 
 expulsion. 
 
 b. Liability. 
 
 c. Passenger's baggage. 
 
 As to matters specially relating to Rail- 
 EOABS, see that title. 
 
 I. Caeeiees of goods. 
 
 a. Contract; duty to receive and trans- 
 port. 
 
 1. Contract; authority of agent: A station 
 agent of a railroad company, having author- 
 ity to contract for the transportation of prop- 
 erty and to receive it for shipment, must be 
 deemed to possess the authority to contract 
 with reference to all the necessary and ordi- 
 nary details of the business: Wood v. Chi- 
 cago, M. & St. P. R. Co., 68-491. 
 
 2. Therefore held, that such agent had au- 
 thority to bind the company to furnish cars 
 on a specified day, and that it was not compe- 
 tent for the company to show that the agent 
 in such contract violated instructions of 
 \vhich the other party had no knowledge 
 (overruling Wood v. Chicago, 31. & St. P. R. 
 Co., 59-190): Ibid. 
 
 3. Acceptance: An undertaking by the 
 carrier to transport the property may be im- 
 plied from the circumstances under which it 
 comes into its possession, although such obli- 
 gation is not created by express agreement, 
 and its liability will be the same In one case 
 as it would have been in the other ; and hdd. 
 
CARRIERS, I, a. 
 
 215 
 
 Contract; duty to receive and transport. 
 
 that the acts of the conductor of a freight 
 train in receiving stock for transportation 
 and the subsequent consent to such acts by 
 the station agent of a railway company were 
 sufficient to render the company liable as 
 carriers for the stock received : Aihen v. Chi- 
 cago, B. & Q. M. Co.. 68-363. 
 
 4. Place of receiving: A railway may, as 
 a common carrier, by contract or under a 
 course or custom of business, be bound to re- 
 ceive or deliver goods at a place other than 
 the terminus of its road : Cobb v. Illinois 
 Cent. R. Co., 38-601. 
 
 5. Tender for shipinent: A tender of 
 freight to a common carrier may be made to 
 its officers or agents authorized to receive 
 such freight for transportation at a point 
 other than that at which the goods to be 
 transported are actually situated, provided 
 the goods offered for transportation are ready 
 at a place where the carrier may receive them 
 for that purpose : Ibid. 
 
 G. In an action against a common carrier 
 for refusing to receive goods tendered, it is 
 not necessary to show that the goods referred 
 to were tendered in one lot. The fact that 
 different persons acting for the plaintiff at 
 different dates offered separate lots of grain 
 to make up the quantity which the petition 
 charged was refused, Jield, not to show more 
 than one cause of action: Ibid. 
 
 7. Condition at time of acceptance by 
 carrier; evidence; bill of lading: A bill of 
 lading signed by the common carrier is not 
 conclusive evidence that the goods were in 
 good condition when received by such car- 
 rier: Carson v. Harris, 4 G. Gr., 516. 
 
 8. So held, where goods were received by 
 one carrier from a preceding carrier : Ibid. 
 
 9. External appearance: The external ap- 
 pearance of the boxps in which the goods are 
 packed is not conclusive as to their internal 
 condition: Ibid. 
 
 10. The good order which the carrier ad- 
 mits by his bill of lading that the goods are 
 in when received, refers only to the ex- 
 ternal condition and not to the state of the 
 goods as contained in packages not suitable 
 to be examined : West v. Steamboat Berlin, 
 3-.533. . * ' 
 
 11. Bnrden of proof: The fact that goods 
 are accepted by the common carrier as ap- 
 parently in good condition, or even that the 
 
 bill of lading recites that they are so re- 
 ceived, is not conclusive evidence of such 
 fact. The carrier may show that they were 
 in improper condition for shipment, and the 
 burden will then be upon the shipper to show 
 that the damage might have been avoided by 
 the exercise of reasonable skill and attention 
 on the part of the carrier: Mitchell v. United 
 States Ex. Co., 46-214. 
 
 12. A pnblic ferryman is liable in his ca- 
 pacity as a common carrier to an individual 
 who suffers damage from a neglect of his 
 duties, such as a failure to have his ferryboat 
 in a proper condition to furnish transportar 
 tion to those requiring it, without proper ex- 
 cuse, notwithstanding he may be also liable 
 to a penalty under a city ordinance for such 
 neglect: Slimmer v. Merry, 23-90. 
 
 13. Duties to the public: The business of a 
 carrier is such that the general public has an 
 interest therein which is properly the subject 
 of regulation by law, and those engaged in 
 such business are subject to restrictions and 
 limitations which do not apply to persons 
 engaged in other kinds of business : Bowlin 
 V. Lyon, 67-536. 
 
 14. Refusal to receive: Refusal of a rail- 
 way company to delay its train that stock 
 might be loaded on cars of the company for 
 shipment after the arrival of the train, held, 
 no ground of action, it appearing that the 
 stock might have been loaded before the 
 train arrived, and that it had not been placed 
 in the yards of the company or put under 
 the control of the company's agent : Frazier 
 V. Kansas City, St. J. & C. B. R. Co., 48- 
 571. 
 
 15. Damages for refusal: Where grain 
 purchased by a contractor for delivery under 
 a contract at a different point was refused by 
 the common carrier to which it was tendered 
 for transportation, held, that the measure of 
 damage for such refusal was the difference 
 betwefen the price which the contractor was 
 to receive for the grain under his contract 
 and the value at the place where it was 
 offered for transportation, less the charges of 
 transportation: Cobb v. Illinois Cent. R. Co., 
 38-601. 
 
 16. Where a common carrier having made 
 a contract to carry grain from C. B. to St. L. 
 afterwards failed or refused to receive such 
 grain for transportation, the market by the 
 
216 
 
 CARRIERS, I, a. 
 
 Contract ; duty to receive and transport. 
 
 proposed route being the only one open to 
 shippers at C. B., and it not appearing that 
 the violation of the contract by the caiTier 
 ■was wilful, and that the grain would not 
 have reached St. L. in safety if it had been ac- 
 cepted by the carrier, held, that the measure of 
 damages was the difEerence in the price of the 
 grain at C. B. and St. L. at the time it should 
 have reached its destination, less the agreed 
 price of carriage: Bridgmaii v. Steamboat 
 Emily, 18-509. 
 
 1 7. But, held, that if it were shown that 
 by the exercise of ordinary care the shipper 
 could have obtained other conveyance, then 
 the damage would be limited to the advance 
 in the price of transportation unless other 
 damage was shown : Ibid. 
 
 18. Insufficient facilities: It is error to 
 instmct the jury that a common carrier may 
 refuse goods for transportation if there is 
 such an accumulation that ordinary facilities 
 are not equal to its protection and disposition, 
 and that a carrier is not bound to procure 
 additional tracks, warehouses, etc., to accom- 
 modate the unforeseen contingency. What 
 means and exertions are within reasonable 
 requii'ements under the circumstances is a 
 question for the jury : Cobb v. Illinois Cent. 
 R. Co., 38-601. 
 
 19. It is for a carrier to know whether he 
 has competent means for transportation 
 and has them competently equipped, and 
 he cannot excuse himself from performance 
 by showing that his means are inadequate, 
 even though that fact is known to the ship- 
 per at the time of contract : West v. Steam/- 
 boat Berlin, 3-533. 
 
 20. Diligence in transportation: The car- 
 rier is bound to transport the goods accepted 
 within a reasonable time. In the absence of 
 any agreement, what is a reasonable time is to 
 be determined by circumstances and matters 
 connected with the business. The time for 
 final delivery will not be extended by reason 
 of the fact that the shipper is not under ob- 
 ligation to deliver the goods shipped to the 
 consignee until the expiration of a further 
 time: Cobb v. Illinois Cent. R. Co., 38-601. 
 
 21. Where property is delivered to the car- 
 rier under a contract for transportation, he 
 is entitled to notice of any particular circum- 
 stances requiring expedition in transporting 
 if special damages are to be recovered, but 
 
 this rule has no application to the case of the 
 refusal of the carrier to receive goods : Ibid. 
 
 22. In the absence of express undertaking 
 by the carrier to transport property to its des- 
 tination in a stated time, the law implies 
 an undertaking by it to deliver it there 
 within a reasonable time. But with refer- 
 ence to the time to be occupied in transport- 
 ing the property, the carrier is not held to the 
 extraordinary liability to which he is held 
 for its safety while it is in his custody, and 
 he may excuse delay in its delivery by proof 
 of misfortune or accident, although not in- 
 evitable or produced by act of God : Kinnich 
 V. Chicago, R. I. & P. R. Co., 69-665. 
 
 23. Perishable freight: It is error to 
 charge the jury that a common carrier ac- 
 cepting perishable freight for transportation 
 with a knowledge of the fact is bound to 
 transport it on the day of its receipt, even 
 though other freight, not of a perishable 
 nature, should be thereby delayed. The 
 knowledge of the perishable nature of the 
 freight may impose an obligation for the ex- 
 ercise of care and diligence of a high order 
 to expedite its transportation, but cannot 
 render the carrier absolutely and uncondi- 
 tionally liable to move the freight forward 
 on the day of receipt without regard to its 
 other obligations : Dixon v. Chicago, R. I. & 
 P. R. Co., 64-531. 
 
 24. Damages from delay in transporta- 
 tion : One of the undertakings of a common 
 carrier is that it will not expose the property 
 intrusted to its care to any improper hazards 
 or extraordinary perils, and if by its omis- 
 sion the property is exposed to perils which 
 ordinary foresight could have provided 
 against, the carrier is accountable for such 
 injury as may be occasioned by such ex- 
 posure : Hewett v. Chicago, B. & Q. R. Co., 
 63-611. 
 
 25. Where potatoes were shipped at a 
 season of the year when severe weather was 
 to be apprehended in the ordinary course of 
 nature in such climate, held, that this fact 
 imposed upon the carrier the duty of for- 
 warding the property to the point of its des- 
 tination with dispatch, and that if by negli- 
 gence in failing thus to forward the property 
 it was injured by freezing, which would 
 not have occurred but for the delay in trans- 
 portation, the carrier was liable : Ibid. 
 
CARRIERS, I, b. 
 
 21T 
 
 Liability for loss or damage. 
 
 26. Where a bill of lading provided for 
 delivery of goods " without delay," also that 
 the carrier was "not accountable for freez- 
 ing,'' and the goods were damaged by freez- 
 ing, resulting from failure to use reasonable 
 diligence in shipping, held, that the carrier 
 was liable: Whicker v. Steamboat Ewing,21- 
 240. 
 
 b. Liability for loss or damage. 
 
 27. General rule: A common carrier is 
 bound to deliver the goods according to its 
 undertaking, subject only to contingencies 
 arising from the act of God or public en- 
 emies: Angle v. Mississippi & M. R. Co., 
 18-555. 
 
 2S. The earner is held to be an insurer of 
 the safety of the property while he has it in 
 possession as a carrier. His undertaking for 
 care and safety of the property arises by im- 
 plication of law, out of the contract of car- 
 riage. The rule which holds him to be an 
 insurer of the property is founded upon con- 
 siderations of public policy, in that inasmuch 
 as the carrier ordinarily has the absolute pos- 
 session and control of the property while it is 
 in course of shipment, he lias the most 
 tempting opportunity for embezzlement or 
 fraudulent collusion with others. If, there- 
 fore, it is lost or destroyed while in his cus- 
 tody, the policy of the law will impose the 
 loss upon him : Hart v. Chicago & N. W. R. 
 Co., 69-485. 
 
 29. Where the property is delivered in a 
 damaged condition, the burden is on the 
 carrier to establish facts to relieve it from 
 liability for such damage, and the carrier is 
 not released from liability by reason of an 
 accident causing delay, for though such acci- 
 dent might offer an excuse for the delay, the 
 carrier would, notwithstanding, be bound to 
 use the highest degree of care during the de- 
 lay for the safety of the property : Kinniek 
 V. Chicago, R. I. & P. R. Co., 69-665. 
 
 30. Therefore, held, that damages, to a car- 
 load of hogs, appearing to have been caused 
 during a delay of the tiain, and which dam- 
 age might have been obviated by proper 
 care, rendered the carrier Uable : Ibid. 
 
 31. Where plaintiff shipped a cow eight 
 mouths with calf, and by reason of the neg- 
 ligence of the company an accident occurred, 
 occasioning the loss of such calf, held, that 
 
 failure of plaintiff to notify the company of 
 the condition of the cow was no defense 
 under the cii-cumstances : McCune v. Bur- 
 lington, C. R. & N. R. Co., 53-600. 
 
 32. There is no consideration of policy 
 which demands that the can-ier be held to 
 account to the owner for an injury occasioned 
 by the owner's own act, and it is immaterial 
 whether such act of the owner amounts 
 to negligence or not : Hart v. Chicago <& N. 
 W. R. Co., 69-485. 
 
 33. Therefore, held, that loss of the goods 
 by fire ignited by a lantern in the hands of 
 the owner's servant, taken by him into the 
 car in the service of the owner, was not a 
 loss for which the carrier was liable : Ibid. 
 
 34. The question whether, in shipping 
 property liable to injury by freezing, at a 
 time when danger from freezing is immi- 
 nent, the shipper was guilty of negligence, 
 and whether the precautions taken by him to 
 protect the property from injury from such 
 cause were sufiScient, are questions of fact 
 for the jury : Wood v. Chicago, M. & St. P. 
 R. Co., 68-491. 
 
 35. Negligence of the shipper, in overload- 
 ing cars of stock which are delivered to the 
 carrier for transportation, will not relieve the 
 carrier from liabUity: Kinniek v. Chicago, 
 R. I. & P. R. Co., 69-665. 
 
 36. A ferryman is a common carrier as 
 to goods received for transportation, even 
 though the property is accompanied by its 
 owner: Whitmore v. Bowman, 4 G. Gr., 148. 
 
 37. Livestock: The common law rule of 
 hability of the common cai'rier is applicable 
 to the transportation of stock so far as the 
 damage for which compensation is sought is 
 unconnected with the conduct, character or 
 propensity of the animals undertaken to be 
 carried: McCoy v. Keokuk & D. M. R. Co., 
 44-434. 
 
 38. There are dangers incident to the trans- 
 portation of stock which are created entuely 
 by the disposition and propensities of the 
 animals, and against which it is often impos- 
 sible for the carrier to make adequate pro- 
 vision. But the rule as to the liabilitj- of the 
 carrier is modified only as far as is rendered 
 necessary by the character of the property, 
 and when the injury results from the natural 
 propensities of the animals, which might 
 have been foreseen by defendant, the car- 
 
318 
 
 CARRIERS, I, 1). 
 
 Liability for loss or damage. 
 
 Tier is liable: Kinniek v. Chicago, R. I. & 
 P. R. Co., 69-665. 
 
 39. A railroad company, as a common car- 
 rier, is liable for injuries to stock in transit 
 directly resulting from a defective car: 
 McDaniel v. Chicago * N. W. R. Co., 24- 
 412. 
 
 40. The carrier would be liable for want of 
 ordinary care in the transportation of such 
 stock, even if the liability of common carrier 
 did not attach with reference to such prop- 
 erty: German v. Chicago & N. W. R. Co., 
 38-127. 
 
 41. Therefore, held, that a railway com- 
 pany was liable for damages occasioned by 
 taking cars of stock before they were ready 
 for shipment, and without any one being in 
 charge thereof, notwithstanding a stipulation 
 in the contract of shipment relieving them 
 from liability : Ibid. 
 
 42. Military control: If a railroad holds 
 itself out as a common carrier, the mere fact 
 that it is under control of , the military 
 authorities in time of war does not exonerate 
 it from transporting goods offered for trans- 
 portation if it has permission from the mili- 
 tary authorities to receive and transport such 
 goods: Cohh v. Illinois Cent. R. Co., 3&- 
 601. 
 
 43. Misdirection: A common carrier re- 
 ceiving goods known to be misdirected, and 
 transporting them from the place where re- 
 ceived, cannot claim to have acted merely as 
 warehouseman, and will be liable as common 
 carrier for their loss. The original negli- 
 gence of consignor in the misdii-ection will 
 not excuse subsequent negligence of the 
 company: O'Rourke v. Chicago, B. & Q. R. 
 Co., 44-526. 
 
 44. Violation of Sunday laws: The fact 
 that a carrier had transported and unloaded 
 its cars within the city of Chicago on Sunday 
 in violation of the laws of the state of Illi- 
 nois, held, not to be negligence rendering it 
 liable for loss of goods by fire occurring after 
 the unloading and storing of the goods: 
 Wilde V. Merchants' Despatch, etc., Co., 47- 
 273. 
 
 45. Bill of lading: The bill of lading 
 possesses the dual character of a receipt evi- 
 dencing the delivery of goods to the carrier's 
 possession, and a contract containing the 
 stipulations under which the transportation 
 
 is to be undertaken: Mulligan v. Illinois 
 Cent. R. Co., 36-181. 
 
 46. The acceptance of the bill of lading 
 without protest or objection on the part of the 
 shipper gives rise to a conclusive presumption 
 of assent to its terms, and if it does not ap- 
 pear that any fraud was practiced, or that 
 any mistake intervened, he cannot be re- 
 lieved from' such contract by reason of the 
 fact that he did not read the stipulations con- 
 tained in the bill : Ibid. ; Robinson v. Mer- 
 chants' Despatch, etc., Co., 45-470. 
 
 47. A bill of lading is both a receipt and a 
 contract, and in its character as a contract it 
 is no more open to explanation or alteration 
 by parol than other written contracts. The 
 fact that the name of the consignee is left 
 blank in the bill of lading will not authorize 
 the introduction of parol evidence to show 
 the agreement of the parties in that respect. 
 Such bill of lading shows on its face that it 
 is an obligation to convey the property to its 
 destination and deliver it to the consignor or 
 his assignee: Garden Grove Bank v. Hume- 
 ston&S. R. Co., 67-526. 
 
 48. An assignment of a bill of lading oper- 
 ates as a transfer of the property therein 
 described, and the carrier cannot, without 
 requiring the return of the first bill, issue a 
 second to another party, or deliver the prop- 
 erty to any other person than the one named 
 in the instrument. While the carrier may 
 deliver the property without the surrender 
 of the bill of lading, it does so at its peril : 
 Ibid. 
 
 49. Although the bill of lading is not a 
 negotiable instrument, it is assignable and 
 represents the property, and it is not subject, 
 in the hands of the assignee, to defenses or 
 counter-claims wliich the maker had against 
 the assignor before notice of the assign- 
 ment: Ibid. 
 
 50. Where a bill of lading was, by the car- 
 rier, issued to the creditor of the person de- 
 livering the property for shipment, with the 
 understanding, known to the agent of the 
 carrier, that the bill of lading was to be used 
 in raising money for the payment of the 
 claim due such creditor, and the bill, accom- 
 panied with a draft, was negotiated to a 
 bank, held, that the carrier was liable for 
 delivering the property to another person 
 than the holder of such bill of lading, al- 
 
CARRIERS, I, b. 
 
 219 
 
 Liability for loss or damage. 
 
 though such delivery was made in accord- 
 ance with the subsequent direction of the 
 person delivering the property : Ihid. 
 
 61. A bill of lading which constitutes 
 simply a memorandum of directions made by 
 the employees of a railway company cannot 
 be considered as a contract binding upon the 
 parties : State v. MoEvoy, 69-63. 
 
 52. Consignee bound by: The terms of a 
 bUl of lading accepted by the consignor at 
 the time of shipment will be binding upon 
 the consignee, whether he was aware of its 
 contents or not : Robinson v. Merchants' Des- 
 patch, etc., Co., 45-470. 
 
 53. Parol eYidence to vary: A bill of lad- 
 ing embodies a contract between the parties, 
 and is not to be varied by parol evidence as 
 to its terms: Hewett v. Chicago, B. <& Q. R. 
 Co., 63-611. 
 
 oi. Binding in another state: If the con- 
 tract contained in the bill of lading limiting 
 the carriers liability is valid in the state where 
 made, it will be binding upon the consignee 
 in another state, even though in the latter 
 such a contract is not valid : Robinson v. Mer- 
 <ihants^ Despatch, etc. , Co., 45-470. 
 
 55. Shipping receipt; delivery of bill of 
 ladin;; after shi|imeiit: Where consignor 
 delivered to the carrier certain goods, receiv- 
 ing a shipping receipt therefor, specifying 
 that the goods were " to be forwarded subject 
 to the conditions contained in the bill of lad- 
 ing of this company, " and notifying consignor 
 where the bill of lading might be obtained, 
 and the bill of lading was issued to the con- 
 signor after the goods were forwarded, and 
 contained an exemption of the earner from 
 liability for loss by fire, held, that the bill of 
 lading being in the same form which the car- 
 rier had been for some time in the habit of 
 employing, and there being no evidence of 
 bad faith, consignor and consignee were 
 bound by the terms thereof : Wilde v. Mer- 
 •chants' Despatch, etc., Co., 47-372. 
 
 56. But in such case, held, that if the prop- 
 erty was destroyed by fire before the bill of 
 lading was actually issued, and the carrier 
 knew of that fact, which was not known to 
 the shipper, the provisions in the bill of lad- 
 ing exempting the carrier from liability for 
 •destruction by fire would not be binding 
 in the absence of any showing of uniform 
 custom or usage known to and acquiesced in 
 
 by both parties, by virtue of which the ship- 
 ment was to be under such stipulations for 
 exemption : Wilde v. Merchants' Despatch, 
 etc., Co., 47-247. 
 
 57. Liability for neglig'ence, notwith- 
 standing the terms of bill of lading: The 
 stipulation of a bill of lading cannot relieve 
 the common carrier from loss where it oc- 
 curs through failure to perform the very con- 
 ditions and stipulations of the conti'act, un- 
 less it is shown by the carrier that even if such 
 stipulations had been performed the loss must 
 nevertheless have certainly occurred from 
 the same cause : Robinson v. Merchants' Des- 
 patch, etc., Co., 45-470. 
 
 58. Therefore, held, that a bill of lading 
 by a fast freight line containing in its head- 
 ing the words "through without transfer 
 in cars owned and controlled by the com- 
 pany,'' amounted to a contract that the 
 goods should be transported in that manner, 
 and the fact that at an intermediate point 
 they were taken from the cars, stored in a 
 warehouse to be reloaded, and were there 
 burned, would defeat the exemption of loss 
 by fire contained in the bill of lading : Ibid. 
 
 59. So held, also, where under similar cir- 
 cumstances goods being transported under 
 such a contract were burned during an un- 
 authorized transfer to other cars: Stewart v. 
 Merchants' Despatch, etc., Co., 47-229. 
 
 60. Connecting line: Where a carrier re- 
 ceives goods for transportation under a con- 
 tract limiting its liability to the extent of its 
 own line only, and exempting it from liabil- 
 ity for loss by fire, and the connecting car- 
 rier accepts the goods from such first caiTier, 
 the connecting carrier takes subject to the 
 common law liability and not under the con- 
 tract of the first carrier stipulating for ex- 
 emption: Bancroft v. Merchants' Despatch, 
 etc., Co., 47-262. 
 
 61. In the absence of any arrangement be- 
 tween connecting carriers the latter is not 
 liable for any damage the goods may have 
 sustained before coming into his charge: 
 Carson V. Harris, 4 G. Gr., 516. 
 
 62. Presumption as to throngh trans- 
 portation : When goods are delivered to a 
 carrier marked to a particular place beyond 
 the end of his route, but without any particu- 
 lar directions as to transportation and delivery 
 except as may be inferred from the marks 
 
220 
 
 CARRIERS, I, b. 
 
 Liability for loss or damage. 
 
 themselves, the transaction constitutes an 
 agreement to deliver at the place designated, 
 but parol evidence is admissible to show the 
 facts concerning the route and the usage of 
 the basinets, and knowledge of the consignor 
 thereof, for the purpose of showing that the 
 contract was to carry to the end of the line 
 only: Angle v. Mississippi & M. B. Co., 9- 
 A87 ; Mulligan v. Illinois Cent. E. Co., 36-181. 
 
 03. But by contract or stipulation in the 
 bill of lading the carrier may limit its lia- 
 bility for transportation to the terminus of 
 its own line: Mulligan v. Illinois Cent. B. 
 Co., 36-181. 
 
 Gi. Delivery to connecting carrier: 
 Where property is delivered to a common 
 carrier consigned to a point beyond the ter- 
 nainus of its line, he is bound to. deliver it at 
 that point within a reasonable time, or to 
 some other carrier to be forwarded to its 
 destination ; and this duty to deliver to the 
 connecting carrier can be performed only by 
 placing the property in the possession or under 
 the control of the other carrier, so that the 
 latter will thereby be rendered responsible 
 for its care and obliged to forward it to its 
 destination: Hewett v. Chicago, B. & Q. B. 
 Co., 63-611. 
 
 65. Where a car containing goods consigned 
 to a point on the line of a connecting rail- 
 road was placed in the yard from which cars 
 were usually taken by such connecting road, 
 but the connecting road refused to receive 
 the car on the ground that it was out of 
 repair, and the first carrier thereupon re- 
 paired the car and afterwards delivered it to 
 the connecting road, held, that the delivery 
 by the first carrier did not take place so as to 
 release it from liability until the repairs 
 were made : Ibid. 
 
 66. Storage: A common carrier receiving 
 goods from a connecting road for transporta- 
 tion, to be delivered to another connecting 
 carrier, is not relieved of responsibility by 
 storing the property, and while holding the 
 goods in warehouse its liability as carrier 
 continues : Bancroft v. Merchants' Despatch, 
 etc., Co., 47-263. 
 
 67. Not joint contractors : Where one com- 
 mon carrier furnished, upon request of a pre- 
 
 ceding connecting carrier, its freight charges 
 for a particular shipment from the beginning 
 of its line to the termination of the trans- 
 portation beyond its line, and the shipment 
 was accordingly made, held, that it did not 
 become the initial carrier between the com- 
 mencement of its line and the end of the 
 transportation, nor a joint contractor, nor a 
 partner with the carriers between the termi- 
 nus of its road and the end of the trans- 
 portation, and that an agreement between 
 such carrier and the succeeding carrier as to 
 rate of freight for the entire transportation 
 was not sufficient to make the two joint con- 
 tractors : Hill V. Burlington, C. B. & N. B. 
 Co., 60-196. 
 
 68. Bui'denof proof as to excuse: Having 
 received goods and undertaken their trans- 
 portation, if a loss occurs the burden is on 
 the common carrier to show circumstances 
 that excuse it from liability. There is a dis- 
 tinction in this respect between common car- 
 riers and other bailees : Angle v. Mississippi 
 & M. B. Co., 18-555 ; McCoy v. Keokuk & D. 
 M. B. Co., 44-434. 
 
 69. In an action against a common carrier 
 for injury to goods, the plaintiff makes out 
 a prima facie case by showing that he de- 
 livered them to the carrier in good order, and 
 when the carrier delivered them to the con- 
 signee they were in a damaged condition. 
 The carrier may then show that the injury 
 to the goods was caused by the act of God or 
 the public enemy, and the burden of proof 
 is upon him to show that fact: Winne v. 
 Illinois Cent. B. Co., 31-583. 
 
 70. Damages: Interest on the value of 
 goods lost or not delivered is a proper element 
 of damage: Cobb v. Illinois Cent. B. Co., 
 38-601. 
 
 71. Interest upon the damage recovered 
 should be computed from the time the goods 
 should have been delivered at their destina- 
 tion: Bdbinson v. Merchants' Despatch, etc., 
 Co., 45-470. 
 
 72. Statutory regulation as to contracts:' 
 Under provision set out in the foot-note, a 
 contract such as is therein proliibited is void, 
 whether it is with or without consideration : 
 Brush V. Sabula, A. & D. B. Co., 43-554. 
 
 ' Code, § 1338. No contract, receipt, rule, or regulation, shall exempt any corporation engaged in transport- 
 ing persons or property by railway from liability of a common carrier, or carrier of passengers, which 
 would exist had no contract, receipt, rule, or regulation, been made or entered into. 
 
CARRIERS, I, c. 
 
 221 
 
 Delivery. 
 
 73. Whether this section would be appli- 
 cable to a contract made in Iowa but to be 
 wholly performed in another state, qumre; 
 but it was held applicable to a contract to 
 transport cattle from Clinton, Iowa, to Chi- 
 cago, on the ground that it was to be partly 
 performed in Iowa : McDaniel v. Chicago & 
 N. W. R. Co., 34r412. 
 
 74. A company is not prohibited from 
 providing by contract that it shall not be 
 liable beyond the terminus of its road : Mul- 
 ligan V. Illinois Cent. R. Co., 36-181, 187. 
 
 75. The common law liability of a com- 
 mon carrier attaches to a carrier of live stock, 
 so far as the rule is not inapplicable by reason 
 of the peculiar character of the property. 
 Responsibility for the carriage of stock can- 
 not, therefore, be restricted by contract: 
 McCoy V. Keokuk & D. M. R. Co., 44-434. 
 
 76. A rule or custom limiting liability for 
 injury to all stock, including such as is of 
 especial value as being blooded, to the value 
 of common stock, is void: McCune v. Bur- 
 lington, C. R. & N. R. Co., 53-600. 
 
 7 7. This section does not render the carrier 
 liable for loss occurring by the act of the 
 owner : Hart v. Chicago & N. W. R. Co., 69- 
 485. 
 
 78. Whether a carrier, in the absence of 
 any statute restricting his powers, can, by 
 rule, regulation or contract, limit the amount 
 for which he will be liable in case of loss of 
 the property, qumre. But the statutory pro- 
 vision prohibits the making of such contract : 
 Ibid. 
 
 79. This statutory provision is applicable 
 to contracts for transportation from a point 
 within to a point without the state, and is 
 not unconstitutional in that respect : Ibid. 
 
 c. Delivery. 
 
 80. To the real owner: A common car- 
 rier may excuse a non-delivery, pursuant to 
 the bill of lading, by dflivering the goods 
 upon demand to the real owner : Brunswick 
 V. United States Ex. Co., 46-677. 
 
 81. But where goods are shipped to a con- 
 signee, and delivered by the carrier to one 
 who demands them under the claim that 
 they should have been shipped to him, such 
 demand not being in accordance with the 
 facts, the carrier will be liable ; Ibid. 
 
 82. Delivery to stranger: Where property 
 was delivered by a common carrier to a 
 stranger who assumed to act for the con- 
 signee, and who then turned the property 
 over to such consignee, and claiming to be 
 the consignor received the pay therefor, held, 
 that the loss must fall upon the consignee 
 and not upon the carrier : Ryder v. Burling- 
 ton, O. R. & N. R. Co., 51^60. 
 
 83. Where the bill of lading showed one 
 name as consignee and following it an entry, 
 " Notify " — -, naming another person, held, 
 that the second wm also a consignee, and a 
 receipt by such second person from the 
 carrier was proper : State v. McEvoy, 69-63. 
 
 84. Damaged condition : The consignee is 
 not bound to accept goods which are offered 
 in a damaged condition: Cobb v. Illinois 
 Cent. R. Co., 88-601. 
 
 85. Receipt as evidence of condition: An 
 instrument signed by the consignee acknowl- 
 edging the receipt of the goods in good condi- 
 tion ii prima facie evidence of that fact, but is 
 not conclusive, and its effect will turn upon 
 the circumstances of each particular case: 
 Porter v. Chicago & N. W. R. Co., 20-73. 
 
 86. Keceipt may be demanded: The re- 
 quirement by a common carrier that the person 
 to whom delivery is made shall give a receipt 
 for the goods showing them to have been re- 
 ceived in good condition is reasonable, and a 
 party refusing to execute such receipt cannot 
 recover possession of the goods : Skinner v. 
 Chicago & R. I. ,R. Co., 12-191, 
 
 87. Exaiiiinatiou ; replevin: The person 
 demanding the goods has a right to make an 
 examination of them to determine whether 
 they are in good condition before giving such 
 receipt, but this examination must be made 
 at the place of delivery and before the re- 
 moval of the property unless otherwise al- 
 lowed: Ibid. 
 
 88. Where goods are shipped by a common 
 carrier to be paid for by consignee on deliv- 
 ery, consignee has no right, in the absence of 
 consent by consignor, to open the package 
 and inspect the goods before accepting and 
 paying therefor, and he cannot maintain re- 
 plevin on the refusal of an agent to permit 
 such examination before delivery : Wiltse v. 
 Barnes, 46-310. 
 
 89. Responsible for failure to deliver; 
 custom : In the absence of the consignee of 
 
CAEEIERS, I, c, d. 
 
 Delivery. — Compensation and lien. 
 
 the property, or his failure to receive the 
 goods, the carrier should still make all rea- 
 sonable effort to place the goods in proper 
 hands, or, if that cannot be done, hold them 
 himself and thus end his responsibility as 
 carrier: Angle v. Mississippi & M. R. Co., 
 18-555. 
 
 90. If, by the regular and uniform course 
 of business of the carrier, goods not deliv- 
 ered are to be disposed of or kept in a par- 
 ticular manner, the carrier cannot terminate 
 his responsibility by lodging them with a 
 third person not authorized to receive them. 
 If delivered to a person as the agent of the 
 consignee, the carrier must know that he is 
 such agent or must have been misled by the 
 consignee or owner in order to excuse him- 
 self by such delivery : Ibid. 
 
 Oi. Custody as narelioiiseman: Where 
 goods are deposited after the termination of 
 the transportation in the warehouse of the 
 carrier in accordance with its published rules, 
 it is after that time liable as warehouseman 
 only and not as common carrier : Ibid. ; Por- 
 ter V. Chicago & N. W. R. Co., 20-73. 
 
 92. Contract of agent for storage: While 
 an agreement made by an agent as to the 
 storage of goods in the carrier's depot might 
 not be valid for want of a consideration, yet 
 a carrier might, nevertheless, be bound there- 
 by so as to prohibit the delivery of the goods 
 to a third person : Angle v. Mississippi <& M. 
 E. Co., 18-555. 
 
 93. An agent having general charge of the 
 business of a common carx-ier would prima 
 facie have the power to make an agreement 
 allowing goods to remain in the depot, but 
 he could not do so in the face of a rule for- 
 bidding the same, known to the other party : 
 Ibid. 
 
 94. A contract between the carrier and 
 a warehouseman for delivery by the former 
 to the latter of all grain shipped over the line 
 of the former, and not delivei-ed to the con- 
 signee, held, not to be a contract imposing 
 unlawful restraint upon the duties of the car- 
 rier: Richmond v. Dubuque & S. C. R. Co., 
 33-433, 493. 
 
 95. Carrier's liability terminates, when: 
 Where goods are unloaded by the carrier at 
 their destination and placed in a warehouse, 
 the liability of the common carrier ends and 
 that of warehouseman begins, and in the 
 
 latter relation there is no responsibility for 
 loss in the absence of negligence. But if 
 goods should arrive out of time, and the car- 
 rier fail to give notice to the consignee, his 
 liability as a common carrier might be ex- 
 tended: Francis v. Dubugue <& S. C. R. Co., 
 25-60. 
 
 96. The liability of a railway company as 
 common carrier of freight terminates, and 
 its responsibility as warehouseman com- 
 mences, upon the arrival of the goods at the 
 point of destination and their deposit there 
 in the warehouse of the company to await 
 the convenience of the consignee : Mohr v. 
 Chicago & N. W. R. Co., 40-579. 
 
 97. Want of notice to the consignee will 
 not render the company liable for subsequent 
 destruction of the goods without other negli- 
 gence, at least unless it can be shown that 
 the destruction was due to the want of such 
 notice, and that by reason of a custom' of the 
 company to give notice, the failure to give 
 it was negligence : Ibid. 
 
 d. Compensation and lien. 
 
 98. Presumed: Where goods are delivered 
 to a common carrier for transportation in 
 the usual course of business, the carrier be- 
 comes entitled to a reasonable compensation 
 without any agreement therefor, and may 
 recover on quantum meruit. In such case it 
 is not presumed that the transportation was 
 to be gratuitous or that the ordinary liability 
 of a common carrier did not ai-ise: Winne v. 
 Illinois Cent. R. Co., 31-588. 
 
 99. Guaranty of rates by connecting car- 
 rier: Where one carrier furnished, upon re- 
 quest, to a preceding carrier rates of trans- 
 portation over its own and subsequent lines 
 to the end of the transportation, held, that 
 such representation was personal as between 
 the two carriers and the second did not ren- 
 der itself liable thereby to the shipper for 
 overcharges of subsequent carriers: Hill v. 
 Burlington, C. R. & N. R. Co., 60-196. 
 
 100. Statutory regulation: interstate 
 commerce: Where a contract of shipment 
 from a point within to a point without the 
 state is entire, it is not affected by a statute 
 of the state in which the contract is made 
 regulating rates of transportation : Carton v. 
 Illinois Cent. B. Co., 59-148. 
 
CARRIERS, I, d; II, a. 
 
 'i%\ 
 
 Compensation and lien. — Passengers. 
 
 101. The regulation by a board of railroad 
 commissionei'S that rates of transportation 
 from a point witliout to a point within the 
 state shall conform to like distances within 
 the state is unconstitutional and interferes 
 with interstate commerce : Stata v. Chicago 
 <&N. W. B. Co., 70 . 
 
 102. Where a contract for transportation 
 by a cai-rier provided for transportation of 
 the goods from one point within the state to 
 another point also within the state, and the 
 rates of transportation were in excess of those 
 fixed by statute, held, that the excess of 
 charges paid might be recovered back, al- 
 though it was shown that the intention was 
 that the propei-ty should be delivered by the 
 carrier receiving it to a connecting carrier 
 and continuously transported to a point with- 
 out the state, and although the charge for 
 the entire transportation would have been a 
 reasonable one : Heiserman v. Burlington, C. 
 R. & N. R. Co., 63-733. 
 
 103. Recovery of excessive charges: 
 "Where the statute defines the charges which 
 can lawfully be made by a common carrier, 
 chai'ges in excess of those prescribed are un- 
 lawful, and may be recovered back in an ac- 
 tion for the excess. The amount fixed by 
 statute will be conclusively presumed to be 
 the limit of reasonable compensation : Ihid. 
 
 104. T he enactment of a statute imposing 
 penalties for excessive charges recoverable 
 by the party injured, and providing a punish- 
 ment against the agent of a carrier for exact- 
 ing and collecting excessive charges, does not 
 take away the right existing at common law 
 to recover money paid in excess of a reason- 
 ble charge : Ihid. 
 
 Further as to statutory regulation of rail- 
 way rates, etc., see Railways, VII. 
 
 105. Protest not necessary: In an action 
 to recover excessive charges paid, the plaint- 
 iff need not show objection or protest prior 
 to or at the time of making payment which 
 is in excess of a reasonable compensation: 
 Heiserman v. Burlington, C. R. & N. R. Co., 
 63-733. 
 
 lOG. Lien lost by delivery: The lien of a 
 common carrier for its charges is lost by the 
 delivery of the goods to the consignee: 
 Reineman v. C. C. & B. R. Co., 51-338. 
 
 107. delivery of a portion of the goods 
 covered by the lien may be made without 
 
 releasing the balance from the lien for the 
 entire charge of the transportation on the 
 whole: Chicago & 8. W, R. Co. v. North- 
 western U. P. Co., 38-377. 
 
 108. Lien for expenses: Where 'by the 
 bill of lading a common carrier was relieved 
 from liability for losses arising from dangers 
 of navigation, etc., and was C(Jmpelled to 
 incur expenses by way of salvage in re- 
 covering the property from a wreck occurring 
 without its fault, held, that its lien covered 
 its charges for salvage: Ibid. 
 
 II. Oaeeibrs of passengbes. 
 
 a. Who are passengers ; regulations ^ 
 expulsion. 
 
 109. Wlien rights commence: One who 
 
 enters the office or waiting-room provided 
 for passengers, and informs the agent of his 
 intention and desire to become a passenger, 
 and places himself under the direction of such 
 agent, becomes thereupon entitled to protec- 
 tion as a passenger : Allender v. Chicago, R. 
 I. & P. R. Co., 37-264. 
 
 110. A person intending to take passage 
 may become entitled to protection as a pas- 
 senger before entering the train or buying a 
 ticket: Green v. Milwaukee & St. P. R. Co., 
 41-410. 
 
 111. Payment of fare; free pass: Pay- 
 ment of fare is not essential to create the 
 relation of carrier and passenger. The carrier 
 is liable for negligence resulting in injury to 
 a passenger riding free : Rose v. Des Moines 
 Valley R. Co., 39-346. 
 
 112. After expirj:tion of ticlcet: A pas- 
 senger riding on a ticket which has by its 
 terms expired is not entitled to transporta- 
 tion, and the fact that he has been improp- 
 erly allowed to use the same ticket on several 
 occasions after its expiration will not estop 
 the carrier from refusing further to accept it :, 
 Sherman v. Chicago & N. W. R. Co., 40-45. 
 
 113. Fraudulent ticket: One who tenders 
 in payment of his fare a ticket issued to 
 another person at a reduced rate under the 
 express agreement that it shall not be trans- 
 ferable, such agreement and the name of the 
 person to whom the ticket was issued appear- 
 ing on the face of the ticket, does not become 
 entitled to the rights of a passenger. A per- 
 
224 
 
 CARRIERS, II, a. 
 
 Passengers. 
 
 son cannot claim transportation under a non- 
 transferable ticket issued for reduced rates 
 to another. The statutory provisions against 
 discriminaiion do not change the rule in this 
 respect: Way v. Chicago, R. I. & P. R. Co., 
 64-48. 
 
 114. Purchase of ticket: The regulation 
 that a passenger shall pay full rate upon fail- 
 ure to procure and present a ticket which he 
 might have purchased from the agent at a 
 reduced rate is not unreasonable: State v. 
 Chovin, 7-204. 
 
 115. The carrier may make a regulalfcu 
 requiring passengers to procure a, ticket be- 
 fore taking passage in a caboose car attached 
 to a freight train, and may eject from the 
 car, in a proper place and manner, any per- 
 son failing to comply with such regulation : 
 Law V. Illinois Cent. R. Co., 32-534. 
 
 IIG. By statute (15 G. A., ch. 68, §2; 
 McClain's Ann. Stat., 863) a railway com- 
 pany is allowed to collect an additional sum 
 over the regular rate of fare from passengers 
 who fail to purchase tickets, and the reason- 
 ableness of such regulation is not a question 
 for the jury : Hoffbauer v. Davenport & N. 
 W. R. Co., 52-342. 
 
 117. In an action to recover for being 
 ejected from a train for want of a ticket, 
 where the plaintiff claimed that he was not 
 able to procure such ticket on account of the 
 failure of the oompa'ny to have its ticket 
 olBce open before the starting of the train, 
 held, that it was proper to allow defendant 
 to introduce evidence of the character of the 
 station and whether the facilities extended 
 to the traveling public to purchase tickets 
 were such as required for the convenience of 
 the public. While it is required that the 
 office should be open for business a suiHcient 
 time before the departure of the train, in 
 order to enable passengers to procure their 
 tickets, receive and count their change, if 
 any, and prepare to board the train, without 
 unnecessary interference with each other, 
 yet it is not required that the office shall re- 
 main open up to the instant the train moves 
 off. The question is, might the passenger 
 have procured a ticket within a reasonable 
 time before the departure, and not up to the 
 very moment of departure : Everett v. Chi- 
 cago, R. I. & P. R. Co., 69-15. 
 
 118. The fact that a station is an unfit 
 
 place for passengers to remain in waiting 
 for the trains cannot be shown in an action 
 to recover damages for being ejected from a 
 train for not procuring a ticket, that reason 
 not having been alleged to the conductor as 
 a reason for not having a ticket : Ibid. 
 
 1 19. The failure of the company to sell a 
 ticket to a passenger before entering the cars 
 cannot be made a ground for recovery of 
 damages where the passenger afterward 
 tenders with his fare to the conductor the 
 extra amount required on account of not 
 having a ticket : Curl v. Chicago, R. I. & P. 
 R. Co., 63-417. 
 
 120. Misl.ike in amount of fare; eject- 
 ment: Where, by mistake of the conductor 
 in making change, the amount paid is less 
 than sufficient to pay for the transportation 
 of the passenger to his destination, the con- 
 ductor can properly require him. to correct 
 such mistake, and upon failure to do so, eject 
 him upon reaching the point to which the 
 amount paid entitles him to carriage : McCar- 
 thy V. Chicago, R. I. & P. R. Co., 41-433. 
 
 121. Refusal to pay; expulsion: A pas- 
 senger who takes his seat in the carrier's con- 
 veyance and states his destination, but refuses 
 to pay the fare rightfully demanded, becomes 
 a trespasser and is no longer entitled to the 
 z'ights and privileges of a passenger and may 
 be rightfully ejected : Stone v. Chicago & N. 
 W. R. Co., 47-83. 
 
 122. After being thus rightfully expelled 
 the passenger cannot again enter the same 
 conveyance to be cai-ried to the same desti- 
 nation originally given, upon payment of 
 fare from the point of expulsion to such des- 
 tination, and the fact that he procures from 
 the ticket agent a ticket to such destination 
 win not entitle him to passage on the con- 
 veyance from which he has been expelled : 
 Ibid. 
 
 123. Where payment of fare has been de- 
 manded of a passenger and refused, he may 
 be ejected, although he subsequently tenders 
 the amount demanded. After payment is 
 refused all obligation to carry the passenger 
 on that train ceases : Hoffbauer v. Davenport 
 &N. W. R. Co., 53-342. 
 
 124. A passenger is entitled to a reasonable 
 time after his fare is demanded by the con- 
 ductor in which to tender it, and if tendered 
 within such reasonable time the conductor 
 
CARRIERS, II, a. 
 
 225 
 
 Passengers. 
 
 cannot refuse it and eject the passenger from 
 the train for non-payment, although he may 
 have ah-eady rung the bell for the purpose of 
 stopping the train. The question as to what 
 is a reasonable time is for the jury: Curl 
 r. Chicago, R. I. & P. R. Co., 63-417. 
 
 125. The threat of a conductor to eject 
 a passenger for refusal to pay the additional 
 amount required by reason of not having pre- 
 viously procured a ticket, whereby the pas- 
 senger is induced to pay the amount de- 
 manded, wiU not be sufficient ground for a 
 recovery by such passenger of punitive dam- 
 ages for injury to his feelings ; and held, in a 
 particular case, that the evidence did not 
 show malice or wantonness on the part of 
 conductor : Paine v. Chicago, R. I. & P. R. 
 Co., 45-569. 
 
 12G. The fact that the conductor accepts 
 from the passenger the regular fare for the 
 distance to be traveled, at the same time de- 
 manding the additional amovmt for not hav- 
 ing procured a ticket, will not render ejection 
 for non-payment of such amount illegal: 
 Hoffbauer v. Davenport & N. W. R. Co., 52- 
 343. 
 
 127. Place of ojectment: While reason- 
 able and ordinary care must be employed in 
 ejecting a passenger, it is not necessary that 
 it be done at a station or public crossing: 
 Brown v. Chicago, R. I. & P. R. Co., 51- 
 235; Everett v. Chicago, R. I. & P. R. Co., 
 69-15. 
 
 128. Damages for ejectment: Where the 
 conductor, without wantonness or unneces- 
 sary violence or oppression, ejected plaintiff 
 from his train in pursuance of what he sup- 
 posed to be a vahd rule of l^he company, held, 
 that exemplary damages, or damages com- 
 pensatory of injured feelings, mental an- 
 guish, etc., were not allowable: Fitzgerald 
 V. Chicago, R. I. & P. R. Co., 50-79. 
 
 129. Kegulations: A carrier has power to 
 make reasonable regulations for the guid- 
 ance of its agents in the discharge of their 
 duties and for the conduct of passengers in 
 its charge, and all regulations will be deemed 
 reasonable which are suitable to enable the 
 company to perform the duties it under- 
 takes, and also such as are necessary and 
 proper to insure the safety and promote the 
 comfort of passengers: State v. Ohovin 7- 
 304. 
 
 Vol. 1 — 15 
 
 130. Stopping over: When a passenger 
 having a ticket takes his seat in a particular 
 train going through to his destination, the 
 contract of transportation to such destina- 
 tion is an entirety, and neither party can re- 
 quire the other to perform it in parts. The 
 passenger cannot, without the carrier's con- 
 sent, leave that train and take another and 
 be transported under the original payment of 
 fare: Stone, v. Chicago & N. W. R. Co., 
 47-82. 
 
 131. Persons of color: The carrier has no 
 authority to establish and enforce a regula- 
 tion depriving a person of color of the rights 
 accorded to white persons upon its convey- 
 ance: Cogerv. Northwestern U. Packet Co., 
 37-145. 
 
 132. Removal of passenger from station: 
 A railwaj' company will not be liable for 
 damages in causing the removal by a police- 
 man from its depot of a woman of bad char- 
 acter who has gained admission to the ladies' 
 waiting-room at night and at a time long be- 
 fore the train which she claims to intend to 
 take is due : Beeson v. Chicago, R. I. & P. 
 R. Co., 63-173. 
 
 133. Where plaintiff, after arriving on de- 
 fendant's train, left the depot and became 
 intoxicated and returned, not for the pur- 
 pose of awaiting a train on that road, held, 
 that he was properly ejected. The waiting- 
 room is for the accommodation of incoming 
 and outgoing passengers, and not a place of 
 resort for the general public: Johnson v.. 
 Chicago, R. I. & P. R. Co. , 51-25 ; S. C. 58-848. 
 
 134. Damages for unlawful removal: 
 Where the removal of a person from the de- 
 pot is affected without an assault and no 
 special damage is shown, the recovery for 
 such act, even if wrongful, would be limited 
 to nominal damages: Beeson v. Chicago, R. 
 I. <&P. R. Co., 62-173. 
 
 135. Removal of passenger from car: In 
 an action against a railway company for 
 damages caused to plaintiff by being removed 
 from one car to another while the train was 
 in motion, held, that whether there was im- 
 proper conduct on the part of plaintiff so as 
 to justify the conductor in removing him, 
 and whether there was any unnecessary force 
 used, or whether it was done at an improper 
 time or in an improper manner, were ques- 
 tions of fact for the jury, and that the fact 
 
226 
 
 CARRIEES, II, b. 
 
 Liability as to passengers. 
 
 that the train was going at the rate of twenty 
 miles an hour did not necessarily render the 
 removal of the plaintiff improper : Marquette 
 V. Chicago & N. W. R. Co., 33-562. 
 
 b. Liability. 
 
 136. What care required: Can-iers of 
 passengers for hire are bound to exert the 
 highest skill and prudence and the utmost 
 care and diligence in conveying their pas- 
 sengers, and are of course responsible for the 
 slightest negligence : Sales v. Western Stage 
 Co., 4-547; Russ v. Steamboat War Eagle. 
 14-363 , Frink v. Ooe, 4 G-. Gr., 555 ; Moore v. 
 Des Moines & Ft. D. R. Co., 69-491. 
 
 137. It is the duty of carriers of passengers 
 to exercise extraordinary care : Raymond v. 
 Burlington, C. R. & N. R. Co., 65-153; 
 Sandham v. Chicago, R. I. <& P. R. Co., 
 38-88. 
 
 138. Stage-coaches and hacks: Therefore, 
 lield, that stage-coach proprietors were not 
 only bound to furnish good coaches, harness, 
 and horses, and careful drivers, but to keep 
 such coaches, etc., in good repair and to see 
 that their drivers drive with the utmost skill 
 and diligence: Sales v. Western Stage Co., 
 4-547. 
 
 139. Proprietors of hacks and stages are 
 held to the same degree of care as other car- 
 riers of passengers, that is, the utmost skill 
 :uid care which prudent men are accustomed 
 to use under similar circumstances : Bonce i: 
 Dubuque St. R. Co., 53-278. 
 
 140. A railway company is required to 
 use higher care in regard to safety of its pas- 
 sengers than it is to avoid injury to stock 
 upon its track: Sandham v. Cliicago, R. I. 
 <& P. R. Co., 38-88. 
 
 141. The duty of a railway company as 
 carrier of passengers is to so manage its traia 
 as not to expose such passengers to any dan- 
 ger which human foresight and care could 
 apprehend and provide against. When such 
 daager is reasonably to be expected to arise 
 under the circumstances, it is bound to make 
 provision against all danger which human 
 oversight might expect: Kellow v. Central 
 JowaR. Co., 68-470. 
 
 142. Duty arising from contract: The 
 diity of a carrier to make provision for the 
 •safety of its passengers grows out of the con- 
 
 tract between them, and if he fails through 
 neglijgence to provide for that danger and 
 the passenger suffers an injury in consequence 
 thereof, the carrier is held liable on the 
 ground that his negligence constitutes a 
 breach of his undertaking : Ibid. 
 
 143. Negligence as to platforms, waiting- 
 rooms, etc. : The general rule is that railroad 
 companies are bound to keep in a safe con- 
 dition all portions of their platforms and ap- 
 proaches thereto, to which the public do oi- 
 would naturally resort, and all portions of 
 their grounds reasonably near to the plat- 
 forms where passengers would naturally be 
 likely to go : McDonald v. Chicago & N. W. 
 R. Co., 26-124. 
 
 144. In a particular case, held, that tlie 
 jury should have been directed to ascertain 
 from the evidence whether the company had 
 designated or set apart the platform as the 
 place where it required all passengers to enter 
 the, cars, and if so, and it was known to 
 plaintiff, and in disregard of such require- 
 ment and in advance of time, and without 
 justification for so doing, plaintiff sought to 
 enter at another place and met with injury 
 in so doing, the company was not liable as 
 common carrier : Ibid. 
 
 145. In an action for injury received while 
 attempting to get on board a train at a sta- 
 tion, by reason of defective steps, the ques- 
 tion being whether plaintiffs attempted to do 
 so by an unused, dangerous and unfrequented 
 way, it was held competent to show that 
 they did not, by the fact that such steps were 
 a part of the platform; were in a direct 
 route to the cars; and that they were used, 
 among other things, for the purpose of going 
 to and from another depot : Ihid. 
 
 146. There being a common law duty on 
 railroad companies to provide reasonable 
 accommodations at stations for passengers, 
 it is proper to show in evidence, in an action 
 for damages for injuries sustained while 
 going to the train at an unusual time and 
 place, that the waiting-room was so filled 
 with tobacco smoke as to make it offensive 
 to remain there : Ibid. 
 
 147. While in an action against a railroad 
 company for injury to a passenger sustained 
 while alighting, evidence is admissible to 
 show that the platform at which the passen- 
 ger is alighting is too high or too low for 
 
CARRIERS, II, b. 
 
 227 
 
 Liability as to passengers. 
 
 safety, yet evidence is not admissible to show 
 that such platform is higher or lower than 
 another platform: Nichols v. Dubuque & D. 
 R. Co., 68-732. 
 
 1 48. If there is a customary time for trains 
 to stop at stations of a particular size, that 
 fact may be shown in an action for personal 
 injuries to a passenger in alighting, in order 
 to show that the stoppage of the train was of 
 customary duration ; but it is not competent 
 to allow a witness to state the usual length 
 of time which a passenger train stops at tlie 
 station in question : Ibid. 
 
 149. Negligence in failing to protect 
 against wrongful act: Although the negli- 
 gence of another may be the proximate cause 
 of the injury, yet if the carrier has exposed 
 the passenger to such danger, which might 
 have been anticipated, and at the same time 
 has taken no precaution to protect him 
 therefrom, the carrier has thereby violated 
 his undertaking with the passenger, and if the 
 latter suffers injui-y in consequence of this 
 violation the carrier is liable, even though 
 the immediate cause of the injury was the 
 wrongful or neglectful act of the other : Kel- 
 low V. Central Iowa R.Co., 68-470. 
 
 160. Directions to passenger: A carrier 
 is liable for the consequences of negligence in 
 giving directions to passengers as to the mode 
 of entering its cars : AUender v. Chicago, R. 
 I. & P. R. Co., 43-276. 
 
 151. The inexperience of the passenger 
 and the difficulty attending the reaching of 
 the car may be taken into consideration in 
 determining whether it was the duty of the 
 agent of the carrier to assist the passen- 
 ger in getting upon a car: AUende7'v. Chi- 
 cago, R. I. & P. R. Co., 87-264. 
 
 162. Not liable to person wrongfully 
 riding: The extraordinary care required of a 
 carrier of passengers toward the passenger 
 does not exist as to a person who attempts 
 to secure passage under a non-transferable 
 ticket issued to another person : Way v. Chi- 
 cago, R. I. & P. R. Co., 64r-48. 
 
 153. Evidence ; burden of proof: An ac- 
 cident, such as the upsetting of a stage- 
 coach causing injury to a passenger is prima 
 facie evidence of negUgence: Frink v. Coe, 
 4 G. Gr., 555. 
 
 154. Where a dangerous accident occurs 
 which, under ordinary circumstances, would 
 
 not have happened had the carrier and its 
 employees exercised due care, prudence and 
 watchfulness, proof of such accident, with ils 
 attendant circumstances, raises a presump- 
 tion of negligence, and the burden is then 
 cast upon the carrier to rebut this presump- 
 tion. To this end the carrier must show that 
 in the selection and operation of the machin- 
 ery which caused or contributed to the acci- 
 dent it used due care, skill, prudence and 
 watchfulness. It is eiTOr in such case to in- 
 struct the jury that it devolves upon the car- 
 rier to satisf'actorily explain the accident, and 
 in the absence of such explanation negligence 
 would be presumed, notwithstanding proof 
 of due care, etc. : Tattle v. Chicago, R. I. d: 
 P. R. Co., 48-236. And see Evidence §§ 874-7. 
 
 155. Testimony as to the condition of the 
 track near the place of the accident should 
 be admitted : Allison v. Chicago & N. W. R. 
 Co., 42-274. 
 
 156. Pleading: In an action by a passen- 
 ger to recover for personal injuries caused by 
 the derailment of a car, it is sufficient, under 
 the Iowa statute, if the petition state enough 
 to raise a presumption of negligence on the 
 part of the company. It need not state all 
 the facts or acts showing want of care on the 
 part of the railroad company : Clark v. Chi- 
 cago, B. & Q. R. Co., 4 McCrary, 360. 
 
 157. Contract limiting liability: A cai- 
 rier of passengers cannot, by notice or spe- 
 cial contract, restrict, limit, or avoid its com- 
 mon law liability for negligence: Rose v. 
 De.i Moines Valley R. Co., 39-246. 
 
 158. Contributory negligence; riding 
 in unsafe place: Where a passenger, being 
 asleep when the train stopped at his destina- 
 tion, was awakened by a brakeman and di- 
 rected to get off quickly, but on coming to 
 the door found the train in such rapid mo- 
 tion that it was dangerous to alight, and 
 wliile standing on the steps of the platform, 
 without attempting to step off, was thrown 
 off by the jerking of the train, no negligence 
 on the part of the carrier being shown, held, 
 that the passenger was guilty of contributory 
 negligence by reason of remaining in an un- 
 safe position and could not recover : Lindsey 
 V. Chicago, R. I. & P. R. Co., 64-407. 
 
 159. Where a passenger, with knowledge 
 of the regulation of the company that pas- 
 sengers were not allowed to stand on the 
 
328 
 
 CAERIEES, II, b. 
 
 Liability as to passengers. 
 
 platform, left his seat before the traia 
 reached the station and stood upon the step 
 of the platfoiTa awaiting an opportunity to 
 alight as soon as the train should stop, and 
 was by a sudden jerk of the train caused to 
 fall and injure himself, held, that he was 
 guilty of negligence: Bon v. Railway Pcts- 
 senger Assurance Co., 56-664. 
 
 160. A person riding in a place of known 
 danger instead of in the portion of the train 
 set apart for passengers and others not en- 
 gaged in the operation of the train cannot 
 recover for injuries which would not have 
 resulted had he been in the proper place: 
 Doggett v. Illinois Cent. JR. Co. , 34-284. 
 
 1(!1. While the train is not in motion the 
 platform cannot be considered a place of dan- 
 ger : Walter v. Chicago, D. &M. R. Co., 39-33. 
 
 162. Getting on or off moving trains: 
 The rule that leaving a train after it is in 
 motion constitutes contributory negligence 
 cannot be applied to a case where the pas- 
 senger is already in the act of descending the 
 steps of the car, when the train starts : Nich- 
 ols V. Dubuque & D. R. Co., 68-782. 
 
 163. Where persons are in peril and 
 feel obliged to act upon the spur of the mo- 
 ment, they are not necessarily to be charged 
 with negligence if they do not do the right 
 thing: Ihid. 
 
 164. While it might not be contributory 
 negligence under all circumstances for a 
 passenger to attempt to get upon a moving 
 train, yet held, under the circumstances of a 
 particular case, the attempt of a passenger 
 to climb upon a freight car while holding a 
 lantern and stick in his hand, while the train 
 was going at such rate of speed that he 
 feared that he would not be able to get upon 
 the caboose when it reached him, constituted 
 contributory negligence: MeCorhle v. Chi- 
 *cago, R. I. & P. R. Co., 61-555. 
 
 165. Where a passenger, desiring to go 
 upon the caboose of a freight train, was al- 
 lowed sufficient time for that purpose by the 
 persons in charge of the train, but, fearing 
 that he would not reach the caboose in time, 
 got upon a freight-car and was thrown there- 
 from and injured, by reason of the car being 
 thrown off the track, held, that he was guilty 
 of such contributory negligence as would de- 
 feat his recovery for such injury : Player v. 
 Burlington, C. R. & N. R. Co., 63-723. 
 
 166. Time and place of entering car: A 
 
 railroad company may make reasonable rules 
 and regulations respecting the time, mode 
 and place of entering cars, and these, when 
 known to the passenger, he is bound to con- 
 form to. In this case, held, that if plaintiffs 
 attempted to enter the cars at a place which 
 they knew, or, from the nature of the cir- 
 cumstances surrounding them, ought to have 
 known, was not designed for receiving pas- 
 sengers, and at which the company did not 
 allow passengers to enter, the company 
 would not be liable as common carriers upon 
 their contract for an injury happening in the 
 prosecution of such an attempt: McDonald 
 V. Chicago &N.W. R. Co., a6-12i. 
 
 167. An attempt by a passenger desiring 
 to reach another train in a dark night to 
 crawl under a freight train with locomotive 
 attached is necessarily contributory negli- 
 gence sufficient to defeat his recovery for in- 
 juries resulting from the moving of the 
 freight train without proper signal: Smith 
 V. Chicago, R. I. & P. R. Co., 55-38. 
 
 168. The fact that an agent of the com- 
 pany makes statements calculated to throw 
 the passenger off his guard as to danger may 
 relieve the passenger from responsibility for 
 want of vigilance, which might otherwise be 
 imputed as contributory negligence ; but in a 
 particular case, held, that the passenger was 
 not exonerated from exercising due care by 
 reason of the genei-al statement of the agent 
 that there would be no danger or trouble in 
 going to or upon the car in accordance with 
 directions: Allenderv. Chicago, R. I. <&P. R. 
 Co., 37-364. 
 
 169. Injuries to patisengcr from fellow- 
 passenger: If a carrier has no reasonable 
 ground to believe that an assault upon a 
 passenger by another passenger will be made, 
 such carrier is not liable, even though the 
 assault and the injury resulting therefrom 
 might have been prevented by the presence 
 of a sufficient number of employees upon, 
 the train : Felton v. Chicago, R. I. & P. R. 
 Co., 69-577. 
 
 170. So held, where a passenger riding 
 with other excursionists in a flat-car, the 
 sides of which were not protected by a raUing, 
 was thrown from the car and killed by rea- 
 son of an assault made upon him by another 
 passenger: Ibid. 
 
CARRIERS, II, c. 
 
 229 
 
 Passenger's baggage. 
 
 171. Action for breach of contract caus- 
 ing death: Whether, where the death of the 
 pas^nger is caused by negUgence of the 
 carrier, a right of action for breach of the con- 
 tract arises in behalf of his estate, qucere; 
 but at least it must appear, to support such an 
 action, that at the time of the injury the con- 
 tract was still subsisting : Hyde v. Wabash, 
 St. L. &P. R. Co., 61-441. 
 
 Further as to actions for injiu-ies causing 
 death, see Actions, §§ 78-85. 
 
 c. Passenger's iaggage. 
 
 172. Delivery; custom: Delivery of bag- 
 gage may be made at the proper place of re- 
 ceiving it under the express assent or au- 
 thority of the carrier without notice to its 
 employees. Assent may be presumed from 
 the course of business or custom of the car- 
 rier: Green v. Milwaukee & St. P. R. Co., 
 38-100. 
 
 173. The question whether the evidence 
 establishes a course of business and custom 
 to the effect that the delivery of baggage at 
 the station-house without notice to the agents 
 of the company is regarded by the company 
 as a delivery to its servants, or whether under 
 this custom there is a sufdcient dehvery, 
 should be left to the jury: Green v. Mil- 
 waukee & St. P. R. Co., 41-410. 
 
 174. When liability commences: It is 
 error, in an action for loss of baggage occur- 
 ring after delivery to the carrier and before 
 transportation has commenced, to instruct 
 the jury on the theory that the carrier as- 
 sumes no duties as respecting the baggage of 
 one intending to become a passenger so long 
 as he is in such position as to withdraw 
 his baggage and conclude not to take passage. 
 A person may be entitled to be protected as 
 a passenger without purchasing a ticket or 
 entering the car, and he may also, under sim- 
 ilar cu-cumstances, requhre that his baggage 
 be cared for as the baggage of a passenger, 
 and the liability of the carrier will be the 
 same: Ibid. 
 
 1 75. Where it appeared that the agent of 
 the earner was advised that plaintiff intended 
 to become a passenger on the morning train 
 and her trunk was sent to the depot on the 
 evening before, properly marked, as was cus- 
 tomary in such cases, and the trunk was 
 
 locked up in the defendant's baggage room, 
 held, that the liability of the defendant as a 
 common carrier with reference to such bag- 
 gage attached : Ibid. 
 
 176. Liability after arrival at destina- 
 tion : Plaintiff purchased a ticket on defend- 
 ant's railroad from O. to F. Being unable 
 then to get his trunk he gave a check for it 
 to defendant's agent, who agreed to forward 
 it by next train. Plaintiff after arrival at F. 
 appUed each day for his trunk, which had 
 not come, until the third da^^, when it was 
 there, but had been broken open and its con- 
 tents stolen in the night while locked in de- 
 fendant's common passenger room instead of 
 the ordinary baggage room. Held: 
 
 (1) Whether defendant was to be held to the 
 diligence of a common carrier or that of a 
 warehouseman, quaere; but even if as ware- 
 houseman, it was liable for the value of the 
 contents stolen. 
 
 (2) That plaintiff was entitled to a reason- 
 able time after the arrival of the trunk 
 within which to receive it. 
 
 (3) That the authority of defendant's agent 
 to agree to forward the trunk was immaterial, 
 since the company accepted and undertook 
 to convey and deliver it. 
 
 (4) That upon plaintiff 's paying his fare, de- 
 fendant, by undertaking as a part of the con- 
 sideration therefor and pursuant to its agent's 
 agreement to deliver the baggage by a subse- 
 quent train, assumed the ordinary liabilities 
 existing when the passenger goes on the same 
 train: Warner v. Burlington & M. R. R., 
 23-166. 
 
 177. Where trunks were left in the freight 
 room to be called for by the owner and 
 checked as baggage, held, that the company 
 was only liable for them as gratuitous baUeo 
 for safe keeping and not responsible for theft 
 without its fault : Van Gilder v. Chicago & 
 N. W. R. Co., 44-548. 
 
 1 78. The liability of a railway corporation 
 as a carrier of baggage terminates as such 
 upon the expiration of such reasonable time, 
 after arriving at the place of destination, as 
 will enable the traveler to receive and take 
 charge of the same : Mote v, Chicago & N. 
 W. R. Co., 27-23. 
 
 179. When baggage is unclaimed within 
 the proper time after reaching its destination, 
 it is the duty of the cai-rier to store it in a 
 
2ao 
 
 CERTIORARI, I. 
 
 When the writ will be granted. 
 
 X)roper and secure place until called for or 
 disposed of as required by law, and when so 
 stored, the carrier becomes liable as a ware- 
 houseman or mere bailee in deposit, and as 
 such is held to common and reasonable care 
 and diligence : Ibid. 
 
 180. Statutory provision: Code, §? 2183, 
 gives a remedy against a carrier of passengers 
 for damages to baggage, and for detention 
 caused thereby. It does not authorize a re- 
 covery on account of detention of baggage 
 or failure to deliver the same, nor for de- 
 tention of the traveler, unless it be on account 
 of damages done ts baggage: Anderson v. 
 Toledo, W. & W. R. Co., 33-86. 
 
 181. Action by joint owners: Where a 
 Ijcx, the joint property of two passengers, 
 and containing personal property belonging 
 to each, was received to be transported for 
 them jointly, held, that they might bring a 
 joint action for the loss thereof : Anderson v. 
 Wabash, St. L. & P. R. Co., 65-1311* 
 
 CATTLE. 
 
 See Animals. 
 
 CERTIORARI. 
 
 I. When the writ will be granted. 
 II. Parties. 
 III. Proceditbe. 
 
 I. When the wkit will be granted. 
 
 1. Common law writ: The writ of certio- 
 rari is a common law. writ which may. be 
 issued by courts having a common law juris- 
 diction: Helmidhv. Johnson, Mor., 89. 
 
 3. Discretion of hi^Iier court: In an 
 action of certiorari, the result of which is to 
 annul the action of an inferior tribunal, 
 board or officer, it is peculiarly the duty of 
 the court to scrutinize the petition and inter- 
 fere only in a case properly made, and even 
 then the court may exercise a proper measure 
 of discretion, and in general should exercise 
 its power sparingly. It is not bound to grant 
 a writ on merely technical grounds, and 
 where no prejudice is shown : Woodworth v. 
 Oibbs, 61-398; Johnson v. Supervisors, 61-89. 
 
 3. Certiorari and appeal: The writ of 
 certiorari Is never used to correct a mere 
 
 error, but only to test the jurisdiction of a 
 tribunal and the legality of its action : State 
 V. Roney, 87-30. 
 
 4. When a party has the right of appeal he 
 cannot proceed by certiorari: Ransom v. 
 Cummins, 66-137 ; State v. Schmidtz, 65-556. 
 
 5. Where an inferior court illegally exer- 
 cises its jurisdiction, and there is no adequate 
 remedy by appeal, the writ of certiorari will 
 lie: Coburn v. Mahaska County, 4 G. Gr., 
 242. 
 
 6. Where a joint action was brought 
 against the several independent districts 
 comprising what had formerly been a, dis- 
 trict township, for a debt of such district, 
 and proceedings were had for the apportion- 
 ment of the judgment among the independ- 
 dent districts, held, that certiorari would not 
 lie from the proceedings of the court in malc- 
 ing such apportionment. Certiorari will not 
 lie where there is a plain, adequate and 
 speedy remedy by appeal: Independent 
 School Dist. V. District Court, 48-183. 
 
 7. The writ will issue when there has been 
 a usurpation of power in the denial of a 
 right to appeal: Davis County v. Horn, 4 
 G. Gr., 94. 
 
 8. After reversal on appeal: The judg- 
 ment of a lower court being reversed on ap- 
 peal and remanded for further proceedings 
 in accordance with the opinion, such court 
 has no jurisdiction to take any action incon- 
 sistent with such opinion, and if it attempts 
 to do so its proceedings may be corrected by 
 certiorari: Edgar v. Greer, 14-211. 
 
 9. Justice of peace; summary proceed- 
 ing: Where a justice of the peace exercises 
 a new jurisdiction created by statute, in 
 which the proceedings are summary, and in 
 a course different from the general principles 
 of the common law, certiorari and not ap- 
 peal is the proper method of having the 
 action of the justice reversed: Dubuque v. 
 Rebman, 1-444. 
 
 10. Judgment wrong'fnlly set aside: 
 Where the court has jurisdiction of the 
 parties at the time of making an order, its 
 action cannot be attacked by certiorari; the 
 remedy then is by appeal. Where, however, 
 during the term at which a judgment was 
 made, approved and signed, but after coun- 
 sel for one of the parties had left the court, 
 such judgment was set aside and other pro- 
 
CERTIOEARI, I. 
 
 231 
 
 When the writ will be granted. 
 
 < eedings had, held, that the order was with- 
 iivit jurisdiction and might be corrected on 
 certiorari: Hawkey e Ins. Co. v. Duffie, 67- 
 175. 
 
 11. Indefinite continuance: Where a 
 cause had been continued " until after the 
 next ensuing term" of court, and neither 
 the day nor the hour fixed, held, that defend- 
 ant was not bound to appear from day to day 
 to ascertain when it might suit the plaintiff 
 to call up the case, and a judgment rendered 
 in such case against the defendant was with- 
 out notice to him and void, and that defend- 
 ant would be entitled to the writ of certio- 
 rari as soon as he discovered that judgment 
 had been so rendered, notwithstanding more 
 than sixty days had elapsed since the rendi- 
 tion of judgment : Rowley v. Baugh. 33-201. 
 
 12. Failiu-e to appeal: A party who fails 
 to appeal within the time limited by law is 
 not entitled to sue out the writ : Suriberg v. 
 Diatrict Court, 61-597. 
 
 13. Where a, party has, through his own 
 fault, lost a plain, speedy and adequate rem- 
 t-dy, which he might have availed himself of, 
 as the right to appeal, he is not entitled to a 
 remedy in certiorari: Fagg v. Parker, 11-18. 
 
 14. So he will not be allowed to select 
 some erroneous ruling of an inferior tribunal 
 and have it corrected by certiorari : O'Hare 
 ■c. Hempstead, 31-33. 
 
 15. Thus, under Code of '51, it was held 
 that an error of the county court in reject- 
 ing testimony in the proceedings before it 
 should be corrected by appeal, and not by 
 certiorari: State v. Wilson, 12-424. 
 
 16. Administrator's settlement: The 
 proper remedy for a. refusal of the county 
 court to correct a mistake in an administra- 
 tor's final settlement is by appeal, and not by 
 certiorari: CHare v. Hempstead, 21-88. 
 
 17. CondcrauatioH proceedings: Where, 
 in right of way proceedings, it was not claimed 
 that the land was such as could not be taken 
 for right of way, nor that sufficient and 
 proper notice had not been given, but sim- 
 ply that sufficient damages were not as- 
 sessed and that the award was made on a 
 day subsequent to that fixed in the notice, 
 held, that tlie remedy, if any, was by appeal, 
 not certiorari: Cedar Rapids, I. F. & N. W. 
 R. Co. V. Whelan, 64-694. 
 
 18. Conxmissioners properly appointed to 
 
 appraise damages for the taking of land for 
 a right of way cannot be considered a tribu- 
 nal exercising judicial functions and held 
 liable for exceeding their jurisdiction or act- 
 ing illegally when the proceedings are regu- 
 lar, even though the case is one in which 
 there is no right to condemn the right of 
 way: Forbes r. Delashmutf, 68-164. 
 
 19. The proceedings of an inferior tribunal 
 to establish a highway will not be annulled 
 on certiorari unless it is shown that it has 
 exceeded its jurisdiction, or is otherwise act- 
 ing illegally : McCoUister v. Shuey, 24-363. 
 
 20. Where a board is given a discretion. 
 a court cannot on certiorari inquire into the 
 correctness of their decisions: Hildreth r. 
 Crawford, 65-339. 
 
 21. The statutes in reference to this sub- 
 ject do not contemplate that the decisions of 
 inferior tribunals in regard to matters of 
 fact, where the tribunal is clothed with au- 
 thority to decide with reference to matters 
 submitted to it, and the subject-matter and 
 the parties are within its jurisdiction, may 
 be reviewed by a writ of certiorari: Tiedt v. 
 Carstensen, 61-334; Darling v. Boesch, 67- 
 702. 
 
 22. Therefore, held, that in a proceeding by 
 certiorari in the circuit court, the decision of 
 the board of supervisors upon the question 
 whether the public interests demanded a pro- 
 posed highway, and whether it was practica- 
 ble and expedient to establisli it, could not 
 be reviewed : Tiedt v. Carstensen, 61-334. 
 
 23. Board of equalization: Certiorari ls 
 not the proper proceeding to control the dis- 
 cretion of a board of supervisors acting as a 
 board of equalization: Smith v. Board of 
 Supervisors, 30-531. 
 
 24. The action of the board of equaliza- 
 tion in increasing or diminishing the valua- 
 tion of the property of a tax-payer cannot be 
 reviewed by certiorari. Whatever the motive 
 of the alleged wrongful action of the board, 
 it cannot be deemed illegal in such sense as 
 to be reviewed in that manner: Polk County 
 V. Des Moines, 70 . 
 
 2.5, Where a board of equalization acts in 
 a. case not within its jurisdiction, certiorari 
 the proper remedy : Royce v. Jenney, 50-676. 
 
 20. County seat; relocation: The action 
 of a board of supervisors in determining upon 
 the sufficiency of remonstrances, and the 
 
232 
 
 CERTIORARI, I, II. 
 
 When the writ will be granted. — Pai-ties. 
 
 nnmber of names signed thereto, in proceed- 
 ings for the relocation of a county seat, is 
 judicial, and may be reviewed on certiorari: 
 HerricTc v. Carpenter, 54-340. 
 
 27. Intoxicating liquors; permits: The 
 court cannot on certiorari review the finding 
 of the board of supervisors in granting a 
 permit to sell intoxicating liquors, as to the 
 good moral chai'acter of the applicant, or as 
 to whether the granting of the permit was 
 necessary for the accommodation of the 
 neighborhood. But it may determine whether 
 the proceedings were illegal by reason of no 
 certificate whatever, signed by the electors as 
 required by statute, having been presented to 
 the county auditor: Darling v. Boesch, 67-702. 
 
 28. Tax for railroad ; illegal voting: The 
 action of township trustees in determining 
 whether the petition for submission to vote 
 on the proposition to levy a tax in aid of a 
 railroad is of a judicial or quasi judicial char- 
 acter, or whether it is illegal or without juris- 
 diction, may be determined in tjiis proceed- 
 ing : Jordan v. Hayne, -36-9. 
 
 29. But the question whether there has 
 been fraud or illegal voting cannot be deter- 
 mined, the proceeding not being intended 
 or calculated to discover and defeat such 
 frauds: Ibid. 
 
 30. Assessor to correct errors: Where 
 an assessor has failed to make on his books 
 the corrections ordered by the township 
 board of equalization, and such books have 
 passed beyond his control into the hands of 
 the auditor, an action of certiorari to have 
 the same corrected is the proper remedy : 
 Keck V. Board of Supervisors, 37-547. 
 
 31. School directors; illegal acts: Illegal 
 acts of a board of school directors in direct- 
 ing their secretary not to certify to the board 
 of supervisors a tax voted by the electors of 
 the district, may be corrected- on certiorari: 
 Smith V. Powell, 55-315. 
 
 32. City council; streets: CerWomH will 
 lie to control the action of a city council in 
 improperly vacating streets : Stubenrauch v. 
 Meyenesch, 54r-567. 
 
 33. Legislative acts of a city council in 
 passing ordinances cannot be interfered with 
 by certiorari. So held as to the action of a 
 city councO in passing an ordinance to reg- 
 ulate the sale of beer, wine, etc. ; Iske v. 
 Newton, 54r-586. 
 
 34. Remitting taxes: The action of the 
 city council in hearing a petition for the re- 
 duction of a tax and granting the same is 
 a judicial action and properly brought in 
 question by certiorari: Collins v. Davis, 57- 
 356. 
 
 35. The statute of limitations commences 
 to run against a proceeding by certiorari to 
 correct error in the action of a board of su- 
 pervisors in holding a petition for the relo- 
 cation of a county seat sufficient (Code, 
 § 385), from the time the board decides to sub- 
 mit the question to vote, and not from the 
 time it passes upon the petition: Jamison 
 V. Board of Supervisors, 47-388. 
 
 II. Paeties. 
 
 36. Person not affected: A person in no 
 way aflEeoted by the proceeding cannot inter- 
 fere therewith by writ of certio7-ari: Davis 
 County V. Born, 4 G. Gr., 94. 
 
 37. Where the record discloses no specific 
 right on the part of the plaintiff which is 
 violated by the ordinance of a city, he will 
 not be allowed on certiorari proceedings to 
 contest its validity : IsJce v. Neivton, 54-586. 
 
 3S. Bemissiou of tax ; action by any tax 
 payer: A tax payer may, in this proceeding, 
 question the action of a city council in re- 
 mitting taxes assessed against another tax 
 payer, although such plaintiff have no 
 greater interest in the matter than other tax 
 payers: Collins v. Davis, 57-256. ■ 
 
 39. Pecuniary interest; prohibitory 
 liquor law: While the general rule is that 
 an action of certiorari cannot be maintained 
 for the correction of irregularities or errors 
 in proceedings of the board of supervisoi-s 
 by one having no pecuniary interest in the 
 proceedings, yet under the prohibitory liquor 
 law authorizing the board of supervisors to 
 gi"ant permits for the sale of liquors upon 
 certain requirements being complied with by 
 the applicant, and permitting any citizen to 
 appear and show cause why the permit 
 should not be granted, such citizen has suf- 
 ficient interest in the granting of such per- 
 mit to entitle him to have the proceedings 
 reviewed and the errors and irregularities 
 therein corrected by certiorari without hav- 
 ing any pecuniary interest in the matter: 
 Darling v. Boesch, 67-702. 
 
CERTIORARI, III. 
 
 233 
 
 Procedure. 
 
 40. Joinder; taxes in different town- 
 ships: Where taxes have been levied in dif- 
 ferent townships in aid of a railroad, the 
 levy in each township is to be considered 
 distinct, and tax payers of different town- 
 ships cannot join as plaintiffs in an action of 
 certiorari to test the validity of such taxes : 
 Woodworth v. Gibbs, 61-398. 
 
 41. In a proceeding to i-eview the action 
 of the^ board of supervisors in assessing the 
 costs of constructing a levee upon adjoining 
 land, different property owners whose prop- 
 erty will be subject to assessment on that 
 question may join as plaintiffs : Richman v. 
 Board of Supervisors, 70 . 
 
 42. Several owners of distinct pieces of 
 land cannot join in a proceeding by certiorari 
 to correct the action in assessing damages re- 
 sulting from the establishment of a road: 
 Chambers v. Lewis, 9-583. 
 
 III. Peoceduee. 
 
 43. Special action: Under the Revision, 
 held, that the proceeding by certiorari was 
 a special proceeding and not a special action : 
 Ainsworth v. House, 31-504. 
 
 44. Criminal cases; jurisdiction: The 
 district and circuit courts have not jurisdic- 
 tion indiscriminately under the Code (§ 3317). 
 But the former has exclusive jurisdiction of 
 all such proceedings in criminal cases, and 
 the latter all those in civil cases, as provided 
 in g§ 161, 162: Keniston v. Hewitt, 48-679. 
 
 45. Sufficient return ; change of county 
 seat: Where a proceeding by certiorari was 
 brought to determine the legality of the 
 action of the board of supervisors in sub- 
 mitting to vote the question of changing the 
 location of a county seat, held, that the re- 
 turn of the board showing upon what evi- 
 dence the board proceeded, and in what 
 manner they reached the result upon which 
 the order v?as based, was proper: Stone v. 
 Miller, 60-343. 
 
 46. Duty of court to examine: Upon a 
 return of the writ of certiorari, held, that it 
 was the duty of the court to examine not 
 only the statement of the defendant made in 
 the return, but also the evidence submitted : 
 Ibid. 
 
 47. Material facts certified: Although 
 the writ may be defective in not having a suf- 
 
 ficient certificate as to the record, yet if the 
 facts deemed material are in fact certified, 
 no objection on account of the insufficiency 
 of the writ can be afterwards raised: Rich- 
 man V. Board of Supervisors, 70 . 
 
 48. Waiver of writ: The parties may 
 waive a writ of certiorari and voluntarily 
 submit themselves to the jurisdiction of the 
 court : Groves v. Richmond, 56-69. 
 
 49. Return as showing: notice: When the 
 judge returns that notice has been given, it 
 will be taken as duly and properly estab- 
 lished that notice was given in the proper 
 manner ; but if the proof of notice is set out, 
 and it appears to be insufficient, the correct- 
 ness of the finding of the judge as to the 
 notice will be overcome : Schroder v. Carey, 
 11-555. 
 
 50. Allegations to sustain application: 
 The motion for the writ should point out 
 specifically the illegalities. in the proceedings 
 complained of : Chambers v. Lewis, 9-583. 
 
 51. Direction: The writ should be di- 
 rected to the oflScer against whom it issues 
 by name and not merely by his official title : 
 Ibid. 
 
 52. Evidence before supervisors; audi- 
 tor's certificate: In a certiorari proceeding, 
 a certificate of the county auditor as to 
 whether oral evidence was received before the 
 board of supervisors touching a particulai- 
 question is not competent to overturn the 
 action of the board: Woolsey v. Board of 
 Supervisors, 33-130. 
 
 53. Facts not stated in writ: Under the 
 Revision, Jield, that the court could not, in 
 this proceeding, consider errors or illegalities 
 relating to or dependent upon facts not 
 stated in the petition or the writ : Everett v. 
 Cedar Rapids & M. R. R. Co., 38-417; Smith 
 V. Board of Supervisors, 30-581. 
 
 54. Power to hear testimony: Also, held, 
 under the Revision, that the case could be 
 heard only on the record returned and that 
 other evidence could not be introduced : Jor- 
 don V. Hayne, 36-9. 
 
 55. Under present provisions (Code, g 3223) 
 the court is allowed to consider other evi- 
 dence than that presented in the return of 
 the vsrrit, but it is not intended to extend the 
 remedy so that inquiry can be made into 
 matters other than the jurisdiction and legal- 
 ity of the proceedings of the inferior court. 
 
234 
 
 CHATTEL MORTGAGES, I. 
 
 Execution and delivery. 
 
 It is not the pui-pose of the statute to change 
 the ofifiee of certiorari so that it will operate 
 as an appeal wherein causes may be tried de 
 vovo. The provision for the introduction of 
 other evidence is for tlie purpose of permit- 
 ting the consideration of all the facts in- 
 volved in the case hearing upon the issues in 
 the proceeding, touching the jurisdiction and 
 compliance with the law in the case re- 
 viewed : Tiedt v. Carstensen, 61-334. 
 
 56. On appeal : The supreme court cannot, 
 upon certiorari from the circuit court, in- 
 quire whether the evidence before the latter 
 justified the order made, and thus review, as 
 upon appeal, its decision: Wise v. Chancy, 
 67-73. 
 
 57. Bond: It not being provided that judg- 
 ment upon the bond should be summarily 
 entered against a surety as provided in the 
 case of appeal bonds, such a judgment will 
 be en-oneous; Smith v. Bissell. 3 G. Gr., 379. 
 
 CHAMPERTY AND MAINTENANCE. 
 
 See Contracts, g§ 334-331 ; Attorneys, 
 g§ 94-102. 
 
 CHANGE OF VENUE. 
 
 In civil cases, see Venue, II, III ; and in 
 criminal oases, see Criminal Law, III, 3, b. 
 
 CHATTEL MOBTGAGES. 
 
 I. Execution and delivery. 
 II. Subject-matter; description; future 
 
 ACQUISITIONS. 
 
 III. Validity as to third persons. 
 
 IV. Rights op parties. 
 
 a. Nature of respective interests. 
 
 b. Priority of lien, 
 V. Foreclosure. 
 
 Sale of property by mortgagor constitutes 
 a crime : See Criminal Law, §g 456-460. 
 
 As to Acknowledgment, see that title. 
 
 As to recording, see Recording Acts. 
 
 As to Notice, see that title. 
 
 When void on account of being made in 
 connection with general assignment, see 
 Assignments, V. 
 
 When void as Fraudulent Conveyances, 
 see that title. 
 
 I. Execution and deliteet. 
 
 1. Ill parol: A parol agreement for a lien 
 upon personal property may be valid, and 
 will not be within ,,the statute of frauds if 
 money is still to be expended in acquiring 
 the property to be covered thereby : Brown 
 V. Allen, 85-306. 
 
 2. By partner: A mortgage of firm prop- 
 erty by one partner may be valid if within 
 the scope of his authority : Fromme v. Jones, 
 13-474. But not without consent of copart- 
 ner if it will practically terminate the firm 
 business: Osborne v. Barge, 29 Fed. Rep., 725. 
 
 3. Parol evidence to show absolnte sale 
 intended as a mortgage: It is competent to 
 show by parol evidence that a sale, absolute 
 in its terms, was intended as security for a 
 debt : Votaw v. Diehl, 63-676. 
 
 4. Delivery and acceptance: An accept- 
 ance by the mortgagee is necessary to con- 
 stitute delivery. While actual manual de- 
 livery is not necessary, there must be that 
 which, in legal contemplation, is equivalent 
 thereto : Day v. Orifflth, 15-104. 
 
 5. Even if the mortgagor agrees with a 
 creditor to give security, the filing of the 
 mortgage, by the mortgagor, with the re- 
 corder, but without the knowledge of the 
 mortgagee, will not constitute a valid de- 
 livery: Ibid. 
 
 G. The subsequent acceptance of the instru- 
 ment by the mortgagee, while it will make 
 the instrument valid from that time, will 
 not relate back to the original execution and 
 delivery to the recorder, so as to cut off the 
 rights of a creditor who has secured an at- 
 tachment before such acceptance : Ibid. 
 
 7. Where a chattel mortgage was executed 
 as security for a loan procured from the mort- 
 gagee, under an agreement that the mort- 
 gagor should give a oiialtel mortgage on suffi- 
 cient property to constitute ample security for 
 the loan, and file the same with the recorder 
 for record, held, that such filing for record 
 amounted to a valid delivery to the mort- 
 gagee, although he did not know what spe- 
 cific property was covered by the mortgage : 
 Everett v. Whitney, 55-146. 
 
 8. Although the execution and filing for 
 record by mortgagor of a mortgage upon cer- 
 tain property, in accordance with a prior 
 agreement to execute such mortgage, may 
 
CHATTEL MORTGAGES, I, II. 
 
 235 
 
 Execution and delivery. — Subject-matter. 
 
 constitute a delivery to the mortgagee, yet, 
 where a mortgage was thus executed and 
 liled in accordance with a prior agreement 
 to secure the debt by chattel mortgage, 
 but without the particular property having 
 been previously agreed upon, held, that such 
 mortgage would not take priority over an at- 
 tachment, levied after the recording of the 
 mortgage, but prior to its delivery to the 
 mortgagee : Cobb v. Chase, 54-253. 
 
 9. Where a chattel mortgage from hus- 
 band to wife was filed by the husband for 
 record and recorded, but it did not appear 
 that it had come into the hands of the wife, 
 or been approved by her until after the ac- 
 cruing of other liens, held, that it would not 
 
 , take priority over such liens : Wadsworth v, 
 Barlow, 68-599. 
 
 10. Although it is true that where a mort- 
 gage beneficial to the mortgagee is left with 
 the recorder or other person, with the decla- 
 ration that it is to be delivered to the mort- 
 gagee, or is for the mortgagee's use, and the 
 facts come to the mortgagee's knowledge, ac- 
 ceptance from that time may be presumed, 
 yet, where the instrument was filed with the 
 recorder, with no declaration that it was to be 
 delivered to the mortgagee, or was for her 
 use, held, that acceptance by her would not be 
 presumed from the mere fact of knowledge, 
 at least where it did not appear that the mort- 
 gage was necessarily beneficial to her : Ibid. 
 
 H. Where, at the time a debt is contracted, 
 it is agreed that a chattel mortgage shall be 
 executed upon the happening of a specified 
 event, to cover property specifically named, 
 and the mortgage is executed upon the hap- 
 pening of such event, the law will presume 
 that the mortgagee assented to the mortgage. 
 The assent expressed in the agreement will 
 be deemed to continue up to the execution 
 of the mortgage : In re Assignment of Guyer, 
 69-585. 
 
 12. In such case, where the mortgagor has 
 by agreement bound himself to execute the 
 niortgage, and the mortgagee has assented 
 thereto and agreed to accept it, the mort- 
 gagor will be authorized to file it for record, 
 and the person to whom he delivers it will 
 be authorized to do this as agent of the mort- 
 gagee: Ibid. 
 
 13. The execution of a chattel mortgage 
 to secure a creditor wUl not prevent the 
 
 property covered thereby passing by gen- 
 eral assignment executed after the execution 
 of the mortgage and before its acceptance 
 by the mortgagee : Gage v. Parry, 69-605. 
 
 14. Mortgage upon property held under 
 replevin: Where, in a replevin suit to re- 
 cover possession of property from an ofiicer, 
 the plaintiff dismissed suit before the join- 
 ing of issues, but the property remained in 
 his hands, and before the issuance of a writ 
 of restitution plaintiff executed a mortgage 
 upon such property, held, that a subsequent 
 return of the property to the ofiicer, under 
 the writ of restitution, and a new levy thereon 
 by him, would not give him any right prior 
 to the mortgage, it appearing that the mort- 
 gagor was in fact the real owner of the prop- 
 erty : Case v. Woleben, 53-389. 
 
 As to ACKNOWLEDaMENT and Eecoeding, 
 see those titles respectively. 
 
 II. SUEJEOT-MATTEE ; DESCEIPTION : 
 FUTURE ACQUISITIONS. 
 
 15. Certainty of description: A descrip- 
 tion of the property in a chattel mortgage 
 which will enable third persons, aided by in- 
 quiries which the instrument itself indicates 
 and directs, to identify the property, is suffi- 
 cient : Smith v. McLean, 24-322. 
 
 16. Therefore, the following description 
 was held sufficiently definite: "five freight 
 wagons and twenty-five yoke of cattle, being 
 the train now in my possession : " Ibid. 
 
 1 7. Any description in a chattel mortgage, 
 which will enable third persons, aided by 
 inquiries which the instrument itself sug- 
 gests and directs, to identify the property in- 
 tended to be covered, is sufficient : Rhutasel 
 V. Stephens, 68-627. 
 
 18. Therefore, held, that a chattel mort- 
 gage covering ' ' all my stock hogs, being forty, 
 more or less, with the pigs now with them," 
 was sufficient, but that the description "one 
 span of colts, three years old, one gray, and 
 one bay,'' etc., etc., but making no reference 
 to the ownership of the property, its location, 
 or otherwise describing it, was insufficient : 
 Ibid. 
 
 19. In order to charge third persons witii 
 constructive notice of a chattel mortgage, 
 the description of the property as contained 
 in the mortgage must direct the mind to evi- 
 
236 
 
 CHATTEL MORTGAGES, II. 
 
 Subject-matter; description. 
 
 denc3 whereby the precise thing conveyed 
 may be ascertained, and if thereby absolute 
 certainty may be attained, the instrument is 
 valid. Otherwise it is void as to third per- 
 sons for uncertainty: Ormsby v. Nolan. 69- 
 130. 
 
 29. A description of a buggy and sulky 
 showing by whom they were made and from 
 whom bought, but not showing their owner- 
 ship, location, etc., held, not sufficient: 
 Ibid. 
 
 2 1 . A chattel mortgage describing the prop- 
 erty as in possession of the mortgagor, and 
 showing the county in which the property is 
 located, is sufficient : Wells v. Wilcox, 68-708 ; 
 Brock V. Barr, 70 . 
 
 22. Specific description of animals, with 
 the further fact shown by the mortgage that 
 they are in the possession of the mortgagor, 
 is sufficient : IVheeler v. Becker, 68-723. 
 
 23. The description ' ' sixty head of two and 
 three year old steers and forty head of year- 
 ling steers, also sixty-five acres of standing 
 corn, situated in Clay township, Shelby 
 county," held, not sufficiently specific, in 
 that there was no suggestion that the ani- 
 mals were all the animals of that age and 
 description which the mortgagor owned in 
 that township: Caldwell v. Trowbridge, 68- 
 150. 
 
 24. If the description is correct as far as it 
 goes, but fails fully to point out and identify 
 the property intended to be conveyed, a 
 subsequent purchaser or incumbrancer is 
 bound to make every inquiry which the in- 
 strument could be reasonably deemed to 
 suggest : Yant v. Harvey, 55-431. 
 
 25. Therefore, where a mortgage described 
 a horse as of brown color, whereas the evi- 
 dence showed that some woiild call it brown 
 and others would call it black, held, that 
 there was not such a misdescription as to 
 render the mortgage invalid : Ibid. 
 
 26. A description of property as a stock of 
 goods, wares and merchandise, consisting of 
 groceries, etc., and all other articles of goods 
 now in stock, etc., in a store-room, etc., held, 
 sufficient to cover kerosene and salt embraced 
 in the stock, the salt being actually stored in 
 a building used for that purpose iu connec- 
 tion with the store-room, and the kerosene 
 being at the time of levy under attach- 
 ment, in front of the building, where it had 
 
 been rolled out on the same day for a tem- 
 porary purpose : Stephens v. Pence, 56-257. 
 
 27. The terms "goods, wares, merchan- 
 dise, fixtures, furniture and appliances," used 
 in a chattel mortgage . covering a stock of 
 goods in a grocery store, held, not sufficient 
 to include horses and wagons used in con- 
 nection with the store in the delivery of 
 goods, nor notes, drafts, accounts, etc., kept 
 in a safe in such store : Van Patten v. Leon- 
 ard, 55-520. 
 
 28. Under a chattel mortgage of the fix- 
 tures and appurtenances of a daguerrean 
 room, held, that the term "appurtenances" 
 covered such property as appertained and 
 belonged to the room, or remained there per- 
 manently, and was used in carrying on the 
 business, such as maps and pictures hanging 
 on the wall, the stove and carpet, the appara- 
 tus and furniture necessary for the business, 
 with the machines and stock, etc. : Pickerell 
 V. Carson, 8-544. 
 
 29. Mistake in description: If the mort- 
 gage contains a specific description which is 
 erroneous, and therefore misleading, it will 
 not be upheld against innocent purchasers:- 
 Ivins V. Hines, 45-73. 
 
 30. Where a chattel mortgage upon a grow- 
 ing crop described it as upon ' ' township 37, 
 range 90," instead of "township 90, range 
 37," and a judgment creditor subsequently 
 had the crop sold under execution for his 
 debt, held, that the creditor was not charge- 
 able with notice of the mistake in the de- 
 scription, and was not liable in an action by 
 the mortgagee for the value of the crop: 
 Adams V. Commercial Nat. Bank, 53-491. 
 
 31. Description of crop: Where the de- 
 scription of the property covered by the mort- 
 gage was "all the cut and growing, and 
 having grown on the" premises described, 
 held, that the description was too uncertain 
 to be of any validity against an officer who 
 had levied upon the property, and that the 
 court would not insert or understand the 
 word " crops " for the purpose of curing the 
 defect : Cray v. Currier, 62-535. 
 
 32. Where the mortgage described the 
 property as ' ' all and the entire crop of flax 
 and wheat and other grain or produce raised 
 on " certain premises, held, that the descrip- 
 tion was too indefinite and uncertain, in that 
 it did not appear where the crops were to be 
 
CHATTEL MORTGAGES, II. 
 
 237 
 
 Subject-matter ; description. 
 
 raised, and that even if it could be said to 
 apply only to growing crops, it was insuffi- 
 cient because the year during which they were 
 to be grown was not stated, and that in these 
 respects the mortgage was not such as to put 
 a subsequent mortgagee upon inquiry : Eg- 
 gert v. WhiU, 59-464; Barrv. Cannon, 69-20. 
 
 33. A mortgage on crops to be sown or 
 planted will not be deemed sufficient as 
 against third persons unless the year or term 
 within which the crops are to be grown is 
 stated: Pennington v. Jones, 57-37. 
 
 34. A mortgage upon " all the crops raised 
 by me in any part of Jones county for the 
 term of three years," held too indefinite as 
 against third persons : Muir v. Blake, 57-662. 
 
 35. A mortgage upon crops to be raised in 
 the future for a certain year on certain land 
 described is sufficient and will attach to such 
 crops as soon as they come into existence: 
 Wheeler v. Becker, 68-723. 
 
 36. Description too indefinite: The de- 
 scription of property as " one oscillating 
 thresher, size 6, 30-inch cylinder, and also 
 one Chicago Pitts, ten horse power," he'!d, too 
 indefinite and uncertain to be sustained as 
 between the mortgagee and a creditor of 
 the mortgagor who had attached the prop- 
 erty : Hayes v. Wilcox, 61-732. 
 
 37. A chattel mortgage upon " sixty head 
 of hogs" without other description, held, 
 not to contain anything which would justify 
 inquiry leading to, the identification of the 
 property, and therefore not sufficient notice, 
 as recorded, to charge a subsequent pur- 
 chaser of the property intended to be mort- 
 gaged : Everett v. Brown, 64-430. 
 
 38. Actual knowledge: Where it appears 
 from the evidence that an attaching creditor 
 and the officer levying the attachment had 
 due notice of the mortgage prior to the levy, 
 and intentionally levied on property included 
 therein, the fact that the property is insuffi- 
 ciently described will be immaterial : Hall v. 
 Ballon, 58-585. 
 
 39. Parol evidence: Where property in- 
 tended to be covered by chattel mortgage is 
 not so described as that it will, as a matter of 
 law, constitute constructive notice of the 
 mortgagee's rights, the mortgagee cannot re- 
 cover possession of the property from one 
 claiming under a subsequent mortgage un- 
 less he can show, and does show, by evi- 
 
 dence aliunde the mortgage, that the property 
 claimed is that mortgaged : Rowley v. Bar- 
 tholemew, 37-374. 
 
 40. The description in a mortgage cannot 
 be varied by parol evidence for the purpose 
 of showing an intent on the part of the par- 
 ties different from that shown by the mort- 
 gage itself : Lormer v. Allyn, 64-725. 
 
 41. As between the mortgagee and an at- 
 taching creditor it is not proper to receive 
 parol evidence to vary the instrument by, 
 showing that the words " goods " and " stock " 
 therein used were intended to include fix- 
 tures : Van Evera v. Davis, 51-637. 
 
 42. Identification: In an action to fore- 
 close a chattel mortgage evidence may be 
 introduced to identify the property as that 
 described in the mortgage, although it has 
 been removed or otherwise changed, without 
 any allegation of such removal or change 
 having been made: Odell v. Gallup, 62- 
 253. 
 
 43. Extrinsic evidence is only admissible 
 to identify the property covered by the mort- 
 gage when the mortgage suggests inquiry 
 which will result in such identification: 
 Ormsby v. Nolan, 69-130. 
 
 44. The question, whether the description 
 is such as that the property intended to be 
 covered could be identified therefrom, is one 
 of fact to be determined by the jury : Peter- 
 son V. Foil, 67-402. 
 
 45. Description of indebtedness: A chat- 
 tel mortgage to secure a certain sum "for or 
 on account of advances made and money 
 loaned by the party of the second part to " 
 the mortgagor, "together with interest at 
 the rate of ten per cent, per annum from the 
 date of each several sum at divers times here- 
 tofore advanced by the said party on or 
 before," etc., held, to sufficiently describe an 
 indebtedness which it was given to secure, 
 although such indebtedness consisted of sev- 
 eral sums which, with interest, amounted to 
 a few dollars more than the amount men- 
 tioned: Clark V. Hyman, 55-14. 
 
 46. Fixtures : As to whether a chattel 
 mortgage, executed upon fixtures which are 
 not severed from the realty in fact, will oper- 
 ate as a constructive severance, and pass the 
 title in such fixtures to the grantee, quaere ; 
 but the recording thereof will not impart to 
 subsequent purchasers of the realty con- 
 
238 
 
 CHATTEL MORTGAGES, II. 
 
 Subjeot»inatter ; future acquisitions. 
 
 structive notice of such incumbrance : Bring- 
 holffv. Munzenmaier, 20-513. 
 
 47. Where the owner of real property exe- 
 cutes a mortgage upon chattels, which may 
 properly be made fixtures, and subsequently 
 affixes them to the realty, a person purchasing 
 or acquiring a lien upon such real property 
 with knowledge of the facts, takes subject to 
 the mortgage; and held, that the mechanic 
 who attached such fixtures to the realty was 
 affected with notice by the recording of such 
 chattel mortgage, and his lien was subject 
 thereto : Sowden v. Craig, 26-156. 
 
 48. A chattel mortgage of certain machin- 
 ery before it was placed in a mill, and which 
 when so placed could be removed without 
 material injury to the main building, held, 
 not to be lost by such use of the property : 
 First Nat. Bank v. Elmore, 52-541. 
 
 49. Where a chattel mortgage was given 
 upon a mill separate from the land on which 
 it was located, and afterward the land was 
 conveyed to a party who had knowledge of 
 the mortgage, held, that the purchaser was 
 subject to the lien thereof: Oreither v. Alex- 
 ander, 15-470. 
 
 •50. Natural increase: Where a mortgage 
 upon two cows was duly recorded, no refer- 
 ence being made to their increase, held, that 
 the mortgagee did not have a lien upon such 
 increase which could be asserted as against a 
 purchaser thereof in good faith, without no- 
 tice, from the mortgagor in possession, after 
 the increase had attained such age as to be 
 independent of the dam: Winter v. Land- 
 phere, 42-471. 
 
 51 . The chattel mortgagee having the right 
 to possession under his mortgage of the prop- 
 erty has also the right to possession of the nat- 
 ural increase of the property. Therefore, held, 
 that, where a chattel mortgage was given 
 upon mares, such mortgage covered foal from 
 such mares until the colts were weaned or 
 should be weaned according to the course of 
 nature, or the usual custom of those raising 
 horses : Rogers v. Highland, 69-504. 
 
 62. Future acquisitions: A railway com- 
 pany may mortgage future acquisitions: 
 Dunham, v. Isett, 15-284. 
 
 53. The future earnings of vessels and rail- 
 road companies, as well as property subse- 
 quently acquired, may be mortgaged, and 
 such future earnings cannot be seized on 
 
 execution by gai'nishment : Jessiip v. Bridge, 
 11-572. 
 
 54. Wliile a chattel mortgage may be 
 made to cover future acquisitions, it is neces- 
 sary that such provision be expressly made ii> 
 the mortgage in order to hold such property, 
 and if the mortgage refers to' a stock of 
 goods, scheduling and describing them, an<l 
 not specifying future acquisitions, it will not 
 be held to cover additions afterwards made : 
 Phillips V. Both, 58-499. 
 
 55. Where the description in a mortgage 
 of a stock of goods included " credits arising 
 out of said business," held, that the mortgage 
 only covered credits existing at the time of 
 the execution of the mortgage and not those 
 subsequently ai-ising: Lormer v. Allyn, 64- 
 725. 
 
 56. A chattel mortgage upon ''all thi^ 
 stock that I may own during the existence of 
 this mortgage," held sufficiently definite in 
 description to be valid as to stock subst- 
 quently acquired: Hughes v. Wheeler, 6H- 
 641. 
 
 67. Although by strict common law rule a 
 party could not mortgage property not iti, 
 esse so as to vest the property in the mort- 
 gagee when it should come into existence, 
 yet courts of equity, and, under our laws, 
 couits of law, also, will recognize the rights 
 of such mortgagee, and enforce them against 
 all persons having notice of such rights, pro- 
 vided the property described is capable of 
 identification: Scharfenburg v. Bishop, .35- 
 60 ; Brmvn v. Allen, 35-306. 
 
 58. A mortgage drawn with the intention 
 of covering future acquired property which 
 is at the time in existence, but not the prop- 
 erty of the mortgagor, will be valid as to 
 such property when acquired: Hxighes r. 
 Wheeler, 66-641. 
 
 59. Fntnre crops: The supreme court is 
 not committed to the doctrine that a mort- 
 gage upon a crop to be planted and grown is 
 valid as against a creditor of the mortgagor. 
 Whether the rule which has been followed 
 in case of additions to the stock of mer- 
 chandise covered by a mortgage would Vie 
 applicable in such cases, qumre: Muir v. 
 Blake, 57-662. 
 
 60. Before a mortgage on crops to be sown 
 or planted can be regarded as valid against 
 third persons, the year or term in which the 
 
CHATTEL MORTGAGES, III. 
 
 2?.H 
 
 Validity as to third parties. 
 
 crop is to be grown must be stated: Pen- 
 nington V. Jones, 57-37. 
 
 Gl. - A chattel mortgage providing that 
 future acquired property shall be transferred 
 thereby is valid, and such property upon its 
 acquisition becomes subject thereto. The 
 fact that the property is not in existence at 
 the time of the execution of the mortgage 
 wiU not defeat the notice imparted by such 
 record, after the property comes into exist- 
 ence : Wheeler v. Becker, 68-733. 
 
 And as to sufficiency of description of 
 crops, see supra, g§ 31-35. 
 
 62. Does not cover proceeds: A chattel 
 mortgage does not cover the proceeds of 
 goods rightfully sold in the ordinary course 
 of trade : Lormer v. Allyn, 64r-725. 
 
 63. One who receives money from a debtor 
 believing it to be the proceeds of the sale of 
 chattel property is under no obligation to 
 ascertain whether such property is covered 
 by mortgage, and cannot be held as trustee 
 for a mortgagee of the property. If the fact 
 of the existence of the mortgage were 
 known, and the identical proceeds could be 
 traced, a different question might arise: 
 Burnett v. Oustafson, 54-86. 
 
 64. A chattel mortgage does not become a 
 lien upon the proceeds of the sale of the 
 property covered thereby, unless the circum- 
 stances are such that the mortgagee cannot 
 follow the property. Whether, in case the 
 mortgagee cannot follow the property, he has 
 any remedy, qucere: Waters v. Cass County 
 Bank, 65-234. 
 
 65. A note given the mortgagor for the 
 purchase price of property covered by chattel 
 mortgage is not subject thereto, and will pass 
 to a purchaser without notice free from any 
 claim of the mortgagee : Kaliler v. Hanson, 
 
 III. Validity as to thikd parties. 
 As to who are protected against an unre- 
 corded mortgage or bill of sale, when the 
 mortgagor or vendor retains possessioil, see 
 RECORDiNa Acts, III, d. 
 
 66. Change of possession : i A change in 
 the •' actual possession," which will be suffi- 
 cient under the statute to render the mort- 
 gage valid as to third persons without record- 
 ing, must be something to indicate the change 
 of ownership ; if the property be left with the 
 seller, whose relations to it continue un- 
 changed, so far as the world may know from 
 the acts of the parties, the possession will be 
 regarded as continuing in him : Boothby v. 
 Brown, 40-104 ; Sutton v. Ballon, 46-517 ; Hii- 
 kok V. Buell, 51-655 ; McAfee v. Bushy, 69-328. 
 
 67. The use of the term "actual posses- 
 sion " implies that a change of possession suf- 
 ficient to constitute a delivery and pass the 
 property as between the parties may not be 
 sufficient to impart notice to others. To take 
 a case out of the statute, something must be 
 done to impart such notice. Therefore, where 
 there was a sale of a field of com standing 
 on the farm of the vendor, the vendee not 
 taking immediate charge of the corn nor 
 control of the field, held, that the vendor re- 
 tained actual possession within the meaning 
 of the section: Sntith v. Champney, 50-174; 
 Nuckolls V. Pence, 53-581. 
 
 68. There must be an actual change of 
 ■ possession : McKay v. Clapp, 47-418. 
 
 6!). The statute requires such transfer of 
 dominion over the property as to imply notic*! 
 to persons dealing with reference to the 
 property that the title has been transferred : 
 or such possession as will put such persons in 
 possession of facts leading to inquiry as t<;> 
 the ownership. The possession need not 
 necessarily be such as to imply notice to the 
 public generally, but is sufficient if it implies 
 notice to those who intend to purchase the 
 property or deal with reference to it : Deere r. 
 Needles, 65-101. 
 
 70. Not necessary where property is in 
 the hands of third persons: Where the 
 property is not in the actual possession of the 
 mortgagor or vendor, or in his custody so 
 that there may be manual delivery, an act- 
 ual delivery is not necessary to the validity 
 of the transaction. If the property is placed 
 
 ^ Code, § 19'33. No sale or mortgage of personal property, where the vendor or mortgagor retains actual pos- 
 session thereof, is valid against existing creditors or subsequent purchasers, without notice, unless a written 
 instrument conveying the same is executed, acknowledged like conveyances of real estate, and filed for 
 record with the recorder of the county where the holder of the property resides. 
 
 [As bills of sale as well as mortgages of chattels are covered by this provision, so that the same rule as to 
 what is sufficient change of possession or recording, etc., is applicable in either case, all the decisions on that 
 question are collected here.] 
 
>A0 
 
 CHATTEL MORTGAGES, III. 
 
 Validity as to third parties. 
 
 in the power of the purchaser, that is suffi- 
 cient : Barrows v. Harrison, 13-588. 
 
 71. If the property at the time of the sale 
 or mortgage is in the possession of a lessee, 
 and i-emains in his possession, the vendor 
 iloes not retain the "actual possession" of 
 the property, so as to render recording neces- 
 sary : Thomas v. Hillhouse, 17-67. 
 
 72. So held, also, where the goods were in 
 the hands of a common carrier : Alsberg v, 
 Latta, 30-443. 
 
 73. Where the property at the time of the 
 sale is in the actual possession of a third 
 person as lessee or the like, a sale without 
 notice and without change of possession is 
 vaild, and it is wholly immaterial in such 
 oases whether or not the owner has the right 
 to the immediate possession: Campbell v. 
 Hamilton, 63-293. 
 
 74. Where a landlord assigned his lease to 
 his creditor, who thereupon became entitled 
 to the landlord's share of the crops on the 
 premises, held, such assignment was valid' 
 without record as to creditors and purchasers 
 from the assignor without notice of the as- 
 signment, there being no retention of posses- 
 sion, by the landlord: Lufkin v. Preston, 
 .57-28. 
 
 75. Ketention of possession by mortgagor 
 not fraudulent: The retention of the mort- 
 gaged property by the mortgagor does not, 
 as matter of law, render the mortgage fraud- 
 ulent and void: Torbert v. Hayden, 11-435; 
 Jessup V. Bridge, 11-572; Fromme v. Jones, 
 13-474; Wilhelmi v. Leonard, 13-330; SmiWi 
 V. McLean, 24-323, 330. 
 
 76. Possession retained by vendor or moi't- 
 gagor after recording the instrument is 
 strictly lawful and not fraudulent or a badge 
 of fraud, unless such retention is a part of 
 the consideration of the sale: Jordan v. 
 Lendrum, 55-478. 
 
 77. Under the statutory provisions as to 
 lecording, the mere retention of the posses- 
 sion of personal property by the mortgagor 
 thereof, when the mortgage is duly recorded, 
 is no longer either per se fraudulent or a 
 badge of fraud in law, although it may be a 
 circumstance with others to prove fraud in 
 fact : Hughes v. Cory, 20-399. 
 
 78. The right given by statute to the mort- 
 gagor to retain possession of personal prop- 
 erty implies the right to a reasonable use 
 
 thereof, especially when the act of using does 
 not necessarily consume it : Ibid. 
 
 79. Right to sell in ordinary course of 
 trade: A chattel mortgage which contains a 
 reservation by the mortgagor of the right 
 to sell the mortgaged property in the usual 
 course of retail trade, with an agreement to 
 keep up the stock to its original value, and a 
 reservation of the right to retain the avails 
 of the sales under an agreement to apply a 
 portion thereof to the payment of the mort- 
 gage, is not fraudulent per se, as a matter of 
 law, and whether fraudulent in fact, or not, 
 must be decided upon all the evidence: 
 Ibid. ; Meyer v. Gage, 65-606 ; Maish v. Bird,, 
 23 Fed. Eep. 576. 
 
 80. Nor does the fact that the mortgage 
 provides that the debtor shall remain in 
 possession of the goods, receiving the pro- 
 ceeds and paying the same to the creditor's 
 banker, render the mortgage void. Such 
 fact might be considered in determining the 
 question of fraud, but it is not fraud per se: 
 Adler v. Claflin, 17-89. 
 
 81. The provision that the mortgagor shall 
 have the right to retain possession and carry 
 on the business in the usual retail way for 
 one year, paying costs and expenses of run- 
 ning the business and keeping up the stock 
 to about what it was at the time of the ex- 
 ecution of the mortgage, held, not sufficient 
 to render the mortgage fraudulent in law, 
 although np provision was made for an ap- 
 plication of the profits to the satisfaction of 
 the mortgage debt. It might be otherwise 
 if the mortgage should provide for sales that 
 would exhaust the stock without any pro- 
 vision for such application : Jaffray v. Oreen- 
 baiim, 64-492. 
 
 82. The fact that there is no agreement to 
 account to the mortgagee for the proceeds of 
 sales of the mortgaged property in the course 
 of trade does not affect th,e validity of the 
 mortgage : Clark v. Hyman, 55-14. 
 
 83. Reservation of the right to sell in the 
 ordinary course of trade and apply the pro- 
 ceeds to the mortgagor's own use will not 
 render the mortgage fraudulent in law: 
 Sperry v. Ethridge, 63-543 ; Meyer v. Evans, 
 66-179. 
 
 84. Nor will the fact that the chattel 
 mortgage containing such agreement with 
 reference to reservation of possession and 
 
CHATTEL MORTGAGES, III. 
 
 241 
 
 Validity as to third parties-. 
 
 right to sell in the ordinary course of trade 
 and apply the proceeds to mortgagor's own 
 use, if given after the mortgagor becomes 
 insolvent, render the mortgage necessarily 
 fraudulent: Sperry v. Ethridge, &S^5iS. 
 
 85. In the federal courts it is held that a 
 mortgage of chattels which permits the 
 mortgagor to remain in possession until 
 default in payment of the debt secured, with 
 power to sell the goods as theretofore, is 
 fraudulent and void in law, and cannot be 
 enforced by a court of equity. This being a 
 matter outside the state statute, the decisions 
 of the United States supreme court will be 
 followed independent of the state decisions : 
 Crooks V. Stuart, 2 McCrary, 13; Wells v. 
 Langbein, 20 Fed. Rep., 183. 
 
 8G. Although the rule in the federal courts 
 is that reservation by mortgagor of the right 
 to sell in the usual course of trade renders 
 the mortgage fraudulent and void as to cred- 
 itors, yet a plaintiff who in proceedings in 
 the federal courts levies upon such mortgaged 
 property as that of the mortgagor, treating the 
 mortgage as invalid, becomes liable in the 
 state court to an action for trespass : Meyer 
 V. Gage. G5-606. 
 
 87. Circumstances indicating fraud: The 
 provisions as to application of the proceeds 
 and the fact of insolvency may be consid- 
 ered as tending to prove that a mortgage 
 reserving right of sale to mortgagor was ex- 
 ecuted with the intent to defraud or delay 
 other creditors : Sperry v. Ethridge, 63-543. 
 
 88. The mere fact that creditors who are 
 secured by chattel mortgages are intimate 
 friends or relatives of the debtor does not 
 necessarily show that their mortgages are 
 fraudulent : Jaffray v. Greenbaum, 64-492. 
 
 '89. Fraud in fact: Compliance with the 
 provisions of the recording acts does not 
 preclude the transaction being attacked on 
 the ground that it is actually fraudulent as 
 against creditors : Singer v. Sheldon, 56-354. 
 
 90. If the parties to the mortgage have a 
 fraudulent intent, in creating the loan, to 
 hinder and delay other creditors, and thereby 
 confer advantages upon the mortgagor which 
 he would not otherwise possess, this will be a 
 frauJ in fact which will render the mort- 
 _gage void. The fact of fraudulent intent 
 must, however, be shown by extrinsic evi- 
 dence and found by the verdict of the jury. 
 Vol. 1 — 16 
 
 It cannot be inferred from the mere provis- 
 ions of the mortgage: Torbert v. Hayden, 
 11-435. 
 
 91. If possession by mortgagor is accom- 
 panied by the power of disposition or use in 
 any way inconsistent with the object of so- 
 curing the rights of the mortgagee, that fact 
 would be a badge of fraud, not absolute but 
 prima facie, requiring explanation. Whether 
 possession by the mortgagor with a right to 
 deal with the property as his own is fraud- 
 ulent constitutes a question of intent, and 
 will depend entirely upon the circumstances 
 explaining such acts of ownership : Ibid. 
 
 92. The fact that a chattel mortgage is 
 filed for record by the mortgagor, if under 
 circumstances showing good faith, is not evi- 
 dence of fraud : Mason v. Franklin, 58-503. 
 
 93. The fact of a variance between the 
 true consideration and that expressed in the 
 instrument is at most but a badge of fraud, 
 proper to be submitted to the consideration 
 of the jury as a fact bearing upon the ques- 
 tion of fraudulent intent : Ibid. 
 
 94. The fact that a naortgage is given by 
 an insolvent person for more than is due, and 
 that such insolvency is known to the mort- 
 gagee, is a. badge of fraud but not conclu- 
 sive : Wood V. Scott, 55-114. 
 
 95. That fact, however, casts on the mcrt- 
 gagee the burden of showing that the mort- 
 gage was executed in good faith, and for an 
 honest purpose, and of satisfactorily explain- 
 ing why the amount named was greater 
 than the actual indebtedness: Lombard v, 
 Dows, 66-243. 
 
 96. A chattel mortgage in a certain case, 
 given by the debtor to his brother to secure 
 existing indebtedness, held, not fraudulent 
 as to other creditors : Clark v. Synian, 55-14. 
 
 97. I'he burden of establishing the inva- 
 lidity of the chattel mortgage is upon the one 
 who opposes its enforcement. This may be 
 done by showing either that the provis- 
 ions of the mortgage are such as to prove 
 that the parties thereto intended to commit 
 &■ fraud upon the rights of others, or by 
 showing that the acts of the parties have 
 been such that fraud is the necessary infer- 
 ence: 3Iaish V. Bird, 22 Fed; Rep., 576. 
 
 98. Delay In recording the mortgage was 
 held to be sufficiently explained by the fact 
 that the mortgagor was trying to secure a 
 
242 
 
 CHATTEL MORTGAGES, lU. IV, a. 
 
 Validity. — Rights of parties. 
 
 large loan in New York, and if successful 
 -in so doing was then to pay oflE the mortgage 
 before it was put on record, the mortgage 
 debt not being created by the mortgage but 
 already existing : Ibid. 
 
 99. r.iilure to record a chattel mortgage 
 taken on a stock of goods, whereby other 
 creditors are misled to give the mortgagor a 
 credit which does not belong to him^, will 
 invalidate the mortgage as against such 
 creditors without notice: Simon v. Open- 
 heimer, 20 Fed. Rep., 553. 
 
 100. After an assignment by the debtor, 
 such mortgagee is on a like footing with 
 other creditors without notice, of a date prior 
 to the recording of the mortgage : Rumsey v. 
 Town, 20 Fed. Rep., 558. 
 
 101. The federal courts do not differ from 
 the state courts in regard to the effect of the 
 state statute, but even under the state decis- 
 ions actual fraud, which may be inferred as 
 matter of law from the facts of the case, in- 
 cluding the provisions of the mortgage, will 
 render it void. Delay of mortgagee to put 
 his mortgage on record, or his allowing 
 mortgagor to sell the property and apply the 
 proceeds'^ his own use instead of reducing 
 the mortgage debt, so as to defraud creditors, 
 will constitute fraud such as to deprive the 
 mortgagee of the priority of his claim : Lyon 
 V. Council Bluffs Savings Bank, 29 Fed. 
 Rep., 566. 
 
 Further as to recording, see Recording 
 Acts. 
 
 102. TVitli notice: A chattel mortgagee 
 having knowledge affecting him with notice 
 of the ownership of the property by a third 
 person cannot assert his claims as against the 
 rights of such third person: Bray v. Flick- 
 inger, 69-167. 
 
 103. Actual notice of a mortgage void for 
 uncertainty will not affect a person with 
 liens or claims thereunder : Barr v. Cannon, 
 69-20. 
 
 Further as to Notice, see that title. 
 
 104. Conflict of laws; mortgage in an- 
 other state: In determining the validity of 
 a chattel mortgage made in another state 
 upon property in that state, the courts will 
 follow the interpi'etation which the courts of 
 that state give to its statutes in relation to 
 the validity of such mortgages: Fisher v. 
 Friedman, 47-443. 
 
 105. A mortgage of personal property, 
 properly executed and recorded in another 
 state where the property is, has the same 
 force when the property is removed to this 
 state as under the laws of the state where 
 executed, and will be enforced here, and the 
 possession of the property by the mortgagor 
 beyond the time stipulated, against the con- 
 sent of the mortgagee, and in spite of his 
 efforts to recover it, will not defeat his rights 
 thereto : Simms v. McKee, 25-341. 
 
 106. , Consideration ; antecedent debt: A 
 mortgage given to secure an antecedent debt 
 is not without consideration as between the 
 parties, even though no extension of time or 
 other new consideration is given, and it will 
 be vaUd as against a subsequent assignment 
 for the benefit of creditors and claims as- 
 serted thereunder: Meyer v. Evans, 66-179. 
 
 107. Where at the time of the contracting 
 of a debt an agreement is made to give 
 security therefor by chattel mortgage upon 
 specified property upon the happening of a 
 contingency, the mortgage executed upon 
 the happening of such contingency will be 
 sujDported by a sufficient consideration: In 
 re Assignment of Guyer, 69-585. 
 
 As to when a chattel mortgage will be 
 deemed void as constituting a portion of a 
 general assignment not for the equal benefit 
 of creditors, see Assignment, V. 
 
 IV. Rights of parties. 
 
 a. Nature of respective interests. 
 
 108. Security: A chattel mortgage is but 
 a security for a debt: Torbertv. Hayden, 11- 
 435. 
 
 109. The legal title, so far as it is in the 
 mortgagee, exists for the purpose of enabling 
 him to enforce his lien ; the ownership re- 
 mains in the mortgagor. So held, where it 
 was sought, in an action to recover for a loss 
 under an insurance policy, to defend on the 
 ground that the policy, containing a clause 
 that it should be void if insured was not 
 "the sole and unconditional owner" of the 
 property, was avoided by the fact that the 
 property was covered by a chattel mortgage 
 at the time that the policy was issued : Hub- 
 bard V. Hartford F. Ins. Co., 88-325, 333, 
 341. 
 
CHATTEL MORTGAGES, IV, a. 
 
 243 
 
 Nature of respective interests. 
 
 110. Possession after condition broken: 
 
 Personal property becomes vested in the 
 mortgagee in possession, upon failure of the 
 mortgagor to perform the conditions of the 
 mortgage: Talbot v. De Forest, 3 G. Gr., 586. 
 
 111. Mortgagor's interest not subject to 
 levy: The mortgagee has the title and right 
 of possession, subject to be divested only on 
 performance of the condition, and the mort- 
 gagor has therefore no interest in the prop- 
 erty which can be seized and sold under exe- 
 cution: Campbell V. Leonard, 11-489; Gordon 
 V. Hardin, 33-550; VanslycJc v. Mills, 84^ 
 375 ; Porter v. Knight, 63-365. 
 
 112. Nor is such interest subject to levy 
 under attachment: Wells v. Sabeloivitz, 68- 
 238. 
 
 113. The reason of holding that the inter- 
 est of the mortgagor in the mortgaged prop- 
 erty cannot be levied on and sold under 
 execution is not that he has no interest 
 therein which could be appropriated in satis- 
 faction of his debts, but that the statutes of 
 the state have made no pi'ovision under 
 which his interest can be appropriated to that 
 object by judicial sale : Ibid. 
 
 114. If mortgagee has the right to take 
 possession, he may do so even after levy, and 
 leave no interest in the mortgagor subject to 
 levy : Wells v. Chapman, 59-658. 
 
 115. Where a contract creating a lien car- 
 ries with it the right to take jjossession, if, in 
 the exercise of this right, possession -is taken 
 forcibly and by violence, the mortgagee may 
 be liable for the injury done in thus taking pos- 
 session, but not for the value of the property 
 taken in accordance with the terms of the 
 agreement for the lien: Brown i'. Allen, 85-306. 
 
 116. Where the mortgagor of chattels 
 is in possession and has the right to posses- 
 sion of the mortgaged property for a definite 
 period, his interest prior to the expiration of 
 such period is the subject of levy and sale. 
 But it is otherwise when the mortgagee may 
 take possession at his pleasure, or where 
 the mortgagor's right of possession is for no 
 definite time : Rindskoff v. Lyman, 16-360. 
 
 [The rule is now changed by 31 G. A., ch. 
 117.] 
 
 117. Action by mortgagor for wrongful 
 seizure: The mortgagor of exempt personal 
 property may maintain an action for dam- 
 ages where the same has been vrrongfully 
 
 seized and sold upon execution : Evans v. St. 
 Paul Harvester Works, 63-204. 
 
 118. The fact that the legal title is deemed 
 to have passed to the mortgagee will not pre- 
 vent such action by the mortgagor as against 
 third persons wrongfully interfering with 
 the property in his hands : Ibid. 
 
 119. There is no presumption from the 
 mere fact that a chattel mortgage has been 
 given that the mortgagor is divested of thi; 
 right to the property covered by it, but that 
 question is to be determined by the stipular 
 tions contained in the instrument. Even 
 where the right of possession passes to the' 
 mortgagee, the mortgagor retains the righi 
 of redemption and the ownership until they 
 are extinguished by the foreclosure of the 
 mortgage ; and as against all the world ex- 
 cept the mortgagee, or those claiming under 
 him, the mortgagor is entitled to possession, 
 and may maintain an action of replevin as 
 against a person not claiming under the mort- 
 gage : Goldsmith v. Willson, 67-063. 
 
 120. Assignment of mortgagor's right: 
 An assignment by the mortgagor passes to 
 the assignee the interests of such mortgagor 
 in the property, and the assignee may main- 
 tain the same action for recovery of posses- 
 sion as against any one not holding under 
 the mortgage which the mortgagor niight 
 have maintained : Ibid. 
 
 121. The equity of redemption of the mort- 
 gagor of personal property after condition 
 broken is subject to sale or transfer as other 
 property, and passes under a general assign- 
 ment. After such general assignment the 
 assignee is not subject to garnishment in a 
 suit against the mortgagor: Gimhle v. Fer- 
 guson, 58-414. 
 
 122. Where, by agreement between mort- 
 gagor, mortgagee and an attaching creditor, 
 it was agreed that the mortgaged property be 
 sold in bulk, and the proceeds, after satisfy- 
 ing the mortgage, be applied upon the at- 
 tachment, held, that this agreement trans- 
 ferred the mortgagor's equity of redemption 
 and took priority over a subsequent attach- 
 ment of such proceeds by another creditor: 
 Phelps V. Winters, 59-561. 
 
 123. Possession by mortgagee: If posses- 
 sion is rightfully taken under a chattel mort- 
 gage, failure to sell the property cannot make 
 it wrongful : Bradley v. Redmond, 43-452. 
 
244 
 
 CHATTEL MORTGAGES, IV, a, b. 
 
 Respective interests. — Priority of lien. 
 
 124. If the mortgagee has a right to pos- 
 session, he is not bound to proceed by re- 
 plevin ; but, after demand, may bring action 
 for damages : Tieman v. Haw, 49-312. 
 
 125. Where the mortgagee seeks to recover 
 possession of the property by virtue of his 
 mortgage, he must recover on the strength 
 of his own right to the property, and, in the 
 absence of such right, cannot recover the 
 property on the ground that the defendant is 
 a mere trespasser : Eggert v. White, 59-464. 
 
 126. If the mortgagee, having the right 
 under the mortgage to take possession, ad- 
 vertise and sell, does actually take possession, 
 the owner cannot maintain an action for the 
 recovery of the property on account of fail- 
 ure to advertise or account for the surplus ; 
 his remedy is to redeem, or by some proper 
 proceeding compel sale according to the 
 terms of the mortgage : Whitaker v. Sigler, 
 44-419. 
 
 127. Sale: A mortgage of chattels with 
 power of sale confers no right upon the 
 mortgagee to exchange the mortgaged prop- 
 erty for other property, and the effect of 
 such a transaction would be merely to trans- 
 fer to the vendee the lien held by the mort- 
 gagee : Edwards v. Cottrell, 43-194. 
 
 128. A chattel mortgage invests the mort- 
 gagee with the title to the property, which 
 can only be defeated by a compliance with 
 the conditions of the mortgage, and upon a 
 failure to comply with those conditions, the 
 mortgagee becomes the absolute owner. If 
 a sale is made in good faith, and in conform- 
 ity with the provisions of the mortgage, it 
 passes the absolute title to the purchaser, al- 
 though he may be the mortgagee : Bean v. 
 Barney, 10-498. 
 
 129. Where, under a power of sale in a 
 chattel mortgage, the mortgaged property 
 was sold by one of the mortgagees, as 
 auctioneer, to a brother of his co-mortgagee 
 and partner, for about one-sixth of its cost, 
 held, that the purchaser took the property- 
 subject to the equity or right of redemption 
 in the mortgagor or junior mortgagee : Alger 
 V. Farley, 19-518. 
 
 130. Where property covered by a chattel 
 mortgage containing a power of sale has 
 been sold in such a manner that practical 
 certainty as to the proceeds is not attainable, 
 a court of equity wiU not ordinarily enter 
 
 into the field of speculation or probabilities 
 to ascertain the measure of damages, when 
 a reasonably certain measure is presented by 
 the positive evidence in the case : Ibid. 
 
 131. The mortgagee is not chargeable with 
 the expense of the return of the property to 
 the mortgagor, after it has been taken pos- 
 session of by the mortgagee for the particular 
 purpose of subjecting it to the payment of 
 mortgage indebtedness : Campbell v. Wheeler, 
 69-588. 
 
 132. Gfariiishmeiitof mortgagee: Amort- 
 gagor of personal property has a right to 
 redeem, even after condition broken, and the 
 mortgagee, although in possession after such 
 breach, is Uable to garnishment by creditors 
 of mortgagor for any surplus remaining in 
 his hands, in case of a sale of the property, 
 beyond what is necessary to pay his claim : 
 Doane v. Oarretson, 24-351. 
 
 133. A mortgagee of personal property not 
 in possession is not liable to garnishment for 
 such property, or the amount by which the 
 value thereof exceeds his claim: Curtis v, 
 JRaymond, 39-52 ; First Nat. Bank v. Perry, 
 29-366; Fountain v. Smith, 70 . 
 
 b. Priority of lien. 
 
 134. Over vendor: The mortgagee of chat- 
 tel property acquires a superior lien over that 
 of the vendor thereof for purchase money, 
 whose lien is not reduced to writing and re- 
 corded : Manny v. Woods, 38-265. 
 
 135. Purchase prici? of seed: The fact 
 that of two mortgages given upon crops to 
 be grown in the future the second one is for 
 the purchase price of the seed will not entitle 
 it to priority over the first : Bradley v. Gel- 
 kinson, 57-300. 
 
 136. Over landlord's lien: The lien of a 
 landlord upon chattel property of his tenant 
 used on the leased premises is inferior to that 
 of a mortgage thereon, executed and recorded 
 prior to the execution of the lease, even 
 though the mortgagee knowingly permits the 
 property to be used on the leased premises > 
 Jarchow V. Pickens, 51-381. 
 
 137. Possesslou of .iunior mortgagee: The 
 fact that a senior mortgagee allows a junior 
 mo:qtgagee to proceed to take possession of 
 the property and inciu: expenses in caring 
 for and disposing of it will not estop such 
 
CHATTEL MORTGAGES, IV, b. 
 
 245 
 
 Priority of lien. 
 
 senior mortgagee from asserting his prior 
 lien, if his mortgage is properly recorded and 
 the junior mortgagee has knowledge thereof: 
 Bradley v. Gelkinson, 57-300. 
 
 188. An officer who has wrongfully seized 
 mortgaged property in the possession of a 
 junior mortgagee cannot defend against an 
 action l:)y such inortgagee on the ground that 
 a senior mortgagee is entitled to possession. 
 The rights of the junior mortgagee in posses- 
 sion are good against all the woi^ld except the 
 senior mortgagee : Sperrij v. Ethridge, 70 . 
 
 139. Where A. agrees with two persons, B. 
 and 0.. that he will give each a mortgage 
 upon his stock of goods to cover money bor- 
 rowed from these persons, and both B. and 
 C. are ignorant that A. owes any one but 
 themselves, A. will have the right to give B. 
 the preference, and the first mortgage re- 
 corded by A. in favor of B. will be valid and 
 binding, and cannot be set aside by C, be- 
 cause he did not know that he was getting a 
 second mortgage, nor that A. had acted as he 
 agreed to do and given B. a mortgage and re- 
 corded it : Capital City Bank v. Hodgin, 24 
 Fed. Rep., 1. 
 
 140. Lien cannot be extended: The mort- 
 gagee cannot extend his mortgage to the pro- 
 tection of other creditors against a subse- 
 quent mortgagee without notice of the claims 
 attempted to be thus protected: Hunt v. 
 Daniels, 15-146. 
 
 141. Where the mortgagor caused a third 
 person to bid in the property for him at the 
 sale under the mortgage, and repaid to such 
 purchaser the amount of his bid with money 
 borrowed on a new chattel mortgage of the 
 property, held, that the whole transaction 
 amounted merely to an extinguishment of 
 the original mortgage, revesting mortgagor 
 with the title, and that the new mortgage 
 was subject to another mortgage which was 
 junior to the original mortgage but prior in 
 time to the new one : Kenierer v. Bloom, 65- 
 363. 
 
 142. Priority over claim of vendee before 
 delivery: Where a manufacturer of buggies 
 made a chattel mortgage upon buggies in 
 his possession not quite finished, held, that 
 the mortgagee acquired thereby a prior 
 claim to that of the person for whom one of 
 the buggies was being manufactured, and 
 ■who had advanced the purchase price thereof, 
 
 the chattel mortgagee having notice that the 
 buggy was being manufactured for such per- 
 son but not that the price had been paid-: 
 Hesser v. Wilson, 36-153. 
 
 143, Release ; duress: In a particular case, 
 held, that the release of a chattel mortgage 
 did not appear to be executed under fraud 
 and duress in such manner as to entitle it to 
 priority over a mortgage executed after 
 such release and intended by the party mak- 
 ing the release to be thus given priority: 
 Wood V. Wood, 61-256. 
 
 144. Confusion of goods: Where it ap- 
 pears that some of the property included in 
 the mortgage is stiU in the possession of 
 mortgagor, and it does not appear what, if 
 any, goods have been added to the stock, or 
 the value thereof, the mortgagee wiU be en- 
 titled to priority, it being impossible to say 
 that there are any goods which the mort- 
 gage does not cover: Odell v. Gallup, 63- 
 253. 
 
 14.}. Priority over assignment: If a, 
 mortgage is given in good faith, neither the 
 assignee of' the mortgagor for the benefit of 
 creditors nor the creditors can assert any 
 matter of defense against it which the mort- 
 gagor could not have asserted if the assign- 
 ment had not been made. Such parties have 
 no rights or equities in matters anterior to 
 the assignment, and the assignee is vested 
 with only such interest as the mortgagor had 
 in the property at the time of the assign- 
 ment, and the creditors for whose benefit the 
 assignment was made can have no higher in- 
 terest than that : Meyer v. Evans, 66-179. 
 
 14C. Rights of assignee of mortgage: 
 Where the purchaser of chattel property cov- 
 ered by a mortgage given to secure a number 
 of notes took with the assurance on the part 
 of the owner that certain of those notes held 
 by a third party were all that remained un- 
 paid, and the mortgage was subsequently 
 released by the mortgagee on the payment of 
 said notes, held, that an assignee of other such 
 notes which had not in fact been paid was 
 not precluded from enforcing them against 
 the property : Martindale v. Burch, 57-^91. 
 
 147. Taxes not being a Uen upon personal 
 property before distraint, a mortgagee who 
 takes possession of mortgaged property and 
 sells it before it is seized for taxes has a prior 
 claim on the proceeds over the claim of the 
 
24:6 
 
 CHATTEL MORTGAGES, V. 
 
 Foreclosure. 
 
 county for taxes against the mortgagor: 
 Maish V. Bird, 22 Fed. Rep., 180. 
 
 148. Discharge of lien: The renewal of a 
 note secured by a mortgage does not operate 
 as a discharge of the mortgage, and the exe- 
 cution of a second mortgage to secure the 
 indebtedness does not discharge the first un- 
 less by agreement of the parties : Hoffman v. 
 Wilhelm, 6S-510. 
 
 149. It is a general rule that a purchase by 
 the mortgagee of the mortgaged property 
 does not operate as an extinguishment of the 
 mortgage, when it is the intention to keep 
 the mortgage alive and it is the interest of 
 the mortgagee to keep it alive, and it can be 
 done without prejudice to the rights of the 
 mortgagee or third persons; but such rule 
 has no application to voluntary surrender or 
 discbarge of the mortgage, even though pro- 
 cured by fraud : Ibid. 
 
 150. Where a creditor was induced to sur- 
 render a chattel mortgage securing his claim, 
 and rely upon a levy of attachment upon the 
 same property, but subsequent to other levies, 
 held, that misrepresentations as to the value 
 of the goods would not be sufficient to render 
 such discharge void, and the mortgagee could 
 not afterwards claim priority over the other 
 attachments by reason of his mortgage: 
 Ibid. 
 
 V. FOBECLOSUEE. 
 
 151. By sale: In a particular case, held, 
 that the foreclosure of a chattel mortgage in 
 which the sale was in accordance with the 
 agreement between the parties, was valid, no 
 want of good faith on the part of the mort- 
 gagee being shown : Oear v. Schrei, 57-666. 
 
 152. A mortgagee does not lose his lien 
 upon the property by consenting to the sale 
 thereof by the mortgagor to a purchaser who 
 agrees to pay the portion of the mortgage 
 due, and the mortgage may be enforced 
 against a second purchaser having due notice 
 of the mortgage, although he had no knowl- 
 edge of the agreement of his vendor to pay 
 the same : Osivald v. Hayes, 42-104. 
 
 153. A party claiming to hold a prior in- 
 cumbrance should be allowed, on applica- 
 tion, to be made a parly to the foreclosure: 
 Parrott v. Hughes, 10-459. 
 
 154. Where a part of the chattels included 
 in the chattel mortgage have been sold, it 
 
 seems that the purchaser may require the 
 balance of the property to be exhausted before 
 taking the part sold, but he cannot require the 
 mortgagee to foreclose his mortgage before it 
 is due; and where he complains of negligence 
 of the mortgagee in allowing ether property 
 to escape, he must show, in order to entitle 
 himself to relief, that such property would 
 have been sufficient to satisfy the mortgage : 
 High V. Brown, 46-259. 
 
 155. Contesting sale: After a transfer of 
 the cause to court by injunction or otherwise 
 as authorized by Code, § 3317, in case it is 
 sought to contest the right to foreclose, the 
 case stands as a foreclosure in court, and 
 where usury is made to appear, a judgment 
 of forfeiture in favor of the school fund may 
 be rendered : Hanlin v. Parsons, 33-207. 
 
 156. The injunction is not to issue as a 
 matter of right where it is not necessary to 
 protect the rights of parties Interested, and 
 they have already adopted . another proceed- 
 ing affording a full and complete remedy : 
 Sweet V. Oliver, 56-744. 
 
 157. This provision does not prevent one 
 whose property is seized without shadow of 
 right, upon the pretense that it is covered by 
 the mortgage (as -where it has been, by valid 
 agreement, released from the mortgage at the 
 time of its purchase from the mortgagor), 
 from bringing an action at law to recover 
 the property : Black v. Howell, 56-630. 
 
 158. Personal judgment: Tlje mortgagee 
 is not precluded from recovery upon the 
 mortgage debt because he permits the prop- 
 erty covered by the mortgage to be sold for 
 an inferior claim or lien: Jones v. Turck, 
 38-246. 
 
 159. If, in the foreclosure proceeding, any 
 property be sold not covered by the mort- 
 gage, no title will pass by such sale, and 
 therefore injunction cannot be maintained 
 by a junior mortgagee to restrain the fore- 
 closure of a senior mortgage upon property 
 which it is claimed is not covered thereby : 
 Rankin v. Rankin, 67-323. 
 
 160. Under the circumstances of a par- 
 ticular case, held, that a sale under mortgage 
 was valid, and that the fact that the property 
 was by a previous appraisement higher than 
 by a subsequent one under which it was sold, 
 was not evidence of fraud: Tootle v. Taylor, 
 64-629. 
 
CIVIL RIGIiTS - COMMON LAW. 
 
 2:17 
 
 Miscellaneous. 
 
 161. A sale made under power to sell 
 given by the mortgage, without the posting 
 of notices as required by law, will not be in- 
 valid in such sense that it will not confer 
 title upon the purchaser, but it will pass a 
 perfect title to the property and the mort- 
 gagor will be divested of his right and inter- 
 est in it : Campbell v. Wheeler, 69-588. 
 
 162. Bedemptioii by creditor: A creditor 
 of the mortgagor may, before forfeiture, pay 
 the mortgage debt and levy upon the prop- 
 erty, or, if a forfeiture has taken place, he 
 may tender the amount, and, if refused, go 
 into chancery to redeem at any time before 
 the equity of redemption has been barred by 
 foreclosure, or he may garnish the mortgagee 
 for the value of the property in excess of the 
 debt secured : Torbert v. Hayden, 11-435. 
 
 163. When the debt secured by the mort- 
 gage is entirely paid off by a sale of a portion 
 of the property sufficient to pay the debt and 
 all costs connected with the sale, the right to 
 possession of the unsold portion of the prop- 
 erty ceases to exist either at law or in equity 
 against the mortgagor or his assignee : Landis 
 V. Abrahams, 11-284. 
 
 1G4-. In equity : A chattel mortgage may 
 also be foreclosed by an action in equity: 
 Paahard v. Kingman, 11-319. 
 
 CHURCH. 
 
 See Associations. 
 
 CITIZENSHIP. 
 
 See Aliens. 
 
 CIVIL BIGHTS. 
 
 1. The refusal of the owner of a skating 
 rink to permit any particular person, as for 
 instance a person of color, to enter and 
 enjoy the privileges of his rink, does not 
 give rise to a cause of action in behalf of the 
 person thus denied, although the rink is kept 
 open as a place of public amusement, it not 
 being shown that the business of operating it 
 is carried on under a license or privilege 
 granted by the state, or the municipal cor- 
 poration in which it is conducted, or that it 
 is in any manner regulated or governed by 
 
 any of the police regulations of the city: 
 Bowlin V. Lyon, 67-536. (But see 30 G. A., 
 oh. 105, which now forbids the denial to any 
 citizen of the full and equal enjoyment of 
 the accommodations, advantages, etc., of 
 inns, public conveyances, theaters, and other 
 places of amusement.) 
 
 CODE. 
 
 See Statutes. 
 
 COMMON LAW. 
 
 1. In Iowa: By the ordinance of 1787 the 
 benefits of the common law were extended 
 to the territory northwest of the Ohio river, 
 and the court can therefore take judicial 
 notice of the fact that the conamon law 
 exists in the states formed out of such terri- 
 tory: Holmes v. Mallett, Mor., 82. 
 
 2. The common law was substituted for 
 the civil in the territory of Missouri, of which 
 the state of Iowa was once a part : O'Ferrall 
 V. Simplot, 4-381. 
 
 3. Moreover, the ordinance of 1787 for the 
 government of the Northwest Territory made 
 the common law the law of that country, 
 and such ordinance extended over Wiscon- 
 sin, and the laws of Wisconsin were extended 
 over Iowa : Ibid. 
 
 i. Moreover, so many rights and titles, 
 so great interests, have grown up, by and 
 under the common law, that it would be the 
 duty of the court to hold that the people 
 brought it with them : Ibid. 
 
 5. Early English statutes: Although by 
 the act of 1840 it was provided that " no 
 statutes of Great Britain shall be considered 
 as law of this territory," held, that the term 
 " statutes of Great Britain" applied only to 
 statutes passed subsequently to the union of 
 England and Scotland in 1707, and not to 
 English statutes modifying the common law 
 passed previous to that time : Ibid. 
 
 6. The statute of 27 Elizabeth, designed to 
 protect subsequent good faith purchasers of 
 real estate against fraudulent or collusive 
 transfers, has never been re-enacted in this 
 state, but, as it antedates the settlement of 
 this country, it is part of our unwritten law : 
 Gardner v. Cole, 31-305. 
 
248 
 
 COMMON LAW — CONFLICT OF LAWS. 
 
 How far applicable. — Conveyance of real property. 
 
 7. As to crimes: Although there is no 
 statute declaring the common law in force in 
 this state, it is to be deemed in force without 
 such statutory declaration ; so it is held in 
 regai'd to common law definition of crimes 
 the punishment of which is provided for by 
 statute: State v. Twogood, 7-253. 
 
 8. While the statute does not expressly 
 adopt or repeal the common law, yet its prin- 
 ciples are recognized in the Code as well as 
 by our courts and are made the rules of de- 
 cision both in civil and criminal cases : Estes 
 V. Carter, 10-400. 
 
 9. How fai' applicable: A^^hile the com- 
 mon law is in force in this state, it is to be 
 regarded as in force only so far as it is ap- 
 pUcable to the habits and condition of our 
 society and in harmony with the genius and 
 spirit of our institutions ; and in determining 
 whether a particular principle harmonizes 
 with the spirit of our institutions, we must 
 look to the habits and condition of the society 
 which has created and lived under these in- 
 stitutions. In determining whether a partic- 
 ular rule of the unwritten law is applicable, 
 the court is not confined alone to considering 
 whether it is or is not agreeable to our pe- 
 culiar form of government : Wagner v. Bis- 
 sell, 3-396. 
 
 10. Thereforej held, that the common law 
 rule requiring the owner of cattle to keep 
 them upon his own premises under pen- 
 alty of being answerable in damages for in- 
 juries arising from their running at large, 
 is not conformable to the wants, condition 
 and situation of the people of the state, and, 
 although not expressly abrogated by legis- 
 lation upon the subject, is not in force: 
 Ibid. 
 
 11. Under the same principle, held, that 
 the statute de donis, being in its objects en- 
 tu-ely foreign to the genius and policy of our 
 institutions, is not in force in this state as a 
 part of the common law: Pierson v. Lane, 
 60-60. 
 
 12. Abrogation : When the legislature has 
 undei'taken to legislate upon a subject by 
 legal enactment, the common law is abro- 
 gated as far as applicable to such cases : State 
 V. McGrew, 11-112; Hamilton v. Schoen- 
 berger, 47-385. 
 
 13. Presumption: The presumption is that 
 a rule of law will be the same in another 
 
 state as in this state : Leiber v. Union Paeifia 
 R. Co., 49-688. 
 
 And further on this point, see EviDENCB, 
 §§ 563-506. 
 
 COMPROMISE. 
 
 See that title in Index. 
 
 CONDEMNATION PROCEEDINGS. 
 
 See Highways, II; Railways, IH; and 
 Waters. IV. 
 
 CONFLICT OP LAWS. 
 
 1. Conveyance of real property: The 
 
 vEilidity of transfers of real property is to be 
 determined by the law of the place where 
 the property is situated: Loving v. Pairo, 
 10-283 ; Doyle v. McGuire, 38-410. 
 
 2. This rule is applicable not only to the 
 manner or form of conveyances affecting 
 land, but to the rights of the parties thereto 
 and their capacity to contract. Therefore, 
 held, that a conveyance of land to the wife, 
 made in Pennsylvania as a satisfaction or 
 security for money advanced to the husband, 
 must be construed in accordance with the 
 laws of Iowa, where the land was situated: 
 Doyle V. McOuire, 38-410. 
 
 3. General assignment: The validity of a 
 general assignment, as affecting real property, 
 is to be determined by the law of the place 
 where the property is situated: Loving v. 
 Pairo, 10-283,- Moore v. Church, 70 . 
 
 4. Devise: The law of the place where the 
 property is situated governs as to the validity 
 of a devise of real property : Lynch v. Miller, 
 54^516 ; Ware v. Wisner, 4 McCrary, 66. 
 
 6. Law of the forum ; set-off: The law of 
 the place of suit governs in regard to matters 
 pertaining to the remedy. Therefore, the 
 question of set-off is to be determined by the 
 law of the forum and not that of the place 
 of contract : Savary v. Savary, 3-371. 
 
 6. Release: The effect of the release of 
 one partner upon the liability of a copartner 
 is to be determined by the law of the place 
 of suit and not by that of the place where it 
 was made : Seymour v. Butler, 8-304. 
 
 7. Remedy; .appraisement: The remedy 
 is to be administered according to the law of 
 
CONFLICT OF LAWS — CONSPIRACY. 
 
 249 
 
 Place of contract. — What constitutes. 
 
 the place where the action is enforced. 
 Therefore, held, that the appraisement laws 
 of the state where the property was situated 
 were to be applied, and not those of the 
 place where the contract was made : Sliaffer 
 V. Bolander, 4 G. Gr., 201. 
 
 8. Law of place of contract: Where a sale 
 and delivery of goods took place in one state 
 and notes in payment therefor were executed 
 by the buyer at his place of residence in 
 another state, and forwarded to the seller, 
 held, that the place of sale and delivery, and 
 not the place of executing the notes, was 
 the place of contract : Whitloek v. Workman, 
 15-351. 
 
 9. The law of the place where the contract 
 is made governs in enforcing and expound- 
 ing it, unless the parties provide for its ex- 
 ecution elsewhere, when the law of the latter 
 place controls : Arnold v. Potter, 22-194. 
 
 10. If the contract is made in one place to 
 be executed in another, the parties may stip- 
 ulate by which law it shall be governed, and 
 as to the rate of interest, etc. : Ibid. 
 
 11. Garnishment in another state: When 
 debtor and creditor are both residents of this 
 state the former may have an injunction 
 against the latter to restrain him from pro- 
 ceeding by garnishment in another state to 
 subject to the payment of his claim an in- 
 debtedness due to the debtor in this state 
 and exempt under the laws of this state: 
 Teager v. Landsley, 69-725 ; Hager v. Adams, 
 70 . 
 
 12. Fennl laws: The courts will not en- 
 force the penal laws of another state, but a 
 law of such state providing for the forfeit- 
 ure of interest in case of usurious contracts 
 is enf orcible : Arnold v. Potter, 23-194. 
 
 13. Action for injury causing death: The 
 right of action for an injury causing death 
 exists only by reason of the law of the place 
 of injury: Hyde v. Wabash, St. L. & P. R. 
 Co., 61-441. 
 
 And further, see Actions, g§ 80-83. 
 
 14. Contract of common carriers: Where 
 there is a conflict of laws applicable to the 
 case, the parties are presumed to have made 
 part of their agreement that law which is 
 most favorable to its validity and perform- 
 ance: TaTbott-v. Merchants' Dispatch, etc., 
 Co., 41-247. 
 
 15. A contract of affreightment made in 
 
 another state, for transportation of goods 
 from a point in that state to a point in this 
 state, will be recognized by our coui'ts if 
 valid where made, although it would be void 
 if executed and to be performed here; at 
 least this is true in an action in the courts' of 
 this state for the loss accruing under such 
 contract in an intermediate state in which 
 the contract would also be recognized as 
 valid: Ibid. 
 
 Presumptions: That the law of another 
 state, when it is called in question, if not 
 shown by evidence, will be presumed to be 
 the same as the law of this state, see Evi- 
 dence, §§ 563-566. 
 
 Lex loci, as affecting Bills and Notes, 
 see that title, §g 47-53. 
 
 As affecting Chattel Mortgages, see that 
 title, §§ 104, 105. 
 
 As affecting Contracts, see that title, 
 §§ 437-441. 
 
 CONSPIRACY. 
 
 1. Whatconstilntcs: Allegations that par- 
 ties conspired together to do a malicious act 
 cannot alone make a cause of action for dam- 
 ages where nothing unlawful has been done: 
 MoHenry v. Sneer, 56-649. 
 
 2. A conspiracy cannot be made the subject 
 of a civil action unless something is done 
 which, without the conspiracy, would give 
 a right of action: Jaynev. Drorbaugh, 63- 
 711. 
 
 3. Participation: It is not a sufficient de- 
 fense to a charge of conspiracy to show that 
 the participation of the party was not neces- 
 sary to the accomplishment of the purpose, 
 and that it would have been consummated 
 if he had not been a conspirator. He is to 
 be held responsible for the natural and ordi- 
 nary results of his acts, and if they were 
 such as to naturally and ordinarily produce 
 the unlawful result aimed at, he should be 
 held responsible : Green v. Cochran, 43-544. 
 
 4. In an action for malicious prosecution, 
 held, that the fact that defendants contrib- 
 uted money to the association of which they 
 were members, for the purpose of prosecut- 
 ing horse thieves, and that such money was 
 expended in the prosecution of the plaintiff, 
 was not sufficient to render the defendants 
 liable for malicious prosecution unless they 
 
-250 
 
 CONSTITUTIONAL LAW, I, a. 
 
 Protection of person and property.— Due process of law. 
 
 ^ded in the action of the association in mak- 
 ing such expenditures: Johnson v. Miller, 
 63-539. 
 
 As to admissibility of the testimony of co- 
 conspirators, see Evidence, §§ 258-266. 
 
 'As to the crime of conspiracy, see Criminal 
 Law, II, 3, c. 
 
 CONSTITUTIONAL LAW. 
 
 I. Provisions fob protection of per- 
 son AND property. 
 
 a. Due process of law. 
 
 b. Trial by jury. 
 
 c. Procedure in criminal prosecutions. 
 
 d. Equality of rights. 
 
 e. Establishment of religion. 
 
 f. Ex post facto laws. 
 
 g. Obligation of contracts; vested 
 
 rights; retroactive laws. 
 
 h. Taking private property for pub- 
 lic use. 
 
 i. Police power. 
 
 j. Taxation. 
 n. The elective franchise. 
 
 III. PowisRS of federal and state gov- 
 
 ernment. 
 
 IV. Division of power among respective 
 
 departments. 
 
 a. Executive department. 
 
 b. Legislative department. 
 
 c. Judicial department; declaring 
 
 statutes unconstitutional; effect. 
 V. Amendments. 
 
 As to counties and county seats, see Mu- 
 TficiPAL Corporations, §§ 779-802. 
 
 As to limitations upon state and municipal 
 indebtedness, see State, § 8, and Municipal 
 ■Corporations, §§ 155-186. 
 
 As to schools, school fund, etc., see 
 Schools. 
 
 As to regulations relating to Banks, see 
 that title. 
 
 As to elections, vacancies in ofSce, etc., 
 see Elections. 
 
 As to Statutes in general, see that title. 
 
 As to Courts, see that title. 
 
 I. Peovisions foe peotection of pee- 
 
 SON AKD PEOPEETY. 
 
 a. Due process of law. 
 
 1. What constitutes: The rule in respect to 
 due process of law, stated in a general way, 
 
 is that every one is entitled to the protection 
 of those fundamental principles of truth and 
 justice which lie at the basis of all our civil 
 and political institutions: Trustees of Cfris- 
 wold College v. Davenport, 65-638. 
 
 2. Due process of law means in the due 
 course of legal proceedings according to those 
 rules and forms which have been established 
 for the protection of private rights. It was 
 intended thereby to secure the individual 
 from the arbiti'ary exercise of the powers of 
 government unrestrained by the estabUshed 
 principles of private rights and distributive 
 justice : Foide v. Mann, 53-43. 
 
 3. Therefore, held, that the statutory pro- 
 vision limiting the remedy against a sheriff for 
 wrongful levy to a recovery on the indemnity 
 bond given by the plaintiff in execution was 
 void in so far as it defeated the right of the 
 person whose property was illegally taken to 
 sue for the specific recovery thereof : Ibid. 
 
 4. The statute requiring that before action 
 can be brouglit against an officer for wrong- 
 ful levy of a writ of execution upon property 
 of a person other than the one against whom 
 the writ is directed, notice of the rights of 
 such owner must be given to the officer in 
 writing, is not unconstitutional as depriving 
 the party of his property without due process 
 of law: Cheadle v. Guittar, 68-680. 
 
 5. A person may be deprived of property 
 by his own negligence. Also lapse of time 
 may prevent recovery by reason of the 
 statute of limitations, and existing remedies 
 may be taken away and new ones given, all 
 without infringement of due process of law : 
 Ibid. 
 
 6. The meaning of the phrases, "due pro- 
 cess of law," "due course of law," and 
 "course of the common law," discussed: 
 Mason v. Messenger, 17-261. 
 
 7. Partition proceedinss: Judgment in 
 proceedings for partition of property, brought 
 against a defendant served by publication 
 only, held not void as depriving the defend- 
 ant of his property without the benefit of 
 judicial proceedings according to the course 
 of the common law : Ibid. 
 
 8. The provisions authorizing a sale of 
 property in a partition suit when division 
 thereof cannot be made are not unconstitu- 
 tional as depriving the party of his property 
 without due process of law. When parties 
 
CONSTITUTIONAL LAW, I, a. 
 
 251 
 
 Due process of law. 
 
 by contract assume the relation of tenants in 
 common, the law fixes theu- respective rights, 
 one of which is that the property may be 
 divided, and, if necessary, sold to effect that 
 object : Metcalf v. Hoopingardner, 45-510. 
 
 9. The provisions of certain statutes of the 
 territories of Iowa and "Wisconsin providing 
 a method for partition of a tract of land, 
 known as the " half-breed tract," held, un- 
 constitutional as providing for proceedings 
 to determine private rights in a method not 
 in accordance with due course of law : Reed 
 V. Wright, 3 G. Gr., 15. 
 
 10. Proceedings in rem against lost goods 
 and property, and against estray animals and 
 a,gainst unknown owners of property, have 
 been too long sanctioned to be now called in 
 question as not being due process of law: 
 Kinney v. Roe, 10- . 
 
 11. Claim for improTements on land: A 
 statutory provision allowing a money judg- 
 ment for the value of improvements to be 
 rendered against the owner of the laud in 
 proceedings under the occupying claimant 
 law, held, unconstitutional as not constituting 
 due process of law : Childs v. Shower, 18-261. 
 
 12. A statute giving to anyone who drains 
 mineral land, even though without consent 
 of the owner, one-tenth of the mineral taken 
 therefrom, held, not unconstitutional as de- 
 priving the owner of his property without 
 due process of law: Ahem v. Dubuque, etc., 
 Mining Co., 48-140. 
 
 13. The short foreclosure of mortgages 
 on real property by notice and sale without 
 action in court as at one time allowed, held, 
 unconstitutional as depriving the owner of 
 his property without due process of law: 
 Thatcher v. Haun, 13-303. 
 
 14. But, under the constitution of 1846, 
 which did not contain the clause relating to 
 due process of law, held, that such a proceed- 
 ing was not unconstitutional : Boyd v. Ellis, 
 11-97. 
 
 15. A proceeding in equity should be 
 classed as due process of law: McLane v. 
 Leieht, 69-401. 
 
 16. Taxation: The state has the taxing 
 power, and where property is taken in the 
 valid exercise of that power, the owner is not 
 deprived of it without due process of law: 
 Allen V. Armstrong, 16-508. 
 
 17. But there are indispensable prerequi- 
 
 sites to the exercise of the'power which can- 
 not be omitted without violating the consti- 
 tutional provision as to due process of law : 
 Ibid. 
 
 18. Therefore, held, that the statute mak- 
 ing a tax deed conclusive of the regularity 
 of all prior proceedings was unconstitutional : 
 MeCready v. Sexton, 39-356, 390. 
 
 19. Due process of law means ordinary 
 judicial proceedings in court and has no ref- 
 erence whatever to the taxing power. Where 
 property is taken in the due exercise of that 
 power, it is not taken without due process of 
 law : Stewart v. Board of Supervisors, 3C-9. 
 
 20. Therefore, held, that the constitutional 
 provision wa? not violated by a law author- 
 izing local taxes in aid of railways : Ibid. 
 
 Further, as to constitutional power of taxa- 
 tion, see infra, %% 231-351. 
 
 21. Eminent domain: A party cannot 
 complain that his property has been taken 
 for public use without due process of law 
 when it has been taken for a highway by 
 proper proceedings and his claim for dam- 
 ages has been disallowed and he has not 
 taken the proper steps to have the disallow- 
 ance corrected on appeal : Tharp v. Witham, 
 65-566. 
 
 And further as to taking private property 
 for public use, see infra, I, h. 
 
 22. Contempt: A person cannot be impris- 
 oned in pursuance of an order of the court 
 in an investigation authorized by statute, but 
 unusual or unheard of at common law or 
 in the known and regular course of the ad- 
 ministration of the law through courts of 
 justice: Ex parte Grace, 13-208. 
 
 23. But the power to punish for contempt 
 without the intervention of a jury is not in 
 violation of due process of law : Ibid. 
 
 24. Under the chancery practice, as it ex- 
 isted at the time the constitution was adopted, 
 a person coukl be deprived of his liberty or 
 his property, and such deprivation has always 
 been regarded as having been accomplished 
 by due process of law, although no jury trial 
 was allowed. Therefore, held, that a statu- 
 tory provision not in accord with the com- 
 mon law, but more nearly like the proceed- 
 ing in chancery, by which a debtor may be 
 subjected to examination as to whether he 
 has property, not exempt from execution, 
 liable to the satisfaction of an execution 
 
252 
 
 CONSTITUTIONAL LAW, I, a, b. 
 
 Due process of law. — Trial by jury. 
 
 against him, and may be imprisoned for con- 
 tempt in not turning over such property to 
 apply on such indebtedness under order of 
 the court, was not in violation of the require- 
 ments of due process of law: Eikenberry v. 
 Edwards, 67-619. 
 
 25. Imprisonment for contempt for the vio- 
 lation of an injunction against maintaining 
 a nuisance is not involuntary servitude, 
 within the prohibition of the constitution: 
 Martin v. Blattner, 68-286. 
 
 2(). License: A. permit to sell intoxicating 
 liquors for lawful purposes, granted in pui-- 
 suance of statutory provisions not requiring 
 the payment of any compensation for such 
 privilege, is not property in such sense that 
 the party having the permit cannot be de- 
 prived thereof without due process of law : 
 State V. Schmidtz, 65-556. 
 
 27. Oilier cases: A statute authorizing 
 double damages in an action against a rail- 
 way company for stock killed through fail- 
 ure of the company to maintain a fence along 
 its track does not interfere with the consti- 
 tutional protection to property nor deprive 
 the company of its property without due 
 process of law : Mackie • v. Central R. of 
 Iowa, 54-540. 
 
 28. Proceedings by fence-viewers being 
 provided for by statute in the exercise of the 
 authority of the legislature to provide special 
 tribunals to determine the rights of the 
 parties under proper rules applicable thereto, 
 such provisions are not unconstitutional 
 although they may operate to deprive the 
 party of his property without the interven- 
 tion of judicial proceedings or without allow- 
 ing him a trial in court upon the facts passed 
 upon by such f ence- viewers : McKeever v. 
 Jenks, 59-300. 
 
 29. The provisions of the amendment to 
 the federal constitution guaranteeing due 
 process of law, etc., have no application 
 to the state courts except as expressly so 
 provided, but, in the absence of such express 
 provision, are merely restrictions upon the 
 federal government: Boyd v. Ellis, 11-97. 
 
 b. Trial by jury. 
 
 30. What constitutes: The right of trial 
 by jury implies a trial by jury of twelve 
 men except where the constitution author- 
 
 izes trial by a less number: Santo v. State, 
 3-165. 
 
 31. The jury contemplated by the consti- 
 tution is the jury recognized by the common 
 law, which is constituted of twelve persons, 
 and the legislature has no authority, in pro- 
 viding for jury trial under the constitution, 
 to provide for a less number than twelve 
 jurors. Therefore, held, that Code, g 2793, 
 authorizing a verdict by ten or eleven jurors, 
 when the jury has been reduced to that 
 number by sickness, is unconstitutional : EsTv- 
 elman v. Chicago, R. I. & P. R. Co., 67-296; 
 Kelsh V. Dyersville, 68-137. 
 
 32. It is immaterial that the party com- 
 plaining of the illegality of the jury is a mu- 
 nicipal corporation. Although it may be 
 that such a corporation has no constitutional 
 right to jury trial, yet the statute does not . 
 profess to make any special provisions for 
 such cases : Kelsh v. Dyersville, 68-137. 
 
 33. Less than twelve jurors in inferior 
 courts: As the constitution provides for a 
 trial by a less number of jurors than twelve 
 in inferior courts, and gives such inferior 
 courts jurisdiction of offenses of an inferior 
 grade, a trial in such a court of an offense 
 within its jurisdiction by a jury of less than 
 twelve is not a violation of the right of jury 
 trial : Bryan v. State, 4-349. 
 
 34. If, in the inferior tribunal, a party has 
 a trial before the constitutional jury provided 
 for such court, though of less than twelve 
 men, he cannot, of right, claim in the face 
 of the statute a second trial on the merits on 
 appeal to the district . court : Des Moines v. 
 Layman, 21-153. 
 
 35. A defendant accused of an offense tri- 
 able under the provisions of the constitution 
 before a justice of the peace by a jury of less 
 than twelve cannot complain of being de- 
 prived of the right of jury trial, even though 
 he is not allowed the right of trial by jury 
 on appeal to the district court : Baurose v. 
 State, 1-374. 
 
 36. The right to one jury trial is all that 
 is guarantied, and that is preserved by al- 
 lowing an appeal to the district court, where 
 the cause is to be tried anew by a jury: Zelle 
 V. McHenry, 51-572 ; State v. Beneke, 9-203. 
 
 37. Ordinance of 17S7: In so far as the 
 constitution of the state modifies the common 
 law right of trial by jury and authorizes trial 
 
CONSTITUTIONAL LAW, I, b. 
 
 253 
 
 Trial by jury. 
 
 by a jury of less than twelve in inferior 
 courts, it is an alteration of the provision 
 for jury trial found in the ordinance of 1787. 
 The admission of the state under the consti- 
 tution adopted by it amounted to an abroga- 
 tion by mutual consent of the provisions of 
 that ordinance in conflict therewith: Higgiiis 
 V. Farmer^ Ins. Co., 60-50. 
 
 38. In et[uity cases: The right of trial by 
 jury does not obtain in cases which are of 
 equitable cognizance : State v. Orwig, 25-280. 
 
 39. As cases of mutual account are sub- 
 jects of equitable jurisdiction, it is not un- 
 constitutional to provide for a compulsory 
 reference in such cases : Burt v. Harrah, 05- 
 643. 
 
 40. The provisions of the prohibitory liquor 
 law, allowing an injunction against persons 
 engaged in the illegal sale of uitoxicating 
 liquors, are not unconstitutional as depriving 
 defendant of the right of trial by jury. Such 
 cases being of equitable cognizance at the 
 time of the adoption of the constitution, and 
 the court of equity having jurisdiction at that 
 time to abate a nuisance, it is within the 
 power of the legislature to enlarge the juris- 
 diction of the court of equity in such cases 
 so as to allow that remedy even where prop- 
 erty rights are involved : Littleton v. Fritz, 
 65-488; Martin v. Blattner, 68-286. 
 
 41. So, the right of trial by jury is not im- 
 paired by the provision that foreclosure of 
 mortgages shall be by equitable proceedings, 
 and that in the same action a recovery may 
 be had on the note secured by the mortgage : 
 Olough V. Seay, 49-111. 
 
 45!. Trial de novo on appeal: By virtue of 
 the constitutional provisions as to jury trial, 
 and as to method of appeal in suits in equity, 
 every party has a right either to a trial by 
 jury or to a trial de novo on appeal: Sher- 
 wood V. Sherwood, 44-192. 
 
 43. References: Any provision authorizing 
 the reference of questions of fact in actions 
 by ordinary proceeslings, without the con- 
 sent of both parties, would be in violation of 
 the right of jui-y trial: McMartin v. Bing- 
 ham, 37-234; Blair Town Lot, etc., Co. v. 
 Walker, 50-876. 
 
 44. Judgment on stay bond: The statu- 
 tory provision giving to a stay bond the effect 
 of a judgment confessed against the parties 
 thereto is not objectionable as denying them 
 
 the right of trial, or depriving them of prop- 
 erty without due process of law. The bond 
 amounts to a waiver of the privilege which 
 it is competent for them to make : Cavender 
 V. Smith's Heirs, 5-157. 
 
 45. Appraisement of property taken for 
 public use: The appraisers appointed to as- 
 sess damages resulting to a land owner from 
 the establishment of a highway are not a 
 jury within the meaning of the constitu- 
 tional guaranty of jury trial, and, upon ap- 
 peal properly taken from their decision, such 
 owner is entitled to trial by jury : Sigafoos 
 V. Talbot, 25-314; and see DesMoines v. Lay- 
 man, 21-153. 
 
 4G. Contempt: A statute providing for 
 imprisonment of a debtor for contempt in 
 certain cases, where the object was to enforce 
 the payment of a debt by summary proceed- 
 ings, Jield, in conflict with the constitutional 
 provisions for j my trial: Ex parte Or ace, 13- 
 208. 
 
 And see supra, g§ 33-25. 
 
 4V. Jury fee: A provision requiring a 
 paity to pay a jury fee, or increasing the 
 jury fee, is not in conflict with the guaranty 
 of jury trial : Adae v. Zangs, 41-536 ; Steele 
 V. Central R. of Iowa, 43-109; Little v. 
 McGuire, 43-447 ; State v. Verwayne, 44r-631. 
 
 48. Waiver of jury trial: It was held 
 that in a criminal case the defendant might 
 waive his right to a trial by a jury of twelve 
 and consent to trial by a less number : State 
 V. Kaufman, 51-578. 
 
 49. But it was afterwards held that defend- 
 ant could not waive a jury trial in a crim- 
 inal case and consent to a trial by the court, 
 for the reason that such a form of trial in 
 a criminal case is not authorized by law: 
 State V. Carman, 63-130. 
 
 50. The right of jury trial in a civU case 
 is not an atti-ibute inalienable in its nature 
 and character, but rather a privilege, which 
 may be waived or forfeited: Willdnsv. Trey- 
 nor, 14^391. 
 
 51. Thus, it may be waived by failure of the 
 party to take proper steps to secure a trans- 
 fer of the cause from the equity docket to 
 the law docket, where by reason of the nature 
 of the case it properly belongs: Richmond 
 V. Dubuque & S. C. R. Co., 33-422, 490. 
 
 .'2. The provisions of the federal consti- 
 tution with reference to trial by jury have 
 
25J: 
 
 CONSTITUTIONAL LAW, I, c. 
 
 Procedure in criminal prosecutions. 
 
 no bearing on the question of the right of 
 trial by jury in the state courts : McLane v. 
 Leicht, 69-401. 
 
 c. Procedure in erim.inal prosecu- 
 tions. 
 
 53. Indictment: The constitutional pro- 
 vision that offenses of a cei-tain grade shall 
 be prosecuted only on indictment by a grand 
 jury does not limit the power of the legisla- 
 ture to prescribe the form and constituent 
 elements of 'an indictment, and authorize 
 one as good and suflBcient which would not 
 be so at common law : State v. Bevans, 37- 
 178. 
 
 54. The number of the grand jury is left 
 to legislative regulation : State v. Ostrander, 
 18-435. 
 
 55. The provision of the federal constitu- 
 tion, that no person shall be held to answer 
 for an infamous crime except upon indict- 
 ment, is applicable alone to the exercise of 
 power by the federal government, and is not 
 a restriction upon the legislative authority of 
 the state : State v. Wells, 46-662. 
 
 56. Form of accnsation: An indictment 
 for an offense, the punishment for which 
 does not exceed a fine of one hundi-ed dol- 
 lars or imprisonment for thirty days, is not 
 authorized, and all proceedings thereunder 
 are unauthorized and void : Wfxlters v. State, 
 5-507 ; State v. Kcehler, 6-398 ; State v. Sliaw- 
 beek, 7-323. 
 
 5 7. When a defendant is tried before a jus- 
 tice for an offense of which the justice has 
 not jurisdiction, the district court does not 
 acquire jurisdiction on appeal from the judg- 
 ment of the justice : State v. Carpenter, 23- 
 506. 
 
 58. Where defendant is indicted for an 
 indictable offense, but is found guilty of a 
 lesser degree thereof, or of an offense neces- 
 sarily included in the offense for which he is 
 indicted, he may be convicted and punished 
 for such lesser offense, although exclusive 
 jurisdiction thereof is given to a justice: 
 State V. Shepard, 10-126; State v. Jai-vis, 
 21-44; Orton v. State, 4 G. Gr., 140. 
 
 59. So, under an indictment for larceny, 
 charging the value of the goods stolen to be 
 more than twenty dollars, the district "court 
 has jurisdiction to try defendant and sen- 
 tence him, if found guilty, although the 
 
 jury find the value of the goods to be less 
 than that amount: State v. Stiiigley, 10-488. 
 
 60. And the question whether the offense 
 is triable as a misdemeanor or a felony is to 
 be determined by the value of the property 
 alleged in the indictment or information, and 
 not by the value ascertained by the verdict 
 of the jury : State v. Church, 8-252. 
 
 61. Right of appeal : The provisions of a 
 statute not now in force, giving the state as 
 well as defendant the right of appeal from 
 the judgment of a justice of the peace in a 
 criminal trial, held, not in conflict with the 
 constitutional provision saving to defendant 
 the right of trial by jury on appeal from a 
 justice of the peace in a criminal case: State 
 V. Tait, 22-140. 
 
 6'i. Extent of pnnisliment in justifes' 
 courts: Where an ordinance provided that, 
 in case of non-payment of a fine, defendant 
 should be imprisoned for a period of time 
 longer than that authorized by the constitu- 
 tion for imprisonment on conviction in an 
 inferior court, held, that the ordinance was 
 not void, but that it might be enforced up to 
 the limit of the punishment allowed : Keokuk 
 V. Dressell, 47-597. 
 
 63. The provision of a statute authorizing 
 the imposition of a fine of one hundred dol- 
 lars, and the imprisonment of defendant un- 
 til the fine and costs are paid, does not make 
 the case one which is beyond the jurisdiction 
 of the justice, although the length of impris- 
 onment for non-payment of fine and costs 
 may extend beyond tliirty days, the limit of 
 imprisonment which the justice may im- 
 pose. The imprisonment for non-payment of 
 fine and costs is not a punishment for the 
 crime, but a method of enforcing payment: 
 Albertson v. Kriechbaum, 65-11. 
 
 64. The provision that only offenses which 
 are punishable by fine not exceeding one 
 hundred dollars, or imprisonment not to ex- 
 ceed thirty days, are within the jurisdiction 
 of a justice, is not violated by allowing dif- 
 ferent offenses of the same kind by the same 
 peison to be joined in one information be- 
 fore a justice of the peace, although the ag- 
 gregate of the fines imposed under such 
 information may exceed one hundred dollars : 
 Jackson v. Boyd, 53-536. 
 
 65. Right to be confronted with -wit- 
 nesses: The constitutional privilege of de- 
 
CONSTITUTIONAL LAW, I, c. 
 
 255 
 
 Procedure in criminal prosecutions. 
 
 fendant in a criminal prosecution of being 
 confronted by the -witnesses against him has 
 no reference to record evidence, and in a 
 prosecution for bigamy, record evidence of 
 the first marriage of the defendant may be 
 introduced : State v. Matlock, 70 . 
 
 66. But this right is violated by allowing 
 the introduction of a certificate of a notary 
 public as to the fact that a bill of exchange 
 has been protested, when such fact is ma- 
 terial in establishing the guilt of the accused : 
 State V. Reidel, 26-430. 
 
 67. Depositions of witnesses, or minutes of 
 evidence on preliminary examinations, are 
 not admissible as against a defendant in a 
 criminal prosecution : State v. Collins, 33-36. 
 
 68. Where a deposition has been taten on 
 behalf of the prisoner and filed in court, it is 
 not error to allow the prosecuting attorney 
 to read the same in evidence, it not appearing 
 that the prisoner sought or desired to with- 
 draw it from the files before the trial of the 
 case: Nash v. State, 2 G. Gr., 286. 
 
 69. As defendant is entitled to be con- 
 fronted with the witnesses against him, if a 
 witness for the prosecution is subpoenaed 
 from another state and the costs are after- 
 wards taxed to the prosecution, such witness 
 should be paid by the county for the dis- 
 tance traveled outside the state as well as in 
 it : Westfall v. Madison County, 63-437. 
 
 70. This constitutional provision does not 
 give defendant the absolute right to have a 
 prisoner in the penitentiary or jail produced 
 as a witness. The order which the court is 
 authorized to make in such cases is discre- 
 tionary : State v. Kennedy, 80-373. 
 
 71. Dying declai-ations may be received 
 according to the rules of evidence without 
 violating this constitutional provision : State 
 V. Nash, 7-347, 377. 
 
 72. Waiver of privilege: The right to be 
 confronted by the witnesses against him is 
 personal with the accused and not jurisdic- 
 tional, and may be waived ; so held in a case 
 where, by consent of the accused, a written 
 transcript of the testimony taken on a former 
 trial was read to the jury in place of recall- 
 ing the witnesses themselves : State v. Pol- 
 son, 39-183 ; State v. Foohs, 65-453. 
 
 73. Excessive fine or unusual punish- 
 ment: The statutory provision making oflS- 
 cers of municipal corporations personally 
 
 liable for failure to levy a tax for the pui'pose 
 of paying ofif judgments, held, not unconsti- 
 tutional as imposing an excessive fine or an 
 unusual punislunent upon such oflficers for 
 breach of duty: Porter v. Thomson, 33-391. 
 
 74. The penalties provided for violation of 
 the intoxicating-liquor law (20 G. A., ch. 143),. 
 held, not excessive witliin the constitutional 
 provision: Martin v. Blattner, 68-286. 
 
 75. Eight to bail: Where a bail bond re- 
 cited that defendant was charged with " felo- 
 niously killing two persons," held, that, as 
 the offense was not necessarily punishable 
 with death, bail might be allowed and the 
 bond was not void : State v. Klingman, 14- 
 404. 
 
 76. A party charged with murder in the 
 second degree is entitled to bail: State v^ 
 Hufford, 23-579. 
 
 77. Former conviction or acquitt.il; 
 fraudulent : Wliere the former conviction or 
 acquittal was pi-ocured by collusion or fraud, 
 it may be treated as a nuUity and disre- 
 garded: State V. Green, 16-239. 
 
 78. What constitutes jcop-irdy: A dis- 
 missal of the proceedings, either by the court 
 or by the district attorney, after the trial has 
 commenced, unless in the cases authorized 
 by statute, will operate as an acquittal : State 
 V. Callendine, 8-288. 
 
 79. Although defendant is put upon trial 
 on a good indictment, yet if the verdict is so 
 defective that no judgment can be rendered 
 upon it, it may be set aside and defendant 
 again put on trial. The defective verdict wiU 
 not amount to an acquittal : State v. Red- 
 man, 17-329 : State v. Arthur, 31-323. 
 
 80. Where the names of the witnesses for 
 prosecution have not been indorsed on the 
 indictment, defendant may be required to 
 consent to their introduction, notwithstand- 
 ing the defect, or consent to a continuance, 
 but he has no right to ask a verdict nor insist 
 on the procedure as a former jeopardy when 
 again put on trial : State v. Parker, 66-586 ; 
 State V. Falconer, 70 . 
 
 Further as to former jeopardy, see Crimi- 
 nal Law, III, 11. 
 
 81. New trial on appeal from justice's 
 court: A defendant, acquitted before a jus- 
 tice of- the peace in a prosecution for a crime 
 over which the justice has jurisdiction, can- 
 not be again ti-ied upon an appeal to the dis- 
 
256 
 
 CONSTITUTIONAL LAW, I, d. 
 
 Equality of rights. 
 
 trict court, taken by the state, even though the 
 statute may so authorize: State v. VanHor- 
 ton, 26-403. 
 
 82. Conviction of lower degree : Where a 
 defendant has been convicted of a lower de- 
 gree of the offense than that for which he 
 was indicted and put upon trial, such convic- 
 tion operates as an acquittal of the degree for 
 which he was tried, and if he appeal and se- 
 cure a reversal, he cannot be again tried for 
 any higher offense, or higher degree of the 
 offense than that of which he was convicted : 
 State V. Tweedy, 11-350; State v. demons, 
 51-274. 
 
 83. Punitive damages, when awarded for 
 a criminal act, do not constitute a punish- 
 ment in such sense that one who should also 
 be criminally punished for the same act 
 would be twice put in jeopardy for the same 
 offense : Hendrickson v. Kingsbury, 21-379. 
 
 84. Searches anil seizures : A search war- 
 rant is not unreasonable in the legal sense 
 when it is for a thing obnoxious to the law, 
 and of a person and place particularly de- 
 scribed, and is issued on oath of probable 
 cause : Santo v. State, 3-165. 
 
 85. Therefore, held, that the statute author- 
 izing the issuance of a search warrant for the 
 seizure of intoxicating liquors is not uncon- 
 stitutional, as not requiring sufficient par- 
 ticularity in description, or as authorizing 
 unreasonable search and seizure : Ibid. 
 
 86. Description of the place held sufficient 
 in a particular case : State v. Thompson, 44r- 
 399. 
 
 Further as to Search Waeeajit, see that 
 title. 
 
 87. Haheas corpus: The right of appeal in 
 habeas corpus proceedings exists only as pro- 
 vided by law: In re Curley, 34-184. 
 
 d. Equality of rights. 
 
 As to uniformity of operation of laws, see 
 infra, %% 331-347. 
 
 88. Discrimination on account of color: 
 The constitutional provision guaranteeing 
 equality of rights forbids discrimination by a 
 common carrier against a passenger on ac- 
 count of color. Therefore, held, that a regu- 
 lation of a steamboat by which a colored 
 person was denied the privilege of a seat at 
 the table provided for passengers could not 
 
 be enforced: Coger v. Northwestern U. 
 Packet Co., 37-145. 
 
 89. Also, held, that colored children can- 
 not be excluded from the public schools, nor 
 compelled to attend a separate school : Clarle 
 V. Board of Directors, 34-266 ; Smith v. Di- 
 rectors, 40-518 ; Dove v. Independent School 
 Dist, 41-689. 
 
 90. Permits to sell lienors: The consti- 
 tutional guaranty as to equality of rights is 
 not violated by a statutory provision that 
 permits to sell intoxicating liquors shall only 
 be granted to persons of good moral charac- 
 ter : In re Ruth, 33-350. 
 
 91. Discriminations against corpora- 
 tions: An act providing a special method for 
 the taxation of the property of railway com- 
 panies, held, unconstitutional because not 
 made applicable to property of the same char- 
 acter owned by private individuals : Daven- 
 port V. Chicago, R. I. & P. R. Co., 38-633. 
 
 92. But a statute authorizing the recovery 
 of double damages for stock injured by a 
 railway company on its track where it has a 
 right to fence is not unconstitutional as de- 
 nying to any person the equal protection of 
 the law, such provision being intended merely 
 as a penalty for the purpose of inducing the 
 fencing of railroads: Tredway v. Sioux City 
 &St.P. R. Co., 48-537. 
 
 ■Uniformity of taxation, see infra, §g 335- 
 239. 
 
 93. Competency of witnesses: The con- 
 stitutional provision as to the competency of 
 witnesses renders competent as a witness for 
 the defendant in a criminal prosecution a 
 person who is jointly indicted with him for 
 the same crime but is put upon a separate 
 trial: State v, Nash, 10-81. 
 
 94. Even where such defendants are put 
 upon trial jointly, either one is entitled to 
 the testimony of his co-defendant : State v. 
 Gigher,23-Z13. • 
 
 95. The legislature may declare that in- 
 terest in the event of a suit may or may not 
 disqualify a witness, as shall be deemed 
 best ; and the statutory provision that hus- 
 band or wife shall not be a witness for or 
 against the other in a civil action to which 
 either of them is a party is upheld on that 
 gi-ound: Kamey v. Paisley, 13-89. But see, 
 also, Blake v. Graves, 18-813. 
 
 96. The provision as to the competency of 
 
CONSTITUTIONAL LAW, I, e, f, g. 
 
 257 
 
 Religion. — Ex post facto laws. — Obligation of contracts. 
 
 witnesses does not give a party tlie right to 
 the testimony of a child not possessed of 
 sufficient understanding, by reason of tender 
 years, to feel the obUgation of an oath : Kil- 
 burn V. Mullen, S3-498. 
 
 97. It is not a violation of any constitu- 
 tional privilege to provide that the credibility 
 of a witness may be afEected by the fact as 
 to his sensibility to the obligation of an oath : 
 Searcy v. Miller, 57-613. 
 
 e. Establishment of religion. 
 
 98. Exemption from taxation : The stat- 
 ute exempting church property from taxa- 
 tion is not in conflict with the constitutional 
 provision as to the establishment of religion : 
 Trustees of Oriswold College v. State, 46-375. 
 
 99. The use of a school-house for the pur- 
 pose of religious worship, when authorized 
 by a vote of the electors of the district, is not 
 prohibited : Davis v. Boget, 50-11. 
 
 100. Bible in the schools: The guaranty 
 of religious freedom is not violated by the 
 casual use of a public building as a place for 
 offering prayer and doing other acts of relig- 
 ious worship; and the statute allowing the 
 Bible to be used in public schools, with the 
 provision that no pupil shall be required to 
 read it contrary to the wishes of his parent 
 or guardian, is not unconstitutional: Moore 
 V. Monroe, 64^367. 
 
 f . & post facto laws. 
 
 101. Defined: An ex post facto law is one 
 which makes acts innocent when done crim- 
 inal, or if criminal when done aggravates the 
 crime, increases the punishment, or reduces 
 the measure of proof: State ex rel v. Squires, 
 26-340. 
 
 102. A.n ex post facto \&w is a retroactive 
 criminal law, and a, statute which does not 
 make an act already done a crime, although 
 it subjects the person guilty thereof to liabil- 
 ity, cannot be ex post facto: Polk County v. 
 Hierb, 87-361. 
 
 103. A change in the law by which petit 
 larceny was made cognizable only before a 
 justice of the peace and not upon indictment, 
 field, not to affect the statute as to the punish- 
 ment of larceny so as to prevent punishment, 
 under the statute, of grand larceny com- 
 
 VoL. 1 — 17 
 
 mitted prior to the taking effect of the 
 change : State v. Church, 8-253. 
 As to retroactive laws, see infra, §§ 159- 
 
 177. 
 
 g. Ohligation of cont/raotsj vested 
 rights; retroactive laws. 
 
 104. A state Ibankmpt law does prima 
 facie impair the obligation of contracts and 
 is unconstitutional and void, except in case 
 the debtor and creditor are domiciled in the 
 state where the discharge is granted and the 
 law was in existence at the time when 
 the contract was made : Collins v. Rodolph, 
 3 G. Gr., 399. 
 
 105. The appearance of a non-resident cred- 
 itor for the purpose of opposing the discharge 
 of the insolvent will not constitute a waiver 
 or abandonment of his exemption from the 
 effect of such discharge : Ibid. 
 
 IOC. A discharge under a state insolvent 
 law does not discharge a debt due to a citi- 
 zen of another state, no matter where the 
 debt was contracted or made payable, unless 
 the creditor has appeared and submitted to 
 the jurisdiction of the court by becoming a 
 party or claiming a dividend: Hawley v. 
 Hunt, 27-303. 
 
 107. Existing vendor's lien: The right to 
 a vendor's lien, arising by virtue of contract 
 of sale and conveyance without express res- 
 ervation thereof, at a time when such lien 
 was recognized, held, not to be affected by 
 subsequent legislation declaring that such a 
 lien should not be recognized or enforced 
 after conveyance by the vendee unless re- 
 served by conveyance, mortgage or other 
 instrument duly executed and recorded : Jor- 
 dan V. Wimer, 45-65. 
 
 108. Atlacliment: The actual service of 
 an attachment upon property creates a real 
 lien thereon which nothing subsequent can 
 destroy but the dissolution of the attach- 
 ment. Therefore, held, that an act exempt- 
 ing property of persons in the military serv- 
 ice of the United States from levy or sale 
 was not applicable to property already levied 
 on by attachment : Hannahs v. Felt, 15-141 ; 
 Ryan v. Wessels, 15-145. 
 
 109. Change in procedure: A change in 
 the statutory provisions relating to the lia- 
 bility of the wife's property for debts of the 
 
258 
 
 CONSTITUTIONAL LAW, I, g. 
 
 Obligation of contracts; vested rights; retroactive laws. 
 
 husband which diminished such liability, 
 held, not applicable to a contract entered into 
 before such change took place, although pro- 
 ceedings were not commenced nor the prop- 
 erty seized until after the change : Schmidt 
 V. Holtz, 44-446. 
 
 1)0. DoTver: The widow's right to dower 
 becomes vested at the time of the husband's 
 death and cannot be changed by a subse- 
 quent statute : Burke V. Barron, 8-133. 
 
 in. A statute increasing the extent of the 
 widow's dower right cannot be made to 
 operate against the purchaser of land con- 
 veyed by the husband before the tating 
 effect of the statute : Davis v. O'Ferrall, 4 
 G. Gr., 168. 
 
 112. Negotiability of bills and notes: 
 A statute attaching the attributes of nego- 
 tiability to instruments which have not been 
 previously negotiable, and thereby cutting 
 off defenses as against an innocent holder, 
 cannot be made applicable to contracts al- 
 ready in existence: Griffey v. Payne, Mor., 
 68; Harlan V. Sigler, Mor., 39. 
 
 113. But a provision that, in case of assign- 
 ment of such an instrument, suit may be 
 brought in the name of the assignee instead 
 of that of the original payee for the assignee's 
 benefit, merely affects the remedy and may 
 be applicable to assignments already made : 
 Harlan v. Sigler, Mor., 39. 
 
 114. Although the legislature is not pro- 
 hibited from changing the remedy on a con- 
 tract or the rules of evidence that shall be 
 brought to bear upon it, yet a statute au- 
 thorizing the defense of fraud to be set up as 
 against a bona fide holder for value of a 
 negotiable instrument acquiring the same 
 before maturity, can only apply to contracts 
 made after the taking effect of the statute : 
 Temple v. Hays, Mor., 9. 
 
 115. Effect of sealed instrument: The 
 statute allowing the want of consideration 
 to be pleaded in an action on a sealed instru- 
 ment does not impair the obligation of the 
 contract when applied to an instrument exe- 
 cuted out of the state, where the common 
 law rule making the seal conclusive as to the 
 consideration is in force: Williams v. 
 Haines, 37-251. 
 
 116. Corporate franchises; police regu- 
 lation of: While the legislature may not de- 
 prive a corporation of rights vested under its 
 
 charter without infringing an implied con- 
 tract between the state and the corporation 
 that there shall be no change in the laws ex- 
 isting at the time of incorporation which 
 shall render the use of the franchise more 
 burdensome or less remunerative, yet a cor- 
 poration caHnot complain of the passage of 
 statutes in the nature of police regulations, 
 although they may operate to its disad- 
 vantage : Rodemacher v. Milwaukee & St. P. 
 R. Co., 41-297. 
 
 117. Therefore, held, that the statute mak- 
 ing railway companies absolutely liable for 
 damages caused by fires set out by their en- 
 gines was not unconstitutional as applied to 
 railways previously chartered : Ibid. 
 
 118. The statute (21 G. A., ch. 76) requir- 
 ing foreign corporations doing business 
 within the state to file articles of incorpora- 
 tion with the auditor, and receive permits to 
 transact business, and subjecting them to 
 penalties for doing business without such 
 permit, held constitutional : Goodell v. Kriech- 
 baum, 70 . 
 
 119. Right of municipal corporation in 
 taxes levied: A municipal corporation ac- 
 quires a vested right in taxes already levied 
 under existing laws, which cannot be de- 
 stroyed by a subsequent statute releasing 
 property fronk the payment of such taxes: 
 Davenport v. Chicago. R. I. & P. R. Co., 
 3.8-633: Dubuque v. Illinois Cent. R. Co., 39- 
 56 ; Dubuque v. Chicago, D. & M. R. po., 47- 
 196. 
 
 120. Penalties on railroad taxes: While 
 penalties already accrued upon a tax in aid 
 of a railroad cannot be taken away by the 
 repeal of the statute under which the tax is 
 voted, there is no vested right in the contin- 
 uance of such penalties: Tobin v. Harts- 
 horn, 69-648. 
 
 121. Land dedicated to city for public 
 use: Where, by dedication, the title to prop- 
 erty is vested in a city for special public pur- 
 poses, the legislature cannot authorize the 
 city to sell the land in violation of such 
 trust: Warren v. Mayor of Lyons City, 22- 
 351. 
 
 122. Right to taxes not earned: A stat- 
 ute providing that taxes voted in aid of a 
 railway company should not be collected 
 until the company complied with the condi- 
 tions entitling it to receive such tax from the 
 
CONSTITUTIONAL LAW, I, g. 
 
 'I'oil 
 
 Obligation of contracts ; vested rights ; retroactive laws. 
 
 treasurer, held, not to interfere with vested 
 rights : Harwood v. Case, 37-693. 
 123. Bedemption and appr.iisementlaws: 
 
 An appraisement law providing that prop- 
 erty levied upon under execution can only 
 be sold at a certain proportion of the ap- 
 praised value is unconstitutional as applied 
 to contracts entered into before its passage. 
 The law in force when the contract is made 
 necessarily forms a part of the contract and 
 fixes the rights and obligations growing out 
 of it, and any substantial change in the law 
 of the remedy which shall lessen its efficiency 
 or burden it with any new conditions and 
 restrictions comes within the constitutional 
 prohibition: Rosier v. Hale, 10-470; Landis 
 V. Abrahams, 11-384. 
 
 12+. A law depriving a judgment debtor 
 of the right to have his property appraised, 
 or sold subject to redemption, is not uncon- 
 stitutional as impairing vested rights : Hol- 
 land V. Diekerson, 41-367 : Babcock v. Oumey, 
 43-154. 
 
 125. But a change in the law regulating 
 judicial sales, by which appraisement is al- 
 lowed in cases where the right before did not 
 exist, is unconstitutional in its application to 
 sales under judgments rendered upon con- 
 tracts made before the change in the law 
 took effect : Olmstead v. Kellogg, 47-460. 
 
 126. A law giving a right of redemption 
 from sales under foreclosure of mortgage in 
 cases where it did not exist at the time when 
 the mortgage was made, impairs the obhga- 
 tion of the contract and is unconstitutional : 
 Malony v. Fortune, 14r-417. 
 
 127. Valuation and appraisement laws in 
 general are not applicable to sales under 
 judgments existing prior to their enact- 
 ments: Burton v. Emerson, 4 G. Gr., 393. 
 
 128. A judgment is not a contract within 
 the provision of the constitution prohibiting 
 legislation impairing the obligation of con- 
 tracts, and valuation and appraisement laws 
 may be applicable to a judgment for costs 
 rendered before the enactment of such laws : 
 Sprott V. Seid, 3 G. Gr., 489. 
 
 129. Valuation laws, so far as they do not 
 impair the obligation of the contract, are 
 applicable to executions under a judg- 
 ment upon a contract entered into before 
 they take effect : Coriell v. Ham, 4 G. Gr. 
 455. 
 
 130. Laws affecting- the remedy: The leg- 
 islature has the power to change the remedy 
 and remedial proceedings upon contracts, 
 and as to them the law in force when the 
 remedy is pursued prevails unless there be 
 statutory provisions preserving the old rem- 
 edy. So lield as to the method of sale under 
 a judgment recovered after the change in 
 the law as to appraisements in an action 
 upon a contract made before such change: 
 BabcocJc V. Oumey, 43-154; Holland v. Diek- 
 erson, 41-367. 
 
 131. Statutes may constitutionally be en- 
 acted changing the remedy existing when 
 the contract is made, if they preserve exist- 
 ing remedies in substance and with integrity 
 and do not destroy or embarrass the rem- 
 edies existing when the contract is made so 
 as substantially to defeat the rights of a cred- 
 itor. A law merely limiting the amount of 
 the costs recoverable does not so affect the 
 remedy as substantially to defeat the rights 
 of a creditors. So held in regard to a statute 
 limiting the amount of attorneys' fees taxable 
 as costs : Kossuth County v. Wallace, 60-508. 
 
 132. A change in the statute regulating 
 the place of bringing action to foreclose a 
 mortgage by which the action is authorized 
 to be brought in the county where suit on 
 the note may be maintained instead of in the 
 county where the property is situated, is not 
 such a change in the remedy as to be uncon- 
 stitutional as to mortgages previously ex- 
 ecuted: Equitable L. Ins. Co. v. Gleason, 
 56-47. 
 
 133. A citizen has no vested rights in a 
 particular course of practice in the courts 
 nor to a particular remedy. Remedies are 
 within the control of the legislature, subject 
 to the restriction that the obligation of con- 
 tracts shall not be impaired and all remedy 
 for the enforcement of rights under a con- 
 tract shall not be taken away. Retrospective 
 laws which affect pending suits and give a 
 new remedy, modify an existing one, or re- 
 move the impediment in the way of a legal 
 proceeding, are not unconstitutional: Tilton 
 V. Swift, 40-78. 
 
 134. Rules of practice of a court cannot be 
 regarded as vested rights which may not be 
 modified by a subsequent statute. A party 
 has no vested right as to a particular course 
 of practice : Brotherton v. Brotherton, 41-112. 
 
260 
 
 CONSTITUTIONAL LAW, I, g. 
 
 Obligation of contracts ; vested rights ; retroactive laws. 
 
 135. A law which, by construction, gives 
 a new and more efficient remedy upon a con- 
 tract does not impair its obligation: Van 
 Metre v. Wolf, 37-341. 
 
 136. A change of statutory provisions re- 
 lating to the production of testimony may 
 be made applicable to suits before com- 
 menced : Womiley v. Hamburg, 40-23. 
 
 137. A retrospective statute, regulating 
 the remedy but not affecting subsequent 
 rights, is constitutional : Johnson v. Semple, 
 31-49. 
 
 138. So held as to a statute rendering a 
 motion for a new trial in an action at law 
 unnecessary in order to bring before the su- 
 preme court, on appeal, the question as to the 
 suiHcienoy of the evidence to support the 
 judgment: Ibid. 
 
 139. Proceedings are to be had in accord- 
 ance with the statutes in force, even though 
 they may have been passed subsequent to 
 the commencement of the action: Ballard 
 V. Ridgley, Mot., 27; Inghram v. Dooley, 
 Mor., 28. 
 
 140. Statutes of limitation relate to the 
 remedy and not to the substance of the 
 contract, and may therefore be made to op- 
 erate upon prior contracts without impairing 
 their obligations: Maltby v. Cooper, Mor., 59. 
 
 141. If' a substantial remedy is left for the 
 enforcement of the contract, the fact that by 
 the statute of limitations a particular action 
 for its enforcement is completely barred will 
 not render such a statute unconstitutional as 
 to existing contracts : Ibid. 
 
 142. The statute of limitations found in 
 Code of '51 and Rev. of '60, held, not uncon- 
 stitutional as impairing the obligation of con- 
 tracts, since the right to sue upon accrued 
 .causes of action was not cut off: Campbell v. 
 Long, 30-383. 
 
 143. Extending time for defending: Laws 
 which merely change the remedy are not 
 liable to constitutional objection, although 
 the remedy may be deemed less convenient 
 than the old one, and may in some degree 
 render the recovery of debts more tardy and 
 difacult ; but in altering the remedy the obli- 
 gation of the contract must not be so im- 
 paired that the rights of the party in it are 
 in effect destroyed or the remedy rendered 
 hardly worth pursuing by reason of being bur- 
 dened with new restrictions. Therefore, held, 
 
 that statutory provisions giving a defendant 
 who should be in the military service of the 
 United States, or of the state, the right to a 
 continuance in actions pending or afterwards 
 to be brought, did not impose on the remedy 
 such new burdens or restrictions as to im- 
 pair its benefit, and that therefore such 
 restriction was not unconstitutional as to 
 contracts already existing: McComiich v, 
 Susch, 15-137. 
 
 144. Extending time for bringing suit: 
 A law extending the time within which ac- 
 tion may be brought upon a contract is not 
 unconstitutional : Edwards v. McCaddon, 
 30-520. 
 
 145. Nor is an ^ct extending the time 
 within which a defendant might answer in 
 proceedings to foreclose a mortgage open to 
 such objection: Holloway v. Sherman, 12- 
 383. 
 
 146. Prohibition of action upon judg- 
 ment: The statutory provision prohibiting 
 an action upon a judgment within fifteen 
 years from its rendition, without leave of 
 the court, held, not unconstitutional when 
 applied to judgments rendered before its 
 passage, as impairing their obligation. Al- 
 though it takes away one remedy, it leaves 
 a complete one : Watts v. Everett, 47-269. 
 
 147. No vested right in pending ac- 
 tion: The bringing of a suit vests no right 
 to a particular decision, and the case must 
 be determined on the law as it stands when 
 the judgment is rendered : Huff v. Cook, 44- 
 639. 
 
 148. Right to hold office: Therefore,'where 
 a woman elected to the ofiice of county 
 superintendent was held unqualified to fill 
 that office, and subsequently a law was 
 passed providing that no person so elected 
 should be deprived of office by reason of sex, 
 held, that on appeal taken after the passage 
 of the act the statute would be given effect, 
 and the judgment of the court below was re- 
 versed: Ibid. 
 
 149. In the absence of any express consti- 
 tutional provision it is competent for the leg- 
 islature to abolish an office, increase or 
 decrease the duties devolving upon an incum- 
 bent, and add to or take away from him his 
 salary. It is also within the legislative power 
 to add to or change the method in which 
 vacancies may occur, and make such changes 
 
CONSTITUTIONAL LAW, I, 
 
 261 
 
 Obligation of contracts ; vested rights ; retroactive lavs^s. 
 
 applicable tp existing oflfices and those hold- 
 ing them: Bryan v. Oattell, 15-538. 
 
 150. Legral tender notes: The act of con- 
 gress making United States notes a legal 
 tender in payment of debts previously con- 
 tracted is constitutional : Wilson, v. Trihleeock, 
 33-331 ; Richmond v. Dubuque & S. C. R. Co., 
 83-432, 503. 
 
 151. Taxation: A change in the revenue 
 law as to the mode of enforcing a tax does 
 not impair the obligation of contracts : Haskel 
 V. Burlington, 30-233. 
 
 152. Exemption from taxation is not a 
 vested right, and may be taken away at the 
 wiU of the legislature : Shiner v. Jacobs, 63- 
 393. 
 
 The right of a municipal corporation to 
 taxes levied is a vested right : See infra, § 348. 
 
 153. License: A license to sell intoxicat- 
 ing liquors is not a contract between the 
 state and the person licensed, giving the 
 latter vested rights, but is a mere temporary 
 permit issued in the exercise of the police 
 power, and subject to the direction of govern- 
 ment, which may revoke it as it deems fit. 
 Such power of revocation may be exercised 
 by a municipal corporation where the license 
 has been issued by it under authority of law : 
 Columbus City v. Cutcomp, 61-673. 
 
 154. Divorce: A legislative divorce is not 
 a law impairing the obligation of contracts : 
 Levins v. Sleator, 3 G. Gr., 604. 
 
 155. The decision of a court declaring a 
 contract void is not unconstitutional as im- 
 pairing the obligation of contracts. So held 
 in case of bonds issued by counties in pay- 
 ment for stock in railroad companies, where 
 the bonds were held void : McClure v. Owen, 
 36-243; Railroad Co. v. McClure, 10 Wall., 
 511. 
 
 156. Change in judicial decision cannot be 
 allowed to render invalid contracts which, 
 when made, were held to be lawful : Thomp- 
 son V. Lee County, 3 Wall., 327. 
 
 15 7. Where a state has passed no law nor 
 put any construction upon any law impair- 
 ing the obligation of a contract then in exist- 
 ence, but changes its policy or construction 
 of the state constitution in regard to a class 
 of contracts, the validity of any one of that 
 class of contracts will be determined by the 
 law then in force : Railroad Co. v. McClure, 
 10 Wall., 511. 
 
 158. Subsequent contracts: A law en- 
 acted prior to the formation of a contract 
 cannot be objectionable as impairing the 
 obligation thereof: Davis v. Bronson, 6- 
 410. 
 
 159. Ketroactive laws: A constitutional 
 provision is not to be given a retrospective 
 operation unless the words employed show a 
 clear intention that it shall have that effect : 
 Burlington Ferry Co. v. Davis, 48-133. 
 
 160. Retrospective laws, as distinguished 
 from ex post facto laws, are not necessarily 
 unconstitutional : Iowa R. Land Co. v. Soper, 
 39-112, 117. 
 
 161. Legislation operating retrospectively, 
 to render binding and effective contracts be- 
 fore invalid, is not in conflict with the con- 
 stitution. It does not impair the obligation 
 of contracts, nor, as between the parties 
 thereto, disturb vested rights: Tilton v. 
 Swift, 40-78. 
 
 162. Legalizing acts: A legalizing act 
 merely operating to carry out the intent of 
 the parties, which would otherwise be de- 
 feated by formal defects, is valid : Smith v. 
 Callaghan, 66-553. 
 
 163. As the legislature might provide by 
 law that a conveyance should impart con- 
 structive notice without acknowledgment, so 
 it may by a curative act provide that de- 
 fective acknowledgments to instruments, 
 which have been duly recorded, shall be legal 
 and valid, notwithstanding such defects; 
 but such curative acts cannot affect rights of 
 third parties which have vested before their 
 passage: Brinton v. Seevers, 13-389; New- 
 man V. Samuels, 17-538; Ferguson v. Will- 
 iams, 58-717. 
 
 164. But held that such acts legalizing 
 conveyances defectively acknowledged were 
 applicable only to conveyances which, with- 
 out acknowledgment, would have been valid, 
 but not to instruments (as for instance deeds 
 of married women under the law as it then 
 stood) which, unless acknowledged in the 
 manner required, were void : Heaton v. Fry- 
 berger, 38-185. 
 
 165. A retrospective law authorizing an 
 act, or curing defects in a proceeding which 
 the legislature might have previously author- 
 ized, is not unconstitutional: McMillen v. 
 County Judge, 6-391 ; Huff v. Cook, 44-689. 
 
 166. Therefore an act legalizing the estab- 
 
262 
 
 CONSTITUTIONAL LAW, I, g, h. 
 
 Retroactive laws. — Taking jwivate ijroperty for public use. 
 
 lishment of a county road is not unconstitu- 
 tional : Bennett v. Fisher, 26-497. 
 
 167. A statute as to the method of en- 
 forcing the payment of taxes may be made 
 applicable to taxes delinquent at the time of 
 its passage, as well as those to become delin- 
 quent in the future : Sully v. Kuehl, 30-275. 
 
 168. In order to a rightful exercise of the 
 legislative power to cure a defective proceed- 
 ing, the legislature must have possessed the 
 power to authorize the result by a prior leg- 
 islative enactment ; but it is not necessary' 
 that it might have accomplished the result 
 in the precise manner adopted to cure the 
 defect ; nor is the power of the legislature to 
 cure defective proceedings limited by the 
 fact that but for such curative act the 
 defective proceeding would be wholly invalid 
 or inoperative : State ex rel. v. Squires, 38-340. 
 
 169. The power of the legislature to cure 
 defective or irregular proceedings is not lim- 
 ited by the fact that but for such curative 
 act the proceedings would be wholly inoper- 
 ative ; and held, that where the legislature 
 has the power to authorize by general law 
 the levy and collection of special taxes by 
 municipal corporations without limitation as 
 to rate, the legislature may rightfully legal- 
 ize levies made in excess of lawful authority : 
 Iowa R. Land Co. v. Soper, 39-112. 
 
 170. A law which purports to legalize an 
 act of a municipal corporation which it 
 had no lawful power to do, not in mere mat- 
 ter of form but in substance, is invalid, The 
 legislature cannot legalize the passage of an 
 ordinance which it could not specifically au- 
 thorize in the first instance: Independent 
 School Dist. V. Burlington, 60-500. 
 
 171. A valid curative act cannot be passed 
 where the act to be cured is prohibited by the 
 constitution : Mosher v. Independent School 
 Dist., 44-133. 
 
 172. While retrospective legislation may 
 be proper under some circumstances, held, 
 that a retrospective statute -s-alidating a deed 
 by the chairman and clerk of the boai'd of 
 supervisors of a county, conveying to a rail- 
 road company certain swamp land belonging 
 to the county, together with a cash indem- 
 nity to which the county was entitled from 
 the United States, such cash indemnity not 
 being included in the original contract of sale 
 of said swamp land to the railroad company 
 
 which the electors had approved as required 
 by law, was Invalid: Palmer v. Houxird 
 County, 45-61. 
 
 1 73. As the legislature cannot amend cor- 
 porate charters by special laws, it cannot 
 legalize the passage of an ordinance not au- 
 thorized by such charter : Stange v. Dubuque, 
 63-303. 
 
 1 74. But an act legalizing the action of a 
 county superintendent in attaching territory 
 of one district to another, not justified by the 
 circumstances so as to render the original ac- 
 tion valid under the statute, may be passed, 
 as no general statute could be made applica- 
 ble, and therefore the constitutional prohibi- 
 tion against special statutes does not apply : 
 Independent Dist. v. Independent Dist., 63- 
 616. 
 
 175. Where a note individual in form was 
 in fact given in payment for insurance of 
 school buildings, and was signed by the oiE- 
 cers of the school district with their individual 
 names, affixing the words '" President," 
 " Secretary " and " Director," held, tliat the 
 statute legalizing all contracts made by school 
 officers for insurance of school buildings as 
 well as evidence of indebtedness therefor, 
 and relieving the members from their in- 
 dividual liability, was not applicable : Ameri- 
 can Ins. Co. V. Stratton, 59-696. 
 
 176. If the legalizing act is invalid it will 
 not affect the former act : Lytle v. May, 49- 
 224. 
 
 As to ex post facto laws, see supra, §g 101- 
 103. 
 
 177. Re-enactment of statute: The obliga- 
 tion of contracts is not impaired by the re- 
 enactment of a statute in existence at the time 
 the contract was made : Bridgman v. Wileut, 
 4G. Gr., 563. 
 
 h. Taking 'private property for pvhlio 
 use. 
 
 178. >V!iat constitutes a taking; security: 
 
 The object of the provision requiring secu- 
 rity for compensation is to protect and com- 
 pensate the owner in case his land is entered 
 upon pending proceedings for an assessment 
 of its value, and if, after final determination 
 thereof and before payment of the damages 
 assessed, the occupancy of the land is aban- 
 doned, the owner's title and right of 
 
CONSTITUTIONAL LAW, I, h. 
 
 263 
 
 Taking private property for public use. 
 
 sion can be extinguished only by the pay- 
 ment of the damages assessed. Although 
 entry is permitted at once upon security being 
 given, such right of possession is but tem- 
 porary and permissive until the compensation 
 finally determined is paid. In case of failure 
 to perform the obligation and pay such com- 
 pensation, no right is acquired by the giving 
 of security ; and if the security given becomes 
 unavailing to the land owner by way of com- 
 pensation when the damages are finally as- 
 sessed, possession can be retaken by him 
 unless such compensation is paid: White v. 
 Wabash, St. L. & P. M. Co., 64-281. 
 
 179. Eminent domain: Power to take 
 private property for public use is one of the 
 fiovereign powers of the state. It is a neces- 
 sary attribute of sovereignty in the state, 
 rather than any reserved right in the grant 
 of property to the citizen : Noll v. Dubuque, 
 B. d- M. B. B. Co., 32-66. 
 
 ISO. Public use: The constitution pro- 
 hibits, by implication, the taking of private 
 propex'ty for anything but a public use. The 
 question as to when public exigencies de- 
 mand the exercise of the power is solely a 
 question for the legislature, upon whose de- 
 termination the courts cannot sit in judg- 
 ment ; but the question as to what is such a 
 public use as to justify the exei'cise of the 
 power, is for the courts. However, if a 
 public use be declared by the legislature, 
 the courts will hold such use public, unless 
 it manifestly appeal's from the provisions of 
 the act that it can have no tendency to ad- 
 vance or promote such public use : Banhhead 
 V. Brown, 35-540. 
 
 181. Therefore, held, that an act author- 
 izing the taking of private property for the 
 establishment of a private road was uncon- 
 stitutional: Ihid. 
 
 182. A statute providing for condemnation 
 of right of way for a public highway or rail- 
 way to mineral land, the right of way thus 
 condemned to be public, is not unconstitu- 
 tional : Phillips V. Watson, 63-28. 
 
 183. Right of way for railways: The use 
 may be a public one, though it be for private 
 profit, and hence the exercise of the power 
 of eminent domain in favor of raiboads, 
 mills, etc., is upheld: Stewart v. Board of 
 Supervisors, 30-9. But see Hanson v. Ver- 
 non, 37-28. 
 
 184. When a right of way is, by statute, 
 taken for the use of a railway company, it is 
 in contemplation of law taken by the state 
 for public use and not simply for the private 
 use of the company in whose behalf it is 
 taken, although the compensation be paid by 
 the company. The easement thus acquired 
 is in the nature of a grant from the state to 
 the company for the uses and purposes fixed 
 by law, and when the company fails to carry 
 out the purposes of the grant the state may 
 transfer the easement to another company 
 upon compensation being made to the f onaer 
 company: Noll v. Dubuque, B. & M. B. B. 
 Co., 33-66. 
 
 185. Mill dams: The statute allowing the 
 taking of private property for the purpose of 
 erecting mill dams is constitutional : Bum- 
 ham V. Thompson, 35-431. 
 
 186. Public highways: There is no doubt 
 of the power of the legislature to provide for 
 the condemnation of right of way for pubUc 
 highways upon notice by publication in news- 
 papers or by posted notices. The proceed- 
 ing is in the nature of a proceeding in rem 
 in which the court acquires jurisdiction of 
 the property which is the subject of the ad- 
 judication : Wihon v. Hathaway, 43-173. 
 
 187.. When the location of a road over a 
 party's land is changed, he should be allowed 
 compensation for the additional damage 
 caused by the change and no more : Israel v. 
 Jewett, 29-475. 
 
 188. Tacation of highway: Where a per- 
 son has only the right to the use of a high- 
 way which pertains to the general public, he 
 cannot maintain an action for damages by 
 reason of its vacation. Such proceeding is 
 not the taking of private property within the 
 constitutional provision : Ellsworth v. Chick- 
 asaw County, 40-571; Brady v. ShifiMe, 
 40-576. 
 
 189. Streets: The use of land for a street 
 is a public purpose for which it may be taken 
 upon rendering compensation, and the court 
 will not review the decision of the city au- 
 thorities holding that the public interests re- 
 quire a street to be established : Cherokee v. 
 Sioux City & I. F. Town Lot, etc., Co., 53-379. 
 
 190. Use of streets by railway: The leg- 
 islature may authorize the use of the streets 
 of a city by a railway company for the con- 
 struction and operation of its I'oad without 
 
264 
 
 CONSTITUTIONAL LAW, I, h. 
 
 Taking private property for public use. 
 
 compensation being made to the city or to 
 adjoining property owners. But the city 
 may have property acquired for other au- 
 thorized purposes, which could not be so 
 taken without compensation being made: 
 Clinton v. Cedar Rapids & M. B. B. Co., 
 24-455. 
 
 191. The statute authorizing a city to 
 grant to railroads right of way through its 
 streets upon condition that compensation 
 for damages be paid to abutting property 
 owners is twofold in its objects: first, to 
 secure to the city control over its streets; 
 and secondly, to secure to property owners 
 compensation for damages. And in a par- 
 ticular case, held, that although the first ob- 
 ject could not be accomplished, owing to 
 prior rights having been conferred by an- 
 other railroad upon the company in question, 
 nevertheless, the second object being a proper 
 one, the statute would be upheld as constitu- 
 tional: Brady v. Des Moines & Ft. D. B. Co., 
 57-393. 
 
 192. Improvement of streets: Levying a 
 tax upon property abutting upon a street, to 
 pave such street, is not an exercise of the 
 right of eminent domain, but of the power of 
 taxation : Warren v. Henly, 31-31. 
 
 193. The compensation provided by stat- 
 ute for damages resulting from changing the 
 grade of a street is not intended as compen- 
 sation for the taking of private property for 
 public use, and the constitutional provision 
 as to compensation has no application: Meyer 
 V. Burlington, 53-560. 
 
 194. Destrnction of buildings to stop 
 flres: An ordinance of a municipal corpora- 
 tion authorizing the destruction of buildings 
 to stop the spread of fire is not an exercise 
 of the power of eminent domain, but a reg- 
 ulation of the right which individuals pos- 
 sess to destroy private property in cases of 
 inevitable necessity: Field v. Des Moines, 
 39-575. 
 
 195. A city cannot exercise the right of 
 eminent domain except wlien that power is 
 expressly given : Ibid. 
 
 196. Prohibitory liquor law: The legis- 
 lature being the supreme judge and guardian 
 of the public health, safety, happiness, and 
 morals, may, if the traffic in certain prop- 
 erty is deemed detrimental or dangerous to 
 these public interests, prohibit it, and declare 
 
 that property illicitly held, kept, or used, 
 shall be forfeited and destroyed ; and such a 
 provision is not one authorizing the taking 
 of private property for public use : Santo v. 
 State, 3-165, 316. 
 
 197. The provision of the same statute 
 making the judgment for the wrongful sale 
 of intoxicating liquor a lien upon the prop- 
 erty in which the business is carried on is 
 not the taking thereof for public use : Polk 
 County V. Hierh, 87-361. 
 
 19S. The present statute prohibiting the 
 sale of intoxicating liquors (20 G. A., ch. 143) 
 cannot be said to unlawfully deprive the 
 owner of such property of his property with- 
 out compensation, at least unless it be made 
 to appear that such property was owned by 
 such party prior to the enactment of the 
 prohibitory statute of 1855 : McLane v. LevM, 
 69-401. 
 
 And further see iNTOXiOATiNa Liquors. 
 
 199. Just compensation: The provision 
 as to "just compensation" means that the 
 person whose property is taken for public use 
 shall have a fair equivalent in money for the 
 injury done him by such taking. This com- 
 pensation should be precisely commensurate 
 with the injury sustained from the taking of 
 the property : Sater v. Burlington, eta.. Plank 
 Road Co., 1-386; Henry v. Dubuque dsP. B. 
 Co., 3-388. 
 
 200. A payment of the damages assessed is a 
 condition precedent to the right to enter upon 
 and take the land under the right of way 
 act, and if the property is taken before such 
 compensation is made, the owner may pro- 
 ceed as against a trespasser : Henry v. Du- 
 buque & P. B. Co., 10-540; Daniels v. Chi- 
 cago & N. W. B. Co., 35-139. 
 
 201. The statutory provision allowing the 
 taking of property pending an appeal in the 
 condemnation proceeding is not unconstitu- 
 tional : Peterson v. Ferrehy, 30-337. 
 
 202. It is only when the damages are prop- 
 erly assessed that they are to be paid or se- 
 cured. The compensation must be ascer- 
 tained in the mode prescribed by law: 
 MeCrory v. Oriswold, 7-348. 
 
 203. If no damages are claimed, or if the 
 appraisers appointed in the manner pre- 
 scribed by law ascertain that the claimant is 
 entitled to no damages and no appeal is taken 
 from their decision, the property owner can- 
 
CONSTITUTIONAL LAW, I, i. 
 
 265 
 
 PoUce power. 
 
 not enjoin the condemnation of his property 
 on the ground that compensation has not 
 been made: Connolly v. Oriswold, 7-416; 
 Dunlap V. Pulley, 28-469; Abbott v. Board 
 of Supervisors, 36-354: Tharp v. Witham, 
 65-566. 
 
 204, Benefits: By special constitutional 
 provision, benefits to accrue to the property 
 from the proposed improvement are not to 
 be estimated : Deaton v. Polk County, 9-594 ; 
 Israel v. Jewett, 29-475. 
 
 205. Benefits to result from the construc- 
 tion of the improvement as well as from the 
 use thereof are to be excluded : Frederick v. 
 Shane, 32-254 ; Bland v. Hixenbaugh, 39-532. 
 
 20C. Therefore, in an action for damages 
 for breach of warranty by reason of the ex- 
 istence of a right of way upon land conveyed, 
 the advantages resulting from the construc- 
 tion of a railway upon such right of way 
 cannot be taken into account : Koestenbader 
 V. Peiroe, 41-204. 
 
 207, Advantages to the land resulting 
 from its better drainage wiU not be taken 
 into account in estimating the deterioration 
 in value by reason of the taking of a portion 
 thereof for the right of way of a railroad : 
 Britton v. Des Moines, O. & S. B. Co., 59- 
 540. 
 
 208, Assessment by jury: An assessment 
 of the damages by a jury of three persons 
 appointed as provided by statute is an assess- 
 ment by jury as required by the constitution : 
 Des Moines v. Layman, 31-153. But see, 
 contra, Sigafoos v. Talbot, 23-214. 
 
 209, A party cannot be deprived of his 
 property without provision for a judicial pro- 
 ceeding either originally or by appeal: 3a- 
 gatz V. Dubuque, 4-343. 
 
 i. Police power. 
 
 210, Extent of: The police power is very 
 extended in its application. It cannot au- 
 thorize the taking of the property of A. and 
 the vesting of it in B., for this the consti- 
 tution expressly prohibits ; but short of this 
 limit scarcely any restriction is imposed upon 
 it: Bodemacher v. Milwaukee & St. P. B. Co., 
 41-297. 
 
 211, Citizens of other states subject to: 
 All privileges of citizens of the United States 
 are subject to the pohce power of the state. 
 
 The fourteenth amendment was not intended 
 to limit the power of the states in this re- 
 spect : Martin v. Blattner, 68-286. 
 
 212, All property of the citizen is held 
 subject to the police power and other regular 
 tions which the legislature may provide for 
 the protection of the life and safety of the 
 people, and no right of property can inter- 
 vene to arrest the enforcement of penalties 
 for the violation of the criminal statutes of 
 the state : Ibid. 
 
 213, ReguLition of the sale of intoxicat- 
 ing liquors: The legislature may, in the ex- 
 ercise of its police power, provide that prop- 
 erty used with the consent or knowledge of 
 its owner for the sale or manufacture of in- 
 toxicating liquors in violation of law shall 
 be subject to the lien of any judgment ren- 
 dered against the person occupying the prop- 
 erty, on account of such illegal manufacture 
 or sale: Polk County v. Sierb, 37-361. 
 
 214, In a proceeding against property to 
 enforce a forfeiture for the improper use of 
 the premises for the sale of intoxicating liq- 
 uors, the premises may be proceeded against 
 for the abatement of the nuisance, even to 
 the extent of their destruction as provided by 
 law: Our Souse No..Sv. State, 4 G. Gr., 172. 
 
 215, The legislature may provide for li- 
 censing persons engaged in special pursuits, 
 and require the payment of a fee therefor by 
 the person to whom a license is granted: 
 Hildreth v. Crawford, 65-339. 
 
 216, But a license thus granted is not a 
 vested right. It is subject to revocation by 
 the authority granting it: Columbus City v. 
 Cutoomp, 61-672. 
 
 217, The state has the right and power to 
 prohibit the sale of intoxicating liquors as a 
 beverage: McLane v. Leicht, 69-401. 
 
 218, Regulation of commerce: The state, 
 by virtue of its police power, may enact all 
 such laws as are necessary or proper to pro- 
 tect its citizens iu their persons, lives and 
 property, and to guard them against frauds, 
 impositions and oppressions, even where such 
 laws may, in some respects, afiect persons or 
 corporations engaged in foreign or interstate 
 commerce ; but under this authority the state 
 cannot impose a burden upon such commerce 
 not within the necessary exercise of such 
 power : Council Bluffs v. Kansas City, St. J. 
 &C. B. B. Co., 45-338. 
 
266 
 
 CONSTITUTIONAL LAAV, I, j. 
 
 Taxation. 
 
 See further as to regulation of commerce, 
 infra, §§ 260-266. 
 
 210. Wharfage dues: In the exercise of 
 their police powers the cities of the state may 
 control the landings of boats and designate 
 places where they shall discharge freight and 
 isassengers. It is within theu- power to re- 
 quire this to be done at wharves erected by 
 them, and to charge a reasonable compensa- 
 tion therefor: J>iibuque v. Stout, 32-80; 
 Keokuk v. Keokuk N. L. Packet Co., 45-196. 
 
 220. Where a city has the exclusive right 
 under its charter to make wharves, collect 
 wharfage and regulate wharfage rates, it can, 
 consistently with the constitution of the 
 United States, charge and collect wharfage 
 jDroportioned to the tonnage of vessels from 
 owners of enrolled and licensed steamboats 
 mooring and landing at the wharves con- 
 structed on the banks of a navigable river. 
 Such an assessment is not a tonnage tax: 
 Packet Co. v. Keokuk, 95 U. S., 80. 
 
 j. Taxation. 
 
 221. Not tailing private property for 
 public use: Legitimate taxation is not the 
 taking of private property for public use 
 without compensation within the constitu- 
 tional provision. The protection afforded the 
 citizen by the government is the just com- 
 pensation required : Morford v. Unger, 8-82. 
 
 222. There are limits beyond which the 
 legislative discretion cannot go in subjecting 
 property to taxation, and while the judiciary 
 will not interpose in every case of injustice 
 or of oppression, yet this power may be so 
 unreasonably and unjustly exercised as to 
 amount to the taking of private property for 
 public use without compensation : Ibid. 
 
 223. An unreasonable extension of the 
 limits of an incorporated city, by which land 
 needed only for agricultural purposes is 
 brought within the city limits and subjected 
 to municipal taxation, without deriving any 
 a,dvantage from municipal control, is-uncon- 
 stitutional, even though it is provided that it 
 shall be assessed only at its value for agri- 
 cultural purposes : Ibid. ; Langworthy v. Du- 
 buque, 16-271. 
 
 224. But where property included within 
 an extension of the city limits was situated 
 within three hundred feet of the old limits, 
 
 and used for pork house, etc., and the streets 
 of the city were laid out and worked to and 
 beyond the property, and the surrounding 
 property was laid out into lots and blocks, 
 held, that the proceeding by which it was 
 brought within the city limits was not un- 
 constitutional : Butler V. Muscatine, 11-433. 
 And as to extension of city limits, see fur- 
 ther. Municipal Coepobations, g§ 491-508. 
 
 225. Compensation: While the right to 
 take private property for public use is condi- 
 tioned upon compensation, the taxing power 
 is not thus limited : Stewart v. Board of 
 Supervisors, 30-9. 
 
 226. A special participation in the benefits 
 of a particular tax on the part of the tax- 
 payer has nothing to do with the right to 
 impose the tax. The identical revenue col- 
 lected by the special tax may be used for pur- 
 poses from which the tax payers of whom it 
 was received derive no benefit: Warren v. 
 Henly, 31-31. 
 
 227. Not subject to judicial control: The 
 taxing power being one of the sovereign 
 powers vested in the general assembly by the 
 people, and not being limited either expressly 
 or by implication, the judicial power pos- 
 sesses no authority to limit it : Ibid. 
 
 228. Tax in aid of railroad: The imposi- 
 tion of a tax to aid in the construction of a 
 railroad is an exercise of the taxing power 
 for a public purpose: Stewart v. Board of 
 Supervisors, 30-9 ; Chicago, M. & St. P. B. 
 Co. V. Shea, 67-728. But see, contra, Han- 
 son V. Vernon, 27-28. 
 
 Further, see Railroads, I. 
 
 229. Taxation of corporations: The con- 
 stitutional provision that property of corpo- 
 rations for pecuniary profit shall be subject 
 to taxation the same as that of individuals, 
 requires the legislature to provide for the 
 taxation of such property the same as private 
 property, and an act releasing such property 
 from city taxes is void : Davenport v. Chi- 
 cago, B. I. & P. B. Co., 38-633, 642; Dubuque 
 V. Illinois Cent. B. Co., 39-56. And see Iowa 
 R. Land Co. v. Woodbury County, 39-172. 
 
 230. A statute relating to the taxation of 
 expi'ess and telegraph companies, held not in 
 violation of the constitutional provision as to 
 taxation of the property of corporations, for 
 the reason that it made such property liable 
 to taxation in the same manner and to the 
 
CONSTITUTIONAL LAW, I, j. 
 
 '/G't 
 
 Taxation. 
 
 same extent when held by individuals as 
 when held by a body corporate: United 
 ■States Ex. Co. v. Ellyson, 28-370. 
 
 231. Railroad property: So held, also, as 
 to a statute regulating the taxation of rail- 
 road property : Dubuque v. Chicago, D. & M. 
 E. Co., 47-196. 
 
 232. No constitutional rights are infringed 
 by providing a different method for assess- 
 ing railroad property than that provided for 
 assessing property of the same nature be- 
 longing to other owners: Central Iowa R. 
 Co. v. Board of Supervisors, 67-199. 
 
 233. As to taxation of railroad property 
 in general, see Davenport v. Mississippi 
 .& M. R. Co. 16-348 ; Dubuque & S. C. R. 
 ■Co. V. Dubuque, 17-120. 
 
 See, also, Taxation, g§ 158-175. 
 
 234. Taxation of water-works: The fact 
 that a company operating water-works is 
 exempted from taxation in part payment for 
 water furnished the city does not render 
 "the provision a violation of the constitu- 
 tional requirement as to taxation of corpo- 
 Tate property : Grant v. Davenport, 36-396. 
 
 235. TJiiiformity of taxation: The re- 
 :Strictiou upon the power of taxation that 
 taxes must be uniform is applicable generally 
 to the principle or plan of taxation, and not 
 to specific or particular taxes. It means that 
 all individuals and all classes shall be uni- 
 formly taxed, and that all must contrib- 
 ute uniformly with lilce individuals and 
 like classes to these burdens. The manner 
 ■of imposing the burden must of necessity be 
 left to the discretion of the legislative branch 
 ■of the government : Warren v. Henly, 31-31. 
 
 236. Special taxes for improvement of 
 .streets : Therefore, held, that the levying of 
 -a special tax upon abutting property for the 
 improvement of a street by a municipal cor- 
 poration was a proper exercise of the taxing 
 power: Ibid. 
 
 237. While it is competent for the legis- 
 lature to tax any given species of property 
 ■to the entire value of the property itself, yet, 
 it is not competent for the legislature to pro- 
 vide for improvements upon the property of 
 another against his will or without his con- 
 sent (for instance, by the erection of side- 
 walks), and make him liable beyond the 
 value of the property, or personally liable 
 "to any extent : Buell v. Ball, 20-282. 
 
 238. Double taxation: The fact that a 
 statute subjects property to double taxa- 
 tion will not necessarily render it invalid, 
 although it would excite the disfavor of the 
 courts : United States Ex. Co. v. Ellyson, 28- 
 370; Western Union Tel. Co. v. Ellyson, 
 28-380. 
 
 239. Money and credits of non-residents: 
 A statute subjecting to taxation in this state 
 moneys and credits belonging to a non-resi- 
 dent, but under the control and management 
 of an agent in the state, is not unconstitu- 
 tional as providing for the taking of private 
 property for public use without compensa- 
 tion : Hutchinson v. Board of Equalization, 
 66-35. 
 
 240. Notice; special assessments: The 
 rule that a citizen shall not be arbitrarily de- 
 prived of his property renders it illegal to 
 enforce against such property a tax as to the 
 assessment and levy of which the property 
 owner has had no notice nor opportunity to 
 be heard in pursuance of general statute or 
 special provision: Gatch v. Des Moines, 63- 
 718. 
 
 241. Property cannot be taken for the 
 payment of taxes under a special assessment 
 made without notice to the property owner 
 and opportunity to be heard, at least where 
 the assessment is made under a statute or 
 ordinance providing for assessment accord- 
 ing to benefits : Trustees of Griswold College 
 V. Davenport, 65-683. 
 
 242. So held where a city council was 
 charged with the duty of determining 
 whether any part of the cost of constructing 
 a sewer should be paid out of the general 
 revenues, and if so, what part, the balance 
 being payable by special assessment upon 
 abutting property : Ibid. 
 
 243. Judicial proceeding: Courts are not 
 necessary to taxation, and it is generally 
 agreed that property taken for non-payment 
 of taxes is not taken without due process of 
 law, if the tax payer is afforded an oppor- 
 tunity to be heard in relation to the tax, 
 though it be only before the officer clothed 
 with power to assess : Ibid. 
 
 244. If there is any ground upon which a 
 tax can be upheld, which has been levied 
 without notice to the tax payer and without 
 an opportunity to be heard, it is incumbent 
 upon the party claiming its validity to show 
 
268 
 
 CONSTITUTIONAL LAW, II, III. 
 
 The elective franchise. — Powers of federal and state governments. 
 
 that the notice would have been unavailing : 
 Auer V. Dubuque, 65-650. 
 
 245. At no time, nor in any court, nor be- 
 fore any tribunal or oflEicer, has the tax payer 
 the right to have a constitutional jury im- 
 paneled for the purpose of determining the 
 rate of the levy or the assessable value of his 
 property : Davis v. Clinton, 55-549 ; Dunlieth, 
 etc., Bridge Co. v. Dubuque County, 55-558. 
 
 246. An act legalizing taxes which are 
 invalid because in excess of authority, but 
 which the legislature has power to authorize, 
 does not interfere with vested rights: Iowa 
 R. Land Co. v. Soper, 39-113. 
 
 247. Power of city to tax: The legislature 
 may confer on a city council the power to 
 tax transient merchants: Mt. Pleasant v. 
 Clutch, 6-546. 
 
 But no such provision can be made as to 
 merchants who are not residents of the state 
 which is not equally applicable to residents : 
 Infra, § 267. 
 
 248. Vested right in taxes levied: A 
 municipal corporation authorized to levy 
 taxes acquires a right in taxes levied, and 
 cannot be deprived of such right by subse- 
 quent legislation releasing the property from 
 such taxes : Burlington v. Burlington & M. 
 R. R. Co., 41-134; Dubuque v. Illinois Cent. 
 R. Co., 39-56; Independent Dist. v. Inde- 
 pendent Dist., 63-616. 
 
 249. Exemption from taxation: Church 
 property may be exempted from taxation 
 without a violation of constitutional provis- 
 ions against the establishment of religion, 
 etc. : Trustees of Griswold College v. State, 
 46-375. 
 
 250. An exemption from taxation is not a 
 vested right, but may be taken away by 
 statute : Shiner v. Jacobs, 63-393. 
 
 251. Federal taxation of state offlcial 
 bonds: The provisions of the act of congress 
 requiring the stamping of official bonds of 
 state officers, held, not unconstitutional, as 
 authorizing the taxation of the agencies of 
 the state government by federal authority : 
 Muscatine v. Sterneman, 30-536. 
 
 II. The elective eeanchise. 
 
 252. The registry laws: The constitution 
 confers upon persons possessing the qualifi- 
 cations mentioned therein the right to vote, 
 which right cannot be impaired by legisla- 
 
 tion. But the legislature may regulate the 
 exercise of the right, and provide a method 
 for determining whether persons propos- 
 ing to vote possess the requned qualifica- 
 tions. A registry law is therefore not un- 
 constitutional : Edmonds v. Banbury, 38-267. 
 
 253. Persons in militar.v service: A stat- 
 ute providing that citizens of the state in the 
 military service should have a right to vote 
 at all elections authorized by law, whether 
 at the time of voting they were within or 
 without the state, and providing for the 
 opening of poUs and holding of elections 
 wherever a regiment or battalion of Iowa 
 troops was stationed, held, not unconstitu- 
 tional: Morrison V. Springer, 15-304. 
 
 254. Residence: Where a student entered 
 the state university at Iowa City while still a 
 minor, making his father's home in another 
 county his residence during vacations, and 
 receiving support from his father, without 
 having any definite intention of making Iowa 
 City his home after graduation, held, that 
 he was not a resident of the county in which 
 he was attending school, so as to be entitled 
 to vote there on coming of age: Vanderpoel 
 V. aHanlon, 53-346. 
 
 255. If a person has actually removed to 
 another place with the intention of remain- 
 ing there for an indefinite time, and making 
 it a place of fixed residence or present domi- 
 cile, it is to be regarded as his domicile, not- 
 withstanding he may entertain a floating 
 intention to return at some future time. The 
 place where a married man's family resides 
 is generally to be considered his domicile : 
 State V. Groome, 10-808. 
 
 III. POWEES OF FEDEEAL AND STATE 
 GOVEENMENTS. 
 
 256. State cannot be sned; maudamns 
 against public ofllc'er cannot be maintained 
 to compel him to act in his official capacity 
 connected with the liability of the govern- 
 ment, unless the government itself is liable 
 and the officer has improperly refused to act. 
 He cannot be compelled to execute a con- 
 tract fixing a liability upon the government : 
 Chance v. Temple, 1-179, 301. 
 
 267. The doctrine that the king can do no 
 wrong does not mean that the sovereignty, 
 through its officers, cannot be guilty of tort, 
 
CONSTITUTIONAL LAW, III. 
 
 269 
 
 Powers of federal and state governments. 
 
 but only that the redress must be voluntary 
 and cannot be coerced: Metz v. Soule, 40- 
 236. 
 
 258. Allowance of claim: Where a peti- 
 tion is presented to the legislative depart- 
 ment, asking redress for injuries alleged to 
 have been caused to petitioner by wrongful 
 acts of the officers of the state, and a statute 
 is passed for his relief, it must be presumed 
 that liability on the part of the state was 
 recognized, and compensation made in satis- 
 faction thereof. It is not to be presumed 
 that the act was passed out of mere charity, 
 without recognition of the fact that an in- 
 jury was done for which the state ought to 
 make redress : Ibid. 
 
 259. Bankruptcy laws: The national 
 bankruptcy law of 1867 did not operate to 
 wholly suspend state insolvent laws, and the 
 exercise of jurisdiction under the state law 
 was valid, certainly, until the jurisdiction of 
 the federal courts was called into exercise : 
 Heed V. Taylor, 33-209. 
 
 260. Interstate commerce: Upon certain 
 subjects pertaining to commerce the states, 
 in the absence of congressional enactments, 
 roay adopt regulations, but when congress 
 has assumed to act upon such subjects, a 
 state enactment conflicting thei-ewith cannot 
 be enforced. Therefore, held, that certain 
 state statutes respecting the transfer of 
 freight, passengers, etc., from railways 
 within the state terminating at a certain 
 point, to connecting railway's, was void as in 
 conflict with acts of congi-ess authorizing 
 connecting railways to form continuous lines : 
 Council Bluffs v. Kansas City,. St. J. <Sc C. 
 B. R. Co., 45-338. 
 
 261. Any regulation of the transportation 
 of interstate commerce, whether upon the 
 high seas or lakes or rivers, or upon rail- 
 roads or other artificial channels of com- 
 munication, operates as a regulation of com- 
 merce itself : Ihid. 
 
 262. A state statute assuming to control 
 and regulate shipments of freight from a 
 point within to a point without the state 
 under an entire contract is an interference 
 with the power of the federal government to 
 regulate interstate commerce, and therefore 
 unconstitutional : Carton v. Illinois Cent. R. 
 Co., 59-148; Kaeiser v. Illinois Cent. R. Co., 
 5 McCrary, 496. 
 
 263. The railroad commission is not au- 
 thorized to prescribe that rates of transporta- 
 tion from a point without to a point within 
 the state should conform to the rate for a like 
 distance within the state: State v. Chicago 
 &N. TF. iJ. Co., 70 . 
 
 2G4. A statute (31 G. A., ch. 76) requu-ing 
 foreign railvsray corporations and other for- 
 eign corporations to procure permits from the 
 auditor of the state before doing business 
 within the state, and subjecting them to 
 penalties for doing business without such 
 permit, held, not to be unconstitutional as 
 a regulation of interstate commerce : Good- 
 ell V. Kriechbaum, 70 . 
 
 265. A statute requiring railway compa- 
 nies to fix once each year their rates of 
 freight and passenger tariff and post a 
 schedule of the same at each station, and 
 providing a penalty for wilful violation of 
 such statute, or for charging a greater rate 
 than those fixed, held, to be a police regula- 
 tion only and not a regulation of commerce, 
 and therefore not unconstitutional as applied 
 to transportation from a point within to a 
 point without the state : Fuller v. Chicago & 
 N. W. R. Co., 31-187; Railroad Co. v. Fuller, 
 17WaU., 560. 
 
 266. A statute prohibiting corporations en- 
 gaged in transporting goods or passengers 
 between different states from limiting their 
 liability as common carriers by contract is 
 not a regulation of interstate commerce so as 
 to be unconstitutional as applied to a con- 
 tract for transportation from a point within 
 to a point without the state : Hart v. Chicago 
 &N. W. R. Co., 69-485. 
 
 267. License tax on non-resident mer- 
 chants: A city ordinance imposing a license 
 tax upon transient merchants and peddlers 
 who are non-residents, which is not imposed 
 upon persons who reside in the state, is 
 unconstitutional: Marshalltown v. Blum, 
 58-184 : Pacific Junction v. Dyer, 64^38. 
 
 268. Taxation of telegraph and express 
 companies: While it is not competent for 
 the states by taxation, direct or indirect, to 
 interfere with interstate commerce, yet the 
 property employed therein is not therefore 
 free from taxation. It can be taxed as prop- 
 erty but not as a business. So held as to a 
 statute providing for the taxation of telegraph 
 and express companies: United States Ex. 
 
270 
 
 CONSTITUTIONAL LAW, III, IV, a. 
 
 Powers of governments. — Division of power among departments. 
 
 Co. V. EUyson, 28-370 ; Western Union Tel. 
 Co. V. EUyson, 38-380. 
 
 2e0. Liquor laws: Laws regulating the 
 sale of intoxicating liquors are police regula- 
 tions, and are not unconstitutional as an im- 
 proper regulation of interstate commerce, 
 although they permit the sale of wine from 
 native fruit and prohibit the "sale of that 
 manufactured from fruit grown outside of 
 the state : State v. Stucker, 58-496. 
 
 270. The state may prohibit the sale of 
 spirits as a police regulation, excepting only 
 the importer of foreign spirits selling in the 
 original quantities imported : Santo v. State, 
 2-165, 203. 
 
 271. Wharfage dues: The provisions of 
 the constitution and of the ordinance of 1787, 
 prohibiting states from taxing interstate 
 commerce, or abridging the free use of the 
 Mississippi river, are not violated by munici- 
 pal charters and ordinances providing for 
 the erection of wharves by cities on the 
 Mississippi river, and the charge of reason- 
 able compensation for their use : Keokuk v. 
 Keokuk N. L. Packet Co., 45-196. 
 
 272. Tonnage dues: Neither are such char- 
 ters and ordinances unconstitutional as allow- 
 ing tonnage dues, even though the wharfage 
 fees are made dependent upon the tonnage of 
 the vessels : Ibid. 
 
 273. The state as stockholder in corpora- 
 tion : The provision in the state constitution 
 that the state shall not become a stockholder 
 in any corporation is not violated by author- 
 izing aid to be voted by counties of the state 
 towards the construction of a railway: Du- 
 buque County V. Dubuque <fc P. ij. Co., 4 G. 
 Gv., 1. 
 
 274. An act making an appropriation to a 
 corporation to assist it in testing the validity 
 of the barb wire patents, held, not unconsti- 
 tutional under the same provision: Mer- 
 chants' Union Barb Wire Co. v. Brown, 64r- 
 375. 
 
 275. A treaty and an act of congress be- 
 ing each the supreme law of the land, a sub- 
 sequent act of congress will repeal a previous 
 treaty in the same way that a previous stat- 
 ute would be thereby repealed : Webster v. 
 Beid, Mor., 467. 
 
 27G. Federal limitations not applicable 
 to states: The limitations in the federal con- 
 stitution apply to the federal government 
 
 and not to the states unless it is expressly so 
 provided: Boyd v. Ellis, 11-97; State v. 
 Wells, 46-663; AlcLanev. Leicht, 69-401. 
 
 IV. Division of power among ee- 
 
 SPEOTIVE DEPAETMBNTS. 
 
 a. Executive department. 
 
 277. Suspension of other state ollicersi 
 
 The statutory provision for the suspension 
 by the governor of other officers elected by 
 the people is not unconstitutional: Brown, v. 
 Duffus, 66-193. 
 
 278. Mandamns against executive oflicerr 
 It is not in violation of the constitutional 
 provision that the different departments are 
 independent and separate, to allow a court 
 to call in question the action of an officer of 
 the executive department, as, for instance, 
 by compelling the auditor of state by manda- 
 mus to issue a warrant for the payment of 
 the salary of an officer, where the auditor has. 
 refused to act : Bryan v. Cattell, 15-538. 
 
 279. Extra sessions: Although the execu- 
 tive is authorized on extraordinary occasions 
 to convene the general assembly by procla- 
 mation, and state to it, when assembled, the 
 purpose for which it is convened, yet when 
 thus convened it has full legislative authority, 
 and is not confined in its action to the special 
 purpose Tor which it is called: Morford v. 
 Unger, 8-83. 
 
 280. Approval of bills: An act is not 
 passed by the legislature until it is approved 
 by the governor, who, for such purpose, is a 
 part of the legislature : United States v. Fan- 
 ning, Mor., 348. 
 
 281. In case a bill is submitted to the gov- 
 ernor for his approval during the last three 
 days of a session of the general assembly, 
 and he neither signs nor returns it with ob- 
 jections before the adjournment, it becomes 
 a law only in case he subsequently approves 
 it ; and the filing of the bill within the thirty 
 days mentioned, with the secretary of state, 
 without approval or disapproval, will not 
 give it the effect of a law : Darling v. Boesch, 
 67-703. 
 
 282. The fact that a law passed thirty- four 
 years previously did not bear the signature 
 of the governor, held not sufficient to render 
 the act void. The presumption would be that 
 
CONSTITUTIONAL LAW, IV, b. 
 
 271 
 
 Power of departments. — Legislative. 
 
 the act became a law by failure of the 
 governor to return it within proper time 
 after its- presentation to him : Collins v. 
 Lauder. 45-703. 
 
 283. The copy or certificate, in the printed 
 acts, of the approval by the governor is but 
 evidence of the fact and is not essential in 
 order that the act may take effect. It is the 
 approval of the original bill filed in the 
 office of the secretary of state which is re- 
 quired to give the act validity: Dishon v. 
 Smith, 10-213. 
 
 b. Legislative department. 
 
 284. General scope of power: In ascer- 
 taining the power of the legislature under 
 the constitution, the courts look not at what 
 the instrument authorizes but at what is 
 prohibited: McMillenv. County Judge, 6-Sdl. 
 
 285. The legislature possesses sovereign 
 legislative power over all subjects except 
 such as are prohibited to it in the state con- 
 stitution: Boydv. Ellis, 11-97. 
 
 286. The general assembly possesses all 
 legislative authority not delegated to the 
 general government or prohibited by the con- 
 stitution. The constitution, as applied to the 
 legislative department, is a limitation and 
 not a grant of power : Morrison v. Springer, 
 15-304. And see State v. Hookett, 70 . 
 
 28 7. The rule in construing the state con- 
 stitution is, that the state legislature may 
 exerciJe all rightful legislative powers which 
 are not expressly prohibited or necessarily 
 included in the prohibited powers : Purezell 
 V. Smidt, 21-540. 
 
 288. All the legislative authority inherent 
 in the people is vested in the general assem- 
 bly, and the legislative power of the general 
 assambly is therefore supreme, except as it is 
 bounded by the limitations written in the 
 constitution : Stewart v. Board of Supervis- 
 ors, 30-9, 18. 
 
 289. The power of legislation is vested in 
 general terms in the general assembly, and 
 thereby there is conferred upon that body the 
 authority to legislate upon all rightful sub- 
 jects, unless prohibited from so doing ex- 
 pressly or by clear implication : Davenport v. 
 Chicago, B. I. & P. R. Co., 38-633. 
 
 290. The theory of the constitution is that 
 all powers not vested in the general assembly 
 
 remain in the state : State ex rel. v. Wapello 
 County, 13-388. 
 
 291. There is, as it were, back of the con- 
 stitution, an unwritten constitution which 
 guaranties and well protects all the absolute 
 rights of the people. (Per Beck, J.): Sanson 
 V. Vernon, 27-28, 73. 
 
 292. While the constitution vests the legis- 
 lative power in the general assembly and it 
 may legislate on all subjects not prohibited 
 by express words or necessary implication, 
 yet under the constitutional provision plac- 
 ing the educational interests of the state un- 
 der the management of a board of education 
 authorized to legislate and make all needful 
 rules and regulations in relation to schools,. 
 held, that the power to legislate on such sub- 
 ject was thereby denied to the legislature: 
 District T'p v. Dubuque, 7-263. 
 
 293. Legislative divorces: Under the 
 terms of the organic law providing "that the 
 legislative power of the territory shall extend 
 to all rightful subjects of legislation," held, 
 that the -territorial legislature was invested 
 with as much power as is usually vested in 
 an unrestrained legislative body, and that 
 such power included the power to grant leg- 
 islative divorces, even where the grounds for 
 divorce were not such as to entitle the party 
 to relief in the courts : Levins v. Sleator, 3 
 G. Gr., 604. (But under the state constitu- 
 tion, art. Ill, § 27, legislative divorces cannot 
 now be granted.) 
 
 294. The taxing power being one of the 
 sovereign powers of the state vested in the 
 general assembly, and not being limited by 
 the constitution as to the kinds or classes of 
 property subject to taxation, the general as- 
 sembly has general legislative authority to 
 subject all kinds and classes of property to 
 taxes for all proper purposes : Davenport v. 
 Chicago, E. I. & P. R. Co., 38-633. 
 
 295. It being within the proper scope of 
 legislative authority to pass general laws for 
 the levy and assessment of taxes, the passage 
 of a general law curing and legalizing the levy 
 and collection of taxes irregularly or illegally 
 levied is also an exercise of legislative author- 
 ity and not an encroachment upon judicial 
 power: Iowa R. Land Co. v. Soper, 39- 
 112. 
 
 And further as to taxation, see supra^ 
 g§ 221-351. 
 
272 
 
 CONSTITUTIONAL LAW, IV, b. 
 
 Power of departments. — Legislative. 
 
 296. Judicial reTislon of legislatiye ac- 
 tion: Where the legislative authority re- 
 serves to itself the power to act under certain 
 circumstances, the existence of such circum- 
 stances is to be determined by it, and a court 
 cannot call into question the propriety of its 
 action : Miners' Bank v. United States, 1 G. 
 Gr., 533. 
 
 297. The judicial branch of the govern- 
 ment has no power to determine whether an 
 act of the legislative branch is wise or un- 
 wise, nor has it power to declare an act void 
 except in cases where the statute in question 
 is plainly, palpably, and without doubt, re- 
 pugnant to some provision of the constitu- 
 tion: Merchants' Union Barb Wire Co. v. 
 Brown, 64-375. 
 
 And further, as to when the courts will 
 hold a legislative act unconstitutional, see 
 infra, §§ 368-385. 
 
 298. Delegation of legislatiye power: 
 The legislative authority being vested in the 
 general assembly, it is not competent for it 
 to submit the question whether an act shall 
 become a law to the vote of the people. 
 Therefore, held, that a statute providing for 
 the submission to vote, in each county, of the 
 question as to whether a prohibitory liquor 
 law should be in force in that county, was 
 unconstitutional, and that the act itself was 
 in force throughout the state without such 
 submission: Santo v. State, 3-165, 203; State 
 V. Beneke, 9-203. 
 
 299. So the license act of 1857, containing 
 a provision that the prohibitory law of 1855 
 should not be repealed in any county except 
 by a vote of the people of that county, was 
 held unconstitutional : Geebrick v. State, 5- 
 491. 
 
 300. Held, also, that a statute providing 
 for the submission to vote in each county of 
 the question whether a previous prohibitory 
 liquor law allowing the sale of wine and 
 beer should be repealed within that county, 
 and the sale of wine and beer prohibited, 
 was unconstitutional : State v. Weir, 83-134. 
 
 301. Held, also, that a statute which pro- 
 hibited stock from running at large, and was 
 a valid enactment in itself, but contained a 
 section providing that the act should not be 
 enforced in any county until adopted by the 
 electors of that county, was in force through- 
 out the state without any such submission to 
 
 vote, the provision for a submission being un- 
 constitutional : Weir v. Cram, 37-649. 
 
 302. But a statute allowing the county 
 judge to submit to vote in each county the 
 question whether sheep and swine should be 
 allowed to run at large was held not \mcon- 
 stitutional as being a delegation of legislative 
 power, inasmuch as the law itself was in force 
 without such vote, and the people of each 
 county were simply authorized to adopt its 
 provisions as a police regulation: Dalby v. 
 Wolf, 14-228. 
 
 303. Although the general assembly can- 
 not delegate to the people the right to make 
 or repeal a law, it has not been held that the 
 state cannot delegate legislative power to 
 municipal corporations within proper bounds : 
 State V. King, 37-463. 
 
 304. It is not unconstitutional to provide, 
 in an act enlarging the boundaries of a city, 
 that it shall only take effect after its accept- 
 ance by the city council : Morford v. Unger, 
 8-83. 
 
 305. A statute empowering cities of a cer- 
 tain grade to establish superior courts by 
 vote is not unconstitutional as providing for 
 an exercise of legislative power by the people. 
 The statute itself is in force without any 
 vote, but simply confers upon cities an option 
 to be exercised by vote to avail themselves of 
 the power conferred : Uytle v. May, 49-334. 
 
 306. A statute conferring upon cities 
 authority to be exercised at their discretion 
 is not void as delegating legislative power. 
 Such statute confers authority which the city 
 may exercise or not, as it chooses: Des 
 Moines v. Hillis, 55-643. 
 
 307. The voting of aid to railways by a 
 county is not in derogation of the legislative 
 power vested in the general assembly : Du- 
 buque County V. Dubuque & P. R. Co., 4 
 G. Gr., 1. 
 
 308. Exclusive privileges; monopolies: 
 The provision of the constitution prohibiting 
 the granting of exclusive privileges, etc., 
 does not affect exclusive charters or fran- 
 chises already gi-anted: Burlington, etc.. 
 Ferry Co. v. Davis, 48-133. 
 
 309. General and special laws: A statute 
 which operates upon a particular condition 
 and attaches to it certain consequences, so 
 that whenever that condition exists such 
 consequences follow, is a general and not a 
 
CONSTITUTIONAL LAW, IV, b. 
 
 273 
 
 Power of departments. — Legislative. 
 
 special statute : Iowa B. Land Co. v. Soper, 
 »9-112. 
 
 310. A law which affects all persons who 
 may be brought within the relations for 
 which it provides is a genera), and not a 
 special law, within the meaning of those 
 provisions of the constitution prohibiting the 
 passing of special laws in cases where gen- 
 eral laws may be made applicable. There- 
 fore, held, that the statute regulating the 
 liability of railway companies for injuries to 
 employees is general and not special, within 
 the constitutional prohibition : Me A unich v. 
 Mississi/ppi <fc M. M. Co., 20-338. 
 
 311. Special laws as to taxation: The 
 constitutional prohibition of special laws for 
 the assessment and collection of taxes is not 
 infringed by Code, § 814, allowing a debtor 
 to deduct the amount of his moneys and 
 credits in listing his property for assessment : 
 Maeklot v. Dqvenporf, 17-379. 
 
 31"i. A lawT-emitting penalties upon taxes 
 not paid within a certain time is not a special 
 law within the meaning of this provision: 
 Beecher v. Board of Supervisors, 30-538. 
 
 31 3. A curative act legalizing the levy and 
 assessment of taxes made for a year when no 
 law authorizing any levy and assessment was 
 in force, held, not in conflict with this sec- 
 tion: Boardmanv. Beckwith, 18-392. 
 
 314. For the incorporation of cities and 
 towns: The legislature cannot pass a special 
 act amending the charter of a municipal cor- 
 poration. Such act would be in conflict with 
 the clause prohibiting special acts for the in- 
 corporation of cities and towns, and would 
 be a law not of general and uniform opera- 
 tion, in a case where a general law could be 
 made applicable : Ex parte Fritz, 9-30 ; Davis 
 V. Woolnough, 9-104; Hetherington v. Bissell, 
 10-145; Baker v. Steamboat Milwaukee, 14- 
 314. 
 
 315. This provision is not violated by a law 
 empowering cities and towns, incorporated 
 under a special charter, to aijiend such char- 
 ter: Von Phul v: Hammer, 19-223. 
 
 316. Applicable to mnnieipal corpora- 
 tions: A law applicable to all cities and 
 towns existing under special charter is not 
 unconstitutional, even though it be consid- 
 ered kn amendment of their charters : State 
 V. King, 37-463. 
 
 317. A law establishing a special court in 
 
 Vol. 1 — 18 
 
 a particular town named, and providing for 
 the jurisdiction, etc., thereof, held unconsti- 
 tutional, as being in fact an amendment to the 
 city charter, and as being a local and special 
 law in a case where a general law could be 
 made applicable : McGregor v. Baylies, 19-4B. 
 
 318. An act which operates upon a partic- 
 ular condition, and attaches to it certain 
 consequences whenever that condition exists, 
 is not in conflict with this provision. So an 
 act applying only to cities under special 
 charters was held not unconstitutional, al- 
 though it could apply to but few cities : HaK- 
 kel V. Burlington, 30-232. 
 
 319. A statute validating the acts of 
 municipal corporations in levying special 
 taxes in excess of the legal limit, to pay 
 judgments, held constitutional: Iowa R. 
 Land Co. r. Soper. 39-113. 
 
 320. As the legislature cannot amend tlie 
 charter of a city, it cannot legalize an act of 
 such city not authorized by the charter, as 
 such an act would be equivalent to an amend- 
 ment: Independent School Dist. v. Burling- 
 ton, 60-500* Stange v. Dubuque, 63-303. 
 
 321. By the constitutional provision that 
 no corporation shall be created by special 
 laws, it was not intended to repeal city char- 
 ters already granted: Warren v. Henly, 
 31-31. 
 
 322. The special provision authorizing the 
 general assembly to amend or repeal all laws 
 for the organization or creation of corpora- 
 tions, or granting of special or exclusive 
 privileges or immunities, by a vote of two- 
 thirds of each branch of the general assem- 
 bly, has reference exclusively to corporations 
 for pecuniary purposes, and does not author- 
 ize the amendment of the charters of munic- 
 ,ipal corporations by special statute^: Ex parte 
 Pritz, 9-30. 
 
 323. The provisions of the Code relating 
 to the enforcement of judgments against 
 municipal corporations are not in any proper 
 sense amendments to the charter of a city, 
 and are not obnoxious to this constitutional 
 prohibition: Porter v. Thomson, 22-391. 
 
 324. Although the passage of a local or 
 special law incorporating a certain school 
 district would be in conflict with the consti- 
 tutional provision above referred to, yet, a 
 curative act legalizing a defective organiza- 
 tion thereof is not unconstitutional. In such 
 
274 
 
 CONSTITUTIONAL LAW, IV, b. 
 
 Power of departments, — Legislative, 
 
 case a general law cotild not be made appli- 
 cable ; State ex rel, v. Squires, 2&-340, 
 
 325, Boundaries of eoniities: The provis- 
 ion that no law changing the boundary of a 
 county shall have effect until submitted to 
 the people of the counties affected, applied : 
 Duncontbe v, Frindle, 12-1. 
 
 320. Other cases of special laws: A spe- 
 cial act authorizing the building of a partic- 
 ular railroad, held, not in violation of the 
 provision of this section, for the reason that 
 the object of the act was to execute certain 
 trusts confided to the state, to secure the 
 building of a railroad on a particular route : 
 Clinton v. Cedar Rapids & M. R. R. Co., 24- 
 455, 
 
 827. Statutes legalizing official acts done 
 \vithout authority are not invalid on account 
 of being special statutes, for the reason that a 
 general statute cottld not be made applicable 
 in such cases: Independent JMst. v. Inde- 
 pendent Dist., 62-616. 
 
 328. An appropriation is necessarily made 
 by a special act, and is not invalid because 
 not general and uniform throughout . the 
 state: Merchants' Union Barb Wire Co. v. 
 Brown, 64^275. 
 
 329. All statutes punishing criminally the 
 violation of law, or providing for the preven- 
 tion of crimes, are special in their character, 
 and do not come within the restriction that 
 they shall be of uniform operation with re- 
 spect to different crimes. They may provide 
 iremedies and penalties as to nuisances, for 
 instance, committed by the sale of intoxicat- 
 ing Hquors, whioli are not extended to other 
 cases of nuisance: Martin v. Blattner, 68- 
 386. 
 
 330. An act providing for the holding of 
 t«rms of coiu"t in a particular county at a, 
 place other than the county seat is not un- 
 constitutional. A general law could not be 
 applicable in such case: Cooper v. Mills 
 County, 69-350. 
 
 331. X^niformlty of operation: If a law 
 operates upon every person within the rela- 
 tions and circumstances provided for, it is 
 sufl&cient as to uniformity : lozva R. Land 
 Co. V. Soper., 39-113, 116. 
 
 332. Therefore, held, that Code, § 1807, as 
 to liability of railroad company for injuries 
 to employees, is not open to the objection that 
 it is not of uniform operation : McAimich v. 
 
 Mississippi & M, R. Co., i30-338; Depiiev. 
 Cliicago, R. I, & P. R. Co., 36-53; BucMew 
 V. Central Iowa R. Co., 64-603; Central 
 Trust Co. V. Sloan, 65-655, 
 
 333. So hdd, also, as to Code, § 1289, 
 making railroad companies liable in certain 
 cases for double damages for stock killed: 
 Jones V. Galena & C. U. R. Co., 16-6; Welsh 
 V. Chicago, S. & Q. R. Co., 53-632. 
 
 334. Uniformity in taxation comes witliin 
 the purview of the provision as to uniform 
 operation of laws: Dubuque v. Illinois Cent. 
 R. Co., 39-56. 
 
 335. But a statute providing a special 
 method for the taxation of express and tel- 
 egraph companies, held not objectionable 
 under this provision, as the burdens imposed 
 by it fell equally upon all citizens coming 
 within a certain class or condition : United 
 States Ex. Co. v. Ellyson, 38-370. 
 
 336. It is not a violation of this provision 
 that the general assembly shall provide a dif- 
 ferent method for assessing the property of 
 railroad companies from that provided for 
 the assessment of other property: Central 
 loiva R. Co. V. Board of Supervisors, 67- 
 199. 
 
 337. Also, held, that the power given to 
 cities to improve streets and make the cost* 
 thereof a lien upon abutting property was 
 not void as authorizing unequal taxation: 
 Warren i: Henly, 31-31. 
 
 338. The fact that a city is authoi-ized to 
 exempt from water rent property within its 
 limits which has not the benefit of tlie 
 water supply does not render such a pro- 
 vision unconstitutional : Grant ix. Davenport. 
 36-396. 
 
 339. A statute allowing each county to 
 determine by vote whether swine and sheep 
 should be allowed to run at large, held not 
 unconstitutional as not being uniform in 
 operation: Dalby v. Wolf,14r-228. 
 
 340. Tlie statute prohibiting the sale of ale. 
 wine and beer within two miles of the cor- 
 porate limits of a municipal corporation, 
 lield not objectionable on the ground of 
 want of uniformity in its operation : State v. 
 Shroeder, 51-197. 
 
 341. So. also, the statutory provisions as 
 to granting of permits to sell intoxicating 
 liquors, by which a permit could only be 
 given to ijersons of good moral character, 
 
CONSTITUTIONAL LAW, IV, b. 
 
 275 
 
 Pover of departments. — Legislative. 
 
 were held not unconstitutional : InreRtdh, 
 33-250. 
 
 342. A city ordinance discriminating in 
 favor of resident merchants of such city and 
 against other merchants of the state, by im- 
 ]i08ing a'license tax on the latter, would be 
 unconstitutional as not being of uniform 
 operation: Pacific Junction v. Dyer, 64-38. 
 
 See, also, supra, § 267. 
 
 343. A curative act is not necessarily un- 
 constitutional as not being of uniform oper- 
 ation : McMillen v. County Judge, 6-891. 
 
 344. So a law legalizing, the defective or- 
 ganization of a specified school district was 
 sustained : State ex rel. ik Squires, 36-340. 
 
 345. The statute providing that the fact 
 that defendant in an action was in the mil- 
 itary service of the United States or the state 
 should be sufficient cause for a continuance 
 so long as such defendant was in such serv- 
 ice, held not unconstitutional as not being 
 of uniform operation : McCormidk v. Rusch, 
 15-137. 
 
 346. An exclusive privilege already 
 gi-anted by due authority before the adoption 
 of the constitutional provision prohibiting 
 exclusive privileges and requiring laws to be 
 of uniform operation, held not to be affected 
 thereby: Burlington, etc.. Ferry Co. v. 
 Davis, 48-133. 
 
 347. A statute providing for excluding 
 property from city limits would be unconstitu- 
 tional if not made apphcable to cities already 
 incorporated as well as those to be incorpo- 
 rated: Whiting V. Mt. Pleasant, 11-482. 
 
 348. Subject to be embraced in title: In 
 an act to amend the charter of the city of 
 Keokuk was inserted a section purporting to 
 legahze elections previously held to deter- 
 mine, whether the city council should sub- 
 scribe to the stock of a certain railroad ; held, 
 that such section was not in any sense an 
 amendment to the charter, and the object 
 was not embraced in the title, nor germane 
 to anything contained therein, and the sec- 
 tion was, therefore, void : Williamson v. Keo- 
 kuk, 44-88. 
 
 349. Every law prescribing duties must 
 have the sanction of liabilities; therefore, 
 held, that Code, g 1307, prescribing the liabil- 
 ities of railroad companies in certain cases, 
 etc., was suificiently embraced in the title of 
 the bill in which it was originally enacted. 
 
 which was "An act in relation to the duties 
 of railroad companies:" McAunich v. Mis- 
 sissippi & M. R. Co., 30-338. 
 
 350. Where an act in one section legalized 
 the organization of a school district, and in 
 another legalized the acts of the officers 
 thereof, held, that the second was so con- 
 nected with the first that it was sufficiently 
 embraced in the title " An act to legalize the 
 organization of the," etc., or at least that the 
 invalidity on this ground would extend only 
 to the second section ; State ex rel. v. Squires. 
 26-340. 
 
 .351. Provisions made in an act entitled 
 "An act to amend an act to incorporate the 
 city of Muscatine," for enlarging the corpo- 
 rate boundaries of said city, he'.d, to be suffi- 
 ciently specified in the title: Morford v. 
 Unger, 8-83. 
 
 352. Provisions for excluding territory from 
 the limits of cities already incorporated are 
 sufficiently covered by the title of an act ' ' for 
 the incorporation of cities :" Whiting v. Mt. 
 Pleasant, 11-483. 
 
 353. A section contained in an act entitled 
 "An act providing the place of bringing suits 
 in certain cases," designating upon whom 
 service might be made in such cases, held 
 germane to the subject expressed in the title ; 
 Farmers' Ins. Co. v. Highsmith, 44-330. 
 
 354. Provisions of the Code as to the 
 method of enforcing a judgment against a 
 municipal corporation are sufficiently con- 
 nected with the subject of the chapter on ex- 
 ecutions under which they are found, not to 
 be objectionable under this constitutional 
 provision: Porter v. Thonuion, 22-391. 
 
 355. Act to embrace but one subject: 
 The intention of the provision prohibiting 
 more than one subject being embraced in the 
 same act was to prevent the union in the 
 same act of incongruous matter and of ob- 
 jects having no connection or relation. But 
 there must be some limit to the division of 
 matter into separate bills and acts. It can- 
 not be held that each step should be embraced 
 in a separate act. The unity of object is to 
 be looked for in the ultimate end designed to 
 be attained, and not in the details looking to 
 that end : State ex rel. v. County Judge, 3-380. 
 
 356. Therefore, held, that an act contain- 
 ing sixty-six sections, entitled "An act in re- 
 lation to certain state roads," in which fortv- 
 
276 
 
 CONSTITUTIONAL LAW, IV, b, c. 
 
 Power of departments. — Legislative. — Judicial. 
 
 six roads were established, others vacated, 
 and provisions for the relocation of still 
 others were made, was not in conflict with 
 the constitutional provision: Ibid. 
 
 357. The statute prohibiting the sale of 
 malt or vinous liquors within two miles of 
 city limits, and giving cities authority to 
 regulate and license the sales of such liquors 
 within those limits, held not unconstitutional 
 as containing more than one subject : State 
 V. Shroeder, 51-197. 
 
 358. The fact that the title of an act em- 
 braces more than one subject will not affect 
 its validity : Ibid. 
 
 359. An act entitled "An act for revis- 
 ing and consolidating the laws and incorpo- 
 rating the city of Dubuque and establishing a 
 city court therein," held not objectionable as 
 embracing more than one subject : Davis v. 
 Woolnough, 9-104, 107. 
 
 360. The act of 1855 for the suppression of 
 intemperance, held not to embrace more 
 than one subject, the several provisions 
 therein being but so many steps fairly con- 
 ducive to the end or object expressed in the 
 title: Santo v. State, 3-165. 
 
 361. The act of 30 G. A., ch. 143, amend- 
 atory of prior legislation, intended for the 
 suppression of the traffic in intoxicating 
 liquors, and providing for additional penal- 
 ties and remedies against the violaters of the 
 statute, does not embrace more than one sub- 
 ject under the prohibition of this provision : 
 Martin v. Blattner, 68-386. 
 
 362. The statute in relation to school 
 bonds (Code, §§ 1831-4) is not unconstitu- 
 tional as embodying more than one subject : 
 Ackley School Dist. v. Hall, 113 U. S., 135. 
 
 363. Publication of statutes: Under the 
 provision found in a former constitution, that 
 statutes should take effect only when pub- 
 lished and circulated by authority, held, that 
 the publication without legislative authority 
 was not sufficient to bring the statute into 
 operation : Calkin v. State ex rel. , 1 G. Gr. , 68. 
 
 364. An act conferring upon the governor 
 authority to publish acts of a general nature, 
 and providing that they should take effect 
 from such publication, held unconstitutional 
 as delegating to the governor the power 
 given to the legislature to determine what 
 acts should go into effect by publication: 
 Scott V. Clark, 1-70; PUkeyv. Ghason, 1-538. 
 
 365. The legislature at a special spssion 
 is not limited to legislation upon subjects 
 stated by the governor convening it as fur- 
 nishing the object of the call: Morford v. 
 linger, 8-83. 
 
 c. Judicial dspartment ; declaring stat- 
 utes unconstitutional^ effect. 
 
 366. Judicial authority: The provisions of 
 Code, § 431, for proceedings in the circuit 
 court for the annexation of contiguous terri- 
 tory to a city, are not unconstitutional as con- 
 ferring upon a court powers not judicial in 
 their nature. The question as to whether 
 the conditions therein mentioned exist, or 
 whether, under the circumstances, justice 
 and equity require the annexation, are of a 
 judicial character, and their determination 
 may properly be vested in the judicial de- 
 partment : Burlington v. Leebrick, 43-353. 
 
 387. The charter of a city, conferring 
 upon the mayor judicial authority, is not in 
 conflict with the constitutional provision 
 that the three departments of government 
 shall be distinct. The mayor of a city is not 
 a part of the govei-nment of the state of 
 Iowa : Santo v. State, 3-165, 330. 
 
 368. Power to declare statute unconslitu- 
 tional: The constitutional provision that no 
 person charged with the exercise of powers 
 properly belonging to one of the three de- 
 partments of government shall exercise any 
 function appertaining to either of the others 
 does not prohibit -the judicial department 
 from passing upon the legality of the acts 
 of the officers of the several departments: 
 Bryan v. Cattell, 15-538. 
 
 369. To the judicial department is intrusted 
 the power to decide all questions of con- 
 stitutional law. It belongs to that depart- 
 ment, as a matter of right and duty, to declare 
 every act of the legislature made in violation 
 of the constitution, or any provision of it, 
 null and void ; but the violation of the consti- 
 tution should be clear and apparent before 
 the act should be declared void: Seed v. 
 Wright, 3G. Gr., 15. 
 
 370. To declare an act unconstitutional 
 and void is the exercise of the highest power 
 of the court and is not to be resorted to un- 
 less it becomes necessary. It is the duty of 
 the court to give an act such a construction, if 
 
CONSTITUTIONAL LAW, IV, -c. 
 
 277 
 
 Power of departments. — Judicial. 
 
 possible, as to a^oid the necessity and uphold 
 the act : State ex rel. v. County Judge, 2-280. 
 371. The power of the court to hold an act 
 of the legislature unconstitutional and void, 
 while everywhere admitted, is of the most 
 delicate and responsible nature and should 
 not be resorted to unless the case be clear, 
 decisive and unavoidable: Santo v. State, 
 3-165, 208 ; McCormick v. Rusdh, 15-127. 
 
 S72. It is the duty of the couit to give a 
 statute such construction, if possible, as will 
 maintain it rather than one which will 
 I'ender it unconstitutional: Santo v. State, 
 3-165, 208; State ex rel. v. County Judge, 
 3-280; Duncombe v. Prindle, 13-1; loica 
 Homestead Co. v. Webster County, 21-321. 
 
 3J3. The supreme court will not consider 
 constitutional questions, unless it is necessary 
 for the disposition of the case: Bond v. 
 Wabash, St. L. & P. R. Co., 67-712. 
 
 374. The court will not decide the consti- 
 tutionality of a statute unless it be nec- 
 essarily involved in a case which cannot be 
 disposed of without such decision. If there 
 is any other point upon which the question 
 can be decided, the constitutionality of the 
 statute will not be passed upon. Parties can- 
 not, by waiving other questions, form an 
 agreed case upon which the courts will decide 
 the constitutional question: Dubuque & D. 
 B. Co. V. Diehl, 64^635. 
 
 3 75. Where a party assails the constitution- 
 ality of a statute and goes into the supreme 
 court as appellant, that court will scrutinize 
 the record with considerable strictness to see 
 whether the determination of the constitu- 
 tional question is necessary to the decision of 
 the case : State ex rel. v. Rosencrans, 65-382. 
 376. Appellate courts will not decide ques- 
 tions of constitutional law, unless absolutely 
 necessary, when the bench is not full, or 
 when all of the judges cannot assist in the 
 determination : MeClure v. Owens, 21-133. 
 
 3 J 7. A statute should be supported unless 
 its onconstitutionality is so obvious as to 
 admit of no doubt : Whiting v. Mt. Pleasant, 
 11-483. 
 
 378. A court should declare an act of the 
 legislature void only when it violates the 
 constitution so cleai-ly, palpably and plainly as 
 to leave no doubt or hesitation in their 
 minds : Morrison v. Springer, 15-304. 
 - 379. It is an elementary principle in deter- 
 
 mining the constitutionality of a statute, that 
 any reasonable doubt must be solved in favor 
 of the legislative action, and the act sustained : 
 Oate^ V. Brooks, 59-510. 
 
 380. The authority and power of the court 
 to annul an act of the legislature in conflict 
 with the fundamental law is universally 
 acknowledged, but this authority should be 
 exercised only when the statute is clearly, pal- 
 pably, plainly, and beyond reasonable doubt 
 in conflict with the constitution : Stewart v. 
 Board of Supervisors, 30-9. 
 
 381. It is fundamental that a statute should 
 not be declared unconstitutional unless it is 
 clearly so : Central Iowa R. Co. v. Board of 
 Supervisors, 67-199. 
 
 382. The court is not authorized to pass 
 upon the justice or expediency of a statute. 
 Expediency and pubKc policy and state ne- 
 cessity are not within its domain. There- 
 fore the court has no authority to annul an 
 act of the legislature as unconstitutional un- 
 less it is found to be in clear, plain and pal- 
 pable conflict with the constitution : Ibid. 
 
 383. Where the legislature had passed an 
 act appropriating a sum of money to aid a 
 private corporation in testing the validity of 
 the barbed wire patents, held, that the courts 
 had no jurisdiction to inquire into the ques- 
 tion whether such an appropriation was wise 
 or not : Merchants' Union Barb Wire Co. v. 
 Brown, 64-275. 
 
 384. Under the provision of the constitu- 
 tion that a special statute should not be 
 passed in cases where a general law could be 
 made applicable, held, that the legislature is 
 not the sole judge of whether a general law 
 can be made applicable, but that the special 
 law might be declared unconstitutional for 
 the reason that a general law applicable to 
 the subject might be framed : Ex parte Fritz, 
 9-30. 
 
 385. Where the statute allows an appeal 
 from the action of the board of supervisors 
 in establishing a road, a court in determining 
 such appeal may pass upon the constitution- 
 ality of the act under which the road is laid 
 out : Bankhead v. Brown, 25-540. 
 
 386. Construction of the constitutiou : 
 To arrive at the meaning of words used in 
 a section of the constitution, sections pre- 
 ceding and following it, having reference to 
 the same subject-matter, must be read and 
 
278 
 
 CONSTITUTIONAL LAW, IV, c. 
 
 Power of departments. — Judicial. 
 
 considered, unless the words to be construed 
 have such a clear and express meaning that 
 there can be but one conclusion as to what 
 was meant: Allen ik Clayton, 63-11. 
 
 387. Where, after considering previous and 
 subsequent sections relating to the same mat- 
 ter, there is any doubt as to the meaning of 
 the' language used, then the court may con- 
 sider, first, the evil intended to be remedied ; 
 second, the debates on the subject in the con- 
 vention which framed the constitution ; third, 
 the contemporaneous legislative constraction 
 of the constitution; and fourth, the practical 
 construction adopted by the people : Ibid. 
 
 388. Effect of uiicoiistitiitionality: Where 
 money is paid under mistake of law as to the 
 unconstitutionality of a statute, there being 
 no charge of fraud, duress, deceit or mistake 
 of fact, it cannot be recovered back : Kraft i\ 
 Keokuk, 14-86. 
 
 389. So Jield where a license fee for the 
 permission to sell intoxicating liquors had 
 been paid to a city in pursuance of a provision 
 of a statute which, after the expiration of the 
 time for which the license was granted and 
 the enjoyment of the privilege by the person 
 paying the tax, was declared unconstitu- 
 tional: Ibid. 
 
 390. Unconstitutionality of part: Statutes 
 which are partly in conflict with the con- 
 stitution will be held void no further than as 
 to those parts which are unconstitutional. 
 Provisions which are within the legislative 
 authority will be enforced. The same rule 
 applies in case of the ordinance of a city. 
 But if the parts of the statute or ordinance 
 be necessarily connected and dependent, the 
 whole must fail with the void part : Keokuk 
 V. Keokuk N. L. Packet Co., 45-196; Paclcet 
 Co. V. Keokuk, 95 U. S., 80. 
 
 391. An act void in part as unconstitu- 
 tional is not necessarily void in toto. If suffi- 
 cient remain to effect its object without the 
 aid of the invalid portion, the latter only 
 shall be rejected and the former shall stand : 
 Santo V. State; 3-165, 805. 
 
 392. Therefore, held, that the prohibitory 
 act of 1855, one section of which provided 
 that it should take effect from a certain date 
 provided it was adopted by a popular vote, 
 became a law although the provision for 
 such submission was unconstitutional : Ibid. 
 
 393. Where an act vvas in three sections, the 
 
 subject-matter of the first and third being 
 properly embraced in the title, lield, that these 
 portions were constitutional, although the 
 second section referred to a subject-matter 
 not embraced in the title : Henkle v. Keota, 
 68-334. 
 
 394. When onfi section of a statute is void 
 and others valid, and it evidently appears 
 that one section is the compensatioi^ or in- 
 ducement for the other, and the connection be- 
 tween them is such as to warrant the belief 
 that the valid part would not have been passed 
 alone, then the whole should be held void. 
 But, in a particular case, held, that one sec- 
 tion was not an inducement to, but was 
 entirely distinct and separate from the other 
 portion of the act, and that the balance of 
 the act was valid although that one section 
 was unconstitutional: Dubuque i'. Chicago, 
 D. &M. R. Co., 47-196. 
 
 395. Where a portion of a statute is uncon- 
 stitutional and that portion affects the valid- 
 ity of the entire statute, it must all fall: 
 Geebriok v. State, 5-491. 
 
 396. Where a city ordinance provided that 
 an offense should be punished to a greater 
 extent than the city had authority to inflict 
 punishment, lield, that a conviction there- 
 under would authorize the infliction of pun- 
 ishment up to the limit of the authority of 
 the city : Keokuk v. Dressell, 47-597. 
 
 397. Decisions of other courts as author- 
 ity: In questions arising upon the construc- 
 tion of the laws and constitution of this 
 state, the supreme court of the United States 
 is not the final arbiter, but it is required to 
 look to the courts of this state for the rules 
 of construction of its laws and constitution : 
 McClure v. Owen, 26-343. 
 
 398. The construction given to the consti- 
 tution of a foreign state by the covui; of last 
 resort of such state will be r'egarded as au- 
 thority by the courts of this state: Brown v. 
 Phillipps, 16-310. 
 
 399. Distinction between law and equity: 
 The distinction between law and equity is 
 maintained in the constitution, and the two 
 jurisdictions should not be confounded: 
 Cooper V. Ai'mstrong, 3 G. Gr., 120. 
 
 And see Courts, gg 9-16, 38, 24. 
 
 400. Superior and inferior courts: An 
 inferior court is one from which an appeal 
 lies to a superior court, and over which the 
 
CONSTITUTIONAL LAW, V- CONTEMPT. 
 
 279 
 
 Amendments. — Contempt of court. 
 
 latter has a supervisory power and control. 
 Under the constitutional provision that the 
 judicial power shall be vested in the supreme 
 court, district court, and such other courts 
 inferior to the supreme court as the general 
 assembly may from time to time establish, 
 courts may be organized not inferior to the 
 district, provided they be inferior to the su- 
 preme court: Hetheringion v. Bissell, 10- 
 145. 
 
 401. A statute for the organization of a 
 city court possessing in some respects a co- 
 ordinate jurisdiction with the district court, 
 held not unconstitutional under such provis- 
 ion : Davis v. Woolnough, 9-104. 
 
 As to the jurisdiction of the avipreme, dis- 
 trict, and other courts under t^ie constitution 
 and statutes, see Courts. 
 
 V. Amendments. 
 
 402. Observance of forms: The provisions 
 of the constitution for its own amendment 
 are not simply directory, to be disregarded 
 
 ^with impunity. The department charged 
 with their observance is not the sole judge 
 whether or not they have been complied with. 
 The courts may inquire as to whether an 
 amendment that does not relate to its own 
 l^owers or functions has been adopted in the 
 manner jirescribed in the constitution, and if 
 it finds that the requirements of the constitu- 
 tion have not been observed, it may declare 
 that such amendment has not become a part 
 of the constitution : Koehler v. Hill, 60-543. 
 
 403. Effect of adoption of new constitu- 
 tion : Provisions in a city charter inconsistent 
 with the new constitution were repealed by 
 its adoption : Dively v. Cedar Falls, 27-227 ; 
 Scott V. Davenport, 34-208. 
 
 404. Crimes already committed were sub- 
 ject to punishment the same as though the 
 new constitution had not been adopted : State 
 V. Axt, 6-511. 
 
 CONTEMPT. 
 
 As to contempt by Attorneys, see that 
 title, V. 
 
 1. Contempt of court: By statutory pro- 
 vision (Code, g 3491), contemptuous or inso- 
 lent behavior must be toward thQ court while 
 it is engaged in judicial duty, and such be- 
 
 havior must tend to impair the respect due to 
 its authority in order that such acts may be 
 punishable as contempt! Dmiham v. State, 
 6-245. 
 
 2. If by general rule, or by special rule 
 made as to some cause on trial, a publication 
 of the testimony pending the investigation 
 has been prohibited, a wilful violation of 
 such rule might amount to contempt on the 
 ground that it would be a resistance to the 
 rule thus made, and especially if the rule it- 
 self declared such act a contempt : Ibid. 
 
 3. It would seem that the provisions of the 
 Code must be regarded as a, limitation upon 
 the power of courts to i^unish for any other 
 contempts than those therein specified ; Ibid. 
 
 4. The publication of newspaper comments 
 upon the decision of a court when the case is 
 disposed of and the decision announced are 
 not punishable as contempt : Ibid. 
 
 5. Publication of articles in a newspaper 
 reflecting upon the conduct of a judge in re- 
 lation to a cause disposed of before such pub- 
 lication does not amount to a contempt : State 
 V. Anderson, ^0-207. 
 
 0. Argument by attorney : After the de- 
 cision of the court has been made, the time 
 for argument in reference thereto has passed, 
 and an attorney cannot, except by asking 
 and obtaining leave, further argue the ques- 
 tion or deny the statements of the court with 
 reference to the facts involved in such deter- 
 mination : Russell v. French, 67-102. 
 
 7. Proceedings to punish: A proceeding 
 for contempt for violating an order of in- 
 
 ■ junction issued in an equity case may be 
 prosecuted in a court of equity. The same 
 court must inflict the punishment for con- 
 tempt in which the order violated is granted : 
 Manderscheid v. District Court, 69-240. 
 
 8. It is proper to coiiduct the proceedings 
 for contempt under the title of the cause out 
 of which the contempt arises : Ibid. 
 
 9. Any irregularity in serving a rule to 
 show cause against punishment for contempt 
 will be waived by the appearance of the 
 paarty : Ibid. 
 
 10. A party charged with contempt has 
 not a right to a jury trial although the act 
 charged also constitutes a ci-ime. The pun- 
 ishment for the contempt is not a punish- 
 ment of the act as a crime, and the crime 
 may be separately punished : Ibid, 
 
280 
 
 CONTEMPT. 
 
 Violation of injunction. 
 
 11. Violation of injnucUon: The wi-it of 
 injunction, for the violation of which the 
 proceedings are instituted, need not be filed 
 in the proceeding : Jordan v. Circuit Court, 
 69-177. 
 
 12. While the provision for a fine of five 
 hundred dollars for violation of an injunction 
 prohibiting the sale of intoxicating liquors is 
 extraordinary in amount, it is not in that re- 
 spect unconstitutional : Ibid. 
 
 13. Attachment for contempt is the proper 
 mode of enforcing obedience to a continuing 
 order in the nature of a mandatory injunc- 
 tion : State v. Baldvnn, 57-266. 
 
 14. In replevin: The judge is authorized 
 in vacation to punish as contempt an unlaw- 
 ful obstruction or hindrance to an order for 
 the taking of property : State v. Myers, 44-580. 
 
 15. In mandamus: Where a writ of man- 
 damus to collect a tax is disobeyed by the 
 board of supervisors, but one action for con- 
 tempt is allowed against them, and that a 
 joint action. If the board are severally pro- 
 ceeded against, the actions may be consoli- 
 dated so long as the act charged is disobe- 
 dience of the same writ of mandamus: 
 Durant v. Supervisors, Woolworth, 377. 
 
 16. Action against receiver : It is contempt 
 to bring an action in a state court against 
 a receiver appointed by a federal court with- 
 out first obtaining leave of the court appoint- 
 ing the receiver. It is immaterial whether 
 the property is thereby disturbed or not: 
 Thompson v. Scott, 4 Dillon, 508. 
 
 17. Befasal to nialce aflidnvit: A witness 
 may be punished for contempt in refusing to- 
 make an affidavit, and to answer questions as 
 provided by Code, g§ 3693, 3693, and the fact 
 that the aflidavit desired would not be legally 
 admissible in the proceeding in which it is 
 sought, is no excuse for such refusal : RoVb 
 V. McDonald, 29-330; State ex rel. v. Seaton, 
 61-568. 
 
 18. Refusal to disclose property: Under 
 statutory provisions (Code, § 349) the judge 
 lias power to impose a punishment upon a 
 witness who refuses to answer questions 
 propounded to him in a proceeding for the 
 pui'pose of discovering his property : Lutzv. 
 Aylesworfh, 66-639. 
 
 19. Attachment of witness: A party can- 
 not take advantage of the refusal of the 
 court to attach a witness for contempt, who 
 
 refuses to produce evidence: Manning r. 
 Perkins, 16-71. 
 
 20. Nature of proceeding: The proceetl- 
 ing to punish a contempt of process is merely 
 incidental to, and, to a great extent, inde- 
 pendent of the original proceeding in which 
 it may be invoked. It is in its nature crim- 
 inal : First Cong. Church v. Muscatine, 2-69. 
 
 21. An action for contempt is a criminal 
 action, and if in the federal courts, the 
 United States is a party thereto : Durant r. 
 Supervisors, Woolworth, 377. 
 
 22. Arrest: While it is true that proceed- 
 ings to punish for contempt are in a certain 
 sense of a criminal nature, they are not gov- 
 erned by the code of criminal procedure, but 
 by a special statute, and under such provis- 
 ions it is sufficient to serve a rule upon 
 defendant to show cause against the punish- 
 ment, and the court is not bound to secure 
 the arrest of defendant and his personal pres- 
 ence before- proceeding against him: Jordan 
 V. Circuit Court. 69-177. 
 
 23. Where the proper order had been 
 served upon defendant, held, that the court 
 might proceed to take evidence, although de- 
 fendant was not present personally or by 
 counsel: Ibid. 
 
 24. A warrant may be made returnable on 
 a certain day, which may be at a subsequent 
 term, and it may direct the arrest of a per- 
 son in contempt, in vacation, and provide for 
 his release on bafi : State v. Archer, 48-310. 
 
 25. Hearing: Where it is complained that 
 after appearance of defendant in answer to 
 a citation to show cause, the case is set 
 down for hearing at such time as not to 
 allow defendant sufficient opportunity to 
 prepare therefor, he should make a special 
 showing for postponement: Jordan v. Circuit 
 Court, 69-177. 
 
 26. Jurisdiction: In the absence of stat- 
 ute, each court of record is the sole and final 
 judge in matters of contempt with reference 
 to its proceedings: First Cong. Church i\ 
 Muscatine, 3-69. 
 
 27. The visiting committee of an insane 
 hospital has no authority under the Code to 
 punish a witness for contempt for refusing to 
 testify when summoned before it : Brown v. 
 Daindson, 59-461. 
 
 38. Accusation: In a proceeding against 
 an attorney for contempt, the accusation 
 
CONTEMPT. 
 
 2S1 
 
 Evidence. 
 
 should specify the manner in which he was 
 disrespectful to the court. If it was done by 
 insulting language, the words used by the 
 accused should be given ; if by disrespectful 
 acts, those acts should be described so that 
 the accused may know what words or acts 
 he is required to meet. In a particular case, 
 held, that the charge of contempt " in diso- 
 beying the orders of your Honor while en- 
 gaged in your official capacity"' was not 
 sufficiently specific: Perry v. State, 3 G. Gr., 
 550. 
 
 29. In such case the finding or judgment 
 should specify the particular charge or 
 charges upon which the attorney's guilt is 
 pronounced: Ibid. 
 
 30. Eiidence: By statute (Code, § 3497), if 
 the action of the court is founded upon evi- 
 dence given by others, such evidence must 
 be in writing, filed and preserved, and if the 
 court acts upon its own knowledge in the 
 premises, a statement of the facts upon 
 which the order is founded must be entered 
 upon the records of the court, or filed and 
 preserved when the court keeps no record; 
 and these provisions are applicable to pro- 
 ceedings for a contempt in refusing to de- 
 liver property under a writ of replevin: 
 State V. Myers, 44^580. 
 
 31. An order entering a fine for contempt 
 vv'ill be reversed when a statement of facts, 
 iipon which the orde* is founded, is not 
 entered on the record in a case where the 
 court acts upon its own knowledge : State v. 
 Utley, 13-593; Skiff v. State, 8-550; State v. 
 Dougherty, 32-261. 
 
 32. Where neither the record nor the wai-- 
 rant of commitment shows upon what evi- 
 dence or facts an order of commitment is 
 based, nor whether the same were within the 
 knowledge of the court, the order will be re- 
 versed on certiorari: State v. Folsom, 34-588. 
 
 33. The affidavit required where the con- 
 tempt is not committed in the immediate 
 view or presence of the court, or does not 
 come officially to its knowledge, need not 
 show that affiant has personal knowledge of 
 the facts: Jordan v. Circuit Court. 69-177. 
 
 34. Although a failure of the judge to file 
 and preserve a statement of the facts on 
 which the order of contempt is founded will 
 render the contempt invalid, yet where the 
 transcript of the examination of a witness 
 
 showing the questions asked, and'the refuse 1 
 to answer, was filed by the judge with his 
 certificate, held, that it constituted a suffi- 
 cient compliance with the requirements of 
 the statute, although the transcript was made 
 afterwards by a shorthand writer from ncite'- 
 taken at the time: Lutz v. Aylesworth, 66- 
 629. 
 
 35. In a proceeding for contempt for jjub- 
 lishing false, scandalous and defamatory 
 articles in relation to the judge of the court, 
 it is proper to hear testimony of witnesses as 
 to the meaning and intent of the articles, and 
 whether the same in their opinion referred 
 to or meant the court or the judge thereof : 
 Henry v. Ellis, 49-205. 
 
 36. Excuse or explanation: Where a rea- 
 sonable time is asked to prepare a written 
 explanation, it should be granted : State v. 
 Duffy, 13-425. 
 
 3 7. Upon a proceeding for an alleged con- 
 tempt in failing to obey an order of court, 
 defendant may by answer show that there 
 was no contempt in fact by reason of the 
 impossibility of performing the required act. 
 He is not required to proceed by appeal or 
 otherwise for a modification of the original 
 order : Hague v. Hayes, 53-377. 
 
 38. A party cannot, in a proceeding for 
 contempt for disobedience to a judicial order 
 rendered by a court having jurisdiction, call 
 in question the correctness of the order itself. 
 The only legitimate inquiry in such case is, 
 did the court have jurisdiction, and did it 
 make an order which has been violated : 
 State V. Baldwin, 57-266. 
 
 3i). It is improper to punish for contempt, 
 even when committed in the presence of the 
 court, without giving the offending party 
 opportunity to make a written explanation 
 of his conduct under oath for the purpose of 
 excusing the contempt or reducing the pun- 
 ishment, and such reasonable opportunity 
 must be given before the party is adjudged 
 guilty of contempt and punishment therefor 
 is inflicted. When the court deems that a 
 contempt of its authority has been committed 
 in its presence, the attention of accused 
 should be called thereto and a reasonable 
 time fixed within which he may make the 
 written explanation contemplated by the 
 statute. He should not be called upon to do 
 so on the instant when the accusation is 
 
')so 
 
 CONTEMPT — CONTINUANCES. 
 
 Punishment. — Discretion ; grounds. 
 
 made, unlftss the emergency is more than 
 ordinarily great : Russell v. Fi'ench, 67-102. 
 
 40. Where the statement of an adminis- 
 trator, required by order of court to pay over 
 money received by him as such, shows the 
 receipt of such money, but does not show its 
 disbursement uijon lawful claims, he does not 
 purge himself of contempt by showing that 
 he has disbursed the money upon claims not 
 lawfully presented and allowed, and that he 
 has no money of his own with which to sat- 
 isfy the claim against him : Wise v. Chaney, 
 67-73. 
 
 41. Punishment: TJie court cannot pun- 
 ish an attorney for contempt by revoking or 
 suspending his license. That can only be 
 done in the manner provided by § 217 et seq. . 
 State V. Start, 7-499. 
 
 42. Nor can it, by summary proceeding 
 for contempt, compel a party to deliver to 
 the sheriffs a key or property claimed by an- 
 other: Ibid. 
 
 43. A judge may, in vacation, impose the 
 same punishment for contempt as if he were 
 acting in court : State v. Myers, 44-580. 
 
 44. The judge or court imposing a fine for 
 contempt may direct imprisonment of defend- 
 ant until such fine be paid ; the extent of 
 imprisonment being limited by the directions 
 of Code, §4509: Ibid. 
 
 45. A party who is in contempt has no 
 right to be heard in defense of the action in 
 which the contempt has been adjudged, but 
 failure to pay money awarded as temporary 
 alimony for which judgment has been en- 
 tered does not constitute contempt in this 
 respect: Bailyv. Baily, 69-77. 
 
 That a party in contempt cannot file plead- 
 ings so as to save default against him, see 
 Default, §§ 25-27. 
 
 CONTINUANCES. 
 
 [The statutory provisions on this subject. 
 Code, §§ 2748-3760, are apphcable to both 
 civil and criminal cases : See Code, § 4419.] 
 
 1. Discretion: The application for a con- 
 tinuance is addressed peculiai-ly to the sound 
 legal discretion of the judge, and his ruling 
 thereon will not be interfered with on appeal, 
 unless the supreme court is clearly satisfied 
 that this discretion has been, abused and in- 
 justice thereby done : Widner v. Hunt, 4-355 ; 
 
 Childs V. Heaton, 11-371; State v. Rora- 
 backer, 19-154; Boone v. Mitchell, 33-45; 
 Finch V. Billings, 22-238 ; Harrison v. Charl- 
 ton, 37-134; Peckv. Parchen, 53-46; State v. 
 Wells, 61-629. 
 
 2. Application for continuance not based 
 upon absence of witnesses, but upon the 
 ground that the prisoner should suffer sub- 
 stantial prejudice if then compelled to go to , 
 trial, is addressed pecuUarly to the discretion 
 of the lower court and wDl not be interfered 
 with unless abused : State v. Eeid, 30-413. 
 
 3. The discretion which is conferred upon 
 the court is, however, not arbitrary, but is to 
 be governed and controlled by legal rules: 
 P^vrington v. Frank, 3-565. 
 
 4. Where a party clearly brings hirbself 
 within the law in an application for continu- 
 ance, and no special circumstances are shown 
 defeating his right, it is the duty of the court 
 to grant the motion, and a refusal to do so 
 will constitute reversible error: Welsh v. 
 Savery, 4^341 ; State v, Barrett, 8-536. 
 
 5. While much is left to the discretion of 
 the court in passing upon such an application, 
 its ruling should not be arbitrary nor in vio- 
 lation of the rights of either party : State v. 
 Painter, 40-298. 
 
 All appeal does not lie from the ruling of 
 the court upon a niotion for continuance. 
 It is a mere intermediate order, not mate- 
 rially affecting the final decision, and error in 
 the ruling can only be urged upon appeal 
 from the final judgment : See Appeals, § 39. 
 
 6. Grounds; absence of eyidence: In a 
 criminal case the state as well as defendant 
 is entitled to reasonable opportunity to pro- 
 cure its witnesses and be prepared for trial, 
 and where a proper application for a contin- 
 uance is made by the state with sufficient 
 showing of diligence, it should be granted: 
 State V. Painter, 40-298. 
 
 7. In a particular case, held, that a con- 
 tinuance should have been granted on appli- 
 cation of defendants to allow them to pro- 
 cure testimony as to their general character : 
 State V. Nash, 7-347, 373. 
 
 8. Where, in a prosecution for murder, 
 defendant asked a continuance on account 
 of the absence of a witness by whom he 
 expected to prove that he (witness) did the 
 killing, held, that the improbability that 
 the witness would thus subject himself to 
 
CONTINUANCES. 
 
 283 
 
 Pai'ty not at fault. — Diligence required. 
 
 a criminal prosecution, was not sufficient 
 ground for refusing a continuance : State v. 
 Farr, 33-553. 
 
 9. Party not at fault: A continuance 
 should not be granted for a cause growing 
 out of the fault of a party : Connor v. 
 Griffin, 27-248. 
 
 10. A continuance on the ground of the 
 absence of a witness should not be granted 
 to defendant in default, who offers no de- 
 fense, nor when the residence of the witness 
 is not given, and diligence in ascertaining it 
 is not shown : James v. Arbuekle, 8-272. 
 
 11. Diligence required: Application for 
 continuance, based upon absence of papers 
 which have been taken from the court by 
 the attorney of the party asking the con- 
 tinuance, may properly be refused: Wright 
 V. Clark, 2G. Gr., 86. 
 
 12. The party seeking a continuance on 
 the ground of the absence of a witness must 
 show that he has availed himself of the 
 means given by the statute to procure the at- 
 tendance of such witness, or . to obtain his 
 deposition: State v. Cross, 13-66. 
 
 13. The fact that a witness examined be- 
 fore the grand jury, and whose name is in- 
 dorsed upon the indictment, is subpoenaed by 
 the prosecution but does not appear, cannot 
 be made the basis of a motion^ by defend- 
 ant for continuance, after the jury is sworn, 
 upon the ground that he is a material witness 
 for defendant. If his attendance on behalf 
 of defendant is desired, he should be sub- 
 poenaed by defendant and steps taken to as- 
 certain whether he will be present : State v. 
 Hay den, 45-11. 
 
 14. Where defendant was a resident of 
 California, and his attorney had been tor 
 more than two months in communication 
 with him, but it did not appear that he had 
 taken any steps to secure the testimony of 
 his client, held, that there was not sufficient 
 showing of diligence to entitle defendant to 
 a continuance for the purpose of having his 
 testimony taken : Argall v. Pugh, 56-308. 
 
 15. Absence of a witness held not suffi- 
 cient ground for a continuance where the 
 deposition of the witness could have been 
 taken: Bell v. Chicago, B. & Q. R. Co., 64- 
 331. 
 
 16. A party must show, not only that he 
 made proper efforts to obtain the desired evi- 
 
 dence after he knew that it might be ob- 
 tained, but also that he used due diligence in 
 discovering it : State v. Bell, 49-440. 
 
 1 7. An affidavit in a particular case, held 
 insufficient, in that it did not show that the 
 witness' absence was unknown until so near 
 the term that his deposition could not be 
 taken : Widner v. Hunt, 4-355. 
 
 18. A party is held to greater diligence in 
 procuring the deposition of a non-resident 
 than that of a resident witness: Peck v. 
 Parchen, 52-46. 
 
 19. Where a commission issued in Decem- 
 ber to take the deposition of a witness, and 
 was not retui-ned before trial in the following 
 June, held, that sufficient diligence was not 
 shown: Cole v. Strafford, 13-345. 
 
 20. It is not required of a party, in the 
 exorcise of proper diligence, that he have 
 witnesses in attendance from a distance to 
 meet a claim not yet made in the pleadings, 
 although he may have noticed that sucli 
 claim wiU be made : Sapp v. Aiken, 68-699. 
 
 21. The supreme court would be slow to 
 disturb an order of continuance made upon 
 application of the prosecution after the fail- 
 ure of the jury to agi-ee in a criminal prose- 
 cution submitted to them, where the ground 
 for asking such continuance is that wit- 
 nesses for the prosecution have been allowed 
 to depart from the court before the conclu- 
 sion of the trial and cannot be secured 
 before the next term : State v. Miller, 65-60. 
 
 22. A party is not entitled to a continu- 
 ance for the purpose of taking testimony 
 where the action has been so long pending 
 and the necessity of the testimony has been 
 apparent for such length of time that it is 
 negligence on his part not to have procured 
 his testimony sooner : Oreither v. Alexander, 
 15-470. 
 
 23. A party cannot have a continuance on 
 account of the absence of a witness where 
 it does not appear that proper steps were 
 taken to secure his attendance or that the 
 party had any reason to believe that the wit- 
 ness would remain within the reach of a sub- 
 poena during the term: Fiske v. Berryhill, 
 10-203. 
 
 24< As to whether sufficient diligence was 
 used under particular circutnstances, see 
 Fiske V. Berryhill, 10-203 ; State v. Scott, 44- 
 93 ; State v. Spvrlieck, 44-667 ; State v. Dakin, 
 
284 
 
 CONTINUANCES. 
 
 Showing of diligence. — Statement of testimony. 
 
 53-395; Brandt v. McDowell, 52-230; Kim- 
 ball V. Bryan, 56-632; State v. Stone, 65- 
 366. 
 
 25. Showing' of diligence: It is not suffi- 
 cient to state that due diligence has been 
 used; the facts constituting such diligence 
 must be shown : Thurston v. Cavenor, 8-155. 
 
 26. The facts constituting due dUigenoe 
 must be shown, and from such facts the 
 court will determine whether the necessary 
 diligence has been exercised: Brady v. Ma- 
 lone, 4r-li6. 
 
 2 7. Affidavits for the purpose of showing 
 due dUigenoe should be strictly construed 
 and most strongly against the applicant for 
 the continuance : Brady v. Malone, 4-146. 
 
 28. The showing in particular cases for a 
 continuance on account of the absence of 
 material witnesses held sufficient: State v. 
 Dakin, 52-395 ; State v. Nash, 7-347, 373. 
 
 29. In pai'ticular cases held that the show- 
 ing of diligence was not sufficient to require 
 tlie coTU-t to grant the continuance : Thurston 
 V. Cavenor, 8-155; Walker v. Scofield, 39- 
 666; Adams v. Peck, 4-551; Brotherton v. 
 Brothertort, 41-112; State v. Spurbeck, i4r- 
 667; Randall v. Fockler, 52-618; Finch v. 
 Billings, 32-228. 
 
 30. Statement as 1o what absent witness 
 will prove: "Where the application for con- 
 tinuance is miad* on account of the absence 
 of witnesses, the affidavit ought to give the 
 nataes of the witnesses, their residence and 
 the particular facts which the party expects 
 to prove, or give some excuse for not doing 
 so, not only in order that it may appear that 
 substantial justice requires the continuance, 
 but because the opposite party has a right to 
 know the facts expected to be proved in or- 
 der that he may admit them and thus pre- 
 vent a continuance if he so desires. (Code, 
 §§ 2750, 2751): State ex rel. v. Tilghman, 6- 
 496; Olds v. Glaze, 7-86. 
 
 31. The affidavit as to what affiant be- 
 lieves witness will prove must state facts, as 
 distinguished from. legal conclusions: State 
 V. Fetter, 35-67. 
 
 32. A statement that the party expects to 
 prove by the witness "aU the material alle- 
 
 gations contained in his answer " is not suffi- 
 cient : Olds V. Olaze, 7-86. 
 
 33. The affidavit must show that the wit- 
 ness would, if present, testify to facts mate- 
 rial and relevant to the issue : State v. 
 Bennett, 53-734; State v. Williams, 8-533; 
 State V. Falconer, 70 . 
 
 34. Where the ground for continuance 
 was the absence of defendants to the suit, 
 who it was claimed were the only witnesses 
 by whom the defense could be proven, lidd, 
 that the application was not sufficient with- 
 out setting out the facts to whieh such wit- 
 nesses would testify : Jackson v. Boyles, 64- 
 428. 
 
 35. "Where the showing as to what it was 
 expected to prove by a witness whose absence 
 was made the basis of an application for con- 
 tinuance did not indicate that the matters to 
 which he would testify would show any legal 
 defense, held, that the continuance was prop- 
 erly refused: State v. Clark, 69-196. 
 
 36. Admission by opposite party of testi- 
 mony set out in application :i Where the 
 opposite party admits that the witness, if 
 present, would testify to the facts stated, the 
 affidavit may be read to the jury as the basis 
 of such admission : Strong v. Hart, 7-484. 
 
 37. But it can be read only in so far as it 
 states facts which the witness, if present, 
 would be allowed to testify to : State v. Sater, 
 8-430. 
 
 38. The admission does not preclude legal 
 objections which might be made to the testi- 
 mony if the witness was present: State r. 
 Geddis, 43-364. 
 
 39. The statements of the affidavit, if ad- 
 mitted and read, are to be taken as the testi- 
 mony of the witness in court, and cannot be 
 impeached by proof of different statements 
 made out of court, unless a proper foundation 
 therefor has been laid, even though such out- 
 side statements were under oath: State lu 
 Shannehan, 32-435. 
 
 40. The affidavit and admission are not ad- 
 missible as evidence at a subsequent term: 
 State V. Felter, 32-49. 
 
 41. As to whether the provisions denying 
 a continuance on the ground of absence of 
 
 ^ Code, § 2751. If the application is insufficient, it shall be overruled; if held suflftcient, the cause shall be 
 continued, unless the adverse party will admit that the witness, if present, would testify to the facts therein 
 stated, in which event the cause shall not be continued, but tlic party may read as evidence of such witness 
 the facts held by the court to be properly stated. 
 
CONTINUANCES. 
 
 281; 
 
 Showing. — Othei- grounds. 
 
 witnesses in case of admission as to what 
 the witness is expected to prove is in viola- 
 tion of defendant's constitutional right to 
 compulsory process ' for the attendance of 
 his witnesses, qucere: Trulock v. State, 1- 
 515. 
 
 42. No other ■witnesses: The affidavit 
 must show that there are no other witnesses 
 by whom the facts stated can be proved : 
 Thompson v. Abbott, 11-193. 
 
 43. But where a party stated in his affi- 
 davit that he knew of no person by whom 
 the same facts could be "as fully proved as 
 by said " witnes.?, held, that the affidavit was 
 sufficient : Welsh v. Saver y, 4r-241. 
 
 44. Ability to procure witness at next 
 term : The provision that the affidavit shall 
 show reasonable ground of belief as to the at- 
 tendance of witnesses at the'next term, etc., 
 contemplates more than a mere statement of 
 a belief that the testimony can be procured : 
 State V. Morabacher, 19-154. 
 
 45. A continuance should not be granted 
 upon an affidavit that the party knows of no 
 witness in the state by whom he can prove the 
 desired fact, where he fails to state that there 
 is a person anywhere by whom such fact can 
 be proven: Thompson v. Lord, 14^591. 
 
 46. Otlier grounds of continuance ; ab- 
 sence of counsel: A continuance may be 
 granted in a particular case on account of ab- 
 sence of counsel, but if such application is 
 refused, the supreme court would require very 
 strong circumstances, manifesting a clear 
 abuse of discretion, before it would interfere : 
 Brady v. Malone, 4-146. 
 
 47. While the absence of a party's attorney 
 on account of sickness might be a ground for 
 continuing a cause to a later day in the same 
 term, under the circumstances of a particular 
 case, held, that it was not sufficient to require 
 a continuance over the term: State v. Os- 
 trander, 18-435, 448. 
 
 48. Where it was shown that the attorney 
 for one of the parties at the time of the mo- 
 tion for continuance was very sick and un- 
 able to do business, and the nature of the case 
 was such that no other attorney could pre- 
 pare for its trial at that time, held, that it was 
 error to refuse a continuance, although it ap- 
 peared that afterwards, and prior to the time 
 of the trial, such attorney had so far recov- 
 ered as to be at the court-house, though not in 
 
 a condition to try the case : Rice v. Melendy, 
 36-166. 
 
 49. Absence of tlie party: To warrant the 
 granting of a continuance on account of tin; 
 absence of the party himself, the court should 
 require much stricter showing of diligence or 
 cause for such absence than in case of a 
 witness not a party: Oates v. Hamilton, 
 13-50. 
 
 50. Where an affidavit for continuance 
 showed the absence of a party to the suit, but 
 did not show that his presence was necessary 
 except as a witness, and did not state what 
 was expected to be proved by his testimony 
 nor the particular facts to which he would 
 testify, held, that a continuance was prop- 
 erty refused : Jackson v. Boyles, 64-438. 
 
 51. The showing in a particular case held 
 not sufficient to entitle defendant to a con- 
 tinuance on account of his own absence: 
 Brandt v. McDowell, 53-330. 
 
 52. Tbe appointment of a guardian ad 
 litem may be a proper ground for continu- 
 ance to enable him to prepare the case for 
 trial : Blytlie v. Blythe, 35-266. 
 
 Further as to appointment of guardian ad 
 litem, see Parties, §§ 235-388. 
 
 53. The substitution of an administrator 
 as a party is not a ground for continuance : 
 Masterson v. Brown, 51-442. 
 
 54. Military service: Under statute grant- 
 ing to defendants in the military service of 
 the United States the right of continuance 
 in actions brought by or against them, held, 
 that under the terras of the statute the con- 
 tinuance might be granted as well before as 
 after the filing of the answer : MoCormick v. 
 RiLSch, 15-127. 
 
 55. Under such statute, held, that a pay- 
 master in the United States service was en- 
 titled to continuance as much as any soldier 
 or other officer, and that the disbanding of 
 the volunteer forces would not take away 
 such right if the condition of the service re- 
 quired him to continue on duty: Clark v. 
 Woodbury, 33-61. 
 
 56. Prejudice must appear: Under equity 
 practice, held, that where defendant liad 
 called for a replication under oath, and the 
 same was duly given, he was not entitled to 
 a continuance in order to procure attendance 
 of plaintiff as a witness to testify concern- 
 ing the same matter already embraced in his 
 
286 
 
 CONTINUANCES. 
 
 Prejudice. — AflSdavits. 
 
 sworn replication: Stevens v. Campbell, G- 
 538. 
 
 o 7. Where a criminal case was continued 
 to a special term in the absence of the pris- 
 oner on account of the previous connection 
 of the judge with the case, held, that no 
 prejudice resulted to the accused in view of 
 the fact that the continuance would have re- 
 sulted from operation of law in any event : 
 State V. Linhart, 23-314. 
 
 68. A party complaining of the refusal of 
 the cCurt to grant a continuance upon an 
 amendment being filed by the opposite party 
 must show that he suffered prejudice, such 
 as that he had not information of all the evi- 
 dence required to make his defense, or that 
 his witnesses were not all present, or the like : 
 York V. Clemens, 41-95. 
 
 59. Where defendant asked for a two days' 
 continuance for the purpose of procuring 
 testimony, which was overruled, and the 
 cause was proceeded with, but defendant 
 was not called upon to introduce evidence 
 imtil the third day after, held, that he was 
 not prejudiced by refusal to grant his appli- 
 cation: Winhlemans v. Des Moines North- 
 loestern K. Co., 62-11. 
 
 60. Where a case has been continued upon 
 the application of a party at previous terms, 
 reasonable prejudice should be shown before 
 another continuance is granted: Rosecranes 
 V. Iowa & M. Telephone Co., 65-444. 
 
 61. Facts in a particular case held not to 
 show sufficient prejudice to entitle a party to 
 continuance on account of the absence of tes- 
 timony : Owens v. Hart, 66-565. 
 
 62. Time for filing' motion : Th3 motion 
 should be filed as soon after the second day 
 of the term as it becomes certain that it will 
 have to be filed : Bays v. Herring, 51-386. 
 
 63. If the affidavit is not made on the sec- 
 ond day, a sufficient excuse therefor should 
 be stated in the affidavit : Randall v. Foekler, 
 52-618. 
 
 64. If filed after the second day, and no 
 x-eason for the delay is shown, the motion 
 should be overruled: Lucas v. Casady, 12- 
 567; Chicago & S. W. R. Co. v. Heard, 
 44-358; Bell v. Chicago, B. & Q. R. Co., 64- 
 331. 
 
 65. Under the facts in a particular case, 
 lield, that it did not sufficiently appear that 
 the application was made as soon as it became 
 
 certain that it would need to be made as 
 required by statute: Bays v. Herring, 51- 
 286. 
 
 66. Where the application was made on 
 the day the cause was regularly reached for 
 trial, held, that in the absence of any show-, 
 ing^ to the contrary, it would be presumed 
 that it was overruled for the reason that it 
 was not made within the time required: 
 Woolheather v. Risley, 38-486. 
 
 67. Continuance as to one piirty: Where 
 the action was against two defendants as a 
 firm and not against them as individuals, held, 
 that a continuance against one would operate 
 as a continuance against both: Butler v. 
 McCall, 15-430. 
 
 68. Amendment of application: Before 
 the enactment of the statutory provision 
 (Code, g 2753) that the application shall be 
 amended but once unless by permission to 
 supply a clerical error, held, that the practice 
 of suffering affidavits for continuance to be 
 amended or new ones to be filed was one 
 which might be productive of much evil, and 
 should be pennitted, if at all, with great cau- 
 tion : Widner v. Hunt, 4-355. 
 
 69. But held that it was certainly within 
 the discretion of the court to refuse leave to 
 amend au afiidavit alleged to be insufficient 
 or to file a new affidavit, unless it was for the 
 purpose of presenting facts which have trans- 
 pired or come to the knowledge of the party 
 since filing the original : Ibid. 
 
 70. Aifi davits: It is not competent for the 
 attorney to swear to an affidavit as to facts 
 for a continuance which are solely within the 
 knowledge of his client : Ibid. 
 
 71. Counter-affidavits: In case of a mo- 
 tion for continuance on account of the ab- 
 sence of evidence, counter-affidavits are not 
 rejeivable : State v. Bowers, 17-46 ; State v. 
 Dakin, 52-395 ; State v. Wells, 61-629. 
 
 72. But where the motion was oveiTuled 
 because insufficient in itself, held, that the 
 action of the court could not be reversed on 
 appeal although counter-affidavits had been 
 received and considered: Williams v. Niag- 
 ara F. Ins. Co., 50-561. 
 
 73. An appplication under Code, § 2749, 
 authorizing a continuance when "justice 
 will be thereby more nearly obtained," for 
 instance, where it is asked on account of ex- 
 citement and prejudice against defendant in 
 
CONTRACTS, I. 
 
 287 
 
 Form. 
 
 a criminal case, the application may be re- 
 sisted by counter-affidavits as to the matters 
 relied upon: State v. Wells, 61-639, 
 
 CONTRACTS. 
 
 I. Form. 
 II. Execution and delivery, 
 
 a. Signature. 
 
 b. Date. 
 
 c. Certainty of terms. 
 
 d. Delivery. 
 
 As to denial of execution, see 
 Pleadings, V, d. 
 m. Mutuality and assent. 
 
 a. Mutuality. 
 
 b. Assent. 
 
 c. Acceptance without signature. 
 
 d. Public advertisements, rewards, 
 
 bids, bounty. 
 
 e. Ratification. 
 IV. Implied contracts. 
 
 a. Acceptance of services or benefits. 
 
 b. Services beyond contract or under 
 
 abatidoned or broken contract. 
 V. Fraud, mistake, undue influence 
 
 AND duress, as AFFECTING ASSENT. 
 
 VI. Capacity of parties. 
 
 a. Infancy. 
 
 b. Insanity and mental weakness. 
 
 c. Intoxication. 
 
 d. Burden of proof as to capacity. 
 
 As to capacity of married 
 women to contract, see Husband 
 AND Wife. 
 VII. Who may sue; privity. 
 VIII. Consideration. 
 
 See, also, references under this 
 head in Index. 
 IX. Illegality. 
 
 a. Between belligerents. 
 
 b. In violation of law. 
 
 c. Against public policy, 
 A. Effect of illegality. 
 
 X. Construction. 
 XI. Perfoe?iance ; breach. 
 
 a. Time of performance. 
 
 b. Conditions and stipulations re- 
 
 quired to be performed. 
 
 c. Waiver or alteration of condi- 
 
 tions or stipulations. 
 
 d. Acceptance of performance. 
 
 e. Excuses for non-performance. 
 
 XI. Performance, etc. — continued. 
 
 f. Demand; tender; offer to per- 
 
 form. 
 
 g. Part performance. 
 
 h. Manner and sufficiency of per- 
 formance. 
 i. Breach. 
 XII. Rescission; modification; substitu- 
 tion; release. 
 
 a. Rescission. 
 
 b. Modification. 
 
 c. Substitution, merger, novation. 
 
 d. Release and discharge. 
 
 Aa to Payment and Discharge, in general, 
 see that title. 
 
 As to alteration of form of written con- 
 ti'aot, see Alteration of Instrument's. 
 
 As to contracts for sale of personal prop- 
 erty, see Sales, 
 
 As to contracts for sale of real property, see 
 Vendors. 
 
 As to Specific Performance of contracts, 
 see that title. 
 
 I. Form. 
 
 1. Under seal ; bond : The term bond im- 
 plies an instrument under seal: Steamboat 
 Lake of the Woods v. Shaw, 2 G. Gr., 91. 
 
 2. Effect of: The law in force at the time a 
 contract is made determines whether the in- 
 strument is in such form as to be considered 
 under seal or not: Madera v. Jozies, Mor., 304. 
 
 3. An allusion in the instrument to the 
 seal, without any seal or scrawl in fact, does 
 not make the instrument a specialty : Long v. 
 Long, Mor. , 43. 
 
 i. A recog-nizaiice is an acknowledgment, 
 before some judicial officer, of a previous in- 
 debtedness, and must be entered into before 
 and in the presence of such officer. It need 
 not be under seal: Lewis v. Mull, 3 G. Gr., 
 437. 
 
 5. Distinguished from bond : A bond, on 
 the other hand, must be under seal, but need 
 not be executed in the presence of au officer, 
 even though required to be accepted and 
 filed by him : Ibid. 
 
 6. Of record ; bail bond : At common law 
 the mode for taking a recognizance was for 
 the court or magistrate taking the same to 
 state at large to the bail the obligation 
 and its condition to which they assented. Of 
 
2S,S 
 
 CONTRACTS, II, a, b, c 
 
 Execution and delivery. 
 
 this a short minute was made at the time, 
 but it need not be signed. From this minute 
 a formal record of a recognizance was pre- 
 pared, and upon being filed, it became a part 
 of the record of the court. In whatever 
 form entered into, a bail bond amounts to an 
 obligation of record, being entered into be- 
 fore a court or magistrate duly authorized to 
 do some particular act : State v. Gorley, 2-53. 
 Further as to bail bonds, see Criminal 
 Law, III, 12. 
 
 7. A judgment is a contract of record, and 
 as one of the essentials of a contract is the 
 assent of both contracting pai-ties, a judg- 
 ment by confession, entered into at the in- 
 stance and request of the defendant without 
 the knowledge or consent of the plaintiff, is 
 not binding: Farmers', etc., Bank v. Mather, 
 30-283. 
 
 II. Execution and delivery. 
 a. Signature. 
 
 8. Where to appear: It is immaterial in 
 what part of a memorandum of a contract 
 the ilames of the parties appear. It is a suf- 
 ficient signing, under the statute of frauds, 
 if a party's name is signed in any part, pro- 
 vided the signature is put there by the party 
 or by his authority, and is applicable to the 
 substance of the written agreement ; Wise v. 
 Ray.ZQ. Gr., 430. 
 
 9. Pleading ; proof: When a written con- 
 tract is set out in the pleadings and recog- 
 nized by them on both sides, it is not essen- 
 tial to prove the signature : Breioer's Estate 
 V. Crow, 4 G. Gr., 520. 
 
 See further. Pleadings, V, d. 
 
 10. Signature by one for all: All the per- 
 sons jointly interested in a written contract 
 as joint contracting parties may be liable, 
 where one or more of the parties sign the 
 same, if the signature is intended to bind all 
 and is so accepted: Seekell v. Fletcher, 58- 
 330. 
 
 11. One partner individually for all: So 
 where one partner signs his individual name 
 ■with the understanding of himself and the 
 other partners that it is to bind the firm, and 
 it is accepted by the other party with such un- 
 derstanding, the firm will be bound : Barcroft 
 V. Haworth, 29-463. 
 
 Fraud or mistake: As to how far fraud or 
 mistake can be relied upon to defeat a con- 
 tract duly signed, see infra, Y. 
 
 By agent : As to execution of a contract 
 by an agent and how far the same is binding, 
 either upon the agent or the principal, see 
 Agency. Ill, a. 
 
 12. Official capacity ; personal liability: 
 The general rule is that the language of the 
 body of the instrument controls, and if that 
 imports a personal obligation it will be held 
 to be such, notwithstanding the signers have 
 attached to their names some oflSoial designa- 
 tion : and where the contract was one which 
 the signers had no right to execute in their 
 ofiScial capacity, and which, in the body of 
 it, appeared to be executed in their individ- 
 ual capacity, heldl that they were individu- 
 ally bound : Revolving Scraper Co. v. Tuttle, 
 61-433. 
 
 13. Persons assuming to bind a corporn- 
 tiou by covenants made by them in its name 
 become personally liable if there is no cor- 
 poration to be bound: Allen v. Pegram, 16- 
 163. 
 
 14. Where a constable contracted for the 
 board of a prisoner, with the express agree- 
 ment that the other party should look to the 
 county for his compensation, held, that he did 
 not become personally liable : White v. Jones, 
 67-241. 
 
 And see Agency, §§ 98-125, and Schools, 
 g§ 78-81. 
 
 b. Date. 
 
 15. Presumption: As between the parties 
 to an instrument, the date thereof raises a 
 legal presumption of the time of its execu- 
 tioii, but as to persons not parties no such pre- 
 sumption arises : Meldrum v. Clark, Mor., 130. 
 
 I c. Certainty of terms. 
 
 16. Power to make certain: Where a 
 cpntract provided for the making of certain 
 improvements in accordance with specifica- 
 tiohs to be furnished by the other party, held, 
 that as the latter had it in his power to render 
 the contract certain, he could not object to it 
 for uncertainty : Awivbon County v. Ameri- 
 can Emigrant Co., 40-460. 
 
 1 7. Where the vendee of land agreed that in 
 case he sold the same for more than the pur- 
 chase price, and a reasonable amount in ad- 
 dition thereto, he would pay vendor one-half 
 
CONTRACTS, II, d; III, a, b. 
 
 289 
 
 Delivery. — Mutuality and assent. 
 
 of the excess, it being contemplated that the 
 land might prove to be coal land and worth 
 much more than the purchase price, held, 
 that such contract veas not void for uncer- 
 tainty : Miller v. Kendig, 55-174 
 
 d. Delivery. 
 
 18. By third person: Where a contract 
 ■was executed and placed in the hands of a 
 third party to be delivered over upon the 
 performance of conditions, held, that such 
 third party had authority to make final de- 
 livery without direction from the party to 
 the contract : Burlington, O. R. & M. R. Co. 
 V. Palmer, 43-223. 
 
 19. IJnaiithorized delivery ; railway sub- 
 scription: Where it was provided in a sub- 
 scription of stock to a railway company that 
 the subscription should be turned over to the 
 company and become binding upon the sub- 
 scribers when a, committee named therein 
 should be satisfied that the road had been 
 completed as therein specified, held, that a 
 delivery of the subscription without the per- 
 formance of the conditions required was un- 
 authorized and did not bind the subscribers : 
 Davenport & St. P. R. Co. v. O'Connor, 40- 
 477. 
 
 20. Delivery after rescission: Where a con- 
 tract was executed coupled with conditions, 
 such conditions not being performed, and 
 the party to the contract notified the person 
 holding it for delivery that he would not be 
 further bound thereby, and it was afterward 
 delivered to the other party, who had notice 
 of the refusal of the first party to be bound, 
 held, that the contract could not be enforced': 
 Hastings <& A. R. Co. v. Miles, 56-447. 
 
 III. Mutuality and assent. 
 a. Mutuality. 
 
 21. Essential: Mutuality of obligation is 
 essential to the validity of a contract : Vslier 
 V. Livermore, 2-117. 
 
 22. Unilateral: While it is competent for 
 parties to make a unilateral contract, the in- 
 tention to do so must be clear and satisfac- 
 tory to warrant such a construction : Flanders 
 V. Merrill, 38-583: Nowlin v. Pyne, 40-ie6. 
 
 as. Therefore, held, that an agreement to 
 ■convey, upon payment of specified purchase 
 Vol. I — 19 
 
 money to the other party, was sufficient in a 
 particular case to bind the purchaser : Flan- 
 ders V. Merrill, 38-583. 
 
 24. The fact that a contract recognizes a 
 possibility of failure to perform on the part 
 of one of the parties will not show conclu- 
 sively that the conti'act was not intended to 
 be binding upon such party : Nowlin v. Pyne, 
 40-166. 
 
 25. Courts will not give a unilateral con- 
 struction to contracts, unless their terms 
 clearly and beyond question show that such 
 was the intention of the parties : Barrett v. 
 Dean, 31-423. 
 
 26. Privilege 1o purchase: A contract in 
 a lease of land to sell the undivided half of 
 the premises, in case the lessee shall conclude 
 to purchase at a certain time named, and at 
 a price fixed, is not necessarily wanting in 
 mutuality: Crawford v. Paine, 19-172. 
 
 27. Agreement to purchase of third 
 party: A contract between A. and B., by 
 which the former agrees to purchase land of 
 C. and pay G. therefor, cannot be be enforced 
 by him, there being no consideration moving 
 from A. to B., and C. not being a party nor 
 bound: Phillips v. VanSahaiek, 37-229. 
 
 b. Assent. 
 
 28. Wanting as to one particular: Where 
 one of the parties named in a contract, when 
 it was presented to him for signature, made 
 a memorandum thereon in pencil, indicating 
 that in one respect the contract was wroug, 
 and then signed it, held, that there was no 
 assent on his part, and that the contract was 
 not binding, although the other party misun- 
 derstood such memorandum : Richards v. 
 Burden, 59-723, 786. 
 
 29. Illegal condition: Where parties to a 
 contract do not agree as to one of the condi- 
 tions thereof, the contract is not binding, 
 even though the condition as to which they 
 disagree would be illegal if incorporated 
 therein : Steel v. Miller, 40-402. 
 
 30. Assent to entire proposition: While 
 an offer by one pai'ty, assented to by the 
 other, wiU generally constitute a contract, 
 the assent must comprehend the whole of the 
 proposition. It must be exactly equal to its 
 extent and terms and must not qualify it by 
 any new matter. A proposal to accept, or 
 acceptance of an offer on terms varying from 
 
290 
 
 CONTRACTS, III, b. 
 
 Assent. 
 
 those proposed, amounts to a rejection of the 
 ofier : Baker v. Johnson County, 37-186. 
 
 31. Proposition and acceptance: An ac- 
 ceptance in order to bind the parties must be 
 unequivocal and unambiguous. Its language 
 should be such as to leave no avenue of 
 escape for the party using it from the obliga- 
 tion of the contract based upon such proposi- 
 tion and acceptance : Goodenow v. Barnes, 
 40-561. 
 
 32. Time for acceptance: Where an offer 
 is made without limitation as to time, it vrUl 
 be considered a continuing one, and good for 
 at least a reasonable time unless withdrawn : 
 Judd V. Day, 50-347. 
 
 33. Withdrawal of proposition: Where a 
 memorandum of pieces of goods was fur- 
 nished marked " good for spring orders," and 
 goods were furnished thereunder, held, that 
 the memorandum was but a continuing off er, 
 binding upon the party only so far as acted 
 upon by the other party, and which might 
 be withdrawn at any time without liability 
 in damages for failure to fill further orders 
 after giving notice of such withdrawal : Reis 
 V. McConnel, 60-463. 
 
 34. Parol acceptance: Where an offer is 
 made in writing, and the party to whom it is 
 made directs a third person as his agent to 
 obtain better terms if possible, and if not, to 
 accept the offer, and the offer is then ac- 
 cepted in parol, the contract is to be regarded 
 as oral and not written : Hulbert v. Atherton, 
 59-91. 
 
 And see infra, % 55. 
 
 35. Concurrent assent: Although consent 
 of the parties is necessary, it is not essential 
 that their wiUs should concur at the same 
 instant of time. If the assent of the party 
 receiving a proposition is declai-ed before 
 the will of the party making it is revoked, 
 the presumption is, unless the contrary ap- 
 pears, that the will of the latter continues 
 and the contract becomes complete : Moore v. 
 Pierson, 6-379. 
 
 .-JC. Contracts Iby mail; acceptance by 
 letter: When an offer by letter is accepted, 
 the contract is complete, provided the party 
 making the offer is alive at the time of such 
 acceptance: Ibid. 
 
 37. When a proposal is accepted by lettei-, 
 the contract is deemed to become complete 
 when the letter is mailed, provided the offer 
 
 is standing and the acceptance is made 
 within a reasonable time : Ferrier v. Storer, 
 63-484. 
 
 38. When a negotiation is carried on by 
 letter, the party to whom an offer is made is 
 held to have accepted or rejected it from the 
 time his answer is deposited in the mail: 
 Hunt V. Higrfian, 70 . 
 
 39. Acceptance after the time limited, or in 
 the absence of express limitation, after the 
 lapse of a reasonable time, does not impose 
 upon the person making the offer any obliga- 
 tion, and he is not bound by the acceptance, 
 although he fails to notify the acceptor that 
 the acceptance is too late : Ibid, 
 
 40. The burden of proving that the letter 
 of acceptance was mailed within a reason- 
 able time is upon the party seeking to estab- 
 lish the contract : Ibid. 
 
 41. Answer must correspond to proposi- 
 tion : To constitute a contract by correspond- 
 ence one letter must contain a definite propo- 
 sition and the answer must be an unqualified 
 acceptance: Baxter v. Bishop, 65-583. 
 
 42. An offer is not accepted when the re- 
 ply contains a qualification : Clay v. Ricketts, 
 66-362. 
 
 43. Certain matters contained in a letter 
 making a proposition, held not to constitute 
 a condition upon which the proposition was 
 made, and therefore not necessary to be as- 
 sented to by the party accepting : Ferrier v. 
 Storer, 63-484. 
 
 44. In a particular case, held, that letters 
 between the parties were not sufficient to 
 constitute a proposition on one hand, and an 
 acceptance on the other, for the reason that 
 the proposition did not clearly appear and 
 the acceptance did not conform to the terms 
 of the proposition : Knight v. Cooley, 34r-318. 
 
 45. Evidence consisting of letters consid- 
 ered, and held not to amount to an accept- 
 ance of a proposition : Crane v. Gritton, 54- 
 738. 
 
 46. Receipt of acceptance must be shown : 
 It is not sufficient proof of a contract to show 
 an acceptance of a proposition addressed to 
 the party making it by the party to whom it 
 was made, through the postofifice, without 
 evidence of its receipt by the party to whom 
 it is sent : Compton v. Comer, 4^577. 
 
 47. The place of contract is where the offer 
 is made ; and where an offer of sale is made. 
 
CONTRACTS, HI, b, c, d. 
 
 291 
 
 Assent. — Acceptance. — Advertisements and rewards. 
 
 the payment of money by the opposite party 
 in accordance with the proposition should be 
 at that place unless otherwise speciflpd : Saw- 
 yer V. Brossart, 67-678. 
 
 48. Compliance with proposition: While 
 there can be no contract without the consent 
 of the parties, it is not necessary that their 
 wills should concur at the same instant. If 
 A, promises B. to pay him a certain sum of 
 money if he will do a particular act, and B. 
 does the act, the contract becomes binding 
 although B. at the time of the promise does 
 not engage to do it: Ooodpaster v. Porter, 
 11-161. 
 
 49. Upon the performance of the condition 
 by the promisee the contract is clothed with 
 a valid consideration which relates back, and 
 the promise at once becomes obligatory : Des 
 Moines Valley B. Co. v. Graff, 37-99. 
 
 50. A mere voluntary compliance with the 
 terms of a proposed contract which has never 
 been completed does not render it obligatory 
 upon the other party : Overman v. Kerr, 
 17-485. 
 
 61. Where a step-mother agreed that if 
 her step-daughter would remain unmarried, 
 and live with her and assist her in caring for 
 her property, she would convey such prop- 
 erty to such step-daughter, and the latter did 
 remain and perform the services contem- 
 plated, held, that an acceptance of the terms 
 of the contract might be inferred from the 
 rendering of the services : Franklin v. Tuck- 
 erman, 68-572. 
 
 c. Acceptance without signature. 
 
 53. Acceptance of written contract: 
 
 Where a contract is signed by one party and 
 delivered to and acted upon by the other, 
 the latter may maintain an action thereon 
 although it is not signed by him: Dows v. 
 Morse, 63-231. 
 
 53. Where one party accepts and adopts 
 as binding upon him a written contract 
 signed by the other party thereto, and acts 
 upon it, he becomes bound thereby to the 
 same extent as if he had put his name to it : 
 Attix V. Pelan, 5-336. 
 
 Vendee may be bound by a contract to con- 
 vey executed by the vendor and accepted by 
 the vendee, although the latter does not sign 
 it : See Vendors, §§ 804, 205. 
 
 54. Mere verbal consent to the making of 
 a written contract by another, which does 
 not purport to bind the person thus consent- 
 ing, will not make him a party thereto: 
 Mitchell V. McHennj, 62-353. 
 
 55. Oral contract: If the party thus con- 
 senting verbally agrees to be bound by such 
 contract, it wiU be an oral and not a written 
 contract as to him : Ibid. 
 
 And see supra, g 34. 
 
 d. Pvhlic advertisements, rewards, 
 hids, bounty. 
 
 56. Representations in public advertise- 
 ments: Where a bank had induced the pub- 
 lic to receive bank bills of another institution 
 by representations in its public advertise- 
 ments as to the solvency of such institution, 
 and such bills had subsequently become 
 worthless, held, that the bank inducing their 
 acceptance was liable on its representations 
 to every individual who saw the advertise- 
 ment, or heard their representations, and 
 acted thereon: Tarbell v. Stevens, 7-163. 
 
 57. Reward for arrest of criminal or re- 
 covery of money: A city cannot legally of- 
 fer a reward for the arrest and conviction of • 
 a criminal: Hanger v. Des Moines, 52-193. 
 
 58. Neither can a county offer such re- 
 ward ; but it may offer a reward for the re- 
 covery of stolen property : Hawk v. Marion 
 County, 48-472. 
 
 59. Where a person in another state acts 
 upon the promise made by a board of super- 
 visors in Iowa to pay a reward for the arrest 
 and conviction of persons who have robbed 
 the county treasury, he is bound to know the 
 fact that the board has no power to offer 
 such i-eward. In such case the members of 
 the board will not be individually liable: 
 Huthsing v. Bosquet, 3 McCrary, 569. 
 
 60. Under the statutory provision (Code, 
 § 4173) that no compensation, fee, or reward 
 can be paid to or received by a public ofScer 
 of the state for services rendered or expense 
 incurred in procuring a demand for a fugitive 
 from justice, or the surrender of such fugi- 
 tive from justice, etc., held, that a deputy 
 sheriff who had, under contract with the 
 surety on the bail bond of the escaped crim- 
 inal, ascertained the whereabouts of such 
 criminal and brought him back under requisi- 
 
292 
 
 CONTRACTS, III, e. 
 
 Ratification. 
 
 tion, could not recover from such surety 
 tlie sum stipulated in the contract : Day v. 
 Toumsend, 70 . 
 
 61. If the reward for the recovery of the 
 money is independent of that for the arrest 
 and conviction of the criminal, it may be re- 
 covered although the latter cannot be : Hawk 
 V. Marion County, 48-473. 
 
 62. Where a reward was offered by a 
 county for the recovery of money, held, that 
 a person giving information leading to the re- 
 covery of a portion of the money was en- 
 titled to a pro rata share of the reward : Ibid, 
 
 63. Peace officers acting under process in 
 arresting a criminal are not entitled to a re- 
 ward offered for such arrest unless the terms 
 of the reward offered clearly include them : 
 Means v. Hendershott, 34-78. 
 
 €4. Bid: Where the right to reject any 
 and all bids is reserved in a proposal made 
 according to law by the board of directors of 
 a school district to let a contract to the 
 highest bidder, thg action of the board in 
 awarding the contract cannot be controlled 
 by an action of mandamus at the suit of a bid- 
 der claiming to be entitled to the awarding of 
 the contract: Hanlin v. Independent Dist., 
 66-69. 
 
 65. Bounty: One who volunteers before 
 the offer of a bounty is not entitled to the 
 bounty offered although he believed at the 
 time of volunteering that the bounty had al- 
 ready been offered: Wells v. Scott County, 
 36-141. 
 
 e. Ratifioation. 
 
 66. Estoppel: Where the parties to a 
 contract mutually recognize it as binding 
 upon them by performing its conditions, as 
 well as by temporary modifications of its 
 terms asked by one party and granted by the 
 other, such acts are suflScient to estop both 
 from setting up want of obligation upon 
 either: Riohm,ondv. Dubuque &8. C. R. Co., 
 33-433, 491. 
 
 See further. Estoppel. 
 
 67. Katification of understanding: 
 Where, in a negotiation between parties, one 
 of them acts under his understanding, al- 
 though an erroneous one, and the other ac- 
 cepts such understanding and proceeds in 
 accordance therewith, he thereby ratifies the 
 contract as understood by the other party: 
 Hayes v. Steele, 33-44. 
 
 6S. Ratiftcation of act done under du- 
 ress: K the maker of a note procured by 
 duress afterward accepts the surrender of a 
 prior valid note for the same indebtedness, 
 which prior note is then canceled on the 
 strength of the execution of the second note, 
 he thereby ratifies and confirms the note exe- 
 cuted under duress and it becomes binding : 
 Bartle v. Breniger, 37-139. 
 
 69. Ratification of unautliorized acts of 
 agent: The ratification of an unauthorized 
 act of an agent will bind the principal to the 
 same extent as though the agent had had 
 authority : Berryhill v. Jones, 35-335. 
 
 70. Such a ratification relates back in legal 
 effect to the time when the contract was 
 made : Herriott v. Kersey, 69-111. 
 
 71. Ratification iu part: The principal 
 cannot, of his own mere authority, without 
 consent of the other party, ratify a transac- 
 tion by his agent in part and repudiate it as 
 to the rest. He must either adopt the whole 
 or none. Therefore, where a ratification is 
 established as to a part, it operates as a con- 
 firmation of the whole as to that particular 
 transaction of the agent : Krider v. Trustees 
 of Western College, 31-547. 
 
 Further as to ratification of unauthorized 
 acts of agent or officer, see Agency, V; and 
 Municipal Cokpohations, §§ 62-65 and 834- 
 836. 
 
 As to ratification of contract as to purchase 
 of land, see Vendors, §^ 6, 7. 
 
 72. Ratification of change of contract: 
 Where a party without authority assumes to 
 change or release a contract obligation in be- 
 half of another, such change will not be 
 binding upon the person in whose behalf it is 
 made unless acquiesced in by him : Doyle v. 
 Rutledge, 33-553. 
 
 73. Tlie burden of proof will be on the 
 party relying on such change to show 'fiiat 
 the party to be bound thereby was made ac- 
 quainted with the new arrangements and 
 assented thereto : Ibid. 
 
 74. Partial payment: Where a school 
 board paid to a teacher a sum of money 
 claimed for services rendered under a con- 
 tract, but at the same time repudiated the 
 contract, hdd, that the payment did not 
 amount to a ratification as to the balance of 
 the contract: nerrington v. District T'p, 
 47-11. 
 
CONTEACTS, IV, a. 
 
 293 
 
 Implied. — Acceptance of services. 
 
 IV. Implied conteaots. 
 a. Acceptance of services. 
 
 75. Voluntary serTice not accepted: The 
 
 performance of labor for another without 
 privity or request, with no voluntary accept- 
 ance of the labor shown, affords no cause of 
 action, however meritorious or beneficial it 
 may have been to the party for whom it was 
 performed : Hathaway v. Winneshiek County, 
 30-596. 
 
 76. Promise implied from request or ac- 
 ceptance of services; quantum meruit: 
 Where one performs services for another at 
 his request or with his consent, without any 
 agreement or understanding as to wages or re- 
 muneration, the law implies a promise to pay 
 the reasonable value of the services, and the 
 same may be recovered upon a quantum 
 meruit: Sea v. Flathers, 31-545. 
 
 77. Where a party knowingly and without 
 objection permits another to render services 
 for him of any liiud whatever, the law im- 
 plies a promise to pay what the same are 
 reasonably worth : Shelton v. Johnson, 40-84 
 
 78. Gratuitous services ; agreement to re- 
 pay: Where one renders services for another 
 gratuitously, and with no expectation of 
 being paid, there is no moral obligation in- 
 curred which will support a subsequent 
 promise to pay. Under such circumstances 
 no obligation, either legal or moral, is in- 
 curred : Allen v. Bryson, 67-591. 
 
 79. Services of member of family: Ordi- 
 narily the law implies a promise to pay for 
 services rendered which are known and ac- 
 cepted ; but where the person rendering the 
 service is a member of the family of the per- 
 son served and receiving support therein, 
 either as child, relative or visitor, the law 
 presumes such services to be gratuitous, and 
 before compensation can be recovered in such 
 cases it must be shown that there was an 
 express promise or a mutual expectation that 
 compensation should be made: Soully v. 
 Scully, 28-548; Harper v. Kissick, 53-733; 
 Keegan v. Malone's Estate, 63-208. 
 
 80. Where plaintiff rendered services as a 
 member of the family of decedent, in the 
 character of a friend, dependent, or protege, 
 without express contract for payment, or 
 mutual expectation of payment, held, that 
 
 he could not recover for such services from 
 decedent's estate: Sm,ith v. Johnson, 45-308, 
 
 81. Services rendered by a daughter, who 
 has attained majority but has continued to . 
 live with her parents as a member of the 
 family, do not give rise to a promise to pay 
 any consideration for such services, and if 
 such services are rendered without any ex- 
 press promise by the father to pay for them, 
 his subsequent agreement to pay would not 
 be supported by any legal consideration: 
 Chadwick v- Devore, 69-637. 
 
 82. Where a son, a widower, took up his 
 abode with his parents, who were old and in- 
 firm, and carried on the farm on which they 
 lived, receiving his support therefrom, held,- 
 that the law did not raise an implied con- 
 tract for compensation for the services ren- 
 dered: Wilson V. Wilson, 52-44. 
 
 83. Support turnislied to memlier of fam- 
 ily does not give rise to an implied contract 
 to pay for the same in the absence of an 
 agreement or understanding that such sup- 
 port should be paid for ; but in a particular 
 case, held, that an agreement to pay for such 
 support before it was furnished was suffi- 
 ciently shown: VanSandtv. Cramer, 60-434. 
 
 84. Where plaintiff's mother-in-law, being 
 infirm, requested plaintiff to take care of her, 
 which he did, she being bed-ridden and not 
 rendering any service in return, and express- 
 ing her purpose to pay for such services, 
 held, that she was not a member of his fam- 
 ily, and the circumstances would raise an 
 implied contract on which plaintiff could re- 
 cover for such services: Wence v. Wykoff, 
 53-644. 
 
 85. Where defendant lived with plaintiff, 
 his son-in-law, who was in his employ, and 
 occupied a house belonging to defendant, 
 held, that the circumstances were not such 
 as to defeat plaintiff's recovery for defend- 
 ant's board : Rogers v. Millard, 44-466. 
 
 86. Physician's services; quantum mer- 
 uit: Where a consulting physician was 
 called by the physician in the case, and 
 rendered services to the patient without no- 
 tice of an agreement between the attending 
 physician and the patient that such services 
 were to be paid for by the attending physi- 
 cian, held, that the patient was liable to the 
 consulting physician upon an implied, con- 
 tract : Shelton v. Johnson, 40-84. 
 
294 
 
 CONTRACTS, IV, a. 
 
 Acceptance of services. 
 
 87. A physician suing for the value of 
 services rendered has not the burden of prov- 
 ing, when lack of skUl and care in the treat- 
 ment is pleaded as defense, that in such 
 treatment he exercised proper skUl and care, 
 but the burden of proving such defense rests 
 upon defendant : Robinson v. Campbell, 47- 
 635. 
 
 88. The circumstances of a party for whom 
 professional services are rendered by a physi- 
 cian do not constitute an element in fixing 
 the value of such services : Ibid. 
 
 89. Services of attorney: Where one of 
 several co-defendants employed an attorney 
 to act for all, and such attorney rendered 
 services with the knowledge of other co- 
 defendants without any knowledge on the 
 part of the attorney of a special arrange- 
 ment between the defendants as to who 
 should be liable for his compensation, held, 
 that the attorney might recover for such 
 services from one of the co-defendants, not- 
 withstanding a special agi'eement with him 
 by the defendant by whom he was employed 
 that the one employing him should bear all 
 the expenses: McCrary v. Ruddick, 33-521. 
 
 90. Architect's plaus furnished at re- 
 quest: Where a comndttee of the board of 
 directors of a school district instructed an 
 architect to prepare plans to be submitted to 
 the board, the committee not having au- 
 thority to finally adopt plans, and the archi- 
 tect performed services in the preparation of 
 plans, which were afterward not adopted, 
 held, that he might thereby become entitled 
 to compensation from the school district for 
 the expense of preparing such plans : Drisooll 
 V. Independent School Dist., 61-426. 
 
 91. EecoTerlng back money paid : Money 
 voluntarily paid cannot be recovered back: 
 Bailey v. Paullina, 69-463. 
 
 92. Where money has been paid upon an 
 executory agreement which is free from 
 moral turpitude and not prohibited by posi- 
 tive law, but is invalid by reason of the legal 
 incapacity of the party thereto, otherwise 
 capable of contracting, to enter into that par- 
 ticular agreement, the money so paid may, 
 so long as the agreement remains executory, 
 be recovered back by the party paying it, in 
 an action for money had and received : Jef- 
 ferson County V. Burlington & M. R. R. Co., 
 66-385, 400. 
 
 93. Pajnientofdebt by stranger: Where 
 a person not a party to a note, in the pres- 
 ence of the maker, requested a third person 
 to pay it, and such third person did pay it 
 and hand it to the maker, telling him to pay 
 him the amount of the note some time, held, 
 that the request in the presence of the maker 
 without his objection, and his acceptance of 
 the note, raised an implied promise to repay 
 the person who paid it : Bruguier v. Goewey, 
 39-190. 
 
 94. Board furnished decedent: In a par- 
 ticular case, held, that a claim for board and 
 other services rendered to a decedent dur- 
 ing ten years preceding his death, without 
 proof of special contract therefor, it being 
 shown that the services were rendered and 
 no payment received, and it not appearing 
 that they were intended as a gratuity, should 
 be allowed : Moser v. Crooks, 32-172. 
 
 95. Support of child: In the absence of 
 proof of an agreement to the contrary, the 
 law implies liability on the part of a parent 
 for the support of his child, furnished upon 
 request of such parent : Carroll v. McCoy, 
 40-38. 
 
 96. Where, by agreement between plaintiff 
 and defendant, the former had for eight 
 years cared for and supported the child of 
 the latter under an agreement that such care 
 and support should be without charge in con- 
 sideration of the society and services of the 
 chUd, and had at the end of that time sur- 
 rendered the child without objection or claim 
 for compensation, held, that an action for 
 compensation for such care and support could 
 not afterward be maintained, although there 
 was evidence tending to show that the origi- 
 nal contract provided that plaintiff should 
 have the custody of the child for a longer 
 time : Young v. Heater, 63-668. 
 
 97. Compensation for wrong done: When- 
 ever a party has derived a pecuniary ad- 
 vantage from a wrong done by him, and 
 it is competent for the pai'ty suing thereon 
 to waive the tort and maintain an action 
 upon the promise implied by law, there the 
 obligation to pay is a debt, and this regard- 
 less of the form of action in which that obli- 
 gation is sought to be enforced ; but where a 
 wrong is done resulting in no pecuniary ad- 
 vantage to the wrong-doer, and where the 
 action must be in tort, and sound only in 
 
CONTRACTS, IV, b. 
 
 296 
 
 Services beyond, or under abandoned or broken. 
 
 damages, there the obligation to pay is not 
 a debt until ascertained by judgment : War- 
 ner V. Cammack, 37-643. 
 
 98. Burden of proof: An implied as well 
 as an express contract should be established 
 by proof in order 'to authorize recovery 
 thereon, and the burden of proof rests upon 
 the party seeking to establish such contract : 
 Richardson v. Hoyt, 60-68. 
 
 b. Services heyond contract, or under 
 abandoned or hroTeen contract. 
 
 99. Extra services under contract: Where 
 a contractor excavating streets under con- 
 tract was required by the city, and pi-o- 
 ceeded under protest, to excavate to a 
 greater depth than was properly contem- 
 plated by his contract, and such excavation 
 was more expensive than that contemplated 
 by the contract, held, that as to the extra 
 labor involved the contractor was entitled 
 to recover the reasonable value of such labor 
 in addition to the compensation under his 
 contract : Slusser v. Burlington, 47-300. 
 
 100. But where the terms of the contract 
 involved the removal of material claimed 
 Tiot to have been contemplated by the parties, 
 and to be more expensive than that contem- 
 plated, held, that the contractor could not 
 recover extra compensation therefor after 
 having performed the work under an agree- 
 ment with the improvement committee that 
 he should present a claim to the city council 
 for extra compensation : Slusser v. Burling- 
 ton, 43-878. 
 
 101. Where a person employed by the 
 week as a man of all work rendered regular 
 service on alternate nights and also upon 
 Sundays in nursing his employer during 
 sickness, and received his regular wages by 
 the week, and also an extra compensation 
 for his services on Sunday, held, that a ver- 
 dict in his favor for extra compensation for 
 his services at night would not be disturbed : 
 Wilford V. Devin, 43-5159. 
 
 102. Extra services of county officer: An 
 implied contract to pay the value of services 
 rendered and accepted does not arise in case 
 of services performed by a county officer for 
 the county, for which no compensation is 
 fixed bylaw: Jefferson County v Wollard 
 I G. Gr., 430. 
 
 103. Acceptance wilhont authority: Re- 
 strictions being imposed upon boards of su- 
 pervisors as to the extent to which they may 
 render the county liable on a contract for the 
 erection of public buildings, the county will 
 not be held liable on quantum meruit, upon 
 an implied contract for services rendered or 
 material furnished in the construction of 
 such a building beyond the terms of the con- 
 tract; and the fact that the building is ac- 
 cepted and used by the county will not make 
 it liable where such acceptance has in no 
 way influenced the act of the other party in 
 making such additional expenditure: Reich- 
 ard V. Warren County, 31-381. 
 
 104. Services under abandoned contract ; 
 quantum meruit: If a man contracts to 
 work by a certain plan, and that plan be en- 
 tirely abandoned, so that it is impossible to 
 trace the contract and say to which part of 
 the work it shall be applied, the workman 
 will be permitted to chai-ge for the whole 
 work done by measure and value, as if no 
 such contract had been made ; but if the con- 
 tract can be applied to the work performed 
 it should regulate the charge therefor : Hum- 
 mer v. Lockwood, 8 G. Gr., 90. 
 
 105. In a particular case, held, that the 
 facts tending to show an abandonment of the 
 contract were insufficient, and there was 
 nothing to justify an instruction looking to- 
 ward an entire rejection of the contract, so 
 as to allow a recovery without reference to it, 
 and without being bound by it, as far as the 
 work therein provided for had not been 
 changed: Mather v. Butler County, 38-358. 
 
 106. Where a written contract has been 
 abandoned, a reasonable compensation may 
 be recovered for services rendered : McAfferty 
 V. Hale, 34-355. 
 
 107. Terms of the contract as regulating 
 compensation: Where by mutual consent 
 there is a material departure from the con- 
 tract, the party performing services may in- 
 troduce the contract in evidence to regulate 
 the amount of recovery although the altera- 
 tion precludes his recovery upon the contract 
 itself: Stewart V. Craig, 3 G. Gr., 505. 
 
 108. Where it appeared, in an action for 
 work done, that the work was commenced 
 under a written contract, held not error for 
 which the judgment should be reversed that 
 plaintiff was required to produce the contract 
 
296 
 
 CONTRACTS, V. 
 
 Fraud, mistake, etc., as affecting assent. 
 
 and offer it in evidence, though the action 
 was brought on the common counts and the 
 contract ignored by the plaintiff : Mather v. 
 Butler County, 28-253. 
 
 109. If, by the acts of the other party, the 
 person performing labor under a contract is 
 prevented fi-om completing it, he will be en- 
 titled to recover for the labor done in propor- 
 tion to the stipulated price of the whole job : 
 MeCausland v. Cresap, 3 G. Gr., 161. 
 
 110. If the departure from the original 
 plan is directed or assented to by the person 
 for whom the service is to be performed, such 
 person cannot set off, as against the demand 
 for compensation, any claim for damages re- 
 sulting from the alteration, nor for delay 
 caused thereby: Ibid. 
 
 111. JJndei a. quantum meruit count, the 
 plaintiff may recover for work done and ma- 
 terial furnished under a special contract, 
 where the contract has been abandoned or 
 has been fully performed on his part, and the 
 purpose of the action is to recover the com- 
 pensation unpaid. But he cannot, in an ac- 
 tion of this form, recover for materials or 
 work under a special contract, a compensa- 
 tion larger than or other than the price and 
 value fixed in the contract, though for work 
 done or materials furnished outside of the 
 contract he may recover their reasonable 
 value : Mather v. Butler County, 28-253. 
 
 As to recovery for part performance, see 
 infra, g§ 533-546. 
 
 V. Feaud, mistake, undue influence 
 
 AND DURESS AS AFFECTING ASSENT. 
 
 112. Fraud in procuring signature is not 
 
 to be presumed from testimony of the party 
 that he did not sign the contract, the gen- 
 uineness of the signature being established : 
 Jack V. Brown, 60-271. 
 
 113. Where the signatures of directors of 
 a school district as individuals to an order for 
 school books for the use of the district, condi- 
 tioned that it should be binding whenever 
 signed by a majority of such directors, were 
 procured through the representation that the 
 president of the board had agreed to sign the 
 contract, which representation was false, 
 held, that such false representation would 
 constitute fraud vitiating the contract as to 
 the parties whose signatures were procured 
 thereby: Mills v. Collins, 67-164. 
 
 114. Where the ratification of a contract 
 by the electors of the county was obtained 
 by fraudulent means, held, that a court of 
 equity would not lend its aid in enforcing it: 
 Palo Alto County v. Harrison, 68-81. 
 
 115. Failure to read; negligence: The 
 fact that a party signs a paper without read- 
 ing it, supposing its conditions to be other 
 than they are, constitutes such negligence aa 
 to debar him of any relief therefrom in 
 equity : Olenn v. Statler, 42-107. 
 
 116. A party who has signed a written 
 contract cannot be permitted to allege that 
 he was not aware of its contents. The fail- 
 ure to take ordinary precautions to advise 
 himself of the contents of the instrument 
 will constitute negligence : McKinney v. Her- 
 rick, 66-414. 
 
 117. Where a party, having capacity to 
 read an instrument, signs it without reading 
 and without requesting it to be read, if no 
 device is used to put him off his guard, he is 
 bound by it : Gulliher v. Cliicago, R. I. & P, 
 B. Co., 59-416. 
 
 And see Bills and Notes, § 425. 
 
 118. False representations: A party who 
 signs a written contract without reading it, 
 and shows no excuse for relying upon the 
 representations of the opposite party as to 
 its contents, cannot escape liability thereon 
 by showing that such representations were 
 false: McCormaok v. Molburg, 48-561. 
 
 119. A party having ability and opportu- 
 nity to read an instrument signed by him 
 cannot claim that his signature thereto is 
 procured by fraud, if he affixes such signa- 
 ture without reading or becoming aware of 
 the contents of the instrument signed : Wal- 
 lace V. Chicago, St. P., M. & O. B. Co., 67-547. 
 
 And see Equity, §§ 137, 138. 
 
 120. Evidence of oral representations or 
 inducements, either preceding or contempo- 
 raneous with the written contract, cannot be 
 received unless such representations or in- 
 ducements amount to fraud avoiding the con- 
 tract: McKinney v. Her rick, 66-414. 
 
 121. The false representations of one of 
 several persons associated together as parties 
 to a contract on the one pait cannot defeat 
 the rights of the other associates under such 
 contract, when made without their authority 
 or without notice to them : Paddock v. Bart- 
 lett, 68-16. 
 
CONTRACTS, V. 
 
 297 
 
 Fraud, mistake, etc., as affecting assent. 
 
 122. Where a ' party signs a written con- 
 tract with knowledge of its contents and 
 without being misled or deceived with refer- 
 ence thereto, but under the verbal under- 
 standing that it shall not be the measure of 
 the liability between the parties, but shall 
 only be used by one of the parties for the 
 purpose of misrepresenting to third persons 
 what the contract is, the party so signing 
 cannot be relieved therefrom on the gi'ound 
 of fraud: Hutton v. Maines, 68-650. 
 
 123. The fact that a party signs a paper 
 Tinder a mistaken belief as to his liability 
 does not constitute fraud relieving him from 
 Buch contract where the mistake is not pro- 
 duced in any manner by the opposite party : 
 Jarosh v. Easton, 57-569. 
 
 124. Fraud and misrepresentation in the 
 making of a written instrument constitute a 
 good defense to an action at law upon it 
 where they relate to facts material to the 
 interests of the party, and especially where 
 the party relies upon the other party for 
 truthful information as to the facts upon 
 which the contract depends : Hunt v. Carr, 
 3 G. Gr., 581. 
 
 125. False representations made in procur- 
 ing a subscription in aid of a railway, held 
 to be sufficient to invalidate such subscrip- 
 tion : Davis v. Dumont, 37-47. 
 
 126. False and fraudulent representations 
 as to the subject-matter of a contract relied 
 upon by the other party, which operate as 
 an inducement thereto, will defeat recovery 
 by the guUty party even though the fraud 
 was perpetrated prior to the execution of the 
 contract : Nixon v. Carson, 38-338. 
 
 127. Parol evidence is admissible for the 
 purpose of establishing such representation : 
 Ibid. 
 
 Fraud and false representations as a de- 
 fense, see Fraud. 
 
 128. Prior letters: A letter from plaintiff 
 to defendant, written prior to the making of 
 the contract sued on, in which plaintiff rep- 
 resented that it had not made any proposi- 
 tion or arrangement to sell its machines to a 
 certain society doing business within the pro- 
 posed territory of defendant, when in fact it 
 had made such an arrangement, held admis- 
 sible, not for the purpose of varying the 
 contract, but as showing false and fraudu- 
 lent representations of existing conditions: 
 
 Wilson Sewing Machine Co. v. Sloan, 50- 
 367. 
 
 129. Contract procured by fraud of co- 
 maker: Where a suit against joint defend- 
 ants was compromised by them by the exe- 
 cution of a note, and in an action upon such 
 note against one of them it appeared that at 
 the time of such execution of the note there 
 was an arrangement between the creditor 
 and the other joint maker, by which the lat- 
 ter was to induce his co-maker to agree to 
 the compromise, and was to be himself re- 
 leased from any liability, thereunder, Jield, 
 that the agreement between the creditor and 
 the co-maker constituted a fraud upon the 
 other maker such as to defeat recovery upon 
 the note : Mitchell v. Donahey, 62-376. 
 
 130. Party knowing the facts cannot 
 complain: A party who ascertains the facts 
 for himself, or to whom the facts become 
 known before he acts thereon, cannot com- 
 plain of false representations made with ref- 
 erence thereto by the adverse party: Bur- 
 lington, C. R. <& M. R. Co. V. Palmer, 43-222. 
 
 131. Mental Aveakness: It is proper to in- 
 struct the jury to consider the mental weak- 
 ness, or partial or total want of capacity to 
 contract, of a contracting party, and if the 
 want of capacity is even partial, to allow the 
 jury to consider that fact in connection with 
 representations made, if any, for the purpose 
 of determining whether the party was in- 
 duced to enter into the contract by fraud : 
 Oalpin V. Wilson, 40-90. 
 
 132. A very modified degree of mental in- 
 capacity will be sufficient to invalidate a 
 transaction if it is accompanied with impo- 
 sition or any over-exercise of authority: 
 Corbit V. Smith, 7-60. 
 
 Further as to mental weakness, see infra, 
 VI. b. 
 
 133. Mistake of law: Mistake of a party 
 as to the legal effect of a contract entered 
 into by him, where he knows its language 
 and intentionally signs it, will not release 
 him from its enforcement as entered into: 
 Moorman v. Collier, 32-138. 
 
 134. So where a pai-ty knew theterms of a 
 bond which he was signing, and through a 
 mistake of law did not understand the effect 
 of the instrument, held, that he was not en- 
 titled to equitable relief therefrom : Glenn v. 
 Statler, 43-107. 
 
298 
 
 CONTRACTS, V, VI, a. 
 
 Fraud, mistake, etc., as affecting assent. — Capacity of parties. 
 
 135. Mutual mistake of fact; defense: 
 
 Where a material mutual mistake is made by 
 parties in respect to the subject-matter of a 
 contract, the result is that, in contempla- 
 tion of law, there is no contract. The minds 
 of the parties do not meet. If action be 
 brought on such contract, it is competent for 
 defendant to deny its existence, and in sup- 
 port of the denial he may allege and prove 
 the mistake. Such a defense may be made 
 in an action at law and is not equitable in its 
 nature. But if defendant desires the cancella- 
 tion of the contract on account of such fraud, 
 or that it shall be reformed in order to ex- 
 press the true agreement of the parties, his 
 relief is to be had by a cross-action and will 
 be equitable in its nature: Carey v. Gunni- 
 son, 65-702. 
 
 13C. Mistake of fact: A contract, in a 
 particular case, for the conveyance and trans- 
 fer of swamp lands and swamp land indem- 
 nity by the county to the defendant, held, 
 voidable by the county as having been made 
 under mistake of fact, the county not hav- 
 ing been aware of the fact, known to the 
 other party at the time, that a large amount 
 of swamp land indemnity had already been 
 allowed to the county : Montgomery County 
 V. American Emigrant Co., 47-91. 
 
 Further as to mistake, see Equity, g§ 129- 
 138. 
 
 137. Undue inflneiice: A contract between 
 a devisee under a will and her brother, who 
 was not recognized in the will, by which, in 
 consideration of his assisting her to secure 
 her share, which was in controversy, she 
 agreed that he should have a share in the es- 
 tate, held not to have been procured by 
 undue "influence or fraud : Adams v. Adama, 
 70 . 
 
 Further as to undue influence, see Convey- 
 ances, §§ 36-42. 
 
 188. Guardian and ward: Undue influ- 
 ence on the part of a guardian in contracting 
 with his ward, even after the termination of 
 the guardianship, held sufficient to vitiate 
 the contract: Tucke v. Buchholz, 43-415. 
 
 139. Duress is the actual or threatened 
 violence or restraint of a man's person con- 
 trary to law to compel him to enter into a 
 contract or discharge one : King v. Williams, 
 6.5-167. 
 
 140. The fact that money is paid in satis- 
 
 faction of a fine, while the party makirg 
 payment is under arrest, wiU not be suffi- 
 cient to show that such payment was under 
 duress : Bailey v. Paullina, 69-463. 
 
 141. Threats: In order that duress by 
 threats shall avoid the contract, it must 
 appear that it was wholly in consequence of 
 such threats that the contract was made: 
 Barker v. Brown, 15-70. 
 
 142. Effect: Duress, like fraud, does not 
 make the contract void, only voidable. There- 
 fore it is no defense to a negotiable note in 
 the hands of a bona fide holder, acquiring 
 the same before maturity and for a valu- 
 able consideration without notice: Veach v. 
 Thompson, 1.5-380. 
 
 143. Who may take advantage of: While 
 it may be that the privilege of avoiding a 
 contract on account of duress is personal^ 
 and that no one can take advantage of it but 
 the party himself, yet where one person suf- 
 fers damage by reason of duress inflicted 
 upon another, the person receiving the dam- 
 age may recover therefor : Koehlerv. Wilson, 
 40-183. 
 
 144. Facts considered and held not to 
 amount to technical duress at law, but to 
 indicate such imposition and undue advan- 
 tage as would justify a court of equity in 
 refusing specific enforcement of the contract : 
 Richardson v. Barrick, 16-407. 
 
 Further as to duress, see Mortgages, §§ 5, 
 6 ; and Conveyances, §§ 43-45. 
 
 VI. Capacity of parties. 
 a. Infancy. 
 
 145. Contract void or voidable: The rule 
 respecting the contract of an infant is, that 
 when the court can pronounce it to be to the 
 infant's prejudice, it is void, and when to his 
 benefit, as for necessaries, it is good, and 
 when of uncertain nature, it is voidable at the 
 election of the infant only : Gfreen v._ Wild- 
 ing, 59-679. 
 
 146. Disaffirmance: At common law the 
 general rule was that the minor was not 
 bound unless by some act he had positively 
 affirmed the contract, but under the statute 
 a disaffirmance within a reasonable time is 
 necessary to release him from obligation. 
 (Qode, § 3338): Wright v. Germain, 21-585; 
 Murphy v. Johnson, 45-57. 
 
CONTRACTS, VI, a, b. 
 
 299 
 
 Infancy. — Insanity and mental weakness. 
 
 147. "What will be a reasonable time within 
 which to disaflfirm must be determined by 
 the peculiar circumstances of each case : Stout 
 V. Merrill, 35-47. 
 
 148. As to what is a "reasonable time,'' 
 see Jenkins v. Jenkins, 13-195; Wright v. 
 Oermain, 81-585; Weaver v. Carpenter, 42- 
 343; Hoover V. Kinsey Plow Co., 55-668. 
 
 149. Disaffirmance by an action brought 
 three or four years after plaintiff, a female, 
 attained her majority, the only excuse offered 
 for the delay being that she was informed by 
 her mother and neighbors that she could not 
 ■disaffirm the contract until her minor brother 
 became of age, held, not within a reasonable 
 time, especially in view of the further facts 
 that she did not ask legal advice, and delayed 
 at least three months after she was informed 
 that she could disaiBrm the contract before 
 bringing action: Green v. Wilding, 59-6.79. 
 
 150. In case of the marriage of the minor, 
 a reasonable time for disaffirmance com- 
 mences to run from the time of such mar- 
 riage : Jones v. Jones, 46-466. 
 
 151. The right of an infant to avoid his 
 contracts is absolute and paramount to all 
 equities in favor of third persons, even pur- 
 chasers without notice: Jenkins v. Jenkins, 
 12-195. 
 
 152. The restoration of the fruits of the 
 contract is essential to the disaffirmance 
 thereof: Stout v. Merrill, 35-47. 
 
 153. Yet the minor is only bound to re- 
 store money or property received by virtue 
 of the contract remaining under his control 
 after attaining majority : Jenkins v. Jenkins, 
 13-195. 
 
 154. The statute makes no distinction £is 
 between property and money remaining un- 
 der the control of the minor. He may dis- 
 affirm without tendering back either prop- 
 erty or money under his control unless it is 
 the identical property or money received by 
 him by virtue of the contract: Hawes v. 
 Burlington, C. B. & N. B. Co., 64-315. 
 
 155. The agreement of an infant for the 
 repayment of money of which he has had 
 and retains the benefit, not having been dis- 
 affirmed within a reasonable time after at- 
 taining majority, is binding: Stucker v. 
 Yoder, 33-177. 
 
 156. The minor may disaffirm his con- 
 tract before attaining majority. (Overruling 
 
 Murphy v. Johnson, 45-57) : Childs v. Dob- 
 bins, 55-205. 
 
 157. A minor doing business as an adult, 
 
 and thus misleading others as to his minority, 
 cannot disaffirm a contract thus made. The 
 statute expressly excepts such contracts from 
 the provisions as to disaffirmance. (Code, 
 § 2339) : Oswald v. Broderick, 1-380. 
 
 158. The fact that an infant is engaged in 
 business as an adult does not make his con- 
 tracts binding unless the party with whom 
 he contracts is thereby deceived and believes 
 that he is of age. If the fact of minority ia 
 known to the other party, the minor is not 
 bound : Better v. Marchant, 30-350. 
 
 159. The exception here made as to the 
 power of a minor to disaffirm his contracts by 
 reason of his having engaged in business as 
 an adult does not depend upon the extent of 
 his interest or the manner of his connection 
 with the business : Jaques v. Sax, 39-367. 
 
 160. Therefore, held, that a minor who was 
 a member of a partnership, but without 
 capital invested, and rendering his services 
 only, as his contribution to the capital of the 
 firm, was still to be considered as engaged in 
 business as an adult : Ibid. 
 
 161. The fact that the minor is thus en- 
 gaged in business as an adult is evidence 
 upon which one dealing with him is author- 
 ized to conclude, that he is an adult. It is 
 immaterial whether the contract upon which 
 it is thus sought to hold the minor is one re- 
 lating to the business in which he is engaged 
 or not : Ibid. 
 
 162. Personal services: If a minor has 
 been paid for services rendered, he cannot 
 again recover therefor in an action by next 
 of kin : Murphy v. Johnson, 45-57. 
 
 b. Insanity and mental weakness. 
 
 163. Imhecility: While mere weakness of 
 intellect is not sufficient ground for setting 
 aside a contract, yet if it appears that an un- 
 conscionable advantage has been taken of the 
 imbecility of one party, and he has been led 
 to make a very imprudent disposition of 
 property, the contract will be held void in a 
 court of equity, if the nature of the con- 
 tract be such as to justify the conclusion that 
 the party did not exercise deliberate judg- 
 ment, but was imposed upon, circumvented 
 
300 
 
 CONTRACTS, VI, b, c. 
 
 Insanity and mental weakness. — Intoxication. 
 
 or overcome by cunning or artifice, or undue 
 influence: Harris v. Wamsley, 41-671. 
 
 164. Insane persons: Persons of unsound 
 mind will be held liable as to executed con- 
 tracts, where the transaction is in the ordi- 
 nary course of business, is fair and reason- 
 able, and the mental condition was not 
 known to the other party, and the parties 
 cannot be put in statu quo: Abbott v. Creal, 
 56-175; Behrens v. MoKenzie, 23-333; Alex- 
 ander V. Hasldns, 68-73. 
 
 165. This rule is not, however, followed by 
 the federal courts in Iowa: Edwards v. 
 Davenport, 20 Fed. Rep., 756. 
 
 166. While an insane person maybe liable 
 on a contract for necessaries, or on an agree- 
 ment made with a person who has no knowl- 
 edge of his condition, and by which his estate 
 is benefited, he is not bound as surety on a 
 note given by the maker for an antecedent 
 indebtedness to a person without knowledge 
 of his condition, at least in the absence of 
 any showing that credit was granted on the 
 strength of his name : Van Patton ~v. Beats, 
 46-63. 
 
 167. A contract with an insane person 
 made by one having knowledge of the in- 
 sanity will not be sustained: Alexander v. 
 Haskins, 68-73. 
 
 168. Where a contract has been entered 
 into (under circumstances which would or- 
 dinarily make it binding) by a sane person 
 with one who is insane, and that contract 
 has been adopted and is sought to be enforced 
 by the representatives of the latter, the in- 
 sanity of such party cannot be set up as a 
 defense by the other : Allen v. Berryhill, 27- 
 684 
 
 169. Where a person of unsound mind 
 makes a contract which is beneficial to him, 
 the law supplies or presumes the existence of 
 the requisite capacity, or estops the other 
 jJarty to set up and sustain such an objection : 
 Ibid. 
 
 170. The courts will not, in general, lend 
 their aid to the execution of a contract, 
 where the party sought to be affected was at 
 the time under mental incapacity, unless it be 
 for necessaries ; but if the incapacity was un- 
 known and no advantage was taken of it, 
 and the contract is executed so that parties 
 cannot be put in statu quo, it wiU not be set 
 aside. If, however, parties can be placed 
 
 in statu quo, it will make little difference 
 whether the question arises upon an executed 
 or an executory contract. A party who is 
 actually at the time insane cannot bind him- 
 self civilly: Corbit v. Smith, 7-60. 
 
 171. Evidence; burden of proof: Where 
 insanity is once shown to have existed, the 
 presumption is in favor of its continued ex- 
 istence till the time of the contract, and the 
 burden of proof is on the party seeking to 
 disprove insanity ; but if habitual insanity is 
 not established, the presumption is that the 
 party is like all human creatures, that is, 
 rational, and the fact of a prior period of 
 lunacy will not throw the burden of pi'oof on 
 the party setting up the competency : Ibid. 
 
 172. If no extraneous influence is exerted, 
 the character of the action itself will go far 
 to show the capacity of the party at the time r 
 Ibid. 
 
 1 73. Epilepsy not of long duration is not 
 to be considered as amounting to habitual 
 insanity ; and if insensibility or unconscious- 
 ness is not shown to have existed at the time, 
 the presumption is that the pai-ty had suf- 
 ficient capacity; but if the paroxysms have 
 been violent and frequent in their return, 
 and have continued any considerable length 
 of time, incapacity to contract might result, 
 and the jury or court might be justified in 
 treating the epileptic as habitually insane: 
 lUd. 
 
 ' 174. Evidence in particular cases consid- 
 ered, and held not sufficient to show such 
 insanity on the part of the contracting party 
 as to avoid his acts : Hubbard v. Hoag, 60- 
 756 ; Baldrick v. Oarvey, 66-14. 
 
 As to insane persons, see, also. Convey- 
 ances, §§ 9-12. 
 
 Further as to evidence of insanity, see 
 Evidence, §§ 81-83, 859, 860. 
 
 c. Intoxication. 
 
 1 75. Degree ; fraud : To authorize the set- 
 ting aside of a contract on the giound of 
 intoxication of the party, it is necessary 
 that the drunkenness be of an excessive 
 character; but if it appear that the drunk- 
 enness was brought about by the other party 
 for the purpose of procuring an unconscion- 
 able advantage, and it is shown that the con- 
 tract is not fair, it wfil be avoided for fraud : 
 Willcox V. Jackson, 51-208. 
 
CONTEACTS, VI, d; VII. 
 
 301 
 
 Burden of proof as to capacity. — Who may sue; privity. 
 
 176. Mere moderate drunkenness will not of 
 itself avoid a deed or contract. To have that 
 effect the intoxication must be so excessive 
 as to deprive the person of the consciousness 
 of what he is doing. Such excessive drunk- 
 enness is a defense whether voluntary or 
 procured by the other party: Mansfield v. 
 Watson, 2r-in. 
 
 177. But if there is a contrivance or man- 
 agement on the part of the other party to 
 draw the person in to drink, and thus to take 
 advantage of his intoxication, it may consti- 
 tute a defense even where the drunkenness 
 is less than excessive : Ibid. 
 
 178. Voidable, not Toirt: In either event, 
 such intoxication only renders the contract 
 voidable and not void, and the party on re- 
 covering his understanding may adopt the 
 same: Ibid. 
 
 17i). Kestilution: Whether a party seek- 
 ing to evade a contract on the ground that he 
 was incompetent to contract on account of 
 drunkenness can be heard to complain with- 
 out making restitution of the money received 
 under the contract, qucere : Hawley v. Howell, 
 60-79. 
 
 d. Burden of proof as to capacity. 
 
 ISO. It is incumbent upon a party seeking 
 to enforce a contract against a person under 
 disabihty, on the ground that it is an excep- 
 tional contract which such person has author- 
 ity to make, to show that the case comes 
 within the exception : Hodemeyer v. Rodman, 
 5-436. 
 
 Further as to burden of proof in case of 
 disability, see supra, §,5 171-174. 
 
 VII. Who mat stje ; peivitt. 
 
 By assignee: That action on contract m^y 
 be brought by assignee in his own name, 
 see Assignment, §§ 28-31; and Parties, 
 II, a. 
 
 181. Capacity to enforce: If a person exe- 
 cutes his obligation to another under an agree- 
 ment that it shall be transferred to any third 
 person who shall do certain labor, the per- 
 formance of which constitutes the considera- 
 tion for the agreement, he cannot question 
 the capacity of the person receiving the obli- 
 gation and doing the labor thereunder to 
 enforce it against him, if such person could 
 
 have enforced the contract had it been made 
 with him originally : Courtright v. Deeds, 37- 
 503. 
 
 182. Privity: Privity of contract must 
 exist between parties to an action thereon. 
 A mere stranger to the contract cannot main- 
 tain action upon it : Davis v. Clinton Water 
 Works. 54-59. 
 
 183. Therefore, where a contract existed 
 between a city and a company agreeing to 
 supply the city with water for the extin- 
 guishment of fire, held, that a property 
 owner of the city could not maintain an ac- 
 tion for damages against the water company 
 for failure to supply water according to the 
 contract with the city, by reason of which 
 failure the property was destroyed by fire : 
 Ihid. 
 
 184. The application of the doctrine of 
 privity of contract is much less frequent 
 under our law than it was at common law, 
 for the reason that the statute makes nearly 
 every kind of contract assignable, so as to 
 permit an action in the name of the assignee : 
 Barron v. Easton, 3-76. 
 
 18.5. A person for whose benefit a con- 
 tract is made may bring action thereon al- 
 though he is not a party thereto ; MeHose v. 
 Dutton, 55-728. 
 
 1 86. Where A. has paid the mioney of B, 
 to C, which C. promises A. to pay to the 
 rightful owner, the law creates a privity be- 
 tween B. and C, and B, may have his action 
 direct against C. : Johnson v. Collins, 14-63. 
 
 187. As to the consideration in such cases, 
 it is not necessary that it should move di- 
 rectly from the plaintiff to support an as- 
 sumpsit. If it moves from a third person, a 
 stranger even, and is adopted by the plaint- 
 iff, it is sufiicient : Ibid. 
 
 188. Action by creditor against new- 
 partner: Where an incoming partner agrees 
 with the old partners to assume the debts of 
 the firm, the creditors of the firm may sue 
 upon such contract : Poole v. Hintrager, 60- 
 180. 
 
 Action upon a mortgage may be brought 
 directly against a party who has purchased 
 the mortgaged premises and assumed pay- 
 ment of the mortgage: See Mortgages, 
 §§ 193-204. 
 
 189. Bond for performance of contract: 
 A bond given by a contractor for the erection 
 
302 
 
 CONTRACTS, VIII. 
 
 Consideration. 
 
 of a building, providing for the performance 
 of the work according to the contract, may 
 provide for the protection of third parties 
 who f urniah material or labor in the com- 
 pletion of the contract, and action upon the 
 bond may be brought by such parties : Baker 
 i\ Bryan, 64-561. 
 
 1 90. Where a contractor for a part of the 
 work of constructing a railway agreed by his 
 contract to pay all just claims growing out 
 of such work, whether against him or his 
 subcontractor, by reason of injury to lands, 
 and for provisions and supplies, and board 
 bills of men and teams, and gave a bond for 
 the performance of such contract, held, that 
 parties who furnished labor and material for 
 the construction of the work under his sub- 
 contractors were entitled to bring action 
 upon the bond : Jordan v. Kavanaugh, 63- 
 152. 
 
 191. Assig'nee assuming' performance: 
 Upon the assignment of a contract, the as- 
 sumption by the assignee of a promise for 
 the benefit of the obligor named therein, 
 fixes a direct liability upon such assignee in 
 favor of such third party : Scott's Adm'rs v. 
 Gill, 19-187. 
 
 192. A party charged by law or agree- 
 ment with a duty necessary to fix the liabil- 
 ity of a third party to the person for whose 
 benefit he is so charged, can, when sued by 
 such person for default, avail himself of 
 any defense available to such third party if 
 he had been sued therefor : ^ed v. Darling- 
 ton, 19-349. 
 
 YIII. CONSIDEEATION. 
 
 193. Gift: A mere voluntary agreement, 
 contract or covenant to transfer property 
 will not be carried into effect in courts of 
 equity. Want of consideration is a good de- 
 fense in such case : Holland v. Hensley, 4r- 
 322. 
 
 194. ProTiding for child: The meritori- 
 ous consideration of providing for a child 
 has always been held sufficient to authorize 
 the enforcement of an executory contract 
 against the party contracting ; but where the 
 contest is between one child and other chil- 
 dren of the same ancestor, the meritorious 
 consideration operates on both sides, and 
 being equally balanced, equity will not in- 
 terfere or lend its aid : Ibid. 
 
 195. Moral consideration: Something 
 more than a mere moral obligation is neces- 
 sary to support a contract. The considera- 
 tion must be such as is esteemed valuable at 
 law: Nightingale v. Barney, 4 G. Gr., 106. 
 
 196. Where one person renders services 
 for another gratuitously, and with no expec- 
 tation of being paid therefor, no moral obli- 
 gation is incurred by the person receiving 
 the services, supporting a subsequent promise 
 to pay. Indeed, a moral obligation alone is 
 not Sufficient consideration for a subsequent 
 promise: Allen v. Bryson, 67-591. 
 
 19 7. A subsequent promise by a father to a 
 daughter who has attained majority, but re- 
 mains a member of the family and performs 
 services as such, to pay for such services, is 
 not supported by any legal consideration; 
 but a prior express promise to pay for such 
 services will be binding; Chadwickv. Devore, 
 69-637. 
 
 198. Support of parent: The moral obli- 
 gation of the child to support an indigent 
 parent is not a sufficient consideration for a 
 promise, on the part of the child, to pay for 
 past expenditures made by third persons for 
 the parent: Dawson v. Dawson, 13-512. 
 
 199. A disposition of property by the 
 owner in behalf of his children, in considera- i 
 tion of an agreement on their part to support 
 the owner during his life, held vaUd, as being 
 both for the consideration of support and for 
 that of love and affection; Shaw v. Ball, 
 55-55. 
 
 200. Support of child: The support of 
 offspring, whether legitimate or illegitimate, 
 is a sufficient consideration to support a con- 
 tract; Armstrong v. Lester, 43-159. 
 
 201. Past consideration: A subsequent 
 promise to do something not required by pre- 
 vious contract, without new consideration, is 
 not binding, even though it would facilitate 
 the performance of the original contract by 
 the other party: Handrahan v. 0' Regan, 
 45-398. 
 
 202. Payment of another's debt: Where 
 one person voluntarily pays the debt which 
 another was compellable to pay, he may re- 
 cover the amount so paid upon proof of an 
 express subsequent promise by the other to 
 repay him, the request to pay being implied 
 from such express promise: Bruguier v. 
 Goewey, 39-190. 
 
CONTRACTS, VIII. 
 
 3oa 
 
 Oonsideration. 
 
 203. Where a party signed a note upon the 
 statement of others that the money on which 
 the note was given had been borrowed, but 
 that they must have another name, held, that 
 there was a consideration therefor : State v. 
 Haskell, 20-276. 
 
 204. A subsequent promise to pay for 
 support previously rendered to the promisor 
 as a member of the family of the promisee 
 would be without oonsideration : Van Sandt 
 V. Cramer, 60-424. And see supra, §§ 79-85, 
 197. 
 
 205. Indemnity: A promise by one person 
 to another, to indemnify the latter for any 
 liability on an obligation at the time entered 
 into at the request of the former, is not with- 
 out consideration, and will support a mort- 
 gage afterward executed to secure the lia- 
 bility which had in the meantime accrued: 
 Duncan v. Miller, 64-223. 
 
 206. What constitutes consideration: 
 Whenever injury to the one party or benefit 
 to the other springs from a consideration, it 
 is sufficient to support the contract : Blake v. 
 Blake, 7-46. 
 
 207. Damage, trouble or inconvenience to 
 the promisee constitutes as good a considera- 
 tion as does benefit or advantage to the prom- 
 isor. The service rendered by one party to 
 the other at his request is always a good con- 
 sideration for a promise: Gordon v. Dalby, 
 30-223. 
 
 208. Therefore, held, that where one party 
 had a contract for carrying the mails, and 
 entered into an agreement with another to 
 perform the service for him and receive the 
 entire consideration to which the former was 
 entitled from the government under his con- 
 tract, there was a consideration for the prom- 
 ise on the part of the original contractor to 
 
 . carry out the agreement : Ibid. 
 
 200. A pi'Omise of one person to sell and 
 deliver chattels has a sufficient consideration 
 in the promise of another to buy and pay for 
 them : Boies v. Vincent, 24^387. 
 
 210. A disadvantage suffered by the 
 promisee will not constitute a consideration 
 for a promise unless it appears that it was 
 suffered at the request, express or implied, of 
 the promisor: Handrahan v. O' Regan, 45- 
 398. 
 
 211. A promise which is binding upon 
 no one cannot constitute a consideration for 
 
 another promise so that the latter may be 
 enforced : Gray v. McReynolds, 65-461. 
 
 212. Indemnity to garnishee: A contract 
 by the plaintiff in a garnishment proceeding 
 to indemnify a, garnishee for any liability 
 arising out of the payment of a judgment is 
 based upon a sufficient consideration, and 
 upon the garnishee being held liable to the 
 original debtor notwithstanding the garnish- 
 ment, such contract of indemnity may be en- 
 forced : Lucy v. Price, 39-26. 
 
 213. Construction of I'iiilroad: An agree- 
 ment to build a railroad into a certain city is 
 a valuable consideration for a subscription by 
 the citizens thereof, whether the agreement 
 is performed or not. Such consideration 
 would support a note given in substitution 
 for another note which was given for the sub- 
 scription thus made: First Nat. Bank v. 
 Hurford, 29-579. 
 
 214. Grold premium: An agreement by a 
 bank, upon return of a certificate of deposit 
 of money payable in gold coin, to pay the 
 sum due on said certificate in currency, 
 adding thereto the premium on gold at that 
 date, held binding: Austin v. Easton, 25- 
 159. 
 
 215. Obligation to make imJ>roTements 
 underlease: The obligation in a lease that 
 the lessee shall put certain improvements 
 upon the land during the term of the lease 
 may constitute a consideration for the lease 
 although no rent is reserved, and the lessee 
 will be liable in damages for failure to make 
 the improvements as agreed : Packer v. Cock- 
 ayne, 3 a. Gr., 111. 
 
 216. An agreement to marry is a good 
 consideration to support a contract: Ar7nr 
 strong v. Lester, 43-159. 
 
 217. Seduction: So Md, where defendant 
 in a prosecution for seduction entered into a 
 bond to marry the prosecutrix and support 
 her and the child : Ibid. 
 
 218. Other cases: A contract by one per- 
 son to erect a building on another's land, 
 with the agreement that when the builder 
 shall cease to occupy it the owner of the land 
 shall pay the cost of the lumber used in its 
 erection, is valid: Stevenson v. Robertson, 
 55-689. 
 
 219. Certain inducements to enter into a 
 contract, lield sufficient to constitute a con- 
 sideration : Tripp v. Boardman, 49-410. 
 
304: 
 
 CONTRACTS, VIII. 
 
 Consideration. 
 
 220. Contract of agent to sell real es- 
 tate : Authority given to a real estate agent 
 conferring upon him the exclusive right to 
 sell certain specified property within a given 
 time, unless such authority be revoked, the 
 compensation being named, is binding upon 
 the person thus employing the agent ; and in 
 case the agent is defeated in effecting a sale 
 and securing the specified commission by the 
 act of the owner in making a sale^thin the 
 time limited and without the revocation of 
 the agreement, the agent will be entitled to 
 compensation for damages sustained. \ The 
 consideration in such case is the labor \and 
 expense of the agent in endeavoring to rckke 
 a sale of the property : Atfix v. Pelan, 5-336. 
 
 221. Subscriptions: To support an acdion 
 upon a voluntary subscription it musy be 
 shown that money has been advanced or ex- 
 pended in accordance with the terms cif the 
 contract and upon the faith of the promise : 
 University of Des Moines v. Livingston, 57- 
 307. 
 
 222. Where a subscription was taken for 
 the purpose of paying off a mortgage upon 
 college property and thus securing the prop- 
 erty from danger of sale under the mortgage, 
 and thereupon large amounts were raised 
 and expended for repairs upon the profierty 
 on the faith of the subscription to extinguish 
 the mortgage, held, that the subscription 
 was binding: Tbid.; S. C, 05-203. 
 
 223. Where expenses have been incurred 
 on the faith of a voluntary subscription, it 
 becomes binding: McDonald v. Gray, 11- 
 508. 
 
 224. A subscription becomes a contract 
 when accepted by the beneficiary and acted 
 upon by the incurring of an obligation or 
 expenditure of money: McCabe v. O'Connor, 
 69-134. 
 
 225. Where a subscription was taken for a 
 sum to be paid to a need}' person to assist 
 her in building a house, held, that such sub- 
 scription must be deemed to have been by 
 way of gift, and that the person for whose 
 aid the subscription was raised could not be 
 enjoined from disposing of the house in the 
 construction of which such subscription had 
 been used : Ibid. 
 
 22(i. A borrowing of money to pay a pre- 
 existing indebtedness in reliance upon a sub- 
 scription constitutes a consideration sufii- 
 
 cient to support the contract: Presbyterian 
 Church V. Baird, 60-237. 
 
 227. A written promise to pay to an edu- 
 cational institution a certain sum per annum 
 for ten years, held to be supported by a 
 sulHcient consideration : Burlington Univer- 
 sity V. Barrett, 23-60. 
 
 228. Subscription upon conditions : Where 
 a subscription was taken upon condition that 
 it should not be payable unless a certain 
 amount was raised by a certain time, and it 
 appeared that such amount was raised, held, 
 that defendant, relying upon an aveiinent 
 that a portion of the amount making the 
 requisite total was fraudulently obtained 
 and unenforcible, had the burden of proof 
 to establish such fact: University of Dea 
 Moines V. Livingston, 65-203. 
 
 229. Where it was stipulated in a contract 
 of subscription that the party to whom the 
 subscription was payable should lease speci- 
 fied premises to a third party without rent, 
 held, that a contract of lease in which the 
 nominal rent of one dollar per year was re- 
 served was a substantial compliance with the 
 terms of the subscription : Thompson v. Stew- 
 art, 60-223. 
 
 230. An agreement to answer for the 
 debt of another, even though in writing as 
 required by the statute of frauds, is not bind- 
 ing if there is no consideration therefor: 
 Bumford v. Furcell, 4 G. Gr., 488. 
 
 231. The discharge of a legal obligation 
 cannot be sufficient consideration to support 
 a contract: Newton v. Chicago, R. I. &P. B. 
 Co., 66-422. 
 
 232. So where certain contractors had 
 agreed to construct a certain line of railroad, 
 and upon complaint to the company that 
 they were losing money on the contract and 
 would have to abandon it, the company be- 
 ing anxious to secure the completion of the 
 work by the time agreed on, promised to pay 
 whatever the work really cobt, held; that the 
 promise of the company was without con- 
 sideration and could not be enforced : Ayres 
 v. Chicago, R. I. & P. R. Co., 53-478. 
 
 233. Where plaintiff erected a dam which 
 was washed out, and afterwards built an- 
 other in its place, under an express contract 
 for compensation, held, that even if the fii'st 
 was carried away by reason of its insuffi- 
 ciency there would be no such duty upon the 
 
CONTRACTS, VIII. 
 
 305 
 
 Consideration. 
 
 plaintiff to replace it as would render an ex- 
 press promise to pay for the second one with- 
 out consideration: Hancock v. McFarland, 
 17-124. 
 
 234. Release: An executory agreement of 
 release without consideration cannot be en- 
 forced: Norris v. Slaughter, 3G. Gr., 116. 
 
 235. A promise by a person who is already 
 liable on an indebtedness to pay such in- 
 debtedness will not constitute a considera- 
 tion for an agreement to release another 
 party from such indebtedness : Early v. Burt, 
 68-716. 
 
 236. Partial payment of an admitted debt 
 will not support a promise to forgive the re- 
 mainder of the debt : Bryan v. Brazil, 53-350. 
 
 237. Nor will the payment of a part of a 
 debt support a promise to forbear to sue for 
 or press the collection of the balance : State 
 ex rel. v. Davenport, 12-335. 
 
 238. An agreement to receive part pay- 
 ment of an indebtedness in full satisfaction, 
 upon cmsideration of an agreement of the 
 other party to pay expenses which may 
 or may not exceed the balance of such in- 
 debtedness, is binding : Kohn v. Zimmerman, 
 34^544. 
 
 239. A compromise, even in settlement 
 of a family difficulty, will not be enforced 
 if executory and without consideration : Nor- 
 ris V. Slaughter, 3 G. Gr., 116. 
 
 240. A compi-omise of conflicting claims, 
 made for the purpose of reaching a settle- 
 ment of partnership affairs, is sufficient con- 
 sideration to support an agreement: Goode- 
 now V. Parkinson, 67-95. 
 
 241. The compromise, among the mem- 
 bers of the same family, of disputed claims 
 with reference to family property, has always 
 been regarded by the courts as constituting 
 a valid consideration for the contracts en- 
 tered into in effecting the settlement : Adams 
 V. Adams, 70 . 
 
 242. An agreement of compromise be- 
 tween the parties to an action is based upon 
 sufficient consideration and is binding : Tay- 
 lor V. Galland, 8 G. Gr., 17. 
 
 243. A contract by way of compromise 
 and settlement of a claim which at the time 
 appears valid, although it subsequently 
 turns out to be groundless, is supported upon 
 sufflcieut consideration: Smith v. Cedar 
 Rapids & M. R. R. Co., 48-289. 
 
 Vol. 1—30 
 
 244. An agreement to allow judgment to 
 go by default may be a valid consideration 
 for an agreement by the other party that 
 such judgment shall be satisfied out of cer- 
 tain specified property of the debtor : Mont- 
 gomery V. Gibhs, 40-653. 
 
 245. In a particular case, held, that a con- 
 tract entered into by way of compromise waa 
 sufficiently supported by a consideration: 
 Dewey v. Life, 60-361. 
 
 246. Under the facts of a particular case, 
 held, that there was sufficient matter in dis- 
 pute, and sufficient uncertainty as to the 
 result, to render a compromise valid: Mills 
 County V. Burlington & M. R. R. Co., 47-66. 
 
 247. Where there was an attachment, and 
 creditors were threatening to have it set 
 aside by proceedings in bankruptcy, held, 
 that there was sufficient doubt and uncer- 
 tainty in respect to the respective rights of 
 the parties to the transaction as to render an 
 agreement by one to waive proceedings a 
 sufficient consideration by the other to share 
 the attached property pro rata: Adams v. 
 Morton, 37-355. 
 
 248. The surrender of a claim of interest 
 in real property tending to create a cloud 
 upon the title such as to require the inter- 
 position of a court of equity to remove it, is 
 sufficient consideration for an agreement 
 based thereon : Davies v. Beadle, 37-890. 
 
 249. A compromise of a doubtful title, 
 when procured without fraud, is a sufficient 
 consideration to support a promise : Richard- 
 son V. Barrick, 16-407. 
 
 250. Where a party went into possession of 
 land without right thereto, and commenced 
 improvements, and thereafter a compromise 
 was made between him and the person 
 claiming to be the owner, by which it was 
 agreed that rent should be paid for the use 
 of the land, held, that such compromise con- 
 stituted a sufficient consideration for the 
 payment of rent regardless of whether the 
 person claiming to be the owner had title or 
 not : Bowdish v. Dubuque, 38-841. 
 
 251. Composition ivitli creditors: Where 
 it was understood that a composition was to 
 be entered into by nearly all the creditoi's, 
 whereby the secured notes of defendant for 
 fifty per cent, of the indebtedness were to be 
 accepted in full payment, held, that the fact 
 that defendant had, by secret agreement. 
 
3U6 
 
 CONTRACTS, VIII. 
 
 Consideration. 
 
 paid one of the composition creditors seventy- 
 five per cent, could not be taken advantage of 
 by plaintiff to defeat the composition after 
 having accepted payment of the composition 
 notes with knowledge of the fraudulent 
 agreement : Bower v. Metz, 54-394. 
 
 25-. Alterations or additions made by 
 one party in or to a contract at the request 
 of the other, and upon representation by the 
 other that if not made he would refuse to carry 
 out the original contract, and made without 
 any consideration, the person making them 
 not being in default as to the performance of 
 the original contract, are invalid for want of 
 consideration: McCarty v. Hampton Build- 
 ing Ass'n, 61-287. 
 
 253. Modifications in a contract not yet 
 executed on either part will be supported by 
 the consideration of the original contract: 
 Le Grand Quarry Co. v. Reichard, 40-161. 
 
 254. An agreement to pay the considera- 
 tion in advance instead of on the completion 
 of the contract as originally contemplated, 
 even where the other party has a lien for the 
 amount of the consideration, will support a 
 modification of the contract in other respects : 
 Baker v. Steamboat Milwaukee, 14-214. 
 
 255. Where the obligation of one party 
 under the contract as modified has been per- 
 formed, the other cannot object that such 
 modification is without consideration: Maa:- 
 well V. Graves, 59-613. 
 
 256. Extension of time: A contract ex- 
 tending the time of an indebtedness without 
 a new consideration is not binding, and does 
 not suspend the right of action upon the 
 original obligation : Price v. Price, 34r-404. 
 
 257. In the case of a unilateral contract 
 by which the obligor binds himself to pay 
 money on consideration that certain things 
 are performed by the obligee by a certain 
 time, an entry on the back of the written 
 agreement extending the time in which per- 
 formance may be made, amounts to a new 
 agreement supported by a good and valid 
 consideration: Burlington & M. R. R. Co. 
 V. Penney, 88-255. 
 
 258. Where an absolute deed was executed 
 by a wife to secure the debt of her husband 
 already due, and a separate defeasance was 
 executed to her providing that upon the pay- 
 ment of certain sums of principal and inter- 
 eat by her the lands should be reconveyed. 
 
 held, that this amounted to a binding exten- 
 sion of time, and was a suflScient considera- 
 tion for the conveyance by the wife : Lomax 
 V. Smyth, 50-223. 
 
 259. In a particular case, it being specially 
 found by the jury that a valid extension of 
 time was given to a party, held, that the 
 court could not disregard such finding on the 
 ground that there was no consideration, there 
 being an issue as to the consideration and 
 evidence showing that there was such con- 
 sideration : Wendling v. Taylor, 57-354. 
 
 260. Implied in written contract: A con- 
 sidei-ation is implied in a written contract 
 (Code, § 3113), and no consideration need be 
 expresse.d : Peddieord v. Whittam, 9-471. 
 
 261. A written contract implies a consid- 
 eration, and want or failure of consideration 
 must be averred and shown by way of de- 
 fense: Goodpaster V. Porter, 11-161. 
 
 262. Such contracts import a considera- 
 tion in the same manner that sealed instru- 
 ments formerly did : Jones v. Berryhill, 35- 
 289, 397. 
 
 263. So held as to a written guaranty: 
 Sabin v. Harris. 13-87. 
 
 264. A covenant in writing imports a con- 
 sideration: Arnold v. Kreutzer, 67-214. 
 
 265. It is not ground of demurrer to a pe- 
 tition on a written instrument, that no con- 
 sideration is alleged or appears on the face 
 thereof. Such objection must be set up as a 
 defense: hinder v. Lake, 6-164; Towsley v. 
 Olds, 6-526; Goodpaster v. Porter, 11-161; 
 Henderson v. Booth, 11-212; State v. Wright, 
 37-533. 
 
 266. Parol evidence: The consideration 
 need not appear upon the face of the con- 
 tract ; it may be proved by parol, or infeiTed 
 from the terms and obvious import of the 
 agreement : Attix v. Pelan, 5-336. 
 
 267. Pai-ol evidence is admissible to show 
 a consideration other than that expressed on 
 the face of the contract : Taylor v. Wight- 
 ■man, 51-411. 
 
 268. The consideration of a written con- 
 tract may be shown by parol, and if such 
 consideration is found in an unwritten 
 agreement it may be proved by oral testi- 
 mony : Simpson Centenary College v. Bryan, 
 50-393. 
 
 269. Want or failure of consider.ition 
 may be sliown : While a written contract im- 
 
CONTRACTS, VIII. 
 
 307 
 
 Consideration. 
 
 ports a consideration (Code, § 2113), it is 
 competent to aver and prove that tliere was 
 in fact no consideration; Briggs v. Downing 
 48-550 ; Byers v. Harris, 67-685. 
 
 270. Although a written contract imports 
 a consideration, it is competent to show a 
 failure of consideration to defeat the con- 
 tract, the burden of proof being upon the 
 defendant : University of Des Moines v. Liv- 
 ingston, 57-307. 
 
 271. The phrase ' ' value received " does not 
 necessarily import a consideration, and evi- 
 dence is competent to show that no consider- 
 ation has been in fact received: Osgood v. 
 Bringolf, 33-265. 
 
 272. Extrinsic evidence of a consideration 
 to a written contract adverse to that ex- 
 pressed upon the face thereof is incompe- 
 tent : Gelpcke v. Blake, 19-263. 
 
 273. A defendant relying on want of con- 
 sideration in a wi-itten contract must aver 
 and show not only that he did not receive 
 the consideration specified therein, but also 
 that he did not receive any other considera- 
 tion: Taylor V. Wightman, 51^11. 
 
 274. Contracts under seal: By statute 
 (Code, § 2114) the consideration of a con- 
 tract is inquirable into, and want of consid- 
 eration is a good defense though the instru- 
 ment be executed under seal in another 
 state, where the law presumes a considera- 
 tion: Williams v. Haines, 27-251. 
 
 275. Adequacy of consideration: Each 
 party may exercise his own discretion as to 
 the adequacy of the consideration, and if the 
 agreement be made honaflde, it matters not 
 how insignificant the benefit may be to the 
 promisor, or how slight the inconvenience or 
 damage appears to be to the promisee, pro- 
 vided it be susceptible of legal estimation. 
 If the inadequacy of consideration is so 
 gross as to create a presumption of fraud, the 
 contract founded thereon would not be en- 
 forced, but even then it is the fraud which is 
 thereby indicated, and not the inadequacy of 
 consideration, which invalidates the con- 
 tract : Blake v. Blake, 7-46. 
 
 276. Illegality: No action can be main- 
 tained on a contract, the consideration of 
 which is either wicked in itself or prohibited 
 by law : Marienthal v. Shafer, 6-328. 
 
 277. An agreement on the part of persons 
 interested in a will, in consideration of the 
 
 agreement of others to pay them the amount 
 they would become entitled to under the 
 will, and allow the will to be defeated and 
 set aside in a probate proceeding for the pur- 
 pose of depriving others, not parties to the 
 contract, of their rights under such will, is 
 illegal, and the parties carrying out the 
 agreement not to maintain the will cannot 
 afterward recover from those at whose in- 
 stance they acted, the amount to which they 
 would have been entitled under the will: 
 Gray v. McReynolds, 65-461. 
 
 2 78. Where defendant became indebted to 
 one B. for intoxicating liquors illegally sold, 
 and in consideration thereof agreed to pay 
 an indebtedness owing plaintiff by said B., 
 to which agi-eement plaintiff consented, re- 
 leasing B. and accepting defendant as his 
 debtor, held, that the illegality of the ti'ans- 
 action between defendant and B. could not 
 be set up as against the plaintiff, it not ap- 
 pearing that plaintiff had any information of 
 the nature of the transaction between de- 
 fendant and B. : Bower v. Webber, 69-286. 
 
 Further as to illegality of contracts, see 
 infra, IX 
 
 279. Compounding of felony: A contract, 
 the consideration of which is the compound- 
 ing of a felony, cannot be enforced : Peed v. 
 McKee, 42-689. 
 
 And see infra, §§ 354^5. 
 
 2S0. Failure of consideration: Where an 
 endowment note was given as alleged in con- 
 sideration of an agreement that the principal 
 of the fund raised should not be diminished, 
 held, that the diminution of tlie fund could, 
 not be set up as a failure of consideration in 
 an action on the note: Simpson Centenary 
 College v. Bryan, 50-293. 
 
 281. The maker of an endowment note to 
 a college, who is entitled to tuition therein 
 upon payment of the note, cannot defend 
 against the note by showing that the college 
 is in the charge of incompetent teachers, and 
 tuition therein would be of no value : Oska- 
 loosa College v., Hull, 25-155. 
 
 Further as to failure of consideration, see 
 Bills and Notes, S§ 85-87; Sales, §§ 13-16; 
 and Conveyances, gg 133, 134. 
 
 282. Partial failure: Where a note is 
 given under an entire contract for the pur- 
 chase of two parcels of real property, the 
 failure of title to one parcel will not conr 
 
308 
 
 CONTRACTS, IX, a, b. 
 
 Illegality. — Between belligerents. — In violation of law. 
 
 stilute a failure of consideration of the note, 
 and the title to the other parcel will consti- 
 tute a consideration sufficient to support it : 
 Wadsworth v. Nevin, 64-64. 
 
 283. An agreement by a county to trans- 
 fer to defendant a certain number of acres 
 of land therein secured at a certain considera- 
 tion, and further to sell and assign to defend- 
 ant all the swamp land claim and interest 
 of the county for a further agreed sum, upon 
 the additional consideration that the defend- 
 ant should save the county harmless fi-om 
 certain contracts theretofore made by it, held, 
 not to be a severable contract, so that a con- 
 veyance of the specified acres of land could 
 stand while the balance of the contract was 
 void for mistake: Montgomery County v. 
 American Emigrant Co., 47-91. 
 
 284. A note given in aid of a railway, 
 alleged to have been made upon representa- 
 tions that the road would be aided by a cer- 
 tain other railway, thereby securing valuable 
 connections, etc., held, to be valid, notwith- 
 standing the failure to secure such connec- 
 tions without fault of the company, such 
 matter being an inducement to and not a 
 consideration or condition of the note : Mer- 
 rill V. Gamble, 46-615. 
 
 28.5. But held, that it being agi-eed that 
 capital stock of the company to be aided 
 should be issued in consideration of such 
 note, and it appearing that the capital stock of 
 such company had been illegally increased 
 far beyond the amount the company was 
 authorized to issue, and that such illegal 
 stock was beyond the control of the corpora- 
 tion and could not be distinguished from 
 genuine and had become valueless, the maker 
 of the note was not liable : Ibid. 
 
 IX. Illegality. 
 
 a. Between 'belligerents. 
 
 286. Citizens of states in rebellion: Con- 
 tracts between citizens of countries at war 
 with each other are void: HiU v. Baker, 
 33-303. 
 
 287. And heldf that this rule was appli- 
 cable to contracts between citizens of a state 
 in rebellion and citizens of a loyal state: 
 Ibid. 
 
 b. In violation of law. 
 
 288. Revenue stamp: The fact that a con- 
 tract had not been stamped, as required by 
 the United States revenue laws, held not suf- 
 ficient to exclude it from admission as evi- 
 dence where it did not appear that there was 
 any fraudulent intent in the omission to 
 properly stamp the paper. (Overruling 
 Hugus V. Strickler, 19-413) : Mitchell v. Home 
 Ins. Co., 33-431. 
 
 289. An intentional omission to stamp an 
 instrument in conformity to the revenue 
 laws constitutes proof of an intent to evade 
 such laws within the meaning of the statute, 
 and the instrument is not receivable in evi- 
 dence : Byington v. Oaks, 33-488. 
 
 290. If an agreement is executed by both 
 parties thereto in duplicate, each party re- 
 taining one, it is binding upon the parties, 
 though only one of the duplicates is stamped : 
 Bondurant v. Crawford, 33-40. 
 
 As to failure to affix revenue stamp, see, 
 also,^ Bills and Notes, S§ 68-75. 
 
 291. Act prohibited by law: Any prom- 
 ise, contract, or undertaking, the perform- 
 ance of which would tend to promote, ad- 
 vance, or carry into effect any object or 
 purpose which is unlawful, is in itself void 
 and will not sustain an action. In this re- 
 spect the law gives no countenance to the old 
 distinction between malum in se and malum 
 prohibitum, and a contract having for its ob- 
 ject the doing of an act repugnant to the 
 general policy of the common law, or contrary 
 to the provisions of a statute, is void and not 
 to be enforced: Reynolds v. Nichols, 13-898. 
 
 292. Prohibited by statute: Therefore, 
 where a statute expressly prohibited the issu- 
 ing of paper to circulate as money, held, that 
 a trust deed to secure a loan of post notes, 
 which were within the statutory prohibition, 
 could not be enforced : Ibid. 
 
 293. Act to which penalty is affixed: 
 The fact that a penalty is affixed by statute 
 to the doing of an act implies a prohibition, 
 though there are no prohibitory words in the 
 statute ; and a contract to do the prohibited 
 act will be illegal and void, unless it appears 
 that it was not intended that the statute 
 should imply a prohibition: Pangbom v. 
 Westlake, 36-546. 
 
 294. Under a statute maJdng it a criminal 
 
CONTRACTS, IX, b. 
 
 300 
 
 In violation of law. 
 
 offense, punishable by fine, to run a thresh- 
 ing machine without having the tumbling- 
 rods boxed, and also subjecting to the same 
 fine any person knowingly permitting his 
 grain to be threshed by such machine, held, 
 that a party who had performed services in 
 threshing under a contract for such work to 
 be done with a machine not having its rods 
 boxed, and which was performed by a ma- 
 chine in that condition, could not recover 
 compensation for services performed : Dillon 
 V. Allen, 46-299. 
 
 295. Under the statutory provision (Code, 
 § 3895) making it a crime in the mortgagor 
 of personal property to wilfully destroy, 
 conceal, sell, or in any manner dispose of the 
 property covered by the mortgage without 
 the consent of the holder of such mortgage, 
 held, that a subsequent mortgage given upon 
 the property by the mortgagor was not void : 
 Tootle V. Taylor, 64-629. 
 
 296. It being by statute required that a 
 plat of a subdivision of land laid out as a city 
 or town or an addition thereto shall be re- 
 corded before any conveyances are made 
 thereunder, and a penalty being provided for 
 the failure of the owner to comply with such 
 requirements, held, that as the statute im- 
 posed no penalty upon the grantee under 
 such circumstances, the conveyance was not 
 void, and might be enforced : Watrous v. 
 Blair, 32-58. 
 
 297. And the vendor may, in such case, 
 enforce payment of the consideration : Pang- 
 bom V. Westlake, 36-546. 
 
 298. Where an act is absolutely prohibited 
 by statute or is contrary to public policy, 
 contracts in furtherance of such act are null 
 and void ; but where the statute fixes a mere 
 penalty, contracts in relation to the matters 
 which subject the maker to the penalty are 
 not on that account invalidated. If not in- 
 trinsically wrong the individual is permitted 
 to perform the act upon payment of the pen- 
 alty: milv. Smith, Mor., 70. 
 
 299. A snle of diseased sheep in violation 
 of statutory provisions is void, so that the 
 purchase price cannot be recovered, even 
 though the buyer knew the sheep were dis- 
 eased, the statute being for'the protection of 
 the public, and not merely for the protec- 
 tion of the purchaser: Caldwell v. Bridal, 
 48-15. 
 
 300. Violation of Sunday laws: An ex- 
 press or implied contract made on Sunday for 
 the sale of property, where the parties are not 
 embraced within the exceptions of the stat- 
 ute prohibiting the doing of business upon 
 Sunday (Code, sj 4072), will not be enforced 
 by the courts : Pike v. King, 16-49. 
 
 801. Vendee of property sold on Sunday 
 may retain it without paying the price agreed 
 upon. The law will leave the parties where 
 it finds them : Ibid. ; Kinney v. McDermot, 
 55-674. 
 
 302. If the contract is to pay for property 
 bought and sold on Sunday, the plaintiff can- 
 not recover the value aside from the con- 
 tract: Pikev. King, 16-49. 
 
 303. A vendee obtaining possession of prop- 
 erty under a Sunday contract may maintain 
 replevin for such property when subsequently 
 taken from him by the vendor by force: 
 Kinney v. McDermot, 55-674. 
 
 304. The execution of a note on Sunday is 
 within the prohibition of the statute impos- 
 ing a penalty upon any one engaged " in any 
 labor " on that day, and such note is, as against 
 the maker, void in the hands of the payee or 
 his assignees. And in this respect the laws 
 of another state where the note was exe- 
 cuted will be presumed to be the same as 
 those of this state: Sayrev. Wheeler, 51-112; 
 S. C, 32-559. 
 
 305. The burden of proving that a contract 
 made on Sunday is within one of the pro- 
 visions of the statute exempting works of 
 necessity and charity, and persons conscien- 
 tiously observing the seventh day, from its 
 operation, is upon the pai;ty claiming under 
 the exemption, which is in the nature of a 
 proviso: Ibid. 
 
 306. A note signed on Sunday, but not, in 
 fact, delivered until Monday, is not void: 
 Bell V. Mahin, 69-408. 
 
 307. The defense that a contract is void be- 
 cause made on Sunday must be specially 
 pleaded : Biech v. Bolch, 68-526. 
 
 308. It does not follow that where the con- 
 tract only is unlawful, the plaintiff cannot 
 recover upon the original consideration in a 
 proper case: Sayre v. Wheeler, 31-112. 
 
 309. An action cannot be maintained to re- 
 cover damages for fraudulent representations 
 made in connection with a Sunday contract : 
 Qunderson v. Richardson, 56-56. 
 
310 
 
 CONTRACTS, IX, b. 
 
 In violation of law. 
 
 310. Though the contract be void as made 
 on Sunday, the parties may make a valid con- 
 tract with reference to the same subject- 
 matter on a subsequent week-day, and it 
 "would seem that a subsequent ratification of 
 "the Sunday contract would be binding : Har- 
 rison V. Colton, 31-16. 
 
 811. To amount to the ratification of aoon- 
 'tract of lease executed on Sunday something 
 more than mere occupation of the premises 
 'must be shown. Such occupancy might ren- 
 der the tenant liable under an implied prom- 
 ise for a quantum meruit, but not for the 
 rent stipulated. To constitute a ratification 
 there must be some new promise to per- 
 Iprmi tlie terms of the lease, or something 
 Equivalent thereto: Mcintosh v. Lee, 57- 
 356. 
 
 312. A party to a Sunday contract cannot 
 set up the fact of its execution on Sunday to 
 defeat it in the hands of one who is a good 
 faith assignee thereof for value and without 
 notice of the illegality : Johns v. Bailey, 45- 
 '341. 
 
 313. A negotiable note made on Sunday, 
 'but dated on another day, and having i^oth- 
 ing on its face to indicate its invalidity, is not 
 void in the hands of a bona fide holder ac- 
 quiring it before maturity without notice: 
 Clinton Nat. Bank v. Graves, 48-228. 
 
 314. The transferee, after maturity, with- 
 out knowledge of- the fact that the note bear- 
 ing date on a secular day was actually exe- 
 cuted on Sunday, may recover thereon. The 
 defense to the note is not an equity which 
 
 ■may be set up against one who purchases 
 after maturity: Leightman v. Kadetska, 58- 
 676. 
 
 315. The admission of a debt such as will 
 take it out of the bar of the statute of limita- 
 tions is not void because made on Sunday : 
 Ayres V. Bane, 39-518. 
 
 316. The fact that at the time of receiving 
 an injury for which another would be liable, 
 the person injured is engaged in business in 
 violation of the Sunday law, will not defeat 
 his recovery: Schmid v. Humphrey, 48- 
 652. 
 
 317. Nor will the fact that a railway train 
 is operated in violation of the Sunday law 
 render the railway company liable for dam- 
 ages accidentally occurring from the opera- 
 tion of such train without fault or negligence 
 
 on the part of the company : Tingle v. Chi- 
 cago, B. & Q. R. Co., 60-333. 
 
 As to lotteries, gambling contracts and 
 compounding of felonies, see infra, g§ 332- 
 355. 
 
 318. Contracts made in another state in 
 Tiolatioii of the laws of this state: To give 
 effect to contracts made outside of the state 
 is an act of comity due from the courts df 
 the state in which they are sought to be en- 
 forced to the state in which they are made, 
 and the rule that a contract, valid where 
 made, may be enforced in another state, 
 although it w; uld not be valid if made in 
 such state, is subject to the following excep- 
 tions : (1) That neither the state nor its citi- 
 zens shall suffer any injury or inconvenience 
 by giving legal effect to the contract which 
 should not in Itself, nor in the means used to 
 give it effect, work injury to tlie state where 
 it is intended to be enforced. 1 2) That the 
 consideration of the contract be not immoral, 
 and the giving effect to it will not have a 
 bad tendency or exhibit to the citizens of the 
 state an example pernicious and detestable. 
 (3) The contract must not be opposed to the 
 policy and institutions of the state where it 
 is sought to be enforced: Davis v. Bronson, 
 6-410. 
 
 319. Contract in violation of liquor 
 laws: Therefore, held, that under the state 
 statute providing that no action should be 
 maintained in any court of the state for the 
 value of intoxicating liquors sold in another 
 state or country with intent to enable any 
 person to violate the law prohibiting the sale 
 of such liquors in this state, a contract for 
 the sale of liquors made in another state, with 
 the intent to enable the purchaser to sell 
 them in this state in violation .of such law, 
 could not be enforced in the courts of this 
 state: Ibid. 
 
 320. In case liquors are sold in another 
 state for a resale in this state, mere knowl- 
 edge that the resale in this state would be in 
 violation of law would not necessarily vitiate 
 or avoid the contract, but it would be a fact 
 from which the jury might infer the exist- 
 ence of an intent to enable the purchaser 
 to violate the law: Tegler v. Shipman, 33- 
 194. 
 
 See further. Intoxicating Liquoes, VIII. 
 Illegal sales, in general, see Sales, §§ 18,19. 
 
CONTRACTS, IX, c. 
 
 311 
 
 Against public policy. 
 
 c. Against public polioy. 
 
 321. Disiuissnl of proceeding to establish 
 highway: A proceeding to establish -a, pub- 
 lic highway being in its nature public and 
 for the benefit of the whole public, a con- 
 tract by the partj' who has commenced such 
 proceeding, for its abandonment, is contrary 
 to public policy and void : Jacobs v. Tobia- 
 son, 65-245, 
 
 3".'2. Offleial fees: An agreement by a 
 sheriff to accept a fixed sum in lieu of legal 
 fees for services to be performed will be 
 null and void as against public policy and 
 against the provisions of statute, whether 
 tlie sum to be paid be greater or less than the 
 legal fees : Oilman v. Des Moines Valley R. 
 Co., 40-200. 
 
 ii2'i. Omission of official duty: A bond of 
 indemnity given to an officer to secure him 
 against liability for failure to perform his 
 official duty is illegal and cannot be enforced 
 by him: Cole v. Parker^ 7-167. 
 
 324. Champevty and maintenance: While 
 we have no statute prescribing the ofifenses 
 of maintenance and champerty, and provid- 
 ing punishment therefor, and a contract can- 
 not be declared void and unlawful on that 
 ground, yet a contract of that nature in con- 
 travention of public policy, as tending to pre- 
 vent or interfere with the administration of 
 justice, will be held void on that ground: 
 Adt/e V. ilanna, 47-264. 
 
 325. Therefore, held, that a bond given by 
 an attorney to his client in which it was 
 agreed that for a compensation the attorney 
 should prosecute the case of his client on ap- 
 peal, and should save his client harmless 
 fi-om any judgment that might be rendered 
 against him in such case, was void : Ilnd. 
 
 32i>. In the absence of statutory provisions, 
 a contract of a champertous nature will be 
 declared void as against public policy : Board- 
 man V. Thompson, 25-487 : Hyatt v. Burling- 
 ton, C. R. & N. R. Co., 68-662. 
 
 327. There is no necessity in this country 
 for enforcing the common law as to cham- 
 perty and maintenance. The causes which 
 gave rise to the law do not exist here, and as 
 the reason for the la w has ceased , the law itself 
 ceases: Wright v. Meek, 3 G. Gr., 472. 
 
 32 s. Champerty cannot be predicated upon 
 the assignment of a note or account and an 
 
 action thereon, although the assignee gives, as 
 the only consideration therefor, his obligar 
 tion to pay the net proceeds of the action to 
 the assignor : Knadler v. Sharp, 36-232. 
 
 329. An agreement by one party, in con- 
 sideration of release from a note and the 
 payment of a sum of money, to foreclose a 
 mortgage held by him and procure the con- 
 veyance to another of the property sold at 
 the foreclosure sale, held not champertous: 
 Cooley V. Osborne, 50-526. 
 
 330. The fact that an action is being prose- 
 cuted by attorneys under a champertous 
 contract cannot be set up as a defense therein : 
 Allison V. Chicago & N. W. R. Co., 42-274; 
 Small V. Chicago, R. I. & P. R. Co., 55-583. 
 
 331. The fact that a contract by which a 
 cause of action is assigned is champertous 
 can be pleaded only in an action between 
 the parties to such contract, and if not 
 pleaded therein, the contract can be enforced 
 as valid between them. A stranger whose 
 interests or rights are not affected by the 
 contract cannot set up champerty to invali- 
 date it. The defense appertains to the con- 
 tract itself, and can only be pleaded in an 
 action between the parties to it : Vimont v. 
 Chicago & N. W. R. Co., 69-296. 
 
 And further as to champerty, see Attob- 
 
 NEYS, §§ 94-102. 
 
 332. LotteiT^: A contract contemplating 
 the disposal of property by chance is against 
 public policy and cannot be enforced : Ouen- 
 ther V. Dewein, 11-133. 
 
 333. Wager; election bets: A wager con- 
 tract based upon the result of an election is 
 void, as against public policy: David v. Ran- 
 som, 1 G. Gr., 883. 
 
 334. Where, in pursuance of a contract 
 previously made between the parties to a 
 wager, plaintiff delivered to the successful 
 party an article and charged it to the other 
 party to the wager, held, that he could not 
 recover from the person so charged the value 
 of the article furnished : Ibid. 
 
 335. But held, that a request by the.party 
 charged, and subsequent to the determina/- 
 tion of the wager, to deliver the article to 
 the successful party, would render him liable 
 if delivery was made in pursuance of such 
 request: Ibid. 
 
 336. Kecovery of money paid over on 
 wager : Money lost on a wager and paid over 
 
Sl-2 
 
 CONTEACTS, IX, o. 
 
 Against public policy. 
 
 cannot be recovered back : Thrift v. Redman, 
 13-25. 
 
 33 7. EecoTery from stakeholder : A party 
 depositing money or otber property witb a 
 stakeholder as a wager may i-ecover it back 
 before it is paid over to the winner : Shannon 
 V. Baumer, 10-310. 
 
 338. An action may be maintained against 
 a stalteholder who has paid over to the win- 
 ning party money placed in his hands as a 
 wager after he has been notified by the loser 
 not to do so : Adkins v. Flemming, 29-123. 
 
 339. A demand upon the stakeholder by 
 one of the pai'ties to the wager for the entire 
 amount in his hands, on the ground that he 
 is succe.ssf ul in the wager, is not a revocation 
 of the wager so as to entitle him to recover 
 from such stakeholder the amount deposited 
 by him and afterwards paid over in pursu- 
 ance of the result of the wager to the oppo- 
 site party : Okerson v. Crittenden, 63-297. 
 
 340. Although one who has deposited 
 money with a stakeholder on a wager cannot 
 recover the same back after it is paid over to 
 the winner, yet where a promissory note for 
 an amount greater than the wager was de- 
 posited with a stakeholder and by him 
 turned over to the winner, who appropriated 
 it to his own use, held, that the original 
 owner might recover from such winner the 
 excess of the value of the note over the 
 amount of the wager : Shaw v. Gardner, 30- 
 111. 
 
 341. Action upon wagering contract: 
 Action cannot be maintained upon a note 
 showing upon its face that it was given in a 
 betting transaction : Sipe v. Finarty, 6-394. 
 
 342. And even if the note is given upon an 
 apparent consideration, the agreement be- 
 tween the parties may be such as to make it 
 clearly a wagering contract: Craig v. An- 
 drews, 7-17. 
 
 343. The statute (Code, § 4029) declaring 
 all notes, contracts, etc., given upon a gam- 
 bling or wager consideration void, renders 
 them void even in the hands of an innocent 
 purchaser before maturity: Ibid,; Traders' 
 Bank v. Alsop, 64-97. 
 
 344. Where one, in behalf of himself and 
 others, deposited a sum as a wager, held, 
 that in an action to recover such sum from 
 the stakeholder, he could only recover the 
 amount actually belonging to him, the con- 
 
 tract being absolutely void and plaintiff hav- 
 ing therefore no authority to sue for the 
 others thereunder : Toney v. Snyder, 50-73, 
 
 345. Options: To invalidate a contract on 
 the ground of the illegality of the trans- 
 action, as being a gambling or option con- 
 tract, it must be shown by a preponderance 
 of evidence that on the part of both parties 
 the transaction was with the knowledge and 
 purpose that no actual delivery of the prop- 
 erty which was the subject of the sale 
 should be made, or, in other words, that both 
 participated • in the intention which renders 
 the contract void. If one of the parties acts 
 in good faith, with the intention and expec- 
 tation of delivering or receiving the prop- 
 erty which is the subject of the sale, the 
 transaction as to him wUl be valid, and will 
 be a sufficient consideration for a conti-act 
 in his hands based thereon : Murry v. Ooliel- 
 tree, 59-435. 
 
 346. Certain instmctions to the effect that 
 instruments purporting to convey the title 
 to grain were void because they were issued 
 to pay losses which might be suffered in 
 the purchase of commodities, wherein it 
 was not the purpose or intention of either 
 of the parties that the purchase or sale should 
 be consummated by the delivery or receipt 
 of the article purchased or sold, but on the 
 contrary it was the purpose of all the parties 
 that the same should be settled by the pay- 
 ment of the difference between the pur- 
 chase or selling price and the market price 
 at the time of settlement, held correct: 
 Lowe V. Young, 59-364. 
 
 347. The option contracts that are void are 
 such as do not contemplate the actual deliv- 
 ery of the commodity purchased, but rather 
 contemplate that the subject of the contract 
 is not intended to be delivered: Gregory v. 
 Wattowa, 58-711. 
 
 348. When the parties to an executory 
 contract for the sale of property intend that 
 there shall be no delivery thereof, but that 
 the transaction" shall be settled by the pay- 
 ment of the difference between the contract 
 price and the market price of the commodity 
 at the time fixed, the contract is void : Mrst 
 Nat. Bank v. Oskaloosa Packing Co., 66-41. 
 
 349. The party seeking to avoid the con- 
 tract may testify as to the intention vrith 
 which the contract was made, whether it was 
 
CONTRACTS, IX, c. 
 
 313 
 
 Against public policy. 
 
 tliat the goods contracted for should be deliv- 
 ered or not: Ibid. 
 
 330. A circumstance tending to indicate 
 that the transaction is an option contract is 
 that the agent thro ugh whom the transaction 
 is made, and who attempts to enforce the 
 contract, did not disclose to the other party 
 the names of the persons with whom, in his 
 behalf, the contract was made : Ibid. 
 
 351. Another circumstance tending to 
 show that delivery of the property to the 
 purchaser was not intended, would be that 
 the amount of the pretended purchase appears 
 to be largely in excess of the means of the 
 purchaser: Ibid. 
 
 352. If the agent through whom the pur- 
 chase is made knows that the transaction is 
 an option contract, he cannot recover money 
 advanced by him to one of the parties for the 
 purpose of carrying on the transaction : Ibid. 
 
 353. While contracts for the sale and de- 
 livery of grain in the future, which are vir- 
 tually bets in relation to the future price of 
 grain, are of a purely gambling and criminal 
 character, and, where their true character is 
 known, the courts should condemn them and 
 hold them void, yet, in the movements of the 
 grain of the country, contracts for future de- 
 livery are, to some extent, a necessity, and 
 they are as legitimate as any other, and that, 
 too, though the parties may contemplate a 
 possibility of settlement by the payment of 
 dififerences. The real intention of the parties 
 must determine the character of the transac- 
 tion, and in arriving at the intention the 
 court must be governed by the evidence and 
 not by conjectures based upon its knowledge 
 of other contracts : Tomblin v. Callen, 69-329. 
 
 354. Componiidiiigfelony: The defendant 
 in a criminal prosecution, being convicted, 
 executed certain notes to the prosecuting 
 witness and her attorneys, which were to be 
 delivered in the ei^ent that prosecutrix should 
 sign an application for defendant's pardon, 
 or in case that on appeal and reversal of the 
 case and a new trial, defendant should be 
 acquitted or discharged. And it was also 
 agreed that a civil action by the prosecutrix 
 for damages was to be discontinued. Held, 
 that an agreement for the delivery of the 
 note was void as against public policy, as 
 tending to stifle the prosecution of crime and 
 defeat justice : Haines v. Leims, 54r-301. 
 
 355. Evidence in a particular case held 
 not sufficient to show that a contract was 
 entered into for the purpose of compromis- 
 ing a felony : Malli v. Willett, 57-705. 
 
 And further, as to compounding felony, 
 see supra, § 379 ; and Criminal Law, II, 5, b. 
 
 356. Restraint of trade; saleof b.iisiiiess; 
 good-will: While contracts in general re- 
 straint of trade are void, those which are in 
 restraint of trade as to particular persons or 
 places, or for a limited time, are valid if 
 founded upon proper consideration : Hedge v. 
 Lowe, 47-137. ' 
 
 357. Therefore, held, that an agreement 
 made by a person engaged in the business of 
 selling agricultural implements, in connection 
 with the sale of his business, not to engage 
 in the implement business in the same place, 
 or that vicinity, within five years from that 
 time, either as principal or agent, without 
 the consent of the other party, was valid: 
 Ibid. 
 
 358. Such a contract is assignable in con- 
 nection with the sale of the business by the 
 party with whom it is made to another : Ibid. 
 
 359. A covenant binding a party not to en- 
 gage in a particular trade within two miles 
 of the premises occupied by him at the time 
 of the contract, is not illegal as in undue re- 
 straint of trade : Arnold v. Kreutzer, 67-314. 
 
 360. The good-will of a trade or business 
 may be the subject of bargain and sale when 
 connected with any particular stock in ti'ade, 
 or with some valuable secret of trade, or 
 with a well-established stand for business. 
 A court of equity wiU decree specific per- 
 formance of a contract of sale of the good- 
 will of a business or trade, or the law will give 
 damages for the breach of such a contract: 
 Moorehead v. Hyde, 38-382. 
 
 361. An agreement in consideration of a 
 sale of land to another to discontinue keep- 
 ing a tavern upon an adjoining tract of land 
 is not illegal as in improper restraint of 
 tfade, the restriction being within a reason- 
 able limit: Heichew v. Hamilton, 3 G. Gr., 
 596. 
 
 362. A contract not to engage in the prac- 
 tice of law at a particular place is not against 
 public policy : Smalley v. Greene, 52-341. 
 
 363. An agreement in a particular case, 
 held to amount to the sale of a medical 
 practice, and an agreement not to carry on 
 
314: 
 
 CONTRACTS, IX, o, d. 
 
 Against public policy.— Effect of illegality. 
 
 the same business in the same place ; but held, 
 that such agi-eeinent would not prevent de- 
 fendant, when located in another place, from 
 practicing as a physician in the place where 
 "he had formerly been located : Haldeman v. 
 ■Simonton, 55-144. 
 
 3C4. A contract for the sale of business of 
 a physician, in which it was stipulated that 
 the seller . reserved the right to practice in 
 special cases, construed: Powers v. Strout, 
 -67-341. 
 
 As to breach of contract not to caiTy on 
 business, see infra, g§ 569-573. 
 
 365. Monopolies: The power of courts to 
 declare a contract void as being in contraven- 
 tion of sound public policy, like the power 
 to declare a statute unconstitutional, should 
 be exercised only in cases free from doubt. 
 In a particular case, held, that a contract for 
 the erection of an elevator, and the handling 
 of all through gi-ain at a terminal point, 
 where it was necessary to handle it, was not 
 a monopoly in such sense as to be void: Rich- 
 mond V. Dubuque & S. C. R. Co., 26-191. 
 
 3(56. Through transportation: A contract 
 by a railway company with the owner of a 
 warehouse by which such company agreed 
 to deliver to the warehouseman all tlirough 
 grain shipped over its line, and pay a cer- 
 tain amount per bushel for the handling of 
 the same, held not void as in contraven- 
 tion of acts of congress intended to secure 
 transportation on through lines without 
 change of cars: Richmond v. Dubuque & S. 
 C. R. Co., 33-432, 498. 
 
 367. Construction of railway upon high- 
 way: An agreement to do that which is ex- 
 pressly authorized by the law cannot be 
 considered to be against public policy. So 
 held as to a contract with a railway com- 
 pany to erect its line along or near a public 
 highway instead of through lands of the con- 
 tracting parties: Chicago. R. I. & P. R. Co. 
 V. Spafford, 41-393. 
 
 388. Location of railway depot: Defend- 
 ant, in consideration of the conveyance of 
 certain lots by plaintiff and others, agreed to 
 construct and maintain on such lots the only 
 depot for its road in a city named, but in vio- 
 lation of such contract erected and main- 
 tained a second depot in another part of said 
 city. In an action by plaintiff to recover 
 the value of the property conveyed, held. 
 
 that the contract was void as against public 
 policy, and plaintiff being in pari delicto 
 could not recover: Williamson v. Chicago, 
 R. I. <Sb P. R. Co., 53-126. 
 
 369. To recover swamp lands: Where the 
 defendant county entered into a contract 
 with plaintiff, by which the latter was to en- 
 deavor to secure certain swamp lands, or in- 
 demnity therefor, to the county from the 
 general government, and receive one-half 
 the money so secured as compensation for 
 his services, and plaintiff did secure certain 
 sums for the county through congressional 
 legislation, it not appearing that the use of 
 any improper means was contemplated in the 
 contract, held, that it was not void as against 
 public policy : Denisoti v. Crawford County, 
 48-311. 
 
 370. Contract for materials furnished 
 for improper purpose: To render a contract 
 for a sale of lumber for the erection of a 
 building void, on the ground that the build- 
 ing was to be used for a gambling house, it 
 should appear that the seller knew at the 
 time of the sale that the lumber was to be 
 put to an unlawful purpose, and that he sold 
 it for the purpose of having it used for that 
 purpose: Dorseyv. Langworthy, 3G. Gr., 341. 
 
 d. J^eot of illegality. 
 
 371. Method of performance: Where the 
 illegality is not in the thing to be done under 
 the contract, but in the manner of perform- 
 ing it, it is not to be presumed that the par- 
 ties intended a violation of the law, and the 
 fact that it was performed in an illegal man- 
 ner, when it might have been performed 
 otherwise, will not defeat the right of recov- 
 ery. (By Adams, J., in dissenting opinion): 
 Dillon V. Allen, 46-399. 
 
 3 72. Partial illef!;ality : Where one makes 
 a contract in part illegal, he will be held to 
 the performance of the legal part if the con- 
 tract is capable of separation, but if not, 
 then the entire contract is void : Casady v. 
 Woodbury County, 13-113. 
 
 373. Estoppel: A contract which is void 
 as against public policy cannot be made to 
 operate as an estoppel. It has no validity 
 whatever : Langan v. Sankey, 55-53. 
 
 371. Parties in pari delicto: The law wiU 
 leave all persons who share in the guilt of an 
 
CONTRACTS, X. 
 
 315 
 
 Construction. 
 
 illegal or immoral transaction where it finds 
 them, and will not lend its aid to enforce the 
 contract while executory, nor interfere to 
 rescind it and secure the recovery of the con- 
 sideration when executed : Harvey v. Tama 
 County, 53-338 ; Williamson v. Chicago, R. 
 I. & P. R. Co., 53-126. 
 
 3 75. That one of the parties to the contract 
 will be benefited by refusing to enforce it, on 
 the ground that it is illegal and the parties 
 are in pari delicto, will not prevent the courts 
 from adhering to the rule: Dillon v. Allen, 
 46-399 ; Caldwell v. Bridal, 48-15. 
 
 376. The doctrine of jpar delictum is not 
 modified by the degree of guilt of the viola- 
 tors of the law, or the tiu-pitude of the offense, 
 nor does it have respect to the punishment 
 inflicted: Steever v. Illinois Cent. R. Co., 
 63-871. 
 
 X. CoNSTEUCTION. 
 
 377. The writing to govern : The written 
 agreement, unless ambiguous, is to be taken 
 as the fair expression of the agi-eement of the 
 parties: Trustees of Oskaloosa College v. 
 Stafford, 14-153. 
 
 As to parol evidence to vary the writing, 
 see Evidence, II, 4. 
 
 378. To be construed by the court: Where 
 a contract is in writing it is the province and 
 duty of the court to construe it and inform 
 the jury what the rights and duties of the 
 parties in the premises are : Rohrabacher v. 
 Ware, 37-85. 
 
 And further on this point, see Instruc- 
 tions, §§ 198-308. 
 
 379. All the parts construed together: 
 An agreement is to be so construed, if possible, 
 as to give effect to all its parts : Greene v. 
 Day, 34-328 ; Sowers v. Page County, 83-530. 
 
 380. Surplusage: The doctrine of surplus- 
 age has no application to contracts. Words 
 in a contract, the meaning of which is not 
 inconsistent with words preceding or fol- 
 lowing, cannot be disregarded: Decorah v. 
 Kesselmeier, 45-166. 
 
 381. Inconsistent provisions: Sometimes 
 in order to construe a contAct in accordance 
 with the intention of the parties, it is neces- 
 sary to disregard words which evidently con- 
 tradict the spirit of the agreement: Davis 
 V. Fish, 3 G. Gr., 447. 
 
 383. A contract containing conditions con- 
 strued, and held that it was not to be taken 
 in a sense which would enable one of the 
 parties to avoid all liability by neglecting to 
 do an act therein contemplated: Rush v. 
 Carpenter, 54-183. 
 
 383. CopulatiTe words: Where a bond 
 provided a penalty for the sale by defendant 
 of liquors " to any intoxicated, card playing, 
 whatsoever person or habitual drunkard," 
 held, that the rules of the language required 
 the supplying of the copulative " and " be- 
 tween "intoxicated" and " card playing :'" 
 Decorah v. Kesselmeier, 45-166. 
 
 384. General clause: General language 
 must be held to relate to the rights and in- 
 terests of the same nature and description 
 with those which have already been men- 
 tioned : Mahaffy v. Mahaffy, 63-55. 
 
 385. How intent to be .iscertained: The 
 whole contract must be considered in deter- 
 mining the meaning of any of its parts. The 
 first point is to ascertain what the parts mean, 
 and then to put such expression on the con- 
 tract as to bring it as near their actual mean- 
 ing as the words the parties saw fit to employ, 
 when properly construed, and the rules of 
 law, will permit. In arriving at this mean- 
 ing the sufcject-matter of the contract and 
 the situation of the parties and of the prop- 
 erty must be considered: Jacobs v. Jacobs, 
 42-600. 
 
 386. Parts construed together: Under 
 the rule that all the parts of a contract will 
 be construed in such way as to give force and 
 validity to all of them and to all the language 
 used, if possible, held, that a provision in a 
 lease that "the following rents be paid, to wit : 
 Fifty dollars to be paid in money and fif- 
 teen dollars in labor," was only changed as 
 to the money payment by a supplemental 
 agreement that "the provision that does pro- 
 vide to be paid in money is to be paid in 
 grain," etc. : Emerick v. Clemens, 26-332. 
 
 387. In construing a contract executed 
 contemporaneously with a note and the in- 
 dorsement thereon, and a mortgage given to 
 secure the same, held, that they should all be 
 taken together ; Elmore v. Higgins, 20-250. 
 
 388. A contract by which an elevator was 
 erected to handle grain for a railway com- 
 pany, construed, taking its terms in their 
 most natural significance as applied to the 
 
316 
 
 CONTRACTS, X. 
 
 Construction. 
 
 Bubject-matter, and considering as a whole, 
 two agreements, one of wliich was subse- 
 quent and supplementary to the other, and 
 evidently calculated to supply a deficiency 
 in the prior one : Richmond v. Dubuque & S. 
 C. R. Co., 26-191. 
 
 389. To be construed most strongly 
 against the party contracting: Where the 
 language of a writing is ambiguous it should 
 be taken most strongly against the con- 
 tractor, and especially is this true when a 
 construction of which it is fairly susceptible 
 has been placed upon it, and third parties 
 have been induced to act in the belief that 
 the construction is the correct one : Hopwood 
 V. Corbin, 63-218. 
 
 390. The language of an agreement drawn 
 by an attorney, between himself and client, is, 
 in case of doubtful meaning, to be given that 
 construction which is least favorable to the 
 attorney : Schlicht v. Stivers, 61-746. 
 
 391. Sense in which nnderstood by op- 
 posite party: Under statutory provision 
 (Code, § 3653), when the terms of an agree- 
 ment have been intended in a different sense 
 by the parties to it, that sense is to prevail 
 against either party in which he had reason 
 to suppose the other understood it : Snow v. 
 Flannery, 10-318; Stout v. City F. Ins. Co., 
 13-371, 380; Wilkinson v. Connecticut Mut. 
 L. Ins. Co., 30-119, 137. 
 
 392. This statutory provision only ap- 
 plies to instruments which arise out of 
 and are the expression of the agreement of 
 two minds: Pierson v. Armstrong, 1-383, 
 387. 
 
 393. If the language used by and known 
 to the parties to the contract is ambiguous or 
 fairly admits of more than one construction, 
 that meaning is to be given it in which it is 
 understood by the other party, whether the 
 party so acting has reason to believe it was 
 BO understood by the other party or not: 
 Minnesota Linseed Oil Co. v. Montague, 
 65-67. 
 
 394. Construction by act of parties: 
 Where there is doubt about the construction 
 of a contract, a previous construction placed 
 upon it by tbo parties themselves may be 
 considered : McDaniels v. Whitney, 38-60. 
 
 395. But if the acts of the parties are as 
 consistent with one construction as another, 
 such acts are not to be given any controlling 
 
 weight : Le Grand Quarry Co. v. Reiclmrd, 
 40-161. 
 
 396. The fact that under a contract to 
 furnish water to a city by which a certain 
 rate of compensation was provided for a 
 specified period, and reduced rates for subse- 
 quent periods, the city paid the higher rate 
 for a greater length of time than required by 
 the proper construction of the contract, held, 
 not to bind the city to an improper construc- 
 tion of the contract which was insisted on by 
 the oijposite party, and in accordance with 
 which the payment by the city at the higher 
 rate was required : Davenport Water Co. v. 
 Davenport, 64-55. 
 
 397. Understanding of the parties: Where 
 in a contract of sale of a stock of goods it was 
 agreed that the price should be the wholesale 
 price less ten per cent., and in computing the 
 amount five per cent, was added to the actual 
 cost price for carriage, but it appeared that 
 by the custom of merchants the term whole- 
 sale price meant the actual cost without car- 
 riage, held, that the real meaning of the 
 terms used and not their supposed meaning 
 must prevail: Spencer v. Millisack, 53-31. 
 
 398. Whei-e the question is as to whether 
 certain acts constituted delivery of property 
 under a contract, it is not material what the 
 party's opinion of the effect of his act was 
 at the time, or the intention with which it 
 was done : Smyth v. Ward's Ex'rs, 46-339. 
 
 399. The understanding or intention of a 
 party making a contract does not constitute 
 the hmit of his liabiUty thereunder : 'White 
 V. Van Horn, 19-189. 
 
 400. The court will not always construe a 
 contract to mean what the parties to it 
 rueant, but will give to it that construction 
 which will bring it as near to the actual 
 meaning of the parties as the words they 
 have seen fit to employ, when properly con- 
 strued, and the rules of law, will permit; 
 Field V. Schricher, 14-119. 
 
 401. Understanding of witness as to 
 meaning' of terms: The testimony of a wit- 
 ness as to his understanding of the meaning of 
 the terms used in a contract is not admis- 
 sible, even where the meaning of the terms in 
 any particular business may be shown : King 
 V. Nelson, 36-509. 
 
 Further as to opinions of witnesses, see 
 Evidence, I, 4. 
 
CONTEACTS, X. 
 
 3X7 
 
 Construction. 
 
 402. Surrounding circniustaiices tosliovt' 
 intention: In determining the construction 
 of a contract the subject-matter is to be 
 fully considered. It is equally important to 
 know the situation of the parties and of the 
 property, as also the purpose of the parties 
 in making the contract, for the purpose and 
 intention will be carried into effect so far as 
 the rules of language and law will permit : 
 Field V. Schricher, 14-119. 
 
 403. In the construction of a written con- 
 tract, circumstances surrounding its execu- 
 tion may be introduced in evidence for the 
 purpose of aiding the court in construing it, 
 where there is doubt or ambiguity on its 
 face ; but where no such doubt exists, the 
 terms and conditions of the writings alone 
 must determine the construction : Grimes v. 
 Simpson Centenary College. 42-589. 
 
 404. In the interpretation of a contract the 
 intention of the parties must be ascertained 
 and followed. For this purpose may be 
 shown the extrinsic circumstances which 
 surrounded the transaction, the objects in 
 view inducing the contract and the actions 
 of the parties in connection with it : Corhett 
 V. Berryhill, 39-157. 
 
 405. Custom and usage: The terms of 
 every written instrument are to be under' 
 stood in their plain, ordinary and popular 
 sense, unless they have generally, in respect 
 to the subject-matter, as by the usage of trade 
 or the like, acquired a peculiar sense distinct 
 from the popular sense of the same words ; 
 or unless the context evidently points out 
 that in the particular instance, and in order 
 to effectuate the immediate intention of the 
 parties, it should be understood in some other 
 peculiar sense: Willmering v. McGaughey, 
 30-205. 
 
 406. Therefore, held, that evidence was 
 not admissible to show an understanding of 
 stock dealers as to the language of a particu- 
 lar contract in relation to the sale of stock, in 
 which no technical words were used : Ihid. 
 
 407. The parties are presumed to have in- 
 tended that the language should have its 
 ordinary and received signification, or the 
 meaning which the law attaches to it, but 
 custom may be shown to affect th? construc- 
 tion or to substitute in a particular instance 
 a rule resulting from usage, in place of that 
 which the law, not the contract of the par- 
 
 ties, would prescribe. Whether this usage 
 be ancient, universal and well established, 
 or merely the manner of doing a particular 
 thing in a small neighborhood or by a small 
 class of men for a few years, if it falls 
 within the reason of the rule which makes 
 it a part of the contract, it amounts to a cus- 
 tom. If it is so far established, and so far 
 known to the parties, as that it must be sup- 
 posed that they contracted with reference to 
 it, it comes within the reason of the rule. 
 It may be general or local. If general, then 
 a presumption of knowledge on the part of 
 the contracting parties arises. If local, the 
 knowledge of the' parties must be proven be- 
 fore it can avail to affect the- contract. If 
 established, the length of its duration is not 
 very material. The characteristics of a good 
 custom are said to be that it shall be estab- 
 lished, general, uniform, and known to the 
 parties ; Rindskoff v. Barrett, 14-101. 
 
 408. Where a contract was made for the 
 sale of potatoes of a certain kind, and it 
 appeared that the potatoes offered were not 
 of that kind, but mixed, held, that the testi- 
 mony of a dealer that the potatoes were 
 what, according to custom, would be called 
 the kind required, was not admissible, it not 
 appearing that the custom referred to was 
 either general or within the knowledge of 
 the party sought to be bound: Woods v. 
 Miller, 55-168. 
 
 409. It is competent for parties to contract 
 with reference to a known usage or custom, 
 and evidence tending to support that custom 
 or usage, if pleaded, is properly admitted in 
 construing the contract : Hughes v. Stanley, 
 45-633. 
 
 410. Acts may be interpreted in the light 
 of custom to raise an implied contract, and a 
 contract express or implied may be inter- 
 preted in the light of custom for the purpose 
 of determining its natiu'e and extent where 
 they would otherwise be doubtful. This is 
 about the extent of the office of custom: 
 Doughty v. Paige, 48-483. 
 
 411. A witness engaged in a particular 
 trade may testify as to the meaning of words 
 in a contract as used in that trade to which 
 the contract relates. Such meaning wiU be 
 adopted by the court in the interpretation of 
 the contract : Gooh Mfg. Co. v. Randall, 63- 
 244. 
 
318 
 
 CONTRACTS, X. 
 
 Construction. 
 
 413. Parties to a contract may vary or re- 
 strain by an express stipulation certain rules 
 of law so far as they would otherwise apply 
 to or vary their contract. Usage, then, 
 affords the same evidence of intention as the 
 most direct language, and may have the same 
 effect in varying legal rules: Orinman v. 
 Walker, 9-426. 
 
 413. Parol evidence is admissible for the 
 purpose of showing that in the place where 
 the contract was made the words had, by 
 known and established usage, a different 
 meaning from the general and popular one : 
 Steyer v. Dwyer, 31-20. 
 
 414. Usage or custom cannot control ex- 
 press laiiguiige: A custom cannot overcome 
 an express contract, nor defeat an express 
 limitation, nor be received in evidence to 
 change the obvious meaning of words occur- 
 ring in a written instrument: Wanless v. 
 McCandless, 38-30. 
 
 415. A contract cannot be controlled by 
 a custom which the parties have expressly 
 excluded by necessary implication; as, for 
 instance, by providing that a thing which 
 custom affects shall be done in a different 
 way : Randolph v. Halden, 44^837. 
 
 416. Customs are subordinate to contracts, 
 and will not control where the contract con- 
 tains conditions not in harmony therewith : 
 Smyth V. Ward's Ex'rs, 46-339. 
 
 417. Where a contract fixes a price, and 
 provides in terms that no extras shall be 
 allowed, a custom to the contrary will not 
 control the express stipulation of the parties : 
 Phillips V. Starr, 26-349. 
 
 418. It is not competent to defeat the pro- 
 visions of a contract by proof of the existence 
 of a custom differing therefrom ; for instance, 
 as to the place of payment : Duncan v. Green, 
 43-679. 
 
 419. Where both parties set up and rely 
 upon a contract, tlie difference between them 
 being as to the terms thereof, custom cannot 
 be shown to control or vary such contract, it 
 not appearing that the contract was made 
 vsdth reference thereto : Windland v. Deeds, 
 44r-98. 
 
 420. A warehouse receipt which, by its 
 terms, gives rise to a contract of bailment, 
 cannot be contradicted or varied by evidence 
 of a custom or usage which would require 
 the receipt to be regarded as a contract of 
 
 sale: Marks v. Cass County Mill, etc., Co., 
 43-146. 
 
 421. Evidence of custom to explain the 
 meaning of words used in a contract is not 
 admissible, where the contract is expressed 
 in ordinary language, not referring to prin- 
 ciples of science or art, nor including tech- 
 nical phraseology, or words used in a technical 
 sense : Cash v. Hinkle, 36-683. 
 
 422. Therefore, held, that under a contract 
 for the sale of " sixty-five head of fat hogs, 
 to weigh two hundred and twenty-five 
 pounds and over," it was not competent to 
 prove a custom among dealers by which such 
 language was understood to mean that the lot 
 should average that weight, but that the 
 contract should be construed as requiring 
 the delivery of that number of hogs, each 
 weighing not less than the amount specified : 
 Ibid. 
 
 As to evidence of custom, see Evidence, 
 §§ 60-67. 
 
 423. Coiislrnction in particular cases: 
 In a contract by a railway company agreeing 
 to construct its line through a certain town- 
 ship, and stipulating that it " would erect a 
 depot within one mile of the village of New 
 Hampton in New Hampton township," hdd, 
 that the contract was sufficiently complied 
 with by the erection of a depot within one 
 mile of such village, although the depot was 
 not located within the township, the descrip- 
 tion with reference to the township being 
 held applicable to the village and not to the 
 depot : McGregor <fe S. C. R. Co. v. Foley, 38- 
 588. 
 
 424. Where a note for railway stock was 
 given upon condition " that a depot be estab- 
 lished within the present town of Wheaton," 
 held, that such stipulation referred to the re- 
 corded plat of the town as it existed at the 
 time of the making of the note: Davenport 
 & St. P. R. Co. V. Rogers, 39-298. 
 
 42,5. Under a contract for the erection of 
 a mill, in which the parties warranted it to 
 do good work, and to manufacture an amount 
 of flour per day equal to other good mills 
 with an equal number of burrs of similar 
 dimensions, and having the same quantum 
 of motive power, held, that the warranty 
 was not to be limited to mills constructed 
 upon the same general plan: Mills v. Mabon, 
 9-484 
 
CONTRACTS, X. 
 
 319- 
 
 Construction. 
 
 426. Where a note provided that it was to 
 be paid " on or before the court-house in and 
 for the county of," etc., " is completed," and 
 in an agreement with reference to this nbte 
 it was described as ." payable when the court- 
 house is completed according to the plans 
 and specifications on file," held, that the note 
 itself, and not a recital thereof in the agree- 
 ment, was to control as to the intention of 
 the parties, and that when the court-house 
 was in good faith accepted by the county 
 supervisors, though it differed from the plans 
 and specifications on file, the note became 
 payable : Levally v. HarmorCs Adm'r, 20-533. 
 
 427. By a contract plaintiff agreed to " cut 
 all the timber now standing upon the said 
 tract of land that can be cut into cord-wood 
 and saw-logs.; . . . but this agreement shall 
 not bind the said [plaintiff] to cut and esti- 
 mate any timber standing upon said land the 
 cutting of which will cost, more than fifty 
 per cent, above the customary rates of cut- 
 ting and chopping." Plaintiff having cut 
 wood and logs from said land, but having 
 left other timber thereon which defendant 
 claimed that he was, under the contract, 
 bound to cut, and it appearing that none of 
 the timber so remaining could be cut at fifty 
 per cent, above the customary rates of cut- 
 ting, luld, that plaintiff was under no obliga- 
 tion to cut any of said timber, and was not 
 required by the contract to cut and account 
 for all the timber, provided it could be cut at 
 an average of fifty per cent, above the ordi- 
 nary rates : Wadleigh v. Shaio, 45-535. 
 
 428. A contract for furnishing water to a 
 city by a company chartered for that pur- 
 pose, providing that for a certain period 
 under the charter compensation should be 
 paid at a stipulated rate, and for subsequent 
 periods at reduced rates, construed: Daven- 
 port Water Co. v. Davenport, 64-55. 
 
 429. The members of a partnership having 
 made an agi'eement by which one was to 
 take the assets and pay the debts, held, that 
 the question as to whether the parties in- 
 tended that what one partner might be owing 
 the firm should be considered as assets, or 
 that each partner should be relieved of any 
 liability to the firm or each other, should be 
 submitted to the jury: Carl v. Knott, 16- 
 379. 
 
 430. A contract between plaintiff and de- 
 
 fendant was that if goods sold by the former 
 to the latter were resold by the latter at or 
 above invoice price, a percentage was to be 
 paid plaintiff in addition to the original 
 price of the goods. It appearing that de- 
 fendant used dvie diligence in selling the 
 goods for the highest attainable price, which 
 was less than the invoice price, held, that 
 defendant was under no obligation to keep 
 or render account : Balch v. Ashton, 54-183. 
 
 431. The terms of a contract as to com- 
 pensation for stone work, construed, in a 
 particular case : Shulte v, Hennessy, 40-352. 
 
 432. Under a contract for one hundred 
 thousand brick to be " counted and enumer- 
 ated in the wall according to the custom and 
 rule of brick layers in ascertaining the num- 
 ber of brick in a solid wall, not allowing 
 anything for space occupied by openings in 
 the wall," held, that it was to be construed 
 according to its tei-ms, and the number of 
 brick was to be determined for the purpose? 
 of the contract without regard to the actual 
 count: Brown v. Cole, 45-601. 
 
 433. A contract as to the disposition or di- 
 vision of lands acquired under a land grant, 
 construed in a particular case : Smith v. 
 Cedar Rapids <& M. R. R. Co., 48-239. 
 
 434. A particular contract in relation to> 
 water-power, considered and construed r 
 Adairs v. Wright, 14-22. 
 
 435. A contract as to the grading of a rail- 
 way, cx)nstrued: Fish v. Wolfe, 50-636. 
 
 436. A contract in a particular case, con- 
 strued: Whiting V. Root, 52-292. 
 
 437. Lex loci: A contract, such as a 
 chattel mortgage, properly executed under 
 the laws of another state, will be regarded as 
 of the same obligation and receive the same 
 interpretation in- the courts of this state that 
 it would receive in the courts of the state 
 where it was executed: Smith v. McLean, 
 34-322. 
 
 438. The general rule is that the validity, 
 nature, obligation and interpretation of a 
 contract is to be governed by the law of the 
 place of performance, but if the contract is 
 void or illegal by the law of the place where 
 it is made, it is void and illegal everywhere : 
 McDaniel v. Chicago & N. W. R. Co., 24-412. 
 
 430. Where an agent takes orders for sale 
 of goods in this state, which are subject to 
 acceptance by the principal in another state,. 
 
320 
 
 CONTRACTS, XI, a. 
 
 Performance. — Time. 
 
 the place of acceptance, and not the place of 
 taking the order, is the place of the contract. 
 But if the agreement is completed by the 
 agent in the state where the order is given, 
 that is the place of contract : Tegler v. Ship- 
 man, 33-194 ; Taylor v. Pickett, 53-467. 
 
 440. The common law, or law merchant, 
 where it has received no modification from 
 local custom or statute, will be declared by 
 the courts of this state for themselves, aided 
 by such lights and precedents, as may be 
 found in all the authorities and decisions 
 bearing on the question, and the decision of 
 the courts where a contract under the law 
 merchant is made, there being no statutory 
 custom, are not binding upon the courts of 
 this state : Franklin v. Twogood, 25-530. 
 
 441. Parties in one state making a contract 
 with reference to the law of another must 
 be held to know the laws of the state with 
 reference to which the contract is made: 
 Huthsing v. Bosquet, 3 McCrary, 569. 
 
 Further as to ConplkSt of Laws, see that 
 title. 
 
 Conlracts of sale: As to construction of 
 contracts relating to sales of land, see Vend- 
 ors; and of contracts relating to sales of 
 personal property, see Sales. 
 
 XI. Peefoemance; beeach. 
 
 a. Time of' performance. 
 
 442. Reasonable time: Where a contract 
 specifies no time within which performance 
 shall be completed, the law implies that its 
 stipulations sliall be performed within a rea- 
 sonable time, to be determined by the jury 
 in view of the circumstances under wliich 
 the contract was made and the nature of the 
 subject-matter : Curtiss v. Waterloo, 3S-366 ; 
 Livingston V. loioa Midland R. Co., 35-555. 
 
 443. Therefore, where a railway company 
 had contracted with a land owner to con- 
 struct a cattle pass under its road, held, that 
 the company was not liable for breach of the 
 contract until the pass was demanded for the 
 use and convenience of the land owner : Liv- 
 ingston V. Iowa Midland R. Co., 35-555. 
 
 444. Where time is fixed: In an action 
 for breach of contract which by its terms is 
 to be performed by a fixed time, it is error to 
 instruct the jury that the party may recover 
 
 damages for failure to perform the contract 
 within a reasonable time: Sturgeon v. Soch, 
 43-155. 
 445. Waiver of time of performance: 
 
 Where no objection has been made on ac- 
 count of failure to perform a contract within 
 the time fixed, and no injury therefrom has 
 resulted, delay in performance will not con- 
 stitute a defense : Hutchinson v. New Sharon, 
 C. V. & E. R. Co., 68-727. 
 
 44C. Bnrden of proof: Where it was 
 agreed, upon the transfer of a note, that suit 
 thereon should be brought immediately, but 
 time was not made of the essence of the con- 
 tract, held, that the party whose duty it was 
 to bring suit did not become absolutely liable 
 for failure to sue at once, or at any particular 
 time, except on proof of damage resulting 
 from neglect to bring suit witliin a reasonable 
 time, and that the burden of proof as to that 
 fact was upon the party alleging the damage: 
 First Nat. Bank v. Haug, 53-538. 
 
 447. Party in default cannot recover: 
 When both parties are at fault in the per- 
 formance of a contract, the one cannot re- 
 cover anything against tlie other by reason 
 of the failure of the latter: Smith v. Cedar 
 Rapids <& M. R. R. Co., 43-289. 
 
 448. Where one of the parties to a contract 
 for the construction of a railroad agreed to 
 take a certain sum due to the railroad com- 
 pany in stock subscriptions and aid taxes, 
 held, that the party taking the subscriptions 
 and taxes could not recover from the rail- 
 road company for the performance of the 
 contract without showing an effort to collect 
 such subscriptions and taxes : Arnold v. River 
 R. Const. Co., 35-99. 
 
 449. Executed contr.ict of sale: In an 
 action upon a conti-act to recover the consid- 
 eration agi-eed upon for the sale of property, 
 performance being alleged on the part of the 
 plaintiff and denied by the defendant, held, 
 that as such contract itself showed a sale to 
 defendant of the property, no evidence on 
 the part of the plaintiff was necessary: At- 
 kins V. Anderson, 68-739. 
 
 450. Military substitute not mustered 
 in: Under a contract to serve as a military 
 substitute, held, that the acceptance and en- 
 rollment of the substitute by a local board, 
 and the issuance by said board of a certificate 
 of exemption to the principal, did not entitle 
 
CONTEACTS, XI, b. 
 
 321 
 
 Conditions, etc., to be performed. 
 
 the substitute to recover the price agreed 
 upon when he was afterward rejected before 
 final muster into the service: Butledge v. 
 Squires, 28-53. 
 
 b. Conditions and other stipulations 
 required to "be performed. 
 
 461. Performance of conditions must 
 appear: Where the obligations of a contract 
 on the part of one party are made dependent 
 on the performance of conditions on the part 
 of the other party, the performance or offer 
 to perform such conditions must be shown 
 before the obligatl )n of the contract can be 
 enforced: Cowrtright v. Deeds, 37-503; 
 Wrought Iron Bridge Co. v. Greene, 58- 
 563. 
 
 4.)2. Where defendant agfreed upon a sub- 
 scription to give certain lots and a sum of 
 money in aid of a church building, provided 
 that such building should be erected on his 
 lots, and the building was erected elsewhere, 
 held, that the amount of the subscription 
 could not be collected from him : Patrick v. 
 Barker, 35-451. 
 
 4.53. Independent oovenants: Where an 
 act is to be done by one/ party before the con- 
 sideration act has been done by the other, 
 the covenants to do such acts are independ- 
 ent, and the party suing for breach of con- 
 tract on the part of the opposite party need 
 not allege the performance or offer to pei'- 
 form the covenants on the part of the plaint- 
 iff. An allegation that he is ready and pre- 
 pared to carry out the agreement on his part 
 is sufficient: Lucas v. Snyder, 2 G. Gr., 490. 
 
 454. A covenant with a penalto^ attached 
 will always be considered as independent: 
 Ibid. 
 
 ioo. Strict poi-foriiiance; time material: 
 Where the performance of a particular act 
 in a particular time and manner is made the 
 condition precedent to a contract, the party 
 seeking to enforce such contract must show 
 performance of the condition precedent or 
 something discharging him from such per- 
 formance. The cases where an exact, pre- 
 cise p^Tformance will be dispensed with in a 
 court of law, and a s^ibstantial performance 
 will be held to suffice, are, in their nature, 
 exceptional, and can never be made to apply 
 to a case where, by a fair construction of the 
 Vol. 1—21 
 
 contract, time is made material : Burlington 
 & M. E. B. Co. V. Boestler, 15-555. 
 
 4.3G. Therefore, held, that where, in a sub- 
 scription to a railway company, it was pro- 
 vided that the road was to be constructed to 
 a particular point and put under contract 
 within a year from the date of the subscrip- 
 tion, and completed within twenty months 
 after the contract, a completion of the rail- 
 way, before suit brought, but after the ex- 
 piration of the time when the road should 
 have been constructed by the terms of the 
 contract, was not a substantial performance 
 such as entitled the company to recover on 
 the subscription : Ibid. 
 
 457. In a particular case, held, upon the 
 construction of two instruments together, 
 that time was not therein made of the essence 
 of the contract: Chicago, I. <& D. E. Co. v. 
 Cedar Rapids, I. F. & N. W. E. Co., 67-334. 
 
 Time, when deemtd of the essence, see 
 Vendors, g§ 138-140 ; and Specific PEEroEM- 
 ANCE, gg 51-58. 
 
 458. Substantial perrormance: Where a 
 contract v.-as substantially performed, held, 
 that the fact that there was possibly a slight 
 variance would not be considered sufficient 
 to defeat it : Cedar Falls & M. R. Co. v. Rich, 
 33-118. 
 
 459. Railroad subscriptions: Under a 
 subscription in aid of a railway payable upon 
 condition that the depot and track should be 
 within one mile from a certain point, held, 
 that the location of a side track and a depot, 
 part of which was within the limit, was a 
 sufficient compliance with the terms of the 
 contract: Ibid. 
 
 460. In an action upon a contract of sub- 
 scription in aid of a railroad, held, that the 
 condition that the company should build and 
 own the road was sufficiently complied with 
 where the road was operated by the use of 
 rolling stock leased from another road : Court- 
 right V. Deeds, 37-508. 
 
 461. Held, that a contract to make C. a 
 station was substantially complied with by 
 the location of a depot about one-fourth of a 
 mile from the town plat : Jenkins v. Burling- 
 ton & M. E. R. Co., 29-255. 
 
 462. An agreement by a railroad company 
 to " buUd or allow but one other depot be- 
 tween E. and P.," held not violated by the 
 establishment of a station at a coal bank. 
 
322 
 
 CONTRACTS, XI, b. 
 
 Conditions, etc., to be performed. 
 
 where trains merely stop to take or leave cars ; 
 nor would a "water station" be a violation 
 of the contract : Mahaska County R. Co. v. 
 Des Moines Valley R. Co., 28-437. 
 
 4:G3. Where, in a contract of subscription 
 to a railway company, it was first provided 
 that its road should be constructed to a point 
 within three-fourths of a mile of the corpo- 
 rate limits of a certain town, and a subse- 
 quent agreement with reference to the same 
 matter referred to the completion of the road 
 to such town, held, that the completion of 
 the road in accordance with the first contract 
 was a sufficient compliance with the condi- 
 tions of the last: Courtwright v. Strickler, 
 37-382. 
 
 iiil. In such case, also held, that the con- 
 struction of a depot within three-fourths of 
 a mile of the incorporated limits of the town, 
 measured in a straight line, was a sufficient 
 compliance with the contract, and also that 
 it was not necessary that all the side tracks, 
 etc., be within such limit, if the building was 
 properly situated : Ibid. 
 
 4o5. Where a condition of a subscription 
 of stocli to a railway company was that the 
 road should be located within the limits of a 
 certain town with a station at the same, held, 
 that the condition must be construed as re- 
 quiring the location of the depot within the 
 limits of the town : Davenport & St. P. R. 
 Co. V. O'Connor, 40-477. 
 
 4uS. Where a railway company obtained 
 subscriptions under an agreement to lay its 
 track into a certain city, and also was to be 
 donated land for the erection of machine 
 shops, etc., held, that there was not a failure 
 of consideration because the shops, etc. , had 
 not been erected at the time the action was 
 brought, when it appeared that the track had 
 been laid as agreed, and there was no time 
 agreed upon for the erection of such improve- 
 ments : First Nat. Bank v. Hurford, 29-579. 
 
 4„7. A railway subscription was payable 
 at a certain date, " provided said company 
 shall have their road built and in operation 
 by the first day of January, 1861 ; " held, that 
 the obligor was not bound to pay either the 
 payee or an assignee, unless the condition 
 was complied with, and a completion of the 
 road four years after the time specified was 
 not a sufficient compliance: Thompson v. 
 Oliver, 18-417. 
 
 468. Performance of conditions upon which 
 money in aid of a railroad was to become 
 payable, held sufficient in a particular case : 
 Chicago, D. & M. R. Co. v. Schewe, 45-79. 
 
 46!). The contract in a particular case for 
 the payment of money in aid of a railway 
 being conditioned upon the completion of the 
 railway to a given point by a certain time, 
 held, that such condition was not complied 
 with by the completion of other portions of 
 the railway equally advantageous to the de- 
 fendant: Burlington, C. R. & M. R. Co. v. 
 Whitney, 43-113. 
 
 470. A contract of subscription in aid of 
 the construction of a railway in favor of a 
 certain company or any other company 
 which should grade and tie the road, held, 
 not to make the entire grading and tieing of 
 the road a condition precedent to the sub- 
 scription becoming payable : Iowa N. C. R. 
 Co. V. Blidbenes, 41-367. 
 
 471. Where a note given in aid of a rail- 
 way contained the provision, " the road to 
 be finished by " a, certain date to a point 
 named, held, that this provision not being 
 preceded by the word provided, did not con- 
 stitute a condition precedent, failure to com- 
 ply with which would operate as a forfeit- 
 ure of all the rights of the payee, but that 
 the maker might recoup any damages result- 
 ing ftom the delay in such completion: 
 Dai-is V. Cobban, 39-392. 
 
 472. A condition in a note given in aid of 
 the construction of a railroad, providing that 
 the road should be built, etc., within a certain 
 time, and the note be payable within a certain 
 time thereafter, held, not to be a condition 
 precedent, so as to render the note void on 
 failure of performance of the contract within 
 the time specified : Traer v. Stuart, 46-15. 
 
 473. Other cases of conditions or stipula- 
 tions: Under a contract to convey "when 
 an act of congress shall be passed confirming 
 the title" to the property, etc., "provided 
 the said act shall be passed during the session 
 of congress next ensuing," held, that the 
 passing of the act was a condition, and if at 
 the end of the session of congress next ensu- 
 ing no act such as contemplated by the con- 
 tract had been passed, the contract was void : 
 Clark V. Langworthy, 3-563. 
 
 474. Plaintiff contracted to collect money 
 due on sales made by him for defendant, and. 
 
CONTRACTS, XI, b, c. 
 
 323 
 
 Conditions, etc., to be performed. — Waiver. 
 
 mortgaged property to secure tlie perform- 
 ance of the contract. Defendant took pos- 
 session of the property under the mortgage, 
 claiming that plaintiff had not attempted to 
 collect pai^t of the money due on sales re- 
 maining unpaid, and, no reason appearing 
 for not doing so, held, that he could not re- 
 cover : Scott V. Glaze, 29-168. 
 
 475. Under a contract for publication by 
 defendant of a book for plaintiff, which con- 
 tract contained the provision that plaintiff 
 should procure a copyright therefor, held, 
 that failure on part of plaintiff to take such 
 steps toward procuring a copyright as under 
 the copyright laws should be taken before 
 publication, was a failure of performance 
 and relieved defendant from liability for 
 failure to comply with the contract on his 
 pait, and that under such contract it was not 
 the duty of defendant to furnish plaintiff 
 copies of printed title of the book, to be for- 
 warded under the copyright laws : White v. 
 Day, 56-248. 
 
 476. Where a lease provided for a forfeit- 
 ure upon failure to perform certain acts, 
 held, that as the parties had voluntarily en- 
 tered into the contract, it was not for the 
 court to inquire into their purpose in intro- 
 ducing the conditions thereunder, or to ex- 
 press the opinion that in this respect the 
 contract was a harsh one : Patton v. Bond, 
 50-508. 
 
 477. In an action for damages for failure 
 to perform a contract according to its terms, 
 held error to instruct the jury that the devia- 
 tion from plans and specifications in matters 
 not affecting either the strength, value or 
 convenience of the building to be erected 
 under the contract, would be unimportant. 
 Such an .instruction should be limited • to 
 slight and unimportant deviations : Fauble v. 
 Davis, 48-462. 
 
 478. Evidence in relation to construction 
 of a building under contract held to show a 
 breach of the terms thereof on account of the 
 failure to substantially comply with the re- 
 quirements: Robertson V. King, 55-725. 
 
 479. Where it was provided in a subscrip- 
 tion in aid of the erection of a pork-packing 
 house, that a person named and associates 
 should erect such house, witii certain capac- 
 ity, etc., and the provisions of the contract 
 ■were complied with by the associates of the 
 
 person named, he, however, withdrawing 
 from the corporation formed for the purpose 
 of carrying out such contract, held, that the 
 contract was sufficiently complied with: 
 Paddock v. Bartlett, 68-16. 
 
 480. Failure of third party to perforin 
 conditions: Where plaintiff had furnished 
 timbers to a third party under the agreement 
 that they should be paid for by orders of such 
 third party upon defendant which defendant 
 agreed to pay, held, that without such orders 
 defendant was under no obligation to pay, 
 although the orders were wrongfully with- 
 held by the third party: Drake v. Hill, 
 53-37. 
 
 481. Where the mortgagor under a deed 
 of trust sold the property covered thereby to 
 plaintiff, and an agreement was entered into 
 by all the parties that upon the performance 
 of certain things by the plaintiff, the mort- 
 gagor should execute other security to the 
 mortgagee under the trust deed and that 
 such trust deed should be released, it being 
 shown by the evidence that plaintiff executed 
 his part of the contract, and that the mort- 
 gagor did not execute the other security and 
 release the trust deed, which was subse- 
 quently foreclosed by the defendant, who 
 purchased under the foreclosure sale, h£ld, 
 in an action by plaintiff to redeem, that he 
 was entitled to no relief against the defend- 
 ant mortgagee, but the mortgagor was liable 
 in damages to plaintiff for his failure to per- 
 form the agreement: Beeson v. Hunt, 26- 
 439. 
 
 482. Burden of proof: Where it is sought 
 to defeat action upon a contract by proof of 
 a parol condition, the burden of proof is on 
 the defendant to show the failure to comply 
 with the conditions: Williams v. Niagara 
 F. Ins. Co., 50-561. 
 
 c. Waiver or alteration of conditions 
 or stipulations. 
 
 483. Excuses performance: If the party 
 to a contract, containing a condition u[ on 
 the performance of which his own respon- 
 sibility is to arise, dispenses with such per- 
 formance, or by any act of his prevents it, 
 the other party is excused from showing 
 compliance with its demands : Aitix v. Pelan, 
 5-336. 
 
324 
 
 CONTRACTS, XI, c. 
 
 Waiver or alteration of conditions. 
 
 484. If, by the terms of a contract of sale, 
 the seller is entitled to a written notice of 
 the failure of the property to correspond with 
 the terms of the contract in order that he 
 may remedy defects therein, the fact that he 
 acts upon notice which does not conform to 
 the requirements of the contract will con- 
 stitute a waiver of such requirements : Davis 
 V. Robinson, 67-355. 
 
 485. Where a party intends to require an 
 exact compliance with a contract in respect 
 to notice of breach, etc., he should stand 
 upon the terms of the contract, and any acts 
 indicating his intention not to insist upon 
 such terms will be deemed a waiver thereof : 
 Davis' Sons v. Butrick, 68-94. 
 
 486. Where, under a contract to construct 
 a house by a particular time, a party procured 
 extra work to be done, held, that he thereby 
 waived objection to the failure to complete 
 the house by the time specified : Sweney v. 
 Davidson, 68-386. 
 
 487. If, before the expiration of the time 
 for performing the conditions of a contract, 
 the opposite party agrees to perform his part 
 without i-equiring compliance with such con- 
 ditions, and the other party acts upon or 
 changes his conduct by reason of such dec- 
 larations, the conditions may be regarded 
 as waived : Burlington, C. It. <& M. S. Co. 
 V. Whitney, iS-nS. 
 
 488. Under a contract to convey land 
 upon the performance of certain conditions 
 intended for the benefit of the grantor, held, 
 that the execution of a conveyance in pur- 
 suance of the contract was a waiver of the 
 condition and that a breach thereof could 
 not afterwards be relied on to defeat such 
 conveyance: Audubon County v. American 
 Emigrant Co., 40-460. 
 
 489. Where a note for the payment of 
 money in aid of a railway was placed in the 
 hands of third parties to be delivered to the 
 company upon performance of certain con- 
 ditions, one of which was the entering into 
 an obligation not to erect another depot 
 within a certain distance of the one provided 
 for in the contract, held, that the condition 
 that such obligation must be entered into 
 must be considered waived, in view of the 
 fact that the note was delivered to the com- 
 pany and the construction of its road com- 
 pleted without such condition being insisted 
 
 upon, it also appearing that no other depot 
 had in fact been built within the prescribed 
 limit: Burlington, O. B. & M. R. Co. v. 
 Palmer, 42-333. 
 
 490. Assent to change: Knowledge of 
 change in the method of performing a con- 
 tract and assent thereto by opposite party 
 will estop him from afterwards objecting to 
 such change : Garretty v. Brazell, 34^100. 
 
 491. A contract for the sale of a harvest- 
 ing machine which provided for its return at 
 a certain place, held to entitle plaintiff to re- 
 cover thereon, though at defendant's request 
 the machine was delivered at another place, 
 and additional agreements were made not 
 constituting a new contract but additions to 
 the old one ; Gammar v. Bargain, 37-369. 
 
 492. The bringing of action to recover 
 compensation under a contract waives any 
 breach thereof by the other party, and plaint- 
 iff cannot, in addition to compensation, re- 
 cover damages for sucl breach: Bu.sh v. 
 Chapman, 2 G. Gr., 549. 
 
 493. Independent acts: Where covenants 
 bind the parties to a contract to perform in- 
 dependent acts which separately constitute 
 a consideration for the covenants, the accept- 
 ance and the 4)erformance of one of the in- 
 dependent covenants with knowledge that 
 another has not been performed will consti- 
 tute a waiver of such performance: Jordan 
 V. State Ins. Co., 64-316. 
 
 494. Therefore, held, that where an insur- 
 ance policy was issued in consideration of an 
 agreement on the part of assured to pay cer- 
 tain premiums, coupled with a warranty as 
 to the occupancy of the building, held, that 
 the receipt of the premiums with knowledge 
 of the fact that the building was not oc- 
 cupied according to the wan-anty was a 
 waiver of such breach : Ibid. 
 
 495. Waiver of time of performance es- 
 pecially provided for in a contract wUl not 
 affect the other provisions of the contract, 
 and a recovery may be had after perform- 
 ance in the same manner as though perform- 
 ance had been within the time stipulated: 
 Flynn v. Des Moines & St. L. R. Co., 63- 
 490. 
 
 496. Consideration for -naiver: A party 
 may waive performance of conditions stipu- 
 lated in a contract without consideration, 
 and cannot afterwards maintain action for 
 
CONTRACTS, XI, d, e. 
 
 325 
 
 Acceptance of performance. — Excuses for non-performance. 
 
 failure to perform such conditions: Stevens 
 V. Taylor, 58-664. 
 
 497. Mere silence as to the non-pev- 
 formance of conditions will not be sufficient 
 to constitute waiver of their performance 
 within the time specified : Burlington & M. 
 R. R. Co. V. Boestler, 15-555. 
 
 498. Where a contract of subscription in 
 aid of a railway was conditioned upon the 
 completion of the road to a particular point 
 by a particular time, held, that the fact that 
 the subscriber requested other portions to be 
 completed within the time did not constitute 
 a waiver of the particular condition specified : 
 Burlington, 0. R. & M. R. Co. v. Whitney, 
 43-113. 
 
 d. Aocej>tano6 of performcmce. 
 
 490. Effect of: Where a party makes pay- 
 ment under a contract with knowledge of 
 the manner in which it is being performed, 
 and is present during the performance, con- 
 senting to such method of performance, and 
 admits he is suited with it when finished 
 and takes possession, these facts may be con- 
 strued as showing that the contract has 
 been performed as required: Demoss v. 
 Noble, 6-530. 
 
 500. The ratification of a contract made 
 with full -knowledge of all that has been done 
 thereunder will prevent the party ratifying 
 from taking advantage of any previous fail- 
 ure on the part of the other party to comply 
 with all the terms of the contract : Warren 
 V. Ewing, 34^168. 
 
 501. Where the party for whom work is 
 being performed under a contract is present 
 during its progress giving directions concern- 
 ing it without making objections to the man- 
 ner in which it is done, and accepts the 
 work without objection, these facts are 
 proper to be given in evidence to rebut a 
 claim for damages for defective execution of 
 the work ; but the party is not to be precluded 
 by such an acceptance from showing that 
 such work was defectively or improperly 
 done: Mitchell v. Wiscotta Land Co., 3-209. 
 
 502. The fact that an article manufactured 
 and delivered by contract is delivered after 
 the time when by the terms of the contract 
 it should have been delivered, and is accepted 
 and used by the other party, will not consti- 
 
 tute an absolute waiver of the right to re- 
 cover damages for the delay in completion 
 and delivery: Hansen v. Kirtley, 11-565. 
 
 503. An acceptance of a house by the 
 owner of the land whereon it is built for him 
 under contract will not prevent him from 
 showing that the work was done in an un- 
 workmanlike manner: Kilboume v. Jen- 
 nings, 40-473. 
 
 504. The owner of property who sees work 
 done thereon under a contract without objec- 
 tion is not prevented from setting up the 
 fact that the work does not comply with the 
 contract : Smith v. Bristol, 33-24. 
 
 505. A party suing for compensation for 
 services under a contract in erecting a build- 
 ing upon defendant's real property need not 
 show an acceptance by defendant. The im- 
 provement attaches to the realty and passes 
 to the owner without the formality of deliv- 
 ery and acceptance : Crookshank v. Mallory, 
 8 G. Gr., 257. 
 
 506. An offer to pay for work performed 
 in pursuance of a contract, without objection 
 to the manner of performance, is an admis- 
 sion that the work is performed in accord- 
 ance with the stipulations of the contract: 
 Sutton V. Maines, 68-650. 
 
 e. Excuses for non-performance. 
 
 507. Act of opposite party: The fact that 
 a party is prevented from completing the 
 performance of a contract on his pai-t by de- 
 fault of the other party will not defeat his 
 right to recover : Shulte v. JSennessy, 40-353. 
 
 508. Where a contract provided for the 
 delivery of railway ties upon cars at a par- 
 ticular station, held, that the failure of the 
 other party to furnish cars would not excuse 
 failure to deliver the ties at a place conven- 
 ient for loading upon cars : Council ^Bluffs 
 Iron Works v. Cuppey, 41-104. 
 
 509. Impossibility of performance ; act of 
 God : When a duty is imposed by law, an act 
 of God rendering its discharge impossible 
 will excuse performance, but the perform- 
 ance of a contract will not be excused on that 
 ground. When one binds himself by a 
 solemn agreement to do an act, he is held 
 liable for its performance, though it is ren- 
 dered impossible by events over which he has 
 no control, provided those events are such 
 
326 
 
 CONTKAOTS, XI, e. 
 
 Excuses for non-performance. 
 
 as that the parties could have provided 
 against them in their contract : District T'p 
 V. Smith, 39-9. 
 
 510. The fact that the performance of the 
 tprms of a contract becomes impossible or is 
 greatly impeded by the weather, no provis- 
 ion being made against such contingencies, 
 will not afford an excuse for non-perform- 
 ance: Wolfv. Des Moines & Ft. D. R. Co., 
 64-380. 
 
 511. When the performance of a contract 
 becomes impossible by the act of God, the 
 obligor is excused and his rights under the 
 contract are not forfeited. This rule contem- 
 plates cases of absolute impossibility to per- 
 form. But where, by reason of the sickness 
 of assured, under a policy of life insurance, 
 there was a failure to pay the annual pre- 
 mium, which by the terms of the policy 
 worked a forfeitui-e thereof, held, that as 
 such payment might have been made by 
 others for the assured, the impossibility of 
 making it personally would not excuse the 
 failure nor prevent the forfeiture : Carpenter 
 V. Centennial Mut. L. Ass'n, 68-i53. 
 
 512. Mistake: The failure of a party 
 through mistake to perform his contract will 
 constitute no defense; notwithstanding he 
 has used care and diligence in the effort to 
 perform: Robertson v. Seevers, iS-28l. 
 
 613. Equity will not relieve a party from 
 performing the stipulations of a contract 
 upon the express terms therein named when 
 the facts with reference to which the con- 
 tract is made are equally within the knowl- 
 edge or means of knowledge of both parties 
 and there has been no fraud or concealment 
 in the transaction : Owens v. Butler County, 
 40-190. 
 
 514. Therefore, held, that, under a con- 
 tract for the erection of abutments for a 
 bridge to be founded upon the rock, extra 
 compensation could not be recovered by rea- 
 son of the fact that the rock was deeper be- 
 low the surface than was expected by the 
 pities: Ibid. 
 
 615. Sale of property not on hand: In an 
 action upon a contract for the sale of pota- 
 toes, which contemplated immediate deUv- 
 ery, held, that it was not proper to show that 
 the seller did not have the potatoes on hand 
 but was compelled to collect them before 
 filling the contract, in order to excuse delay. 
 
 in performance on his part : Woods v. Miller, 
 55-168. 
 
 51G. Change of circumstances: Where, 
 by acts of congress in aid of the formation 
 of connecting lines of railroad and the con- 
 struction of a railroad bridge across the Mis- 
 sissippi river, certain services which were to 
 be rendered by an elevator company to a 
 railway company in handhng grain at its 
 terminus became useless, Jield, that the rail- 
 way company was not thereby relieved from 
 liability to pay for services to be rendered 
 under such contract: Railroad Co. v. Rich- 
 mond, 19 Wall., 584. 
 
 517. Accidental destruction after com- 
 pletion: Where a contractor undertook to 
 furnish materials for and perform the car- 
 penter woi'k of a building, and after the com- 
 pletion of his contract the building was 
 blown down by a wind storm, held, that his 
 contract had been completed and he was en- 
 titled to recover payment therefor : Garretty 
 V. Brazell, 34-100. 
 
 518. Under a contract for the construction 
 of a coffer-dam " sufficient to turn the water 
 of the river into the mill-race, so as to allow 
 the mill to run," payment to be made " when 
 the dam is finished and the water turned 
 effectually into the mill-race, so as to permit 
 of the mill being run," held, that if the dam 
 was constructed sufficient to turn the stream 
 into the race so as to supply the mill in the 
 usual stage of water, it was a sufficient com- 
 pliance with the contract, although it was not 
 sufficient to resist an unusual rise in the 
 stream : Hancock v. McFarland, 17-124. 
 
 51!). Other casrs: Where a telegraph com- 
 pany undertook to furnish to plaintiff true 
 market reports, held, that it was immaterial 
 whether an error therein was occasioned by 
 the defendant in the transmission of such re- 
 ports or by a preceding company from whom 
 it was understood such reports were to be ob- 
 tained: Turner v. Hawkeye Tel. Co., 41-458. 
 
 520. Where a contract was made for the 
 sale of a lot of cattle, it being understood that 
 the entire lot was to be got together and de- 
 livered at one time, held, that it w,as no 
 defense to an action for breach of the contract 
 Sy defendant that they could not all be found, 
 it appearing that he did not make diligent ef- 
 fort to find them and* did not want to: Boies 
 V. Vincent, 24r-387. 
 
CONTRACTS, XI, f. 
 
 Demand ; tender ; ofiEer to perform. 
 
 621. Burden of proof: "WEere defendant 
 set up failure of plaintiff to perform his con- 
 tract as a defense to an action thereon, held, 
 that the burden of showing such failure' was 
 upon defendant, but this being shown, the 
 burden of showing a valid excuse for such 
 failure was upon the plaintiff, and it was not 
 for defendant to negative such excuse in the 
 first instance : Fauble v. Davis, 48^63. 
 
 f. Demand; tender; offer to perform. 
 
 622. Demand necessary : Where payment 
 of an obligation was to be made in sawing 
 logs at defendant's saw-mill, held, that the 
 fact that such saw-mill was burned before 
 demand for performance of the service, 
 would not excuse demand and render defend- 
 ant liable to a money judgment : Davidson 
 V. Overhulser, 3 G. Gr., 196. 
 
 623. Ueraand unnecessary: Where a debt 
 is payable in personal property to be deliv- 
 ered at a particular time, and the debtor 
 fails to make such delivery, the creditor may 
 sue for the money due without demanding 
 the property: Crabtree v. Messersmith, 19- 
 179. 
 
 When demand necessary on notes payable 
 in property, see Bills and Notes, g§ 177, 178, 
 183, 184. 
 
 524. Refnsal to pay in property according 
 to co/i tract: Under a contract to pay for 
 services in property, the party who has per- 
 formed the services may recover the money 
 value upon the refusal of the other party to 
 pay the property as agreed : Stewart v. Craig, 
 3 G. Gr., 505. 
 
 525. Keadiness to perform: Under a con- 
 tract for services to be rendered at a future 
 day, there can be no recovery of substantial 
 damages by the person contracting to render 
 the services, unless he can show that he was 
 ready and willing to perform on his part and 
 notified the other party of that fact. Mere 
 readiness is insufficient and is immaterial, un- 
 less the other party had knowledge thereof : 
 Watson V. Moeller, 63-161. 
 
 520. Effect of tender: In an action upon 
 n promissory note payable in property, proof 
 of an offer to perform by the maker and re- 
 fusal to receive by the payee is not sufficient 
 to release the maker from the obligation of 
 the contract, but may be shown to defeat 
 
 action on the note, and excuse the maker 
 from payment until payee shall demand de- 
 livery -of the property, and notify the maker 
 that he is willing to receive it : Williams v. 
 Triplett, 3-518. 
 
 527. Tender of purchase price: In an 
 action for damages for failure to deliver a 
 certain number of sheep of a certain quality 
 according to contract, to be paid for at a 
 specified rate per pound, held, that failure of 
 plaintiff to tender the balance of the pur- 
 chase price at the proper time was not a 
 failure to perform his part of the contract so 
 as to defeat his action, for the reason that 
 the balance of the purchase price could not 
 be determined until the sheep were tendered 
 and weighed : Aller v. Pennell, 51-537. 
 
 528. Tender, when to be made: Tender 
 of payment in order to discharge the condi- 
 tions of a contract may be made at any hour 
 of the day fixed for its performance when it 
 would not be unreasonable to require the 
 party to whom the tender is made to accept 
 payment : McClartey v. Gokey, 31-505. 
 
 629. Therefore, held, that tender of pay- 
 ment of purchase money under a contract to 
 convey made at half past eight in the even- 
 ing of the day fixed for payment was suffi- 
 cient: Tbid. 
 
 630. Tender of stoclt on stock subscrip- 
 tion: Where a, note is executed on a sub- 
 scription for stock under which it is agreed 
 that the certificates of stock shall be delivered 
 when the note is paid, tender of the certifi- 
 cates must be shown in order to support an 
 action upon the note : Hedge v. Gibson, 58- 
 656 ; Cooper v. Mc.Kee, 49-286 ; Courtright v. 
 Deeds, 37-503 ; Laivrence v. Smith, 50-708. 
 
 531. A contract payable in stoclc cannot 
 be sued on until the stock has been de- 
 manded : Markley v. Rhodes, 59-57. 
 
 6.S2. Contract to teach : Where a teacher 
 employed for a definite time was prevented 
 from completing the service contracted for 
 by a pretended dismissal on the part of the 
 board of directors, and upon appeal to the 
 county superintendent such action was set 
 aside, held, that the teacher was excused 
 from performing or offering to perform his 
 duties under the contract during the pend- 
 ency of the appeal, but that upon the final 
 decision that the discharge was illegal, he 
 should have performed or offered to perform 
 
328 
 
 CONTRACTS, XI, g. 
 
 Part performance. 
 
 his duty during the remaining term of the 
 contract, and not having oflEered to do so, he 
 could not recover for breach of the contract 
 after the time that his discharge was lield by 
 the superintendent to be invalid: Park v. 
 Independent School Dist., 65-209. 
 
 As to delivery and tender in case of sale of 
 chattels, see Sales, II. 
 
 g. J'art performance. 
 
 As to compensation for services under 
 abandoned or broken contract, see su,pra, 
 §§ 104-111. 
 
 533. Divisibility: Where, by the language 
 of the contract, the work consists of several 
 distinct items, and a price is apportioned to 
 each, action may be maintained on the con- 
 tract for the price of a distinct item of the 
 work: JHhol v. Minott, 9-403. 
 
 534. As to whether a contract, by virtue 
 of which defendant agreed to transfer to 
 plaintiff his bank business and the best build- 
 ing lot in town, to be selected by plaintiff, 
 provided that plaintifE would build thereon 
 and become a resident of the town, and to 
 sell to plaintiff a farm belonging to defend- 
 ant at a stated sum per acre, and give up to 
 plaintiff defendant's chance of purchasing a 
 certain other tract, was divisible so that 
 without regard to the residence and building 
 plaintiff could enforce against defendant a 
 transfer of the tract of land which defendant 
 had contemplated purchasing and had subse- 
 quently purchased, the court was equally 
 divided : McDanids v. Whitney, 38-60. 
 
 535. Under a subscription by a county to 
 the stock of a railway company, by the terms 
 of which certificates of fiaid up stock were to 
 be issued upon payment of the amounts sub- 
 scribed, held, that the county was not 
 entitled, after a partial payment of the sub- 
 scription, to a proportional number of shares 
 of paid up stock, although it had, by adjudi- 
 cation of the courts, been prohibited from 
 making further payment on the ground that 
 the contract was void and without authority : 
 Wapello County v. Burlington & M. R. B. 
 Co., 44-585. 
 
 53C. Entire contract: A plaintiff suing 
 upon an entire contract and alleging com- 
 plete performance is not entitled to recover 
 upon proof of partial performance -.Logan v. 
 Tibbott, 4 G. Gr., 389. 
 
 537. Qnantuni meruit for p.irtial per- 
 formance: If a job of work is of some use 
 and value to the employer, although it is not 
 properly done, or within the stipulated time, 
 still the workman is entitled to recover as 
 much as the work is reasonably worth, mak- 
 ing such allowances as the circumstances 
 may require for failure to comply with the 
 terms of the contract: Crookshank v. MaU 
 lory, 2 G. Gr., 257; Davis v. Fish, 1 G. Gr., 
 406. 
 
 538. If, on failure to perform the whole of 
 a contract, its natm-e is such that the em- 
 ployer can reject what has been done and 
 refuse to receive any benefit from it, he is 
 entitled so to do, and in such case is not 
 liable to be charged. But where the party 
 receives value, takes and uses the materials, 
 or has advantages from the labor, he is liable 
 to pay the reasonable value of what he re- 
 ceives : Eyser v. Weissgerber, 2-463. 
 
 539. But in such case the action must be 
 for the value of the services rendered and 
 not under a special contract. If the action 
 be brought upon the special contract, a re- 
 covery cannot be had on account of failure to 
 perform: Ibid. 
 
 540. In an action upon special contract, 
 plaintiiBf can recover the reasonable value of 
 his work and labor although he has not per- 
 formed such contract according to its terms, 
 subject, however, to a deduction of the dam- 
 ages sustained by the other party by reason 
 of the violation of the contract ; Freher v. 
 Geeseka, 5-472. 
 
 541. Where a party renders services under 
 an entire contract, but it is broken by his own 
 fault, he can recover for the services per- 
 formed as upon a quantum meruit, subject to 
 defense on behalf of the other party, based 
 on the breach of the contract, for the purpose 
 of reducing the amount of recovery and de- 
 ducting what it will reasonably cost to secure 
 a completion of the whole services as well as 
 any damage sustained by reason of the non- 
 fulfillment of tbe contract : Pixler v. Nichols, 
 8-106; Byerlee v. Mendel, 39-382; McClayv. 
 Hedge, 18-66; Wolf v. ffflrr, .48-339. 
 
 542. If, in such case, it is found that the 
 damages are equal to or greater than the 
 value of the services rendered, or that the 
 employer, having the right to the perform- 
 ance of the whole contract, has not received 
 
CONTRACTS, XI, h. 
 
 329 
 
 Manner and sufficiency of performance. 
 
 any beneficial services, the plaintiflE is not en- 
 titled to recover. So, also, if it appears that 
 it veas expressly agreed that if the employee 
 left the services of the employer before the 
 expiration of the time limited, nothing was 
 to be considered as earned by him, such an 
 agreement would be enforced: Pixler v, 
 Nichols, 8-106. 
 
 643. An instruction that recovery may be 
 had for services performed, though not ac- 
 cording to the contract, is erroneous unless it 
 recognizes the right of defendant to set off 
 the damages occasioned by reason of the 
 breach of contract : Tait v. Sherman, 10-60. 
 
 544. The measure of recovery for the part 
 performance is to be in accordance with 
 the terms of the special contract : Byerlee v. 
 Mendel, 39-383. 
 
 And see Damages, §§ 145-147. 
 
 545. Where services are rendered in part 
 performance of a contract providing for pay- 
 ment at a specified time in the future, and 
 there is a breach of the contract by failure 
 of such party to complete the services, he 
 should not be allowed recovery even for such 
 partial performance until the time for pay- 
 ment provided for in the contract, even 
 though the amount of the premature recov- 
 ery is reduced so as to represent the present 
 worth of what may be recovered at the 
 proper time : Powers v. Wilson, 47-666. 
 
 546. Where a party has paid a sum of 
 money in part performance of a contract, he 
 cannot, upon a breach on his part as to f uU 
 performance, recover back what he has paid, 
 less the damages which defendant has suf- 
 fered by the breach. No right of action can 
 accrue in such cases without some fault on 
 defendant's pai-t: Stevens v. Brown, 60-403. 
 
 h. Manner and sufficiency of per- 
 formance. 
 
 547. By a subcontractor; mail contract: 
 
 Although a contract for service may be of 
 Buch nature that the rights and obligations 
 of a party thereunder cannot be assigned, 
 yet the contractor may employ other parties 
 to execute the contract on his pai-t ; so held 
 with regard to a contract by the government 
 to carry mails, which by the statute is made 
 non-assignable : Gordon v. Dalhy, 30-233. 
 
 548. A person thus contracting to carry 
 mails may contract with another to perform 
 
 the service without the consent of the post- 
 offlce department, and such contract will not 
 be void between the parties ; but if such con- 
 sent is not obtained, the original contractor 
 and his sureties will be liable for any default 
 in the performance of the contract, while 
 the parties to the second contract must set- 
 tle the question of damages between them- 
 selves : Pierce v. Walker, 33-434. 
 
 549. Acts not coiitempluteil I y t'le con- 
 tract: A performance or abrogation of the 
 contract cannot be shown by acts not con- 
 templated by it and done without a purpose 
 or intention to that end : Wendall v. Osborne, 
 63-99. 
 
 550. Workmanlike manner ; inadequacy 
 of consideration : Where a contract providing 
 for the construction of a building says noth- 
 ing as to the manner in which the work is to 
 be done, it is presumed that it is to be done 
 in a workmanlike manner. The fact that the 
 consideration is grossly inadequate will not 
 be proper to be considered in determining 
 the quality of the work required by the con- 
 tract : Smith v. Bristol, 33-34. 
 
 551. Engineer's estimate: When it was 
 agreed that excavations should be made at so 
 much per cubic yard, to be paid upon the 
 engineer's estimates, held, that such estimates 
 were conclusive between the parties in the 
 absence of fraud, mistake, undue influence 
 or want of good faith: Mitchell v. Kava- 
 nagh, 38-386. 
 
 652. Where a contract for the grading of 
 a railroad contained a provision that the chief 
 engineer of the railroad company should de- 
 termine the amount and the classification of 
 the work done, and that his decision should 
 be final and conclusive, held, that upon re- 
 fusal of the engineer to make the estimates 
 and of the railroad company to recognize the 
 contract, the person performing the services 
 under the contract might, in an action there- 
 for, give in evidence the measurements of 
 another competent person to prove the 
 amount of work performed: Crawford v. 
 Wolf, 29-567. 
 
 553. Where a contract for the purchase 
 and delivery of ties provided for the reten- 
 tion of ten per cent, of all payments becom- 
 ing due as the work progressed as security 
 for the completion of the contract, and that 
 whenever, in the opinion of tlie engineer of 
 
330 
 
 CONTRACTS, XI, i. 
 
 Breach. 
 
 the purchasers, the contract was completely 
 performed, the full sum due should be paid, 
 held, that such contract did not prevent the 
 recovery of a quantum meruit for the part 
 performance upon failure to complete the 
 contract : Jemmison v. Gray, S9-537. 
 
 554. Person authorizeil to determine 
 sufficiency: A contract which provides that 
 a certain person shall decide all disputes aris- 
 ing during its performance, and that such de- 
 cision shall be final and conclusive, will not be 
 construed to constitute such person the final 
 umpire to decide mixed questions of fact and 
 law, and to determine the uliimate question 
 of a right to recover : Ibid. 
 
 555. Where a contract provides thalj the 
 person agreed upon shall ascertain and cer- 
 tify the amount due under the provisions of 
 the contract, and he has in fact done so, the 
 other party may then bring suit for such 
 amount : Flynn v. Des Moines & St. L. R. 
 Co., 63-490. 
 
 i. breach. 
 
 556. Abuse of discretion, where discre-. 
 tion is given; mining contract: Where de- 
 fendant entei'ed into an obligation to pay 
 plaintiff a sum of money upon the finding 
 and development of a paying vein of coal, it 
 being provided that defendant should use all 
 reasonable efforts to sell the stock to raise 
 sufficient money to dig a shaft, held, that the 
 failure of defendant to sink the shaft and to 
 develop the vein of coal would not render it 
 liable unless it could be shown that it acted 
 in bad faith, or that there was an abuse of 
 discretion on its pai-t in the prosecution of 
 the work : Oliphant v. Woodbum Coal, etc. , 
 Co., 63-332. 
 
 557. Befusal to rcceiTe property tendered 
 in pursuance of a contract is sufficient to 
 constitute a breach thereof : Buford v. Punk, 
 4 G. Gr., 493. 
 
 558. By a party putting it out of his 
 power to perJorm : Plaintiff, in an action for 
 •damages for breach of contract for sale of 
 cattle, held not obliged to tender the price of 
 the cattle as a condition precedent to recover, 
 after showing a subsequent sale of the cattle 
 by defendant to another person: Boies v. 
 Vincent, 34-387. 
 
 559. Before time of performance: If a 
 party to a contract disables himself from per- 
 
 forming, he may be sued, as for a breach 
 thereof, before the day for performance ar- 
 rives : Crabtree v. Messersmith, 19-179. 
 
 5(iO. Renunciation; putting out of power 
 to perform: Where a party to a contract, 
 before the time for performance, puts it out 
 of his power to perform, or renounces or re- 
 pudiates the contract, the other party may at 
 once maintain action for the breach thereof 
 to recover the damages sustained: Ibid.; 
 McCormick v. Basal, 46-235; Richmond v. 
 Dubuque & S. C. R. Co., 40-364. 
 
 561. Breach of promise of marriage: If, 
 before the time to perform a conti'act of 
 marriage arrives, the promisor renounces 
 the contract, the promisee may treat this as 
 a breach and at once maintain an action ; and 
 a subsequent offer by defendant to execute 
 the contract would not be a defense nor go 
 in mitigation of da^mages ; Holloway v. Orif- 
 fith, 33-409. 
 
 See, also, Beeach op Promise. 
 
 562. Breach of contract docs not termi- 
 nate it: One of the parties to a contract can- 
 not, by voluntary breach of one or all of its 
 covenants, impose upon the other the neces- 
 sity of regarding it as wholly abandoned 
 or treating the breach as a total breach, 
 whereby the innocent party would be de- 
 prived of benefits or advantages which would 
 otherwise flow from the contract : Richmond 
 V. Dubuque & S. C. R. Co., 33-422; Rich- 
 7nond V. Dubuque & S. C. R. Co., 40-364. 
 
 563. And if the contract is not wholly 
 abandoned and the ants of the pai'ty do not 
 constitute an entire breach, the prior judg- 
 ment against such party for prior breaches 
 will not operate to bar subsequent actions for 
 other breaches. The breach of the contract 
 not being considered as entire, the party is 
 liable in a subsequent action for damages ac- 
 cruing after the first judgment : Ibid. 
 
 564. Divisibility; partial breach: Where 
 a contract between a railway company and 
 the owner of a warehouse provided that the 
 former was to deliver tp the latter all 
 through grain of a certain description shipped 
 over their line during a period of years, and 
 pay a certain amount per bushel for the 
 handling of the same, lield, that such con- 
 tract was not entii-e and indivisible, so that, 
 the time of payment not being provided for, 
 payment was to be made only when all the 
 
CONTRACTS, XI, i. 
 
 831 
 
 Breach. 
 
 services were completed, but that the con- 
 tract required the performance of successive 
 acts, whereby the services of the owner of 
 the warehouse were to be called into i-equisi- 
 tion, and for any breach of contract on the 
 part of the railway company the warehouse- 
 man could at once maintain an action : Rich- 
 mond V. Dubuque & S. C. R. Co., 33-422, 
 493. 
 
 565. Collusion or evasion: In such case 
 held, that the railway company could not 
 evade the contract by inducing shippers to 
 bill grain to thit point and theii rebill it 
 without breaking bulk (the contract with 
 the warehouseman having relation only to 
 through grain), and that the compensation 
 due on through grain could be recovered on 
 grain thus billed : Ihid. ; Richmond v. Du- 
 buque & S. C. R. Co., 40-364. 
 
 56(5. Assignment dues not constitute 
 breacli : The act of one party to a coptract, 
 in transferring to another the business in 
 connection with which the contract was 
 made, with the stipulation that the assignee 
 shall perform the terms of the contract, does 
 not amount to a breach thereof, terminating 
 his liability for future breaches : Richmond 
 V. Dubuque & S. C. R. Co., 33-433, 497. 
 
 567. Partial brpach: Where plaintiff sold 
 to defendant ten car loads of barley to cor- 
 respond with a sample, under an agreement 
 that they should be delivered from time to 
 time and paid for by defendant on delivery, 
 and defendant refused to comply with the 
 contract as to payment on delivery of the 
 first car load, held, that the contract was 
 severable, and that the breach of the contract 
 on defendant's part did not release the plaint- 
 iff from the obligation to furnish the other 
 car loads as stipulated, defendant having ex- 
 pressed his iai;3ntion to comply with the pro- 
 visions of the contract in the future : Myer 
 V. Wheeler, 65-390. 
 
 56S. A contract for carriage of goods to 
 certain points at certain rates, respectively, 
 but containing the condition that such rates 
 should be the same as the lowest to points 
 named, held, not shown to be broken as to 
 all shipments to both points by proof of lower 
 rates to one of the points : Murphy v. Creigh- 
 ton, 45-179. 
 
 569. Sale of good-will: Where defendant 
 sold to plaintiff the good-will of his real estate 
 
 and law business, agreeing to turn over his 
 list of correspondents, give letters of intro- 
 duction, etc., and not to engage in the busi- 
 ness for three years, held, that after the ex- 
 piration of that time, it was not a breach of 
 contract to solicit business from his former 
 correspondents: Hanna v. Andrews, 50-463. 
 5 70. An agreement by one person, upon the 
 sale of the good-will of his business to an- 
 other, not to carry on the same business, is 
 revoked by the formation of a pai-tnership 
 between such parties for the carrying on of 
 the business, and is not revived by the disso- 
 lution of the partnership : Norris v. Howard, 
 41-508. 
 
 571. A contract for the sale of the good- 
 will of a business in which a party is engaged 
 does not prevent him from taking employ- 
 ment under other persons already engaged in 
 carrying on the same business, provided he 
 acts in good faith and not for the purpose of 
 establishing a rival business: Grimm, v. 
 Warner, 45-106. 
 
 572. Where, in connection with the sale of 
 land, the grantor bound himself not to carry 
 on the business of keeping a tavern upon 
 adjoining land, held, that such agreement 
 was violated by occasionally keeping travel- 
 ers for pay, although such grantor did not 
 hold himself out to the world as a tavern- 
 keeper: Heiohew v. Hamilton, 4 G. Gr., 
 317. 
 
 Further as to sale of good-will, see supra, 
 §g 356-364. 
 
 As to measure of damng'e for breach of 
 contract, see Damages, II, c. 
 
 573. Rescission after part performance: 
 Where a party to a contract wrongfully re- 
 scinds and places it beyond the power of the 
 other to secure any of the benefits in com- 
 pensation for services rendered thereunder, 
 the party injured may recover the value of 
 such services : Barr v. Van Duyn, 45-338. 
 
 574. A party cannot refuse to perform the 
 conditions of a contract on account of viola- 
 tions of conditions by the opposite party, and 
 at the same time consider the contract in 
 existence and sue for further breaches thereof 
 by the other party. If he refuses to perform 
 the conditions on his part on account of breach 
 of the other party, he can only recover dam- 
 ages already occasioned by such breach ; Hall 
 V. Stewart, 58-681. 
 
3:32 
 
 CONTRACTS, XI, i; XII, a. 
 
 Breach. — Bescission. 
 
 575. Breach of covenant by assignee: 
 
 "Where one railroad succeeding to the rights 
 of another became bound to pay the indebt- 
 edness of the first company, held, in an actiojj 
 for damages arising from breach of a covenant 
 to maintain a side-track along certain lots, 
 made by the first company in consideration 
 of land furnished for construction, that the 
 making of the covenant by the new company 
 did not discharge the indebtedness of the old 
 company, and whatever of the covenant was 
 not performed, left so much of the indebted- 
 ness of the old company unsatisfied: Ams- 
 dm V. Dubuque & S. C. B. Co., 38-542. 
 
 576. Indemnity ; assumption of indebted- 
 ness: If a condition or promise be only to in- 
 demnify and save harmless a party from some 
 consequence, no action can be maintained un- 
 til actual damage lias been sustained by the 
 plaintiff ; but if the covenant or promise be to 
 perform some act for the plaintiff's benefit 
 as well as to indemnify and save him harm- 
 less from the consequences of non-perfoi-m- 
 ance, the neglect to perform the act is a 
 breach of contract and will give an immedi- 
 ate right of action. Upon an undertaking 
 to pay a debt due a thu-d person, the plaintiff 
 may maintain an action without showing 
 that he has paid the debt: Stout v. Folger, 
 34r-71 ; Lyon v. Aiken, 70 . 
 
 As to bond of indemnity, see Bonds, 
 §§ 18-20. 
 
 677. A failnre to pay interest which is 
 by contract payable annually constitutes a 
 breach of contract upon which action may 
 be brought to recover the interest due: 
 Hershey v. Hershey, 18-24. 
 
 578. Diligence in making: collection from 
 third person: Where, under contract, plaint- 
 iff was to be paid for his work by the city for 
 whom it was perfoi-med when the city col- 
 lected the cost of it from lot-owners, held, 
 that the city was bound to collect the assess- 
 ment within a reasonable time after the work 
 was done and pay the plaintiff, and a failure 
 BO to do would render the city liable to pay 
 the stipulated price. In such case, the burden 
 of proof of diligence would rest upon the 
 city : Morgan v. Dubuque, 28-575. 
 
 579. Commission for sale of re:il estate: 
 Where an agent for the sale of land seeks to 
 recover compensation for effecting a sale, 
 the completion of which has been defeated 
 
 by the act of the owner in refusing to per- 
 form the conti-act as made, he must show 
 something more than a mere offer to pur- 
 chase on the part of the proposed purchaser. 
 It must appear that such proposed purchaser 
 was pecuniarily responsible and in a condi- 
 tion to comply with the terms of sale or to 
 respond to an action for damages for failure 
 to perform the contract, if completed : Iselin 
 V. Griffith, 63-668. 
 
 580. Illegal contract: A contract by an 
 attorney to turn over to another, buying the 
 good-will of his business, all notes in his 
 hands for collection is illegal, and damages 
 for its breach cannot be enforced : Smalley v. 
 Greene, 52-241. 
 
 XII. Rescission; modification; sub- 
 stitution; KELEASE. 
 
 a. Rescission. 
 
 581. Facts authorizing must be shown: 
 
 Under a contract providing that one party 
 might rescind whenever he became dissatis- 
 fied with the manner in which a certain part 
 of it was performed by the other party, held, 
 that in order to justify a rescission, he should 
 prove the existence of the facts upon which he 
 relied in so acting: Barr v. Van Duyn, 45- 
 238. 
 
 582. Contract in favor of third person 
 before aeceplanee: A contract between two 
 persons for the benefit of a third may be can- 
 celed or rescinded by agreement between 
 tlie parties making it at any time before the 
 third person has become aware of, or has ac- 
 cepted, such contract: Gilbert v. Sanderson, 
 56-349. 
 
 583. False re)>resentations as to the solv- 
 ency of a party will not be a ground for re- 
 scinding a transaction involving a transfer of 
 the notes of such party, if it appears that the 
 maker of such notes was solvent at their 
 maturity, and subsequent to their transfer: 
 Stanley v. Irwin, 34-418. 
 
 5S4. Fraud: The party who has been de- 
 frauded in a contract is not bound to rescind. 
 He may stand to the bargain and recover 
 damages for the fraud without offering to 
 rescind or giving notice of the fraud : Coe v. 
 lAndley, 82-437. 
 
 585. Mistake: Where it appeared that the 
 party was induced to enter into the contract 
 
CONTRACTS, XII, a. 
 
 333 
 
 Bescission. 
 
 to perform certain labor upon the considera- 
 tion that work of a particular kind was to be 
 included in the labor to be performed, held, 
 that the fact that such particular work was 
 not included was ground for rescission of the 
 contract : Edmonds v. Cochran, 13-488. 
 
 686. Partial breach: Rescission of a divis- 
 ible contract will not be allowed for a breach 
 thereof unless such breach goes to the whole 
 of the consideration : Myer v. Wheeler, 65-390. 
 
 587. Part performance: A party to a con- 
 tract may not rescind for non-performance, 
 if the failure of the other party be but par- 
 tial, leaving a distinct part as a subsisting 
 and executed consideration, and leaving also 
 to the party his action for damages for the 
 part not performed, but he must do all that 
 the contract obliges him to do and seek his 
 remedy in damages : Burge v. Cedar Rapids 
 & M. R. R. Co., 33-101. 
 
 588. Where plaintiflE had partially per- 
 formed a contract on his part by delivering 
 a portion of the property agreed to be deliv- 
 ered, and offered to perform the balance 
 upon defendant's complying with his part of 
 the contract, which defendant failed to do, 
 held, that plaintiflE might thereupon treat the 
 contract as rescinded, demand back the por- 
 tion of the property delivered, and if not re- 
 turned, recover its value: Sayden v. Rey- 
 nolds, 54-157. 
 
 589. Where an order is given to an in- 
 dividual for an article to be manufactured 
 under certain terms constituting a contract, 
 and such order is filled by the successor in 
 business of such individual, the order and 
 conditions become binding as a contract upon 
 the successor filling the order: Cooh Mfg. 
 Co. V. Randall, 63-344. 
 
 590. Reasonable time for performance: 
 Where plaintiff was employed as express- 
 messenger and baggage agent, and after- 
 wards discharged before the completion of 
 the term of service contracted for, held, that 
 the employer was bound to give the em- 
 ployee reasonable time and opportunity to 
 become familiar with the business before dis- 
 charging him for incompetency, the occupa- 
 tion not being one in which it was usual to 
 serve an apprenticeship: Moore v. Chicago, 
 B. & Q. R. Co., 65-505. 
 
 591. Duty to refund: Where a contract is 
 rescinded by mutual agreement, the law im- 
 
 plies, in the absence of an agreement to thu 
 contrary, a promise on the part of one [.arty 
 to refund to the other the money or the value 
 of the property i-eceived upon such contract. 
 But an agreement to the contrary need not 
 necessarily be an express one in order to 
 change the rule: Nason v. Woodward, 16- 
 316. 
 
 592. In the absence of an agreement to the 
 contrary, where a contract is rescinded and 
 the delivery of personal property thereunder 
 is waived, money advanced in paj'ment for 
 such property must be refunded : Redman v. 
 Malvin, 33-296. 
 
 593. Partial failure of consideration; 
 tendering back consideration received: 
 Where a contract is severable and there is a 
 partial failure of consideration on the part of 
 one party, the other party may tender back 
 the property received under that part of the 
 contract, and rescind the contract to that ex- 
 tent ; but, if the contract is not severable, in 
 order to rescind, the other party must be 
 placed in statu quo: Allen v. Pegram, 16-163. 
 
 594. Putting opposite party in statu quo : 
 When there has been partial performance of 
 a contract, a party cannot rescind without 
 putting the opposite party in the position he 
 was in at the time the contract was made : 
 Moore v. Bare, 11-198. 
 
 595. Equity will not decree the rescission 
 of a contract at the suit of one party thereto 
 on the ground that the other has failed to 
 fulfill his part of the engagement, if the 
 other party cannot be placed in statu quo, 
 and injury would result to him by the rescis- 
 sion: Stringer v. Keokuk, Mt. P. & N. R. 
 Co., 59-377. 
 
 596. When it is in the power of either 
 party to a contract to rescind it or declare it 
 void, if be does so, he should restore the 
 other party to his former rights by the re- 
 payment of money, if money has been paid, 
 or by the return of property, if property has 
 been delivered: Penny v. Cameron, 1 G. Gr., 
 380. 
 
 697. So, where a part of the consideration 
 in property had been paid for a conveyance 
 which the other party refused to execute, 
 held, that upon such refusal action might be 
 brought against him for the recovery of the 
 consideration without previous demand : 
 Ibid. 
 
oj4 
 
 CONTRACTS, XII, a, b, 
 
 Rescission. — Modification. 
 
 598. Where an agreement to rescind a con- 
 tract was entered into and never carried out, 
 and was finally abrogated by one of the par- 
 ties, held, that it was the duty of such party 
 to place the other in statu quo: Wood v. 
 Smith, 51-156. 
 
 599. Where it was stipulated in the sale of 
 a machine that, in case it did not correspond 
 w^ith the warranties, or was not made to corre- 
 spond thereto on notice, the purchaser might 
 return it to the seller, and the latter would 
 then furnish a perfect machine in its place or 
 return the purchase money and notes, held, 
 that an unconditional delivery to the seller 
 after the latter had, upon notice, failed to 
 make the machine work satisfactorily, con- 
 stituted a rescission of the contract, although 
 the vendee afterwards demanded the return 
 of the purchase money and notes without 
 proposing to allow to the seller the election 
 secured him by the contract, the right to 
 make such election being one which the seller 
 must assert for himself : Davis' Sons v. But- 
 rick, 68-91. 
 
 600. A contract cannot be rescinded by 
 one party thereto, unless both can be restored 
 to the condition they were in before the con- 
 tract was made, unless the contract was ob- 
 tained by fraud : Hendrickson v. Hendrick- 
 son, 51-68. 
 
 601. Where there was a contract for ex- 
 change of land, and one party, in order to ob- 
 tain the land which he was to convey, had 
 paid money to a third party, but finally 
 failed to carry out his contract, held, that it 
 was not necessary that the other party should 
 pay to him the money so expended before re- 
 scinding the contract : Benson v. Cowell, 52- 
 137. 
 
 602. Kepayment of interest: It is not nec- 
 essary, where a party desires to rescind a 
 contract by the repayment of money paid 
 thereon, that he also pay interest on the 
 amount: Tbid. 
 
 603. Notice: A party to a contract author- 
 ized to rescind it is required to make known 
 to the other his action upon exercising his 
 power to terminate it. So held in case of a 
 policy of insurance which the company 
 might, in a certain event, rescind at its op- 
 tion: Supple V. Iowa State Ins. Co., 58-39. 
 
 604. Reasonable time: The rule is that 
 the right of rescission on the ground of fraud 
 
 or mistake must be exercised at the time of 
 the discovery of the fraud or mistake, or 
 within a reasonable time thereafter :' Rawson 
 V. Harger, 48-269. 
 
 605. Laches: Where plaintiff delayed for 
 two or three years after discovering the al- 
 leged fraud in a; contract to give notice of 
 any intention to rescind it, but on the con- 
 trary recognized its validity by negotiations 
 for his release therefrom, held, that not hav- 
 ing announced his intention to rescind within 
 a reasonable time, his right to rescind, if 
 any, was waived: Evans v. Montgomery, 
 50-325. 
 
 Further as to rescission of contracts, see 
 Equity, II, a. 
 
 As to rescission of contracts for the sale of 
 land, see Vendors, IV. 
 
 As to rescission of contracts of sales, see 
 Saies, III. 
 
 b. Modification. 
 
 60G. By mutual consent: A party having 
 the authority to contract can consent to a 
 variation of the terms and conditions of a 
 contract previously made: Slusser v. Bur- 
 lington, 43-378. 
 
 607. Consiileration: A party alleging a 
 subsequent parol modification of a wi'itten 
 contract must show that such subsequent 
 verbal contract was entered into, supported 
 by a consideration. A consideration cannot 
 be presumed but must be proved : Wheeler 
 v. Baker, 59-86. 
 
 608. Proof that a party entitled to monthly- 
 payments under a written contract had ac- 
 cepted a less amount per month for a por- 
 tion of the time in full payment, held, not 
 sufficient to prove such subsequent modifica- 
 tion: Ihid. 
 
 609. Held, that a promise to pay uncondi- 
 tionally and immediately a certain sum in 
 amounts and to persons not specifically design 
 nated might be waived by one of the persons 
 entitled to share therein in consideration of a 
 promise to pay to him specifically a desig- 
 nated sum at a future time or on condition : 
 Grimes v. Simpson Centenary College, 48- 
 208. 
 
 610. Waiver of conditions: Where a con- 
 tract was entered into by certain parties to 
 secure advances upon certain conditions, and 
 
CONTRACTS, XII, c, d. 
 
 335 
 
 Substitution. — Release and discharge. 
 
 subsequently, and before tbe advances were 
 made, certain of such parties executed a 
 bond to indemnify the payee for any loss 
 which he might suffer by a breach of such 
 • • conditions, held, that as to the makers of 
 such bond it operated as a modification of 
 the previous contract and a waiver of its con- 
 ditions: First Nat. Bank v. SchKchting, 
 40-51. 
 
 611. Parol eyidence ; burden of proof: 
 In attempting to enlarge a written contract 
 by parol evidence,, the burden is upon the 
 party seeking to establish such modification, 
 but he should not be required to do so by evi- 
 dence that is clear, satisfactory and conclu- 
 sive; a preponderance of evidence in his 
 favor is sufficient : Holt v. Brown, 63-319. 
 
 That parol evidence of a previous or a 
 contemporaneous agreement or understand- 
 ing is not admissible to vary the terms of a 
 written contract, see Evidence, II, 4. 
 
 c. Substitution f merger i novation. 
 
 612. Substitution: Where plaintiff was 
 . . asserting a claim against defendant and 
 
 another debtor as jointly liable as partners, 
 and defendant insisted that he and his co- 
 debtor were liable only for one-half each of 
 the indebtedness, and plaintiff accepted from 
 each time-notes for one-half, held, that this 
 was a substitution of a new contract and re- 
 leased defendant from any liability beyond 
 the one-half assumed by him : Drake v. Hill, 
 53-87. 
 
 613. Merger: The parties may, by agree- 
 ment, substitute an oral contract for a writ- 
 ten one, and such substitution will constitute 
 an abandonment of the written contract and 
 not a mere waiver of its terms : Aldrioh v. 
 Price, 57-151. 
 
 614. Where the parties by agreement en- 
 ter into a new contract as a compromise of 
 or as a substitution for a former, the new 
 contract being based upon a new considera- 
 tion, the right of action upon the original 
 contract is lost. It is not necessary for that 
 purpose that it appear that the new contract 
 has been performed. Any action brought 
 must be upon the new contract and not the 
 old one : Merry v. Allen, 39-335. 
 
 615. A confession of judgment given by 
 one member of a firm for a firm debt is a 
 
 merger of the contract debt and it cannot 
 become the subject of another action : North 
 V. Mudge, 13-496. 
 
 616. Novation: Where A. owes a debt to 
 B. and B. owes a debt to C, and it is mutu- 
 ally agreed between the three parties that A. 
 shall pay to C. the amount due to B., such 
 agreement will operate to discharge B.'s debt, 
 to C. to the extent of A.'s indebtedness to B., 
 although there is no special agreement for 
 discharge: Lester v. Bowman, S9-Q11; Foster 
 V. Paine, 63-85. 
 
 617. But such novation will not release a 
 mortgage given from B. to C. in security of 
 his indebtedness : Foster v. Paine, 63-85. 
 
 618. Where a railroad company recognizes 
 its liability to a subcontractor for construc- 
 tion work, and undertakes to pay the same 
 by accepted drafts, a subsequent settlement 
 with the principal contractors, and the can- 
 cellation of the contract, will not operate to 
 discharge its indebtedness to the subcon- 
 tractor. A judgment recovered on such drafts 
 will settle the question of liability, and,, 
 under a decree providing for the payment of 
 the indebtedness incurred in the construc- 
 tion of a portion of the road, it is immaterial 
 to whom the company was originally liable : 
 Ney V. Dubuque & S. C. R. Co., 20-347. 
 
 619. Extension of time: The giving of a 
 valid obligation payable in the future oper- 
 ates to suspend all right of action on the con- 
 sideration for which it is given until the 
 expiration of the time given, although the 
 obligation in itself is no payment: Chickasaw 
 County V. Pitcher, 36-593. 
 
 d. Jielease and dischm'ge. 
 
 As to Payment and Dischaege, in general,. 
 see that title. 
 
 620. By joint contractor: One of two joint 
 contractors can, upon consideration, execute 
 a valid release to the other party of claims 
 for damages arising out of the breach of such 
 contract : Stapleton v. King, 33-28. 
 
 621. Compromise: An agreement to dis- 
 miss an action expressly providing that it 
 shall be a bar to any and aU other suits and 
 in compromise and release of all claims and 
 demands of the plaintiff on account of such 
 cause of action, wLU constitute a defense to 
 any subsequent action thereon unless such- 
 

 CONVERSION — CONVEYANCES. I, a. 
 
 What constitutes conversion. — Execution and delivery. 
 
 agreement is in some way avoided, as by 
 Bhovcing that the party was not at the time 
 of executing the agreement in full possession 
 of his mental faculties, or had not knowledge 
 of its provisions, or that in some manner he 
 was imposed upon or deceived : Heironymus 
 V. Heironymus, 64-81. 
 
 CONTERSION. 
 
 1. What constitutes: It is not material, in 
 order to constitute conversion, whether the 
 defendant came into possession originally by 
 right or by wrong. Where the circumstances 
 of themselves do not amount to an actual 
 conversion, it will be incumbent upon the 
 plaintiff to give evidence of a demand and 
 refusal prior to the commencement of the 
 action. To exercise dominion over the prop- 
 ei'ty is, in law, a conversion, and an offer to 
 return the property at another place will not 
 bar the action : Cutter v. Fanning, 8-580. 
 
 2. Purchase of a note with notice of the 
 right of another thereto, and collection of 
 the amount due thereon, constitutes a con- 
 version : Allison v. King, 25-56. 
 
 3. Where a party holding a certificate of 
 deposit as collateral security surrendered it 
 and accepted a note and mortgage in lieu 
 thereof, held, that he was guilty of conver- 
 sion and liable for the nominal value of the 
 certificate surrendered: Oreenwald v. Met- 
 calf, 28-363. 
 
 4. Evidence: Conversion may be shown 
 either by direct proofs of the fact of conver- 
 sion, or by proof of demand and refusal, 
 without excuse being shown by defendant : 
 State V. Bryan, 40-379. 
 
 • Measure of damages, see Damages, II, f. 
 Further as to conversion, see references in 
 Index under that title. 
 
 CONTEYANCJES. 
 
 L Execution and delivery. 
 
 a. Competency of parties; grantor and 
 
 grantee. 
 
 b. Effect of fraud, mistake, undue in- 
 
 fluence, or duress. 
 
 c. Execution; date; filling blanks. , 
 
 d. Seal. 
 
 e. Delivery; escrow. 
 
 I. Execution and Delivery— continued. 
 
 f. MatiUcation. 
 
 g. Cancellation. 
 
 h. Illegality in execution. 
 n. Consideration. 
 III. Form, construction aijd effect. 
 
 a. Form. 
 
 b. Construction. 
 
 c. Conditions and limitations. 
 
 d. Effect. 
 rv. Description. 
 
 V. Covenants. 
 
 a. Object and effect, 
 
 b. Breach; remedies. 
 
 c. Measure of damages. 
 
 d. Covenants running with the land. 
 
 e. Who liable on covenants. 
 
 As to Acknowledgment, see that title. 
 
 As to recording, see Recording Acts. 
 
 As to what will constitute Notice, see that 
 title. 
 
 As to contracts to convey, see Vendors. 
 
 As to Specific Performance, see that 
 title. 
 
 As to conveyances in trust, see Trusts, 
 also Mortgages. 
 
 As to conveyances to public use, see Dedi- 
 cation. 
 
 As to conveyance of Homestead, see that 
 title. 
 
 As to the rule in Shelley's case, see Beal 
 Property, gg 10-13. 
 
 I. Execution and delivery. 
 
 a. Competency of parties; grantor and 
 grantee. 
 
 1. Belligerents: A conveyance. between 
 citizens of belligerent nations is void : Sill v. 
 Baker, 32-303. 
 
 2. So held as to a conveyance of land in 
 Iowa, made during the rebellion by a person 
 within a state in insurrection to a person in 
 a loyal state : Ibid. 
 
 3. Infants: Where an infant holds title in 
 trust and is compellable to convey, a voluntary 
 conveyance by him will bind him and cannot 
 be disaffirmed: Prouty v. Edgar, 6-353. 
 
 4. A conveyance by an infant is voidable 
 and not void. If founded on a valuable con- 
 sideration, it is a valid contract until regularly 
 avoided : Jenkins v. Jenkins, 12-195. 
 
CONVEYANCES, I, a. 
 
 337 
 
 Competency of parties ; grantor and grantee. 
 
 Further as to capacity of minors, see Con- 
 TEACTS, VI, a. 
 
 5. Disaflirmance by minor: A minor is 
 bound by iiis deed unless he disaffirms it 
 within a reasonable time after ho becomes of 
 age. (Code, § 2238): Weaver v. Carpenter, 
 42-343. 
 
 G. Where a person, many years after be- 
 coming of majority, claimed the riglit to 
 disaffirm, held, that he was not entitled to 
 disaffirm upon showing that the deed was 
 procured by fraud, diligence to discover the 
 fraud not being shown : Ibid. 
 
 7. That the grantee of a conveyance ex- 
 ecuted during minority remained insane 
 without lucid intervals for eight years after 
 obtaining majority, TieM sufficient to author- 
 ize an action to be brought after that tirhe by 
 his guardian, to set the same aside as being 
 without consideration: Gates v. Carpenter, 
 43-152. 
 
 8. That the projperty has passed into the 
 hands of an innocent purchaser will not pre- 
 vent disaffu-mance : Ibid. 
 
 9. Insanity: An executed conveyance for 
 value to a good faith purchaser will not be 
 set aside in equity on the ground of insanity 
 of which the purchaser had no notice, in 
 case he cannot be put in statu quo: Ashcraft 
 V. De Armond, 44-239 ; Abbott v, Creal, 56- 
 175 ; Alexander v. Haskins, 68-78. 
 
 10. But where the grantee had knowledge 
 of the insanity of the grantor, and the con- 
 sideration for the conveyance was less than 
 one-third the value of the land, and the 
 grantee had been in possession such length 
 of time that the rents and profits received 
 exceeded the amount paid, held, that the 
 conveyance should be set aside: Alexander 
 V. Hashins, 68-73. 
 
 11. Where it appeared that a conveyance 
 was made by a woman so affected by trouble 
 and distress of mind as to be i-educed to a 
 state approaching imbecility, and that the 
 price paid was so grossly inadequate as to 
 shock the conscience, a. reconveyance was 
 decreed, the rents received by grantee while 
 in possession being deemed equivalent to the 
 consideration paid : Perkins v. Scott, 33-237. 
 
 12. The deed of a person who is a mono- 
 
 maniac on certain subjects cannot be set 
 aside on account of such fact, where there 
 is no reason to believe that there was not 
 the full exercise of reason and judgment as 
 to its execution : Burgess v. Pollock, 53-373, 
 Further as to capacity of insane persons, 
 see CoNTfiACTS, VI, b. 
 
 13. Mental weakness: If the power to 
 contract exists, mere weakness of mind with- 
 out fraud or undue influence is not sufficient 
 to warrant the setting aside of a convey- 
 ance : Campbell v. Campbell, 51-713. 
 
 14. Married women : i A married woman 
 may incumber or convey real property owned 
 in her own separate right: Sanborn v. 
 Casady, 31-77. 
 
 15. The mortgage of a man-led woman 
 upon her separate property, to secure her 
 husband's debt, if executed for a valuable 
 consideration, would be binding: GreSn v, 
 Scranage, 19-461. 
 
 16. Previous to the present statutory pro- 
 vision (Code, § 2206) declaring that a con- 
 veyance, transfer or lien executed by either 
 husband or wife in favor of the other shall 
 be valid to the same extent as between other 
 persons, it was held that a conveyance from 
 wife to husband in connection with an agree- 
 ment to separate, for the relinquishment 
 of dower, would be upheld, if supported by 
 a consideration and free from fraud : Eob- 
 ertson v. Robertson, 35-350. 
 
 1 7. But it was also held that aside from 
 an agreement to separate, neither husband 
 nor wife had any interest in the property of 
 the other which could be the subject of con- 
 veyance between them : McKee v. Reynolds, 
 26-578. 
 
 18. And by statute (Code, § 3303), any 
 agreement between husband and wife, rela- 
 tive to any contingent interest of either in 
 the property of the other, is void : Linton v. 
 Crosby, 54-478. 
 
 19. The power of a married woman to ac- 
 quire by purchase, and contract with refer- 
 ence to real property, discussed and previous 
 cases cited : Shields v. Keys, 34r-298. 
 
 20. For the history of previous legislation 
 as to the power of a married woman to con- 
 vey, and the method of executing instru- 
 
 ^ Code, § 1935. A married woman may convey or incumber any real estate or interest therein belonging to her, 
 and may control the same, or contract with reference thereto, to the same extent and in the same manner as 
 other persons. 
 
 Vol. 1—33 
 
338 
 
 CONVEYANCES, I, a, b. 
 
 Grantor and grantee. — Effect of fraud, etc. 
 
 ments in such cases, see Simms v. Hervey, 
 19-273. 
 
 21. Where husband and wife agreed to sell 
 the wife's interest in certain real estate, after 
 which the husband alone executed, without 
 delivering, a deed thereto, and received pay- 
 ment of the consideration with the wife's 
 knowledge and consent, and she, after the 
 husband's death, voluntarily executed and de- 
 livered the deed, held, that the wife's title 
 was thereby divested : Parsley v. Hayes, 22-11. 
 
 22. Where the title is in the wife, and she 
 joins her husband in a warranty deed con- 
 veying it, the addition of a clause releasing 
 her right of dower will not limit the estate 
 conveyed by her to her dower interest : (?ra- 
 pengether v. Fejervary, 9-163. 
 
 23. A wife joining with her husband in a 
 conveyance of his property merely to relin- 
 quish her dower right does not become bound 
 by the covenants of such deed: Childs v. 
 McChesney, 20-431, 436; I^on v. Metcalf, 
 13-93. 
 
 24. And, therefore, an after-acquired title 
 of the wife does not inure to the grantee in 
 a previous deed of the husband without title, 
 in which deed the wife has simply joined to 
 relinquish dower: Childs v. McChesney, 20- 
 431; O'Neil v. Vanderburg, 25-104; Thomp- 
 son V. Merrill, 58-419; Edwards v. Daven- 
 port, 4 McCrary, 34. 
 
 As to relinquishment of dower, see Estates 
 OF Decedents, g§ 306-331. 
 
 25. Corporations: A limitation upon the 
 power to sell operates also as a limitation 
 upon the power to convey : Middleton Sav- 
 ings Bank v. Dubuque, 15-394. 
 
 26. By ofllcers of corporation: Where a 
 conveyance, duly authorized by the stock- 
 holders of a corporation, was made by ofiS- 
 cers not having authority to make convey- 
 ances, and acquiesced in for years by the 
 stockholders with knowledge thereof, field, 
 that such conveyance would not be set aside 
 in equity, whatever might be the rights of 
 the corporation in an action at law : Marshall 
 County High School Co. v. Iowa Evangelical 
 Synod, 28-360. 
 
 See further as to conveyances by corpora- 
 tions or their ofllcers, Cokpokations, §§ 76- 
 79. 
 
 27. Power of attorney: It is incumbent 
 upon a party offering in evidence a deed 
 
 purporting to be made by power of attorney, 
 to produce the authority by which the deed 
 was made, in order to lay the foundation for 
 the introduction of it as evidence : Hughes v. 
 Holliday, 3 G. Gr., 30. 
 
 28. The mere fact that a power of attorney 
 is, in itself, declared irrevocable does not 
 prohibit its revocation, nor render a sale by 
 the agent in his own interest and in fraud of 
 the title of his principal, valid : MacOregor v. 
 Gardner, 14-326. 
 
 A conveyance by attorney with intent to 
 defraud his principal may be set aside : See 
 Equitt, §121. 
 
 2J). Charitable uses: Grants, devises, or 
 dedications to public, pious or religious uses, 
 from the necessity of the case, form an ex- 
 ception to the rule applicable to private 
 grants, requiring a gi-antee as well as a 
 grantor. It is not necessary, in such a case, 
 that the beneficiary should at the time of the 
 grant be clothed with the power or capacity 
 of taking the benefit of the donors bounty, 
 but the intention of the donor will be exe- 
 cuted if this capacity ai-ises within a reason- 
 able time thereafter: Miller v. Chittenden, 
 2-315, 376. 
 
 30. Where the property is in the hands of 
 a trustee, and the object and purpose of the 
 grant look to a future grantee, it will be held 
 in abeyance ; and it is not necessary that the 
 trustee shall have the power to create the 
 beneficiary or proceed with the execution of 
 the trust before such creation in order to sus- 
 tain and uphold such a grant or devise : Ibid. 
 
 31. In aparticular case, where the convey- 
 ance was in trust for a church not yet organ- 
 ized, held, that the organization of a church 
 entitled to take the benefit of the trust within 
 seven years, was sufficient : Ibid. 
 
 And in general, see Trusts. 
 
 b. Effect offrmid, mistake., undue ifh- 
 f/uence, or duress. 
 
 32. Mistake; negligence: Where a wife 
 sought to avoid the effect of her signature to 
 a trust deed conveying the homestead on the 
 ground of misrepresentations, made to her by 
 her husband when he presented the deed to 
 her for signature, as to the property described 
 therein, held, that as between herself and an 
 innocent purchaser she could not take ad- 
 
CONVEYANCES, I, b. 
 
 339 
 
 Effect of fraud, mistake, undue influence or duress. 
 
 vantage of her own mistake or negligence, 
 but, in the absence of fraud, was presumed 
 to have acted voluntarily and with knowl- 
 edge of all the facts : McHenry v. Day, 13- 
 445. 
 
 As to correction of mistake, see Equity, 
 II, a. 
 
 33. Fraud: Where an uncle piocured a 
 conveyance of property from his nephew, 
 who was in the habit of looking to him for 
 counsel and advice, by means of the sugges- 
 tion that it was necessary to make such con- 
 veyance in order to prevent the property be- 
 ing taken by other parties claiming it as 
 heirs, held, that such conveyance could be set 
 aside : Williams v. Collins, 67-413. 
 
 34. In the facts of a particular case, held, 
 that the conveyance from a person after- 
 wards adjudicated of unsound mind was 
 obtained with knowledge of his condition 
 and with an intent to defraud him of his 
 property, and therefore should be set aside : 
 Seerleyv. Sater, 68-375. 
 
 35. In particular cases, held, that convey- 
 ances were void for fraud : Sully v. Wilson, 
 44-394 ; Harper v. Kissiok, 52-733. 
 
 As to conveyances in fraud of creditors, 
 see Feaudulent Conveyances. 
 
 3G. Undue influence: A conveyance, 
 made by an heir, for an inadequate considera- 
 tion, of all her interest in certain property, 
 without knowledge of the extent of such in- 
 terest, and to a step-brother, who, with her- 
 self, was a member of the family of a step- 
 mother with whom she resided, held, to be 
 made under undue influence, and therefore 
 voidable, although no fraudulent representa- 
 tions on the part of vendee were shown; 
 Davis V. Dunne, 46-684. 
 
 37. Where it appeared that the' grantee of 
 premises did not pay a consideration for the 
 property, and acquired such conveyance by 
 reason of the exercise of undue influence 
 over the grantor, who was a man of weak 
 intellect, by representations and promises, 
 which were false and made for the purpose 
 of playing upon the grantor's fears and in- 
 ducing him to make the conveyance, it 
 should be set aside : Oakey v. Ritchie, 69-69. 
 
 38. A conveyance made to a woman by 
 reason of the influence which she exercises 
 through unlawful cohabitation is made un- 
 der undue influence and she cannot derive 
 
 any benefit therefrom. In such case the bur- 
 den of proof is upon the grantee to show that 
 the transaction does not grow out of the con- 
 fidential relations arising from such conduct : 
 Leighton v. Orr, 44-679. 
 
 39. Influence obtained by immoral con- 
 duct and adulterous relations is regarded in 
 law as undue influence, and when such rela- 
 tions exist, the burden is upon the one claim- 
 ing under a conveyance executed by the 
 other party to the unlawful relation, to 
 show that it was not procured by undue in- 
 fluence. The unlawful influence will be pre- 
 sumed in the absence of proof of lawful 
 consideration : Hanna v. Wilcox, 53-547. 
 
 40. Evidence considered, and held not suf- 
 ficient to show such weakness of intellect on 
 the part of grantor and undue influence over 
 him by others as to render a conveyance 
 by him invalid: Marmon v. Marmon, 47- 
 131 ; Jones v. Farris. 70 . 
 
 41. The fact that a conveyance in trust 
 was executed at the urgent solicitation of 
 relatives, held not to render it void as being 
 executed under undue influence, where the 
 influence was exercised wholly with a view 
 to the best interest of the grantor : Riddle v. 
 Cutter, 49-547. 
 
 42. Where a conveyance was executed by 
 a father to his children just before his re- 
 marriage, and it appeared that it was done 
 with great reluctance and as the result of 
 persistent endeavor on the part of such 
 children, but it d^d not appear that he was 
 not in the possession of his powers and able 
 to control his own affairs, and it further ap- 
 peared that he took legal advice and was 
 told that he was under no obligation to make 
 a conveyance, held, there was no evidence of 
 undue influence or duress such as to render 
 the conveyance invalid : Hamilton v. Smith, 
 57-15. 
 
 Further as to undue influence, see Con- 
 TEACTS, §§ 137, 138. 
 
 43. Duress: A deed obtained by duress is 
 not only voidable but void, as there is no 
 consent: Arnold v. Qrimes, 3-1. 
 
 44. A mortgage executed by a wife from 
 fear excited by threats, made to her by the 
 mortgagee, of an illegal criminal prosecution 
 against her husband, is invalid ; otherwise, if 
 the criminal accusation was well founded, 
 or, upon reasonable grounds, believed to be 
 
340 
 
 CONVEYANCES, I, c. 
 
 Execution. 
 
 80 by the mortgagee: Green v. Scranage, 
 19-461. 
 
 46. Plaintiff's husband being guilty of the 
 larceny of goods from defendants, some of 
 which were used towards improving the 
 homestead, as a means of securing his im- 
 munity from punishment and saving herself 
 and children from disgrace, plaintiff exe- 
 cuted to the defendants a conveyance of the 
 homestead; held, that the conveyance was 
 obtained under such circumstances of oppres- 
 sion as to preclude the idea of a free and 
 voluntary act, but it being apparent that 
 plaintiff was willing to secure to defendants 
 whatever was due them by reason of the lar- 
 ceny of her husband, it was held that de- 
 fendants might keep the property and pay 
 her the value of it above their due, or she 
 might take the pTopeii;y by paying them the 
 amount due : Gohegan v. Leach, 24-509. 
 
 Further as to duress, see Contracts, §§ 139- 
 144. 
 
 c. Execution. 
 
 46. Separate instruments which are ex- 
 ecuted as parts of the same transaction are to 
 be taken together, although they are not 
 contemporaneous in point of time, and parol 
 evidence is admissible to show that the in- 
 strument subsequently executed is made in 
 pursuance of an arrangement entered into 
 at the time of the execution of the previous 
 conveyance : Clapp v. Forster, 67-49. 
 
 47. By married TFomen: Since the enact- 
 ment of the Code of '51, conveyances by mai'- 
 ried women are to be executed as in other 
 cases, and acknowledgment is not necessary 
 to their validity : Simms v. Hervey, 19-373. 
 
 48. Evidence of execution: Where the 
 evidence as to the execution of a deed 
 claimed to be lost was conflicting, held, that 
 the circumstances were such as to support 
 the party alleging its execution : Cameron v. 
 Hovey, 38-598. 
 
 As to denial of signature of written instru- 
 ment, see Pleading, V, d. 
 
 49. Execution in another state: Under 
 Eev. Stat, of '43, a conveyance executed 
 in accordance with the laws of the state 
 where executed was valid in this state iCady 
 V. Eighmey, 54-615. 
 
 50. The presumption as to the date of 
 execution of a conveyance, in the absence of 
 
 evidence as to the true time, is that it was 
 executed as of the date of the instrument, 
 but this presumption may be rebutted by 
 evidence as to when in fact it was executed. 
 To overcome the presumption in favor of the 
 date, and prove that it was made at a time 
 diffeient from that at which it purports to 
 have been executed, when the rights of tliird 
 parties are involved, the evidence should be 
 clear and satisfactory: Vance v. Anderson, 
 89^26. 
 
 51. An unacknowledged deed made to a 
 minor by his father and produced from the 
 possession of his grandfather, who was his 
 guardian, without other proof of the time of 
 execution than the date given in the deed, 
 held not sufiScient to show title in the minor 
 so as to enable him to redeem from a tax sale 
 made subsequently to the date of the deed ; 
 Walker v. Sargent, 47-448. 
 
 52. The presumption of law, there being 
 nothing in the particular case to repel or 
 rebut it, is that a deed was executed and de- 
 livered at its date and upon the consideration 
 recited therein, and this applies as against 
 creditors claiming under the grantor; cer- 
 tainly as against creditors not shown to be 
 such at the time of the deed: Savery v. 
 Browning, 18-346. 
 
 53. Acknowledgment as evidence of date: 
 The date of an acknowledgment will be ac- 
 cepted as that of the execution of an instru- 
 ment: Henry County v. Bradshaw, 80-855. 
 
 54. A strong presumption exists in favor 
 of the certificate of acknowledgment as indi- 
 cating the date of the execution of an instru- 
 ment: Birdv. Adams, 56-293. 
 
 55. In a particular case, held, that the date 
 of the certificate of acknowledgment should 
 prevail over oral evidence of loose and ran- 
 dom conversations and admissions in deter- 
 mining the date of the execution : Ihid. 
 
 56. Effect of blanks: Under the statute of 
 this state, as at common law, a grantor and 
 gTantee, and the thing to be granted, must 
 aU be described in a deed, and an instrument 
 in which any of these are wanting at delivery 
 is invalid : Simms v. Hervey, 19-273. 
 
 57. Blank as to name of grantee: Where 
 a wife signed with her husband a blank 
 mortgage which was delivered to the hus- 
 band, who inserted therein a description of 
 real estate owned by the wife, and then de- 
 
CONVEYANCES, I, c, d, e. 
 
 ?A1 
 
 Execution. — Seal. — Delivery. 
 
 livered the paper to a third party with in- 
 structions to negotiate it and insert the 
 name of the mortgagee when negotiated, 
 held, that the instrument ■ was not binding 
 upon the wife : Ibid. 
 
 58. Whether a grantor may empower his 
 agent by parol to fiU a material blank in a 
 conveyance otherwise duly executed, quosre: 
 Ibid. 
 
 59. Where it appeared that a conveyance 
 was executed and acknowledged in blank, 
 and filled up subsequent to the trial merely 
 for the purpose of making title to plaintiiiE in 
 the case on which to base an action, held, 
 that it was not receivable in evidence : Bying- 
 ton V. Oaks. 33-488. 
 
 60. A deed executed with a blank as to the 
 name of the grantee, which blank is after- 
 ward filled up without the consent of the 
 grantor, will not vest in the party whose 
 claim is thus asserted a legal title ; but if, by 
 the contract, the party whose name is in- 
 serted is entitled to the land, he has the 
 equitable title, which will prevail over any 
 subsequent purchaser with constructive no- 
 tice of such conveyance : Clark v. Allen, 84- 
 190. 
 
 61. PlaintifE and wife executed a deed to 
 defendant, leaving the space for the grantee's 
 name blank, because they did not know the 
 full name, and delivered it to him with au- 
 thority to insert his own name, which he did ; 
 held, that the deed was valid and complete, 
 whether it was sought to enforce or to avoid 
 it : Devin v. Himer, 39-297. 
 
 62. Where one sent a deed to his agent 
 with blanks left to be filled up, with full au- 
 thority to act for him and fill up the blanks 
 and deliver it, held, that when this was done 
 the deed was perfect, and it was not neces- 
 sary that the possession of the deed by the 
 grantee should be simultaneous with the as- 
 sent of the grantor. In such case the assent, 
 when given in person or by agent, imparts 
 validity to the deed : Owen v. Perry, 25-413. 
 
 63. Authority may be conferred by parol 
 in express terms to insert the name of the 
 grantee in a deed, perfect in all other re- 
 -spects, and it may also be implied from the 
 acts and conduct of the grantor, as between 
 him and the purchaser in good faith ; and the 
 fact that the agent authorized to fill the 
 blank caused it to be done by another will 
 
 not render the conveyance void : Swartz v. 
 Ballon, 47-188; McClainv. MaClain, 52^272. 
 
 64. In order that a deed executed in blank 
 shall operate under the law in Iowa as a con- 
 veyance of the property described in it, the 
 blank must be filled by the party authorized 
 to fill it, and this must be done before or at 
 the time of the delivery of the deed to the 
 grantee ■ named : Allen v. Withrow, 110 U. 
 S., 119. 
 
 65. Insertion of description: Where an 
 instrument described the land as having been 
 bought from a certain person, and its location 
 with reference to the town, and directed the 
 insertion of the description by numbers as 
 soon as such description could be obtained, 
 held, that an insertion thereof, made by the 
 county recorder in pursuance of such author- 
 ity, was valid : Harshey v. Blackmarr, 20-161. 
 
 d. Seal. 
 
 66. Essential: Where an instrument of 
 conveyance, executed prior to the statute 
 abolishing the use of seals, was made with- 
 out seal, held, that it would neither consti- 
 tute a deed nor a covenant to stand seized to 
 the use of the grantee, and that a defective 
 conveyance would not be construed as such 
 a covenant unless it was sufficient in its 
 formal particulars to constitute a deed: 
 Switzer v. Knapps, 10-72. 
 
 67. But held, that such an instrument 
 would constitute a contract to convey : Ibid. 
 
 By statute the use of private seals is abol- 
 ished, and is no longer necessary in convey- 
 ances: See Code, § 3113; and Contracts, 
 §263. 
 
 e. Delivery. 
 
 68. Essential: The delivery of a deed is 
 essential to its validity, though the parties 
 may have complied with all other requisites : 
 Bay V. Griffith, 15-104; Smith v. Smith, 68- 
 608. 
 
 69. Intent to deliver: The question of de- 
 livery is always one of intention of the par- 
 ties. If the deed passes into the hands of 
 the grantee without an intention on the part 
 of the gi'antor that it shall become operative 
 and be used for the purposes intended, it is 
 not a delivery : Steel v. Miller, 40-402. 
 
 70. Where a deed was executed by all the 
 grantors but one, and left with the notary 
 
342 
 
 CONVEYANCES, I, e. 
 
 Delivery. 
 
 for him to sign, and the remaining grantor 
 refused to deliver it, held, that there was no 
 delivery as to any of the grantors : Overman 
 V. Kerr, 17-485. 
 
 71. Where a deed was not sufficiently de- 
 livered to be valid as a conveyance, held, 
 that it could not be treated as sufficiently de- 
 livered to operate as a completed contract : 
 IWd. 
 
 72. Presumption from possession: A 
 deed being in the custody of the grantee will 
 be presumed, in the absence of proof to the 
 contrary, to have been delivered and ac- 
 cepted : Wolverton v. Collins, 34-238 ; Craven 
 V. Winter, 38-471. 
 
 73. Where it appeared from the evidence 
 that all the parties were present at the execu- 
 tion of the conveyance; that immediately 
 thereafter it passed into the hands of the 
 grantees and remained in their possession or 
 control, and that at the time of the execution 
 it was the grantor's intention to deliver it, 
 held, that there was sufficient delivery: 
 Mercer v. Mercer, 39-557. 
 
 74. Where it appeared that deceased had 
 executed a deed to his children for certain 
 property, reserving to himself a life estate 
 therein, which was in the possession of 
 grantees at the time of the trial, held, that 
 failure to record the instrument was not 
 sufficient to overcome the presumption of 
 delivery arising from such possession : Blair 
 V. Howell, 68-619. 
 
 • 75. Presumption from recording': The 
 presumption is that a deed, beneficial to the 
 gi-antee, properly acknowledged and re- 
 corded, has been delivered, and the knowl- 
 edge and assent necessary to a valid delivery 
 will be presumed in the absence of a negative 
 showing : Robinson f. Gould, 26-89. 
 
 76. In such a case the burden of proof is 
 upon the party claiming non-delivery, to 
 clearly rebut the presumption arising from 
 the acknowledgment and recording: Craven 
 V. Winter, 38-471. 
 
 77. Therefore, held, that delivery of a deed 
 of voluntary conveyance to the wife of 
 grantee, who was a son of grantor, would be 
 presumed to be a deMvery to the son : Ibid. 
 
 75. While the recording of a conveyance 
 is not proof of its delivery, yet execution of 
 the instrument, and delivery to the recorder 
 in good faith and at the instance of the 
 
 grantee, may constitute a delivery ; but the 
 presumption of delivery would not arise 
 from the fact that the instrument is found 
 recorded, if the grantee has done no act rec- 
 ognizing its existence or validity: Foley v. 
 Howard, 8-56. 
 
 79. The fact that the grantor in a deed de- 
 livers it to the recorder for record may be a 
 circumstance, with others, tending to show 
 fraud, but does not, of itself, as matter of 
 law, make the deed fi-audulent or void: 
 Ward V. Wehman, 27-279. 
 
 80. Date of deliTery: An instrument be- 
 ing in custody of grantee is ^presumed to 
 have been delivered and accepted at the date 
 of its execution: Craven v. Winter, 38-471. 
 
 As to presumption of date of delivery from 
 acknowledgment and recording, see supra, 
 §§ 50-55. 
 
 81. Neglect to deliver: Where adeed was 
 executed before a notary iDublic, and the 
 grantee directed the notary to send it to the 
 county recorder for record, which was not 
 done, through the negligence of the notary, 
 held, that the delivery dated from the time 
 of the execution : Adams v. Ryan, 61-738. 
 
 82. Recording without grantee's knowl- 
 edge: Assent of the grantee to the convey- 
 ance will not relate back to the delivery of 
 the deed to the recorder for record where it 
 was without the knowledge of the grantee, 
 and without previous agreement to execute 
 a. conveyance of the property referred to; 
 Day V. Griffith, 15-104. 
 
 S3. Subsequent acceptance by the grantee 
 of an instrument delivered to the recorder 
 without his knowledge will not relate back 
 to sucli delivery so as to cut out the rights of 
 an intervening attaching creditor: Ibid. 
 
 84. Acceptance : Allegation of delivery of 
 a deed necessarily implies acceptance there- 
 of : Davenport v. Whisler, 46-287. 
 
 85. Acceptance presumed : Where a hus- 
 band procured a conveyance to be made by 
 a third person to his wife which was plainly 
 for her benefit, and had the deed delivered 
 to himself, held, that such delivery completed 
 the conveyance of the title to the wife. In 
 such case the acceptance of the grant by the 
 wife would be presumed : Parker v. Parker, 
 56-111. 
 
 86. Where a deed to a child is absolute in 
 form and beneficial in eflPect, and the grantor 
 
CONVEYANCES, I, e, f. 
 
 343 
 
 Delivery. — Ratification. 
 
 and father causes it to be recorded, there is 
 a sufficient delivery to the infant and the title 
 will pass thereby. In such case manual de- 
 livery and formal acceptance are not neces- 
 sary: Cecil V. Beaver, 28-241; Palmer v. 
 Palmer, 63-204. 
 
 87. Where the conveyance from the father 
 to the son was filed by the father for record, 
 and after being recorded was taken from the 
 recorder's office by the son, he being a minor, 
 held, that there was sufficient evidence of 
 delivery : Palmer v. Palmer, 62-204. 
 
 88. Where the assignment of a contract of 
 purchase of land was made to a minor under 
 two years of age, and afterwards, before he 
 was ten years of age, placed in the hands of 
 an attorney for the assignor, who was a par- 
 ent of the minor and appointed his guardian, 
 such attorney being employed to protect the 
 rights of the minor under the 'contract, held, 
 that there was sufficient delivery to the 
 minor to support the assignment : Byington 
 V. Moore, 62-470. 
 
 89. Gift to child : Held, that the evidence 
 in a particular case was not sufficient to es- 
 tablish the delivery of certain notes and 
 mortgages executed by plaintiff's father to 
 him as a gift : McKenna v. Kelso, 52-727. 
 
 90. Delivery after grantor's death: De- 
 livery to the grantee after the death of the 
 grantor is not sufficient to constitute a con- 
 veyance : Otto V. Doty, 61-23. 
 
 91. Implied delivery to child before 
 death : Where a father died, leaving among 
 his papers a deed of land duly executed in 
 form to one of his children, held, that the 
 law would give effect to the same if there 
 was anything indicating the intention of the 
 intestate that it should become effective, as 
 for instance the conveying to other children 
 of an equal portion of his real estate, and 
 that a court of equity would, in such case, 
 declare the deed valid in order to effectuate 
 justice. A delivery will be implied or not, 
 according to the intent of the grantor and 
 the surrounding circumstances of the caser 
 Stoiv V. Miller, 16-460. 
 
 92. W^here one who has the mental power 
 to alter his intention, and the physical power 
 to destroy a deed in his possession, dies with- 
 out doing either, and it appears that he 
 manifested an unequivocal intention within 
 a very short time of his death tj have this 
 
 deed operate as a disposition of his property, 
 it will be given effect without formal de- 
 livery : Newton v. Bealer, 41-334. 
 
 93. Escrow: The mere fact that a deed 
 properly executed is, in pursuance of an 
 agreement to sell, placed in the hands of a 
 third person to hold until the purchase money 
 is paid, does not of itself constitute delivery 
 and entitle the purchaser to possession 
 thereof on payment of the money. There 
 must be some distinct word or act of the 
 grantor, independent of the original agree- 
 ment, showing an intention thereby to part 
 with control of the deed and lodge it in the 
 hands of a third person, subject to the 
 grantee's control upon performing the agree- 
 ment on his part: Logsdon v. Newton, 54- 
 448. 
 
 94. An innocent purchaser from a grantee 
 in possession under a deed held as an escrow 
 and improperly delivered to the grantee 
 will be protected, it appearing that the 
 original grantor had knowledge of the de- 
 livery of the escrow to the gi-antee and 
 made no effort to deprive him of the posses- 
 sion : Haven v. Kramer, 41-382. 
 
 f. Ratification. 
 
 95. What sufficient: A recognition which 
 shall have the effect of making valid a deed 
 which, without such ratification, would be 
 ineffectual to pass the title as against the 
 party or subsequent incumbrancers, should 
 be clear and express, or be implied from cir- 
 cumstances equally clear and undisputed: 
 Haynes v. Seachrest, 13-455. 
 
 96. The ratification by a grantee of the un- 
 authorized acts of an agent in accepting a 
 conveyance of real estate in payment of a 
 debt, when made before any liens in favor of 
 other creditors attach, renders the convey- 
 ance complete and valid : Lampson v. Arnold, 
 19-479. 
 
 97. In case of conveyance by agent: Fail- 
 ure to object, with knowledge of the execu- 
 tion of a conveyance by an agent claiming 
 the right to convey, will constitute a ratifica- 
 tion of the conveyance : Alexander v. Jones, 
 64-207. 
 
 98. In a particular case, held, that the 
 grantor in a conveyance had, by his conduct, 
 bound himself by a ratification of the act of 
 
34i 
 
 CONVEYANCES, I, g. h; 11. 
 
 Cancellation. — Illegality in execution. — Consideration. 
 
 his agent in making the same: Burdicic v. 
 Seymour, 39-452. 
 
 99. Where deeds were taken by a gi-antee 
 from the agent of the grantor under a claim 
 that the contract under which they were to 
 be delivered was different from that stated 
 by the agent, and with the agreement that if 
 the grantor did not approve of the contract 
 as stated by the grantee the deeds would be 
 returned, and after being notified that the 
 grantor did not agree to the grantee's version 
 of the contract, the grantee failed to return 
 the deeds but put them on record, held, that 
 lie thereby ratified the contract and became 
 bound: Meredith v. Callanan, 33-590. 
 
 g. Cancellation. 
 
 100. By destruction before delivery: 
 
 Where a father makes a voluntary convey- 
 ance in form to a minor chUd, retaining the 
 possession of the instrument, it is competent 
 for him, at any time before actual delivery to 
 the child or to some one for the use of the 
 child, to destroy the deed or make any otlier 
 disposition of the property: Stow v. Miller, 
 16-460. 
 
 101. Redelivery and cancellation: The 
 cancellation of a deed does not revest prop- 
 erty which has passed under it by a trans- 
 mutation of possession; but where at the 
 time a conveyance was executed a portion of 
 the purchase money remained unpaid, and 
 the conveyance, not being put on record, was 
 afterwards surrendered by the grantee by 
 agreement with the grantoi', an equivalent 
 of the purchase money received by the 
 grantor being returned, held, that the grantee 
 had thereafter nothing but the naked legal 
 title, and that a judgment creditor levying 
 thereon and buying in the property at a sale 
 under such levy, acquired no title as against 
 the original grantor holding the equitable 
 title : Blaney v. Hanks, 14-400. 
 
 As to rescission for fraud or mistake, see 
 Equity, II, a. 
 
 h. Illegality in execution. 
 
 102. Failure to stamp: A deed of convey- 
 ance without a revenue stamp such as was 
 required by United States revenue law, held, 
 inadmissible as evidence to prove title; 
 Barney v. Ivins, 23-163. 
 
 103. When it was proposed to prove, in an 
 action for the purchase money under a con- 
 tract to convey, that the vendor tendered the 
 vendee a proper deed, and that several rev- 
 enue stamps were inclosed therewith which 
 the vendor was to affix and cancel if the 
 vendee would accept the deed, held, that the 
 deed was receivable in evidence without be- 
 ing stamped as required by the revenue laws : 
 Harker v. Cochrane, 36-390. 
 
 104. Swamp lands: Under the statute 
 (Rev., § 959) providing that no swamp lands 
 shall be sold at less than $1.25 per acre, 
 held, that a conveyance for a gross sum of 
 all the swamp land owned by the county and 
 not conveyed or disposed of, it being con- 
 ceded that the amount of such land exceeded 
 the number of acres which could properly be 
 conveyed for the sum named, was void: 
 Savery v. Moore, 61-505. 
 
 105. The covenants contained in a deed 
 made by a county and conveying certain 
 swamp lands cannot have the effect of mak- 
 ing valid the deed itself, nor the contract 
 evidenced thereby, nor give the deed itself 
 any force by way of estoppel, where the con- 
 tract itself is forbidden by statute ; and the 
 fact that the disability of the county is after- 
 wards removed by rejseal of the statute for- 
 bidding the contract, and the title to the 
 lands contracted for (to which the county 
 had had no title), is perfected in the county, 
 will not vest the after-acquii-ed title in the 
 grantee: Robinson v. Bailey, 26 Fed. Rep., 
 219. 
 
 II. CONSIDEEATION. 
 
 106. Stipulation may be: A stipulation 
 contained in a deed will be considered as a 
 part of the consideration for the conveyance : 
 Hull V. Chicago, B. & P. R. Co., 65-713. 
 
 107. Presumption: A deed is sufficient 
 prima facie evidence of a good consideration, 
 and throws the burden of proof upon the op- 
 posite party to impeach it on that ground : 
 Carson v. Foley, 1-524 ; Wolverton v. Collins, 
 34^238. 
 
 108. Parol evidence: While a deed is 
 prima facie evidence of the consideration 
 paid, yet for any purpose short of affecting 
 the title, the consideration clause is not con- 
 clusive that the money has been paid, and is 
 only prima facie evidence ■ of the amount, 
 
CONVEYANCES, II. 
 
 345 
 
 Consideration. 
 
 which may by parol proof be shown to be 
 greater or less than the amount mentioned in 
 the deed : Trayer v. Eeeder, 45-372. 
 
 109. Tlie consideration of a deed, when it is 
 itself the contract between the parties, may 
 be shown to be different from that expressed 
 in it : Puttman v. Haltey, 24-425. 
 
 110. The clause in a deed acknowledging 
 the receipt of a sum of money as considera- 
 tion is open to explanation by parol proof : 
 Swafford v. Whipple, 3 G. Gr., 361. 
 
 111. A variance between the allegations 
 and the proof as to the consideration will not 
 be fatal. The sum named in the deed is not 
 conclusive : Jones v. Smith, 6-229. 
 
 112. Tlie fact that the consideration named 
 in the deed is greater than that actually paid 
 is not sufScient of itself to set the sale aside : 
 Culbertson v. Luckey, 13-13. 
 
 113. In an action upon a warranty in a 
 deed it is competent to show that the consid- 
 eration was greater than the amount named 
 in the deed : Harper v. Perry, 38-57 ; Law- 
 ton V. Buckingham, 15-32. 
 
 114. Parol evidence as to consideration 
 not allowed to defeat the deed: "While for 
 some purposes the consideration of the con- 
 veyance may be shown to be different from 
 that expressed, the rule is that this cannot 
 be allowed for the purpose of avoiding the 
 deed or varying its effect : Dunbar v. Stiek- 
 kr, 45-384. 
 
 115. The grantor, having acknowledged 
 the consideration of the deed to be paid, can- 
 not be permitted to contradict that fact by 
 proof, so as to avoid his own solemn act, un- 
 less by competent proof of fraud : Rynear v. 
 NeiUn,3G. Gr., 310. 
 
 116. It seems that parol evidence is ad- 
 missible to prove that the real consideration 
 is other than that stated in the deed, but 
 as to whether parol evidence is admissible 
 to contradict the deed by showing a want 
 of consideration, quaere: Day v. Lown, 51- 
 364. 
 
 Further as to parol evidence of considera- 
 tion in a written instrument, see Evidence, 
 g§ 742-749. 
 
 117. Burden of proof: As a conveyance 
 imports a consideration, the burden of proof 
 is upon the party denying the consideration 
 to establish such denial : Mansfield v. Wat- 
 son, 2-111. 
 
 Recitals of tlie deed: The recitals of the 
 deed are not evidence of the payment of 
 consideration as against one not a party to 
 the deed, and the grantee claiming as a pur- 
 chaser for valuable consideration without 
 notice of prior unrecorded instruments has 
 the burden of proving by other evidence 
 tlie payment of a consideration: See Ke- 
 coRDiNG Acts, §§ 103-109. 
 
 118. Consideration payable at option of 
 grantor : A conveyance in consideration of 
 an agreement to pay specified sums at spec- 
 ified times if demanded, held not to be void- 
 able as being voluntary and improvident : 
 Dunbar i\ Stickler, 45-384. 
 
 119. Agreement to support as considera- 
 tion : Where no interests of creditors are in- 
 volved, the owner of property may convey 
 it in consideration of future support, if done 
 in good faith and without fraud : Dubuque 
 County V. Reynolds, 41-454. 
 
 120. A conveyance in a certain case by a 
 father to his son, in consideration of his own 
 support, etc., held not an unreasonable con- 
 tract under the expectancy of life of the 
 father at the time and other circumstances : 
 Johnson v. Johnson, 53-586. 
 
 121. Where a mother resides with her 
 daughter without any express agreement to 
 compensate such daughter for such care and 
 support, there is no moral obligation upon 
 the mother to make such compensation, 
 which wDl support a conveyance voluntarily 
 made to such daughter but not perfectly 
 executed : Else v. Kennedy, 67-376. 
 
 122. Love and aifection : A consideration 
 of love and affection is sufficient to support 
 a conveyance of an inheritable estate : Pier- 
 son V. Armstrong, 1-382. 
 
 123. A conveyance made in consideration 
 of blood, or natural love and affection, is 
 good as between the parties, and all others 
 except subsequent purchasers without notice 
 and creditors : Mercer v. Mercer, 29-557. 
 
 124. So held as to a deed from husband to 
 wife : Burgess v. Pollock, 53-273. 
 
 125. A voluntary executory contract be- 
 tween parent and child will not be enforced 
 in a contest between one child and other 
 children of the same ancestor, though it will 
 be enforced against the party contracting; 
 but where the contract is executed, as in the 
 case of a conveyance, it wiU not be disturbed 
 
346 
 
 CONVEYANCES, U. 
 
 Consideration. 
 
 for want of valuable consideration: Mercer 
 V. Mercer, 29-557. 
 
 126. In an action to set aside plaintiff's con- 
 veyance for the reason that it was made in 
 consideration of love and afiEection on repre- 
 sentations which were untrue, etc. , held, that 
 under the circumstances it appeared that the 
 consideration was in fact the settlement of 
 the rights of parties in a dispute and not for 
 love and affection : Bostwick v. Bostwick, 52- 
 721. 
 
 127. A release by a father of all his interest 
 as heir in the estate of a deceased son, made to 
 the decedent's widow, held sufficient to con- 
 vey the interest of the grantor in the real 
 property of decedent although there was no 
 pecuniary consideration for such conveyance, 
 relationship of the parties being a sufficient 
 consideration: Thorntonv. Mulquinne,12-54:Q. 
 
 Further as to fraudulent and voluntary 
 conveyances, see Fraudulent Convbtahces. 
 
 128. Grift to child: As between the parties 
 a conveyance by a father to a child will be 
 held as being founded upon a meritorious 
 consideration ; but an executory agreement 
 to convey existing only in parol, unassisted 
 by the fact of possession and permanent im- 
 provements, will not be enforced by a court 
 of equity : Moore v. Pierson, 6-279. 
 
 129. But where a promise is clearly, defi- 
 nitely and conclusively established, and the 
 child upon faith of it has entered into posses- 
 sion and made valuable improvements, the 
 agreement will be enforced : Ibid. 
 
 Further as to Gifts, see that title. 
 
 130. Advancement by a parent to a child 
 is a good consideration and will support a 
 contract except as against other children, and 
 creditors and subsequent purchasers without 
 notice: Patterson v. Mills, 69-755. 
 
 131. The presumption in the case of con- 
 veyance to a child without consideration is 
 that it is intended as an advancement; and 
 where the agreement for an advancement 
 had not been carried out, and the child took 
 a distributive share of the estate without re- 
 gard to such advancement, held, that he 
 could not retain the property claimed to have 
 been given to him by the parent, although 
 he had made improvements thereon : McMor- 
 hill V. McMahill, 69-115. 
 
 132. An advancement is a gift, by antici- 
 pation, from a parent to a child, of a whole 
 
 or a part of what it is supposed such child 
 would inheiit upon the death of the parent. 
 If the child accepts and appropriates a full 
 distributive share of the balance of the estate 
 without regard to the advancement, equity 
 wiU not enforce the agreement of the parent 
 to make such advancement : Ihid. 
 
 Further as to advancements, see Estates 
 OF Decedents, g§ 268-272, and Gifts, § 7. 
 
 133. Failure of consideration: Failure to 
 pay the consideration upon which a convey- 
 ance is made does not render the conveyance 
 void but furnishes grantor the right of ac- 
 tion for the stipulated consideration : Lake v. 
 Gray, 35-459. 
 
 134. Where a deed was made in consider- 
 ation of a promise to deliver certain fruit 
 trees, held, that the promise being a sufficient 
 consideration, the title passed to the grantee 
 and throligli him to his grantees, although 
 the consideration was never paid and the 
 subsequent grantees of the purchaser knew 
 that fact and that the purchaser was worth- 
 less : Gray v. Lake, 48-505. 
 
 135. Unlawful consideration: The fact 
 that a voluntary conveyance of property is 
 made to a woman with whom grantor is un- 
 lawfully cohabiting will not be considered 
 as based upon such cohabitation as a consid- 
 eration unless such fact is made to appear: 
 Leighton v. Git, 44-679. 
 
 136. Want of consideration: A written 
 instrument of the same date as of the con- 
 veyance but in fact subsequently executed, 
 and purporting to render the conveyance 
 conditional, held not binding for want of 
 consideration ; but held also, that the circum- 
 stances showed that the original conveyance 
 was in fact a mortgage and might he fore- 
 closed as such and the consideration named 
 therein recovered: Ingalls v. Atwood, 53- 
 283. 
 
 Further as to construing absolute deeds aa 
 mortgages, see Mortgages, II. 
 
 137. Inadequacy of consideration in a 
 particular case, held not sufiBlcient to war- 
 rant the setting aside of the conveyance: 
 Audubon County v. American Emigration 
 Co., 40-460. 
 
 13S. Setting' aside conveyance: Where an 
 action to set aside for want of consideration 
 a conveyance executed during minority of 
 grantor and while he was insane was brought 
 
CONVEYANCES, III, a. 
 
 ;34T 
 
 Form. 
 
 eight yeaxs after majority was attained, no 
 lucid interval having intervened, held, that 
 the action was not too late: Oates v. Car- 
 penter, 4S-153. 
 
 139. Recovery back of consideration: 
 "Where a conveyance is rescinded in an action 
 by the grantor, the resulting obligation of 
 such grantor to repay the consideration inures 
 to the benefit of a subsequent grantee : Deere 
 V. Young, 39-588. 
 
 Purchaser for valuable consideration: 
 As to who is deemed a purchaser for valu- 
 able consideration, and within the protection 
 of the recording laws, see Recording Acts, 
 III, b. 
 
 III. FOEM, CONSTEUCTIOIS- AND EFFECT. 
 
 a. Form. 
 
 140. Not material : It is not essential that 
 a deed of conveyance should follow any 
 exact or prescribed form of words. If the 
 intention to convey is unmistakably ex- 
 pressed, that intention will not be defeated 
 by the fact that the instrument also partakes 
 of the nature of a contract : American Emi- 
 grant Co. V. Clark, 62-183. 
 
 141. Grant: The words "have given and 
 granted" are sulficient to constitute a con- 
 veyance: Pierson v. Armstrong, 1-383. 
 
 142. Release : Although at common law a 
 release was not effectual to convey title, un- 
 less the releasee had a former estate in pos- 
 session, yet the true principle of construction 
 now adopted is that all insti-uments shall be 
 so construed as to pass the estate when such 
 was the intention of the pai'ties. Therefore, 
 held, that a release by a father to the widow 
 of a deceased son of all the rights of such 
 father as heir in the estate of the son would 
 transfer to the widow the title of the gi-antor 
 in the real estate of decedent : Thornton v. 
 Mulquinne, 12-549. 
 
 143. Interest of grantor: The granting 
 clause in a deed was as follows : " do hereby 
 sell and convey unto said M. the following 
 premises, to wit : all our right, title and in- 
 terest in and to " a certain lot described ; held, 
 to be a grant of the right, title and interest 
 possessed by the grantor, and that the gen- 
 eral covenant of warranty following had no 
 application beyond such right and title: 
 McNear v. McComber, 18-12. 
 
 144. Where there is a grant of certain real 
 property described, although accompanied 
 with tiie explanation that the grantor means 
 thereby only to convey his right, title and in- 
 terest in the premises, followed with a gen- 
 eral warranty of title, a breach of the covenant 
 occurs upon the failure of the title to and 
 eviction from the property; but when the 
 grant is simply of the right, title and interest 
 of the estate sold and conveyed, the covenant 
 is limited to the interest the grantor had in 
 the premises, and a failure of such title does 
 not constitute a breach of warranty : Ibid. 
 
 145. Life estate: Conveyance in a partic- 
 ular case held by reason of the terms of its 
 premises to be a conveyance of a life estate : 
 Davis V. Iowa State Ins. Co., 67-494. 
 
 146. (Jnitclaini: A conveyance in which 
 the grantor purports to sell and convey, as 
 well as quitclaim, is not a mere quitclaim 
 deed : Sibley v. Bullis, 40-429. 
 
 147. The mere fact that a deed contains 
 the words "bargain and sell" does not make 
 it any the less a quitclaim. It is a quit- 
 claim if it conveys, not the property, but the 
 grantor's right, title, interest, and estate, 
 therein : Wightman v. Spofford, 56-145. 
 
 148. So, a deed containing the following 
 granting clause: "have bargained, sold and 
 quitclaimed, and by these pi-esents do bar- 
 gain, sell and quitclaim, all our right, title 
 and interest," etc., etc., held to be more than 
 a mere quitclaim : Wilson v. Irish, 62-260. 
 
 149. A quitclaim deed to a person who 
 knows that his grantor has no title to or 
 interest in the property does not confer upon 
 grantee any right whatever : Curtis v. Smith, 
 42-665. 
 
 That a grantee by quitclaim is not protected 
 as a bona fide purchaser, see Notice, I, g. 
 
 1.50. Uncertainty .ts to grantee: Where 
 a contract is made by the owner of land with 
 another for the conveyance of title, and the 
 consideration is furnished by the latter, he 
 will be considered as the grantee although 
 not expressly named as such. The convey- 
 ance will not be void for uncertainty as to 
 the grantee: American Emigrant Co. v. 
 Clark, 62-182. 
 
 151. Under the facts in a particular case, 
 held, that a conveyance of land purchased 
 by the son with money of the father and 
 intended for the father, the name inserted as 
 
3-iS 
 
 ■ CONVEYANCES, 111, b. c 
 
 Construction. — Conditions and limitations. 
 
 grantee being one common to father and son, 
 who were not accustomed to use any marks 
 of distinction to indicate which was intended, 
 should be considered as a conveyance made 
 to the father : Balwerk v. Durger, 63-358. 
 
 b. Construction. 
 
 152. Circumstances and intention: The 
 
 intention of a party to a conveyance may be 
 ascertained from the entire transaction, and 
 extrinsic circumstances to aid in the con- 
 struction of the instrument, the situation of 
 the parties and the objects in view in the 
 execution of the instrument may be con- 
 sidered: Craven V. Winter, 38-471. 
 
 153. In ascertaining the intent of the par- 
 ties, the court will always consider the then 
 particular situation, the circumstances at- 
 tending the transaction, the state of the 
 country, and the thing granted at the time 
 of the grant: Scholte v. Hosiers, 4-338. 
 
 As to when a deed absolute in form will be 
 construed as a mortgage, see Mortgages, II. 
 
 154. Punctuation: While punctuation is 
 a most fallible standard by which to interpret 
 language, yet it may be resorted to when all 
 other means fail. However, if from the in- 
 sti-ument it is apparent what the true mean- 
 ing is, punctuation will not be sufficient to 
 change it : Scholte v. Hosiers, 4-328. 
 
 155. Copulative: A deed in a particular 
 case construed with reference to punctuation 
 and the use of the copulative : Ibid. 
 
 156. All the parts and ceremonies neces- 
 sary to complete a conveyance are to be taken 
 together as one act and operate from the sub- 
 stantial part b}' relation. Therefore, held, 
 that where a title, evidenced by a certificate 
 of purchase of land from the government, 
 had been conveyed and a patent subsequently 
 issued to the original holder of such certifi- 
 cate, the patent would inure to the person 
 to whom the title had teen conveyed : Caven- 
 derv. Smith, 3 G. Gr., 349. 
 
 157. Construction favorable to grantee: 
 If tliere is ambiguity on the face of a deed, 
 such construction must be given it as will be 
 most favorable to the grantee : Marshall v. 
 McLean, 3 G. Gr., 368. 
 
 158. That construction will be followed 
 which would support, rather than that which 
 would defeat, the conveyance : Barlow v. Chi- 
 cago, JR. I. & P. B. Co., 39-376. 
 
 159. While it is true that exceptions and 
 reservations in conveyances are to be con- 
 strued most strictly against the grantor, that 
 is, the party in whose favor they are inserted, 
 yet if it can be fairly ascertained from the 
 language of the instrument what the parties 
 thereto intended, their intention will be given 
 effect : Wiley v. Sirdorus, 41-224. 
 
 160. Testamentary disposition; revoca- 
 tion : The test to determine whether the in- 
 strument is a deed or testamentary paper, 
 revocable at the will of the maker, is this: 
 If the instrument passes a present interest, 
 although the right to its possession and en- 
 joyment may not occur until some futui-e 
 time, it is a deed or contract ; but if the in- 
 strument does not pass an interest or right 
 until the death of the maker, it is a will or 
 testamentary paper: Craven v. Winter, 38- 
 471. 
 
 161. Therefore, held, that a conveyance 
 by a father to his son, reserving a life estate 
 so himself and his wife, the mother of 
 grantee, was not revocable at will of 
 grantor : Ibid. 
 
 162. A deed referring to and incorporat- 
 ing a will is good even if the disposition of 
 the property is to take effect in futitro; and 
 when a deed is to convey land for such uses 
 as are set out in a will, then the will is not 
 revocable, if no power of revocation is re- 
 served in the deed : Ibid. 
 
 163. Where a conveyance of an estate of 
 land contained, in addition to the usual words 
 of conveyance, the provision, " to commence 
 after the death of both of said grantors," 
 held, that it was of a testamentary character 
 and subject to revocation prior to the death 
 of the grantors, even though made upon a 
 valuable consideration: Leaver v. Oauss, 63- 
 314. 
 
 Further as to testamentary dispositions, 
 see Wills. 
 
 c. Conditions mid limitations. 
 
 164. The statute de donis is not in force 
 in this state as a part of the common law. 
 Therefore, where a conveyance was made to 
 a married woman and the heirs of her body 
 begotten by her present husband, to have 
 and to hold unto her and said heirs, held, that 
 the grantee took a fee-simple estate and had 
 
CONVEYANCES, III, c. 
 
 349 
 
 Conditions and limitations. 
 
 a full right to convey: Pierson v. Lane, 
 60-60. 
 
 165. Inconsistent conditions: Where a 
 conveyance is in fee-simple absolute, but 
 contains a condition in conflict therewith, the 
 conveyance will be upheld and the condition 
 considered as void. Therefore, held, that a 
 conveyance in fee-simple with the condition 
 that any portion of the premises held by the 
 grantee at the time of her death should re- 
 vert to the grantor or his heirs, conveyed an 
 absolute fee-simple estate, and any portion of 
 the premises held by the grantee at her 
 death did not revert to the grantor but passed 
 to her heirs : Case v. Dwire, 6(}-443. 
 
 166. A condition inconsistent with an ex- 
 press grant is void, and such a condition will 
 not be inferred from doubtful and uncertain 
 language : Hurd v. JSurd, 64-414. 
 
 167. Restraint of alienation: Where a 
 conveyance is of a fee-simple estate, without 
 reservation of any reversionary interest of 
 grantor, a condition in restraint of alienation 
 is void. So held where the grant was in the 
 words following: " do give my son, J. M., all 
 my interest in the following lands, ... to 
 have the above described lands his life-time 
 and to go to his children at his death, but if 
 he dies without children, then the above de- 
 scribed land to go to his brother, G. M., and 
 at his death," etc., etc., with the further pro- 
 vision, "It is expressly understood that he 
 shall not part with it nor sell it, nor shall any 
 person sell it for him or for debts whatso- 
 ever:" McCleary v. Ellis, 54^311. 
 
 168. Reservation of life estate: A con- 
 veyance with reservation of life estate from 
 year to year, containing a further provision 
 that the right of the grantor to possession 
 under such life estate must be requested in 
 writing before the first day in March in each 
 and every year, reserves to the grantor a full 
 life estate, and the second provision does not 
 create a limitation upon such estate, but re- 
 lates merely to possession thereunder : Hurd 
 V. Hurd, 64-414. 
 
 169. A condition subsequent is not so 
 rigidly construed as a condition precedent ; 
 and held, that a conveyance upon condition 
 of defeasance in case the grantee should die 
 without children living at her death was not 
 defeated where the grantee left one child 
 surviving : Pierson v. Armstrong, 1-283. 
 
 1 70. Where conditions inserted in a deed 
 by way of covenants are not conditions prec- 
 edent to be performed before the title to the 
 land vests in the grantee, and before it is to 
 be appropriated and used, the title will not 
 be set aside in equity for failure to perform 
 the same : Stringer v. Keokuk, Mt. P. & N. 
 R. Co., 59-277. 
 
 171. Where a vacation of an alley by the 
 city was procured upon representations of 
 an adjoining owner that he would erect 
 thereon a building of a certain description 
 at a certain cost, and the building erected did 
 not correspond with the representations, lield, 
 that the condition of the vacation of the alley 
 was a condition subsequent, and not a condi- 
 tion pi'ecedent, and that a court of equity 
 would not declare the vacation void and 
 order the alley reopened: Marshalltown v. 
 Forney, 61-578. 
 
 172. Condition precedent; iierformanpe: 
 Where a conveyance was delivered in escrow, 
 to take effect when a depot was located as 
 agreed, held, that the mere platting of an 
 addition to the town upon which certain 
 ground was marked depot ground, did not 
 amount to such location as contemplated, 
 nor did a subsequent location of a depot on 
 that spot, made by another company, not suc- 
 ceeding to the rights of the grantee in the 
 deed: Sioux City & I. F. Town Lot, etc., Co. 
 V. Wilson, 50-422. 
 
 173. Certain conditions to be performed by 
 a purchaser of swamp lands, held, in a par- 
 ticular case, not to be in the nature of con- 
 ditions precedent to the conveyance: Page 
 County V. American Emigrant Co., 41-115. 
 
 174. A conveyance upon condition prece- 
 dent does not take effect untU performance 
 of the condition: In re Smith, 56-370. 
 
 175. Conditions and stipulations in con- 
 veyances to railway companies: Where a 
 part of the consideration of a conveyance to 
 a railway company of land for depot grounds 
 was expressed to be the permanent location of 
 the depot on the grounds conveyed, held, that 
 such provision was not a promissory undertak- 
 ing on the part of the grantee to permanently 
 maintain a depot on the land conveyed, and 
 such grantee was not liable for failure to 
 comply with such provision further than to 
 the forfeiture of the right coriveyed, for the 
 reason that such provision was a condition 
 
350 
 
 CONVEYANCES, III, c, d. 
 
 Conditions and limitations. — Effect. 
 
 subsequent, and not a personal obligation: 
 Close V. Burlington, C. B. &N. R. Co., 6<H49. 
 
 176. Where a deed of a right of way to a 
 railwtLy company contained a provision as 
 to the location of a depot, such, proviso was 
 construed to be a condition precedent, the 
 breach of which could be taken advantage 
 of by the giantor (he having remained in 
 possession) without formal entry, by an ac- 
 tion to have damages assessed as though no 
 deed had ever been made: Taylor i\ Cedar 
 Rapids &St. P. R. Co., 35-371. 
 
 177. Where a conveyance gi-anted the 
 right to use a certain side-track "as now 
 located," and afterwards the grantor relaid 
 such side-track in a somewhat different loca- 
 tion, held, that the right to use the side-track, 
 as relaid, existed in the grantee: Fellows v. 
 Webb, 43-133. 
 
 178. A conveyance of a right of way to a 
 railway company ' ' as located or to be located 
 by the engineers of said company," held not 
 to be defeated by the fact that the engineer 
 of an assignee of said company located the 
 road, there being no manifest intention to 
 rely on the personal qualifications of a par- 
 ticular engineer : Barlow v. Chicago, R. I. & 
 P. R. Co., 29-276. 
 
 179. A conveyance to a railway company 
 granted a strip of land one hundred feet 
 wide through a certain tract as located by 
 the line of road " for the construction of the 
 second division of said railroad," and with a 
 provision "that in case such railroad com- 
 pany do not construct their road through 
 said tract, or shall, after construction, per- 
 manently abandon the road through said 
 tract of land, the same shall revert to and be- 
 come the property of the grantors, their 
 hell's or assigns ; " held, that, taking into con- 
 sideration the situation of the parties at the 
 time the deed was made and the subject-mat- 
 ter, together with the language of the deed 
 and the intention of the parties, the legal 
 effect of the instrument was no more than a 
 conveyance of a right of way : Jhid. 
 
 180. Limitation of covenants: A deed 
 contained covenants " that we are lawfully 
 seized of said premises; that they are free 
 from incumbrances ; that we have good right 
 and lawful anthority to sell the same, and 
 that we do hereby covenant to warrant and 
 defend the said premises against the lawful 
 
 claims of all persons whomsoever claiming 
 through or under us," the words in italics be- 
 ing written, the others printed; held, that 
 the words in italics appeared from the evi- 
 dence and the language to have been in- 
 tended to limit and restrain all the preceding 
 covenants, special as well as general, and 
 that the grantor was not bound to protect 
 the property against incumbrances other than 
 his own and those of persons claiming under 
 liim : Crum v. Loud, 23-219. 
 
 181. Perpetuity: Where a conveyance is 
 made to the trustees of a religious society 
 without giving the power to alienate and in- 
 vest the proceeds, the grant is not objection- 
 able on the ground of creating a perpetuity : 
 Miller v. Chittenden, 3-315, 362. 
 
 182. Under a statute (Code, § 1930) de- 
 claring every disposition of property void 
 which suspends the absolute power of con- 
 trolling the same for a longer period than 
 the lives of persons then in being and for 
 twenty-one years thereafter, held, that a 
 lease for nine hundred and ninety-nine years 
 was not invalid: Todhunter v. Des Moines, 
 I. & M. R. Co., 58-205. 
 
 183. Adverse possession: Even apart 
 from a statutory provision that adverse pos- 
 session shall not prevent conveyance, by the 
 owner, Of his interest, it is doubtful whether 
 the common law rule, which prohibited a 
 sale of property in the adverse possession of 
 another, should longer apply, things in ac- 
 tion being now assignable : Foster v. Young, 
 35-37, 40. 
 
 d. Efect. 
 
 184. A conveyance by a bankrupt to his 
 
 assignee will pass the legal title so as prima 
 facie to authorize such assignee to bring ac- 
 tion to quiet title : Lewis v. Soule, 52-11. 
 
 185. License; revocation: Where an im- 
 provement is made under a parol license, an 
 interest is acquired thereby which cannot be 
 revoked either by the licensor or his grantee 
 with notice. So held with regard to a parti- 
 tion wall erected partly upon land of another 
 by parol license of the owner : Wichersham v. 
 Orr, 9-253. 
 
 186. Where money or labor has been ex- 
 pended on the land of another upon the faith 
 of a promise given by him, the owner shall 
 not assert his legal right to the soil so as to 
 
CONVEYANCES, III, d. 
 
 351 
 
 Effect. 
 
 interfere with tlie use or enjoyment of the 
 building or sti-ucture erected as the result of 
 such promise by the money and labor of the 
 licensee: Ibid. 
 
 187. Conveyance as mortg'ag'e: In a par- 
 ticular case, held, that under the terms of a 
 conveyance which was in fact a mortgage, 
 the grantor was entitled to the possession of 
 the i^roperty until sold to third persons in 
 accordance with provisions therein : Radford 
 V. Folsom, 58-473. 
 
 188. Unexpired lease: A conveyance of 
 land with all appurtenant thereto carries 
 with it all the rights of the grantor under an 
 unexpired lease of the premises : Hatfield v. 
 Lodhwood, 18-396. 
 
 189. Unaccrued rent: Rent reserved by 
 lease, and not accrued at the time of con- 
 veyance, passes by the conveyance to the 
 grantee: Winn v. Murehead, 52-64; Van 
 
 • Wa.gner v. Van Nostrand, 19-433. 
 
 190. In such case, action against the ten- 
 ant to recover such rent may be brought by 
 the grantee in his own name: Abercrombie 
 V. Redpath, 1-111. 
 
 191. The grantor has no right to receive 
 such rent, but his liability to the grantee, if 
 he should collect the rent, would be for 
 money had and received, and not for a breach 
 of the covenants of his deed : Van Wagner v. 
 Van Nostrand, 19-423. 
 
 192. Keservation of easement: Where a 
 father executed to his children by way of 
 gift a conveyance for certain property, 
 coupled with an oral understanding as to the 
 use of certain portions of such property, con- 
 stituting an easement in the father over such 
 property appurtenant to other property 
 owned by him, and afterwards such children 
 united in executing an instrument to the 
 father, conveying to him such easement for 
 the mutual benefit of all the parties, held, 
 that such conveyance was valid, to create an 
 easement in the father: Clapp v. Forster, 
 67-49. 
 
 193. A parol reservation of unaccrued 
 rent would be of no validity as against the 
 conveyance: Winn v. Murehead, 52-64. 
 
 194. "Whether a parol reservation of grow- 
 ing crops at the time of sale or conveyance 
 of the land can be shown in a controversy 
 between the grantor and grantee respecting 
 them, qucere: Johnson v. Tantlinger, 31-500. 
 
 195. But where it was alleged that grantor 
 bad remained in possession under such pai'ol 
 agreement, and with consent of the grantee 
 cultivated such crops which were the prod- 
 uce of his toil and labor, held, that those 
 facts were properly provable in defense to, 
 or reduction of, a claim by the grantee for 
 the value of such crops : Ibid. 
 
 190. A parol reservation of standing tim- 
 ber cannot be shown for the purpose of vary- 
 ing the effect of a conveyance of the prop- 
 erty: Davis V. Hull, 67-479. 
 
 197. Crops: The rule that growing crops 
 follow the title of the land is not applicable to 
 grain which is matured and ready for har- 
 vest. It then possesses the character of per- 
 sonal chattels, and is not to be regarded as a 
 part of the realty. Such is the rule, at least, 
 where the question is between the purchaser 
 at foreclosure sale and the tenant of the mort- 
 gaged premises : Hedht v. Dettman, 56-679. 
 
 198. Crops standing upon land at the time 
 of a sheriff's deed, but already fully matured, 
 do not pass to the purchaser under such deed : 
 Everingham v. Braden, 58-133. 
 
 199. Where a landlord who was entitled to 
 a share of the crops upon the leased premises 
 conveyed the same after the maturity of the 
 crops and after a portion thereof had been 
 gathered, reserving to the tenant the right to 
 get off his crops, held, that the interest of the 
 landlord in the crops, harvested and un- 
 harvested, did not pass to the grantee : Mof- 
 fett V. Armstrong, 40-484. 
 
 200. Personal property upon the land: 
 A conveyance of real property does not carry 
 with it personal property, such as rails cut 
 and piled upon the land : Robertson v. Phil- 
 lips, 3 G. Gr., 220. 
 
 201. Personal property attached: Acon- 
 veyance of land, unless exceptions and reser- 
 vations be therein made, includes not only 
 the earth, but everything attached to it, 
 whether by nature, as herbage, trees, etc., or 
 artificially, by man, as fences, buildings, and 
 the like : Van Wagner v. Van Nostrand, 19- 
 422. 
 
 202. Fences: A fence standing upon land 
 is part of the realty, and passes with a con- 
 veyance thereof, even though constructed 
 thereon by mistake by a person having no in- 
 terest in the property : Burlerson v. Teeple, 2 
 G. Gr., 543. 
 
352 
 
 CONVEYANCES, III, d. 
 
 Effect. 
 
 203. Appnrtenaiices are things belonging 
 to another thing as principal, and which pass 
 as incident to the principal thing. The term 
 as used in conTeyances covers nothing but 
 land and such things as belong thereto and 
 are part of the realty; and held, that the 
 term could not be construed to cover fixtures 
 which would not otherwise pass by the deed : 
 Ottumwa Woolen Mills v. Sawley, 44^57. 
 
 204. Unexecuted power of attorney : The 
 execution of a power of attorney authoriz- 
 ing a person thei'ein named to convey lands 
 to another upon certain conditions and for 
 certain purposes, does not vest any interest 
 in the land in the person to whom such con- 
 veyance is authorized to be made : Tharp v. 
 Brenneman, 41-251. 
 
 205. Conveyance to Imsband and wife 
 jointly creates a tenancy in common and 
 not a joint tenancy, or an estate in entirety : 
 Hoffman v. Stigers, 28-303. 
 
 206. "Heirs," or other technical words of 
 inheritance, are by statute declared not neces- 
 sary to convey an estate in fee-simple. (Code, 
 § 1929) : Barlow v. Chicago, R. I. & P. R. 
 Co., 29-376. 
 
 207. What interest passes: A convey- 
 ance passes any equitable interest the grantor 
 may have in the land, although he have no 
 legal interest : White v. Butt, 33-335, 345. 
 
 208. The dower interest of a wife is re- 
 linquished by a deed in which she joins with 
 her husband in the granting clause and cov- 
 enants, although there is no express relin- 
 quishment of dower: Edwards v. Sullivan, 
 30-503 ; Jones v. Des Moines, 43-209. 
 
 20t). Inurement of after-acquired title ;i 
 estoppel: The statutory provision as to 
 after-acquired title does not apply where a 
 deed conveys the estate which the grantor 
 at the time actually possessed, and he subse- 
 quently acquires a greater estate : Collamer 
 V. Kelley, 13-.319, 326. 
 
 210. In order that a conveyance may oper- 
 ate to pass an after-acquired title, it must be 
 so executed that it would have passed such 
 title at the time of execution if the grantor 
 had then had such title : Heaton v. Fi'yberger, 
 38-185. 
 
 211. Where the wife simply joins with the I 
 
 husband in a conveyance for the purpose of 
 relinquishing her dower, an interest after- 
 ward acquired by her will not inure to the 
 benefit of the grantee in such conveyance: 
 Childs V. McChesney, 20-431 ; O'Neil v. Fan- 
 derburg, 25-104; Edwards v, Davenport, 4 
 McCrary, 34. 
 
 213. Where A. conveyed property to B. 
 without having title thereto, and subsequently 
 C, the owner of the title, conveyedto A., tak- 
 ing from him a mortgage for a part of the 
 purchase money, held, that although the 
 title thus conveyed to A. vested at once in B., 
 nevertheless C. would be allowed to enforce 
 his mortgage against the property in B.'s 
 hands : Morgan v. Graham, 35-213. 
 
 213. A mortgage will attach to an after- 
 acquu-ed title : Rice v. Kelso, 57-115. 
 
 214. If a warranty deed be executed and 
 duly recorded while the grantor has no title 
 to the land, and full title be subsequently 
 acquired by him, it inures to the benefit of 
 the grantee. The registry also protects him 
 against all subsequent purchasers. But this 
 would not be true of a quitclaim deed, for 
 under such deed a subsequent title does not 
 inure: Warburton v. Mattox, Mor., 367. 
 
 215. The statutory provision above re- 
 ferred to, applied : Van Orman v. McGregor, 
 23-300 ; Rogers v. Hussey, 36-664 ; Bellows v. 
 Todd, 39-209, 217 ; Prouty v. Tollman, 65- 
 354. 
 
 216. Estoppel: A conveyance with cov- 
 enants by the owner of property wiU estop 
 his heirs from claiming any interest hostile 
 to the rights of the grantee under such con- 
 veyance, but will not estop those claiming as 
 heirs of the wife of such grantor from assert- 
 ing her rights in the property by reason of 
 her dower interest not relinquished in such 
 prior conveyance: Dunlap v. Thomas, 69- 
 358. 
 
 217. Where the father of a minor, acting 
 for him without authority, partitioned a piece 
 of land in which the minor had an interest 
 and conveyed the portion set apart to the 
 minor, and upon coming of age the minor 
 ratified such sale by executing a quitclaim 
 deed, held, that he was estopped from assert- 
 ing any interest in the part conveyed by the 
 
 ' Code, § 1931. Where a deed purports to convey a greater interest than the grantor was at the time pos- 
 sessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to 
 convey, inures to the benefit of the grantee. 
 
CONVEYANCES, IV. 
 
 353 
 
 Description. 
 
 father to the other joint owner: Drake v. 
 Wise, 36-476. 
 
 218. Where a party executed a mortgage 
 in which his father and mother joined, held, 
 that the mother was not estopped from 
 setting up the mental incapacity of the son 
 to execute the mortgage, upon afterward 
 acquiring the title to the mortgaged prop- 
 erty : Edwards v. Davenport, 4 McCrary, 34. 
 
 lY. Desceiption. 
 
 219. By g'oveniinent snryey ; judicial 
 notice: Where land is described by the gov- 
 ernment survey, the court will take judicial 
 notice of its location: Hypfner v. Walsh, 3 
 G. Gr., 509. 
 
 220. Thus, where the numbers of township 
 and range are given, and also the county in 
 which the property is situated, the court will 
 take judicial notice that there could be but 
 one such township in the county, and the 
 description will be sufficient: Stoddard v. 
 Sloan, 65-680. 
 
 221. Where the description was of a por- 
 tion of a government subdivision of a cer- 
 tain section of "township 84, range 26,"' held, 
 that it was sufficiently specific although 
 the name of the state was not given, it ap- 
 pearing that such description would not ap- 
 ply to any other piece of land covered by 
 government surveys: Beal v. Blair, 33-318. 
 
 222. The abbreviations in common use to 
 designate the fractional parts of a, section 
 according to the government survey are 
 sufficiently definite : Jenkins v. McTigue, 23 
 Fed. Rep., 148. 
 
 223. Plat and field-notes: In construing 
 -a grant of land which is described by the 
 number of the section, or legal fraction of a 
 section, and the township and range, courts 
 will look to the plat and field-notefe made and 
 returned by the government surveyors to the 
 surveyor-general's office in order to locate 
 the boundaries of the land-.'Ufford v. Wil- 
 hins, 33-110. 
 
 224. The lines actually run upon the 
 ground by the original surveyor become the 
 true external boundaries if they can be 
 ascertained by the monuments erected by the 
 surveyor, and to these monuments, when 
 they exist, courses, distances, and measure- 
 jnents must all yield : Ihid. 
 
 Vol. I — 28 
 
 225. Where, by mistake, the plat does not 
 represent the survey, the survey will govern : 
 Bradstreet v. Dunham, 65-248. 
 
 Further as to government survey, see 
 P^UBLic Lands. 
 
 226. General description: A description 
 embracing all the land inuring to the grantor 
 under a certain contract or deed is a suffi- 
 ciently definite description: American Emi- 
 grant Co. V. Clark, 62-182. 
 
 227. A conveyance by general description 
 will not be held inoperative in equity in the 
 absence of fraud or of evidence that grantor 
 has acted in ignorance of his rights : Thorn- 
 ton V. Mulquinne, 12-549. 
 
 228. Therefore, held, that a conveyance by 
 an heir of all his right to the estate of deced- 
 ent was sufficient to cover his interest in the 
 real property of such decedent : Ibid. 
 
 229. General description not controlled 
 by particular: A certain and particular de- 
 scription should never control a general one 
 which is in itself clear and unambiguous, un- 
 less the object of the particular description is 
 to render that which is general and uncertain 
 more specific, definite and certain. Such 
 particular description ought never to limit a 
 grant made certain by a general description, 
 unless it can be clearly ascertained from all 
 the words of the grant that it was the inten- 
 tion of the parties to restrict the grant by the 
 particular description : Marshall v. McLean, 
 3 G. Gr., 368. 
 
 230. So where the description by reference 
 to fractional subdivisions of the quarter-sec- 
 tion, clearly and unmistakably indicated the 
 boundary of the land and its exact quantity, 
 held, that such description would not be 
 varied by a reference to a city addition: 
 Cummings v. Browne, 61-385. 
 
 231. But where the general description is 
 indefinite and uncertain, and reference to the 
 pai'ticular description must be had in order 
 to ascertain with certainty the subject of the 
 grant, the rule as to the particular not limit- 
 ing the general does not apply, but the whole 
 language will be taken together, and though 
 it may be ambiguous or even contradictory, 
 if upon the whole instrument there is suffi- 
 cient to manifest the intention of the parties 
 with reasonable certainty, that wiU suffice : 
 Barney v. Miller, 18-460; Barney v. Ivins, 
 23-168. 
 
35J: 
 
 CONVEYANCES, IV. 
 
 Descriptaon. 
 
 232. Surplusage: A description complete 
 in itself and free from ambiguity is not to be 
 •affected by a subsequent restrictive and dis- 
 junctive clause, which may be treated as sur- 
 plusage: Wright v. Cochran, 3 G. Gr., 507. 
 
 233. Where seyeral particulars are given 
 in a grant, all of which are necessary co as- 
 certain the location of the land intended to 
 be conveyed, nothing but what will con'e- 
 spond with all these particulars will pass by 
 the grant ; but if there be certain particulars 
 sufficiently ascertained to locate the grant, 
 the addition of a false or mistaken particular 
 or boundary may be rejected: Sayers v. 
 Lyons, 10-249. 
 
 234. Eepug-nant calls: If there shall be 
 in the instrument a repugnant call, which by 
 the other descriptive terms clearly appears to 
 have been made through mistake, the con- 
 veyance is not rendered void by reason 
 thereof : Glenn v. Moloney, 4-314. 
 
 235. Where the description in the instru- 
 ment, as applied to its subject-matter, is 
 found to be true in part, but not true in 
 every part, so much of it as is false will be 
 rejected ; and it will take effect if sufficient 
 is known to ascertain its application: Ihid. 
 
 236. Description of an undefined portion: 
 A deed purporting to convey " forty feet of " 
 a certain lot and block, held fatally defective 
 for uncertainty: Bosworth v. Farenholz, 
 3-84. 
 
 237. Where a grant of any given number 
 of acres is made out of the corner of a tract 
 of land, the premises should be surveyed in a 
 square: Fitzgerald v. Britt, 43-498; Imme- 
 gart v. Gorgas, 41-439; Morris' Adm'rs v. 
 Stuart's Adm'rs, 1 G. Gr., 375. 
 
 238. Where a given number of acres are 
 sold off a given side of a government subdi- 
 vision, the premises are to be surveyed into 
 an oblong square : Morris' Adm'rs v. Stuart's 
 Adm'rs, 1 G. Gr., 375. 
 
 239. Incorporating reference from an- 
 other deed: Although the description in a 
 deed be vague and insufficient, yet, if it re- 
 fers to another deed in which the land is 
 described with certainty, such reference will 
 render the description certain and sufficient : 
 Nightingale v. Walker, 3 G. Gr., 96. 
 
 240. The land included in a guardian's 
 proceeding for sale was previously surveyed 
 and platted into lots, a copy of the plat being 
 
 part of the record. One deed described, by 
 metes and bounds, one and a quai'ter acres in 
 " lot one in the survey of said land, being a 
 part of the southeast quai'ter," etc. ; another 
 deed referred, to the same survey by date, 
 and conveyed all of said lot one, after ex- 
 cepting, by metes and bounds, the parcel 
 previously conveyed ; held, that the descrip- 
 tion of the premises was sufficiently certain : 
 Parsley v. Hayes, 33-11. 
 
 241. Acts of the parties as affecting the 
 construction: Where the description in a 
 deed started from a point forty feet west of 
 the east line of a certain out-lot, but the 
 original plat of the out-lot fixed such east line 
 forty feet east of the same line as fixed in 
 subsequent plats, held, that the fact that the 
 grantee was, by the original owner, allowed 
 for eleven years to remain in possession of 
 and cultivate the tract covered by the deed 
 according to the subsequent plats of the out- 
 lot, was sufficient to show that it was this 
 property which was intended to be conveyed : 
 Foley V. Kane, 53-64. 
 
 242. Courses and distances governed by 
 fixed monuments: It is a g&neral rule of 
 construction that courses and distances must 
 give way to natural or artificial monuments 
 or objects : Sayers v. Lyons, 10-349 ; Qaveny 
 V. Hinton, 3 G. Gr., 344; Sargent v. Herod, 
 3-145; Sanders v. Eldridge, 46-34. 
 
 243. Thus a comer of a lot may constitute 
 a fixed monument governing courses and 
 distances : Sayers v. Lyons, 10-349. 
 
 244. The lines actually run upon the 
 ground by the original surveyor become the 
 true external boundaries if they can be ascer- 
 tained by the monuments, and to these monu- 
 ments, when they exist, courses, distances 
 and measurements must all yield : Ufford v. 
 Wilkins, 33-110. 
 
 245. In establishing a lost survey courses 
 and distances must yield to fixed monuments : 
 Moreland v. Page, 3-139. 
 
 246. When a general boundary is merely, 
 directory and uncertain it must yield to 
 special or locative calls based upon visible 
 objects: Morrison v. Langworthy, 4 G. Gr., 
 177. 
 
 247. Where the parties to a conveyance stip- 
 ulated that a house and certain other build- 
 ings upon a certain portion of the premises 
 described as " a strip ten yards wide and one 
 
CONVEYANCES, IV. 
 
 355 
 
 Des6ription. 
 
 hundred yards long," at the west side thereof, 
 should be reserved to the gi-antor, and it ap- 
 peared that by mistake of the parties the de- 
 scription did not induda the house intended 
 to be reserved, held, that the description must 
 give way to the monuments established, to 
 carry out the intention of the parties, and 
 that the house referred to would be included 
 in the reservation although not on the strip 
 of land specifically described: Gaveny v. 
 Hinton, 3 G. Gr., 344. 
 
 248. Monuments or stakes pointed out by 
 the seller to the buyer as indicating the cor- 
 ners of the land are not to be considered as 
 higher evidence of the true corners than the 
 boundaries ascertained by a survey though 
 made long afterwards, when such monu- 
 ments have not been established as fixed 
 monuments with reference to which the 
 property is described : Messer v. Reginnitter, 
 33-312. 
 
 249. Bounded by stream or highway : As 
 a general rule a grant of land bounded by 
 a stream or highway covers the fee in the 
 stream or highway to its center, provided 
 that the grantor at the time owned to the 
 center and there are no words or specifica- 
 tions or descriptions to show a contrary in- 
 tent : Dubuque v. Maloney, 9-450. 
 
 250. If lots are sold by their number on 
 the plat, upon which they are represented as 
 bounded by a street or highway, that cir- 
 cumstance raises a strong presumption of in- 
 tent to pass the title to the center of the 
 street or highway, and it will so pass accord- 
 ingly unless the highway be clearly excluded : 
 Ibid. 
 
 251. But where the call in a deed was 
 "up the west bank" of a certain stream, 
 hdd, that it could not be construed so that 
 the tract would extend to the middle of the 
 stream : Murphy v. Copeland, 51-515. 
 
 252. low water in a stream marks a per- 
 manent and fixed hue which can be deter- 
 mined with greater certainty than the line 
 of any other stage of water ; and where by 
 conveyance a party acquires title to land 
 bounded by a water-course (which is not 
 navigable), the boundary of his land is the 
 line of low water : Murphy v. Copeland, 58- 
 409. 
 
 Where a navigable stream forms the bound- 
 ary line, the title of the riparian owner ex- 
 
 tends only to high water mark : See Waters, 
 II. 
 
 253. Distances and quantity: Tlie rule 
 that distances control quantity, in the de- 
 scription in a deed, wUl not prevail where 
 the intention is clearly expressed that a spec- 
 ified quantity is to be conveyed and no more : 
 Sanders v. Godding, 45-463. 
 
 254. Constrtietion ; "linlts:" So held 
 where the land conveyed was, by the very 
 terms of the deed, to be of the area of one 
 acre, and the description could be made to 
 conform to the quantity by interpreting 
 "links" in the description as hundredths of 
 a rod instead of hundredths of a chain : Ibid. 
 
 255. Quantity: Where the quantity of 
 land is mentioned in the deed as part of the 
 description, it will be rejected if inconsistent 
 with the actual area of the premises described 
 by known monuments or other certain de- 
 scription: Uffordv. Wilkins, 33-110. 
 
 256. Therefore, held, that a conveyance of 
 the sixteenth of a section by government 
 description, passed title to the entire govern- 
 ment subdivision, although it was fractional 
 and contained more than forty acres, the 
 amount mentioned in the deed : Ibid. 
 
 257. "More or less:" The words "more 
 or less " in a conveyance are only intended to 
 cover a reasonable excess or deficit. If the 
 difference between the real and supposed 
 quantity is very great, both parties will be 
 deemed to have acted under an obvious mis- 
 take, 'which it will be the duty of a court of 
 equity to correct: Hosleton v. Dickinson, 
 51-244. 
 
 258. Evidence is admissible to show that 
 the grantor read the conveyance and referred 
 to the fact that the words " more or less" 
 were omitted, and that the grantee informed 
 him that such omission would make no dif- 
 ference ; such evidence being admissible as 
 bearing on the question whether the words 
 were omitted by mistake : Siceezey v. Col- 
 lins, 40-540. 
 
 259. Mistake in survey ; restoring lost 
 corners: Where the whole length between 
 remote corners is found to be variant from 
 the length called for, the intermediate lost 
 corners are to be restored by distributing the 
 whole difference in length proportionally be- 
 tween the different parts of the whole line, 
 and it is not proper to tlurow the entire de- 
 
35G 
 
 CONVEYANCES, V, a. 
 
 Covenants. — Object and effect. 
 
 flciency or excess upon that portion which, 
 as originally surveyed, was intended to em- 
 brace the balance of the tract : Moreland v. 
 Page, 2-139 ; Newcomb v. Lewis, 31-488. 
 
 As to correction of description, see Equity, 
 n. a. 
 
 V. Covenants. 
 
 a. Ohject am,d effect. 
 
 260. The title without coTenants, at 
 grantee's risk: The general rule is that if 
 the deed contains no covenants, then, in the 
 s^bsence of fraud, all questions of title are at 
 the risk of the grantee. If it does contain 
 covenants, the grantee must have recourse to 
 them : Allen v. Pegram, 16-163. 
 
 261. The right of the grantee to relief 
 either in law or equity on account of defects 
 in or incumbrances on the title, in the ab- 
 sence of fraud, depends solely upon the 
 covenants for title which he has received. 
 If he has received no covenant which covers 
 the defect or incumbrance, he can neither 
 detain the purchase money, nor recover it 
 back if already paid. The exception in the 
 case of fraud is the only one recognized to 
 the ■well-settled rule that the purchaser's 
 right to relief after the execution of the deed 
 depends solely upon the covenants for title 
 which the deed contains : Brandt v. Foster, 
 5-287. 
 
 262. Warranty not implied : By common 
 law, the words "grant, bargain and sell," in 
 the creation of a freehold, imply no warranty 
 whatever, and the conveyance of a fee does 
 not ipso facto imply any warranty : Funk v, 
 Greswell, 5-63. 
 
 263. Liability of grantor for fraud: 
 Where grantor, with deliberate intent of de- 
 feating a prior conveyance by him, executes 
 a subsequent conveyance, which prevails over 
 the prior one by reason of a defect in the re- 
 cording, the grantor is liable to his first 
 grantee for the damages occasioned by such 
 fraudulent act, the measure of damage being 
 the value of the land at the time the prior 
 title was defeated: Burdiok v. Seymour, 39- 
 453. 
 
 264. General waiTanty: The general cove- 
 nant of warranty specified in the statutory 
 form for a warranty deed includes and im- 
 plies the usual covenants in a deed of con- 
 
 veyance in fee-simple, including one against 
 incumbrances. (Code, § 1970); Funk v. Cress- 
 well, .5-62. 
 
 265. Under this covenant the grantee has 
 all the rights he would have had if the con- 
 veyance had contained express covenants of 
 seizin, freedom from incumbrance, right to 
 convey, and the like: Van Wagner v. Van 
 Nostrand, 19-422. 
 
 266. Parol warranty: Whether a war- 
 ranty not expressed in the deed may be 
 proved by parol, quaere: Clark v. Ralls, 50- 
 275. 
 
 267. The covenant to warrant and de- 
 fend the title against all persons whomsoever 
 implies all the usual covenants in deeds of 
 conveyance in fee-simple : Richards v. Iowa 
 Homestead Co., 44^304. 
 
 268. Under a statnte providing that the 
 words "grant, bargain and sell," in all con- 
 veyances, should be consti-ued as expressing 
 certain covenants, held, that the addition 
 thereto in the instrument of the further cov- 
 enant " to warrant and defend the title to 
 the same property against the claims of all 
 and every person whatsoever from or under 
 him," did not limit the general covenant of 
 warranty implied by statute from the words 
 of the deed, even though a special covenant 
 was unnecessary in view of the general cov- 
 enant: Brown v. Tomlinson, 2 G. Gr., 535. 
 
 269. Covenant of seizin: The covenant 
 that the gi-antor was seized in fee was, at 
 common law, regarded as a covenant for title 
 in contradistinction to the covenant for quiet 
 enjoyment, which was called a covenant for 
 the possession. So, in the United States, the 
 weight of authority inclines to the rule that 
 a covenant that one is seized means seized 
 of an indefeasible estate ; and a covenant for 
 seizin is regarded as a covenant of title, 
 the word being used as synonymous with 
 right : Brandt v. Foster, 5-287. 
 
 2 70. Conveyance of grantor's title with 
 covenants: Where a party conveys all his 
 right, title and interest in the lands described, 
 and covenants to warrant and defend the 
 premises against all lawful claims arising 
 under him, the covenant refers to the land 
 described and not to the right and title of 
 the grantor, and he becomes liable thereunder 
 if there are incumbrances against the land; 
 Funk V, Creswell, 5-63. 
 
CONVEYANCES, V, 1). 
 
 357 
 
 Covenants. — Breach. 
 
 271. Where one undertook to convey a 
 settler's or claimant's title, using the words 
 "sell, convey and quitclaim" in the grant- 
 ing clause, and covenanted to " warrant and 
 defend the premises," etc., held, that the 
 grantor was liable for a failure of title : Will- 
 iamson V. Test, 34-138. 
 
 272. Exception of iiieumbrances: Where 
 there was inserted after the usual covenants 
 of warranty the clause, " except a mortgage 
 for $800 to C. H. B.," held, that this excep- 
 tion was intended by tlie parties to limit the 
 conditions of the covenant against incum- 
 brances : Morrison v. Morrison, 38-73. 
 
 273. Agrreement for other assurances: 
 The fact that grantor has covenanted to 
 afterwards make other assurances of title 
 which may be required of him will not 
 vitiate the conveyance executed if it is in it- 
 self sufficient to pass title : Dussaume v. Bur- 
 nett, 5-95. 
 
 b. £reachj remedies. 
 
 274. Eyiction: The covenant of war- 
 ranty is intended to assure to the purchaser 
 the possession of the premises conveyed, and 
 is only broken by eviction : Brandt v. Foster, 
 5-387. 
 
 275. Actual or constrnctive: This evic- 
 tion may be either actual or constructive, 
 and the purchaser may consider himself 
 evicted by buying in the paramount title 
 when it shall have been hostilely asserted : 
 Ibid. 
 
 276. The ouster or eviction necessary to con- 
 stitute a breach of the covenant of warranty 
 need not be by process of law. The grantee 
 may surrender the possession when the hos- 
 tile title is asserted, but if he does so, he as- 
 sumes the burden of proving that the 'title 
 to which he surrenders without contest is 
 actually paramount to.that of the grantor: 
 Ibid. ; Funk v. Creswell, 5-62, 86 ; Thomas v. 
 Stickle, 32-71. 
 
 277. A vendee in possession under title 
 bond is protected in the same way in regard 
 to the purchase of an outstanding title as 
 though he were a grantee with covenants of 
 warranty: Thomas v. Stickle, 33-71. 
 
 278. It is sufficient to constitute a breach 
 of the covenant of seizin, or that against in- 
 cumbrances, that an adverse claim or incum- 
 brance exists, whether asserted or not ; but 
 
 to constitute a breach of the covenant of 
 warranty it is necessary that the adverse 
 claim be hostilely asserted. It need not, 
 however, be asserted by judgment or suit: 
 Ftmk V. Creswell. 5-62, 89. 
 
 279. Sale under subsequent judgment: 
 A warranty in a deed of conveyance is not 
 broken by sale of the property under a judg- 
 ment subsequently recovered; as for instance 
 where the property is subjected to such judg- 
 ment on account of the conveyance being in 
 fraud of creditors: Small v. Somerville, 58- 
 362. 
 
 280. Covenant of seizin: Where at the 
 time of conveyance the grantor has no title, 
 the covenant of seizin is broken on the deliv- 
 ery of the deed, and it is not necessary to 
 show ouster or eviction to entitle the grantee 
 to recover for the breach : Zent v. Picken, 54- 
 535. 
 
 281. Equitable title: The mere fact of 
 the existence of an equitable title in a third 
 person cannot be set up in an action at law 
 as a breach of any of the usual covenants of 
 a deed conveying the legal title : Wilson v. 
 Irish, 57-184. 
 
 282. Snhstantial breacli; nominal dam- 
 ages: Until some substantial injury occurs 
 to the grantee in a deed with covenants, no 
 recovery can be had for breach of the cov- 
 enant of seizin except for nominal dam- 
 ages : Hencke v. Johnson, 63-555. 
 
 283. Kcmoval of fixtures: The removal 
 of a stable, standing upon land at the date of 
 a conveyance of the same, by a tenant having 
 the right of removal, no reservation thereof 
 having been made in the deed, is a breach of 
 the covenant of seizin; and this, too, al- 
 though the covenantee knew at the time of 
 the conveyance that the stable was the 
 property of the tenant, and that he had the 
 right of removal: Van Wagner v. Van Nos- 
 trand, 19-433. 
 
 284. A covenant against incumbrances is 
 broken upon the making of the conveyance, 
 if an incumbrance then exists: Knadler v. 
 Sharp, 36-233. 
 
 285. Nominal damages: Therefore the 
 grantee may then maintain an action and re- 
 cover nominal damages although he has not 
 paid off the incumbrances; but such an ac- 
 tion to recover would not prevent another 
 action by that grantee or his grantee how- 
 
558 
 
 CONVEYANCES, V, b. 
 
 Covenants. — Bi-each; remedies. 
 
 ever remote, when and after either has been 
 required to discharge the incumbrance in 
 order to protect the title : Ibid. 
 
 286. A right of way: Wheve, in pursuance 
 of an agreement between owners of adjoin- 
 ing buildings, a stairway was erected upon 
 tfie premises of one of them to be used in 
 common, and such premises were afterward 
 conveyed to a third person with covenants of 
 warranty, held, that the right of the owner 
 of the adjoining building to the use of the 
 stairway constituted an incumbrance, and 
 was a breach of the covenant against incum- 
 brances : MeGowen v. Myers, 60-256. 
 
 287. The right of way for a railroad is 
 an incumbrance and a breach of the covenant 
 against incumbrances : Barlow v. McKinley, 
 24-69 ; Gerald v. Elley, 45-332. 
 
 288. But the fact that a railroad company 
 is in the use and exercise of ownership of a 
 right of way over land does not establish a 
 right nor raise a j)resumption of a right 
 thereto, and does not of itself constitute an 
 incumbrance : Jerald v. Elly, 51-321. 
 
 289. One who conveys with covenants 
 against any incumbrances by himself does not 
 become liable on his warranty for convey- 
 ance of a right of way by a former owner : 
 ^rown V. Young, 69-625. 
 
 290. Lease: The existence of a valid lease 
 upon the premises at the time of the execu- 
 tion of a deed, conveying the same with gen- 
 eral covenant of warranty, is a breach of 
 such warranty, and entitles the grantee to 
 recover at least nominal damages : Van Wag- 
 ner V. Van Nostrand, 19-422. 
 
 291. Where the grantee undertakes or- 
 ally to pay the incumbrance at the time of 
 the sale he cannot afterward recover for a 
 breach of the covenant against incumbrances 
 on account of such incumbrance : Wachen- 
 dorfv. Lancaster, 66-458. 
 
 292. So also where the covenantor fur- 
 nished the covenantee suiHcient money to 
 discharge the incumbrance, and the cove- 
 nantee undertook to discharge it, held, that 
 tlie covenant was satisiied : Blood v. Wilkins, 
 48-565. 
 
 293. Acquisition of incumbrance by 
 grantor; estoppel: The grantor of premises 
 subject to a mortgage, such mortgage not 
 being excepted from the covenants of the 
 deed, is estopped from afterwards setting the 
 
 mortgage up against his grantee or any one 
 holding under him. The acquisition of the 
 mortgage by the grantor will amount to a 
 satisfaction thereof: Johnson v. Walter, GO- 
 SIS. 
 
 294. Mortgage excepted from covenants: 
 A party who purchases with notice of a 
 mortgage which is expressly excepted in the 
 covenant of the deed against incumbrances 
 has no right of action against his gi-antor 
 and no right of subrogation against other se- 
 curity held by the mortgagee in the event of 
 a foreclosure of such mortgage : Morrison v. 
 Morrison, 38-78. 
 
 295. Technical incumbrance; numiual 
 damages: Where in the foreclosure of a 
 mortgage the lessee of the premises whose 
 lease was subsequent to the mortgage was 
 not made a party, held, that the purchaser at 
 the foreclosure sale acquired all the rights 
 of the mortgagor as against the lessee, and 
 that upon conveyance by such purchaser 
 with warranty, his grantee acquired all his 
 riglits, and that the existence of such lease 
 constituted, thereafter, but a technical breach 
 of warranty entitling the grantee of tlie exe- 
 cution purchaser to nominal damages only : 
 Downard v. Groff, 40-597. 
 
 29C. Knowledge by grantee of existence 
 of incumbrance: The fact that the grantee 
 has knowledge of the existence of an incum- 
 brance does not defeat his right to recover 
 damages for such incumbrances in an action 
 for breach of covenant against incumbrances: 
 Van Wagner v. Van Nostrand, 19-422 ; Bar- 
 low V. McKinley, 24^69; McGowenv. Myers, 
 60-256 ; Myers v. Mimson, 65-423. 
 
 297. So held in regard to right of way for 
 a railway; Barlow v. McKinley, 24r-69; 
 Gerald v. Elley, 45-322. 
 
 298. Detaining purchase money: If cov- 
 enants of seizin or covenants of warranty 
 have been broken, the purchaser may detain 
 the purchase money in sufficient amount to 
 make good any damages sustained by the 
 breach. He will not be turned over for his 
 indemnity to a seijarate action on the cove- 
 nants of the deed when the rights of both 
 parties may be determined in the same action : 
 Brandt r.. Foster, 5-287. 
 
 299. The party will be allowed in such case 
 to make his defense at law, and if he has had 
 no opportunity to do so, a court . of equity 
 
CONVEYANCES, V, b. 
 
 359 
 
 Covenants. — Breach,' remedies. 
 
 will not hesitate to gi-ant relief according to 
 the circumstances of the case : Ibid. 
 
 300. If there are no covenants in the deed, 
 then there would be no failure of considera- 
 tion by reason of any failure or defect in the 
 vendor's title. But if the covenants are 
 general and unlimited, reaching to title as 
 well as to possession, the consideration of the 
 purchase is the present transfer of the 
 vendor's interest, and the covenants of title 
 contained in the deed : Ibid. 
 
 301. Breach of waiTanty may be set up 
 as a defense to an action to recover the pur- 
 chase money : Ruddick v. Lloyd, 15-441. 
 
 302. A purely technical defect in the title 
 will not entitle the grantee, ujjon foreclosure 
 of a mortgage for the purchase money, to a 
 rebate of interest until a correction of the 
 same, where he has remained in the undis- 
 turbed possession and use of the premises : 
 Gifford V. Fergunon, 19-166. 
 
 303. Failure of grantee to pay a portion dl 
 the purchase money due will not excuse the 
 grantor for failure to pay off an incumbrance 
 on the premises against which he is bound by 
 his covenants : McGrary v. Deming, 38-527. 
 
 And further see Vendors, §§ 66-80. 
 
 304. Set-oflf: In an action for breach of 
 covenant, the grantor cannot set off the 
 amount of an indebtedness on the premises 
 which grantee has undertaken to pay, under 
 an agreement by which the grantor would be 
 liable to the grantee for the amount paid: 
 Ibid. 
 
 305. Pleading: In an action upon breach 
 of covenant of seizin, it is sufficient to nega- 
 tive the words of the covenant, and it is not 
 necessary to show wherein the grantor was 
 not lawfully seized: Socum v. Haun, 36-138. 
 
 306. Burden of proof of seizin: Where 
 defendant, in an action for breach of cove- 
 nant of seizin, avers seizin at the time of 
 conveyance, the burden of proof is cast upon 
 him to. establish the same : Schofield v. Iowa 
 Homestead Co., 33-317 ; Barker v. Kuhn, 38- 
 392 ; Blackshire v. Iowa Homestead Co. , 39- 
 624; Boon v. McHenry, 55-203; Swafford v. 
 Whipple, 3 G. Gr., 261. 
 
 307. So, if plaintiff alleges that defendant 
 was not seized and was not the lawful owner, 
 which allegation is put in issue by a denial, 
 the burden rests upon defendant to show 
 seizin. Such answer amounts to an afiBrma- 
 
 tive averment of title: Jerald v. Elly, 51- 
 331. 
 
 308. Where the vendee sued to recover 
 damages for breach of warranty, and alleged 
 a sijecific breach in that when he attempted 
 to take possession of the land he found an- 
 other in possession under a prior purchase 
 from the defendant, and defendant simply 
 denied the allegation of the petition, the bur- 
 den of proving the fact constituting the 
 breach of warranty was held to be upon the 
 plaintiff : Wilson v. Irish, 63-260. 
 
 309. Burden of proof as to incumbrance: 
 Where plaintiff alleges the existence of an 
 incumbrance, which is denied by defendant, 
 the burden of proof is upon plaintiff : Jerald 
 V. Elly, 51-331. 
 
 310. Parol evidence of satisfaction: A 
 party cannot, by parol, engraft an exception 
 upon the terms of a covenant in order to 
 show that the damages arising from a breach 
 thereof have been settled and discharged by 
 an assignment, even if, as averred, the con- 
 tract and assignment are parts of the same 
 transaction : Myers v. Munson, 65-433. 
 
 311. Effect of verdict: When action for 
 the use of premises is brought against an oc- 
 cupant, who gives notice to his grantor with 
 warranty to defe"nd, the latter will be bound 
 by any verdict rendered, and therefore is en- 
 titled to bring suit to enjoin the action and 
 have the title determined : Gardner v. Cole, 
 31-205. 
 
 312. Notice to grantor to remove the 
 cloud : Where the legal title at the time of 
 conveyance is in a third person holding the 
 same by fraud, while such facts constitute a 
 breach of covenant, yet the grantee before 
 bringing action against such third person to 
 quiet title, with the intention of holding his 
 grantor liable on his covenants, should give 
 notice to such grantee in order that he may, 
 if he sees fit, bring such action or secure the 
 removal of the cloud upon the title : Yokum 
 V. Thomas, 15-67. 
 
 313. Judgment as evidence: The judg- 
 ment in an action for breach of warranty 
 against a covenantor, of which action the 
 prior covenantor has notice, may be intro- 
 duced as evidence in a subsequent action 
 against such prior covenantor, to establish 
 the existence of a breach of covenant and for 
 the purpose of determining the amount of 
 
360 
 
 CONVEYANCES, V, 
 
 Measure of damages for breach of covenant. 
 
 damages, which may be different from that 
 recovered in the first action : Myers v. Mun- 
 son, 65-433. 
 
 314. Estoppel: Certain facts TieW not suffi- 
 cient to estop plaintifif from suing for breach 
 of covenant of warranty : Ballard v. Burrows, 
 61-81. 
 
 315. Correction of mistake: In an action 
 at law for the breach of a covenant in a deed, 
 the deed roust govern ; but if by mistake, 
 accident or fraud, it does not correctly recite 
 the contract between the parties, it may be 
 corrected by a court of equity : Van Wagner 
 V. Van Nostrand, 19-433. 
 
 Pleading': As to how breach of covenant 
 is pleaded, see Pleadings, §§ 99-101. 
 
 c. Measure of damages. 
 
 316. Nominal damages: There can be no 
 recovery for breach of covenant of seizin be- 
 yond nominal damages, until some substan- 
 tial loss occurs : Boon v. McHenry, 55-202. 
 
 317. Where there is a breach of the cov- 
 enant of seizin by reason of failure of title 
 resulting from an informality in the execu- 
 tion of the deed, which could be corrected at 
 the expense of the grantor, and which does 
 not cause a disturbance of the purchaser's 
 possession, the damages for such breach are 
 limited to nominal damages only: Nosier v. 
 Hunt, 18-212. 
 
 318. "Where there has been only a tech- 
 nical breach of warranty, grantee will be en- 
 titled to only nominal damages : Dovmard v. 
 Graff, 40-597. 
 
 319. Where the grantee does not show any 
 actual or threatened disturbance of posses- 
 sion, and does not offer to return the land so 
 as to become entitled to recover the con- 
 sideration paid, the recovery for breach of 
 covenants of warranty can be for only nom- 
 inal damages : Norman v. Winch, 65-263. 
 
 320. Expense of perfecting title: Any 
 expenditure which the grantee has reasonably 
 incurred in procuring his title, not exceeding 
 the purchase money and interest, may be re- 
 covered from the grantor : Knadler v. Sharp, 
 36-232. 
 
 321. Where the grantee in a warranty 
 deed afterward, to prevent eviction, buys in 
 a paramount title, he may recover fx-om his 
 grantor in the deed for breach of warranty, 
 
 and his damages will be the amount actually 
 paid out for such paramount title, not exceed- 
 ing, however, the consideration mentioned 
 in the original deed. He cannot in any event 
 recover more than the amount necessarily 
 paid in perfecting the title : Richards v. Iowa 
 Homestead Co., 44^304; Brandt v. Foster, 5- 
 387. 
 
 322. The vendee has a right to yield to 
 and acquire the superior title, and having 
 done so, he may resort to the covenants of 
 warranty for the recovery of the amounts 
 expended, not exceeding the consideration 
 money and interest received by the person 
 under whom he claims title : Soyer v. Fas- 
 ter, 63-321. 
 
 323. The amount necessarily expended in 
 perfecting the title is the amount which may 
 be deducted by the grantee from the pur- 
 chase money, if not already paid : Brandt v. 
 Foster, 5-387. 
 
 324. But where the breach of covenant of 
 seizin is interposed as showing partial want 
 of consideration by way of defense to a pur- 
 chase money note drawing a higher ralte of 
 interest than six per cent., the damage re- 
 sulting from the breach should be deducted 
 from the face of the note and interest allowed 
 only on the balance : Zent v. Picken, 54^535. 
 
 325. The same measure of damages is ap- 
 plicable in case of a vendee in possession 
 under a title bond : Baker v. Corbett, 28-317. 
 
 326. The proof that the expenditure in 
 perfecting the title was reasonable must 
 come from the grantee seeking to recover : 
 Fawcett v. Woods, 5-400. 
 
 327. In case of breach of covenant against 
 incumbrances, the grantee should only be 
 allowed to recover the amount reasonably 
 paid to remove the incumbrance : Outhrie v. 
 Russell, 46-269. 
 
 328. The measure of damages in such case 
 is not the amount of the incumbrance but 
 the amount actually paid : Swartz v. Ballou, 
 47-188. 
 
 329. The grantee has the right to discharge 
 an incumbrance and set off the amount 
 against the purchase money notes; and it 
 seems that when the purchase money is not 
 all paid, it is the duty of the purchaser to dis- 
 charge a lien rather than let the property go 
 to sale : Harper v. Dotson, 43-232. 
 
 330. Under the covenant against incum- 
 
CONVEYANCES, V, c. 
 
 361 
 
 Measure of damages for breach of covenant. 
 
 brancee, the grantor must pay a sum of 
 money sufficient to put the grantee in as 
 good a state as if the gi-antor had kept his 
 covenant: Funk v. Creswell, 5-63; Kosten- 
 dader v. Pierce, 37-645. 
 
 331. If the incumbrance is not extin- 
 guished, the gi'antee can recover nominal 
 damages only, but he is not required to wait 
 until he is evicted before suing on the cove- 
 nant: Funk V. Creswell, -5-62. 
 
 332. Easement: In determining the amount 
 of damages where the breach of covenant 
 consists in the existence of a permanent ease- 
 ment, the covenantee becomes entitled imme- 
 diately to receive from the covenaijtor such 
 a sum of money as would be a just compen- 
 sation for the injury, in determining which 
 the reduction in the value of the property by 
 reason of the easement should be considei-ed. 
 The general market value of the property 
 should be estimated and the estimate should 
 be made as of the time of the breach, legal 
 interest being added to the damages from 
 that time : Myers v. Munson, 65-i33. 
 
 333. Where the incumbrance consists of a 
 permanent easement for a stairway, etc., the 
 damages resulting should be substantially in 
 proportion to the value of the property thus 
 occupied: Ibid. 
 
 334. In case of snccessive conveyances, 
 ■with a covenant against incumbrances, and a 
 breach of the covenant by reason of a per- 
 manent easement, the second covenantee 
 would be entitled to recover more than the 
 first, tf the property had increased in value : 
 Ibid. 
 
 335. Right of way: Where action was 
 brought for damages resulting from a breach 
 of covenant by reason of the existence of a 
 right of way for a railway over the premises, 
 held, that in determining the damage to be 
 allowed, the relative value of the land as it 
 would have been without the right of way, 
 and what it was with the right of way, 
 should be taken iato account in determining 
 what proportion of the actual purchase price 
 should be allowed as damages : Koestenbader 
 k Peirce, 41-204. 
 
 336. P\irther, held, that in estimating the 
 damage suffered, all benefit to the land by 
 reason of the construction of the railroad 
 over such right of way should be excluded : 
 Ibid. 
 
 337. Consideration money: In an action 
 for damages for breach of 'warranty, the 
 measure of recovery is the consideration 
 money actually paid and the legal interest 
 thereon: Swafford v. Whipple, 3 G. Gr., 261. 
 
 338. The mere fact that there was an out- 
 standing superior title at the time of the con- 
 veyance, which has never been hostilely as- 
 serted, will not authorize the recovery of the 
 consideration money : Wilson v. Irish, 63-360. 
 
 339. The real consideration may be 
 shown to prove the damages, even in contra- 
 diction to the deed, but it cannot be shown 
 that the consideration was not wholly or in 
 part received by the covenantor or for his 
 use : Bloom v. Wolfe, 50-286. 
 
 340. If the consideration of the convey- 
 ance is personal property, in determining the 
 recovery for breach of warranty regard 
 should be had to the value of the considera- 
 tion as fixed upon by the parties at the time 
 of the trade, rather than its actual value: 
 Williamson v. Test, 24-138. 
 
 341. In an action by subsequent trans- 
 feree : As between the original parties to the 
 deed, the damages for breach of covenant 
 are hmited to the actual consideration paid, 
 and parol proof is admissible to contra- 
 dict the statement of consideration in the 
 deed ; but such evidence is not admissible in 
 an action by a subsequent transferee from the 
 grantee, and the measure of damages in an 
 action by such transferee is the value of the 
 land with sis per cent, interest from the time 
 of purchase from his grantor, the considera- 
 tion mentioned in the original deed being 
 taken as a conclusive admission by the 
 grantor therein that such is the value : Short- 
 hill V. Ferguson, 44-249. 
 
 342. Proportional recovery: Where 
 plaintiff, being the grantee of certain prop- 
 erty, sought to recover for breach of warranty 
 against incumbrances and of title from the 
 grantor of his grantor, and it appeared that 
 the property involved was only a portion of 
 the property conveyed by defendant to plaint- 
 iff's immediate grantor, held, that plaintiff 
 could recover only such proportion of the en- 
 tire consideration received by defendant as 
 plaintiff's portion bore to the whole property, 
 and that the burden of proof was upon plaint- 
 iff to show what that amount was: Mischke 
 V. Baughn, 52-528. 
 
362 
 
 CONVEYANCES, V, c, d. 
 
 Measure of damages. — Covenants running with the land. 
 
 343. Where, subsequently to a conveyance 
 of property in a city, the city established its 
 right to a portion of the premises as a street, 
 held, that the measure of damage was the 
 proportion of the purchase price which 
 the part taken bore to the entire tract, the 
 grantee having been allowed to remove the 
 improvements from the pai-t taken to 
 the other portion, and that he might recover 
 also the expense of such removal and the de- 
 terioration of the improvements by reason 
 thereof : McDunn v. Des Moines, 39-286. 
 
 344. Partial failure of title: In an action 
 for breach of warranty in a deed conveying 
 land purchased from the county as swamp 
 land, and which appeared not to have been 
 certified by the United States land office as 
 swamp, held, that although title might be 
 perfected by proof of the actual swampy , 
 character of the land, nevertheless plaintiff 
 had a right under the covenants to a title not 
 subject to such contingency, and might re- 
 cover the same damages to which he would 
 have been entitled if th^ failure of title had 
 been absolute: Shorthill v. Ferguson, i4r- 
 249. 
 
 345. Attorneys' fees: A party recovering 
 damages for breach of warranty is only en- 
 titled to recover attorneys' fees incurred in 
 defending an action to maintain his title 
 where he sliows the amount of such fees 
 actually paid, or which he is under obUga- 
 tion to pay. That he shows a certain sum 
 would be reasonable is not sufficient : Swartz 
 V. Ballou, 47-188. 
 
 346. In an action by a covenantee against 
 ' his covenantor to recover for breach of con- 
 tract by reason of which the covenantee has 
 already, in a prior action, been deprived of 
 his possession of the premises, of which 
 action the covenantor had notice, it may be 
 that the covenantee should be allowed to re- 
 cover for attorneys' fees expended in defend- 
 ing the former action. But where the prior 
 action was not for possession, but rnerely for 
 damages, the recovery in the subsequent ac- 
 tion should not include attorneys' fees ex- 
 pended in defending the prior action, even 
 though the covenantor Jiad knowledge of 
 such action : Myers v. Munson, 65-423. 
 
 Contract to convey, measure of damages 
 for breach of covenant in, see Vendors, 
 §114. 
 
 d. Covenants running with the lamd. 
 
 347. Seizin : -In this state, the English rule 
 has been i-ecognized that the covenant of 
 seizin runs with the land and is for the ben- 
 efit of the party who may be the owner 
 when a substantial breach occurs: Boon v. 
 McHenry, 55-202. 
 
 348. A covenant of seizin runs with the 
 land, and a recovery for a breach thereof may 
 be had by the assignee of the grantee : Soho- 
 fleld V. Iowa Homestead Co., 32-317. 
 
 349. Such a covenant does not become 
 barred by the statute of limitations until the 
 expiration of the period of limitation after 
 the breach : Wood v. Dubuque & S. C. E. Co., 
 28 Fed. Rep., 910. 
 
 350. Liability to subsequent grantees: 
 "Where, by agreement between the grantor 
 and the grantee, the former conveyed the 
 premises to a third person as security for a 
 debt of the grantee, and such third person 
 upon payment of the debt conveyed to the 
 original grantee, held, that the original 
 grantor was bound to such last grantee by 
 the covenants contained in the deed to the 
 third person : Barker v. Kuhn, 38-392, 
 
 351. A grantor who becomes Uable ob 
 covenants running with the land is charged 
 with notice of subsequent conveyances or in- 
 cumbrances of record, and cannot, by settle- 
 ment with his immediate grantee, cut off the 
 claims of subsequent parties : Devin v. Hen- 
 dershott, 32-192. 
 
 362. Proportional recoYcry: Covenants 
 running with the land are susceptible of 
 division, so that if the land be conveyed to 
 several persons, each may maintain an action 
 to recover for the land in which he has an 
 interest: Scliofield v. Iowa Homestead Co., 
 32-317. 
 
 353. Conveyance of trustee: Where a deed 
 is executed to one other than the purchaser 
 to secure the purchase money, he holds the 
 title in trust for the purchaser, who has 
 the equitable title, and the covenants of 
 warranty may be canceled or enforced by 
 the grantee in the deed: Harper v. Perry, 
 28-57. 
 
 351. The grantee in atrnst deed holds the 
 legal title and may recover for breach of cov- 
 enajit running with the land. The mortgagee 
 is entitled to the benefit of covenants in the 
 
CONVEYANCES, V, e — CORPORATIONS. 
 
 363 
 
 Who liable on covenants. 
 
 mortgagor's deed : Devin v. Hendershott, 33- 
 193. 
 
 355. Mortgagee : And the same is true of 
 a mortgagee: Rose v.Sehaffrier, 50-483. 
 
 356. A mortgagee who has foreclosed and 
 bid in the property for the full amount of his 
 judgment cannot, in an action on the cove- 
 nants in the mortgage, recover money paid to 
 release the property from a prior incum- 
 brance : Todd V. Johnson, 51-198. 
 
 e. Who liable on covenants. 
 
 357. A married woman is liable for a 
 breach of warranty in a sale of her own land 
 as if single : Richmond v. Tibbies, 26-474. 
 
 358. "Where it appears that a deed, exe- 
 cuted by husband and wife jointly, was in- 
 tended by the parties as a deed of the hus- 
 band, in which the wife joined to relinquish 
 dower, she will not be bound by the cove- 
 nants thereof: Schaffner v. Cfrutzmaeher, 
 «-187. 
 
 359. The statutory provision (Code, § 1987) 
 that where husband or wife joins in convey- 
 ance of property owned by the other, the 
 party so joining shall not be bound by the 
 covenants unless it is expressly so stated, 
 applies where the person purporting to con- 
 vey the title has" no title, as well as where he 
 is in fact the owner but his title is subject to 
 incumbrances in violation of his covenants. 
 In either case the husband or wife so joining 
 is not estopped from relying upon an out- 
 standing title or incumbrance inconsistent 
 with the conveyance in which he or she 
 joins : Thompson v. Merrill, 58-419. 
 
 360. The fact that the land conveyed is not 
 •owned by the husband does not render the 
 wife liable to any greater extent under the 
 covenants of the deed than if it had been 
 owned by him, in case the title is not in her, 
 and such covenants will not work an estoppel 
 as to her : Ibid. 
 
 361. Trustees: A trustee in conveying 
 land which is the subject of the trust cannot 
 be required to enter into any covenant except 
 against his own acts ; but if he binds himself 
 by a personal covenant, even if he describes 
 himself as trustee, he is liable to the same ex- 
 tent as if the property were held and con- 
 veyed in his own right: Bloom v. Wolfe, 50- 
 286. 
 
 362. Guardian : "Where the guardian of a 
 minor, by proper leave of court first obtained, 
 executed a conveyance in which she cov- 
 enanted for herself, her heirs, etc. , that she 
 was authoi-ized, etc., held, that she was 
 bound by such covenants personally and 
 thereby estopped from asserting any claim 
 to the property inconsistent with her grant : 
 Foster v. Young, 35-27. 
 
 363. An administrator conveying land 
 in pursuance of a judicial sale thereof by 
 order of court cannot bind the estate by 
 covenants in the deed. The rule of caveat 
 emptor applies to such sale: Hale v. Mar- 
 quette, 69-376. 
 
 364. Covenants on part of grantee be- 
 come binding upon him by acceptance of the 
 deed although he does not sign it : Close v. 
 Burlington, C. R. & N. R. Co., 64-149. 
 
 COKONEK, 
 
 See Municipal Cobporations, §g 968-974. 
 
 CORPORATIONS. 
 
 I. Nature; charter; organization. 
 ai Kinds of. 
 
 b. Charter; organization, eta. 
 
 c. Corporate name. 
 
 d. Place of doing business, 
 11. Stock. 
 
 a. Subscriptions, 
 
 b. Transfer, 
 o. Assessment. 
 d. Attachment. 
 
 III. Officers. 
 
 a. Election. 
 
 b. Powers and acts. 
 
 c. Liability. 
 
 d. Compensation. 
 
 IV. Corporate acts and liabilities. 
 
 a. Powers. 
 
 b. Acts tdtra vires. 
 
 c. Liabilities; levy upon corporate 
 
 property. 
 V. Liability of stockholders. 
 VI. Renewal; dissolution: forfeiture. 
 
 As to unincorporated associations, see AS- 
 SOCIATIONS. 
 As to Banks, see that title. 
 
364 
 
 CORPORATIONS, I, a, b. 
 
 Nature; charter; organization. 
 
 I. Nature; chaetee; 
 
 OEGANIZATION. 
 
 a. Kinds of. 
 
 1. Public or private; bank: An incorpo- 
 rated bank, the stock of which is owned by 
 individuals, is a private corporation in which 
 the public has no interest, and over which it 
 has no control except to exercise a supervi- 
 sory power and to annul its charter when the 
 franchise granted is misused or abused: 
 Miners' Bank v. United States, 1 G. Gr., 553. 
 
 2. Agricultural society: The main dis- 
 tinction between public and private corpora- 
 tions is that the general assembly has the 
 exclusive and unrestricted control of the for- 
 mer, while it can in no manner interfere 
 with the right of property in the latter. 
 Thus, though the objects of an agricultural 
 society are public, it is essentially a private 
 corporation. The fact that it is not organ- 
 ized for pecuniary profit does not change its 
 character : Thompson v. Lambert, 44-239. 
 
 3. The state niiiversity is not a corpora- 
 tion. The act creating it did not make it a 
 public corporation, but its property belongs 
 to the state and is simply appropriated for 
 the purpose specified. It is not, therefore, 
 subject to be sued, and a judgment cannot be 
 rendered against it : Weary v. State Univer- 
 sity, 42-835. 
 
 4. Trustees of public institutions: Where 
 by statute provision v/as made for a normal 
 school under trustees to be appointed by pub- 
 lic authority, and it was provided that cer- 
 tain portions of the income of the state uni- 
 versity should be applied to the support of 
 such school, held, that such trustees did not 
 constitute a corporation and could not be 
 sued as such: Drake v. Board of Trustees, 
 11-54. 
 
 6. Voluntary associations: It is the ex- 
 clusive prerogative of government to create 
 a corporation and invest it with power to 
 sue in its own name, and courts cannot rec- 
 ognize an association not authorized by char- 
 ter to act as a corporation : Pipe v. Bateman, 
 1-369. 
 
 b. Charter^ organization, etc. 
 
 6. Vested rights: The charter of a private 
 corporation cannot be repealed by the legis- 
 lature unless such right of repeal is stipulated 
 
 for in the charter itself: Miners' Bank v. 
 United States ex rel., Mor., 482. 
 
 7. Foreign: Corporations operating rail- 
 ways within the state are subject to the ju- 
 I'isdiction of our courts the same as any 
 person resident within the state : Mooney v. 
 Union Pacific R. Co., 60-346. 
 
 8. When two corporations, one organized 
 under the laws of the state of Iowa, and the 
 other under the laws of the state of Mis- 
 souri, consolidated in the state of Iowa, held, 
 that the corporation thus formed would be re- 
 garded as an Iowa corporation: Muller v. 
 Dows, 94 TJ. S., 444. 
 
 9. Acls of Incorporation, in a particular 
 case, held sufSoient to constitute a corpora- 
 tion authorized to receive, hold and convey 
 land granted for the purpose of the incorpo- 
 ration : Hervey v. Buchanan, 47-588. 
 
 10. Failure to publish notice: It seems 
 that acts of a corporation will not be valid as 
 corporate acts unless publication of notice of 
 the organization is made as required by law: 
 Eisfeld V. Kenworth, 50-389. 
 
 That failure to take the requisite steps for 
 organization will render the corporators 
 Uable, see infra, §§ 172, 173. 
 
 11. Persons dealing with estopped from 
 setting up defects: The execution of a note 
 to "a corporation is an admission of its exist- 
 ence: Franklin V. Twogood, 18-515. 
 
 12. Under a statute (Code, § 1089) provid- 
 ing that want of legal organization cannot 
 be set up as a defense either by the corpora- 
 tion, or by a person against whom suit is 
 brought by such corporation, on a contract 
 made with it, or for an injury to its property, 
 or a wrong done to its interest, held, that a 
 party contracting with a corporation could 
 not deny its corporate existence, nor defeat 
 recovery thereon, by proof of violation of the 
 laws of the state in the conduct of its busi- 
 ness: Howe Machine Co. v. Snow, 32-433; 
 Courtright v. Deeds, 37-508. 
 
 13. Also held, that a person sued upon a 
 contract with a corporation could not set up 
 want of legal organization : Washington Col- 
 lege V. Duke, 14-14. 
 
 14. When a corporation seeks to enforce 
 the bequest in a will, duly admitted to pro- 
 bate, its claim cannot be resisted on the 
 ground that it has not been legally .organ- 
 ized. Such objection can be taken only by a 
 
CORPORATIONS, I, b, c. 
 
 365 
 
 Charter ; organization, etc. — Corporate name. 
 
 proceeding by quo warranto: Quinn v. 
 Shields, 63-129. 
 
 15. Corporation estopped: Among acts 
 which would constitute acting as a corpora- 
 tion, such as by statute would prevent the 
 corporation from denying its legal existence, 
 would be the adoption and use of a corporate 
 seal, the taking of subscriptions and the issue 
 of certificates of stock ; but the acts of per- 
 sons as members of a religious society in 
 holding business meetings, and acquiring 
 property, receiving and paying out money, 
 appointing agents to make settlements, etc. , 
 held not sufficient to constitute such " acting 
 as a corporation ;'' also held, that the passage 
 of by-laws is not an assumption of distinctive 
 corporate powers ; nor is the attempt to in- 
 corporate: Kirkpatrick v. United Fresb. 
 Church, 63-372. 
 
 1 6. Where the corporation has assumed to 
 make a contract authorized by its amended 
 articles, and has received the consideration 
 therefor, it cannot escape liability upon the 
 ground that such amended articles had not 
 been recorded : Humphrey v. Patrons', etc. , 
 Ass'n, 50-607. 
 
 1 7. The fact that a member of the board of 
 directors has been irregularly elected consti- 
 tutes no defense in an action against the cor- 
 poration for indebtedness created : Carroth- 
 ers V. Newton Mineral Spring Co., 61-681. 
 
 18. The estoppel provided for by statute 
 certainly applies only to a body of men act- 
 ing as a corporation for pecuniary profit. 
 Whether the section can be applied to persons 
 acting as a corporation other than for pecun- 
 iary profit, quoere: Kirkpatrick v. United 
 Presb. Church, 63-372. 
 
 19. Renewal of charter: Whether the 
 provisions of statute as to renewal of charter 
 are applicable to corporations not organized 
 for pecuniary profit, gMcere; Byersv. McCart- 
 ney, 62-339. 
 
 20. Binding npoii stockholders not as- 
 senting': A change in the articles of incor- 
 poration made in the manner provided for 
 therein, and properly recorded and published, 
 is as binding uponithe stockholders who do 
 not as upon those who do consent thereto : 
 Burlington db M. R. R. Co. v. Wliite, 5-409. 
 
 21. Change of business; effect upon sub- 
 scription to stock : If a corporation procures 
 an alteration to be made in its charter by 
 
 which a new and different business is super- 
 added to that originally contemplated, such 
 of the stockholders as do not assent to the 
 alteration will be absolved from liability on 
 their subscriptions to the capital stock : Ibid. 
 
 22. But where a change in the charter 
 merely related to the time of payment of 
 instalments of subscriptions to stock, held, 
 that by the subscription under the charter 
 the subscriber assented to the change after- 
 ward made in pursuance of such provisions : 
 lUd. 
 
 2.?. A material or radical change in the 
 objects of a corporation will release the sub- 
 scriber of stock from liability thereon, but 
 immaterial changes which cannot possibly 
 prejudice such subscriber wiU not affect 
 him: Union Agl., etc., Ass'r. v. Neill, 31-95. 
 
 24. An amendment to a charter not ma- 
 terially changing the original purposes of 
 the corporation, held not sufficient to ex- 
 cuse stockholder from liability for stock sub- 
 scribed: Peoria & R. I. R. Co. v. Preston, 
 35-115. 
 
 25. Amendments to the articles of incor- 
 poration of a college in accordance with 
 provisions made therein for amendment, af- 
 fecting the method in which trustees were 
 to be appointed, but not the general purposes 
 and objects of the corporation, held not 
 sufficient to release the maker of a scholar- 
 ship note from his liability thereon : Wash- 
 ington College v. Duke, 14-14. 
 
 c. Corporate name. 
 
 26. A variance from the true style of a 
 corporation will not have the effect to defeat 
 its contract if it appears that the corpora- 
 tion was intended to be bound by and de- 
 scribed in the instrument : Athearn v. Inde- 
 pendent Dist., 33-105. 
 
 27. Where a note was made payable to the 
 order of " The Equitable Life Insurance Com- 
 pany of Iowa at its office," and was dated at 
 the " Office of the Equitable Life Insurance 
 Company, Des Moines, Iowa," held, that 
 although the two names were not identical, 
 yet it was reasonably apparent that they re- 
 ferred to the same corporation : Equitable L. 
 Ins. Co. V. Gleason, 56-47. 
 
 28. Where the name of the corporation 
 consists of a number of words, the omission, 
 
366 
 
 CORPORATIONS, I, d; II, a. 
 
 Place of doing business.— Stock. 
 
 alteration, or transposition of any of the 
 words in the name used, if the words in the 
 name used are synonymous with the true 
 name of the corporation, it is not a misno- 
 mer: Martin V. Central Iowa R. Co., 59^11. 
 
 29. The use of the word " railroad " instead 
 of "railway " in naming a corporation in au 
 indictment for embezzling the funds of such 
 corporation, held not to be material : State v. 
 Goode, 68-593. 
 
 30. A railroad company cannot, in a legal 
 proceeding, be properly designated by the 
 initial letters of the words constituting its 
 name, even though it may be possible to show 
 that it is popularly known by its initial let- 
 ters: Accola V. Chicago, B. & Q. R. Co., 
 70 . 
 
 31. Change of name: Where a note given 
 in aid of a corporation operating a college 
 provided that upon the payment of a propor- 
 tion of the note a scholarship in the college 
 should be issued, and afterward the corporate 
 name of the institution was changed, held, 
 that the new corporation succeeding to the 
 rights of the old might sue upon such note, 
 and the maker would be entitled to a scholar- 
 ship therein according to the same terms: 
 Trustees of Northwestern College v. Sohwag- 
 ler, 37-577. 
 
 32. The corporate name is that which is 
 adopted in the articles of incorporation. If 
 the name Is changed it must be done by 
 changing the articles, and the best evidence 
 as to the contents of the articles is the articles 
 themselves ; therefore, held, that parol evi- 
 dence of a change of name was not sufficient: 
 Chicago, D. & M. B. Co. v. Keisel, 43-39. 
 
 d. Place of doing business. 
 
 33. Office outside of state: Even though 
 the articles of incorporation require the office 
 of the company to be kept in the state where 
 it is incorporated, yet if it violates this re- 
 quirement and keeps its office in another 
 state, presentment there for payment of a 
 note of the company will be sufficient : Mer- 
 rick V. Burlington, etc.. Plank Road Co., 
 11-74. 
 
 34. Acts outside of state: The fact that 
 a certificate of stock of a corporation organ- 
 ized under the laws of this state appears to 
 have been issued at a place outside of the 
 
 state, will not necessarily render it invalid : 
 Courtright v. Deeds, 37-503. 
 
 3.5. While a private corporation whose 
 charter ha-s been granted by one state cannot 
 hold meetings, pass votes, and exercise 
 powers in another state, yet the persons in- 
 trusted with the management of its affairs 
 may make a valid contract in a state other 
 than that of its creation, and a conveyance 
 thus made by the agents of the corporation 
 will be valid : Bellows v. Todd, 39-209. 
 
 36. Jurisdiction over: A corporation or- 
 ganized under the laws of the United States, 
 and engaged in the operation of a line of rail- 
 way extending from a point within this state 
 into another state, is a citizen of Iowa in such 
 sense that it is subject to the jurisdiction of 
 the courts of this state: Mooney v. Union 
 Pacific R. Co., 60-346. 
 
 37. Foreign: While every state has power 
 to reserve control over its own corporations, 
 the fact that it does so does not prevent the 
 prosecution within the state of all ordinary 
 business by foreign corporations: Dodge v. 
 Council Bluffs, 57-560. 
 
 38. Where a statute confers upon a cor- 
 poration organized for a particular purpose 
 the right to take private property for that 
 purpose, such authority may be exercised by 
 a foreign as well as a domestic corporation 
 unless expressly limited by statute : Hid. 
 
 39. The right of a corporation to do busi- 
 ness and acquire jDroperty outside of the 
 limits of the state where it is created may 
 exist without any express grant from the 
 legislature of such state : Ibid. 
 
 40. Where the articles of incorporation of 
 a foreign corporation authorized it to con- 
 struct water-works, without expressly limit- 
 ing such power to any particular state, held, 
 that the court could not by construction so 
 limit such power : Ibid. 
 
 II. Stock. 
 a. Subscriptions. 
 
 41. Wliat suilicieut to constitute: A writ- 
 ten subscription for stock implies a promise 
 to pay therefor, although no express promise 
 is contained in the subscription: Nulton v. 
 Clayton, 5^435. 
 
 42. Therefore, held, that a written instru- 
 ment purporting to declare that " the number 
 
CORPORATIONS, II, a. 
 
 367 
 
 stock. — Subscription. 
 
 of shares held by each [of the stockholders] 
 are as follows," amounted to a valid sub- 
 scription: Ihid. 
 
 43. A subscription for stock subject to the 
 by-laws, rules and articles of the corporation, 
 renders the subscriber liable in accordance 
 with the provisions of such by-laws, etc., 
 although the subscription does not contain 
 an express promise to pay : Waukon & M. JR. 
 Co. V. Dwyer, 49-131. 
 
 44. In parol : In the absence of any pro- 
 visions in the charter of the corporation or 
 the statutes of the state as to the manner in 
 which such subscriptions to stock may be 
 entered into, the corporation may contract by 
 parol for the disposal of its capital stock: 
 Colfax Hotel Co. v. I/yon, 69-683. 
 
 45. Repayment not necessary: A sub- 
 scriber to stock in a corporation becomes a 
 stockholder therein before payment is made 
 unless there is a provision requiring prepay- 
 ment as a condition of membership : nor is it 
 necessary that the certificate of stock shall 
 first issue: Waukon & M. R. Co. v. Dwyer, 
 49-121. 
 
 46. Sale below par: The oflScers of a cor- 
 poration cannot, without express authority, 
 sell the stock of the corporation at a less rate 
 than its par value as fixed by the charter : 
 Oliphant v. Woodbum Coal, etc., Co., 63- 
 333. 
 
 47. A creditor who accepts stock issued to 
 him by the ofiioers of the corporation below 
 par in payment of his debt holds the same as 
 urpaid stock to the extent that its par value 
 exceeds his claim : Jackson v. Traer, 64-469. 
 
 48. The public has a right to assume, 
 where the stock of a company has all been 
 issued as full-paid stock, that it has been paid 
 for in full, either in money or in property 
 at a fair value ; but while the fact that full- 
 paid stock has been issued upon a partial 
 payment of its face might be ground for pro- 
 ceeding in the interest of the public to wind 
 up the company, it is not a gi-ound upon 
 which the stockholder who has received paid- 
 up stock can object to the validity of the con- 
 tract for the purchase of such stock : Ooff v. 
 Hawkeye Pump, etc., Co., 63-691. 
 
 49. The ofiicers of the company cannot ac- 
 cept payment of a subscription to stock in 
 property at a price largely in excess of its 
 real value and thereupon issue certificates 
 
 showing the stock fully paid, thus releasing 
 the stockholder from further liability to the 
 corporation or its ci-editors : Osgood v. King, 
 43-478. 
 
 Further as to liability of stockholder for 
 unpaid stock, see infra, %% 177-185. 
 
 50. Release of subscriber: A railroad cor- 
 poration may make, if acting in good faith, 
 a valid and binding contract, releasing a 
 stockholder from liability upon his subscrip- 
 tion to" the stock of the corporation, either 
 with or without the consent of the creditors 
 and stockholders : Gelpcke v. Blake, 19-263. 
 
 51. Stock note; tender of stock: In an 
 action by a corporation upon a note executed 
 in payment for a subscription of shares of 
 stock under an agi'eement in pursuance of 
 which certificates ai'e to be issued when the 
 note is paid, it must appear that tender of 
 the stock was made before the action was 
 brought : Hedge v. Gibson, 58-656 ; Cooper v. 
 MoKee, 49-286 ; Courtright v. Deeds, 37-503 ; 
 Laivrence v. Smith, 50-703. 
 
 52. Overissue or mismanagement as a 
 defense: "Where it does not appear that an. 
 overissue of stock cannot be distinguished 
 from that legally issued, or that the stock 
 when issued to the subscriber will not be 
 legal, or where an overissue of stock has 
 been canceled before the subscriber becomes- 
 entitled to stock- under his subscription, such 
 facts will not constitute a defense in an ac- 
 tion on his subscription, nor will the fact 
 that the affairs of the company are mis- 
 managed be such defense : Merrill v. Reaver, 
 50-404. 
 
 53. But if the stock has been illegally in- 
 creased and the certificates thus issued are 
 beyond the control of the corporation, and 
 the illegal stock cannot be disting-uished from 
 the genuine, and aU the stock is thus ren- 
 dered valueless, these facts will constitute a 
 defense to a note given for stock which has 
 not been delivered : Merrill v. Gamble, 46- 
 615 ; Merrill v. Beaver, 46-646. 
 
 54. Conditional subscription: "Where the 
 articles provided that the corporation should 
 commence as soon as $30,000 of stock was 
 subscribed, and it appeai-ed that $3,000 of 
 stock had been subscribed upon condition, 
 and it was not shown that such subscription 
 had become absolute, and without this stock 
 the requisite amount had not been sub- 
 
368 
 
 CORPORATIONS, II, b, c. 
 
 Stock. — Transfer. — Assessment. 
 
 scribed, held, that an action on other sub- 
 scriptions could not be maintained: Osha- 
 loosa Agl. Works v. Parkhurst, 54^357. 
 
 55. When subscriptions of stock in a rail- 
 road company were made under a special 
 agreement that the proceeds should be ap- 
 plied to a specific object, held, that as the ap- 
 plication of the proceeds as agreed could be 
 made, the payment of the subscriptions 
 might be enforced, although the whole capi- 
 tal stock fixed by the articles had not been 
 subscribed : Iowa & M. R. Co. v. Perkins, 
 28-281. 
 
 56. False representations: Where the 
 subscription of stock was made upon the 
 representation that a certain sum was to be 
 invested in the business as working capital, 
 held, that the fact that such sum was not in- 
 vested would not entitle the subscriber to 
 relief against his contract of subscription: 
 Goff V. Hawkeye Pump, etc., Co., 62-691. 
 
 57. Estoppel: Where a subscriber exe- 
 cuted a note and mortgage for corporate 
 stock, held, that he was estopped from setting 
 up, as a defense to such note, that the charter 
 of the corporation required a cash payment 
 upon each share subscribed: Franklin v. 
 Twogood, 18-515. 
 
 b. Transfer. 
 
 58. ProTisions of by-laws: Shares in the 
 capital stock of the corporation are the prop- 
 erty of and under the control of the share- 
 holder. Even though the by-laws of the 
 association require that in order to constitute 
 a valid transfer the same must be entered 
 upon the stock-book, yet-this does not limit 
 the absolute right of sale and alienation by 
 the stockholder : Hershire v. First Nat. Bank, 
 35-272. 
 
 59. The written assigumcnt and delivery 
 of the certificates of stock, coupled with au- 
 thority to transfer the same upon the books 
 of the company, is sufficient to vest in the 
 transferee the right to the stock : Courtright 
 V. Deeds, 37-503. 
 
 60. The transfer of stock on the books of 
 a corporation upon surrender of a previous 
 certificate, without the issuance of a stock 
 certificate in conformity therewith, is suffi- 
 cient to bind the corporation and third per- 
 sons to such transfer: First Nat. Bank v, 
 afford, 47-575. 
 
 61. Statute provisions: The provision of 
 statute as to the transfer bf shares is intended 
 as a protection to the company, and only ap- 
 plies where the sale or transfer in some way 
 conflicts with the interests of the corpora- 
 tion : Mooar v. Walker, 46-164. 
 
 62. A provision of the by-laws of a corpo- 
 ration, that no transfer of stock shaU be valid 
 unless approved by the board of dii-ectors, 
 may be enforced to protect the rights of the 
 corporation, but cannot be used to defeat the 
 rights of others and operate as a restraint 
 upon the disposition of the stock. The trans- 
 feree may hold the stock and enforce a 
 transfer thereof in proper form in the absence 
 of any right or lien of the company to or 
 upon such stock r Farmers', etc. , Bank v. Was- 
 son, 48-336. 
 
 6.3. Lien: In the absence of contract and 
 provisions of the charter and by-laws, a cor- 
 poration has no implied lien upon the shares 
 of a stockholder indebted to it to secure such 
 indebtedness, and a transfer of stock by such 
 stockholder to secure his individual debt will 
 not be fraudulent as to the corporation in the 
 event that he is indebted to it, and will be 
 valid although not assented to and approved 
 by its directors as required by its by-laws: 
 Ibid. 
 
 0. Assessment. 
 
 64. Before subscription of entire 
 amount: In the absence of any restriction to 
 the contrary, capital stock subscribed may 
 be assessed before the entire amount of the 
 capital stock is subscribed : Nichols v. Bur- 
 lington, etc.. Plank Moad Co., 4 G. Gr., 42. 
 
 65. But where the articles of incorporation 
 fix the amount of capital stock, and the 
 number of shares into which it shall be 
 divided, a corporation cannot make an assess- 
 ment upon the shares of a stockholder for 
 the purpose of carrying on the business of 
 the company until all the stock is subscribed, 
 unless a contrary intention appears expressly 
 or by implication, either in the charter or 
 the contract of subscription : Peoria & B. I. 
 B. Co. V. Preston, 35-115. 
 
 66. Necessary before stockholder be- 
 comes liable: Where the terms of the stock 
 subscription were that after a certain per 
 cent, had been paid, the balance should be 
 Subject to the call of the directors as they 
 
CORPORATIONS, II, d; III, a, b. 
 
 369 
 
 Stock. — Attachment. — OiBcers. 
 
 might be instructed by the majority of the 
 stockholders represented at any regular meet- 
 ing, held, that in the event of insolvency and 
 the neglect or refusal of the stockholders to 
 act in the premises, the court could not com- 
 pel payment by the stockholders lOf such 
 balance until it vras determined vphat indebt- 
 edness existed shovcing a necessity for assess- 
 ment, and a call upon the stockholders had 
 been made : Chandler v. Keith, 43-99. 
 
 And further as to liability of stockholders, 
 see infra, V. 
 
 67. Assessment by court; receiTer: A 
 court has no jurisdiction, in an action against 
 a corporation for the appointment of a, re- 
 ceiver, to vrhich certain stockholders are not 
 made parties, to make an assessment by an 
 interlocutory order against such stockholders 
 on their stock notes. If the stockholders are 
 too numerous to be made parties to the suit, 
 that fact must be set up and made to appear 
 at the inception of the proceedings : Lamar 
 Ins. Co. V. Hildreth, 55-348. 
 
 68. Notice sufficient: An assessment of 
 the stock, where one is necessary, i^ only re- 
 quired in order to fix the amount to be called 
 for and the time when it may be called. 
 When the amount and time of payment are 
 fixed by the articles, a notice that the pay- 
 ment is required is aU that is necessary to 
 render instalments due as therein provided : 
 Waukon <& M. R. Co. v. Divyer, 49-121. 
 
 69. Special conditions: Where a subscrip- 
 tion to stock is made under special conditions 
 in regard to the assessment, payments must 
 be made upon the performance of such con- 
 ditions regardless of provisions of the arti- 
 cles as to assessments on general stock : Iowa 
 & M. R. Co. V. Perkins, 38-281. 
 
 d. Attachment. 
 
 70. How effected: The shares of a stock- 
 holder in a corporation can only be attached 
 by following the provisions of statute (Code, 
 § 2967) requii-ing notice to be served on the 
 president and secretary of the fact that the 
 stock has been attached. Garnishment of 
 the secretary as an individual will not ac- 
 complish the purpose even though he under- 
 stands that an attachment is intended : Mooar 
 V. Walker, 46-164. 
 
 Vol. 1—24 
 
 III. Officers. 
 a. Election. 
 
 71. Facts in a particular case considered 
 in a controversy between conflicting claims 
 of two sets of trustees, each claiming to be the 
 legally elected trustees of a church corpora- 
 tion : Dressen v. Brameier, 56-756. 
 
 b. Powers and acts. 
 
 72. Action of majority : A majority of the 
 quorum of a board of directors, all being 
 present, have the power to act and to decide 
 any question upon which they can act : Buell 
 V. Buckingham, 16-384. 
 
 73. Directors cannot act individually: A 
 corporation whose business is transacted by 
 a board of directors will not be bound by the 
 assent of a majority of the directors to a con- 
 tract expressed otherwise than at a duly con- 
 vened meeting. The assent of the several 
 members separately is not enough : Herring- 
 ton V. District T'p, 47-11. 
 
 74. Implied powers; by-laws: The gen- 
 eral power conferred on a board of directors 
 of a corporation to conduct its afifairs carries 
 with it everjf implied power and right requi- 
 site to carry oiit the general powers. There- 
 fore, held, that the adoption of a by-law by 
 a mutual insurance company providing as to 
 the terms upon which policies should be is- 
 sued would not be without color of authority 
 even in the absence of an express power con- 
 ferred upon the board to make by-laws; 
 Hygum v. ^tna Ins. Co., 11-31. 
 
 75. Implied contract: It is not necessary 
 in every case, in order to bind a corporation, 
 to prove that its officers or agents expressly 
 assumed to bind it by conti-act, but the terms 
 of the undertaking may sometimes be im- 
 plied in favor of one who has been led to 
 deal with the ofScers or agents, with the be- 
 lief that they are representing the corpora- 
 tion in such contract. But in a particular 
 case, held, that the evidence was not suffi- 
 cient for this purpose : Storm Lake Bank i: 
 Missouri Valley L. Ins. Co., 66-617. 
 
 76. Conveyance; presumption as to seal : 
 The signature of an officer of a corporation, 
 executing an instrument, being proved, the 
 seal will be presumed genuine until the pre- 
 sumption is rebutted. The seal itself is prima 
 
370 
 
 CORPORATIONS, III, b. 
 
 Officers. — Powers and acts. 
 
 facie evidence that it was affixed to the in- 
 strument legally, and the burden of proving 
 that it was not affixed legally is upon the 
 party objecting to the instrument: Black- 
 shire v. Iowa Homestead Co., 39-634. 
 
 7 7. Where the signature of the officers of 
 a corporation executing the instrument is 
 proved (as by a proper certificate of acknowl- 
 edgment), the seal will be presumed genuine, 
 and it will be presumed that it was affixed 
 under proper authority. The burden in such 
 case is thrown upon the party objecting to 
 the instrument to overcome this presumption : 
 Chicago, B. & Q. R. Co. v. Lewis, 53-101. 
 
 78. Where it is competent for the board of 
 directors to direct the execution, by an offi- 
 cer or agent, of a conveyance of its real prop- 
 erty, and such conveyance is executed under 
 the seal and in the name of the corporation, 
 the presumption is that such direction was 
 given : Morse v. Beale, 68-463. 
 
 79. The seal is prima faeie evidence that 
 it was affixed by proper authority, and the 
 court will presume that the instrument was 
 executed by proper authority: Ooodnow v. 
 Oakley, 68-25. 
 
 80. All assignment of judgment in favor 
 of a bank, signed by persons designating 
 themselves as president and secretary, but 
 without other evidence that they were such 
 officers, held, not sufficient to show that the 
 assignment was with proper autlxority: 
 Klemme v. McLay, 68-158. 
 
 81. Ratification: Where the pi-esident and 
 secretary were directed, at a meeting of the 
 stockholders, to execute a conveyance and 
 did so, although the power to make convey- 
 ances was vested only in the trustees, and it 
 appeared that the stockholders knew of the 
 deed and the manner of its execution and ac- 
 quiesced therein for years, held, that the 
 corporation could have no relief in equity 
 against such deed, whatever might be its 
 rights in an action at law : Marshall County 
 High School Co. v. loiva Evangelical Synod', 
 38-860. 
 
 82. Where a corporation accepted money 
 paid on a settlement made by a committee 
 whichuthe officers of the company must have 
 known was leceived through the settlement, 
 held, that such acceptance would constitute 
 a ratification of the settlement: Merchants' 
 Union Barbed Wire Co. v. Bice, 70 . 
 
 83. Where the reports of the treasurer of a 
 loan association showed money borrowed os- 
 tensibly for the use of the association, lield. 
 that the association was liable therefor, 
 although the treasurer was in default when 
 the money was borrowed and used the sum 
 borrowed in place of money of the association 
 which should have been in his hands : Leon- 
 ard V. Burlington Mut. Loan Ass'n, 55-594. 
 
 84. Fraud, how alleged: The allegation of 
 fraud and misrepresentation by a corporation 
 is sufficient without alleging that the officers 
 or agents through whom the corporation acted 
 and who made the representations did not 
 exceed their authority : Carey v. Cincinnati 
 & C. B. Co., 5-857. 
 
 85. Power to mortgage: Restriction in 
 the articles of incorporation upon the power 
 of trustees to sell certain property of the cor- 
 poration, held not to be an inhibition upon 
 their power to mortgage the same: Krider 
 V. Trustees of Western College, 81-547. 
 
 86. Authority of president: Stipulations 
 of a railway company, entered into by the 
 president with the consent of a majority of 
 the directors, and circulated at the polls on 
 the day of election, for voting upon a tax in 
 aid of such railway, held binding upon the 
 company in the absence of any showing that 
 the president had no authority to make 
 them: Meeker v. Ashley, 56-188. 
 
 87. A limitation of indebtedness in the 
 articles of incorporation is binding upon the 
 officers of the company and they cannot 
 render it liable beyond such limit. So held 
 in case of a religious corporation : Wyncoop 
 V. Congregational Society, 10-185. 
 
 88. Sale of stoct : Officers of a corporation 
 cannot, in the absence of express authority, 
 sell stock for less than its par value: Oliphant 
 V. Woodburn Coal, etc., Co., 68-332; Jackson 
 V. Traer, 64-469. * 
 
 8!). Nor accept payment of a stock subscrip- 
 tion in property at a price largely in excess 
 of its value : Osgood v. King, 42-478. 
 
 90. But they may release a stock subscriber 
 fi-om his subscription: Qelpoke v. Blake, 19- 
 263. 
 
 91. Power to alienate land: Itisdoubtful 
 whether the general superintendent of a 
 railway company can be presumed to have 
 the power to alienate or charge its lands: 
 Kippv. Coenen, 55-68. 
 
CORPORATIONS, III, b. 
 
 371 
 
 Officers. — Powers and acts. 
 
 92. Parol evidence to show authority: 
 
 In such case an assertion by the president of 
 the company that the superintendent had 
 such power would not tend to prove it : Ihid. 
 
 93. The character of the employment and 
 the nature of the duties of an agent of a cor- 
 pora,tion may be shown by parol : Leekins v. 
 Nordyhe <St Marmon Co., 66-471. 
 
 94. Seryice upon oliicers and agents: 
 The general rule is that notice to the corpora- 
 tion must be served upon some oiificer or 
 agent who has charge of some duty to which 
 the notice pertains : Smith v. Chicago, R. J. 
 dbP. R. Co., 56-720. 
 
 And in general as to the method of serv- 
 ing notice upon corporations, see Original 
 
 NOTICSE. 
 
 95. Liability of corporalion for misman- 
 agement of oflicers: A stockholder has no 
 right of action against a corporation for de- 
 preciation of stock due to the mismanage- 
 ment of the officers of the corporation : Oli- 
 phantv. WoodburnCoal, etc., Co., 63-333. 
 
 96. Liability for money borrowed by of- 
 ficer: Where the fact that an agent of the 
 company had borrowed money and applied 
 it to the payment of corporate indebted- 
 ness was known to the managing director, 
 held, that the company was liable therefor : 
 Liebfrite v. Dubuque Street R. Co., 48-709. 
 
 97. Fraudulsnt misrepreseutatious by 
 officer: Where it was sought to hold a cor- 
 poration liable as a stockholder in another 
 corporation by reason of fraudulent repre- 
 sentations of the officers of the company 
 sought to be held liable, held, that such of- 
 ficers had no authority to make fraudulent 
 representations regarding the other company, 
 and could not, therefore, bind their company 
 or render it liable thereby : Langan v. Iowa 
 & M. Const. Co., 49-317. 
 
 98. Ratification: Under particular facts, 
 held, that two members of an executive com- 
 mittee of a, county agricultural society had 
 no authority to purchase real property and 
 bind the society by a note to pay for the 
 same, and that subsequent improvement of 
 the property under the direction of the same 
 officers would not constitute a ratification 
 binding upon the society: Tracy v. Guthrie 
 County Agl. Society, 47-37. 
 
 99. Notice to oflicers: A corporation is 
 not chargeable with notice of tranactions be- 
 
 tween its officers acting as private individ- 
 uals in a private transaction. So held as to 
 an agreement between the president and 
 cashier of a bank as principal and surety on 
 an individual note to the bank : First Nat. 
 Bank v. Oifford, 47-575. 
 
 100. Sxccntion of note: A promissory 
 note, signed by the president and secretai y 
 of a corporation, in the absence of any show- 
 ing that by any by-law, resolution, act or 
 custom of doing business authority was con- 
 ferred upon them to execute notes or trans- 
 act other business of the corporation, held 
 not binding on such corporation: Cattroti v. 
 First Universalist Society, 46-106. 
 
 101. Conveyance to trustees: A convey- 
 ance to certain persons, " and others, trust- 
 ees of the," etc., corporation, held, to vest 
 title in the corporation and not in the trust- 
 ees as individuals: Hervey v. Buchanan, A1- 
 588. 
 
 102. Contract of officers for private ad- 
 vantage not binding: A contract made by 
 officers of a corporation, for the purpose of 
 taking advantage of their position as such 
 officers for personal aggrandizement, will be 
 void as against the company if made secretly 
 and without its knowledge, and the officers 
 wiU not be allowed to derive any advantage 
 therefrom: Blair Town Lot, etc., Co. v. 
 Walker, 50-376. 
 
 103. Purchase by officers: A director of a 
 corporation is not necessarily precluded from 
 being the purchaser at a foreclosure sale of 
 the property of the company to pay a debt 
 from the company to such director, but the 
 right to thus purchase should be exercised 
 subject to the rules imposed by the peculiar 
 position of the director. In a particular case, 
 held, that as the director was bound to make 
 a reasonable effort to prevent the property of 
 the corporation from being sacrificed at such 
 sale, and as the amount paid at the sale was 
 grossly inadequate, it should be set aside, 
 there being also some evidence of collusion 
 for the purpose of defrauding the corpora- 
 tion of its property: Hallam v. Indianola 
 Hotel Co., 56-178. 
 
 104. Good faith of officer: While an offi- 
 cer is under obligation to exercise the ut- 
 most good faith in the discharge of his du- 
 ties, he is not required to sacrifice his own 
 rights under contract, and he may accept 
 
CORPORATIONS, III, c, d. 
 
 Ofi&cers. — Liabilities. — Compensation. 
 
 payment or ti-ansf er of stock in payment of 
 his own claim against a debtor although a 
 debt of the same debtor to the company re- 
 mains unpaid: Farmers', etc., Bank v. Was- 
 son, 48-336. 
 
 105. The fact that directors of the com- 
 pany contract indebtedness beyond the limit 
 prescribed by the articles of corporation, and 
 cause a mortgage to be executed to secure an 
 amount due to themselves individually, v?ill 
 not defeat their security or give their cred- 
 itors a right to share in the proceeds of the 
 property mortgaged, it not appearing that 
 there is any negligence or misconduct on the 
 part of the directors : Garrett v. Burlington 
 Plow Co., 70 . 
 
 106. A director may become a creditor of 
 the corporation and advance it money, or 
 sell it property, and obligations of the cor- 
 poration executed therefor may be enforced 
 by him, and if the debt he holds was con- 
 tracted in good faith, and there was no f i-aud 
 on his part, he may take security or pay- 
 ment, though the corporation be insolvent, 
 and he may thereby acquire priority in the 
 payment of his claim ; but courts will scan 
 such transactions with care and even with 
 suspicion, and require that they be accom- 
 panied by the utmost good faith : Ibid. 
 
 107. Where the directors indorse the ob- 
 ligations of a corporation to a creditor, no 
 bad faith or fraud on part.of the creditor or 
 the directors appearing, the creditor is not 
 required to proceed first against the directors, 
 although the corporation was insolvent at 
 the time such obligations were issued : Ihid. 
 
 c. Zialnlities. 
 
 108. Diversion of fnnds: To render of- 
 ficers liable under the statute (Code, § 1072) 
 for diversion of funds or paying dividends so 
 as to leave iusufiicient funds to meet liabili- 
 ties, it must appear that the entire property 
 of the corporation is not sufficient to pay its 
 indebtedness. A dividend may lawfully be 
 declared although the corporation does not 
 have cash on hand sufficient to pay all its 
 liabiUties : Miller v. Bradish, 69-278. 
 
 109. The word "liability" as used in this 
 section means existing indebtedness the pay- 
 ment of wiiich can be enforced, and does 
 not include the corporate liability for pay- 
 
 ment of capital stock, such liability being re- 
 mote and contingent. The amount of the 
 capital stock is therefore not to be included 
 in determining whether the liabilities of the 
 corporation exceed its funds so as to render 
 the declaration of a dividend illegal : Ibid. 
 
 110. If the corporation has sufficient as- 
 sets to pay all its debts at the time a dividend 
 is paid, then the payment of such dividend 
 cannot be held illegal, nor a diversion of the 
 funds to objects other than those authorized : 
 Ibid. 
 
 111. fraud: Where it is sought to recover 
 from individual officers of a corporation the 
 amount of a judgment against the corpora- 
 tion, under a claim that such officers have 
 rendered themselves liable by fraud, proof of 
 absence of intentional fraud and diversion of 
 assets to their own use will relieve defend- 
 ants from liability. The statutory provision 
 (Code, § 1071) that intentional fraud in failing 
 to comply substantially with the articles of 
 incorporation, or in deceiving the public, etc., 
 shall subject those guilty thereof to fine and 
 imprisonment, and that any person who has 
 sustained injury from such fraud may also 
 recover damages against those guilty of par- 
 ticipating therein, only applies to officers or 
 others guilty of intentional fraud : Hoffman 
 V. Dickey, 54-135. 
 
 112. Failure to comply with articles: 
 Under the same statutory provision, held, 
 that in an action for damages thereunder the 
 particular respect in which there was a fail- 
 ure to comply witfi the articles, etc., result- 
 ing in damage to plaintiff, or the particular 
 act of deception, etc., must be specified: 
 White V. Hosford, 37-566. 
 
 113. The rule that when thei'e is no prin- 
 cipal who can be made legally responsible, 
 the agent who attempts to act for and bind 
 the principal will himself be personally 
 chargeable, applied to the case of officers of a 
 bank illegally organized: Allen v. Pegram, 
 16-163. 
 
 d. Compensation. 
 
 114. When an officer of a corporation per- 
 forms the usual and ordinaiy duties of his 
 office as defined by the charter and by-lavys, 
 he cannot recover compensation for such 
 service unless it has been so specially agreed. 
 He cannot, in such case, recover what his 
 
CORPORATIONS, IV, a. 
 
 373 
 
 Corpoi-ate acts. — Powers. 
 
 services are reasonably worth, nor will any 
 arrangement as to salaries made prior to the 
 incorporation be binding against the corpora- 
 tion : Citizens' Nat. Bank v. Elliott, 55-104. 
 
 IV. CoKPOEATE ACTS. 
 
 a. Powers. 
 
 115. Construction of charter: In conflicts 
 between the sovereign power and grantees 
 enjoying exclusive privileges conferred upon 
 them by acts of incorporation, the charter is 
 to be construed strictly as against the persons 
 upon whom such privileges are conferred: 
 Miners' Bank V. United States, 1 G. Gr., 553. 
 
 lie. Contracts not under seal ; r.ritten 
 or oral; ratiflcation: Corporations of all 
 kinds may be bound by contracts not under 
 seal. They may make a binding contract in 
 writing not under seal, and may also be held 
 liable under verbal contracts. So, also,' they 
 may ratify and adopt as their own a contract 
 made by an oflicer out of the usual scope of 
 his duties: Merrick v. Burlington, etc., Plank 
 SoadCo., 11-74. 
 
 117. Record of action: The recital as to 
 the making of a contract, not entered on the 
 record at the time it was originally written, 
 by the secretary, but at a subsequent meet- 
 ing directed to be entered on the record, will 
 not be receivable as against the other party 
 to such contract: Colfax Hotel Co. v. Lyon, 
 69-683. 
 
 118. Implied contracts: Where a party 
 with the knowledge and consent of the di- 
 rectors of a corporation borrowed money on 
 his individual note for the use of the corpo- 
 ration, which money was used by it in pay- 
 ing its debts, held, that the corporation was 
 bound to repay to such party the money so 
 borrowed by him: Humphrey v. Patrons' 
 etc., Ass'n, 50-607. 
 
 119. Powers: A corporation is presumed 
 to be clothed with the usual powers necessary 
 and proper to enable it as such to cany out 
 the purposes of its existence : Home Ins. Co. 
 V. North Western Packet Co., 33-333, 
 
 120. Assignment of claim to insurance 
 company: Therefore, held, that an insurance 
 company had authority to acquire, by assign- 
 ment, the clairo.8 of a shipper of goods in- 
 sured by it against the common carrier in 
 whose hands they were destroyed: Ibid. 
 
 121. Ratiflcation : Corporations may ratify 
 contracts made withovit their authority and 
 thus become bound thereby like natural per- 
 sons. Thus an acceptance of payment for 
 services rendered under a contract and in ac- 
 cordance with its terms may amount to a 
 ratification of such contract : Athearn v. In- 
 dependent Dist., 83-103. 
 
 122. Proper objects : For the purpose of 
 effecting the objects of a corporation its 
 powers are as broad and comprehensive as 
 those of an individual, unless the exercise of 
 the asserted power is expressly prohibited : 
 Thompson v. Lambert, 44-239. 
 
 123. Borrowing money; misappropria- 
 tion by officers: Where an agricultural soci- 
 ety was organized for the proper objects of 
 such a corporation, the power to borrow 
 money and execute notes and mortgages not 
 being expressly assumed or prohibited, held, 
 that it had by implication authority to exer- 
 cise such powers as to indebtedness created 
 for the necessary and proper purposes of 
 carrying out the objects of the corporation : 
 Ibid. 
 
 124. SiiretTship: The simple act of going 
 surety for another is out of the line of the 
 prosecution of any business : Lucas v. White 
 Line Transfer Co., 70 . 
 
 125. Mortgages: For a proper purpose it 
 has power to borrow money by executing 
 notes and mortgages : Thompson v. Lambert, 
 44-339. ' 
 
 12G. The power to mortgage the property 
 of the corporation is incident to the ordinary 
 powers of such corporation : Dunham, v. Isett, 
 15-284. 
 
 127. Negotiable bonds: And where the 
 power to borrow money may necessarily be 
 implied, it may be exercised by issuance of 
 negotiable bonds : Des Moines Gas Co. i-. 
 West, 50-16. 
 
 128. Purchase of its own stock: Under a 
 charter by which a corporation had authority 
 to purchase, etc., "any real estate or other 
 property,'' etc., held, that it was not beyond 
 its power to purchase its own stock: loira 
 Lumber Co. v. Foster, 49-35. 
 
 12!). Endowment fund: Where the articles 
 of incorporation of a college did not expressly 
 give it power to raise and control funds by 
 taking endowment notes, held, by a divided 
 court, that it had the power, to accept and 
 
374 
 
 CORPORATIONS, IV, a, b. 
 
 Powers. — Acts ultra vires. 
 
 enforce payment of such notes: Simpson 
 Centenary College v. Bryan, 50-293. 
 
 130. Exemption of property of members 
 from liability for debts: The corporation 
 may exempt the private property of its mem- 
 bers from liability for corporate debts : 
 Spense v. Iowa Valley Const. Co., 36^07; 
 Larson v. Dayton, 53-597. 
 
 131. The only case in which the private 
 property of members becomes liable for cor- 
 porate debts Is that specified in the statute 
 relating to failure to take proper steps in or- 
 ganizing. (Code, § 1006) : First Nat. Banh v. 
 Davies, 48-424, 436. 
 
 133. The power to sue and be sued : A cor- 
 poration must sue and be sued in corporate 
 name : Chicago, D. <fe M. R. Co. v. Keisel, 43-39. 
 
 Further, see Pleadings, gg 130-145. 
 
 133. Ultra vires ; acceptance of paper 
 npon condition: Where a corporation be- 
 came the successor to an individual in the 
 manufacture and sale of buggies, held, that 
 it had authority to accept from the individual 
 whom it succeeded an order accepted by him 
 upon particular terms: Cook Mfg. Co. v. 
 Randall, 62-244. 
 
 134r. Acceptance of note in payment: 
 Held, that a corporation organized for the 
 manufacture and sale of musical instru- 
 ments, and not having the power to engage in 
 the business of loaning money, might still 
 take from its agent, in payment of an in- 
 debtedness due from him, the note of a third 
 party belonging to him : Western Organ Co. 
 V. Reddish, 51-55. 
 
 135. Power to hold real property: The 
 power of a railway corporation to whom 
 public lands are granted to hold such lands is a 
 question between the corporation and the gov- 
 ex-nment, and cannot be raised as against the 
 corporation by a third party in an action by the 
 company for possession of the lands so granted : 
 Chicago, B. & Q. B. Co. v. Lewis, 53-101. 
 
 136. Power to sell and convey real prop- 
 erty : The grant, by the law under which a 
 corporation is organized, of the power to 
 make contracts gives it the power to make a 
 sale of its real property and convey the same : 
 Biiell V. Buckingham, 16-284. 
 
 137. A limitation upon the power to sell 
 operates also as a limitation on the power to 
 convey : Middleton Savings Bank v. Ditbuque, 
 15-894. 
 
 13S. Power over property held in trust: 
 
 Where property is conveyed to a voluntary 
 corporation in trust with limitations, neither 
 a majority nor minority can rightfully divert 
 the property from the use and trust. A court 
 of equity in enforcing such trust wQl look 
 to the trust intended, and disregard all ques- 
 tions as to majoi-ities or as to religious creeds 
 or beliefs except so far as is necessary to 
 ascertain the trust intended and apply the 
 property accordingly : McBride v. Porter, 17- 
 203. 
 
 139. Power of majority: Property held 
 by a voluntary association or corporation ab- 
 solutely and without any limitation may be 
 disposed of by a majority, or managed as 
 they please, admitting the minority to the 
 same benefits as themselves : Ibid. 
 
 140. Power to take by will: The pro- 
 visions of the Code (§ 1091) limiting the 
 power of associations or corporations not for 
 pecuniary profit to take by will more than 
 one-fourth of the estate of a person leaving 
 a wife, child or parent surviving, are appli- 
 cable to voluntary associations of that kind 
 whether incorporated or not: Byen^s v. 
 McCartney, 62-339. 
 
 141. Keligious association ; expulsion 
 of member; review of action: Where a 
 corporation is organized for the purpose of 
 holding and disposing of the property of a 
 religious society, and its officers are elected 
 by the members of the church, the courts 
 wiU not interfere by mandamus to restore to 
 membershii5 in the corporation a person ex- 
 pelled from the church organization for an 
 alleged offense where there are no property 
 rights involved : Sale v. First Regular Bap- 
 tist Church, 62-26. 
 
 142. The civil courts will not revise the 
 decisions of churches or religious associa- 
 tions upon ecclesiastical matters, but will in- 
 terfere with the action of such associations 
 when rights of property or civil rights are 
 involved: Bird v. St. Mark's Church, 62- 
 567. 
 
 b. Acts ultra vires. 
 
 143. Defense: The rule of ultra vires as 
 to a contract to borrow money prevails in 
 full force only where the contract remains 
 wholly executory, and this is true even as 
 
CORPORATIONS, IV, b. 
 
 375 
 
 Acts ultra vires. 
 
 to public and municipal corporations : Thomp- 
 son V. Lambert, 44-339. 
 
 144. Every person dealing with a corpora- 
 tion is charged with knowledge of its power 
 as set out in its i-ecorded articles of incorpo- 
 ration. Where a third party makes with the 
 officers of the corporation an illegal contract, 
 beyond its powers, as shown by its charter, 
 such third party cannot recover because he 
 acts with knowledge that the officers have 
 exceeded their power, and between him and 
 the corporation or its stockholders no amount 
 of ratification by those authorized to make 
 the contract will be valid; Lucas v. White 
 Line Transfer Co., 70 . 
 
 145. Where the officers of a corporation 
 make a contract with third parties in regard 
 to matters apparently within their powers, 
 but which upon proof of extrinsic facts 
 (of which such party had no notice) lie be- 
 yond their powers, the corporation must be 
 held unless it may avoid liability by taking 
 timely steps to prevent loss or damage to 
 such third parties : Ibid. 
 
 146. Where an officer of a corporation 
 signed the corporate name to a bond as 
 surety, held, that the fact that other persons, 
 having knowledge of the want of power of 
 the corporate officer to enter into such a 
 contract, also signed their names as sureties, 
 would not enable such persons to enforce 
 liability on such bond as against the corpc- 
 ration: Ibid. 
 
 147. Retaining benefits: A corporation 
 cannot retain benefits derived from an ultra 
 vires contract and at the same time treat the 
 contract as entirely void, unless, perhaps, in 
 cases where the other party has assisted wil- 
 
 ■ fully in putting it beyond the power of the 
 corporation to return what is received on 
 such contract: Ibid. 
 
 148. Acts of officers: Where the corpo- 
 ration has permitted its officers to engage in 
 tdtra vires transactions, and, in prosepution 
 of such transactions, the officers commit a 
 wrong or tortious act without the fault of 
 the injured party, the corporation is estopped 
 from taking advantage of the ultra vires 
 character of the original undertaking : Ibid. 
 
 149. Stockholder cannot plead; estop- 
 pel: Where certain stock in a corporation 
 was transferred as collateral security, and 
 subsequently bonds of the corporation, 
 
 largely in excess of the indebtedness author- 
 ized by its charter, were fraudulently issued 
 and sold, held, that the party holding the 
 stock as collateral security, having failed to 
 exercise any control over the affairs of the 
 corporation to secure honest and competent 
 management,, was, by such omission, charge- 
 able with negligence, and in equity would not 
 be protected against the holders of the fraud- 
 ulent bonds. Also, held, that the same would 
 be true of a stockholder acquiring his stock 
 with a knowledge or presumed knowledge of 
 these fraudulent transactions: Des Moines 
 Gas Co. V. West, 50-16. 
 
 150. Negligence in making objection: 
 The stockholder who seeks to prevent the 
 consummation of an illegal corporate act, or 
 to avoid it, should be swift to make known 
 his desires and assert his rights through the 
 tribunals appointed for that purpose ; there- 
 fore, held, that a stockholder who knew of a 
 proposition to borrow money for a particular 
 purpose, and failed to object when he might 
 have done so before the lender had parted 
 with the fund, could not afterward resist en- 
 forcement of the debt ; and that this would be 
 true to a gi-eater extent if the funds were 
 used in such way as to result presumably to 
 the benefit of the stockholder : Thompson r. 
 Lambert, 44-339. 
 
 151. Corporation estopped from setting 
 up limit of indebtedness: Where a corpora- 
 tion is authorized to contract indebtedness, it 
 will be estopped from setting up the limit of 
 indebtedness fixed by its articles where the 
 consideration of such indebtedness has been 
 received: Humphrey v. Patrons,' etc., Ass'n, 
 50-607. 
 
 152. Indebtedness lor borrowed money: 
 Similarly the corporation will be estopped 
 from setting up the want of authority 
 as a defense as against money advanced to 
 pay indebtedness in excess of such limit: 
 Ibid. 
 
 153. Who may set up defense of ultra 
 vires: Whether the defense of ultra vires 
 can be set up by one not a party to the illegal 
 transaction, as for instance by the maker of 
 a note transferred by the payee to the plaint- 
 iff corporation which it is claimed the corpo- 
 ration as such had no power to take and 
 hold, qucBre: Western Organ Co. v. Reddish, 
 51-55. 
 
376 
 
 CORPORATIONS, IV, c; V. 
 
 Corporate liabilities. — Liability of stockholders. 
 
 c. Liabilities; levy upon corporate 
 property. 
 
 154. The capital stock of a corporation is 
 id one sense a liability, but it is not an in- 
 debtedness. The corporate liability for the 
 payment of the capital stock is remote and 
 contingent : Millar v. Bradish, 69-278. 
 
 155. Bonds in hands of bailee: Where 
 bonds of a corporation have been negotiated, 
 and repurchased by it in payment of a debt 
 due, but before their actual return and while 
 in the hands of a bailee, they are subject to 
 levy under execution : Hetherington v. Hay- 
 den, 11-335. 
 
 15G. Garnislimont of trust fnnd: Where 
 certain bonds vrere deposited with the gar- 
 nishee, as trustee, to be distributed to the 
 stockholders of the corporation defendant 
 under a certain contract, held, that the 
 trustee was subject to garnishment for such 
 bonds in his hands, under a judgment against 
 the corporation: Warren v. Booth, 51-215; 
 S. C, 53-742. 
 
 Y. Liability of stockholders. 
 
 157. Not liable in general: If the indi- 
 vidual property of the stockholder is exempted 
 from liability for corporate debts, he cannot 
 be held liable for such debts even where there 
 is no capital stock in existence from which 
 they may be paid: Spense v. Iowa Valley 
 Const. Co., 36-407. 
 
 158. The fact that a stockholder requests a 
 party to beconae surety for the corporation 
 will not render such stockholder individually 
 liable : Larson v. Dayton, 53-597. 
 
 159. Exemption from liability must ap- 
 pear: Where a statute exempted from lia- 
 bility for corporate debts, stockholders in 
 corporations organized under the general 
 incorporation laws, held, that in order that 
 the stockholders of the corporation should be 
 exempt from liability it must appear that the 
 corporation was organized under such gen- 
 eral statute: Kaiser v. Lawrence Savings 
 Bank, 56-104, 
 
 ICO. Where a corporation is stockholder 
 in another corporation, the stockholders of 
 the former are not thereby individually stock- 
 holders in the latter, and cannot be held 
 liable as such : Langan v. Iowa & M. Const. 
 Co., 49-317. 
 
 101. Under a statute (Code, § 1068) render- 
 ing stockholders liable for the debts of the 
 corporation in case of failure to comply with 
 statutory provisions as to organization and 
 publicity, held, that af ailure to file the articles 
 did not alone render the stockholders indi- 
 vidually liable : First Nat. Bank v. Davies, 43- 
 424; Eisfeld v. Kenworth, 50-389; Stokes v. 
 Findlay, 4 McCrary, 205. 
 
 162. In the clause of such statute " in rela- 
 tion to organization and publicity," the word 
 "and" should be construed as " or." A fail- 
 ure in either respect will render the stock- 
 holders individually liable: Eisfeld v. Ken- 
 worth, 50-389. 
 
 1(j3. So held in case of a failure to publish 
 any notice whatever : Ibid. ; Marshall v. Har- 
 ris, 55-182. 
 
 164. Where the articles of incorporation 
 did not state the principal place of business, 
 or the time of commencement of business, 
 held, that the publication of such articles was 
 not sufficient notice, and that there was such 
 f alure to comply with the requirements as to 
 notice as to render the stockholders individ- 
 ually liable: Cleggv. Grange Co., 61-121. 
 
 165. Failure to comply with the statutory 
 requirements as to posting a copy of the by- 
 laws and a statement of the amount of cap- 
 ital stock subscribed, etc., will not render 
 the stockholders liable : Langan v. Iowa & 
 M. Const. Co., 49-311 ; McKellar v. Stout, 
 14-359. 
 
 166. A failure to properly keep the books, 
 as required by statute, does not render the 
 stockholders individually liable. If the books 
 are fraudulently kept, those guilty of partici- 
 pation in the fraud may be held liable : Lan- 
 gan V. Iowa & M. Const. Co., 49-317. 
 
 167. Nor does the incurring of liabilities 
 greater than allowed by statute render the 
 stockholders individually liable : Ibid. 
 
 168. Stockholders in railway companies: 
 Under the statutory provisions above ref en-ed 
 to, stockholders in railway companies are, 
 by express provision, not liable beyond the 
 amount of stock held by them in such compa- 
 nies : First Nat. Bank v. Davies, 43-424. 
 
 169. A construction company having 
 power under its articles to construct and 
 operate a railway is a railway corporation 
 within the meaning of the statute: Ibid.; 
 Langan v. Iowa <Sb M. Const. Co., 49-317. 
 
CORPORATIONS, V. 
 
 377 
 
 Liability of stockholders. 
 
 170. Fraud: To render stockholders liable 
 under Code, § 1071, for fraud in deceiving 
 the public as to the means or liabilities of the 
 corporation, there must be something done 
 with the fraudulent intention of deceiving. 
 The intention to deceive is not sufficient. 
 There must be some act fraudulently done : 
 Miller v. Bradish, 69-278. 
 
 171. Fraud in such cases is not to be pre- 
 sumed. The fact that a person is a stock- 
 holder in an insolvent corporation does not, 
 of itself, render him liable : Spense v. Iowa 
 Valley Const. Co., 36-407. 
 
 172. Failure to incorporate: While there 
 may be irregularities or omissions to comply 
 with provisions merely directory, which 
 would be suflScient to sustain an action 
 brought to declare a forfeitui'e, but are insuf- 
 ficient to sustain an action to enforce individ- 
 ual liability of a stockholder, yet if the 
 attempt to incorporate is under a general 
 law, and there is a material non-compliance 
 therewith, then there is such want of incor- 
 poration that exemption from individual lia- 
 bility is not secured: Kaiser v. Lawrence 
 Savings Bank, 56-104. 
 
 173. In case of suit against individuals 
 claiming exemption from liability on the 
 ground of their having become a corporation 
 under a general statute, a stricter measure of 
 compliance with the statutory requirements 
 must be shown than in case the plea of nul 
 tiel corporation is set up in a, suit between 
 the corporation and the stockholder or other 
 individual, on liability contracted : Ibid. 
 
 174. Banking corporations: The consti- 
 tutional provisions (art. 8, g 9) rendering 
 stockholders in banking corporations or in- 
 stitutions individually liable to an amount 
 equal to their respective shares, applies only 
 to banks of issue, and not to banks merely of 
 discount and deposit : Allen v. Clayton, 63-11. 
 
 1 75. Under such constitutional provisions 
 the liabihty of a stockholder in a bank is not 
 limited in an action against him by a cred- 
 itor to the proportional sum that can be col- 
 lected from another stockholder, nor is it 
 affected by the fact of fraudulent acts of the 
 receiver or officers of the bank, nor can such 
 stockholder delay the collection of the 
 amount for which he is liable in order to se- 
 cure contribution from other stockholders 
 also liable : Steivart v. Lay, 45-604 
 
 176. Apportionment: In an action by a 
 creditor of the corporation against a stocls- 
 holder to compel payment of the balance due 
 on stock, held, that under an allegation that 
 the plaintiff was enforcing his claim un- 
 equally against different stockholders, and 
 accepting settlements with others without 
 crediting the payment thereof upon his claim, 
 a receiver should be appointed and the pros- 
 ecution of plaintiff's action be enjoined until 
 the amounts due from all the stockholders 
 could be ascertained and reported so that a 
 pro rata apportionment might be made: 
 Hablitzel v. Latham, 35-550. 
 
 177. Stock issued at less than par: The 
 officers of the corporation cannot issue to a 
 creditor stock of the corporation to be ac- 
 cepted by him at less than its par value in 
 payment of his claim, with the agreement 
 that it is to be paid-up stock, and the creditor 
 thus accepting stock becomes liable as the 
 holder of unpaid stock to the extent that the 
 par value exceeds the debt for which it is 
 taken: Jackson v. Truer, 64-469. » 
 
 178. A creditor thus accepting stock be- 
 comes a stockholder although he has noc sub- 
 scribed for stock. A subscription for stock 
 is only necessary to render a person a stock- 
 holder where the stock is not delivered : Ibid. 
 
 179. The fact that the stock was, at the 
 time of its issuance and acceptance, worth- 
 less, would not relieve a stockholder, accept- 
 ing it, from liability : Ibid. 
 
 180. Unpaid instalments: Where all the 
 capital stock of a corporation outstanding 
 was such as had been issued to stockholders 
 who had conveyed to the corporation the 
 patent-right for an article which the corpo- 
 ration was authorized to manufacture, and 
 such patent-right had become worthless, 
 held, that such stockholders could not claim 
 that their stock was paid up, and were liable 
 for the amount of their stock : Chisholm v. 
 Forny, 65-333. 
 
 181. Officers of a corporation cannot, by 
 agi-eement with a stockholder, release him, 
 to the prejudice of creditors, from liis obliga- 
 tion to pay his subscription unless the trans- 
 action is characterized by the utmost fair- 
 ness. Therefore, held, that convej-ances of 
 real estate made to a corporation by directors 
 and other stockholders in full payment of 
 their stock, at a price largely in excess of its 
 
373 
 
 CORPORATIONS, V. 
 
 Liability of stockholders. 
 
 real value, did not release such stockholders 
 from liability for the excess of their subscrip- 
 tions over the real value of the property 
 conveyed, even to creditors becoming such 
 after the conveyance: Osgood v. King, 43- 
 478; 
 
 182. Where the president of a corporation 
 gave a mortgage to the corporation in pay- 
 ment of shares of stock to the amount of 
 such mortgage, and the same was included 
 in the statement of the company's assets, 
 held, that he could not afterwards surrender 
 such stock and receive back the mortgage 
 after insolvency of the company : Burnham 
 V. Northwestern Ins. Co., 36-633. 
 
 183. Although the mortgage in such case 
 provided that it was payable in the capital 
 stock certificates of the company, yet, held, 
 that as those doing business with the com- 
 pany had not an opportunity to know the 
 terms of the mortgage, it could not be dis- 
 charged as to the creditors of the company 
 by surrender of the identical shares of stock 
 which had been issued therefor : Ibid. 
 
 184. SubsDription payable in property: 
 The fact that a subscription for stock was to 
 be paid in property instead of money does 
 not relieve the subscriber from liability, if 
 the property was not turned over as agreed. 
 The xcompany cannot, by any arrangement 
 or action upon its part, release the subscriber 
 from his liability: Singer v. Given, 61-93. 
 
 T85. Set-off: The subscriber cannot, as be- 
 tween himself and the creditor, set up claims 
 for services, or for use of property, for which 
 the corporation is indebted to him : Ibid. 
 
 186. Judarment iigainst stockholder: An 
 execution against the company can only be 
 levied on the private property of a stock- 
 holder after a judgment has been obtained 
 against him as provided by statute. (Code, 
 § 1084) : Bayliss v. Swift, 40-648 ; and see 
 Hampson v. Weare, 4r-13 ; Bailey v. Dubuque 
 Western B. Co., 13-97. 
 
 187. That section contemplates the rendi- 
 tion of a judgment against the stockholder, 
 and not merely the awarding of an execu- 
 tion against him : Singer v. Given, 61-93. 
 
 188. The action against the stockholder, 
 contemplated by statute, is an ordinary ac- 
 tion, followed by an ordinary judgment; 
 after which an execution against the corpo- 
 ration may, to the extent of such judgment, 
 
 be levied upon the private property of the 
 stockholder : Bayliss v. Swift, 40-648. 
 
 1 89. A prior statute upon the same sub- 
 ject considered: Donworth v. CoolbaugK, 5- 
 300. 
 
 190. Valid claim against corporation: To 
 charge a stockholder, it must appear that 
 there was a valid claim against the corpora- 
 tion : Corse v. Sanford, 14-335. 
 
 191. In a proceeding against the stock- 
 holder to charge him with payment of a 
 judgment for a corporate debt, the judgment 
 against the corporation is not open for re- 
 examination: Donworth V. Coolbaugh, 5-300. 
 
 192. Demand upon offlcei's; evidence: 
 Under a statute (Code, § 1083) providing that 
 property of a stockholder cannot be levied 
 upon while corporate property can be found, 
 but that issuance of execution and demand 
 upon some one of the last acting officers for 
 property on which to levy, without any 
 property being pointed out, shall be sulficienc 
 proof that no property can be found, held, that 
 the fact of demand and refusal may be shown 
 by the official return upon the execution, and 
 such return, as between the corporation and 
 the creditor, must be regarded as conclusive. 
 Evidence may be introduced to show that no 
 such return was made, but it is not compe- 
 tent to dispute it by showing that no demand 
 was made as therein stated : Singer v. Gfiven, 
 61-93. 
 
 193. Stockholder primarily liable: 
 Where there is a failure to comply with the 
 requirements of the statute with reference to 
 organization and publicity, such as to render 
 the stockholder individually liable, he be- 
 comes primarily liable, and may be sued in 
 the first instance. His relation to the cred- 
 itor is not different from what it would have 
 been if no attempt had been made at incor- 
 poration: Marshall V. Harris, 55-183. 
 
 194. Statute of limitations: Whether the 
 stockholder can be made liable until judg- 
 ment has been rendered against the corpora- 
 tion or not, the statute of limitations as af- 
 fecting the action against such stockholder 
 cannot be enlarged on account of any failure 
 or delay in obtaining judgment against the 
 corporation : First Nat. Bank v. Greene, 64- 
 445. 
 
 195. Assignee of stock ; collateral secu- 
 rity ; Under the national banking act making 
 
CORPORATIONS, VI. 
 
 379 
 
 Renewal; dissolution; forfeiture. 
 
 stockholders liable, in case of failure of the 
 bank, in an amount equal to the amount of 
 stock held by them, a holder of stock at the 
 time of the dissolution of the bank becomes 
 liable for the indebtedness thus arising upon 
 such stock, although he holds the shares 
 as collateral security, or as a trustee : Hale 
 
 V. Walker, 31-344. 
 
 As to assessments on stock not f uUy paid 
 up, see supra, §§ 64^-69. 
 
 VI. Renewal; dissolution; tokfeit- 
 
 UEE. 
 
 196. Resignation of ofHcers: A corpora- 
 tion has an existence per se, so as to main- 
 tain succession and hold and jireserve its 
 franchises, though its functions may for thi 
 time being be suspended for the want of 
 means of action, as for instance by the resig- 
 nation of all its officers: Muscatine Turn 
 Vereiii v. Funck, 18-469. 
 
 197. Winding up affairs: The voluntary 
 dissolution of a corporation does not take 
 away its power to act for the purpose of 
 winding up its affairs, nor affect the right of 
 a creditor, in equity at least, to be released 
 from the- inequitable consequences of such 
 dissolution: Ibid. 
 
 198. A corporation will be kept alive by 
 statute for the purpose of discharging its con- 
 tracts and disposing of its property : Musca- 
 tine Western B. Co. v. Horton, 88-33. 
 
 199. Sale of francliise ; dissolution: The 
 sale by a corporation of its franchise, even 
 though it may amount to a voluntary dis- 
 solution, will not terminate the corporation 
 so far as its continued existence is necessary 
 for the purpose of winding up its affairs : Ibid. 
 
 200. A corporation caimot in its corporate 
 name institute proceedings asserting its non- 
 existence at a prior time, and ask release 
 from a decree rendered against it when it 
 does not appear to have ever been revived : 
 Muscatine Turn Verein v. Funck, 18-469. 
 
 201. Abandonment of charter: Where a 
 party bought in the property of an agricult- 
 ural society at a, sale, and thereupon all the 
 members but one transferred their member- 
 ship to him, and considered the organization 
 abandoned, held, that the remaining mem- 
 ber could not bring suit in the name of the 
 corporation to set aside the conveyance: 
 Union Agl. Society v. Gamble, 53-534. 
 
 202. Repeal of charter: Where the power 
 is reserved to the legislature in the charter to 
 annul or vacate the same in the case of abuse 
 of, or misconduct as to, its privileges by the 
 corporation, the courts cannot inquire into the 
 grounds upon which a repeal has been made 
 by the legislature : Miners' Bank v. United 
 States, 1 G. Gr., 553. 
 
 203. Forfeiture: Where a state has recog- 
 nized the validity of a corporation by enter- 
 ing into contracts with it and executing con- 
 veyances to it, no mere irregularity in the 
 mode of doing corporate business can deprive 
 the corporation of the right to hold the prop- 
 erty or of the power to alienate it. Irregular- 
 ities in the mode of transacting such business 
 cannot be shown for the purpose of defeat- 
 ing title acquired through such corporation : 
 Bellows V. Todd, 39-209. 
 
 204. Suit to declare forfeiture: If, as a 
 legal and necessary consequence of certain 
 acts, a foreign corporation has ceased to have 
 a corporate existence, and plaintiff claims 
 that he is thereby injured, or that certain 
 benefits have accrued to him, he may, by 
 averring these facts, have his remedy, and 
 need not in the first instance institute pro- 
 ceedings for the purpose of having it declaimed 
 that the corporate existence has ceased : 
 Carey v. Cincinnati & C. R. Co., 5-357. 
 
 205. But if the corporation has suffered no 
 act which per se works a forfeiture or dis- 
 solution, and an inquiry as to whether tliere 
 has been such irregularity in its proceedings 
 becomes necessary, the question cannot be in- 
 quired into by courts in this state, either in a 
 direct or collateral proceeding. The judg- 
 ment must be obtained in the state granting 
 the corporate powers : IMd. 
 
 206. Dissolution; jurisdiction in equity: 
 Courts of equity, aside from statutory au- 
 thority, do not exercise jurisdiction over a 
 corporation as over a partnership to dissolve 
 it or distribute its assets, but will afford a 
 stockholder relief from the malfeasance of 
 those intrusted with the management of the 
 corporate business : Walsh v. ^tna L. Ins. 
 Co., 30-133. 
 
 207. Renewal: Whether the provisions of 
 Code, § 1069, as to renewal of corporations, is 
 applicable to corporations not for pecun- 
 iary profit, qucere: Byers v. McCartney, 62- 
 339. 
 
380 
 
 COSTS, I, II. 
 
 Security for. — Taxation of. 
 
 COSTS. 
 
 I. Security for. 
 II. Taxation of. 
 
 As to taxation of attorneys' fees as costs, 
 see Attorneys, IV. 
 
 I. Secueitt foe. 
 
 1. Statutory proTisions as to security i 
 apply to domestic as well as to foreign cor- 
 porations: Des Moines Valley, etc., Ins. Co. 
 V. Henderson, 38-446. 
 
 2. These provisions are not applicable to 
 proceedings in justices' courts: Smith v. 
 Humphrey, 15-438. 
 
 3. Whether, in an action on appeal from a 
 justice's court, security for costs can be re- 
 quired, queer e; but the motion therefor 
 should at least be made at the earliest prac- 
 ticable moment : Adae v. Zangs, 41-536, 540. 
 
 4. These provisions for requiring a cost 
 bond have relation to the ordinary forms of 
 action and are not applicable to a proceeding 
 for the trial of exceptions to a claim or de- 
 mand filed against the estate of an insolvent : 
 Meyer v. Evans, 66-179. 
 
 5. When npplicntion to be made: This 
 section dqes not mean that a party may have 
 his own time to file the motion. When the 
 time aiTJves for an answer, demurrer, or 
 motion, he may properly be required to do 
 something, and if he chooses to make the 
 motion, he must make it instanter, or within 
 such time as is given him by the court. If 
 he fails, without sufficient excuse, he may 
 properly be held to have waived his right to 
 file the motion, and may be required to an- 
 swer or demur: Sprague v. Haight, 54-446. 
 
 6. Where defendant did not file his motion 
 for security for costs by noon of the second 
 day of the term, nor by the further time 
 fixed by the court therefor, but filed such 
 motion after the time fixed by the court for 
 answering, held, that the right to insist on 
 such motion was waived and the motion 
 properly overruled: Ibid. 
 
 7. The express provision of the Code that 
 the defendant shall make and file an affidavit 
 before answering, applies to the cases con- 
 templated in reference to a subsequent re- 
 moval of plaintiff from the state : Gilbert v. 
 Hoffman, 66-205. 
 
 8. Affidavit of defense: The affidavit that 
 the party has a good defense need not state 
 the facts constituting such defense. The 
 affidavits and counter-affidavits provided for 
 in the latter part of the section ai-e as to facts 
 on which the motion is based, for instance, 
 the residence or nbn-residenee of plaintiff: 
 Des Moines Valley, etc., Ins. Co. v. Hender- 
 son, 38-446. 
 
 9. Attorney as surety : The statutory pre- 
 vision (Code, § 3931) that no attorney or other 
 officer of the court shall be received as se- 
 curity in any proceeding in court does not 
 render a bond upon which an attorney has 
 been accepted as surety void as to him, and 
 he cannot escape liability under such pro- 
 vision. It simply authorizes the officer to 
 refuse to accept such surety: Wright v. 
 Schmidt, 47-333. 
 
 10. This provision applies not only to bonds 
 for costs, but to injunction, attachment and 
 other bonds: Massie v. Mann, 17-131. 
 
 11. An appeal will lie from an order dis- 
 missing the action for want of a bond when 
 required, but not from an order reqliiring a 
 bond: Des Moines Valley, etc.. Ins. Co. ij. 
 Henderson, 38-446. 
 
 II. Taxation of. 
 
 12. What taxable: Under the statutory 
 provision (Code, § 3943) authorizing the clerk 
 to tax in favor of the party recovering costs 
 various items specified, and "any further 
 sum, for any other matter which the court 
 may have awarded as costs in the progress of 
 the cause, or may deem just to be taxed," 
 the court may tax in addition to compensa- 
 tion for services spepially mentioned in the 
 statute, a further sum for other matters when 
 deemed just. Thus, held, that the cost of 
 
 ' Code, § 2927. If a defendant shall, at any time before answering, make and file an afBdavit stating that he 
 has a good defense in whole or in part, the plaintiff, if he he a non-resident of this state, or a private or foreign 
 corporation, before any other proceeding in the cause, shall file in the clerk's oflce a bond with a sufficient se- 
 curity to be approved by the clerk for the payment of all costs which may accrue in the action in the court in 
 which it is brought or in any other to which it may be carried, either to the defendant or to the officers of the 
 court. The application for such security shall be by motion, filed with the case, and the facts supporting it must 
 be shown by affidavits annexed thereto, which may be responded to by counter-afiidavits on or before the 
 hearing of the motion, and each party shall file all his affidavits at once, and none thereafter. 
 
COSTS, II. 
 
 381 
 
 Taxat'on of. 
 
 writing down the testimony by a person ap- 
 pointed by the court for that purpose, on 
 agreement of the parties, might be taxed as 
 costs: Kuhnlee i'. Independent Dist., 36-99. 
 
 13. But the section affords no waiTant for 
 taxing up as costs any fee for officers, except 
 it is allowed by law; Sprout v. Kelly, 37-44. 
 
 14. Jury fees: Although a trial occupy 
 but part of a day, if there is no other jury' 
 trial on the same day, a full day's jury fee 
 should be charged up. What should be the 
 rule when there is more than one jury trial 
 on the same day, qucere: State v. Verwayne, 
 44-621. 
 
 15. In action by minor: In an action for an 
 infant by his next friend, such ' ' next friend " 
 is liable for costs : Vance v. Fall, 48-364. 
 
 16. In an action by a minor in his own 
 name, a valid judgment for costs may be 
 rendered against him: Albee i: Wmterink, 
 55-184. 
 
 17. In action against administr.itor: 
 Where, in an action by the widow against 
 the administrator of her deceased husband's 
 estate, the administrator did not defend, but 
 counsel appearing for the heirs defended in 
 his name and plaintiff secured judgment, 
 held, that the costs of the suit should not be 
 taxed against the estate, but against the 
 heirs in whose behalf the defense was con- 
 ducted: Drwmmondv. Irish, 52-41. 
 
 18. In case of dismissal: Plaintiff is lia- 
 ble not only for costs taxed at the time of 
 such dismissal, but for all costs properly tax- 
 able in the case : Acres v. Hancock, 4-568. 
 
 19. When taxable to plaintiff: Where 
 defendant's answer was in effect a counter- 
 claim, and he was successful thereon, held, 
 that the costs incurred by reason of the trial 
 of such issue should be taxed to plaintiff: 
 Judd V. Day, 50-247. 
 
 20. Where, as to the matter in litigation, 
 defendant was successful, but was oi'dered to 
 pay off a claim upon the property involved 
 which was acquired by plaintiff pending the 
 suit, held, that no costs appearing to have 
 been incurred as to the repayment of such 
 claim, it was proper to tax costs to plaintiff : 
 Semple v. McCrary, 46-37. 
 
 21. Where the merits of a proceeding by 
 
 injunction were found substantially against 
 plaintiff, held, that the costs were properly 
 taxed against him, although as to a matter 
 which might have been corrected without 
 action lie was successful: Tredwayv. McDon^ 
 aid, 51-663. 
 
 2-2. Under the peculiar circumstances of a 
 particular case, held, that the costs were 
 properly taxed to plaintiff : Bare v. Wright, 
 33-101. 
 
 23. Where it was provided by statute (not 
 now in force) that in actions for tort brought 
 in the' district couit, if plaintiff recovered 
 less than fifty dollars he should recover no 
 more costs than damages, held, that ujjon 
 recovery of less than fifty dollars he became 
 liable for the costs incurred in excess of the 
 amount of damages: Britton v. Wright, 1 
 G. Gr., 426. 
 
 24. Where defendant admitted plaintiff's 
 claim, and the only contest was on a counter- 
 claim in which defendant was successful, 
 held, that plaintiff should pay all costs ex- 
 cepting those for commencing action and 
 entering judgment for balance found due 
 him: Hall v. Clayton, 42-526. See, also, 
 Judd V. Day, 50-247. 
 
 25. Costs against delenilant: Where 
 plaintiff sought, by motion, to have a judg- 
 ment which had been discharged restored, 
 and defendant resisted, held, that upon the 
 sustaining of the motion all of the costs 
 should have been taxed against the defend- 
 ant: Kanjcev. Herrum, 48-376. 
 
 26. Where plaintiff sought to set aside a 
 tax title for fraud, and offered to pay the 
 amount justly due from him to the owner of 
 such title, and succeeded in the action, held, 
 that costs should be taxed against defendant 
 notwithstanding judgment was entered in 
 his favor for taxes, interest and penalties: 
 Springer v. Bartle, 46-688. 
 
 27. Disclaimer: A party who, having filed 
 a disclaimer of interest and moved to be dis- 
 missed after such motion is denied, corrtests 
 plaintiff's right to recover, and is defeated, is 
 liable for costs notwithstanding such dis- 
 claimer : Wilcox V. Goldsmith. 44-573. 
 
 28. Apportionment: 1 While the statutory 
 provisions as to apportioning costs refer pri- 
 
 ' Code, § 2933. Costs shall be recovered by the successful against the losing party. But where the party is 
 successful as to a part of his demand, and fails as to part, unless the case is otherwise provided for, the coui't 
 may, on rendering judgment, make an equitable apportionment of costs. 
 
 § 2934. In actions where there are several plaintiffs or several defendants, the costs shall be apportioned 
 
382 
 
 COSTS, 11. 
 
 Taxation of. 
 
 marily to a case where the petition embraces 
 several causes of action, or where several 
 issues are joined thereon, or upon new mat- 
 ter in the answer, they may include a case 
 .where plaintiff recovers upon his demand, 
 and defendant in whole or in part upon his 
 counter-claim : Arthur v. Funk, 23-338. 
 
 29. Where plaintifi sued defendant for as- 
 sault and battery and slander, and defendant 
 defended and also set up a counter-claim for 
 slander, and the jury returned a verdict of 
 ten dollars for plaintiff for the assault and bat- 
 tery and a like amount for defendant for 
 slander, held, that the action of the court be- 
 low in taxing certain unnecessary costs to 
 one party and dividing the balance equally 
 between them was proper, it being impossible 
 to assort the witnesses and apportion the 
 costs on each issue tried : Ferguson v. Thorpe, 
 54-423. 
 
 30. Where plaintiff asked the reformation 
 of a deed, but the relief granted was only a 
 portion of that asked, held, tha,t the claim 
 was not indivisible and that an apportion- 
 ment of the costs was proper: Strayer v. 
 Stone, 47-333. 
 
 31. In an action before a justice upon four 
 separate items, plaintiff recovered judgment, 
 but upon appeal he obtained a general ver- 
 dict for a less amount; held, that the case 
 was a proper one for apportionment of costs, 
 and that Code, §§ 3593-3, as to costs in cases 
 of appeal from justices, did not prevent such 
 apportionment: Sawder v. Overholser, 48- 
 365. 
 
 32. In an action for the recovery of cer- 
 tain articles of specific personal property, 
 where plaintiff recovered as to certain ar- 
 ticles and failed as to others, held, that an 
 apportionment of costs was proper : WhitaJcer 
 V. Sigler, 44r-419. 
 
 33. So held, also, where plaintiff failed as to 
 a part of his demand, and had increased the 
 costs by bringing his action in equity, when, 
 as to a part of his claims, an action might 
 have been brought at law: Hatch v. Judd, 
 29-95. 
 
 34. Where a number of witnesses were 
 summoned by plaintiff, and in attendance, to 
 testify touching an issue presented by the 
 pleadings, and the defendant, just before the 
 
 impaneling of a jury, withdrew his answer 
 and thereby rendered the testimony of such 
 witnesses unnecessary, held, that although 
 defendant was successful in the suit, it was 
 proper to tax up a portion of the costs 
 against him : IVhitney v. Hackney, 20-460. 
 
 35. Equitable apportionment of costs made 
 in a particular case : Starr v. Case, 59-491. 
 
 36. As to apportionment of costs of com- 
 pensation of a receiver, see French v. Qif- 
 ford, 31-438. 
 
 37. Where plaintiff's claim is indivisible 
 and he recovers a portion of the amount 
 claimed, the costs should be taxed to defend- 
 ant. There is no ground in such case for ap- 
 portionment : Upson V. Fuller, 43-409. 
 
 38. Where plaintiff recovers the whole of 
 his claim, an apportionment of costs should 
 not be made : Drummond v. Irish, 53-41. 
 
 39. Nor should apportionment be made 
 when recovery is had for less than his claim, 
 if the claim is indivisible: Hammond v. 
 Sioux City & P. a. Co., 49-450. 
 
 ■to. Failure of plaintiff to recover a portion 
 of the amount claimed does Tiot exempt the 
 defendant from liability for any part of the 
 costs unless there was a tender made and 
 pleaded, or an offer to permit judgment to be 
 entered for a sum equal to or greater than 
 the amount of the judgment finally entered : 
 Rand v. Wiley, 70 . 
 
 41. Where plaintiff obtains relief in part, 
 the costs may properly be charged to defend- 
 ant in the discretion of the court : Burton v. 
 Mason, 26-393. 
 
 42. Where final judgment is rendered for 
 defendant upon a voluntary nonsuit or plea 
 in abatement, there should not be an appor- 
 tionment of costs : Hyde v. Cole, 1-106. 
 
 43. Discretionary: An order apportioning 
 the costs will not be interfered with on ap- 
 peal where the record does not show the basis 
 on which the order was made below : Brinek 
 V. Keiweg, 39-444. 
 
 44. The order as to costs is largely disci'e- 
 tionary, and where no abuse of discretion is 
 apparent, the action of the court below will 
 not be disturbed on appeal: Boone Comity 
 V. Wilson, 41-69. 
 
 45. The question of costs rests very largely 
 in the sound discretion of the trial court. 
 
 according to the several judgments rendered; and where there are several causes of action embraced in the 
 same petition, or several issues, the plaintiff shall recover costs upon the issues determined in his favor, and 
 the defendant shall recover costs upon the issues determined in his favor. 
 
COSTS, II. 
 
 883 
 
 Taxation of. 
 
 Where a petition embraced Beveral distinct 
 charges, amounting to two hundred and 
 forty-nine dollars, and plaintiff recovered 
 only five dollars, held, that it was not error 
 to assess one-third of the costs against him : 
 Andrews v. Zimmerman, 43-708. 
 
 46. The apportionment of costs in certain 
 cases is in the discretionary power of the 
 trial court, and that discretion will not be 
 interfered with on appeal unless an improper 
 exercise thereof is shown : Bush v. Yeoman, 
 30-479. 
 
 47. The presumption in regard to the ac- 
 tion of the court as to apportionment of costs 
 is in favor of the correctness of such action, 
 and the ruling will not be disturbed on appeal 
 unless all the facts and circumstances are be- 
 fore the court, and it is manifest that the 
 ruling is wrong : Koestenhader v. Peirce, 41- 
 304. 
 
 48. When the record does not disclose the 
 facts or circumstances attending the trial, the 
 action of the lower court in refusing to tax 
 in defendant's favor costs accrued in support 
 of his cross-claim, only a small portion of 
 which was established, will be presumed to 
 have been based upon sufficient reasons: 
 Arthur v. Funk, 32-338. 
 
 49. The mere fact that a decree in favor 
 of the defendants directed that they pay 
 the costs in the first instance, to be after- 
 ward recovered by them of. the plaintiffs, 
 held, not of itself sufficient to warrant a re- 
 versal, when the facts on which the court 
 acted were not shown: Seotfs Adm'rs v. 
 Cole, 27-109. 
 
 50. Offer of jiidg'meiit: Where, in a pro- 
 ceeding to condemn the right of way for a 
 street, plaintiff offered to submit to judg- 
 ment in a certain amount, and on the trial a 
 less amount was found for defendant, held, 
 that it was not a case for taxing costs against 
 defendant, the action not being one for the 
 recovery of money within the provisions of 
 Code, § 3900 : Cherokee v. Sioux City & I. F. 
 Town Lot Co., 53-379. 
 
 51. Where an offer to confess judgment 
 has been made which is insufficient in 
 amount, it will have no effect upon the ques- 
 tion of costs where the matter to which the 
 confession relates is only one of the questions 
 upon which the conti-oversy is determined : 
 MeClatchey v. Finley, 63-200. 
 
 53. AffldaTitsasto costs: The court may, 
 in determining the matter of costs, consider 
 affidavits and counter-affidavits, or may re- 
 quire the affiants brought in and subjected t<i 
 examination and cross-examination: Packer 
 V. Packer, 34-20. 
 
 53. Judgment: Where a court has juris- 
 diction to render judgment it may also render 
 a valid judgment for costs : Sprott v. Meid, 
 3 G. Gr., 489. 
 
 54. One who is served with notice of an 
 action which does not state that no personal 
 claim is made against him, cannot, after de- 
 fault and judgment I against him for costs, 
 have such judgment con-ected or inquired 
 into by an injunction. Having the power to 
 render such judgment, the court's action can 
 only be corrected by motion or on appeal: 
 Davis V. Keith, 23-419. 
 
 65. A provision in a judgment for the re- 
 covery of costs by the successful party against 
 his adversary is an adjudication with refer- 
 ence thereto : Fairbairn v. Dana, 68-331. 
 
 56. And the correctness of such determina- 
 tion cannot be urged by motion to retax the 
 costs: Ibid. 
 
 As to what is a sufficient record of a judg- 
 ment for costs, see Courts, g§ 204, 205. 
 
 57. Retaxing costs: The ruling on a mo- 
 tion to retax costs because certain costs taxed 
 in the case were unnecessary cannot be re- 
 viewed where it is not affirmatively shown 
 to what extent, if at all, unnecessary costs 
 were taxed : Toohey v. Lowell, 68-661. 
 
 55. A motion to retax costs cannot be made 
 in the lower court while the case is pending 
 in the supreme court on appeal : Levi v. Kar- 
 rick, 15-444. 
 
 59. Collection of judgment for: The judg- 
 ment, so far as it covers costs, is for the use 
 of the parties entitled to such costs, and the 
 successful party has no interest in that part 
 of the judgment except in so far as such costs 
 have been paid by him ; therefore a payment 
 to him of the costs covered by the judgment 
 will not release his judgment debtor from 
 the claims of parties entitled to such costs : 
 McConkey v. Chapman, 58-281. 
 
 60. Fee bill : The party against whom the 
 judgment is i-endered is primarily liable for 
 all the costs to the parties entitled thereto. 
 They may issue their fee bill therefor, and 
 failing in that they may, by motion, require 
 
384 
 
 COURTS, I, a. 
 
 Jurisdiction of particular. — Supi-eme court. 
 
 the successful party to pay such of the costs 
 ai accrued at his instance, as provided in 
 Code, § 2935. The statute does not contem- 
 plate the issuance of a fee bill against a party 
 against whom no judgment has been ren- 
 dered: Ibid. 
 
 61. Officers and witnesses entitled to fees 
 in a case cannot have process issued for the 
 collection of such fees. The judgment is sub- 
 ject to the control of the party in whose favor 
 it is rendered: Ex parte Hampton, 3 G. Gr., 
 137. 
 
 62. If fees are unreasonably delayed in their 
 collection the person entitled thereto may 
 proceed against the party liable : Ibid. 
 
 COUNTIES. 
 
 See Municipal Corporations, III. 
 
 OURTS. 
 
 I. Jurisdiction of particular courts. 
 
 a. Supreme court of state. 
 
 b. District and circuit courts of state. 
 
 c. Other state courts. . 
 
 d. Federal courts. 
 
 II. Organization; exercise of power. 
 
 a. What constitutes court; functions 
 
 of judge. 
 
 b. Time and place of holding court; 
 
 terms. 
 
 c. Becords. 
 
 d. Rules; assignment of causes. 
 
 e. Process. 
 
 As to jurisdiction in general, and courts 
 of general and courts of limited jurisdiction, 
 see Jurisdiction. 
 
 As to Practice, see that title. 
 
 I. Jurisdiction of paeticulab courts. 
 
 a. Supreme court of state. 
 
 1, No original jurisdiction: The supreme 
 court has no original jurisdiction. It can 
 review or correct judgments of a lower 
 court only upon appeal or writ of error: 
 Powell V. Spaulding,S G. Gr., 417; West- 
 brook V. Wicks, 36-383. 
 
 2. It cannot grant an injunction upon an 
 original application, although the judges of 
 
 the court are authorized to issue injunctions 
 as judges: Peed v. Murphy, 3 G. Gr., 568. 
 
 3. It cannot, in the first instance, grant an 
 attorney's lien, as that would be an exercise 
 of original jurisdiction: Preston v, Daniels, 
 3 G. Gr., 536. 
 
 4. It can only try issues presented on ap- 
 peal. It cannot, by way of a ruling on a 
 motion, determine that, by reason of mat- 
 ters arising pending the appeal and shown 
 by affidavit, appellee should be barred from 
 further prosecuting the case: Simonson v. 
 Chicago, R. I. & P. R. Co., 48-19. 
 
 5. Jurisdiction not conferred by con- 
 sent: Parties cannot by agreement confer 
 jurisdiction upon the supreme court in a case 
 in which an appeal is not authorized. So 
 held, where, by consent, an appeal in a crimi- 
 nal case was taken without judgment having 
 been rendered : Putter v. State, 1-99. 
 
 6. Appellate jurisdiction at law: The 
 statutory provision (Code, § 3169) dispensing 
 with the necessity of a motion for new trial 
 is not in violation of the constitutional pro- 
 vision that the supreme court shall have 
 jurisdiction in actions at law only for the 
 correction of errors. Previous to that stat- 
 ute the mling of the lower court on a motion 
 to set aside the verdict as contrary to the 
 evidence was reviewed as a matter of law, 
 and the statute simply acts as a standing 
 motion for a new trial: Coffin v. City Council, 
 36-515 ; and see Delvee v. Boardman, 30-446. 
 
 7. In a law case it is a court for the cor- 
 rection of errors at law, and it will not de- 
 cide a case upon an agreed statement of facts 
 which does not purport to embody the evi- 
 dence, and when no error of law is presented: 
 Harvey v. Miller, 25-319. 
 
 8. Kegulation restricting appeals: The 
 rule of the supreme court requiring the cer- 
 tificate of the trial judge in an appeal, where 
 the amount in controversy is less than one 
 hundred dollars, to state the question in- 
 volved on which the decision of the supreme 
 court is desired, is not nugatory as limiting 
 the jurisdiction of the court : Wilson v. Iowa 
 County, 53-339. 
 
 9. Appeals in equity: The distinction be- 
 tween the law and equity attributes of the 
 supreme court is too well defined in the con- 
 stitution to be erased by legislative action: 
 Claussen v. Lafrem:, 4 G. Gr., 224. 
 
COURTS, I, a, b. 
 
 385 
 
 Supreme court. — District and circuit courts. 
 
 10. The supreme court can only acquire 
 jurisdiction in a chancery cause by appeal, 
 and it can only review and decide questions 
 made in and decided by the court below. 
 Upon a trial de novo of a chancery cause, it 
 cannot consider new testimony, and it has 
 no power to entertain a bill of review : 
 MoOregor v. Gardner, 16-538. 
 
 11. The method to be pursued for securing 
 a trial de novo upon appeal may be regu- 
 lated by statute : Richards v. Sintrager, 45- 
 253. 
 
 12. The right to atrial denovo upon ap- 
 peal cannot be insisted upon unless the 
 method prescribed by statute for securing 
 such form of trial has been pursued : Cross 
 V. Burlington & S. W. E. Co., 51-683. 
 
 1.3. The statutory provision that an appeal 
 is only allowed when the amount in contro- 
 versy is not less than one hundred dollars, 
 unless there is a certificate of the trial judge 
 that there is a question involved upon which 
 it is desirable to have the decision of the 
 court, is not unconstitutional as depriving the 
 party, in cases involving less than one hun- 
 dred dollars, of his right to appeal in equity : 
 Andrews v. Burdick, 62-714. 
 
 14. But the right of trial de novo in 
 equitable actions cannot be entirely taken 
 away by statute : Sherwood v. Sherwood, 44r- 
 193. 
 
 15. Jurisdiction of the supreme court in 
 chancery cases can be exercised only upon 
 appeal and not upon writ of en-or : Stockwell 
 V. David, 1 G. Gr., 115. 
 
 IC. The supreme court has jurisdiction to 
 hear a case de novo on appeal only in actions 
 in chancery and not in special proceedings : 
 Brett v. Myers, 65-274. 
 
 17. Its jurisdiction may be restricted by 
 the general assembly; and therefore, held, 
 that where an act gave the district court final 
 jurisdiction in a matter, there was no right 
 of appeal from its judgment to the supreme 
 court: Lampson v. Piatt, 1-556. 
 
 In general, as to the exercise of appellate 
 jurisdiction, see Appeals. 
 
 b. District and circuit courts of state} 
 
 18. The district court is a court of gen- 
 eral jurisdiction. It may have jurisdiction 
 
 over any case brought within its district ex- 
 cept so far as the exercise of its jurisdiction 
 is prescribed by statute. The general and 
 unlimited scope of its jurisdiction is illus- 
 trated by the fact that it is styled the dis- 
 trict court for the state, held in and for a 
 particular county, and its judges are judges 
 of the state with authority to grant writs 
 running into every part of the state. The leg- 
 islature cannot deprive it of its jurisdiction 
 or limit such jurisdiction, but the manner of 
 its exercise may be prescribed by law : Laird 
 V. Dickerson, 40-665. 
 
 10. The jurisdiction of the district court, 
 which is a superior court of general original 
 jurisdiction, can only be taken away by 
 express words or irresistible implication. 
 Therefore, held, that a statute which pro- 
 hibited the bringing of action in the district 
 court on claims against an estate for a mere 
 money demand except with the approbation 
 of the county court was not intended to take 
 away the jurisdiction of the district court, 
 but merely as a restraint upon plaintiff: 
 Sterritt v. Eobinson, 17-61. 
 
 20. And in such case, held, that the failure 
 on the part of plaintiff to obtain such leave 
 must be set up as a defense and could not be 
 made the ground of a collateral attack on the 
 judgment : Cooley v. Smith, 17-99. 
 
 21. The statutes conferring jurisdiction 
 upon the probate court do not defeat or oust 
 the general jurisdiction of the district court : 
 Harlin v. Stevenson, 30-371. 
 
 22. As the district court is one of general 
 jurisdiction, its powers are such as to give 
 it cognizance of proceedings by creditors to 
 compel an administrator to sell real estate for 
 debts, and of all other proceedings except 
 where jurisdiction is denied or taken away by 
 express language or necessary implication: 
 Waples V. Harsh, 19-381. 
 
 23. At law and in equity: The district 
 court is invested with all the powers of a 
 court of law and those of a court of equity, 
 and the distinction between the two juris- 
 dictions is recognized. This distinction the 
 legislature cannot take away: Claussen v. 
 Lafrenz,iQ. Gr., 224. 
 
 24. Under statutes different from those 
 now in force, held, that in a proceeding in 
 
 ' The circuit court is now abolislied and its jurisdiction, in general, added to that already possessed by the 
 district court: 21 Q. A., ch. 134. 
 
 Vol. 1 — 35 
 
386 
 
 COURTS, I, b. 
 
 District and circuit courts. 
 
 equity, the court possessed no jurisdiction to 
 render in favor of the party such judgment 
 as he might show himself entitled to at law : 
 Roherts v. Taliaferro, 7-110. 
 
 25. Supervisory powers: By statute, the 
 general supervision of the circuit court over 
 inferior courts, etc., in civil matters, is ex- 
 clusive, and so is that of the district court in 
 criminal matters. Jurisdiction in proceed- 
 ings by certiorari is not given indiscrimi- 
 nately to both courts, but each court has 
 jurisdiction in that class of cases under its 
 supervision: Eeniston v. Hewitt, 48-679; 
 Groves v. Bichmond, 53-570. 
 
 20. The supreme court will recognize the 
 want of jurisdiction of the district court in 
 certiorari in civil cases, though the objection 
 be not made below nor on appeal : Groves v. 
 Richmond, 53-570. 
 
 27. The circuit court has exclusive juris- 
 diction over appeals in the trial of contested 
 county elections : McKinney i'. Wood, 35-167. 
 
 28. The statutory provision (Code, g 162) 
 giving the circuit court jurisdiction in all 
 appeals and writs of error over inferior 
 courts, tribunals and ofl3.cers, and the general 
 supervision thereof in all civU matters, to 
 prevent or correct abuses where no other 
 remedy is provided, does not permit appeals 
 in cases where there is no statute authoriz- 
 ing them ; as for instance from the action of 
 fence-viewers : McKeever v. Jenks, 59-350. 
 
 29. Circuit court: Where the circuit court 
 has exclusive jurisdiction and a change of 
 place of trial is granted, it should be sent to 
 some other circuit court and not to the dis- 
 trict court : Schuchart v. Lammey, 63-197. 
 
 30. The fact that a certain court is given 
 exclusive original jurisdiction of an action 
 does not imply that such jurisdiction is final 
 and without review on appeal: Conboy v. 
 Iowa City, 2-90. 
 
 31. Probate jurisdiction: i The probate 
 court has not jurisdiction to appoint an ad- 
 ministrator of the personal property of a 
 person who was not a, resident of the county 
 at the time of his death and held no prop- 
 erty there, merely on the ground that the 
 
 property was brought into the county after 
 his death for a special purpose and removed 
 again before the appointment of such ad- 
 ministrator : Christy v. Vest, 36-285. 
 
 32. If there is any claim due the estate of 
 decedent on which action might be main- 
 tained in the courts of this state by an ad- 
 ministrator properly appointed, the courts of 
 this state have jurisdiction to appoint such 
 administrator. So held as to a cause of 
 action accruing in another state under tlie 
 laws of that state for causing the death of 
 decedent, defendant being suable in Iowa: 
 Morris v. Chicago, R. I. & P. R. Co., 65-787. 
 
 33. The fact that a court, in gi-anting ad- 
 ministration upon the estate of a foreign 
 decedent, appoints an administrator for the 
 sale of real estate in that county, does not 
 limit its jurisdiction as to property in other 
 counties of the state : Lees v. Wet more, 58- 
 170. 
 
 34. Jurisdiction of the probate court is not 
 exclusive as to land belonging to an intestate, 
 which is not required for the payment of 
 debts and remains in the possession of the 
 heirs after administration is concluded, and 
 an action against heirs in possession by a per- 
 son claiming to be heir may be brought in 
 another court : In re Seatoris Estate, 58-523. 
 
 35. Where the rehef sought is the enforce- 
 ment of a lien, the action may properly be 
 brought in equity, there being no method of 
 obtaining relief in probate proceedings: 
 Goodnow V. Wells, 67-654. 
 
 o6. Under the Revision, the county courts 
 did not have exclusive jurisdiction of all mat- 
 ters connected with the settlement of the 
 estate, and no express power was granted 
 them to entertain a creditor's bill to command 
 an administrator to sell real estate for debts : 
 Waples V. Marsh, 19-381. 
 
 37. The court having taken jurisdiction to 
 appoint an administrator, such action cannot 
 be attacked collaterally by showing that 
 there was no property in the county to war- 
 rant such appointment: Murphy v. Creigh- 
 ton, 45-179 ; Lees v. Wetmore, 58-170. 
 
 38. The probate court has exclusive juris- 
 
 ' Code, § 2312. The circuit court of eacli county shall have original and exclusive jurisdiction of the probate 
 of wills, and the appointment of such executors, administrators, or trustees, as may be required to carry the 
 same into effect; of the settlement of the estate of deceased persons, and of the persons and estates of 
 minors, insane persons, and others requiring guardianship, including applications for the sale of real property 
 belonging to any such estates, except as prescribed in chapters one and three of title fifteen. 
 
COURTS, I, b. 
 
 387 
 
 District and circuit courts. 
 
 diction of an action to probate a will, but 
 such probate is not conclusive on adverse 
 parties, and an original action to set the will 
 aside may be instituted in the distiict court: 
 Leighton v. Orr, 44r-679. 
 
 39. A circuit court, as a court of probate, 
 does not have exclusive jurisdiction of a suit 
 on an administrator's bond: Wheelhouse v. 
 Bryant, 13-160 ; JenUns v. Shields, 36-526. 
 
 40. An order of a probate court approving 
 the report of an administrator, in which he 
 certifies to a distribution of all the funds to 
 certain heirs, is not an adjudication that 
 there are no other heirs : Crosley v. Calhoon, 
 45-557. 
 
 41. A probate court may appoint a referee 
 in the matter of the examination of adminis- 
 trator's accounts: In re Heath's Estate, 
 58-86. 
 
 42. The jurisdiction of the circuit court as 
 a court of probate relates to probate matters 
 exclusively, and no chancery powers are 
 thereby conferred upon it. It may regulate 
 the distribution of property to legatees, but 
 cannot supervise the management of such 
 property by the legatees charged with a trust 
 duty in respect thereto by the will, the ex- 
 ecution of trusts being within the jurisdic- 
 tion of a court of equity : Perry v. Drury, 
 56-60. 
 
 43. The provisions as to the probate juris- 
 diction of the circuit court do not defeat or 
 oust the general equity jurisdiction of the 
 district court : Harlinv. Stevenson, 30-371. 
 
 44. The jurisdiction of the probate court 
 in relation to estates of insane persons does 
 not exclude that of the district court in an 
 action of right between an insane person and 
 others : Flodk v. Wyatt, 49-466. 
 
 45. The authority given by Code, § 2315, 
 to the clerk of the circuit court to appoint 
 guardians, etc., in vacation, does not confer 
 upon him authority to approve a guardian's 
 bond in vacation : Reno v. McCully, 65-629. 
 
 46. The circuit court, as a court of pro- 
 bate, may authorize expenditures by a guard- 
 ian for the support and education of the 
 ward, without notice to the ward. Such a 
 proceeding is not adversary in its nature and 
 does not partake of the character of an ac- 
 tion : Brewer v. Stoddard, 49-379. 
 
 47. Where a probate court directed that 
 notice of an application by the administrator 
 
 for sale of the real property to pay debts of 
 the estate should be served by publication for 
 two weeks in a newspaper, which order was 
 complied with, held, that the court thereby 
 acquired jurisdiction as against non-resident 
 defendants to act upon such application: 
 Casey v. Stewart, 60-160. 
 
 48. The hearing of a probate matter may 
 be ordered to be had at a place other than 
 the county seat : Ibid. 
 
 49. The circuit court cannot sit outside of 
 the county for the transaction of probate 
 business, and an order made in such matter 
 outside of the county will be void : Capper v. 
 Sibley, 65-754. 
 
 50. Where a proceeding which should have 
 been in probate is brought in law or equity, 
 the error is merely one as to the forum of the 
 action and cannot be raised on appeal, if not 
 interposed in the lower court: Ooodnow v. 
 Wells, 67-654. 
 
 51. Nor can such objection be taken ad- 
 vantage of by demurrer, but it must be raised 
 by motion to transfer the proceeding to the 
 proper docket as provided in Code, g 2519 : 
 Ashlock V. Sherman, 56-311. 
 
 52. Where the parties submitted to the 
 circuit court a controversy involving the 
 allowance of claims against the estate upon 
 an agreed state of facts, held, that the cir- 
 cuit court might determine such question, 
 although it was not one involving the exer- 
 cise of probate jurisdiction : Baugh v. Bar- 
 rett, 69-495. 
 
 53. Concurrent jurisdiction: The fact 
 that jurisdiction in a particular class of cases 
 exists in one court by virtue of statute, and 
 by subsequent statute jurisdiction thereof is 
 vested in another court, does not operate as 
 an implied repeal of the previous statute. 
 The jurisdiction of the com-ts is to be regarded 
 as concurrent: Hummer v. Hummer, 3 G. 
 Gr., 43. 
 
 54. In such case, if a proceeding has been 
 commenced in either court, the jurisdiction 
 of the case being thereby assumed in accord- 
 ance with the law, the other court would be 
 precluded from taking cognizance of it: 
 Aid. 
 
 55. It is no interference on the part of one 
 court with the jurisdiction of another for a 
 person, not a party to an attachment suit in 
 the one, to bring an action of replevin in 
 
388 
 
 COURTS, I, c, d. 
 
 Other state courts. — Federal. 
 
 another against the sheriff for property seized 
 by him under such attachment: Seaton v. 
 Higgins, 50-305. 
 
 66. The court first obtaining jurisdiction 
 of the person of the accused in a criminal case 
 retains it to the exclusion of another court 
 seeking to obtain such jurisdiction and will 
 proceed to try the case and administer jus- 
 tice. So held where defendant was indicted 
 in one county for a crime which was indict- 
 able in either one of two counties, and was 
 afterwards indicted and first arrested in the 
 other county : Ex parte Baldwin, 69-502. 
 
 57. Jurisdiction of inferior courts not 
 exclusive: Under the provisions of the Re- 
 vision of ] 860 giving a right of appeal from 
 the county court to the district court, held, 
 that the original jurisdiction of the district 
 court in such cases was not excluded: 
 Waples V. Marsh, 19-381. 
 
 58. The jurisdiction of a court of general 
 jurisdiction is not limited by the provisions 
 giving justices of the peace jurisdiction in 
 cases where the amount does not exceed one 
 hundred dollars. The courts of general ju- 
 risdiction have original jurisdiction in such 
 cases: Koons v. Dyer, Mor., 93; Hudson v. 
 Matthews, Mor., 94; Bvsh v. Elson, Mor., 
 816; Chapman v. Morgan, 2 G. Gr., 374; 
 Nelson v. Gray, 3 G. Gr., 397; Sutton v. 
 Drebilbis, 2 G. Gr., 593. 
 
 59. In actions of forcible entry and de- 
 tainer, exclusive jurisdiction is given to jus- 
 tices of the peace, and the district or circuit 
 court cannot exercise original jurisdiction 
 therein: Dicks v. Hatch, 10-380; Easton v. 
 Fleming, 51-305. 
 
 c. Other state courts. 
 
 60. Superior courts: The jurisdiction of 
 superior courts over appeals in civil cases 
 from justices of the peace in the township is 
 not exclusive of that of the circuit courts in 
 the respective counties: Hickox v. Nutting, 
 55-403; Hickox v. Burlington, C. R.'& M. B. 
 Co., 55-431. 
 
 61. The superior court has, as to cas^s 
 originally brought therein, concurrent juris- 
 diction throughout the county with courts of 
 general jurisdiction. The limitation of juris- 
 diction to the township in which the city is 
 located applies only to appeals and writs of 
 
 error from justices of the peace: Winet v. 
 Berryhill, 55-411. 
 
 62. The act (16 G. A., ch. 143; McClain's 
 Ann. Stat., 140) authorizing cities of a cer- 
 tain population to establish superior courts 
 upon the adoption of a proposition to that 
 effect by popular vote is not unconstitutional 
 as providing for the exercise of legislative 
 power by the people. In confers upon cities 
 certain powers which may be accepted and 
 exercised by a vote of the people, but the 
 validity of the act of the legislature is not 
 made dependent upon popular vote : Lytle v. 
 May, 49-234. 
 
 63. Police courts: Neither the constitution 
 nor any statute gives a defendant tried be- 
 fore a police magistate for violation of a city 
 ordinance, the right of trial by jury: Zellev. 
 McHenry, 51-573. 
 
 64. Nor is there any provision for change 
 of venue from such a court in such proceed- 
 ing: Ibid. 
 
 65. Mayor's court: The court of a mayor 
 is not a court of record : Santo v. State, 3- 
 165, 230. 
 
 66. County court: Under a statute provid- 
 ing for a county judge and authorizing him 
 to hold a county court, held, that the ofiicial 
 acts of the county judge were acts of the 
 county court, whether judicial or ministerial, 
 and that county judge and county court were 
 convertible terms: Lee County v. Nelson, 
 4G. Gr., 348. 
 
 67. The territorial courts of Iowa hM 
 not to be foreign courts with respect to the 
 courts organized under state authority: 
 Wright V. Marsh, 3 G. Gr., 94. 
 
 d. Federal courts. 
 
 68. Appeal to supreme court of the 
 
 U. S. : The fact that the validity of a state 
 statute is called in question on the ground 
 that it is in confiict with the constitution of 
 the United States must appear on the face of 
 the record, and a certificate to that effect will 
 not be given by the state supreme court 
 where the question is not made in the record 
 but is first suggested in the argument of 
 counsel on a petition for rehearing in the 
 latter court : Martin v. Cole, 38-141. 
 
 69. Where a state and a federal question 
 are presented to the state court, and the fed- 
 
COURTS, 1, d. 
 
 389 
 
 Federal courts. 
 
 eral question not being necessarily involved 
 in the decision, the state court ignores it, 
 and bases its decision wholly on the state 
 question, the United States supreme court has 
 no jurisdiction : Adams County v. Burlington 
 & M. R. R. Co., 113 U. S., 123. 
 
 70. Where the record shows that plaintiffs 
 in error claimed in the state court that the 
 contract made with defendants in error had 
 been rendered void and of no force and effect 
 by the constitution of the United States, and 
 of certain acts of congress, and that the su- 
 preme court of Iowa denied this claim, a fed- 
 eral question is presented which wiU give the 
 United States supreme court jurisdiction un- 
 der the twenty-fifth section of the judiciary 
 act: Railroads V. Richmond, 15 Wall., 3. 
 
 71. Writs of error from the state supreme 
 court to the supreme court of the United 
 States must be signed by the chief justice of 
 the state court: Bartemeyer v. Iowa, 14 
 Wall., 36. 
 
 72. Where writ of error is allowed by the 
 state supreme court, and a citation signed, but 
 the same, with supersedeas bond, is not filed 
 with the clerk until after the expiration of the 
 sixty days allowed therefor by the statute of 
 the United States, the judgment is not su- 
 perseded: Chicago, R. I. & P. R. Co. v. 
 Grinnell, 53-55. 
 
 73. Federal courts not foreign : The cir- 
 cuit courts of the United States are not to be 
 regarded as foreign tribunals by the courts 
 of that state in which the federal court was 
 holden which rendered the judgment, so as 
 to allow a party to rehtigate in an action on 
 such judgment the same defenses which were 
 pleaded by and decided against him on the 
 first action : Thhmson v. Lee County, 33-206. 
 
 74. The state and federal courts for Iowa 
 are not foreign to each other in any such 
 sense that proceedings wiU be allowed to be 
 pending in each court at the same time be- 
 tween the same parties for the enforcement 
 of the same rights, which would result in the 
 gianting of the same remedy operative within 
 the same territorial limits : Radford v. Fol- 
 som, 4 McCrary, 537. 
 
 75. Interference of state courts ; iiijnnc- 
 tion : The state courts have no jurisdiction, 
 power or authority to interfere by injunc- 
 tion to restrain a party who has recovered 
 judgment in a federal court, or the ofiicers 
 
 of that court, from enforcing such judgment : 
 Shimer v. Hammond, 51-401. 
 
 76. The state court cannot interfere with 
 the execution of process from a federal court : 
 Seaton v. Higgins, 50-305. 
 
 7 7. The supreme court of the United States 
 is the final arbiter respecting the nature and 
 extent of the judicial power of the United 
 States and the jurisdiction which the courts 
 of the United States possess under the con- 
 stitutional legislation of congress : Ex parte 
 Holman, 38-88. 
 
 78. In the exercise of their respective juris- 
 dictions, the state and federal courts will 
 not interfere with the operations of each 
 other at any time, whether before or after the 
 judgment: Ibid. 
 
 79. Where plaintiff has the constitutional 
 right to bring his action in the federal courts, 
 its jui'isdiction will not be ousted by proceed- 
 ings touching the subject-matter in a state 
 court. Nor can a state court interfere with 
 process issued from the federal courts to en- 
 force its judgment in such a case. The de- 
 cision of the latter when made is binding on 
 the state court: Ibid.; Clark v. Wolf, 39- 
 197. ■ 
 
 80. Mandamus: Although the federal 
 courts have jurisdiction to enforce the pay- 
 ment of a judgment therein against a county 
 by mandamus, yet it being the duty of the 
 county officers by statute to apply a tax lev- 
 ied for the satisfaction of a judgment to its 
 payment, the duty of making such applica- 
 tion is one which may be enforced by man- 
 damus in the state courts : Broum v. Crego, 
 32-498. 
 
 81. Penalties under United States laws: 
 The federal courts have exclusive jurisdic- 
 tion of cases arising under penal statutes of 
 the United States. Whether the provision 
 of the national banking act in regard to 
 usury by banks authorized underthat act is so 
 far penal in its nature that congress cannot 
 give the state courts jurisdiction thereof as 
 is attempted in that act, quaere. But held, 
 that in an action by a national bank in a 
 state court, the defendant might resist the 
 validity of the claim on the ground that it 
 contained usurious interest: National Bank 
 V. Eyre, 53-114. ' 
 
 82. Equity practice: The rules of practice 
 of the circuit court of the United States in 
 
390 
 
 COURTS, I, d. 
 
 Federal courts. 
 
 chancery causes are such as are prescribed by 
 the supreme court of the Uuited States, and 
 the provisions of the state statutes cannot 
 be considered in determining the effect of 
 proceedings therein : Scully v. Chicago, B. <& 
 Q.R. Co., 46-528. 
 
 Baukrnptcy proceedings: The jurisdic- 
 tion of the federal courts in bankruptcy pro- 
 ceedings is exclusive and the state courts can 
 exercise no jurisdiction therein: See Bank- 
 ruptcy, §g 3-7. 
 
 83. Subject-matter: Where the jurisdic- 
 tion of the federal courts is extended to a 
 class of cases by reason of the subject-mat- 
 ter of the action, such jurisdiction attaches 
 without regard to the parties, and where it 
 attaches on account of the remedy sought 
 and the form and course of proceedings, such 
 jurisdiction is not exclusive of a proceeding 
 in any other form in a state court having 
 jurisdiction, although the subject-matter is 
 the same: Home Ins. Co. v. North Western 
 Packet Co., 33-333. 
 
 84. Admiralty and maritime jurisdiction: 
 The judicial power of the United States in 
 admiralty cases is limited by the proceed- 
 ings had, the form and manner of the action, 
 and the form in which it is prosecuted, and 
 exclusive jurisdiction is not given to the fed- 
 eral courts over subjects which may be the 
 foundation of action in admiralty, and also, 
 according to the course of common law, in 
 chancery or at law. In such cases, the state 
 courts have concurrent jurisdiction with the 
 United States admiralty courts : Ihid. 
 
 85. The Missouri river is such a river that 
 the federal courts have jurisdiction over ad- 
 miralty cases arising thereon: Walters v. 
 Steamboat Mollie Dozier, 24-193. 
 
 86. Removal of cases ; amount in coiitro- 
 versy: Where the petition asked judgment 
 for a sum less than $500, and interest at such 
 rate and for such time as that it would be 
 sufficient to make the amount exceed $500, 
 held, that the amount in controversy was suf- 
 ficient to authorize the removal : Brayley v. 
 Hedges, 53-582. 
 
 87. Citizenship: Residence and citizenship 
 are not synonymous terms, and a petition to 
 remove a cause to a federal court, which al- 
 leges that the parties reside in different states, 
 is insufficient: Delaware R. Const. Co. v. 
 Davenport & St. P. R. Co., 46-406. 
 
 88. In an action against a railway com- 
 pany incorporated under the laws of Illinois, 
 and having therein its principal place of busi- 
 ness, but operating, as lessee of a domestic 
 corporation, a railroad in Iowa, in which ac- 
 tion it was sought to recover damages for an 
 injury occurring on the leased hue in Iowa, 
 held, that defendant should, for the purpose 
 of determining his right to remove the cause 
 to the federal courts on the gi-ound of citizen- 
 ship, be regai-ded as a citizen of Illinois, and 
 that, although suable in this state, because 
 doing business here under the sanction of the 
 state laws, it was not deprived of the right 
 to be regarded as a citizen of Illinois, for the 
 purpose of removal of the action: Treadway 
 V. Chicago & N. W. R. Co., 21-351. 
 
 89. Where suit is brought by a trustee, 
 who is such in good faith and has power to 
 control the claim, the citizenship of persons 
 beneficially interested, but not parties to the 
 record,' is not considered on the question of 
 removal. If the assignment by virtue of 
 which plaintiff sues is not effectual to con- 
 fer upon plaintiff the power to sue, defend- 
 ant's remedy would not be to remove the 
 suit, but to defeat plaintiff's action on the 
 ground that he is not the real party in inter- 
 est: Viviont V. Chicago & N. W. R. Co., 64- 
 513. 
 
 90. Where a cause of action is assigned so 
 as to vest the legal title to the claim in plaint- 
 iff for the purpose of preventing the transfer 
 of the cause to the federal court on account 
 of difference in citizenship of the pai'ties, it 
 is immaterial that the motive of the assign- 
 ment was to defeat such transfer : Ihid. ; S. 
 C, 69-296. 
 
 
 
 91. Where plaintiff sues as assignee, and 
 is a citizen of the same state as defendant, 
 there cannot be a removal of the cause to the 
 federal coui't, although, had the action been 
 brought by the assignor, there would have 
 been such difference in citizenship of the 
 parties as to authorize such removal: Ibid.; 
 Ooodnow V. Litchfield, 67-691 ; Goodnow v. 
 Oakley, 68-35. 
 
 92. Tlic controversy: To authorize a re- 
 moval to the federal court it is necessary that 
 there be a " controvej-sy," and where defend- 
 ants have not answered or demurred to the 
 petition for removal, and it is not shown that 
 there is a defense, there is no such contro- 
 
COURTS, I, d. 
 
 391 
 
 Federal courts. 
 
 versy as to warrant a removal : Stanbrough 
 V. Griffln, 52-112; Bosler v. Booge, 54-251; 
 Flynn v. Des Moines <& St. L. R. Co., 63-490. 
 
 93. If a controTersy between parties who 
 are citizens of different states is such that it 
 cannot be determined without determining 
 the rights of a party who is a citizen of the 
 same state as the party asking the removal, a 
 removal cannot be had : Flynn v. Des Moines 
 <& St. L. R. Co., 63-490; Stanbrough v. Grif- 
 fin, 53-112; Burch v. Davenport & St. P. R. 
 Co., 46-449. 
 
 94. The " prejudice or local influence act " 
 is not applicable to controversies in which 
 one or more of the defendants are citizens of 
 the same state with plaintiff: Burch v. 
 Davenport &■ St. P. R. Co., 46-449. 
 
 95. If, at the commencement of the suit 
 and before judgment, the citizenship of the 
 parties is such as that there can be no re- 
 moval, the right to removal will not arise 
 by reason of judgment against one of the 
 parties, leaving a controversy which is wholly 
 between citizens of different states : Ibid. 
 
 9(5. Federal question: An action under 
 the prohibitory liquor law to enjoin a nui- 
 sance caused by the selling and keeping for 
 sale of intoxicating liquors contrary to law 
 does not involve any federal question author- 
 izing the removal of such action to the fed- 
 eral courts : Lemen v. Wagner, 68-660. 
 '97. Trial term: The phrase "trial term," 
 as used in the removal acts, means the first 
 term of the court at which the cause might 
 be tried : Barber v. St. Louis, K. C. & N. R. 
 Co., 43-233. 
 
 98. Application which is required to be 
 made at such term will be too late if not 
 made before or at the term at which the 
 cause is first triable under the law, whether 
 the parties are ready to try it or not : Chicago, 
 B. & Q. R. Co. V. Welch, 44-665. 
 
 99. Final hearing: Under provisions al- 
 lowing the removal of cases from state to 
 federal court on a petition filed before the 
 trial or final heai-ing, etc., held, that in a case 
 which had once been tried in the state court, 
 but in which the judgment had been reversed 
 on appeal, and the cause remanded for a new 
 trial, the removal might still be had, and the 
 former trial 8.nd mistrial would not be deemed 
 the final hearing : Brayley v. Hedges, 53-582. 
 
 100. WhUe a cause is pending in the su- 
 
 preme court of the state, it cannot be re- 
 moved to the federal courts. Therefore, 
 where a cause was reversed and remanded 
 for a new trial, and after the filing of a pro- 
 cedendo in the lower court a petition for 
 removal was filed under the provision for 
 removal of causes before final hearing, but 
 subsequently, and within the time allowed 
 by law, a petition for rehearing wis filed in 
 the supreme court, held, that the latter court 
 had not lost jurisdiction of the case, and the 
 petition for removal in the lower court should 
 not be granted : McKinley v. Cliicago <& N. 
 W. R. Co., 44^314. 
 
 101. After the commencement of the trial, 
 a petition for a removal of the cause is too 
 late: Delaware R. Const. Co. v. Davenport 
 &St. P.R. Co., 46-406. 
 
 102. Prejudice and local influence: The 
 provision of the United States statutes al- 
 lowing removal in case of showing of prej- 
 udice or local influence, held not repealed by 
 the act of 1875 : Barber v. St. Louis, K. C. <Sb 
 N. R. Co., 43-223. 
 
 103. ElTect of application for removal: 
 The mere filing of petition and bond for re- 
 moval to federal court does not, without re- 
 gard to the character of the statute or the 
 form or allegations of the application, de- 
 prive the state court of jurisdiction ; such ap- 
 plication presents to the state court a question 
 for determination : Delaware R. Const. Co. v. 
 Davenport tfc St. P. R. Co., 46-406; Burch 
 V. Davenport & St. P. R. Co., 46-449. 
 
 104. The state court is not bound hand 
 and feet by the statement made in the appli- 
 cation for removal, that there is a controversy 
 between citizens of the same state arising 
 under the constitution and laws of the United 
 States, which statement is at most but a legal 
 conclusion. Before there can be such a, re- 
 moval, the court must determine that there 
 is such a controversy. For this purpose, the 
 court must ascertain what the issue is and 
 what is in controversy by the examination of 
 the pleadings. The facts necessary to make 
 it appear that there is such a controversy 
 ought to be stated : McLane v. Leicht, 69-401. 
 
 105. In determining whether the proper 
 cause for removal is made, the court should 
 look at the whole showing for removal and 
 consider averments in the affidavits as weU 
 as in the petition: Bixby v. Blair, 56-416. 
 
392 
 
 COURTS, I, d. 
 
 Federal courts. 
 
 106. Upon the filing of a petition in a state 
 court presenting a sufficient case for removal 
 to the federal court, the rightful jurisdiction 
 of the state court comes to an end, and the 
 state court cannot permit an issue upon the 
 allegations of the petition to be raised, and 
 upon its determination order or refuse the 
 removal of the case, as it may find the facts 
 upon which the jurisdiction of the federal 
 court is based : Van Horn v. Litchfield, 70 . 
 
 107. In a particular case, held, that the 
 petition and bond for removal being sufficient 
 in form, removal could not be refused on ac- 
 count of certain averments in a prior affidavit 
 made for requiring security for costs : Ohle v. 
 Chicago & N. W. R. Co., 64-599. 
 
 108. Rightfulness of removal: Where a 
 party has, by motion in the federal court, 
 sought to have the case in which proceedings 
 for removal have been taken remanded to 
 the state court on account of the insufficiency 
 of such proceedings, he will be bound by the 
 disposition of the case made in the federal 
 court, and cannot afterward question the 
 sufficiency of the proceeding in the state 
 court : Ryan v. Mathews, 64-250. 
 
 109. Effect of removal upon prior pro- 
 cee(lingi>: The removal of a cause into a fed- 
 eral court under the judiciary act of 1789 
 does not ipso facto render a delivery bond in 
 attachment inoperative, nor does it so change 
 the liability of the sureties as to discharge 
 them: Ramsey v. Coolbaugh, 13-164. 
 
 110. An order in regard to the withdrawal 
 of a delivery bond, after the bond is filed in the 
 federal court, upon removal, is not a further 
 proceeding in the cause, within the meaning 
 of the act authorizing a removal of causes to 
 the federal courts : Ibid. 
 
 111. Eight of foreign corporations to re- 
 move: The state statute (21 G. A., ch. 76) 
 requiring foreign corporations to procure 
 permits from the auditor of state before doing 
 business in the state, and providing that the 
 removal of a case by such corporation to the 
 federal court shall constitute a revocation of 
 such permit, held unconstitutional. (Revers- 
 ing Ooodell V. Kriechbaum, 70 ) : Barron 
 
 V. Burnside{V. S. Sup. Ct.), 7 S. C. Rep., 931. 
 
 112. Following state decisions: The de- 
 cisions of the supreme court of a state in- 
 terpreting a statute of such state are bind- 
 ing upon the federal courts: Ooodnow v 
 
 Wells, 67-654; Crooks v. Stuart, 2 McCrary, 
 13; Davenport Nat. Bank v. Mittelbuscher, 4 
 McCrary, 361. 
 
 113. The judgment of the state supreme 
 court against the constitutionality of a state 
 statute concludes the federal courts from up- 
 holding the statute and they will not attempt 
 to do so: Kaeiser v. Illinois Cent. R. Co., 5 
 McCrary, 496. 
 
 114. However little the federal courts may 
 approve the decisions of the state courts, the 
 former will not set up a different rule of 
 property with respect to state laws, but will 
 follow the state decisions in such matters: 
 Burham v. Fritz, 4 McCrary, 410. 
 
 115. The question as to whether certain 
 acts of the county constitute a conveyance 
 by it of lands received from the United 
 States is a question depending upon state 
 and not on federal law: Adams County v. 
 Burlington & M. R. R. Co., 112 U. S., 123. 
 
 116. As to a question of general law not 
 depending upon state statutes, the federal 
 courts wai follow the decisions of the su- 
 preme court of the United States rather than 
 those of the state wherein the case arises: 
 Crooks V. Stuart, 2 McCrary, 18 ; Edwards v. 
 Davenport, 4 McCrary, 34. 
 
 117. When the federal courts are called 
 upon to consider contracts resting upon state 
 statutes which were valid at the time they 
 were made, according to the decisions of the 
 highest courts of the state, and were entered 
 into on the faith of those decisions, they wiU 
 decline to follow later decisions of the state 
 declaring the invalidity of such statutes. But 
 in other cases the federal courts will hold 
 themselves bound to accept the constructions 
 given by the courts of the states to their sta.tr 
 'vites: Supervisors v. United States, 18 Wall., 71. 
 
 118. Bonds of counties issued in aid of 
 railways after the state courts have held such 
 bonds invalid will not be enforced in the 
 federal couits: Foote v. Mt. Pleasant, 1 
 McCrary, 101. 
 
 110. A state law of practice has no effect 
 propria vigore in the courts of the United 
 States, and can only be made effectual in 
 those courts by adoption by a rule of the cir- 
 cuit court for that district : Mayor v. Lord, 9 
 Wall., 409. 
 
 Lien of judgments of federal courts, see 
 Judgments, g 509. 
 
COURTS, II, a. 
 
 393 
 
 Organization. — What constitutes court. 
 
 II. Oeganization ; exercise of 
 
 POWER. 
 
 a. What constitutes court; functions 
 of judge. 
 
 120. Open court: To give existence to a 
 court, its officers and the time and place of 
 holding it must be such as are prescribed by 
 law. The term " open court " as used in the 
 statutes is to be understood as conveying the 
 idea that the court must be in session, organ- 
 ized for the transaction of judicial business. 
 Hence, a trial before a referee cannot be con- 
 sidered a trial in open court : Hdbart v. Ho- 
 hart, 45-501. f 
 
 121. Who entitled -to U present: While 
 witnesses may be separated and excluded 
 from the place of trial, in the discretion of 
 the court, upon the application of a party, an 
 exception arises in the case of a party to the 
 action, who has the right to be present dur- 
 ing the trial ; Jemmison v. Gray, 39-537. 
 
 122. That there may be a separate exami- 
 nation of witnesses, see Hubbell v. Seam, 31- 
 289. 
 
 123. Judge; unauthorized person cannot 
 act as: A person not duly authorized and 
 qualified by law cannot, by consent of par- 
 ties or by direction of the duly qualified 
 judge, act as judge in the trial of a cause : 
 Michalesv. Sine, 8 G. Gr., 470; Winchester 
 V. Ayres, 4 G. Gr., 104; Petty v. Durall, 4 G. 
 Gr., 130; Smith v. Frisbie, 7-486. 
 
 124. It is not proper for a judge of the 
 court to have an attorney substituted tem- 
 porarily in his place, even by consent of par- 
 ties, and himself act as attorney for one of 
 the parties to the case : Wright v. Boon, 3 G. 
 Gr., 458. 
 
 125. The judge may, during the argument 
 of the case to the jury, properly be absent 
 from the court room for the purpose of hear- 
 ing another case, or otherwise: Hall v. 
 Wolff, 61-559. 
 
 12G. If it appears that the judge required 
 arguments to the jury to be made while he 
 was absent attending to other business in a 
 separate room, such fact will not be ground 
 for reversal if it does not appear but that 
 such absence was necessary, or that preju- 
 dice resulted or might be inferred there- 
 from: Baxter v. Ray, 62-886. 
 
 127. Substitute: Where a statute provides 
 that, in case of the absence or disability of 
 the judge, a certain other officer designated 
 shall act in his place, it must appear, in 
 order to support an action of the person thus 
 designated in sitting as judge, that the con- 
 tingency upon which he was authorized to 
 act had occurred : Burlington University v. 
 Stewart's Ex'rs, 12-443 ; State v. Chicago, B. 
 I. &P. R. Co., 50-693. 
 
 128. A judge may hold court in another 
 district than his own by exchange under the 
 provisions of statute : State v. Stingley, 10-488. 
 
 129. Such provision (Code, § 175) is not 
 unconstitutional : Ibid. 
 
 130. Judge previously interested: A 
 judgment rendered by a judge who has pre- 
 viously been an attorney in the case is not to 
 be deemed absolutely void, where it does not 
 appear that the judgment has ever been 
 questioned or objected to by the party inter- 
 ested : Floyd County v. Cheney, 57-160. 
 
 131. Change of judge: Where, after the 
 submission of a cause on deposition to the 
 judge of the circuit court, the circuit was so 
 changed that another judge became judge of 
 such court, held, that a decision of the cause 
 by the new judge was proper : Manning v. 
 Mathews, 66-675. 
 
 132. Where at one term of court a judge 
 signs or makes a memorandum of a decree 
 which is not entered at that term on the 
 record, and before the next term the judge 
 goes out of office, his successor should cause 
 the record to be made up from the previous 
 decree or memorandum, and cannot regard 
 the cause as open for trial : Tracy v. Beeson, 
 47-155. 
 
 133. Where the judgment rendered by one 
 judge, upon the report of a referee, was set 
 aside by his successor as having been improp- 
 erly entered in vacation, and a new judgment 
 to the same effect was rendered, held, that 
 the unsuccessful party had no right to have 
 his exceptions to the referee's report passed 
 upon anew by the incoming judge : Mellinger 
 V. Von Behren, 53-374. 
 
 134. Powers may be conferred upon the 
 judge which cannot be exercised by the court 
 of which he is judge: Cummings v. De.s 
 Moines, W. & S. W. R. Co., 36-173. 
 
 135. Territorial judges: The constitu- 
 tion under which Iowa was' admitted having 
 
394 
 
 COURTS, II, b. 
 
 Time and place of holding court; terms. 
 
 divided the state into four judicial districts 
 instead of three as there had been under the 
 territorial constitution, held, that until an 
 election of officers under such constitution 
 there were no judges in such districts, al- 
 though by the constitution the officers of 
 the territory were authorized to act until 
 new officers were elected : Allen v. Dunham, 
 1 G. Gr., 89. 
 
 b. Tij7ie and place of holding court j 
 terras. 
 
 136. Sunday; dies non: A verdict ren- 
 dered on Sunday, or a judgment entered on 
 that day, is void : Davis v. Fish, 1 G. Gr., 406. 
 (But by statute, Code, § 191, a verdict may 
 be received or a jury discharged on Sunday.) 
 
 137. To avoid a judgment, regular on its 
 face, on the ground that it was rendered on 
 Sunday, the fact that it was so rendered 
 should be clearly established, beyond the 
 reasonable doubt naturally arising from the 
 ■difficulty of establishing the precise time of 
 a transaction : Bishop v. Carter, 29-165. 
 
 138. Extent of term: In contemplation of 
 la%v, aside from statute, the whole term of 
 the court is considered but one day; and 
 where a term of court commenced dui'ing the 
 year for which grand jurors were properly 
 summoned, held, that they did not cease to 
 be grand jurors during the existence of the 
 term although it extended into another year : 
 State V. Winebrenner, 67-230. 
 
 13.9. Acts after expiration of term: 
 "Where the term of court is limited, any ac- 
 tion after the end of the term is void : Davis 
 V. Fish, 1 G. Gr., 406. 
 
 140. A court cannot hold a term in one 
 county on a day when, by statute, the same 
 judge is required to hold court in another 
 county. An adjournment of the term in the 
 latter county and a continuance of the term 
 in the former will not cure the defect : Grable 
 V. State, 3 G. Gr., 559; Sheppard v. Wilson, 
 Mor., 448. 
 
 141. Where a trial is commenced in the 
 midst of a term, under the bonajide expecta- 
 tion and belief that it can be concluded be- 
 fore the day shall arrive when the judge is 
 by law dhected, but not imperatively re- 
 quired, to hold court in another county, he 
 may remain and conclude that case, receive 
 
 the verdict and pass judgment, even though 
 this may happen to be done on a day when 
 regularly he would be opening or holding 
 court in another county: State v. Knight, 
 19-94. 
 
 142. It being provided by statute (Code, 
 gg 167-8, 185-6) that where a jury trial has 
 been commenced during the term in one 
 county, the verdict of the jury may be re- 
 turned after the opening of court in another 
 county, and judgment rendered thereon, 
 the verdict in such a case may be returned 
 after the expiration of the tei'm and to the 
 judge in person : Tilton v. Swift, 40-78. 
 
 14.^. This statute changes the rule an- 
 nounced by the decisions previously refeiTed 
 to, and under it a term of court in one 
 county may legally be extended beyond the 
 time at which the same court, by the terms 
 fixed by statute, should be in session in an- 
 other county. At least a judge may, if he 
 sees proper, extend the term in one county 
 during the first three days in another county: 
 Cook V. Smith, 54^636. 
 
 144. The fact that the tiial is had and 
 completed during the time fixed for the 
 court to be held in another county, the term 
 of such other county having, however, been 
 previously adjourned, will not constitute 
 error: State v. Stevens, 67-557; State v. 
 Peterson, 67-564. 
 
 145. The fact that it appears on the record 
 that a judgment was rendered in the court 
 of one county three days after the term of 
 the same court should have commenced in 
 another county, held, not sufficient to render 
 such judgment void, even though it did not 
 appear affirmatively of record that the term 
 of court fixed for the other county had been 
 adjourned : Weaver v. Cooledge, 15-244. 
 
 As to judgments rendered in vacation, see 
 infra, §§ 157-169; and Judgments, gg 153- 
 158. 
 
 146. Change uf terip by statute: Where 
 by statute, w hich took effect on the third day 
 of the term of court, the time of holding the 
 terms of such court was changed, held, that 
 such change did not apply to the term then 
 being held, and that it might be continued : 
 Clare v. Clare, 4 G. Gr., 411. 
 
 147. Special terms: The authority to hold 
 special terms should never be withheld from 
 a court. It may be regarded as a right 
 
COURTS, II, b. 
 
 395 
 
 Time and place of holding court ; terms. 
 
 ■which a court of general jurisdiction should 
 €xeroise ex officio: Harrimanv. State, 2 G. 
 Or., 370. 
 
 148. Where a special term of court was 
 provided for the trial of criminal cases only, 
 held, that the jurisdiction of the court at 
 such term was that provided for the trial of 
 criminal cases in general, and was not lim- 
 ited merely to the trial of those in which 
 there was consent : State v. Smith, 7-244. 
 
 149. And held, that at such special term 
 an indictment might be found: State v. 
 Nash, 7-347. 
 
 150. The court may call a grand jury to- 
 gether at a special term: State v. Reid, 20- 
 413, 434. 
 
 151. Whether a judge may, for the pur- 
 pose of concluding a trial begun during a 
 regular term of court, appoint a special term 
 at a day fixed by law for the regular term in 
 another county, gucere: State v. Knight, 
 19-94. 
 
 152. Under statute authorizing special 
 terms, held, that a special term which was 
 ordered for the same day fixed for the gen- 
 eral term of the same court in another county, 
 the general term being subsequently ad- 
 journed to a later date, was not illegal : State 
 V. Clark, 30-168. 
 
 153. A special term is not a continuance 
 of the regular term after an adjournment, 
 but is a new term : Dryden v. Wyllis, 54.-667. 
 
 154. Adjournments: The judge is clothed 
 with full power over the adjournments of his 
 court: State V. Clark, 30-168. 
 
 155. A telegram from the judge to the 
 clerk, making the proper direction as to ad- 
 journment, is a sufficient written order for 
 adjournment within the requirements of the 
 statute : State v. Holmes, 56-588. 
 
 156. Where the judge, being absent from 
 the state, wrote and telegi-aplied to the clerk 
 to adjourn the approaching term of court to 
 .a further date, and the clerk, in accordance 
 with the telegi-am, published a notice of the 
 adjournment, and notified parties, jurors 
 and witnesses, but no proclamation of the 
 adjournment was made at tlie day for open- 
 ing the term, and the written order was not 
 filed nor entry thereof upon the record made 
 until after the opening of the term at the 
 time to which it was so adjourned, nor until 
 after defendant, who was held for trial at the 
 
 regular term under a continuance from a 
 previous term, had filed his protest against 
 being tried at such adjourned term, held, that 
 a nunc pro tunc record of the order was suffi- 
 cient, and the trial of defendant was properly 
 held at the adjourned term, no prejudice 
 being shown : State v. McChxire, 53-165. 
 
 157. Judgment in vacation: Whether a 
 decree entered in vacation is void or merely 
 irregular, the parties seeking to have it set 
 aside in equity must offer to pay the amount 
 appearing to be justly due. or allow judg- 
 ment to be rendered for that amount : Byers 
 V. Odell, 56-618. 
 
 158. A judge has no authority, without 
 consent of parties, to render a decision in 
 vacation discharging a, garnishee: Laughlin 
 V. Peekham, 66-121, 
 
 159. An entry of judgment made by the 
 clerk in vacation, no action of the court 
 authorizing or approving it being shown, is 
 void : Balm v. Nunn, 63-641. 
 
 100. Where, upon the appearance of de- 
 fendant at a subsequent term, the judgment 
 in vacation was set aside and a new judg- 
 ment entered of that term, held, that the new 
 judgment was .not void : First Nat. Bank v. 
 Hostetter, 61-395. 
 
 161. It is only where authority is specially 
 conferred by statute that the judge is author- 
 ized to make orders and exercise judicial 
 functions in vacation: Prosser v. Prosser, 
 64-378. 
 
 162. An order of the judge may issue in 
 vacation directing the sheriff as to publica- 
 tion of notice of sale under execution : Her- 
 riman v. Moore, 49-171. 
 
 163. Consent of a party to the cause being 
 determined in vacation, implied from the 
 conduct of his attorney in not objecting to its 
 being held over for that purpose, held suffi- 
 cient to authorize such decision : Myers v. 
 Funk, 51-92 ; Babcoek v. Wolfe, 70 . 
 
 164. Where, by agreement of parties, either 
 party was to have a certain time to file a 
 motion for a new trial to be decided in va- 
 cation, and thereafter a motion for a new 
 trial was filed and so decided, held, that amo- 
 tion in arrest of judgment could not be filed 
 and decided in vacation under tlie s^me agree- 
 ment, it not being expressly provided for 
 therein: Scribrier v. Rutherford, 65-551. 
 
 165. Where parties in open court agreed 
 
396 
 
 COURTS, II, b, c. 
 
 Time and place of holding court; terms. — Records. 
 
 that judgment should be entered upon the 
 disposition of a motion for a new trial, and 
 that such motion for a new trial might be 
 decided in vacation, held, that a judgment 
 entered in vacation in pursuance of such ar- 
 rangement was proper : Sattenback v. Sos- 
 kins, 13-109. 
 
 1 66. An agreement for a decision in vaca- 
 tion implies that the judge will decide the 
 case at his chambers or wherever he may be 
 when he finally considers it: Johnson v. 
 Mantz, 69-710. 
 
 167. Entry of judgment in vacation, when 
 it is not practicable to prepare and enter it in 
 term time, is, by statute, valid: Traer v. Whit- 
 man, 56-443. And held, that a decision of a 
 cause submitted to be decided in vacation, 
 which was signed and forwarded to the clerk 
 ■while the judge was in office, but not received 
 by the clei-k until the judge's term had ex- 
 pired, was valid: Babeock v. Wolfe, 70 . 
 
 168. Entry of judgment on confession 
 may be made by the clerk in vacation and 
 approved at the next term : Kendigv. Marble, 
 58-529. 
 
 169. Under Code, § 3394," with reference to 
 granting temporary injunctions by a judge 
 during vacation, held, that the judge had 
 authority to grant such injunction at any 
 time when the court was not actually in 
 session, and that such authority was not 
 limited to the period intei-vening between 
 different terms of court: Thompson v. Benepe, 
 67-79. 
 
 P\irther as to judgments in vacation, see 
 supra, §§ 139-145 ; and Judgments, g§ 153-158. 
 
 170. Place of holding court: Notwith- 
 standing the statutory provision that courts 
 must be held at the places provided by law, 
 probate courts are expressly authorized (Code, 
 §2313) to appoint the time and place for the 
 hearing of matters requiring notice: Casey 
 V. Stewart, 60-160. 
 
 171. But such provision as to probate 
 courts does not authorize a probate court to 
 sit outside the county, unless perhaps by con- 
 sent of parties, and any order made by the 
 court outside the county in which the case is 
 pending is void : Capper v. Sibley. 65-7.54. 
 
 172. A trial at a place not within the 
 county where the suit was pending, had by 
 agreement of parties during vacation, held 
 binding : O'Hagen v. O'Hagen, 14-364. 
 
 1 73. Where it is agreed that a case shall 
 be heard in vacation at a particular place, 
 and it is heard, but at another place, the 
 record showing that counsel on both sides 
 were present at the argument and made no 
 objection to the place of hearing, it will be 
 presumed that objection to the place was 
 waived : Johnson v. Mantz, 69-710. 
 
 174. A party is bound to take notice of the 
 place of sitting of the court, where, by rear 
 sonable effort, he might have ascertained 
 such fact : Jordan v. Circuit Court, 69-177. 
 
 1 75. Where it appears that a court was sit- 
 ting at some place other than the court- 
 house, it wUl be presumed, in the absence of 
 a showing to the contrary, that it was at a 
 place properly provided for the purpose, if 
 any reason appears why the court-house 
 might not be a proper place : State v. Shel- 
 ledy, 8-477, 509. 
 
 176. The legislature may by special act 
 authorize the holding of court at a place 
 other than the county seat : Cooper v. Mills 
 County, 69-350. 
 
 c. Records. 
 
 As to Judgments, see that title, I, d. 
 
 177. What deemed part of: An affidavit 
 for publication when filed becomes a part of 
 the record : Bradley v. Jamison, 46-68, 73. 
 
 178. A motion and affidavit in support 
 thereof filed in the case do not become a 
 part of the record unless embodied in a bill 
 of exceptions : Cook v. Steuben County Bank, 
 1 G. Gr., 447; Abbeev. Higgins, 3 G. Gr., 535, 
 
 1 79. A judgment entry is to be construed 
 in the light of the pleadings and the entire 
 record : Fowler v. Doyle, 16-534 ; May field v. 
 Bennett, 48-194. 
 
 Further as to what constitutes the record, 
 see Appeal, VI, e ; Exceptions, §§ 69-76. 
 
 180. filing of pleadings: Under the stat- 
 utory provision as to filing of pleadings, held, 
 that where a pleading is marked filed by the 
 clerk, but no entry of such filing is made on 
 the appearance docket, it cannot be consid- 
 ered as having been filed : Padden v. Moore, 
 58-703. 
 
 181. Thus where a petition in attachment 
 was marked filed, but not entered on the ap- 
 pearance docket, held, that the action was 
 properly dismissed upon motion, as the court 
 
COURTS, II, c. 
 
 397 
 
 Records. 
 
 was bound to consider tlie petition as not 
 filed : Nickson v. Blair, 59-531. 
 
 182. This provision does not apply in re- 
 spect to the filing of depositions ; Byington v. 
 Moore, 62-470. 
 
 183. Nor to the filing of bills of excep- 
 tions: Royerv. Foster, 62-321. 
 
 184. The filing consists in the delivery of 
 the paper to the clerk and his receiving it to 
 be kept on file in his office. It is not essen- 
 tial that it shall be indorsed as filed, although 
 that vpould be the better practice. The in- 
 dorsement is simply evidence of the filing : 
 State V. Briggs, 68-416 ; and see State v. Pat- 
 terson, 33-575. 
 
 185. Notice of filing of pleadings: After 
 completed service or voluntary appearance a 
 party is deemed in court and must take no- 
 tice of what is done therein up to the time of 
 final judgment, but after judgment he is not 
 bound to take notice of further proceedings : 
 Wright v. Leclaire, 3-221. 
 
 186. Notice of filing of motions: Under 
 Code, § 2914, a party must tstke notice of 
 motions filed during the term. No other 
 notice is necessary : Wagner v. Tice, 36-599. 
 
 187. Notice of a motion for change of 
 venue, made in vacation, should be given as 
 required by that section : Preston v. Winter, 
 20-264 ; Loomis v. MoKenzie, 31-425. 
 
 188. A motion to set aside a judgment 
 rendered at a prior term should not be heard 
 without notice to the parties interested: 
 Keeney v. Lyon, 21-277. 
 
 1S9. Return of papers taken from the 
 flics: A court has the power to enter an 
 order for the return of papers withdrawn 
 from the records without previous notice to 
 the party required to return them : Wiscon- 
 sin, I. & N. R. Co. V. Given, 69-581. 
 
 190. Appearance docket; indexing: The 
 indexing in the appearance docket is no part 
 of the filing, and the failure to index will not 
 defeat the notice which is imparted to third 
 persons by the commencement of an action 
 affecting real property: Haverly v. Alcott 
 57-171. 
 
 191. Judge's calendar not part of record: 
 The judge's calendar or docket is not a rec- 
 ord of the court: Sogers v. Morton, 51-709; 
 Truer v. Whitman, 56-443; Case v. Plato 
 54-64. 
 
 192. Where a decree was entered in vaca- 
 
 tion containing provisions not found in the 
 memorandum on the judge's docket, held, 
 that such provisions would not therefore be 
 void : Truer v. Whitman, 56-443. 
 
 193. The judge's minutes kept by him in 
 his calendar are not sufficient to make matter 
 of record exceptions taken by a party to the 
 ruling of the court : Lewis v. May, 32-599. 
 
 194. The judge's calendar is not a record 
 provided for by law, and the entries made 
 therein constitute the mei-e announcement of 
 the judge's mental conclusion, and not the 
 court's action : Miller v. Wolf, 63-233 ; State 
 V. Manley, 63-344. 
 
 195. The judge's minutes upon his calen- 
 dar do not constitute a judgment. Where 
 it was sought, in an action on an injunction 
 bond, to prove the dismissal of the action for 
 injuuction by proof of the entry on the 
 judge's calendar ' ' dismissed as per stipular 
 tion," and the stipulation was not shown, 
 the evidence was held not sufficient : Towle 
 V. Leacox, 59-43. 
 
 196. The entry in the judge's calendar is 
 for the guidance of the clerk, and such entry 
 is evidence tending to show that a decree 
 was ordered where such fact is recited : In re 
 Estate of Edwards, 58-431. 
 
 197. While the judge's notes will not con- 
 trol or vary the formal judgment entered, 
 yet, in the absence of higher proof, they are 
 entitled to their due weight as to what trans- 
 pired or was done in the case : Keller v. Kil- 
 lion, 9-339. 
 
 198. The bar docket constitutes no part of 
 the records of the coui't, and can only become 
 a part of the record in a particular case by 
 being incorporated into or sufficiently identi- 
 fied by a bill of exceptions : Qifford v. Cole, 
 57-373. 
 
 199. Judgment; entry of: A judgment 
 cannot exist merely in the memory of the 
 officers of the court, or a memorandum 
 entered on books not intended to preserve the 
 record of judgments : Balm v. Nunn, 63-641. 
 
 200. It is essential to the validity of the 
 judgment that it appear upon the record book. 
 This is approved by the judge, and consti- 
 tutes the only proof of his acts : Case v. Plato, 
 54-64. 
 
 201. The judgment docket is intended to 
 show merely an abstract of the judgment, 
 and it is contemplated that it shall be made 
 
39S 
 
 COURTS, II, c. 
 
 Records. 
 
 up from a judgment previously entered in 
 the judgment book : iVid. 
 
 202. Where the entry of judgment in the 
 record book was blank as to am.ount of recov- 
 ery except the amount of costs, held, that it 
 was only an entry of judgment to the amount 
 of such costs, although the judge's calendar 
 contained an entry directing the clerk to as- 
 sess the amount of i-ecovery, and the judg- 
 ment docket contained an entry of an 
 amiount so assessed by the clerk : Ibid. 
 
 203. The only legal evidence of a judg- 
 ment is the clerk's entry in the record book 
 as provided by law, and the abstract of the 
 same in the judgment docket. It cannot be 
 proved by a memorandum in the judge's 
 calendar : Miller v. Wolf, 63-233. 
 
 204. Where, at the time of a purchase of 
 land from a judgment debtor, the amounts 
 of the judgment and costs were left blank, 
 but were afterward filled up by the clerk in 
 vacation, held, that as the judgment was at 
 least valid as to the costs, the purchaser did 
 not take free from the lien of the judgment : 
 Lindv. Adams, 10-398. 
 
 205. A judgment "for costs taxed at 
 
 $ " is valid for such costs as may be taxed 
 
 in the case : Frankel v. Chicago, B. & P. R. 
 Co., 70 . 
 
 Further as to judgment for costs, see Costs, 
 §§ 53-56. 
 
 206. Judgement docket: Where the ab- 
 stract of the judgment as contained in the 
 judgment docket is introduced in evidence 
 without objection, it should be regarded as 
 evidence even without proof of the loss or 
 destruction of the original : Moore v. MeKin- 
 ley, 60-867. 
 
 207. Where the entry upon the judgment 
 docket was erroneous by reason of a mistake 
 of initials, and it did not appear whether 
 there was a mistake in the judgment record 
 or not, held, that it would be presumed, for 
 the purpose of supporting an attachment 
 proceeding, that the judgment was properly 
 entered upon the record : Preston v. Wright, 
 60-851. 
 
 208. Indexing jiulgmeut (locket: If a 
 party is not charged with constructive notice 
 of a judgment by what appears in the index 
 book, he is not bound to look further, and is 
 therefore not bound by what appears of rec- 
 ord ; so hdd, where there was a mistake in 
 
 the fli'st name of the party against whom 
 judgment was rendered : Thomas v. Desney, 
 57-58. 
 
 209. The entry and indexing of a judg- 
 ment as A. B. v. C. D. et al. does not oper- 
 ate as notice to strangers of such judgment as 
 against co-defendants of C. D. , whose names 
 do not appear : Cummings v. Long, 16-41. 
 
 210. A judgment not indexed is not notice 
 to the purchaser at foreclosure sale of prem- 
 ises upon which such judgment would be a 
 lien, and the holder of such judgment cannot 
 therefore redeem in equity from such sale: 
 Sterling Mfg. Co. v. Early, 69-94. 
 
 211. Even though a judgment is not prop- 
 erly indexed, a sheriff's deed thereunder duly 
 recorded imparts notice of all prior proceed- 
 ings : Cushing v. Edwards, 68-145. 
 
 212. Notice of judgment or order: A 
 party is bound to know and take notice of 
 any judgment or order that is entered in an 
 action to which he is properly made a party, 
 whether the records of the court are read 
 from time to time as required by statute, or 
 not: Finch v. Hollinger, 47-173. 
 
 213. After judgment a party is not bound 
 to take notice of further proceedings: 
 Wright v. Leclaire, 3-331. 
 
 As to correction of entry without notice, 
 see infra, §g 243-246. 
 
 As to notice of filing pleadings, motions, 
 etc., see supra, §§ 185-188. 
 
 214. Signing and approval of record: The 
 salutary provisions as to the signing of the 
 record by the judge are directory only, and 
 the failure to comply therewith does not 
 render the judgment void : Vanfleet v. Phil- 
 lips, 11-558; O'Sare v. Leonard, 19-515; 
 Cliilds V. McChesney, 20-431 ; Hamilton v. 
 Barton, 20-505. 
 
 215. An approval of the entries at any suc- 
 ceeding term relates back to the time of the 
 entry, and is as effectual as if given at that 
 time: Vanfleet v. Phillips, 11-55S. 
 
 216. The reading, approval, andsigningof 
 a judgment entry made in vacation at the 
 next term of court does not make it valid 
 where there is no authority to enter a judg- 
 ment in vacation. Approval at the subse- 
 quent term is only allowable as to entries 
 authorized to be made in vacation : Townsley 
 V. Morehead, 9-565; McClure v. Owens, 31- 
 188 ; Spear v. Fitchpatriok, 87-137. 
 
COURTS, II, o. 
 
 JiOO- 
 
 Records. 
 
 217. Although the record of the judgment 
 is not read and approved until the term after 
 it is made, exceptions thereto must be taken 
 at the term when the judgment is entered : 
 State V. Orwig, 34-113. 
 
 218. The expii-ation of the term of a judge 
 hefore the approval and signing of the record 
 does not make judgments rendered by him 
 void: Tracy V. Beeson, 47-155. 
 
 2 1 9. A judgment is valid though the rec- 
 ord be not signed by the judge : so held as 
 to a decree signed by the judge in vacation, 
 filed with the clerk, and entered by him 
 without the record being signed; Truer v. 
 Whitman, 5&-443. 
 
 220. Although the practice of procuring 
 the signature of the judge to a form of decree 
 is to be commended as tending to secure ac- 
 curate records, such signature is not the 
 signature of the record contemplated by the 
 statute : Bosch v. Kassing, 64-313. 
 
 221. Entry by clerk without authority: 
 The clerk has no authority to enter up a de- 
 cree not warranted by the entry on the 
 judge's calendar: Smith v. Cumins, 53- 
 143. 
 
 222. Signature of clerk: As the court 
 knows its own clerk and his deputy, it is not 
 necessary that the signature of either one of 
 them to a jurat should be authenticated by 
 an official seal : Finn v. Rose, 13-565. 
 
 223. Correction of records: During all the 
 term the record is under the control of the 
 court, and at any time before adjournment 
 an order of nonsuit or a judgment by default 
 may be set aside on proper showing : Taylor 
 V. Lusk, 9-444. 
 
 224. The court has the power at any time 
 during the term to have the record corrected 
 so as to conform to its ruhng: Bobbins v. 
 Neal, 10-560. 
 
 225. The court has dfecretionary power to 
 modify or reverse any order during the term 
 at which it is made: Chapman v. Allen, 
 Mor., 33. 
 
 226. The court, upon discovering an error 
 or mistake in its ruling, may, before the rec- 
 ord is signed, or at any time during the term 
 at which it is made, amend or expunge the 
 record so as to correct such mistake : Brace 
 V. Grady, 36-353. 
 
 227. A default improperly entered may be 
 set aside without following the provisions of 
 
 statute with reference to setting aside de- 
 faults : Baals v. Shules, 39-507. 
 
 228. The power of the courts to revise, 
 correct and change their sentences, at the 
 term at which they were pronounced and be- 
 fore anything has been done under them, 
 has long been recognized both in this country 
 and in England, and any doubt as to the ex- 
 istence of the power is removed by statutory 
 provision. (Code, §178): Stater. Dougherty, 
 70 . 
 
 229. A court may, on its own motion, cor- 
 rect its record-; and may, upon discovering 
 mistake or error in its rulings, expunge the 
 first ruling from the record and make a dif- 
 ferent one: Wolmerstadt v. Jacobs, 61-373. 
 
 230. Until the record is signed, it is not 
 conclusive upon the court as against a bill of 
 exceptions subsequently signed : Shepherd v^ 
 Brenton, 15-84. 
 
 231. A total omission to make any entry 
 of record may be supplied at the succeeding, 
 term : Tracy v. Beeson, 47-155. 
 
 232. Correction at subsequent term: The 
 power to change entries, on account of evi- 
 dent mistake, is not necessarily limited to the 
 term next succeeding the one at which they 
 were made. A correction in a particular 
 case, held proper under peculiar circum- 
 stances: Hurley v. Dubuque Gas, etc., Co,, 
 8-374. 
 
 233. Entries made at a previous term may 
 be altered and corrected for mistake when it 
 is clearly made to appear: State v. McComb,. 
 18-43, 48. 
 
 234. Where a verdict is returned but no 
 judgment rendered thereon at that term, it is 
 not error to render such judgment at a suc- 
 ceeding term to supply the omission : Shep- 
 hard v. Brenton, 30-41. 
 
 235. The statutory provision that entries- 
 made and signed at a previous term can be 
 altered only to correct an evident mistake 
 (Code, § 179) does not deprive the court of the 
 power to make a nunc pro tunc entry at a, 
 subsequent term, of a fact, such as consent of 
 parties to trial by a certain method, etc. ; 
 Buckwalter v. Craig, 34-315. 
 
 236. A nunc pro tunc order showing cer- 
 tain facts in regard to the impaneling of a 
 grand jury at a previous term, held allow- 
 able : State v. Munzenmaier, 34-87. 
 
 237. By analogy these provisions will be- 
 
400 
 
 COURTS, II, o. 
 
 Becords. 
 
 followed in the supreme court: Roberts v. 
 Gorbiii, 26-315, 331. 
 
 238. The statute provides for the correction 
 of entries made, approved and signed at a 
 (not the) previous term: Goldsmith v. Clau- 
 sen, 14-278. 
 
 239. The proceeding by motion to correct 
 a judgment entry reciting a judgment against 
 a party, where it appears that no judgment 
 was in fact rendered, is not limited to one 
 year : Shelley v. Smith, 50-543. 
 
 240. Even though the court has the power 
 to correct its record after the term and before 
 it is signed, it should not do so unless it clearly 
 and beyond cavil appears that the correc- 
 tion should be made. Except for the purpose 
 of correcting some mistake, the record, at 
 least after the adjournment of the term, is 
 an absolute verity in all courts, including the 
 court making it, and it is doubtful whether a 
 court should correct it upon affidavits after 
 the adjournment of the term, unaided by 
 anything in the record, or within the recol- 
 lection of the judge, which tends to corrobo- 
 rate the facts stated in the affidavits. If the 
 court after the adjournment of the term re- 
 fuses to correct its record upon parol evidence, 
 the supreme court will not interfere unless 
 there is record evidence supporting the claim 
 that there is a mistake in the record : State 
 V. Crosby, 67-352. 
 
 241. Where a judge at a term of court 
 signs a decree which is filed with the papers 
 but not recorded at that terra , and before the 
 next term of court goes out of office, the 
 court at the succeeding term cannot consider 
 the cause as still open but should enter the 
 decree previously signed: Tracy v. Beeson, 
 47-155. 
 
 242. Action of the judge in ruling upon a 
 motion for supplying an omission in the i-ec- 
 ords will not be overruled on appeal where 
 it appears that the facts which it is sought to 
 make of record transpired in the trial before 
 him, and that the evidence upon which he 
 acted in correcting the record was conflict- 
 ing: Stookdalev. Johnson, 14-178. 
 
 243. Notice of correction : The court may 
 at the next term after making an entry in 
 vacation proceed to correct or expunge it 
 without notice to the party at whose instance 
 it has been made. For all purposes connected 
 with the approval of the entry the party must 
 
 be regarded as in covurt : Carpenter v. Zuver, 
 56-390. 
 
 244. After the entry of final judgment in 
 the case and approval thereof by the court, 
 it loses jurisdiction to make an order setting 
 aside such judgment, even during the term, 
 after the attorney for the party has left the 
 court : Hawkeye Ins. Co. v. Duffie, 67-175. 
 
 245. A motion at a subsequent term to 
 modify the decree in a matter affecting 
 another party should not be sustained, no 
 notice of such motion having been given to 
 the party adversely interested: Wetmore v. 
 Harper, 70 . 
 
 246. The court cannot, after a judgment, 
 execution and sale, so amend its record as to 
 show proper service of notice which did not 
 before appear, without notice of the proceed- 
 ing for such amendment having been given 
 to the opposite party : McGlaughlin v. 
 CRourlee, 12-459. 
 
 That a party is bound to take notice of the 
 entry of a judgment or order, see supra, 
 §§ 213, 313. 
 
 247. Correction of evident mistalie: An 
 amendment of the record upon motion of one 
 of the parties, supported by an affidavit set- 
 ting forth an agreement as to what should 
 be submitted to the court, cannot be made 
 under the authority to correct an evident 
 mistake : Eno v. Hunt, 8-436. 
 
 248. Entry nunc pro tunc: Where the 
 court has failed to make record entry of an 
 essential act, such omission may be supplied 
 upon motion nunc pro tunc, but such entries 
 are limited to supplying omissions occurring 
 through oversight or negligence, and cannot 
 be made to alter or expunge a record : Good- 
 rich V. Conrad, 28-398. 
 
 249. Held not error, in an action on a bail 
 bond, to admit in evidence the entry of the 
 court ordering the bond filed nunc pro tunc, 
 it appearing that the bond had been in fact 
 deposited in the clerk's office at and ever 
 since the date upon which it was so marked 
 as filed : State v. Guisenhause, 30-337 ; State 
 V. Patterson, 33-575. 
 
 As to judgment entered nunc pro tune, see 
 Judgments, §§ 143, 144. 
 
 250. Supplying lost records: The power 
 of supplying a new record where the original 
 has been lost or destroyed is one which per- 
 tains to courts of record of general jurisdiction 
 
COURTS, II, c, d. 
 
 401 
 
 Records. — Rules; assignment of causes. 
 
 independent of legislation. It is inherent in 
 such courts, and is not taken away in refer- 
 ence to judgments by the statute with refei-- 
 ence to an action on a judgment the record 
 of which has been lost or destroyed : Gam- 
 mon V. Knudson, 46-455. 
 
 251. In a proceeding to supply lost records 
 it is error to make tlie substitution in such 
 form as to bind a party holding under the 
 original party to the proceeding without 
 proof that the record as it originally existed 
 was such as to be binding upon the new 
 party: McDonald v. Des Moines Valley R. 
 Co., 61-192. 
 
 252. Where an indictment is lost, the court 
 may, upon motion, substitute a copy, and 
 proceed thereon as upon the original : State 
 V. Rivers, 58-103; State v. Stevisiger, 61-623. 
 
 253. Evidence as to the contents of records 
 of the court destroyed by fii-e, held suffi- 
 cient in a particular case to establish a de- 
 cree of divorce rendered therein : In re Es- 
 tate of Edwards, 58-431. 
 
 254. Where a pleading supposed to be lost 
 is supplied by a copy and afterward the 
 original is found, the substitute should be, on 
 motion, stricken from the files: Sweet v. 
 Brown, 61-669. 
 
 As to restoring records of judgments which 
 have been lost or destroyed, see Judgments, 
 (5g 145, 146. 
 
 255. After the taking of an appeal the 
 lower court may correct its record: Maxon 
 V. Chicago, M. <fc St. P. R. Co., 67-236; 
 Mahaffy v. Mahaffy, 63-55. 
 
 256. The power to supply lost records may 
 be exercised whenever the protection of the 
 rights of parties demands it. Therefore, 
 held, that where, after the perfection of an 
 appeal, the evidence in the case was lost, so 
 that the appeal could not be prosecuted, the 
 proper remedy was to apply to the lower 
 court to supply such record by substitution, 
 and that the loss of the record was not a 
 ground for a new trial: Loom is v. McKenzie, 
 48-416 ; Steiner v. Steiner, 49-70. 
 
 257. If the record of the lower court does 
 not correctly state the facts, a party desiring 
 to appeal should prosecute the correction of 
 the record there; it cannot be changed or 
 corrected on appeal: Duffees v. Sherman, 
 48-387. 
 
 258. In a certain sense the court below re- 
 
 VoL. 1—26 
 
 tains jurisdiction so long as anything remains 
 to be done by it. It may order a lost record 
 to be substituted, and do whatever else ia 
 proper to be done to enable the supreme coui-t 
 to review the alleged errors: Becker v. 
 Becker, 50-139 ; State v. Dillard, 52-749. 
 
 259. Presumption in favor of record: 
 The records of a court, regular upon their 
 face, have a large degi-ee of sanctity attached 
 to them, and are not to be lightly overcome: 
 Wheeler V. Cox, 56-36. 
 
 260. Where the record of the court states 
 an act of the court, it will be presumed to 
 have occurred in open court: State v. Hir- 
 ronemus, 50-545. ' 
 
 See further. Judgments, §§ 147-151. 
 
 261. Complete record: The provision of 
 the statute as to making a complete record in 
 cases where title to land is involved applies 
 only to cases where plaintiff on one side 
 claims title, legal or equitable, and the de- 
 fendant disputes the plaintiff's title, claiming 
 title in himself or another : Smith v. Cumins, 
 52-143. 
 
 262. In a proper case for making a com- 
 plete record, all that should be recorded is 
 the original notice and return, the pleadings 
 and the judgment or decree. Depositions and 
 matters of evidence sliould not be recorded : 
 Ihid. 
 
 263. Incumtirance book; index: An entry 
 by the sheriff in the incumbrance book of a 
 levy of attachment as provided for by statute 
 becomes notice though not indexed : Blodgett 
 V. Huiscamp, 64^548. (But as to index of 
 judgments, see supra, §§ 208-211.) 
 
 d. Rules; assignment of causes. 
 
 264. Rules: As to power to make rules, 
 method of adoption, publication, etc., see 
 State V. Ensley, 10-149. 
 
 265. A rule of the circuit court in regard 
 to filing transcripts on appeals from justices, 
 upheld : Finders v. Yager, 39-468. 
 
 266. It may be provided by rules of the 
 court that defendant shall be required to ap- 
 pear and answer by noon of the first day 
 instead of the second day of the term; 
 MoGrew v. Downs, 67-687. 
 
 267. Rules of court propei-ly adopted, until 
 repealed or changed, have the force and effect 
 of law as applied to the rights of parties, and 
 
402 
 
 COURTS, II, e — CRIMINAL CONVERSATION. 
 
 Process. — Condonation. 
 
 in their construction the same rules should be 
 applied: David v. Aitna Ins. Co., 9-45. 
 
 288. A rule of court providing that wit- 
 nesses subpoenaed in different cases between 
 different parties should draw but one per 
 diem, upheld : Meffert v. Dubuque, B. & M. 
 R. Co., 34-430. 
 
 289. A rule of court must be abrogated in 
 the same manner and under the same au- 
 thority by which it is made. It cannot be 
 abolished by an order of the judge resting 
 only in parol : Burlington & M. R. B. Co. 
 V. Marchand, 5-468. 
 
 270. The supreme court cannot take notice 
 of rules of a district and circuit court unless 
 they are embodied in the record: Lyon v. 
 Byington, 7-422; Horseman v. Todhunter, 
 12-230. (This is now changed by statute, 
 Code, § 2709.) 
 
 ii71. Assignment of causes: The court 
 may, after an assignment of causes has been 
 made, make a re-apportionment, and if the 
 party is not taken by surprise, or thus pre- 
 vented from obtaining his testimony, he will 
 have no ground of objection : Elliott v. Cad- 
 wallader, 14-67. 
 
 272. Dropping' case from docket: Juris- 
 diction of the cause is not lost by the fact 
 that there is no formal continuance from 
 term to term, or that the cause is dropped 
 from the docket : Langford v. Ottumwa 
 Water Power Co., 53-415. 
 
 e. Process. 
 
 273. Process defined: Davenport v. Bird, 
 34-524. 
 
 274. Attestation: In the attestation of a 
 writ under seal, the seal should be referred 
 to: Eiggs v. Bagley, 2 G. Gr., 383. 
 
 275. Process issued by the clerk in which 
 the teste recites " witness my hand," signed 
 with tlie name of the clerk, is sufficient with- 
 out reciting such name in the teste itself: 
 East V. Parks, 4 G. Gr., 80. 
 
 276. Abuse of process: A party to the suit 
 can gain nothing by fraud or violence under 
 pretense of process, nor will fraudulent or un- 
 lawful use of process be sanctioned by the 
 courts. In such case parties will be restored 
 to the rights and position they possessed and 
 occupied before they were deprived thereof 
 by fraud, violence, or abuse of process: 
 Reifsnyder v. Lee, 44^101. 
 
 277. The law will not permit any one to 
 gain any benefit or advantage by the fraudu- 
 lent use or other abuse of its process : Patter- 
 son V. Pratt. 19-358. 
 
 278. Where an officer aiTested a party out- 
 side of the limits of his county under the 
 representation that he had a writ of attach- 
 ment, and got possession of property there- 
 under, held, that the process had been 
 improperly used and that the judgment 
 obtained thereunder should be discharged: 
 Pomroy v. Parmlee, 9-140. 
 
 279. "When a defendant is put on trial un- 
 der indictment for a crime charged to have 
 been committed in tliis state, it is no defense 
 that he was arrested in another state without 
 authority and brought to this state by force 
 and against his will : State v. Ross, 21-467. 
 
 280. The court will not, upon the trial of 
 a criminal prosecution under the plea of not 
 guilty, inquire as to whether or not defendant 
 was improperly brought within the jurisdic- 
 tion of the court : State v. Day, 58-678. 
 
 COVENANTS. 
 
 See Conveyances, V. 
 
 CRIMINAL CONVERSATION. 
 
 As to actions for Seduction, see that title. 
 
 1. Coudonatiou : In an action for criminal 
 conversation evidence of subsequent matri- 
 monial cohabitation cannot operate to defeat 
 the husband's right of recovery even if it 
 may be considered in mitigation of damages : 
 Verholf v. Van Houwenlengen, 21-429. 
 
 2. The fact that after knowledge of the 
 wife's criminality plaintiff has continued to 
 live with her upon the same terms as before 
 does not show assent or connivance on his 
 part : Stumm v. Hummel, 39-478. 
 
 3. Damages: In an action for criminal con- 
 versation the fact that plaintiff has not lost 
 the society or affection of his wife and that 
 his family has not been broken up will not 
 preclude recovery for more than nominal 
 damages: Ibid. 
 
 i. Evidence of premeditated design to com- 
 mit the injury against plaintiff is receivable 
 to show the full extent of the injury : Ibid. 
 
 5. In an action the gravamen of which is 
 criminal conversation, plaintiff cannot re- 
 
CRIMINAL CONVERSATION — CRIMINAL LAW. 
 
 403 
 
 Miscellaneous. 
 
 cover damages for the alienation of the wife's 
 affections otherwise than by debauching: 
 Wood V. Mathews, 47-409, 
 
 6. Negligenee: The tact that by reason of 
 the confidence in his wife entertained by 
 plaintiff defendant had opportunity to com- 
 mit the wrong will not defeat the husband's 
 right to recover in the absence of knowledge 
 of the criminal intimacy or of circumstances 
 from which his assent can be presumed ; Ibid. 
 
 7. Intimacy before marriage: Where the 
 husband married the wife upon the recom- 
 mendation of defendant that she was a good 
 girl and the husband believed her to be so, 
 held, that criminal intimacy of defendant 
 with her before marriage, that being her only 
 bad conduct, could not be considered in mit- 
 igation of damages : Ibid. 
 
 S. PreTious chastity: While the fact that 
 plaintiflE's wife before marriage had been 
 guilty of unchaste conduct will not take away 
 the right of action for criminal intimacy 
 subseqiient to marriage, it may be shown to 
 reduce the amount of damages, and it is also 
 proper to show, by way of offsetting such 
 evidence, that such misconduct, prior to mar- 
 riage, was confined to relations with defend- 
 ant himself : Conway v. Nicol, 34^533. 
 
 9. Limitation ofactioii: Although the fact 
 of illicit intercourse prior to the period of the 
 statute of limitations should not be proved 
 for the purpose of establishing the, right to 
 recover therefor, yet it may be shown to the 
 jury and considered by them to strengthen 
 evidence introduced in proof of acts of adul- 
 tery committed within the period of the 
 statute of limitations : Ibid. 
 
 10. Divorce not a bar: A subsequent di- 
 vorce is not a bar to the prosecution of an 
 action for criminal conversation: Wood v. 
 Mathews, 47-409. 
 
 11. Evidence: It is material in actions for 
 criminal conversation to ascertain upon what 
 terms the husband and wife lived together 
 before the seduction, but in a particular case 
 held, that it was immaterial to show state- 
 ments made by them as to the failure of the 
 husband to support and maintain her: Kil- 
 bum V. Midlen, 22-498. 
 
 12. In an action for criminal conversation 
 the marriage may be proven by evidence of 
 the parties or of others, record evidence not 
 being required : Ibid. 
 
 13. Proof of criminal intercourse between 
 defendant and plaintiff's wife occurring before 
 the marriage to the latter, held admissible 
 without the fact being pleaded, as tending to 
 establish the subsequent acts: Stumm v. 
 Hummel, 39-478. 
 
 14. An instrncfion allowing the jury to 
 take into consideration the resemblance be- 
 tween defendant and the child of plaintiff's 
 wife, claimed to be the offspring of the illicit 
 connection, provided their judgment and ex- 
 perience teach them that there is anything 
 reliable in such resemblances, that it would 
 be safe for them to form an opinion upon, 
 held not erroneous : Ibid. 
 
 For other cases as to resemblance of child, 
 see Evidence, §§ 813-815. 
 
 CKIMINAL LAW. 
 
 I. What acts criminal. 
 1. In general. 
 S. Capacity and intent. 
 
 a. Infancy, coverture, insanity 
 
 and intoxication. 
 
 b. Intent; ignorance or mistake. 
 
 c. Defense of person or property. 
 
 d. Negligence or recklessness. 
 
 3. Degree of connection with the act; 
 principal and accessory; combi- 
 nation. 
 n. Paetichlak classes of cEiims. 
 
 1. Offenses against life or the person. 
 
 a. Homicide. 
 
 b. Maiming; disfiguring. 
 
 c. Rape. 
 
 d. Robbery. 
 
 e. Assault; assault and battery; 
 
 assaults with intent to com- 
 mit other crimes; malicious 
 threats; carrying concealed 
 weapons. 
 3. Offenses against property. 
 
 a. Burglary and other breakings 
 
 and enterings. 
 
 b. Arson and statutory burnings. 
 
 c. Larceny. 
 
 d. Compound larcenies. 
 
 e. Embezzlement. 
 
 t. Receiving stolen property. 
 
 g. Malicious mischief; trespass 
 upon land; injuries to ani- 
 mals. 
 
404 
 
 CRIMINAL LAW. 
 
 Miscellaneous. 
 
 n. Pabticulae classes of crimes— con. 
 
 in. Procedure IN courts OF RECORD— con. 
 
 3. 
 
 Cheating, fraud and conspiracy. 
 
 5. 
 
 Acquiring jurisdiction; arrest; ex- 
 
 
 a. Cheating by false pretenses and 
 
 
 tradition. 
 
 
 otherwise. 
 
 6. 
 
 Preliminary examination. 
 
 
 b. Wrongful disposal or conver- 
 
 7. 
 
 Grand jury and its action. 
 
 
 sion of property; selling 
 
 
 a. Formation; challenges. 
 
 
 mortgaged property. 
 
 
 b. Finding and presenting indict- 
 
 
 c. Conspiracy. 
 
 
 ment. 
 
 4 Forgery and counterfeiting. 
 
 8. 
 
 The indictment; its form and req- 
 
 6. 
 
 Offenses against public justice. 
 
 
 uisites. 
 
 
 a. Perjury. 
 
 9. 
 
 Proceedings on indictment before 
 
 
 b. Compounding felonies. 
 
 
 trial. 
 
 
 c. Resisting officers; assisting 
 
 
 a. Arraignment and misnomer. 
 
 
 prisoners to escape. 
 
 
 b. Presence of defendant at ar- 
 
 
 d. Wrongfully acting as officer. 
 
 
 raignment and afterward; 
 
 6. 
 
 Offenses against right of suffrage. 
 
 
 mental condition. 
 
 
 a. Bribery of electors. 
 
 
 c. Counsel for defendant and for 
 
 
 b. Illegal voting. 
 
 
 prosecution. 
 
 7. 
 
 Offenses against chastity, morality 
 
 
 d. Motion to set aside indictment. 
 
 
 and decency. 
 
 
 e. Demurrer to indictment. 
 
 
 a. Seduction. 
 
 
 f. Pleas. 
 
 
 b. Enticing away female child; 
 
 
 g. Dismissal of prosecution. 
 
 
 defilement. 
 
 10. 
 
 Trial; new trial; arrest of judg- 
 
 
 c. Adultery. 
 
 
 ment; sentence. 
 
 
 d. Bigamy. 
 
 
 a. Time; continuances. 
 
 
 e. Incest 
 
 
 As to Continuances in gen- 
 
 
 f. Abortion. 
 
 1 
 
 eral, see that title. 
 
 
 g. Exposing child. 
 
 ! 
 
 b. Trial by jury; formation of 
 
 
 h. Prostitution and lewdness; keep- 
 
 
 jury; challenges. 
 
 
 ing or leasing houses of ill- 
 
 
 0. Separate trials of defendants 
 
 
 fame. 
 
 
 jointly indicted. 
 
 
 L Betting and gambling; keeping 
 
 
 d. Conduct of the trial; opening 
 
 
 gambling-house. 
 
 
 and closing; introduction of 
 
 
 j. Lotteries. 
 
 
 evidence. 
 
 
 As to contract in violation of 
 
 
 6. Instructions. 
 
 
 Sunday laws, see Contracts, 
 
 
 f. Conduct of jury. 
 
 
 §§ 300-317. 
 
 
 g. Finding and return of ver- 
 
 8. 
 
 Nuisances, including obstruction of 
 
 
 dict. 
 
 
 highways and railways, and keep- 
 
 
 h. New trial. 
 
 
 ing disorderly houses. 
 
 
 L Arrest of judgment. 
 
 9. 
 
 Misdemeanors in general. 
 
 
 j. Sentence. 
 
 10. 
 
 Riots. 
 
 11. 
 
 Jeopardy; previous conviction or 
 
 11. 
 
 Police regulations. 
 
 
 acquittal. 
 
 m. Peocedube in coukts op record. 
 
 12. 
 
 Bail. 
 
 1. 
 
 What deemed a criminal proced- 
 
 13. 
 
 Evidence; burden of proof ; amount 
 
 
 ure. 
 
 
 of proof. 
 
 a. 
 
 Prevention of crime; security to 
 
 
 a. Circumstantial evidence; fail- 
 
 
 keep the peace. 
 
 
 ure to produce evidence; iden- 
 
 3. 
 
 Extent of jurisdiction. 
 
 
 tity of defendant; alibi. 
 
 
 a. Venue. 
 
 
 b. Defendant as a witness. 
 
 
 b. Change of venue. 
 
 
 c. Testimony of parties jointly irir 
 
 4. 
 
 Limitation of time for commendng 
 
 
 dieted; accomplices; husband 
 
 
 prosecution. 
 
 
 or wife. 
 
CRIMINAL LAW, I, 1; 3, a. 
 
 405 
 
 What acts criminal ; infancy ; coverture ; insanity. 
 
 TTT . Procedure in courts of record, Evi- 
 dence, etc. — continued. 
 
 d. Confessions or admissions of 
 
 defendant. 
 
 e. Acts, declarations and conduct 
 
 of defendant; state of feeling; 
 other criminal acts. 
 
 f. Defendant's good character. 
 
 g. Declarations of per son injured; 
 
 dying declarations. 
 h. Burden of proof and amount 
 of evidence; reasonabledoupt. 
 
 14. Appeal. 
 
 15. Imprisonment. 
 
 16. Fines and forfeitures. 
 
 17. Costs. 
 
 18. Pardons. 
 
 rv. Procedure in inferior courts. 
 
 As to procedure before magistrates on. 
 preliminary information, see supra, 
 III, 6. 
 
 As to procedure on binding over to 
 keep the peace, see supra, III, 2. 
 
 I. What acts criminal. 
 1. In general. 
 
 1. Common law crimes: While the prin- 
 ciples of the common law enter into all our 
 criminal adjudications, where the jurisdic- 
 tion of our courts has been established by 
 law, etui they do not confer upon the courts 
 the power to try and punish an offense that is 
 not made a crime by the supreme law-making 
 power of the state : Estes v. Carter, 10-400. 
 
 2. Therefore, held, that as there is no 
 provision in the statute for the punishment 
 of the common law crime of sodomy, it is 
 not actionable per se to charge a person with 
 the commission of such crime : Ibid. 
 
 3. Common law definitions: Where the 
 Code declares a crime punishable and pro- 
 vides a punishment for it, the definition of the 
 crime may be determined from the common 
 law. So held as to the offense of assault and 
 battery which is made punishable by the Code 
 but is not defined : State v. Twogood, 7-252. 
 
 4. Strict construction of penal statutes: 
 Criminal statutes are inelastic and cannot 
 by construction be made to embrace cases 
 plainly without the letter though within the 
 reason and policy of the law : State v. Lovell, 
 23-304. 
 
 5. Forfeiture: The fact that an act or 
 omission renders a party liable to a pecun- 
 iary forfeiture, which when collected goes 
 into the public treasury, does not render the 
 act or omission a crime: Polk County v. 
 Hierh, r7-361. 
 
 2. Cwpaoity cmd intent. 
 
 a. Infancy, ooverttire, insanity a/nd 
 intoxication. 
 
 6. Infancy: The law presumes that per- 
 sons between the ages of seven and fourteen 
 years are incapable of committing any crime, 
 and in a prosecution for the commission of 
 a crime by a person between those ages, it is 
 incumbent upon the state to show that de- 
 fendant had suflScient capacity to know that 
 he was committing a crime before he can be 
 convicted : State v. Fowler, 52-103. 
 
 7. Coverture: A prima facie case of co- 
 ercion such as to relieve a married woman 
 from liability for her criminal act is made 
 when it is shown that the act was done in 
 the presence of her husband : State v. Fitz- 
 gerald, 49-260. 
 
 8. Insanity, delusion: In case of partial 
 insanity or delusion, if the act, which is done 
 under the impulse of the insane delusion, is 
 one which defendant knew at the time to be 
 contrary to law, he is punishable. The law 
 considers him as to his responsibility in the 
 same condition as if the facts in which his 
 delusion exists were real : State v. Mewherter, 
 46-88. 
 
 9. A defendant claiming exculpation on 
 the ground of insanity must make it appear 
 from all the facts and circumstances of the 
 act as disclosed by the testimony that he was 
 insane and that the offense was the offspring 
 of such insanity. Whilst a person resting 
 under a peculiar delusion as to some particu- 
 lar matter, and perfectly sane as to other 
 matters, cannot be regarded as sane, yet he 
 would be criminally responsible for his acts 
 unless they could be attributed to his particu- 
 lar delusion : State v. Stickley, 41-232. 
 
 10. Insane impulses: If defendant's act 
 was caused by mental disease or unsound- 
 ness which destroyed his power to rationally 
 comprehend the nature and consequences of 
 his act, and which, overpowering his will, 
 
406 
 
 CRIMINAL LAW, I, 2, a. 
 
 Insanity. 
 
 irresistibly forced him to its commission, he 
 is not amenable to punishment ; but if he is 
 in possession of a rational intellect and al- 
 lowed his passion to escape control, he can- 
 not claim the protection of insanity : State v. 
 Fetter, 25-67. 
 
 11. The doctrine as to insanity stated in 
 the last foregoing case has been too long fol- 
 lowed in this state and acquiesced in to be 
 now questioned : State v. George, 62-682. 
 
 12. If a person allows a feeling of passion 
 or revenge to so take possession of his mind 
 as to impel him to an act of violence, he is 
 still responsible therefor if his act was an 
 outgrowth of passion or revenge, and not of 
 insanity: State v. Stickley, 41-332. 
 
 13. If, on account of mental disease, de- 
 fendant is not able to distinguish right and 
 vrrong, and has not a knowledge and under- 
 standing of the character and circiimstances 
 of his act and power of will to abstain from 
 it, he is not legally a responsible being : State 
 V. Mewherter, 46-88. 
 
 14. Mental disease, to constitute a defense, 
 must have destroyed defendant's power to 
 comprehend rationally the consequences of 
 his act, and overpowered his will. An uncon- 
 trollable propensity must have been the effect 
 of a diseased mind to shield the perpetrator 
 of crime from punishment : Ibid. 
 
 15. The alleged insanity and the alleged 
 crime must be connected, and the latter the 
 offspring of the former, in order that the 
 perpetrator of the criminal act shall be held 
 irresponsible. Medical theorists have pro- 
 pounded doctrines respecting insanity which 
 a due regard for the safety of the commu- 
 nity and an enlightened public policy prevent 
 jurists from adopting as a part of the law : 
 State V. Hockett, 70 . 
 
 16. The jury must be clearly satisfied that, 
 at the time the crime was committed, defend- 
 ant was laboring under a mental disease or 
 monomania, such as irresistibly and uncon- 
 ti-oUably forced him to commit the crime. Un- 
 less it appears that defendant's mind was so de- 
 ranged that he did not know the nature of the 
 act, or that he was doing wrong, he is not to be 
 held irresponsible : Fonts v. State, 4 G. Gr. , SOO. 
 
 17. ETidence; presumption: Thelawpre- 
 sumes all men sane until insanity is estab- 
 lished by competent evidence to the satis- 
 faction of the jury : State v. Bruce, 48-530. 
 
 1 8. Where a condition of insanity is shown 
 to exist, it will be presumed to continue un- 
 tO the cojitrary is shown by evidence or pre- 
 sumptions arising on the facts of the case: 
 State V. Jones, 64-349, 360. 
 
 19. Inquiry as to the conduct and appear- 
 ance of accused, as indicating insanity, 
 should not he limited to the time of the al- 
 leged crime. Conduct, language and appear- 
 ance of accused previous to that time may 
 be shown, though their weight as evidence 
 of sanity or insanity diminishes as they re- 
 cede in time. Where such evidence is in- 
 troduced in connection with the opinions of 
 witnesses it may be considered as beaiing 
 upon the value of the opinions and also on 
 the independent question of insanity: Ibid. 
 
 20. While insanity may be established by 
 proofs which are not direct and positive, yet 
 the jury are not required to find insanity 
 from slight evidence, but only when the evi- 
 dence is of a reliable character, satisfying 
 them that the defense has been made out : 
 State V. Hockett, 70 . 
 
 As to evidence of insanity in general, see 
 Evidence, gg 81-83, 384-393, 859, 860. 
 
 2). Epilepsy: The fact that defendant is 
 subject to attacks of epilepsy is not necessa- 
 rily such evidence of insanity as to excuse the 
 defendant from responsibility. Common ob- 
 servation teaches that there are persons 
 afflicted with this disease who during in- 
 tervals between the convulsions are per- 
 fectly sane and rational: State v. George, 
 63-682. 
 
 22. Burden of proof: The burden of prov- 
 ing insanity rests upon the defendant and he 
 must overcome by a preponderance of evi- 
 dence the proof of sanity on behalf of the 
 prosecution : State v. Geddis, 42-364. 
 
 23. It is not necessary that the evidence of 
 insanity shall satisfy the jury beyond a rea- 
 sonable doubt ; but it is sufficient if from all 
 the evidence they are reasonably satisfied 
 that defendant is insane. If weight or pre- 
 ponderance of testimony shows insanity of 
 defendant, it raises a reasonable doubt of 
 guilt : State v. Bruce, 48-530. 
 
 24. It is error to charge the jury that, if 
 the evidence shows that the insanity of de- 
 fendant was probable, it wiU not overcome 
 the presumption of sanity, and that more 
 than this is required to satisfy the minds of 
 
CRIMINAL LAW, I, 3, b. 
 
 407 
 
 Intoxication. — Intent; ignorance or mistake. 
 
 the jury that defendant is insane. The pre- 
 sumption of sanity simply imposes the burden 
 of proof upon the defendant. It supposes an 
 equihbrium of proof, and the party holding 
 the affirmative is not entitled to judgment 
 unless he places evidence in the scale which 
 will turn it; but if the party sustaining this 
 burden gives evidence which creates a proba- 
 bility, he thereby overcomes the presumption 
 against him and is entitled to judgment: 
 State V. Jones, 64-349. 
 
 Further as to burden of proving insanity, 
 see infra, §g 1600-1604. 
 
 25. Intoxication: Unless the intoxication 
 of defendant at the time of the commission 
 of the act was so great as to deprive him of 
 the power to deliberate and form a guilty in- 
 tent, it is no excuse or palliation for the act : 
 State V. Bruce, 48-530, 532. 
 
 2G. Evidence of drunkenness on prior oc- 
 casions depriving defendant of his reason is 
 not admissible for the purpose of showing 
 that drunkenness at the time of the commis- 
 sion of the crime had that effect : State v. 
 Bart, 29-268. 
 
 27. That defendant was intoxicated with 
 liquor furnished him by the person killed is no 
 defense for a homicide : State v. Soper, 70 . 
 
 28. Intoxication may be shown in defense 
 where a specific intent is necessary to consti- 
 tute the crime charged, for instance, assault 
 with intent to commit rape. It is error to in- 
 struct that drunkenness is more of an aggrava- 
 tion than an excuse : State t). Donouan, 61-369. 
 
 29. Held, also, that evidence of intoxication 
 was admissible where defendant accused of 
 burglary sought by proof of intoxication to 
 show that the breaking and entering was not 
 with an intent to commit a crime : State v. 
 Bell, 29-316; State v. Maxwell, 42-208. 
 
 b. Intent', ignorance or mistake. 
 
 30. Presnmption of intent: Malice is 
 
 presumed from the commission of an act 
 wrongful in itself and without just cause or 
 excuse : State v. Decklotts, 19-447. 
 
 31. An instruction that an axe is a deadly 
 weapon and that the law presumes a criminal 
 intent from the use of a deadly weapon, held 
 proper in a trial for murder committed in 
 that manner: State v. Ostrander, 18-435. 
 
 32. Men are presumed to intend all the nat- 
 
 ural and probable consequences of their own 
 
 deliberate acts : State v. Jones, 70 . 
 
 As to presumption of malice in cases of 
 homicide, see, further, infra, gg 133-140. 
 
 33. Mistake: If one intentionally builds a 
 fence within the limits of a highway, which 
 impedes travel, such act constitutes a nui- 
 sance, and is none the less a nuisance on ac- 
 count of the belief of the party that the fence 
 is not in the highway. The fact of mistake, 
 however, may properly be considered in mit- 
 igation of punishment: State v. Oould, 40- 
 373. 
 
 34. Advice of counsel: It is possible that 
 one who, desiring to vote at an election, and 
 in doubt as the fact of his citizenship, should 
 take advice of counsel and then vote in ac- 
 cordance with such advice, might show that 
 fact in a prosecution for illegal voting, to dis- 
 prove or as tending to disprove any unlawful 
 or criminal intent. But proof that the voter 
 consulted others not learned in the law should 
 not be received : State v. Sheeley, 15-404. 
 
 35. Mistake wliere party is bound to 
 know the facts: Where there is by statute a 
 general inhibition upon acts of a certain 
 class, followed by a permission to do such 
 acts under certain circumstances, the person 
 undertaking to do the act must at his peril 
 know that the circumstances are such that 
 the act is legal. Therefore, held, that in the 
 case of the sale of intoxicating liquors, where 
 such sales are permitted by law under certain 
 circumstances, but are forbidden to be made 
 to minors, the seller is bound at his peril to 
 know that the person to whom sale is made 
 is not a minor : Jamison v. Burton, 43-282. 
 
 36. Where the statute makes penal the 
 sale of intoxicating liquors to a person of a 
 certain character, the fact of knowledge of 
 the condition of the person to whom such 
 sale is made is not essential to render the act 
 illegal: Church v. Higham, 44-482; Dudley 
 V. Sautbine, 49-650. 
 
 37. Where a person is engaged in a busi- 
 ness that becomes unlawful or criminal un- 
 der certain conditions, he must follow it at 
 his peril, taking care that his acts ai'e not un- 
 lawful : State v. Probasco, 62^00. 
 
 38. Therefore, held, that under an act pro- 
 viding a penalty for allowing minors to re- 
 main in a saloon, the owner of the saloon 
 and his employees are punishable for allow- 
 
408 
 
 CRIMINAL LAW, I, 3, c. 
 
 Defense of person or property. 
 
 ing a minor to remain therein, although the 
 fact of his age was not known, no vigilance 
 to ascertain the facts having been exercised : 
 Ibid. 
 
 39. Under a statute providing a punish- 
 ment for enticing away an unmarried female 
 under fifteen years of age for the purpose of 
 prostitution, held, that the fact that the de- 
 fendant believed, and had reason to believe, 
 that the person injured was over fifteen years 
 of age, constituted no defense : State v. Ruhl, 
 8^47. 
 
 40. In a prosecution for assault upon a 
 female child under ten years of age, held, 
 that in order to constitute the oilense it was 
 not necessary that defendant should know 
 that the child was under that age : State v. 
 Newton, 44-45. 
 
 Further as to evidence of intent, see infra, 
 §§ 1544-1558. 
 
 c. Defense of person or property. 
 
 41. Self-defense: Where a homicide is 
 shown to have been committed in proper 
 self-defense, there can be no conviction in 
 any form, and the law of self-defense there- 
 fore has no place in the definition of any par- 
 ticular degree of criminal homicide: State v. 
 Castello, 63-404. 
 
 42. Preventioi) of felony: A person may 
 repel force by force in defense of his person 
 or property, against one who manifestly 
 intends, by violence or surprise, to commit a 
 felony on either, and the taking of life in 
 either case is justifiable. But, when the 
 attack is not felonious, and the party assailed 
 has no reason to believe that he is in danger 
 of death or great bodily harm, he has no right 
 to take the assailant's life : State v. Kennedy, 
 20-569 ; State v. Collins, 33-36. 
 
 43. Great bodily harm: The law gives a 
 person the same right to use such force as 
 may be reasonably necessary to protect him- 
 self from great bodily harm, as it does to pre- 
 vent his life being taken : State v. Burke, 30- 
 331 ; State v. Fraunburg, 40-555. 
 
 44. An instruction that, in order to malie 
 out self-defense, the taking of the life of 
 deceased must have appeared to the defend- 
 ant reasonably necessary to save his own life, 
 held erroneous, as leaving out the feature of 
 preservation from imminent and enormous 
 
 bodily injury, felonious in its character : State 
 V. Benham, 23-154. 
 
 45. Must be necess-ary: If it is notappar 
 ent from the manner of the assault, the 
 nature of the weapon used, and the like, that 
 the assailant intended to commit a felony, 
 that the danger was imminent and that the 
 species of resistance used was necessary to 
 avert it, the party assailed is not justified in 
 resorting to the use of a deadly weapon and 
 using it in a deadly manner : State v. Thomp- 
 son, 9-188. 
 
 46. If there is no reason for the belief by 
 the defendant tliat his person is in danger of 
 death or great bodily harm, or that more than 
 an ordinary battery is intended, he has no 
 right to take the life of the assailant : Ibid. 
 
 47. The killing of an assailant is justifiable 
 on the ground of self-defense only when it 
 reasonably appears to be the only means of 
 saving the life of the party assailed or pre- 
 venting some great injury to his person. If 
 the danger which seems to threaten the per- 
 son assailed can be avoided or prevented by 
 any other means in his power, he is not justi- 
 fied in taking the life of the assailant : State 
 V. Mohan, 68-804. 
 
 48. There may be such disparity between 
 the parties in physical strength, and the as- 
 sault may be of such a ferocious character, as 
 that, although made without any weapon at 
 all, it would be highly dangerous to the person 
 assailed ; but where the possession of a weapon 
 is the only circumstance relied upon as show- 
 ing that the assault was dangerous, it is not 
 error to instruct the jury that no words 
 spoken by assaUant, however insulting, and 
 no assault without a dangerous weapon or 
 the appearance of one, would justify the per- 
 son assaulted in taking life in self-defense: 
 Ibid. 
 
 49. It is error to instruct the jury that if 
 one is attacked by a person not armed with 
 any weapon of offense, and the person as- 
 sailed is able to defend himself from such 
 attack without resort to the use of a deadly 
 weapon, or, if so assailed, he can retreat, with 
 evident safety, or if he can call others to bis 
 aid, and that is apparent to him, these cir- 
 cumstances or any of them will show the ab- 
 sence of any necessity for killing assailant. 
 WhUe it is the duty of the person assailed to 
 use all reasonable means to protect himself 
 
CRIMINAL LAW, I, 2, c. 
 
 409 
 
 Defense of person or property. 
 
 ■without resorting to a deadly weapon, yet he 
 is not bound to act with an infallible judg- 
 ment, and the facts recited, while they would 
 be circumstances against defendant, would 
 not be necessarily conclusive : State v. Cross, 
 68-180. 
 
 50. Where a defendant accused of murder 
 sought to justify the act as done in defense 
 of the life of another, and it appeared that 
 after all attempt upon the life of such other 
 person had ceased, defendant followed up 
 and assaulted deceased, held, that the facts 
 did not show any justification even though 
 it should appear that deceased was the first 
 assailant : State v. Maloy, 44^104. 
 
 51. In a particular case, held, that there 
 was nothing to justify an assault claimed to 
 have been made in defense of the person of 
 another from apprehended danger, and that 
 the court wotdd have been justified in refus- 
 ing to submit the question of self-defense to 
 the jury : IMd. 
 
 52. Danger mnst be real and immediate: 
 Even if the person acting in defense of the 
 life of another believes that assailant is going 
 to procure a weapon for the purpose of con- 
 tinuing the assault, this will not justify the 
 former in running after him and voluntarily 
 placing himself in the way of peril. The 
 party should wait to see whether there was 
 any such peril before making the assault in 
 self-defense: Ibid. 
 
 53. A person assaulted is not justified in 
 killing his assailant in self-defense unless 
 such killing was to all reasonable appearances 
 necessary to preserve his own life or prevent 
 great bodily hai-m : State v. Middleham, 63- 
 150. 
 
 54. To justify the taking of human life 
 on the ground of self-defense, there must be 
 such appearance of an impending danger as 
 that the killing of the assailant reasonably 
 seems to be the only means of preventing 
 the threatened injury : State v. Shelton, 64r- 
 333. 
 
 55. It is not error to confine the jury, in 
 considering the question as to self-defense, to 
 a case where it is absolutely necessary or 
 reasonably seems to be absolutely necessary 
 to do the act for the preservation of life, etc. : 
 State V. Crawford, 66-318. 
 
 56. Nor is it erroneous to direct the jury 
 that defendant is excusable if he acted as an 
 
 ordinarily courageous man would have done 
 under the same circumstances: Ibid. 
 
 57. Apprehension of danger; reasonable 
 belief: Where defendant attempts to show 
 that he was acting in self-defense, the charge 
 of the court should direct the jury to ascer- 
 tain whether all the circumstances in the 
 evidence show an intention on the part of 
 the assailant to take life or inflict some dread- 
 ful bodily harm. In such case the party as- 
 sailed might lawfully take the life of the 
 assailant, provided he used all the means 
 within his power to save himself or prevent 
 the assault, such as retreating if practicable, 
 or by disabling his adversary, if he might do 
 so, and it would be well to add that if the 
 defendant had reasonable ground to believe 
 that his assailant only intended an ordinary 
 assault, he would not be justified in taking 
 the life of his assailant, and if, under such 
 circumstances, defendant fatally shot de- 
 ceased, he would be guilty of at least man- 
 slaughter: State V. Benham, 23-154. 
 
 58. Where one was shot while attempting 
 to whip another with an ox gad, held, that 
 the attention of the jury should have been 
 called in the court's charge to the circum- 
 stances of the attack, the physical capacity 
 of the parties, the size and character of the 
 ox gad, etc. , as important considerations in 
 determining whether defendant was within 
 the law of self-defense when he did the 
 shooting: Ibid. 
 
 59. In determining whether defendant was 
 justified in acting in self-defense, the inquiry 
 is whether the danger was actual to defend- 
 ant's comprehension, not whether it existed 
 in fact, nor whether injury was actually in- 
 tended by deceased. But the danger must 
 be evident or actual to the prisoner, as com- 
 pared with danger remote or problematical : 
 State V. Neeley, 20-108. 
 
 60. While it is not necessary that .the 
 danger should in fact exist, there must be 
 actual and urgent danger according to the 
 defendant's comprehension as a reasonable 
 man : State v. Collins, 32-36. 
 
 61. It is not necessai-y, in order to the ex- 
 ercise of the right of self-defense, that the 
 danger should in fact be such that a party 
 could only save his life by killing his assail- 
 ant. It is only necessary that to the defend- 
 ant's comprehension as a reasonable man there 
 
410 
 
 CRIMINAL LAW, I, 3, c. 
 
 Defense of person or property. 
 
 is actual and real danger : State v. Fraunburg, 
 40-555. 
 
 62. It is error to instruct the jury that if 
 the danger be not great and imminent, and 
 the necessity urgent to use extreme force in 
 repelling the assault, the law regards the per- 
 son using such extreme force as the aggressor, 
 for the reason that such instruction om.its the 
 element of reasonable apprehension on the 
 part of the person resisting : State v. Shelton, 
 64-333. 
 
 63. It is for the jury, and not for defend- 
 ant, to judge of the apprehension of danger. 
 The question is, whether defendant, as an or- 
 dinarily prudent and cautiovis man, had rea- 
 son to apprehend loss of life or great bodily 
 harm: State v. Abarr, 39-185. 
 
 64-. The question is, not whether defendant 
 was able, from the circumstances, to form a 
 -connect judgment as to the danger, .but 
 whether the facts as they appeared justified 
 a reasonable belief of actual necessity; not 
 what conclusion defendant drew from the 
 circumstances, but what inference ought in 
 reason to have been drawn i State v. Sterrett, 
 68-76 ; State v. Archer. 69-420. 
 
 65. An instruction that defendant was not 
 justified in taking life in self-defense, unless 
 he believed that the deceased intended to take 
 his life, held proper and not materially dif- 
 ferent from the usual instruction as to hav- 
 ing reasonable ground to believe. It must be 
 assumed that what a person has reasonable 
 ground to believe he does believe, and con- 
 versely, as to what a person does not believe, 
 ithere is to his mind a lack of reasonable 
 ground to believe: State v. Donnelly, 69-705. 
 
 66. Where defendant seeks to show self- 
 defense in a prosecution for homicide, it is 
 not pi'oper to admit evidence of a particular 
 physical weakness of deceased, by reason of 
 which he was not as strong as his appearance 
 would indicate, where the fact of such phys- 
 ical weakness did not appear to liave been 
 known to defendant : State v. Cross, 68-180. 
 
 67. Use of deadly iveapon: Instructions 
 .as to when a person assaulted uould be justi- 
 fied in using a deadly weapon in self-defense, 
 considered and approved : State v. Sullivan, 
 51-143. 
 
 68. The facts of a particular case held not • 
 to support the plea that the killing was justi- 
 -fiable as in self-defense : Ibid. 
 
 69. In case of mutual combat: One who 
 
 seeks to bring on a quarrel cannot avail him- 
 self of the plea of self-defense, if he takes 
 the life of the other person engaged in the 
 quarrel: Ibid. 
 
 70. A man may not kill another, even in 
 combat, unless such killing shall be necessary 
 for his self-defense. If there is no necessity, 
 real or apparent, he may be guilty of mur- 
 der in the second degree, even though he 
 entered the combat with no intent to kiU: 
 State V. Morphy, 33-270. 
 
 71. An instruction that defendant could 
 not excuse a killing as in self-defense if he 
 sought deceased with a view to provoke a 
 difficulty or bi-ing on a quarrel, held correct: 
 State V. Stanley, 33-526. 
 
 72. If one invite or provoke an assault to 
 be made on himself, for the purpose of secur- 
 ing a pretext or opportunity for the killing of 
 the assailant, the assault will furnish no 
 justification or excuse for the killing: State 
 V. Cross, 68-180. 
 
 73. Change of conduct; hurden of proof: 
 After entering a combat there may be a 
 change of conduct or action on the part of the 
 person engaged therein, such as to entitle him 
 to claim that killing afterwards committed 
 was in self-defense, but the burden of proof as 
 to such change of conduct or action would 
 be upon him : Ibid. 
 
 74. If it appears that defendant, with a 
 loaded weapon, sought deceased with a view 
 of provoking a difficulty or with the inten- 
 tion of having an affray, and the difficulty 
 did ensue, he cannot, without some proof of 
 change of conduct or action, excuse the homi- 
 cide upon the ground that the deceased fired 
 the first shot. If it appears that the prisoner 
 did not exercise the intention of withdraw- 
 ing from the combat sought by him, but that 
 by seeking and continixing therein he 
 brought upon himself the necessity of killing 
 deceased, he cannot be regarded as acting in 
 self-defense : State v. Neeley, 20-108. 
 
 7.5. Buty to retreat: The rule requiring 
 the person assaulted to retreat before he will 
 be justified in using a deadly weapon in self-- 
 defense does not apply where the party as- 
 saulted is in his own habitation: State v. 
 Middleham, 63-150. 
 
 76. The right to take life in self-defense 
 does not arise even in case of an attempt on 
 
CRIMINAL LAW, I, 3, c. 
 
 411 
 
 Defense of person or property. 
 
 the part of the assailant to commit a felony 
 or inflict great bodily injury, if the person 
 assailed can manifestly secure his safety by 
 retreating. In such case it is not necessary 
 to take the life of the assailant to prevent the 
 consummation of the felony attempted : State 
 V. Donnelly, 69-705. 
 
 77. Where a person is assaulted with a 
 deadly weapon he is not required to fly from 
 his adversary and go to the wall before he 
 can justify the taking of the life of such ad- 
 versary in self-defense: Tweedy v. State, 5- 
 433. 
 
 78. In defending person, habitation, or 
 property, against one who manifestly intends 
 and endeavors by violence and surprise to 
 commit a known felony on either, the person 
 assailed .is not obliged to retreat, but may 
 pursue his adversary until he finds himself 
 out of danger : State v. Collins, 32-36. 
 
 79. Defense of others: Where defendant 
 claimed to have been one of a party assailed 
 by a hostile party with deadly weapons, and 
 that the killing was in self-defense, held, that 
 the jury should have been instructed that de- 
 fendant, if he had well grounded apprehen- 
 sion that their lives were in danger, was au- 
 thorized to defend his associates, even to the 
 extent of taking the lives of the assailants, 
 and that it was error to confine instmctions 
 as to self-defense to the defense of defend- 
 ant's own person : State v. Westfall, 49-328. 
 
 80. A master may do that to protect his 
 apprentice which another party could not do 
 without being the assailant or giving consid- 
 erable provocation for an assault : Orton v. 
 State, 4 G. Gr., 140. 
 
 81. In cases of trespass: A party cannot 
 justify an assault as made in protection of 
 property upon mere feai- or suspicion of an en- 
 croachment: McAuley v. State, 3 G. Gr., 435. 
 
 82. A bare trespass against the property of 
 another, not his dwelling, is not a provoca- 
 tion sufficient to warrant the owner in using 
 a deadly weapon in its defense, and if he 
 does so, and kills the trespasser, it is murder, 
 although the killing be actually necessary to 
 prevent the trespass. If it appears that the 
 intention was not to take life, the offense may 
 be extenuated and be no more than man- 
 slaughter. If the killing be done in passion 
 or heat of blood, it may be manslaughter but 
 cannot be less : State v. Vance, 17-138. 
 
 88. A party has no right to prevent or re- 
 sist a trespass which would not amount to 
 more than a misdemeanor by means calcu- 
 lated to endanger life or inflict great bodily 
 harm, and he will be civilly liable for any 
 injuiy thereby committed, even to a person 
 trespassing or committing a misdemeanor: 
 Hooker v. Miller, 37-613. 
 
 84. An assault with a revolver cannot be 
 justified on the ground that the person as- 
 saulted was a, trespasser and the purpose of 
 the assault was to remove the trespasser 
 from the premises. An attempt to use such 
 a weapon for such purpose is unlawful : State 
 V. Montgomery, 65-483. 
 
 85. A party is not precluded from availing 
 himself of the plea of self-defense for the 
 reason alone that the assault upon him was 
 provoked by his ti-espass, that trespass not 
 having been created for the purpose of pro- 
 voking the assault nor with the knowledge 
 or expectation that it would have that effect : 
 State V. Archer, 69-420; State v. Perigo, 70—. 
 
 86. Kesistance to officer: The right to 
 use force in defense of one's person and 
 property does not authorize the defendant in 
 execution to resist forcibly an officer in the 
 discharge of his duty : Colcely v. State, 4-477. 
 
 87. Burden of proof in cases of self- 
 defense: Proof of the homicide wiU not 
 throw upon defendant the burden of proving, 
 by preponderance of evidence, excuse or 
 justification arising from self-defense, where 
 such excuse or justification is apparent from 
 the evidence of the prosecution or from 
 the circumstances attending the homicide: 
 Tweedy v. State, 5-433. 
 
 88. Where defendant undertakes to estab- 
 lish that the homicide for which he is on 
 trial was committed in self-defense, it is error 
 to instruct the jury that the burden of proof 
 is upon him to show that he did it in self- 
 defense. He is entitled to acquittal if he 
 shows by the facts attending the commission 
 of the offense, as appearing from his own 
 evidence or that of the prosecution, that 
 there is a reasonable doubt that his act was 
 wilful: State V. Porter, 34-131. 
 
 89. Where there is evidence tending to 
 show that the defendant acted in self-defense, 
 the jury should be instructed that the burden 
 of'proof is on the state to show, from the cir- 
 cumstances attending the commission of the 
 
412 
 
 CRIMINAL LAW, I, 2, c. 
 
 Defense of person or property. 
 
 oflfense, that the homicide was not committed 
 in self-defense : State v. Fowler, 5^-103 ; State 
 V. Cross, 68-180, 
 
 90. Evidence of character of deceased: 
 Where defendant, charged with felonious 
 homicide, attempts to show that he acted in 
 self-defense, he may introduce evidence to 
 prove that deceased was of a quarrelsome 
 and violent disposition or character : State v. 
 Graham, 61-608. 
 
 91. The rule allowing the quarrelsome and 
 dangerous character of deceeised to be shown 
 in evidence as bearing upon the question of 
 self-defense cannot be extended to permit 
 evidence that the manner of deceased was 
 reckless : State v. Middleham, 62-150. 
 
 92. Evidence of particular fights and quar- 
 rels of deceased is not admissible as showing 
 his character as bearing upon the question of 
 self-defense : State v. Abarr, 39-185. 
 
 93. Threats: Evidence of threats by de- 
 ceased against defendant are only competent 
 when it appears that they were made in the 
 presence of or communicated to defendant: 
 State V. Sullivan, 51-142. 
 
 94. Evidence of threats made by deceased 
 against defendant in prior quarrels, and of 
 his conversations and conflicts with others, 
 held not competent : Ibid. 
 
 95. Evidence of tlireats: The . testimony 
 of a magistrate before whom defendant had 
 been bound over to keep the peace toward 
 deceased as to such proceedings and as to 
 threats made, etc., held competent as to the 
 threats and as to the arrest and proceedings 
 for the purpose of identifying the time and 
 explaining the circumstances under which 
 the threats were made : Ibid. 
 
 96. Where defendant attempted to justify 
 an assault resulting in death on the ground 
 of defense of the life of another, held, that 
 evidence of previous threats by deceased 
 against the life of the person assaulted, 
 which were not communicated nor known to 
 defendant, were not admissible: State v. 
 Maloy, 44-104. 
 
 97. The decided weight of authority is to 
 the effect that threats uncommunicated are 
 inadmissible. The one exception to the rule 
 seems to be that where evidence has been 
 given ifiaking it a question whether defend- 
 ant perpetrated the act charged in defense of 
 his person against an attempt to murder him 
 
 or inflict some great bodily harm upon him, 
 violent threats made by deceased against de- 
 fendant may be proved, though not com- 
 municated : State v. Elliott, 45-486. 
 
 98. State of feeling: While knowledge 
 of previous threats and of a violent and dan- 
 gerous natural disposition on the part of de- 
 ceased may be shown to have been com- 
 municated to defendant previous to the 
 homicide, it is not proper to show the com- 
 munication to him of the fact that deceased 
 knew of defendant's having been engaged in 
 a criminal prosecution against hiTn and that 
 he was much incensed about it, and was a 
 quick-tempered and very powerful man: 
 State V. Cross, 68-180. 
 
 99. Angry appearance of deceased im- 
 mediately preceding the encounter in which 
 the, homicide was committed, claimed to be 
 in self-defense, held admissible : Ibid. 
 
 100. But Jield, that the angry appearance 
 of deceased at an interview with defendant 
 three years previous to the homicide was not 
 admissible: Ibid. 
 
 101. The fact of newspaper comments 
 having been made with reference to a crim- 
 inal prosecution against deceased, in which 
 defendant testified against decedent before 
 the grand jury, is not admissible in evi- 
 dence: Ibid. 
 
 102. The fact that defendant testified 
 against deceased before the grand jury is not 
 competent evidence as bearing upon the 
 question whether, in taking the life of de- 
 ceased, defendant was acting in self-defense. 
 Such evidence would not tend to show the 
 character and extent of the hostility of de- 
 ceased, even in connection with evidence 
 tending to show an attack of deceased upon 
 defendant, and therefore would not tend to 
 show the character of the attack : Ibid. 
 
 103. Ill-will of deceased toward defendant 
 and former quarrels between them cannot be 
 considered in determining whether defend- 
 ant was justified in believing himself in such 
 perU that he was waiTanted in using a deadly 
 weapon in self-defense: State v. Sullivan, 
 51-142. 
 
 104. Evidence: In a prosecution for mur- 
 der committed in a general fight between 
 hostile parties, where self-defense was 
 claimed, held, that the fact that on previous 
 occasions the party to which defendant be- 
 
CRIMINAL LAW, I, 2, d ; 3. 
 
 413 
 
 NegUgence or recklessness. — Principal and accessory. 
 
 longed had sought to avoid quarrels and 
 conflicts with the other party, should have 
 been admitted : State v. Westfall, 49-328. 
 
 105. In such case, held, also, that evi- 
 dence offered by defendant that the members 
 of the opposite party had been drinking 
 should have been admitted : Ibid. 
 
 lOG. Where defendant sought to show 
 self-defense as an excuse for using a deadly 
 weapon in a manner causing bodily injury, 
 to protect himself against injuries anticipated 
 by reason of threats, held, that it was not 
 proper for his counsel to ask him, while a 
 witness, what he had done between the time 
 that the threats were made and the meeting 
 at which the injury was inflicted, to prevent 
 the party making the threats from putting 
 such threats into execution : State v. Noble, 
 66-541. 
 
 107. On a trial for murder, held proper to 
 allow a witness to state complaints made by 
 deceased to him against defendant in connec- 
 tion with the fact that he told defendant of 
 such complaints, and defendant's answer 
 thereto : State v. Moelahen, 53-310. 
 
 d. Negligence or recklessness. 
 
 108. Recklessly shooting into a crowd and 
 wounding some one not intended is crimi- 
 nal : State v. Myers, 19-517. 
 
 109. If one fires a gun recklessly or heed- 
 lessly and kills another, the offense will be 
 at least manslaughter, though the weapon 
 be pointed in the direction of deceased by ac- 
 cident, with no design to wound or kill. If 
 the act is likely to kill deceased or persons 
 generally, and death ensues, the crime is 
 murder or manslaughter according to the 
 degree of deliberation: State v. Vance, 17- 
 188. 
 
 And see further, infra, g§ 186-189. 
 
 3. Degree of connection with the act; 
 principal and accessory; cornbi- 
 nat/ion. 
 
 110. Principal and accessory: To consti- 
 tute a principal in the second degree there 
 must be a participation in the act committed, 
 and also presence either actual or construc- 
 tive. Mere presence without participation 
 will not be sufficient : State v. Farr, 83-553. 
 
 111. A person who is present aiding and 
 abetting others who actually commit the 
 assault is himself guilty with the others 
 although he does not himself actually strike : 
 State V. McOUntock, 8-303. 
 
 112. One who is actually present aiding or 
 abetting the deed, or is constructively pres- 
 ent, as by keeping watch at a distance to 
 prevent surprise or the like, is guilty as prin- 
 cipal of any act done in pursuance of the 
 original design ; State v. Nash, 7-347, 385. 
 
 113. Evidence that defendant knew that 
 horses were to be stolen and went to the 
 place, or near by, and was in position to give 
 the alarm, and also that before the stealing 
 he agreed to take care of the families of the 
 felons while they were disposing of the 
 property, held sufficient to warrant his con- 
 viction as an accessory : State v. Stanley, 48- 
 231. 
 
 114. An accessory before the fact is liable 
 for all that ensues upon the execution of the 
 unlawful act contemplated, but not for a 
 crime not contemplated by him nor neces- 
 sarily involved in the completion of the act 
 but intentionally committed by the principal. 
 Therefore, held, that an accessory who rowed 
 the principals ashore m a boat, for the pur- 
 pose of assisting them in robbing the safe of 
 a mill, was not accessory to the crime of rob- 
 bery committed by such principals in knock- 
 ing down and taking money from the night 
 watchman in charge of the mill: State v. 
 Imoas, 55-831. 
 
 115. In a particular case, held, that the 
 jury were warranted in finding that defend- 
 ant was accessory to the crime of robbery 
 committed in the prosecution of a conspu-acy 
 to commit burglary : State v. Lucas, 57-501. 
 
 116. In order to render a party liable as 
 accessory to a crime, the evidence must with 
 reasonable certainty point out the particular 
 crime as to which he is accessory and that 
 defendant had knowledge of and aided in its 
 commission. Knowledge of the crime ob- 
 tained after its commission is not sufficient : 
 State V. Clouser, 69-813. 
 
 117. Under the statutes prohibiting the 
 sale of intoxicating liquors except for speci- 
 fied purposes by persons having permits, no 
 penalty being prescribed for the purchase of 
 such liquor from a person illegally selling, 
 such purchaser is not guilty of a crime 
 
414 
 
 CRIMINAL LAW, I, 3; II, 1, a. 
 
 Principal and accessory ; combination. — Homicide. 
 
 in such sense that he may be excused from 
 testifying as to the purchase, on the ground 
 that he would thereby criminate liimself: 
 Wakemanv. C/iam&er-s, '69-169. 
 
 lis. In view of the statutory provision 
 (Code, !? 4314) which abolishes the distinction 
 between an accessory before the fact and a 
 principal, and directs that all persons con- 
 cerned in the commission of a public offense, 
 or aiding and abetting in the commission 
 thereof, although not present, must be in- 
 dicted, tried, and punished as principals, held, 
 that under an ordinary indictment charging 
 the commission of a crime, the defendant 
 might be proved guilty of aiding and abet- 
 ting in such commission: State v. Hessian, 
 58-68; Bonsell v. United States, 1 G. Gr., 
 111. 
 
 119. Under this statute, all persons con- 
 cerned in the commission of a public offense, 
 including aiders and abettors, are guilty as 
 principals: State v. Brown, 25-561; State v. 
 Thornton, 26-79. 
 
 120. Under such statutory provision, two 
 or more may be jointly indicted foi a crimi- 
 nal act which is of such nature that it can 
 be actually committed by but one person: 
 State V. Comstock, 46-265. 
 
 121. Liability for acts of confederates: 
 Where two persons engage in an unlawful 
 act, such as the resisting of an ofBcer, each 
 is accountable, not only for his own acts but 
 for the acts of the other done in the execu- 
 tion of the unlawful purpose, and the pre- 
 sumption of malice and the consequences of 
 the crime attach equally to both : State v. 
 Zeibart, 40-169. 
 
 122. If two persons engage in an assault 
 and aid each other therein, each is respon- 
 sible for whatever is done by the other, also 
 for the consequences resulting therefrom. If 
 they are acting together in making an unlaw- 
 ful assault, it is not necessary, in order to 
 render one of them responsible for the con- 
 sequences, that he should assist in striking or 
 that he knew or supposed that the other 
 would strike: State v. Maloy, 44^-104. 
 
 123. If it does not appear that one defend- 
 ant acted in combination or joint purpose 
 with others, then he should not be convicted 
 for a crime committed by the others, unless 
 the jury ai-e satisfied beyond a reasonable 
 doubt that he and not some one else com- 
 
 mitted the crime charged : State v. WestfaU, 
 49-328. 
 
 124. It is not necessary that the evidence 
 of an unlawful combination to commit a 
 crime should be direct and positive. It may 
 be shown from the circumstances connected 
 with the transaction: Miller v. Dayton, 57- 
 423 ; State v. Lucas, 57-501. 
 
 125. Instructions as to liability of persons 
 jointly participating in a murder committed 
 in the prosecution of a common unlawful de- 
 sign, held proper under the circumstances of 
 the case : State v. McGuire, 53-165. 
 
 Further as to liability for acts of confed- 
 erate in cases of homicide, see infra, g 184. 
 
 126. When two or more persons combine 
 to do an unlawful act, and declarations and 
 acts of each, made and done with reference 
 to the common purpose, implicate all alike, 
 each is guilty of the offense as a principal: 
 State V. Myers, 19-517. 
 
 As to conspiracy, in general, see infra, 
 II, 3, c. 
 
 Admission of persons conspiring together 
 to do an unlawful act may be received in 
 evidence as against each other: See infra, 
 §§ 1479-1484. 
 
 127. Acts Of agents: Where a person is 
 engaged in the business of selling intoxi- 
 cating liquors contrary to law, or keeping 
 them with intent to sell, he is criminally liar 
 ble for the unlawful acts of his servant or 
 agent done in the course of the business; but 
 where liquors are lawfully kept for sale with 
 intent to sell only for legal purposes, the 
 owner will not be criminally liable for an 
 illegal sale by his agent or clerk, made with- 
 out his knowledge or consent: State v. 
 Hayes, 67-37. 
 
 II. PaETICULAE classes of CEIME8. 
 
 1. Offenses agai/nst life or the person. 
 
 a. Homicide. 
 
 128. Human being; infant unborn: An 
 
 infant in the womb is not a human being 
 within the meaning of Code, § 3848, defining 
 murder; certainly not before it is quick: 
 Abrams v. Foshee, 3-274. 
 
 129. An infant does not become possessed 
 of independent life in such sense as to be 
 subject of homicide until independent circu- 
 
CRIMINAL LAW, II, 1, a. 
 
 415. 
 
 Homicide. 
 
 lation has been established: State v. Win- 
 throp, 43-519. 
 
 130. It is not necessary that an Indictment 
 for murder should allege that the deceased 
 was a human being: State v. Stanley, 33- 
 526, 531. 
 
 181. Malice aforethought: In murder of 
 either degree there must be malice afore- 
 thought, express or implied: State v. John- 
 son, 8-585 ; Folds v. State, 4 G. Gr., 500. 
 
 As to charging malice aforethought in the 
 indictment, see infra, g§ 145-148. 
 
 132. Malice aforethought is essential to the 
 crime of murder, but it is not necessary that 
 it should have existed for any considerable 
 length of time. It is sufficient if it existed 
 for any length of time before the commission 
 of the act: State v. Deeklotts, 19-447. 
 
 133. Malice inferred: Malice may, as at 
 common law, be Implied in case of homicide 
 from any. act unlawful and dangerous in its 
 nature, unjustifiably committed. Therefore, 
 held, that death caused in an unlawful at- 
 tempt to procure an abortion was murder in 
 the second degree : State v. Moore, 25-128. 
 
 134. Persons conspiring to do an unlawful 
 act which is a trespass only will be guilty of 
 murder only when death results in the prose- 
 cution of the design; but if the unlawful act 
 be a felony, or more than a trespass, death 
 resulting will be murder in all, although it 
 happen beside the original design : State v. 
 Shelledy, 8-477, 505. 
 
 Further as to presumptions as to intent, 
 see snpra, gg 30-33. 
 
 13.5. Use of deadly weapon : The malice 
 implied by the use of a deadly weapon is 
 malice aforethought, such as will sustain a 
 conviction for murder. Malice may be in- 
 ferred from the deliberate, violent use of a 
 deadly weapon : State v. Zeibart, 40-169. 
 
 13(5. When a man assaults another or uses 
 upon another a deadly weapon in such a man- 
 ner that the natural, ordinary and probable 
 restilt of the use of such weapon in such 
 manner would be to take life, the law pre- 
 sumes that such person so assaulting intended 
 to take life : State v. Sullivan, 51-143 ; State 
 V. Hockett. 70 . 
 
 137. But it is error to charge the jury that 
 malice is proved by the selection and use of a 
 deadly weapon in a deadly manner without 
 legal excuse. Such fact merely raises a pre- 
 
 sumption of malice subject to be rebutted: 
 State V. Townsend, 66-741. 
 
 138. An instrument may or may not be a 
 deadly weaj^on, depending upon the manner 
 in which it is used ; and in a particular case, 
 held, that a stick of wood might be found to 
 be a deadly weapon : State v. Brown, 67-389. 
 
 139. The fact that deceased was in a feeble 
 condition, so that a blow of less force caused 
 his death than would have been required to 
 take the life of a healthy man, even if that 
 fact is not known to the assailant, will not 
 constitute a defense : State v. Casiello, 62-40i. 
 
 140. Where it appeared that defendant 
 sought a meeting with deceased at which the 
 act was committed by the use of a revolver, 
 held, that his having used a revolver tended 
 to indicate that defendant sought the meeting 
 with the intent to take the life of deceased : 
 State V. Jones, 64^349. 
 
 As to assault with intent to murder, see 
 infra, §§ 249-254. 
 
 141. Ecsisting officer: In a prosecution 
 for murder in resisting an officer, the official 
 character of the officer need not be shown by 
 record evidence. It is sufficient if it is shown 
 that he was acting as officer de facto: State 
 V. Zeibart, 40-169. 
 
 142. Death from wound : If death ensues 
 from a wound given in malicp, not in its 
 nature mortal, but which being neglected or 
 mismanaged causes death, this will not ex- 
 cuse the person who gave it, and he will be 
 held to have caused the death, unless he can 
 make it clearly and certainly appear that the 
 maltreatment of the wound or the miscon- 
 duct of the person wounded, and not the 
 wound itself, was the sole cause of the death : 
 State V. Morphy, 83-270. 
 
 143. Malpriictico of physician: A person 
 who assumes to act as a physician in good 
 faith, with good motives and honest inten- 
 tions, however erroneous the course of treat- 
 ment he adopts, is not to be held criminally 
 liable if death results from such treatment : 
 State V. Sehulz, 55-628. 
 
 144. Iniiictnient: It is not necessary that 
 an indictment for murder should specifically 
 charge, as at common law, that the defend- 
 ant murdered the deceased. The use of other 
 words of the same import will be sufficient : 
 State V. a Mel, 23-272. 
 
 145. Although the indictment must charge 
 
416 
 
 CRIMINAL LAW, II, 1, a. 
 
 Homicide. 
 
 that the killing was done with malice afore- 
 thought, it is not essential that these identi- 
 cal words be used. It is sufficient if words 
 are used of the same import, or if it clearly 
 appears from the language used that malice 
 aforethought is charged, or can, without 
 doubt, be implied: State v. Thurman, 66- 
 693. 
 
 146. Therefore, whore the indictment 
 charged murder in the second degree, com- 
 mitted by the administration of drugs and 
 the use of an instrument for the purpose of 
 procuring an abortion, and charged these 
 acts as maliciously done, and with the specific 
 intent to produce an abortion, held, that 
 malice aforethought was sufficiently charged : 
 lUd. 
 
 147. In an indictment for murder under 
 our statute it is necessary to charge that the 
 homicide was done with malice aforethought : 
 State V. Newberry, 26-467. 
 
 148. Words used in the indictment in a 
 particular case, held to be equivalent to the 
 expression "malice aforethought:" State v. 
 NeeUy, 20-108. 
 
 149. In an indictment for murder it is suf- 
 ficient to aver that the wound was inflicted 
 on the person of deceased, that his death was 
 caused by it, and that the act was within 
 the jurisdiction of the court. The wound 
 need not be more particularly described: 
 Nash V. State, 2 G. Gr., 286. 
 
 150. Murder in lirst degree: The distinct- 
 ive peculiarity of murder in the first degree, 
 as defined by statute, is that it must be ac- 
 companied with the premeditated intention 
 to take life. The killing must be premedi- 
 tated. Wherever, then, in case of deliberate 
 homicide, there is a specific intention to take 
 life, the offense, if consummated, is murder 
 in the first degree. If there is not.a specific 
 intention to take life, it is murder in the 
 second degree : State v. Gillick, 7-287, 311. 
 
 151. An intention to take life may be pre- 
 sumed from the use of a deadly weapon in a 
 manner in which death would most likely 
 ensue, and proof of such a killing is primary 
 evidence that it is wilful, deliberate and 
 premeditated: Itiid. 
 
 152. Premeditation implies more than de- 
 liberation. It means to meditate and delib- 
 erate before concluding to do the deed ; not 
 only to wilfully take life, but to predetermine, 
 
 to contrive by previous meditation : State v. 
 Johnson, 8-535. 
 
 1 53. The distinctive peculiarity constituting 
 murder in the first degree is that it should be 
 accompanied with a premeditated determi- 
 nation to take life. The killing must be pre- 
 meditated, but no specific time is required 
 for premeditation or deliberation : Ibid. 
 
 154. The intent must have preceded the kill- 
 ing long enough to admit of premeditation and 
 deliberation. They need not have existed for 
 any particular length of time, if previously- 
 formed and continuing until the killing : State 
 V. Soper, 70 ; State v. Hockett, 70 . 
 
 155. It is not sufficient to charge murder 
 in the first degi-ee that the indictment alleges 
 the killing as wilful and premeditated only: 
 State V. Boyle, 28-522. 
 
 156. The indictment must change that the 
 killing was wilful, deliberate and premedi- 
 tated. The allegation that the assault was 
 so win not sufB.ce: State v. Knouse, 29-118; 
 State V. Thompson, 31-393. 
 
 157. So, an indictment charging that the 
 assault was wilful, deliberate and premedi- 
 tated, and that the blow from which de- 
 ceased died was wilful, deliberate and 
 premeditated, but hot charging that it waa 
 dealt for the purpose of killing, or that the 
 killing itself was wilful, does not charge 
 murder in the first degree : State v. MoCor- 
 miek, 27-402 ; State v. Watkins, 37-415. 
 
 158. The facts to bring the case within the 
 first degree of murder must be set out. Nam- 
 ing the offense in the introductory and closing 
 portions of the indictment as murder in the 
 first degree wfil not cure the defect. An in- 
 dictment which would be sufficient at com- 
 mon law for murder is not necessarily suf- 
 ficient to charge murder in the first degree 
 under the statute : Ibid. 
 
 159. To constitute the crime of murder in 
 the first degree, it is essential that the killing 
 be done with malice aforethought ; that it be 
 done wilfully, and also that it be done delib- 
 ately and premeditatedly ; but if it is charged 
 and proven that the wounds were inflicted 
 with specific intent to kill, and also that 
 they were inflicted deliberately and premed- 
 itatedly, it is not necessary that it be charged 
 and proven that the intent to kUl was delib- 
 erate and premeditated: State v. Shelton, 
 64-333. 
 
CRIMINAL LAW, II, 1, a.' 
 
 417 
 
 Homicide. 
 
 160. A wilful killing is simply an inten- 
 tional killing, and nothing more is necessary 
 to make the killing wi]f ul except the intended 
 result of the act. It is not necessary, there- 
 fore, to charge that the killing was wilful 
 where it is charged that the act causing the 
 homicide was done with the specific intent to 
 kill and murder: State v. Townsend, 66-741. 
 
 161. It is not necessary in chai-ging murder 
 in the first degree to use the precise language 
 of the statute. It is sufficient if the words 
 used are fully equivalent : Ibid. 
 
 163. An indictment charging an assault 
 with intent to kill, wilfully, etc., and that 
 defendant did thereby, wilfully, etc. , inflict a 
 mortal wound of which the deceased then 
 and there did die, sufficiently alleges murder 
 in the first degree although there is no aver- 
 ment that the killing was done wilfully, etc. . 
 State V. Stanley, 33-526. 
 
 163. Proof of design to kill at the time of 
 killing would show malice aforethought, but 
 would not show premeditation or delibera- 
 tion: Fonts V. State, 4 G. Gr., .'JOO. 
 
 164. The proof of killing, without more, 
 does not raise the presumption that such kill- 
 ing was wilful, deliberate and premeditated : 
 State V. McCormick, 27-402. 
 
 165. Whether, in case the killing is com- 
 mitted in the pei-petration or intent to perpe- 
 trate some of the felonies mentioned by the 
 statute, it should be charged as wilful, de- 
 liberate and premeditated, qucere: Ibid. 
 
 166. Where death is caused by the admin- 
 istration of poison, the crime will be murder 
 if the poison is unlawfully administered and 
 without a good intention. Such administra- 
 tion of poison constitutes the required delib- 
 eration, premeditation and intent to kill, and 
 it is immaterial whether or not there is a 
 specific intent to kill : State v. Wells, 61-629. 
 
 167. The expression " lying in wait" used 
 in the statute in defining murder in the first 
 degree means lying in ambush or conceal- 
 ment: State V. Cross, 68-180. 
 
 16S. The jury cannot find the defendant 
 guilty of murder in the first degree when the 
 indictment is only sufficient to charge de- 
 fendant with murder in the second degi-ee : 
 Fonts V. State, 4 G. Gr., 500. 
 
 169. It is prejudicial error to put a party 
 on trial for murder in the first degree under 
 an indictment charging only murder in the 
 Vol. 1 — 27 
 
 second degree, although the party is only 
 convicted of the lesser offense : State v. Boyle, 
 28-532; State v. Knouse, 39-118. 
 
 170. Where, on an indictment not suffi- 
 cient to charge murder in the first degree, 
 the defendant was found guilty in that de- 
 gree, and defendant on appeal asked that the 
 sentence be modified to one which would be 
 proper under the indictment for the second 
 degi-ee, the court so reduced the sentence: 
 State V, McCormick, 37-402. 
 
 171. But where, in a similar case, defend- 
 ant denied the sufficiency of the evidence to 
 establisli his guilt in any degree, and de- 
 manded a new trial, held, that he was entitled 
 thereto: State r. Watkins. 27-415. 
 
 That it is error to put a defendant on trial 
 for, a higher crime or degree of crime than 
 charged in the indictment, see infra, § 1257. 
 
 172. In a particular case, held, that the 
 evidence, although circumstantial, was suffi- 
 cient to sustain a conviction for murder in 
 the fii-st degree: State v. Stanley, 33-526. 
 
 In a trial for murder in the first degree, 
 the court should define all the degrees of 
 criminal homicide : See infra, %^ 1209-1217. 
 
 173. Murder in second degree: A specific 
 intention to kill is not essential to constitute 
 murder at common law, nor under our stat- 
 ute, to constitute murder in the second de- 
 gree: State V. Decklotts, 19-447; State v. 
 Morphy, 33-270 ; State v. Mewherter, 46-88. 
 
 1 74. An allegation that defendant caused 
 death by acts intended to pi-oduce miscarriage 
 when not necessary to save life, sufficiently 
 charges murder in the second degree: State 
 V. Leeper, 70 . 
 
 175. Evidence held not sufficient to support 
 a verdict of murder in the second degree: 
 State V. Havercamp, 54-350. 
 
 1 76. Degree of offense to be determined 
 by jury: Under the statute requiring the 
 jury to determine by their verdict the degree 
 of the offense on a trial for murder, held, that 
 a verdict of "guilty as charged in the indict- 
 ment "was fatally defective as not sufficiently 
 ascertaining the degree of the offense al- 
 though the indictment charged murder in 
 the first degree : State v. Moran, 7-236. 
 
 177. Where defendant was chai'ged with 
 committing murder in the perpeti'ation of 
 robbery and burglary, and the verdict of the 
 jui-y was " guilty as charged in the indict- 
 
418 
 
 CRIMINAL LAW, II, 1, a, b. 
 
 Homicide. — Maiming ; disfigurement. 
 
 ment," held, that this was a sufficient find- 
 ing of the degree of the crime and was a 
 conviction of murder in the first degree: 
 State V. Weese, 53-92. 
 
 178. The jury may, if they do not find tlie 
 defendant guilty of murder in either degree, 
 (^nvict him of manslaughter: Gordon f. 
 State, 3-410. 
 
 179. Tlie provision that the jury may de- 
 termine whether the punishment for murder 
 in the first degi-ee shall be capital is not un- 
 constitutional : State v. Hoakett, 70 . 
 
 And see f ui-ther as to conviction of included 
 (Time, infra, §§ 1338-1356. 
 
 180. In case of a plea of guilty, the record 
 should show that witnesses were examined 
 by the court and the degree of the crime thus 
 fixed: McCauley V. United States, Mor., 486. 
 
 181. Manslaughter : The common law defi- 
 nition of manslaughter has not been changed 
 by our statute : State v. Shelledy, 8-477 ; State 
 V. Moore, 25-138. Further as to definition, see 
 Statev. Abarr, 39-185; Statev. Hockett, 70 . 
 
 182. Homicide committed otherwise than 
 wilfully, deliberately, and with premedita- 
 tion, may be manslaughter or murder in the 
 second degree, depending upon absence or 
 presence of malice : State v. Spangler, 40-365. 
 
 183. A homicide committed in sudden 
 passion or heat of blood, without premedita- 
 tion and without maUce, is not murder in 
 the second degree, but manslaughter : Ibid. ; 
 State V. Decklotts, 19-447. 
 
 184. Great provocation may reduce a 
 homicide to manslaughter, but can never 
 render it justifiable or excusable : State v. 
 Vance, 17-188. 
 
 185. Mere words will not constitute suffi- 
 cient provocation to reduce a homicide to 
 manslaughter. Held, also, that the fact 
 that deceased had been criminally intimate 
 with defendant's wife's sister was not suffi- 
 cient : State v. Hockett, 70 . 
 
 186. Lawful and peaceful intentions will 
 not excuse an unlawful homicide by subse- 
 quent violence, though they might bear upon 
 the degree of the homicide. If the conviction 
 is for manslaughter the previous intention is 
 immaterial: Statev. Castello, 63-404. 
 
 187. The careless use of a dangerous and 
 deadly weapon, whereby a person is killed, 
 constitutes manslaughter, although no harm 
 is intended : State v. Hardie, 47-647. 
 
 188. Punishment for manslaughter in :i 
 particular case, where the facts indicated on 
 the part of defendant an entire recklessness 
 of the consequences in the unnecessary use of 
 a dangerous weapon in self-defense, lield not 
 excessive: Statev. Fitzsimmons, 63-656. 
 
 189. Where it appeared that defendant 
 pointed a loaded gun at deceased under cii- 
 cumstances not justifying killing, and de- 
 ceased seized it to prevent injury, and it was 
 discharged in the struggle without any pur- 
 pose on the part of defendant, held, tliat the 
 latter would be guilty of manslaughter, and j 
 the circumstances of the case would not 
 wholly excuse the homicide, but might he 
 regarded by the court in fixing punishment. 
 But lield that if the gun was pointed under 
 circumstances in which it might have been 
 lawfully discharged, defendant would Ix' 
 guilty of no offense : State v. Benham, 23-154. 
 
 190. Where one by his negligence con- 
 tributes to the death of another, he is guihv 
 of manslaughter, and it is no defense that 
 the death of deceased was caused by tlie 
 negligence of others as well as that of the de- 
 fendant : State V. Shelledy, 8-477, 507. 
 
 191. Manslaughter is not a degi-ee of nnn- 
 der, but a distinct offense, included, however, 
 in the crime of murder : State v. White, 45-335. 
 
 192. In a trial for murder, the jury should 
 be instructed as to what constitutes man- 
 slaughter, so that they may convict of the 
 lower offense if the higher is not established: 
 State V. demons, 51-374. 
 
 As to instructions relating to conviction for 
 included crimes, see infra, %% 1209-1317. 
 
 193. On a trial for manslaughter, it is not 
 necessary to define the crime of murder in 
 either degree, nor is it necessary to define any 
 included Crime where it appears that defend- 
 ant admits the killing but seeks to justify and 
 excuse it. But if there is any evidence sus- ■ 
 taining the claim that the blow was acciden- 
 tal, the law in relation to accidental killing 
 should be given to the jury : State v. Hart- 
 zell, 58-530. 
 
 As to assault with intent to cominit niani 
 slaughter, see infra, § 355. 
 
 b. Maiming; disfigurement. 
 
 194. Intent: WhUe a specific intent to disi 
 figure IS an essential element of the crime, 
 
CRIMINAL LAW, II, 1, c. 
 
 419 
 
 Rape, 
 
 yet such intent may be inferred or pre- 
 sumed if the act is done deliberately, and the 
 disfigurement is reasonably to be appre- 
 hended as the natural and probable conse- 
 
 qvience of the act : State v. Jones, 70 . « 
 
 195. Assault with intent to disfigure: 
 Where an assault is made with intention of 
 committing a bodily injury which will consti- 
 tute a disfigurement, no other intention to 
 disfigure need be proven : State v. Clark, 69- 
 196. 
 
 c. Rape. 
 
 19G. What constitutes: The force neces- 
 sary on the one hand, and the resistance re- 
 quired on the other, to constitute the crime, 
 depend upon the relative mental and phys- 
 ical strength of the parties and the circum- 
 stances surrounding them: State v. Tarr, 
 28-397. 
 
 197. Where a female was imbecile, and 
 the prisoner, knowing such fact (which 
 'Slight be inferred from his having had some 
 
 conversation with her), used some force, and 
 there was nothing to indicate consent on her 
 part, held, that the act would be considered 
 to have been against her will, and that in 
 such case actual opposition or dissent need 
 not be shown : Ibid. 
 
 198. It seems that a defendant might, 
 under the statutory definition, be convicted 
 of the crime of rape, committed upon a 
 woman so destitute of mind that she was in- 
 capable of consent, without proof of any re- 
 sistance on her pait: State v. Atherton, 50- 
 189. 
 
 199. By statute, the criminal knowledge 
 and abuse of. a female child under the age 
 of ten years is rape, and an assault with in- 
 tent to commit such crime is an assault with 
 intent to commit rape. The fact that de- 
 fendant does not know that the child is under 
 ten years of age will be immaterial : State 
 V. Newton, 44-45. 
 
 200. Where it does not appear that active 
 resistance was made, the age of prosecutrix 
 is important to be considered. If, though 
 over ten years of age (the age of consent 
 fixed by statute), she is still very young, 
 with mind not enlightened upon the nature 
 of the act, this consideration should lead 
 the jury to demand a less clear opposition 
 than if she were older and more intelligent. I 
 
 Consent involves submission^ but submission 
 does not necessarily involve consent, and 
 while in most cases such submission of the 
 adult female would imply consent, yet the 
 mere submission of a young and uninformed 
 female in the hands of a strong man cannot 
 be taken to show consent : State v. Cross, 
 13-66. 
 
 201. While a female over ten years of age 
 is presumed capable of giving consent, yet 
 the fact that a female over that age lacked 
 puberal development may be considered in 
 support of her claim that she did not under- 
 stand the nature of the intended act : State 
 V. McCaffrey, 63-479. 
 
 202. In a prosecution for rape committed 
 upon a girl eleven years old, held, that though 
 it appeared that she had allowed defendant 
 improper liberties, yet that the evidence that 
 she resisted before penetration was effected 
 was sufficient to support a conviction : Ibid. 
 
 203. Two or more may be jointly indicted 
 for the crime, one being the principal and 
 the others accessories : State v. Comstock, 46- 
 365. 
 
 204. The crime of rape necessarily includas 
 both a simple assault, and an assault with in- 
 tent to commit the crime : State v. Vinsant. 
 49-341 ; State v. Peters, 56-263. 
 
 205. On a trial for rape, defendant may be 
 convicted of an assault with intent to com- 
 mit the crime, and even though consent is 
 shown at the time of the commission of the 
 act, it may be shown to have been absent at 
 the time of the commission of the assault: 
 State V. Cross, 12-66; State v. Atherton, 50- 
 189. 
 
 As to assault with intent to commit rape, 
 see infra, §§ 250-367. 
 
 206. Indictment: The sex of the pereon 
 injured in a particular case held to sufficiently 
 appear from the language of the indictment, 
 although not specifically alleged: State r. 
 Hussey, 7-409. 
 
 207. The indictment in a particular case 
 held to sufficiently indicate the person rav- 
 ished: State V. Pennell, 56-39. 
 
 208. Evidence: It is not necessary to estab- 
 lish the non-consent or force, by proof of 
 outcries or of a struggle, nor need actual 
 penetration be shown by the testimony of the 
 prosecutrix herself. But the jury may say 
 whether, from all the circumstances, the 
 
420 
 
 CRIMINAL LAW, II, 1, c. 
 
 Rape. 
 
 requisite facts are shown : State v. Tarr, 38- 
 397. 
 
 209. The absence of any marks of violence, 
 or of outcries, etc. , at the time, may be con- 
 sidered as against the evidence of prosecu- 
 trix: State V. Tomlinson, 11-401. 
 
 210. Absence of such outci-ies and com- 
 plaints tends strongly to rebut the hypothesis 
 of guilt, but is not conclusive, and the age, 
 etc., of prosecutrix is to be considered : State 
 V. Cross, 12-66. 
 
 211. The better rule is to admonish the 
 jury as to the difficulty of disproving the 
 charge, and call their attention to the fact 
 whether outcry was made at the time : State 
 V. Hagerman, 47-151. 
 
 212. The fact of prosecutrix making com- 
 plaint is proper evidence, but the particulars 
 of such complaint are not : State v. Richards, 
 33-420. 
 
 213. But the evidence as to complaints 
 need not be limited necessarily to the fact of 
 complaint being made. It may extend to 
 showing what the person made complaint of : 
 State V. Mitchell, 68-116. 
 
 214. The particular facts stated by the 
 prosecutrix are not admissible in evidence 
 except when elicited on cross-examination, 
 or by way of confirming her testimony after 
 an attempt to impeach it: State v. Clark, 
 69-294. / 
 
 215. Therefore, held, that a letter written 
 by prosecutrix, relating the circumstances 
 of the alleged crime, was not admissible: 
 Ibid. 
 
 216. Evidence that bruises were found 
 upon prosecutrix two and one-half or three 
 weeks after the alleged injury held pi'operly 
 admitted. The length of time that had elapsed 
 would be for the jury as affecting the credi- 
 bility of the evidence, but would not -ren- 
 der it incompetent: State v. McLaughlin, 
 44r-82. 
 
 217. Proof of another crime of the same 
 character committed at a different time upon 
 or against another pei-son and having no con- 
 nection with the crime charged is not admissi- 
 ble. So held in a prosecution for assault with 
 intent to commit rape as to evidence of simi- 
 lar assaults at previous times upon other 
 persons; but held, that proof of previous 
 assaults on prosecutrix was admissible to show 
 intent : State v. Walters, 45-389. 
 
 218. In a prosecution for rape, held, that 
 statements of prosecutrix made on the same 
 day on which the crime was charged to have 
 been committed, that she had had criminal 
 intercourse with defendant and would have 
 it again, v^ere admissible in evidence as tend- 
 ing to show the character of prosecutrix and 
 her feelings toward defendant : State v. Cook, 
 65-560. 
 
 219. Evidence considered, and held in- 
 sufficient to justify conviction for the crime: 
 State V. Tomlinson, 11^01. 
 
 220. Corroboration: Under the statute 
 (Code, § 4560) requiring coiToboration of the 
 testimony of prosecutrix in such cases in or- 
 der to connect defendant vrith the crime 
 charged, held, that the fact that the crime 
 has been committed by some one may be 
 established by the testimony of the injured 
 party alone : but that to ascertain the guilty 
 party it is necessary that the testimony of 
 the person injured be coiToborated by other 
 evidence tending to connect defendant with 
 the crime, and such as, when considered with 
 the testimony of the person injured, shall 
 establish defendant's guilt beyond a reason- 
 able doubt :' State v. McLaughlin, 44-82. 
 
 221. Where prosecutrix testified to a rape 
 committed by defendant, and that bruises 
 afterward found upon her person were re- 
 ceived at tliat time, and there was evidence 
 that defendant admitted the criminal con- 
 nection, held, that the court properly left to 
 the jury to determine whether the injuries 
 were received at the time of the alleged 
 outrage and whether they, in connection 
 with defendant's admissions, were sufficient 
 to connect him with the offense : Ibid. 
 
 222. Evidence that prosecutrix was bruised, 
 etc., and made complaint, would not tend to 
 connect defendant with the commission of 
 the offense, and therefore should not be con- 
 sidered as tending to corroborate the testi- 
 mony of prosecutrix: State v. StoweU, 60;- 
 535. 
 
 223. The con-oboration in particular cases 
 held sufficient: State v. Comstock, 46-265; 
 State V. Mitchell, 68-116. 
 
 Further as to corroboration, see infra, 
 §§ 589-595- 
 
 224. Included crimes: Assault and battery 
 is not necessarily included in the crime of 
 rape : State v. McDevitt, 69-549. 
 
CRIMINAL LAW, II, ], d, e. 
 
 431 
 
 Robbery .— Assault. 
 
 d. RoUbery. 
 
 225. To constitute robbery, there must be 
 animus furandi; compelling the payment of 
 money which is due, by threats of violence, 
 is not robbery : State v.JSollyway, 41-200. 
 
 22G. The means used to put in fear need 
 not be such as would put in fear one used to 
 the ways of the world : State v. Carr, 43-il8. 
 
 227. A sudden snatching from the hand of 
 another is sufSoient force and violence to 
 constitute I'obbery : Ibid. 
 
 228. The crime of robbery includes all the 
 elements of larceny from the person, defined 
 in Code, g 3905, with the addition of the ele- 
 ment of violence or putting in fear, and the 
 fact that the evidence shows the crime to be 
 robbery will not render erroneous a convic- 
 tion under that section : State v. Graff, 66-482. 
 
 229. Indictment: An indictment for rob- 
 bery need not in express terms charge an as- 
 sault; if it charge putting in bodily fear and 
 danger of life, it will be sufficient in this 
 respect, the charge of an assault being thereby 
 necessarily imfplied : State v. Brewer, 53-735. 
 
 230. An iirdictment stating that defendant, 
 with force, etc., and by putting in fear, etc., 
 ' ' did take, steal and carry away from the 
 said," etc., is not sufficient to charge this of- 
 fense. It should chai-ge a taking, etc. , from 
 the person: State v. Leighton, 56-595. 
 
 231. An indictment charging that defend- 
 ant made an assault upon t'he person named, 
 ' ' and with force and viali&ise unlawfully 
 and feloniously did steal, ta'fee and carry 
 away from, the person of" said person, etc., 
 held sufficient to charge robbery: State v. 
 Kegan, 62-106. 
 
 232. Evidence that a person was robbed of 
 a certain number of dollars in gold pieces of 
 specified denominations and also of a certain 
 number of dollars in silver coin, held suffi- 
 cient to show that the person was robbed of 
 gold and silver coins of denominations men- 
 tioned in the indictment: State v. Helvin, 
 65-289. 
 
 e. Assault; assault and lattenj; as- 
 sault with intent to commit other 
 crimes; malicious threats; carry- 
 ing concealed weapons. 
 
 233. Assault; what constitutes: To con- 
 stitute an assault, it is not necessary that de- 
 
 fendant should have been in such position as 
 to inflict injury on the person assaulted with 
 the weapon used, provided it appears that he 
 intended and endeavored to inflict such in- 
 jury and had means and ability to do so, and 
 was only prevented from doing so by the in- 
 terference of others: State v. Malcolm, 8- 
 413. 
 
 234. It is an assault to present an unloaded 
 gTin or pistol at another in a manner calcu- 
 lated to terrify the person aimed at, if the 
 latter does not know or has no reason to be- 
 lieve that the weapon is not loaded : State v. 
 Shepard, 10-126. 
 
 235. An indictment charging that defend- 
 ant did make an assault with a certain dan- 
 gerous weapon, to wit, a gun with which he 
 was armed, etc., but not alleging that the 
 gun was loaded, nor the manner of using it, 
 nor that it was pointed or discharged, held 
 sufficient to charge an assault : Qid. 
 
 23<>. An assault may be committed with- 
 out doing any personal injury : State v. My- 
 ers. 19-517. 
 
 237. Assault and battery: The statute 
 merely prescribes the punishment for the 
 offenses of assault, and assault and battery, 
 and leaves them to be defined by the common 
 law : State v. Twogdod, 7-253. 
 
 238. J nstiflcation : Angry words ai-e no 
 justification for an assault and battery. Nei- 
 ther is it unlavs'ful for a party to forbid an 
 angry person coming upon the former's prem- 
 ises: Thompson v. Mumma, 21-65. 
 
 239. The fact that an officer has levied 
 upon property exempt from seizure is no jus- 
 tification for an assault: Cokely v. State, 4- 
 ill. 
 
 240. In a prosecution for an assault, it is 
 not proper to ask the prosecuting witness 
 whether he had not at a previous time struck 
 the defendant: State v. Montgomery, 65-483. 
 
 241 . How ciiarged : Information charging 
 defendant with inhumanly beating his own 
 child sufficiently charges the offense of as- 
 sault and battery ; but the name of the per- 
 son on whom the offense was committed 
 should be given : State v. Bitman, 13-485. 
 
 242. Necessarily Included in hig-her 
 crime: An indictment charging an assault 
 and also a battery does not charge two of- 
 fenses. Every battery necessarily includes 
 an assault : State v. Twogood, 7-252. 
 
4:22 
 
 CRIMINAL LAW, II, 1, e. 
 
 Assault. 
 
 243. The offense of maiming and disfigur- 
 ing necessarily includes an assault and bat- 
 tery : Benham v. State, 1-542. 
 
 244. An assault with intent to do great 
 bodily injury necessarily includes a simple 
 assault :.Orfon v. State, 4 G. Gr., 140. 
 
 245. While an assault with intent to mur- 
 der may not in all oases include an assault 
 and battery, yet under an indictment charg- 
 ing the former offense, in a particular case, 
 held, that sufficient was charged to warrant 
 a conviction of the latter: State ?;. Graham, 
 51-72. 
 
 24G. Assault and battery is not necessarily 
 moluded in the crime of rape: State v. 
 McDevitt, 69-549. 
 
 247. An assault with intent to commit 
 murder necessarily includes a simple assault : 
 State i\ Jarvis, 21-44 ; State v. Shepard, 10- 
 126. 
 
 As to convicting for crime necessarily in- 
 cluded in crime charged, see infra, §§ 1238- 
 1356. 
 
 248. Assault with intent: In an indict- 
 ment for assault with intent to commit an 
 offense, it is not necessary to make all the 
 averments required in an indictment for 
 the offense itself : State v. Newberry, 26-467. 
 
 24)). Ass.iult with intent to commit mur- 
 der: Therefore, in charging an assault with 
 intent to murder, it is not necessary to charge 
 that the assault was made with malice afore- 
 thought: Ibid. 
 
 250. In a particular case, held, that the 
 evidence was sufficient to show that the as- 
 sault was made with premeditation and in- 
 tent to kill : State v. Broum, 67-289. 
 
 251. Assault with intent to commit murder 
 does not admit of different degTees, the in- 
 tent being the gist of the offense : State v. 
 Jarvis, 21-44. 
 
 252. The facts in a prosecution for assault 
 with intent to commit murder, held sufficient 
 to show that the punishment inffioted was 
 excessive and sentence was modified accord- 
 ingly : State v. Doering, 48-650. 
 
 253. Evidence in a particular case held 
 sufficient to show defendant guilty as acces- 
 sory to an assault with intent to murder: 
 State V. Mower, 68-61. 
 
 254. What offenses included: An assault 
 with intent to commit manslaughter is in- 
 cluded within an assault with intent to com- 
 
 mit mui-der, and a party may be convicted 
 of the former under an indictment charging 
 the latter : State v. White, 45-325 (overruling 
 S. C, 41-316); State v. Scheie, 53-608; Stati 
 V. Connor, 59-357. 
 
 255. Assault with intent to commit man- 
 slaughter is punishable under the statutory 
 provision for assault with intent to commit a 
 felony : State v. White, 45-325. 
 
 256. Assault with intent to commit rape: 
 It must appear that the intent of defendant 
 was to gi-atify his passions, notwithstanding 
 any possible resistance prosecutrix should 
 make : State v. Cross, 12-66 ; State v. Hager- 
 man, 47-151. 
 
 257. The intent to commit the crime of 
 rape necessarily includes an attempt to over- 
 come the resistance of the woman and ac- 
 complish the connection by foi'ce; and to 
 establish assault with intent to commit rape, 
 the evidence must show that the assault was 
 made with the intent to use whatever degree 
 of force might be necessary to overcome the 
 resistance and accomplish the object: State 
 V. Canada, 68-397. 
 
 258. Assault with intent to commit rape 
 does not necessarily include assault and bat- 
 tery : State v. McDevitt, 69-549. 
 
 259. Defendant may be found guilty of an 
 assault with intent to commit, etc., although 
 at the time of accomplishing the act there 
 was such consent as to deprive the act of the 
 character of rape: State v. Cross, 12-66; 
 State V. Atherton, 50-189. 
 
 260. Assault with intent to carnally know 
 a child under ten years, etc. (Code, § 3861), is 
 an assault with intent to commit rape, and in 
 such case it is not necessary to prove that de- 
 fendant knew the fact as to the age of the 
 child. Proof of that fact itself is sufficient: 
 State V. Newton, 44-45. And upon a similar 
 point, see State v. Buhl, 8-447. 
 
 261. In a prosecution for this crime, the 
 conduct of the parties towards each other, 
 both before and after the alleged offense, may 
 be shown in evidence : Malleit v. Beale, 66-70. 
 
 262. Facts in a particular case, held suf- 
 ficient to show the intent with which the 
 assault was committed; State v. Mclntire, 
 
 66-339. 
 
 263. Evidence of intoxication isadmissibla 
 for the purpose of showing absence of intent 
 in such a case: State v. Donovan, 61-369. 
 
CRIMINAL LAW, II, 1, e; 2, a. 
 
 42;j 
 
 Assault. — Burglaiy, 
 
 2($4. The jury should be told that if they 
 find from the evidence that defendant was 
 t o drunk as to be incapable of an intent to 
 rtuish the pi'osecutrix, they should find him 
 not guilty : Ibid. 
 
 265. There is no legal pr^esumption that any 
 (iffense or any specific result is intended by a 
 man chasing a woman: Ibid. 
 
 268. Under the facts of a particular case, a 
 new trial was granted for the insufficiency 
 and unsatisfactory nature of corroborating 
 testimony, and for want of proper instruc- 
 tions as to the effect of a jest as indicating 
 criminal intent : State v. Warner, 35-200. 
 
 267. AVhether the provisions of Code, 
 ^ 4560, requiring corroboration of evidence of 
 the injured party in a prosecution for rape are 
 applicable in an assault with intent to com- 
 mit rape, quaere : State v. Mclntire, 66-339. 
 
 As to what is sufficient corroboration, see 
 supra, g§ 220-223 ; and infra, %% 589-595. 
 
 268. Assault with intent to do great 
 hoilily injury: This crime is sufficiently 
 charged in an information which accuses de- 
 fendant of an assault and battery, alleging 
 that defendant wilfully and maliciously 
 struck and beat the person injured with in- 
 tent of doing him great bodily injury : State 
 r. Carpenter, 23-506. 
 
 269. An indictment charging an assault 
 and battery with intent to inflict great bodily 
 injury does not charge more than one offense. 
 The battery is simply an aggravation : Cokely 
 V. State. 4-477. 
 
 270. When the felonious intent is shown, 
 that which would be an assault if unaccom- 
 ]ianied with such intent will be such when 
 thus accompanied: State v. Malcolm, 8-413, 
 
 271. Under an indictment for this offense, 
 defendant may be convicted of a simple as- 
 sault: Orton V. State, 4 G. Gr., 140. 
 
 272. A great bodily injury is an injury to 
 the person of a more grave and serious char- 
 acter than an ordinary battery, but it cannot 
 be definitely defined. The question whether 
 the injury inflicted in a particular case con- 
 stitutes a great bodily injury is for the jury : 
 State V. Qillett, 56-459. 
 
 273. Where a person makes an assault on 
 another and inflicts upon him an injury of a 
 more grave and serious character than an 
 ordinary battery, the presumption is war- 
 ranted that he intended to inflict a great 
 
 bodily injury, if there is no evidence tending 
 
 to show that he intended a less injm-y : Ibid. 
 
 Assault with intent to disfigure, see supra. 
 
 § 195- 
 
 274. Malicions threats: Extortion and 
 pecuniary advantage are not necessary ele- 
 ments of the crime of maliciously threaten- 
 ing, etc. , as defined by statute. An indictment 
 charging defendant with maliciously threat- 
 ening, etc., with intent " to compel the per- 
 son, etc., to do an act against his will," is 
 sufficient: State v. Voung, 26-323. 
 
 27.5. An indictment charging defendant 
 with verbally threatening to kill and murder 
 two certain persons with intent, etc., hehl 
 sufficient without setting out the threatening 
 words used ; also, held, that a threat to kill 
 two persons constituted but one offense : State 
 V. aUally, 48-501. 
 
 2 76. In the absence of a felonious intent, 
 it is not robbery to compel, by means of 
 threats of personal violence, the payment of 
 money ; but such an act is an offense under 
 the statutory provision as to malicious 
 threats : State v. Holly way, 41-200. 
 
 277. Carrying coJicealeil weapons: The 
 intent or purpose with which the weapon is 
 carried is not an element of the statutorjr 
 offense (under Code, g 3879), nor is it required 
 that it be carried with the defendant's knowl- 
 edge, or wilfully, that is, with set purpose. 
 The obvious purpose of the statute is to for- 
 bid the carrying of weapons on the person 
 with the knowledge of the accused that the 
 weapon was carried upon his person, and 
 that the thing carried was a weapon. If the 
 weapon was carried through restraint, or ig- 
 norance, or for any innocent or lawful pur- 
 pose, such fact may be shown by the defense ; 
 it need not be negatived in the indictment ; 
 State V. Williams, 70 . 
 
 2. Offenses ugainat property. 
 
 a. Burglary and otlier hreaMngs and 
 enterings. 
 
 278. What constitutes breaking: The 
 pushing open of a closed door is a suflicient 
 breaking within the meaning of the law t« 
 constitute burglary : State v. Reid, 30-41.3. 
 
 279. Entry witli intent: The crime of 
 entering a dwelling-house in the night-time 
 
424: 
 
 CRIMINAL LAW, II, 2, a. 
 
 Burglary and other breakings and enterings. 
 
 with intent to commit a public offense, as de- 
 fined by statute, is included in the crime of 
 burglary, so that under an indictment for the 
 latter, defendant may be convicted of the 
 former: State v. Maxwell, 4^-308. 
 
 280. Indictment; description of pi-op- 
 erty : The offense is against the owner of the 
 building, and his name, and not that of the 
 owner of goods, etc., therein, which the ac- 
 cused intended to steal, should be given in 
 the indictment. If the name of such owner 
 is not known, it should be so stated: State i: 
 Morrissey, 23-158. 
 
 281. An indictment charging burglary in 
 breaking and entering a house described as 
 the property of a naan whose wife owned 
 the legal title, the property being occupied 
 as a homestead, lield proper, the possession 
 being in the person named, as head of the 
 family : State v. Short, 54-392. 
 
 282. Where the indictment charged that 
 the building broken and entered was the 
 property of H., held, that proof that H. was 
 in possession as tenant was sufficient proof 
 of ownership : State v. Golden, 49-48. 
 
 283. Burglary is an offense against the 
 possession. At common law the ownership 
 was required to be laid in the tenant or per- 
 son in possession, and this rule is not changed 
 by any provision of statute, although under 
 Code, § 4303, it would probably be immaterial 
 whether the possession was laid in the land 
 owner or the tenant if the offense was in 
 other respects sufficiently described : State v. 
 Rivers, 68-611. 
 
 284. In a prosecution for burglary, it is 
 material only to prove that the person named 
 in the indictment as owner was in occupancy 
 and possession of the building: State v. 
 Teeter, 69-717. 
 
 285. It is not necessary that the indictment 
 for burglary should allege that some one was 
 in the house at the time of the commission 
 of the crime: State v. Reid, 20-413. 
 
 286. Time: In an indictment for burglary, 
 held, that an allegation of breaking and 
 entering on a certain day, in the night-time 
 of said day, constituted a sufficient allegation 
 that the offense was committed in the night- 
 time: State V. Ruby, 61-86. 
 
 287. Intent: An indictment charging a 
 breaking and entering with intent to commit 
 larceny is sufficient without averring that the 
 
 intention was to steal property of a greater 
 value than twenty dollars: State v. Jones, 
 10-206. 
 
 388. The fact that an indictment for burg- 
 lai-y does not charge the breaking and entry 
 as "burglarious" does not render the indict- 
 ment bad. The breaking and entering with 
 the required intent constitute the crime: 
 State V. Short, 54-892. 
 
 289. While an indictment under § 3894 
 of the Code defining the crime of breaking 
 and entering a building in which goods are 
 kept for use, sale or deposit, with intent, etc., 
 may be similar to an indictment for burglary, 
 yet the use of the words mentioned by the 
 statute as peculiarly descriptive of the 
 former crime will be sufficient to indicate 
 that that crime and not the crime of burg- 
 lary is intended to be charged: State v. 
 Pranks, 64-39. 
 
 290. Burglary and larceny, the latter com- 
 mitted in connection with the former, aa-e 
 distinct offenses and not parts of a compound 
 offense: State v. Ridley, 48-370. 
 
 An indictment charging the breaking and 
 entering and also the commission of a spe- 
 cific crime, such as larceny, does not charge 
 two crimes in such sense as to be bad for 
 duplicity: See infra, g§ 982-986. 
 
 291. Evidence: Proof of a larceny com- 
 mitted after the breaking and entering is ad- 
 missible as showing the intent with which 
 the breaking and entry were committed: 
 State V. Golden, 49-48. 
 
 292. The fact of the breaking and entry 
 may be considered in determining the intent 
 with which the breaking and entry were com- 
 mitted, in connection with the other circum- 
 stances of the case : State v. Teeter, 69-717. 
 
 293. The possession of goods recently 
 stolen in connection with the commission of 
 a burglary is not of itself sufficient evidence 
 upon which to find defendant guilty of the 
 burglary : State v. Shaffer, 59-390 ; State v. 
 niton, 63-117. 
 
 294. But such possession, in connection 
 with other evidence of guilty conduct, such 
 as the possession of burglarious tools, etc., is 
 prima facie evidence of guilt, sufficient to 
 convict : State v. Reid, 20-413. 
 
 295. The mere possession of goods stolen 
 from the building in which the burglary is 
 alleged to have been committed does not 
 
CRIMINAL LAW, II, 3, b, o. 
 
 Arson and statutory burnings. — Larceny. 
 
 have the same tendency to connect the per- 
 son found in the possession of such goods 
 •with the burglary, as it does with the larceny, 
 and is not prima facie evidence of guilt 
 of the burglary ; but when it is shown that 
 the two offenses were committed at the same 
 time, and by the same person, the fact of the 
 possession of goods stolen at that time from 
 the building has necessarily the same tend- 
 ency to prove the person in possession 
 thereof guilty of burglary as of the larceny : 
 State V. Rivers, 68-611. 
 
 296. Possession of burglarious tools within 
 a few hours after the commission of the 
 crime of burglary may be proven as tending 
 to connect defendant with the commission of 
 the crime, and such evidence is admissible 
 for that purpose although it shows in itself a 
 distinct substantive offense : State v. Franks, 
 64^39. 
 
 297. The intent being made a necessary 
 element in the crime of burglary, intoxica- 
 tion may be weighed by the jury in consider- 
 ing whether such intent existed : State v. Bell, 
 39-316. 
 
 298. One who receives the stolen goods 
 from a, burglar is not an accomplice in the 
 crime of burglary: State v. ffayden, 45-11. 
 
 b. Arson and statutory hurnlngs. 
 
 299. Indiclment: An averment that de- 
 fendant set fire to cdttain material in the 
 store of a person named is not sustained by 
 proof that he set fire to such material in a 
 building owned by such person but in a room 
 occilpied by a tenant as a store : State v. Ten- 
 nery, 9-436. 
 
 300. But in such case an averment that 
 the fire was applied in a room within the 
 store building of such person, held proper: 
 Ihid. 
 
 301. An indictment charging defendant 
 with burning a certain " building, etc., called 
 a barn," held sufficient, though in fact the 
 building was not a barn but only a shed : 
 State V. Smith, 38-565. 
 
 302. Attempt: Under a statutory provision 
 for the punishment of any person setting fire 
 to any material with intent to cause any 
 building, etc., to be burnt, held, that one who 
 was charged with setting a lighted candle in 
 hay and other combustible material with in- 
 
 tent to burn was sufficiently charged with 
 such crime although neither the barn nor the 
 material was ignited nor burned r State v. 
 Johnson, 19-230. 
 
 Setting out fire: As to liability in dam- 
 ages for setting out fire by which the property 
 of another is injured or destroyed, see NeGt- 
 LIGENCE, §.^ 42-49. 
 
 c. Za 
 
 '■ceny. 
 
 303. Felonious taking: To constitue lar- 
 ceny, the property must have been feloni- 
 ously taken from the owner without his con- 
 sent, or obtained by false representations, 
 etc. If given by the owner to the defendant 
 by virtue bf his employment as agent, 
 servant, or otherwise, and afterwards con- 
 verted, the offense is embezzlement: Ennis 
 V. State, 3 G. Gr., 67. 
 
 304. A felonious taking is a taking without 
 color of right or excuse for the act, and it 
 may safely be said that there was no color 
 of right or excuse if the defendant knew that 
 he had no authority to take the property, and 
 with this knowledge he knowingly carried it 
 away and converted it to his own use : State 
 V. Rivers, 60-381. 
 
 305. A taking from the pei-son is not neces- 
 sary to constitute larceny (a special penalty 
 therefor being provided in Code, § 3905), and 
 picking \vp money dropped by another, with 
 unlawful intent, and converting the same to 
 one's own use without the knowledge of the 
 owner, is sufficient to constitute the offense : 
 State V. Pratt, 20-267. 
 
 306. If the original possession of the prop- 
 erty was innocent, a subsequent conversion 
 will not constitute larceny: State v. Wood, 
 46-116. 
 
 307. Where an auctioneer employed to sell 
 impounded animals sold one of them as his 
 own, and it was taken away by the pur- 
 chaser, held, that there was sufficient taking 
 to constitute larceny on the part of the per- 
 son selling : State v. Hunt, 45-673. 
 
 308. A pledgee has svich special property 
 in the thing pledged tliat a taking from him 
 by the pledgor may be larceny : Bruley v. 
 Rose, 57-651. 
 
 309. Intent: Taking property into posses- 
 sion with intent to appropriate it is larcenv, 
 although the property is afterward let go. 
 
420 
 
 CRIMINAL LAW, II, 3, c. 
 
 Larcenv. 
 
 the latter fact being proper to be considered 
 by the jury in determining the intent with 
 which possession was taken : Oeorgia v. Kep- 
 ford, 45-48. 
 
 310. To warrant a conviction for larceny, 
 the prosecution should show that possession 
 was taken with the intent then existing in 
 the mind of defendant to steal the property. 
 Such intent, however, may be shown by sub- 
 sequent acts and conduct: State v. Wood, 
 46-116. 
 
 311. If one sell or dispose of the property 
 of another under the well founded, though 
 erroneous, belief that he is authorized so to 
 do, he is not guilty of lai'ceny : State v. Bar- 
 rackmore, 47-684. 
 
 312. The act of an employee in giving 
 away the employer's property, although with- 
 out authority, may not necessarily consti- 
 tute larceny, if the circumstances are such 
 !is to negative a criminal intent : Mielenz v. 
 Qua>idorf, 68-726. 
 
 313. In a prosecution for larceny of two 
 colts, held, that evidence that the sale of the 
 tolts by a former owner to the prosecutor 
 was a mere sham, and that they had after- 
 ward been sold by such former owner to de- 
 fendant, should have been admitted : State 
 V. Waltz, 53-227. 
 
 iil4. A pretended claim that money taken 
 is due for services will not constitute a de- 
 fense if it appears from the circumstances 
 that such claim was a sham and that defend- 
 ant intended to fraudulently appropriate the 
 money : State v. Bond, 8-540. 
 
 315. Lost property : To render the finding 
 or conversion of lost property larceny, it 
 must be shown that the person so finding 
 and converting knew the owner of the prop- 
 erty : State v. Taylor, 25-373. 
 
 316. The crime of laioeny as to lost prop- 
 erty consists in the original taking and not in 
 a subsequent lack of diligence in attempting 
 to find the owner, nor in a subsequent conver- 
 sion. The omission to take the steps required 
 by statute for the finding of the owner will 
 not render the party guilty of larceny, if the 
 owner was not known at the time of the 
 taking : State v. Dean, 49-73. 
 
 317. If one picks up a pocket-book which 
 has been dropped from the pocket of the 
 owner, and with an unlawful intent converts 
 it to his own use without the knowledge of 
 
 the owner, he is guilty of larceny: State v. 
 Pratt, 20-267. 
 
 318. Ownership: In an indictment for 
 larceny of chattels in which a person has a 
 special property or which he holds in trust, 
 the ownership may be laid in either the gen- 
 eral owner or the one having the special 
 property : State v. Mullen, 30-203. 
 
 319. The ownership of property need not 
 be shown to have been in the party from 
 wliom it was taken, if it was in his posses- 
 sion : State v. Stanley, 48-221. 
 
 320. In the case of larceny of property in 
 the possession of a receiver, the indictment 
 may properly lay the ownership of the prop- 
 erty in the receiver : State i\ Rivers, 60-381. 
 
 32L From possession of officer: Larceny 
 from a receiver in possession of property 
 is not from the possession of an oiBcer, in 
 such sense as to constitute that specific 
 crime as defined by statute : Ibid. 
 
 332. As intoxicating liquors seized by an 
 ofiiicer on a warrant for their forfeiture ai-e 
 not subject to replevin, it would be a crime 
 under the statute providing for the taking of 
 goods from an officer to take possession of 
 them under such a writ : State v. Harris, 38- 
 242. 
 
 323. What property subject to larceny: 
 A raccoon is not subject to larceny: T^ar- 
 ren v. State, 1 G. Gr., 106. 
 
 324. Intoxicating liquors, although kept 
 for sale contrary to law, are subject of lar- 
 ceny : State v. May, 20-305. 
 
 325. " Money " and " bank notes " are sub- 
 jects of larceny: State v. Carr, 43-418: 
 
 326. Indictment ; description of notes or 
 bills: An indictment describing money and 
 notes as "gold and silver coin " and "Clark's 
 Exchange Bank bills of the value of," etc., 
 held sufiicient: Munson v. State, 4 G. Gr., 
 483. 
 
 327. So, also, an indictment held sufficient 
 which charged the taking of " a promissory 
 note for the payment of money, commonly 
 called a bank note, purporting, etc. , of the 
 value of," etc. . State v. Bond, 8-540. 
 
 328. So also one charging the larceny of 
 " $180 in bank notes, usually known and de- 
 scribed as greenbacks : " State v. Hocken- 
 berry, 30-504. 
 
 329. So held, also, where the property was 
 described as bank bills of the amount and 
 
CRIMINAL LAW, II, 2, c. 
 
 427 
 
 Larceny. 
 
 value of, etc. , ' ' the number and denomina- 
 tion of which are to the jury unlsnown : " 
 State V. Hoppe, 39-468. 
 
 330. It is not required that, in an indict- 
 ment for larceny of an instrument in writ- 
 ing, the property sliall be more particularly 
 described than any other stolen property; 
 therefore, held, that an indictment charging 
 that defendant took, etc., a bill of exchange, 
 to wit, an order for the payment of money 
 (describing it), and of the value of $30.97, was 
 sulfioient: State v. Phrson, 59-371. 
 
 331. Where the indictment alleges the 
 value of a check charged to liave been stolen, 
 such allegation must be taken as equivalent 
 to an allegation that the instrument called 
 for at least that amount of money : Ibid. 
 
 332. Indictment for larceny from a bank, 
 describing the property as seven one hundred 
 dollar notes, of the value and denomination 
 of one hundred dollars each, consisting of 
 national bank notes, national currency notes, 
 called greenbacks, and all of the aggregate 
 value of seven hundred dollars, held suffi- 
 cient as to description: State v. Graham, 65- 
 617- 
 
 333. Evidence: A pertinent, well-connected 
 chain of circumstances, showing that certain 
 money found is the same as that taken from 
 the prosecutor, is sufifioient evidence of lai-- 
 ceny of such money from him, although he 
 cannot identify any of the particular bills: 
 State V. Hpppe, 39-468. 
 
 334. In a iDarticular case, held, that the 
 evidence was sufficient to identify the bills 
 found on the person of defendant to be the 
 same as those charged to have been stolen 
 from the prosecutor, the general appearance, 
 manner of folding and denomination of the 
 bills being the same: State v. Buckley, 60- 
 471. 
 
 335. Proof that defendant charged with the 
 larceny of bank notes, and in whose posses- 
 sion notes resembling those stolen were found 
 soon after the larceny, had money of the 
 same denomination some two or three 
 months before the larceny was committed, 
 would not be admissible in behalf of defend- 
 ant: State V. Graham, 65-617. 
 
 33G. Evidence in particular cases held suf- 
 ficient to sustain a conviction for larceny: 
 State V. Lillard, 59-479; State v. Day, 60- 
 100. 
 
 337. Corpus delicti: Where the evidence 
 in a prosecution for larceny showed that the 
 horse charged to have been stolen was put 
 into the stable at night and was gone the 
 next morning, held, that the corpus delicti 
 was sufficiently proven: State v. Rodman, 
 62-456. 
 
 338. Circumstantial: In a prosecution 
 for larceny, held proper to instruct the juvy 
 that the evidence to establish the facts nec- 
 essary to oon vict the defendant may ba di- 
 rect or circumstantial, or partly direct and 
 partly circumstantial: direct, as by persons 
 who saw the act; or circumstantial, as by 
 evidence of facts from which the guUt of de- 
 fendants may be fairly presumed: State v. 
 Brady, 37-126. 
 
 339. Proof of non-consent: The rule re- 
 quiring the production of the best evidence 
 of which the nature of the case admits would 
 require the introduction of the owner of the 
 stolen goods to prove his non-consent to the 
 taking except in cases where the property is 
 stolen from a bailee, or some other person 
 holding possession thereof, or where it is im- 
 possible to produce the evidence of the 
 owner : State v. Osborne, 28-9. 
 
 340. Proof of intent: In a prosecution for 
 larceny, defendant offered to prove by one 
 at whose house he stopped that his acts were 
 such as to show that it wds not his intention 
 to steal the property; held, that such offer 
 was too indefinite and the evidence was prop- 
 erly excluded : State v. Hart, 29-268. 
 
 341. Recent possession of stolen prop- 
 erty: Possession of the stolen property im- 
 mediately after a larceny is presumptive 
 proof that the party so in possession is guilty 
 of the larceny : State v. Brady, 27-126 ; State 
 V. Golden, 49-48. 
 
 342. Such presumption is sufficient to con- 
 vict unless rebutted : State v. Hessians, 50- 
 135, 
 
 343. Recent possession of stolen property, 
 unexplained, is evidence of guilt: Johnson 
 V. Miller, 63-529. 
 
 344. But such possession is presumptive 
 proof only after the stealing has been proved : 
 State V. Taylor, 35-273. 
 
 345. The possession must be recent in or- 
 der that it shall be admissible in evidence to 
 prove the guilt of the accused; Warren v. 
 State, 1 G. Gr., 106. 
 
428 
 
 CRIMINAL LAW, II, 2, c. 
 
 Larceny. 
 
 346. What is to be deemed recent posses- 
 sion depends very much on the character of 
 the goods stolen. If they are such as to pass 
 readily from hand to hand, the possession, in 
 order to raise a presumption of guilt, should 
 be much more recent than if they are of a 
 class of property which circulates more 
 slowly or is rarely transmitted: State v. 
 Walker, 41-317. 
 
 347. There may be cases where the posses- 
 sion is so long after the commission of the 
 crime that the court will refuse to submit the 
 question to the jury, deciding as a matter of 
 law that the possession is not recent, but in 
 all other cases the question is one of fact : 
 Ibid. 
 
 348. In a particular case, held, that an in- 
 struction directing the jury that, as a matter 
 of law, proof of possession of part of the 
 stolen goods four months after the commission 
 of the crime was recent possession from which 
 a strong presumption of guilt arose, unless 
 such possession was satisfactorily explained, 
 was erroneous : Ihid. 
 
 349. The admission of defendant that ten 
 months previous to the time the property 
 is found in his possession he had no such 
 property does not show the possession of the 
 property to be recent in such sense as to throw 
 upon him the burden of explaining such pos- 
 session : State v. Wallace, 47-660. 
 
 350. To warrant convicticfti of defendant 
 on proof of subsequent possession of the 
 stolen property, the identity of the property 
 should be satisfactorily established : State v. 
 Osborne, 45-425. 
 
 351. In a particular case, held, that the 
 method of finding the goods at a place not in 
 the dwelling-house of the defendant, and 
 under circumstances indicating a knowledge 
 on the part of others as to their location, were 
 sufficient to prevent the recent possession re- 
 lied upon from being satisfactory evidence of 
 guilt: Warren V. State, 1 G. Gr., 106. 
 
 352. Where a stolen horse when found 
 soon after the larceny was being ridden by a 
 traveling companion of the defendant, held, 
 that evidence of such fact was a circum- 
 stance tending to prove defendant's guilt, 
 and sufiScient to warrant his conviction: 
 State V. Pennyman, 68-216. 
 
 353. It seems that where the party in 
 whose possession recently stolen goods are 
 
 found claims to have bought them of a real 
 person, naming him, or of the thief, when 
 there was no previous acquaintance or evi- 
 dence of collusion, such explanation must be 
 negatived by the state; but an explanation 
 by such party that he bought of a stranger is 
 not sufficient to oblige the state to disprove 
 the statement before the presumption of 
 guilt will arise: State v. Brown, 25-561. 
 
 354. The person charged with larceny may 
 explain his possession of stolen property by 
 showing what was said to him at the time he 
 acquired possession ; State v. Jordan, 69-506. 
 
 356. Evidence of recent possession of stolen 
 property and falsity of explanations made 
 thereof, held sufficient in a particular case to 
 warrant a conviction : State ■y.^aHeff, 63-259. 
 
 356. While the presumption of guilt from 
 recent possession, being recognized by the 
 law, may be termed a presumption of law, it 
 may also be termed a presumption of fact, as 
 implying that from such fact the law will 
 raise a presumption: State v. Kelly, 57-644. 
 
 357. The presumption arising from the re- 
 cent possession of stolen goods may be over- 
 come by testimony establishing facts incon- 
 sistent with guilt. Good character may 
 serve in some cases to overcome such pre- 
 sumption : Ibid. ; State v. Riehart, 57-245. 
 
 358. Where the prosecution relies upon 
 possession by defendant of recently stolen 
 property, the defendant is not required to 
 overthrow such presumption by a prepon- 
 derance of evidence of the honesty of such 
 possession. Evidence sufficient to raise a 
 reasonable doubt in his favor is sufficient: 
 State V. Riehart, 57-245 ; State v. Emerson, 
 48-172. 
 
 359. In such cases it is sufficient to author- 
 ize an acquittal if the evidence is such as to 
 raise a reasonable doubt whether defendant 
 honestly came into possession of the stolen 
 goods. An insti^uction that the jury should 
 acquit if the evidence left it reasonably 
 doubtful whether defendant acquired the 
 possession by theft, held correct: State v. 
 Peterson, 67-564. 
 
 360. If the jury fail to find from the evi- 
 dence that defendant was in any manner 
 engaged in the larceny of the property they 
 should acquit, although he has failed to show 
 that he came honestly into possession: State 
 V. Jones-, 33-9. 
 
CRIMINAL LAW, II, 3, c. 
 
 429 
 
 Larceny. 
 
 I 301. The fact that recent possession of 
 stolen property has not been explained in a 
 manner consistent with defendant's inno- 
 cence will not in itself necessarily establish 
 his guilt : State v. Jordan, 69-506. 
 
 362. Possession of other stolen property 
 than that for the larceny of which defendant 
 was on trial, held admissible, not as showing 
 the commission of another crime, but as con- 
 tradicting the explanation made by defend- 
 ant as to the possession by him of the property 
 stolen in the, commission of the larceny for 
 which he is on trial: State v. Ditton, 48- 
 677. 
 
 363. Recent possession of property acquired 
 by breaking into a store-i'oom, if not ex- 
 plained, raises the presumption that the 
 breaking and entering were with intent to 
 commit larceny : State v. Golden, 49-48. 
 
 364. Grand and petit larceny: There are 
 not two degrees in the crime of larceny, but 
 only in the punishment ; and a conviction for 
 petit larceny bars a subsequent prosecution 
 for grand larceny : State v. Murray, 55-530. 
 
 365. So, also, a conviction for petit larceny 
 bars a prosecution for larceny from the per- 
 son : State v. Gleason, 56-203. 
 
 366. Under an indictment for larceny of 
 property of greater value than twenty dol- 
 lars, defendant may be convicted upon proof 
 of a larceny of part of the property less tlian 
 twenty dollars in value. The offense is the 
 same : State v. Hessian, 58-68. 
 
 367. In a trial upon an indictment for 
 larceny charging the value of the property 
 as exceeding twenty dollars, it is not neces- 
 sary to instruct the jury as to the difference 
 in the degrees of the offense of larceny. They 
 should merely be instructed to find the value 
 of the property : Ibid. 
 
 368. The finding of the jury that the 
 value of the property did not exceed twenty 
 dollars will not deprive the court of jurisdic- 
 tion, under an indictment for larceny, to im- 
 pose the proper sentence for the lesser of- 
 fense, although larceny of goods less than 
 twenty dollars in value is a misdemeanor ex- 
 clusively cognizable before a justice of the 
 peace: State v. Church, 8-352; State v. Sting- 
 ley, 10-488. 
 
 369. Where the jury are in reasonable 
 doubt as to whether the value of the prop- 
 erty stolen exceeds twenty dollars in value. 
 
 they should only convict of the lesser crime : 
 State V. Wood. 46-116. 
 
 370. Value of property stolen: The ver- 
 dict on an indictment for larceny should fix 
 the value of the property stolen, so that the 
 court may know of which degree of the of- 
 fense the defendant is convicted. If the ver- 
 dict does not so fix the value, a new trial 
 should be awarded: Ray v. State, 1 G. Gr., 
 316. 
 
 371. Such new trial will not be unlawful 
 as putting the defendant twice in jeopardy. 
 (Const., art. I, § 12): State v. Redman, 17- 
 329. 
 
 3 73. The jury should be instructed to assess 
 the value of the property at what it would 
 bring in the market, and not at what it was 
 worth to the owner : State v. Smith, 48-595. 
 
 373. The fact that the value of the prop- 
 erty was over twenty dollars, as well as the 
 stealing itself, must be made out beyond a 
 reasonable doubt to warrant a conviction of 
 the higher offense. A preponderance of evi- 
 dence alone will not be sufficient: State v. 
 Wood, 46-116. 
 
 374. The question whether the offense is 
 to be tried as a felony or a misdemeanor is to 
 be determined by the value of the property 
 as stated in the indictment or information, 
 and not by the value as found by the trial 
 jury: State v. Church, 8-252. 
 
 375. It is ,error to instruct the jury that 
 the question is as to the value of the property 
 to the owner. The true rule is the real value 
 of the property in the market : State v. Smith, 
 48-595. 
 
 376. Where the testimony as to the value 
 is conflicting, the supreme court will not 
 reverse the case unless there is such want of 
 evidence in support of the verdict as to give 
 rise to the presumption that it was not the 
 result of an honest and intelligent exercise of 
 judgment by the jury : State v. Scott, 48-597. 
 
 377. Tenne: Where property is stolen 
 within the jurisdiction of another state and 
 brought within this state, the offense is pun- 
 ishable as larceny in this state on the princi- 
 ple that the continued possesjsion of property 
 stolen is in itself larceny. Every act of the 
 thief in the removal of the property and 
 keeping it from the possession of the owner 
 is, in contemplation of law, an offense : State 
 V. Bennett, 14-479. 
 
430 
 
 CRIMINAL LAW, II, 2, d, e 
 
 Compound larcenies. — Emfcezzlement. 
 
 378. In an indictment for larceny the 
 venue may be laid in any county in which 
 the thief was possessed of the stolen goods : 
 State V. Lillard, 59-479. 
 
 370. Kfcoverj of stolen property: Where 
 stolen property is sold to a third person and 
 afterwards retaken from him by the owner, 
 he may recover the price paid in an action 
 against the seller, even though the seller has 
 not been convicted of the larceny: Barton 
 V. Faherty, 3 G. fir., 327. 
 
 d. Compound larcenies. 
 
 380. Nature of: Code, g§ 3903-8905, merely 
 points ovit certain circumstances which are 
 an aggi-avation of the offense of larceny, 
 and will subject the offender to a severer 
 penalty. The facts of the time and place of 
 the commission affect only the degree of 
 punishment which shall be imposed upon 
 the offender : State v. Elshani, 70 . 
 
 381. Larceny from a dwelling-house in 
 the night-time and in the day-time are not 
 different offenses ; but each differs from sim- 
 ple larceny only in the circumstances affect- 
 ing the degree of punishment, and they may 
 be charged in the same indictment : Ibid. 
 
 382. Where defendant was indicted for 
 stealing personal property of less than twenty 
 dollars in value from a dwelling-house in 
 the day-time, held, that the offense was one 
 within the jurisdiction of the district court : 
 State V. Dawson, 17-584. 
 
 383. An acquittal of larceny from a dwell- 
 ing-house in the night-time prevents a sub- 
 sequent prosecution for robbery in the same 
 transaction, us each includes the crime of 
 larceny : State v. Mikesell, 70— — -. 
 
 384. Larceny from the person: A prior 
 conviction or acquittal of the offense of lar- 
 ceny will bar a subsequent trial for larceny 
 from the person committed in the same trans- 
 action charged on the first trial. Stealing 
 fi-om the person is larceny and nothing more : 
 State V. Gleason, 56-203. 
 
 386. All the elements of the crime of lar- 
 ceny from the person are embraced in the 
 crime of robbery as defined by statute. The 
 fact that the evidence shows the additional 
 element of putting in feai-, such as to make 
 the act robbery, wiU not prevent the punish- 
 ment of defendant in a prosecution for lar- 
 ceny from the person : State v. Graff, 66-482. 
 
 386. Common tlilef : Under a statute prcn 
 viding that, if a person previously convicted 
 of larceny commits another larceny or is con- 
 victed therefor, or is at the same term of 
 coui t con^'icted of three distinct larcenies, ho 
 shall be deemed a common and notorious 
 thief and subject to a punishment greater 
 than that for larceny, held, that the punish- 
 ment prescribed should be inflicted when the 
 facts authorizing it appeared on the trial of 
 the accused for larceny, and that the statute 
 did not describe a distinct crime or contem- 
 plate that the indictment should state the 
 facts necessary to show the accused to be a 
 common and notorious thief or charge him 
 with being such : State v. Riley, 28-547. 
 
 e. Mnbesslement. 
 
 387. By public officer: The statute (Code, 
 g 3908) making it criminal in a public officer 
 to loan, convert, use or invest public moneys 
 in his hands, differs from the statute (Code, 
 §§911, 912) providing a penalty for loaning 
 out public funds for private purposes, in this: 
 that the latter sections contemplate cases 
 where no loss results, while the former re- 
 fers to cases where the money is unaccounted 
 for. An indictment under the former sec- 
 tion should allege that the money is unac- 
 counted for : State v. Brandt, 41-593. 
 
 388. To constitute the offense of embezzle- 
 ment described by Code, § 3908, just refen-ed 
 to, the money must have been both misap- 
 plied and lost, and the crime consists only in 
 converting, using or loaning so much of the 
 public money intrusted to the officer for 
 safe-keeping as is taken and unaccounted 
 for : State v. Parsons, 54r405. 
 
 389. It being provided that the boards of 
 directors of independent school districts shall 
 elect a treasurer, lield, that an indictment 
 against such treasurer, designating liim as 
 "treasurer of the board of directors of the 
 independent school district of," etc., was suf- 
 ficient; Ibid. 
 
 300. A deputy state treasurer is an officer 
 within the meaning of the section just re- 
 ferred to: State v. Brandt, 41-593. 
 
 391. One who has acted de facto as a pub- 
 lic officer cannot deny that he is such an 
 officer when indicted for malfeasance : State 
 r. Stone, 40-547. : ' ' 
 
 302. Conversion is established 'by showing 
 
CRIMINAL LAW, II, 3, e, f. 
 
 431 
 
 Embezzlement. — Rectiviag stolen property. 
 
 demand and refusal, unless a sufficient ex- 
 cuse is shown for such refusal: State v. 
 Bryan, 40-379. 
 
 35)3. A county treasurer prosecuted for 
 embezzlement may show that the defalcation 
 took place at such time that the prosecution 
 is barred by the statute of limitations, al- 
 though, by fraudulent statements to the 
 board of supervisors, he made it appear sub- 
 sequently to such actual defalcation that he 
 had on hand the necessary balance and that 
 his accounts were correct. The rule of estop- 
 pel applicable in a, civil action against the 
 treasurer cannot be enforced in a criminal 
 prosecution: State v. Hutchinson, 60-478. 
 
 394. The fact that the officers of a munici- 
 pal corporation loaned the public funds in 
 violation of the statute does not prevent the 
 same being recovered in an action by the cor- 
 poration against the person to whom they 
 were so loaned or his surety : District T'p v. 
 Calvin, 59-189. 
 
 395. By common carrier: The offense of 
 embezzlement by a common carrier can only 
 be committed upon property which has, 
 within the language of the statute, "been 
 delivered to be carried for hire:" State v. 
 Stoller, 38-331. 
 
 390. By officer, .ngent or servant: To 
 constitute the crime of embezzlement as de- 
 fined by statute in case of officers, agents, 
 clerks, servants, etc., there must exist the 
 relation of master and servant, or employer 
 and employee, and the property stolen or 
 converted must have been received by virtue 
 of such employment : State v. Johnson, 49- 
 141. 
 
 397. Under the statutory provision (Code, 
 § 8909) an agent of a corporation may be 
 guilty of embezzlement, although he is under 
 the age of sixteen years : State i: Goode, 68- 
 593. 
 
 398. Under this section an agent may 
 be guilty of embezzling his employer's money 
 by actual conversion, or by secreting with 
 intent to convei-t : Ihid. 
 
 399. "Where the owner of a watch de- 
 livered it to another under an agi-eement that 
 the latter was to trade it for a wagon and x-e- 
 ceive a certain sum as compensation for his 
 services, held, that the relation between the 
 parties was such that the wrongful conver- 
 sion by the person intrusted with the watch 
 
 constituted embezzlement: State v. Foster, 
 37-404. 
 
 400. The clause of the statute, " without 
 the consent of his employer," relates to th<3 
 embezzling and converting as well as to the 
 taking and secreting therein refen-ed to, and 
 the fact that the embezzling and converting 
 is without the consent of the employer should 
 be charged in the indictment : State v. Foster, 
 11-391. 
 
 401. Conversion may be shown either by 
 direct proof of the fact of conversion or by 
 proof of demand and refusal, but mere proof 
 of the receipt of funds and failure to ac- 
 count therefor on demand, while sufficient to 
 establish embezzlement by a public officer, 
 under provisions above referred to, is not 
 sufficient to show embezzlement by an agent 
 or servant : State v. Bryan, 40-379. 
 
 402. The crime of embezzlement embraces 
 all the elements of larceny except the actual 
 taking of the property or money embezzled : 
 State 11. Baldwin, 70 . 
 
 403. Where the taking is not animo fu- 
 randi, but the property is delivered to the 
 defendant voluntarily while he is in the em- 
 ploy of the owner, and afterwards is appro- 
 priated by him, the crime is not larceny but 
 embezzlement: Ennis v. State, 3 G. Gr., 67. 
 
 404. Where an agent, in order to make 
 his books balance and cover up deficiencies 
 on account of sums of money before appro- ' 
 priated to his own use, reported certain sums 
 as unpaid which were in fact received by 
 him, held, that he wjis guilty of embezzling 
 such sums : Bowman v. Brown, 53-437. 
 
 405. " Money or property," as used in the 
 statute, includes bills of exchange, etc. The 
 ci'ime of embezzlement as there defined is 
 similar to that of larceny, and covers oases 
 where, by reason of the trust reposed in de- 
 fendant, the act would not be larceny at > 
 common law. Whatever would be property 
 under one section would be under the other : 
 State V. Orwig, 34^103. 
 
 f . lieceiving stolen property. 
 
 406. Merely assisting the defendant by 
 giving him his breakfast and feed for stolen 
 horses, knowing that they were stolen, held 
 not sufficient to warrant a conviction of this 
 offense. The accused must have aided in 
 
4:;j-2 
 
 CRIMINAL LAW, II. a, g; 3, a. 
 
 Malicious mischief. — Cheating, fraud and conspiracy. 
 
 concealing or hiding the property : Upton v. 
 State, 5-465. 
 
 407. The fact of aiding in concealing stolen 
 goods, knowing them to be stolen, necessarily 
 implies a felonious intent : State v. Turner, 
 19-144. 
 
 4r08. The crime of concealing stolen prop- 
 erty may be committed as to property pro- 
 cured by burglary or robbery as well as by 
 larceny : Ihid. ; State v. Lane, 68-384. 
 
 409. To receive stolen property, with 
 knowledge of the theft, is suSioient to consti- 
 tute the crime : State v. Lane, 68-384. 
 
 410. Evidence in a particular case, held 
 sufBcient to support a verdict for receiving 
 and aiding in concealing, although no phys- 
 ical possession of the goods by defendant was 
 shown : State v. St. Clair, 17-149. 
 
 411. Defendant's explanations in a particu- 
 lar case as to how he came into possession of 
 the property being conflicting and unsatis- 
 factory, a verdict of guilty of receiving 
 stolen goods was held proper : State v. Mayer, 
 45-698. 
 
 g. Malicious m.iscM€f; trespass upon 
 land; injuries to animals. 
 
 412. An indictment charging in one count 
 that accused "injured and defaced" a build- 
 ing is not objectionable on the ground of 
 duplicity. The clauses in the statute (Code, 
 § 3985), being disjunctive, either one or all 
 the acts there specified may be charged in 
 one count and constitute the same offense : 
 State V. Hockenherry, 11-269. 
 
 413. Malicious injury to a church build- 
 ing is punishable under this section of the 
 statute, and it is sufficient to aver ownership 
 in the trustees, as such, without setting out 
 the character of their title : State v. Brant, 
 14^180. 
 
 414. Trespass upon land: A person may 
 be punished for the crime of malicious tres- 
 pass committed in cutting and carrying away 
 timber from school land, although the title to 
 the land is stiU in the United States : Chal- 
 font V. United States, Mor., 214. 
 
 415. An indictment charging the cutting 
 down and carrying away of standing timber 
 upon the land of another is not sustained 
 by proof that defendant carried away wood 
 being on such land : State v. McConkey, 20-574. 
 
 416. The name of the owner of the land 
 
 upon which the trespass is charged to have 
 been committed should be set out in the in- 
 dictment, or, if unknown, the indictment 
 should so state : Ibid. 
 
 41 7. Where the statute did not make the 
 punishment of the offense of wilful trespass 
 depend upon the value of the property, held, 
 that the value of the property need not be 
 found by the jury, as it did not necessarily 
 fix the amount of punishment: State v. 
 Gigher, 23-318. (But the present statute. 
 Code, § 8983, makes the punishment less in 
 case the value of the property does not ex- 
 ceed fifty dollars.) 
 
 418. Injuries to animals: An indictment 
 alleging the malicious killing of a sow held 
 sufficient, without alleging and proving that 
 a hog is a domestic beast within the language 
 of Code, § 3977 : State v. Enslow, 10-115. 
 
 419. An indictment charging the maim- 
 ing and disfiguring of an animal is not bad 
 for duplicity; any one or all of the acts 
 mentioned may be charged in the same in- 
 dictment, and the proof need only cover so 
 much of the allegation as constitutes a com- 
 plete ofl'ense. To constitute the offense of dis- 
 figuring the disfigurement need not be per- 
 manent or great : State v. Harris, 11-414. 
 
 420. While mere wanton injury to an ani- 
 mal without malice against any person may 
 not be sufficient to constitute the offense of 
 malicious injury to animals, yet though the 
 owner may be unknown, if the act is done 
 maliciously, for the purpose and with the in- 
 tent of injuring such person, u is sufficient: 
 State V. Linde, 54-139 ; State v. Williamson/ 
 68-351. 
 
 421. The infliction of a wilful and wanton 
 injury u^^on an animal is evidence that the 
 act is malicious both as to the animal and 
 the owner: State v. Williamson, 68-351. 
 
 422. A party has no right to prevent mali- 
 cious trespass by the use of means dangerous 
 to life, or by inflicting great bodily injury, 
 as by a spring gun : Hooker v. Miller, 87-613. 
 
 3. Cheating, fraud and conspiracy. 
 
 a. Cheating hy false 'pretenses atid 
 otherwise. 
 
 423. False pretenses: The statute changes 
 the common law rule as to cheats, and a per- 
 
CRIMINAL LAW, II, 3, a. 
 
 433 
 
 Cheating by false pretenses and otherwise. 
 
 son may be guilty of cheating by false pre- 
 tenses, consisting of representations and acts, 
 although no false tokens ai-e used (Code, 
 § 4073; : State v. Reidel, 26-4S0. 
 
 424. The crime of cheating by false pre- 
 tenses may be committed by means of false 
 representatloas. Therefore, held, that the in- 
 dictment charging defendant with obtaining 
 the signature of prosecutor to a promissory 
 note, by means of false representations and 
 pretenses that such note was an order for a 
 certain number of patent churns, etc., well 
 knowing such representations to be false, was 
 sufficient: State v. Joaquin, 43-131. 
 
 4£5. A false promise will not sustain the 
 charge of a crime under this section. There 
 must be a pretense and representation, in fact, 
 that is false, and which was i-elied upon by 
 the party def r.auded ; but the fact that a false 
 promise was combined with the false pre- 
 tense does not take away the criminal char- 
 acter of the act : State v. Doice, 27-37.3. 
 
 42(5. So, where a party, under the pretense 
 of having come to pay a debt, on a promise 
 to pay the same, fraudulently procured from 
 his creditor and got into his possession a re- 
 ceipt for his debt, held, that the facts consti- 
 tuted an offense as here contemplated : Ibid. 
 
 427. An indictment for this offense cannot 
 be predicated upon representations which are 
 mere matters of opinion : State v. Webb, 26- 
 2G3. 
 
 428. An indictment charging that by means 
 of false token and pretenses, etc., the defend- 
 ant ob|;ained the property described, Jield, to 
 sufficiently charge that the party to whom 
 the pretense was made relied thereon : State 
 V. MeConhey, 49-499. 
 
 429. By statute (Code, § 3D0C) it is made 
 larceny to obtain property by falsely person- 
 ating another with intent to convert such 
 property to one's ovvn^ use. Such a case 
 would not be larceny at common law, as it 
 does not involve a trespass: State v. Brown, 
 25-501. 
 
 430. Where defendant was indicted for 
 obtaining property in exchange for a lot of a 
 •certain description which he pretended to 
 point out, but it was in fact located elsewhere 
 than was indicated and was of no value 
 held, that the party to whom the lot was 
 shown was justified in believing the lot de- 
 .scribed was located as indicated, and that it 
 
 Vol. 1 — 28 
 
 was not error to refuse to instruct the jury 
 that it must be shown that the paj'ty to 
 whom the representations were made exer- 
 cised ordinary prudence and diligence to in- 
 form himself of the tmth of the reiDresenta,- 
 tions : State v. McConlcey, 49-499. 
 
 431. Also held that in such case the crime 
 would have been complete, even if it had ap- 
 peared that defendant was the owner of the 
 lot which he pointed out as that conveyed by 
 him: Ibid. 
 
 432. Representations made by acts or dec- 
 larations intended to induce the belief that 
 the person making them is some one else 
 may be suificient to constitute the crime, al- 
 though not amounting to direct representa- 
 tions that the party's name is that of the per- 
 son whom he personates : State v. Gable, 60- 
 447. 
 
 433. False promises, coupled with false 
 statements of fact, may amount to false pre- 
 tenses : State v. Montgomery, 56-195. 
 
 434. The question is for the jury whether 
 the false representations actually misled the 
 person claimed to have been defrauded, and 
 in determining that question they should 
 take into account his age, experience, state 
 of health, etc. : Ibid. 
 
 435. Where defendant had borrowed 
 money on the representation that his brother 
 was to arrive with money, coupled with the 
 promise to use it in payment of the suin bor- 
 rowed, held, that such representation and 
 promise amounted to a pretense that he had 
 the money : State v. Fooks, 65-196. 
 
 436. To support a conviction, it need not 
 appear that the false pretenses were the only 
 inducements for giving credit or delivering 
 property to the accused. It is sufficient if 
 they had such efiect that without their influ- 
 ence upon the mind of the party defrauded 
 he would not have parted with the property 
 or given credit : Ibid. 
 
 437. If the false representations are made 
 with the design of decei ing and thereby ob- 
 taining property, and have that effect, the 
 guilty party cannot escape on the ground of 
 weak credulity : Ibid. 
 
 438. Where defendant procured property 
 by representing that he had purchased a farm 
 in the neighborhood, held, that the crime 
 was committed : State v. Fooks, 65-452. 
 
 439. Where a buyer acquires propei-ty by 
 
434 
 
 CRIMINAL LA.W, II, 3, a. 
 
 Cheating by false pretenses and otherwise. 
 
 reason of statements by him to the seller 
 respecting his concUtion, made to induce the 
 sale, which statements he knows to be false, 
 it is no defense that he nevertheless intended 
 to i^ay for the property : State v. Neimeier, 
 66-034. 
 
 4i0. Indictment: In a particular case, 
 held, that the indictment sufficiently charged 
 that the party defrauded parted with his 
 property on the faith of defendant's false 
 rei resentations : Ibid. 
 
 441 . In an indictment for obtaining money 
 under false pretenses, the false pretenses 
 should be particularly set forth: United 
 States V. Boss, Mor., 164. 
 
 4i2. Sfieiiler: In a trial for obtaining 
 money under false pretenses, the jury should 
 be told that it is necessary to prove that defend- 
 ant made the false representations, know- 
 ing tbem to be false, and that the other party 
 was deceived and thereby induced to act: 
 State V. Rivers, 58-103. 
 
 4i3. Evidence; other acts : Where defend- 
 ant was indicted for false pretenses in pro- 
 curing a bank to accept as collateral security 
 an, invalid mortgage, held, that previous and 
 subsequent dealings with the bank might be 
 shown as throwing light upon the intent of 
 the defendant and the fact as to whether the 
 cashier was in fact deceived: Ibid. 
 
 414. Obtaining property: To constitute 
 the crime, the person must have obtained, 
 by means of the false pretenses, either the 
 title to the property, or the unqualified right 
 of possession thereof, for some length of 
 time : State v. Anderson, 47-142. 
 
 445. Obtained an indorsement of credit on 
 a note by false pretenses, with intent to 
 defraud, does not constitute an offense un- 
 der this section : State v. Moore, 15-412. 
 
 448. An indictment charging the obtain- 
 ing by false pretenses of certain notes, desig- 
 nating them as property, and in a second 
 count charging the obtaining in the same 
 manner of the same notes, but designating 
 them as written instruments, the false mak- 
 ing of which would be forgery, does not 
 charge two offenses. Such charges might 
 be contained in the same count without ren- 
 dering the indictment bad for duplicity : 
 State V. House, 55^60. 
 
 447. That the false representations were 
 made in another county will not prevent the 
 
 offense being punishable in the county where 
 the property was obtained. The latter 
 county is the one where the offense was com- 
 mitted: Ibid. 
 
 448. Gross frauds and cheats: Punish- 
 ment is provided by statute (Code, § 4081) for 
 gross frauds and cheats, and under this pro- , 
 vision all frauds and cheats are certainly not 
 punishable. Slanderous words charging a 
 person with cheating, defi-auding, etc., are, 
 therefore, not actionable per se: Lucas v, 
 Flinn, 35-9. 
 
 449. Sleight of hand : The statute (16 G. 
 A., ch. 103; McClain's Ann. Stat., 1031) pro- 
 viding a punishment for swindling by three- 
 card monte, sleight of hand, or other device, 
 etc., embraces any sleight of hand peiform- 
 ance, whether done by the use of cards or 
 other devices : State v. Quinn, 47-368. 
 
 450. False brands: The fact of making 
 and branding, with intent to deceive, with- 
 out reference to whether the articles so 
 marked or branded are to be sold or not, is 
 sufScient to constitute a ci-ime under the 
 statute providing a. punishment for the false 
 marking or branding of packages: State v. 
 Surge, 7-355. 
 
 451. Fa'se receipts: Where an auditor 
 gave a paper purporting to be a certificate or 
 receipt stating that a person had paid to the 
 treasurer of the county certain interest due 
 the school fund, which statement was false, 
 held, that the giving of such paper was a 
 crime under the statutory provision (Code, 
 § 3908) relating to the giving of false receipts, 
 and that an intent to defraud need not be 
 charged : State v. Morse, 53-509. 
 
 452. Disposing of property covered by 
 warehouse receipt: Under the statutory 
 provision (Code, § 4088) prohibiting the sell- 
 ing, shipping, or removal by a warehouse- 
 man or other such person of any property 
 received for safe-keeping and for which a 
 voucher or receipt has been given, without 
 the written consent of the person holding 
 such receipt, it is not competent for a, de- 
 fendant charged with such crime to show 
 that the shipment or disposal of the property 
 was with the knowledge or Verbal consent 
 of the person holding the receipt. The pro- 
 vision is intended for the protection of the 
 community as well : State v. Stevetison, 52- 
 701. 
 
CRIMINAL LAW, II, 3, b, c. 
 
 Wrongful disposal of property. — Conspiracy. 
 
 b. Wrongful disposal of conversion 
 of property; selling mortgaged 
 property. 
 
 453. Fraudulent coiiTeyance: Ttie inten- 
 tion to hinder and delay creditors is the es- 
 sential element of the crime defined by the 
 statutory provision prohibiting the convey- 
 ance, etc. , of property with intent to defraud 
 creditors, and an instrument such as is re- 
 ferred to in the statute is void (Code, § 4074) : 
 Davenport v. Cummings, 15-319. 
 
 454. To establish the crime, a fraudulent 
 intent in fact, as distinguished from an in- 
 tent which may be presumed in law, must 
 be shown : lAllie v. McMillan, 52-463. 
 
 455. The intention with which a convey- 
 ance is made cannot render the act criminal, 
 if no legal or equitable rights of others are 
 affected thereby. The statute applies only 
 to cases where some one has or may have a 
 claim or right to the ijroperty which may be 
 enforced at law or in equity : Day v. Lown, 
 51-364. 
 
 45G. Selling mortgaged property: The 
 indictment under the statutory provision for 
 the punishment of the illegal sale of mort- 
 gaged property (Code, § 3895) should aver 
 that the mortgage remains unsatisfied : State 
 V. Gustafson, 50-194. 
 
 457. The consent of the mortgagee, as re- 
 ferred to in the statute, while it prevents the 
 act from being a crime, does not constitute a 
 waiver of his lien on the property : Oswald 
 V. Hayes, 42-104. 
 
 488. It is the selling of mortgaged property 
 without the consent of the then holder of the 
 mortgage that is made criminal. Consent of 
 the mortgagor given before the execution of 
 the mortgage, that the mortgaged property 
 may be sold, may, however, constitute a con- 
 tinuing consent, at least until the act con- 
 sented to could properly be done, and may 
 prevent an act in accordance with such con- 
 sent from being criminal. The rule as to the 
 inadmissibility of parol evidence to contra- 
 dict a written contract is not applicable in 
 such case. If the consent is such, in what- 
 ever way it may be given, that the seller 
 honestly believes that he is authorized to sell 
 the property, his honest act cannot be con- 
 verted into a criminal one by the rules of 
 evidence: Walker v. Qbump, 69-741. 
 
 459. Where a mortgage of personal prop- ' 
 erty provided that, if the mortgagor removed 
 it from the county, the mortgagee might ■ 
 take possession of and sell it, Txeld, that a 
 mere removal from the county would consti- 
 tute no offense under this section, and a sub- 
 sequent concealment or sale would not be an 
 offense in the county where the mortgage 
 was executed ; but it seems the offense would 
 be committed in the county from which the 
 propei-ty %vas thus subsequently taken foi: 
 the purpose of concealment and sale : State v. 
 Julien, 48-445. 
 
 460. A subsequent mortgage of th^ same 
 property by the mortgagor is not void under 
 this statutory provision : Tootle v. Taylor, 
 64-639. 
 
 4G1. Driving away stock: Under the 
 statute providing a penalty for the driving 
 away of stock without the consent of the 
 ownei' and allowing the recovery of damages 
 therefor (Code, § 3896), it is necessary, in or- 
 der to recover damages as provided, to allege 
 and prove that defendant had knowledge of 
 the fact that the animal entered his drove 
 and was being taken away : Chamberlain v. 
 Gage, 20-303. 
 
 c. Conspiracy. 
 
 When actionable, see Conspiracy. 
 
 462. What constitutes : To constitute the 
 crime of conspiracy, the accused must con- 
 federate together to do, either a criminal act, 
 or an act which is not criminal by criminal 
 means. In the latter case the acts constitut- 
 ing the illegal means must be specifically 
 charged: State v. Potter, 28-554; State v. 
 Stevens, 30-391 ; State v. Jones, 13-269. 
 
 463. In order that the object of the con- 
 spiracy may be criminal, the injury intended 
 should appear on the face of the indictment 
 to be a criminal one, such an injury as the 
 statute makes an offense: State v. Stevens, 
 30-391. 
 
 464. An indictment charging conspiracy 
 with fraudulent intent wrongfully to injm-e 
 the character of prosecutrix by obtaining a 
 divorce from her by making false charges of 
 adultery, etc., does not charge facts sufficient 
 to constitute conspiracy as against such pros- 
 ecutrix: Ibid. 
 
 465. Where the conspiracy is to do a crim- 
 inal act, it is sufficient if it be described by 
 
436 
 
 CRIMINAL LAW, II, 3, o; 4. 
 
 Conspiracy.— Forgery and counterfeiting. 
 
 the proper name or term by which it is 
 usually known in law: State v. Potter, 28- 
 654; State v. Savoye, 48-503. 
 
 468. Therefore, lield, that an indictment 
 charging a conspiracy to seduce prosecutrix 
 was sufficient, without alleging that she was 
 unmarried and of previously chaste charac- 
 ter : State v. Savoye, 48-562. 
 
 4G7. An indictment charging defendants 
 with conspiracy to procure proseeutrix to go 
 with them with a view of bringing about a 
 sham marriage and thus causing her seduc- 
 tion, held sufficient to charge a conspiracy to 
 commit a crime : Ibid. 
 
 46S. A charge that defendants conspired 
 to " cheat and defraud," lield not sufficient 
 to charge the crime of conspiracy: State v. 
 Jones, 13-269. 
 
 469. Where the intended act charged is 
 not criminal, the indictment should charge 
 with what means the act was to be done; 
 but if the intended act charged is criminal, 
 an indictment charging a conspiracy to com- 
 mit such injury need not charge the means 
 intended to be used : State v. Ormiston, 66- 
 143. 
 
 470. While the offpnse of conspiracy may 
 be complete without the commission of the 
 overt act which the conspirators agreed to 
 commit, and it is unnecessary to charge the 
 commission of the overt act, even if com- 
 mitted, yet it is usual to set out the com- 
 mission of the act by way of aggravation of 
 the offense ; and where the overt act is thus 
 charged, it does not follow necessarily that 
 the indictment is designed to charge any- 
 thing more than conspiracy, and if it does 
 not appear that defendant was or was in- 
 tended to be put on trial for anything but the 
 crime of conspiracy, such indictment will not 
 be defective as charging raore than one 
 crime: Ibid. 
 
 471. An allegation that defendants con- 
 spired to assault a person with intent to in- 
 flict great bodily injury charges conspu-acy 
 to assault and inflict such injury, and is not 
 open to the objection of charging conspiracy 
 with intent to intend : Ibid. 
 
 472. The crime is completed when the 
 conspiracy is formed, and it is immaterial 
 whether the object intended be accomplished 
 or not : State v. Savoye, 48-563. 
 
 473. A conspiracy to take from an offi- 
 
 cer on a writ of replevin intoxicating liquors 
 seized under information for their forfeiture 
 is a con.spiracy to do an unlawful act, and 
 therefore punishable by statute: State v. 
 Harris, 38-243. 
 
 474. A charge of conspiracy to injure the 
 property of another will not be supported 
 where it appears that the acts complained of 
 were done in the exercise of an avowed legal 
 right, the existence of which the testimony 
 strongly, if not conclusivelj', establishes, and 
 that they were not done as a result of a con- 
 spiracy to wrongfully injure said property: 
 State V. Flynn, 28-36. 
 
 475. The combination and agreement of 
 the parties to commit a crime may be proven 
 by the circumstances connected with the 
 transaction which is the subject of the accusa- 
 tion. In other words, conspiracy may be 
 shown by circumstantial evidence: State v. 
 Sterling, 34r443. 
 
 476. An indictment for a conspiracy to 
 " rob and steal " is not bad as charging more 
 than one offense. Even should the con- 
 spiracy contemplate the commission of sev- 
 eral distinct felonies, the crime would be 
 single: Jbid. 
 
 As to how far the acts and declarations of 
 one conspirator are receivable as against 
 another, see infra, g§ 1479-1484. 
 
 4. Forgery and oounterfeitmg. 
 
 477. i'orgery defined: Forgery is the felo- 
 niously making or materially altering, with 
 intent to defraud, of any writing which, if 
 genuine, might apparently be of legal effi- 
 cacy or the foundation of a legal Uability: 
 State V. Johnson, 36-407 ; State v. Thompson, 
 19-299. 
 
 478. In a prosecution for forgery in alter- 
 ing a receipt, the fact that defendant could 
 not reap any personal advantage from the 
 alteration is not a defense; the making or 
 alteration of any writing with a fraudulent 
 intent, whereby another may be prejudiced, 
 is forgery : State v. Wooderd, 20-541. 
 
 479. The criminal intent, inferred from 
 forging an instrument and using it in sup- 
 port of a claim, cannot be negatived by 
 proof that the claim is a just one: Ibid. 
 
 489. In order to constitute forgery it is not 
 necessary that the signature of the instru- 
 
CRIMINAL LAW, II, 4. 
 
 437 
 
 Forgery and counterfeiting. 
 
 ment be false; a fraudulent alteration, mak- 
 ing the instrument such as was not signed by 
 the maker, issuiBcient: Caulkins v. Whisler, 
 29-495. 
 
 481. Alteration of an undated receipt by 
 afBxing a date thereto, so as to make it ap- 
 pear as a receipt for a subsequent account, is 
 Buificient to constitute forgery : State v. Max- 
 viell, 47-454. 
 
 482. The detaching of a condition from an 
 instrument, by which it is converted from a 
 non-negotiable to a negotiable instrument, 
 lield to constitute forgery : State v. Stratton, 
 27-430. 
 
 483. Where the defendant counterfeited 
 the certificate of a justice of the peace as to 
 the presentation and destruction of gopher 
 scalps, for which a bounty is allowed by 
 statute, held, that the act was sufficient to 
 constitute forgery: State v. Johnson, 26- 
 407. 
 
 484. To constitute forgery of a bill of ex- 
 change or order, it is not necessary that it 
 contain the name of a payee or drawee. 
 It is sufficient that it purports to create a lia- 
 bility against the person signing it : State v. 
 Baumon, 52-68. 
 
 485. In a prosecution for forgery, held, 
 that a particular instrument therein set forth 
 sufficiently purported to create a liability 
 against the person whose name was written 
 thereto: Ibid. 
 
 48(5. It is not necessary to aver the genu- 
 ineness or validity of the instrument forged. 
 The essence of the crime consists in the 
 doing of the act with intent to defraud. If 
 the writing is invalid on its face, it cannot 
 be the subject of forgery, but it may be if 
 the invalidity must be made out from ex- 
 trinsic facts : State v. Pierce, 8-331 ; State v. 
 Johnson, 26-407. 
 
 487. The forwarding of a forged applica- 
 tion for insurance by an insurance agent for 
 the purpose of procuring the commission due 
 to him upon such application, held to consti- 
 tute forgery although the company refused 
 to issue a policy upon such application: 
 Fountain v. Smith, 70 . 
 
 488. The alteration of an unsigned indorse- 
 ment, on the back of a note, of money paid, 
 will not constitute forgery, where it does not 
 appear but that such indorsement was a mere 
 private memorandum made by the holder 
 
 and not intended as a receipt : State v. Davis, 
 53-253. 
 
 4S9. The act of one who is intrusted with 
 the making of an instrument, and who fraud- 
 ulently makes a promissory note which is 
 voluntarily signed by the other party, is not 
 such a fraudulent making of the note as to 
 constitute forgery: Douglass v. Matting, 29- 
 498. 
 
 490. Where the indictment charged the 
 forgery of an instrument signed by " Wright 
 and Whaley,'' and the instrument when of- 
 fered in evidence appeared to be signed 
 " Wright Whaley,'' and it also appeared that 
 this signature was an attempted signature of 
 "Wright and Whaley," held, that the instru- 
 ment was properly admissible : State v. Nich- 
 ols, 38-110. 
 
 491. An indictmoiit alleging in substance 
 that the defendant falsely and feloniously, 
 and with intent to defraud, made a nego- 
 tiable promissory note, describing it and set- 
 ting out a copy, is sufficient to charge the 
 crime : State v. Stuart, 61-203. 
 
 493. The instrument should be set forth in 
 the indictment, or some excuse for not doing 
 so should be shown, but no technical form of 
 words is necessary : State v. Johnson, 26-407. 
 
 493. It is not necessary that the indict- 
 ment allege tlie name of the person to whom 
 the instrument was uttered : State v. Hart, 
 67-142. 
 
 494. Forgery, and uttering and publishing 
 as true a forged instrument, are distinct 
 offenses, and an indictment charging both is 
 bad for duplicity (overruling Statev. Nichols, 
 38-110): Statev. MeCormaclc, 56-585. 
 
 495. Evidence: On a trial for the forgery 
 of receipts, it is competent to show the pay- 
 ment of the indebtedness receipted for : *State 
 V. Wooderd, 20-541. 
 
 498. While proof of another act of forgery 
 or uttering forged paper may be inti-oduced, 
 it is doubtful whether it ought not to be con- 
 fined to a case where the former transaction 
 was with reference to paper of the identical 
 character of that involved in the act charged-! 
 State V. Saunders, 68-370. 
 
 49 7. When such other transaction is sought- 
 to be shown in evidence, it must appear that 
 in the transaction a crime was committed : 
 Ibid. 
 
 49S. And it is necessary that the other in- 
 
4:38 
 
 CRIMINAL LAW, II, 4; 5, 
 
 Forgery and counterfeiting.— Offenses against public justice. 
 
 Btrument referred to must be produced or its 
 absence accounted for : Ihid.; Statev. BrecJc- 
 enridge, 67-204. 
 
 499. That defendant, on the trial of a civil 
 cause in the county of his residence, produced 
 the J'orged instrument which he is charged 
 with forging, may be considered by the jury 
 as tending to show that the forgery was com- 
 mitted in that county: State v. Thompson, 
 19-299. 
 
 500. Passing forged instrnnients: The 
 fact that defendant, in uttering a forged note, 
 falsely represented himself to be the payee of 
 the note, is sufficient evidence of intent with- 
 out other evidence that he had knowledge of 
 the forgery : State v. Williams, 66-573. 
 
 501. To justify a conviction for passing a 
 forged instrument, the jury must find beyond 
 a reasonable doubt that defendant had 
 knowledge of the forgery : Ibid. 
 
 oOiJ. Having counterfeit money in pos- 
 session: On the trial of an indictment for 
 having five or more pieces of counterfeit 
 money in possession, knowingly, with intent 
 to pass, it should be proved that accused had 
 in his possession five or more pieces, in order to 
 make out the offense : State v. Pepper, 11-347. 
 
 503. In the section of the Code, § 3925, 
 providing that if any perst>n forges or coun- 
 terfeits coin, " and has in his possession five 
 or more pieces," etc., the word "aiid" is 
 construed to mean " or," and either of the 
 acts prescribed will constitute the offense. 
 Therefore an indictment charging both of 
 them will charge but one offense and will 
 not be open to the objection of duplicity: 
 State V. Myers, 10-448. 
 
 504. So, if the indictment charges the 
 counterfeiting and the 'having in possession 
 with intent, etc., in different counts, it will 
 not be bad if both counts refer to the same 
 transaction : State v. MePherson, 9-53. 
 
 505. The possession, as contemplated in 
 the statute, may consist in having the coun- 
 terfeit coin deposited in a secret place, within 
 the knowledge and the control of the ac- 
 cused: Statev. Washburn, 11-245. 
 
 508. Counterfeiting': It is not necessary 
 in an indictment for counterfeiting to 
 charge that the coin was counterfeited in a 
 similitude to the current coin of the United 
 States, or that it was of any value : State v. 
 Williams, 8-533. 
 
 507. The counterfeiting of coin of the 
 United States may be punished under the 
 state statute providing for the punishment of 
 that offense ; the jurisdiction of the federal 
 courts over such offense is not exclusive: 
 State V. MePherson, 9-53. 
 
 50s. Intent to defraud : In an indictment 
 for having in possession counterfeit bank 
 bills, with intent to defraud, knowing them 
 to be counterfeit, copies of the bills must be 
 set out : State v. Callendine, 8-288. 
 
 509. In such case, intent to defraud any 
 person or corporation need not be avened. 
 An averment in the statutory language, 
 charging the having in possession with in- 
 tent to defraud, is sufficient. Nor need it be 
 averred that the intent was felonious or 
 wilful: Ibid. 
 
 510. The description of bank bills in a par- 
 ticular case held insufficient : Ibid. 
 
 511. The person intended to be defrauded, 
 or the extent or particulars of the fraud, need 
 not be stated : State v. Maxwell, 47-454. 
 
 512. It is not necessary, in such case, to 
 charge an intent to defraud any particular 
 person : State v. Barrett, 8-538. 
 
 513. But if the name of the bank intended 
 to be defrauded is mentioned, it must' be 
 proved ns stated : State v. Newland, 7-242. 
 
 514. The existence of the bank or corpora- 
 tion must be proved, but proof of that fact 
 by reputation is sufficient: Ibid.; State v. 
 Barrett, 8-536. 
 
 515. And this is equally applicable to the 
 charge of falsely indorsing a note or bill: 
 State V. Pierce, 8-231. 
 
 516. An indictment charging accused with 
 uttering, passing and tendering in payment, 
 etc. , is not bad as charging more than one of- 
 fense: State V. Barrett, 8-536. 
 
 517. In an indictment for the uttering of 
 counterfeit money, the name of the person 
 injured must appear, if known, and if not 
 known such fact must be stated. The pro- 
 vision that no indictment shall be quashed if 
 an indictable offense is named therein does 
 not apply to such defect : Buckley v. State, 
 2 G. Gr., 162. 
 
 5. Offenses against public justioe. 
 
 a. Perjury. 
 
 518. What constitutes: The matter falsely 
 sworn to must be material, and its materiality 
 
CRIMINAL LAW, II, 5, a. 
 
 439 
 
 Perjury. 
 
 must be established by the evidence, and can- 
 not be left to presumption or inference: 
 State V. Aikens, 33-403. 
 
 519. Held, that a defendant, who, under a 
 former statutory provision that a claim barred 
 by the statute of limitations might be estab- 
 lished by the testimony of the opposite party, 
 vras called by plaintiff as a witness for the 
 purpose of establishing a claim by his own 
 testimony, and who testified falsely, might 
 be punished for perjury : State v. Voght, 27- 
 11.7. 
 
 520. Under the provisions of the bank- 
 ruptcy act requiring a schedule to be sworn 
 to and providing that false swearing should 
 prevent the applicant's discharge, and also 
 providing that he might be examined, and for 
 false swearing in such examination should be 
 deemed guilty of perjury, held, that mere 
 false swearing in the schedule would not 
 constitute perjury: United States v. Dickey, 
 Mor., 413. 
 
 521. Falsely swearing in an affidavit for 
 continuance that a witness is absent from 
 the county will constitute perjurj', and it 
 cannot be said that the oath is not material to 
 the issues in the case : State v. Shupe, 16-36. 
 
 522. Indictment: The materiality of the 
 false testimony must be shown by averment 
 in the indictment, but this may be done either 
 by express averment or the statement of such 
 facts as show its materality: State-v. Cun- 
 ningham, 66-94. 
 
 523. In an indictment for perjury in mak- 
 ing a false return to the assessor under oath, 
 it must be averred, not only that certain 
 property was withheld from the statement, 
 but also that such property was assessable 
 within the township within which the asses- 
 sor was authorized to act : Ihid. 
 
 524. Indictment for false statement in a 
 schedule sworn to in a proceeding in bank- 
 ruptcy should state wherein such statement 
 is false and incorrect : United States v. Mor- 
 gan, Mor., 341. 
 
 525. An indictment charging perjury in 
 testifying before a grand jury, and alleging 
 that they were investigating a specified 
 charge against a pai'ty named ; that they had 
 authority to investigate such charge, and 
 that the matters sworn to by the defendant 
 (particularly stated and their falsity charged) 
 were material in that investigation, held 
 
 sufficient. It is not necessary in such a case 
 to allege that the party charged with the of- 
 fense under investigation by the grand jury 
 was or was not guilty thereof, in* order to 
 state the facts constituting such offense: 
 State V. Sohill, 37-263. 
 
 526. In an indictment for perjury, it is not 
 necessary nor usual to aver that the court 
 ti-ying the case in which the perjury was 
 committed had jurisdiction of such acts. It 
 is sufficient to aver that the issue was dtdy 
 joined in such court which came on for trial 
 in due form Of law: State v. Newton, 1 G. 
 Gr., 160. 
 
 527. By statute (Code, § 4313), it is suffi- 
 cient to set forth the substance of the oCfensa 
 charged and before what court the oath was 
 taken, averring such court to have f uU power 
 to administer the same, etc. : Ibid. 
 
 628. It is sufficient to charge that defendant 
 was duly sworn before a court having author- 
 ity, etc., and it is not necessary to allege that 
 the oath was administered by any one : State 
 V. aHagan, 38-504. 
 
 529. But an indictment not averring that 
 the court or person before whom the oath 
 was taken had authoi-ity to administer the 
 same, is not sufficient: State v. NieJeerson, 
 46-447. 
 
 530. An indictment for perjury is bad 
 which alleges that the oath was administered 
 by one not clothed with authority to admin- 
 ister it : State v. Phippen, 63-54. 
 
 531. Therefore where the indictment 
 charged that the oath was administered by 
 a certain person as an officer, but at a time 
 which by law was prior to the time when he • 
 was authorized to enter upon the discharge 
 of his duties, held, that the indictment was 
 subject to demurrer : Ibid. 
 
 532. It is necessary to aver the jurisdiction 
 and authority of the officer before whom the 
 oath was taken to administer the oath, but 
 this may be done by express averment that 
 the officer had such right or by setting out 
 such facts as make it judicially to appear 
 that he had such authority and jurisdiction. 
 Under the averment that he was authorized 
 and empowered by law to administer the 
 oath, the facts essential to his jurisdiction 
 and authority to administer it may be 
 shown : State v. Cunningham, 06-94. 
 
 533. An indictment for perjury need not 
 
440 
 
 CRIMINAL LAW, II, 5, a, b. c. 
 
 Perjury. — Compounding felonies. — Eesisting officers. 
 
 charge tliat the prisoner knew the falsity of 
 the matter sworn to, unless the assignment 
 of perjury is upon a statement of the accused 
 as to his'belief : State v. Raymond, 30-583. 
 
 634. Viiriaiice: Wliere the indictment 
 charged that defendant testified that he saw 
 M. enter upon premises of '"Jason P." and 
 saw him ' ' getting and carrying away " corn 
 therefrom, while the negative averment was 
 that defendant did not see M. enter the prem- 
 ises of said " Joseph P." nor see him " gather 
 and carry away " said corn, held, that the 
 substitution of Joseph for Jason was cleai'lya 
 clerical error, not affecting the substantial 
 rights of the party, and that the effect of 
 " gather " was, in tlie connection used, the 
 equivalent of the word " getting:" Ibid. 
 
 535. Knowledge: Under a statute defin- 
 ing perjury as " wilfully and corruptly depos- 
 ing, affirming or declaring any matter to be 
 fact, knowing the same to be false, or deny- 
 ing any matter to be fact knowing the same 
 to be- true," lieXd, that an indictment was not 
 Bufflcient which omitted to charge such 
 knowledge : State v. Morse, 1 G. Gr. , 503. 
 
 5 J 6. It should be clearly and distinctly 
 averred in the indictment that defendant 
 swore " falsely," that word being used in the 
 statutory definition : State v. Nickerson, 46- 
 447. 
 
 637. An indictment for perjury which 
 charged that defendant at a certain time 
 testified to certain matters whereas he "did 
 know " they were false, held, by fair con- 
 struction, to charge knowledge at the time 
 defendant testified and to be sufficient in 
 that respect : State v. Wood, 17-18. 
 
 538. Advice of cauusel: In a prosecution 
 for perjury, it being material to determine 
 whether the testimony given was wilfully 
 false, the fact that advice of counsel was 
 taken by defendant as to the facts about 
 which he testified is material: State v. 
 McKinney, 43-305. 
 
 539. Evidence: It is not necessary that 
 there be two witnesses to the giving of testi- 
 mony upon which the perjury is assigned, 
 but only as to its falsity : State v. Wood, 17-18. 
 
 540. The evidence of one witness as to the 
 falsity of the matter sworn to, supported by 
 evidence of strong corroborating circum- 
 starnes, is sufiijient to warrant a conviction: 
 Slate V. Raymond, 20-583, 
 
 541. While the jury cannot consider any 
 other perjury than that assigned in the in- 
 dictment for the purpose of determining 
 defendant's guilt as to such other perjury, yet 
 when the evidencS thereof is legitimately 
 brought out, and relates to the subject-matter 
 of the perjury charged, it may be considered 
 in determining defendant's corrupt intent: 
 Ibid. 
 
 b. Compounding felonies. 
 
 542. If a person corruptly exacts a consid- 
 eration from another for an agreement not 
 to prosecute, he is guilty of compounding, 
 although he took such consideration for the 
 benefit of another : State v. Ruihven, 58-121, 
 
 543. The fact that a person guilty of the 
 crime of compounding a felony is an officer, 
 and therefore punishable as such under other 
 statutory provisions, does not exempt him 
 from tlie higher punishment prescribed for 
 the compounding : Ibid. 
 
 544. A contract entered into for the com- 
 pounding of a felony is void, and the law will 
 not afford either party thereto affirmative re- 
 lief: Allison V. Hess, 38-388. 
 
 545. An instrument based upon an agree- 
 ment not to prosecute for a felony is void : 
 Peed V. McKee, 43-689. 
 
 Further as to contracts for compounding 
 felonies, see Contracts, §§ 354, 355. 
 
 546. A delivery of a forged note to the 
 forger on payment thereof by him which he is 
 authorized to make, although made with the 
 intent of enabling the party to destroy or 
 suppress such paper and thereby to hinder 
 and prevent a prosecution for the forgery, 
 does not constitute the offense of compound- 
 ing: Deere v. Wolff, 65-33. 
 
 0. Eesisting officers; assisting prison- 
 ers to escape. 
 
 547. Besistiiig service of process: Itisno 
 
 defense, in a prosecution for resisting an offi- 
 cer (under Code, § 3960), that the process 
 under which he acts is irregular or defective, 
 if it is one that the magistrate has authority 
 to issue : State v. Foster, 10-435. 
 
 548. It will be presumed that the officer 
 was proceeding to execute the process in a 
 proper manner, and the indictment need not 
 set forth the acts showing that he complied 
 
CRIMINAL LAW, II, 5, d; 6, a, b; 7, a. 
 
 441 
 
 Offenses against right of suffrage. — Against chastity, etc. 
 
 with the requisites of the statute : State v. 
 Freeman, 8-428. 
 
 640. The officers contemplated are those 
 only who are authorized to execute legal 
 writs, orders, etc., and resistance to a road 
 supervisor engaged in removing obstructions 
 from a public road in his district is not within 
 this section : State v. Putnam, 35-561. 
 
 550. Under a statute providing for the 
 punishment of any person resisting an offi- 
 cer in executing process, held, that one who 
 resisted a peace officer in making an aiTest 
 without a warrant was not punishable : State 
 V. Lovell, 23-304. (But the statute now pro- 
 vides otherwise : Code, § 8960.) 
 
 551. One who resists an officer in making 
 arrest of another cannot justify such resist- 
 ance on the ground that the person to be 
 arrested was not guilty: Montgomery v. 
 Sutton, 67-497. 
 
 552. A receiver properly appointed and di- 
 rected by the court to take possession of 
 property is an officer within the meaning of 
 the statutory provision, and resistance to 
 him in an attempt to take such possession 
 is a crime under the statute : State v. Rivers, 
 66-653. 
 
 553. Assisting a prisoner to escape from 
 an officer having him in charge under a 
 warrant issued by a magistrate for threaten- 
 ing to commit a public ofifeuse is a crime un- 
 der the statute. Whether the prisoner had 
 in fact threatened to commit the offense as 
 charged in the warrant is immaterial : State 
 V. Bates, 23-96. 
 
 d. Wrongfully acting as officer. 
 
 554. Falsely assuming to be officer: 
 
 Where a constable who was re-elected pro- 
 ceeded to perform the duties of his office 
 without qualifying anew as required by 
 statute, held, that he was not guilty of the 
 crime of falsely assuming to be an officer: 
 State V. Bates, 23-96. 
 
 555. Exercising office without authority: 
 A constable may be guilty of this offense : 
 State V. Bevans, 37-178. 
 
 556. False entries by officer: It is not 
 necessary in charging this offense to charge 
 an intent to defraud any particular person : 
 State V. Morse, 52-509. 
 
 557. Illegal fees: Any contract for higher 
 fees than those provided by law or for an 
 
 amount which might prove to be higher 
 would be void : Oilman v. Des Moiii£S Val- 
 ley B. Co., 40-200. 
 
 6. Offenses against right of suffrage. 
 
 a. Brihery of electors. 
 
 558. It does not constitute bribery at an 
 election to relocate a county seat, for persons 
 interested in the location at a particular place 
 to agree to give certain facilities for the con- 
 venience of the whole county, such as offer- 
 ing a building for courts and officers, con- 
 veying real estate to the county, paying 
 money toward the erection of a bridge, sub- 
 scribing toward a high school, etc. . Dishon 
 V. Smith, 10-212 ; Hawes v. Miller, 56-395. 
 
 559. A promise by a candidate to pay into 
 the public treasury, if elected, a part or all 
 of his compensation, is an offer of a bribe to 
 electors, and disqualifies the person making 
 it, if elected, for holding the office; Car- 
 rothers v. Russell, 53-346. 
 
 b. Illegal voting. 
 
 560. In an indictment for this offense, it 
 is not necessary to show that the election 
 was held by the proper and legal officers, or 
 to state the manner in which defendant was 
 disqualified : State v. Douglass, 7-413, 
 
 561. It is no defense in a prosecution for 
 illegal voting that defendant consulted 
 others (not persons leai-ned in law) as to his 
 right to vote, and was advised that he was 
 qualified: State v. Sheeley, 15-404, 
 
 563. Voting in a township other than that 
 of the voter's residence is an offense under 
 the statute, and it is not necessary to charge 
 that accused voted for or against any one. 
 The casting of a ballot being proved, it will 
 be presumed that it designated the name of 
 some person for some office: State v. Min- 
 nick, 15-128. 
 
 7. Offenses against chastity, morality 
 
 and decency. 
 
 a. Seduction. 
 
 As to civil action for Seduction, see that 
 title. 
 
 563. What const itntes: Mere unlawful 
 sexual commerce for a consideration paid is 
 
44:2 
 
 CRIMINAL liAW, II, 7, a. 
 
 Seduction. 
 
 not seduction. There must be some artifice 
 or false promise by whicli the virtuous female 
 is induced to surrender her person. But the 
 allegations in the indictment in a particular 
 case, of representations as to the innocence 
 of the act and promises of presents, etc., held 
 sufficient on demurrer: State v. Fitzgerald, 
 63-2C8. 
 
 564. To "debauch" implies to "have car- 
 nal knowledge of" {arguendo}: Wood v. 
 Mathews, 47-409. 
 
 505. Where the evidence fails to show arti- 
 fice, promise, flattery, deception, or the like, 
 it will not be sufficient to sustain a convic- 
 tion : State v. Crawford, 34-40. 
 
 5C6. An indiolniPiit charging that defend- 
 ant seduced and debauched, etc., etc., is suf- 
 ficient, without charging the facts as to the 
 means made use of to accomplish such end : 
 State V. Curran, 51-112; State v. Conkright, 
 58-338. 
 
 5(>7. Evidence: The exact amount or kind 
 ■of seductive arts necessary to establish the 
 offense cannot be defined. Every case must 
 depend upon its own own peculiar circum- 
 stances, together with the conditions in life, 
 advantages, age and intelligence of the par- 
 ties : State v. Higdon, 32-262. 
 
 5S8. It is not necessary that the false 
 promises or Seductive arts be reasonable in 
 their character and likely to have been relied 
 upon by the prosecutrix ; but the fact that 
 they were extraordinary and made by a per- 
 son who, to the knowledge of the prosecutrix, 
 was not capable of performing them, should 
 be considered by the jury in determining 
 whether they were sufficient; State v. 
 Groovie, 10-308. 
 
 569. The fact that false promises of mar- 
 riage were made at the time, with intent to 
 break them, would be immaterial. Such 
 false promises of marriage would be suffi- 
 cient : State v. Prizer, 49-531. 
 
 570. To warrant a conviction of defendant 
 Tipon the evidence of prosecutrix, there 
 should not be any strained construction put 
 upon her language in order to sustain the 
 Terdict. It is to be expected that she should, 
 so far as possible, shield herself and cast the 
 blame upon defendant. Therefore, in a pai-- 
 ticular case, a conviction was reversed on 
 the ground that the evidence of prosecutrix 
 did not, by fan' and reasonable construction, 
 
 show any arts, false promises, etc. ; State v. 
 Haven, 43-181. 
 
 571. Where, in a prosecution for seduc- 
 tion, prosecutrix testified that she resisted, 
 and defendant overcame such resistance by 
 force, held, that the coui-t should have in- 
 structed the jury that, if they found such 
 to be the fact, defendant was entitled to an 
 acquittal, the crime under such facts being 
 rape, and not seduction : State v. Lewis, 4^ 
 578. 
 
 572. In a particular case, held, that it suffi- 
 ciently appeared from the evidence that 
 prosecutrix was an unmarried woman; also 
 that the seductive arts were such as were 
 sufficient to constitute the crime, being 
 promises to marry, etc. ; also, that the cor- 
 roboration was sufficient: State v. Heather- 
 ton, 60-175. 
 
 573. Where it appeared that defendant 
 was a suitor of prosecutrix before and for some 
 time after the illicit intercourse, held, that 
 his conduct during the entire time might be 
 inquired into in determining whether her 
 consent was gained by seductive means: 
 State V. Curran, 51-112. 
 
 574. Previously chaste character of 
 prosecutrix: The word character as used in 
 the statute defining the crime as the seduction 
 of any unmarried woman "of previously 
 chaste character " is used in its true sense as 
 distinguished from reputation, but a fema/le 
 may be of unchaste character without being 
 guilty of any act of sexual intercourse. Ob- 
 scenity of language, indecency of conduct 
 and undue familiarity with men may serve 
 to indicate the true character. It is for the 
 jury to decide, under all the circumstances, 
 as to the character of the prosecutrix : Andre 
 V. State, 5-389 ; Boah v. State, 5-430. 
 
 575. A female who has been unchaste may 
 reform and acquire a chaste character, such 
 as is referred to in the statute : State v. Car- 
 ran, 18-372. 
 
 676. Evidence that prosecutrix has a bad 
 reputation for chastity is not admissible, but 
 evidence that her reputation in that respect 
 is good may be received in i-ebuttal of evi- 
 dence tending to prove acts of lewdcess: 
 State V. Prizer, 49-531; State v. Shean, 
 32-88. 
 
 577. Proof of unchaste conduct on the part 
 of prosecutrix just prior to the alleged seduo 
 
CRIMINAL LAW, II, 7, a. 
 
 443 
 
 Seduction. 
 
 tion would entitle defendant to acquittal; 
 therefore, an instruction that proof of such 
 conduct should be considered against prose- 
 cutrix, held erroneous, in that it did not go 
 far enough in stating the effect of such con- 
 duct: State V. Carr, 60-453. 
 
 678. Where the woman is examined as a 
 witness to prove the seduction, she may, on 
 cross-examination, be asked as to matters 
 which would show a want of chastity pre- 
 vious to such seduction. The question of 
 chastity is directly in issue : State v. Suther- 
 land, 30-570. 
 
 579. Instruction as to effect of proof of im- 
 proper liberties allowed to others than de- 
 fendant, prior to the alleged crime, held 
 misleading, in that the meaning of such term 
 was left ambiguous : State v. Carr, 60-453. 
 
 580. Evidence of improper conduct of 
 prosecutrix occurring eight years before the 
 trial and when she was but fourteen years of 
 age, held properly excluded : State v. Dunn, 
 53-526. 
 
 581. Presumption : The previous chaste 
 character of the prosecutrix is presumed, and 
 the onus is upon defendant to overcome such 
 presumption by preponderance of evidence : 
 State V. Wells, 48-671 ; State v. Higdon, 33- 
 363; Andre v. State, 5-889. 
 
 582. Such presumption may be rebutted 
 by proven or admitted facts or circumstances 
 in the case : State v. Bowman, 45-418. 
 
 583. The presumption in favor of the chas- 
 tity of the prosecutrix is not a presumption 
 against the innocence of defendant. He is pre- 
 sumed innocent of the fact, but the presump- 
 tion is also entertained in favor of the recti- 
 tude of her character : Andre v. State, 5-389. 
 
 584. An instruction that the presumption 
 of chastity might be overcome by proof of 
 wantonness or indiscretion indicating an un- 
 chaste character, but which made no refer- 
 ence to other matters which might indicate 
 unchastity, held, not erroneous where there 
 was no evidence of other facts indicating 
 unchastity : State v. Bell, 49-440. 
 
 585. As to the presumption of chastity in 
 a civil action for damages and evidence to 
 overcome it, see West v. Druff, 55-335. 
 
 58C. Only the previous character is put 
 in issue, and all evidence of improper conduct 
 after the time of seduction should be ex- 
 cluded: State V. Wells, 48-671. 
 
 587. Questions as to chastity must clearly 
 refer to a time previous to the seduction: 
 State V. Deitriek, 51-467. 
 
 588. Previously chaste character is not es- 
 sential in a civil action by a parent for se- 
 duction of a minor daughter: Updegraffv. 
 Bennett, 8-73. 
 
 589. Corroboration : Under the statutory 
 provision (Code, § 4560) requiring that in 
 prosecutions for seduction the testimony of 
 the person injured must be corroborated by 
 other evidence tending to connect defendant 
 with the commission of the offense in order 
 to warrant conviction, proof of courtship and 
 attendant circumstances may amount to 
 sufficient corroboration: State v. Wells, 48- 
 671; State V. Curran, 51-113; Stevenson v. 
 Belknap, 6-97, 103. 
 
 590. The corroborating evidence should 
 not be confined to the fact of illicit inter- 
 course alone, but facts showing intimacy, op- 
 portunity and inducement may be proven 
 for that purpose : Andre v. State, 5-389. 
 
 591. The mere proof of acquaintance and 
 opportunity are not sufficient. The corrob- 
 orating evidence must be such as to connect 
 defendant with the commission of the of- 
 fense: State V. Painter, 50-317; State v. 
 Smith, 54-743 ; State v. Araah, 55-358. 
 
 592. A fact" testified to by the prosecutrix 
 alone cannot be considered as sufficient cor- 
 roboration of her other testimony: State v. 
 Kingsley, 39-439. 
 
 593. Corroboration in particular cases held 
 sufficient: State v. Shean, 33-88; State v. 
 Fitzgerald, 63-368. 
 
 594. The court is to determine whether 
 evidence is corroborative, that is, whether it 
 is competent, and the jury is to pass upon 
 the credibiUty of the corroborating witnesses, 
 and the weight of their testimony. An in- 
 struction to the effect that the jury were to 
 determine whether the testimony of the pros- 
 ecutrix was sufficiently corroborated, etc., 
 held correct: State v. Bell, 49-440. 
 
 Corroboration of the testimony of prosecu- 
 trix is also required in a prosecution for rape: 
 See supra, g§ 330-223. 
 
 595. The rule requiring con'oboration of 
 the testimony of the injured party is not ap- 
 plicable in bastardy proceedings to charge 
 the putative father with the support of the 
 child: State V. McGlothlai, 56-544. 
 
444 
 
 CRIMINAL LAW, II, 7, b, c. 
 
 Enticing away female child; defilement. — Adultery. 
 
 596. Resenibliince of child: The resem- 
 blance of an infant three months old to its 
 father is too indefinite and uncertain to con- 
 stitute evidence of paternity, and it is error in 
 a prosecution for seduction to allow a child of 
 that age, claimed to be the result of the con- 
 nection, to be shown to the jury. (Explain- 
 ing Stumm V. Hummel, 39-478): State v. 
 Danforth, 48-43. 
 
 597. But this rule is not applicable in case 
 of a cliild two years old ; and held, in a bas- 
 tardy case, that a child of that age might be 
 shown to the jury, and its family resemblance, 
 if any, to defendant considered by them as 
 tending to prove that defendant was its 
 father: State v. Smith, 54^104. 
 
 698. Cffiir to compromise: Evidence that 
 prosecutrix, after the commencement of the 
 prosecution, offered to settle the case for a 
 sum of money, held incompetent: State v. 
 Deitriek, 51-467. 
 
 599. Marriiige a bar: Under the statute 
 providing that marriage of defendant with 
 the person injured should bar the prosecution 
 for seduction (Code, § 3838), held, that such 
 a marriage is encouraged by the law, and that 
 contracts entered into in contemplation 
 thereof are not invalid as being made under 
 duress, and will be upheld: Armstrong v. 
 Lester, 43-159. 
 
 b. Enticing away female child; de- 
 filement. 
 
 600. Enticing away: Under a statute mak- 
 ing it a crime to entice away an unmarried 
 female under the age of fifteen years, from 
 her pai-ents, guardian or other person having 
 legal charge of her, for the purpose of pros- 
 titution (Code, § 3865), held, that the fact 
 that defendant believed and had good reason 
 to believe that the female was over the age 
 of fifteen years constituted no defense, if 
 she was in fact under that age : State v. 
 Ruhl, 8-447 : and see State v. Newton, 44-45. 
 
 601. If the parents are dead and no 
 guardian has been appointed, the persons 
 •with whom the female resides as a member 
 of the family and who have her wholly under 
 their care and protection would be the per- 
 sons having " the legal charge of her person." 
 State V. Ruhl, 8^47. 
 
 G02. It is not sufficient to constitute an 
 
 offense under this section that the accused 
 entice away the female for his own carnal 
 enjoyment, and such enjoyment would not 
 contrtute prostitution : Ibid. 
 
 603. Defilement: No particular amount of 
 force is necessary to constitute the offense of 
 defilement under the statute (Code, § 3862), 
 and it was probably intended to cover cases 
 in which there Is no force, excepting that 
 which is constructive, and in which the act 
 is accomplished principally by menace or 
 duress, acting to subdue the will ; but it con- 
 templates at least an act against the will. 
 The defendant is not required to show an 
 affirmative act of consent to make out a 
 defense : Pollard v. State, 2-567. 
 
 c. Adulter!/. 
 
 As a ground of DivoECE, see that title. 
 
 604. Void divorce: Where a decree of 
 divorce is void for want of jurisdiction, it 
 will not bar a prosecution for adultery : State 
 V. Fleak, 5^429. 
 
 005. Where a husband procured a divorce 
 and remarried, but subsequently the decree 
 of divorce was set aside and declared void at 
 the suit of the wife on the ground that it was 
 procured by fraud, held, that the divorce was 
 no defense in a prosecution for adultery com- 
 mitted in cohabiting with the second wife : 
 State V. Whitcomb, 52-85. 
 
 606. An eri'oneous belief of the validity of 
 a divorce will not constitute a defense in a 
 prosecution for adultery committed in a sec- 
 ond marriage : Ibid. 
 
 607. Connection by force: The act may 
 constitute adultery as to the man, although 
 as to the woman it is effected by force and 
 against her will: State v. Donovan, 61-278. 
 
 608. To constitute adultery on the part of 
 the man, the consent of the woman need not 
 be established. If willingly done on his part, 
 the crime is complete : State v. Sanders, 30- 
 582. 
 
 609. Commencement of prosecution by 
 husband or wife: Under the statute (Code, 
 § 4008) providing that no prosecution for 
 adultery can be commenced but upon the 
 complaint of the husband or wife, it is suffi- 
 cient if the prosecution is commenced by the 
 husband or wife. It may be continued with- 
 out further co-operation on the part of such 
 party : State v. Baldy, 17-39. 
 
CRIMINAL LAW, II, 7, c. 
 
 44:5 
 
 Adultery. 
 
 GIO. Where the wife instituted the pro- 
 ceedings before an examining magistrate, in 
 which the defendant was held to answer, 
 but did not appear before the grand jury or 
 otherwise in the further prosecution of the 
 case, held, that the prosecution was suffi- 
 ciently commenced upon the complaint of 
 the wife: State v. Dingee, 17-233. 
 
 Cll. An unmarried pei'son may be guilty 
 of the crime of adultery, and complaint 
 against such person may be made by the hus- 
 band or wife of the man-ied party, although 
 such married paity is not prosecuted : State 
 V. Wilson, 22-364. 
 
 61-. The appearance of the wife before the 
 grand jury, in response to a subpoena, and 
 giving testimony against the husband with- 
 out intending to prefer a charge, but sup- 
 posing she was required to do so, would not 
 constitute a complaint by the wife : State v. 
 Donovan, 61-278. 
 
 013. The prosecution may be sufficiently 
 commenced by the husband or wife, either 
 by making complaint before the grand jury 
 or by filing a preliminary information before 
 a magistrate. If commenced by filing inf oi- 
 mation it is not necessary that the husband 
 or wife appear fiu-ther in the proceedings. 
 It is not necessary that the name of the hus- 
 band or wife be indorsed on the indictment 
 as private prosecutor : State v. Briggs, 68- 
 416. 
 
 614. The words "husband or wife," as 
 used in the statutory provision above referred 
 to, refer to and mean the spouse of the per- 
 son charged with the offense : Bush v. Work- 
 man, 64-203. 
 
 Olo. An averment in the indictment that 
 the prosecution was commenced by the hus- 
 band or wife is not conclusive, and if not so 
 commenced, advantage of that fact may be 
 taken by defendant : State v. Roth, 17-336. 
 
 61(i. It is essential that the state prove 
 that the prosecution was commenced by the 
 husband or wife. The averment in the in- 
 dictment that it was so commenced will not 
 be presumptive proof thereof : State v. Henke, 
 58-457. 
 
 617. The allegation that the prosecution 
 was commenced under complaint of the hus- 
 band or wife must be proven by the state 
 like other material averments of the indict- 
 ment, and is to be determined by the jury 
 
 upon the evidence given at the trial, and not 
 by the court on affidavits upon a motion to 
 dismiss the prosecution. The allegation of 
 the fact in the indictment is sufficient to raise 
 the question before the jury: State v. Briggs, 
 68-416. 
 
 618. The fact that the prosecution is com- 
 menced by the husband or wife does not 
 enter into or constitute any of the facts 
 which go to make up the crime, and there- 
 fore, although such fact must be proven, it 
 is not necessary that it be established beyond 
 a reasonable doubt : State v. Donovan, 61-278. 
 
 619. Failure to instruct the jury as to the 
 necessity of the prosecution being com- 
 menced by the husband or wife is not error, 
 where the fact appears without dispute in 
 the evidence that the prosecution was so 
 commenced and such instruction is not asked 
 by the defendant : State v. Hazen, 39-G48. 
 
 C20. Indictment: As any act of adultery 
 committed between the parties within the 
 statutory period of limitation might be 
 proven under an indictment charging one 
 such act, the allegation in the indictment of 
 other acts committed on divers other days 
 may be rejected as surplusage, and the in- 
 dictment will not be bad: State v. Bnggs, 
 68-416. 
 
 621. The better practice is to indict the 
 parties guilty of adultery separately, al- 
 though they maybe indicted jointly: State 
 V. Dingee, 17-233. 
 
 622. Evident e: The provision that the 
 prosecution can be commenced only by the 
 husband or wife leads to the inference that 
 the offense is a crime by the husband or wife • 
 against the other rather than against society 
 in general, and upon such prosecution the 
 one may be a witness against the other : State 
 V. Bennett, 31-24; State v. Hazen, 39-648. 
 
 623. In a prosecution for adultery, record 
 proof of marriage is not indispensable. It 
 may be established by the testimony of the 
 husband or wife : State v. Wilson, 22-364. 
 
 624. Admissions of defendant as to the 
 fact of marriage, when voluntary, and not of 
 the character of confessions exacted by im- 
 proper inducements, are admissible as evi- 
 dence of the marriage : State v. Sanders, 30- 
 582. 
 
 Further as to evidence of SIaeeiage, see 
 that title. 
 
440 
 
 CRIMINAL LAW, U, 7, d. 
 
 Bigamy. 
 
 625. Aflmissions of the woman with whom 
 the husband is charged to have committed 
 the crime are not competent evidence: State 
 V. McGuire, 50-153. 
 
 626. The provisions of Code, § 4010, as to 
 the presumption arising from absence, in the 
 case of a prosecution for bigamy, do not 
 apply as against a defendant in a prosecution 
 for adultery to establish the validity of his 
 marriage with a wife who had previously 
 been married : State v. Henke, 58-457. 
 
 627. Different acts: Where but one act of 
 adultery is charged and evidence as to differ- 
 ent acts is introduced, but the prosecution 
 after the close>of the evidence elects to rely 
 upon one particular act ref eiTcd to in the ev- 
 idence, such election withdraws from the 
 jury the evidence as to the other acts and 
 cures any errors which may have been com- 
 mitted in admitting evidence with reference 
 thereto : State v. Donovan, 61-378. 
 
 628. Evidence of other acts of adultery 
 committed between the same parties prior 
 to the statutory period of limitation or in 
 another county than that in which the indict- 
 ment is found are admissible to show the 
 disposition of the parties, and may be taken, 
 in connection with opportunity to commit 
 the crime within the statutory period and 
 within the jurisdiction of the court, as evi- 
 dence that the crime was then committed: 
 State V. Briggs, 68-416. 
 
 d. Bigamy. 
 
 629. Contiiining to cohabit within the 
 'state after a bigamous marriage is a crime by 
 statute (Code, § 4009), whether the marriage 
 was consummated within or without the 
 state: State v. Sloan, 55-317; State vJNadal, 
 69-478. 
 
 630. Defendant may be prosecuted for con- 
 tinuing to cohabit within the state, although 
 a prosecution for the bigamous marriage is 
 barred : State v. Sloan, 55-317. 
 
 631. Venue: The prosecution may be had 
 in any county where the defendant unlaw- 
 fully cohabits with a second wife, although 
 the marriage was consummated in another 
 county: State v. Hughes, 58-165. 
 
 632. Indictment: An indictment for this 
 crime, stating that the date of the lawful 
 marriage was to the grand jury unknown, 
 
 that it took place in Illinois, and that at the 
 time of the second marriage the former 
 marriage relation still existed, held suffi- 
 cient as against the objections, first, that it 
 did not state the date of the first marriage; 
 second, that it did not state that such mar- 
 riage was lawful and valid by the laws of 
 Illinois ; third, that it did not appear that the 
 lawful wife was still living at the date of the 
 second marriage: Ihid. 
 
 633. The indictment need not negative the 
 facts of absence, etc., which are by another 
 section of the statute made a defense : State 
 V. Williams, 30-98. 
 
 634. Evidence: The testimony of a wit- 
 ness who saw the marriage is sufficient with- 
 out record evidence thereof : Ibid. ; State v. 
 Hughes, 58-165. 
 
 635. While admissions of marriage or co- 
 habitation will not authorize conviction, yet, 
 when the evidence shows a long recognition 
 by defendant of the woman as his wife, and 
 actual marriage, proof of admission of mar- 
 riage and cohabitation may be shown : State 
 V. Nadal, 69-478. 
 
 636. The testimony of either husband or 
 wife, together with proof of continued co- 
 habitation as husband and wife, raises such 
 a presumption of an actual legal fact as to 
 make it incumbent upon the defendant to 
 rebut such presumption : Ihid. 
 
 637. In a prosecution for bigamy in co- 
 habiting in this state after a void marriage in 
 another state, it is not necessary to prove the 
 marriage to have been in accordance with 
 the laws of such state, if it would have been 
 sufficient under the laws of this state, there 
 being no evidence that the laws of the state 
 where it was celebrated are different from 
 those of this state : Ihid. 
 
 638. Under an indictment alleging the 
 celebration of the void marriage at a partic- 
 ular place, evidence will be sufficient which 
 shows the celebration of the marriage any- 
 where within the same state : Ibid. 
 
 639. In a prosecution for bigamy in co- 
 habiting with a second wife, evidence of the 
 bigamous marriage in another county is 
 proper, not to show a crime in that county, 
 but to fix the nature of the subsequent co- 
 habitation: State V. Hughes, 58-165. 
 
 640. It seems that the fact that defendant 
 acted under reputable legal advice la con- 
 
CRIMINAL LAW, II, 7, e, f, g, h. 
 
 447 
 
 Incest. — Abortion. — Exposing child. — Prostitution, etc. 
 
 tractiiig the second marriage would be no 
 defense: Ibid. 
 
 641. The crime is one by the husband or 
 wife against the other within the statutory 
 provision (Code, § 3641) allowing the hus- 
 band or wife to be a witness against the 
 other in such cases: State v. Sloan, 55-217; 
 State V. Hughes, 58-165. 
 
 642. In a prosecution for bigamy, evidence 
 of lewdness on the part of the injured party 
 is incompetent : State v. Nodal, 69-478. 
 
 Further as to evidence of Marhiagb, see 
 that title. 
 
 e. Incest. 
 
 643. What constitutes: The marriage of 
 persons sustaining to each other any of the 
 degi-ees of relationship specified in the stat- 
 ute (Code, g 4030) is incest. Carnal knowl- 
 edge in such case need not be alleged or 
 shown : State v. Sehaunhurst, 84r-547. 
 
 644. The words brother and sister used in 
 the statute refer to illegitimate as well as to 
 legitimate children of the same parents : Ibid. 
 
 645. To constitute incest the parties must 
 have carnal knowledge of each other. A 
 woman who is ravished cannot be said to 
 have carnal knowledge of the man. Con- 
 nection between persons within the prohibited 
 degrees, consummated by force, is rape and 
 not incest : State v. Thomas, 53-314. 
 
 646. Under a statute providing that brother 
 and sister who, being of the age of sixteen 
 years or upwards, should have sexual inter- 
 course together, having a knowledge of their 
 consanguinity, should be guilty of incest, 
 held, that it was essential m order to consti- 
 tute the crime that both parties be over the 
 age specified: United States v. Hiler, Mor., 
 330. 
 
 647. Evidence: The register of marriages 
 is sufficient evidence of the incestuous mar- 
 riage : State v. Sehaunhurst, 34-547. 
 
 648. Admissions and declarations of the 
 parties are also admissible to show the fact 
 of marriage: Ibid. 
 
 Further as to evidence of Marriage, see 
 that title. 
 
 f. Abortion. 
 
 As to civil liability for, see Aboetion. 
 
 649. Wliat constitutes: Abortion is the 
 act of miscarriage and producing young be- 
 
 fore the natural time or before the foetus is 
 perfectly formed. It is not within the defini- 
 tion of murder and is not criminal unless ex- 
 pressly made so by statute: Abrams v. 
 Foshee, 3-274. 
 
 650. The crime of administering drugs, 
 etc. , with intent of procuring an abortion is 
 complete where the drugs are administered 
 with the intent specified, and the venue of 
 the crime is properly laid in the county in 
 which the medicine is thus administered, 
 although the miscarriage occurs in another 
 county: State v. Hollenbeck, 36-113. 
 
 661. It is not necessary to constitute the 
 crime that the woman should be quick with 
 child, nor, providing there is criminal intent, 
 is it necessary that the substance adminis- 
 tered should be such as would produce a mis- 
 carriage : State v. Fitzgerald, 49-260. 
 
 652. Under the provisions of the statute it 
 is not a crime for a woman to procure an 
 abortion on herself: Hatfield v. Gano, 15- 
 177. 
 
 653. Where death is caused in the procure- 
 ment of an abortion, it is error to instruct 
 the jury that defendant in a prosecution for 
 causing such death may be convicted of man- 
 slaughter. He will be guilty of murder in 
 the second degi-ee or nothing: State v. 
 Moore, 25-128. 
 
 g. JExjposing child. 
 
 654. The statute (Code, § 3870) providing 
 that if " the father and mother . . . ex- 
 pose" a child, etc., is to be consti-ued to 
 mean father or mother. , Either parent alone 
 may commit the crime : State v. Smith, 46- 
 670. 
 
 h. Prostitution and lewdness; Tceeping 
 or leasing houses of ill-fame. 
 
 655. What constitutes prostitution: It is 
 
 for the jury to say what acts are, under 
 the circumstances, sufficient to render a per- 
 son a prostitute, and it is not for the court to 
 instruct as to what sexual intercourse is or 
 is not sufficient to Establish the fact : State 
 V. Bice, 56-431. 
 
 656. Lewdness: Acts of private incon- 
 tinence are not sufficient to constitute lewd- 
 ness as defined by statute: State v. Marvin 
 13-499. 
 
448 
 
 CRIMINAL LAW, II, 7, h, i. 
 
 Houses of ill-fame. — Betting and gambling. 
 
 637. Occasional acts of sexual intercourse 
 in a secret manner between parties lining in 
 the relationship of master and servant may 
 not be sufficient alone to constitute the crime 
 of lewdness. But such acts and the birth of 
 a child may be shown as tending with other 
 circumstances to prove that the parties were 
 in fact living together as husband and wife: 
 State V. Kirlcpatrick, 63-554. 
 
 658. An indictment for lewdness should 
 charge that the parties were not married to 
 each other: State v. Clinch, 8-401. 
 
 659. Evidence that defendant in a prose- 
 cution for lewdness had a wife and children 
 whom he had deserted, held admissible: 
 State V. Lyon, 10-340. 
 
 680. Keeping honse of ill-faiae: Evidence 
 that the owner of a house kept as a house of 
 ill-fame by the tenant was in the habit of 
 spending a part of his time there, held insuffi- 
 cient to show that such owner was guilty as 
 a keeper of such house: State v. Pearsall, 
 43-630. 
 
 601. Insti'uctions to the effect that evi- 
 dence showing that defendant was keeping 
 a house and using it as his own, and exercis- 
 ing such control over it as men usually have 
 over their own houses, will authorize the jury 
 to find that defendant kept the house, and 
 that the jury might find that defendant had 
 knowledge of the character of the house and 
 assented thereto, from the publicity of the 
 lewd conduct carried on there and the public 
 reports of its ill-fame, and his knowledge of 
 such reports, as well as his personal conduct 
 and his conversation with inmates and visit- 
 ors, held proper : State v. Wells, 46-662. 
 
 662. An indictment against a person for 
 keeping a house of ill-fame is sufficient if it 
 charges the offense as committed within the 
 county. The house need not be more spe- 
 cffically described : State v. Shaw, 35-575. 
 
 663. If the facts constituting the offense 
 of keeping a house of ill-fame, as defined by 
 statute, be properly described in the indict- 
 ment, the fact that the term nuisance is 
 used to designate it will not invalidate the 
 indictment nor make it an indictment for 
 the offense of keeping a nuisance as defined 
 by statute : Ibid. 
 
 664. This offense is distinct from that of 
 nuisance consisting in keeping such a house, 
 in that, in the latter case, it must be to the 
 
 detriment of others: State v. Odell, 4&-75; 
 State V. Alderman, 40-375. 
 
 665. The previous conviction of keeping a 
 nuisance consisting in the keeping of a house 
 of ill-fame to the disturbance of othei-s vrill 
 not render a subsequent conviction for tlie 
 offense of keeping such a house a second con- 
 viction for that offense so as to warrant the 
 infliction of the penalty for a second convio- 
 tion : State v. Holmes, 56-588. 
 
 As to the crime of nuisance committed in 
 keeping a house of ill-fame, see infra, § 702. 
 
 666. Keputatioii .is evidence: The state 
 may prove the bad character of the house 
 by evidence of the bad character of the per- 
 sons resorting thereto, and of the inmates 
 thereof; but the general reputation of the 
 house itself should be excluded: State v. 
 Lyon, 39-379. 
 
 667. The fact that defendant is the keeper 
 of such a house cannot be proven by evi- 
 dence of common reputation as to his char- 
 acter: State V. Hand, 7-411. 
 
 668. Leasing house for purposes of pros- 
 titution: The various acts described by the 
 statute providing for the punishment of 
 leasing a house for purposes of prostitution 
 or lewdness, etc. (Code, § 4015), constitute 
 but one offense, and an indictment charging 
 all of them is not bad for duplicity : State v, 
 Abrahams, 6-117. 
 
 669. To render the defendant guilty of 
 knowingly permitting the use, something 
 more must be shown than his mere inactivity, 
 or failure to take steps to prevent such ille- 
 gal use. Some act or declaration showing 
 an affirmative assent must be shown: Ibid.; 
 Abrahams v. State, 4-541. 
 
 i. Betting and garnbling; heeping 
 garribling-house. 
 
 Gambling contracts void, see Contracts, 
 §§ 333-358. 
 
 670. Game of chance: A horse-race is not 
 a game of chance within the terms of a stat- 
 ute providing a punishment for betting upon 
 such games : Earless v. United States, Mor., 
 169. 
 
 671. The offering by an agricultural so- 
 ciety of a premium to the winner of a horse- 
 race, held under its auspices, does not con- 
 stitute the offense of making a bet or wager 
 
CRIMINAL LAW, II, 7, i, j ; 8. 
 
 M9 
 
 Gambling-houses. — Lotteries. — Nuisances. 
 
 for money, etc. : Delier v. Plymouth County 
 Agl. Society, 57-481. 
 
 672. Gambling and keeping: ganibling- 
 liouse: To constitute gambling within the 
 statutory provision for the punishment of 
 any person keeping a house or place resorted 
 to for the purpose of gambling, or permitting 
 any person in any Bouse or other place under 
 his control to play cards, etc., "or other 
 game for money or other thing" (Code, 
 § 4036), it is not necessary that the money or 
 " other thing " should be "putup." Playing 
 at a game with the understanding that the 
 loser shall pay for the drinks around, which 
 an-angement is carried out, is sufficient: 
 State V. Maurer, 7-406 ; State v. Cooster, 10- 
 453 ; State v. Leicht, 17-28 ; State v. Bishel, 
 39-43. 
 
 673. Playing at billiards or "pin pool" 
 with an agreement or understanding that 
 the losing party shall pay for the game is 
 gambling: State v. Book, 41-550; State v. 
 Miller, 53-154. 
 
 674. Whether the game played is one of 
 skill or one of chance is immaterial under 
 this statutory provision : State v. Miller, 53- 
 154. 
 
 675. But playing at cards for recreation or 
 amusement is not prohibited : State v. Leicht, 
 17-28. 
 
 676. It is not necessary that the place oc- 
 cupied be generally or habitually resorted to, 
 if it is kept for that purpose. One act of 
 gambling, as well as many, will complete the 
 offense : State v. Cooster, 10-453. 
 
 677. The offense of keeping a gambling- 
 house is as complete if the house is kept for 
 one day as if kept for a year. It does not 
 consist in causing or continuing a public 
 nuisance, as contemplated in other sections 
 of the statute providing for the punishment 
 of a person keeping a place where gambling, 
 etc., is resorted to, to the annoyance of 
 others. (Code, §4091): State v. Crogan, 8- 
 533. 
 
 678. An indictment substantially charging 
 that defendant did keep a house, etc., in 
 which he did permit divers persons, to the 
 
 .jurors unknown, to play at cards, etc., for 
 money, cigars, beer and other things, held 
 sufficient : State v. Kaufman, 59-273. 
 
 679. A charge that defendant keeps a 
 house resorted to, sufficiently charges intent 
 
 Vol. 1 — 39 
 
 and knowledge, and still more does the 
 charge that he permits, etc., gambling, imply 
 knowledge : State v. Cure, 7-479. 
 
 680. And an indictment charging that ac- 
 cused, being the keeper of a house resorted 
 to for the purpose of gambling, knowingly 
 and unlawfully did permit, etc., held suffi- 
 cient, although it would have been better to 
 have expressly charged that the house was 
 under the control of accused : State v. Mid- 
 dleton, 11-246. 
 
 681. The "keeping," etc., and the "per- 
 mitting," etc., constitute one and the same 
 offense, and an indictment charging them 
 both in separate counts is not objectionable 
 on the ground of duplicity : State v. Cooster, 
 10-453. 
 
 682. An indictment against a tavern- 
 keeper for suffering gaming in violation of 
 statute need not state the names of the per- 
 sons who played nor the sums of money for 
 which they played, nor the property lost or 
 won: Romp v. State, 3 G. Gr., 276. 
 
 j. Lotteries. 
 
 683. Under a statute (Code, § 4043) pro- 
 viding for the punishment of any person 
 making or establishing a lottery or selling 
 lottery tickets, etc., held, that a disposal of 
 lands by a scheme in which parties were to 
 buy tickets and draw for such land was a 
 lottery and that a contract of purchase thus 
 entered into was void : Guenther v. Dewein, 
 11-133. 
 
 8. Nuisances, including obstruction of 
 highways and railways and keep- 
 ing disorderly houses. 
 
 As to a civil action for damages for injury 
 from a Nuisance, see that title. 
 
 684. Public or private: While the acts 
 mentioned in the statute (Code, § 4089) are 
 each declared to be a nuisance, they are pub- 
 lic or private nuisances as they tend to the 
 public injury or only to the injury of private 
 individuals : State v. Close, 35-570. 
 
 685. The close proximity of a nuisance, 
 such as described by statute, to a public 
 highway, so as to affect those passing, would 
 constitute it a public nuisance. So would 
 causing the water of a mill-dam to become 
 
450 
 
 CRIMINAL LAW, II, 8. 
 
 Obstruction of highways and railways ; keeping disorderly houses. 
 
 corrupt and to overflow, thus rendering the 
 adjoining land marshy, etc., whereby the air 
 should become corrupt and infected : Ibid. 
 
 686. The punishment provided in Code, 
 § 4093, is applicable to public as well as pri- 
 vate nuisances embraced within the defini- 
 tion of § 4089 : State v. Raster, 35-321. 
 
 687. Obstructing highway: A party ob- 
 structing a highway, by fence or otherwise, 
 may be punished under this statutory pro- 
 vision, although the road supervisor might 
 under other provisions of the statute right- 
 fully remove the obstruction : State v. Berry, 
 12-58. 
 
 As to when shade trees will constitute an 
 obstruction to a highway and may be re- 
 moved, see Highways, §§ 136-138. 
 
 688. Platform scales erected in a public 
 street for private business may be removed 
 by order of the city council : Emerson v. Bab- 
 cock, 66-357. 
 
 689. It is not a punishable offense to ob- 
 struct a highway which, by reason of natural 
 obstacles, cannot be used by the pubho : State 
 V. ShinJcle, 40-131. 
 
 690. But if part of the line of road is trav- 
 eled, it would not excuse a party who ob- 
 structs it that another part was impassable 
 as laid out : State v. McGee, 40-595. 
 
 691. In prosecutions for obstructing a pub- 
 lic highway, the state is not confined to doc- 
 umentary proof of the festablishment thereof, 
 but may show the highway by proof of con- 
 sent and user, and the fact that the highway 
 is not of statutory width will be no defense : 
 State V. Robinson, 38-514. 
 
 692. A party failing to remove a fence 
 where a newly established highway crosses 
 his land is not liable to indictment for ob- 
 structing a highway, at least until after rea- 
 sonable notice by the supervisor to remove 
 the same: State v. Ratliff, 33-189. 
 
 693. Malice is not a necessary element of 
 the offense of obstructing a highway; intent 
 is only important to show whether it was 
 wilful or naerely accidental : State v. Gould, 
 40-373. 
 
 694. Where a highway is duly laid out, 
 the fact that it is not yet traveled will not 
 prevent the act of obstructing it from being 
 criminal: Harrow v. State, 1 G. Gr., 439. 
 
 695. Error in the description of the high- 
 way, so long as its identity is not doubtful, 
 
 will not vitiate a conviction for obstructing 
 it: Ibid. 
 
 696. Under an indictment for obstructing 
 a " county road," a road established by stat- 
 ute only can be shown. Evidence of a high- 
 way by use or prescription is hot admissible : 
 State V. Snyder, 35-208. 
 
 Further, see Highways,' §§ 135-141. 
 
 697. Defacing highway: No one has a 
 right to make a material change in a high- 
 way inconsistent with the plans of the road 
 supervisor. To do so will constitute a de- 
 facing of the highway within the meaning of 
 the statute (Code, § 39931) providing a pun- 
 ishment for such defacement. The judgment 
 of the supervisor must govern as to the 
 proper plan : State v. Hunter, 68-447. 
 
 698. Obstructing 'highway by railway 
 track: As a railroad company is allowed 
 (Code, § 1362) to temporarily obstruct a high- 
 way for the purpose of constructing its track, 
 an allegation in an indictment showing such 
 obstruction wiU not be sufficient to charge 
 a crime, without averments showing a violar 
 tion of the provisions of that section of the stat- 
 ute : State v. Chicago, B. & P. B. Co. , 63-508. 
 
 699. Obstructing railway track: In a 
 prosecution for obstructing the track of a 
 railway (Code, § 3990), it is not necessary to 
 allege or prove that the obstruction did actu- 
 ally obstruct and hinder trains: State v. 
 Clemens, 38-257. 
 
 700. It being found that defendant knew 
 the railroad was being used for the purpose 
 of carrying freight and passengers, and in- 
 tended to place the obstruction on the road, 
 malice will be implied: State v. Hessenkamp, 
 17-25. 
 
 701. The fact that the land where the ob- 
 structions were placed on the track belonged 
 to defendant, and the railroad company had 
 no right of way over it, or had violated the 
 covenants of its contract with respect thereto, 
 would be no defense in a prosecution under 
 this section: Ibid. 
 
 702. Keeping disorderly houses: "To the 
 disturbance of others " is the feature of the 
 offense of keeping a house of ill-fame, which 
 renders it a nuisance under Code, § 4091, and , 
 distinguishes such a case from the offense of 
 keeping such a house as defined by Code, 
 § 4018: State v. Alderman, 40-375; State v. 
 Odell, 4^-75. 
 
CRIMINAL LAW, II, 8. 
 
 451 
 
 KeepiHg disorderly houses ; illegal sale of liquors. 
 
 As to the offense of keeping houses of ill- 
 fame, see supra, §§ 660-665. 
 
 70S. Failure to use the words "to the 
 disturbance of others," in charging the keep- 
 ing of a house where drunkenness, etc., are 
 carried on, renders the indictment insuffi- 
 cient to charge a nuisance: State v. Dean, 
 44-648. 
 
 704. Although the quarreling, fighting, 
 etc., relied upon to show that the place 
 where they occurred was a nuisance, appears 
 to have taken place on the sidewalk in front 
 of, and not in, the house of defendant, yet if 
 it is the character of the house which attracts 
 the disorderly persons, the defendant is 
 guilty of keeping a nuisance : State v. Webb, 
 25-235. 
 
 705. Where defendant, at a farm-house, 
 kept and sold wine which was not drunk on 
 the premises by the persons buying it, but 
 upon the highway a half mile or more from 
 the house, resulting in riotous conduct, etc., 
 held, that the person keeping the house at 
 which the wine was sold was not guilty of 
 keeping a nuisance : State v. Dieffenbach, 47- 
 638. 
 
 706. A defendant may be convicted of 
 keeping a nuisance on proof that he kept a 
 place described in the indictment as a. brew- 
 ery and saloon where drinking, quarreling, 
 fighting and breaches of the peace were 
 carried on and by the defendant permitted 
 to he carried on, to the disturbance of others, 
 although there is no recurrence of such acts, 
 and this even though the indictment charges 
 such acts as occurring on more than one oc- 
 casion: State V. Pierce, 65-85. 
 
 707. The prosecution may show that drink- 
 ing, quarreling, etc., occurred at the place, but 
 without the building, if they occurred by 
 defendant's permission or where occasioned 
 by the business which he cairried on in the 
 building: Jbid. 
 
 708. Evidence is admissible to show that 
 the actions and appearance of persons im- 
 mediately after going from the place in- 
 dicated that they were intoxicated : Ibid. 
 
 709. A person is drunk in the legal sense 
 within the meaning of -the statute when he 
 is so far under the influence of intoxicating 
 liquors that his passions are visibly excited 
 or his judgment impaired : Ibid. « 
 
 710. A boat may be, within the meaninig 
 
 of the term, a house of ill-fame, as used in 
 defining acts constituting a nuisance : State 
 V. Mullen, 35-199. 
 
 711. An indictment charging all the of- 
 fenses mentioned by statute in the alternative 
 as constituting a nuisance is not objection- 
 able as charging more than one offense: 
 State V. Spurheek, 44^667. 
 
 712. The nuisance may be single, although 
 all the various acts which may constitute a 
 nuisance by Code, § 4091, are charged : Ibid. 
 
 713. So, an indictment charging the doing 
 of acts prohibited in the section last above 
 mentioned, and also acts declai-ed to be a nui- 
 sance in connection with the sale of intoxi- 
 cating liquors) is not bad for duplicity. Such 
 acts committed at one time constitute but 
 one nuisance, and could not be the basis of 
 separate indictments : State v. Dean, 44-648. 
 
 714. Intoxicating' liquors: The punish- 
 ment provided for the crime of nuisance is 
 to be applied to a person found guilty of that 
 offense under the statutory provisions with 
 reference to keeping a building, etc., where 
 intoxicating liquors are sold contrary to law : 
 State V. McGrew, 11-112 ; State v. Collins, 11- 
 141 ; State V. Schilling, 14-455 ; State v. Idttle, 
 42-51, 54; State v. Dean, 44-648. 
 
 715. A person keeping intoxicating liquors 
 for sale for a proper purpose will not be 
 guilty of the crime of nuisance on account of 
 unlawful sales made by a clerk without his 
 knowledge or authority: State v. Hayes, 
 67-27. 
 
 716. As the so-called prohibitory amend- 
 ment submitted to the people by the Nine- 
 teenth General Assembly was not properly 
 submitted, the act of selling beer which was 
 therein prohibited did not become a nuisance 
 within the general terms of the statute de- 
 scribing that offense : State v. Johnson, 61- 
 504. 
 
 See further. Intoxicating Liquors, V. 
 
 717. Public benefit no defense: A de- 
 fendant indicted for nuisance will not be 
 permitted to show that the public benefit re- 
 sulting from his act is equal to the public 
 inconvenience arising from it : State v. Kas- 
 ter, 35-221. 
 
 718. Evidence of offense not charged: 
 Under an indictment charging the use of 
 premises for the keeping of hogs, etc., occa- 
 sioning noxious exhalations, offensive emeUs, 
 
452 
 
 CRIMINAL LAW, II, 9, 10, 11. 
 
 Abating nuisances. — Misdemeanors. — Riots. — Police regulations. 
 
 etc., Tield, that evidence of noise made by the 
 animals at night, annoying persons living in 
 the vicinity, vyas receivable as part of the 
 facts connected with the nuisance, although 
 such disturbance could not be proved under 
 the allegation of " other nuisances " specified 
 in the indictment : Ibid. 
 
 719. Abatement: A petition asking the 
 abatement of a nuisance should be definite 
 enough to enable the court to identify with 
 certainty the obstruction to be removed: 
 Sloan V. Bebman, 66-81. 
 
 720. Where it was shown that the nuisance 
 was occasioned by the keeping of hogs within 
 certain pens, held, that it was not proper in 
 the abating of such nuisance to require the 
 removal of lumber and materials composing 
 the fence around such pens : State v. Kaster, 
 35-331. 
 
 721. The statutory provisions for the abate- 
 ment of the nuisance do not take away the 
 common law right of the person injured by 
 the erection of a mill-dam from abating it as 
 a private nuisance : State v. Moffett, 1 G. Gr., 
 247. 
 
 722. Punishment: The court may order a 
 defendant, fined under the statute providing 
 for the punishment of nuisances, to be im- 
 prisoned until the fine is paid, or imprisoned 
 at hard labor under general statutory provis- 
 ions: State V. Jordan, 89-387; State v. 
 Anwerda, 40-151. 
 
 9. Misdemeanors in general. 
 
 723. Under the statutory provision (Code, 
 § 3966) that when the performance of any 
 act is prohibited by statute, and no penalty 
 for the violation of such statute is imposed, 
 the doing of such act is a misdemeanor, pun- 
 ishable as elsewhere specified, held, that su- 
 pervisors violating the provisions of the 
 statute by voting to erect a public building 
 without submitting the question to vote, in a 
 case where such submission to vote of the 
 electors is required, were guilty of a misde- 
 meanor : State v. CorUee, 25-237. 
 
 10. Mots. 
 
 724. In order to constitute a riot it is nec- 
 essary that the persons implicated shall be 
 actually engaged in some physical act of yio- 
 J^cie : StXJit p. JJnitedBtatea, Hor., 143. 
 
 11. Police regulations. 
 
 735. Importing diseased sheep: Under a 
 statute prohibiting the importing of diseased 
 sheep (Code, §'4055), held, that a contract for 
 the sale of sheep having such disease as 
 specified by the statute could not be enforced 
 against the purchaser, even when he knew of 
 such disease before purchasing, the statute 
 being intended not for the protection of the 
 purchaser only, but of the public. But held, 
 that the statute would not apply where the 
 seller did not know that the disease with 
 which the sheep were inflicted was contag- 
 ious, and that in such case the contract could 
 be enforced : Caldwell v. Bridal, 48-15. 
 
 726. Running threshing machine with- 
 out boxing tumbling-rod: The statute 
 (Code, § 4064) providing a penalty for ran- 
 ning a threshing machine without having 
 the tumbling-rod boxed, etc., does not luake 
 a person guilty of such act absolutely liable 
 for damages resulting. Proof of running 
 a machine not secured as required estab- 
 lishes negligence, but the rule stUl applies 
 that contributory negligence on the part of 
 the person injured will defeat a recovery: 
 Reynolds v. Hindman, 32-146. 
 
 727. A person injured through a-violation 
 of this provision has a right of action, and 
 it is sufficient to allege the violation as the 
 basis of the right to recover, and as constitut- 
 ing the negligence complained of: Messenger 
 V. Pate, 42-443, 
 
 728. Where a contract was made for 
 threshing to be done with a machine not 
 boxed, etc., as here required, held, that the 
 contract was void, and that such fact was a 
 good defense in an action for services ren- 
 dered thereunder : Dillon v. Allen, 46-299. 
 
 729. Allowing minors in saloons: Under 
 the statute (15 G. A., ch. 59 ; McClain's Ann, 
 Stat., 1019) providing a punishment for the 
 keepers of billiard halls, saloOns, etc., per- 
 mitting minors to- remain itt such haUs or 
 saloons, it is the duty of saloon-keepers not 
 only not to permit, but to prevent minors re- 
 maining in their saloons, and the same duty is 
 imposed on their employees. If the keeper or 
 employee fails to take proper measures to pre- 
 vent, he is to be deemed to perDait it, and the 
 lia,bility wUl not depend upon the knowledge 
 of tixB Iceeper or bis employiee of fine facst t)^t 
 
CRIMINAL LAW, III, 1, 2. 
 
 453 
 
 Procedure in courts of record.— What criminal.— Security to keep the peace. 
 
 the person Is a minor : State v. Probasco, 62- 
 400. 
 Selling intoxicating liquor to minors, 
 
 see Intoxicating Liquor, §§ 68-76. 
 
 III. Peooeduee in couets of eecoed. 
 
 1 . What deemed a criminal procedure. 
 
 730. Tiolotionofacityordinance: Apro- 
 ceeding before a magistrate in the name of 
 the oity accusing defendant of the violation 
 of a city ordinance is a criminal prosecution : 
 Davenport v. Bird, 34-554. 
 
 731. The violation of an ordinance of a 
 city punishing acts therein specified by a 
 fine is a crime, and a prosecution to enforce 
 the punishment is a criminal proceeding: 
 Jaquith v. Boyce, 42-406; State v. Vail, 57- 
 103. 
 
 732. A proceeding before a mayor of an 
 incorporated town to punish the violation of 
 an ordinance is in the nature of a criminal 
 prosecution : Columbus City v. Cutcomp, 61- 
 673. 
 
 733. The provision of the constitution re- 
 quiring prosecutions to be in the name of the 
 state of Iowa refers to such criminal prose- 
 cutions as shall be instituted and prosecuted 
 before a tribunal provided for in the consti- 
 tution under the statutes of the state, and 
 does not refer to prosecutions for violations 
 of city ordinances: Davenport v. Bird, 34r- 
 524. 
 
 734. In name of city: A proceeding for 
 violation of a city ordinance may be brought 
 in the name of the city when so provided 
 by law or ordinance ; but if such prosecution 
 is brought in the name of the state, without 
 objection thereto until upon appeal, an ob- 
 jection on that ground, will not be sustained: 
 State V. King, 37-462. 
 
 735. An appeal by a city in a proceeding 
 commenced in its name before a mayor by 
 information to punish for the violation of a 
 oity ordinance is to be governed by the rules 
 regulating appeals in criminal cases : Colum- 
 bus City V. Cutcomp, 61-672. 
 
 736. Penalty; forfeiture: Where the stat- 
 utes provide for a forfeiture in behalf of the 
 school fund and also authorize a recovery of 
 a penalty by the party injured, the prtfvisions 
 npt being in the alternative, the enforcement 
 
 of one dees not prevent the enforcement of 
 the other : Herriman v. Burlington, C. R. & 
 N. R. Co., 57-187. 
 
 737. Penalty implies prohibition, and 
 where a penalty is imposed upon the doing 
 of an act a prohibition is thereby implied, 
 and a contract in violation of such prohibi- 
 tion is void : Oilman v. Des Moines Valley R. 
 Co., 40-200. 
 
 A bastardy proceeding is not criminal : See 
 Bastardy. 
 
 A proceeding to punish for contempt is 
 quasi criminal : See Contempt, §§ 20-23. 
 
 2. Prevention of ci^ime; security to 
 Tieejp thepeace. 
 
 738. Threats of violence to another may 
 be ground to bind over to keep the peace, al- 
 though coupled with a condition which in- 
 cludes the performance of a professional 
 duty: Ritcheyv. Davis, 11-124. 
 
 739. Appearance in court: The plaintiff 
 is not bound to appear in the district court at 
 the next term, and further prosecute tlie 
 proceeding, and a failure to appear and pros- 
 ecute does not subject him to judgment for 
 costs: State v. Holliday, 33-897. 
 
 740. But he may become liable if he does 
 further prosecute and his complaint is found 
 groundless: State v. Leathers, 16-406. 
 
 741. If plaintiff does not appear, defend- 
 ant is not entitled to a trial, but should be 
 discharged. The decision of the justice in 
 binding over is not to be called in question : 
 State V. White, 47-555. 
 
 742. Evidence: Before the enactment of a 
 statutory provision allowing defendant in a 
 criminal prosecution to be a witness in his own 
 behalf, he could not be a witness in his own 
 behalf in a proceeding in the district court for 
 security to keep the peace : State v. Darring- 
 ton, 47-518. 
 
 743. That the evidence before the justice 
 of the peace in a proceeding for security to 
 keep the peace was not taken down in writ- 
 ing is not a ground for dismissing the pro- 
 ceeding against defendant in the district 
 court. On the hearing, other evidence may 
 be received than that produced before the 
 justice : Qribble v. State, 3-217. 
 
 744. Costs: If defendant is discharged on 
 the hearing in the district court, the costs in 
 
4:54 
 
 CRIMINAL LAW, III, 3, a, b. 
 
 Extent of jurisdiction. — Venue. — Change of. 
 
 such court cannot be taxed against him: 
 lUd. 
 
 745. A person bound over to appear in the 
 district court under security to keep the 
 peace may be held liable for the costs, al- 
 though the prosecutor does not appear in that 
 court: Houston v. United States, Mor., 174. 
 
 746. Action on bond: Insanity is a de- 
 fense to an action for breach of a bond to 
 keep the peace : State v. Geddis, 43-264. 
 
 3. Extent of jurisdiction. 
 
 a. Yembe. 
 
 liT. Offense on Mississippi river: Juris- 
 diction being given to the state to punish 
 offenses committed on the Mississippi river 
 between the north and south boundaries of 
 the state, the jurisdiction of the district court 
 of each county bounded upen the river ex- 
 tends over the crimes committed upon such 
 river between the north and south bounda- 
 i-ies of such county : State v. Mullen, 35-199. 
 
 748. The jurisdiction of such court may 
 extend to the punishment of the act of keep- 
 ing a nuisance upon a boat moored to the 
 east shore of an island situated on the east side 
 of the center of the channel, and floating or 
 resting upon the ground according to the 
 stage of the water : Ibid. 
 
 749. Venue in larceny: Stealing property 
 in another state and bringing it within this 
 state constitutes the crime of larceny in the 
 county into which the property is taken: 
 State V. Bennett, 14r-479. 
 
 750. Such offense is not, however, a crime 
 commenced in one state and consummated 
 in another, within statutory provisions as to 
 such cases : Ibid. 
 
 751. OlTenses committed near county 
 boundaries: Under the statutory provision 
 that an offense committed within five hun- 
 dred yards of the boundary line of two coun- 
 ties may be prosecuted in either, held, that 
 the county which had taken jurisdiction of 
 the crime committed in an adjoining county 
 within five hundred yards of the boundary 
 between the two could not recover from the 
 county in which the crime was committed 
 the costs of the prosecution: Floyd County 
 V. Cerro Oordo County, 47-186. 
 
 752. Offense partly in one county: The 
 provision that an offense committed partly 
 
 in one county and partly in another may be 
 prosecuted in either does not apply to the 
 crime of administering a drug to procure 
 abortion, where the drug is administered in 
 one county and the miscarriage takes place 
 in another. In such case the crime is com- 
 pleted where the drug was administered with 
 that intent : State v. Hollenbech, 36-113. 
 
 753. Offense on boat: Under a statutory 
 provision (Code, § 4161), an offense commit- 
 ted on a boat, raft, or vessel, may be prose- 
 cuterd in any county through which such boat, 
 raft or vessel may pass in the course of the 
 voyage: Nash v. State, 3 G. Gr., 286. 
 
 754. Evidence as to venue: In a prosecu- 
 tion for assault it is sufficient for the state to 
 prove the county in which the offense was 
 committed. It is not requisite to prove 
 either the village, city or township: State v. 
 Gibson, 29-295. 
 
 755. The venue of a crime must be proven 
 to warrant a conviction. Therefore where the 
 prosecuting witness testified that the offense 
 was committed at her father's house, and 
 her father testified that he lived in the 
 county where the case was tried, but there was 
 no pi'oof to show where he lived when the 
 offense was committed, held, that the venue 
 was not sufficiently proven: State v. Carr, 
 60-453. 
 
 756. Testimony in a particular case con- 
 sidered, and held to show that the crime 
 charged in the indictment was committed in 
 another county than that in which the in- 
 dictment was found, and that the convic- 
 tion was erroneous : State v. Byam, 54-409. 
 
 757. Judicial notice: The court will take 
 judicial notice of the county in which an in- 
 corporated town is situated. Proof of the com- 
 mission of the act in a certain town is suffi- 
 cient proof of the conmiission within the 
 county in which the town is located: State 
 V. Reader, 60-527. 
 
 b. Change of venue. 
 
 758. Aftt davits: Where the petition is 
 based upon the prejudice of the judge, the 
 statute does not require affidavits in support 
 thereof, nor contemplate the introduction of 
 testimony, but the judge is not required to 
 allow a change in such case as a matter of 
 course : State v. Mewherter, 46-88. 
 
CRIMINAL LAW, III, 3, b. 
 
 455 
 
 Change of venue. 
 
 759. In a particular case, Mid, that the 
 showing for a change was sufficielit to render 
 the action of the court in refusing it errone- 
 ous: State V. Nash, 7-347, 366. 
 
 760. An attorney appointed by the court 
 to defend a prisoner is not incompetent to 
 make an affidavit to prove the facts necessary 
 to entitle the prisoner to a change of venue : 
 State V. Mooney, 10-506. 
 
 761. Counter-affidavits: In a prosecution 
 for violation of a city ordinance, it is not im- 
 proper to consider, upon an application for a 
 change of venue, counter-affidavits of the 
 citizens of the city that there is no such prej- 
 udice against such defendant in the county 
 as to entitle him to such change: State v. 
 Wells, 46-662. 
 
 762. Discretion of the court in granting: 
 The question of allowing the change rests in 
 the sound discretion of the court, and unless 
 such discretion has been abused the supreme 
 court, on appeal, wiU not interfere with the 
 decision: State v. Ostrander, 18-435, 447; 
 State V. Moss, 21-467; State v. Collins, 32-36; 
 State V. Fetter, 32-49. 
 
 763. But this discretion is not absolute, nor 
 an arbitrary discretion : State v. Hutchinson, 
 27-212. 
 
 764. If it appear that this discretion has 
 been improperly exercised, the action of the 
 court will be reviewed and reversed ; and 
 in a particular case the refusal to grant a 
 change was held error: State v. Canada, 4&- 
 448. 
 
 765. The rule that the court is to pass upon 
 the question of granting a change of venue 
 in the exercise of a sound discretion applies 
 to cases where the change is asked on the 
 ground of prejudice of the judge, or excite- 
 ment and prejudice of the people of the 
 county, and although these grounds may be 
 averred in the very language of the statute, 
 they do not entitle the prisoner to a change 
 as a matter of right (explaining State v. Nash, 
 7-347; State v. Mooney, 10-506) : State v. Ar- 
 nold, 12-479 ; Gordon v. State, 3-410 ; State 
 V. Barrett, 8-536. 
 
 766. Abuse of discretion in denying a 
 change of venue must be made to appear, or 
 the decision of the court will not be inter- 
 fered with, even when the ground alleged is 
 the prejudice of the judge : State v. Ray, 50- 
 520; State v. Knight, 19-94; State v. Ingalls, 
 
 17-8; State v. Freeman, 27-333; State v. 
 MewJierter, 46-88. 
 
 767. To justify a reversal of the case for 
 the action of the judge in overruling a mo- 
 tion for a change of venue, the record must 
 show affirmatively that there was an abuse 
 of the discretion reposed in the court in de- 
 termining the same : State v. Hale, 65-575. 
 
 768. Therefore, where an affidavit for a 
 change of venue was a mere statement of the 
 belief of the applicant that the judge was 
 prejudiced, founded on alleged facts of the 
 existence of which the applicant had no per- 
 sonal knowledge, held, that such affidavit 
 was insufficient to overcome the presumption 
 arising from the action of the court in deny- 
 ing the application : Ibid. 
 
 769. Even though the petition for a change 
 is based upon .the prejudice of the judge, and 
 shows sufficient ground, if true, to require a 
 change, it does not follow that the change 
 should be granted as a matter of course. 
 Some latitude is left to the judge in passing 
 upon such petition. He may consult his own 
 feelings, as weU as the papers, and grant or 
 deny the change as he may think the right 
 demands, in the exercise of a sound discre- 
 tion. In a particular case, held, that the 
 showing for a change in such case was not 
 sufficient to require the reversal of the action 
 of the court in refusing it : State v. Foley, 
 65-51. 
 
 770. Where an application was made for 
 change of venue on account of prejudice of 
 the judge, and overruled, and subsequently, 
 in response to an objection to a juror made 
 by defendant, the judge remarked that he 
 intended to give the defendant a better jury 
 than he was entitled to, held, that this re- 
 mark showed prejudice on the part of the 
 judge, and that the motion for a change 
 should have been sustained : State v. Head, 
 49-85. 
 
 771. Where the record fails to show that 
 the evidence is aU that was produced on the 
 hearing of the application for change of 
 venue, the supreme court cannot pass upon 
 the correctness of the action of the lower 
 court : State v. Mailing, 11-239 ; State v. Zeis, 
 11-416. 
 
 772. Where a showing for a change is 
 based on the ground of excitement or preju- 
 dice of the inhabitants of the county, and ^s 
 
456 
 
 CRIMINAL LAW, III, 3, b; 4. 
 
 Change of venue. — Limitation. 
 
 resisted by affidavits on the part of the state, 
 the supreme court will, on appeal, be slow to 
 interfere with an order denying the change. 
 The record must show that there was an 
 abuse of discretion in determining the mat- 
 ter : State v. Williams, 63-135. And in a par- 
 ticular case held that the showing was not 
 sufficient to necessitate a reversal : State v. 
 Perigo, 70 . 
 
 773. It does not foUow that because a 
 change of venue on the ground of prejudice 
 of the inhabitants of the county has been im- 
 properlj^ denied, and the case is reversed on 
 that ground, that when the case comes on 
 for trial anew, the defendant will be entitled 
 to such change on the affidavits before filed : 
 State V. Nash, 7-847, 374. 
 
 774. Error in overruling an application for 
 change of venue wUl not entitle the defend- 
 ant to a release on habeas corpus: Jackson v. 
 Boyd, 58-536. 
 
 776. In police court: There is no provision 
 for change of venue in proceedings before a 
 police court for violation of a city ordinance. 
 The provisions in that respect with reference 
 to prosecutions before justices of the peace 
 do not apply: Zelle v. McHeJiry, 51-573. 
 
 776. The transcript of record entries 
 which is required to be made by the clerk in 
 transferring the case upon change of venue 
 to another county does not include the in- 
 dictment itself, which is required to be trans- 
 mitted in its original form : Sharp v. State, 
 2-454. 
 
 777. It is not error to allow the clerk of 
 the court from which a change of venue is 
 taken to amend his certificate by interlinea- 
 tion to supply an omission, there being no 
 question as to the truthfulness of the amend- 
 ment : State v. Gibson, 29-395. 
 
 778. Where an indictment upon which de- 
 fendant is put on trial appears to have been 
 properly found in the county from which the 
 change is taken, and no objection is made 
 thereto until after verdict, defendant cannot 
 object that it is not filed in the court in which 
 the trial is had : Shai-p v. State, 2-454. 
 
 779. Bail: The clerk of the court to which 
 the change is granted has power to take a 
 recognizance for the appearance of the pris- 
 oner: State V. Merrthew, 47-113. 
 
 780. The form of bond required upon 
 granting a change of venue is substantially 
 
 the same as that prescribed in other cases of 
 bail : Ibid. ' 
 
 781. The statutory provision as to giving a 
 new bond upon change of venue, for appear-, 
 ance in the court to which the case is 
 changed, is directory, and does not operate 
 to release the sureties on the original bail 
 bond, who are still responsible for defend- 
 ant's appearance: State v. Brown, 16-314. 
 
 782. Costs: Under a statutory provision 
 that the county from which a criminal case is 
 taken by change of venue shall pay to the 
 county to which it is taken all costs of the 
 change and trial, ' ' which shall be audited and 
 allowed by the court trying the cause " (Code, 
 S5 4381), held, that an indorsement by the 
 judge not purporting to act as the court, rec- 
 ommending the allowance of an amount for 
 costs, was not an auditing and allowance 
 binding upon the county : Barnes v. Marion 
 County, 54-483. 
 
 4. Lindtation of time for commenc- 
 ing prosecution. 
 
 783. How raised: The statute of limita- 
 tions in a criminal proceeding cannot be 
 raised by demurrer to the indictment : State 
 V. Hussey, 7-409; State v. Gromne, 10-308; 
 State V. Deitriek, 51-467. 
 
 784. The clause of the section of the 
 statute of limitations in criminal proceed- 
 ings providing that the statute shall not run 
 during the time of the non-residence of de- 
 fendant is not to be restricted to offenses 
 committed when the defendant is out of the 
 state, but applies equally to all cases: State 
 V. Mclntire, 58-573. 
 
 786. A defendant in a prosecution for em- 
 bezzlement is not estopped by subsequent 
 fraudulent statements from showing that 
 the defalcation actually took place at such 
 time that the prosecution therefor is barred: 
 State V. Hutchinson, 60-478. 
 
 786. Under former provisions, held, that 
 the filing of information before a justice of 
 the peace under which defendant was ar- 
 rested and bound over to appear before the 
 district court was a sufficient commence- 
 ment of the prosecution: State v. Cfroome, 
 10-808. (But the present statute requires the 
 indictment to be found within the time 
 specified: Code, § 4166.) 
 
CRIMINAL LAW, III, 6. 
 
 457 
 
 Acquiring jurisdiction; arrest; extradition. 
 
 787. It is not error to instruct the jury that 
 they must find that the crime was com- 
 mitted on or about the time charged or at 
 any date within the statutory period of lim- 
 itations prior to the finding of the indict- 
 ment 1 State V. Fry, 67-475. 
 
 788. Where an offense is charged as com- 
 mitted on a particular day, defendant may 
 be convicted by proof of the commission of 
 the offense on any day within the statutory 
 period of limitations: State v. Briggs, 68- 
 416. 
 
 Further as to allegations in the indict- 
 ment as to the time of commission of the 
 offense charged, see infra, %% 1029-1036. 
 
 5. Acquiring jurisdiction ; arrest; ex- 
 tradition. 
 
 789. Jurisdiction first acquired: The 
 
 court first acquiring authority over the ac- 
 cused by his arrest, or by otherwise obtain- 
 ing custody of his person through its officers, 
 first acquires jurisdiction of the case. The 
 finding of an indictment does not confer 
 jurisdiction of the person of the accused : Ex 
 parte Baldwin, 69-502. 
 
 790. The power to imprison necessarily 
 includes the power to arrest: Davenport v. 
 Bird, 34-534. 
 
 791. Wiiat constitutes arrest: It is not 
 essential in order to constitute an arrest that 
 the sheriff should have informed the prisoner 
 of his intention to malie the arrest, and that 
 he was a peace oiSoer. While the prisoner 
 might ordinarily be entitled to such informa- 
 tion, the legality of the arrest as between the 
 sheriff and other parties is in no manner af- 
 fected by the sheriff's failure in these re- 
 spects : Miller v. Dickinson County, 68-103. 
 
 792. Peace officer: A special constable ap- 
 pointed by a justice of the peace under the 
 provisions of Code, § 3630, is not a peace offi- 
 cer: Foster V. Clinton County, 51-541. 
 
 793. The marshal is a peace officer and 
 may therefore arrest a person guilty of va- 
 grancy and serve the order of a justice of the 
 peace committing such person to imprison- 
 ment, and hold the prisoner under such 
 order : State v. Watson, 66-670. 
 
 794. Bench warrant: The issuance of a 
 bench warrant is not essential to give the 
 court jurisdiction of defendant. Appearance 
 
 and submission to the jurisdiction of the 
 court renders a warrant unnecessary: State 
 V. Say, 50-530. 
 
 795. Warrant, when returnable: The fact 
 that the warrant for arrest on preliminary 
 examination is returnable on the next day 
 after its issuance, instead of forthwith, will 
 not render it void : State v. Freeman, 8-428. 
 
 796. Arrest by officer without warrant: 
 Where an officer makes an arrest without a 
 warrant on proper cause, he may detain the 
 offender for a reasonable time until he can 
 be taken before a magistrate for examina- 
 tion, and will not be liable in trespass for 
 doing so: Hutchinson v. Sangster, 4 G. Gr., 
 340. 
 
 797. A peace officer may make an arrest 
 without a warrant, when a public offense has 
 in fact been committed, and he has reasonable 
 ground for believing that the person arrested 
 has committed it; and it is erroneous to 
 charge the jury in such a case, that, if the 
 officer makes an arrest without a warrant, 
 he will be liable, unless the party arrested 
 was likely to escape: Montgoinery v. Sutton, 
 67-497. 
 
 798. Resistance to arrest: In a prosecu- 
 tion for murder committed in resistance of 
 lawful arrest, the information and warrant 
 under which the arrest was sought to be 
 made may be given in evidence: State v. 
 Meshek, 61-316. 
 
 799. Wrongful arrest outside of state: 
 It is no defense that defendant was arrested 
 in another state without authority and 
 brought to this state by force and against 
 his will: State v. Ross, 21-467. 
 
 800. A court will not, upon the trial of an 
 indictment on a plea of not guilty, inquire as 
 to whether or not the defendant was prop- 
 erly or improperly brought within the juris- 
 diction of the court : State v. Day, 58-678. 
 
 As to reward for arrest of criminal, see 
 Contracts, §§ 57-63. 
 
 801. Search of person of the prisoner: 
 Police officers upon the arrest of one charged 
 with felony may make search of his person 
 for stolen property, instruments used in the 
 commission of the crime, or any article which 
 may give a clue to its commission or the 
 identification of the criminal: Seifsnyder v. 
 Lee, 44-101. 
 
 802. The steriff is justifred in searching 
 
458 
 
 CRIMINAL LAW, in, 5, 6. 
 
 Extradition. — Preliminary examination. 
 
 the person arrested and taking from him 
 money or property connected in any way 
 with the crime charged, or which may serve 
 in identifying the prisoner, or be used by him 
 in effecting an escape : Commercial Exchange 
 Bank v. McLeod, 65-665. 
 
 803. Property thus taken from a prisoner 
 by the officer, and which is not connected 
 with nor the fruit of the crime for which he 
 is arrested, is in the possession of the offi- 
 cer for the person under arrest, and is no 
 more subject to attachment than if it were 
 in the prisoner's personal possession : Tbid. 
 
 804. But where the money taken from the 
 prisoner was the money obtained by him 
 through the commission of thecrime for which 
 he was arrested, held, that it was subject to 
 garnishment in the hands of the officer at the 
 suit of the person rightfully entitled thereto : 
 Reifsnyder v. Lee, 44-101. 
 
 Further, see Seakch Warrants. 
 
 805. Extradition; fugitive from justice: 
 To constitute a person a fugitive from justice, 
 he must have been in the state where the 
 crime is alleged to have been committed, 
 must have there committed the crime, and 
 must have fled therefrom to escape punish- 
 ment. The state is not bound to surrender 
 one of its citizens who has constructively 
 committed a crime in another state, without 
 having been there in person : Jones v. Leon- 
 ard, 50-106. 
 
 806. The fact that the governor considers 
 the evidence submitted to him sufficient, and 
 issues his warrant accordingly, does not pre- 
 clude inquiry by the courts as to the suffi- 
 ciency of such evidence, and his decision 
 may be questioned in a habeas corpus pro- 
 ceeding: Ibid. 
 
 807. The sufficiency of evidence in a par- 
 ticular case, doubted : Ibid. 
 
 808. Compensatioa of officer: Under 
 Code, § 4172, a contract to pay an officer a 
 fee or reward for arresting and bringing 
 back an escaped prisoner by means of a 
 requisition is not valid, even though entered 
 into by a surety oh the bail bond of such 
 prisoner : Day v. Townsend, 70 . 
 
 809. Detention to await requisition: Un- 
 der a statute (Code, § 4176) authorizing the 
 arrest and binding over of a person found 
 within the state liable to be demanded from 
 another state upon requisition, held, that 
 
 such a proceeding was only applicable where 
 the person arrested was charged with a crime 
 committed in some other state, before some 
 court, magistrate or other officer of such 
 state by an indictment, information or other 
 accusation known to its laws, and that un- 
 less such fact was made to appeal-, the mag- 
 istrate had no jurisdiction to bind over the 
 person arrested to await a requisition : State 
 V. Hufford, 28-391. 
 
 810. If in such case bail is taken without 
 its being shown that the person arrested is 
 properly charged in some other state, the 
 proceedings are void and a recovery cannot 
 be had on the bail bond : Ibid. 
 
 811. A party thus arrested charged with 
 murder in the second degree is entitled to 
 release on bail under the provisions of the 
 constitution: Tbid. 
 
 6. Preliminary examination. 
 
 812. Defendant as a yrituess: Before the 
 Code was amended so as to allow defendant 
 in a criminal prosecution to be a witness in 
 his own behalf, he might testify in a preUm- 
 inary examination : State v. Laffer, 38-422. 
 
 813. But he was not a competent witness 
 for himself on a trial on an information for 
 security to keep the peace : State v. Darting- 
 ton, 47-518. 
 
 814. Minutes of the evidence taken down 
 by the examining magistrate as required by 
 law are not competent as evidence on the 
 trial of the case: State v. Collins, 32-36-, 
 State V. Hull, 26-292. 
 
 815. Neither are such minutes admissible 
 for the purpose of impeaching the witness on 
 the trial : State v. Hayden, 45-11. 
 
 816. But the testimony given on the pre- 
 liminary examination, by a witness who dies 
 before the trial, may be proved on the trial 
 by witnesses who heard it : State v. Fitzger- 
 ald, 63-268. 
 
 817. Although the minutes are not prop- 
 erly certified to by the magistrate, yet if the 
 gremd jury act thereon, and return a proper 
 memorandum thereof to the court in connec- 
 tion with the indictment, as required by Code, 
 § 4289, the defendant cannot object to the 
 calling of witnesses whose names are in- 
 dorsed on the back of the indictment, and a 
 memorandum of whose testimony is thus re- 
 turned : State v. Keeper, 65-745. 
 
CRIMINAL LAW, III, 7, a. 
 
 459 
 
 Grand jury. — Formation; challenges. 
 
 818. Fees: The magistrate or a person ap- 
 pointed by him to write out the minutes of 
 the testimony cannot recover compensation 
 therefor from the county, The usual fees of 
 the magistrate, in such cases, for conducting 
 the examination are all that are allowed : 
 Sanford v. Lee County, 49-148. 
 
 819. The magistrate is entitled to be reim- 
 bursed by the county for expenses of station- 
 ery used in taking down minutes of the 
 evidence: Evans v. Story County, 35-136. 
 
 820. Commitment; warrant: The warrant 
 of commitment in a particular case held suffi- 
 cient : Cowell V. Patterson, 49-514. 
 
 821. The fact that the defendant was 
 bound over by the justice will be presumed 
 in an action on a bail bond given upon 
 such commitment, but if it appears that no 
 such order was made, that fact is a proper 
 matter of defense : State v. Patterson, 23-575. 
 
 822. Prosecuting witness: The person fil- 
 ing complaint is to be treated as the prose- 
 cuting witness, and the fact that he is 
 subpoenaed as a witness by the state does not 
 change his situation : In re Trenchard, 16-58. 
 
 823. Appeal by prosecuting witness from 
 an order taxing the costs of the prosecution 
 to him must be taken at the time judgment 
 is rendered and not afterwards: State v. 
 Knapf, 61-522. 
 
 824. Putting witness under bond to ap- 
 pear; witness fees: A witness who is re- 
 quired by a committing magistrate to enter 
 into a written undertaking, with security, to 
 appear and testify on the trial of the case, 
 and is committed to jail for failure to furnish 
 security, is not entitled to witness fees for 
 the time he is thus held in confinement: 
 Markwell v. Warren County, 53-423. 
 
 7. Grand jury and its action. 
 
 a. Formation; challenges. 
 
 825. Irregularity in jury lists: It is not 
 a valid objection to a gxand jury that the 
 judges of election, in making returns of 
 names of persons to serve as grand jurors, 
 returned in all eighty-five names instead of 
 seventy-five, as required by law, if the extra 
 names had been stricken off before the 
 grand jury was drawn and fifteen jurors 
 have been regularly drawn and summoned. 
 
 Neither is it a sufficient objection that the 
 names thus returned were not entered in the 
 election book : State v. Knight, 19-94. 
 
 826. Filling panel: If a grand juror is 
 discharged subsequently to the formation of 
 the jury, the panel should be filled by the 
 summoning of another juror : Norris' House 
 V. State, 3 G. Gr., 513. 
 
 As to filling panel after challenges have 
 been allowed, see infra, §§ 863-867. 
 
 827. Objection to the substitution of one 
 grand juror for another without having the 
 vacancy filled in the manner required by 
 law must be made at the time of such sub- 
 stitution : State v. Howard, 10-101. 
 
 828. New precept: The provision of stat- 
 ute (Code, § 244) for the issuance of a new 
 precept applies only to a case where all the 
 jurors fail to appear, or it is determined that 
 the whole panel has been illegally selected or 
 drawn. Such provision has no reference to 
 the case of failure of jurors to attend: State 
 V. Pierce, 8-231. 
 
 829. Where a part of the grand jury fails 
 to appear, the court may orally direct the 
 sheriff to summon a sufficient number to 
 complete the panel, which order should be 
 entered of record, but a written precept is 
 not necessary: State v. Miller, 53-84; State 
 V. Miller, 53-154. 
 
 830. The discharge of one grand jury and 
 the impaneling of another to which there is 
 no objection except the fact that the first has 
 been erroneously discharged will be no ground 
 for quashing an indictment found by the 
 second : State v. Hughes, 58-165. 
 
 831. At least this is so where there is no 
 allegation or showing of prejudice or possible 
 injustice to defendant from the fact of the 
 discharge of the first jurv: State v. Hart 
 67-142. 
 
 832. Ee-summoning: A grand jury hav- 
 ing once been discharged may be re-sum- 
 moned at the same term : State v. Reid, 20- 
 413. 
 
 833. Talesmen chosen to fill the places of 
 absent grand jurors are to serve during the 
 term at which they are summoned, and if the 
 jury is discharged and re-summoned during 
 the term, such talesmen are to be re-sum- 
 moned with the others: Ibid. 
 
 834. Expiration of term: The grand jury 
 does not terminate by reason of the fact that 
 
4:60 
 
 CRIMINAL LAW, III, 7, a. 
 
 Grand jury. — Formation; ehallengea. 
 
 the term of court commencmg within the 
 year for wliich they were chosen extends 
 into the following year without an adjourn- 
 ment of the term ; State v. Winebrenner, 67- 
 230. 
 
 835. Defects, how raised: Under a statute 
 requiring the board of county commissioners 
 to deliver copies of jury lists to the clerk 
 thirty days before the commencement of the 
 term, held, that failure to comply therewith 
 was a defect in the proceedings which might 
 be raised by plea in abatement : United States 
 V. Cropper, Mor., 190. 
 
 836. The court has no power to remove, 
 reform or change the members of the grand 
 jury : Keitler v. State, 4 G. Gr., 291. 
 
 837. Irregularities not prejudicial: 
 Where there has been no substantial depart- 
 ure in the selection, drawing, etc., of the 
 grand jury afEecting substantially the rights 
 of defendant, a motion to set aside the in- 
 dictment for irregularities in connection with 
 their selection should not be sustained : State 
 V. Brandt, 41-593. 
 
 838. It would seem that deviations from 
 the method pointed out for the selection, 
 gtc, of the grand jury, of a slight and un- 
 important nature, should not be regarded: 
 State V. Carney, 20-83. 
 
 839. Selection of loreman may be made 
 either from grand jurors regularly drawn or 
 from those summoned to supply a deficiency : 
 State V. Brandt, 41-593. 
 
 840. Grounds of challeug'c ; exemptions 
 from service: Although justices of the 
 peace, supervisors, ministers of the Gospel, 
 etc., are exempt from service upon a grand 
 jury, they are not necessarily incompetent, 
 and their presence will not vitiate the panel. 
 The exemption is a personal privilege which 
 may be waived : State v. Adams, 20-486. 
 
 841. Alienage: That a member of the 
 grand jury is an alien is a ground of chal- 
 lenge, but not a ground for setting aside an 
 indictment : State v. Gibbs, 39-318. 
 
 842. Alienage wUl not be presumed. The 
 party asserting it as a ground of challenge 
 has the burden of proving it: State v. 
 Haynes, 54-109. 
 
 843. Bias ; opinion of guilt or innocence: 
 Under a statute som6what different from 
 the one now in force, held, that it was only 
 where a juror had formed or expressed an 
 
 unquaUfied opinion of defendant's guilt that 
 he was disqualified as a juror, and that the 
 fact that he had formed an opinion which, 
 upon further interrogation, he stated was 
 not unqualified, did not render him incom- 
 petent : State v. Hinhle, 6-380. 
 
 844. The statement of a juror that he had 
 read some portion of the evidence taken at 
 a coroner's inquest upon the body of the 
 person with whose killing defendant was 
 charged, but did not know that he bad read 
 the whole of it, and that he thought he had 
 formed an opinion from what he had read as 
 to the guilt of defendant, but that he had no 
 prejudice or bias such as would prevent him 
 from listening to the evidence and passing 
 upon the question of guilt as impartially as 
 though he had never heard of the case, held, 
 not sufficient to show that he was disquali- 
 fied: State V. Shelton, 64-333. 
 
 845. Where a case is sent back to the same 
 grand jury after a former indictment found 
 by them is set aside, it is a sufficient cause of 
 challenge to the jurors that they have heard 
 the evidence upon which the previous in- 
 dictment was found, and by the finding of 
 such indictment have formed and expressed 
 an opinion as to the guilt of defendant: State 
 V. Gillick, 7-287 ; State v. Osborne, 61-330. 
 
 846. It seems that a challenge to a grand 
 juror may be allowed for any cause that 
 would constitute an objection to a petit juror: 
 State V. Gillick, 7-287. 
 
 847. Challenge to panel: That the grand 
 jury is reorganized during the term is not a 
 ground of challenge to the panel: State v. 
 Mooney, 10-506. 
 
 848. Who may challenge; prosecntion: 
 In the absence of express statutory authority 
 the prosecution has no right to challenge 
 members of the grand jury : Keitler v. State, 
 4 G. Gr., 291. (Such challenge is authorized 
 as to individual jurors by Code, § 4259.) 
 
 849. Defendant hound over: Where de- 
 fendant was bound over to appear before the 
 grand jury after the gi-and jury was organ- 
 ized, held, that he was still entitled to exer- 
 cise his right of challenge to such grand jury : 
 State V. Mooney, 10-506. 
 
 850. A defendant under arrest in a pre- 
 liminary proceeding but not yet bound over 
 to appear before the grand jury is not en- 
 titled to challenge grand jurorsalthoughitis 
 
CRIMINAL LAW, III, 7, a. 
 
 4.61 
 
 Grand juiy. — Formation; challenges. 
 
 possible that his case may atterwards come 
 before them: State v. Fitzgerald, 63-268. 
 
 851. Time for challenge: The time within 
 which the right of challenge to grand jurors 
 shall be exercised is not prescribed, and the 
 prisoner ought to be permitted to exercise it 
 at any time before the consideration of his 
 case. Therefore, where a case is re-submit- 
 ted to the same grand jury after a previous 
 indictment has been set aside, the prisoner 
 should be allowed an opportunity to chal- 
 lenge the members of such grand jury on the 
 ground that they have previously formed and 
 expressed an opinion in returning the first 
 indictment: State v. Osborne, 61-330; State 
 V. Oillick, 7-287. 
 
 852. Defendant should exercise his right 
 of challenge at the proper time or it will be 
 held waived: State v. Harris, 38-248. 
 
 853. Where defendant was in court to 
 answer an indictment, and on motion the in- 
 dictment was quashed, and the court then 
 referred the matter to the grand jury for 
 further consideration, and they returned an 
 indictment charging defendant with a differ- 
 ent crime, held, that an objection to the 
 panel should have been then raised, and 
 could not be taken advantage of afterwards : 
 State V. Ruthven, 58-121. 
 
 854. An objection to the grand juiy must 
 be made before pleading to the indictment : 
 State V. Reid, 20-413. 
 
 855. A defendant held to answer before 
 the formation of the grand jury cannot 
 interpose an objection to the grand jury or 
 an individual juror after the jury is sworn : 
 Dixon V. State, 3-416; State v. Hinkle, 6-380; 
 State V. Ingalls, 17-8; State v. Gibbs, 39-318. 
 
 856. Defendant not held to answer; 
 method of raising objection : A defendant 
 not bound over to appear before the grand 
 jury before the finding of an indictment 
 against him cannot be deprived of the right 
 to attack the indictment for causes which 
 would have been grounds of challenge : Da- 
 tell V. State, 4 G. Gr., 125; Norris' House v. 
 State, 3 G. Gr., 513. 
 
 The objection in such case is to be raised 
 by motion to set aside the indictment : See 
 infra, g§ 1084^1086. 
 
 857. Waiver of challenge: A defendant 
 bound over to answer may waive his right to 
 ohalleBge the grand jury, and will wot be js 
 
 default if he does not appear for that pur- 
 pose: State V. Klingman, 14^404; Ringgold 
 County V. Ross, 40-176. 
 
 858. Presence of defendant: It seems that 
 the right of challenging an individual grand 
 juror may be exercised or waived by defend- 
 ant's attorney in the absence of defendant, 
 even on a trial for felony. The presence of 
 defendant at this proceeding is not made es- 
 sential. At any rate, where it does not ap- 
 pear that there was any objection for which 
 defendant could have challenged a juror, al- 
 leged en-or in forming the grand jury in de- 
 fendant's absence wiU be error without 
 prejudice : State v. Fdter, 25-67. 
 
 859. Burden of proof as to ground of 
 challenge : A challenge to the panel need not 
 be demurred or pleaded to by the state. De- 
 fendant must introduce evidence in support 
 of his challenge or it wiU be overruled : State 
 V. Gillick, 10-98. 
 
 860. The burden of showing irregularity 
 in the selection of grand jurors is upon the 
 party making the challenge : State v. Hart- 
 man, 10-589. 
 
 861. The party asserting alienage as a 
 ground of challenge has the burden of prov- 
 ing it : State v. Haynes, 54-109. 
 
 862. Filling panel: A judgment of con- 
 viction will not be reversed on the ground 
 that, subsequently to the formation of the 
 grand jury, one of the jurors was excused 
 and a person substituted, as to whom de- 
 fendant did not have opportunity to exercise 
 his right of challenge, it not appearing that 
 the new juror was disqualified or the defend- 
 ant prejudiced : State v. Fowler, 52-103. 
 
 863. In case of the challenge of an individ- 
 ual juror, there is no provision for summon- 
 ing another juror in his place. The member 
 thus challenged does not cease to become a 
 member of the grand jury, and his place is 
 not to be supplied ; and an indictment found 
 by the requisite number of grand jurors as to 
 whom no cause of challenge by defendant is 
 interposed will be good : State v. Ostrander, 
 ia-435. 
 
 864. But where, by challenges to nine of 
 the grand jurors, the number was reduced 
 below twelve, held, that the court should, 
 upon application of the district attorney, 
 have ordered the vacancies in thegraad jury 
 tobfe.fiUed: State V. Gm-hm-t, K-315. 
 
462 
 
 CRIMINAL LAW, III, 7, b. 
 
 Grand jury. — Finding and presenting indictment. 
 
 865. So where six grand jurors were chal- 
 lenged, it was held not error to reorganize 
 the jury and fiU up the panel: State v. 
 Mooney, 10-506. 
 
 866. If a member is discharged from serv- 
 ice upon the grand jury, his place should 
 be flUed: Norris' Souse v. State, 3 G. Gr., 
 513. 
 
 867. Where, by reason of the sustaining 
 of challenges to individual jurors, the panel 
 is left with a less number than fifteen jurors 
 qualified to act in the case in which the chal- 
 lenges have been allowed, it is competent for 
 the court to order the panel to be filled by an 
 addition of the requisite number of jurors to 
 act only in such case ; and it is the duty of the 
 court to thus fill the panel where by chal- 
 lenges it is reduced to less than twelve, but 
 it is not error to refuse to thus fiU the panel 
 where twelve or more of the regiilar jurors 
 remain unchallenged: State v. Shelton, 64- 
 333. 
 
 868. Error not cured by conviction : The 
 fact that defendant is convicted does not cure 
 any error in refusing him the privilege of 
 challenging grand jurors: State v. Osborne, 
 61-830. 
 
 869. The impaneling is the final forma- 
 tion by the court of the grand jury, the act 
 immediately preceding the swearing of the 
 jury which ascertains who are to be sworn : 
 State V. Ostrander, 18-435, 446. 
 
 b. Finding mid presenting indict- 
 ment. 
 
 870. Investigation of ofBcers: Although 
 it is by statute (Code, g 4278) made the special 
 duty of the grand jury, among other things, 
 to inquire into wilful and corrupt misconduct 
 in office of county officers, yet the grand ju- 
 rors cannot report to the court the result of 
 such inquiry otherwise than by indictment, 
 and the members of a grand jury charging a 
 county officer with misconduct otherwise 
 than by indictment may render themselves 
 liable to an action for libel : Rector v. Smith, 
 11-303. 
 
 871. KeceiTing' improper evidence: The 
 examination of an incompetent witness by 
 the grand jury will not vitiate the indictment : 
 State V. Tucker, SO-508. 
 
 872. Witnesses: Under statutory provis- 
 ion, where defendant has been bound over be- 
 
 fore a committing magistrate and the minutes 
 of the examination have been returned, the 
 grand jury may find an indictment upon 
 such minutes without having the witnesses 
 again before them : State v. Rodman, 63-456. 
 
 873. Where an indictment is set aside and 
 the case recommitted to the same grand 
 jury, they may consider evidence of witnesses 
 who have already been before them without 
 their being recalled : State v. Clapper, 59-279. 
 
 874. Secrecy: The statutory provision 
 (Code, § 4384) enjoining secrecy on the mem- 
 bers of the grand jury as to their proceed- 
 ings is general and without limit as to time, 
 and a grand juror cannot make affidavit to 
 the fact that twelve jurors did not concur in 
 finding a bill : State v. Oibbs, 39-318. 
 
 875. The fact that a bailiff was present in 
 the grand jury room during their proceed- 
 ings, though not when the final vote was 
 taken, held not sufficient to affect the valid- 
 ity of the indictment : State v. Kimball, 29- 
 267. 
 
 876. Returning minutes of testimony: 
 The minutes need not be attached to, or 
 made a part of, the indictment, and a mere 
 failure to file the same should not deprive 
 the state of its evidence : State v. Postlemait, 
 14r-446. 
 
 877. It is sufficient that they be returned 
 into court and filed with the clerk: State v. 
 Hamilton, 43-655. 
 
 878. That they are handed to the clerk and 
 deposited with him sufficiently constitutes a 
 filing : State v. Ouisenhause, 20-337. 
 
 879. That the minutes include testimony 
 taken in other cases does not necessarily inval- 
 idate them: Ibid. 
 
 880. The minutes, when returned, become 
 a part of the record and cannot be impeached 
 by affidavits : State v. Little, 43-51. 
 
 881. Failure of the clerk to file the minutes 
 of testimony returned by the grand jury can- 
 not be raised by demurrer to the indictment: 
 State V. Briggs, 68-416. 
 
 882. If the minutes of testimony are re- 
 turned by the grand jury with the indict- 
 ment and placed by the clerk in his office, 
 and remain there as a part of the record, this 
 is a sufficient filing within the requirement 
 of the statute, although it would be better 
 practice for the clerk to indorse such minutes 
 as filed: Ibid. 
 
CRIMINAL LAW, III, 7, b. 
 
 463 
 
 Grand jury.— Finding and presenting indictment. 
 
 883. The minutes of the testimony thus 
 returned by the grand jury cannot be intro- 
 duced as independent evidence on the trial : 
 State V. Ostrander, 18-435. 
 
 884. Nor are such minutes admissible to 
 impeach a witness on the trial by showing a 
 conflict between his evidence and that ap- 
 pearing to have been given by him before 
 the grand jury : State v. Hayden, 45-11. 
 
 885. The fact that the minutes of the evi- 
 dence returned by the gi-and jury do not 
 support the indictment is not ground for 
 quashing it or setting it aside : State v. Har- 
 ris, 36-368. 
 
 886. Although the minutes of the evidence 
 taken before the committing magistrate are 
 not certified to as required by statute in such 
 cases, yet. if the grand jury act upon such 
 minutes and return with the indictment a 
 memorandum of the testimony thus submit- 
 ted to them, it will be presumed that they 
 had before them sufficient evidence that the 
 minutes on which they acted were true min- 
 utes of the evidence before the magistrate, and 
 the witnesses whose evidence is thus returned 
 and whose names are properly indorsed upon 
 the indictment cannot be excluded from testi- 
 fying on the trial : State v. Kepper, 65-745. 
 
 887. Indorsing: names of tvitnesses on in- 
 dictment: The objection that the names of 
 witnesses examined before the grand jury 
 are not indorsed on the indictment should be 
 raised in the trial court or it will be regarded 
 as waived: Harriman v. State, 3 G. Gr., 370. 
 
 888. Names of witnesses before the grand 
 jury who do not give any material testi- 
 mony, and the minutes of whose testimony 
 are not returned, need not be indorsed on the 
 ibdictment : State v. Little, 42-51. 
 
 88t>. Affidavits cannot be received to show 
 that witnesses whose names are not indorsed, 
 and minutes of whose evidence are not re- 
 turned, were examined before the grand 
 jury: Ibid. 
 
 890. It is not error in the court to permit, 
 upon motion of the district attorney, an in- 
 dorsement to be made on the back of the in- 
 dictment of the name of a witness who has 
 been before the grand jury : State v. Robin- 
 son, 47-489. 
 
 That witnesses whose names are not in- 
 dorsed on the indictment, and the minutes of 
 whose evidence are not returned with the in- 
 
 dictment, cannot be called by the prosecution 
 on the trial except upon notice having been 
 given; and also as to what is a sufficient 
 indoi'sement of witnesses' names, so as to en- 
 title prosecution to call them, see infra, 
 %% 1171-1180. 
 
 891. Indorsing^ name of private prosecu- 
 tor: The requirement of statute (Code, 
 § 4393) that the name of a private prosecutor 
 at whose instance the indictment is found 
 shall be indorsed thereon is directory and for 
 the purpose of enabling the court to tax the 
 costs against such prosecutor in case the 
 prosecution fails. The requirement of stat- 
 ute that a prosecution for adultery shall be 
 commenced only on complaint of the hus- 
 band or wife of the offending party does not 
 render it necessary that the name of such 
 husband or wife be indorsed on the indict- 
 ment as prosecutor : State v. Briggs, 68-416. 
 
 892. Indorsement by foreman: An in- 
 dorsement of the name of the foreman giving 
 the initials of his Christian name instead of 
 his full name, held sufficient: State v. 
 Groome, 10-308. 
 
 893. The requirement that the foreman's 
 name be subscribed to the indorsement of " a 
 true bill " is merely directory, and if it other- 
 wise appear that the indictment was properly 
 returned by the grand jury, the absence of 
 the proper indorsement by the foreman can- 
 not be taken advantage of after conviction : 
 Wau-kon-chaw-neek-haw v. United States, 
 Mot., 832. 
 
 894. Presentation to the conrt: The re- 
 quirement that the indictment must be pre^ 
 sented, etc., is directory only, and a failure 
 of the clerk to make the indorsement on the 
 indictment wiU not invalidate the proceed- 
 ings (explaining State v. Glover, 3 G. Gr., 
 249): State v. Axt, 6-511; State v. Shepard, 
 10-136. 
 
 895. In the absence of an affirmative shoTf - 
 ing to the contrary, it will be presumed that 
 the requirements of the statute as to the pres- 
 entation were complied with : State v. Mclrv- 
 tire, 59-367. 
 
 896. Where defendant moved to strike the 
 indictment from the files because it had been 
 altered by erasure and insertion of other 
 words, ?ield, that the affidavits introduced 
 disproved the defendant's allegation: State 
 V. Hughes, 58-165. 
 
46i 
 
 CRIMINAL LAW, III, 7, b; 8. 
 
 Indictment ; presentment ; form and requisites. 
 
 897. Indorsement by the clerk: No record 
 of the filing of the indictment, other than 
 the indorsement of the clerk on the indict- 
 ment itself, need be made, at least not until 
 after the arrest of the accused: Wroelclege 
 V. State, 1-167 ; Herring v. State, 1-205. 
 
 898. It is not essential that the indorse- 
 ment on the indictment should recite that it 
 was presented by the foreman, in the pres- 
 ence of the grand jury, to the court : State v. 
 Jolly, 7-15. 
 
 899. A mistake in the indorsement on the 
 indictment as to the county in which it was 
 filed, held not a fatal erior, where it ap- 
 peared that it was presented and filed in the 
 proper county : State v. Smouse, 50-43. 
 
 900. Indorsements in particular cases, held 
 to be in substantial compliance with the pro- 
 visions of the statute as to presenting and 
 filing: Dixon v. State, 4 G. Gr., 381. 
 
 901. The court should be named in the in- 
 dorsement, although a failure to do so will 
 not be fatal : State v. Jolly, 7-15. 
 
 902. Failure of the clerk to file the indict- 
 ment will not invalidate the proceedings: 
 State V. Rivers, 58-102. 
 
 903. Substitution of lost indictment: If 
 the indictment is lost or abstracted after the 
 arraignment of defendant, the court may, 
 upon motion, substitute a copy and proceed 
 upon the record thus made, the same as upon 
 the original indictment: Ibid.; State v. 
 Stevisiger, 61-623. 
 
 904. Where, an indictment being lost, a 
 second one was returned for the same offense, 
 which being held defective, and the original 
 being found, a trial was had under the first 
 indictment, held, that such proceedings were 
 proper and could not be dismissed on the 
 ground of another indictment pending: Eed- 
 dan V. State, 4 G. Gr., 137. 
 
 905. Defect in indorsement or filing^: 
 The fact that it does not appear that the in- 
 dictment is indorsed ' ' a true bill " and marked 
 filed by the clerk cannot be raised for the 
 first time on appeal : Hughes v. State, 4:-554. 
 
 906. Waiver of objection: Objection on 
 account of irregularity in the finding of an 
 indictment is waived by pleading and sub- 
 mitting without objection to the verdict: 
 Harriman v. State, 2 G. Gr., 270. 
 
 907. Concurrence of grand jurors, how 
 shown: It is not necessary that tl^e record, 
 
 on appeal, state that the indictment was 
 found by a legal grand jury, nor that it con- 
 tain their names. The indorsement of the 
 indictment by the foreman as a true -bill is 
 conclusive evidence that it was duly found 
 and concurred in by a sufficient number of 
 the grand jury : Ibid. 
 
 908. Record conclusive: Where the record 
 shows that an indictment was found by a 
 full grand jury, the fact that such grand jury 
 was composed of less than the required 
 number of jurors cannot be shown by evi- 
 dence aliunde: Hall v. State, 4 G. Gr., 73. 
 
 909. The court cannot inquire into the 
 chai'acter of evidence upon which the grand 
 jury acted in finding an indictment. So held 
 where it was claimed that after the witnesses 
 were examined one of the grand jurors was 
 discharged and his place supplied by a by- 
 stander, the evidence, not being again pre- 
 sented : State v. Fowler, 52-103. 
 
 910. Affidavits of grand jurors and others 
 cannot be received to show that witnesses 
 testified before the grand jury whose names 
 are not indorsed on the indictment, and min- 
 utes of whose evidence are not returned: 
 State V. Little, 42-51. 
 
 911. AfBdavits of grand jurors are not 
 competent for the purpose of proving that an 
 indictment duly returned was not concurred 
 in by twelve grand juroi's : State v. Qibbs, 39- 
 318 ; State v. Mewherter, 46-88. 
 
 912. After an indictment has been pre- 
 sented and become a matter of record, it is 
 not competent for the grand jurors who 
 found it to testify that they did not vote to 
 find the bill, or how they voted, or what they 
 intended to find. Therefore held, that where 
 the indictment charged acts constituting 
 murder in the first degree, it was not compe- 
 tent to present affidavits of the grand jurors 
 showing that they had refused to find an in- 
 dictment for murder and intended to charge 
 only manslaughter, even though, in the intro- 
 ductory part of the indictment, the crime was 
 named as manslaughter : State v. Davis, 41- 
 311. 
 
 8. Themdictment, its form and requi- 
 
 913. Formal parts: The expressions "State 
 of Iowa" and "The State of Iowa" are es- 
 
CRIMINAL LAW, III, 8. 
 
 465 
 
 Indictment ; form and requisites. 
 
 sentially the same : Harriman v. State, 2 G. 
 Gr., 370. 
 
 914. An indictment in which the present- 
 ment is "in behalf of the state of Iowa" is 
 good, although the expression " In the name 
 and by the authority of the state of Iowa" 
 is a more appropriate style. It need not be 
 expressed in each proceeding in the conduct 
 of a prosecution, that it is made "in the 
 name and by the authority," etc. : Wrock- 
 lege v. State, 1-167. 
 
 915. An indictment improperly naming 
 the court, or failing to state the term thereof, 
 is not subject to demurrer on that ground : 
 State V. Schill, 37-263. 
 
 916. A mistake in the name of the state, 
 or in the spelling of the name of the county, 
 will not vitiate the indictment. These facts are 
 not such as to prejudice the substantial rights 
 of the defendant: State v. Gurlock, 14^444. 
 
 917. The fact that on the face of the in- 
 dictment there is no title to the action, in ac- 
 cordance with the form given by statute, 
 where the body of the indictment sets forth 
 the names of the parties, does not constitute 
 a valid objection thereto on motion or de- 
 murrer : State v. Mclntire, 59-264 ; State v. 
 Mclntire, 59-267. 
 
 918. It is not essential that the indictment 
 be signed by the district attorney: State v. 
 Rvby, 61-86; State v. Wilmoth, 63-380. 
 
 919. An indictment signed A. B., "Pros. 
 Atty. ^)-o tern.," etc., hdd sufficient: Wrock- 
 lege v. State, 1-167. 
 
 920. Laying the yenne: An indictment 
 commencing " The grand jury of the county 
 of Dubuque, in the name, etc., of the state of 
 Iowa," charging the burglarious entering, 
 etc., of a house "there situate,'' held to suf- 
 ficiently lay the venue in Dubuque county : 
 State V. Reid, 20-418. 
 
 921. An indictment for lai-ceny corre- 
 sponding in form to the statutory provision, 
 charging the offense as committed " in the 
 county aforesaid," held sufficiently specific 
 as, to the venue of the crime: State v. lAl- 
 lard, 59-479. 
 
 922. An indictment in the form specified 
 by statute sufficiently charges the offense as 
 having been committed in Iowa: State v. 
 Winstrand, 87-110. 
 
 923. Conclusion: In an indictment under 
 a statute, it is not necessary in the conclusion 
 
 Vol. 1 — 30 
 
 to refer specifically to the statute under 
 which the indictment is found : Zumhoff v. 
 State, 4 G. Gr., 536. 
 
 924. The formal ending of an indictment, 
 " and so the jurors, etc. , do say that the said," 
 etc., is but a legal conclusion, and will not 
 cure any defect in the charging part of the 
 indictment: State v. Parsons, 54-405. 
 
 925. A raistake in the conclusion of the in- 
 dictment in reciting the name of the person 
 injured, such name being correctly given in 
 the body of the indictment, held immaterial : 
 State V. McCunniff, 70 . 
 
 926. Requisites; stalement of facts: An 
 indictment must state facts constituting an 
 offense in language direct and certain as to 
 the circumstances which are necessary to 
 show a crime punishable by law. It cannot 
 be aided nor its omissions supplied by con- 
 struction: State V. Potter, 38-554; State v. 
 Chicago, B. & P. R. Co., 63-508. 
 
 927. Where the acts charged are such that 
 they are lawful under certain circumstances, 
 it is not sufficient to charge that they were 
 unlawfully done, but the existence of the 
 facts showing the acts to be unlawful must 
 be alleged : State v. Chicago, B. & P. R. Co. , 
 63-508. 
 
 928. Statutory modifications: The con- 
 stitutional provision requiring an indictment 
 on which to put defendant on tiial for a 
 crime does not make it necessary that such 
 indictment shall conform in every particular 
 to the requirements of the common law, but 
 such requirements may be modified by stat- 
 ute : State v. Bevaris, 37-178. 
 
 929. But the leading requisites of an in- 
 dictment at common law are not dispensed 
 with by statute: State v. Callendine, 8-388. 
 
 930. Defects not cured: The district at- 
 torney cannot, by making specifications after 
 arraignment upon indictment, cure a defect 
 therein consisting in a want of particularity 
 as to the acts constituting the crime : United 
 States V. Ross, Mor., 164. 
 
 931. A mere clerical eiTor which can bo 
 discovered and corrected by a casual reading 
 of the indictment itself will not render it 
 fatally defective : State v. Crawford, 66-318. 
 
 932. Immaterial defects: In general (by 
 statutory provision) the proceedings upon an 
 indictment are not to be affected by any de- 
 fects therein not tending to the prejudice of 
 
^6 
 
 CRIMINAL LAW, III, 8. 
 
 Indictment ; form and I'equiaites. 
 
 tbe substantial rights of the defendant upon 
 the merits: State v. Qurloak, 14-444; State 
 V. Emeigh, 18-123; State v. White, 32-17. 
 
 933. Description of the offense: It is suf- 
 ficient (by statutory provision) to describe the 
 offense in such a manner as to enable a jper- 
 son of common understanding to linow what 
 is intended and the court to pronounce judg- 
 ment: State V. Hockevberry, 30-504; State v. 
 Clope, 35-570. 
 
 934. The technical exactnessness of the 
 common law as enforced in criminal prosecu- 
 tions, whereby many guilty persons escaped 
 the just penalties due their crimes, and 
 which justly became the reproach of that 
 system of jurisprudence, has been wisely su- 
 perseded in this state by statutory provisions: 
 State V. Thompson, 19-299 ; State v. Johnson, 
 26-407. 
 
 935. So, if the proof offered in support of 
 the charge in an indictment is such as would 
 not mislead a person of common understand- 
 ing, it is competent: State v. Thompson, 19- 
 399. 
 
 936. Ordinary language is sufficient, if a 
 person of common understanding may know 
 therefrom what is intended : State i\ Stan- 
 ley, 33-526. 
 
 937. An indictment for larceny of bank 
 bills, stating that their number and denom- 
 inations are unknown, is sufficient : State v. 
 Boppe, 39-468. 
 
 938. A description of property in an indict- 
 ment for larceny as " $180 in bank bills usually 
 known and described as greenbacks,"' held 
 sufficient : State v. Hockenberry, 30-504. 
 
 939. Where an information charged the 
 illegal sate of beer, held, that the quantity 
 sold was immaterial and need not be alleged : 
 State V. King, 87-463. 
 
 940. Under an indictment for illegal sale 
 of intoxicating liquors, held, that the sum f or 
 which the illegal sale was made being imma- 
 terial, uncertainty in stating such amount 
 would not render the indictment bad : Clare 
 V. State, 5-509. 
 
 •941. Only such facts need be stated in the 
 .indictment as are required to be proved on 
 the -trial: Nash v. State, 3 G. Gr., 386, 394. 
 
 942. If the act is charged to have been 
 against the statute, it need not be charged 
 to have been done unlawfully : Ibid. 
 
 943. In the case of a misdemeanor, wliere 
 
 the facts related in the indictment appear to 
 have been unlawful, it is not necessary to 
 allege them to have been unlawfully done ; 
 Capps V. State, 4-503. 
 
 944. In a prosecution for illegal voting, the 
 indictment need not state the date of the 
 general election at which the crime is alleged 
 to have been committed, nor what officeis 
 were to be voted for at such election : State 
 V. Minnick, 15-133. 
 
 945. In charging a threat to kill, the fact 
 may be stated without setting out the words 
 used : State v. O'Mally, 48-501. 
 
 946. Matter of defense need not be nega- 
 tived in the indictment: State v. Williams, 
 70—. 
 
 947. Arabic figures: The use of Ai-abic 
 figures in place of words in an indictment 
 will not vitiate it : WinHeld v. State, 3 G. Gr., 
 339. 
 
 948. Numeral figures with the prefix A. 
 D. are a sufficient statement of the veai': 
 State V. Seamons, 1 G. Gr., 418. 
 
 949. Deadly weapon: Where an indict- 
 ment charges an assault as committed with 
 different weapons described as deadly, it is 
 immaterial whether it be proven that de- 
 fendant used one or all of such weapons; 
 State V. McClintock, 1 G. Gr., 393. 
 
 950. Under a statute prescribing puniah- 
 uient for assault with a deadly weapon, held, 
 that no other description of the weapon used 
 was essential: State v. Seamons, 1 G. Gr,, 
 418. 
 
 951. Under an indictment for an assault 
 with a deadly weapon, charging the assault 
 as made by throwing an axe, held, that the 
 court would take judicial notice of the fact 
 that an axe used in such a manner was a 
 deadly weapon, although such fact was not 
 averred: Dollarhide v. United States, Mor., 
 333. ' 
 
 952. Naming the offense: An indictment 
 which sufficiently describes the offense 
 charged will be good although the offense is , 
 not named therein: State v. Hessenkamp, 
 17-25 ; State v. Baldy, 17-39. 
 
 953. An indictment properly describing 
 the offense wiE be sufficient without naming 
 it, but naming the offense without stating 
 the facts constituting it will not be sufficient. 
 If the facts are properly stated, a wrong 
 name will not vitiate the indictment, but 
 
CRIMINAL LAW, III, 8. 
 
 467 
 
 Indictment ; form and reqmsites. 
 
 ■will'be mere surplusage : State v. 8han\ 35- 
 575; State V. Davis, 41-311. 
 
 054. Indictments under statute: An in- 
 dictment under a statute is sufficient if it 
 follows the language of the statute: State 
 V. Seamqns. 1 G. Gr., 418; State v. Chambers, 
 a G. Gr., 808; Romp v. State, 3 G. Gr., 276; 
 State V. Bretcer, 53-735. 
 
 955. If the indictment chai'ges the crime 
 substantially in the words of the statute, or 
 in language equivalent thereto, it is suf- 
 iicient: Buckley v. State, 2 G. Gr., 162 ; Mun- 
 son V. State, 4 G. Gr., 488. 
 
 956. An indictment following the statute, 
 and using the language there employed in 
 defining the offense of unlawfully exposing 
 a child with intent to abandon it, held suffi- 
 cient: State V. Smith, 46-670. 
 
 95 7. Where an offense is created by stat- 
 ute, it is sufficient to charge it in the words 
 of the statute, unless the words used are 
 such that they do "not necessarily charge 
 the offense. Therefore, held, that an in- 
 dictment charging that defendant did " se- 
 duce and carnally know and debauch " was 
 sufficient, without charging the means em- 
 ployed in the seduction: State v. Gurran, 
 51-112. 
 
 958. Language in a particular case }ield 
 sufficiently equivalent to that used in the 
 statute in describing the offense of miscon- 
 duct in office by public officers: State v. 
 Coulee, 25-237. 
 
 959. Where the statute uses descriptive 
 language to define a public offense, that lan- 
 guage must be followed or words of the same 
 meaning must be used : Fonts v. State, 4 G. 
 Gr., 500. 
 
 960. While it is not necessary that the in- 
 dictment should follow the very language of 
 the statute, it should charge the facts and 
 circumstances constituting the offense in 
 substantial compliance with the statute: 
 Eeddan v. State, 4 G. Gr., 137. 
 
 961. If the statute contains evident tau- 
 tology, or terms some of which necessarily in- 
 clude the others, it is not essential that all 
 be used. It is sufficient if the indictment 
 fully describe the offense : United States v. 
 Lapoint, Mor., 146. 
 
 96H. The substance of the statutory defi- 
 nition must be contained in the indictment : 
 United States v. Dickey, Mor., 413. 
 
 963. The words used must have the same 
 substantial meaning and import as those used 
 in the statute, and the material facts which 
 constitute the offense must be stated with 
 such a degree of. certainty and in such a 
 manner as to enable a person of common un- 
 derstanding to know what was intended and 
 the court to pronounce judgment upon a. 
 conviction according to the law of the case : 
 State V. Allen, 33-491. 
 
 984. Therefore, where an illegal sale of 
 liquor was charged, held, that the name of 
 the person to whom the sale was made should 
 have been stated, although the statute simply 
 provided for the punishment of. any person 
 selling or giving liquor "to another person :" 
 Ibid. 
 
 965. The facts constituting a public offense 
 must be charged in the indictment, and 
 when a statute creating such offense de- 
 scribes it in general terms constituting » 
 legal conclusion, the indictment must spe- 
 cifically describe the offense so as to bring 
 it within the legal conclusion: State v. 
 Brandt, 41-593, 607. 
 
 966. As to whether, in a prosecution of a 
 public officer for loaning public money, an 
 indictment stating that defendant ' ' loaned " 
 a certain sum of money " without authority 
 of law," etc., was too general, and should 
 have stated the person to whom tlie money 
 was loaned, the court was equally divided : 
 Ibid.. 609, 617. 
 
 967. Sep.arate counts: A defendant can- 
 not be charged with two distinct offenses in 
 a single count. In felony, if two or more 
 distinct offenses are contained in the same 
 indictment though in different counts, it may 
 be quashed or the prosecutor compelled to 
 elect on which charge he will proceed ; but 
 such election will not be required to be made 
 where several counts are introduced solely 
 for the purpose of meeting evidence as it 
 may transpire, the charges being substan- 
 tially for the same offense: State v. McPher- 
 son, 9-53. 
 
 968. After the jury has returned a ver- 
 dict of guilty on one count and not guilty on 
 others, and a motion for arrest of judgment 
 and a new trial, based, among other things, 
 upon this alleged misjoinder of offenses, has 
 been overruled, and there is nothing to show 
 on appeal that the several counts relate to 
 
468 
 
 CRIMINAL LAW, III, 8. 
 
 Indictment ; form and requisites. 
 
 separate transactions, the objection on that 
 ground will not be sustained : Ibid. 
 
 969. In charging the same offense in dif- 
 ferent forms, the pleader is not compelled to 
 use alternative forms of expression : State v. 
 Watrous, 13-489. 
 
 970. An indictment charging the same 
 transaction in different forms in separate 
 counts is not objectionable for duplicity: 
 State V. Brannon, 50-373 ; State v. House, 
 55-466. 
 
 971. Requiring prosecution to elect: 
 Where an indictment is not otherwise as- 
 sailed for charging distinct crimes, the pros- 
 ecutor ought to be required to elect upon 
 which charge he will proceed : State v. Fid- 
 ment, 35-541, 
 
 972. Duplicity; clmrgingdistiiictcrimes: 
 Although the statute (Code, ^ 4300) prohibits 
 the charging of more than one offense in the 
 same indictment, yet where two counts of 
 the indictment chai'ged two distinct offenses, 
 one committed in the county where the in- 
 dictment was found, and the other in an- 
 other county, field, that the latter count was 
 mere sui-plusage and did not render the in- 
 dictment bad : State v. Smouse, 50-43. 
 
 973. The same rule is applicable in case of 
 an information : State v. Smouse, 49-634. 
 
 974. Objection to the indictment on the 
 ground of duplicity cannot be raised for the 
 first time in the supreme court: State v. 
 Henry, 59-391. 
 
 975. And lield, that where one of the 
 counts was dismissed before the introduction 
 of any evidence, and the plea of guilty en- 
 tered as to the remaining count, the defect 
 in the indictment wa,s cured and the defend- 
 ant properly convicted : State v. Buck, 59- 
 382. 
 
 976. An indictment charging a conspiracy 
 to rob and steal does not necessarily charge 
 more than one offense. The fact that the 
 conspiracy, if consummated, would involve 
 several distinct felonies would not render the 
 indictment for the conspiracy bad for duplic- 
 ity: State V. Sterling, 34-443; State v. Ken- 
 nedy, 63-197. 
 
 977. Where the indictment charges a con- 
 spiracy to commit a crime and also the com- 
 mission of the overt act, it appearing that it 
 was not intended to charge nor put defend- 
 ant on trial for any other crime than that of 
 
 conspiracy, the indictment will not be con- 
 sidered objectionable: State v, Or-iniston, 66- 
 143. 
 
 978. But where the indictment charged 
 other crimes outside of the conspiracy and 
 not merely the overt act, held, that it was 
 fatally defective : State v. Kennedy, 63-197, 
 
 979. An indictment charging an assault 
 and battery does not charge two offenses. 
 Every battery includes an assault: State v. 
 Twogood, 7-252. 
 
 980. Nor does an indictment charging as- 
 sault and battery with intent to commit great 
 bodily injury charge more than one offense: 
 Cokely v. State, 4-477. 
 
 981. Charging threats to kill two persons 
 does not render the indictment objectionable 
 as charging two offenses, the threat being the 
 gist of the offense: State r. O'Mally. 48-501. 
 
 982. Coiupouiid offenses: When the same 
 act or transaction at the same point of time 
 constitutes two or more, offenses, it is a com- 
 pound offense, and the different crimes thus 
 committed may be charged in the same in- 
 dictment, under Code, S 4300; but the two 
 offenses, of breaking and entering with intent 
 to commit larceny, and the crime of larceny 
 alone, cannot be so committed by the same 
 act as to constitute such compound offense : 
 State V. Ridley, 48-370: State v. Shades, 48- 
 702. 
 
 983. In such a case the crime of breaking 
 and entering with unlawful intent is com- 
 pletely consummated before the larceny is 
 committed : State i). Ridley, 48-370. 
 
 984. Burglary is not a compound offense 
 including larceny, and an indictment charg- 
 ing both burglary and larceny is improper, 
 as charging two offenses: State v. McFar- 
 land, 49-99. 
 
 985. Where an indictment charges break- 
 ing and entering with felonious intent, and 
 the felonious taking, stealing and carrying 
 away of personal property, the charge of 
 stealing may be regarded as a mere pleading 
 of evidence, or surplusage ; and if the case is 
 tried as upon the indictment for the breaking 
 and entering with the criminal intent, a con- 
 viction thei-eunder will not be erroneous on 
 the ground of duplicity in the indictment. 
 It is otherwise where under such indictment 
 the defendant is convicted of larceny: State 
 V. Shaffer, 59-290. 
 
CRIMINAL LAW, III, 8, 
 
 469 
 
 Indictment ; form and requisites. 
 
 98C. The offense of lai-ceny in the night- 
 time from a dwelling-house, and that of lar- 
 ceny from a dwelling-house in the day-time, 
 are not different offenses from that of larceny, 
 but differ from it only in the circumstances 
 affecting the degree of punishment, and they 
 may be charged in the same indictment: 
 State V. Elsham, 70 . 
 
 987. An indictment charging in one coant 
 forgery, and in a second the uttering of the 
 forged instrument, charges two offenses, and 
 is bad (overruling State v. Nichols, 38-110): 
 State V. McCormack, 56-585. 
 
 988. Rape, committed by a man upon a 
 woman who is related to him within the pro- 
 hibited degrees (Code, § 4030), does not consti- 
 tute incest, and an indictment charging both 
 offenses is bad for duplicitj' : State v. Thomas, 
 53-214. 
 
 989. Distinct acts of adultery, committed 
 with different persons, could not be charged 
 in the same indictment ; but where different 
 acts of the same person were charged, held, 
 that as any such criminal act, committed 
 within the period of limitations, could be 
 proven under an indictment charging but 
 one act of adultery, the allegation that adul- 
 tery with the person named was committed 
 on divers other days might be rejected as 
 surplusage, and the indictment was not ob- 
 jectionable for duphcity : State v. Briggs, 68- 
 416. 
 
 990. Different violations of ordiniinces: 
 It may be provided in an ordinance that any 
 number of violations may be included in one 
 prosecution: Eldora v. Burlingame, 6S-83. 
 
 991. Continuing- oir<?nse.s: In an indict- 
 ment for retailing intoxicating liquors by the 
 dram, any number of acts may be charged 
 without constituting duplicity, the offense 
 being a continuing one: Zumhoff v. State, 
 4 G. Gr., 526. 
 
 992. Under an ordinance making each 
 separate unlawful sale of intoxicating liquor 
 an offense, held, that an information charg- 
 ing the sale of liquor to persons unknown 
 was not bad for duplicity, as it, in effect, 
 charged one sale to several persons jointly : 
 State V. King, 37-462. 
 
 99.3. Viu-ious acts constitiitin? same of- 
 fense: Where a statute contains several 
 things in the alternative, an indictment 
 charging all of them will not be considered 
 
 as charging more than one offense : State v. 
 Coaster, 10-45.5 ; State v. Myers, 10-448. 
 
 994. So an indictment charging the utter- 
 ing, passing, and tendering, etc. , of a counter- 
 feit bill (Code, § 3922) charges but one 
 offense : State v. Barrett, 8-536. 
 
 995. And so held, in case of an indictment 
 for a nuisance, charging the commission of 
 all the acts of illegally selling intoxicating 
 liqucrs, keeping the same for sale, etc., etc., 
 within the terms of Code, gs 1543, 4091: 
 State V. Dean, 44-648; State v. Spurbeek, 
 44-667 ; State v. Winebrenner, 67-330. 
 
 90(!. The prosecution in such cases will not 
 be required to support and cover all the al- 
 ternative charges with its proof, but only so 
 much as will show that the offense was com- 
 mitted in some of the ways specified: State 
 V. Coaster, 10-453. 
 
 997. Under a statute providing a punish- 
 ment for every person who shall buy, re- 
 ceive or aid in the concealment of stolen 
 goods, the indictment may charge the buy- 
 ing, receiving and aiding without duplicity : 
 State V. Abrahams, 6-117. 
 
 998. So under a statute providing a pun- 
 ishment for letting a house, knowing that 
 the lessee intends to use it for improper pur- 
 poses, and knowingly permitting the lessee 
 to use it for such purposes, an indictment 
 charging both the letting and the knowingly 
 permitting the prohibited use is not improper : 
 Ibid. 
 
 999. Under a statute providing a punish- 
 ment for maliciously injuring and defacing 
 a dwelling-house, held, that an indictment 
 charging defendant with maliciously injur- 
 ing and defacing a dwelling was not objec- 
 tionable for duplicity : State v. Hockenberry. 
 11-369. 
 
 1000. Under a statute providing for the 
 punishment of any person who shall mali- 
 ciously kill, maim or disfigure an animal, lield, 
 that an indictment charging that defendant 
 did maliciously maim and disfigure an ani- 
 mal was not objectionable : State v. Harris. 
 11-414. 
 
 100 1. Under a statute prohibiting the keep- 
 ing for sale or the selling of intoxicating 
 liquors, held, that an indictment charging 
 both did not charge distinct offenses : State 
 V. Becker, 20-438. 
 
 1002. Under a statute making it a nui- 
 
470 
 
 CRIMINAL LAW, III, 8. 
 
 Indictment ; form and requisites. 
 
 sance to manufaeture, sell, or keep with in- 
 tent to sell, intoxicating liquors contrary to 
 law, either or all of such acts may without 
 duplicity be charged in the same indictment : 
 State V. Baughman, 20-497. 
 
 1003. Objection for duplicity, when 
 raised: The court should, on application, al- 
 low the defendant to withdraw his plea of 
 not guilty for the purpose of making objec- 
 tion to the indictment on the ground of du- 
 plicity. Indeed there would be no impro- 
 priety, it seems, in requiring an election to 
 be made in such case, without the plea 
 being withdrawn: State v. Abrahams, 6-117. 
 
 That defendant may be convicted of any 
 ofEense necessarily included in that charged 
 in the indictment, see infra, %% ISSS-ISSS. 
 
 1004. Surplusage: Where a defective 
 averment may, without detriment to the in- 
 dictment, be wholly omitted, it may be con- 
 sidered as surplusage and disregarded. It is 
 only an inconsistency in the material allega- 
 tions that will vitiate the indictment : State 
 V. Freeman, 8-438. 
 
 1005. An unessential pw-tion of the indict- 
 ment may be rejected as surplusage, if with- 
 out it the allegations are sufficient to charge 
 the offense : State v. Ormiston, 66-143. 
 
 1008. Where a portion of tlie indictment 
 might have been omitted without vitiating 
 it, such portion may be considered as surplus- 
 age, and its insertion will not render the in- 
 dictment defective: State v. Ansaleme, 15-44. 
 
 1007. Where, in an indictment for embez- 
 zling the funds of a corporation, it was al- 
 leged that defendant v/as over sixteen years 
 of age, that fact not being material in case 
 of ombezzlement by the agent of a corpora- 
 tion, held, that the allegation was surplusage 
 and might be disregarded: State v. Goode, 
 68-593. 
 
 1008. Where an information for illegal 
 sale of liquors charged the selling and giving, 
 held, that although the giving was not pun- 
 ishable, the charge was sufficient, and the 
 allegations as to the giving would be treated 
 as void and not affecting the information: 
 State V. Finan, 10-19. 
 
 1009. Words in a particular case held to be 
 surplusage : State v. Schilling, 14-455. 
 
 1010. Where an information charges two 
 classes of nuisances, one of which is punish- 
 able under an ordinance under which the 
 
 prosecution is commenced, and the other is 
 not thus punishable, the allegations as to the 
 latter will be deemed surplusage and will not 
 affect the charge of the ofEense which is 
 within the jurisdiction of the court to punish 
 upon the information : Eldorav. Burlingame, 
 03-32. 
 
 1011. An information for the seizure of in- 
 toxicating liquors on the ground that they 
 were to be sold in violation of law stated that 
 they were '• intended to be sold in violations 
 of the provisions of chapter six, Code of 
 Iowa," there being many chapters of that 
 number in said Code ; held, that the informa- 
 tion was defective, and that although the al- 
 legation that the liquors were intended to be 
 sold in violation of law would have been suf- 
 ficient, the other portions of the indictment 
 could not be rejected as surplusage: State v. 
 Thompson, 44^399. 
 
 1012. Needless particularity: Where a 
 person or thing necessary to be mentioned in 
 an indictment is described with unnecessary 
 particularity, all the circumstances of the 
 description must be proved: State v. New- 
 land, 7-343 ; State v. Hesner, 55-494. 
 
 1013. So held where the kind of liquor 
 sold was specified in an indictment for illegal 
 sale : State v. Hesner, 55-494. 
 
 1014. Therefore, under an indictment for 
 passing counterfeit bills on a certain bank, 
 held, that the existence of such bank must be 
 established, although by statutory provision 
 the name of the bank need not have been 
 charged : State v. Newland, 7-342. 
 
 1015. Where the place is stated in the in- 
 dictment as a matter of local description and 
 not of venue, it is necessary to prove it as 
 laid although it need not have been stated: 
 State V. Crogan, 8-523. 
 
 1016. But on the same point the supreme 
 court was equally divided in State v. Ver- 
 den, 34-136. 
 
 1017. Videlicet: Where time is imma- 
 terial, if alleged under a videlicet, it need not 
 be proved, and a repugnance between the al- 
 legations under the videlicet and other por- 
 tions of the indictment will not vitiate it. K 
 time is material, even though it be alleged 
 under the videlicet, it is conclusive and trav- 
 ersable, and if repugnant to the premises 
 will vitiate the indictment: State v. Free- 
 man, 8-428. 
 
CRIMINAL LAW, HI, 8. 
 
 471 
 
 Indictment ; form and requisites. 
 
 1018. Exception or proviso: It is only- 
 necessary to negative an exception when it 
 occurs in the same clause of the act which 
 creates the offense: Romp v. State, 3 G. Gr., 
 376. 
 
 1019. It is only necessary that the indict- 
 ment should negative exceptions made in the 
 enacting clause. Matters of exception con- 
 tained in a subsequent act need not be nega- 
 tived, but must be pleaded and proven by 
 ilefendant if relied on as a defense : State v. 
 Beneke, 9-203. 
 
 1020. An exception in the purview of an 
 act must be negatived in pleading, but a 
 jffoviso need not, though found in the same 
 section, if it is not referred to in and en- 
 grafted upon the enacting clause. State v. 
 Stapp, 39-551. 
 
 1021. Therefore under a former statutory 
 provision that the prohibition of the sale of 
 intoxicating liquors should not apply to wine 
 from fruit grown in the state, etc. , lield, that 
 an indictment for illegal sale of liquor need 
 not allege that it was not made from native 
 fmit: Ibid.; State v. Curley, 33-359; State 
 V. Miller, 53-84. 
 
 1022. Where a criminal offense is created 
 by statute, no presumption arises of an in- 
 tention to render any person liable not clearly 
 within the provisions of the statute. But 
 if the statute is simply declarative of a com- 
 mon law offense, and limitations are annexed 
 as to the persons to be prosecuted or the 
 manner of prosecution, one claiming exemp- 
 tions from its penalty must show himself 
 clearly within its limitations : State v. Roth, 
 17-336. 
 
 1023. If provisos and exceptions are con- 
 tained in distinct clauses, it is not necessary 
 to state in the indictment that the defendant 
 does not come within the exceptions or to 
 negative the provisos it contains: State v. 
 Williams, 20-98. 
 
 1024. Therefore, held, that an indictment 
 for bigamy need not negative the absence of 
 defendant's former husband or wife for the 
 statutory period, etc., stated in a subsequent 
 section of the statute as an exception : Ibid. 
 
 As to burden of proving exemption under 
 a proviso, see infra, § 1594. 
 
 1025. Venue: In an indictment for retail- 
 ing intoxicating liquors by the dram, held, 
 that it was sufficient to state the crime as 
 
 committed within the county, without speci- 
 fying the particular premises or the city or 
 town within which the act waa done: Zurn- 
 hoffv. State, 4 G. Gr., 536, 
 
 1026. Where the county and state are 
 named in the margin at the commencement 
 of the indictment, and the county is referred 
 to as "said county," and the indictment 
 avers that the grand jurors were duly se- 
 lected, impaneled, and sworn, the indict- 
 ment sufficiently shows that it was found by 
 a legal grand jury : Ibid. 
 
 1027. In an indictment for the illegal 
 sale of liquors, it is not necessary to describe 
 the specific location of the building where 
 the sale was made : State v. Becker, 30-438. 
 
 102s. Under an indictment for bigamy, 
 alleging that the void marriage was cele- 
 brated at a particular place, held, that a find- 
 ing of such marriage anywhere within the 
 same state would support the allegations of 
 the indictment. The allegation as to the 
 place of marriage not being essential as a 
 jurisdictional matter, or as establishing the 
 specific character of the offense, need not be 
 proved as laid : State v. Nadal, 69-478. 
 
 1029. Time: The time alleged in the in- 
 dictment need not be proved as laid. There- 
 fore, held, that under an indictment for ille- 
 gal sale of intoxicating liquors, the selling 
 at another time than that claimed in the 
 indictment would support a conviction : State 
 V. Knouse, 33-365. 
 
 ] 030. Where defendant was charged under 
 several counts with distinct offenses of sell- 
 ing intoxicating liquors on different days 
 specified, held, that it was not error to re- 
 fuse to charge the jury that, to find him 
 guilty as charged in each count, they must 
 find that he sold to the person and at the 
 time therein charged: State v. Mailing, 11- 
 239. 
 
 1031. It is not material that the time at 
 which the offense is alleged to have been 
 committed should be so charged as to bring 
 it within the statutory period of limitation 
 for the prosecution of the offense. The pre- 
 cise time need only be stated in indictments 
 for acts which were only made criminal at 
 some paitioular time: State v. Deitrick, 51- 
 467. 
 
 1032. That the allegation as to the time 
 of commission of the offense does not bring 
 
472 
 
 CRIMINAL LAW, III, 8. 
 
 Indictment ; form and requisites. 
 
 it within the statutory period of limitation 
 15 not a ground of demurrer to the indict- 
 ment: State V. Hussey, 7-409; State v. 
 Grooms, 10-308. 
 
 1033. Where an indictment charges that 
 the offense was committed on a day certain, 
 the prosecution ma}' still prove the commis- 
 sion of the offense at a time prior to the day 
 named and within the period of limitation : 
 State V. Kirhpatrick, 63-554. 
 
 1034. Where the prosecution introduced 
 evidence that the crime was committed at 
 the particular time alleged in the indictment, 
 and defendant's evidence was to the effect 
 that he was not at the place where the of- 
 fense was alleged to have been committed 
 within three or four days of such time, held, 
 that the jury were properly instructed that 
 they might convict if they found the crime 
 was committed on another day than that 
 charged, and within the time prescribed by 
 the statute of limitations for the prosecution 
 of the crime : State v. Bell, 49-440. 
 
 1035. Where it is averred in an indictment 
 that an offense was committed on a particu- 
 lar date, the state is permitted to prove its 
 commission, on that or any other date, before 
 the finding of the indictment, within the 
 time jwescribed by the statute of limitations 
 within which an indictment for the offense 
 may be found : State v. Johnson, 69-623. 
 
 1036. The same rule governs when the 
 prosecution is by information : Ibid. 
 
 And further, as to the statute of limita- 
 tions, see supra, %% 783-788. 
 
 1037. Continuing offenses: An indict- 
 ment charging a nuisance as committed ' ' on 
 or about " a day specified is sufficient as to 
 time: Cokely v. State, 4-477. 
 
 1038. In an indictment for a continuing 
 offense, such as keeping a nuisance, no par- 
 ticular day need be alleged, but the doing of 
 the prohibited act may be laid wi^ a con- 
 tinuando. If so alleged, the trial will prevent 
 another prosecution for the act chai'ged at 
 any time previous to the finding of the in- 
 dictment: Our House V. State, 4 G. Gr., 172. 
 
 1039. Time malci'ial: While time is not 
 material, yet where the offense of selling in- 
 toxicating liquors on a certain day was 
 alleged and defendant pleaded guilty, held, 
 that the time thus specified would determine 
 the law under which the court was author- 
 
 ized to act, the law as to method of trial 
 having been changed previous to the time 
 alleged for the comm^ission of the offense: 
 State v. Rollet, 6-585. 
 
 1040. While the allegation of the day upon 
 wliich the offense was committed is not^'usu- 
 ally material, yet if, in an indictment for 
 perjury, it is alleged that the oath was ad- 
 ministered by a certain person as an officer 
 before the date when, by law, he became 
 entitled to enter upon the discharge of the 
 duties of his office, the time will be deemed 
 material and the indictment bad: State v. 
 Phippen, 62-54. 
 
 1041. Name of defendant: It is only where 
 the defendant's name cannot be discovered 
 that the state is permitted to describe him by 
 a fictitious name, with the statement that his 
 name is unknown. The description of the 
 defendant as "a man in Turner Hall whose 
 name to the gi-and jury is unknown,'" held 
 not sufficient: Geiger v. State, 5-484. 
 
 As to effect of misnomer and method of 
 taking advantage thereof, see infra, §§ 1063, 
 1064. 
 
 1042. Name of person injnred: Under the 
 provisions of the statute (Code, § 4302), nei- 
 ther the name of the party inj ured, as used 
 in the indictment, nor a name having the 
 same sound, need necessarily be proved: 
 State V. Emeigh, 18-122. 
 
 1043. And held, that an indictment for 
 stealing from the person certain property, in 
 which the property was charged to be that 
 of the party from whose person it was stolen, 
 while the proof showed it to belong to hini 
 and another jointly, was sufficient: State v. 
 Cuningham, 21-433. 
 
 1044. Where, in an indictment for resist- 
 ing an officer, the name of the officer was 
 misstated, held, that under the provisions of 
 the statute above referred to, an erroneous 
 allegation respecting the name of the person 
 injured was not material, and a variance 
 with respect thereto was not fatal : State v. 
 Flynn, 42-164. 
 
 1045. Where an indictment for robbery 
 incorrectly stated the name of the person 
 alleged to have been robbed, held, that a con- 
 viction of defendant thereunder was not im- 
 proper: State V. Carr, 48-418. 
 
 1046. In an indictment for the illegal sale 
 of intoxicating "liquors, it is not necessary to 
 
CRIMINAL LAW, III, 8; 9, a. 
 
 473 
 
 Indictment. — Proceedings before trial. — Arraignment. 
 
 set out the names of the persons to whom the 
 liquor was sold : State v. Becker, 20-438. 
 
 1047. Under an information charging sales 
 of intoxicating liquors to pei'sons unknown, 
 lield, that proof of a sale to one person did not 
 constitute a variance : State v. King, 37-462. 
 
 1048. A misnomer of the person assaulted 
 will not render an indictment for assavilt 
 with intent to kill fatally defective, it ap- 
 pearing that defendant was in no way prej- 
 udiced by such mistake : State v. Crawford, 
 66-318. 
 
 1049. Where, in an indictment for em- 
 bezzlement, the name of the corporation 
 whose property was alleged to be embezzled 
 was erroneously stated, by reason of using the 
 word " railroad " therein in place of railway, 
 held, that such slight error was immaterial : 
 State V. Goode, 68-593. 
 
 1050. A mistake in stating in the conclu- 
 sion of the indictment, the name of the per- 
 son injured, held not material, his name 
 being correctly stated in the charging part : 
 State V. McCunniff, 70 . 
 
 1051. Idem soiiiins: Where the orthog- 
 raphy of an indictment composes a name 
 which by the ordinary rules of pronuncia- 
 tion produces a different sound from the true 
 one, the two names will not be considered 
 equivalent: Donnel v. United States, Mor., 
 141. 
 
 1052. Tai-iance as to n.ime: In an indict- 
 ment for bigamy charging the second mar- 
 riage to have been with " Jane Jaco," while 
 the proof showed the name of the person to 
 have been " Jane Frances Jaco," Jield, that 
 there was no variance: State v. Williams, 
 20-98. 
 
 1053. Description of property: Ordinary 
 certainty in the description of property in- 
 volved is required. So held in a proceeding 
 against a building as constituting a nuisance : 
 Norris' House v. State, 3 G. Gr., 513. 
 
 1054. Naineof owner of property: An in- 
 dictment for trespass in cutting down trees 
 and carrying away the timber, which fails to 
 set out the name of the owner of the land 
 upon which the alleged trespass is committed, 
 is properly demurrable : State v. MoConkey, 
 20-574. 
 
 1055. The name of the owner of the build- 
 ing should be set out in an indictment charg- 
 ing the breaking and entering thereof with 
 
 intent to commit a felony. If the name of 
 the owner is unknown, it should be so stated : 
 State V. Morrissey, 23-158. 
 
 105(i. In an indictment for malicious in- 
 jury to a church building belonging to an 
 unincorporated association, the ownership of 
 the property may be alleged as in the persons 
 holding it in trust for such association. The 
 character of the title or interest of such 
 persons need not be set out : State v. Brant, 
 14-180. 
 
 1057. Where the indictment stated only 
 the initials instead of the full Christian name 
 of a person in possession of a house in which 
 the crime of burglary was alleged to have 
 been committed, held, that the substantial 
 rights of the defendant were not prejudiced 
 by refusal of the court to .charge that defend- 
 ant was entitled to an acquittal: State v. 
 Short, 54^392. 
 
 1058. Where the indictment charged the 
 larceny of goods from a railroad company, 
 naming it, belonging to parties to the grand 
 jurors unknown, held, that the indictment 
 was sufficient: State v. Molntire, 59-264; 
 State V. Mclntire, 59-267. 
 
 1059. It does not render an indictment de- 
 fective that in describing a dwelling-Jiouse, 
 it describes it as belonging to the estate of a 
 person deceased: State v.. Franks, 64-39. 
 
 9. Proceedings on the itidictmetit be- 
 fore trial. 
 
 a. Arraignment and misnomer. 
 
 lOGO. Presumption: If the record is silent 
 as to the arraignment, it will be presumed 
 that defendant was duly arraigned, or waived 
 arraignment: State v. Winstrand, 37-110. 
 
 1061. Where it does not appear from the 
 record that defendant has been aiTaigned 
 and has pleaded, the judgment will be re- 
 versed on appeal: Powell v. United States. 
 Mor., 17. 
 
 1062. Waiver: Voluntarily appearing and 
 pleading to an indictment is a waiver of ar- 
 raignment: State V, Winstrand, 37-110. 
 
 1063. Misnomer: It misnomer is not taken 
 advantage of on arraignment, it cannot 
 afterward be raised, and will be waived : 
 Ihid. 
 
 1064. Where defendant answers that he is 
 indicted in his right name, he cannot, after 
 
47i 
 
 CRIMINAL LAW, III, 9, b, c. 
 
 Presence of defendant. — Counsel. 
 
 trial, object that he is not properly named. 
 So held, where in the same indictment the 
 defendant was designated by different names : 
 State V. White, 33-17. 
 
 b. Presence of defendant at arraign- 
 ment, and afterward; mental con- 
 dition. 
 
 1065. Presumption: If defendant is shown 
 to have been present at the beginning and 
 conclusion of the trial, his presence at other 
 times will be presumed, unless the contrary 
 is shown : State v. Wood, 17-18. 
 
 1066. If it is not shown that defendant 
 was not present at the rendition of the ver- 
 dict, the presumption wiU be he was pres- 
 ent : State V. Kline, 54-183. 
 
 1067. If the record shows that defendant 
 was present at arraignment, it will be pre- 
 sumed he was present at the rendition of the 
 verdict where the contrary does not appear : 
 Harriman v. State, 2 G. Gr., 270. 
 
 1068. When necessary: Where the record 
 as to defendant appearing and waiving ar- 
 raignment was defective, and at a subsequent 
 time was corrected on motion, held, that tlie 
 presence of defendant at the time of said cor- 
 rection was not essential : State v. Westfall, 
 49-328. 
 
 1069. A defendant held to appear before 
 the grand jury is not reqiiired to be present 
 at the time of impaneling such jury, and will 
 not be in default on his bail bond for failure 
 to appear at that time ; his right to challenge 
 is one which may be waived : State v. Kling- 
 man, 14-404 ; State v. Fetter, 25-67 ; Ringgold 
 County V. Boss, 40-176. 
 
 1070. In a prosecution for murder, presence 
 of defendant at the time of verdict is essen- 
 tial: Harriman V. State, 3 G. Gr., 270. 
 
 1071. The trial at which defendant ac- 
 cused of a felony is required to be present 
 ends with the verdict; his presence at the 
 argument and determination of a motion for 
 new trial is not essential: State v. Deck- 
 lotts, 19^47. 
 
 1072. Where defendant is put on trial for 
 felony, but only convicted of a misdemeanor, 
 his presence when judgment is rendered is 
 not necessary : Hughes v. State, 4-554. 
 
 1073. In case of conviction for assault and 
 battery the presence of defendant is not re- 
 
 quired, even though he has been on trial for 
 a felony: State v. Shepard. 10-126. 
 
 1074. Mental condition: The preliminary 
 investigation provided for by statute, as to 
 the prisoner's mental condition at the time of 
 arraignment, or upon other occasions when 
 it becomes necessary, relates to his condi- 
 tion at such time, and not his condition at 
 the time of the commission of the offense. 
 In determining whether doubt exists as to 
 his sanity, the judge may, before impanel- 
 ing a jury, investigate the whole matter, 
 obtain all the light reasonably attainable, 
 and determine from all the circumstances ss 
 to whether the necessity for impaneling a 
 jury to determine defendant's mental condi- 
 tion exists: State v. Arnold, 12-479. 
 
 1075. That a person called as a juror in 
 the trial of the case has heard the evidence 
 upon such a preliminary inquiiy as to the 
 prisoner's sanity is not a ground of chal- 
 lenge: Ibid. 
 
 0. Counsel for defendant and for 
 prosecution. 
 
 1076. Ability to employ connsel: State- 
 ments of the defendant in open court that be 
 has no means to employ counsel is a solemn 
 admission which may be used against him if 
 that fact becomes material to any issue in 
 the case : State v. Foolcs, 65-196. 
 
 1077. Dismissal of counsel: When de- 
 fendant during the trial dismissed his coun- 
 sel, and had new counsel appointed by the 
 court to defend him, held, that it was not 
 error to refuse a continuance of several days, 
 on the appointment of such new counsel, it not 
 appearing of record that there was any good 
 ground for the dismissal; defendant's guilt 
 being conclusively shown, and his ability to 
 understand his own case being apparent; 
 State V. House, 55-466. 
 
 1078. Additional counsel for prosecution: 
 The practice of allowing district attorneys 
 to have the assistance of associate counsel 
 has been too long acquiesced in, in this state. 
 to be called in question. There can be no 
 objection to leaving the matter of allowing 
 associate counsel to the discretion of the 
 court and district attorney: State v. Fitz- 
 geraU, 49-260. 
 
 1079. It is entirely proper, with the con- 
 
CRIMINAL LAW, III, 9, d, e, f. 
 
 475 
 
 Motion to set aside indictment. — Demurrer. — Pleas. 
 
 sent of the prosecuting attorney, that other 
 counsel be employed to assist in the prose- 
 cution, and such counsel may be employed 
 by the prosecuting witness for that purpose : 
 State V. Montgomery, 65-483. 
 
 1080. That the district attorney, at his own 
 request, is assisted in the prosecution by an- 
 other attorney, is not a ground of objection 
 on the part of defendant : State v. Ormiston, 
 66-143. 
 
 d. Motion to set aside indictment. 
 
 1081. Gronuds for: That the evidence of 
 an incompetent witness was received by the 
 grand jury is no reason for setting aside an 
 indictment : State v. tucker, 20-508. 
 
 1082. That the minutes of the evidence re- 
 turned by the grand jury do not support the 
 indictment is not a ground for setting it aside : 
 State V. Harris, 36-268. 
 
 1083. Failure to return minutes of evi- 
 (!oiiC8: A motion to set aside an indictment 
 on the ground that the names, of witnesses 
 summoned before the grand jury, and whose 
 testimony was taken by them, are not in- 
 dorsed on the indictment, and that the min- 
 utes of their evidence are not returned there- 
 with, cannot be supported by afiSdavits to 
 show that witnesses other than those whose 
 names appear on the indictment, and the 
 minutes of whose evidence is returned, were 
 summoned before the grand jury. The min- 
 utes of the grand jury as to the testimony 
 taken before them are a part of the record, 
 and cannot be thus impeached by affidavit : 
 State V. Little, 43-51. 
 
 10S4. For error iu iinpaneliiig grand 
 jury : The proper method of 1 aking advantage 
 of irregularity in the selection, summoning 
 or impaneling the grand jury, where the de- 
 fendant has been held to answer before the 
 formation of the grand jury, is by challenge 
 to the panel : State v. Hart, 89-268 ; State v. 
 Hinkle, 6-380; Diaxn v. State, 3-4i&; State v. 
 Howard, 10-101. 
 
 1085. In order to support the action of the 
 court below in overruling a motion to set 
 aside the indictment on this ground, if it does 
 not appear whether defendant was held to 
 answer before indictment or not, it will be 
 presumed that he was, and that the motion 
 was ove) ruled on that ground; State v. 
 Gibbs, 39-318. 
 
 108G. The objection that the grand jury 
 was improperly summoned should be made 
 before pleading to the indictment: State v. 
 Reid, 20-413. 
 
 As to what is sufficient compliance with 
 the provisions as to the formation of the 
 grand jury, and the finding, indorsement, 
 and return of an indictment, to prevent its 
 being set aside on motion, see in general, 
 supra. III, 7. 
 
 e. Demurrer to indictment. 
 
 1087. Under the provisions of the Code of 
 1851, it was held that the demurrer to an in- 
 dictment must be specific : Benham v. State, 
 1-542; State v. Maurer, 7-406; State v. 
 Groome, 10-308. (But the present statutory 
 provisions are different in this respect.) 
 
 1088. Questions as to the sufficiency of the 
 statement of facts in the indictment to con- 
 stitute the crime charged can be raised by de- 
 murrer, and the sufficiency of the indictment 
 as a pleading is then to be determined from 
 its averments. The fact that minutes of evi- 
 dence before the grand jury ai-e not filed by 
 the clerk cannot be raised in that manner: 
 State V. Briggs, 68-416. 
 
 The fact that the time of the commission 
 of the offense, as stated in the indictment, 
 indicates that the period of limitation for 
 prosecuting the offense has expired, is not a 
 ground of demurrer : See supra, % 783. 
 
 f. Pleas. 
 
 1089. Immaterial fact: The whole object 
 of jury trials in criminal cases is to ascertain 
 whether the accused is guilty or not guilty, 
 and it is not proper for t];ie plea to form an 
 issue upon a fact which, although it may be 
 an item of evidence, is not conclusive as to 
 the innocence of defendant. Therefore, held, 
 that in a prosecution for the sale of intoxicat- 
 ing liquors without a license, the plea that 
 defendant had a license did not raise a 
 proper issue for trial: Peters v. State, 3 G. 
 Gr., 74. 
 
 1090. Presumption as to plea: The fact 
 that the record does not show that any plea 
 was interposed by defendant will not war- 
 rant the reversal of a conviction in the lower 
 court. It will be presumed that there was a 
 plea upon which the trial was had : State v. 
 Foster, 40-303. 
 
476 
 
 CRIMINAL LAW, III, 9, f , g. 
 
 Pleas. — Dismissal of prosecution. 
 
 1091. Plea by counsel: The plea of not 
 guilty may be entered by defendant's coun- 
 sel in the absence of defendant: State v. 
 Jones, 70 . 
 
 1092. Failure to plead : Where, upon the 
 overruling of a demurrer to the indictment, 
 the court proceeded to try defendant as though 
 the plea of not guilty had been entered, and 
 the jury returned a verdict of guilty, held, 
 that the conviction was valid, and that de- 
 fendant could not, upon motion in arrest of 
 judgment, have it set aside, and interpose 
 the plea of not guilty : State v. Greene, 66-11. 
 
 1093. It does not constitute reversible er- 
 ror to put defendant on trial witliout a 
 plea having been entered: State v. Hayes, 
 67-27. 
 
 1094. Plea of guilty: The fact that de- 
 fendant pleads guilty upon an expression of 
 opinion by the district attorney, that the 
 court will thereupoQ impose a fine of not 
 exceeding a certain amount, does not entitle 
 him to a new trial in the event of sentence 
 for the payment of a greater tine : State v. 
 Reininghaus, 43-149. 
 
 1095. A plea of guilty, even though made 
 when the defendant is under no obligation to 
 plead, constitutes an admission of guilt which 
 may be shown in evidence against him : State 
 V. Briggs, 68-416. 
 
 1096. Withdraival of plea: The court 
 should, on application, allow defendant to 
 withdraw his plea of guilty, for the purpose 
 of raising the objection that the indictment 
 charges more than one offense : State v. Abra- 
 hams, 6-117. 
 
 1097. Under a statutory provision (Code, 
 6j 4363), defendant has the right to withdraw 
 the plea of guilty, and substitute therefor 
 a different one: State v. Oehlshlager, 38- 
 297. 
 
 1098. Where defendant pleaded guilty be- 
 fore a justice of the peace^ and sentence was 
 passed thereon, held, that, on appeal to the 
 district court, such plea might be withdrawn : 
 State V. Kraft, 10-330; State v. Abrahams, 
 6-117. 
 
 1099. It is eiTor to refuse to allow defend- 
 ant to withdraw his plea, and file a motion 
 to set aside the indictment on the ground 
 that the grand jury was not properly se- 
 lected: State V. Hale, 44-96. 
 
 . 1 100. Where judgment was entered upon 
 
 a plea of guilty and a motion for leave to 
 withdraw such plea and for new trial was 
 filed, based on the ground that defendant 
 was surprised by the punishment inflicted 
 being greater than expected, held, that the 
 alleged ground of surprise was not suffi- 
 ciently established to entitle the defendant 
 to relief : State v. Buck, 59-383. 
 
 1101. Pleading over: After verdict against 
 the defendant on a plea of former convic- 
 tion or acquittal, not accompanied with the 
 plea of not guilty, if he does not ask to plead 
 over, he may be sentenced without further 
 trial : State v. Oreen, 16-239. 
 
 g. Dismissal of prosecution. 
 
 1102. After the trial is entered upon, a dis- 
 missal of the proceedings by the comt or the 
 district attorney (except under the circum- 
 stances authorized by the statute: Code, 
 §§ 4613 et seq.) will operate as an acquittal, 
 and defendant cannot be again put on trial : 
 State V. Callendine, 8-388. 
 
 1103. Where the failure to have a trial at 
 the next regular term after the finding of the 
 indictment results from a default of defend- 
 ant, or from his seeking to have the verdict 
 set aside, and without a demand on his part 
 for trial, or objection to continuance, he is 
 not entitled to a dismissal : State v. Arthur, 
 31-323. 
 
 1104. Where, by mistake, the court an- 
 nounces the case as dismissed, and so marks it 
 on his calendar, and afterwards rescinds such 
 order, there is not such a dismissal as to pre- 
 vent further proceedings: State v. Manley. 
 63-344. 
 
 110.5. At any time before the impaneling 
 and swearing of a jury, it is competent for 
 the prosecutor to nol.pros, the entire indict- 
 ment, or any count or number of counts 
 therein. The same thing may be done in 
 case of a verdict upon an indictment contain- 
 ing several counts, where the jury has failed 
 to respond to a part of the charge, and judg- 
 ment may then be taken upon the balance: 
 State V. McPherson, 9-53. 
 
 As to when a prosecution, although dis- 
 missed, will amount to jeopardy, so as to 
 bar another prosecution, see infra, §§ 1338- 
 1340. 
 
CRIMINAL LAW, III, 10, a, b. 
 
 477 
 
 Trial. — Time; continuances. — By jury. 
 
 10. Teial; new trial; akeest of 
 judgment; sentence. 
 
 a. Time; continuances. 
 
 HOG. Trial term: Under a statutory pro- 
 vision, not now in force, as to the time of 
 trial in criminal proceedings, held, that until 
 the time fixed by law, or by the court in ac- 
 cordance with the provisions of statute, de- 
 fendant could not be legally compelled to go 
 to trial or show cause for continuance : State 
 V. Harris, 33-356. 
 
 1107. Continuance: Defendant is not en- 
 titled, as a matter of right, to a continuance 
 of a case to the term next after that which 
 the indictment is found: State v. Arnold, 
 1^479. 
 
 Change of counsel by defendant after com- 
 mencement of the trial is not necessarily a 
 suiificient ground for continuance : See supra, 
 § 1077. 
 
 As to Continuance, in general, see that 
 title. 
 
 b. Trial by Jury; formation of jury ; 
 challenges. 
 
 1108. Waiver of jury trial: Defendant 
 cannot waive a jury trial and consent to a 
 trial by the court, there being no provision 
 in the code of criminal procedure by which 
 the court, without a jury, has jurisdiction to 
 try the issues of fact in a criminal case: 
 State V. Carman, 63-130; State v. Larrigan, 
 66-426. 
 
 1-109. As the defendant in a criminal ac- 
 tion may waive a statute enacted for his ben- 
 efit, he may consent that the trial proceed 
 with a jury of less than twelve jurors; and 
 will be bound by the verdict rendered : State 
 V. Kaufman, 51-578. 
 
 lllOv Drawing jury: The provisions as to 
 the method of drawing names of jurors are 
 ^itectory; and the failure of the clerk to 
 comply therewith will not amount to error 
 sufficient to reverse the judgment, unless it 
 be shown that the court, on application, re- 
 fused to require the statutory directions to be 
 carried out ; or unless it be otherwise shown 
 that some substantial prejudice lias resulted 
 to defendant : State v. Oiltick, 7-287-. 
 
 1111. When special jurors are summoned 
 on a special venire, to fill up a jury for the 
 
 trial of a particular case, it is not error to 
 call them successively in the order in which 
 they are summoned, but it is better to place 
 their names on ballots and draw as in select- 
 ing regular juroi-s; and this is the proper 
 pi-actice when they are summoned for the 
 entire term: State v. Qreen, 20-424. 
 
 1112. Where the court, prior to the com- 
 mencement of a criminal case and without 
 knowledge that the jury could not be ob- 
 tained from the regular panel, ordered that 
 a special venire be issued, and forty persons 
 were summoned to act as jurors, and after- 
 wards, the regular panel being exhausted in 
 securing a jury in such case, jurors were 
 called from this special panel, in the order in 
 which their names appeared thereon, held, 
 that the action of the court was not errone- 
 ous : State v. Ryan, 70 . 
 
 Further as to method of selecting and 
 summoning JuEY, see that title. 
 
 1113. Disqualification of sheriff: The in- 
 terest on the part of the sheriff mentioned 
 by Code, § 350, as disqualifying him to act in 
 summoning a jury or otherwise need not bo 
 a pecuniary interest. The provisions as to the 
 effect of such disqualifications are applicable 
 in criminal cases: State v. Hardin, 46-628. 
 
 1114. Attachment for absent jurors: 
 While the defendant may, as provided by 
 statute (Code, jj 4391), insist on attachment 
 issuing for jurors who are absent from 
 the original panel, he must insist on that 
 right before the jury is called ; otherwise he 
 cannot object to a juror because he is not a 
 member of the original panel : State v. Miller, 
 53-84. 
 
 1115. A challenge to the panel cannot be 
 made after challenges to individual jurors : 
 State V. Davis, 41-311. 
 
 11 l(i. If a venire is returned so as to show 
 its defects, the defendant must ascertain the 
 facts as they really exist, and make any 
 challenges to the panel which he intends to 
 raise, before challenging individual jurors: 
 State V. Bryan, 40-379. 
 
 1117. While by statute it is provided that 
 on the trial of a challenge to the panel an 
 oflicer whose irregularity in connection with 
 the formation of the panel is made the ground 
 of challenge may be examined as to the facts, 
 it is not provided how he shall be examined, 
 and the court may require that such exami- 
 
478 
 
 CRIMINAL LAW, III, 10, b. 
 
 Trial by jury. 
 
 nation be by affidavit and refuse to bear oral 
 evidence: State v. Linde, 54-139. 
 
 1118. Challenges to jurors; bias: Under 
 the provisions of the statute, an opinion of a 
 juror in regard to some of the transactions 
 involved in the case is not sufficient to dis- 
 qualify him. In order to disqualify, the 
 opinion must be as to the guilt or innocence 
 of the prisoner: State v. Bryan, 40-379. 
 
 1119. Having formed and expressed an 
 opinion as to the killing, in a case of homi- 
 cide, is not sufficient: State v. Thompson, 
 9-188. 
 
 1120. Having formed a hypothetical opin- 
 ion, based upon rumors, but vrhich would 
 not prevent the juror from rendering a true 
 verdict upon the evidence, -will not disqualify 
 him : State v. Ostrander, 18-435, 451. 
 
 1121. Where a juror stated that he had 
 not formed an unqualified opinion, that if 
 vsfhat he had heard should be proved, he had 
 an opinion made up, but that he thought 
 he had no prejudice or bias, etc., held, that 
 that he vs^as not disqualified : State v. Sater, 
 8-420. 
 
 1122. Where a juror stated that he had 
 read an account of the matter (a murder) in 
 the papers, at the time it occurred, and came 
 to the conclusion that defendant shot the de- 
 ceased, and that it was a criminal thing for 
 him to do, etc., but also stated that he had 
 no bias against the defendant, and believed 
 he could fairly and without prejudice deter- 
 mine upon the testimony the guilt or inno- 
 cence of defendant, irrespective of what he 
 had read, held, that it was not error to refuse 
 to sustain a challenge for cause: State v. 
 Bruce, 48-530; and see State v. Lawrence, 
 38-51 ; State v. Soper, 70 . 
 
 1123. A juror cannot be said to have 
 formed an unqualified opinion, when the 
 opinion he has formed is based upon hear- 
 say and not upon statements made by any 
 one claiming to have personal knowledge, 
 and he still thinks that he can render a ti'ue 
 verdict : State v. Ormiston, 66-143. 
 
 1121. The opinion that defendant is guilty 
 or innocent, which is good ground of chal- 
 lenge, is an unqualified opinion. If the opin- 
 ion is qualified by the conditions that if what 
 the juror has heard about the case is true, 
 then defendant is guilty or not guilty, the 
 opinion is a qualified one, and does not ren- 
 
 der the juror incompetent : State v. George, 
 63-682. 
 
 1125. Where the juror stated that he hai 
 formed and expressed an opinion upon 
 rumor, but that he had no ill-will or preju- 
 dice against defendant, and no personal 
 knowledge of the circumstances of the case : 
 and that his opinion was conditional ; and if 
 what he had heard was true, he had formed 
 an opinion, and if what he had heard wan 
 untrue, he had not formed an opinion, held. 
 that the juror was subject to challenge for 
 cause : Trimble v. State, 2 G. Gr., 404. 
 
 1126. Where a juror stated that he had 
 no bias or prejudice against the prisoner 
 (who was an Indian), but merely had heard 
 reports, which he believed, that some Indians 
 had done the deed for which the Indian was 
 on trial ; and that the act done was wrong, 
 unless done in self-defense, held, that this 
 was not such ground as to exclude him from 
 sitting as a juror: Wau-kon-chaw-neek-kaw 
 V. United States, Mor., 332. 
 
 1 127. Where, in a prosecution for nuisance 
 in using a building for illegal sale of intoxi- 
 cating liquors, the juror testified that he was 
 opposed to the business of saloon-keeping and 
 to the law regulating the sale of intoxicating 
 liquors, but that as long as the law stood, he 
 was not prejudiced against a man for selling 
 beer or wine, held, that he was a competent 
 juror: State v. Nelson, 58-208. 
 
 1128. The juror having testified that he 
 has fornaed and expressed an unqualified 
 opinion, etc. , should not be required to state 
 whether it is for or against the prisoner in 
 order to render him subject to challenge for 
 cause : State v. Shelledy, 8-477. 
 
 1129. Implied bias: The fact that a juror 
 is a member of au association for the prose- 
 cution of persons generally who may be ar- 
 rested for horse stealing is not a gi-ound for 
 challenge upon the trial of a defendant 
 charged with that crime: State v. Wilsm, 
 8-407. 
 
 1 130. The fact that a juror is a resident of 
 the city does not disqualify him to sit on a 
 jury for the trial of a person for violation of 
 a city ordinance: State v. Wells, 46-662. 
 
 1131. It is not a ground of challenge to 
 the panel that the jurors have heard the evi- 
 dence in a preliminary inquiry as to the 
 prisoner's sanity: State v. Arnold, 13-479. , 
 
CKIMINAL LAW, III, 10, b. 
 
 4?9 
 
 Trial by jury, 
 
 1132. Having served on a jury in the trial 
 of another defendant for the offense charged 
 in the indictment is a ground of ctiallenge 
 where two or more defendants have been in- 
 dicted for the same offense, and have had 
 separate trials; but there is no such objec- 
 tion where two defendants are separately 
 indicted, although the offense may be of the 
 same kind : State v. Sheeley, 15-404 ; State v. 
 Leioht, 17-38. 
 
 1133. Examination of juror as to coin- 
 petency: It is not proper for counsel to ask 
 a juror whether he has formed or expressed 
 an opinion as to a certain supposed defense : 
 State V. Arnold, 12-479. 
 
 1134. The proper method in examining a 
 juror is to direct the investigation to the 
 general question of opinion as to the guilt or 
 iimocence of the prisoner. The purpose of 
 the inquiry is to ascertain the existence or 
 non-existence of actual bias. Counsel may 
 direct the inquiry so as to prove to the mind 
 of the jury facts, circumstances, and even 
 hypothetical cases, and tlius fully present 
 his right to challenge for cause : Ibid. 
 
 1135. Where the juror has been challenged 
 for cause, it is within the discretion of the 
 court to allow the opposite party the privi- 
 lege of recalling him for cross-examination 
 as to his qualifications : State v. Shelledy, 8- 
 477, 503. 
 
 1136. Effect of disqualification: A judg- 
 ment upon the verdict rendered by a dis- 
 qualified jury is erroneous, but not void. It 
 may be reversed upon appeal, but cannot be 
 disregarded as a nullity : Foreman v. Hunter, 
 59-550. 
 
 1137. Time of objection; new trial: If 
 the juror is examined on oath at the proper 
 time as' to whether he has formed or ex- 
 pressed such an opinion as will disqualify 
 him, and answers falsely with reference 
 thereto, that fact being shown, may be a 
 ground for new trial, but such ground cannot 
 be urged unless the witness has been inter- 
 rogated with respect thereto at the proper 
 time: State v. Shelledy, 8-477, 508. 
 
 1138. Waiver: In accepting the jury, de- 
 fendant waives an objection thereto for bias 
 or prejudice, but if either of the jurors was 
 disqualified to act as such, he does not waive 
 his right of objection for this cause, but may 
 make it a ground for new trial, unless he 
 
 knew at the time the jury was sworn of the 
 fact of disqualification : State v. Oroome, 10- 
 308.' 
 
 1139. Error Tvithout prejudice: Where 
 defendant does not exhaust all his peremp- 
 tory challenges, any error in overruling a 
 challenge to a juror for cause will be con- 
 sidered as error without prejudice : State v. 
 Elliott, 45-486. 
 
 1140. Failure of the court to sustain a 
 challenge for cause to a juror who does not 
 sit as one of the jurors on the trial will not 
 constitute reversible eiTOr where it appears 
 that defendant's peremptory challenges were 
 not all exhausted when the jury was finally 
 sworn: State v. Davis, 41-311. 
 
 1141. Peremptorj challenges:' The fact 
 that the state waives the first peremptory 
 challenge does not defeat the right of de- 
 fendant to exercise his peremptory chal- 
 lenges: Smith V. State, 4 G. Gr., 189. 
 
 1142. Before the enactment of the present 
 statutory provisions as to the order of per- 
 emptory challenges, held, that after one 
 peremptory challenge by the prosecution, 
 defendant must interpose two of his peremp- 
 tory challenges before the prosecution could 
 be required to proceed : and upon failure to 
 do so, his two challenges, or the one of them 
 not exercised, would be deemed waived : 
 State V. Pierce, 8-231. 
 
 1143. Also, held, that whether a jury 
 should be filled after defendanj; had exer- 
 cised one peremptory challenge, before he 
 could be required to exercise another, was in 
 the discretion of the court : State v. Shelledy, 
 8-477, 504. 
 
 1144. Administering oath to jury: No 
 form of oath to the jury is prescribed by 
 the statute ; and in the absence of a record 
 showing the contrary, it will be presumed 
 that the oath administered was in due form : 
 State V. Ostrander, 18-435, 453. 
 
 11 45. Where the record recited that "the 
 jury were duly impaneled and sworn to try 
 the case (naming it), and a true verdict give 
 therein, according to the evidence and the 
 best of their ability," held, that even if that 
 was literally the oath administered it was suf- 
 ficient: Ibid. 
 
 1146. Where it appeared that after being 
 impaneled the jury were sworn "the truth 
 to speak upon the issues joined," held, that 
 
480 
 
 CRIMINAL LAW, III, 10, c, d. 
 
 Separate trials of joint defendants. — Conduct of the trial. 
 
 the oath was sufficient: Wrocklege v. State, 
 1-167. 
 
 1147. Under the provisions of the Code of 
 1851, held, that the oath administered to the 
 jury requiring them "the truth to speak,'' 
 without including the direction "to try the 
 issues joined," was not sufficient : Dixon v. 
 State, 4 G. Gr., 381. 
 
 1148. Under the provisions of the Revised 
 Statutes of 1843 requiring an oath in a par- 
 ticular form, held, that where the record re- 
 cited that the jury were sworn "the truth 
 to speak " upon the issues joined between the 
 parties, which was much less formal and 
 solemn than the oath required by statute, 
 such irregularity was sufficient to warrant the 
 reversal of a conviction for murder ; Harri- 
 man v. State, 2 G. Gr., 270. 
 
 1149. Method of impaneling: It is too 
 late, after the verdict, to object to the man- 
 ner of impaneling the jury when no objec- 
 tion was made on the trial : Ibid. 
 
 1150. Dismissing juror: It is error, after 
 the jury has been impaneled and the trial 
 commenced, to dismiss a juror and substitute 
 another in his place, even though the juror 
 dismissed has been guilty of misconduct 
 which would vitiate a verdict of guilty if 
 rendered in such proceeding. In such a case 
 of misconduct the jury should be dismissed, 
 and the trial commenced anew: Orable v. 
 State, 2 G. Gr., 559. 
 
 c. Separate trials of defendants jointly 
 indicted. 
 
 1151. When defendants jointly indicted 
 for a felony elect to be tried separately, the 
 order in which they shall be tried rests with 
 the district attorney, under the direction of 
 the court : State v. Hudson, 50-157 ; State v. 
 Nash, 7-347, 373. 
 
 1152. Where defendants are jointly in- 
 dicted for a misdemeanor, they may be tried 
 jointly or separately in the discretion of the 
 court: State V. Gigher, 23-318. 
 
 1153. And the state, as well as defendants, 
 iu such case, may ask for a separate trial: 
 State V. Marvin, 13-499. 
 
 1154. Whether tried separately or jointly, 
 either one of the co-defendants is a compe- 
 tent witness for the other : State v. Nash, 10- 
 81 ; State v. Gigher, 23-318. 
 
 1155. In case of a joint trial, one co-de- 
 fendant is a competent witness for the other, 
 the jury being properly cautioned, in case of 
 a joint trial, that the evidence is not to be 
 considered in behalf of the defendant so testi- 
 fying: State V. Stewart, 51-313. 
 
 1156. Whether defendants be jointly or 
 separately tried, a separate judgment is to be 
 entered up as to each, and the clerk is en- 
 titled to a fee for the entry of each separate 
 judgment, but where tried jointly, he is en- 
 titled to but one trial fee : State v. Hunter, 
 83-361. 
 
 1157. Acquittal of one of two defendants 
 jointly indicted does not bar the prosecution 
 of the other : State v. McOlintock, 1 6. Gr. 
 393. 
 
 1158. One may be found guilty, and the 
 other acquitted : Ihid. 
 
 1159. Where defendants are jointly in- 
 dicted, and the evidence shows that, if both 
 are guilty, they are guilty of distinct offenses 
 committed in separate transactions, the court 
 should require the prosecution to elect upon 
 which transaction it will proceed: State v. 
 Brown, 58-298. 
 
 IIGO. Two persons may be jointly indicted 
 for the same crinle without alleging that one 
 is principal and the other accessory ; or that 
 either one was more directly the perpetrator 
 of the act than the other: State v. Zeibart, 
 40-169. 
 
 d. Conduct of tlie trial; opening and 
 closing ; introduction of evidence. 
 
 1161. Order of trial: The order specified 
 by statute (Code, § 4430) may be varied by 
 the court in the exercise of lawful discre- 
 tion : State v. Flynn, 43-164. 
 
 1162. Opening statement for prosecution: 
 Statements by the district attorney, in open- 
 ing the case to the jury, of facts which he 
 expects to prove, and which if proved would 
 be material and competent, may be made by 
 him, if in good faith, believing and having 
 good reason to beUeve he will be able to sus- 
 tain them by evidence, although he is after- 
 ward unable to obtain evidence to sustain 
 some of them : State v. Meshek, 61-316. 
 
 1163. In a particular case, a lengthy state- 
 ment, which was made by prosecuting attor- 
 ney, of the evidence which it was expected 
 
CRIMINAL LAW, III, 10, d. 
 
 481 
 
 Conduct of the trial. 
 
 would be introduced, and was followed by an 
 unfair argument of the case based to a con- 
 si lerable extent upon facts which were 
 wholly unsubstantiated by the evidence aft- 
 erward introduced, was held sufficient mis- 
 conduct to require a reversal, the defendant 
 having objected to the remarks of the prose- 
 cuting attorney at the time ; and further, held, 
 that the fact that attorney for defendant re- 
 plied to this opening argument in the same 
 manner, did . not render the action of the 
 prosecuting attorney error without prejudice : 
 State V. Williams, 63-135. 
 
 1164. Before the enactment of the statu- 
 tory provision as to an opening statement, 
 the court might, in its discretion, allow the 
 district attorney to make a statement of the 
 case to the jury, and the only effect of such 
 provision is to secure, as a matter of right, 
 what the court might, in its own discretion, 
 have granted or refused : State v. Bateman, 
 62-604. 
 
 116.S. The fact ttat by oversight the pros- 
 ecution introduces its evidence before the 
 indictment is read and the opening statement 
 made, will not constitute ground of reversal, 
 such irregularity being waived by failure to 
 interpose an objection to the introduction of 
 evidence before the reading of the indict- 
 ment: State V. Norton, 67-641. 
 
 1160. Orderofcalling'witiiesses: In crim- 
 inal cases under some circumstances, and for 
 some purposes, a witness may be called after 
 the evidence is closed, and where no preju- 
 dice is shown from such introduction of 
 testimony, it will not be a ground for reversal : 
 State V. Shean,, S2-88. 
 
 11 G 7. The court is vested with the discre- 
 tion to permit the evidence out of the order 
 prescribed by the statute : State v. Falconer, 
 70 . 
 
 11G8. The order in which evidence is al- 
 lowed to be introduced is a matter so much 
 in the discretion of the court that the supreme 
 court will not feel justified in interfering, 
 unless upon the clearest showing of prejudice ; 
 so held, where, upon rebuttal, the prosecu- 
 tion was allowed to introduce evidence in 
 chief, while upon surrebuttal by defendant 
 evidence in chief was excluded: State v. 
 Bruce, 48-530. 
 
 1169. Where evidence is offered in re- 
 buttal which should have been offered in 
 Vol. 1—81 
 
 chief, the court may admit it as Upon the 
 original case, if in furtherance of justice it 
 should be so admitted. The fact that it was 
 not ostensibly so admitted will not justify a 
 reversal in the absence of a showing of prej- 
 udice: State V. Curran, 51-112. 
 
 1 1 70. As to what is to be deemed rebutting 
 testimony, see State v. Parish, 33-284. 
 
 1171. Witnesses whose names are not in- 
 dorsed on the indictment cannot be intro- 
 duced by the prosecution (Code, § 4431): 
 Smith V. State, 4 G. Gr., 189; Eay v. State, 
 1 G. Gr., 316. 
 
 IT 72. What snfBeient indorsement: Va- 
 riance between the name of a witness as in- 
 dorsed on the indictment, and his true name, 
 is not a valid objection, unless defendant is 
 misled thereby: State v. Ostrander, 18-485, 
 459. 
 
 11 73. The fact that an indorsement on the 
 indictment gives the initials only of the wit- 
 ness' Christian name will not render it im- 
 proper to allow such witness to testify : State 
 V. Pierce, 8-231 ; State v. Schlagel, 19-169. 
 
 11 74. A mistake in the initials of a v.-itness 
 whose name is indorsed will not, in the 
 absence of any showing of prejudice, be 
 sufficient ground for objecting to his testi- 
 mony : State v. Stanley, 33-526. 
 
 1175. Where, in indorsing the name of 
 the witness on the back of an indictment, 
 his title, instead of his Christian name, was 
 used, held, that if the witness was as unmis- 
 takably described as he would have been by 
 the use of his Christian name, the object of 
 the indorsement was accomplished, and no 
 prejudice could result to defendant from al- 
 lowing the witness to be called: State v. 
 McComb, 18-43. 
 
 1176. The indorsement is not the only 
 evidence to be received on the question of 
 identity of the witness called with the one 
 who was examined before the grand jury. 
 The minutes of evidence may be examined 
 in determining that question, and such min- 
 utes, being a pai-t of the record, need not be 
 formally introduced in evidence ; and where 
 the name of the witness indorsed was " Mrs. 
 Hutzel," and it appeared that the witness 
 called was Mary E. Hutzel, held, that it 
 would be presumed, in favor of the action of 
 the court in allowing such witness to testify, 
 that it appeared from the minutes that the 
 
482 
 
 CRIMINAL LAW, III, 10, d. 
 
 Conduct of the trial. 
 
 person called was the person who was ex- 
 amined before the grand jury: State v. 
 Briggs, 68-416. 
 
 1177. In a particular case, held, that the 
 difference between the name of the witness 
 as indorsed upon the indictment, and his 
 real name, was so slight as not to justify his 
 exclusion: Houston v. State, 4 G. Gr., 437. 
 
 1178. Effect of failure to indorse name 
 of ivitness: Under the provisions of the 
 Code of 1851, differing from the provisions 
 of the present statute, held, that the prose- 
 cution was not prohibited from introducing 
 the evidence of witnesses who were not ex- 
 amined by the grand jury, and whose names 
 were not indorsed on the indictment, and 
 that the state might introduce testimony 
 discovered subsequently to the finding of 
 the indictment: State v. Abrahams, 6-117; 
 State V. McClintock, 8-203. 
 
 1179. Under the present statutory pro- 
 vision (Code, § 4421) that the district attorney 
 shall not, in offering evidence in support of 
 the indictment, introduce witnesses not ex- 
 amined by the grand jury, and the minutes 
 of whose testimony were not taken by the 
 clerk of the grand jury, and presented with 
 the indictment to the court, unless notice 
 shall have been given to the defendant in 
 writing, it is held that failure to indorse on 
 the back of the indictment the name of a 
 witness examined before the grand jury, and 
 the minutes of whose evidence are returned, 
 is not a ground for excluding his testimony ; 
 and that such defect can only be reached by 
 motion to set aside the indictment : State v. 
 Fowler, 52-103 ; State v. Flynn, A%-\Q4:. 
 
 11 SO. A continuance being granted after 
 the commencement of the trial, the ground 
 therefor being an application by the district 
 attorney showing discovery of evidence 
 which it was not possible to introduce by 
 reason of the witness not having been ex- 
 amined before the grand jury, and no notice 
 of its proposed introduction having been 
 given in proper time, held, that this did not 
 constitute a bar to a subsequent trial : State 
 V. Parker, 66-586 ; State v. Falconer, 70 . 
 
 1181. In the examination of a witness, 
 the minutes of whose testimony were taken 
 by the giand jury and returned with the in- 
 dictment, the prosecuting attorney is not lim- 
 ited to tlie testimony given by the witness 
 
 before the grand jury, but may examine him 
 as to other matters not therein referred to: 
 State V. Bowers, 17-46; State v. Ostrander, 
 18-435; State v. McCoy, 20-263. 
 
 1183. The mere brevity of the minutes of 
 the witness' testimony taken by the grand 
 jury will not justify the entire exclusion of 
 the testimony of such witness : State v. Van 
 Vleet, 33-37. 
 
 1183. Where the indictment is found upon 
 minutes of testimony taken before a magis- 
 trate, and the names of the witnesses ex- 
 amined by such magistrate are indorsed 
 on the back of the indictment, they may 
 then be called to testify by the prosecu- 
 tion without having been examined by the 
 grand jury: State v. Rodman, 63-456. 
 
 1184. The mere failure to file the minutes 
 returned by the grand jury should not pre- 
 vent the state from introducing its evidence: 
 State V. Postlewait. 14-446. 
 
 1185. Failure of the state to call any of 
 the witnesses whose nanjes are indorsed on 
 the indictment is no ground for presuming 
 that the testimony of such witnesses would 
 be in favor of defendant : State v. Ostrander, 
 18-435, 457. 
 
 1186. Other witnesses: The statutory pro- 
 vision limiting the prosecution to witnesses 
 examined by the grand jury, and minutes of 
 whose evidence are returned, etc., applies 
 only to evidence in support of the indict- 
 ment, and does not preclude the testimony 
 of other witnesses as to the fact that a cer- 
 tain witness testified before the grand jury: 
 State V. Fowler, 52-103. 
 
 1187. The state may caU, in rebuttal, wit- 
 nesses whose names are not indorsed on the 
 indictment, and who were not examined be- 
 fore the grand jury: State v. Parish, 33-284; 
 State V. Gillick, 10-98 ; State v. Ruthven, 58- 
 121 ; State V. Rivers, 68-611. 
 
 1188. If defendant becomes a. witness in 
 his own behalf, witnesses to impeach him 
 may be called who were not examined before 
 the grand jury, without serving notice of 
 the intention to call them: State v. Teeter, 
 69-717. 
 
 1189. Under the statutory provision that 
 witnesses not examined by the grand jury may 
 be called by the prosecution upon notice hav- 
 ing been served of the intention to call such 
 witnesses and the substance of their testi- 
 
CRIMINAL LAW, in, 10, e. 
 
 483 
 
 Instructions. 
 
 mony, etc., held, that it was sufficient that 
 the notice be served upon defendant per- 
 sonally. The mode of service or authentica- 
 tion is not prescribed. Authentication by the 
 person making the service is sufficient : State 
 V. Ostrander, 18-435, 452. 
 
 1190. Waiver of objection : That vidtnesses 
 are examined whose names are not on the 
 indictment cannot be raised as an objection 
 for the first time after conviction : Ray v. 
 State, 1 G. Gr., 316; State v. Houston, 50- 
 513. 
 
 e. Instructions. 
 
 As to Instructions in general, see that 
 title. 
 
 1191. Signing: The requirement that the 
 judge shall sign the instructions given by 
 him is directory, and a failure to do so will 
 not be ground for reversal, when no preju- 
 dice resulted therefrom to defendant: State 
 V. Stanley, 48-221. 
 
 1192. If the instructions are properly 
 passed upon by the court, and embodied in a 
 bill of exceptions, the failure to sign them 
 will not be a ground of reversal : State v. 
 MoConibs, 13-426. 
 
 1193. The supreme court, on appeal, will 
 not pass upon instructions which have not 
 been made part of the record, either by be- 
 ing signed as here required, or embodied in 
 a bill of exceptions: State v, Gebhardt, 13- 
 478; State V. Watrous, 13-489. 
 
 1194. In writing: Where it appeared that 
 the charge of the court was given to the 
 jury orally and afterwards reduced to writ- 
 ing, with the acquiescence of defendant, 
 held, that such irregularity could not after- 
 wards be taken advantage of : State v. Sipult, 
 17-575. 
 
 1195. Giving instructions asked: It is 
 the better practice, as a rule, for the judge to 
 put aside the instructions asked by counsel, 
 and cover the whole ground in a methodical 
 charge of his own : State v. Collins, 20-85. 
 
 1196. Instrnctions upon questions of 
 fact : An instruction to the effect that, if de- 
 fendant did a certain act specified, the jury 
 should infer a fraudulent intent, is not vul- 
 nerable to the objection that it assumes facts 
 as proved: State v. Thompson, 19-299. 
 
 1197. It is within the province of the court 
 to state whether the ^acts proved, if believed. 
 
 constitute the offense charged: Pollard v. 
 State, 2-567. 
 
 1198. An instruction in which the court 
 declared " that there is some evidence tend- 
 ing to show that defendant was drunk," 
 where evidence of intoxication was relied 
 upon as showing want of specific intent, lield 
 erroneous, as indicating an opinion of the 
 court as to the weight and quantity of the 
 evidence, unfavorable to defendant: State v, 
 Donovan, 61-369. 
 
 1199. An instruction which especially 
 directed the attention of the jury to certain 
 facts, and thereby excluded from their atten- 
 tion other facts bearing upon the same ques- 
 tion, /leZd erroneous : State v. Mesheh, 51-308. 
 
 1200. Not supported by evidence: Where 
 it appears that there was no evidence tending 
 to show that defendant in any respect aided 
 and abetted the commission of the crime 
 charged, held, that an instruction with refer- 
 ence to his criminality if it should appear 
 that he aided, abetted, etc., was erroneous: 
 State V. Myer, 69-148. 
 
 1201. Misleading: An instruction which 
 may be misleading when applied to the par- 
 ticular facts of the case is erroneous : State 
 V. Benham, 23-154. 
 
 1202. An instruction in a prosecution for 
 assault which assumed that the assault was 
 made, and called particular attention to the 
 manner of the assault, etc. , when there was 
 great doubt from the evidence whether any 
 assault was made, held erroneous, as being 
 misleading : State v. Bailey, 54-414. 
 
 1203. Duty to instruct : While mere fail- 
 ui-e to instruct the jury may constitute re- 
 versible error if it should be apparent that 
 the failure resulted in depriving defendant 
 of a fair trial, yet where instructions are cor- 
 rect as far as they go, the defendant should, 
 if he desires further instructions, ask them 
 or he will not be heard to complain : State v. 
 Helvin, 65-289. 
 
 1204. In a trial for forgery, held, that a 
 failure by the court to give instructions re- 
 specting the law applicable to the offense, 
 and to a certain line of defense of which 
 there was sufiicient evidence to require it to 
 be considered by the jury, though no instruc- 
 tions were asked by the counsel for defend- 
 ant, was sufficient to warrant a reversal, the 
 court saying that although the court below 
 
484 
 
 CRIMINAL LAW, lU, 10, e. 
 
 InBtructions. 
 
 is not bound to give instructions on its own 
 motion where those asked by covinsel are 
 sufficient, yet, when they are defective or in- 
 sufficient, the law complicated, and the of- 
 fense of a high criminal character, the court 
 should point out the controverted questions 
 of fact, and state the law applicable thereto : 
 State V. Brainard, 25-572 (cited in State v. 
 Hamilton, 33-573, 574). 
 
 1205. The fact that any proposition of the 
 law upon a point involved is not stated will 
 not avaU defendant, if that which was given 
 was correct. In such a case, the proper 
 course would be to ask additional instructions 
 to cover points not stated: State v. Tweedy, 
 11-350. 
 
 120G. The court is not required to take up 
 the several facts and circumstances testified 
 to by the witnesses, and instruct the jury as 
 to their weight and effect: State v. Miller, 
 65-60. 
 
 1207. Issues: Matters of dispute arising 
 upon the law or the evidence are not issues 
 which the court must specifically present to 
 the jury : State v. Nadal, 69^78. 
 
 1208. Error in instructing' as to degree 
 ol' offense: The giving of instructions in re- 
 gard to an offense of a higher degree than 
 that for which defendant is properly on trial 
 will be sufficient error to warrant a reversal, 
 although he be only found guilty of an 
 offense for which he was properly on trial: 
 State V. Tieeedy, 11-350. 
 
 That it is error to put defendant on trial for 
 a higher degree of the offense than that prop- 
 erly charged in the indictment, see supra, 
 g§ 169-171 ; infra, § 1257. 
 
 1209. Instrnction as to different degrees 
 and included crimes: On the trial of an of- 
 fense of such nature that defendant might 
 properly be convicted of a lesser degree of 
 the offense than that charged, or of an offense 
 necessarily included in that charged, the 
 court should instruct the jury that they may 
 find defendant guilty of such lower degree 
 or included offense : State v. Walters, 45-389 ; 
 State V. Kegan, 63-106. 
 
 1210. In such cases the court should ex- 
 plain to the jury the elements of the lower 
 degrees of the crime, and of all crimes of 
 which defendant might be convicted under 
 the indictment, and it will constitute error in 
 the court to fail to do so : State v. Vinsant, 
 
 49-341; State v. demons, 51-^7i; State v. 
 Glynden, 51-468. 
 
 1211. Upon the trial of an indictment for 
 rape, the court should instruct the jury not 
 only as to assault with intent to commit rape, 
 but also as to simple assault, and it will con- 
 stitute error to fail to do so : State v. Penndl 
 56-39 ; State v. Peters, 56-363. 
 
 1212. Assault and batteiy is not neces- 
 sai'ily included in the crime of rape, and it is 
 not necessary to instruct the jury that they 
 might find defendant guilty of assault and 
 battery : State v. McDevitt. 69-549. 
 
 1213. In a particular case, held, that the in- 
 structions sufficiently directed the jury as to 
 convicting for assault with intent to commit 
 rape or assault and battery under an indict- 
 ment for rape : State v. Mitchell, 68-116. 
 
 1214. Even though the counsel for the 
 prisoner has claimed and insisted upon the 
 trial that the prisoner, if guilty at all, is 
 guilty of the degree of offense charged in the 
 indictment, yet the prisoner has the right to 
 the proper instructions as to lower degrees 
 of the offense : State v. Johnson, 8-525. 
 
 1213. Failure to instruct as to lower de- 
 grees of the offense will not be error where 
 there is no evidence which would support a 
 conviction of a lower degree: State v. Cole, 
 63-695. 
 
 1216. Where, in a prosecution for murder 
 in the first degree, the evidence is indispu- 
 table that the deceased died from the effects 
 of a wound inflicted by the defendant, it is 
 not necessary for the court to instnict the 
 jui'y as to crimes less in degree than that of 
 criminal homicide : State v. Froeliek, 70 — . 
 
 1217. Where, in a prosecution for murder, 
 it is admitted that the defendant by violence 
 caused the death of deceased, and claims that 
 his act was done in self-defense and was not 
 unlawful, it is not error to instruct the juiy 
 that they should either convict the defend- 
 ant of murder or manslaughter, or acquit 
 him. In such cases it is not necessary to in- 
 struct the jury as to offenses lower than man- 
 slaughter, which may be included in the 
 crime of murder charged in the indictment: 
 State V. Mahan, 68-304. 
 
 That the jury may convict of a lower de- 
 gree of the crime charged, or of a crime nec- 
 essarily included therein, see infra, §§ 1238- 
 1356. 
 
CRIMINAL LAW, III, 10, e, f. 
 
 485 
 
 Instructions. — Conduct of jury. 
 
 That in case of reasonable doubt as to the 
 degree, the jury should convict of the lower 
 degree, see infra, % 1685. 
 
 That the jury should be instructed that in 
 case of reasonable doubt as to the degree of 
 the offense they should convict only of the 
 lower degree, see infra, § 1634. 
 
 •Instructions as to reasonable doubt, see 
 infra, §§ 1613-1633. 
 
 Instructions as to alibi, see infra, g§ 1437- 
 1440. 
 
 1218. Objection to evidence cannot be 
 taken by way of instructions to the jury 
 that such evidence should not be considered : 
 State V. Pratt, 20-267. 
 
 1219. Additional instructions: Remarks 
 of the court to the jury, after they had been 
 out for a considerable time without be- 
 ing able to agree, as to the impropriety of a 
 juror going into the jury box with a pre- 
 determination as to the result which he will 
 favor, and to hang the jury, or to cause a 
 disagreement if the'verdict cannot be rendered 
 as he wants it, held not erroneous : State v. 
 Lawrence, 38-51. 
 
 1220. Where the jury, after having re- 
 tired, sent to the court a communication ask- 
 ing further instructions as to a matter of fact 
 in regard to which they were in doubt, held, 
 that it was not incumbent upon the court to 
 give them any further instructions upon such 
 question : State v. Maxwell, 42-308. 
 
 1221. In a particular case, held, that the 
 court was warranted in giving additional in- 
 structions after the retirement of the jury: 
 State V. Pitts, 11-343. 
 
 1222. In case cf libel: Although, by con- 
 stitutional and statutory provisions, the jury 
 in prosecutions for libel determine both the 
 law and the facts, the court has the right to 
 instruct them in these as well as other crim- 
 inal cases ; and the conclusive presumption 
 is, that they followed the instructions of the 
 court; therefore, an erroneous instruction 
 will be regarded as prejudicial, and a gi-ound 
 for reversal, as in other cases : State v. Bice, 
 56-431. 
 
 1223. The expression, " under the direc- 
 tion of the court," used in the statute in that 
 connection, means under the instructions of 
 the court: Forshee v. Abrams, 3-571. 
 
 1224. The doctrine that the jurors are 
 judges of the law as well as the facts, in libel, 
 
 applies only to criminal prosecutions, and 
 not civil actions for damages : Ibid. 
 
 122.J. Special interrogatories: The stat- 
 ute authorizing the submission to the jury of 
 interrogatories for special findings on partic- 
 ular questions of fact is not applicable in 
 criminal cases : State v. FooJcs, 65-196 ; State 
 V. Ridley, 4S-370. 
 
 1226. Directing acquittal: The court may 
 direct an acquittal when there is no testi- 
 mony sustaining the charge, or when it is so 
 slight that a verdict of guilty would be in- 
 stantly set aside, but not when there is a 
 conflict in the testimony: State v. Smith, 
 28-565. 
 
 1227. Remarks to .jury: The court can- 
 not, under the guise of determining some 
 questions which are legitimate, make remai'ks 
 in the presence and hearing of the jury which 
 would constitute error if contained in an in- 
 struction, and thus deprive the defendant of 
 the opportunity of having such error re- 
 viewed: State V. Stowell, 60-535. 
 
 f. Conduct of j\i,ry. 
 
 1228. Separation: It will not necessarily 
 constitute error for the court to refuse to di- 
 rect, on application of defendant, that the 
 jury shall be kept together without separa- 
 tion, if it is not made apparent that the court 
 has therein exceeded its discretion, or exer- 
 cised it to the prejudice of defendant's rights : 
 State V. Gillick, 10-98. 
 
 1229. In the absence of a showing of prej- 
 udice, held, that the fact that one of the ju- 
 rors, while on the way to the jury room, 
 separated himself from the others for the 
 purpose of getting some tobacco, would not 
 vitiate the verdict: State v. Wart, 51-587. 
 
 1230. That one of the jurors was permitted 
 to leave the jury room for a necessary and 
 proper purpose, accompanied by the deputy 
 sheriff, it appearing that the juror had no 
 conversation with any one while absent, ex- 
 cept with such deputy, and with him only to 
 the extent of asking permission to retire, 
 held, not such misconduct as to make a new 
 trial necessary: State v. Bowman, 45-418. 
 
 1231. As to the propriety of not allowing 
 the jury to separate when the defendant ob- 
 jects thereto, see State v. Fclter, 35-67. 
 
 1232. Admonition: It need not appear of 
 record that the jury were properly admon- 
 
486 
 
 CRIMINAL LAW, III, 10, g. 
 
 Finding and return of verdict. 
 
 ished prior to each adjournment ; it will be 
 presumed that the court did its duty in this 
 respect: State v. Shelledy, 8-477. 
 
 1233. Sworn officer: Communication with 
 the jury by a deputy sheriff after theh- re- 
 tirement in relation to procuring for them 
 a paper introduced in evidence, held, not 
 a ground for reversal in the absence of any 
 showing of prejudice : State v. Wart, 51-587. 
 
 1234. It is not necessary that it appear 
 affirmatively that the jury were in charge of 
 a sworn officer. That will be presumed un- 
 less the contrary appears : State v. Pitts, 11- 
 343. 
 
 1235. What the jury may take with 
 tliem : Where a medical book was introduced 
 as evidence, and a portion of it read to the 
 jury, held, that it was not proper for them 
 to take such book to the jury room, the por- 
 tions which were read not being marked: 
 State V. Gillick, 10-98. 
 
 1236. The jury on their retirement to con- 
 sider their verdict, in an appeal from a 
 conviction in a justice's court, were per- 
 mitted to take with them the papei'S in the 
 case, including the information, the tran- 
 script from the justice, transcript on change 
 of venue, affidavits, etc. ; held, that there 
 was no ground for reversal in the absence of 
 a showing that the jury, or any of them, 
 examined the papers, or that any prejudice 
 resulted from their action : State v. Gibson, 
 29-295. 
 
 1237. Where a juror sent for and read to 
 his fellows a law book in support of the cor- 
 rectness of the instructions of the judge, 
 held, that such misconduct was error without 
 prejudice, the instructions having been as a 
 matter of law correct : State v. Oarr, 43-418. 
 
 g. Finding and return of verdict. 
 
 1238. Verdict for lower deg'ree or in- 
 cluded offense: Under the statutory provis- 
 ion (Code, §p 4465, 4466) authorizing the jury 
 to return a verdict for a lower degree of the 
 crime charged than that for which defend- 
 ant is put on trial, or for any crime necessarily 
 included therein, whatever offense is neces- 
 sarily included in the crime charged in the 
 indictment may be punished, although the 
 indictmpnt contains no words specifically 
 designating the offense so included : Benham 
 V. State, 1-543. 
 
 1239. Therefore, held, that as every inten- 
 tional maiming and disfiguring includes an 
 assault and battery, a defendant indicted for 
 the former might be convicted of the latter, 
 although no assault was charged in the in- 
 dictment: Ibid. 
 
 1240. A simple assault is necessarily -in- 
 eluded in a charge of an assault with intent 
 to commit bodily injury : Orton v. State, 4 
 G. Gr., 140. 
 
 1241. Under an indictment for an assault 
 with intent to commit murder, defendant 
 may be convicted of assault and battery: 
 Dixon V. State, 3-416. 
 
 1242. Or of a simple assault: State v. 
 Shepard, 10-126 ; State v. White, 45-325. 
 
 1243. Assault with intent to commit man- 
 slaughter is necessarily included in a charge 
 of an assault with intent to commit murder: 
 State V. White, 45-325. 
 
 1244. Upon conviction of assault with in- 
 tent to commit great bodily injury, obtained 
 under an indictment of assault with intent 
 to commit murder, a sentence for a simple 
 assault may be proper : State .v. Scheie, 52- 
 608. 
 
 1 24.5. Under an indictment for murder in 
 the first degree, defendant may be convicted 
 of assault with intent to commit great bodily 
 injury, as well as of assault with intent to 
 murder, or with intent to maim : State v. 
 Parker, 66-586. 
 
 1246. While an assault and batteiy will 
 not in all cases be necessarily included in an 
 assault with intent to murder, yet under an 
 indictment charging the latter offense as 
 committed by acts amounting to assault and 
 battery, a conviction of assault and battery 
 would be warranted : State i\ Graham, 51-72. 
 
 1247. On an indictment formurder defend- 
 ant may be found guilty of manslaughter: 
 Gordon V. State, 3-410 ; State v. White, 45- 
 325. 
 
 1248. Although the offense consist of dif- 
 ferent degrees, and defendant is not found 
 guilty of any one of the degrees, he may still 
 be guilty of an offense necessarily included in 
 that for which he is indicted: Gordon v. 
 State, 3-410. 
 
 1249. A charge of the crime of rape neces- 
 sarily charges also the crime of assault with 
 intent to commit rape : State v. McLaugUin^ 
 44-82. 
 
CRIMINAL LAW, III, 10, g. 
 
 48T 
 
 Finding and. return of verdict. 
 
 1250. It also includes a simple assault: 
 State V. Vinsant, 49-241. 
 
 1251. Under an indictment for burglary, 
 defendant may be convicted of the offense of 
 entering a dwelling-house in the night-time : 
 State V. Maxwell, 42-208. 
 
 1252. The crime of larceny fi-om a dwelling- 
 house in the night-time and that of robbeiy 
 necessarily include the offense of larceny. A 
 defendant who is tried on an indictment 
 charging him with the commission of either 
 of such crimes may be convicted of simple 
 larceny ; therefore, an acquittal of one of such 
 crimes necessarily bars a subsequent prosecu- 
 tion for the other : State v. Mikesell, 70 . 
 
 1253. Where a greater penalty is provided 
 for the second or third conviction of an of- 
 fense than for the first conviction thereof, 
 and the defendant is put on trial for such 
 second offense, he may be convicted as for 
 the first commission of the offense : State v. 
 Ensley, 10-149 ; State v. Gaffenij, 66-263. 
 
 12.>4. V/here all the elements of one crime 
 we included in another which is distinguished 
 from the first simply in having distinct ele- 
 ments, the fact that the evidence shows the 
 commission of the second crime will not pre- 
 vent the punishment of defendant in the 
 prosecution for the first: State v. Qraff, 66-483. 
 
 1255. A defendant put on trial for an in- 
 dictable offense may be punished for an of- 
 fense necessarily included therein, although 
 the latter be of such a character that it is not 
 indictable, but only triable on information: 
 State V. Jarvis, 31^4; State v. Shepard, 10- 
 126. 
 
 1256. If defendant is found guilty of a 
 lesser offense included in the one for which 
 he is put on trial, such conviction operates 
 as an acquittal of the offense for which he 
 -was indicted, and if, on appeal, judgment is 
 reversed, he can only be tried a second time 
 for the offense of which he was convicted : 
 State V. Tweedy, 11-350; State v. demons, 
 51-2T'4. 
 
 That it is the duty of the court to instruct 
 with reference.to lower degrees of the offense 
 charged, or included crimes, see stipra, 
 ,§§ 1209-1217. 
 
 That in case of reasonable doubt as to the 
 degree of the offense, the jury shall convict 
 only of the lower degree, see infra, §S 1634 
 1635. 
 
 1257. Putting on trial for a higher de- 
 gree than charged: It is prejudicial error to 
 put the defendant upon trial for a higher 
 crime, or a higher degree of the crime, than 
 is charged in the indictment : State v. Boyle, 
 28-523; State v. Knoiise, 39-118; State v. 
 McNally, 32-580. 
 
 And see supra, §g 169-171. 
 
 1258. Under an indictment for murder in 
 the second degree, defendant cannot be con- 
 victed of murder in the first degree : Fonts v. 
 State, 4 G. Gr., 500. 
 
 1250. Directions as to verdict: No par- 
 ticular form of words is prescribed to be used 
 by the court in directing the jury to declare 
 their verdict : State v. Collins, 32-36. 
 
 1260. Calling names of jurors: The stat- 
 utory provision as to the calling of the names 
 of jurors when they return their verdict is 
 directory only, and a failure to observe it wUl 
 not constitute error sufficient to require the 
 reversal of the judgment unless prejudice is 
 shown : State v. Burge, 7-255. 
 
 1261. Sealed verdict: If, without consent 
 of parties or the court, the jury seal up their 
 verdict and separate, defendant is deprived 
 of the substantial right given him by statute 
 to poll the jury ; and therefore the receiving 
 of such verdict constitutes error: State v. 
 Callahan, 55-364. 
 
 1262. What sufficient verdict: If the in- 
 tention of the jury is not doubtful, the verdict 
 will be upheld even without correction in 
 form by the court: Harrell v. Stringfield, 
 Mor., 18. 
 
 1263. A verdict in a particular case held 
 Buflficient to authorize conviction: State v. 
 Bond, 8-540. 
 
 1264. Although it is not necessary for the 
 jury to find more than that the defendant is 
 guilty of the charge in the indictment, yet a 
 verdict finding specially as to the facts con- 
 stituting such guilt is sufficient to justify the 
 court in rejecting the portion relating to the 
 facts, and rendering judgment on the portion 
 constituting a general verdict : State v. Will- 
 iams, 8-533. 
 
 12 65. In a trial upon information, the 
 words " as charged in the indictment," ZieZd 
 mere surplusage, and of no effect on the ver- 
 dict : State v. SIcCombs, 13-436. 
 
 1266. Where the verdict recited that the 
 jury found the defendant "guilty of aiding 
 
4:88 
 
 CRIMINAL LAW, III, 10, g, h. 
 
 Finding and return of verdict. — New trial. 
 
 and concealing," etc., thus specifying the 
 crime cliarged in the indictment, held, that 
 it was a general and not a specific verdict: 
 State V. Turner, 19-144. 
 
 12C7. Where defendant was charged with 
 knowingly having in possession and uttering 
 a forged instrument, but in the caption and 
 indorsement of the indictment the crime 
 was designated as forgery, and the court, 
 while properly directing the jury as to the 
 facts necessary to establish the crime with 
 which defendant was properly charged, desig- 
 nated it as forgery, and gave the form of the 
 verdict as though that were the crime 
 charged, and the jury, following the form 
 thus given, found defendant " guilty of the 
 ci'ime of forgery as charged in the indict- 
 ment," held, that the verdict was simply in- 
 formal, and was not vitiated by the error in 
 designating the offense charged: State v. 
 Burgson, 53-318. 
 
 12(58. Reconsidering informal verdict: 
 Where the verdict in a criminal cause is spe- 
 cial in nature, and defective in not giving the 
 facts necessary to enable the court to enter 
 judgment, the jury should be directed to re- 
 tire for further deliberation, but the court 
 may, against defendant's objection, set aside 
 the verdict and order a retrial, and defendant 
 is not, in such case, entitled to be discharged : 
 State V. Arthur, 21-323. 
 
 13(>9. Where the jury, in a prosecution for 
 burglaiy, returned a verdict finding defend- 
 ant guilty of entering a house in the night- 
 time, and recommended him to the mercy of 
 the court, held, that such verdict did not 
 amount to a special verdict authorizing an 
 acquittal, but that, failing to respond to all 
 the facts necessary to a conviction, the jury 
 were properly du-eoted to reconsider it : State 
 V. Maxwell, 43-208. 
 
 1270. General verdict on several counts: 
 Where there is a general verdict of guilty on 
 an indictment containing several counts, if 
 any one of them is good, the judgment will 
 be supported: State v. Shelledy, 8-477, 511. 
 
 1271. Verdict against one of several de- 
 fendants: Where two or more are indicted 
 jointly for an offense, one may be found 
 guilty without regard to the others : State v. 
 McClintock, 8-303. 
 
 1272. Defects cured l)y verdict: After 
 verdict all objections to the proceedings of 
 
 the grand jury in finding the indictment 
 come too late : Sharp v. State, 3-454. 
 
 1273. The verdict does not cure irregulari- 
 ties in the trial or in the finding of the in- 
 dictment, such, for instance, as the refusal 
 to allow the defendant the right of challen"^ 
 to the grand jurors : State v. Osborne, 61-330. 
 
 h. JVew trial. 
 
 1274. Motion for; when to be made: A 
 
 motion for a new trial must be made before 
 judgment : State v. Bixby, 39-465. 
 
 1275. Presence of defendant, even in caee 
 of prosecution for a felony, is not required 
 at the argument and determination of a 
 motion for a new trial: State v. DecMotts, 
 19-447. 
 
 1276. Newly-diseovered evidence: The 
 statutes do not authorize a new trial in a 
 criminal action on the ground that testimony 
 material to the defense has been discovered 
 since the trial, which could not with reason- 
 able efforts have been discovered previous ' 
 thereto : State v. Bowman, 45-418. 
 
 1277. Newly-discovered evidence in a par- 
 ticular case, held sufficient to entitle defend- 
 ant to a new trial, the right to a new trial 
 on that ground not being discussed : State v. 
 Foster, 37-404. 
 
 1278. A new trial will not be granted on 
 account of the inability of defendant to pro- 
 cure certain evidence which was simply 
 cumulative and would cleaiiy not have war- 
 ranted a different verdict: State v. Nodal, 
 69-478. 
 
 1279. Misconduct of jury: That a juror 
 left the juiy room and was temporarily ab- 
 sent for a proper purpose, in charge of a 
 deputy sheriff, Jield not sufficient ground 
 for granting a new trial: State v. Bowman, 
 45-418. 
 
 12S0. The drinking of spirituous liquors 
 during the time when a jury is out for the 
 purpose of deliberating upon their verdict 
 is sufficient misconduct to reverse a judg- 
 ment on such verdict on appeal : State ii. 
 Baldy, 17-39. 
 
 See, also, as to misconduct of the jury in 
 drinking spirituous liquors, New Teials, 
 §§ 31-40. 
 
 1281. Where it is sought to set aside the 
 verdict of a jury on the ground of state- 
 
CRIMINAL LAW, UI, 10, h 
 
 489 
 
 New trial. 
 
 ments of one of the jurors as to facts not in 
 evidence, or the like, it is necessary to sliow 
 that prejudice resulted to the party com- 
 plaining. Prejudice will not be presunaed: 
 State V. Woodson, 41-425. 
 
 1282. Disqiialiflcatiou of juror (for in- 
 stance, not being an elector) is not waived by 
 failure to object to him for cause, and may 
 be a gi-ound for new trial ; but if defendant 
 knew at the time that the jury were sworn 
 that any of them were not qualified to act 
 as jurors, he would, by failure to object," 
 waive his right to object afterward. It must 
 appear, however, that defendant had knowl- 
 edge of the fact of disqualification before it 
 can be inferred that he waived his objection : 
 State V. Groome, 10-308. 
 
 1 283. But an objection to a juror on ac- 
 count of bias or prejudice is waived by fail- 
 ure to object at the proper time : Ibid. 
 
 1284. If the juror is examined at the 
 proper time as to whether he has formed or 
 expressed an unqualified opinion as to de- 
 fendant's guilt or innocence, and it should 
 afterwards appear that, on such examination, 
 he had sworn falsely as to not having formed 
 or expressed such opinion, that fact might be 
 a ground for a new trial. But defendant, to 
 take advantage thereof, must show by the 
 record that the juror was examined on oath 
 as to the fact: State v. Shelledy, 8-477, 508. 
 
 1285. Affldavits of jurors: In a criminal 
 case, the court should receive the testimony 
 of jurors as to any palpable misapprehension 
 of the instructions of the court as a ground 
 for a new trial: Packard v. United States, 
 1 G. Gr., 325. 
 
 Further as to affidavits of jurors, see New 
 
 Trials, §§ 183-310. 
 12!SG. Misconduct of district attorney: 
 
 By statute (Code, § 3636, as amended), any 
 ' reference by the district attorney to the fact 
 
 that defendant has not become a witness in 
 
 his own behalf is misconduct sufficient to 
 
 entitle defendant to a new trial: State v. 
 ! Graham, 62-108. 
 
 i' 1287. But where the evidence as to whether 
 
 '•• the district attoi-ney made such reference 
 
 in his argument or not is conflicting, the 
 } supreme court will abide by the action of the 
 
 {■ lower court in reference thereto: State v. 
 
 Maynes, 61-119. 
 $ ] 288. In a particular case, held, that the 
 
 fact of an improper reference by the dis- 
 trict attorney to the failure of defendant to 
 become a witness was not sufficiently shown 
 to require a reversal : State v. Black, 59-390. 
 
 1289. Where defendant makes himself a 
 witness and testifies as to a part only of his 
 defense, it is not improper for the district at- 
 torney to refer to defendant's omission to 
 testify as to other material facts within his 
 knowledge: State v. Tatman, 59-471. 
 
 Further as to defendant being a witness 
 in his own behalf, see infra, III, 13, b. 
 
 1290. In a particular case, held, that mis- 
 conduct of the district attorney in his open- 
 ing statement to tlie jury was such as to 
 require the granting of a new trial : State v. 
 Williams, 03-135. 
 
 1291. Misconduct of the district attorney 
 in asking improper questions which were 
 promptly excluded on objection, held not suf- 
 ficient in a particular case to require a new 
 trial : State v. Noble, 66-541. 
 
 1292. Incompetence of defendant's attor- 
 ney may, especially iu cases involving the 
 life of defendant, constitute a ground for a 
 new trial, but to justify a reversal upon such 
 ground, there should be a strong showing 
 both of incompetence and prejudice : State v. 
 Benge, 61-658. 
 
 1293. Remarks by the court, in passing 
 upon challenges to jurors, while uncalled 
 for, held not prejudicial to defendant and 
 therefore not a ground for a new trial : State 
 V. George, 63-683. 
 
 1294. Fair trial: In a particular case a 
 new trial was granted on appeal on the 
 ground that it appeared that under the cir- 
 cumstances of the case the prisoner had not 
 had a full, fair and impartial trial, although 
 no error of law was sufficiently shown: 
 Truloek v. State, 1-515. 
 
 1295. Surprise: The fact that defendant 
 is taken by surprise by the testimony of a 
 witness may be ground for a new trial: 
 Ibid. 
 
 1296. Defendant is not entitled to a new 
 trial on the ground of surprise in that his 
 counsel did not have sufficient time to con- 
 sult with regard to the defense, where no 
 motion for continuance was made on that 
 ground : State v. Benton, 65-483. 
 
 1297. Verdict against the evidenc:': 
 Where a conviction is clearly contrary to the- 
 
490 
 
 CEIMINAL LAW, III, 10, h, i, j. 
 
 New trial. — Arrest of judgment. — Sentence. 
 
 weight of evidence, the supreme court should 
 set it aside on appeal: State v.Woolsey, 30- 
 ■251. 
 
 1298. The supreme court will, on appeal, 
 interfere more readily with a verdict because 
 contrary to the weight of evidence in a crim- 
 inal than in a civil case : State v. Tomlinson, 
 11-401. 
 
 1299. But where every material allegation 
 of the indictment is supported by the evi- 
 dence, the supreme court must be satisfied 
 of the insufficiency of the evidence, to war- 
 rant the overruling of the action of the lower 
 court in refusing a new trial on that ground : 
 State V. Elliott, 15-72. 
 
 1300. The supreme court will but cau- 
 tiously interfere with verdicts, when it is 
 claimed that they ai-e against the evidence : 
 State V. Collins, 20-85. 
 
 1301. Where the jury has rendered a ver- 
 dict which the court has refused to set aside, 
 the supreme court will not interfere if the 
 correctness of the verdict depends upon the 
 credit to be given the testimony of witnesses 
 and there is nothing in such testimony ren- 
 dering its tmthfulness improbable : State v. 
 ■Quinn, 47-368. 
 
 1302. Where it does not appear from the 
 evidence of record in a criminal case that the 
 verdict was against the preponderance of evi- 
 dence, a new trial will not be granted on 
 appeal : State v. Stoker, 22-52. 
 
 1303. Where the bill of exceptions does 
 not profess to disclose the whole of the evi- 
 dence, the supreme court will presume there 
 was sufficient to warrant the verdict of the 
 jury. It will not reverse on the ground that 
 the verdict is against the weight of evidence, 
 unless it is clearly and manifestly so : State 
 V. Lyon, 10-340. 
 
 1304. In a particular case, /leM, that the 
 lower court should have sustained a motion 
 for a new trial on the ground of insufficiency 
 of evidence : State v. Hilton, 23-341. 
 
 i. Arrest of judg^ne'nt. 
 
 1305. The objection that it does not appear 
 from the indictment that it was found within 
 the statutory period of limitation after the 
 commission of the offense is not a gi-ound 
 for arrest of judgment: State v. Deitrick, 
 51-467. 
 
 130G. Where a motion in arrest of judg- 
 ment is sustained, the proceeding cannot be 
 pleaded in a subsequent prosecution as consti- 
 tuting a previous conviction or acquittal; 
 State V. Clark, 69-196. 
 
 j. Sentence. 
 
 1307. Time for sentence: Under the stat- 
 utory provision that the time for pronouncing 
 judgment must be at least three clear days 
 after the rendition of the verdict, if the court 
 remains in session so long, held, thatwherethe 
 record showed that the court was in session 
 more than three days after the verdict, the 
 statutory provision was imperative, and un- 
 less the record clearly rebutted the presump- 
 tion of prejudice it could not be disregarded; 
 and in such case the judgment was reversed 
 and the cause remanded for judgment upon 
 the verdict, with leave for defendant to show 
 any cause against the same which had not 
 been already passed upon : State v. Watrous, 
 18-489. 
 
 1 308. Where the defendant appears to have 
 been sentenced before the expiration of the 
 three days above mentioned, it will be pre- 
 sumed, in the absence of any showing to the 
 contrary, that the court deferred its judg- 
 ment to as remote a period as it reasonably 
 could : State v. Wood, 17-18 ; State v. Mar- 
 vin, 12-499. 
 
 1309. Under the SEime statutory provision, 
 which directs that judgment shall not be 
 pronounced in less than six hours after the 
 verdict is rendered, held, that where the 
 record did not show whether six hours inter- 
 vened between the plea of guilty and the 
 final adjournment of the term, and it ap- 
 peared that a continuance was made without 
 objection, the presumption would be that the 
 court adjoiu-ned within less than six hours, 
 and the case was continued for judgnient by 
 consent, and that there was no error in fail- 
 ing to pronounce judgment at the term in 
 which the plea of guilty was entered : State 
 V. Stevens, 47-276. 
 
 1310. Where the last day of the term was 
 fixed for pronouncing judgment, but upto 
 that day the cause was continued for judg- 
 ment until next term, when judgment was 
 pronounced, held, that in the absence of a 
 showing to the conti'ary, and of any objection 
 
CRIMINAL LAW, III, 10, j. 
 
 491 
 
 Sentence. 
 
 at the time, it would be presumed that the con- 
 tinuance was for good cause, or at the request 
 •of defendant : State v. Miller, 53-84. 
 
 1311. It is not error to render judgment 
 for the payment of a fine at the next term 
 after conviction : State v. Ray, 50-530. 
 
 1312. Opportunity to show cause why 
 jndgmeut should not be rendered: The 
 statutory provision that defendant shall be 
 informed of the nature of the indictment and 
 of his plea and the verdict thereon, and shall 
 be asked whether he has any legal cause to 
 show why judgment should not be j)ro- 
 nounced against him, is merely declarative 
 of the common law; Such action of tiae 
 court is not required to b^ made matter of 
 record, although it may properly be done, 
 but no presumption of its omission will arise 
 from the fact that it does not appear of rec- 
 ord: State V. Wood, 17-18; State v. Stiefle, 
 13-603. 
 
 1313. Unless it otherwise appears, it will 
 be presumed that such steps were properly 
 -talien: State v. Wells, 46-662. 
 
 1314. The fact that it does not appear that 
 ■defendant had an opportunity to present mat- 
 ter, in mitigation of sentence, on a plea of 
 guilty, is no ground for a new trial, it not 
 appearing that he was in any way deprived 
 of such opportunity: State v. Beininghaus, 
 43-149. 
 
 1315. It appearing that defendant had all 
 the opportunity to prepare an application for 
 a new trial or motion in arrest of judgment 
 and showing in mitigation of punishment 
 which could have been necessary, held, that 
 the failure to fix any definite time for 
 judgment after a continuance upon a plea of 
 guilty was error without prejudice: State v. 
 Stevens, 47-376. 
 
 1310,. It is not error for the judge to re- 
 mark, in connection with the statement to 
 the defendant of the charge against him, his 
 plea thereto, the verdict of the jury, etc., 
 upon the circumstances of the ofilense, and 
 to state the reasons impelling him to pro- 
 nounce against defendant a particular pen- 
 alty imposed upon him. There is certainly 
 no impropriety in the practice in this respect 
 Tecognizeil in many of the courts of this 
 state : State v. Hale, 65-575. 
 
 1317. Judgment on plea in bar: Where 
 defendant interposes only the plea of former 
 
 conviction or acquittal, without pleading not 
 guilty, as he might do in connection there- 
 with, and upon verdict being found against 
 him he does not ask leave to plead over, 
 judgment may properly be rendered against 
 him without further trial as to his guilt: 
 State V. Green, 16-339. 
 
 1318. Cumulative sentence: Where two 
 judgments of imprisonment against a de- 
 fendant were rendered on the same day, but 
 no provision was made as to the commence- 
 ment of either term as directed by statute, 
 held, that the prisoner should be kept in con- 
 finement until both were served out, and that 
 the term of imprisonment on the judgment 
 last rendered would commence on the expi- 
 ration of that under the first. Two terms of 
 imprisonment cannot be concurrent : Mieir v. 
 McMillan, 51-240. 
 
 1319. Imprisonment suffered before sen- 
 tence : Where defendant has been imprisoned 
 during appeal and the conviction is after- 
 wards reversed, and he is again convicted 
 and sentenced, it will be presumed that the 
 court in imposing the second sentence took 
 into account the imprisonment served during 
 the appeal, as required to do by statute 
 (Code, S 4545) : State v. Hopkins, 67-285. 
 
 1320. Sentence for included crime : Where 
 defendant, under indictment for assault with 
 intent to murder, was found guilty of assault 
 with intent to commit great bodily injury, 
 and the court, doubting its authority to sen- 
 tence for the latter offense under the indict- 
 ment, sentenced for a simple assault, held, 
 that there was no error prejudicial to de- 
 fendant: State V. Scheie, 52-608. 
 
 1321. Seiitence to liard labor: Where the 
 jury found defendant guilty of murder in 
 the first degree and directed that he should 
 be punished by imprisonment in the peniten- 
 tiary at hard labor for life, and in rendering 
 judgment the court sentenced to imprison- 
 ment in the penitentiary for life, held, that 
 the judgment must be presumed to mean 
 imprisonment at hard labor, and sufficiently 
 corresponded with the verdict : State v. Cole, 
 63-695. 
 
 1322. Imprisonment for non-payment of 
 fine: The provisions (Code, §§4509, 4689) that 
 a judgment that defendant pay a fine may 
 also direct that he be imprisoned until the 
 fine is satisfied, specifying the extent of the 
 
492 
 
 CRIMINAL LAW, III, 10, j; 11. 
 
 Sentence. — Jeopardy. 
 
 imprisonment, which shall not exceed one 
 day for each three and one-third dollars of 
 fine, are directory only. The extent of im- 
 prisonment for non-payment of a fine being 
 thus fixed, a judgment that defendant be 
 imprisoned until the fine is paid will not be 
 void : Jackson v. Boyd, 53-536. 
 
 1323. But when imprisonment is imposed 
 under any statute the court should fix the 
 extent of the imprisonment. To this extent 
 the provision is mandatory: Ex parte 
 Tuicher, 69-398. 
 
 1324. These statutory provisions are appli- 
 cable to a fine imposed under Code, § 1540 
 or g 1542, providing punishment for violation 
 of the prohibitory liquor law, as such sections 
 are amended by 30 Gr. A., ch. 148, although it 
 is therein provided defendant shall stand 
 committed until the fine and costs assessed 
 against him are paid : Ibid. 
 
 1325. Although a judgment for failure to 
 pay the $500 fine authorized under the pro- 
 hibitory liquor law for violation of an in- 
 junction should limit the imprisonment to 
 one hundred and fifty days, nevertheless a 
 failure to make such order wUl not render a 
 reversal of the judgment of fine and imprison- 
 ment necessary, but the judgment can be 
 corrected on appeal : Jordan v. Circuit Court, 
 69-177. 
 
 1326. There cannot be imprisonment for 
 non-payment of a fine unless the judgment 
 so orders : Lanpher v. Dewell, 56-153. 
 
 1327. The foregoing provisions are appli- 
 cable where the punishment is fine only, and 
 not fine and imprisonment, and the extent of 
 the imprisonment should be specified, but a 
 failure to do so will not render the judgment 
 void. It may be corrected on appeal : State 
 V. Myers, 44-580. 
 
 132$. Such statutory provision applies 
 only to the fine and not to the costs : State 
 V. Erwin, 44^637. 
 
 1329. But it may be provided by statute 
 that defendant be imprisoned for non-pay- 
 ment of costs as well as fine : Albertson v. 
 Kriechbaum, 65-11. 
 
 1330. Where imprisonment for non-pay- 
 ment of fine, or fine and costs, is authorized, 
 such imprisonment is not a portion of the 
 punishment for the crime, but only a method 
 of enforcing payment of the fine or fine and 
 costs: Ibid. 
 
 1331. Therefore, hdd, that a statute mak- 
 ing a crime punishable by fine not exceeding 
 $100, and providing for imprisonment until 
 payment of fine and costs, did not take the 
 crime out of the jurisdiction of a justice of 
 the peace : Ibid. 
 
 1332. The duration of the imprisonment 
 cannot be determined or limited by a partial 
 payment of the fine : Galles v. Wilcox, 68- 
 664. 
 
 1333. For violation of a city ordinance a 
 defendant may be imprisoned until fine and 
 costs are paid (Code, g 484) : State v. Wells, 
 46-669. 
 
 1334. The fact of imprisonment for non- 
 payment of a fine to the limit of the law, as 
 above specified, does not operate as a satis- 
 faction of the judgment: State v. Jordan, 
 39-387; State v. Anieerda, 40-151 ; Albertson 
 V. Kriechbaum, 65-11. 
 
 If defendant is released under the provision 
 as to poor convicts, upon giving a note, the 
 judgment is satisfied : Infra, § 1720. 
 
 1335. Under the statutory provision that 
 defendant may be sentenced to hard labor for 
 non-payment of a fine (Code, § 4736), he is to 
 be credited with $1.50 per day upon the judg- 
 ment against him, but the duration of his 
 imprisonment cannot exceed that specified in 
 the statutory provision, limiting such impris- 
 onment to one day for each three and one- 
 third dollars of fine : Keokuk v. Dressell, 47- 
 597. 
 
 Further as to imprisonment, see infra, 
 III, 15. 
 
 1336. Costs: Payment of a fine imposed 
 does not satisfy the costs, and execution may 
 issue against defendant therefor: State v. 
 Gray, 35-503 ; Gray v. Ferreby, 36-146. 
 
 Further as to costs, see infra, III, 17. 
 
 1337. Liberation of poor convicts: A- 
 prisoner who, having been confined for the 
 non-payment of a fine, is liberated under the 
 provisions as to poor convicts (Code, § 4611), 
 is entitled to have the judgment against him 
 satisfied : State v. Van Vleet, 23-168. 
 
 11. Jeopardy y' jprevious conviction or 
 acquittal. 
 
 As to the constitutional provision in regard 
 to being twice put in jeopardy, see Consti- 
 tutional Law, gg 77-80. 
 
CRIMINAL LAW, III, 11. 
 
 493 
 
 Jeopardy ; previous conviction or acquittal. 
 
 1338. Dismissal of prosecution: Defend- 
 ant being put upon trial under charge of a 
 public offense, it is not within the scope of 
 the authority of either the prosecuting at- 
 torney or of the court to take the case from 
 the jury of his own arbitrary will and 
 without a controlling cause, and again hold 
 defendant to trial on the same charge, al- 
 though it be newly presented. Such pro- 
 ceeding amounts to an acquittal, and may be 
 pleaded as a bar : State v. Callendine, 8-288. 
 
 1339. A nolle prosequi may be entered be- 
 fore the trial is entered upon, but after plea 
 and the jury is sworn and the evidence is in 
 it will amount to an acquittal : Ibid. 
 
 1340. The fact that material witnesses for 
 the prosecution cannot be called because 
 their names are not indorsed on the indict- 
 ment will not be such a peremptory or con- 
 trolling cause as to justify the court in dis- 
 missing the case: Ibid. 
 
 1341. New trial: The granting of a con- 
 tinuance, because of the inability of prose- 
 cution to introduce material evidence which 
 was not before the gi'and jury, and notice of 
 which was not given to defendant before the 
 trial, will not bar a subsequent trial in pursu- 
 ance of such continuance: State v. Parker, 
 66-586 ; State v. Falconer, 70 , 
 
 1342. Discharge of jury: The fact that 
 in the exercise of sound discretion the jury 
 is discharged for failure to agree does not 
 entitle defendant to be released as having 
 been once in jeopardy: State v. Vaughan, 
 39-286. 
 
 1343. Where, after all the evidence had 
 been introduced, the judge, on receipt of a 
 telegram announcing the sickness of his 
 wife, adjourned court for a few days to go 
 home, and on the day to which the court 
 
 _ was adjourned, by telegram adjourned court 
 over the term, held, that there was sufficient 
 cause to wan-ant the adjournment in the dis- 
 cretion of the judge, and that defendant 
 could not, on a subsequent trial, plead pre- 
 vious jeopardy : State v. Tatman, 59-471. 
 
 1344. Conviction of a lower degree of 
 offense: A verdict of guilty in a lower de- 
 gree of the crime than that charged in the 
 indictment, or guilty of a crime necessarily 
 included in that charged, operates as an ac- 
 quittal of a higher degree or a higher crime, 
 and defendant cannot, after having secui-ed 
 
 a revei-sal, be again put upon trial for a higher 
 degree or a higher crime than that of which 
 he was convicted: State v. Tweedy, 11-350; 
 State V. demons, 51-374. 
 
 1345. Nor will the fact that defendant, 
 being put on trial a second time for the 
 higher degree or higher crime, is again found 
 gidlty of only the lower degree or lower 
 crime of which he was previously convicted, 
 render the error in improperly putting him 
 on trial a second time of the higher degree or 
 higher crime, error without prejudice : State 
 V. Tweedy, 11-350. 
 
 1346. Second trial for higher crime: A 
 conviction or acquittal of a minor offense 
 will not bar prosecution for a greater one, or 
 a higher degree of the same offense, except 
 that an acquittal for manslaughter will bar 
 an indictment for murder. Therefore, held, 
 that a conviction for assault and battery 
 would not bar a prosecution for assault with 
 intent to do great bodily injury: State v. 
 Foster, 33-525. 
 
 1347. A former conviction or acquittal for 
 the crime of petit larceny will bar a subse- 
 quent prosecution for the offense of larceny 
 from the person, although the first offense is 
 misdemeanor triable before a justice of the 
 peace, and the other is a felony: State v. 
 Gleason, 56-203. 
 
 1348. Where the same act constitutes 
 two crimes: A previous prosecution for an 
 act as constituting one crime will not bar a 
 subsequent prosecution for a greater crime 
 committed in the same act. For instance, a 
 prosecution for assault will not bar a subse- 
 quent prosecution for a riot committed in 
 the same transaction : Seott v. United States, 
 Mor., 143. 
 
 1349. A conviction for permitting a cer- 
 tain minor to remain in a saloon and play 
 biUiards at one date will not bar a prosecu- 
 tion for allowing another minor to do the 
 same at another date: State v. Derichs, 42- 
 196. 
 
 1350. The charge of an assault upon two 
 persons is, in a, legal sense, so far different 
 from an assault upon one, that proof of the 
 commission of the act in regard to one will 
 not sustain an indictment charging an as- 
 sault upon two; therefore, in a subsequent 
 indictment for assault and battery upon one 
 of the persons named, defendant could not 
 
49i 
 
 CRIMINAL LAW, III, 11, 12. 
 
 Jeopardy; previous conviction or acquittal. — Bail. 
 
 show, under a plea of a former conviction or 
 acquittal, a judgment under an indictment 
 for an assault upon two. Such reasoning 
 does not apply, however, to an indictment 
 for an assault by two. In such case either 
 one may be acquitted either on a joint or on 
 a separate indictment : State v. MoClintock, 
 8-203. 
 
 1351. The act of using a building for the 
 keeping of intoxicating liquors with intent 
 to sell in violation of law, and that of using 
 a building for the sale of the same in viola- 
 tion of law, are each by statute declared to 
 be the crime of nuisance. Therefore a con- 
 viction for nuisance committed in one of 
 these two ways will bar a prosecution for the 
 same crime committed in the other way in 
 the same building prior to the first indict- 
 ment : State v. Layion, 25-193. 
 
 1352. Where a person by one muscular ac- 
 tion and one voUtion passed four forged 
 checks, held, that he committed one crime, 
 and that a conviction for passing one of such 
 checks would bar a subsequent prosecution 
 as to the others : State v. Egglesht, 41-574. 
 
 1353. Where the same essential element is 
 included in two or more crimes, as, for in- 
 stance, larceny in the crimes of larceny from a 
 dwelling-house in the night-time and rob- 
 bery, a previous conviction or acquittal for 
 one of such crimes will bar a subsequent 
 prosecution for the other. In the prosecu- 
 tion for the one crime the defendant might 
 be convicted of the included crime : State v. 
 Mikesell, 70 . 
 
 1354. Acts lor which conviction might 
 liave been had: Where it appeared that un- 
 der a previous prosecution for selling intoxi- 
 cating liquor described as stomach bitters, 
 defendant was in fact tried for all offenses 
 for sales of intoxicating liquors, held, that he 
 could riot be prosecuted a second time for the 
 sale of dandelion bitters during the time 
 covered by the first prosecution: State v. 
 Sterrenberg, 69-544. 
 
 1355. Crime against state and United 
 States: The crime of counterfeiting the coin 
 of the United States may be punished under 
 state law, congress not having attempted 
 to exercise the exclusive power of punishing 
 such offenses: State v. MoPherson, 9-53. 
 
 1356. Offense against state and city: An 
 ordinance of a city punishing an act which 
 
 is punishable under the laws of the state is 
 not, on that account, void. The act may be 
 punished under both without violating any 
 colistitutional principle: Bloomfidd v. Trim- 
 ble, 54- 399. 
 
 But a city cannot, by ordinance, provide 
 for the punishment of acts which are al- 
 ready made crimes by statute : See Munici- 
 pal COKPOEATIONS, § 276. 
 
 1357. Evidence as to identity of offense: 
 Where defendant pleaded a former convic- 
 tion before a justice of the peace, held proper 
 to ask the justice before whom the former 
 conviction was claimed to have been had 
 whether the offense then charged was the 
 same as testified to by the witnesses on the 
 last trial, and whether the evidence was the 
 same : State v. Maxwell, 51-314. 
 
 1358. Fraudnleut acquittal or convic- 
 tion: Where a person guilty of a criminal 
 act procures a fraudulent conviction or ac- 
 quittal by collusion, the state may elect to 
 treat the action of the magistrate as a farce 
 and the judgment a nullity, and it may com- 
 mence a new prosecution: State v. Green, 
 16-239. 
 
 1359. Where a defendant I'elies upon a 
 plea of a former conviction, and the state 
 claims that it is not concluded thereby for 
 the reason that it was fraudulently obtained, 
 the burden of proof is upon the state to es- 
 tablish the fraud : State v. Maxwell, 51-814. 
 
 12. Bail. 
 
 1360. Execution of bond: The bond, un- 
 der the statute, should be executed and ac- 
 knowledged before the clerk of the district 
 court, and the sureties should justify before 
 him ; but these are directory matters, and 
 where the bond has been accepted it will be 
 valid though it was executed and the sureties 
 qualified before the clerk of the court in 
 another county, and though it was not ac- 
 knowledged at all. The execution, its accept- 
 ance, the discharge of the prisoner thereon, 
 and his failure to appear according to its 
 terms, are the essential matters. It is not 
 necessary to call the sureties and have theii" 
 default entered at the time the defendant 
 fails to appear: State v. Wells, 36-338. 
 
 1361. Before an accused held to bail can 
 demand a discharge upon tendering bond and 
 surety, his baU must justify as requii-ed by 
 
CRIMINAL LAW, ni, 12. 
 
 495 
 
 Bail. 
 
 statute ; but a failure to require such justi- 
 fication will not render the bond void, nor 
 discharge the sureties : Ibid. ; State v. Emily, 
 24-24. 
 
 1362. The judge of the court has power to 
 certify to the acknowledgment of the sureties 
 of the bond, made in open court: State v. 
 Elgin, 11-316. 
 
 1363. The voluntary execution of a bail 
 bond does not estop the obligors from deny- 
 ing the jurisdiction of the magistrate who 
 takes it in a case where the proceedings in 
 which it is taken are without authority : 
 State V. Hufford, 28-391. 
 
 1364. Acceptance of bond: Before the re- 
 cognizance can liave any force, it must ap- 
 pear that it was accepted as a valid undertak- 
 ing by a court or magistrate of competent 
 authority : State v. Carr, 4^289. 
 
 1 365. A failure by the clerk to indorse the 
 bond as ' ' accepted " will not affect the right 
 of the state to recover thereon: State v. 
 Emily, 34-24. 
 
 1366. Where a prisoner has been dis- 
 charged upon the filing of a bond, the ac- 
 ceptance by the ofiicer will be conclusively 
 presumed ; no written approval thereon is 
 necessary to its validity: State v. Wright, 
 37-522. 
 
 1367. A bond which is not authorized by 
 statute, as, for instance, where it is accepted 
 by a magistrate who has no authority to take 
 bail, will not become a lien as a statutory obli- 
 gation, but if it has secured the release of the 
 principal it may be enforced by action : State 
 V. Cannon, 34-322. 
 
 1368. Filing: The clerk should file the 
 bond, and while, if it should appear that it 
 was deposited with the clerk before the 
 forfeiture was declared, an omission to 
 mark it, as filed might be remedied by subse- 
 quent filing, yet the fact that it was so de- 
 posited before forfeiture should be averred 
 and proved, otherwise the bond should not 
 be admitted in evidence : State v. Klingman, 
 14-404. 
 
 1369. If the bond is deposited with the 
 clerk of the proper county as a record, the 
 fact that it is not marked filed is immaterial : 
 State V. Merrihew, 47-112, 130. 
 
 1370. The form of bond given in the stat- 
 ute is substantially sufficient for the bond re- 
 quired upon change of venue : Ibid., 119, 121. 
 
 1371. The description of the crime in the- 
 bail bond need not be so particular as in an 
 indictment. Where it was specified merely 
 as " seduction" it was held sufficient: State 
 V. Marshall, 31-148. 
 
 1372. It is not necessary that the bond re- 
 fer to the offense except in general terms. A 
 description of the crime as " lai-ceny in the 
 night-time,'' held sufficient: State v. Merri- 
 hew, 47-113. 
 
 1373. An averment of the petition on a 
 bail bond alleging that it was taken in writ- 
 ing in such manner and form as the law 
 provides and directs, held sufficient to show 
 that the requirements of the law applica- 
 ble to such cases were complied with : Shelby 
 County V. Simmonds, 33-345. 
 
 1374. Prcsumptious: A bail bond given 
 upon commitment by a magistrate is prima 
 facie evidence that the magistrate made a 
 finding that a public offense liad been com- 
 mitted, and the execution of the bond and 
 its acceptance are presumptive evidence that 
 it was taken and received in place of the 
 body of the accused : State v. Patterson, 23- 
 575. 
 
 1375. Signatare: It is not essential that 
 defendant should sign the bond : Ibid. 
 
 1376. 'VVho may take: The statute does 
 not authorize the clerk of the court to take 
 bail in vacation after arrest on a bench war- 
 rant: State V. Carothers, 11-273. 
 
 1377. On appeal: Failure of the court in 
 rendering judgment to fix the bail required 
 pending appeal, as required by Code, § 4511, 
 will not entitle defendant to discharge on 
 habeas corpus. His only remedy in such pro- 
 ceeding will be to have the amount of such 
 bail fixed : Murphy v. McMillan, 59-515. 
 
 1378. After the bail required on appeal has 
 been given and the appeal prosecuted, it is too 
 late to complain of the amount of ball re- 
 quired : State v. Wells, 46-662. 
 
 1379. The bond provided for on appeal 
 from conviction before a justice of the peace 
 is for the appearance of defendant, and not 
 that he will pay the amount adjudged against 
 him on appeal: State v. Beneke, 9-303. 
 
 1380. For what sureties liable: Sureties 
 on a bond are not only bound for the appear- 
 ance of the accused at the time and place 
 mentioned therein, but also that he shall 
 abide the order and judgment of the court 
 
496 
 
 CRIMINAL LAW, III, 12. 
 
 BaU. 
 
 and not depart without leave. Therefore, 
 where change of venue is granted, the sure- 
 ties remain liable on the original bond, the 
 statutory provision for the giving of a new 
 bond being directory only: State v. Broivn, 
 16-314. 
 
 1381. A failure to hold the term at which 
 defendant is held to appear will not release 
 his sureties from their obligation to have him 
 at the next term, although no order is made 
 in the case at the term mentioned in the 
 bond : Ibid. ; State v. Ryan, 23-406. 
 
 1382. That defendant held to answer for 
 one crime is indicted for a higher crime does 
 not release the sureties on his bond : State v. 
 Bryant, 55-451. 
 
 1383. Re-arrest of defendant: Where the 
 accused who is out on bail is re-arrested for 
 some of the causes specified by statute, he is 
 then completely in the custody of the state, 
 and his sureties having no more control over 
 him are released from responsibility: State 
 V. Holmes, 23-458; State v. Orsler, 48-343. 
 
 1384. Surrender of defendant by sureties: 
 A surety is not released by a surrender of the 
 prisoner to the sherifif, unless in the manner 
 pointed out by statute (Code, § 4593) : State v. 
 Tieman, 39-474. 
 
 1385. That the bail presented to the sheriff 
 a certified copy of the bond, and in writing 
 directed him to arrest defendant, held, not to 
 impose any duty upon the sheriff, or be a 
 surrender of defendant as contemplated in 
 the statute : State v. Kraner, 50-582. 
 
 1386. Detention in another jurisdiction: 
 The an-est and detention in another county 
 of a prisoner who is under bond for appear- 
 ance does not have the effect to release his 
 sureties, in the absence of a showing by them 
 that proper steps were taken to secure his 
 production by the state at the proper time : 
 State V. Merrihew, 47-112, 115. 
 
 1387. The fact that defendant is in the 
 military service of the United States or 
 another state will not excuse the sureties for 
 his non-appearance : State v. Scott, 20-63. 
 
 1388. What constitntes forfeiture: Fail- 
 ure of a defendant, indicted for misdemeanor, 
 to appear in person at the trial, or at the ren- 
 dition of verdict, or at the sentence, will not 
 constitute forfeiture of his bond if he makes 
 appearance by counsel and thereby waives his 
 personal presence: State v. Conneham, 57-351. 
 
 1389. Failure of defendant to appear at 
 the time for challenging the grand jury does 
 not constitute a default amounting to a for- 
 f eittire of his bond : State v. Klingman, 14- 
 404; Ringgold County v. Ross, 40-176. 
 
 1300. A bond to appear to answer the in- 
 dictment, and not depart without leave of 
 court, and obey all orders of the comt, is 
 forfeited by failure of accused to surren- 
 der himself, upon being called, in satisfac- 
 tion of the judgment, after he has appeared 
 and pleaded guilt.y : State v. Kraner, 50-575, 
 
 1391. A court will not be justified in hold- 
 ing bail, who has become responsible for the 
 appearance of an accused to answer a cer- 
 tain charge, also responsible for his appear- 
 ance to answer another and different charge, 
 even in the same court : State v. Brown, 16- 
 314. 
 
 1392. A bail bond given upon being bound 
 over by a magistrate to appear at the district 
 court to answer to the charge of manslaugh- 
 ter is not rendered invalid by the fact that 
 the accused is subsequently indicted for mur- 
 der instead of manslaughter. The oWigation 
 of the bond is ''to abide the judgment and 
 order of the court and not to depart without 
 leave of the same :'" State v. Bryant, 55-451. 
 
 1393. Entry of forfeiture: A forfeiture of 
 the bail bond cannot be entered until the 
 bond is before the court : State ii. Klingman, 
 
 14-404. 
 
 I 
 
 1394. The forfeiture need not be taken on 
 the very day on which accused was required 
 to appear, but may be taken on any subse- 
 quent day of that or a succeeding term, 
 unless defendant has been surrendered or 
 discharged. It is not necessary that the ac- 
 cused or his bail have notice of the time 
 when forfeiture will be claimed: State v. 
 Brown, 16-314. 
 
 1395. If a forfeiture of bail is not entered 
 at the first term it will be presumed that the 
 cause was continued by operation of law: 
 State V. Merrihew, 47-112, 119. 
 
 1396. In a case where defendant was 
 bound to appear before a justice, it was held 
 that a default should not have been entered 
 against him until he was formally called, and 
 that the entry of default by the justice not 
 showing that defendant was called, no breach 
 of the bond was shown; but the record of 
 the justice was held conclusive as to the ap- 
 
CRIMINAL LAW, III, 13. 
 
 497 
 
 Bail. 
 
 IJeai-ance or non-appearance of defendant, 
 and not to be contradicted by extrinsic evi- 
 dence : State v. Gorley, 2-52, 
 
 1397. At the time of rendering sentence 
 for a misdemeanor the court may enter de- 
 fault of defendant for not appearing to sub- 
 mit to the judgment and thereupon declare 
 forfeiture of the bail bond : State v. Hou-arth, 
 70 . 
 
 1398. One entry of default against defend- 
 ants jointly indicted, who have both failed 
 to appear, is sufficient although they have 
 given separate bonds: State v. Lighton, 4 G. 
 Gr., 278. 
 
 1399. A record of default cannot be varied 
 by parol evidence : State v. demons, 9-534. 
 
 1400. The record made by the com-t of the 
 forfeiture of a bail bond by failure of the 
 person bound to appear is conclusive evidence 
 of the forfeiture, and a mere denial of the 
 breach of the bond raises no issue : State v. 
 Bryant, 55-451. 
 
 1401. De.ath of principal in the bond two 
 years after its forfeiture, held not a defense to 
 an action thereon against the surety : State 
 V. Scott, 20-63. 
 
 1402. Arrest of defendant after forfeit- 
 ure: Where, after default upon the bond is 
 entered, the defendant is arrested upon a 
 bench warrant and held for trial, the for- 
 feiture of the bond is not thereby discharged : 
 State V. Emily, 24-24. 
 
 1403. The discretion conferred on the 
 court with reference to relieving sui-eties 
 from the effect of default upon the subse- 
 quent arrest or surrender of defendant will 
 not be interfered with on appeal unless abuse 
 of discretion is shown : State v. Kraner, 50- 
 575 ; State v. Kraner, 50-582. 
 
 1404. It would require a very strong show- 
 ing of abuse to justify the supreme court in 
 interfering with such discretion: State v. 
 Hirronemus, 50-545. 
 
 1405. If there is no surrender or arrest of 
 defendant, the court has no authority to grant 
 rehef from the forfeiture : State v. Scott, 20-63. 
 
 1406. When a person held to appear was 
 indicted and subsequently ordered arrested 
 and was so arrested, held, that it would be 
 presumed that such arrest was on the ground 
 that the bail was insufficient and that the 
 surety was therefore released : State v. Ors- 
 Icr, 48-343. 
 
 Vol. 1—82 
 
 1407. The failure or refusal of the sheriff 
 to arrest the defendant will not e.^onerate 
 the surety. It is the latter's duty to see that 
 defendant is arrested, and if he fail in that 
 duty he is liable on the bond: State v. 
 Kraner, 50-583. 
 
 1408. Habeas corpus: The fact that a per- 
 son released on bail voluntarily submits to 
 being taken in custody by the surety on his 
 bail, and then brings action of habeas corpun 
 to secure release from such restraint with 
 the sole purpose of testing the constitution- 
 ality of the statute under which he is ar- 
 rested, will not prevent the court from 
 trying the habeas corpus proceeding and de- 
 termining the question at issue: Brown v. 
 Dvffus, 66-193. 
 
 1409. The fact that a person arrested has 
 previously procured his sureties to go his 
 bail under a statute the validity of which he 
 proposes to test, will estop him from in any 
 way rendering them Uable by contesting the 
 validity of such statute, but would not pre- 
 vent his contesting the Validity for the pur- 
 pose of releasing them entirely from liabil- 
 ity: Ibid. 
 
 1410. Suit on the bond: Action upon a 
 bail bond given for appearance upon a change 
 of venue should be brought in the county 
 to which the venue is changed: Decatur 
 County V. Maxwell, 86-398. 
 
 141 1. Suit for the penalty on the bail bond 
 may be brought in the name of the county : 
 Shelby County v. Simmonds, 33-345. 
 
 1412. Where a bond is given for the ap- 
 pearance of the defendant to answer an in- 
 dictment, and afterward a change of venue 
 is granted, on his application, to another 
 county, and he fails to appear in the action 
 in the county to which the change is granted, 
 action on the bond for such failure' to appear 
 should be bi'ought in the latter county : Lucas 
 County V. Wilson, 59-354. 
 
 1413. Action on a bond for the appearance 
 of defendant before a magistrate may be 
 brought in the district court : State v. Emer- 
 son, 16-206. 
 
 1414. Under the provisions of Code of '51, 
 which allowed an action of scire facias to 
 be brought upon a bail bond, held, that an 
 action of detinue would nevertheless Ue as at 
 common law : State v. Gorley, 2-53. 
 
 As to what county is entitled to the forfeit- 
 
498 
 
 CRIMINAL LAW, III, 13, a. 
 
 Evidence ; circumstantial ; corpus delicti ; failure to produce. 
 
 ure on a bail bond, for the benefit of the 
 school fund, see infra, § 1728. 
 
 1415. Measure of damages: Upon forfeit- 
 ure of a bail bond when the punishment is a 
 fine, the measure of damages is not the 
 amount of the fine and costs, but the pen- 
 alty named in the bond: State v. Hirrone- 
 mus, 50-545. 
 
 13. M)ide7ice; lurden of proof; 
 amount of proof. 
 
 As to the right of defendant to be con- 
 fronted by the witnesses against him, see 
 Constitutional Law, g§ 65-73. 
 
 As to the admissibility of minutes of testi- 
 mony on preliminary examination or before 
 grand jury, see Evidence, g§ 132-135. 
 
 As to method of proving testimony given 
 on the preliminary examination by a witness 
 since deceased, see Evidence, §§ 137-140. 
 
 a. Circumstantial evidence; failure 
 to produce evidence; identity of 
 defenda/nt; alibi. 
 
 1416. Circumstantial evidence: To jus- 
 tify the verdict of guilty upon circumstantial 
 evidence it is necessary not only that the cir- 
 cumstances should all concur to show that 
 defendant committed the crime, but that 
 they are inconsistent with any other rational 
 conclusion : State v. Johnson, 19-330. 
 
 1417. Whether, when a party is sought to 
 be convicted upon circumstantial evidence 
 alone, the evidence of the circumstances 
 must be du-ect and not circumstantial, 
 quaere: State v. Clemens^. 51-274. 
 
 1418. In establishing defendant's guilt by 
 circumstantial evidence, the state is not lim- 
 ited to proof of circumstances tending di- 
 rectly to show defendant's guilt. Any 
 competent evidence tending to prove any ma- 
 terial fact in the case is therefore admissible : 
 State i}. Reno, 67-587. 
 
 1419. An instruction at length upon the 
 weight to be given to circumstantial evidence, 
 to the effect that strong evidence of that 
 kind is often the most satisfactory of any 
 from which to draw the conclusion of guilt, 
 and explaining the reason thereof, held not 
 error : State v. Moelchen, 53-310. 
 
 1430. Evidence with reference to the pres- 
 
 ence of defendant near where stolen goods 
 were concealed, and of his attempt to escape 
 aiTest, held sufficient to warrant the verdict 
 of guilty of the larceny : State v. Moody, 50- 
 443. 
 
 1421. Where tracks of a horse's feet were 
 found near the place where the crime of 
 arson was committed, leading to defendant's 
 barn, and on measurement the tracks were 
 found to correspond in size to the feet of one 
 of the horses found in defendant's barn the 
 naorning after the crime, but there was no 
 other evidence tending to connect defendant 
 with the commission of the offense, and it 
 appeared that defendant's stable door was not 
 locked at the time, held, that the circum- 
 stances were insufficient of themselves to es- 
 tablish his guUt : State v. Melieh, 65-614. 
 
 1422. In a particular case, held, that cir- 
 cumstantial evidence relied upon to show de- 
 fendant's guilt as accessory to the crime of 
 murder was not sufficient to support a con- 
 viction : State v. Clouser, 69-813. 
 
 As to evidence of good character to rebut 
 circumstantial evidence of guilt, see infra, 
 §§ 1559, 1563. 
 
 1423. Corpus delicti: While the facts 
 forming the corpus delicti must be clearly 
 and distinctly proved, it is not necessary that 
 the evidence should be direct and positive as 
 distinct from circumstantial or presumptive 
 evidence : State v. Keeler, 38-551. 
 
 1424. Failure to produce evidence: It is 
 not incumbent upon the prosecution to pro- 
 duce all the witnesses present at the com- 
 mission of the act charged as a crime against 
 defendant, but simply that proof of the 
 whole transaction shall be produced before 
 defendant can be put upon his defense : /Stafe 
 V. Middleham, 63-150. 
 
 1425. A suspicious circumstance, unex- 
 plained, whether defendant, in case he is inno- 
 cent, can or cannot explain it, is only pre- 
 sumptive evidence tending to establish guilt. 
 If the circumstance is one which defendant 
 could explain if innocent, it would be simply 
 stronger evidence against defendant than if 
 it was one which he could not explain, though 
 innocent ; but the jury must in every case be 
 the sole judge of its weight. Such presump- 
 tion should not be deemed sufficient in law 
 to overcome the presumption of innocence: 
 State V. Banks, 48-595. 
 
CRIMINAL LAW, III, 13, a. 
 
 499 
 
 Evidence ; identity of defendant. 
 
 1426. While it is true that the suppression 
 or destruction of evidence is a question to be 
 considered against the party charged with 
 the crime, and the non-production of explan- 
 atory evidence clearly in defendant's power 
 must weigh against him, yet this rule has no 
 application where the evidence is equally 
 within the reach of both parties, and is as 
 important for the prosecution as for the de- 
 fendant: State V. Rosier, 55-517. 
 
 14:2 7. The doctrine, that the failure of the 
 accused to introduce evidence explanatory of 
 inculpating circumstances may be regarded 
 as a circumstance against him, is to be cau- 
 tiously applied and only in cases where it is 
 manifest that proofs are in possession of 
 the accused not accessible to the prosecution. 
 Therefore, held, that it was error to instruct 
 the jury that the fact that defendant did not 
 call as a witness a person claimed to have 
 been an accomplice, when he might have 
 done so, might be considered a circumstance 
 against him, the testimony of the accomplice 
 being equally accessible to the prosecution : 
 State V. Cousins, 58-350. 
 
 1428. An instruction presenting the fa- 
 miliar rule that, if defendant fails to intro- 
 duce proof which he ought to introduce ex- 
 plaining facts or circumstances established 
 by the evidence which operate against him, 
 it is a circumstance to be considered in reach- 
 ing a conclusion as to his guilt, and that if 
 evidence within the power of defendant and 
 not accessible to the state, is withheld by the 
 defendant, the jury are authorized to infer 
 that if produced it would be against defend- 
 ant, is not objectionable as misleading the 
 jury with reference to the effect of a failure 
 of defendant to testify in his own behalf: 
 State V. Rodman, 62-456. 
 
 1429. Failure to call witnesses by defend- 
 ant to prove his general good character 
 raises no presumption against it: State v. 
 Doekstader, 42-436. 
 
 Failure to introduce evidence in civil cases, 
 see Evidence, g§ 199, 200. 
 
 1430. Identity of defendant: Evidence 
 of non-identity of defendant with the person 
 committing the crime should be weighed 
 like any other evidence offered by defend- 
 ant for the purpose of showing that he did 
 not oommit the crime. It is merely evidence 
 in rebuttal of that of the prosecution, and if 
 
 it i-aises a reasonable doubt of guilt defend- 
 ant should be acquitted although it does not 
 preponderate over that offered by the state : 
 State V. MeCracken, 66-569. 
 
 1431. Where the identity of. defendant 
 was in question in a prosecution for burglary. 
 held, that evidence as to declarations made 
 by the person committing the burglary, at 
 the time of its commission, indicating that he 
 was the defendant, was admissible as part of 
 the res gestce, and might be considered by the 
 jury in connection with other circumstances 
 bearing on the question of identity : State v. 
 Kepper, 65-745. 
 
 1432. Where the fact is proven that the 
 particular crime charged in the indictment 
 was committed by some person, evidence 
 which tends to identify the accused as the 
 person who committed it is relevant to the 
 issue, and is admissible even though it tends 
 also to prove the commission of a, distinct 
 crime from that charged in the indictment or 
 a different motive from that alleged. There- 
 fore, in a prosecution for burglary, where it 
 was evident that larceny or burglary was the 
 object in view, held, that the fact that de- 
 fendant was aware that the occupant of the 
 house had in liis possession a large sum of 
 money was admissible as tending to identify 
 defendant as the person who committed the 
 burglary: Ibid. 
 
 1433. The identity of accused with the 
 person named in the record of a marriage 
 may be established by admissions and iden- 
 tity of names, in the absence of evidence that 
 other persons of the same name performed 
 the marriage ceremony recited in the record : 
 State V. Schaunhurst, 34-547. 
 
 1434. On a trial for murder, where there 
 is evidence that would justify the jury in be- 
 lieving that the crime has been committed by 
 some one, and there are circumstances which 
 point to defendant as the guilty person, evi- 
 dence of conduct explaining the bad state of 
 feeling on the part of defendant toward the 
 deceased is admissible : State v. Cole, 63-695. 
 
 1435. Evidence of a witness as to facts 
 wjiich led him to believe that the prisoner 
 was the person whom he saw present at the 
 commission of a crime, held suiHcient to sup- 
 port a verdict of guilty : State v. Lucas, 57- 
 501. 
 
 1436. Certain evidence considered, and 
 
500 
 
 CBIMINAL LAW, III, 13, b. 
 
 Alibi. — Defendant as a witness. 
 
 Tield relevant and material as tending to im- 
 plicate defendant in the crime : State v. Hud- 
 son, 50-157. 
 
 1437. Alibi: It is error to instruct the 
 jury that an unsuccessful attempt to estab- 
 lish an alibi is of great weight against de- 
 fendant, and implies an admission of the 
 truth and relevancy of the facts alleged 
 against him. It is only a fabricated or 
 trumped-up defense of alibi, interposed with 
 a knowledge of its falsity, that will constitute 
 even a circumstance against defendant, and 
 even that is not conclusive of his guilt : State 
 V. Collins, 20-85. 
 
 1438. It is not erroneous to instruct the 
 ]ury that the defense of alibi is one easily 
 manufactured, and that juries are generally 
 and properly advised by the courts to scan 
 the proofs of an alibi with care and caution : 
 State V. Blunt, 59-468. 
 
 1439. The defense of alibi does not confess 
 the act charged, and seek to excuse it, as in 
 the defense of insanity; and, therefore, the 
 absence of instructions in reference to evi- 
 dence of an alibi is no prejudice to the de- 
 fendant, and, under the general instructions 
 as to reasonable doubt on the facts in the 
 case, the defendant would have the advantage 
 of all the presumption which could arise in 
 his favor by reason of such evidence : State v. 
 Sutton, 70 ■. 
 
 1440. Instructions as to alibi in a particu- 
 lar case, held not erroneous : State v. Butler, 
 67-643. 
 
 As to burden of proof of alibi, see infra, 
 §§ 1595-1599. 
 
 b. Defendant as a witness. 
 
 1441. Cross-examination: The rules gov- 
 erning the cross-examination of defendant 
 when testifying in his own behalf are the 
 same as those applicable to the cross-exami- 
 nation of other witnesses, and questions may 
 be asked for the purpose of laying a founda- 
 tion for impeaching his evidence by contra- 
 dicting statements made in answer to such 
 questions : State v. Red, 53-69. 
 
 1442. Imppachineiit: When defendant in 
 a criminal case offers himself as a witness, 
 he may be impeached or contradicted in the 
 same manner as other witnesses are. His 
 testimony is to be tested by the rules which 
 are applicable to witnesses generally, and 
 
 any fact or circumstance which might law- 
 fully be shown for the purpose of affecting 
 the credibility of other witnesses may be 
 shown for the same purpose as to his testi- 
 mony. Witnesses may therefore be intro- 
 duced to-testify that his reputation for tnith 
 and veracity is bad, and it is not necessary 
 that the names of such witnesses shall have 
 been indorsed on the indictment and minutes 
 of then- evidence returned by the grand jury, 
 or notice given of the intention to introduce 
 such witnesses : State v. Teeter, 69-717. 
 
 1443. Competency: The rules relating to 
 the pertinency of testimony given by other 
 witnesses are applicable when the prisoner 
 testifies in his own behalf ; and the fact tnat 
 the evidence against him is strong and his 
 story improbable cannot have any bearing 
 upon the admissibility of the proposed testi- 
 mony : State v. Kelly, 57-644. 
 
 1444. May testify as to knowledge: 
 Therefore, where defendant's guUt depends 
 upon his knowledge of a fact, he should be 
 permitted to testify upon his knowledge of 
 the subject : Ibid. 
 
 1445. Credibility: It is not error to in- 
 struct the jury that they may consider de- 
 fendant's interest in the result of the action 
 as afi^ecting his credibility when he makes 
 himself a witness: State v. Moelchen, 53- 
 310. 
 
 1446. Statutory rule: Before the enact- 
 ment of the amendment to Code, § 3686, de- 
 fendant in a criminal prosecution was not a 
 competent witness in his own behalf : State 
 V. Laffer, 88-422; State v. Bixby, 39-465: 
 State V. Gigher, 23-318. 
 
 1447. Instructions: The fact that the judge 
 gives no instruction to the jury in regard to 
 the failure of the defendant to testify will 
 not constitute error where he has not been 
 requested to so charge, and the matter has 
 not been alluded to in any way during the 
 course of the trial : State v. Stevens, 67-557. 
 
 1448. Commenting upon defendant's not 
 being a witness : Notwithstanding the stat- 
 utory direction that the district attorney 
 shall not refer in his argument to the fact 
 that defendant does not become a witness in 
 his own behalf, his failure to testify as to a 
 part of his defense when he makes himself 
 a witness as to another part may properly 
 be made a subject of comment. The exemp- 
 
CRIMINAL LAW, III, 13, c. 
 
 501 
 
 Testimony of co-defendant ; of accomplice. 
 
 tion from unfavorable comment extends only 
 to such defendants as choose to avail them- 
 selves of the privilege of not testifying in 
 their own behalf: State v. Tatman, 59-471. 
 
 1 449. There is nothing which the prose- 
 outing attorney can say about the fact that 
 defendant has not testified in his own behalf 
 that would justify a reference to it, and 
 courts should hold district attorneys to a 
 strict observance of their duties in this re- 
 spect : State v. Graham, 63-108. 
 
 1450. It is clearly implied in the statutory 
 provision as to defendant being a witness, 
 that the attention of either court or jury 
 shall not be called to the fact that the de- 
 fendant has failed to testify in his own be- 
 half, and where in arguing to the court, in 
 the presence of the jury, a question as to 
 an objection to evidence, that fact was re- 
 ferred to, held, that there was ground for a 
 new trial: State v. My an, 70 . 
 
 And further as to misconduct of district/ 
 attorney in this respect as ground for new 
 trial, see supra, gS 1286-1291. 
 
 c. Testimony of parties indicted 
 jointly; accomplices ; husband or 
 wife. 
 
 1451. Co-defendants: Where two or more 
 defendants are indicted jointly but put upon 
 trial separately, either one is a competent 
 witness for the other: State v. Nash, 10-81. 
 
 1452. Where defendants are jointly in- 
 dicted and jointly put on trial, one isNstill a 
 competent witness for the other: State v. 
 Gigher, 23-318. 
 
 1453. In such case the jury should be 
 properly cautioned not to consider such evi- 
 dence in behalf of the party testifying : State 
 V. Stewart, 51-312. 
 
 . 1454. Where several co-defendants were 
 on trial for the crime of unlawful assembly, 
 held, that it was error to exclude the testi- 
 mony of one, offered in behalf of another 
 and not in behalf of himself, as to what was 
 said and done by the witness' co-defendants : 
 Ibid. 
 
 1455. If one of two defendants jointly 
 indicted is called as a witness for the other, 
 and the jury find that the one called as a 
 
 witness was not an accomplice, his testinaony 
 should be regarded as that of other witnesses : 
 State i: Schlagel, 19-169. 
 
 1456. Impeachmeut: Where one of two 
 co-defendants on trial jointly is introduced 
 by his co-defendant as a witness, evidence of 
 his bad moral character may be introduced 
 to impeach his credibility in the same manner 
 as in the case of any other witness : State v. 
 Hardin. 46-623. 
 
 1457. Testimony of accomplice: An ac- 
 complice is a competent witness for the 
 prosecution: State v. Hudson, 50-157. 
 
 1458. It is not a ground for rejecting the 
 testimony of an accomplice that it has not 
 been shown that he is less guilty than- the 
 defendant, or that no order of the court has 
 been made that he should be received as a 
 witness. (Overruling Ray v. State, 1 G. Gr., 
 316): Ibid. 
 
 1459. The order of the introduction of tes- 
 timony being in the discretion of the prose- 
 cution under the approval of the court, it is 
 not necessary that evidence connecting de- 
 fendant with the crime shall be introduced 
 before the testimony of the accomplice is re- 
 ceived: Ibid. 
 
 1460. Who deemed accompliee: A detec- 
 tive who enters into an arrangement for the 
 commission of a crime with the intention, 
 from the beginning, of acting as a detective 
 to ferret out and expose it, and who acts 
 throughout with that motive, is not an ac- 
 complice : State v. McKean, 36-343. 
 
 1461. One who receives stolen goods is not 
 an accomplice in the crime of burglary com- 
 mitted at the time the goods are stolen : State 
 V. Hay den, 45-11. 
 
 1462. Where it appeared that a person 
 who was guilty of breaking into and setting 
 fire to a jail had notified another to be pres- 
 ent, and such other person was near b}' and 
 saw defendant enter the jail, but gave no as- 
 sistance or advice, and did not know that the 
 jail had been set on fire when he left, held, 
 that he was not sufiiciently an accomplice to 
 render it necessary that his evidence be cor- 
 roborated to warrant a conviction : State v. 
 Reader, 60-537. 
 
 1463. Corroboration of evidence of ac- 
 complice:! In case of a prosecution for con- 
 
 ' Code, § 4659. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated 
 by such other evidence as shall tend to connect the defendant with the commission of the offense; and the 
 corroboration is not sufHcient if it merely show the commission of the offense or the circnmstajices thereof. 
 
502 
 
 CRIMINAL LAW, III, 13, c. 
 
 Testimony of accomplice ; acts of co-conspirator. 
 
 coaling stolen property, the corroboration 
 rsquired of the evidence of an accomplice 
 must go not merely to the fact of conceal- 
 ment but also to the fact that the property 
 was stolen : Upton v. State, 5-465. 
 
 1464. The corroborating evidence must 
 tend to connect defendant with the commis- 
 sion of the crime : Upton v. State, 5-465 ; 
 State V. Tulley, 18-88; State v. Clemens, 38- 
 357. 
 
 1465. Corroborating evidence is not suf- 
 ficient which merely shows the commission 
 of the offense and the circumstances thereof 
 without connecting defendant therewith. 
 Therefore, held, that the mere proof that de- 
 fendant was seen drunk in company with a 
 burglar, at or near the time and place when 
 and where the burglary was committed, was 
 not sufficient corroborating evidence to war- 
 rant his conviction : State v. Willis, 9-582. 
 
 1466. The corroboration need not be by 
 the testimony of one credible witness ; it may 
 be circumstantial : State v. Stanley, 48-221. 
 
 146". The corroboration need not be 
 founded upon facts directly connecting de- 
 fendant with the offense. It may be founded 
 upon circumstantial evidence : State v. Miller, 
 65-60. 
 
 1468. Where the testimony of an accom- 
 plice is corroborated by other witnesses in 
 any material point, it is sufficient to convict : 
 State V. Schlagel, 19-169, 
 
 1469. It is not necessary that the accom- 
 plice be corroborated in every material fact. 
 If the jury are satisfied that he spealts the 
 truth in some material part of his testimony, 
 in which he is confirmed by unimpeachable 
 evidence, this may be ground f Or them to be- 
 lieve that he also speaks the truth in other 
 parts as to which there may be no corrobora- 
 tion: State V. Allen, 57-431; State v. Hen- 
 nessy, 55-299. 
 
 1470. It is not necessary that the accom- 
 plice be corroborated as to the commission of 
 the crime if he is corroborated in the material 
 facts as to the preparation for its commission, 
 etc. : State v. Hennessy, 55-299. 
 
 1471. Whether in a particular case there 
 is any corroborating evidence is a question 
 for the court to determine, but it is for the 
 jury to weigh such evidence and its suffi- 
 ciency: State V. Miller, Q5-Q0; State v. Deitz, 
 67-330. 
 
 1472. It is the province of the juiy to de- 
 termine whether the corroboration is suffi- 
 cient: State v. Allen, 57-431. 
 
 1473. In a prosecution for having counter- 
 feit coin in possession with intent to pass, 
 licld, that the testimony of an accomplice as 
 to such possession and intent was not suffi- 
 ciently corroborated by evidence as to former 
 acts of passing counterfeit money : State v. 
 Pepper, 11-347. 
 
 1474. The fact that witnesses who might 
 have been called to conti-adict the accom- 
 plice, if his testimony were false, were not 
 called, should not be considered as corrobo- 
 rating such testimony: State v. Hull, 26- 
 292. 
 
 1475. Apparently without reference to any 
 statutory provision, held, that the testimony 
 of one accomplice would not constitute a 
 sufficient corroboration of that of another, 
 to warrant conviction without other evi- 
 dence: Johnson v. State, 4 G. Gr., 65. 
 
 1476. The fact that the defendant and a 
 person who has been convicted of crime 
 were seen conversing together four or five 
 hours before the commission of the crime, 
 held not sufficient corroboration of the testi- 
 mony of such accomplice to warrant the 
 defendant's conviction: State v. Mikesell, 
 70 . 
 
 1477. In particular cases, held, that the 
 testimony of an accomplice was not suffi- 
 ciently corroborated to warrant conviction 
 thereon: State v. Graff, 47-384; State v. 
 Moran, 34-453. 
 
 1478. The evidence in particular cases held 
 sufficiently corroborative of the testimony of 
 an accomplice to sustain a conviction : State 
 V. Thornton, 36-79; State v. Wart, 51-587; 
 State V. Deitz, 67-220. 
 
 1479. Acts ami declarations of co-con- 
 spirators or accomplices: The acts and dec- 
 larations of one of two or more persons 
 charged with a conspiracy in the commission 
 of a ci-ime are not admissible as against the 
 others, unless a foundation is first laid sufH- 
 cient, in the opinion of the court, to estab- 
 lish prima facie the fact of conspiracy, or 
 proper to be laid before the jury to establish 
 such fact : State v. Nash, 7-347, 384. 
 
 1480. Acts and declarations of an accom- 
 plice while engaged with defendant in fur- 
 thering, aiding and abetting a common 
 
CRIMINAL LAW, III, 13, c, d. 
 
 503 
 
 Testimony of husband or wife. — Confessions or admiesions. 
 
 design ai-e receivable in evidence against 
 liiui : State v. Hudson, 50-157. 
 
 1481. Where two defendants were jointly 
 indicted for horse-stealing, held, that upon 
 the trial of one, the state could prove that 
 the other person conducted a witness to the 
 horses, for the purpose of showing when and 
 how the horses were found, without first 
 showing the existence of a joint purpose or 
 consphacy : State v. Bowers, 17-46. 
 
 1482. Admissions of a co-conspirator made 
 after the common enterprise is at an end are 
 not admissible : State v. Arnold. 48-566. 
 
 1483. Where several defendants were 
 jointly indicted for murder, held, that it was 
 error to admit, against one of them, declara- 
 tions of co-defendants made after the commis- 
 sion of the crime: State v. Wesf/aZZ, 49-328 ; 
 State V. Smith, 54-656. 
 
 1484. Upon the trial of one of several co- 
 defendants jointly indicted for burglarj-, 
 held, that acts and conversations of the other 
 defendants tending to establish familiar re- 
 lations and association of all the parties, and 
 that they were in company at about the time 
 of the commission of the crime, were admis- 
 sible for the purpose of connecting defendant 
 with the commission of the crime : State v. 
 Stevens, 67-557. 
 
 1485. Testimony of hnsbaiul or wife of 
 defendant : Tv here a husband and wife are co- 
 defendants, the wife may properly be called 
 as a witness by her husband , and her evi- 
 dence should be admitted under instructions 
 restricting it in its application, so that it shall 
 not be considered in her own behalf: State v. 
 Donovan, 41-587. 
 
 1486. While the credibility of a wife tes- 
 tifying in behalf of her husband in a crimi- 
 nal prosecution is to be considered and 
 weighed in view of her peculiar relation to 
 defendant, it is error to chai-ge the jury to 
 examine her testimony with peculiar care. 
 The same degree of care which the law re- 
 quires to be given to the testimony of all wit- 
 nesses should be applied to hers, and no other 
 or different degree: State v. Guyer, 6-263; 
 State V. Rankin, 8-355 ; State v. Collins, 20- 
 85 ; State v. Bernard, 45-334. 
 
 148 7. It is not error to charge the jury that, 
 while the wife is a competent witness for 
 her husband, they should examine and con- 
 sider her testimony with care and caution, 
 
 and give it such credit as under the circum- 
 stances they think it entitled to: State v. 
 Nash, 10-81. 
 
 The husband or wife cannot be a witness 
 against the other except in a criminal prose- 
 cution for a crime committed, one against the 
 other : See Evidence, III, 7, c. 
 
 d. Confessions or admissions of de- 
 fendant. 
 
 1488. When recelTable: Evidence of a 
 confession should be examined with care, but 
 when it is clearly established, whether made 
 in the presence of the prosecutor or his 
 friends, or to one person alone, if made vol- 
 untarily, it is entitled to the highest credit 
 and greatest weight as evidence: State v. 
 Brown, 48-882. 
 
 1489. What constitutes: The term ''con- 
 fessions " does not include admissions or dec- 
 larations by the defendant : State v. Sohaun- 
 hurst, 34-547. 
 
 1490. The mere statement of a defendant 
 accused of forgery that he wrote the name 
 alleged to be forged is not sufiicient to consti- 
 tute a confession. To have such effect, the 
 admission must be that the writing was with 
 fraudulent intent: State v. Knowles, 48-598. 
 
 1491. In a prosecution for murder, held, 
 that certain admissions of defendant that he 
 was with deceased at or near the time and 
 place of the commission of the crime were 
 receivable in evidence, but that it was erro- 
 neous to consider them as confessions of guilt, 
 and to instruct the jury on that basis : State 
 V. Glynden, 51-463. 
 
 1492. A confession of guilt is an admis- 
 sion of the criminal act itself, not an ad- 
 mission of the facts or circumstances from 
 which guilt may be inferred. Statements of 
 facts tending to show defendant's guilt are 
 not to be treated as confessions: State v. 
 Med, 53-69. 
 
 1493. The admission of a person suspected 
 of a crime that he has lied in relation to the 
 matter is not a confession of guUt, but a 
 circumstance against him, which may be 
 shown in evidence: State v. Feltes, 51-495, 
 
 1494. It is error to instruct the jury with 
 reference to statements of defendant on the 
 theory that they constitute confessions, when 
 they are not admissions or acknowledg- 
 
504 
 
 CRIMINAL LAW, III, 13, d, e. 
 
 Confessions or admissions of defendant. — Acts, etc. 
 
 ments of agency or participation in the com- 
 mission of the crime, although they are such 
 as, in connection with other facts and cir- 
 cumstances, warrant a conviction of guilt : 
 State V. Jones, 33-9. 
 
 As to the effect of admissions and declara- 
 tions not constituting confessions, see infra, 
 III, 13, e. 
 
 1495. Mental condition at time of mak- 
 ing confessions: Where defendant had intro- 
 duced evidence as to his condition at the 
 time of making certain confessions with 
 reference to being intoxicated at that time, 
 which evidence it was claimed indicated 
 delirium tremens, held, that it was error to 
 exclude the opinion of an expert as to the 
 mental condition indicated by the proven 
 lacts: State V. Feltes, 51-495. 
 
 1496. While it is proper that evidence as 
 to the condition of defendant at the time of 
 making a confession should go to the jury, he 
 cannot insist upon being allowed to intro- 
 duce such evidence before the confession it- 
 self is testified to. The time when the jury 
 ai-e made acquainted with his condition is 
 immaterial : Ibid. 
 
 1497. Involuntary confessions: Confes- 
 sions drawn from a person by hope or fear 
 are inadmissible as evidence against him, 
 and the jury should be directed without quali- 
 fication to disregard them. The question 
 whether confessions were voluntarily made 
 is to be determined by the court upon pre- 
 liminary evidence: State v. Fidment, 35-541. 
 
 1498. Admissions voluntarily and freely 
 made by a prisoner to the oiScer having him 
 in custody, uninfluenced by hope or fear, may 
 be shown : State v. Soper, 70 . 
 
 1499. A confession in order to be admissi- 
 ble must be free and voluntary ; not extracted 
 by any sort of threats, nor obtained by prom- 
 ises, however slight : nor by the exertion of 
 any improper influence. If a confession has 
 been obtained by undue influence, any state- 
 ment afterwards made under the influence 
 of that confession cannot be admitted : State 
 V. Chambers, 39-179. 
 
 1500. In order to exclude a confession as 
 involuntary, there must be some promise 
 made or inducement held out, or injury 
 threatened : State v. Foftner, 43-494. 
 
 1501. Facts considered and held not to 
 show that the confession in question was 
 
 made under such threats as to invalidate it : 
 State V. Osirander, 18-435. 
 
 ISOti. Where an oflicer testified to con- 
 versations of defendant while in his custody, 
 held, that it was not error to refuse evidence 
 to the effect that defendant was ironed and 
 harshly treated, it not being claimed that the 
 treatment influenced the conversation : State 
 V. Sullivan, 51-142. 
 
 150.3. Corroboration necessary: Under 
 statutory provisions a confession not made in 
 open court will not warrant a conviction un- 
 less there is other proof that the offense 
 charged has in fact been committed : State v. 
 Turner, 19-144. 
 
 1504. Where every other ingredient of a 
 crime was established by other evidence, ex- 
 cept the falsity of certain representations 
 which were shown to have been made, and 
 it appeared that defendant did not act in ac- 
 cordance with such representations, lieli, 
 that voluntary confessions out of court of 
 such falsity were sufficient, without other 
 evidence thereof, to warrant conviction: 
 State V. Lews, 45-20. 
 
 1505. Under the facts of a particular case, 
 held, that the corpus delicti was not proven 
 aside from defendant's confessions out of 
 court, and the conviction was therefore re- 
 versed : State v. Dubois, 54-363. 
 
 1506. The evidence in a particular case 
 held to be sufficiently corroborative of the 
 confession of defendant to warrant a convic- 
 tion : State v. Feltes, 51-495. 
 
 1507. In a civil action, a confession alone 
 will not be sufficient proof of the commission 
 of a crime : Georgia v. Kepford, 45-48, 52. 
 
 e. Acts, declarations and conduct of 
 defendant; state of feeling; otlier 
 criminal acts. 
 
 Kes gestae: As to acts, declarations, etc., 
 forming part of the res gestae, see Evidence, 
 I, 3, b. 
 
 1508. Declarations or admissions of de- 
 fendant: Declarations of the prisoner made 
 in the very act of the crime are not admissi- 
 ble in his behalf unless they are part of the 
 res gestae. So held in a prosecution for ille- 
 gal sale of intoxicating liquor, with reference 
 to the character of the liquor sold by defend- 
 ant : State v. Miller, 53-84. 
 
CRIMINAL LAW, III, 13, e. 
 
 505 
 
 Acts, declarations and conduct of defendant. 
 
 1509. Admissions made in ordinary or 
 random conversations are not generally con- 
 sidered in law as satisfactory proof: State v. 
 Donovan, 61-278. 
 
 15 10. Where the significance and value of 
 certain circumstantial evidence introduced 
 by the prosecution depended e^itirely upon 
 the fact that collateral facts appearing in 
 evidence vrere contemporaneous and subse- 
 quent to the crime, held, that declarations of 
 the accused with reference to one of the 
 facts, made prior to the crime, were ad- 
 missible in evidence as overthrowing the cir- 
 cumstantial evidence: State v. Cruise, 19- 
 313. 
 
 1511. An instruction to the jury that a 
 certain conversation in evidence had with a 
 prisoner upon the subject of the crime with 
 which he was ohai-ged occurred as stated, and 
 the statements of accused could not be recon- 
 ciled upon any other reasonable hypothesis 
 than that of his guilt, then upon such evi- 
 dence they might convict, held, not erroneous 
 where there was abundant and incontrovert- 
 ible proof that the offense was committed : 
 State V. Borabacher, 19-154. 
 
 1512. In a prosecution for murder, evi- 
 dence of theories propounded at one time by 
 defendant as to how deceased may have met 
 his death, and which were inconsistent with 
 his explanation of the same thing, were held 
 admissible, subject to any explanation as to 
 the discrepancy, and subject also to the cau- 
 tion that too much importance should not be 
 attached to the circumstance, as an innocent 
 man finding himself suspected might make 
 false representations to allay suspicion : State 
 V. Feltes, 51-495. 
 
 1513. In a prosecution for incest', admis- 
 sions and declarations of the parties as to the 
 fact of the marriage claimed to be incestuous 
 are admissible to prove it : State v. Schaiin- 
 hurst, 34^547. 
 
 1514. Evidence as to statements made by 
 defendant as to his previous occupation, held 
 not improperly admitted in a trial for mur- 
 der : State v. Moelchen, 53-310. 
 
 1515. While a prisoner arrested on pre- 
 liminary information is not required to plead 
 upon the preliminary examination, yet if he 
 does so plead, even before the magistrate has 
 advised him of his right to coun.sel, such 
 pleading may be shown in evidence against 
 
 him as an admission of his guilt : State v. 
 Briggs, 68-416. 
 
 151C. The statement by defendant on ar- 
 raignment that he has no means to employ 
 counsel is a solemn admission which maj' be 
 used against him if that fact becomes ma- 
 terial to any issue in the case : State v. FooJcs, 
 65-196. 
 
 1517. Where admissions of defendant are 
 relied upon, it is not required that the jury 
 accept them as a whole for the truth. The)' 
 may accept those portions which are reason- 
 able and which agree with other evidence, 
 and reject other portions that are unreason- 
 able and contradict other testimony : State v. 
 Mclntire, 66-339. 
 
 15 IS. Testimony as to statements made by 
 defendant with reference to injuries received 
 by him, couched in profane language, held 
 not admissible as against him, and that if 
 the fact that he refuses assistance in dress- 
 ing his wound was material, it should have 
 been testified to directly without giving the 
 language used: State v. Cross, 68-180. 
 
 1519. Conclusive presumptions and es- 
 toppels have no place in the criminal la\v, in 
 establishing the body of the crime charged. 
 Therefore, held, that while statements made 
 by a defaulting officer at the time of a settle- 
 ment with him might estop himi in a civil 
 suit from claiming therein that the defalca- 
 tion existed prior to such settlement, the es- 
 toppel would not apply in a criminal prosecu- 
 tion as showing that the offense was bai-red : 
 State V. Hutchison, 60-478. 
 
 As to the distinction between admissions 
 and confessions and the rules of evidence 
 with reference to the latter, see supra. III, 
 13, d. 
 
 In general as to admissions, see Evidence, 
 1,3. 
 
 1520. Conduct of prisoner when charged 
 with crime: The bodily or mental feelings 
 of the prisoner when material to be proved 
 may be shown by the usual expression of 
 such feelings made at the time in question. 
 The conduct and language of the prisoner 
 when informed of the charges against him 
 may therefore be shown: State v. Nash, 7- 
 347, 883. 
 
 1521. Declarations of deceased made in 
 the presence of defendant are admissible for 
 the purpose of showing defendant's conduct 
 
506 
 
 CRIMINAL LAW, III, 13, e. 
 
 Declarations of defendant ; state of feeling. 
 
 and behavior, when charged with causing 
 the injuries done to the deceased, whether 
 admissible as dying declarations or not: 
 State V. Gilliak, 7-287, 309; State v. Nash, 
 7-347, 376; State v. Nash, 10-81. 
 
 1522. Declarations of the injured person, 
 not competent as dying declarations, are not 
 receivable where they are made in the pres- 
 ence of the officer having defendant under 
 arrest, but not in the presence of defendant : 
 State V. Nash, 10-81. 
 
 1523. Testimony tending to show that the 
 prisoner, when arrested, was charged with 
 tlie crime and made no answer, is admissible, 
 but its value is to be determined by all the 
 circumstances, of which the jury are to be 
 the judges : State v. Pratt, 20-267. 
 
 1524. Statements in the hearing of de- 
 fendant: Where two defendants were jointly 
 indicted for horse-stealing, held, that upon 
 the trial of one it was competent to prove 
 what was said by his accomplice in his hear- 
 ing and presence with regard to taking the 
 horses, coupled with evidence that defendant 
 remained silent and did not object or assent 
 to its correctness. The weight of such evi- 
 dence or the presumption arising therefrom 
 must depend on the circumstances and must 
 be determined by the jury : State v. Bowers, 
 17-46. 
 
 1525. Statements in regard to the crime, 
 made in the presence of the defendant, may 
 be introduced in evidence without establish- 
 ing that such statements were understood by 
 liim. It is for the jury to determine from 
 all the circumstances whether he under- 
 stood what was said: State v. Middleham, 
 63-150. 
 
 1526. Hostile feelings: Letters merely 
 showing a state of hostUe feelings between 
 defendant and the iperson injured and his 
 famUy connections are not admissible in evi- 
 dence unless merely for the purpose of show- 
 ing the existence of such feelings, and if ad- 
 mitted for that purpose the jury should be 
 limited in their consideration of them to the 
 single purpose of ascertaining the feeling of 
 defendant toward the injured party : State v. 
 Moffitt, 31-316. 
 
 1527. Where malicious intent is necessary 
 to be shown it is not competent to prove the 
 relations existing between the family in 
 which defendant lived and the person against 
 
 whom malice is claimed to have existed: 
 State V. McDermott, 36-107. 
 
 1528. Evidence that defendant charged 
 with the crime and the person murdered had 
 had an altercation, held competent, as tend- 
 ing to show that the parties had not lived to- 
 gether agraeably : State v. Moelehen, 53-310. 
 
 1529. In the prosecution of a crime con- 
 sisting of violence to an individual, it is al- 
 ways competent to show previous ill-feeling, 
 bad blood or threats as tending to show a 
 probable motive for the commission of the 
 crime ; and threats or iU-f eeling by defendant 
 toward the father of the person injured is 
 competent evidence on a criminal charge for 
 injury to the child of such father : State v. 
 Fry, 67-475. And see State v. Perigo, 70 . 
 
 Evidence of hostile feelings is admissible 
 to implicate defendant as the person who 
 comnaitted the crime : See supra, % 1484. 
 
 1530. Threats made by defendant, after the 
 commencement of the prosecution, against 
 the parties engaged therein are admissible in 
 evidence as showing the njind, spirit and 
 purpose of defendant in his defense and in 
 relation to the crime charged : State v. Eora- 
 bacher, 19-154. 
 
 1531. Conduct of defendnnt in averting 
 suspicion by endeavoring to cast it upon an- 
 other does not raise a strong presumption of 
 guilt where defendant has not stated un- 
 truths respecting such third person or directly 
 charged him with the crime: State v. Col- 
 lins, 20-85. 
 
 1532. Compromise of civil suit is not 
 competent evidence in a criminal prosecution 
 for stealing property for the value of which 
 defendant was sued in such civil action : State 
 V. Emerson, 48-172. 
 
 1533. Attempts to escape : Where there is 
 some evidence tending to show that defend- 
 ant, after the commission of an offense, at- 
 tempted to escape, the jury may be instructed 
 that such attempt, if made, is a circumstance 
 prima facie indicative of guilt: State v. 
 James, 45-413. And see State v. Schaffer, 
 m . 
 
 1534. An instruction that " if it be found 
 that the defendant, after he was arrested, es- 
 caped from custody and secreted himself 
 from lawful pursuit, or that defendant at- 
 tempted to escape, this raises a strong pre- 
 sumption of his guUt," 7ieW erroneous as stat- 
 
CRIMINAL LAW, III, 13, e. 
 
 50 r 
 
 other criminal acts of defendant. 
 
 ing the rule too strongly against defendant. 
 An attempt to escape does not raise a strong 
 presumption of guilt, but is a prima /acie in- 
 dication of guilt : State v. Arthur, 23-430. 
 
 1535. While an attempt of defendant to 
 escape from jail while awaiting trial is ad- 
 missible against him, it is improper to admit 
 evidence of an effort on the part of the per- 
 sons in such jail to escape, unless it is shown 
 that defendant participated therein : State v. 
 Ruby, 61-86. 
 
 153G. The fact that a pei-son leaves a jail 
 through a hole made therein by some one is 
 sufficient evidence of escape, and may be 
 shown, as a circunastance indicating guilt, in 
 the prosecution of the crime for which de- 
 fendant was under arrest: State w. Fitz- 
 gerald, 63-268. 
 
 1537. There is no distinction between an 
 actual escape and an attempt to escape, as 
 tending to show consciousness of gTiilt. The 
 latter is equally admissible with the former 
 as against the accused : State v. Stevens, 67- 
 557. 
 
 1538. Where evidence was introduced of 
 flight by defendant after his an-est and the 
 forfeiture of his bail, held, that it was not 
 proper in rebuttal to show that threats were 
 made of lynching him and that the fact 
 of such threats was communicated to him, 
 where it did not appear that the flight was 
 soon enough after the threats and communi- 
 cation to afford any indication that he was 
 scared by the threats into flight: State v. 
 McDevitt, 69-549. 
 
 1539. Evidence of the good conduct of one 
 under confinement for an offense, as tending 
 to show him an honest man, is not admissible 
 either to prove his good character or his in- 
 nocence : State V. Hart, 29-368. 
 
 1540. It seems that the fact of defendant's 
 flight, after it becomes known to him that a 
 crime has been committed, is admissible in 
 evidence of the commission of the act by him 
 only in criminal cases and not in civil ac- 
 tions for damages : Hopkins v. Mathias, 66- 
 333. 
 
 1541. Subsequent acts or declarations : 
 The guilty intent of a party may be shown 
 by his acts, conduct and declarations, not 
 only before or at the time of but also after 
 the commission of the criminal act : State v, 
 Lewis, 45-20. 
 
 1542. Previous declaratioiis: Evidence of 
 statements made by defendant before the 
 commission of the alleged murderous assault 
 for which he was put on trial, as to his inten- 
 tion to go to the place where the assault was 
 afterwards committed and his object in going 
 there, held admissible: State v. DriscoU, 
 44-65. 
 
 1543. Other unlawful purpose: Evidence 
 tending to show that defendant went to the 
 place of the commission of the crime with an 
 unlawful purpose not connected with the 
 crime committed is not admissible : IMd. 
 
 1544. Intent inferred from acts: There 
 is no clearer rule of evidence than that mal- 
 ice may be inferred from the acts of a party : 
 State V. Linde, 54^139. 
 
 1545. The intent with which an actisdone 
 is seldom, if ever, capable of direct and posi- 
 tive proof, but is to be arrived at by such 
 just and reasonable deductions or inferences 
 from the acts and facts proved, as the guarded 
 judgment of a candid and cautious man 
 would ordinarily draw therefrom. The law 
 warrants the presumption or inference that 
 a person intends the results or consequences 
 which ordinarily follow from an act which 
 he intentionally commits: State v. Gillett, 
 56-459. 
 
 1546. Where the criminality of an act de- 
 pends upon the intent with which it was 
 committed, it is not necessary that the intent 
 be established by distinct and positive proof, 
 but it is sufficient if it can reasonably be in- 
 ferred from the facts ; and it is not necessary 
 that when such intent is sought to be estab- 
 lished by circumstantial evidence, the proof 
 be so far conclusive that it is inconsistent 
 with any other rational conclusion : State v. 
 Maxivell, 4^-208. 
 
 As to presumption of malice, see supra, 
 §§ 30-32, 133, 134. 
 
 1547. Evidence of distinct crime to sliow 
 intent: While it is genel-ally true that a per- 
 son cannot be convicted of a particular crime 
 with which he is charged by proof of 
 another crime, yet where proof of intent to 
 commit one crime is necessary as an element 
 of another crime, the commission of the first 
 may be shown to prove the intent : State v. 
 Golden, 49-48. 
 
 1548. Therefore, held, that in a prosecu- 
 tion for burglary proof of larceny committed 
 
508 
 
 CEIMINAL LAW, III, 13, e, f. 
 
 Other criminal acts of defendant. — Good character. 
 
 after the breaking and entering was admis- 
 sible to show the intent with which the 
 breaking and entering were done : Ibid. 
 
 1549. While the general rule is that evi- 
 dence of a distinct, substantive offense cannot 
 be admitted in proof of another offense, this 
 rule is subject to the exception that what- 
 ever serves to establish the scienter or quo 
 animo, or a motive for the commission of the 
 crime charged, may be shown: State v, Kline, 
 54-183. And see State v. Schaffer, 70 . 
 
 1550. Therefore, held, that it was proper, 
 on a trial for assault with intent to commit 
 murder by shooting, where the evidence 
 tending to connect defendant with the crime 
 was wholly circumstantial, to permit the 
 prosecutrix to testify that defendant had 
 seduced her and she was pregnant by him : 
 State V. Kline, 54-183. 
 
 1551. On. a trial of defendant for an as- 
 sault with intent to commit rape, evidence of 
 previous assaults of like character on prose- 
 cutrix is admissible to show the intent. But 
 evidence of like assaults on other persons 
 having no connection with the one charged, 
 and occurring long previous, are not admis- 
 sible : State v. Walters, 45-389. 
 
 1552. In a prosecution for adultery, other 
 acts of adultery between the same parties 
 prior to the statutory period of limitation or 
 outside of the jurisdiction of the court are 
 admissible in evidence as showing the dispo- 
 sition of the parties, and may be taken, in 
 connection with evidence of opportunity ex- 
 isting within the jurisdiction and within the 
 statutory period, as evidence of the commis- 
 sion of the crime : State v. Briggs, 68-416. 
 
 1553. In a prosecution for forgery or utter- 
 ing forged paper, other acts of the same 
 character may be shown to show guilty 
 knowledge; but it is doubtful whether the 
 other paper as to which evidence is intro- 
 duced must not be of the same character and 
 manufacture and precisely similar to that 
 forged or uttered upon which the charge is 
 based : State v. Saunders, 68-370. 
 
 1554. But in order that knowledge may be 
 inferred from other transactions, it must ap- 
 pear that in such other transaction a crime 
 was committed : Ibid. 
 
 1555. In such cases the other forged in- 
 strument, with reference to which testimony 
 is given, must be introduced in evidence or 
 
 its absence accounted for: Ibid.; State v. 
 Breckenridge, 67-204. 
 
 1556. Evidence of a distinct crime is ad- 
 missible where it tends to connect defendant 
 with the commission of the crime charged. 
 Therefore, in a prosecution for burglary in 
 breaking and entering a dwelling with 
 intent to commit assault and battery, held, 
 that evidence that defendant knew that the 
 occupant had a large sum of money was ad- 
 missible as tending to show that it was de- 
 fendant who broke and entered: State i\ 
 Kepper, 65-745. 
 
 1557. Where two or more acts are em- 
 bodied in the same transaction, each consti- 
 tuting an assault, and together constituting 
 but one assault, all may properly be shown 
 to establish the animus of defendant, although 
 one act alone would constitute the crime: 
 State V. Montgomery, 65-483. 
 
 1558. Where two persons were jointly in- 
 dicted for larceny, and there was evidence 
 that the one was keeper and the other an in- 
 mate of a house of ill-fame, held, that it was 
 improper to charge the jury that they might 
 consider the habits of the parties defendant 
 at the time, whether they were living to- 
 gether, acting together, or together were en- 
 gaged in a common purpose to commit the 
 crime, there being no evidence but their 
 mutual relationship to indicate concert of 
 action : State v. Graham, 63-108. 
 
 f . Defendant^ good character. 
 
 1559. For what purpose shown: General 
 good character of accused may be shown to 
 rebut the presumption of guilt arising from 
 circumstantial testimony, but it does not eon- 
 stitute a defense : State v. Turner, 19-144. 
 
 1560. Previous good character is, of itself, 
 no defense, but is a circumstance which 
 should be considered by the jury in connec- 
 tion with all the other evidence and which 
 may be sufficient to turn the scale in de- 
 fendant's favor, but its value as evidence in 
 any given case is to be determined by the 
 jury : State v. Donovan, 61-278. 
 
 1561. The jury maybe instructed that if 
 they find good character established by the 
 evidence, they should consider it and allow 
 it such weight as they believe it fairly en- 
 titled to, as tending to show that men of 
 
CRIMINAL LAW, III, 13, f. 
 
 509 
 
 Defendant's good character. 
 
 such character would not be likely to com- 
 mit the crime charged. Evidence of good 
 character does not have a tendency to rebut 
 the commission of the crime, except inferen- 
 tially : State v. Ormiston, 66-143. 
 
 1562. Good character is admissible in all 
 criminal cases, and the jury should not be 
 limited in their consideration of such evi- 
 dence to cases where the crime is sought to 
 be established solely by circumstantial evi- 
 dence : State v. Kinley, 43-294 ; State v. Rod- 
 man, 62-456. 
 
 1563. In passing upon the guilt or inno- 
 cence of defendant, evidence of good cha,r- 
 acter should be considered irrespective of 
 whether the other evidence is conclusive or 
 inconclusive, and it is for the jury to deter- 
 mine what weight such evidence of charac- 
 ter shall have : State i\ Crustafson, 50-194. 
 
 1564. In trials *f or felony, and in some in- 
 stances for misdemeanors, the prisoner is 
 always allowed to call witnesses to his 
 good character, and in any case of doubt 
 proof of good character will have great 
 weight. It is a circumstance always to be 
 submitted to the consideration of the jury, 
 together with the other facts of the case: 
 State V. Nash, 7-347, 373. 
 
 1565. It is always permissible for defend- 
 ant to show his general good character and 
 reputation as to the trait involved in the 
 crime charged ; and where defendant was on 
 trial for perjury, held, that he should be al- 
 lowed to show that his general reputation 
 was good : State v. Kinley, 43-294. 
 
 1566. Evidence of good character should 
 be restricted to the general trait which is in 
 issue. Thus, in a prosecution for larceny, 
 the general character for honesty may be 
 stown, but in case of seduction, evidence of 
 character for virtue only is admissible, and 
 not as to good character generally :\ State i\ 
 Curran, 51-112. 
 
 1567. As raising' reasonable doubt: The 
 good character of accused is for the cout 
 sideration of the jury in all cases and not 
 merely in oases of doubt, and it is for them 
 to determine its weight ; and an instruction 
 that it is a circumstance of slight weight and 
 entitled to but little consideration when the 
 proof is clear is erroneous. If reasonable 
 doubt of defendant's guilt is generated by 
 proof of good character, defendant should be 
 
 acquitted: State v. Northrup, 48-583; State 
 V. Fitzgerald, 49-260 ; State v. demons, 51- 
 274 ; State v. Jones, 52-150 ; State v. Lindley, 
 51-843. 
 
 1568. It is error to instruct that, if there i.^ 
 positive evidence of guUt, then good char- 
 acter avails nothing and should be disre- 
 garded: State V. Horning, 49-1 58; -State v. 
 Jones, 52-150. 
 
 1569. It is error to instruct the jury that 
 previous good cliaracter is not a defense, and, 
 as against facts positively and strongly 
 Ijroven and clearly indicating the guilt of de- 
 fendant, it cannot avail as a ground of ac- 
 quittal : State v. Lindley, 51-343. 
 
 1570. Where there was no positive or di- 
 rect evidence as to defendant's having com- 
 mitted the oflEense, held, that an instruction 
 that good character would not overcome evi- 
 dence of guilt, but in the absence of such 
 evidence might be considered as tending to 
 show less probability of defendant's having 
 committed the crime, while it was erroneous 
 in the first part could not have been pi-ejudi- 
 cial: State v. Linde, 54^139. 
 
 1571. Evidence of good character should 
 be considered upon the question as to the de- 
 gree of the offense, as well as upon the ques- 
 tion of guilt or innocence : State v. Jones, 53- 
 150. 
 
 1572. Character not in issue: Althougli 
 defendant may give evidence of his good 
 character, his character is not in issue ex- 
 cept as he may put it in issue by offering evi- 
 dence in support of it, and the court should 
 not instruct the jury that as defendant had a 
 legal right to introduce testimony in support 
 of his character, the fact that he failed to do 
 so was a circumstance to be considered in de- 
 termining the question of his guilt : State v. 
 Kabrich, 39-277. 
 
 1573. Failure to call a witness as to good 
 character raises no presumption against the 
 prisoner; State v. Dockstader, 42-436. 
 
 1574. Evidence of good character on the 
 part of defendant should be confined to the 
 time pi-ior to the finding of the indictment : 
 State V. Kinley, 43-294. 
 
 1575. Evidence of good conduct during 
 confinement is not admissible to prove good 
 chaiacter: State v. Hart, 29-268. 
 
 1576. Where defendant offers a witness to 
 testify as to his good cliaracter, the prosecu- 
 
510 
 
 CRIMINAL LAW, III, 13, g. 
 
 Declarations of person injured ; dying declarations. 
 
 tion cannot, upon cross-examination, ask as 
 to particular facts tending to show such 
 character. The evidence must be confined 
 to the general character or reputation : Gor- 
 don V. State, 3-410. 
 
 15 7 7. A witness as to good character of de- 
 fendant may testify as to his personal observa- 
 tion and knowledge as to the trait of character 
 of defendant in question, and is not limited 
 to the general reputation of defendant in 
 that respect in the community in which he 
 lives: State v. Sterrett, 68-76. 
 
 1578. "Where a witness called by defendant 
 to prove his good character testified that it 
 was divided, held, that he might be asked on 
 cross-examination what particular acts of 
 defendant's life he had heard spoken of, and 
 might state various crimes of the same char- 
 acter which defendant had been accused of 
 by report during the five or six years pre- 
 ceding: State V. Arnold, 12-479. 
 
 g. Declarations of person injured; 
 dying decla/rations. 
 
 1579. Subsequent declarations of a per- 
 son injured in an assault are not admissible 
 either for or against defendant as independ- 
 ent evidence, but can be introduced to con- 
 tradict or impeach the testimony of the 
 person making such declarations, if called as 
 a witness, the requisite foundation having 
 been laid : State v. Emeigh, 18-122. 
 
 1580. Dyin^ declaralious ; apprehension 
 of death: Declarations of deceased sought to 
 be introduced in evidence as dying declara- 
 tions must be shown to have been made un- 
 der the sense of impending death and in the 
 fuU belief that he could not recover. It is 
 sufBcient, however, if this satisfactorily ap- 
 pears in any mode. It may be shown by proof 
 of evident danger, or conduct of the person 
 making the declaration, or other circum- 
 stances, such as the nature of the wound, the 
 state of illness, etc. : State v. Qillich, 7-387, 
 309 ; Statev. Nash, 7-347 ; Stafev. Leeper,'70—. 
 
 1581. It is not necessary to show that at 
 the time the declarations were made, de- 
 ceased was under the apprehension of im- 
 mediate dissolution, or that he was in articulo 
 mortis. It is sufiicient if he believes that Ms 
 death is impending and certain. The length 
 of time that elapses between the declara- 
 
 tion and the death furnishes no rule as 
 to the admission of evidence, noi- will a dec- 
 laration which was competent when made 
 be rendered incompetent by the subsequent 
 revival of strength in the dying person : State 
 V. Nash, 7-347. 
 
 1582. To render dying declarations compe- 
 tent evidence against one indicted for homi- 
 cide of the person making the declaration, it 
 must appear that they were made in the full 
 belief of deceased that he would not recover 
 and that his death was impending. In a par- 
 ticular case, held, that it did not sufficiently 
 appear that deceased, at the time he made 
 the declarations offered in evidence, enter- 
 tained such behef : State v. Weaver, 57-730. 
 
 1583. Credibility of declarations: The 
 person whose declarations are admitted must 
 be considered as standing in the same situa- 
 tion as if he were sworn. Such declarations 
 are to be given the same degree of credit as 
 his testimony would have received if he had 
 been examined under oath, and his state of 
 mind at the time the declarations were made, 
 and his behavior, and his character, may be 
 shown for the purpose of affecting the credi- 
 bility of his declarations : State v. Nash, 7- 
 347. 
 
 1584. The statement of deceased must be 
 such as would be receivable if he were alive 
 and could be examined as a witness. There- 
 fore if the declaration shows upon its face 
 that it is a mere opinion, it should be ex- 
 cluded ; otherwise it should be received and 
 its credibility left to the determination of the 
 jury : State v. demons, 51-374. 
 
 1585. Dying declarations can only be ad- 
 mitted in regard to facts, and such declara- 
 tions are not admissible with reference to 
 whether the act of assailant was purposely 
 done or not: State v. Donnelly, 69-705. 
 
 1580. Admissibility: The competency of 
 dying declarations is to be determined by the 
 judge in view of all the surrounding and at- 
 tendant circumstances, and he should hear 
 and weigh the evidence both for and against 
 the competency of such declarations, before 
 receiving them in evidence : State v. Elliott, 
 45-486. 
 
 1587. The fact that the person making 
 dying declarations was a materialist and did 
 not believe in a God or a future conscious 
 existence is not competent as affecting the 
 
CRIMINAL LAW, III, 13, g, h. 
 
 511 
 
 Dying declarations.— Burden of proof and amount of evidence. 
 
 admissibility of such declarations, but should 
 be received as affecting their credibility; 
 Jbid. 
 
 1588. Dying declarations of another per- 
 son injured: Where defendant vras on trial 
 for the murder of one person, held, that it 
 was error to admit in evidence dying decla- 
 rations of another person killed at the same 
 time, to the effect that he was stabbed by de- 
 fendant : State ». Westfall, 49-328. 
 
 1589. How proved: Where dying declara- 
 tions are at the time reduced to writing by 
 one who hears them, but the writing is not 
 read over to nor signed by declarant, the 
 writing is not itself admissible in evidence as 
 a dying declaration ; but it may be used by 
 the person making it, as a memorandum 
 from which to refresh his recollection in tes- 
 tifying as to the declarations: State v. 
 Fraunlmrg, 40-555. 
 
 1590. The failure to produce such writing 
 or account for its absence will not render 
 parol evidence of the declarations incompe- 
 tent : State v. Sullivan, 51-142. 
 
 1591. An affidavit made out for affiant by 
 another party in the language of affiant and 
 partly in substance from affiant's statements, 
 and not read over to affiant before signing, is 
 not admissible to prove his statements : State 
 V. Elliott, 45-486. 
 
 1593. Where dying declai'ations are orally 
 made and a statement thereof is also reduced 
 to writing, if the writing and the oral state- 
 ments are the same, the absence of the writ- 
 ing should be accounted for before evidence 
 of the oral statements can be received. But 
 if the declarations are repeated at different 
 times, and one of them is reduced to writ- 
 ing, covering different grounds and referring 
 to different matters from those comprised in 
 the oral statements, then both the oral and 
 written statements may be received: State v. 
 Tweedy, 11-350. 
 
 1593. Where dying declarations are in- 
 complete by resison of death intervening, or 
 temporary inability or interruption suspend- 
 ing their utterance, which is never resumed, 
 the declaration is not receivable ; but the fact 
 that it does not give a complete narrative of 
 what occurred, or might legitimately be sup- 
 posed to have occurred, will constitute no 
 objection to its competency or sufficiency: 
 State V. Nettlebush, 30-357. 
 
 As to evidence of previous threats of de- 
 ceased, where self-defense is relied upon, 
 see supra, §§ 93-97. 
 
 h. Burden of proof and amount of 
 evidence; reasonable doubt. 
 
 1594. Burden of proof as to proviso: The 
 
 burden of proving an exemption under a 
 proviso rests upon the party claiming it: 
 Sayre v. Wheeler, 31-112. 
 
 As to pleading exceptions and provisos, see 
 supra, g§ 1018-1024. 
 
 1595. Burden of proving alibi: Where 
 defendant seeks to establish an alibi, the bur- 
 den of proof rests upon him, and it cannot be 
 established except by a preponderance of 
 evidence: State v. Red, 53-69; State v. Riv- 
 ers, 68-611. 
 
 1596. But this does not abrogate the doc- 
 trine that a person cannot be convicted upon 
 a preponderance of evidence, and if a reason- 
 able doubt arises upon the whole evidence 
 and upon the evidence establishing certain 
 essential facts, or upon evidence of facts in- 
 consistent with the prisoner's guilt, the jury 
 should acquit. Where defendant relies upon 
 an dlihi, the burd«n of proof is upon him to 
 establish by a preponderance of evidence the 
 fact that he was no^ present at the commis- 
 sion of the crime : State v. Hamilton, 57-596 ; 
 State V. Krewsen, 57-588 ; State v. Hemrick, 
 62-414; State V. Fry, 67-475. 
 
 1597. Evidence of an alibi cannot avail 
 unless it preponderates : State v. Reed, 63-40. 
 
 1598. A bare preponderance of proof in 
 favor of defendant, where he relies upon an 
 alibi, is sufficient : State v. Vincent, 34-570 : 
 State V. Northrup, 48-583: State v. Kline, 
 54^183. 
 
 1599. It is error in such case to charge the 
 jury that they must be fully satisfied of the 
 alitn: State v. Hardin, 46-623; State v. 
 Henry, 48-403. 
 
 As to the effect of attempting to prove an 
 aliM, see supra, g§ 1437, 1438. 
 
 1600. Burden of proof as to insanity: 
 Where insanity is sought to be established as 
 an excuse for a crime, the presumption of 
 sanity must be overcome by a preponderance 
 of evidence. It is not sufficient for defend- 
 ant to produce such evidence as to I'aise a 
 reasonable doubt of sanity, nor is he, on the 
 
512 
 
 CRIMINAL LAW, III, 13, h. 
 
 Burden of proof and amount of evidence. 
 
 other hand, required to prove the insanity 
 beyond a reasonable doubt : State v. Felter, 
 32-49 : State v. Bruce, 48-530. 
 
 1601. A preponderance of evidence of in- 
 sanity raises a reasonable doubt of guilt: 
 Ibid. 
 
 1G02. While the burden of proving insan- 
 ity as a defense is upon defendant, he is only 
 required to establish such defense by a pre- 
 ponderance of evidence. It is error to in- 
 struct the jury that if the evidence goes no 
 further than to show such a state of mind to 
 be possible or merely probable, it is not suffi- 
 cient. The presumption of sanity simply 
 imposes upon defendant the burden of prov- 
 ing insanity, and such presumption is not to 
 be weighed against any measurable amount 
 of evidence : State v. Jones, 64-349. 
 
 And further, see supra, §§ 22-24. 
 
 1 603. As to the defense of insanity as well 
 as that of alibi, the burden of proof is upon 
 defendant : State v. Hemrick, 62-414. 
 
 1604. The fact that defendant undertakes 
 to prove insanity does not relieve the prose- 
 cution of the burden of pro\ ing the criminal 
 act and the criminal intent, and does not 
 give defendant the opening and closing: 
 State V. Felter, 32-49. 
 
 1605. Self-defense: Where there is evi- 
 dence tending to show tl»at defendant acted 
 in self-defense, the jury should be instructed 
 that the burden of proof is upon the state to 
 prove that the homicide was not committed 
 in self-defense : State v. Cross, 68-180. 
 
 1606. Chastity of prosecutrix In seduc- 
 tion : The presumption being in favor of the 
 chastity of the prosecutrix in a prosecution 
 for seduction, defendant relying upon the 
 want of such chastity must prove unchastity 
 by a preponderance of evidence. It is not 
 sufficient merely to produce such evidence as 
 would raise a reasonable doubt of chaste char- 
 acter, but the evidence must be such as to 
 overcome the presumption of chastity by a 
 fair preponderance : State v. Wells, 48-671. 
 
 1607. Burden of proof as to afflruiative 
 defenses: Any negative matter, such as the 
 absence of self-defense, the want of sufficient 
 provocation, etc., must be shown by the 
 state, and defendant cannot be held to have 
 the burden of proof cast upon him to show 
 such matters. But whenever the matter of 
 defense is whoUy disconnected from the body 
 
 of the offense charged (for instance, where in 
 homicide it is claimed that the death is caused 
 by neglect of a wound), this general rale does 
 not properly apply, but in such cases the 
 burden of proof rests upon the accused: 
 State V. Morphy, 33-270. 
 
 1608. Recent possession of stolen prop- 
 erly: Where there was evidence of recent 
 possession of stolen property by defendant 
 accused of the larceny thereof, held error to 
 instruct the jury that the burden of proof 
 was upon defendant to satisfy the jury that 
 this possession was innocent. Less than a 
 preponderance of evidence on that point may 
 be sufficient to justify a reasonable doubt of 
 defendant's guilt : State u. Emerson, 48-172. 
 
 1609. In such case defendant is only re- 
 quired to introduce sufficient evidence as to 
 having honestly come into possession of the 
 goods to raise a reasonable doubt of guilt: 
 State V. Richart, 57-245 ; State v. Hopkins, 
 65-240. 
 
 1610. Proof of identity: Evidence tend- 
 ing to show non-identity of defendant with 
 the person committing the crime chai'ged is 
 merely evidence to rebut that offered by the 
 state and may be sufficient tb raise a reason- 
 able doubt of guilt although not preponder- 
 ating over that of the state: State v. 
 McCracken, 66-569. 
 
 1611. Burden docs not shift: It is enw 
 to instruct the jury that if evidence on the 
 part of the state, alone and unexplained, 
 would establish beyond a reasonable doubt 
 the guilt of the defendant, then the burden 
 of proof is shifted to the defendant to estab- 
 lish his defense by a preponderance of evi- 
 dence : State v. Porter, 64r-237. 
 
 1612. Amount of evidence: In criminal 
 cases the jury do not weigh the evidence as 
 in civil cases. Neither a preponderance of 
 evidence nor any weight of preponderant 
 evidence is sufficient to warrant a conviction 
 in a criminal case unless it genei-ates a full 
 belief of the guilt of the party charged, to 
 the exclusion of all reasonable doubt : Tweedy 
 V. State, 5^33. 
 
 1613. Sufficiency of STidence: While the 
 juror is not an artificial being whose judg- 
 ment is to be governed by technical and arti- 
 ficial rules, btit is a man, and should, while 
 acting as juror, act as a man exercising bis 
 reason, his intelligence, his every-day judg- 
 
CRIMINAL LAW, III, 13, h. 
 
 513 
 
 Reasonable doubt. 
 
 merit and his common sense, yet it is errone- 
 ous to charge that he is not at liberty to dis- 
 believe as a juror while he believes as a man : 
 State V. Collins, 20-85. 
 
 Hi 14. But error in using such language 
 was held not sufiBcient to warrant a reversal 
 where the case was otherwise fairly pre- 
 sented and the evidence of guilt was satis- 
 factory : State v. Pratt, 20-267. 
 
 1C15. It is improper to instruct the jury 
 that what satisfies the mind outside of the 
 jury box should do so within it. Informa- 
 tion derived from the evidence which might 
 be sufficient to lead a person not acting as a 
 juror to a belief of defendant's guilt might 
 not be sufficient to justify a verdict of guilty 
 by such juror: State v. Ruby, 61-86, 
 
 IGIO. Reasonable doubt: It is a reason- 
 able doubt entertained by the jury and not 
 by any one member thereof that justifies an 
 acquittal: State v. Eoralacher, 19-154. 
 
 1()17. An instruction that a reasonable 
 doubt must be one that arises in the minds of 
 the whole jury, held erroneous, as liable to 
 convey the impression that unless such doubt 
 was shared by all the jurors, there should bo 
 a conviction: State v. Stewart, 52-284. 
 
 1618. Each juror must, under his oath, 
 vote according to his own convictions, and 
 the doubt with which he has to do is the 
 doubt in his own mind: State v. Sloan, 
 55-217. 
 
 1619. Although each juror is to act upon 
 his own judgment, and is not required to 
 surrender his own conviction unless con- 
 vinced, yet it is not necessary that such a 
 pioposition be stated in connection with the 
 ordinary charge in regard to reasonable doubt : 
 State V. Hamilton, 57-596. 
 
 1620. It is not necessary that the jury be 
 advised that each juror is to act upon his 
 •own convictions, and that he should not con- 
 cur in a verdict which is against his judg- 
 ment : State v. Fry, 67-475. 
 
 1621. If the jury in considering the whole 
 case have reasonable doubt upon any essen- 
 tial ingredient of the offense, this entitles the 
 defendant to an acquittal because it gen- 
 erates a doubt of guilt: State v. Hennessy, 
 55-299. 
 
 16i3. The general instruction upon rea- 
 sonable doubt which is usually given need 
 not be repeated in each instruction which re- 
 VOL. 1—33 
 
 lates to the elements of the ci-ime or facts of 
 the case : Ibid. ; State v. Cross, 68-180. 
 
 1623. Where tire court has once instructed 
 the jury that before the state can ask. a con- 
 viction it must have satisfied them by the 
 evidence beyond a reasonable doubt of the 
 trath of each material allegation substan- 
 tially as alleged, it is not necessary to repeat 
 the statement as to reasonable doubt in con- 
 nection with every proposition stated in other 
 instructions : State v. Matoy, 44-104. 
 
 1624. It is not a reasonable doubt of any 
 one proposition of fact which entitles to an 
 acquittal, but a reasonable doubt of guUt 
 arising upon the consideration of all tlie evi- 
 dence in the case: State v. Hayden, 45-11. 
 
 1625. The doctrine of reasonable doubt is 
 wisely limited to the general conclusion of 
 guilty or not guilty upon all the evidence in 
 the case. It cannot safely be applied to any 
 one fact in the case howsoever material it 
 may be, as, for instance, insanity : State v. 
 Felter, 32-49. 
 
 1626. The court is not required to charge 
 that the jury should acquit if they have a 
 reasonable doubt as to a specified element of 
 the crime. It is sufficient to instruct them 
 generally that they should acquit, if upon 
 the whole case they have sucli a doubt of the 
 guilt of defendant: State v. Curran, 51-113; 
 State V. Stewart, 53-284. 
 
 1627. An instruction to the effect that if, 
 after carefully weighing all the evidence and 
 deliberately considering the whole case, the 
 jury had a reasonable doubt of the guilt of 
 defendant, they should return a veidiet of 
 not guilty, held sufficient; and held also 
 that the rule as to reasonable doubt need not 
 be repeated in other instructions: State v. 
 Miller, 53-154. 
 
 1628. It is error to instruct that a prepon- 
 derance of evidence in behalf of defendant 
 is necessary to raise a reasonable doubt of 
 guilt : State v. Porter, 64-237. 
 
 1629. It is error to distinguish between 
 two material facts and instruct as to one that 
 it need only be fully and clearly proven: 
 State V. Stewart, 52-284. 
 
 1630. An hypothesis which wUl be suffi- 
 cient to sustain a reasonable doubt must arise 
 out of the evidence adduced and not out of 
 facts of which there is no proof: State v. 
 Porter, 34^131. 
 
514 
 
 CRIMINAL LAW, m, 13, h; 14. 
 
 Eeasonable doubt. — Appeals. 
 
 1G31. For a definition of reasonable doubt, 
 see State v. Ostrandar, 18-435, 458. 
 
 1G32. Tlie following instruction to the 
 jury as to re.-'.sonable doubt held proper: 
 " btfore you will be justified in convicting 
 the defendant you must be satisfied of his 
 guilt beyond a reasonable doubt : " State v. 
 Helvin, 05-289. 
 
 1C33. Instructions as to reasonable doubt 
 held tufiicient in particular cases: State v. 
 Sterling, 34-443; State v. Bodekee, 34-520; 
 State V. Pierce, 05-85; State v. Elsham, 
 70 . 
 
 183-i. Donbt as to degree of crime: By 
 statutory provision (Code, § 4429), the jury 
 is requii-ed, in case of reasonable doubt as to 
 the degree of the offense of which defendant 
 is guilty, to convict him only of the lower 
 degree, and it is error to fail to instruct the 
 jury in accordance with this provision, even 
 where proper instructions to the effect that 
 they may convict of a lower degi'ee or in- 
 cluded crime are given : State v. Jay, 57-164 ; 
 State V. Neis, 08-409 ; State v. Walters, 45- 
 889. 
 
 16 So. To warrant a conviction of grand 
 larceny, the fact that the value of the prop- 
 erty exceeded twenty dollars, as well as the 
 fact of the stealing, should be proved beyond 
 a reasonable doubt : State v. Wood, 46-116. 
 
 That the court should instruct as to lower 
 degrees of the crime charged and as to in- 
 cluded crimes, see supra, g§ 1209-1217. 
 
 163;;. In civil cases: The rule that the 
 guilt of defendant must be established be- 
 yond a reasonable doubt was engrafted on the 
 common law because of a tenderness for, and 
 in favor of, persons accused of crimes which 
 affected their lives and liberties, at a time 
 when the criminal law was harshly adminis- 
 tered and cruel and harsh punishments were 
 inflicted for slight and trivial offenses. Such 
 a rule does not obtain in a civil action to 
 recover damages for a criminal act : Welch v. 
 Jugenheiiner, 56-11. 
 
 And see further as to degree of proof in 
 civil cases, Evidence, g§ 840-855. 
 
 14r. Appeals. 
 
 As to the various questions under Appeals 
 in general, see that title. 
 
 ie37. From flniil juilgment: An appeal 
 in a criminal case lies only from final judg- 
 
 ment and not from an intermediate order or 
 decision. (Oven-uling State v. Brandt, 41- 
 593) : State v. Sicearengen, 43-336. 
 
 1038. This doctrine is applicable to appeals 
 by the state as well as by defendant : State v. 
 Davis, 47-634. 
 
 1039. A criminal case cannot be brought 
 to the supreme court by agreement before 
 rendition of final judgment : Rutter v. State, 
 1-99. 
 
 1040. An appeal by defendant will not lie 
 in a criminal case from the overruling of ore 
 ground of demurrer to the indictment where 
 another ground of demurrer is sustained and 
 the indictment is dismissed : State v. Hoff- 
 man, 67-C81. 
 
 1041. Not by consent after time has ex- 
 pired : The supreme court cannot entertain 
 jurisdiction by consent of parties to a case 
 after the time for taking appeal has run out: 
 State V. Fleming, 13-448. 
 
 1042. A party in a criminal as well as in a 
 civU case must prosecute his appeal within 
 the time prescribed by law, and cannot ap- 
 peal after the expiration of the time allowed 
 for appeal : State v. Westfall, 37-575. 
 
 1043. Waiver of right: After payment of 
 fine or serving out the imprisonment accord- 
 ing to the sentence, defendant cannot appeal 
 from the judgment : Ibid. 
 
 1644. Appenls by Ihe stale: Upon an ap- 
 peal by the state, the supreme court cannot 
 interfere with the judgment of the lower 
 court. The decision of the lower court ends 
 the proceedings as against the defendant: 
 State V. Kinney, 4:4:-4Ai. 
 
 1645. In such case, the court having giren 
 an exposition of the law, no further order is 
 necessary or allowable: State v. Keeler, 2&- 
 551. 
 
 1 640. The fact that a procedendo issues in 
 the usual form requiring the lower court to 
 proceed after an appeal by the state is deter- 
 mined does not give the lower court any 
 power in such cases : State v. Kinney, 44-444. 
 
 1647. Under the provisions of Code of 
 1851, a writ of error was given to defendant 
 in criminal ca'es but not to the state: State 
 V. Johnson, 2-549. 
 
 1648. Assigiimeiit of errors; argument: 
 No assignment of errors is necessary on ap- 
 peal in a criminal case : State v. Pratt, 20- 
 267. 
 
CRIMINAL LAW, III, 14. 
 
 516 
 
 Appeals. 
 
 1649. In the absence of assignment of 
 error and of argument in criminal cases, the 
 appel'ate court is required to examine the 
 record and render such judgment upon it as 
 the law demands,- but the court will not 
 enter into a discussion of imaginary errors : 
 State V. Quinn, 63-396. 
 
 1650. The court will, In a criminal case, 
 upon an appeal by defendant, examine the 
 record and determine whether the law has 
 been correctly administered, even though no 
 formal objection has been made to the pro- 
 ceeding and though there be no formal as- 
 signment of error or argument: State v. 
 Lundermillc, 50-695 ; State v. Barlow, 50-701. 
 
 1651. Objections not raised below: The 
 rule that objections not raised in the court 
 below will not be considered in the supreme 
 court does not apply in criminal cases : State 
 V. Potter, 28-554. 
 
 1652. Printing of abstracts and argu- 
 ments: The court may make reasonable rules 
 relating to practice upon appeals and provide 
 that upon a sufficient showing they may be 
 waived or modified, and it having provided 
 that the evidence on an appeal must be ab- 
 stracted and the abstract printed, it will not 
 consider a case not presented in accordance 
 with these rules, unless application for the 
 waiver of such rules has been duly made: 
 State V. Day, 58-678. 
 
 1653. The provisions of the rules of the 
 supreme court for suspending such mles in 
 regard to printed absti-acts in criminal cases 
 on account of the poverty of defendant ap- 
 pealing must be complied with. An abstract 
 in writing or caligr;-,phic writing must be 
 submitted to the attorney-general, and the 
 fact of the inability of appellant to pay for 
 printing must be shown by affidavit, and 
 further it must be shown by the counsel, bj' 
 affidavit or professional statement, that there 
 is merit in the appeal : State v. Earl, 66-84. 
 
 1654. What must appear: Where the rec- 
 ord fails to show that defendant was indicted, 
 or was tried, or that a verdict was found 
 against him, or that any judgment was en- 
 tered, or that he has appealed, the appeal 
 will be dismissed : State v. Quigley, 62-758. 
 
 1655. Where the rec rd shows no service 
 of notice'of appeal, the court is without ju- 
 risdiction to examine any question in the 
 case : State v. Leslie, 65-805. 
 
 1658. Where it does not appear from the 
 abstract that judgment has been rendered, 
 the appeal wiU be dismissed: State v. Wheeler, 
 65-619. 
 
 1C57. What will be ground of reversal-. 
 Technicalities are to be disregarded : Slate v. 
 Ensley, 10-149. 
 
 1658. It is only errors and defects which, 
 affect .substantial rights that can be consid- 
 ered: Ilintermeister v. State, 1-101. ' 
 
 1659. A purely technical objection, as, for 
 instance, the erroneous discharge of one 
 grand jury, and the summoning of another, 
 by which the indictment was found, in the 
 absence of any objection to the second except 
 the discharge of the first, will not be ground 
 for a reversal: State v. Hughes, 58-165. 
 
 16li0. Where the error urged was the oveF- 
 ruling of a motion to set aside the judgraent, 
 based upon slight irregularities in tlie selea- 
 tion of the grand jury, the court held that 
 they did not affect the substantial rights of 
 the party and affirmed the judgment: State 
 V. Carney, 20-83. 
 
 1661. Error withont prejudice: Where 
 the evidence is all before the court,, and it is 
 apparent that an alleged error in the iustruo- 
 tions could not have been prejudicial to de- 
 fendant, the case will not be revensed : State 
 V. Ouisenhause, 20-227. 
 
 1662. As malice aforethought is not an 
 element of the crime of assault and battery, 
 held, that in a criminal prosecution for assault 
 with intent to murder, in which defendant 
 was only convicted of assault and battery. 
 the exclusion of evidence tending to show 
 malice aforethought, even if erroneous, was 
 without prejudice: State v. Graham, 51-72. 
 
 1663. A verdict of guilty will not be dis- 
 turbed because of an erroneous assumption 
 by counsel when it appears that no prejudice 
 to the rights of the prisoner resulted there- 
 from : State v. Turner, 19-144. 
 
 1GG4. Where, after the overruling of a de- 
 murrer, defendant was tried as though on a 
 plea of not guilty, but without any plea hav- 
 ing been in fact made, held, that he was not 
 entitled on appeal to have the conviction set 
 aside and be allowed to enter a plea of not 
 guilty: State V. Greene, 66-11. 
 
 1665. Error in prosecuting a violation of a 
 city ordinance in the name of the state in- 
 stead of the name of the city will not be 
 
516 
 
 CRIMINAL LAW, III, 14. 
 
 ground of reversal, at least where the error 
 was not objected to on the trial: State v. 
 King, 37-463. 
 
 I6C6. Form of the record: In a criminal 
 case, the record after the caption, stating the 
 time and place of holding the court, should 
 consist of the indictment properly indorsed 
 as found by the grand jury, the arraignment 
 of the accused, his plea, the impaneling of 
 the traverse jury, their verdict and the judg- 
 ment of the court : Harriman v. State, 2 G. 
 Gr., 270. 
 
 1667. Other matters and proceedings, such 
 as motions, objections, exceptions and the 
 lik% do not form any part of the record un- 
 less made so by order of the court, by bill of 
 exceptions, by agreement of parties, special 
 verdict or otherwise : Ibid. 
 
 IOCS. Bill of exceptions; cerliilcate of 
 jndge: A certificate of the judge showing 
 rulings made during the trial and exceptions 
 ■ thereto is a sufficient compliance with the 
 statute to constitute a bill of exceptions: 
 State V. Fay, 43-651. 
 
 1660. While a certificate of the judge, 
 sufficiently setting out or identifying the 
 testimony, may take the place of a bill of 
 exceptions for the purpose of making the 
 evidence a part of the record, such certifi- 
 cat«, equally with a bill of exceptions, must 
 bo made at the time of the trial or at such 
 time as the court may fix; otherwise the 
 evidence may be stricken out on appeal: 
 State V. Newcomb, 56-835. 
 
 1670. Transcript: Though the defendant 
 do not appear, or fail to file a transcript, the 
 state may file the same, and the court will 
 examine the record, and render such judg- 
 ment as the law demands: State v. Pratt, 
 20-267. 
 
 1671. Exceptions, whatsnfiScient: A gen- 
 eral exception to the admission of testimony 
 en masse, where such testimony includes 
 much testimony that is unobjectionable, with- 
 out having asked any ruling of the court as 
 to its admissibility, will not entitle the de- 
 fendant to have the question of admissibility 
 of portions of such evidence considered on 
 appeal: State v. Benge, 61-658. 
 
 1672. Defective record, how cured : Where 
 the record in a criminal case on appeal was 
 not in such form that the court was author- 
 teed to pass upon it, and the prosecuting offi- 
 
 cer insisted on such defect by motion, held 
 that the motion would be sustained and the 
 submission set aside, and the case be put 
 again on the docket for such further proceed- 
 ings as the rules should direct and the rights 
 of defendant demand: State v. Havercamp, 
 53-737. 
 
 1673. The mere fact that the indictment is 
 mislaid or stolen after the trial and cannot be 
 sent up with the writ of error to the supreme 
 court on appeal will not authorize the supreme 
 court to reverse the judgment: Smith v. 
 State, 4 G. Gr., 189. 
 
 1674. Wheu the record must contiiin the 
 whole evidence: The supreme court cannot 
 pass upon the question whether the lower 
 court ruled correctly upon a motion for a 
 new trial on the ground that the verdict was 
 contrary to the evidence, unless the whole 
 evidence upon the trial was before it: State 
 V. Crawford, 11-143. 
 
 1675. In bringing before the supreme 
 court the question whether the verdict be- 
 low was in accordance with the evidence, a 
 motion for a new trial should be made in the 
 lower court and all the evidence taken to the 
 supreme court on appeal: State v. Hochm- 
 berry, 11-269. 
 
 1676. The court cannot reverse the judg- 
 ment on the ground that the verdict is 
 against the evidence unless the record dis- 
 closes that all the testimony is before it : State 
 V. Pitts, 11-343; State v. Carr, 43-418. 
 
 1677. Griinting new trial: The supreme 
 court will interfere more readily in a crimi- 
 nal than in a civil case, where a new trial 
 asked on the ground that the verdict is not 
 supported by the evidence has been refused: 
 State V. Tomlinson, 11-401. 
 
 1678. But it will cautiously interfere with 
 verdicts in such cases: State v. Collins, 
 20-85. 
 
 1679. While the duty of the supreme court 
 to interfere with an unjust verdict is rec- 
 ognized, yet when the testimony is conflict- 
 ing, it must be satisfied of its insufficiency to 
 convince the judgment, reason and con- 
 science of the triers, before setting aside the 
 conclusion arrived at by them : State v. El- 
 liott, 15-72. 
 
 1 680. The supreme court cannot, on appeal, 
 interfere with the verdict of the jury when 
 there is clear conflict in the testimony, this 
 
CRIMINAL LAW, III, 14. 
 
 517 
 
 Appeals. 
 
 rule being applicable in criminal as well as 
 civil actions : State v. Falconer, 70 . 
 
 1681. "While the supreme court will exer- 
 cise a just caution in interfering with the 
 verdict of the jury, especially where the 
 court below has refused to disturb it, yet a 
 conviction clearly in conflict with the evi- 
 dence wUl be set aside : State v. Woolsey, 30- 
 251. 
 
 1682. When the evidence upon which de- 
 fendant is convicted is so lacking in afl&rm- 
 ative force as not to generate a belief of prob- 
 able guilt, a new trial wUl be granted : State 
 V. Hilton, 33-241. 
 
 16S3. In particular cases, held, that the 
 evidence was not sufficient to sustain a ver- 
 dict of guilty : State v. Moffitt, 31-316 ; State 
 V. May, 30-305 ; State v. Campbell, 69-556. 
 
 1684. Final judgment in supreme court: 
 The supreme court may, on appeal in crim- 
 inal cases, render such judgment as the dis- 
 trict court should have rendered: State v. 
 Thompson, 31-893. 
 
 1685. Reducing the sentence: Where the 
 sentence is too severe, the court will reduce 
 the punishment, but will not reverse the case 
 on that account : State v: Madden, 35-511 ; 
 State V. Little, 42-51. 
 
 1686. The power to reduce the sentence 
 will be exercised only when the court below 
 has manifestly visited too severe a penalty, 
 one disproportionate to the degree of guilt as 
 shown by the proof: State v. Freeman, 27- 
 833. 
 
 1687. To justify the exercise of such 
 power, it must be made to appear that the 
 punishment is excessive : State v. Allen, 33- 
 248. 
 
 1688. To authorize the supreme court on 
 appeal to diminish the punishment, the record 
 should show with sufficient clearness that the 
 punishment inflicted is beyond the demands 
 of justice : State v. Wilmoth, 63-380. 
 
 1689. In determining whether the punish- 
 ment in a particular case is excessive, the 
 court will decide the case upon its peculiar 
 facts, and each offender must receive the 
 punishment he merits without regard to the 
 punishment inflicted on others: State v. 
 Upson, 64-248. 
 
 1690. Wliere there is no evidence before it 
 by which the proper amount of penalty may 
 be determined, the supreme court will not 
 
 reduce the punishment inflicted : State ■». 
 Baughman, 20-497. 
 
 1691. The supreme court will not reduce 
 the sentence of a lower court in a criminal 
 case when the record does not disclose all the 
 circumstances attending the commission of 
 the offense : State v. Patton, 19-458. 
 
 1692. The court must have some leged 
 data upon which to base its action in redila- 
 ing the sentence: State v. Bavxjhvian, 2ft- 
 497. 
 
 1 693. The supreme court will not reduce 
 the punishment imposed by the lower courf^ 
 unless all the evidence is before it : State' v. 
 Harris, 36-268; State v. Durston, 52-635^ 
 State V. Baughman, 20-497; Stafev. Joaquin, 
 43-131 ; State v. Buck, 59-382. 
 
 1694. The supreme coU! twill not reduce 
 the sentence merely on an abstract of the 
 evidence : State v. Freeman, 27-333. 
 
 1695. Facts in a prosecution for murder 
 held not such as to require the reduction of 
 the sentence : State v. Houston, 50-512. So 
 held also in a case of accessory to assault 
 with intent to commit murder: State ■». 
 Mower, 68-61. 
 
 1 696. So held also in a case of seductioiK 
 State V. Heatherton, 60-175. 
 
 1697. So held also in a case of burglary^: 
 State V. Franks, 64-39. 
 
 1698. So held also in a case of larcenjw 
 State V. Ritchie, 69-133. 
 
 1699. In a particular case, where the high- 
 est punishment permitted by the law for tha 
 offense charged was imposed for an act which 
 was not the most aggravated form of the 
 crime, held, that the sentence was excessive 
 and it was accordingly reduced: State v. 
 Thompson, 46-699. 
 
 1 700. In a particular case, held that the evt 
 dence was insufficient to support a verdict of 
 murder in the first degree ; but it not being 
 claimed that defendant was not guilty of 
 manslaughter, the court reduced the seik- 
 tence to the proper one for the latter crime-: 
 State V. Fields, 70 . 
 
 1701. Where defendant was convicted on 
 an indictment improperly charging in two 
 counts two distinct crimes and was sentenced 
 on both counts, held, that on appeal the sen- 
 tence would be reduced to what would have 
 been a proper sentence on one count, although 
 the objection on the ground of duplicity baa 
 
518 
 
 CRIMINAL LAW, III, 14, 15. 
 
 Appeals. — Imprisonment. 
 
 not been raised in the court below: State v. 
 &nry, 59-391. 
 
 1702. In particular cases, held, that the 
 sentence should be reduced as excessive: 
 State V. Madden, 35-511; State v. Hayden, 
 45-11; State v. Doering, 48-650; State v. 
 Moody, 50-443 ; State v. Sullivan, 51-143. 
 
 170S. Effort of reversal: Upon reversal 
 of a judgment of conviction, the cause may- 
 be remanded for a new trial. Jeopardy is 
 not considered as having attached if the de- 
 fendant is erroneously convicted and obtains 
 a reversal of tlie judgment : State v. Knouse, 
 33-365. 
 
 1 70^-. A judgment in a criminal case being 
 reversed on appeal for a defect in the indict- 
 ment, the cause was remanded for new trial 
 with direction that preliminary thereto it 
 might be re-submitted to another grand jury : 
 Slate V. Morrissey, 23-158. 
 
 1705. Kehearing: The chapter relating to 
 proceedings in the supreme court in civil 
 cases is intended to i-egulate generally the 
 practice of tliat court in criminal cases as 
 well. Therefore, held, that the sections relat- 
 ing to rehearing are applicable in ci'iminal 
 cases, and are applicable in behalf of the state 
 as well as defendant : State v. Jones, 64-349. 
 
 1706. A procedendo from the supreme 
 court is not necessary to the jurisdiction of 
 the lower court on a new trial after reversal, 
 and defendant may waive the right thereto. 
 
 ••Jurisdiction over the subject-matter cannot 
 be conferred by consent, but jurisdiction over 
 the parties may be : State v. Knouse, 33-365. 
 
 ^ And see Becker v. Becker, 50-139. 
 
 1707. Co-sts of appeal: In case of appeal 
 by the state, and reversal, it is improper to 
 tax the costs to defendant: State v. Vail, 
 37-103. 
 
 1708. The statute does not provide for tlie 
 payment by the county of costs of printing 
 the abstract, etc., on appeal by defendant, al- 
 tllough judgment against him is reversed: 
 Med V. Polk County, 56-98. 
 
 And further as to costs, see infra. III, 17. 
 
 16. Impriiormnent. 
 
 1709. Void warrant: The f:;ct that the 
 ■wgiTant of commitment to imprisonment is 
 void wiU not entitle the prisoner to release 
 otr habeas corpus if the court or judge is sat- 
 
 isfied from the evidence that he should be 
 held to answer for the crime charged or any 
 other crime (Code, § 3485). In such case the 
 court or judge may make an appropriate 
 order : Jackson v. Boyd, 53-536. 
 
 1710. Imprisonment in the penitentiary 
 for safe keeping: In the absence of any 
 showing of prejudice or the improper exer- 
 cise of discretion, it is not error for a judge 
 to send a prisoner to the penitentiai-y for safe 
 keeping to await his trial: State v. Porter, 
 34-131. 
 
 1711. Expenses of imprisonment: The 
 provision (Code, § 4735) that the expenses of 
 keeping convicts shall be jJaid by the county 
 does not authorize the sheriff to receive any 
 further fees for taking charge of prisoners, 
 eic, than as provided by § 3788: Gruhh v. 
 Louisa County, 40-314. 
 
 1712. The county is not liable for the 
 service of a jailor employed by the sheriff: 
 McDonald v. Woodbui'y County, 48-404. 
 
 1 71.'5. While the sheriff is entitled to rea- 
 sonable compensation as provided by statute, 
 he cannot sue the county therefor until his 
 account has been presented for settlemeDt 
 and allowance : Marvin v. Fremont County, 
 11-463. 
 
 1714. A person furnishing clothing to 
 prisoners on the sheriff's request may main- 
 tain an action against the county therefor, 
 and while only necessary clothing can be pro- 
 cured at the expense of the county, the dis- 
 cretion of the sheriff, acting in good faith, 
 cannot be controlled by the board of super- 
 visors. The person furnishing clothing upon 
 the sheriff's request is only bound to know 
 that it is for prisoners, and suitable, and, per- 
 haps, necessary: Feldenheimer v. Woodbury 
 County, 56-379. 
 
 1715. The county is liable for necessaries 
 for a prisoner, although by reason of his 
 condition it is impossible to confine him in 
 jail: Miller V. Dickinson County, 68-102. 
 
 1716. An order made by a justice issuing 
 a warrant for arrest, that the sheriff keep 
 the prisoner in som.e safe place and provide 
 for his necessities until he is able to be 
 brought before a magistrate for trial, is a 
 nuUity and has no effect upon the liability of 
 the county : Ihid. 
 
 1717. Imprisonment at hard labor: 
 Where the judgment of a court of general 
 
CRIMINAL LAW, III, 15, 16, 17. 
 
 519 
 
 Imprisonment. — Fines and forfeitures. — Costs. 
 
 jurisdiction is that the defendant shall be im- 
 prisoned at hard labor as provided by Code, 
 -§ 4736,^ it will be presumed that the facts as 
 to age, etc., necessary to warrant such judg- 
 ment were shown to the court: State v. Win- 
 strand, 37-110, 113. 
 
 1 718. A judgment may direct that defend- 
 ant be confined to hard labor at the rate of 
 $1.50 per day (Code, g 4741), but it cannot 
 direct that he be confined at that rate until 
 the judgment is paid. The duration of the 
 imprisonment is to be determined by § 4509 : 
 Keokuk V. Dressell, 47-597 : State v. Jordan, 
 80-387; In re Jordan, 39-304; State v. An- 
 werda, 40-151. 
 
 1 71i). Release of poor convicts: Under the 
 provision (Code, § 4611) for release of persons 
 who are imprisoned for failure to pay a fine, 
 or fine and costs, upon proof of inability to 
 pay and giving a uote for the amount, etc., 
 actual imprisonment for thirty days is made 
 a prerequisite to the right to be libeiated: 
 In re Curley, 34^184. 
 
 IT 20. Where a prisoner is thus liberated 
 upon giving note, etc., lie is entitled to have 
 the judgment against him canceled: State v. 
 Van Vleet, 23-168; State v. PecJc, 37-343; 
 State V. Jordan, 39-387 ; In re Jordan, 39- 
 394. 
 
 1721. Where authority to imprison for 
 non-payment of costs is not expressly given, 
 this section does not warrant imprisonment 
 for costs ; and such imprisonment can be 
 imposed only for non-payment of the fine: 
 State V. Eririn, 44-637. 
 
 1722. Under the provision (Code, § 4741) 
 that such release shall not be made if, in the 
 opinion of the sheriff, the judgment may be 
 satisfied under the provisions for imprison- 
 ment at hard labor and credit of the amount 
 allowed theiefor on the judgment, held, that 
 where it had been made to appear by the 
 fiherilf' s answer in a habeas corpus proceed- 
 ing that in his opinion the judgment could 
 not thus be satisfied, a subsequent pleading 
 stating a contrary opinion could not operate 
 to prevent the discharge : In re Jordan, 39- 
 S94, 
 
 1 723. The power to commit for non-pay- 
 ment of a fine not being conferred by Code, 
 g 46U, but existing by virtue of Code, § 4509, 
 a-s incident to the power to impose a fine, if 
 tlie statute authorizing the fine provides that 
 
 a prisoner sliall not be released under § 4C11, 
 such provision is controlling: Hanks v. Worh- 
 man, 69-600. 
 
 1 724. The provisions for the release of poor 
 convicts apply only to persons convicted of 
 criminal offenses. The fine authorized under 
 the prohibitory liquor law for violation of an 
 injunction is not a fine for a crime and the 
 provisions for release of poor convicts does not 
 apply thereto : Ibid. 
 
 As to the provisions to be made in the 
 judgment for impi-isonmeut for non-paj-ment 
 of fine and the extent thereof, also as to sen- 
 tence to hard labor, and as to elTect of im- 
 prisonment on the judgment for fine and 
 costs, see supra, gg 1321-lS3o. 
 
 16. Fines and forfeitures. 
 
 1725. Under the provision (Code, gg 3370 
 and 1838) that fines and forfeitures shall go 
 into the treasury of the county where the 
 same are collected for the benefit of the 
 school fund, the county in which the fine is 
 collected is deemed to be the county in wMch 
 judgment therefor is rendered and execution 
 issued, and not the county in which the exe- 
 cution may be enforced against defendant's 
 property: Pottawattamie County v. Carroll 
 County, 67-456. 
 
 1 726. Suit for the penalty on a bail bond 
 may be brought by the county. It has the 
 right to sue in such case as being the trustee 
 of an express trust: Shelby County v. Sim- 
 monds, 33-345. 
 
 1727. The fact that a fine or forfeiture is 
 to go into the county treasury for the benefit 
 of the school fund does not make the county 
 such party to an action therefor brought by 
 the state as to entitle defendant to a change 
 of venue: State v. Merrihew, 47-113. 
 
 1 728. The county in which action on a bail 
 bond is properly brought is the county en- 
 titled to the money collected : Lucas County 
 V. Wilson, 61-141. 
 
 Further as to suit on bail bond, see supra, 
 g§ 1410-1414. 
 
 17. Costs. 
 
 1729. Liability of county: Under the pro- 
 vision of Rev. Stats, of '43, held, that counties 
 were liable for costs in a criminal case in 
 which a nolle prosequi was entered, or in 
 
520 
 
 CRIMINAL LAW, UI, 17. 
 
 Costs. 
 
 which an indictment was quashed, or judg- 
 ment ent rel for defendant on demurrer: 
 Bonney v. Van Bitren County, 2 G. Gr., 230. 
 
 1 7.;0. The statutory provision (Code, § 3790) 
 that Ijhe county shall be liable for costs in 
 criminal cases where the prosecution fails 
 does not render the county liable for costs in 
 a bastardy proceeding, such proceeding being 
 civil and not criminal : MeAndrew v. Madison 
 County, 67-54. 
 
 1 73 1. For stationery used in taking down 
 minutes of evidence on preliminary exami- 
 nation, a justice of the peace is entitled to be 
 reimbursed by the county: Evans v. Story 
 County, 35-136. 
 
 1 733. The magistrate, or person appointed 
 by him, cannot recover from the county fees 
 for taking down minutes of evidence on pre- 
 liminary examinations. The fees of the mag- 
 istrate authorized in such cases are intended 
 to be in full compensation for his services : 
 Sanford v. Lee County, 49-148. 
 
 1733. Where a justice of the peace dis- 
 misses a criminal prosecution for failure of 
 the prosecuting witness to appear, the costs, 
 including witness fees, may properly be 
 taxed to the county, unless the justice has 
 ground for taxing them against the prosecut- 
 ing witness: Cassidy v. Palo Alto County, 
 58-125; Palo Alto County v. Monorief, 58-131. 
 
 1 73i. Where the county fails to pay the 
 costs properly taxed against it, action may 
 be brought therefor: Cassidy v. Palo Alto 
 County, 58-125. 
 
 1735. Witness fees: The county is liable 
 for fees of witnesses on preliminary exami- 
 nation: Johnson County v. Porter, 4 G. 
 Gr., 79. 
 
 1 736. Under the Code of '51 there was no 
 provision giving a witness summoned for 
 defendant in a criminal prosecution the 
 right of claiming witness fees from the 
 county treasurer, and in such case it was 
 held that he must look to the party summon- 
 ing him for his fees: Donnelly v. Johnson 
 County, 7-419. 
 
 1737. A witness summoned to attend in 
 several state cases is entitled to compensa- 
 tion for his actual attendance in all the cases, 
 but cannot recover fees for each separate 
 case, where he is required to attend in more 
 than one at the same time : Hardin v. Polk 
 County, 39-661. 
 
 1738. A witness is not entitled to fees for 
 the time during which he is confined in jail 
 on commitment by a magistrate for failure 
 to give security to appear in the case against 
 a defendant who is bound over : MarkweU v. 
 Warren County, 53-422. 
 
 1 73U. Under the provisions of Code, § S818, 
 as amended, providing that witnesses for the 
 defense shall not be subpoenaed at the ex- 
 pense of the county in criminal cases except 
 upon order of the court or judge, and only 
 upon a satisfactory showing that they are mar 
 terial and necessary for the defense, the 
 county is not liable for the fees of defendant's 
 witnesses in a criminal case before a justice 
 of the peace, unless they have been subpoe- 
 naed upon order of the justice as thus pro- 
 vided : Kennedy v. Delaware County, 59-123. 
 
 1740. This provision in regard to requiring 
 the court to make an order for subpoenaing 
 witnesses for defendant does not affect the 
 right of a witness not subpoenaed to his fees, 
 if he attends as a witness in. the trial of the 
 case, and his evidence is material for the de- 
 fense : Jones County v. Linn County, 68-63. 
 
 1 741 . It is not necessary under this provis- 
 ion, in order to authorize a district judge to 
 order the payment of witness fees to wit- 
 nesses who have attended and testified for 
 defendant without being subpoenaed, that 
 such an order should be made upon a show- 
 ing or application by the accused : Ibid. 
 
 1 743. An order of the judge can be made 
 when judgment is finally entered or when 
 such order is made or action had as disposes 
 of the case: Ihid. 
 
 1 743. JJeld not error to refuse an order 
 for all the witnesses asked for defendant 
 upon the showing made in a particular case : 
 State V. Benge, 61-658. 
 
 1744. A witness for the prosecution who 
 comes from another state at the request of 
 the prosecution, and testifies in a ca.se in 
 which defendant is adjudged not guilty, 
 should be compensated by the county for 
 his mileage outside of as well as within the 
 state : Westfall v. Madison County, 62-497. 
 
 1745. Jury fees: The provisions of Code, 
 § 3812, authorizing a jury fee to be taxed as 
 part of the costs in both civil and criminal 
 cases, is not unconstitutional: State v. Ver- 
 wayne, 44-621. 
 
 1746. The full jury fee for one day's trial 
 
CRIMINAL LAW, III, 17, 18; IV. 
 
 521 
 
 Costs. — Pardons. — Procedure in inferior courts. 
 
 may be taxed, though the trial occupies but 
 part of a day, at least where it does not ap- 
 pear that there was any other jury trial on 
 the same day : Ibid. 
 
 1747. Tliis provision for charging litigants 
 with part of the expense of jury trials is not 
 intended to limit the amount to be paid by 
 a county from which change of venue in a 
 criminal case is taken, for the fees of jurors 
 in the trial of such case ; and recovery may 
 be had for the entire jury fee, and not simply 
 for the portion authorized to be taxed as 
 costs in the case: Jones County v. Linn 
 County, 68-68. 
 
 As to taxing jury fees in civil cases, see 
 Practice, §11, 
 
 1748. Taxing: costs to prosecutor: The 
 court has the authority to tax costs to the 
 prosecutor, and it will be presumed that such 
 authority is correctly exercised, in the ab- 
 sence of a showing to the contrary : State v. 
 Donnell, 11-453. 
 
 174:9. A party considering himself ag- 
 grieved by the action of the court must have 
 the evidence on which the court acted pre- 
 Bented to the supreme court on appeal, in 
 order to secure a review of such action: 
 Ibid. 
 
 1 750. The mere failure of a private prose- 
 cutor to appear in the district court to prose- 
 cute a party put under bonds to keep the 
 peace will not warrant judgment against the 
 prosecutor for costs: State v. Holliday, 33- 
 397. 
 
 As to appeal from the judgment of a jus- 
 tice of the peace taxing the costs of a prose- 
 cution to the prosecuting witness, see infra, 
 §§ 1804-1808. 
 
 1751. Costs not remitted by pardon : The 
 costs in a criminal prosecution taxed to de- 
 fendant are not affected by a general pardon 
 discharging defendant from the fine and a 
 judgment of imprisonment: Estep v. Lacy, 
 85-419. 
 
 1752. Payment of fine: The fact that de- 
 fendant in a criminal prosecution pays the 
 fine assessed against him, and is discharged 
 from imprisonment for its non-payment, 
 does not release the judgment against him 
 for costs : State v. Gray, 35-503 ; Gray v. Fer- 
 reby, 86-146. 
 
 1753. Liability of county on cliaiige of 
 Tenue: The provisions of Code, § 3841, that. 
 
 in case of change of venue, the county from 
 which the case is taken shall be liable to the 
 county in which it is tried for the costs of 
 such trial, does not apply where one county 
 takes original jurisdiction of a crime com- 
 mitted in an adjoining county but within 
 five hundred yards of the boundary line be- 
 tween them: Floyd County v. Cerro Oordo 
 County, 47-186. 
 
 1 754. In such case the county from which 
 the case is removed is liable to the county 
 wherein the trial is had for all the costs and 
 expenses of the trial of the case, and not 
 merely for the costs which may be taxed 
 against accused in case of conviction : Jones 
 County V. Ldnn County, 68-63. 
 
 18. Pardons. 
 
 1755. A pardon does not operate to dis- 
 charge the convict from the payment of costs 
 adjudged against him on his trial : Estep v. 
 Lacy, 35-419. 
 
 1756. The governor may grant a pardon 
 upon conditions; and where one condition 
 was that he might revoke it upon such show- 
 ing as he might deem sufficient, Jield, that 
 the person pardoned could not claim a judi- 
 cial investigation as to whether he had vio- 
 lated the condition: Arthur v. Craig, 48- 
 264. 
 
 IV. Peocedtjee in ineeeioe couets. 
 
 1757. Jurisdiction: The district court has 
 concurrent jurisdiction with that of justices 
 of the peace over crimes within the jurisdic- 
 tion of the latter, and therefore a defendant 
 put on trial in the district court on indict- 
 ment may be convicted of a lower degi-ee of 
 the offense or of a crime necessarily included 
 within tlie offense charged, although such 
 lower degree or included crime is not in itself 
 indictable, and could have been prosecuted 
 before a justice of the peace : Orton v. State, 
 4G. Gr., 140. 
 
 1758. Where there is nothing appearing 
 affirmatively on the face of the proceedings 
 before a justice of the peace showing a want 
 of jurisdiction, defendant cannot complain 
 that the evidence shows an offense to have 
 been committed which can only be prosecuted 
 on indictment: State v. Sipult, 17-575. 
 
522 
 
 CRIMINAL LAW, rv. 
 
 Procedure in inferior courts. 
 
 1 759. A justice of the peace has jurisdic- 
 tion over offenses consisting in the violation 
 of city ordinances. The jurisdiction of the 
 mayor in such cases is not exclusive : Jaquith 
 V. Eoyce, 42-406. 
 
 1700. Veil lie: To show that the case is 
 within the territorial jurisdiction of a jus- 
 tice, the prosecution need only prove that the 
 offense was committed in the county. The 
 township where it was committed is imma- 
 terial : State v. Gibson, 29-295. 
 
 1761. Where defendant is brought before 
 a justice of the peace of the proper county 
 upon a warrant issued by another justice for 
 an offense triable by a justice of the peace, 
 and makes no objection to the jurisdiction, 
 he thereby w.dves any objection which he 
 may have on that account, and cannot raise 
 it upon appeal : State v. Kinney, 41-424. 
 
 1762. Information: Under the statutory 
 provisions as to the form of an information, 
 the facts constituting the offense should be 
 stated with as much precision as in an indict- 
 ment: State V. Bitman, 13-485; State v. 
 Allen, 32-491. 
 
 1 76'). Under a statute prohibiting the sell- 
 ing of intoxicating liquor to any person, held, 
 that an information charging such sale should 
 state the name of the person to whom the 
 liquor was sold, and that a mere allegation 
 that defendant " did sell intoxicating liquors 
 in violation of," etc., was not sufficient: 
 State V. Allen. 32-491. 
 
 1764. Where an ordinance prohibited the 
 sale of beer or wine to any person, an in- 
 formation for the violation of such ordinance 
 charging the sale to "divers persons" was 
 held sufficient : State v. Smouse, 49-634. 
 
 1765. An information charging the selling 
 of intoxicating liquor, without specifying 
 the kind, is sufficient: State v. Whalen, 54- 
 753. 
 
 176!i. It is not sufficient in an information 
 to charge the offense by its technical name ; 
 the acts constituting the offense must be 
 stated : State v. Murray, 41-580. 
 
 1767. Therefore, held, that in an informa- 
 tion for an assault it was not sufficient to 
 charge simply that defendant "did assault" 
 the person injured : Ibid. 
 
 1 768. An information charging larceny, 
 held defective in failing to allege that it was 
 feloniously committed, although the accusa- 
 
 tion was in the language of the statute 
 defining the offense: State v. Sipult, 17- 
 575. 
 
 1769. Where an information for violation 
 of an ordinance was headed "State of Iowa, 
 City of Washington, versus," etc., held, that 
 the words " State of Iowa " were surplusage 
 and did not make the prosecution one under 
 the state law : State v. Smouse, 49-634. 
 
 1770. Where an information charges an 
 offense of which the court has jurisdiction, 
 and also one of which it has not, the allega- 
 tions as to the latter will be deemed surplus- 
 age and will not vitiate the information: 
 Ibid. ; State v. Silhoffer, 48-283. 
 
 1771. An information charging the illegal 
 sale of intoxicating liquors need not specify 
 the quantity sold : State v. King, 37-462. 
 
 1 7 72. Where the information charging the 
 keeping of intoxicating liquors for sale was 
 entitled "State of Iowa. Clayton County," 
 and stated the liquors to be in defendant's 
 saloon in Strawberry Point, held, that the 
 information sufficiently showed that the liq- 
 uors were in Clayton county ; State v. Tliomp- 
 son, 44-399. 
 
 Further as to sufficiency of an information 
 charging the illegal sale, or keeping for sale, 
 of Intoxicating Liquoes, see that title, 
 gg 83-96. 
 
 1773. If the prosecutor subscribes and 
 swears to the affidavit at the end of the in- 
 formation, this is a sufficient compliance with 
 the provision requiring the information to 
 be subscribed and sworn to : Devine v. State, 
 4-443. 
 
 1774. Amendment of infonnalion: An 
 information is amendable, and in this respect 
 it stands upon different grounds from an in- 
 dictment : State v. Merchant, 38-375. 
 
 1 775. Therefore, held, that an information 
 defective in not being signed, although ap- 
 pearing to have been properly sworn to, 
 might be amended by adding' the signature 
 of the informant while the case was pending 
 on appeal in the district court: Ibid. 
 
 1776. An information maybe amended, 
 upon application, to any extent consistent 
 with the orderly conduct of judicial busi- 
 ness with public interest and private rights: 
 State V. Doe, 50-541. 
 
 1777. Procednre: In summary proceed- 
 ings the cases are to be conducted promptlj 
 
CRIMINAL LAW, IV. 
 
 523 
 
 Procedure in inferior courts. 
 
 and without unnecessaiy form : Dubuque v. 
 Eebman, 1-444. 
 
 1778. Change of venue: Prejudice of a 
 justice against a defendant can only be taken 
 advantage of by motion for change of venue: 
 Foreman V. Hunter, 59-550. 
 
 1779. The objections specified by statute 
 (Code, § 4071), that may be urged against the 
 next nearest justice to which the case would 
 otherwise be sent, are not the same as those 
 which are made a ground for change of 
 venue in the first place. Prejudice of the 
 justice is a ground for asking a change of 
 venue, but not a ground for objection to the 
 next nearest justice: Albei'tson v. Kriech- 
 baum, 65-11. 
 
 1 780. Where defendant, in asking a change 
 of venue, urges objections to a justice to 
 whom the case might be sent, and thereby 
 procures it to be sent to another justice, he 
 •cannot afterwards object that the justice to 
 whom it is sent has not jurisdiction, for the 
 reason that the objection made to the nearest 
 justice was not one authorized by statute, as 
 a ground for not sending the case to him. 
 By requesting the change to the justice be- 
 fore whom the case is taken, and appearing 
 before him, defendant waives any objection 
 to his jurisdiction : State v. McEvoy, 68-355. 
 
 17S1. Where the justice to whom the case 
 is sent on change of venue refuses to act, 
 the officer having the defendant in charge 
 bas no authority to take him before another 
 justice, and any action of such justice in the 
 matter would be void : Connell v. Stetson, 
 33-147. 
 
 1 783. The provisions as to change of venue 
 from a justice of the peace do not entitle a 
 defendant to change of venue in a trial in 
 the police court: Zelle v. Mclienry, 51-572. 
 
 1783. Jury trial: Where the police judge 
 of a city is exercising the powers and juris- 
 diction of a justice of the peace, a defend- 
 ant on trial before him may demand a jury 
 as provided in case of trials before justices, 
 but in a prosecution before such judge for 
 the violation of a city ordinance, defendant 
 ia not entitled to a jury trial : Ibid. 
 
 1784. A justice of the peace has no au- 
 thority to try a prisoner without a jury after 
 he has demanded a jury trial: Dupont v. 
 Douming, 6-172. ■ 
 
 1 783. A judgment rendered upon a verdict 
 
 by a disqualified jury is erroneous but not 
 void. It may be reversed upon appeal, but 
 cannot be disregarded as a nullity : Foreman 
 V. Hunter, 59-550. 
 
 1786. Appeals: In order to secure an ap- 
 peal, notice thereof must be given at the 
 time judgment is rendered : State v. Knapf, 
 61-522. 
 
 1787. If defendant gives proper notice of 
 appeal there is nothing which the justice can 
 do which will depj-ive the party of his right 
 to such appeal, and therefore the justice can- 
 not be liable in damages for refusing an 
 appeal, or committing the party without ap- 
 peal, whatever may be his motives : Ander- 
 son V. Park, 57-69. 
 
 1788. The fact that the justice fafls to in- 
 form defendant of his right to appeal, or fails 
 to make an entry of the fact on his docket, 
 does not render the conviction void. The 
 defendant may have the amount of bail fixed 
 in a habeas corpus proceeding, but is not en- 
 titled to be discharged without bail : Jacoby 
 V. Waddell, 61-247. 
 
 1789. Mere mistake or inadvertence will 
 not excuse the failure to take an appeal at 
 the time of judgment, and render an appeal 
 after wai-ds taken proper: Cook v. United 
 States, 1 G. Gr., 89. 
 
 1 790. The mere filing of an appeal bond 
 does not effect the appeal ; it must be taken 
 by giving notice, and if not so taken the case 
 may be stricken from the docket of the dis- 
 trict court : State v. Leyden, 13-4D3. 
 
 1 791. There is no provision for a review of 
 errors of law only, in a criminal case tried be- 
 fore a justice of the peace. The provisions as 
 to writs of error in civil cases are not applica- 
 ble in criminal prosecutions: Part of Lot, 
 etc.,v. State, 1-507; State v. Flinn, 51-133. 
 
 1792. Provisions as to appeal to the dis- 
 trict court are applicable to trials before a 
 mayor for violation of a city ordinance: 
 State V. Hoag, 46-337. 
 
 1793. The provision of the Revision 
 (§ 5094) allowing an appeal by the prosecu- 
 tion vi-as hejd unconstitutional so far as it 
 authorized a re-trial in the district court of a 
 defendant acquitted before a justice having 
 jurisdiction of the offense: State v. Van 
 Horton, 26^02. 
 
 1794. But under such provision it was 
 held that where defv ni^ant pleaded guilty the 
 
624 
 
 CRIMINAL LAW, IV — DAMAGES. 
 
 Procedure in iuferior courts. 
 
 state might appeal from the judgment upon 
 such plea, and in the district court inquiiy 
 might be made into the circumstances in 
 order to settle the amount of fine or punish- 
 ment, especially where the plea and judg- 
 ment were entered in the absence of prose- 
 cutor and before the day fixed for trial: 
 State V. Tait, 33-140. 
 
 1 795. The receipt of the fine in such case 
 by the county treasurer was held not such 
 an acceptance of the adjudication as to bar 
 all right of appeal by the prosecution : Ihid. 
 
 1798. If no plea is entered of record by 
 the justice of the peace, it may be entered by 
 the district court on the trial of the appeal : 
 State V. McCombs, 13-426. 
 
 1 797. An appeal waives any irregularities 
 in the proceedings before the justice : Ibid. 
 
 1798. A defendant who has pleaded guilty 
 before the justice, and been sentenced upon 
 Buch plea, may, on appeal, withdraw the plea 
 as provided in Code, § 4363, with reference to 
 proceedings upon an indictment: State v. 
 Kraft, 10-380. 
 
 1 799. An appeal brings up the case on its 
 merits. There is no method by which de- 
 fendant may secure a review of errors of law 
 only : State v. Flinn, 51-138. 
 
 1800. Where, upon the trial before the 
 justice, two of the counts of the information 
 were withdrawn and defendant was con- 
 victed on a third, held, that it was error, on 
 an appeal to the district court, to convict de- 
 fendant on the two counts which had been 
 withdrawn before the justice: State v. Shil- 
 ling, 10^106. 
 
 1801. Where defendant was tried before a 
 justice upon an information containing sev- 
 eral counts, and was found guUty and sen- 
 tenced for one offense, held, that on appeal 
 he was subject to re-trial upon all the counts, 
 and ceuld not insist upon having been ac- 
 quitted as to any of them : State v. Mailing, 
 11-339. 
 
 1802. An appeal brings the case into the 
 district court for trial on its merits, and the 
 court should disregard all merely technical 
 errors or defects not prejudicing the sub- 
 stantial rights of the parties, such, for in- 
 stance, as that upon change of venue the 
 case was sent to the wrong justice : State v. 
 McEvoy, 68-355. 
 
 1803. Defendant cannot, upon trial of an 
 
 appeal in the district court, have the cause 
 remanded to the lower court in which it was 
 tried, with directions for further proceedings 
 therein : Ottumwa v. Schaub, 53-515. 
 
 1804. An appeal by a prosecuting wit- 
 ness from the action of a justice of the peace 
 in taxing to him the costs of the prosecution 
 in case of defendant's acquittal must be 
 taken at the time judgment is rendered, and 
 cannot be taken afterwards: State v. Knapf, 
 61-533. 
 
 1 805. Such appeal is to" be taken to the 
 district court, and is a criminal proceeding; 
 Ibid. 
 
 1806. The justice is invested with dis- 
 cretion as to the taxation of costs to the 
 prosecutor, and his conclusion cannot be re- 
 versed by the district court unless he has 
 abused such discretion. While the proceed- 
 ing in the district court is called an appeal, it 
 is in fact a writ of error, and the correctness 
 of the judgment of the justice is to be deter- 
 mined by an inspection of the record. New 
 or additional evidence should not be intro- 
 duced : State v. Kerns, 64^306. 
 
 1 80 7. Under the provisions of the Revision 
 which allowed appeals by the state, held, 
 that although the justice did not tax up the 
 costs to the prosecuting witness, the district 
 court might, on appeal, make such taxation 
 without taking further evidence than that 
 introduced on the trial, provided that was 
 in itself suflScient to authorize its action: 
 In re Trenchard, 16-53. 
 
 1808. Also, held, that where the judgment 
 was for defendant, the prosecuting witness 
 might appeal from an order of the justice 
 taxing to him the costs of prosecution: State 
 V. Roney, 37-30. 
 
 DAMAGES. 
 
 I. What recoverable. 
 
 a. In general. 
 
 b. Proximate and remote. 
 
 c. General and special. 
 
 d. Pain, suffering and mental a«- 
 
 guish. 
 
 e. Profits, 
 t. Interest. 
 
 g. Continuing damage; successive ac- 
 tions. 
 
DAMAGES, I. a, b. 
 
 525 
 
 What recoverable. — In general. — Proximate and remote. 
 
 I. What recoverable ^continued. 
 
 h. Joint damages; contribution to 
 
 damages. 
 i. Duty of party injured to prevent 
 damage resulting. 
 n. Measttre of, damages. 
 
 a. In general. 
 
 b. Measure of value. 
 
 c. For breach of contract. 
 
 d. In sales of land. 
 
 e. In sales of personal property, 
 t. In actions for tort in general. 
 g. In actions for personal injury. 
 
 In particular cases, see Attach- 
 ment, IX, f ; Replevin, §§ 138-141 ; 
 Conveyances, V, c ; Vendors, gg 53- 
 56, 104-113. 
 nr. Exemplary damages. 
 rv. Nominal damages. 
 v. Lkjuidated damages; penalty. 
 
 As to survival of action for damages, see 
 Actions, IV. 
 
 Damages from cattle, see Animals. 
 
 Pleading damages, see Pleadings, §g 110- 
 127, 175, 176. 
 
 1. What eecoveeablb. 
 
 a. Jh general, 
 
 1. Cases without a remedy: The law does 
 not undertake to give a remedy for every 
 injury. This is often so where the injury is 
 slight and the damage not easily measured, 
 and where an attempt to give a remedy 
 would probably result in extensive litigation 
 in matters of public concern : Morgan v. Des 
 Moines <& St. L. R. Co., 64-589. 
 
 2. The rightful and bona fide exercise of a 
 lawful power or authority cannot afford a 
 basis for an action. If the power or right is 
 exercised carelessly, negligently, wrongfully, 
 or improperly (it may be maliciously), the 
 party so exercising it may be liable to respond 
 in damages for any injury, direct or conse- 
 quential, resulting to another from his ex- 
 ercising the right or power ; but such liability 
 can only arise upon and for the manner of 
 doing it and not for the act itself : Slatten v. 
 Des Moines Valley M. Co., 29-148. 
 
 3. Therefore, held, that where a landlord, 
 who was the owner of a lot adjoining the 
 premises leased to his tenant, made exca- 
 vations on such lot, by reason of which the 
 
 occupation of the basement stoiy of the leased 
 premises was rendered impossible by reason 
 of the lower temperature thus caused, and 
 there was no negligence in the prosecution 
 of the work, the landlord was not liable 
 to the tenant for damages: McMillin v. 
 Staples, 36-533. 
 
 4. Where defendant, being drafted into the 
 military service, fled the country and secreted 
 himself, whereby plaintiff, who had been 
 drafted as one of a class of alternates, was 
 compelled to render military service, Tteld, 
 that plaintiff could not recover from defend- 
 ant damages for the breach of public duty by 
 the latter thus resulting to plaintiff's injury: 
 Dennis v. Larkin, 19-434. 
 
 5. Impossible act; penally: The law re- 
 quires of no one impossibilities and will not 
 impose upon him a penalty for not doing an 
 act required by law, if, in the exercise of rea- 
 sonable care and diligence, he cannot do it : 
 Robinson v. Hamilton, 60-134. 
 
 6. Physician's returns: Therefore, held, 
 that the law requiring returns by physicians 
 and surgeons to the clerks of the courts was 
 not to be construed as requiring an impossi- 
 bility, and that, under such circumstances, a 
 failure to make return as requued would 
 not subject the person so failing to the pen- 
 alty prescribed by law : Ibid. 
 
 7. Penalty does not preclude damages: 
 The fact that a penalty is attached to the 
 doing of an act recoverable by the party in- 
 jured does not deprive him of the right to 
 an action for damages sustained from the 
 same act: Fuller v. Chicago & N. W. R. Co., 
 31-187. 
 
 b. Proximate and remote. 
 
 8. Immediate consequences: Where act- 
 ual damages only are allowable, they must 
 be restricted to the immediate consequences 
 of the wrongful act: Plumb v. Woodmansee 
 84-116. 
 
 9. Special circumstances of one of the 
 parties to a contract increasing the damages 
 which he suffers from a breach thereof can- 
 not be taken into consideration in estimating 
 the damages unless the facts were known 
 to the other party at the time of entering 
 into the contract : Griffith v. Burden, 35-138. 
 
 10. Proximate result: The damage to 
 be recovered must be the proximate conse- 
 
526 
 
 DAMAGES, I, b. 
 
 Proximate and remote. 
 
 quence that follows the act and not a second- 
 ary result from a first consequence, either 
 alone or in combination with other cii-cum- 
 Btances: Dvbuque Wood, etc., Ass'n v. Du- 
 Inique, 30-176. 
 
 11. Therefore, held, that where a bridge, 
 leading from a city to a river landing on 
 which wood was piled to be sold, was so out 
 of repair that the owner was thereby pre- 
 vented from removing the wood from the 
 landing until it was swept away by a flood, 
 neither the city nor the county were liable 
 for the value of the wood thus lost: Ibid, 
 
 12. Held, also, that the expense of defend- 
 ing an action for divorce was not a proper 
 element of damage in an action for the speak- 
 ing of slanderous words charging larceny and 
 adultery, for the reason that an action for 
 divorce was not the proximate consequence 
 of such a charge. A rule of law must not be 
 adduced from what might follow in excep- 
 tional oases, but only from what is likely to 
 follow under ordinary circumstances : Georgia 
 V. Kepford, 45-48. 
 
 13. The averment in an action for malicious 
 prosecution that by reason of such prosecution 
 the wife of the plaintiff became " sick, nerv- 
 ous, insane and utterly helpless," held not to 
 show special damage for which plaintiff could 
 recover in such an action, such damages 
 being too remote : Hampton v. Jones, 58-317. 
 
 14. Where the plaintiff sought to recover 
 for injuries received from being run over by 
 a railway engine, the injury having been 
 caused by the movement of the engine, held, 
 that the railway company could not be held 
 liable for illegally allowing its engines and 
 cars to stand upon tracks in the city where it 
 had no privilege to allow them to stand, the 
 injurj' alleged not being the proximate result 
 of such illegal act : Armil v. Chicago, B. & 
 Q. R. Co., 70 . 
 
 15. Kemute: Under a claim for damages 
 for failure to build a barge according to con- 
 tract, held, that the person furnishing the 
 barge was not liable for damages to a cargo 
 shipped therein by the owner, nor for depre- 
 ciu,tion in price due to the decline in the 
 market to which the owner was subject by 
 reason of the failure of the builder to f ui-nish 
 the barge by the time agreed upon : Davis v. 
 Fish, 1 G. Gr., 406. 
 
 16. Expenses incurred in soliciting sub- 
 
 scriptions and advertisements and making 
 contracts for a newspaper of a particular size 
 cannot be considered as elements of damage 
 in an action for failure to furnish a printing 
 press, according to contract, suitable for a 
 newspaper of such size : Allison v. Vaughan, 
 40-421. 
 
 17. In an action for damages for failure to 
 deliver personal property contracted for, the 
 value of the article in the market, as an ele- 
 ment of damage, may be ascertained by con- 
 sidering the condition of the market, the 
 time of delivery, the demand and supply, 
 etc.; but the probable consequences which 
 would have resulted on the market, had the 
 party claiming damages gone into the mar- 
 ket, on the day of delivei'y, to buj' the arti- 
 cles in default, to be delivered at once, are 
 too remote and speculative to be considered : 
 Jemmison v. Oray, 29-537. 
 
 18. Where two parties agreed to erect 
 buildings on their respective lots, held, that 
 failure of one to comply with such contract 
 did not give rise to a cause of action in favor 
 of the other, it not appearing that the plaint- 
 iff would have built elsewhere but for such 
 contract: First Nat. Bank v. Thurman, 69- 
 693. 
 
 19. In an action to recover damages for 
 furnishing an abstract of title which was 
 erroneous in stating the date of a sale thereof 
 under execution, by reason of which error it 
 was alleged plaintiff had been unable to re- 
 deem from such sale until the period for 
 redemption had expired, held, that plaintiff 
 could not recover without proof of reason- 
 able effort to redeem after the discovery of 
 the mistake : Roberts v. Leon Loan, etc., Co., 
 69-678: 8. C, 63-76. 
 
 20. Where plaintiff sought to recover the 
 value of a set of the copies of a newspaper 
 of which he was editor, held, that proof of 
 the inconveniences which an editor would 
 suffer and the various modes by which he 
 might be damaged by reason of the destruc- 
 tion of the files of a newspaper which he 
 had edited were too remote to be considered : 
 Leffingwell v. Oilchrist, 40-416. 
 
 21. Where, through the failure of vendor 
 to extinguish a lien upon the property sold, it 
 was seized under judicial process and taken 
 from the possession of the vendee and there- 
 after destroyed by fire, held, that the vend- 
 
DAMAGES, I, b. 
 
 527 
 
 Proximate and remote. 
 
 or's negligence was not the proximate cause 
 of the destruction, even if it could be said 
 that such destruction was the result of the 
 seizure: Harper v. Dotson, 43-233. 
 
 22. In an action against a mortgagee for 
 damages for interfering with the pu blio sale 
 of mortgaged property by announcing that 
 the purchaser would buy a la;w-suit, etc. , held, 
 that as the mortgage was of record, and the 
 mortgagee's assent to the sale was not neces- 
 sary, a purchaser intending to bid an amount 
 largely in excess of the incumbrance could 
 not have been influenced by such threats if 
 made : McCoy v. First Nat. Bank, 50-577. 
 
 23. Plaintiff's property being situated on 
 the opposite side of the street from a river, 
 and the defendant having built its railroad 
 tracks between the street and the river upon 
 land made by filling, held, that the fact that 
 the existence of said tracks hindered the fire 
 company in getting access to the river for 
 procuring water to extinguish the fire, by 
 reason of which fire plaintiff's property was 
 destroyed, did not render the defendant liable 
 for the injury arising: Bosch v. Burlington 
 &M. R. R. Co., 4'M:02. 
 
 24. Injury to credit: In the absence of 
 proof of abuse of process, injury to credit 
 cannot be an element of damage from an un- 
 lawful seizure made under such process: 
 Thomas v. Isett, 1 G. Gr., 470. 
 
 And further as to injury to credit, see At- 
 tachment, g 391. 
 
 25. Accii!eiit from previous accident: In 
 an action against a railway company for 
 damages resulting from an accident to a 
 party who had been injured by a previous 
 accident and whose arm was still disabled 
 thereby, held, that it would not have been 
 proper to instruct the jury that plaintiff 
 could not recover if the jury should find that 
 ne would not have been injured if his arm 
 had been sound and well : Allison v. Chicago 
 &N. W. R. Co., i'Sr-^tL 
 
 26. Brfacli of contract: Where plaintiffs 
 had agreed to furnish defendant certain 
 doors, sash, etc., on or about a certain date 
 but failed to do so, whereby a building for 
 which defendant had agreed to furnish such 
 material by that date was delayed in its 
 completion and other expenses rendered 
 necessary, held, that, as plaintiffs were not 
 advised of the purpose for which defendant 
 
 was purchasing the material, and as time was 
 not of the essence of the contract, defendants 
 could not recover from plaintiffs the amount 
 for which they might be liable to the owner 
 of the building: Mihills Mfg. Co. v. Day,. 
 50-250. 
 
 27. In an action for breach of contract to 
 thresh gi-ain upon specified notice, held, that 
 damages on account of injury to the grain 
 and labor and expenses in taking care of it, 
 caused by failure to perform the contract 
 after notice, were too remote and not the 
 proximate consequences of the breach of con- 
 tract : Prosser v. Jones, 41-674. 
 
 28. Where plaintiff sought to recover on a 
 contract of hiring, and defendant sought to 
 set off damages resulting from breach of such 
 contract on the part of plaintiff in not com- 
 pleting the term of service contracted for, 
 held, that damages from the weather to hay 
 which was not cared for by reason of plaint- 
 iff's quitting work, were too remote to be 
 estimated in behalf of defendant: Riech v. 
 Bolch, 68-526. 
 
 29. In cases of contract, the party in fault 
 by reason of breach thereof is responsible 
 for such consequences of his failure as must 
 have been contemplated by the parties when 
 they entered into the agreement, even though 
 they are the immediate result of intermedi- 
 ate causes. Therefore, where a contract was 
 made by the agent of a common carrier that 
 potatoes delivered for shipment should be 
 shipped at a specified date, there being dan- 
 ger that, if not shipped by that date, they 
 would, in the ordinary course of nature, be 
 liable to damage from freezing, held, that it 
 would be presumed that the parties had such 
 damage in consideration and intended to 
 guard against it by entering into the con- 
 tract, and that the potatoes being frozen by 
 reason of delay in furnishing transportation 
 until after the time fixed, the carrier was 
 liable for such damages: Wood v. Chicago, 
 M.&St. P.R. Co., 68-491. 
 
 Further as to what elements of damage 
 are too remote to be considered, see infra, II. 
 
 30. Failure to repair: In an action for 
 damages for failure of defendant to perform 
 the covenants of his lease of a grist-mill in 
 regard to repairing the dam and keepiag the 
 same in order, held, that the true rule of 
 damages was the difference in rental value 
 
528 
 
 DAMAGES, I, b, c. 
 
 Proximate and remote. — General and special. 
 
 between the mill in its condition and its 
 value if it had been kept in the condition re- 
 quired in the covenants, and that damages 
 by reason of being obliged to run the mill in 
 the night-time and at additional expense, 
 and by reason of the loss of business occa- 
 sioned by inability to perform the full 
 amount of work, etc. , were too remote to be 
 considered: Winnev. Kelley, 34^339. 
 
 J51. Sale of diseased animals: One who 
 sells sheep affected with foot-rot and scab 
 and falsely represents them to be free from 
 such diseases is liable in damages for inju- 
 ries to other sheep owned by the purchaser 
 cause.i by said diseases imparted fi-om the un- 
 sound sheep, although the vendor did not 
 know at the time of sale that the purchaser 
 had other sheep: Sherrod v. Langdon, 21- 
 518. 
 
 32. Market reports: Where a telegraph 
 company was under obligation to furnish 
 correct reports of the Chicago markets to a 
 grain dealer in a distant place, held, that 
 damages resulting to such dealer from the 
 purchase of grain in Chicago made by tele- 
 gram in reliance upon an incon-ect report 
 furnished by the company, might be i-ecov- 
 ered although the company was not advised 
 that such dealer was in the habit of making 
 such purchases: Turner v. Hawkeye Tel. Co., 
 41-458. 
 
 33. Frightening of horse by do^: Where 
 plaintiff sought to recover damages for in- 
 juries sustained by reason of his horse being 
 frightened by defendant's dog, held, that it 
 was suflScient if it was shown that the dog 
 ran after and barked at defendant's horse, al- 
 though not biting him : Schmid v. Humphrey, 
 48-653. 
 
 34. That defendant was at Ihe lime en- 
 gaiyed in doing ati act prohibited by law 
 (to wit, violating the Sunday law), held, in 
 such case, not sufficient to prevent his recov- 
 ering damages for the injury : Ibid. 
 
 35. Fire communicated: Where fire is 
 negligently communicated to one building 
 and from that to another, the damages are 
 not too remote to preclude recovery by the 
 owner of the latter building from the person 
 liable for the origin of the fire: Small v. Chi- 
 cago, R. I. & P. R. Co., 55-582. And see 
 same point in dissenting opinion: S. C, 50- 
 338, 355. 
 
 36. Cause of accident : Although the pros- 
 imate cause of the injury only can be recog- 
 nized, yet where it appeared that an engine 
 of a railway company had left the track on 
 account of a spreading of the rails, and there- 
 upon the engineer, in the exercise of his 
 judgment as to the best course to pursue un- 
 der the circumstances, reversed the lever, 
 and in doing so broke his arm, held, that the 
 train's leaving the track, being the occasion 
 for his doing the act resulting in the injury, 
 was the proximate cause of the injury, and 
 that the injury was therefore not one inci- 
 dent to his ordinary employment: Knapp v, 
 Sioux City & P. R. Co., 65-91. 
 
 87. Lifss of incidental advantage: Under 
 a contract between a railway company and 
 the owner of a warehouse for the delivery of 
 all grain of a certain description shipped over 
 the railway, and payment of a certain sum 
 per bushel for handling the same, with pro- 
 visions for additional compensation for stor- 
 age, held, that damages resulting from loss 
 of storage, caused by failure of the railroad 
 company to deliver grain as agreed, were not 
 too remote to be recovered in an action for 
 breach of the contract: Richmondv. Dubugm 
 <fc S. C. R. Co., 33-423, 501. 
 
 And see further as to loss of profits, infra, 
 I, e. 
 
 c. General and special damage. 
 
 38. Conversion; pleading: In an action 
 to recover damages for the conversion of 
 goods, plaintiff should not be allowed to re- 
 cover anything for special loss by reason of 
 being deprived of the goods, unless such 
 damage is alleged and proven: Inman v. 
 Ball, 65-54:3. 
 
 39. Personal injury ; mental pain ; plead- 
 ing: Damages for mental pain may be al- 
 lowed in an action for personal injury with- 
 out being specially pleaded, they being the 
 natural and inevitable result of such injury: 
 Oronan v. KiCkkuck, 59-18. 
 
 4:0. Oeneral damages in slander: General 
 damages are such as the law implies or pre- 
 sumes to have accrued from the slander. 
 Special damages are such as really take place 
 but are not implied by law. But whether 
 I general or special they must be the natural 
 j and proximate though not the necessary con- 
 
DAMAGES, I, d, e. 
 
 529 
 
 Pain, suffering and mental anguish. — Profits. 
 
 sequence of the act complained of: Georgia 
 V. Kepford, 45-48. 
 
 41. But desertion of a husband by his wife, 
 and the expense of defending a divorce suit 
 brought by her, are not natural and proxi- 
 mate consequences of speaking slanderous 
 words concerning her, and cannot be consid- 
 ered in computing the damages resulting 
 from such slander, in the absence of proof 
 that such results were intended : Ibid. 
 
 d. Pain, suffering and mental an- 
 guish. 
 
 42. Future suffering: While an injured 
 party is entitled to recover damages for future 
 physical suffering, even if the injury is not 
 of a permanent character, such allowance 
 must be limited to such suffering as is rea- 
 sonably certain from the evidence will occur, 
 and it is error to allow the jury to give dam- 
 ages for such as may occur : Fry i\ Dubuque 
 &S. W. n. Co., 45-416. 
 
 4.3. Mental suffering, not arising directly 
 from bodily suffering or disability, may con- 
 stitute a ground for actual damages, and the 
 jury may, in a proper case, give exemplary 
 damages: Parkhurst v. Masteller, 57-474. 
 
 44. Mental anguish arising from the nature 
 and character of an assault is an element of 
 compensatory damages in an action for such 
 assault: McKinley v. Chicago & N. W. R. 
 Co., 44-314; Imcas v. Flinn, 35-9. 
 
 4,5. Pain and suffering constitute an ele- 
 ment of compensatory damages: Reddin v. 
 Gates. 52-310. 
 
 46. So held where the pain and suffering 
 arose from actual physical injury: Ferguson 
 V. Davis County, 57-601. 
 
 Such damages may be shown without be- 
 ing specially claimed: Seatra/ra, §§ 235, 236. 
 
 47. Injury to the feelings: Although in a 
 proper case damages may be recovered as 
 compensatory for injury to the feelings, nev- 
 ertheless, lield, that threats by a conductor 
 not shown ,to be maliciously or wantonly 
 made, to eject a passenger for refusing to pay 
 an additional sum required for failure to pro- 
 cure a ticket, followed by the payment of 
 such sum by the passenger, was not sufficient 
 ground for a verdict of punitive damages 
 against a railway company, even though it 
 appeared that failure of the passenger to pro- 
 cure a ticket was due to no fault on his part 
 
 Vol. 1 — 34 
 
 but to the fault of the company: Paine v. 
 Chicago, B. I. & P. R. Co., 45-569. 
 
 48, W here plaintiff is not entitled to ex- 
 emplary damages it is error to instruct the 
 jury that they may make a liberal allowance 
 for pain and suffering, endured in conse- 
 quence of injuries complained of: Deppe v. 
 Chicago, R. I. & P. R. Co., 36-52. 
 
 49. While physical and mental suffering 
 caused by an injury are proper to be consid- 
 ered in determining the amount of damages, 
 they are not to be compensated for in the 
 ordinai-y meaning of that word; but they 
 stand as lights around the injurj' to show 
 more clearly the extent of the injury itself; 
 Collins V. Council Bhiffs, 35-433. 
 
 .50. In an action by an administrator for 
 personal injuries to intestate, damages for 
 pain and suffering or grief and distress can- 
 not be recovered : Rose v. Des Moines Valley 
 R. Co., 39-346; Donaldson v. Mississippi & 
 M. R. Co., 18-280. 
 
 51. But if the action is brought by the 
 injured party before his death, and afterward 
 his administrator is substituted, damages for 
 pain and suffering may be recovered as fuUy 
 as though the injured party had prosecuted 
 the action to a termination: Mtildovmey v. 
 Illinois Cent. R. Co., 36-463. 
 
 e. Profits. 
 
 53. Speculative not allowed: In the com- 
 putation of damages, all calculations which 
 embrace speculative profits should, so far as 
 the nature of the case will allow, be care- 
 fully excluded : Drake v. Chicago, R. I. & P. 
 R. Co., 63-303. 
 
 53. Speculation as to the possible diminu- 
 tion of business, etc. , held not admissible in 
 a particular case; First Nat. Bank v. Thur- 
 man, 69-693. 
 
 .54. Bre.ich of contract: Where a railway 
 company contracted with the owners of an 
 elevator to deliver to such elevator all through 
 grain shipped over its road, to be handled at 
 a certain rate per bushel, held, that upon re- 
 fusal of the railway company to deliver grain 
 according to contract, the owners of the ele- 
 vator were entitled to recover the profits that 
 would have resulted had the contract been 
 carried out: Richmond v. Dubuque & S. C. 
 R. Co., 33-433. 
 
 55. If the profits specified would have di- 
 
530 
 
 DAMAGES, I, e. 
 
 Profits. 
 
 rectly and certainly resulted to plaintiff, had 
 defendant performed his conti-act, then the 
 refusal to perform and the deprivation of 
 these profits is a direct injury to plaintiff, 
 damage for which is properly measured bj' 
 the amount of such profits. The fact that 
 the circumstances of the case are such that 
 the amount of damage is not susceptible 
 of being rendered absolutely certain is not 
 ground for denying the plaintiff the right to 
 recover any amount whatever: Richmond v. 
 Dubuque & S. C. R. Co., 40-264. 
 
 56. No general or uniform rule can be es- 
 tablished as to whether loss of profits is to be 
 tiken into account in computing damages. 
 The facts in each particular case must be 
 considered before a determination of that 
 question can be reached, for the reason , if no 
 other, that for breaches of contract there can 
 be no recovery of damages except such as 
 arise naturally and such as the parties may 
 reasonably be supposed to have contemplated 
 at the time the contract was entered into: 
 Gibson v. Fischer, 68-29. 
 
 .57. In actions for tort defendant should 
 respond in damages to the full extent of the 
 wrong, and in such case compensation should 
 be the rule ; but while this is so, remote dam- 
 iiges should not be allowed, but only such ae 
 are sustained or caused by the wrongful act : 
 Ibid. 
 
 58. Therefore, in an action for damages by 
 reason of back-water being tlWown from de- 
 fendant's dam upon plaintiff's dam, held, that 
 the loss of earnings and profits by reason of 
 the capacity of plaintiff's mill being lessened 
 might be shown in evidence : Ibid. 
 
 59. Expected benefits not allowed: The 
 measure of damages for breach of contract 
 to perform services is not what the benefit 
 which plaintiff would have derived from 
 such service would have been, but the actual 
 value of the services : Gantz v. Clark, 31-254. 
 
 60. The fact that plaintiff had a particular 
 contract not known to defendant, vmder 
 which he could realize from ' the property 
 contracted to be sold to him a lai-ger amount 
 ithan .the market value, cannot be considered 
 in. estimating the damage for failure to de- 
 liiver according to contract: Brown v. Allen, 
 35-306. 
 
 61. Commission on sales: Where a person 
 is>!emplcsy;ed.to-sell goods on commission and 
 
 the employer fails to furnish goods accord- 
 ing to contract, perhaps the person em- 
 ployed may recover for loss of profits which 
 he might have made if the goods had been 
 furnished, at least if the quantity to be 
 furnished was a definite amount and the 
 demand was practically unlimited ; but where 
 the territory is limited and the goods are of 
 a kind for which there is not a regular con- 
 suihption or demand, the measure of dam- 
 ages for failure to furnish goods according 
 to contract will be the loss of time caused 
 to the plaintiff, not taking into account the 
 profits which might have been made or the 
 demand for the article within the territory ; 
 Howe Machine Co. v. Bryson, 44-159. 
 
 (i2. In estimating the amount of damage.^ 
 sustained by an agent of a sewing machine 
 resulting from a breach of the contract by 
 the company to furnish machines, the value 
 of agent's time during the period of his em- 
 ployment under the contract, estimated with- 
 out reference to the profits, with reasonable 
 expenses added, less the sum actually earned 
 during the time, will be the measure of dam- 
 age: Wilson Sewing Machine Co. v. Sloav., 
 50-367. 
 
 63. In an action for damages for breach of 
 a contract, under which plaintiff was to have 
 the exclusive privilege of selling certain 
 property for defendant within certain terri- 
 tory, held, that the damage recoverable was 
 the proper proportion of the price of the 
 property sold and delivered by the defendant 
 within such territory in violation of the con- 
 tract, and should not include such proportion 
 of sales contracted in which delivery was not 
 made through fault of the vendees : Hall v. 
 Stewart, 58-681. 
 
 64. Contract to famish materials: Where 
 plaintiff and defendant entered into an agree- 
 ment by which plaintiff was to carry on the 
 cooper trade and defendant was to furnish 
 the material necessary therefor, the manu- 
 factured products to be turned over to defend- 
 ant at a certain price, it appearing from the 
 contract that one inducement thereto was 
 that plaintiff was without means of procur- 
 ing such material, held, in £in action for dam- 
 ages for failure of defendant to furnish 
 material as agreed, that plaintiff might be 
 allowed damages estimated upon the net 
 earnings of the factory if it had been kept 
 
DAMAGES, I, e, f, g. 
 
 631 
 
 Profits. — Interest. — Continuing damage. 
 
 employed, it appearing that material might 
 have been procured and furnished by defend- 
 ant: Taft V. Tiede, 55-370. 
 
 66. ProspectlTe Taliie: Failure to deliver 
 a telegraph message, by vrhich the purchase 
 of property is defeated, vfUI entitle the party 
 injured to no greater damages than the dif- 
 ference between the price of. the property as 
 it might have been bought and its market 
 value at that time. A subsequent increase in 
 value cannot be considered : Pennington, v. 
 Western Union Tel. Co., 67-631. 
 
 66. Breach of contract to supply gas: 
 Where plaintiff had entered into a contract 
 with defendant to supply the latter with gas, 
 and defendant had thereafter refused to re- 
 ceive or pay for gas under the terms of the 
 contract, and the parties then entered into an 
 agreement by which plaintiff was to have the 
 privilege of shutting off the gas until the 
 question of the validity of the contract could 
 be determined, and that no existing rights of 
 either party should be affected thereby, held, 
 that, such agreement did not preclude the 
 plaintiff from recovering for the profits which 
 would have accrued from furnishing gas un- 
 der the contract subsequent to the time of 
 making such agreement: Davenport Gas, 
 etc., Co. V. Davenport, 15-6. 
 
 67. Interference with water-power: In 
 an action for damages caused by the stoppage 
 of plaintiff's water-power mill by reason of 
 back-water from defendant's dam, held, that 
 the measure of damages was the cost of fur- 
 nishing other power to supply the power lost 
 by reason of defendant's acts, so far as was 
 necessary to manufacture all the goods that 
 could be sold at a profit, and not the profit 
 on the additional goods which might have 
 been manufactured, it not appearing that the 
 mill could have been run to its full capacity 
 at a profit: Decorah Woolen Mills Co. v. 
 Greer, 49-490. 
 
 68. But in such a case interruption in the 
 use of the mill and diminution of profits on 
 that account may be alleged and shown: 
 Gibson v. Fischer, 68-29. 
 
 f. Interest. 
 
 69. From time of loss: Where damages 
 result from breach of a contract of bailment, 
 the value of property lost becomes an indebt- 
 edness from the day of the loss, and interest 
 
 is recoverable thereon : Mote v. Chicago <& N. 
 W. R. Co., 27-39. 
 
 70. This is so where the amount of dam- 
 ages is capable of exact computation, as in the 
 case of destruction of grain of a certain grade 
 and quality : Arthur v. Chicago, R. I. <& P. 
 R. Co., 61-648. 
 
 71. In case of breach of warranty : Where 
 notes had been given for the purchase price 
 of personal property and had passed out of 
 the possession of the vendor, held, that the 
 rate of interest to be allowed on a sum recov- 
 ered for breach of warranty in such sale was 
 that borne by the notes: Pitsinowsky v. 
 Beardsley, 37-9. 
 
 73. To be estimated in thedamag'ss: In- 
 terest is a common and legitimate element 
 of damage, and in the absence of proof to 
 the contrary, it will be presumed that the 
 jury took it into consideration in computing 
 the damages resulting from false representa- 
 tions in the sale of real estate as to its loca- 
 tion and quality, when the fact of such false 
 representations is set up by defendant as a 
 counter-claim in the foreclosure of a pur- 
 chase money mortgage: McNally v. Shobe, 
 23-49. 
 
 73. In an action for iinli«(nidated dam- 
 ages interest should not be allowed eo nomine 
 and assessed as a part of the damages, but 
 may be considered as an element of damage 
 under the rule which permits its allowance 
 in order to arrive at that which will be a just 
 imd lawful compensation for the injury sus- 
 tained : Richmond v. Dubugue & 8. C. R. 
 Co., 33-423, 503. 
 
 74. While the jury in assessing damages 
 in an action for injury to property caused by 
 negligence of a railway company may in- 
 clude interest in their verdict, it is error in 
 the court to render judgment for an amount 
 additional to the verdict for the purpose of 
 including interest: Garrett v. Chicago & N. 
 W. R. Co., 36-131. 
 
 Further as to Interest, see that title. 
 
 g. Continuing damage; successive ac- 
 tions. 
 
 75. Trespass: Where there is a repetition 
 or continuation of a trespass, the recovery 
 is limited to the time of bringing suit, and a 
 fresh action will lie for the repetition or con- 
 tinuation : Close V. Samm, 37-503. 
 
332 
 
 DAMAGES, I, g, h. 
 
 Continuing damage; successive actions. — Joint damage; contribution. 
 
 76. Nuisance: Where a nuisance is of such 
 nature that its continuance is necessarily an 
 injury, and it is of a permanent character, 
 so that it will continue without change from 
 any cause but human labor, there the daixi- 
 age is an original damage and may be at 
 once fully compensated : Powers v. Council 
 Bluffs, 45-653. 
 
 77. The rule that every continuance of a 
 nuisance is a fresh nuisance, for which a new 
 action will lie, does not apply where the 
 damage arises from negligence combining 
 with a natural cause, however gradual the 
 operation of that cause, if it produces a nui- 
 sance necessarily resulting in damages : Ihid. 
 
 78. In such case successive actions are al- 
 lowable only where the defendant is con- 
 tinuously in fault : Ihid. 
 
 79. Tlierefore, held, that an action against 
 a city for the improper construction of a 
 ditch which by the action of natural forces, 
 without any interveht^ion of human agency, 
 would in time encroach upon plaintiff's land, 
 accrued at the time of the original construc- 
 tion of the ditch, although plaintiff's land 
 was not thereby immediately damaged, and 
 that the statute of limitations agairist such 
 action then commenced to nin: Ibid. 
 
 80. Where the damages sued for resulted 
 from the diversion of a stream of water on 
 plaintiff's land by defendant's railway em- 
 bankment, held, that the right of action for the 
 entire prospective damage accrued at once, 
 and having been once made the ground of 
 an action, the question was res adjudicata 
 and successive actions would not lie : Stodg- 
 hill V. Chicago, B. &• Q. R. Co., 53-341. 
 
 81. Where a party seeks to recover from a 
 city for damages from water oast upon his 
 lot by reason of the failure of the city to con- 
 struct and maintain culverts to allow the 
 spread of overflowed surface water, and the 
 insufficiency of the culverts constructed, it is 
 erroneous to allow damages on the theory 
 that the injury is permanent; but the case 
 should be tried on the theory that upon a de- 
 termination of its duty in the premises, the 
 city will put in and maintain the proper cul- 
 verts, and that if subsequent damages result 
 from its failure to do so, another action for 
 damages may be maintained : Morris v. Coun- 
 cil Bluffs, 67-343. ' 
 
 82. Apurchaser of premises cannot be held 
 
 liable to an adjoining property owner for 
 damages existing on the purchased premises 
 before the purchase, unless the nuisance is 
 one which could and should be abated and 
 the purchaser is at fault in not abating it : 
 Bizer v. Ottumira Hydraulic Power Co., 
 
 70 . 
 
 Further as to Nuisances, see that title. 
 
 83. Damages from failure to observe in- 
 junction: Where, in an action to restrain de- 
 fendant from interfering with the natural 
 flow of water in a water-course, damages 
 were asked and an injunction was granted 
 but no damages given, held, that a subse- 
 quent action for damages resulting from a 
 failure of the defendant to comply with the 
 injunction was not barred: Benson v. Con- 
 nors, 63-670. 
 
 h. Joint damage/ contribution to 
 damage. 
 
 84. Sales of intoxicating liquors: Where 
 different parties contribute by sales of intoxi- 
 cating liquors to the same person to a habit of 
 intoxication and not merely to specific acts of 
 intoxication, they are not to be considered as 
 joint wrong-doers, but as individually liable 
 for the injury occasioned by their acts re- 
 spectively, and a settlement with one will not 
 bar a right of action against another : Jewett 
 V. Wanshura, 43-574. 
 
 85. Mere successive wrongs, being the inde- 
 pendent acts of the persons doing them, wiU 
 not constitute a joint liability although the 
 wrongs may be committed against the same 
 person : La France v. Krayer, 43-143. 
 
 8G. In an action by a wife for damages for 
 wrongful sales of liquor to her husband, it is 
 error to instruct the jury that a defendant 
 who has made such sales to plaintiff's hus- 
 band, which produced or contributed to his 
 habitual intoxication, would be liable for all 
 damages sustained therefrom. One who con- 
 tributes to the formation of habits of intoxi- 
 cation is liable only for the damages caused 
 by his own act : Richmond v. Shickler, 57-486 ; 
 Ennis v. Shiley, 47-553 ; Engleken v. Webber, 
 47-558 ; Flint v. Gauer, 66-696. 
 
 87. Contribution bj party injured: The 
 fact that a wife suing to recover damages re- 
 sulting from the intoxication, of her husband, 
 caused by defendant, has given permission 
 
DAMAGES, I, i. 
 
 533 
 
 Duty of party injured to prevent damage resulting. 
 
 to the seller to supply the husband with what 
 liquor he wants, will not defeat his recovery 
 if it appeal's that such permissiSn was given 
 in the presence, and by the coercion of the 
 husband : Jewett v. Wanshura, 43-574. 
 
 8S. But she cannot recover if the intoxica- 
 tion is produced by her own acts : Engleken 
 V. Hilger, 43-563. 
 
 89. Party primarily liable: While it is a 
 general rule that no contribution can be en- 
 forced as between joint wrong-doers, yet 
 there are exceptions in cases where the law 
 looks upon parties as joint wrong-doers to 
 the injured party, while as between them- 
 selves some of them may not be wrong-doers 
 at all ; as, for instance, where a raih-oad com- 
 pany is compelled to pay damages for animals 
 injured by it which have come within its 
 fence through an opening wilfully caused by 
 a third person, the company having been 
 compelled to pay the damages, may recover 
 the damages from a, third person whose 
 wrong primarily caused the injury : Chicago 
 & N. W. R. Co. V. Dunn, 59-619. 
 
 yO. Thus a city which has been compelled 
 to pay damages to a party injured by ob- 
 structions or excavations in its streets may 
 recover from the party causing such obstruc- 
 tion or excavation : Ottumwa v. Parks, 43- 
 119; Sioux City v. Weave, 59-95. 
 
 i. Duty of party injured to prevent 
 damage resulting. 
 
 91. Ordinary care and at moderate ex- 
 pense: In case of breach of contract, if the 
 injured party can protect himself from dam- 
 age at a moderate expense and with ordinary 
 effort he is bound to do so, and he can charge 
 the delinquent party for such expense and 
 effort only and for the damages which could 
 not be prevented by the exercise of such 
 diligence: Davis v. Fish, 1 G. Gr., 406. 
 
 92. If plaintiff, by the exercise of ordinary 
 care and pradence, might have avoided or 
 diminished the damage, and failed to exer- 
 cise such care, he cannot recover for such 
 damage as the exercise of ordinary care 
 would have prevented: Little v. McQuire, 
 43-447. 
 
 93. Failure of a party to use due diligence 
 in endeavoring to save himself from injury 
 occasioned by the mistake of another will 
 
 defeat his recovery for svich mistake: Roberts 
 V. Leon Loan, ttc, Co., 63-76; S. C, 69-673. 
 
 94. Every person who has sustained an 
 injury from, the wrongful act of another is 
 bound to use a reasonable effort to limit the 
 effect of the act: Kiernan v. Heaton, 69-136. 
 
 95. One who has suffered damages in con- 
 sequence of the failure of another to perform 
 some act which he was under obligation to 
 perform is not entitled to recover therefor 
 if by the exercise of reasonable care or dili- 
 gence he might have prevented the injury : 
 Raridan v. Central Iowa R. Co., 69-037. 
 
 9C. But held, that d,efendant was not ex- 
 empted from liability for injury caused by 
 its negligence, because plaintiff did not, be- 
 fore the failure of defendant to perform the 
 duty constituting negligence, anticipate such 
 failure and make provision against the con- 
 sequences thereof: Ihid. 
 
 97. While, in general, a person cannot 
 recover for an injury which is occasioned by 
 the wrong of another, but which he might 
 have prevented by a slight expenditure of 
 labor or money, this does not apply where 
 the immediate cause of the injury is some- 
 thing which could not have been anticipateil 
 in the ordinary course of events : Copper v. 
 Dolvin, 68-757. 
 
 98. In an action against a municipal cor- 
 poration for so diverting the water of a 
 stream against plaintiff's building as to cause 
 damages, lield, that the negligence of plaint- 
 iff in not using ordinary diligence and effort 
 to prevent the damage, when it might have 
 been done at a moderate expense, constituted 
 negligence sufiScient to defeat plaintiff's 
 claim: Hoehl v. Muscatine, 57-444; Fulleam 
 V. Muscatine, 57-457. 
 
 99. In an action against a county for dam- 
 ages by reason of a defective bridge, it is 
 competent for defendant to prove that plaint- 
 iff, having knowledge of the dangerous and 
 unsafe condition of the bridge, might have 
 reached his destination by another road 
 equally convenient and safe and not defect- 
 ive : Walker v. Decatur County, 67-807. 
 
 That contributory negligence will defeat 
 recovery, see Negligence, III. 
 
 100. Breach of contract: No one should 
 be allowed to charge another for damages re- 
 sulting from his own negligence or want of 
 care. Therefoi'e, held, that where defend- 
 
534 
 
 DAMAGES, I, i. 
 
 Duty of party injured to prevent damage resulting. 
 
 ant had been guilty of a breach of contract 
 in failing to furnish a new ferry-boat by the 
 time specified in the lease of a ferry fran- 
 chise, but it also appeared that plaintiff had 
 been negligent in allowing the old boat to get 
 out of repair and sink before the new boat 
 was furnished, held, that the plaintiff could 
 not recover from defendant any damages re- 
 sulting from failure to deliver the new boat 
 in time, which might have been obviated by 
 reasonable care in keeping the old one in con- 
 dition for use ; Hansen v. Kirtley, 11-565. 
 
 101. Contract of employment: In an 
 action for the breach by employer of a con- 
 tract of employment, the employee must 
 show the exercise of diligence in obtaining 
 other employment : Muller v. Fern, 35-420. 
 
 102. Protection of property: It is the 
 duty of all persons to protect their jjroperty 
 if they can do so, and they can charge another 
 person with only such damages as result or 
 would have resulted notwithstanding such 
 efforts, and the expense of and compensation 
 for such efforts : Van Pelt v. Davenport, 43- 
 308. 
 
 103. Defects in machinery: It is the duty 
 of a party to protect himself in so far as he 
 can from loss or damage from breach of con- 
 tract, and if he knows of defects in ma- 
 chinery furnished to him under contract be- 
 fore operations are commenced with such 
 machinery, he cannot, recover damages for 
 delay, etc., caused by the defective opera- 
 tion : Nye v. Iowa City Alcohol Works, 51- 
 129. 
 
 104. Construction of building: If it can 
 be shown that one who claims damages for 
 injury which would naturally result from 
 the defect complained of in the construction 
 of a building could have protected himself 
 from damages at a moderate expense or by 
 ordinary efforts, he can recover for such ex- 
 pense and efforts only and for the damage 
 which could not be prevented by the exer- 
 cise of due diligence: Mather v. Butler 
 County, 28-353. 
 
 105. Furnishing' machinery for sale: So 
 held also in the case of a breach of a specific 
 contract to furnish machinery for sale on 
 commission: Beymer v. MoBride, 87-114. 
 
 106. Ordinary, not slight, expense and 
 diligence: That a person injured by the 
 wrongful act of another might have pre- 
 
 vented such injury by moderate expense and 
 ordinary effort will defeat his recovery for 
 the injury suffered. It is erroneous to charge 
 that he might recover unless the injury 
 could have been prevented by slight expenss 
 and slight effort : Simpson v. Keokuk, 84^-568. 
 
 107. The purchaser under false representa- 
 tions of diseased sheep cannot recover from 
 the vendor damages which he might have 
 avoided by the use of due care and skill ; but 
 held sufiicient if he used reasonable care and 
 diligence to obtain and apply such remedies 
 as the experience and knowledge of sheep 
 men in that community offered : Sherrod v. 
 Langdon, 31-518. 
 
 108. Personal injuries; care in effecting 
 cure: It is the duty of a person who has re- 
 ceived personal injury to exercise reason- 
 able care and diligence in effecting a speedy 
 and complete cure, and for injuries and 
 sufferings caused or enhanced by neglect to 
 use such care, the person injured cannot 
 recover from the party causing the injury : 
 Allender v. Chicago, R. I. & P. R. Co.. 37- 
 264. 
 
 109. A person who is injured through the 
 negligence of another must make use of 
 reasonable means to effect as speedy and 
 complete a recovery as can reasonably be ac- 
 complished. He is bound to employ as a 
 physician a person of such reputed skill as 
 persons are accustomed to employ in such 
 cases. But the fact that, after having em- 
 ployed such medical skill, his injuries are 
 rendered more serious by reason of improper 
 treatment will not prevent his recovei^y for 
 the entire injury resulting: Rice v. Des 
 Moines, 40-638. 
 
 110. All that is required in such cases is 
 that the person injured shall have exercised 
 such judgment and care as persons of or- 
 dinary prudence under like cii'cumstances 
 would exercise in the choice of a physician 
 and the means to be used to effect a recovery. 
 It is not required that such person shall em- 
 ploy the best surgical skill and the means 
 best adapted to heal the injuries. These may 
 not be within reach: Collins v. Cmtndl 
 Bluffs, 33-334. 
 
 111. Expense of earing for injured stock: 
 Where stock is injured by a railway com- 
 pany, and it does not appear that such com- 
 pany proposed or attempted to take charge 
 
DAMAGES, I, i; II, a. 
 
 535 
 
 Duty to prevent. — Measure of. — In general. 
 
 of the injured animals, and it also appears 
 that it was proper and necessary that they 
 should be cared for, the owner may recover 
 for the necessary expenses of taking care of 
 and endeavoring to cure them after the in- 
 jury has happened: Finch v. Central R. of 
 Iowa, 48-304. 
 
 112. Expenses incurred in tlie exercise 
 of ordinary efforts to prevent the damage, 
 whether the efforts have been successful or 
 not, should be allowed as an element of dam- 
 age against the party who is liable for such 
 damage: Smith v. Chicago, C. & D. R. Co., 
 38-518. • 
 
 113. Where a party in seeking to prevent 
 loss which may accrue to him by reason of 
 the negligence of another incurs expense, 
 such expense is a proper matter to be con- 
 sidered in determining the amount of recov- 
 ery for such negligence : Raridan v. Central 
 lowaR. Co., 69-527. 
 
 114. Question for jury: In an action 
 against a railroad for damages to crops from 
 failure to erect a sufficient cattle-guard, it 
 being claimed that plaintiflE might, in the 
 exercise of reasonable care, have prevented 
 the injury or a part thereof, held, that the 
 question as to whether, in the exercise of 
 I'easonable care, the plaintiff could have prop- 
 erly done what was necessary to prevent the 
 injury, was a question for the jury : Doivn- 
 ing V. Chicago, R. I. & P. R. Co., 43-96. 
 
 115. Kiile limited: Where one person does 
 another an intentional injury, he cannot in- 
 sist that the person injured shall, as a condi- 
 tion of recovery, prove that he could not 
 have avoided or limited the injury; Parkin- 
 son V. Parker, 48-667. 
 
 116. While a party cannot recover dam- 
 ages which moderate expense and ordinary 
 effort on his part would have been sufBcient 
 to prevent, yet the rule is not applicable to a 
 case where large expense or extra effort 
 would be necessary: Little v. McGuire, 38- 
 560; Smith v. Chicago, C. & D. R. Co., 38- 
 518. 
 
 117. The law will not require the other 
 contracting party to wholly perform the 
 contract at a large outlay in order to reduce 
 the damage which will otherwise result from 
 a faUure of the obligor to perform : Varncr 
 V. St. Louis & C. R. R. Co., 55-677. 
 
 118. Whei-e a land-owner agreed to con- 
 
 vey the right of way to a railway company 
 upon the performance of certain conditions 
 by the company, such as fencing, etc., held, 
 that on failure to perfoiin such conditions 
 the owner might recover the full value of 
 the right of way, and was not limited to the 
 cost of performing the conditions: Ibid. 
 
 119. When permanent injuries are done 
 to real property, the owner will not be re- 
 quired to restore it to its former condition, 
 even where possible and it can be done by 
 limited expense. The wrong-doer cannot 
 impose a burden of this kind upon the in- 
 jured party and thus escape liability for the 
 full amount of the injury done. So held 
 where the ' injury consisted in the filling uji 
 of a water-course upon which the property 
 of plaintiff abutted : Finley v. Hershey, 41- 
 389. , 
 
 II. MlSASUJiE OF DAMAGE. 
 
 a. Ill, (jetwral. 
 
 120. Part payment: Where a portion of 
 the claim of plaintiff has been paid, the meas- 
 ure of his damage is such amount that when 
 added to the amount he has received will 
 make the sum he was entitled to receive, 
 even though he files no set-off or counter- 
 claim : McCracken v. Webb, 86-551 . 
 
 121. Pecuuiiiry condition of defendant: 
 The ability of defendant to pay should not be 
 shown for the purpose of increasing the dam- 
 ages, at least not where the plaintiff is not 
 ■entitled to vindictive damages: Hunt v. Chi- 
 cago & N. W. R. Co., 26-mS. 
 
 122. As loss of marriage is an element of 
 damages in action for breach of promise, it is 
 proper for the jury to consider the pecuniar}' 
 as well as the social standing of defendant as 
 tending to show the condition in life which 
 plaintiff would have secured by a consumma- 
 tion of the marriage, but the question whether 
 defendant will be able to pay the damages 
 awarded should have no influence with a 
 jury in estimating the same: Holloway v. 
 Griffith, 32-409. 
 
 1SJ3. In an action to recover for slander 
 the pecuniary condition of defendant may 
 be shown, either by plaintiff in aggravation 
 or by defendant in mitigation of damages: 
 Kamey V. Paisley, 13-89. 
 
 124. Whatever doubt the court might have 
 
536 
 
 DAMAGES, II, a, b. 
 
 Measure of. — In general. — Value. 
 
 as to the propriety of this rule if the question 
 were a new one, it may now be considered 
 the established rule in this state: Herzman 
 V. Oberfelder, 54-83. 
 
 125. Aside from the exceptional cases of 
 slander and breach of promise to marry, evi- 
 dence of financial condition of defendant is 
 not receivable, even when plaintiff is enti- 
 tled to exemplary damages : Guengerech v. 
 Smith, 34^348. 
 
 Plaintiff's financial condition, in actions 
 for personal injuries, see infra, %% S21-228. 
 
 Breach of promise of marriage: Meas- 
 ure of damages in action for, see that title. 
 
 126. In action upon a penal bond for con- 
 dition broken, the amount for which the 
 plaintiif was originally entitled to recover 
 was the penalty. This severe rule of the 
 common law was only mitigated by the prac- 
 tice of courts of chancery, which would 
 not allow the creditor to take more than in 
 conscience he ought. Very soon arose the 
 practice enforced by legislation, requiring 
 the plaintiff to assign breaches in his decla- 
 ration, and the jury, on the trial, assessed 
 such damages for the breaches assigned as 
 the plaintiff on the trial might prove. There- 
 fore no other sum can now be recovered on 
 a penalty than that which shall compensate 
 the plaintiff for his actual loss: Oower v. 
 Carter, 3-244. 
 
 127. Under former statutory provisions, 
 judgment on a penal bond was for the entire 
 penalty named in the bond, with an assess- 
 ment of damages proved to have been sus- 
 tained by breaches thereof, the judgment for 
 the penalty, in so far as it exceeded the dam- 
 ages, remaining as security for any further 
 damage sustained: Cameron v. Boyle, 2 G. 
 Gr., 154; Nelson v. Gray, 2 G. Gr., 397. (See 
 now, Code, g 3728.) 
 
 128. Sureties on a bond are not liable there- 
 under, in damages for a breach thereof, fur- 
 ther than to the extent of the penalty therein 
 specified : Hall v. Stewart, 58-681. 
 
 129. Apprehended injury: The general rule 
 is that where a person sustains an injury 
 through the negligence of another, he is en- 
 t itled to recover to the extent of the injury 
 which the wrong-doer should reasonably 
 have apprehended: Pennington v. Western 
 Union Tel. Co., 67-631. 
 
 130. Thus where an offer to sell goods at 
 
 a stipulated price was sent by telegram, and 
 by reason of the negligence of the company 
 was not delivered, held, that the measure of 
 damages was not the difference between th« 
 price at which the property was offered and . 
 such greater price as the property would 
 bring at the time the party losing the offer 
 obtained knowledge of failure of transmission 
 by reason of which.it had not been made, 
 such rule being apphcable to the failure to 
 perfect a contract by reason of non-delivery 
 of the attempted acceptance, but not to a case 
 of a proposition or offer not transmitted: 
 lUd. 
 
 131. Where the language of a telegram 
 clearly imported that it related to shipping 
 stock to market, held, that the telegraph 
 company guilty of neglect in delivering 
 the message was liable for the fall in price 
 during the resulting delay in shipment : Man- 
 ville V. Western Union Tel. Co., 37-314. 
 
 b. Measure of value. 
 
 132. In general: Where two boats were 
 constructed and operated together by a single 
 crew, and one was injured, held, that the 
 real damage was the difference between the 
 value of the two boats and cargoes before and 
 after the accident, and this might be deter- 
 mined from evidence of the comparative cost 
 of transportation of the remaining cargo, and 
 the state of the market at the place of injury, 
 and all the circumstances upon which the 
 value depended. Also, that the relative ex- 
 pense of running one or two boats might be 
 considered in estimating the damage, and it 
 was proper to take into account the nature of 
 the cargo, its use and destination: McCabev. 
 Knapp, 33-308. 
 
 133. Where it appears that property, the 
 value of which is in controversy, had a dis- 
 tinctly recognized mai'ket value, it might be 
 proper to instruct the jury to allow the 
 market value, but where it does not appear 
 that it had a distinct mai-ket value, then it 
 may be instructed to allow the fair value of 
 the property : Gere v. Council Bluffs Ins. Co., 
 67-272. 
 
 134:. The measure of damages in an action 
 by the landlord for rent, payable in grain, is 
 its value when first demanded : Safely v. Oil- 
 more, 21-588. 
 
DAMAGES, II, b, c. 
 
 537 
 
 Measure of value. — For breach of contract. 
 
 135. Market \aluo: An mstruction ex- 
 plaining the term marketable value to be the 
 amount for which the property would sell if 
 put upon the open market and sold in the 
 manner in which property is ordinarily sold 
 in the community in which it is situated, held 
 not erroneous: Everett v. Union Pacific R. 
 Co., 39-243. 
 
 13G. Where the value of land was in 
 question, and it was claimed that it was so 
 situated that it would bring a greater price if 
 laid off in town lots, held not proper to allow 
 testimony as to how many lots could be laid 
 oflf to the acre, the question being what it 
 was worth in the condition in which it then 
 was : Ibid. 
 
 137. In an action for failure to deliver per- 
 sonal property contracted for, the fact that 
 the entire property undelivered could not 
 have been purchased for immediate delivery 
 in the market at the places where deUvery 
 was to have been made, at the time fixed 
 for delivery, would not of itself establish the 
 fa«t that there was not a market price for 
 such property at such time and place : Jem- 
 mison i\ Gray, 29-537. 
 
 138. Value of life estate: In estimating 
 the value of a life interest in land, it is im- 
 proper to multiply the annual rental value of 
 the premises by the expectancy of life. In 
 such case the present worth is to be calcu- 
 lated, and no more: Malli v. Willett, 57- 
 705. 
 
 139. Fencing right of way; cattle-guards: 
 The measure of damages for breach of con- 
 tract by a railway company to construct 
 cattle-guards will be the difference in the 
 rental value of the premises due to the failure 
 of the company to comply with its contract : 
 Hull V. Chicago, B. & P. R. Co., 65-713; 
 Varner v. St. Louis & C. R. R. Co., 55-677. 
 
 140. In an action for damages for the 
 destruction of crops caused by the failure of 
 a railway company to construct a cattle- 
 guard at the point where its track passes 
 through the fence inclosing such crops, held, 
 that the measure of damages would be the 
 fair value of the crops less the necessary 
 expenses of caring for and fitting said crops 
 for market, from the time of the alleged in- 
 jury, and if said crops were not entirely 
 destroyed, the value of the portion saved 
 should also be deducted from the market 
 
 value: Smith v. Chicago, C. & D. R. Co., 38- 
 518. 
 
 141. Damages to crops by surface water: 
 In an action against a railway company to 
 recover damages occasioned to growing crops 
 by the backing of surface water upon plaint- 
 iff's land by reason of the erection of an em- 
 bankment by a railway company upon its 
 right of way, held, that the measure of dam- 
 age was the difference between the value of 
 the premises before the injury and such 
 value immediately after the injury, and that 
 it was not competent to show what had been 
 the value of crops of the same kind grown 
 upon neighboring land: Drake v. Chicago, 
 R. I. & P. R. Co., 63-302. 
 
 142. In such case the jury would be en- 
 titled to consider, in determining the value 
 of the crop at the time of the injury, what- 
 ever it may be presumed would be considered 
 by a carefnl person desiring to buy : Ibid. 
 
 143. A meadow is in the nature of a per- 
 manent improvement and is not like annual 
 crops. Its value is partly based upon the 
 fact that it possesses this character, and is 
 not to be planted each year. Therefore, in 
 estimating the damage caused to a meadow 
 by a fire, held, that it was proper to instruct 
 the jury to allow the cost of restoring the 
 meadow to as good condition as it was before 
 the fire: Vermilya v. Chicago, M. <& St. P. 
 R. Co., 66-606. 
 
 Hi. Hedge: A growing crop may be 
 worth more or less than the cost of producing 
 it ; and held, that an instruction that ' ' the 
 value of the destruction of a hedge would be 
 the value of the labor in raising, cultivating 
 and planting it from seed to hedge," was 
 erroneous : Williamson v. Miller, 55-86. 
 
 0. I^'or 'breach of contract. 
 
 145. Partial performance: If a job of 
 
 work is of some use and value to the em- 
 ployer or vendee, though improperly done, 
 and not within the stipulated time, still the 
 workman or vendor is entitled to recover as 
 much as the work is reasonably worth, 
 making such reasonable allowance as the 
 circumstances require: Davis v. Fish, 1 G. 
 Gr., 406. 
 
 146. Where a party seeks to recover the 
 value of his services rendered in part per- 
 
538 
 
 DAMAGES, II, o. 
 
 For breach of contract. 
 
 formance of an entire contract which he has 
 failed to complete without proper excuse, his 
 measure of recovery is confined to tbS price 
 agreed upon by the parties under the con- 
 tract, subject to a set-off of the ■ damages 
 sustained by the non-completion of the agree- 
 ment : Byerlee v. Mendel, 39-383. 
 
 147. Contract price: In an action for the 
 value and price of work and material 
 furnished under a special conwact, the meas- 
 ure of damages, whei-e there is no proof of 
 extra work or charge increasing the expenses, 
 is the contract price less any payments or 
 damage suffered by the defendant in the 
 execution of the work : Corwin v. Wallace, 
 17-374. 
 
 As to the right to recover part compensa- 
 tion upon partial performance of an entire 
 contract, see CONTRACTS, XI, g. 
 
 148. Contract for services: Upon the 
 failure of an employer to cairy out the con- 
 tract of employment for the time agreed 
 upon, the employee is entitled to recover for 
 the loss of time at the agrefed or usual rate 
 of wages, provided he has used diligence to 
 secure other employment after the refusal of 
 the employer to comply with his contract. 
 The exercise of diligence by the employee in 
 seeking other employment must be directly 
 shown : Muller v. Fern, 35-430. 
 
 149. Reasonable value of services: Where 
 a pai-ty is entitled to recover the reasonable 
 value of services performed, he may show 
 the wages actually paid for such services un- 
 der the same circumstances, whether the 
 wages so paid are under express or implied 
 contract: Jenhs v. Knott's, etc.. Mining. Co., 
 58-549. 
 
 150. Difference between cost and con- 
 tract price: The measure of damages for 
 breach of a contract to deliver to an elevator 
 all grain of a certain class, and pay for the 
 handling thereof at the stated price per 
 bushel, held to be the differedce between the 
 cost of handling the grain in the elevator and 
 the price stipulated to be paid therefor : Rich- 
 mond V. Dubuque & S. C. B. Co., 26-191. 
 
 151. It would be a proper application of 
 the above rule in a case where plaintiff, in 
 order to handle the grain actually furnished 
 him, kept himself in position to have handled 
 what he did not receive, without additional 
 expense, to say that the measure of damages 
 
 should be the price agreed to be paid for sucli 
 handling, as the cost of handling would bo 
 nothing: Ibid. 
 
 152. Failure to perform conditions of 
 stipulation : Where the owner of land agreed 
 to convey the right of way thereover, on con- 
 sideration of the railroad company perform- 
 ing certain conditions, as fencing, etc., held, 
 that the owner's measure of damage for 
 breach of the contract by the railroad com- 
 pany was the money value of the considera- 
 tion withheld from him, and that such dam- 
 age was not merely what it would cost to 
 build the fence, etc. : Varner v. St. Louis & 
 C. R. R. Co., 55-677. 
 
 153. Where the action is for breach of con- 
 tract in constructing a building in a specified 
 manner, the measure of damage cannot be 
 said to be what it will cost to procm'e the 
 work to be done which is necessary to make 
 the building conform to the terms of the 
 contract. Such a rule, if applicable at all, 
 would only apply where the building lacked 
 certain particular items in order to complete 
 it: Smith V. Bristol, 33-24. 
 
 154. Sale of good-will: Upon breach of 
 a contract for the sale of the good-will of a 
 business, coupled with an agreement not to 
 resume the same business again in the same 
 locality, the purchaser may recover damages 
 to the extent that the seller, by resuming 
 business, has injured the business of the pur- 
 chaser : Moorehead v. Hyde, 38 -382. 
 
 155. Mining lease: In an action for breach 
 of contract to lease coal land for mining, held, 
 that plaintiff was entitled to recover the 
 value of the privilege or right which he held 
 under the contract for a lease with defend- 
 ant, to be determined in view of the quantity 
 of coal, its depth below the surface, the 
 amount of royalty to be paid, and other mat- 
 ters tending to show the value of the right to 
 mine : Chambers v. Brown, 69-213. 
 
 In cases of lease of real property, see 
 LAisrbtOKD AND Tenant, §§ 63-67. 
 
 156. Commissions on sale of goods: 
 Where plaintiff sued for breach of contract 
 on the part bf defendant in selling goods in 
 the territory over which, by agreement, 
 plaintiff was to have exclusive control of 
 such sales, held, that an instruction that if 
 such sales were shown, and it was further 
 shown that the parties making purchases 
 
DAMAGES, II, c. 
 
 539 
 
 For breach of contract. 
 
 from defendant would, but for the act of de- 
 fendant in selling to them, have purchased 
 through plaintiff, then the latter was entitled 
 to recover the same proportion of the money 
 received by defendant on account of such 
 sales as he would be entitled to had he made 
 the sales himself, held correct : Hall v. Steiv- 
 art, 58-681. 
 
 157. Temporary breach of contract: In 
 an action for breach of contract to furnish 
 power, it appearing that such failure occurred 
 only on one day by reason of a claim that 
 Ijlaintiff had not complied with the contract 
 as to payment, and that on the same day this 
 difficulty was adjusted, and on the next day 
 defendant notified plaintiff that he was ready 
 to furnish power according to contract, held. 
 that plaintiff could only recover for that day's 
 failure, and not for the value of the whole 
 unexpired term: Dye v. Wagner, 49-458. 
 
 158. Indemnity: Where one party agrees 
 with another to pay the latter's debt, the 
 measure of damages in an action by the prom- 
 isee for breach of the contract is the amount 
 of the debt promised to be paid, although the 
 promisee does not show that he himself has 
 paid the same : Stout v. Folger, 34-71 ; and 
 see Lyon v. Aiken, 70 . 
 
 159. Viiliie at time of breach: The meas- 
 ure of damages for breach of the contract to 
 maintain a side-track along certain lots, held 
 to be the difference in value of plaintiff's lots 
 with a side-track operated, and without it, at 
 the time that the track was abandoned, with 
 interest or not, as the jury should determine : 
 Amsden v. Dubuque & S. C. B. Co., 28-543. 
 
 IGO. Under a contract for the storage of 
 wheat, in which plaintiff was to have five 
 bushels of wheat for every one hundred 
 stored, and he sought to recover the price of 
 the wheat due him at the time of his demand, 
 which was some years after the contract was 
 performed, held, that the proper measure of 
 damages would be the price of wheat at the 
 time of the performance of the contract: 
 Miller v. Cassady, 35-333. 
 
 161. Where an elevator was erected under 
 a contract with a railway company, by wliich 
 grain shipped over the railway was to pass 
 through the elevator, and at the end of the 
 contract the elevator was to be purchased by 
 the railway company at its appraised value, 
 held, that the value of the elevator should be 
 
 estimated at what it would have been worth 
 if the company had fulfilled its contract an 
 to shipping the grain, and not at what 
 it was actually worth in view of the fact 
 that the company had repudiated such con- 
 tract: Richmond v. Dubuque &S. C. B. Go., 
 40-264. 
 
 162. Appraisal: Under such contract, 
 held, that a suit for the value of the eleva- 
 tor was a proper method of obta.ining the ap- 
 praisal required for determining the amount 
 to be paid therefor : Ibid. 
 
 1G3. Tort not to be included: In an ac- 
 tion for refusal by a railway company to 
 transport plaintiff accox-ding to contract, held, 
 that plaintiff could not recover for insult and 
 injury done him in being expelled from the ~ 
 company's car with undue violence: Stone 
 V. Chicago & N. W. R. Co., 47-82. 
 
 164. lu actions against a common car- 
 rier the true rule as to the measure of dam- 
 age for injuries to goods is the difference 
 between the fair market value of the goods 
 as delivered to the consignee, and what 
 would have been their fair market value at 
 date of delivery if they had not been injured 
 while in the carrier's possession. If they are 
 in such condition as to be unmarketable when 
 delivered, but by incurring a reasonable and 
 necessary expense they may be rendered 
 marketable, the expense thus incurred by 
 the consignee is properly considered in deter- 
 mining the measure of damage: Winne v. 
 Illinois Cent. B. Co., 31-588. 
 
 165. In action against telegraph com- 
 pany: Plaintiff having had a contract for 
 delivery of grain at a future day, in Chicago, 
 was misled by an incorrect market report 
 transmitted to him by a telegraph company, 
 and believing the price to be lower than that 
 which he was to receive upon delivery, or- 
 dered the purchase of enough grain to fill 
 his contract, although the actual price of 
 grain at the time of such order was above 
 that which he was to receive, but afterward, 
 and before the time when he was required to 
 deliver, the price fell below that of his con- 
 tract; held, that in an action against the 
 telegraph company for damages he might re- 
 cover the difference between the price paid 
 and the price which he was to receive from 
 his outstanding contract for future delivery : 
 Turner v. Eawkeye Tel. Co., 41-458. 
 
540 
 
 DAMAGES, ir, d, e. 
 
 In sales of land.-^ In sales of personal property. 
 
 166. Where, by reason of the negligence 
 of a telegraph company in the delivery of a 
 message, plaintifiE was delayed for three days 
 in the shipping of stock to market, and the 
 message clearly imported the object for 
 v/hioh it was sent, held, that the measure of 
 damage was the difEerence between the mar- 
 ket price of the stock on the day he might 
 have put it upon the market if the defendant 
 had been guilty of no negligence in deliver- 
 ing the message, and the market price at the 
 time when he was able to put such stock 
 upon the market : Manville v. Western Union 
 Tel. Co., 37-314. 
 
 167. Damage resulting by reason of the 
 non- receipt of a telegram making an offer of 
 property for sale would entitle a person who 
 should have received the offer to no greater 
 damage than the difference between the 
 price of the property as offered and its mar- 
 ket value at the day of the offer. The sub- 
 sequent increase of the market value cannot 
 affect the measure of damage: Pennington 
 V. Western Union Tel. Co., 67-631. 
 
 d. In sales of land. 
 
 168. Ill case of inisreprescntatioii ; ex- 
 change : The measure of damages in case of 
 misrepresentation as to the quantity of land 
 sold is the contract price of the amount of 
 deficiency with interest, and it is proper to 
 show the estimate placed upon lands ex- 
 changed at the time of entering into the 
 contract for the purpose of showing the true 
 basis of recovery : Hallam v. Todhunter, 24- 
 166. 
 
 And see Vendors, g§ 52-56. 
 
 169. One who sues for damages by reason 
 of false representations as to the quality of 
 lands purchased or exchanged, and does not 
 put himself in a position to rescind the entire 
 contract, can only recover the difference be- 
 tween the value of the land purchased at the 
 date of the contract and the amount the land 
 would have been worth at that time had it 
 been such as it was represented to be : Gates 
 V. Reynolds, 13-1. 
 
 170. Refusal to exchange: Under a con- 
 tract to exchange lands, the plaintiff having 
 conveyed his land under the contract, held, 
 that the measure of damages for defendant's 
 refusal to convey as agreed would be the 
 value of the property he was to convey to 
 
 plaintiff under the contract : JDevin v. Hiner 
 29-397. 
 
 171. Fraud of grantor in snbsccinently 
 conveying: Where a grantor made a subse- 
 quent conveyance to a third person, of prop- 
 erty previously granted to plaintiff, and sucli 
 subsequent grantee established title to the 
 property by reason of the defective recording 
 of_ plaintiff's conveyance, held, that such 
 grantor, being guilty of fraud, was liable to 
 plaintiff in damages measured by the extent 
 of the actual loss, embracing the enhanced 
 value of the land at the time the prior title 
 was defeated by reason of such fraud : Bur- 
 dick V. Seymour, 39-453. 
 
 Further as to damages for failure to con- 
 vey, see Vendors, gg 104-113. 
 
 e. In sales of personal proj>eriy. 
 
 172. Manufactured article: Where every- 
 thing has been done by a vendor which he is 
 required by his contract to do, and the manu- 
 factured property in its completed condition 
 is tendered, and the purchaser refuses to re- 
 ceive it, the vendor may recover the contract 
 price and the title will vest in the purchaser; 
 but where something remains to be done by 
 
 i the vendor which requires the co-operation 
 of the purchaser, and the purchaser refuseu 
 to perform, the contract price cannot be re- 
 covered : Moline Scale Co. v. Beed, 52-307. 
 
 173. Sale on credit; place of deliycry: 
 The measure of damages for breach of con- 
 ti-act to furnish goods on credit to be sold un- 
 der an exclusive privilege, contracted for by 
 the vendee, of selling within certain terri- 
 tory, is the difference in the contract price of 
 the goods not furnished according to con- 
 tract and their market value at the place 
 where the party to whom they were to be 
 furnished was to receive and sell them. The 
 fact that delivery of the goods to the pur- 
 chaser was to be made at the place of manu- 
 facture by delivery to a can-ier would 
 determine that as the place with reference to 
 which such market value was to be ascer- 
 tained : Cooi; Mfg. Co. v. Randall, 62-244. 
 
 174. Time: The rule of damages for fail- 
 ure to deliver goods at a specified time and 
 place, where the price is not paid before the 
 time for delivery, is the difference between 
 the contract and the market price at the time 
 
DAMAGES, II, e, f. 
 
 541 
 
 In sales of personal property. — In actions for tort. 
 
 and place fixed by the contract for delivery : 
 Davenport v. Wells, 1-598; Cannon v. Fol- 
 som, 2-101; Boies v. Vincent, 34-387; Jem- 
 viison V. Gray, S9-537; Harrison v. Charl- 
 ton, 37-134. 
 
 175. Where there is a contract for sale of 
 property, at a time fixed, at the market 
 price, the purchaser cannot recover damages 
 for failure of the seller to deliver. The buyer 
 being required to tender the market price, 
 there is no damage. It is immaterial that 
 the quantity of property contracted for 
 could not be had at the place designated for 
 delivery: Wire v. Foster, 62-114. 
 
 17C. If the contract is in writing no claim 
 for a different measure of damages by reason 
 of special circumstances can be sustained 
 unless such extraordinary liability appears in 
 the vpritten contract: Jemmison v. Oray, 
 29-537. 
 
 177. In such a case the following instruc- 
 tion was held to have been properly refused 
 as not furnishing a rule for the estimation of 
 damages, and liable to mislead the jury into 
 assuming to fix the amount of damage with- 
 out restraint : "Defendants are not to suffer 
 loss by reason of any fault or failure of 
 plaintiff, but they are to be made whole in 
 an allo^vance of damages, and the jury are to 
 take into consideration all the circumstances 
 and allow the defendants such sum as, in 
 their opinion, will protect the defendants 
 from the direct consequences of plaintiff's 
 failure, if any : '' Ibid. 
 
 1 78. Where defendant had sold to plaintiff 
 the lumber in a lumber yard to be delivered 
 at a future time, with an agreement that no 
 more lumber should be added to the stock, 
 and defendant, without the knowledge of 
 plaintiff, increased the stock of lumber, held, 
 that plaintiff's recovery should be limited to 
 the difference between the contract price and 
 the market price at the time of delivery, and 
 should not be measured by the difference be- 
 tween the conti-act price and the price at 
 which, by some special agreement, plaintiff 
 
 , might have been able to procure the lumber 
 wrongfully added to the stock of defendant: 
 Harrison v. Charlton, 37-134. 
 
 179. Where Ihe price Iiks been paid: 
 Where the price of a commodity contracted 
 for has been paid prior to the time for de- 
 livery, the purchaser is not confined in his 
 
 action for damages for non-delivery to the 
 difference between the contract and the 
 market price on the day of delivery, but may 
 recover the highest market price between the 
 day for delivery and the time suit is brouglit, 
 provided the plaintiff does not unreasonably 
 delay the institution of his suit : Cannon v. 
 Folsom. 3-101 ; Stapleton v. King, 40-278 ; 
 Oilman v. Andrews, 66-116. 
 
 180. In such a case the plaintiff may re- 
 cover the highest price between the day of 
 delivery and either the day of the com- 
 mencement of the suit or the day of trial : 
 Davenport V. Wells, 3-243. 
 
 181. Breach of warranty: The true meas- 
 ure of damages in an action for a breach of 
 warranty in a sale of personal property is 
 the difference between the value the thing 
 sold would have had if it had been as war- 
 ranted and its actual value with the defect, 
 and not the difference between the price 
 paid and the real value : Callanan v. Brown, 
 81-333. 
 
 182. The rule is to ascertain the real value 
 of the article sold in its inferior condition at 
 the time of its purchase and deduct that sum 
 from the contract price at the date of the 
 contract : Pitsinowsky v. Beardsley, 37-9. 
 
 183. The measure of damage for breach of 
 warranty in a sale of machinery is the dif- 
 ference in the value of the machine as it 
 actually was and what it would have been as 
 wai-ranted: McCormick v. Vanatta, 43-389. 
 
 184. Where the warranty provided that 
 upon notice to the seller, after one day's trial, 
 that the machine would not work, the seller 
 should have opportunity to put it in order 
 and would take it back if it could not be 
 made to work well, held, that loss of time to 
 the buyer and his hired hands and teams, oc- 
 casioned by failure of the machine to work 
 upon trial, was too remote to be included as 
 damages: Ibid. 
 
 And see Sales, §§ 236, 227. 
 As to measure of damages for breach of 
 covenants, see Conveyances. V, c. 
 
 f . In actions for tort in general. 
 
 185. Trespass: In an action for trespass 
 in the wrongful taking of trees by defendant 
 from plaintiff's land, where it appeai-s that 
 defendant entered upon the premises inno- 
 
542 
 
 DAMAGES, II, f . 
 
 In actions for tort in general. 
 
 cently and by mistake, plaintiff should be 
 limited to the recovery of the value of the 
 trees as they stood and not their value after 
 being cut and prepared for removal. In 
 such cases plaintiff is not entitled to re- 
 cover the enhancement of value consequent 
 upon defendant's labor: Striegel v. Moore, 
 55-88. 
 
 186. The rule that a trespasser cannot be 
 allowed compensation for enhancing the 
 value of the property which is the Subject of 
 the trespass, held not applicable to a case 
 where the owner of mineral land had mined 
 mineral in violation of his lease to another, 
 the measure of damages in such case being 
 the value of the mineral raised less the rent 
 and the reasonable cost of raising it : Cham- 
 berlain V. Collinson, 45-429. 
 
 187. In case of the wrongful conversion of 
 personal property by a trespasser, he is not 
 entitled to compensation for labor expended 
 upon the property (such as husking and 
 cribbing corn), notwithstanding his acts may 
 have increased its value: Stuart v. Phelps, 
 39-14. 
 
 188. In an action against a trespasser for 
 crops raised by him upon and removed from 
 the premises wrongfully occupied, he may be 
 required to pay the value of such crops 
 without any allowance for the labor, ex- 
 penses, etc., in connection therewith: Kier- 
 nan v. Heaton, 69-136. 
 
 189. Where a trespasser went upon lands 
 and raised crops thereon, held, that he was 
 liable in damages for the value of the crops 
 thus raised, ^ven after they had been severed 
 and removed from the property : Ihid. 
 
 190. In such case, held, that the owner 
 could recover nothing more than the value 
 of the crops removed, and could have no al- 
 lowance for injury to the property in break- 
 ing, it not appearing that it would be worth 
 less in the market by reason of its having 
 been broken, although it might be more lia- 
 ble to injury by washing, etc. : Ihid, 
 
 191. In an action for injury to real 
 property, unaccompanied by malice or op- 
 pression on the part of the wrong-doer, and 
 in the absence of a special liability created 
 by statute, the plaintiff may recover, as dam- 
 ages, the sum which, expended for the pur- 
 pose, would put the property in as good con- 
 dition as it was in before the injury, with the 
 
 additional sums which would compeu6at(.> 
 the plaintiff for the use and enjoyment of 
 the property, should he be deprived thereof 
 by the injury, and the value of such prop- 
 erty, as trees, buildings, and the like, which 
 have been wholly destroyed and cannot be ' 
 restored to the condition they were m before 
 the injury : Graessle v. Carpenter, 70 . 
 
 192. In such a case it is eiTor to instruct 
 that the measure of damage is the difference 
 in value between the premises as they were 
 before the defendant entered upon them to 
 do the action complained of and the value of 
 the premises after such action was done: 
 Ibid. 
 
 1S)3. The general rule in respect to meas- 
 ure of damages in cases of trespass upon real 
 property when personal property is removed 
 therefrom is the market value of such per- 
 sonal property at the time of removal : Brown 
 V. Allen, 35-306. 
 
 194. Damage to property from overflow: 
 In an action for damages resulting from the 
 overflow of property, the true measure of 
 damage is the injury which the property sus- 
 tains frOm successive overflows when they 
 occur, unless it appears that with reasonable 
 care and caution such injury could have 
 been guarded against: Van Pelt v. Daven- 
 port, 43-308. 
 
 195. Suit being brought to recover dam- 
 ages for the wrongful flowing back of water 
 upon plaintiffs' premises and for damages to 
 their water-power, held, that they might re- 
 cover for either, and an instruction which 
 confined the recovery to damage to the water- 
 power was erroneous as liable to mislead the 
 jury: Close v. Samm, 27-503. 
 
 196. Injury to riparian rights: In an ac- 
 tion for damages caused to an abutting owner 
 by the filling of a channel on which the prop- 
 erty abutted, held, that the measure of dam- 
 ages was the difference between the value of 
 the property prior to such filling, and ite 
 value as depreciated thereby, and not the 
 value of the use of the property before and 
 after the filling: Finley v. Hershsy, 41- 
 389. 
 
 197. Male animal running at large: The 
 damage to the owner of a thoroughbred cow, 
 which is got with calf by an unpedigreed 
 bull unlawfully at large, is the difference in 
 value of the cow for'-breeding pu'rpdses Ixi- 
 
DAMAGES, II, f, g, 
 
 543 
 
 In actions for tort. — In actions for pei'sonal injury. 
 
 fore meeting the bull and afterward : Craze- 
 ford V. Williams, 48-247. 
 
 198. Conversion: The value of the prop- 
 erty at the time of conversion, with interest, 
 is the measure of damages where there is no 
 claim for special damages: Cutter v. Fan- 
 ning, 2-580. 
 
 199. A party suing for a conversion cannot 
 recover the full value of the property where 
 it is shown that he has sold the property, 
 after the conversion, to a person who would 
 be liable for the conversion thereof, and re- 
 ceived payment : Pierce v. Evans, 36-495. 
 
 200. If property is wrongfully taken from 
 the owner and is thereafter destroyed by fire, 
 the wrong-doer is liable for its value, not by 
 reason of the fact of loss, but by reason of 
 the tort preceding the loss : Harper v. Dot- 
 son, 43-232. 
 
 201. Notes or clioscs in action : The prima 
 facie measure of damages for conversion of 
 notes or choses in action placed in one's 
 hands for collection is the amount of their 
 face value at the time of demand made; 
 Latham v. Brown, 16-118. 
 
 202. Where a chose in action has been im- 
 properly converted, the amount of the face 
 value is prima facie the measure of damage : 
 Sadler v. Bean, 37-439. 
 
 203. While the measure of damages for 
 the wrongful conversion of negotiable paper 
 is ^Wma /aeie the sum recoverable thereon, 
 yet where the market value may be shown 
 by showing the insolvency of the maker or 
 obligor, the measure of damages will not ex- 
 ceed the real or market value : Callanan v. 
 Brown, 31-333. 
 
 204. Mnnicipal bonds: While in an ac- 
 tion for the conversion of a note or bill or 
 other security, executed by an individual, 
 the true measure of damages is the face of or 
 the amount due upon such security, with in- 
 terest from the conversion up to the trial, 
 unless it is shown that the maker was insolv- 
 ent, or the security illegal, or that it had 
 been in whole or in part ijaid , and the market 
 value of the note or security cannot be in- 
 quired into, yet, as municipal bonds are 
 issued for the purpose of sale, they have a 
 market value, and such value will be the 
 measure of damages in case of conversion, 
 unless some special circumstances are shown 
 which give to the particular instrument in 
 
 question a special value, and it appears that 
 such circumstances were known to the per- 
 son dealing with reference thereto : Griffith 
 V. Burden, 35-138. 
 
 205. Detention: In an action for the 
 wrongful detention of a warrant drawing in- 
 terest, held, that the proper measure of dam- 
 ages recoverable was legal interest on the 
 war'rant during the time of the wrongful de- 
 tention : McCoy v. Cornell, 40-457. 
 
 206. Assault and battery: In an action 
 for damages for assault and battery, plaint- 
 iff may recover for mental anguish and in- 
 jury to business and social standing, result- 
 ing from violence, as a direct and natural 
 consequence : Lucas v. Minn, 35-9. 
 
 g. In actions for personal injury. 
 
 207. Medical attendance: Where dam- 
 ages are claimed on account of personal in- 
 jury resulting from defendant's negligence, 
 and one element of the damages claimed is 
 the expense of medical attendance, if it ap- 
 pears that a, physician was employed, the 
 law will presume an obligation to pay the 
 reasonable value of his services, and such 
 reasonable value may be shown by another 
 physician, although the charges for such 
 services have- not been paid: Varnham, i. 
 Council Bluffs, 52-698. 
 
 208. Attendance of relative: In such case, 
 held also proper to allow plaintiff's daughter, 
 who attended plaintiff while suffering from 
 the injury complained of, to testify as to 
 what such attendance was reasonably worth, 
 irrespective of whether plaintiff was under 
 legal obligation to pay for such attendance : 
 Ibid. 
 
 209. Evidenceof value of attendance: Ex- 
 penses of care and attendance, etc., cannot 
 be included as elements of damage in an 
 action for personal injuries, where there is 
 no evidence as to the value of such items : 
 Muldowney v. Illinois Cent. R. Co., 36-462. 
 
 210. Damages must be shown: It is error 
 to allow the jury to consider damages for los ; 
 of time, or for expense of medicine and nurs- 
 ing, in an action for personal injuries, where 
 there is no allegation of loss of time and no 
 evidence of any expense incurred for any 
 purpose : Gardner v. Burlington, C. R. & N. 
 R. Co., 68-588. 
 
Hi 
 
 DAMAGES, II, g. 
 
 In actions for personal injury. 
 
 211. There being no evidence upon which 
 any estimate of the expense of medicine and 
 medical treatment might be based, it is error 
 to instruct the jury that they may allow 
 damages for such expense, in an action for 
 personal damages: Eckerd v. Chicago & N. 
 W. R. Co., 70 . 
 
 212. It is error to instruct the jury that 
 plaintiff may recover i-easonable expense in- 
 curred in nursing, when there is no evidence 
 that any such expense was incurred: Nichols 
 V. Dubuque & D. R. Co., 68-732. 
 
 213. A party cannot recover damages by 
 reason of the loss of time on account of as- 
 sault and battery where there is no evidence 
 that he lost any time in consequence of such 
 injury : White v. Spangler, 68-232. 
 
 Profert of the person, see Evidence, 
 II, 5. 
 
 214. Expectation of life; life tables: 
 The Carlisle life tables being standard tables 
 on the subject of the expectation of hfe, 
 are competent evidence: Donaldson v. Mis- 
 sissippi <& M. R. Co., 18-280. 
 
 215. In case of the death of a minor such 
 tables are admissible to show his expectation 
 of life beyond the period of attaining major- 
 ity : Walters v. Chicago, R. J. & P. R. Co., 
 41-71. 
 
 216. In an action against a railway com- 
 pany for negligence occasioning the death of 
 plaintiff's intestate, the ordinary life tables 
 are admissible in evidence in determining the 
 amount of damage, notwithstanding the ex- 
 pectation of life in a dangerous employment, 
 such as that of raUi'oading, may not be so 
 great as in ordinary cases : Coatesv. Burling- 
 ton, C. R. & N. R. Co., 6S-486. 
 
 217. Wliere there was some evidence that 
 the death of plaintiff's intestate subsequent 
 to the injury was the result of the injury, 
 held, that it was not error to admit the life 
 tables in evidence : Simonson v. Chicago, R. 
 I. &P. R. Co., 49-87. 
 
 218. In a case of personal injury of a per- 
 manent nature so as to disable one for life 
 from doing labor, the length of time the in- 
 jured party would probably live is proper data 
 to be considered by the jury in determining 
 the amount of pecuniary damage sustained, 
 and the Carlisle tables are admissible to show 
 the expectancy of life : McDonald v. Chicago 
 & N. W. R. Co., 20-134. 
 
 ?19. "Expectancy in life" is different 
 from "expectancy of life." The former 
 phrase means one's probable employment, 
 conditions, etc., during his life: Rice v. De.<s 
 Moines, 40-638. 
 
 220. The fact that, in an action to recover 
 damages to the estate of a person whose 
 death is caused by the alleged negligence of 
 a railway company, life tables are not inti'o- 
 duced in evidence, will not render the allow- 
 ance of damages by the jury for such death 
 improper, it not being claimed that the 
 amount of damages allowed is excessive: 
 Beemsv. Chicago, R. I. A P. R. Co., 67-435. 
 
 Life tables not receivable in action by wife 
 to recover damages for causing intoxication 
 of husband, see Intoxicating Liquoes, §195. 
 
 221. Value of plaintiff's services; de- 
 fendant's flnnncial condition: In an action 
 for damages for personal injury, it is com- 
 petent to show the nature of plaintiff's busi- 
 ness and the value of his services in conduct- 
 ing it, as a ground of estimating damages ; 
 but unless plaintiff is entitled to exemplary 
 or vindictive damages for a malicious injury, 
 the ability of the defendant to pay cannot be 
 shown to increase the damage : Hunt v. Chi- 
 cago & N. W. R. Co., 26-363. 
 
 222. But the nature of plaintiff's employ- 
 ment and his dependence thereon for sup- 
 port, as well as the value of his services, and 
 therefore his financial condition as making 
 him dependent upon his services for support, 
 may properly be shown in evidence: Moore v. 
 Central R. of Iowa, 47-688. 
 
 223. Condition in life of person injured: 
 The value of the life of a person killed by 
 negligence is not, in the light of pecuniary 
 considerations, affected by his method of life 
 in relation to his indifference to comforts 
 usually prized by others : Walter v. Chicago, 
 D. & M. R. Co., 39-33. 
 
 224. Occupation, earnings, etc., of person 
 injured: Where the jury is guarded by in- 
 structions against an allowance of improper 
 damages, in an action for the death of a per- 
 son, and the recovery is limited to such 
 damage as the estate suffered in a pecuniary 
 way, it seems proper to allow evidence to be 
 introduced as to the occupation, annual earn- 
 ings, age, health, habits, family and estate of 
 the deceased : Donaldson v. Mississippi & M. 
 R. Co., 18-280. 
 
DAMAGES, II, g. 
 
 5i5 
 
 In actions for personal injury. 
 
 225. In an action for damages resulting 
 from personal injury' sustained in the service 
 of a railway company, held, that it was proper 
 for plaintiff to testify as to what wages he 
 was receiving at the time of the accident, 
 and as to whetlier he was incapacitated, as 
 the result of the injury, from doing the kind of 
 work he had been accustomed to do : Kline 
 V. Kansas City, St. J. & C. B. R. Co., 50- 
 656. 
 
 226. In connection with proof of the earn- 
 ings of the person injured it is proper to 
 show the condition of his health, his apti- 
 tude and qualifications for business and his 
 habits of industry, his habits with reference 
 to the use of intoxicating liquors, and in re- 
 gard to anything else which affected his 
 prospective earnings and savings. But proof 
 of the average personal expenses of men in 
 his condition in life at the place where he 
 lived is not admissible. That the person in- 
 jured was dependent upon his earnings is a 
 circumstance to be considered as bearing 
 upon the probable continuance of his indus- 
 try. Also, as bearing upon the question of 
 his necessities, held, that the fact that his 
 step-father had driven him from home and 
 was not good to him, was admissible : Simon- 
 son V. Chicago, R. I. <& P. R. Co., 4&-87. 
 
 227. In an action by an administrator for 
 damages to the estate from the death o.f in- 
 testate from personal injuries it may be 
 proper to show that deceased was a married 
 man, but evidence of the number of his 
 children is not admissible : Beems v. Chicago, 
 R.I. &P. R. Co., 58-150. 
 
 228. The estate of the person killed by 
 negligence is entitled to recover what, ac- 
 cording to the evidence, would have been 
 the probable pecuniary benefit to the estate, 
 had his life continued. Circumstances proper 
 to be considered in such csises stated : Kelley 
 V. Central R. of Iowa, 5 McCrary, 653. 
 
 229. In an action for damages, resulting 
 from personal injuries, interfering with the 
 prosecution of plaintiff's business, he may 
 prove what he could earn per year by his 
 personal exertions prior to the injury, and 
 that from the time of the injury to the time 
 of the trial he has been incapacitated from 
 business, it also appearing that the injury is 
 of a permanent chai-acter: Rice v. Des 
 Moines, 40-638. 
 
 Vol. I— 35 
 
 230. Loss of time of married woman : A 
 
 married woman, in an action for damages, 
 cannot recover for loss of time unless she 
 shows that she was engaged in the prosecu- 
 tion of a business separate from her husband : 
 Tuttle V. Chicago, R. I. & P. R. Co., 42-518 ; 
 Thomas v. Brooklyn, 58-438. 
 
 231. Pecuniary condition of plaintiff: In 
 an action against a city for damages result- 
 ing to a physician from injuries received by 
 reason of defects in a street, which injuries 
 are such as to incapacitate him for pursuing 
 his profession, it is not improper to allow 
 plaintiff to testify that he has no other means 
 of support except his earnings in his profes- 
 sion: Stafford V. Oskaloosa, 64^251. 
 
 232. Cliauce of promotion in ttnsiness: 
 Evidence as to the earnings of plaintiff's in- 
 testate being received in a particular case for 
 the purpose of showing what damages should 
 be recovered by the estate for an injury re- 
 sulting in his death, and it appearing that his 
 employment was that of fireman, held, that it 
 was not proper to permit the introduction of 
 evidence to the effect that firemen employed 
 on defendant's engines, when they had suffi- 
 cient experience, and had acquired the req- 
 uisite skill, were sometimes employed as 
 engineers, and when so employed they were 
 paid an increased compensation for their 
 services, it being shown that plaintiff's intes- 
 tate at the time of his death was not an en- 
 gineer, nor possessed of the requisite skill 
 for that employment : Brown v. Chicago, R. 
 I. & P. R. Co., 64-652. 
 
 233. Speculative profits: In estimating 
 damages the jury should consider the exact 
 situation, life, habits, etc., of the deceased, 
 and give full pecuniary compensation for the 
 loss resulting to his estate from his death. 
 While much is left to their sound discretion, 
 they are not authorized to found their verdict 
 upon mere speculation as to possible increase 
 of fortune of deceased : JBo.se v. Des Moines 
 Valley R. Co., 89-246. 
 
 234. rhysical suffering: An injured party 
 is entitled to recover damages for future 
 physical suffering, even if the injury is not 
 of a permanent character, but such allow- 
 ance for future suffering must be limited to 
 such as it is reasonably certain from the 
 evidence will occur, and it is error to allow 
 the jury to give damages for sucdi as may oc- 
 
•-46 
 
 DAMAGES, II, g. 
 
 In actions for personal injury. 
 
 lur: Fry v. Dubuque & S. W. B. Co., 45- 
 416. 
 
 235. As mental pain is a natural and in- 
 evitable result of personal injury, damages 
 therefor may be proven without being spe- 
 cially claimed : Crronan v. Kukkuele, 59-18. 
 
 236. Mental suffering arising from actual 
 physical injury inflicted may properly be 
 considered in estimating compensatory dam- 
 ages; Ferguson v. Davis County, 57-601. j 
 
 Further as to damages for pain and suffer- | 
 ing, see supra, I, d. 
 
 237. In an action by an administrator j 
 for injury to the estate of his intestate by \ 
 reason of his death, there is no basis for 
 damages for pain and suffering or for the grief 
 of his relatives. Compensation for the pecun- 
 iary loss to his estate is alone to be allowed : 
 Rose V. Des Moines Valleij R. Co., 39-246; 
 Donaldson v. Mississippi & M. R. Co., 18- 
 380. 
 
 238. Where an action for personal injuries 
 is brought by the party injured, in which 
 compensation for pain and suffering is 
 claimed, and afterward, upon his death, his 
 administrator is substituted as plaintiff, such 
 administrator can recover the same damages 
 for pain and suffering which might have 
 been recovered if the action had been carried 
 on by the original plaintiff, but the rule 
 would be different if the action had been 
 commenced after the death of the person in- 
 jured, for the benefit of his estate : Muldow- 
 ney v. Illinois Cent. R. Co., 36-462. 
 
 23i). Permanent injuries: It is proper to 
 instruct the jury that if they find the injury 
 to be of a permanent character they should 
 consider that fact as an element enhancing 
 the damages: Collins v. Council Bluffs, 32- 
 ;524. 
 
 240. Prospective damages: It is proper to 
 instruct the jury that if they find plaintiff 
 entitled to damages for injuries from which 
 he has not recovered, they should consider 
 the length of time it will require him to re- 
 cover as appears from the evidence : Gronan 
 I'. Kukkuek, 59-18. 
 
 , ^il. Fulure suffering: In an action for 
 damages resulting from personal injuries, the 
 plaintiff should be allowed compensation for 
 such consequences as it is reasonably certain 
 will result to him in the future from the in- 
 ]m-y ■.Staffovd v. Oskaloosa, 64-251. 
 
 242. Discretion of jury: An insti-uctiou 
 saying that elements of damage to plaintiff's 
 power to earn money, and for pain and an- 
 guish suffered by reason of injury, are from 
 necessity left to the sound discretion of the 
 jury, lield not erroneous, there being noth- 
 ing in the charge to take from the considera- 
 tion of the jury evidence given in regard U> 
 the character of the injury, the pain suffered 
 and the disability probably incurred : Morris 
 V. Chicago. B. & Q. R. Co., 45-29. 
 
 243. Where the court instructed the jury, 
 in an action for damages for negligence occa- 
 sioning the death of the plaintiff's intestate, 
 that the damages would be such a sum, not 
 to exceed the amount claimed, as it appeared 
 from the testimony would compensate for the 
 loss sustained by the injuries, taiing into con- 
 sideration all the testimony having a bearing 
 thereon, held, that the instruction should have 
 been more explicit as to the measure of dam- 
 ages to which plaintiff was entitled : Coates 
 V. Burlington, C. R. & N. R. Co.. 62-486. 
 
 244. Injuries to estate of minor by rea- 
 son of his death: Under our statute (Code, 
 g 2520) allowing an action for a wrongful act, 
 causing death, to be brought by the adminis- 
 trator for the benefit of the estate, the admin- 
 istrator of a minor can recover damages for 
 injury to the estate only from the time the 
 decedent would haye become of age. Action 
 for damages for the time to lapse between 
 the time of death and the time of coming of 
 ago must be brought by the father : Walters 
 V. Chicago, R. I. & P. R. Co., 36-458. 
 
 245. Damages to the estate only are to be 
 recovered in such action and not those result- 
 ing to the next of kin : Sherman v. Western 
 Stage Co., 24-515. 
 
 24(». In such a case the damages to the 
 estate, when there is no property except the 
 probable fruits of personal earnings of the 
 minor if he had lived, are limited to those 
 which would arise at and after his attaining 
 majority. For such earnings as would ac- 
 crue prior to his attaining majority, the 
 father, or in case of abandonment by the 
 father, the mother, could maintain an action : 
 Lawrence v. Bimey, 40-377. 
 
 247. But in such actions the administrator 
 is not to be limited to the recovery of nom- 
 inal damages: Walters v. Chicago, R. I- & 
 P. R. Co., 41-71. 
 
DAMAGES, II, g. 
 
 54 ( 
 
 In actions for personal injury. 
 
 248. Expectation of life: In such a case, 
 life tables are admissible to show the expect- 
 ancy of life of the minor beyond majority. 
 The fact that nothing can be recovered for 
 the period up to majority does not affect the 
 rule for determining the probability of life 
 after that period : Ibid. 
 
 249. Father's pursuits: It is not error in 
 such an action to allow the jury to take into 
 consideration the pursuits in which the father 
 is engaged, as indicating the general nature 
 of the pursuits which deceased would have 
 probably followed had he lived and his life 
 and strength been preserved, and for the 
 purpose of determining what the business 
 and earnings of deceased would probably 
 have been : Ibid. 
 
 250. Present worth of future earnings: 
 In determining the damages to be recovered 
 in an actioij by a parent for the death of a 
 minor child, the jury should be instructed to 
 take into consideration, not only the amount 
 of probable earnings but the fact that such 
 earnings would have been in the future, and 
 should render a present verdict for such 
 amount as would be equivalent to a sum to 
 be earned at the time the services would 
 have been rendered : Benion v. Chicago, R. 
 I. & P. R. Co., 55-496. 
 
 251. Excessive damages: So many ele- 
 ments properly enter into the computation 
 of damages in a case of personal injury, and 
 so much is necessarily left to a wise and well 
 guarded discretion, that it is difficult to 
 weigh nicely and determine with mathemat- 
 ical exactness the amount which should be 
 paid for bodily suffering, mental anxiety and 
 the like ; and to warrant the setting aside of 
 a verdict for such damages as being excess- 
 ive, the excess should be so flagrant as to 
 strike the mind at once as being the result of 
 bias, prejudice, or passion: Russ v. Steam- 
 boat War Eagle, 14-363; Collins v. Council 
 Bluffs, 32-324 ; Locke v. Sioux City & P. R. 
 Co., 46-109. 
 
 252. The allowance of fifteen thousand 
 dollars to a woman receiving permanent in- 
 juries in her ankle from an accident caused 
 by accumulation of snow upon a sidewalk, 
 held excessive, it appearing that her eai'n- 
 ings could not exceed from three hundred to 
 five hundred dollars per year, and plaintiff 
 was allowed the option of accepting a reduc- 
 
 tion to ten thousand dollars or a new trial: 
 Collins V. Council Bluffs, 35-433. 
 
 253. Where plaintiff was seriously injured, 
 suffering intense pain for many months, 
 being put to great expense, and rendered a 
 cripple for life by reason of injury received 
 through the negligence of a city in guarding 
 a dangerous place, held, that a verdict of 
 seven thousand dollars was not excessive: 
 Rowell V. Williams, 29-210. 
 
 254. A verdict of nine thousand dollars 
 for personal injuries to plaintiff for life, de- 
 priving him of the ability to labor, and from 
 which his sufferings had been protracted 
 and most intense, held not such as to war- 
 rant the court in setting it aside as excessive : 
 Deppe V. Chicago, R. I. dk P. R. Co., 38-592. 
 
 255. A verdict of ten thousand dollars in 
 favor of the administrator of a person whose 
 death was caused by the negligence of a rail- 
 way company, and who at the time of his 
 death was twenty-four years of age, had an 
 expectancy of life of thirty-eight years, and 
 was a man of temperate and indtistrious hab- 
 its, whose net earnings annually at the time 
 of his death were $263, held so excessive as 
 to indicate passion or prejudice, and the 
 plaintiff was directed to remit the excess over 
 five thousand dollars or submit to a reversal 
 of the case : Rose v. Des Moines Valley R. Co. . 
 39-246. 
 
 25(5. A verdict of $4,500 for the death of a 
 man from fifty-seven to sixty-five years of 
 age, in the enjoyment of reasonable health, 
 of industrious habits, and possessed of some 
 property, held not excessive: Walter v. 
 Chicago, D. & M. R. Co., 39-33. 
 
 257. Where it appeared that by an accident 
 caused by defective sidewalks, plaintiff's 
 ankle had been injured so as to render him 
 permanently lame, held, that a verdict of 
 $7,500 was not so excessive as to indicate pas- 
 siim or prejudice : Rice v. Des Moines, 40-638. 
 
 258. Where a railway employee, in good 
 health, thirty-two years of age, earning two 
 dollars and fifty cents per day, was killed. 
 held, that a verdict of five thousand dollars 
 against the company for negligence causing 
 his death was not excessive : Berry v. Cen- 
 tral R. of Iowa, 40-564. 
 
 25!). Where it appeared that plaintiff had 
 sustained a serious permanent injury, sub- 
 jecting her to great suffering and unfitting 
 
548 
 
 DAMAGES, II, g; III. 
 
 In actions for personal injury. — Exemplary. 
 
 her for some of life's duties, held, that a 
 verdict for $5,50Q was not excessive: Allen- 
 derv. Chicago, R. I.'&P. B. Co., 43-276. 
 
 260. Where an injury to a man thirty 
 years of age, in an employment yielding him 
 $540 per year, and in a business in which 
 there was a regular system of promotion, 
 permanently disabled him in that employ- 
 ment, and probably tended to shorten his 
 life, held, that a vei-dict of |11,000 was not 
 excessive: Belair v. Chicago & N, W. R. Co., 
 43-662. 
 
 261. Where decedent's net income was 
 about $450 per year, his habits good, and his 
 expectancy thirty-six years, held, that a vei-- 
 dlct for $7,000 for injuries from negligence 
 of defendant causing death was not excess- 
 ive: Locke V. Sioux City <& P. R. Co., 46- 
 109. 
 
 262. A verdict for $1,425 in favor of a 
 brakeman in the employ of a railroad com- 
 pany, for injuries to his hand, and a partial 
 loss of the use thereof, held not excessive: 
 Kline v. Kansas City, St. J. & C. R. R. Co., 
 50-656. 
 
 263. Where, as the result of an injury, the 
 plaintiff, a farmer fifty-two years of age, had 
 his leg broJien near the hip, resulting in a 
 false joint, causing a permanent injury, dis- 
 abling him from labor, held, that a verdict 
 for $8,000 damages was not so excessive as to 
 justify an interference on appeal : Fiinston v. 
 Chicago, R. I. & P. R. Co., 61-453. 
 
 264. Where the plaintiff suffered a com- 
 pound fracture of the arm and a partial dis- 
 location of the elbow, resulting in permanent 
 injuries, held, that a verdict for |4,00P dam- 
 ages was not excessive: Van Winter v. 
 Henry County, 61-684. 
 
 265. Where a woman in good health and 
 in the prime of life received severe injuries 
 such as to disable her for life and cause 
 hernia, which is incurable, held, that a ver- 
 dict for $3,500 for such injuries was not ex- 
 cessive : Colder v. Smalley, 66-219. 
 
 266. Where the injuries received from be- 
 ing put off a train at a dangerous place were 
 very great, the thigh being fractured in two 
 places, endangering life, and perananent in- 
 jury ]-esulting, held, that $7,000 was not ex- 
 cessive damages, although plaintiff was a 
 poor man with small earnings: Marion v. 
 Chicago, R. I. & P. R. Co., 64^568. 
 
 267. A verdict for twenty-five thousand 
 doUars on account of personal injuries re- 
 covered against a county for negligence in 
 the erection and maintenance of a county 
 bridge by reason of which such person re- 
 ceived injuries from which he afterwards 
 died, held excessive, and held that the plaint- 
 iff should have the option of accepting fif- 
 teen thousand dollars or submitting to a 
 new trial : Cooper v. Mills County, 69-350. 
 
 III. EXEMPLAET DAMAGES. 
 
 268. Punitive rather than compensatory: 
 
 Exemplary damages are awarded by way of 
 punishment to the wrong-doer, and not to 
 compensate the person injured or as a mat- 
 ter of right : Sheik v. Hobson, 64-146. 
 
 269. An instruction to the jury that " ex- 
 emplary damages are given whenever ele- 
 ments of oppression or fraud or malice enter 
 into the commission of an offense; and in 
 such cases the jury are not limited to actual 
 compensation, nor are they required to scru- 
 tinize very closely the amount of their ver- 
 dict, but blending together the rights of the 
 injured party and the interests of the com- 
 munity, they may give such a verdict as will 
 compensate for the injury and at the same 
 time inflict some punishment upon defend- 
 ant for his wrongful act, protect society and 
 manifest the detestation in which the act is 
 held by them," held not erroneous except as 
 to the last clause, but that the error in this 
 clause was sufficient to waiTant a reversal : 
 Hendrickson v. Kingsbury, 21-879. 
 
 2 70. Exemplary damages will not be lim- 
 ited to compensation for injury to the feel- 
 ings, etc., of the plaintiff, resulting from 
 the wrongful act of defendant: Parkhurst 
 V. Masteller, 57-474. 
 
 271. Not a punishment: The damages al- 
 lowed in a civU ease by way of punishment 
 have no necessary relation to the penalty in- 
 curred for the wrong done to the public, but 
 are called punitive damages by way of dis- 
 tinction from pecuniary damages, and to 
 characterize them as a punishment for the 
 vrrong done to the individual. The award- 
 ing of punitive damages, therefore, does not 
 conflict with the constitutional inhibition 
 against inflicting two punishments for the 
 same offense: Hendrickson v, Kingsbury, 
 21-379. 
 
DAMAGES, III. 
 
 &VJ 
 
 Exemplary. 
 
 272. One may be liable for punitive dam- 
 ages for malicious injury although the of- 
 fense is one punishable under the criminal 
 statutes: Garland v. Wholeham, 26-185; 
 Guengerich v. Smith, 36-587 ; Ward v. Ward, 
 41-686 ; Reddin v. Gates, 52-310. 
 
 273. It is not error to instruct the jury 
 that among the objects to be attained by the 
 allowance of exemplary or punitive dam- 
 ages is the punishment of the wrong-doer, 
 and as an example whereby others may be 
 deterred from the commission of like wrongs : 
 Ward V. Ward, 41-686 ; Soot v. Sturdivant, 
 70 . 
 
 274. Such damages need not be limited to 
 such an amount as will operate alone upon 
 the offender in restraint of future conduct : 
 Ward V. Ward, 41-686. 
 
 275. The fact that defendant has been pun- 
 ished by fine in a criminal prosecution for 
 the same act cannot be taken into considera- 
 tion in assessing the damages: Reddin v. 
 Gates, 52-210. 
 
 276. Not allowable without actual dam- 
 age appears: "Where a party does not show 
 himself entitled to actual damages,,he can- 
 not be entitled to recover exemplary dam- 
 ages : Myers v. Wright, 44-38. 
 
 277. Discretionary: In all actions in 
 which exemplary damages are allowed, the 
 allowance thereof rests in the sound discre- 
 tion of the jury : Goodenough v. McGrew, 44- 
 670 ; Root V. Sturdivant, 70 . 
 
 278. They should not be instructed that 
 any fact should go in aggravation of exem- 
 plary damages : Goodenough i'. McGrew, 44r- 
 670. 
 
 279. The discretion of the jury is not un- 
 limited, and where, in an action to recover 
 damages for maliciously causing the levy of 
 an execution on the goods of plaintiff, the 
 actual damages shown did not exceed |50, 
 while the jury returned a verdict of .$700, 
 held, that the amount of punitive damages 
 was excessive and the judgment v.-as set 
 aside : Saunders v. Mullen, 66-728. 
 
 280. Against personal representative: 
 Although by statute a right of action for a 
 tort survives against the pei-sonal representa- 
 tiv.e of a deceased wrong-doer, yet exem- 
 plary damages cannot be awarded in an 
 action against such personal representative : 
 Sheik V. Hdbson, 64-146. 
 
 281. Financial condition of defendant: 
 
 Aside from the exceptional cases of slander 
 and breaches of promise to marry, evidence 
 of financial condition of defendant is not re- 
 ceivable even where plaintiff is entitled to 
 exemplary dama.ges: Quengerech v. Smith, 
 34-348. 
 
 Further as to defendant's financial condi- 
 tion, see supra, §§ 121-125. 
 
 282. When proper: There must be proof 
 of fraud, malice, gross negligence or oppres- 
 sion to entitle plaintiff to exemplary dam- 
 ages: Williamson v. Western Stage Co., 24- 
 171. 
 
 283. Allowable for gross negligence: 
 Exemplary damages may be allowed against 
 the proprietor of a stage-coach who has been 
 grossly negligent in the employment of a 
 known drunken driver, from which injury 
 to the plaintiff has resulted. In such a case 
 intent with design to do the injury need not 
 appear: Frinh v. Coe, 4 G. Gr., 555. 
 
 284. In an action for gross negligence in 
 the treatment of a disease the recovery is 
 not limited to actual damages, but the jury 
 may allow such further damages as they 
 think proper under the circumstances: Coch- 
 ran V. Miller, 13-128. 
 
 285. Malice essential: Exemplary dam- 
 ages cannot be recovered unless malice is 
 averred and proven ; Johnson v. Chicago, R. 
 I. & P. R. Co., 51-25 ; Jones v. Marshall, 56- 
 739. 
 
 286. The recovery of exemplary damages 
 should be made dependent upon malice of 
 the wrong-doer. It is not sufficient that it 
 appear that the wrongful act was wilfully 
 done: Curl v. Chicago, R. I. <& P. R. Co., 
 63-417. 
 
 287. Evidence of malice: To warrant the 
 jury in inflicting damages by way of punish- 
 ment, it should be shown that the wrong 
 was wilful and malicious. There must be a 
 purpose to harass or injure another. It is 
 not sufficient that defendant had good reason 
 to believe his act wrongful : Inman v. Ball, 
 65-543. 
 
 288. Therefore, where goods were taken 
 under a chattel mortgage which it was 
 claimed were not covered thereby, and the 
 mortgagee, who was not present when they 
 were taken, and did not know of the fact, 
 offered to return them if they could be 
 
550 
 
 DAMAGES, IV, V. 
 
 Nominal. — Liquidated; penalty. 
 
 identified, held, that exemplary damages as 
 against him were without warrant : Ibid. 
 
 289. Malice is implied from the doing of 
 an unlawful and injurious act with a wrong 
 motive, and the allegation that a wrongful 
 act is wilfully done means more than that 
 it was merely purposely or intentionally 
 done : White v. Spangler, 68-833. 
 
 290. Where an officer deposited public 
 money in his individual name, and his cred- 
 itor, knowing the nature of the fund, caused 
 it to be used and applied to his debt, held, 
 that he did not thereby render himself liable 
 for exemplary damages: Long v. Emsley, 
 57-11. 
 
 291. As bearing upon the question of mal- 
 ice, all the circumstances surrounding the 
 transaction as a whole may be introduced. The 
 intent to assault may be inferred from the 
 excessiveness of the battery Virhich immedi- 
 ately followed : Reddin v. Gates, 52-310. 
 
 292. Advice of counsel will go to rebut 
 the idea of malice, but defendant must prove 
 that he submitted the case to an attorney, 
 and was advised by said attorney that he 
 had a good cause of action. If this fact is 
 proved it will defeat exemplary but not act- 
 ual damages : Raver v. Webster, 3-502. 
 
 293. Trespass: Whether plaintiff, in an 
 action of trespass upon real property, can re- 
 cover exemplary damages, qucerc: Arm- 
 strong V. Iowa Falls db S. C. R. Co., 34-503. 
 
 294. Malice, such as to warrant punitive 
 damages, is not to be inferred from the mere 
 fact of an unintentional trespass upon unin- 
 closed and unimproved land: Kiernan v. 
 Heaton, 69-136. 
 
 295. The mere fact that a trespass is un- 
 lawful does not give rise to a presumption of 
 malice warranting the assessment of exem- 
 plary damages : Brown v. Allen, 35-306. 
 
 IV. Nominal damages. 
 
 290. When alloived: When a right is in- 
 vaded or a wrong done and no particular 
 damage is proved, the law implies or infers 
 nominal damages: Foster v. Elliott, 33-216. 
 
 297. Failure of the jury to award nominal 
 damages to a party entitled thereto wUl not 
 be a ground for a new trial where substantial 
 justice has been done : Watson v. Van Meter, 
 43-76. 
 
 29S. Nor will such failure to award npmi- 
 nal damages, if plaintiff is entitled to no 
 more, be sufficient ground for reversing a 
 judgment : Portman v. Klemish, 54-198 ; Row- 
 ley V. Jeivett, 56-492; Phenix Ins. Co. v. 
 Findley, 59-591 ; Wire v. Foster, 63-114; Wat- 
 son V. Moeller, 63-161; Norman v. Winch, 
 65-363 ; Case Threshing Machine Co. i\ Haven, 
 65-359. 
 
 299. Although failure to allow nominal 
 damages is not a gi-ound on which a judg- 
 ment can be revei-sed, yet where a verdict for 
 actual damages is set aside upon motion in 
 arrest of judgment, when nominal damages 
 might properly have been recovered, such ac- 
 tion of the court will be held erroneous upon 
 appeal: Carl v. Granger Coal Co., 69-519. 
 
 300. Instructions: Where an instruction 
 was to the effect that the plaintiff might re- 
 cover the actual damage sustained, and nom- 
 inal damage if the wrongful acts had been 
 proved, held, that the instruction was not 
 misleading as limiting all the damage to nom- 
 inal damage: Bradley v. Redmond, 43-453. 
 
 V. ElQUIDATED damages; PENALTY. 
 
 301. How distinguished: The sum named 
 in a bond w-ill be treated as a penalty or as 
 liquidated damages, dependent upon the nat- 
 ure of the agreement, the sun-ounding cir- 
 cumstances, the intention of the parties, and 
 the reason and justice of the case : Beard v. 
 Delaney, 83-16. 
 
 302. Though the parties may call the sum 
 fixed a penalty, or give it no name, or style 
 it liquidated damages, the court will construe 
 the stipulation as the one or the other, de- 
 pending upon the nature of the agreement, 
 the intention of the parties, and other facts 
 and circumstances : Foley v. McKeegan, 4-1 ; 
 Mclntire v. Cagley, 37-676; Wolf v. Des 
 Moines <& Ft. D. R. Co., 64-380. 
 
 303. Whether the sum mentioned shall be 
 considered as the one or the other is a matter 
 of construction, in which the court may be 
 aided by matter extraneous to the writing: 
 Foley V. McKeegan, 4-1. 
 
 304. But if it is doubtful whether the par- 
 ties intended that the sum specified should 
 be a penalty or liquidated damages, courts 
 incline to treat the contract as creating a 
 penalty to cover the damages actually bub- 
 
DAMAGES, V. 
 
 551 
 
 Liquidated; penalty. 
 
 tained by breach, of the stipulation, and not 
 as liquidated damages: Ibid. 
 
 305. Where a contract contains covenants 
 for the performance of several things, and 
 one sum is stated as the amount to be 
 jmid upon a breach of the contract, and 
 the things to be performed are of unequal 
 value, the sum designated must be consid- 
 ered as a penalty: Ibid.; Lord v. Gaddis, 
 9-265. 
 
 308. Held, that a stipulation in a note that 
 the maker should pay an attorney's fee of 
 ten per cent., was in the nature of liquidated 
 damages and not a penalty: Mclntire v. 
 Cagley, 37-676. 
 
 .SO 7. Where from the nature of a contract 
 the extent of damages which would result 
 from a breach thereof is difficult or impos- 
 sible of ascertainment, the fact that the par- 
 ties have deliberately named a sum which 
 should be treated as liquidated damages on 
 the happening of the breach, is of the highest 
 importance in determining the question. The 
 fact that the nature of the contract is such 
 that breach thereof would cause damages 
 Jind injury which would be matters of mere 
 (wnjecture is also to be taken into account: 
 Wolf V. Des Moines & Ft. D. R. Co., 64- 
 380. 
 
 308. Therefore, where, in a conti-act for 
 the construction of a railroad, it was stipu- 
 lated that the company might, upon the ter- 
 mination of the contract on account of failure 
 of the contractor to comply with its provis- 
 ions, retain ten per cent, of the contract 
 price, as liquidated damages, held, that the 
 sum thus provided for should be treated as 
 liquidated damages and not as in the nature 
 of a penalty : Ihid. 
 
 30!). Where a contract in the form of a 
 promissory note, payable in one hundred 
 bushels of corn, concluded with the provis- 
 ion: "Ohio corn is estimated at twenty 
 dollars,"' ?ieW, that the damages for non-per- 
 formance %veie intended to be stipulated at 
 twenty dollars, which sum, and not the value 
 of the corn at the time iixed for delivery,- 
 was the measure of damages; Hise v. Foster, 
 17-23. 
 
 310. The law, of itself, attaches to the 
 breach of every contract the right to recover 
 proper damages ; and the fact that the parties 
 have expressly provided for the payment of 
 
 some of the damages cannot be construed as 
 a waiver of the right to recover other dam- 
 ages which the law permits : Nowlin v. Pyne, 
 40-166. 
 
 .Sll. Where, on the sale of the good- will 
 of a business, the seller entered into a bond 
 stipulating a certain sum to be paid as dam- 
 ages in case of his resuming business within 
 the same town, held, that the amount named 
 must be treated as liquidated damages and 
 not aa penalty, the actual damage which 
 would be sustained being in its nature a mere 
 matter of conjecture: Stafford v. Shortreed, 
 63-524. 
 
 312. Also, held, in such case, that the only 
 remedy for breach of the conditions of the 
 bond was by an action thereon, and that the 
 purchaser of the good-will could not have 
 an injunction to prevent a violation of thi; 
 conditions: Ibid. 
 
 313. Where a penalty is inserted for the 
 breach of a contract, the pai'ty has an elec- 
 tion to proceed upon the contract without 
 regard to the penalty, and his recovery will 
 not be limited by the amount of the penalty : 
 Foley V. McKeegan, 4-1. 
 
 314. In case of a contract for the payment 
 of money simply, a stipulation to pay a iixed 
 sum in default of performance by the obligor 
 will be regarded as a penalty and not as a 
 covenant for liquidated damages; and it 
 makes no difference that the payment is to 
 be made to a party other than the one with 
 whom the contract is made : Kuhn v. Myers, 
 37-351. 
 
 815. Where parties contracted for the de- 
 livery of a certain number of ties, which 
 were to be paid for as the work progi'essed 
 upon au estimate of the ties delivered, less 
 ten per cent, of the contract price, to be 
 retained as security for the completion of 
 the contract, held, that the ten per cent, 
 reserved was a penalty to cover actual 
 damages, and was not intended as liqui- 
 dated damages: Jemmison v. Gray, 29- 
 587. 
 
 31G. Usury: No damages for the mere 
 non-payment of money can ever be so liqui- 
 dated between the parties as to evade the 
 provisions of the law fixing the rate of inter- 
 est: Oowerv. Car tar, 3-244. 
 
 As to penalty in bonds, see supra, g§ 136- 
 128. 
 
552 
 
 DEDICATION. 
 
 "What constitutes. 
 
 DEDICATION. 
 
 1. Highways existing by: A highway 
 may exist in this state arising froni dedica- 
 tion and prescription, notwithstanding the 
 provisions of the statute for the establisli- 
 ment of highways : Hosier i-. Vincent, 34-478 ; 
 Baldwin v. Herbst, 54-168. 
 
 2. In parol: There may be a dedication to 
 public use without deed or otlier written evi- 
 dence, but in such case the intent to dedicate 
 should be clear, and the acts and circum- 
 stances relied on to establish such intention 
 unequivocal and convincing: Morrison v. 
 Marquardt, 24-35. 
 
 3. The mere oral declarations or acts of an 
 owner of property will warrant the pre- 
 sumption of a dedication, though followed 
 by public enjoyment for ever so short a time, 
 the time of enjoyment being immaterial : 
 Fisher v. Beard, 32-346. 
 
 4. Parol evidence showing the existence of- 
 a highway by proof of dedication or by acts 
 in pais showing a, right in the public arising 
 from prescription is not secondary but pri- 
 mary evidence : Master v. Vincent, 34-478. 
 
 5. Dedication ill pais ; evidence: Dedica- 
 tion in pais is sufficient to establish a high- 
 way, in the absence of grant or dedication 
 by matter of record: Getchell v. Benedict, 
 57-121. 
 
 6. Taxation of land which is adversely 
 used as a highway will not destroy the ease- 
 ment which the public holds by vu-tue of 
 such adverse use, but if the owner is in pos- 
 session holding adversely to the public, the 
 levy of taxes would be inconsistent with the 
 claim that it is ajpublic highway: Ibid. 
 
 7. The fact that a person holds title to 
 property as described in a plat in which a 
 certain highway claimed by prescription is 
 not recognized does not estop him from as- 
 serting, as one of the public, his rights in 
 such highway : Ibid. 
 
 8. Where there were facts sufficient to 
 show a dedication in pais before the filing of 
 the plat of a city, held, that the owner could 
 not by the filing of sucli plat limit the dedi- 
 cation already made : Ibid. 
 
 9. Declarations of a party holding an estate 
 upon condition which may become void upon 
 the failure of the grantee to comply with the 
 terms of the grant may be shown to estab- 
 lish an animus dedicandi in connection with 
 
 acts of the party after the title has reverted 
 to him : Ibid. 
 
 10. A highway may derive its existence 
 from the dedication of the land over which 
 it passes to the public use by the owner of 
 the soil, and the acceptance thereof by the 
 public for such use. No particular formality 
 is required. Any act of the owner clearly 
 indicating an intention to dedicate is suffi- 
 cient : Wilson v. Sexon, 37-15. 
 
 11. No particular form is necessary for the 
 dedication of land for a highway. Dedica- 
 tion is a conclusion of fact to be di-awn by 
 the jury from the circumstances of each case, 
 and the question as against the owner of the 
 soil is, whether the animus dedicandi suffi- 
 ciently appears from all the facts : Mander- 
 schid V. Dubuque, 29-73. 
 
 13. Use by the public for any period of 
 time is not the only circumstance that will 
 raise a presumption of dedication. Other 
 facts may be shown from which an intention 
 to dedicate may be inferred : Ibid. 
 
 13. Unless there is' something to indicate 
 otherwise, it wUl be presumed that a street, 
 opened and constructed by the owner of land 
 in a city, was established with a view of ded- 
 icating it to public use : Ibid. 
 
 14. The fact that a party owns land on 
 both sides of a highway used by the public, 
 and permits such use, does not prove a dedi- 
 cation by him : Davis v. Clinton, 58-889. 
 
 15. Where commissioners, appointed to 
 make partition of real estate, treated a por- 
 tion of the property as part of the public 
 street, and made partition of the remainder, 
 held, that the acceptance of the partition by 
 the parties estopped them from denying that 
 the portion not divided was a portion of the 
 street : McGregor v. Reynolds, 19-228. 
 
 16. The fact that a road is established and 
 traveled by the public as a public highway, 
 and recognized by the county authorities and 
 supervisors as an estabUshed road, and that 
 bridges are built thereon by them, is suiB- 
 cient, until rebutted, to show the existence 
 and public character of the road in an action 
 against the county for injuries received 
 thereon : Brown v. Jefferson County, 16-339. 
 
 1 7. Where it appeared that a highway was 
 opened by the owner of the land for a pub- 
 lic highway and that the public used it, and 
 that repairs were made thereon by the road 
 
DEDICATION. 
 
 553 
 
 Acceptance, 
 
 supervisor, held, that it must be regarded as 
 a highway established by dedication : Oerber- 
 ling V. Wunnenberg, 51-135. 
 
 18. Where the owner of land through 
 which a way had been traveled for a long 
 period of years entei-ed into an agreement 
 with his neighbors that if they would build a 
 portion of the fence necessary to inclose his 
 land along such highway, he would permit it 
 to be used as a highway as long as it should 
 be wanted, held, that such agreement showed 
 the animus dedicandi, and that the right 
 of way was thereby established: Hugh v. 
 Haigh, 69-382. 
 
 19. Where, by request of the land-owner, 
 the supervisor in opening an established high- 
 way deflected therefrom upon the land of 
 such owner, and the road as thus opened was 
 used and worked by the public, held, that the 
 action of the owner amounted to a dedication 
 as to that portion outside of the established 
 highway : Ryan v. Kennedy, 63-37. 
 
 20. Where a highway is regularly laid out, 
 a use slightly different from the line as estab- 
 lished cannot be claimed by dedication. The- 
 f act that the road is established in the or- 
 dinary manner is conclusive that there is no 
 dedication: State v. Welpton, 84-144. 
 
 2 1 . The fact that a highway is dedicated to 
 the public in lieu of another highway over 
 the same owner's land which dedicator be- 
 lieves to be a valid and legal highway, when it 
 is not, will not authorize the rescission of the 
 dedication after improvement and use by the 
 public of the new highway. The abandon- 
 ment of the de facto road and the surrender 
 of the inchoate but valuable right of the pub- 
 lic therein render the new road one de Jure, 
 not to be questioned by the dedicator in an 
 action of trespass. Whether he could have re- 
 lief in equity upon putting the public in 
 statu quo. qucere: Marratt v. Delhi, 37-250. 
 
 22. Long use and long acquiescence in such 
 use by the owner of the land are in them- 
 selves evidence of dedication. How much 
 weight they are entitled to depends upon 
 the situation of the land, the nature of the 
 right claimed and exercised by the public, 
 knowledge of the owner, etc. : Onstott v. 
 Murray, 33-457. 
 
 23. The essential elements of a dedication 
 are animus dedicandi and use by the public. 
 Unless both are shown, a highway by dedica- 
 
 tion is not established: Bradstreet v. Dun- 
 ham, 65-248. 
 
 34. Acceptance by public: To sustain a 
 highway by dedication it is necessary to show 
 dedication by the owner of the soil and ac- 
 ceptance of the highway as dedicated by the 
 public: Manderschid v. Dubuque, 29-73; 
 State V. Tucker, 36-485 ; State v. Green, 41-693. 
 
 25. Acceptance of the grant by the public 
 is quite as essential to the establishment of 
 a highway as dedication by the owner. The 
 public is not bound to accept the whole of 
 the grant, but if it accepts a portion thereof, 
 using and improving it, and the remainder 
 continues to be inclosed and used for the 
 period of prescription, a right to the inclosed 
 portion does not vest in the public : Bell v. 
 Burlington, 68-396. 
 
 26. Especially is proof of acceptance nec- 
 essary in an action for negligence in keeping 
 the highway in repair : Manderschid v. Du- 
 buque, 39-73. 
 
 27. Acceptance may be shown by the fact 
 of puhlic use, repairs, etc. , and the same pre- 
 sumptions as to acceptance arise from such 
 use in an action against a municipal corpo- 
 ration for negligence as in an action against 
 the land-owner for obstructing the highway : 
 Ibid. 
 
 28. In an action for injuries resulting from 
 negligence of a municipal corporation in 
 keeping a highway- in a safe condition, evi- 
 dence of repau-s made by the corporation sub- 
 sequent to the injury is competent as tending 
 to show that the city had previously accepted 
 the highway as dedicated : Ibid. 
 
 29. Acceptance may be shown by a gen- 
 eral public use or by taking charge of or re- 
 pairing the highway by the proper aiithori- 
 ties. In a particular case, held, that there 
 was not sufiS.cientuse or taking charge of the 
 highway by public authority to constitute an 
 acceptance : State v. Tucker, 36-485. 
 
 30. Where the streets, as indicated on a 
 plat from which lots were sold, were over 
 hilly, rough land, and were not unproved and 
 used by the public for that reason for more 
 than thirty years, held, that an improvement 
 and use after the expiration of that time was 
 sufficient to constitute an acceptance of the 
 dedication : Shea v. Ottumwa, 67-39. 
 
 31. Prescription; use: A public high- 
 way cannot be supported upon prescription, 
 
554 
 
 DEDICATION. 
 
 Prescription distinguished. 
 
 using the word in its technical sense. Pre- 
 scription can only be for things which may 
 be created by grant, and as there can be no 
 grant to the public, therefore the public can 
 liold no right by prescription. However, 
 long and uninterrupted occupation by the 
 public as a highway is evidence of its dedi- 
 cation to the public use, and upon evidence 
 of this character a highway may be sup- 
 ported: State V. Kansas City, St. J. & C. 
 B. R. Co., 45-139. 
 
 32. The distinction between dedication and 
 prescription is this : The former is estabMshed 
 by proof of an act of dedication and of the 
 animus dedicandi, without reference to the 
 period of use, while in the latter long user is 
 an essential ingredient : Ibid. 
 
 33. The use and occupancy of the premises 
 as a highway for a sufficient length of time 
 under a claim of right gives to the public the 
 right to continue such use : Overman v. May, 
 35-89. 
 
 34. To establish a highway by prescription 
 there must be an actual public use, general, 
 uninterrupted, and continued for the period 
 of the statute of limitations under a claim 
 of right: State v. Tucker, 36-485; State v. 
 Green, 41-693. 
 
 35. In a particular case, held, that the use 
 was not sufficiently public or general, or 
 under claim of right, to establish a highway 
 by prescription : State v. Tucker, 36-485. 
 
 36. The use must be of such character and 
 affected with such circumstances as to evi- 
 dence a claim of the public of a right to do 
 so, such as exercising jurisdiction over the 
 road, working it, or spending money in its 
 repair : State v. Green, 41-693. 
 
 37. In a particular case, held, that the ex- 
 istence of gates and bars upon a road was 
 sufficient to show that pubho use thereof 
 was not under a claim of right and that there 
 was no intention to dedicate the I'oad as a 
 public highway : Ibid. 
 
 38. Erection of fences or bars by the owner 
 of the fee across the road will not, without 
 maintaining them a sufficient time, abso- 
 lutely rebut the presumption of dedication or 
 prescription, but it would tend in that way : 
 Baldwin v. Herbst, 54-168. 
 
 39. Where the sole question is whether 
 the highway has been established by uninter- 
 rupted and constant use for the period of 
 
 limitation, the question of necessity becomes 
 altogether unimportant except in so far as it 
 may reflect light upon and explain the nat- 
 ure of the use: Hougham v. Harvey, 40- 
 634. 
 
 40. Much stronger evidence of a prescrip- 
 tive right by the public is required where the 
 road is a mere local or neighborhood road 
 tlian if it were a thoroughfare or part of an 
 aclinowledged highway between towns or 
 leading to a town and as such constantly 
 traveled: Ibid. 
 
 41. In a particular case, where the road 
 extended through unimproved and vacant 
 land between a creek and inoiosed prairie, 
 and the travel was confined to no part of the 
 line, but constantly changed and varied, and 
 it appeared that it was never improved and 
 was at various times interfered with without 
 objection, held, that sufficient use to estab- 
 lish a prescription was not shown : Ibid. 
 
 42. Where the pubhc has traveled and used 
 a road different from the established high- 
 way for the period of prescription, it aoquii-es 
 a right by prescription in the road thus trav- 
 eled : Kelsey v. Furman, 36-614. 
 
 43. In an action to enjoin a supervisor 
 from removing a fence under a claim that it 
 was in the public highway, held, that the 
 fact that a fence in the same location was 
 built at the time the highway was laid out, 
 twenty years previous, and was then on the 
 line of the highway, was sufficient evidence 
 to support plaintiff's claim, although by sub- 
 sequent location of the highway from field- 
 notes, the fence appeared to be within the 
 highway : Cattell v. Wilhelm, 39-288. 
 
 44. Presumption as to width; There is no 
 presumption that a highway originating by 
 prescription is of the .width required for 
 a highway laid out by the state. The width 
 of such highway is a question of fact for the 
 jury to determine from the facts and circum- 
 stances. The court cannot, as a matter of, 
 Law, say that the road acquired by prescrip- 
 tion or use is of any particular width beyond 
 such portion as is actually used by the pub- 
 lic : Davis v. Clii}ion, 58-389. 
 
 45. And where, in the dedication of a 
 highway, it was stipulated that it should be 
 established as it had been used, the width 
 would be that of the way as it should be 
 found to be: Hwgh v. Haigh, 69-383. 
 
DEDICATION. 
 
 555 
 
 Use as evidence of adverse possession ; knowledge. 
 
 40. Use as evidence of ndverse posses- 
 sion: Although adverse possession cannot be 
 established by use alone (Code, § 2031), it 
 may be established by showing dedication, 
 and use immediately following such dedica- 
 tion: Oerberling V. Wunnenberg, 51-125. 
 
 47. Under the statutory provision just re- 
 ferred to, it is not sufficient, in order to prove 
 a highway by prescription, to establish use 
 alone. The fact of adverse possession must 
 be shown by evidence distinct from and in- 
 dependent of the use, and it must be shown 
 that the person against whom the claim is 
 made had express notice thereof : Zigefoose 
 V. Zigefoose, 69-391; StaUv. Mitchell,n9r-5&1. 
 
 4S. The statutory provision that use shall 
 not be admitted as evidence of adverse pos- 
 session does not apply to highways existing 
 by prescription before the statute took effect ; 
 Baldwin v. Herbst, 54-168. 
 
 49. An instruction as to the amount of use 
 necessary to establish prescription and dedi- 
 cation, to the effect that no particular amount 
 of travel would be necessary, and that the 
 use would be sufficient if the highway was 
 traveled as much or about as much as it 
 would have been had it been laid out accord- 
 ing to statute, and traveled as much as the 
 circumstances of the surrounding population 
 and their business required, held correct : Ibid. 
 
 50. Knowledgre, aciiuiescence or consent 
 of the land-owner: Dedication of a highway 
 to the public may be established by use for 
 more than ten years by the public and the 
 mere acquiescence therein by the owner: 
 Gear v. Chicago, O. & D. R. Co., 39-23. 
 
 51. Long use by the public and work done 
 upon the highway from the time of such use 
 with the knowledge and consent of the land- 
 owner is sufficient evidence of the dedica- 
 tion : Hougham v. Harvey, 33-203. 
 
 52. In order that use of the highway for 
 the period of prescription shall give rise to 
 the presumption of dedication, it must be 
 shown that such use was with knowledge of 
 the owner : Daniels v. Chicago <Ss N. W. B. 
 Co., 35-129; State v. Green, 41-693. 
 
 63. But l^nowledge of an agent who has 
 no such authority as would make a grant of 
 the easement by him in the name of the 
 owner valid will not constitute sufficient no- 
 tice: Daniels v. Chicago & N, W. B. Co., 35- 
 139. 
 
 54. The fact that the owner for a long 
 time permits the public under a claim of 
 right to use the land authorizes the inference 
 that such use was commenced and continued 
 with his consent ; but the knowledge of the 
 use must be proved, or there must be suffi- 
 cient ground on which the law can raise a 
 presumption that the owner had known of 
 the use to which his land was devoted : State 
 V. Kansas City, St. J. & C. B. B. Co., 45-139. 
 
 55. Long-continued notoi-iety of the fact 
 of use is usually sufficient to raise a presump- 
 tion of law that persons affected thereby or 
 interested therein had full notice of the mat- 
 ter. But in the case of wild and unin- 
 closed land, and especially where the owner 
 is a non-resident or resides at a distance, 
 notorious use as a highway will not be pre- 
 sumed to have been known to him. User 
 alone, therefore, of uninclosed or wild prairie 
 or timber land will not support a prescrip- 
 tion : Ibid. 
 
 56. If the public, with the knowledge of 
 the owner, has claimed and continuously ex- 
 ercised the right to use the land for a public 
 highway for a period equal to that fixed by 
 the statute for bringing action of ejectment, 
 its right to the highway is complete, in the 
 absence of proof that the road was so used 
 by leave, favor or mistake. But the land- 
 owner is not concluded, who, without knowl- 
 edge that a claim of right is being asserted 
 on the part of the public, allows Ins neigh- 
 bors to pass over his land for their mere ac- 
 commodation, to obtain fuel and for like 
 purposes. In determining whether there is 
 an implied or presumed acquiescence on the 
 part of the owner, very much depends upon the 
 location of the road, the amount of travel, 
 the nature of use by the public, the rights 
 asserted by it, the knowledge of the owner, 
 and like circumstances : Onstott v. Murray, 
 22-457. 
 
 57. Use by mistake; Where the public use 
 a way supposed to be on a certain line laid 
 out, but iwhich by mistake is not on such 
 line, the claim of right is confined to the line 
 as laid out, and a use beyond such line is not 
 adverse: State v. Welpton, 34-144; State v. 
 Gould, 40-372; State v, Schilb, 47-611. 
 
 58. Non-user: Where a highway is estalv 
 lished by proper and legal authority, mere 
 non-user thereof will not operate to defeat 
 
DEDICATION. 
 
 For streets, public grounds, etc., in city. 
 
 it, especially where there is no use of the 
 premises adverse to that in the public : Davies 
 V. Huebner, 45-574. 
 
 5!). But where a portion of a highway 
 legally established, but never actually opened, 
 was inclosed and cultivated and adversely 
 occupied by adjoining land-owners for more 
 than ten years, held, that the right of the 
 public in such portion of the highway was 
 thereby extinguished : Ibid. 
 
 60. Where a highway was established 
 across certain lands by the written consent of 
 the owner, and seven years afterwards he 
 sold the land to plaintiff, and it appeared 
 that during this time the land was inclosed 
 and used as a part of the farm, and so con- 
 tinued to be used by plaintiff for seven years 
 longer, the travel going a little aside from 
 the land for the purpose of crossing a stream 
 at a ford, the stream not being fordable at 
 the point where the established road crossed 
 it, held, that the right of the public in the 
 highway as established was not lost, there 
 being nothing to indicate a, holding by the 
 original owner, at any time after such grant, 
 adverse to the public : Wenzel v. Kempmeier, 
 53-255. 
 
 01. Dedication for street, public grounds, 
 etc, in city: Where the general government 
 as owner laid off land into lots, streets, 
 squares, etc., for a city and sold lots ac- 
 cording to such plan, held, that the sale and 
 conveyance implied that a grant or covenant 
 to the purchasers of the lots that the streets 
 and public squares should forever be open to 
 the public, free from all claims of proprietors 
 inconsistent with such use, but that the dedi- 
 cation did not operate as a grant to the city 
 of the fee in the streets, and that such fee 
 title passed to the adjoining property owners, 
 subject to the easement of the public, with 
 the power in the city to regulate the public 
 use of such streets and squares, as the repre- 
 sentative of the public, for the purpose of 
 vindicating the public right: Dubuque v. 
 Moloney, 9-450. 
 
 C2. Where, by act of congress, certain land 
 in front of a street leading to a navigable 
 river was reserved from sale for public use, 
 with the declaration that it should remain 
 forever free for highways and other pur- 
 poses, held, that such dedication was in the 
 nature of a contract which could not be 
 
 afterwards abrogated or repealed, and that 
 the municipal corporation, succeeding to the 
 title of the land thus reserved, held it for the 
 same purposes and could not divert it for 
 other purposes : Cook v. Burlington, 30-94. 
 
 63. Where the owner of land laid out an 
 addition to a city and by the plat donated 
 and granted the " streets, alleys and public 
 grounds, etc., for public purposes," and desig- 
 nated a tract of ground next to the river as 
 "Reserved Landing," held, that the city did 
 not by such donation acquire the right to the 
 property so reserved: Grant v. Davenport, 
 18-179. 
 
 64. Where the plat of a town contained a 
 square designated "public square," and lots 
 were sold on the faith of such plat, and after- 
 wards another plat was duly made and 
 recorded changing the designation of the 
 square, with the representation to prior lot 
 purchasers that it was for the public use and 
 control, and the city took possession of the 
 square as public property, held, that the cor- 
 poration had the title to such square for the 
 use of the public and in trust for it: Fella v. 
 Scholte, 31-463. 
 
 65. Where a square was marked upon a 
 plat as " market square," and thereafter 
 treated by the city as public, and was for 
 that reason omitted from taxation, which 
 facts were known to the dedicator and those 
 claiming under him, held, that the circum- 
 stances showed an intention to dedicate such 
 square to the public: Seott v. Des Moines, 
 64-438. 
 
 66. Also held, in such case, that the desig- 
 nation of the square as " market squai'e" 
 did not show an intention to impose on the 
 dedication a condition that it be used only 
 for market purposes and that a market 
 building be erected thereon: Ibid. 
 
 67. A dedication of a portion of land 
 covered by a city plat for public purposes, as 
 by marking it " public square," which dedi- 
 cation is accepted by the city, imposes upon 
 the city an obligation to hold the property in 
 trust for the uses and purposes expressed, 
 and the city cannot divert it to another and 
 different use, as by selling it to private own- 
 ers : Warren v. Mayor of Lyons City, 22-351. 
 
 68. Where a plat contained a square 
 marked " church square," held, that such 
 designation did not constitute a dedication 
 
DEDICATION — DEFAULT, I. 
 
 557 
 
 Platting of streets. — "When party deemed in default. 
 
 to any particular church association although 
 but one such association existed at the time 
 in the town: Christian Church v. Scholte, 
 3-27. 
 
 69. Under the evidence in particular cases, 
 held, that subdivisions of plats marked as 
 " square," or " public square," were dedicated 
 to the public: Livermore v. Maquoketa, 35- 
 358 ; Bayliss v. Supervisors, 5 Dillon, 549. 
 
 70. Where lots are sold with reference to 
 a town plat, upon which certain land is ded- 
 icated to public use, the purchasers acquire, 
 as appurtenant to their purchases, a vested 
 right to the use of the land dedicated to pub- 
 Uo use, of which they cannot be divested by 
 the owner who made the dedication, or by 
 the town in its corporate capacity : Leffler v. 
 Burlington, 18-361. 
 
 71. Where lots were sold in accordance 
 with a plat upon which a certain square was 
 marked "public square," and afterwards 
 "garden square," and with the representa- 
 tion that the square was for the public, and 
 was to remain forever an open and unoccu- 
 pied space, and the value of lots sold was 
 increased thereby, held, that a purchaser 
 could enjoin the grantees of such square from 
 platting lots and erecting buildings thereon : 
 Fisher v. Beard, 40-625. 
 
 72. Platting of streets: Where a plat 
 shows the dedication of two streets at right 
 angles to each other, the square formed by 
 their intersection will be presumed to be in- 
 cluded in the dedication : Tost v. Leonard, 
 34-9. 
 
 73. To make out a dedication of a street 
 appearing on a plat, it is necessary to show, 
 not only that the plat was laid out, but also 
 that the party laying it out had title 
 thereto : Porter v. Stone, 51-373. 
 
 74., Dedication in a town plat lield suffi- 
 cient, in a particular case, to convey the fee 
 in a street indicated thereon : Stange v. Hill 
 & West Dubuque St. R. Co., 54-669. 
 
 75. Evidence in a particular case, held not 
 sufficient to establish a dedication of a street 
 which was shown by the last of three plats 
 filed, but not by the first two under which 
 the rights of the parties attached: Manchester 
 v.Hoag, 66-649. 
 
 76. When lots are sold on a plat bounded 
 by a street or highway, that fact raises a 
 strong presumption of the intent to pass tlie 
 
 soil to the center of the street or highway, 
 and it will so pass unless the highway be ex- 
 pressly excluded : Dubuque v. Moloney, 9-450. 
 
 77. But this rule is not applicable to land 
 reserved for public use on the opposite side of 
 the highway from the lots thus sold, and the 
 lot purchaser acquires no title to the land 
 thus reserved : Cook v. Burlington, 30-94. 
 
 78. Where the owner of land on both sides 
 of a section line platted the portion on one 
 side, locating a street on such line, held, that 
 the dedication covered the entire width of the 
 street : McDunn v. Des Moines, 34-467. 
 
 79. The existence of a plat, even though 
 defective, and the sale of lots, bounded ac- 
 cording to its descriptions, by the persons 
 platting the land, establish the animus ded- 
 icandi as to the streets laid out on such plat, 
 which, when shown, is sufficient to establish 
 a way or street, even thougli there be no rec- 
 ord of such plat made in the form prescribed 
 by law : Shea v. Ottumwa, 67-39. 
 
 DEED. 
 
 See Conveyance. 
 
 DEED OF TRUST. 
 
 See Trusts. 
 
 DEFAULT. 
 
 I. When party deemed in default. 
 II. Setting aside default. 
 III. Effect of default; judgment. 
 
 I. When paety deemed in default. 
 
 1. What constitutes: When a party seeks 
 to prevent his adversary from a hearing 
 upon the merits, he ought to show that such 
 adversary has failed to comply with some 
 statute or some special or general rule of 
 court : Wright v. Howell, 24-150. 
 
 2. Failure to fiie pleading: A pleading 
 is in time to prevent default if filed previous 
 to the actual entering of the default, in the 
 absence of express rules to the contrary: 
 Davis V. Brady, Mor., 101. 
 
 3. Where an answer was filed some eight- 
 een days after the time allowed for filing of 
 answer by agreement of parties, but some 
 
558 
 
 DEFAULT, I. 
 
 When party deemed in. 
 
 months before the next term of court, and 
 in answer to an amended petition setting up 
 a new cause of action, and in pursuance of 
 an order of court made in vacation upon ap- 
 plication extending the time, but without 
 notice to the adverse party, held, that there 
 was no abuse of discretion on the part of the 
 court in refusing to grant default on motion : 
 Redfleld v. Miller, 59-393. 
 
 4. Under the showing in a particular case, 
 held, that it was not error to refuse a motion 
 for default for want of answer and allow an 
 answer to be filed: Walker v. Hutchinson, 
 50-364. 
 
 5. In a suit Against joint defendnnts: 
 Judgment by default should not be entered 
 in an equitable action against a portion of 
 defendants when one of them has on file a 
 demurrer or answer going to the merits of 
 the action as to all of them: Jenkin v. 
 McCully, Mor., 447. 
 
 6. Final judgment should not be rendered 
 against one of two joint debtors by default 
 so long as an answer by one of them going to 
 the validity of the cause of action remains 
 undetermined: Campbell v. McHarg, 9-854. 
 
 And see infra, §§ 90-93, and Judgments, 
 g§ 34, 35. 
 
 7. Failure to answer an amended peti- 
 tion will be accompanied with the same con- 
 sequences as failure to plead to the original, 
 and the fact that a plea to the original is on 
 file will not prevent defendant from being in 
 default if he has been ruled to replead to the 
 amended petition : Porter v. Moffett, Mor., 58. 
 
 8. A failure to answer an amended peti- 
 tion entitles plaintiff to default as fully as if 
 the original petition had not been answered : 
 Brenner v. Oundershiemer, 14^82. 
 
 9. Where plaintiff, after the filing of an 
 answer to his unverified petition, amends the 
 same by adding a verification, defendant 
 must file a verified answer, and will be 
 deemed in default upon failing to do so: 
 Wilson V. Preston, 15-246. 
 
 10. Appearance without answer: Where 
 defendant enters a vsrritten appearance, but 
 does not file any pleading nor ask time to 
 plead, it is not error to enter defavdt and 
 judgment at once : Sfiaw v. National State 
 Bank, 49-179. 
 
 11. Where defendant who was in default 
 for want of answer was present when the 
 
 case was submitted, making no objection, 
 and there was no issue to try, held, that thn 
 case was properly heard as one of default, 
 and there being nothing to show upon what 
 evidence the case was heard, the judgment 
 would be aifirmed on appeal : White v. Kelley, 
 23-275. 
 
 12. Ncgligreiice in filing; pleadius:: Where 
 the defendant is ruled to answer by a cer- 
 tain day in vacation, if he is unable to 
 do so then, for a good reason, he should do 
 so as soon thereafter as possible ; and on a 
 motion to set aside a default for a failure to 
 answer, an excuse will not be sufficient 
 which applies to the failure to answer on the 
 day fixed, but does not apply to the failure 
 to answer subsequently, and before default 
 was taken : Thatcher v. Harm, 12-303. 
 
 1.?. An action at law being commenced to 
 recover rent by attachment, and defendant, 
 after the lapse of nearly three years, havinfc 
 filed his answer and cross-petition, the latter 
 being in equity and bringing in a new party 
 and praying affirmative relief, held, that no 
 notice having been given plaintiff, a decree 
 for defendant based upon ex parte testimony 
 should be vacated upon motion: Allen r. 
 Rogers, 27-106. 
 
 14. Failure to file pleading in vacation: 
 Where an action for an injunction was com- 
 menced during term time, and defendants 
 were required to appear and show causewhy 
 a temporary injunction should not be al- 
 lowed, and did appear and demur to the 
 petition, which demurrer was overruled, 
 held, that plaintiff was not entitled to default 
 for want of answer until the next term, 
 which was the regular appearance term of 
 the action : Matter v. Phillips, 52-232. 
 
 15. Where, by rules of court, defendant 
 was required to plead by demurrer or answer 
 iu vacation within ten days after service, and 
 upon failure to do so was to b^ regarded as in 
 default, held, that the fact that the notice 
 simply advised him that he was to answer by 
 the time therein fixed could not have misled 
 him as to the character of the pleading which 
 he was entitled to file, and that, not having 
 filed any pleading, default was properly en- 
 tered : Lyman v. Bechtel, 55-437. 
 
 16. Default as to one count; Where one 
 of several counts remains unanswered, but 
 the defense interposed as to other count" is 
 
DEFAULT, I, II. 
 
 559 
 
 When pai'ty deemed in. — Setting aside. 
 
 equally applicable to it, the refusal to grant 
 default on such count will not constitute 
 reversible error : Kinyonv. Palmer, 20-138. 
 
 17. After ruling on demurrer: Where a 
 demurrer to an answer is sustained, default 
 should not be rendered for failure to answer 
 further, in the absence of any rule or order 
 of the court fixing the time in which an 
 answer must be filed : Wright v. Howell, 34- 
 150; Rollins v. Coggshall, 29-510, 
 
 18. Defectire answer: It is erroneous to 
 render judgment by default against defend- 
 ant who has an answer on file undisposed of, 
 although it may be defective: Arbuckle v^ 
 Bowman, 6-70 ; Canal Lank v. Newberry, 7-4 ; 
 Burlington & M. R. R. Co. v. Mardiand, 
 5-468; Keeney v. Lyon, 10-546; Markey v. 
 Mettler, 1-528; Brown v. HoUenheck, 2 G. 
 Gr., 318 ; Wolff v. Hagensick, 10-590 ; Mal- 
 lory V. Sailing, 48-699; Led v. Monroe, 11- 
 458. 
 
 19. Two answers: Also held that it was 
 en'oneous to grant default, where defendant 
 had two answers on file, one of which wa.s 
 assailed by demurrer but the other remained 
 undisposed of: Crafts v. Clark, 81-77. 
 
 20. Motion on file: Jt is error to render 
 judgment by default where defendant has a 
 material motion on file: Coffin v. Kemp, 4 
 G. Gr., 119. 
 
 21. Answer not raising issue: An answer 
 denying the amount of defendant's indebted- 
 ness as claimed by plaintiff, but not denying 
 his cause of action, does not entitle defend- 
 ant to trial but leaves him substantially in 
 default : Mann v. Howe, 9-.546. 
 
 22. Failure of defendant to appear at 
 trial, when he has an answer on file, is not 
 a ground of default, but the issue should be 
 tried by a jury : Brown v. HoUenheck, 2 G. 
 Gr., 818. 
 
 23. A judgment against a defendant who 
 hf s appeared to an action and filed an an- 
 swer, but at time of trial fails to appear, is 
 not a judgment by default: Douglass v. 
 Langdon, 29-245. 
 
 24. Presumption: Where default is 
 granted upon motion, it must be presumed, 
 in support of the court's action, in the absence 
 of a showing to the contrary, that a sufficient 
 ground for the default was made to appear 
 to tbe court ; Thompson v. Savage, 43-398. 
 
 25. Party in contempt: While a party is 
 in contempt, the court may refuse to receive 
 pleadings offered by him, and treat him as in 
 default : Saylor v. Mockbie, 9-209. 
 
 26. Where defendant in a suit for divorce 
 was in contempt for failure to pay temporarj' 
 alimony as ordered by the court, held, that it 
 was error to strike his answer from the files 
 without granting leave, which he asked, to 
 show cause why he had failed to compl.y 
 with the order, and that he should have been 
 allowed to show, any excuse, such as poverty, 
 or misfortune, which would purge the con- 
 tempt. While such a.ction of the court might 
 be proper in extreme cases, it is not allow- 
 able to the same extent in case of a defend- 
 ant in a divorce suit, where it cuts off a full 
 investigation into the merits, as it would be 
 in case of a plaintiff in such an action, where 
 disobedience of such an order might well bo 
 punished by striking the petition from the files, 
 or dismissing the action : Peel v. Peel, .50-521 . 
 
 27. A party who is in contempt has no 
 right to be heard in defense of the action 
 and will be deemed in default. But this 
 rule does not apply to the mere failure to pay 
 temporary alimony awarded in an action for 
 divorce, where judgment has been entered : 
 Baily v. Baily, 69-77. 
 
 28. Filing pleading after default: The 
 answer of a defendant who is in default 
 when the answer is filed should be stricken 
 from the files on motion. Defendant is not 
 entitled to plead in such case until the de- 
 fault is set aside: Bray ton v. Delaware 
 County, 16-44; Clutev. Hazleton, 51-355. 
 
 29. Waiver of default: An answer being 
 filed after entry of default without leave of 
 court, and no steps being taken to strike the 
 answer from the files, but issue being joined 
 upon it and trial had, held, that complainant 
 waived any objection on account of defend- 
 ant's default: Jones v. Jones, 13-276. 
 
 30. The subsequent filing of an amended 
 jjetition bringing in other parties, but not 
 changing the relief asked against the defend- 
 ant in default, will not operate to set aside a 
 default : McDonald v. Donaghue, 30-568. 
 
 II. Setting aside default.' 
 
 31. On application of co-defendant: Where 
 
 a judgment by default against one defendant 
 
 ' Code, § 2871. Default may be set aside on such terms as the court may deem just, among which must be 
 that of pleading issaably and forthmth, but not unless an affldaTlt o£ merits be filed and a reasonable excuse 
 
560 
 
 DEFAULT, n. 
 
 Setting aside. 
 
 will affect the interest of a co-defendant who 
 is not in default, such judgment should be 
 set aside: Broghill v. Lash, 3 G. Gr., 357. 
 
 32. Affidavit of merits: The defendant 
 seeking to have a default set aside must 
 present an affidavit of merits, as well as a 
 reasonable excuse : Smith v. Watson, 28-318 ; 
 McDonald v. Donaghue, 30-568; King v. 
 Stewart, 48-834. 
 
 33. It is not sufficient to state generally 
 that defendant has a good and substantial 
 defense, but the facts should be stated that 
 the court may determine therefrom the ques- 
 tion of merits : King v. Stewart, 48-384 ; Jaeger 
 V. Evans, 46-188 ; MeOrew v. Doums, 67-687. 
 
 34. The party seeking to have a default 
 set aside must in an affidavit of merits set 
 out and show the facts constituting the de- 
 fense which he claims to be meritorious, to 
 the end that the court itself may adjudge 
 whether it be so. In the absence of such 
 showing it is error to set aside the default : 
 Palmer v. Rogers, 70 . 
 
 35. The filing of an affidavit of merits, 
 after the motion to set aside the default has 
 been overruled for want of such affidavit, is 
 not sufficient to cure the defect : Thompson 
 V. Savage, 43-398. 
 
 36. Grounds for setting aside default: 
 The fact that defendant failed to defend for 
 the reason that he was advised by an attor- 
 ney that he had no defense, where it appears 
 that such advice was given by the attorney 
 of the opposite party, and it does not appear 
 that the fact that the attorney giving this 
 advice was employed by the opposite party 
 was known to defendant, will be ground for 
 setting aside the default : Simmons v. Church, 
 31-284. 
 
 3 7. Where rules of court provided for the 
 filing of a copy of petition for the use of de- 
 fendant, and three days before the appear- 
 ance day defendant applied for such copy 
 and it was not on file, and he thereupon filed 
 an affidavit of such fact and asked to have a 
 copy, and to be allowed reasonable time 
 thereafter to defend, and thereafter was de- 
 tained at home by sickness for nine days, 
 lield, that upon proper application default 
 against him entered on the regular appear- 
 ance day should have been set aside : Brett 
 V. Farr, 58-443. 
 
 38. The excuse shown for having made 
 default, held sufficient in particular cases: 
 McNiilty V. Everett, 17-581 ; Willett v. Mill- 
 man, 61-133. 
 
 39. Negligence: Default should not be set 
 aside where it is the result of a party's own 
 negligence: Harrison v. Kramer, 3-543; 
 Thatcher v. Haun, 12-303. 
 
 40. Negligence or forgetfulness of coun- 
 sel: An excuse based upon forgetfulness and 
 carelessness of counsel, held not sufficient to 
 justify interference with the refusal of the 
 court below to set aside the default : State v. 
 Elgin, 11-216. 
 
 41. A party should not be relieved from 
 the consequence of his own neglect or that 
 of his attorney : Ordivay v. Suchard, 31-481. 
 
 42. "Where it appeared that the failure of 
 defendant to appear and plead was owing 
 to an oversight on the part of his attorney, 
 caused by the mislaying of papers in the 
 case, and application to set acide the default 
 was made as soon as the oversight was dis- 
 covered, and a defense was presented, held, 
 that the default should have been set aside: 
 Ibid. 
 
 43. Held a sufficient excuse for setting 
 aside a default, that tlie attorney of the party 
 in default was so ill that forgetfulness of his 
 employment in the case could not be imputed 
 to him as negligence : Montgomery County v. 
 American Emigrant Co., 47-91. 
 
 44. Agreement of parties: A judgment on 
 default should not be set aside for an alleged 
 oral understanding between the parties as to 
 the time for appearance, when such agree- 
 ment was not communicated to the court, or 
 satisfactorily and clearly established in the 
 application : Dixon v. Brophey, 29-460. 
 
 45. Sufficiency of showing: A default will 
 not be set aside merely upon the affidavit of 
 defendant that his attorney filed an answer 
 to plaintiff's petition, and that the same was 
 not marked "filed" by some accident and 
 was lost from the papers, it not being satis- 
 factorily shown that such answer was in 
 fact ever filed : Barnes v. Anderson, 19-70. 
 
 46. In a particular case, held, that the aflB- 
 davit of merits did not set up any defense, 
 and that the motion to set aside the default 
 was, therefore, properly overruled: District 
 T'p V. White, 42-608. 
 
 shown for having made such default, nor unless application therefor be made at the term in which default was 
 entered, or if entered in vacation, then on the first day of the succeeding term. 
 
DEFAULT, II. 
 
 561 
 
 Setting aside. 
 
 47. The showing of excuse in a particular 
 case held not sufficient to require a reversal 
 of the action of the court helovv in refusing 
 to vacate a judgment by default : Miracle v. 
 Lancaster, 46-179. 
 
 48. Where a showing to set aside a default 
 was sufficient as to the term to which default 
 was taken, but it appeared from the record 
 that defendant had failed to answer for more 
 than two yeai's anterior to the term in ques- 
 tion, for which no reason or explanation was 
 given, held, not an abuse of discretion to 
 overrule the motion: Kreisinger v. Icarian 
 Community, 16-586. 
 
 49. Judgment of nonsuit for failure to file 
 declarations in time may be set aside upon 
 showing of excuse: Martin v. Van Bergen, 
 1 G. Gr., 314. 
 
 50. An answer should accompany the ap- 
 plication to set aside the default : Thatcher 
 V. Haun, 12-303. 
 
 51. Defendant is required, in addition to 
 presenting an excuse for default, to plead 
 issuably and forthwith, and a statement in 
 his affidavit that he has an answer ready to 
 file will not be sufficient to show that the 
 court erred in refusing to permit him to file 
 such answer, where it does not appear what 
 the answer contained: King v. Stewart, 48- 
 334. 
 
 52. Defendant is not entitled to file his 
 answer until the default is set aside : Ibid. 
 
 53. Where default is set aside on an affi- 
 davit of merits, defendant may be required 
 to plead by answer and the court may refuse 
 to consider a demurrer : Perkins v. Davis, 
 3 G. Gr., 235. 
 
 64. Default ag.iinst garnishee for failure 
 to appear and answer should be set aside on 
 showing of slighter excuse or diligence than 
 would be necessary in case of default against 
 a defendant debtor : Evans v. Mohn, 55-302. 
 
 And see Gaenishment, §g 124-135. 
 
 55. Default improperly granted: The 
 provision requiring an affidavit of merits be- 
 fore a default shall be set aside applies only 
 to cases where the party is really in default. 
 Where default has been entered by mistake 
 or improperly, it should be set aside without 
 such affidavit: Messenger v. Marsh, 6-401; 
 Rice V. Orifflth, 9-539 ; Boats v. Shules, 29- 
 507 ; United States Boiling Stock Co. v. Pot- 
 ter, 48-56. 
 
 Vol. 1—36 
 
 56. Where default has been improperly 
 granted, it should be set aside upon motion 
 without the showing of a meritorious defense : 
 Beasley v. Cooper, 43-542. 
 
 57. Default improperly entered should be 
 set aside without showing of excuse or affi- 
 davit of merits : Brandt v. Wilson, 58-485. 
 
 58. Where a default was attempted to be 
 set aside, because a copy of the petition was 
 not served with the notice as requued by a 
 rule of court, held, that such service of the 
 petition was not a jurisdictional prerequisite, 
 and there being no affidavit of merits, the 
 default should not be set aside. In the ab- 
 sence of a showing, the presumption is that 
 such rule was complied with: Knapp v. 
 Haight, 23-75. 
 
 59. Time for setting aside: It would seem 
 that the limitation of time within which a 
 motion to set aside a default may be made 
 applies to judgments by default and not to 
 simple defaults, and that the latter may be 
 set aside at any time before or at the term 
 when judgment is rendered thereon, whilst 
 it might also be true that simple defaults 
 taken in vacation are to be set aside at the 
 commencement of the succeeding term: 
 Harper v. Drake, 14-533. 
 
 60. Dismissal: Where a cause has been 
 dismissed, not for defaub in pleading, but 
 merely for failure of the plaintiff to appear 
 and prosecute at the time set for trial, it may 
 be reinstated on motion of the plaintiff at 
 the discretion of the court: Byington v. 
 Quincy, 61-480. 
 
 61. Discretion: The court has a large dis- 
 cretion in passing upon motions to set aside 
 defaults, and unless it is shown that such 
 discretion is abused the appellate court will 
 not interfere: Marsh v. Colony, 36-603; 
 Rogers V. Cummings, 11-459; Gilbert v. Wil- 
 cox, 33-594. 
 
 62. Unless it appears that the court has 
 improperly exercised its discretion in refus- 
 ing to set aside a judgment on default, the 
 judgment will be affirmed on appeal : King 
 V. Kinney, 8-521. 
 
 63. While motions to set aside a default 
 are not to be granted as of course, yet the 
 court has a large discretion, and the supreme 
 court will not interfere with its ruling un- 
 less it is manifest that such discretion has 
 been abused : Clarke v. Hedge, 10-528. 
 
562 
 
 DEFAULT, III. 
 
 Effect of ; judgment. 
 
 64. The matter of setting aside a default 
 gi-anted for failure to file pleadings within 
 the time required by rules or order of court 
 is largely -within the discretion of the court, 
 and the supreme court will not interfere un- 
 less such discretion has been abused : Bolan- 
 der V. Atwell, 14^35; Clute v. Hazleton, 51- 
 355. 
 
 65. But the ruling will be reversed when 
 there is a clear abuse of discretion, or misap- 
 prehension of duty; and default shoul^ be 
 set aside on application made before judg- 
 ment is rendered, when based upon proper 
 grounds : Simmons v. Church, 31-384. 
 
 66. It will require a stronger case to war- 
 rant the reversal of the action of a court in 
 setting aside a default than in case of refus- 
 ing to set it aside: Westjphal v. Clark, 46- 
 363. 
 
 67. The presumption in favor of the cor- 
 rectness of the rulings of the court in respect 
 to setting aside a default is stronger than in 
 other cases : Willett v. Millman, 61-133. 
 
 68. The terras upon which a default will 
 be set aside rest within the sound discretion 
 of the judge, and his action thereon will not 
 be interfered with unless an abuse of discre- 
 tion be made to appear: Bloughv. VanJSoore- 
 beke, 48-40. 
 
 Incase of serTice by publication: In case 
 of default upon service by publication, de- 
 fendant is entitled to appear within two 
 years and apply for a retrial and to make a 
 defense : See New Tiiiixs, V. 
 
 III. Effect of default; judgment. 
 
 69. Admits plaintiff's cause of action: 
 
 A party in default cannot contest the right of 
 plaintiflf to recover something. He cannot 
 question the sufficiency of the petition : Loe- 
 ber V. Delahaye, 7-478. 
 
 70. Objection to witnesses: The party in 
 default cannot object to the admissibility of 
 witnesses called by the plaintiff to establish 
 his claim: McLott v. Saver y, 11-823. 
 
 71. Nor can he object to the introduction 
 of evidence by the opposite party : Wright v. 
 Lacy, 53-348. 
 
 72. The party in default has no right to 
 offer evidence, address the jury, nor ask in- 
 structions : Coolc V. Walters, 4^73. 
 
 73. A party in default may appear at the 
 time of the assessment of damages and cross- 
 
 examine the witnesses against him, but for no 
 other purpose. (Code, § 3873. ) He cannot in- 
 troduce evidence in his own behalf : Oarleton 
 V. Byington, 17-579. 
 
 74. A party in default cannot object to the 
 evidence offered, nor cross-examine the wit- 
 ness in relation to portions of the claim 
 which are not referred to in the testimony in 
 chief of such witness ; thus held, that where 
 a portion of plaintiff's claim was sufficiently 
 established by a sworn account, and a wit- 
 ness was introduced to prove another portion, 
 the cross-examination could not be extended 
 to items of account established by the sworn 
 account : Lyman v. Bechtell, 58-755. 
 
 75. A party in default is not entitled to 
 have the damages against him assessed by 
 jury: Wilkins v. Treynor, 14-391; Carleton 
 V. Byington, 17-579; Armstrong v. Qattin, 
 17-581 ; Clute v. Hazleton, 51-355. 
 
 76. A party in default waives his right to 
 demand a jury to assess the damages : Pres- 
 ton V. Wright, 60-351. 
 
 77. An attorney's fee is a part of the costs, 
 and defendant in default' as to the principal 
 indebtedness cannot put in issue the amount 
 of such fee and claim a jury trial thereon: 
 Musser v. Crura, 48-53. 
 
 78. Where plaintiff in a replevin suit dis- 
 misses his action, he is to be regarded as in 
 default and cannot demand a jury trial upon 
 the question as to the amount of defendant's 
 damages: Wilkins v. Treynor, 14-391. 
 
 79. It is immaterial when the witnesses 
 of plaintiff are examined, and whether any 
 one attends for the purpose of making cross- 
 examination, where the party in default has 
 not claimed the right of such cross-examinar 
 tion: Olim v. Chicago, M. & St. P. B. Co., 
 61-350. 
 
 80. What deemed admitted by default: 
 Upon an answer controverting the amount 
 of indebtedness claimed by plaintiff to be 
 due, but not denying his cause of action, the 
 court may proceed to render judgment as 
 upon default : Mann v. Howe, 9-546. 
 
 81. Where no cause of action is stated in 
 the petition, a default does not admit any 
 indebtedness. Although defendant may be 
 concluded by default, where the facts stated 
 do not constitute a good cause of action in 
 law, or where the petition is so defective as 
 to be vulnerable to a demurrer, yet where 
 
DEFAULT, III. 
 
 563 
 
 Effect of ; judgment. 
 
 the petition omits a necessary averment 
 to show Hability against defendant, the court 
 can and should, even upon default, refuse to 
 enter judgment : Bosoh v. Kassing, 64-312. 
 
 83. A default admits matters well pleaded, 
 but entitles plaintiff to recover nothing more 
 than the relief sought in the petition, and a 
 judgment should not be rendered by default 
 where no judgment is prayed for : Johnson 
 V. Mantz, 69-710. 
 
 83. Assessment of damages: A judgment 
 by default admits the averments of the cause 
 of action as alleged in the petition, and that 
 something is due and payable. The only 
 matter to be found in such case is the amount 
 of damages : Whittey v. Douge, 9-597. 
 
 84. But where the amount due upon a sub- 
 scription of stocli was dependent upon how 
 many instalments had been called for by 
 the board of directors, etc., held, that such 
 facts must be proved to the court before it 
 could assess the amount of recovery: Bur- 
 lington & M. M. B. Co. V. Shaw, 5-463 ; Bur- 
 lington <& M. R: B. Co. V. Marchand, 5-468. 
 
 85. Where the amount to be computed by 
 the clerk was left blanls:, to be filled in when 
 ascertained, and was not filled in, held, that 
 although the rights of third parties had inter- 
 vened, the judgment was not void as to 
 them : Lind v. Adams, 10-398. 
 
 86. Where a reasonable attorney's fee is 
 provided for, it may be proved up and should 
 be allowed, although the petition does not 
 state the amount claimed on that account : 
 Nelson v. Everett, 29-184. 
 
 87. Defendant's demurrer being overruled, 
 and he being in default for want of an answer, 
 held error to render judgment against him 
 without an assessment of damages : Musser 
 V. Hohart, 14^248. 
 
 88. An assessment of damages is not nec- 
 essary on an appeal from a justice of the 
 peace. If appellant does not appear in such 
 case, judgment of afSrmance may be ren- 
 dered: Taylor v. Barber, 2 G. Gr., 350. 
 
 89. A cause will not be reversed upon ap- 
 peal because testimony was improperly ad- 
 mitted when the appellant is in default and 
 liable to judgment on the pleadings: Pfantz 
 V. Culver, 13-312. 
 
 90. Default against joint defendants: 
 Where some of several defendants answer, 
 and others make default, plaintiff should not 
 
 have any greater relief against those in de- 
 fault than against those who answer : Pier- 
 son V. David, 4r-410. 
 
 91. And in such case, if the cause of ac- 
 tion is not made out against those who ap- 
 pear, judgment should not be rendered 
 against those in default, but the action should 
 be dismissed as to them, also : Curtis v. Smith, 
 42-665. 
 
 92. A defendant, though ia default, should 
 have the benefit of a matter pleaded by a 
 co-defendant going to the cause of action or 
 in its nature constituting a defense for both: 
 Morrison v. Stoiier, 7-498. 
 
 93. Where there are two defendants, one 
 of whom makes default, and the other ap- 
 pears, it is not the practice to enter judg- 
 ment on default against the first, before the 
 issue raised by the answer of the second is 
 disposed of : Greenough v. Shelden, 9-503. 
 
 And see supra, §g 5, 6. 
 
 94. Bill taken pro confesso: Where a bUl 
 is taken as confessed, all definite and positive 
 allegations are to be taken as true without 
 proof, but if the allegations are indefinite, 
 or the prayer is uncertain, the certainty req- 
 uisite to a proper decree must be afforded 
 by proof: Harrison v. Kramer, 8-543; Bo- 
 lander V. Atwell, 14-35. 
 
 95. Where a bill is taken pro confesso, aU 
 distinct and positive averments are to be con- 
 sidered as true, but if allegations are indefi- 
 nite, or plaintiff's demand is uncertain, the 
 requisite certainty must be afforded by the 
 proof: Atkins V. Faulkner, 11-326. 
 
 96. A decree by default or pro confesso 
 cannot be assailed by a bill of review on the 
 ground that it was taken without evidence to 
 support it, when it is recited therein that the 
 cause was heard on the evidence : Barnes v. 
 Anderson, 19-70. 
 
 97. The allegations in a petition to quiet 
 title, that defendant holds certain real estate 
 fraudulently and in trust for another, are to 
 be taken as true when default is made: 
 Greeley v. Sample, 22-338. 
 
 98. Sufficiency of service: The statutory 
 provision (Code, g 2870) that default shall 
 not be had for want of appearance until the 
 court determines from an inspection of the 
 record that there has been service of notice 
 as required, is simply directory, and if serv- 
 ice has been actually made, a judgment ren- 
 
564 
 
 DEFAULT, III — DISTRICT ATTORNEY. 
 
 Judgment.— County prosecutor. 
 
 dered thereon by default is not void, even 
 though there is no return of service: Law- 
 rence v. Howell, 53-63. 
 
 99. Where judgment by default is ren- 
 dered, it will be presumed that proper notice 
 appeared to have been had, unless the con- 
 trary is alleged and clearly proved : Ilale v. 
 First Nat. Bank, 50-643. 
 
 100. Where there is service, though de- 
 fective, a judgment by default will not be 
 void, even when it is error in the court to 
 render it: Pratt v. Western Stage Co., 37- 
 863; Muscatine Turn Verein v. Funck, 18- 
 469. 
 
 101. The affidavits, etc., required to be 
 filed in cases of service by publication are 
 essential to the validity of a judgment on 
 such service; if materially defective, the 
 judgment will be erroneous, even though it 
 recites that defendant was served with notice. 
 The presumptions in favor of the jurisdiction 
 of the court do not cure such a defect : Tunis 
 V. Withrow, 10-305. 
 
 102. Where a judgment is taken by de- 
 fault, it should appear affirmatively that 
 there has been such service and comphance 
 with the provisions of the law as gives the 
 court jurisdiction over the person of defend- 
 ant, and it is clearly irregular to take such 
 judgment where the record discloses the fact 
 that there has not been such service and 
 compliance : Woodward v. Whitescarver, 6-1. 
 
 And see further. Jurisdiction, IV, b ; V. 
 
 103. Judgment: Default may be granted 
 and judgment rendered thereon before the 
 cause is regularly reached on the docket: 
 Brenner v. Oundershiemer, 14-83. 
 
 104. It is not essential that judgment of 
 default he first rendered. The final judg- 
 ment may embrace judgment of default as 
 well as the determination of the liability of 
 defendant on the cause of action : Davis v. 
 Burt, 7-56. 
 
 105. Review on appeal: Before judgment 
 on default will be reviewed in the supreme 
 court, motion to set it aside must have been 
 made and overruled in the court below: 
 Downing v. Harmon, 13-585; Hunt v. 
 Stevens, 35-261. 
 
 106. Where judgment is rendered at a 
 time eai-lier than that at which defendant 
 can be required to answer, a motion to cor- 
 rect the judgment should be made in the 
 
 trial court before prosecuting the error on 
 appeal: Pigmanv. Denney, 13-396. 
 
 DEMUBREE. 
 
 See Pleadings, VLU, 
 
 DEMURRER TO ETIDENCE. 
 
 See Practice, in, f. 
 
 DEPOSITIONS. 
 
 See Evidence, HI, 6. 
 
 DESCENT. 
 
 See Estates of Decedents, YI, d. 
 
 DES MOINES KITER LANDS. 
 
 See Public Lands, IIL 
 
 DETINUE. 
 
 See Replevin. 
 
 DISMISSAL OF ACTION. 
 
 See Practice, IV. 
 
 DISTRIBUTION. 
 
 See Estates of Decedents, VL 
 
 DISTRICT ATTORNEY. 
 
 1. County prosecutor: The duties of the 
 office of county prosecutor, as existing prior 
 to the new constitution, devolved, subse- , 
 quently to its adoption, upon the district at- 
 torney therein provided for, and the office of 
 county prosecutor was thereby abolished: 
 State V. Moran, 8-399. 
 
 2. Right and duty to represent county: 
 It is the duty of the district attorney to ap- 
 pear for the county, and it is his right to do 
 so : Clark v. Lyon County, 87-469 ; Toitoc* v, 
 Louisa County, 46-138. 
 
DISTRICT ATTORNEY— DIVORCE, I. 
 
 565 
 
 Additional counsel. — Grounds for divorce. 
 
 3. Additional counsel : The district attor- 
 ney cannot bind the county to pay fees of 
 additional counsel employed by him : Tatloek 
 V. Louisa County, 46-138. 
 
 4. But the board of supervisors may em- 
 ploy additional counsel to prosecute criminal 
 cases : Hopkins v. Clayton County, 32-15. 
 
 6. The board will be bound by a contract 
 for that purpose, although not entei-ed upon 
 the records. Such contract may be proven 
 by parol evidence : Jordan v. Osceola County, 
 69-388. 
 
 6. The court may, in the absence of the 
 district attorney, appoint a special prosecutor : 
 White V. Polk County, 17-413. 
 
 7. But the court cannot, unless perhaps in 
 the absence of the district attorney and to 
 prevent failure of justice, bind the county 
 for the payment of additional counsel for 
 prosecution. The county is liable to pay for 
 additional counsel only as the boai-d of super- 
 visors may have determined such counsel to 
 be necessary: Seaton v. Polk County, 59- 
 636. 
 
 8. The district attorney is required to ap- 
 pear for the state in habeas corpus proceed- 
 ings, and it is provided that notice of such 
 proceedings shall be served upon him. In 
 such cases, the district attorney is the repre- 
 sentative of the state, and, as such, may con- 
 trol them within the limits of his authority 
 and duty : Miller v. Buena Vista County, 68- 
 711. 
 
 9. Authority: The prosecuting attorney 
 (when there was a prosecuting attorney in 
 each county) had authority to foUow and 
 prosecute a case commenced in his county in 
 any other county to which the venue might 
 be changed: State v. Carothers, 1 G. Gr., 464. 
 
 10. While a case is in the district court, it 
 is under the control of the district attorney, 
 and any agreement he may make with refer- 
 ence to the disposition thereof is binding as 
 against the attorney-general, who controls 
 the case in the supreme court. (Code, g§ 150, 
 205) : State v. Fleming, 13-443. 
 
 11. Vacancy: The acceptance, by one hold- 
 ing the ofBce of district attorney, of an office 
 in the volunteer military forces of the United 
 States, held not to create a vacancy in the 
 former office. (But see now, Code, §781, If 9)4 
 Bryan v. Cattell, 15-538. 
 
 DISTKICT COURT. 
 
 See Courts. 
 
 DIVORCE, 
 
 I. Grounds for. 
 
 II. JuEiSDicTioN; procedure; decree; AIl- 
 
 MONY. 
 
 As to presumption of divorce, see Evi- 
 dence, g§ 864-866. 
 
 As to proceedings to annul marriage, see 
 Marriage, II. 
 
 I. Geouitos foe.' 
 
 1. In general: To justify the gi-anting of 
 a divorce, it must appear that defendant has 
 been guilty of some of the acts mentioned 
 in the statutes as grounds therefor. It is 
 not sufficient that the court finds defendant's 
 conduct is such as to manifest a disregard 
 on his part of the marriage vows and his 
 obligations to plaintifiE : Miller v. Miller, 49- 
 325. 
 
 2. The causes enumerated in the statute are 
 the only ones which will justify either party 
 to the marriage in refusing to live with the 
 other: York v. Ferner, 59~iST. 
 
 3. Where the ground for divorce is a con- 
 tinuing one, although it may have begun be- 
 fore the enactment of the statute providing 
 for a divorce on that ground, yet if continued 
 afterward for the period required, it wiU be 
 sufficient to justify the divorce: McCraney 
 V. McCraney, 5-233, 254. 
 
 4. Impotency, insanity and idiocy are not 
 grounds for divorce : Wertz v. Wertz, 43-534. 
 
 1 Code, § 2:23. Divorces from the bonds of matrimony may be decreed against the husband for the follow- 
 ing causes: 
 
 „1. When he has committed adultery subsequent to the marriage; 
 
 8. When he wilfully deserts his wife and absents himself without a reasonable cause for the space of 
 two years; 
 
 3. When he is convicted of felony after his marriage; 
 
 4. When, after marriage, he becomes addicted to habitual drunkenness; 
 
 6. When he is guUty of such inhuman treatment as to endanger the life of his wifet 
 
566 
 
 DIVORCE, I. 
 
 Grounds for. 
 
 5. Under a previous statute providing for 
 divorce, -when it vi^as made fully apparent to 
 the court that the parties could not live in 
 peace and liapplness together and that their 
 welfare required a separation, held, that it 
 must be made fully apparent to the court 
 not only that the parties could not live in 
 peace and happiness, but also that their wel- 
 fare required their separation: Inskeep v. 
 Inslceep, 5-204. 
 
 6. Further held, that a divorce on this 
 ground could not be granted to the wrong- 
 doer: Ibid. 
 
 7. It is probably correct to say that a de- 
 cree in an action for divorce is an adjudica- 
 tion of all causes for divorce then existing : 
 Rivers v. Rivers, 65-568. 
 
 8. Adultery: Where divorce is sought on 
 the ground of adultery, it is not necessary to 
 prove the direct fact of adultery, but it may 
 be inferred from the circumstances. These, 
 however, must be such as would lead the 
 guarded discretion of a just mind to the con- 
 clusion of the truth of the facts. If the adul- 
 terous disposition of the parties is once estab- 
 lished, the crime may be proven from their 
 afterwaxd being together under circum- 
 stances authorizing such inference : Inskeep 
 V. Inskeep, 5-204 
 
 9. The circumstances are to be taken to- 
 gether, and when combined must tend to es- 
 tablish the criminal disposition of the party 
 charged, a like disposition of the alleged par- 
 ticeps criminis, and an opportunity to com- 
 mit the act : Ibid. 
 
 10. Adultery can seldom be proven by 
 other than circumstantial evidence, and evi- 
 dence thereof is sufficient when the circum- 
 stances proved lead naturally and faii-ly to 
 the conclusion of guilt, and are inconsistent 
 with any rational theory of innocence : Na-mes 
 V. Names, 67-383. 
 
 11. Evidence of adultery in a particular 
 case held sufficient to warrant a divorce on 
 that ground : Ibid. 
 
 ' 12. In a particular case, held, that the evi- 
 dence did not suf&oiently establish the truth 
 of the diarge of adultery : Haggard v. Hag- 
 gard, 63-82. 
 
 13. When the wife deserts the husband 
 without reasonable groimd, and before she has 
 been absent long enough to entitle him to a 
 divorce he commits adultery, the wife is en- 
 
 titled to divorce and alimony : Wilson v. 
 Wilson, 40-230; Dupont v. Diipont, 10-112. 
 
 14. While the adultery of plaintiff wiU de- 
 bar her from procuring a divorce on the 
 ground of a like crime on the part of defend- 
 ant, yet where the marriage of plaintiff, 
 which was claimed to be adulterous, was 
 contracted in ignorance of the fact that de- 
 fendant was alive, and in fact he had not 
 been heard of for ten years, held, that such 
 marriage on the part of plaintiff would not 
 defeat her action against defendant for di- 
 vorce : Smith v. Smith, 64-682. 
 
 As to the crime of adultery, see Criminal 
 Law, II, 7, c. 
 
 15. Desertion: A reasonable cause for de- 
 sertion must be one which would prima 
 facie entitle the pai-tj so deserting to a di- 
 vorce : Pierce v. Pierce, 33-288. 
 
 16. Whether the desertion and absence 
 must both be without reasonable cause, 
 quaere, though it may well be questioned 
 whether the true meaning of the statute is 
 not " when the defendant wilfully deserts 
 her without reasonable cause and absents 
 himself for two years." But the reasonable 
 cause here contemplated is wrongful conduct 
 on the part of the wife, amounting to a good 
 excuse for the husband's desertion and ab- 
 sence. No other cause can be shown than 
 one arising from the fault of the wife. The 
 statute does not require that the absence 
 shall be wilful, and therefore held, that if 
 the desertion occurred while the defendant 
 was sane, his subsequent insanity was no ex- 
 cuse : Douglass v. Douglass, 31-421. 
 
 1 7. In case of application for a divorce on 
 the ground of desertion, the petition must 
 state that such desertion was "without rea- 
 sonable cause:" Pinkney v. Pinkney, 4 G. 
 Gr., 324. 
 
 18. Where the parties mutually agree to 
 separate, neither one is entitled to divorce 
 on the ground of the absence of the other 
 until such party offers to and expresses a 
 willingness to live with the other, and such 
 offer must appear to be made in good faith: 
 Farber v. Farber, 64-362. 
 
 19. Facts in a particular case held suffi- 
 cient to constitute a wilful desertion of the 
 iiusband on the part of the wife: Pilgrim v. 
 Pilgrim, 57-370. 
 
 20. Evidence in a particular case heild suf- 
 
DIVORCE, I. 
 
 567 
 
 Gi'ounds for. 
 
 ficient to show suoh desertion 6t the hus- 
 band by the wife as to entitle the former to 
 a divorce : Lane v. Lane, 67-76. 
 
 21. In another case, held, that the evidence 
 v.'as not sufficient: Atkinson v. Atkinson, 
 67-364. 
 
 22. A conviction of felony from which 
 an appeal has been prosecuted and which is 
 liable to reversal is not sufficient ground for 
 a divorce. The conviction must be final and 
 absolute : Vinsant v. Vinsant, 49-639. 
 
 23. Where it appeared that defendant was 
 convicted on an indictment for felony but 
 the cause was appealed, and at the time of 
 the trial in the divorce suit suoh appeal was 
 undetermined, held, that there was no ground 
 for divorce upon such conviction : Rivers v. 
 Rivers, 60-378. 
 
 24. But in such case, held, that after the 
 affirmance of such conviction a new action 
 for divorce might be brought on the ground 
 of such conviction and would not be barred 
 by the first action : Rivei-s v. Rivers, 65-568. 
 
 25. Habitual drunlcenuess: To constitute 
 a person an habitual drunkard, it is not neces- 
 sary that he be in that condition during busi- 
 ness hours: Wheeler V. Wheeler, 53-511. 
 
 26. Inhuman treatment: In order to con- 
 stitute inhuman treatment within the statu- 
 tory provision, there must be two ingredients : 
 first, such treatment must be inhuman, and, 
 second, it must be suoh as to endanger life : 
 Freerking v. Freerking, 19-34. 
 
 2 7. In an action for divorce on the ground 
 of inhuman treatment, past treatment is not 
 of itself a ground, and is material only as 
 showing a just foundation for the appre- 
 hended danger to life. Threats of violence, 
 where there is danger of harm to the life, 
 will be sufficient, but threatened injury, caus- 
 ing apprehension of bodily harm merely, will 
 Qot be sufficient. The question is, whether 
 there is reasonable apprehension of -danger 
 to the life : Beehe v. Beebe, 10-133. 
 
 28. Although it is not shown that any act 
 has been done in the way of an attempt to 
 inflict the apprehended injury, yet the court 
 may see that there is danger in such case as 
 well as though there had been many at- 
 tempts: Ihid. 
 
 29. There may be inhuman treatment en- 
 dangering life although no physical injury is 
 shown to have been sustained. Therefore, 
 
 held, that where the husband had searched 
 for a revolver with the intention of killing 
 his wife, her Ufe had been in danger within 
 the meaning of the statute, and her husband 
 had exhibited such a criminal disposition 
 that her life would continue to be in danger 
 if she continued to live with him, and she 
 was entitled to a divorce : Saokrider v. Sack- 
 rider, 60-397. 
 
 30. Treatment calculated to affect the mind 
 of plaintiff so as to destroy her health and 
 ultimately endanger her life, or which in- 
 volves by natural consequence a permanently 
 injurious and prejudicial effect upon her 
 health, will be sufficient: Caruthers v. Co- 
 ruthers, 13-366; Cole v. Cole, 33-433. 
 
 31. Cruel treatment will not justify a di- 
 vorce unless it be such as to furnish reason- 
 able ground to apprehend physical danger in 
 the further continuance of the marriage re- 
 lation, and must not be such as is caused by 
 the party's own misconduct: Knight v. 
 Knight, 31-451. 
 
 32. Persistent abuse of the wife in the pres- 
 ence of her children, and also in the presence 
 of neighbors and others, by applying to her 
 epithets imputing to her unchastity, must 
 necessarily wound the feelings and utterly 
 destroy her peace of mind, in such sense as 
 to impair her bodily health: Wheeler v. 
 Wheeler, 53-511. 
 
 33. Inhuman treatment which is the result 
 of insanity will not be a ground of divorce: 
 Wertzv. Wertz, 43-534. 
 
 34. Acts of cruelty coupled with failure to 
 furnish suitable food and clothing, held suf- 
 ficient in a particular cas'e to constitute 
 ground for divorce: Harnett v. Harnett, 55-45. 
 
 35. Evidence in a particular case held suf- 
 ficient to show cruel and inhuman treatment 
 on the part of the husband, entitling the wife 
 to divorce: Platner v. Plainer, 66-378; Ses- 
 terhen v. Sesterhen, 60-301. 
 
 36. In a particular case, held, that the evi- 
 dence was not sufficient to show such cruel 
 and inhuman treatment as to entitle the wife 
 to a divorce : Rivers v. Rivers, 60-378 ; Wha- 
 ley v. Whaley, 68-647. 
 
 87. The facts showing that the treatment 
 is inhuman, and such as to endanger life, 
 must be stated. G-enei-al allegations to that 
 effect will not be sufficient: Freerking v. 
 Freerking, 19-34. 
 
568 
 
 DIVORCE, II. 
 
 Jurisdiction; procedure; decree; alimony. 
 
 38. To entitle complainant to a divorce on 
 the ground of inhuman treatment, it is 
 enough to show that fact, although the speci- 
 fications of the petition are not proved as 
 laid : Cole v. Cole, 33-433. 
 
 39. Misconduct of plaintiff: While plaint- 
 iff may be denied relief on the ground of 
 misconduct, notwithstanding the wrong 
 charged on the part of defendant, yet in 
 a particular case, held, that the misconduct 
 of plaintiff was not such as to show that she 
 was not entitled to relief : Marsh v. Marsh, 
 64-667. 
 
 40. Condonation: Sexual intercourse of a 
 wife with her husband after suit was com- 
 menced against the husband on the ground 
 of cruel treatment endangering life, held 
 not to be a condonation, where it was pro- 
 cured by the husband without the wife's 
 voluntary consent: Sarneiiv. Harnett, 55-45. 
 
 41. The fact that a wife seeking divorce 
 remains in the same house with her husband 
 and does the household work for the husband 
 does not amount to condonation sufficient to 
 defeat her action : Harnett v. Harnett, 59-401. 
 
 42. In a particular case, held, that the con- 
 donation of the wife in regard to adultery of 
 the husband was not such as to show assent 
 thereto on her part: Cochran v. Cochran, 
 35-477. 
 
 43. Facts in a particular case held not suffi- 
 cient to show condonation : Sesterhen v. Ses- 
 terhen, 60-301. 
 
 II. Jueisdiction; peocedttee; deceee; 
 
 ALIMONY. 
 
 44. Legislative divorces: The courts have 
 no inherent common law jurisdiction over 
 the matter of divorce. AU the authority 
 they can exercise in that respect is derived 
 from legislative enactment. In England, at 
 the time the common law. was adopted in this 
 country, a marriage could not be dissolved 
 for any cause without special act of parlia- 
 ment. And after the independence of the 
 states there was no method of obtaining a 
 divoi-ce except by virtue of general or special 
 legislative enactment. Therefore, held, that 
 the legislatures of the states are deprived of 
 the power to grant divorces, only so far as 
 that power has been conferred on the courts 
 of the state : Levins v. Sleator, 3 G. Gr., 604. 
 
 4.5. Jnrisiiction ; residence: The action 
 is not local, but transitory, and the court be- 
 ing satisfied of the residence of plaintiff, 
 has power to try the case irrespective of the 
 residence of defendant : Smith v. Smith, 4 G. 
 Gr., 366. 
 
 46. The residence on the pai't of plaintiff 
 required by statute is a legal and not merely 
 an actual residence ; such a residence as that, 
 when a man leaves it, he has an intention of 
 returning to it : Hinds v. Hinds, 1-36. 
 
 47. A mere temporary sojourn for a season, 
 without intention of domiciliation and citi- 
 zenship, is insufficient : Smith v. Smith, 4 G, 
 Gr., 366; Whitcomb v. Whitcomb, 46-437, 
 443. And see Rush v. Bush, 48-701. 
 
 48. A Utah divorce obtained without ju- 
 risdiction, or where neither party was resident 
 of the territory, is absolutely void : State v, 
 FleaJc, 54-439. 
 
 49. The rule that the domicile of the wife 
 and children is to be considered the same as 
 that of the husband is subject to the excep- 
 tion that, in a proceeding for a divorce, the 
 law recognizes the husband and wife as hav- 
 ing separate domiciles, and a valid divorce 
 may be decreed in a suit where only one of 
 the parties resides: Kline v. Kline, 57-386. 
 
 50. Where the proceeding is brought by 
 the husband in one state against the wife 
 living in another state, and jurisdiction is 
 acquired by service of publication, the court 
 may declare the status of the parties and 
 grant the decree, but it cannot make a valid 
 decree as to the custody of the children, who 
 are non-residents of the state where the di- 
 vorce proceedings wei-e had : Ibid. 
 
 51. Jurisdiction as to children: The pro- 
 visions as to the custody of a child, made in 
 the decree of divorce regularly obtained and 
 still in force in another state, such child 
 being within the jurisdiction of the court at 
 the time the decree was rendered, will be re- 
 garded as binding and conclusive by the 
 courts of this state, when the right to the 
 custody of the child is called in question 
 here, until such decree is modified or re- 
 versed or set aside for cause shown to the ju- 
 risdiction which rendered it: Wakefield v. 
 Ives, 35-238. 
 
 52. Waiver of want of jurisdiction: 
 Want of jurisdiction of a court to entertain 
 an action for divorce, owing to the non-resi- 
 
DIVORCE, II. 
 
 569 
 
 Jurisdiction; procedure; decree; alimony. 
 
 dence of plaintiff, cannot afterwards be in- 
 terposed by such plaintiff as an objection to 
 the decree, where it appears that plaintiff 
 authorized the cause to be prosecuted and 
 received the money allowed as alimony: 
 Ellin V. White, 61-644. 
 
 53. Decree ag'aiiist non-resident: Where 
 the action for divorce is brought by a resi- 
 dent of one state, in the courts of that state, 
 against a non-resident, and service is had by 
 publication only, without appeaiance by de- 
 fendant, the court acquires jurisdiction only 
 to declare the status of the pai-ties befoi-e it, 
 but cannot render a valid decree as to the 
 custody of minor chOdren who are non-resi- 
 dents of the state where the decree is ren- 
 dered: Kline V. Kline, 57-386. 
 
 54. The policy and laws of the two states 
 of Nebraska and Iowa being substantially 
 the same as to the mode of procedure that 
 may be adopted to obtain a divorce, it being 
 provided in both states that a divorce may 
 be obtained in some other state or country, 
 held, that a divorce granted in Nebraska in 
 accordance with its laws to a resident of that 
 state and against a resident of Iowa, upon 
 personal service, being valid in the state 
 where it was granted, would be recognized 
 as valid in Iowa : Van Orsdal v. Van Orsdal, 
 67-35. 
 
 65. The petition: Although the statute 
 (Code, g 2222) requires the petition for a 
 divorce to be sworn to, yet the fact that 
 Buch petition is not sworn to does not deprive 
 the court of jurisdiction and render subse- 
 quent proceedings invalid: McCraney v. 
 McCraney, 5-232, 254. 
 
 56. Defects in the verification of the peti- 
 tion are not jurisdictional and cannot be 
 urged in a collateral attack : Ellis v. White, 
 61-644. 
 
 67. This provision as to the verification of 
 the petition by plaintiff is doubtless man- 
 datory and intended to prevent looseness of 
 practice in actions of divorce and its require- 
 ments should be strictly enforced. The fact 
 that defendant answers the petition without 
 objecting to a watit of verification will not 
 constitute a waiver of such, requirement, for 
 the reason that it is enacted not for the bene- 
 fit of defendant but as a hindrance to easy 
 divorce, and therefore cannot be waived. 
 But such provision does not relate to the 
 
 jurisdiction of the court. It prescribes a rule 
 of action intended only to govern as to the 
 final judgment in the case. Therefore the 
 fact that the petition is not verified will not 
 deprive the court of jurisdiction to make an 
 order as to temporary alimony : Van Duzer 
 V. Van Duzer, 65-625. 
 
 58. Counter-claim: Where plaintiff sues 
 for divorce, and defendant, while resisting 
 the action, interposes a counter-claim for di- 
 vorce on his part, the cause of action set up 
 by defendant is to be regarded as a counter- 
 claim under Code, § 2659, IT 2: Wilson v. 
 Wilson, 40-230. 
 
 59. Temporary alimony ; maiTiage mnst 
 exist: Under the statute (Code, § 2226) au- 
 thorizing the court to order either party to 
 pay the clerk a sum of money for the sepa- 
 i-ate support and maintenance of the adverse 
 party and children, and to enable such party 
 to prosecute or defend the action, held, that 
 in order to warrant an order granting tem- 
 porary alimony, the fact of marriage between 
 the parties must be admitted or proved: 
 York V. York, 34-530. 
 
 60. The cross-petition authorized by Code, 
 § 2225, for a divorce by defendant against 
 plaintiff may be based upon causes of divorce 
 occurring subsequently to the commence- 
 ment of the original action: Wilson v. Wil- 
 son, 40-280. 
 
 61. In a proceeding to vacate a decree of 
 divorce, the court has no power to require 
 defendant to pay plaintiff a sum of money 
 to enable her to prosecute the action. To 
 authorize such an order, it is essential that 
 the marriage relation should exist: Wilson 
 V. Wilson, 49-544. 
 
 62. But the acts of the parties in living 
 together again as husband and wife after a 
 divorce were held sufficient to establish such 
 marital relation as to justify the granting of 
 an order for temporary alimony : McFarland 
 V. McFarland, 51-565. 
 
 63. The proof of marriage in a particular 
 case, held sufficient to authorize the allow- 
 ance of temporary alimony : Smith v. Smith, 
 61-138. 
 
 64. By court, not judge: The power to 
 make the order for temporary alimony (as 
 provided in Code, § 2226) is conferred upon 
 the court and not upon the judge in vaca- 
 tion : Prosser v. Frosser, 64^378. 
 
570 
 
 DIVORCE, II. 
 
 Jurisdiction; procedure; decree; alimony. 
 
 65. In proceeding for alimony: Where 
 the wife brings action for alimony without 
 divorce, a temporary allowance may be made 
 for the prosecution of the action in the same 
 manner as pi-ovided by statute in proceedings 
 for divorce : Finn v. Finn, 62-482, 
 
 66. Application; allowance: If the ap- 
 plication for temporary alimony does not 
 fairly present the facts necessary to enable 
 the court understandingly to pass upon it, 
 all the inferences and presumptions which 
 naturally arise out of the defect of such ap- 
 plication wUl be indulged in against the 
 party preferring it. But the opposite party 
 cannot, by motion for more specific state- 
 ment, require the number, names and resi- 
 dences of witnesses, and facts expected to be 
 proved by each, to be shown to the court in 
 determining the proper amount to be al- 
 lowed for the purpose of enabling the cause 
 to be tried. In a particular case, held, that 
 the allowance -for temporary alimony was 
 excessive: Champlin v. Champlin, 42-169. 
 
 67. The court may have jurisdiction to 
 make an order as to temporary alimony, 
 although the averments of the petition are 
 not verified as required by Code, § 2223: 
 Van Duzer v. Van JDuzer, 65-625. 
 
 68. Temporary alimony may be granted to 
 either party in a divorce proceeding as 
 against the other ; and in a particular case, 
 where the husband sought a divorce from 
 the wife, held, that an allowance of tempo- 
 rary alimony to the wife was proper : Small 
 V. Small, 42-111. 
 
 69. An allowance to the wife of the means 
 of defraying expenses of a suit in which she 
 is plaintiff may properly be made : Briggs v. 
 Briggs, 36-383. 
 
 70. But held that the amount allowed in a 
 particular case was excessive : Ibid. 
 
 71. In a particular case, held, that an al- 
 lowance of three hundred dollars for attor- 
 neys' fees for the prosecution of the action, 
 and two hundred dollars for the payment of 
 witness fees and other expenses, to be paid 
 over to the clerk and used for that purpose, 
 
 . together with an allowance of twenty-five 
 dollars per month for the support of plaintiff 
 during the action, was not excessive: Van 
 Duzer v. Van Duzer, 65-625. 
 
 72. In a particular case, held, that allow- 
 ance for support pending appeal was not 
 
 proper, and that the allowance made in the 
 case was excessive : Miller v. Miller, 43-385. 
 
 73. In a particular case, an allowance to 
 the wife was upheld : Maben v. Maben, 67-384. 
 
 74. The husband cannot offset as against 
 the amount which he is required to pay as 
 temporary alimony the value of household 
 goods appropriated by the wife : Dayton v, 
 Drake, 64-714. 
 
 75. Failure to pay : While failure of plaint- 
 iff to pay a sum ordered by the court to be 
 paid to defendant to enable her to defend and 
 to establish her innocence may well be pun- 
 ished by dismissing the action or striking the 
 petition from the files, a similar failure of de- 
 fendant to pay a sum similarly ordered to 
 plaintiff should only in extreme cases be pun- 
 ished by striking the answer from the files. 
 A full investigation of the mei-its should not 
 thus be prevented, if the party can show a 
 good excuse, such as misfortune or poverty, 
 for failure to comply with the order : Peel v. 
 Peel, 50-531. 
 
 76. Failure to pay money awarded as tem- 
 porary alimony, and for which judgment has 
 been rendered, does not constitute contempt 
 depriving defendant of the right to file a 
 pleading in the case : Baily v. Baily, 69-77. 
 
 77. Attachment: The provisions of the 
 Code as to attachment in ordinary actions are 
 not applicable to the attachment authorized 
 by Code, § 2227, to secure the payment of 
 alimony : Smith v. Smith, 61-138. 
 
 78. In a particular case, held, that an 
 attachment without a bond was properly 
 allowed: Ibid. 
 
 79. The remedy by attachment is not ex- 
 clusive of that by injunction, to i-estrain the 
 disposition of property by the defendant: 
 Wharton v. Wharton, 57-696. 
 
 80. The attachment authorized by the sec- 
 tion of the Code just referred to may be lev- 
 ied on the homestead: Daniels v. Morris, 
 54-369. 
 
 81. Such an attachment may be granted 
 in a suit to annul a legal marriage as well 
 as one for a divorce : Ibid. 
 
 82. This attachment will not affect the lien 
 of a creditor of the husband whose judgment 
 is obtained prior to the decree ; nor can the 
 decree be dated back to the time of attach- 
 ment so as to cut out intervening judgments: 
 Daniels v. Lindley, 44^567. 
 
DIVORCE, n. 
 
 sn 
 
 Jurisdiction; procedure; decree; alimony. 
 
 83. It is not improper to allow an attach- 
 ment to compel the performance of an order 
 to pay temporary alimony, on the ground 
 that such attachment interferes with the 
 power of defendant to comply with the order 
 for alimony, it appearing that the means of 
 defendant are ample without taking into con- 
 sideration the property attached : Van Duzer 
 V. Van Duzer, 65-635. 
 
 84. Custody and support of children: 
 Pending a proceeding for divorce, the court 
 has power, under Code, § 2326, to provide for 
 the custody and maintenance of children, 
 and may take them fi-om the custody of the 
 father, defendant, if he is shown to be an un- 
 fit person : Green v. G^'een, 53-403. 
 
 85. Method of trial: By Code, § 2333, the 
 trial of an action for divorce is to be in open 
 court, and such provision is not complied 
 with by trial to referee, and a subsequent 
 hearing of the report of such referee on ex- 
 ceptions thereto. A reference in such cases 
 cannot be made even by consent, but the tes- 
 timony taken by such referee, appointed in 
 such case, may be treated as taken before a 
 commissioner in accordance with the provis- 
 ions in that section, and the evidence so taken 
 may be used on the trial in court : Hobart v. 
 Hobart, 45-501. 
 
 86. As the parties to a proceeding for di- 
 vorce had the right under the Revision to a 
 jury trial, such right was not taken away by 
 the Code in proceedings commenced before 
 its adoption: Wadsworthv. Wadsworth, 40- 
 448. 
 
 87. Consent of parties will not warrant 
 the granting of a divorce unless proper 
 ground therefor is shown : Lyster v. Lyster, 
 1-130. 
 
 88. Evidence considered and TieZd sufficient 
 to prove a prior marriage and support a de- 
 cree of divorce therefrom : Borton v. Borton, 
 48-697. 
 
 As to evidence of Marriage, see that title, 
 §§ 6-12. 
 
 As to presumj)tion of divorce, see Evi- 
 dence, §g 864-866. 
 
 89. Costs; attorney's fees: The court may 
 tax an attorney's fee as part of the costs in 
 favor of the successful party, but such item 
 of costs cannot be made a lien upon the 
 homestead of the opposite party : Wilson v. 
 Wilson, 40-230. 
 
 90. The attorney for the wife defending a 
 divorce suit may recover his fees from the 
 husband as for necessaries furnished the wife : 
 Porter v. Briggs, 38-166; but see contra, 
 Johnson v. Williams, 3 G. Gr., 97. 
 
 91. An attorney who brings an action for 
 divorce in behalf of the wife against the hus- 
 band may recover attorney's fees from the 
 husband upon showing that he acted in good 
 faith and that there was no collusion or op- 
 pression in the bringing of the action. He is 
 not required to establish that the wife was 
 entitled to a divorce: Preston v. Johnson, 
 65-385. 
 
 92. Final decree; custody of cliiUlren: 
 A provision under a decree giving to one of 
 the parties the custody of children ceases to 
 have any effect upon the death of such party. 
 The right of such custody cannot survive the 
 death of the party entitled thereto, nor be 
 transferred to any other person, and upon 
 such death, the other parent stands in such 
 relation to such children as he would have 
 occupied had such decree never been made: 
 Barney v. Barney, 14^189. 
 
 93. Permanent alimony: The power to al- 
 low alimony is an incident of the power to 
 grant a divorce, and such relief may be given 
 in an action for divorce, although there is no 
 statement in the original notice of any claim 
 therefor : McEwen v. MoEwen, 26-375. 
 
 94. And this is true although service of no- 
 tice is had by publication only ; and in such 
 case the court may declare and enforce a lien 
 for alimony against real estate of the defend- 
 ant situated in another county : Harshberger 
 V. Harshberger, 36-503. 
 
 95. Alimony, custody of the children, etc., 
 may be regulated by order of the court, al- 
 though no reference thereto is made in the 
 pleadings : Zimer v. Zuver, 36-190. 
 
 96. An agreement for settlement in view 
 of separation will not bar a claim for ali- 
 mony in a subsequent action for divorce: 
 Wilson V. Wilson, 40-230. 
 
 97. Alimony is an allowance out of the 
 estate of the husband for the maintenance of 
 the wife after the dissolution of the marriage 
 relation. The right to alimony is not prop- 
 erty in itself, and a contract between the 
 husband and the wife by which the wife ac- 
 cepts a provision in lieu of alimony may be 
 binding: Martin v. Martin, 65-255. 
 
572 
 
 DIVOEOE, II. 
 
 Jurisdiction; procedure; decree; alimony. 
 
 98. The relation of husband and wife must 
 exist either de jure or de facto to justify an 
 order for alimony : Blythe v. Blytlie, 25-266. 
 
 99. Custody of cliildren: As to provisions 
 for custody of children in particular cases, 
 Bee Sunt v. Hunt, 4 G. Gr., 216; Cole v. Cole, 
 33-433; Zuver v. Zuver, 36-190. 
 
 100. Abatement by death: Upon the death 
 of the defendant, a proceeding for divorce 
 abates, and with it all claim for alimony : 
 O'Hagan v. O'Hagan's Ex'r, 4-509 ; Barney 
 V. Barney, 14-189. 
 
 101. Suit for alimony without dirorce: 
 A court of equity will entertain a suit 
 for alimony alone, without divorce, where 
 the wife is separated from the husband on 
 account of misconduct on his part justifying 
 the separation: Graves v. Graves, 36-310; 
 Whitconib v. Whitcomb, 46-437; Finn v. 
 Finn, 63-482; Farber v. Farber, 64-363; 
 Platner v. Platner, 66-378. 
 
 102. A wife resident in Iowa, against whom 
 a valid decree of divorce is rendered in an- 
 other state according to the laws of that 
 state, cannot afterwards maintain an action 
 in Iowa for alimony out of property not be- 
 longing to her former husband at the time 
 of the granting of such divorce : Van Orsdal 
 V. Van Orsdal, 67-35. 
 
 103. An action for alimony cannot be 
 maintained as an independent proceeding 
 after the divorce of the parties: Wilde v. 
 Wilde, 36-319. 
 
 104. When allowanceof alimony proper: 
 Where the wife, without sufficient excuse, 
 had left the husband, and the latter had aft- 
 erwards committed adultery, for which a 
 divorce was granted the wife, held, that she 
 was also entitled to alimony: Dupont v. 
 Dupont, 10-112. 
 
 105. Where a divorce is granted the hus- 
 band on account of the adultery of the wife, 
 she will not be entitled to alimony, unless 
 under peculiar circumstances: Fivecoat v. 
 Mvecoat, 32-198. 
 
 106. Alimony is rarely and only under pe- 
 culiar circumstances granted to the party in 
 fault, even when that party is the wife ; and 
 where a suit was brought by the husband 
 against the wife for divorce on the ground of 
 inhuman ti'eatment, and the wife in a cross- 
 petition asked divorce from the husband on 
 the same ground, and divorce was granted to 
 
 the wife and denied to the husband, held, 
 that it was eiTor to allow to the husband a 
 sum as alimony and make it a lien on the 
 homestead, which was in the wife's name 
 and acquired from her sepai'ate means: 
 Barnes v. Barnes, 59-456. 
 
 107. As to the amount and kind of alimony 
 proper to be allowed under particular circum- 
 stances, see Abey v. Abey, 32-575; Farley v. 
 Farley, 30-353. 
 
 108. Allowance in a particular case held 
 not excessive : Sesterhen v. Sesterhen, 60-301. 
 
 109. Allowing speelflc property: The 
 court may give the wife as alimony a specific 
 portion of the husband's property in fee: 
 Jolly V. Jolly, 1-9. But see contra, Russell 
 v. Russell, 4 G. Gr., 26. 
 
 110. While it is entirely competent for the 
 court to give to the wife a portion of the hus- 
 band's property absolutely and in her own 
 right, this should not be done if the hus- 
 band is in condition to pay money, unless 
 there is something in the condition of the 
 wife which would render it equitable and 
 just to give her the property in lieu of the 
 money : Inskeep v. Inskeep, 5-304, 221. 
 
 "■ 111. It is competent for the court to set 
 apart for the plaintiff a specific portion of 
 the defendant's estate as alimony, and this 
 may be done even though no prayer to have 
 this specific property set off as alimony is 
 contained in the petition, and notice of the 
 action is served by publication only : Tumg 
 v. O'Meara, 59-326. 
 
 112. The various cases in Iowa relating 
 to the proportion of the husband's property 
 which can be given to the wife as alimony 
 discussed, and held that in no case had more 
 than about one-thu-d of such property been 
 set apart iu that manner, and that where the 
 wife was the defendant against whom divorce 
 was decreed, the proportion should be less: 
 Zuver V. Zuver, 36-190. 
 
 113. Liability of homestead; lien of judg- 
 ment : The court may, in rendering judg- 
 ment for alimony in an action for divorce, 
 declai-e such judgment a lien upon the home- 
 stead of the opposite party; but such lien 
 cannot be extended to cover the costs taxed 
 in the case : Wilson v. Wilson, 40-230. 
 
 114. Where the husband was given the 
 custody of the children and a general judg- 
 ment for alimony was rendered in favor of 
 
DIVORCE, II. 
 
 573 
 
 Jurisdiction; procedure; decree; alimony. 
 
 ttie wife, held, that such judgment could not 
 be enforced against the homestead which 
 the husband and children continued to oc- 
 cupy : Byers v. Byers, 21-268. 
 
 115. But where the decree makes the ali- 
 mony a lien upon specific property, the fact 
 that such property is a homestead cannot be 
 taken advantage of after decree. It should 
 be set up in the action : Hemenway v. Wood, 
 53-21. 
 
 116. Lien of judgment: Under peculiar 
 facts indicating fraud on the part of the mort- 
 gagee under a mortgage in which the wife 
 did not join, held, that a decree directing the 
 allowance of alimony should be a hen upon 
 the premises prior to such mortgage : Sester- 
 hen V. Sesterhen, 60-301. 
 
 117. A judgment for alimony declared a 
 lien as against property of defendant in an- 
 other county will take priority over a subse- 
 quent attachment of such property, although 
 the attachment is prior to the filing of a tran- 
 script of the lien in the county where the 
 property is situated : HarsTiberger v. Harsh- 
 berger, 26-503. 
 
 118. Setting aside decree: A decree of 
 divorce may be set aside for fraud in obtain- 
 ing it, although plaintiff has remarried and 
 the rights of subsequent innocent parties 
 have intervened: Whitcomb v. Whitcomb, 
 46-487; Bush v. Bush, 46-648; S. C, 48-701. 
 
 119. A decree of divorce which is subse- 
 quently declared void for fraud in its pro- 
 curement is no defense to a prosecution for 
 adultery in cohabiting with a woman to 
 whom the party securing the divorce was 
 married after the divorce was granted and 
 before it was set aside. Such a decree is void 
 not merely from the time of setting aside, 
 but from the beginning : State v. Whitcomb, 
 52-85. 
 
 120. Where a wife procured a decree of 
 divorce in this state by publication, and de- 
 fendant, after having known for nearly a 
 year of such decree, and after having him- 
 self procured a decree of divorce from his 
 wife in another jurisdiction, and, after the 
 wife had remarried, commenced proceed- 
 ings to set aside the wife's divorce on the 
 ground of fraud and obtain a new trial, held, 
 that he had no interest in the matter enti- 
 tling him to any relief, especially in view of 
 the fact that he had taken no steps after 
 
 learning of the decree to assert any rights as 
 against it until after the remarriage of the 
 former wife : Webster v. Webster, 54-153. 
 
 121. Subsequent changes: The statutory 
 provision as to allowance of alimony, etc. 
 (Code, § 3239), is doubtless declaratory of the 
 common law, but the portion of that section 
 authorizing subsequent changes to be made 
 by the court in these respects. When circum- 
 stances render them expedient, doubtless 
 effectuates a change in the law or at least in 
 the method of enforcing it : Fivecoat v. Five- 
 coat, 33-198. 
 
 122. The right to a change in a previous 
 decree as to alimony does not exist after the 
 death of the party against whom the change is 
 sought, and proceedings already commenced 
 therefor abate upon the death of such party: 
 O'Hagan v. O'Hagan's Ex'r, 4-509. 
 
 123. The power of the court to modify the 
 decree is not limited to one year after the 
 rendition thereof, but it retains jurisdiction 
 for that purpose as long as the original judg- 
 ment remains unexecuted and under its con- 
 trol, and even though the parties may have 
 removed from the state: Andrews v. An- 
 drews, 15-423. 
 
 124. The time and manner of application 
 for subsequent changes are left 'largely 
 within the discretion of the court: Jungh v. 
 Jungle, 5-541. 
 
 125. The provisions in the original decree 
 as to alimony, custody of children, etc., are 
 conclusive as to the circumstances of the par- 
 ties at that time, and it is only upon a change 
 in such circumstances that the power to 
 make subsequent changes in the decree is to 
 be exercised. The power to make such 
 changes is not a power to grant a new trial 
 or retry the same case : Blythe v. Blythe, 25- 
 266 ; Wilde v. Wilde, 36-319. 
 
 126. Where the matter of alimony has 
 once been fairly settled, an application for a 
 change ought to be carefully scrutinized, and 
 where an alteration of circumstances is al- 
 leged, the court wiU consider whether it has 
 been brought about by improper conduct of 
 the party asking the change: Fisher v. 
 Fisher, 32-20. 
 
 127. Where a divorce was granted after 
 due acceptance of service by defendant and 
 upon default, and no alimony was claimed 
 or intended to be claimed, held, that defend- 
 
5Y4 
 
 DIVORCE, II — EASEMENTS. 
 
 Changes in decree. — Creation of private way. 
 
 ant could not, in a subsequent proceeding, 
 have a modification of the decree, so as to al- 
 low alimony : Rouse v. Rouse, 47-422. 
 
 128. Whether any other court than the 
 one granting the divorce can mate subse- 
 quent changes in the provisions of the de- 
 cree, qucere. But the jurisdiction of the 
 court granting the divorce is not exclusive 
 in such sense that, a judge of another court 
 cannot make an order in a habeas corpus 
 proceeding as to the custody of a child, and 
 the judge of the court granting the di^s^orce 
 cannot interfere with such order in the 
 habeas corpus proceeding : Shaw v. McHenry, 
 52-182. 
 
 129. The statutory provision as to subse- 
 quent change of decree evidently contem- 
 plates a proceeding brought for the purpose 
 of obtaining such change. In the absence 
 of this being done, a decree entered must 
 amount to an adjudication. Therefore, held, 
 that the rights of a parent to the custody of 
 the children as provided for in the decree of 
 divorce not having been waived or surren- 
 dered, and the parent still being in condition 
 to take caxe of and have the custody of the 
 children, such decree could not be attacked 
 or changed in a collateral proceeding for the 
 custody of the children: Jennings v. Jen- 
 nings, 56-288. 
 
 130. The facts in a particular case held suf- 
 ficient to show that the father, to whom the 
 custody of children was given in a decree of 
 divorce against him, was not a proper person 
 to have charge of them, and a change in the 
 decree was made, giving the custody of the 
 children to the wife and awarding her ali- 
 mony for their keeping : Boggs v. Boggs, 49- 
 190. 
 
 131. Cu-cumstances of a particular case 
 held sufScient to justify modification of a de- 
 cree of divorce, so as to change the custody 
 of a child from one parent to another : Sher- 
 wood V. SJierwood, 56-608. 
 
 132. The provision allowing subsequent 
 changes in the decree held applicable under 
 previous statutes to divorces a vinculo matri- 
 monii, as well as those a mensa et thoro: 
 Jungle V. Jungle, 5-541. 
 
 133. Effect of decree: The party to whom 
 the divorce is granted cannot have any fur- 
 ther right or interest in the property of the 
 other party than that which is given in the 
 
 decree, and cannot claim any share by way 
 of dower in case of survival : Marvin v. Mar- 
 vin, 59-699 ; Boyles v. Latham, 61-174. 
 
 134. A decree of divorce against the wife 
 as the guilty party bars any claim to dower 
 in the property of the husband: McCraney v, 
 McCraney, 5-232, 250. 
 
 DOGS. 
 
 See ANiMAiS, §§ 26-29. 
 
 DOMICILE. 
 
 See Residence, 
 
 DOWER. 
 
 See Estates of Decedents, VI, o. 
 
 DRAINS. 
 
 See Waters. 
 
 EASEMENTS. 
 
 As to Dedication and Highways, see 
 those titles, respectively. 
 
 1. Creation of private way: The grant of 
 an easement to use a way described as " the 
 present road to his (grantee's) timber," held 
 sufficient to convey a private way as an ease- 
 ment over the lands of the grantor, it being 
 shown that the road referred to was a well 
 defined and certain way still in use by the 
 grantee : Roundy v. Bonowitz, 40-44. 
 
 2. An agreement of partition contained the 
 following stipulations : " John has the privi- 
 lege of a road and landing upon the bank of 
 the" M. river, etc., and "it is further dis- 
 tinctly understood that the said John shall 
 have the privilege of a road through the 
 land of the said B. so as to enable him to take 
 the nearest and the best road to Dubuque;" 
 held, that the right stipulated for was an 
 easement in the nature of a reservation, ap- 
 purtenant to the lajid, and passing by con- 
 veyance or devise: Karmuller v. Krotz, 18- 
 852. 
 
 3. When the privilege of a road is created 
 by stipulation and the road is not located by 
 
EASEMENTS. 
 
 575 
 
 Right of way ; light and air. 
 
 the contract, it may be located by agree- 
 ment, or use and acquiescence, and when 
 thus located it cannot be changed except by 
 consent of both parties : Ibid. 
 
 i. Right -of way by necessity : The grantor 
 of premises to which there is no right of way 
 for access is under no obligation to furnish 
 such right of way, in the absence of fraud- 
 ulent representations, and his subsequent 
 promise without consideration to do so, would 
 not be binding : Handrahan v. O' Regan, 45- 
 298. 
 
 5. Common stairway: Where the owners 
 of three contiguous lots erected a block of 
 buildings thereon upon a plan agreed upon 
 between them, by which accession to the en- 
 tire upper story of the block was had by 
 means of one stairway, and afterwards, by 
 mutual consent, each became owner of one 
 of the lots, held, that each acquired the right 
 of way for access to the upper story by means 
 of such stairway erected on the line between 
 two of the lots, and the entries leading there- 
 from, such right being appurtenant to each 
 lot: Thompson v. Miner, 30-386. 
 
 6. Held, also, that the purchaser of any of 
 the lots with knowledge of the plan of con- 
 struction of the building and common use of 
 the stairway and passages was charged with 
 the rights of the other owners therein, and 
 could not extinguish the easement : Ihid. 
 
 7. Where the owners of adjoining build- 
 ings, by contract, stipulated that the third 
 stories should be occupied together as one 
 haU, with access thereto by a common stair- 
 way on the property of one proprietor, with 
 a partition of profits, and allowance for use 
 of such stairway, held, that upon proof that 
 the separate use of the property would be 
 more profitable and by consent, partition 
 and separate use might be decreed ; but that 
 the right to the common use of the stairway 
 exclusively for access to the third story re- 
 mained upon the same terms of compensa- 
 as before : First Nat. Bank v. Taylor, 44^343. 
 
 8. Right of footway, not in connection 
 with a right to pass with carriages, cannot 
 be acquired by prescription or adverse use 
 for any length of time. So held in reference 
 to a hallway on the second floor of a build- 
 ing: Willardv. Calhoun, 70 . 
 
 9. Mill-race: Where the owner of land 
 consents to the construction of a miU-race 
 
 thereon and allows money to be expended on 
 the strength of such consent, an easement is 
 created which is irrevocable, and may be 
 transferred in connection with the estate to 
 which it is appurtenant: Decorah Woolen 
 Mill Co. V. Greer, 49-490. 
 
 10. Easemcntdistingnished from license: 
 A license is an authority to do a particular 
 act, or series of acts, iipon another's land, 
 without possessing any estate therein, and is 
 not assignable, nor within the statute of 
 frauds ; while an easement is a permanent in- 
 terest in another's land, and must be founded 
 upon a grant in writing or upon prescription. 
 In a particular case, held, that a written con- 
 veyance manifesting the intention to grant a 
 privilege in land distinct from the ownership 
 of the soil, and as contra-distinguished from 
 the mere authority to do an act or series of 
 acts upon it, created an easement and was 
 not a mere license : Cook v. Chicago, B. & Q. 
 R. Co., 40-451. 
 
 11. Implied easement: The doctrine of 
 implied easements rests upon the supposed 
 intention of the parties as deduced from the- 
 situation and condition of the two estates; 
 Morrison v. Marquardt, 24-35. 
 
 12. Light and air: In a particular case 
 certain conditions and circumstances were 
 held to negative an implication of a grant of 
 an easement in light and air. The law of 
 easements in light and air discussed : Ibid. 
 
 13. Right of way: The conveyance to a 
 railroad company of a right of way for its 
 railroad simply conveys an easement : Brown 
 V. Young, 69-625. 
 
 As to right of way for Highways and 
 !^AILWATS, see those titles respectively. 
 
 14. Use of private way, gates, etc.: 
 Where a private right of way ran angling 
 through an eighty-acre tract of land, and it 
 was evident that it was not intended that such 
 right of way should be fenced off from the 
 remainder of the tract, held, that the erec- 
 tion and maintenance of a gate at the en- 
 trance by the owner of the land, to protect 
 his inclosure, was not inconsistent with a 
 reasonable use of the right of way by the 
 party entitled thereto, and that the latter 
 was liable for damages for removing such 
 gate so as to leave the inclosure open : Houpes 
 V. Alderson, 33-160. 
 
 15. Facilities for passage, where a private 
 
576 
 
 EASEMENTS — ELECTIONS. 
 
 Conveyance; non-user. — Notice of election. 
 
 right of way exists, are to be regulated by 
 the nature of the place and the circumstances 
 of the case; and under particular circum- 
 stances, held, that the owner of the right of 
 way was not entitled to an open road: 
 Amondson v. Severson, 37-603. 
 
 16. Where the right of way over a strip of 
 land was purchased to be used for access to 
 the highway, which, at the time of acquisi- 
 tion, was bounded upon one side by a fence, 
 the purchaser agreeing to erect a fence on 
 the other side, Jield, that it would be pre- 
 sumed that it was not intended that the out- 
 let of the right of way at the highway should 
 be closed by a fence and gate : Devore v. Ellis, 
 62-505. 
 
 17. As to division of dominant estate: 
 While an easement appurtenant to an estate 
 is so to every part of it, whatever the sub- 
 division at the time or subsequently, it is 
 equally true that the servient estate is not to 
 be burdened to a greater extent than was 
 contemplated at the creation of the easement. 
 In determining the rights of parties, title 
 papers are to be construed in the light of sur- 
 rounding circumstances, and a subsequent 
 sale of a part of the dominant estate cannot 
 operate to extend the original right, nor to 
 increase the burden upon the servient estate. 
 The grant of a right of way construed under 
 th6 facts of a particular case: Brossart v. 
 Corlett, 37-288. 
 
 18. Easement in undivided interest: 
 There cannot be any easement in an undi- 
 vided interest, for the reason that it could 
 not be enjoyed without infringing upon the 
 rights of the other owners in common : Wil- 
 lard V. Calhoun, 70 . 
 
 19. Conveyance: The use of the word " ap- 
 purtenance " is not necessary to pass an ease- 
 ment with the grant or devise of the princi- 
 pal thing to which it is incident : Karmuller v. 
 Erotz, 18-353. 
 
 20. An apparent, visible easement, attached 
 to and actually used and continuously en- 
 joyed in connection with a farm, will pass by 
 implication as an incident to the grant of the 
 farm: Wetherell v. Brobst, 33-586. 
 
 21. An easement appurtenant to land wUl 
 pass with a conveyance of the land with- 
 out express grant, but in such case the ease- 
 ment must be actually appurtenant by use 
 and enjoyment, that is, practically annexed 
 
 to the granted premises: Decorah Woolen 
 Mill Co. V. Greer, 49-490. 
 
 23. Non-nser; adverse possession: An 
 easement acquired by express grant and not 
 by prescription is not extinguished by non- 
 user, if the owner of the servient estate does 
 no act which prevents the use : Noll v. Dur 
 bugue, B. <& M. R. Co., 33-66. 
 
 23. There must be some use adverse to 
 that of the grantee to extinguish an ease- 
 ment: Barlow v. Chicago, B. I. & P. B. Co., 
 29-276. 
 
 24. Damages: Where the plaintiff sued 
 for damages resulting from the destruction 
 of his mill-race by back-water from another 
 dam, held, that the fact that it was not enti- 
 tled to maintain such easement upon a cer- 
 tain lot which it crossed would not defeat its 
 right to damages against defendant, it being 
 at the time of the injury in the undistui'bed 
 possession and enjoyment of such easement: 
 Decorah Woolen Mill Co. v. Greer, 49-490. 
 
 25. Where defendant destroyed a building 
 upon which the plaintiff had an easement, 
 held, that plaintiff could elect to have the 
 building restored at defendant's expense, or 
 claim damages: Morrison v. Marquardt, 
 24-35. 
 
 EJECTMENT. 
 
 See Real Propeety, IL 
 
 ELECTIONS. 
 
 As to school elections, see Schools. 
 
 1. Notice of: Where the time of the regu- 
 lar election is fixed by law, such time is to be 
 taken notice of judicially: Davis v. Best, 
 2-96. 
 
 2. Failure to give proper notice of an elec- 
 tion will not invalidate it. In matters of 
 such public nature the observance of the par- 
 ticular requirement is not a prerequisite to 
 validity, and the statutes as to notice are to 
 be deemed directory. The people are not to 
 be disfranchised or deprived of their voice 
 by the omission of some duty by an ofiScer: 
 Dishon v. Smith, 10-313. 
 
 3. If an election has in fact been held at 
 the proper time, and it is not alleged or 
 shown that any portion of the electors failed 
 in knowledge of the pendency of the question 
 
ELECTIONS. 
 
 5TT 
 
 Qualifications of voter. 
 
 Bubmitted at such election, or to exercise 
 their franchise, it will not be held void on 
 account of want of notice : Ibid. 
 
 4. Wliere a proposition is submitted for 
 ratification at an election, it is necessary that 
 the voters shall be advised of the nature or 
 terms of the contract or proposition sub- 
 mitted, and when or where they are called 
 upon to express by vote their assent or dis- 
 sent: Page County v. American Emigrant 
 Co., 41-115. 
 
 5. The manner and form of notice is not 
 essential if there has been suiScient notice 
 in fact upon which the voters of the county 
 have acted; and in a particular case, held, 
 that a notice of submission of a proposition 
 for the disposition of swamp lands by the 
 county was sufficient although such notice 
 was not in the form required by statute: 
 Ibid. 
 
 G. Qnaliflcations of vottr; residence: 
 By going into a township and remaining 
 there for the sole purpose of voting, with no 
 intention of remaining longer, one will not 
 acquire sufficient residence to entitle him to 
 vote; but if the removal is in good faith, no 
 length of residence is necessaiy: State v. 
 Minnick, 15-123. 
 
 7. If no requirements as to the length of 
 residence were contained in the constitution, 
 the legislature might fix such length of resi- 
 dence as it should see fit: Morrison v. 
 Springer, 15-304. 
 
 8. The residence of a voter is the place of 
 his domicile or place of abode, as distin- 
 guished from the residence acquired as a 
 sojourner for business, education or other 
 temporary purpose. Therefore, held, that a 
 student in the university at Iowa City, sent 
 there and supported by his father, and 
 making his father's home his "headquar- 
 ters" during vacation, was not entitled to 
 vote in Iowa City though he had been there 
 the requisite length of time, and had no 
 present intention of leaving there when he 
 ceased to attend the university : Vanderpoel 
 V. O'Hanlon, 53-246. 
 
 S). If the ballot of a voter is received it is no 
 gi'onnd of complaint that an improper oath 
 has been administered to him touching his 
 qualifications : State ex ret v. ODay, C9-368. 
 
 10. fersniis in military service: Asoldier 
 serving in the volunteer forces of the federal 
 Vol. 1—87 
 
 government does not thereby lose nor change 
 his place of residence, which remains that of 
 the county of his residence at the time of 
 entering the service ; and if he should be in 
 such county on the day of election he would 
 unquestionably have the right to vote, if 
 otherwise qualified: Morrison v. Springer, 
 15-304. 
 
 11. And held, that the legislature may 
 authorize the casting of ballots by soldiers at 
 points where they are stationed outside the 
 state: Ibid. 
 
 12. Under the statute authorizing persons 
 absent from the state in military service to 
 vote at general elections, held, that the sub- 
 mission of a proposition for the disposition of 
 swamp lands at a special election at which 
 persons in the military service could not 
 vote, was not illegal : Cedar Rapids & M. B. 
 R. Co. V. Boone County, 34-45. 
 
 13. Registration : The statutory provision 
 requiring the registi-y of voters is not in con- 
 flict with the provisions of the constitution 
 prescribing the qualifications of electors : Ed- 
 monds V. Banbury, 28-367. 
 
 14. An election held without registry in a 
 place where registration is required by law is 
 void. The provisions of the law are man- 
 datory and imperative: Nefzger v. Davenport 
 <& St. P. R. Co., 36-643. 
 
 15. Place: Wliere the time, place and man- 
 ner of holding elections are not presci-ibed by 
 the constitution but committed to the legis- 
 lature, the reception of votes out of the pre- 
 cinct or the county of elector's residence may 
 be constitutionally authorized: Morrison v. 
 Springer, 15-304. 
 
 16. How long polls kept open: Where 
 the polls at a school district election were 
 kept open only forty minutes, and after the 
 meeting had formally adjourned, and while 
 the oflicers and electors were still present, 
 electors who applied to vote were refused per- 
 mission to do so, held, that the election wag 
 invalid: State ex ret v. Wollem, 37-131. 
 
 ■ 1 7. So where, at such an election, the polls 
 were only kept open for thiity minutes, and 
 soon after they were closed voters appeared 
 and offered their votes, the other electoi s being 
 still present, held, that it was error to re- 
 fuse such votes, although the meeting had, 
 by formal motion, adjourned: State ex ret v. 
 Woohm, 39-380. 
 
578 
 
 ELECTIONS. 
 
 Form of ballot; canvassing ballots"; returns. 
 
 18. Form of ballot: In canvassing votes 
 of electors their intention must be ascer- 
 tained by their ballots, which must be 
 counted to accord with such intention. If 
 tlie ballots express such intention beyond a 
 reasonable doubt, it is sufficient without re- 
 gard to technical inaccuracies or the form 
 adopted b}' the voter to express his intention. 
 The language of the ballot is to be construed 
 in the light of facts connected with the elec- 
 tion : Hawes v. Miller, 56-395. 
 
 10. In voting upon a proposition to au- 
 thorize a county to issue bonds in aid of a 
 railway, held, that ballots containing the 
 words "for the Lyons railroad," or "against 
 the Lyons railroad," were sufficiently specific : 
 State ex rcl. v. Bissell, 4 G. Gr., 328. 
 
 20. Where in a ballot upon the question of 
 the removal of a county seat, the name of the 
 place voted for being . that by which the 
 location of the county seat was generally 
 designated, although it was not thus desig- 
 nated in the proposition for the election, 
 held, that the judges of election might prop- 
 erly exercise the ministerial power of counting 
 such vctes in favor of the existing location 
 of the county seat, especially when it was 
 shown that the ballots were actually cast in 
 favor of that place: State v. Cavers, 32-343. 
 
 2 1 . At an election where the ballots were to 
 be for or against a proposition to levy a tax, 
 certain ballots read " Against taxation for the 
 benefit of i-ailroad companies or any other 
 monopolies. To the indebtedness of the poor 
 man," held, that the ballot was not condi- 
 tional but a valid ballot against the proposi- 
 tion for levying a tax: Cattell v. Lowry, 
 45-478. 
 
 22. Where the board of supervisors is in- 
 creased as authorized by law, the additional 
 members are not to be designated on the bal- 
 lots for their election in any different manner 
 from the others : Bradfieldv. PFari, 86-391. 
 
 23. Canvassing ballots: The board of 
 supervisors and not the township trustees 
 are to canvass the ballots for justice of the 
 peace : Lynch v. Vermazen, 61-76. 
 
 24. The constable is properly a township 
 officer although he is to be voted for like a 
 justice of the peace as a county officer by the 
 voters of his township (Code, § 598) : State v. 
 Bevans, 37-178. 
 
 25. Evidence as to a mistake in a count of 
 
 the ballots as to one candidate is immaterial 
 upon the question as to whether there was a 
 mistake in the count as to another candidate: 
 Mcintosh V. Livingston, 41-319. 
 
 26. Returns: Where an officer was author- 
 ized to examine the returns of an election for 
 a county seat, and on being satisfied that 
 either place voted for had a greater number 
 of votes than the other, the record of such re- 
 sult was to be made, held, that he had no 
 authority to inquire into the legality of the 
 votes cast, but was bound by the returns as 
 niade to him : United States ex rel. v. Com- 
 missioners, Mot., 31. 
 
 27. The action of the boai-d in canvassing 
 returns is ministerial rather than judicial. 
 Nor is there any discretion to be exercised. 
 The board has no authority to judge of the 
 validity of returns or of votes. Its duty is to 
 receive the returns and count them, provided 
 they are sufficiently proved to be such, al- 
 though irregular. So held in regard to the 
 canvass of votes at a special election as to the 
 relocation of a county seat : State ex rel. v. 
 County Judge, 7-186 ; State ex rel. v. Bai- 
 ley, 7-390. 
 
 SS. The canvassers may reject improper 
 returns, such as are not properly signed, or 
 have not been in the proper custody, or have 
 been mutilated or changed ; and after they 
 have declared the result they may, by man- 
 damus, be compelled to reassemble and re- 
 canvass the vote to correct a mistake in 
 improjjerly rejecting returns : Price v. Har- 
 ned, 1-473. 
 
 29. So the board may be compelled to 
 correct a mistake in counting improper re- 
 turns : State ex rel. v. County Judge, 13-189, 
 
 30. Although a canvassing board has not 
 judicial authority to hear testimony and 
 determine the legality of the votes returned, 
 yet it may be required to exercise a judg- 
 ment or opinion. So where there appeared 
 to be an alteration of the return, held, that 
 the board might determine the number of 
 votes therein reported, and in so doing their 
 discretion could not be controlled by writ of 
 mandamus: State ex rel. v. Bailey, 7-390. 
 
 31. In a case involving the validity of 
 votes cast at an election the court is not pre- 
 cluded by the return, but he may receive 
 evidence as to the compliance with the law 
 on the part of the officers of the election, and 
 
ELECTIONS. 
 
 579 
 
 Failure of officers of election to qualify ; mandamus ; injunction. 
 
 may therefore receiYe evidence that the offi- 
 cers were duly sworn, although such fact 
 does not appear on the face of the return : 
 Dishon v. Smith, 10-313. 
 
 33. Where two corresponding returns were 
 made out by the judges of election, a&e of 
 which was on its face informal and unauthen- 
 ticated, and the other was formal and on its 
 face duly authenticated, held, that the county 
 board of canvassers could not refuse to receive 
 evidence aliunde to establish the former, and 
 yet receive such evidence to defeat the latter, 
 but must count the votes as returned : .State 
 V. Cavers, 33-343. 
 
 33. Failure of officers of election to qual- 
 ify: Failure of officers of election to be sworn 
 as required by law will not vitiate the elec- 
 tion. The return is not conclusive in this 
 respect, and the fact that the officers were 
 sworn may be proved aliunde: Dishon v. 
 Smith, 10-312. 
 
 84. Mandamus against board of canvass- 
 ers: Mandamus is the proper remedy to com- 
 pel the canvassers to declare elected and 
 certify to the election of the party receiving 
 the highest number of votes: Bradfield v. 
 Wart, 36-291. 
 
 35. Where the canvass of votes at an elec- 
 tion was to be made by the county judge 
 calling to his assistance two justices of the 
 peace, and an action by mandamus was in- 
 stituted to compel a recanvass, held, that 
 such mandamus properly issued to the judge 
 alone and not to the board as originally con- 
 stituted: State ex rel. v. County Judge, 7- 
 186; Rice v. Smith, 9-570. 
 
 30. Where a writ of mandamus was 
 granted to compel a reassembling of the can- 
 vassing board of the county by the county 
 judge for the purpose of recanvassing the 
 returns, held, that the primary writ should 
 issue to such county judge in his individual 
 name, and that upon failure of the other 
 members of the board summoned by him, in 
 pursuance of law, to constitute such board 
 and canvass such returns to comply with the 
 vsrrit, an alias writ might be directed to such 
 other members, and a proper canvass com- 
 pelled : State ex rel. v. Smith, 9-834 
 
 37. Injunction: Although mandamus 
 may have issued to compel a board of can- 
 vassers to count and record the votes con- 
 tained in certain returns, yet an injunction 
 
 restraining any action under the count as 
 thus recorded will not be improper or incon- 
 sistent with the mandamus if it appears that 
 the votes which the board is directed to can- 
 vass should not be counted owing to matters 
 existing outside of the returns: Dishon v. 
 Smith, 10-313. 
 
 38. Certificate: It is not fatal to the cer- 
 tificate that it does not contain full particu- 
 lars as to the time and place of the election. 
 The caption and the certificate may be taken 
 together: Ibid. 
 
 39. Where it was required that a certificate 
 of the election, at which a railroad aid tax 
 was voted, should be certified by the clerks 
 of the election, held, that a certificate signed 
 by the judges and attested by the clerks was 
 sufficient : Casady v. Lowry, 49-523. 
 
 ' 40. Excessive votes : The board, of super- 
 visors should not order a new election for a 
 county officer on the ground that there ap- 
 pears to be an excess of ballots, unless there 
 is an excess of ballots as to the particular 
 officer. The fact that there is an excess of 
 ballots as to one office will not invalidate the 
 election as to another office as to which there 
 is no excess : Ranldn v. Pitkin, 50-313. 
 
 41. Bribery and undue influence: Where 
 before election a candidate for a county office 
 offered and held out as an inducement to ob- 
 tain votes that he would perform the duties 
 of the office for a less amount than the fees 
 provided by law, and turn the balance of the 
 fpes into the county treasury, held, that this 
 was the offer of a bribe by the officer to the 
 electors, and his election might be contested 
 under the provision of statute invalidating 
 the election on the ground of bribery : Car- 
 jrothers v. Russell, 53-346. 
 
 42. It does not constitute bribery at an 
 election to relocate a county seat for persons 
 interested in the location at a particular place 
 to agree to give or furnish facilities for the 
 convenience of the whole county, such as to 
 agree to give property or money which wiU 
 be for the advantage of the whole county, as, 
 for instance, land on which to erect buildings, 
 money for the erection of a bridge and. high 
 school building, etc. : Dishon v. Smith, 10- 
 313; Hawes v. Miller, 56-395. 
 
 43. Where an agent authorized to repre- 
 sent a railway company in securing the adop- 
 tion of a proposition to levy a tax in behalf 
 
580 
 
 ELECTIONS — EQUITY, I. 
 
 Bribery, etc. ; contests. — Jurisdiction. 
 
 of such railway, held out as an inducement 
 to voters to vote the tax that the company 
 would pay them fifty per cent, on the dollar 
 for their certificates when issued, and there- 
 by influenced the action of some of the voters 
 at such election, held, that the tax was there- 
 by rendered illegal: Chicago, M. & St. P. R. 
 Co. V. Shea, 67-728. 
 
 44. Where, at an election to pass upon a 
 contract for the sale of swamp land, improper 
 inducements by way of personal advantage 
 were held out to the electors of the county, 
 held, that the contract thus ratified by them 
 could not be enforced : Palo Alto County v. 
 Harrison, 68-81. 
 
 45. To constitute fraud in the submission 
 of a proposition at a special election, there 
 must be some showing of aitifice to conceal 
 material facts within the knowledge of the 
 persons submitting the proposition to vote, 
 and which are not open and obtainable by 
 cSthers. There cannot be deemed to be a 
 fraudulent concealment of matters which are 
 public, and can be as well known to the people 
 and voters as to the officers submitting the 
 question to vote: Starr v. Board of Super- 
 tisors, 22-191. 
 
 Further as to illegal voting, see Criminal 
 Law, II, 6, b. 
 
 46. Liability of officers: Certain duties 
 being imposed by law on the members of the 
 board of supervisors in relation to canvassing 
 votes cast at elections, the performance of 
 such duties will be enforced by writ of man- 
 damus, but an action will not lie to recover 
 damages caused by reason of non-perform- 
 ance of such duties: Jayne v. Drorbaugh, 
 63-711. 
 
 As to submission of propositions to levy 
 tax for erection of county buildings, etc., see 
 Municipal Cobpoeations, §§ 873-883. 
 
 As to submission of a proposition to change 
 the county seat, see MtrNiciPAL Coepoka- 
 TiONS, §g 780-802. 
 
 As to eligibility to office, qualification of 
 officers, etc., see Officers. 
 
 47. Contesting- elections: Whether notice 
 of appeal in proceedings to contest an elec- 
 tion should be in writing, quaere; but where 
 verbal notice was given at the time the judg- 
 ment of the court of contest was rendered, 
 and the parties then agreed as to the disposi- 
 tion to be made of the ballot-box, held, that 
 
 the notice was sufficient under the circum- 
 stances : Mcintosh v. Livingston, 41-219. 
 
 EMINENT DOMAIN. 
 
 See Constitutional Law, I, h. 
 
 EQUITY. 
 
 I. JtJEISDICTION IN QENEKAL, AND GENERA! 
 PBINCrPLES. 
 
 n. Particular heads of equitable jtj- 
 
 RISDICTION AND RELIEF. 
 
 a. Cancellation, setting aside, rescis- 
 
 sion, correction, and reforma- 
 tion, of instruments. 
 
 b. What constitutes such fraud or 
 
 mistake as to warrant equitable 
 relief. 
 
 c. Relief against Judgments. 
 
 d. Marshaling assets. 
 
 e. Quieting tHle. 
 
 {. Miscellaneous cases. 
 III. Pleading and procedure. 
 
 As to Pleading and Practice, iii general, 
 see those titles. 
 
 As to trial de novo in equity cases on ap- 
 peal, see Appeals, VII, d. 
 
 As to abatement of nuisances in equity, see 
 Nuisances. 
 
 As to what actions are to be brought in 
 equity, and the efifect of error in that respect, 
 see Actions, §§ 19-44. 
 
 Jurisdiction of equity as to charitable 
 trusts, see Trusts. 
 
 Jurisdiction to set afeide an award, see 
 Arbitration, § 51. 
 
 As to equitable assignments, see Assign- 
 ment, rv. 
 
 I. JUEISDICTIOJT IN GENEEAL, AHD GEN- 
 ,EEAL PRINCIPLES. 
 
 1. To prevent failure of justice: Where 
 from any defect in the common law, want 
 of foresight in the parties, or other mis- 
 take or accident, there would be a failure 
 of justice, it is the duty of a court of equity 
 to supply the defect and furnish a remedy: 
 Preston v. Daniels, S G. Gr., 536. 
 
 2. Authority to sue: A court of equity 
 cannot empower a person to bring an action 
 where the right does not already exist, and 
 
EQUITY, I. 
 
 681 
 
 Jurisdiction in general, and general principles. 
 
 where it does exist no equitable relief is nec- 
 essary: Getchell v. McGuire, 70 . 
 
 8. Remedy in personam : In cases of fraud, 
 of trust, or of contract, the jurisdiction of 
 the court of chancery is sustainable wher- 
 ever the person is found, although real prop- 
 erty not within the jurisdiction of the court 
 may be affected by the decree. When the case, 
 however, involves the naked question of title, 
 the courts of a state other than that where 
 the land is situated cannot entertain jurisdic- 
 tion : MacGregor v. MacGregor, 9-65. 
 
 4. The principle is that in all cases of 
 equity the primary decree is in personam and 
 not in rem, and that in these cases peculiarly 
 the courts, having authority to act on the 
 person, may make decrees not binding upon 
 the land itself, and compel the person to per- 
 form his contract or execute his trust or an- 
 swer for his fraud according to conscience 
 and good faith : Ibid. 
 
 5. Therefore, held, that courts of one state 
 having jurisdiction over the person of a 
 trustee might inquire as to the disposition of 
 the trust fund claimed to have been invested 
 in land in another state : Ibid. 
 
 0. Extension of equifable jurisdiction: 
 Although courts of equity did not, at the 
 time of the adoption of the state constitution, 
 have jurisdiction to abate a nuisance in a 
 case not involving property rights, yet it 
 is competent for the legislature to enlai-ge 
 the jurisdiction of the court in such cases, so 
 as to embrace cases in which property rights 
 are not involved : Littleton v. Fritz, 65-488. 
 
 7. The eircnit court, as originally organ- 
 ized, was given jurisdiction in actions at law, 
 and to try and determine equitable issues 
 arising in actions at law. But these provis- 
 ions were held not sulficient to confer upon 
 those courts general chancery jurisdiction or 
 power to administer equitable relief although 
 asked by plaintiff in an action at law, with- 
 out objection by defendant, such power be- 
 ing beyond the jurisdiction of the court: 
 Walker v. Kynett, 33-524. 
 
 8. So, also, it was held as to such courts, 
 that although they were given jurisdiction 
 of actions to foreclose mortgages, yet where 
 it was sought in the same action to set aside 
 the satisfaction of a mortgage already en- 
 tered, the court had no jurisdiction : Molly 
 V. Molly, 31-60. 
 
 9. Justices of the peace have no equitable 
 jurisdiction : David v. Ryan, 47-642, 646. 
 
 10. Where there is an adequate remedy 
 at law: The doctrine is elementary that a 
 party who has a plain, speedy and adequate 
 remedy at law cannot resort to an action in 
 equity: Council Bluffs v. Steicart, 51-385{ 
 Claussen v. Lafrenz, 4 G. Gr., 224; Brainard 
 V. Holsaple, 4 G. Gr., 485. 
 
 1 1. That the complainant has an adequate 
 remedy at law is a ground of demurrer to a 
 bill in equity: Preston v. Daniels, 2 G. Gr., 
 586. 
 
 12. Jurisdiction to award compensation 
 for damages does not ordinarily attach in 
 equity where it does not appear but that the 
 party has a, perfect remedy at law : Notson 
 V. Barrett, 1 G. Gr., 302. 
 
 13. A contract wUl not be rescinded in 
 equity for mistake, unless it appears that an 
 injury will result for which the party will 
 have no adequate remedy at law : Morse v. 
 Beale, 68-463. 
 
 14. Where the party has two remedies 
 given by law, one legal and the other equita- 
 ble, he has his election, and cannot be com- 
 pelled to take either one in preference to the 
 other: Barron v. Easton, 3-76. 
 
 And further on this point, see INJUNCTION, 
 
 g§ 1-8. 
 
 15. Where equity acquires jurisdiction 
 for a proper purpose, it will retain jurisdic- 
 tion and give a complete remedy, even 
 though by so doing it may be deciding mat- 
 ters clearly belonging to a court of law, and 
 it will do complete and equal justice to the 
 parties : Franklin Ins: Co. v. McCrea, 4 G. 
 Gr., 239. 
 
 16. Thus if plaintiff shows himself entitled 
 to the premises in controversy, the court may 
 decree a surrender of possession to him with- 
 out turning him over to his common law 
 action for possession : Thatcher v. Haun, 13- 
 303. 
 
 1 7. Where a court of equity obtains juris- 
 diction over the parties for any purpose, it 
 will, in order to secure equity and justice be- 
 tween them, retain the cause until the con- 
 troversy is finished : McDowell v. Lloyd, 23- 
 448. 
 
 18. Therefore, held, that in an action to 
 foreclose a mortgage for the first instalment 
 of the mortgage debt falling due, the court 
 
582 
 
 EQUITY, I. 
 
 Jurisdiction in general, and general principles. 
 
 having obtained jurisdiction would retain 
 the cause until the whole debt fell due, that 
 a foreclosure might be ordered if the other 
 instalments of the debt were not paid : Ibid. 
 
 19. In an action in equity to reform a deed 
 for the purpose of correcting a mistake the 
 court will retain jurisdiction and award to 
 plaintiff complete relief, including such dam- 
 ages as should rightfully appear to be due 
 Mm : Wright v. McCormidk, 33-545. 
 
 20. Where a party is compelled to resort to 
 a court of equity to annul a contract, such 
 court having obtained jurisdiction of the 
 parties and the subject-matter in the con- 
 troversy, will, in order to administer full and 
 equitable relief, retain the case and do com- 
 plete justice, though it is necessary to adopt 
 and apply remedies that could have been 
 sought at law : McMurray v. Van Qilder, 56- 
 605. 
 
 21. Where the subject-matter and the par- 
 ties are before the court, the party seeking 
 relief will not be sent out of court to com- 
 mence a new action which would place the 
 parties in the same position they occupied 
 previous to the dismissal: Joliet Iron, etc., 
 Co. V. Chicago, C. & W. R. Co., 51-300; 
 Young v. Tucker, 39-596. 
 
 23. Where equity has acquired jurisdiction 
 of a cause, it will grant relief although a 
 remedy could have been had in an action at 
 law : Whiting v. Boot, 53-393. 
 
 23. Where, on a proper case made, a court 
 of equity obtains jurisdiction, it will not be 
 ousted of its jurisdiction by facts subse- 
 quently developed which prevent the grant- 
 ing of equitable relief, but may retain the 
 case and grant such relief as might have been 
 had in a court of law: Rentin v. Sill, 49- 
 370. 
 
 24. When a court of equity obtains juris- 
 diction, it will retain it even though the re- 
 lief be ultimately a mere money judgment : 
 Sosleton v. Dickinson, 51-344. 
 
 25. While money paid by mistake may be 
 recovered in an action at law, yet if, for any 
 reason, the case is of equitable cognizance, 
 the party will not be required to go to an- 
 other forum to recover, but will have full 
 relief in equity: Rose v. Schaffner, 50-483. 
 
 26. While if equity has properly acquired 
 jurisdiction for any purpose it may retain 
 the case and grant proper relief by way of 
 
 damages, it cannot do so when jurisdiction 
 is wanting for any purpose, recognized as 
 a ground of equitable jurisdiction: Rich- 
 mond V. Dubuque & S. C. R. Co., 33-433, 
 489. 
 
 27. In an action in equity, the judgment 
 may properly cover damages accruing after 
 the commencement of the suit up to the 
 time of final judgment: Ibid., 504. 
 
 28. Where plaintiff removed a proceeding 
 by defendant to foreclose a chattel mortgage 
 into the circuit court, claiming that by pre- 
 vious transactions the debt had been paid, and 
 demanding an accounting of defendant, and 
 upon such accounting being made it appeared 
 that defendant was entitled to an additional 
 sum on account beyond that claimed in the 
 foreclosure proceeding, held, that it was 
 proper in such equitable action to grant the 
 foreclosure of the mortgage and also give 
 judgment for the amount due on account: 
 Wakefield v. Ballard, 49-344. 
 
 29. He who seeks equity mnst do equity: 
 Ingle t>. Culbertson, 43-365; Ingle v. Jones. 
 43-386; Parsons v. Nutting, 45-404; Strong 
 V. Burdick, 53-630 ; Anamosa v. Wurtzbacher, 
 37-35. 
 
 30. Therefore where a party is in con- 
 science bound to pay a certain sum of money, 
 which together with the amount which he is 
 not legally bound to pay is brought as a legal 
 claim against him, equity will not restrain 
 the collection of the whole, unless he pays or 
 tenders the sum legally owed: MotTison v. 
 Htrshire, 33-371. 
 
 31. Where relief was sought as against an 
 administrator's sale by an equitable action 
 to set it aside, held, that failure of plaintiff 
 to offer to restore to the purchaser the pro- 
 ceeds of the sale was not a ground of de- 
 murrer, it not appearing but that by reason 
 of receipt of rents and profits or in some 
 other way the right of the purchaser to have 
 the purchase money refunded had been ex- 
 tinguished : Washburn v. Carmichael, 33-475. 
 
 32. Where a party goes into equity to have 
 a judgment set aside, and it appears that 
 some amount is justly due on the claim on 
 which judgment was rendered, he is not en- 
 titled to relief unless he offers to pay the 
 amount due or allows judgment to be ren- 
 dered for such amount: Byers v. Odell, 56- 
 618. 
 
EQUITY, I, II, a. 
 
 683 
 
 General principles. — Equitable jurisdiction and relief. 
 
 33. Where a party claims that an assess- 
 ment for improvements is grossly inequitable, 
 he cannot have relief from such assessment 
 without paying or offering to pay the portion 
 thereof which is justly due : Orimmell v. Des 
 Moines, 57-144. 
 
 34. Where a party seeks in equity to set 
 aside a tax sale, valid on its face, by reason 
 of want of authority on the part of the officer 
 to make it, he should be required to pay tlie 
 amount of taxes paid by the purchaser in 
 pursuance of such sale: Gardner v. Early, 
 69-42. 
 
 35. Where the grantee of property con- 
 veyed as a gift sought to have her title to 
 such property quieted, held, that a decree to 
 that effect should contain the provision that 
 the property was subject to the lien of an 
 obligation which was a condition of the gift, 
 that the grantee should furnish one-third of 
 the support of the donor during life : Wams- 
 ley^v. Linziaum, 68-556. 
 
 38. The principle that he who asks equity 
 must do equity is not applicable except 
 where it is invoked agninst a party seeking 
 afiSrmative relief : White v. Secor, 58-533. 
 
 37. Regarding that done which ought to 
 be done: The equitable rule which regards 
 that as done which a party has agreed to do 
 only applies where a party has bound him- 
 self independently of anj^ contingency which 
 may or may not occur : Ball v. Keokuk & N. 
 W. R. Co., 63-751. 
 
 38. Laches; st.ntnte of limitations: A 
 claim satisfactorily established will not be 
 regarded as stale by a court of equity and 
 its enforcement refused when it has not run 
 for a period that is necessary to create a bar 
 under the statute of limitations: Cotton v. 
 Wood, 25-43. 
 
 30. The doctrine of equity which denies 
 relief to parties guilty of laches is restrained 
 as a general rule to a case where third per- 
 sons have during the delay acquired rights, 
 or the opposite party has so changed his sit- 
 uation that he would be prejudiced by allow- 
 ing plaintiff to assert his rights : Williams v. 
 Allison, 33-378. 
 
 40. An action to rescind or set aside a con- 
 tract must be brought promptly. Equity 
 will not enforce a stale demand. If the ac- 
 tion is not brought within a reasonable time, 
 relief will be denied, although the statute of 
 
 I 
 
 limitations is not pleaded : Briggs v. Jasper 
 County, 49-481. 
 
 41. Where more than twelve years had 
 elapsed between a. settlement and the com- 
 mencement of an action in which its coiTect- 
 ness was called in question, held, that any 
 claim based upon the incorrectness of the 
 settlement was stale and would not be sus- 
 tained : Clute V. Frasier, 58-208. 
 
 42. Whore, by the laches of plaintiff in, 
 execution and the officer making a sale of 
 real property thereunder, the plaintiff as 
 purchaser faUed to get title to defendant's 
 property, lield, that he was not entitled to 
 relief in equity as against the consequences 
 of such laches: BuicJier v. Buchanan, 17-81. 
 
 43. It is not in the province of a court of 
 equity generally to extend the statute of lim- 
 itations or relieve from its operation, except 
 where the statute itself so provides; and where 
 a party relying upon the mail sent his claim 
 to be filed against an assignee, and the same 
 was lost, and he did not attempt to ascertain 
 whether it was filed or not until after the 
 time for filing claims had passed, held, that 
 he had no ground for equitable relief : Smith 
 V. Wheeler, 58-659. 
 
 That the statute of limitations is binding 
 upon courts of equity, see Limitation of 
 Actions, §§ 1-3. 
 
 44. Legal title will prevail: Where the 
 equities of two claimants to property are 
 equpl and one of them has, without fraud, 
 acquired the legal title, such title will be pro- 
 tected : Preston v. Turner, 36-671. 
 
 II. Paeticulae heads of equitable 
 
 J0EISDICTION and EELIEF. 
 
 a. Cancellation., setting aside, rescis- 
 sion, correction, and reformation., 
 of instruments. 
 
 45. Rescission, or cnncellatioii : The 
 
 cases in which equity relieves by setting aside 
 or rescinding deeds, obligations, or contracts, 
 are founded upon actual fraud in obtaining 
 the obligation or contract, or upon construct- 
 ive fraud against public policy : Brainard v. 
 Holsaple, 4 G. Gr., 485. 
 
 46. Equity m9,y properly set aside a con- 
 tract made by officers of a corporation for the 
 purpose of protecting the corporation from 
 frauds attempted to be committed by persons 
 
684: 
 
 EQUITY, n, a. 
 
 Cancellation, rescission, correction, etc., of instruments. 
 
 who have taken advantage of the negligence 
 or confidence of the ofiScers of such corpora- 
 tion in procuring such contract : Carthan v. 
 Lang, 69-384. 
 
 47. Equity has jurisdiction of an action for 
 the rescission of an agreement for a cause 
 existing at the time it was made : Paige v. 
 Lindsey, 69-593. 
 
 As to rescission of contracts for fraud, see 
 CONTKACTS. § 584. 
 
 48. An action to cancel certain deeds and 
 have them declared null and void by reason 
 of certain facts not appearing in the deeds 
 themselves, lield to have been properly 
 brought in equity : Oray v. Coan, 23-344, 
 
 4i). Equity will rescind a contract of con- 
 veyance after it has been executed, for t^ie 
 purpose of restoring the grantee to his former 
 rights, if it is made to appear that there were 
 outstanding equities at the time of the con- 
 veyance against which it is reasonably doubt- 
 ful whether the title can be maintained: 
 Anderson v. Buck, 66-490. 
 
 50. In an action on a note given for a por- 
 tion of the purchase price of land, defend- 
 ant, by a cross-petition in equity, set up 
 fraudulent representations, mistake, etc., as 
 to the amount of land, and asked cancella- 
 tion of the note in suit and another note, but 
 subs'equently and before trial defendant paid 
 the other note, which had passed into the 
 hands of an innocent purchaser ; held, that the 
 cross-petition was properly treated as an equi- 
 table action: Hosleton v, Dickinson, 51-344. 
 
 51. Kescission: Failure of title to a por- 
 tion of property conveyed will not be ground 
 for rescinding the contract, where the party 
 
 ■ has an adequate remedy at law for such fail- 
 ure of title. Courts will interfere to cancel 
 or rescind an executed contract founded in 
 mutual mistake only where it is made rea- 
 sonably to appear that the party seeking re- 
 lief will, unless such relief is granted, sustain 
 an injury for which he would have no ade- 
 quate remedy at law : Morse v. Beale, 68-463. 
 
 52. Setting aside: Under the evidence, 
 from which it appeared that a father gave a 
 deed of his property to his daughter, intend- 
 ing that she should support him during the 
 remainder of his life, and shp also intended 
 at the time to do so, but it was not intended 
 by grantor that the deed be absolute, Jield, 
 in an action by the father to set aside the 
 
 deed, that it should be set aside, or at the 
 defendant's election permitted to stand, 
 making the father's support a charge on the 
 land: Gruing v. Richards, 23-288. 
 
 53. Inadequacy of consideration, in a 
 particular case, held not sufficient to warrant 
 the setting aside of a conveyance : Audubon 
 County V. American Emigrant Co., 40-460. 
 
 54. Weakness of mind: Courts of equity 
 have long recognized and enforced the rule 
 that acts and contracts of persons who are of 
 weak understandings, and ai-e therefore hable 
 to imposition, will be held void, if the nature 
 of the act or contract justifies the conclusion 
 that the party has not exercised a deliberate 
 judgment, but that he has been imposed 
 upon, circumvented or overcome by cunning 
 or artifice or undue influence: Oakey v. 
 Ritchie, 69-60. 
 
 55. If the power to contract exists, mere 
 weakness of mind without fraud or undue 
 influence is not suflicient to warrant the set- 
 ting aside of a conveyance: Campbell v, 
 Campbell, 51-713. 
 
 5(i. Breach of contract or warranty; An 
 action to rescind a contract on the ground of 
 breach thereof cannot be maintained in 
 equity, there being an adequate remedy at 
 law by way of damages : Brainard v. Holsa- 
 pie, 4 G. Gr., 485. 
 
 57. Where a grantor conveys land in good 
 faith, warranting the title, the mere fact that 
 the title fails as to the particular property 
 wiU not warrant setting aside the convey- 
 ance in equity, unless there are elements of 
 fraud, accident or mistake in the transaction; 
 MoDunn v. Des Moines, 84^467. 
 
 58. Placing party in statu quo: Equity 
 will not decree the rescission of a contract at 
 the suit of one party thereto on the ground 
 that the other has failed to fulfill his part of 
 the engagement, if the party cannot be 
 placed in statu quo and injury would result 
 to him from the rescission : Stringer v. Keo- 
 kuk, ML P. & N. R. Co., 59-377. 
 
 59. Where the purchaser tooi possession of 
 the property and made improvements and 
 held possession for more than five years, re- 
 ceiving the rents and profits, and made no 
 offer to return the possession to the vendor 
 or place him in statu quo, held, that he could 
 not have a rescission of the contract: Mont- 
 gomery V. Gibbs, 40-653. 
 
EQUITY, n, a. 
 
 585 
 
 Cancellation, rescission, correction, etc., of instruments. 
 
 60. A contract will not be rescinded in 
 equity where complainant can not or does 
 not offer to put defendant in' the position 
 which he occupied before the contract was 
 made. If the consideration has been received 
 it should be restored within a reasonable 
 time: Rynear v. Neilin, 3 G. Gr., 310. 
 
 61. Where an action is brought in equity 
 to rescind a contract or set aside the convey- 
 ance of real property, the petition is demur- 
 rable unless it contains an offer to repay the 
 consideration received : Seymour v. Shea, 63- 
 708. 
 
 62. Where, however, the petition does not 
 show that any consideration was received 
 and does not contain any tender, the defend- 
 ant, if he wishes to rely upon the absence of 
 tender, must plead in his answer the fact of 
 consideration being paid, and, if he does not 
 do so, his objection to the petition on the 
 ground of want of tender wiU be deemed 
 waived: Ibid. 
 
 63. Where a reconveyance tendered by 
 plaintiff in an action to set aside a convey- 
 ance on the ground of mistake or fraud was 
 simply erroneous in form, held, that such 
 fact would not defeat the action, but that the 
 proper conveyance should be provided for in 
 the decree: Montgomery v. Shockey, 37-107. 
 
 64. Reformation, when proper: Though 
 a written contract may not embody the in- 
 tention of one of the parties thereto, it will 
 not be reformed in equity, unless there is a 
 showing of fraud,* accident, or mistake in 
 drafting it: Bitter v. Doerr, 25-131. 
 
 66. If mistake exists, not in the subject- 
 matter which prevents the minds of the par- 
 ties from meeting, but merely in the terms 
 of a writing by which the parties undertook 
 to express their valid oral agreement, the 
 writing, being conclusive in an action at law, 
 can in a court of equity only be reformed so 
 as to express the true agreement of the par- 
 ties ; but the determination of the existence 
 or non-existence of the contract where no 
 reformation or cancellation is asked may le 
 made in a court of law : Carey v. Gunnison, 
 65-703. 
 
 66. Where a written contract, by reason of 
 the mistake of the parties as to the legal im- 
 port of the terms used, fails to set forth the 
 agreement and understanding of the party, 
 it may be reformed in equity. Such a mis- 
 
 take is not one of law, but one arising from 
 failure of the parties to use words conveying 
 the meaning intended : Reed v. Root, 59-359. 
 
 67. Therefore, held, that where parties en- 
 tered into a lease with the intention and un- 
 derstanding that in case of the destruction of 
 the building by fire the liability of the tenant 
 for rents should cease, but the words used in 
 reducing the contract to writing did not, in 
 legal effect, expj-ess such meaning, held, that 
 in an action for I'ent accruing after the de- 
 sti'uction of the building by fire, the tenant 
 might, by way of equitable defense, ask to 
 have the writing reformed : Ibid. 
 
 68. Where an indorsement upon a note 
 stated that it was given to secure overdrafts of 
 a certain person, and it was claimed by the 
 holder of the note that it was intended to se- 
 cure not only existing, but future, over- 
 drafts, and the recitals of a mortgage given 
 to secure such note showed that this was the 
 intention of the parties, held, that there was 
 sufficient evidence on which to reform the 
 statement on the note as against both princi- 
 pal and sureties therein: Commercial Ex- 
 change Bank v. McLeod, 67-718. 
 
 6J). Courts of equity will not assist the 
 grantee in an imperfect conveyance, which is 
 not supported by either a valuable or a meri- 
 torious consideration, as against either the 
 grantor or his representatives: Else v. Ken- 
 nedy, 67-376. 
 
 70. Where the parties contracted for the 
 conveyance of certain lands with improve- 
 ments thereon, and the cohveyance by mis- 
 take did not contain the land upon which the 
 improvements were situated, lield, that the 
 grantee was entitled to the correction of 
 the instrument in equity, and that he might, 
 in the same action, have damages for the 
 mistake : Wright v. McCormick, 23-5-f5. 
 
 71. Where a conveyance was made subject 
 to a mortgage described therein, stated to be 
 for a certain amount, but in fact the amount 
 specified was made up of the amount of an- 
 other mortgage in addition to that described, 
 held, that in an action by the grantee to re- 
 cover from the grantor the amount paid to 
 satisfy the mortgage not described, defendant 
 in a cross-petition might set up the mistake 
 and have the deed corrected : Zack v. Krall, 
 64^88. 
 
 72. A quitclaim deed executed for a con- 
 
586 
 
 EQUITY, II, a. 
 
 Cancellation, rescission, correction, etc., of instruments. 
 
 sideration, without fraud, and intended to 
 convey an interest in the property, may he 
 corrected in equity, although there be no 
 covenants therein : Deford v. Mercer, 24-118. 
 
 73. Where, after a conveyance by husband 
 to wife, a grantee of the wife sought to have 
 the husband's deed corrected because the 
 name of the township in which the land was 
 situated was not stated, it was held, in the 
 absence of a showing of fraud or undue influ- 
 ence in a legal sense, that the fact that the 
 husband had been importuned to make the 
 deed and had made it without actual consid- 
 eration, and purposely left out the name of 
 the township, would not prevent plaintiff 
 from having such correction made: Stewart 
 V. Brand, 23-477. 
 
 74. Defective conveyance deemod con- 
 tract: When an instrument intended to op- 
 erate as a conveyance of lands is so executed 
 as not to pass the title, equity will, if the 
 consideration has been paid, treat it as a con- 
 tra' t for a deed, and the defective convey- 
 ance will bind the land in equity against the 
 grantor, his heirs, and subsequent purchasei-s 
 with notice : Doniphan v. Street, 17-317. 
 
 75. Insurance poliey: In a suit to recover 
 upon an insurance policy a court of equity 
 will reform the instrument to correct a mis- 
 statement therein resulting from misplaced 
 confidence on the one hand and false infor- 
 mation or misrepresentation on the other, so 
 as to make it conform to the intention of the 
 parties: Longhurst v. Star Ins. Co., 19-364. 
 
 76. Will: A court of equity has no juris- 
 diction to reform a will : Chambers v. Wat- 
 son, 56-676. 
 
 77. Keforination and specific perform- 
 ance may be had in the same action where 
 the contract to convey is erroneous by reason 
 of mistake : Ring v. AshivoHh, 3-453. 
 
 78. Effect of reformation: In a suit to re- 
 form a written contract on the gi-ound of 
 mistake, the court will not reform, it or im- 
 pair its validity in other particulars than that 
 as to which knowledge and mistake is alleged 
 to exist: Rump v. Schwartz, 56-611. 
 
 79. Where, subsequent to foreclosure and 
 sale under a naortgage, an action was brought 
 to correct the description of property in the 
 mortgage and sale, to which the party hold- 
 ing the right of redemption was a party, 
 held that, after such reformation was made, 
 
 the party was not entitled to any extension 
 of the time for redemption: MeKissick v. 
 Mill Owners' Mat. F. Ins. Co., 50-116. 
 
 80. Third parties not to be alTected: In 
 an action to correct a deed in which the wife 
 of grantor relinquished her dower, held, that 
 although the mistake was clearly made out 
 as against grantor, the deed could not be 
 thus reformed so as to cut off the wife's 
 dower right in the laud which grantor in- 
 tended to convey, in the absence of any 
 proof that such mistake and intention was 
 shared by the wife : Sieben v. Franks, 52- 
 643. 
 
 81. A conveyance to an innocent purchaser 
 cannot be set aside because of fraud practiced 
 upon the grantor by reason of negligence 
 in failing to read the instrument constituting 
 his title : Weaver t\ Carpenter, 42-348. 
 
 82. Courts of equity will correct mistakes 
 in conveyances, even as against subsequent 
 purchasers, if such purchasers have notice of 
 the fact of the prior conveyance and of the 
 mistake: Warburton v. Lauman, 2 G. Gr,, 
 430. 
 
 83. Where a land agent who effected a 
 loan and took a mortgage for the mortgagee 
 had knowledge in his business that a mort- 
 gage given by a prioj: grantee of the property 
 was probably intended to cover the property 
 in question, although other property was de- 
 scribed therein, held, that such prior mort- 
 gage might be reformed as against the last 
 mortgagee : Sowler v. Day, 58-252. 
 
 84. Where there is an intent and attempt 
 to execute a mortgage upon particular prop- 
 erty, and by mistake other property is de- 
 scribed, the mortgagee secures a lien on the 
 property attempted to be covered which 
 equity will recognize and enforce, and the ob- 
 ligation of the mortgagor to correct the mort- 
 gage is one which will bind his heirs, volun- 
 tary gi-antecs and piu-chasers with notice: 
 Welton V. Tizzard, 15-495. 
 
 85. Burden of proof: He who seeks to re- 
 form a written instrument on account of mis- 
 take has the burden of showing the fact of 
 mistake: George v. Hoicard, 56-646. 
 
 8t!. Where plaintiff seeks to have canceled 
 a recorded mortgage on the ground that the 
 mortgage and notes secured thereby, al- 
 though in the possession of the mortgagee, 
 were never delivered, he has the burden of 
 
EQUITY, n, b. 
 
 587 
 
 ri'aud or mistake warranting equitable relief. 
 
 showing by a preponderance of evidence that 
 they were not delivered: Kreck v. Pitzel- 
 berger, 64-108. 
 
 87. Sufficiency of evidence: A written 
 contract will be accepted as a full and cor- 
 rect expression of the contract of the parties 
 until the contrary is established beyond rea- 
 sonable controversy, and if the proofs are 
 doubtful, or if the mistake is not plainly 
 shown, equity will not interfere to reform it : 
 Tufts V. Lamed, 27-330. 
 
 88. While parol evidence is admissible for 
 the purpose of showing that a written agree- 
 ment, on account of fraud, accident or mis- 
 take, fails to show the whole or true contract, 
 and to enable the court to reform it, this 
 fact must be made entirely clear and be es- 
 tablished by the most satisfactory proof: 
 Oelpdke v. Blake, 15-387 ; Jacic v. Naber, 15- 
 450. 
 
 89. To authorize a court to reform an in- 
 strument on the ground of mistake, the 
 proof should clearly make out the mistake 
 and should strike all minds as being unques- 
 tionable and free from all reasonable doubt, 
 and relief will be denied if the evidence is 
 equivocal, or contradictory in its nature: 
 Hervefy v. Savery, 48-313 ; Clute v. Frasier, 
 58-268. 
 
 90. In an action to correct a deed for mis- 
 take sought to be established by parol, the 
 evidence should be clear and satisfactory: 
 McTucker v. Taggart, 29-478. 
 
 91. And the mistake must be made out by 
 a clear preponderance of evidence : Stray er 
 V. Stone, 47-388. 
 
 92. The evidence must be clear, satisfac- 
 tory and beyond a reasonable doubt, and it 
 must appear that the mistake was mutual : 
 Wachendorf V. Lancaster, 61-509. 
 
 93. In a particular case, held, that the evi- 
 dence was not sufficiently clear and conclu- 
 sive to entitle plaintiff to relief: Cummins' 
 V. Monteith, 61-541. 
 
 b. What constitutes such fraud or 
 mistaJce as to warrant eguitahle 
 relief. 
 
 94. Fraud: The term fraud as used in 
 equity properly includes all acts, omissions 
 and concealments which involve a breach 
 
 either of legal or equitable duty, trust, or 
 confidence .justly reposed, and are injurious 
 to another, or by which an undue and un- 
 conscientious advantage is taken of another : 
 De Louis v. Meek, 2 G. Gr., 55; Arnolfl v. 
 Grimes, 2 G. Gr., 77. 
 
 95. Mere refusal to perform a contract 
 which is not in writing when it should be so 
 evidenced and a denial of its existence will 
 not constitute such fraud as to warrant a 
 court of equity in granting relief : Burden v. 
 Sheridan, 36-125 ; McClain v. McClain, 57- 
 107. 
 
 90. Representations as to the validity of a 
 patent and the novelty of the invention, 
 held to be expressions of opinion, rather than 
 statements of fact, and also to have been 
 matters as to which the parties had equal 
 means of information, and, therefore, not suf- 
 ficient to require the setting aside of a con- 
 veyance made in consideration of the transfer 
 of such patent : Ro.wson v. Harger, 48-269. 
 
 Further as to what constitutes Feaud, see 
 that title. 
 
 97. Effect of fraud at law .ind in equity: 
 A written instrument may be defeated for 
 fraud at law as well as in equity, and an 
 action to recover money, where the right of 
 action is based on the fact that the instru- 
 ment is void for fraad, need not be trans- 
 ferred to the equity calendar : Doe v. Clark, 
 43-123. 
 
 98. So far as courts of common law can 
 exercise their jurisdiction in case of fraud, it 
 may be considered to be concurrent with 
 that of courts of equity : Arnold v. Grimes, 
 3 G. Gr., 77. 
 
 99. While at law fraud must be proven, in 
 equity it may be presumed : Ibid. 
 
 100. Willie fraud vitiates all contracts, yet 
 there are some frauds which are only cogni- 
 zable in a court of equity : Wliipple v. Cass, 
 8-126. 
 
 101. The fact that a legal title is based on 
 fraud cannot be rehed upon in an action at 
 law for the purpose of recovering against the 
 holder of the legal title. Such holder may 
 successfully plead his title against the equi- 
 table claim of another, attempted to be en- 
 forced in an ordinary action. To defeat a 
 legal title, it must be attacked in chancery, 
 and in that forum declared void : Walker v. 
 Kynett, 32-524. 
 
688 
 
 EQUITY, II, b. 
 
 Fraud or mistake warranting equitable relief. 
 
 102. False representations: Materially 
 false representations within the knowledge 
 of the person making them amount to fraud 
 in a conti'act, and entitle the other party to a 
 rescission in equity : Mitchell v, Moore, 24 - 
 394. 
 
 103. Equity will grant relief on the ground 
 of fraud, although the party representing the 
 material fact made the assertion complained 
 of, without knowing whether it was true or 
 not ; and even if by mistake and innocently a 
 pai'ty misrepresents a material fact on which 
 another is induced to act, it is as clearly a 
 ground for relief in equity as a wilfully false 
 assertion : Wilcox v. Iowa Wesley an Univer- 
 sity, 33-3G7 ; Day v. Lown, 51-364. 
 
 104. And in a particular case, held, that 
 the burden was upon the party making the 
 representation, to show that it was true or 
 that he had reason so to believe, in order to 
 rebut f I'audulent intent on his part : Day v. 
 Lown, 51-364. 
 
 105. A grantee may have relief in equity 
 on account of misrepresentations as to the 
 quantity of land conveyed, although such 
 misrepresentations were not fraudulent. The 
 relief will be granted on the ground of mut- 
 ual mistake : Sweezey v. Collins, 36-589. 
 
 108. False representations honestly made, 
 and thus giving rise to a cause of mutual 
 mistake, may be a ground for setting a con- 
 veyance aside to the same extent that fraud- 
 ulent representations would be : Montgomery 
 V. Shockey, _^7-107. 
 
 107. The rule which grants relief in cases 
 of false representations only when they are 
 known to be false by the party making them 
 is applicable alone in actions at law and has 
 no place in cases cognizable in equity. 
 Whether a party representing a material fact 
 knew it to be false, or made the assertion 
 without knowing whether it was true or 
 false, is wholly immaterial, and even if the 
 party innocently misrepresents a material 
 fact, it is equally conclusive, for it operates 
 as a surprise and imposition on the other 
 party : Curry v. Supervisors, 61-71. 
 
 108. A misrepresentation, in order to en- 
 title a party to relief from a contract on the 
 ground of fraud, must be material, and must 
 be in something in regard to which a known 
 trust is placed upon the party making it : 
 Stafford v. Mans, 3S-133. 
 
 109. In a particular case, held, that certain 
 misrepresentations to a wife with reference 
 to her interest in the lands of her husband, 
 made by mutual friends chosen to effect a 
 separation by agreement, would not enable 
 her to avoid her deed, it appearing that there 
 was no intention to deceive and that she was 
 not induced thereby to execute the deed: 
 Robertson v. Robertson, 25-350. 
 
 110. Certain representations made by a 
 party, who afterwards became the purchaser 
 of land, as to the location, etc., held not to 
 be material or fraudulent and therefore not 
 a ground for i-escission in equity : Collar v. 
 Ford, 45-331. 
 
 111. Even a great discrepancy between the 
 value of property and the price paid therefor 
 will not alone show fraud, although it is a 
 circumstance which may be considered with 
 others on that question : Ibid. 
 
 112. Statements concerning the value of 
 property or its condition or adaptation to 
 particular uses which are only matters of 
 opinion cannot be relied on by a purchaser 
 and will not constitute fraudulent representa- 
 tions: Vincent V. Berry, 46-571. 
 
 113. Where plaintiffs exchanged a stock of 
 goods for certain mortgage securities held 
 by defendant, which they were requested to 
 investigate and which they did examine to 
 some extent and had full opportunity to in- 
 vestigate, held, that statements of defendant 
 as to the value of such securities and the re- 
 sponsibility of the parties and the title to the 
 property, such title being of record, even 
 though false, would not entitle plaintiffs to 
 rescission in equity : Ibid. 
 
 114. To avoid a conveyance on account of 
 false representations, the representations re- 
 lied on must relate to the subject-matter and 
 not to matters of mere inducement. There- 
 fore, held, that false representations as to the 
 condition of the grantee, by which, from mo- 
 tives of charity, the holder of a tax deed was 
 induced to convey the land to him, which he 
 was under no obligation to do, would not be 
 suflBcient to avoid the conveyance: Nod «. 
 Norton, 50-687. 
 
 115. Where vendee required vendor to put 
 his statements in regard to the land in writ- 
 ing, held, that other statements not required 
 to be put in writing could not have been 
 deemed material, and could not therefore 
 
EQUITY, II, b. 
 
 589 
 
 Fraud or mistake warranting equitable relief. 
 
 be shown by parol evidence: Port&f v. 
 McElhiney, 56-93. 
 
 110. Acts of a railroad company in run- 
 ning so-called scare-lines for the purpose of 
 inducing a county to make grants of aid to 
 secure a particular line, held, not to amount 
 to fraudulent representations: Mills County 
 V. Burlington & M. R. E. Co., 47-06. 
 
 117. Evidence in a particular case held 
 sufficient to show fraudulent and material 
 misrepresentations as to real property sold: 
 Parks V. Eurbank, 58-707. 
 
 118. Parol evidence is admissible to show 
 that a deed was procured by fraud and undue 
 influence: Day v. Lovm, 51-364. 
 
 119. Where a grantor made fraudulent 
 representations as to his title, and by decep- 
 tion induced grantee to accept the convey- 
 ance of the grantor's title and interest instead 
 of an ordinary conveyance by warranty 
 deed, whereby gi-antee was unable to hold 
 the property as against parties claiming un- 
 der a recorded instrument, held, that gi'antee 
 was entitled to relief in equity : Anderson v. 
 Buck, 66-490. 
 
 120. Where it appears that grantee had 
 knowledge of all the facts relating to the 
 value of the property, and the grantor had 
 not, and that the grantee obtained a convey- 
 ance by false representations for a grossly in- 
 adequate consideration, where he was under 
 peculiar obligations to state truly what he 
 did state in the transaction, held, that the 
 conveyance should be set aside at the suit of 
 the grantor: Smith v. Dell, 30-594. 
 
 Further as to effect of false representations 
 in the sale of land, see Vendors, II. 
 
 As to fraudulent representations, see, also, 
 Fraud, §g 3-13. 
 
 121. Fraud of agent: Where an agent, 
 acting under power of attorney, conveys the 
 property of his principal without considera- 
 tion and with the purpose of acquiring title 
 in himself, such conveyance wOl be held 
 fraudulent in a court of equity. If the con- 
 veyance by the agent appears to have been 
 without consideration and for the sole pur- 
 pose of defeating the title of his principal, 
 and to advance his own interest, the transac- 
 tion carries fraud upon the face of it, and a 
 court of equity will, without further inquiry as 
 to the equity of the person rhaking such sale, 
 set it aside : MacQregor v. Gardner, 14-836. 
 
 122. Confidential relations: While aparty 
 cannot generally have relief in equity against 
 a conveyance procured by fraudulent repre- 
 sentations as to its character, where he has 
 clearly executed it without reading, this rule 
 does not apply where the confidential rela- 
 tion of pai-ent and child exists: Rider v. 
 Kelso, 58-367. 
 
 123. Where a father on the eve of his r&- 
 marriage conveyed real property to his chil- 
 dren without the knowledge of his intended 
 wife, held, that, it not appearing that he had 
 made any representations as to the extent of 
 his property or was otherwise guilty of fraud, 
 the conveyance could not be set aside at the 
 suit of the wife as fraudulent : Hamilton v. 
 Sm.ith, 57-15. 
 
 124. Contracts made between persons sus- 
 taining to each other the relation of trust and 
 confidence commonly existing between an 
 aged and infiim mother and a daughter who 
 is relied upon by her as a helper and sup- 
 porter, where it appears that the stronger 
 and controlling mind has obtained a convey- 
 ance of property or an obligation to pay 
 money, are jealously watched and guarded 
 by courts of equity, and set aside unless the 
 beneficiary shows the bona fides of the trans- 
 action : Sjpargur v. Hall, 63-493. 
 
 12.5. Evidence held not sufficient to show 
 fraud practiced by the husband upon the 
 wife in inducing her to release her dower in 
 land conveyed by him by way of advance- 
 ment to his daughter by a former marriage : 
 Hatcher v. Day, 53-671. 
 
 126. In a particular case, held, that there 
 was no evidence that a gift from parent to 
 children was made under undue influence or 
 was procured by reason of confidential re- 
 lations, and it was therefore upheld : Samson 
 V. Samson, 67-353. 
 
 See, also, Fraud, g§ 14, 15. 
 
 127. Who may have relief from fraud; 
 Fraud can only be avoided by one who had a 
 prior interest in the estate, and not by one 
 who, subsequently to the fraud, purchases it: 
 Brace v. Reid, 3 G. Gr., 432. 
 
 128. One who has been induced to pur- 
 chase by fraudulent representations may 
 maintain an action to rescind the sale and 
 recover the purchase price, although the con- 
 veyance to him is by quitclaim : Ballou v, 
 Lucas, 59-33. 
 
590 
 
 EQUITY, n, b. 
 
 B^aud or mistake warranting equitable relief. 
 
 129. Effect of mistake, cognizable at 
 law: A material mutual mistake by the 
 parties with respect to the subject-matter of 
 a contract prevents the minds of the parties 
 from meeting, so that in contemplation of 
 law there is n o contra ct. If action be brought 
 thereon, defendant may deny its existence, 
 and in support of the denial allege and prove 
 the mistake. Such' defense may be made in 
 an action at law, and is not equitable in its 
 nature. But if defendant desires the cancel- 
 lation of the contract on account of such mis- 
 take, or that it shall be reformed in order to 
 express the true agreement of the parties, he 
 may ask relief by cross-action, and such relief 
 would be equitable in its nature: Carey v. 
 Chinnison, 65-702. 
 
 130. An action at law for money paid by 
 mutual mistake, or by the mistake of one 
 party alone, and fraudulently received and 
 retained by the other, was always maintain- 
 able: Higginsv. Mendenhall, 51-135. 
 
 131. Where, by mistake in computing the 
 amount necessary to redeem from an execu- 
 tion sale, the amount paid for that purpose 
 within the year allowed for redemption was 
 not sufficient by a small amount for that pur- 
 pose by reason of mistake of the clerk in 
 making computation, held, that the person 
 seeking to redeem was entitled to equitable 
 relief after the exjjiration of the yeai- for re- 
 demption as against the sherifiE's deed issued 
 notwithstanding such attempted redemption : 
 Wakefield v. Rotherham, 67-444. 
 
 132. Materiality: In the absence of fraud, 
 a mistake of fact which does not materially 
 affect the rights of the parties will not be 
 sufficient to require the setting aside of a 
 contract deliberately entered into : Chapman 
 V. Coats, 26-288. 
 
 133. Materiality is an important element 
 entering into such mistakes as will be cor- 
 rected in a court of equity: Burlington v. 
 Gilbert, 31-356. 
 
 134. When presumed: Where mistake is 
 shown, and the conduct of the party is such 
 as would be against all human experience as 
 to the action of men in thetr own affairs, if 
 he had known of the mistake, it will be pre- 
 sumed that he would not have so acted if he 
 had not been ignorant of such material fact : 
 Bruse v. Nelson, 85-157. 
 
 135. Tarol evidence ought not to be ad- 
 
 mitted to vai-y or contradict the terms of the 
 written agreement unless it be made to ap- 
 pear that the parties, at the time of consum- 
 mating the agreement, actually intended and 
 understood that such terms and stipulations 
 should be incorporated, and omitted the 
 same by accident, mistake or fraud : Gelpcke 
 V. Blake, 15-387 : Jack v. Naber, 15-450. 
 
 Further as to parol evidence to vary 
 writing, see Evidencb, II, 4. 
 
 13G. Before a court can disturb the pro- 
 visions of a written agreement for the pur- 
 pose of reforming it there should be clear 
 and convincing evidence that the instrument 
 does not set forth the true intent of the 
 parties, and that the failure to make it ex- 
 press such intent arose from oversight or 
 mistake in drafting it. But where a mining 
 lease was entei-ed into under the mistalcen, 
 though honest, belief that there was coal 
 in the premises described, held, that equity 
 would grant reUef: Fritzler v. Eobinson, 
 70 . 
 
 137. Negligence: Signing a written in- 
 strument without reading it constitutes such 
 gross negligence as to be an insuperable ob- 
 jection to granting any relief therefrom in 
 equity on the ground that it does not corre- 
 spond with the intention of the party execut- 
 ing it : Glenn v. Statler, 42-107. 
 
 138. Where the grantor did not under- 
 stand the stipulations contained in a convey- 
 ance by reason of his inability to understand 
 the English language, held, that although 
 before signing the instrument he had had it 
 I'ead over and explained to him by an inter- 
 preter, he might still have the mistake cor- 
 rected in equity : Zack v. Krall, 64- 88. 
 
 And see Contracts, §§ 115-119. 
 
 139. Although equity denies relief on the 
 ground of mistake coupled with negligence, 
 this rule applies only virhen it is the duty of 
 the party to make inquiry, and he chooses to 
 omit the inquiry which would have enabled 
 him to correct the mistake or obviate its evil 
 consequences : Snyder v. Ives, 43-157. 
 
 140. Equal means of information: Where 
 the means of correct information are alike 
 open to both parties and there is no fraud on 
 the part of the one party, the other party is 
 not entitled to be relieved from a mistake 
 which ordinary vigilance would have pre- 
 vented: Burlington v. Gilbert, 31-356. 
 
EQUITY, II, b. 
 
 ,391 
 
 Fraud or mistake warranting equitable relief. 
 
 141. Where plaintiff sought the rescission 
 of a contract for the purchase of a patent- 
 right on the ground of mutual mistake as to 
 the novelty of the invention, and the conse- 
 quent invalidity of the patent, held, that 
 both parties having acted in good faith, they 
 must be considered as possessed of equal 
 means of information, and therefore there 
 was no ground for rescission: Rawson v. 
 Harger, 48-369. 
 
 142. Estoppel: Where an administrator, 
 under leave to sell real property, couveyed 
 certain pi-operty to a purcljaser, held, that 
 the representatives of such administrator 
 could not set up as against such deed the fact 
 that the equitable title in a portion of the 
 land conveyed was in the administrator in 
 his own right, and that the deed covering 
 that portion was executed by mistake. Also, 
 held, that the mere knowledge of the grantee 
 that the administrator claimed some personal 
 interest in the property would not defeat his 
 rights under the conveyance: Donatio v. 
 Smith, 50-218. 
 
 143. Description of land: Where by mis- 
 take in the description of land a conveyance 
 covers more than was intended by the pai'ties, 
 it may be corrected in an action in equity : 
 Hutsonv. Furnas, 31-154. 
 
 144. In a particular case, held, that a con- 
 veyance should be set aside on the ground of 
 mistake as to the property conveyed : Larsen 
 V.Burke, 39-703. 
 
 145. If a person contracts for a piece of 
 property and unknowingly accepts different 
 property, this must be deemed a mistake as 
 to which equity will grant relief. Therefore, 
 held, that where a naortgage was executed 
 under a belief by both parties that it covered 
 property not described therein, such mort- 
 gage would be reformed in equity : Sowler v. 
 Day, 58-253. 
 
 140. Where the owner of two lots, believ- 
 ing each to be four rods in width and that 
 there was an alley between them, which had 
 been vacated, sold the first to defendant, 
 measuring the width and marking the sup- 
 posed boundary line, and conveyed the same, 
 describing it by the number of the lot 
 merely, and afterwards, intending to convey 
 the balance of the property to plaintiff, 
 pointed out to him, in the presence of de- 
 fendant, the boundary lines between them. 
 
 and in the conveyance described the property 
 also by the number of the lot, and included 
 the supposed vacated alley, but it afterwards 
 appeared that there was no vacated alley and 
 that the lot described in the conveyance to 
 defendant was five rods in width instead of 
 four, held, that plaintiff was entitled to have 
 his title to the portion intended to be con- 
 veyed to him, and pointed out at the time of 
 the sale, quieted as against defendant: Bol- 
 ton V. Eggleston, 61-163. 
 
 147. Evidence in a particular case held 
 sufficient to show a mistake in the descrip- 
 tion of property in a title bond : Eggspieller 
 V. Nocldes, 58-649. 
 
 148. Under the facts in a particular case, 
 held, that a mistake in the deed by which 
 plaintiff held the property in controversy 
 was sufficiently shown and he was entitled 
 to a decree to have his title quieted : Killian 
 V. Greene, 65-401. 
 
 149. Evidence in a particular case held 
 sufficient to show misappreliension or mis- 
 take of the parties to a conti-act as to the 
 character and quality of land involved in 
 the transaction, such as to warrant a rescis- 
 sion thereof on the part of vendee and the 
 annulhng of a deed of conveyance by which 
 he transferred other property therefor : May 
 V. Snyder, 23-535. 
 
 150. Miatalie in quantity; more or less: 
 Where a deed mentions a certain number of 
 acres, "more or less," if the difference be- 
 tween the i-eal and supposed amount be so 
 great as to imply a mutual mistake, equity 
 will grant relief, but not in case of a slight 
 variation: Hosleton v. Dickinson, 51-344. 
 
 151. Mistake of law: Equity will not re- 
 lieve against a mistake of law: Pierson v. 
 'Armstrong, 1-383; Casady v. Woodbury 
 County, 13-113 ; Corning v. Orohe, 65-328. 
 
 152. A contract is to be understood ac- 
 cording to the meaning of the language 
 employed therein and not according to the 
 views of its meaning entertained by the 
 parties drawing it, and a court will not 
 change the plain language of the contract in 
 order to conform it to a mistaken notion of 
 its meaning entertained by the persons exe- 
 cuting it, in the absence of proof of fraud, 
 accident or mistake: Wadsworth v. Smith, 
 43-339. 
 
 153. Mistake as to the legal e£fect of a 
 
592 
 
 EQUITY, II, b. 
 
 Fraud or mistake warranting equitable relief. 
 
 transaction is not ground of defense as 
 against the liability legally incurred therein. 
 Such a mistake on the part of one party in 
 connection with concealment thereof on the 
 part of the other party does not constitute 
 fraud : Hale v. Walker, 31-344. 
 
 15-1. Where the covenants in a deed ex- 
 press the original intentions of the parties, 
 but the deed is executed under a mistake of 
 law on part of the grantor as to the effect of 
 such covenants, he is not entitled to relief 
 therefrom: Gerald v. Elley, 45-333. 
 
 155. The fact that parties enter into a writ- 
 ten agreement under the belief that it is 
 modified or aflEected by a prior or contempo- 
 raneous oral agreement is not a mistake 
 against which equity will afford relief : Bald- 
 win V. State Ins. Co., 60-497. 
 
 156. Where a prior parol contract is re- 
 duced to writing by a draftsman employed 
 for that purpose, but, by mistake of law on 
 his part as to the meaning of terms, such 
 written contract does not properly set forth 
 the terms of the prior oral agreement, the 
 contract may in an equitable action be cor- 
 rected to correspond with the original agree- 
 ment: Nowlin V. Pyne, 47-393; Courtright v. 
 CourtrigUt, 63-336. 
 
 157. Therefore, where upon exchange of 
 lands between married women in which their 
 husbands joined to relinquish dower, the 
 names of both wife and husband were in- 
 serted in each case as grantees, the scrivener 
 supposing that the insertion of the name of 
 the wife first would vest the fee-simple title 
 in her, held, that the conveyance might be 
 so reformed in equity so as to show the title 
 to be in the wife alone and not in the wife 
 and husband as tenants in common : Court- 
 right V. Courtright, 63-356. 
 
 158. Where a written instrument fails to 
 present the agreement of the parties, equity 
 will reform the writing so as to cause it to ex- 
 p]-ess their intention, and this relief will be 
 granted without regard to the cause of the 
 failure of tY^e instrument to express the true 
 contract, whether it be from mistake of fact 
 or mistake of law. Mistakes of law against 
 which equity will not relieve are those which 
 pertain to the subject-matter of the contract 
 and were inducements thereto or conditions 
 therefor. The rule lias no application to mis- 
 takes in the language of the contract or in 
 
 the choice of form of the instrument, by rea- 
 son of which it has an effect different from 
 the intention of the parties : Stafford v. Fet- 
 ters, 55-484. 
 
 159. Therefore, held, that the payee of a 
 note signing the same by written indorse- 
 ment might have such indorsement reformed 
 to correspond with the agreement between 
 the parties that the transfer was to be made 
 without liability on the part of such indorser ; 
 Ibid. 
 
 160. Where a contract, by reason of mis- 
 take of the parties as to the legal import of 
 the terms used, fails to set forth their agree- 
 ment and understanding, it may be reformed 
 in equity. Such a mistake is not one of law, 
 the legal import of the contract entered into 
 in fact being understood, but a mistake aris- 
 ing from failure of the parties to use worda 
 having the meaning intended : Eeed v. Boot, 
 59-359. 
 
 161. Therefore, held, that where the par- 
 ties entered into a lease with the intention 
 and understanding that, in case of the de- 
 struction of the building by fire, the UabUity 
 of the tenant for rent should cease, but the 
 words used in reducing the contract to writ- 
 ing did not in legal effect express such mean- 
 ing, held, that in an action for rent accruing 
 after the destruction of such building by fire, 
 the tenant might, by way of equitable relief, 
 have the writing reformed : Itiid. 
 
 1C3. Where a policy of insurance described 
 the interest of the insured as that of a mort- 
 gagee, and he was induced to execute the 
 policy under the representation that it suffi- 
 ciently described his interest, which was in 
 fact a mechanic's lien, held, that in an action 
 in equity evidence of such fact was admis- 
 sible and would entitle plaintiff to recover 
 for loss of the property: Stout v. City F. 
 Ins. Co., 12-371. 
 
 163. While mistakes in matters of law are 
 not in general grounds of equitable relief, 
 yet if, through misapprehension or mistake of 
 law, a party parts with a private right of 
 property or assumes obligations upon grounds 
 which he would not have acted upon but for 
 such misapprehension, equity may gi-ant re- 
 lief : Baker v. Massey, 50-399. 
 
 161. Where a guai-dian's deed conveyed 
 the interest of minor heirs in certain prop- 
 erty which was subject to dower, and it ap- 
 
EQUITY, II, c. 
 
 593 
 
 Eelief against judgments. 
 
 peared that all the parties iindei-stood that 
 the dower was one-third of the property 
 ia fee, whereas in fact such interest, as 
 the law then stood, was one-thu-d for life 
 only, held, that in equity such deed would 
 operate as a conveyance of the interest of the 
 minor heirs in two-thirds of the property 
 only: Ibid. 
 
 1G5. In such case the mistake is to be 
 deemed only of fact : Ibid. 
 
 ItiG. Mistiike in the verdict in an action 
 at law should be corrected on motion where 
 the mistake is known to the party. It can- 
 not be made a ground for relief in equity : 
 McFaul V. Woodbury County. 57-99. 
 
 167. Mistake in judicial sale: Where a 
 decree was furnished by plaintiff's attorney 
 in a foreclosure case, and by mistake of the 
 clerk in entering and issuing execution 
 thereon, a portion of the property involved 
 in the action was not described in the decree 
 nor offered for sale under the execution, and 
 plaintiff's attorney, acting under the belief 
 that the entire property was being sold, bid 
 it in at the sale for the plaintiff, held, that 
 the circumstances were such as to entitle 
 plaintiff to relief in equity from the sale: 
 Sityder v. Ives, 42-157. 
 
 c. Relief against judgments. 
 
 As to injunction to restrain enforcement of 
 judgment, see Injunction, §g 54-67. 
 
 As to setting aside judgments, see Judg- 
 ments, II, a. 
 
 l(js. Decree of divorce: A decree in equity 
 cannot be reversed except by an appellate 
 court or on an application by bill to the court 
 rendering the same, impeaching it for fraud 
 or otherwise. Therefore, held, that a pre- 
 vious decree of divorce awarding the custody 
 of children to one of the parties could not be 
 interfered with except by a showing of fraud 
 or incapacity of the party to whom the cus- 
 tody of the child was awarded to perform 
 the duties of guardian, such incapacity hap- 
 pening since the decree : Deeds v. Deeds, 1 G. 
 Gr., 394. 
 
 16i). Decree procured by fraud: When a 
 decree has been made with consent, and that 
 consent has been fraudulently obtained, the 
 party may have relief by an original bill. If, 
 upon the bill of one of the parties to a decree, 
 Vol. I — 38 
 
 such decree is set aside for fraud in obtaining 
 it, it will be regarded as set aside for all the 
 parties to the original decree : De Louis v. 
 Meek, 2 G. Gr., 55. 
 
 170. A party cannot rely upon a decree 
 which has been procured by his fraud. I£ 
 the time for appeal has passed and the other 
 party is without other remedy, chancery will 
 afford relief : Young v. Tucker, 39-596. 
 
 171. Fraud of attorney: A judgment can- 
 not be vacated for fraudulent acts of the 
 attorney when the opposite party has not 
 been deceived or misled or put off his guard 
 by such acts: Humphrey v. Darlington, 
 15-207. 
 
 172. The act of the attorney of a party in 
 representing that the case would not be tried 
 at the pending term of court, by which the 
 other party was induced to be absent, held 
 sufficient to invalidate a judgment at that 
 term: De Louis v. Meek, 3 G. Gr., 55. 
 
 173. Fraudulent judgments: Notonlythe 
 parties directly interested, but other parties 
 who are indirectly affected, may be relieved 
 from the fraudulent acts and misconduct of 
 a justice of the peace in rendering a judg- 
 ment: Austin V. Carpenter, 2 G. Gr., 131. 
 
 1 74. The decision of a judicial officer may 
 be attacked for fraud in an action for relief 
 on that ground: Bixby v. Adams County, 
 49-507. 
 
 175. What constitutes sufficient fraud to 
 justify tlie setting aside of a judgment, dis- 
 cussed in a particular case : Powell v. Spauld- 
 ing, 8G. Gr.,448. 
 
 176. A defendant who has no notice of the 
 action and is represented by an unauthorized 
 attorney is entitled to relief against the judg- 
 ment by a direct action in equity to set 
 it aside, but such action must be promptly 
 brought after defendant knows of the judg- 
 ment : Bryant v. Williams, 31-329. 
 
 177. To entitle a party to equitable relief 
 against a judgment at law, it must appear 
 that he failed in obtaining redress in his suit 
 at law by the fraud of the opposite party, or 
 inevitable accident or mistake, without any 
 fault either on his own pait or that of his 
 counsel : Bellows v. Tod, 53-359. 
 
 178. Where a defendant has been duly 
 served with personal notice and nothing has 
 occurred to prevent him from defending, he 
 cannot be relieved from the judgment by a 
 
594 
 
 EQUITY, II, c. 
 
 Relief against judgments. 
 
 court of equity, unless plaintiff was guilty of 
 a fraudulent concealment of a material fact 
 of which defendant was excusably ignorant, 
 or unless the judgment was obtained by 
 some fraudulent practice in the conduct of 
 the case. The mere fact that the judgment 
 plaintiff had knowledge that the claim was 
 invalid would not be ground for such relief : 
 Merrill v. Bowe, 67-636. 
 
 179. So a third person who is under obli- 
 gation to indemnify defendant against such 
 judgment cannot have relief against the 
 judgment upon a mere averment that the 
 judgment plaintiff had knowledge of the in- 
 validity of his claim, such third person hav- 
 ing had notice of the action : Ibid. 
 
 180. Setting aside: The statutory provision 
 (Code, § 8523) that judgments in ordinary 
 proceedings shall not be annulled or modified 
 in an action by equitable proceedings except 
 for a defense afterward arising or discovered, 
 does not prevent the issuance of an injunc- 
 tion against the collection of a judgment 
 which is being enforced contrary to the agree- 
 ment of parties : Baker v. Redd, 44-179. 
 
 181. Matters which might have been set 
 up as a ground for new trial cannot be inter- 
 posed in equity as a ground for setting aside 
 the judgment : Hintrager v. Sumbargo, 54- 
 604. 
 
 182. Judgment in garnishment proceed- 
 ings, although rendered for an amount in 
 excess of garnishee's liability to the judgment 
 debtor, cannot be modified in an action in 
 equity : Burlington & M. R. R. Co. v. Hall, 
 37-620. 
 
 183. "Where an action was, without the 
 knowledge of one of the parties, consolidated 
 with another action between the same parties 
 and transferred to another court, and al- 
 lowed to remain there for three years with- 
 out any action being taken, and then a decree 
 was procured against the party, who had no 
 knowledge of such transfer, held, that on a 
 petition in equity to set aside such decree, 
 he was properly granted relief: Rivers v. 
 Olmsted, 66-186. 
 
 184. Where judgment was obtained by de- 
 fault on the representation that the plaintiff 
 therein did not wish to recover of the de- 
 fendant but desired the judgment to more 
 readily recover from another party, held, 
 that a subsequent effort to enforce such judg- 
 
 ment in violation of the agreement could be 
 enjoined in equity, notwithstanding the stat- 
 utory provision above referred to : Baker v. 
 Redd, 44-179. 
 
 185. Where by an agreement for the settle- 
 ment of a suit defendant was to pay the 
 costs, no definite time therefor being speci- 
 fied, but when the next term of court ar- 
 rived, the costs not yet being paid, plaintiff 
 took judgment, held, that there was not suffi- 
 cient ground for setting the judgment aside 
 in an action in equity for that purpose : Bige- 
 low V. Church, 48-175. 
 
 186. A party is not entitled to have a de- 
 cree and sale set aside if the effect of so 
 doing would be grossly unjust and inequi- 
 table : Strong v. Bur dick, 53-630. 
 
 187. Correction of mistake: A mistake 
 of plaintiff's attorney in calculating the 
 amount due on a note for which judgment 
 is recovered, if occurring without the want 
 of ordinary care and diligence, may be 
 ground for correcting the judgment in 
 equity : Barthell v. Roderick, 34-517. 
 
 188. Relief in equity by way of reforma- 
 tion of judgment to correct a mistake will 
 not be granted where no prejudice has re- 
 sulted or can result to the party complaining: 
 Crenshaw v. Wickersham, 15-154. 
 
 189. What snfiicieut showing; burden 
 of proof: In order to justify a court of equity 
 in interfering with a judgment at law, the 
 evidence should make it appear clearly and 
 unequivocally that such judgment was 
 wrongfully and fraudulently obtained. The 
 burden of proof is with the party attacking 
 the judgment, and before he can be entitled 
 to relief he must fuUy establish his allega- 
 tions : Johnson v. Lyon, 14-431. 
 
 190. Objection not raised at proper time: 
 A party cannot in equity have a judgment 
 canceled or enjoine^ because of failure to 
 afSx a revenue stamp to the original notice 
 in the action, when with fuU knowledge of 
 the defect he appeared to the action and failed 
 to avail himself of it, was not taken by sur- 
 prise, had full time to prepare liis defense 
 and subsequently stayed the judgment: 
 Wilsey v. Maynard, 21-107. 
 
 191. Action to set aside a judgment can- 
 not be maintained for a cause which might 
 have been set up as a defense in the original 
 action: Ebersole v. Lattimer, 65-164. 
 
EQUITY, II, c. 
 
 595 
 
 Relief against judgments. 
 
 192. Where it appeared that a party had 
 dismissed his petition for new trial filed 
 in proper time under the statute, and no good 
 cause for his not obtaining relief in that 
 method appeared, held, that he could not 
 afterward have the judgment set aside in 
 equity : Dalhoff v. Keenan, 66-679. 
 
 193. Equity will grant relief from a judg- 
 ment after the expiration of the period of 
 one year allowed by statute for filing a peti- 
 tion to set it aside has expired, only when 
 proper grounds are shown; Bond v. Epley, 
 48-600. 
 
 And see Judgments, II, a. 
 
 194. To entitle a party to relief against a 
 judgment af law it must appear that it is 
 against conscience to execute the judgment, 
 and that the party applying for relief has 
 been guilty of no fault or negligence. Such 
 relief will not be granted against a judgment 
 for error therein which might have been cor- 
 rected upon appeal : Burlington & M. R. R. 
 Co. V. Hall, 37-620. 
 
 195. Defense must be shown: "Where it 
 was sought to defeat the enforcement of a 
 judgment on the ground that it was rendered 
 in pursuance of a compromise without au- 
 thority, held, that it must be alleged that 
 there was no valid and subsisting indebted- 
 ness: Crawford V. White, 17-560. 
 
 196. A judgment will not be set aside and 
 proceedings thereon enjoined in equity if the 
 owner of the judgment has a valid claim to 
 which there is no defense : Oerrish v. Hunt, 
 66-683. 
 
 197. Tender: A court of equity will not 
 set aside a judgment on the ground that it is 
 void for want of jurisdiction, where it ap- 
 pears that the indebtedness sued on was a 
 valid one and no offer is made to pay the 
 amount justly due : Parsons v. Nutting, 45- 
 404. 
 
 198. Before bringing suit to set aside a 
 judgment obtained without notice and by un- 
 authorized appearance, the better practice is 
 for the defendant to tender any amount justly 
 due. But, without the tender, when there 
 has been delay in bringing such action, and 
 some sum appears due, the court will retain 
 and continue the lien of the original judg- 
 ment for the payment of such judgment as 
 may ultimately be rendered in the case: 
 Bryant v. Williams, 31-339. 
 
 199. Void judgment: If the judgment is 
 alleged to be absolutely void it is not neces- 
 sary to allege that plaintiff has a good defense 
 to the cause of action on which the judgment 
 purports to be based: Qerrish v. Hunt, 66- 
 682 ; Arnold v. Hawley, 67-313. 
 
 200. A void judgment is not prima facie 
 evidence of indebtedness : Arnold v. Hawley, 
 67-31.3. 
 
 Further as to setting aside judgments, see 
 Judgments, II, a. 
 
 201. Bill of review: The lower courts of 
 this state have no power to entertain a bill of 
 review for errors apparent upon the face of a 
 decree affirmed or rendered in the supreme 
 court: McGregor V. Gardner, 16-538. 
 
 202. A party cannot, in a bill of review, 
 set up separate, distinct and unrelated equities 
 in his behalf against a co-defendant, for the 
 purpose of securing relief from the decree as 
 against himself: Barnes v. Anderson, 19-70. 
 
 203. New trial: In general, where it is 
 proper for a court of law to grant a new 
 trial, if the application is brought while the 
 court has power to do so, it is equally proper 
 for a court of equity to grant a new trial if 
 the application be made on grounds arising 
 after the court of law has ceased to have such 
 power : Hoskins v. Hattenhack, 14-314. 
 
 204. So held where it appeared that there 
 was material evidence in behalf of the party 
 asking a new trial, which could not have been 
 procured by him in time for the trial : Tbid. 
 
 205. A court of equity will not interfere by 
 injunction to restrain the enforcement of a 
 judgment on the ground of newly-discovered 
 evidence xinless it is set forth so that the 
 court may judge of its materality : Miller v. 
 3IcGfuire, Mot., 150; Blanchard v. Ware, 43- 
 530. 
 
 206. The plaintiff in an application to a 
 court of equity to obtain a new trial after a 
 judgment at law must, at least, make out 
 such a case as would have entitled him, for 
 the causes relied on, to a new trial in the 
 main action : Dixon v. Graham, 16-310. 
 
 207. Chancery will direct new trials in an 
 action at law in cases where such trial would 
 have been ordered by the court wherein the 
 judgment was rendered, if timely application 
 had been made, provided proper reasons are 
 shown why such application was not made or 
 the grounds upon which the interference of 
 
596 
 
 EQUITY, II, d. 
 
 Marshaling assets. 
 
 chancery is claimed arose after the courts of 
 law were deprived of power to grant such re- 
 lief : Bowen v. Troy Portable Mill Co., 31-460; 
 District T'p V. White, 42-608. 
 
 208. A new trial will not be granted in 
 equity for causes which might have been 
 ui'ged as a ground for new trial at law : Hin- 
 trager v. Sumbargo, 54-604. 
 
 And further, see New Trials. 
 
 d. Marshaling assets. 
 
 809. When reqnired: Where one party 
 has a lien upon two funds as security for his 
 debt, and another has a lien upon but one of 
 such funds, the former should be required to 
 resort first to the fund upon which the latter 
 has no lien : Miller v. Clarke, 37-323 ; Smith v. 
 Grimes, 43-356. 
 
 210. A person who has a claim upon two 
 funds as security cannot be required to ex- 
 haust one in preference to the other, except 
 where it can be done without injustice to 
 himself : Cutler v. Amman, 65-281. 
 
 211. If a judgment creditor levies upon 
 land which is subject to the lien of his judg- 
 ment, but has been subsequently sold or 
 mortgaged by the debtor, equity will, upon 
 proper application by the vendee or mort- 
 gagee thereof, direct the judgment to be 
 made from lands of the debtor remaining 
 unsold, if they are sufficient for that pur- 
 pose, and if not sufficient they are neverthe- 
 less first to be sold and the proceeds applied 
 so far as they will go : Massie v. Wilson, 16- 
 390. 
 
 212. The general practice of marshaling 
 assets recognized, and held that a ward 'who 
 had come of age and might recover from his 
 guardian and bondsman money due him 
 must resort to that remedy, and not insist 
 upon a trust deed made for his benefit but 
 covering land not purchased with his money 
 and on which creditors were endeavoring to 
 enforce a lien : Thomas v. Pyne, 55-348. 
 
 213. It seems that if a person holding a 
 junior lien upon personal property should 
 commence proceedings to compel the holder 
 of a senior lien to satisfy his claim out of 
 property which was subject to that lien 
 alone, such senior lien-holder would not be 
 allowed, by purchasing and paying for the 
 property subject to his lien alone, to defeat 
 
 the proceedings: Connolly v. Dillranee, 
 50-92. 
 
 214. While the general rule is that if the 
 creditor has two funds out of which to make 
 his debt, he may be required to resort to that 
 fund upon which another creditor has no 
 lien, yet this rule is not to be taken without 
 some quaUflcations. It is never applied 
 unless it can be done without injustice to the 
 creditor or other party in interest, having 
 title to the double fund, and also without 
 any injustice to the common debtor : Dickson 
 V. Chorn, 6-19. 
 
 215. Therefore, held, that where a cred- 
 itor had security by a mortgage upon a debt- 
 or's homestead, he might take Ibis pro rata 
 share under a general assignment for the 
 benefit of creditors, and hold his mortgage 
 security only as to the balance of his claim, 
 and that the other general creditors could not 
 be subrogated to his rights as to the portion 
 of the mortgage not yet exhausted : Ibid. 
 
 216. The rule as to mai-shaling assets does 
 not apply unless it can be enforced without 
 injustice to the creditor. Therefore, held, 
 also, that a creditor to whom numerous notes 
 had been assigned as collateral security for 
 an indebtedness which was also secured by a 
 mortgage could not be compelled by other 
 creditors having a claim upon the mortgaged 
 premises, to first resort to the collateral se- 
 curity for payment : Wolf v. Smith, 36-454, 
 
 217. The rule as to marshaling assets does 
 not apply where a pai-ty has a remedy against 
 each of two parties, either of whom he may 
 hold: Barhydtv. Burgess, 46-476. 
 
 218. Where one creditor has a claim 
 against one debtor individually and another 
 claim against such debtor and another jointly, 
 and holds two mortgages upon the same 
 property from the first-mentioned debtor to 
 secure two claims, he may satisfy the first 
 claim out of the property and look to the 
 joint debtor for any balance luipaid on the 
 second claim, and will not be compelled to ap- 
 ply the amount released from the property 
 pro rata upon the second claim: Small v. 
 Older, 57-826. 
 
 219. The doctrine as to the marshaling of 
 assets does not apply as between two mort- 
 gagees, under a mortgage covering but a sin- 
 gle fund or tract. The rights of the prior 
 mortgagee as to any particular portion of the 
 
EQUITY, II, e. 
 
 697 
 
 Quieting title. 
 
 tract of land cannot be impaired by the act 
 of the junior mortgagee: Hutchinson v. 
 WeOs, 67-430. 
 
 e. Quieting title. 
 
 220. Who may bring action: By statutory 
 provision (Code, § 3273) action to quiet title 
 may be brought by a party out of possession 
 against one in possession. Plaintiff is not re- 
 quired to resort to action for possession : Lewis 
 V. Smile, 53-11 ; Lees v. Wetmore, 58-170. 
 
 221. And plaintiff may, in such case, also 
 ask the recovery of possession : Lees v. Wet- 
 more, 58-170. 
 
 222. But aside from statutory provision, a 
 party not in possession cannot maintain an 
 action to remove a cloud from his title : Har- 
 rington V. Cubbage, 3 G. Gr., 307. 
 
 223. While an action to recover real prop- 
 erty is the appropriate and most effectual 
 remedy where defendant is in possession, yet 
 in such cases an action to quiet title may be 
 maintained: Leans v. Soule, 52-11. 
 
 224. In the federal courts a party out of 
 possession, having the legal title, cannot have 
 such equitable relief, his remedy at law being 
 sufiicient: Whitehead v. Entviistle, 27 Fed. 
 Rep., 778; Newman v. Westeott, 29 Fed. 
 Rep., 49. 
 
 225. A party who has sold and conveyed 
 all his interest in the title to land cannot 
 thereafter maintain an action to quiet the 
 title of tho same : Adams County v. Burling- 
 ton & M. B. B. Co., 39-597. 
 
 226. One who has an equitable title to land 
 may maintain an action to quiet title against 
 one who has no right thereto, without first 
 having his legal title perfected, as, for in- 
 stance, by having the reformation of his deed 
 in equity. But the purchaser of a void title 
 has no equity as against a rightful claimant 
 of the property: Bankinv. Miller, 43-11. 
 
 227. Executors entitled to the possession 
 and control of land for the purpose of carry- 
 ing out the provisions of a will have sufficient 
 interest to support this action: Laverty v. 
 Sexton, 4.1-^35, 
 
 228. If a tax deed upon unoccupied land 
 has been recorded, either the tax purchaser 
 or the original owner may bring action 
 against the other to quiet title within the five 
 years' limitation provided by statute: Bar- 
 rett V. Love, 48-103. 
 
 229. One who does not show competent 
 title in himself cannot have the title to prop- 
 erty quieted as against the holder of a tax 
 title, although the statutory period has run 
 against an action by such tax title holder to 
 assert his rights in the property : Vamum v. 
 Shuler, 69-92. 
 
 230. When action maintainable: The 
 owner and possessor of real estate is entitled 
 to go into equity to quiet his title against one 
 who lays claim thereto and gives out and 
 claims that he has title: Standish v. Dow, 
 21-363. 
 
 231. Where plaintiff had been in possession, 
 under claim and color of title, at the time 
 defendant acquired a void tax title, held, that 
 plaintiff could recover and hold possession as 
 against defendant holding under such void 
 title, and be restored in equity to his rights, 
 notwithstanding defects in his chain of 
 title: Keokuk & D. M. B. Co. v. Lindley, 
 48-11. 
 
 232. Where a bond for a deed had been 
 executed, and afterwards the agreement had 
 been rescinded but the bond was not deliv- 
 ered up, held, that an action to quiet title as 
 against the holder of the bond was proper : 
 Smith V. Van Campen, 40-411. 
 
 233. The owner of land who has remained 
 in possession thereof for such length of time 
 after the issuance of a tax deed that action 
 by the holder of the tax title to recover pos- 
 session is barred, may maintain action against 
 the holder of such tax title to remove the 
 cloud caused by the tax deed, and such action 
 will not be barred by the statute which bars 
 an action for the recovery of real property 
 sold for the non-payment of taxes : Peck v. 
 Sexton, 41-566. 
 
 234. Where defendant set up a tax deed, 
 and plaintiff, in reply, alleged that defend- 
 ant's rights thereunder were bari'ed, held, 
 that this did not amount to an admission by 
 plaintiff of defendant's title, and would not 
 prevent a decree for plaintiff: Tabler v. Cal- 
 lanan, 49-362. 
 
 236. The fact of a cloud upon the title of 
 property sold cannot be set up as ground for 
 enjoining an action for tbe purchase money, 
 but may perhaps be interposed to prevent 
 the enforceinent of the judgment when re- 
 covered: Dietzv. Mock, 47-451. 
 
 236. This action can only be brought 
 
598 
 
 EQUITY, II, e, f. 
 
 Quieting title. — Miscellaneous cases. 
 
 against a person claiming title (decided under 
 Code of 1851 and Revision): Fejervary v. 
 Langer, 9-15Q; Eldridge v. Kuehl, 37-160, 176. 
 
 237. Notice by publication: The action 
 may, by statutory provision, be brought 
 against a non-resident defendant on notice by 
 publication : Miller v. Davison, 31-435. But 
 a judgment in such case wiU not bar the non- 
 resident who has made no appearance, from 
 afterward asserting his right to the property 
 in a federal court: Pitts v. Clay, 27 Fed. 
 Rep., 635. 
 
 238. A petition substantially embodying 
 the averments mentioned by the statutory 
 provision, with a general prayer for equita- 
 ble relief, wUl justify the granting of this re- 
 lief, though it be not specifically asked : Baton 
 V. Lancaster, 38-494. 
 
 239. Relief: Other equitable relief, as well 
 as a decree quieting title, may be asked in 
 the same petition: Buena Vista County v. 
 Iowa Falls & S. C. M. Co.. 49-657. 
 
 240. A court of equity has jurisdiction to 
 quiet title and to restrain those having ad- 
 verse titles from setting them up against the 
 paramount title, but defects and irregulari- 
 ties in the title arising out of the official acts 
 of the ministers of the law wUl not be cured : 
 Stevenson v. Bonesteel, 30-386. 
 
 241. Where a case stood upon a cross-biU 
 to quiet title and a defense of an oral con- 
 tract to convey, held, that it was of equity 
 jurisdiction, and a motion to transfer it to the 
 law docket was properly overruled : Harlan 
 V. Porter, 60-446. 
 
 242. Unless it appears that the cloud upon 
 plaintiEE's title cannot be removed by an 
 action of right or an action of ejectment, or 
 that the title could not be settled so as to pre- 
 vent a multiplicity of suits without the aid of 
 chancery, complainant will be left to his 
 remedy at law : Harrington v. Cubbage, 3 G. 
 G^r., 307. 
 
 243. As the right of possession to property 
 is soinething distinct from the title, it does 
 not follow that, upon judgment^ for defend- 
 ant for costs in an equitable action to set 
 aside defendant's title, the defendant is en- 
 titled to the right of possession : Lombard v. 
 Atwater, 43-599. 
 
 244. The proceedings under statutory pro- 
 visions for quieting title are not special pro- 
 ceedings : Miller v, Davison, 31-435. 
 
 245. An action to quiet title under the 
 statute is, in effect, an equity suit and must 
 be brought and determined as such : Balmear 
 V. Otis, 4 Dillon, 558. 
 
 246. The provisions of statute that, in an 
 action to recover real property, plaintiff must 
 rely solely on the strength of his own title 
 (Code, § 3247), and in regard to new trials in 
 such actions (Code, § 3368), are not applicable 
 in actions to quiet title: Russell v. Nelson, 
 32-215. 
 
 f. Miscellaneous cases. 
 
 247. Mutual accounts: Equity has- juris- 
 diction of a bill of account, both on the 
 ground that a discovery may be had in such 
 cases, and that the remedy is more complete 
 and adequate than at law because a multi- 
 plicity of suits may be avoided: VFhite v. 
 Hampton, 10-238. 
 
 248. Cases of mutual account are of equi- 
 table jurisdiction. Although the court of 
 equity may not have jurisdiction of every 
 action for goods, wares and merchandise sold 
 and delivered, or for monej' advanced where 
 partial payments have been made, or for 
 every contract, expressed or implied, consist- 
 ing of various items on which sums of money 
 have become due and different payments 
 have been made, yet where there is a great 
 complexity in the accounts between the par- 
 ties and an examination of them by the jury 
 is impracticable, the court of chancery will 
 exercise jurisdiction: Burt v. Harrah, 65- 
 643. 
 
 249. Where parties to transactions stand 
 upon equal gi-ound, plaintiff being a borrower 
 and receiving proceeds of notes discounted 
 for him by defendant, the case is not of such 
 character as to impose on defendant the duty 
 of accounting, and there rests upon him the 
 burden of proving the receipt by plaintiff 
 of the different sums claimed to have been 
 paid him by defendant: Davenport v. Schutt, 
 46-510. 
 
 250. Where the items of account are all 
 on one side and no great complexity exists, 
 and no discovery is sought, the defendant 
 pleading payment, denial, etc., has a right to 
 trial by jury, and equity cannot take cogni- 
 zance of such action: McMartin v. Bing- 
 ham, 37-284. 
 
EQUITY, II, f. 
 
 599 
 
 Miscellaneous cases. 
 
 251. An action to recover from defendant 
 money received by him and converted to his 
 own use, where plaintiff has only to establish, 
 in order to recover, the amount of money 
 received by defendant and his failure to ac- 
 count therefor, is not within equitable juris- 
 diction : District Tp v. Bulks, 69-535. 
 
 252. Discovery: Equity will not take ju- 
 risdiction of a case on the ground of discov- 
 ery, if it be not shown that the practice of 
 the law courts and the rules of evidence pre- 
 vailing over it are such that the party can 
 obtain the evidence necessary to establish the 
 amount of recovery: Richmond v. Dubuque 
 d:S. C. R. Co., 33-423, 484. 
 
 253. The fact that plaintiff prays that de- 
 fendant be required to iM-oduce the note sued 
 on and attach a copy of it to his answer does 
 not bring the case within equitable cogni- 
 zance. Under the provisions of Code, § 2523, 
 an action solely for discovery cannot be 
 bi-ought in equity: Searcy v. Miller, 57-613. 
 
 254. Lost instrument ; accident: In order 
 that a bill may be maintained in equity to 
 recover on a lost instrument, the bill must 
 state that without the desired discovery the 
 party has not sufficient evidence to maintain 
 a suit at law. If the insti'ument is not lost, 
 or if complainant has sufficient evidence to 
 establish its contents, his remedy is at law : 
 Temple v. Gove, 8-511. 
 
 255. Accident is an established gi-ound of 
 relief in equity, and covers not merely un- 
 avoidable casualties, but unforeseen events, 
 losses, etc., such as ai'e not the result of negli- 
 gence or misconduct in the party, and the 
 usual instance of such relief is where a bond 
 or other security has been lost, burned or ac- 
 cidentally canceled: Butch v. Lash, 4^315. 
 
 256. Contribution: A judgment creditor 
 cannot be enjoined from selling a piece of 
 property aliened subsequently to the lien of 
 his judgment until the right of contribution 
 is adjusted between the several alienees. He 
 has the right to subject any of his property 
 to his claim without reference to the contri- 
 butive obligations : Massie v. Wilson, 16-390. 
 
 257. Where property subject to an incum- 
 brance is sold to different persons at different 
 times subsequently to the incumbrance, the 
 property assigned must contribute ratably 
 and not in the inverse order of alienation : 
 Ibid. ; Bates v. RuddicJc, 2-433. 
 
 258. Multiplicity of suits: While the 
 avoidance of a multiplicity of suits is some- 
 times a ground for the exercise of jurisdic- 
 tion in equity, the doctrine is usually ap- 
 plied in cases where equity has the jurisdic- 
 tion of the subject-matter out of which grow 
 other cases requiring jurisdiction. In such 
 cases, the party will not be turned over to 
 the law courts which have cognizance of the 
 matter, but the case will be retained in equity 
 that all rights relating thereto may be set- 
 tled. But the mere fact that there exist 
 diverse causes of action which may be the 
 foundation of as many additional suits be- 
 tween the parties thereto, is not a ground 
 upon which equity may be asked to assume 
 jurisdiction to settle all such matters in one 
 suit: Richmond v. Dubuque d: S. C. R. Co., 
 33-422, 487. 
 
 259. A forfeiture will not be enforced by 
 a court of equity: Doolittle v. Bridgeman, 1 
 G. Gr., 265. 
 
 260. Courts of equity will never aid in the 
 divesting of an estate for a condition subse- 
 quent : Marshalltown v. Forney, 61-578. 
 
 261. Dower: A claim for dower, and an 
 account of rents and profits of the property 
 in which dower is claimed, is of equitable 
 cognizance : Gano v. Gilruth, 4 G. Gr., 453. 
 
 2C2. Set-off: The rule of courts of equity 
 is that they follow the law in regard to set- 
 off unless there is some intervening equity 
 going beyond the statute of set-off. Such 
 natural equity aiises where there are mutual 
 credits between the parties, or where there is 
 an existing debt on one side which consti- 
 tutes a ground of credit on the other, or 
 where there is an express or implied un- 
 derstanding that mutual debts shall be a 
 satisfaction or set-off pro tanto between the 
 parties. Mutual credits alone will not give 
 the right of set-off in equity : Davis v. Mil- 
 burn, 8-163. 
 
 263. Courts of equity have entertained 
 jurisdiction of matters of set-off when there 
 has been an obstacle to the complainant's 
 proceeding at law, by reason of insolvency 
 or the like : Ibid. 
 
 264. Defective execution of powers: Al- 
 though the defective execution of a power 
 may be corrected or aided by a court of 
 equity in a proper case, the entire want of 
 execution cannot be supplied; nor can ex- 
 
600 
 
 EQUITY, III. 
 
 Pleading and procedure. 
 
 press requirements of statute as to methods 
 of executing a particular instrument be dis- 
 pensed with. So held in case of failure of a 
 person to execute an instrument of adoption 
 of a child : Long v. Hewitt, 44^-363. 
 
 265. EstaWishmeiit of lien: It being pro- 
 vided by statutory provisions regarding the 
 sale of intoxicating liquors that a judgment 
 for damages against a person illegally selling 
 shall bo a lien against the building in which 
 the sales are made with consent and knowl- 
 edge of the owner, held, that the question 
 whether the premises were used for such 
 illegal sales with consent and knowledge of 
 the owner was one of law in which defend- 
 ant had a right to a jury trial, and that the 
 proceeding was not an equitable action for the 
 establishment of a lien, the lien being estab- 
 lished by statv-te when proper facts were 
 found : Loan v. Hiriey, 53-89. 
 
 III. Pleading and peocedtiee.' 
 
 266. Parties: An assignment, voluntary 
 or involuntary, by plaintiff, will not consti- 
 tute a bar to the prosecution of the suit, but 
 the assignee may be required to be made a 
 party by a supplemental bill: Wright v. 
 Meek, 3 G. Gr., 472. 
 
 267. Where there is unity in interest in the 
 object to be determined by the bill, parties 
 seeking redress may join in the same com- 
 plaint and bring their action together : Pow- 
 ell V. Spaulding, 3 G. Gr., 443. 
 
 268. Thus an administrator may join in an 
 action with parties jointly interested with 
 his intestate, seeking to set aside a judgment 
 of partition of lands : Ibid. 
 
 269. Multifariousness: A bill is not to be 
 treated as multifarious because it joins two 
 good causes of complaint growing out of the 
 same cause of action, when all of the defend- 
 ants are interested in the same claim of right, 
 and the relief asked for in relation to each is 
 of the same general character: Bowers v. 
 Keesecher, 9-422. 
 
 270. Demurrer: The sufficiency of a plea 
 in the nature of a bill of review may be 
 questioned by demurrer : De Louis v. Meek, 
 3 G. Gr., 55. 
 
 271. If the demurrer is sustained and no 
 motion made for leave to amend, judgment 
 may properly be entered on the demurrer: 
 Ibid. 
 
 272. The fact that complainant has a plain 
 and adequate remedy at law is a ground of 
 demurrer in equity : Preston v. Daniels, 3 
 G. Gr., 536. 
 
 273. If any of the charges or specifications 
 contained in the bill are good and such as 
 would entitle the plaintiff to relief, a de- 
 murrer which goes to the whole bill cannot be 
 sustained : Powell v. Spaulding, 3 G. Gr., 443. 
 
 274. Substantial defects in the bill which 
 might be raised by demurrer may be taken 
 advantage of on the hearing, although not 
 raised by demurrer: Dinwiddie v. Roberts, 
 1 G. Gr., 363; Cheuvete v. Mason, 4 G. Gr., 
 331 ; Kriechbaum v. Bridges, 1-14 ; Cowles v, 
 Shaw, 3-496. 
 
 275. Where a defect in a pleading is one of 
 form, and the case is such that the court can 
 properly proceed to a decree, the defect can- 
 not be raised on final hearing: Moore v. 
 Pierson, 6-379. 
 
 276. A plea In bar should never be sus- 
 tained if it is based on facts which have 
 transpu-ed since the filing of the bill : Wright 
 V. Meek, 3 G. Gr., 473. 
 
 277. Cross-bill: A respondent cannot pray 
 anything in his answer except to be dismissed 
 the court, and if he seeks any relief, he must 
 do so by cross-bill: Oompton v. Corner, 4-577; 
 Armstrong v. Pierson, 5-317 ; MacGregor v. 
 MacQreqor, 9-65. 
 
 278. Keplication: The general practice in 
 this country is to treat the case as f uUy at 
 issue on the filing of the replication : State 
 ex rel. v. Tilghman, 6-496. 
 
 General prayer for relief: Under a gen- 
 eral prayer for relief in an equitable action, 
 plaintiff is entitled to any relief to which he 
 is entitled in equity under the facts pleaded: 
 See Pleadings, §g 432-438. 
 
 279. Decree proconfesso: In an equitable 
 action upon proof of service, if defendant 
 makes default, a decree pro confesso may be 
 entered without establishing by proof the al- 
 legations in the bill : Humphreys v. Darling- 
 ton, 3 G. Gr., 588. 
 
 * The provisions of the Code as to civil procedure are applicable in equity as well as at law, and the cases 
 relating thereto are collected under Pleading and Pkoceduee respectively. The following cases relate to 
 peculiar doctrines of equity procedure which are now, for the most part, superseded in this state. 
 
EQUITY, III — ESTATES OF DECEDENTS. 
 
 601 
 
 Pleading and procedure. 
 
 280. While a bill not denied is to be taken 
 as confessed, yet the extent of such confes- 
 sion is frequently measured by the exhibits 
 attached to the bill, and though there be no 
 answer, if proof is introduced which de- 
 stroys the case made by the bill, relief should 
 be denied: Cooh v. Woodbury County, 13-21. 
 
 281. Decree should conform to pleadings: 
 The decree must be predicated upon the alle- 
 gations of the pleadings : Simplot v. Simplot, 
 14r449. 
 
 282. ETidence limited by pleadings: Al- 
 though a defendant may answer as to fraud 
 generally, yet if he states a particular state 
 of fraud only, he will be confined in his evi- 
 dence to that: Brinh v. Morton, 3-411. 
 
 283. Effect of sworn answer: The allega- 
 tions of the bill being- explicitly denied by the 
 answer, complainant must sustain his allega- 
 tions by proof, or fail : Jones v. Jones, 13-276. 
 
 284. To overcome a sworn answer in equity 
 requires the testimony of two credible wit- 
 nesses or other evidence of equal weight and 
 force : Pierce v. Wilson, 2-20. 
 
 285. The testimony of one witness is not 
 sufficient to overcome such answer : Davis v. 
 Stevens, 3-158. 
 
 286. A sworn answer or replication in 
 equity when requu-ed by the opposite party is 
 conclusive evidence as to matters about which 
 the opposite party seeks disclosure, unless it 
 is overcome by the evidence of two witnesses 
 corroborated by other circumstances ; but a 
 party cannot give his pleading such effect by 
 swearing to it when a sworn pleading is not 
 called for : Bacon v. Lee, 4-490. 
 
 287. The rule as to the effect of a sworn 
 answer does not apply to so much of the 
 answer as sets up new matter in avoidance of 
 the allegations confessed: White v. Samp- 
 ton, 10-238. 
 
 288. It is the right of defendant in an 
 equitable action to answer under oath, and 
 plaintiff cannot deprive him of the advantage 
 of such an answer by waiving in his bill the 
 requirement of an answer under oath : Arm- 
 strong v. Scott, 3 G. Gr.. 433. 
 
 A sworn answer is no longer of any effect 
 as evidence : See Plbadins, g§ 219, 230. 
 
 289. Submission of issue to jury: The 
 reference of a question of fact to a jury is a 
 matter resting entirely in the chancellor's 
 discretion : White v. Hampton, 10-338. 
 
 290. Where the court directs a question of 
 fact to be submitted to the consideration of 
 a jury, it is not required to refer all the 
 questions of fact in the case raised by the 
 pleadings: Chamberlain v. Juppiers, 11-513. 
 
 291. Where a question is thus submitted 
 to a jury, the verdict is not decisive or bind- 
 ing to the same extent as when rendered in 
 a suit at law. But if the parties have, with- 
 out objection, submitted such issues to the 
 jury, and there has been a full investigation 
 of the circumstances involved, every doubt 
 in the mind of the court on such issue should 
 be solved in favor of the verdict : McDaniel 
 V. Marygold, 2-500. 
 
 292. It is not proper under present rules of 
 procedure to submit an issue in an equity 
 case to a jury : Hobart v. Hobart, 51-512. 
 
 293. Record : On a bill to review a decree 
 in chancery on the ground that error is ap- 
 parent on the face of the decree, the decree 
 is to be treated as including the bill, answer, 
 and other proceedings, except the evidence, 
 and they may all be looked into for the pur- 
 pose of determining whether the alleged er- 
 ror exists : Saum v. Stingley, 3-514. 
 
 294. Hearing and decree: The trial of a 
 chancery suit is called a hearing, and, tech- 
 nically considered, this includes not only the 
 introduction of the evidence and the argu- 
 ments of the solicitors, but the presentment 
 of the decree by the chancellor : Babcoclc v. 
 Wolfe, 70 . 
 
 ESTATES OF DECEDENTS. 
 
 I. Appointment of administratoes and 
 
 EXECUTORS. 
 
 n. Assets; powers of admimstratoe 
 
 OVER. 
 
 a. What deemed assets; exempt prop- 
 
 erty ; life insurance. 
 
 b. Allowance to widow. 
 
 c. Powers of executors and adminis- 
 
 trators; administrator de son 
 tort. 
 in. Suits by and against execjdtors and 
 
 ADMINISTRATORS. 
 
 IV. Claims; presentation and allow- 
 ance. 
 v. Sales op real property by executoe 
 OR admlnisxratoe. 
 
'602 
 
 ESTATES OF DECEDENTS, I. 
 
 Appoiatment of administrators and executors. 
 
 VI. Distribution; widow's shake; de- 
 scent. 
 
 a. Distribution of personal property. 
 
 b. Share of widow i7i personal prop- 
 
 erty. 
 
 c. Share of surviving husband or 
 
 wife in real property ; dower. 
 
 d. Descent.' 
 
 YH. EEPOETS of EXECUTOB OB ADMINISTRA- 
 TOB; ACCOUNTING; LIABILITY. 
 
 I. Appointment of administeatoes and 
 
 EXECUTOES. 
 
 1. Where to be appointed: Administra- 
 tion upon the estate of a non-resident may be 
 granted in any county in which real property 
 of decedent is situated, provided there are 
 debts of decedent, and it does not appear that 
 there is personalty, or sufficient personalty, 
 to satisfy them : Little v. Sinnett, 7-324 ; Lees 
 V. Wetmore, 58-170. 
 
 2. As the administrator has nothing to do 
 with the real property of decedent unless it 
 be found that it is necessary for the payment 
 of debts, an application for the grant of let- 
 ters of administration upon real estate alone 
 should show that such debts exist : Little v. 
 Sinnett, 7-334. 
 
 3. Where a court assumes jurisdiction to 
 appoint an administrator, such appointment 
 cannot be collaterally attacked by showing 
 that there was no property upon which ad- 
 ministration could be granted: Murphy v. 
 ■Creighton, 45-179. 
 
 4. Limitation of time for granting ad- 
 ministration: Under the statutory provision 
 (Code, § 2367) that original administration 
 shall not be granted after the lapse of five 
 years from the death of decedent, or in case he 
 ■died out of the state, from the time his death 
 was known, held, that where it appeared that 
 -administration on the estate of a person 
 ■dying out of the state was granted after five 
 years from the time of his death, it would bS 
 presumed that it was shown to the court that 
 -such grant of administration was within five 
 years from the time his death was known : 
 Xees V. Wetmore, 58-170. 
 
 5. -An administrator de bonis non may be 
 appointed after the lapse of five years from 
 the death of decedent. The above provision 
 refers to the first assumption of management 
 
 of the estate by the probate court in the ap- 
 pointment of the first administrator : Crossan 
 V. McCrary, 87-684. 
 
 6. -Ancillary administration in this state 
 may be granted after the expiration of five 
 years to an administrator appointed in 
 another state: Woodruff v. Schultz, 49-430; 
 Dolton V. Nelson, 8 Dillon, 469. 
 
 7. A judgment creditor who has failed to 
 have administration granted within the time 
 specified cannot afterwards maintain an ac- 
 tion to revive his judgment against the heirs 
 or others holding property which belonged 
 to such decedent. Whether any eqmtable 
 circumstance would warrant the gi-anting of 
 original administration after the expiration 
 of five years, quaere: Bridgman v. Miller, 
 50-393. 
 
 As to title to property in case administrar 
 tion is not granted, see infra, %% 374, 275. 
 
 8. Wlio to be appointed: The fact that 
 there was an agreement of separation be- 
 tween husband and wife will not deprive the 
 latter of her preference in the matter of ad- 
 ministering on the estate of her deceased 
 husband : Read v. Howe, 13-50. 
 
 9. After the lapse of the time allowed to 
 relatives of different degrees to apply for 
 administration, the court may appoint any 
 proper person even though not next of 
 kin nor a creditor : Crossan v. McCrary, 37- 
 684. 
 
 10. Non-residence: The fact that a person 
 who is within the degrees of relationship 
 specified by the statute is a non-resident will 
 be sufficient ground for ^refusing his appoint- 
 ment: In re Estate of O'Brien, 63-633. 
 
 11. The mere fact of non-residence will 
 not necessarily disqualify a person from be- 
 ing appointed as an administrator. But it 
 should be considered in determining the qual- 
 ifications of an applicant: Chicago, B. & 
 Q. R. Co. V. Gould, 64-348. 
 
 12. The statutory provision (Code, § 2347) 
 declaring that the removal from the state 
 of an administrator shall create a vacancy 
 does not disqualify a non-resident for hold- 
 ing the office, but simply enables the court 
 to take into account the fact of non-residence 
 occurring after the original appointment, 
 and the administrator who has become a non- 
 resident may, nevertheless, be reappointed, 
 if deemed advisable : Ibid. 
 
ESTATES OF DECEDENTS, I. 
 
 603 
 
 Appointment of administrators and executors. 
 
 13. Adjudication of heirship: The grant 
 of letters of administration to a person is not 
 in itself an adjudication that such person is 
 an heir, and that there are no other heirs 
 having a better right to administer : Anson 
 V. Stein, 6-150. 
 
 14. Where the will designates an exec- 
 utor, the court has no jurisdiction to ap- 
 point a general administrator. It can only 
 appoint a special administrator, to serve until 
 the will is proved and the executor is author- 
 ized to act : Pickering v. Weiting, 47-242. 
 
 15. Additional administrator: An ap- 
 pointment of an additional administrator 
 (even against the objection of the one first 
 appointed) will not be disturbed on appeal 
 unless an abuse of the discretion of the court 
 in such matters can be shown: Read v. 
 Howe, 13-50. 
 
 16. Resignation; filling vacancy: An 
 executor may surrender his trust by resigna- 
 tion, and after a reasonable time for filling 
 his place he will be released from the duty 
 of participating in the settlement of the es- 
 tate without any formal order accepting such 
 resignation, and a service of notice upon him 
 thereafter as executor will not be good: 
 United States Boiling Stock Co. v. Potter, 
 48-56. 
 
 1 7. In case of a vacancy by resignation the 
 person appointed succeeds to the duties and 
 obligations as well as the powers of the first 
 executor, and can discharge such duties and 
 obligations without delay or interruption: 
 Shawhan v. Loffer, 24-217. 
 
 18. An administrator with the will an- 
 nexed, appointed in accordance with Code, 
 §§ 2348, 2349, cannot exercise a power given 
 the executor by the will to sell real property: 
 Hodgin v. Toler, 70 . 
 
 19. Special administrator: A special ad- 
 ministrator does not represent the estate in 
 such manner that the statute of limitations 
 will commence to run against claims from 
 the time of his appointment: Pickering v. 
 Weiting, 47-242. 
 
 20. A special administrator need not give 
 notice of his appointment : Ibid. 
 
 21. The court has no authority to order a 
 sale of real estate upon the petition of a 
 special administrator, and such sale would 
 be without jurisdiction and absolutely void: 
 Long V. Burnett, 13-28. 
 
 22. A special administrator may be substi- 
 tuted as plaintiff in a suit pending in behalf 
 of the deceased, and may prosecute the 
 same: Mastersonv. Brown, 51-442. 
 
 23. In the absence of a direct review, by 
 appeal or otherwise, of the action of the cir- 
 cuit court in appointing a special adminis- 
 trator, it will be presumed that a proper 
 occasion existed .for his appointment: Ibid. 
 
 24. Qnalifleation : The fact that the ad- 
 ministrator's bond is signed and sworn to 
 before his appointment will not affect the va- 
 lidity of the appointment : Morris v. Chicago, 
 R. I. & P. R. Co., 65-727. 
 
 25. Evidence of appointment: Where the 
 record of the appointment of a person as ex- 
 ecutor was not given, but he was referred to 
 and mentioned throughout the record of the 
 court as the executor, and made the report of a 
 sale as executor, and finally resigned as such, 
 held, that this was prima fade sufficient to 
 satisfy the court on appeal that he was exec- 
 utor in fact: Shawhan v. Loffer, 24^217. 
 
 26. Appointment by clerls : The fact that 
 letters of administration are signed by the 
 clerk will not show that the appointment of 
 the administrator was made by the clerk. 
 Such letters ai'e not the evidence of the ad- 
 ministrator's appointment, and they would 
 be issued in that form, although the ap- 
 pointment was made by the court during 
 trial term : Citizens^ Bank v. Rhutasel, 67- 
 316. 
 
 27. Letters: If the clerk issues letters 
 giving greater power than authorized by 
 law, the grant of such excessive power is 
 void : Pickering v. Weiting, 47-242. 
 
 28. Letters to foreign administrator: A 
 foreign administrator cannot sue in our courts 
 without taking out letters of administration: 
 McClure v. Bates, 12-77; Karrick v. Pratt's 
 Ex'rs, 4G. Gr., 344. 
 
 29. The appointment of an administrator 
 in another state will be presumed to be regu- 
 lar: Woodruff V. Schultz, iQ-i30. 
 
 30. Notice: The provision as to giving no- 
 tice is directory, and omission to give the 
 notice does not have the effect to annul the 
 appointment, or prevent the administrator 
 from discharging the duties pertaining 
 thereto : Johnson v. Barker, 57-32. 
 
 31. Under Code, § 3698, the afBdavit of 
 the executor is competent to prove the fact 
 
604 
 
 ESTATES OF DECEDENTS, 11, a, b. 
 
 Assets. — What deemed. — Allowance to -widow. 
 
 of his having posted notice of his appoint- 
 ment : Brownell v. Williams, 54-353. 
 
 33. An administrator de bonis non at 
 common law derived title from the deceased 
 and not from the former administrator, and 
 was entitled only to the goods and personal 
 property remaining in specie, but in this 
 state the powers and duties of a substituted 
 administrator are determined by statute 
 (Code, §g 2348-9) : Steivart v. Phenice, 63-475. 
 
 SH. A substitnted administrator may sue 
 his predecessor on his bond for funds re- 
 ceived by him and not applied to the pay- 
 ment of debts of the estate, where there are 
 such debts. It is not necessary thai the ac- 
 tion be brought by the creditors entitled to 
 such funds : Ibid. 
 
 34. But if there are no claims against the 
 estate, then the parties entitled to share in 
 the assets and not the administrator de bonis 
 non must sue: Ibid.; Kelleyv. Mann, 56-625. 
 
 II. Assets ; powees of administeatoe 
 
 " OVEE. 
 
 a. What deemed assets; exempt prop- 
 erty; life insurance. 
 
 35. Debt dne from executor: The old 
 common law rule that a debtor who has been 
 made executor of his creditor's estate is re- 
 leased from his debt, when it does not appear 
 that the assets of the estate are insufficient 
 to pay the debts, is not in force : but where 
 there is a person other than the executor au- 
 thorized to collect the debts of the estate, a 
 suit or judgment against the executor for a 
 debt due by him to the estate should be 
 against him individually and not as exec- 
 utor : Raster v. Pierson, 37-90. 
 
 36. Exempt property: The administrator 
 cannot maintain replevin against the widow 
 or her vendees for the recovery of chattels 
 exempt from administration. He has no 
 power to control her disposition of such prop- 
 erty: Wilmington v. Sutton, 6-44. 
 
 Further as to the right of the widow to the 
 exempt property of the deceased husband, 
 see infra, §§ 276-281. 
 
 37. Life insurance: The administrator is 
 charged with the duty of collecting life in- 
 surance and distributing it to the proper per- 
 sons, and is liable on his bond for failure to 
 do so : Kelley v. Mann, 56-635. 
 
 38. The proceeds of a policy of life insur- 
 ance inure to the separate use of the husband 
 or wife and children, if any (Code, § 2372), 
 and are not to be distributed in such case 
 among the heirs generally, as other personal 
 property : Rhode v. Bank, 53-375. 
 
 39. The above provision contemplates a 
 case where the policy is payable to deceased 
 or his legal representative. If payable to 
 another person for the use and benefit of 
 such person, it cannot be otherwise disposed 
 of by will : McClure v. Johnson, 56-620, 
 
 40. The facts in a particular case held not 
 sufficient to establish an agreement that the 
 avails of life insurance should be subject to a 
 debt ; Herriman v. McKee, 49-185. 
 
 41. Proceeds of life insurance in the hands 
 of the beneficiary are subject to his debts: 
 Murray v. Wells, 53-356. 
 
 b. Allowance to widow. 
 
 42. When proper: There is no statutory 
 provision authorizing an allowance to be 
 made to the widow for her support for any 
 period except for the year subsequent to the 
 death of her husband as provided in Code, 
 § 3375. The probate court has no authority to 
 make an allowance for this purpose by vir- 
 tue of the terms of an ante-nuptial contract : 
 In re Estate of Collins, 66-79. 
 
 43. A court in equity may have jurisdic- 
 tion to carry out the terms of an ante-nuptial 
 contract and make an allowance in accord- 
 ance therewith for the support of the widow, 
 but a court of probate cannot grant such re- 
 lief: Ihid. 
 
 44. The allowance provided therein for 
 temporary support where necessary is no 
 part of the widow's dower or inheritance, 
 but something entirely distinct, and the 
 right thereto is not relinquished by an ante- 
 nuptial release of all rights of dower and in- 
 heritance as the widow and heir of deceased: 
 Mahaffy v. Mahaffy, 61-679. 
 
 45. Payment: While the primary idea of 
 the statute is that specific property must be 
 set off, yet, in case it is not possible, the 
 court may charge the executor with making 
 money payments, and that, too, regardless of 
 the question as to whether he has the requi- 
 site amount of money in his hands at that 
 time, if there is property which the executor 
 may convert into money for the purpose of 
 
ESTATES OF DECEDENTS, II, c. 
 
 605 
 
 Powers of executors and administrators. 
 
 making such payments: Estate of McRey- 
 nolds, 61-585. 
 
 4C. It is improper for the court to postpone 
 the payment of the allowance made to the 
 widow by ordering that an allowance made 
 to a creditor shall first be paid. The admin- 
 istrator cannot by any agreement or contract 
 with such creditor deprive the widow of her 
 right to priority as to her allowance : In re 
 Estate of Dennis, 67-110. 
 
 47. Under former statutory provisions, 
 held, that if the estate was insolvent so that 
 after the payment of debts there would be 
 nothing for disti'ibution, there was no author- 
 ity for directing the executor to pay an allow- 
 ance to the widow for the support of herself 
 and minor children : In re Application of 
 Hiesehler, 13-597. 
 
 48. Eednction of allowance; reyiew: The 
 statute (Code, g 2377) contemplates that the 
 allowance may, upon a proper application 
 and showing, be reduced. It should not or- 
 dinarily be paid in advance, but a reasonable 
 opportunity should be left to modify and i-e- 
 duce the allowance in case it should be found 
 necessary to do so: Estate of MoReynolds, 
 61-585. 
 
 49. In such matter the court must be al- 
 lowed the exercise of a considerable discre- 
 tion. In a particular case, held, that the 
 refusal of the lower court to make any al- 
 lowance would not be i-evei'sed on appeal: 
 Caldwell v. Caldwell's Estate, 54-456. 
 
 50. A reduction of the allowance can only 
 operate upon an unexpended balance thereof. 
 The widow canot be required to account for 
 or pay back any portion already expended : 
 Harshman v. Slonaker, 53-467. 
 
 c. Powers of executors and adminis- 
 trators; administrator de son tort. 
 
 51. Real estate: The administrator has no 
 title in the real property of decedent which 
 is subject to sale under a judgment against 
 such administrator: Lepage v. McNamara, 
 5-134. ' 
 
 52. The administrator has nothing what- 
 ever to do with the real estate unless it be 
 necessary to be sold for the payment of debts : 
 Little V. Sinnett, 7-324; Gray v. Myers, 45- 
 158; Hodgin v. Toler, 70 . 
 
 53. In the absence of statutory provision 
 
 (which is found, however, in Code, § 3613), 
 the administrator cannot maintain an action 
 of forcible entry and detainer as to real prop- 
 erty of decedent : Beezley v. Burgett, 15-192. 
 
 54. The administrator has no right as such 
 to receive the i-ents accruing after the death 
 of decedent from his real property : Foteaux 
 V. Lepage, 6-123; Kinsell v. Billings, 35-154. 
 
 55. Nor has he authority to pay out money 
 for repairs, impi-ovements and taxes upon 
 such property : Foteaux v. Lepage, 6-123. 
 
 56. Under statutory provision (Code, §2402), 
 the administrator may, in such case as is there 
 provided for, sue for rents, but to justify him 
 in doing so it must be shown that there is no 
 heir or devisee present and competent to 
 take: Shawhan v. Long, 26-488. 
 
 57. Whether under this section an admin- 
 istrator might bring action for injury to real 
 estate, queer e. Whatever he may do is as 
 trustee, not simply in his capacity as admin- 
 istrator, and he must aver the facts which 
 authorize him to act : Kinsell v. Billings, 35- 
 154. 
 
 58. Where by the terms of a will the ex- 
 ecutor is authorized to control and manage 
 the real property of deceased, to rent and 
 dispose of the same in accordance with its 
 provisions, etc., he may maintain an action 
 to quiet the title : Laverty v. Sexton, 41-435. 
 
 59. To give an administrator the right to 
 bring action to remove a cloud from the title 
 to land belonging to decedent and subject it 
 to the payment of his debts, he must show 
 by a full statement of the claims against the 
 estate and a hke account of the disposition 
 made of the personalty that the i-eal prop- 
 erty is necessary to the payment of the 
 debts. If, however, it appears that there 
 was no personal property, the showing of 
 the existence of debts would be sufficient : 
 Gladson v. Whitney, 9-267. 
 
 60. In such a proceeding, heirs are neces- 
 sary parties : Ibid. 
 
 61. Where growing crops are standing 
 upon land set apart to the widow as dower, 
 they pass with the lands and do not pass to 
 the executor: Ralston v. Ralston, 3 Q. Gr., 
 533. 
 
 62. A lease made by an executor not prop- 
 erly approved by the court has no validity, 
 and cannot be enforced against him: Capper 
 V. Sibley, 65-754. 
 
606 
 
 ESTATES OF DECEDENTS, II, c. 
 
 Powers of executors and administratora. 
 
 63. As a general rule the power conferred 
 by will upon an executor to sell real property 
 does not pass to an administrator with the 
 will annexed, and this rule is not affected by 
 Code, §§ 2348, 2349, providing for the appoint- 
 ment of such administrator : Hodgin v. Toler, 
 70 . 
 
 64. Personal property: Until the 'debts 
 and legacies are settled, an executor is en- 
 titled to the personal property, and may sue 
 for a recovery of debts due the estate : Orim- 
 mell V. Warner, 21-11. 
 
 65. Upon the appointment of the adminis- 
 trator, his title to the personal property relates 
 back to the death of the intestate : Haynes v. 
 Harris, 33-516. 
 
 As to the rights of heirs in the absence of 
 any administration, see infra, g§ 274, 275. 
 
 66. Possession by devisee of personal 
 property isprima facie evidence that he holds 
 it as such unless the same person is executor 
 and holds in that right : White v. Secor, 58- 
 533. 
 
 67. Authority to assign notes: An ad- 
 ministrator"has authority to assign notes and 
 bills, and in the absence of any showing to 
 the contrary it will be presumed that this 
 power has been rightly exercised, even if the 
 administrator improperly disposes of them. 
 His assignee taking in good faith acquires 
 good title: Marshall County v. Hanna, 57- 
 373. 
 
 68. Payment to: Where payment of a 
 claim due an estate was made to the widow 
 of decedent, who was afterwards appointed 
 administratrix, held, that such payment 
 operated as payment to the estate : Savery v. 
 Sypher, 39-675. 
 
 69. If the order of court appointing an ad- 
 ministrator is erroneous, and therefore void- 
 able merely, all acts of the administrator 
 until his appointment is set aside will be 
 valid, and payment made to him before re- 
 moval will bind the estate : Chicago, B. & 
 Q. B. Co. V. Gould, 64-343. 
 
 70. Payment to the widow of deceased, 
 who is not administratrix, of damages in 
 causing the death of decedent is not a satis- 
 faction of the claim of the estate : Dowell v. 
 Burlington, C. B. & N. B. Co., 62-629. 
 
 71. Accepting property in payment: The 
 administrator has no power to make a con- 
 tract with a creditor of the estate by which 
 
 the latter is to receive land in satisfaction of 
 the claim. Such a contract will not bind the 
 heirs: Hazlettv. Burge, 22-531. 
 
 72. It is doubtful at least whether an ad- 
 ministrator without leave of court can take 
 real property in payment of an indebtedness 
 to the estate. Where the heir owning the 
 estate entered into a parol agreement with 
 the administrator whereby any interest 
 which he was entitled to as heir or distributee 
 of deceased was to be applied on such in- 
 debtedness, held, that the administrator did 
 not thereby acquire a claim upon real prop- 
 erty descending to the heir, such as would 
 take priority ovei- the levy of attachment 
 against such heir at the suit of his creditor: 
 Allison V. Graham, 67-68. 
 
 73. Compromise: Upon a motion to set 
 aside a compromise made by an admin- 
 istrator by leave of court, held, that the 
 proper remedy was by a suit in equity to 
 which the person with whom the compromise 
 was made was a party: Henry County v, 
 Taylor, 36-259. 
 
 74. Allowance of payment or sntisfaction 
 without the approbation of the probate court, 
 held without authority under former statu- 
 tory provisions (He v., § 2405): Preston v. 
 Day, 19-127. 
 
 75. Power of local exeentor under 
 foreign will : Where a will probated in an- 
 other state empowered the executors at their 
 discretion to sell real and personal property 
 and appropriate the proceeds in the manner 
 indicated, held, that such power might be 
 exercised by an executor appointed in this 
 state where property was situated, and that 
 the power conferred was not in the nature of 
 a personal trust : Lees v. Wetmore, 58-170. 
 
 76. But power given in the will to sell real 
 property cannot be exercised by an admin- 
 istrator with the will annexed: Hodgin v. 
 Toler, 70 . 
 
 77. Conveyance by executor: To establish 
 title under an executor's deed, the grantee 
 must, in addition to introducing it in evi- 
 dence, prove the will and the probate thereof, 
 and lawful proceedings ending in the execu- 
 tion of the deed: Miller v. Miller, 63-387. 
 
 78. Power to borrow money: An execu- 
 tor authorized by the will to convert property 
 into money and put the same at interest has 
 no authority to mortgage the land for the 
 
ESTATES OF DECEDENTS, 11, c. 
 
 607 
 
 Powers of executors and administrators. 
 
 purpose of raising money, and the approval 
 by tlie court of such proceeding will not ren- 
 der it valid, but the estate having received 
 the money advanced upon such mortgage 
 wiU be required to repay it with legal inter- 
 est : Deery v. Hamilton, 41-16. 
 
 79. Execution of note: An executor or ad- 
 ministrator cannot give a promissory note 
 which will be binding as such upon the 
 estate. Such a note if executed will be indi- 
 vidually binding upon him, and he may be 
 sued thereon and an individual judgment 
 recovered against him : Winter v. Hite, 3-143. 
 
 80. In such case, even though he signs the 
 note with the addition of words indicating 
 his representative capacity, he will neverthe- 
 less be personally liable: Dunne v. Deery, 
 40-351. 
 
 81. The addition of the word "adminis- 
 trator " to,, the signature of an instrument 
 will not render the maker liable m a repre- 
 sentative capacity when there is nothing in 
 the instrument itself indicating that it was 
 given in such capacity : Try on v. Oxley, 3 G. 
 Gr., 889. 
 
 82. An administrator is liable individually 
 on a note given by him in satisfaction of a 
 claim due from the estate. The giving of the 
 note is prima facie evidence of a considera- 
 tion, and an admission that he has assets in 
 his hands sufiEicient to pay the amount: 
 Thompson v. Maugh, 3 G. Gr., 843. 
 
 83. Intermeddlers ; administrator de son 
 tort: The wife cannot, by the purchase of 
 property with the money of her deceased 
 husband, become entitled to such property, 
 even to the extent to which she is entitled to 
 share in his estate, but will hold the property 
 in trust : Claussen v. La Franz, 1-236. 
 
 84. Although the widow or heir is entitled 
 to a definite and determined portion of de- 
 cedent's property, yet neither can take the 
 property of decedent and invest it and ap- 
 propriate the proceeds: Sehaffner v. Oi-utz- 
 macher, 6-137. 
 
 85. When in such case the widow assumes 
 to administer without right, she cannot take 
 credit for that which, under a regular admin- 
 istration, might have been her own. The 
 portion which would have been hers individ- 
 ually, but which is so mingled with the 
 property of the heirs that it cannot be dis- 
 tinguished, cannot be detained by her as 
 
 against her heirs as a lien against the prop- 
 erty purchased by the proceeds of the estate : 
 Ibid. 
 
 86. A person who has been acting as agent 
 of decedent during his life-time has no au- 
 thox-ity after his death to use funds remain- 
 ing in his hands in payment of claims against 
 the estate, and will be accountable for funds- 
 so used. Even if this were not so, he would 
 not be allowed to escape liability for money 
 used, unless it were affirmatively shown that 
 the amounts were correct : Crispin v. Winkle- 
 man, 57-523. 
 
 87. Where the widow and heirs have ap- 
 propriated personal propex-ty in the purchase 
 and improvement of land, they become liable 
 as administrators de son tort in an action 
 by a creditor to the extent of the value of the 
 property coming into their hands, and the 
 funds thus improperly appropriated may be 
 pursued into the pi-operty purchased there- 
 with, subject to the payment of the debts of 
 the estate : Madison v. Shockley, 41-451. 
 
 88. The intermeddler is liable to an action 
 by a creditor of the estate, as well as by the 
 regularly appointed executor. The last clause 
 of Code, § 8484, is only intended as limiting 
 the amount of liability in such case: Elder v. 
 Littler, 15-65. 
 
 8!). A person in possession of property un- 
 der color of title cannot be regarded as an 
 executor de son tort, nor wiU the intermed- 
 dling with the lands of deceased charge a 
 person as executor in his own wrong, because 
 such interference is a wrong done to the 
 heirs or devisees : Claussen v. Lafrenz, 4 G. 
 Gr., 334. 
 
 90. Acts of defendant in dealing with 
 property of the estate held not to have re- 
 sulted in damage, and therefore not such as- 
 to render defendant liable to more tlxan 
 nominal damages: Portman v. Klemish, 54- 
 198. 
 
 91. An agent with whom notes are left for 
 collection by decedent in his life-time does- 
 not become liable as executor in his own 
 wrong for failure to turn over said notes to a 
 foreign administrator without demand hav- 
 ing been made for the same : Darr v. Darr, 
 59-81. 
 
 92. Discovery of assets: Under the stat- 
 utory provision (Code, § 3379) authorizing a 
 court or judge to require a person suspected 
 
608 
 
 ESTATES OF DECEDENTS, III. 
 
 Suits by and against executors and administratora. 
 
 of having taken wrongful possession of any 
 of the effects of deceased, or of having had 
 them under his control, to appear and submit 
 to an examination, and that the court or 
 judge may, if wrongful possession appears, 
 order the delivery of the same to the ex- 
 ecutor, the court is not given general juris- 
 diction for the discovery of assets. It may 
 not determine the question as an issue of 
 fact upon general evidence whether the per- 
 son has taken wrongful possession, but its 
 order must be based on the examination of 
 the defendant himself, and such order can 
 only be made after having obtained juris- 
 diction of defendant's person by his presence 
 in court: Rickmanv. Stanton, 32-134. 
 
 93. In this proceeding the pai'ties are not 
 to be heard as upon a trial, and other evi- 
 dence than that of the party summoned is 
 not to be introduced. The objection that the 
 adverse party in such pi'oceeding is an ex- 
 ecutor cannot be urged against a person thus 
 required to submit to an examination : Smyth 
 V. Smyth, 24-491. 
 
 94. An adrainistrator de son tort is liable 
 under Code, § 2484, at the suit of a creditor, 
 and the remedy by this section, which is 
 only in favor of an administrator, need not 
 be pursued: Madison v. Shockley, 41-451. 
 
 95. The finding of the court in such a pro- 
 ceeding cannot be pleaded in bar of an 
 action by the administrator to recover the 
 property of the estate : Ivers v. Ivers, 61-721. 
 
 III. Suits bt and against executoes 
 
 AND ADMINISTEATOES. 
 
 96. Sn1>$<titution of ndministrator as 
 party in action: The substitution of an ad- 
 ministrator in a suit by a deceased plaintiff 
 is not a ground for continuance on the part 
 of defendant: Masterson v. Brown, 51-442. 
 
 As to substitution, see, also. Parties, 
 §§ 220-227. 
 
 97. Action to set aside fraudulent con- 
 veyance: An administrator may bring action 
 to set aside a voluntary conveyance of prop- 
 erty by decedent if his estate is insolvent, 
 and the property or its value is required for 
 the payment of his debts : Cooley v. Brown, 
 30-470; Doev. Clark, 42-123. 
 
 98. And such action may be maintained 
 against a purchaser from the grantee in such 
 conveyance who took the property with 
 
 knowledge of the facts: Cooley v, Broim, 
 30-470. 
 
 99. The right of the administrator to bring 
 an action to set aside a fraudulent convey- 
 ance by his intestate does not defeat the 
 right of the creditor himself to maintain 
 such action : Harlin v. Stevenson, 30-371. 
 
 100. Suit by foreign administrator: A 
 foreign administrator or executor cannot 
 maintain an action without authority of the 
 court of probate in the jurisdiction in which 
 the debtor resides : Karrick v. PratVs Ex'ra, 
 4 G. Gr., 144. 
 
 101. Under the provisions of the Code of 
 '51, a foreign administrator could not sue in 
 our courts without taking out letters of ad- 
 ministration. But the letters of such foreign 
 administrator are admissible in evidence in 
 an action by him : McClure v. Bates, 12-77. 
 
 102. A foreign administrator who has ac- 
 quired possession of a note belonging to de- 
 ceased is entitled to its control and proceeds, 
 which he does not lose by sending it for col- 
 lection to a county in this state in wliich 
 ancillary jurisdiction has been granted, and 
 such administrator may maintain action for 
 the proceeds of such note in his own name 
 and personal right: Chamberlin v. Wilson, 
 45-149. 
 
 103. A foi'eign executor may make such 
 an assignment of a note due to his testator as 
 will enable the assignee thereof to bring ac- 
 tion thereon as owner against the maker in 
 the courts of any state in which such action 
 might have been brought by the testator 
 himself. Such right of action is not limited 
 to the state in which the executor making 
 the assignment is appointed: Campbell v. 
 Brown, 64r-425. 
 
 1 04. "Where an administrator is made party 
 to an action in the state in which he is 
 appointed and therein recovers judgment 
 against the opposite party, he may sue upon 
 such judgment in another state without re- 
 appointment : Qreasons v. Davis^ 9-319. 
 
 105. Action for specific performance: 
 The statutory provision (Code, § 2487) author- 
 izing action for specific performance of a 
 contract to convey real estate made by 
 decedent to be brought against the executor 
 is simply permissive. Without it, an action 
 against the executor would have been im- 
 proper, but the action may well be brought 
 
ESTATES OF DECEDENTS, III, IV. 
 
 609 
 
 Suits. — Claims ; presentation and allowance. 
 
 as formerly against the heirs alone : Judd v. 
 Mosely, 30-483. 
 
 106. It is not necessary in a proceeding 
 under this statutory provision that the heirs 
 should join in the c<invpyance in order to 
 pass a good title : Fulioider v. Peterkin, 3 G. 
 Gr., 533. 
 
 107. Administrator a proper party: As 
 an administrator has a right to resort to the 
 real property for the purpose of paying dehts, 
 he is a proper party to the proceeding to set 
 aside a sheriff's sale of such propertj" : Crate- 
 ford V. Ginn, 35-543. 
 
 lOS. An administrator is not concluded by 
 a judgment rendered in a cause to which the 
 heirs were parties, but in which he was not 
 joined: Door v. Stockdale, 19-369: Postlewait 
 V. Howes, 3-365. 
 
 109. Judgment against administrator: 
 When a judgment is against an administra- 
 tor in his representative capacity and is to be 
 finally paid from the assets of the estate, for 
 which he has already given the required se- 
 curity, the appeal bond should be light : In 
 re Pier son's Ex' rs, 13-449. 
 
 110. In an action against an administrator 
 in his representative capacity, it is error to 
 render judgment against him personally: 
 Tyler v. Langworthy, 37-555. 
 
 111. But advantage cannot be taken of 
 such error on appeal unless a motion for the 
 correction of the error has been made and 
 overruled below : Wile v. Wright, Z'i-iaX. 
 
 113. Set-off or counter-claim in action by 
 administrator: In an action by an adminis- 
 trator for money due decedent, demands 
 against the estate acquired by defendant 
 after the death of intestate cannot be pleaded 
 as a set-off: Cookv. Lovell, ll-%\; Woodward 
 V. Laverty, 14^381 ; Luaore v. Kramer, 33-387. 
 
 113. In an action by an executor to enforce 
 a claim due from defendant to decedent in 
 his life-time, defendant may set up any claim 
 existing in his favor against decedent before 
 decedent's death : Lucore v. Kramer, 33-387. 
 
 114. A person sued for funds in his hands 
 belonging to the estate cannot set up by way 
 of counter-claim a demand which he has 
 against the estate for pei-sonal services ren- 
 dered prior to the death of decedent. He 
 must file and establish his claim therefor in 
 the mode prescribed by statute: Crispin v. 
 Winkleman, 57-533. 
 
 Vol. 1—39 
 
 115. A creditor of the estate who pur^ 
 chases personal property of the estate cannot 
 have his claim against the estate deducted in 
 full from the purchase price. If the estate is 
 insolvent he must pay the full price of the 
 property and accept upon his demand a pro 
 rata share of the assets: Eldredge v. Bell, 
 64-135. 
 
 116. A claim against the estate not filed 
 within the time required may still be used as 
 a counter-claim against an action for an in- 
 debtedness due to the estate : Ware v. How- 
 ley, 68-633. 
 
 117. Counter-claim in action against ad- 
 ministrator: An executor cannot make any 
 agreement for the discharge of his individual 
 liability by the discharge of his creditor's liar 
 bility to the estate of which he is executor, 
 and he cannot set up the indebtedness to the 
 estate as a counter-claim in an action brought 
 against him individually : Gourley v. Walker, 
 69-80. 
 
 IV. Claims; presentation and al- 
 lowance. 
 
 118. Funeral expenses; wliat proper; 
 
 The purchase and erection of a tombstone is a 
 proper expenditure to be made by an exec- 
 utor as pertaining to the funeral expenses, 
 and such expenditure may be made without 
 direction by the vpill, and notwithstanding 
 the insolvency of the estate : Crapo v. Arm- 
 strong, 61-697. 
 
 1 19. The propriety of such an expenditure 
 and the amount thereof may properly be left 
 to the determination of the court having su- 
 pervision of the settlement of the estate, and 
 unless the provision made shall appear to be 
 unreasonable or excessive, such determina- 
 tion will be binding on the parties in in- 
 terest: Ibid. 
 
 120. In case of a refusal by the executor 
 to make application to the court for a pi-oper 
 and reasonable allowance for such purpose, 
 the widow or heirs may present the matter 
 to the court : Ibid. 
 
 121. Where the widow of deceased ordered 
 a monument, held, that an order of the court 
 disallowing a claim therefor was improper 
 where it did not appear that the mojiument 
 was too expensive, or not otherwise suitable, 
 
610 
 
 ESTATES OF DECEDENTS, IV. 
 
 Claims ; presentation and allowance. 
 
 and the estate was solvent: Lufz v. Gates, 
 63-518. 
 
 122. The homestead is not liable for the 
 payment of charges for the last sickness and 
 funeral expenses: Knox v. Hanlon, 48-352. 
 
 123. Support of deceased: From the oc- 
 cupancy of premises of a married son by his 
 mother, not a member of his family, the law 
 will presume that the mother is to pay 
 what the premises are reasonably worth, tin- 
 less it is expressly understood that she is to 
 have them without charge, and reasonable 
 compensation therefor may be recovered by 
 the son from the mother's estate : Harlan v. 
 Emery, 40-538. 
 
 124. Where a minor is received into the 
 family of another, and treated as a member 
 thereof, he cannot, in the absence of express 
 contract, recover compensation from the es- 
 tate of such person for services rendered 
 while a member of such family : Smith v. 
 Johnson, 45-308. 
 
 125. Where decedent had lived in the 
 family of his son as a member thereof, held, 
 that in the absence of proof of any express 
 agreement on his part to pay for his support, 
 the son had not a valid claim therefor upon 
 the estate : Traver v. Shiner, 65-57. 
 
 And see Conteacts, §§ 79-85. 
 
 126. Contract between heirs: A claim to 
 property of an estate arising under a contract 
 made between heirs subsequently to the death 
 of decedent cannot be filed as a claim against 
 the estate : Rogers v. Chillett, 56-366. 
 
 127. A claim against an administrator 
 for seizing ahd appropriating property not 
 belonging to the estate is not such a claim 
 as must be filed against the estate : Adkinson 
 V. Breeding, 56-26. 
 
 128. Attorney's fee: Under the circum- 
 stances of a particular case, held, that the at- 
 torney acting for defendant in an action 
 against an estate did so in behalf of other 
 parties interested, and that an allowance to 
 him of an attorney's fee out of the estate was 
 improper : Crane v. Guthrie, 47-543. 
 
 139. Action against heirs: For indebted- 
 ness due from decedent a claim must be filed 
 .against his estate. Action cannot be main- 
 tained thereon against the heirs direct. The 
 heir only becomes liable in case there is not 
 sufficient personal property to pay the claims, 
 in which case real property of the decedent 
 
 in the hands of the heirs may be subjected 
 to its payment : Reynolds v. May, 4 G. Gr., 383. 
 
 130. An administrator who has a claim 
 against the estate, and has had assets in his 
 hands out of which it might have been paid, 
 but has failed to take any steps to secure its 
 allowance and payment until the period pre- 
 scribed for the presentation of such claims 
 has elapsed, cannot enforce it by action 
 against the heirs : Janes v. Brown, 48-568. 
 
 131. Whether in this state an action may 
 be brought against the heir for the debt of 
 the ancestor, qucere: Ibid. 
 
 1 32. In an action to subject the land of 
 decedent in the hands of the heir to the pay- 
 ment of decedent's debts, the administrator 
 of decedent is a necessarj' party, and the 
 action cannot be prosecuted until admin- 
 istration is granted: Postlewait v. Howes, 
 8-365. 
 
 133. Action against administrator: The 
 adjudication of a claim against the estate is 
 to be deemed a part of the settlement of the 
 estate, and an action cannot be brought in 
 the district court against the administi'ator 
 of the estate on an indebtedness of decedent : 
 Tillman v. Bowman, 68-450. 
 
 134. Payment out of personal property: 
 Debts should be paid out of the personal es- 
 tate alone unless otherwise directed by the 
 will, although the will leaves the personal 
 property all to one party as a bequest: 
 McGuire v. Brown, 41-650. 
 
 135. The debts of an estate, secured and 
 unsecured, should be paid from the proceeds 
 of the personal property. The administrator 
 has no right to appropriate real estate for 
 that purpose unless absolutely necessary: 
 Boyd V. Collins, 70 -. 
 
 13G. Land conveyed hy decedent to a 
 voluntary grantee cannot be subjected to the 
 payment of expenses of administration : Wil- 
 lett V. Main, 65-675. 
 
 137. Payment of liens upon property: 
 Where a title bond was transferred by de- 
 cedent before his death to his children, and 
 the claim of the obligor of such bond for un- 
 paid purchase money was filed against the 
 estate, held, that the administrator, upon 
 payment of such claim out of the pei-sonal 
 assets, was not "entitled to an assignment of 
 the claim under the title bond, but that such 
 payment was a satisfaction of the indebted- 
 
ESTATES OF DECEDENTS, IV. 
 
 611 
 
 Claims ; presentation and allowance. 
 
 ness, and that the children to whom the title 
 bond had been assigned held the property free 
 from such indebtedness: Blackv. £Zacfc, 40-88. 
 
 138. Where the administrator had paid 
 out funds to general creditors, and was then 
 directed to make pro rata payments to a 
 party who had also a lien upon real estate 
 which had been subject to the claim of the 
 general creditors, held, that in the absence of 
 funds to make such payments, he might en- 
 force against such real estate the lien of the 
 party to whom such paj'ments were ordered 
 to be made : Black v. Black, 43-694. 
 
 139. Where the owner of property con- 
 veyed the same by warranty deed while it 
 was incumbered by mortgages to secure notes 
 given bj' him, and such incumbrances were 
 not excepted in the conveyance, and the 
 mortgagees filed their claims against the es- 
 tate after the owner's death, held, that the 
 administrator could pay such claims out of 
 any assets on hand, and the mortgagees could 
 not be required to make the amount out of 
 the mortgaged premises : Sharpless v. Gregg, 
 45-649. 
 
 140. Money furnished executor: If money 
 is furnished to an executor to pay indebted- 
 ness against an estate, the estate becomes 
 liable therefor, but it is not liable for money 
 furnished for improvements : Dunne v. Deery, 
 40-251. 
 
 141. Judgments: A judgment rendered 
 against decedent in his life-time may be en- 
 forced after his death against property upon 
 which it became a lien : Baldwin v. Tuttle, 
 33-66. 
 
 143. In such case the holder may seek 
 payment out of the personal assets by filing 
 his claim, or he may enforce it against prop- 
 erty upon which it is a lien without filing it, 
 but if he pursues the latter method, he must 
 enforce it while the lien continues or he will 
 be entirely barred: Davis v. Shawhan, 34^91. 
 
 143. A judgment rendered against de- 
 ceased in his life-time must be paid in the 
 first instance out of the personal estate, and 
 must therefore be filed and allowed as other 
 claims of the fourth class, and becomes 
 barred if not thus filed and allowed within 
 proper time. When the personal estate 
 is insufficient to satisfy it, action may be 
 brought to enforce payment by sale of real 
 estate : Bayless v. Powers, 63-601. 
 
 144. A judgment against decedent can 
 only be enforced by proceedings against the 
 estate. An action will not lie to revive the 
 judgment against the heirs: Bridgman v. 
 Miller, 50-393. 
 
 14.5. A judgment against a decedent may 
 be enforced against the property on which it 
 is a lien without being filed as a claim 
 against the estate : Boyd v. Collins, 70 . 
 
 140. Mortgages: Claims secured by mort- 
 gage may be filed and allowed as other 
 claims, but a creditor does not thereby waive 
 his right to subsequently foreclose the mort- 
 gage to enforce payment: Moores v. Ells- 
 worth, 33-299. 
 
 147. A mortgage may be enforced against 
 the property upon which it is a lien without 
 being filed as a claim against the estate: 
 Allen V. Moer, 16-307. 
 
 148. Contingent claims: The fact that a 
 contingent claim is allowed does not entitle 
 the claimant to an order of payment until the 
 right of the claimant becomes absolute: 
 Blanchard v. Conger, 81-153. 
 
 149. The statutory provision as to contin- 
 gent claims doss not apply to sureties who. 
 having paid the principal's debt, stand in the 
 place of creditors who have filed claims 
 against the estate : Braught v. Griffith, 16-26. 
 
 150. Subrogation: Where, after a claim 
 is filed against the estate of a decedent, the 
 debt is paid by a surety, such payment en- 
 titles him to be subrogated to all the rights of 
 a creditor in relation to such claim : Ibid. 
 
 151. Filing of claims: The original writ- 
 ten instrument which is a basis of the claim 
 need not be produced until the trial. The 
 filing of a copy is sufficient : Ibid. 
 
 152. The stating of a claim as provided by 
 statute is in the nature of a petition, and a 
 copy of a written instrument or an account 
 upon which it is founded should be attached : 
 Baker v. Chittucks, 4 G. Gr., 480. 
 
 153. The claim filed takes the place of a 
 petition, and is to be regarded as a statement 
 of the cause of action against the estate, and 
 must contain all the averments necessary to 
 show such cause of action : Bremer County 
 V. Curtis, 54-73. 
 
 154. All that is required in the first in- 
 stance of the claimant is to make out, verify 
 and file his claim. The administrator may 
 then approve or allow it, if he sees proper ; 
 
612 
 
 ESTATES OF DECEDENTS, IV. 
 
 Claims ; presentation and allowance. 
 
 otherwise it is deemed denied (Code, g 2410). 
 But before the court can obtain any jurisdic- 
 tion or power to decide as to the correctness 
 of the claim, notice must be served on the ad- 
 ministrator. The allowance by the adminis- 
 trator, after filing and before notice, of a 
 part of the claim, is not an adjudication as to 
 the balance, and is not binding on claimant, 
 and he may prosecute his demand as to the 
 balance : Smith v. McFadden, 56-482. 
 
 165. That the claim is not properly sworn 
 to does not render the fihng thereof void : 
 Ooodrich v. Conrad, 24-254. 
 
 156. The provision in that respect is direct- 
 ory, and the oath may be administered after 
 filing: Wilev. Wright, 33-451. 
 
 157. If the claim is filed in due time, 
 though not sworn to, it will be sufficient. 
 The omission of the oath will not render the 
 filing void : McCrary v. Deming, 38-527. 
 
 158. If the claim is such that action 
 thereon may be brought against the adminis- 
 trator in some other court, it need not be first 
 filed, etc., in the probate court : Limi County 
 V. Day, 16-158. 
 
 159. The jurisdiction of the circuit court 
 is not exclusive. After the claim is filed the 
 action may be taken to the district court by 
 consent of parties, and that court will have 
 jurisdiction : McCrary v. Deming, 38-527. 
 
 160. So under Rev., g 2395, which prohib- 
 ited the prosecution of claims for a mere 
 money demand in the district court, except 
 with the approbation of the county (probate) 
 court, held, that such provision did not de- 
 prive the district court of jurisdiction, but 
 was merely an inhibition upon plaintiff, 
 which must be taken advantage of by way of 
 defense, or it would be considered waived, 
 and the district court would have jurisdic- 
 tion by consent: Sterriit v. Robinson, 17-61; 
 Cooley V. Smith, 17-99. 
 
 161. And under the same section (which is 
 omitted in the Code) it was held that a matter 
 of equitable nature was originally cognizable 
 in the district court, without leave of the 
 county court: Waples v. Marsh, 19-381. 
 
 162. Also, heJd, that such a proceeding in 
 the district court, the approbation of the 
 county court not being shown, was properly 
 dismissed : Crane v. Malony, 39-39. 
 
 163. But where an action was brought in 
 the district court against the heirs and ad- 
 
 ministrator of decedent to foreclose a mort- 
 gage, and a judgment was rendered for the 
 amount due, held, that this was an establish- 
 ment of the claim against the administrator, 
 and that it was not necessary that such claim 
 be established in the circuit court (succeeding 
 to the county court) ; Crane v. Guthrie, 47-542. 
 
 164. Where the claim against the estate 
 grew out of a conti-act upon which the tes- 
 tator was jointly liable with another, and ac- 
 tion was brought against the survivor and the 
 executors of decedent joiptly, in the same 
 court in which the claim against the surety 
 might have been filed, held, that the bring- 
 ing of such action was a sufficient filing of 
 the claim against the estate : Moore v. McKm- 
 ley, 60-367. 
 
 165. Notice of filing: The administrator 
 or executor cannot be held to take notice of 
 the filing of a claim against the estate so as 
 to take it into account in the distribution of the 
 assets until he has been notified tliereof in 
 the manner required bj' statute (Code, § 2408 j : 
 Ashton V. Miles, 49-564. 
 
 166. Classes of claims: The filing of a 
 claim within such time as to bring it within 
 the third class of claims mentioned in Code, 
 § 2421, entitles it to precedence in payment, 
 although it is not admitted by the adminis- 
 trator or allowed by the court until after the 
 time has expired: Chandler v. Hoekett's 
 Adm'r, 13-269. 
 
 167. It is the filing of the claim within 
 such time which fixes its character as a claim 
 of the third class, and gives it precedence 
 over claims filed after the expiration of the 
 six months : Noble v. Morrey, 19-509. 
 
 1 68. Under the provisions of the Revision, 
 held, that a claim upon which action was 
 properly brought in the district court within 
 six months was entitled to be treated as a 
 claim of the third class upon the filing of the 
 judgment in the county court, although such 
 judgment was not filed for more than eight- 
 een months after administration was granted : 
 Cooley V. Smith, 17-99. 
 
 169. Limitation of time for filing: The 
 statutory provision (Code, § 2421) that claims 
 of the fourth class therein mentioned not 
 filed and approved within twelve months of 
 the giving of notice by the administrator of 
 his appointment, are barred unless the claim 
 is pending in the district court or circuit 
 
ESTATES OF DECEDENTS, IV. 
 
 613 
 
 Claims ; pi'esentation and allowance. 
 
 court, or unless peculiar circumstances en- 
 title claimant to equitable relief, refers to 
 claims sought to be enforced against the per- 
 sonal assets of decedent, but not to a claim 
 secured by mortgage upon which the cred- 
 itor relies for satisfaction : AUeyi v. Moer, 16 - 
 307. 
 
 1 70. Where action on a claim is pending 
 in the district court at the time administra- 
 tion is granted, a failure to file it as a claim 
 against the estate will not cause it to be 
 barred under this section : ODonnell v. Her- 
 mann, 43-60. 
 
 171. Where the administrator fails to give 
 notice of his appointment, the time for filing 
 claims does not run, nor does the time for 
 payment of claims become fixed: Steivart v. 
 Phenice, 65-475. 
 
 172. The limitation of such section begins 
 to run from the time of giving notice by the 
 general administrator. Notice by the special 
 administrator is not contemplated : Pickering 
 V. Weiting, 47-342. 
 
 173. The limitation does not apply to 
 claims not existing at the time of decedent's 
 death, but arising thereafter: Savery v. 
 Sypher, 39-675. 
 
 174. Where a widow's right to a share of 
 the real property of decedent was not estab- 
 lished within the twelve months following 
 the giving of notice by the administrator, 
 held, that a claim by her for rents and profits 
 on such share, filed after the expu-ation of 
 that time, was not barred : Senat v. Findley, 
 51-20. 
 
 1 75. Claims of the third class may be ap- 
 proved after the expiration of the time fixed 
 by the' foregoing statutory provision for the 
 filing and proving of claims of the fourth 
 class : Goodrich v. Conrad, 34-254 ; Smith v. 
 McFadden, 56-482. 
 
 176. Mere delay in bringing a claim of the 
 third class on for hearing will not estop the 
 claimant from proving it up where it does 
 not appear that the estate is in any manner 
 damaged or injured by the delay except that 
 during the delay the co-obligors of deceased 
 have become bankrupt : Smith v. McFadden, 
 56-483. 
 
 177. Claims of the fourth class are to be 
 both filed and a^jproved within the time lim- 
 ited. Mere filing is not sufficient to prevent 
 a claim being barred : Noble v. Morrey, 19- 
 
 509 ; Willcox v. Jackson, 51-296 ; Broimell v. 
 Williams, 54-353. 
 
 178. Equitable relief against statutory 
 bar: The mere fact of filing the claim within 
 the twelve months provided by statute, but 
 at such time that it cannot be reasonably ex- 
 pected that it can be proved within that 
 time, will not entitle a party to equitable re- 
 lief against the bar of the statute : Willcox 
 V. Jackson, 51-296; Clark v. Tollman, 68- 
 872. 
 
 179. Where it appeared that a claimant 
 was a non-resident of the state, and had no 
 notice of the death of intestate, ■ and after- 
 wards filed his claim six or eight months too 
 late, it appearing that the debt was just and 
 unpaid and that the estate was still unsettled 
 and solvent, held, that the circumstances 
 were such as to entitle claimant to relief 
 against the statutory bar: McComack v. 
 Cook, 11-2C7. 
 
 180. Where the claim was filed within 
 such time that there was reasonable ground 
 for believing that it would be passed upon 
 within the time limited, held, that if not 
 proved up in time, such cu'oumstance would 
 entitle claimant to equitable relief, if the fail- 
 ure did not result from any fault of his : Wile 
 V. Wright, 33-451. 
 
 181. Where the attorney for claimant had 
 delayed filing the claim upon the request of 
 the administrator, who promised to secure 
 settlement of the same without action, and 
 it also appeared that the estate remained un- 
 settled and that there were sufficient assets 
 to pay all indebtedness, held, that the cn- 
 cumstances were such as to entitle the claim- 
 ant to equitable relief: Brayley v. Poss, 33- 
 505. 
 
 182. As to whether a party whose claim is 
 barred is entitled to equitable relief depends 
 upon the peculiar facts of the case : Johnston 
 V. Johnston, 36-608. 
 
 183. The controlling consideration in de- 
 termining whether equitable relief should be 
 afforded in case of failure to file a claim 
 within the time provided is that the estate 
 remains unsettled : Itnd. 
 
 184. Notwithstanding an estate may be' 
 clo.sed, a creditor may establish an equitable 
 ground to have the rhatter reopened and his . 
 claim allowed. Such right to relief depends 
 upon various circumstances, such as absence 
 
614 
 
 ESTATES OF DECEDENTS, IV. 
 
 Claims ; presentation and allowance. 
 
 of inexcusable neglect upon plaintiff's part, 
 solvency of the estate, etc. ; but in a particu- 
 lar case, held, that a showing of equitable 
 grounds was not sufficient : Hazlett v. Burge, 
 23-531. 
 
 185. Where a claim was left with attor- 
 neys more than six months before the expira- 
 tion of the time for filing the same, and failure 
 to file resulted from accident or mistake on 
 the part of such attorneys, held, that there 
 was a sufficient ground for equitable relief 
 from the bar of the statute : Wilcox v. Jack- 
 son, 57-278. 
 
 180. Where the claim is filed in time to 
 have it properly allowed within the year, the 
 fact that its allowance is postponed beyond 
 the year, by a continuance granted to de- 
 fendant to enable defense to be made, will be 
 a ground of equitable relief from the bar of 
 the statute : Ingham v. Dudley, 60-16. 
 
 187. Where the holder of a claim, at the 
 request of the administrator and on promise 
 of payment, was induced to delay the filing 
 of his claim beyond the proper time, held, 
 that he would be relieved from the bar of the 
 statute : Burroughs v. MeLain, 37-189. 
 
 188. Where it appeared that a claim 
 against the estate was placed in the hands of 
 attorneys in due time for filing, and that 
 they delayed filing upon request of an attor- 
 ney who had been acting for the adminis- 
 tratrix, upon representation by him that he 
 would see the administratrix with a view to 
 an adjustment of the matter, and was then 
 filed three months before the expiration of 
 the limitation, but at such time that the 
 term of court, in which it would come up 
 for allowance, did not commence until a few 
 days after the expia-ation of the year, held, 
 that in view of the fact that the estate re- 
 mained unsettled and was solvent, a sufficient 
 excuse was shown for the slight delay, and 
 that the court erred in rejecting the claim: 
 Pettus V. Farrell. 59-296. 
 
 180. Where a creditor agreed to allow an 
 account against his decedent as a payment 
 or set-ofi against certain promissory notes in 
 his hands against the owner of said afcount, 
 and the latter, relying on the special agree- 
 ment, did not i^resent said account for probate 
 as he otherwise would have done, lield, that 
 the facts did not constitute such peculiar cir- 
 cumstances as to entitle the owner of the ac- 
 
 count to equitable relief from fraud as 
 against his failure to file the claim in time : 
 Preston v. Day, 19-127. 
 
 190. A mere pi-omise of an administrator 
 to pay a claim is not sufficient to excuse the 
 failure of the claimant to file it within the 
 time requu-ed : Colby v. King, 67-458. 
 
 191. The fact that the county judge (then 
 judge of the probate court) kept no books of 
 record in his office in which to file a claim, 
 and that a prior administrator had promised 
 to pay the claim, and that the estate was still 
 unsettled, held not sufficient to entitle the 
 claimant to equitable relief : Davis v. Shaw- 
 han, 34-91. 
 
 192. Whether the claim was originally 
 legal or equitable in its nature should make 
 but little difference, if any, in determining 
 what peculiar circumstances are sufficient to 
 excuse the delay in filing: Brewster v. 
 Kendrick, 17-479. 
 
 193. As to whether, when the peculiar cir- 
 cumstances are found sufficient to entitle a 
 party to equitable relief, his claim should, be 
 admitted to the class to wliich it would 
 equitably and properly belong, or should un- 
 der all circumstances be regarded as a fourth- 
 class claim, the court was equally divided: 
 lUd. 
 
 194-. Equitable relief will not be extended 
 to a jjarty who has been negligent in pre- 
 senting his claim: Ferrall v. Irvine, 12-53; 
 Laeey v. Loughridge, 51-629. 
 
 195. Where a claimant filed his claim but 
 failed to prosceute it and have it allowed, and 
 after eight years commenced action thereon 
 against the administrator, who in the mean- 
 time had obtained a final discharge, held, 
 that plaintiff had been negligent in prosecut- 
 ing such claim, and was not entitled to 
 equitable relief: Plielps v. Thompson, 48- 
 641. 
 
 ] 96. A party attempting to show equitable 
 circumstances to excuse failure to file his 
 claim within the time required should be 
 held to very strict proof when he comes in 
 after final settlement and seeks to interfere 
 with payments already made, or subject 
 other property to the payment of his debt. 
 The fact of final settlement, and especially 
 when made years after the grant of adminis- 
 tration, is a most controlling circumstance 
 under the statute : Shomo v. Bissell, 20-68. 
 
ESTATES OF DECEDENTS, IV. 
 
 615 
 
 Claims ; presentation and allowance. 
 
 197. Limitation need not be pleaded: 
 
 The limitation of the time for filing claims 
 against the estate need not be pleaded to be 
 made available. No denial of a claim is nec- 
 essary, and whenever it appears to the court, 
 by inspection of the claim or otherwise, that 
 it has not been filed or proved as required, it 
 is the duty of the court, independently of 
 any pleading on the part of the executor or 
 administrator, to reject it : Browuell v. Will- 
 iams, 54-353. 
 
 198. Failure of an administrator to em- 
 ploy au attorney to defend against a claim 
 on the ground that it is barred cannot con- 
 stitute fraud in itself : Trimble v. Marshall, 
 66-233. 
 
 199. Abandonment: Where a note having 
 been filed as a claim against an estate was 
 afterwards withdrawn from the files for the 
 purpose of bringing action against the surety 
 thereon, and there was no record of any dis- 
 missal of the proceedings, held, that the 
 claim was not abandoned : Braught v. Grif- 
 fith, 16-26. 
 
 200. Allowance: The administrator can- 
 not make any arrangement with the creditor 
 by which the court will be authorized to 
 order an allowance to such creditor to have 
 priority over the allowance made to the 
 widow: In re Estate of Dennis, 67-110. 
 
 201. Whether, when the administrator ad- 
 mits the correctness of a claim, the court 
 may hear further proof, queer e: Karr v. 
 Stivers, 34-123. 
 
 202. Jnry trial: Either party is, under 
 Code, § 2411, providing for trial as to the al- 
 lowance of contested claims, entitled to a 
 jury trial upon demand. If the parties 
 waive a jury, the trial may be by the court : 
 Ingham v. Dudley, 60-16. 
 
 203. Presumption: Where the probate 
 court orders a claim to be paid which has 
 been duly sworn to and filed, and it is so 
 paid, this is sufficient evidence that it was 
 admitted by the administrator with the appro- 
 bation of the court : Marlow v. Marlow, 48-639. 
 
 204. Setting aside for fraud; The allow- 
 ance by the administrator of a claim against 
 the estate is not an adjudication binding upon 
 the court when the action of such adminis- 
 trator is properly called in question, and it 
 will be set aside if fraudulent: Riordan v. 
 White, 43-432. 
 
 205. Where an administrator by fraud pro- 
 cures an allowance of a claim of his own, the 
 court should, in a pi'oper proceeding, set the 
 allowance aside, but this should not bo done 
 upon a mere exception to his report. It 
 would seem that an action should be brought 
 for that purpose : Ashton v. Miles, 49-564. 
 
 206. Settinif aside allowance made in 
 Tacalion : An allowance of a claim by an ad- 
 ministrator, and the proof thereof by the 
 clerk made in vacation, may be set aside at 
 the next term by the court : Ordway v. Phelps, 
 45-379. 
 
 207. Conclusiye: The adjudication and 
 order of the court allowing a claim and fixing 
 its character is conclusive unless corrected 
 on appeal or in some other direct proceeding : 
 Hart V. Jewett, 11-278. 
 
 208. An allowance of a claim is an adjudi- 
 cation binding upon the administrator and 
 upon creditors who may be deemed to be 
 represented by him, but it is not conclusive 
 against the grantee of decedent by a volun- 
 tary conveyance when it is sought to subject 
 the land thus conveyed to the payment of 
 sucli claim : Willett v. Malli, 65-675. 
 
 209. Not a judgment: The allowance of a 
 claim by the probate court is not a judgment 
 in such sense as to be barred in ten years, 
 under the statute of limitations. The filing 
 and allowance of a claim are in the nature of 
 the filing of a petition in an action, and the 
 action will be considered as pending until the 
 claim is paid or otherwise disposed of : Smith 
 V. Shawhan, 87-533. 
 
 210. The court should not render judg- 
 ment upon a claim filed, but simply direct 
 the payment by the administrator of the 
 amount allowed : Little v. Sinnett, 7-334. 
 
 211. Where a judgment is rendered upon 
 a claim against an estate it should be against 
 the executor or administrator as such, and 
 not in his individual capacity: Voorhies v. 
 Eubanic, 6-275, 
 
 212. Pro rata payment: Au order for 
 payment pro rata is only contemplated in the 
 event that there are not likely to be means 
 enough to pay all the debts of any one class : 
 Hart V. Jewett, 11-276. 
 
 213. Payment by ancillary administra- 
 tion: Under the ancillary administration, 
 claims filed under the principal administra- 
 tion may be proved, and if the ancillary 
 
C16 
 
 ESTATES OF DECEDENTS, IV, V. 
 
 Claims. — Sales of real property. 
 
 estate is solvent the administrator may pro- 
 ceed to pay the claims against that estate in 
 full, unless it is made to appear that the prin- 
 cipal estate is insolvent: Miner v. Austin, 
 45-221. 
 
 214. Until it is shown that the principal 
 estate is insolvent the ancillary administrator 
 should proceed with the payment of the 
 claims properly filed before him and the set- 
 tlement of his affairs without reference to the 
 principal estate : Ashton v. Miles, 49-564. 
 
 215. The allowance of a claim before a for- 
 eign administrator is not binding on an ad- 
 ministrator appointed in this state. There is 
 no privity between such administrators, and 
 the allowance of the claim in the foreign 
 jurisdiction is not evidence as against the ad- 
 ministrator here: Creswell v. Slack, 68-110. 
 
 216. Appeals: Where a claim has been al- 
 lowed in favor of an administrator of an es- 
 tate against the estate, the heirs interested 
 may apply for and prosecute an appeal from 
 such action in their own name, even though 
 such appeal might have been prosecuted in 
 the name of the administrator temporarily 
 appointed to defend against the claim : Bums 
 V. Keas, 20-16. 
 
 217. Under a statute requiring that ap- 
 peals from the allowance of claims must be 
 allowed by the court within one year from 
 the action complained of, Iield, that where 
 it appeared that a party applied for the ap- 
 peal within the year, and was without fault 
 either in making application or prosecuting 
 the same, he was not to be defeated in his 
 right to appeal although the order allowing 
 the appeal was not made untU. after the ex- 
 piration of the year : Ibid. 
 
 Y. Sales of eeal peopeety by ex- 
 
 ECUTOE OE ADMINISTEATOE. 
 
 218. By executor: Where the provisions 
 of a will required the sale of real property 
 upon the marriage of the widow without ref- 
 erence to the condition of the assets of the 
 estate, held, that it was of no importance 
 whether the executor made a proper showing 
 of indebtedness, or whether he acted in good 
 or bad faith in the management of the estate, 
 as far as the validity of the sale was con- 
 cerned: Urban V. Hopkins, 17-105. 
 
 219. Applicatiou for leave to sell: The 
 statutory provision (Code, § 2388) that appli- 
 
 cation for leave to sell real estate can be 
 made only after a full statement of all the 
 claims against the estate and rendering a full 
 account of the disposition made of the per- 
 sonal estate does not imply that the claims 
 must have been already proven : Little v. 
 Sinnett, 7-324. 
 
 220. The fact that the petition does not 
 state all the claims against the estate will 
 not render the proceedings void: Myers v. 
 Davis, 47-325. 
 
 221. Allegations in a petition that no per- 
 sonal estate had come into the hands of the 
 administrator, and that there were debts re- 
 maining unpaid, held sufficient to sustain 
 the jurisdiction- of the court in ordering a 
 sale: Stanley v. Noble, 59-666. 
 
 222. In the absence of a contrary show- 
 ing, it will be presumed, in the case of a sale 
 of the whole, that such sale was ordered for 
 good reason : Covrins v. Tool, 36-82, 86. 
 
 223. Where the records show that claims 
 were filed against the estate, proceedings for 
 sale of property will be upheld against col- 
 lateral attack, although it does not appear 
 that such claims were ever paid: Lees v. 
 Wetmore, 58-170. 
 
 224. Sale of real estate cannot be ordered 
 upon the application of a special adminis- 
 trator: Long V. Burnett, 13-28. 
 
 225. The fact that the personal property is 
 insufficient to pay the debts, by reason of the 
 misapplication thereof by the administrator, 
 will not be a gi-ound of objection to the ap- 
 plication for leave to sell: Conger v. Cook, 
 56-117. 
 
 226. The adjudication of the court, in an 
 order for the sale of real property by the ad- 
 ministrator, to the effect that such sale is nec- 
 essary, is to be deemed sufficient as to that 
 fact : Little v. Sinnett, 7-334. 
 
 227. Defects in the application wiU not de- 
 feat the jurisdiction of the court, and the 
 validity of proceedings thereunder cannot be 
 attacked collaterally : Read v. Howe, 39-553. 
 
 228. Time for application: The applica- 
 tion will not be sustained if not made within 
 the time limited for the filing and allowance of 
 claims against the estate unless the peculiar 
 circumstances of the case are of such a char- 
 acter as to make it the duty of a court of 
 equity to depart from this general rule, and 
 under such circumstances the appUcation 
 
ESTATES OF DECEDENTS, V. 
 
 617 
 
 Sales of real property by executor or administrator. 
 
 must be made within a reasonable time; 
 McOrary v. Tasker, 41-255 ; Creswell v. Slack, 
 68-110. 
 
 229. Where an application to sell real 
 estate was made more than fifteen years 
 after administration was granted, held, that 
 this long delay required the plaintiff to estab- 
 lish circumstances excusing the delay : Wil- 
 son V. Stanton, 58-404. 
 
 230. In a particular case, held, that the 
 circumstances were not such as to authorize 
 an order for the sale on an application made 
 after the time for filing claims had expired : 
 Hadley v. Gregory, 57-157. 
 
 231. Matters excusing a delay in filing the 
 application for leave to sell real estate until 
 after the time for filing claims may be set up 
 in the petition making application for leave 
 to sell, and proved: Conger v. Cook, 56-117. 
 
 232. A judgment ordering a sale cannot 
 be collaterally attacked, although rendered 
 after the time for filing claims has expired : 
 Stanley v. Noble, 59-666. 
 
 233. Notice of application: The proceed- 
 ing upon application of an administrator to 
 sell real property is adversary and not in rem 
 merely, and the absence of the notice of such 
 application required by statute, renders the 
 proceeding absolutely void : Good v. Norley, 
 28-188; Boyleav. Boyles, 37-592. 
 
 234. Where a sale of real property of de- 
 ceased was made by his heirs, and soon after- 
 ward application to sell such property was 
 made by the administrator, of which no no- 
 tice was given to the purchaser from the 
 heirs, held, that such purchaser was bound to 
 know that his vendors took as heirs, and to 
 inquire whether there had been any adminis- 
 tration on the property, and was bound with- 
 out other notice of the proceedings : Dolton 
 V. Nelson, 3 Dillon, 469. 
 
 23.5. The fact that the service of notice is 
 defective will not render the judgment void : 
 Meyers v. Davis, 47-325. 
 
 230. A recital in the record that notice has 
 been served is prima faoie evidence of that 
 fact : Little v. Sinnett, 7-324. " 
 
 237. Jurisdiction to order sale: The pe- 
 tition and notice confer jurisdiction to make 
 an order of sale, and if ,the court determines 
 that they are sufficient, any error therein 
 must be raised by appeal and not collaterally : 
 Read v. Howe, 39-558 ; Hilton v. Budgett, 43- 
 
 684; Lees v. Wetmore, 58-170; Stanley v. 
 Noble, 59-666. 
 
 238. If the judgment of the court ordering 
 the sale shows that there was notice, and 
 that the sufficiency thereof was determined, 
 the jiroceedings cannot be regarded as void 
 for want of jurisdiction on account of irreg- 
 ularities appearing in the record which af- 
 fect the sufficiency of the service : Tharp v. 
 Brenneman, 41-251. 
 
 239. The question as to what must appear 
 in order to give the court jurisdiction to order 
 a sale, and as to the presumption in favor 
 of jurisdiction, discussed at length : Morrow 
 V. Weed, 4-77. 
 
 240. Before the power to order a sale of 
 real estate to pay debts can arise, a petition, 
 as the law directs, must be presented by a 
 legal administrator : Long v. Burnett, 13-28. 
 
 241. When such petition is presented, ju- 
 risdiction over that subject is acquired, and 
 the subsequent proceedings, although those 
 of a court of inferior and limited jurisdiction, 
 will be presumed as regular and conclusive 
 as those of courts of general jurisdiction, and 
 cannot be collaterally attacked : Ibid. 
 
 242. Service by publication: A party 
 served by publication only may, in the man- 
 ner provided by Code, § 2877, have an order 
 of sale which is made in pursuance of such 
 application and notice set aside: Huston v. 
 Huston, 29-347. 
 
 243. Service upon minor: In case of pro- 
 ceedings to sell real property upon applica- 
 tion of an administrator, where notice is 
 properly served upon a minor and his guard- 
 ian, it is not essential to the jurisdiction of 
 the court to order a sale that there be a 
 formal defense interposed on behalf of the 
 minor, at least where it appears that the 
 order of sale was not made upon default but 
 upon a hearing of the evidence and an in- 
 vestigation of the case: Biekel v. Erskine, 
 43-213. 
 
 244. Notice of sale: Where, in a notice of 
 sale dated June 4th, the time was stated as the 
 86th of June next, held, that the date re- 
 ferred to was in the same year and not in 
 the next year : Little v. Sinnett, 7-324. 
 
 245. Where a town was named as the 
 place of sale, but no particular place therein 
 specified, held, that without a showing that 
 a mistake occurred, or that an unusual or 
 
618 
 
 ESTATES OF DECEDENTS, V. 
 
 Sales of real property by executor or administrator. 
 
 improper place was adopted for the sale, the 
 defect in the notice was insufficient to render 
 the sale void : Ibid. 
 
 246. Terms of sale: An administrator has 
 no authority, in the absence of express order 
 of the court, to accept notes and mortgage in 
 part payment for real property sold, and 
 should be charged with the sum for which 
 the property was sold as money received, 
 nor can he be credited with expenses of fore- 
 closing a mortgage so taken: Richards v. 
 Adamson's Estate, 43-248. 
 
 247. Pui'chase by administrator: A pur- 
 chase of land at administrator's sale by the 
 attorney or any other agent of the adminis- 
 tration, and for his benefit, cannot be up- 
 held, and if the property has passed into the 
 possession of an innocent purchaser the ad- 
 ministrator will be accountable for its value : 
 Read v. Howe, 39-553. 
 
 248. A purchase at such sale by the ad- 
 ministrator is voidable at the election of the 
 parties interested, but valid as to others: 
 Harshman v. Slonaker, 58-467; Welch v. 
 McGrath, 59-519. 
 
 249. Setting aside sale: Under the evi- 
 dence in a particular case, held, that a claim 
 against the estate for the payment of which 
 real property of decedent had been sold, was 
 not fraudulent, and that the sale should not 
 be set aside : Trimble v. Marshall, 66-238. 
 
 250. Setting up widow's dower right: A 
 widow properly notified must set up her 
 claim to dower i.i this proceeding or be there- 
 after barred from any claim on the property 
 sold in pursuance thereof : Olmsted v. Blair, 
 45-42. 
 
 251. And where the widow appeared and 
 resisted the sale, biit it was ordered without 
 making any reservation of her dower inter- 
 est, held, that she was precluded from sub- 
 jecting the land so sold to any claim for 
 dower in a subsequent proceeding : Garvin v. 
 Hatcher, 39-685. 
 
 252. Where the administrator, for the pur- 
 pose of paying a mortgage debt, seUs the 
 property covered by the mortgage, after 
 Ijroper proceedings to which the widow is 
 made a party, the dower right of such widow 
 is thereby extinguished as fully as if the 
 property had been sold in pursuance of a 
 foreclosure of the mortgage : Mead v. Mead, 
 89-28. 
 
 253. It is only the interest of the estate in 
 the property owned by decedent and not the 
 interest vested in the widow which may be 
 subjected to the payment of debts : Mock i'. 
 Watson, 41-241. 
 
 254. Sale of equitable interest: Where 
 an administrator obtained leave to sell an 
 equitable interest of the estate in certain 
 property which was incumbered, and such 
 interest was sold, and subsequently the in- 
 cumbrance was, in an action for that pur- 
 pose, found to be void, held, that a purchaser 
 of the equitable interest did not take the legal 
 title free from such incumbrance and nothing 
 passed by the sale : Crane v. Guthrie, 47-543. 
 
 255. Subject to lien : Where an adminis- 
 trator sells land which is subject to liens, the 
 liens remain upon the land and do not attach 
 to the fund in the hands of the administrator : 
 Sullivan v. Leckie, 60-326. 
 
 256. Cave.it emptor ; covenants: The rule 
 caveat emptor applies to a judicial sale of 
 land by order of court on an application of 
 an administrator unless there is fraud, and 
 the estate will not be bound by covenants of 
 warranty inserted in the deed by the admin- 
 istrator : Hale v. Marquette, 69-876. 
 
 257. Presnmptions in favor of sale: 
 Where it did not appear of record that there 
 was any publication, notice, sale, etc., as 
 required, held, that a deed purporting to be 
 made as a result of such proceeding was 
 invalid : Thornton v. Mulquinne, 13-549. 
 
 258. Where the court has jurisdiction of 
 the matter its action in ordering and con- 
 firming the sale cannot be impeached by 
 showing that the requirements of the statute 
 in regard to appraisement or sale were not 
 complied with as to matters of form ; Cowins 
 V. Tool, 36-82. 
 
 259. Where an order of sale is made in a 
 proper proceeding after due notice, and the 
 deed is approved, an error in the proceedings 
 can be corrected only upon appeal and not 
 by collateral attack : Button v. Laws, 55-710. 
 
 260. Limitation of action ; attack : The 
 statutory provision (Code, g 3401) limiting an 
 action for the recovery of real estate sold by 
 an executor, brought by any person claiming 
 under the deceased, to five years from the 
 time of sale, does not apply to a case where 
 the proceedings of the court granting leave 
 to sell were absolutely void for want of 
 
ESTATES OF DECEDENTS, VI, a. 
 
 619 
 
 Distribution. — Personal property. 
 
 notice or other cause : Cfood v. Norley, 38-188 ; 
 Bdyles Vi Boyles, 37-593. 
 
 261. This statutory provision does not bar 
 an action to set aside the sale on the gi-ound 
 of fraud within five years after the discovery 
 of such fraud : Cowin v. Toole, 31-513. 
 
 YI. DisTEiBUTioN ; widow's shaee; 
 
 DESCENT. 
 
 a. Distribution of jyersonal froperty. 
 
 262. The estate of a deceased person may 
 consist of both i real and personal property, 
 and the final distribution of the estate re- 
 lates to the one as well as to the other : Rogers 
 V. Gillett, 56-26&. 
 
 263. Eight to share vests, when: The 
 right to a distributive share of personal 
 property vests in the persons entitled thereto, 
 whether widow or next of kin, iilstanter, 
 upon the death of the intestate, and not from 
 the time of the actual distribution. Upon 
 the death of the distributee before distribu- 
 tion is made, his share goes to his legal rep- 
 resentative or legatee : Moore v. Oordon, 24- 
 15S. 
 
 264. Alien: Under statutes prohibiting an 
 alien from inheriting real estate, held, that 
 he might nevertheless take a distributive 
 share in personal property: Oreenheld v. 
 Morrison, 31-538. 
 
 265. A contract between the surviving 
 husband and the heirs of the wife's estate as 
 to distribution of the assets thereof, con- 
 strued, and held that any claim of the hus- 
 band for deficiencies in property taken by 
 liim in lieu of his distributive share should 
 be paid pro rata with the claims of the 
 heirs: Sloan v. Moffatt. 41-371. 
 
 266. Orderas to distribution: Where the 
 administrator of an estate reported to the 
 court that one of the children of decedent was 
 supposed to be dead, giving reasons therefor, 
 and subsequently asked that the money in 
 his hands, a portion of which would have 
 been the share of such cliild if alive, might 
 be ordered to be distributed among the other 
 heirs, and such distribution was made and 
 the administrator discharged, held, that there 
 was no adjudication thereby as to the death 
 of such ohil d wliich would preclude his credit- 
 ors from garnishing the heirs to whom such 
 
 distribution was made, for theshai'eto which 
 their debtor would have been entitled upon 
 proof overcoming the presumption of death : 
 Crosley v. Calhoon, 45-557. 
 
 267. Payment of legacy: A legacy vests 
 in the legatee at the time of the death of the 
 testator, but it is not due or payable until 
 such time as the executors may lawfully pay 
 it. And where a legacy was given to a per- 
 son who was indebted to the testator on 
 notes, held, that the notes were not to be 
 deemed paid by the legacy at the time of the 
 testator's death, but drew interest until the 
 legacy could properly have been paid : Bowen 
 V. Evans, 70 . 
 
 268. An adYaucement is an irrevocable 
 gift made by a parent to a child in anticipa- 
 tion of such child's future share in the estate: 
 In re Estate of Lyon, 70 . 
 
 269. The rule that advancements made to 
 an heir are to be brought into hotchpot is not 
 applicable to a case where there is a will 
 under which the heir is a residuary leg- 
 atee ; the rule applies to intestate, or possibly 
 to partially intestate, estates only : Ibid. 
 
 2 70. A contract during the life of decedent, 
 made by his prospective heirs in consideration 
 of present advancement of property to them, 
 by which they release all Interest in his estate, 
 should he die without making a will, and 
 agree in no case to claim anything more from 
 his estate, will be binding upon them in the 
 distribution of his estate, and cannot be 
 varied by parol evidence : Jones v. Jones, 46- 
 466. 
 
 271. In a particular case, held, that the 
 evidence established advancements to heirs 
 such as to defeat their claim to share in the 
 intestate's real property : Eamsey v. Abi'ams, 
 58-512. 
 
 272. Declarations made by the decedent to 
 the efl^ct that a conveyance to his son was 
 not made by way of advancement is com- 
 petent evidence in an action by such son 
 against the other heirs of decedent to recover 
 his interest in the estate : Middleton v. Mid- 
 dleton, 31-151. 
 
 Further as lo advancements, see Convey- 
 ances, §g 130-182 ; and Gifts, § 7. 
 
 273. Ctifts: Property claimed by an heir as 
 having been given to him by the decedent, 
 his father, while he was a minor living with 
 liis father, in compensation for services ren- 
 
C20 
 
 ESTATES OF DECEDENTS, VI, b. 
 
 Shaxe of widow in personal property. 
 
 derod, cannot be held by such heir as against 
 the creditors of the estate: Madison v. 
 Shockleij, 41-451. 
 
 Further as to GIFTS, see that title. 
 
 271. Rights of heirs in the ahsence of ad- 
 ministration: Where the period fixed for 
 granting letters of administration has not ex- 
 pired, no action can be maintained by the 
 heii's of deceased upon a promissory note, the 
 property of decedent at the time of his death : 
 Haynes v. Harris, 33-516 ; Baird v. Brooks, 
 65-40. 
 
 275. Where the statutory period for the 
 granting of letters of administration has ex- 
 pired without the appointment of an admin- 
 istrator, and it appears tha^t there are no 
 debts agaiDst the estate, the title to per- 
 sonal property vests in the heirs jointly, 
 and in such case an action by the heirs upon 
 a promissory note belonging to decedent may 
 be maintained: Phinny v. Warren, 53-332. 
 
 b. Share of widow in personal 
 property. 
 
 Allowance to ividow: As to the allowance 
 which may be made for the support of the 
 widow and children, see supra, II, b. 
 
 276. Exempt property: Under the statu- 
 tory provision <Code, § 2371) that all personal 
 property which was exempt in the hands of 
 the deceased husband as head of the family 
 shall be set apart to the widow in her own 
 right and remain exempt in her iands, held, 
 that a failure to inventory and appraise the 
 pei-sonal property thus to be set apart to the 
 widow, as required by statute, will not defeat 
 her absolute ownership thereof, nor its ex- 
 emption in her hands : AdHnson v. Breeding, 
 56-26. 
 
 277. As to who is to be deemed head of a 
 family in such sense that upon his. decease 
 his widow may claim property as exempt, 
 see Linton v. Crosby, 56-386. 
 
 Also on this point, see Executions, §§ 153- 
 157. 
 
 278. It is doubtful whether the husband 
 can by will deprive his widow of personal 
 property which in his hands has been exempt 
 from execution : Linton v. Crosby, 61-293. 
 
 279. It is not provided by statute that the 
 property of the wife, exempt in her hands, 
 ejiall upon her death vest in the husband. 
 
 The statute making provisions as to the 
 widow of deceased husband applicable to the 
 husband of a deceased wife apphes only to 
 provisions relating exclusively to real estate. 
 The personal property of the wife at her 
 death goes into the hands of her adminis- 
 trator for distribution: Wilson v. Breeding. 
 50-629. 
 
 280. Under a former statute, which did 
 not give the exempt property absolutely to 
 the widow, but provided that it shOuM re- 
 main in her possession until disposed of as 
 provided by law, it was held that she could 
 not sell such property and receive the pro- 
 ceeds for her own use : Meyer v. Meyer, 23- 
 359, 377. 
 
 281. Also, held, that when such property 
 was no longer needed by the widow it did 
 not become liable to administration or to be 
 taken to pay debts, but was to be distributed 
 according to law: Ellsworth v. Ellsworth, 
 33-164 ; Paup v. Sylvester, 22-371. 
 
 282. Uistributive share: The widow's 
 distributive share of personal property under 
 Code, g 2436, which provides that personal 
 property of the deceased not necessary for 
 the payment of debts, nor otherwise disposed 
 of as provided by statute, shall be distrib- 
 uted to the same persons and in the same 
 proportion as though it were real estate, can- 
 not be affected by wiU. (Overruling In re 
 Estate of Davis, 36-34): Ward v. Wolf, 56- 
 465 ; Linton v. Crosby, 61-293 ; In re Estate 
 of Lyon, 70 . 
 
 283. The fact that a widow entitled to a 
 share of personal property, notwithstanding 
 the will of her husband making other dispo- 
 sition of it, made no claim thereto until the 
 executor had paid out a large portion of the 
 personal estate in legacies, held not to estop 
 her from afterward insisting on her distribu- 
 tive share in opposition to the will : Linton v. 
 Crosby, 61-293 ; Linton v. Crosby, 61-401. 
 
 284. In case there is no will and decedent 
 leaves no children, the wife becomes entitled 
 to one-half of his personal property the same 
 as in case of real estate : Lodds v. Dodds, 23- 
 306. 
 
 285. The persons who are entitled to a dis- 
 tributive share of the personal property, and 
 their proportions, are governed by the rule 
 applicable to real estate, but the character of 
 the title or interest is not so governed. There- 
 
ESTATES OF DECEDENTS, VI, c. 
 
 621 
 
 Share of surviving husband or wife in real property ; dower. 
 
 fore, held, under a law which made the 
 widow's dower a life estate only, that such 
 widow would nevertheless take an absolute 
 title to her share of the personal property: 
 Moore v. Oordon, 34-158; Hale v. Hunter, 
 24-181. 
 
 286. The widow has only a distributive 
 share in the personal property of which the 
 husband dies seized. During his life-time she 
 has no inchoate rig6t in such property, and 
 he may make such distribution of it iii his 
 life-time as he sees fit : Samson v. Samson, 
 67-353. 
 
 287. In a particular case, held, that the 
 action of the court in ordering the payment 
 to the widow of a sum to apply on the 
 amount to which she might be afterward 
 found entitled as her share of the personal 
 estate, was not en-oneous in not ordering 
 payment of a larger sum or allowing interest 
 on the amount paid, the estate being still un- 
 settled: Linton V. Crosby, 61-401. 
 
 How affected by will in general, see infra, 
 §§ 341-367. 
 
 c. Share of surviving husband or wife 
 in real property ; ' dower. 
 
 288. Dower abolished: While our statute 
 expressly abolishes the estate of dower and 
 creates another estate to take its place, yet 
 the use of the word has not been dispensed 
 with, and in some of its essential character- 
 istics the intei-est of the wife under the 
 statute has the same character as the estate 
 of dower: Mock v. Watson, 41-841. 
 
 289. The widow's interest in the real prop- 
 erty of her deceased husband, designated by 
 the statute as a distributive share, is a mate- 
 rially different estate from that derived by 
 descent: Rausch v, Moore, 48-611. 
 
 290. While the statute abolishes the estate 
 of dower, and the interest in the lands of the 
 deceased husband given by law to the widow 
 is designated by other terms used in the stat- 
 ute, the profession continues to use the word 
 " dower" to designate such interest, and no 
 confusion or misunderstanding arises from 
 
 such use of the word, the profession under- 
 standing its meaning in accord with the es- 
 tate prescribed by the statute : Daugherty v. 
 Daugherty, 69-677. 
 
 291. Inchoate right; what law governs: 
 The interest of the wife in the lands of her 
 husband, so long as it is inchoate only, may 
 be enlarged, abi-idged or entirely taken away 
 by the legislature. The extent of her inter- 
 est is measured by the law in force at the 
 time of her husband's death : Lucas v. Saw- 
 yer, 17-517 ; Moore v. Kent, 87-20 ; Parker v. 
 Small, 55-733; Foley v. Kane, 53-64: Cun- 
 ningham V. Wilde, 56-369. 
 
 292. But her interest in lands previously 
 alienated by her husband, to which she has 
 not relinquished her right of dower, cannot 
 be increased by legislation subsequent to 
 such alienation : Moore v. Kent, 37-20 ; Davis 
 V. O'Ferrall, 4 G. Gr., 168; Young v. Wol- 
 cott, 1-174 ; Craven v. Winter, 38-471 ; Pierce 
 V. O'Brien, 39 Fed. Eep., 402. 
 
 293. Under the act of 1863, which repealed 
 the provisions of the statute by which dower 
 was a life estate and changed it to a fee-sim- 
 ple, held, that the dower right existing in 
 favor of the wife in pi-operty conveyed be- 
 fore the repeal of the j)rior statute was pre- 
 served : Moore v. Kent, 37-20. 
 
 294. That act did not take away the estate 
 of dower theretofore existing, but simply eji- 
 larged it : Ibid. ; Kendall v. Kendall, 43-464. 
 
 295. That statute did not change the com- 
 mon law rule previously in force, that until 
 dower right is assigned it is not subject to ex- 
 ecution or attachment in an action at law. 
 Whether this rule is changed by later statu- 
 tory provisions, quce.re: Rausch v. Moore, 
 48-611. 
 
 296. Where property of. the husband to 
 which the wife had not relinquished the right 
 of dower was sold at judicial sale, while the 
 statute did not bar her dower in property sold 
 at judicial sale, and the husband died after a 
 change of the statute, by which the dower 
 in such property was barred, held, that the 
 widow could not claim dower in the property 
 so sold : Sturdevant v. Norris, 30-65. 
 
 ' Code, § 3440. One-third in value of all the legal or equitable estates in real property, possessed by the hus- 
 band at any time during the marriage, which have not been sold on execution or any other judicial sale, and 
 to which the wife has made no relinquishment of her right, shall be set apart as her property in fee simple, it 
 she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving hus- 
 band. All provisions made in this chapter in regard to the widow of a deceased husband shall be applicable to 
 the surviving husband of a deceased wife. The estates of dower and curtesy are hereby abolished. 
 
622 
 
 ESTATES OF DECEDENTS, VI, c. 
 
 Share of surviving husband or wife in real property ; dower. 
 
 297. When vested: Upon the death of the 
 husband the interest of the wife becomes 
 vested and cannot be affected by subsequent 
 legislation : Burhe v. Barron, 8-132. 
 
 29S. Priority of lien or mortgage for 
 purchase money: Tbe widow cannot claim 
 dower in property to which her husband ac- 
 quired an equitable title by a contract to con- 
 vey as against the vendor's claim for the 
 purchase money : Barnes v. Gay, 7-36. 
 
 299. The widow's dower right is subject to 
 a mortgage for purchase money, although 
 she did not join therein to release her dower : 
 Thomas v. Hanson, 44-651. 
 
 300. In wliat property dowable: The 
 widow has no intei-est in a pre-emption right : 
 Bowers v. Keesecker, 14^301 ; Langworthy v. 
 Heeb, 46-64. 
 
 301. Where the husband acquired title to 
 public lands in trust for another, held, that 
 his widow was not entitled to dower therein : 
 Langworthy v. JEJeeb, 46-64. 
 
 302. The widow of one holding property 
 in trust has no right to dower therein. So 
 held where a person received and held a 
 patent from the government for land, which 
 he had previously conveyed, and to which he 
 thus held the legal title by arrangement 
 merely as trustee : McDaniel v. Large, 55-313. 
 
 303. A widow is endowable of lands to 
 which the husband has an equitable estate : 
 MoBeynolds v. Anderson, 69-208. 
 
 301. Where a guardian of minor heirs 
 without authority invested the money of his 
 wards in real property, causing title to the 
 same to be taken in the name of his son as 
 trustee, held, that having no power to thus 
 invest the trust funds, the ownership thereof 
 did not vest in his wards, and that he there- 
 fore had an equitable interest in such prop- 
 erty to which the dower right of his wife 
 would attach : Ibid. 
 
 305. In such case, held, that under the par- 
 ticular facts the purchaser from the trustee 
 took his title with notice of the equitable in- 
 terest of the guardian, and therefore subject 
 to the dower rights of the wife : Ibid. 
 
 306. Eelease of dower by conveyance: 
 A joint deed of husband and wife will oper- 
 ate as a release of the wife's dower interest, 
 although it contain no express relinquish- 
 ment thereof : Edwards v. Sullivan, 20-503 ; 
 Jones V. Des Moines, 43-209. 
 
 307. Under former statutory provisions, 
 held, that a conveyance not expressly releas- 
 ing dower and not acknowledged by the wife 
 would not bar her dower right: Westfall 
 V. Lee, 7-12. 
 
 308. The execution of a deed by one hold- 
 ing a power of attorney from the husband 
 and wife, in the name of the husband alone, 
 will not pass the wife's dower, nor will any 
 amount of intention aid the defective execu- 
 tion of the power: Wilkinson v. Oetty, 13- 
 157. 
 
 309. An instrument relinquishing dower 
 may be valid without being acknowledged 
 or recorded : Lake v. Gray, 30-415. 
 
 310. A wife accepting money as consider- 
 ation for a valid promise not to assert her 
 dower right as against property conveyed by 
 her husband, in the conveyance of which she 
 does not join to relinquish her dower, is 
 estopped thereby from afterwards setting up 
 any dower interest in such land, and the es- 
 toppel also operates as against her heirs : Dun- 
 lap v. Thomas, 69-858. 
 
 311. It seems that the wife may, at the 
 time of conveyance of property by the hus- 
 band, make a separate contract for the sale 
 of her inchoate right of dower therein : IMd. 
 
 312. Purchaser vrithont notice: It is no 
 defense in an action for dower that defendant 
 is a purchaser in good faith without notice : 
 Cruize v. Billmire, 69-397. 
 
 313. Nor will the fact that the parties have 
 lived sepsirately and apart from each other 
 for a long time create an estoppel as against 
 the claim of the wife for dower: Ibid. 
 
 314. Where a purchaser of land held under 
 patent from the school fund had no knowl- 
 edge of the fact that such patent was issued 
 in pursuance of a contract of purchase by an- 
 other person than the patentee, nor that any 
 one was entitled to a dower interest in the 
 land, held, that the dower right of the wife 
 of a person who took a contract for the pur- 
 chase and assigned the same without the 
 wife's joining to release her dower, could not 
 be asserted as against such innocent pur- 
 chaser. While, if the purchaser had had 
 knowledge, actual or constructive, of the 
 interest of the first purchaser from the school 
 f imd, he might have been put on inquiry as 
 to the dower interest of the wife of such pur- 
 chaser, if any he had, it cannot be considered 
 
ESTATES OF DECEDENTS, VI, c. 
 
 623 
 
 Share of surviving husband or wife in real property ; dower. 
 
 that he would be put on inquiry in regard to 
 the possible dower right of some wife of 
 whose husband he had no knowledge, actual 
 or constructive : Robinson v. Hague, 63-373. 
 
 315. Where a man against whom a de- 
 cree of divorce had previously been rendered 
 at the suit of a woman claiming to be his 
 wife, made an exchange of land with another 
 who knew the fact of such divorce and be- 
 lieved that the party against whom it was 
 rendered was therefore unmarried, and the 
 transaction of exchange was effected through 
 a son by a former marriage of the party 
 against whom the divorce was rendered, 
 such son and agent remaining silent as to the 
 fact that his mother was yet living, held, 
 that such son was estopped from claiming, 
 against the party with whom the exchange 
 of property was made, that his mother was 
 living in another state at the time that such 
 exchange was made, and that she survived 
 his father and became entitled to a dower 
 interest in such property, which descended to 
 him as her surviving heir: Williams v. Wells, 
 62-740. 
 
 316. Conveyance in trust: Where a hus- 
 band had conveyed property in trust for the 
 benefit of his wife, and upon her death to her 
 heirs, subject to a life estate in himself, held, 
 that he was entitled upon her death to one- 
 third in fee in addition to his life est,ate: 
 Conrad v. Starr, 50-470. 
 
 317. Limitations: The husband's right to 
 dower to which he has made no i-elinquish- 
 ment cannot be barred as against the pur- 
 chaser from the wife by the statute of lim- 
 itations during the life-time of the wife: 
 Hurleman v. Hazlett, 55-356. 
 
 And further as to limitation of action to 
 recover dower, see infra, §§ 387-389. 
 
 318. Relinquishment by wife to husband: 
 Under the statutory provision (Code, § 3303) 
 that neither husband nor wife has any inter- 
 est in the property of the other which can be 
 the subject of contract between them, held, 
 that a release of dower by the wife in a con- 
 tract with her husband with reference to a 
 separation was not vaUd : Linton v. Crosby, 
 54-478. 
 
 319. But in the absence of such statutory 
 provision it was held that a relinquishment 
 of dower in an agreement to separate would 
 be binding: Robertson v. Robertson, 35-350. 
 
 320. But aside from any agreement to 
 separate, the contingent right of dower could 
 not become the subject of valid grant or 
 conveyance between husband and wife: 
 McKee v. Reynolds, 26-578. 
 
 321. Relinquishment before marri.ige: 
 Where, previously to their marriage, a hus- 
 band and wife had executed a written con- 
 tract, by which they waived all right in each 
 other's real estate, held, that on the death of 
 the husband the wife could not claim dower : 
 Jacobs V. Jacobs, 43-600. 
 
 822. Divorce bars dower: A wife who 
 obtains a divorce from her husband there- 
 upon loses all claim to a share in his property 
 should she survive him : Marvin v. Marvin, 
 59-699 ; Boyles v. Latham, 61-174. 
 
 323. A wife cannot be allowed dower 
 where a decree of divorce obtained before 
 the death of the husband remains in force : 
 McCraney v, McCraney, 5-232, 252. 
 
 324. If the sentence of divorce is void for 
 fraud or duress, it should be declared void iu 
 toto. But until such relief is granted, not 
 only as to the portion determining the prop- 
 erty rights but as to the entire decree, dower 
 cannot be allowed : Ibid. 
 
 325. A legislative divorce, as well as one 
 granted by a court, wiU defeat the widow's 
 dower right: Levins v. Sleator, 3 G. Gr., 
 604. 
 
 32C. The mere fact that one party to the 
 marriage has remarried under such circum- 
 stances as to render him guilty of a crime 
 unless a divorce has been had will not, as to 
 the other party claiming dower and not 
 shown to have been cognizant of such acts, 
 raise a presumption of divorce : Ellis v. Ellis, 
 58-730. 
 
 327. In the absence pf record evidence of 
 a divorce it will not be presumed from the 
 mere fact of long separation of the husband 
 and wife so as to defeat the wife's right to 
 dower : Cruize v. Billmire, 69-397. 
 
 328. In an action for dower where the 
 marriage of the parties is not denied, the bur- 
 den of proof to establish a divoi-ce as termi- 
 nating the dower right is upon the party 
 denying such right : In re Estate of Edwards, 
 58-431. 
 
 32J). Adultery : The statute of Westmins- 
 ter 3, 13 Edward I, ch. 34, which makes an 
 adulterous elopement a bar to dower, never 
 
62i 
 
 ESTATES OF DECEDENTS, VI, c. 
 
 Share of surviving husband or wife in real property ; dower. 
 
 having been adopted in Iowa, is not a part of 
 the law of the state. Its provisions are in- 
 consistent with the legislation of the state on 
 the subject of dower, and the mode in which 
 such right may be barred or relinquished, 
 and also with the statutory provisions in re- 
 spect to divorce on the gi'ound of adultery : 
 Smith V. Woodward, 4 Dillon, 584. 
 
 330. Foreclosure as a bur: If a mortgage 
 against the husband in which the wife did 
 not join is not foreclosed before the death of 
 the husband, the foreclosure thereof will not 
 bar dower unless her dower right is put in 
 issue therein, even though the wife is made 
 party to the foreclosure: Moomey v. Maas, 
 23-380. 
 
 331. But a foreclosure after the husband's 
 death of a mortgage in which the wife has 
 joined with the husband will bar her dower : 
 IMd. ; Mead v. Mead, 39-28. 
 
 332. And a sale of the property by her 
 husband's administrator in pursuance of 
 proper proceedings to which she is a party, 
 for the purpose of paying a mortgage thereon 
 in which she joined, will equally defeat her 
 dower right : Mead v. Mead, 39-28. 
 
 333. Sale by administrator: A widow 
 who is notified and made a proper party to 
 proceedings by an administrator to sell real 
 property of her deceased husband for pay- 
 ment of his debts, and does not set up dower 
 right in the land in such proceeding, cannot 
 afterwards claim any dower interest therein : 
 Oarvin v. Hatcher, 39-685 ; Olmsted v. Blair, 
 45-43. 
 
 334. Judgment against husband: Where 
 the wife's interest in property has once 
 attached, and the question is as to whether it 
 has been divested or otherwise affected, a 
 party seeking affirmative relief on the theory 
 that it has, should make her a party to the 
 action brought to determine such question. 
 But where a verdict or decree against the 
 husband shows that he never had any inter- 
 est in which the wife could have dower or a 
 distributive share, the wife is bound thereby, 
 although not made a party : Lea v. IVoods, 
 67-304. 
 
 335. The fact that the husband has held 
 the legal title to the property is only prima 
 fa(de evidence that he had an interest in 
 which his wife is dowable, and the wife may 
 be bound by an adjudication against him to 
 
 which he is not a party, determining that he 
 never had such interest : Ibid. 
 
 336. Judicial sale: Prior to the enactment 
 of Code of '51, there had not been, either in 
 the state or territory of Iowa, any limitation 
 of the common law rule as to the wife's 
 dower interest in the real property of her 
 husband, and up to that time the dower 
 right of a wife could not be extinguished 
 by a sale under execution against the hus- 
 band : Pense v. Hixon, 8-402. 
 
 337. Under the present statutory provision 
 (Code, § 2440), by which the wife's dower 
 right is barred by judicial sale of the prop- 
 erty of the husband, held, that where the 
 husband purchased property subject to a 
 mortgage which he agreed to pay, and which 
 the property was during his life-time sold to 
 satisfy, his widow's dower right was barred : 
 Kemerer v. Bournes, 53-173. 
 
 338. Under the provisions of Code of '51, 
 authorizing a short foreclosure of mortgages 
 by notice and sale, held, that such a proceed- 
 ing was a judicial sale in such sense as to bar 
 the widow's dower right: Sturdevant v. Nor- 
 ris, 30-65. 
 
 339. A sale of real property by an assignee 
 under an assignment for benefit of creditors 
 is a judicial sale within such statutory pro- 
 vision, and bars any contingent right of 
 dower in the property: Stidger v. Evans, 
 64-91. 
 
 340. A sale by an assignee in bankruptcy 
 is a judicial sale in such. sense as to defeat the 
 widow's dower right under the same statutory 
 provision : Taylor v, Highberger, 65-134. 
 
 341. How barred bywill: The statutory 
 provision (Code, § 3453) that the widow's share 
 cannot be affected by any wiU of her husband 
 without her consent entered of record within 
 six months after notice to her of the provis- 
 ions of the wUl,. applies as well to a will exe- 
 cuted before marriage as to one executed 
 after that time : Ward v. Wolf, 56-465. 
 
 That this statutory provision applies also to 
 the provisions of a will with reference to per- 
 sonal property, see supra, §§ 383-287. 
 
 342. Tlie widow's consent must be made of 
 record within the six months. She will not 
 be bound or estopped by a writing not so 
 made of record: Baldozierv. Haynes, 57-683. 
 
 343. The heirs have no right to rely upon 
 such an agreement : Ibid. 
 
ESTATES OF DECEDENTS, VI, c. 
 
 625 
 
 Share of surviving husband or wife in real property ; dower. 
 
 344. It is not proper for the court, upon 
 proof that the surviving husband or wife had 
 knowledge of the wUl from the first, and 
 that it was in accordance with the wish of 
 such survivor, to enter an order, making of 
 record the fact of consent, more than six 
 months after the death of the party whose 
 consent is thus established, to take under the 
 wUl. Consent alone, without entry of that 
 fact of record within six months after notice 
 of the provisions of the will, does not defeat 
 the party's rights: Houston v. Lane, 63-291. 
 
 345. The fact that the widow, without 
 objection, aUo ws the executor to pay out upon 
 legacies such amounts as not to leave enough 
 remaining in his hands to pay her distributive 
 share of the personal property, will not estop 
 her from claiming such distributive share 
 against the provisions of the will which she 
 has accepted : Linton v. Crosby, 61-401. 
 
 346. The statutory provision just referred 
 to applies equally to the husband's rights 
 under the will of the wife as to the widow's 
 right under the will of her husband : Shields 
 V. Keys, 24-398. 
 
 347. Under previous statutory provisions 
 which required objection by the surviving 
 husband or wife to prevent the dower inter- 
 est being barred by other provisions made in 
 the will, held, that as the will passed the title 
 of the property devised to the devisee, sub- 
 ject to be divested by the objection of the 
 husband or wife, if such party did not object, 
 he acquired no interest to which the lien of 
 a judgment creditor could attach, and the 
 creditor could not in equity control the elec- 
 tion of the surviving husband or wife with 
 reference to abiding by or objecting to the 
 will: Ibid. 
 
 348. Under such statutory provision, held, 
 that silence and failure to perform an act 
 of reliaquishment authorized the conclusion 
 that the survivor accepted the provisions of 
 the will, and a subsequent will made by such 
 survivor could not act as a relinquishment of. 
 such provisions : Kyne v. Kyne. 48-81. 
 
 349. Election to accept under will: The 
 election, when once made, fixes the widow's 
 relation to the estate, and such relation can- 
 not be afterwards changed : Ashloch v. Ash- 
 lock, 53-319. 
 
 350. But where the consent to the will 
 was given in pursuance of an agreement 
 
 Vol. 1—40 
 
 whereby the heirs were to give her in addi- 
 tion certain other property, which agreement 
 was not concurred in by all the heirs as con- 
 templated, held, that she might withdraw 
 her consent : Richart v. Richart, 80-465. 
 
 351. The acceptance of the provisions of 
 the will does not bar a widow's right to 
 dower where such proyisions are not incon- 
 sistent with her dower right : Potter v. Wor- 
 ley, 57-66. 
 
 852. Where there is no express declaration 
 in the will that a devise therein to the wife 
 is to be in lieu of dower, the intention is to 
 be deduced by clear and manifest implication 
 from the will, founded upon the fact that the 
 claim of dower would be inconsistent with 
 the wfil, or so repugnant to its disposition as 
 to disturb or defeat it: Oorriell v. Ham, 2- 
 552. 
 
 353. The widow may take dower notwith- 
 standing a devise to her in the will, unless 
 there be an express provision in the will to 
 the contrary, or the claim for dower be in- 
 consistent with, and wiU defeat some of the 
 provisions of, the will : Daugherty v. Daugh- 
 erty, 69-677. 
 
 354. A devise to the wife will not be con- 
 sidered as in lieu of her dower unless made 
 so by express words or necessary implication. 
 If there is any doubt she will not be put to 
 an election : Clark v. Griffith, 4-405. 
 
 355. Where there is no express declaration 
 in th^ will, barring the widow's dower, the 
 intention that the provisions of the will are 
 in lieu of dower must be adduced by clear 
 and manifest implication from the instru- 
 ment itself, founded on the fact that the 
 claim of dower would be inconsistent with 
 the wiU, or so repugnant to some of its dis- 
 positions as to defeat them : Metteer v. Wiley, 
 34-214. 
 
 356. Therefore, held, that the acceptance 
 of the provisions of a will by which all tes- 
 tator's real and personal property, not other- 
 wise disposed of, was given to the widow for 
 life, to be divided among the heirs on her 
 death, did not bar dower : Ibid. 
 
 357. Where a testator devised his entire 
 property, real and personal, to his wife dur- 
 ing her natural life, or so long as she should 
 remain unmarried, and provided fui'ther 
 that in the event of her marrying again her 
 interest should be restricted to her usual 
 
626 
 
 ESTATES OF DECEDENTS, VI, c. 
 
 Share of surviving husband or wife in real property ; dower. 
 
 dower right, held, that such provision was 
 not inconsistent with the right of the widow 
 to assert her claim of dower in property 
 conveyed by the husband before his death, 
 and to which she did not reUnquish her 
 dower right : Corriell v. Ham, 2-552. 
 
 358. The election of the widow to take 
 under a will, which gives her a life estate, 
 so long as she remains a widow, in aU tes- 
 tatoi-'s property, with provision that at her 
 death or marriage it is to be equally divided 
 between his heirs, will not defeat her right 
 of dower: Sully v. Nebergall, 30-339. 
 
 359. The acceptance by the widow of a be- 
 quest of a life estate in her husband's lands 
 does not bar her right of dower : McOuire v. 
 Brown, 41-650; Blair v. Wilson, 57-177; 
 Daughertyv. Daugherty, 69-677. 
 
 360. Therefore, held, that a bequest to the 
 widow of all testator's real property not 
 otherwise disposed of, during the period of 
 her widowhood, and in the event of her re- 
 marriage to take the course prescribed by 
 law, did not defeat her dower right, and 
 upon remarriage she might still claim such 
 interest as she would have had without the 
 will : McGuire v. Brown, 41-650. 
 
 361. A will giving the wife one-third of 
 testator's real estate, and directing the distri- 
 bution of the remainder among heirs named, 
 is not inconsistent with the widow's right to 
 dower : Watrous v. Winn, 37-72. 
 
 362. Where a wife entered into an agree- 
 ment, upon consideration to be paid, to release 
 the dower interest in certain lands of her 
 husband, and received a portion of such con- 
 sideration before his death, and afterwards 
 filed a claim against his estate for the bal- 
 ance, held, that she thereby elected to accept 
 the provisions of her husband's will based 
 upon such agreement, and could not claim 
 dower interest in the lands released : Stoddard 
 V. Cutcompt, 41-329. 
 
 363. Under certain facts, the provisions of 
 a will were held to be inconsistent with wid- 
 o-jv's dower right : Cain v. Cain, 23-81. 
 
 364. A devise of the property to the wife 
 in trust for the children and not for her own 
 beneiit is not inconsistent with her right of 
 dower: Bittgers v. Rittgers, 56-218. 
 
 365. Where the will gave to the wife cer- 
 tain real property to be held by her in trust 
 for minor children, the proceeds arising 
 
 therefrom to be appropriated for their care 
 and benefit, and each of them to have an equal 
 share on arriving at majority, other property 
 being given to the wife, held, that the pro- 
 vision as to the disposition of the property 
 left in trust for the children indicated the 
 intention that dower should not be allowed 
 out of such property, and that therefore the 
 provisions of the will must be considered as 
 in lieu of dower, and the wife having accepted 
 the provisions of the will and elected to re- 
 tain them could not claim dower: Van 
 Guilder v. Justice. 56-669. 
 
 366. Where a will gave certain specific 
 property to the widow and made distribution 
 of the entire remaining property of testator, 
 held, that the provision for the widow must 
 be considered in lieu of dower: Snyder v. 
 MUler, 67-261. 
 
 367. Under the provisions of a particular 
 will, held, that a devise to the wife must be 
 considered as in lieu of dower: Seversonv. 
 Severso7i, 68-656. 
 
 368. Conveyance to wife in lieu of dower: 
 The conveyance of property to a wife by her 
 husband held not to have been made in lieu 
 of dower so as to deprive her of her dower 
 right : Trowbridge v. Sypher, 55-352. 
 
 360. Not subject to decedent's debts: The 
 widow's dower right attaches upon the con- 
 currence of seizin of the husband and covert- 
 ure of the wife, and is not subject to the 
 debts of the husband as is the interest of an 
 heir: Moch v. Watson, 41-241; Kendall v. 
 Kendall, 42-464. 
 
 370. Distributive share in absence of is- 
 sue: But the. distributive share which may 
 thus be held free from debts is Umited to 
 one-third. The additional interest making 
 the one-half which the surviving husband or 
 wife may take as heir in the absence of issue 
 is not exempt from indebtedness of decedent: 
 Smith V. Zuckmeyer, 53-14. 
 
 371. The excess over one-third which the 
 surviving husband or wife may take, in the 
 absence of issue, is subject to other disposi- 
 tion of the property made by wiU: lUd.; 
 Clark V. Griffith, 4r405 ; Dobson v. Ddbson, 
 30-410 ; Linton v. Crosby, 54r-478. 
 
 372. The one-half interest which the sur- 
 viving husband or wife may take as heir, in 
 the absence of issue, includes the one-third 
 dower interest: Bums v. Keas, 21-257; Nieh- 
 
ESTATES OF DECEDENTS, VI, c. 
 Share of surviving husband or wife in real property ; dower. 
 
 627 
 
 olas V. Purczell, 21-365; McGuire v. Brown, 
 41-650. 
 
 373. Eecovery of dower interest by heirs: 
 
 If a widow, entitled to dower, fails to have 
 her interest defined and set apart in her life- 
 time, her heirs may recover the same after 
 her death : Potter v. Worley, 57-66. 
 
 374. Rights of creditor: The creditor of 
 a widow cannot maintain an action in equity 
 to have her share in specific land of decedent 
 set apart to enforce his claim against such 
 share : Getohell v. McGhiire, 70 . 
 
 375. Setting off dower; growing crops: 
 Where property is set off to the widow as 
 dower, growing crops thereon pass with the 
 land set off and do not become the property 
 of the executor: Ralston v. Ralston, 3 G. Gr., 
 533. 
 
 376. Assignment of inchoate right: The 
 inchoate right of dower is not subject to 
 grant or to assignment: Craven v. Winter, 
 88-471. 
 
 377. The inchoate right of dower does not 
 pass by an assignment in bankruptcy, and a 
 purchaser thereof from the assignee acquires 
 no rights upon the dower interest becoming 
 vested : Lucas v. Bennett, 42^703. 
 
 378. Kiglit of Wiiy: The widow cannot, 
 before her dower is assigned, maintain an 
 action against a railway company for the 
 value of her one-third interest in property 
 conveyed by the husband for right of way. 
 Whether the widow can claim any interest 
 in the right of way so conveyed, qitcere: 
 Tuttle V. Burlington <& M. R. R. Co., 49- 
 134. 
 
 379. Action to protect inchoate right: 
 Although during the life-time of the husband 
 the dower right is inchoate and contingent, 
 yet it possesses the elements of property and 
 may be protected from fraudulent alienation 
 through the connivance of the husband: 
 Buzick V. Buziek, 44-259. 
 
 380. Therefore, where the husband of 
 plaintiff allowed a son by a former marriage 
 to acquire a sheriff's deed upon property for 
 much less than its value, a fraudulent intent 
 on the part of such son being shown, held, 
 that the title of the son under the sheriff's 
 deed, so far as the property exceeded the 
 amount paid at the sheriif 's sale, should be 
 subject to plaintiff's contingent right of 
 dower: Ibid. 
 
 381. Where the wife voluntarily unites in 
 the conveyance of real i)roperty, and the pro- 
 ceeds are invested by the husband in other 
 property, the title of which is taken in the 
 name of a third person, the wife has no cause 
 of action for the protection of her dower right : 
 Beak v. Beck, 64^155. 
 
 382. Action to recover dower right: The 
 widow may, as against the grantee of the 
 husband, recover her dower in land in which 
 she has not relinquished dower, after she has 
 m:ide demand thereof, and may recover rents 
 and profits for the time subsequent to making 
 demand, and within six years prior to the 
 bringing of suit: O'Ferrall v. Simplot, 4-381. 
 
 383. The dower right is such an interest 
 that it may be recovered in a real action: 
 Rice V. Nelson, 87-148; Huston v. Seeley, 
 27-183, 197. 
 
 384. Increase' of value; Improvements: 
 In an action by a widow against a grantee of 
 her husband under a conveyance in which 
 she did not join to release her dower, to re- 
 cover her dower interest in the property so 
 conveyed, she can only recover her interest 
 in the property without the improvements 
 put thereon by the grantee ; and where the 
 grantee had increased the value of the prop- 
 erty by securing the location of a railway 
 depot thereon at considerable expense, held, 
 that such expense was in the nature of im- 
 provements, and should be taken into the 
 estimate in favor of the grantee to the ex- 
 tent to which it increased the value of the 
 property, not exceeding the amount actually 
 expended. (Decided under statutes prior to 
 the Code) : Fetch v. Finch, 53-563. 
 
 385. There is nothing in the present stat- 
 ute indicating an intention to change the 
 equitable rule announced in the case last above 
 cited. When an alienation is made by the 
 husband without the wife joining therein, 
 her right is to one-third of the property as 
 owned and possessed by the husband, and 
 not a right to one-third, also, in the improve- 
 ments put thereon by the labor and money 
 of one in whose property she has no right : 
 Pierce V. O'Brien, 29 Fed. Rep., 403. 
 
 386. Action in equity: Counts of equity 
 will exercise a general concurrent jurisdic- 
 tion with courts of law in the assignment of 
 dower, and the widow is not limited to the 
 method provided by statute for admeasure- 
 
628 
 
 ESTATES OF DECEDENTS, VI, c. 
 
 Share of surviving husband or wife in real property ; dower. 
 
 ment: Starry v. Starry, 31-254; Phares v. 
 Walters, 6-106. 
 
 387. Limitation: The statute of limita- 
 tions does not apply to an action in equity or 
 for the recovery of real property, to recover 
 a dower interest. The statute does not com- 
 mence to run until the heir or his assignee 
 denies the right to dower : Starry v. Starry, 
 21-254; Rice v. Nelson, 37-148; Felch v. 
 Finch, 52-563; Berry v. Furhman, 30 463. 
 
 388. The statutory limitation as to pro- 
 ceedings for the admeasurement of dower 
 applies only to proceedings in the probate 
 court and not to an action to recover dower : 
 Sully V. Nebergall, 30-330. 
 
 389. The statute of limitations does not 
 run against an unrelinquished right of dower 
 before it becomes vested by the death of the 
 husband or wife: Hurleman.v. Hazlett, 55- 
 256. 
 
 390. Unassigned dower cannot be inter- 
 posed as a defense to an action by the heirs 
 for the possession of property. Recovery of 
 possession by the heirs, however, wiU not de- 
 feat the widow's claim for dower : Cavender 
 V. Smith, 8-360. 
 
 391. Damages; rents and profits: No 
 action for damages by a widow claiming 
 dower can be maintained against a person in 
 possession of property receiving the rents and 
 profits, when such dower has not been as- 
 signed or demand therefor made : Huston v. 
 Seeley, 27-183. 
 
 392. The widow has no right to sue in re- 
 spect to the rents before dower assigned: 
 Laverty v. Woodward, 16-1. 
 
 393. Assignment of dower: Where the 
 widow's interest exists in several tracts, her 
 share may be assigned in a body. She can- 
 not be compelled to take one-third of each 
 tract : Montgomery v. Horn, 46-385 ; Jones v. 
 Jones, 47-337. 
 
 394. The court cannot compel the widow 
 to accept dower in one of several tracts con- 
 veyed by her husband in which conveyance 
 she did not join: O'Ferrallv. Simplot, 4-381. 
 
 395. Dower should be set off in specific 
 portions of real property. It is not proper to 
 determine simply the value of the dower in- 
 terest with a view to its being paid out of the 
 assets of the estate : Corriellv. Bronson, 6-471. 
 
 396. Proceedings for admeasurement: In 
 an action under the statutory provision for 
 
 setting off of dower by referees, where it ap- 
 pears that there was a notice, though it be 
 defective or the service thereof imperfect, if 
 the court determine in favor of its sufl&ciency, 
 which fact is shown by the record, the judg- 
 ment will not be held void in a collateral 
 proceeding. An error of the court as to the 
 sufficiency of notice can only be attacked on 
 appeal : Shawhan v. Loffer, 34-317. 
 
 397. The statute contemplates that there 
 shall be more than one referee appointed for 
 the assignment of the widow's dower, and 
 the decision of the referees should be the con- 
 current judgment of more than one.' And 
 where it appeared that a portion of the prop- 
 erty was examined by only one referee, held, 
 that their report would be set aside, or at 
 least would not be entitled to the same re- 
 spect or presumption in its favor as a report 
 made upon examination by all the I'eferees; 
 Jones V. Jones, 47-337. 
 
 398. Homestead: Under the statute re- 
 quiring that the widow's dower shall be so 
 set apart as to include the homestead, held, 
 that the guardian of an insane widow had 
 no authority to make an election for her to 
 have her dower interest set apart froin other 
 property than that constituting the home- 
 stead : Ratcliff v. Davis, 64-467. 
 
 399. The widow's distributive share is to 
 be set off so as to include' the homestead, or 
 the homestead may be retained for Uf e in 
 heu of such distributive share, but the dis- 
 tributive share is not to be set off in addi- 
 tion to the homestead right: Whitehead v. 
 Conklin, 48-478. 
 
 400. Where the surviving husband occu- 
 pied the homestead, which was greater in 
 value than the dower interest which he 
 might have claimed, held, that this amounted 
 to an election to hold the homestead in lieu 
 of dower : Stevens v. Stevens, 50-491. 
 
 401. Where the surviving husband or wife 
 becomes entitled to one-half the property in 
 the absence of issue, a relinquishment of the 
 dower interest by retaining the homestead 
 in lieu thereof will not operate as a relin- 
 quishment of the remaining one-sixth to 
 which the survivor is entitled as heir : Smith 
 V. Zuehmeyer, 53-14. 
 
 402. Where the widow takes her third in 
 fee out of the homestead, her share still has 
 the homestead character, and a judgment ex- 
 
ESTATES OF DECEDENTS, VI, c, d. 
 
 629 
 
 Dower. — Descent. 
 
 feting against her will not become a lien 
 thereon: Briggs v. Briggs, 45-318; Nye v. 
 WalliJcer, 46-306; Knox v. Hanlon, 48-352. 
 
 403. When a widow elects to take her 
 distributive share and has it so set off as to 
 include the homestead, she has the right to 
 have the portion of the property not included 
 in the homestead first exhausted in the pay- 
 ment of a mortgage lien upon the whole 
 premises: Wilson v. Hardesty, 48-515. 
 
 Further as to survivor's right in the home- 
 stead, see Homestead, IV. 
 
 404. Apportionment of mortgage liens: 
 The widow's share in property other than 
 the homestead should bear its proportion of 
 mortgage indebtedness to which she has 
 assented by joining in the execution of the 
 mortgage, and she can only claim, in such 
 case, her distributive share of the proceeds of 
 the property after the mortgage indebted- 
 ness has been satisfied therefrom: Trow- 
 bridge i\ Sypher, 55-353 : McOlothlen v. Hite, 
 55-393; Cottrellv. Smith, 63-181. 
 
 405. Likewise the widow's dower interest, 
 when it is not taken out of the homestead, is 
 subject to a^ro rata proportion of the taxes 
 upon the whole property : Ibid. 
 
 406. Where the portion set off to the 
 widow for dower includes the homestead, 
 such homestead is not to be subjected to the 
 payment of a mortgage covering it together 
 with other property, though the widow 
 joined in such rttortgage, until such other 
 property is exhausted : Wilson v. Hardesty, 
 48-515 ; McGlothlen v. Hite, 55-393 ; Wells v. 
 Wdls, 57-410. 
 
 407. Where mechanics' liens and taxes on 
 decedent's real property have been paid with 
 money provided from the personal estate, 
 such liens and taxes should not be deducted 
 from the widow's share of the real estate : 
 Conger v. Cook, 57-49; Linton v. Crosby, 
 61-393. 
 
 408. The widow's share in real property is 
 subject to a pro rata liability for mortgages, 
 in which she joined, upon the whole of the 
 property. In case of a homestead her share 
 therein should only be subjected to a pro rata 
 liability for the mortgages upon it alone: 
 Conger v. Cook, 57-49. 
 
 409. The widow is under no obligation to 
 pay any part of the taxes upon property in 
 which she has a dower interest, before as- 
 
 signment, and therefore in an action to re- 
 cover dower from the grantee of her husband, 
 her interest should not be held subject to the 
 refunding of any taxes paid by such grantor, 
 at least before demand made for assignment 
 of dower : Felch v. Finch, 53-563. 
 
 d. Descent. 
 
 410. Rights of heirs in general: Upon 
 the death of the ancestor his real estate de- 
 scends at once to his heirs, who may alien 
 the same, subject to its liability for the pay- 
 ment of debts. The heirs are bound to pay 
 taxes, and are entitled to possession and the 
 rents and profits, and if the administrator 
 receive them he is individually liable for 
 them to the heirs or their assignees : Laverty 
 V. Woodward, 16-1. 
 
 411 . The heirs take the property as tenants 
 in common : Peters v. Jones, 35-513. 
 
 412. The possession of the Jieirs follows 
 that of the ancestor, and the former cannot 
 maintain trespass against one who enters 
 the land and carries away logs which he has 
 purchased from the ancestor: Morgan v, 
 OorUn, 31-117. 
 
 413. Proof of heirship: Where a party 
 claims as heir, he must first establish aflSrma- 
 tively his relation with deceased, and second, 
 negatively, that no other descendant exists 
 to impede the descent to him: Anson v. 
 Stein, 6-150. 
 
 414. During the brief period elapsing be- 
 tween an injury, and death resulting there- 
 from, an injured person may take by inher- 
 itance. If a person weaker than he has been 
 involved in the same catastrophe and has lost 
 his life by the same means, the law will, in 
 the absence of proof as to such question, 
 presume that he survived the weaker indi- 
 vidual and during the interval was vested 
 with a perfect right to such property, which 
 will be disposed of accordingly (overruling 
 Sherman v. Western Stage Co., 34^515): Kel- 
 low V. Central Iowa R. Co., 68-470. 
 
 415. Inheritable estate: A conveyance 
 by a deed covenanting to stand seized to 
 uses, where the use is executed, conveys an 
 inheritable estate: Pierson v. Armstrong, 1- 
 283. 
 
 416. Realty considered personalty: 
 Where, under a will, realty is to take one 
 
630 
 
 ESTATES OF DECEDENTS, VI, d. 
 
 Descent. 
 
 direction and personalty another, it may be 
 that land directed to be sold is to be regarded 
 ,as personalty in the sense that the proceeds 
 of it when sold are to take the direction of 
 personalty, but where there is no such pro- 
 vision the party whose interest attaches to 
 the land at the death of the testator, and who 
 is not divested until he parts with it by his 
 own act, is considered as owner of the 
 realty : Hadley v. Stuart, 63-267. 
 
 417. Degrees ol relationship are to be 
 computed according to the rule of the civil 
 law (Code, § 45, If 24): Martindale v. Ken- 
 drieh, 4 G. Gr., 307. 
 
 418. Rules of depcent: 1 Under the statutory 
 provision by which the share which would 
 have gone to a deceased child passes to such 
 persons as would have taken as his hehs, had 
 he died after the descent was cast upon him, 
 who would, in the absence of issue, be his 
 parents, the widow of a deceased husband 
 cannot inherit through their child, who has 
 died before the death of the husband, prop- 
 erty of his, or which would have vested in 
 him had he lived. So held as to pi-operty of 
 a deceased husband : McMenomy v. McMen- 
 omy, 22-148; Journell v. Leighton, 49-601. 
 
 419. So held, also, as to a devise to the 
 husband before the death of the testator un- 
 der the statute providing, in such cases 
 (Code, s^ 2337], tha,t on the death of devisee be- 
 fore testator, the heirs of such devisee shall 
 inherit the share which would have come to 
 him under the will : Will of Overdieck, 50- 
 244. 
 
 420. So when a devisee dies before the 
 testator, the devise will pass to his brother, 
 but not to his widow, under the statutory 
 
 provision just referred to: Blackvian v. 
 Wadsworth, 65-80. 
 
 421. Where, at the time of decedent's 
 death, his son was already deceased, lield, 
 that the widow of such son could not claim 
 any interest in the estate by inheritance from 
 a child of herself and such deceased son, 
 said child having survived its father, but 
 having died without issue before the death 
 of its grandfather. The statute only pro- 
 vides for inheritance by the parents of the 
 estate of a child dying without issue : Leonard 
 V. Lining, 57-648. 
 
 422. If one-third of the real property of 
 decedent has been set apart to his widow as 
 dower, she is, in the absence of issue, further 
 entitled by statute to one-^'ourth of the re- 
 mainder: Ralston v. Ralston, 3 G. Gr., 535. 
 
 The additional share which the surviving 
 husband or wife may inherit, in case there 
 are no issue, over the one-third interest, is 
 subject to the debts of decedent, and cannot 
 be claimed in opposition to other disposition 
 of his property by will : See supra, %% 370- 
 372. 
 
 423. The clause of Code, § 2440, making 
 the provisions with relation to the distribu- 
 tive share of the widow in the estate of her 
 husband applicable also to the surviving hus- 
 band of a deceased wife, relates only to real 
 property, and does not entitle the surviving 
 husband to the same interest in the personal 
 property of the wife which is given to the 
 widow as to the personal property of her de- 
 ceased husband : Wilson v. Breeding, 50-629. 
 
 424. Under a previous statute providing 
 that if intestate leave no wife nor issue, the 
 whole estate should go to his father, and if 
 
 1 Code, § 2453. Subject to the rights and charges hereinbef or© contemplated, the remaining estate of whicb 
 the decedent died seized, shall, in the absence of other arrangements by -^-ill, descend in equal shares to his 
 children. 
 
 § 2454. If any one of his children be dead, the heirs of such child shall inherit his share, in accordance with 
 the rules herein prescribed, in the same manner as though the child had outlived his parents. 
 
 § 2455. If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to 
 his wife; if he leaves no wife, the portion which would have gone to her shall go to his parents. 
 
 § 2456. If one of his parents be dead, the portion which would have gone to such deceased parent shall go to 
 the surviving parent, including the portion which would have belonged to the intestate's wife, had she been 
 living. 
 
 § 2-r)7. If both parents be dead, the portion which would have fallen to their share by the above rules shall 
 be disposed of in the same manner as if they had outlived the intestate and died m the possession and owner- 
 ship of the portion thus falling to their share, and so on through ascending ancestors and their issues. 
 
 § 2458. If heirs are not thus found, the portion uuinherited shall go to the wife of the intestate, or to her 
 heirs if dead, aeoorjing to like rules; and if he has had more than one wife who either died or survived in law- 
 ful wedlock, it shall be equally divided between the one who is living and the heirs of those who are dead, or 
 between the heirs of all, if all are dead, such heirs taking by right of representation. 
 
ESTATES OF DECEDENTS, VI, d. 
 
 631 
 
 Descent. 
 
 his father was dead, the portion which would 
 have fallen to his share should be disposed of 
 in the same manner as though he had out- 
 lived intestate and died in the possession and 
 ownership of the portion thus falling to his 
 share, held, that the father being dead, the 
 mother was entitled to the- one-third share 
 which she would have had upon the death of 
 the father if he had survived the intestate 
 and died in possession of the property : 'Row- 
 land V. Rowland, 4 G. Gr., 183. 
 
 425. Under a previous statute providing 
 that where the intestate left no issue and was 
 unmarried and survived the father, his 
 mother took only a life estate in his realty, 
 held, that her grantee did not receive a fee- 
 simple title and was entitled to a rescission of 
 a contract of conveyance by her upon equi- 
 table terms, or for judgment for the differ- 
 ence in value between the estate purchased 
 and the one actually acquired: Norris v. 
 McOafflck, 31-201. 
 
 42(i. Where an owner of property died, 
 leaving neither issue, wife, nor parents liv- 
 ing, held that his step-mother, surviving him, 
 was entitled to one-sixth of his property: 
 Moore v. Weaver, 53-11. 
 
 427. Where both parents die before in- 
 testate's decease, the property is to descend 
 as tliough both had outlived the intestate 
 and died already in the possession and own- 
 ■ership of the portion falling to their respect- 
 ive shares : Bassil v. Loffer, 38-451 ; Neeley 
 V. Wise, 44-544. And see McGuire v. Brown, 
 41-650. 
 
 428. Where intestate dies without issue, 
 and his parents are both dead, it is imma- 
 terial which died first, and it is immaterial 
 whether such parents, or either of them, 
 made any disposition of their property by 
 will, other than that which would have been 
 made by law. The persons entitled to dis- 
 tributive shares in decedent's estate take 
 from him directly, and not through the 
 parent, the supposition that such parent died 
 
 in possession of the property being merely 
 for the purpose of determining the descent : 
 Lash V. Lash, 57-88. 
 
 429. Aliens: Although under prior stat- 
 utes an alien could not take any share of real 
 property, yet it was held that he might take 
 a distributive share in personal property, not- 
 withstanding it was provided that such prop- 
 erty was to be distributed to the same 
 persons as though it were real estate : Green- 
 held V. Morrison, 31-538. 
 
 430. Adopted children: An adopted child 
 inherits from his natural parents, as well as 
 from his parents by adoption. So, where a 
 father adopted his daughter's two children 
 and then died, held, that such children would 
 inherit their mother's share as well as their 
 own shares by way of adoption : Wagner v. 
 Vamer, 50-533. 
 
 431. The court does not say, even by way 
 of dictum, that foster-parents will inherit 
 from adopted children, under the rule of in- 
 heritance directing the descent of adopted 
 children to and through their natui-al par- 
 ents: Burger v. Frakes, 67-460. 
 
 432. Where, by a special act of another 
 state, the adoption of a child was authorized, 
 and it was declared that such child should 
 inherit from the adopting parents, or either 
 of them, as if she were their legitimate child, 
 held, that such adopted child did not thereby 
 become entitled to inherit property situated 
 in this state, left by the father of her adopt- 
 ing father, dying in this state after having 
 survived such adopting parents: Estate of 
 Sunderland, 60-733. 
 
 As to the method of adoption necessary to 
 enable the adopted child to inherit from the 
 adopting parent, see Parent and Child, 
 g§ 33-40. 
 
 433. Illog'itimate children: i An illegiti- 
 mate child will inherit anything coming to the 
 mother by descent, even though the mother 
 be dead before the descent is cast : McGuire 
 V. Brown, 41-650. 
 
 ■ Code, § 3465. Illegitimate children inherit from the mother, and the mother from the children. 
 
 § 2406. They shall inherit from the father whenever the paternity is proven during the life of the father, or 
 they have been recognized by him as his children, but such recognition must have been general and notorious 
 »or else in writing. 
 
 § a4G7. Under such cii'oumstanees, if the recognition of relationship has been mutual, the father may inherit 
 from his illegitimate children. 
 
 % 2,68. But in thus inheriting from an illegitimate child, the rule above established must be invei-ted so that 
 the mother and her heirs take preference of the father and his heirs, the father having the same right of in- 
 heritance in regard to an illegitimate child that the mother has in regard to one that is legitimate. 
 
632 
 
 ESTATES OF DECEDENTS, VI, d; Vll. 
 
 Descent. — Jurisdiction over executor or administrator. 
 
 434. The recognition in writing required 
 by the statute in order that the legitimate 
 child may inherit from the father need not 
 be a formal avowal executed for the purpose 
 of mating known and perpetuating the fact, 
 but any recognition in writing, as by letter 
 or otherwise, is sufficient: Crane v. Crane, 
 31-296. 
 
 435. Evidence in a particular case field 
 sufficient to show that decedent was the 
 father of illegitimate children, and that he 
 recognized them in such a general and no- 
 torious manner as to entitle them to inherit 
 from him : Blair v. Howell, 68-619. 
 
 436. A verdict for plaintiff in an action 
 for seduction in which damages are sought 
 by reason of defendant being the father of 
 plaintiff's child, such verdict not being 
 necessarily based upon the paternity of the 
 child, is not sufficient evidence of paternity 
 to entitle the child to inherit from the puta- 
 tive father: Koon v. Mallett, 68-205. 
 
 437. For the purpose of inheritance, an 
 illegitimate child, when recognized by its 
 father, stands on precisely the same footing 
 as if it were legitimate, and the birth of such 
 a child and its recognition revoke a prior will 
 in the same manner as the subsequent birth 
 of a legitimate child: Milbum v. Milbum, 
 60-411. 
 
 438. A recognition made before the adoption 
 in the Code of '51 of the statutory provision 
 above referred to will not entitle the illegiti- 
 mate child to inherit under that provision: 
 Hartinger v. Ferring, 24 Fed. Eep., 15. 
 
 Further as to illegitimate children, see 
 Paeknt and Chuj), §§29-31. 
 
 489. Escheat ;! Where proceedings were 
 brought by the attorney-general to recover 
 for the state land claimed as an escheat, held, 
 that the legislature had power to order the 
 proceedings abated and to release the inter- 
 est of the state in the property to the parties 
 claiming adversely: State ex rel. v. Tilgh- 
 man, 14r-474. 
 
 yii. jueisdiction ovee execdtoe oe 
 administkatoe ; ei 
 counting: liability. 
 
 440. Removal 
 
 administrator is 
 
 ; A party against whom an 
 prosecuting an action for 
 
 damages due to the estate has not such In- 
 terest in the estate as to be entitled to ask for 
 the removal of the administi-ator. The stat- 
 ute contemplates that the party authorized 
 to ask for such removal is one having a right 
 to a benefit from the estate which will 
 prompt him to act for the preservation of its 
 assets and the increase of its value : Chicago, 
 B. cfc g. R. Co. V. Gould, 64-343. 
 
 441. Jurisdiction over administrator; 
 A court of , equity will not review or correct 
 the acts of an administrator while adminis- 
 tration is pending in a probate court. The 
 administrator must be held accountable to 
 the court from which his letters issued, and 
 where his bond is, and no other : Hutton v. 
 Laws, 55-710. 
 
 442. Death of administrator: Where an 
 administrator dies, a new administrator 
 should be appointed in his place and an ad- 
 ministrator should be appointed over his 
 estate. The estate of the deceased adminis- 
 trator should be settled by his administrator, 
 and that of the original decedent by the new 
 administrator: Ibid. 
 
 443. Payment of funds: Under a prior 
 statutory provision relating to the powers of 
 a county judge with reference to estates, 
 heUd, that such judge had authority to re- 
 ceive money paid by an executor upon claims 
 filed and allowed against the estate, and that 
 upon such payment by the executor to the 
 county judge, the executor was discharged 
 from Uability. Also held that no written 
 order for payment need be made by the 
 county judge to authorize such payment to 
 be made to him : Doogan x\ Elliott, 43-343. 
 
 444. Fraud : An allegation that the execu- 
 tor has induced the guardian to make false 
 charges in the guardian's account, of which 
 the executor received the benefit, will not be 
 sufficient ground for setting aside such execu- 
 tor's accounts and holding him liable for 
 such fraudulent charges. His liability, if 
 Einy, will be individual and not as executor: 
 Estate of Berryhill, 61-345. 
 
 445. Report; allowance: The proper time 
 to contest the propriety of allowing items of 
 expense by the administrator is when the re- 
 port is approved, unless it is opened by proper 
 showing within three months: Ashton v. 
 Miles, 49-564. 
 
 1 Code, § 2400. If there be property remaining uninherited, it shall escheat to the state. 
 
ESTATES OF DECEDENTS, VII. 
 
 633 
 
 Accounting ; settlements. 
 
 446. Compensation: It will be presumed 
 that compensation beyond that fixed by 
 statute was for extraordinary services, in 
 the absence of a showing to the contrary: 
 Patferso7t v. Bell, 25-149. 
 
 447. Interest: Where an executor was 
 ordered to pay to the widow her distributive 
 share, and in apparent defiance of the cita- 
 tions issued by the court from time to time 
 he failed to account, held, that it was proper 
 to charge him not only with six per cent, in- 
 terest on the money due at the time of the 
 order, but with the additional sums received 
 by him after the order : Huey v. Huey, 26- 
 525. 
 
 448. Where an administrator failed to 
 properly account for notes and moneys com- 
 ing into his hands, held, that it would be 
 presumed that whUe he held the notes they 
 were drawing the highest customary interest, 
 to wit, ten per cent., and that he should be 
 charged with six per cent, interest, com- 
 pounded annually, on moneys received: 
 Lommen v. Tobiason, 53-665. 
 
 449. Settlements made by the court with 
 the executor must stand until impeached by 
 evidence of fraud or mistake. Where the 
 estate remains unsettled and the executor 
 has not been discharged, mistakes which 
 have occurred may be corrected by proper 
 action upon the final settlement : Cowins v. 
 Tool, 36-82. 
 
 450. Until the discharge of the adminis- 
 trator, a party interested is not concluded 
 by yearly settlements made in his absence 
 and without notice, even though he has 
 failed to appeal therefrom. In such case, he 
 may bring action upon the bond : Olark v. 
 Cress, 20-50. 
 
 461. There is no provision for making per- 
 sons interested parties to the settlement, nor 
 for requu-ing notice of the proceeding to be 
 given them. The final settlement and order 
 of discharge may be made in their absence 
 and without notice to them, and when so 
 made it will doubtless have the force of a 
 judgment in so far that it cannot be ques- 
 tioned in any mere collateral proceeding, but 
 like any other judgment or order it may be 
 amended or set aside entirely for any suffi- 
 cient cause upon timely and appropriate pro- 
 ceedings : Arnold v. Spates, 65-570. 
 
 452. The provisions of the statute (Code, 
 
 § 2475) as to the time within which the set- 
 tlement may be opened is not applicable to a 
 case where it is claimed that the administrar 
 tor, by fraud or mistake, has omitted to ac- 
 count for a portion of the estate : Ibid. 
 
 453. In the absence of fraud, mistake or 
 other grounds of equitable relief, a settle- 
 ment made even in the absence of persona 
 adversely interested cannot be set aside after 
 the expiration of the three months allowed 
 by statute : Patterson v. Bell, 25-149. 
 
 454. A party seeking to avail himself of 
 mistake or fraud for setting aside the settle- 
 ment after the expiration of the period speci- 
 fied by statute must allege sufiicient reasons 
 for not availing himself of those provisions 
 for opening up the settlement, and if he seeks 
 equitable relief on the ground of fraud, must 
 set forth the fraudulent acts complained of, 
 and show how he was deceived and misled 
 thereby : Kows v. Mowery, 57-20. 
 
 455. Orders of court approving progressive 
 reports must be regarded as correct, and it is 
 incumbent on the heirs attacking the reports 
 to show that they were incorrect and fraudu- 
 lent, if so claimed: In re Heath's Estate, 
 58-36. 
 
 456. Equitable relief in case of fraud or 
 mistake is not limited to the time within 
 which an application may be made to have a 
 settlement and discharge set aside: Arnold 
 V. Spates, 65-570. 
 
 457. Settlement by an administrator with 
 the probate court in which items of account 
 are allowed cannot be collaterally assailed : 
 Harlin v. Stevenson, 30-371. 
 
 458. Where a creditor has filed his claim 
 and allowed the estate to be settled up and 
 the administrator discharged, he cannot 
 afterward, in an action against such admin- 
 istrator or heirs, subject to the payment of 
 his claim property which he insists was fraud- 
 ulently conveyed by decedent in his life-time 
 to such heirs for the purpose of defeating it. 
 As he might, by proper proceedings, have 
 had such property subjected to the payment 
 of his claim during the administration, he 
 cannot, after the estate has been settled, open 
 up the settlement for that purpose. The 
 settlement and discharge of the adminis- 
 trator is an adjudication not only that he 
 has accounted for all property which came 
 into his hands, but also that the estate has 
 
634 
 
 ESTATES OF DECEDENTS, VII. 
 
 Discharge of executor or administrator ; liability. 
 
 been properly administered upon: Daniels 
 V. Smith, 58-577. 
 
 459. Discharge: The order of discharge 
 may properly be made when the adminis- 
 trator is relieved from further duty touching 
 the debts of the estate, and it has been prop- 
 erly found that he has accounted for the 
 assets of the estate that were at any time 
 under his control, although the estate is not 
 yet finally settled : Crossan v. McCrary, 37- 
 684. 
 
 460. "Where an administrator is discharged 
 by a court of competent jurisdiction, the 
 hurdeu of proof is upon the party seeking to 
 hold him liable for errors or frauds in his ac- 
 counts : Bead v. Hoive, 39-553. 
 
 461. Filial discharge: If an order of dis- 
 charge is based upon receipts of the dis- 
 tributees or their assignees, given by them 
 for amounts found due them respectively 
 upon a final accounting, and no apphcation 
 is made to set aside the discharge within the 
 time allowed, the persons receipting must be 
 deemed to have acquiesced in the onler of re- 
 ceipting and final discharge, and to be con- 
 cluded thereby: Diehl v. Miller, 56-313. 
 
 462. Siiniiiiary order for payment: In 
 summary proceedings as provided by statute 
 (Code, § 3433) to compel payment by an ex- 
 ecutor in accordance with the order of the 
 court, a petition alleging a breach of the 
 bond is not necessary: Hart v. Jewett, 17- 
 234. 
 
 483. In such a proceeding it is no de- 
 fense' that a prior order for a pro rata pay- 
 ment of the claim has not been made, but the 
 executor will only be liable to judgment for 
 such pro rata amount as claimant is entitled 
 to: Ibid. 
 
 464. In such summary proceeding, the 
 sureties cannot set up as a defense that the 
 claim which the administi'ator has failed to 
 pay was allowed by him after it was barred 
 by statute, unless fraud or collusion of the 
 administrator is relied on: Weber v. Noth, 
 51-^75. 
 
 465. Notice: Where it was objected, in 
 an action against an executor, that notice of 
 the application for an order requiring him to 
 pay over a distributive share was served on 
 him in aniather state, of which he was a resi- 
 dent, held, that in his representative capacity 
 he was subject to the jurisdiction of the court 
 
 granting administration, and such court hav- 
 ing expressly found that he was served with 
 due and legal service, it would be at least a 
 prima facie presumption that the court had 
 jurisdiction: Suey v. Huey, 36-535. 
 
 466. A non-resident administrator ap- 
 pointed by the court is, in his representative 
 capacity, subject to its jurisdiction, and the 
 service of notice issued to him in a probate 
 vproceeding relative to the estate may be 
 good, although made out of the state : Ghi- 
 cago, B. <Sb Q. R. Co. v. Gould, 64-343. 
 
 46 7. But if it should appear that procesa 
 or orders cannot be served upon him by rea- 
 son of liis absence from the state, or that 
 prejudicial delay in securing his service is 
 occasioned by such non-residence, the court 
 may remove him or requhe prompt period- 
 ical appearance in the court at sufficiently 
 brief intervals, or in other ways facilitate the 
 service of process and orders upon him: 
 Ibid. 
 
 468. Personal liability: If property not 
 belonging to the estate be wrongfully seized 
 by the administrator he is personally liable, 
 and a claim therefor need not be filed as a 
 claim against the estate : Adkinson v. Breed- 
 ing, 56-26. 
 
 As to liability of administrator de son tort, 
 see mpra, g§ 83-91. 
 
 409. Action on bond: Action against an 
 administrator for money in his hands which 
 should be paid to the distributees is to be 
 brought by the persons entitled to the money 
 and not by the administrator de bonis non: 
 Kelley v. Mann, 56-625. 
 
 470. But if claims against the estate re- 
 main unpaid, the administrator de bonis non 
 may sue for funds in the former administi'a- 
 tor's hands which should have been applied 
 to the payment of such claims: Ibid. 
 
 471. Where, by the failure of the adminis- 
 trator to give notice of his appointment, the 
 time within which claims must be filed does 
 not expire, and it does not become known 
 whether or not the assets aie sufficient to 
 pay all the claims, an action against the ad- 
 ministrator on his bond may be brought by 
 the new administrator appointed on his re- 
 moval, and the right of action is not confined 
 to creditors having claims: Stewart v. Phetir 
 ice, 65-475. 
 
 472. Where, however, all claims are paid, 
 
ESTATES OF DECEDENTS, VII — ESTOPPEL, I. 
 
 635 
 
 Liability of executor or administrator. — Estoppel by deed. 
 
 and the funds remaining in the hands of the 
 administrator are due only to the next of kin, 
 the action on the bond should be brought by 
 the persons entitled thereto, and not by a 
 new administrator : Ihid. 
 
 473. Fraud of adiiiinistrator: An allega- 
 tion that an administraljDr fraudulently pre- 
 tended that he would consent to the allow- 
 ance of a claim, and proposed to secure the 
 claimant by a conveyance of real property in 
 satisfaction thereof, which was not done, held 
 not sufficient to show fraud on the part of 
 the administrator, rendering him personally 
 liable : Hazlett v. Burge, 33-535. 
 
 474. Liability of co-executor: L. and S. 
 qualified as executors and went to the bank 
 where decedent had money deposited and 
 gave a joint receipt for the whole amount 
 and directed the bank to pass one-half of said 
 sum to the credit of each, which was done. The 
 money was never drawn from the bank and 
 neither party had any actual possession, con- 
 trol or custody of the one-half thereof trans- 
 ferred to the other's credit. S. accounted for 
 his half, but L. failed to do so. Later, an 
 account was filed by them as executors, in 
 which they charged themselves with the en- 
 tire sum. As to the liability of S. for the 
 share credited to L.'s account, the supreme 
 court were equally divided: Nettman v. 
 Schramm, 23-521. 
 
 475. Jurisdiction of action against: 
 Where an administrator by a fraudulent con- 
 cealment secures a receipt from a claimant 
 for the amount of his claim against the estate, 
 he does not thereby become necessarily lia- 
 ble in an action for the amount of such claim, 
 but the action against him must be as ad- 
 ministrator, and must be brought in a court 
 having jurisdiction of the administrator: 
 Shropshire v. Long, 68-537. 
 
 47(i. A suit against an administrator for 
 non-feasance or malfeasance may be brought 
 in the district court : Jenkins v. Shields, 36- 
 636. 
 
 477. Costs of administration should not be 
 charged up to the administrator except so 
 far as they are occasioned by a contest aris- 
 ing upon exceptions to his report: In re 
 Heath's Estate, 58-36. 
 
 47S. Misappropriation: Where it appears 
 that tlie administrator haS received money 
 belonging to the estate, and he fails to show 
 
 lawful excuse for not paying it over upon 
 the order of the court, he may be punished 
 for contempt, although he shows that he has 
 otherwise distributed the money in payment 
 of claims and demands wiiich he had no au- 
 thority to pay, and has no money of his own 
 with which he can repay the amount re- 
 quired : Wise v. Chaney, 67-73. 
 
 479. Failure to file an account within 
 one year after appointment as required by 
 statute will constitute breach of the bond for 
 which at least nominal damages can be re- 
 covered : Clark v. Cress, 20-50. 
 
 ESTOPPEL. 
 
 I. By deed. 
 
 By kecoed, see Jttd&ments, II, d. 
 11. In pais. 
 
 I. By deed. 
 
 1. Party bound by recitals: Parties claim- 
 ing under a deed are estopped from denying 
 the recitals thereof. Therefore, held, that 
 where the deed purported to be executed by 
 the grantor in an official capacity, he could 
 not deny that he was such officer: Floyd 
 County V. Morrison, 40-188. 
 
 2. Where a mortgage was executed to the 
 school fund for the purpose of being used by 
 the county treasurer in settling with the 
 county authorities and to cover up a delin- 
 quency, held, that the parties to such instru- 
 ment were estopped from contesting its 
 validity: Ibid. 
 
 3. Mortgagor cannot deny title: In a 
 proceeding to foreclose a mortgage, or con- 
 veyance in the nature of a mortgage, de- 
 fendant is estopped from denying the valid- 
 ity of the title attempted to be conveyed to 
 him by way of security : Findlay v. Kettle- 
 man, 14-173. 
 
 4. Quitclaim: One who conveys by quit- 
 claim all his title and interest in land is es- 
 topped from afterwards setting up title 
 derived through a tax lien held at that time: 
 Thomas v. Stickle, 32-71. 
 
 5. Grantee cannot deny grantor's title: 
 A party who enters into possession of prem- 
 ises under a conveyance is estopped from de- 
 nying the title of his gi-antor while he or his 
 grantee retain such possession. Therefore, 
 
636 
 
 ESTOPPEL, U. 
 
 In pais. 
 
 held, that a purchaser from the grantor with- 
 out release of dower by grantor's wife was 
 estopped in an action by the wife for her 
 dower from contesting the grantor's title: 
 Davis V. O'Ferrall, 4 G. Gr., 358. 
 
 6. A recital in a conveyance under which 
 a party claims title cannot operate by way of 
 estoppel so as to prevent him from claiming 
 under an older conveyance or a paramount 
 title : Baldivin v. Thompson, 15-504. 
 
 7. A party who seeks to have a conveyance 
 set aside as without authority, and asserts 
 title to the property in himself, cannot at the 
 same time insist upon an estoppel arising as 
 against the grantee in such conveyance from 
 the fact of having accepted title thereunder : 
 Bowers v. Keesecker, 14-301. 
 
 An after - acquired title inures to the 
 grantee under a prior conveyance : See Con- 
 veyances, §§ 209-218. 
 
 II. In pais. 
 
 8. What constitutes ; general nature of: 
 
 There can be no fixed rule of universal appli- 
 cation to determine what acts constitute an 
 estoppel in pais. It must depend in most 
 cases upon the circumstances : Ldicas v. Hart, 
 5-415. 
 
 9. Certainty: The law of estoppel is 
 founded upon an obligation which rests upon 
 every man to speak and act according to the 
 truth and the just policy of the law which 
 will not permit men to deny that which they 
 have solemnly acted upon as true. Estop- 
 pels must therefore be certain to every intent, 
 for no one shall be denied setting up the truth 
 unless it is in plain and clear contradiction to 
 his former acts and allegations : Hubbard v. 
 Hartford F. Ins. Co., 33-325. 
 
 10. Not favored: An estoppel is not fa- 
 vored in law, and must always be clearly 
 proven : Baldwin v. Lowe, 22-367. 
 
 11. Must be pleaded: Matter in estoppel 
 must be specially pleaded, or it cannot be 
 considered : Independent Dist. v. Merchants' 
 Nat. Bank, 68-343; Folsom v. Star Union, 
 etc., lAne, 54-490. 
 
 12. An estoppel must be pleaded and can- 
 not be introduced in evidence under an alle- 
 gation of contract : Phillips v. Van Schaick, 
 37-229. 
 
 13. Evidence to establish an estoppel is In- 
 
 admissible when the pleadings contain noth- 
 ing relative thereto: Ransom v. Stanberry, 
 22-334. 
 
 14. A party is not entitled to introduce 
 evidence tending to prove an estoppel, unless 
 he has specially pleaded the facts constitut- 
 ing such estoppel: Eikenherry v. Edwards, 
 67-14. 
 
 15. In an action at law upon a policy of 
 insurance, where defendant answered alleg- 
 ing a violation of conditions, and plaintiff 
 sought to show matter of estoppel as against 
 the defense interposed, the plaintiH was held 
 entitled to avoid such defense by showing 
 that defendant was estopped from asserting 
 such condition : Bartholomew v. Merchant!? 
 Ins. Co., 25-507. 
 
 16. Kepresentations must have been 
 acted upon : Acts or omissions will not oper- 
 ate as an estoppel unless the other party has 
 acted upon them, and then they will only be 
 conclusive upon the party who has so acted 
 and persons claiming under him and not in 
 favor of strangers : Lucas v. Hart, 5-415. 
 
 1 7. The doctrine of estoppel cannot apply 
 where the acts or omissions relied on as cre- 
 ating the estoppel have never been acted 
 upon by the party claiming such estoppel: 
 Morris v. Sargent, 18-90. 
 
 18. It is an essential element of an estop- 
 pel that another party has acted or changed 
 his position to his prejudice in reliance upon 
 the alleged conduct in question: Tufts v. 
 McClure, 40-317. 
 
 19. It is essential to constitute an estoppel 
 in pais that the party pleading it, and those 
 under whom he claims, should have so acted 
 with reference to the subject of the represen- 
 tations as that he would suffer injury or dam- 
 age if the one who made them were permitted 
 to deny their truth: Jamison v. Miller, 64- 
 402 ; Eikenberry v. Edwards, 67-14. 
 
 20. Therefore where, after the levy of an 
 attachment, a person claiming the property 
 made no assei'tion of his claim thereto on 
 being advised of the levy, and no further 
 steps were taken under such levy, hdd, that 
 the person claiming the property was not 
 afterwards estopped : Jamison v. Miller, 84- 
 402. 
 
 21. The request by a person whose name 
 appears to be signed as one of the makers of 
 a note that the holder thereof shall bring 
 
ESTOPPEL, n. 
 
 637 
 
 In pais. 
 
 action against other makers, and the bringing 
 of suit accordingly, will not estop such person 
 from pleading that the signature of his name 
 is a forgery : Eikeriberry v. Edwards, 67-14. 
 23, It is sufficient that an action has been 
 brought in reliance upon a party's claim, to 
 estop such party from asserting a different 
 right : Crawford v. Nolan, 70 . 
 
 23. Where one of two parties liable on a 
 note might have brought suit thereon against 
 the othei:, but the payee requested him not 
 to do so and afterward informed him that he 
 was released, lield, that the payee was thereby 
 estopped frorti enforcing the note against the 
 party thus released, the forbearance to sue 
 being a sufficient consideration for the re- 
 lease : Lyon v. Aiken, 70 . 
 
 24. Where acts or declarations have not 
 induced upon a party or caused him in any 
 manner to change his position or condition 
 they wiU not constitute an estoppel : Moore 
 V. Church, 70 . 
 
 25. A party cannot be estopped by acts 
 subsequent to the transaction as to which 
 the estoppel is sought to be established : Gee 
 V. Moss, 68-318. 
 
 26. In order to afford a basis for the just 
 appUcation of the doctrine of estoppel, it is 
 necessary that the party claiming thereunder 
 should have acted in good faith relying upon 
 the estoppel and in the behef of its truth : 
 Ellsworth V. Ellsworth, 33-164. 
 
 27. Where an administrator knowingly 
 took possession of and sold property which 
 was exempt to decedent, and therefore was 
 not subject to the payment of his debts but 
 passed to his widow, held, that the widow 
 was not estopped from setting up that fact in 
 an action against the administrator to re- 
 cover the proceeds of such sale, although she 
 knew of his taking possession of the property ; 
 she not having been aware of her legal rights 
 in the premises until after the sale : Ibid. 
 
 28. Mere advice: In a case where there 
 was no relation of trust or confidence be- 
 tween the parties, held, that the fact that one 
 party advised a course of conduct would not 
 prevent him from afterward taking advan- 
 tage thereof in his own favor as against the 
 other: Merrill v. Welsher, 50-61. 
 
 29. Opinion on matter of law: Where the 
 representation is a statement of a matter of 
 law, no estoppel ordinarily can be grounded 
 
 upon it: Cedar Rapids & M. B. B. Co. v. 
 Sac County, 46-243. 
 
 30. The mere fact that a person assumes, in 
 i-eference to a particular question, a legal 
 position of the soundness of which others 
 can take advantage as well as himself, will 
 not estop him from afterward questioning 
 the correctness of such position: District 
 Tp V. Independent Dist., 63-188. 
 
 31. Mistake of fact: Where one in honest 
 error asserts that which is not true, and does 
 so for the purpose and with the effect of in- 
 fluencing another, who in good faith trusts to 
 and acts upon such assertion, he that makes 
 the assertion is bound thereby, notwithstand- 
 ing the mistake. Therefore, held, that where 
 a party set up by way of defense in an action 
 a judgment to which he was not a party, 
 and thereby induced the dismissal of such 
 action, he was bound by his answer, although 
 the statements therein were made by mis- 
 take: Smith V. Cramer, 39-413. 
 
 32. A party's ignorance of the truth of the 
 representations will not remove the estoppel 
 if his ignorance is the result of gross negli- 
 gence. Therefore, held, that a party pur- 
 chasing land without knowing the quantity, 
 and three years afterwards making repre- 
 sentations as to such quantity, was estopped 
 from claiming that he was ignorant with re- 
 spect thereto : Sweezey v. Collins, 40-540. 
 
 33. Plaintiff's agent, for the purpose of dis- 
 charging all Hens on certain property, met 
 defendant, asked for all his claims or liens, 
 paid all presented, and was assured by de- 
 fendant that he had no others than those 
 thus presented and paid ; held, that defend- 
 ant was thereby estopped from setting up, 
 as against plaintiff's claim to the land, a title 
 derived from a tax certificate which he held 
 at the time of the settlement and failed to dis- 
 close or present for payment, and that it did 
 not matter whether plaintiff or her agent knew 
 in fact that the taxes for the year in question 
 were unpaid : Davidson v. Follett, 27-217. 
 
 34. Where a street railway company, about 
 to lay its track upon the street of a city, 
 seeks information from a gas company which 
 has already laid its pipes through such streets, 
 as to the location of such pipes, in order that 
 it may avoid laying its track directly over 
 the line of such pipes, and the gas company, 
 by mistake, gives erroneous information as 
 
638 
 
 ESTOPPEL, II. 
 
 In pals. 
 
 to the location of Its pipes, It will be estopped 
 from claiming a right to rlisturb the track of 
 the railway company, when laid, in order 
 to get access to such pipes : Davenport Cent. 
 Jt. Co. V. Davenport Gas Light Co., 43-801. 
 
 35. Mere silence: An estoppel will not be 
 created by mere silence where there is no 
 evidence that the person whose silence it is 
 claimed created the estoppel had knowledge 
 of the matter in regard to which it is claimed 
 he should have spoken : Ibid. 
 
 36. Ignorance of fraud: The acts of a 
 party, whatever they may be, will not estop 
 him to deny fraud of which he was at the 
 time ignorant when claims under such fraud 
 are attempted to be enforced by the guilty 
 party or one having notice thereof : Sinnett 
 V. Moles, 38-35. 
 
 37. Intention: An instruction to the effect 
 that, in order to create an estoppel by con- 
 duct, it must be shown that the party in- 
 tended that the opposite party should act 
 upon such conduct, Jield misleading, for the 
 reason that the acts and language of the 
 party may be a basis for inferring certain in- 
 tentions : Tiffany v. Anderson, 55-405. 
 
 38. To constitute an estoppel it is not nec- 
 essary to prove tiie truth of the statements 
 relied on. It is only necessary to show that 
 
 > the conduct of the party is such as to pre- 
 clude him from denying the truth of such 
 statements : Blahe v. Barrett, 61-79. 
 
 39. An estoppel is allowed to prevent 
 fraud and injustice, and exists whenever the 
 party cannot gainsay his own acts or asser- 
 tions. It is immaterial whether the thing ad- 
 mitted is true or false, it being the fact that 
 it was acted upon that renders it conclusive : 
 Lucas V. Hart, 5-415. 
 
 40. Every person will be conclusively pre- 
 sumed to intend to be understood according 
 to the reasonable import of his words, and 
 where a person's words are reasonably Un- 
 derstood and justly acted upon by another, 
 such person cannot be heard to aver to the 
 contrary against the other. The intention to 
 create an estoppel is not necessary : Sessions 
 V. Bice, 70 . 
 
 41. Fraudulent intent: Where a party, 
 by his conduct and declarations, induces an- 
 other to act to the prejudice of the latter, the 
 former shall be estopped to deny matters rep- 
 resented by his conduct, especially if they 
 
 are done and made with a fraudulent intent. 
 Therefore, where defendant represented that 
 an acquaintance whom he had with him was 
 his nephew and engaged in business with 
 him, and by such known false representar 
 tions created a belief in the mind of the 
 other (such representations being calculated 
 to create such belief in the mind of an ordi- 
 narily prudent person) that defendant would 
 be responsible for any money advanced to 
 such alleged relative, held, that defendant 
 was liable for money thus advanced, although 
 upon a forged order : Peeh v. Lusk, 38-93. 
 
 42. Mere failure to perforin an executory 
 agreement cannot give rise to an estoppel: 
 Starry v. Korab, 65-367. 
 
 43. An oral promise to pay the debt of 
 another, being invalid under the statute of 
 frauds, cannot constitute an estoppel : Smith 
 V. Tramel, 68-488. 
 
 44. Party inducing certain action can- 
 not complain thereof: Where defendant 
 purchased certain ground of plaintiff, enter- 
 ing into an agreement with sureties that by a 
 certain time he would put improvements 
 upon the property to an amount specified, 
 but afterwards advised defendant not to con- 
 tinue making the improvements, on the 
 ground that he would not be able to pay for 
 the property, held, that by such advice plaint- 
 iff was estopped from recovering of the sure- 
 ties for failure to make the improvements as 
 agreed: Davis v. Williams, 49-83. 
 
 45. Where a mill-owner consulted with a, 
 person who proposed to erect a mill-dam at 
 a lower point on the stream, advised such 
 person to do so, and assured him that there 
 was no danger of backing the water up to 
 his mill, and agreed to pay a proportion of the 
 expense, knowing that lai'ge expense was be- 
 ing incurred in pursuance of the undertak- 
 ing, held, that he was estopped from recover- 
 ing damages by reason of the construction of 
 such lower dam : Wilson v. Vaughn, 40-179. 
 
 46. Not objecting to sale: A person stand- 
 ing by and assisting in making a sale of real 
 property is estopped from claiming any title 
 therein as against that acquired by the 
 grantee: Jordanv. Brown, 56-381. 
 
 47. Where plaintiff, acting as agent for his 
 father, had negotiated the sale to defendant 
 of land belonging to his father, under the 
 understanding that the father, having been 
 
ESTOPPEL, II. 
 
 639 
 
 In pais. 
 
 recently divorced from his supposed wife, 
 had no wife living, and it afterwards ap- 
 peared that his former wife, the mother of 
 plaintiff, was alive at the time of sale, which 
 fact was unknown to the purchaser, held, 
 that the son would be presumed to have had 
 knowledge of the existence of his mother and 
 of her rights in the property, and that he was 
 by his conduct estopped from afterwards as- 
 serting as against the purchaser any claim to 
 the property derived through his mother: 
 Williams v. Wells. 62-740. 
 
 48. Where a party claiming, by pre-emp- 
 tion, land granted in aid of a railroad, ob- 
 tained a certificate from the county judge, as 
 provided by statute, and after payment of 
 the entrance price brought suit to compel de- 
 livery of the deed, held, under the special 
 facts presented, that the railroad's gi'antee 
 was estopped by its own negligence from con- 
 troverting the party's right to purchase: 
 Griffin v. Iowa Homestead Co., 31-282. 
 
 49. Where a party who made a claim to 
 swamp land waived such claim and elected 
 to take other lands instead, held, that he 
 could not maintain his claim to the lands 
 first selected as against a person acquu-ing 
 the same in pursuance of such waiver : Fos- 
 ter V. Bettsicorth, 37-415. 
 
 50. Where a grantor recognized the author- 
 ity of executors to purchase, by entering into 
 a contract of sale with them, and, after re- 
 ceiving the purchase money and executing a 
 deed in accordance with his contract, denied 
 its sufficiency, held, that he was estopped 
 from so doing : Shaivhan v. Long, 26-488. 
 
 51. In a particular case, held, that the fail- 
 ure of a party claiming title, to assert such 
 title against others who, to his knowledge, 
 acquired a supposed title to and took posses- 
 sion of the premises and made improvements 
 thereon, under a claim of title adverse to 
 him and without knowledge of his title, was 
 sufficient to operate as an estoppel as against 
 his claims: Lucas v. Hart, 5-415. 
 
 52. Where a mortgagee of personal prop- 
 erty was present at a sale thereof under a 
 subsequent lien, and encouraged a third per- 
 son to purchase at such sale, held, that he 
 was estopped from afterwards asserting a 
 claim to such property under his prior mort- 
 gage : Miles v. Left, 60-168. 
 
 53. A party participating in a sale who holds 
 
 himself out as, and induces the purchaser 
 to believe him to be, a pai'tner in the prop- 
 erty sold, is estopped from denying such part- 
 nership a^ against the purchaser : Sherrod v. 
 Langdon, 21-518. 
 
 54. Bedication : Where lots are sold with 
 reference to a plat upon which certain por- 
 tions ai-e designated as reserved for public 
 use, such representations amount to a dedi- 
 cation so far as the rights of purchasers 
 under such representations are concerned. 
 Such a transaction is in the nature of an 
 estoppel in pais, which precludes the origi- 
 nal owner and his grantees with notice from 
 revoking such dedication: Fisher v. Beard, 
 32-346. 
 
 55. Representations bj debtor to as- 
 signee of claim: Where the assignee of an 
 indebtedness which, as between the original 
 parties, was tainted with usury, that fact 
 not being known to such assignee befoi-e 
 taking the assignment, inquired of the debtor 
 whether the claim was all right and would 
 be paid, and received an affirmative answer, 
 held, that the debtor could not thereafter set 
 up as against such assignee a plea of usury : 
 French v. Rowe, 15-563. 
 
 56. Where an assignment of a claim is 
 taken upon a representation of the supposed 
 debtor as to its existence and the amount 
 thereof, the debtor is thereby estopped to 
 deny such indebtedness. An agreement to^ 
 confess judgment to the assignee upon the 
 claim may be taken as an admission of in- 
 debtedness thereon : Bower V.Stewart, 30-579. 
 
 57. Snifering improvements to be mnde: 
 If a man knowingly, though he does it pas- 
 sively by looking on, suffers another to spend 
 money on land under an erroneous opinion 
 of title, without making known his claim 
 thereto, he shall not afterward be permitted 
 to assert his right as against such person, even 
 though, for the_time being, he may have for- 
 gotten that he has title to the property: 
 Bullis V. Noble, 36-618. 
 
 58. Where a father verbally promises to 
 give his son a piece of land, and allows 
 the son to go on and make improvements on 
 the faith of such promise, the father will be 
 estopped to deny his promise and may be 
 compelled to make specific performance: Pet- 
 ers v. Jones, 35-512; Campbell v. Mayes, 38-9. 
 
 59. The plaintiff, for more than seven 
 
640 
 
 ESTOPPEL, II. 
 
 In pais. 
 
 years after the execution of a deed to him 
 by his son, failed to assert his title and with- 
 held his deed from record, allowing defend- 
 ant to purchase the property from his son 
 and make valuable improvements upon it, 
 with full knowledge thereof. Held, that 
 plaintiff was estopped from setting up his 
 title : Foster v. Bigelow, S4-379. 
 
 60. Where the owner of land allows an- 
 other to improve the same under a claim of 
 right to it, he will thereafter be estopped 
 from asserting ownership thereof : Campbell 
 V. Mayes, 38-9. 
 
 61. Silence of one during the erection of 
 improvements upon property which he sub- 
 sequently purchases wiU. not estop him from 
 setting up such title : Shanks v. Seamonds, 
 84-131. 
 
 62. Record title: The doctrine of estop- 
 pel will not apply to one whose title is prop- 
 erly recorded because he does not take 
 affirmative action to defeat a public sale of 
 his property. The doctrine of caveat emptor 
 will ^pply to the purchaser at such sale: 
 Qwynn v. Turner, 18-1. 
 
 63. The fact that a party having on record 
 a deed to property stands by and lets it be 
 sold as the property of another, without tak- 
 ing steps by injunction to restrain such sale, 
 does not estop him from setting up his title 
 as against the purchaser : Jones v. Brandt, 
 59-333. 
 
 64. Inducing' credit to be given to an- 
 other: If the owner of property holds out 
 another person as owner, or having full 
 power of disposition thereof, and such person 
 assumes to be owner and is given credit as 
 such, the real owner is estopped from assert- 
 ing ownership as against one who has con- 
 tracted with the one assuming to be . owner : 
 White V. Morgan, 43-113. 
 
 66. When the legal title to property is al- 
 lowed to stand in the name of another, who 
 thereby obtains credit, the owner will not be 
 allowed to insist on his title as against the 
 party so misled : Crouse v. Morse, 49-383. 
 
 66. A party is not estopped from claiming 
 to be the owner of goods which he allows 
 another person to use, control and hold him- 
 self out to the world as the owner of, as 
 against one who has notice and knowledge 
 of the facts as to the ownership of the prop- 
 erty : Bray i\ Fliokinger, 69-167. 
 
 67. As to whether the fact that the wife 
 allows her husband to invest her money in 
 property which he holds in his own name, 
 whereby he is enabled to obtain credit, estops 
 her from asserting her claims as against 
 such creditors, guoere: Jones v. Brandt, 59- 
 333. 
 
 68. A wife who by her acts and declara- 
 tions holds out that her husband is worthy 
 of credit by reason of his ownership of land, 
 thus inducing another to give him credit and 
 render services under a contract with him, 
 is afterwards estopped to deny the truth of 
 the representations made by her words and 
 conduct, and cannot assert an equitable title 
 to such lands : Hendershott v. Henry, 63-744. 
 
 69. With reference to taxation: Acounty 
 which refuses to convey swamp land under 
 a contract therefor is estopped from after- 
 wards claiming that during the time it thus 
 refused to convey, the land was subject to 
 taxation : Iowa B. Land Co. v. Story County, 
 36-48. 
 
 70. Where a county had levied taxes for 
 several years upon land against a railway 
 company claiming title thereto, and had by 
 compromise accepted the same in payment 
 of such taxes, held, that it was thereafter 
 estopped from asserting title to the land as 
 against a claimant to whom it had been 
 taxed : Adams County v. Burlington & M. B. 
 R. Co., 39-507. 
 
 71. Where swamp lands were assessed to 
 one claiming to be owner under a purchase 
 from the county, and the taxes collected from 
 him, held, that the county was estopped from 
 maintaining action to set aside the sale: 
 Audubon County v. American Emigrant Co., 
 40-460. 
 
 72. In order that taxation of land may act 
 as an estoppel of the county from claiming 
 title thereto, actual payment of the taxes 
 must be shown. Mere assessment will not 
 be sufficient : Page County v. Burlington & 
 M. B. R. Co., 40-530. 
 
 73. The taxation of land to a purchaser 
 whose title had been obtained from the 
 county by fraud, the taxing officer not being 
 aware of the fraud, held not to estop the 
 county from asserting title to said land as 
 against such purchaser: Bixby v. Adams 
 County, 49-507. 
 
 74. Where the county authorities improp- 
 
ESTOPPEL, II. 
 
 641 
 
 In pais. 
 
 erly and unlawfully taxed certain land which 
 in fact belonged to the county, and it was 
 sold at tax sale, and the tax purchaser there- 
 after for several years paid the taxes thereon, 
 held, that the county was not estopped by 
 the unauthorized acts of its officers from 
 asserting title against the tax purchaser: 
 Howard County v. Bullis, 49-519. 
 
 75. After having treated property as be- 
 longing to a private owner by assessing it 
 to him and receiving the taxes from him 
 thereon, a city is estopped from setting up 
 title in itself as against such owner : Simplot 
 V. Dubuque, 49-630; S. C, 56-639. 
 
 76. The fact that after conveying land to a 
 purchaser the county brings action to have 
 such conveyance set aside will not render 
 taxes levied on the property after the con- 
 veyance void: American Emigrant Co. v. 
 Iowa R. Land Co., 52-323. 
 
 7 7. "Where a municipal corporation sells a 
 tract of land, and its authorized agents rep- 
 resent that there are no municipal taxes 
 assessed against the same, neither the mu- 
 nicipality nor its officers can collect from the 
 grantees taxes for preceding years if as- 
 sessed subsequent to the conveyance. Omis- 
 sions resulting from the mistake or inadvert- 
 ence of the assessor may be corrected and 
 such amounts may be collected, but good 
 faith forbids an assessment made in violation 
 of a written agreement and of an explicit un- 
 derstanding between the parties in the ad- 
 justment of a pending controversy : Calhoun 
 County V. American Emigrant Co., 93 U. S., 
 124. 
 
 78. As to tax titles: While the acceptance 
 from the clerk of the court of money paid 
 to him to redeem land from a tax sale might 
 estop the person so receiving from setting up 
 his tax title or from denying the right of re- 
 demption, it does not estop him from set- 
 ting up against the redemptioner a title 
 derived under an independent transaction: 
 Terrell v. Grimmell, 20-393. 
 
 79. Official acts: In an action based upon 
 a tax deed executed by defendant as county 
 treasurer, which deed was void because show- 
 ing that the sale was en masse and not in 
 parcels, held, that the fact that the tax cer- 
 tificate on which the deed was based showed 
 a sale in parcels could not be relied upon 
 to defeat defendant's title as an individual. I 
 
 Vol. 1—41 
 
 The fact that defendant, as treasurer, ex- 
 ecuted an erroneous deed, would not estop 
 him individually from objecting to it : Byam 
 V. Cook, 21-392. 
 
 80. Questioning Talidity of judgment: 
 Where it appeared that a judgment defend- 
 ant, although not served with notice and not 
 appearing in the action in his individual ca- 
 pacity, did appear therein in a representa- 
 tive capacity, and had knowledge of the 
 judgment soon after it was rendered and 
 took no steps to have it set aside, held, that 
 he was estopped from denying its validity as 
 against a person who afterwards purchased 
 property in the belief that the judgment was 
 valid and binding: Macomber v. Peek, 39- 
 351. 
 
 81. A party who has successfully defended 
 against a foreign judgment on the ground 
 that it was void for want of jurisdiction can- 
 not, in an action by the same party on the 
 original indebtedness, insist that the same 
 judgment was valid and that the indebted- 
 ness was merged therein : /Scoff v. Luther, 
 44-570. 
 
 82. By procuring an adjudication that a, 
 judgment is void for want of jurisdiction, a, 
 party estops himself from afterwards insist- 
 ing on any rights under such judgment : 
 Sweezey v. Stetson, 67-481. 
 
 83. Where a party has pleaded a judgment 
 as a defense in another action, thereby claim- 
 ing that he is bound by such judgment, he 
 cannot afterwards, when the other party 
 seeks to enforce such judgment, deny its 
 validity: District T2i v. Independent Di.it., 
 69-88. 
 
 84. Where a party takes relief and induces 
 others to act on a construction put by him on 
 a judgment affecting him as a party, he can- 
 not afterwards insist upon rights thereunder 
 inconsistent with the view which he has in- 
 duced others to take. Therefore where, un- 
 der the assumption that a tax title had been 
 declared void by the action of a circuit court 
 of the United States to which the case affect- 
 ing it was removed from the state court, a 
 tax purchaser induced others to treat it as 
 void and asked relief from the board of super- 
 visors on that ground, held, that he could 
 not afterwards insist that the adjudication of 
 said court did not affect the validity of such 
 title : Bou-en v. Duffle, 66-88. 
 
642 
 
 ESTOPPEL, II. 
 
 In pais. 
 
 85. Pleading': An allegation in a i^leading 
 in another action, signed and filed by the 
 attorney and not sworn to, and on which the 
 parties never come to trial, does not operate 
 as an estoppel : Shepard v. Pratt, 32-396. 
 
 Further, as to admissions in Pleadings, 
 see that title, XIV, a. 
 
 86. Inconsisteut cLiiins: A party who has 
 set up claim to possession of property under 
 one right cannot, if action is brought against 
 him in reliance upon such claim, assert an- 
 other inconsistent right thereto : Crawford v. 
 Nolan, 70 ; Citizens' Bank v. Dotes, 68-460. 
 
 87. Anadmissionin the trialof acase, made 
 for the purpose of securing a. supposed ad- 
 vantage therein, estops the paa-ty from after- 
 wards changing front and in the same action 
 denying the matter thus admitted : Hyatt v. 
 Burlington, C, R. & N. R. Co., 68-062. 
 
 88. Where a person as a witness upon a 
 trial asserts that he has no interest in the 
 cause of action, but that it belongs to plaintiff, 
 and makes such assertion for the puriDose of 
 enabUng plaintiff to recover upon such cause 
 of action, he thereby precludes himself in the 
 futiu'e from denying such statement and 
 seeking to recover on the same cause of ac- 
 tion against defendant : Hoytv. Hoyt, 68-703. 
 
 89. Sales under execution : A party re- 
 ceiving from the sheriff and retaining surplus 
 money arising from a sale under foreclos- 
 ure, with full knowledge of how notice has 
 been served, will be held to have ratified the 
 decree, and to be estopped from denying the 
 sufficiency of notice : Southard v. Perry, 21- 
 488. 
 
 90. Where a debtor, whose homestead was 
 sold under special execution, allowed the 
 sheriff, without objection, to apply the over- 
 plus realized by such sale to other executions 
 and pay the same over to the execution cred- 
 itors, held, that the debtor was estoi3j)ed 
 from asserting his claim to have such over- 
 plus paid to him as exempt and suing to re- 
 cover the same from the sheriff : Brumbaugh 
 ■V. Zollinger, 59-384. 
 
 91. Where one of several judgment debt- 
 ors procures an assignment of a judgment to 
 himself, and has execution issued thereon 
 under the erroneous belief that he can en- 
 force such judgment against the other par- 
 ties thereto, the fact that a co-defendant 
 therein allows him to proceed to sell his prop- 
 
 erty will not estop the latter from setting up 
 the invalidity of the proceedings to defeat 
 the sale : Drefahl v. Tuttle, 42-177. 
 
 92. Payment under protest: The pay- 
 ment of money in redemption from a fore- 
 closure sale of premises, although made under 
 protest, held, in a particular case, to be a vol- 
 untary payment in such sense that the party 
 was estopped thereby from any claim to re- 
 cover it back : Daivson v. Mann, 49-596. 
 
 And further as to payment under protest, 
 see Payment and Dischaege, §g 14-20, 
 
 93. By contract: Where a district town- 
 ship, claiming by virtue of judgment against 
 another district township to have jurisdic- 
 tion of certain territory, entered into a con- 
 tract for services of a teacher to be per- 
 formed in such territory, held, that upon 
 reversal of the judgment under which such 
 jurisdiction was claimed, it was estopped 
 from denying its liability upon such con- 
 tract : Hull V. District T'p, 41-494. 
 
 94. Where an officer of a city was given a 
 salary in lieu of certain fees, and accepted 
 such salary, held, that he was estopped from 
 claiming the fees, even though the city might 
 not have been authorized to deprive him of 
 them : Bryan v. Des Moines, 51-590. 
 
 9.>. Accepting benefits: Where the ward 
 of a guardian, after becoming of age, with 
 full knowledge of the facts of the sale, ac- 
 cepts and retains the purchase money from a 
 sale of his lands by the guardian, there being 
 no fraud or mistake, he is equitably estopped 
 to deny the validity of the sale, whether 
 such sale is void or voidable: Deford v. 
 Mercer, 24-118. 
 
 96. Where a party has asserted rights ac- 
 cruing under the attempted foreclosure of a 
 chattel mortgage by claiming credit on the 
 indebtedness in the amount realized at such 
 foreclosure sale, he cannot afterwards assert 
 that the foreclosure was without right and 
 that the purchaser thereunder is a mere tres- 
 passer: Rump V. Schwartz, 67-471. 
 
 97. Where a wife not joining in a convey- 
 ance of land by her husband to relinquish 
 her dower accepted the payment of the pro- 
 ceeds of such property to herself, with a ver- 
 bal agreement that she would never after- 
 wards claim dower in such property, held, 
 that she was estopped thereby from after- 
 wards asserting any claim for dower, al- 
 
ESTOPPEL, II. 
 
 ©43 
 
 In pais. 
 
 though the relinquishment was not in wTit- 
 ing: Dunlap v. Thomas, 69-358. 
 
 98. And held, in such case, that the heirs 
 of the wife were estopped from asserting 
 any claim against such land in right of the 
 wife: Ibid. 
 
 99. Adverse possession: The fact that a 
 city allows the owner of property abutting 
 upon a street to inclose such street without 
 objection, while having no color of title or 
 claim of right thereto, does not estop it from 
 afterwards asserting its rights therein, even 
 after such possession is continued for ten 
 years: Solberg v. Decorah, 41-501. 
 
 100. The termination of the occupancy of 
 land by a person having title thereto, and 
 the failure to pay taxes thereon, will not 
 estop Mm as against a claimant under an- 
 other title who enters and holds possession. 
 Nothing but the expiration of the period of 
 limitation will give the subsequent occupant 
 a valid title as against the real owner : San- 
 ders V. Godding, 45-463. 
 
 101. Where a conveyance of real pi'operty 
 is shown by written instrument, parol evi- 
 dence that the grantor, after such conveyance, 
 continued to take standing timber from the 
 property conveyed is not admissible for the 
 purpose of creating an estoppel by which 
 such grantor is entitled to the privilege of 
 taking such timber : Davis v. Hull, 67-479. 
 
 102. Estoppel by acts of agents: A party 
 is not estopped by the action of others who 
 have no power to bind him : First Nat. Bank 
 V. Manning, 37-610. 
 
 103. The fact that a husband has been in 
 the habit of signing his wife's name to deeds 
 will not operate to estop her unless it was 
 done with her knowledge. Before a princi- 
 pal will be bound by acts of another as agent, 
 the principal must know that such other 
 person is so acting: Morris v. Sargent, 18-90. 
 
 104. Statements of the husband with ref- 
 erence to his wife's connection with his busi- 
 ness, tending to render her liable for indebt- 
 edness contracted therein, held not binding 
 upon the wife : Barbee v. Hamilton, 67-417. 
 
 105. Representations of an employee of a 
 gas company acting in the capacity of book- 
 keeper and collector, as to the location of 
 the pipes of the company in a particular 
 street, held not to be such as to estop the 
 company in case such representations were 
 
 ei-roneous: Davenpm^t Cent. R. Co. v. Dav- 
 enport Gas Light Co., 48-301. 
 
 lOfi. The knowledge of an agent acquired 
 in connection with the business of the agency 
 is the knowledge of the principal, and the 
 latter will be estopped thereby as fully as by 
 personal knowledge. (Point discussed in dis- 
 senting opinion) : Crouse v. Morse, 49-382, 389. 
 
 107. The principal is estopped by acts and 
 statements of his agent only where they are 
 made while the agent is engaged in the busi- 
 ness of the agency and are in relation to 
 that business : Hakes v. Myriek, 69-183. 
 
 108. A county cannot be bound by unlaw- 
 ful acts of its officers so as to create an estop- 
 pel : Gill V. Appanoose County, 68-20. 
 
 109. Where the treasurer of a school dis- 
 trict, who was also assistant cashier in the 
 bank in which the money of the district was 
 kept on deposit, made a false entry on the 
 books of the bank for the purpose of show- 
 ing an amount to be on hand at the time of 
 settlement which was not actually on hand, 
 which entry was subsequently erased by 
 him ; and the directors, at the time of settle- 
 ment, asked from the cashier the amount of 
 funds to the credit of the treasurer, which 
 amount, as ascertained by the book-keeper 
 from the books, was given to the directors, 
 including this false entry, held, that the bank 
 was not estopped from denying the fact of 
 the amount specified in the false entry being 
 on deposit at the time of such settlement: 
 Independent Dist. v. Merchants' Nat. Bank, 
 68-343. 
 
 Further as to how far declarations of agent 
 bind principal, see Agency, III, c. 
 
 Attorney estopped from taking advantage 
 of his fraud, see Attoeneys, § 75. 
 
 110. Other cases: The fact that a railroad 
 company allows a passenger to xide several 
 times upon a ticket which has expired by 
 express limitation will not estop it from re- 
 fusing to accept the same ticket in payment 
 of further transportation: Sherman v. Chi- 
 cago cfc N. W. R. Co., 40-45. 
 
 111. Under the statute allowing double 
 damages in an action against a railway com- 
 pany for stock killed where the company has 
 failed to fence, upon proof of notice to the 
 company of the damage and its failure to pay 
 the same for thii'ty days, held that the fact that 
 the stock owner in his notice claimed that the 
 
644 
 
 EVIDENCE. 
 
 Miscellaneous. 
 
 injury resulted by reason of fencing at a 
 
 I. Relevancy and materiality — con. 
 
 crossing, would estop him from claiming 
 
 4. 
 
 Opinions and conclusions; testi- 
 
 double damages for failure of the company to 
 
 
 mony of experts. 
 
 pay his claim within thirty days after such 
 
 
 a. Admissibility of opinions in 
 
 notice, because the delay beyond thirty days 
 
 
 general. 
 
 would not render the company liable to double ' 
 
 
 b. Opinions of eocperts. 
 
 damages under the claim actually made in the 
 
 5. 
 
 Evidence as to handwriting. 
 
 notice: Davis v. Chicago ^ B. I. & P. B. Co., 
 
 6. 
 
 Evidence as to value and damages. 
 
 40-392. 
 
 7. 
 
 Evidence of title to real property. 
 
 112. Where a railroad aid tax was voted 
 
 II. Pkoof. 
 
 by a township, and the railroad proceeded 
 
 1. 
 
 Judicial notice. 
 
 upon the faith thereof to comply with the 
 
 3. 
 
 Becords and documents; admissibil- 
 
 conditions upon which it had been voted, and 
 
 
 ity and proof of. 
 
 expended money in constructing its road in 
 
 3. 
 
 Primary and secondary evidence; 
 
 accordance with such conditions, held, that 
 
 
 the best evidence. 
 
 tax payers in the township, failing to make 
 
 4. 
 
 Parol evidence to vary, contradict 
 
 objections to the validity of the tax until 
 
 
 or explain leritten instruments. 
 
 the completion of the road in accordance 
 
 5. 
 
 Persons or things as evidence; pho- 
 
 with the conditions, were estopped from set- 
 
 
 tographs; experiments; examina- 
 
 ting up any defect in the election at which 
 
 
 tion of person; resemblance. 
 
 the tax was voted : Burlington, O. R. & M. 
 
 III. Peoduction and effect of evidence. 
 
 R. Co. V. Steivart, 39-267 ; Lamb v. Burling- 
 
 1. 
 
 Burden of proof; amount and pre- 
 
 ton, C. B. & M. B. Co., 39-333. 
 
 
 ponderance of evidence. 
 
 
 2. 
 3. 
 
 Presumptions; prima facie proof. 
 
 ESTRATS. 
 
 Attendance of witnesses. 
 
 4. 
 
 Bule for production of books and 
 
 See Animals. 
 
 
 papers. 
 
 
 5. 
 
 Procuring affidavits. 
 
 EVIDENCE. 
 
 6. 
 
 Depositions; perpetuating testi- 
 
 I. Relevancy and mateeiautt. 
 
 
 mony. 
 
 1. In general. 
 
 7. 
 
 Competency and credibility; im- 
 
 2. Hearsay. 
 
 
 peachment of witnesses. 
 
 ■d. In general. 
 
 
 a. Competency as affected by in- 
 
 b. Testimony of ivitness in an- 
 
 
 terest. 
 
 other trial. 
 
 
 b. Incompetency of witness with 
 
 c. Proceedings in other cases. 
 
 
 regard to personal transac- 
 
 3. Admissions, confessions, and dec- 
 
 
 tions or communications vHth 
 
 larations. 
 
 
 person since deceased or in- 
 
 a. Admissions of parties and priv- 
 
 
 "^sane. 
 
 ies; confessions. 
 
 
 0. Competency of husband or uife^ 
 
 h. Declarations and acts admis- 
 
 
 d. Privileged communications. 
 
 sible as part of the res gestCB. 
 
 
 e. Competency of witness depend- 
 
 c. Declarations, admissions, and 
 
 
 ing upon capacity. 
 
 acts of third persons. 
 
 
 t. Competency of particular testi- 
 
 d. Declarations as to title, owner- 
 
 
 mony. 
 
 ship, possession, etc. 
 
 
 g. Credibility. 
 
 e. Declarations in the course of 
 
 
 h. Impeachment. 
 
 official dutyi 
 
 
 i. Credibility of interested or dis- 
 
 f. Declarations or entries made by 
 
 
 credited witness. 
 
 a person since deceased. 
 
 8. 
 
 Order and method of introduction. 
 
 g. Entries in books of account. 
 
 
 a. Introduction. 
 
 h. Maps, plats, books of science 
 
 
 b. Number of witnesses^ 
 
 and general history, etc. 
 
 
 c. Examination of witnesses. 
 
EVIDENCE, I, 1. 
 
 ut 
 
 Relevancy and materiality. — In general. 
 
 III. Peoddction- aot) effect of evidence, 
 Order and method of intro- 
 duction — continued, 
 
 d. Cross-examination, 
 
 e. Rebutting evidence. 
 9. Objections to evidence. 
 
 As to the sufficiency of evidence and bur- 
 den of proof as to particular questions, see 
 the titles under which such questions prop- 
 erly belong. 
 
 As to rules of evidence peculiar to crim- 
 inal cases, see Criminal Law, III, 13. 
 
 As to evidence of Maeriage, see that title. 
 
 As to the Statute of Frauds, see that title. 
 
 I. Relevancy and mateeiality. 
 1. In general. 
 
 1. Evidence must be pertinent: Evidence 
 should correspond with the allegations and 
 be confined to the points in issue: KoeJiler v. 
 Wilson, 40-183 ; Clark v. Reiniger, 66-507. 
 
 2. Therefore, held, that a party, suing, as 
 originally owning in her own right the note 
 sued upon, could not recover upon evidence 
 of right thereto as assignee of her husband : 
 Koehler v. Wilson, 40-183. 
 
 Further as to variance, see Pleadings, I, e. 
 
 3. Irrelevant evidence may be lawfully 
 rejected unless the party oflfering it shows 
 that it can be relevant to a fact already estab- 
 lished or which he proposes to establish by 
 evidence to be introduced : Smith v. Bissell, 
 2G. Gr., 379. 
 
 4. What deemed relevant: It is not neces- 
 sary that evidence offered shall bear directly 
 on the case, but it is admissible if it tends to 
 prove the issue, or forms a link in the chain 
 of proof. Therefore, where defendant was 
 on trial for the murder of his wife, held, that 
 improper intimacy between him and another 
 woman about the time of the killing was ad- 
 missible : State v. Hinkle, 6-380. 
 
 5. Where there is a conflict in the testi- 
 mony of witnesses, the jury may be allowed 
 to look at the proven circumstances of the 
 case, and consider what disputed fact testi- 
 fied to is, in view of the proven cu'cum- 
 stances, the more probable: Coskery v. 
 Young, 70 . 
 
 6. Insufflcieney: Evidence should not be 
 rejected merely for the reason that it alone 
 
 would not be sufficient to support the issue 
 in behalf of the party introducing it : Han- 
 cock V. Wilson, 39-47. 
 
 7. The fact that evidence bears with little 
 weight and remotely upon the issues of the 
 case is not a ground for excluding it if it 
 tends to support the claim of the party offer- ■ 
 ing it : Hoadley v. Hammond, 63-599. 
 
 8. Remoteness: Where the issue was as 
 to whether the healthfulness of the locality 
 of plaintiff's residence had been impaired by 
 the erection of a mill-dam, held, that evi- 
 dence of a witness that he lived near the 
 same locality and that his family had been 
 sick every fall with fever and ague was not 
 material : Watson v. Van Meter, 48-76. 
 
 9. Where plaintiff sought to recover from 
 defendant damages to winter wheat by rea- 
 son of its being trampled and eaten off by 
 defendant's stock, and being thereby winter- 
 killed, held, that evidence that other wheat 
 in the same neighborhood which had not 
 been trampled upon or eaten was killed by 
 the winter, should have been received : Little 
 V. MoOuire, 43-447. 
 
 10. Where the qviestiou was as to whether 
 plaintiff had been negligent in not plowing 
 around his stacks of grain to protect them 
 from fire, held, that evidence that other 
 stacks of grain which had been plowed 
 around were also destroyed was competent 
 to show that he had not failed to employ or- 
 dinary care in not thvis protecting his stacks : 
 Lewis V. Chicago. M. & St. P. R. Co., 57-127. 
 
 11. Evidence as to a custom existing more 
 than a. year before the transaction in ques- 
 tion, held not competent as evidence Of the 
 existence of the custom at the time of such 
 transaction : Hale v. Oibbs, 43-380. 
 
 12. In an action for damages from a de- 
 fective railway crossing, it is not proper to 
 admit evidence of former accidents at the 
 same place to other persons : Hudson v. Chi- 
 cago & N. W. R. Co., 59-581. 
 
 13. In an action for injuries resulting from 
 negligence of defendant's engineer, held, 
 that evidence of the subsequent discharge of 
 such engineer by defendant, and also by 
 another party, was not proper on the ques- 
 tion of his competency : Couch v. Watson 
 Coal Co., 46-17. 
 
 14. In an action to recover for services 
 rendered defendant by plaintiff in examining 
 
646 
 
 EVIDENCE, I, 1. 
 
 Relevancy and materiality ; in general. 
 
 title to land, held, that evidence of cordial 
 relations existing between the parties about 
 the time the contract for services was claimed 
 to have been made was irrelevant : Ball v. 
 Sykes, 70 . 
 
 15. Where a witness testified as to the 
 condition and appearance of a corner of a 
 building where it was supposed a barrier had 
 been fastened four months before, at the 
 time of the happening of an accident, as was 
 alleged, by reason of the insufficiency of the 
 fastening of such barrier, held, that the 
 length of time ejapsing before the examina- 
 tion was made, while tending to lessen the 
 value of the testimony, did not render it in- 
 competent : Cramer v. Burlington, 49-213. 
 
 16. In an action for injuries received from 
 a defective sidewalk, held, that the testimony 
 of witnesses as to the condition of the side- 
 walk after the accident, introduced for the 
 purpose of showing that at the time a photo- 
 graph was taken which was introduced in 
 evidence it was in the same condition as 
 when the injury occurred, held proper: 
 Barker v. Perry, 67-146. 
 
 1 7. In an action by a county superintend- 
 ent for fees for examining teachers during a 
 particular period, held, that evidence of the 
 number of days required by plaintiff's suc- 
 cessor to examine teachers, etc., was not 
 competent; Farrell v. Webster County, 49- 
 245. 
 
 1 8. Where it was sought to show contrib- 
 utory negligence on the part of the person 
 receiving injuries on account of a defective 
 sidewalk, by proof that he was endeavoring 
 to procure impecunious parties as securities 
 for his appearance at court, held, that the 
 evidence was too remote to be admissible: 
 Hubbard v. Mason City, 60-400. 
 
 19. In an action to recover money alleged 
 to have been paid to trustees therein men- 
 tioned and by them turned over to defendant, 
 held, that a receipt from defendant to said 
 trustees for a sum much less than the entire 
 amount of the subscription was not admis- 
 sible to prove the payment of the subscrip- 
 tion to the trustees: Sypher v. Savery, 39- 
 258. 
 
 20. In an action for breach of a contract of 
 conveyance, a deed of a part of the premises 
 may, under proper allegations, be introduced 
 in evidence to show that, prior to the time 
 
 fixed for the conveyance, defendant had 
 placed it out of his power to convey : 'Shaw 
 V. Brown, 13-508. 
 
 21. The fact that a party has effected an 
 insurance on his life is not admissible as evi- 
 dence of his good health at that time : Lee v. 
 Cresco, 47-499. 
 
 22. In an action by a parent for injuries to 
 a minor child, plaintiff's own Hi-health is not 
 pertinent : Benton v. Chicago, R. I. <Sc P. tt. 
 Co.. 55-496. 
 
 23. In an action by an administrator to re- 
 cover for injuries causing the death of de- 
 cedent, evidence of the number of children 
 of decedent is not admissible: Beenis v. 
 Chicago, R. I. & P. R. Co., 58-150. 
 
 24. But evidence in such case that deced- 
 ent was a married man or was dependent on 
 his own eai-nings for support may be shown : 
 Ibid. ; Simonson v. Chicago, R. I. & P. R. 
 Co., 49-87. 
 
 And as to what is admissible in actions for 
 personal injuries, see further. Damages, 
 g§ 221-229. 
 
 25. Where, in an action upon notes and an 
 account, defendant's testimony tended to 
 sliow payment of the notes, held, that it was 
 competent for plaintiff to show that the pay- 
 ments made were in fact applied, by agree- 
 ment of defendant, upon the account and not 
 upon the notes, and that it was error to ex- 
 clude such proof because plaintiff did not 
 claim that defendant's testimony showed the 
 account as still subsisting : Thorn v. Moore, 
 21-285. 
 
 26. Where it was sought to impeach a wit- 
 ness by showing that he made conflicting 
 statements at a previous time, while being 
 shaved, held, that it was not proper to show, 
 by way of corroboration of his denial of such 
 previous statements, that he had a brother 
 who was a barber, and with whom he had an 
 arrangement to be shaved for nothing : State 
 V. Cross, 68-180. 
 
 27. Evidence that shot was found at de- 
 fendant's house immediately after the com- 
 mission of the crime of maliciously shooting 
 and killing an animal, which was similar to 
 that found in another animal injured at the 
 same time as the one killed, held admissible : 
 State V. Wholeham, 23-297. 
 
 28. Materiality: Where a party testified 
 as a witness that he paid certain bonds in- 
 
EVIDENCE, I, 1. 
 
 647 
 
 Relevancy and materiality ; In general. 
 
 volved in the transaction in suit, held, that 
 the question as to where he got the bonds 
 ^^'as immaterial : Jones v. HopkiiLH, 32-503. 
 
 29. Testimony as to the location of a cer- 
 tain stake set by a surveyor, held propei-ly 
 excluded, where the location of the land was 
 to be determined by a fixed monument called 
 for in the conveyances, and the location 
 could not have been of any effect if shown : 
 Steyer v. Curran, 48-580. 
 
 30. In a civil action for seduction, held, 
 that evidence that the person seduced in- 
 troduced defendant as her husband was not 
 material upon the question of previously 
 chaste character. Also, held, in such case, 
 that evidence of defendant's wife tliat she 
 and her husband lived in peace and harmony 
 was not competent as rebutting the testimony 
 of the person seduced as to representations 
 made to her by defendant : Burtis v. Charn- 
 bers, 51-645. 
 
 31. Where the evidence of the connection 
 of defendants with the crime depended on 
 testimony involving a collateral fact as con- 
 temporaneous therewith, held, that evidence 
 of co-defendant having made statements as 
 to the collateral fact at a time preceding the 
 commission of the crime was admissible to 
 rebut the evidence connecting defendants 
 with the crime : State v. Cruise, 19-312. 
 
 32. Where the question is as to whether a 
 person in possession of personal property has 
 title thereto, and he claims to have acquired 
 title from a former owner in consideration 
 of assuming the latter's debts, evidence of 
 that fact is material for the purpose of 
 showing the true extent and character 
 of the transaction: Wallace v. Wallace, 62- 
 651. 
 
 33. Where it appears that defendant rep- 
 resented that certain posts with reference to 
 which a conti-act was made with plaintiff 
 were manufactured at several places, held, 
 that evidence that they were not manufact- 
 ured at more than one place was material. 
 Also held, that evidence showing that when 
 goods were ordered in pursuance of the con- 
 tract, defendant responded that they would 
 be furnished for cash at a rate in advance of 
 what was specified in the contract, was com- 
 petent, as tending to show that the represen- 
 tations under which the contract was made 
 were false : Porter v. Stone, 63-443. 
 
 Si. Where defendant resisted payment of 
 a draft accepted by him, claiming that his ac- 
 ceptance was procured by fraud, held, that 
 the relations between himself and the com- 
 pany in whose interest he acted in accepting, 
 might be shown, as supplying a part of the 
 history of the case : Delaivare County Bank 
 V. Buncombe, 48-488. 
 
 35. Materiality of value: Where the 
 question was as to whether a subcontract 
 for grading included certain unfinislied and 
 difficult portions of the work, and there was 
 a conflict of evidence, held, that it was com- 
 petent to show what was embraced in the 
 main contract, and the price, in order to de- 
 termine whether it was i-easonable to believe 
 that only the cheaper portions were included 
 in the subcontracts at the price named 
 therein : Ibid. 
 
 36. Where there is a conflict in the direct 
 evidence of the terms of a sale or trade of 
 real property, the actual value of the prop- 
 erty may be shown as a slight corroborative 
 circumstance ; but such evidence should be 
 admitted with great caution and Umited to 
 its strictly legitimate province : Johnson v. 
 Harder, 45-677 : and see Waldron v. Zolli- 
 kofer, 3-108. 
 
 37. In an action on certain orders given in 
 part payment for the erection of a school- 
 house under contract, in which it was alleged 
 that the amount mentioned in the contract 
 was greatly in excess of the value of the 
 work by reason of a fraudulent combination 
 between plaintiff and the school district oiH- 
 cers, held, that the value of the building 
 when erected and its'cost were properly mat- 
 ters to be showed in evidence to rebut such 
 allegations of fraud: Wormley v. District 
 T'l^, 45-666. 
 
 38. Where action was brought by the as- 
 signee of a contract, held, that evidence as 
 to what he paid for such contract was imma- 
 terial, it not being pleaded that the contract 
 had been fraudulently assigned or that 
 plaintiff was not the real party in interest : 
 Winch V. Baldwin, 68-764. 
 
 What evidence admissible to show value, 
 see infra, S§ 473-505, 
 
 39. Distinct transactions, acts, etc.: 
 Where it is sought to prove fraudulent re^jre- 
 sentations made to one person, evidence of 
 fraudulent representations made about the 
 
648 
 
 EVIDENCE, I, 1. 
 
 Relevancy and materiality ; in general. 
 
 same time to another is not admissible: 
 Mather r. Robinson, 47-403. 
 
 40. Evidence that other sales than the one 
 in question were effected by fraudulent 
 representations is not admissible to prove 
 fraudulent representations in the one in- 
 volved in the case : Gardner v. Trenary, 
 6.5-646. 
 
 41. In an action for false representations, 
 evidence that similar representations to those 
 claimed to have been made to plaintiff were 
 made under similar circumstances by de- 
 fendant to other parties, although not in the 
 presence of plaintiff, is admissible. Such 
 evidence tends to support evidence of plaint- 
 iff that like representations were made to 
 him : Porter v. Stone, 62-443. 
 
 42. In an action against the seller of a 
 patent-right claimed to have been sold under 
 false representations, held admissible to show 
 that defendant had resorted to certain de- 
 vices not known to plaintiff, to make the 
 device appear practicable, in transactions 
 other than the one in question, for the pur- 
 pose of showing that defendant was making 
 false claims in the transaction in question : 
 Foster v. Trenary, 65-620. 
 
 43. The grantor in an alleged fraudulent 
 conveyance cannot be asked with reference 
 to other distinct transactions for the purpose 
 of showing that he has made other fraudu- 
 lent conveyances : Clark v. Reiniger, 66-507. 
 
 44. Evidence tending to identify accused 
 as the person committing the crime charged 
 is admissible, although it tends also to prove 
 a distinct crime, or to show a different mo- 
 tive, from that charged. Therefore, held, 
 that in a prosecution for burglary, where it 
 appeared that the object in view was lar- 
 ceny, it was proper to show that defendant 
 knew of the possession by the occupant of 
 the house of a large sum of money, as tend- 
 ing to identify defendant as the person com- 
 mitting the burglaj-y: State v. Kepper, 65- 
 745. 
 
 45. Evidence as to the conduct of a party 
 at other times when intoxicated is admissible 
 as giving character to acts relied upon as 
 evidence of the particular intoxication in 
 question : State v. Huxford, 47-16. 
 
 On the question of insanity it is competent 
 to show that the party has been insane at a 
 prior period : See infra, g§ 81-83. 
 
 As to proof of other acts as showing in- 
 tent, knowledge, etc., see Criminal Law. 
 §§ 1547-1558. 
 
 46. Circumstances: All the circumstances 
 surrounding the transaction, such as that a 
 guarantor held a mortgage on the property 
 of the debtor, etc., held properly admissible 
 in evidence in an action against the guarantor 
 to show the nature of the guaranty : Shad- 
 bolt V. Shaw, 40-583. 
 
 47. Where there is conflicting and irrecon- 
 cilable testimony, inferences drawn from cir- 
 cumstances well established are much more 
 satisfactory than positive testimony which is 
 conflicting: Cameron v. Hovey, 38-598. 
 
 48. Any competent evidence which tends 
 to prove any material fact of the issue is ad- 
 missible, and any distinct fact, therefore, in a 
 criminal prosecution which the state is re- 
 quired to establish may be proven by cncuiu- 
 stautial evidence, and the state is not limited 
 to proof of such circumstances as tend di- 
 rectly to show defendant's guilt: State v. 
 Reno, 67-587. 
 
 As to circumstantial evidence in criminal 
 prosecutions, see Ceiminal Law, §§ 1416- 
 1423. 
 
 As to weight of circumstantial evidence, 
 see infra, § 844. 
 
 49. Knowledge, intention, etc.: When 
 the knowledge, belief or intention of a party 
 is a material fact, he may testify thereto the 
 same as any other fact. The jury in such 
 cases should be instructed that, in judging of 
 a man's belief, knowledge or intention, they 
 should consider all the evidence, and that 
 the statement of the party in that respect is 
 not conclusive upon them : Watson v. Chesire, 
 18-203. 
 
 50. A party to a fraudulent conveyance 
 may be asked to state what his intention or 
 motive in making the conveyance was : Frost 
 V. Rosecrans, 66-405. 
 
 51. It is a general rule that, where the in- 
 tention or motive of the witness is a material 
 question, he may state what his intention or 
 motive was : Ibid. ; Browne v. Sickie, 68- 
 330. 
 
 52. But where the question to be deter- 
 mined is what were the terms and conditions 
 of the contract into which the parties entered, 
 such question must be determined from the 
 conduct and language of the parties during 
 
EVIDENCE, I, 1. 
 
 649 
 
 Relevancy and materiality ; in general. 
 
 the negotiation, and evidence of motive or 
 intention is immaterial: Browne v. Hiolie, 
 68-330. 
 
 53. A conversation between a principal 
 and agent may be given in evidence by the 
 principal for the purpose of showing knowl- 
 edge and ratification of the agent's acts, 
 although such conversation was not in the 
 presence of the other party: Davenport 
 Savings, etc., Ass'n v. North Am. F. Ins. 
 Co., 16-74. 
 
 54. Intention cannot well be established by 
 direct testimony. It is most satisfactorily 
 determined from conduct, relations and ac- 
 tions : Austin v. Walker, 45-527. 
 
 55. Where the question was as to the in- 
 tention of the parties to the transaction, 
 held, that the jury was authorized to find 
 the intention from the course of dealing be- 
 tween them : Lowe v. Young, 59-364. 
 
 56. In a particular case, held, that certain 
 evidence bearing upon plaintiff's understand- 
 ing of a contract was not receivable, as it did 
 not appear that the fact referred to was 
 known to defendant, and therefore it would 
 not have thrown any light upon the real 
 contract between the parties: Garretson v. 
 Bitzer, 57-469. 
 
 57. As contracts are to be enforced in ac- 
 cordance with the mutual understanding 
 thereof by the parties, evidence as to the 
 understanding of a party thereto is admis- 
 sible : McCormicks v. Fidler, 56-43. 
 
 58. Knowledge of the falsity of represen- 
 tations may be shown by statements made 
 to third persons with reference to the same 
 matter soon after the representations : Jones 
 V. Hopkins. 82-503. 
 
 59. Malice may be inferred from the acts 
 of a party, if unlawful and injurious and 
 with a wrong motive: White v. Spangler, 68- 
 222; MeCord v. High, 24-336. 
 
 As to evidence of criminal intent, malice, 
 etc., in criminal prosecutions, see Criminal 
 Law, §§ 30-32, 133-140, 1544-1546. 
 
 60. Custom, course of business, etc.: 
 Where there is conflicting evidence as to 
 whether a person did a certain act relied 
 upon to fix liability upon him, for instance, 
 whether he verbally acceJJted a bill of ex- 
 change, evidence as to his custom in such 
 matters is admissible : Smith v. Clark, 12-33. 
 
 61. Where the question was whether the 
 
 carrier had properly delivered goods to a 
 certain person as consignee, held, that proof 
 of delivery of prior consignments to the same 
 person, made by the same consignor in the 
 same manner, was pertinent and material as 
 tending to show the course of business be- 
 tween the parties : State v. McEvoy, 69-63. 
 
 62. In a prosecution for keeping a house 
 resorted to for the purpose of gambling, held. 
 that evidence of a witness as to the custom of 
 himself and others in playing games for 
 drinks, cigars, etc., was properly admitted: 
 State V. BUhell. 39-42. 
 
 63. Evidence of an officer of a corporation 
 assigning a reason for a general course of 
 business is not admissible as bearing upon the 
 question whether, in a particular case, a cer- 
 tain act was done which was claimed to have 
 been inconsistent with such course of busi- 
 ness: Walsh V. ^tna L. Ins. Co., 30-133. 
 
 64. Evidence of the course of business of a 
 party to a contract in regard to the making 
 of such contracts is not admissible for the 
 purpose of raising an inference that the par- 
 ticular contract in question was in its terms 
 in accordance with such course of business : 
 MeKivitt v. Cone, 30-455. 
 
 65. Course of dealing between parties may 
 be proven where the question of intention is 
 involved : Lowe v. Young, 59-364. 
 
 66. Evidence of a witness as to a custom 
 existing more than a year before the trans- 
 action in question, held not competent as 
 evidence of the existence of such custom at 
 the time of the transaction : Hale v. Oibbs, 
 43-380. 
 
 67. Where it was sought to establish neg- 
 ligence in a mining company in providing 
 proper machinery, etc., by proof of custom 
 among other companies as to the kind of 
 machinery employed, held, that such custom 
 must be so general that defendant could be 
 presumed to have knowledge of its existence, 
 and that evidence of such machinery used 
 in one mine in another region was not 
 proper: Couch v. Watson Coal Co., 46-17. 
 
 As to the effect of custom, see Contracts, 
 §§ 405-422. 
 
 68. Rumor and reputation : It is error, in 
 a suit for a penalty for violating the intoxicat- 
 ing liquor law, to permit a witness to testify 
 that it is a matter of common repvite and 
 public notoriety that intoxicating liquors 
 
650 
 
 EVIDENCE, 1, 1. 
 
 Relevancy and materiality ; in general. 
 
 were sold by defendant: Cobleighv. McBride, 
 45-116. 
 
 69. In a prosecution for leasing a house for 
 purposes of prostitution, evidence of the 
 character of the house itself is not admissible ; 
 the character of the house in this respect is 
 to be shown by proof as to the character of 
 the inmates thereof and persons resorting 
 thereto: State v. Lyon, 39-379; 'State v. 
 Hand, 7-411. 
 
 70. A person cannot be held liable to pun- 
 ishment as a keeper of such house upon com- 
 mon reputation as to his character : State v. 
 Hand, 7-411. 
 
 71. Evidence of rumors or neighborhood 
 reports are not receivable to prove insanity : 
 Aslicraft v. De Armond, 44-229. 
 
 72. The fact of death cannot be established 
 by evidence of common repute among the 
 relatives and family of the person claimed to 
 be dead: Eoss v. Loomis, 64-432; State v. 
 Wright, 70 . 
 
 73. Character: The general character of a 
 party to a civil suit offers 'such a weak and 
 vague inference as to tlie truth of the points 
 in issue that it is not usual to offer evidence 
 of it: Lewis v. Kennedy, 3 G. Gr., 57. 
 
 74:. In civil actions, evidence of good char- 
 acter should be confined to oases where the 
 intention is the point in issue and the proof 
 consists of slight circumstances: Barton v. 
 Thompson, 56-571. 
 
 ' 75. Evidence that defendant is of a peace- 
 ful disposition is not admissible in a prosecu- 
 tion for assault and battery : Qumton v. Van 
 Ttiyl, 30-554. 
 
 76. Evidence of good character cannot be 
 considered in a civil action for assault and 
 battery in rebutting mahce or in mitigation 
 of damages : Reddin v. Gates, 52-210. 
 
 7 7. Whether evidence of good character is 
 admissible at all in such case, quaere: Ibid. 
 
 78. Whether evidence of general good 
 character is admissible in an action of tort 
 to repel fraud inferred from mere circum- 
 stances, qucere: Bays v. Herring, 51-386. 
 
 79. The general rule in civil actions is that 
 the general character of the parties is not in- 
 volved in the issues, and evidence concern- 
 ing it is not admissible. There are exceptions 
 to the rule, where the character of the party 
 is the very matter in issue ; but, aside from 
 these exceptions, proof of j;ood character 
 
 cannot be received, even where the cause of 
 action involves the charge of a criminal act 
 on the part of the person seeking to introduce 
 evidence of good character: Stone v. Hawk- 
 eye Ins. Co., 68-787. 
 
 80. In an action for seduction, the general 
 character of defendant for chastity is not in- 
 volved, and evidence to establish it is inadmis- 
 sible: Delveev. Boardman, 20-446, 
 
 As to evidence of character, see infra, 
 %% 1125, 1143-1155; 
 
 As to proof of good character in behalf of 
 defendant in a criminal prosecution, see 
 Criminal Law, §§ 1559-1578. 
 
 81. Evidence of insanity: Where insanity 
 is attempted to be shown to avoid a deed, 
 evidence of condition of grantor's mind and 
 his acts and conduct may be received, cover- 
 ing a period extending from before the exe- 
 cution of the deed to a time long subsequent 
 thereto, where it appears that grantor's in- 
 sanity subsequently became complete and 
 was of slow growth, running back through 
 a long period, as such facts are a part of the 
 history of the case necessary to form an in- 
 telligent judgment as to grantor's condition 
 at the time of executing the deed : Ashcraft 
 V. De Armond, 44^229 ; and see State v. Felter, 
 35-67. 
 
 82. Facts connected with the personal his- 
 tory of one claiming to be insane are prop- 
 erly admitted in evidence and considered on 
 the issue of insanity. His deportment, con- 
 versation and acts are competent to show his 
 condition of mind. The circumstance that 
 the pai-ty, when sane, expressed the opinion 
 that for twenty years past he had been of 
 unsound mind, is competent to prove insanity 
 during that time: Ross v. McQuiston, 45-145. 
 
 83. Evidence as to declarations of relatives 
 of a person in regard to his mental condi- 
 tion are not competent for the purposed 
 showing insanity: State v. Porter, 34-131. 
 
 Further as to evidence of insanity, see Con- 
 tracts, g§ 171-174. 
 
 As to presumption of continuance of in- 
 sanity, see infra, g§ 859-860. 
 
 As to opinions of witnesses as to sanity, see 
 infra, gg 384-393. 
 
 As to proof of insanity in prosecutions for 
 crime, see Ckiminal Law, g§ 8-24. 
 
 84. Evidence of death : The character and 
 conduct of the party aUeged to be dead, who 
 
EVIDENCE, I, 1. 
 
 651 
 
 Relevancy and materiality ; in general. 
 
 has been missing, may be shown as circum- 
 stances tending to prove or disprove his 
 death ; yet these facts must have occun-ed, 
 or the character have been recognized, within 
 such reasonable time prior to the absence 
 that they may justly be supposed to afford 
 some light tending to establish or refute it. 
 It is a question of law for the court to deter- 
 mine whether such conduct or recognized 
 character are sufficiently proximate to en- 
 title them to consideration : Tisdale v. Con- 
 nectieut Mat. L. Ins. Co., 38-12. 
 
 85. Any facts or circumstances relating to 
 the character, habits, condition, affections, 
 prosperity and objects in life which usually 
 control the conduct of men, and their mo- 
 tives for their actions, are competent evidence 
 from which may be inferred the death of one 
 who has been absent and unheard from, 
 whatever has been the duration of such ab- 
 sence: Tisdale v. Connecticut Mut. L. Ins. 
 Co., 26-170. 
 
 86. The fact of death is not sufficiently 
 established by evidence of general repute 
 amongst neighbors of the person claimed to 
 be deceased: Soss v. Loomis, 64-432; State 
 V. Wright, 70 . 
 
 87. Where an estate had been divided by an 
 administrator under the authority of the court 
 upon the presumption that one of the chil- 
 dren of deceased was dead without issue, and 
 subsequently creditors of such child sought 
 to garnish the heirs to whom distribution had 
 been made for such share as said child would 
 have been entitled to, if living, held, that 
 a confession of judgment purporting to have 
 been executed by such child about two years 
 previous to the death of the ancestor was ad- 
 missible in evidence to overcome the presump- 
 tion of his death : Crosley v. Calhoon, 45-557. 
 
 As to presumption of death, see infra, 
 g§ 867-871. 
 
 88. Expectancy of life; life-tables: The 
 Carlisle life-tables are competent evidence as 
 to expectancy of life, being standard tables 
 on that subject : Donaldson v. Mississippi <& 
 M. R. Co., 18-280. 
 
 Further as to evidence of expectancy of 
 life in cases of pei-sonal injuries, see Dam- 
 ages, §g 314-320. 
 
 Pecuniary condition of defendant may be 
 shown in actions for slander to affect the 
 damages : See Damages, §§ 131-135, 
 
 Also in an action for personal injuries, see 
 Damages, §§ 231-223. 
 
 89. Evidence admissible by reason of the 
 receipt of other evidence: The whole of an 
 act, declaration or conversation may be 
 given in evidence by one party when another 
 has introduced a part : Courtright v. Deeds, 
 87-503. 
 
 90. The other act or declaration which is 
 receivable by reason of the receipt of evi- 
 dence of a portion of such act or declaration 
 (under Code, § 3650) must be something 
 which is necessary to make the previous or 
 subsequent act or declaration fully under- 
 stood or to explain it. It is not aU that a 
 party may have said at other times in regard 
 to a matter in controversy which may be 
 thus introduced : Dougherty v. Posegate, 3- 
 88 ; and see Williams v. Donaldson, 8-108. 
 
 91. Where a subject is introduced in the 
 examination of a witness, and a part of the 
 facts shown, the opposite party may inquire 
 as to all the facts on the same subject : Jones 
 V. Hopkins. 32-503. 
 
 92. A letter in reply to a letter which is 
 admitted in evidence is also admissible as a 
 part of the same communication: Burling- 
 ton, C. R. & N. R. Co. V. Sherwood, 63-309. 
 
 93. Where a letter offered in evidence con- 
 tains distinct and independent propositions 
 or statements of fact which cannot be mis- 
 understood if read alone, and are in no way 
 in conflict with a former letter, the one is 
 admissible although the other is not intro- 
 duced : Brayley v. Ross, 33-505. 
 
 94. Parol evidence of the contents of a 
 lost letter necessaiy to make another letter 
 fully understood is admissible: Collins v. 
 Bane, 34-385, 389. 
 
 95. If part of an account, in an account 
 book, is relied on, the whole must be re- 
 ceived : Veitlis v. Hagge, 8-163, 189. 
 
 96. When part of a conversation is given 
 in evidence by one party, the whole on the 
 same subject may be inquired into by the 
 other : Oaddis v. Lord, 10-141 ; Hess v. Wil- 
 cox, 58-380. 
 
 97. Where a plea of guilty in a criminal 
 transaction is admissible in evidence in a 
 civil action, proof of statements made at the 
 time of entering such plea cannot be re- 
 ceived as a part of the act, declaration or 
 conversation ; Root v. Siurdivant, 70 . 
 
652 
 
 EVIDENCE, I, 1 ; 2, a. 
 
 Relevancy and materiality ; heai-say. 
 
 98. Where, on the trial of a criminal ac- 
 tion, one declaration of defendant was 
 admitted, but subsequent declarations were 
 refused, such action was held not erroneous 
 where it did not affirmatively appear that 
 such subsequent declarations were necessary 
 to explain the first or make it fully iinder- 
 Btood : State v. Vance, 17-138. 
 
 99. It is not proper, for the purpose of get- 
 ting the whole of a conversation before the 
 jury, to introduce statements made in such 
 conversation as to what third persons have 
 said, which would be mere hearsay : Sims v. 
 Moore, 61-128. 
 
 100. The rule that, where only a part of 
 a conversation is introduced, the other 
 party is entitled to the whole of it, so far as 
 it relates to the same subject, does not apply 
 so as to entitle a i^arty to the i-ost of a con- 
 versation, a part of which he has himself in- 
 troduced : State v. Elliott, 15-72. 
 
 As to competency of a witness to testify to 
 conversations which he has heard, see infra, 
 §g 1118-1121. 
 
 101. A witness may testify as to circum- 
 stances by reason of which the facts as to 
 which he testifies were impressed on his 
 mind : Farmers' Bank v. Young, 36-44. 
 
 102. Where it was testified that a certain 
 transaction took place in the presence of an- 
 other person, held proper to ask such other 
 person, when called as a witness, what he 
 knew about such transaction, and in the in- 
 terrogatory to ask what he knew concerning 
 the circumstances surrounding the matter: 
 Childs V. Dobbins, 61-109. 
 
 103. Where the testimony of plaintiff and 
 defendant as witnesses was in conflict as to 
 what happened in a transaction as to which 
 words claimed to be slanderous were spoken 
 by defendant, held, that evidence of a wit- 
 ness who was present was competent for the 
 purpose of rebutting one of the parties as 
 against the other : Dixon v. Stewart, 33-125. 
 
 104. Where evidence which is pertinent to 
 the inquiry is introduced by one party, the 
 opposite party should be allowed to introduce 
 evidence relating to the same point although 
 the inquiry itself is irrelevant: Stafford v. 
 Oskaloosa, 64-251. 
 
 105. Where the court has allowed imma- 
 terial evidence to be introduced under proper 
 objection, it is error to exclude proper evi- 
 
 dence to rebut it: Frost v. Eosecrans, 66- 
 405. 
 And see further, infra, §S 1341-1348. 
 
 106. In an action by an administrator, 
 portions of the testimony of decedent on ii 
 former trial were by defendant introduced in 
 evidence as admissions by such decedent, 
 and thereupon at plaintiff's request other 
 portions of such testimony were allowed to 
 be read as a part of the same explaining or 
 modifying the portion read; held, that the 
 portion read at plaintiff's request should not 
 be allowed the effect of original evidence in 
 the case, but only as affecting such admis- 
 sions: Conger V. Bean, 58-321. 
 
 2. Hearsay. 
 
 a. In c/eneral. 
 
 107. Not admissible: The law excludes 
 all intermediate or hearsay evidence or mere 
 hearsay declarations by a living witness, who 
 might be reached by process, made to those 
 who are sworn and examined : Ibhitson v. 
 Brown, 5-532; Hutchinson v. Wathins, 17- 
 475. 
 
 108. Wliat deciiied hearsay: Statements 
 by a mortgagee to his attorney upon de- 
 livering the mortgage for collection are inad- 
 missible to prove the loss of the note secured 
 by such mortgage : Jones v. Jones, 20-388. 
 
 109. Where the question was as to the 
 ownership of cattle levied upon by the sher- 
 iff under execution, held, that statements 
 made to the sheriff by the party in possession 
 of the cattle were hearsay: Pond v. Okey, 
 70 . 
 
 110. In an action upon a contract of sub- 
 scription to a railroad company, held, that 
 evidence of statements made, by one having 
 a written i^roposition from the company, to 
 citizens at a meeting for the consideration 
 of such proposition was not admissible in the 
 absence of a showing that such person was 
 authorized by the parties to the writing or 
 by the company to make such statement: 
 First Nat. Bank v. Hurford, 29-579. 
 
 111. In an action against principal and 
 surety on a bond, held, that letters of the prin- 
 cipal as to declarations made by the surety 
 were not admissible as against the latter: 
 Boot & Son's Music Co. v. Caldwell, 54-432. 
 
EVIDENCE, I, 3, a. 
 
 653 
 
 Hearsay. — In general. 
 
 112. In an action upon an account against 
 the estate of decedent, where it was in evi- 
 dence that decedent before his death had 
 given plaintiff permission to take wood from 
 the decedent's land until the account should 
 be satisfied, held, that it was not competent 
 for a witness to testify as to declarations of 
 decedent's widow that she had refused 
 plaintiff leave to take more wood on such ac- 
 count : Canaday v. Johnson, 40-587. 
 
 113. In an action against a common car- 
 rier for damages caused by delay in deliver- 
 ing goods to a connecting carrier, statements 
 made by the agent of the connecting carrier 
 as to whether the goods had reached their 
 destination at a particular time when called 
 for are not admissible, they being mere hear- 
 ^aj-.Hewettv. Chicago, B. & Q. R. Co., 63-611. 
 
 As to when declarations or admissions of a 
 party or his agent are admissible, see in/ra, 1, 3. 
 
 114. While, in proving admissions of a 
 party to a record, it is competent to prove 
 the whole conversation in which it is claimed 
 such admissions were made, it is not proper 
 in that manner to get before the jury state- 
 ments made to the party in such conversa- 
 tions as to what was said by third persons, 
 which would be mere hearsay evidence: 
 Sims V. Moore, 61-138. 
 
 115. Testimony of a witness as to acts of 
 prosecuting witness in pointing out the place 
 where the crime was alleged to have been 
 committed, held improper as hearsay : State 
 V. Stubbs, 49-203. 
 
 116. Evidence admitted in a particular 
 case, held to be hearsay and improperly re- 
 ceived : District T'p v. Morehead, 51-99. 
 
 117. A physician's certificate as to in- 
 sanity, forwarded with the admission papers 
 when a patiett is sent to the insane asylum, 
 being made up from information gained 
 from the relatives of the patient and other- 
 wise, is hearsay evidence and therefore not 
 admissible on the question of insanity : But- 
 ler V. St. Louis L. Ins. Co., 45-93. 
 
 118. A physician's statements as to the 
 cause of death and the nature and cause of 
 the iUuess from which it results are not ob- 
 jectionable as being hearsay, although his 
 information may have been based upon 
 inquiries made of the patient at the time of 
 the sickness : Wilkinson v. Connecticut Mut. 
 L. Ins. Co., 80-119. 
 
 110. The Itnowledge of an administrator 
 
 obtained by him as such, with reference 
 to the interest of the estate and rights of 
 the decedent in land, etc., is not to be con- 
 sidered as hearsay: Stewart v. Chadwick, 
 8-463. 
 
 1^0. Letters: Evidence of a wife who sub- 
 sequently remarried, that, being unable to 
 read, some one read to her a letter purporting 
 to be from a person whom she did not know, 
 stating that her husband was dead, held to 
 be liearsay and inadmissible to establish the 
 legality of the second marriage: State v. 
 Henke, 58-457. 
 
 121. Where it was material to defendant's 
 case to show that a judgment had been paid, 
 and he testitied that it had, but on cross-ex- 
 amination it appeared that his only means of 
 information w£is a letter and a telegram just 
 received, held, that his testimony was incom- 
 petent as being hearsay: Vogel v. Mossier, 
 51-360. 
 
 122. Pedigree: Hearsay evidence in re- 
 gard to pedigree being the best evidence 
 which the nature of the case admits is ad- 
 missible, but such statements should be lim- 
 ited to the nearest relatives of blood or 
 marriage, who are generally best acquainted 
 with the facts they state : Webster v. Reid, 
 Mor., 467. 
 
 123. Heirship; death of ancestor: The 
 death of an owner of real property, and heir- 
 ship of persons convej-ing such property as 
 heirs, cannot be proven by general reputation 
 among the relatives and family of the de- 
 ceased person and in the place of his former 
 x-esidence : Ross v. Loomis, 64r-432. 
 
 124. Hearsay evidence is uniformly held 
 incompetent to establish any specific fact 
 which in its nature is susceptible of being 
 proved by witnesses who can speak from 
 their own knowledge : Ibid. 
 
 125. Fact of death: Evidence of general 
 repute in the neighborhood of a person's 
 former residence is not sufficient to establish 
 the fact of death of such person : Ibid. ; State 
 V. Wright, 70 . 
 
 126. Information: Where the question is 
 upon what information and under what cir- 
 cumstances an act was done, statements 
 made to a party in consequence of which he 
 acted may be proven and ax-e not hearsay : 
 Van Tuyl v. Quinton, 45^59. 
 
C54 
 
 EVIDENCE, I, 2, b, c. 
 
 Hearsay ; testimony in another trial ; proceedings in other cases. 
 
 127. Interpreter: Where a contract is 
 made between two parties by means of an 
 interpreter, he is to be regarded as the agent 
 of each party in the transaction, and one of 
 them may testify as to the terms of the con- 
 txact as made with him througli such inter- 
 preter : McCormicks v. Fuller, 56-43. 
 
 128. Statements on personal knowledge: 
 Where the answers in a deposition purport 
 to be on personal knowledge, they cannot be 
 rejected on the ground that they are hearsay 
 and are based on entries in books of account : 
 Overman v. Hibbard, 30-115. 
 
 b. Testimony of witness in another 
 trial. 
 
 129. When receivable: The testimony of 
 a witness on a former trial is not admissible 
 where the witness is not dead and it is not 
 shown that he is beyond the reach of a 
 subpoena and that proper diligence has been 
 exercised to procure his attendance or testi- 
 mony : Slusser v. Burlington, 47-300. 
 
 130. The testimony of a deceased witness 
 given in a former action between the parties 
 may be proven : Packard v. McCoy, 1-530. 
 
 131. There is no rule re:iuiring notice to 
 be given of the intention to ofifer in evi- 
 dence a deposition taken in a previous cause 
 between the same parties in relation to the 
 same subject-matter, before the commence- 
 ment of the trial in which it is offered: 
 Shaul V. Brown, 28-37. 
 
 132. Minutes of the testimony before a 
 grand jury are not receivable as original evi- 
 dence on the trial of defendant under indict- 
 ment by such grand jury : State v. Ostrander, 
 18^35. 
 
 133. Neither are such minutes admissible 
 for the purpose of impeaching a witness 
 examined before the grand jury : State v. 
 Hay den, 45-11. 
 
 134. But such minutes may be used by the 
 witness for the purpose of refreshing his 
 recollection: State v. Miller, 53-154: State 
 V. Miller, 58-209. 
 
 135. Statements of defendant upon pre- 
 liminary examination are not receivable in 
 evidence : State v. McLaughlin, 44-82. 
 
 136. The transcript of the shorthand re- 
 porter's notes of the evidence on a former trial 
 is not admissible in a law action without a 
 
 showing of a reason for not producing the 
 witness himself. The transcript cannot be 
 received except under circumstances which 
 would make the deposition of the witness 
 admissible upon statutory gi-ounds: Bald- 
 u-in V. St. Louis, K. & N. R. Co., 68-37. 
 
 137. Proof of former testimony: A wit- 
 ness called to testify as to the testimony of a 
 witness in a preceding trial, who is since de- 
 ceased, may so testify, if he undertakes and 
 shows himself competent to give the sub- 
 stance of aU the testimony of such witness: 
 Small V. Chicago, R. I. & P. R. Co., 55-582; 
 State V. Fitzgerald, 63-268. 
 
 138. It is not required that a witness testi- 
 fying as to the testimony given on a former 
 trial by a witness since deceased shall repeat 
 the precise words used by such witness. The • 
 substance of the testimony is all that can bo 
 required: Rivereau v. St. Ament, 3 G. Gr., 
 118; Woods V. Gevecke, 28-561. 
 
 139. One called to give the testimony of a 
 deceased witness must be able to state all 
 that was said on the pai'ticular subject, not 
 only upon the examination in chief, but upon 
 cross-examination also, and if it appears that 
 he is not able to do so, his testimony should 
 be entirely excluded : Harrison v. Charlton, 
 43-573. 
 
 140. Where it appears that the witness tes- 
 tifying as to the former testimony of a de- 
 ceased witness is not able to state all of sucli 
 testimony, the testimony so far as given 
 should be excluded from the jury on motion: 
 Fell V. Burlington C. R. & M. R. Co., 43-177, 
 
 c. Proceedings i/n other cases. • 
 
 141. Not admissible as against persons 
 not parties nor privies: A judgment record 
 is not receivable in evidence as 'against one 
 who is not a party to the proceeding : Arnold 
 V. River R. Const. Co., 35-99; Preston v. 
 Turner, 86-671. 
 
 142. Where intervener was seeking to 
 overthrow plaintiff's attachment lien on tlie 
 ground that the real property attached be- 
 longed to intervener instead of to defendant, 
 held, that a decree in another state which, as 
 between the intervener and defendant, estab- 
 lished the title in the former, was not admis- 
 sible in evidence as against plaintifE who was 
 not a party thereto: McBride v. Ham, 48- 
 151. 
 
EVIDENCE, I, 3, c; 3, a. 
 
 655 
 
 Proceedings in other cases, — Admissions and confessions. 
 
 143. In an action by a widow against the 
 administrator of her deceased husband's 
 estate for rents and profits on her dower in- 
 terest in decedent's land, held, that the record 
 in a partition proceeding between her and 
 the lieirs of decedent, to which the adminis- 
 trator was not a- party, was competent in evi- 
 dence for the purpose of showing lier title ; 
 Senat v. Findley, 51-20. 
 
 As to the conclusiveness of judgments as 
 against parties, privies, etc.. see Judgments, 
 
 ir, d. 
 
 The record of the trial of an assault as a 
 criminal offense is not admissible in a civil 
 action for assault : See Assault, § 3. 
 
 144. Testimony in former proceeding: 
 The deposition of a witness introduced in an 
 action may be used in evidence in a subse- 
 quent action between the same parties or 
 their privies, if the circumstances are such 
 as to make the use of the deposition of such 
 witness proper in the subsequent cause : At- 
 kins V. Anderson, 63-739. 
 
 145. Testimony of a defendant in a pro- 
 ceeding auxiliary to execution, held not 
 admissible as against his co-defendant in 
 another proceeding to subject certain prop- 
 erty to the payment of the judgment : Ham- 
 ilton V. Lightner, 53-470. 
 
 As to when the testimony of a witness on 
 a former trial may be shown, see supra, 
 §§ 139-140. 
 
 146. The pleadings in another case are not 
 admissible as against parties who are not 
 parties to such action : Hunt v. Daniels, 15- 
 146. 
 
 147. Part of record : Where the record of 
 one cause is introduced in evidence in an- 
 other, any paper pertaining to the first which 
 constitutes a portion of such record is admis- 
 sible : Baker v. Mygatt, 14-131. 
 
 148. In an action for malicious prosecu- 
 tion, the recommendation of the jury in the 
 prosecution, that costs should be taxed to the 
 pi'oseouting witness because the prosecution 
 was malicious, is not admissible in evidence: 
 Bays V. Herring, 51-286. 
 
 As to what is to be deemed a part of the 
 record, see Courts, g§ 177-179. 
 
 Statements by a party or his attorney in 
 the pleadings or proceedings in a case may 
 be shown in another case, as admissions: 
 See infra, §§ 168-173. 
 
 3. Admissions, confessions and deda- 
 rations; res gestm. 
 
 a. Admissions of parties and privies; 
 confessions. 
 
 149. Weight of admissions: The law 
 
 recognizes admissions as weak and unsatis- 
 actory evidence :, Wilmer v. Farris, 40-309. 
 
 150. Such evidence is always received 
 with caution by the court. At least, it is 
 not always the most reliable character of 
 evidence : Wilhelmi v. Thorington, 14-537. 
 
 151. No species of testimony is more dan- 
 gerous or received with greater caution than 
 evidence of admissions made by the opposite 
 party : Cooper v. Skeel, 14^578. 
 
 152. Admissions consisting of loose and 
 random conversations constitute weak and 
 unsatisfactory evidence and should be re- 
 ceived with great caution, but if deliberately 
 made and precisely identified, they may 
 become evidence of the most satisfactory 
 nature : Wallace v. Berger, 14-183. 
 
 153. Evidence of admissions being mere 
 repetition of oral statements, and being there- 
 fore subject to much imperfection and mis- 
 take through misunderstanding, excitement, 
 or impulse of the party, or want of proper un- 
 derstanding of the words by the hearers and 
 their imperfection of memory, should be cau- 
 tiously received, but when such admissions 
 are deliberately made or oft repeated and 
 are correctly given, they are often the most ■ 
 satisfactory evidence : Martin v. Algona, 40- 
 390. , 
 
 154. The. fact that only a part of the con- 
 versation in which an admission is made can 
 be proved will not warrant the instruction 
 that such evidence is entitled to little weight. 
 The weight to be attached to such admission 
 must depend upon the circumstances : State 
 V. Elliott, 15-73. 
 
 155. Admissionsof insane person: Aman 
 with so little mind that he is not capable of 
 knowing anything about his business cannot 
 bind himself by admissions : Lines v. Lines, 
 54-600. 
 
 156. When admissible: The statements or 
 admissions of a party to the record ai-e always 
 admissible against him: Blake v. Barrett, 
 61-79. 
 
 157. And this applies to all oases where 
 
656 
 
 EVIDENCE, I, 3, a. 
 
 Admissions of parties and privies ; confessions. 
 
 the party has any interest, however the 
 interest may appear and whatever may be 
 its relative amount. The only qualification is 
 that the interest must exist at the time the ad- 
 mission is made: Schmid v. Kreismer, 31-479. 
 
 158. Where it is matei-ial to shovs- that a 
 party had knowledge of the falsity of repre- 
 sentations made by him, statements with 
 reference to the matter made to third persons 
 soon after the false representations are com- 
 petent: Jones V. Hopkins, 32-503. 
 
 159. If the language of a party, whether 
 written or oral, is shown for the purpose of 
 establishing an admission, the party may tes- 
 tify as a witness with reference to his under- 
 standing of its import, and state its true 
 meaning in the connection in which it is 
 used : Mickey v. Burlington Ins. Co. , 35-174. 
 
 160. The admissions of nn aUministrator 
 are therefore admissible in an action against 
 him: Schmid v. Kreismer, 31-479. 
 
 161. The statutory provision that the ad- 
 ministrator shall not adtnit claims until the 
 claimant has sworn to their correctness (Code, 
 § 3408) is not intended to abrogate the gen- 
 eral rule admitting in evidence the declara- 
 tions or admissipns of a party to the record, 
 and does not prevent the admissions of an 
 administrator being shown in a case to which 
 he is a party : McKenzie v. Kitler, 27-254. 
 
 162. Bank book : A bank book in which 
 the cashier of the bank enters deposits, and 
 which is kept by the depositor as evidence 
 thereof, constitutes evidence of such deposits 
 not lightly to be overcome : Hall v. Farmers', 
 etc.. Savings Bank, 55-612. 
 
 163. Letters: Certain letters of a defend- 
 ant relating to the cause of action, and tend- 
 ing when unexplained to show his liabiMtj, 
 held properly admissible in evidence, although 
 an explanation offei-ed by him, if true, de- 
 prived them of any weight : Hess v. Wilcox, 
 58-380. 
 
 164. Letters received from a person through 
 the mail are admissible as evidence that he 
 was, at the time of writing, at the place 
 where the letters are dated : Names v. Names, 
 67-383. 
 
 165. Account: Proof of an admission of 
 the correctness of an account must be ac- 
 cepted as showing an admission that it was 
 correct in every part : Keller v. Jackson, 58- 
 629. 
 
 166. Payment of interest may be shown 
 as tending to establish an admission of the 
 validity of the indebtedness upen which the 
 interest is paid : Floyd County v. Morrison, 
 40-188. 
 
 167. The delivery of a written memo- 
 randnm by one party to another constitutes 
 an admission of the matter stated in the 
 memorandum although it is not written or 
 signed by the person delivering it : Snyder v. 
 Reno, 38-329. 
 
 168. Pleadings: A pleading filed by a 
 party or his attorney in a suit is competent 
 evidence as an admission against him, in a 
 subsequent suit, the presumption being that 
 it was filed by his authority : Ayres v. Hart- 
 ford F. Ins. Co., 17-176. 
 
 169. A party is bound by statements or 
 admissions of the pleadings upon which he 
 tries the cause, and when he withdraws a 
 pleading it may be introduced in evidence 
 against him ; but when so introduced, it has 
 only such force and effect as evidence as any 
 other written statement of facts made by him 
 or his authority would have. It is not abso- 
 lutely binding upon him, but he may show 
 that the admissions contained in it were 
 made inadvertently or by mistake. Its 
 weight, like that of any other instrument of 
 evidence, is to be determined by the jury : 
 Raridan v. Central Iowa R. Co., 69-527. 
 
 Further as to admissions m pleadings, see 
 Pleadings, XIV, a. 
 
 1 70. Admissions of an attorney in oruer 
 to bind his client must be distinct and formal, 
 and made for the express purpose of dispens- 
 ing with formal proof of a fact at the trial. 
 Those which occur in mere conversations, 
 though they relate to matters in issue in the 
 case, cannot be received in evidence against 
 the client : Treadway v. Sioux City & St. P. 
 R. Co., 40-526. 
 
 171. Admissions upon tiie trial of a case 
 before a referee are receivable in evidence as 
 against the party making them in the court 
 in which the referee was appointed : Jones v. 
 Clark, 37-586. 
 
 172. Admissions made in court by the 
 defendant in a criminal prosecution, that he 
 has no means to employ counsel, may be in- 
 troduced in evidence as an admission of that 
 fact if it becomes important to any issue in 
 the case : State v. Fooks, 65-196. 
 
EVIDENCE, I, 3, a. 
 
 657 
 
 Admissions of parties and privies ; confessions. 
 
 1 73. Plea of guilty of a charge of assault 
 and battery may be shown as evidence in a 
 civil action to recover damages for such as- 
 sault and battery. The entry in the docket 
 of the justice, which is the judicial record of 
 such plea, is competent evidence to prove it. 
 The defendant is not entitled to prove a 
 statement made at the time of entering such 
 plea vrith reference to the transaction : Root 
 V. Sturdivant, 70 . 
 
 As to admissions in criminal cases, see 
 Ceiminal LiAW, III, 13, d. 
 
 1 74. Admissions with reference to liabil- 
 ity on contract: Where it was souglit to 
 establish a contract by virtue of which 
 p'aintiflf, who had been in the employ of 
 defendant, was to remain unemployed, sub- 
 ject to the call of defendant, and receive the 
 same wages as he had been receiving, held, 
 that proof of declarations of defendant when 
 work was stopped, that the time of the em- 
 ployees should go on the same as if they 
 were working, were admissible as corrobo- 
 rating the testimony of plaintiff that defend- 
 ant agreed to pay him as alleged : Wiley v. 
 Griswold, 41-375. 
 
 175. In an action upon a contract to be 
 performed from month to month, bills that 
 have been allowed and paid are admissible 
 to show a recoj;nition of liability thereon and 
 the extent of the performance from month 
 to month: Davenport Gas, etc., Co. v. Dav- 
 enport, 18-239. 
 
 170. Admissions by makingr same claim 
 against aiiolher: In an action to recover for 
 services alleged to have been rendered by 
 plaintiff to defendant, defendant may show 
 that compensation for such services was 
 claimed by plaintiff in an action against a 
 third person, and the judgment rendered 
 against such third person in favor of plaint- 
 iff is admissible in evidence : De Forrest v. 
 Butler, 63-78. 
 
 177. The fact that a charge for certain 
 goods sold is made against a certain person 
 by the seller in his books of account is prop- 
 ■erly admissible to show the intention of the 
 seller to give credit to the person against 
 wliom the charge is made and not to another : 
 Hale V. Gibbs, 43-880. 
 
 178. While books of account are admis- 
 sible in evidence against a person keeping 
 them to show that he did not therein charge 
 
 Vol. 1—43 
 
 a party sought to be held, they are not ad- 
 missible in his favor to prove that he did in- 
 tend to hold such party : McNamara v. Dratt, 
 40-413. 
 
 179. Admissions in another proceeding: 
 Where it was sought to show want of consid- 
 eration in a note given for the purchase 
 money of land by proof that the considera- 
 tion had failed, by reason of breach of cove- 
 nant consisting in the existence of a prior 
 claim upon the land, held, that proof that, 
 in a former case involving the validity of 
 such claim, it had been released, was suffi- 
 cient to defeat any such alleged defense: 
 Dawson v. Graham, 48-134. 
 
 180. Where defendant denied under oath 
 his signature to a certain note, held proper 
 to require him to testify whether he had not 
 permitted judgments to be rendered against 
 him on other notes of the same kind given in 
 the same transaction, and negotiated a settle- 
 ment of such claims : McDonald v. Noonan, 
 50-83. 
 
 181. Admission by giving note: Where 
 defendant set up, in an action on certain 
 notes given for the purchase price of a ma- 
 chine, a claim for damages on a breach of 
 warranty, which occurred before the execu- 
 tion of the notes, held, that whUe the execu- 
 tion of the notes was presumptive evidence 
 that the claim for breach of warranty did not 
 then exist, it was not conclusive and might 
 be explained: Aultman v. Wheeler, 49-647. 
 
 lSi2. Rules of a railroad coiupnny pro- 
 mulgated for the control of its engineers and 
 firemen in handling cars, etc., held admis- 
 sible in an action against the company for 
 negligence of the engineer in lacking his 
 train: Beems v. Chicago, M. I. <& P. JR. Co., 
 58-150. 
 
 183. Declar.ationsasto value of services: 
 In an action against the executor for care 
 of deceased during his sickness, held, that 
 declarations of plaintiff as to what he thought 
 his care worth and what he should charge 
 for Jiis services were admissible against him, 
 although such declarations might not estop 
 him from recovering more : Shafer v. Dean, 
 39-144. 
 
 184. AVhere a party seeks to recover com- 
 pensation for services alleged to have been 
 rendered under an implied contract, evidence 
 of his declaration about the time he began 
 
658 
 
 EVIDENCE, I, 3, a. 
 
 Admissions of parties and privies ; confessions. 
 
 to render the services, that he intended to 
 charge therefor, is not admissible in liis favor : 
 Van Sandt v. Cramer,, 60-424. 
 
 185. Off ir to arbitrate or settle : An offer 
 to arbitrate is not an admission of liability : 
 Mundhenk v. Central Iowa B. Co., 57-718. 
 
 186. The fact that plaintiff has proposed 
 to settle his demands for a sum' less than the 
 claim made in the suit will not preclude him 
 from recovering a greater amount : Brush v. 
 Sabula, A. & D. R. Co., 43-554. 
 
 187. Offers or propositions between litigant 
 parties, expressly stated to be made without 
 prejudice, cannot be introduced in evidence. 
 They are excluded on the ground of public 
 policy. But a tacit admission in an action 
 on a note that defendant was liable thereon, 
 and an offer to pay the balance due, after de- 
 ducting the amount of an alleged payment, 
 Tield proper to be shown, it being in no sense 
 an offer to pay money to buy peace, but an 
 offer to pay an amount admitted to be due, 
 and containing no suggestion that the offer 
 was confidential: Bayliss v. Murray, 69-290. 
 
 188. Offer to compromise criminal pros- 
 ^ecution: Evidence that prosecutrix in a 
 prosecution for rape, and her father, offered 
 to withdraw the charge if defendant would 
 pay a sum of money, held properly refused, 
 where it did not appear that the chai-ge had 
 been wrongly made as a ground for extorting 
 money : State v. MeDeviit, 69-549. 
 
 1 89. Declarations in presence of a party : 
 In an action by an administrator of a de- 
 ceased party, declarations of a third person 
 in the presence of deceased and assented to 
 by him may be admitted to show a contract 
 on his part : Clark v. Evarts, 46-348. 
 
 190. Where statements by one of two 
 persons jointly charged with a crime are 
 made in the presence of the other while both 
 are in custody, silence of the latter and 
 failure to deny such statements will not con- 
 stitute an admission on his part of their 
 truth: State v. Weaver, 57-780. 
 
 191. Partnership books of account kept 
 by one partner, but with the knowledge of 
 the other, who has opportunity to see them, 
 are admissible in evidence in an action, be- 
 tween the partners, and both are bound 
 thereby unless they are shown to be incor- 
 rect or there is evidence that some particular 
 item is wrong : Hunter v. Aldrich, 52-442. 
 
 As to admissions by partner, see infra, 
 §§ 234-239. 
 
 192. Confessions; corroboration: Even 
 in a civil case, defendant's confession of an 
 act amounting to a crime will not without 
 corroboration be sufficient evidence as to the 
 commission of the crime: Georgia v. Kep- 
 ford, 45-48, 52. 
 
 And further as to confessions and the neces- 
 sity of corroboration, see Ceiminai. Law, III, 
 13, d. 
 
 193. Admissions of party injured, as to 
 cause of injuiT^: In an action for personal in- 
 juries, admissions of the injured party, made 
 immediately after the accident, to the effect 
 that the employees of defendant are not to 
 blame, etc. , are to be construed with great care 
 in view of all the cu-cumstances, the sufferings 
 of the person injured, whether he was in con- 
 dition to speak with mature consideration 
 and due deliberation, and whether he spoke 
 in regard to his lawful rights or referred to 
 and meant that defendant was not to blame 
 for any wilful intent to injure him and cause 
 the accident ; and such admissions are to be 
 given such meaning as it appears from all 
 the circumstances the person making them 
 intended them to have. They will not be 
 conclusive as to what he states : Cooper v. 
 Central R. of Iowa, 44^134; Funston v. 
 Chicago, R. I. & P. R. Co., 61-453. 
 
 194. An instruction that verbal admissions 
 of the person injured, made after the injury, 
 are to be received with caution, if it appears 
 that they were made immediately after the 
 injury and at the time that the person making 
 them was agitated and nervous and suffering 
 great pain, should be given with the direction 
 as to what effect should be given such ad- 
 missions, if it appears that they were delib- 
 erately made and understood at the time: 
 Hawes v. Burlington, C. R. & N. R. Co., 64- 
 315. 
 
 195. Acts, etc., as admissions: Evidence 
 that defendant in an action for damages for 
 seduction disposed of his property and left 
 the state soon after the act was discovered, 
 held not admissible. It appears that evidence 
 of the flight of defendant on the discovery of 
 a criminal act is only evidence of guilt in a 
 criminal prosecution: Hopkins v. Mathias, 
 66-333. 
 
 ■ Further as to what acts shall be deemed ad- 
 
EVIDENCE, I, 3, a, b. 
 
 659 
 
 Admissions and confessions. — Declarations admissible as part of res gestae. 
 
 missions against defendant in a criminal pros- 
 ecution, see Cmminal Law, III, 13, e. 
 
 196. Failure to testify: A statutory pro- 
 vision authorizing the court to take the alle- 
 ga.tions of a pleading as true in certain cases 
 where the opposite party has been subpcenaed 
 as a witness and fails to apjjear to give testi- 
 mony (Code, g§ 3683, 3684) does not authorize 
 the pleading to be taken as true unless the 
 court, upon application, makes an order to 
 that effect : Hay v. Frazier, 49-454. 
 
 197. Where it appears that plaintiff's mind 
 has been impaired by an accident for which 
 he seeks to recover damages, it is not error 
 to refuse an instruction that his failure to 
 testify raises the presumption that if he 
 should testify his testimony would be un- 
 favorable to his cause : Cramer v. Burling- 
 ton, 49-313. 
 
 198. In an action brought by a wife as 
 administratrix of her husband's estate for 
 damages accruing to such estate by the mui-- 
 der of her husband by defendant, held, that 
 as to the facts and circumstances within de- 
 fendant's knowledge, not constituting per- 
 sonal transactions between decedent and de- 
 fendant, the defendant was competent to 
 testify, and his failure to do so might be con- 
 sidered in evidence against him: Miller v. 
 Dayton, 57-433. 
 
 199. Failure tolntroduce evidence: The 
 failure of a party to introduce books in evi- 
 dence which are within his control, and 
 which in all probability would furnish satis- 
 factory evidence as to a question in dispute, 
 may be considered as a circumstance strongly 
 against him : Wallace v. Berger, 14-183. 
 
 200. The fact that defendant fails to intro- 
 duce a vritness who, it appears, would testify 
 to a material fact in his favor should not be 
 considered as a fact against him : Miller v. 
 Dayton, 57-433. 
 
 Further as to failure to produce evidence, 
 see Criminal Law, §§ 1424^1439. 
 
 201. Fabrication of evidence: In an ac- 
 tion for damages for the commission of a 
 crime, held, that evidence that defendant, in 
 order to avoid a criminal prosecution, fabri- 
 cated evidence that he had been murdered 
 was improperly admitted: Miller v. Dayton, 
 57-423. 
 
 202. Destruction of evidence: The de- 
 struction by the vendor of a Written contract 
 
 for sale of real estate, when the vendee is 
 pressing him for a performance thereof, is 
 presumptive evidence against a claim made 
 by the vendor that it provided for a condi- 
 tional forfeiture in his favor: Warren v. 
 Crew, 23-315. 
 
 203. Declarations by privies: An heir or 
 devisee is bound by declarations or statements 
 in a pleading made by his ancestor, and so 
 also it appears is one whose claim to the 
 property arises pendente lite; but the grantee 
 is not affected by declarations or statements, 
 of his grantor : De France v. Howard, 4^524. 
 
 204. Whenever the admissions of the ances- 
 tor would be admissible against him if living, 
 they are admissible against the heir claiming 
 under him by descent, and it is immaterial 
 whether the ancestor at the time of making 
 such admissions was in possession or not: 
 Davis V. Melson, 66-715. 
 
 205. Recitals of a deed do not bind persons 
 who are not privies of the grantor, but claim 
 adversely to him : Miller v. Miller, 63-387. 
 
 b. Declarations and acts admissible as 
 part of the res gestcB. 
 
 206. Admissibility, how determined: 
 
 The admissibility of declarations as part of 
 the res gestae is to be determined by the 
 judge in the exercise of his sound discretion : 
 Piles V. Hughes, 10-579. 
 
 207. Concurrent in time: To render dec- 
 larations admissible as a part of the res gestae, 
 it is not necessary that they should be pre- 
 cisely concurrent in point of time vrith the 
 principal transaction. It is sufficient if they 
 are nearly enough concurrent to clearly ap- 
 pear to be so spontaneous and unpremed- 
 itated and free from sinister motives as to 
 offer a reliable explanation of the principal 
 transaction : State v. Jones, 64-349. 
 
 208. Testimony as to acts subsequent to the 
 commission of the offense, lield to have been 
 improperly admitted in a particular case: 
 State V. Fowler, 53-108. 
 
 209. What deemed part of res g'estse: 
 Declarations made at the time of a transac- 
 tion, expressive of its character, motive or 
 object, are regarded as verbal acts indicating 
 a present purpose or intent, and are.there- 
 fore admissible. They are a part of the 
 res gestae; but where the declaration and the 
 
660 
 
 EVIDENCE, 1, 3, b. 
 
 Declarations and acts admissible- as part of the res gestse. 
 
 act are inconsistent, if the act goes beyond 
 the declaration or contradicts it, the pre- 
 sumption of intention is to be gathered from 
 the act: State v. Shelledy, 8-477, 606. 
 
 210. A declaration of intention made at 
 the time of doing an act may be regarded as 
 a part of it and admissible as a part of the 
 res gestcB: Tubbs v. Garrison, 63-44. 
 
 211. Where an act is done and the actor 
 at the time of the act makes a statement ex- 
 planatory of it, the statement is admissible 
 as a part of the res gestae, unless the cii'cum- 
 stances are such as to preclude the supposi- 
 tion that the statement was free from sinister 
 motives. Therefore, held, that in a prosecu- 
 tion for murder, statements of defendant 
 made to his wife at the time of leaving home 
 with a loaded revolver in his pocket, when, 
 as it was claimed, he was going to seek a 
 meeting with deceased, as to where he was 
 going and what he was going for, were ad- 
 missible, the weight of sjich evidence being 
 for the jury : State v. Cross, 68-180. 
 
 212. No absolute rule is or can be estab- 
 lished in relation to what constitutes the res 
 gestae. Where the action was to recover for 
 injuries received from a railway engine while 
 the plaintiff- was crossing the track, held, 
 that the statements made by the injured 
 party after he had been carried home, and 
 more than thirty minutes after the accident, 
 were not admissible as part of the res gestae, 
 they not being made on his own motion as 
 explanatory of either his absence or the con- 
 dition he was in : Armil v. Chicago, B. & Q. 
 R. Co., 70 . 
 
 213. Defendant's statements as to what oc- 
 curred at the time of the commission of an 
 alleged crime are competent for the reason 
 that all that occurred in connection with the 
 commission of the crime is a part of the res 
 gestae: State v. Gillett, 56-4.'59. 
 
 214. Where the issue was as to the owner- 
 ship of a stock of goods levied on, held, that 
 statements of the judgment debtor in em- 
 ploying a clerk, to the effect that he was em- 
 ployed in the business for a third person, was 
 part of the res gestae and admissible in evi- 
 dence : Sweet v. Wright, 57-510. 
 
 215. Where defendant was on trial for 
 the murder of a companion with whom he 
 was traveling by team, held, that a witness 
 who had conversed with them on the day 
 
 preceding the night when the crime was 
 committed might state as a part of the res 
 gestae what the deceased said about where 
 they had come from and where they were 
 going, although such conversation was not 
 had in the presence of accused: State v, 
 Vincent, 24-570. 
 
 216. In such case, one theory of the defense 
 being that the person supposed to have been 
 killed was hving subsequently to the time 
 charged, held, that statements of the alleged 
 deceased before leaving home, that he in- 
 tended soon to leave and never make him- 
 self known or be heard from by his family, 
 were not admissible : Ibid. 
 
 217. Where a witness in a prosecution for 
 murder testified as to having seen defend- 
 ant flourish a chair outside of the door of 
 the house of deceased, and that upon enter- 
 ing deceased sprangup and exclaimed, "Now 
 we win see whether I am to be knocked 
 down with a chair in my own house," held, 
 that such exclamation and others made by 
 deceased at that time were receivable as a 
 part of the res gestae: State v. Porter, 34^131. 
 
 218. Statements made by a burglar while 
 in the prosecution of his crime, to the effect 
 that he is the person who is afterward put on 
 trial for the crime, may be proven as part of 
 the res gestae: State v. Kepper, 65-745. 
 
 219. In an action for malpractice in the 
 setting of a limb, declarations made by the 
 physician at the time of the final examina- 
 tion and discharge of the patient, held ad- 
 missible, it appearing that they were made 
 in the presence of the patient and acquiesced 
 in by him : Piles v. Hughes, 10-579. 
 
 220. A declaration in regard to the value 
 of land made by the grantor to the grantee, 
 in connection with the delivery of the deed 
 therefor, is admissible in evidence as a part 
 of the res gestae: Wilson v. Irish, 63-260. 
 
 221. The rule that an entry which is of the 
 res gestae, and is contemporaneous with the 
 particular act done, is admissible, is not ap- 
 plicable where the matter in relation to which 
 the entry is made is the very transaction upon 
 which defendant's liability is based : Sypher 
 V. Savery, 89-258. 
 
 222. In an action of replevin, where the 
 wife of the party claiming to have purchased 
 the property in controversy was allowed to 
 testify as to a conversation she had with her 
 
EVIDENCE, I, 3, b, c. 
 
 661 
 
 Res gestss.— Declarations, admissions and acts of third persons. 
 
 husband regarding the purchase after the 
 contract was made, and in the absence of the 
 party from whom the purchase was made, 
 which conversation tended to prove both the 
 fact of the purchase and the consideration on 
 which it was based, held, that such testi- 
 mony should have been rejected as not hav- 
 ing been a part of the res gestae and not 
 within the rule which admits the declara- 
 tions of one in possession of personal property, 
 explanatory of such possession: Murray v. 
 Cone, 36-276. 
 
 223. Declai'ations of a person, made at the 
 time his property is levied upon under exe- 
 cution, are not admissible in evidence as a 
 part of the res gestce in an action by him to 
 recover property sold under such a levy: 
 Wadsworth v. Harrison, 14-272. 
 
 224. Where the issue is as to the genuine- 
 ness of a signature to a written instrument, a 
 witness who testifies that such signature 
 was written in his presence by another per- 
 son cannot testify as to what was said by 
 such other person in connection with the act, 
 as, for instance, that it was not the first time 
 that he had w ritten such signature : Farmer^ 
 Bank v. Young, 36-44. 
 
 225. Defendant seeking to show an alibi 
 cannot prove declarations made by himself 
 at a certain time as to where he had been, 
 even though such declarations were made on 
 his return to his place of residence : State v. 
 McCraoken, 66-569. 
 
 226. Declarations of persons not partici- 
 pating in the transaction in question and 
 whose motives or purposes are not involved, 
 but relating merely to what has been ob- 
 served by them, cannot be shown as evi- 
 dence of what has taken place. Such evi- 
 dence would be hearsay : Suff v. Aultman, 
 69-71. 
 
 227. In an action against a municipal cor- 
 poration for injuries resulting from a defect- 
 ive sidewalk, evidence of the condition of the 
 sidewalk at a time subsequent to the injury, 
 tending to show that the condition had been 
 changed by the city, held not admissible, for 
 the reason that it tended to show an admis- 
 sion by officers of the city that the sidewalk 
 was previously not sufficieat. and was not 
 admissible for that purpose because not con- 
 temporaneous with the injury nor a part of 
 the res gestae: Cramer v. Burlington, 45-627. 
 
 228. Declarations or acts indicating pain 
 and suffering: Declarations of one suffering, 
 as to the cause of his injury, are not com- 
 petent unless a part of the res gestce. But 
 declarations made by such a person as to the 
 nature and character of his suffering and sick- 
 ness are admissible if made while in such 
 condition : Gray v. McLaughlin, 26-279. 
 
 229. In an action for personal injuries, the 
 attending physician may testify as to the 
 declarations of the party injured with refer- 
 ence to pain and suffering : Townsend v. Des 
 Moines, 42-657. 
 
 230. The fact that a person limps, while 
 walking in the discharge of his ordinary 
 duties, is admissible as evidence of lameness 
 and to indicate an injury of the limb and its 
 extent. It is not in the nature of a declara- 
 tion by the person injured: Pringle v. Chi- 
 cago, R. I. & P. R. Co., 64-613. 
 
 231. Complaint made by the person in- 
 jured, after the time of the injury and after 
 convalescence, relating to the extent of such 
 injury, in connection with statements of his 
 as to his inability to work, etc., held, inad- 
 missible as part of the res gestce in deter- 
 mining the question of his injuries : Fergu- 
 son V. Davis County, 57-601. 
 
 232. Declarations of person injured as to 
 cause of Injury, if made at the-time of the 
 injury, are admissible in evidence as part of 
 the res gestae: Frink v. Coe, 4 G. Gr., 555. 
 
 233. But such declarations are not compe- 
 tent unless they are part of the res gestce: 
 Gray v. McLaughlin, 26-379. 
 
 As to when declarations of an agent are 
 admissible as part of the res gestce, see infra, 
 %% 340-354. 
 
 c. Declarations, admissions and acts 
 of third persons. 
 
 234. Declarations or admissions of part- 
 ner: Where the fact of partnership is not 
 shown it is not competent, as tending to 
 show that relationship, to allow the state- 
 ments of one party to be given to the jury 
 as against the other : Cook v. Robinson, 43- 
 474. 
 
 235. Declarations by one person are not 
 admissible to prove that another is or is not 
 his partner : Chambers v. Grout, 63-343. 
 
 236. The declarations of a partner, made 
 before difBculty has arisen and under in- 
 
662 
 
 EVIDENCE, I, 3, c. 
 
 Declarations, admissions and acts of third persons. 
 
 different circumstances, and for the purpose 
 of informing persons with whom the part- 
 nership is dealing and the world as to who 
 do and who do not compose the firm, are 
 receivable to show that a person sought to be 
 charged as partner is not such partner : Dan- 
 forth V. Carter, 4-330. 
 
 237. An entry on partnership books show- 
 ing a charge to an individual partner of a 
 firm note given for the purchase of property 
 is not admissible in evidence for the purpose 
 of showing that such property was purchased 
 by such individual partner for his own use : 
 Famer v. Turner, 1-53. 
 
 238. Where the issue was as to the exist- 
 ence of a partnership between certain parties, 
 held, that books of account of a third party 
 containing charges against them as a firm 
 were not admissible as against them to show 
 the partnership, it not appearing that the 
 parties directed the charges to be so made : 
 Boulton V. First Nat. Bank, 46-373. 
 
 239. The admissions of one partner will 
 not bind the firm of which he is a member, 
 unless after proof of partnership; and such 
 admissions are not evidence against the other 
 members so as to make them liable : Holmes 
 V. Budd, 11-186. 
 
 240. Declarations or admissions of agent: 
 The declarations and admissions of an agent 
 are to be regarded as made by the principal 
 and receivable in evidence against him, only 
 where it is established that the person making 
 them was in fact the agent of the party 
 against whom they are sought to be intro- 
 duced ; that they relate to matters within the 
 scope of his authority as such agent, and 
 that at the time of making them he was en- 
 gaged in the performance of some duty in 
 reference to the matter to which they relate : 
 McPherrin v. Jennings, 66-633. 
 
 241. Befoi-e the declarations of an agent 
 are admissible the party offering to prove 
 them must at least give some evidence tend- 
 ing to show that he had the power to act for 
 his principal in relation to the matter in hand 
 and that the same was within the scope of 
 his authority: Armil v. Chicago, B. & Q. R. 
 Co., 70 . 
 
 242. The authority of a supposed agent 
 cannot be established by his own declai-a- 
 tions: Ibid. 
 
 243. While the authority of a supposed 
 
 agent cannot be established by his own decla- 
 rations, yet if the agency has been otherwise 
 proved, then the declarations of the agent 
 within the scope of his authority, which con- 
 stitute a part of the transaction or res gestae, 
 are admissible : Winch v. Baldwin, 68-764. 
 
 244. Declarations of an agent while doing 
 an act in behalf of his principal are part of 
 the res gestce. Whenever the act itself is ad- 
 missible in evidence it is competent to prove 
 what the agent said while doing it : Marion 
 V. Cliicago, B. I. & P. R. Co., 64-568. 
 
 24.5. In an action against a railroad for 
 personal injuries resulting in death, heJd, 
 that evidence that defendant's agents oflfered 
 to pay the funeral expenses of deceased was 
 not material : Campbell v. Chicago, R. I. & 
 P. R. Co., 45-76. 
 
 248. Where letters signed, "Wilson Sew- 
 ing Machine Company, S," were written to 
 defendant after he was appointed to act as 
 agent for such company and in answer to his 
 letters addressed to it, and it appeared that 
 such letters were written by a special agent 
 of such company in charge of that portion of 
 its business, held, that they were admissible 
 in evidence: Wilson Sewing MacJiine Co. v. 
 Sloan, 50-367. 
 
 247. An agent authoi-ized to collect a note 
 is not thereby authorized to bind his principal 
 by admissions as to whether a certain word 
 therein constituted an alteration or not: Van 
 Vechten v. Smith, 59-173. 
 
 248. Where the seller of a patent-right had 
 in company with him at the time of effecting 
 a sale of such right a person who made rep- 
 resentations to the buyer with reference to 
 such patent, and in the presence of and with- 
 out the objection of the seller, held, that the 
 seller was bound by such representations: 
 Foster v. Trenary, 65-630. 
 
 249. To be binding, the declarations of the 
 agent must be within the scope of the agency 
 and constitute a part of the res gestce. There- 
 fore, held, that the declarations of a telegraph 
 operator, made from one to three days after 
 the delivery of the message in question, were 
 not competent or admissible in an action 
 against the company : Sweatland v. Illinois 
 & M. Tel. Co., 37-433. 
 
 250. Declarations made some time after 
 the injury, by a railway engineer, while still 
 in the employ of the company, as to the cause 
 
EVIDENCE, I, 3, o. 
 
 663 
 
 Declarations, admissions and acts of third persons. 
 
 of the injury, are not admissible : Treadway 
 V. Sioux City & St. P. R. Co., 40-536. 
 
 251. The fact of subsequent repairs made 
 by a city in a street at a place where an ac- 
 cident happened for which it is sought to 
 hold it liable cannot be shown as an admis- 
 sion of negligence on the part of the city in 
 reference to the condition of the street at the 
 time of the accident. Such acts by officers, 
 in order to bind the corporation as an ad- 
 mission, must be not only within the scope of 
 their authority, but contemporaneous with 
 the injury complained of and part of the 
 res gestce: Cramer v. Burlington, 45-627. 
 
 252. So held, also, as to subsequent repairs 
 by railway employees made at a railway 
 crossing where an accident had happened for 
 which it was sought to hold the company 
 liable: Hudsmiv. Chicago & N. W. R. Co., 
 59-581. 
 
 253. Where a levy upon property was 
 made in the absence of the owner, held, that 
 the acts and declarations of his son, not 
 shown to be authorized to act as his agent, 
 were not binding upon him: Parsons v. 
 Thomas, 63-319. 
 
 254. In an action for a bounty offered by 
 the county for enlistment through a com- 
 mittee, held competent to show that the com- 
 mittee acted, by proving what a member of 
 the committee said, while in the discharge of 
 his duty, though the conversation was after 
 the enlistment: Keough v. Scott County, 28- 
 337. 
 
 Further as to declarations and admissions 
 of agent, see Agenct, III, c. 
 
 255. Trustee: The admissions of a trustee 
 of a subscription fund, held not binding as 
 against the party receiving the proceeds of 
 such fund under contract with such trustee : 
 Sypher v. Savery, 39-258. 
 
 256. Statements of co-maker of a note 
 at the time of its deUvery in regard to the 
 signature of the other maker are not admis- 
 sible in evidencb as against the latter: Smith 
 V. Wagaman, 58-11. 
 
 257. Admissions of prosecutor in a 
 prosecution for malicious mischief to prop- 
 erty are not receivable in behalf of defend- 
 ant: State V. Belong, 12-453. 
 
 258. Declar.itions of co-conspirators: 
 Where it is sought to introduce the admis- 
 sions of one person as evidence against an- 
 
 other claimed to have been jointly connected 
 in an unlawful enterprise, the foundation 
 must be laid by proving such unlawful con- 
 nection and that the alleged declarations 
 were made during the pendency of the crimi- 
 nal enterprise : Forshee v. Abrams, 2-571. 
 
 259. An admission of one conspirator to be 
 binding upon the other must be made during 
 the existence of the conspiracy and in aid of 
 the common design : Johnson v. Miller, 63-529. 
 
 200. Although declarations of one of two 
 or more parties engaged in a common pur- 
 pose are admissible, yet the fact that they 
 were united in a common purpose must be 
 made out by other evidence: De France v. 
 Howard, 4-524. 
 
 261. In order to render the acts and dec- 
 larations of one party admissible against the 
 other on the ground that they were co-con- 
 spirators, such conspiracy must be made out 
 by other evidence than that which shows the 
 act or declaration. The declarations are to 
 be received only upon a conspiracy being 
 first proved : Wiggins v. Leonard, 9-194. 
 
 262. Where it is sought to introduce acts or 
 admissions of an alleged co-conspirator as 
 against defendant, it is for the court to de- 
 termine in the first instance whether there is 
 suflicient prima facie evidence of a conspir- 
 acy to justify a submission to the jury of 
 such acts and declarations, and then it is ul- 
 timately for the jury to determine whether 
 upon the whole testimony a conspiracy has 
 been shown. If they find no conspiracy has 
 been established, it is then their duty not to 
 consider such acts and declarations of the 
 supposed co-conspirator: Miller v. Dayton, 
 57-433. 
 
 263. Where it was alleged that a third 
 person had conspired with the defendant to 
 commit a crime and prevent suspicion from 
 attaching to defendant and enable him to es- 
 caije justice, held, that upon suf&cient evi- 
 dence of such conspiracy, the acts and 
 declarations of the co-conspirator after the 
 completion of the crime were receivable in 
 evidence against the defendant : Ibid. 
 
 264. Where it appeared that there was no 
 evidence tending to show conspiracy on the 
 part of defendants jointly indicted for mur- 
 der prior to the time of the commission of 
 the homicide, held, that decimations of one 
 of the defendants, made before the commis- 
 
664 
 
 EVIDENCE, I, 8, d. 
 
 Declarations as to title, ownership, possession, etc. 
 
 sion of the crime, were not receivable against 
 the other: State v. Weaver, 57-730. 
 
 SJG5. Declarations of one of the parties 
 after the completion of the crime contem- 
 plated in the alleged conspiracy are not ad- 
 missible: Ibid. 
 
 266. Where a declaration or confession 
 made by a prisoner before arrest is confirmed 
 by acts and declarations of his co-defendant, 
 though made after the commission of the 
 alleged offense, such acts and declarations 
 are admissible in evidence against the pris- 
 oner as a circumstance tending to prove his 
 confession : State v. Knight, 19-94. 
 
 d. Declarations as to title, ownership, 
 possession, eta. 
 
 267. Party in possession: The declarations 
 of a party while in possession of personal 
 property, explanatory of such possession, as, 
 for instance, that he holds in his own right or 
 as agent, etc., are competent: Stephens v. 
 Williams, 46-540; Hardy v. Moore, 62-65; 
 Blake v. Graves, 18-313; Ross v. Hayne, 3 
 G. Gr., 211. 
 
 268. But such declarations must be made 
 at the time of possession and must be ex- 
 planatory of it, and not in regard to a con- 
 tract under which the possession is held: 
 Taylor V. Lusk, 9-444. 
 
 269. Declarations made not merely as to 
 the right in which the party is holding the 
 property, but as to the nature of an agree- 
 ment between him and another person under 
 which he holds the property, are not admis- 
 sible : Sweet v. Wright, 57-510. 
 
 270. Declarations made by a party in con- 
 nection with his entry upon land respect- 
 ing the object for which such entry is made 
 are admissible as part of the res gestae: 
 Stephens v. McCloy, 36-659. 
 
 271. Declarations of a party in possession 
 of property are admissible for the purpose of 
 showing in what capacity he is in possession. 
 Declarations of persons in possession of prop- 
 erty in regard to the origin and nature of 
 such possession are admissible: Wilson v. 
 Irish, 63-260. 
 
 272. Declarations of a deceased person, 
 made while holding legal title to property, in 
 disparagement of his title or explanatoi'y of 
 the character thereof, are admissible to show 
 
 that he held as trustee, as against persons 
 claiming a legal title under him: Eobinsmi 
 V. Robinson, 23-437. 
 
 273. The declaration of an agent accom- 
 panying an act of possession of property may 
 be received as a part of the res gestae, but the 
 mere general admission on the part of the 
 agent that he has purchased certain property 
 for his principal is not a part of the res gestae, 
 and is not admissible in evidence in behalf of 
 the principal to establish title to the property 
 as against one claiming under an attach- 
 ment against the agent : Howell v. Price, 40- 
 548. 
 
 274. Declarations of party after parting 
 Tritli property: The declarations or admis- 
 sions of one who has ceased to have title to 
 certain real estate, made in the absence of the 
 holder of the title, are not admissible in evi- 
 dence to impeach the latter's title : O'Neil v. 
 Vanderburg, 35-104. 
 
 275. Declarations by a party in possession 
 of property after he has pai'ted with his right 
 are not admissible to affect one claiming un- 
 der him : McCormicks v. Fuller, 56-43. 
 
 276. Declarations of the seller of personal 
 property, after the sale and after he has 
 parted with possession, are not admissible 
 against the purchaser to prove that the sale 
 was fraudulent : Keystone Mfg. Co. v. John- 
 son, 50-142. 
 
 277. Statements made to a person acquir- 
 ing possession of property with reference to 
 such possession may be shown by the person 
 acquiring such possession, where he seeks to 
 show that it was lawful: State v. Jordan, 
 69-506. 
 
 278. Grantor or vendor: The grantee of 
 property is not affected by statements or 
 declarations made by his grantor after the 
 conveyance : De France v. Howard, 4-524 
 
 279. Declarations of a vendor not in pos- 
 session are not admissible to affect the vendee 
 or a person claiming under him: Benson v. 
 Inndy, 53-365. 
 
 280. It is not sufficient prima facie evi- 
 dence of title to show possession under a 
 conveyance without proving title in the 
 grantor in such conveyance: Costello v. 
 Burke, 63-361. 
 
 281. Eecitals in a deed to the effect that 
 the grantors therein are heirs at law of the 
 holder of the title are not evidence sufficient 
 
EVIDENCE, I, 3, e, f. 
 
 665 
 
 Declarations or entries in course of official duty ; by persons since deceased. 
 
 to establish prima facie title in the grantee 
 under such convej-anoe : Ibid. 
 
 282. A recital in a deed that the grantors 
 are the widow and heirs of a person in whom 
 the title to the property thei-ein described ex- 
 isted is not competent as against one claim- 
 ing under a conflicting chain of title, in the 
 absence of evidence that at the time of such 
 conveyance the original owner was dead and 
 that the grantors were his heirs: Ross v. 
 Loomis, 64-433. 
 
 283. Fraudulent grantor: Declarations 
 or admissions made by the fraudulent grantor 
 are not admissible in an action to set aside a 
 conveyance as fraudulent: Bixbyv. Carskad- 
 don, 70 . 
 
 e. Dedaraiions in the course of offi- 
 cial duty. 
 
 284. What admissible: It being by law 
 the duty of the secretary of a district town- 
 ship to keep a register of all orders drawn on 
 the district treasurer, showing the number, 
 date, etc., such register is receivable in evi- 
 dence where the amount of indebtedness of 
 the district township is in controversy: 
 Wormley v. District T'p, 45-666. 
 
 285. The record of the proceedings of a 
 sub-district, duly signed by the chairman and 
 secretary, although not required by law to 
 be kept, are competent evidence as to the ac- 
 tion of such meeting : Rose v. Hindman, 36- 
 160. 
 
 286. Where the issue was as to whether 
 the execution upon a pretended judgment 
 before a justice of the peace was legally is- 
 sued, the docket of the justice, not showing 
 the rendition of any judgment in the case, is 
 admissible in evidence as tending to show 
 that no judgment was rendered : Dupont v. 
 Douming, 6-173. 
 
 287. As a general rule, corporate books 
 are evidence of the acts or proceedings of the 
 corporate body, where it appears that the 
 same are kept by the proper officer or some 
 one authorized to keep the books in his tem- 
 porary absence : St. Louis & C. R. R. Co. v. 
 Eakins, 30-379. 
 
 288. The records of a hospital for the 
 insane, kept by an assistant physician, and 
 not shown to be kept in pursuance of any 
 authority or in the performance of any duty, 
 
 held not admissible on the question as to the 
 insanity of a patient : Butler v. St. Louis L. 
 Ins. Co., 45-93. 
 
 289. Statements made by an officer, in a 
 return of execution, of acts which are no 
 part of his official duty, are not receivable as 
 evidence of such acts : Wiokersham v. Reeves, 
 1-413. 
 
 290. The books of an assessor cannot be 
 introduced as evidence of ownership of prop- 
 erty, at the time of assessment, in a person 
 to whom it is assessed: Adams v. Hiekox, 
 55-633. 
 
 f. Declarations or entries made iy a 
 person since deceased. 
 
 291. Against interest: Verbal declarations 
 of one deceased, against his pecuniary inter- 
 est, in relation to facts of which he is imme- 
 diately and personally cognizant, and made 
 under circumstances excluding a probable 
 motive to falsify, are admissible as evidence 
 in an action against third persons : Mahaska 
 County V. Ingalls, 16-81. 
 
 292. Entries in books made by a person 
 who is deceased are admissible as evidence 
 when clearly against his interest. Whether 
 they must be made at or near the time of the 
 transactions entered, qucere. But they are 
 inadmissible to prove the absence of other 
 entries, when the omission would be favor- 
 able to the party making the entries: State 
 V. Wooderd, 20-541. 
 
 293. Where entries are offered as being 
 against the interest of the party making 
 them, such interest should be made clearly 
 to appear : Ibid. 
 
 294. The jury may be told that testimony 
 of this kind, though competent, yet as the 
 right of cross-examination does not exist, is 
 not highly favored by the law : Ibid. 
 
 295. Declarations of a deceased witness 
 against his interest are receivable in evi- 
 dence : Scott County v. Fluke, 34^317. 
 
 296. Therefore in an action against a 
 county treasurer, held, that the admissions of 
 an assistant employed by the board of super- 
 visors and for whom the treasurer was not 
 responsible, to the efEect that the misappro- 
 priation of funds was due to his own defalca- 
 tion, were admissible : Ibid. 
 
 29 7. But declarations of a deceased witness 
 
666 
 
 EVIDENCE, I, 3, g. 
 
 Entries in books of account. 
 
 not against his interest are not receivable, 
 although they directly tend to contradict 
 declarations made by him against his inter- 
 est: Wilson V. Patrick, 34-362. 
 
 298. Entries in books of account made by 
 third persons are only admissible where it is 
 shown that the party making them is dead 
 and that the entries are against his interest : 
 Sypher v. Savery, 39-258. 
 
 299. Dying declarations are admissible as 
 such only in case of homicide, where the 
 death of the deceased is the subject of the 
 charge and the circumstances of the death 
 are the subject of the declaration. They are 
 not admissible in an action by an heir to prove 
 that property conveyed to him by the ances- 
 tor making the declarations was not by way 
 of advancement: Middleton v. Middleton, 
 81-151. 
 
 As to dying declarations, see Criminal 
 Law, III, 13, g. 
 
 300. Deel.irations of a living' -n-itness 
 who is competent and within the reach of 
 process are hearsay and not admissible: 
 Hutchinson v. Watkins, 17-475. 
 
 301. Family records: An entry by a de- 
 ceased parent in the family Bible as to the 
 date of birth or death of an individual is ad- 
 missible as the declaration of the parent mak- 
 ing the entry, but it must appear that such 
 parent is dead : Greenleaf v. Dubuque & S. 
 C. S. Co., 30-301. 
 
 g. Entries in hooks of account. 
 
 302. To prove charges in ordinary course 
 of business : Books of account are admissible 
 to prove charges by one party against the 
 other, made in the ordinary course of busi- 
 ness, and for no other purpose: Veiths v. 
 Eagge, 8-163. 
 
 303. The party offering the books must 
 prove what his ordinary course of business 
 is : Ibid. ; Karr v. Stivers, 34-123. 
 
 304. And in a particular case, held, that 
 in the absence of any explanation as to what 
 the ordinary course of dealing of the parties 
 was, certain entries did not appear to be 
 made in the usual course of business : Karr 
 V. Stivers, 34-123. 
 
 305. Books of original entry are not admis- 
 sible for the purpose of proving payments or 
 loans of money unless that comes within the 
 
 ordinary business of the party in whose be- 
 half the books are kept : Veiths v. Hagge, 8- 
 163; Young v. Jones, 8-219; Sloan v. Ault, 
 8-229 ; Snell v. Eekerson, 8-284 ; Cummins v. 
 Hull's Adm'r, 35-258. 
 
 306. Such books are therefore inadmissi- 
 ble to prove a special agreement, or delivery 
 of goods under such agi-eement, or to prove 
 delivery of goods to a third person, or an 
 agreement to pay a balance due from other 
 parties : Lyman v. Bechtel, 55-487. 
 
 307. But if the payment or loan of money 
 constitutes, in any just sense, the ordinary 
 business of the party, and the charges are 
 made in the ordinary course of business, they 
 may be proved by the books of account: 
 Veiths V. Hagge, 8-163 ; Young v. Jones, 8- 
 219. 
 
 308. The business of keeping a retail store 
 is not generally such business as to justify 
 the introduction of the books of account 
 kept therein to prove charges for money 
 loaned: Veiths v. Hagge, 8-163; Sloan v. 
 Ault, 8-229. 
 
 309. Proof of a course of business be- 
 tween the parties, of lending and charging 
 in a book of account, will not be sufficient to 
 make such book admissible in evidence: 
 Veiths V. Hagge, 8-168. 
 
 310. Admissible ill other cases: Books of 
 account are admissible in behalf of a party 
 who made the entries therein, upon the 
 ground of necessity, and upon the presump- 
 tion that unless they be received there will 
 be a total failure of proof. They are receiva- 
 ble, therefore, as to the daily sale and barter 
 of merchandise .and other commodities, the 
 performance of services and the letting of 
 articles to hire, circumstances so frequent in 
 succession, and generally so trivial in their 
 individual amount, that the procuring, of 
 formal proof would not compensate for the 
 time bestowed : Karr v. Stivers, 34-123. 
 
 311. Where charges for stone purchased 
 from plaintiff were not made at the time the 
 stone was taken, but were made as soon as 
 defendant notified him how many had been 
 taken, held, that a satisfactory reason was 
 thus shown for not making the entries at the 
 time of the transaction : Anderson v. Ames, 
 6-486. 
 
 812, Whole account admissible: How- 
 ever, when a defendant avails himself of 
 
EVIDENCE, I, 3, g. 
 
 667 
 
 Entries in books of account. 
 
 credits shown by a book account in bis favor, 
 he cannot object to the account being used to 
 show charges against him. The whole ac- 
 count must be taken together: Veiths v. 
 Hagge, 8-163. 
 
 313. Parol evidence not admissible to 
 vary: Parol evidence of the party making 
 the entries is not admissible for the purpose 
 of explaining the language used by him. 
 The book of account when admitted beconaes 
 written evidence and speaks for itself : Cum- 
 mins V. Hull's Adm'r, 35-253. 
 
 314. Where the cause of action is founded 
 upon transactions embraced in books of ac- 
 count of one of the parties, the adverse party 
 is not bound to rely upon such books of ac- 
 count, but may introduce other evidence as 
 to the transaction, and such other evidence, 
 although entu-ely oral, will not be secondary : 
 Richmond v. Dubuque & S. C. R. Co., 40- 
 364. 
 
 315. It is not permissible to substitute evi- 
 dence as to the contents of the book for the 
 book itself: Churchill v. Fulliam, 8-45. 
 
 316. Copies: The books of account must 
 themselves be produced on the trial, and it is 
 not competent to prove their contents by at- 
 taching copies to a deposition: Peck v. 
 Parohen, 53-46. 
 
 317. Copies of books of account which 
 would themselves be admissible in evidence 
 are not competent : Salstead v. Cuppy, 67- 
 600; Creswellv. Slack, 68-110. 
 
 I 318. A receipt, tlie best evidence: Where 
 the books show that a receipt was given for 
 money, it is the best evidence and must be 
 produced or accounted for : Sloan v. Ault, 8- 
 229. 
 
 319. Showing account barred: Even 
 though the books show the account sought 
 to be proved by them to be barred by the 
 .statute of limitations, they are still admis- 
 sible in evidence for the purpose of laying 
 the foundation for showing defendant's writ- 
 ten admission or promise removing the bar, 
 or for showing from defendant's testimony 
 that the cause of action stUl subsists : Thorn 
 V. Moore, 21-285. 
 
 320. Not admissible to prove agreement: 
 The entry of a contract or agreement made 
 by the party in his own book is not receiv- 
 able in evidence. So held in case of a mem- 
 orandum or stock book in which purchases 
 
 of stock, etc., were noted; Hart v. Livings- 
 ton, 29-217 ; Whisler v. Drake, 85-103. 
 
 321. Must be books of original entry: 
 
 Wheie it appeared that a certain book was 
 used as a mere memorandum book from 
 wliicli an entry of chai'ges against parties in 
 what was called the sales book was made, 
 lield, that the sales book was the book receiv- 
 able in evidence as the book of original entry 
 and not the memorandum book: Hancock v. 
 Hintrager, 60-374. 
 
 322. Where it appeared that as the party's 
 books were kept, the ledger was not a book 
 of original entries, but tho party testified 
 that a iparticular entry in the ledger was 
 there made originally and not by transfer 
 from any other book, held, that such fact did 
 not render the ledger admissible in evidence to 
 prove such item : Fitzgerald v. McCarty, 55- 
 702. 
 
 323. Preliminary proof: In general, no 
 party other than the one making the entries 
 is competent to make the supplementary 
 oath necessary for the admission of the book : 
 Karr v. Stivers, 34-123. 
 
 324. Time-books kept by officers or em- 
 ployees of defendant, held properly excluded 
 when offered in evidence without being sup- 
 ported by testimony of those who kept them, 
 as to their correctness : Ford v. St. Louis, K. 
 &N. W. R. Co., 54^733. 
 
 825. Where books of account were intro- 
 duced in evidence containing entries by 
 different persons, held, that they were ad- 
 missible as to entries made by persons who 
 were called as witnesses and gave the requi- 
 site statutory evidence in relation thereto, 
 although not as to entries not thus proven : 
 Herriott v. Kersey, 69-111. 
 
 326. When a witness refers to books of ac- 
 count, in aid of his statements, the books are 
 competent to show a mistake in his testi- 
 mony ; and in such case the formal proof is 
 not necessary: Davenport v. Cummings, 15- 
 219. 
 
 32 7. Credibility : The preliminary proof be- 
 ing made, the question of the admissibility of 
 books in evidence is for the court ; the degree 
 of credit given them, and the question of 
 whether the charges are in the ordinary 
 course of business, are to be determined by 
 the jury : Veiths v. Hagge, 8-163 ; Young v. 
 Jones, 8-319. 
 
668 
 
 EVIDENCE, I, 3, h; 4, a. 
 
 Maps, books, etc. — Opinions and conclusions. — Admissibility of opinions. 
 
 328. When tlie proper preliminary proof 
 is made, the books should be received in evi- 
 dence, and any objection, on account of dis- 
 crepancies, etc., aflEecting their credibility 
 only, should be left to the jury: Eyre v. 
 Cook, 9-185. 
 
 h. Maps, plats, l)ooTcs of science, gen- 
 eral history, etc. 
 
 329. The books and maps which are ad- 
 missible under statutory provision (Code, 
 § 3633) are such as are published for circula- 
 tion among people generally. They must be 
 printed or otherwise published, so that the 
 presumption will follow that their contents 
 wiU be or may be generally known. A rec- 
 ord filed in a public office is not such a pub- 
 lication as is here contemplated: Heinrichs 
 V. Terrell, 65-35. 
 
 330. To render a map or plat admissible 
 under this section, it must be pubUo, and 
 must be shown to be the work of a disinter- 
 ested person : Pfotzer v. Mullaney, 30-197. 
 
 331. The herd-book of a particular breed 
 of cattle is receivable in evidence under the 
 same statutory provision : Kuhns v. Chicago, 
 M. & St. P. P. Co., 65-528. 
 
 332. But without proof that a herd-book 
 offered in evidence is recognized as correct 
 by cattle dealers, and that the animal re- 
 ferred to is the same as the one therein en- 
 tered, the herd-book is inadmissible: Craw- 
 ford V. Williams, 48-347. 
 
 333. Standard medical books are admis- 
 sible as evidence of the author's opinions as 
 to methods of medical skill or practice: Bow- 
 man v. Woods, 1 G. Gr., 441. 
 
 334. The statutory provision as to medical 
 books does not render inadmissible in evi- 
 dence that which was before admissible, and 
 standard medical authorities are not there- 
 fore the best evidence of what they teach or 
 whether they differ. The testimony of ex- 
 perts is admissible on such points and also as 
 to what are standard authorities, etc. : Brod- 
 head v. Wiltse, 35-429. 
 
 4. Opinions and conclusions/ testi- 
 mony of experts. 
 
 a. Admissibility of opinions in general. 
 
 335. Inferences or conclusions not ad- 
 missible : A witness should testify as to facts 
 
 and not to bis understanding or inferences: 
 Mead v. Hogue, 49-703. 
 
 336. A question calling for an inference or 
 opinion may properly be excluded: State v. 
 Donnelly, 69-705. 
 
 33 7. It is improper to ask a witness why he 
 did not do a certain act. Such question calls 
 for his conclusion : Locke v. Sioux City & P. 
 B. Co., 46-109. 
 
 338. The opinion of a witness on a mate- 
 rial point in a case is not admissible : Curl v. 
 Chicago, B. I.&P. B. Co., 63^17. 
 
 339. Non-expert testimony is not admissi- 
 ble upon the question as to how injuries upon 
 the person appeared to have been made. 
 Such a non-expert witness cannot properly 
 more than describe the injuries: State v. 
 Cross, 68-180. 
 
 340. The opinion of a witness as to the 
 rights of parties and the legal effect of their 
 acts is not competent : Smyth v. Ward^s Ex'rs, 
 46-339. 
 
 341. The opinion of a witness is not admis- 
 sible for the purpose of proving the meaning 
 of words used in a written instrument, nor 
 what he would understand by such instru- 
 ment, unless such words have a peculiar 
 meaning rendering the instrument ambigu- 
 ous and unintelligible to one not acquainted 
 with such meaning, and the testimony of 
 such witness is necessary in order to ex- 
 plain them : Campbell v. Busch, 9-337. 
 
 342. It is not competent for a witness to 
 state his understanding with reference to an 
 agreement, nor state as a legal conclusion 
 what the agreement was : Kelso v. Fitzgerald, 
 67-266. 
 
 343. The question .9s to what a witness 
 understood to be meant by certain language 
 is not proper where the facts upon which 
 such inference would be based can be pre- 
 sented to the jury: Johnson v. Miller, 69-562. 
 
 344. It is ordinarily the province of the 
 jury to determine what deduction or conclu- 
 sion should be drawn from a given state of 
 facts: Ibid. 
 
 345. The fact whether an answer to a let- 
 ter is evasive or not is not one about which 
 the party receiving it can testify dii-eotly, 
 but the fact is to be determined from the let- 
 ters or their contents: Kellogg v. Frazier, 
 40-502. 
 
 346. Testimony of a witness in an action 
 
EVIDENCE, I, 4, a. 
 
 669 
 
 Admissibility of opinions in general. 
 
 for slander, as to language used by defend- 
 ant, where it appears that it was the in- 
 ference of the witness merely that such 
 language was spoken of plaintiff, is not ad- 
 missible : Herzman v. Oberf elder, 54-83. 
 
 347. It is not proper for a witness to state 
 whom he understood a writing, claimed to 
 be libelous, to refer to, there being nothing 
 on the face of the writing indicating that 
 any particular person is referred to therein : 
 Anderson v. Hart, 68-400. 
 
 348. The opinion of a witness as to whether 
 the names "Eitohen" and "Kitchen," ap- 
 pearing in a chain of title, are in fact intended 
 for the same person, held incompetent : Bo- 
 ziene v. Ball, 51-328. 
 
 349. In an action to recover for an injury 
 due to a defective sidewalk, held not proper 
 for a witness to testify that the sidewalk was 
 not more dangerous to travel than the street 
 was before the sidewalk was built: Barnes 
 V. Newton, 46-567. 
 
 350. In an action against a city for injuries 
 received from defective sidewalks, it is not 
 proper for a witness to state his opinion that 
 the walk was not a good one, or that plaintiff 
 was not able to do her ordinary work after re- 
 ceiving the injury complained of : Spears v. 
 Mt. Ayr, 66-721. 
 
 351. While a witness cannot be permitted 
 to testify as to a conclusion of fact, yet if he 
 incidentally states a conclusion necessary to 
 a clear understanding of his testimony which 
 reveals the facts upon which such conclusion 
 is based, the statement wijl not be regarded 
 as a violation of the rule : Hoadley v. Ham- 
 mond, 68-599. 
 
 352. In an action against a railway com- 
 pany for damages, held, that evidence of the 
 agent of the company charged with the ex- 
 amination of claims, that he at one time 
 reached the conclusion, from an examination 
 of the evidence, that the claim was correct, 
 held not admissible : Aiken v. Chicago, B. <& 
 Q. B. Co., 68-363. 
 
 353. Opinion asto intent: Upon the ques- 
 tion whether defendant in an attachment 
 proceeding was about to dispose of his prop- 
 erty to defraud his creditors at the time of 
 the attachment, it is not proper to ask a wit- 
 ness what efforts were m^e by defendant to 
 sell with intent of defrauding his creditors. 
 An answer to such question would be merely 
 
 the expression of an opinion as to a fraudu- 
 lent intent : Carey v. Crunnison, 51-203. 
 
 354. As to whether a transaction was an 
 honest one or not is a question upon which 
 the testimony of a witness is not admissible: 
 Sweet V. Wright, 63-215. 
 
 355. Negligence: It is not competent for 
 a witness to express an opinion as to whether 
 an injury was caused by the negligence of a 
 party : Brant v. Lyons, 60-172. 
 
 Amount of damages, opinion as to, see 
 infra, §§ 501-504. 
 
 356. Solvency: The personal opinion of a 
 witness as to whether a party was solvent or 
 insolvent at a particular time is not admis- 
 sible : Hall V. Ballou, 58-585. 
 
 357. Eeputation: The opinion of a witness 
 as to a person's general reputation is not 
 competent: Kitteringham v. Dance, 58-633. 
 
 358. Inferential facts: The question at 
 issue .being whether certain property was on 
 fire at a particular time, held, that it was im- 
 proper to ask a witness who testified that he 
 was in a position to have seen the fire, if it ex- 
 isted, whether there was or was not a fire at 
 that time, but that he should have been con- 
 fined to stating whether or not he saw any 
 fire : Parkhurst v. Masteller, 57-474. 
 
 359. To ask a witness whether a party 
 changed his gait from a walk to a limp when 
 he saw that he was observed by witness, 
 held improper as calling for an expression of 
 opinion: Hollenbeck v. Marshalltovsn, 63-21. 
 
 360. Whether the walk of a person is an 
 ordinarily good walk or not is an expression 
 of an opinion : Ibid, 
 
 361. Facts of observation : The statement 
 of a witness to the effect that a sidewalk 
 claimed to have been defective and to have 
 caused injury to plaintiff was in good repair 
 is not an expression of opinion, but of a 
 fact discoverable by observation, and belongs 
 to that class of testimony relating to expe- 
 rience and observation as to the affairs of 
 every-day life, to which the attention of aU 
 is directed and of which all are competent to 
 speak : Kelleher v. Keokuk, 60-473. 
 
 362. In a proceeding to assess damages for 
 the taking of a right of way by a railway 
 company, held, that the statements of a wit- 
 ness that the embankments and cuts on a 
 right of way prevented passage from one 
 side of the track to the other with farming 
 
670 
 
 EVIDENCE, I, 4, a. 
 
 Admissibility of opinions in general. 
 
 implements was not an expression of an opin- 
 ion, but tlie statement of a fact : Smalley v. 
 Iowa Pacific R. Co., 36-571. 
 
 363. The bishop of a church may state the 
 admission of a particular parish into the gen- 
 eral convention of the church, such matter 
 being a question of fact and not of opinion : 
 Bird V. St. Mark's Church, 62-567. 
 
 364. Evidence of a witness that, in a cer- 
 tain transaction, credit was given to a cer- 
 tain party is not objectionable as being the 
 statement of an opinion : Hale v. Gibbs, 43- 
 380. 
 
 365. Possession is a fact to be proven as 
 any other fact, and it is competent to state 
 who has possession of a building, such state- 
 ments not being objectionable as a legal con- 
 clusion : Boothby v. Brown, 40-104. 
 
 366. Where the question at issue was 
 whether plaintiff sold property to defendant 
 as partner, held, that it was not error to ad- 
 mit his evidence as to his opinion and belief 
 at the time of the sale, formed from the state 
 ments of the parties, as to the existence of a 
 partnersliip : Seekell v. Fletcher, 53-330. 
 
 367. Where the question was as to the ex- 
 tent of disability suffered by plaintiff on ac- 
 count of an accident, held, that the question, 
 " what was your physical ability to perform 
 labor or business of any kind for nine or ten 
 weeks after the injury," in answer to which 
 defendant replied, " I was not able to do any- 
 thing,'' was not improper: Lyon v. Railway 
 Passenger Assurance Co., 46-681. 
 
 368. In an action for malpractice where 
 defendant claimed the application of other 
 medicines than those prescribed by him, the 
 father of plaintiff was asked if he would 
 have most likely known of such application, 
 if any there was. It appearing that the 
 father had abundant means of knowledge as 
 to the treatment which defendant received, 
 held, that the question was not objectionable 
 as calling for an opinion : Cochran v. Miller, 
 13-128. 
 
 369. A fracture of the ribs may be of such 
 unmistakable character that the person hav- 
 ing sustained the injury may have had pos- 
 itive knowledge of the fact and testify as to 
 it without being required to show that he is 
 an expert : Ferguson v. Davis County, 57-601. 
 
 370. Testimony of parties as to the speed 
 of a train, based upon the sound made by it. 
 
 is admissible where the question is as to 
 whether the train was moving at a slow or 
 a rapid rate : Van Horn v. Burlington, 0. R. 
 &N.R. Co., 59-33. 
 
 371. It is competent for a witness to give 
 an opinion as to a matter based on facts com- 
 ing under his observation ; for instance, as to 
 the effect which a sudden increase of the 
 motion of the engine would have in produc- 
 ing a jerk in the train : Whitsett v. Chicago, 
 R. I. & P. R. Co., 67-150. 
 
 372. The question whether a team can be 
 turned in a road of a certain width is a fact 
 as to which a witness can testify and such 
 testimony cannot be classed as expert testi- 
 mony : Funston v. Chicago, R. I. & P. R. 
 Co., 61-452. 
 
 373. In a particular case, held, that while 
 the opinion of a witness as to a particular 
 matter based upon facts and circumstances 
 testified to by him might have been material, 
 yet that the exclusion of such opinion was 
 not prejudicial error, since all the facts upon 
 which the opinion must have been grounded 
 were before the court : Mcintosh v. Living- 
 stone, 41-319. 
 
 374. Conclusions drawn from conTersa- 
 tions: A witness who cannot testify as to 
 the exact language used in a conversation 
 heard by him may properly be allowed to 
 testify as to impressions received by him from 
 such conversations and the ideas formed 
 therefrom: State v. Donovan, 61-278. 
 
 375. Testimony in regard to a conversa- 
 tion is not to be rejected, though the witness 
 disclaims his ability to remember the words 
 used. He may nevertheless give the purport 
 of the conversation, without his testimony 
 being objectionable as constituting a mere 
 conclusion: Walker v. Camp, 63-627. 
 
 376. The admission over objection of a 
 statement by a witness as to his conclusions 
 as the result of a conversation heard by him, 
 the fact as to which such conclusions were 
 formed not being ultimate to the facts of the 
 case, lield not sufficient to require revei-sal: 
 State V. Jones, 64-349. 
 
 377. General conclusions in the nature 
 of facts: It is competent for a witnes? to tes- 
 tify to his conclusions, if the matter to which 
 the testimony relates cannot be produced or 
 described to the jury, precisely as it appeared 
 to the witness. Therefore, held, that it was 
 
EVIDENCE, I, 4, a. 
 
 671 
 
 Admissibility of opinions in general. 
 
 competent for a witness to testify whether 
 horses were frightened by a stream of water 
 from a hose, or by escaping steam from an 
 engine, or the like : Yahn v. Ottumwa, 60-429. 
 
 378. State of feelings or mental coudi- 
 tion : Under the exception to the rule that 
 the opinions of a witness are not receivable, 
 are those cases where the judgment or opin- 
 ion of a witness on some matter material to 
 be considered by the coui-t is founded on 
 facts which, from their very nature or num- 
 ber, it would be impossible to bring before it. 
 Therefore, held, that a witness being exam- 
 ined as to facts tending to show the insanity 
 of his brother, might testify as to the state of 
 feeling manifested toward him by his brother 
 and that there was no cause for such feelings : 
 Pelamourges v. Clark, 9-1. 
 
 379. It is always allowable for a witness to 
 describe the ai^pearance of an object or a 
 thing, when material, as that a person ap- 
 peared excited, or amused, or intoxicated, or 
 the like, and yet in a certain sense this is an 
 opinion, but it is not an opinion as distin- 
 guished from a fact in such sense as to be in- 
 admissible: State V. Moelchen, 53-310. 
 
 380. The physical or mental condition or 
 appearance of a person or his manner or con- 
 duct may be proved by the opinion of an or- 
 dinary witness founded on observation. It 
 is therefore competent for an ordinary wit- 
 ness to testify as to whether a certain person 
 looked angry : State v. Shelton, 64-333. 
 
 381. The fact that a person acted strangely 
 or in a childish manner is not one requiring 
 expert testimony and may be testified to by 
 any one : Parsons v. Parsons, 66-754. 
 
 382. Where the issue is as to whether tes- 
 tamentary capacity has been impaired by 
 sickness, a non-expert witness well acquainted 
 with testator both in sickness and health, and 
 who has had the care of him in sickness, can 
 be allowed to state that he saw no difference 
 in his mental condition in sickness and his 
 mental condition in health : Severin v. Zaok, 
 55-38. 
 
 383. Intoxication: While witnesses can- 
 not in general give their opinions, there are 
 cases where evidence of observed facts alone 
 as distinguished from inferred facts is not 
 especially valuable, and where inference 
 based upon observed facts without any special 
 skill or special knowledge on the part of the 
 
 observer is valuable. Therefore, held compe- 
 tent for a witness not an expert to state 
 directly whether a party was intoxicated or 
 not : State v. Huxford, 47-16. 
 
 384. Insanity: After a witness has stated 
 facts and circumstances tending to show san- 
 ity or insanity, then his conclusion or opin- 
 ion derived from or resting upon such facts 
 may be given: Pelamourges v. Clark, 9-1; 
 Butler V. St. Louis L. Ins. Co., 45-98; Smith 
 V. Hickenbottom, 57-788. 
 
 385. The rule as to non-expert witnesses 
 giving an opinion is that after the witness has 
 stated facts and circumstances, then his opin- 
 ion derived from and based upon such facts 
 may be given ; but he cannot be asked to state 
 his opinion as based on his own observation 
 and what he has heard. It is improper to al- 
 low a witness to exercise his discretion as to 
 what facts and circumstances he will take 
 into consideration: Parsons v. Parsons, 66- 
 754. 
 
 386. A subscribing witness to a will can 
 state whether the testator was sane at the 
 time the will was executed: Ibid. 
 
 387. Where a witness, though not an ex- 
 pert, has detailed fully the facts upon which 
 his opinion is based, he may give an opinion 
 as to defendant's lack of mental power and 
 the degree of his imbecUity : State v. Porter, 
 34^131. 
 
 388. An opinion as to the ability of defend- 
 ant to distinguish right from wrong is prop- 
 erly receivable to show want of intellectual 
 power: Ibid. 
 
 389. While a witness not an expert may 
 express an opinion as to insanity based upon 
 facts testified to by him, he cannot express 
 an opinion based upon former knowledge 
 and acquaintance: State v. Stiekley, 41-332. 
 
 390. It is improper for a non-expert wit- 
 ness to express an opinion as to the capacity 
 of a party to make a contract or transact 
 business at the time in question, based upon 
 his personal knowledge from the appearance, 
 language and actions of the party, without 
 specifying them : Pelamourges v. Clark, 9-1 ; 
 Ashcraft v. De Armond, 44r-339. 
 
 391. A witness not an expert may give his 
 opinion as to the mental condition of another 
 only after he has detailed the facts and cir- 
 stances on which such opinion is formed: 
 State V. Pennyman, 68-216. 
 
672 
 
 EVIDENCE, I, 4, b. 
 
 Opinions of experts. 
 
 392. A person who is not an expert is not 
 competent to give a general opinion as to the 
 mental condition of a person : State v. Geddis, 
 42-364; Hurst v. Chicago, B. I. & P. R. Co., 
 49-76. 
 
 393. The opinion of a medical witness, 
 based wholly upon testimony of previous 
 witnesses, and from observation of defend- 
 ant's conduct during the trial, is incompetent 
 as to the insanity of a party. Such medical 
 witness may, from personal knowledge and 
 examination, give an opinion based thereon 
 as to mental condition : State v. Felter, 25-67. 
 
 b. Opinions of experts. 
 
 394. When aAmissiblP:. The opinion of a 
 witness possessing peculiar skill is admissible 
 whenever the subject of inquiry is such that 
 inexperienced persons are unlikely to prove 
 capable of forming a correct judgment upon 
 it without such assistance ; in other words, 
 when it so far partakes of the nature of a 
 science as to require a course of previous 
 habit or study in order to the attainment of 
 the knowledge of it: Muldowney v. Illinois 
 Cent. R. Co., 36-463; Belair v. Chicago &N. 
 W. R. Co., 43-663. 
 
 ■ 395. The opinion of a witness is not to be 
 received when the inquiry is as to a subject- 
 matter the nature of which is not such as to 
 require any peculiar habits or study in order 
 to qualify a man to understand it. If the re- 
 lations of facts and their probable results can 
 be determined without special skill or study, 
 the facts themselves must be given in evi- 
 dence and the conclusions or inferences must 
 be drawn by the jury : Ibid. 
 
 396. Therefore, held, that a question as to 
 whether there was danger in coupling cai'S 
 with draw-heads of unequal height was not 
 a question for expert testimony : Muldowney 
 V. Illinois Cent. R. Co., 36-463. 
 
 397. Held, also, that the question as to 
 whether it was dangerous to stand in a par- 
 ticular position in coupling a locomotive to a 
 way car, the fact being in evidence as to the 
 space usually remaining between the car and 
 the locomotive when the draw-heads come in 
 contact, was not one upon which expert tes- 
 timony was admissible : Belair v. Chicago & 
 N. W. R. Co., 43-662. 
 
 398. The question as to the effect of apply- 
 ing brakes to different parts of a railway 
 
 train, as being likely to cause the breaking 
 apart of the train or not, held to be for the 
 jury and not a matter of expert opinion: 
 Bums V. Chicago, M. & St. P. R. Co., 69- 
 450. 
 
 399. Every employment requires a degree 
 of skill, and there is none in which profi- 
 ciency cannot be obtained by practice, but 
 this fact is not sufficient ground for the ad- 
 mission in evidence of the opinions of those 
 who have attained such profloienoy. The 
 pursuit in which the witness claims to be an 
 expert must be one of science, skiU, trade, or 
 the like, that his opinions may be admissible. 
 The fact upon which the opinions may be 
 expressed must be of such character that it 
 cannot be inferred, from other facts proved, 
 by one not skilled or not possessing peculiar 
 knowledge of the subject -in controversy: 
 Hamilton v. Des Moines Valley R. Co., 38-31. 
 
 400. Therefore, lield, that the method in 
 which railway cars on which are loaded pro- 
 jecting timbers should be coupled was not a 
 question for expert testimony : Tbid. 
 
 401 . A bridge builder cannot testify as an 
 expert as to what effect a log floating down 
 as drift wood, and caught on the bent 6t a 
 bridge, would have in changing the current 
 and causing a washout: Cooper v. Mills 
 County, 69-350. 
 
 403. Expert testimony is not admissible 
 where no question of science or special skill 
 is involved in the inquiry, or the judge or 
 jurors, when informed as to the facts in the 
 case, can determine the question as well as 
 the witness : Stafford v. Oskaloosa, 64-251. 
 
 403. The question whether timbers are 
 piled in a negligent manner or not is not a 
 question upon which expert testimony is ad- 
 missible. Such matter does not in any sense 
 involve the mastery of technical knowledge 
 or skill: Baldwin v. St. Louis, K. & N. B. 
 Co., 68-37. 
 
 404. The opinion of a witness is not to be 
 received as expert testimony merely because 
 he has had some experience or a greater 
 opportunity for observation than others, un- 
 less the experience relates to matters of skill 
 and science : Kilbourne v. Jennings, 38-533. 
 
 405. Therefore, held, that a painter was 
 not better qualified than any other witness to 
 testify as to the character of carpenter work: 
 Ibid. 
 
EVIDENCE, I, 4, b. 
 
 673 
 
 Opinions of experts. 
 
 406. Although the testimony of an expert 
 witness as to matters of opinion involving no 
 (juestion of skill, science or trade is not ad- 
 missible, held, that as the testimony in a par- 
 ticular case was as to matters which were 
 self-evident, its admission was not prejudi- 
 cial : Kline v. Kansas City, St. J. & C. B. R. 
 Co., 50-656. 
 
 i07. A practical surveyor who has made 
 actual survey of the premises in question may 
 state the result of his survey, and having 
 drafted a plat, which is in evidence, may state 
 his opinion as to the correctness of the plat 
 and the location of the boundaries of the 
 premises and the buildings situated thereon 
 with reference to such boundaries : Messer v. 
 Reginnitfer, 32-318. 
 
 408. In an action upon a contract for the 
 construction of a brick building in accord- 
 ance with speciiio instructions, held, that 
 opinions of experts were admissible as to the 
 proper method of constructing the building 
 in accordance with such specifications : Haver 
 t: Tenny, 36-80. 
 
 409. In an action for profits arising upon 
 a contract of railroad excavation, the em- 
 bankment, the character of the ground, etc., 
 may be stated as facts to a witness who is 
 experienced in such work and who is ac- 
 quainted with the locality, for the purpose 
 of having him give an opinion on the ques- 
 tion of profits : Crawford v. Wolf, 29-567. 
 
 410. The question whether the fact that 
 the wound made by a ball passing through 
 the hand was a simple skin wound was con- 
 sistent with the theory that it was made 
 while the hand was presised tightly over the 
 muzzle of the weapon from which the ball 
 was discharged, held, a proper question for 
 expert testimony : State v. Cross, 68-180. 
 
 411. Expert evidence held admissible on 
 the question whether a certain obstruction 
 on a bridge was of such character as to be 
 likely to frighten horses of ordinary gentle- 
 ness, the habits, nature, etc., of horses being 
 a matter about which persons are better able 
 to Judge who have had experience in hand- 
 ling and driving them : Moreland i\ Mitahell 
 County, 40-394. 
 
 412. Testimony of a locomotive engineer 
 as to the care usually exercised by those run- 
 ning trains under the circumstances attend- 
 ing the injury complained of, held proper in 
 
 Vol. I -43 
 
 determining whether the requisite amount 
 of care was exercised in a particular case: 
 Cooper V. Central R. of Iowa, 44-134. 
 
 413. Also, held, that such a witness might 
 show the effect of an engine's striking an 
 animal, when running backward, as was the 
 case in the injury sued for, and might show 
 also the structure of the locomotive and 
 tender and its height above the track, etc., 
 such matters not being equally within the 
 knowledge of all men of ordinary intelli- 
 gence: Ihid. 
 
 414. Where the question was as to the 
 effect of a certain mode of construction on 
 the safety and usefulness of railway cars, 
 held, that the testimony of experts upon these 
 points was improperly excluded: Baldwin v. 
 Chicago, R. I. & P. R. Co., 50-680. 
 
 41.5. Where the question was as to whether 
 a county had been negligent in not examin- 
 ing and repairing a bridge, held, that it was 
 proper to ask a bridge-builder of considerable 
 experience what would be the average life of 
 timber of a particular kind in a bridge, the 
 fact being one proper to be established by 
 the testimony of persons who have acquired 
 knowledge respecting it by experience and 
 observation: Fergvson v. Davis County, 57- 
 601. 
 
 416. A witness who had run a threshing 
 machine six or eight years, held competent to 
 give an opinion as an expert upon the com- 
 parative value of such machines. Also held 
 that a machinist was competent, as such, to 
 give an opinion as an expert as to whether a 
 machine was well constructed in a certain 
 respect : Sheldon v. Booth, 50-209. 
 
 As to admissibility of opinions with refer- 
 ence to questions of value and damages, see 
 infra, §§ 488-504. 
 
 As to expert testimony with reference to 
 handwriting, see infra, S^ 468-472. 
 
 417. Medical experts may properly testify 
 as to the change which usually and ngpessa- 
 rUy takes place in the human body after death 
 according to the laws of nature, and indicate 
 the extent of such change in the body in 
 question; but it must be left for the jury to 
 determine from such testimony whether it is 
 possible for any one to identify the body or 
 not : State v. Vincent, 24^570. 
 
 418. Opinions of medical men who are 
 shown to be expert, as to the instruments pro- 
 
G74 
 
 EVIDENCE, I, 4, b. 
 
 Opinions of experts. 
 
 ducing and the nature and consequences of 
 wounds or the causes of diseases, are com- 
 petent evidence in a prosecution for homi- 
 cide : State v. Morphy, 33-270 ; State v. Porter, 
 34-131. 
 
 419. Before the enactment of the statutory 
 provision allowing the introduction in evi- 
 dence of books of science, etc., medical 
 works were not competent evidence, The fact 
 that they are now admissible does not render 
 other testimony incompetent, but an expert 
 may still be allowed to testify as to what is 
 the practice of the ablest modern surgeons in 
 a particular class of cases, and as to whether 
 standard authorities differ or not in reference 
 to particular cases : Brodhead v. Wiltse, 35- 
 439. 
 
 As to medical testimony in regard to in- 
 sanity, see supra, §§ 384^393. 
 
 As to competency of medical witnesses to 
 testify as experts, see infra, § 443. 
 
 420. Laws of another state: Evidence of 
 expert witnesses as to the validity of a judg- 
 ment under the usages of another state is 
 competent ; Crafts v. Clark, 38-337. 
 
 421. What is not subject of expert testi- 
 mony: The credit of a merchant is not a 
 matter about which the opinion of a witness 
 is receivable in evidence as expert testimony : 
 Thomas v. I sett, 1 G. Gr., 470. 
 
 422. The fact of a place being safe or un- 
 safe, as tending to show whether a man who 
 is missing was murdered or not, is not a ques- 
 tion for experts to determine. The facts 
 showing such safety or the want of it must 
 be proved to the jury : Tisdale v. Connecticut 
 Mut. L. Ins. Co., 28-12. 
 
 423. The question as to whether it was 
 ne^igent to ride upon a wagon load of straw, 
 loaded in a particular manner, held not to be 
 proper for expert testimony: Bills v. Ot- 
 tumwa, 35-107. 
 
 424. Where the question was wiiether, in 
 descending from a car in a particular manner, 
 a brakeman was guilty of contributory neg- 
 ligence, held, not proper to ask the opinion of 
 a yard master or a freight conductor as to 
 whether the method adopted in doing the act 
 was or was not the proper method, that be- 
 ing a question for the jury : McKean v. Bur- 
 lington, C. R. & N. B. Co., 55-193. 
 
 425. The propriety of cutting a train in 
 two while in motion is not a question on 
 
 which a witness familiar with the operation 
 of trains is authorized to express an opinion : 
 Jeffreys v. Keokuk & D. M. B. Co., 56-546. 
 
 426. Where the question was as to whether u 
 brakeman had acted in a proper manner, held. 
 that it was not proper for a witness, also a 
 brakeman, to testify as to how he would havi' 
 acted under the circumstances : Whitsett v. 
 Chicago, R. I. <& P. B. Co., 67-150. 
 
 42 7, The question whether, when a train is 
 in motion, a person can go between the cars 
 and uncouple them and at the same time see 
 whether a frog in the track is blocked or not. 
 is not a question upon which the opinion of a 
 witness may be given. Circumstances bear- 
 ing on that question should be shown in evi- 
 dence : Coates v. Burlington, C. B. & N. R. 
 Co., 63-486. 
 
 428. Where plaintiff claimed that he had 
 been injured in the removal of brass boxings 
 of car-wheels by reason of the fact that a 
 poisonous substance was formed thereon, on 
 accovint of their having been allowed to wear 
 too thin before being removed, held, that a 
 question asked an expert witness with regard 
 to when such boxings ought to be removed 
 was improper as calling for an opinion about 
 a fact which should have been determined by 
 the jury : Kitteringham v. Sioux City & P. 
 B. Co., 63-285. 
 
 429. In an action against a railway com- 
 pany for injuries received by an employee 
 alleged to have resulted from improper con- 
 struction of the cars, held, that the question 
 whether it was dangerous to couple an en- 
 gine and a car of a certain pattern was not 
 one for expert testimony: Way v. Illinoij< 
 Cent. B. Co.. 40-341. 
 
 4;J0. It is not competent for a witness to . 
 declare as to whether or not a certain act on 
 the part of a brakeman was within the line 
 of his duty. It is for the jury to determine 
 in sucli cases whether it was required to be 
 done in performance of the services imposed, 
 or whether the act could not have been done 
 in another manner accompanied with less 
 danger. Such a question is not one for ex- 
 pert testimony : Allen v. Burlington, C. R. 
 &N. R. Co., 57-633. 
 
 431. Evidence as to continual danger 
 from fires set out by an engine used in oper- 
 ating the road, Jield incompetent in a partic- 
 ular case, because a mere matter of opinion 
 
EVIDENCE, I, 4, b. 
 
 675 
 
 Opinions of experts. 
 
 xipon a question not involving science or 
 skill: Lance v. Chicago, M. & St. P. R. Co., 
 57-636. 
 
 432. Opinions of expert witnesses as to the 
 action of vpater and ice upon a bridge, caus- 
 ing it to fall, held improperly admitted: 
 Hughes v. Muscatine County, 44-673. 
 
 433. Questions of ordinary judgment, based 
 upon common observation, such as the effect 
 of a lantern in a dark, misty night in render- 
 ing objects visible^ are not subjects for expei't 
 testimony : Weatie v. Keokuk cfc D. M. R. Co. , 
 45-246. 
 
 434. The question whether a portion of a 
 street in a city was vvoi'ked, or prepared, or 
 intended to be prepared, by the city for pub- 
 lic travel for teams, calls for an opinion in a, 
 matter as to which expert testimony is not 
 admissible: Stafford v. Oskaloosa, 64-351. 
 
 435. Where the question in issue was, 
 whether plaintiff was competent to perform 
 the duties of express messenger and baggage 
 master, involving the handling of heavy arti- 
 cles and the clerical duty of making out du- 
 plicate way-bills, held, that his fitness for 
 such duty was not a subject upon which 
 those familiar with the business, and who had 
 been acquainted with his method of conduct- 
 ing the same, could express an opinion as 
 experts, but that the facts must be commu- 
 nicated to the jury and the fitness of the 
 plaintiff for the business determined by 
 them: Moore v. Chicago, B. & Q. R. Co., 65- 
 .505. 
 
 436. In an action to recover from a livery- 
 stable keeper the value of a horse dying 
 while in his possession, held not competent 
 to introduce the testimony of a veterinary 
 surgeon that horses frequently fall down and 
 die instantly without any apparent cause, 
 such evidence not being in the nature of an 
 expert opinion: McPherrin v. Jennings, 68- 
 622. 
 
 437. The question whether the fees claimed 
 by a justice of the peace for the trial of a 
 particular case were reasonable, lield not to 
 be a matter for expert testimony : Evans v. 
 Story County, 35-136. 
 
 438. An inquiry of an expert witness as to 
 what it would cost to make a building erected 
 under a contract "a good and workmanlike 
 job according to the contract testified to by 
 plaintiff," held not proper, as it required the 
 
 witness to put his own construction on the 
 plaintiff's testimony as to the contract : 
 McClay v. Hedge, 18-66. 
 
 439. Where the question was whether a 
 conductor had acted properly in the manage- 
 ment of his train, in view of a telegram from 
 the superintendent, held, that it was not 
 competent for such superintendeiit to testify 
 as to the language used in the telegram, the 
 true question being, what did such telegram 
 mean, when read by the conductor in the 
 light of surrounding circumstances: Locke v. 
 Sioux City <fe P. R. Co., 46-109. 
 
 440. Matters which are of general expe- 
 rience, such as the probable conduct of an 
 animal under certain circumstances, need 
 not be proved, and it is improper to intro- 
 duce expert testimony on such questions : 
 Kraus v. Burlington, C. R. & N. R. Co., 
 55-338. 
 
 441. Matters of general knowledge may 
 be taken notice of by the jury, but expert or 
 other evidence to prove them is not admissi- 
 ble: Clark V. Kansas City, St. L. & N. R. 
 Co., 55-455. 
 
 442. Who qualified to testify as experts: 
 Any evidence tending to show that a witness 
 called as an expert possesses the requisite 
 knowledge and skill is admissible and is to 
 be considered for what it is worth : State v. 
 Maynes, 61-119. 
 
 443. On the question as to whether a per- 
 son offered as a witness is qualified to make 
 a post-mortem examination of the human 
 ston)ach and testify as to the presence of 
 arsenic, it would be proper to admit evidence 
 to show that he was a medical practitioner. 
 Upon such evidence alone being shown, the 
 court need not allow him to testify, but such 
 evidence will tend to show qualification : 
 State V. Cole, 63-695. 
 
 444. If a party against whom an expert 
 witness is offered makes no objection to the 
 sufficiency of the evidence of his qualifica- 
 tion, the court would ordinarily be justified 
 in assuming that the party regarded him as 
 qualified, or relied upon his showing the want 
 of such qualification later : Ibid. 
 
 445. When a witness is offered as an ex- 
 pert, the court would not be justified in al- 
 lowing him to testify, against the objection of 
 the party against whom the testimony is 
 offered, until some evidence is introduced that 
 
6Y6 
 
 EVIDENCE, I, 4, b. 
 
 Opinions of experts. 
 
 he is of the requisite character ; but when a 
 witness has been once admitted by tlie court 
 to testify, the weight that should be given to 
 his evidence in view of the evidence as to his 
 quaUfications- becomes a question for the 
 jury, and in a proper case they may be justi- 
 fied in disregarding his testimony entirely: 
 Ibid. 
 
 446. It is competent to prove by the bishop 
 of a church the meaning of the words 
 " parish " and " rector," as understood by the 
 canons of the church: Bird v. St. Mark's 
 Church, 63-567. 
 
 447. A person resorting to a saloon for in- 
 toxicating drinks may be presumed to be 
 quahfied to give an opinion as to the hquor 
 supplied him: State v. Miller, 53-84. 
 
 448. Expert testimony as to the detection 
 of poison is not to be limited to the testi- 
 mony of the highest pi-ofessional skill, but if 
 the experiment has been conducted by a per- 
 son who has not had experience or is not 
 practically familiar with the operation, his 
 credibility is for the jury: State v. Hinkle, 
 6-380. 
 
 449. A person not belonging to the guild, 
 trade or profession of engineer, held not 
 qualified to testify as to the competency of 
 an engineer: Couch v. Watson Coal Co., 
 46-17. 
 
 450. A person does not show that he is 
 qualified as an expert to testify as to whether 
 a particular matter constitutes an increase of 
 risk by the mere fact that he is an insurance 
 agent. To be entitled to testify as such ex- 
 pert, he must show that his duties have been 
 such that he has become experienced in pass- 
 ing upon risks or has acquired special knowl- 
 edge on the subject. A mere soliciting agent 
 is not necessarily of such class : Stennett v. 
 Pennsylvania F. Ins. Co., 68-674. 
 
 As to who are qualified to testify as experts 
 as to value, see infra, gg 486-500; and as to 
 handwriting, see infra, g§ 468-470. 
 
 451. Method of introducing expert testi- 
 mony : A witness introduced as an expert can- 
 not undertake to show what is determined 
 by the evidence and give an opinion on that, 
 but facts must be stated hypothetically upon 
 which his opinion can be predicated : Phil- 
 lips V. Starr, 26-349. 
 
 452. An expert witness may properly state 
 such facts as he knows respecting the case. 
 
 and then give his opinion on such facts ; or 
 he may be asked his opinion on an assumed 
 state of facts, which the testimony of other 
 witnesses tends to establish. But he cannot 
 be asked his opinion upon facts assumed by 
 him from the evidence before the jury : Mul- 
 downey v. Illinois Cent. R. Co., 39-615. 
 
 453. The interrogatories to be put to an ex- 
 pert are not as to what his opinion is of the 
 testimony, but as to what his opinion is, if 
 the facts are as stated to him by the ques- 
 tioner. If the question calls for an answer 
 involving an opinion of the testimony itself, 
 it is not proper : Butler v. St. Louis L. Ins. 
 Co., 45-93. 
 
 454. Hypothetical questions should be 
 based upon the language used by the wit- 
 nesses asto the facts, and not upon a relation 
 of the evidence of witnesses not directly sup- 
 ported by their testimony: State v. Cross, 
 68-180. 
 
 455. An expert may base his opinion upon 
 facts which the evidence tends to establish, 
 but he cannot base it upon facts stated by 
 counsel, of which there is no evidence: 
 Hurst V. Chicago, B. I. & P. B. Co., 49-76. 
 
 456. It is error to admit an opinion of an 
 expert based upon a hypothetical case, in 
 which facts are introduced of which there 
 is no proof: In re Will of Ames, 51-596. 
 
 45 r. To make a hypothetical question pro- 
 pounded for the purpose of getting the 
 opinion of the expert proper, there must be 
 evidence tending to prove the matters stated 
 in such question : Bomgardner v. Andrews, 
 55-638. 
 
 458. Where there is a conflict in the testi- 
 mony, it is improper to ask an expert wit- 
 ness a question based upon the testimony in 
 general : Smith v. Hickenbottom, 57-733. 
 
 459. The fact that a hypothetical question 
 is asked of an expert wifness, bused upon the 
 terms of a lease and the condition of the 
 property, held not sufficient to render his 
 answer objectionable, as amounting to a con- 
 struction of the lease as appHed to the prop- 
 erty: Taylor v. French Lumbering Co., 47- 
 663. 
 
 460. Weight of expert evidence: While 
 there are doubtless cases in which it is proper 
 to charge the jury that expert evidence is re- 
 garded as the lowest order, or evidence of the 
 most unsatisfactory character, yet where 
 
EVIDENCE, I, 5, 6. 
 
 677 
 
 Handwriting. — Value and dauages. 
 
 such evidence was that of medical experts re- 
 lating to the mental condition of defendant, 
 depending upon the effect on the mind of an 
 obscure form of epileps}-, the effects of which 
 are such as not to be observable by one not 
 an expert, held error to thus disparage such 
 expert testimony : State v. Townsend, 66- 
 741. 
 
 As to the weight of expert evidence as to 
 handwriting, see infra, §§471, 472. 
 
 5. Eoidence as to handwriting. 
 
 461. Comparison: The writing with which 
 comparison is made must be proved to be 
 genuine by testimony of witnesses who saw 
 the party write it, or by the party's admis- 
 sion, when not offered by hhn, or in some 
 such a positive manner. The genuineness of 
 the standard cannot be proved by a witness 
 who has seen the party write generally. The 
 standard, however, need not be a writing 
 connected with the case : Hyde v. Woolfolk, 
 1-159. 
 
 4G2. A paper offered in evidence for the 
 mere purpose of furnishing the jury a stand- 
 ard of comparison is admissible only where 
 no collateral issue can be raised concerning 
 it ; that is, when the paper is conceded to be 
 genuine, or is such that the other party is 
 estopped to deny it, or belongs to the witness, 
 who was himself previously acquainted with 
 the party's handwriting, and exhibits the 
 paper in confirmation and explanation of his 
 own testimony : Wilson v. Irish, 63-260. 
 
 463. The genuineness of the writing made 
 the basis of the comparison, called the stand- 
 ard writing, should be proved by direct and 
 positive evidence. A writing cannot be thus 
 used when its genuineness rests only upon 
 evidence based upon comparison with other 
 writing claimed to be genuine : Winch v. Nor- 
 man, 65-186. 
 
 464. The party whose handwriting it is 
 sought to prove may, on his behalf, offer 
 in evidence writings of his own proved to be 
 genuine, and is not to be limited to such 
 writings as were made before the issue as 
 to genuineness of handwriting was raised. 
 Therefore, held, that defendant might offer in 
 evidence his signature to his answer in the 
 case: Singer Mfg. Co. v. McFarland, 53- 
 540. 
 
 465. An instrument purporting to be ex- 
 ecuted by the party whose signature is in 
 question, and duly acknowledged, is not ad- 
 missible in proof of handwriting. It might 
 be properly executed and acknowledged, al- 
 though the signature were in the handwrit- 
 ing of another : Hyde v. Wcolfolk, 1-159. 
 
 466. On appeal in an equitable action, tri- 
 able de novo, the supreme court will make a 
 comparison of the writings : Morris v. Sar- 
 gent, 18-90; and see Baker v. Mygatt, 14- 
 131. 
 
 467. But in an action by ordinary proceed- 
 ing, the determination of the court upon the 
 genuineness of a signature is, upon appeal, 
 entitled to the same consideration as the ver- 
 dict of a jury : Lay v. Wissman, 36-305. 
 
 468. Expert testimony: The opinion of 
 an ordinary witness, formed upon compari- 
 son of the writings alone, is not admissible. 
 No one but an expert can be allowed to give 
 an opinion formed upon such comparison ; 
 but to be an expert in regard to handwrit- 
 ing the witness need not be a man of any 
 particular calling : Hyde v. Woolfolk, 1-159 ; 
 Mixer v. Bennett, 70 . 
 
 469. The competency of the witnesses in 
 a particular case, held to be sufficiently 
 shown: Ibid. 
 
 470. The mere fact that a person is clerk 
 of the courts will not entitle him to testify 
 as an expert in regard to handwriting : Winch 
 V. Norman, 65-186. 
 
 471. Weight of expert testimony based 
 on comparison : Expert testimony as to the 
 genuineness of a signature, based upon com- 
 parison of handwriting, is of the lowest 
 order, and ought not to be allowed to over- 
 throw positive and direct evidence of credi- 
 ble witnesses who testify from personal 
 knowledge: Borland v. Walrath, 33-130. 
 
 472. Expert testimony as to handwriting- 
 is of the lowest order and of the most unsat- 
 isfactory character : Whitaker v. Parker, 42- 
 585. 
 
 As to weight of expert evidence in gen- 
 eral, see supra, § 460. 
 
 6. Evidence as to value and damages. 
 
 473. Other sales: In determining the value 
 of real property, testimony as to what tracts 
 of land in the same neighborhood have sold 
 
67g 
 
 EVIDENCE, I, 6. 
 
 Value and damages. 
 
 for is admissible only where it Is shown that 
 there is uniformity of the lands thus brought 
 into question with the land whose value is to 
 be determined: King v. Iowa Midland R. 
 Co., 34-458. 
 
 474. In such a case witnesses may testify 
 as to the price which other tracts in the 
 neighborhood have brought in actual sales, 
 the difference in the location and quality of 
 the two tracts being shown : Cherokee v. 
 Sioux City & I. F. Town Lot, etc., Co., 52-279. 
 
 475. A witness who has given his opinion 
 as to the value of land may give evidence as 
 to particular sales in the neighborhood and 
 the price obtained thereat, for the purpose of 
 showing his knowledge : Winlclemans v. Des 
 Moines Northwestern R. Co., 62-11. 
 
 476. Where it appeared that a witness had 
 sold some land near that in controversy ten 
 or twelve years before the trial, held, that 
 his evidence as to the price then obtained 
 was not competent as bearing upon the value 
 of the land in question, the period at which 
 the transaction occurred being too remote: 
 Everett v. Union Pacific R. Co., 59-243. 
 
 477. But evidence of the selling price of 
 other lots not shown to be similar to the ones 
 in question is not admissible in determining 
 the value of the latter: Cummins v. Des 
 Moines & St. L. R. Co., 63-397; Hollings- 
 worth V. Same, 63-443. 
 
 478. Where the value of a stallion was in 
 controversy, evidence as to what he was sold 
 for eighteen months previous to the time in 
 question and when he was not in as good a 
 condition, held not admissible : Gere v. Coun- 
 cil Bluffs Ins. Co., 67-373. 
 
 479. Hearsay : The knowledge which qual- 
 ifies a witness to testify as to value must 
 necessarily consist largely of hearsay, and it 
 is not error to allow him to answer as to 
 sales in the neighborhood of which he has 
 knowledge by hearsay only : Winklemans v. 
 Des Moines Northwestern R. Co., 63-11. 
 
 480. The price at which an article is sold 
 in a particular instance is evidence tend- 
 ing to show its market value: Buford v. 
 McGetohie, 60-398. 
 
 481. Other services: In an action for serv- 
 ices rendered, evidence of the sum received 
 by another person for the same services is not 
 admissible on the question of value: Foreyv. 
 Western Stage Co.. 19-535. 
 
 482. Rental v.llue: Where the question 
 was as to the amount of damage caused to 
 abutting property by the construction of a 
 x-ailway upon a city sti-eet, held, that evidence 
 of annoyance to occupants of property by 
 noise, escape of fire from engines, etc. , in the 
 operation of the road was admissible as bear- 
 ing on the question of rental value : Wilson 
 V. Des Moines, O. & S. R. Co., 67-509. 
 
 483. Opinions on questions of value: 
 Opinions are admissible in determining value : 
 Henry v. Dubuque <fc P. R. Co., 2-288, 310. 
 
 484. The value of personal property may 
 be established by the opinions of witnesses 
 who are first shown to know such value: 
 Anson V. Dwight, 18-341 ; Prosser v. Wapello 
 County, 18-827. 
 
 485. The opinion of a witness asto value 
 cannot be received without first laying a 
 foundation therefor by showing him pos- 
 sessed of sufiBcient knowledge of the subject 
 to form an opinion: Haight v. Kimbark, 
 51-13. 
 
 4SC. Who competent to give opinion: 
 The competency of a witness to testify re- 
 specting the value of any item of property is 
 not determined by any inflexible rule of law 
 as to the extent of his knowledge of such 
 property, but it is largely a matter bf discre- 
 tion with the trial court in the first instance, 
 the weight of his evidence being for the 
 jury : Sadler v. Bean, 37-439. 
 
 487. Opinions of witnesses acquainted with 
 the value of such property, as is in contro- 
 versy, in the market, are competent as evi- 
 dence to prove such value. But there can be 
 no presumption in the absence of a showing 
 that a witness is competent to form a correct 
 opinion on the subject, and until some show- 
 ing of comjietenoy is made the opinion of the 
 witness is not admissible: Daly v. W. W. 
 Kimball Co., 67-133. 
 
 488. Where property has not a market 
 value, as, for instance, vines or hedges on 
 real property, and it appears that the witness 
 has knowledge of the value of such property, 
 he may be permitted to give hie estimate 
 thereof: Lanning v. Chicago, B. & Q. R. Co., 
 68-502. 
 
 489. In an action for damages for breach of 
 contract to lease coal land for mining, held, 
 that an operator of coal-mines, knowing the 
 thickness of the vein, its convenience to 
 
EVIDENCE, I, 6. 
 
 679 
 
 Value and damages. 
 
 transportation and market, and the like, 
 might give his opinion as to the value of a 
 lease of the land for mining purposes : Cham- 
 bers V. Brown, 69-213. 
 
 490. The fact that a witness knows the 
 value of cornstalks for pasture in his neigh- 
 borhood, from six to nine miles from the 
 property in question, will not qualify him to 
 testify to tlie value of like stalks on such 
 property: Maridan v. Central Iowa R. Co., 
 69-537. 
 
 491. Evidence of a witness, in a prosecu- 
 tion for larceny of a seal-skjn coat, held 
 properly admissible and sufficient to support 
 the verdict, although the witness was not 
 shown to be possessed of any special knowl- 
 edge of the value of such an article : State v. 
 Finch, 70 . 
 
 492. Where the value of a blooded stallion 
 was in controversy, held, that a farmer en- 
 gaged in raising horses for the market was 
 competent to testify in regard to the animal, 
 whether he was acquainted with that particu- 
 lar breed of animals or not : Oere v. Council 
 Bluffs Ins. Co., 67-373. 
 
 493. A husband and wife who are owners 
 of and using household goods are competent 
 witnesses as to their value, without other 
 showing that they are acquainted with the 
 value of such property : Tubbs v. Garrison, 
 6&-44. 
 
 494. In ascertaining damages sustained by 
 the appropriation of land, it is not necessary 
 that the witnesses whose opinions are given 
 be shown to be experts. If it appear that 
 they know the quality and location of the 
 land, are residents and owners in the neigh- 
 borhood, etc., they may be competent : Chero- 
 kee V. Sioux City & I. F. Town Lot, etc., Co., 
 52-379. 
 
 495. Where it is claimed that the testi- 
 mony of a witness as to value is incompetent 
 by reason of his want of knowledge, etc., 
 that fact should be shown by evidence: 
 Dcane v. Garretson, 34-351. 
 
 49(5. The usual rule when a witness is 
 called to testify as to the value of jDropert)' 
 is to ask him generally if he has knowl- 
 edge of the value of the property in question 
 or of property of that kind. If he answers 
 that he has, he is allowed to state the value 
 of the property in question, and, on cross- 
 examination, his means of knowledge or 
 
 qualification to testify as to the subject in 
 question may be practically inquired into. 
 If he shows that his knowledge of values is 
 limited, his testimony is not for that reason 
 to be stricken out, but goes to the jury for 
 what it is worth : WinJclemans v. Des Moines 
 Northwestern R. Co., 62-11. 
 
 497. Where a witness has been examined 
 with reference to the value of property before 
 and after the appropriation thereof for right 
 of way, and has expressed an opinion as to 
 its value in each instance, he may state as a 
 ground of his opinion that before the appro- 
 priation the gi-ound was well adapted to resi- 
 dence purposes, which gave it its principal 
 value, and that after such appropriation it 
 was no longer adapted to such use : McClean 
 V. Chicago, I. & D. R. Co., 67-568. 
 
 498. Persons having had experience in tak- 
 ing care of the sick may give their opinion of 
 the value of board, lodging, care, etc., of the 
 sick, based upon a hypothetical case : Shafer 
 V. Dean, 29-144. 
 
 499. A witness who has examined books of 
 account and is acquainted with the parties 
 against whom accounts are found therein is 
 competent to testify as to the value of such 
 accounts in the aggregate without the pro- 
 duction of the books themselves : Dr-ummond 
 V. Stewart, 8-341. 
 
 500. The question as to whether a witness 
 has sho%vn himself competent to give an 
 opinion as to value is left largely to the dis- 
 cretion of the trial court, and its ruling 
 thereon will not be disturbed on appeal unless 
 manifest abuse of discretion is shown : 
 Smalley v. loiva Pacific R. Co., 36-571. 
 
 501. Opinions as to damages: The opinion 
 of a witness as to the amount of damages is 
 not admissible: Anson v. Dwight, 18-241; 
 Prosser v. Wapello County, 18-327; Cannoti 
 V. Iowa City, 34-203 ; Harrison v. Iowa Mid- 
 land R. Co., 36-333. 
 
 502. In determining the damages sus- 
 tained by adjacent property by reason of 
 change of grade of a street, a witness may be 
 asked as to the value of the property before 
 and after the change, but it is not competent 
 to ask him to give an opinion as to the effect 
 of such change in adding to or taking from 
 the value : Dalzell v. Davenport, 13-437. 
 
 503. Where the facts were not in evidence 
 as to the extent to which goods were dam- 
 
680 
 
 EVIDENCE, I, 6; U, 1. 
 
 Title to real property. — Proof. — Judicial notice. 
 
 aged, held, that an individual witness was 
 not competent to give an opinion in regard to 
 the amount of damages : Selz v. Belden, 48- 
 451. 
 
 504. Held not error to refuse to allow a 
 witness to state generally the amount of 
 damage done to a house and lot by a tenant, 
 a general estimate of damages not being 
 proper until it is shown that damages exist, 
 and the particular items thereof : Dougherty 
 V. Stewart, 43-648. 
 
 605. Value of services: Where a plaintiff 
 seeks to recover the value of services ren- 
 dered, evidence as to whether he was indus- 
 trious, careful and prudent in the rendering 
 of such services is admissible: L/yle v. Gray, 
 47-153. 
 
 As to materiality of evidence of value, 
 see supra, g§ 35-38. 
 
 1. Evidence of title to real property. 
 
 506. What sufficient cliaiu of title: 
 
 Where both parties claim title through a 
 common grantor, it is sufficient to prove the 
 derivation of title from him without proving 
 his title : Cooley v. Brayton, 16-10 ; Byers v. 
 Rodabaugh, 17-53. 
 
 507. A deed of a party claiming from a 
 grantor not shown to have had title is not 
 sufficient to establish title in the party claim- 
 ing it, nor to raise a presumption of actual 
 possession in such party : Wearin v. Munson, 
 63-466. 
 
 508. In order to establish title in himself, 
 a party must show not only a conveyance to 
 him from another, but trace the title to the 
 general government. The fact that a deed 
 offered in evidence for the purpose of estab- 
 lishing a party's title does not clearly de- 
 scribe the premises is not ground for refus- 
 ing to receive it : Heinrichs v. Terrell, 65-25. 
 
 509. Parol evideiice: To the general rule 
 that parol evidence is not admissible to prove 
 title to real estate, there are exceptions; if 
 the title paper is lost, its contents may be 
 shown; or a parol purchase of real estate 
 may be proved, followed by payment of the 
 purchase money or the taking of possession 
 under such contract; or if the vendor is 
 himself the witness to prove such sale, parol 
 evidence is admissible : Davis v. Strbhm, 17- 
 421 
 
 510. Where defendant sought to defeat 
 collection of his note given for the purchase 
 of land by proving that his gi-antor had nn 
 title, held competent for him to prove by 
 the parol testimony of his grantor that tlie 
 only title or claim that he had was the bond 
 from his grantor, not to show title but to 
 direct the investigation and show that the 
 title was worthless ; also for the purpose of 
 tending to show that such bond for title was 
 destroyed and to prove its contents. Whether 
 the witness could state th^t he had ascer- 
 tained that his grantor could not make title 
 would depend upon whether he had ascer- 
 tained it from personal examination of the 
 records and could state the chain of title so 
 that the deeds themselves,' or copies, could be 
 produced, and that there was no other title 
 of record : Ibid. 
 
 511. Sufficiency of evidence of title: One 
 who seeks to overturn a legal title must 
 have proof, clear, satisfactory and conclusive, 
 and not made up of loose and random con- 
 versations : Parker v. Pierce, 16-227. 
 
 And see further. Equity, [;§ 87-93. 
 
 512. Where a mother had procured land 
 from her husband nnder decree of divorce 
 and granted it to her daughter, and there 
 was nothing in the record to show but that 
 the daughter still held the legal title, though 
 the husband had obtained a judgment for 
 the land in an action against the mother 
 alone, subsequent to the conveyance, held, 
 in an action by the husband against a third 
 party for trespass, that he had failed to show- 
 title : O'Hagan v. Clinesmith, 24^249. 
 
 II. Peoof. 
 
 1. Judicial notice. 
 
 513. Days of the wcelt and montli : Courts 
 wiir take judicial notice of coincidences of 
 days of the week with days of the month ; 
 for instance, as to what days of the month 
 fall upon Sunday : Clough v. Qoggins, 40-325. 
 
 514. History, etc. : A court may take ju- 
 dicial notice of the history and condition of 
 the country in which it acts: Ferrall v. 
 Davis, 1-560. 
 
 515. Common law: Matters of national 
 history are recognized by courts, as, for in- 
 stance, that the common law prevails in tlie 
 
EVIDENCE, II, 1. 
 
 681 
 
 Judicial notice. 
 
 states of the United States which were orig- 
 inally colonized from England: Holmes v. 
 Mallett, Mor., 82. 
 
 516. General election: The courts of the 
 state will take judicial notice as to the day 
 upon which the general election is held and 
 as to what officers are to be voted for at such 
 election: State v. Minnick, 15-123. 
 
 517. Names of .judges: While the supreme 
 court knows judicially the judges of the dif- 
 ferent judicial districts, and, in the absence 
 of any showing to the contrary, that the 
 courts in such districts are held by such 
 judges, yet it cannot know that a judge and 
 a person of the same name appearing as an 
 attorney in the case are one and the same per- 
 son : Ellsworth v. Moore, 5-486. 
 
 518. Customs of meixhants: A court will 
 take judicial notice of the general customs 
 and usages of merchants and of whatever 
 ought to be known within the limits of their 
 jurisdiction. Therefore, lield, that the system 
 by which nearly all banks transact monetary 
 affairs by the use of checks and certificates 
 of deposit without the actual handling of 
 bank-notes or coin is so well known and un- 
 derstood that judicial notice thereof may be 
 taken by the courts, and /t may be considered 
 that persons dealing with banks have acted 
 with reference to such custom: British <& 
 Am. M't'ge Co. v. Tibballs, 63-468. 
 
 519. Matters of general knowledge: A 
 court can take judicial notice of the fact that 
 a large part of a threshing machine is com- 
 posed of materials which are of some value 
 apart from the use to which the machine is 
 intended to be applied : Case Threshing Ma- 
 chine Co. V. Haven, 65-359. 
 
 520. The fact that grass cannot be cut and 
 made into hay after the month of September 
 is a fact within the knowledge of all men 
 and of which the courts will take judicial 
 notice: Raridan v. Central Iowa R. Co., 69- 
 527. 
 
 521. The admission of the testimony of a 
 witness as to matters of common observation 
 known to all men, which testimony is in ac- 
 cordance with such common observation, 
 cannot be considered as prejudicial : State v. 
 Smith, 46-670. 
 
 522. The court cannot takn judicial notice 
 of the fact that a railroad corporation is 
 popularly known l>y the initial letters of the 
 
 words constituting its corporate name : Ac- 
 cola V. Chicago, B. & Q. R. Co., 70 . 
 
 523. Public surveys are within the judi- 
 cial notice of the courts, and they will take 
 notice within what civil township and county 
 any particular section of laud according to 
 the public survey will fall : Wright v. Phil- 
 lips, 2 G. Gr., 191; Hypfner v. Walsh, 8 G. 
 Gr., 509. 
 
 624. The court will take judicial notice 
 that a certain township in a certain range 
 according to the government survey is sit- 
 uated within a particular county. Also, as 
 to the meaning of "north" and "west" as 
 applied to a township and range: Fogg v. 
 Holcomb, 64-621. 
 
 525. Boundaries of state: The state 
 courts take judicial notice that the island of 
 Rock Island is within the jurisdiction of the 
 state of Illinois, and forms a part of its ter- 
 ritory for judicial and other purposes : Gil- 
 bert V. Moline Water Power, etc., Co., 19-319. 
 
 526. Division of state: In a particular 
 case, held, that t|ie courts of this state would 
 take judicial notice of the division of the 
 state of Virginia and the formation of the 
 new state of West Virginia : Darrak v. Wat- 
 son, 36-116. 
 
 527. Location of town: The courts will 
 take judicial notice that a certain town is a 
 county seat, if such be the fact, and as to 
 what county it is located in : State v. Laffer, 
 38-422. 
 
 528. Charters of cities and towns: The 
 courts will take judicial notice of the char- 
 ters or laws under which cities are incor- 
 porated: Siier V. Oskaloosa, 41-353; Lytle i: 
 May, 49-224. 
 
 529. And it is not necessary, therefore, to 
 allege or prove the powers possessed by a city 
 under the laws of the state : Stier v. Oska- 
 loosa, 41-353. 
 
 530. Where a to-mi or city is incorporated 
 by special act of the legislature, the statute 
 partakes of the nature of a jjublic act and 
 the courts take judicial notice of it, but the 
 fact that the particular village or town has 
 availed itself of the provisions of the stat- 
 ute authorizing incorporation in a particular 
 manner, and has become incorporated there- 
 under, is private in its character, and the 
 courts are not required to take judicial notice 
 of it: Hard v. Decorah, 43-313. 
 
682 
 
 EVIDENCE, 11, 2. 
 
 Records and documents ; admissibility and proof of. 
 
 531. City ordinances: The courts cannot 
 take judicial notice of the ordinances of a 
 city: Oarvinv. Wells, 8-286; Wolf v. Keokuk, 
 48-129. 
 
 t)32. The mayor of a city may take judi- 
 cial notice of the city ordinances in a prose- 
 cution for their violation: Conboy v. Iowa 
 City, 2-90 ; State v. Leiber, 11-407 ; Laporte 
 City V. Goodfellow, 47-572. 
 
 Statutes of another state cannot be taken 
 judicial notice of, but must be pleaded and 
 proved : See infra, %% 558-566. 
 
 533. Notice of its own records: The court 
 is supposed to know the genuineness of its 
 ovTD. records and signature of its officers: 
 State V. Postlewait, 14r-446. 
 
 534. A court will not in one case take ju- 
 dicial notice of what has transpu-ed in an- 
 other case between different parties : Baker 
 V. Mygatt, 14-131. 
 
 535. A court cannot take judicial notice 
 in one case of its records in a different case. 
 So held where it appeared that the opinion 
 of the supreme court in a different case was 
 introduced in evidence on the trial in the 
 court below, but was not set out in the ab- 
 stract on appeal : Enix v. Miller, 54-551. 
 
 536. The court will, in a proceeding for 
 contempt, take judicial notice of its own 
 orders in the matter out of which the alleged 
 contemjDt grew: Jordan v. Circuit Court, 
 69-177. 
 
 2. Records and documents; admissi- 
 Mlity and proof of. 
 
 537. Aiitlientication of domestic judg- 
 ments: The record of a judgment is( suf- 
 ficiently authenticated if the cei'tiflcate of 
 the clerk identifies the transcript to be a 
 true copy, and there is a further certificate 
 of the presiding judge that such attestation 
 is in due form of law : Lewis v. Sutliff, 2 
 G. Gr., 186. 
 
 538. Where a party relies upon a prior ad- 
 judication, he should introduce iu evidence 
 not only a copy of the judgment but also a 
 copy of the pleadings : Campbell v. Ayers, 6- 
 339. 
 
 539. A copy of the record of the judg- 
 ment properly authenticated is competent 
 evidence without proof of the official charac- 
 ter of the person rendering the judgment: 
 Railroad Bank v. Evans, 33-303. 
 
 540. Under a statutory provision (Code, 
 § 3713) authorizing the proof of a judicial 
 record by the production of the original or by 
 a copy thereof, certified, etc., it is not neces- 
 sary to account for the original before in- 
 troducing a copy : Diipont v. Downing, 6-173. 
 
 541. Foreign judgment: The attestation 
 of the copy of the record in another state 
 must be according to the form used in the 
 state from which the record comes ; Roop v. 
 Clark, 4. G. Gr., 394. 
 
 542. Attestation of a foreign judgment in 
 the name of the clerk by a deputy, together 
 with the presiding judge's certificate of the 
 official character of such clerk and deputy, 
 and that the certificate is in due form of law, 
 held sufficient: Young v. Thayer, 1 Q. Gr., 
 196. 
 
 543. Under the state statute (Code, § 3713) 
 the certificate of a judge, whether the pre- 
 siding officer of the court or not, to the attes- 
 tation by the clerk, is sufficient: Simons v. 
 Cook, 29-334. 
 
 544. The certificate of the judge is conclu- 
 sive that the attestation of the record is in 
 due form, and if it appears to be made by a 
 deputy in the name of the principal, it is con- 
 clusive as to the authority of the deputy to 
 make such certificate: Oreasons v. Davis, 
 9-219; Young v. Thayer, 1 G. Gr., 196. ' 
 
 545. Parol evidence may be received to 
 show the practice and usage in the courts of 
 another state, and whether a record conforms 
 thereto, and its effect: Oreasons v. Davis, 
 9-219. 
 
 546. Where a foreign judgment is intro- 
 duced in evidence on the trial in the court 
 below, and it appears not to be sufficiently 
 formal and authoritative as a judgment on 
 its face to authorize a recovery upon ft, 
 the presumption will be on appeal that it was 
 supported by proper evidence to entitle it to 
 faith and credit, unless the contrary appears 
 by affirmative showing : Clemmer v. Cooper, 
 34-185. 
 
 547. The method prescribed by act of con- 
 gress for authenticating a judicial record is 
 not exclusive of that which a state may 
 adopt with reference to such an authentica- 
 tion in its own courts: Latterett v. Cook, 
 1-1. 
 
 548. Certificate of successor: A certifi- 
 cate of the clerk of the cii-cuit court of West 
 
EVIDENCE, 11, 3. 
 
 683 
 
 Eecords and documents ; admissibility and proof of. 
 
 Virginia, stating that he was the successor 
 of the clerk of the county court of Virginia 
 in which the judgment was rendered before 
 the formation of the state of West Virginia, 
 lield competent evidence of that fact and of 
 the existence of the judgment: Darrah v. 
 Watson, 36-116. 
 
 549. Judgments of justices of the peace: 
 The provisions of the statutes of the United 
 States as to the mode in which the judicial 
 proceedings of a state may be authenticated 
 so as to be given effect in other states, refer 
 only to courts of genei-al jurisdiction and not 
 to those of inferior jurisdiction, such as jus- 
 tices of the peace: Oay v. Lloyd, 1 G. Gr., 78. 
 
 550. Under the statutory provision (Code, 
 ,^ 3714) as to the method of authenticating 
 the judgments of a justice of the peace in 
 another state, the certificate of the clerk of 
 a court of record within the county in which 
 the justice of the peace resides should sliow 
 that tlie justice of the peace was a justice 
 within the same county, and also that he was 
 an acting justice of the peace at the time of 
 signing the certificate : Guesdorf v. Oleason, 
 10-495. 
 
 551. The certificate of a retired justice of 
 the peace in relation to his former official 
 proceedings has no more weight than that 
 of a mere stranger : Brown v, Scott, 2 G. Gr., 
 454. 
 
 552. The successor in office of a retired 
 justice is the proper person to make the 
 certificate here contemplated, as to any of 
 the official proceedings of his predecessor 
 shown by the records in his office, and the 
 certificate of the clerk of a court that the 
 justice is an acting justice and his signature 
 genuine is sufficient: Railroad Bank v. 
 Evans, 83-202. 
 
 553. Where, in the body of a certificate of 
 a justice of the peace, he states his official 
 character, the failure to affix his official des- 
 ignation to the signature of the certificate 
 will not affect its validity : Ibid. 
 
 554. The admission in evidence of the 
 ti'anscript from the docket of a justice of 
 the peace in- a foreign state, held not error 
 where such transcript was embraced in the 
 certified copy of proceedings in the court of 
 common pleas where the judgment sued on 
 was rendered on appeal : Clemmer v. Cooper, 
 34-185. 
 
 555. Laws of this state: The original acts 
 of the general assembly, deposited with the 
 secretary of state, as provided by law, are 
 the ultimate proof of the statutes, whatever 
 errors there may be in the printed copies of 
 such statutes. The court will inform itself 
 and take judicial notice of the true reading 
 of the statutes as thus shown: Clare v. State, 
 5-509 ; commented upon in State v. Donehey, 
 8-396. 
 
 556. The acts thus deposited are the bills 
 which i-eceive the signatures of the officers, 
 etc., and behind them it is impossible for 
 any court to go for the purpose of ascertain- 
 ing what the law is: Duncombe v. Prindle, 
 12-1. 
 
 557. The enrolled bill, duly signed and 
 filed in the office of the secretary of state, is 
 at least presumptive evidence of its due 
 enactment, and the court will take judicial 
 notice of what appears from such record to 
 be the law. The fact that the journal of one 
 of the houses of the legislature fails to show 
 that the statute passed such house will not be 
 sufficient to overcome such presumption: 
 Jordan v. Circuit Court, 69-177. 
 
 558. laws of another state: By statutory 
 provision (Code, § 3718), printed copies of the 
 statute laws of a state purporting to have 
 been published under its authority are ad- 
 missible as evidence of such laws : Webster 
 V. Bees, 33-369. 
 
 559. But the method here provided does 
 not exclude other methods, such as producing 
 copies dulj- authenticated under the seal of 
 the state : Latter ett v. Coole, 1-1. 
 
 560. The testimony of witnesses, however, 
 would not be admissible to prove the statutes 
 of another state : Ibid. 
 
 561. Parol evidence of a witness familiar 
 with the laws of another state is not admis- 
 sible for the purpose of showing the powers 
 of a notary public under the statutes of that 
 state : State v. Cross, 68-180. 
 
 562. Parol evidence of a person familiar 
 with the practice in other states may be re- 
 ceived to show that certain books are com- 
 monly received by the courts of that state as 
 evidence of the statute laws thereof: &rea- 
 sons V. Davis, 9-219. 
 
 563. Presumption as to laws of another 
 state: Courts do not take judicial notice of 
 the statutes of another state. If a party re- 
 
684 
 
 EVIDENCE, U, 2. 
 
 Records and documents ; admissibility and proof of. 
 
 lies upon such statutes, he.must plead them 
 as any other fact ; and it will not be sufficient 
 to refer to them by their title or date of 
 approval, nor by stating what are their gen- 
 eral provisions and requirements: Carey v. 
 Cincinnati & C. R. Co., 5-357; Taylor v. 
 Runyan, 9-533. 
 
 564. The presumption is that the laws of a 
 foreign state are the same as our own. If it 
 is claimed that they are different from our 
 own, that fact must be averred and proved : 
 Bean v. Briggs, 4-464; Crafts v. Clark, 31- 
 77; S. C, 38-237; Sayre v. Wheeler, 31-112; 
 Sayre v. Wheeler, 33-559 ; Stephens v. Will- 
 iains, 46-540; Church v. Crossman, 49-444; 
 Webster v. Hunter, 50-315 ; Neese v. Farmers' 
 Ins. Co., 55-604; Hadley v. Gregory, 57-157. 
 
 565. In a prosecution for bigamy, evidence 
 of a man-iage in another state which is suffi- 
 cient in form to be valid under the laws of 
 this state will be sufficient, the statutes of 
 the state where the marriage was celebrated 
 being presumed to be the same as those of 
 this state in the absence of proof to the con- 
 trary: State V. Nadal, 69-478. 
 
 566. The presumption is that the rule of 
 law on a particular question is the same in 
 another state as in this state: Leiber v. 
 Union Pacific R. Co., 49-688. 
 
 567. Legislative proceedings: The jour- 
 nals of the respective houses of the general 
 assembly are competent evidence to show 
 the proceedings of such houses: Koehler v. 
 Hill, 60-543. 
 
 City ordinances: A court cannot take 
 judicial notice of the ordinances of a city: 
 See mpra, g§ 531, 533. 
 
 568. In a proceeding under a city ordi- 
 nance, it is competent to prove publication 
 thereof by introducing the original ordinance 
 with a certificate of the clerk that it was reg- 
 ularly enacted and published as required. 
 Such evidence is original, not secondary: 
 Des Moines v. Casady, 31-570. 
 
 569. Evidence in a particular case held 
 sufficient to identify a certain book as the 
 ordinance book of a city: Ottumwa v. 
 Schaub, 52-515. 
 
 570. Records of a board of directors: 
 Entries in a record book of a board of direct- 
 ors of a district township, held sufficiently 
 verified in a particular case : Cooper v. Nel- 
 son, 38-440. 
 
 571. Protestof a notary public: The cer- 
 tificate of protest is only evidence of notice 
 when it recites that notice was given : Sather 
 V. Rogers, 10-231 ; Thorp v. Craig, 10-461. 
 
 572. It is only evidence of the facts therein 
 recited ; and where it shows that the notice 
 was directed to the indorser at a particular 
 place it will not be presumed that such place 
 was the residence of such indorser: Brad- 
 shaw V. Hedge, 10-403. 
 
 573. If the certificate states that notices 
 of protest properly addressed were deposited 
 in the postoffice, it will be presumed that the 
 postage was prepaid : Brooks v. Day, 11-46. 
 
 674. When the certificate of protest states 
 that the notary notified the proper parties in 
 a certain manner, the credit due the certifi- 
 cate will generate the presumption that the 
 mode adopted accomplisHed the result certi- 
 fied to, unless it affirmatively appear that the 
 method adopted could not have done so ; but 
 if the notary only certifies as to the steps 
 takem, then, to make out a prima facie case, 
 it must further appear that such steps would 
 effectuate notice : Wamsley v. Rivers, 34-463. 
 
 575. The fact that the certificate is dated 
 at a time subsequent to that of the dishonor 
 and protest will not render it incompetent: 
 Chatham Bank v. Allison, 15-357. 
 
 576. The protest of a notary is not receiv- 
 able without his seal, but such defect may 
 be cured by the affixing of the seal by the 
 notary at the trial: Rindskoff v. Malone, 
 9-540. 
 
 577. The certificate of a notary public as 
 to the protest of a bill or note is not admis- 
 sible against defendant in a criminal case, as 
 he is entitled to be confronted with the wit- 
 nesses against him : State v. Reidel, 26-480. 
 
 578. Instruments duly admowledged: 
 The certificate of acknowledgment is prima 
 facie evidence of the fact of acknowledgment,, 
 but not conclusive, and may be overcome by 
 other evidence, the burden of proof being 
 upon the party seeking to rebut the effect of 
 the certificate : Morris v. Sargent, 18-90. 
 
 579. The right to contradict the certificate 
 exists, for instance, when fraud is supposed 
 in obtaining the acknowledgment, or when 
 the certificate is alleged to be false, and it is 
 proposed to show that the deed was never ac- 
 knowledged: Tatum V. Goforth, 9-247. 
 
 580. But it is not contemplated that a de- 
 
EVIDENCE, U, 3. 
 
 685 
 
 Eecorda and documents ; admissibility and proof of. 
 
 fective certificate is to be supplied or made 
 good by other evidence ; O'Farrell v. Simplot, 
 4-381. 
 
 581. Tlie deed, such as here contemplated, 
 being in the custody of the grantee, will be 
 presumed to have been delivered, and being 
 in writing will import a consideration, and 
 these facts need not be proved before oflEer- 
 ing the instrument in evidence: Wolverton 
 V. Collins, 34-388. 
 
 5S2. Recitals in an instrument which is 
 admissible by reason of acknowledgment are 
 prima facie evidence of the facts recited: 
 Beal V. Blair, 33-318. 
 
 583. A deed which is not properly ac- 
 knowledged may still be received in evidence : 
 Gould V. Woodward, 4 G. Gr., 82. 
 
 And see further, Acknowledgment, 
 g§ 14-22. 
 
 581. In order to entitle a written instru- 
 ment duly acknowledged to be read in evi- 
 dence without proof of execution under 
 the statutory provision (Code, § 3656) that 
 private writings acknowledged in the man- 
 ner- prescribed for the acknowledgment of 
 conveyances of real property may be read in 
 evidence without further proof, it must ap- 
 pear, if the instrument was a mutual one, 
 that it was so executed as to be binding upon 
 both parties, and an acknowledgment by one 
 will not be sufBcient: Chicago, B. & Q. R. 
 Co. V. Lewis, 53-101. 
 
 585. Record of marriages: Under statu- 
 tory provision making the court register of 
 a marriage receivable as evidence thereof, it 
 is not necessai-y to show that the one sol- 
 emnizing the marriage was officially author- 
 ized, and it is permissible to show a mistake 
 in the wife's name : Verholf v. Van HouvJen- 
 lengen, 21-429. 
 
 58G. To prove a marriage contract m a 
 state where the law requires the officiating 
 minister or officer to return a certificate of 
 the fact, which is to be recorded, an exem- 
 plification of the certificate and not of the 
 clerk's record is the proper evidence : Niles v. 
 Sprague, 18-198. 
 
 Further. as to evidence of Marriage, see 
 that title. 
 
 587. Certificate from land office: In an 
 action for a breach of warranty in a deed for 
 land purchased as swamp, held, that a certi- 
 fied abstract from the United States land 
 
 office was admissible in evidence to show 
 that the land in question was not certified as 
 swamp, and to throw upon defendant the 
 burden of proving that the land had passed 
 under the swamp grant: Shorthill v. Fer- 
 guson, 44-249. 
 
 588. Under the provisions of a railroad land 
 grant authorizing the selection of indemnity 
 lands, and an act of congress providing that 
 in such case lists of the land certified by the 
 commissioner of the general land office should 
 be regarded as conveying the fee-simple 
 title, and under state statute (Code, g 3702) 
 allowing the production in evidence of duly 
 certified copies of the records, etc., in any 
 public office, held, that a duly certified copy 
 of the original certified lists of selections 
 under the grant, on file in the office of the 
 commissioner of the general land office, was 
 properly admitted in evidence : Chicago, B. & 
 Q. JR. Co. V. Lewis, 53-101. 
 
 589. Where letters were on file in the 
 state land office which would be themselves 
 admissible in evidence, held, that they might 
 be proven by copies certified by the register: 
 Bellows V. Todd, .34^18, 26. 
 
 590. The provisions of the statute with 
 reference to duplicate receipts of the receiver 
 of a land office, held applicable to the re- 
 ceiver of the Des Moines river land office: 
 Stone V. McMahan, 4 G. Gr., 72. 
 
 591. The provision of statute (Code, § 3710) 
 making the certificate of the register or re- 
 ceiver of any land office as to the entry of 
 land within his district presumptive evidence 
 of title relates to the remedy and applies to 
 all actions in the courts of the state whether 
 the land is situated in tlie state or not : Pier- 
 son V. Reed, 36-257. 
 
 592. Where the statute requires an officer 
 to make a statement or certificate in writing, 
 such writing is competent evidence of the 
 fact stated or certified: Clark v. Polk County, 
 19-248. 
 
 593. C'ertifled copies: A certified copy of 
 a paper in a public office, but which is of 
 such nature that it is not authorized by law 
 to be kept there, is not receivable in evidence : 
 Morrison V. Coad, 49-571. 
 
 594. Parol evidence is not competent to 
 correct a mistake in a duly certified copy of 
 a record : Monk v. Corbin, 58-503. 
 
 505. A copy of a public document, or what 
 
686 
 
 EVIDENCE, II, 2, 3. 
 
 Records and documents.— Primary and secondary. 
 
 purports to be such copy, found in the cus- 
 tody of a public officer, is not admissible in 
 evidence under the rule admitting public 
 documents, unless it be properly authenti- 
 cated or proved to be correct: Pfotzer v. 
 Mullaney, 30-197. 
 
 Certified copies of instruraents recorded 
 in the recorder's office are not admissible, 
 unless the loss of the original is shown or 
 the failure to produce it is othervrise ex- 
 cused : See infra, § 615. 
 
 596. Certificate as to contents: The cer- 
 tificate of the custodian of a record stating 
 its contents is not admissible in proof thereof . 
 Neither vpill such certificate be received as 
 evidence of the contents of a lost or destroyed 
 record ; nor can facts vyhich are required to 
 be of record, but which have been omitted, 
 be proved by the certificate of the officer re- 
 quired to keep such record : Goodrich v. Con- 
 rad, 24^-254,. 
 
 597. The auditor's plat-book made up 
 from records in the recorder's office is not 
 admissible in evidence as a duly certified 
 copy of the records of conveyances, to estab- 
 lish the title of the party whose name is en- 
 tered thereon : Heinrichs v. Terrell, 65-25. 
 
 598. The reports of the register of the 
 state land office are not receivable in evi- 
 dence : Oordori v. Bucknell, 38-^88. 
 
 599. Subscribing' witnesses: Where it is 
 shown that the subscribing witness to an in- 
 strument is out of the state, or that his place 
 of lesidence is not known, and that diligent 
 inquiry has been made to find him, other evi- 
 dence is admissible to prove the execution of 
 the instrument: Bollinger v. Davis, 29-512. 
 
 GOO. Letters received in reply to others 
 proved to have been sent to a party are ad- 
 missible in evidence without proof of the 
 signature of such party: I/yon v. Railway 
 Passenger Assurance Co., 46-631. 
 
 601. Letters purporting to be written by 
 one party to another relating to the subject 
 in controversy between them, received 
 through the mail, and purporting to be in 
 answer to letters written by the other party, 
 are admissible in evidence, although written 
 by a type- writer, and in the absence of direct 
 evidence that they were written by the party 
 by whom they purport to have been written 
 or by his directions : Davis v. Robinson, 67- 
 855. 
 
 C02. Signature: Where a witness in liis 
 deposition produced certain wiitten orders 
 purporting to be signed by defendant, held, 
 that such orders were admissible without 
 proof of defendant's execution thereof, it be- 
 ing time enough to prove such fact when 
 their admissibility was objected to for that 
 reason : Davis Sewing Machine Co. v. McGin- 
 nis, 45-538. 
 
 003. Evidence of the genuineness of the 
 signature, when offered for the purpose of 
 admitting a written instrument to the jury, 
 is addressed to the court, and though it may 
 not have been sufficient at the time of the 
 introduction of the instrument, yet if such 
 genuineness is afterwards established, the 
 eri'or in allowing the introduction of the in- 
 strument at the time will be without preju- 
 dice and not a ground for reversal : Daven- 
 port V. Cumviings, 15-219. 
 
 As to the method of putting in issue the 
 genuineness of a signature to a written in- 
 strument and the proof necessary to estab- 
 lish such signature, see Pleadings, V, d. 
 
 That the instrument may be introduced 
 before the proof of signature is made, the 
 order'of introduction of evidence being dis- 
 cretionary with the court, see infra, § 1238. 
 
 3. Primary and secondary evidenct; 
 the hest evidence. 
 
 604. Obligation to produce the best evi- 
 dence: No evidence shall be received which 
 is merely substitutionary in its nature so long 
 as original evidence can be had : Williams v. 
 Heath, 22-519. 
 
 605. The fact that a party has a life lease 
 on real property, such lease being in writing, 
 must be proven by the wi'itten lease itself, 
 unless its absence is properly accounted for. 
 Until" it is accovmted for, parol proof of the 
 contents will be inadmissible: Wallace v. 
 Wallace, 62-651. 
 
 606. Where the testimony in a foreclosure 
 suit was reduced to writing and made part 
 of the record, held, that such record was the 
 best evidence of what the testimony was, 
 and it was not proper to ask a witness what 
 he testified to on such trial : Gaston v. Austin , 
 52-35. 
 
 607. Where a family record is admissible 
 
EVIDENCE, II, 3. 
 
 687 
 
 Primary and secondary ; the best. 
 
 in evidence, the original mnst be produced, 
 and the testimony of a witness, even though 
 given from the record before him, is second- 
 ary and not admissible: Greenleaf v. Du- 
 buque <Sb S. O. B. Co., 30-301. 
 
 60S. "Where the question of incorporation 
 is in issue, parol evidence to prove incorpora- 
 tion is not competent, the fact being such 
 that there must be written evidence thereof : 
 Jones V. Hopkins, 32-503. 
 
 609. Testimony of an agent as to what he 
 wrote to his principal, held not admissible 
 without accounting for the absence of the 
 letter itself: Gimbel v. Salomon, 54-389. 
 
 610. A witness cannot be asked whether a 
 bill of invoice seen by him at a previous 
 time covered certain goods in question, the 
 bill being, until its loss or absence is ac- 
 counted for, the best evidence of its contents : 
 Sunberg v. Babcock, 66-515, 
 
 611. The officer's return on an execution 
 is the evidence as to whether a levy has been 
 made, and, if so, what property is covered by 
 it. If this return is lost, parol evidence can 
 be introduced as in case of any lost record, 
 but it must be confined to evidence of the 
 contents of the lost return: Le Barron v. 
 Taylor, 53-637. 
 
 612. A certified copy of the oflicer's return 
 on an execution is admissible in evidence 
 without accounting for the original : Dupont 
 V. Downing, 6-173. 
 
 613. Service of original notice may be 
 proven as well by the copy of the notice 
 served upon defendant and certified by the 
 ofiicer as being a true copy as by that on 
 which the officer makes his return : Ilollen- 
 beck V. Stanberry. 38-325. 
 
 ,614. Other notices: Proof of service of a 
 notice may be made by the oath of any per- 
 son cognizant of the fact, and when it is 
 shown that the paper oflEered in proof of such 
 service is a true copy of the original, such 
 proof being by affidavit or the oath of the 
 person making the service, a copy of such af- 
 fidavit and in connection with such oath is 
 competent evidence although the opposite 
 party has not been required to produce the 
 original notice and its loss or destruction is 
 not shown : McLenon v. Kansas City, St. J. 
 & C. B. R. Co., 69-320. 
 
 615. Contents of recorded instrument: 
 Under the statute making the record of an 
 
 instrument duly acknowledged and recorded, 
 or a certified copy of such record, competent 
 evidence of the contents thereof (Code, 
 § 3660), the record of such instrument is not 
 admissible as evidence unless it is shown 
 that the original is lost or does not belong to 
 the party wishing to use the same or is not 
 within his control: Williams v. Heath, 32- 
 519 ; Aekley v. Sexton, 34-330 ; Courtright i: 
 Deeds, 37-503; Jaffray v. Thompson, 65-332; 
 State V. Penny. 70^—. 
 
 616. What sufficient showing as to insi- 
 billty to produce: Where it is not shown 
 that the instrument is lost, the party desiring 
 to introduce a copy thereof should show both 
 that it does not belong to him and that it is 
 not under his control ; but it will not be con- 
 sidered to be within his control merely from 
 the fact that he may compel its production 
 by a subpoena duces tecum,: McNichols r. 
 Wilson. 43-385. 
 
 61 7. In a criminal prosecution where the 
 introduction of a mortgage in evidence be- 
 came material in behalf of the state, held, 
 that the testimony of the prosecutirig wit- 
 ness, that he did not have possession of tlie 
 original instrument, was not sufficient show- 
 ing to authorize the admission of secondary 
 evidepce : State v. Penny, 70 . 
 
 618. Where it was testified by the attw-ney 
 of a party that the party offering in evidence 
 the record of a deed did not have the original 
 deed and that he could obtain no knowledge 
 as to where it was, held, that the record 
 should have been admitted : Olleman v. Kel- 
 gore, 53-38. 
 
 619. Where a party offering in evidence a 
 deed proved that application had been made 
 to a person who ought to have had the deed, 
 and search had been made among papers 
 among which it probajsly would have been 
 found, without success, held, that secondary 
 evidence was properly admitted: Laird v. 
 Kilbourne, 70 . 
 
 620. It does not follow that deeds belong 
 to a grantee simply because they are executed 
 to his grantor. They may contain a descrip- 
 tion of many other tracts of land owned by 
 such grantor or his other grantees : McNichols 
 V. Wilson, 43-385. 
 
 621. Where it appeared that the original 
 was part of the files of a case in the supreme 
 court and could have been readily procured. 
 
688 
 
 EVIDENCE, II, S. 
 
 Primary and secondary ; the best. 
 
 held, that a copy was not admissible in evi- 
 dence: Byington v. Oaks, 32-488. 
 
 622. But where a deed had been intro- 
 <luced in evidence in a case in another 
 county and was in the hands of the court 
 there, held, that it was sufficiently shown 
 not to be in the possession or under the con- 
 trol of the party : Ingle v. Jones, 43-286. 
 
 623. Proof of deliyery: The provisions of 
 statute as to the admissibility of the record 
 of an instrument in evidence do not dispense 
 with the necessity of proof of delivery of the 
 original in cases where such proof would be 
 necessary, if the original itself were intro- 
 duced : Foley v. Howard, 8-56. 
 
 624. Land patents: The statutory pro- 
 vision as to the introduction in evidence of 
 the record of instruments duly acknowledged 
 and recorded was not sufficient to make the 
 record copy of a patent of lands from the 
 United States admissible in evidence : Curtis 
 V. Munting, 6-536. (But now see the stat- 
 utory provision, 16 G. A. , ch. ] 0, McClain's 
 Ann. Stats., 935.) 
 
 As to proof of lost deeds, etc., to establish 
 title, see further, supra, §§ 509, 510. 
 
 625. What deemed primary evidence: 
 In an action upon a subscription to the capi- 
 tal of a railway corporation, it appeared that 
 at a meeting called for the purpose, the 
 names of the subscribers and amounts sub- 
 scribed were vv-ritten by the solicitors of the 
 company upon a small book or slip of paper, 
 and afterwards transcribed by an officer of 
 the company into the book offered in evi- 
 dence, under authority conferred at the meet- 
 ing so to do ; held, that the book and slips of 
 paper used at the meeting were but memo- 
 randa of the authority conferred upon the 
 officer, and the book upon which they were 
 finally entered became the original contract 
 of subscription and was properly admitted in 
 evidence without proof of the loss of the 
 memoranda: Iowa & M. JR. Co. v. Perkins, 
 28-231. 
 
 626. Where the written contract is Toid : 
 Where an instrument evidencing a written 
 contract is invalid so as not to be admissible 
 in evidence, but the contract itself remains 
 unaffected, if by the rules of law it is such as 
 may be shown by parol had there been no 
 written instrument, the attempt to reduce it 
 to writing will not exclude parol evidence of 
 
 the contract: McAfferty v. Hale, 24-355; 
 Leach v. Hale, 31-69. 
 
 627. Parol evidence deemed primary, 
 Tfhen: Parol evidence of the fact that a sale 
 of land was made in writing by a quitclaim 
 deed is admissible : Trimble v. Shaffer, 3 G. 
 Gr., 233. 
 
 628. Where the question was whether a 
 note had been canceled by the taking of a 
 new note in lieu thereof, held, that parol evi- 
 dence as to whether the new note had been 
 taken in place of the old one was admissible 
 as primary evidence, although the new note 
 was not produced : Morrison v. Myers, 11- 
 538. 
 
 629. Though evidence of the contents of a 
 written notice cannot be admitted without 
 accounting for the absence of the writing, 
 yet the fact of notice may be stated : Bur- 
 lington Gas Light, etc., Co. v. Greene, 28-289. 
 
 630. Where the question is whether as a 
 fact a certain wi-itten contract was made and 
 not as to the terms thereof, parol evidence as 
 to the existence of the contract is admissible: 
 St. Louis & G. R. R. Co. v. Eakins, 30-279. 
 
 631. Parol evidence as to the fact of mak- 
 ing a vsT-itten instrument will not be second- 
 ary : Bish V. Hawkeye Ins. Co., 69-184. 
 
 632. A surveyor may state the result of his 
 survey although based upon a record: Messer 
 V. Reginnitter, 32-312. 
 
 633. When the question whether a person 
 doing an act was an officer arises between 
 third persons, oral evidence that he was such 
 officer is admissible: Gourley v. Hankins, 
 2-75. 
 
 634. The fact of marriage in a prosecu- 
 tion for adultery need not be established by 
 record evidence, and testimony of a party 
 present at the time of the marriage is com- 
 petent evidence of the fact : State v. Hazen, 
 39-648. 
 
 635. Items of acconnt may be testified to 
 by a witness although the account itself is 
 not produced: Wilson Sewing Machine Co. 
 V. Bull, 52-554. 
 
 636. Excuse for non-production of orig- 
 inal, what snfflcient: Where it does not ap- 
 pear that an instrument at one time in the 
 possession of the party is lost or beyond his 
 control, he cannot introduce secondary evi- 
 dence of the contents thereof: Hawkins v. 
 Rice, 40-435. 
 
EVIDENCE, II, 3. 
 
 689 
 
 Primavy and secondary ; the best. 
 
 637. Secondary evidence cannot be pro- 
 duced to prove the contents of a written in- 
 strument unless proper steps have been taken 
 to require its production or prove its loss, 
 even though it may appear that it is prop- 
 erly in the possession of the adverse party: 
 Patterson v. hinder, 14-414. 
 
 G3S. Where it is claimed that the original 
 of a written instrument is lost, such fact of 
 loss must be satisfactorily shown before a 
 copy can be introduced in evidence : Chrimes 
 V. Simpson College, 43-589. 
 
 639. The fact of an instrument being lost 
 cannot be established without evidence that 
 search has been made therefor: JSoioe Ma- 
 chine Co. V. Stiles, 53-424 ; Hansen v. Ameri- 
 can Ins. Co., 57-741. 
 
 640. Where the loss or destruction of the 
 primary evidence is not shown, and there is 
 no evidence of search being made therefor 
 in the place where it should be found, the 
 admission of secondary evidence is im- 
 proper: Hillv. Aultmann, 68-630. 
 
 641. Testimony of a party to the suit who 
 never had the custody of an instrument, 
 that he does not know where it is, is not suf- 
 ficient to authorize the admission of second- 
 ary evidence as to rts contents : Horseman v. 
 Todhunter, 13-230.' 
 
 642. Where a party is not entitled to the 
 possession or control of a written instrument, 
 it is not necessary to show that the original 
 is not in his possession or under his control 
 before introducing a copy thereof : Bixby v. 
 Carskaddon, 55-533. 
 
 643. Where a company became the suc- 
 cessor of an individual in prosecuting a par- 
 ticular business, and an order sent to the in- 
 dividual containing certain stipulations was 
 filled by the company, held, that the com- 
 pany became bound by the terms of the con- 
 tract under which the order had been made 
 to the individual, and that upon proof of such 
 facts, it appearing that the contract, if in ex- 
 istence at all, was in the possession of either 
 the individual or the company, who were joint 
 parties to the suit, and the existence of the 
 contract being denied by them in the plead- 
 ings, secondary evidence of its contents be- 
 came admissible : Cook Mfg. Co. v. Randall, 
 62-244. 
 
 644. Where it appeared that the witness 
 had made search for an instrument which he 
 
 Vol. 1—44 
 
 had supposed he had in his possession and 
 could not find it, held, that he might testify 
 as to its contents, although it appeared from 
 his evidence that it might be in existence at 
 another place where search could not be 
 made within a proper time : Steamboat Wis- 
 consin V. Young, 3 G. (ir., 268. 
 
 645. Where a witness testified that a 
 county warrant in suit had been in his pos- 
 session, that he copied it correctly into the 
 petition and that it had since been lost, and 
 that the copy in the petition was a correct 
 one, etc., TieZd, that proof of the loss of the 
 original was sufficient, and the copy was 
 properly admitted in evidence: McCormick 
 V. Grundy County, 24^382. 
 
 646. Where an agent of the party who 
 alone had held possession of the papers, 
 which had never been in the hands of the 
 party himself, testified to the loss, held, that 
 the showing was sufficient : Corbin v. Beebe, 
 36-336. 
 
 647. The statement of the maker of a note 
 which had been taken up by the giving of a 
 new note, that he had looked at home for it 
 and could not find it, held not sufficient 
 showing of loss, or search of the place where 
 it ought to be found, to warrant the intro- 
 duction of secondary evidence of the con- 
 tents : Crowe v. Qapwell, 47-426. 
 
 648. To entitle a witness to testify as to 
 the contents of letters received by him, it is 
 not sufficient for him to testify that he looked 
 for them and could not find them and thinks 
 they were destroyed, if it does not appear 
 that he has looked in the place where the let- 
 ters were likely to be found or were usually 
 kept. It is not sufficient for the witness to 
 state that he does not know where they are: 
 Howe Machine Co. v. Stiles, 53-424. 
 
 649. Whei'e the attorney of the opposite 
 party, for the purpose of inspecting a note 
 introduced in evidence, obtained possession of 
 it and then put it out of his power to return it 
 by giving it to the shei'iff to be held under exe- 
 cution, held, that proof of the note by copy 
 was authorized: Selmanv. Cobb, 4r-534. 
 
 650. Notice to produce: Secondary evi- 
 dence of a letter claimed to be in the possession 
 of the opposite party cannot be introduced 
 without notice having been served upon such 
 party to produce the original, even though 
 the loss or destruction of it is admitted by 
 
690 
 
 EVIDENCE, II, 3. 
 
 Primary and secondary ; the best. 
 
 such opposite party. Notice is necessary in 
 order to advise tlie opposite party that an 
 eilort will be made to j)rove the instrument 
 and enable him to meet the evidence with 
 respect thereto: Burlington Lumber Co. v. 
 Whitebreast Coal, etc., Co., 66-292. 
 
 651. Where, without any notice to produce 
 a paper, the paVty in whose custody it is 
 brings it into court, claiming that it is the 
 paper in question, the opposite party may 
 introduce evidence to show that a portion 
 thereof has been detached, and to prove the 
 contents of the part not produced: Bell v. 
 Chicago, B. & Q. B. Co., 64-321. 
 
 652. The failure to produce an instrument 
 upon notice has only the effect of admitting 
 secondary proof of its contents, and wUl not 
 of itself raise the presumption that such in- 
 strument contains something which would 
 defeat the rights claimed thereunder by the 
 party failing to produce it : Hunt v. Collins, 
 4-56. 
 
 653. A letter-xjress copy of a letter in pos- 
 session of a party cannot be introduced with- 
 out notice to the opposite party to produce 
 the original: Burlington Lumber Co. v. 
 Whitebreast Coal, etc., Co., 66-392; Cable v. 
 Paine, 3 McCrary, 169. 
 
 654. How contents proved: After proof 
 of the loss of a record, its contents may be 
 proven like any other document by second- 
 ary evidence, which may be a copy, if it can 
 be procured, or if not procurable, then parol 
 evidence: Higgins v. Reed, 8-398. 
 
 655. Where a record is shown to be lost, 
 its contents may be proved by any secondary 
 evidence. If the offer discloses the fact that 
 other and better evidence exists, then such 
 other and better evidence must be produced. 
 But if the existence of such other and better 
 evidence is not disclosed, the party objecting 
 to that offer must show that there is better : 
 Conger v. Converse, 9-554. 
 
 656. Where it is sought to prove the lia- 
 bility of defendant by introducing in evidence 
 a copy of a lost paper evidencing such liabil- 
 ity, it must appear that the original was gen- 
 uine : Corse v. Sanford, 14^235. 
 
 657. A copy of a copy of a written instru- 
 ment is not admissible in evidence without 
 proof that the first copy was a true one: 
 Sternburg v. Callanan, 14^351. 
 
 658. Parol evidence of a contract of af- 
 
 freightment held admissible to show that 
 defendant had been in the habit of receiv- 
 ing goods for the plaintiff and delivering 
 them in accordance with what were claimed 
 to be the tenns of the lost instrument : Beicb- 
 erbecke v. Merchants' Despatch Transporta- 
 tion Co., 39-500. 
 
 650. A judgment as to specific property is 
 not void because the property is not therein 
 described, if it refers to a petition in the case 
 where the property is described, and in case 
 of the loss of the petition it is competent to 
 prove its contents by parol : Foster v. Bow- 
 man, 55-337. ' 
 
 660. Where it is attempted to make out an 
 ante-nuptial contract by proof of the contents 
 of lost letters, it is not sufficient that wit- 
 nesses give their construction or opinion of 
 the language used, but the contents should 
 be so given that the court may be enabled to 
 judge therefrom whether there was a con- 
 tract in writing : Elwell v. Walker, 53-256. 
 
 As to the order of introduction of second- 
 ary evidence, see infra, % 1238. 
 
 661. Failure to object to the introduc- 
 tion of secondary evidence will prevent the 
 party from complaining on appeal of any 
 error in the introduction of such evidence: 
 Ham V. Wisconsin, I. & N. R. Co., 61-716; 
 Taylor v. Wendling, 66-563 ; Saunders v. Mul- 
 len, 66-728. 
 
 662. Where secondary evidence is intro- 
 duced without objection on the trial, objec- 
 tion cannot be raised for the first time by an 
 instruction that the primary evidence is nec- 
 essary to a recovery : State v. Munzemnaier, 
 24^87. 
 
 663. Where secondai-y evidence is intro- 
 duced without a proper foundation being 
 laid therefor, but without any objection on 
 that ground, it becomes in effect primary: 
 Jaffray v. Thompson, 65-333. 
 
 664. Therefore, held, that where the entry 
 in the judgment docket was introduced to 
 prove a judgment, and no objection was made 
 that the judgment itself was not introduced, 
 the evidence was sufficient: Moore v. McKin- 
 ley, 60-867. 
 
 665. Failure to object to the introduction 
 of parol evidence as to a matter which can 
 only be properly evidenced in writing does 
 not waive the necessity of written evidence. 
 So held as to the request of a creditor to the 
 
EVIDENCE, II, 4. 
 
 691 
 
 Parol, to vaiy, contradict or explain written Instruments. 
 
 principal to enforce his claim against such 
 principal, which request is by statute re- 
 quired to be written : Davis v. Payne, 45-194. 
 
 666. Error cured : Error in the admission 
 of secondary evidence without accounting 
 for the failure to introduce the primary evi- 
 dence will be cured by evidence subsequently 
 introduced that the primary evidence was 
 not in existence: Leebrioh v. Stahle, 68-515. 
 
 4. Parol evidence to vwry, conM-adiot 
 or explain written instruments. 
 
 667. Prior or contemporaneous parol 
 agreement cannot be shown : Prior or con- 
 temporaneous declarations or understandings 
 are merged in a written contract, and direct 
 and independent extrinsic evidence is not, in 
 an action at law and in the absence of fraud, 
 admissible to show an intention different 
 from that contained in the instrument itself : 
 Pilmer v. Branch of State Bank, 16-331. 
 
 668. Where a contract is reduced to writ- 
 ing, the writing speaks for itself, and, in the 
 absence of fraud or mistake, must be accepted 
 as the authoritative evidence of the con- 
 tract ; and all evidence to change or alter it 
 or in conflict with its terms is inadmissible : 
 Anderson v. Weiser, 24r-428. 
 
 669. In the absence of fraud or mistake, 
 the parties to a written contract are pre- 
 cluded from showing that the agreement 
 which it was executed to witness was differ- 
 ent in its terms from that embodied in the 
 writing: Applegate v. Burlington & S. W. 
 R. Co., 41-214. 
 
 670. It is conclusively presumed, in the 
 absence of fraud, accident or mistake, that 
 a written contract embraces all the agree- 
 ment of the parties entered into at the time, 
 and a parol contract in relation to the same 
 matter cannot be shown: Mann v. Inde- 
 pendent School Dist., 53-130. 
 
 671. Evidence of a prior contract in parol 
 cannot, in the absence of fraud, accident or 
 mistake, be introduced to vary a subsequent 
 written contract covering the subject-matter : 
 Barhydt v. Bonney, 55-717. 
 
 672. Conversations by the parties relative 
 to a trade wliich took place some days pre- 
 vious to the time of the trade, and in which 
 nothing was agreed which constituted any 
 part of the trade, should not be admitted in 
 
 evidence as bearing upon the question as 
 to what the terms of the final trade were: 
 Johnson v. Harder, 45-677. 
 
 673. Evidence of a contemporaneous con- 
 tract in parol is not admissible for the pur- 
 pose of varying or contradicting the terms 
 of a written agreement : McClelland v. James, 
 33-571; Cedar Rapids & M. R. R. Co. v. 
 Boone County, 34-45; Farmer v. Perry, 
 70 . 
 
 674. Where parties understand what is 
 embraced in a written contract, and there is 
 no stipulation omitted therefrom by mis- 
 take, or any ignorance or mistake of the law 
 whereby it fails to embody their agreement, 
 parol evidence of a contemporaneous agree- 
 ment cannot be introduced to vary its effect: 
 Taylor v. Tnilock, 55-448. 
 
 675. A written agreement of the parties is 
 conclusively presumied to be the final agree- 
 ment, and any prior parol agreement incon- 
 sistent therewith is presumed to be waived : 
 Myers v. Munson, 65-423. 
 
 676. A prior or contemporaneous agree- 
 ment in parol cannot be shown in evidence 
 when inconsistent with a written agreement, 
 unless it be pleaded as constituting fraudulent 
 representations or inducements to the con- 
 tract: Roberts v. Waters, 9-434. 
 
 677. Where a written contract is reasonably 
 clear in its provisions, a prior oral agreement 
 under which it was executed cannot be 
 proven even for the purpose of extending 
 the meaning of the written contract, es- 
 pecially where it is sought in this manner to- 
 eliminate therefrom a distinct provision con- 
 tained therein : Annis v. Annis, 61-220. 
 
 678. In an action upon a contract it is not 
 competent to change or modify it, or engraft 
 conditions upon it not expressed therein, by 
 parol evidence of declarations or agreement 
 of the parties, made before or at the time of 
 execution : Paddock v. Bartlett, 68-16. 
 
 679. Parol evidence tending to prove a 
 different contract from that which is reduced 
 to writing is not admissible, and the court, 
 instead of submitting to the jury the effect 
 of such evidence, should determine for itself 
 the interpretation of the written instrument : 
 Dalyv. W. W. Kimball Co., 67-133. 
 
 680. WhUe parol evidence naay be intro- 
 duced to show failure or Ulegality of consid- 
 eration, it is not proper by parol evidence to 
 
692 
 
 EVIDENCE, n, 4. 
 
 Parol, to vary, contradict or explain written instrameuts. 
 
 show that a bill of sale, absolute on its face, 
 is in fact entirely different, as, for instance, a 
 mere bailment of the property for a tempo- 
 rary purpose : Allen v. Bryson, 67-591. 
 
 G81. The rule that parol evidence is inad- 
 missible to contradict a written contract is 
 not applicable in a criminal prosecution for 
 selling mortgaged chattel property, without 
 the consent of the mortgagee, for the purpose 
 of excluding evidence of an oral consent to 
 such sale given before the execution of the 
 mortgage : Walker v. Camp, 69-741. 
 
 That parol evidence is admissible to show 
 fraud, accident or mistake, see infra, §§ 775- 
 788. 
 
 682. Examples: Parol evidence as to the 
 time for the execution of a deed under a con- 
 tract to convey is inadmissible when the con- 
 tract is in writing : Warren v. Crew, 33-315. 
 
 C83. The resolution of a city council ac- 
 cepting a written proposition for services to 
 be performed by contract cannot be varied by 
 parol evidence: Curtis v. Waterloo, 38-366. 
 
 684. Where it appears that there is be- 
 tween the parties a written warranty, recov- 
 ery cannot be had upon proof of a different 
 contemporaneous parol waiTanty : Shepherd 
 V. Gilroy, 46-193. 
 
 685. Where a surety became bound by a 
 written contract and also by a bond, held, that 
 he could not be permitted to show by parol 
 evidence an agreement that the liability un- 
 der the bond was to be measured by the terms 
 of the written contract: Domestic Sewing 
 Machine Co. v. Webster, 47-357. 
 
 680. Where a written instrument purports 
 to be executed by and binding upon one per- 
 son only as party of the one part, parol evi- 
 dence is not admissible to show that the agree- 
 ment was a joint one between such person and 
 another intended to be interested therein: 
 Chambers v. Brown, 69-313. 
 
 687. A contract of subscription cannot be 
 varied by parol evidence as to the under- 
 standing existing at the time of the subscrip- 
 tion: McCabev. O'Connor, 69-134. 
 
 688. Parol evidence to sho-sv intent: It is 
 not competent to vary a written contract by 
 showing that the intent of the parties was 
 different from that implied in the words used 
 therein : Walker v. Manning, 6-519. 
 
 689. Therefore, held not proper to show by 
 parol evidence that work provided for by a 
 
 contract was not to be done according to the 
 specifications of the contract but in a differ- 
 ent manner : Ibid, 
 
 690. A witness cannot give his understand- 
 ing of the legal effect of an instrument, nor 
 state how he interpreted it. The law pre- 
 sumes that it was understood according to 
 the true import of its words : Curtis v. Cass 
 County, 49-431. 
 
 691. A contract in writing, signed by a 
 party with a full knowledge of its contents, 
 cannot be defeated by him upon proof that 
 it was intended and agreed in parol between 
 the parties that such contract was executed 
 for an entirely different object from that 
 apparent upon its face, and that it was not 
 intended to evidence the obligations of the 
 parties to each other : Button v. Maines, 68- 
 650. 
 
 692. Parol evidence is admissible to vary a 
 blank indorsement by showing that it was to 
 be without recourse: Harrison v. McKim, 
 18-485. 
 
 693. Where parties have entered into a 
 written contract, but the words do not express 
 their whole contract, but are nevertheless of 
 such character that the law, by impUcation, 
 superadds something, the implication may be 
 rebutted or controlled by pai'ol evidence. But 
 where there is nothing left for imphcation, 
 and the words used are a complete expres- 
 sion of the conti-act, parol evidence is not ad- 
 missible to show that the intention of the 
 parties was different from that expressed by 
 the language used. So held with reference 
 to the assignment of a judgment : Evans v. 
 Bums, 67-179. 
 
 694. Parol conditions: Parol evidence is 
 incompetent to engraft a condition upon 
 a deed which contains no such words, there 
 being no mistake in the deed, nor any inten- 
 tion at the time of its execution that it should 
 contain any such condition, the action not 
 being one to correct the deed: Marshall 
 County High School Co. v. Iowa Evangelical 
 Synod, r 8-360. 
 
 695. Where certain representations were 
 made at the time of the signing of a sub- 
 scription in aid of a railway, such represen- 
 tations relating to the proposed construction 
 of the radway and its effect upon the ad- 
 joining land, but no conditions as to the 
 course of the railway were embodied in the. 
 
EVIDENCE, II, 4. 
 
 693 
 
 Parol, to vary, contradict or explain written in3truments. 
 
 written subscription, hdd, that parol evidence 
 was not admissible to show the representa- 
 tions thus made for the purpose of defeating 
 the subscription, it not appearing that such 
 conditions were omitted from the contract 
 by mistake : Gelpcke v. Blake, 15-387 ; Jack 
 V. Naber, 15-450. 
 
 690. Pai'ol evidence held not admissible, 
 as being without the purview of the contract 
 in writing and the contemplation of the par- 
 ties at the time, and tending to add a new 
 term or condition not intended by the parties 
 at the time the contract was made : Pierce v. 
 Walker, 23-424. 
 
 697. Whereian agreement was conditioned 
 upon the completion of a county building, 
 the court was equally divided as to whether 
 the acceptance of it, as completed, by the 
 county authorities was conclusive evidence 
 that it was completed at that time, or whether 
 it might be shown that the building had not 
 been substantially completed : Levally v. Sar- 
 mon,%' Adm'r 24^593. 
 
 698. Effect of deed or mortgage not to be 
 extended or restricted by parol: In an 
 action between the mortgagee in a chattel 
 mortgage and a stranger thereto, held not 
 competent to introduce parol evidence to vary 
 the instrument by showing that the words 
 "goods" and "stock" used therein were in- 
 tended to include fixtures: Van Evera v. 
 Davis, 51-637. 
 
 699. Parol evidence is not admissible to 
 vary a deed by showing that a reservation of 
 rent yet unaccrued had been made in a con- 
 tract of sale made previous to the execution 
 of the deed : Winn v. Murehead, 52-64. 
 
 700. It is not competent to vary a convey- 
 ance of real property by parol evidence of a 
 reservation of standing timber: Davis v. 
 Hull, 67-479. 
 
 701. While parol testimony is not admis- 
 sible as between the parties to show the reser- 
 vation of an incumbrance or interest under 
 a conveyance, yet, in favor of a third party 
 claiming the benefit of such an incumbrance 
 or interest, it is competent to show by parol 
 that the grantee had notice thereof: Wicker- 
 sham V. Orr, 9-353. 
 
 702. Where the description in a deed 
 bounded the land described on a water-course, 
 held, that as a matter of law the line of low 
 water was the true boundary, and parol evi- 
 
 dence that a prior grantor had pointed out 
 another line as the boundary was not ad- 
 missible : Murphy v. Copeland, 58-409. 
 
 703. Parol evidence is not admissible to 
 show the understanding that property in- 
 cluded in the description of the mortgage Is 
 not covered by the mortgage : Hurd v. QaU 
 laher, 14r-394. 
 
 704. The mortgage being the onl^ com- 
 petent evidence of the contract between 
 mortgagor and mortgagee as to what prop- 
 erty is covered thereby, it is not competent 
 to ask a witness whether certain property 
 was covered by the mortgage, but it would 
 bedoinpetent by pai'ol evidence to prove that 
 such property was the identical property 
 covered by the mortgage : Citizens' Bank v. 
 Rhutasel, 67-316. 
 
 705. Tarying terms of bill or note: A 
 contemporaneous verbal agreement, as to the 
 extension of time, cannot be shown to vary 
 the terms of a promissory note : Stucksleger 
 V. Smith, 27-286. 
 
 706. Parol evidence is not admissible to 
 show an agreement of the parties that a note 
 should, under certain contingencies, be valid 
 only for a portion of the amount named 
 therein : Atherton v. Dearmond, 38-853. 
 
 707. A note made payable in money to a 
 payee named cannot be vai-ied by proof of a 
 contemporaneous parol agreement that it is 
 payable to a different person and in a dif- 
 ferent way: Draper v. Bice, 56-114. 
 
 708. Parol evidence to show that a bill of 
 exchange, by its terms payable in money, 
 was intended to be paid in some other form 
 of property, cannot be admitted : Kimball v. 
 Bryan, 56-633. 
 
 709. It is competent to show by parol an 
 agreement in respect to the method of pay- 
 ment of a promissory note in terms uncon- 
 ditional : Van Vechten v. Smith, 59-173. 
 
 710. Liability of parlies: Parol evidence 
 is not admissible to show that one of the 
 signers of a note executed it as surety upon 
 condition that he was only to pay in case of 
 the insolvency of the other maker: Myers v. 
 Sunderland, 4 G. Gr., 567. 
 
 711. The admissibility of parol evidence 
 to show that one of the makers of a note is a 
 surety is within the rule that admits such 
 evidence to show that a note is void for fail- 
 ure or want of consideration, and is no in- 
 
694 
 
 EVIDENCE, II, 4. 
 
 Parol, to vary, contradict or explain written instruments. 
 
 fringement of the rule excluding parol con- 
 temporaneous evidence to contradict or vary 
 the terms of a written instrument : Port v. 
 Bobbins, 35-308. 
 
 And on this point see, further. Surety- 
 ship, I, o. 
 
 712. It is not competent by parol evidence 
 to show that no payment upon a note was to 
 be made and that it should be payable only 
 at the option of the maker, such evidence be- 
 ing inconsistent with the face of the instru- 
 ment : Works v. JSershey, 35-340. 
 
 713. It is not competent to show by parol 
 that the payee of a note received it with the 
 understanding that payment thereof was not 
 to be claimed except upon a contingency: 
 Atkinson v. Blair, 38-156. 
 
 714. Parol evidence is not admissible to 
 show that the indorsement of a promissory 
 note was made with the understanding that 
 the indorsee should not have recourse 
 thereon : Sands v. Wood, 1-363. 
 
 715. But a blank indorsement may be 
 shown to have been made without recourse : 
 narrison v. McKim, 18-485. 
 
 716. It may be shown by parol that the 
 indorser, at the time of making the indorse- 
 ment, requested the indorsee not to enforce 
 collection until the maker became insolvent : 
 Friend v. Beebe, 8 G. Gr., 379. 
 
 717. Parol evidence is not admissible to 
 show that a check was given with the under- 
 standing that the drawer should not be liable 
 thereon according to the ordinary rules of 
 commercial paper: American Emigrant Co. 
 V. Clark, 47-671. 
 
 718. Nor to show that a note executed with 
 full knowledge of its terms and of every fact 
 connected with it was intended by the par- 
 ties as a mere memorandum or receipt : Dick- 
 son V. Harris, 60-737. ' 
 
 719. Nor to show that one wliose name is 
 not attached to a written contract was, in 
 fact, a party thereto, as the principal of one 
 who signed it as a party : Davison v. Daven- 
 poHOas, etc., Co., 34-419. 
 
 720. Nor to show that a written instru- 
 ment purporting to have been executed by 
 an agent and binding only upon the principal 
 was intended to bind the agent individually : 
 Barkinsv. Edwards, 1-436. 
 
 721. It is proper, however, to show by 
 parol evidence that the instrument was 
 
 executed without authority, and is, there- 
 fore, binding individually upon the agent: 
 Ibid. 
 
 722. Where a party contracts in his own 
 name, parol evidence is not admissible to 
 show that it was understood he was acting 
 only as agent for an undisclosed principal, 
 and was not individually liable: Bryan v. 
 Brazil, 53-350. 
 
 723. Date: "While it is true that when the 
 parties to a written agreement have made the 
 date of the instrument a material part of it, 
 as when the time of performance is fixed with 
 reference to it, parol evidence is not admis- 
 sible to vary or change it, yet where a party, 
 for the purpose of correcting a supposed mis- 
 take in the date, changes it to another date 
 which is itself incorrect, that fact does not 
 preclude parol evidence as to the incorrect- 
 ness of the date substituted: Barlow v. 
 Buckingham, 68-169. 
 
 724. Nature of subject-matter: In the 
 interpretation of a contract parol testimony 
 may be resorted to in order to ascertain the 
 nature and qualities of the subject to which 
 the instrument refers : Des Moines County v. 
 Hinkley, 63-637. 
 
 725. Surrounding circumstniices: Evi- 
 dence of facts existing at the time an agree- 
 ment was made is not admissible for the 
 purpose of showing that an agreement of a 
 certain character would or would not likely 
 have been made, where the question is, what 
 agreement, express or implied, was made: 
 Nasonv. Woodward, 16-316. 
 
 726. It is always competent in considering 
 a contract to show the situation of the par- 
 ties, the subject-matter of the contract and 
 the acts of the parties under the contract, as 
 showing what the pai^ties understood to be 
 their obligations, and this is no infringement 
 of the rale that the contract cannot be ex- 
 plained or varied by parol: Thompson v. 
 Locke, 65-439. 
 
 727. The rule which inhibits the introduc- 
 tion of paiol contemporaneous evidence to 
 vary the terms of a valid written instrument 
 is directed only against the admission of any 
 other evidence of the language employed by 
 the parties than that which is furnished by 
 the writing itself. The writing may be read 
 by the Ught of surrounding circumstances in 
 order the more fully to understand the intent 
 
EVIDENCE, II, 4. 
 
 695 
 
 Parol, to vary, contradict or explain written instruments. 
 
 and meaning of the parties: Bush v. Car- 
 penter, 54-133. 
 
 728. Evidence of inducement: Parol evi- 
 dence of an agreement, serving as a consid- 
 eration or .inducement to a written contract, 
 is not objectionable as extending or varying 
 tlie written instrument: HuVbell v. Ream, 
 31-389. 
 
 729. To connect separate instruments: 
 Where two papers are executed as parts of 
 the same transaction they should be read 
 and considered together, and the fact that 
 they arg parts of the same transaction may 
 be shown by parol if it does not appear on 
 their face. When the two papers are thus 
 connected, they must, however, speak for 
 themselves, and it is not proper to go further 
 and to contravene them by parol evidence : 
 Myers v. Munson, 63-423. 
 
 730. Whether subsequent agreement is a 
 substitute lor prior: Where it appears from 
 the examination of two contracts by them- 
 selves, or in the light of the circumstances 
 under which they were concluded, that the 
 second and subsequent one was designed to 
 take the place of the first and to embody the 
 whole agreement of the parties, it is not 
 error to refuse to admit parol testimony to 
 show a contrary understanding : Mather v. 
 Butler County, 38-253. 
 
 731. A subsequent written contract with 
 reference to the same property referred to in 
 a previous oral one, but not covering entirely 
 the same ground, wUl not be held to super- 
 sede it : Kempsy v. Metcalf, 61-320. 
 
 732. Where partly in writing: A con- 
 tract may be partly reduced to writing and 
 partly exist by verbal agreement, and in 
 such case the introduction of parol evidence 
 to show the portion of the contract not re- 
 duced to writing is not a violation of the 
 rule that a written contract cannot be proved 
 by such evidence : Keen v. Beckman, 66-672. 
 
 733. Where the law does not require a 
 contract to be in writing, and a part of it is 
 reduced to writing and a part not, parol evi- 
 dence is admissible to show the portion which 
 is not reduced to writing : Pinney v. Thomp- 
 son, 3-74. 
 
 734. Where the original contract was 
 verbal and entire, and only a portion of it 
 was reduced to writing, parol evidence is 
 admissible to prove the portion not thus re- 
 
 duced to writing. Therefore, held, that parol 
 evidence was admissible to show that a writ- 
 ten lease of a sewing machine, providing for 
 periodical payments of rent, was part of a 
 transaction in which it was contemplated 
 that upon the completion of such payments 
 the property in the machine should vest in 
 the lessee: Singer Sewing Machine Co. v. 
 Holcomb, 40-33. 
 
 735. Where a written instrument is in- 
 complete and couched in terms rendering it 
 obscure and unintelligible, or where on its 
 face it docs not purport to be an entire con- 
 tract, but a mere incidental result therefrom, 
 parol evidence not varying or contradicting 
 the writing is admissible to prove so much 
 of the contract as is not fairly ascertainable 
 from the written instrument : Taylor v. OaU 
 land, 3 G. Gr., 17. 
 
 736. Where a deed is executed in pnrsu- 
 ance of a previous oral contract, it does 
 not become evidence of such contract in such 
 sense as to prevent the introduction of parol 
 evidence with reference to the terms of the 
 contract. It is to be deemed simply evidence 
 of the final consummation of some contract 
 previously made: Puttman v. Haltey, 34-435; 
 Trayer v. Reeder, 45-273. 
 
 73 7. A custom known to the party whereby 
 the meaning of certain terms used in an in- 
 strument is fixed may be shown by oral evi- 
 dence : Haddock v. Woods, 46-433. 
 
 738. Where a ticket given for grain de- 
 livered to an elevator did not show a com- 
 pleted contract upon its face, and parol 
 evidence was necessary to explain it, held, 
 that custom and extrinsic facts might be 
 proven to show whether the transaction was 
 a sale or a bailment : Irons v. Kentner, 51-88. 
 
 739. But the extent and nature of the 
 liability of the parties to a contract cannot be 
 established by parol proof of usage or custom 
 inconsistent with the language the parties 
 have employed to express their intentions: 
 Marks v. Cass County Mill, etc., Co., 43-146. 
 
 740. Where a receipt was introduced in 
 evidence to show a delivery of goods on a 
 particular day from one railway company to 
 another, held, that evidence should have been 
 admitted which was offered to show a cus- 
 tom between such companies by which 
 receipts for goods delivered from one to an- 
 other during the afternoon or evening of the 
 
696 
 
 EVIDENCE, II, 4. 
 
 Parol, to vary, contradict or explain written instruments. 
 
 day were not given until the day following : 
 Hewett V. Chicago, B. & Q. R. Co., 63-611. 
 
 741. Private rules or customs of a lessor 
 wiU not affect the lessee of mining lands un- 
 less he had knowledge thereof, and such 
 fact is a question for the jury. If there is 
 no knowledge of such custom or rules and 
 no special contract, the rights of the parties 
 would he regulated by law and the established 
 and uniform custom : Beatty v. Gregory, 17- 
 109. 
 
 742. Evidence as to consideration: Parol 
 evidence is admissible for the purpose of 
 showing want of consideration for a written 
 instrument: Swan v. Ewing, Mor., 344. 
 
 743. Or to show what the consideration 
 for a written agreement was, and that such 
 consideration has failed : Scott v. Sweet, 3 G. 
 Gr., 334. 
 
 744. Or that the consideration mentioned 
 in a deed lias not been paid, or that it is dif- 
 ferent from the atnount expressed therein : 
 Hallv. Perry, 3G. Gr., 579. 
 
 745. Pai'ol evidence is admissible, as against 
 a holder with notice, to prove that a con- 
 tract constituted the consideration for a note, 
 and that the consideration lias failed : Port v. 
 Bobbins, 85-208. 
 
 746. Where the consideration of a contract 
 is expressed in the wi'itten instrument itself 
 in unmistakable language, and parol evi- 
 dence is not necessary in order to understand 
 it, such evidence is not admissible to vary or 
 differently apply it: Courtwrightv. Striokler, 
 37-382. 
 
 747. Parol evidence is admissible to show 
 a consideration for a written contract'Other 
 than that expressed on its face : Taylor v. 
 Wightman, 51-411. 
 
 748. Parol evidence is receivable, it seems, 
 to show that the consideration of a deed is 
 other than that jecited therein, but whether 
 it is admissible to contradict a deed by show- 
 ing want of consideration, queer e: Day v. 
 Lown, 51-364. 
 
 749. While it is competent to introduce 
 parol evidence to show the real consideration 
 of a conveyance of real estate, such evidence 
 is not admissible to vary the terms of a writ- 
 ten contract to convey, ^md show that as a 
 part of the purchase price vendee agreed to 
 pay off a certain mortgage: Lewis v. Day, 
 53-575. 
 
 Further as to oral evidence to show the 
 consideration of a deed, see Conveyances, 
 §§ 108-116. 
 
 750. Si.il)sequent modifications: Parol evi- 
 dence is admissible to show that some subse- 
 quent arrangement was entered into with 
 reference to the Wme, details or performance 
 of a iH-evious written conti-act : Cox v. Car- 
 rell, 6-350. 
 
 751. In an action upon a note claimed to 
 have been altered, held, that although the 
 note was not in the form contemplated in the 
 contract in pursuance of which it was given, 
 the party might prove a parol modification of 
 such contract by which the terms of the 
 note were changed : Lister v. Clark, 48-168. 
 
 752. Parol evidence of an agreement be- 
 tween the parties to a mortgage, entered into 
 after the execution of the mortgage, by 
 which the mortgagor was authorized to sell 
 the property, held not incompetent as vary- 
 ing the written instrument: Walker v. 
 Camp, 63-627. 
 
 753. Parol evidence of a subsequent agree- 
 ment varying a written contract entered 
 into without additional consideration can- 
 not be received : Jones v. Alley, 4 G. Gr., 181. 
 
 754. Release: Parol evidence is admissi- 
 ble to show a release of a written obligation: 
 Hubbell V. Beam, 31-389. 
 
 755. Setlleiiient: A memorandum of a 
 settlement held not to be a contract but 
 merely a declaration designed as evidence of 
 what was embraced in the settlement, so that 
 parol evidence was admissible to show how it 
 was made and what consideration passed: 
 Trowbridge v. Sypher, 55-353. 
 
 756. A receipt may be explained by parol 
 evidence: Perkins v. Hodge, 38-384; Lowe v. 
 Young, 59-364. 
 
 757. Where county tax receipts were in 
 evidence, held not error to allow the county 
 treasurer to state the amount of a certain tax 
 thereby shown to be receipted for : Vaughn 
 V. Stone, 54-376. 
 
 758. Although a receipt may be varied by 
 parol, yet where it contains a provision that 
 the amount acknowledged thereby is received 
 in settlement of a specified claim, the terms 
 of settlement cannot be varied by parol evi- 
 dence : Stapleton v. King, 33-38. 
 
 759. Assignment: Parol evidence is ad- 
 missible to vary the amounts stated in an 
 
EVIDENCE, II, 4. 
 
 697 
 
 Parol, to vary, contradict or explain written instruments. 
 
 assignment to secure creditors, by showing 
 that the indebtedness was different from the 
 amount therein specified, where it appears 
 that such amounts were merely regarded as 
 approximate: Piatt v. Hedge, 8-386. 
 
 760. Parol evidence is admissible to explain 
 the pui-pose for which an assignment of ac- 
 count was made: Cousins V. Westeott, 15-253. 
 
 761. An assignment of a judgment, where 
 the words used are a complete expression of 
 the contract of the parties, cannot be shown 
 by parol to have been intended as a satisfac- 
 tion : Evans v. Burns, 67-179. 
 
 762. S-gnature: In an action against a 
 tenant for unlawfully detaining the prem- 
 ises, the fact that the lease under which he 
 is in possession was signed by him, although 
 the signature was not that of his own name, 
 may be shown by parol : Simons v. Marshall, 
 3G. Gr., 503. 
 
 763. Miscellaneous cases: The written re- 
 port of a committee appointed by a city coun- 
 cil to adjust, after conference with the cred- 
 itor, an indebtedness of the city, may be 
 varied or added to in behalf of the creditor, 
 in an action upon the debt, by parol evidence 
 as to statements made by the creditor at the 
 conference, he not having signed the report : 
 Porter v. Dubuque, 20-440. 
 
 764. Wh^e material for which a mechan- 
 ic's lien is claimed was furnished under a 
 written contract, parol evidence may be in- 
 troduced to show the purpose for which it was 
 furnished. Such evidence does not add to, 
 vary or contradict the writing: Neilson v. 
 Iowa Eastern R. Co. , 51-184. 
 
 76.J. Where, after knowledge of breach of 
 warranty in the sale of a machine, the' pur- 
 chaser gave his note for the purchase price, 
 held, that as the claim on the breach of war- 
 ranty was a separate cause of action, defend- 
 ant was not bari'ed by the giving of the note 
 from showing by parol that he did not 
 thereby waive such cause of action : Aultman 
 V. Wheeler, 49-647. 
 
 766. To vary oi- contradict a record : Parol 
 evidence is not admissible to vary the recitals 
 of a record: State v. demons, 9-.534. 
 
 767. A record cannot be overturned and- 
 rendered nugatory by extrinsic evidence. So 
 held in regard to the date of filing a motion 
 as shown by the clerk's filing mark thereon : 
 Farley v. Budd, 14-289. 
 
 768. A record imports absolute verity and 
 cannot be contradicted by parol. So held as 
 to date of approval of a stay bond : Maynes 
 V. Brochway, 55-457. 
 
 76!). Parol proof is inadmissible to vary or 
 add to the language of a decree which is 
 plain and unambiguous : Ney v. Dubuque & 
 S. C. R. Co., 30-347. 
 
 770. The party who attempts to prove a 
 record by the production of a copy thereof 
 cannot by parol evidence correct a mistake 
 in such copy : Monk v. Corbin, 5.8-503. 
 
 771. Where it appeared by the record in a 
 proceeding that a continuance was granted 
 by consent, and it became important to de- 
 termine whether such proceeding had been 
 prosecuted with diligence by the plaintiff, 
 held, that parol evidence was admissible to 
 explain the circumstances under which con- 
 sent was given: Porter v. Sigler, 1 Q. Gr., 
 261. 
 
 772. Where judgment was entered by 
 agreement, held, that parol evidence was ad- 
 missible between the parties to show that it 
 was agreed that such judgment should be a 
 first lien upon the property of one of the par- 
 ties : Perry v. Miller, 54-377, 883. 
 
 7 73. Parol evidence is admissible to show 
 that a party to the action is the same as a 
 party in a former proceeding, the record of 
 which is introduced in evidence : Carmiehad 
 V. Vandebur, 50-651. 
 
 774. Where a judgment or decree rendered 
 in another state is introduced in evidence, it 
 is competent to establish by parol that the 
 court had no jurisdiction : State v. Fleak, 54r- 
 439. 
 
 And see further, Jurisdiction, IV. 
 
 775. To showfrand, accident or mistake: 
 Parol evidence is admissible to show mistake 
 or fraud in the making of a written instru- 
 ment: Hunt V. Carr, 3 G. Gr., 581. 
 
 776. Cases of fraud or mistake are excep- 
 tions to the general rule excluding parol evi- 
 dence to vary or control a written instrument, 
 but the mistake or fraud must be made en- 
 tirely clear and established by the most satis- 
 factory proof : Ring v. Ashworth, 3-453. 
 
 777. Parol proof is admissible to sustain 
 the defense of fraud or illegality in a con- 
 tract, even though it be under seal: Stan- 
 nard v. McCarty, Mor., 124. 
 
 778. Where fraud, accident or mistake is 
 
698 
 
 EVIDENCE, II, 4. 
 
 Parol, to vary, contradict or explain written instruments. 
 
 alleged respecting a written instrument, 
 parol evidence is admissible, although it may 
 have the effect to vary or contradict the 
 terms of the instrument itself: Officer v. 
 Howe, 33-143. 
 
 779. It is competent to show by parol that 
 because of the fraud of a party to the instru- 
 ment it does not express the real agreement : 
 Hopkins V. Hawkeye Ins. Co., 57-203. 
 
 780. The fact that a contract is in writing 
 does not prevent the party proving by parol 
 evidence that it was procured by fraud: 
 Ohilds V. Dobbins, 61-109. 
 
 781. It may be shown by parol either that 
 a written contract, on account of the fraud 
 of one of the parties, fails to express the entire 
 terms of the contract, or that one party 
 through the fraud of the other was deceived 
 into making the agreement : Bohrabacher v. 
 Ware, 37-85. 
 
 782. Therefore, in an aotfon upon a writ- 
 ten contract of warranty, held, that evidence 
 was admissible to show that by false and 
 fraudulent representations in respect to the 
 article sold, the purchaser was induced to 
 enter into a written instrument of sale with- 
 out warranty, although such evidence tended 
 to prove a parol warranty : Ibid. 
 
 783. Where it was alleged that in a sale of 
 land by defendant to plaintiff, the plaintiff 
 was induced by false and fraudulent repre- 
 sentations to accept a deed which in fact 
 conveyed only a portion of the lands, held, 
 that the allegation was sufficient to admit 
 evidence as to the terms and conditions of the 
 contract and the quantity of the land sold : 
 Moore v. Brown, 49-130. 
 
 784. Fraud and undue influence in the 
 procurement of a deed may be shown by 
 parol evidence although the effect will be to 
 vary or contradict the instrument : Day v. 
 Lown, 51-364. 
 
 785. Oral evidence is always competent to 
 impeach the validity of an instrument on the 
 ground of fraudulent alteration ; and, where 
 that fact is alleged, the oral agreement in 
 pursuance of which the written instrument 
 was executed may be proven as tending to 
 show such alteration: Coitv. Churchill, 61- 
 396. 
 
 786. Parol evidence is admissible to show 
 fraud or mistake in a written instrument, 
 although the other party to the contract be 
 
 not a party to the suit: Fuller v. Lamar, 58- 
 477. 
 
 787. The rule excluding parol evidence 
 which tends to vary the terms of a written 
 instrument has no application where the 
 writing either by accident or mistake does 
 not contain the contract of the parties, and 
 accident or fraud may be set up, proved and 
 made available as a defense .without in 
 the first place having a formal reformation 
 of the instrument: Van Dusen v. Parley, 
 40-70. 
 
 788. Where parties make an agreement 
 for a conveyance and employ a scrivener to 
 draw the conveyance, and he, by mistake, 
 fails to express the contract in apt words by 
 reason of a mistake in law as to the effect of 
 the terms thus employed, equity will reform 
 the writing, making it conform to the agree- 
 ment previously entered into : Courtright v. 
 Courtright, 63-356. 
 
 And see further, as to reformation of an 
 instrument in case of accident or mistake, 
 Equity, II, a. 
 
 789. To show that an instrument abso- 
 lute in form is given only as security: In 
 an action upon a policy of insurance which 
 was to be void if the property was conveyed, 
 the defense was made that plaintiff had as- 
 signed his insurable interest during the con- 
 tinuance of the policy ; held, that parol evi- 
 dence was admissible to show that the 
 assignment, although absolute on its face, was 
 given as security: Ayres v. Home Ins, Co., 
 31-185. 
 
 790. Parol evidence is admissible in an 
 action at law as well as in equity to show 
 that .a bill of sale absolute on its face was in- 
 tended as a mortgage: McAnnuUy v. Seich, 
 59-586. 
 
 791. Thus it may be shown that, notwith- 
 standing a bill of sale absolute in form 
 from one party to another, it was agreed be- 
 tween them that they should jointly hold 
 the goods and sell them and apply the pro- 
 ceeds to the payment of a debt from the 
 grantor to the grantee: Ewaldt v. Farlow, 
 63-213. 
 
 792. Parol evidence is admissible to show 
 that an instrument of conveyance, absolute 
 in form, was in fact intended as a mortgage: 
 Roberts v. McMahan,4: Q. Gr., 84; Green v. 
 Turner, 88-112. 
 
EVIDENCE, II, 4. 
 
 699 
 
 Parol, to vary, contradict or explain written instruments. 
 
 793. And such evidence is receivable not 
 only as between the parties to the convey- 
 ance, but also when third parties are con- 
 cerned, if they have not been misled by the 
 transaction: Hall v. Savill, 3 G. Gr., 37. 
 
 794. Parol evidence is not admissible to 
 change an absolute deed to one of trust un- 
 less the party alleges and seeks to prove 
 fraud, accident or mistake: Bailiff v. Ellis, 
 2-59. 
 
 That parol evidence is admissible to show 
 that a conveyance absolute in form is a mort- 
 gage, see MoKTaAGES, II. 
 
 795. To show instrnnient of no effect: 
 The rule that parol evidence is not admissible 
 to contradict, vary or add to a written instru- 
 ment is not infringed by the admission of 
 such evidence tending to show the contract 
 to be altogether void on account of fraud, or 
 want of consideration, or that it never had 
 any legal existence or binding force : Boiu- 
 man v. Torr, 3-571 ; Williams v. Donaldson, 
 8-108; First Nat. Bank v. Hurford, 29- 
 579. 
 
 796. Therefore, held, in an action on a note 
 given for the purchase price of a machine, 
 that parol proof was admissible to show 
 a representation by the agent making, the 
 sale, and at the time of taking the note, that 
 the machine would work according to war- 
 ranty an,d that the note would not be bind- 
 ing unless it did: Williams v. Donaldson, 
 8-108. 
 
 797. To explain amblgnities: A patent 
 ambiguity can never be removed by parol 
 
 I evidence. The circumstances under which 
 I the contract was made may be developed for 
 the purpose of arriving at the intention of 
 the parties, unless such intention clearly ap- 
 pears upon the face of the instrument, but 
 the intention cannot be enforced unless 
 consistent with the language used, and 
 cannot be ascertained by bringing forward 
 proof of declarations or conversations which 
 took place at the time the instrument was 
 made, or before or after, except in case of a 
 latent ambiguity: McClelland v. James, 33- 
 571. 
 
 798. Where an ambiguity is such that a 
 perusal of the instrument shows plainly 
 that something more must be added before 
 the reader can determine what of several 
 things is meant, the rule is inflexible that 
 
 parol evidence cannot be admitted to sup- 
 ply the deficiency: Palm,er v. Albee, 50- 
 429. 
 
 799. So where defendant had subscribed 
 on a siibscription paper, " twenty acres of 
 land," held, that an action thereon could not 
 be maintained : Itnd. 
 
 800. To apply contract to subject-matter: 
 If the subject-matter, persons, etc., men- 
 tioned in the writing are indefinite, so that 
 it is not known to which the contract relates, 
 parol evidence is admissible: Finney v, 
 Thompson, 3-74. 
 
 801. Although parol evidence may be ad- 
 mitted to apply the language of the contract 
 to the specific thing or person intended, it is 
 not admissible for the purpose of varying the 
 terms if the contract : Hyler v. Wellington, 
 57-413. 
 
 802. Where, by a written contract, plaint- 
 iff was to have his choice of lands owned by 
 defendant to the amount of a certain num- 
 ber of acres, held, that parol evidence as 
 to the amount of land owned by defend- 
 ant was admissible, not as explaining the 
 written contract, but as connecting it with 
 the subject-matter: Carlyon v. Bade, 48- 
 707. 
 
 803. Parol evidence is admissible to apply 
 the description in a certificate of purchase or 
 tax deed to its subject-matter, though not 
 for the purpose of adding to or varying the 
 description therein: Judd v. Anderson, 51- 
 345. 
 
 804. Where a contract in controversy 
 specified that the party should furnish a 
 room improved and suitable for a particular 
 purpose, held, that parol evidence was not 
 receivable to show that it was understood 
 that he should furnish a particular room, 
 there being no ambiguity for the reason that 
 the contract did not purport to apply to 
 a particular thing : Thompson v. Stewart, 60- 
 323. 
 
 805. Where oral evidence introduced to 
 aid in the interpretation of a contract was 
 balanced. Mid, that the court must rely 
 wholly upon the language of the instrument: 
 Wilson Sewing Machine Co. v. Butlidge, 
 60-39. 
 
 As to parol evidence of circumstances, 
 customs, usages, etc., in the construction of 
 contracts, see Contracts, §g 403-423. 
 
TOO 
 
 EVIDENCE, II, 5. 
 
 Persons or things; photographs; experiments; examination; resemblance. 
 
 5. Persons or things as evidence; pJio- 
 tograpJis; experiments; examina- 
 tion of person; resemblance. 
 
 806. I'liotographs: The photograph of a 
 railroad wreck, testified to by a witness as 
 being correct, Ueld admissible in evidence in 
 an action against the company for injuries 
 received in such accident. As the jury 
 might be permitted to inspect the place of 
 the accident for the purpose of more readily 
 understanding and properly applying the 
 evidence, so they may examine the photo- 
 graph for the same purpose : Locke v. Sioux 
 City & P. R. Co., 46-109. 
 
 807. So where plaintiff, in an action 
 against defendant for damages for assault 
 and battery by the latter with a rawhide, in- 
 troduced a ferrotype of his back taken three 
 days after the injury, accompanied by the 
 testimony of the person taking the same 
 that it was a correct representation, held, 
 that as it would have been proper, if 
 possible, for the jury to examine the con- 
 dition of plaintiff's injuries at the time 
 the feiTotype was taken, it was properly 
 admitted in evidence: Beddin v. Gates, 52- 
 210. 
 
 808. Wherever it is important that the 
 locus in quo or any object be described 
 to the jury, it is competent to introduce a 
 photographic view: Barker v. Perry, 67- 
 146. 
 
 809. Also held that it was not improper, in 
 connection with the photograph, to supply 
 the jury with a magnifying glass for its ex- 
 amination: Ibid. 
 
 810. Examination of the person: In an 
 action for personal injuries wherein it was 
 claimed that plaintiff had sustained perma- 
 nent injuries, held, that it was improper to 
 refuse an application by defendant to have 
 plaintiff subjected to a personal examina- 
 tion by physicians as to the extent of his in- 
 juries : Schroeder v. Chicago, B. I. & P. B. 
 Co., 47-375. 
 
 811. In actions for personal injuries, in- 
 juries upon the person may be shown to the 
 jury and inspected by them. The same is 
 true in the trial of criminal assaults. Such 
 practice has been too long sanctioned to be 
 now called in question : Barker v. Perry, 67- 
 146. 
 
 812. Experiments: Where the question 
 in issue was whether a railroad engine at- 
 tached to a train could pass over a certain 
 portion of the ti-ack with steam shut off, 
 held, that an experiment by running an en- 
 gine connected with cars in that manner over 
 such portion of the track in the presence of 
 the jury on board of the cais was not neces- 
 sarily improper: Stockwell v. Chicago; C. & 
 D. B. Co., 43-470. 
 
 813. Resemblance of child to putative 
 father: In a bastardy- proceeding, held not 
 eiTor to exhibit to the jury a child over two 
 years of age whose paternity was in question, 
 for the purpose of showing a resemblance 
 between the child and defendant. Also held 
 that it was not error to allow counsel for 
 prosecutibn to call attention to alleged re- 
 semblances, the jury being instructed to the 
 effect that if they did not clearly see the re- 
 semblance referred to, they should disregard 
 all claims based therepn : State v. Smith, 54- 
 104. 
 
 814. And in an action for criminal con- 
 versation, held, that an instruction to the 
 jury that if they believed the child of plaint- 
 iff's wife shown to them during the ti-iul re- 
 sembled defendant, and their judgment and 
 experience taught them that there was any- 
 thing reliable in this appearance that would 
 be sufficient to form an opinion on, they 
 might consider it in corroborating the evi- 
 dence of plaintiff's wife as to the paternity 
 of the child, sufficiently limited the jury 
 to the consideration of family resemblance 
 and the likeness ordinaiily seen between 
 child and father: Stumm v. Hummel, 89- 
 478. 
 
 815. But in a criminal prosecution for se- 
 duction, held error to exhibit to the jury an 
 infant three months of age, claimed to be the 
 result of the criminal connection, and to in- 
 struct the jury that if they found the child 
 resembled the defendant as children resemble 
 their fathers, 'and their judgment and ex- 
 perience should teach them that there was 
 anything reliable in this appearance that it 
 would be safe to form an opinion on, then 
 they might consider such resemblance in 
 corroboration of the prosecutrix and as testi- 
 mony to connect defendrnt with the commis- 
 sion of the crime charged : State v. Danforth, 
 48-43. 
 
EVIDENCE, ni, I. 
 
 YOl 
 
 Production and effect. — Burden of proof. 
 
 III. Peoduction and effect of evi- 
 dence. 
 
 1. Burden of proof ; amount and fre- 
 ponderance of evidence. 
 
 As to burden of proof and amount of evi- 
 dence in criminal cases, see Ceiminal Law, 
 m, 13, h. 
 
 816. Who has Ihe burden of proof: The 
 
 true test to determine upon whom, is the 
 burden of proof is to consider which party 
 would have the verdict if no evidence is 
 offered on either side. The burden of proof 
 lies on the party to whom in such case the 
 verdict ought to be given : Veiths v. Sagge, 
 8-163, 193; Viele v. Germania Ins. Co., 26-9. 
 
 817. While it is true as a general proposi- 
 tion that the party having the affirmative of 
 the issue has also the burden of proof, yet 
 this is not always so, as, for instance, where 
 in an action by the indorsee of a promissory 
 note the defense of fraud in its inception is 
 interposed, the burden of proof is upon plaint- 
 iff to show that he is a bona fide holder for 
 value. So also where the grantee of one who 
 has purchased in fraud of the rights of a 
 prior purchaser, claims to have paid the con- 
 sideration without notice of such fraud, the 
 burden of proof is upon him, although the 
 other party has alleged that such grantee is 
 not a bona fide purchaser for value without 
 notice : Sillyman v. King, 36-207. 
 
 See further as to the burden of proof in 
 such cases, Bills and Notes, gg 367-376; 
 NoTicas, III, b. 
 
 818. The question as to who has the bur- 
 den of proof is properly a matter of practice, 
 and the ruling of the court thereon will not 
 be reviewed unless there is evidence of an 
 abuse of discretion : Viele v. Germania Ins. 
 Co., 26-9. 
 
 819. As to allegations in answer: It is 
 error to instruct the jury that as to affirma- 
 tive defenses set up in the answer, the burden 
 of proof is upon the defendant, where defend- 
 ant has unnecessarily pleaded a matter, such 
 as plaintiff's contributory negligence, as to 
 which the plaintiff has the burden of proof : 
 Hawes v. Burlington, C. R. & N. R. Co., 64- 
 315. 
 
 820. Allegations in reply: Such an in- 
 struction is also erroneous where there is an 
 
 afltemative defense set up in the answer, and 
 confessed and avoided in the reply : Ibid. 
 
 821. Where defendant set up in his answer 
 an allegation of former adjudication, and 
 plaintiff in reply set up certain matter in con- 
 fession and avoidance, held, that the burden 
 of proof was on plaintiff to establish the al- 
 legation of his reply and not upon defendant 
 to negative such allegation: Clappv. Cun- 
 ningham, 50-307. 
 
 822. Fact within party's knowledge: It 
 is a well settled rule of evidence that the 
 party who alleges shall prove the affirma- 
 tive of any proposition. The burden of proof 
 lies upon the party who seeks to support his 
 action or defense by a particular fact of 
 which he is supposed to be cognizant : Swaf- 
 ford V. Whipple, 3 G. Gr., 261. 
 
 82.3. In equity: Where the allegations of 
 a bill in equity are denied generally and 
 specifically, the burden of proof is upon 
 plaintiff, and unless the testimony overcomes 
 the denials, the bill should be dismissed: 
 Mitchell V. Sawyer, 21-582. 
 
 824. Negligence: To entitle plaintiff to 
 recover in an action for personal injuries, it 
 must be proved that the injuries were caused 
 by the negligence of defendant, and that the 
 person injured was not guilty of negligence 
 contributing to the injury, and in both re- 
 spects the burden is upon plaintiff; Muldow- 
 ney v. Illinois Cent. B. Co. , 32-176 ; Hawes 
 V. Burlington, C. R. & N. R. Co., 64-315. 
 
 And further, see Negligence. 
 
 825. Payment: Where a party pleads pay- 
 ment as establishing a right, the burden of 
 proving such fact is upon him: Osgood v. 
 Bringolf, S2-2f^~>. 
 
 826. Proof as to performance of condi- 
 tion : Where shares of stock were delivered 
 to a creditor upon condition that they should 
 be accepted as payment, unless returned by 
 a certain time, held, tliat the burden of proof 
 was upon the creditor to show redelivery, 
 and where it appeared that he had delivered 
 the shares to a third person for the debtor, 
 he must show that such third person had au- 
 thority to receive them, or that he actually 
 delivered them to the debtor: Woodruff v. 
 Thurlby, 39-344. 
 
 827. Transmission of telegram : Where a 
 telegram is incoiTectly transmitted, the bur- 
 den is upon the telegraph company to show 
 
T02 
 
 EVIDENCE, m, 1. 
 
 Burden of proof; amount and preponderance. 
 
 that the error was caused by conditions that 
 relieve it of responsibility : Turner v. Hawk- 
 eye Tel. Co., 41-458. 
 
 828. If the message is sent under a stipu- 
 lation that the company wiU not be liable for 
 mistakes unless the message is repeated, the 
 plaintiff, to recover, must show not only the 
 mistake, but some fault or negligence on the 
 part of the company to render it liable : Sweat- 
 land V. Illinois & Miss. Tel. Co., 37-433. 
 
 Further, see Telegraphs. 
 
 829. Opening: and closing': Where a party 
 has insisted on the right to open and close, 
 against the objection of the other pai-ty, and 
 has been allowed by the court to do so, he 
 cannot complain of an instruction that the 
 burden of proof is upon him : Lister v. Clark, 
 48-168. 
 
 830. Evidence in equilibrium: Where 
 the evidence is in equipoise, the party having 
 the burden of proof must fail: Hanson v. 
 Stephenson, 32-129; Wadsworth v. Nevin, 
 64-64. 
 
 831. Weiglit of evidence: Where the evi- 
 dence is in conflict, the reasonableness of the 
 respective conflicting statements should be 
 taken into account, and it is error to instruct 
 the jury that if the witnesses are equal in 
 credibility and have equal means of knowl- 
 edge, then the preponderance of testimony 
 will be determined by the greater number : 
 Whitdker v. Parker, 42-585. 
 
 832. The weight of testimony is not nec- 
 essarily with the. greater number of wit- 
 nesses: Crowley v. Burlington, C. B. & N. 
 B. Co., 65-658. 
 
 833. Where a person claiming not to have 
 heard a sound seeks to escape liability for 
 negligence in not having heard it, evidence 
 of other persons having equal opportunity 
 to hear, that they did hear it, may be suffi- 
 cient to overcome the direct testimony of 
 the party: Ford v. Central Iowa B. Co., 69- 
 627. 
 
 834. Where the jury are directed that 
 their verdict should be in accordance with 
 the preponderance of evidence, they, are 
 simply directed that they should find for the 
 party, upon any issue in the case, who ad- 
 duces the greatest quantity of credible evi- 
 dence as weighed in their own minds. When 
 evidence is weighed according to the rules of 
 law, the preponderance is with that side in 
 
 whose favor the scales of reason turn : Bryan 
 V. Chicago, B. I. & P. B. Co., 63-464. 
 
 835. It is not error to instruct the jury 
 that they have a right to say whose testi- 
 mony they will receive and whose they will 
 disregard, in connection with the dii-eotion 
 that they should not disregard any evidence 
 without good cause for so doing: Lanning v. 
 Chicago, B. & Q. B. Co., 68-502. 
 
 836. An instruction to the jury, that if 
 they cannot harmonize evidence they are at 
 liberty to say whom they regard as truthful 
 and honest, is not proper. The jury should 
 not reject the evidence of any witness simply 
 because it is in conflict with the evidence of 
 other witnesses, but they should determine 
 in the light of the story told, and all the cir- 
 cumstances, the very truth of the disputed 
 proposition : Drake v. Chicago, B. I. & P. 
 B. Co., 70 . 
 
 837. "Written and oral evidence: Where 
 a witness testified from memory, six years 
 after transactions referred to were said to 
 have occurred, and there was a conflict be- 
 tween his evidence and certain books of 
 original entry kept by the opposite party, 
 held, that the written 'evidence was properly 
 allowed to prevail : Mattox v. Patterson, 60- 
 434. 
 
 838. Disagreement of witnesses in minor 
 points in their recollection and recital of 
 transactions does not necessarily militate 
 against the candor of any of them. And 
 unless there appears something which in- 
 dicates a lack of candor, or untruthfulness 
 on the part of the witness, the testimony of 
 all the witnesses should receive proper and 
 candid consideration by the jury : State v. 
 McDevitt, 69-549. 
 
 839. The relative credibility of the respect- 
 ive parties in a prosecution for bigamy, in 
 view of the character of each as shown by the 
 evidence, considered : State v. Nadal, 69-478. 
 
 840. Preponderance: It is not necessary, 
 in order to constitute a preponderance of evi- 
 dence, that the mind be fully convinced of 
 the truth of the testimony which controls the 
 decision. In civil cases a fact may be found 
 iu accordance with a preponderance of the 
 evidence, although the mind may be left in 
 doubt as to the very truth : Bryan v. Chicago, 
 B. I. &P.B. Co., 63-464. 
 
 841. The espression " a fair preponderance 
 
EVIDENCE, III, 1. 
 
 703 
 
 Burden of proof ; amount and preponderance. 
 
 of evidence " is not objectionable as meaning 
 more than a mere preponderance : Ibid. 
 
 843. The party having tlie burden of proof 
 in a civil case ia not required to prove con- 
 clusively the truth of his allegations : Mid- 
 dleton V. Middleton, 31-151. 
 
 813. That evidence is sufScient and satis- 
 factory which ordinarily satisfies an unpreju- 
 diced mind : Gandy v. Chicago & N. W. R. 
 Co., 30-420; Babcock v. Chicago cfc N. W. B. 
 Co., 62-593. 
 
 844. The law recognizes no such rule as 
 that, in order to establish a conclusion by 
 circumstantial evidence, the circumstances 
 must have the force and effect, and produce 
 the conviction in the minds of the jurors, of 
 at least one credible witness, testifying 
 positivelj' to such facts. The preponder- 
 ance of evidence may be determined by less 
 testimony than what is equal in force and 
 effect to the testimony of one witness : Bixby 
 V. Carskaddon, 55-533. 
 
 845. Clear aud satisfactory evidence: It 
 is the established law of this state that ques- 
 tions of fact submitted to the jury in civil 
 cases are to be determined by the preponder- 
 ance of evidence, even though the question 
 in issue is one which in equity requires clear, 
 satisfactory and conclusive proof, as, for in- 
 stance, when it is sought by parol to show 
 that a deed absolute in terms is in fact a 
 mortgage : McAnnulty v. Seick, 59-586. 
 
 816. In a civil action preponderance of 
 evidence is all that is required to establish a 
 fact in issue, and whatever amounts to a 
 preponderance of evidence as to such fact 
 may be regarded as clear and satisfactory 
 proof thereof. Therefore, held, that pre- 
 ponderance of evidence was sufficient to 
 establish a fraudulent alteration of a written 
 instrument: Coit v. Churchill, 61-296. 
 
 847. The mind may be satisfied of the ex- 
 istence of any fact by less than what may be 
 called clear proof. Therefore, held, that it 
 was error in an action for seduction to charge 
 the jury that the presumption in favor of the 
 chastity of plaintiff could only be overcome 
 by clear and satisfactory evidence : West v. 
 Druff, 55-335. 
 
 848. It is error in a civil case to instruct 
 the jury that a particular fact, as, for in- 
 stance, that of forgery, must be " clearly and 
 faii-ly proven,'' as such instruction requires 
 
 more than a mere preponderance of evidence i 
 Hall V. Wolff, 61-559. 
 
 849. In an action to set aside a convey- 
 ance for fraud it is only necessary to estab- 
 lish the fraud by preponderance of testimony. 
 Legal fraud may be made out without es- 
 tablishing fraudulent intent sufficient to 
 render defendant guilty of a crime : Lillie v. 
 McMillan, 52-463. 
 
 As to evidence of fraud, see further, 
 Feaud, §§ 24-35. 
 
 850. To overcome presumption: An in- 
 struction to the effect that the presumption 
 that services were rendered for compensation 
 and not gratuitously could be overcome by 
 a preponderance of evidence, held not erro- 
 neous : Rogers v. Millard, 44-466. 
 
 851. Eyidence of commission of crime: 
 The rule of criminal law that a defendant 
 can only be convicted upon proof of the crime 
 charged beyond a reasonable doubt is not ap- 
 plicable in a civU action to recover dam- 
 ages for a criminal act, and in such case 
 the plaintiff should be allowed to recover 
 where the criminal act is established by pre- 
 ponderance of evidence. (Overruling Barton 
 V. Thompson, 46-30) : Welch v. Jugenheimer, 
 56-11; Wood v. Porter, 56-161; Lewis v. 
 Oarretson, 56-278 ; Barton v. Thompson, 56- 
 571 ; Kendig v. Overhulser, 58-195. 
 
 852. So held in an action on an insurance 
 policy, where it was alleged as a defense that 
 plaintiff himself caused the fii'e in order to 
 get the insurance : Behrens v. Germania Ins. 
 Co., 58-26. 
 
 853. In an action for false and fraudulent 
 representations it is not necessary to prove 
 the fact of fraud beyond a reasonable doubt, 
 although intentional fraud might constitute a 
 crime under the statute : Faville v. Shehan, 
 68-241. 
 
 854. In bastardy proceedings: The rule 
 of criminal law requiring proof beyond a 
 reasonable doubt is not applicable in favor of 
 defendant in a bastardy proceeding : State v. 
 McGlothlen, 56-544. 
 
 855. In civil actions for slander or libel 
 in charging plaintiff with the commission of 
 a crime, if defendant seeks to justify by 
 pleading the truth of the charge, a prepon- 
 derance of evidence of the commission of the 
 crime is sufficient to support his defense. 
 The criminal act need not be proven, as ia 
 
704 
 
 EVIDENCE, III, 3. 
 
 Presumptions ; prima facie proof. 
 
 criminal cases, beyond a reasonable doubt, 
 (Overruling Bradley v. Kennedy, 3 G. Gr. , 331 ; 
 Forshee v. Abrams, 3-571 ; Fountain v. West, 
 23-9; Ellis V. Lindley, 38-461; Mott v. Daw- 
 son, 46-533): Riley v. Norton, 65-306. 
 
 Weiglit of evidence is for jury: See In- 
 structions, III, b. 
 
 856. Number of witnesses: The trial court 
 has the power, in the exercise of a legal dis- 
 cretion, to control the number of witnesses 
 that shall be examined to establish any fact : 
 Bays V. Herring, 51-286. 
 
 And see, as to number of witnesses, infra, 
 §§ 1266-1368. 
 
 2. Presumptions; prima facie proof . 
 
 As to presumption of intent in criminal 
 cases, see Criminal Law, gg 30-33. 
 
 857. Law and fact: Where the law holds 
 that a certain presumption, unless overcome, 
 will authorize conviction, jt is a presumption 
 recognized by the law and may therefore be 
 termed a presumption of law. The term 
 presumption of fact implies that from cer- 
 tain facts the law raises a presumption. 
 Presumption of law or of fact may be used 
 to express the same thought : State v. Kelly, 
 57 644. 
 
 858. Continuance of condition: Where a 
 condition is shown to exist, it will be pre- 
 sumed until the contrary is shown by evi- 
 dence or presumptions arising on the facts in 
 the case : State v. Jones, 64-349. 
 
 859. Insanity: So TieM in regard to insan- 
 ity: Ibid. 
 
 860. The fact that a person has been an 
 inmate of an insane asylum and has been 
 discharged in an improved condition, though 
 not well, will not be sufficient to show exist- 
 ing insanity four years after such discharge, 
 in the 3,bsence of other evidence thereof: 
 Ellis V. White, 61-644. 
 
 861. Intoxication: Evidence of a condi- 
 tion of intoxication existing at 4 o'clock in 
 the afternoon is not admissible to show the 
 person's condition at 9 o'clock in the forenoon 
 preceding : State v. Hubbard, 60-466. 
 
 862. Paleriiity: The presumption being in 
 favor of the legitimacy of all children born 
 during wedlock, held, in an action for seduc- 
 tion in which the paternity of a child born 
 after the marriage of plaintiff was sought to 
 
 be fixed upon a person other than her hus- 
 band, and the defendant sought to fix the 
 paternity on the husband, that the burden of 
 proof was upon the plaintiff: Hopkins v. 
 Mathias, 66-333. 
 
 863. A child born in wedlock, whether be- 
 gotten before or after marriage, is presumed 
 to be the child of the husband, but such pre- 
 sumption may be rebutted by strong, satis- 
 factory and conclusive evidence that the 
 husband did not have access to the mother 
 of the child when it was begotten. If a 
 woman be pregnant at the time of marriage 
 and the pregnancy be known to the husband, 
 he will be conclusively presumed to be the 
 father : State v. Romaine, 58-46. 
 
 864. Divorce: Where parties, who have 
 been husband and wife, separate and the 
 former lives with a woman claiming to be, 
 and held out by him to be, and reputed to be, 
 his wife, the presumption will be entertained 
 that such cohabitation is legal, and that he 
 has been divorced from his foi'mer wife, and 
 this presumption will be entertained when 
 the legality of a subsequent marriage by 
 such former wife is called in question: 
 Blanchard v. Lambert, 43-328. 
 
 865. Where acts are shown which would 
 am ount to a crime if a divorce from a previous 
 marriage had not been obtained, such proof 
 will be admissible to support an allegation 
 of divorce, where by reason of destruction of 
 records the record itself cannot be produced : 
 Jji re Estate of Edwards, 58-431. 
 
 866. The presumption of divorce, in the ab- 
 sence of any record evidence thereof, can 
 only be invoked in aid of innocence and the 
 legitimacy of offspring, nor does it always ob- 
 tain even in such cases ; but such nile is not 
 applicable in any case where neither party 
 has been married again or has lived in co- 
 habitation with another persod as husband 
 or wife. Therefore, Md, that the mere fact 
 of long separation would not defeat the 
 wife's dower right : Cruize v. Billmire, 69-397. 
 
 And see Estates of Decedents, §§ 326-338. 
 
 867. Death: The presumption of the death 
 of a party does not arise until he has been 
 absent without intelligence concerning him 
 for the period of seven years : State v. Henlee, 
 58-457. 
 
 868. The provisions of the statute (Code, 
 § 4010) that a party whose husband or wife 
 
EViriENCE, III, 2. 
 
 705 
 
 Presumptions ; prima facie proof. 
 
 has been absent for three years without such 
 party knowing that such husband or wife are 
 living shall not be deemed guilty of bigamy 
 in remarrying, do not constitute a rule of 
 evidence by which such subsequent marriage 
 can be considered valid when sought to be 
 established for the purpose of proving adul- 
 tery on the part of the party to such second 
 marriage: Ibid. 
 
 869. Letters of administration am pre- 
 sumptive evidence of all that they purport to 
 show : Milligan v. Bowman, 46-55. 
 
 870. The granting of letters of administra- 
 tion cannot be considered a conclusive adju- 
 dication upon the fact of death. The issuance 
 of the letters is prima facie evidence of the 
 death of the party upon whose estate they 
 ai'e issued, but such presumption may be 
 rebutted by slight evidence : Tisdale v. Con- 
 necticut Mut. L. Ins. Co., 26-170. 
 
 871. The bare fact that a man was last 
 seen alive at any time, however recent, prior 
 to the granting of letters of administration 
 upon his estate, will not, in an independent 
 action in whiph the question is again raised, 
 overcome the presumption of his death aris- 
 ing from the issuance of such letters : Tisdale 
 V. Connecticut Mut. L. Ins. Co., 28-12. 
 
 As to evidence of death, see supra, §§ 84-87. 
 
 872. Delivery of deed: In the absence of 
 other proof it will be presumed that a deed 
 was delivered at the date of its acknowledg- 
 ment and execution : Henry County v. Brad- 
 shaw, 20-355. 
 
 873. Payment: While mere delivery of 
 money by one to another may be presump- 
 tive evidence of the payment of an anteced- 
 ent debt and not of a loan, explanatory cir- 
 cumstances may qualify the act and remove 
 such presumption : Dougherty v. Deeney, 45- 
 443. And see Payment and Discharge, § 1 . 
 
 874. Negligence: In an action to recover 
 damages for death caused by defendant's neg- 
 ligence, the jury, in determining whether de- 
 ceased was engaged in doing anything which 
 would constitute contributory negligence, 
 may give due weight to the instincts which 
 naturally lead men to avoid danger and pre- 
 serve life: Way V, Illinois Cent. R. Co.,40- 
 341; Burns v. Chicago, M. <* St. P. R. Co., 
 69-450. As to presumption of negligence from 
 accident, see Caeeiees, §§ 153, 154; Rail- 
 roads, §§ 487, 488, 671. 
 
 Vol. I— 45 
 
 875. But when the facts of the transaction 
 are proven by direct testimony, the question 
 whether the party acted negligently or with 
 care is to be determined from those facts: 
 Whitsett V. Chicago, R. I. & P. R. Co., 67- 
 150. 
 
 876. The instinct of self-preservation may 
 be allowed some weight in some cases as 
 raising an inference of care, but where there 
 is direct evidence of care, or the want of it, 
 there is no room for mere inference : Dunlavy 
 V. Chicago, R. I. & P. R. Co., 66-435. 
 
 877. In the absence of proof to the con- 
 trary, the presumption is that men ordinarily 
 in the course of business act correctly and 
 with pi-oper care: Turner v. Hawkeye Tel. 
 Co., 41-458. 
 
 878. Telegraph message: Thus, where a 
 message is received by a telegraph company 
 for transmission and is incorrectly transmit- 
 ted, it will be presumed that by the exercise 
 of proper care it would have been correctly 
 transmitted, and the burden is upon the com- 
 pany to show facts relieving it from respon- 
 sibility: Ibid. 
 
 879. Where a telegraph company entered 
 into a contract to furnish market reports to 
 a grain dealer, which reports it was under- 
 stood were to be procured froni another line, 
 and the reports, as delivered, were erroneous, 
 hsld, that the presumption would be that 
 the error occurred on the part of the last 
 company: Ibid. 
 
 880. Facts within party's own knowl- 
 edge: Where a party relies upon a fact, the 
 evidence of which is exclusively within his 
 own knowledge and control, the presumption 
 is against him until such evidence is pro- 
 duced: Ibid. 
 
 881. Failure to produce a written insti-u- 
 ment, after notice by the opposite party to 
 do so, does not raise the presumption that it 
 contains something which would defeat the 
 rights claimed under it by the party failing 
 to produce it : Hunt v. Collins, 4r-56. 
 
 882. Possession of property ie prima faci^ 
 evidence of title and casts upon the person 
 claiming title adverse to such possession the 
 burden of showing it: Wallace v. Wallace, 
 62-651. 
 
 883. Fraud: Evidence of fraud in a par- 
 ticular case held not suflScient to overcome 
 the presumption existing in favor of as 
 
706 
 
 E^'^IDENCE, in, 3. 
 
 Presumptions ; xirima facie proof. 
 
 solemn an instrument as a deed executed and 
 > acknowledged in due form, and the presump- 
 tion is against fraud : Palmer v. Palmer, 62- 
 304. 
 
 884. Presumption as to regularity of offi- 
 cial acts: Every legal presumption should be 
 entertained that an officer has done his duty : 
 Cole V. Porter, 4 G. Gr., 510; Ooodrich v. 
 Beaman, 37-563, 
 
 885. Such presumption will be entertained 
 in the absence of any showing to the con- 
 trary: Budd V. Durall, 36-315; Spitler v. 
 Schoneld, 48-571. 
 
 886. Where it is the duty of an officer to 
 do an act, it must be presumed that such 
 duty has been performed : In re Estate of 
 Edwards, 58-431. 
 
 887. There is a presumption that those 
 charged with public trasts act honestly and 
 in good faith : Sioux City & St. P. R, Co. v. 
 Osceola County, 45-168. 
 
 888. An act of an officer which may hare 
 been within his official powers will be pre- 
 sumed to have been within such powers in 
 the absence of all evidence to the contrary : 
 Winneshiek County v. Maynard, 44-15 ; Bdb- 
 eock V. Wolfe, 70 . 
 
 889. Official acts, even though ministerial 
 in their nature, must be regarded as prima 
 facie correct : Smith v. District Tp, 42-532. 
 
 890. There is a legal presumption in favor 
 of the due execution of papers emanating 
 from a public office : French v. Heel, 61-143. 
 
 891. Where the return of an officer on a 
 writ of attachment showed a levy upon pi-op- 
 erty, but did not state that the property was 
 that of defendant, held, that the presumption 
 of regularity would obtain in favor of such 
 return: Rowan v. Lamb, 4 G. Gr., 468. 
 
 892. A court will not presume that an offi- 
 cer in the service of process failed to dis- 
 charge a plain duty imposed upon him by 
 law, nor infer facts inconsistent with the re- 
 turn of the writ, in order to divest rights 
 acquired under it, or defeat the judgment of 
 a court of competent jurisdiction : Pursley v. 
 Hays, 23-310. 
 
 893. Where a person in authority is re- 
 quired to do a certain act which could not be 
 omitted without a neglect of duty, the per- 
 formance of it will be presumed unless the 
 contrary is proved: Dollarhide v. Board of 
 Commissioners, 1 G. Gr., 158, 
 
 894. Therefore, where it was required by 
 statute that commissioned for a particular 
 puipose should be sworn, held, that although 
 in this respect compliance with the statute 
 did not appear in the report of such commis- 
 sioners, it would be presumed that the lav- 
 was complied with : Ibid. 
 
 895. It must be presumed that the officers 
 of the court in any particular matter per- 
 formed their duty unless the contrary ap- 
 pears. Therefore, held, that where the trial 
 of a criminal case was had at a special term 
 of the court, it would be presumed that notice 
 of the holding of such term, as required by 
 law, had been given: Harriman v. State, 2 
 G. Gr., 270. 
 
 896. Where the venue of an affidavit does 
 not appear, it will be presumed that the 
 justice of the peace signing it administered 
 the oath in the county in which he was au- 
 thorized to act : Snell v. Echerson, 8-284. 
 
 897. Innocence: The presumption of in- 
 nocence rather than guilt should be indulged : 
 and where it was sought to estabUsh a di- 
 vorce, the record of which was claimed to 
 have been destroyed, held, that proof of acts ^ 
 by the other party which would be criminal in 
 the absence of such divorce, was competent 
 to raise the presumption that the divorce had 
 been obtained : In re Estate of Edwards, 58- 
 431. 
 
 In criminal cases the presumption of in- 
 nocence is entertained and defendant must 
 be proven guilty beyond a reasonable doubt : 
 See Criminal Law, III, 13, h. 
 
 898. Jurisdiction: Where it appears that 
 a justice of the peace has rendered a judg- 
 ment for more than $100, as he may do by 
 consent of the parties, it not being required 
 that such consent shall appear of record, it 
 will be presumed in favor of the judgment 
 that there was such consent: Sdhlisman v, 
 Webber, 65-114. 
 
 899. The proceedings of a board of super- 
 visors in establishing a highway will be 
 presumed regular, and if that tribunal de- 
 termines that the essential steps to give it 
 jurisdiction have been taken and makes such 
 determination a matter of record, the pre- 
 sumption arises in favor of the correctness 
 of the determination. But such presump- 
 tion does not arise in favor of the jurisdiction 
 of the tribunal in the absence of any deter- 
 
EVIDENCE, lU, 3, 4. 
 
 707 
 
 Attendance of witnesses. — Rule for production of books and papers. 
 
 mination that it had jurisdiction : MoBurney 
 V. Graves, 66-314. 
 
 900. Where it was provided by statute 
 that oei'tain proceedings might be had before 
 the prosecuting attorney in case of the ab- 
 sence of the county judge or his inability to 
 act, held, that a record showing such pro- 
 ceedings to have been had before the prose- 
 cuting attorney, but not showing the fact or 
 cause of the inability of the county judge, 
 was not properly admitted in evidence: State 
 V. Chicago, B. I. & P. R. Co., 50-692. 
 
 Further, see Jueisdiction, IV. 
 
 Judgments: As to the presumptions in 
 favor of judgments, see Jurisdiction, IV, a. 
 
 Statutes of another state: As to the pre- 
 sumption that the laws of another state are 
 the same as our own, see supra, §§ 563-566. 
 
 Alteration of instruments, when pre- 
 sumed from different ink, handwriting, etc. , 
 see Alteration op Instruments, III. 
 
 Possession of bill or note, presumption 
 arising from, see Bills and Notes, g§ 149- 
 159. 
 
 3. Atteiidance of viitnesses. 
 
 901. Subpoena; garnishee: The statutory 
 limitation as to the distance beyond which 
 witnesses cannot be required to attend upon 
 subpoena in a civil case does not apply to 
 garnishees, who may be compelled to attend 
 from any distance within the state: West- 
 phal V. Clark, 48-371. 
 
 902. Attendance of prisoner as witness: 
 Defendant in a criminal action has no abso- 
 lute right to demand the personal attendance 
 of a convict in the penitentiary or county 
 prison, under an order of court, but the ex- 
 ercise of the power of the court to require the 
 production of such prisoner as provided by 
 statute (Code, § 3678; is discretionai-y : State 
 V. Kennedy, 20-372. 
 
 903. Mileage: By appearing, a witness 
 waives the right to demand mileage before 
 testifying: Stockberger v, Lindsey, 65-471. 
 
 904. A witness subpoenaed from without 
 the state oannol have mileage for travel out- 
 side the state taxed as costs, but it seems 
 that he might recover from the party caus- 
 ing him to be subpoenaed, a reasonable com- 
 pensation for his time and expenses. The 
 service of the subpoena outside the state 
 might be regarded as a request giving rise to 
 
 an implied agreement for compensation: 
 Westfall V. Madison County, 62-427. 
 
 905. Fees for attendance: A rule of court 
 providing that witnesses subpoenaed in cases 
 between different pai'ties should draw but one 
 per diem was upheld in a particular case: 
 .Vefferf v. Dubuque, B. & M. R. Co., 34-430. 
 
 906. Fees of experts: Underthe statutory 
 provision (Code, § 3814) for additional com- 
 pensation to expert witnesses, to be allowed 
 by the court, in order that a party may be en- 
 titled to such fees it must be shown that he 
 was called as an expert, and to testify to an 
 opinion founded on his special study and ex- 
 perience : Snyder v. Iowa City, 40-646. 
 
 As to witness fees in criminal cases, see 
 Criminal Law, g§ 1735-1744. 
 
 907. Subpccna: A party to theactionwho 
 is present in court cannot object to being 
 called as a witness on the ground that he has 
 not been subpoenaed : Goodpaster v. Voris, 8- 
 334. 
 
 908. Service of subpcBna ; officer's return : 
 In an action for damages for failure to re- 
 spond to a subpoena, the return of an officer 
 as to the service, even though insufficient, is 
 not conclusive. The plaintiff may show as a 
 matter of fact, independent of the officer's 
 return, that the writ was duly and legally 
 served, also that the copy was delivered: 
 McCall V. Butterworth, 8-329. 
 
 4. Jiule for jprodiiction of hoohs and 
 papers. 
 
 909. Discretionary: The granting of the 
 rule provided for by statute (Code, § 3685) 
 for the production of books or papers is left 
 to the sound discretion of the court, and its 
 action will not be reversed unless all the facts 
 are before the supreme court and it appears 
 that such discretion was abused : Sheldon v. 
 Miekel, 40-19 ; Allison v. Vaughan, 40-421. 
 
 9 10. Negligence or delay of the party ap- 
 plying for the rule without any excuse being 
 offered therefor may be a suflScient ground 
 for refusing the order : Ibid. 
 
 911. Notice: A party cannot be required 
 to produce in court a written instrument 
 without previous notice and a reasonable 
 time for its production; and the contents 
 cannot be proved without having first re- 
 quired its production : Greenough v. Shelden. 
 9-503. 
 
708 
 
 EVIDENCE, III, 5, 6. 
 
 Procuring affidavits. — Depositions; perpetuating testimony. 
 
 912. Production of telegraphic messages: 
 
 The statutory provision (Code, § 1338) that 
 any person employed in transmitting mes- 
 sages by telegraph shall be guilty of a mis- 
 demeanor in making known the contents of 
 any such message to any person except the 
 person to whom it is addressed, does not pre- 
 vent the agent of a telegraph company, 
 properly subpoenaed in a controversy be- 
 tween two parties, from producing messages 
 w^hich have passed between them in evidence : 
 Woods V. Miller, 55-168. 
 
 5. Procuring affidavits. 
 
 913. Colapulsory; conlempt: Under a 
 statute (Code, § 3693) providing that any offi- 
 cer competent to take depositions may, on 
 application, if satisfied that the object is legal 
 and proper, issue his subpcena to bring a wit- 
 ness before him, and upon his refusing to 
 make affidavit of the facts within his knowl- 
 edge to the extent required of him, proceed 
 to take his deposition by question and answer, 
 etc., the party subpoenaed cannot be excused 
 from making the affidavit or answering the 
 questions propounded, on the ground that 
 the affidavit desired would not be' legally ad- 
 missible in proceedings for which it is sought. 
 Neither the officer before whom the witness 
 is brought, nor the witness himself, is allowed 
 to determine that question in advance, and a 
 failure to respond to the subpoena or to an- 
 swer when brotight before the officer may be 
 punished as a contempt : RoVb v. McDonald, 
 39-330. 
 
 914. A justice of the peace to whom such 
 application is made has full power to pass 
 upon the question of the legality or propriety 
 of the affidavit sought, and is not without 
 ■jurisdiction to issue a subpoena to compel 
 such affidavit, though as a matter of law it 
 appears on the face of the petition therefor 
 that it could not, when taken, have any legal 
 use. An order of the justice of the peace 
 imprisoning a witness for contempt in i-efus- 
 ing to make the affidavit when properly re- 
 quired will not be inquired into by the 
 supreme court in a: habeas corpus proceeding: 
 State ex rel. v. Beaton, 61-563. 
 
 915. But the statutory provisions just re- 
 ferred to are not applicable where the affida- 
 vit is sought merely for information. The 
 use for which the affidavit or deposition 
 
 may be taken is manifestly a legal use as 
 evidence, and the officer should not issue a 
 subpcena where the affidavit required is not 
 ostensibly for such legal use, and if ostensibly 
 for such use, the officer should still be satis- 
 fied that it is desired for such use in fact. 
 Therefore, where the affidavit was sought, 
 not for use in a pending proceeding but to 
 procure information for the purpose of com- 
 mencing an action, held, that the witness 
 committed for contempt in refusing to obey 
 the subpoena should have been discharged 
 on habeas corpus: Dudley v. McOord, 65-671. 
 
 6. Depositions; perpetuating testi- 
 mony. 
 
 916. Grounds for taking: If the deposi- 
 tion shows that the witness is a non-resident, 
 that is sufficient, although the witness states 
 that he expects to be present at the trial; 
 and unless he is actually present the deposi- 
 tion should not be excluded : Nevan v. Roup, 
 8-307. 
 
 917. Whether the reason shown for taking 
 the deposition is a valid one or not, if objec- 
 tion is not made to the taking, it may be read 
 if the witness is not in court : Coole v. Blair, 
 50-128. 
 
 918. Where a deposition is taken upon no- 
 tice, and the adverse party appears and does 
 not object to the want of statutory ground, 
 the objection for want of such ground for 
 taking the deposition may be deemed waived, 
 but the deposition of a witness or the tran- 
 script of his evidence, taken in shorthand on 
 a former irial, are not admissible in a law 
 action without some statutory ground for 
 taking his deposition appears or such objec- 
 tion is waived : Baldivin v. St. Louis, K. & 
 N. R. Co., 68-37. 
 
 919. Where it is sought to show, for the 
 purpose of rendering a deposition or tran- 
 script of the evidence of a witness on a 
 former trial admissible on the ground that 
 the witness has become a non-resident, such 
 fact must be established by testimony of 
 some one who can testify as to the fact, or 
 circumstances justifying an inference of such 
 fact. It cannot be found from common 
 report or reputation : Ibid. 
 
 920. Upon notice or by ccmmi.«sion: If 
 the witness resides out of the county, but 
 within the state, his deposition may be taken 
 
EVIDENCE, III, 6. 
 
 700 
 
 Depositions; perpetuating testimony. 
 
 eitlier on commission or on notice; if he 
 resides out of the state, it can only be on 
 commission ; if within the county, it must be 
 by notice : Fabian v. Davis, 5-456. 
 
 921. If the witness resides out of the state, 
 but his deposition, can be taken within the 
 county where suit is pending, it may be 
 taken on notice, and need not be by com- 
 mission: Anderson v. East on, 16-56. 
 
 922. Suffleieuey of notice: Wherethe no- 
 tice stated the place for taking the deposition 
 as the oflEice of " Squire Moore," and the cer- 
 tificate showed that it was taken at the office 
 of "Epos Moore," lield, that the notice was 
 insufficient in that respect, and the deposi- 
 tion was properlj' suppressed: McCUntock v. 
 Crick, 4^453. 
 
 923. Objection to the sufficiency of tlie 
 notice is waived by appearing and cross-ex- 
 amining the witness : Nevan v. Roup, 8-207. 
 
 924-. "Where a party to an action dies after 
 notice is served to take depositions, but be- 
 fore they are taken, , they are illegal and 
 should be stricken from the files on motion : 
 Kershman v. Swhela, 59-93. 
 
 025. When service is on a party, the ad- 
 ditional days for the distance of travel as 
 provided by statute are to be added to the 
 five days ; and, in all cases, in computing the 
 time, the first day is to be excluded, and 
 the last included : Richardson v. Burlington 
 <&M.R. R. Co., 8-260. 
 
 926. The five days' notice referred to by 
 statute is not intended to mean five clear 
 days : Bonney v. Cooke, 61-803. 
 
 027. Where it does not appear that any 
 travel is necessary from the place where the 
 party lives or the place where notice is served 
 to the place where the deposition is to be 
 taken, it should not be suppressed for insuffi- 
 ciency of notice on account of want of allow- 
 ance for time of travel: Adams v. Peck, 4r- 
 551. 
 
 928. The fact that depositions in a, case 
 where defendant makes default are taken, as 
 authorized by statute, upon notice filed with 
 the clerk and without cross-examination by 
 defendant, will not prevent their being used 
 on'a retrial of the case on the application of de- 
 fendant who appears and has his default set 
 aside : Watson v. Russell, 18-79. 
 
 929. Parties who have been properly 
 served with notice of the taking of a deposi- 
 
 tion cannot object to it because other parties 
 were not notified : Glenn v. Olenn, 17-498. 
 
 930. Stilting name of witness: The name 
 of the witness whose testimony is to be taken 
 should be stated in the notice: Pilmer v. 
 Branch of State Bank, 16-321. 
 
 931. If there is a material difference be- 
 tween the name of the witness as given in 
 the notice and that of the person whose dep- 
 osition is taken, the deposition may be sup- 
 pressed on motion: Strayer v. Wilson, 54- 
 565. 
 
 9.32. Where an agreement was made to 
 take the deposition of S. M. Kinne, and the 
 deposition of Sally E. McKiune was taken, 
 held, that it was properly suppressed upon 
 motion : Glenn v. Gleason, 61-28. 
 
 933. The fact that the notice and commis- 
 sion state the name of the witness in full 
 while the deposition only sets out the initials 
 of his first name is not a sufficient objection 
 to justify the suppression of the deposition : 
 Grimes v. Martin, 10-347. 
 
 934. The eommission: It is not essential 
 that the notice and interrogatories be on file 
 in the clerk's office on the day fixed for the 
 commission to issue. The opposite party 
 having been served with a copy of the in- 
 terrogatories, the filing of the original in- 
 terrogatories is not necessary to enable him 
 to file his cross-interrogatories. A delay of 
 seven days in issuing a commission after the 
 date fixed in the notice, held not such a de- 
 fect as to warrant the exclusion of the depo- 
 sition when taken : Bonney v. Cocke, 61-303. 
 
 935. A commission directed to "any no- 
 tary public within and for " any certain 
 county and state is sufficient to comply 
 with the requirements of the statute : Sheriff 
 V. Hull, 37-174. 
 
 93C. In a commission to take a deposition 
 ip the United States or Canada it is sufficient 
 to name the county and state in which the 
 commissioner resides. It is not necessary to 
 name the city or town: Lyon v. Barrows, 
 13-428. 
 
 937. A mistake in the title of the court of 
 which the commissioner was clerk, and in 
 the nanre of such clerk, held fatal: Jones v. 
 Smith, 6-229. 
 
 938. Where the commission was directed 
 to the "clerk of the district court of Morgan 
 county,'' etc., and the deposition was taken 
 
no 
 
 EVIDENCE, III, 6. 
 
 Depositions ; perpetuating testinlon}^ 
 
 and certified by tlie "clerk of the court of 
 common pleas " of that county, held, that 
 the deposition should have been suppressed : 
 Plummer v. Roads, 4-587. 
 
 OSS. But if it were made to appear in any 
 sufficient manner that there was no district 
 court such as that mentioned in the notice, 
 and that the court of common pleas was a 
 court of the same character and jurisdic- 
 tion, the objection to the deposition would 
 not be sufiScient : Ibid. 
 
 940. Where a commission to take deposi- 
 tions was directed "To any notary public in 
 and for the county of Baltimore, the state 
 of Maryland," and the depositions were 
 taken by a person designating himself as " a 
 notary public of the state of Maryland, duly 
 commissioned and qualified, residing in the 
 city of Baltimore and the state of Mary- 
 land," held, that the depositions should be 
 excluded, and that parol evidence was not 
 admissible to show that notaries public in the 
 city of Baltimore were notaries for the whole 
 state : State v. Cross, 68-180. 
 
 941. It is not proper to select and direct 
 a commission in the alternative to several of 
 the officers mentioned by statute: Levally 
 V. Harmon's Adm'r, 20-583. 
 
 942. If a notary, before whom depositions 
 are taken, is such an officer de facto, they 
 cannot be suppressed on the ground that he 
 had not properly qualified, and was not such 
 office dejure: Keeney v. Leas, 14-464. 
 
 943. The taking of the deposition: A dep- 
 osition in which the questions and answei-s 
 were written out by the attorney of one of the 
 parties was held to have been properly sup- 
 pressed, where it appeared that the opposite 
 party was not present and did not consent 
 thereto : Hurst v. Larpin, 31-484. 
 
 944. Where the statutory provision, that 
 neither a party nor his agent nor attorney 
 shall be present at the examination of a wit- 
 ness whose deposition is taken upon vsritten 
 interrogatories unless both parties are pres- 
 ent or represented, has been violated, prej- 
 udice will be presumed to result therefrom, 
 at least, in the absence of a showing to the 
 contrary : Sheriff v. Hull, 37-174. 
 
 945. Where the notice stated that the dep- 
 osition would be taken between the hours 
 of nine o'clock A. M. and six P. M., and it 
 was in fact completed and the witness was 
 
 gone before eleven A. M., at which time the 
 attorney for the opposite party was present 
 to examine the witness, held, that it was re- 
 ceivable in evidence, no showing of bad faith 
 or improper conduct being made, and it not 
 appearing what the opposite party expected 
 to prove by his cross-examination : Scharf en- 
 burg V. Bishop, 35-60. 
 
 94G. Exhibits: A deposition should not be 
 suppressed because of failure to attach as ex- 
 hibits certain deeds and notes incidentally 
 referred to by the witness but not in his con- 
 trol of forming the basis of the action and 
 about the contents of which there is no dis- 
 pute : Lyon v. Barrows, l'3-438. 
 
 947. A witness may embody in his deposi- 
 tion, by way of exhibit, answers made in 
 another deposition, although the opposite 
 party was not a party to the taking of such 
 other deposition: Bixby v. Oarsladdon, 63- 
 164. 
 
 948. Certificate: The certificate of the 
 officer must show that the requirements of 
 the statute with relation to the taking of dep- 
 ositions, such as, for instance, that the dep- 
 osition has been read to the witn&ss before 
 signing, have been complied with ; and held, 
 that a certificate merely showing the fact of 
 signing and swearing, and the time and place 
 thereof, was not sufficient: Ball v. Sykes, 
 70 . 
 
 949. The person executing the commission 
 and making a return of his doings should 
 appear to be the person commissioned, and 
 should so appear of record from the certifi- 
 cate appended to and x-eturned with the com- 
 mission ; but where the commission was 
 issued to Fred. R — , and the certificate was 
 signed F. A. R — , held, that the presumption 
 that the commission was sent to the person 
 named therein, and the certificate signed by 
 a name which might be that of the person to 
 whom it- was sent, were sufficient to show 
 that the commission was properly executed ; 
 also, held, that the re-issuance of the com- 
 mission on an order of the court, in order that 
 the proper return might be made, was not 
 error, no prejudice being shown: Byington 
 i: Moore, 63-470. 
 
 950. Where it appears from the caption of 
 a deposition that it was taken before the 
 proper officer, in the proper county, and that 
 the witness was first duly sworn, and from 
 
EVIDENCE, III, 6. 
 
 711 
 
 Depositions; perpetuating testimony. 
 
 the certificate that the deposition was read 
 over by said witness, and subscribed and 
 sworn to by said deponent therein, it suffi- 
 ciently appears that the statute has been 
 complied with : Vaughn v. Smith, 58-558. 
 
 i)51. The officer taking the deposition may, 
 it liis certificate is defective in not showing 
 facts essential to render the deposition receiv- 
 able in evidence, return an amended certifi- 
 cate which, in the absence of any showing or 
 complamt that it does not state the facts, 
 may be accepted as true, and this may be 
 (lone even after the filing of a motion to sup- 
 jji'ess the deposition for the defects in the 
 first certificate: McKinley v. Chicago <fe N. 
 W. R. Co., 44-314. 
 
 That the certificate of a notary taking a 
 deposition must be authenticated by his seal, 
 see NoTAKY Public, § 2. 
 
 952. Filing: Failure of the clerk to make 
 entry on the appearance docket of the fact of 
 filing a deposition will not prevent its being 
 introduced in evidence: Byington v. Moore, 
 iyi-i70: 
 
 953. Custody: Under a statutory provision 
 prohibiting the deposition, when filed, from 
 being taken from the clerk's office before the 
 next term of court except by mutual written 
 consent of the parties, held, that where depo- 
 sitions were allowed to be taken out in viola- 
 tion of such provision, but for an honest 
 purpose, and the violation was merely tech- 
 nical and without prejudice, the subsequent 
 admission of the deposition in evidence was 
 not sufficient error to warrant a reversal : 
 Wolverton v. Ellis, 18-413. 
 
 954. Under such statutory provision, it is 
 not a ground for suppression of a deposition 
 that it has been taken from the clerk's office 
 by the attorney of the opposite party during 
 the next term of court after filing: Hoga- 
 boom V. Price, 53-703. 
 
 955. Objections: An objection that aques- 
 tion propounded to the witness oh the taking 
 of his deposition is leading cannot be taken 
 after the deposition is returned into court 
 and offered in evidence. It should be made 
 when the deposition is taken: Keeney v. 
 Chilis, 4 G. Gr., 416; Mumma v. McKee, 10- 
 107. 
 
 956. The better rule is to require that 
 objections to the form of interrogatories pro- 
 posed, where the deposition is to be taken by 
 
 commission, should be made before the com- 
 mission issues : Jones v. Smith, 6-229. 
 
 957. Motions to suppress depositiono are 
 required by statute to be made before the 
 commencement of the trial : Frazier v. Smith, 
 10-591 ; Bays v. Herring, 51-286. 
 
 958. It is also required by the same pro- 
 vision (Code, § 3751) that no exception to a 
 deposition other than for incompetency or 
 irrelevancy shall be regarded unless made by 
 motion, filed by the morning of the second 
 day of the first term after the deposition has 
 been filed, providing the deposition has been 
 filed three days prior thereto, and if the 
 deposition is afterwards received, such mo- 
 tion shall be filed by the morning of the 
 third day thereafter. Such statutory require- 
 ment is applicable to the objection that 
 questions in the deposition are improper or 
 do not call for the best evidence : Nelson v. 
 Chicago, R. I. & P. B. Co., 38-564. 
 
 959. This requirement is applicable to a 
 motion to suppress a portion of a deposition 
 on the ground that it is not proper cross-ex- 
 amination. The mere noting of the objection 
 on the deposition at the time it is t-aken is 
 not sufficient: Johnson v. Chicago, R. I. & 
 P. R. Co., 51-25. 
 
 960. This statutory provision held appli- 
 cable to an objection that the statutory cross- 
 interrogatories were not answered in a 
 deposition taken upon commission, and also 
 where it was objected that copies of notes re- 
 ferred to in the answers were not attached : 
 Harris Mfg. Co. v. Marsh, 49-11. 
 
 961. An entry in the notice book of the 
 cu'cuit court purporting to show the filing of 
 depositions which ore not actually filed will 
 not limit the time of filing motion to sup- 
 press such depositions ; and such motion may 
 be made after the case has been called for 
 trial where the . depositions have not previ- 
 ously been filed : Accola v. Chicago, B. & Q. 
 R. Co.. 70 . 
 
 962. An objection to a deposition for defect 
 in the notice, first interposed when it is of- 
 fered in evidence on the trial, will not be re- 
 garded, although exception was taken to the 
 notice before the commission issued: Pilmev 
 V. Branch of State Bank, 16-331. 
 
 963. Where the attorney, on the day that . 
 the cause was called for trial, asked time in 
 which to file objections, and it appeared that 
 
712. 
 
 EVIDENCE, III, 6. 
 
 Depositions ; perpetuating testimony. 
 
 the depositions had been on file more than 
 thirty-six hours, and it did not appear but 
 that the attorney had had knowledge of sucli 
 fact, held, that his application was properly 
 overruled : Byington v. Moore, 63-470. 
 
 961. Objection to the admissibility of the 
 evidence of a witness who is incompetent, as 
 where a husband or wife is called to testify 
 against the otlier, should be made at the time 
 the witness is called, and is too late if not in- 
 terposed until the end of the deposition or 
 when it is offered to be read in evidence on 
 the trial : Watson v. Riskamira, 45-231 ; 
 Greedy v. MoOee, 55-759. 
 
 965. An objection to the competency of 
 the deposition, where the witness is claimed 
 to be incompetent because the action is by 
 an administrator, made at the time of the 
 trial, cannot be considered where the same 
 deposition has been received in a previous 
 trial in the same case without objection: 
 McMillan v. Burlington & M. B. R. Co., 56- 
 421. 
 
 966. An objection to testimony on the 
 ground that it relates to a personal transac- 
 tion between the witness and decedent in an 
 action by or against an administrator is an 
 objection to competency, and therefore not 
 within the statutory provision requiring that 
 objections other than for incompetency or 
 irrelevancy shall be made on the second day 
 of the first term after the deposition is filed : 
 Burton v. Baldwin, 61-283. 
 
 967. The objection that the witness, al- 
 though examined before a notary public in 
 this state, is not a resident of this state, must 
 be deemed waived if not taken when the 
 residence of the witness is first disclosed; and 
 where the counsel for the adverse party has 
 been present and interposed no objection to 
 the taking of the deposition until it has 
 been signed, the objection cannot be main- 
 tained : Burrows v. Stryker, 47-477. 
 
 968. Objection to a part of the deposition 
 on the ground that it is not proper cross-ex- 
 amination is too late if not made until the 
 deposition is offered in evidence : Bixby v. 
 Carskaddon, 63-164. 
 
 969. Where exceptions to questions and 
 answers were filed with the notary taking 
 the deposition, but it did not appear that the 
 same were brought to the attention of the 
 court within the time required by statute. 
 
 held, that they could not afterwards be relied 
 upon : Neimeyer v. Cass County Bank, 43-1 21. 
 9V0. Where a deposition is taken for usi' 
 in a justice's court, objections thereto other 
 than for incompetency or irrelevancy should 
 be made in the justice's court and cannot be 
 made for the first time when the case ia 
 tried on appeal : Alverson v. Bell, 13-808. 
 
 971. An objection relating to the legality 
 of the proof at the time it is offered cannot 
 be required to be made at the time of taking 
 the deposition: Horseman v. Todhunter, 12- 
 230. 
 
 972. Exclusion of depositions: The mere 
 f act'that depositions in an equity case are filed 
 after the time within which by order of the 
 court the party has been required to file them 
 is not sufiBcient ground for striking them from 
 the files in the trial of the case : Sweet v. 
 Brown, 61-669. 
 
 973. It will not constitute reversible error, 
 that a deposition is received which is taken 
 after the time allowed to the party for tak- 
 ing depositions, when it appears that ad- 
 ditional time was also allowed to the other 
 party for the same purpose: Gardner v. 
 Trenary, 65-646. 
 
 974. A deposition should not be excluded 
 unless objection is made thereto: Criok v. 
 McClintic, i G. Gr., 290. 
 
 975. A general objection to a deposition, a 
 portion of which is properly admissible, is 
 insufficient : Whitaker v. Sigler, 44r-419. 
 
 976. A mistake merely clerical in the date 
 named in the caption, held not sufiicient to 
 exclude the deposition ; but a mistake in the 
 commission as to the title of the court of 
 which the commissioner was clerk and in the 
 name of the clerk, held fatal: Jones v. 
 Smith, 6-229. 
 
 977. The overruling of a motion to sup- 
 press a deposition is error without prejudice 
 where the witness testifies in person on the 
 trial and such testimony is more favorable 
 to the party complaining than that contained 
 in the deposition: Curry v. Allen, 60-387. 
 
 978. Striking out portion of deposition: 
 The court cannot, upon motion, strike out a 
 portion of an interrogatory in a deposition, 
 leaving the answer standing: Pelamourges v. 
 Clark, 9-1. 
 
 979. A question and answer in a deposi- 
 tion should not be suppressed entirely where 
 
EVIDENCE, III, 6, 7, a. 
 
 '—I o 
 
 Depositions ; perpetuating testimony. — Competency and credibility. 
 
 they are proper as to one matter referred to 
 therein, but embrace something which is 
 improper : Adae v. Zangs, 41-536. 
 
 980. Matters stated in answers to inter- 
 rogatories in a deposition held to be such as 
 not called for by the question and therefore 
 subject to be stricken out on motion: Hen- 
 dridks v. Wallis, 7-224. 
 
 981. The rule requiring an answer to be 
 responsive to the interrogatory should be 
 substantially enforced : McCarver v. Nealey, 
 1 G. Gr., 360. 
 
 982. Introduclion of deposition: A dep- 
 osition need not be introduced by the party 
 taking it, but the other party may iqti-oduce it 
 if he so desire : Hale v. Gibbs, 43-380 ; Wheeler 
 V. Smith, 13-564 ; Felamourges v. Clark, 9-1, 
 16; Crick v. McClintic, 4 G. Gr., 290. 
 
 983. Depositions properly taken may be 
 introduced by either party for the purpose of 
 establishing any materal point in the case : 
 Brown v. Byavi, 65-374. 
 
 984. A stipulation that a deposition when 
 taken shall be receivable in evidence upon the 
 trial of any case pending in the court named, 
 between the same parties, will render a dep- 
 osition taken in one such case admissible in 
 any other: Holmes v. Budd, 11-186. 
 
 985. The party on whose behalf a depo- 
 sition has been taken cannot read a portion 
 thereof and omit other portions. The entire 
 deposition, so far as competent and pertinent, 
 should be read or none: Kilbom-ne v. Jen- 
 nings, 40-473. 
 
 986. A deposition taken by a party is un- 
 der his control, and, althotigh he cannot 
 withdraw it from the files, he can withhold 
 it at pleasure, or any part of it, but the 
 opposite party may introduce it in evidence if 
 he sees fit, or a portion thereof not introduced 
 by the party taking it : Hale v. Oibbs, 43-380. 
 
 987. It is not error to allo%v a party to read 
 a portion of the deposition of the opposite 
 party taken by him, where it contains an 
 admission : Van Horn v. Smith, 59-142. 
 
 988. One party may introduce a deposition 
 taken by his adversary, but which such adver- 
 sary declines to introduce. If the witness 
 has been examined as to different transac- 
 tions, a party introducing the deiiositiou may 
 introduce such portions of it as touch one or 
 
 more portions of the transaction, and decline 
 to introduce it as to others. But he cannot 
 be permitted to introduce a portion of it as 
 to any given subject, while declining to in- 
 troduce all that the witness has said upon that 
 subject: Citizens' Bank v. Rhutasel, 67-316. 
 
 989. Depositions taken in a former action 
 may be introduced in a subsequent action be- 
 tween the same parties without noti ce that 
 such depositions will be offered in the subse- 
 quent action : Shaul v. Brown, 28-37. 
 
 990. Depositions taken in one action may 
 be used in a subsequent action between the 
 privies of the parties to the former action : 
 Atkins V. Anderson, 63-739. 
 
 991. But a party should not be permitted 
 to use depositions upon the trial of one cause 
 which have been taken in another without 
 having filed them in the cause for which he 
 proposes to use them or obtained leave before 
 the commencement of the trial to so use 
 them. Otherwise the opposite party would 
 not have the opportunity which the statute 
 contemplates of taking exception to such dep- 
 ositions : Searle v. Richardson, 67-170. 
 
 In criminal prosecutions depositions can- 
 nct be introduced for the prosecution except 
 by defendant's consent : See Constitutionai, 
 Law, §§ 67, 68. 
 
 In equitable actions the evidence may be 
 taken by depositions : See Practice, §§ 40- 
 43. 
 
 992. Perpetuating testimony by deposi- 
 tion : Where, in a proceeding to perpetuate 
 testimony (under Code, §g 3746-3750), the 
 petition stated the name of the person intei-- 
 ested as. the "C, B. & Q. R. E. Co.," held, 
 that it was not a sufficient designation of the 
 corporation whose name was the "Chicago, 
 Burlington and Quincy Railroad Company " 
 so as to render the evidence taken in such 
 proceeding afterwards admissible as against 
 such corporation: Accola v. Chicago, B. tS: 
 Q. B. Co., 70 . 
 
 7. Competency and credibility; im- 
 peachment of witness. 
 
 a. Competency as affected hy interest.^ 
 
 993. Power of legislature: There is noth- 
 ing in the constitutional provision as to com- 
 
 '• The fact that a witness is a party to or is interested in the result of a suit is, by statute (Code, § 3633), no 
 longer a ground for excluding him as a witness, but such facts may be shown for the purpose of lessening his 
 credibility (Code, § 3837). As to credibility, see infra, §§ 118T-1141. 
 
714 
 
 EVIDENCE, III, 7. a. 
 
 Competency as affected by interest. 
 
 petency of witnesses that takes from the 
 general assembly the power to declare that 
 interest in the event of a suit shall disqualify 
 or shall not disqualify a witness, according as 
 it shall in its wisdom think best : Karney v. 
 Paisley, 13-89; Donnellv. Braden, 70 . 
 
 994. Interest, what sufficient to disqual- 
 ify: If a party to the record has absolutely 
 no interest, or where his interest is all against 
 the party calling him, he is competent to tes- 
 tify. The tendency has been in later times 
 and in later cases to refer the objection rather 
 to the credit of the witness, and not to exclude 
 the light unless there is a necessity for it : 
 Danforth v. Carter, 4-330. 
 
 995. Whenever precedent wUl admit, the 
 courts will let in the truth by holding objec- 
 tions to apply rather to the credit than the 
 competency of the witness : Adams v. Foley, 
 
 996. The true test of interest is that the 
 witness will either lose or gain by the du-ect 
 legal operation and effect of the judgment, or 
 that the record will be legal evidence for or 
 against hiin in some other action : Cutter v. 
 Fanning, S-580. 
 
 997. But objections on the score of interest 
 are not to be favored, and the safe rule is to 
 admit the witness, when there is doubt on the 
 fact, and allow the objection to appjy to his 
 credit rather than to his competency : Ibid. 
 
 998. The rule excluding parties from being 
 witnesses applies to all cases where a party 
 has any interest at stake in the suit, although 
 it be only a liability to costs, as, for instance, 
 in the case of a next friend, a guardian, an 
 executor, or an administrator. And so, also, 
 in case of trustees and officers of corpora- 
 tions, whether public or private, wherever 
 they are liable in the first instance for the 
 costs, though they may have a remedy for 
 reimbursement out of a public or trust fund : 
 Cherry v. McCorMe, 8-532. 
 
 999. The fact that a prosecuting witness 
 may be liable for the costs of prosecution, and 
 that he will be entitled to a portion of the 
 penalty in case of conviction, will not render 
 him incompetent on the ground of interest : 
 United States v. Everest, Mor., 306. 
 
 1000. Under a statute not now in force 
 making parties incompetent unless called by 
 the opposite party, held, that upon being thus 
 called as a witness, a party could not be 
 
 cross-examined or made a witness as to his 
 own claim: Arthur v. Blunt, 12-200. 
 
 1001. The relation of parent and child be- 
 tween a party to the suit and the witness 
 does not render the latter incompetent: Cass 
 V. State, 2G. Gr., 353. 
 
 1002. Under the common law rule render- 
 ing a person interested incompetent as a wit- 
 ness, held, that one of two defendants jointly 
 indicted was not a competent witness for his 
 co-defendant until he should be discharged : 
 State V. Nash, 7-347, 388. 
 
 1003. But after the adoption of constitu- 
 tional and statutory provisions making all 
 persons qpmpetent except in certain specified 
 cases, one of which exceptions was that of 
 persons, having a direct, certain and legal in- 
 terest in the suit, held, that one of two de- 
 fendants jointly indicted for a crime did not 
 have such interest in the suit as to be incom- 
 petent to testify as a witness for his co- 
 defendant upon a separate trial, although the 
 witness had not yet been himself tried : State 
 V. Nash, 10-81. 
 
 Further as to co-defendants and accom- 
 plices as witnesses for or against each other, 
 see Criminal Law, III, 13, c. 
 
 1004. In an action by an executor, a per- 
 son who is the sole heir is so far directly in- 
 terested in the prosecution of the suit that he 
 is precluded from being a witness : Oushman 
 V. Blakesly, 3 G. Gr., 543. 
 
 1005. Where several defendants are sued 
 jointly for a tort, if after the testimony of 
 the plaintiff is closed no evidence has been 
 offered showing the guilt of one or any of 
 them, they may have a verdict in their favor 
 and then be introduced as competent wit- 
 nesses for their co-defendant ; but they can- 
 not become competent witnesses so long as 
 they are parties on the record and liable for 
 costs : Forshee v. Abrams, 3-571. 
 
 1006. A release by a person not a party to 
 the suit cannot operate to remove the dis- 
 qualification of a party to the suit as a wit- 
 ness: Wise V. Patterson, 3 G. Gr., 471. 
 
 1007. Where one of two joint defendants 
 allows judgment to be entered against him, 
 he thereupon becomes a competent witness 
 in behalf of his co-defendant : Oreenough v. 
 Shelden, 9-503. 
 
 1008. Where a party to a suit in his an- 
 swer fully confesses the cause of action, and 
 
EVIDENCE, III, 7, a, b. 
 
 715 
 
 Competency as affected by interest. 
 
 so far as he is concerned interposes no objec- 
 tion to a judgment against him, he becomes 
 a competent witness for his co-defendant: 
 Amis V. Stockton, 12-337. 
 
 1009. But wliere defendant, . although 
 making default, has not suffered judgment 
 to go against him, he does not become so far 
 disinterested as to become a competent wit- 
 ness : Williams v. Soutter, 7-435. 
 
 1010. Nor will a mere offer to allow judg- 
 ment to be entered, made by one defendant 
 without the actual entry of such judgment, 
 and while it remains possible for him to 
 reap the advantage of the defense of his co- 
 defendants, render him competent: Keys v. 
 Holmes, 11-139. 
 
 1011. The grantor of a deed may be called 
 on the side opposite to his interest, or where 
 his interest is balanced. The mere fact that 
 he is grantor is not sufficient to disqualify : 
 Robb V. Lefevre, 7-150. 
 
 1012. In a particular case, held, that the 
 interest of a witness was in equilibrium as 
 between the parties and he was therefore not 
 incompetent: Kingsbury v. Buchanan, 11-387. 
 
 1013. The execution debtor is a compe- 
 tent witness for the garnishee upon an issue 
 raised upon his answer claiming the money 
 is that of a third person instead of that of 
 the execution defendant : Tyler v. Coolbaugh, 
 7^74. 
 
 1014. Defendant in an action in which 
 garnishment proceedings are commenced to 
 subject a debt due him to the payment of a 
 claim against him is indifferent in interest as 
 between the garnishee and plaintiff, and is 
 therefore a competent witness: Randolph 
 Bank v. Armstrong, 11-515. 
 
 1015. Under a previous statute providing 
 that only a direct, certain and legal interest 
 in the suit should be sufficient to render the 
 witness incompetent, held, that it was not 
 sufficient that the effect of the judgment 
 would be only to establish a claim for or 
 against the witness, which could Le reached 
 only in another action, or to create an interest 
 in the record as an instrument of evidence 
 in some other suit or to create a liability 
 over: Cook v. Lyon, 10-433. 
 
 1016. The wife or husband of a legatee in a 
 will has not such interest therein as to render 
 
 such wife or husband incompetent as a wit- 
 ness to the will : Hawkins v. Hawkins, 54- 
 443 ; Bates v. Officer, 70 . 
 
 1017. Interest, how shown: Where the 
 interest of a witness is shown by evidence 
 aliunde, he should not be put upon his voir 
 dire; but if he is introduced in the first place 
 for the purpose of showing the fact of inter- 
 est, and by his testimony shows that he has 
 no interest, the party seeking to show such 
 interest is bound by his answers : Robinson 
 V. Turner, 3 G. Gr., 540. 
 
 That defendant is now competent as a wit- 
 ness in a criminal prosecution, see CRIMINAL 
 Law, III, 13, b. 
 
 1018. Objection on account of interest, 
 how taken : Objection to the competency of 
 a witness should, in general, be taken before 
 he is examined in chief, but it may also be 
 taken at any time during the trial, provided 
 it is interposed as soon as the interest is dis- 
 covered. If discovered during the examina- 
 tion in chief, it is not too late to make the 
 objection then: Veiths v. Hagge, 8-163, 181. 
 
 1019. Objection to the competency of a 
 witness cannot be raised for tlie first time 
 after the close of the testimony on both sides : 
 Mumma v. McKee, 10-107. 
 
 1020. Objection to a witness on the ground 
 of incompetency should be made when the 
 witness is first called, and if not then made 
 it is presumed to be waived and cannot be 
 made afterwards: Kingsbury v. Buchanan, 
 11-387. 
 
 1021. It is too late for a party, after pass- 
 ing the cross-examination with knowledge of 
 the incompetency of a witness, without ob- 
 jection to his testimony, and after remaining 
 silent until the opposite party has closed and 
 submitted the case, to then move to have the 
 testimony of such witness excluded on ac- 
 count of incompetency: Austin v. Peasley, 
 1 G. Gr., 357. 
 
 b. Incompetency of witness with re- 
 gard to -personal transaction, or 
 communication with person since 
 deceased or insane} 
 
 1022. The statutory proTision disquali- 
 fying persons interested, etc,, in the particu- 
 
 ' Code, § 3639. No party to any action or proceeding, nor any person interested in the event thereof, nor any 
 person from, through, or under whom any such party or interested person derives any interest or title by 
 
ri6 
 
 EVIDENCE, III, 7, b. 
 
 Incompetency in actions by or against administrator, etc. 
 
 lar case specified, is not unconstitutional as 
 in violation of the provision of Const., art. 1, 
 § 4, with relation to competency of witnesses. 
 Under the constitutional provision it is still 
 competent for the legislature to declare that 
 interest in the event of a suit shall or shall 
 not disqualify the witness : Karney v. Paisley, 
 13-89; Donnell v. Braxien, 70 . 
 
 1023. To what actions the proTision is 
 applicable: The disqualification provided for 
 in this section is not limited to actions brought 
 by an executor, assignee or guardian, but ap- 
 plies also in actions against such parties. It 
 extends, however, only to cases where the 
 witness is examined as against such execu- 
 tor, assignee or guardian, and not to cases 
 where he is examined by such party : Leas- 
 man V. Nicholson, 59-259. 
 
 1024. This section is applicable to a con- 
 troversy between the heirs of deceased : Neas 
 V. Neas, 61-641. 
 
 1025. Where an administrator, though a 
 party, was not a necessary party, and the 
 suit was dismissed as to him, held, that the 
 testimony of plaintiff as to a personal trans- 
 action between himself and decedent was 
 competent : Campbell v. Mayes, 38-9. 
 
 1026. The section is not applicable in an 
 action against an administrator de bonis non 
 where the transaction as to which the wit- 
 ness is called to testify was with a prior ad- 
 ministrator since deceased : Dunne v. Deery, 
 40-351. 
 
 1027. In a controversy between creditors 
 as to which was entitled to property in the 
 hands of an administrator, who was joined 
 as a party defendant, held, that the case was 
 not one in which such administrator was a 
 party, so as to prevent one of the creditors 
 who was a party to the suit from testifying 
 as to transactions with decedent : Gordon v. 
 Kennedy, 36-167. 
 
 1028. Who excludeil as parties: The stat- 
 utory provision given in the foot-note ex- 
 cludes as to certain matters the testimony, 
 first, of parties to the action, and, secondly. 
 
 ot persons interested therein; that a party is 
 shown not to have any interest in the matter 
 wOl not render him competent : Williams v. 
 Barrett, 52-637. 
 
 1029. The testimony of a party to an ac- 
 tion brought by an heir or administrator and 
 relating to a personal communication be- 
 tween himself and deceased is not competent, 
 although such party has no interest in com- 
 mon with the other defendants against such 
 heir or administrator: Burton v. Baldwin, 
 61-283. 
 
 1030. Where one of the parties defendant 
 in an action by an administrator had entered 
 into a stipulation for judgment against him 
 to a particular amount, held, that he was no 
 longer a party to the action in such sense as 
 to be disqualified from testifying under this 
 section, although judgment had not yet been 
 formally rendered: Conger v. Bean, 58-32J. 
 
 1031. What interests sufficient to dis- 
 qualify: The interest of an administrator no 
 longer disqualifies him from testifying in an 
 action to which he is a party. But if the ad- 
 verse party is an executor, so as to bring the 
 case within the statutory provision hereto- 
 fore given, the administrator cannot testify: 
 Schmid v. Kreismer, 31-479. 
 
 1032. The interest which disqualifies must 
 be a legal, certain and immediate interest. 
 If it be a doubtful one, the objection goes to 
 the credibility of the witness : Birge v. RMne- 
 hart, 36-369. 
 
 1033. The true test of such interest is, 
 that the witness will either gain or lose by 
 the direct, legal operation and eflfect of the 
 judgment, or that the record will be legal 
 evidence for or against him in some other 
 action. If the interest is of a doubtful nat- 
 ure, the objection goes to the credit of the 
 witness, and not to his competency : Worm- 
 ley V. Hamburg, 40-22. 
 
 1034. The interest contemplated as sufiS- 
 cient to exclude a witness is such as would, 
 at common law, disqualify him. Where the 
 witness has equal interest on both sides, he 
 
 assignment or otherwise, and no husband or wife of any said party or person, shall be examined as a witness 
 in regard to any personal transaction or communication between such witness and a person at the commence- 
 ment of such examination, deceased, insane,'or luiiatic; against the executor, administrator, heir-at law, cext 
 of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or guardian of such 
 insane person or lunatic. But this prohibition shall not extend to any ti'ansaction or communication as to 
 which any such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or guard- 
 ian, shall be examined on his own behalf, or as to which the testimony ot such deceased or insane person or 
 lunatic shall be given in evidence. 
 
EVIDENCE, III, 7, b. 
 
 m 
 
 Incompetency in actions by or against administrator, etc. 
 
 will not be disqualified : Goddard v. Lefflng- 
 u-ell, 40-249. 
 
 1035. The interest sufficient to disqualify 
 must be present, certain and vested. It will 
 not be sufficient that at a prior time the wit- 
 ness might have been the holder of an equi- 
 table interest in the property in controversy : 
 Zerbe v. Reigart, 43-239. 
 
 103G. In an action by an administrator 
 against a person to recover property of the 
 estate wrongfully appropriated, an heir of 
 decedent who would be entitled to a distrib- 
 utive share of the estate not required for the 
 payment of debts is an interested witness 
 unless it appears that the estate is insolvent : 
 Ivers V. Ivers, 61-731. 
 
 1037. In such case a mere disclaimer by 
 the witness of any interest in the estate will 
 not render him competent, as such dis- 
 claimer will not operate to release his inter- 
 est: Ibid. 
 
 1038. In an action by the widow and ad- 
 ministratrix of a deceased person to recover 
 from the heirs property claimed to belong to 
 the estate, testimony of the heirs as to a gift 
 to them of the property by deceased dui-ing 
 his life-time is not admissible: Samson v. 
 Samson, 67-353. 
 
 1039. In such case, lield, that the husband 
 of one of the heirs, who was present during 
 the transaction, and. at his wife's request, 
 joined with her in an undertaking to make 
 payments to her father in consideration of 
 the property received, was not a competent 
 witness as to the transaction : Ibid. 
 
 1040. But the wife of one of the heirs, 
 who was present at the time of the transac- 
 tion with such heir, but was not a party to 
 such traijsaction, held a competent witness : 
 lUd. 
 
 1041. In an action by a corporation against 
 the executor of the decedent, held, that a 
 stockholder of plaintiff could not be allowed to 
 testify as to a contract between plaintiff and 
 deceased: First Nat. Bank v. Oiven, 53-107. 
 
 1042. The statute is not to be construed as 
 applicable only to witnesses who are inter- 
 ested in favor of the party introducing them : 
 Donnell v. Braden, 70 . 
 
 1043. A person whose liabilities would not 
 be affected by the result of the action, held 
 not incompetent to testify under this section : 
 Fuller V. Lendrum, 58-350. 
 
 1044. Under previous statutoi'y provision 
 (Rev., § 3983), which excluded the evidence 
 of the adverse party in a suit by or against an 
 executor, as to facts transpiring before de- 
 cedent's death, held, that the payee of the 
 note in controversy, who had transferred it to 
 the plaintiff as a good faith purchaser before 
 maturity, had no interest in an action brought 
 thereon against the administrator of the 
 maker of the note such as to disqualify him 
 from testifying: Burroughs v. McLain, 37-189. 
 
 1045. The facts in a particular case held 
 not to show any inte;-est on the part of a 
 witness disqualifying him to testify as to ad- 
 missions made to him by deceased: Bixleyv. 
 Warmly, 44-347. 
 
 1046. Wliat deemed personal transac- 
 tions: It is only as to personal transactions 
 between himself and deceased that a party 
 is, under Code, § 3639, prohibited from testi- 
 fying: Sypherv. Savery, 39-358, 2M;Haverly 
 V. Aloott, 57-171. 
 
 1047. The payment of a note to the de- 
 ceased is a personal transaction within the 
 meaning of this section : Williams v. Broivn, 
 45-103. 
 
 1048. The delivery of a deed from witness 
 to decedent is a personal transaction within 
 the meaning of this statutory pi-ovision- 
 Wood V. Brolliar, 40-591. 
 
 1049. In an action against an administrator 
 on a note claimed to have been given by 
 decedent to plaintiff for labor performed by 
 plaintiff's wife for deceased, held, that testi- 
 mony of the wife respecting the amount of 
 labor performed by her for deceased was not 
 admissible : Ashworth v. Ch-ubbs, 47-353. 
 
 1050. Where it is sought to recover against 
 an administrator for work done, etc., with 
 the knowledge or assent of deceased, in such 
 way as to raise an implied promise, the party 
 seeking to recover cannot give evidence of 
 the work done: Peek v. McKean, 45-18; 
 Smith V. Johnson, 45-308; Wilson v. Wilson, 
 53-44. 
 
 1051. In an action by the wife of deceased 
 upon a note executed to her in a settle- 
 ment between deceased and defendant, held, 
 that evidence of defendant as to what oc- 
 curred at the time of such settlement was not 
 admissible : Wilcox v. Jackson, 51-308. 
 
 1052. Where plaintiff proposed to prove 
 upon his own testimony, in an action against 
 
718 
 
 EVIDENCE, III, 7, b. 
 
 Incompetency in actions by or against administratoi', etc. 
 
 an administrator for services alleged to have 
 been rendered decedent under contract, that 
 he had never received payment for such serv- 
 ices, held, that the evidence was properly 
 rejected : Van Sandt v. Cramer, 60-424. 
 
 1053. In a suit against the wife in respect 
 to the homestead for the purpose of enforc- 
 ing a claim under a conveyance of the same 
 in which she joined with the husband, her 
 testimony as to what was said to her by her 
 husband at the time of the conveyance, he 
 being since deceased, is not admissible: 
 Palmer v. Palmer, 62-204. 
 
 1054. Where a defendant, in an action by 
 an executor on a note, attempted to show that 
 such note was not the property of deceased, 
 but of a third person, for whom deceased acted 
 as agent, for the purpose of rendering admis- 
 sible evidence by defendant of payment 
 made to deceased on such note, held, that 
 such evidence of payment was not to be re- 
 ceived until defendant had satisfied the court 
 of the relation of agency as claimed : Will- 
 iams V. Brown, 45-102. 
 
 1055. The testimony of an heir is not in- 
 competent as to conversations which he heard 
 between deceased and defendant : Sweezey v. 
 Collins, 40-540. 
 
 1056. The personal transactions and com- 
 munications which, under this section, may 
 not be testified to by the wife, are those had 
 between her and the deceased, personally. 
 She is not incompetent to testify thereto, if 
 had between the deceased and her husband ; 
 therefore, held, that she might testify in re- 
 gard to conversations between her husband 
 and deceased, as to which she was a mere 
 listener : Johnson v. Johnson, 52-586. 
 
 105 7. The section does not forbid testimony 
 as to personal transactions and communica- 
 tions between deceased and another person 
 than the witness. The personal transaction 
 or communication must be had with the 
 witness in order to make his testimony inad- 
 missible : iines v. Lines, 54-600. 
 
 1058. In an action by an administrator, 
 held, that defendant was not incompetent as 
 a witness to testify as to the payment of 
 money to a third person upon a lien as to 
 which deceased appeared also to have made 
 payment, the transaction being with the 
 third person and not with deceased: Wormley 
 V. Hamburg, 46-144. 
 
 1059. The doing of certain acts in the 
 presence of deceased, not depending for 
 their value as evidence upon his presence, 
 held not to be a personal transaction with 
 him in such sense as to prevent the wife of 
 the party from testifying in respect thereto : 
 Dougherty v. Deeney, 41-19. 
 
 1060. In an action by an administrator 
 against defendant to recover a subscription 
 alleged to have been paid by deceased to 
 trustees and by said trustees to defendant, 
 held, that defendant was a competent wit- 
 ness as to the transaction between himself 
 and such trustees : Sypher v. Savery, 39-258. 
 
 1081. That a party defendant, in an action 
 by an administrator, after stating that he 
 signed the note sued on in his own house, 
 was allowed to state who were in the house 
 at that time, was held not error under this 
 section : Conger v. Bean, 58-331. 
 
 1062. In an action by an administrator on 
 a note executed to intestate, the party exe- 
 cuting the note is not precluded from testify- 
 ing as to the date on which the note was 
 actually made: Barlow v. Buckingham, 68- 
 169. 
 
 1063. Acts and conduct of legatees in a 
 will towards testator do not constitute a per- 
 sonal transaction between legatee and tes- 
 tator as to which the legatees cannot be called 
 to testify in a proceeding to probate the will : 
 Parsons v. Parsons, 66-754. 
 
 1064. The husband of the legatee under 
 the will is a competent witness to testify as 
 to the mental condition of testator. Such 
 condition does not relate to a personal trans- 
 action within the meaning of this section: 
 Severin v. Zack, 55-28. 
 
 1065. It is not necessary that the testator 
 should proclaioa or state to the subscrilfing 
 witnesses to his will that the instrument is his 
 will. And it is wholly unnecessary that there 
 should be any personal transaction between 
 the testator and the subscribing witnesses: 
 Bates V. Officer, 70 . 
 
 1066. In particular cases, held, that the 
 facts testified to by witness did not involve a 
 transaction between the witness and de- 
 cedent within the meanmg of the section: 
 Mayes v. Turley, 60-407; MUler n Dayton, 
 57-423. 
 
 1067. In rebnttal: A plaintiflE coming 
 within the terms of this section cannot testify 
 
EVIDENCE, III, 7, b. 
 
 719 
 
 Incompetency in actions by or against administrator, etc. 
 
 as to personal transactions between himself 
 and deceased, even to rebut the testimony of 
 decedent's widow : Canaday v. Johnson, 40- 
 587. 
 
 10G8. Removal of prohibition by testi- 
 mony of administrator, heir, etc.: The pro- 
 hibition prescribed in this section does not 
 extend to any transaction as to which the 
 administrator has been examined in his own 
 behalf: Ivers v. Ivers, 61-721. 
 
 1069. In an action by a husband against 
 the heirs of his deceased wife to set aside a 
 conveyance made by him to her during her 
 life-time, held, that the fact that defendant 
 was introduced as a witness would only re- 
 move the prohibition against the testimony 
 of plaintiff with reference to such transac- 
 tions as were testified to by defendant : Wood 
 V. BrolUar, 40-591. 
 
 1070. The fact that the executor or admin- 
 istrator testifies as to one transaction does 
 not entitle the opposite party to testify in 
 reference to other transactions with the dece- 
 dent : Luehrsmann v. Hoings, 60-708. 
 
 1071. The contestants of a will, in an ac- 
 tion to probate the same, having testified 
 only as to their relations with deceased, held, 
 that it was not competent for one of the 
 jiroponents to testify as to matters proposed 
 to be proved by him i Sisters of Visitation 
 V. Glass, 45-154. 
 
 1072. The statute contemplates that when 
 the administrator or other representative of 
 the deceased testifies as to a personal trans- 
 action and describes it, then a party may also 
 testify in relation thereto and give his ver- 
 sion of the transaction ; but the fact that the 
 administrator refers to a personal transaction 
 as possible does not open the way for the ad- 
 mission of such testimony : In re Estate of 
 Edwards, 58^31. 
 
 1073. When the executor testifies in his 
 own behalf, but not as to a personal transac- 
 tion, and liis testimony is not adverse to the 
 opposite party, the fact of his being a wit- 
 ness does not remove the prohibition as to 
 personal transactions : Ibid. 
 
 1074. Where the administrator testifies as 
 to transactions between defendant and de- 
 ceased raising an implied promise or obli- 
 gation on the pait of defendant to pay. 
 
 defendant may testify as to what the real 
 arrangement was in relation thereto : Bailey 
 V. Keyes, 53-90. 
 
 1075. Where a deposition is incompetent 
 by reason of the interest of one of the 
 parties to the suit, and the action is after- 
 wards dismissed as to that party, it will 
 become competent as to the others. The 
 common law rule as to the competency of a 
 witness, by which his deposition, if incompe- 
 tent on account of interest at the time it was 
 taken, will always remain incompetent, will 
 not apply : Campbell v. Mayes, 38-9. 
 
 10 70. But if the testimony of the witness 
 is incompetent, when taken, by reason of his 
 being a party, it is not admissible although 
 at the time it is offered the status of the 
 witness has changed and he is no longer a 
 party: Burton v. Baldwin, 61-383. 
 
 1077. The objection under this section is 
 not to the competency of the witness but to 
 the competency of the testimony : Ibid. 
 
 1078. Under previous statutory provis- 
 ions, 1 the administrator of a decedent was not 
 incompetent as a witness to testify in an action 
 brought by him to recover from another pos- 
 session of property of such decedent : Brad- 
 ley V. Kavanagh, 13-373. 
 
 1079. So in a proceeding against an estate 
 to enforce a claim the administrator was hold 
 competent: Stiles v. Botkin's Estate, 30-60. 
 
 1080. The widow of decedent was held not 
 incompetent to testify in an action against 
 the administrator of decedent to recover 
 compensation for support furnished to such 
 widow during the life-time of such decedent : 
 Bomans v. Hay's Adm'r, 13-270. 
 
 1081. And therefore defendant in a re- 
 plevin suit for goods taken on attachment 
 was not placed in such a position by the 
 death of the plaintiff in the attachment suit 
 that he became incompetent as a witness: 
 Bevan v. Hayden, 18-132. 
 
 1082. Where an action was pending 
 against a defendant, who subsequently died, 
 and whose administrator was then substi- 
 tuted, held, that a deposition of plaintiff 
 taken before defendant's death was not ad- 
 missible in evidence : Quick v. Brooks, 39-484. 
 
 1083. Also held, that the statute was not 
 applicable to a case where the person de- 
 
 ' The provisions of the Revision of 1860, § 3982, were quite different from those of the Code of 1873, heretofore 
 ref ei-red to, and the following decisions are only indirectly applicable to the latter. 
 
720 
 
 EVIDENCE, III, 7, b, c. 
 
 Competency of husband or wife. 
 
 ceased was merely a trustee and the person 
 beneficially interested was living : Watson v. 
 Russell, 18-79. 
 
 1084. The fact that matters sought to be 
 proved by a witness who is defendant In a 
 suit brought against him as surviving part- 
 ner for contribution, by the administrator of 
 his deceased partner, are connected with 
 transactions of the firm, and that the surviv- 
 ing member is a witness, cannot have effect 
 to annul the statutory provisions with refer- 
 ence to such testimony: Hosmer v. Burke, 
 26-353. 
 
 1085. In an action between a surviving 
 member of a partnership and a creditor of a 
 deceased member, held, that defendant was 
 not incompetent to testify as to a personal 
 transaction between liim and such deceased 
 member : Brown v. Allen, 35-306. 
 
 1086. In an action by an assignee in bank- 
 ruptcy of a surviving partner against a sup- 
 posed debtor of the firm, held, that defendant 
 was not prohibited from testifying as to per- 
 sonal transactions with the deceased partner : 
 Ruddich v. Otis, 33-403. 
 
 1087. Where in an action against an exec- 
 utor the only question was as to the amount 
 of money contained in an express package 
 which never reached the deceased, the testi- 
 mony of plaintifE was competent to prove the 
 amount of money contained in such package, 
 when deposited by him in the express office, 
 such evidence, for tlie specific purpose for 
 which it was offered, being competent from 
 the necessity of the case : Sylces v. Bates, 26- 
 521. 
 
 1088. In an action against the executor of 
 a deceased person, held, that the wife of 
 plaintiff was not incompetent, the exclusion 
 of the wife as a witness against her husband 
 not having been made on the ground of in- 
 terest: Wendding V. Besser, 31-248. 
 
 1089. Parties who were competent wit- 
 nesses at common law in the cases referred 
 to in the statutory provision are not rendered 
 incompetent by it : Cummins v. Hull's Adm'r, 
 35-353. 
 
 1090. And therefore evidence of a party 
 to facts and circumstances relating to the 
 
 loss of a paper was held receivable as prelim- 
 inary proof in order to warrant secondary 
 proof of its contents: Keech v. Cowles, 34- 
 259. 
 
 1091. The statutory provisions held not 
 to operate to exclude the testimony of a party 
 who was made a competent witness by stat- 
 ute, as to prove usury in a contract: Rine- 
 hart V. Buckingham, 34^409. 
 
 c. Gomipetency of husband or wife} 
 
 1092. Where husband and wife are joint 
 defendants, the wife may be called to testify 
 for plaintiff. In such case she is not a wit- 
 ness against her husband, within the mean- 
 ing of this section : Richards v. Burden, 81- 
 305. 
 
 1093. A wife, summoned as garnishee in 
 an action against her husband, is not exempt 
 from answering interrogatories touching her 
 indebtedness to him. The subjection of such 
 indebtedness to the payment of claims against 
 him cannot be regarded as against his inter- 
 ests : Thompscn v. Silvers, 59-670. 
 
 1094. In an action against a wife to sub- 
 ject property conveyed to her by her hus- 
 band to the payment of his debts, the 
 husband is not a competent witness to tes- 
 tify, for the purpose of defeating such con- 
 veyance, that he was insolvent at the time 
 the conveyance was made. There is no war- 
 rant for engrafting upon the statute the rule 
 that the husband may be allowed to testify 
 against his wife if his testimony is against 
 himself also: Stephenson v. Cook, 6^265. 
 
 The husband is entitled to the evidence of 
 his wife in his favor where she is a co- 
 defendant in a criminal prosecution; See 
 Criminal Law, § 1485. 
 
 1095. Within the provisions of the statute 
 above referred to, allowing the husband or 
 wife to be a witness against the other in a 
 criminal proceeding for ^ a crime committed 
 by one against the other, the husband or 
 wife, as the case may be, is a competent wit- 
 ness against the other in a prosecution for 
 adultery: State v. Bennett, Sl-2i; State v. 
 Hazen, 39-648. 
 
 ■ Sec. 3641. Neither the husband nor wife shall in any case be a witness against the otJier, except in a crimi- 
 nal prosecution for a crime committed one against the other, or in a civil action or proceeding one against the 
 other; but they may in all civil and criminal cases be witnesses for each other. 
 
 [The foregoing was, by 15 G. A., ch. 33, substituted for the original section of the Code.J 
 
EVIDENCE, III, 7, c, d. 
 
 721 
 
 Competency of husband or wife. — Privileged communications. 
 
 10!)G. In a prosecution for adultery, the 
 wife is a competent witness to prove the 
 marriage: State v. Hazen, 39-648. 
 
 1007. Also in bigamj"-, which is a crime by 
 the one against the other within the meaning 
 of the statutory provision: State v. Sloan, 
 55-317; State v. Hughes, 58-165. 
 
 lOOS. Under Rev., § 3983, which prohib- 
 ited the husband or wife being witnesses 
 for or against each other, except in criminal 
 cases, held, that this was a privilege which 
 rested with the other party to the mai-riage 
 relation, and might be waived by such party 
 under Rev., § 3986 (present Code, § 3643, last 
 clause), and was not intended for the benefit 
 of the opposite party in the suit: Russ v. 
 Steamboat War Eagle, 14-363 ; Blake v. Graves, 
 18-312 (explaining Karney v. Paisley, 13-89). 
 
 The wife being a competent witness for 
 the husband in a criminal prosecution, it is 
 error to cliarge that her evidence should be 
 received with great caution, or that it should 
 be given but little weight: See Ceiminal 
 Law, §§ 1486, 1487. 
 
 1099. The objection that the wife was a 
 witness against her husband before the grand 
 jury, upon the finding of an indictment^ can- 
 not be raised for the first time after convic- 
 tion upon such indictment : State v. Houston, 
 50-213. 
 
 1100. Testifying for or against herself and 
 the heirs, by a widow, after the death of the 
 husband, is not the same as testifying for or 
 against the husband if alive, nor is her evi- 
 dence as to a conversation had between 
 plaintiff and her liusband inadmissible on the 
 ground of confidential communications be- 
 tween herself and husband: Pratt v. Dela- 
 van, 17-307. 
 
 1101. Objection, when taken: An objec- 
 tion to the husband or wife, when called as a 
 witness against the other, is an objection to 
 the competency of such witness and should 
 be taken at the time when the witness is 
 sworn or it is proposed to examine such wit- 
 ness and not afterward. If the objection is 
 not intei-posed until after the close of the ex- 
 amination, it wiU be deemed waived: Wat- 
 son V. Riskamire, 45-231. 
 
 d. Privileged Gommunications. 
 
 1102. Between husband and wife: A trans- 
 fer of a claim between husband and wife is 
 not a communication between them within 
 the statutory provision (Code, § 3642) making 
 communications between husband and wife 
 privileged : Hanks v. Van Oarder, 59-179. 
 
 1103. Exclamations made by the wife 
 upon the killing of her son by her husband, 
 held not communications between husband 
 and wife within the meaning of this section : 
 State V. Middleham, 63-150. 
 
 1 104. To a physician: i As it may be law- 
 ful, under some circumstances, to produce a 
 miscarriage, a communication by a woman 
 to a physician, in relation to such matter, 
 will be privileged, in the absence of a show- 
 ing that it was not for a lawful purpose : 
 Guptill V. Verback, 58-98. 
 
 1105. Statements by a person injured, as 
 to the cause of the injury, made to the physi- 
 cian called to treat him, in response to a 
 question by the physician as to how the in- 
 jury occurred, are privileged, and cannot be 
 disclosed by the physician to whom they 
 were made: Raymond v. Burlington, C. R. 
 &N. R. Co., 65-153. 
 
 1106. It would manifestly violate the spirit 
 of the statutory provision as to privileged 
 communications to permit a physician to dis- 
 close a communication made in his presence 
 to Ills partner : Ibid. 
 
 1107. Juror not pmileged: The fact that 
 a person has been a juror at a former trial of 
 the case cannot prevent him from giving evi- 
 dence, at a subsequent trial, of facts he ob- 
 served at such former trial : Cramer v. Bur- 
 lington, 42-315. 
 
 As to how far testimony of juror may be 
 I'eceived as to what has transpired in the jury 
 room, see New Trials, gg 182-208. 
 
 1108. Attorney and client: i Statements 
 made in the presence of an attorney wUl not 
 necessarily be considered as privileged com- 
 munications as to wliich he may not testify : 
 Shaffer v. 3Iink, 60-754. 
 
 1109. Although communications between 
 attorney and client may not be testified to 
 
 ^ Code, § 3J4a. No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of 
 any denomination shall be allowed in giving testimony to disclose any confidential commimication properly- 
 intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the func- 
 tions of his office according to the usual course o( practice. Such prohibition shall not apply to cases where 
 the party in whose favor the same are made waives the rights conferred. 
 Vol. 1 — 46 
 
722 
 
 EVIDENCE, III, 7, e, f. 
 
 Competency depending upon capacity. — Particular testimony. 
 
 by the attorney or his clerk, others in whose 
 presence such communications are made are 
 not forbldJen nor excused from testifying as 
 to them : State v. Sterrett, 68-76. 
 
 1110. Previous threats against the life of a 
 party, for whose murder defendant was on 
 trial, made to an attorney whom defendant 
 was consulting in regard to a civil suit against 
 such party, held not to be a privileged com- 
 munication : State v. Meivherfer, 46-88. 
 
 1111. In a garnishment proceeding against 
 an attorney, held, that his relations to his 
 client would not excuse him from answering 
 to whom and under what conditions he had 
 paid over money of his client sought to be 
 reached by the garnishment: Williams v. 
 Young, 46-140. 
 
 1112. A communication 'to one supposed 
 to be an attorney, but who was not such at 
 the time, but was studying and was soon 
 after admitted, held not privileged: Sample 
 V. Frost, 10-366. 
 
 1113. That a person to whom communica- 
 tions were made was an acting magistrate 
 and usually did the business of defendant, 
 and frequently gave him advice and counsel, 
 held not suflOicient to make a communication 
 to such person privileged: Piersonv. Steortz, 
 Mor., 136. 
 
 lll'i. An attorney is competent to testify 
 where it appears that he was not the attorney 
 of the party with reference to any matters 
 about which he testifies, and that no infor- 
 mation respecting such matters was obtained 
 from him through the confidential relation 
 of attorney and client: Beinhart v. John- 
 son, 63-155. 
 
 li 15. A party to a suit, who is also a wit- 
 ness, cannot be called on to state a confiden- 
 tial communication made to his attorney: 
 Barker v. Euhn, 38-393. 
 
 As to evidence of an attorney in general, 
 see Attorneys, VI. 
 
 e. Competency of witness dependiiig 
 npon capacity. 
 
 1116. The statutory provision (Code, 
 g 3636) as to competency of witnesses, re- 
 quiring them to be human beings of suffi- 
 cient capacity to understand the obligation 
 of an oath, is not in conflict with the provis- 
 ion of the constitution, art. 1, § 4, that any 
 
 person not disqualified on account of inter- 
 est may be called as a witness, such a quali- 
 fication being assumed in the constitutional 
 provision : Kilburn v. Mullen, 23-498. 
 
 1117. Where a little girl of less than nine 
 years of age was not allowed to testify, it not 
 appearing what other inquiry was made as to 
 her capacity, the supreme court refused to 
 interfere with the action of the lower court: 
 Ibid. 
 
 i. Competency of particular testimony. 
 
 1118. As to a conversation : The fact that 
 a witness, called to testify as to a conversa- 
 tion, did not hear all of it will not render 
 him incompetent to testify as to what he did 
 liear, but will only go to the credibility of 
 bis testimony : Mays v. Beaver, 1-216. 
 
 1119. A witness may be allowed to testify 
 as to a part of the conversation which he lias 
 heard, although there was a part which he 
 did not hear nor understand : State v. Elliott, 
 15-72. 
 
 1120. The testimony of a witness as to a 
 conversation should not be excluded because 
 he cannot recall the entire conversation: 
 Nash V. Oibson, 16-305. 
 
 1121. A witness who cannot remember 
 the exact words of a conversation to which 
 he is called to testify may give the purport 
 of the conversation and his impressions re- 
 ceived and ideas formed therefrom : State v. 
 Donovan, 61-278; Walker v. Camp, 63-637. 
 
 1122. Sufficiency of witness' knowledge: 
 In an action against a common carrier for 
 damages sustained by goods while in its pos- 
 session, held, that evidence of a witness that 
 he saw a part of the goods when unloaded 
 and that the same were damaged was ad- 
 missible, although he could not testify as to 
 the condition of other portions of the goods : 
 Winne v. Illinois Cent. E. Co., 31-583. 
 
 1 123. Where a wife testified as to her hus- 
 band becoming intoxicated at a certain place, 
 held, that the fact that he brought home_ 
 goods procurable there, and afterwards found 
 charged there to him, was sufficient to war- 
 rant such statement: Eafferty v. Buckimn, 
 46-195. 
 
 1124. As to reputation: While a witness 
 testifying as to reputation must show his 
 competency by showing that he knows what 
 
EVIDENCE, lU, 7, g. 
 
 723 
 
 Credibility. 
 
 that reputation is, still this fact need not ap- 
 pear by any set phrase or in answer to any 
 categorical question. Where it appears that 
 the witness resides in the same neighborhood 
 as the party whose reputation is in question 
 and has l^nown such person since childhood, 
 the competency of the witness to testify as 
 to such reputation is suificiently shown: 
 State V. Deitrick, 51-467 
 
 1125. As to character: Witnesses testify- 
 ing as to the good character of accused may 
 speak of such fact as within their own 
 knowledge and are not confined to testifying 
 as to his general reputation in the com- 
 munity : State v. Cross, 68-180. 
 
 As to evidence of character or reputation 
 of a witness, see infra, §§ 1142-1155. 
 
 As to evidence of chairacter in general, see 
 supra, §§ 73-80. 
 
 1126. As to agency: Where plaintiff 
 sought to establisli the fact that a third per- 
 son was an agent of defendant in the trans- 
 action in question, held, that such third per- 
 son was competent to testify on behalf of 
 defendant in denial of such agency : McFar- 
 land V. Loviry, 40-467. 
 
 Former trial: As to the competency of a 
 witness to testify as to the evidence on a 
 former trial, see supra, §§ 137-140. 
 
 g. Credibility. 
 
 1127. As affected by relig'ious belief: 
 Lack of belief in God, or future conscious 
 existence, does not render a witness incom- 
 petent, nor does it render incompetent a 
 party's dying declaration ; but proof of such 
 fact is admissible to lessen the credibility of 
 his testimony or of such declaration : State v. 
 Elliott, 45-486. 
 
 1128. The fact that a witness does not be- 
 lieve in, a God, and that He will reward or 
 punish us according to our deserts, may be 
 shown as affecting the credibility of the wit- 
 ness, but it is erroneous to confine tlie evi- 
 dence to a belief in future rewards and pun- 
 ishments : Searcy v. Miller, 57-613. 
 
 1129. The facts as to belief are not to be 
 brought out by cross-examination, but by 
 proof of declarations, etc. : Ihid. 
 
 1130. A witness cannot be required to 
 testify to his want of belief in any religious 
 tenet nor to divulge his opinions on matters 
 of religious faith for the purpose of affecting 
 
 his credibility by showing that lie does not 
 believe in a future conscious state of exist- 
 ence : Dedric v. Hopson, 63-562. 
 
 1131. As affected by interest: The statr. 
 utory provision (Code, § 3638; that no person 
 offered as a witness shall be excluded by rea- 
 son of his interest in the event of the action 
 or because he is a party, except as is other- 
 wise provided, would have been broad 
 enough to give defendant in a criminal case 
 the right to testify in his own behalf, had it 
 not been for other statutory provisions limit- 
 ing such right : State v. Gigher, 23-318. (By 
 subsequent statutory provision, 17, G. A., 
 ch. 168, § 1, defendants in criminal cases are 
 now allowed to become witnesses.) 
 
 As to the credibility of defendant in a 
 criminal case as a witness, see Criminal 
 Law, § 1445. 
 
 1132. Under our statute, the interest of a 
 witness does not disqualify him, but can only 
 be shown for the purpose of lessening liis 
 credibility, but the rules relating to the ad- 
 missibility of evidence showing the interest 
 of tlie witness are the same as at common 
 law : Erickson v. Bell, 53-637. 
 
 1133. Therefore, held, in accordance with 
 the rule of the common law, that testimony 
 to establish declarations of a witness, to the 
 effect that he is interested in the event of the 
 suit, is not admissible : Ibid. 
 
 1134. Interest of a witness in behalf of 
 one of the parties sliould be considered as af- 
 fecting his credibility and for no other pur- 
 pose : Holloway v. Grijjith, 33-409. 
 
 113.J. The jury may properly be instructed 
 to consider the interest of a witness, his hopes 
 and fears, etc. ; and in an action against a 
 railway, held, that such instruction was not 
 erroneous as tending to reflect upon the cred- 
 ibility of raih-oad employees: Hatfield v. 
 Chicago, B. I. & P. E. Co., 61-434. 
 
 1136. As affocted by mental condition: 
 Tlie credibility of a witness may be impeached 
 by showing an abnormal condition of the 
 mind, caused by disease or habits whicli im- 
 pair tlie memory : Alleman v. Stepip, 53-636. 
 
 1137. The fact that a witness was under 
 the influence of liquor at the time of the oc- 
 currence with reference to which he testi- 
 fies wUl not destroy the credibility of liis 
 testimony with reference thereto, although 
 it will undoubtedly impair it, and if he is 
 
724 
 
 EVIDENCE, III, 7, g, h. 
 
 Credibility. — Impeachment. 
 
 corroborated as to the occurrences, or his rec- 
 ollection appears distinct and clear, he may 
 be entitled to belief : State v. Castello, 62-404. 
 
 1138. As affected by moral character: 
 The common law rule that the moral char- 
 acter of a witness could not be shown for the 
 purpose of impeaching his credibility, but 
 only his reputation for want of truth and 
 veracity, is changed by statute (Code, § 3649), 
 whidi provides that his general moral char- 
 acter may be proved for the purpose of test- 
 ing his credibility, and, therefore, the general 
 reputation may now be shown, but not the 
 witness' character as known to the impeach- 
 ing witness independent of his reputation: 
 State V. Egan, 59-636. 
 
 1 139. Aside from the statutory provision, 
 the general character of a witness could not 
 be shown for the purpose of impeachment, 
 and the evidence to impeach must be con- 
 fined to the witness' character for veracity 
 to be proven by his general reputation as to 
 Veracity in the community in which he lived, 
 and it was not proper for another witness to 
 give his opinion as to the character of the 
 witness in these respects, nor to testify as to 
 particular facts for the purpose of proving 
 such character: Carter v. Cavenaugh, 1 G. 
 Gr., 171. 
 
 1140. The truthfulness of a witness is 
 always presumed, and evidence is not admis- 
 sible for the purpose of establishing his credi- 
 bility, as, for instance, that he has held public 
 office, etc., where no attempt to impeach 
 him has been made: Walter v. Chicago, D. 
 & M. R. Co., 39-33. 
 
 1141. Suppression of facts: Failure of a 
 party as a witness to give a full and fair 
 statement of matters involved in the issues of 
 the case may be regarded as affecting the 
 credibility of his testimony. Intentional sup- 
 pression of facts is to be regarded in the same 
 light as false statement of facts of like bear- 
 ing: Lee V. Cresco, 47-499. 
 
 Preponderance of evidence, see supra, 
 §§ 830-855. 
 
 Credibility of impeached Tvitnesses, see 
 infra, III, 7, i. 
 
 h. Impeachment. 
 
 As to the impeachment of a defendant in a 
 criminal case who makes himself a witness, 
 see Criminal Law, § 1443. 
 
 1142. Evidence of reputation for truth 
 and veracity: A man's reputation for truth 
 and veracity is what is said of him in the 
 community in which he lives, and the testi- 
 mony should not be limited to what is said of 
 him by persons who deal and associate with 
 h im: Dance v. McBride, 43-634. 
 
 1143. It is improper to admit, as testimony 
 sustaining the character of a witness whom 
 it is sought to impeach, evidence as to what 
 his reputation, etc., is "among the business 
 men with whom he deals:'' Bays v. Herring, 
 51-286. 
 
 1144. It is competent for a witness, whose 
 reputation for general morality and truth ia 
 assailed, to sustain his character by showing 
 that those having the best opportunity of 
 knowing his reputation have heard nothing 
 said respecting his character ; and in a par- 
 ticular case, lield, that although certain lan- 
 guage of the court indicating that evidence of 
 this kind was the best evidence of good repu- 
 tation was eiTOneous, yet that such error was, 
 under the circumstances, without prejudice: 
 State V. Nelson, 58-208. 
 
 1145. It is proper to ask a witness whether 
 he is acquainted with the general moral char- 
 acter of the witness whose character it is 
 sought to impeach, in the vicinity in which 
 he resides. Such question calls for the gen- 
 eral reputation and not the witness' personal 
 knowledge of the defendant's character: 
 State V. Froeliclc, 70 — — . 
 
 1146. Specific vice: Proof of a specific 
 vice, as want of chastity, is not competent 
 for the purpose of discrediting the compe- 
 tency of a witness : Kilburn v. Mullen, 32-498. 
 
 1147. Evidence of particular immoral 
 acts is not admissible. Where evidence is 
 introduced showing the general moral char- 
 acter of the witness to be bad, and .the wit- 
 ness attempts to explain away such bad 
 reputation by showing the circumstances out 
 of which they arose and that such circum- 
 stances were merely equivocal in character 
 and not necessarily inconsistent with his 
 morality, he cannot go further and introduce 
 other testimony to show that he was not 
 guilty of such immorality, but will be con- 
 fined to evidence of his general moral char- 
 acter : State v. Woodworth, 65-141. 
 
 1148. Where the moral character of the 
 witness has been impeached in the usual way, 
 
EVIDENCE, ni, 7, h. 
 
 725 
 
 Impeachment. 
 
 the party offering him cannot destroy the im- 
 peaching evidence upon cross-examination of 
 the impeaching witness by showing that the 
 bad reputation to which he testifies is limited 
 to some paiticular vice. A person cannot be 
 said to have a good moral cliaracter wlien he 
 has a reputation as to any particular vice. 
 The word "general" as used in this section 
 was designed to indicate the mode of proof, 
 and not as implying that a person's general 
 moral character is good, which is bad only in 
 one respect : Ibid, 
 
 1149. Where a witness is called in rebuttal 
 to testify as to plaintiff's general character 
 for honesty, the court may properly receive 
 on cross-examination evidence of specific 
 transactions, or call out declarations of the 
 witness in relation to acts in the plaintiff's 
 life, for the purpose of showing the credit or 
 weight due the testimony. But it is not a 
 legal right, and rests largely in the discretion 
 of the trial court : Little v. Martin, 28-558. 
 
 1150. Proof of general cliaracter: An in- 
 dictment for assault and battery is not proper 
 to be shown in evidence as bearing upon the 
 moral chai'acter of a witness to affect his 
 credibility: Kitteringham v. Dance, 58-632. 
 
 1151. A witness cannot be impeached by 
 asking upon cross-examination if he were 
 not successfully impeached in the trial of 
 another case : State v. Wooderd, 20-541. 
 
 1152. The fact that a witness is shown to 
 have acted dishonestly in view of the facts 
 as he testifies them to have been is not suffi- 
 cient to destroy his evidence: Wilson v. 
 Patrick, 34-362. 
 
 1153. Where a witness had admitted that 
 he had been guilty of horse-stealing, held, 
 not proper to ask him how long he had been 
 engaged therein, as such fact would have no 
 bearing on his moral character: State v. 
 Mclntire, 58-572. 
 
 1151. Held not proper, upon cross-exami- 
 nation of a witness introduced to impeach 
 the character of plaintiff, who had testified 
 on her own behalf, to ask such witness 
 whether plaintiff had not been a very hard- 
 working woman, devoted to business and the 
 rearing of her family, etc. : Herzman v. 
 Oberfelder, 54-83. 
 
 1155. Where a witness who it appeared 
 had known the witness sought to be im- 
 peached, and resided in the town where he 
 
 was raised, testified in response to a proper 
 question that sucli witness' general moral 
 character was bad, held, that the testimony 
 was proper, and it would be presumed that 
 the witness used the word character in tha 
 same sense in which it is used in the statute : 
 State V. Hart, 67-143. 
 
 As to evidence of character, or reputation, 
 see, also, supra, g§ 68-80, 1134, 1125. 
 
 115G. Impeachment of defendant or co- 
 defendant as witness: Where one of two 
 co-defendants is called to testify for the other 
 in a criminal case, he may be impeached as 
 any other witness : State v. Hardin, 46-623. 
 
 1 157. Where defendant in a criminal pros- 
 ecution becomes a witness in his own behalf, 
 evidence tending to show that his moral 
 character is bad is admissible, as in the case 
 of any other witness: State v. Kirhpatriok, 
 63-554. 
 
 1158. The number of witnesses to be 
 called for the purpose of impeaching the same 
 witness may be limited by the court : Bays 
 V. Herring, 51-286 ; Bays v. Hunt, 60-251. 
 
 And as to limiting number of witnesses 
 generally, see infra, g§ 1266-1268. 
 
 1159. Proof of contradictory statements : 
 The fact that a witness has made statements 
 on other occasions at variance with those 
 made at the trial may be shown for the pur- 
 pose of impeaching him if his attention is 
 called to the time and place and the proper 
 foundation is thus laid : Glenn v. Carson, 3 
 G. Gr., 529. 
 
 1160. A witness maybe cross-examined as 
 to statements in a conversation with a par- 
 ticular person named, at a particular time 
 and place, and relating to the subject-matter 
 of his testimony in chief, for the purpose of 
 laying the foundation for impeachment, and 
 showing that he has made statements outside 
 of court contrary to what he testifies to at 
 the trial : Nelson v. Chicago, B. I. cfc P. R. 
 Co., 38-564. 
 
 1161. Liijing foundation for impeacli- 
 ment : Where it is sought to impeach a witness 
 by proving statements or declarations pre- 
 viously made by him inconsistent with his tes- 
 timony, he must first be asked whether he 
 ever made such statements, and his attention 
 must be called to the time and place where 
 and the person to whom the statements 
 inquired about were claimed to have been 
 
726 
 
 EVIDENCE, III, 7, h. 
 
 Impeachment. 
 
 matle: Strunlc v, Ochiltree, 15-179; State 
 V. Kinley, 43-394; State v. McLaughlin, 
 
 44r-83. 
 
 1102. The declarations of a person not a 
 party to the record are admissible only for 
 the purpose of impeachment, and before such 
 declarations can be received in evidence, the 
 attention of the witness must have been 
 directed to the time, place and circumstances : 
 State V. Hamilton, 33-573. 
 
 11C3. Whilst declarations out of court of 
 a party to the record may be introduced as 
 an admission of a fact, }'et, in order that such 
 declarations may operate as an impeachment 
 of his character as a witness, his attention 
 must be directed to the time, place and per- 
 son involved in the supposed contradiction : 
 Conivay v. Kicol, 34-538. 
 
 llo4. In a particular case, where a witness 
 was asked, on cross-examination, if he hud 
 not made certain statements, held, that, in 
 view of the answer made and the fact that 
 the subject was not further pursued, the fail- 
 ure to exclude the question because not in 
 proper form was not prejudicial error: 
 McOowen v. Myers, 60-356. 
 
 11G5. Foundation for introduction ol 
 wri'iing' to impeach: In order that a letter 
 may be received for the purpose of impeach- 
 ing the testim.ony of a witness by showing 
 statements th' rein inconsistent with his state- 
 ments on the stand, it is necessary not only 
 that the letter be shown to him and that he 
 admit the handwriting and signatui-e, but he 
 must be. allowed to read the same or have his 
 attention called to that part which it is 
 claimed is in conflict with his testimony on 
 the stand, so as to give him an opportunity 
 to explain it: Morrison v. Myers, 11-538. 
 
 1160. It is not proper to call witness' at- 
 tention to the signature of a letter and ask 
 whether it is his signature and then ask him 
 whether certain statements are contained 
 therein. He should not be asked whether he 
 wrote a letter with certain contents without 
 being first shown the letter itself. The letter 
 is the bast evidence of its contents : Olenn v. 
 Gleason, 61-38. 
 
 1107. Where it is sought to impeach a 
 witness by a paper written by liim, the paper 
 must be shown to him and he must be asked 
 if he wrote it : Peck v. Parchen, 53-46. 
 
 1168. It is not proper to ask a witness what 
 
 he thought he made oath to in a certain 
 writing as foundation for impeachment. 
 The correct practice is to show the witness 
 the paper and then ask him if he made oath 
 to it : Callanan v. Shaw, 34-441. 
 
 1109. Explanation: Where, for the pur- 
 pose of impeachment, the attention of a 
 witness was called, on cross-examination, to 
 a communication furnished by him to a 
 newspaper, held, that he was properly al- 
 lowed to explain the circumstances under 
 which it was written : Smith v. Weeks, 54- 
 411. 
 
 1170. Proof of contradictory statements 
 in depositions: The rule that before a wit- 
 ness can be discredited by proof of former 
 conflicting statements, he must be asked 
 about them and given an opportunity to ex- 
 plain, applies to impeachment by means of 
 other depositions of the witness : Samuels v. 
 Griffith, 13-103 ; State v. Shannehan, 23-435. 
 
 1171. In a particular case, where two dep- 
 ositions were admitted of the same party 
 and the first suppressed for informality, held, 
 that a reference to the first in the second, and 
 the statement that the answers in the first 
 were coi-rectly written out, did not obviate 
 the necessity of calling the witness' atten- 
 tion to such statements, before reading such 
 deposition, for the purpose of impeaching the 
 testimony of the witness given in the second: 
 Samuels v. Griffith, 13-103. 
 
 1172. Th« fact that the deposition of a 
 witness was read for the purpose of impeach- 
 ing his testimony given on the stand with- 
 out having first given him an opportunity to 
 examine the deposition and explain his testi- 
 mony therein, held not error, where the 
 witness was immediately further examined 
 and had full opportunity of explanation: 
 Johnson v. Chicago, JR. I. & P. JR. Co., 58- 
 348. 
 
 1173. Where, in cross-interrogatories pro- 
 pounded to a witness whose deposition was 
 to be taken on commission, he was asked 
 whether he had not committed a crime in 
 connection with tlie subject-matter of the 
 suit, and such cross-interrogatories were not 
 answered, held, that the party propounding 
 them had no right to have them read and 
 the fact that they were not answered brought 
 to the attention of the jury: Slocum v. 
 Knosby, 70 . 
 
EVIDENCE, III, 7, h. 
 
 727 
 
 Impeaohment. 
 
 1174. Other similar cases: So where, for 
 the purpose of defeating a continuance asked 
 on account of tlie absence of a witness, the 
 opposite party admitted that the witness if 
 present would testify to the matter set out in 
 the application for continuance, held, tliat 
 statements made by such witness out of 
 court in conflict with the statement of his 
 testimony given in the application for con- 
 tinuance could not be shown by way of 
 impeaohment, there being no foundation 
 laid therefor: State v. Shannehan, 22-435; 
 Williamson v. Peel, 29-458. 
 
 1 1 75. Where it is sought to impeach' a 
 witness by proof of conflicting statements in 
 the evidence given on a preliminary exami- 
 nation, his attention must be drawn to the 
 time, place and person involved in the sup- 
 posed contradiction, and without such foun- 
 dation being laid, the minutes of his testi- 
 mony on such examination cannot be received 
 for the purpose of impeachment ■.-State v. 
 Collinfi, 33-36. 
 
 117(5. RGCillingtolayfoniidntinn: While 
 a witness cannot, after the close of his cross- 
 examination, be recalled by the party cross- 
 examining for the purpose of asking him a 
 question on which to impeach him, yet 
 where the cross-examination of witnesses 
 had been irregular, held, that the testimony 
 of the witness when recalled might be con- 
 sidered as a continuance of his cross-exam- 
 ination: Ross i\ Hayne, 3 G-. Gr., 211. 
 
 1177. A party may not in all cases, if he 
 may in any, recall a witness who has before 
 testified, for the purpose of laying a founda- 
 tion for Impeachment by contradicting his 
 testimony : Peschongs v. Mueller, 50-237. 
 
 1178. The question whether a witness may 
 be recalled for this purpose is one peculiarly 
 within the discretion of the trial court : Huff 
 V. Aultman, 69-71. 
 
 117!). Where evidence was introduced of 
 statements, made by plaintiff suing for serv- 
 ices rendered as a physician, tending to im- 
 peach plaintiff, and also show a lack of skill 
 on hia part, held, that plaintilf should have 
 been allowed to be recalled as a witness to 
 explain to what he referred in the state- 
 ments charged^ to have been made by him 
 and the sense in which he used the terms 
 therein employed: Robinson v. Campbell, 
 47-030. 
 
 1180. Matter of opinion: Where a wit- 
 ness testifies as an expert as to a matter of 
 opinion, he may be impeached by a showing 
 that on a former action he expressed a difller- 
 ent opinion : Miller v. Mutual Benefit L. Ins. 
 Co., 31-216. 
 
 1181. But it is not competent to impeach 
 the testimony of a witness as to facts stated 
 in the testimony by proving statements by 
 him of his opinion as to such facts : State v. 
 Maxwell, 42-208. 
 
 1182. Declarations made soon after the 
 event in issue occurred, as well as opinions 
 or impressions formed from such conversa- 
 tions, are not admissible to strengthen the 
 testimony of a witness where it is not 
 claimed that the relationship of the witness 
 to the case or the parties interested discredits 
 him, or that he designedly makes false state- 
 ments on account of such relationship, and 
 the object is to show that the declarations 
 were made 'before such relations existed: 
 Boyd V. First Nat. Bank, 25-255. 
 
 1183. Collateral or inimatfirlal matters: 
 The law does not permit a witness to be in- 
 terrogated upon a collateral matter merely 
 for the purpose of contradicting his state- 
 ment thereon: Wau-kon-chaw-neek-kaw v. 
 United States, Mor., 332. 
 
 1184. A witness cannot be impeached upon 
 an immaterial matter: State v. Maocivell, 43- 
 308; Williams v. Niagara Ins. Co., 50-561. 
 
 1185. A witness cannot be examined as to 
 any matter which is collateral and irrelevant, 
 merely for the purpose of contradicting him 
 by other evidence: Peck v. Parchen, 53-46. 
 
 118(5. It is only as to matters which are 
 relevant that a witness can be contradicted 
 for the purpose of impeaohment: Clark v. 
 Reiniger, 66-507; Eikenherry v. Edwards, 
 67-14. 
 
 As to contradicting answers on cross-exam- 
 ination with reference to irrelevant and im- 
 material matters, see infra, §§ 1333-1326. 
 
 1187. Bill of exceptions and mlnntes of 
 evidence for the purpose of impeacliment: 
 A bill of exceptions prepared on a former 
 trial is not admissible to impeach a witness 
 whose evidence is claimed to be embraced 
 therein, by contradicting him at a subsequent 
 trial : Boyd v. First Nat. Bank, 35-255. 
 
 1188. Minutes of evidence before a grand 
 jury or on preliminary examination are not 
 
728 
 
 EVIDENCE, m, 7, h. 
 
 Impeachment. 
 
 admissible for the purpose of impeachment : 
 State V. Hay den, 45-11. 
 
 1189. Whether, with proper identification, 
 the testimony of a witness upon a former 
 trial taken by a shorthand reporter, and 
 which is properly made part of the record, 
 can be introduced as impeaching evidence, 
 quaere. Under particular facts, held, that 
 the testimony was not suflSciently identified 
 to be so used : Case v. B-urrows, 54-679. 
 
 1190. P.arty cannot impeach his own 
 witness: Where a party voluntarily calls a 
 witness to testify in his own behalf, he is 
 thereby estopped from assailing the truth 
 and veracity of the witness, but he is not 
 precluded from showing that the facts are 
 otherwise than as testified to by his witness, 
 even in direct contradiction to the testimony 
 of such witness : Thorn v. Moore, 21-385 ; 
 Clapp V. Peck, 55-270. 
 
 1191. A party cannot impeach his own 
 witness, but he may make the requisite in- 
 quiries for the purpose of aiding the witness 
 to recollect and testify to the truth: Humble 
 V. Shoemaker, 70 . 
 
 1192. A party is not bound absolutely by 
 what the witness introduced by him' states. 
 He can show a different state of facts by an- 
 other witness ; he may, if taken by surprise, 
 ask his witness if he has not stated differently 
 to the party or his counsel: Ibid. 
 
 1193. Where a witness on direct examina- 
 tion gave no testimony to the benefit of either 
 pai-ty, but on cross-examination testified to a 
 new matter adverse to the party calling him, 
 held, that such party was not precluded from 
 contradicting him in this respect by other 
 testimony, and that as to such matter he 
 was to be treated as the witness of the party 
 cross-examining: Artz v. Chicago, R. I. & 
 P. R. Co., 44-284. 
 
 1194. Where one pai-ty makes the other 
 party his witness, he cannot be heard to say 
 that such witness is unworthy of belief: 
 Hunt V. Hoover, 34^77. 
 
 1195. It is not competent for a party to in- 
 troduce testimony to contradict admissions 
 made by himself as a witness : Hinkson v. 
 Morrison, 47-167. 
 
 1198. The rule that a party calling a wit- 
 ness is not thereby estopped from proving 
 the truth of any particular fact by any other 
 competent testimony in direct contradiction 
 
 to what such witness has testified is appli- 
 cable in case of written instruments: Dmiy- 
 dell V. Wilcox, 58-199. 
 
 1197. Where the prosecution in a criminal 
 case introduced proof of certain testimony 
 given by defendant on a former trial, held, 
 that it was not bound by such testimony as 
 proved : State v. Lucas, 57-501. 
 
 1198. Proof of motives or feelings: The 
 rule that, before impeaching a witness by 
 proof of declarations inconsistent with his 
 testimony, his attention must have been 
 called to such declarations, is not applicable 
 where he has testified as to the absence of 
 enmity and ill-will in the commission of the 
 assault, and it is then proposed to prove his 
 declarations indicating a different state of 
 feelings : Lucas v. Flinn, 35-9. 
 
 1199. In showing the bias of a witness the 
 party against whom he has testified is limited 
 to a cross-examination, and cannot introduce 
 other evidence of statements made by the 
 witness, not having the effect of contradict- 
 ing anything which he has testified to in his 
 examination in cliief or bearing on any issue 
 raised in the case: State v. Townsend, 66- 
 741. 
 
 1 200. The right to make inquiry as to the 
 motive of a witness is within the discretion 
 of the court, depending upon whether he ap- 
 pears to be a willing witness or not; and 
 where it is not shown that the discretion has 
 been abused, the action of the lower court 
 wiU not be interfered with on appeal : Devine 
 V. State, 4rA4S. 
 
 1201. It is not proper for defendant on 
 cross-examination to ask plaintiff's witness 
 whether he has received an^ communication 
 from citizens requesting him or urging him 
 to attend at the trial, it appearing that he 
 has attended from a distance, beyond the 
 state : State v. Beinhartz, 69-224. 
 
 1202. Held, also, that it was not error to 
 refuse to require the witness to state whether 
 he had received communications from citi- 
 zens holding out to him special inducements 
 to come, it already appearing that there was 
 no arrangement for additional compensation 
 or other pecuniary consideration : Ibid. 
 
 1203. Impe.iching evidence not to be 
 considered for any other purpose: Although 
 statements made by a witness, when not 
 under oath, may be admitted on the trial to 
 
KVIDENCE, III, 7, i. 
 
 729 
 
 Credibility of interested or discredited witness. 
 
 impeach the testimony of such witness, when 
 given on oath, relative to the same subject- 
 matter, still, in the absence of any other evi- 
 dence, direct or circumstantial, to sustain 
 such statements, they will be disregarded, 
 and the statement taken under legal provis- 
 ions sanctioned by oath must prevail : Bur- 
 rows V. Ooodhue, 1 G. Gr., 48. 
 
 1204. Testimony which is admissible for 
 the purpose of impeachment of a witness 
 cannot be introduced or relied upon by the 
 party who has introduced such witness : Cor- 
 Un V. Reed, 43-459. 
 
 i. Credibility of interested or discred- 
 ited witness. 
 
 1205. Not to be entirely rejected: Mat- 
 ters which affect the credibility of evidence 
 are not grounds for its entire rejection : State 
 V. Porter, 34-131. 
 
 120(>. Jury, .i'ltlges of credibility: While 
 it is true that the jury must judge of the 
 credibility of witnesses, they must, in doing 
 so, exercise judgment aided by the rules for 
 discovering truth and not merely their own 
 will or discretion : State v. Fowler, 5^-103. 
 
 1207. An instruction as to the rules to 
 govern the jury in regard to the credibility of 
 witnesses, held correct in a particular case : 
 Little V. McGuire, 43-447. 
 
 1208. Falsity as to one fact: The fact 
 that a witness has sworn falsely as to one 
 material fact ought to cast suspicion upon 
 the rest of his evidence, but if the jury is 
 satisfied that he has sworn to the truth with 
 reference to other material facts, his evi- 
 dence should not be disregarded: McCrary 
 V. Crandall, 1-117. 
 
 1209. Where it was found that the wit- 
 ness had testified falsely as to one matter, 
 
 . hdd, that his credibility was thereby greatly 
 impaired upon other points: Sweney v. 
 Davidson. 68-386. 
 
 1210. The maxim, falsus in uno, falsus in 
 omnibus, is applied only in cases where the 
 witness wilfully and knowingly gives false 
 testimony. If the witness from want of in- 
 telligence or otherwise is incompetent, the 
 court will not permit him to testify, but 
 when he does testify, all questions of credi- 
 bility are for the jury alone, and in weigh- 
 ing his testimony, they may consider the 
 
 1 
 
 manner of the witness in testifying and his 
 demeanor, conduct and appearance before 
 them. The evidence of a witness, who is 
 not credible, if corroborated and reasonable, 
 or of a witness who testifies falsely, unless 
 knowingly and wilfully false, ought not to 
 be disregarded : Callanan v. Shaw, 24-441. 
 
 1211. It is not coiTect to instruct the jury 
 that testimony of an impeached witness is 
 entitled to weight and credibility only on 
 those jjoints on which he is corroborated. He 
 may testify so consistently and deport himself 
 in such a manner and be so corroborated in 
 material facts that the jury might feel justi- 
 fied in believing him on some points on which 
 he is not corroborated: Green v. Cochran, 
 43-544. 
 
 1212. An instruction that, if the jury be- 
 lieve a witness knowingly and intentionally 
 testifies falsely to a material fact, all his tes- 
 timony may be disregarded, is not erroneous, 
 and it is not necessary that the jury be satis- 
 fied of the falsity of his testimony beyond a 
 reasonable doubt. From such an instruction 
 the jury would not find that, if corroborated, 
 the part of the testimony not shown to be 
 false would be regarded as wholly valueless : 
 State V. Wells, 46-662. 
 
 1213. Perjury not presumed: The court 
 will hardly be justified in believing that any 
 witness commits perjury, if his testimony 
 can be reconciled by any reasonable explana- 
 tion : Warder v. Pattee, 57-515. 
 
 1214. Effect of interest: The fact that a 
 witness is interested in the result of a suit 
 will not warrant the jury in disregarding his 
 evidence entirely, where it is not corrobo- 
 rated : Woodward v. Squires, 39-435. 
 
 1215. Where the evidence of a party in 
 interest is contradicted by that of a party 
 who has no interest in the action, it is for the 
 jury to determine from all the circumstances 
 which is entitled to the most credit : Brovyn 
 V. Jefferson County, 16-339. 
 
 1216. An instruction that " when two wit- 
 nesses swear differently and one is a disin- 
 terested witness and the other a party to the 
 suit, then, other things being equal, the evi- 
 dence of the disinterested witness should 
 prevail over that of the party to the suit," 
 held not to be approved : Sullivan' v. Collins, 
 18-228. 
 
 1217. An instruction to the effect that the 
 
Y30 
 
 EVIDENCE, III, 7, i. 
 
 Credibility of interested or discredited witness. 
 
 testimony of witnesses having no interest in 
 the event of the suit, if otherwise of equal 
 credibility, is entitled to more weight than 
 the testimony of int^ested witnesses, held 
 not erroneous, though of doubtful propriety : 
 Bonnell v. Smith, 53-281. 
 
 1218. Testimony of impeached witness: 
 It is not for the court to say that the evidence 
 of a witness whose character the opposite 
 party has sought to impeach shall be disre- 
 garded. That question is for the jury : State 
 V. Mylor, 40-193. 
 
 1219. Where it is shown that the reputa- 
 tion of a witness for truth is bad, his evi- 
 dence is not necessarily destroye J, but is to 
 be considered under all the circumstances 
 and given such weight as the jury believe it 
 entitled to, and disregarded if believed to be 
 entitled to no weight : State v. Miller, 53-209. 
 
 1220. Every witness is presumed in the 
 outset to be truthful. If impeaching evi- 
 dence is introduced and evidence in rebuttal 
 of the impeaching evidence, the jury must 
 consider whether they still consider the wit- 
 ness to be a truthful person, and the belief 
 of each juryman in this respect will deter- 
 mine whether, in his judgment, the witness 
 has been successfully impeached or not : State 
 V. Ormiston, 66-143. 
 
 1221. Effect of proof of contradictory 
 statements: It is error to instruct the jury 
 that ' 'a ■Vvitness whose statements out of court 
 have been proven to be different from those 
 made in court under oath is not entitled to 
 much credit as a witness." Whether he is 
 entitled to much credit or not must depend 
 upon circumstances, and the jurors must be 
 the sole judges on that question : Barr v. 
 Hack, 46-808. 
 
 1222. It is for the jury to determine what 
 effect they shall give to statements of a wit- 
 ness proven for the purpose of impeaching 
 him, in view of the circumstances under 
 which such statements were made, and it is 
 error to instruct them as to the effect or con- 
 sequences of their findings as to the circum- 
 stances : State v. Johnagen, 53-250. 
 
 1223. CoiTObnration: The doubt thrown 
 upon the credibility of a witness by proof of 
 bad moral character may be removed by cor- 
 roborating'evidence ; Snediker v. Poorbaugh, 
 S9-488. 
 
 1224. Even though the witness is discred- 
 
 ited, his testimony may be corroborated in 
 such a way that it cannot be disregarded: 
 Wilson V. Patrick, 34^363. 
 
 1225. If tlie jury is satisfied that the wit- 
 ness speaks the truth as to matters in which 
 he is coiToborated by unimpcaohed witnesses, 
 this will be ground for giving him credit in 
 matters in which there is no corroboration: 
 State V. Bixby, 39-465. 
 
 1226. Where the credibility of a witness is 
 impeached by direct testimony of his want of 
 reputation for truth, or of his general moral 
 character, or by proof of his having made and 
 testified to conflicting statements, he can- 
 not be supported by evidence that statements 
 of facts made by him before the trial corre- 
 spond with his evidence. But the following 
 are exceptions to the rule : If the witness is 
 charged with a design to misrepresent, on ac- 
 count of his changed relation to the parties 
 or the cause, evidence of like statements be- 
 fore his change of relation may be admitted. 
 So, if it is attempted to be shown that the 
 evidence is a recent fabrication, or when 
 long silence concerning an injury is construed 
 against the injured party, it is proper to 
 show that the witness made similar state- 
 ments soon after the transaction in question: 
 State V. Vincent, 24-570. 
 
 1227. Where a witness had, in different 
 causes, given contradictory evidence, held, 
 that proof of statements made about the time 
 of giving the first evidence, and explaining the 
 reason for giving it, were sufficient to corrob- 
 orate the true evidence subsequently given: 
 Green v. Cochran, 43-544. 
 
 1228. The general rule is that evidence of 
 what a witness has said out of court is not 
 admissible to corroborate or fortify his testi- 
 mony, and while it is sometimes held that 
 when an attempt is made to discredit a wit- 
 ness on the ground that he was influenced in 
 giving his testimony by some motive prompt- 
 ing him to give a false or colored statement, 
 it may be shown that he made the same 
 statement when the contributory motive did 
 not exist, yet when there is simply conflict- 
 ing evidence as to the matters testified to by 
 the witness, the fact that such witness at a 
 previous time out of court made the same 
 statements with reference to such matters 
 is not admissible : Rhutasel v. Stephens, 6^ 
 627. 
 
EVIDENCE, III, 8, a. 
 
 731 
 
 Order and method of introduction. 
 
 8. Order cmd metJiod of introduction. 
 
 a. Introduction. 
 
 How introduced in equitable proceedings, 
 see Practice, II, d. 
 
 1229. In conilict ivitli stipulations: 
 
 Wiiere upon tlie trial a party sought to ijitro- 
 duce evidence in conti-avontion of a .stipula- 
 tion in writing as lo particular facts, vvljicli 
 was duly signed and filod iu the case, UiAd, 
 that such evidence was properly refused: 
 Van Horn v. Burlington, C. M. &N. R. Co., 
 69-239. 
 
 1230. Order discretionary: The order in 
 which tlie proof of facts shall be received is 
 in the sound discretion of the court : Cannon 
 V. Iowa City, 34-303 ; Woolheather v. Risley, 
 38-486; Carman v. Roennan,i5-lZa; Dujfees 
 V. Judd, 48-256; State v. Fry, 67-475. 
 
 1231. And in the absence of any proof of 
 prejudice to the appellant or of abuse of dis- 
 cretion by the court, the supreme court will 
 
 •not feel justified in interfering, on appeal, 
 with the exercise of such discretion : Pearson 
 V. South, 61-333. 
 
 1232. A decision of the court in such mat- 
 ter will not be overruled on appeal, unless 
 manifest abuse of such discretion is shown : 
 Samuels v. Griffith, 13-103; Donaldson v. 
 Mississippi & M. R. Co., 18-280. 
 
 1233. The supreme court will not be justi- 
 fied in interfering with the exercise of this 
 discretion by the lower court, unless in a 
 clear case of its abuse, even where it is exer- 
 cised in excluding evidence which is not 
 strictly rebutting in its character, after the 
 original case for that party has been closed : 
 Boats V. Shields, 35-331. 
 
 1234. It is within the discretion of the 
 court to permit a witness at any time during 
 the trial to correct the evidence previously 
 given. If the opposite party is taken by sur- 
 
 ' prise and he is unable to controvert the new 
 evidence, because of the absence of witnesses, 
 he should at least apply for a continuance : 
 Miller v. Hartford F. Ins. Co., 70 . 
 
 1235. Out of regular order: In the exer- 
 cise of its discretion, and in accordance with 
 common practice, the court may admit testi- 
 mony the relevancy or competency of which 
 is not at the time apparent, on the promise of 
 the party offering it, and with the under- 
 standing that he will introduce other testi- 
 
 mony by which its competency or relevancy 
 sliall become apparent, and that otherwise it 
 shall be ruled out ; but the court may, in its 
 discretion, require the evidence to be intro- 
 duced in its proper order: Rutledgev. Evans, 
 ll-~87; Cramer V. Burlington, 42-315. 
 
 1236. Wliero the pleadings of defendant 
 alleged tliat ho had fully complied with the 
 conditions of a title bond, which he offered 
 in cvidonco, held, that an objection to the 
 introduction of such bond offered in evidence 
 because defendant had showed no title or in- 
 terest therein, was propei'ly overruled, de- 
 fendant being permitted first to introduce the 
 bond and then to show his title and interest 
 in it : Van Orman v. Spafford, 16-186. 
 
 1237.. The record in another case maybe 
 introduced in evidence to prove a prior ad- 
 judication without previous proof that the 
 former action was between the same parties 
 or involved the same rights. Those facts 
 might be established by evidence afterwards: 
 SearJe v. Richardson, 67-170. 
 
 l'2:is. It is not error to admit secondary 
 evidence of an instrument claimed to be lost 
 before there is evidence autliorizing the in- 
 troduction of such secondary evidence, if 
 afterwards facts are shown in the testimony 
 of either party rendering the introduction 
 of such secondary evidence proper: CooJs 
 Mfg. Co. V. Randall, 63-244. 
 
 1239. "Where it is sought to prove by parol 
 evider,ce a sale which is taken out of the 
 statute of frauds by part performance, evi- 
 dence of the sale may be first introduced, to 
 be followed by proof of part performance: 
 Campbell r\ Ormsby, 65-518. 
 
 That a written instrument may be intro- 
 duced before proof of signature thereof is 
 made, see supra, %^ 603, 603. 
 
 1240. Additional evidence in cMof after 
 party has rested: The entire subject of the 
 examination of witnesses and the order of 
 production Of testimony rests very largely in 
 the discretion of the judge trying the cause, 
 and it is within his discretion, in the further- 
 ance of justice, to admit new testimony on 
 the part of the afSrmative after the testimony 
 on the part of the negative has been closed : 
 Hubbell V. Ream, 31-289. 
 
 1241. Unless an abuse of discretion is 
 shown, the action of the court in allowing 
 the plaintiff on rebuttal to introduce evidence 
 
EVIDENCE, III, 8, a. 
 
 Order and method of introduction. 
 
 ■which is not strictly rebutting, furnishes no 
 ground of reversal: Hess v. Wilcox, 58-380. 
 
 1242. So where defendant, under the al- 
 legations of his answer, introduced testimony 
 upon a point as to which the burden of proof 
 ■was properly upon plaintiff under the plead- 
 ing, held, that it was not error in the court 
 to then allow plaintiff to introduce adverse 
 evidence, although it was not in rebuttal: 
 Crane v. Ellis, 31-510. 
 
 124.3. Although the njatter of the order of 
 introducing evidence is largely in the discre- 
 tion of the court, yet where evidence was al- 
 lowed out of its proper order and the court 
 refused to allow additional evidence in re- 
 buttal, held, that there was such error as to 
 require reversal : McDonald v. Moore, 65-171. 
 
 1244. Testimony offered merely for the pur- 
 pose of corroborating a witness may properly 
 be excluded until the testimony of the wit- 
 ness has been impeached: State v. Rora- 
 bacher, 19-154. 
 
 Further as to rebuttal, see infra, §§ 1337- 
 1348. 
 
 1245. Additional evidence after evidence 
 is closed: The admission of testimony after 
 both sides have rested their case is so much 
 a question of discretion that it will not be in- 
 terfered with on appeal without a showing 
 of abuse of discretion or prejudice to ajspel- 
 lant: Tisdale v. Connecticut Mut. L. Ins. Co., 
 28-13. 
 
 1246. The court may in its discretion al- 
 low the introduction of additional evidence 
 after the evidence has been closed and the 
 arguments of counsel have been made: 
 Darlandv. Rosencrans, 56-122. 
 
 1247. It is the common practice in trial 
 courts to permit parties to introduce material 
 evidence at any time before the verdict, 
 which has been omitted by mistake or inad- 
 vertence: Meadows v. Hawkeye Ins. Co., 
 67-57. 
 
 1248. Under statutory provision (Code, 
 § 2799), that at any time before the case is 
 finally submitted a party may be permitted 
 to give further testimony to correct an evi- 
 dent oversight or mistake, held, that it was 
 in the discretion of the court to allow a party 
 to introduce testimony as to a certain point 
 claimed to have been omitted by oversight, 
 although the case had been partially argued 
 to the jury ; MoManus v. Finan, 4-283. 
 
 1249. So lield, also, where a party was al- 
 lowed to introduce evidence after the con- 
 clusion of the argument of one of the counsel 
 for the opposite party : McCormich v. Bol- 
 brook, 22-487. 
 
 1250. But held, in a particular case, that 
 the refusal of the court to allow defendant 
 to introduce additional evidence after the 
 opening argument in the case had been 
 made was not sufficient gi-ound for reversal, 
 it not appeai-ing that the court's discretion 
 had been abused : Kemererv. Bournes, 53-173. 
 
 1251. This statutory provision is applicable 
 to a case where a witness is by accidental 
 delay prevented from reaching the place of 
 trial in time for the introduction of his testi- 
 mony at the proper time : Smith v. State Ins. 
 Co., 58-487. 
 
 1252. Even if the power of the court 
 under this provision is discretionai-y, the 
 abuse of such discretion in refusing to admit 
 testimony in a proper case, will be gi'ound 
 for reversal : Ibid. 
 
 1253. In a case ti'i«d in equity upon 
 depositions, held, that the party should be al- 
 lowed, after the announcement of the de- 
 cision of the court and before entry of 
 judgment, to introduce oral evidence to cor- 
 rect a misstatement in the witness' deposi- 
 tion : Eggsjneller v. Nockles, 58-649. 
 
 1254. Courts may receive evidence out of 
 its regular order in other cases than those 
 where there is surprise or where it is neces- 
 sai-y in order to promote justice: Huey v. 
 Huey, 26-525. 
 
 1255. Where plaintiff had omitted to prove 
 title necessary to make out his case. Mid not 
 error to allow him to introduce proof thereof 
 after the evidence had been closed : McNich- 
 ols V. Wilson, 42-385. 
 
 1256. Where an issue is finally submitted 
 to the court and determined, it is too late 
 afterwards to introduce additional evidence . 
 tearing thereon: Byington v. Moore, 62-470. 
 
 1257. Recalling witness: Although the 
 statutory provision relates only to civil cases, 
 yet in criminal cases also, under some cir- 
 cumstances and for some purposes, a witness 
 may be recalled after the evidence is closed, 
 and in the absence of a showing to the con- 
 trary it will be presumed that he was prop- 
 erly recalled: State v. Shean, 33-88. 
 
 1258. The pri-vilege of recalling a witness 
 
EVIDENCE, III, 8, a, b, o. 
 
 Y33 
 
 Introduction. — Number of witnesses. — Examination. 
 
 to re-examine him upon the same subject- 
 matter, for the purpose of explaining an ap- 
 parent contradiction, is a matter within the 
 discretion of the court : State v. Rordbacher, 
 19-154. 
 
 1259. Evidence to rebut counter-claim : 
 After defendant has introduced proof to es- 
 tablish a set-off, plaintiff should be allowed to 
 introduce evidence to show that defendant's 
 claim has been paid. He is not called upon 
 to introduce such evidence until after de- 
 fendant has introduced the evidence on his 
 part : lAike v. Bruner, 15-3. 
 
 12G0. Preliminary statement: The intro- 
 duction of evidence is not to be precluded by 
 the statement of the case to the jury by the 
 attorney in opening. Admissions thus made 
 are not binding on the party: Frederick v. 
 Gaston, 1 G. Gr., 401. 
 
 1201. Introduction of written evidence: 
 Where a case was being tried on the written 
 report of evidence offered on a former trial, 
 held, that a party might on his own motion 
 withdraw or withhold a portion of the evi- 
 dence offered by himself on such trial : Hen- 
 derson V. Chicago, R. I. & P. R. Co., 48-216. 
 
 That a party may withhold all or a por- 
 tion of depositions taken by him, see supra, 
 §§'982-988. 
 
 1202. Introdnction of record: It is not 
 necessary to constitute a full introduction of 
 the record in evidence that it be actually 
 handed to the jury : Fabian v. Davis, 5-456. 
 
 1263. Where a written instrument is of- 
 fered in evidence and no objection is made 
 thereto, it is to be regarded as introduced : 
 Stephens V. Pence, 56-257. 
 
 1264. Where a party made an oral state- 
 ment that he offered a certain copy of a booli 
 in evidence, but did not file it in the case nor 
 produce it on the trial, held, that it could not 
 be considered as a part of the evidence re- 
 ceived, and that the right to a trial de novo 
 on appeal could not be defeated by the fact 
 that the record did not contain such copy : 
 Palo Alto County v. Harrison, 68-81. 
 
 1205. Inspection of instrinneiit: When 
 a note is introduced in evidence the opposite 
 party has a right to inspect the same, but if, 
 taking advantage of such temporary posses- 
 sion, he fails to return it or puts it out of his 
 power to return it, a copy may be introduced 
 and used : Salman v. Cobb, 4-534. 
 
 b. Nuiriber of witnesses. 
 
 1266. The trial court is authorized to ex- 
 ercise a discretion as to the number of wit- 
 nesses that shall be introduced to a particular 
 point or to establish any particular fact: 
 Kesee v. Chicago & N. W. R. Co., 30-78; 
 Bays V. Herring, 51-286 ; Bays v. Hunt, 60- 
 251. 
 
 1267. Where the court, in advance, in- 
 formed the respective parties that the number 
 of witnesses as to a particular point (the 
 value of property in an appeal from an as- 
 sessment for damages for right of way) 
 would be limited to five on each side, TieZd, 
 that such action was not erroneous : Everett 
 V. Union Pacific R. Co., 59-243. 
 
 1208. In the absence of manifest abuse of 
 such discretion, the appellate court will not 
 interfere with the action of the lower court 
 with reference thereto: Kesee v. Chicago <Sr 
 N. W. R. Co., 30-78. 
 
 c. Examination of witnesses. 
 
 1269. Separation: It is within the dis- 
 cretion of the court trying the cause to order 
 a separate examination of witnesses, and such 
 an order is rarely withheld when asked : 
 Hubbell V. Ream, 81-289. 
 
 1270. But an exception to the rule author- 
 izing a court to exclude witnesses in its dis- 
 cretion, upon application, arises in case of a 
 party to the action. A party has the right 
 to be present during the trial : Jemmison v. 
 Gray, 29-587. 
 
 1271. Supervision of the court: Itisright 
 and proper for the court, when objections are 
 made to questions asked the witness, to state 
 what the court deems as the proper course to 
 be taken, nor is it improper for the court upon 
 its own motion to indicate to the witness 
 what matters sliould be considered in answer- 
 ing the question: Britton v. Des Moines, O. 
 &S. R. Co., 59-540. 
 
 1272. Assumption of fact: A question is 
 improper which req>iires the witness to con- 
 strue an agi'eement in controversy or which 
 assumes that the agreement is not complied 
 with : McClay v. Hedge, 18-66. 
 
 1273. That the question asked assumes a 
 fact will not constitute error if the fact is 
 stated merely for the purpose of calling the 
 
734 
 
 EVIDENCE, III, 8, c. 
 
 Examination of witnesses. 
 
 witness' attention to the subject of his testi- 
 mony: Boothby V. Brown, 40-104. 
 
 1274. Argiimeiitiitive answer: It does 
 not follow that an answer is bad for argu- 
 mentativeness, because a witness gives a rea- 
 son for doing a particular thing after he has 
 stated the fact. Such testimony is not ob- 
 jectionable: Burlington Gas Light Co. v. 
 Oreene, 28-389. 
 
 1275. How far party bound by answer: 
 While a party is bound, ordinarily, by what 
 a witness introduced by him states, he should 
 not be prejudiced by the refusal of the wit- 
 ness to answer questions which the court 
 cannot compel him to answer: Slooum v. 
 Knosby, 70 . 
 
 That a party cannot impeach his own wit- 
 ness, see supra, gg 1190-1197. 
 
 1276. Leading questions: Questions lead- 
 ing in form are justifiable when they are 
 necessarily framed in that manner in order 
 to direct the attention of the witness to the 
 subject upon which he is required to testify : 
 Lowe V. Lowe, 40-220. 
 
 1277. The test of a leading question is to 
 consider whether an answer by yes or no 
 would be conclusive upon a matter at issue 
 or any material part of the issue. A question 
 is objectionable as leading when it suggests 
 the answer to it and not when it merely 
 directs the attention of the witness to the im- 
 mediate subject referred to : Pelamourges v. 
 Clark, 9-1 ; Sessions v. Rice, 70 . 
 
 1^7S. A question is not leading in which 
 the witness is asked whether or not a certain 
 fact is true. Such a question does not sug- 
 gest the answer desired, and therefore is not 
 objectionable: Woolheatherv. Eisley, 38-i8Q. 
 
 1279. A question in which witness was 
 asked as to what, if anything, was said by 
 plaintiff at a particular time about a certain 
 matter, was held not objectionable, as lead- 
 ing: Hurst V. Chicago, R. I. & P. R. Co., 
 49-76. 
 
 1280. A question which directs the atten- 
 tion of the witness to a particular time, and 
 asks what was said as to a particular matter 
 at that time, but does not suggest the desired 
 answer to the mind of the witness, is not ob- 
 jectionable, as leading: State v. Schilling, 
 14-455. 
 
 1281. An objection that the question is 
 leading will not be considered as valid, un- 
 
 less made at the time the question is asked, 
 and an opportunity is given to the party put- 
 ting it to propound it in the proper form : 
 Adams i\ Foley, 4-44. 
 
 1282. Where a leading question is not an- 
 swered by yes or no, and the witness subse- 
 quently testifies as to facts tending to support 
 his first answer, no substantial prejudice 
 being shown, the error will not be considered 
 sufficient to warrant a reversal : Huhbell v. 
 Ream, 31-289. 
 
 12S3. In a particular case, held, that a 
 question, whUe probably slightly leading, was 
 not of such a character as to be prejudicial to 
 the opposite party : State v. Jones, 64^349. 
 
 1284. It being proper, under certain cir- 
 cumstances, to permit leading questions to be 
 asked, it will not be presumed that there was 
 error in allowing such questions, unless the 
 absence of such circumstances is shown by the 
 record. It rests in the sound discretion of 
 the court to permit leading questions, and 
 such discretion cannot be reviewed on appeal 
 unless it be shown that it was abused : State 
 V. Bodekee, 34-521 ; State v. Moelchen, 53- 
 310; Hall v. Farmers', etc.. Savings Bank, 
 55-613. 
 
 1285. To warrant a reversal for error in 
 improperly allowing leading questions to be 
 asked, it must appear from the answer of the 
 witness that he was influenced in making it 
 by the form of the question : Reddin v. Gates, 
 52-210. 
 
 1286. The overruling of objections to ques- 
 tions as leading upon an inquiry not vital to 
 the case is not ground for reversal : Henry 
 V. Sioux City & P. R. Co., 66-53. 
 
 1287. Although much is left to the dis- 
 cretion of the court with reference to lead- 
 ing questions, yet when a party is put upon 
 the stand as a witness and his counsel per- 
 sists in instructing him upon vital points of 
 the case, by questions which are plainly im- 
 proper, and the court xipon objection does 
 not interfere, a new trial should be gi'anted. 
 When a leading question is improperly asked, 
 an objection by the opposing counsel, even 
 if sustained, does not prevent the mischief. 
 Whatever injury or prejudice there may be 
 to the opposite party is accomplished by ask- 
 ing the qiiestion : Ibid. 
 
 1288. Criminalin? questions: It is not 
 alone left to the witness to determine whether 
 
EVIDENCE, III, 8, c. 
 
 735 
 
 Examination of witnesses. 
 
 the answer would tend to criminate him. 
 While he is not required to explain how the 
 answer would criminate him, the court may 
 determine whether the answer can directly 
 or indirectly have that effect by furnishing 
 direct evidence of his guilt, or by establish- 
 ing one or many facts which together con- 
 stitute a chain of testimony sufficient to 
 warrant his conviction, one part of which in 
 itself wouU not be sufficient to accomplish 
 such result: State v. Duffy, 1.5-425. 
 
 1289. Where it is apparent to the court 
 that the answer to the question could not 
 criminate the witness, he may be compelled 
 to answer : Richman v. State, 2 G. Gr. , 533. 
 
 1290. Where it reasonably appears that 
 the answer of a witness "would expose him to 
 a penal liability or a criminal charge or any 
 kind of punishment, he should not be com- 
 pelled to answer : Prinfz V. Cheeney, 11-469. 
 
 1291. In an action for seduction, plaintiff, 
 as a witness, may refuse to answer as to 
 whether she had previous illicit intercourse 
 with other men, as the matter sought to be 
 elicited would subject her to public ignominy : 
 Brown v. Kingsley, 38-320. 
 
 1292. Where a witness, who has taken ad- 
 vantage of his privilege, is afterward prose- 
 cuted, the fact that he so refused to testify 
 cannot be given in evidence against him: 
 State V. Bailey, .54-414. 
 
 1293. Where a peace officer objected to a 
 question as to whether he knew of any place 
 where spirituous liquors were sold in the 
 county, and refused to answer on the ground 
 that an answer in the affirmative would 
 criminate him by showing a neglect of duty 
 in failing to make information for such vio- 
 lation of the law, held, that as present knowl- 
 edge would not impute to him any violation 
 of law in not having made information, 
 the question was not criminating : Hunt v. 
 McCalla. 20-20. 
 
 1294. The privilege of refusing to answer 
 a criminating question is one which a wit- 
 ness may waive, and if he consents to testify 
 to any matter tending to criminate himself, 
 he must testify in all respects relative to the 
 matter material to the issue : State v. Fay, 
 43-651. 
 
 1295. And where a witness testified that 
 defendant, in a conversation at which several 
 persons were present, admitted the crime 
 
 charged, held, that he could not refuse to 
 an.swer the further question as to who were 
 present when such admission was made : 
 Ibid. 
 
 1296. An employee cannot refuse to an- 
 swer questions on the ground that answers 
 thereto would tend to criminate his em- 
 ployer. This rule applies even when the 
 employer is a corporation : United States Ex. 
 Co. V. Henderson, 69-40. 
 
 1297. Where cross-interrogatories pro- 
 pounded to a witness whose deposition was 
 to be taken on commission asked witness 
 whether he had or had not committed a 
 crime, and such cross-inteiTOgatories were- 
 not answered, held, that the party propound- 
 ing such cross-interrogatories had no right to 
 have them read and the fact that they were 
 not answered brought to the attention of the 
 jiiry: Slocumv. Knosby, 70—. 
 
 1298. Usin^ memorandnm to refresh 
 memory: Though a witness may, for the 
 purpose of refreshing his recollection, use a 
 memorandum previously made, such paper 
 does not itself become evidence, but the wit- 
 ness mitst rely upon his recollection after 
 having it refreshed by referring to the paper : 
 Hull V. Alexander, 86-569. 
 
 1299. Where a writing is used for the pur- 
 pose of refreshing the recollection of the wit- 
 ness, the opposite party is to be permitted to 
 examine such memorandum: McKivUf v. 
 Cone, 30-455. 
 
 1300. Although entries made by a witness 
 at a previous time, which do not so refresh 
 his recollection that he is able to testify from 
 memory, but which he testifies he knew to be 
 correct at the time they were made, should 
 be produced, yet they do not become inde- 
 pendent evidence, and their production is 
 only for the purpose of enabling the other 
 party to cross-examine, and that he may have 
 the benefit of refreshing the memory of the 
 witness therefrom : Adae v. Zangs, 41-536. 
 
 1301. There is no rule requiring that the 
 writing examined by a witness to refresh 
 his recollection shall be made by his own 
 hand, and on the trial of a criminal case, 
 held, that a witness might use the minutes 
 of his evidence before the grand jury in the 
 same case for that purpose : State v. Miller, 
 53-154; State V. Miller, 53-309. 
 
 1302. Where plaintiff, in testifying as ta 
 
736 
 
 EVIDENCE, III, 8, d. 
 
 Cross-examination. 
 
 the correctness of items of account, for the 
 purpose of refreshing his memory referred to 
 a book in which he claimed that he had en- 
 tered a part, but not all, of such items, held, 
 that on cross-examination he might properly 
 be asked whether any such items were found 
 in his book : McKivitt v. Cone, 30-455. 
 
 d. Gross-examination. 
 
 1303. To effect justice: Cross-examination 
 offers one of the most effective means of de- 
 tecting falsity and discovering truth, and the 
 ruies governing it should be applied in a 
 broad and liberal spirit, with a view of effect- 
 ing substantial justice: Upton v. Knoll, 33- 
 121. 
 
 1304. What allowable: Therefore, where 
 plaintiff sought to recover an amount alleged 
 to have been paid on account and not 
 credited on final settlement, and defendant 
 sought to prove errors in such settlement 
 against him, held, that a witness testifying 
 as to the books of plaintiff and the manner 
 in wliich the mistake claimed by plaintiff 
 was made might be asked as to other items 
 of charge and credit in the account, with a 
 viev/ to showing that such books were im- 
 properly kept, and that if properly kept they 
 would show a balance for defendant : Ibid. 
 
 1305. An answer to a question on cross- 
 examination of defendant which might dis- 
 close a complete defense to the action, and 
 is proper cross-examination, and is pertinent 
 to the issues made, cannot be excluded with- 
 out error : Dively v. Cedar Falls, 21-505. 
 
 1306. Plaintiff in an action of forcible 
 entry and detainer having shown by a wit- 
 ness on his direct examination that defend- 
 ant entered into possession of the property 
 under a written lease, held competent and 
 Ijroper for defendant to show by cross-ex- 
 amination what lease it was under which he 
 entered, and for that purpose to introduce the 
 lease in evidence, without first showing that 
 such lease was binding upon plaintiff : Oold- 
 smith V. Boersch, 28-851. 
 
 1307. Where plaintiff testified as to what 
 defendant had said to him when a certain 
 note was presented by the former to the lat- 
 ter, held proper to elicit from plaintiff that 
 his business was loaning money on notes and 
 ask him how many notes he had, for the pur- 
 pose of showing that he had so many that 
 
 his memory could not be implicitly trusted 
 as to what defendant said about that partio 
 ular note : Smith v. Wagaman, 58-11. 
 
 130S. Where a party who becomes a wit- 
 ness in his own behalf claims ownership of 
 property in controversy, he may be cross-ex- 
 amined as to the source of such ownership: 
 Wallace v. Wallace, 62-651. 
 
 1309. Where a witness was asked on direct 
 examination as to whether certain notes in- 
 troduced in evidence were executed by a cer- 
 tain person, whose name was signed as 
 maker, held, that it was proper on cross-ex- 
 amination to ask the witness as to any facta 
 tending to rebut the fact that the notes were 
 signed by such party, for instance that there 
 was no consideratioh for them, also as to 
 where and under what circumstances they 
 were signed and why they were so signed : 
 Glenn v. Oleason, 61-28. 
 
 1310. Questions asked of a witness, not 
 for the purpose of testing the tnith of any 
 of his statements in chief, or with the view 
 of eliciting further information than had 
 been given in his examination in chief on 
 subjects upon which he was examined, but 
 calculated and intended, no doubt, to elicit 
 evidence of an independent fact which plaint- 
 iff's counsel deemed material to his case, lield 
 not proper : Whitsett v. Chicago, B, I, & P. 
 B. Co., 67-150. 
 
 1311. Where the cross-examination ia not 
 entirely foreign to the testimony given in 
 chief, but has no tendency whatever to im- 
 pair its credibility, the rejection of it will 
 not constitute reversible error : State v. Nei- 
 meier, 66-684. 
 
 1312. Conflned to matters in direct ex- 
 anilnatiou: A party has no right to cross- 
 examine a witness except as to facts and 
 matters stated in the direct examination: 
 Colcely V. State, 4-477. 
 
 1313. It is not proper to cross-examine a 
 witness in regard to a conversation not re- 
 ferred to in the direct examination: Wil- 
 helmi v. Leonard, 18-880. 
 
 IB 14. The cross-examination should be con- 
 flned to an inquiry as to particular questions 
 arising in the case: Winklemans v. Des 
 Moines Northwestern B. Co., 62-11. 
 
 1315. Where the object of evidence sought 
 to be elicited on cross-examination is to prove 
 an independent fact not explanatory of nor 
 
EVIDENCE, III, 8, d. 
 
 737 
 
 Cross-examination. 
 
 inconsistent with the testimony given, but to 
 render the fact testified to consistent with 
 the fact sought to be established in the case, 
 such evidence may properly be excluded as 
 improper cross-examination, being in the 
 nature of rebutting evidence : State v. Jones, 
 64-349. 
 
 131G. Where the question in issue was as 
 to plaintiff's physical condition at a certain 
 time, held, that it was not proper to ask a 
 witness on cross-examination as to the cause 
 of such condition: Bice v. Des Moines, 40- 
 638. 
 
 1317. Where a witness had stated in di- 
 rect examination certain facts as to his op- 
 portunity to observe the condition of a party 
 alleged to be insane, and that he observed 
 nothing unusual, held, that on cross-examina- 
 tion he could not be asked if he thought 
 himself competent to give an opinion as to 
 the, party's sanity : State v. Mewherter, 46-88. 
 
 1318. To test credibility, etc.: Although, 
 in a cross-examination, the court in the exer- 
 cise of its discretion may permit great lati- 
 tude, the privilege cannot be so far extended 
 as to allow the Introduction of illegal and im- 
 proper testimony. The rule permitting this 
 latitude is rather for the purpose of testing 
 the memory and credibility of the witness 
 than to enable a party to get before the jury 
 testimony which would be inadmissible if of- 
 fered in a direct examination: Gordon v. 
 State, 3-410. 
 
 1319. It is proper on cross-examination to 
 test the accuracy of a witness' statements by 
 calling his attention to former testimony: 
 Farmers', etc., Bajikv. Young, 36-44. 
 
 As to laying a foundation for impeachment 
 on cross-examination, see supra, §§ 1159-1169. 
 
 1320. It is proper on cross-examination to 
 inquire into facts wliich will throw light 
 upon the motive of a witness in giving testi- 
 mony : Dance v. McBride, 43-624. 
 
 1321. It is proper on cross-examination to 
 ask questions calculated to test the accuracy 
 of the witness' observation : Keyser v, Kan- 
 sas City, St. J. & C. B. R. Co., 56-440. 
 
 1322. In an action by a private person 
 under the intoxicating liquor law to recover 
 a penalty for the benefit of the school fund, 
 held impi'oper to ask plaintiff on his cross- 
 examination, as a witness, why he instituted 
 the suit: Cohleigh v. McBride, 45-116. 
 
 Vol. 1—47 
 
 1323. Answers ns to collateral matters 
 conclusive: When a question is put to a 
 witness on cross-examination which is col- 
 lateral and iri-elevant to the issue, his answer 
 cannot be contradicted by the party who 
 asked the question, but it is conclusive 
 against him : Cohely v. State, 4-477. 
 
 1324. A witness may not be impeached or 
 discredited as to matters about which he is 
 inten-ogated on cross-examination for the 
 purpose of testing his credibility and which 
 are not relevant to the issue: State v. Fal- 
 coner, 70 . 
 
 1325. But the fact that the witness is un- 
 friendly and hostile to the party against 
 whom he testifies is relevant and material, 
 and the witness' answers on cross-examina- 
 tion as to statements or declarations tend- 
 ing to show such a hostile feeling may be 
 contradicted by other evidence: Powell v. 
 Martin, 10-568. 
 
 1326. While it is the rule that questions 
 may be propounded to the witness on cross- 
 examination and evidence elicited which 
 tends to show his feelings and relations to the- 
 parties, the answers, however, being conclu- 
 sive upon the party asking the questions, yet 
 when it was sought in this manner to show 
 that defendant had been the agent in carry- 
 ing out a fraud of the opposite party, which 
 fact was wholly irrelevant to the issue.?, 
 lield, that the evidence of the witness was 
 improperly admitted : Madden v. Koester, 53- 
 693. 
 
 That a witness may not be contradicted on 
 collateral or immaterial matters, for the pur- 
 pose of impeachment, see supra, %% 1183-1186. 
 
 1327. As to fraud: Where fraud was 
 alleged in the purchase of certain real prop- 
 erty, and the plaintifi testified in direct ex- 
 amination as to such purchase, held, that he 
 might be asked upon cross-exajnination as to 
 the purchase of other property from the same 
 party at the same time, the value and descrip- 
 tion of such property, etc. : Mllie v. McMil- 
 lan, 53-463. 
 
 1328. A good deal of latitude should be 
 allowed on the cross-examination of parties 
 where it is sought to establish a fraudulent 
 conveyance of property: Dent v. Smith, 53- 
 262; Clark v. Jteiniger, 66-507. 
 
 1329. Opinions: It is not competent, on 
 cross-examination of a witness whose testi- 
 
738 
 
 EVIDENCE, III, 8, d, e. 
 
 Cross-examination. — Rebutting evidence. 
 
 mony is intended to uphold the legality of a 
 transaction, to aak him whether he has not 
 stated at a previous time that the transaction 
 was a swindle all the way through, such 
 nuestion calling for a mere matter of opinion : 
 Suriberg v. BahcocI:, 66-515. 
 
 1330. It rests in the discretion of the court 
 to permit a witness to be recalled for further 
 cross-examination: Sweet v. Wright, 57-510. 
 
 That a witness cannot be recalled in order 
 to lay a foundation for impeachment, see 
 supra, §§ 1176-1179. 
 
 1331. Discretion: Tlie general course of 
 cross-examination of a witness is subject to 
 the discretion of the judge, and where an 
 objection to a question has been sustained on 
 the ground that it is not proper cross-exain- 
 ination, and the party has been given per- 
 mission to make the witness his own and ask 
 the question if he desires it, the supreme 
 court will not interfere on appeal : Davis v. 
 Simma, 14-154. 
 
 1 332. The latitude to be allowed on cross- 
 examination must rest somewhat in the 
 sound discretion of the trial court, and where 
 there seems to be no abuse of discretion and 
 no prejudice has resulted, the supreme court 
 will not interfere on that ground: State c. 
 Porter, 34-131. 
 
 1333. The court is vested with a discretion 
 as to what questions shall be allowM on 
 cross-examination, and unless prejudice is 
 shown, error in the exercise of such discre- 
 tion will be disregarded : Armil v. Cliicago, 
 B. &Q.R. Co., 70 . 
 
 1334. Where an attorney was allowed to 
 cross-examine a, witness as to matters not 
 called out in direct examination and thus 
 elicit answers to leading questions, held, 
 that in view of the fact that the testimony 
 of the witness indicated a strong purpose to 
 sustain the opposite pai-ty, there did not ap- 
 pear to be such substantial error in the 
 action of the court as to warrant a reversal : 
 Lowe V. Young, 59-364. 
 
 1 335. As to what are and what ai-e not 
 circumstances connected with the evidence 
 in chief in such sense that a cross-examina- 
 tion with reference thereto will be proper is 
 a quesition sometimes diffiotilt to determine, 
 and unless the trial court has so far- ovei-- 
 stepped the bounds as to admit that in cross- 
 examination .which clearly has no connection 
 
 with the direct testimony, an appellate court 
 will not be justified in reversing a judgment 
 on such grounds, especially when the cross- 
 examination is upon facts competent to be 
 proved in the case. In such case very much 
 must be left to the discretion of the trial 
 court : Glenn v. Oleason, 61-28. 
 
 1336. The extent to which the cross-ex- 
 amination of witnesses may be allowed is 
 peculiarly within the discretion of the court, 
 and a cause will not be reversed for error 
 unless it appears that the com-t has abused its 
 discretion and that the complaining party 
 has been greatly prejudiced thereby: Player 
 V. Burlington, C. E. & N. R. Co., 63-723. 
 
 e. Rebutting evidence. 
 
 1337. What proper: Evidence in rebuttal 
 must be confined to the issues raised : Mil- 
 ler V. Chicago & N. W. R. Co., 66-364. 
 
 1338. A party cannot introduce in rebut- 
 tal evidence which should properly have 
 been introduced in chief : Manning v. Bur- 
 lington, C. R. & N. R. Co., 64-240. 
 
 Still the court may, in its discretion, 
 ; allow new evidence to be introduced after 
 i the evidence in chief is closed : See supra, 
 ' gg 1240-1244. 
 
 1339. Cumulative evidence: Where the 
 state introduces the prosecuting witness in a 
 criminal case and rests, and the only evi- 
 dence offered by defendant is directed against 
 such witness' reputation for veracity, the 
 state cannot, in rebuttal, prove by another 
 witness the facts charged : State v. Parish, 
 22-284. 
 
 1340. Where one party has introduced evi- 
 dence of a fact in issue, sufficient to establish 
 it in the absence of evidence to the contrary, 
 and the other paity has then introduced evi- 
 dence to disprove the existenoe of such fact, 
 the fii-st party may, in rebuttal, introduce 
 cumulative evidence to overcome that intro- 
 duced by his adversary : Davidson v. Over- 
 hulser, 8 G. Gr., 196 ; Lawson v. Campbell, 4 
 G. Gr., 413. 
 
 1341. Rebuttal of immaterial or irrele- 
 vant evidence: Where defendant introduced 
 a subject in the examination of a witness, and 
 plaintiff cross-examined on the same subject, 
 lield, that other evidence to rebut that of the 
 witness on cross-examination might be intro- 
 
EVIDENCE, III, 8, e; 9. 
 
 739 
 
 Rebutting. — Objections to. ' 
 
 duced by plaintiff and defendant could not 
 object that it was incompetent : Artz v. Chi- 
 cago, R. I. & P. R. Co., 44-284. 
 
 1342. Where a party has himself testified 
 as to certain matters, he cannot claim that 
 rebutting testimony as to the same matters 
 is inadmissible: Hale v. PhUbrick, 47-217. 
 
 1343. A party may introduce evidence to 
 rebut evidence introduced by the opposite 
 party although the inquiry itself is irrele- 
 vant: Stafford V. Oskaloosa, 64-251. 
 
 1344. Where the court allows immaterial 
 evidence to be introduced under proper ob- 
 jection, it is error to exclude evidence to re- 
 but the same : Frost v. Rosecrans, 66-405. 
 
 1345. A party who permits immaterial 
 evidence to be introduced by the opposite 
 party without objecting does not thereby be- 
 come entitled to introduce other evidence in 
 rebuttal of that thus introduced: Manning 
 V. Burlington, C. R. & N. R. Co., 64-240. 
 
 134G. The fact that a party introduced tes- 
 timony to rebut testimony introduced by the 
 other party over his objection to its compe- 
 tency does not constitute a waiver of such ob- 
 jection: Sims V. Moore, 61-128. 
 
 Further as to evidence rendered competent 
 by reason of the admission of other evidence, 
 see supra, §§ 89-106. 
 
 1347. Kebuttal as to .matters not shovrn 
 in chief: Plaintiff may in rebuttal introduce 
 evidence to contradict that of defendant, 
 with reference to a matter as to which evi- 
 dence was not introduced by the plaintiff in 
 chief: Lanning v. -Chicago, B. & Q. R. Co., 
 68-502. 
 
 1348. Where defendant as a witness at- 
 tempted to explain the testimony of a wit- 
 ness for the prosecution with reference to 
 certain statements made by him, by testifying 
 as to other statements made by such witness 
 in the alleged conversation, held, that the 
 previous witness might be recalled for the 
 purpose of denying that he. made such state- 
 ments : State v. Cross, 68-180. 
 
 9. Objections to evidence. 
 
 1349. Testimony not objected to: Error 
 in admitting testimony cannot be complained 
 of if introduced without objection : State v. 
 Smith, 46-670; State v. Hamilton, 32-573. 
 
 1350. Gronnds must be stated: The 
 
 ground of objection to evidence should be 
 distinctly stated : State v. Wilson, 8-407. 
 
 1351. The degree of particularity required 
 in pointing out objections to testimony when 
 offered must depend very much on the kind 
 of testimony and the circumstances and at- 
 titude of the case : Rindskoff v. Malone, 9- 
 540. 
 
 1352. Where testimony was received 
 "subject to all legal objections," and no ob- 
 jection was made at the trial nor in the 
 motion for a new trial, held, that the objec- 
 tion that papers were thus introduced with- 
 out proper authentication, or that records 
 were used without accounting for the ab- 
 sence of the originals, were not objections 
 which could be first made on appeal : Chtest 
 V. Byington, 14-30. 
 
 1353. Objection to evidence as " incompe- 
 tent, irrelevant and immaterial" does not 
 raise the question of the competency of the 
 witness to testify as to a question of valup : 
 White V. Smith, 54-233. 
 
 1354. Nor does such objection raise thf 
 question as to whether the evidence offered 
 is the best evidence : Iowa Honiestead Co. r. 
 Duneomhe, 51-525 ; but contra^ see Hunt v. 
 Higinan, 70 . 
 
 1355. An objection to evidence " as incom- 
 petent under the law" raises the objection 
 that the examination of the witness in the 
 manner proposed is not authorized by law as 
 well as that the evidence sought to be intro- 
 duced is inadmissible. Therefore, held, that 
 such an objection was suflfi(!ient to raise the 
 point that a witness could not be cross-exam- 
 ined as to his belief as to a future state of 
 existence for the purpose of discrediting his 
 testimony, although other evidence of the 
 fact would be admissible: Dedricv. Hopson, 
 62-562. 
 
 1356. A party's right to the relief asked 
 in his pleading, or objections to defects in his 
 pleading, cannot be raised by objections to 
 evidence : Jones i'. Marey, 49-188. 
 
 1357. In trial to court: It is error to over- 
 rule a proper objection to a question and the 
 answer thereto, even though the trial be to 
 the court and not to the jury: Williams r. 
 Soulier, 7-435. 
 
 135S. When objection taken: An objec- 
 tion to a question which goes to the form 
 
740 
 
 EVIDENCE, III, 9. 
 
 Objections to. 
 
 and not to the substance of the inquiry 
 must be made at the time, or it cannot after- 
 wards be raised : Mills v. Mabon, 9-48i. 
 
 1359. Objections to evidence for incompe- 
 tency must be made before the evidence is 
 admitted and cannot be made afterwards: 
 State V. Moore, 35-138. 
 
 loCO. Wliere evidence is admitted without 
 objection, a party cannot afterwards ccm^ 
 plain that the matter to -which it relates 
 is not put in issue by the pleadings : Wilson 
 Sewing Machine Co. v. Bull, 52-554. 
 
 1361. An objection that an instrument of- 
 fered in evidence is not properly stamped 
 cannot be raised by an instruction after the 
 cause has gone to the jury, but must be made 
 when the instrument is offered in evidence : 
 Thomson v. Wilson, 26-120. 
 
 1362. Such an objection cannot be inter- 
 posed, if not made when the instrument is 
 oflfei-ed in evidence: Chamberlin v. Robert- 
 son, 31-408. 
 
 1363. Objection to tlie admission of evi- 
 dence cannot be made for the first time in a 
 motion for a new trial : Manning v. Burling- 
 ton, O. R. & N. R. Co., 64-240. 
 
 1364. Party estopped from objecling: A 
 party cannot object to testimony vvliich he 
 himself has introduced: Walker v. Stannis, 
 3 G. Gr., 440. 
 
 1365. One who has obtained a ruling as to 
 the evidence in a cause sustaining an objec- 
 tion cannot afterwards object to the appli- 
 cation of the rule in another instance : Craw- 
 ford V. Wolf, 29-567. 
 
 1366. A party who offers evidence with 
 knowledge of its incompetency cannot after- 
 wards object to its competency as proving 
 any facts recited therein, and this rule is ap- 
 plicable to documentary evidence. So held 
 as to a void judgment introduced and relied on 
 by one of the parties : Phillips v. Btozr,38-649. 
 
 1367. Where defendant objected to evi- 
 dence, and it was admitted only for a specified 
 purpose for which it was legally admissible, 
 held, that defendant could not, in the ftcj tf 
 such objection, make the point, on appeal, 
 that it was admissible for other purposes and 
 should not have. been limited: Henderson v. 
 Chicago, R. I. & P. R. Co., 48-216. 
 
 Interest: As to objections on the ground 
 of incompetency by reason of interest, see 
 supra, g3 1018-1031. 
 
 Relationship: As to an objection on the 
 ground that the witness and the opposite 
 party are husband and wife, seesiijpra, § 1101. 
 
 1368. WiiiverofobjiH-liim: Where a party 
 excepts to tlie admissibility of evidence and 
 alterwai'ds demurs thereto or moves to dis- 
 miss for insufficiency of the evidence, he 
 must be deemed to have waived his excep- 
 tion as to its admissibility: Willcinsv. Ger- 
 mania F. Ins. Co., 57-529. 
 
 136:>. Admissibility for p.nrticiilar pur- 
 pnss: If evidence is competent and admissible 
 for any purpose, it cannot be rejected because 
 it may be considered by the jury for an im- 
 proper purpose. Under such circumstances, 
 the party must guard himself against preju- 
 dice by requesting an instmction limiting 
 the testimony to its legitimate purpose: Alli- 
 son V. Chicago & N. W. R. Co., 42-274; 
 Marion v. Chicago, R. I. & P. R. Co., 64- 
 568. 
 
 1370. Where evidence is admissible for 
 one purpose and no other, and is of such 
 character that there is danger that it will 
 not be restricted in its application to its par- 
 ticular object, as it cannot be excluded, the 
 court may be i-equired to caution the jury 
 by instructions as to the proper purpose for 
 which it is to be considered: Parldll v. 
 Brighton, 61-103. 
 
 1371. Where certain tax deeds were offered 
 ia evidence by plaintiff and excluded by the 
 court, but after an amendment of plaintiff's 
 petition were admitted, held, that under such 
 subsequent admission they could be con- 
 sidered for the purpose of establishing any 
 facts for which they were competent, and 
 their pi'evious exclusion would not amount 
 to eiTor : Walker v. Beaver, 50-504. 
 
 1372. Insiractioiis withdrawing: or lim- 
 iting' evidence: Error in the admission of 
 evidence may be cured by excluding it by 
 an inbtruction from the consideration of the 
 jury: State v. Davis, 56-202; Ham v. Wis- 
 consin I. <& N. R. Co., 61-716 ; Davis v. Dan: 
 forth, 65-601. 
 
 1373. Where improper evidence was ad- 
 mitted against objection, but w:;s aftcrwai-ds 
 by the court expressly withdrawn from the 
 consideration of the jury, lield, that there 
 was not sufficient error to requirt^ a reversal 
 of the case : State v. Spurbeek, 44^667. 
 
 1374. Improper admission of evidence, or 
 
EXCEPTIONS. I. 
 
 Ul 
 
 When necessary ; how taken. 
 
 refusal to strike it out on motion, is not cured 
 by an instruction to the jury withdrawing it 
 from their consideration : Wieks v. De Witt, 
 54-130. 
 
 1373. Evidence admitted without objec- 
 tion cannot be first objected to and with- 
 drawn from the consideration of the jury by 
 au instruction: State v. Pratt, 20-2G7 ; Becker 
 V. Becker, 45-339. 
 
 13 7G. Where evidence which is incom- 
 petent in any event is introduced, even with- 
 out objection, it may properly be excluded 
 on motion or the jury instructed to disregard 
 it entirely; but where secondary evidence 
 which may be made competent is introduced 
 without objection, it ought not to be with- 
 drawn by an instruction : Davis v. Strohm, 
 17-421. 
 
 1377. Where a question calls for testi- 
 mony, some of which is material, but is ob- 
 jectionable in being too broad, the opposite 
 party should not object to the whole of the 
 question, but ask that it be limited : State v. 
 Day, 60-100. 
 
 Further as to what objections may be 
 raised by Instructions, see that title, IV, f. 
 
 1878. Motion to exclude: Where objec- 
 tionable evidence has slipped in, the pai'ty in- 
 jured thereby should raise the objection by 
 motion to exclude, and if he does not do so 
 he cannot urge his objection on appeal : Ibid. 
 
 1379. The entire evidence of a witness will 
 not be excluded upon motion on the ground 
 that it contains improper matter where the 
 objecting party fails to ask the court to in- 
 struct the jury as to the effect of the im- 
 proper evidence: Smalley v. Iowa Paciflo R. 
 Co., 36-571. 
 
 Exceptions to rulings on admission of evi- 
 dence, see Exceptions, §g 20-37. 
 
 EXCEPTIONS. 
 
 I. When necessaet; how taken. 
 II. Bills of exceptions ; .when eequieed ; 
 
 WHAT SUFFiaENT; HOW PEOCUKED. 
 
 As to bill of exceptions in criminal cases, 
 see Ceiminal Law, §g 1668-1671. 
 
 I. When necessaey; how taken. 
 
 I. Exceptions necessary: The supreme 
 court wUl not review, on appeal, a ruling of 
 
 the lower court to which exception is not duly 
 taken: Chapman v. Lobey, 31-300; Holtonv. 
 Butler, 22-557 ; Appanoose County v. Walker, 
 23-26 ; Redding v. Page, 52-406. 
 
 2. The fact that exception was properly 
 taken must aiSrmativeiy appear: Season v. 
 Jonason, 14^399. 
 
 3. This rule is not affected by the statutory 
 provision (Code, g 3169) dispensing with the 
 necessity of a motion for new trial : Eason v. 
 Gester, 31-475. 
 
 4. The supreme court will not review a 
 case on apj)eal where the record presents no 
 finding of facts by the court below, or motion 
 for a new trial or other exception taken to 
 its ruling : Marshall v. Richards, 19-571. 
 
 5. Where no exceptions were taken save 
 to the ruling on a motion for new trial, and 
 the record contained nothing to show the 
 truth of the grounds assigned for new trial, 
 the judgment was affirmed : Kline v. Moore, 
 20-599. 
 
 6. Where no exceptions are taken on the 
 trial of an equity case, and the proper steps 
 are not taken to have the case tried anew in 
 the supreme court, there is nothing which the 
 court can consider on appeal: Richards v. 
 Hintrager, 45-253. 
 
 As to the necessity for exceptions to final 
 judgments in law or in equity, see infra, 
 M 58-61. 
 
 7. Time for taking: An exception to a 
 decision or ruling must be taken at the time 
 the decision or ruling is made. The only de- 
 parture from this rule is that authorized by 
 statute in regard to instructions. (See infra. 
 §§31-41): Joliet Iron, etc., Co. v. Chicago, 
 C. & W. R. Co., 50-455; Nagel v. Guittar, 
 62-510 ; Boardman v. Beckwith, 18-292. 
 
 8. By ivlioiii lakeii: An exception by the 
 party who is the real party in interest in the 
 appeal, although not technically the party 
 appealing, will be sufficient to save the ques- 
 tion for review : Fries v. Porch, 49-351. 
 
 9. Waiver of excpptiou: An exception 
 properly taken, but afterwards expressly 
 waived upon appeal, cannot be taken ad- 
 vantage of by the opposite party : Fortney v. 
 Jacoby, 51-95. 
 
 10. Waiver of necessity for exception: 
 Where upon the transfer of a cause by agree- 
 ment from one court to another for trial, it 
 was stipulated that the judgment to be 
 
742 
 
 EXCEPTIONS, I. 
 
 When necessary ; how taken. 
 
 rendered should be entered in the court from 
 which the transfer was taken, as of the pre- 
 vious term, and that either party should have 
 tlie right to appeal, held, that such stipula- 
 tion amounted to a waiver of the necessity 
 of excepting to the judgment : Wolf v. Smith, 
 36-454. 
 
 11. Successful party need not except: 
 The successful party cannot, in any way, be 
 prejudiced by the failure to except to any 
 action of the court adverse to him : Baird v. 
 Chicago, R. I. & P. R. Co., 61-359. 
 
 12. Therefore where, on appeal, a judg- 
 ment was revei'sed because the verdict was 
 contrary to an instruction given, and the 
 cause was remanded for a new trial, and the 
 unsuccessful party then moved for judgment 
 on special findmgs, on the theory that under 
 the doctrine of the instruction he was enti- 
 tled to judgment on such findings, held, that 
 the successful party might controvert tlie 
 correctness of such instruction although he 
 had not excepted thereto, and that the in- 
 struction was not binding on the court: 
 Ibid. 
 
 13. Rulin;? on motion or demurrer: Ap- 
 peal cannot be taken from the ruling upon a 
 demurrer unless such ruling is duly excepted 
 to: Cainv. Story, 15-378. 
 
 14. "Where a party in an equitable suit 
 stands upon the ruling upon a motion or de- 
 murrer, and desires to appeal therefrom, he 
 should except thereto as in a law action: 
 Powers V. CBHen County, 54-501 ; Patterson 
 V. Jack, 59-632; Phipps v. Penn, 2B-S0; Hod- 
 gin V. Toler, 10——. 
 
 15. An exception to the overruling of a 
 demurrer is all that is necessary to preserve 
 the party's right of appeal from such ruling. 
 It is not necessary for him to except again 
 when the final judgment is entered : Jordan 
 V. Kavanaugh, 63-152. 
 
 16. Where a motion for continuance was 
 made by defendant, but overruled, and jtidg- 
 ment entered against him by default, and 
 no exception was made to the ruling on 
 the motion, nor was any motion made to set 
 aside the default, held, that there was noth- 
 ing which could be reviewed on appeal : Car- 
 ter V. Griffin, 54r-62. 
 
 17. The action of the court in ordering a 
 change of place of t^ial should be excepted 
 to or it cannot be made a ground for objec- 
 
 tion on appeal ; if not known to the appellant 
 in time for taking proper exceptions, he 
 should move to set aside the order on that 
 ground and except to the action of the 
 court if adverse to him: Scott v. Neises, 
 61-62.' 
 
 18. Objeclious to a referee's, report can- 
 not be urged on appeal unless exceptions to 
 the report have been filed in the trial court : 
 Blake v. Dorgan, 1 G. Gr., 547. 
 
 19. But such objections may first be taken 
 in the court appointing the referee ; it is not 
 necessary they be made before the referee : 
 Edwards v. Cottrell, 43-194; Washington 
 County V. Jones, 45-260; Hodgin v. Toler, 
 70 . 
 
 Further as to exceptions to referee's action 
 or report, see Eeperence, g§ 20-23, 41-48. 
 
 20. To admission or rejection of evi- 
 dence: When exception is taken to the ad- 
 mission or exclusion of evidence, the ground 
 of objection must be stated, otherwise the 
 ruling cannot be reviewed on appeal : Peek v. 
 McKean, 45-18; Davidson v. Smith, 20-466; 
 Thompson v. Blanchard, 2-44. 
 
 Tliat no objection can be considered on 
 appeal except such as is raised by objection 
 made, see Appeals, IV, 1. 
 
 As to wliat tlie record must sljow to en- 
 able the exception to a ruling upon evidence 
 to be considered, see Appeals, IV, 3. 
 
 21. A general objeetiou to the introduc- 
 tion of evidence, specifying no ground upon 
 which it is raised, cannot be taken advantage 
 of on appeal: Oelpecke v. Lovell, 18-17; 
 Carleton v. Byington, 18-482; Davidson v. 
 Smith, 20-466; O'Hagan v. Clinesmith, 24- 
 249; Chase v. Walters, 28-460; Keough V. 
 Scott Count;/, 28-837; Williams v. Meeker, 
 29-292; Snyder v. Nelson, 31-238; Lake v. 
 Miller, 31-596; State v. Benge, 61-658. 
 
 22. Where the party appealing has made a 
 general objection to the admission of evi- 
 dence, the ground of which does not appear 
 of record, and it is overruled, such ruUng 
 cannot be reviewed upon appeal, for the rea- 
 son that, in presenting siich objection, he 
 might have relied upon an insufficient gi-ound, 
 and should not be allowed, upon appeal, to 
 rely upon another and sufficient ground. 
 But where the successful party makes a gen- 
 eral objection which is sustained, if the appel- 
 lant can show that there could be no legal or 
 
EXCEPTIONS, I. 
 
 743 
 
 When neoessai-y ; how taken. 
 
 possible ground upon which such ruling can 
 be sustained, he will be entitled to a reversal : 
 Clark V. Connor, 38-311 ; Englekenv. Webber, 
 47-558. 
 
 23. When the bill of exceptions does not 
 disclose the ground of objection to a question, 
 but the objection is sustained, the court will, 
 on appeal, if the question is vulnerable to any 
 objection, presume that such was the one 
 made and rightfully sustained : Hoben v. Bur- 
 lington & M. R. R. Co., 20-563. 
 
 24. What sufliciently specific: An excep- 
 tion on the ground of incompetency is suf- 
 ficiently specific : Greenleaf v. Dubuque <& S. 
 C. R. Co., 30-301. 
 
 25. Where testimony was. introduced to 
 impeach a witness by showing bad moral 
 character, held, that an objection to such tes- 
 timony as incompetent and improper was not 
 sufficiently specific to raise the objection that 
 the testimony related to a specific vice and 
 not to the gener.il moral character : Kilburn 
 V. Mullen, 23^98. 
 
 26. Motion for new trial is not necessary 
 to enable the court to pass upon a ruling as to 
 the admission or exclusion of evidence, where 
 such ruling is duly excepted to, and virtually 
 disposes of the whole case : MoOoy v. Julien, 
 15-371. 
 
 27. Time for taking: Objection to the 
 introduction of evidence must be made at the 
 time it is offered: Boardman v. Beckwith, 
 18-392 ; State v. Benge, 61-658. 
 
 28. To the giving or refusing instruc- 
 tions: The action of the trial court in giving 
 instructions cannot be reviewed on appeal 
 unless exceptions thereto have been duly- 
 taken in the trial court : Kelleher v. Keokuk, 
 60-473 ; Todd v. Branner, 30-439 ; Norton v. 
 Swearengen, 19-566; Cadwallader v. Blair, 
 18-430 ; State v. Moran, 7-236. 
 
 29. So held, also, as to refusal to give in- 
 structions: Morse V. Close, 11-93. 
 
 30. The record must show that exception 
 to the giving of instructions was duly taken : 
 May V. Wilson, 31-79; Wilcox v. McCune, 
 31-294. 
 
 And as to what the record must show, see 
 also Appeals, §§ 359-270. 
 
 31. Time for excepting to instructions: 
 
 Under statutory provisions, l exceptions to 
 the giving or refusal of instmctions may be 
 taken within three days after verdict, but it 
 is not sufficient to take them after that time, 
 even in a bill of exceptions allowed and 
 signed : Bailey v. Anderson, 61-749. 
 
 32. The ruling of the court in giving or re- 
 fusing instructions cannot be reviewed when 
 such ruling was not excepted to at the time 
 or within three days after verdict : Maxon v. 
 Chicago, M. & St. P. B. Co., 67-226. 
 
 33. Exceptions taken in a motion for new 
 trial filed within the three days after verdict 
 allowed by statute, the grounds of objection 
 being set out, are sufficient : Deere v. Needles, 
 65-101 ; Parker v. Middleton, 65-300. 
 
 34. But if the motion is not filed within 
 the three days, the exceptions cannot be re- 
 garded : Gardner v. Jaques, 42-577 ; Kirk v. 
 Woodbury County, 55-190; Ewaldt v. Far- 
 low, 63-813. 
 
 35. If objections to instructions are not 
 taken at the time but are taken in a motion' 
 for a new trial, the ground of objection must 
 be stated : Parsons v. Parsons, 66-754. 
 
 36. Prior to the statutory provisions allow- 
 ing three days for taking exceptions to in- 
 structions, it was held that objections to the 
 giving or refusal of instructions must be 
 taken at the time of giving or refusal, and 
 the record should so show to enable the su- 
 preme court to pass upon such objections : 
 Rawlins v. Tucker, 3-313. 
 
 37. Therefore it was held that it was not 
 sufficient to first assign the giving or refusal 
 as error in a motion for new trial : Snyder v. 
 Eldridge, 31-139 ; Snyder v. Nelson;, 31-338 ; 
 Garland V. Wholebau, 30-871. 
 
 38. And it was not sufficient to make the 
 giving or refusal of instructions ground of 
 motion for now trial, and then except to the 
 ruling on the motion : McKell v. Wright, 4- 
 504; Whitney y. Ohnstead, 5-373; Curtis v. 
 Hunting. 6-536. 
 
 ^ Code, § 2787. If ttie giving or refusal be excepted to, the same may be without any stated reason there- 
 for, and all instructions demanded must be filed, and shall become a part of the record. 
 
 § 2789, Either party may take and file exceptions to the charge or instructions given, or to the refusal to 
 give any instructions offered, within three days after the verdict, and may include the same in a motion for a 
 new trial, but in either case the exceptions shall specify the part of the charge or instruction objected to and 
 the ground of the objection. 
 
7U 
 
 EXCEPTIONS, I. 
 
 When necessary ; how taten. 
 
 39. It was also held that in order to make 
 the omission to give an instruction available 
 on motion for new trial, it must have been 
 excepted to before the jury returned their 
 verdict: Evans v. Burlington & M. R. R. Co., 
 21-374. 
 
 40. Exceptions to instructions preserved 
 during the course of the trial may be con- 
 sidered on appeal, although the motion for a 
 new trial in which they are also incorporated 
 is stricken from the file because filed too 
 late: Beems v. Chicago, R. I. & P. E. Co., 
 58-150. 
 
 41. A claim that it is the practice in a trial 
 court to regard all instructions as excepted 
 to will be of no avail in the supreme court if 
 the fact of the existence of such practice does 
 not appear in the record : Steyer v. Curran, 
 48-580. 
 
 42. Statement of grounds: Under the 
 statutory provisions above referred to, 
 grounds of exception to the giving or re- 
 fusal of instructions need not be stated if ex- 
 ceptions are taken at the time of giving or 
 refusal: Van Pelt v. Davenport, 42-308, 314; 
 Johnson v. Chicago, R. I. <& P. R. Co., 51-25 ; 
 Williams v. Barrett, 52-637 ; Williamson v. 
 Chicago, R. I. <& P. R. Co., 58-126; Boyce v. 
 Wabash R. Co., 63-70. 
 
 43. If exceptions are not taken when the 
 instructions are given, such exceptions must 
 specify the ground of objection: Hale v. 
 Gibbs, 43-380, 884. 
 
 44. In such case the ground of objection 
 that "they are not applicable" is not suf- 
 ficiently specific where it is urged that the 
 instructions are essentially erroneous : Miller 
 V. Gardner, 49-234. 
 
 45. So, where the exception was first taken 
 in the motion for a new trial, no ground 
 being alleged, AeZd, that error in the instruc- 
 tions could not be considered on appeal: 
 Stevens v. Taylor, 58-664. 
 
 46. An exception stating that " the court 
 misdirected the jury in a matter of law," 
 held too general, where theAejtception was not 
 taken at the time the instruction vs^as given : 
 Benson v. Lundy, 53-265. 
 
 "Where grounds are stated, no others can be 
 considered on appeal: See Appeals, § 180. 
 
 47. What sufllciently specific as to the 
 instructions objected to; exception en 
 masse : A general exception en masse to all 
 
 the instructions given is sufiicient if no por- 
 tion of the charge is correct : Eddy v. How- 
 ard, 23-175. 
 
 4S. But if any portion of the instructions 
 given is correct, such an exception en masse 
 will not be regarded. (The rule being differ- 
 ent under the present statutory provision 
 from that a.nao\incedmEyserv. Weissgerber, 
 2-463, decided under a former statute.) Dav- 
 enport Gas, etc., Co. v. Davenport, 13-229; 
 Loomis V. Simpson, 13-532; Jack v. Naber, 
 15-450 ; Armstrong v. Pierson, 15-470 ; Cous- 
 ins V. Westcott, 15-253; Lyons v. Thompson, 
 16-62; Shephard v. Brenton, 20-41 ; Spray v. 
 Scott, 20-473 ; Verholf v. Van Houwenlengen, 
 21-429 ; Carpenter v. Parker, 23-450 ; Bedman 
 V. Malvin, 23-296 ; McCaleb v. Smith, 24-591 ; 
 Mershon v. National Ins. Co., 34-87; Cook 
 V. Sioux City & P. R. Co., 37-426; Bartle v. 
 Des Moines, 38-414 ; Jfoore v. Gilbert. 46-508; 
 Ruter V. Foy, 46-132 ; Pitman v. Molsberry, 
 49-339. 
 
 49. And it was held that an instruction to 
 the charge in the words, "to the giving of 
 each of which instructions the defendant ex- 
 cepted," was not sufficient: Davenport Gas, 
 etc., Co. V. Davenport, 18-229. 
 
 50. Where but one instruction was given, 
 only a portion of which was considered objec- 
 tionable, held, that an exception to the entire 
 instruction was not sufficiently specific: 
 Brown v. Scott County, 36-140. 
 
 51. Designation by number snfflcieiit: 
 An exception to instructions wliich specifies 
 them by number is sufficiently definite as to 
 the part objected to : Miller v. Gardner, 49- 
 234. 
 
 52. An exception to all the instructions 
 between certain numbers, "and to each of 
 them," is sufficiently specific : Mann v. Sioux 
 City & P. R. Co., 46-637. 
 
 53. An exception to the refusal to give in- 
 structions, as follows, " to which said refusal 
 as to each of said instructions separately the 
 defendant at the time excepted," 7ieW suffi- 
 cient, even if exception to refusal to give was 
 required to be specific, which it is not : Will- 
 iamson V. Chicago, R. I. & P. R. Co., 53- 
 126. 
 
 64. An exception to the giving of each and 
 every instruction given, taken at the time the 
 instructions are'given, is sufficient. A change 
 in the statute since the decision in Daven- 
 
EXCEPTIONS, I, II. 
 
 '74S 
 
 When necessary; how taken. — Bills of. 
 
 port Gas, etc., Co. v. Davenport, 13-329, 
 renders the rule of that case to the contrary 
 no longer applicable: Hawes v. Burlington, 
 a. JR. <& N. R. Co., 64-315; Eikenberry v. 
 Edwards, 67-14. 
 
 65. SiiiS'le proposition: If there is but a 
 single proposition stated in the charge, an 
 exception thereto is sufficiently specific: 
 Boycev. Wabash R. Co., 63-70. 
 
 oG. A general exception to the refusal to 
 give several instructions is sufficient: Dav- 
 enport Qas, etc., Co. v. Davenport, 13-329; 
 Harvey v. Tama County, 53-228; William- 
 son V. Chicago, R. I. & P. R. Co., 53-126, 
 143. 
 
 57. Particular exception construed: 
 Where the judge refused certain instructions 
 which he had before announced that he 
 would give, to which exception was taken, 
 and gave in their place another instruction in 
 which a specifis question was submitted to 
 the jury, held, that an exception to this in- 
 struction sufficiently called in question the 
 correctness of the action of the court, not only 
 as to the time and manner of giving the in- 
 struction, but also as to the matter thereof : 
 Eddy V. Howard, 23-175. 
 
 As ti) meihoil of noting exceptions to in- 
 structions and making them part of the rec- 
 ord, see infra, §§ 85-90. 
 
 58. To jadgnicnts and decrees: No objec- 
 tion to a judgment not excepted to in the 
 court below can be considered upon appeal : 
 Redding v. Page, 52-406 ; Soup v. Smith, 36- 
 472. 
 
 59. Not necessary in equity: Au exception 
 to a final decree in an equitable action is not 
 necessary where the party is entitled to a 
 trial de novo on appeal. (So provided by Code, 
 §2S31]: Diekenv. Morgan, 59-157; Gatelyv. 
 Kniss, 64r-537. 
 
 60. Prior to this statutory provision it was 
 not settled whether an exception to a final 
 decree in equity was necessary when the case 
 was brought up on appeal for trial anew : 
 Phipps V. Perm, 23-30. 
 
 61. But where the case, though in equity, 
 was one triable on appeal only upon writ of 
 error (under peculiar provisions of Rev., 
 §8 3999, 3000, not now in force), an exception 
 to the decree was necessary : Dumont v. Bar- 
 rail, 19-567 ; Moore v. Daniels, 30-596 ; State 
 V. Orwig, 37-538. 
 
 62. Wliat sufficient: An exception to the 
 overruling of a motion for a new trial is a 
 sufficient exception to the judgment : Oulli- 
 her V. Chicago, E. I. & P. R. Co., 59-416. 
 
 63. Where a motion asking for judgment 
 on the findings of a special verdict was over- 
 ruled, and proper exception taken, held, that 
 it was not necessary to except to the judg- 
 ment afterwards rendered : Aldrich v. Price, 
 57-151. 
 
 64. Where the judgment is founded upon 
 a conclusion of law which is duly excepted 
 to, it seems that such exception will be suffi- 
 cient to entitle the pai-ty to have the correct- 
 ness of such conclusion determined upon 
 appeal, although no exception to the final 
 judgment appears : Barnhart v. Farr, 55-366. 
 
 65. Time: Exception to a judgment must 
 be taken at the time it is rendered : Nagel v. 
 Guittar, 62-510. 
 
 66. How shown: An oral exception en- 
 tered of record at the end of the decision 
 excepted to is sufiiciently taken : Cramer v. 
 White, 29-336. * 
 
 67. An exception thus entered need not be 
 embodied in a bill of exceptions: Lauh v. 
 Paine, 46-550; Winet v. Berryhill, 55-411. 
 
 68. An exception to the conclusion of law 
 in the judgment, held sufficient to raise a 
 question whether the conclusion reached from 
 the facts found was correct : Heiikle v. Keota, 
 68-334. 
 
 II. Bills of exceptions; when ee- 
 quieed; what sufeioient; how 
 peocdeed. 
 
 As to bill of exceptions in criminal cases, 
 see Ckiminal Law, §§ 1668-1671. 
 
 69. When necessary ; whiit deemed part 
 of record: Previous to present statutory pro- 
 visions, it was held that a summons or other 
 writ was no part of the record unless made 
 so by bill of exceptions : Childs v. Risk, Mor. . 
 439. 
 
 70. Also that (.a motion and affidavit in 
 support thereof did not become part of the 
 record unless embodied in the bill of excep- 
 tions : Abbee v. Higgins, 3 G. Gr. , 535 ; Cook 
 V. Steuben County Bank, 1 G. Gr., 447. 
 
 71. But under present statutory provisions 
 (Code, y 3184) amotion properly filed becomes 
 part of the record : Leinonds v. French, 4 G. 
 
7i6 
 
 EXCEPTIONS, II. 
 
 Bills of. 
 
 Gr., 123; Mays v. Deaver, 1-316; Ellsworth v. 
 Moore, 5-486. 
 
 72. The fact that a matter is recited ia a 
 motion which is made a part of the record 
 does not make the matter itself of record un- 
 less expressly made so: Herring v. State, 1- 
 305 ; Pharo v. Johnson, 15-560. 
 
 73. Garnishee's .answer: The answer of a 
 garnishee does not become a part of the 
 record unless embodied in a bill of excep- 
 tions: Brainard v.. Simmons, 58-464. 
 
 74. Affidavits introduced on the heai-ing 
 of an application for a temporary injunction 
 in resistance thereof are no part of the record, 
 unless preserved by bill of exceptions or 
 otherwise : Hart v. Foley, 67-407. 
 
 75. It is not necessary that affidavits which 
 have been presented on a motion for change 
 of venue be preserved and made matter of 
 record by a bill of exceptions. When filed 
 they become part of the record and may be 
 certified by the clerk on appeal in the same 
 manner as other matters of record : McGov- 
 ern v. Keokuk Lumber Co., 61-365; Witiet v. 
 Berryhill, 55-411. 
 
 76. An affidavit for publication, when 
 filed, becomes part of the record : Bradley v. 
 Jamison, 46-68, 73. 
 
 77. Evidence taken in short-hand: It is 
 the bettei- practice to preserve evidence which 
 is taken down in short-hand by a bill of ex- 
 ceptions. Whether it may be done by filing 
 the original notes and malting certified tran- 
 scripts therefrom, qucere. At any rate the 
 record must be made up in the court below: 
 State V. Hessian, 58-68. 
 
 78. The stenographer's report of the evi- 
 dence may be incorporated into the bill of 
 exceptions by a reference thereto, and be- 
 comes a part of such bUl of exceptions with- 
 out being transcribed. A transcript of such 
 note-s will only be necessary where a tran- 
 script of the record is required : Hampton v. 
 Moorhead, 63-91. 
 
 79. The provisions of Code, § 3777, as 
 amended, with reference to the taking down 
 of evidence by a stenographer, do not dis- 
 pense with formal bill of exceptions, and 
 such bill filed within the proper time, and 
 referring to the original notes or transcript, is 
 necessary in order to make the evidence a 
 part of the record on appeal: McCarthy v. 
 Watrous, 69-360. 
 
 80. The only way oral evidence introduced 
 on the trial of the cause can be preserved 
 and identified for the purposes of an appeal 
 is by bill of exceptions signed by the trial 
 judge. A paper purporting to contain a por- 
 tion of the evidence introduced on the trial, 
 and certified to by the official reporter, but not 
 embodied in the bill of exceptions, cannot be 
 recognized as a part of the transcript : State 
 V. Hemriok, 63-414. 
 
 81. The stenographer's notes, when filed 
 with the clerk as a part of the record of the 
 case, may be amended or corrected by the 
 court when it is ascertained in a proper pro- 
 ceeding that they do not fully or correctly 
 embody the action or proceeding of which 
 they were intended to be the record : Makaffy 
 V. Mahaffy, 63-55. 
 
 82. The filing of the stenographer's orig- 
 inal notes and the subsequent incorporation 
 of them into the bill of exceptions, and the in- 
 sertion of a duly certified copy thereof in 
 long-hand in the transcript, is sufficient to 
 make the evidence of record : McAnnulty v. 
 Seick, 59-586. 
 
 83. To i-ender a short-hand report of the 
 evidence a part of the record, it must be filed 
 with the clerk together with the reporter's 
 transcript thereof. It cannot be made of 
 record by being merely referred to in the bill 
 of exceptions, without being filed : Lowe v. 
 Lowe, 40-320. 
 
 84. Where the exception refers to the evi- 
 dence taken in the case by the official re- 
 porter, and certified to by the judge, " and 
 marked Exhibit A," the fact that neither the 
 original nor the translation of such notes is 
 marked Exhibit A will not prevent its being 
 considered a part of the record, it being oth- 
 erwise sufficiently identified : Miller v. Chi- 
 cago, M. & St. P. B. Co., 70 . 
 
 So. In order to make a transcript of the 
 reporter's notes a part of the record, they 
 should be certified by him to be a correct 
 transcript. A certificate of the judge to 
 such notes is not sufficient: Bickwrds v. 
 Lounesbury, 65-587. 
 
 And see further. Appeals, gg 1061-1065. 
 
 86. Instructions: By stfitutory provision 
 (Code, S 3789), instructions and the action of 
 the court thereon in giving or refusing them 
 constitute a part of the record, and need not 
 be set out in the bill of exceptions in order tc 
 
EXCEPTIONS, II. 
 
 747 
 
 Bills of. 
 
 bring them before the supreme court : Rob- 
 erts V. Leon Loan, etc., Co., 63-76. 
 
 87. The instructions when filed become a 
 part of the record and may be certified by 
 the clerk : Parker v. Middlefon, 65-800. 
 
 88. Where the giving and refusal of in- 
 structions and exception to such rulings are 
 noted on the margins of the insti'uctions, 
 the supreme court can review such i-ulings, 
 although they are not preserved by a bill of 
 exceptions : Wells v. Burlington, C. R. & N. 
 R. Co., 56-520. 
 
 89. While it is not essential that instruc- 
 tions should be preserved by bill of excep- 
 tions, when they have been filed and made 
 part of the record, yet it is essential that 
 they be certified by the clerk of the trial 
 court to the supreme court ; and if they can- 
 not be made a part of such transcript, error 
 in the giving of them cannot be considered : 
 Bonney v. Cocke, 61-303. 
 
 90. Before the enactment of the statutory 
 provision above referred to, it was held that 
 instructions were not a part of the record 
 unless made so by a bill of exceptions: 
 Parker v. Pierce, 4 G. Gr., 452; Claussen v. 
 La Franz, 1-226; Ewing v. Scott, 2-447; 
 Pierce v. Locke, 11-454. 
 
 91. And it was held that the fact that they 
 were set out in the motion for a new trial 
 did not render them matter of record so as 
 to dispense with a bill of exceptions : Har- 
 mon V. Chandler, 3-150. 
 
 92. When not required: A bill of excep- 
 tions makes that a part of the record which 
 was not so before. If the error appears with- 
 out it, there is no necessity for it : Eyser v. 
 Weissgerher, 2-463. 
 
 93. It is not necessary to preserve by a bill 
 of exceptions the decision on a demurrer, or 
 the judgment of the court : State v. Strong, 
 6-73. 
 
 94. A written agreement of facts signed by 
 the parties and filed becomes a part of the 
 record without being embodied in a bill of 
 exceptions : Black v. Howell, 56-630. 
 
 95. Written iiistrnments ; certifioale of 
 clerk: To make writings, etc., a part of the 
 record, they should be incorporated into the 
 biU of exceptions or plainly identified thereby. 
 They cannot be made a part of the x-ecord by 
 the mere certificate of the clerk : Oarber v. 
 Morrison, 5-476; Reed v. Hubbard, 1 G. Gr., 
 
 153; Jordan v. Quick, 11-9; State ex rel. v. 
 Jones, 11-11 ; Harmon v. Chandler, 3-150. 
 
 98. A paper which is not of itself a part 
 of the i-ecord cannot be made a part of the 
 recoi'd by being certified to by the clerk and 
 inserted in his transcript. It must be pre- 
 served by a bill of exceptions. An entry by 
 the judge in his private calendar, or even by 
 the clerk in his record, that a ruling was 
 made and that an exception was taken to 
 the ruling, is not such an exception as is con- 
 templated by law : State ex rel. v. Jones, 11-11. 
 
 97. Papers not identified by a bill of ex- 
 ceptions are not j)roperly a part of the record 
 although embraced in the transcript : Green 
 V. McFaddin, 5-549. 
 
 98. Exceptions entered by a judge upon 
 his calendar and not otherwise preserved are 
 not sufficiently made of record : Lewis v. May, 
 22-599. 
 
 99. In all cases where a written instru- 
 ment is referred to as connected with the 
 action of the court to which exception is 
 taken, it should be contained in the bill of 
 exceptions: Reed v. Hubbard, 1 G. Gr., 153. 
 
 100. Identification of instruments or evi- 
 dence : It is the safer practice, when excep- 
 tions ai-e taken in relation to any instrument 
 in writing, to copy the same into the bill of 
 exceptions, but if this is not done, it should 
 be so particularly described and referred to in 
 the bill as to enable the clerk to copy the 
 same without mistake into the record and to 
 enable the supreme court to i-efer to it with 
 positive certainty: Humphry v. Burge, 1 G. 
 Gr., 223. 
 
 101. A paper sought to be incorporated 
 into a bill of exceptions by description must 
 be designated and identified with clearness 
 and certainty : Sands v. Wood, 1-263 ; Bryan 
 V. State, 4-349. 
 
 102. The reference in a, bill of exceptions 
 to papers on file, not otherwise identifying 
 them, is not sufficient to make them apart of 
 the bill of exceptions: Freher v. Oeeseka. 
 5-472. 
 
 103. The statement in a bill of exceptions 
 that the plaintiff offered in evidence " the 
 transcript sued on " is not sufficiently definite 
 to identify the instrument offered in evi- 
 dence, although it was in fact the instru- 
 ment attached to the petition; Smith v. 
 Taylor, 11-214. 
 
748 
 
 EXCEPTIONS, II. 
 
 Bills of. 
 
 104. The fact that the bill of exceptions 
 refers to depositions marked as exhibits can- 
 not be sufiScieut to identify and make part 
 of the record depositions which are not iden- 
 tified by the certificate of the clerk or the 
 judge, or by any exhibit marks, as deposi- 
 tions read upon the trial: Pierce v. Locke, ll- 
 454. 
 
 105. Where the bill of exceptions stated 
 that the party filed a certain motion with affi- 
 davits attached, etc., held, that the mention 
 in the affidavits was not sufficient to make 
 them a part of the record : Moffit v. Rogers, 
 15-453. 
 
 106. Writings referred to in the bill of ex- 
 ceptions should be copied at length in their 
 proper place in the transcript : Ihid. 
 
 107. Although, if attached and clearly 
 identified, the writings referred to may be 
 embodied in the transcript without being 
 copied out in the bill of exceptions, the suf- 
 ficient and better plan is to follow the course 
 laid out and insert them in the bill : Lyons v. 
 Thompson, 16-62. 
 
 108. I£ the evidence or other papers at- 
 tached to the bill of exceptions are not suffi- 
 ciently identified therein, they will be disre- 
 garded : Van Orman v. Spafford, 16-186. 
 
 109. When the testimony is not in the 
 body of the bill of exceptions, and there are 
 disci-epancies in the paging or references 
 made, the supreme court will disregard it: 
 Burlington Gas Light Co. v. Oreen, 31-335. 
 
 110. Skeleton bills: A bill of exceptions 
 which does not contain the evidence, but di- 
 rects the clerk to "insert all the evidence, 
 rulings, objections and exceptions," does not 
 sufficiently identify such evidence, and it 
 may, upon motion, be stricken from the files: 
 Hill V, Holloway, 52-678. 
 
 111. A skeleton bill of exceptions which 
 does not identify the evidence which is to be 
 inserted, but merely directs the clerk to in- 
 sert all the evidence, or " plaintiff's evidence " 
 and " defendant's evidence," is not sufficient. 
 The clerk has no power to determine what is 
 to be inserted under such a direction. The 
 bill must so identify the evidence that a mis- 
 take of the clerk as to what is to be inserted 
 in the transcript may be readily corrected : 
 Tootle V. Phoenix Ins. Co., 62-362; Wilson 
 V. Tenant, 61-194. 
 
 112. A bill of exceptions directing the 
 
 clerk to copy as a part thereof the evidence 
 and the instructions given and refused, leav- 
 ing the clerk to determine what he shall 
 copy, and giving no means of identification 
 whereby he may be directed what papers he 
 shall copy, and whereby errors, if any should 
 be made, could be corrected, is not sufficient to 
 make the evidence thus referred to a part of 
 the record. The bill should identify the dif- 
 ferent papers intended to be made a part of 
 the record : Wells v. Burlington, C. E. & N. 
 R. Co., 56-520. 
 
 113. A bill of exceptions in which the 
 clerk is merely directed to insert the evi- 
 dence, without such evidence being other- 
 wise identified, is not sufficient : Loclcard v. 
 Chicago, St. P., M. & O. R. Co., 60-250; 
 Williams v. Williams, 69-715; Parks v. 
 Council Bluffs Ins. Co., 70—. 
 
 114. A bill of exceptions, though a skel- 
 eton bill in form, is sufficient if it only refers 
 to the short-hand report of the evidence, and 
 directs the evidence thus referred to to be in- 
 serted : Glenn v. Gleason, 61-28. 
 
 115. A skeleton bill of exceptions which 
 sufficiently identifies the evidence which is to 
 be inserted therein, as, for instance, by a 
 proper reference to the notes or transcript of 
 the evidence as taken down by the short- 
 hand reporter and filed with the clerk, will 
 make such evidence a part of the record: 
 McCarthy v. Watrous, 69-260. 
 
 116. Where the bill of exceptions directed 
 the clerk to insert the transcript of the evi- 
 dence produced and offered by plaintiff, con- 
 tained in the reporter's notes, filed in the 
 office of the clerk of the court, held, that 
 such identification was sufficient, although 
 the transcript was not on file when the bill of 
 exceptions was signed, it being filed, however, 
 when the bill was filed : Gardner v. Burling- 
 ton, C.R.&N. R. Co., 68-588. 
 
 1 1 7. A bill of exceptions referred to the 
 evidence in the following manner ; " The fol- 
 lowing rulings were had and reduced to writ- 
 ing by said reporter, being all the testimony 
 in said trial. Here insert evidence in full:" 
 held to sufficiently indentify the evidence: 
 Wiison V. First Presb. Church, 60-112. 
 
 118. Where the bill of exceptions directed 
 the clerk to insert the instructions given by 
 the court on its own motion, and such in- 
 structions were incorporated by the clerk 
 
EXCEPTIONS, II. 
 
 749 
 
 Billa of. 
 
 in the transcript, held, that it would not be 
 presumed that instructions were given by the 
 court other than on its own motion, and there- 
 fore that it would be considered that all the 
 instructions givea were before the court, and 
 that the identification of the instructions in 
 the skeleton bill of exceptions was sufficient : 
 King v. Barber, 61-674. 
 
 Hi). Tlie evidence may be sufficiently in- 
 corporated into the bill of exceptions by 
 reference to the stenographer's report of the 
 evidence, whether such report is certified by 
 the reporter or not. A transcript or e.'cten- 
 sion in long-hand of the reporter's notes is 
 not necessary to complete the bill of excep- 
 sions, and is not necessary unless a transcript 
 is required: Hampton, v. Moorhead, 63-91. 
 
 120. Where the original notes of the re- 
 porter are filed, and the reporter has therein 
 marked and identified, in writing, the papers 
 offered in evidence, and the clerk is directed 
 to insert in the bill of exceptions all exhibits 
 referred to and identified by said repcu'ter, 
 the written evidence offered is sufficiently 
 identified to become a part of the record : 
 Mansonv. Ware, 63-315. 
 
 121. Certiflcate of judge: A certificate of 
 the judge showing the several rulings made 
 during the trial as to tlie admission or ex- 
 clusion of evidence, and that tlie same were 
 duly excepted to, is sufficient as a bill of ex- 
 ceptions: State V. Fay, 43-651; Hay v. Fra- 
 zier, 49-454. 
 
 122. While a certificate of the judge to 
 the evidence, that it is all the evidence offered 
 and received on the trial of the case, is a suffi- 
 cient compliance with the statute respecting 
 bills of exception, yet this certificate must 
 be filed within the time prescribed, and if 
 not so filed will be disregarded and stricken 
 from the record: Oibbs v. Buckingham, 48- 
 96; State v. Newcomb, 56-335; McCarthy v. 
 Watrmis, 69-260. 
 
 123. L'pou .jiidije's own motion: A judge 
 may, on his own motion and without the re- 
 quest of either party, make and file a bill of 
 exceptions, but the party should have notice 
 of, it. Such notice, however, will be pre- 
 sumed in the absence of a contrary showing : 
 Shepherd v. Brenton, 15-84. 
 
 1^4. Bill cannot (le coiitr.idicteii: A bill 
 of exceptions, when signed and filed, becomes 
 A part of the record, and the judge cannot 
 
 change or modify it by a contradictory state- 
 ment or certificate. Where a party lias ex- 
 cepted to rulings upon the evidence when 
 made and has not waived his objection, and 
 his bill of exceptions is filed within the time 
 allowed by law or agi'eed upon between the 
 parties, it is competent for him to embody in 
 it all gi-ounds of objection upon which he de- 
 sires a review of tlie cause, and to waive such 
 others as he sees fit: Dedric v. Hopson, 63- 
 562. 
 
 125. The recoi'd entry of a verdict by the 
 clerk is higher evidence thereof than the biU 
 of exceptions embodying such verdict. It is 
 not strictly the office of the bill of exceptions 
 to show the amount of the verdict : Cook v. 
 United States, 1 G. Gr., 56. 
 
 126. Where there are affidavits and coun- 
 ter-affidavits as to the action of the court, the 
 recitals of the bill of exceptions will be relied 
 upon as stating the facts : Shepherd v. Bren- 
 ton, 15-84. 
 
 127. Not cevtifipd: A paper purporting to 
 be a biU of exceptions and not certified as a 
 part of the record cannot be considered: 
 Conrad v. Baldwin, 3-207. 
 
 128. Impeiichnieiit: A witness' testimony, 
 as embodied in a biU of exceptions, cannot be 
 introduced on a subsequent trial to impeach 
 him : Boyd v. First Nat. Bank, 35-255. 
 
 129. Tiine for tiling: It is not error to re- 
 fuse to stop a trial for the purpose of allowing 
 a party to prepare a bill of exceptions, when 
 time is granted within which to prepare the 
 same: Anson v. Dwight, 18-341; Hanan v. 
 Hale, 7-153. 
 
 130. Where, pending the argument of a 
 motion for a new trial by the party applying 
 therefor, the court adjourned without giving 
 an opportunity to file a bill of exceptions, 
 held, that the action of the court could not 
 be reviewed on affidavits : Campbell v. Ayres, 
 4-358. 
 
 131. Where a motion in arrest and for a 
 new trial has been continued to a succeeding 
 term, it is sufficient to embody the excep- 
 tions into one bill and have it signed by the 
 judge, unless dissent of the opposite party is 
 shown: Courtney v. Carr, 11-295. 
 
 132. In the absence of an express agi-ee- 
 ment or consent, the judge has no power to 
 sign a bill of exceptions after the final ad- 
 journment of the term (Code, g 2831): Clag- 
 
750 
 
 EXCEPTIONS, II. 
 
 BiUs of. 
 
 gett V. Gray, 1-19; State v. Orwig, 34-112; 
 Hahn v. Miller, 60-96: Gates v. Brooks, 69- 
 510 ; Gibbs v. Buckingham, 48-96. 
 
 133. A bill of exceptions may, by agree- 
 ment of parties, be settled and signed after 
 the conclusion of the term : Harrison v. 
 Charlton, 42-513 ; Dedric v. Hops;n, 62-562. 
 
 134. If time for iiling the bill of exceptions 
 is extended b}- consent, it must be filed 
 within the time so given, and will not be 
 considered if filed afterwards : Lynch v. Ken- 
 nedy, 42-220; Lloyd v. Beadle, 43-659; St. 
 John V. Wallace, 25-21 ; Frost v. Senior, 44r- 
 706; Parmenter V. Elliott, 45-317; Lelandv. 
 Weddington, 54-698 ; Hahn v. Miller, 00-96 ; 
 Mineral Ridge Coal Co. v. Smith, 68-561. 
 
 135. A bill of exceptions signed after the 
 expiration of the term or after the time al- 
 lowed for that purpose, if the time has been 
 extended, will be stricken out on motion iii 
 the supreme court: Lynch v. Kennedy, 42- 
 220; Gibhs v. Buckingham, 48-96; Templin 
 V. Exchange Bank, 69-149; McCarthy v. 
 Watrous, 69-260. 
 
 136. If not filed within the time prescribed 
 in the order of court extending the time, the 
 bill will be disregarded, or stricken from the 
 record: McFarland v. Folsom, 61-117. 
 
 137. Where thirty days was agreed upon 
 to settle a bill of exceptions, and no showing 
 was made of a proper effort to settle the 
 same within the time fixed, held, that with- 
 out such showing a party could not have the 
 benefit of exceptions signed by the judge 
 after that time, and that he was in no better 
 position when it was thus signed by by- 
 standers: St. Johnv. Wallace, 25-21. 
 
 138. Filing: The time when a bUl of ex- 
 ceptions was filed by the clerk is immaterial, 
 if it duly appears that such bill was ordered 
 by the court to be made a part of the record : 
 Jon&s V. Hockman, 12-101. 
 
 139. Under an agreement to prepare ex- 
 ceptions by a given time, held, that the pres- 
 entation of exceptions to the judge was 
 sufficient, although they were not filed until 
 within a few days after the time had ex- 
 pired: Humphry v. Surge, 1 G. Gr., 223. 
 
 140. Where the time was extended to a 
 day beyond the term, by consent, for signing 
 and filing a biU of exceptions, and the bill 
 was signed by that date, but not filed, held, 
 that it was not valid, and the judge could 
 
 not, by order made in vacation at the time of 
 signing, direct that it be made a pai't of the 
 record : Cobb v. Chase, 54-196. 
 
 141 . Where it appears that within the timr 
 allowed for settling and filing a biU of excep- 
 tion said bill was signed, but it does not ap- 
 pear, except by statement in the abstract, not 
 based upon matter of record, that such bill 
 was filed with the clerk, the supreme court 
 cannot consider it : Anderson v. Leaverich, 
 70 . 
 
 142. Change of entry at succeeding term : 
 The subsequent verbal alteration of an order 
 or judgment made on approving it at a sub- 
 sequent term will not entitle the party to a 
 bill of exceptions at that term, including ob- 
 jections raised at the trial : State v. Orwig, 
 34-112. 
 
 143. What sufficient signing: A bill of 
 exceptions, signed with the last name of the 
 judge, the final designation "judge" being 
 added, if properly certified by the clerk, will 
 be p»esumed to have been signed by the 
 judge and filed in the case in which the cer- 
 tificate is given : Mays v. Leaver, 1-216. 
 
 144. Presumption: Where it appears that 
 the bill of exceptions was signed within 
 proper time and it is made part of the tran- 
 script, it will be presumed, in the absence of 
 all showing to the contrary, that it was filed 
 within the proper time: Wilson v. First 
 Presb. Church, 60-113. 
 
 145. Where the bill of exceptions is silent 
 as to when it was settled, it will be presumed 
 that it was taken in trial term i-egularly, or 
 settled by agreement without reference to 
 the time of filing ; and if consent to an exten- 
 sion of time beyond the term is shown, it 
 will be presumed that the bill was reduced to 
 form and made part of the record within the 
 time contemplated by law. But if it appears 
 to have been taken in vacation, and assent is 
 not shown, the bill will be stricken from the 
 record upon objection properly made : Clag- 
 gett V. Gray, 1-19. 
 
 146. Refusal of judge to sign: It is not 
 proper, by proceedings in mandamus, to con- 
 trol the discretion of the trial judge in re- 
 gard to proceedings which ai-e to be shown 
 by bill of exceptions. If the parties have 
 agreed to extend the time for filing a bill un- 
 til it is too late to have a bill signed by by- 
 standers, they must rely upon the discretion 
 
EXECUTIONS, I. 
 
 7f.l 
 
 Issuance, stay, etc. 
 
 of the judge: Jamison v. Eeid, 2 G. Gr., 
 394. 
 
 147. Signing by by-standers: The only 
 remedy, when the court refuses to sign a bill 
 of exceptions or signs an incorrect one, is by 
 the signature by by-stand ers to a correct bill 
 as authorized by Code, § 2835. A bill cannot 
 be impugned by affidavits: VVoodtcorth v. 
 Byerly, 43-106. 
 
 148. Where a bill of exceptions is signed 
 by by-standers, it should be drawn up and 
 signed at the time of the trial : Clark v. Par- 
 vin, Mor., 371. 
 
 149. Where time beyond the term has 
 been given for filing the bill, that method 
 does not obtain: St. John v. Wallace, 2.5-81. 
 
 150. The attorneys of a party are not 
 proper persons, as by-standers, to sign a bill 
 of exceptions of such pan'ty : Ibid. : Simon i\ 
 Weigel, 16-505. 
 
 151. It is not necessary that the judge cer- 
 tify to his refusal to sign the bill of excep- 
 tions. That fact may be proved by the 
 evidence of the by-standers, as here pro- 
 vided: Craig V. Andrews, 7-17. 
 
 152. A bill of exceptions signed by by- 
 standers is not sufficient if it merely states 
 what they understand the action of the court 
 to be: Clark v. Parvin, Mor., 371. 
 
 153. To authorize a bill of exceptions 
 signed by by-standers, it must appear that the 
 judge refused to sign it: Edgar v. Caldwell, 
 Mor., 434. 
 
 154. Where a judge refuses to sign a cor- 
 rect bill of exceptions, the only remedy is 
 by obtaining the signatures of by-standers. 
 Whether this method can be pursued where 
 the time to file a bill of exceptions is ex- 
 tended beyond the term, qucere. But if the 
 party accepts the incoiTeot bill and prosecutes 
 his appeal therefrom, and judgment is ren- 
 dered against him, he cannot upon such facts 
 obtain relief from such judgment in an ac- 
 tion in equity : Bellows V. Tod, 52-859. 
 
 EXECUTIONS. 
 
 I. Issuance, stay, etc. 
 II. Levy and eetuen ; indemnifying bond ; 
 
 EXEMPTIONS. 
 
 a. What property subject to levy. 
 
 b. The levy. 
 
 c. The return. 
 
 d. Exemptions, 
 
 III. Sale. 
 
 rv. Eights of puechasee; assignment C'F 
 
 CEETIPICATE; DEED. 
 
 V. Redemption, 
 
 As to an injunction to restrain the enforce- 
 ment of an execution, see lN.njNCTiONs, 
 
 §§ 54^78. 
 
 I. Issuance, sTAr, etc. 
 
 1. No notice of the issuance of execution 
 need be given the defendant therein : Ayres 
 V. Campbell, 9-213. 
 
 2. Within what time may issne: At com- 
 mon law, if execution was not sued out 
 within a year and a day after judgment, it 
 was presumed that the judgment was satis- 
 fied or execution released, and a proceeding 
 by scire facias was necessary before execu- 
 tion could afterwards issue: Von Puhl v. 
 Rucker, 6-187. 
 
 3. Under the statute, execution on a judg- 
 ment of a court of record may issue at any 
 time within twenty years, but as the lien of 
 such judgment upon real property termi- 
 nates at the end of ten years, an execution 
 on the judgment after that time only oper- 
 ates as a lien upon real property from the 
 time of levy : Stahl v. Boost, 34r47o. 
 
 4. Execution on a judgment of a justice 
 of the peace cannot issue after the expira- 
 tion of ten years unless a transcript thereof 
 has been filed in the office of the clerk of th« 
 circuit court : Givens v. Campbell, 20-79. 
 
 5. Where the time within which an exe- 
 cution might be issued upon a judgment 
 was extended by statute, held, that such 
 statute was applicable to judgments already 
 in existence and extended the time within 
 which execution might be issued thereon: 
 Cfray v. Iliff, 30-195. 
 
 6. Judgment essential to validity: If 
 there is no valid existing judgment when 
 the execution is issued, it is void : Balm r. 
 Nunn, 63-641. 
 
 7. But one execution : The statutory pro- 
 vision that but one execution can be in ex- 
 istence at the same time is mandatory and 
 not merely directory. Nevertheless it may 
 be waived by the party for whose benefit it 
 is enacted : Merritt v. Graver, 61-99. 
 
 8. The mere issuance of a second writ be- 
 fore the return of the prior execution under 
 
r52 
 
 EXECUTIONS, I. 
 
 Issuance, stay, etc. 
 
 which the levy has been made is not of 
 itself sufHcient to establish the abandonment 
 of such levy: West v. St. John, 63-287. 
 
 9. A second execution should not be issued 
 until a levy under a prior execution has been 
 disposed of: MeWilliams v. Myers, 10-325. 
 
 10. Issuance to another connty: The 
 statutory provision that when execution is- 
 sues to a county other than that in which 
 the judgment is rendered, a transcript of 
 the judgment must be filed in the office 
 of the clerk of the district court of such 
 county, is directory only, and a sale of lands 
 in one county may be made on an execution 
 issued from another county without the filing 
 of the transcript provided for. The effect of 
 failure to file the transcript will be that the 
 levy and sale under the execution will not 
 impart constructive notice to a subsequent 
 purchaser of the property before the record- 
 ing of the sheriff's deed. But actual notice 
 of the proceedings will supply the want of 
 such record notice : Hubbard v. Barnes, 29- 
 239; MeOinnisv. Edgell, 39-419. 
 
 1 1. When the sheriff's deed is recorded in 
 pursuance of such a sale, it will operate as 
 constructive notice of the title of the pur- 
 chaser, although a transcript of the judg- 
 ment was not filed: Foreman v. Higham, 
 35-382. 
 
 12. Execution cannot be issued on the 
 transcript. It must issue from the court 
 originally rendering the judgment: Seaion 
 V. Hamilton, 10-394; Furman v. Dewell, 35- 
 170. 
 
 13. Form: While an execution must pur- 
 sue and be warranted by the judgment, yet a 
 mere irregularity as to date will not render 
 a sale thereunder void. If it so describes and 
 identifies the judgment as to render certain 
 the authority on which it is issued, it is 
 sufficient to vest the sheriff with power to 
 sell: Sprottv.Reid, 3 G. Gr., 489. 
 
 14. An execution which did not state the 
 amount to be made out of the property, but 
 which contained a statement of the sum due 
 under the decree, held sufficient: Cooley v. 
 Brayton, 16-10. 
 
 15. A simple variance between the execu- 
 tion and judgment held not sufficient to 
 affect the validity of the sale : Cunningham 
 V. Felker, 26-117. 
 
 16. An execution showing that the judg- 
 
 ment under which it was issued was recovered 
 before a person described by name, but not 
 stated to be a justice of the peace, held not 
 sufficient to render the writ void, where the 
 writ was so described and identified as to 
 render certain the authority on which it 
 was issued : Deaji V. Ooddard, 13-292. 
 
 17. An execution from a justice of the 
 peace specifying who recovered the judg- 
 ment, and against whom it was recovered, 
 but not the names of the parties, lield suffi- 
 cient : Williams v. Broum, 28-247. 
 
 18. In a particular case, held, that the exe- 
 cution sufficiently referred to the judgment 
 and stated the matters necessary to be stated 
 as required by statute : Burdich v. Shigley, 
 30-63. 
 
 19. In whose name to issr.e: Execution 
 can only issue in the name of the judgment 
 creditor except in case of his death, bank- 
 ruptcy, or the like. It cannot issue in the 
 name of the assignee of the judgment : Cor- 
 riell V. Doolittle, 2 G. Gr., 385. 
 
 20. The assignment of the judgment car- 
 ries with it as a necessary incident the right 
 to use the name of the party in whose favor 
 the judgment was rendered, for the purpose 
 of issuing execution: UlcWilliams v. Myers, 
 10-325. 
 
 21. In case of plaintiff's death: An exe- 
 cution issued in the name of a deceased 
 plaintiff without the indorsement provided 
 for by statute in such case (Code, § 3130) may 
 be enjoined: Meek v. Bunker, 3.3-169. 
 
 22. Where action is brought, by mistake, 
 in the name of a deceased person, and judg- 
 ment is rendered and sale had thereunder, 
 the proceedings are invalid : White v. Secor, 
 58-533. 
 
 23. Death of defendant: At common law 
 an execution cannot be issued on a judgment 
 after the death of defendant therein, and 
 sales made in pursuance of such execution 
 are void, and this rule is recognized by stat- 
 ute (Code, § 3133). The fact that the prop- 
 erty levied on under the execution is already 
 held by the sheriff by writ of attachment 
 levied before the death of the judgment 
 debtor will not affect the rule : Welch v. Bat- 
 tern, 47-147. 
 
 24. The death of defendant after levy, but 
 before sale, cannot be shown for the purpose 
 of defeating the sale. So held where the 
 
EXECUTIONS, I. 
 
 T53 
 
 Issuance, stay, etc. 
 
 judgment was in partition for costs and was 
 made a special lien upon the shares of the 
 property of vendee: Sprott v. Reid, 3 G. Gr., 
 489. 
 
 25. A judgment against a person after- 
 wards deceased should be filed with claims 
 against the estate and approved as a claim of 
 the fourth class, within the time specified in 
 Code, g 2420, in order to secure payment out 
 of the personal estate. If not thus filed, the 
 action authorized by statute (Code, § 3092) 
 to subject real property of decedent to ex- 
 ecution thereon cannot be maintained : Bay- 
 less V, Powers, 62-601. 
 
 26. Alteration: Where it appeared that 
 the name of the execution debtor had been 
 changed in the execution, and it was sought 
 to defeat the sale on the ground of such 
 alteration, held, that it would not be pre- 
 sumed that the alteration was fraudulently 
 made by one not authorized to make it, and 
 after the sale, but that the sale would be up- 
 held: Preston v. Wright, 60-351. 
 
 27. Recall by court: Where a general ex- 
 ecution was improperly issued on a judgment, 
 held, that on motion of defendant an order 
 should have been granted in the court in 
 which the judgment was rendered, recalling 
 the execution and releasing the levy made 
 thereunder : Mayfield v. Bennett, 48-194. 
 
 28. General: Under a statutory provis- 
 ion (Revision, § 8664, now repealed), author- 
 izing the judgment in an action at law upon 
 a note secured by mortgage to be declared a 
 lien from the date of the recording of the 
 moi'tgage, held, a general and not a special 
 execution on such judgment was contem- 
 plated : Mayer v. Farmers' Bank, 44-313. 
 
 2i). Special: A special execution may be 
 issued in case of property held under attach- 
 ment to await the rendition of judgment, al- 
 though the judgment be general and no 
 particular allowance of a special execution be 
 made therein: Corriell v. Doolittle, 2 G. Gr., 
 885. 
 
 30. A special execution under decree of 
 foreclosure of a mortgage on a town lot, 
 commanding the sheriff to sell the lot in 
 conformity with the statute, held not to be 
 illegal as requiring the whole lot to be sold : 
 Southard v. Perry, 21-488. 
 
 31. Where a special execution was im- 
 properly issued and a sale was had there- 
 
 VOL. 1 — 48 
 
 under, but the same sale under a general 
 execution would have been equally effective, 
 held, that the error as to the form of execu- 
 tion was purely technical and the sale could 
 not be set aside: CConnell v. Cotter, 44r-48. 
 
 32. Where attached property is sold it will 
 be presumed that it was sold under special 
 execution as provided by statute: Peterson v. 
 Foil, 67-403. 
 
 Further as to special execution against at- 
 tached property, see Attachment, §g 334, 335. 
 
 33. Proceedings for contempt: The proper 
 method of enforcing obedience to a continu- 
 ing order in the nature of a mandatory in- 
 junction is by attachment for contempt: 
 State V. Baldwin, 57-266. 
 
 34. Failui'e to pay money awarded as tem- 
 porary alirdony in a divorce suit, and for 
 which judgment has been entered, cannot be 
 treated as a contempt : Baily v. Baily, 69-77. 
 
 35. A certified copy of an order appointing 
 a receiver and directing him to take posses- 
 sion of property serves the same purpose as 
 the writ itself, and a resistance to the receiver 
 acting thereunder wUl constitute a resistance 
 to the execution of an oi'der of court : State 
 V. Rivers, 66-653. 
 
 36. Auxiliary proceedings: The provis- 
 ions of He v., §§ 3375-3390, for compelliug the 
 judgment debtor to appear and answer as to 
 his property, and to deliver in satisfaction of 
 the execution any property thus discovered, 
 on penalty of contempt, were held unconsti- 
 tutional, not because providing for imprison- 
 ment for debt, but as authorizing the deter- 
 mination in a summary proceeding, without 
 a jury, and in a court of inferior jurisdiction 
 (the county court), of questions as to liability 
 of property, etc., not adjudicated in the 
 original judgment, and the enforcement by 
 imprisonment of an order made in such pro- 
 ceedings : Ex parte Grace, 13-208. 
 
 37. But the present provisions (Code, 
 §§ 3135-3149), by which a party found, upon 
 such examination, to have property not ex- 
 empt from execution which he refuses, upon 
 order of the court, to apply to the satisfac- 
 tion of the judgment, can be imprisoned for 
 contempt in the violation of such order, are 
 constitutional, the proceedings provided for 
 being required to be before a court of general 
 jurisdiction or a judge thereof : Eikenberry 
 V. Edwards, 67-619. 
 
754: 
 
 EXECUTIONS, I. 
 
 Issuance, stay, etc. 
 
 38. By Code, g§ 8150-3153, equitable pro- 
 ceedings may be brought to subject equitable 
 interests of defendant ia real property to the 
 satisfaction of tlie judgment, and under such 
 proceeding a lien upon sucli an interest may 
 be acquired which shall be superior to the 
 lien of a prior judgment against defendant : 
 Bridgman v. McKissick, 15-260. 
 
 39. Stay of execution: The privilege of 
 staying the judgment is extended to any one 
 who, being a party to the proceeding, has 
 such an interest as that, in equity, as be- 
 tween liim and the judgment debtor, he may 
 be compelled to pay the debt. Therefore, 
 held, that a subsequent purchaser of mort- 
 gaged premises, who had assumed the pay- 
 ment of the incumbrance, might stay a judg- 
 ment against the original mortgagor under a 
 foreclosure proceeding to which both were 
 parties : Moses v. Clerk of Court, 12-139. 
 
 40. While the legislature may abridge or 
 take away the right to a stay of execution 
 existing when the contract was made or the 
 judgment rendered, the intention to do so 
 should be clearly expressed, and where the 
 time during which stay might be applied for 
 was abridged, held, that in the absence of 
 any expression of an intention to the con- 
 trary, the new statute was not applicable to 
 the time witlain widch stay might be taken 
 as to judgments existing at the time of the 
 change : Du Boise v. Bloom, 38-512. 
 
 41. Under a prior statute which did not 
 forbid stays of judgment on appeal, held, 
 that the provisions as to stay ajiplied also to 
 judgments in the supreme court : Peoria F. 
 & M. Ins. Co. V. JDickerson, 29-98. 
 
 43. Approval of stay bond : The question 
 as to whether a bond is good is not judicial, 
 and the clerk is liable for failure to use rea- 
 sonable care in ascertaining the sufficiency 
 of the security before accepting a bond. Tlie 
 fact tliat the surety makes affidavit, etc., does 
 not release tlie officer from such liability, 
 and he may refuse the bond, although the 
 affidavit is made : Hubbard v. Switzer, 47- 
 081. 
 
 43. A right of action against the clerk for 
 damages arising from his fault in approving 
 a stay bond does not accrue until the expira- 
 tion of the stay ; and so the right of action 
 by the clerk against his deputy for fault of 
 the latter in making such approval arises at 
 
 the same time. In the latter action it is no 
 defense for the deputy that his principal had 
 previously approved bonds signed by the 
 same surety : Moore v. McKinley, 60-367. 
 
 44. Failure of the clerk to require the 
 sureties to justify will not defeat the stay : 
 Du Boise v. Bloom, 38-512. 
 
 45. Appeal waived: The right of appeal is 
 waived by taking a stay : Seacrest v. New- 
 man, 19-333. 
 
 4C. Even though stay of execution is not 
 taken in the form prescribed by statute, yet 
 if, by consent of the parties, judgment ia en- 
 tered, so that there is a stay under a sub- 
 stantial waiver of further proceedings, an 
 appeal should not be allowed: Warford v. 
 Eads, 10-592. 
 
 47. Liability of sureties: The statutory 
 provision (Code, § 3064), that the stay bond 
 shall have the effect of a judgment confessed 
 from the date thereof against the property 
 of the sureties, is not obnoxious to the objec- 
 tion that it deprives the parties on the bond 
 of the right to trial. Such right of trial is 
 waived by the execution of the bond : Caven- 
 der V. Smith's Heirs, 5-157, 186. 
 
 48. Under previous statutory provisions 
 somewhat different from the present, held, 
 that a stay bond, although filed, would not 
 become a lien on the property of a surety as 
 against persons not having actual notice, un- 
 less entered of record as provided by statute : 
 Waldron v. Dickerson, 53-171. 
 
 49. The determination of the clerk, as to 
 whether the bond is filed within the time re- 
 quired by statute, or whether the filing 
 within the time specified is essential to its 
 validity, in a case where such question arises, 
 is a judicial act, and an error in his decision 
 on that question will render a judgment 
 against the sureties voidable only and not 
 void: Maynes v. Broekway, 55-457. 
 
 50. Where an instrument intended as a 
 bond for stay of execution is accepted and 
 approved, and recorded as such by the clerk, 
 it has the force and effect of a judgment 
 against the property of the sureties, and can- 
 not be questioned in a collateral proceeding 
 by proof that it was not given until long 
 after the expiration of the period for taking 
 such stay, or that the cause was one in which 
 a stay was not allowable : Wishard v. Biddle, 
 64-526. 
 
EXECUTIONS, ir, a. 
 
 755 
 
 Levy and i-eturn. — What property subject to levy. 
 
 51. Where a stay bond was accepted by 
 the clerk but not recorded, held, that although 
 as between the parties it became a lien upon 
 the property of the sureties, subsequent 
 mortgagees and purchasers without notice 
 were not affected thereby : Waldron v. Diclc- 
 erson, 52-171. 
 
 53. Execution alter stay: Delay in issuing 
 execution after expiration of stay does not 
 discharge the lien of the judgment : Parish 
 V. Elwell, 46-162. 
 
 53. Consent of sureties to stay: Unless 
 the surety in the original judgment objects 
 to the granting of a stay thereof (as he is 
 authorized to do by Code, g 3068), he wUl be 
 presumed to have consented to the stay, and 
 thereby to have waived the right to redeem 
 his property if sold under execution, no right 
 to redemption being allowed fi-om a sale un- 
 der a judgment which has been stayed (Code, 
 §3102): Chase V. Welty, 57-230. 
 
 54. Agreement to stay: Whether a judg- 
 ment absolute on its face can be affected by 
 an antecedent or contemporaneous independ- 
 ent collateral agreement to stay execution, 
 qumre: Tousey v. Bishop, 33-178. 
 
 n. Levy and eetuen; indemnifying 
 bond; exemptions. 
 
 a. What jproperty subject to levy. 
 
 55. Property which may be seized: The 
 
 general rule is that the right to seize and sell 
 is co-extensive only with the power to take 
 and deUver possession : Campbell v. Leonard, 
 11-489. 
 
 56. Mortgagor's interest: Therefore, the 
 interest of a mortgagor in personal property 
 in possession of the mortgagee is not such 
 that it can be levied on under execution: 
 Ibid. ; Gordon v. Hardin, 33-550 ; Vanslyck 
 V. Mills, 34-375. 
 
 57. Where the mortgagor of chattels is in 
 possession for a definite time, his interest 
 prior to the expiration of such period is sub- 
 ject to levy under execution: Rindskoff v. 
 Lyman, 16-260. 
 
 58. But it is otherwise where the mort- 
 gagee may take possession at his pleasure, or 
 when the right of the mortgagor to posses- 
 sion is for no definite period : Ibid. ; Wells v. 
 Sdbelowitz, 68-338. (But now see 31 G. A., 
 ch. 117.) 
 
 Further as to levying upon the mortgagor's 
 interest in chattels, see Chattel Mortgages, 
 gg 111-116, 133, 133. 
 
 59. Interest of pledgor: The pledgee 
 under a valid pledge has a right to the prop- 
 erty prior to that acquired thereon by levy 
 of execution against the pledgor with knowl- 
 edge of the pledgee's rights : Reeves v. Sebem, 
 16-384. 
 
 60. Leasehold interest: A leasehold in- 
 terest is subject to sale under execution: 
 Sweezy v. Jones, 65-373. 
 
 61. But the rights of a tenant in posses- 
 sion, with oxrtion of purchasing, are not 
 greater than a leasehold interest, and cannot 
 be sold distinct therefrom : Ibid. 
 
 62. An equitable interest in real prop- 
 erty, which is a matter of record, may be 
 sold under execution without an equitable 
 action being brought to subject it to the 
 judgment: lAppencott i\ Wilson, 40-435. 
 
 63. A building erected by one person upon 
 land of another under a parol license, being 
 chattel property, may be sold by a constable 
 under execution from a justice of the peace : 
 Walton V. Wray, 54-531. 
 
 64. Real property of a person deceased 
 cannot be seized under a judgment recovered 
 in an action against the administrator. Such 
 sale would not be binding against the heirs : 
 Lepage v. McNamara, 5-134. 
 
 65. The right of redemption and posses- 
 sion during the redemption period which a 
 debtor has in property which has been sold at 
 judicial sale is subject to levy and sale, at 
 least in a case where the debtor would not be 
 entitled to redeem from a second sale, and a 
 surety may require that such property be 
 subjected to the payment of the debt before 
 his property is levied on: Barnes v. Cava- 
 nagh, 53-27. 
 
 And see infra, §§ 431-436. 
 
 66. Property intended for special use is 
 subject to a levy although it cannot there- 
 after be applied to such use and does not 
 realize on sale the amount of money it 
 would have brought for use for the pur- 
 pose intended. In such case the officer wUl 
 not be liable for the damage resulting, if 
 the levy is rightful: Coffey v. Wilson, 65- 
 270. 
 
 67. Property in the hands of a receiver 
 appointed by a court is not liable to seizure 
 
756 
 
 EXECUTIONS, n, a, b. 
 
 "What property subject to levy. — The levy. 
 
 by an officer under execution: Martin v. 
 Davis, 31-535. 
 
 68. Judgments cannot, except by special 
 statutory provision (Code, § 3046), be levied 
 on and sold as property, but garnishment of 
 the judgment debtor would be the proper 
 remedy : Oshorn v. Cloud, 23-104. 
 
 69. Although by express statutory pro- 
 visions a judgment may now be levied on 
 and sold under execution, it is nevertheless 
 a debt and not to be reached under attach- 
 ment by a levy, but only by garnishment : 
 Ochiltree v. Missouri, I. & N. R. Co., 49- 
 150. 
 
 70. Where an agent recovers a judgment 
 in his own name, but for the benefit of the 
 principal, and to which the principal is en- 
 titled, such agent has no interest therein 
 ■which can be subjected to his debts : Beaver 
 Valley Bank v. Cousins, 67-310. 
 
 71. Negotiable notes may, by the above 
 statutory provision, be taken and sold by in- 
 dorsement, and such transfer will vest the 
 transferee with a title discharged of infirmi- 
 ties: Earhart V. Oant, 33-481. 
 
 72. Bonds of a railroad company which 
 had been negotiated and afterwards bought 
 back by the company but not delivered to it, 
 held subject to be levied on by execution 
 against the company : Hetherington v. Hay- 
 den, 11-335. 
 
 73. Garnishment under execution: 
 There is no provision requiring notice of the 
 garnishment proceeding to be served on the 
 judgment debtor, and the court may proceed 
 in such cases against the garnishee without 
 having jurisdiction of such debtor : Smith v. 
 Dickson, 58-444. 
 
 74. If the judgment on which the execu- 
 tion was issued, although voidable for error 
 on appeal, is not void, it is sufficient to pro- 
 tect the garnishee, and he cannot object 
 thereto: Houston v. Walcott, 1-86. 
 
 75. The proceeding by garnishment does 
 not obtain where the creditor seeks to sub- 
 ject the real estate of his debtor in the hands 
 of third persons to the payment of his debts. 
 The provisions for garnishment under execu- 
 tion relate to personal property, and not to 
 proceedings where the equitable interest of 
 the debtor in real property is sought to be 
 reached : Seymour v, Kramer, 5-285. 
 
 Further as to Garnishment, see that title. 
 
 b. The levy. 
 
 As to levy under writ of Attachment, see 
 that title, V. 
 
 76. No notice of a levy need be given to 
 the execution defendant : Ayres v. Campbell, 
 9-213. 
 
 77. TVliat acts necessary: In order to make 
 a legal and valid levy upon personal property, 
 the officer must take possession and control, 
 by doing such acts as that, but for the pro- 
 tection of the writ, he would be liable in tres- 
 pass therefor. Levy upon property which 
 remained locked in an outbuilding, the key 
 of which was in possession of the debtor, 
 held not sufficient : Bix v. Silknitter, 57-262. 
 
 78. Merely noting the fact of levy upon 
 personal property without taking and keep- 
 ing possession of it, held not sufficient to 
 create a hen : Tedhmeyer v. Waltz, 49-645. 
 
 79. Description: A levy in the following 
 words, "levied upon a lot of lumber, consist- 
 ing of fencing, flooring, sheeting, etc., etc., 
 as the property of," etc., held not sufficiently 
 definite as to the description of the property 
 to be valid. The levy should describe the 
 property with such certainty as to enable 
 either the successor of the officer or the pur- 
 chaser at the sale to find and identify it: 
 Payne v. Billingham, 10-360. 
 
 80. Leaving property with defendant, 
 who remains in possession without giving a 
 delivery bond, will prevent the levy being 
 valid as against a subsequent levy under exe- 
 cution, under which possession is taken: 
 Border v. Benge, 13-330. 
 
 81. Growing crops: A levy of execution 
 upon an unripe and growing crop is not valid 
 as against subsequently acquired liens, if 
 made so long before the officer can properly 
 proceed to advertise or sell as to evince an 
 intention on the part of the judgment creditor 
 to hold the levy for a time merely as security, 
 and especially if it is reasonably certain at 
 the time of the issuance of the writ that it 
 cannot be fully executed by the sale of the 
 crop during the life of the writ, but that the 
 judgnaent debtor must be put to the expense 
 of another writ : Burleigh v. Piper, 51-649. 
 
 82. Where the sheriff levied upon com in 
 the field ungathered, and notified parties 
 claiming the property of his intention to levy, 
 going into the field for the purpose of mak- 
 
EXECUTIONS, II, b. 
 
 757 
 
 The levy. 
 
 ing a levy, held, that, having done all that 
 could be done in order to take possession and 
 give notice to persons intei-ested, the sheriff 
 was not required, in order to maintain his 
 levy, to do more than owners of property 
 usually do under such circumstances to re- 
 tain possession : BaiT v. Cannon, 69-20. 
 
 83. Where crops were levied upon as prop- 
 erty of a tenant and left in liis hands as agent, 
 held, that this was a sufficient levy to consti- 
 tute a conversion as to the landlord who had 
 a chattel mortgage on the crops, and that the 
 conversion dated from such levy and not 
 merely from the time of sale: Stuart v. 
 Phelps, 39-14. 
 
 84. In case of principal and snrety: Al- 
 though the statute (Code, § 3039) provides 
 that, when the judgment is against principal 
 and surety, the officer having the collection 
 thereof shall first exhaust the property of the 
 principal, one Of two joint judgment debtors 
 cannot compel the creditor to resort to the 
 other one first, unless so directed in the judg- 
 ment, although as between the two the lat- 
 ter is primarily liable: Palmer v. Stacy, 
 
 Ur-Zid. 
 
 85. Such statutory provision only applies 
 when judgment has been obtained against 
 both principal and surety, and not then, un- 
 less the order of liability is stated in the judg- 
 ment: State V. MoGlothlin, 61-313. 
 
 86. The object of this statutory provision 
 is to enable one who is a surety to have it so 
 declared of record, to the end that the prop- 
 erty of the principal may be exhausted ; but 
 such a finding by the court will not be an 
 adjudication as to the facts, at least unless 
 the principal debtor was a party to the pro- 
 ceeding : Walters v. Wood, 61-890. 
 
 87. Partnership interest: A partner's in- 
 terest in partnership property is liable to exe- 
 cution which may be levied thereon and will 
 remain a lien until satisfied by sale or other- 
 wise. The equitable proceedings contem- 
 plated by statute in such cases (Code, g 3054) 
 simplj' pertain to the method of enforcing 
 the liability of the property to the writ: 
 Lambert v. Poivers, 36-18. 
 
 88. In determining the interest of the 
 debtor in the partnership, partners and cred- 
 itors may be made parties to the equitable 
 proceeding, and where the case demands, 
 the partnership may in such proceeding be 
 
 fully settled and wound up: Richards v, 
 Haines, 30-574. 
 
 &9. Where a creditor levied on firm prop- 
 erty under an individual judgment against 
 one partner and sold the property without 
 bringing the equitable action provided for by 
 statute, just referred to, held, that a creditor 
 of the firm obtaining judgment against the 
 partners individually might subsequently 
 levy upon such property and maintain an 
 equitable action to have the property sub- 
 jected first to the payment of the firm debt, 
 it appearing that there was no other firm 
 property: Aultman t: Fuller, 53-00. 
 
 90. Where an execution against the part- 
 nership was returned nulla bona as to the 
 partnership and also as to an individual 
 partner, except as to certain property stand- 
 ing in his wife's name, held, that before a 
 proceeding by scire facias (authorized by 
 statutory provisions not now in force), plaint- 
 iff could maintain his action in equity tO 
 subject the property to the satisfaction of 
 the execution, and require defendant to show 
 cause in the same action why individual 
 property should not be levied on to pay the 
 firm debts: Ticonic Bank v. Harvey, 16-141. 
 
 91. Estoppel: The action of a party in 
 disclaiming ownership in property before 
 levy thereon cannot be relied on as estop- 
 ping him from setting up a claim subse- 
 quently acquired, the party making the levy 
 not having been deceived or induced to act 
 by any precedent act or declaration of the 
 party thus claiming under the subsequently 
 acquired claim : Davidson v. Dwyer, 62-383. 
 
 92. Excessive levy will be ground for set- 
 ting aside a sale, even though the whole 
 property sold has been previously attached 
 in the same action : Cook v. Jenkins, 30-453. 
 
 93. A second levy cannot be made uutU 
 the first is disposed of: Downard v. Cren- 
 shaw, 49-296. 
 
 94. The assignee of a judgment cannot 
 disregard a levy already made and issue a 
 second execution and have another levy 
 made thereunder until the levy under the 
 first execution has been disposed of in some 
 way known to the law: McWilliams v, 
 Myers, 10-325. 
 
 95. Where real estate has been levied on, 
 such levy must be disposed of by sale or 
 abandonment, or set aside by a court, before 
 
758 
 
 EXECUTIONS, II, b. 
 
 The levy. 
 
 a second execution can issue, except as au- 
 thorized in a particular case by statute (Code, 
 g 3086) : Doivnard v. Crenshaw, 49-296. 
 
 That a second execution cannot issue while 
 a previous one is outstanding, see supra, 
 §§ 7-9. 
 
 9G. Lien on personal property: A writ of 
 execution does not become a lien upon per- 
 sonal property until actual levy is made: 
 Reeves V. Sebem, 16-234. 
 
 97. Levy constitutes satisfaction: After 
 levy of execution on goods and chattels suffi- 
 cient to satisfy the judgment, and defend- 
 ant in the execution is divested of his right 
 to the property, and the officer making the 
 levy becomes liable to the plaintiff for the 
 debt in case of failure to perform his duty 
 with reference to the property, such levy 
 becomes prima facie satisfaction of the judg- 
 ment: Lucas V. Cassaday, 2 G. Gr., 208. 
 
 98. And a subsequent release of such a 
 levy without the knowledge of a surety will 
 operate as a release of the surety: Sliei-raden 
 V. Parker, 24-28. 
 
 99. While proceedings for the satisfaction 
 of a judgment are going on, and property 
 sufficient to satisfy it is held under execu- 
 tion, the judgment cannot be sued on : Pech 
 V. Parchen, 52-46. 
 
 100. Levy on sufficient personal property 
 to satisfy the judgment is only considered a 
 satisfaction in certain cases, as where the 
 rights of a junior execution creditor inter- 
 vene, or where the delay in the sale is oc- 
 casioned by the plaintiff himself without the 
 agency or consent of defendant, but as be- 
 tween the parties, levy is not satisfaction ; 
 and where property which at the time of 
 levy was sufficient to satisfy a claim after- 
 wards depreciated in value, owing to the 
 postponement of the sale at the request of 
 defendant, held, that the levy did not con- 
 stitute a satisfaction: Williams v. Gartrell, 
 4 Gt. Gr., 287. 
 
 101. The rule that a levy upon personal 
 property is a satisfaction of the judgment 
 under which the levy is made does not apply 
 in case of levy upon real property. There- 
 fore, where a levy was made upon real prop- 
 erty supposed to belong to defendant, and 
 the same was bid in by plaintiff, but it after- 
 wards appeared that defendant had no title, 
 lield, that plaintiff might recover from de- 
 
 fendant the amount of the bid: Reed v. 
 Crosthwait, 6-219. 
 
 102. Dnty to levy ; indemnifying bond ; 
 notice of ownership: An officer is bound to 
 levy on any personal property in the posses- 
 sion of, or that he has reason to believe be- 
 longs to, defendant, or any on which the 
 plaintiff directs him to levy (Code, S? 3055), 
 and is not liable in any way by reason of 
 such levy until he receives the notice pro- 
 vided for in that section. He cannot demand 
 an indemnifying bond as there authorized 
 until such notice is served. His remedy by 
 interpleader is merely cumulative : Raster v. 
 Pease, 42-488. 
 
 103. A simple disclaimer at the time of 
 the levy, by the execution debtor, of any in- 
 terest in the property, will not be sufficient 
 in itself to put the officer on inquiry as to the 
 ownership of the property, or justify him in 
 postponing the levy and incurring the risk of 
 having the execution debtor dispose of the 
 property or otherwise place it beyond his 
 reach : West v. St. John, 63-287. 
 
 104. Where the execution plaintiff has 
 given an indemnifying bond, the officer must 
 hold the property at all events and apply it 
 to the execution unless it is taken from him 
 by legal process, and cannot escape liability 
 for not so doing by showing that it was not 
 the property of the judgment defendant: 
 Evans v. Thurston, 53-122. 
 
 105. But the officer is not liable in dam- 
 ages for failure to levy upon property in: de- 
 fendant's possession, if it is shown that such 
 defendant had no interest therein subject to 
 levy : Crosby v. Hungerford, 59-713. 
 
 100. Where the officer has been indemni- 
 fied, it is his duty to use the proper means 
 to make the levy effective on the property: 
 Cox v. Currier, 62-551. 
 
 107. Kemedy against officer: In the ab- 
 sence of the notice of ownership of, or claim 
 to, the property required by statute in order 
 to authorize the officer to demand an indem- 
 nifying bond, replevin will not lie against the 
 officer to recover the property levied on: 
 Finch V. Hollinger, 43-598; Peterson v. 
 Espeset, 48-262. 
 
 lOS. And in an action to recover the prop- 
 erty from the officer holding it under a levy, 
 it is necessary to allege the giving of such 
 notice : Allen v. Wheeler, 54^628. 
 
KXECUTIONS, II, b. 
 
 759 
 
 The levy. 
 
 109. Although the ofScer is to be protected 
 from all liability by reason of the levy until 
 notice is received, he cannot maintain an ac- 
 tion for expenses and attorneys' fees in de- 
 fending a replevin suit for the property levied 
 on, in which he is successful: Riokahaugh v. 
 Bada, 50-56. 
 
 110. Where plaintiff gives an indemnifying 
 bond upon notice being served upon the of- 
 ficer by a third person, that he has a lien 
 upon the property as mortgagee, and the 
 property is tlien seized and sold, recovery on 
 the bond cannot be defeated on the ground 
 that the mortgagee still has a lien upon the 
 property, and may take it under the mort- 
 gage : Rand v. Barrett, 66-731. 
 
 111. The statutory provision (Code, § 3058) 
 that the claimant of the property, for the 
 seizure or sale of vrhich an indemnifying 
 bond has been taken, shall be baned of any 
 action against the officer levying on the 
 property, if the surety on the bond was good 
 when it was taken, and limiting the claim- 
 ant of the property to his remedy on the bond, 
 is unconstitutional so far as it denies to a, 
 claimant of property levied on the right to 
 maintain an action for its recovery against 
 an officer levying on such property under 
 execution against another person, in that it 
 deprives the owner of his property without 
 due process of law, by substituting the liabil- 
 ity of the party to the bond for that of the 
 officer for his trespass : Foule v. Mann, 58-43 ; 
 Craig v. Fowler, 59-200. And see Sunberg v. 
 Babcock, 61-601. 
 
 112. The statutory provision requiring a 
 similar notice in order to render the officer 
 liable for a wrongful levy under attachment 
 (20 G. A., ch. 45), held not unconstitutional. 
 While it requires notice as a preliminary step 
 before action can be brought against the offi- 
 cer, it does not limit the owner of property 
 wrongfully seized to an action on the bond : 
 Cheadle v. Ouittar, 68-680. 
 
 113. The statutory provision above referred 
 to, requiring notice to the officer of owner- 
 ship of the property before bringing action 
 against him for wrongful levy thereon, does 
 not apply to a case where the execution de- 
 fendant claims that the property is exempt 
 from execution: McCoy v. Cornell, 40-457; 
 Parsons v. Thomas, 63-319. 
 
 114. These provisions as to the indemnify- 
 
 ing bond, as they originally stood, did not 
 apply to levies under attachment: Wads- 
 worth V. WalKker, 45-395; Hall v. Ballou, 
 58-585. (But they are now made applicable 
 in snch cases by 20 G. A., ch. 45.)] 
 
 115. Where the officer, without requiring 
 an indemnity bond, proceeds to sell property 
 as to which a third person has given him 
 proper notice of ownership, such owner may 
 maintain against him an action of replevin 
 for the property, although at the time the ac- 
 tion was brought the property was not in the 
 possession of the officer: Hardy v. Moore, 
 62-65. 
 
 116. The trial of right to property levied 
 upon, provided for by a former statute for the 
 purpose of determining the ownership of 
 such property, held not to bar an action of 
 replevin by a claimant to the property to de- 
 termine his right thereto : Morrill v. Miller, 
 3 G. Gr., 104. 
 
 117. Joint indemnifying bond: Where 
 an officer has several writs of execution by 
 differrnt judgments against the same defend- 
 ant, and is served with notice of a claim to 
 the property by a third person, an indemni- 
 fying bond may be given jointly by the exe- 
 cution plaintifFs, and on such boiid an action 
 against them jointly may be maintained: 
 Baxter v. Ray, 63-336. 
 
 118. The notice provided for by statute in 
 order to authorize the officer to require an 
 indemnifying bond must be delivered to him. 
 It is not sufficient to simply read it to him : 
 Gray v. Parker, 49-634. 
 
 119. The object of this notice is not for the 
 purpose of proving claimant's title to the 
 property, but to enable him to maintain an 
 action against the officer. It should run to 
 the officer and be unequivocal in character ; 
 and held, that a bill of sale from judgment 
 defendant to the claimant, for the property 
 levied on, was not a sufficient notice under 
 the statute : Oray v. Parker, 53-505. 
 
 120. Service of the written notice upon the 
 deputy sherilf who makes the levy is suf- 
 ficient: Burrows V. Waddell, 53-195. 
 
 121. But an acceptance of service of such 
 notice by the sherilf 's deputy is not binding : 
 Chapin v. Pinkerton, 58-336. 
 
 122. If the levy is by the deputy sheriff, 
 sei-vice of notice of the claim upon the prop- 
 erty by a third person made upon the sheriff 
 
T60 
 
 EXECUTIONS, II, b, c. 
 
 The levy. — The return. 
 
 is sufficient: Seadington v. Langland, 65- 
 276. 
 
 123. Notice served upon an officer by a 
 mortgagee of property under chattel mort- 
 gage, that such party is the owner of tlie prop- 
 erty by virtue of a certain chattel mortgage, 
 and demanding the immediate return of the 
 goods to the place from which they were 
 taken, is sufficient notice to constitute a 
 taking possession of the property under the 
 terms of a chattel mortgage authorizing the 
 mortgagee to do so whenever he chooses, and 
 such notice evinces the intention of the party 
 to claim his right of possession and fore- 
 closure as provided in the mortgage : Wells v. 
 Chapman, 59-658. 
 
 124. The fact that upon a claim by a third 
 party to the property the levy has been re- 
 leased, upon failure of the execution plaintiff 
 to give an indemnity bond, will not render 
 the seizure of such property under a second 
 execution invalid as against the owner of the 
 property or a fraudulent grantee thereof: 
 Clark V. Reiniger, 66-507. 
 
 125. Liability of party: A judgment 
 plaintiff who procures an order to be entered, 
 directing the sale of attached property and 
 the issuance of an execution for its sale, is 
 responsible for such sale, and thereby ratifies 
 the act of the officer in levying the attach- 
 ment upon it, and, if such sale is wrongful, 
 becomes liable in damages : Peterson v. Foli, 
 67-403. 
 
 126. Duty of officer: Where the property 
 levied upon by an officer was taken from him 
 in a proceeding in replevin, and that fact 
 was stated in his return, and afterwards the 
 replevin suit was determined against the 
 plaintiff therein, held, that the officer should 
 have proceeded to resell the property under 
 the levy, and that for failure to enforce the 
 levy he was liable in damages : Cox v. Cur- 
 rier, 62-551. 
 
 127. A sheriff is not liable in damages for 
 failure to levy upon property in the execu- 
 tion defendant's possession if it is shown that 
 such defendant had no interest therein sub- 
 ject to levy : Crosby v. Hungerford, 59-712. 
 
 128. The sheriff or constable is only held to 
 the exercise of ordinary care in the preserva- 
 tion of the property in his hands : Cresswellv. 
 Burt, 61-590. 
 
 129. In case a constable is unable by reason 
 
 of sickness to take care of property in his 
 hands under execution, he may turn it over to 
 another constable in his township and thus re- 
 lie ve himself from further responsibility. The 
 officer to whom the property is thus turned 
 over may require indemnity rmder the same 
 circumstances as the first officer might, and 
 if properly indemnified it would seem that he 
 could not refuse to receive the property and 
 execute the writ : Evans v. Thvrston, 53-123. 
 
 130. After the officer has levied upon per- 
 sonal property it is, in legal' contemplation, 
 in his possession, custody, or control; and 
 if left with a third person as bailee for safe 
 keeping, such custody is deemed the custody 
 or possession of the officer and for his benefit. 
 Although the bailee may be hable in re- 
 plevin, it by no means follows that the offi- 
 cer is not also liable : Ralston v. Black, 15-47. 
 
 131. Delivery bond: The fact that prop- 
 erty was not subject to seizure under execu- 
 tion will be a good defense in an action on a 
 delivery bond given to secure the release of 
 the property. Such a bond cannot be con- 
 sidered as voluntarily given in such sense as 
 to estop the party giving it from setting up 
 such defense: Humphreys v. Humphreys, 
 1 G. Gr., 477. 
 
 As to setting off mntnal judgments, see 
 Judgments, IV. , 
 
 c. The return. 
 As to return of writ of Attachment, see 
 that title, V. 
 
 132. Failure to return: An execution 
 must be regarded as existing until it is re- 
 turned, although the return day has passed; 
 and a sale under a second execution, issued 
 before the first is returned, should, as to the 
 judgment creditor purchasing thereat, he 
 set aside : Merritt v. Orover, 57-493. 
 
 133. The failure of the sheriff to make re- 
 turn of a sale within the year following, dur- 
 ing which redemption is allowed, will not 
 render the sale void : Cooper v. French, 53- 
 531. 
 
 134. Failure to return execution within 
 the time required by statute (Code, § 3037) 
 does not render the officer liable to an action 
 for damages, unless special injury is alleged 
 and proved : Musser v. Maynard, 55-197. 
 
 135. Sale after expiration of execution: 
 If a levy be made while the execution is 
 
EXECUTIONS, II, c, d. 
 
 Y61 
 
 The return. — Exemptions. 
 
 alive, a sale thereunder will be valid, al- 
 though made after the execution itself has 
 expired: Stein v. Chambless, 18-474; Moomey 
 V. Maas, 22-380; Childs v. McChesney, 30- 
 431 ; Butterfield v. Walsh, 21-97 ; Thorington 
 V. Allen, 31-291 ; Wright v. Howell, 35-288. 
 13G. The rule that a sale made after the 
 expiration of the execution is valid applies to 
 executions issued by justices of the peace: 
 Waltan v. Wray, 54-531. 
 
 137. Where the right of the sheriff to sub- 
 ject the property levied on to the satisfaction 
 of the execution is contested by an action of 
 replevin, he should not make any return 
 until after the disposition of the I'eplevin 
 suit. Having made a levy it is competent 
 for him to exhaust the property on that exe- 
 cution, no matter what time expires between 
 the levy and sale of the property: Cox v. 
 Currier, 63-551. 
 
 138. How made; evidence: The officer's 
 return indorsed on the writ is the evidence 
 as to wliat property is covered by the levy, 
 and it is not proper for the officer as a wit- 
 ness to testify as to whether other property 
 was levied upon: Flannigan v. Althouse, 
 56-518. 
 
 139. If the execution and return be shown 
 to be lost, parol evidence may be introduced 
 to show the contents of such return, but for 
 no other purpose : Le Barron v. Taylor, 53- 
 637. 
 
 140. An officer is required to make his re- 
 turn in writing indorsed on the execution. 
 If the execution is lost or destroyed, it may 
 be that it would be competent to make the 
 return on a copy, but unless the fact of such 
 loss or destruction is shown by the return, 
 a return made -upon a copy cannot be intro- 
 duced in evidence ; uor can the return be ex- 
 plained by parol, unless it is shown that it 
 has been made and lost or cannot be pro- 
 duced: West V. St. John, 63-287. 
 
 141. Where the sale is treated as a nullity 
 by the parties, parol evidence that it was 
 never completed may be received: Winne- 
 bago County V. Brones, 68-682. 
 
 142. A return upon an execution should 
 be a statement of what is done by the officer 
 in obedience to the writ ; and a statement 
 therein purporting to show the acts of a per- 
 son other than the officer is without author- 
 ity of law, and surplusage ; therefore, held, 
 
 that a statement in the return that the exe- 
 cution was satisfied by defendant giving 
 security, which was taken by order of plaint- 
 iff, and an entry by the clerk upon the judg- 
 ment record of the same facts, did not show 
 a satisfaction upon which a subsequent in- 
 cumbrancer could rely : ^tiZf man v. McGrady, 
 58-118. 
 
 143. The return of the officer "no prop- 
 erty found " is sufficient evidence to show 
 that property of defendant, on which to 
 make a levy, has not been found within the 
 state: Cameron v. Boyle, 2 G. Gr., 154. 
 
 144. Statements made by the officer in his 
 return as to acts which are no part of his 
 official duty are not evidence of such acts: 
 Wickersham v. Reeves, 1-413. 
 
 145. Effect of irregularities: The valid- 
 ity of the sale does not depend upon tlie regu- 
 larity of the sheriff's return, and a purchaser 
 at such sale who pays his money and receives 
 his deed cannot be prejudiced by want of or 
 irregularity in the sheriff's return of the sale: 
 Hopping v. Brunam, 3 G. Gr., 39; Cornell ' 
 V. Doolittle, 3 G. Gr., 385. 
 
 146. Failure to state in the return that 
 notice was given to the execution defendant 
 will not invalidate the deed in a collateral 
 attack: Humphry v. Beeson, 1 G. Gr., 199. 
 
 d. Exemptions. 
 
 147. Liberal construction: Exemption 
 laws will be liberally construed so as to 
 carry out their object: Davis v. Humphrey, 
 33-137. 
 
 148. They are to be liberally construed 
 in favor of those claiming their benefits: 
 Kaiser v. Seaton, 63-463 ; Bevan v. Hayden, 
 13-132. 
 
 149. Pertain to remedy: Exemptions re- 
 late to the remedy and are to be governed by 
 the law of the forum and not by the place of 
 the contract : Newell v. Hayden, 8-140. 
 
 150. Public property: Under statutory 
 provision (Code, § 3048), public buildings of 
 a municipal corporation are exempt from ex- 
 ecution. Therefore, a judgment against the 
 corjioration owning them is not a lien 
 thereon : Davenport v. Peoria M. & F. Ins. 
 Co., 17-276. 
 
 151. As such buildings cannot be seized 
 and sold under execution, a mechanic's lien 
 
762 
 
 EXECUTIONS, II, d. 
 
 Exemptions. 
 
 cannot be enf orcerl against them : Lewis v. 
 Chickasaw County, 50-234 ; Loring v. Small, 
 50-271; Charnock v. District T'p, 51-70; 
 Whiting v. Story County, 54r-81. 
 
 152. An averment that property levied on 
 is that of a municipal corporation, and neces- 
 sary and proper for its use in carrying out 
 its purposes, is a sufficient allegation as to its 
 public character: Fort Dodge v. Moore, 37-388. 
 
 153. Exemptions to heart of a family: 
 The term "head of a family," used in the 
 statute (Code, § 3072) in providing for ex- 
 emption of personal property from execution, 
 is used in reference to the relation existing 
 between the members of the family as recog- 
 nized by law and the usages of society, and 
 where a woman, who, as a widow and the 
 mother of children, held the team belonging 
 to her former husband exempt from execu- 
 tion, subsequently remarried, held, that she 
 thereby ceased to be the head of the family, 
 and the team became subject to execution on 
 a judgment against her: Van Dor an v. 
 Harden, 48-186. 
 
 154. The question as to who is head of the 
 family is one of law and not of fact, and 
 when the husband is subject to no dis- 
 ability, he, and not the wife, is the head of 
 the family, without regard to which one is 
 the owner of the property: Ihid. 
 
 155. Where a widower kept house, em- 
 ploying a domestic, and having living with 
 him his son and son's wife, who paid no com- 
 pensation, held, that he was the head of a 
 family : Tyson v. Reynolds, 52-431. 
 
 156. An unmarried man with whom his 
 brother and brother's wife lived and for 
 whom they I kept house, he furnishing the 
 necessaries, held not to be the head of a 
 family: Whalen v. Cadman, 11-236. 
 
 157. Where husband and wife lived sep- 
 arate for seven years prior to his death, he 
 neither contributing to nor bemg asked to 
 contribute to her support, and it not appear- 
 ing that the separation was intended to be 
 temporary, held, that he was not the head of 
 a family, and, therefore, his widow was not, 
 after his death, entitled to have set off to her 
 personal property which would have been in 
 his hands as head of a family exempt from 
 execution : Linton v. Crosby, 56-386. 
 
 158. Team and vehicle with which dehtor 
 earns his living-: Under the statutory pro- 
 
 vision exempting to a physician, farmer, or 
 other laborer the horse or team and wagoner 
 other vehicle with which he earns his living, 
 held, that the two horses with which a physi- 
 cian habitually earns his living will be exempt 
 although he does not use them as a team, but 
 singly, but he raust show that they are so 
 used, before he can. have the benefit of the 
 exemption : Corp v. Griswold, 27-379. 
 
 159. Evidence held sufficient in a partiou- 
 lar case to show that the horses of a farmer 
 were exempt as habitually used to earn his 
 living : Bevan v. Hayden, 13-123. 
 
 160. One who abandons one employment, 
 and procures a team or part of a team, in- 
 tending to complete the same, for the pur- 
 pose of using it in good faith to earn his live- 
 lihood, may have the same exempt, without 
 regard to the amount of use he has made 
 thereof: Ihid. ■ 
 
 161. Where plaintiff, whose stock of goods 
 as a retail grocer had been taken on execu- 
 tion, continued to use a spring wagon for 
 the purpose of delivering goods for the per- 
 son buying the stock, whether with or with- 
 out compensation it did not appeal', and had 
 no other occupation or method of earning a 
 living, held, that he was entitled to the 
 wagon as exempt, although he had been us- 
 ing it in that manner but for a day or two: 
 Baker v. Hayzlett, 53-18. 
 
 162. One who is engaged in the hvery 
 business is or may be a laborer, and if he in 
 such business uses a team of horses, or 
 wagon, or other vehicle, and thereby earns 
 his living, the same is exempt : Root v. Gay, 
 64^399. 
 
 163. Where, at the time of seizure of a 
 buggy by the officer, it was the vehicle by 
 the use of which the plaintiff, as a physician, 
 habitually earned his living, held, that it was 
 exempt from seizure irrespective of the time 
 when or the motive with which it had been 
 procured: Farner v. Turner, 1-53. 
 
 164. Where it appears that the debtor has 
 the right to select one of several vehicles as 
 exempt, and such selection is made before 
 levy, it should be respected by the officer: 
 Parker v. Haley, 60-325. 
 
 165. Two cows and a calf: A yearling 
 heifer is not exempt under the provision with 
 reference to two cows and a calf: Mitchell V. 
 Joyce, e9-121. 
 
EXECUTIONS, II, d. 
 
 T63 
 
 Exemptions. 
 
 166. Tools: A party claiming tools as ex- 
 empt under the statute must show that he is 
 a mechanic, and that they are the tools of his 
 trade, but he need not show that by the use 
 of them he habitually earns his living; Per- 
 kins V. Wisner, 9-320. 
 
 167. The tools contemplated by the statute 
 are those used or handled by the mechanic, 
 and do not include the building or place 
 where the trade is pursued. Therefore, held, 
 that the biulding used by a photographer in 
 carrying on his business, although shown to 
 be personal property, was not exempt in the 
 absence of any showing that a building con- 
 structed in a particular manner is required 
 in that business : Holden v. Stranahan, 48-70. 
 
 168. A threshing-machine owned and used 
 for the purpose of gain, by threshing for 
 others, is not a part of the proper tools of a 
 farmer so as to be exempt : Meyer v. Meyer, 
 23-359, 375. 
 
 169. ProTisioiis for the family, as ex- 
 empted by the statute, do not include pro- 
 visions for strangers or boarders lodging with 
 the family. Therefore, held, that provisions 
 prepai-ed for boarders by the keeper of a 
 restaurant were not exempt from execution : 
 Coffey V. Wilson, 65-270. 
 
 1 70. Earnings: The exemption of earnings 
 extends to professional men as well as to 
 laborers : McCoy v. Cornell, 40-457. 
 
 171. If the employer of the debtor is gai'- 
 nished, he is not liable unless more than 
 ninety days' earnings are in his hands. The 
 earnings for that length of time, whether ac- 
 cruing before or after the garnishment, are 
 exempt: Davis v. Humphrey, 22-137. 
 
 172. The object of the statutory exemp- 
 tion of earnings is to protect the earnings for 
 personal service, as contradistinguished from 
 the income arising from a business involving 
 other elements of gain than the mere personal 
 service of those conducting it ; therefore, held, 
 that the business of keeping a boarding house 
 involves many elements of profit aside from 
 the mere personal earnings of the proprietor 
 and his family, and that money due to him 
 in that business is not exempt from execution 
 as personal earnings: Shelly v. Smith, 59- 
 453. 
 
 1 73. The earnings of a debtor as subcon- 
 tractor for personal services are exempt. 
 Whether a contractor who furnishes materi- 
 
 als on his own account, as well as labor, may 
 divide his claim and hold exempt the pro- 
 ceeds of his labor, qucere: Banks v. Roden- 
 baeh, 54-695. 
 
 174. Wages for personal services earned 
 in the use Of exempt property are exempt, 
 and it is not fraudulent for the husband to 
 contract to render such services to another : 
 Patterson v. Johnson, 59-397. 
 
 1 7.3. The person entitled to hold earnings 
 exempt from execution may use such earn- 
 ings in payment of property parchased by his 
 wife, and such property will be held by the 
 wife free from his debts: Sobb v. Brewer, 
 60-539. 
 
 176. Earnings of non-resident: To entitle 
 a debtor to this exemption, it must be shown 
 that he is a resident of the state : Smith v. 
 Chicago & N. W. R. Co., 60-312. 
 
 177. If defendant is a non-resident he can- 
 not claim exemption of earnings, even if 
 they are rendered in the state of his resi- 
 dence, and are exempt by the laws of that 
 state: Mooney v. Union Pacific R. Co., 60- 
 346. 
 
 178. Foreign exemptions: The exemption 
 laws of another state or territory cannot be 
 relied on and pleaded as a defense, either by 
 a garnishee or judgment debtor : Broadstreet 
 V. Clark, 65-670. 
 
 179. A creditor cannot, by instituting a 
 proceeding by garnishment in another state, 
 seize a debt due to a debtor in this state, and 
 which would be here exempt from execu- 
 tion: Teager v. Landsley, ^9-725; Hager v. 
 Adams, 70 . 
 
 Further as to garnishment of exempt earn- 
 ings, see Ga-ENIshment, §§ 72-77. 
 
 180. Persons leaving the state: A per- 
 son who had avowed his purpose to remove 
 from the state, had placed his wagon in po- 
 sition for loading, had boxed some of his 
 goods, and removed them from the house, 
 held to have "started to leave the state" 
 within the meaning of Code, § 3076, lim- 
 iting the amount of exemption allowed to 
 the head of a family in such cases : Graw 
 V. Manning, 54-719. 
 
 181. The mere expi-ession of intention on 
 the part of a debtor to leave the state wiU 
 not be sufiB.cient to justify the levy upon his 
 goods, which would otherwise be exempt 
 from execution, and if, by reason of a subse- 
 
16i 
 
 EXECUTIONS, U, d. 
 
 Exemptions. 
 
 quent change of intention, the debtor is not 
 about to leave the state, the levy will be 
 ■wrongful : Tubbs v. Garrison, 68-44. 
 
 18ii. The fact that the officer making the 
 levy is informed that the debtor is about to 
 leave the state is not admissible as a defense 
 for the wi-ongf ul levy : Ibid. 
 
 183. Facts indicating an intention to re- 
 move from the town, without more, are not 
 admissible as evidence of an intention to 
 leave the state : Ibid. 
 
 184. While the word " start," in connection 
 with leaving the state, in this statutory pro- 
 vision, is not limited to the actual setting out 
 upon a journey, yet, where tlie intention 
 with which a removal was effected was to 
 change the residence from one part of the 
 state to another, held, that there could not 
 be any starting to leave the state within the 
 definition of the statute : Ibid. 
 
 185. Absconding debtor: To constitute an 
 absconding such as to entitle the wife to hold 
 the property as exempt after the departure 
 of her husband, as provided by statute, the 
 departure need not be without the knowl- 
 edge and consent of the wife: Malvin v. 
 Christoph, 54^563. 
 
 18(i. The wife of an absconding husband 
 may sell property which he held exempt, and 
 which by statutory provision remains ex- 
 empt in her hands, and hold the proceeds 
 free from his debts: Waugh v. Bridgeford, 
 69-334. 
 
 Homestead: As to the homestead exemp- 
 tion, see Homestead. 
 
 187. Pension money: The exemption of 
 pension money under the provisions of the 
 Eevised Statutes of the United States appUes 
 only to money due the pensioner while in 
 course of transmission to him, and not after 
 the money comes into his possession and is 
 deposited in a bank or invested in property : 
 Webb V. Salt, 57-713; Triplett v. Ch-aham, 
 58-135. 
 
 188. But where a pensioner transferred 
 his pension check to his wife, who purchased 
 real property therewith in her own name, 
 held, that such property was exempt from 
 the husband's debts and the transfer could 
 not be deemed fraudulent : Farmer v. Turner, 
 64-690. 
 
 189. By statute (30 G. A., ch. 33) pension 
 money, whether in the pensioner's possession 
 
 or deposited, loaned or invested, remains ex- 
 empt. But this act is not applicable to such 
 money coming into the pensioner's possession 
 before it took effect: Baugh v. Barrett, 69- 
 495. 
 
 190. From the time of the taking effect of 
 this act exempting pension money, any pen- 
 sioner had power to make a gift of his pension 
 money, or the donee to receive the same, or 
 the property purchased therewith, free from 
 the claim of donor's creditors ; but where an 
 action to subject such pension money to the 
 payment of the pensioner's debts was brought 
 before the taking effect of the statute ex- 
 empting such money, held, that such statute 
 could not be given effect : Goble v. Stephen- 
 son, 68-370. 
 
 191. When exemption must be claimed: 
 The owner of personal property exempt from 
 execution may claim such exemption from 
 lev3r at any time during the progress of the 
 sale thereof, until the sale becomes effectual 
 in law : Sevan v. Hayden, 13-122. 
 
 192. Selection: Where the debtor is to 
 select the animal to be held exempt, such 
 selection may be made by serving written 
 notice on the sheriff claiming the animal 
 levied on : Malvin v. Christoph, 54r-563. 
 
 193. Waiver of exemption: A simple 
 waiver of the benefit of exemption laws made 
 contemporaneously with the contract or 
 debt will not entitle the creditor, in case of 
 a failure to pay, to levy an execution under 
 a judgment thereon upon exempt property, 
 against defendant's objection: Curtis v. 
 O'Brien, 30-376. 
 
 194. But a voluntary surrender of prop- 
 erty to the sheriff having the execution 
 precludes the debtor from afterwards setting 
 up that it is exempt : Richards v. Haines, 80- 
 574. 
 
 195. An exemption is a personal right 
 which the debtor may waive or claim at 
 his election. He cannot stand by without 
 objection, seeing and knowing that a levy 
 is about to be made, and afterwards claim the 
 exemption. He must at the time, in some 
 manner, indicate to the officer his purpose to 
 claim the property as exempt: Angell v. 
 Johnson, 51-635 ; Moffltt v. Adams, 60-44. 
 
 196. But in a particular case, held, that the 
 facts did not show a failure on the part of 
 the debtor to object to the levy sufficient to 
 
EXECUTIONS, II, d. 
 
 Y65 
 
 Exemptions. 
 
 constitute a waiver of exemption : Oreen v. 
 Blunt, 59-79. 
 
 197. Under a statutory provision) later 
 than the foregoing decisions (19 G. A., ch. 
 49), that the officer must require defendant to 
 make a selection of the property which he 
 claims as exempt, held, that mere sUence of 
 defendant, when informed of the levy, and 
 failure to object thereto for two weeks, would 
 not estop him from claiming his exemp- 
 tion, it not appearing what, if any, expense 
 had been incurred by the officer in conse- 
 quence of the levy : Ellsworth v. Savre, 67- 
 449. 
 
 198. An interest in the property itself 
 would not be waived by a failure to assert it 
 at the time of the seizure, unless the party 
 making the seizure was thereby misled or in- 
 duced to change his relations with reference 
 to the property : Gunsel v. McDonnell, 67- 
 521. 
 
 199. Waiver by contract: The benefit of 
 the exemption laws cannot be waived by 
 stipulation in a note creating an indebted- 
 ness, so as to deprive the debtor of his ex- 
 emptions under execution on a judgment 
 recovered on such note : Curtis v. O'Brien, 
 20-376. 
 
 200. A stipulation in a lease by which the 
 landlord is given a lien for his rent upon 
 crops, stock, etc., of the tenant upon the 
 premises, whether exempt or not, is in the 
 nature of a mortgage and is valid : Fejavary 
 V. Broesch, 52-88. 
 
 201. Partnership property: A partner 
 cannot hold partnership property exempt 
 from execution for the debts of the firm, and 
 this is so without regard to the rights and 
 liabilities existing between the partners: 
 Van Staden v. Kline, 64H80. 
 
 Life insurance is exempt from the debts 
 of the assured : See Insurance, §§ 269-277. 
 
 202. Exchange of exempt property: 
 Where exempt property is exchanged for 
 property not by law exempt from execution. 
 Such newly-acquired property becomes liable 
 for the owner's debts : Friedlander v. Maho- 
 ney, 31-311. 
 
 203. Sale: When property is exempt from 
 execution, the owner may transfer it free 
 from any claim of his creditors without re- 
 gard to the uses to which he diverts the pro- 
 ceeds, there being no provision in the statute 
 
 to the contrary: Waughv. Bridgeford, 69- 
 334. 
 
 204. Therefore where the wife of an ab- 
 sconding husband becomes entitled to prop- 
 erty which was exempt in his hands, she may 
 sell the same, and the property sold and the 
 proceeds thereof will remain exempt : Ibid. 
 ^ 205. The mortgagee of chattel property 
 taking possession thereof and selling the same 
 for the benefit of the mortgagor is not liable 
 as garnishee so far as such property is exempt 
 from execution, whether the mortgage is in 
 itself fraudulent or not: Brainard v. Sim- 
 mons, 67-646. 
 
 208. Proceeds of a voluntary sale of ex- 
 empt property are not exempt from execu- 
 tion, and a judgment against the purchaser 
 of such property for the purchase money may 
 be levied on by garnishment : Harrier v. Fas- 
 sett, 56-264. 
 
 207. Where exempt property is invaded 
 and converted in whole or in part into a 
 money claim, against the will of the owner, 
 the money collected thereon is exempt, at 
 least for a reasonable time : Kaiser v. Beaton, 
 63-463 ; Mudge v. Lanning, 68-641. 
 
 208. Liens on exempt property: The stat- 
 utory provisions as to exemptions were not 
 designed to prevent the accruing of liens 
 otherwise recognized, such, for instance, as 
 an innkeeper's lien, and such lien can be en- 
 forced against property to which it attaches 
 without regard to the exemption : Swan v. 
 Bournes, 47-501. 
 
 209. A lien, such as that of an innkeeper 
 or agister, may arise upon exempt property 
 under the same circumstances as upon prop- 
 erty not exempt : Munson v. Porter, 63-453. 
 
 210. Wrongful levy npon : A mortgagor 
 of exempt property may maintain an ac- 
 tion for the wrongful levy upon such prop- 
 erty under execution as to which the 
 property is exempt : Evans v. St. Paul Har- 
 vester Works, 63-304. 
 
 211. In an action by replevin to recover 
 exempt property wrongfully levied upon un- 
 der execution, the residence of plaintiff need 
 not be alleged. It is for defendant to allege 
 and prove non-residence as a defense : Newell 
 V. Hayden, 8-140. 
 
 As to the remedy against the officer for 
 wrongful levy upon exempt property, see 
 supra, § 113. 
 
Y66 
 
 EXECUTIONS, in. 
 
 Sale. 
 
 III. Sale. 
 
 212. Notice of sale; penalty: If it ap- 
 peal's that the officer sold the property with- 
 out notice, for a sum equal to its value, and 
 applied the proceeds upon the execution and 
 costs, so that the property owner sustained 
 no actual damage for want of notice, the lat- 
 tet cannot recover the penalty of $100 au- 
 thorized by statute to be recovered "in addi- 
 tion to the actual damages sustained " (Code, 
 § 3081): Co^ey v. Wilson, 65-270. 
 
 213. So where plaintiff in such case on the 
 trial withdrew his claim for actual damages, 
 hdd, that the penalty could not be recovered : 
 Enfield v. Blyler, 67-395. 
 
 214. Notice of actual occupant: Under a 
 statute (Code, g 3087) requiring that, before 
 sale of real property under execution, writ- 
 ten notice of the sale shall be served upon 
 defendant, if in actual occupation and pos- 
 session of the land, held, that notice is not 
 required where defendant is not personally 
 in possession or actual occupation of the prop- 
 erty : Babeock v. Ourney, 43-154 ; Bennett v. 
 Burton, 44-550. 
 
 215. The owner is not, within the meaning 
 of this section, " in the actual occupation " of 
 land leased to, and occupied by, a tenant; 
 but where the owner is in the actual use and 
 enjoyment of the property, although not re- 
 siding thereon, he is in such actual occupa- 
 tion and possession as is here required. So 
 held, where the owner, by means of em- 
 ployees residing on the land, was operating a 
 saw- mill thereon: Fleming v. Maddox, 30-239. 
 
 216. The provision that in the cases here 
 referred to the sale may be set aside does 
 not invest the court below with such discre- 
 tion that its action cannot be reviewed on ap- 
 peal. Though mandatory rather than per- 
 missive, it seems there might be cases within 
 the letter of the statute where it would not 
 be enforced: Jensen v. Woodbury, 16-515. 
 
 217. This section applies to sales under 
 special as well as under general execution : 
 Ibid. ; Fleming v. Maddox, 30-239. 
 
 218. It is not essential that the return of 
 the execution show notice to the party in 
 possession of the premises. It would be pre- 
 sumed that such notice was given accord- 
 ing to the requirements of the statute: Cor- 
 riellv. Doolittle, 2 G. Gr., 385. 
 
 219. Appraisement: Where one of the ap- 
 praisers selected by an execution creditor 
 lived thirty-five miles from the property, 
 held, that the sale should be set aside as 
 against such creditor, who was a purchaser 
 thereat, it appearing that the appraisement 
 was at less than one-half the value of the 
 land, the selection of the appraiser being in 
 violation of the statutory requirement that 
 he should be a householder of the neighbor- 
 hood : Woods V. Cochrane, 38-484. 
 
 220. The fact that one of the appraisers is 
 selected by the deputy sheriff does not vitiate 
 the sale. It is a mere irregularity, not af- 
 fecting the power of the officer to sell nor 
 the validity of the title acquired by the pur- 
 chaser : Davis v. Spaulding, 36-610. 
 
 221. The fact that where it appears that 
 the sheriff appointed one appraiser, his re- 
 turn does not show that the party for whom 
 he acted in making such appointment was 
 absent or refused to appoint, will not render 
 the sale void : Preston v. Wright, 60-351. 
 
 222. Whether the appraisers in fixing the 
 value of the property should find the amount 
 of prior liens and incumbrances and fix the 
 value with reference thereto, or should fix 
 the whole value without reference to prior 
 liens and leave the matter of ascertaining 
 such liens to the sheriff, quaere. But held, 
 that a judicial sale could not be set aside as 
 having been made for an amount less than 
 the two-thirds value, except it should be made 
 to appear that it was for less than two-thirds 
 of the value after deducting incumbrances: 
 Brown v. Butters, 40-544. 
 
 223. Where a party sought relief on the 
 ground that the sale was for less than two- 
 thirds of the appraised value, held, that he 
 had the burden of showing such fact, and un- 
 less it was established affirmatively, the sale 
 could not be set aside: Barber v. Tryon, 41- 
 349. 
 
 224. Further held, that the purchaser at 
 such a sale is not bound to look beyond the 
 records for the purpose of determining 
 whether apparent liens or incumbrances have 
 not been discharged. Where the records 
 show an incumbiance which, added to the 
 amount paid, makes two-thirds of the ap- 
 praised value, the sale should not be set 
 aside, although evidence is introduced to 
 show that the incumbrance has been in 
 
EXECUTIONS, III. 
 
 767 
 
 Sale. 
 
 fact satisfied : Ibid. ; McDonald v. Johnson, 
 48-72. 
 
 225. The property appraised must be sold 
 for a sum which, when added to the prior in- 
 cumbrance, shall realize to the debtor two- 
 thirds of the fair value of the property as 
 the same has been ascertained by the ap- 
 praisement: Sargent v. Pittman, 16-469; 
 McDonald v. Johnson, 48 73. 
 
 226. A sale for a less proportion than that 
 authorized will be invalid, at least as between 
 the parties, and the fact that the debtor's 
 title is doubtful, or other circumstances af- 
 fecting the value of the property, will be im- 
 material. Such fact should be taken into 
 account by the appraisers, and the value 
 fixed by them should be that of defendant's 
 interest in the property : Maple v. Nelson, 31- 
 323. 
 
 227. Rent accruing after the execution of 
 the sheriff's deed is not directly the subject 
 of sa,le, but passes merely as an incident. It 
 is not necessary, therefore, that it be ap- 
 praised separately from the land. It would 
 be presumed that that right was considered 
 in determining the appraised value of the 
 property: Townsend v. Isenherger, 45-670. 
 
 228. An appraisement is not proper evi- 
 dence of the value of the property in an 
 action by a third person claiming to be the 
 owner thereof and seeking to recover for its 
 conversion: Flannigan v. Althouse, 56-513. 
 
 229. Failure to have the appraisement 
 made, held not to affect the validity of the 
 sale as to the purchaser : Shaffer v. Bolander, 
 4 G. 6r., 201. 
 
 230. The purchaser at the sale is not re- 
 quired to take notice of the regularity of 
 the appraisement: Johnson v. Carson, 3 G. 
 Gr., 499. 
 
 231. But, per contra, held that the pro- 
 visions as to appraisement were not merely 
 directory but affected the question of power 
 to sell, on which the validity of the sale de- 
 pended: Sprott V. Reid, 3 G. Gr., 489. 
 
 232. Any change in the appraigeuient 
 laws calculated to impair rights under exist- 
 ing contracts cannot be made applicable to 
 an execution sale in an action brought under 
 such contract: Burton v. Emerson, 4 G. Gr., 
 393. 
 
 233. "Where, at the time of the making of a 
 contract, the law does not provide for ap- 
 
 praisement, and, at the time of judgment 
 thereunder, appraisement is provided for, the 
 sale should be made under the law in force 
 at the time of the contract, and appraisement 
 should not be allowed : Olmstead v. Kellogg, 
 47-460. 
 
 234. While legislation depriving the judg- 
 ment debtor of the benefit of appraisement 
 or redemption laws is not inhibited by any 
 constitutional provision, still under the statu- 
 tory provision that the repeal of a prior stat- 
 ute shall not affect any act done or right 
 accruing, and which has been established, 
 etc., held, that a judicial sale upon a judg- 
 ment rendered before the taking effect of the 
 Code should be made under the law as to ap- 
 praisement and redemption existing when 
 the judgment was rendered, and not in ac- 
 cordance with the law in existence at the 
 time of the sale, under which the right to ap- 
 praisement was taken away: Holland v. 
 Dickerson, 41-367. 
 
 235. But where the judgment was ren- 
 dered after the taking effect of the Code 
 upon a contract made before that time, held, 
 that the sale should be according to the Code 
 provisions which took away the right of ap- 
 praisement, and not in accordance with the 
 law as it existed at the time of the making of 
 the contract: Babcock v. Ourney, 42-154 ;, 
 Fonda v. Clark, 43-300. 
 
 236. Appraisement pertains to the remedy 
 and is to be governed by the law of the 
 forum and not that of the lex loci contractus: 
 Shaffer V. Bolander, 4 G. Gr., 201. 
 
 237. Adjournment: The discretion of the 
 sheriff, as to adjournment, should be exer- 
 cised with a fair and impartial attention to 
 the interests of all parties concerned. Where 
 his power in that respect is not judiciously 
 exercised, it may be a ground for setting the 
 sale aside : Swortzell v. Martin, 16-519. 
 
 238. The fact that there was one more ad- 
 journment than is authorized by statute, and 
 that the time was extended beyond the 
 period allowed, held, a mere irregularity, to 
 be taken advantage of only on a showing of 
 prejudice : Beese v, Dobbins, 51-282. 
 
 239. The adjournment of a sale by plaint- 
 iff's attorney is a gross irregularity, and a 
 sale at a time to which it is so adjourned will 
 be void : Wolf v. Van Metre, 37-348. 
 
 240. A postponement of the sale by public 
 
768 
 
 EXECUTIONS, III. 
 
 Sale. 
 
 proclamation add agreement of the parties in 
 interest will not render a subsequent sale in- 
 valid: Coriell v. Ham, 4 G. Gr., 455. 
 
 241. Postponement of the sale at the in- 
 stance and for the benefit of defendant in ex- 
 ecution will not render it invalid between 
 the parties : Payne v. BllUngham, 10-360. 
 
 242. After expiration of execution: Sale 
 of property under execution which has ex- 
 pired, and without renewal, in pursuance of 
 a le%'y made before the expiration of the ex- 
 ecution, is valid: Stein v. Chambless, 18-474; 
 Childs V. McChesney, 20-431; Butterfield v. 
 Walsh. 31-97 ; ThoHngton v. Allen, 31-391 ; 
 Mooniey v. Maas, 33-8b0. 
 
 243. This rule apphes also to sales on exe- 
 cution from justices of the peace : Walton v. 
 Wray, 54-531. 
 
 244. Failure to make return of sale be- 
 fore the expiration of a year from the date 
 thereof will not render the sale void : Cooper 
 V. French, 53-531. 
 
 245. lii.innction against sale: A sale of 
 property on which the judgment is not a 
 lien will be enjoined: Key City Oas Light 
 Co. V. Munsell, 19-305. 
 
 248. But the sale will not be enjoined if 
 the judgment is a Hen on the property, al- 
 though it is inferior to other liens : Wiediier 
 V. TJiompson, 66-388. 
 
 247. Failure to pay bid: Under the stat- 
 ute (Code, g 3089) providing that, when the 
 purchaser fails to pay the money bid, plaintlflE 
 may proceed against him for the amount, or 
 the sheriff shall treat the sale as a nullity 
 and may sell the property again, held, that 
 where the execution debtor bid off the prop- 
 erty and afterwards failed to pay the money, 
 the officer could not, on the next day, accept 
 the next highest bid and strike off the property 
 to such bidder: Swortzell v. Martin, 16-519. 
 
 248. While the sheriff must sell for cash, 
 yet if the person entitled to the proceeds is 
 the purchaser, he can properly treat the sat- 
 isfaction of the judgment as a cash payment: 
 Beal V. Blair, 33-318. 
 
 249. Where the execution creditor bids in 
 the property, although he cannot be required 
 to pay to the sheriff that part of the purchase 
 money which is to be credited on his judg- 
 ment, he is to pay the costs, and if he does 
 not do so, the sheriff is to treat the sale as a 
 nullity : Reese v. Dobbins, 51-283. 
 
 250. Where a purchaser at the sale bids 
 with the understanding and upon the con- 
 dition that the amount bid is first to be used 
 to satisfy existing liens on the premises, his 
 bid cannot be enforced unless the proceeds 
 are thus applied : Vanslyek v. Mills, 34-375. 
 
 251. Where the property sold was defend- 
 ant's undivided interest in a crop and the bid 
 was by the acre, held, that under the circum- 
 stances of the case the bid should be consid- 
 ered as so much per acre for the acres which 
 defendant's portion of the crop would 
 amount to, and not as that amount for de- 
 fendant's undivided interest in each acre of 
 the crop : Denny v. Cochran, 51-653. 
 
 252. W"here the property has been sold to 
 the plaintiff in execution, he has not a right 
 thereafter to withdraw his bid and prevent 
 the satisfaction of the judgment, at least 
 without the assent of the sheriff and prob- 
 ably also that of the execution debtor : Dow- 
 nard v. Crenshaw, 49-396. 
 
 253. Where an agent, acting for the execu- 
 tion creditor, by mistake bid more for land 
 offered at the sale than he was authorized, 
 but immediately withdrew his bid and paid 
 costs of sale, held, that as the execution 
 debtor had not changed his position on ac- 
 count of the sale, the withdrawal was author- 
 ized and the property might be again offered 
 for sale: Fuson v. Connecticut General L, 
 Ins. Co., 53-609. 
 
 254. Who may he purchaser: One of sev- 
 eral execution defendants has the right at 
 the sale to purchase the property of another 
 defendant : Windle v. Brandt, 55-331. 
 
 255. Where, at a foreclosure sale, a cor- 
 poration not party to the foreclosure became 
 the successful bidder, and by consent of the 
 court the bid was transferred to the plaintiff 
 in the foreclosure to whom the deed was 
 issued, held, that the latter was the purchaser 
 and not the former: Cfilmanv. Des Moines 
 Valley R. Co., 43-495. 
 
 256. Overplus: Aside from the statutory 
 provision (Code, g 3084) in relation to the dis- 
 posal of overplus, the sheriff would not be 
 authorized to apply such overplus to another 
 execution in his hands. The money being 
 deemed in the custody of the law would not 
 be subject to levy, but must first be paid to 
 the party whose property is sold : Payne v. 
 Billingham, 10-360. 
 
EXECUTIONS, III. 
 
 769 
 
 Sale. 
 
 257. A sale en masse of tracts which could 
 advantageously be sold separately will be set 
 aside, either on motion or in an independent 
 proceeding in equity for that purpose : White 
 V. Watts, 18-74; Boyd v. Ellis, 11-97; Brad- 
 ford V. Limpus, 13-424. 
 
 258. So held in case of a sale in gross of 
 distinct parcels under judgment of foreclos- 
 ure on a mortgage covering all of them : Lay 
 V. Gibbons, 14-377. 
 
 259. But such a sale, after an offering in 
 parcels without a bid, will not be irregular : 
 Hill V. Baker, 32-308. 
 
 260. So where a sale was made of a quarter 
 section, one forty of which was the home- 
 stead, after an offer in forties, held, that this 
 was a sufficient compliance with the statu- 
 tory provision as to the sale of homesteads, 
 requiring that the portion of the property 
 not included in the homestead should be first 
 exhausted : Burmeister v. Dewey, 27-468. 
 
 And see further, Homesteads, III. 
 
 2()1. Distinct or separate parcels or tracts 
 which can have no increased value by reason 
 of being sold together cannot be sold en 
 masse even if no bid is made for them when 
 offered separately. And this is the common 
 law rule : Williams v. Allison, 33-278. 
 
 262. It may be questioned whether sale of 
 two lots together, instead of separately, is 
 such an ii-regularity as can, after the execu- 
 tion of the deed, be made available to defeat 
 the title in a third party, though it is availa- 
 ble to set aside a sale to the execution plaint- 
 iff : Love v. Cherry, 24-204. 
 
 263. Held, that a sale en masse, not shown 
 to have been to the injury of the debtor and 
 not attacked for six years, would not be set 
 aside: Cunningham v. Felker, 26-117. 
 
 2G4. A sale of a large tract within the cor- 
 porate limits of a city, held not invalid as a 
 sale en masse, it not being shown that it had 
 been divided into lots: Wallace v. Berger, 
 25-456. 
 
 265. Whether or not a sale of two parcels 
 for a gross sum will avail in a direct proceed- 
 ing to set aside the deed, it is clear that such 
 deed cannot be regarded as void in a collat- 
 eral attack : Foley v. Kane, 53-64. 
 
 266. Where it does not appear how a sale 
 is conducted, it will be presumed that the 
 officer did his duty and offered separate lots 
 or tracts separately, and if one of the tracts 
 
 Vol. 1—49 
 
 was a homestead, that the other tract or 
 tracts were first offered : Eggers v. Redwood, 
 50-289. 
 
 267. The provisions as to platting and sell- 
 ing only so much as may be necessary are 
 applicable to sales of real estate under special 
 as well as under general execution : Taylor 
 V. Tniloch, 59-558. 
 
 268. If in case of a levy upon a congres- 
 sional subdivision of laud there should be an 
 excess over all execution claims of the least 
 legal subdivision thereof, it should not be 
 sold : Humphry v. Beeson, 1 G. Gr. , 199. 
 
 269. Fraud of offleer or piirchnser: An 
 averment that there was a fraudulent agree- 
 ment between the purchaser and the officer, 
 by which the former was to pay nothing on 
 the property and that the return should not 
 be made during the year for redemption, 
 etc., etc., held not sufficient to affect the 
 validity of the sale: Cooper v. French, 52- 
 531. 
 
 270. In a particular case, held, that the 
 facts were not sufficient to show fraud : Wal- 
 lace V. Berger, 25 -456. 
 
 271. The rights of a purchaser at an exe- 
 cution sale will not be affected by the im- 
 proper conduct of the sheriff in the absence 
 of a fraudulent combination between them : 
 Swortzell v. Martin, 16-519. 
 
 272. Where it appeared that the purchaser 
 at a sale under partition proceedings had for 
 a consideration persuaded others intending 
 to bid from doing so, held, that the sale and 
 approval thereof by the court should be set 
 aside for fraud: Fleming's Heirs v. Hutchin- 
 son, 36-519. 
 
 273. Illegality: Where a second execu- 
 tion was issued at the instance of the judg- 
 ment creditor before the return of the first, 
 held, that the sale under the second should 
 be set aside, at least in a case where the cred- 
 itor was himself the purchaser at such sale : 
 Merritt v. Orover, 57-493. 
 
 274. Further held, that in such case an ex- 
 ecution could properly issue for the sale of 
 the property levied on, and remaining undis- 
 posed of by reason of the setting aside of the 
 sale: Ibid. 
 
 275. Inadequacy of price: Gross inade- 
 quacy of price is not of itself sufficient to 
 require the setting aside of a sale, but may 
 become an element quite controlling in con- 
 
770 
 
 EXECUTIONS, III. 
 
 Sale. 
 
 nection with other circumstances : Cavender 
 V. Smith's Heirs, 1-306, 355; Boyd v. Ellis, 
 11-97; Williams V. Allison, 38-378. 
 
 276. So held where there was a sale en 
 masse of separate parcels at an inadequate 
 price: Boyd v. Ellis, U-97; King v. Tharp, 
 26-383. 
 
 277. It seems that when inadequacy of. 
 price is great and the bidders were few, and 
 the power to adjourn was not judiciously 
 exercised, the sale should be set aside upon 
 application seasonably made: Swortzell v. 
 Martin, 16-519. 
 
 278. A sale was set aside in favor of bene- 
 ficiaries under an unrecorded mortgage when 
 some of them were minors, the price was 
 inadequate, there was a prior levy undis- 
 posed of, the legal title was in another than 
 the judgment defendant, and application 
 was made before the rights of third parties 
 had attached and was accompanied with a 
 tender of the amount of the judgment: 
 Miller v. ColvUle, 31-135. 
 
 279. That the interest in real estate sold 
 en masse under execution was not only 
 merely equitable, but also contingent, and 
 that there were other claims against the 
 property prior to that of the judgment 
 creditor, may be considered by the court in 
 determining the adequacy of the amount 
 paid at the sale: Twogood v. Stephens, 19- 
 405. 
 
 280. Where there was an incumbrance on 
 record against the property amounting to 
 more than the value thereof, held, that the 
 sale on execution of such property would not 
 be set aside on account of inadequacy of price 
 although subsequently the incumbrance was 
 held fraudulent and void : McDonald v. John- 
 son, 48-73. 
 
 281. In a particular case, held, that the sum 
 realized at the execution sale was so inad- 
 equate as to constitute ground for setting tlie 
 
 ^ale Eiside : Wood v. Young, 38-103. 
 
 282. In a particular case, held, that the 
 inadequacy in price was not sufficient to in- 
 validate the sale : Wallace v. Berger, 35-456. 
 
 ■283. Gross inadequacy of price is not avail- 
 able to impeach the sale as to the original 
 pnarchaser who was a stranger to the trans- 
 action, the premises having in good faith 
 been sold to a third person : Hill v. Baker, 
 33-303. And see Shine v. Hill, 23-264. 
 
 284. Mistake as to title: Where the de- 
 fendant in execution did not have any inter- 
 est at the time of the sale in the property 
 sold, or where all the interest he did have has 
 been taken away from the purchaser by 
 virtue of a prior claim, the sale may be set 
 aside. The doctrine of caveat emptor does 
 not apply to such cases : Ritter v. Henshaw, 
 7-97. 
 
 285. An action in equity may be main- 
 tained to set aside an execution sale wheie 
 the officer mistaiienly understood that tlie 
 property was covered by incumbrances to a 
 greater amount than it was in fact: Whitney 
 V. Armstrong, 33-9. 
 
 286. And especially where the circum- 
 stances show bad faith on the part of tlie 
 purchaser: Ibid. 
 
 287. Where property was bid in at execu- 
 tion under mistake as to the quantity sold. 
 held, that the sale should be set aside : Kel- 
 logg V. Decatur County, 38-524. 
 
 288. Where the property was sold and bid 
 in under a mistaken description, held, that 
 the sale should be set aside, and that, under the 
 circumstances, there was no such negligence 
 on the part of the attorney of purchaser a.s 
 to deprive him of the right to such remedy . 
 Latimer v. Jones, 55-503. 
 
 289. Where, in recording a decree ren- 
 dered in a foreclosure proceeding, the clerk 
 omitted to include a portion of the property 
 tlierein described, and this omission was per- 
 petuated in the execution and at the sale at 
 whicli plaintiff's attorney bid off the prop- 
 erty for the amount of the debt, supposing 
 that he was purchasing all that was em- 
 braced in the mortgage, held, that the sale 
 should be set aside : Snyder v. Ives, 43-157. 
 
 290. Equity will refuse to correct a mis- 
 take of this kind on the ground of negligence 
 
 only where the party seeking relief is bound '* '* '* * 
 to make inquiry which would have enabled 
 him to correct the mistake or obviate its con- 
 sequences and he negligently fails to make 
 it. In such a case, the law requires only 
 reasonable diligence to the end that culpable 
 negligence may not be encouraged : Ibid. 
 
 291. Mere uncertainty of description of 
 the property will not be a gi-ound for setting 
 aside the sale in equity where the land sold 
 is actually the same as that levied on : Hach- 
 worth V. Zollars, 30-433. 
 
EXECUTIONS, m. 
 
 771 
 
 Sale. 
 
 202. The statutory provision (Code, § 3090) 
 authorizing the setting aside of tlie sale where 
 property is sold, on which the judgment is 
 not a lien, that fact being unknown to the 
 purchaser, held not applicable to a case where 
 defendant in execution had title to the prop- 
 erty sold, and the judgment was not a lien 
 thereon because it was rendered in another 
 county and no transcript had been filed in the 
 county where the land was situated : Cham- 
 bers V. Cochran, 18-159. 
 
 293. Setting aside sale does not release 
 snrety : If the judgment is against principal 
 and surety, and the sale is set aside as author- 
 ized in the statutory provision just referred 
 to, the surety will not be held discharged, 
 unless he has by reason of the sale changed 
 his condition or been prejudiced: Ibid. 
 
 294. Caveat emptor ; defective title: The 
 doctrine of caveat emptor applies to the pur- 
 chaser at the sale under execution, and such 
 sale will not ordinarily be set aside to relieve 
 one who has acquired a defective title. If 
 the execution defendant has some interest in 
 or title to the property, the sale will be up- 
 held, although such interest be of no value : 
 Hamsmith v. Espy, 19-444; Holtzinger v. 
 Edwards, 51-383. 
 
 295. Thus where the legal title was in de- 
 fendant, but by reason of a sale under a prior 
 execution and other prior liens the interest 
 acquired by plaintiff was valueless, held, that 
 there was no ground for setting aside the 
 sale or the satisfaction of judgment affected 
 thereby: Holtzinger v. Edwards, 51-383. 
 
 296. A piurchaser at execution sale cannot 
 avoid his bid or excuse himself from paying 
 the amount by showing a defective title in 
 the judgment debtor: Dean v. Morris, 4 G. 
 Gr., 312 ; Cameron v. Logan, 8-434. 
 
 297. The fact that property sold at judicial 
 sale is covered by liens to nearly its entire 
 value -will not entitle the purchaser to re- 
 scind the sale: Downard v. Crenshaic, 49- 
 296. 
 
 298. Other grounds for setting aside: 
 Where the levy is excessive, the sale will be 
 set aside, even though the whole propei-ty 
 sold had been previously attached in the 
 same action: Cook v. Jenkins, 30-452. 
 
 299. Where the rights of a lienholder are 
 such that they will not be affected by ju- 
 dicial sale under another lien, he cannot 
 
 maintain an action in equity to restrain such 
 sale : Ruthven v. Mast, 50-715. 
 
 300. If the sale of the property of a debtor 
 is made to satisfy a joint indebtedness, tho 
 fact that the joint debtor is prejudiced by 
 such sale will not be a ground on which the 
 judgment creditor can have the sale set 
 aside: Miller v. FeVcner, 42-458. 
 
 301. The indorser of a note secured by a 
 mortgage under foreclosure of which the sale 
 is made, and who is collaterally liable on the 
 indebtedness, has such interest as to be en- 
 titled to maintain an action for setting aside 
 the sale : Whitney v. Armstrong, 32-9. 
 
 302. Where land was sold by a sheriff un- 
 der the representation that the excess bid 
 over the amount of the execution would be 
 applied to satisfy a mortgage existing thereon . 
 and the purchaser bid the whole amount of 
 the judgment and mortgage, under the be- 
 lief and representation that the excess would 
 be so applied, held, that the mistake under 
 which the parties acted was a mixed mistake 
 of law and fact, and that the sale should be 
 set aside upon application of the purchaser : 
 Bay V. Harnett, 58-344. 
 
 303. Notice of motion to set aside: An 
 order setting aside a sale on motion, without 
 notice to the other party or a voluntary ap- 
 pearance by him, is not binding upon hirn : 
 Wright v. JLedaire, 3-221 ; Lyster v. Brewer, 
 13-461. 
 
 304. The sale will not be set aside on mo- 
 tion when the purchaser is not a party to the 
 execution, at least without notice to him: 
 Osbom V. Cloud, 21-238. 
 
 305. Cnuceling satisfaction of judg- 
 ment: Where a sale has been judicially set 
 aside, the satisfaction of the judgment which 
 followed the sale and was, entered of record 
 by reason thereof should be also set aside : 
 Farmei- v. Sasseeh, 63-110. 
 
 306. Where a special execution contained 
 a description of a larger tract than the judg- 
 ment was against, and plaintiff bid it in for 
 the judgment, held competent for plaintiff 
 by motion to have the satisfaction entered 
 upon the execution canceled to the extent of 
 the excess at which the extra quantity of 
 land was bid off, leaving his judgment un- 
 satisfied to that amount: Parks v. Davis. 
 16-20. 
 
 307. Where land was sold under execution 
 
m 
 
 EXECUTIONS, III. 
 
 Sale. 
 
 to which defendant had no title, but there 
 was no evidence as to the price for which 
 the land was sold, or whether it was sold in 
 separate tracts, or the relative value of the 
 tracts at the date of sale, held, that the credit 
 on the judgment entered in pursuance of 
 such sale could not be set aside : State Bank 
 V. Harrow, 26-436. 
 
 308. Diligence: Application to vacate a 
 sale should be reasonably made. Acquies- 
 cence may be inferred from delay, and long 
 delay with knowledge of the facts may 
 justify a refusal of relief, especially if inter- 
 vening rights have attached or the circum- 
 stances have essentially changed : Chambers 
 V. Cochran, 18-159. 
 
 309. A motion to set aside a sale filed fif- 
 teen months after the sale was made, held 
 too late: Stewart v. Marshall, 4: G. Gr., 73. 
 
 310. Jurisdiction to set aside: Wliere a 
 case was taken from one court to another on 
 change of venue, and the decree rendered 
 was ordered to be recorded in the court from 
 which the change was taken, held that such 
 court had not jurisdiction to set aside a sale 
 on execution under such judgment: White 
 V. Hampton, 14-66. 
 
 311. Failure to object ; estoppel: Where 
 the debtor consents to the proceedings at the 
 sale and they are made under an agreement 
 to which he is a party, he is estopped from 
 setting up illegality or fraud for the purpose 
 of defeating such sale as against tlie pur- 
 chaser : Crawford v. Ginn, 33-543. 
 
 313. Where the debtor has knowledge of 
 a contemplated private sale and does not ob- 
 ject thereto, he will be estopped from com- 
 plaining : Maquolceta v. Willey, 35-323. 
 
 313. Objection to a sale 'on the ground 
 that it was made en masse, not raised until 
 eleven years afterwards, it not appearing 
 that the execution defendant was in any 
 manner injured thereby, held not suflBcient 
 to warrant setting it aside : Wood v. Young, 
 38-102. 
 
 314. Where irregularities in a sale were 
 not taken advantage of for eight years, held, 
 that by such lajjse of time they were cured : 
 Coriell v. Ham, 4 G. Gr. , 455. 
 
 315. The execution defendant, having 
 knowledge of irregularities in the manner of 
 sale before the making thereof, and not ob- 
 jecting thereto, cannot defeat the title under 
 
 the deed, at least without offering to refund 
 the purchase money. The irregularities should 
 be taken advantage of by motion in the court 
 to which the execution is returnable : Cooley 
 V. Wilson, 43-425. 
 
 316. Where a surety, against whom judg- 
 ment on a debt was recovered jointly with 
 the principal, directed execution to be levied 
 upon property of the principal which was 
 sold thereunder, held, that such surety could 
 not afterwards, as against the purchaser at 
 the sale, Insist upon and foreclose a mortgage 
 given him on the same property by the prin- 
 cipal, to sec-ure him for any liability which 
 he might incur as such surety: Exline v. 
 Lowery, 46-556. 
 
 317. Where it appeared that the party 
 against whom execution was issued knew 
 that another execution was in existence un- 
 der the same judgment, and not only stood 
 by and made no objection to the sale under 
 the second, but at the expiration of the time 
 for redemption surrendered the possession of 
 the property, held, that he could not there- 
 after, in the absence of a showing that the 
 land was sold for less than its value and an 
 offer to pay the judgment, take advantage 
 of the error : Merritt v. Grover, 61-99. 
 
 318. Where the execution purchaser has 
 conveyed portions of the property to other 
 purchasers in good faith, even though there 
 is such irregularity in the sale that it might 
 have been held void as to such purchasers, if 
 promptly asserted, yet great delay in taking 
 it may be ground for upholding the sale as 
 to them : Williams v. Allison., 33-378. 
 
 319. Return of purchase money: A party 
 seeking to have an execution sale to him set 
 aside must return or offer to return the 
 property, or, if he has sold it in good faitli 
 before knowledge of defect in the sale, must 
 tender the proceeds: First Nat. Bank v. Con- 
 gei; 37-474. 
 
 320. Where, on account of irregularities, 
 a sale was set aside so far as the property 
 remained in the hands of the purchaser, but 
 there was no proof of fraud, held, that as to 
 the portions of the property conveyed by 
 
 jhim, he would be charged with its propor- 
 tion of the amount bid and not with the 
 amount for which it had been sold by hhn, 
 the owner having lost his right to proceed 
 against the persons deriving title from the 
 
EXECUTIONS, III. 
 
 773 
 
 Sale. 
 
 purchaser by reason of laches: Williams v. 
 Allison, 33-278. 
 
 321. A judgment .plaintiff who has re- 
 ceived the proceeds of a sale under his judg- 
 ment, which is of doubtful validity, and 
 afterwards accepts money deposited as a ten- 
 der, will be held to have taken such tender 
 in full satisfaction of his judgment, and will 
 be required to account for the full proceeds 
 of the sale : Cotter v. CConnel, 48-552. 
 
 322. No tender of the amount bid need be 
 made to the purchaser where it is sought to 
 set aside a sale which is void: Osborn v. 
 Cloud, 33-104. 
 
 323. Where the purchaser at an execution 
 sale pays his money without any knowledge 
 of irregularities therein, he is entitled, upon 
 the sale being set aside, to have refunded to 
 him the money paid, and for that purpose 
 may be subrogated to the rights of the ex- 
 ecution plaintiff, although such plaintiff 
 may have afterwards received full satisfac- 
 tion of his judgment: Fleming v. Maddox, 
 83-493. 
 
 324. Liability for rent or waste: The 
 purchaser of premises under a foreclosure 
 Bale afterwards set aside is not liable for rent 
 or waste accruing between such sale and 
 annulment, if possession was taken by an- 
 other without his knowledge and he was not 
 in any manner connected with the acts of the 
 tenant: Vulgamore v. Stoddard, 21-115. 
 
 325. Evidence of sale: To establish title 
 under a sale on execution, the purchaser may 
 give in evidence the judgment and execution 
 under which the property was sold and prove 
 the sale, which may be done by the sheriff's 
 deed or the return on the execution : Lepage 
 V. McNamara, 5-124. 
 
 326. Talidity; presumptions: A pur- 
 chaser at execution sale is only required to 
 look at the judgment, execution, levy and 
 sale under appraisement. If these are in con- 
 formity with the law, j^rima facie he is jus- 
 tified in paying the price required by law for 
 the property, and he is only required to ascer- 
 tain the amount as returned and need not go 
 into an examination of the action of the 
 appraisers: Johnson v. Carson, '6 G. Gr., 
 499. 
 
 327. "When such a sale appears to have 
 been regularly conducted bj' virtue of a judg- 
 ment rendered, final and conclusive, the 
 
 rights of a purchaser cannot be affected by 
 any error or irregularity in the judgment: 
 Ibid. 
 
 328. The purchaser depends upon the judg- 
 ment, levy and deed. All other questions 
 are between the parties to the judgment and 
 the officer. Therefore, a failure to make an 
 appraisement as required by law would not 
 render the sale void as to the purchaser: 
 SJiaffer v. Bolander, 4 G. Gr., 201. 
 
 329. The purchaser has a right to rely upon 
 the judgment, levy and deed. These being 
 valid he cannot be affected by other irregu- 
 larities of which he has no notice : Cooley v. 
 Wilson, 42-425. 
 
 330. Where the oflicer making the sale has 
 power to make it, and there is merely a fail- 
 ure on his part to comply with some stat- 
 utor3' provision, directory in its character, 
 the title of the purchaser will be protected in 
 the .ibsence of fraud: Cavender v. Smith's 
 Heirs, 1-306. 
 
 331. Therefore, held, that a former statute 
 requiring personal property to be exhausted 
 before real property was levied upon, and 
 that real property not occupied by defendant 
 should be exliausted before that occupied by 
 him, was directory, and the failure of the 
 officer to comply with these as well as with 
 other such provisions as to notice, return, 
 etc.. would, in the absence of fraud, not viti- 
 ate the sale : Ibid. 
 
 332. A sale should not be held void and 
 liable to collateral attack for mere irregular- 
 ities, for instance in the selection of apprais- 
 ers : Hill V. Baker, 32-302 ; Davis v. Spaulding, 
 36-610. 
 
 333. A bona fide purchaser, even if he be 
 the execution plaintiff, is not affected by any 
 irregularity of the sheriff in giving notice and 
 conducting the sale: Coriell v. Ham,, 4 G. 
 Gr., 455. 
 
 334. Irregularities such as a sale en masse 
 or before the hour fixed in the notice will not 
 affect the title in such purchaser : Olmstead 
 V. Kellogg, 47-460. 
 
 335. It will te presumed that the officer 
 did his duty and made the sale within the 
 hours directed by law, although the notice 
 fixed the time for the sale during hours 
 some of which are not thus authorized bylaw : 
 Cole V. Porter, 4 G. Gr., 510. 
 
 Further as to the presumption of regu- 
 
iU 
 
 EXECUTIONS, IV. 
 
 Eights of purchaser. 
 
 larity arising from- the execution of the deed, 
 see infra, §§ 380-388. 
 
 33(). Liability ol' officer: A purchaser of 
 Ijroperty on which execution has been levied 
 under a void judgment may maintain action 
 against the ofiBoer for unlawfully selling the 
 Ijroperty. It is not necessary to entitle him 
 to recover that he should have owned the 
 property prior to levy: Oates v. Neimeyer, 
 54^110. 
 
 337. The policy of the law is to uphold 
 judicial sales, and they will not be held in- 
 valid for iri'egulariti^s in the acts of the of- 
 ficer. If the one making the sale holds him- 
 self out to be a public ofScer, or acts as an 
 officer de facto, he cannot be heard to object 
 that he is not an officer de jure. By acting 
 as an officer, he estops himself from deny- 
 ing his right to do so, even when indicted 
 for malfeasance : State v. Stone, 40-547. 
 
 In general, see Officers, V. 
 
 IV. Rights of puechasek; assign- 
 ment OF cebtificate; deed. 
 
 338. Biglils of purchaser: The rights ac- 
 quired by a purchaser of personal property 
 at execution sale are only the rights of a 
 jvidgment defendant at the time of levy. 
 They are subject to the rights of a prior pur- 
 chaser: Rakestraw v. Hamilton, 14r-147. 
 
 339. Where, without fraud, the execution 
 defendant has sold his interest in the prop- 
 erty before seizure under the process, al- 
 though notice of such sale is not brought 
 home to the execution plaintiff or the officer 
 until after such seizure, the rights acquired 
 under such previous sale are paramount to 
 those acquired under the process : Thomas v. 
 Hillhouse, 17-67. 
 
 340. A purchaser at sale under execution 
 acquires no title where it is apparent of 
 record that the judgment debtor has no in- 
 terest in or title to the property sold : Stuart 
 
 V. Hines, 33-00. 
 
 341. The purchaser at execution sale with- 
 out actual notice of a mortgage executed 
 after the lien of the judgment has attached 
 and not recorded until after the sale is not 
 affected thereby : Wood v. Young, 38-103. 
 
 342. Where the purchaser at execution 
 sale had notice of a prior conveyance of 
 the property, but ajch conveyance appeared 
 
 by the record to have been made at such 
 time that it was subject to the lien un- 
 der which the judicial sale was had, held, 
 that in order to affect the purchaser at the 
 execution sale with notice that such convey- 
 ance was superior to his rights, it must ap- 
 pear that there was something to indicate 
 that the conveyance was made in fact before 
 the time indicated by the record of the deed : 
 Brown v. Wade, 43-647. 
 
 343. A purchaser at an execution sale 
 does not acquh-e priority over the purchaser 
 at a previous foreclosure sale under a mort- 
 gage executed and of record before the sale 
 under execution was had : Bell v. Hall, 4 G. 
 Gr., 68. 
 
 344. Facts of a particular case held not to 
 impute to the purchaser at judicial sale no- 
 tice of an equitable interest in the property 
 held by a tliird party: Bonnell v. Allerton, 
 51-166. 
 
 345. A sheriff's deed under a sale on exe- 
 cution not only operates to transfer the prem- 
 ises sold, but relates back to the day when 
 the judgment became a lieu on the premises, 
 and as againstthe purchaser avoids all imme- 
 diate liens and alienations: Kane v. Mink, 
 64-84. 
 
 34G. The attorney of the execution plaint- 
 iff, purchasing at a salS under execution of 
 property levied on by attachment, is not to 
 be deemed an innocent purchaser. He and 
 his heirs holding under him are chargeable 
 with equities or any illegalities in the pro- 
 ceedings : Cook V. Jenkins, 80-458. 
 
 347. An execution plaintiff who purchases 
 at the sale in good faith, and before notice 
 of appeal, will be protected to the same 
 extent as a stranger : Frazier v. Craft, 40- 
 110. 
 
 348. A judgment creditor purchasing under 
 execution an equitable interest in leal estate 
 takes subject to prior equities of third per- 
 sons of which he has no notice : Wallace v. 
 Bartle, 31-346. ^ 
 
 349. The plaintiff in execution who pur- 
 chases at the sale is protected against out- 
 standing equities of which he has no notice, 
 actual or constructive, before the sale. He 
 stands upon the same ground as any other 
 purchaser: Butterfield v. Walsh, 36-584, and 
 cases cited. And see Bear v. Burlington, C. 
 R. & M. B. Co., 48-619. 
 
EXECUTIONS, IV. 
 
 Assignment of certificate ; deed. 
 
 And see further on this point, RECORDING 
 Acts, III, a. 
 
 The purchaser at execution sale of personal 
 property has priority over a chattel mortgage 
 of which he had no actual or constructive no- 
 tice before levy : See Recording Acts, III, d. 
 
 350. Assignment of certificate oV pur- 
 chase: The assignment to a junior lienholder 
 fif the certificate of purchase "and the lands 
 therein described," held to transfer to the 
 assignee not only the title under the certifi- 
 cate, but also the purchaser's right under a 
 tax-title which was matured in his hands at 
 the time of the assignment : Scribner v. Van- 
 dercook, 54-580. 
 
 351. The assignee in good faith of the cer- 
 tificate of purchase from a purcliaser at the 
 sale cannot be held responsible for the appli- 
 cation of the purchase money by the sheriff: 
 Oray v. Dye, 39-360. 
 
 352. Where a creditor pays money to the 
 purchaser, claiming it to be by way of re- 
 demption, and takes an assignment of the 
 certificate, he acquires by such assignment 
 the rights of the purchaser, even though his 
 redemption is not effectual : Wilson v. Oonk- 
 lin, 22-453. 
 
 353. A junior lienholder may become the 
 purchaser at a sale under a prior lien, or may 
 take an assignment of a certificate of pur- 
 chase under such sale ; and where the acts of 
 such junior lienholder were not such as re- 
 quired by statute in case of redemption, held, 
 that they would be considered as a purchase 
 rather than an attempt to redeem : Streeter 
 V. First Nat. Bank, 53-177. 
 
 354. Where the holder of a portion of the 
 notes secured by mortgage foreclosed the 
 mortgage and bid off a portion of the land, 
 and also procured the assignment to him of 
 ,the certificate of purchase of the same prem- 
 ises at a sale of the balance of the land for 
 the remaining note secured by the mortgage, 
 and also purchased at judicial sale the equity 
 of redemption of a grantee of the land who 
 had taken it agreeing to pay the mortgage, 
 held, that the assignment of the certificate 
 was in the nature of a redemption : Brooks 
 i: Keister, 45-303. 
 
 355. The assignee of a certificate of pur- 
 chase takes it subject to any equities existing 
 against the assignor : Van Gordcr v. Limdy, 
 66-448. 
 
 35(>. A purchaser of an equity of redemp- 
 tion has no rights other than those of the 
 execution debtor, and cannot, on making 
 redemption from the holder of the certificate 
 of purchase, insist upon the assignment of 
 such certificate : Hum v. Hill, 70 . 
 
 357. The legal title of the owner of the 
 property is not divested and transferred to 
 the purchaser until the expiration of the 
 period of redemption. During the period 
 of redemption, the purchaser has an equi- 
 table title only, which may or may not ripen 
 into a legal title: Shimer v. Hammond, 51- 
 401. 
 
 358. The purchaser acquires only a lien 
 for tlie amount of his purchase money and 
 interest, which may ripen into a perfect title 
 at the expiration of the time allowed for re- 
 demption : Curtis v. Millard, 14^138. 
 
 359. Right to crops, rent, etc.: The es- 
 tate of the debtor is not divested until exe- 
 cution of the deed, and any crops upon the 
 premises already matured do not pass 
 thereby, although they were not matured 
 when the purchaser became entitled to his 
 deed : Everingham v. Braden, 58-133. 
 
 360. A purchaser under an execution sale 
 is entitled to the rent accruing or faUing due 
 after the execution of tlie sheriff's deed, and 
 the fact that the sale is in an action by at- 
 tachment upon notice by publication does 
 not prevent the application of the rule: 
 Townsend v. Isenberger, 45-670. 
 
 301. Where a party, by holding over after 
 the execution of a sheriff's dead to the prem- 
 ises, becomes a tenant at will, he becomes so as 
 to the land in its condition at that time' and 
 liable to action for the rental value of the 
 premises with immatured crops growing 
 thereon : Martin v. Knapp, 57-336. 
 
 3()3, After the execution of the sheriff's 
 deed the tenant of the former owner ceases 
 to have any right to the possession, and if 
 he takes crops therefrom, he must account 
 to the execution* purchaser and not to the 
 former owner : Ibid, 
 
 363. A tehant of tlie execution defend- 
 ant, sowing or planting crops after the sale, 
 with knowledge that they cannot be har- 
 vested before the expiration of the period of 
 redemption, is not entitled to possession for 
 the purpose of harvesting such crops, after 
 t!'.e right of the purcl-sser to possession under 
 
T76 
 
 EXECUTIONS, IV. 
 
 Assignment of certificate ; deed. 
 
 his deed has become complete; Wheeler v. 
 Kirkendall, 67-612. 
 
 364. Sheriff's deed: The recital of the ex- 
 ecution in a sheriff's deed is not essential to 
 its validity, and any variance or mistake in 
 such recital will not impair the deed : Hum- 
 phry V. Beeson, 1 G. Gr., 199. 
 
 305. Sufficiency of description in the deed 
 may cure any uncertainty of description in 
 the levy and return : Hopping v. Burnam, 2 
 G. Gr., 39. 
 
 366. The sheriff in office at the time the 
 deed is executed is the proper person to make 
 a deed, and not a person who was sheriff at 
 the time of the sale but whose term of office 
 has expii-ed : Conger v. Converse, 9-554. 
 
 367. The fact that the deed is executed by 
 a deputy is no cause for setting it aside at 
 the instance of the defendant in execution: 
 Chase v. Parker, 14-207. 
 
 368. A deed issued prior to the expiration 
 of the period of redemption is not necessa- 
 rily void. It may be equivalent to a certificate 
 of purchase, and admissible in evidence for 
 the purpose of sliowing the sale : Warfield v. 
 Woodivard, 4 G. Gr., 386. 
 
 369. The fact that the sheriff gives a deed 
 absolute in form instead of issuing a certifi- 
 cate of purchase will not defeat the right of 
 redemption and cannot be considered preju- 
 dicial to a party entitled to redeem : Olmstead 
 V. Kellogg, 47-460. 
 
 370. The fact that the deed is improperly 
 executed before the expiration of the period 
 of redemption will not render it invalid, if 
 redemption is not made: Conner v. Long, 
 63-295. 
 
 371. If the deed is issued to one who is not 
 a purchaser, the presumption is that the 
 sheriff had evidence of the fact that the pur- 
 chaser's rights had been ti-ansferred to the 
 person to whom the deed was issued : Ibid. 
 
 372. To ivhom deed luade: The judgment 
 debtor and the purchaser are ordinarily the 
 only parties who can object that the right of 
 redemption has not been properly exercised, 
 and where money had been paid for the pur- 
 pose of making the redemption, by a party 
 claiming the right to redeem, and had been 
 accepted by the purchaser and the certificate 
 assigned, held, that the sheriff could not re- 
 fuse to make a deed to the assignee of the 
 certificate on any real or supposed right in 
 
 the execution plaintiff to resist such redemp- 
 tion : Kilbride v. Munn, 55-445. 
 
 3 73. The sheriff may make his deed to a 
 different person from the purchaser, with 
 such purchaser's consent : Ehleringer v. Mor- 
 iarty, 10-78. 
 
 374. Where the person making redemption 
 is the owner, or redeems as owner and not 
 as creditor, he is not entitled to a sheriff's 
 deed : Dickerman v. Lust, 66-444. 
 
 375. Kecording; notice: One who, in 
 good faith, purchases the property after the 
 expiration of twenty days beyond the period 
 of redemption (as provided by Code, § 3125), 
 and before the recording of the sheriff's deed, 
 is not affected with constructive notice of 
 the proceedings : Harrison v. Kramer, 3-54-3 ; 
 Churchill v. Morse, 23-229. 
 
 376. But a failure to record the deed is not 
 material as against one who is not a pur- 
 chaser in good faith, or who purchases with 
 actual notice of the sale : Harrison v. Kra- 
 mer, 8-543 ; Walker v. Schreiber, 47-529, 533. 
 
 377. A party cannot complain of delay in 
 taking and recording the sheriff's deed, unless 
 he acquires his interest after twenty days 
 from the expiration of the period of redemp- 
 tion: Woodv. Young, 38-103. 
 
 378. The constructive notice of the sheriff's 
 sale, imparted by the publicity of the proceed- 
 ings themselves and the recording of the 
 sheriff's deed, affect only those persons claim- 
 ing under the title divested by the sale and 
 not those claiming under an independent or 
 hostile title: Hultz v. Zollars, 39-589; Gard- 
 ner V. Jaques, 42-577. 
 
 379. Where the certificate is assigned by 
 the purchaser to a third person, failure by 
 the assignee to put his deed on record will 
 not defeat his claims as against a subsequent 
 purchaser from the assignors. The require- 
 ment of notice applies only as against pur- 
 chasers from the judgment defendant: 
 Lindley v. Mays, 66-265. 
 
 380. A levy upon and sale of land in 
 another county than that in which the judg- 
 ment is rendered, without the filing of a 
 transcript of the judgment, are not proceed- 
 ings of which a subsequent purchaser of the 
 property is bound to take notice until the 
 deed is actually recorded : McOinnis v. Edgdl, 
 39-419. 
 
 381. The deed, when duly executed and 
 
EXECUTIONS, IV, V. 
 
 Y77 
 
 Deed. — Redemption. 
 
 recorded, is notice of the prior proceedings, 
 and it is immaterial whether the judgment 
 under which the execution issued was prop- 
 erly indexed or not: Cushing v. Edwards, 
 68-145. 
 
 382. Taking deed for beiieflt of another: 
 A contract wliereby a third person was to 
 purcliase certificates of sale of real property 
 sold under execution, and upon securing a 
 deed to the property convey a portion or all 
 of it to the other party to the contract, who 
 had lost his right of redemption, held not to 
 constitute a mortgage, or to entitle the latter 
 to any right of redemption except in ac- 
 cordance with the express terms of the con- 
 tract ; Hensley v. Whiffin, 58-426. 
 
 383. Where a purchaser under execution 
 agrees to convey to the debtor the property 
 purchased upon being paid a certain amount 
 within a certain time, the debtor cannot, 
 after failure to pay the amount within the 
 time agreed, maintain an equitable action to 
 redeem ; Tarkington v. Corley, 59-28. 
 
 384. In a particular case, held, that even 
 though a purchase at execution sale was 
 made for the benefit of another with the right 
 to him to avail himself thereof upon pay- 
 ment of certain specified amounts, yet the 
 party seeking to avaU himself of the pur- 
 chase did not show such payments as to 
 entitle him to the benefits of the agreement : 
 Jack V. Brown, 60-371. 
 
 385. Under particular facts, lield, that the 
 purchase at execution sale was in trust, and 
 that sufficient steps for redemption having 
 been taken, the execution of the sheriff's deed 
 should have been ordered to be made to the 
 person who, by agreement between the par- 
 ties, had effected the redemption: Kennedy 
 V. Stranahan, 39-205. 
 
 386. Presumptions in favor of deed: 
 Where a sheriff's deed is silent as to the 
 nature of the writ under which the sale is 
 made, and no other evidence is offered, the 
 sale is to be presumed regular (Code, g 3126) : 
 Childs V. McChesney, 20-431. 
 
 387. But aside from statutory provisions, 
 it is not evidence of the regularity of prior 
 proceedings, nor even of the existence of the 
 judgment or execution. So held in case of 
 a sale under strict foreclosure without pro- 
 ceedings in court, according to the ijrovisions 
 of Code of 1851 : Seevers v. Drennon, 29-235. 
 
 388. Recitals in a sheriff's deed to the ef- 
 fect that at the sale the property conveyed 
 was struck off to the purchaser " together 
 with other real estate . . . for the sum 
 of," etc., hjild not sufficient to show a sale 
 for a gross sum and overcome the presump- 
 tion that the officer selling did his duty : Foley 
 V. Kane, 53-64. 
 
 Further as to presumptions in favor of 
 the sale, see supra, g§ 326-335. 
 
 In general as to presumptions to be enter- 
 tained to support a judicial sale, as, for in- 
 stance, in case of a sale under proceedings 
 by guardian, administrator, etc., see Guakd- 
 lANSHip, g§ 55-59: Estates op Decedents, 
 §§ 257-259. 
 
 389. Abandonment of sale: Where a sale 
 was made under execution, but no deed de- 
 livered in pursuance thereof for four years, 
 and, in the meantime, a second sale of the 
 same property was made to another party, 
 held, that the neglect of the purchaser at the 
 first sale to take a deed must be regarded as 
 an abandonment of his rights under the sale, 
 and that a deed subsequently issued to him 
 would not take priority over the intervening 
 sale to a third person : Walker v. Stannis, 3 
 G. Gr.,440. 
 
 V. Redemption. 
 
 390. Sale wilhout redemption: As there 
 might possibly be circumstances under which 
 a court of equity might order a sale of real 
 property without redemption, a decree order- 
 ing a sale without redemption, while it may 
 be erroneous, will not be void for want of 
 jurisdiction : Truer v. Whitman, 56-448. 
 
 391. So, although it is held in the federal 
 courts that decrees in foreclosure proceedings 
 in such courts in this state where, by state 
 laws, redemption from foreclosure sale is pro- 
 vided for, should not order an absolute sale 
 without redemption, yet such adecree, though 
 erroneous, will not be void and cannot be col- 
 laterally attacked: Moore v. Jeffers, 53-202. 
 
 882. Where land was sold under the ap- 
 praisement law of 1860, and notice of election 
 to have the sale made subject to redemption 
 was not filed with the clerk within the time 
 required by that statute, held, that defend- 
 ant was not entitled to have the sale set aside 
 and made subject to redemption : Oillett v. 
 Edgar, 22-293. 
 
T78 
 
 EXECUTIONS, V. 
 
 Redemption. 
 
 393. Sedemption in foreclosure proceed- 
 ing's: Where it was provided by statute that 
 foreclosure sales should be subject to redemp- 
 tion as in ease of sales under general execu- 
 tion, and afterTfards other statutoiy provis- 
 ions as to redemption were made, held, that 
 such provisions were applicable to sales on 
 foreclosure although such sales were not 
 specifically mentioned: Davis v. Spaulding, 
 36-610. 
 
 The provisions as to redemption are now 
 by statute made applicable to sales under 
 foreclosure : See Mortgages, VII, b. 
 
 394. Pci-iod for redemption: Under a 
 statutory provision, not now in force, which 
 authorized action at law on a note secured 
 by mortgage, and provided that the .Judg- 
 ment in such case might be declai-ed a lien 
 from the date of the recording of the mort- 
 gage, and that the mortgagor or a lien- 
 holder, might redeem from such sale as from 
 any other sale under execution, held, that a 
 lienholder, although not a party to the pro- 
 ceeding, could not redeem except within the 
 time and in the manner thus provided: 
 Mayer v. Farmers' Bank, 44-212. 
 
 395. Where the execution and return were 
 kept in the office of the attorney for the exe- 
 cution plaintiff, and not filed in the clerk's 
 office, and an inquiry there, and also of the 
 attorney, failed to secure a knowledge of the 
 amount necessary to effect redemption, lield, 
 that upon a tender being made after the ex- 
 piration of the time for i-edemption it should 
 have been allowed : Hammersham v. Fairall, 
 44-462. 
 
 396. The fact that property is misdescribed 
 in a mortgage and sale thereunddr, and that 
 the description is subsequently corrected 
 during the period of redemption, the party 
 entitled to I'edeem being a party to the pro- 
 ceeding and asking no relief, will not operate 
 to extend the period for redemption : McKis- 
 sick V. Mill Owners' Mut. F. Ins. Co., 50-116. 
 
 397. The statutory right to redeem within 
 one year cannot be extended by an act of 
 the party claiming the right, such as a suit 
 to redeem or the like, without more : Hughes 
 V. Feeter, 23-547. 
 
 398. In a particular case, lield, that an ac- 
 tion brought by a purchaser of land at an 
 execution sale against execution defendant 
 during the period for redemption, in which 
 
 it was sought to have the title declared to be 
 in the purchaser as against such execution 
 defendant, did not constitute a fraud against 
 the execution defendant, such as to entitle 
 him to make equitable redemption after the 
 statutory period had expired: Bradford v. 
 Bradford, 60-201. 
 
 399. Where, by reason of a mistake of the 
 clerk in computing the amount required to 
 redeem, the amount paid was not quite suf- 
 ficient, held, that the redemptioner might, 
 after the expiration of the year, have equi- 
 table relief against the deed upon paying the 
 deficiency and interest on the whole amount 
 up to the time of completing the redemp- 
 tion : Wakefield v. Bofherham, 67-444. 
 
 400. In computing the year allowed for re- 
 demption, the day of sale is excluded, and 
 redemption may be made any time during 
 the corresponding day of the same month of 
 the next year : Teucher v. Hiatt, 23-537. 
 
 401. Eedemplion waived: By statutory 
 provision the taking of an appeal defeats the 
 right of redemption, and it is immaterial 
 whether a supersedeas bond is filed on the 
 appeal or not : Dobbins v. Lusch, 58-304. 
 
 402. The statutory provision that stay of 
 execution waives the right of redemption is 
 applicable to cases where such stay is taken in 
 a justice's court where the judgment is ren- 
 dered, and afterwards a sale of real property 
 under such judgment is had by filing a tran- 
 script thereof in the circuit court ; Brown v. 
 Markley, 68-689. 
 
 403. The restriction upon the right of re- 
 demption in case of taking an appeal or stay 
 of execution does not apply to creditors who 
 would otherwise be entitled to redeem, and 
 such creditors have the same right to redeem 
 in case the debtor takes an appeal or a stay 
 as in other cases : Sieben v. Becker, 53-24. 
 
 404. An appeal or stay of execution by the 
 execution debtor will not defeat the right of 
 redemption by his vendee: Thayer v. Col- 
 dren, 57-110. 
 
 405. Who may redeem: The right of re- 
 demption may be in both the judgment 
 debtor and his vendee where the property 
 has been conveyed with covenants of title 
 prior to the execution sale : Harvey v. Spauld- 
 ing, 16-397. 
 
 406. The vendee of an execution defend- 
 ant may redeem. He is to be considered as 
 
EXECUTIONS, V. 
 
 T79 
 
 Redemption. 
 
 within the meaning of the term "defendant," 
 as used in the statute (Code, § 3103) : Thayer 
 V. Coldren, 57-110. 
 
 407. A judgment creditor who has pur- 
 chased the property under his execution may 
 redeem from a sale made under a senior 
 judgment lien: Seevers v., Wood, 13-395. 
 
 408. And an attorney who has bought in 
 the property for his client at a sale under 
 execution in favor of such client may exer- 
 cise such right of redemption which the 
 chent would have as against another sale un- 
 der senior judgment : Ibid. 
 
 409. A junior lienholder whose debt ante- 
 dates the homestead may redeem from the 
 sale of the homestead under a senior lien, 
 and, for the purpose of entitling himself to 
 tlius redeem, may show by evidence aliunde, 
 as against the senior lienholder who has 
 purchased at the execution sale, the fact as 
 to the date of his claim with reference to the 
 commencement of the homestead right: 
 Phelps V. Finn, 45-447. 
 
 410. A creditor holding a judgment which 
 is a lien upon real property of his debtor may 
 become the purchaser of such real property 
 at a sale under another judgment, and make 
 redemption from such sale in the same man- 
 ner as if some other person had been the pur- 
 chaser : Citizens' Savings Bank v. Percival, 
 61-183. 
 
 411. An execution creditor who has bid in 
 the property under his own execution does 
 not have a lien upon such property for any 
 unsatisfied balance of his claim by virtue of 
 which he or his assignee can redeem under 
 such sale. (Overruling Crosby v. Elkader 
 Lodge, 16-399) : Clayton v. Ellis, 50-590. 
 
 412. Where the execution defendant has 
 no right of redemption, a judgment creditor, 
 who did not become such until after the sale, 
 cannot redeem: Brown v. Markley, 58-689. 
 
 413. Where the party seeking to redeem 
 was one of several plaintiffs at whose suit the 
 ■property in question was in equity declared 
 subject to their judgments and sold to satisfy 
 the same, held, that redemption could not be 
 made by him : Hayden v. Smith, 58-385. 
 
 (414. A judgment creditor of a grantor, 
 who has made a fraudulent conveyance, has 
 not such a lien upon the .property thus con- 
 veyed as to entitle him to redeem the same 
 fro-ii execution sale, made under a decree 
 
 obtained by other judgment creditors sub- 
 jecting such property to the lien of their 
 judgments : Rowland v. Knox, 59-46. 
 
 416. A holder of a simple judgment lien 
 has not an equitable right to redeem from a 
 senior lienholder, after the execution of the 
 sheriff's deed, made in pursuance of a sale 
 thereunder. So held in case of a sale under 
 foreclosure of a mechanic's lien, made under 
 the Revision, which provided that such ac- 
 tions should be at law : Diddy v. Risser, 55- 
 699. 
 
 As to right of equitable redemption in gen- 
 eral, see Mortgages, VII, u. 
 
 416. A mortgagee may redeem from an 
 execution sale of the property covered by his 
 mortgage, although the liability secured by 
 the mortgage is only a. contingent one and 
 may possibly never ripen into a -lertainty: 
 Crossen v. White, 19-109. 
 
 41 7. A mortgagee cannot, after buying in 
 the property at his own foreclosure sale for 
 a portion of his judgment, redeem under 
 such sale by virtue of the judgment held by 
 him, either before or after a, redemption is 
 made by the mortgagor. The purchase of 
 the property at the sale exhausts his lien 
 with reference thereto: Todd v. Davey, 60- 
 533. 
 
 418. Neither can an assignee of a portion 
 of the mortgage debt redeem from a sale on 
 foreclosure of another portion of such debt, 
 whether his assignment was made before or 
 after such foreclosure : Harms v. Palmer, 61- 
 483. 
 
 That the sale of property covered by a 
 mortgage under foreclosure tliereof exhausts 
 the rights of the mortgagee in such property, 
 see Mortgages, g§ 417-419. 
 
 419. A party who has no interest in the 
 property sold, but is only liable as surety or 
 otherwise for the payment of the indebted- 
 ness for which the sale is made, has not a 
 right to redeem: Brooks v. Keister, 45-303; 
 Miller v. Ayres, 59-434. 
 
 420. The holder of a mechanic's hen before 
 judgment thereon not being entitled to re- 
 deem (under provisions of Code, § 3103), he 
 does not become entitled to redeem by obtain- 
 ing a mere money judgment on his claim 
 against a person not the owner of the prop- 
 erty upon which the lien is claimed : Spink 
 V. McCall, 53-433. 
 
780 
 
 EXECUTIONS, V. 
 
 Redemption. 
 
 421. Sale of debtor's redemption right: 
 
 Defendant's right of possession and redemp- 
 tion during the statutory period may be lev- 
 ied upon and sold under execution : Barnes v. 
 Cavanagh, 53-37 ; Crosby v. Elkader Lodge, 
 16-399. 
 
 422. But such redemption right cannot be 
 sold under an execution issued on the balance 
 of the same judgment under which the origi- 
 nal sale was made: Hardin v. White, 63- 
 633. 
 
 423. By the first sale, the creditor ex- 
 hausts his right as to the property, and it is 
 immaterial that the same indebtedness is em- 
 braced in two different decrees, one by fore- 
 closure of a personal property mortgage, and 
 the other upon foreclosure of a mortgage on 
 real property. If real property is sold under 
 special .execution issued under a decree on 
 foreclosure of the real property mortgage, the 
 debtor's right of redemption therein cannot 
 be levied on and sold under a general execu- 
 tion issued upon a decree rendered in fore- 
 closure of the personal property mortgage: 
 Ihid. 
 
 424. A judgment recovered against the 
 debtor during the period allowed him for re- 
 demption becomes a lien on his interest in 
 property in which he has the right of re- 
 demption, and in case he or his gi-antee by 
 conveyance made after such judgment re- 
 deems from the prior sale, such judgment 
 may be enforced against the property so 
 redeemed, although the holder of the judg- 
 ment failed to exercise his own statutory 
 right of redemption from the sale : Curtis v. 
 Millard, 14-128. 
 
 425. After redemption by the debtor or 
 his grantee or assignee of land sold in partial 
 satisfaction of a judgment, it at once be- 
 comes liable to pay the unsatisfied balance of 
 such judgment: Crosby v. Elkader Lodge, 
 16-399 ; Stein v. Chambless, 18-474. 
 
 426. Therefore, held, where a debtor con- 
 veyed his right of redemption to his wife and 
 furnished her the money to make redemp- 
 tion, with intent to hinder and delay his 
 creditors, the land so redeemed remained 
 subject to the balance of the judgment: 
 Pedkenbaugh v. Cook, 61-477. 
 
 427. Time for redemption by creditor or 
 lienholder: A creditor or lienholder cannot 
 make statutory redemption after the expira- 
 
 tion of nine months : Newell v. Pennick, 63- 
 123. 
 
 428. And this is so, even though the pur- 
 chaser is also a junior judgment creditor: 
 George v. Hart, 56-706. 
 
 429. Redemption by creditor within the 
 first six months, during which the debtor's 
 right to redeem is exclusive, will be good as 
 to a subsequent lienholder. It is only the 
 debtor and purchaser who can object to such 
 redemption : Wilson v. Conklin, 23-452. 
 
 430. The time within which the creditor 
 may redeem cannot be enlarged by the assent 
 of the purchaser: Hum v. Hill, 70 . 
 
 431. Method of making redemption: In 
 redemptions made before the expiration of 
 nine months before the date of sale, the re- 
 demption is to be performed by the parties 
 themselves, without the aid of the clerk, and 
 the only evidence of the transaction neces- 
 sary is the proper transfer of the certificate 
 of sale. The statutory provisions with refer- 
 ence to the action of the clerk are aijplicable 
 only to redemptions, as provided for, after 
 the expiration of nine months: Ooode v. 
 Cummings, 35-67. 
 
 432. These statutory provisions as to the 
 amount to be paid in order to effect redemp- 
 tion refer to statutory redemption from exe- 
 cution sale, and not to a case where a junior 
 lienholder, not made party to a foreclosure 
 pi-oceeding, seeks to redeem from the sale 
 thereunder by an action in equity : Jones v. 
 Hartsook, 42-147. 
 
 433. Such junior lienholder seeking to re- 
 deem in equity from a prior judgment under 
 which there has been no sale must pay the 
 fuU amount of such judgment, but in mak- 
 ing statutory redemption from a sale under 
 the judgment, he is only required to pay the 
 amount for which the property was bid in at 
 the sale, with interest, costs, etc. : Hays v. 
 Thode, ^8-51 ; Tuttle v. Dewey, 44^-306; Iowa 
 County V. Beeson, 55-362. 
 
 434. In redeeming from an execution cred- 
 itor who has bought in the 'property at the 
 sale, the debtor need only pay the amount 
 bid by such creditor, and is not required to 
 pay, in addition thereto, any portion of the 
 judgment remaining unsatisfied by the sale. 
 Such balance is not a hen upon the property 
 sold. (Overruling Crosby v. Elkader Lodge, 
 16-399): Clayton v. Ellis, 50-590. 
 
EXECUTIONS, V. 
 
 Y81 
 
 Redemption, 
 
 435. There is no distinction between the 
 debtor and tho creditor as to the matter of 
 making redemption : Ihid. 
 , 436. Where a junior creditor attempts to 
 redeem from a senior creditor who has taken 
 an assignment of a certificate of purchase, 
 he must pay to such senior creditor the 
 amount of purchase money and also the 
 amount of the senior creditor's hen : Wilson 
 V. Conhlin, 23-452. 
 
 437. Where a mortgage was foreclosed for 
 one instalment of- the debt secured thereby, 
 and the decree directed that the entire 
 property covered should be .sold and any 
 balance realized in excess of the instalment 
 due should be applied to the payment of in- 
 stalments not yet due, and the property was 
 bid in by the mortgagee for the entire 
 amount secured by the mortgage, held, that 
 the mortgagor could not redeem from such 
 sale upon payment simply of the amount of 
 the instalment already due with interest 
 and costs, but only upon payment of the 
 entire amount for which the property was 
 bid in by the purchaser, although such pur- 
 chaser had not paid to the clerk any sum 
 except the costs : Williams v. Dickerson, 66- 
 105. 
 
 438. A judgment creditor whose lien is 
 subsequent to an unrecorded deed cannot de- 
 feat the priority of the deed by first redeem- 
 ing from a prior judgment creditor. Tho 
 gi-antee in the deed may redeem from the 
 subsequent judgment creditor in such case 
 by paying the amount due the prior judg- 
 ment creditor : Fords v. Vance, 17-94. 
 
 439. Where a party redeems from a sale 
 under a judgment which by mistake is for 
 too small an amount, he is under no obliga- 
 tion to tender more than the amount for 
 which the property was bid in with interest 
 and costs : Dap v. Cole, 44r-452. 
 
 440. Where the holder of the first two of 
 three mortgages on the same property fore- 
 closed the first and bid in the property at 
 the sale thereunder, and thereaftei- the holder 
 of the third foreclosed and bid in the prop- 
 erty at his sale and then redeemed from the 
 sale under the first after nine months from 
 the date of such sale, held, that such re- 
 demption was made under the right of the 
 mortgagor and not as junior creditor, and 
 that the redemptioner did not thereby ac- 
 
 quire priority over the second mortgage: 
 Dickerman v. Lust, 66-444. 
 
 441. A redemption of real property from 
 sale under execution, made within the proper 
 time by a sub-agent under color of authority, 
 whose act was subsequently ratified by the 
 principal^ held sufficient as against the pur- 
 chaser under the sale: Teucherv. Hiatt, 23- 
 527. 
 
 442. For >vhat aiuount i-cdceming cred- 
 itor takes property: Omission by a creditor 
 who has made redemption to make the entry 
 in the sale-book as required by statute (Code, 
 g 3115), in case he is not willing to credit the 
 execution defendant with the full amount of 
 the claim under which such redemption is 
 made, will not prejudice the rights of other 
 creditors to redeem nor defeat the right of 
 the debtor to demand the extinguishment of 
 all the claims of the creditor so failing to 
 make such entry: Goodev. Cummings, 35-67. 
 
 443. Such provisions apply only to re- 
 demptions made after the expii-ation of nine 
 months from the date of sale. Previous to 
 that time, no entry in the sale-book is re- 
 quhed : Ibid. 
 
 444. Under the Code, the absolute right of 
 redemption on the part of creditors is termi- 
 nated at the end of nine months from the date 
 of the sale, and it is for the creditor last re- 
 deeming within the nine months to determine 
 whether the right of redemption shall be 
 again opened to the other creditors. If he is 
 willing to have his lien and claim wholly ex- 
 tinguished, he is entitled to hold the property 
 at that price, and no further redemption can 
 be made by the creditors. If he is not willing 
 to take the property in full satisfaction, then 
 he must, within ten days, enter on the sale- 
 book the utmost amount he is willing to 
 credit on his claim, and by so doing he con- 
 fers upon the other creditors the right to re- 
 deem under the provisions of Code, § 3116: 
 Woonsocket Institution v. Goulden, 28 Fed. 
 Rep., 900. 
 
 445. The statute does not prescribe the 
 statement to be entered by a junior creditor 
 redeeming from a judgment sale as to the 
 amount which he is willing to allow on his 
 claim, and if it indicates with sufficient cer- 
 tainty such amount it is sufficient : Craig v. 
 Alcorn, 46-560. 
 
 446. Failure of the clerk to enter in the 
 
782 
 
 EXECUTIONS, V— FENCES. 
 
 Redemption. — What deemed legal fence. 
 
 sale-book the amount which a redeeming 
 creditor is willing to allow on his claim, 
 when a statement thereof is furnished by the 
 creditor in due time, the statement being in 
 fact known to the parties affected thereby 
 within the ten days given by statute for 
 making the entiy, will not operate to defeat 
 the effect of such entry, the object of the re- 
 quirement being to secure to the debtor 
 notice of the intention of the redemptioner ; 
 and actual notice will effect that purpose: 
 Ibid. 
 
 447. Kedemptioiis by jniiior and senior 
 lienholders from each other must be made 
 within the year allowed for redemption: 
 Phelps V. Finn, 45-447. 
 
 448. Payment to clerk: Where the party 
 making redemption pays, and the clerk in 
 good faith receives, a banker's check, or cur- 
 rency which is not legal tender, before the 
 expiration of the time for redemption, the 
 redemption will be complete, although in 
 case of the check the money is not realized 
 thereon by the clerk until after the time for 
 redemption has expired: Webb v. Watson, 
 18-537. 
 
 449. Payment to party: Whenever a pay- 
 ment to the clerk would be good, a payment 
 or tender to the party entitled to receive the 
 money will be equally valid. The provisions 
 of the Code of '51, allowing money to be 
 paid to the clerk, held to be for the benefit of 
 the holder, and that a payment to the execu- 
 tion plaintiff would be effectual : Armstrong 
 V. Pierson, 5-317. 
 
 EXECUTORS. 
 
 See Estates of Decedents. 
 
 EXEMPTIONS. 
 
 See Executions, II, d. 
 
 FALSE IMPKISONMENT. 
 
 1. Where one causes the arrest of another 
 without wan'ant, and without reasonable 
 cause to believe him guilty, the person ar- 
 rested being innocent, the one who causes 
 the arrest is liable in damages without proof 
 of malice, but malice may be shown to en- 
 
 hance the damages : Allen v. Leonard, 28- 
 529. 
 
 3. If plaintiff was the party against whom 
 the information was filed and for whose ar- 
 rest a warrant was issued, although there 
 was a mistake in his name, he cannot recover 
 for false imprisonment under the authority 
 of the process, even if innocent. In such 
 case, his remedy must be for malicious prose- 
 cution or by other like action : Ibid. 
 
 3. Where an officer is justified in making 
 an arrest without a warrant, he may detain 
 the person arrested in custody for a reason- 
 able time, and will not be liable in damages 
 for such detention : Hutchinson v. Sangster. 
 4G. Gr., 340. 
 
 4. An order issued to a military oiBcer au- 
 thorizing an arrest, although it may be so 
 far without authority as to be no justifica- 
 tion, may, nevertheless, be proper as evidence 
 to mitigate the damages to be recovered in 
 an action for such aiTest : Carpenter v. Par- 
 ker, 33-450. 
 
 FEES. 
 See Officers, VI. 
 
 FENCES. 
 
 As to when domestic animals may be 
 allowed to run at large, see Animals. 
 
 As to obUgation of railroads to fence their 
 right of way, see Railroads, IV, d. 
 
 When deemed pai-t of realty, see Fix- 
 tures, g§ 3-5. 
 
 1. What deemed legal fence: Under the 
 statutory provision (Code, § 1507), a bluff, 
 a hedge, a trench, a wall, a trestle, or the 
 like, may be held to be in fact a lawful fence : 
 Hilliard v. Chicago <fc N. W. R. Co., 87-442. 
 
 2. Former statute as to height of fence 
 construed: Phillips v. Oystee, 32-257. 
 
 3. The statutory provision as to hedges 
 (16 G. A., ch. 106) is not so construed as to 
 defeat recovery by a party on the ground 
 that on some point on his line a hedge could 
 not be gi-own for a short distance : MeKeever 
 V. Jenks, 59-300. 
 
 4. Obligation to fence: There is no obliga- 
 tion as to the public resting upon the owners 
 of growing crops to fence them ; and in an 
 action by the owner pf an o:^. which had 
 
FENCES. 
 
 T83 
 
 Obligation to fence. — Partition. 
 
 broken through an insufficient fence into a 
 cornfield, and died from the effects of eating 
 the corn, brought against the owner of the 
 field for damages, held, that defendant was 
 not liable : Herold v. Meyers, 30-378. 
 
 5. Where stock is prohibited from running 
 at large, the owner is not to be deemed 
 chargeable with negligence in allowing his 
 animals to run at large upon uninclosed land 
 of another ; and the owner of unfenced prem- 
 ises who makes an excavation thereon i^dja- 
 cent to the highway, and in a place which he 
 knows to be frequented by stock running at 
 large, will be liable for injuries occurring to 
 animals from such excavation : Haughey v. 
 Hart, 62-96. 
 
 6. Where plaintiff, claiming to own cer- 
 tain real estate, sought to recover damages 
 from defendant for maliciously, wrongfully 
 and unlawfullj' breaking down and destroy- 
 ing the fence and turning his cattle upon 
 s.uch land without plaintiff's consent, held, 
 that an instruction, in substance, that, if the 
 land was the property of plaintiff, as to which 
 the jury were directed to inquire, and if 
 they found the land was fenced and the de- 
 fendant broke down the fence and thereby 
 allowed the cattle to go upon the land, or if 
 the land was fenced and the fence was broken 
 down without defendant's fault, and he 
 drove his cattle upon the land, the plaintiff 
 would be entitled to recover, was not erro- 
 neous : Erbes v. Wehnieyer, 69-85. 
 
 7. Partition fences: By statute (Code, 
 § 1489) the respective owners of lands in- 
 closed with fences are required to keei) up and 
 maintain fences between their own and the 
 next adjoining inclosure as long as they im- 
 prove them in common : Schnare v. Gehman, 
 9-283. 
 
 8. If parties use a fence as a partition fence 
 between their farms, it is wholly immatei-ial 
 whether it is on the exact boundary line, so 
 far as the obligation to maintain the fence or 
 contribute to its construction is concerned : 
 Card V. Dale, 67-552. 
 
 9. One of the adjacent proprietoi-s cannot 
 evade the law or defeat it by purposely mak- 
 ing his fence a few feet from instead of upon 
 the dividing line: Talbot v. Blacklege, 22- 
 572. 
 
 10. Where defendant in inclosing his 
 premises left a private way entirely on his 
 
 own land, next to his neighbor's, held, that 
 he could not be required, in addition to fenc- 
 ing such right of way over the remainder of 
 his own land, to construct his share of the 
 partition fence between such right of way 
 and his neighbor's land: Bland v. Hixen- 
 baugh, 39-532. 
 
 11. A party who fences across a, public 
 alley in a village, separating his lot from his 
 neighbor's, so as to make use of his neigh- 
 bor's fence, does not thereby make such 
 fence a partition fence nor render himself 
 liable to pay for a share thereof : Anderson 
 V. Cox, 54-578. 
 
 12. The question whether the use of land, 
 or agreement between the parties, was such 
 as to require tight partition fences in a par- 
 ticular case, having been properly submitted 
 to the jury, held, that a verdict allowing 
 plaintiff to recover twice the value of such 
 fence which defendant was required to build 
 by the decision of the township trustees as 
 fence viewers, would be sustained : Huber v. 
 Wilkinson, 46-458. 
 
 13. Premises in common: Adjoining own- 
 ers cannot be considered as occupying their 
 premises in severalty, within the meaning of 
 the statute, unless there be a partition fence 
 of such character that the proprietor is able 
 to keep his stock upon his own premises. 
 Therefore, held, that a hedge which had not 
 attained sufficient perfection to prevent stock 
 from passing through it, did not constitute a 
 pai'tition fence, and the owners were there- 
 fore holding in common within the meaning 
 of the statute : Miner v. Bennett, 45-635. 
 
 14. One who merely incloses his premises 
 adjoining another close and does not own any 
 part of the division fence may at pleasure 
 and without the aid of statute throw his in- 
 closure open to common : Ibid. 
 
 15. Where one of the owners of adjacent 
 property inclosed in common intentionally 
 puts his animals into the ooirunon inclosure, 
 by which the property of the other owner is 
 injured, he is liable therefor, and it is im- 
 material whether the fence inclosing the 
 common inclosure was a lawful fence or 
 not : Broadwell v. Wilcox, 22-568. 
 
 16. One who purposely turns his cattle 
 upon his land, from which they go upon the 
 land of another, inclosed in common, and do 
 damage, is liable, though there was no inten- 
 
784: 
 
 FENCES. 
 
 Where stock restrained. — Fence viewers. 
 
 tion that they should go upon his neighbor's 
 land. And where the land trespassed upon 
 is inclosed in common with that of the owner 
 of the cattle, without partition fence, by 
 agreement, the liabiUty is the same as 
 though their lands were separated by a law- 
 ful partition fence. The agreement stands 
 as and for the fence: Wintersv. Jacobs, 29-115. 
 
 17. Wheve stock restrained: The provis- 
 ions with reference to partition fences are 
 applicable (by statute, Code, § 1508) to coun- 
 ties or townships in which stock is, by legal 
 regulation, restrained from running at large : 
 Duffees v. Judd, 48-256. 
 
 18. In counties where a herd law is in 
 force, a party desiring to use his ground for 
 purposes not requiring a fence in such 
 county, for instance, for raising crops alone, 
 caniiot be compelled to contribute to the 
 erection of a partition fence between his land 
 and that of an owner who desires to use his 
 premises fo.r purposes requiring fencing, as, 
 for iiistance, for the raising of stock : Syas v. 
 Peck, 58-256. 
 
 19. Land is to be deemed as not used in 
 common where the use is such that means 
 must be taken to preser-ze the crops. Where 
 there is no regulation prohibiting stock from 
 running at large, the party desiring to use 
 his land for the raising of crops which must 
 be protected from such stock must contrib- 
 ute to a partition fence. Where it did not 
 appear that stock was not prohibited from 
 running at large, held, that such fact would 
 not be presumed for the purpose of establish- 
 ing error in the judgment below : Hewit v. 
 Jewell, 59-37. 
 
 20. Proceedings of fence viewers: The 
 duty of maintaining partition fences as pro- 
 vided by statute being one created solely by 
 statute, the method prescribed there for en- 
 forcing such duty must be followed. A 
 party cannot proceed by action in coui't in- 
 stead of -by application to the fence viewers : 
 Lease v. Vance, 28-509. 
 
 31. It is not necessary that the complaint 
 to the fence viewers be in writing and made 
 a matter of record : Tiibhs v. Ogden, 46-134. 
 
 22. The action of the fence viewers is con- 
 clusive where they have jurisdiction ; but 
 they cannot conclude a party by determining 
 that to be a partition fence which, in fact, 
 is not : Bills v. Belknap, 38-225. 
 
 23. The adjudication by the trustees as to 
 the sufi&oiency of the fence should be by 
 them sitting as a board, and as a result of 
 personal Inspection, but the inspection need 
 not be made by them in a body. A record 
 of the adjudication should be made by the 
 clerk, but it is not necessary that such adju- 
 dication be reduced to wi-iting and certified 
 by them. The certificate of the viewers as 
 to the value of the fence should be filed with 
 the clerk, and will then be sufficient evidence 
 of complainant's rights and notice to the ad- 
 verse party : Tubbs v. Ogden, 46-134. 
 
 24. There is no appeal from the action of 
 fence viewers : McKeever v. Jenks, 59-350. 
 
 25. The decision of fence viewers upon 
 questions within their jurisdiction ig conclu- 
 sive, and the fact that the statute as to these 
 matters denies to the parties a trial in court, 
 either by an appeal or ' otherwise, does not 
 render it unconstitutional : Ibid. 
 
 26. Neither the notice, required by statute 
 to be given of the proceedings of the fence 
 viewers, nor the finding, assigning to each 
 his share of the partition fence, need be in 
 writing, though It would be the better practice 
 to put them in that form : Talbot v. Black- 
 lege, 23-572; Gantzv. Clark, 31-254. 
 
 27. The decision of the fence viewers is 
 not conclusive as to the true division line, 
 and in an action by one land-owner against 
 an adjoining owner to recover the proportion 
 of the cost of building a partition fence, in 
 accordance with the direction of the fence 
 viewers, the defendant may show, as a de- 
 fense, that the fence was not erected upon 
 the true line: Peschongs v. Mueller, 50-337. 
 
 28. The decision of the fence viewers re- 
 quiring defendant to buUd a portion of the 
 fence on such line is not within their juris- 
 diction, and the defendant may recover for 
 the cutting down of trees and loss of the use 
 of well, etc. : Ibid. 
 
 29. Fence viewers have jurisdiction only 
 when a controversy arises between the re- 
 spective owners of land about the partition 
 fences: Anderson v. Cox, 54-578. 
 
 30. Where the parties have agi-eed to 
 maintain a certain kind of fence, the trustees 
 may determine whether such agreement has 
 been performed and decide as to time and 
 manner of performance: Huber v. Wilkin- 
 son, 46-458. 
 
FENCES — FIXTURES. 
 
 785 
 
 Fence viewers. — Fixtures defined. 
 
 31. Tlie evidence of fence viewers is com- 
 petent in regard to a matter upon v^liicli 
 tliey are authorized to form an opinion: 
 PhilUjps V. Oystee, 32-257. 
 
 32. Ttierefore, held, tliat a party at whose 
 house the viewers met and who was verbally 
 notified by tliem of maiing a division, and on 
 being asked whether he had received notice, 
 admitted that he had, could not object to 
 want of a written notice. Also held, that 
 where parties were verbally notified and 
 knew of the action and decision of the fence 
 viewers, and such decision was reduced to 
 writing and duly recorded, objection as to 
 want of notice thereof could not be consid- 
 ered : Talbot v. Blacklege, 22-573. 
 
 33. Under a former statutory provision, 
 Tield, that notice of a meeting of the fence 
 viewers to determine the value of a fence 
 erected in pursuance of their direction, not 
 being expressly required, was not necessary : 
 Ibid. 
 
 34. An assignment made by the fence 
 viewers as to the amount to be built by each 
 is binding upon the parties without being re- 
 corded: Oantzv. Clark, 31-254. 
 
 3.5. The question of the sufficiency of a 
 fence, when it arises in an action, is to be de- 
 termined like any other fact in the case. It 
 is not necessary that the action of viewers 
 thereon be had: Hilliard v. Chicago & N. 
 W. M. Co., 37-442. 
 
 3G. When exercising power granted to 
 them, the proceedings of fence viewers are to 
 be .considered by the court as to all matters 
 of form with at least the same tender and in- 
 dulgent consideration which is extended to 
 proceedings before a justice of the peace: 
 Talbot V. Blacklege, 22-573. 
 
 37. Unless due notice is given to the ad- 
 verse party of the meeting of the fence view- 
 ers to examine the fence, the subsequent 
 proceedings cannot constitute the basis of a 
 recovery against him: Lookhart v. Weasels, 
 46-81. 
 
 38. As to what is due and sufficient notice, 
 see Tubbs v. Ogden, 46-134. 
 
 39. Where a party, without availing him- 
 self of the provisions of .the statute as to 
 fence viewers, gave notice to an adjoining 
 land-owner to build one-half the fence be- 
 tween their lands, and such adjoining owner, 
 ia compUance with his demands, built his one- 
 
 VOL. 1—50 
 
 s 
 
 half the fence and afterwards built the re- 
 mainder of the fence, which should have 
 been built by the party giving the notice, 
 held, that the party thus building the fence 
 might recover, from the party serving the 
 notice, the value of one-half the fence 
 built : Schnare v. Oehman, 9-383. 
 
 40. The proceedings of the fence viewers 
 do not bar other proceedings which involve 
 division lines : Pesohongs v. Mueller, 50-237. 
 
 41. Agreements between parties (Code, 
 § 1506) as to determining title to lands, etc., 
 need not necessarily be in writing: Bills v. 
 Belknap, 38-225. 
 
 FERRIES. 
 
 See Waters, m. 
 
 FIXTURES. 
 
 1. Defined: Fixtures are personal chattels 
 annexed to the freehold, and which may be 
 severed and removed against the will of the 
 owner of the freehold by the party who has 
 annexed them : Pickerell v. Carson, 8-544. 
 
 2. The character of the property, as to 
 whether it is a fixture or not, must very often 
 be determined from a knowledge of the pur- 
 pose designed in its erection or conuection ; 
 therefore, held, that a bell belonging to a 
 church, which Had been reserved upon the 
 sale and removal of the church building and 
 placed in a frame on the church lot and used 
 for its proper purpose, was a portion of the 
 realty and exempt from execution, though 
 the posts of the frame were not let into the 
 ground. Its position and use would unmis- 
 takably indicate the intention of the society 
 to affix it to the realty and render it a perma- 
 nent accession to the land: Congregational 
 Society v. Fleming, 11-533. 
 
 3. Fences: Rails not laid into a fence, but 
 piled upon the land, are not a part of the 
 realty: Bobertson v. Phillips, 3 G. Gr., 230. 
 
 4. But rails laid in a fence are a part of the 
 freehold and belong to the owner of the soil: 
 Boon V. Orr, 4 G. Gr., 304. 
 
 5. A fence which forms a close or part of 
 an inclosed place on the premises is to be 
 regarded as a part of the freehold. It makes 
 no difference how the fence is constructed or 
 of what material. If of rails, it may or may 
 
T86 
 
 FIXTURES. 
 
 MacMnery. — Trade fixtures; removal. — Severance. 
 
 not have stakes fastened in the ground: 
 SmWi V. Carroll, 4 G. Gr., 146. 
 
 G. Machiuery: Fixtures are a species of 
 property constituting the dividing line be- 
 tween real and personal property. To decide 
 on vsrhich side of the line certain property 
 belongs is often a vexatious question. A 
 steam-engine or v?ater- wheel constituting the 
 propelling power of a mill or manufactory 
 is uniformly held to be a fixture and to pass 
 with the realty, and the same may be said of 
 the stones or burs. in a grist-mill, cog-wheels, 
 gearing or shafting in a mill, manufactory, 
 etc., they being parts of the motive power; 
 but held, that looms, spinning jacks, etc., in 
 a woolen factory, being propelled by the 
 engine which furnished the motive power 
 for such factory, were also parts of the real 
 estate: Ottumwa Woolen Mill Co. v. Haw- 
 ley, 44-57. 
 
 7. The controlling consideration in deter- 
 mining whether the machinery in a mill 
 or manufactory is part of the real estate is 
 whether the intention of the party making 
 annexation was to make a permanent acces- 
 sion to the freehold. Physical attachment 
 is a very uncertain and unsatisfactory crite- 
 rion, the only value to be attached to it being 
 to determine the intention of the owner in 
 making annexation. If it be so fixed that 
 its removal would materially injure the 
 building, this is evidence of the intention to 
 make it a permanent accession : Ibid. 
 
 8. Where a smutter was hired by its owner 
 to the owner of a flouring-miU and by the 
 latter fixed in place and operated as a part 
 of the machinery of the miU, although it 
 could be removed -without material injury to 
 the mill, held, that as to the purchaser of the 
 mill at judicial sale, without knowledge of 
 
 '■'!***the facts, it passed as a part of the realty, 
 although as between the immediate parties 
 it remained personalty: Stillman v. Flen- 
 niken, 58-450. 
 
 9. A corn elevator built by permission of a 
 railroad company upon its right of way, and 
 operated by a shaft running over a vacant 
 lot and connecting it with a mill owned by 
 the person building the elevator, held not to 
 be a fixture appurtenant to the miU: Walton 
 V. Wray, 54-531. 
 
 10. Trade lixtures ; removal: Trade fix- 
 tures must be removed by the tenant upon 
 
 or prior to the expiration of his term and be- 
 fore he has surrendered possession. He can- 
 not re-enter for the purpose of effecting such 
 removal : Dostal v. McCaddon, 35-318. 
 
 11. Where the vendee under a sale of 
 premises, made after surrender of the prem- 
 ises by a tenant, had no actual notice of 
 the existence of fixtui-es annexed by him, 
 held, that the vendee was entitled to such 
 fixtures although without his knowledge the 
 person in possession of the property at the 
 time of his purchase was using such fixtures 
 under permission of the former tenant who 
 erected them: Ibid. 
 
 12. When buildings and other trade fix- 
 tures are erected upon real estate, upon the 
 faith of an implied license from the owner, 
 they will not be treated in equity as a part 
 of the realty in the hands of a subsequent 
 purchaser, who acquired his title with full 
 knowledge of such license: Wilgiis v. Oet- 
 tings, 21-177. 
 
 13. Although it is a general principle of 
 law that a building, permanently annexed to 
 the freehold, becomes a part of it, yet, if it is 
 erected by the builder with his own money 
 for his own exclusive use, as disconnected 
 from the use of the land, and with an agi'ee- 
 ment to that effect between the owner of the 
 land and the builder, it will, as between 
 the parties, be considered as personal prop- 
 erty. Especially is this true when the very 
 contract by which the building was erected 
 contemplates its removal: District T'p v. 
 Moorehead, 48-466. 
 
 14. Severance by chattel mortgage: 
 Whether fixtures which are a part of the 
 realty as between the vendor and vendee 
 are, in law, severed and made personalty by 
 the execution of a chattel mortgage thereon, 
 quaere. But the chattel mortgage, when 
 recorded and indexed as such, does not con- 
 stitute constructive notice to a subsequent 
 purchaser of the realty : Bringholff v. Murir 
 zenmaier, 20-513. 
 
 15. Where a saw-mill was erected upon 
 leased gTOund, the boiler being encased in 
 brick and the shed covering the mill restmg 
 on blocks, it bemg possible to remove both 
 shed and mill without injury to the realty; 
 and the mill was then moiigaged as personal 
 property, held, that as between the mort- 
 gagor and was grantees and the mortgagee 
 
FIXTURES — FRAUD. 
 
 787 
 
 Niirsery trees. — What constitutes fraud. 
 
 and his assignees, the mill must be regarded 
 as personal property, and that the fact that 
 the owner of the land became owner of the 
 mill after the execution of the mortgage 
 thereon would not merge the ownership of 
 the mill with that of the realty so as to de- 
 feat the chattel mortgage : Denham v. Sankey, 
 38-369. 
 
 16. Nursery trees planted by the owner of 
 real estate become a part of the realty, and 
 pass as such to the purchaser at the foreclos- 
 ure of a mortgage executed by the owner, 
 although the trees were planted after the ex- 
 ecution of the mortgage : Price v. Brayton, 
 19-309. 
 
 17. A mortgagee of real property on which 
 nursery trees are standing, who purchases 
 such property at foreclosure sale, is entitled 
 to the trees as against a chattel mortgage 
 thereon given subsequently to the execution 
 of the real property mortgage but recorded 
 before the foreclosure sale : Adams v. Beadle, 
 47-439. 
 
 IS. As betiveen heir and executor, the 
 rule of fixtures obtains with the greatest 
 rigor in favor of the inheritance and against 
 the right to consider as a personal chattel 
 anything which has been affixed to the free- 
 hold ; therefoi-e held, in a particular case, that 
 a saw-mill erected by one who at the time 
 claimed to be the owner of the land, and 
 built in a permanent manner, partly in the 
 bed of the river and partly in the bank, was 
 a part of the realty, so that an action for the 
 conversion thereof could not be brought by 
 the administrator: Kinsellv. Billings, 35-154. 
 
 FORCIBLE ENTRY AN» DETAINER. 
 
 See Justices of the Peace, VII. 
 
 FORMER ADJUDICATION. 
 
 See Judgments, II, d. 
 
 FRAUD. 
 
 Afl to Fraudulent Conveyances, see that 
 title. 
 
 As to fraud in particular cases, see refer- 
 ences in Index. 
 
 1. What constitutes: Fraud Includes any 
 act, omission, or concealment, which involves 
 
 a breach of legal or equitable duty, trust, or 
 confidence, and is injurious to another, and 
 by which undue or unconscientious advantage 
 is taken of another: Lumpkin v. Snook, G3- 
 515. 
 
 2. "Where there is no concealment or mis- 
 representation as to any existing fact, but 
 parties contract with full knowledge of every 
 fact pertaining to the subject of the agree- 
 ment, the contract cannot be considered 
 fraudulent: Ibid. 
 
 Further as to what is sufficient fraud to 
 entitle a party to relief in equity, see Equity, 
 n, b. 
 
 As to what is sufficient fraud to warrant 
 rescission of contract, see Contracts, XII, a. 
 
 3. Fraudulent represeutations: Where' 
 pai-ties through their agents fraudulently 
 represented that no actions to enforce liens 
 held by them had been commenced, and by 
 means of such representations secured their 
 judgments on such liens without notice to or 
 defense by the purchaser of the property to 
 whom such representations were made, and 
 had executions levied so as to defeat the right 
 of election of such party to have the prop- 
 erty sold subject to the right of redemption, 
 lield, that these facts constituted fraud : 
 Gregory v. Perkins, 40-82. 
 
 4. Where a surety, before signing a note 
 for money to be advanced, inquired of payee 
 whether the principals were indebted to him 
 at that time, and was told that they were not 
 so indebted, which statement was false, held, 
 that such false representation would avoid 
 the note, and also a confession of judgment 
 entered into thereon, before the surety was 
 aware of the fraud: Melick v. First Nut. 
 Bank, 53-94. 
 
 5. In order to render a person liable in 
 damages for false representations, it must 
 appear that they were contrary to the fact 
 and that the party making them knew them 
 to be contrary to the fact. It is not sufficient 
 to show that they were made without reason 
 to believe them to be true. So held with re- 
 gard to representations as to responsibility of 
 party inquu-ed about: Aven^ v. Chapman, 
 63-144. 
 
 6. False representations as to the solvency 
 or pecuniary condition of another, to be 
 actionable as fraudulent, must at the time 
 have been known to be false by the party 
 
788 
 
 FRAUD. 
 
 Fraudulent representations. — False promises. 
 
 making them, or he must have assumed or 
 intended to convey the impression that he 
 had actual knowledge of their truth when 
 he had not: McKown v. Furgason, 47-636. 
 
 7. While it is not invariably true that 
 false representations, made as an inducement 
 to a contract, will not constitute fraud if the 
 other party had an opportunity to detect the 
 falsehood, yet, in general, a party cannot 
 make the mere opinion of another a ground 
 of fraud, especially where this opinion re- 
 lates to the value of an article, or to what 
 will happen in the future, in relation to 
 which each party has equal opportunities of 
 judging for himself: Bondurant v. Craw- 
 ford, 22-40. 
 
 8. Fraudulent representations made to a 
 third party with intent that they be com- 
 municated to the other party for the purpose 
 of influencing his action, and which are so 
 communicated, may be shown : Davidson v. 
 Vorse, 52-384. 
 
 9. Before a party can recover for false 
 representations he must show that by such 
 representations he was induced to act to his 
 prejudice : Oee v. Moss, 68-318. 
 
 10. The question whether in such a case 
 the party acted with reasonable prudence 
 and care in accepting and acting upon the 
 representations is one of fact for the jury. It 
 cannot be said, as a matter of law, that any 
 degree of intimacy existing between the 
 party to whom the representations are made, 
 and the one making them, would or would 
 not justify their acceptance. In a particular 
 case, held, that repi-esentations by an officer 
 and stockholder of a corporation, with refer- 
 ence to the value of its stock and the condition 
 of its affairs, was false and fraudulent, and 
 rendered the person making such representar 
 tions liable in damages to a person buying 
 stock upon the strength of his representa- 
 tions: Ihid. 
 
 11. Certain false representations made as 
 an inducement to the execution of a note, 
 held sufficient to avoid the note for fraud: 
 Averill v. Boyles, 52-672. 
 
 Further as to false representations, see 
 Equity, §§ 103-120 ; Vendoes, II; Sales, III. 
 
 12. False promises: A mere failure to 
 perform an agreement never constitutes 
 fraud : Van Vechten v. Smith, 59-178. 
 
 13. Fraud in general consists of misrep- 
 
 resentation of matters of fact, not in a fail- 
 ure to keep a promise to do or to omit to do 
 something. Therefore, held, that the alle- 
 gation that an administrator had falsely pre- 
 tended that he would submit to the allowance 
 of a claim, and proposed to secure the claim- 
 ant the conveyance of land belonging to the 
 estate in satisfaction therefor, was not suffi- 
 cient to show personal liability on his part 
 for fraud in failing to settle his claim : Haz- 
 lett V. Burge, 22-535. 
 
 14. Relation of parties: It cannot be im- 
 puted to a child as want of vigilance that he 
 accepts as true, without question or further 
 inquiry, declarations of a parent with whom 
 he has always resided, whom he has been 
 accustomed to obey, and in whose word he has 
 habitually confided : Rider v. Kelso, 53-367. 
 
 15. A party in pari delicto cannot make 
 his illegal act a basis of recovery; but where 
 the stronger mind takes possesion of the 
 weaker and by persuasion and influence pro- 
 cures an unlawful act, this rule ceases to be 
 applicable : Davidson v. Carter, 55-117. 
 
 Further as to confidential relations, see 
 Equity, §§ 123-127. 
 
 16. Without injury: Where an act, claimed 
 to be fraudulent, had resulted only in pro- 
 curing the performance by the opposite party 
 of what he would, without such alleged 
 fraud, have been legally bound to do, held, 
 that he was not injured thereby, and was 
 not entitled to relief : Pheteplace v. Eastman, 
 26-446. 
 
 17. Waiver: The giving of a note for a 
 balance due on a sale wiU constitute ^i?)ut 
 faoie a waiver of fraud in the sale : Moffitt v. 
 Cressler, 8-123. 
 
 18. Pleadings: Where a party seeking to 
 enforce a vendor's lien testifies that such hen 
 has« not been waived, he cannot recover on 
 the ground that a waiver was obtained by 
 false representations: Gnash v. George, 58- 
 492. 
 
 19. In order to be entitled to rely upon 
 fraud, the party must specially plead it. It 
 cannot be made a gi-ound of defense by in- 
 structions without having been pleaded : Boot 
 v.Schaffner, '69-215. 
 
 That fraud must be pleaded, see Plead- 
 ings, §§ 63-78. 
 
 20. Effect: Fraud vitiates all contracts, 
 and may therefore be shown by parol evi- 
 
FRAUD — FRAUDULENT CONVEYANCES, I. 
 
 789 
 
 Evidence. — What conveyances deemed fraudulent. 
 
 dence, although its effect wiU be to vary or 
 contradict a written instrument: Day v. 
 Lown, 51-364. 
 
 21. Where a certificate of pre-emption is 
 procured from a county by fraud, the county 
 may set up that fact in any proceeding in 
 which the certificate is brought in question : 
 Bixhy V. Adams Coimij/, 49-507. 
 
 22. Though an action for damages for 
 fraud in a sale would amount to an afiirm- 
 ance of the sale and could not be maintained 
 against a min&r, yet an action to recover the 
 property on the ground that there was no 
 sale by reason of the fraud might be main- 
 tained : Nolan v. Jones, 53-387. 
 
 23. Where the property, which was the 
 subject of a fraudulent sale, could not be 
 reached, held, that the proceeds thereof could 
 be applied in the same manner as though the 
 property was available : Davis v. Gibbon, 24- 
 257. 
 
 24. Evidence: Fraud will never be pre- 
 sumed but must be proved, as any other fact : 
 Cheuvete v. Mason, 4 G. Gr., 331 ; First Nat. 
 Bank v. Hurford, 29-579. 
 
 25. Fraud will not be presumed when the 
 facts upon which it is sought to predicate it 
 are consistent with honesty and good faith. 
 It must be affirmatively established by satis- 
 factory evidence: Hamilton v. Bishop, 22- 
 211 ; Schofield v. Blind, 33-175 ; Prichard v. 
 Hopkins, 52-120. 
 
 26. Where fraud is alleged in a motion to 
 set aside a judgment, it must be affirmatively 
 proven, and will not be presumed because a 
 motive is shown for fraud : Moore v. Parker, 
 25-355. 
 
 2 7. To warrant the setting aside of a judg- 
 ment in a collateral proceeding for fraud, the 
 evidence should clearly establish the fraud : 
 Hulverson v. Hitchinson, 39-316. 
 
 28. Fraud will not be deemed proven unless 
 the evidence is satisfactory : McClanahan v. 
 MeKinley, 52-222; Schofield v. Blind,m-I15. 
 
 29. But it is not error, in instructing the 
 jury, to omit the word "satisfactorily" and 
 merely instruct them that fraud must be 
 proven : Galpin v. Wilson, 40-90. 
 
 30. A preponderance of evidence is suf- 
 ficient to establish fraud vitiating a sale. It 
 is error in such a case to instruct the jury 
 that the presumption is that the transaction 
 is honest and fan- and the burden of proof is 
 
 upon defendant to overcome such presump- 
 tions by clear and satisfactory evidence. A 
 fair preponderance of evidence, sufficient to 
 satisfy the minds of the jury, is all that is 
 required : Biocby v. Carskaddon, 55-533. 
 
 31. A party seeking to show fraud must 
 sustain his allegations by a preponderance of 
 the evidence. If the case is left in equipoise, 
 the plaintiff must faU: Oaks v. Harrison, 
 24-179. 
 
 32. A court will not be justified in over- 
 turning a legal title upon the testimony of a 
 single witness, contradicted by the testimony 
 of another witness, even though the latter 
 be a party to the action : Ej)ps v. Dickerson, 
 35-301. 
 
 33. The fact that property is sold on credit, 
 for the purchase of which vendor is still in- 
 debted, and the knowledge of vendee of such 
 fact, will not raise a pi-esumption of fraud-; 
 but in case of such sale under unusual 
 circumstances, the circumstances may be 
 considered by the jury in determining the 
 question of fraud : Hughes v. Monty, 24-499. 
 
 34. Certain facts in a particular case, held, 
 admissible as tending to show fraud in a 
 sale : Wadsworth v. Walliker, 51-605. 
 
 35. Evidence in particular cases held in- 
 sufficient to establish fraud: Baldwin v. 
 Wheeler, 50-46; Munson v. Foss, 55-309; 
 McCoy V. Quigly, 55-315. 
 
 Further as to evidence of fraud, see Fraud- 
 ulent CONTETANCBS, IV. 
 
 FRAUDS, STATUTE OF. 
 See Statute op Feauds. 
 
 FRAUDULENT CONTETANCES. 
 
 I. What conveyances deemed fraudu- 
 lent; YOLUNTAEY CONVEYANCES. 
 II. Who MAY HAVE BELIEF AGAINST. 
 
 III. Mode op relief; pakties against 
 
 WHOM relief may BE GRANTED. 
 
 IV. Evidence; burden of proof. 
 
 I. What coNVEYAisiCEs deemed feaud- 
 
 ULENT ; VOLUNTAEY convey AifCES. 
 
 1. Intentional fraud; effect: If property 
 be conveyed with the design on part of the 
 vendor, participated in by the vendee, to 
 
790 
 
 FRAUDULENT CONVEYANCES, I. 
 
 What deemed ; voluntary. 
 
 defraud his creditors, the vendee's title will 
 not be protected, notwithstanding he pays a 
 sufficient consideration: Chapel v. Clapp, 
 89-191 ; Williamson v. Wachenheim, 58-277. 
 
 2. The assignee of a contract, who takes 
 the same for the purpose of enabling the as- 
 signor to hinder his creditors in reaching the 
 benefits of such contract, can take nothing 
 under it, not even what he has paid for labor 
 and materials expended in its execution: 
 Chapman v. Hansom, 44-377. 
 
 3. A pui'chase of property for the purpose 
 of aiding to hinder, delay and defraud credit- 
 ors is invalid, notwithstanding the fact that 
 sufficient consideration has been paid : Sweet 
 V. Wright, 57-510. 
 
 4. Where an action is brought against the 
 grantee in a fraudulent conveyance to have 
 it set aside, although he may be a creditor of 
 the grantor, yet his claim not being reduced 
 to judgment, he cannot come in with other 
 bona fide creditors for a distributive share 
 out of property conveyed. The conveyance 
 being thus founded in actual and positive 
 fraud, as being made under the influence of 
 corrupt motives, and with the intent to cheat 
 creditors, may be considered void ab initio, 
 and the grantee in the deed a. particejys crim- 
 inis. As the grantee can claim no right 
 from his fraudulent act, he stands in no bet- 
 ter position than any other creditor having 
 a simple debt against the fraudulent grantor, 
 and cannot come in for a ratable proportion 
 of the property : Wilson v. Horr, 15-489. 
 
 5. If the grantor's intent is in part to avoid 
 fines in a criminal prosecution, and also to 
 avoid the payment of a judgment which 
 may thereafter be obtained in a civU action, 
 the conveyance is wholly fraudulent. It 
 cannot be upheld in part and void in part : 
 Weir V. Day, 57-84. 
 
 6. A design to delay and hinder creditors, 
 as well as a design to defraud them, will 
 render a sale void if such design is partici- 
 pated in by the other party : Bixby v. Cars- 
 kaddon, 55-533. 
 
 V. A conveyance the making of which is 
 a criminal act under the statute prohibiting 
 fraudulent conveyances is void: Davenport 
 V. Cummings, 15-219. 
 
 8. In a particular case, held, that a convey- 
 ance was merely colorable, made and entered 
 into by the parties for the purpose of prevent- 
 
 ing the creditors of the grantor from seizing 
 the property on execution, although at the 
 time of the conveyance suit had not yet been 
 brought: Carder v. Williams, 40-583. 
 
 9. Facts in particular cases discussed, and 
 held to show that the conveyances involved 
 were intended to delay, hinder and defraud 
 creditors and were therefore void : Olenn v. 
 Glenn, 17-498 ; Brainard v. Van Kuran, 33- 
 261 ; Baldwin v. Tuttle, 23-66 ; Ryan v. Mullir 
 nix, 45-631; Whitcombv. Whitcomb, 53-715; 
 Searing v. Berry, 58-20 ; Deere v. Needles, 65- 
 101. 
 
 10. Evidence in a particular case held not 
 sufficient to show fraudulent intent : Draper 
 V. AndrenjLis, 49-637. 
 
 11. Secret reservation or trust: A secret 
 reservation between the vendor and vendee 
 of land, by which the vendor is to have the 
 right to use and enjoy such use, the enjoy- 
 ment constituting a part of the consideration, 
 will render the conveyance fraudulent, irre- 
 spective of the intention with which it was 
 executed, and even though the transfer be 
 for a valuable consideration: Maeomber v. 
 Peck, 39-351 ; Dean v. Skinner, 43-418. 
 
 12. Keservation of future support: A 
 conveyance given in whole or in part con- 
 sideration of future support to be furnished 
 by the grantee is fraudulent as to a creditor: 
 Graham v. Rooney, 42-567 ; Strong v. Law- 
 rence, 58-55. 
 
 13. Where the grantee, a relative of 
 grantor, paid an adequate consideration, lidd, 
 that the fact that he allowed grantor and his 
 wife to remain on the pi'operty and receive a 
 portion of the rents and profits was not suffi- 
 cient to show fraud, as grantee might make 
 whatever disposition he saw fit of the prop- 
 erty : Rusie v. Jameson, 63-53. 
 
 14. A conveyance in trust for support of 
 grantor's family will be uplield as upon a 
 sufficient consideration: Riddle v. Cutter, 
 49-547. 
 
 15. Fraudulent intent of grantee: A 
 fraudulent purpose on the part of the grantor 
 aloue is not sufficient to avoid the convey- 
 ance ; a like intention must be traced to the 
 grantee, and, unless sjiown, the conveyance 
 will be upheld: Fifield v. Gaston, 12-218. 
 
 16. Where a conveyance is not voluntary, 
 but is supported by a sufficient consideration, 
 a fraudulent intent on the jpart of the grantor 
 
PRAUDULENT CONVEYANCES, I. 
 
 791 
 
 What deemed ; voluntary. 
 
 and of the grantee must be shown to avoid 
 it: Dmmmond v. Couse, 39-443. 
 
 17. Under facts of a particular case, held, 
 that it was suiSciently shown that the con- 
 veyance w?is without consideration and made 
 for the purpose, shared by both parties, of de- 
 feating grantor's creditors : McDonald v. Far- 
 rell, 60-335. 
 
 18. Grantee's knowledge of fraudulent 
 intent: To warrant the setting aside of a 
 conveyance for fraud against a creditor, 
 where there is a consideration, the creditor 
 must show not only fraud of the grantor, but 
 also participation therein on the part of the 
 grantee, so far at least as to have knowledge 
 of grantor's fraudulent intent, or of facts 
 -and ohcumstances such as ought to put the 
 grantee upon inquiry : Steele v. Ward, 35-535 ; 
 Kellogg v. Aherin, 48-399 ; Preston v. Turner, 
 36-671. 
 
 19. To avoid a sale on the ground that it 
 was fraudulent for the purpose of defeating 
 ■creditors, it must be shown that there wa^ 
 fraud on part of the grantor, and that the 
 grantee had knowledge of the fraudulent in- 
 tent, or had notice of such facts as would have 
 put a man of ordinary prudence upon in- 
 quiry which would have led to knowledge 
 of the fraudulent purpose ; but it is not essen- 
 tial to establish a fraudulent purpose on the 
 part of the grantee ; Jones v. Hetherington, 
 45-681; Williamson v. Wachenheim, 58-377; 
 Spaulding v. Adams, 63^37. 
 
 20. Where a purchaser of property is not a 
 creditor, but a mere volunteer, and the seller 
 intends by the sale to hinder, delay and de- 
 fraud his creditors, it is not necessary that it 
 be shown that the purchaser bought with a 
 fraudulent intent. It is enough if it be 
 shown that he had knowledge of such facts 
 as would charge him with notice of the fraud- 
 ulent intent of the seller : Lyons v. Hamilton, 
 '69-47. 
 
 21. Mere knowledge by the vendee of the 
 insolvency of the vendor, without further 
 knowledge that the sale is for the purpose of 
 defrauding creditors, will not make such sale 
 fraudulent, although the object of the vendor 
 was really to defraud creditors : Hughes v. 
 Monty, 34-499. 
 
 22. The fact that a person loaning money 
 by mortgage had reason to suppose that the 
 borrower was financially embarrassed, and 
 
 knew of the pendency of an action against 
 him and an intent to attach his land there- 
 under, held not sufficient to affect the mort- 
 gagee with notice of fraud : Collier v. French, 
 64-577. 
 
 23. Evidence in particular cases held suffi- 
 cient to affect the grantee with knowledge 
 of the fraud of the grantor : Smith v. Smith, 
 82-516; Milner v. Davis, 65-365; Platner v. 
 Platner, 66-378. 
 
 24. Preference of creditors not necessa- 
 rily fraud alent: A mortgage to a bona fide 
 creditor will not be invalid for the single 
 reason that it operates to postpone and delay 
 other creditors : Adler v. Claflin, 17-89. 
 
 2.J. One creditor may, lawfully, by the ex- 
 ercise of superior diligence, obtain payment 
 or security from his debtor, and in so doing 
 absorb or take all the debtor has, and it is im- 
 material that there are other creditors who 
 get nothing. There must be, however, on 
 the creditor's part, no intent to wrong or de- 
 fraud other creditors, but a bona fide intent 
 to protect himself: Crawford v. Nolan, 
 70 . 
 
 20. The transfer by an insolvent debtor of 
 all his property in the actual discharge of a 
 pre-existing debt, though the transferee has 
 knowledge of other creditors not paid, will 
 not render the transaction fraudulent per se. 
 At common law the debtor may prefer any 
 one of his creditors by payment of his debt, 
 or by conveying to him property in trust 
 for the purpose of its payment : Johnson v. 
 McGrew, 11-151. 
 
 27. A creditor has the right to secure his 
 debt in good faith, even if he knows that his 
 debtor has other creditors and that the effect 
 will be to prevent other creditors from col- 
 lecting their claims : Carson v. Byers, 67-606. 
 
 28. A mortgage executed by a debtor to 
 one or more of his creditors, having the effect 
 to hinder and delay others who are not se- 
 cured, is not necessarily fraudulent. It will 
 be fraudulent only when executed with a 
 fraudulent intent on the part of the mort- 
 gagor, and when such intent is participated 
 in by the mortgagee. The fact that the mort- 
 gagee accepts for his own benefit a mortgage 
 which he knows will have the effect of hin- 
 dering and delaying the collection ui the 
 claims of other creditors will not render such 
 mortgage fraudiilent, and the intention of 
 
Y92 
 
 FEAUDULENT CONVEYANCES, I. 
 
 What deemed ; voluntary. 
 
 Buch mortgagee to assist the mortgagor in 
 hindering and delaying the claims of other 
 creditors cannot be inferred from the mere 
 fact that the mortgage necessarily has such 
 effect : Eohn v. Clement, 58-589. 
 
 2f). Where land was conveyed to a party 
 upon agreement by him to pay certain debts 
 of the grantor, held, that the creditor whose 
 debt was to be paid had the right in equity 
 to subject the property to the payment of 
 •such indebtedness, and that a subsequent 
 grantee by quitclaim deed took subject to 
 such equity : Kaiser v. Waggoner, 59-40. 
 
 30. The creditor may accept a conveyance 
 for the purpose of securing the payment of 
 his debt, even though he knows that the 
 debtor is in debt to other creditors and is 
 prompted by fraudulent motives in making 
 the conveyance. The conveyance cannot be 
 Bet aside upon proof of such knowledge un- 
 less the grantee also participated in the fraud : 
 Chase v. Walters, 28-460 ; Aultman v. Heiney, 
 59-654. 
 
 31. Conveyances, made to creditors having 
 valid claims against the grantor, in amount 
 fully equal to the value of the property con- 
 veyed to them, and taking such conveyances 
 without knowledge of the indebtedness of 
 the grantor or any contemplated fraud by 
 him, held not fraudulent : Citizen^ Bank v. 
 Bhutasel, 68-597. 
 
 32. Sale of a stock of goods to one cred- 
 itor for the purpose of delaying other credit- 
 ors will not be fraudulent as to the vendee 
 unless such purpose was known to him: 
 Hutchinson v. Watkins, 17-475. 
 
 33. Where, pending action on a note, and 
 three days prior to a judgment thereon, cer- 
 tain conveyances of property which would 
 be subject to such judgment when rendered 
 were made to thu-d parties to secure claims 
 which they held of the same nature and 
 vaUdity as that upon which suit was brought, 
 and plaintiff after judgment bought in the 
 property for a very small portion of its 
 value and then sought to set aside such con- 
 veyances as fraudulent, it appearing that the 
 debtor retained property sufficient in value 
 to satisfy plaintiff's claim, held, that such 
 conveyances would not be set aside as fraud- 
 ulent: Robinson v. First M. E. Church, 59- 
 717. 
 
 34. Where the grantee does not participate 
 
 in the fraudulent intent of grantor, but takes 
 the property conveyed to secure his own 
 bona fide claim subject to the payment of 
 certain other indebtedness, and claims to 
 hold for that purpose only, and to be willing 
 to account for the balance for the satisfac- 
 tion of any bona fide creditor, the convey- 
 ance is not to be treated as fraudulent: 
 Gould V. Hurto, 61-45. 
 
 35. A conveyance in extinguishment of 
 pre-existing indebtedness will not be fraudu- 
 lent even between relatives, although there 
 is evidence that the grantee has knowledge 
 that the grantor has other creditors whom 
 he is intending to defraud by such convey- 
 ance : Adams v. Ryan, 61-733. 
 
 36. The law will protect a creditor who 
 by his diligence has secured his own claim, 
 even though he knew of the failing condition 
 of the debtor when he accepted the security, 
 if his only purpose in accepting it was to 
 protect his own interests : Poole v. Seney, 66- 
 503. 
 
 37. A promise by the creditor that if the 
 debtor will convey property to him in pay- 
 ment, he will reconvey it to the debtor's 
 wife as a gift, it appearing that the amount 
 of property thus conveyed is not in pxcess 
 of the real indebtedness to the creditor, will 
 not make the transaction fraudulent: Smith 
 V. Riggs, 56-488. 
 
 38. The fact that a person is insolvent will 
 not render a sale by him of property for cash 
 and an existing indebtedness against him 
 fraudulent. Nor would the fact that the pur- 
 chaser held a chattel mortgage on the prop- 
 erty purchased and other property, and by 
 such purchase threw the burden of his mort- 
 gage upon such other property, which was 
 subject to the claims of other creditors, ren- 
 der the sale void : Connolly v. Dillrance, 50-92. 
 
 39. A creditor, although having an honest 
 claim, cannot use it for the purpose of hinder- 
 ing and delaying other creditors: Craig v. 
 Fowler, 59-200. 
 
 40. A creditor must, in taking a mortgage, 
 act for the purpose of securing his claim and 
 in good faith. Such honesty of purpose and 
 good faith would not exist if one of the ob- 
 jects in taking the security were to assist the 
 debtor in placing his property beyond the 
 reach of his other creditors: Headington v. 
 Langland, 65-276. 
 
FRAUDULENT CONVEYANCES, I. 
 
 T93 
 
 What deemsd; voluntary. 
 
 41. Grantee protected as to advances: 
 
 Where the grantee in a fraudulent convey- 
 ance has paid oflE a mortgage, or purchased 
 and taken an assignment of other liens upon 
 the land prior to the judgment of the creditor 
 Beeking to set the conveyance aside, he should 
 be subrogated to the rights of the original 
 holdei', and entitled to a lien on tlie prop- 
 erty for the amount advanced by him : Gar- 
 ner V. Philips, 35-597 ; Smith v. Orimes, 43- 
 356. 
 
 42. Where a conveyance of property from 
 mother to son was made for one-half its 
 value, the consideration being a sum paid 
 and the assumption of a mortgage existing on 
 the property, and the premises were sufficient 
 in value to repay the consideration and also 
 satisfy the claim which was sought to be en- 
 forced against the property, lield, that the 
 conveyance would, under the circumstances, 
 be treated as fraudulent to the extent that 
 the value of the jjroperty exceeded the con- 
 sideration paid therefor, and such excess 
 would be applied to the payment of the cred- 
 itor's claim: Johnston Harvester Co. v. Cib- 
 ula, 63-697. 
 
 43. Even where it is not shown that a con- 
 veyance is fraudulent, if it can be regarded 
 as given as security for money advanced, it 
 will be so treated, and the grantee will be con- 
 sidered as a mortgagee in possession : Keeder 
 V. Murphy, 43-413. 
 
 44. Where it was shown that a conveyance 
 was made in good faith to secure grantee for 
 an indebtedness due to him from grantor, 
 held, that such conveyance could not be set 
 aside at the suit of an execution creditor, ex- 
 cept upon payment by him of the indebted- 
 ness secured : Moss v. Dearing, 45-530. 
 
 45. Where, in consideration of a convey- 
 ance understood by both parties to be fraud- 
 ulent, vendee paid a debt due from vendor 
 to one of his creditors, held, that as the 
 debtor had the right to make such a prefer- 
 ence, the vendee was not liable to account 
 for the portion of the value of the goods thus 
 appropriated : Starker v. Luse, 33-595. 
 
 46. Fraudulent conveyances as between 
 partners: The purchase by a partner of the 
 interest of his copartner is not necessarily to 
 be deemed to have been made in bad faith 
 as to the creditors of such copartner, even 
 though he is insolvent and the purchaser has 
 
 knowledge of such insolvency: Darlandv. 
 Rosencrans, 56-123. 
 
 47. The acceptance by a creditor of a mem- 
 ber of a firm, of payment out of the partner- 
 ship funds, or out of money borrowed by one 
 member of the partnership from another, 
 will not be deemed fraudulent in the absence 
 of knowledge of fraudulent intent or of the 
 inability of the partnership to pay its debts : 
 George v. Wamsley, 64-175. 
 
 48. Where goods, sold by a firm, are partly 
 paid for by the cancellation of an individual 
 debt of one of the partners, this amounts to 
 a diversion of firm property to the payment 
 of individual indebtedness, and, if the firm is 
 insolvent, constitutes an actual fraud upon 
 its creditors : Patterson v. Seaton, 70 . 
 
 49. Fraudulent conveyances as between 
 husband and Mite: If the husband, after a 
 voluntary conveyance to the wife, holds Ijim- 
 self out to the world as the owner of the 
 property, the transaction may be impeached 
 for fraud if it appears that the representa- 
 tions of the husband were relied upon and 
 that the creditor had a right to rely upon 
 them : Lyman v. Cessford, 15-229. 
 
 50. The act of the wife in withholding 
 from record a voluntary conveyance of the 
 husband until credit had been given to the 
 husband on the faith of the property, would 
 perhaps be deemed a fraud, if wilfully or 
 negligently done; but where the title in 
 question was never in the husband, but the 
 conveyance was procured by him to be made 
 directly to the wife by third parties, and 
 there was a failure by inadvertence to secure 
 the recording of the deed by the wife, lield, 
 that a subsequent creditor could not have 
 the deed set aside : Ibid. 
 
 51. Where a conveyance from the husband 
 to the wife was upon good and sufficient con- 
 sideration, accompanied with possession ex- 
 clusive in its character, held, that the mere 
 neglect to file the deed for record could not 
 act as an estoppel of the wife in asserting her 
 title : May v. Teabout, 65-157. 
 
 52. Facts in a particular case held suffi- 
 cient to show knowledge on the part of the 
 wife of the fraudulent character of a con- 
 veyance made to her by her husband : Zim- 
 merman V. Heinrichs, 43-260. 
 
 53. While ante-nuptial settlements have 
 been upheld against an existing creditor of 
 
lu 
 
 FRAUDULENT CONVEYANCES, I. 
 
 What deemed ; voluntary. 
 
 the husband even when it was known to the 
 wife that the husband was indebted, this 
 will not be done when the settlement was 
 grossly out of proportion to the husband's 
 station and oircumstances, so that the facts 
 of the case will charge the wife with knowl- 
 edge of the fraud : Gordon v. Worthley, 48- 
 439. 
 
 54. Where, by the acts and declarations of a 
 wife, holding out that the husband is worthy 
 of credit by reason of the ownersliip of 
 lands, a person is induced to give him credit, 
 and render sei'vices under contract with him, 
 the wife will be estopped from setting tip her 
 title to such lands against such person under 
 a conveyance from the husband, even though 
 it can be shown that she was the equitable 
 owner of the property: Hendershott v. 
 Hennj, 63-744. 
 
 65. Where a deed to property purchased 
 with the wife's money was by mistake made 
 to the husband, without the wife's knowl- 
 edge, and while the property stood in the 
 husband's name he was accepted as surety 
 on the faith of such property, but before 
 judgment was recovered against him he 
 conveyed the property to his wife, held, that 
 such property could not be subjected to the 
 payment of a judgment against the husband 
 as such surety : Crouse v. Morse, 49-383. 
 
 56. The fact that title to land bought with 
 money of the wife is taken in the name of 
 the husband, and that while thus held by 
 him debts are contracted, will not estop the 
 wife from asserting her equitable title to the 
 land as against such debtor: Bennet v. 
 Strait, 63-630. 
 
 57. Where the husband, with his own 
 money or the money of others which he 
 holds, enters into business and acquires prop- 
 erty in his wife's name, such property can- 
 not be held by the wife free from her hus- 
 band's debts : Hamilton v. Lightner, 53-470 ; 
 Ticonio Bank v. Harvey, 16-141 ; Laing v. 
 Cunningham, 17-510. 
 
 58. Where a husband and wife acquire 
 property by their joint industry and manage- 
 ment, which is taken in the name of the 
 husband, a conveyance thereof, without con- 
 sideration, to the wife, to the prejudice of 
 existing creditors of the husband, will be set 
 aside: Langfordv. Thurlby, 60-105. 
 
 69. A vendor's lien cannot be enforced by 
 
 the assignee of the vendor as against the 
 wife of the vendee, to whom the property 
 has been conveyed in consideration of an ex- 
 isting indebtedness due her from her hus- 
 band, and with the knowledge and consent 
 of the holder of the lien : Shepard v. Pratt, 
 33-396. 
 
 60. A conveyance of land by the husband 
 to the wife, to secure advances of money 
 made by her to him', is valid: Doyle v. 
 McGuire, 88-410. 
 
 61. Where a debtor who would have been 
 worth ten thousand dollars if persons owing 
 him had remained solvent and performed 
 their contracts, conveyed three thousand 
 dollars' worth of real property to his wife in 
 payment of money advanced him by her, 
 held, that the transaction was not fraudulent : 
 Jones V. Brandt, 59-333. 
 
 62. Where the wife has advanced money 
 to the husband with the understanding that 
 it shall be repaid to her, the fact that her 
 claim against her husband has become barred 
 by the statute of limitations will not render 
 fraudulent a conveyance by him in satisfac- 
 tion of such indebtedness. The husband's 
 moral obligation to pay the wife is sufficient 
 to prevent such a transfer being fraudulent: 
 City Bank v. Wright, 68-133. 
 
 63. The fact that the wife in accepting 
 such conveyance has knowledge of the em- 
 barrassed condition of her husband will not 
 render the conveyance fraudulent. She has 
 the same right as other creditors to obtain 
 payment under such circumstances : Ttnd. 
 
 64. Evidence in a particular case held suf- 
 ficient to show that a conveyance from hus- 
 band to wife was made in payment of a valid 
 debt from the husband to the wife and was 
 therefore not fraudulent: Farmer!^ Nat. 
 Bank v. Warner, 68-147. 
 
 65. Cases of conveyance of property from 
 husband to wife, made in consideration of 
 money previously received from the wife by 
 the husband, and claimed by creditors to be 
 fraudulent as to them, involve the good faith 
 of the ownership of the property and the ex- 
 istence of debts as between the husband and 
 wife, and commonly depend for determinar 
 tion upon circumstances from wliich fraud 
 is inferred. Under such circumstances the 
 supreme court will not on appeal disturb 
 the verdict of a jury on such question unless 
 
FRAUDULENT CONVEYANCES, I. 
 
 795 
 
 What deemed ; voluntary. 
 
 they are sure that, allowing to the verdict the 
 presumption in its favor arising from the op- 
 portunity of the jury to judge of the credi- 
 bility of the witnesses, it is so against the 
 evidence as to raise the presumption of pas- 
 sion or prejudice: Ennehing v. Scholtz, 69- 
 473. 
 
 66. Where, soon after mamage, the veife 
 gave to the husband five or six hundred dol- 
 lars coming to her by inheritance, which he 
 invested in property in his own name, and 
 forty years afterward the husband conveyed 
 to the wife other property which was a por- 
 tion of what had been obtained by him 
 through various exchanges from the prop- 
 erty originally bought with the wife's money, 
 held, that the money of the wife given to 
 her husband could not, without any express 
 agreement for repayment, be considered a 
 consideration for the conveyance by the hus- 
 band to the wife, and that such conveyance, 
 being procured by the wife from the hiis- 
 band for the purpose of preventing him from 
 squandering his property, was fraudulent as 
 to existing creditors : Moore v. Orman, 56-39. 
 
 67. Sale by the wife to the husband of per- 
 sonal property, taking back a chattel mort- 
 gage thereon for the purchase money, and 
 the assignment of a policy of insurance on 
 such property, held, not to be a fraudulent 
 transaction under the circumstances: Van- 
 dercookv. Gere, 69-467. 
 
 68. Where conveyances to the wife with 
 intent to defraud creditors are made upon 
 
 la, partial consideration, they should be 
 
 ' treated as a security for the amount of the 
 
 husband's indebtedness to her and sustained 
 
 to that extent: Keeder v. Murphy, 43-413; 
 
 Stamy v. Laning, 58-663. 
 
 69. A father having intended to convey a 
 portion of his real estate to his son L. , was 
 requested by him to make the conveyance to 
 the wife of said L. , which was accordingly 
 done. In an action by the creditors of L., to 
 subject the land to their claims, held, that in 
 the absence of a showing of fraud or bad faith 
 •on the part of the donor or donee, the property 
 <;ould not be reached, although L. might have 
 had a fraudulent purpose in view in request- 
 ing the deed to be made to his wife : Stow v. 
 Miller, 16-460. 
 
 70. Where one who is insolvent pays a 
 consideration for property which he procures 
 
 to be conveyed to his wife, the conveyance is 
 void: Oear v. Schrei, 57-666; Triplett v. 
 Graham, 58-185. 
 
 71. Voluntary conveyances between hus- 
 band and wife: It is not necessary, in caseof 
 a voluntary conveyance from the husband to 
 the wife without consideration, and which is 
 made at a time when the husband is largely 
 indebted and insolvent, to allege fraud. Such 
 a conveyance is iDresumptively fraudulent: 
 Triplett v. Graham, 58-135 ; Watson v. Rislc- 
 amire, 45-231. 
 
 72. A voluntary conveyance by the husband 
 to the wife while Ills debts were inconsiderable 
 as compared with his property, held fraudu- 
 lent, and set aside upon the application of 
 subsequent creditors, the husband having re- 
 mained in possession as the apparent owner: 
 Gardner v. Baker, 25-348. 
 
 73. A voluntary conveyance of land by 
 husband to wife, where it does not appear 
 that the husband was indebted at the time, 
 and where no fraud is shown, is not fraudu- 
 lent as to subsequent creditors: Shepardv. 
 Pratt, 32-296; State v. Wallace, 67-77. 
 
 74. Such a conveyance cannot be rendered 
 fraudulent by reason of subsequent insolv- 
 ency: Phillips V. Potter, 32-589. 
 
 75. A voluntary conveyance from husband 
 to wife, which still leaves the husband solv- 
 ent and possessed of other property sufficient 
 to satisfy his debts, cannot be set aside as 
 fraudulent : Cours v. Hanna, 34-597. 
 
 76. A conveyance from husband to wife, 
 which purports to be made for a valuable 
 consideration, is not of itself presumptively 
 a gift, and the burden is upon the pai'ty 
 claiming it to be such to show the want of 
 consideration : Stephenson v. Cook, 64-265. 
 
 7 7. A gift by a husband to liis wife is not 
 of itself improper, and before a creditor of 
 the husband can ask to have it set aside, he 
 must show that the husband has not suf- 
 ficient property remaining to enable the 
 creditor to collect his claim : Ibid. 
 
 78. Where it did not appear but that at 
 the time of the voluntary conveyance to the 
 wife, the husband had property sufficient to 
 pay all his debts, held, that the conveyance 
 was not fraudulent : Lloyd v. Biince, 41-660. 
 
 70. In view of the wide latitude which is 
 allowed in the admission of testimony to 
 show fraud, held, in a case where a fraud- 
 
Y96 
 
 FRAUDULENT CONVEYANCES, I. 
 
 What deemed ; voluntary. 
 
 ulent conveyance of personal property from 
 husband to wife was alleged, evidence that 
 the wife had a large amount of other prop- 
 erty in her hands transferred to her by her 
 husband was admissible : Presnall v. Herbert, 
 34-539. 
 
 80. Under particular facts, held, that a 
 conveyance from husband to wife was with- 
 out consideration and therefore void as to 
 existing creditors : Boulton v. Hahn, 5S-518. 
 
 81. Where the wife joined the husband in 
 a conveyance of property to a third party 
 with the understanding that such third party 
 should reconvey a portion of such property to 
 her in consideration of her dower interest, 
 which was done, held, that the conveyance 
 to the wife was without consideration and 
 voluntary as against creditors, the wife hav- 
 ing no such interest in the property during 
 her life as to render such conveyance valid 
 against creditors : Haynes v. Kline, 64^308. 
 
 82. Under a certain state of facts, a deed 
 from husband to wife held fraudulent and 
 void as against existing creditors of the 
 husband : Brainard v. Van Kiiran, 32-261 ; 
 Pratt V. Green, 25-39. 
 
 83. The purchase of an interest by the wife 
 in mines owned by her husband, and the in- 
 vestment of the proceeds of the sale of such 
 interest in other property managed prin- 
 cipally by him, held not fraudulent in a par- 
 ticular case : Sears v. Robinson, 61-745. 
 
 84. Under particular facts, held, that a 
 conveyance by a husband to the wife was 
 not fraudulent as against creditors: Addicken 
 V. Siimphal, 56-365. 
 
 85. Crops raised on land which is conveyed 
 from husband to wife by an instrument iii 
 the form of an absolute deed, but intended as 
 amortgage, are not necessarily subject to the 
 payment of the husband's debts : Lanning v. 
 Seaton, 68-156. 
 
 86. Objection to the conveyance of the 
 homestead from husband to wife cannot be 
 made by a creditor after the husband's death, 
 unless it appears that the husband was in- 
 debted when such convej-ance was made: 
 Kendall v. Kendall, 43-464. 
 
 87. Conveyances between parents and 
 children : A sale of land by parent to child 
 for a consideration less than that named in 
 the deed, and immediately preceding insolv- 
 ency, is a circumstance sufficient to raise a 
 
 presumption of fraud, but such presump- 
 tion must be sustained by proof when fraud 
 is denied in the answer: Culbertson v. 
 Luckey, 13-12. 
 
 88. A conveyance from father to son, for 
 the purpose of defrauding creditors of the 
 father, leaves the land subject to the father's 
 debts as before : State Bank v. Harrow, 26- 
 436. 
 
 89. Where the owner of property obtained 
 the release of a claim for which it was held 
 by a third person and secured a reconvey- 
 ance thereof to children without considera- 
 tion, held, that the property was subject to 
 the payment of the debts of such ov.'ner, 
 even though the satisfaction of the claim 
 for which it was held before reconveyance 
 was procured by the application tliereto of 
 joroperty exempt from execution: Fried- 
 lander V. Mahoney, 31-311. 
 
 90. A conveyance made to a son in part 
 consideration of the assumption by him of 
 the payment of notes made by the grantor 
 to his daughters for services rendered in the 
 family of such grantor, while members of 
 such family, will be deemed fraudulent, even 
 though a part of the consideration of such 
 conveyance may actually have been paid: 
 Irish V. Bradford, 64^303. 
 
 91. Where husband and wife, while in- 
 solvent, conveyed property owned by them, 
 and, after several subsequent conveyances 
 made within a short time, it came into the 
 hands of their son, the last conveyance being 
 made by his procurement and in considerar 
 tion of the .assumption of liens on the prop- 
 ei-ty less than its value, held, that, so far as 
 the value of the property exceeded the liens 
 assumed, the conveyance was fraudulent: 
 Lyon V. Haddock, 59-683. 
 
 92. The transfer of property to a son to 
 pay a bona fide indebtedness will not be re- 
 garded as fraudulent, although it gives him 
 a preference over other creditors : Sands v. 
 Peirson, 61-702. 
 
 93. Where it appeared that a father sold 
 to a son, just come of age and stiU living at 
 home, the farm on which they lived, the son 
 agreeing to pay therefor the full value in 
 debts of the father, for a large portion of 
 which the son was already liable as surety, 
 held, that the conveyance was not fraudu- 
 lent, even though it left other debts of the 
 
FRAUDULENT CONVEYANCES, I. 
 
 T97 
 
 What deemed ; voluntary. 
 
 father unprovided for : Fleischer v. Dignon, 
 53-288. 
 
 94. Where a husband induced his second 
 wife to join in a conveyance of the home- 
 stead to liis eldest son by his first wife, prom- 
 ising to give her a portion of the proceeds 
 and furnish her further support, but failed 
 to do so, held, that there was no fraud war- 
 ranting the setting aside of the deed as fraud- 
 ulent in behalf of a party who had recovered 
 judgment against the husband for support 
 subsequently furnished the wife: Curl v. 
 Donaldson, 53-391. 
 
 95. A reconveyance from son to father in 
 payment of purchase money on a conveyance 
 of the same property from the father to the 
 son wiU not be considered fraudulent in the 
 absence of proof of actual fraudulent intent, 
 or that the conveyance from father to son 
 was intended as a gift : First Nat. Bank v. 
 Eostetter, 61-395. 
 
 96. Where the daughter of a debtor occu- 
 pied land which it was sought to have sub- 
 jected to the payment of his debts, and sub- 
 sequently, pending such litigation, bought in 
 the same from a purchaser at a trustee's sale, 
 held, that she was not subject to the credit- 
 or's claim unless it appeared that she bought 
 in the property with her father's money: 
 Semple v. McCrary, 46-37. 
 
 97. A conveyance by a father to a 
 daughter for services rendered in his family, 
 held not fraudulent: Collier v. French, 64- 
 577. 
 
 98. Where a father caused a conveyance of 
 property to be made to his son for services 
 performed fifteen years before, and such con- 
 veyance was without knowledge of any 
 claim on the part of a creditor who afterwards 
 sought to set it aside, held, that there was 
 not sufficient evidence of fraudulent intent 
 to render the conveyance void: Hunt v. 
 Hoover, 34-77. 
 
 99. In a particular case held that a convey- 
 ance by a parent to a child who had at- 
 tained majority, but remained a member of 
 the family, for services rendered, was made 
 in pursuance of the parent's express con- 
 tract and was therefore valid : Chadwich v. 
 Devore, 69-687. 
 
 100. Conveyance of property to children 
 by a debtor immediately after a decision ad- 
 verse to him in the supreme court and pend- 
 
 ing a rehearing, held fraudulent: Potter v. 
 Phillips, 44r-353. 
 
 101. Under facts in a particular case, held, 
 that a conveyance from father to son was 
 made by the father for the purpose of de- 
 feating his creditors and that the son liad 
 knowledge of such intention : Dicker-man v. 
 Farrell, 59-759. 
 
 102. In particular cases, held, that con- 
 veyances by parents to children were with- 
 out consideration and fraudulent: Hart v. 
 Flinn, 36-366; Star Wagon Co. v. Maurer, 
 53-741 ; Blanchard v. Glasier, 64-675. 
 
 103. Evidence in a particular case held 
 not sufficient to render a conveyance from a 
 son to his mother fraudulent : Caffal v. Hale, 
 49-53. 
 
 104. Other relatioiisliii): Where a con- 
 veyance was made by a nephew to an uncle, 
 to whom the former had been in the habit of 
 looking for counsel and advice, upon the 
 suggestion that it was necessary to do so in 
 order to prevent the property being taken by 
 others who would claim it as heirs, held, 
 that the relation between the parties was 
 such that equity would grant relief from 
 such conveyance, it appearing that there 
 were actually no creditors who would have 
 been defrauded by the transaction : Williams 
 V. Collins, 67-413. 
 
 105. CoiiTeyance of homestead: The con- 
 veyance of a homestead which is not subject 
 to the claims of creditors cannot be set aside 
 as fraudulent as to such creditors: Smith 
 V. Grimes, 43-356; Kendall v. Kendall, 43- 
 464. 
 
 106. If a party makes a conveyance of prop- 
 erty, such as a homestead, which is exempt 
 from the claims of creditors, such conveyance 
 cannot be set aside as fraudulent as to them, 
 even though voluntary and with the inten- 
 tion of preventing their claims from attach- 
 ing thereto: Delashmut v, Trau, 44-613. 
 
 10 7. Whatever may be the intent of the 
 conveyance it cannot be set aside as in fraud 
 of creditors, unless it does in fact hinder or 
 delay them in collecting then- claims. There- 
 fore where a conveyance of property includ- 
 ing the homestead was made to a creditor, 
 and the amount of his claim exceeded the 
 value of so much of said property as was not 
 exempt as a homestead, held, that the con- 
 veyance could not bo considered fraudulent, 
 
798 
 
 FRAUDULENT CONVEYANCES, I.' 
 
 What deemed ; voluntary. 
 
 whatever might have been the debtor's inten- 
 tion : Aultman v. Heiney, 59-654. 
 
 108. The fact that a debtor, holding a, 
 homestead exempt from execution for his 
 debts, exchanges the same for other property 
 which he procures to be conveyed directly to 
 his wife, does not constitute such conveyance 
 to his wife fraudulent : Jones v. Brandt, 59- 
 332. 
 
 109. Where defendant had sold property 
 of his wife and used the proceeds, agreeing 
 to convey to her property of like value, and 
 afterwards exchanged the homestead, which 
 was in his own name, for property equal in 
 value to the amount he was to repay her, the 
 deed of which property was made to her: 
 and it appeared that the homestead so con- 
 veyed was not subject to the claims of cred- 
 itors, and that the wife only joined in the 
 conveyance of the homestead on condition 
 that the property acquired should be deeded 
 to her, held, that the conveyance was not 
 fraudulent as to such creditors: Officer v. 
 Evans, 48-557. 
 
 110. Where the wife joins in a conveyance 
 of the homestead which is not liable to the 
 claims of creditors, and property exchanged 
 therefor is conveyed to her, the conveyance 
 cannot be set aside as fraudulent as against 
 such creditors : Oivyer v. Figgins, 87-517. 
 
 111. The conveyance of property for less 
 than its value cannot be set aside as fraudu- 
 lent at the suit of creditors when it is a 
 homestead and not liable to the claims of 
 such creditors : Griffin v. Sheley, 55-513. 
 
 112. Exempt property ; earning's: Al- 
 though exempt property is used to satisfy a 
 claim for which oth^r property of the debtor 
 is held by a third person, yet a reconveyance 
 of such property by such third person to 
 children of the owner will be fraudulent, and 
 the property will be subject to debts of the 
 owner: Friedlander v. Mahoney, 31-311. 
 
 113. The use by the husband of personal 
 earnings in payment of property purchased 
 by his wife amounts to the giving of such 
 property to his wife, and if the earnings are 
 exempt from execution at the time they 
 are so employed, such a purchase does not 
 constitute a fraud upon the husband's cred- 
 itors : Eobb V. Brewer, 60-539. 
 
 114. It is not fraudulent for a debtor to 
 contract to render personal services with the 
 
 aid of implements exempted to him by law 
 in the service of another to raise crops, etc., 
 and such crpps do not become liable for his 
 indebtedness, although, if raised by him on 
 his own account by the same services, they 
 would be subject to his debts : Patterson v. 
 Johnson, 59-397. 
 
 115. Toluntary conveyances: The want 
 of consideration may be a badge of fraud, 
 but it is only presumptive and not conclusive 
 evidence of it, and may be met and rebutted 
 on the other side : Carson v. Foley, 1-524. 
 
 116. A mere voluntary conveyance is not 
 fraudulent per se as to existing creditors: 
 Chwyer v. Figgins, 37-517. 
 
 117. Whether a voluntary conveyance to 
 a chUd will be fraudulent as to creditors of 
 the father in the absence of actual intent to 
 defraud wiU depend upon its reasonableness 
 and the condition of the gi-antor as to his 
 ability to pay his debts out of other property 
 retained by him : Stewart v. Sogers, 25-395. 
 
 118. A conveyance cannot be considered 
 fraudulent as to creditors when it is made in 
 the discharge of a moral obhgation, although 
 such obligation is one which cannot be en- 
 forced at law : Cottrell v. Smith, 63-181. 
 
 119. Voluntary conveyances, while good 
 between the parties, are void in so far as they 
 have the effect to delay, hinder or defraud 
 creditors. If the person making the con- 
 veyance is indebted at the time, the burden 
 of proof is upon him to establish facts which 
 wUl repel the presumption of a fraudulent 
 intent : Elwell v. Walker, 52-256. 
 
 120. If at the time of the conveyance the 
 grantee has more than sufficient property to 
 pay his other debts, the conveyance may be 
 valid even though the other property may 
 turn out to be inadequate by reason of some 
 accident which human foresight could not 
 guard against, such as losses by trade or by 
 fire or storm. But the ordinary fluctuar 
 tion in the value of property occasioned by 
 the condition of mercantile affairs cannot be 
 ranked among such casualties. Where the 
 party making the conveyance was indebted 
 at the time it was made, but claimed that his 
 remaining property was sufficient to pay his 
 debts, held, that the fact that the debt was 
 an Iowa debt and the conveyance in ques- 
 tion covered all the debtor's Iowa property, 
 and that his remaining property was heavily 
 
FRAUDULENT CONVEYANCES, I. 
 
 799 
 
 What deemed ; voluntary. 
 
 incumbered, and that at the time of the suit 
 his property was exhausted in payment of in- 
 debtedness prior to that of plaintiff, without 
 his having suffered any casualties, were suf- 
 ficient to stamp the conveyance as fraudu- 
 lent: Ibid. 
 
 121. A party who sets up a voluntary con- 
 veyance in opposition to the claims of jjre- 
 existing creditors is required to show that 
 the means of the donor, independently of the 
 property conveyed, were abundantly ample 
 to satisfy all his creditors, and where it is 
 found that the debtor is insolvent at the 
 time judgment is rendered, his insolvency 
 will be considered as extending back be- 
 yond tlie voluntary conveyance of the prop- 
 erty made during his indebtedness unless 
 the contrary is shown : Strong v. Lawrence, 
 58-55. 
 
 122. Even where a partial consideration is 
 paid, if the difference between the price paid 
 and the actual value of the property is ap- 
 parent, the conveyance will be regarded as 
 voluntary to the extent of that difference: 
 Ibid.; Lyonv. Haddock, 59-683. 
 
 123. A conveyance which on its face pur- 
 ports to be voluntary as to part of the prop- 
 erty is void as to creditors to the extent that 
 it is voluntary, and where a creditor seeks to 
 subject a pai-t of the property to the pay- 
 ment of his debt, the burden of proof is 
 upon defendant to show the deed to have 
 been for a valuable consideration: Baldwin 
 V. Tuttle, 23-66. 
 
 124. Personal property given by a father 
 to his child, while solvent, which is taken 
 possession of by the child, and thereafter re- 
 mains under his exclusive control, is not 
 Uable to execution on a debt of the father's 
 subsequently contracted, though the prop- 
 erty remained in the father's house, and 
 there was no conveyance in writing, nor 
 notice of the child's ownership of record: 
 Pierson v. Seisey, 19-114. 
 
 125. A voluntary deed, valid and bona 
 fide when made, cannot be rendered fraud- 
 ulent by subsequent embarrassments of the 
 grantor, and in the absence of fraudulent in- 
 tent will be good against subsequent credit- 
 ors: Lyman V. Cessford, 15-329. 
 
 126. A subsequent indebtedness is not suf- 
 ficient to make a voluntary conveyance 
 fraudulent; to have that eflEect there must 
 
 have been at the time, on the part of the 
 grantor, a fraudulent intent: Ibid. 
 
 127. A voluntary conveyance, made in 
 good faith, cannot be defeated by a subse- 
 quent purchaser or incumbrancer who had 
 notice of it: Wolf v. Van Metre, 23-397; 
 Gardner v. Cole, 21-205. 
 
 128. The payment of individual debts of a 
 partner out of the assets of the firm is not, in 
 law, regarded as voluntary and fraudulent as 
 to the creditors of the partnership, provided 
 there is any actual consideration, such as 
 that the individual partner shall remain in 
 the firm and assist in carrying on the busi- 
 ness : Oeorge v. Wamsley, 64-175. 
 
 129. Land held by a voluntary convey- 
 ance cannot, after the death of the grantor, 
 be subjected to the payment of the expenses 
 of the administration of his estate : Willett v. 
 Main, 65-675. 
 
 1 30. In a particular case, held that absence 
 of consideration was not affirmatively estab- 
 lished, and therefore, no actual fraud being 
 shown, the mortgage would be sustained: 
 Preusser v. Menshaw, 49-41. 
 
 131. Facts in a particular case held suffi- 
 cient to show that a conveyance of property 
 by a judgment debtor was not supported by 
 a consideration and was therefore void as to 
 his creditors : Warder v. Rivers, 64-413. 
 
 132. Where a wife, being surety on her 
 husband's note, from which no liability 
 arose against her, voluntarily conveyed lands 
 owned by her to her children, and after- 
 wards suffered judgment to go against her 
 on the note by default, which was conclu- 
 sive upon her, it was held that the lands so 
 conveyed by her could not be subjected to 
 the payment of the judgment, one half the 
 coiirt putting it upon the ground that the 
 judgment did not relate back to the date of 
 the note, and the other half on the ground 
 that the judgment creditors had released 
 security for the note after the conveyance in 
 question had been made, and with notice of 
 it: Wolfv. Van Metre, 23-397. 
 
 133. The rule in this country seems to be, 
 that if the property transferred by the debtor, 
 under voluntary conveyance, be such as 
 could be reached by the creditor, either in a 
 court of law or equity, such conveyance to 
 the prejudice of creditors would be void: 
 Ibid. 
 
800 
 
 FRAUDULENT CONVEYANCES, 11. 
 
 Who may have relief against. 
 
 II. "Who mat have belief against. 
 
 134. Not one who has legal remedy: A 
 
 plaintiff who has a complete remedy for the 
 enforcement of his judgment against prop- 
 erty of the debtor is not entitled in equity to 
 an action against a fraudulent conveyance 
 of other property : Ayers v. Rivers, 64-543. 
 
 13.5. Return of execution ; proof of in- 
 solvency: A plaintiff seeking in a court of 
 equity to have a conveyance set aside as 
 fraudulent must show, by return of nulla 
 iona (no property found) upon the execution, 
 or in some other way, that he has no remedy 
 at law for the enforcement of his claim: 
 Gwyer v. Figgins, 37-517. 
 
 136. But it is not indispensable that the 
 grantor shall have issued execution and had 
 it returned nulla bona, if he charges in his 
 bill and proves on the hearing that the debtor 
 is in fact insolvent, and that an execution, if 
 issiied, must necessarily be returned unsatis- 
 fied. In such case there is no reason to re- 
 quire the creditor to go through the fruitless- 
 form: Gordon v. Worthley, 48-439. 
 
 137. While the return of nulla bona is the 
 most satisfactory method of establishing in- 
 solvency, yet that fact may be chai-ged and 
 proved as a fact without such formality hav- 
 ing been complied with. But no proof of 
 insolvency is necessary where the action is 
 against the estate of a decedent : Postlewait 
 V. Howes, 3-365. 
 
 138. In the absence of any evidence of the 
 insolvency of the debtor an action to set aside 
 a conveyance by him cannot be maintained : 
 Pearson v. Maxfleld, 51-76. 
 
 139. In order to support an action to set 
 aside a conveyance as being in fraud of credit- 
 ors, it is not necessary to show an execution 
 returned nulla bona. It is sufficient if 
 plaintiff show his inability to collect the judg- 
 ment by execution. In such case it will not 
 defeat plaintiff's right to have the convey- 
 ance set aside that defendant is the real 
 owner of other property which he has also 
 fraudulently conveyed and to which a clear 
 title upon sale under execution could not, 
 therefore, be made : Miller v. Dayton, 47-313. 
 
 140. Where an execution has been satis- 
 fied in whole or in part by the sale of de- 
 fendant's interest in property claimed to have 
 been fraudulently coilveyed, and the pur- 
 
 chaser goes into equity to perfect his title or 
 set aside such fraudulent conveyance, the 
 rule that there must be a return of nulla bona 
 does not apply : Harrison v. Kramer, 3-543. 
 
 141. A bill in equity to remove out of the 
 way of an execution a pretended conveyance 
 which is alleged to be void may be main- 
 tained although it does not appear that the 
 party has exhausted his legal remedies in his 
 efforts to obtain satisfaction of his judgment. 
 It is not, therefore, necessary in such case 
 that the execution be returned nulla bona: 
 Loving v. Pairo, 10-383. 
 
 142. A judgment creditor is entitled, after 
 levy under execution and before sale, to 
 bring suit in equity to set aside a convey- 
 ance of the real estate levied on as being 
 fraudulent and void, and in such case a re- 
 turn of nulla bona is unnecessary: Brainard 
 V. Van Kuran, 33-361. 
 
 143. Where a judgment is recovered 
 jointly against two parties, one as maker, 
 the other as indorser and guarantor, the 
 judgment creditor may maintain action to 
 set aside a fraudulent conveyance by the 
 former without showing the insolvency of 
 the latter : Strong v. Lawrence, 58-55. 
 
 144. Party not injuriously affected: 
 Where action was bi-ought to set aside a 
 fraudulent conveyance of a deceased debtor 
 and subject the property to the payment of 
 plaintiff's claim, held, that as there were 
 ample assets in the hands of the executor to 
 pay off any claim of plaintiff's which was 
 allowed, and as any claim not allowed was 
 then barred by the statute, the plaintiff had 
 failed to prove any indebtedness against the 
 estate which entitled him to the relief asked: 
 Jordan v. Stephenson, 17-514. 
 
 145. Existing creditors: It is a prior and 
 not a subsequent creditor that can take ad- 
 vantage of the fraud : Whitescarver v. Bon- 
 ney, 9-480; Fifieldv. Gaston, 12-318. 
 
 146. To enable an attaching creditor to 
 seize and hold property previously conveyed, 
 it is incumbent upon him not only to show 
 that the conveyance was fraudulent, but also 
 to aver and prove that he was a creditor of 
 the vendor at the time of the conveyance: 
 Day V. Kendall, 60-414. 
 
 147. Subsequent creditors: On the mere 
 ground that the conveyance is voluntary, 
 where the gi-antor has no fraudulent intent. 
 
feaudulent conveyances, II. 
 
 801 
 
 Who may have relief against. 
 
 a subsequent creditor cannot impeach it. It 
 seems that, if it was actually fraudulent, the 
 property being held in secret trust for the 
 grantor, who has obtained credit on the faith 
 of his possession and apparent and asserted 
 ownership, a subsequent creditor can have 
 relief against the previous conveyance: Hook 
 V. Mmvre, 17-195. 
 
 148. Where a debtor made a conveyance 
 to his wife, and had existing at the time a 
 debt which was subsequently substituted for 
 one owed by his creditor to a third party, the 
 latter was regarded as an existing rather 
 than a subsequent creditor, and it was held 
 that he might attack the conveyance : Gard- 
 ner V. Baker, 25-343. 
 
 149. A voluntary conveyance of all the 
 property of a person who is largely indebted, 
 and who pays such existing debts by the 
 contracting of subsequent debts, may be set 
 aside at the instance of such subsequent 
 creditors: Barhydt v. Perry, 57-416. 
 
 150. As to whether voluntary and fraud- 
 ulent conveyances are valid as to subsequent 
 creditors, the decisions in this state are 
 hardly reconcilable. The current of authori- 
 ties generally is undoubtedly to the effect 
 that a deed intentionally made to defraud ex- 
 isting creditors wUl be held void as to subse- 
 quent creditors. (Per Beck, J. , in dissenting 
 opinion, collecting the cases) : Bonnell v. 
 AUerton, 51-166. 
 
 151. Creditor in case of tort: A person 
 having a claim for a tort is a creditor in such 
 sense that a conveyance to defeat any judg- 
 ment which he may afterwards obtain is a 
 conveyance to defraud creditors: Weir v. 
 Day, 57-84. 
 
 152. Subsequent judgment: A fraudulent 
 conveyance may be set aside at the suit of 
 the person recovering a judgment in an ac- 
 tion for tort, although at the time of the 
 conveyance plaintiff in the action had not 
 yet recovered his judgment : Miller v. Day- 
 ton, 47-313. 
 
 153. A creditor may pursue property of 
 the debtor disposed of in fraud of creditors, 
 although his judgment is not recovered until 
 after such disposition has been made : Peek- 
 enhaugh v. Cook, 61-477. 
 
 154. A general creditor who has not yet 
 obtained judgment cannot have an in- 
 junction to restrain the disposal of prop- 
 
 VOL. 1 — 51 
 
 erty by his debtor: Buchanan V, Marsh, 11- 
 494. 
 
 Further as to who may have an injunction 
 against fraudulent conveyances, see Injunc- 
 tion, §§ 88-95. 
 
 155. Fraudulent creditor: A person seek- 
 ing to defeat the claims of a creditor by set- 
 ting up a claim against the debtor which is 
 fraudulent or collusive cannot have a fraud- 
 ulent conveyance made by such debtor set 
 aside ; Jones v. Farris, 70 — —. 
 
 156. A judgment creditor may proceed 
 in equity to set aside a fraudulent convey- 
 ance, although the judgment has become 
 dormant so that it cannot be enforced with- 
 out being revived: Postlewait v. Howes, 3- 
 365, 
 
 157. A mortgagee who has not yet i-ecov- 
 ered judgment may have an injunction to 
 restrain a judicial sale in fraud of his rights : 
 Brigham v. White, 44-677. 
 
 158. Attachment: The service of garnish- 
 ment will not entitle a creditor to maintain 
 an action to set aside a fraudulent mortgage. 
 He must have secured a lien by levy under 
 his attachment : Maish v. Bird, 4 McCrary, 
 129. 
 
 159. An assignee for the benefit of cred- 
 itors may maintain an action to set aside a 
 conveyance bj' his assignor made in fraud of 
 creditors : Schaller v. Wright, 70 . 
 
 And see further on this point, Assign- 
 ments, §g 129-133. 
 
 160. The administrator of a decedenfs 
 estate may maintain an action grounded upon 
 a fraudulent alienation of property by the 
 decedent, when the estate is insolvent and 
 the property or its value is required for the 
 payment of- debts : Cooley v. Brown, 30-470 ; 
 Doe V. Clark, 43-123; Harliu v. Stevenson, 
 30-371. 
 
 161. Effect as between parties, heirs. 
 priTies, etc.: A conveyance made for the 
 purpose of hindering, delaying and defraud- 
 ing creditors will nevertheless pass the title 
 against all persons except creditors of the 
 grantee and bona fide purchasers from him 
 for a valuable consideration: Wright v. How- 
 ell, 35-288; Mellen v. Ames, 39-288. 
 
 162. A conveyance made or procured to 
 be made to defraud creditors will not be set 
 aside at the instance of the parties to it, 
 but equity will leave them to their remedy at 
 
802 
 
 FRAUDULENT CONVEYANCES, II, III. 
 
 Who may have relief against. — Mode of relief. 
 
 law, and will not interfere in favor of either : 
 HolUday v. Holliday, 10-200. 
 
 163. A deed executed to defraud creditors 
 is valid between the parties and their heirs, 
 and equity will not require the grantee or 
 his heirs to reconvey by way of enforcing a 
 trust between the parties : Stephens v. Har- 
 row's Heirs, 26-458. 
 
 164. The vendor, in a sale made to defraud 
 creditors, cannot set up the fraud against a 
 mortgagee of the vendee : Osbom v. Eatliff, 
 53-748. 
 
 165. A party who makes a conveyance 
 with intent to hinder, delay or defraud his 
 creditors cannot recover from his grantee or 
 subsequent grantees, and under such circum- 
 stances it is immaterial whether or not such 
 grantee had knowledge of the fraiidulent in- 
 tent of the grantor : Weir v. Day, 57-84. 
 
 166. The fraudulent grantee can have no 
 relief as against a purchaser in good faith 
 and for a valuable consideration from the 
 fraudulent grantor, even with notice : Hurley 
 . . Osier, 44-642. 
 
 See, also, infra, §§ 188-203. 
 
 167. An attorney employed to act for the 
 grantee in a fraudulent conveyance cannot, 
 as against his client, claim that the convej'- 
 ance is void : Byington v. Moore, 63-470. 
 
 168. The conveyance of land by a cor- 
 poration, being authorized by its board of 
 directors, cannot be attacked nor set aside ex- 
 cept by some one holding an equitable right 
 superior to that of the grantee: Miller v. 
 Iowa Land Co., 56-374. 
 
 169. Where one, who had made a volun- 
 tary conveyance to his wife, afterwards pro- 
 cured a judgment against her grantee by 
 collusion and fraud, and set up such judg- 
 ment in attacking the conveyance from such 
 grantee as being fraudulent as to creditors of 
 the latter, it was held that such judgment 
 was void as to such defendant who held 
 under the voluntary conveyance: King v. 
 Tlmrp, 26-283. 
 
 170. While equity will not, as between 
 parties and their heire, interfere to set aside 
 a conveyance which is without consideration 
 and made with a fraudulent intent on the 
 part of both parties to hinder, delay and de- 
 fraud -creditors of the grantor, neither will it 
 lend its aid to enable parties to consummate 
 their fraudulent design, and an action to cor- 
 
 rect such a deed cannot therefore be main- 
 tained : Gehhard v. Sattler, 40-152. 
 
 171. Where a conveyance claimed to be 
 fraudulent is. afterwards canceled, leaving 
 the parties in the same position as before it 
 was made, it cannot afterwards be the ground 
 of an action, although it was originally 
 made with intent to defraud: Davidson r. 
 Dwyer, 62-332. 
 
 172. Where conveyance is not frandu- 
 lent: Where plaintifif had made a convey- 
 ance of property to a party to protect himself 
 against certain claims that were being prose- 
 cuted against him, which claims were, as he 
 insisted, groundless, and were afterwards 
 held to be so, held, that as he was not in fact 
 indebted at the time the conveyance was 
 made, it was not void as made in fraud of 
 creditors and might be shown to have been 
 in trust merely : Morris v. Landaur, 48-334. 
 
 1 73. If a party, for the purpose of puttinj; 
 his property beyond the reach of a third per- 
 son, conveys it to a grantee upon the advice 
 of such grantee, he may have it set aside as for 
 want of consideration if the third person 
 has, in fact, no claim which could be injuri- 
 ously affected by such conveyance, but the 
 burden of proving that fact is on the giantov 
 seeking relief. But proof of a prior settle- 
 ment would be prima facie sufficient, and 
 would throw upon defendant the burden of 
 impeaching such settlement: Kerviok v. 
 MiMiell, 68-373. 
 
 1 74. Although the party making a fraudu- 
 lent conveyance cannot be relieved in equity, 
 yet if there axe no creditors, purchasers or 
 other pei-sons, having a claim or right to the 
 property which may be enforced in law or 
 equity, then the claim will not be in fact 
 fraudulent, whatever the intention with 
 which it was made, and if procured by fraud 
 or undue influence, it may be set aside at the 
 suit of the party making it : Day v. Lomi, 
 51-364. 
 
 III. Mode OF BELIEF ; paeties against 
 
 WHOM BELIEF MAT BE GRANTED. 
 
 175. How the creditor may proceed: A 
 
 creditor may sell under execution the interest 
 of his debtor in the property claimed to be 
 fraudulently conveyed, and having become 
 the purchaser, if there is no redemption, tile 
 
FRAUDULENT CONVEYANCES, III. 
 
 803 
 
 Mode of relief. 
 
 his bill to quiet his title, or the person hold- 
 ing the adverse title may file his' bill and en- 
 join the creditor from interfering with his 
 property until the title thereto is settled: 
 Harrisorfu. Kramer, 3-543. 
 
 176. Instead of adopting this course, the 
 creditors may, in the fu-st instance, after the 
 return of an execution unsatisfied, commence 
 their suit in equity to remove the obstruction 
 and subject the property to the satisfaction of 
 their claims : Bridgman v. McKissiek, 15-360. 
 
 177. in such case the creditor who first 
 brings his equitable action acquires a priority 
 over one who has not yet sought relief in 
 equity, but has levied on and sold the prop- 
 erty fraudulently conveyed : Ibid. 
 
 178. A sale on execution without subse- 
 quent action to remove the fraudulent con- 
 veyance would confer a mere barren right 
 without value, because the legal title of the 
 fraudulent grantee, without an adjudication 
 against him, would be an insuperable barrier 
 to the acquisition of any right, title or posses- 
 sion. Therefore a creditor who obtains his 
 judgment after a fraudulent conveyance has 
 no statutory right to redeem the property 
 from a sale thereof made under special exe- 
 cution at the suit of other creditors, who have 
 had the conveyance set aside in a proceeding 
 in equity, for the reason that such fraudulent 
 conveyance was absolute as to the grantor, 
 and he had no title to which the judgment 
 could attach as a lien: Howland v. Knox, 
 59-46. 
 
 1 79. Where property levied on by an ofli- 
 cer is in possession of a third person who 
 claims to be owner thereof under sale from 
 the execution debtor, proof of such possession 
 and sale is sufl&cient to make out a prima 
 fade case in an action by the person in pos- 
 session to recover the property from the offi- 
 cer. If the officer relies upon the fact that 
 the sale is fraudulent, the burden of proof 
 is upon him to show it. That fact being 
 shown, he may then rely upon the writ, 
 and he will have established his right to hold 
 the property as against the plaintiff: Parsons 
 V. Hedges, 15-119. 
 
 180. The usual proceeding to subject per- 
 sonal property fraudulently conveyed to the 
 payment of debts is to levy thereon as though 
 no such conveyance had been made, and if 
 the giantee seeks to assert his title by re- 
 
 plevin, to test the validity of the conveyance 
 in that action. An equitable action against 
 the grantee in such conveyance to subject 
 the property to the payment of the debt is 
 not usual : Oould v. Hurto, 61-45. 
 
 181. A judgment creditor, by garnishing 
 the mortgagee, may reach his debtor's prop- 
 erty under a fraudulent mortgage, whether 
 it be fraudulent on its face or shown to be so 
 by evidence aliunde: Brainard v. Van 
 Kuran, 33-361. 
 
 182. Liability of grantee for interest: 
 Where a conveyance is set aside as fraudu- 
 lent, it appearing that the grantee has dis- 
 posed of the property and appropriated it to 
 his own use, he may be treated as having 
 wrongfully received and illegally held it, and 
 interest should be allowed as against him 
 from the time of receiving such proceeds. 
 But if he has acted without fraud or collu- 
 sion, and has been restrained by the fact that 
 the fund was in the custody of the law from 
 paying it over, he will not be liable for inter- 
 est : Wilson v. Sorr, 15-189. 
 
 183. In an action to set aside a fraudulent 
 conveyance and subject the property to pay- 
 ment of plaintiff's judgment, the court may 
 not only decree that the property be subject 
 to such judgment, but may order the sale of 
 the property to satisfy it and the issuance of 
 a special execution therefor, and the fact 
 that the defendant is thus compelled to pay 
 interest upon interest on the judgment until 
 satisfied will not render the decree improper : 
 Searing v. Berry, 58-30. 
 
 184. Parties: In an action to set aside a 
 conveyance by a person deceased as having 
 been made in fraud of creditors, his heirs aie 
 neither necessary nor proper parties. They 
 are concluded by the conveyance from as- 
 serting any interest in the property : Harlin 
 V. Stevenson, 30-371. 
 
 185. In such an action the grantor is a 
 proper but not a necessary party : Potter v. 
 Phillips, 44-353. 
 
 186. Following property into iiaiiils of 
 purchaser: The creditor may pursue prop- 
 erty of a fraudulent debtor or the proceeds 
 thereof, wherever it can be found, into the 
 hands of a purchaser with notice, but it is 
 questionable whether in an action at law a 
 judgment creditor can, under his levy, hold 
 property the possession and title of which 
 
804 
 
 FEAUDULENT CONVEYANCES, III. 
 
 Parties against whom relief may be granted. 
 
 was never in the debtor but has been pro- 
 cured with the proceeds of the property 
 fraudulently conveyed: Rufledge v. Evans, 
 11-387. 
 
 187. In such case the title and right of pos- 
 session of the property fraudulently conveyed 
 being in the grantee, the property obtained 
 in exchange therefor vests in him, and the 
 debtor has no interest in such property which 
 can be levied upon arid sold : Ibid. 
 
 188. Subsequent purchasers: The statute 
 of 27th Elizabeth, designed to protect subse- 
 quent good faith purchasers of real property 
 as against fraudulent or collusive transfers, 
 has never been re-enacted in this state, but, 
 as it antedates the settlement of our country, 
 it is a part of our unwritten law : Oardner v. 
 Cole, 21-205 ; Wright v. Howell, 35-288. 
 
 1 89. A conveyance originating in a fraud- 
 ulent purpose and without consideration of 
 value, the grantor remaining in possession 
 and claiming ownership, is void as to a sub- 
 Sequent purchaser from such grantor, who 
 buys without actual notice of the prior deed 
 and pays value : Oardner v. Cole, 21-205. 
 
 190. The constructive notice arising from 
 the record of a deed which is actually fraud- 
 ulent, the grantor remaining in possession, 
 claiming and selling the property as his own 
 to a purchaser for value, without actual 
 notice, does not prevent sucli subsequent 
 purchaser from avoiding the prior deed, 
 which would other.wise work a fraud upon 
 him: IKd. 
 
 191. In the construction of the statute 
 of 27th Elizabeth, the American courts 
 have very generally concurred in holding 
 that, not being bound to do so, they would 
 not follow the English rule that a subse- 
 quent purchaser with notice may avoid a 
 prior voluntary conveyance made in good 
 faith, as, for example, to a wife or children, 
 and under circumstances repelling the idea 
 of fraud : Ihid. 
 
 192. A good faith purchaser for value from 
 the grantor, in a fraudulent conveyance, will 
 be protected as against the grantee therein, 
 even though such purchaser had knowledge 
 of such fraudulent conveyance: Hurley v. 
 Osier, 44-642. 
 
 193. In an equitable action to quiet title 
 to real property, a defendant who claims 
 title through a deed made by the holder of 
 
 the legal title for a fraudulent purpose, with- 
 out consideration, and after notice of the levy 
 of an attachment on the premises by the 
 plaintiff, cannot dispute plaintiff's title: Gree- 
 ley V. Sample, 22-338. • 
 
 1 94. A grantee, by trust deed, of a portion 
 of lands fraudulently conveyed to the grantor, 
 is not estopped afterwards from setting up 
 the fraud in the conveyance to his grantor, 
 if there is no showing that he had full knowl- 
 edge of the fraud at the time he took his con- 
 veyance : Baldwin v. Tuttle, 23-66. 
 
 195. Action to set aside a fraudulent con- 
 veyance may be maintained against the pur- 
 chaser of the property with knowledge of all 
 the facts : Cooley v. Brovm, 30-470. 
 
 190. It is now the settled American doc- 
 trine that a bona fide purchaser for a valu- 
 able consideration is protected under the 
 statutes of the 13th and 27th Elizabeth, as 
 adopted in this country, whether he pur- 
 chases from a fraudulent grantor or a fraud- 
 ulent grantee, and that there is no difference 
 in this respect between a deed to defraud 
 subsequent creditors and one to defraud sub- 
 sequent purchasers : Wright v. Howell, 35- 
 288. 
 
 197. Therefore, subject to the rights of 
 creditors of the fraudulent grantor, a bona 
 fide purchaser from the fraudulent grantee 
 takes subject to the liens and judgments ex- 
 isting against such grantee : Ihid. 
 
 198. An innocent purchaser from the 
 grantee in a fraudulent conveyance is not 
 affected by a sheriff's sale of the property 
 under a judgment against the grantor: 
 Gardner v. Jaques, 42-577. 
 
 199. Such a purchaser also takes th3 prop- 
 erty free from the lien of an attachment in a 
 suit against the fraudulent gi-antor : Eldred 
 V. Drake, 48-569. 
 
 200. A bona fide purchaser for value of 
 lands from the wife holding the legal title, 
 having neither actual nor constructive no- 
 tice of fraud in the conveyance of the same 
 to her from her husband, or of the levy there- 
 on of an attachment in a suit against the hus- 
 band alone, will hold the property against 
 creditors of the husband, even though the 
 conveyance to the wife was for a fraudulent 
 purpose : Bailey v. McGregor, 46-667. 
 
 201. As between the grantee in a fraudu- 
 lent conveyance and a purchaser from the 
 
FEAUDULENT CONVEYANCES, IV. 
 
 805 
 
 Evidence ; burden of proof. 
 
 grantor with notice of such fraud, evidence 
 of the fraudulent character of the transaction 
 and of the contract between gi-antor and 
 such subsequent purchaser is admissible: 
 Hurley v. Osier, 44-642. 
 
 202. An injunction may be maintained 
 against the grantee in a fraudulent convey- 
 ance to prevent alienation of the property to 
 an innocent purchaser until the determina- 
 tion of an attachment suit in which the prop- 
 erty is attached as belonging to the grantor : 
 Joseph V. McGill, 52-127. 
 
 203. One who takes a mortgage to secure 
 an antecedent debt without extension of 
 time or other consideration, is not a hona fide 
 purchaser: Flannigan v, Althouse, 56-513. 
 
 lY. Evidence ; bueden of peoof. 
 
 204. Burden of proving fraud : The bur- 
 den of proving fraud is upon the party al- 
 leging the conveyance to be fraudulent: 
 Wright v. Wheeler, 14r-8 ; Wolf v. Chandler, 
 58-569 ; Adams v. Ryan, 61-733 ; Drummond 
 V. Cause, 39-442; Allen v. Wegstein, 69-598. 
 
 205. The fact that an instrument which is a 
 deed in form is intended as a mortgage does 
 not change the burden of proof as to fraud : 
 Fifield V. Gaston, 12-218. 
 
 206. K a fraudulent grantee has disposed 
 of part of the property conveyed, and has 
 bought other property which he has mingled 
 with that fraudulently conveyed, the burden 
 of proof is upon him to distinguish between 
 the property so mingled, and to show that 
 property levied upon is not part of that re- 
 ceived by him under the fraudulent convey- 
 ance : French v. Reel, 61-143. 
 
 207. Evidence of fraud: The burden of 
 proving fraud being upon the plaintiff, he 
 cannot recover in the absence of evidence 
 thereof: Minneapolis Mill Co. v. Jamison, 63- 
 506. 
 
 208. Fraud never will be imputed when 
 the facts upon which it is predicated are con- 
 sistent with honesty and purity of intention: 
 Lyman v. Cessford, 15-229; Drummond v. 
 Come, 39-442; Kellogg v. Aherin, 48-299; 
 Sunberg v. Bahcock, 66-515. 
 
 209. A creditor attacking a deed on the 
 ground of fraud should only be allowed to di- 
 vest the grantee of the legal title thereby 
 conveyed, upon testimony which is clear, 
 
 distinct and satisfactory: Fifield v. Oaston, 
 12-218 ; Ray v. Teabout, 65-157. 
 
 210. To establish fraud in a conveyance, it 
 is not necessary that it be proven beyond a 
 reasonable doubt : Lillie v. McMillan, 53-463. 
 
 Further as to evidence of Featjd, see that 
 title, §g 24-35. 
 
 211. Other transactions, ndmissions, etc.: 
 Fraud cannot always be shown by direct evi- 
 dence, but is usually proved by circum- 
 stances ; and where a fraudulent conveyance 
 with knowledge of the purchaser is sought to 
 be established, the business transactions of 
 the parties and the declarations of vendor 
 and the knowledge of vendee of such prac- 
 tices and purposes may be shown : Craig v. 
 Fowler, 59-200. 
 
 212. But while knowledge of the fraudu- 
 lent' character of the particular transaction 
 involved will be inferred from circumstances 
 which are sufficient to raise inquiry, that 
 rule cannot be extended so as to impute 
 knowledge on the part of the vendee of fraud 
 in other transactions not directly involved so 
 as to put vendee on inquiry as to the transac- 
 tion in question: Ibid.; Clark v. Reiniger, 
 66-507. 
 
 213. A transaction claimed to be fraudu- 
 lent, taking place prior to that in question, 
 cannot be shown for the purpose of estab- 
 lishing fraud on the part of one not a party 
 thereto : Hardy v. Moore, 62-65. 
 
 2 1 4. Where two transactions are claimed 
 to be fraudulent, only one of which is being 
 controverted, it must be shown that they are 
 so connected as to evince a common purpose, 
 befoi-e the uncontroverted transaction can 
 be admitted in evidence for the purpose of 
 establishing fraud in the other : Ibid. 
 
 215. Acts of persons other than those en- 
 gaged in the alleged fraudulent transaction 
 cannot be considered in determining the 
 fraudulent intent : Biccby v. Carshaddon, 63- 
 164. 
 
 216. Neither should subsequent acts and 
 language of one party to the transaction of 
 which the other party had knowledge be 
 received for the purpose of determining 
 whether the sale was fraudulent or not on 
 the part of the latter : Ibid. 
 
 217. After the transfer is consummated, 
 the debtor becomes a stranger to the title, and 
 his acts and declarations are not binding upon 
 
806 
 
 FRAUDULENT CONVEYANCES, IV. 
 
 Evidence ; burden of proof. 
 
 the grantee any more than are those of a 
 stranger to the transaction, and declarations 
 and admissions by him are not receivable in an 
 action to set aside the conveyance : Bixby v. 
 CarsJcaddon, 70 . 
 
 218. Prior conversations and fraudulent 
 acts of the debtor are not admissible to show 
 the maZa.^des of the transaction claimed to 
 be fraudulent unless there is some connection 
 between the two transactions : Ibid. 
 
 219. Evidence of declarations of the 
 grantor of an intention to defraud creditors 
 is not admissible : Benson v. IJundy, 52-265. 
 
 220. Where the same conveyance covers 
 personalty and realty, evidence tending to 
 show that as to the realty the conveyance 
 was not fraudulent is admissible in an action 
 in which its validity as to the personalty is 
 in question : Wilson v. Hillhouse, 14^199. 
 
 221. The conversations and admissions of 
 the grantor before the execution of the con- 
 veyance claimed to be fraudulent, tending to 
 show an indebtedness by him to the grantee, 
 are admissible to prove that the conveyance 
 was not fraudulent: Moss v. Bearing, 45- 
 530. 
 
 222. A jiidgraeiit rendered against the 
 fraudulent creditor may be pleaded as con- 
 clusive against the grantee, but an allowance 
 of a claim against the estate of the grantor 
 is not competent evidence against the grantee : 
 Willett V. Main, 65-675. 
 
 223. Advice of counsel: Where the ques- 
 tion in issue is whether the acquisition of 
 personal property is fraudulent or not, the 
 advice of counsel before the contemplated 
 action of the parties is not receivable in evi- 
 dence : Hanna v. Hawks, 31-146. 
 
 224. Facts Indicating fraud: If goods are 
 sold on long and unusual time, and the notes 
 given therefor aie of little or no value, or of 
 less value than they purport to be, these cir- 
 cumstances are to be considered in deter- 
 mining the good faith of the transaction: 
 Spaulding v. Adams, 63-437. 
 
 225. The intent of the grantor to apply the 
 proceeds of the sale to the payment of his 
 debts is not conclusive that the sale was not 
 made with fraudulent intent : Ibid. 
 
 226. Possession of realty by the vendor 
 thereof after sale is not, per se, either con- 
 clusive or presumptive evidence of fraud in 
 such sale, although it may properly be con- 
 
 sidered in connection with other circum- 
 stances in determining whether there was 
 fraud in fact : Suiter v. Turner, 10-517. 
 
 227. The fact that the deed is delivered by 
 the grantor to the recorder for record may 
 tend to show fraud in the transaction; but 
 such fact alone does not, as a matter of law, 
 make the deed fraudulent and void, nor will 
 it sustain a verdict of the jury to that effect : 
 Ward V. Wehman, 27-279. 
 
 228. The fact that all of the property of 
 one charged with a fraudulent sale, which 
 was liable to execution, was conveyed by a 
 naortgage about the time of the sale, and that 
 the mortgage was executed to one whose 
 notes for an amount greater than the consid- 
 eration therein named had been given, but 
 three or four days before, as a part considera- 
 tion for the goods which were alleged to have 
 been fraudulently sold, and which were still 
 held by the party to whom the notes were 
 given, may be shown in evidence as bearing 
 upon the intent of the party charged with 
 bad faith : Price v. Mahoney, 2^583. 
 
 229. Evidence in a particular case, held not 
 to show that the execution of a mortgage by 
 the debtor on his property, and a foreclosure 
 thereof and sale of the property thereunder, 
 was with the purpose of defrauding his cred- 
 itors : Johnson v. Pennell, 67-669. 
 
 230. Inadequacy of consideration is ma- 
 terial in ascertaining whether there was 
 fraudulent intent : Hunt v. Hoover, 34^77. 
 
 231. If the price paid by the purchaser of 
 goods is grossly inadequate, that circum- 
 stance should be considered in determining 
 whether the transaction was fraudulent, and 
 its weight as evidence of fraud may be af- 
 fected by other circumstances of the transac- 
 tion. But if the purchaser bought the prop- 
 erty with an honest purpose and intent, his 
 right of title wiU not be defeated by the in- 
 adequacy of the price paid: Bidder v. Ken- 
 dall, 66-703. 
 
 232. Where the purchase of the property 
 was at the rate of twenty-six doUai-s per acre, 
 and it appeared that it was worth thirty dol- 
 lars, held, that there was no such inadequacy 
 of price as to indicate fraud: Rrme v. Jame- 
 son, 62-52. 
 
 233. In a particular case, held, that a sale 
 by the debtor of his stock of goods to a mort- 
 gagor was not for so inadequate a considera- 
 
FRAUDULENT CONVEYANCES, IV — GARNISHMENT, I. 
 
 SOT 
 
 Evidence; burden of proof. — How garnishment effected ; notice. 
 
 tion as to prove it fraudulent : Warfield v. 
 Lynd, 67-732. 
 
 234-. In a particular case, held, that the 
 consideration was not so inadequate as to be 
 a badge of fraud : Day v. Cole, 44-452. 
 
 235. Where it was claimed that a con- 
 veyance was in good faith in payment of a 
 p^-ior indebtedness, and it appeared that the 
 grantor had been allowed to remain in pos- 
 session of the premises without payment of 
 or agreement to pay rent, and that the price 
 claimed to have been received by him was 
 grossly inadequate, and that the grantee had 
 made no examination of the title, although 
 the grantor was insolvent, and that grantee 
 admitted that the deed to him was not in- 
 tended to deprive the grantor of all interest 
 in the property, lield, that the conveyance 
 was fraudulent : Smith v. Grimes, 43-356. 
 
 236. Mortgragre for more than due: The 
 making of a mortgage for a sum larger than 
 the amount owing and purporting to be se- 
 cured tends, in the absence of proof, to show 
 an unfair or fraudulent purpose, and such 
 circumstance is proper to be considered as 
 one of the badges of fraud: Davenport v. 
 Cummings, 15-219. 
 
 237. The fact that the amount named in 
 the mortgage is greater than that actually 
 due and that the grantor is at the time in- 
 solvent or contemplating insolvency, and that 
 the intention of the parties is that the prop- 
 erty shall be held by the mortgagee, not to 
 secure a debt, but to be out of the reach of 
 attachment or execution in favor of other 
 creditors, is sufficient to render the instru- 
 ment fraudulent : Wilson v. Horr, 15-489. 
 
 238. The fact that a mortgage is given for 
 a sum larger than the legitimate indebted- 
 ness is, in the absence of explanatory evi- 
 dence, a badge of fraud, and may, in and of 
 itself, be sufBcient to show a fraudulent pur- 
 pose: Taylor V. Wendling, 66-562. 
 
 23S>. The burden of proving that a mort- 
 gage made in contemplation of insolvency, 
 for an amount in excess of the debt which it 
 purports to be given to secure, was given in 
 good faith for an honest purpose, and of ex- 
 plaining why it was given for an amount in 
 excess of the indebtedness, is upon the mort- 
 gagee : Lombard v. Dows, 66-243. 
 
 240. The fact that a mortgage giv^n by an 
 insolvent to secure an antecedent debt for 
 
 more than is due, although the fact of insolv- 
 ency is known to the mortgagor, while a cir- 
 cumstance strongly indicative of fraud, is not 
 conclusive, and is susceptible of explanation, 
 at least where the fact that the mortgage ia 
 for an amount in excess of the indebtedness 
 is not known to the mortgagee: Wood v. 
 Scott, 55-114. 
 
 241. Although in case of a mortgage for 
 more than is due, given by one who is insolv- 
 ent, it is incumbent upon the mortgagee to 
 show that it was executed in good faith and for 
 an honest purpose, and satisfactorily explain 
 why the mortgage was taken for an amount 
 greater than due, yet held, in a particular 
 case, that such explanation was satisfactorily 
 made : Carson v. Byers, 67-608. 
 
 GARNISHMENT. 
 
 I. How effected; notice. 
 II. Who subject to: what property 
 
 REACHED BY. 
 
 III. Answer op garnishee; subsequent 
 
 PROCEEDINGS; JUDGMENT; APPEAL. 
 I. How EFFECTED ; NOTICE. 
 
 1. Attachment neeessarj": Garnishment 
 is simply a mode of attachment : Woodward 
 V. Adams, 9-474. 
 
 2. It is only where the siieriflE has a writ 
 of attachment that he is authorized to gar- 
 nish: Vanfossen V. Anderson, 8-251. 
 
 Garnishment is, however, also an incident 
 of execution, and an officer having a writ of 
 execution may issue a notice of garnishment, 
 and the proceedings thereunder will be the 
 same as in case of attachment : Code, §§ 8051, 
 3052. 
 
 3. How shown: The proper evidence of 
 the fact of garnishment is the officer's return 
 on the writ of attachment. Such fact can- 
 not be proved by parol evidence of the officer 
 nor his indorsement of service upon the no- 
 tice to the garnishee: Sock v. Singmaster, 
 62-511. 
 
 4. When the fact of garnishment is put in 
 issue, the proper evidence of it is the same as 
 the evidence of any levy, to wit, the return 
 thereof. The fact that the garnishee appears 
 and answers the interrogatories does not pre- 
 clude him from afterwards putting in issue 
 
808 
 
 GARNISHMENT, I, H. 
 
 How effected ; notice. — Who subject to. 
 
 the fact of garnishment: McDonald v. Moore, 
 65-171. 
 
 5. Jurisdiction: Garnishment being in the 
 nature of a proceeding in rem, the thing 
 against which tlie proceeding is directed 
 must be brought within the jurisdiction of 
 the court by a virtual seizure thereof, and 
 the court does not acquire jurisdiction except 
 by the proper issuance of the writ of attach- 
 ment and notice of garnishment thereunder : 
 Ibid. 
 
 6. If the proceeding is by publication and 
 it is sought to effect the attachment by 
 service of notice of garnishment, and no 
 debt is due at the time so as to be actually 
 reached by such garnishment, the court ac- 
 quires no jurisdiction whatever in the case, 
 and cannot acquire jurisdiction by reason of 
 a debt afterwards arising from the party 
 garnished to the defendant : Morris v. Union 
 PacifleB. Co., 56-135. 
 
 7. Notice : Though the notice to a garnishee 
 to appear and answer specifies the wrong 
 court, yet, if answers are taken by the sheriff 
 under execution from the proper court and 
 such answers are duly returned, that court 
 acquires jurisdiction to render judgment 
 against the gai-nishee: Fanning v. Minne- 
 sota M. Co., 37-379. 
 
 8. A notice to a garnishee requiring him 
 to appear on any other day than the first day 
 of the next term of the court is void, and 
 confers no jurisdiction over such garnishee : 
 Padden v. Moore, 58-703. 
 
 9. Where a garnishee seeks in equity to 
 have a judgment against him set aside on the 
 ground that the notice was not sufficient to 
 give the court jurisdiction, the burden is not 
 upon him to show that the judgment is also 
 erroneous, but is upon the adverse party 
 who insists that it is just. The garnishee is 
 not presumed to be indebted : Ibid. 
 
 10. The garnishment process may be served 
 before service of notice of action by attach- 
 ment: Phillips V. Oermon, 43-101. 
 
 11. Notice of tlie garnishment need not be 
 given to the defendant in the principal ac- 
 tion: Ibid. 
 
 12. But, by a subsequent statute, 18 G. A., 
 chapter 58, McClain's Ann. Stat., § 2975, no- 
 tice to the defendant in the principal action 
 is required before the rendition of judgment 
 against the garnishee, and such notice should 
 
 be served ten days before the trial of the 
 issue, and in case there is no issue, ten days 
 before judgment is rendered against the gar- 
 nishee: Williams v. Williams, 61-612. 
 
 13. This notice is essential to the jurisdic- 
 tion of the court over the subject-matter in 
 controversy, and if the garnishee fails to as- 
 sert his right to be discharged on account of 
 such want of notice, but submits the case 
 without making that question of record, it is 
 proper for the court to set aside the trial and 
 submission as premature and continue the 
 cause for such action as either of the parties 
 may take : Ibid. 
 
 14. Service of original notice of the action 
 itself does not ruake this service of notice of 
 the garnishment proceedings unnecessary: 
 Wise V. Rothschild, 67-84. 
 
 15. Where it is sought to attach the sum 
 due by a railway company to a land-owner 
 for right of way taken by the company, the 
 notice of garnishment should be served on 
 the company and not upon the agent of the 
 company individually, although such agent 
 is authorized to procure the right of way and 
 is doing so at his own risk for a gross sum : 
 Buchatian County Bank v. Cedar Rapids, I. 
 F. & N. W. R. Co., 62^94. 
 
 II. Who subject to ; what peopeety 
 
 BEACHED BY. 
 
 16. Exemption from garnishment: The 
 
 exception of municipal corporations from lia- 
 bility to garnishment (see infra, §§ 19-22) is 
 the only exemption from such liability : Cald- 
 well V. Stewart, 80-379. 
 
 17. Corporations generally may be gar- 
 nished. So held of a railroad company : Tay- 
 lor V. Burlington & M. R. R. Co., 5-114. 
 
 18. Under statutory provisions which did 
 not exempt a municipal corporation from 
 garnishment, held, that a corporation, 
 whether public or private, might he gar- 
 nished, and that if there was any exemption 
 of a municipal corporation, such an exemp- 
 tion was a privilege which it alone could as- 
 sert, and which could not be interposed by 
 the debtor: Wales v. Muscatine, 4-302; 
 Burton v. District T'p, 11-166. 
 
 19. Municipal corporations: The statu- 
 tory provision (Code, § 2976) that a munici- 
 pal corporation shall not be subject to gar- 
 
GARNISHMENT, II. 
 
 809 
 
 Who subject to ; what property reached by. 
 
 nishment applies to all cases and without 
 condition, and is not dependent upon whether 
 such exemption is necessary to protect them 
 against embarrassment in the execution of 
 their political, civil or corporate duties : JenTcs 
 V. Osceola T'p, 45-554. 
 
 20. Waiyer: The municipal corporation 
 itself may waive the exemption in its favor ; 
 and where the objection was not raised until 
 upon a second trial, when the court first in- 
 structed in regard thereto, Jteld, that the 
 right to the exemption had been waived and 
 could not then be raised : Clapp v. Walker, 
 25-315. 
 
 The right to insist upon the exemption in 
 favor of a municipal corporation cannot be 
 exercised by a creditor of the corporation : 
 See siipra, § 18. 
 
 21. Where a municipal corporation at the 
 same term at which its answer in the gar- 
 nishment proceeding, made before a com- 
 missioner, was reported to the court, raised 
 the question of its right to exemption under 
 the law, held, that such claim was in time 
 and not waived : Jenks v. Osceola T'p, 45-554. 
 
 22. The fact that a county brings an action 
 to determine to whom it shall pay a sum of 
 money due by it to a contractor, and makes a 
 creditor who has attempted to garnish the 
 county for its indebtedness to him a party to 
 the action, does not constitute a waiver of 
 exemption from garnishment: Des Moines 
 County V. Hinkley, 62-637. 
 
 23. Property in the hands of an officer 
 of the court maybe attached as provided by 
 statute (Code, § 2977) by leaving with the 
 clerk a copy of the writ with notice specify- 
 ing the fund : Patterson v. Pratt, 19-358. 
 
 24. Where money of a debtor was taken 
 under a search warrant sworn out by a third 
 person, and was in the hands of a, justice of 
 the peace to whom the search waiTant was 
 returned, held, that a creditor of the prisoner 
 might in this manner attach such money for 
 his debt : Ibid. 
 
 25. So an oflScer who in making an ar- 
 rest has searched the person of the prisoner 
 and taken therefrom property, such as a 
 watch, money, etc., may be garnished for such 
 property by a creditor of the prisoner, it not 
 appearing that the arrest was collusively 
 made or with any fraudulent purpose : Beif- 
 snyder v. Lee, 44-101. 
 
 2G. But property taken by an ofi&cer from 
 the person of a prisoner which is not con- 
 nected with the crime is to be deemed in the 
 personal possession of the prisoner and can- 
 not be attached in the officer's hands : Com- 
 mercial Exchange Bank v. McLeod, 65-665. 
 
 27. Property in the hands of a receiver is 
 in the custody of the law, and therefore not 
 liable to seizure on execution: Martin v. 
 Davis, 81-535. 
 
 28. A sheriff may, at the suit of the cred- 
 itor of the mortgagor, be garnished for any 
 balance of proceeds of the sale of property 
 under a chattel mortgage, put in his hands 
 for collection, remaining after satisfying the 
 mortgage: Hoffman v. Wetherell, 43-89. 
 
 29. And i^ such case, held, that a garnish- 
 ment proceeding against the mortgagee of 
 the property would not bind the balance in 
 the hands of the officer: Ibid. 
 
 30. Property in hands of agent: Where 
 the answer of a garnishee showed that he was 
 auditor and cashier of the corporation de- 
 fendant in the principal action, and had 
 charge of the accounts, receipted for cash re- 
 mitted by its agents, made collections and 
 disposed of the cash from time to time as 
 directed by the general manager of the cor- 
 poration, and that he had, at the time of 
 garnishment, certain money belonging to the 
 corporation kept in the safe provided by it, 
 to which he alone had a key, held, that it 
 was his duty as garnishee to retain the money 
 on hand subject to the garnishment, and he 
 could not escape liability on the ground that 
 he did not have independent control of the 
 money but was under obligation to dispose 
 of it as directed by his superiors : First Nat. 
 Bank v. Davenport & St. P. R. Co., 45-120. 
 
 31. Though the answer of the garnishee 
 discloses that it was his duty to pay out the 
 money in his possession on the order of 
 another, the process of garnishment imposes 
 upon him a paramount duty to retain it in 
 his possession : Ibid. 
 
 32. Money held for third person: Where, 
 by agreement between a railway company 
 and a contractor, it was provided that the 
 former might reserve out of money due the 
 latter such amount as might become due by 
 the contractor to laborers, and superintend 
 the payment of the same, held, that the 
 money in the hands of the railway company 
 
810 
 
 Gx\ENISHMENT, II. 
 
 Who subject to ; what property reached by. 
 
 thus reserved to be paid over to laborers was 
 not subject to garnishment for the debts of 
 the contractor: Taylor v. Burlington & M. 
 R. B. Co., 5-114. 
 
 33. An executor cannot be held liable as 
 garnishee in his individual capacity for an 
 indebtedness due as executor: Clark v. 
 Shrader, 41-491. 
 
 34. Equitable custodian: A garnishment 
 will be vaUd as against a fund of which the 
 garnishee is the equitable custodian, although 
 it is not within his possession : Des Moines 
 County V. Hinhley, 63-637. 
 
 35. What rights, indebtedness, etc., 
 reached by garnishraeut: The garnishee 
 pi'ocess only reaches the right which the de- 
 fendant actually has at the time; in the prop- 
 erty thereby sought to be attached : Thomas 
 V. HiUJwuse, 17-67. 
 
 36. The liability of a garnisliee is measured 
 by his obligation to the execution defendant 
 at the time of service of garnishment : Hunt- 
 ington V. Risdon, 43-517. 
 
 37. The garnishee cannot be held for a 
 debt which had no existence at the time of 
 the garnishment but was subsequently con- 
 tracted: Thomas V. Gibbons, 61-50. 
 
 38. It must be made to appear that the 
 garnishee was indebted to defendant at the 
 time of service of notice. Wliere the serv- 
 ice of notice and the assignment by the 
 debtor of his claim against the garnishee ap- 
 peared to be of the same date, held, that the 
 garnishee would not be liable without further 
 proof that the service was prior to the assign- 
 ment : Weire v. Davenport, 11-49. 
 
 39. Judgment should not be rendered 
 against the garnishee where it appears that 
 his indebtedness to the principal debtor is 
 only conditional and it is not shown that the 
 condition has been fulfilled: Williams v. 
 Young, 46-140. 
 
 40. Where the claim of a land-owner 
 against a railway company for damages for 
 right of way was pending in the circuit court 
 upon a claim for a greater amount of dam- 
 ages than allowed by the commissioners, held, 
 that the garnishment of the railway company 
 would hold any amount afterwards found 
 due or which the company should agree to 
 pay in satisfaction of the claim: Buchanan 
 County Bank v. Cedar Rapids, I. F. & N. W. 
 R. Co., 62-494. 
 
 41. Garnishee should not be held liable on 
 a judgment where he has a cause of action 
 which he might bring against the judgment 
 creditor greater in amount than the amount 
 of the judgment, even though such cause of 
 action might have been interposed as a de- 
 fense in the proceeding in which the judg- 
 ment was recovered: Fairfield v. McNany, 
 37-75. 
 
 42. If a third person is garnished, in an 
 action against one of two persons, for notes 
 in his hands belonging to a partnership, and 
 it appears that the partners are entitled to 
 equal shares therein, and no claim of fraud 
 is set up by partnership creditors, judgment 
 may be rendered against him for the interest 
 of defendant partner remaining in his hands: 
 Harlan v. Moriarty, 2 G. Gr., 486; Robinson 
 V. Moriarty, 3 G. Gr., 497. 
 
 43. Where the purchaser of property was 
 advised, after making the contract of pur- 
 chase, that the property belonged to another, 
 and gave his note to such other for the bal- 
 ance of the purchase price, and was subse- 
 quently garnished as the debtor of the person 
 with whom the contract was made, held, 
 that he would not be protected in making 
 payment to the payee of the note, with 
 knowledge that the indebtedness was act- 
 ually due to the party from whom the pur- 
 chase was made : Kesler v. St. John, 33-565. 
 
 44. The fact that an innkeeper has a lien 
 on the baggage of his guest for his charges 
 will not prevent the guest from being gar- 
 nished as the debtor of the innkeeper. The 
 guest could, by paying over to the sheriff 
 the amount due, release his baggage from 
 the lien : Caldwell v. Stewart, 30-379. 
 
 45. Where a conveyance of property from 
 grantor to grantee is rescinded by the action 
 of the grantor after a conveyance has been 
 made to a subsequent grantee, the original 
 grantor is not a debtor of his first grantee 
 and subject to garnishment as to the consid- 
 eration which is to be refunded, but his lia- 
 bility inures to the benefit of the subsequent 
 grantee : Deere v. Young, 39-588. 
 
 46. Capital stock : At common law, stock 
 in an incorporated company could not be 
 reached under an attachment nor a valid 
 transfer thereof prevented. The attaching 
 creditor must follow the mode pointed out 
 by statute (Code, § 3967), which requires no- 
 
GARNISHMENT, U. 
 
 811 
 
 Who subject to ; what property reached by. 
 
 tioe to the president or other officer that the 
 stock has been attached. Garnishment of 
 the secretary as an individual will not ac- 
 complish the object, even though he under- 
 stands that the attachment "bf the stock is 
 intended : Mooar v. Walker, 46-164. 
 
 47. Interest of mortgagee : The interest of 
 the mortgagee of real property cannot be 
 seized under attachment by levy on the land. 
 The method of procedure is by garnishment : 
 Courtney v. Carr, 6-238. 
 
 48. A landlord's right to a share of the 
 crops grown on the leased premises can only 
 be reached by garnishment of the tenant: 
 Howard County v. Kyte, 69-307. 
 
 49. Interest of mortgagee of chattels: 
 A mortgagee of personal property not in his 
 possession is not liable on garnishment for 
 such property, or the amount by which the 
 value thereof exceeds his claim: Curtis v. 
 Raymond, 29-53; First Nat. Bank v. Perry, 
 29-266. 
 
 50. But the mortgagee in possession may 
 be garnished for the surplus remaining in 
 his hands: Doanev. Oarretson, 84-351. 
 
 51. Unconditional judgment cannot be ren- 
 dered against a chattel mortgagee, as gar- 
 nishee, for the excess of the value of the mort- 
 gaged property over his debt, where he is 
 not in actual possession of the property by 
 virtue of his mortgage : Fountain v. Smith, 
 70 . 
 
 52. The equity of redemption of the mort- 
 gagor of personal property after condition 
 broken is subject to sale or transfer as other 
 property and passes under a general assign- 
 ment. After such general assignment the 
 mortgagee is not subject to garnishment in a 
 suit against the mortgagor : Gimble v. Fergu- 
 son, 58-414. 
 
 53. Where it was agreed by and between 
 the mortgagor and attaching creditors and 
 the mortgagee, that the property should be 
 sold in bulk and the proceeds applied upon 
 the attachment, held, that the proceeding 
 operated as a transfer of the equity 6i re- 
 demption of the mortgagor, and took priority 
 over a subsequent garnishment by a second 
 attaching creditor of the surplus in the sher- 
 iff's hands after the satisfaction of the first 
 mortgage: Phelps v. Winters, 59-561. 
 
 54. The mortgagee of a stock of merchan- 
 dise, yrhen garnished while in possession, may 
 
 discharge the landlord's lien for accrued rent 
 out of surplus left after satisfying his mort- 
 gage, without being liable under garnish- 
 ment for the amount thus applied : Doane v. 
 Garretson, 24^351. 
 
 55. Fraudulent mortgagees, who are gar- 
 nished by the njortgagor's creditors, must 
 retain the property or its proceeds, and if 
 they part with the same in payment of the 
 mortgagor's debts, they act at their peril: 
 Brainard v. Van Kuran, 22-261. 
 
 56. A person holding property under a bill 
 of sale to secure him for any liability as 
 surety may be garnished for the proceeds of 
 such property remaining after satisfying his 
 claim : Davis v. Wilson, 52-187. 
 
 57. Assignment: Where the creditor of 
 tlie garnishee has, by assignment, in any 
 form appropriated the property or indebted- 
 ness, and the assignment has been accepted 
 by the assignee, the garnishee cannot be held 
 liable : Smith v. Clarke, 9-241. 
 
 58. An equitable assignment will secure 
 the property against gai'nishraent for a debt 
 of the assignor, though no notice be given to 
 the party holding the property prior to the 
 attachment, if such notice is given in time 
 to enable the garnishee to bring it before the 
 court in time for judgment : Ibid. 
 
 59. The assignee of a non-negotiable debt 
 should give notice of the assignment to the 
 garnishee in time to enable him to show such 
 assignment in his answer, or at least before 
 judgment against him : Walters v. Washing- 
 ton Ins. Co., 1-404. 
 
 60. A garnishee who has notice of the as- 
 signment before answering and fails to set 
 up that fact by way of defense, and allows 
 judgment to go against him, cannot plead 
 such judgment against the assignee: Ibid.; 
 Dalhoff V. Coffman, 37-283. 
 
 61. The assignment of a debt will bo good 
 as against a garnishment of the debtor in a 
 proceeding against the original assignor, 
 though the claim is not taken by the assignee 
 as payment but only as collateral security: 
 Moore v. Louvey, 25-336. 
 
 62. The assignor of a judgment taking it 
 subject to garnishment of the judgment 
 debtor acquires no right as against the 
 plaintiff in the garnishment : Phillips v. Qer- 
 mon, 43-101. 
 
 63. A debtor having notice of the assign- 
 
812 
 
 GARNISHMENT, II. 
 
 Who subject to ; what property reached by. 
 
 ment of the debt before garnishment cannot 
 be held liable in an action against the as- 
 signor, even though, by peculiar statutory 
 provision (Code, § 2087, as it stood before 
 amendment), he might have been exonerated 
 by payment of the debt to the assignor, even 
 with notice of the assignment: Bailey v. 
 Union Pacific R. Co., 63-354. 
 
 64. Assig:nnieiit of negotiable or assign- 
 able paper: Under a statute (Rev., § 3311) 
 providing that the garnishee should not be 
 held liable on a debt due by negotiable or 
 assignable i paper, unless such paper was de- 
 livered or the garnishee completely exoner- 
 ated or indemnified for all hability thereon 
 after satisfaction of the judgment, held, that 
 a judgment on a mortgage lien could not be 
 rendered unless the mortgage was delivered 
 or the mortgagee exonerated: Tirmnons v. 
 Johnson, 15-33. 
 
 65. Held, also, that this statutoi-y provis- 
 ion was applicable to the case of negotiable 
 paper after maturity, and that the maker 
 thereof could not be held liable as garnishee 
 without exoneration or indemnity : Hughes v. 
 Monty, 24^499. 
 
 C6. But without reference to such statu- 
 tory provision, held, that the maker of a note 
 who was garnished after maturity thereof , 
 without notice or knowledge of any assign- 
 ment, might be held Uable as a debtor of the 
 payee of the note: McCoid v. Beatty, 13- 
 399. 
 
 67. Held, also, that this rule was applica- 
 ble where the assignment of the note past 
 due was made after service of the notice of 
 garnishee, but before the answer of the gar- 
 nishee, if the garnishee at the time of an- 
 swering had notice of such assignment, the 
 rights of the assignee being subordinate to 
 the garnishment : Stevens v. Pugh, 13-430. 
 
 68. These provisions as to indemnity in case 
 of negotiable paper may be taken advantage 
 of by the garnishee, but if waived by him 
 the failure to comply with them does not 
 affect the power of the court to render judg- 
 ment: McPhailv. Hyatt, 39-137. 
 
 69. But though the garnishee fails to de- 
 mand indemnity and allows judgment to go 
 against him, such judgment will be no de- 
 fense against a holder of the paper who 
 
 acquired it before the garnishment: Yoeivm 
 V. White, 36-388. 
 
 70. In the case of negotiable paper, the 
 court may order that plaintiff have judg- 
 ment when the provisions as to indemnity 
 are complied with. But such order will not 
 be a final judgment upon which execution 
 may issue : Seals v. Wright, 37-171. 
 
 71. Where the garnishee, after notice of 
 garnishment, paid a note, made to the de- 
 fendant or bearer, to the indorsee of such 
 note, held, that under the evidence as to 
 ownership introduced in the case, a judg- 
 ment in favor of garnishee was not so wholly 
 unsupported as that it should be reversed: 
 Kauffman v. Jacobs, 49-433. 
 
 72. Exempt earniuga: While a garnish- 
 ment of an employer for wages of his em- 
 ployee will hold not only wages due but such 
 as afterwards become due, yet, as the em- 
 ployee, if a married man, is entitled to have 
 ninety days' wages exempt (Code, § 3072), the 
 employer is not to be held liable to judgment 
 in such case, unless it appears that at the 
 time of garnishment, or some time subse- 
 quent thereto, he had more than ninety 
 days' wages in his hands: Davis v. Hum- 
 phrey, 83-137. 
 
 73. The burden rests upon defendant or 
 garnishee to show that an amount due to the 
 defendant in the principal action is exempt 
 as earnings, and unless that fact clearly ap- 
 pears, the debt will be held subject to gar- 
 nishment : Oakes v. Marquardt, 49-643. 
 
 74. The debtor cannot, in a garnishment 
 proceeding, appear and plead an exemption 
 under the laws of another state: Leiber v. 
 Union Paciflxi R. Co., 49-688. 
 
 75. A debt due to a non-resident for serv- 
 ices performed in another state may be 
 attached in an action in this state by 
 publication against such non-resident, by gar- 
 nishment of the debtor in this state, not- 
 withstanding any custom of the garnishee 
 to pay for such services in the state where 
 they are rendered : Mooney v. Union Pacific 
 R. Co., 60-846. 
 
 76. Exemption laws of another state are 
 not to be relied upon as a defense, either by 
 the garnishee or by the judgment debtor: 
 Broadstreet v. Clark, 65-670. 
 
 'The present statutory provision (Code, § 2990) refers only to negotiable, not to assignable, paper. 
 
GARNISHMENT, III. 
 
 813 
 
 Answer of gaxnishee ; subsequent proceedings ; judgment ; appeal. 
 
 77. A creditor cannot, by instituting a 
 garnishment proceeding in another state, 
 seize a debt due the debtor in this state, and 
 which would be here exempt from execu- 
 tion: Teager v. Landsley, 69-735; Hager v. 
 Adams, 70 
 
 III. Answer of garnishee; subse- 
 quent PEOCEEDINGS ; JUDGMENT ; 
 APPEAL. 
 
 78. Duty to appear; witness fees: If his 
 
 fees are not tendered, the garnishee may re- 
 fuse to attend, but will not be released from 
 his obUgation to retain any property belong- 
 ing to, or money due defendant, and his 
 attendance may be secured at a subsequent 
 term by proper summons and tender of fees : 
 Westphal v. 'Clark, 4a-371. 
 
 79. The power to compel the attendance of 
 a garnishee is not limited to seventy miles, as 
 is provided in case of witnesses : Ibid. 
 
 80. The non-payment of the fees of a gar- 
 nishee, if lawfully demanded, will excuse his 
 failure to testify, but if he appears without 
 prepayment of fees, he cannot then demand 
 mileage before testifying, and judgment may 
 be rendered against him for failure or refusal 
 to testify on account of such non-payment ; 
 Stockberger v. Lindsey, 65-471. 
 
 81. Appearance before commissioner: 
 Where a court appoints a commissioner to 
 take the answer of a garnishee, without fix- 
 ing a time or place for such answer, the gar- 
 nishee should not be adjudged in default for 
 failure to appear and answer unless notified 
 by the commissioner of the time and place 
 fixed for taking his answer : Thomas v. Hoff- 
 man, 62-125. 
 
 82. Answers taken byoiHcer: It is only 
 when the sheriff has a writ of attachment 
 that he is authorized to take answers as pro- 
 vided by statute: Vanfossen v. Anderson, 
 8-251. 
 
 83. A deputy sheriff may administer the 
 oath to the garnishee : Conable v. Hylton, 
 10-593. 
 
 84. Fur tlicr answer: Where the garnishee 
 is notified to appear and answer at a term of 
 court, the questions which are to be an- 
 swered by the garnishee need not be pro- 
 pounded or filed until he has appeared to 
 answer : Parmenter v. Childs, 12-32. 
 
 85. The plaintiff is not precluded, by the 
 fact that the garnishee makes answer to the 
 sheriff, from prosecuting the examination 
 further if he sees fit : Thompson v. Silvers, 
 59-670. 
 
 86. Refusal of garnishee to answer: 
 Where a garnishee refused to answer ques- 
 tions propounded before a referee appointed 
 to take such answers, and plaintiff, upon tlie 
 facts being reported by the referee, moved 
 for an order requiring her to answer at a 
 particular time, at which time she refused to 
 answer, and her refusal was sustained by the 
 court, held, upon appeal, that although the 
 plaintiff might have been entitled to judg- 
 ment by default against the garnishee for 
 refusal to answer questions propounded by 
 the referee, yet having obtained an order for 
 further examination he could not have judg- 
 ment against the garnishee for refusal to 
 answer, when the court sustained her objec- 
 tions, although in so doing the court erred : 
 Ibid. 
 
 87. Written interrogatories: It is within 
 the discretion of the court to require that 
 questions to be propounded to the garnishee 
 shall be reduced to writing and submitted to 
 the court before answer : Elwood v. Crowley, 
 64-68. 
 
 88. Answers of wife: A wife who is gar- 
 nished as the debtor of her husband is not 
 exempt from answering on the ground that 
 her answers would be testimony against her 
 husband. It is not to be regarded as against 
 her husband's interest that his property in 
 her hands is subjected to payment of his 
 debts : Thompson v. Silvers, 59-670. 
 
 89. Answers in person : The creditor has 
 the right to examine the garnishee person- 
 ally, and where the garnishee did not appear, 
 but filed a sworn answer, held, that such an- 
 swer was properly stricken from the files and 
 judgment rendered against him on default : 
 Penn v. Pelan, 53-535. 
 
 90. Answer of coi-poration: Where a cor- 
 poration aggregate is garnished it may an- 
 swer in writing through some officer or agent 
 duly authorized : Bailey v. Union Pacific P. 
 Co., 63-354. 
 
 91. Objections to questions: Where the 
 garnishee objects to the competency of a 
 question asked him, he should, after the 
 court has determined that the question is a 
 
814 
 
 GARNISHMENT, III. 
 
 Answer of garnishee ; Subsequent proceedings ; judgment ; appeal. 
 
 proper one, have an opportunity to respond 
 before being charged absolutely: Sawyer v. 
 Webb, 5-315. 
 
 92. Answer as evidence: The answer of 
 garnishee is competent evidence on the trial 
 of the issue as to his liability: Fairfield v. 
 McNany, 37-75. 
 
 93. The credit and weight to which the 
 answer of the garnishee is entitled Should be 
 left to the jury : Drake v. Buck, 35-472. 
 
 94. The garnishee's answer is not a plead- 
 ing in the case, but is in the nature of evi- 
 dence, and, therefore, is not a part of the rec- 
 ord unless made so bj' a bill of exceptions : 
 Brainard v. Simmons, 58-464. 
 
 95. "While the garnishee may be required 
 not only to answer with reference to his 
 liability, but to disclose what he knows with 
 reference to other persons who may have 
 property or credits of the debtor under their 
 control, such answer does not bind any one 
 but the one making it. Therefore, the answer 
 of a member of the firm, garnished individ- 
 ually, will not be binding upon the firm : 
 Bean v. Barney, 10-498. 
 
 96. The garnishee's answer is not compe- 
 tent evidence on an issue raised by an inter- 
 venor claiming the debt sought to be 
 reached by the garnishment : Easley v. Gibbs, 
 29-129. 
 
 97. Setting up defendant's exemptions: 
 A debtor who procures himself to be gar- 
 nished without the knowledge of his creditor, 
 for a debt the proceeds of which are exempt, 
 and does not set up such exemption, or notify 
 his creditor so that the latter may do so, is 
 guilty of fraud, and wiU not be released from 
 Uability by a judgment against him : Smith 
 V. Dickson, 58-444. 
 
 98. Whether a garnishee is required to set 
 up any defense that the debtor may have, as 
 that the property or debt is exempt, or 
 should notify the debtor of the fact of gar- 
 nishment, in order that the latter may set 
 up such defense, quaere: Moore v. Chicago, 
 R. I. & P. R. Co,., 43-885; Leiber v. Union 
 Pacific R. Co., 49-688. 
 
 99. An answer of the garnishee that he 
 was informed and believed that the defend- 
 ant was a married man living with his fam- 
 ily, held not suflBcient to show the right of 
 exemption, for the reason that it did not al- 
 lege such to be the fact, nor allege that he 
 
 was a resident of the state : Smith v. Chicago 
 & N. W. R. Co., 60-813. 
 
 100. Where the garnishee interposes an 
 objection that the indebtedness is exempt 
 and defendant has notice of the proceeding, 
 and judgment is nevertheless rendered 
 against garnishee, such judgment is conclu- 
 sive against defendant in any subsequent ac- 
 tion to recover the indebtedness. It is his 
 duty to set up the exemption and to appeal 
 from the judgment rendered, if erroneous: 
 Wigivallv. Union Coal, etc., Co., 37-129. 
 
 101. Defendant may set np exemptions: 
 The defendant in the principal action may 
 set up, by way of objection to a judgment 
 against the garnishee, that the indebtedness 
 is exempt from execution, or that the judg- 
 ment is satisfied, etc. But he cannot inter- 
 pose an objection which is personal to the 
 garnishee : Wales v. Muscatine, 4-302. 
 
 103. Setting np claims of assignee: An 
 assignee of non-negotiable paper must give 
 the maker notice of tie assignment, before 
 such maker is required to answer as gar- 
 nishee in a suit against the assignor, or at 
 least before judgment is rendered against 
 such garnisnee, or he will be ban-od by such 
 judgment: Walters v. Washington Ins. Co., 
 1-404; McCoid v. Beatty, 12-299. 
 
 103. If the paper is assigned after the gar- 
 nishment of the maker, he may be held lia- 
 ble, notwithstanding he knew of the assign- 
 ment before answering: Stevens v. Piigh, 
 12-430. 
 
 104. Up to final judgment against him the 
 garnishee may protect himself from liability 
 by showing the assignment of the debt to a 
 third person, and judgment in garnishment 
 will not bar an action against the garnishee 
 by such assignee if the garnishee had notice 
 of the assignment before final judgment: 
 McPhail V. Hyatt, 29-137. 
 
 105. Where an attorney was garnished for 
 money collected by him on a note, and had 
 knowledge of facts which, if made known, 
 would have protected the rights of an as- 
 signee of such note, hdd, that he should have 
 set up such facts in his answer; Large v. 
 Moore, 17-358. 
 
 106. Where a debtor is garnished in a suit 
 against a creditor, but no judgment has been 
 rendered in the proceeding, he may, in de- 
 fense to an action by an assignee of his cred- 
 
GARNISHMENT, III. 
 
 815 
 
 Answer of garnishee ; subsequent proceedings ; judgment ; appeal. 
 
 iter's claim, to whom such claim has been 
 assigned after the garnishment, plead the 
 pendency of such proceeding as matter in 
 abatement, but not in bar of- the action: 
 Clise V. Preeborne, 27-380. 
 
 107. Turning over property: The gar- 
 nishee cannot be held liable for not turning 
 over property to the sheriff as authorized by 
 statute after answer (Code, § 3988), where he 
 holds such property undej; a lien which has 
 not been satisfied: Smith v. Clarke, 9-241. 
 
 108. A failure to tender or bring into 
 court money or property in his hands liable 
 to garnishment does not subject the gar- 
 nishee to costs: Randolph v. Heaslip, 11-37. 
 
 109. Where property is turned over by the 
 garnishee to an officer upon certain condi- 
 tions, such conditions should be recognized 
 when shown to the court, and carried out : 
 Buckham v. Wolf, 58-601. 
 
 110. The statutory provision with refer- 
 ence to turning over property does not au- 
 thorize the discharge of a judgment against 
 a garnishee upon the payment of a sum less 
 than the amount of such judgment, even 
 though the judgment rendered is for an 
 amount gi'eater than the amount actually 
 due : Burlington & M. R. R. Co. v. Hall, 37- 
 620. 
 
 111. Liability for interest: A garnishee 
 is not liable for interest unless it be shown 
 that he used the money for which he is liable, 
 instead of setting it apart as a separate fund ; 
 and this rule is not changed by the fact that 
 he might, under the provisions of statute, 
 pay over the money to the sheriff : Moore v. 
 Loivery, 25-336. 
 
 112. Notice of subsequent proceedings: 
 The garnishee is bound to take notice of pro- 
 ceedings subsequent to his answer until he is 
 discharged. He may move for a discharge 
 upon filing his answer : Chase v. Foster, 9- 
 429. 
 
 113. If issue is not taken upon the answer 
 of the garnishee at the term it is filed, the 
 garnishee is entitled to notice ; Kienne v. An- 
 derson, 13-565. 
 
 114. Issue upon garnishee's answer: The 
 plaintiff may take issue upon the general an- 
 swer of the garnishee denying indebtedness : 
 Bebb V. Preston, 3-325. 
 
 115. While it may be that formal plead- 
 ings are not necessary in reply to the answer 
 
 1 
 
 of a garnishee in oi'der to enable the defend- 
 ant to dispute its truthfulness by evidence, 
 yet, when the plaintiff files an answer setting 
 up the facts upon which he bases the denial 
 of the garnishee's answer, thus presenting an 
 issue of fact, he cannot depart therefrom and 
 ask recovery upon gi'ounds not pleaded: 
 Freese v. Co-operative Coal Co., 67-42. 
 
 116. Where plaintiff, seeking to take issue 
 on the garnishee's answer, filed a pleading 
 controverting and denying the same and al- 
 leging that the garnishee was indebted to 
 plaintiff in a certain sum, and asking judg- 
 ment therefor without stating the facts con- 
 stituting the indebtedness, held, that such 
 pleading not having been assailed by motion 
 or demurrer, the garnishee could not object 
 to the introduction of evidence thereunder on 
 the ground tha,t it did not raise any issue : 
 Ruby V. Schee, 51-422. 
 
 117. Whether the facts disclosed in the 
 answer of the garnishee show an indebted- 
 ness to the principal debtor is a question of 
 law which may be reviewed upon an appeal 
 to the supreme court, but when the gar- 
 nishee's answer is denied and evidence is in- 
 troduced on both sides upon the issue thus 
 made, which issue is tried and decided, the 
 supreme court cannot pass upon the correct- 
 ness of the decision without having the entire 
 evidence before it: Sheppard v. Doicning, 
 14-597. 
 
 118. Where plaintiff sought to take issue 
 upon the answers of two garnishees by one 
 pleading, and one of them was on motion 
 discharged from the issue raised thereby, 
 held, that it was error to strike from tlie 
 files a subsequent pleading by the plaintiff 
 controverting the answer of such other gar- 
 nishee : Coffman v. Ford, 56-185. 
 
 119. When an intervener in the garnish- 
 ment proceeding who claims an assignment of 
 the debt to him prior to the service of garnish- 
 ment process has introduced evidence tend- 
 ing to establish such claim, he is entitled to 
 judgment unless other facts are properly 
 shown which defeat his claim, and the gar- 
 nishee's answer is not competent evidence on 
 such issue : Easley v. Gibbs, 29-129. 
 
 120. Tenue: Garnishment proceedings 
 upon an execution cannot be brought in any 
 other court that that in which the judgment 
 to be satisfied is entered. No other court 
 
816 
 
 GARNISHMENT, III. 
 
 Answer of garnishee ; subsequent proceedings ; judgment ; appeal. 
 
 would have jurisdiction and the garnishee 
 must take notice of that fact: McOuire v. 
 Pitts' Sons, 43-535. 
 
 121. The issue raised on the answer of gar- 
 nishee must be tried in the court wherein the 
 principal action is pending, and the venue 
 cannot be changed to the county of the gar- 
 nishee's residence : Miller v. Mason, 51-339 ; 
 Smith V. Dickson, 58-444. 
 
 122. Where a change of venue is taken by 
 defendant in the principal case, such change 
 does not apply to the garnishee unless he 
 joins in the application therefor, and the case 
 should be tried as to him in the court where 
 the proceeding is commenced ; Westphal v. 
 Clark, 43-371. 
 
 123. Trial: When a trial is re.iuired to de- 
 termine the rights of all the parties, the ques- 
 tion as to whether the garnishee is indebted 
 to the defendant is not to be presented sepa- 
 rate from that as to whether the debt in the 
 hands of the garnishee is to be condemned 
 for the payment of such mdebtedness : Will- 
 iams V. Williams, 61-613. 
 
 124. Default: Where the garnishee was 
 notified to appear and answer at the March 
 term, but no appearance being made by him 
 then, or at any time, default was taken at 
 the October term of the next year, held, that 
 such default was properly rendered, and it 
 was immaterial whether a continuance from 
 term to term was entered or not : Langford 
 V. Ottumwa Water Power Co., 53-415. 
 
 125. A slighter showing of diligence or ex- 
 cuse will be sufficient to warrant setting 
 aside default against a garnishee than in case 
 of default against a defendant: Evans v. 
 Mohn, 55-803. 
 
 126. Notice to sliow cause: Although the 
 statute provides (Code, §"2985) that garnishee 
 is not to be held liable to pay the amount of 
 plaintiflE's judgment on account of a mere 
 failure to appear, until he has had an oppor- 
 tunity to show cause against the issuing of 
 an execution, yet it is not provided what 
 notice to show cause shall be given the gar- 
 nishee in default before final judgment can 
 be rendered against him. It is not essential 
 that such notice be served ten days before 
 the term at which judgment is sought. 
 Where it was served during the term, but 
 more than ten days before the time at which 
 the garnishee was required to show cause, 
 
 held, that it was sufficient. Also, held, that 
 it was not error, in the absence of any ap- 
 pearance by the garnishee in response to such 
 notice, to render final judgment against him 
 at a later day in the term than that fixed in 
 the notice: Langford v. Ottumwa Water 
 Power Co., 53-415. 
 
 127. Where the court has not acquired 
 jurisdiction of the garnishee by proper 
 notice, the fact .that the garnishee, when 
 served with notice to show cause why execu- 
 tion should not issue against him, appears 
 and protests that the court has acquired no 
 jurisdiction, wUl not render judgment by it 
 valid : Padden v. Moore, 58-703. 
 
 128. The garnishee may, when called 
 upon to show cause why judgment should 
 not be rendered against him, answer to the 
 original notice of garnishment, although he 
 is in default by failing to appear as required 
 in such notice. His answer to the merits 
 should be presented with his excuse for de- 
 fault, but it is not to be considered until his 
 excuse is held sufficient and his default set 
 aside: Fifleldv. Wood, 9-249. 
 
 129. Garnishee should not only rebut the 
 presumption of indebtedness but show suf- 
 ficient excuse for his default : Parmenter v. 
 Childs, 13-33. 
 
 130. Where default has been rendered 
 against a garnishee who has appeared but 
 has failed to answer in accordance with an 
 order of the court, judgment by default may 
 be rendered against him as for failure to 
 plead, and such a default can only be set aside 
 under the provisions relative to setting aside 
 judgments by default in general : Soamahom 
 V. Scott, 43-539. 
 
 131. As long as the judgment against the 
 garnishee stands as only for failure to appear, 
 and until he is called on to show cause, he 
 may protect himself from liability by show- 
 ing an assignment of the debt from the judg- 
 ment debtor to another, and the judgment in 
 garnishment will not bar an action against 
 the garnishee by the assignee of the claim: 
 MePhail v. Hyatt, 29-137. 
 
 132. The notice required to be given de- 
 fendant of an opportunity to show cause is 
 not a scire facias: Duncan v. Sangamo F. 
 Ins. Co., 35-20. 
 
 133. Where judgment has been rendered 
 against garnishee for failure to appear when 
 
GARNISHMENT, III. 
 
 817 
 
 Answer of garnishee ; subsequent proceediiags ; judgment ; appeal. 
 
 he has not been served with notice to appear, 
 he may at a subsequent term have the judg- 
 ment against him vacated upon motion: 
 Thomas v. Hoffman, 62-125. 
 
 134. The showing in a particular case 
 held sufficient to sustain the setting aside of 
 default against the garnishee for failure to 
 appear: Westphalv. Clark, 46-263. 
 
 135. The judgment which can be rendered 
 against garnishee after he has been given an 
 opportunity to show cause, in default of ap- 
 pearance, should not be greater than that for 
 want of appearance. It is not proper to add 
 interest or costs: Langford v. Ottumwa 
 Water Power Co., 53-415. 
 
 136. Discharge of garnishee: A garnishee 
 Is not relieved from the garnishment lia- 
 bility by a failure to have the garnish- 
 ment proceedings continued from one term 
 to another by order of the court. If he 
 pays the debt before an order of dis- 
 charge, it is at his peril : Hughes v. Monty, 
 24-499. 
 
 137. The fact that one or more terms inter- 
 vene between the garnishment process and 
 the judgment against the garnishee does not 
 show an abatement of the proceeding : Phil- 
 lips v. Germon, 43-101. 
 
 138. Garnishee's li.ahillty: Primarily the 
 garnishee is taken to be an innocent person, 
 and to stand indifferent between the parties; 
 and if no issue is raised on his answer, it is 
 the sole test of his indebtedness. His rights 
 are to be carefully protected, and he is not to 
 he placed in a situation where he will be com- 
 pelled to pay the debt twice: Walters v. 
 Washington Ins. Co., 1-404. 
 
 139. He is in no case to be placed in a 
 •worse condition than he would be if the de- 
 fendant himself was enforcing his claim: 
 Williams v. Housel, 2-154; Smith v. Clarke, 
 9-241 ; Burton v. District Tp, 11-166. 
 
 140. The indebtedness of the garnishee or 
 his possession of property must be affirma- 
 tively shown in order to render him liable : 
 Morse v. Marshall, 22-290. 
 
 141. While the garnishee is to be looked 
 upon as an indifferent person, as between the 
 plaintiff and defendant, and is not to be re- 
 quired to pay his debt but once, yet he will 
 not be protected against the consequences of 
 Iiis own carelessness and negligence, espe- 
 cially where such negligence may result to 
 
 Vol. 1—52 
 
 the injury of bona fide creditors : Houston v. 
 Wolcott, 7-173. 
 
 142. While the garnishment stops the pay- 
 ment of any debt due from garnishee to de- 
 fendant, it does not prevent any ti-ansaction 
 not gi-owing out of the relation of debtor end 
 creditor, nor prevent the payment by the 
 gai-nishee to defendant of money which 
 such garnishee is under no legal obligation 
 to pay: Victor v. Hartford F. Ins. Co., 33- 
 210. 
 
 143. Where a person, being insolvent, by 
 an attorney in fact sold his entire stock of 
 goods to a creditor to secure the payment of 
 a debt, and after such creditor had taken 
 possession he was garnished under an at- 
 tachment issued in favor of another creditor, 
 held, that the garnishee was not to be pre- 
 sumed liable and the burden was upon plaint- 
 iff to show such liability, either from the 
 garnishee's answer or by taking issue thereon, 
 and showing it by evidence on such issue, 
 and that upon failure to show that the gar- 
 nishee did not hold the goods under a valid 
 sale or pledge he was not to be held liable : 
 Fanvell v. Howard, 26-381. 
 
 144. Where the garnishee answered that 
 the note in his hands sought to be reached 
 by the garnishment proceeding was received 
 by hini from the defendant for the specific 
 purpose of paying a judgment on which the 
 garnishee was liable as surety, held, that the 
 action as to garnishee was properly dis- 
 missed : Dryden v. Adams, 29-195. 
 
 145. Garnishee's liability is to be measured 
 by his responsibility and relation to the de- 
 fendant. Therefore, held, that where gar- 
 nishee was surety for defendant and author- 
 ized to pay the secured debt out of property 
 held by garnishee belonging to defendant, 
 he should not be liable for so much of the 
 proceeds of such property as was neces- 
 sary to satisfy the secured debt : Cox v. Rus- 
 sell, 44-556. 
 
 1 46. Where the creditor requires payment 
 or pledge to secure payment in advance of the 
 contracting of indebtedness, no indebtedness 
 is created that can be the subject of garnish- 
 ment: Caldwell V. Stewart, 30-879. 
 
 147. The garnishee is not to be held liable 
 for proceeds of exempt property of the debtor, 
 held by him at the time of garnishment 
 under mortgage which he has sold or allowed 
 
818 
 
 GARNISHMENT, III. 
 
 Aflswer of garnishee ; subsequent proceedings ; judgment ; apiDeal. 
 
 to be sold for the debtor's benefit : Brainard 
 V. Simmons, 67-646. 
 
 148. When answer shows liability: To 
 charge a garnishee on his answer alone, there 
 must be in it a clear admission of a debt due 
 to, or the possession of attachable property 
 of, the defendant. If there is a reasonable 
 doubt whether he is chargeable, he is entitled 
 to judgment in his favor : Morse v. Marshall, 
 33-390 ; Church v. Simpson, 35-408 ; Hibbard 
 V. Everett, 65-373. 
 
 149. But, although the garnishee deny gen- 
 erally having property of, or being indebted 
 to, the defendant, if it appear from the other 
 statements of his answer that he is so in- 
 debted, judgment should be rendered against 
 him : Bebb v. Preston, 1-460. 
 
 150. Although the admissions of the an- 
 swer are not explicit, yet if from the entire 
 answer it clearly appears that the garnishee 
 is liable, judgment should go against him : 
 Smith V. Clarke, 9-341. 
 
 151. Where the answer of the garnishee 
 stated that he was indebted to the judgment 
 debtor at a certain date, "about the time of 
 the service of garnishment, in the sum of," 
 etc., held, that the answer was sufficient to 
 justify the conclusion that he was indebted 
 at the time of service of notice which was on 
 the next day after the day mentioned 'in his 
 answer : Hoops v. Culbertson, 17-305. 
 
 152. The statement of a person that he is 
 indebted to defendant, and a promise on his 
 part to retain the amount of such indebtedness 
 in his possession until a garnishment pro- 
 ceeding can be instituted against him, will 
 not estop him from stating, when summoned 
 as garnishee, that he is not indebted to the 
 defendant in such proceeding: Starry v. 
 Korab, 65-367. 
 
 163. Judg-inent: The judgment rendered 
 against the garnishee should not exceed the 
 amount of the judgment against the original 
 debtor and the costs of the proceeding in 
 which such judgment was obtained: Tim- 
 mons V. Johnson, 15-33. 
 
 154. Without a recovery against the debtor 
 there can be no judgment against the gar- 
 nishee : Barton v. Smith, 7-85. 
 
 155. And a judgment against a garnishee 
 will be reversed on appeal where it does 
 not appear from the record that judgment 
 was rendered against the defendant in the 
 
 main action : Bean v. Barney, 10-498 ; I'oll v. 
 Knight, 15-370. 
 
 156. Judgment against garnishee cannot 
 legally be rendered on a liability not yet due; 
 Wilson V. Albright, 3 G. Gr., 135. 
 
 157. Conditional judgment: Where the 
 garnishee is found indebted to defendant on 
 a contract payable in property other than 
 money, the judgment should be conditioned 
 that it may bp discharged in property, or, 
 on failure thereof, become absolute, and a 
 general execution issue : Stadler v. Parmlee, 
 14-175; Bansomv. Stanberry, 33-334. 
 
 158. Where it appeal's that the garnishee 
 has a lien upon property of defendant in hi? 
 hands," the judgment should be conditioned 
 that it be discharged upon the property being 
 turned over to the sheriff, the proceeds to be 
 applied to the original judgment, after satis- 
 fying the lien of the garnishee: Hawthorn 
 V. Unthank, 53-507. 
 
 159. It would not be proper in such a case 
 to render an unconditional money judgment 
 against the garnishee and thus make him a 
 purchaser of the property without his con- 
 sent: Ibid. 
 
 160. Alternative judgment: While the 
 judgment against garnishee may be, in one 
 sense, conditional, that is, contingent upon 
 final recovery of judgment against the prin- 
 cipal debtor, it should be absolute as to the 
 amount of his indebtedness. If the judg- 
 ment is for one of two amounts in the alter- 
 native, depending upon a future contingency, 
 it cannot be regarded as final: Battell v. 
 Lowery, 46-49. 
 
 161. A judgment that plaintiff recover 
 from garnishee, providing that the garnishee 
 be first fully indemnified, as by law provided, 
 or that the notes be surrendered, is not a 
 final judgment : Seals v. Wright, 37-171. 
 
 162. Other points as to judgment: Where 
 garnishee was under obligation to account 
 to defendant for one-half the proceeds of 
 certain uncollected notes and accounts, hdd, 
 that judgment could not be rendered against 
 him for one-half the amount thereof, as some 
 of them might be uncollectible, and the gar- 
 nishee, being owner of the other half of such 
 notes and accounts, was not under obligation 
 to turn them over to the sheriff to escape ha- 
 bUity : Cox v. Russell, 44^556. 
 
 163. Where the judgment in a garnish- 
 
GARNISHMENT, III. 
 
 819 
 
 Answer of garnishee ; subsequent proceedings ; judgment ; appeal. 
 
 ment proceeding was rendered jointly against 
 different garnisliees who answered separately, 
 and a reply was filed as to all of such an- 
 swers, and no showing was made that a joint 
 liability was not established, held, that the 
 judgment was proper :- Bo^/d x;. Rutledge, 35- 
 271. 
 
 164. Where the liability of the other gar- 
 nishees would be increased by the discharge 
 of one, such other garnishees have an inter- 
 est in the determination of the liability of 
 their co-garnishee : Creasap v. Bower, 41- 
 210. 
 
 165. The judgment in the garnishment 
 suit need not in express terms recite the sat- 
 isfaction of the indebtedness from the gar- 
 nishee to defendant : Stadler v. Parmlee, 14^ 
 175. 
 
 166. The statutory requirement (Code, 
 § 2992) that judgment against a garnishee 
 shall refer to the original judgment, held suf- 
 ficiently compUed with if the record entry of 
 the judgment against the garnishee contains 
 the title of the cause in which such original 
 judgment was rendered: Boyd v. Rutledge, 
 25-271. 
 
 167. A justice has jurisdiction in proceed- 
 ings against a garnishee, although the judg- 
 ment on which garnishment issues be for 
 more than one hundred dollars: Oillett v. 
 Biehards, 46-653. 
 
 168. A judgment discharging the gar- 
 nishee cannot be rendered by a judge in 
 vacation: Laughlinv. Pedkham, 66-131. 
 
 169. Effect of judgment: The legal effect 
 of a judgment against a garnishee is to sat- 
 isfy, to the extent of such judgment, the in- 
 debtedness between such garnishee and the 
 principal debtor : Stadler v. Parmlee, 14-175, 
 
 170. The garnishee is protected by the 
 judgment, although for error therein it 
 might be reversed on appeal: Houston v. 
 Walcott, 1-86. 
 
 171. If the debtor brings a suit against the 
 garnishee, in this state, for a debt due him, 
 the latter can successfully defend by setting 
 up the fact that he has been garnished upon 
 such debt in another state; Jloore v. Chi- 
 cago, E. I. (St P. R. Co., 43-385; Leiberv. 
 Union Pacific R. Co., 49-688. 
 
 172. Although exemption laws can have 
 no territorial eflEect, yet where the debtor and 
 creditor both resided in this state, and the 
 
 creditor caused proceedings to be brought in 
 another state, and an indebtedness due to the 
 debtor in this state, and exempt here, to be 
 garnished, held, that the debtor might main- 
 tain an action against the creditor to enjoin 
 the prosecution of such proceedings, and that 
 the creditor, having violated such injunction 
 and collected the amount of the indebtedness 
 in the foreign jurisdiction, might be held 
 liable in damages therefor in the same action : 
 Teager v. Landsley, 69-735 ; Hager v. Adams, 
 70 . 
 
 173. The judgment against the garnishee 
 by a court having jurisdiction as to the sub- 
 ject-matter, that is, a debt due from the gar- 
 nishee, is a judgment in rem and cannot be 
 attacked in a collateral proceeding: Moore v. 
 Chicago, R. I. <& P. R. Co., 43-385. 
 
 174. Where defendant relies upon gar- 
 nishment proceedings in another state as a 
 bar to an action, it is competent to show 
 that the principal judgment on which the 
 garnishment proceeding was based was in- 
 valid for want of service sufficient to give 
 the court jurisdiction : O'RourJce v. Chicago, 
 If. &St. P. R. Co., 55-333. 
 
 175. The release of a garnishee who is in 
 fact Indebted does not estop the creditor 
 from levying on property bought with money 
 paid by the garnishee to the debtor and 
 which was due and unpaid at the time of 
 garnishment and release: Milligan v. Bow- 
 man, 46-55. 
 
 176. Where a judgment debtor has been 
 garnished and judgment rendered against 
 him without notice of a prior assignment of 
 the judgment, the assignee cannot compel 
 payment while the judgment in the gar- 
 nishment proceeding remains in full force: 
 McGuire v. Pitts' Sons, 43-535. 
 
 177. Money paid out by the garnishee in 
 connection with the proceedings in the origi- 
 nal case, but not in accordance with any 
 judgment in such case, cannot be allowed in 
 satisfaction of his indebtedness: Myers v. 
 McHugh, 16-835. 
 
 178. Appeal: If the gai-nishee allows judg- 
 ment to go against him for an amount in ex- 
 cess of his indebtedness, and does not appeal 
 therefrom, he cannot be relieved, even on 
 payment of the amount actually due: Bur- 
 lington & M. R. R. Co. V. Hall, 37-620. 
 
 179. A judgment against a garnishee will 
 
820 
 
 GIFTS. 
 
 Delivery essential. — Conditions, declarations, etc. 
 
 not be reviewed on appeal when the appel- 
 lant has taken no exceptions to any ruling of 
 the court, or submitted any motion to set 
 aside the judgment : Eason v. Gester, 31-475 ; 
 Rohison v. Saunders, 14-539. 
 
 180. The principal defendant may appeal 
 from a judgment against the garnishee : Sin- 
 ard V. Oleason, 19-165. 
 
 181. Where a judgment is rendered against 
 the garnishee, defendant cannot complain 
 thereof on appeal unless he has ground of 
 objection to the judgment rendered against 
 him for the indebtedness sued upon: Fan- 
 ning V. Minnesota B. Co., 37-379. 
 
 182. The decision that garnishee is in- 
 debted to defendant is not conclusive, al- 
 though the garnishee does not appeal. If the 
 case is again opened by appeal, other parties, 
 claiming that the indebtedness is due to 
 them, may intervene : Daniels v, Clark, 88- 
 
 GIFTS. 
 
 1. DeliTery essential: A gift unaccom- 
 panied by delivery is void and cannot be en- 
 forced, either in law or equity. Use following 
 the gift is not of itself sufficient : Willey v. 
 Baclms, 52-401. 
 
 2. Conditions: If the donee has knowledge 
 of the terms of the gift, he cannot acquire 
 title to the property by receiving it in vio- 
 lation of such terms, and even if he has not 
 kno^^ledge of such conditions, and receives 
 the property from an agent who is author- 
 ized to deliver it only upon performance of 
 such conditions, he does not acquire title 
 which the agent was not authorized to con- 
 vey. In neither case would the donor be- 
 come bound by his simple failure to repu- 
 diate the gift. The donee cannot dictate the 
 terms, nor change those made by the donor, 
 but must take the gift with its conditions or 
 not at all : Berry v. Berry, 31-415. 
 
 3. Declarations; acceptance: "Where the 
 payee of promissory notes tore them up and 
 declared that in the event of her death she 
 did not intend that the maker should be 
 liable thereon, held, that the destruction of 
 the notes and the declarations of the payee 
 constit^ited a gift to the maker thereof, and 
 that, not being coupled with any condition, 
 
 his acceptance would be presumed : Darland 
 V. Taylor, 53-503. 
 
 4. Iniprovements: When a party for a 
 period of seven years, at the request of the 
 owner, who was his uncle, took charge and 
 control of a piece of farm land, cultivating 
 and improving the same, and paying taxes 
 thereon, and during the last two years, un- 
 der a vague and indefinite promise and 
 inducements made by his uncle, erected a 
 residence and other valuable improvements, 
 and moved upon the land, neither account- 
 ing nor being requested to account for the 
 rents and profits, but never claiming to be 
 the owner of the premises, held, that the 
 evidence was insufficient to justify a court 
 of equity in enforcing, as against heirs of 
 the grantor, a specific performance of an 
 alleged parol gift of said real estate : John- 
 ston V. Johnston, 19-74. 
 
 5. An executory contract to convey, made 
 by a father to his child without considera- 
 tion, will not be enforced unless the child has, 
 upon the strength of such promise, made 
 permanent and valuable improvements: 
 Moore v. Pierson, 6-379. 
 
 6. Where a gift was made by mother to 
 daughter of real property, and a conveyance 
 therefor executed, which was, however, re- 
 tained by the mother and not recorded, but 
 possession of the land was taken by the 
 daughter thereunder and improvements 
 made thereon, held, that in an action in 
 equity, the daughter might have her title to 
 the land quieted, subject, however, to the hen 
 of an obligation entered into in connection 
 with the gift, to furnish one-third of the sup- 
 port of the mother during the remainder of 
 her life : Wamsley v. Lincicum, 68-556. 
 
 7. Advancements: A conveyance without 
 consideration by a parent to his child is prima 
 facie an advancement, and the burden of 
 proof is upon the party claiming it to be a 
 gift: Burton v. Baldwin, 61-383; McMahill 
 V. McMahill, 69-115. 
 
 Further as to advancements, see Estates 
 OF Decedents, §§ 368-273, and Convey- 
 ances, §§ 130-133. 
 
 8. Evidence in a particular case held not 
 sufficient to show a gift of land from father 
 to son : Huston v. Markley, 49-163. 
 
 9. Burden of proof: It seems that where 
 a party claims title to property under a gift, 
 
GUARANTY, I, a. 
 
 821 
 
 In general. — Nature of the contract. 
 
 the burden of proof is upon him to establish 
 such gift : Samson v. Samson, 67-253. 
 
 10. Confidential relations: A gift ob- 
 tained by a person standing in a confidential 
 or fiduciary relation to the donor is prima 
 facie void. But in a case of gifts from par- 
 ent to children, there being nothing to indi- 
 cate that they were made under the influence 
 of the children, and there being no fiduciary 
 relationship between the parties, held, that 
 the transaction would be sustained : Ibid. 
 
 tfRANU JURY. 
 
 See JxiKORS, and Criminal Law. 
 
 GUARANTY. 
 
 I. In GENERAli. 
 
 a. Nature of the contract; how shown 
 to eadst. 
 ' b. Consideration. 
 c. Assignability. 
 n. Eights of parties inter se. 
 
 a. In general. 
 
 b. Demand and notice; diligence. 
 
 I. In general. 
 
 a. Nature of the contract; how shown 
 to exist. 
 
 1. Defined: A guaranty is a contract by 
 one person to another for the fulfillment of 
 the promise of a third person, made to the 
 latter : Andrews v. Tedford, 37-314. 
 
 2. A guarantor is a surety and may avail 
 himself of the defense of usury to the same 
 extent as the principal: Conger v. Babbet, 
 67-13. 
 
 3. Distinguished from suretyship: A 
 guarantor is one who becomes bound for a 
 prior or collateral contract upon which the 
 principal alone is indebted. A surety is one 
 who joins with his principal in the execution 
 of a contract and becomes primarily liable 
 thereon. The guarantor is not primarily 
 liable upon his principal's contract, and only 
 becomes liable upon the default of the latter : 
 Singer Mfg. Co. v. Littler, 56-601. 
 
 4. Blank indorsement: By Code, g 2089, 
 the blank indorsement of an instrument for 
 the payment of money, property or labor. 
 
 by one not the payee, indorsee or assignee 
 thereof, is deemed a guaranty, but a full in- 
 dorsement of such instrument, or an indorse- 
 ment thereof by a party, does not make the 
 indorser a guarantor : Stout v. Noteman, 30- 
 414 ; Greene v. Thompson, 33-293. 
 
 5. A writing on the back of a note, " I 
 hereby indorse within note,'' signed by a per- 
 son not a party to the note nor an indox'see or 
 transferee thereof, constitutes in legal effect 
 a blank indorsement within the terms of this 
 section: Conger V. Babbet, QT-iZ. , 
 
 6. Such a contract of guaranty is different 
 from a contract of suretyship : Robinson v. 
 Reed, 46-219. 
 
 7. Two such indorsers by successive blani 
 indorsements, neither of them being parties 
 to the note, are not co-sureties: Knight v, 
 Dunsmore, 12-35. 
 
 8. Absolnto guaranty: There is a distinc- 
 tion between an offer or proposition to guar- 
 anty and a direct promise to guaranty. The 
 former requires notice of acceptance, and 
 must be acted upon, while the latter does 
 not. Hence, where the defendant agreed in 
 writing to sign a note already executed by 
 another, for the purpose of securing the 
 same, and thus caused the payee of the note 
 to part with the consideration, the writing 
 was considered an absolute guaranty, and 
 notice of the acceptance of the guaranty 
 was held unnecessary: Carman v. Mledge, 
 40-409. 
 
 9. Recommendation: Where defendant 
 wrote plaintiff a letter respecting one who de- 
 sired credit on the purchase of a machine 
 from plaintiff, in which defendant, in sub- 
 stance, recommended the proposed purchaser 
 as one in whom confidence might be placed, 
 and assured plaintiff that the money would 
 be forthcoming at the proper time, held, that 
 such letter did not amount to an undertaking 
 or promise such as to render defendant liable, 
 in the absence of fraud : Case v. Liise, 28-527. 
 
 10. Notice of acceptance is not necessary 
 where the guaranty is absolute. The guar- 
 antor must ascertain for himself whether the 
 person whom he has guarantied has availed 
 himself of the guaranty or not. The follow- 
 ing form is an absolute gxiaranty : " If D. A. 
 Hills purchases a case of tobacco on credit I 
 agree to see the same paid for in four 
 months." Notice of the acceptance of an ab- 
 
822 
 
 GUARANTY, I, a. 
 
 Nature of tlie contract ; how shown to exist. 
 
 solute guaranty like the above is not neces- 
 sary. It needs only to be acted upon : Case 
 V. Howard, 41-479. 
 
 11. The question whether a guarantor had 
 notice that his guaranty was accepted and 
 acted upon is a question of fact for the jury : 
 First Nat. Bank v. Carpenter, 34^433. 
 
 12. Where a continning guaranty exists, 
 and is acted upon from time to time, the 
 course of dealing between the parties and 
 the connecting circumstances may be sufiS- 
 cientto establish notice to the guai-antor that 
 such guaranty is being relied upon: First 
 Nat. Bank v. Carpenter, 41-518. 
 
 13. Hence the finding of a jury to the ef- 
 fect that the guarantor had notice that his 
 guaranty was being acted upon is sufBciently 
 sustained when it appears from the evidence 
 that the party desiring credit had asked the 
 guarantor to guarantee him ; that he had 
 told the guarantor that such guaranty was 
 necessary in order to procure advances, and 
 that the party making advances upon the 
 strength of this guaranty had intrusted the 
 collection of some of them from time to time 
 to the guarantor : Ibid. 
 
 14. A continuing guaranty remains in 
 force until shown to be rescinded. The biir- 
 den of proof for that purpose is upon the 
 guarantor: Knight v. Fox, Mor., 305. 
 
 15. Defendant wrote plaintiff that a cer- 
 tain party wanted "a little money; if you 
 want any one on the note, I will fix it when 
 I come in." Held, that this did not amount 
 to a letter of credit, and was not an absolute 
 undertaking to pay money advanced upon 
 the faith of the instrument ; that in order to 
 render such a proposition binding it must be 
 accepted; the manner in which defendant 
 should bind himself, whether as surety, 
 guarantor, or indorser, should be pointed 
 out, and he should be notified of the accept- 
 ance within a reasonable time, and that such 
 steps not having been taken, he could not be 
 held liable, although he knew of the fact 
 that money was being lent on the strength of 
 his letter : Scribner v. Rutherford, ep-551. 
 
 10. TVairer of notice; ratification: 
 Where a guarantor, upon being notified of 
 sales made upon his guaranty as an existing 
 obligation, promised to make it good, held, 
 that he thereby waived any objection on ac- 
 count of failure to notify him of acceptance 
 
 of the guaranty when first acted upon : Far- 
 well V. Sully, 38-387. 
 
 1 7. And held, that such a ratification by 
 the guarantor was a waiver of any obligation 
 to give notice at a future time of the amount 
 of the liability as provided by the terms of 
 the guaranty : Ibid. 
 
 18. Evidence: A memorandum book con- 
 taining orders given to a seller's agent is ad- 
 missible in evidence to show that a certain 
 party had guarantied the whole of an order 
 sought to be charged against him, and not 
 merely a part of the order, when it appears 
 that the guarantor had written his name in 
 the book in the middle of the order in ques- 
 tion as a part of the transaction. It is com- 
 petent evidence against him for whatever it 
 is worth in order to show what his connec- 
 tion with the transaction really was : Shadr 
 bolt V. Shaw, 40-583. 
 
 19. Parol evidence will not be received to 
 show that a writen instrument, by which a 
 party agrees to pay a certain sum of money 
 at a certain time and place, was intended as 
 a guaranty for the fulfillment of a promise by 
 a third person to pay a difEerent sum at an- 
 other time and place: Andrews v. Tedford, 
 37-314. 
 
 20. Construction in particular cases: A. 
 guarantied to B. the " payment of all indebt- 
 edness by account, note, indorsement of 
 notes or otherwise " incurred by his principal, 
 C. C. then transferred to B. certain notes, 
 guaranteeing their prompt payment, but not 
 indorsing them. Held, that C.'s guarantors 
 were liable for his simple words of guaranty 
 without other indorsement: Davis Sewing 
 Machine Co. v. McQinnis, 45-538. 
 
 21. Where guarantors undertook to guar- 
 antee the payment of notes of certain descrip- 
 tions to be transf eiTcd and guarantied by the 
 priucipal debtor to his creditor, and the cred- 
 itor accepted notes not corresponding to the 
 descriptions contained in the contract, held, 
 that the guarantors were not liable : Ibid. 
 
 22. Where a party, in answer to a letter 
 demanding guaranty of payment for goods 
 proposed to be sold, responded that defend- 
 ant " has offered to assist me; if satisfactory 
 please ship the goods," and to which was 
 added, "I agree to the above," signed by de- 
 fendant, held, that this w&s a sufiicient writ- 
 ten guaranty to render defendant liable for 
 
GUARANTY, I, b, c; II, a. 
 
 823 
 
 Consideration. — Assignability. — Riglits of parties inter se. — In general. 
 
 goods shipped in accordance with such letter : 
 Westphal v. Moulton, 45-163. 
 
 23. A guaranty " to continue in full force 
 for the sum of, etc. , until countermanded in 
 writing," held to be a continuing guaranty, 
 but limited to that amount of indebtedness : 
 dark V. Hyman, 55-14. 
 
 b. Consideration. 
 
 24. Extension of time on an account is a 
 sufficient consideration for an agreement by 
 a third party to guarantee the payment of 
 the account: Taylor v. Wightman, 51-411. 
 
 25. Parol evidence is admissible to show 
 a consideration for such contract other than 
 that expressed on its face : Ibid. 
 
 26. Implied: A written guaranty to pay a 
 past debt to another will imply a considera- 
 tion : Hendersoti v. Booth, 11-213. 
 
 27. A blank indorsement of an instru- 
 ment by one not a party thereto (which by 
 Code, § 3089, constitutes a guaranty) imports 
 a consideration in the absence of evidence 
 to the contrary : Veachv. Thompson, 15-380. 
 
 28. And such an indorsement, made with- 
 out consideration for accommodation, will be 
 binding in the hands of a purchaser for value 
 even with knowledge of the fact that it was 
 made for accommodation : Berryhill v. Jones, 
 35-335. 
 
 29. A contract of indemnity by the plaint- 
 iff in a garnishment proceeding to protect 
 the garnishee against any liability which may 
 be enforced by the garnishment defendant 
 against such garnishee notwithstanding the 
 garnishment, is upon sufficient consideration : 
 Luay V. Price, 39-36. 
 
 G. Assignability. 
 
 30. May be assigned ; action by assignee: 
 Under tlie provisions of the statute making 
 all contracts assignable, a guaranty may be 
 assigned and an action thereon may be 
 brought by the assignee in his own name : 
 First Nat. Bank v. Carpenter, 41-518. 
 
 31. A verbal assignment of a guaranty 
 transfers to the assignee the right to main- 
 tain a suit thereon in his own name : Oreen 
 V. MarUe, 37-95. 
 
 32. Not negotiable: A contract of guar- 
 anty is not negotiable : Carter v. Dubuque, 
 35-416. 
 
 II. Eights of parties intee se. 
 
 a. Jn general. 
 
 33. Out of particular fund ; mistake: 
 
 Where the guaranty of a note was modified 
 before signature by adding thereto that pay- 
 ment of the guaranty would be made "out 
 of the funds placed in my hands as assignee " 
 of the maker, held, that the qualifioation did 
 not Umit the liability of the guarantor, and 
 the fact that he was assured by the attorney 
 of the payee that the qualification would 
 have that effect was not admissible as evi- 
 dence to vary his liability: Wadsworth v. 
 Smith, 43-439. 
 
 34. Kight of action arises when: Where 
 a party agrees to indemnify another against 
 a judgment, the party to be indemnified may 
 bring action upon the failure of the other to 
 perform his agreement, but the plaintiff 
 must show that he himself has paid the judg- 
 ment: Bacon v. Marshall, 37-581. 
 
 35. Liability of partnership: A guaranty 
 given by one member of a firm will bind 
 the firm when the giving of such a guaranty 
 is within the scope of the partnership busi- 
 ness. Thus a guaranty given in the firm 
 name by one member of a banking firm 
 binds the firm : First' Nat. Bank v. Carpen- 
 ter, 41-518. 
 
 36. A joint action may be maintained 
 against the maker and guarantor of a promis- 
 sory note : Marvin v. Adamson, 11-371 ; Mioa 
 V. Fairchild, 13-351 ; Veach v. Thompson, 15- 
 380. 
 
 37. Not waived by taking note of prin- 
 cipal: Where a purchase is made by a party 
 on the strength of a guaranty given him by' 
 another, such guaranty is not affected by 
 the fact that the creditor takes a note of the 
 debtor covering that amount : Case v. How- 
 ard, 41-479. 
 
 38. Creditor need not exhaust other 
 security : The fact that a creditor has secu- 
 rity upon personal property which he fails to 
 enforce until it becomes valueless does not 
 release a guarantor of the debt: Fuller v. 
 Tomlinson, 58-111; Adams & French Har- 
 vester Co. V. Tomlinson, 58-139. 
 
 39. Settlement: Matter accruing before 
 the making of the guaranty, lield not to be 
 considered as constituting a settlement or a 
 waiver : Star Wagon Co. v. Swezy, 59-609. 
 
824 
 
 GUARAXTY, II, b. 
 
 Demand and notice; diligence. 
 
 40. Subrogation upon payment: A guar- 
 antor who pays an indebtedness is entitled to 
 have the principal undertaking assigned to 
 him and to have the benefit of all securities 
 which have been placed in the creditor's 
 hands by the principal debtor. Thus a guar- 
 antor who pays a note becomes entitled to 
 the ownership of the note, and becomes the 
 equitable owner of a chattel mortgage given 
 for its security, and his rights under the 
 mortgage are not affected by satisfaction of 
 the mortgage entered on the record by the 
 mortgagee, no rights of innocent parties 
 having intervened: Rand v. Barrett, 66-731. 
 
 b. Demand hnd notice; diligence. 
 
 41. Not necessary in case of ahsolnte 
 contract of guaranty: The guarantor under 
 an absolute contract of guaranty is liable 
 without proof of notice of non-payment: 
 Crittenden v. Steele, 3 G. Gr., 538; Hender- 
 son V. Booth, 11-212. 
 
 42. In case of absolute guaranty of an 
 instrument by a party thereto, demand of 
 payment and notice of non-payment need 
 not be alleged : Peddicord v. Whittani, 9-471 ; 
 Marvin v. Adamson, 11-371. 
 
 43. So held in case of gjiaranty by drawer 
 of sight draft : Oriffln v. Seymour, 15-30. 
 
 44. So where the payee of a note, secured 
 by mortgage, indorsed the note and guaran- 
 tied the mortgage, and the mortgage became 
 due by its stipulations through failure to pay 
 taxes, held, that the guarantor became liable, 
 although the note was not yet due and he 
 had no notice of presentment and dishonor : 
 Claflin V. Reese, 54^544. 
 
 45. So where a non-negotiable instrument 
 was guarantied by the payee, held, that he 
 became liable without demand and notice: 
 Peck V. Frink, 10-193. 
 
 46. Guaranty by blank indorsement of 
 person not a party: A blank indorsement 
 of an instrument by a person not a party 
 thereto (in the absence of the statutory pro- 
 vision below referred to) renders the indorser 
 liable in accordance with the contract, in 
 pursuance of which the indorsement is made, 
 and the blank indorsement may be filled up 
 accordingly. If that contract is one of guai-- 
 anty, proof of demand and notice is not nec- 
 essary, but want of demand and notice may 
 
 be set up as a defense, to the extent to which 
 such guarantor can show himself to have 
 been injured by want of such demand and 
 notice: Fear v. Dunlap, 1 G. Gr., 331. 
 
 47. By statutory provisions (Code, 
 §§ 2089, 2090) the guarantor by blank indorse- 
 ment of an instrument to which he is not a 
 party as payee, indorsee or assignee, cannot 
 be held unless he has notice of non-payment 
 within a reasonable time, or the holder shows 
 afiirmatively that such guarantor has re- 
 ceived no detriment from want of such no- 
 tice : Picket v. Halves, 14-460. 
 
 48. But these provisions are not applicable 
 to other forms of guaranty : Oriffin v. Sey- 
 mour, 15-30 ; Peddicord v. Whittam, 9-471 ; 
 Sabin v. Harris, 12-87. 
 
 49. This statutory provision is not aflfected 
 by the other provision (Code, § 2093) as to no- 
 tice of non-payment of negotiable paper: 
 Sibley v. Van Horn, 13-209. 
 
 50. Where a person becoming guarantor by 
 blank indorsement of an instrument to which 
 he was not a party, afterward indorsed an 
 extension of time on such guaranty, held, 
 that such second indorsement did not change 
 the nature of his liability : Picket v. Hams, 
 14^460. 
 
 51. What is reasonable notice: While the 
 guarantor of a note should be notified within 
 a reasonable time of the non-payment by the 
 maker, yet the reasonable notice to which he 
 is entitled is not the same as that which 
 must be given an indorser : Oreene v. Thomp- 
 son, 33-293. 
 
 52. Delay iu giving notice: Although the 
 guarantor of a note ought to be notified of 
 its non-payment, yet he cannot defend for 
 want of notice unless it has been so long de- 
 layed as to raise a presumption of payment or 
 waiver, or unless he can show that he has 
 lost, by the delay, opportunities for protecting 
 himself which an earlier notice would have 
 secured him : Second Nat. Bank v. Oaylord, 
 34-246. 
 
 53. No detriment: Where there is testi- 
 mony tending to show afiirmatively that the 
 guarantor by blank indorsement of an instru- 
 ment to which he is not a party received no 
 detriment from want of notice, that question 
 should be left to the jury: Mt. Pleasant 
 Branch, etc., Bank v. McLeran, 26-306. 
 
 54. Proof of the maker's insolvency at ma- 
 
GUARANTY, II, b. 
 
 825 
 
 Demand and notice ; diligence. 
 
 turity of the note and continuously aftei'- 
 wards is prima facie sufficient to show that 
 the guarantor has received no detriment from 
 want of notice : Knight v. Dunsmore, ] 2-35. 
 65. Demand is not necessary in such cases : 
 Ibid. 
 
 56. Want of notice as a defense: The 
 want of demand and notice to the guarantor 
 of non-payment will constitute a defense 
 only where the guarantor shows actual loss 
 resulting to him from want of notice : Ibid. ; 
 Fear v. Ditnlap, 1 G. Gr., 331; Weller v. 
 Hawes, 19-443 ; Rodabaugh v. Pitkin, 46-544. 
 
 57. And the guai'antor will be discharged 
 for want of notice only to the extent that he 
 has suffered injury from the want thereof : 
 Fear v. Dunlap, 1 G. Gr., 331 ; Sabin v. Har- 
 ris, 13-87. 
 
 58. How pleaded : It is for the guarantor 
 to aUege want of notice and detriment there- 
 from, if he relies thereon as a defense : Mar- 
 vin V. Adanison, 11-371. 
 
 59. The burden of proof of injury from 
 want of notice is upon the guarantor relying 
 thereon as a defense : Sabin v. Harris, 12-87. 
 
 60. Waiver of notice: Where the guaran- 
 tor of notes expressly waived notice and pro- 
 test, held, that notice to him of default of 
 the maker was not necessary, and that he 
 was liable without proof that he had suffered 
 no injury from want of such notice: Star 
 Wagon Co. v. Stvezy, 59-609; S. C, 52-391 ; 
 8. a, 63-520. 
 
 61. Notice in case of continuing guar- 
 anty : Where there is a continuing guaranty, 
 under which the liability of guarantor is 
 subject to be increased or diminished from 
 time to time, and there is uncertainty as to 
 when it wiU cease, the party indemnified 
 having the power to put an end to the con- 
 tract guarantied without the knowledge of 
 the guarantor, must notify the guarantor, 
 within a reasonable time after the transac- 
 tions with the principal debtor are closed, of 
 the amount or extent of his liability : Davis 
 Sewing Machine Co. v. Mills, 55-543 ; Singer 
 Mfg. Co. V. Littler, 56-601. 
 
 62. Waul of diligence; detriment: In an 
 action on an absolute guaranty it is not nec- 
 essary to aver diligence in commencing suit, 
 nor want of detriment to guarantor by reason 
 of the failure to do so : Peddicord v. Whit- 
 tam, 9-471 ; Peck v. Frink, 10-193. 
 
 63. Mere lack of diligence on the part of 
 the holder in enforcing payment from the 
 maker of a note will not estop him from 
 looking to the guarantor: Star Wagon Co. 
 V. Swezy, 63-520. 
 
 C4. Guaranty of collectibility: Where 
 the guaranty is of the collectibility of a note, 
 the guarantor is entitled to have the note 
 presented to the maker and to notice of non- 
 payment within a reasonable time, unless 
 it is shown that he suffered no detriment 
 from the neglect to give such notice. The 
 guaranty of collection implies that some- 
 thing is to be done by the holder towards 
 securing the collection: Peck v. Frink, 10- 
 193. 
 
 G5. Due diligence, or excuse must be 
 pleaded: Where the guaranty is of collecti- 
 bility, the petition in an action against the 
 guarantor must state that due diligence has 
 been used in the effort to collect, or an ex- 
 cuse for not using such diligence. The facta 
 constituting diligence must be stated ; a gen- 
 eral averment of diligence wiU not be sufS.- 
 cient : Leas v. White, 15-187. 
 
 66. If the holder fails to show diligence or 
 an excuse for want of diligence in his efforts 
 to collect from the parties liable on the note 
 at the time its collectibility is guarantied, 
 he cannot recover from the guarantor : Sum- 
 mers V. Barrett, 65-293. 
 
 67. What constitutes due diligence in 
 such case: Due diligence sufficient to hold 
 a guarantor of collectibility would gener- 
 ally require suit to be commenced at the first 
 regular term of court after maturity and the 
 obtaining judgment and execution thereon 
 as soon as practicable by the ordinaiy rules 
 and practice of the coflrt : Voorhies v. Atlee, 
 29-49. 
 
 68. Waiver of diligence: If, at the in- 
 stance and request of guarantor, and upon 
 the faith of his promise, diligence is not used 
 in enforcing collection, the guarantor will be 
 deemed to have waived the exercise of dili- 
 gence: Goodwin V. Buekman, 11-308. 
 
 69. One who is jointly liable on the orig- 
 inal contract cannot defend on the ground 
 of want of diligence as against the principal 
 joint contractor : McLott v. Savery, 11-323. 
 
 70. Indemnity against judgment; notice: 
 Where a creditor agreed to indemnify a gar- 
 nishee against any judgment which might 
 
826 
 
 GUARDIANSHIP. 
 
 Natural guardian. — Appointment. — Bond. 
 
 be rendered against him in a subsequent ac- 
 tion by the defendant, held, that if the in- 
 demnitor had notice of such subsequent 
 action against the garnishee he would be 
 bound by the judgment therein, and even in 
 the absence of such notice a judgment 
 would be prima facie evidence of his liability 
 under his contract of indemnity: Lucy v. 
 PriAe, 39-26. 
 
 71. Loss or release of securities: While 
 the release of secui'ities held by the creditor 
 will release the guarantor to that extent be- 
 oauBe depriving him of the right of subro- 
 gation, yet where the creditor, although 
 having a lien upon personal property as 
 security, has no responsibility for its custody 
 and care, the mere fact that he does not en- 
 force such lien until the property is lost or 
 destroyed will not release the guarantor: 
 Fuller V. Tomlinson, 58-111; Adams & 
 French Harvester Co. v. Tomlinson, 58-129. 
 
 72. Laches of creditor in recording con- 
 fession of judgment: Where a party guaran- 
 tied a confession of judgment which by an 
 agreement between the other parties without 
 guarantor's knowledge was withheld from 
 record until land upon which it would have 
 been a lien, if recorded, was disposed of, and 
 the principal debtor was insolvent, held, that 
 ■such guarantor had a right to expect that the 
 usual course would be pursued with the 
 confession, and judgment entered thereon 
 within a reasonable time, and that by the 
 laches of the creditor in this respect the 
 guarantor was released : Hancock v. Wilson, 
 46-352. 
 
 GUARDIANSHIP. 
 
 1. Natural guardian: In case of the death 
 of the father, the mother has the right to sue 
 as natural guardian for the earnings of her 
 child : Cain v. Devitt, 8-116. 
 
 2. A minor is not bound by any contract 
 made for him by his parent as natural guard- 
 ian, without formal guardianship having 
 been granted : Jones v. Jones, 46-466. 
 
 3. A step-father of minor children who are 
 members of his family stands in loco parentis 
 to such children : Latham v. 3Iyers, 57-519. 
 
 4. But such person, although their natural 
 guardian, is under no obligation to preserve 
 their property by paying off incumbrances 
 thereon, and is not debarred from acquiring 
 
 title to such propei-ty under foreclosure pro- 
 ceedings : Otto V. Schlapkahl, 57-236. 
 
 As to the right of the parent to custody and 
 control of the person of the child, see Paeent 
 AKD Child. 
 
 5. Appointment of gnardinn: Where 
 there is no parent or guardian qualified, the 
 circuit court is by statute authorized to ap- 
 point a guardian, and the guai-dian thus 
 appointed is the guardian of the person as 
 well as of the property of the ward : Burger 
 V. Frahes, 67-460. 
 
 6. Bond : It is proper to appoint one guard- 
 ian for several wards jointly and to take a 
 bond for their joint security, when the wards 
 hold by common title, as, for instance, as 
 tenants in common : Parsley v. Hayes, 33-11. 
 
 7. Where the guardian gave a joint bond 
 as to four different wards, held, that the sure- 
 ties thereon could not be liable as to the funds 
 received for any one ward to more than a 
 proportional amount of the sum mentioned 
 in the bond : Hooks v. Evans, 68-53. 
 
 8. The duty of passing upon the sufficiency 
 of the guardian's bond devolves upon the 
 court and cannot be performed by the clerk 
 in vacation. Tlierefore, held, that the clerk 
 was not liable in damages for the acceptance 
 of the bond of a guardian appointed in vaca- 
 tion without requiring sureties. The duty 
 of approving the bond should have been per- 
 formed by the court at the term following 
 the appointment : Eeno v. McCully, 65-639 ; 
 Beno V. McCully, 66-730. 
 
 9. The sureties upon a guardian's general 
 bond are not liable for moneys received by 
 him in the sale of the ward's real estate, 
 under the order of the court, a special bond 
 being required in such cases by statute : Madir- 
 son County v. Johnston, 51-152; Bunce v. 
 Bunce, 65-106. 
 
 10. But where a sale of real property was 
 made by a referee in a proceeding for par- 
 tition, held, that the guardian was liable 
 under his general bond for the proceeds of 
 such sale, there being no provision for a spe- 
 cial bond in such case : Hooks v. Evans, 68-53. 
 
 11. Where a guardian is required by order 
 of court to give additional bond, on account 
 of insufficiency of the first bond, the sureties 
 on the additional bond are liable for default 
 of the guardian previous to the giving of the 
 new bond : Douglass v. Kessler, 57-63. 
 
GUARDIANSHIP. 
 
 827 
 
 Powers. — Custody of ward. — Liability. 
 
 12. Powers: The power to manage the es- 
 tate of an Infant can only emanate from the 
 court authorized to appoint a guardian: 
 Young v. Gammel, 4 G. Gr., 207. 
 
 13. "Where a guardian receives notes of 
 third parties in satisfaction of an indebted- 
 ness, and afterwards as guardian receives the 
 money upon such notes, such satisfaction of 
 the original indebtedness is sufficient in 
 equity: Jones v. Jones, 20-388. 
 
 14. Under the statute the powers of the 
 guardian over his ward's property are more 
 limited than at common law. The guardian 
 can only act in pursuance of the direction of 
 the court first obtained, and an act done 
 without such direction will not bind the 
 ward's property: Bates v. Dunham, 58-808. 
 
 15. A guardian cannot loan the ward's 
 money to himself, nor without the order of 
 the court invest it in land : and where, Avith- 
 out authority, money of the wards was thus 
 invested, and the probate court refused to rec- 
 ognize the transaction as binding upon the 
 wards, held, that tlie property did not vest in 
 them but remained in the guardian : McRey- 
 nolds V. Anderson, 69-308. 
 
 16. A lease made by a guardian is invalid, 
 ■ or voidable at least, unless ordered or ap- 
 proved by the proper probate court : Alexan- 
 der V. Buffington, 66-360. 
 
 17. A guardian has no authority to pay, 
 out of the proceeds of the sale of the ward's 
 property, claims of third persons against such 
 ward: Cassedy v. Casey, 58-326. 
 
 18. The guardian has the power, under di- 
 rection of the court, to superintend the 
 education and nurture of the ward, and for 
 that purpose he may pay out such portion of 
 the ward's money as the probate court may, 
 from time to time, order and direct. For 
 this purpose the rents and profits of the real 
 estate, and after that the interest of the 
 ward's money, are to be first resorted to ; but 
 the guardian w:il not be permitted, without 
 an order of the court to that effect, to en- 
 croach upon the principal sum of the ward's 
 estate. As a general rule the expenses of the 
 ward must be kept within the income of the 
 ward's estate : Foteaux v. Lejjage, 6-123. 
 
 19. Where the wai-d has received no con- 
 sideration for a conveyance, the guardian 
 may bring action for him to set the same 
 aside without first procuring an order of 
 
 court authorizing him to do so, and without 
 any formal act of revocation : Oates v. Car- 
 penter, 43-152. 
 
 20. In such a case, if the validity of the 
 guardian's ai^pointment is not properly put 
 in issue, evidence that the ward was not an 
 inhabitant of the county at the time of the 
 guardian's appointment, and that he had no 
 foreign guardian, is not admissible : Ibid. 
 
 21. A guardian has authority to compro- 
 mise a suit for his ward upon obtaining leave 
 of court, and notice to the ward of an appli- 
 cation for such permission is not essential, 
 the proceeding not being one adversary as to 
 the ward : Hagy v. Avery, 69-434. 
 
 22. Custody of ward: The guardian is en- 
 titled to the custody of his ward, and it is 
 not competent for a judge or court in a 
 habeas corpus case to review the proceedings 
 under which the guardian is appointed, nor 
 to inquire whether he should in any manner 
 be relieved from the duties and rights of 
 guardian, and order the custody of the child 
 to be given to another more capable and bet- 
 ter fitted to receive it : Burger v. Fralees, 67- 
 460. 
 
 23. Liability: It is proper to render a 
 personal judgment against a guardian who 
 executes a bond for his ward in his indi- 
 vidual capacity : Oliver v. Townsend, 16-430. 
 
 21. Proceedings to establish a claim against 
 the ward's estate should be brought against 
 the ward : Bently v. Torbert, 68-132. 
 
 25. Where a guardian collected pensions 
 due to his ward, so far as they were neces- 
 sary to support the ward, held, that it was 
 not negligence on his part to allow arrears 
 of pensions to accrue uncollected, although 
 by the subsequent death of the ward the 
 collection of such arrears from the govern- 
 ment was, by reason of the provisions of the 
 statutes of the United States, impossible: 
 Mattox V. Patterson, 60-434. 
 
 26. Where a tax title was conveyed to the 
 guardian as such, held, that tlie conveyance 
 inured to his ward's benefit, and that sub- 
 sequent j)urchasers of the property from the 
 guardian were chargeable witJi notice of the 
 rights of the ward: Earikin v. Miller, 43-11. 
 
 27. Where a person who had stood in loco 
 parentis to a minor and was his guardian, 
 soon after the coming of age of the minor, and 
 before he had become emancipated from the 
 
828 
 
 GUARDIANSHIP. 
 
 Sale of property. — Notice. 
 
 habit of obedience and deference, secured an 
 unconscionable contract from him by the 
 exercise of authority and solicitation, or by 
 fear excited by false representations, held, 
 that such contract would be regarded as 
 procured by undue influence and would be set 
 aside in a proper action: Tucke v. Budkholz, 
 43-415. 
 
 28. Sale of property: A father merely as 
 natural guardian has no authority to sell 
 land of his child, even when authorized to 
 do so by order of the probate court, and a 
 deed made by him wiU not be valid, even as 
 against him when he subsequently acquires 
 the title by inheritance from the chM: 
 Shanks v. Seamonds, 24^131. 
 
 29. A sale or mortgage of the ward's 
 property will cover a reversionary interest 
 therein owned by the ward, although he 
 does not have a fee-simple title : Foster v. 
 Young, 35-37. 
 
 30. Authority of court to sell or mort- 
 gage: Where the application to the court is 
 for power to sell, the court has no jurisdic- 
 tion to make an order authorizing the guard- 
 ian to mortgage the property: McMannisv. 
 Bice, 48-361. 
 
 31. The term " mortgage " in such connec- 
 tion means the' granting of an estate, as 
 pledge for the payment of money, without 
 reference to the form which the grant as- 
 sumes : Foster v. Young, 35-37. 
 
 32. Application for authority to sell: A 
 general averment in the petition, in regard 
 to the necessity of a sale of the ward's prop- 
 erty, is sufficient to give the court jurisdic- 
 tion to order such sale : Bunoe v. Bunce, 59-533. 
 
 33. When the petition for authority to sell 
 alleges the necessary jurisdictional facts, it 
 is not requisite, after the hearing is had, that 
 the final order by the court should recite 
 them in detail: Pursley v. Mayes, 32-11. 
 
 34. Where the petition in an application 
 for leave to sell did not set out the names of 
 the wards, but described them simply as 
 heirs, although the notice was to them by 
 name and was served upon each, held, that 
 the defect was not jurisdictional, and that 
 proceedings thereunder could not be collater- 
 ally attacked, especially where the minor 
 heirs named were the only ones, and the 
 whole record showed that they were suffi- 
 ciently named and described : Ibid. 
 
 35. Notice: The notice is essential to the 
 jurisdiction of the court ; without it the sale 
 will be void ; but a defective notice wiU be 
 sufficient to give jurisdiction, and the pro- 
 ceedings thereunder cannot be collaterally 
 attacked : Lyon v. Vanatta, 35-531. 
 
 36. The proceeding for the sale of the 
 ward's property is not in rem, but an adver- 
 sary proceeding, and a sale without the notice 
 required by law is void for want of jurisdic- 
 tion: Ibid. 
 
 37. A notice fixing the time for hearing at 
 a time not during a term of court, or which 
 does not fix any time, is no notice, and pro- 
 ceedings thereunder will be void: Ibid.; 
 Haws V. Clark, 37-355. 
 
 38. If there is no service of notice, the ijro- 
 ceedings will be void: Rankin v. Miller, 
 43-11. 
 
 30. But if there is defective service, which 
 is by the court held sufficient, any error in 
 such holding cannot be the subject of col- 
 lateral attack : Pursley v. Hayes, 32-11, 38. 
 
 40. Where the notice of the sale contained 
 an entirely erroneous description of the prop- 
 erty, held, that the sale was entirely void. 
 The fact that the court has properly acquired 
 jurisdiction to appoint a guardian will not 
 render subsequent want of notice as to the 
 sale a mere irregularity. Jurisdiction as to 
 the one matter does not necessarily confer 
 jurisdiction as to the other: Frazier v. Steerir 
 rod, 7-339. 
 
 41. Where actual personal service of no- 
 tice upon a minor was shown, and it ap- 
 peared that the court had determined that 
 the service had been duly made, as provided 
 by law, and such determination was of rec- 
 ord, held, tliat even though it did not appear 
 that a copy of the petition was filed, as re- 
 quired by statute, the proceedings were not 
 void : Bunce v. Bunce, 59-533. 
 
 42. Under a statute requiring notice to a 
 minor of an application by his guardian for 
 sale of his lands, held, that in the absence of 
 proof of notice, or the finding by the court 
 that notice had been given, the proceedings 
 were void and no title passed: Bankin v. 
 Miller, 43-11. 
 
 43. Discretion to order sale: A refusal 
 by the com-t to order a sale when proper 
 grounds therefor ai-e shown is an error 
 vvlucli will be cx)rrocted on appeal. The dis- 
 
GUARDIANSHIP. 
 
 829 
 
 Sale of property. 
 
 cretion with which the court is clothed is not 
 absolute, but a legal discretion : Dickinson v. 
 Hughes, 37-160. 
 
 ii. Abatement: The proceedings for the 
 sale are not abated by the resignation of the 
 guardian who files the petition and the ap- 
 pointment of another guardian: Wade v. 
 Carpenter, 4-361. 
 
 45. Bond: Failure to give the bond re- 
 quired in case of authority to sell will not 
 render the sureties upon the guardian's gen- 
 eral bond hable for the proceeds of property 
 sold by order of the court : Bunce v. Bunce, 
 65-106. 
 
 46. The sureties on the general bond are 
 not Uable for default of the guardian with 
 reference to funds coming into his hands 
 from the sale: Ibid.; Madison County v. 
 Johnston, 51-153. 
 
 47. While it would be better to make the 
 guardian's bond payable to the parties inter- 
 ested, the fact that it is payable to the county 
 will not vitiate it, nor will the fact of its be- 
 ing thus made payable, or the failure of the 
 judge to enter of record its approval, invali- 
 date the title derived from the sale : Pursley 
 V. Hayes, 33-11. 
 
 48. Action on the bond cannot be brought 
 until the guardian has failed to obey some 
 order of the court in respect to the proceeds 
 of the sale : ff Brian v. Strang, 43-643. 
 
 49. Where real estate was sold by the 
 guardian under order of court for the pur- 
 pose of investing the proceeds, and on the 
 settlement the guardian was ordered to pay 
 over to the ward a sum in excess of the 
 amount received from the sale of the real es- 
 tate, held, that the surety on the bond for 
 the sale was liable for the amount received 
 therefrom, although in the settlement it did 
 not expressly appear what portion of the 
 amount ordered to be paid over was received 
 from the real estate : MaWilliams v. Kalbach, 
 55-110. 
 
 50. Representations made by the guard- 
 ian at a sale of real property on his appHca- 
 tion, with reference to the legal title, which 
 was a matter of^record, held no defense in 
 an action against the purchaser for the price : 
 Mndley v. Eiohardson, 46-103. 
 
 51. Approval of sale: The approval of the 
 sale by the court as requu-ed by the statute 
 IS not a mere formality but is essential to its 
 
 vahdity. The approval is of the sale and not 
 merely of the deed : Wade v. Carpenter, 4- 
 361. 
 
 .52. The record in a particular case held to 
 sufficiently show the approval of the mort- 
 gage made by order of the court : McMannis 
 V. Rice, 48-361. 
 
 53. Under a former statute allowing the 
 clerk of the probate court to transact, in the 
 absence of the judge, all probate business not 
 requiring notice, subject to the supervision 
 and approval of the judge, lield, that the in- 
 dorsement upon the deed of approval by the 
 clerk of the sale and deed, and the approval 
 by the judge of the sale when reported by 
 the guardian, constituted a sufficient ap- 
 proval to render the deed valid : Bunce v, 
 Bunce, 59-583. 
 
 54. It is at least doubtful whether, between 
 the time of sale and the approval of the deed, 
 the purchaser has any taxable interest in the 
 property sold : Ordway v. Smith, 53-589. 
 
 65. Presumption of regularity: In the 
 absence of anything in the record showing 
 the order of sale or the sale itself to be void, 
 the proceedings will be presumed regular: 
 Pursley v. Hays, 17-310. 
 
 56. Cannot be attacked collaterally: If 
 the court has jurisdiction of the subject- 
 matter and the pai-ties, its judgment, in the 
 absence of fraud, is conclusive and cannot 
 be collaterally attacked: Pursley v. Hayes, 
 33-11. 
 
 57. Where jurisdiction has attached and 
 a sale has been approved, it cannot be 
 successfully attacked in a collateral proceed- 
 ing alleging the want ot a sale bond : Bunce 
 V. Bunce, 59-533. 
 
 68. Where it appears that there was serv- 
 ice of notice, and the record of the court re- 
 cites that notice, according to law, has been 
 given, the regularity of the manner of giv- 
 ing notice cannot be inquired into collater- 
 ally: Wade V. Carpenter, 4-361. 
 
 59. As to the validity of proceedings as af- 
 fected by defect in the notice, and as to what 
 presumptions are to be indulged in in favor 
 of their regularity, see Qooper v. Sunderland, 
 3-114. Also, on a parallel question, see 
 Shawhan v. Loffer, 34^317. 
 
 And further on this point, see Jurisdic- 
 tion, IV, b. 
 
 60. The validity of the gale cannot be at- 
 
830 
 
 GUARDIANSHIP. 
 
 Sale of property. — Accounting by guardian. 
 
 tacked collaterally on account of insufficiency 
 of the oath of the guardian : Frazier v. Steen- 
 rod, 7-339. 
 
 61. Revocation by ward: A minor, who, 
 after attaining his majority, with full knowl- 
 edge of all the facts attending the sale of his 
 property by the guardian, and its alleged in- 
 validity, and of his rights in the premises, 
 elects to receive and still retains the purchase 
 money, thereby ratifies the sale and is es- 
 topped from claiming that it is void : Pursley 
 V. Hays, 17-310 ; Deford v. Mercer, 34-118. 
 
 62. Setting aside sale: A petition to set 
 aside a guardian's sale is not subject to de- 
 murrer on account of failure to tender therein 
 repayment of the purchase money, it not ap- 
 pearing but that by receipt of rents and 
 profits, or in some other manner, the right 
 to claim such repayment has been extin- 
 guished: Washhumv. Carmichael, 32-475. 
 
 63. Limitation of action attacking sale: 
 In order that a party may avail himself of 
 the statutory limitation of five years upon an 
 action questioning the validity of a guard- 
 ian's sale (Code, § 2265), he must show that 
 he has been in continuous possession of the 
 property for five years : Ibid. 
 
 64. The limitation does not apply when 
 the sale is entirely void : Ibid. ; Rankin v. 
 Miller, 43-11. 
 
 65. But if the sale is made pursuant to an 
 order of the court having jurisdiction, it can- 
 not be attacked after five years for irregular- 
 ities in the proceedings: Pursley v. Hayes, 
 23-11. 
 
 66. The limitation has no apphcation to 
 appeals or other proceedings bringing the 
 matter of the validity of the sale up for 
 review in the superior court: Ibid. 
 
 67. Nor does it prevent the heir from 
 questioning, after five years, the validity of a 
 sale by a person having no pretense of 
 authority as guardian, or one where there 
 has been no notice to the heir, and which is 
 therefore made without jurisdiction, and 
 where no possession has been taken under 
 the purchase: Ibid. 
 
 68. A purchaser under a guardian's sale 
 who has been in possession for five years 
 from the time of sale wiU be protected from 
 objections as to the 'regularity of the sale, 
 not jurisdictional in character, especially 
 when raised in a collateral proceeding: Ibid. 
 
 69. Accountiiig- 1)} guardinn ; support of 
 ward: A guardian who stands inloco paren- 
 tis toward the wai'd, being entitled to the 
 ward's services, is responsible for the ward's 
 support and maintenance and cannot charge 
 therefor in his account as guardian : Brad- 
 ford's Heirs v. Bodfish, 39-681. 
 
 JO. Where the guardian of minor children, 
 after his appointment, married their mother 
 and took them with her into his own family, 
 where they were provided for as his own 
 children and rendered him such services as 
 children generally render their parents, held, 
 that notwithstanding the general i-ule that a 
 guardian standing in loco parentis toward 
 the ward cannot in ordinary cases have com- 
 pensation for the ward's maintenance, an al- 
 lowance made under the particular facts for 
 the support of the wards would not be set 
 aside upon appeal : Latham v. Myers, 57-519. 
 
 71. The fact that the record of an order 
 made upon the application of a guai-dian 
 giving him an allowance forthemaiotenance 
 of the wards is imperfect or wanting will 
 not prevent him from having credit for an 
 expenditure on that account approved by 
 the court : Ibid. 
 
 72. Claims for support of the ward may 
 be allowed by the probate court without 
 notice to the wai'd. Such pi-oceedings are not 
 adversary, but the court simply directs the 
 guardian in the discharge of his duty as it 
 would its officers: Brewer v. Stoddard, 49- 
 379. 
 
 73. To justify an allowance being made 
 from the ward's funds for past support by 
 the parent, all the facts necessaiy to a future 
 allowance must be shown, and a satisfactory 
 showing must be made why application for 
 such allowance -was not made in advance: 
 Welch V. Burris, 29-186. 
 
 74. Pension money granted to the ward's 
 father while living, and passing to the ward 
 on Ms death, is not exempt from liabUity for 
 the ward's support : Ibid. 
 
 75. Separate accounts: It is unquestion- 
 ably the duty of the guardian, when there 
 are more wards than one, to keep the account 
 of each one separate and to keep the estate 
 of each to itself: Foteaux v. Lepage, 6-123. 
 
 76. If judgment is to be rendered against 
 the guardian in such case, it should be for 
 such sum, to be ascertained by the court, as 
 
GUARDIANSHIP. 
 
 831 
 
 Report of guardian. — Settlement. — Compensation. 
 
 each ward is entitled to, and not for the 
 whole amount in his hands due to all the 
 wards: Ibid. 
 
 77. Report: The report of the guardian as 
 to his account cannot properly be demurred 
 to. If necessary in order to bring out the 
 facts, a motion for more specific statements 
 should be made and the case determined on 
 the facts thus shown : Oerdes v. Weiser, 54- 
 591. 
 
 78. The fact that an intermediate report by 
 the guardian charges him with money im- 
 properly invested in land in the name of his 
 ward is an error which cannot be corrected 
 on an appeal by the guardian to which the 
 ward is not a party. If the ward should re- 
 tain the title to the property until majority, 
 the charge would be erroneous: Caasedy v. 
 Casey, 58-336. 
 
 79. Where the guardian reports a sale of 
 property and investment of proceeds in other 
 property in the name of the ward, the failure 
 of the ward, untU after coming of age, to 
 disafiBrm such transaction will prevent him 
 from objecting to the report in that respect : 
 
 im. 
 
 80. Settlement: Where the accounts of a 
 guardian have been settled in the probate 
 court and a balance found due him, such set- 
 tlement wiU bind the ward until it is set 
 aside or in some way lawfully attacked, and 
 a proper expenditure in behalf of the ward 
 cannot be called in question in an action by 
 the guardian against the ward to recover the 
 amount found to be due on such settlement : 
 King v. King, 40-120. 
 
 81. "Where the ward after becoming of age 
 accepted from the surety on the guardian's 
 bond, in settlement of the indebtedness of the 
 guardian, at that time deceased, a note re- 
 ceived by the guardian for money of the 
 ward loaned by such guardian, lield, that the 
 fact that at the time such note was accepted 
 the maker and surety thereon were insolvent, 
 that fact not being known to the parties, 
 would not prevent the acceptance being 
 binding upon the ward: Smith v. McKee, 67- 
 161. 
 
 82. Following proceeds: Where the 
 guardian has improperly invested the money 
 of the ward, the latter may, at his election, 
 instead of holding the guardian accountable, 
 follow the money and claim the property in 
 
 which it has been invested : Robinson v. Rob- 
 inson., 23-437. 
 
 83. The death of the ward terminates the 
 power of the guardian. The settlement of 
 the estate then devolves upon the adminis- 
 trator. Claims against the ward must be 
 presented against the administrator of his 
 estate: Ordway v. Phelps, 45-379. 
 
 84. Llaliility for iuterest: Where the 
 guardian has failed to account and has en- 
 croached upon property of the ward's es- 
 tate, he may be required to pay interest, 
 compounded at the end of each year, at six 
 per cent. . Foteaux v. Lepage, 6-123. 
 
 85. Where certain charges of a guardian 
 for support of his ward were disallowed, held, 
 that as it was the duty of the guardian to in- 
 vest the money, he should be charged with 
 six per cent, interest thereon compounded 
 annually : Bradford's Heirsv. BodJish,',3Q-^. 
 
 86. Where a guardian has improperly 
 expended money of the ward in his hands, 
 he may be charged with the amount received 
 and thus improperly expended with . eight 
 per cent, interest thereon with annual rests : 
 In re Mells, 64^391. 
 
 87. Compensation: Where a guardian had 
 delayed for ten years to make a settlement,, 
 and instead of putting out the money of the 
 ward at interest had used the same him- 
 self, held, that although he could not be 
 charged a higher rate of interest than six per 
 cent, compounded annually, he might prop- 
 erly be denied compensation: Foteaux v.. 
 Lepage, 6-123. 
 
 88. The action of the court in allowing 
 the guardian no compensation, but in lieu, 
 thereof not charging interest on the balance 
 in his hands, JlcM proper : Mattox v. Patter- 
 son, 60-484. 
 
 89. Action against gaardian and sureties : 
 Under the statute the court has the sole right 
 to determine what is a guardian's duty under 
 the law, and nothing but a failure to obey its 
 orders can be deemed a breach of the guard- 
 ian's bond : O'Brien v. Strang, 42-643. 
 
 90. The surety's liability on the bond does 
 not commence simultaneously with the 
 ward's majority, but only upon failure of the 
 guardian to comply with an order of the 
 court in a proper proceeding for settlement of 
 his accounts : IMd. 
 
 91. A failure to pay over money by the- 
 
832 
 
 GUARDIANSHIP— HABEAS CORPUS. 
 
 Persons insane or of unsound mind. — Civil proceeding. 
 
 guardian will not constitute a breach of his 
 bond until the guardianship accounts are 
 settled, or until he has failed to dhvy a man- 
 date of the court requiring him to account : 
 Vermilya v. Bunce, 61-605. 
 
 92. A surety in a guardian's bond should 
 not be absolutely discharged upon his appli- 
 cation, upon the minor's coming of age. The 
 most that he is entitled to is a conditional 
 discharge. If, after the majority of the ward 
 and the final settlement with the guardian, 
 the ward unreasonably delays to enforce 
 what rights he may have against sureties on 
 the bond, he may, upon application of the 
 sureties, be ordered to eommence and prose- 
 cute proceedings within a time to be named, 
 and in the event of a failure to do so the 
 sureties may be regarded as discharged: 
 Ibid. 
 
 93. Right of action by a ward against his 
 guardian arises when the guardianship ceases 
 by the guardian's resignation or removal, or 
 by reason of the ward arriving at full age, 
 and such an action must be brought within 
 the time limited by statute thereafter ; Hum- 
 phreys V. Mattoon, 43-556. 
 
 94. The guardian having conveyed certain 
 land in trust for his ward as partial security 
 for the ward's funds in his hands, but which 
 w^as not actually purchased with such funds, 
 held, that the ward having a remedy against 
 his guardian and his bondsman should pur- 
 sue such remedy and not insist upon the 
 trust deed as against creditors seeking to 
 make their debts out of such property: 
 Thomas v. Pyne, 55-348. 
 
 95. Guardianship of persons insane or of 
 unsound mind : The appointment of a guard- 
 ian for an insane person is based upon the 
 fact of insanity: Wilson v. Shoriek, 21-333. 
 
 96. The appointment of a, guardian upon 
 a petition chai-ging insanity will be regarded 
 as a determination of the fact of insanity: 
 Oclccndon v. Barnes, 43-615 ; Seerley v. Safer, 
 68-875. 
 
 97. Who deemed of unsound mind: The 
 statutory provision with reference to guard- 
 ianship of persons of unsound rnind relates 
 to a condition different from idiocy, lunacy, 
 or insanity. Weakness of mind is not neces- 
 sarily unsoundness, but there may be a 
 weakness short of idiocy, either congenital 
 or superinduced by disease or old age, that 
 
 amounts to unsoundness: Smith v. Hicken- 
 bottom, 57-733. 
 
 98. A person of unsound mind is one who 
 is incapable of transacting the particular 
 business in hand. It is not necessary that 
 he be insane or a distracted person, and he 
 may be capable of transacting some kinds of 
 business and yet be of unsound mind and 
 incapable of transacting business of magni- 
 tude, or of some degree of intricacy : Seerley 
 V. Sater, 68-375. 
 
 99. Powers and duties: The duties of 
 guardians of insane persons in respect to the 
 management of their property are, by stat- 
 ute, substantially the same as those of guard- 
 ians of minors : Gates v. Carpenter, 43-152. 
 
 100. A tenant renting property belonging 
 to a landlord who is under guardianship will 
 be considered as holding the property under 
 such insane owner, and as having notice of 
 the right? of such owner, and a release by 
 the guardian will not be regarded as defeat- 
 ing the rights of his ward : Thode v. Spofford, 
 65-394. 
 
 101. The guardian of an insane wife has 
 not the power, on her behalf, to waive the 
 right to have her dower interest in the estate 
 of her deceased husband so set off as to in- 
 clude the homestead : Batctiff v. Davis, 64r- 
 467. 
 
 HABEAS CORPUS. 
 
 1. Civil proceeding: A habeas corpus 
 proceeding is civil, not criminal, and should 
 be instituted in the name of the person re- 
 strained, as plaintiff : State v. Collins, 54-441. 
 
 2. Who deemed plaintiff: The person re- 
 strained is to be regarded as the petitioner or 
 plaintiff: Ibid.; Thompson v. Oglesby, 43- 
 598 ; Bivers v. Mitchell, 57-193. 
 
 3. Where to be brought: Under the statu- 
 tory provision that the application must be 
 m^de to the court or judge most convenient 
 in point of distance, etc., to the apphcant 
 (Code, § 3453), the person to be deemed the 
 applicant is the one who^ liberty is restrained 
 and not the one by whom the petition may be 
 presented on behalf of such person, if it is 
 presented by another than the person re- 
 strained : Thompson v. Oglesby, 42-598. 
 
 4. If the proceeding is for the recovery of 
 the custody of a child, it may be brought in 
 
HABEAS CORPUS. 
 
 833 
 
 Jurisdiction. — Military restraint. — Extradition. — Contempt. 
 
 any county wlierein the sworn petition states 
 that tlie child is to be found : Rivers v. Mitch- 
 ell, 57-193. 
 
 6. Jurisdiction: Where the allegations of 
 the petition are sufiS-cient to authorize the 
 writ, the judge acquires jurisdiction of the 
 parties and the subject-matter, and an order 
 made by him will not be void, but at most 
 voidable, and subject only to attack in a di- 
 rect proceeding: Shaw v. MoHenry, 52-183. 
 
 6. Attorney to represent state: Where 
 notice of the proceeding has not been given 
 to the district attorney as required by statute 
 (Code, § 3459), the court has no authoi-ity to 
 appoint an attorney to represent the state 
 and render the county liable for his fees : Mil- 
 ler V. Biiena Vista County, 68-711. 
 
 7. Eight to office: If the oiiicer issuing 
 the writ under which the prisoner is re- 
 strained acted under color of oflSce, the ques- 
 tion whether he is such officer de jure cannot 
 be raised in a habeas corpus proceeding, but 
 aliter, if he is a mere usurper without color 
 of ofiSce. The right to an oiSce cannot be 
 contested in this proceeding : Ex parte Strahl, 
 1&-369. 
 
 8. Military restraint: A return by re- 
 spondent that he is a military officer of the 
 United States holding the person restrained 
 for the crime of desertion awaiting trial by 
 court-martial is sufficient, and the prisoner 
 will be remanded :E'a; parte Anderson, 16-595. 
 
 9. A soldier while on furlough is not 
 within the jurisdiction of the military au- 
 thorities and may be arrested by civil author- 
 ity without conflict : Ex parte McBoberts, 
 16-600. 
 
 10. In extradition proceedings: The 
 court may, on habeas corpus, inquire into the 
 sufficiency of the evidence to support a 
 requisition under the provisions as to extra- 
 dition. The determination of the governor 
 as to the sufficiency of the evidence is not 
 conclusive : Jones v. Leonard, 50-106. 
 
 11. Action of committing: magistrate: 
 The fact that the person arrested and brought 
 before a committing magistrate waives pre- 
 liminary examination does not debar him 
 
 "from the statutory privilege (Code, § 3483) 
 of introducing evidence in a habeas corpus 
 proceeding to question the suflciency of the 
 testimony to warrant his commitment : Cotv- 
 ell V. Patterson, 49-514. 
 Vol. 1—53 
 
 13. A defect in the warrant of commit- 
 ment will not entitle the prisoner to discharge 
 if the court or jury is satisfied from the evi- 
 dence that the prisoner ought to be committed 
 for the offense charged, or any other, and in 
 such case the prisoner should be remanded 
 into custody and a proper order made in rela- 
 tion to the case : Jackson v. Boyd, 53-536. 
 
 13. It is not competent for plaintiff seeking 
 to be released hj habeas corpus trora commit- 
 ment on preliminary examination to state in 
 his petition the substance of the evidence 
 before the committing magistrate, and, by 
 having defendant admit the correctness of 
 such evidence, thereby make up the case 
 which is to be isresented to the court : State 
 ex rel. v. Rosencrans, 65-383. 
 
 14. Where prisoner is held under indict- 
 ment : An indictment is presumptive evidence 
 of the guilt of the prisoner, and if it is for a 
 capital offense, bail may be denied when ap- 
 plied for by habeas corpus. The court can- 
 not be required in such cases to look behind 
 the indictment and consider the evidence on 
 which it was found : Hight v. United States, 
 Mor., 407. 
 
 15. In case of contempt: Imprisonment 
 for disobedience of an order of court which 
 is erroneous only and not void cannot be 
 inquu-ed into by habeas corpus: Ex parte 
 Grace, 13-308. 
 
 16. One court will not interfere by 
 habeas corpus with proceedings in another 
 court to punish a party for contempt, unless 
 such proceedings are so grossly irregular as 
 to be void: Ex parte Holman, 28-88; Robb 
 V. McDonald, 29-830. 
 
 1 7. The supreme court cannot in a habeas 
 corpus proceeding review an order of im- 
 prisonment for contempt and reverse it, un- 
 less the act constituting the alleged contempt 
 was such that it can pronounce as a matter 
 of law that it was not a contempt: State ex 
 rel. V. Seaton, 61-563. 
 
 18. After conviction by a court having 
 jurisdiction, though such conviction be irreg- 
 ular or erroneous, the party is not entitled 
 to the writ, and this is true of a conviction 
 before a magistrate ; and where the defend- 
 ant was found guilty before the proper police 
 magistrate of a city, for violation of an ordi- 
 nance of such city, and sentenced to im- 
 prisonment, held, that he could not be released 
 
834 
 
 HABEAS CORPUS. 
 
 Proceedings in another court. — Custody of child. — Appeal. 
 
 on the gi-ound that the ordinancfi under 
 which he was convicted was invalid : Piatt 
 V. Harrison, C-79. 
 
 19. Proeeediiiss in another court haTin? 
 jurisdiction of the subject-matter and the 
 person cannot be inquired into or corrected 
 by a habeas corpus proceeding: Ex parte 
 Eolman, 28-88; Zellev. McBenry, 51-572. 
 
 20. A judgment which is authorized by 
 law, rendered in a court having jurisdiction, 
 cannot be questioned by habeas corpus. 
 Therefore, held, that a judgment of the lower 
 court could not be attacked by habeas corpus 
 on the ground that the judge had refused a 
 change of venue and a jury trial: Zelle v. 
 McHenry, 51-573. 
 
 21. The order of a judge having jurisdic- 
 tion of the parties and the subject-matter, 
 not being void, but, at most, voidable, cannot 
 be set aside or evaded in a habeas corpus 
 proceeding bafore another court or judge: 
 Shaw V. McHenry, 53-183. 
 
 22. Habeas corpus cannot be invoked for 
 the purpose of obtaining relief for mere 
 errors and irregularities in the action of the 
 court. Where the person has had a trial as 
 to whether he was guilty of the crime for 
 which he is imprisoned, the question of 
 whether he committed the crime cannot be 
 again determined upon habeas corpus, nor 
 can an erroneous taxation of costs be ques- 
 tioned in that manner : State v. Orton, 67-554. 
 
 23. Proceedings in federal court: Astate 
 court cannot, on habeas corpus, release a 
 person held in custody by the United States 
 marshal by order of a federal court: Ex 
 parte Holman, 38-88. 
 
 24. Custody of child: Proceedings by 
 habeas corpus for the custody of a child are 
 not criminal in their naturev The action 
 should be in the name of the person alleged 
 to be illegally restrained, and not in that of 
 the state, and in case of failure to secure the 
 discharge, the costs should not be taxed to 
 the county : State v. Collins, 54-441. 
 
 25. In a proceeding by habeas corpus for 
 the custody of a child, the controlling con- 
 sideration is the interest of the child itself : 
 Fonts V. Pierce, 64-71 ; Drumbv. Keen, 47-435. 
 
 26. But it is the best interests of the child 
 and not its preferences and wishes which 
 are to have a controlling influence: Shaw v. 
 Nachtwey, 43-653. 
 
 27. The rule that the best interests of the 
 child are to be considered is to be applied 
 when the parent, seeking the custody of the 
 child, has either by abandonment or contract 
 surrendered bis personal, legal right to such 
 custody: Bonnettv. Bonneit, 61-199. 
 
 28. In a habeas corpus case it is not proper 
 to review the proceedings for the appoint- 
 ment of a guardian or to inquire whether he 
 ought in any manner to be relieved from the 
 duties and rights of guardianship, or whether 
 the custody of the child should be given to 
 another more capable or better fitted to re- 
 ceive it: Burger v. Frahes, 67-460. 
 
 29. Where a writ was sought to recover 
 the custody of a child from its father, held, 
 that it was not a sufficient answer that he had 
 sent the chUd out of the state, where it did 
 not appear but that he could secure its return 
 if he desired to do so : Rivers v. Mitchell, 57- 
 193. 
 
 30. Method of trial: The trial is to be as 
 in ordinary proceedings : Drumb v. Keen, 47- 
 435. 
 
 31. Appeal: Therefore, upon appeal, the 
 case will not be tried de novo: Shaw v. 
 Nachtwey, 43-653. 
 
 32. The finding of the lower court as to 
 the facts wiU have the effect of a verdict of 
 the jury as iu other cases by ordinary pro- 
 ceeding : Drumb v. Keen, 47-435 ; Jennings v. 
 Jennings, 56-288; Bonnett v. Bonnett, 61- 
 199 ; Fouts v. Pierce, 64-71. 
 
 33. The supreme court will reverse the ac- 
 tion of the lower court as to its finding of 
 facts only where such finding is manifestly 
 unsupported by the evidence : Kline v. Kline, 
 57-386. 
 
 34. But the court may review the correct- 
 ness of the action of the lower court as based 
 upon its finding of facts: Shaw v. Nachtwey, 
 43-653. 
 
 35k Under the Revision, an appeal did not 
 lie from an order by a judge of the supreme 
 court in a habeas corpus proceeding: In re 
 Curley, 34r-184. (But this is now changed by 
 Code, § 3165.) 
 
 30. The officer against whom the action is 
 brought has, it would seem, sufficient inter- 
 est to be allowed to appeal: Jackson v. Boyd, 
 53-536. 
 
 37. The taking of an appeal from an order 
 of discharge and filing a supersedeas bond 
 
HIGHWAYS, I. 
 
 835 
 
 "What constitute ; general jurisdiction. 
 
 does not stay the order of discharge : State v. 
 Kirkpatrick, 54-373. 
 
 3S. Order of discharge: The statutory 
 provision as to certain orders of a judge made 
 in vacation, that they shall be in force only 
 during vacation and the first two days of the 
 ensuing term of court, does not apply to the 
 order in a habeas corpus proceeding made 
 during vacation : Shaw v. McHenry, 52-182. 
 
 39. When an order of discharge is made, 
 no further proceedings are to be had: State 
 V. Kirkpatrick, 54-373. 
 
 40. Costs: Where defendant is successful it 
 is not proper to tax the costs to the county, 
 nor to tlie person restrained where the ap- 
 plication is made by another for his release 
 and It does not appear that the proceedings 
 were brought by his consent. Whether they 
 should be taxed to the person instituting the 
 proceedings, gucere: State v. Collins, 54-^1. 
 
 I 
 
 HALF-BREED TRACT. 
 
 See Public Latvtds, IV. 
 
 HIGHWAYS. 
 
 I. What constitute; oeneeal jukisdic- 
 
 TION. 
 
 II. Peoceedings fok establishment. 
 
 As to highways by dedication or pre- 
 scription, see Dedication. ■ 
 
 III. Control over ; powers and duties of 
 
 SUPERVISORS. 
 
 IV. Road districts; koad taxes. 
 
 I. "What constitute; geneeal jueis- 
 
 DICTION. 
 
 1. Easement: A highway is nothing but 
 an easement, comprehending the right of all 
 the individuals in the community to pass 
 and repass, with the incidental right of the 
 public to do all acts to keep it in repair. The 
 fee remains in the original owner : Dubuque 
 
 V. Moloney, 9-450 ; Overman v. May, 85-89. 
 
 2. The prescriptive right to use material to 
 keep the road in repair does not include the 
 right to take material from the right of way 
 for the repair of other public highways. 
 Therefore, held, that the prescriptive right to 
 span a river with a bridge, and use such 
 bridge, did not include the right to quarry 
 
 stone under the bed of the river under such 
 bridge for general use in the repau- of high- 
 ways : Overman v. May, 35-89. 
 
 3. Nothing passes as incidentto the grant 
 of an easement but what is requisite to its 
 fair and reasonable enjoyment. Therefore, 
 where a party dedicating a street reserved 
 the right to construct a miU-race across it, 
 held, that the reservation should be construed 
 in the same way as the grant of a like privi- 
 lege, and that the party was under obligation 
 to restore the street, as nearly as possible, to 
 its former condition by the construction and 
 maintenance of a bridge across it: Waterloo 
 V. Union Mill Co., 59-437. 
 
 4. What constitutes: Something more than 
 the mere right to use land for the purpose of 
 travel is necessary to constitute a highway. 
 It must be traveled or at least capable of use 
 in that way to make it such: State v. Shinkle, 
 40-131. 
 
 5. By Code, § 1001, bridges are a part of 
 the public highway, and are therefore under 
 the general supervision of the board of super- 
 visors. The board cannot be compelled by 
 mandamus to build, that being discretionary : 
 State ex rel. v. Morris, 43-192. 
 
 Further as to bridges, see infra, g§ 44r-48, 
 121.. 
 
 6. Public highways: It is the duty of the 
 legislature to establish public highways for 
 the passage and intercourse of the people of 
 the state. It may properly provide for the 
 establishment of such highways as are neces- 
 sary to enable every citizen to discharge his 
 duties to the state, have access to market, 
 school, church, etc., and in that case it may 
 properly provide for the taking of private 
 property, although in a particular case but 
 one person is primarily or principally bene- 
 fited : Bankhead v. Brown, 25-540. 
 
 7. A citizen has the right to have access to 
 the public roads, and the public has the right 
 to have access to him, and a road which is 
 the only one between a citizen and the pub- 
 lic may properly be deemed a public road, 
 although he is the only person reached: 
 Johnson v. Board of Supervisors, 61-89; 
 Pagels v. Oaks, 64-198. 
 
 8. Private ways: A former statute (11 G. 
 A., ch. 127), providing for the establishment 
 of roads which were denominated private, to 
 be established on the petition of the applicant 
 
836 
 
 HIGHWAYS, n." 
 
 Proceedings for establishment. 
 
 alone, and at his cost, and which the public 
 was not bound to work or keep in repair, and 
 over which the party securing their estab- 
 lishment might exercise exclusive control, 
 held unconstitutional as authorizing the tak- 
 ing of private property for a private and not 
 a public use : Bankhead v. Brown, 25-540. 
 
 9. Jurisdiction: All the jurisdiction in re- 
 lation to roads and highways formerly exer- 
 cised by county judges is now conferred 
 upon the board of supervisors : Kennedy v. 
 Dubuque, O. & M. R. Co., 34-421. 
 
 10. Under particular statutes, held, that the 
 power to establish a highway within the cor- 
 porate limits of a city existed in the same 
 tribunal which had authority to establish 
 highways outside of such corporate limits : 
 Knowles v. Muscatine, 30-348. 
 
 11. A county has power to grade and im- 
 prove its public roads, and issue warrants in 
 payment therefor: long v. Boone County, 
 33-181. 
 
 II. Peooeedings foe establishment. 
 As to highways by dedication or prescrip- 
 tion, see Dedication. 
 
 12. Petition: The petition for a highway 
 need not follow the precise language of the 
 statute : McCollister v. Shuey, 34-363. 
 
 13. If it asks for the appointment of a 
 commissioner to locate a highway, etc., in- 
 stead of for the establishment of the highway, 
 it is not so materially defective as to invali- 
 date the proceedings: State v. Pitman, 88- 
 253. 
 
 14. Where the notice was that a petition 
 would be presented for a new road, and the 
 petition asked that a commissioner be ap- 
 pointed and the necessary steps taken to open 
 a road, held, that there was a substantial com- 
 pliance with the statute : Stevens v. Board of 
 Supervisors, 41-341. 
 
 15. The petition need not specify the 
 width of the proposed highway. Such speci- 
 fication is surplusage: State v. Wagner, 
 45-483. 
 
 16. A petition wiU not be insufiBoient to 
 give the board jurisdiction, merely because 
 it runs to the county auditor, who is the 
 clerk of the board, instead of to the board it- 
 self, or because it does not expressly ask for 
 the establishment of the road, when its ob- 
 ject is abundantly evident, in that it states 
 
 that the road is needed and asks for the ap- 
 pointment of a commissioner : State v. Bar- 
 low, 61-573. 
 
 17. Under former statutes requiring that 
 the petition for the establishment of a high- 
 way should be signed by at least twelve 
 householders of the county, held, that the 
 absence of an allegation that the petitioners 
 were householders, or of a recital of such fact 
 in the record, was not a fatal defect, if the 
 road was otherwise a legal one; Keyes v. 
 Tait, 19-133. , 
 
 18. Bond: A failure to requke bond as 
 provided by statute will not invalidate the 
 proceedings : Woolsey v. Board of Supervis- 
 ors, 33-130. 
 
 19. If the auditor allows the petition to be 
 filed without a bond, and proceeds to act 
 upon It, his action cannot be said to be with- 
 out jurisdiction, the provision in regard to a 
 bond being simply directory: State v. Bar- 
 low, 61-573. 
 
 20. Location; appointment and action 
 of commissioner: That the officer by whom 
 the commissioner was sworn was not quali- 
 fied to administer oaths is no such irregular- 
 ity that the proceedings will be set aside on 
 that account : Woolsey v. Board of Super- 
 visors, 33-130. 
 
 2 1 . An adverse report by the commissioner 
 ends the proceedings under the petition, and 
 the report of another commissioner appointed 
 by the auditor wouli have no validity : Cook 
 V. Trigg, 53-709. 
 
 22. A report against a road by the commis- 
 sioner is an official determination, and the 
 application cannot be considered as longer 
 pending : Morgan v. Miller, 59-481. 
 
 23. The commissioner has no authority to 
 lay out a highway beyond the termini fixed 
 in the petition, and any proceeding as to a 
 portion of the highway beyond such limits 
 would be void : State v. Molly, 18-535. 
 
 24. The statutory provisions as to setting 
 stakes, etc., in laying out a highway are di- 
 rectory only, and a failure to comply with 
 them will not render the proceedings illegal 
 or void : McCollister v. Shuey, 24r-S62. 
 
 25. Under the provisions of the Revision 
 (§§ 837, 338) an appointment of a commissioner 
 by the clerk in vacation was illegal, and a 
 highway established by him was not a legal 
 highway : Bennett v. Fisher, 26-497. 
 
HIGHWAYS, II. 
 
 8S7 
 
 Proceedings for establishment. 
 
 26. Where it appeared that upon proper 
 petition a commissioner was appointed to 
 view and lay out a road, and that he made a 
 survey and report but that no further action 
 was taken, held, that this was not sufiScient 
 to show the establishment of the highway: 
 Carey v. Weitgenant, 52-600. 
 
 27. Change of location by pi-escription : 
 Where there have been proceedings to locate 
 a highway and it has been established and 
 used as such, pursuant to such proceedmgs, 
 and by mistake the highway as used vanes 
 slightly from the one established, the use 
 will not constitute a prescriptive right out- 
 side of the limits of the established highway : 
 State V. Welpton, 34-144: State v. Gould, 
 40-372; State v. Schilb, 47-611. 
 
 28. Where by request of a laud-owner the 
 supervisor, in opening an established high- 
 way, deflects therefrom upon the land of 
 such owner, and the road so located is worked 
 and used by the public, the action of the 
 owner amounts to a dedication as to the por- 
 tion outside of the established highway.: 
 Ryan v. Kennedy, 62-37. 
 
 29. Where the public have traveled and 
 used a road different from the established 
 highway for the period of prescription, it 
 acquires a right by prescription in the road 
 thus traveled : Kelsey v. Furman, 36-614. 
 
 30. A mistake as to the location of the line 
 used, by reason of which it varies from the 
 section line on which the land-owner sup- 
 posed he was allowing it to be used, wiU not 
 give rise to a presci-iptive right to the road 
 as used, and the owner may correct the mis- 
 take and confine the travel to the intended 
 line without being guilty of obstructing the 
 highway : State v. Crow, 30-258. 
 
 31. The fact that a fence is built along a 
 highway at the time it is laid out and thus 
 remains for twenty years is sufficient evi- 
 dence to show that it is not upon the high- 
 way, although by subsequent location from 
 field-notes, the fence appears to be within 
 the limits of the highway : Cattell v. Wil- 
 helm, 89-288. 
 
 32. Eesurvey: Where the necessary steps 
 were taken to establish a road, but the clerk 
 failed to record the field-notes, %nd no record 
 of the final order was found, held, a proper 
 case for the supervisors to order a resurvey : 
 Bathe v. Bailey, 20-124. 
 
 33. But where a highway has never been 
 in fact established, a resurvey thereof is of 
 no effect : Carey v. Weitgenant, 53-660. 
 
 34. The board cannot vary the line of road 
 as originally surveyed to conform it to a way 
 acquired by prescription. The alterations re- 
 ferred to in the provisions as to resurvey 
 have reference to such changes in the road 
 as have occurred by orders or surveys made 
 after the original survey, and which tend to 
 such confusion that the location of the road 
 is not accurately defined or pointed out by 
 the record : Blair v. Boesch, 59-554. 
 
 35. But it is competent for the board to 
 hear evidence as to where the original survey 
 was actually made, and being satisfied from 
 the evidence that the resurvey is upon the 
 line as originally surveyed, to approve and 
 confirm such survey, although it does not' 
 conform to the original field-notes : Ibid. 
 
 36. Proceedings for resurvey will be void 
 where there was no original establishment of 
 the highway sought to be resurveyed. It is 
 not the office of such proceedings to cure 
 original proceedings which were fatally de- 
 fective: Barnes v. Fox, 61-18. 
 
 37. Width: Under the statute requiring 
 highways to be sixty-six feet in in width un- 
 less otherwise provided, the auditor has no 
 power to establish a highway of less width 
 than sixty-six feet, and if he attempt to do 
 so, the board of supervisors may set aside his 
 action : State v. Wagner, 45-482. 
 
 38. Although the road is established by the 
 auditor, and is less than sixty- six feet in 
 width, if the record of his action is read over 
 to and approved by the board, such action 
 becomes substantially the action of the board, 
 and is proper : State v. Barlow, 61-573. 
 
 39. The fact that the road as established 
 is wider than authorized by statute does not 
 render the order establishing it void. It 
 is an irregularity which cannot be taken 
 advantage of in a collateral proceeding: 
 Knowles v. Muscatine, 30-348. 
 
 40. The statute (18 G. A., ch. 33, McClain's 
 Ann. Stat., 843) authorizing street railways 
 to extend their lines beyond the city limits 
 over highways which are of the width of 
 one hundred feet or more, contemplates and 
 authorizes the establishment of highways 
 more than sixty-six feet in width: Linn 
 County V. Hewitt, 55-505. 
 
83S 
 
 HIGHWAYS, n. 
 
 Proceedings for establishment. 
 
 41. There is no presumption that a high- 
 way originating by prescription is of the 
 •widtli requu-ed in case of highways laid out 
 under the statute. The widtli of such high- 
 way is a question of fact for the jury, to be de- 
 termined from the facts and circumstances. 
 The court cannot, as a matter of law, say 
 that a road acquired by prescription or use 
 is of any particular width beyond such por- 
 tion as is actually used by the public : Davis 
 V. Clinton, 58-389. 
 
 42. Where, by agreement constituting ded- 
 ication of a highway to public use, it was 
 stipulated that the road should be established 
 as it had been used, and the width as thus 
 used was found to be twenty-six feet, held, 
 that the highway as established by the dedi- 
 cation was properly determined to be of that 
 width: Hughv. Haigh, 69-382. 
 
 43. Where an order of the county court 
 establishing a highway was based upon the 
 plat of the commissioner, upon which plat 
 it was described as thirty-three feet in width, 
 held, that it must be presumed to have been 
 intended to establish a highway of that 
 width although not so specified in the order 
 of establishment: State v. Sehilb, 47-611. 
 
 44. Width of bridges: Bridges in a public 
 highway ought to be broad enough to permit 
 all farm machinery to be drawn over them, 
 and for the passage of all vehicles and ma- 
 chinery in use which are drawn upon the 
 public highways: Quintan v. Burton, 61- 
 471. 
 
 45. The action of a board of supervisors in 
 contracting for a bridge of less width than 
 sixteen feet, as required by law (Code,, g 1001), 
 is erroneous simply and not void : Mallory v. 
 Montgomery County, 48-681. 
 
 46. The statutory provision as to the width 
 of bridges is not to be construed to mean 
 that a bridge is not required to be constructed 
 under any circumstances more than sixteen 
 feet in width. If the circumstances require 
 that it shall be of greater width and it is so 
 constructed, the liability for defects thereon 
 will not be limited to sixteen feet but ex- 
 tend to the whole width : Rusch v. Daven- 
 port, 6-443. 
 
 As to liability for defects in bridges, see 
 Municipal Coepohations, III, d. 
 
 Further as to bridges in general, see infra, 
 § is;, and WateeS; IH. 
 
 47. Notice: When notice is given to the 
 persons appearing by the transfer books to be 
 the unconditional owners of the land, and 
 also by publication, the jurisdiction becomes 
 complete. Notice to conditional owners, or 
 others not shown by the transfer books, ia 
 not necessary: Wilson v. Hathaway, 43-173. 
 
 48. Such notice should be served person- 
 ally upon the owner as shown by the transfer 
 books, when he resides in the county, but if 
 he be a non-resident, then upon the actual 
 occupant of the land, although the name of 
 such occupant does not appear from such 
 books : Alcott v. Acheson, 49-569. 
 
 49. It is only residents of the state, in act- 
 ual occupancy of land, who are entitled to 
 personal 'notice. Notice need not be given to 
 a foreign railway company across whose 
 right of way the highway passes, by personal 
 service upon its officers or agents. Pubhca- 
 tion of notice is sufficient in such case. Also 
 held, that as the railway company did not 
 appear from the transfer books to be owner 
 of its right of way, it was not entitled to 
 notice : State ex rel. v. Chicago, B. & Q. R. 
 Co., 68-135. 
 
 50. Error in the description of the starting 
 point of the highway in the petition and no- 
 tice, Ivild sufficient to render the proceedings 
 thereunder void, although such error was 
 discoverable by careful examination on the 
 face of the petition and notice : Butterfidd v. 
 Pollock, 45-357. 
 
 51. Under a previous statute, requiring 
 thirty days' notice to be given of the filing 
 of a petition for the highway, but cojitaining 
 no provision requiring the recording of such 
 notice and proof of posting thereof, held, 
 that the court would be warranted from the 
 evidence of the appointment of commission- 
 ers, and the giving of notice, and the long 
 lapse of time during which the right of the 
 public had remained unchallenged, in infer- 
 ring that the rfequisite proof had been made 
 and lost: Keyes v. Tail, 19-123. 
 
 52. Under such statute, held, that proof of 
 the method of posting the notice might be 
 made to the board of supervisors by parol 
 evidence, and it would be presumed that 
 proof in that manner was made although the 
 affidavits filed showing proof were not suffi- 
 cient : Woolsey v. Board of Supervisors, 33- 
 130; Carr v. Fayette County, 87-608. 
 
HIGHWAYS, U. 
 
 839 
 
 Proceedings for establishment. 
 
 515. In order to enable the auditor to act, it 
 is not necessary that there be filed formal 
 proof of publication of the notice required by 
 statute; his determination that notice has 
 been duly published, while not conclusive, 
 is sufficient to cast upon any one questioning 
 his action, the burden of proving want of 
 pubUcation : Pagels v. Oahs, 64-198. 
 
 54. Under the Revision (§ 834), held, that a 
 recital in the record that due notice had been 
 given was prima facie evidence of that fact : 
 State V. Pitman, 38-253. 
 
 55. The failure to give notice as required 
 renders the action in establishing the high- 
 way void, and notice will not be presumed 
 from the fact of establishment alone : State v. 
 Anderson, 39-374; State v. Weimer, 64^343; 
 McBurney v. Graves, 66-314. 
 
 56. Action of county auditor: The fact 
 that the only claim for damages which is 
 filed is paid will not authorize the auditor to 
 establish the highway, but the hearing must 
 be continued to the next meeting of the 
 board : Ressler v. Hirshire, 53-568. 
 
 5 7. Where an auditor set a day for final 
 hearing one day beyond the limit authorized 
 by statute, and afterward, in a proceeding to 
 enjoin the road supervisor from opening the 
 road so laid out, there was a trial involving 
 the validity of the road, and the opening of 
 the same was perpetually enjoined, held, that 
 the same was a binding adjudication that no 
 road. had ever been established: Dieken v. 
 Morgan, 59-157. 
 
 58. The action of the auditor is subject to 
 review by the board: Brooks v. Payne, 88- 
 363. 
 
 69. An appeal from the action of the 
 auditor will not lie, but only from the action 
 of the board with reference thereto : Newell 
 V. Perkins, 39-244. 
 
 60. Proceedings before the board: Where 
 two applications are, in effect, for the same 
 road, by different routes, they may be con- 
 sidered together : Broimv. Ellis, 36-85. 
 
 61. Where, in a proceeding before the 
 board, one of the members refused to be 
 sworn as a witness unless required to, but it 
 appeared that his evidence, if given, would 
 have been cumulative and the action in the 
 premises was not dependent upon it, held, 
 that the discretion of the board in the matter 
 would not be interfered with : Ibid. 
 
 G2. Dismissal: The proceeding is not for 
 the benefit of the person commencing it, but 
 is by the state for the benefit and advantage 
 of the public, and the petitioner acquires no 
 rights or advantages by it. Therefore, an 
 agreement by him for a consideration to 
 abandon the proceeding is against public 
 policy and void: Jacobs v. Tobiason, 65- 
 345. 
 
 63. The fact that previous proceedings for 
 establishment of a highway have been dis- 
 missed by the board will not bar their right 
 to establish a highway over the same lines, 
 upon a subsequent application: Pagels v. 
 Oaks, 64-198. 
 
 64. Time for hearing: Where final action 
 appeared to have been had at a date subse- 
 quent to the one fixed, held, that it would be 
 presumed that, by proper resolution, action 
 was postponed to the day ijpon which it 
 was had: Woolsey v. Board of Supervisors, 
 33-130. 
 
 65. The fixing of the date for final hear- 
 ing less than sixty days distant is an irregu- 
 larity which will not invalidate -subsequent 
 proceedings, nor render them subject to col- 
 lateral attack : State v. Kinney, 39-826. 
 
 66. Where, upon failure of one of the 
 appraisers to meet with the others on the 
 day fixed, they adjourned instead of filling 
 his place, held, that, in the absence of any 
 proof of prejudice caused thereby, the pro- 
 ceedings would not be treated as erroneous 
 upon a review by certiorari: Johnson v. 
 Board of Supervisors, 61-89. 
 
 67. Condition of establishmeut: Where 
 the establishment is conditioned on the pay- 
 ment of the expenses thereof, it is not nec- 
 essary that the time for such payment be 
 fixed in the order : Brown v. Ellis, 26-85. 
 
 68. Where the proceedings did not defi- 
 nitely locate a portion of the highway upon 
 the ground, but left it to be located by the 
 petitioners, held, that such establishment as 
 to the portion thus left to be located not 
 being shown, the highway could not be 
 deemed established in any part: Barries v. 
 Fox, 61-18. 
 
 69. Where a highway is established upon 
 conditions, it is not to be regarded as fully 
 established so as to become a legal highway 
 until the conditions are complied with: State 
 V. Gloit, 42-56. 
 
840 
 
 HIGHWAYS, II. 
 
 Proceedings for establishment. 
 
 70.. A final order once made as contem- 
 plated by statute acquires the character of an 
 adjudication as to the establishment of the 
 highway and the amount of damages, if any, 
 and the parties cannot again litigate the ques- 
 tion in a new proceeding. The judgment is 
 conclusive until set aside: Hupert v. An- 
 derson, 35-578. 
 
 71. Although the road is estabUshed on a 
 different line from that r.equested and rec- 
 ommended, the action, while it may be er- 
 roneous, will not be void: Davenport Mutual 
 Savings, etc., Ass'n v. Schmidt, 15-213. 
 
 72. Consent to the establishment of a 
 highway will not confer jurisdiction to es- 
 tablish a pai'ticular line contemplated, and in 
 the absence of proper notice the proceeding 
 will be void: Barnes v. Fox, 61-18. 
 
 73. Where a highway was established by 
 consent in pursuance of a written contract 
 executed through mistake of fact, held, that 
 a court of equity might reform and correct 
 the written contract, and enjoin the laying 
 out of the highway as established: Mastelar 
 V. Edgarton, 44r495. 
 
 74. Record: The record with reference to 
 the establishment of a road is admissible in 
 evidence where it shows substantially the 
 same route as petitioned for, and the petition 
 need not be offered to render the record ad- 
 missible, if it appears that it was presented, 
 filed and acted upon : State v. Lane, 26-223. 
 
 75. Vacation of highway: Where the au- 
 ditor acts improperly in establishing a high- 
 way, the board may set aside his action and 
 vacate the highway thus improperly estab- 
 lished : State v. Wagner, 45-482. 
 
 76. The statutory provisions by which the 
 same steps are required to vacate as to estab- 
 lish a highway are not applicable to the va- 
 cation of streets and alleys. The city council 
 has authority to vacate streets and alleys 
 by ordinance: Dempsey v. Burlington, 66- 
 687. 
 
 77. Where two roads were established on 
 the same line, And upon due notice one of 
 them was vacated, held, that such order of 
 vacation would not operate upon both but 
 only upon the road as to which notice was 
 given : Larkin v. Harris, 36-93. 
 
 78. Under the provisions of Rev., §§ 853, 
 854, that if money was advanced for the pay- 
 ment of damages caused by the location of a 
 
 highway, the highway could not be discontin- 
 ued without repayment of such damages, and 
 that the claim for the refunding of the dam- 
 ages was a lien on the land covered by the 
 highway, held, that an action in equity to 
 recover the amount paid to the land-owner 
 for a highway afterwards discontinued might 
 be maintained : Brown v. Bridges, 36-279. 
 
 79. Damages : In estimating the damages 
 resulting from the fact that the location of a 
 highway will render the construction of fences 
 by the adjoining property owner necessary, 
 the jury may be limited to considering the 
 cost of constructing such fence as is proper 
 under the circumstances, and should not es- 
 timate the vcost of a fence sufficient to turn 
 sheep and hogs, they not being permitted to 
 run at large. The fact that a fence which 
 will become necessary upon the establish- 
 ment of a highway will be of advantage 'to 
 the owner cannot be taken into consideration 
 iu estimating his damages : Bland v. JSixen- 
 baugh, 39-532. 
 
 80. It is improper in estimating the dam- 
 ages to allow the owner as part of his com- 
 pensation a certain amount for fence tfliereby 
 made necessary. If by the establishment of 
 the road the land is thrown open and left un- 
 f enoed, this fact may enter into the considera- 
 tion in determining the depreciation in value 
 of the remaining premises. But the owner 
 should not be allowed for the cost of fence, 
 as such : Hanrahan v. Fox, 47-102. 
 
 81. One of the owners in common of land 
 may recover damages caused by the estabUsh- 
 ment of a highway to the extent of his own- 
 ership, although no claim for damages is 
 made by the other one : Ihid. 
 
 82. If the land-owner, after the assessment 
 of damages and pending an appUcation to es- 
 tablish the road, erects a fence upon the pro- 
 posed highway, he cannot have damages for 
 the removal thereof allowed to him on appeal : 
 Holton V. Butler, 22-557. 
 
 83. Timber growing upon the land appro- 
 priated for the purpose of a puMio highway 
 remains the property of the former owner, 
 and is not to be taken into account in esti- 
 mating his damages : Beaton v. Polk County, 
 9-594. 
 
 84. It is the duty of the jury assessing the 
 compensation for real estate appropriated to 
 the use of the public as a street, to personally 
 
HIGHWAYS, II. 
 
 841 
 
 Proceedings for establishment. 
 
 examine the premises: Des Moines v. Lay- 
 man, 31-153. 
 
 85. Damages for relocation: The true 
 rule for estimating damages in case of re- 
 location of a highway o%'er land of the same 
 party is to determine the amount which the 
 damages for the new or relocated line would 
 exceed the damages sustained by reason of 
 the old one: Jewett v. Israel, 35-361. 
 
 86. And this rule is applicable whether 
 damages for the location of the first line 
 were allowed or not. But the damages by 
 reason of the location of the new line are 
 not to be diminished by reason of advan- 
 tages and benefits which tend to increase the 
 value of the land to be set off against dam- 
 ages caused by the relocation: Israel v. 
 Jewett, 39-475. 
 
 87. Damages for vacation: A party whose 
 right to the use pf a highway is simply that 
 enjoyed by the general public cannot recover 
 damages for its vacation, whether his land 
 abuts upon a part of the highway not va- 
 cated or upon a portion of the highway 
 actually vacated: Ellsworth v. Chickasaw 
 County, 40-571; Brady v. Shinlde, 40-576; 
 Barr v. Oskaloosa, 45-375. 
 
 88. A claim for damages cannot be con- 
 sidered after the final order of establishment : 
 Smiths V. Dubuque County, 1-493. 
 
 89. Where no claim for damages is filed, or 
 the claim is disallowed because not filed 
 within proper time, or upon consideration of 
 the claim no damages are allowed by the ap- 
 praisers, a property owner cannot object to 
 the establishment of the highway on the 
 ground that his property is taken without 
 compensation. While he has a constitutional 
 right of compensation, it must be claimed 
 and established in the manner pointed out 
 
 , by law : McCrory v. Orisuwld, 7-348 ; Con- 
 nolly V. Oriswold, 7-416; Dimlap v. Pulley, 
 28-469; Abbott v. Board of Supervisors, 36- 
 354. 
 
 90. The land-owner may, by appeal from 
 the appraisement, have the amount of his 
 damages assessed by a jury of twelve. If he 
 fails to take such appeal and have such assess- 
 ment, he cannot afterwards complain that 
 tis property is taken for public use without 
 due process of law : Tharp v. Witham, 65-566. 
 
 91. Review of proceedings by certiorari: 
 The question as to the propriety of establish- 
 
 ing the road, and the legality of the proceed- 
 ings to that end, may be reviewed by cer- 
 tiorari: McCrory v. Orisivold, 7-348. 
 
 !)2. An order establishing a highway is a 
 matter affecting the public only, and an in- 
 dividual can have no interest in that question 
 such as to warrant him in appealing from the 
 order of establishment, but he may be en- 
 titled to an appeal from the action of the 
 board in regard to the allowance of damages : 
 Ball V. Humphrey, 4 G. Gr., 304; Myers v. 
 Simms, 4^500. 
 
 !)3. Upon a writ of certiorari from the 
 proceeding of the board, it is not proper to 
 review its decision upon the question whether 
 the public interests demand a proposed road, 
 or whether it is practicable and expedient to 
 establish it. The circuit court can only de- 
 termine whether the board is proceeding 
 within its jurisdiction or not : Tiedt v. Car- 
 stensen, 61-334. 
 
 94. Where a certiorari proceeding is insti- 
 tuted against the boai'd of supervisors, calling 
 in question their action in establishing a high- 
 way, and such action is held to be illegal, 
 the costs should be taxed, not against the 
 board, but against the petitioners for the 
 highway: Tiedt v. Carstensen, 64-131. 
 
 95. Appeal: The propriety of the action, 
 with reference to the allowance of damages, 
 can only properly be raised by appeal: 
 MoCune v. Swafford, 5-553 ; Warner v. Doran, 
 30-531. 
 
 96. Upon an appeal, not only the amount 
 of damages, but also the right to any dam- 
 ages may be determined: Spray v. Thomp- 
 son, 9-40. 
 
 97. An appeal lies from the action of the 
 board entirely rejecting a claim for damages : 
 Vancleave v. Clark, 37-184. 
 
 98. Therefore, held, that an appeal from 
 the action of the board in disallowing a claim 
 for damages on the ground that claimant 
 was not tlie owner of the land, but in which 
 it was expressly stated that no objection was 
 made to the amount of the damages assessed 
 by the jury, properly raised the question as 
 to the correctness of the action of the board 
 in rejecting the claim for damages : Ibid. 
 
 99. An order for the establishment of the 
 highway conditioned upon the payment of 
 damages is such a final order as may be ap- 
 pealed from. It is not necessary to wait for 
 
842 
 
 HIGHWAYS, H. 
 
 Proceedings for establishment. 
 
 the unconditional order which follows the 
 payment of the damages: McNiohols v. Wil- 
 son, 42-383. 
 
 1 00. The fact that petitioners for the high- 
 way have renounced all right thei'eto that 
 they might have by the action of the boai-d 
 in making the location conditional upon 
 their payment of the damages assessed, does 
 not defeat the right of the claimant to prose- 
 cute his appeal from the assessment of dam- 
 ages, whei'e petitioners do not entirely retire 
 from the controversy and renounce all bene- 
 fits which may arise fi'om any action in the 
 premises : Ibid. 
 
 101. Under previous statutory provisions 
 allowing the county auditor to act in the 
 matter of establishing highways, subject to 
 the final approval of the board of supervis- 
 ors, held, that an appeal would not lie from 
 the orders of such auditor, but only from the 
 final action of the board : Neioell v. Perkins, 
 39-344. 
 
 102. Nolice of appeal: The twenty days 
 within which notice of appeal may be served 
 commences to run from the time of making 
 the conditional ox-der for the establishment 
 of the highway, upon payment of damages, 
 and not from the making of the final uncon- 
 ditional order, after such damages have been 
 paid : McJSHchols v. Wilson, 43-385. 
 
 103. Where a claim for damages is disal- 
 lowed by the commissioners, and its payment 
 is not required by the order establishing the 
 highway, the statute (Code, § 959j does not 
 require that service of notice of an appeal by 
 the claimant be made upon the petitioners: 
 Raymond v. Clay County, 68-130. 
 
 104. Appearance: Where the notice is 
 served within twenty days, and the only ob- 
 jection is as to the sufficiency of proof of 
 such service, an appearance and objection to 
 the service confers jurisdiction: Libbey v. 
 Mcintosh, 60-339. 
 
 105. If the notice is not served upon the 
 applicant within proper time, he may appear 
 and move to dismiss the appeal, and such 
 appearance will not confer jurisdiction nor 
 waive his rights: Spurrier v. Wirtner, 48- 
 486. 
 
 100. Parties to the appeal: It is not 
 proper to make the road itself defendant in 
 - the appeal : Myers v. Old Mission, etc., Bead, 
 7-315. 
 
 107. The county is not a proper party to 
 the appeal unless the damages have been 
 ordered paid out of the county treasury, in 
 which case the statute provides that the county 
 shall be defendant : Deaton v. Polk County, 
 9-594. 
 
 108. Although a claim for damages is dis- 
 allowed and no order for its payment made 
 in establishing the road, the county should 
 be made defendant on an appeal by the 
 claimant: Baywond v. Clay County, 68-130. 
 
 10!). Transcript: The fact that the tran- 
 script is made out and filed with the clerk of 
 the circuit court before the service of the 
 notice of appeal upon the auditor is a mere 
 in-egularity in no manner affecting the juris- 
 diction of the court : Libbey v. Mcintosh, 60- 
 329. 
 
 110. Filing fee: A rule of court provid- 
 ing that, upon failure of appellant to pay 
 the filing fee, appellee might pay it and 
 have the appeal dismissed, held not applica- 
 ble where appellant had paid the fee before 
 motion to dismiss by appellee was filed: 
 Cole V. Laub, 35-590. 
 
 111. Trial of the appeal: The owner of 
 the land is entitled to have his damages 
 assessed anew upon appeal although no 
 damages whatever were allowed by the ap- 
 praisers : Deaton v. Polk County, 9-594. 
 
 112. The question as to the amount of 
 damages may be tried de novo, upon appeal: 
 Prosser v. Wapello County, 18-337. 
 
 113. The appellant is entitled to a new as- 
 sessment of his damages by jury upon the 
 appeal : Des Moines v. Layman, 21-153. 
 
 114. It is not necessary, in order to secure 
 a hearing, upon appeal, as to the amount of 
 damages, that a motion shovdd have been 
 made before the board to set aside the report 
 of the appraisers : Sigafoos v. Talbot, 25-214. 
 
 115. It is necessary that the party claim- 
 ing damages on the appeal, if he seeks to re- 
 cover damages to the tract out of which the 
 right of way is taken, should show that he is 
 owner thereof, and if the evidence fails to 
 establish title in him, he can recover only for 
 such immediate and necessary damages as 
 result to him as an occupant of the land: 
 Costello V. Burke, 63-361. 
 
 116. Costs: The recovery of costs by the 
 claimant upon his appeal is not made con- 
 tingent upon whether the amount of his 
 
HIGHWAYS, m. 
 
 843 
 
 Control over ; powers and duties of supervisor. 
 
 damages is increased by the circuit court : 
 Eanrahan v. Fox, 47-102. 
 
 117. Final action after determining 
 damages on appeal: When the amount of 
 damages has been fixed by the trial of the 
 appeal, the board of supervisors may proceed 
 to final action as if that amount had been 
 originally allowed by them: McNichols v. 
 Wilson, 42-385. 
 
 118. If the amount of damages is increased 
 on the appeal, the boax-d may i-econsider 
 their action and refuse to establish the high- 
 way : Nelson v. Ooodykoontz, 47-32. 
 
 119. A c'liriitiTe act to render valid defect- 
 ive proceedings for the establishment of high- 
 ways is constitutional: Bennett v. Fisher, 
 26^97. 
 
 III. Control ovee; powers and 
 
 DUTIES OF SUPEEVISOE. 
 
 120. Strefts: As incorporated towns are 
 given power to provide for grading and re- 
 pairing their streets, they must have control 
 over such streets, and the road supervisors 
 and township trustees have no power over 
 them : Clark v. Epworth, 56-462. 
 
 121. Bridges: It is not the duty of the 
 supervisor to build bridges requiring a large 
 expenditure of money, nor is he liable for 
 failure to keep such bridges in repair when 
 such repair would involve a considerable ex- 
 pense. Such matters are under 'the control 
 of the board of supervisors : Wilson v. Jef- 
 ferson County, 13-181. 
 
 Further as to bridges, see supra, %% 5, 44-46. 
 
 As to liability- of county for defective 
 
 bridges, see Mtjhicipal Cohpokations, III, d. 
 
 122. Liability of snpervisor: A super- 
 visor is subject to the same liability for im- 
 proper or careless exercise of his powers as a 
 city or town is in relation to its streets ; and 
 heW, that he was personally liable for dam- 
 ages to an adjacent land-owner resulting 
 from the diversion of a stream of water from 
 his land, by reason of alteration in the high- 
 way made by the supervisor: McCord v. 
 Sigh, 24-336. 
 
 123. A road supervisor may be guilty of 
 trespass in removing an obstruction, as, for 
 instance, a dwelling-house, if the act is not 
 done for the purpose of opening the highway, 
 but for the malicious purpose of injuring the 
 owner: Wilding v. Hough, 37-446. 
 
 124. A road supervisor may be restrained 
 by injunction from repairing the highway in 
 such a manner as to interfere with the rights 
 or wishes of an adjoining owner: Bills v. 
 Belknap, 36-583. 
 
 125. Obstruction; fences; shade trees, 
 etc. : It is not absolutely necessary that a 
 fence shall be across the track where the 
 travel passes in order to constitute an ob- 
 struction, of the highway, and if the high- 
 way is thereby so obstructed as to render it 
 unsafe or dangerous to public travel, this 
 will amount to a direct obstruction: Mosher 
 V. Vincent, 39-607. 
 
 126. To constitute an obstruction of the 
 highway it is not necessary that it should be 
 rendered impassable; and held, that trees 
 standing near the middle of the highway, so 
 as to render one- half of it impracticable for 
 use, constituted an obstruction which should 
 be removed : Patterson v. Vail, 43-142. 
 
 127. Shade trees which do not obstruct the 
 highway, and the removal of which is not 
 necessary to properly improve it, are not to 
 be removed in opposition to the wishes of an 
 adjoining owner on whose portion of the 
 highway the trees are growing : Bills v. Bel- 
 knap, 36-583; Everett v. Council Bluffs, 
 46-66. 
 
 128. Shade trees at the side of the highway 
 which would not obstruct or interfere with 
 the traveled track, if it were located in the 
 middle of the highway, should be permitted 
 to stand: Quintan v. Burton, 61-471. 
 
 129. Where a hedge was planted after a 
 highway was in use, and for the purpose of 
 fencing between a field and the highway, 
 held, that the planting and maintenance of 
 the hedge amounted to a dedication of the 
 land outside of the hedge for the purpose of 
 the highway, although at the time the hedge 
 was planted a fence for its protection was 
 maintained outside of the hedge : Ihid. 
 
 130. Improvement by supervisor: While 
 the public have a right to the full width of 
 the highway they cannot use it so as to in- 
 jure adjoining property, and if the construc- 
 tion of a bridge at one side of the road would 
 cause injury to the property on that side, the 
 supervisor may be required to build it in the 
 center of the highway : Ibid. 
 
 131. The judgment of the road supervisor 
 must govern as to the construction, etc., of 
 
844 
 
 HIGHWAYS, III. 
 
 Control over ; powers and duties of supervisor. 
 
 the highway, and no one has a right to make 
 a material change in his plans without being 
 guilty of defacing the highway within the 
 meaning of the statute (Code, § 3392|) : State 
 V. Hunter, 68-447. 
 
 132. Injunction against supervisor: The 
 acts of a supervisor in the exercise of his 
 ministerial duties in the construction of 
 bridges, etc., are subject to control by an ac- 
 tion to enjoin the improper exercise of Ms 
 powers : Quinton v. Burton, 61-471. 
 
 133. TIu:eatened illegal action of a su- 
 pervisor in opening a highway, removing 
 fences, interfering with water-courses, etc., 
 in the discharge of his oiBoial duty, may be 
 restrained by injunction : Bolton v. McShane, 
 67-207. 
 
 134. Correction of mistake: Proof that a 
 m.utual mistake as to the line of a highway, 
 as used, by which it varies from that in- 
 tended, and that an obsti'uction in the high- 
 way, as used, is an attempt to correct such 
 mistake, will make the obstruction legal: 
 State V. Crow, 30-258. 
 
 135. Obstructing impassable highway: 
 If the right to use a way is acquired by the 
 public, but its nature is such that the right 
 cannot be exercised on account of natural 
 obstacles, a person cannot be held guilty of 
 the crime of obstructing such highway, as it 
 cannot be said that the public are by his acts 
 prevented from using it: State v. Shinkle, 
 40-131. 
 
 136. A party cannot be prevented by in- 
 junction from closing or obstructing a high- 
 way that is in such condition that it cannot 
 be used by the general pubUo: Prinoe v. 
 McCoy, 40-533. 
 
 137. But where a highway was impassable 
 as laid out, by reason of standing timber, and 
 a track was used for the period of prescrip- 
 tion, crossing the highway at different points, 
 held, that the existence of such natural ob- 
 struction in the highway as laid out would 
 not excuse the obstruction of the traveled 
 track, whether upon the established highway 
 or upon the line used by prescription : State 
 V. McGee, 40-595. 
 
 138. Relief against unlawful obstruc- 
 tion: Equity will afford relief to one spe- 
 cially injured by the erection of an obstruction 
 upon a highway, by directing and requiring 
 its removal and enjoining its continuance. 
 
 Such obstructions are public nuisances and 
 will be abated and enjoined by a court of 
 equity at the suit of the party aggrieved 
 thereby : Hougham v. Harvey, 33-203. 
 
 139. An unlawful obstruction of a public 
 highway is a public nuisance not generally 
 actionable, and a private person has a right 
 of action only when he suffers an injury dis- 
 tinct from the public as a consequence of the 
 wrongful act : Ingram v. Chicago, D. & M. 
 B. Co., 38-669. 
 
 140. A person operating a ferry outside of 
 the city limits cannot maintain an action for 
 damages against the city for failure to keep a 
 street leading to his ferry open and in re- 
 pair. His injuries in that respect are not 
 different from those of the general public: 
 Prosser v. Ottumwa, 42-509. 
 
 141. A party does not, in an action for 
 mandamus, show himself entitled to have a 
 public highway opened by showing that such 
 highway is located near his lands, and that 
 the public travel is upon his lands and not 
 upon the highway. It would not follow that 
 such travel would be upon the highway even 
 if opened : Moon v. Cort, 43-503. 
 
 142. Opening highway: The map which 
 the township clerk is required to furnish to 
 the supervisor, showing the highways within 
 his district, is not essential to the authority 
 of the supervisor in opening a highway, and 
 gives him no additional power: Mosier v. 
 Vincent, 34-478. 
 
 143. Such map is in no legal sense a pro- 
 cess, and is no protection to the supervisors 
 in opening a highway indicated thereon: 
 Campbell v. Kennedy, 34-494. 
 
 144. Notice: The statutory provision as 
 to notice regarding removal of obstructions 
 is applicable in case of obstructions placed 
 in a highway after it is opened, and a fence 
 directly obstructing travel cannot be thrown 
 down without notice, although the party 
 maintaining it may be liable for indictment 
 for obstructing the highway : Mosier v. Vin- 
 cent, 34^478. 
 
 14.5. The reasonable notice required to be 
 given by a supervisor in case of opening a 
 highway is such notice and for such a length 
 of time as, under all the facts and circum- 
 stances of the case, is reasonably proper to 
 enable the party notified to perform the act 
 which the notice is intended to give him op- 
 
HIGHWAYS, IV. 
 
 845 
 
 Boad districts ; road taxes. 
 
 portunity to perform, and in the ordinary 
 manner. It need not be six months in all 
 cases: Blackburn v. Powers, 40-681. 
 
 146. The verdict in a particular case find- 
 ing that a notice of three days for the re- 
 moval of a fence was sufficient notice, held 
 not reversible error in the absence of the evi- 
 dence on which the jury acted: Moslier v. 
 Vincent, 39-607. 
 
 147. The obstructions which the supervisor 
 is authorized to remove in opening the high- 
 way are obstacles, impediments, or hin- 
 drances, or anything impeding progress 
 thereon. They need not be such as to render 
 the highway impassable : Patterson v. Vail, 
 43-142. 
 
 148. The supervisor may be compelled by 
 mandamus to perform the duty of opening 
 the highway as required by statute : Larkin 
 V. Harris, 36-93. 
 
 149. Criminal obstruction: The land- 
 owner is not liable to indictment for obstruct- 
 ing the highway by reason of his not remov- 
 ing fences where a newly established highway 
 crosses his land, at least until he has had 
 reasonable notice from the supervisor to do 
 bo: State v. Ratliff, 33-189. 
 
 150. Failure to remove an obstruction 
 placed in a highway by another, for instance 
 by a former owner, does not, at least in the 
 absence of notice, constitute the offense of 
 obstructing a highway: State v. Robinson, 
 52-228. 
 
 Further as to the crime of obstructing 
 highways, see Criminal Law, §§ 687-698. 
 
 Nuisance : Obstruction of highway consti- 
 tuting, see Nuisance, §§ 13-17. 
 
 IV. EoAD DISTEICTS; EOAD TAXES. 
 
 151. A road district cannot be sued: 
 White V. Road District, 9-203; Wilson v. 
 Jefferson County, 13-181. 
 
 152. District does not include city: The 
 
 power given to township trustees to divide 
 the township into road districts does not ex- 
 tend to such portions as are embraced within 
 a city, and they have no power to levy a road 
 tax in such portions. The city council have 
 control of the highways and streets of the 
 city: Marks v. Woodbury County, 47-453; 
 Bawley v. Hoops, 13-506. 
 
 153. lledistricting': The township trustees 
 may redistrict the township, and if by such 
 redistricting the supervisor of the district 
 becomes a resident of another district than 
 that for which he was elected, his office be- 
 comes vacant : MavxiJc v. Look, 70 . 
 
 154. Expenditui'es by trustees: The town- 
 ship trustees have no authority to contract 
 indebtedness for the purchase of tools and 
 machinery until a tax is levied and set apart 
 for that purpose. They may, after the tax is 
 levied and set apart, anticipate its collection 
 and purchase tools and machinery on credit : 
 Wells V. Grubb, 58-384; Eanlcs v. North, 
 58-396; Revolving Scraper Co. v. Tattle, 61- 
 433. 
 
 155. The funds of which the township 
 trustees are allowed to make such disposition 
 as they may deem expedient for highway 
 purposes are unexpended balances of the 
 money originally set apart by them as the 
 general township fund. All other money is 
 to be expended by each supervisor in the 
 road district in which it is collected, and the 
 fact of its coming into the hands of the clerk 
 upon collection by the county treasurer is a 
 mere incident and does not affect its disposi- 
 tion: Henderson V. Simpson, 45-519. 
 
 156. Powers of clerlE: The clerk may 
 maintain an action for funds belonging to his 
 township in the hands of third persons. If 
 he deposits the funds in his individual name 
 without notice to the banker of their charac- 
 ter, such act amounts to conversion and the 
 deposit belongs to him individually, and if 
 seized by garnishment process under at- 
 tachment on his individual debt, without 
 notice as to the character of the fund, it 
 cannot be recovered back: Long v. Emsley, 
 57-11. 
 
 157. The township clerk is the proper party 
 to bring suit on the supervisor's bond for fail- 
 ure to account for taxes. Such duty does not 
 pertain to the trustees : Wells v. Stomback, 
 59-376 ; Keller v. Bare, 63-468. 
 
 168. District orders: Orders upon the 
 district issued by the township trustees on 
 their settlement with the supervisor are pay- 
 able in money out of the general township 
 fund. If such fund is not sufficient the trust- 
 ees may be compelled to levy a tax for their 
 payment. The provision that they are re- 
 ceivable in payment of road taxes is simply 
 
846 
 
 HIGHWAYS, IV — HOMESTEAD, I. 
 
 Road taxes. — Who may claim exemption of homestead. 
 
 an additional method of payment, and the 
 supervi.sor is not required tp secure his pay- 
 ment in that way: Tobin v. Township of 
 Emmetsburg, 52-81. 
 
 159. Working higliways; exemption; A 
 man who is not able-bodied is not liable to 
 the penalty for not appearing to work on the 
 highway when summoned. The fact that he 
 does not make known his condition when 
 summoned, or sends a substitute who is re- 
 jected as incompetent, will not deprive him of 
 the benefit of his exemption : Martin v. Gadd, 
 31-75. 
 
 1 GO, A failure to notify a tax-payer to work 
 out the portion of his tax which may be paid 
 in work will not defeat the collection of the 
 entire tax : Sioux City & St. P. B. Co. v. Os- 
 ceola County, 45-168, 177. 
 
 101. Levy of tax: Eoa.d taxes may be 
 levied upon the property of railway com- 
 panies although such property is not placed 
 upon the assessor's book : Ibid. 
 
 162. Irregularities in the clerk's return or 
 in the manner of placing the taxes upon the 
 treasurer's books will not invalidate the tax : 
 Cedar Rapids & M. R. R. Co. v. Carroll 
 County, 41-153, 177: Iowa R. Land Co. v. 
 Sac County, 39-134 ; Iowa R. Land Co. v. 
 Carroll County, 39-151, 154. 
 
 103. Collection: Eoad taxes, when col- 
 lected by the county treasurer, become no 
 part of the county fund and cannot be ap- 
 propriated or disbursed by the county. If 
 the collection is illegal, they cannot be re- 
 funded to the tax-payer out of the county 
 revenue, and the county is not liable in an 
 action for their recovery: Stone v. Wood- 
 bury County, 51-533. 
 
 164. Eoad taxes collected by the county 
 treasurer and paid over to the township clerk, 
 except as far as they belong to the general 
 fund, are to be distributed in the same man- 
 ner as other road taxes, without any special 
 action of the township trustees : Henderson 
 V. Simpson, 45-519. 
 
 165. A road supervisor who fails to pay 
 over the proportion of the road taxes col- 
 lected by him, which has been by the trustees 
 apportioned to the general fund, is liable 
 therefor in an action on his bond, although 
 he may have expended for road purposes all 
 the money collected by him: Wells v. Stom- 
 back, 59-376. 
 
 HOMESTEAb. 
 
 I. Who may claim exemption; natdee 
 
 AND EXTENT OF; ABANDONMENT. 
 
 II. Conveyance oe incumbrance of the 
 
 HOMESTEAD. 
 
 III. Claims upon and liens against; how 
 
 ENFORCED. 
 
 rv. Eights of suevitoe; descent. 
 
 I. "Who mat claim exemption; nat- 
 
 UEE AND EXTENT OF; ABANDON- 
 MENT. 
 
 1. Head of family: The surviving widow 
 of the owner of the homestead is as much 
 the head of the family and entitled to con- 
 trol the rents and profits of the homestead as 
 was the husband when living : Floyd v. Ho- 
 sier, 1-513. 
 
 2. A widower withoiit children acquiring 
 and occupying property as a homestead for 
 himself and mother, whom he supported, 
 held to be entitled to the homestead right ; 
 Parsons v. Livingstone, 11-104. 
 
 3. So held, also, as to an unmarried woman 
 who had accepted, protected and was provid- 
 ing for the children of a deceased sister : Ar- 
 nold V. Waltz, 53-708. 
 
 4. The fact that a divorce is granted to the 
 wife, allowing her the custody of the only 
 child, will not deprive the husband of the 
 right to hold a homestead exemption: Woods 
 V. Davis, 34-364. 
 
 5. In what property: Purchase, payments 
 and possession under bond for a deed, con- 
 stitute sufficient ownership to make the prop- 
 erty tho homestead of such purchaser: 
 Stinson v. Richardson, 44-373, 375. 
 
 6. A tenant in common may have a home- 
 stead right in his interest in the undivided 
 premises : Thorn v. Thorn, 14-49. 
 
 7. And this is true even when he has only 
 an equitable title thereto: Hewitt v. Rankin, 
 41-35, 44. 
 
 8. There may be a homestead right in a 
 leasehold interest in real estate so as to ren- 
 der the assignment of the lease, by the hus- 
 band alone, invalid: Pelan v. De Bevard, 
 13-53. 
 
 9. Where there is an exchange of home- 
 steads, and one of the parties remains tem- 
 porarily after the exchange in his former 
 homestead at the will of the other party, 
 
HOMESTEAD, I. 
 
 847 
 
 Who may claim exemption ; nature and extent of. 
 
 his right is less than and antagonistic to the 
 possession required to constitute a homestead : 
 Windle v. Brandt, 55-221. 
 
 10. One partner cannot acquire a home- 
 stead exemption in i-eal estate belonging to 
 the firm in wliich he is a member as against 
 either the claims of firm creditors or co- 
 partners, even though he holds the legal title 
 of the property: Drake v. Moore, 66-58; 
 Hoyt V. Hoyt, 69-174. 
 
 11. One who purchases a pre-emption 
 claim to public lands and takes possession 
 thereof does not, before acquiring title from 
 the government, have such an interest in the 
 property as to support a homestead exemp- 
 tion : De Land v. Day, 45-37. 
 
 12. Where the house used as a home is 
 situated upon lands of the wife, the home- 
 stead may also include land owned by the 
 husband. It is entirely immaterial whether 
 the legal title be in the husband or wife, or 
 whether one of them holds the title to one 
 tract and the other to another tract, where the 
 two tracts are used as a homestead : Lowell 
 V. Shannon, 60-713. 
 
 13. A conveyance of the homestead prop- 
 erty by the husband to the wife does not 
 destroy its character as a homestead nor 
 change the time to which the exemption 
 dates: Green v. Farrar, 53-426. 
 
 14. If under the same roof with the home- 
 stead there shall be a floor or floors, room or 
 rooms, which are not used for the purpose of 
 a homestead, they are no more exempt than 
 if under another roof, and if a portion of the 
 building shall come within the definition of 
 a homestead, and a portion not, then the one 
 portion may be exempt and the other not. 
 The use of other portions of the building can- 
 not make that portion liable which would 
 otherwise be exempt : Rhodes v. McCormick, 
 4-368. 
 
 15. So where the upper story or stories of a 
 building in a city are used by the owner ns a 
 home and the first story is rented for store 
 purposes, the portion rented as store-rooms 
 may be sold under execution, while the por- 
 tion used as a home will be exempt: Ibid.; 
 Mayjkld v. Maasden, 59-517. 
 
 1«. Where tlie owner of a lot and building 
 thereon used the first and fourth floors and 
 the ceUar for business purposes, the value of 
 such portion of the premises being greatly in 
 
 excess of tlie value of the shop which he 
 would be entitled to hold exempt in connec- 
 tion with the homestead (Code, § lOt)?), and 
 occupied the second and third stories for a 
 i-esidence, held, that the jnortions occuiiied for 
 business purposes might be sold under exe- 
 cution : Johnson v. Moser, 66-536. 
 
 1 7. After a portion of a building has thus 
 been sold and the owner remains in occupancy 
 of the other portion as a homestead, the own- 
 ers of the two portions are not tenants in 
 common but are adjoining tenants possessing 
 separate and distinct interests : McCormick v. 
 Bishop, 28-233. 
 
 18. Where a two-story frame building, 
 with cellar, was originally erected for a 
 dwelling-house and occupied exclusively by 
 the owner, who used the first floor for business 
 purposes and the cellar jointly in connection 
 with his business and residence, held, that 
 the whole building was exempt: Wright v. 
 Ditzler, 54-620. 
 
 19. In such case the exemption of the por- 
 tion used for business is allowed on the same 
 principle as where a shop situated within the 
 requisite distance of the dwelling of the 
 person occupying it, is exempt as a part 
 of the 'homestead : Smith v. Quiggans, 65- 
 637. 
 
 20. In such case held, also, that the fact 
 that the use of the lower story for business 
 purposes passed to another person than the 
 owner, the stock being taken possession of to 
 be sold out by such other person, would not 
 defeat the homestead exemption in such 
 lower story, the intention of the owner being 
 to abandon its use for business purposes and 
 occupy it as a part of the residence : Ibid. 
 
 21. Nature of the interest: The wife's 
 homestead interest in property owned by the 
 husband is present, fixed and substantial, and 
 not merely possible, remote and contingent, 
 and is not in general liable to be affected by 
 the omission, neglect or default of the hus- 
 band : Adams i). Beale, 19-61. 
 
 22. Her interest in the husband's property 
 used as a homestead is real property within 
 the meaning of a former statute providing 
 for the redemption from tax sale of the prop- 
 erty of a married woman: Ibid. 
 
 23. The right of the vifife in the homestead 
 is of a higher character, and more in the nat- 
 ure of a vested interest or title, than is the 
 
848 
 
 HOMESTEAD, I. 
 
 Extent of exemption. 
 
 dower right in the other real estate of her 
 husband : Chase v. Abbott, 20-154. 
 
 24. The legal title to the homestead, upon 
 actual occupancy by the husband and wife, 
 does not vest jointly in them. The home- 
 stead title is one of exemption rather than 
 one conferring affirmative rights : Burns v. 
 Keas, 21-257. 
 
 25. Exemption, part of the contract: The 
 homestead law in force at the time a con- 
 tract is made enters into and becomes a part 
 of it, and a subsequent repeal of the law will 
 not impair the rights of parties thereunder : 
 Bridgmanv. Wilcut, 4G. Gr., 563. 
 
 26. Pertains to remedy: The homestead 
 exemption is a part of the remedy, and is not 
 to be regulated by the law of the place of con- 
 tracting : Helfenstein v. Cave, 3-287. 
 
 27. Extent of the homestead: Under the 
 statutory provision (Code, § 1996) that if the 
 number of acres allowed do not amount 
 in value to over $500 the homestead may be 
 increased to that value, held, that the value 
 is to be ascertained on the basis of the fee- 
 simple title. The fact that a person claim- 
 ing a homestead has less than the fee-simple 
 title does not authorize the exemption of his 
 interest in a larger amount of property: 
 Yates V. McKibben, 66-357. 
 
 28. The statutory limitation as to the size 
 of a homestead within a town plat does not 
 apply unless the homestead is situated within 
 the platted portion of a town, and if it is 
 within the limits of a town but remains un- 
 platted, it may be of the same extent as 
 though not within town limits : MeDaniel v. 
 Mace, 47-509. 
 
 2!). So lield where the limits of a town 
 were so extended as to include a homestead 
 previously existing and which was not 
 platted: Finley v. Dietrick, 12-516. 
 
 30. To constitute a town plat in this sense, 
 the plat must be that of a city or incorpo- 
 rated village. The plat of an unincorporated 
 village is not a town plat so as to limit the 
 homestead right therein to one-half acre: 
 Truax v. Pool, 46-356. 
 
 31. In an action attacking a sale on the 
 ground of homestead exemption in the prop- 
 erty sold, the party setting up the exeinption 
 must make such allegations as to the value 
 of the property, and its not being within the 
 Umits of a city or town plat, as are neces- 
 
 sary to show its exemption as a homestead : 
 Helfenstein v. Cave, 3-287; Helfenstein v. 
 Cave, 6-374. 
 
 32. But under present statutes, if any part 
 of the property is a liomestead, and such 
 part is not set oflE before sale, the sale is 
 void : Goodrich v. Brown, 63-347. 
 
 And see infra, %% 206-314. 
 
 33. Other buildings appurtenant: A sta- 
 ble kept for domestic use, in connection 
 with the house, is appurtenant to the home- 
 stead, and exempt without regard to value : 
 Wright v. Ditzler, 54^620. 
 
 34. The homestead cannot include build- 
 ings used as shops, etc., rented to tenants 
 and a source of revenue: Kurz v. Brunch, 
 13-371. 
 
 35. Distinct tracts: The homestead may 
 contain tracts not contiguous, but it must ap- 
 pear that they are " used as part of the same 
 homestead." It is not sufficient for that pur- 
 pose to show that the owner " used, worked, 
 and occupied them : " Seynolds v. Hull, 36- 
 394. 
 
 36. Platting: Failure to plat and record 
 the homestead does not defeat the homestead 
 right : Sargent v. Chubbuch, 19-37 ; Nye v. 
 Walliker, 46-306 ; lAnscott v. Lamart, 46-313. 
 
 37. Nor does the failure to plat deprive the 
 parties of the right to claim more than forty 
 acres by reason of the value not reaching the 
 statutory limit : Green v. Farrar, 53-426. 
 
 38. To render a selection and platting of 
 the homestead valid, the plat must be re- 
 corded : White v. Rowley, 46-680. 
 
 As to platting by officer in sale of execu^ 
 tion, see infra, §§ 206-314. 
 
 39. Occupancy: The exemption of the 
 homestead is based upon its actual occupancy 
 as such, and is not dependent upon the mark- 
 ing out and platting: Yost v. Devautt, 9-60. 
 
 40. Suck marking and platting alone do not 
 give property the character of a homestead; 
 use by the family as a home is essential: 
 Cole V. GUI, 14-537. 
 
 41. Assent of the wife to the action of the 
 husband in fixing the homestead is not es- 
 sential. If he adopts it as his home, the fact 
 of absence of his wife will not make it any 
 the less his homestead: Williams v. Swet- 
 land, 10-51. 
 
 42. The homestead character does not at- 
 tach to property until it is actually occupied 
 
HOMESTEAD, I 
 
 849 
 
 Abandonment. 
 
 and used by the family as a home. The 
 mere intention to occupy, though subse- 
 quently carried out, does not make the prem- 
 ises a homestead until there is actual resi- 
 dence: Charless v. Lamberson, 1-435 ; Christy 
 V. Dyer, 14-438 ; Elston v. Robinson, 23-308 ; 
 Oivans v. Dewey, 47-414. 
 
 48. But where a portion of the furniture 
 was placed in a house which was undergoing 
 repairs and the family moved to the neigh- 
 borhood expecting to occupy it, but on 
 account of repairs not being completed did 
 not actually sleep and eat in the building, 
 held, that it became invested with the home- 
 stead character : Neal v. Coe, 35-407. 
 
 44. Property acquired as a homestead in 
 exchange for another homestead will remain 
 exempt for a reasonable time for the purpose 
 of effecting the removal of the family from 
 the old homestead, although the new one is 
 not yet actually occupied : Cowgell v. War- 
 rington, 66-666. 
 
 45. Abandonment: An actual removal 
 from the homestead with no intention to 
 return will forfeit the homestead right, 
 even though no new homestead be acquired, 
 but where the removal is temporary and 
 with intention to return, unless others 
 have been misled thereby to their prejudice, 
 it will not work a forfeiture of the home- 
 stead right. Facts discussed , held to indicate 
 an intention to return: Fyffev. Beers, 18-4. 
 
 46. An averment that the party has aban- 
 doned the -homestead and is a non-resident, 
 and a resident of another state, is sufficient 
 to make out a prima fade case of abandon- 
 ment ; such fact would not be conclusive if 
 there were an intention of returning, but 
 such intention should be set up in the an- 
 swer and need not be negatived in the peti- 
 tion: Orman v. Orman, 26-361. 
 
 47. However, the premises do not lose the 
 homestead character by being left for a 
 merely temporary purpose : Davis v. Kelley, 
 14-523. 
 
 48. In such case they will remain exempt 
 even though in the absence of the owner 
 they are rented to a tenant : Bobb v. McBride, 
 
 49. A removal from the homestead for a 
 temporary purpose will not amount to aban- 
 donment where no prejudice has resulted 
 therefrom : Morris v. Sargent, 18-90. 
 Vol. 1—54 
 
 50. In a particular case, held, that the 
 fact that the wife left the homestead with 
 the husband for a temporary purpose, with 
 the intention of returning and occupying, 
 did not constitute an abandonment by her : 
 Bradshaw v. Hurst, 57-745.' 
 
 61. In such case, held also, that the inten- 
 tion to return must have existed and would 
 be presumed to continue until a contrary in- 
 tent was shown : Ibid. 
 
 52. The length of time of the absence is 
 not conclusive as to abandonment, but it is 
 an important fact in determining the inten- 
 tion to return, where there are no other acts 
 or circumstances indicating such intention: 
 Dunton v. Woodbury, 24-74. 
 
 53. Stronger proof of abandonment is re- 
 quired where the lien set up is claimed to 
 have attached during actual occupancy, than 
 where it arises when the party claiming the 
 premises was not in actual possession : Ibid. ; 
 Davis V. Kelley, 14-523. 
 
 54. Absence of the husband while working 
 at his trade, and the wife while boarding 
 their only child during his attendance upon 
 school, the homestead farm being in the 
 meantime leased with the reservation of two 
 rooms for storing household goods, there 
 being an intention to return, held not to con-^ 
 stitute an abandonment of the homestead: 
 Shirland v. Union Nat. Bank, 65-96. 
 
 55. The fact that the head of the family is 
 absent from home does not deprive the prop- 
 erty occupied by the family during his ab- 
 sence of the character of a homestead : Grif- 
 fin V. Sheley, 55-513. 
 
 56. The homestead exemption being for 
 the benefit of the family, so long as the 
 family desires to retain the homestead as 
 such, and does actually occupy it, it remains 
 exempt, although the head of the family may 
 have gone to another state and acquired 
 property and a residence there with the in- 
 tention of subsequently removing his family : 
 Savings Bank v. Kennedy, 58-454. 
 
 57. The removal of the husband, even 
 with intent to abandon the property, does 
 not affect the homestead right so long as 
 the wife, having the right to occupy, re- 
 mains in such occupancy: Dunt v. Neeley, 
 67-97. 
 
 58. A subsequent abandonment will not 
 render valid a conveyance by the husband or 
 
S50 
 
 HOMESTEAD, I. 
 
 Abandonment. 
 
 wife alone: Ibid.; Bruner v. Bateman, 66- 
 488. 
 
 59. A conveyance by the liusband to the 
 wife does not destroy its character as a 
 homestead nor change the time to which the 
 exemption dates : Green v. Farrar, 53-426. 
 
 60. Conveyance of the homestead standing 
 in the husband's name by the husband and 
 wife to a third party in trust, to be recon- 
 veyed to the wife, is not an abandonment or 
 fraudulent conveyance rendering the home- 
 stead subject to debts contracted subsequent 
 to its acquisition and before such transfer : 
 Sugunin v. Dewey, 20-368. 
 
 61. Where a husband being the owner of 
 the fee conveyed the homestead to a third 
 party who afterwards reconveyed it to the 
 wife, the occupancy remaining unchanged, 
 held, that such conveyance amounted to an 
 abandonment, it not appearing that the con- 
 
 ' veyance was for the purpose of vesting the 
 title in the wife and without intention of 
 abandoning the homestead right: Jones v. 
 Currier, 65-533. 
 
 62. Where the family did not cease to oc- 
 cupy the homestead, but another party took 
 possession of a portion thereof under a trans- 
 fer which was invalid, held, that the facts 
 did not constitute an abandonment: Stinson 
 V. Richardson, 44^373. 
 
 63. Where a wife holding the title to a 
 homestead under a voluntary conveyance 
 from her husband, which is void for fraud as 
 to creditors, dies, and the husband and chil- 
 dren afterwards abandon the homestead, it be- 
 comes liable to the claims of such creditors : 
 Gardner v. Baker, 25-348. 
 
 64. Where the owner leaves the premises 
 and acquires a new home, it will be presumed 
 that he intended to abandon the old home- 
 stead : Davis v. Kelley, 14-523. 
 
 65. An actual removal from the homestead 
 with no intention to return will amount to a 
 forfeiture of the homestead right as against 
 purchasers and creditors, even when a new 
 homestead has not been gained : Neivman v. 
 FranUin, 69-244. 
 
 66. While the length of a person's absence 
 may not be conclusive proof of his intention 
 to abandon his homestead, yet where such 
 absence is continued for some years, and 
 there is no circumstance or act which indi- 
 cates his intention to return and occupy the j 
 
 homestead, in such case, the length of his 
 absence may became a controlling circum- 
 stance: Ihid. 
 
 67. Absence from the homestead for about 
 three years without any manifest intention 
 to return, with repeated offers to sell or trade 
 the property and frequent expressions of a 
 purpose not to return to it, one of these be- 
 ing made at the time of the incurring of lia- 
 bility, held sufScient to constitute an aban- 
 donment as to the party to whom such 
 liability was incurred : Dunton v. Woodbury, 
 24-74. 
 
 68. Where it appeared that a party own- 
 ing and occupying a farm as a homestead 
 moved to town to practice law, with the in- 
 tention of pursuing his profession perma- 
 nently if he was able to make a living by it, 
 held, that the intention was such as to con- 
 stitute an abandonment of the homestead: 
 Kimball v. Wilson, 59-638. 
 
 69. Where the owner with his family re- 
 moved permanently from the property, 
 resided in different places, voted at elections 
 where so residing, and had no definite inten- 
 tion of returning to the property, but in- 
 tended to exchange it for another homestead 
 when possible, held, that the facts showed an 
 abandonment. Abandonment may be shown 
 without proof of the acquisition of a new 
 homestead : Cotton v. JSamil, 58-594. 
 
 70. The fact that the owner removed with 
 his family to another county and repeatedly 
 voted there, h^ld conclusive evidence of the 
 abandonment of the homestead: Boss v. 
 Belly er, 26 Fed. Eep., 413. 
 
 71. Upon sale of the portion of the home- 
 stead upon which the house is situated, with- 
 out intention to build upon and occupy the 
 residue as a homestead, the remaining por- 
 tion loses its homestead character : Givans v. 
 Dewey, 47-414; Windle v. Brandt, 55-221. 
 
 72. The mere intention to place the re- 
 mainder of the property in condition for 
 occupancy at a future time will not continue 
 the homestead character : Givans v. Dewey, 
 47^14. 
 
 73. Continuing to occupy the house as a 
 tenant at will after its conveyance will not 
 continue the homestead right: Windle v. 
 Brandt, 55-321. 
 
 74. Evidence that at the execution of a 
 mortgage upon property which had been the 
 
HOMESTEAD, I. 
 
 851 
 
 Change. 
 
 homestead, by the wife alone, she being 
 owner of the fee, she stated that she was not 
 living upon it and did not intend to do so, 
 held admissible to show that at the execu- 
 tion of a subsequent mortgage the home- 
 stead right did not exist, there having been 
 no occupation of the premises in the mean- 
 time as a homestead: Van Bogart v. Van 
 Bogart, 46-359. 
 
 75. "Where the wife, while absent from the 
 homestead, requested a creditor of the hus- 
 band to levy an attachment thereon, held, 
 that she thereby abandoned her homestead 
 right and could not insist upon it as against 
 such attachment : Parsons v. Cooley, 60-368. 
 
 76. A lease to a mining company of the 
 right to mine coal from the homestead does 
 not constitute such severance of the un- 
 mined coal as to subject it to judicial sale: 
 Sibley v. Lawrence, 46-563. 
 
 77. Where defendant sets up a homestead 
 right the burden of proving abandonment is 
 upon plaintifiE : Bradshaw v. Hurst, 57-745. 
 
 78. But where it is claimed that surrender 
 of possession is not voluntary and does not 
 constitute an abandonment, the burden of 
 proof is upon the party claiming the home- 
 stead right to establish his intention to re- 
 turn: Nevnnanv. Franklin, 69-244. 
 
 79. Facts in particular cases, as bearing 
 upon the question of abandonment, consid- 
 ered: Stewart v. Brand, 33-477; Leonard v. 
 Ingraham, 58-406. 
 
 80. Change of homestead: By statute 
 (Code, § 2000), a change of the homestead is 
 permitted, and the new homestead will be 
 exempt from execution to the extent in value 
 of the old, as against an indebtedness con- 
 tracted during the occupation of the latter, 
 but such change cannot prejudice previous 
 liens and conveyances : Sargent v. Chubbuck, 
 19-37. 
 
 81. The Uen of a judgment which has al- 
 ready attached cannot be affected by a 
 change of the homestead to property upon 
 which it is a lien: Elston v. Robinson, 31- 
 631. 
 
 82. Where the owner of two pieces of prop- 
 erty changed his homestead from one to the 
 other, held, that a judgment lien existing on 
 the second would become a lien on the first ; 
 but that the homestead right in the second 
 would be superior to such judgment lien, to 
 
 the same extent that it was in the first : Fur- 
 man V. Dewell, 35-170. 
 
 83. Where a party sells his homestead with 
 the intention of purchasing a new one, he 
 will be allowed a sufficient time within which 
 to exercise that right, and if he does not gain 
 credit on account of the transaction, debts 
 contracted in the interim cannot be enforced 
 against the new homestead: Benham v. 
 Chamberlain, 39-358. 
 
 84. The act of acquiring a new homestead 
 and moving into it cannot b^ simultaneous. 
 After the purchase the owner should be 
 allowed a reasonable time to make the 
 change and to remove the family to his new 
 home, and during the time intervening 
 between the purchase of the new house and 
 actual occupation, it is exempt as a home- 
 stead: Gowgell v. Warrington, 66-666. 
 
 85. The new homestead is liable for debts 
 contracted prior to the acquisition of the old 
 one : Bills v. Mason, 42-339. 
 
 86. But not for those contracted subse- 
 quently, and not put in judgment before the 
 acquisition of the new one : Pearson v. Min- 
 ium, 18-36 ; Rdbh v. McBride, 38-386. 
 
 87. The purchase of a second homestead 
 with the proceeds in part of the first and 
 other means entitles the owner to hold it 
 exempt from debts contracted subsequently 
 to the occupancy of the old homestead, where 
 the value of the second homestead does not 
 exceed that of the first : Lay v. Templeton, 
 59-684 ; Benham v. Chamberlain, 39-358. 
 
 88. It is not necessary that the old home- 
 stead be sold for cash which is immediately 
 invested in a new one. The sale may be on 
 time, and if the intention is to invest the pro- 
 ceeds, when realized, in the new, such pro- 
 ceeds will be exempt : State v. Geddis, 44^537. 
 
 89. Where plaintiff owned a homestead 
 and also a half -interest in other property sub- 
 ject to execution, and exchanged the home- 
 stead for the other half-interest in such 
 property, held, that the half-interest origi- 
 nally owned remained liable to be sold under 
 execution on a judgment for a debt existing 
 at the time of the exchange: Thompson v. 
 Rogers, 51-333. 
 
 90. Where defendant relies upon the fact 
 that his homestead was procured with the 
 proceeds of a previous homestead in order to 
 establish its exemption from a claim which 
 
852 
 
 HOMESTEAD, I, II. 
 
 Change. — Conveyance or incumbrance. 
 
 antedates the last homestead, the burden of 
 proof to establish that fact is upon him : First 
 Nat. Bank v. Baker, 57-197 ; Paine v. Means, 
 65-S47. 
 
 91. Where a farm exceeding in extent the 
 amount which could be held exempt, and in- 
 cumbered for a portion of its value, was ex- 
 changed for another tract of land no greater 
 in value than was capable of exemption as a 
 homestead, and the latter was occupied as 
 such, held, that as it was not practicable to 
 establish what portion of the value of the 
 original tract was exempt, no portion of the 
 new homestead could be held exempt from a 
 debt existing at the time of the exchange : 
 Paine v. Means, 65-547. 
 
 92. The proceeds of the homestead when 
 invested in a new homestead in another state 
 do not remain exempt. Therefore, where a 
 party sold his homestead in Iowa and pur- 
 chased one in Missouri, and thereafter sold 
 his homestead in Missouri and invested the 
 proceeds in a homestead in Iowa, held, that 
 he could not hold the last homestead in Iowa 
 exempt from debts existing at the time of its 
 purchase, even though they did not antedate 
 the first homestead: Rogers v. Raisor, 60- 
 355. 
 
 93. Where a debtor holding a homestead 
 exempt from execution for his debts ex- 
 changed the same for other property which 
 he procured to be conveyed directly to his 
 wife, held, that the property thus conveyed 
 to the wife did not become subject to pay- 
 ment of his debts, and that such conveyance 
 to the wife was not fraudulent: Jones v. 
 Brandt, 59-332. 
 
 94. The change of metes and bounds which 
 is authorized by statute has no reference to a 
 conveyance or mortgage of a portion of the 
 land which may be claimed as a homestead, 
 and a change cannot be effected in that way 
 without the consent of the husband or wife, 
 
 . unless it be for the acquisition of a new home- 
 stead : Goodrich v. Brown, 63-247. 
 
 95. Under particular facts, lield, that a 
 new homestead, practically of the same value 
 as the old, remained exempt, but that other 
 property, acquired and used in connection 
 with the homestead, but not procured with 
 the proceeds of the former homestead, was not 
 exempt from prior indebtedness : AtMnson v. 
 Hancock, 67-453. 
 
 96. Under particular facts, held, that the 
 intention to change the homestead was not 
 shown : Coad v. Neal, 53^538. 
 
 II. CONTETANCE OE INOrMBEANOE OF 
 THE HOMESTEAD. 
 
 97. Consent of both husband and wife 
 necessary: Neither the husband nor the wife 
 can by any separate act affect the homestead 
 rights of the other and change the homestead 
 character of the property. When the right 
 of a homestead is once attached to the prop- 
 erty, it can be relinquished or divested only 
 by a joint conveyance or by an abandonment 
 of the property as a homestead by both hus- 
 band and wife : Imnt v. Neeley, 67-97. 
 
 98. But the subsequent purchaser without 
 notice that property conveyed by the hus- 
 band or wife holding the legal title thereto 
 was made at a time when the property was 
 invested with the homestead character, is 
 not affected with notice of the invalidity of 
 such conveyance and will be protected: 
 Ibid. 
 
 99. Where an unmarried man, owning 
 and occupying property as a home, made ap- 
 plication for a loan secured by mortgage 
 upon the land, and before the execution of 
 the mortgage, but without the knowledge of 
 the lender, was married, held, that the mort- 
 gage was subsequent to the wife's homestead 
 right: Tolman v. Leathers, 1 McCrary, 839. 
 
 100. A mortgage upon the homestead by 
 the husband alone, even though given to se- 
 cure a debt antedating the homestead, held 
 void, and the record thereof not sufficient to 
 constitute notice to a subsequent purchaser. 
 The creditor whose claim antedates the 
 homestead right has no lien as against a pur- 
 chaser without notice, until he recovers 
 judgment on his claim : Sigley v. Millard, 45- 
 586. , 
 
 101. A sale and conveyance of the home- 
 stead by husband and wife will transfer a 
 valid title to the purchaser as against a 
 prior sale by the husband alone, although 
 the second purchaser had knowledge of the 
 first conveyance : Oarlock v. Baker, 46-334. 
 
 102. A contract by the husband to convey 
 property which has been acquired by him in 
 exchange for the homestead, with the in- 
 tention of occupying it for a new homestead 
 
HOMESTEAD, II. 
 
 853 
 
 Convej'ance or incumbrance. 
 
 •within the period reasonably required for 
 making a removal, will be void, although 
 the property acquired has not yet been 
 actually occupied: Cowgell v. Warrington, 
 66-666. 
 
 103. Where the homestead right exists in 
 property, the vphole of which is greater in 
 amount than can be claimed under the home- 
 stead law, the boundaries of the homestead 
 not having been established, the owner of 
 the fee cannot, by conveying a portion of 
 the property by an instrument in which the 
 other does not join, limit the homestead 
 right to another portion thereof. No valid 
 sale of any portion can be made until the 
 provisions of law as to platting have been 
 complied with: Goodrich v. Brown, 63-247. 
 
 104. The rights of the wife and family in 
 the homestead cannot be afEected by the 
 fraudulent acts of the husband : Eli v. Qrid- 
 ley, 37-376. 
 
 105. The subsequent adoption of property 
 as a homestead will not affect conveyances 
 previously made : Yost v. Devault, 3-345. 
 
 108. Where, prior to the execution of a 
 mortgage on real estate, no part thereof is 
 occupied as a homestead, and an adjoining 
 tract is used and held out as such, third per- 
 sons being influenced by such representa- 
 tions, the mortgagor's wife, though not 
 joining in the mortgage, cannot afterwards 
 set out the homestead by plat, and record it 
 so as to include part of the mortgaged prem- 
 ises: Lucas V. Pickel, 20-490. 
 
 107. Incambrauces: Under a statute not 
 forbidding the incumbrance of the home- 
 stead, but only the conveyance thereof by 
 one party alone, held, that a mortgage was a 
 conveyance: Babcockv.'Hoey, 11-375. 
 
 108. Assignment; lease or contract: 
 Where premises held under a lease are oc- 
 cupied as a homestead, an assignment of the 
 lease by the husband alone will not be valid : 
 Pelan v. De Bevard, 13-53. 
 
 109. The rights of awife in the homestead 
 cannot be prejudiced by a lease made by her 
 husba,nd or by a holding by him in recogni- 
 tion of a mortgagee's title as against him : 
 Morns v. Sargent, 18-90. 
 
 110. Where the title to the homestead is 
 held under a contract of purchase, the hus- 
 banji having such contract cannot, without 
 the consent of the wife, make an assignment 
 
 thereof so as to divest the homestead right : 
 Drake v. Moore, 66-58. 
 
 111. The verbal assent of the wife to a 
 conveyance of the homestead or an assign- 
 ment of the title bond under which it is held 
 will not make it binding : Donner v. Roderir 
 baiigh, 61-269; Stiyison v. Richardson, 44- 
 373. 
 
 112. An oral agreement b}' the parties to 
 execute a mox-tgage upon the homestead, for 
 money borrowed to redeem the same from 
 execution, cannot be specitically enforced, 
 nor can the money so advanced be made a 
 lien upon the premises by judicial decree: 
 Clay V. Richardson, 59-483. 
 
 113. The fact that the wife has knowledge 
 of and appi-oves the sale of the homestead, 
 and even an express agreement on her part 
 to convey the same, if it is not in writing, 
 will not render a contract of sale by the hus- 
 band alone valid: Anderson v. Culbert, 55- 
 233. 
 
 114. Eatiflcation: Where there is an at- 
 tempt to execute a proper instrument, which, 
 however, is void by reason of defects in form, 
 the parties may bind themselves by a ratifi- 
 cation of such instrument, either express, or 
 presumed from their acts : Spaffordv. War- 
 ren, 47-47. 
 
 115. Where it was attempted to show rati- 
 fication by the wife of a parol contract to 
 convey the homestead, made during the life- 
 time of her husband, held, that mere accept- 
 ance of the benefits of such parol contract 
 during three or four weeks of ill-health fol- 
 lowing the death of the husband was not 
 sufiicient to prove such parol ratification: 
 Clark V. Evarts, 46-248. 
 
 116. Duress: W^here the concurrence of a 
 wife in the mortgage of a homestead is 
 procured by duress, it cannot be enforced : 
 First Nat. Bank v. Bryan, 62-42. 
 
 117. Insanity: Where the wife is insane 
 at the time of a conveyance in which she at- 
 tempts to join for the purpose of conveying 
 the homestead, it will be void for want of 
 her consent: Alexander v. Vennum, 61-160. 
 
 118. The fact that the wdfe, at the time of 
 making a note secured by mortgage on the 
 homestead, was mentally unsound, will not 
 defeat the mortgage in the ordinary course of 
 business, if the transaction is fair and reason- 
 able, and the mental condition of the wife 
 
854 
 
 HOMESTEAD, II. 
 
 Conveyance oi- incumbrance. 
 
 ■was not known to the other party : Abbott v. 
 Creal, 56-175. 
 
 119. Fraud: Kthe wife actually signs an 
 instrument of conveyance or incumbrance, 
 she vrill not be allowed to dispute its validity 
 on the ground that she was ignorant of its 
 contents or that she was induced to do so by 
 fraud or deception of her husband, in the ab- 
 sence of a showing that the grantee or mort- 
 gagee was cognizant of such deception and 
 fraud : Edgell v. Sagens, 53-223 ; Van Sickles 
 V. Town, 53-259. 
 
 120. The fact that a wife's signature to a 
 mortgage of the homestead is obtained by 
 fraud and misrepi'esentation on the part of 
 her husband will not defeat the mortgage, 
 where no knowledge of the fraud can be im- 
 puted to the mortgagee: ^tna L. Ins. Co. 
 V. Franks, 53-618. 
 
 121. Where the husband, to whom the 
 wife owning the fee of the homestead in- 
 trusted the entire control of the business, 
 secured a loan thereon upon the representa- 
 tion that he would furnish a valid mortgage 
 upon the property signed by the wife and him- 
 self, and afterwards furnished such security, 
 held, that the wife was estopped by his action 
 from relying upon a defense to such mort- 
 gage based upon erasui'es and interlineations 
 claimed by her to have been made by her 
 husband, but not readily apparent upon 
 inspection : Sawyer v. Perry, 62-338. 
 
 122. Mortgage for husband's debts: The 
 wife may join in a moi'tgage of the home- 
 stead for the payment of a note of her 
 husband and will be bound thereby to the 
 extent of the property mortgaged, but she 
 would not thereby become entitled to the 
 proceeds of the loan effected or property 
 purchased therewith : Jtock v. Kreig, 39-239. 
 
 123. The homestead is bound by a mort- 
 gage executed by the husband and wife to 
 secure their joint note, it being expressly 
 stipulated that the intention is to bind the 
 homestead : Lcm v. Anderson, 41-476. 
 
 124. A purchase-money mortg:ag:e given 
 at the time of the acquisition of the home- 
 stead, to the vendor, is valid, though ex- 
 ecuted alone by the party taking the legal 
 title : Christy v. Dyer, 14-438. 
 
 125. B. having become bound as sur'ety 
 for one L. L. to A. L., and being at the same 
 time indebted by mortgage for the purchase 
 
 money of land which included the home- 
 stead, an arrangement was made by which 
 B. assumed the payment of the debt to A. L., 
 securing it by a mortgage on the same prop- 
 erty, and the amount thus assumed was, by 
 the procurement of L. L. , indorsed upon the 
 purchase money notes ; held, that A. L. could 
 not claim to be the assignee of a portion of 
 the purchase money, or of the vendor's 
 rights, and took the mortgage subject to the 
 unpaid residue of the first mortgage and sub- 
 ject to the homestead rights of B.'s wife, who 
 had not joined in the mortgage : Bumap v. 
 Cook, 16-149. 
 
 126. The renewal by the husband of a 
 debt, by an admission or new promise suffi- 
 cient to take the case out of the statute of 
 limitations, will also keep in force a mort- 
 gage given on the homestead to secure the 
 same, although such renewal is without the 
 wife's consent : Mohan v. Cooley, 36-479. 
 
 127. A conveyance for right of way by 
 the husband, owner of the legal title of the 
 homestead, in which the wife does not join, 
 is not necessarily invalid : Chicago & S. W. 
 B. Co. V. Swinney, 38-183. 
 
 128. Damages assessed for the taking of a 
 right of way through the homestead are 
 exempt from execution. "Whether the pro- 
 ceeds of a voluntary conveyance by the hus- 
 band for that purpose would be exempt, 
 qucere: Kaiser v. Seaton, 63-463. 
 
 As to damages for injuries by fire being 
 exempt, see infra, § 231. 
 
 129. A license to mine upon the home- 
 stead, executed by the owner alone without 
 concurrence of the wife, is not necessarily 
 invalid, and even if her assent should be con- 
 sidei-ed necessary, it would be presumed 
 from knowledge on her part that work was 
 being done thereunder or expenses incurred 
 to which she made no objection : Harkness 
 V. Burton, 39-101. 
 
 1 .30. A lease to a mining company of the 
 right to mine coal from the homestead does 
 not constitute a severance such as to subject 
 the unmined coal to judicial sale : Sibley v, 
 Laurrence, 46-563. 
 
 131. How conveyance effected: TJnderthe 
 provisions of Revision (§ 2279), which did not 
 use the language of the present Code (§ 1990), 
 requiring signature of both parties to " the 
 same joint instrument," it was held doubtful 
 
HOMESTEAD, II. 
 
 855 
 
 Conveyance or incumbrance. 
 
 as to whether a conveyance of the homestead 
 by separate deeds or equitable mortgages of 
 the husband and wife, in neither of which the 
 other joined and which were made at an in- 
 terval of a year apart, would pass title to the 
 common grantee ; but it was held that such 
 deeds would not be considered invalid in 
 equity upon complaint of a subsequent 
 grantee taking title for a fraudulent purpose 
 at a nominal consideration and with a knowl- 
 edge of all the circumstances: Luther v. 
 Drake, 21-93. 
 
 132. An instrument in which the wife only 
 joins for the purpose of releasing her dower 
 is not such a joint instrument as is requii-ed 
 to convey or incumber the homestead : Sharp 
 V. Bailey, 14-387; Fuller v. Hunt, 48-163; 
 Wilson V. Christopherson, 53^81 ; Eisenstadt 
 V. Cramer, 55-753. 
 
 133. Apparently contra, see Reynolds v. 
 Morse, 53-155. 
 
 134. It is not necessary that the convey- 
 ance or incumbrance should specifically state 
 that the property sought to be conveyed or 
 incumbered is the homestead: Babcodk v. 
 Hoey, 11-375 ; O'Brien v. Young, 15-5 ; Rey- 
 nolds V. Morse, 52-155 ; Van Sickles v. Town, 
 53-259 ; Waterman v. Baldwin, 68-255. 
 
 135. A conveyance of the homestead prop- 
 erty from the husband to the wife will not 
 vest in her such title that she alone can make 
 a valid conveyance thereof: Spoon v. Van 
 Fossen, 53-494. 
 
 136. Effect of conveyance by one party 
 alone: An agreement to convey, made by 
 the husband or wife alone, is absolutely void, 
 and a specific performance thereof cannot be 
 enforced : Yost v. Devault, 9-60. 
 
 137. A mortgage upon the homestead ex- 
 ecuted by the husband alone while his wife 
 is living is not binding upon him even after 
 the death of the wife : Larson v. Reynolds, 
 13-579. 
 
 138. Where one party alone enters into a 
 contract to convey the homestead no dam- 
 ages can be recovered for the breach of such 
 contract from the party executing it: Bar- 
 nettv. Mendenhall, 43-296; Clark v. Evarts, 
 46-348 ; Cowgell v. Warrington, 66-666. 
 
 139. Where the husband enters into a con- 
 tract to convey, to which both parties expect 
 to secure the assent of the wife, but such as- 
 sent is not secured, the purchaser cannot 
 
 recover from the husband the excess in the 
 value of the land over the purchase price. 
 The case is not one of fraud, and it is doubt- 
 ful whether anything can be recovered ex- 
 cept the purchase money paid and interest : 
 Donner v. Rodenbaugh, 61-269. 
 
 140. Specific performance: Where the 
 husband caused the homestead to be adver- 
 tised for sale at auction and it was so sold, 
 held, in the absence of any consent to such 
 sale by the wife, specific performance could 
 not be enforced : Garlodk v. Baker, 46-384. 
 
 141. Subsequent abandonment of the 
 homestead will not make a conveyance or 
 mortgage by the husband alone, whUe the 
 property was occupied as a homestead, valid : 
 Bruner v. Bateman, 66-488 ; Lunt v. Neeley, 
 67-97. 
 
 143. Improvements by purchaser in good 
 faith: Where a party takes possession of a 
 homestead under a void transfer thereof, 
 but in good faith, believing that he has ac- 
 quired a good title, and makes improvementa 
 which are judicious and necessary and not 
 inconsistent with the circumstances of the 
 owner, he is entitled to allowance for such 
 improvements: Stinson v. Richardson, 44r- 
 373. 
 
 143. Bents and profits: Whether in such 
 case the wife of the party who has attempted 
 to convey the homestead can maintain action 
 for rents and profits against the person thus 
 taking possession under such conveyance, 
 quaere; but held, in a particular case, that a 
 decree applying such rents and profits on a 
 judgment against the homestead was proper: 
 lUd. 
 
 144. Where plaintiff's husband before his 
 death assigned to defendant a bond for a 
 deed by which he held a tracfrof land, in- 
 cluding the homestead defendant agreeing 
 to pay certain judgments and other consider- 
 ations, in which assignment plaintiff did not 
 join, held, that upon this being set aside, at 
 the suit of plaintiff, and defendant declared 
 entitled to be subrogated to the rights of the 
 holder of the judgments which he had paid 
 off in a supplemental proceeding by the wife 
 after the husband's death, the rents and 
 profits of the portion of the premises which 
 was the homestead should be applied to the 
 satisfaction of these judgments, but not the 
 rents and profits from the portion not a part 
 
856 
 
 HOMESTEAD, III. 
 
 Claims upon and liens against ; how enforced. 
 
 of the homestead, and that a like application 
 should be made of the value of a horse given 
 to defendant by plaintiflE's husband in the 
 trade : Stinson v. Richardson, 48-541. 
 
 III. Claims upon and liens against ; 
 
 HOW ENFOECBD. 
 
 145. Unpaid purchase money: The home- 
 stead right is subordinate to the right of the 
 vendor for unpaid purchase money : Christy 
 V. Dyer, 14^438 ; Cole v. Oill, 14-527 ; Bumap 
 V. Cook, 16-149 ; Hyatt v. Spearman, 20-510. 
 
 146. In such case, a general judgment and 
 execution is the proper method of enforcing 
 the vendor's lien : Bills v. Mason, 42-329. 
 
 147. The assignment of a note given for 
 the purchase money of property constituting 
 a homestead carries with it the vendor's lien 
 and all the equities and rights which the 
 vendor would have had if he had never 
 parted with the debt : Ibid. 
 
 148. Fraud: Where the title to property 
 has its inception in fraud, its homestead 
 character cannot be set up to defeat the 
 claims of the person from whom it was ob- 
 tained : Muir v. Bozarth, 44-499. 
 
 149. Debts contracted prior to acquisi- 
 tion: The homestead is liable, under the 
 statute, for debts contracted prior to its 
 acquisition and occupancy as such, provided 
 no other property is found subject to execu- 
 tion : Oreeley v. Sample, 33-388. 
 
 150. The statutory provision that " the 
 homestead may be sold for debts contracted 
 prior to the purchase thereof " (Code, § 1992), 
 means that it may be thus sold for debts con- 
 tracted prior to the time when the homestead 
 right attaches by vh-tue of actual occupancy 
 as a homestead. Debts contracted after the 
 purchase of the property, but before it ac- 
 quires the homestead character by occupancy 
 as such, may be enforced against the property : 
 Hale V. Heaslip, 16-451 ; Hyatt v. Spearman, 
 20-510 ! Elston v. Robinson, 23-208. 
 
 151. The entry of land under the United 
 States homestead laws, which is afterward 
 occupied as a homestead, constitutes the pur- 
 chase of the homestead within the meaning 
 of this section. The exemption dates from 
 such entry and not from the issuance of a 
 patent : Green v. Farrar, 53-426. 
 
 152. A homestead is liable to foreign as 
 
 well as domestic debts created prior to its 
 acquisition: Laing v. Cunningham, 17-510; 
 Brainard v. Van Kuran, 23-361. 
 
 153. Where a debt contracted prior to the 
 acquisition of the homestead has become 
 barred, and is renewed by a new note given 
 subsequently to such acquisition, the home- 
 stead remains liable : Sloan v. Waugh, 18-324. 
 
 154. Where a party has derived a pecun- 
 iary advantage from a wrong done by him, 
 and it is competent for the person suing 
 thereon to waive tlie tort and maintain action 
 on an implied promise, the obhgation to pay 
 is a debt within the meaning of the statutory 
 provision above referred to, from the time of 
 the wrong ; but if the wrong results in no 
 pecuniary advantage and the action must be 
 in tort, and sound only in damages, then the 
 obligation is not a debt until ascertained by 
 judgment : Warner v. Cammack, 37-643. 
 
 1 55. The homestead being liable for debts 
 created before its acquisition, the execution 
 of a mortgage thereon to secure such a debt 
 creates no additional burden so far as the 
 rights of the wife are concerned, and, there- 
 fore, such mortgage executed by the husband 
 alone would be vaJid as to the wife, but it 
 would not be valid as to innocent pm-chasers 
 before judgment on the debt secured, and the 
 recording of such a mortgage would there- 
 fore not affect them with notice: Higleyv. 
 Millard, 45 586. 
 
 156. The liability of the homestead to 
 debts contracted before it acquires the home- 
 stead character attaches at the time they are 
 contracted, and not merely from the time 
 judgment is rendered thereon : Bills v. Mason, 
 43-839. 
 
 157. Lien of judgments: As between the 
 parties, or as against persons chargeable with 
 notice of the character of the debt, a judg- 
 ment upon a debt contracted prior to the 
 time when the property acquired a home- 
 stead character, although not rendered until 
 after that time, becomes a lien upon the 
 homestead, and a party claiming under the 
 homestead right (as by mortgage) is bound 
 to ascertain when such right began, and 
 whether it was prior to the debt on which the 
 judgment was rendered: Hale v. Heaslip, 
 16-451. 
 
 158. And where it does not appear from 
 the judgment itself that the debt was con- 
 
HOMESTEAD, III. 
 
 867 
 
 Claims upon and liens against ; how enforced. 
 
 tracted prior to the acquisition of the home- 
 Btead, that fact may be shown by evidence 
 aliunde: Ddavan v. Pratt, 19-439; Phelps v. 
 Finn, 45-447. 
 
 159. A judgment defendant who is surety 
 for his co-defendant has such an interest as 
 against his co-defendant that he may show 
 that the judgment is for a debt antedating 
 the acquisition of the homestead of his prin- 
 cipal: Delavanv. Pratt, 19-429. 
 
 160. It is not suificient, in order to make 
 a judgment a lien upon the homestead other- 
 wise than as a mechanic's lien, to show that 
 it was for material furnished and labor per- 
 fermed upon the homestead property, unless 
 the indebtedness ai-ose before its acquisition 
 as a homestead : Ibid. 
 
 161. A judgment for a debt antedating 
 the liomestead right is a lien on the home- 
 stead in such sense that the holder thereof 
 may redeem from an execution sale by a 
 senior creditor, and as against such senior 
 creditor purchasing at his own sale may 
 show by evidence aliunde that his debt an- 
 tedates the homestead: Phelps v. Finn, 45- 
 447. 
 
 162. A creditor whose claim antedates the 
 homestead has no Uen as against a purchaser 
 without notice, until the recovery of his 
 judgment : Higley v. Millard, 45-586. 
 
 163. The homestead being subject to the 
 lien of a judgment for a debt contracted be- 
 fore its acquisition from the time such judg- 
 ment is rendered, a. purchaser after the lien 
 attaches takes subject thereto, and in case 
 of sale of the property under such judgment 
 has no other right than that of making statu- 
 tory redemption from the sale : Kimball v. 
 Wilson, 59-638. 
 
 164. A judgment under which a home- 
 stead is not liable to sale does not attach as 
 a lien thereon, and a conveyance of such 
 homestead to a third person passes title free 
 from such judgment: Lamb v. Shays, 14r- 
 567; Cummingsv. Long, 16-41. 
 
 165. But when, by abandonment, the 
 homestead loses its character, the liens of 
 prior judgments attach in the same manner 
 afi the lien of a judgment attaches to prop- 
 erty subsequently acquhed by the judgment 
 debtor : Lamb v. Shays, 14-567. 
 
 166. A conveyance of the homestead can- 
 not be set aside as a fraud upon creditors 
 
 whose claims are not a lien against it : AuU- 
 man v. Heiney, 59-654. 
 
 167. A voluntary conveyance of the home- 
 stead will not be fraudulent as to creditors 
 having no lien thereon : DeHashmut v. Trau, 
 44-613 ; Officer v. Evans, 48-557. 
 
 168. Decree for divorce ; alimony: Where 
 a decree of divorce merely gives the wife a 
 personal judgment for aUmony, the home- 
 stead, which the husband still continues to 
 occupy as the head of the family, civnnot be 
 sold to satisfy the judgment : Byers v. Byera, 
 31-268; Wliitcomb v. Whitcomb, 52-715. 
 
 169. The homestead is for the benefit of 
 the family and not of the husband alone, and 
 the law of homestead has no application 
 in a suit for divorce and alimony. The court 
 in adjusting the rights of the parties may 
 make such provision or disposition of it as 
 may appear just and equitable, and the at- 
 tachment authorized in actions for alimony 
 (Code, § 2227) may therefore be levied on the 
 homestead: Daniels v. Morris, 54-369. 
 
 170. Written contracts making home- 
 stead liable: The statutory provision that 
 " the homestead may be sold for debts created 
 by written contract executed by the persons 
 having the power to convey, and expressly 
 stipulating that the homestead is liable there- 
 for" (Code, § 1993), has reference to the man- 
 ner in which the creation of the debt is to be 
 evidenced rather than to the time when the 
 liability arises. This section applies as well 
 to debts evidenced by written contract subse- 
 quently to their creation as to debts so evi- 
 denced at the very time they are contracted : 
 Stevens v. Myers, 11-183. 
 
 171. The written contract here specified 
 need not be a mortgage or other conveyance ; 
 any writing containing necessary stipulations 
 and executed by the proper persons is suffi- 
 cient : Foley v. Cooper, 43-376. 
 
 172. The homestead camiot be rendered 
 liable for the debts of its owner by mere 
 verbal agreement to charge it with the pay- 
 ment thereof and to execute a writing to 
 that affect, which by mistake is not done: 
 Putt V. Howell, 50-585. 
 
 173. A provision in a confession of judg- 
 ment that execution might be issued tliereon 
 " against any property belonging to said de- 
 fendants, homestead included," held not suf- 
 ficient to render the homestead liable : Ibid, 
 
858 
 
 HOMESTEAD, III. 
 
 Claims upon and liens against; how enforced. 
 
 1 74. The fact that the husband and wife 
 execute a mortgage upon their homestead 
 to secure a particular creditor does not sub- 
 ject it to the payment of the claims of other 
 creditors, nor can a general creditor be sub- 
 rogated to the rights of the mortgagee. If 
 the owner afterwards makes a general as- 
 signment for the benefit of creditors, the 
 holder of the mortgage is entitled to a pro 
 rata share with the other creditors, and the 
 homestead is only liable for the balance re- 
 maining unpaid : Dickson v. Cfhorn, 6-19. 
 
 175. Foreclosure of iiicunibraiices against 
 the homestead: The wife cannot be affected 
 by any decree foreclosing a mortgage on the 
 homestead to which she is not made a party : 
 Burnap v. Cook, 16-149. 
 
 1 76. The lien of a mortgage of the home- 
 stead, executed by the owner before mar- 
 riage, is prior to any claim the wife may 
 have by the subsequent marriage; but in a 
 foreclosure suit the wife must be made a 
 party in order that the judgment be binding 
 upon her, and that a sale thereunder may 
 cut off her dower rights: Chase v. Abbott, 
 20-154. 
 
 177. Where a mortgage is invalid because 
 not joined in by the wife, who afterwards 
 dies, and the mortgagor at the time of fore- 
 closure has a second wife, her rights cannot 
 be cut off unless she is made a party : Larson 
 V. Reynolds. 13-579. 
 
 178. But the wife is not a necessary party 
 in every action affecting the homestead : Ibid. 
 
 1 79. Even where more property than can 
 be held as a homestead is occupied, no fore- 
 closure can be had as to any part thereof 
 Tinder a mortgage not joined in by the wife ; 
 and therefore a foreclosure of such a mort- 
 gage cannot be had against the husband 
 alone : Goodrich v. Brown, 63-247. 
 
 180. Where 'the occupancy of property as 
 a homestead commences subsequently to the 
 commencement of an action to foreclose a 
 mortgage executed by the husband, before 
 the property acquired the homestead charac- 
 ter, a sale under such foreclosure cuts off the 
 wife's homestead rights, although she is not 
 made a party thereto. She has no rights in 
 such homestead which she can assert as 
 against the mortgage, even to compel plaint- 
 iff to first exhaust other property: Kemerer 
 V. Bournes, 53-173. 
 
 181. Receiver: An application for the ap- 
 pointment of a receiver pending proceedings 
 to foreclose a mortgage on a homestead may 
 properly be refused where the amount due 
 under the mortgage is in dispute : Callanan 
 V. Shaw, 19-183. 
 
 182. Whether in any case a receiver should 
 be appointed to take possession and charge of 
 a mortgagor's homestead pending proceed- 
 ings to foreclose, quaere: Ibid. 
 
 183. Failure to set up homestead right 
 in the foreclosure proceeding bars any such 
 right : Larson v. Reynolds, 13-579. 
 
 184. And it cannot afterwards be set up 
 against the purchaser at a sale under the 
 judgment recovered under such proceeding: 
 Haynes v. Meek, 14^320. 
 
 185. Where a defendant failed to set up 
 his homestead right in an action to charge 
 his property with a lien, held, that he could 
 not, after judgment, maintain an action to 
 prevent the enforcement of such lien on 
 the ^ound that he was Ignorant of his 
 rights ; and Mid also that his minor children 
 had no interest which could be interposed 
 in that manner : Collins v. Chantland, 48- 
 341. 
 
 186. Where a homestead was sold under 
 special execution and the surplus in the sher- 
 iff's hands was applied upon other executions 
 against the defendant, and it was shown that 
 such other executions were not upon judg- 
 ments which could be enforced against the 
 homestead, but such application of the sur- 
 plus was made without objection on the part 
 of plaintiff, held, that he could not recover 
 such surplus in an action against the sheriff : 
 Brumbaugh v. Zollinger, 59-384. 
 
 187. Where, in an action for divorce, the 
 wife asked alimony, and a certain amount 
 was granted and made a special lien on land 
 otherwise involved in the suit, which land 
 was afterwards sold to satisfy the decree, 
 held, that the husband could not afterwards 
 contest the sale on the ground that the prop- 
 erty was his homestead. The homestead 
 right should have been set up before the de- 
 cree: Hemenway V. Wood, 53-21. 
 
 188. Who may interpose the defense: The 
 invalidity of a mortgage on the homestead 
 executed by the husband alone may be set 
 up by a junior mortgagee, in a proceeding to 
 foreclose the senior mortgage, although such 
 
HOMESTEAD, ni. 
 
 859 
 
 Claims upon and liens against ; how enforced. 
 
 defense is not interposed by the owners : Al- 
 ley V. Say, 9-509. 
 189. Sale of homestead under execntion : 
 
 It is the policy of the law to require all other 
 property of the defendant in execution to be 
 exhausted before the sale of the homestead : 
 Twogood V. Stephens, 19-405. 
 , 190. The statutory provision (Code, § 1993) 
 requiring that, where the homestead is liable 
 to execution, it shall be resorted to only after 
 exhausting " other property of the debtor lia- 
 ble to execution," applies to his interest in 
 pai'tnership property: Lambert v. Powers, 
 36-18. 
 
 191. Where the homestead is sold before 
 other pi'operty is exhausted, the sale may be 
 Bet aside and a resale ordered : Lay v. Oib- 
 hms, 14-377. 
 
 192. Where the holder of a senior mort- 
 gage on property, including the homestead, 
 took a conveyance of the entire property 
 without releasing his mortgage or otherwise 
 indicating his intention that it should be 
 merged in his legal title, held, that as to 
 junior mortgages, he had the right to have 
 his mortgage debt satisfied first, if possible, 
 out of the portion not included in the home- 
 stead, 'to the exclusion of junior hens which 
 were not a lien upon the homestead : Lins- 
 eott V. Lamart, 46-312. 
 
 193. A party claiming that the homestead 
 is not Hable because other property has not 
 been exhausted must make such fact appear. 
 It is not necessary to negative that fact in 
 the first instance in order to make the sale 
 valid: Hale v. Heaslip, 16-451; Stevens v. 
 Myers, 11-183. 
 
 194. The fact that a judgment creditor, 
 under a claim prior to the homestead, has 
 delayed until the other property of the 
 debtor has been otherwise exhausted, will 
 not release the homestead from his claim: 
 Denegre v. Haun, 14-240. 
 
 195. The right to compel a creditor to ex- 
 haust other property subject to his mortgage 
 before subjecting the homestead does not ex- 
 ist in favor of a third person who has pur- 
 chased the homestead after the execution of 
 the mortgage under which the sale is had : 
 BarUr v. Bollins, 80-412; Kemerer v. 
 Bournes, 53-173. 
 
 196. If the mortgagor has sold the other 
 property which might have been applied to 
 
 the satisfaction of the debt, he cannot re- 
 quire that it be proceeded against in the 
 hands of a third party before the homestead 
 is sold: Dilgerv. Palmer, 60-117. 
 
 197. Where a mortgage is given covering 
 the homestead and other land, and then a 
 second mortgage is executed upon the same 
 land so far as not included in the homestead, 
 and the second mortgage is foreclosed and 
 the land covered by it sold to the mortgagee 
 therein, such mortgagee cannot insist that 
 the homestead be first subjected to the pay- 
 ment of the first mortgage, but the mort- 
 gagor may insist, on the foreclosure of the 
 senior mortgage, that the property covered 
 thereby not included within the homestead 
 shall first be applied to the satisfaction of 
 such mortgage: Equitable L. Ins. Co. v. 
 Gleason, 62-277. 
 
 198. Although by statute (Code, § 3323) a 
 junior mortgagee is entitled to pay oS a 
 senior mortgage covering the same premises 
 and other property, and have an assignment 
 thereof and enforce it first as against the 
 property not covered by his junior mortgage, 
 yet if the property thus embraced in the 
 senior mortgage and not covered by the 
 junior is the mortgagor's homestead, the 
 junior mortgagee is not entitled to such as- 
 signment, as the homestead cannot be first 
 subjected to the satisfaction of the senior 
 mortgage: Or ant v. Parsons, 67-31. 
 
 199. Where the sheriff at a sale on fore- 
 closure of a mortgage covering the home- 
 stead and other tracts offers the land not in- 
 cluded in the homestead in separate tracts 
 without receiving bidders, that is a suflicient 
 exhausting of other property as required by 
 statute, and a subsequent sale of the entire 
 property including the homestead is not ir- 
 regular : Burmeister v. Deicey, 27-468 : Eggers 
 V. Redwood, 50-289; Brumbaugh v. Shoe- 
 maker, 51-148. 
 
 200. If the officer's return of the execution 
 recites the sale of the whole for a certain 
 sum, but does not state whether the portion 
 not included in the homestead was first of- 
 fered separately, it will be presumed that the 
 officer did his duty, and that the portion not 
 included in the homestead was first offered : 
 Eggers v. Redwood, 50-289. 
 
 201. The debtor cannot restrain the sale of 
 the homestead under execution upon the 
 
860 
 
 HOMESTEAD, III. 
 
 Claims upon and liens against ; how enforced. 
 
 ground that his other property has not been 
 exhausted without an averment or showing 
 that he has other property : Stevens v. Myers, 
 11-183. 
 
 202. The right to compel a sale of other 
 property before the homestead is sold is not 
 to be enforced by a cross-action, but by a 
 special direction in the execution, and the 
 right may be set up in the answer or obtained 
 upon a summary supplemental showing: 
 Barker v. Rollins, 30-413. 
 
 203. Where a party who has the right to 
 insist that other property before the home- 
 stead shall be applied to the satisfaction of 
 the debt has notice of the proposed sale of 
 the homestead and makes no objection 
 thereto, he will be regarded as acquiescing 
 and cannot afterwards object to the sale on 
 that ground : Foley v. Cooper, 43-376. 
 
 204. Where a party attacked a judicial sale 
 of his property on the ground that he owned 
 no interest subject to execution, and it ap- 
 peared incidentally merely that part of the 
 premises were occupied as a homestead, but 
 it did not appear whether the homestead 
 right was acquired subsequently to the date 
 upon which the judgment was rendered 
 or not, held, that the sale of the property 
 in a lump without setting off the home- 
 stead was not void : McCleary v. Ellis, 54r- 
 311. 
 
 205. Where it does not appear that de- 
 fendant has other property subject to execu- 
 tion, the sale of the homestead which is 
 liable to the indebtedness will be valid unless 
 defendant points out other property: Owens 
 V. Hart, 62-620. 
 
 206. Platting homestead before sale un- 
 der execution : A sale under execution of a 
 tract of land in a lump, which includes the 
 homestead or a part of it, without the home- 
 stead being platted by the owner or by the 
 officer making^ the sale as required by statute 
 (Code, § 1998), is. void: Linscott v. Lamart, 
 46-312 ; Goodrich v. Brown, 63-247 ; Visek v. 
 Doolittle, 69-602. 
 
 207. A sale by the officer of any portion of 
 the property which might have foi-med a 
 part of the homestead without such platting 
 is invalid: White v. Rowley, 46-680; Lowell 
 V. Shannon, 60-713. 
 
 208. It is immaterial in such cases that no 
 objection to the sale of the homestead en 
 
 masse without platting is made: Owens v. 
 Hart, 63-620. 
 
 209. The fact that the sale is made under 
 a special execution is immaterial in this re- 
 spect: Ibid. 
 
 210. Failure of the owner and the sheriff 
 to select and designate the homestead before 
 execution sale of property in which the 
 homestead is included does not render the 
 sale void. The statute is directory : Newmayi 
 V. Franklin, 69-244. 
 
 211. It may be that in such case the sal© 
 is voidable, but where it appeared that after 
 the sale the homestead was abandoned, held, 
 that the trustee of the owner of the home- 
 stead could not maintain an action to set it 
 aside: Ibid. 
 
 212. Where a portion of defendant's farm, 
 upon which he resided, was sold without 
 platting a homestead, but the dwelling and, 
 more than enough land for a homestead were 
 left, held, that the sale might be set aside as 
 between the parties, but was not void: Mar- 
 tin V. Knapp, 57-336. 
 
 213. Where a tract of land including the 
 owner's homestead was sold on special exe- 
 cution in a lump, after first having been 
 offered in forties, held, that there was no 
 pi-ejudice to the owner resulting from failure 
 of the sheriff to mark out and plat the 
 homestead: Brumbaugh v. Zollinger, 59- 
 384. 
 
 214. Even though a homestead right may 
 exist in the undivided interest of a tenant in 
 common, yet in case of an execution sale of 
 such tenant's interest, it is not proper for the 
 officer to set ofif any specific portion as a 
 homestead : Farr v. Reilly, 58-399. 
 
 215. Kefcreuce: The statutory provision 
 (Code, § 2002) for a reference under direction 
 of the sheriff to determine whether any land 
 or buildings are a part of the homestead is 
 not for the purpose of making a selection of 
 the homestead, but to determine whether cer- 
 tain land claimed to be exempt really is so: 
 Wliite V. Bowley, 46-680. 
 
 216. This section contemplates the case 
 where it is conceded that the claimant of the 
 homestead rights has rights of that character 
 which he is entitled to set up, but there 
 is a controversy as to where the line is to be 
 drawn between what is exempt and what 
 is not. It does not apply to a case where 
 
HOMESTEAD, HI, IV. 
 
 861 
 
 Claims against. — Eights of survivor ; descent. 
 
 it is a question as to whether the debtor 
 has any homestead rights at all as against 
 the claims of the creditor: McOrackin v. 
 Weitzel, 70 . 
 
 217. Proportional liability: Where a 
 husband has contributed a portion of the pur- 
 chase price Of a homestead, the title of vrhich 
 is in the wife, the creditors of the husband 
 under claims antedating the acquisition of 
 the homestead may subject such property, to 
 the extent of the husband's contribution 
 thereto, to the payment of their claims, such 
 proportion being treated as equitable assets 
 and sold to satisfy judgments on such claims : 
 Crmtpv. Morton, 49-16; S. C, 53-599; Ha- 
 mUl V. Henry, 69-752. 
 
 218. Earnings of the wife not derived from 
 ' separate property or business, but acquired 
 
 in connection with her husband's property 
 and in the management of the family affairs, 
 do not become the wife's separate property in 
 Such sense that when invested in a home- 
 stead that proportion thereof thus procured is 
 exempt from indebtedness to which the 
 hottiestead in the hainds of the husband is 
 liable : Hamill v. Henry, 69-753. 
 
 219. Taxes and repairs: A husband who 
 occupies with his family a homestead owned 
 by his wife may pay taxes and interest on in- 
 cumbrances thereon, as well as make expend- 
 itures for repairs, vrithout becoming a cred- 
 itor of the wife and acquiring any claim 
 against the property which can be enforced 
 by his creditors : Ibid. 
 
 220. Exemption of proceeds: Where a 
 portion of the homestead is, by proper pro- 
 ceedings, condemned for right of way, the 
 damages allowed are exempt from execu- 
 tion. Whether the proceeds of a volun- 
 tary conveyance by the husband of a 
 portion of the homestead for right of way 
 Would be exempt, quaere: Kaiser v. Seaton, 
 62-463. 
 
 221. The right of action against a railway 
 company for damages caused to the home- 
 stead property by fire negligently set out by 
 such company is exempt from execution for 
 a reasonable time, to. the same extent that 
 the homestead is, and the railway company 
 cannot be garnished for such indebtedness 
 under a judgment whicih could not be en- 
 forced against the homestead: Mudge v. 
 tanning, 68-641. 
 
 lY. Eights of stjetivoe; descent. 
 
 222. Occupancy by survivor: Upon the 
 death of the wife, the husband is entitled to 
 possess and occupy the whole homestead re- 
 gardless of whether he or the wife is owner 
 of the fee, or whether or not there is issue 
 of the marriage : Burns v. Keas, 21-257. 
 
 223. Upon the death of the husband, the 
 wife, though she marries again, may continue 
 to occupy the whole homestead, and it is not 
 liable to partition at the suit of the husband's 
 heirs at law : Nicholas v. Purczell, 31-365. 
 
 224. Occupancy of homestead in lieu of 
 distributive share: A survivor electing to 
 retain the homestead in lieu of the distribu- 
 tive share has only the right to use and oc- 
 cupancy during life, and has no interest 
 which can survive to a second husband or 
 wife: Stevens v. Stevens, 50^491. 
 
 226. Rlghls of occupant: The survivor 
 thus occupying cannot change the home- 
 stead for another: Size v. Size, 34-580. 
 
 220. The surviving widow is entitled to 
 control the rents and profits of the home- 
 stead while she remains in possession thereof: 
 Floyd V. Mosier, 1-513. 
 
 22 7. A widow continuing to occupy the 
 homestead belonging to her former husband 
 has such right to occupancy as to entitle her 
 to sue for injuries to her enjoyment of the 
 property by a wrong-doer, although it may 
 not appear but that her right to the property 
 is subject to be divested at any time : Cain 
 V. Chicago, R. I. & P. B. Co., b4-255. 
 
 228. The-rights of occupancy and posses- 
 sion on the part of the survivor do not confer 
 any title which can be conveyed or can be- 
 come subject to the lien of a judgment: 
 Meyer v. Meyer, 23-359 ; Butterfleld v. Wiclcs, 
 44-310 : Smith v. Eaton, 50-488. 
 
 229. A judgment against a surviving wife, 
 recovered after the death of the husband, 
 does not become a lien upon the homestead 
 in her hands : Briggs v. Briggs, 45-318 ; Nye 
 V. Walliker, 46-306. 
 
 230. The right of the wife to occupy the 
 homestead after the death of the husband is 
 not a right or interest in his estate which she 
 takes by inheritance, but a mere personal 
 right unaccompanied by title or property in- 
 terest: Mahaffyv. Mahaffy, 63-55. 
 
 231. Therefore, held, that a stipulation in 
 
862 
 
 HOMESTEAD, IV. 
 
 Eights of survivor ; descent. 
 
 an ante-nuptial contract, by which the wife 
 accepted the provision therein made in heu 
 of dower and inheritance, did not constitute 
 a relinquishment of the right to occupy and 
 possess the homestead during her hfe : Ibid. 
 
 232. The right of the survivor may be lost 
 by abandonment of the homestead : Butter- 
 field V. Wicks, 44-310. 
 
 233. And after such abandonment it ceases 
 to have the homestead character, and the 
 survivor becomes a tenant in common with 
 other heirs: Orman v. Orman, 26-361. 
 
 234. And partition among such heirs may 
 then be had : Size v. Size, 24^580. 
 
 235. While the survivor is entitled to oc- 
 cupancy, the heirs cannot interfere there- 
 with, nor claim partition: Dodds v. Dodds, 
 26-311. 
 
 236. Setting off distributive share: The 
 right of occupying the homestead or any part 
 of it cannot be retained in addition to the 
 distributive share: Meyer v. Meyer, 23-359 
 (explaining Nicholas v. Purczell, 21-265) ; But- 
 terfield v. Wicks, 44-310. 
 
 237. The survivor has only the right to 
 retain such occupancy in lieu of so much of 
 the distributive share, or such share may be 
 set off to include the homestead : Whitehead 
 V. Conklin, 48-478. 
 
 238. The homestead right does not become 
 extinct until the distributive share has been 
 finally set off : Burdick v. Kent, 52-583. 
 
 239. Election to hold in lien of dower: 
 The survivor is entitled to occupy the home- 
 stead for a reasonable time in which to make 
 an election whether to retain such posses- 
 sion for life, or take a distributive share of 
 the property : Cunningham v. Gamble, 57-46. 
 
 240. During occupancy for such reason- 
 able time the survivor should be allowed to 
 receive the income and profits therefrom. 
 
 .So held as to rent of coal mine on premises: 
 Ibid. 
 
 241. Where the entire homestead exceeds 
 in extent the dower interest of the wife, and 
 she continues occupying it for ten years 
 without making claim to have dower ad- 
 measured, she will be regarded as having 
 elected to take the homestead for life in lieu 
 of the distributive share : Cowm v. Conn, 58- 
 747. 
 
 242. The occupancy of the property as a 
 homestead wUl be considered as an election to I 
 
 hold it as a homestead and not merely a part 
 of it as dower : Butterfleld v. Wicks, 44-310, 
 
 243. The acts of a surviving husband in re- 
 taining possession of the homestead after his 
 wife's death, where its value was greater 
 than his one-third interest in her property 
 would have been, held an election to occupy 
 the homestead during life in lieu of dower: 
 Stevens v. Stevens, 50-491. 
 
 244. While the surviving husband is occu- 
 pying the homestead in the absence of an 
 election to take a distributive share, it is not 
 competent for a court to dispose of his right 
 to occupancy by forcing upon him in Heu 
 thereof a distributive share. His continued 
 occupancy as a survivor wiU be deemed an 
 election to occupy as survivor, even though 
 the distributive shai-e should appear to be the 
 more valuable: Holbrook v. Perry, 66-286. 
 
 245. The occupancy of a homestead under 
 a devise of a life estate of land including the 
 homestead will not be considered as an elec- 
 tion defeating the widow's right to dower : 
 Blair v. Wilson, 57-177. 
 
 246. The survivor electing to retain the 
 homestead for life relinquishes his distributive 
 share, but such relinquishment applies only 
 to the one-third which the survivor is entitled 
 to, where there are children or other descend- 
 ants entitled to inherit, and not to the ad- 
 ditional portion (one-sixth), which the sur- 
 vivor may be entitled to as heir at law, where 
 there are no children: Smith v. Zuckmeyer, 
 53-14. 
 
 247. If the widow is entitled as heir at law 
 to one-half of her husband's property, the 
 other heirs cannot, in the partition of the 
 realty, insist that she include the homestead 
 in her share: Nicholas v. Purczell, 21-265. 
 
 248. Where a widow has her distributive 
 share in the real property of her deceased 
 husband set out to her from the homestead, 
 she can continue to hold the same free from 
 the lien of a judgment against her, not ante- 
 dating the original homestead right : Briggs 
 v. Briggs, 45-318 ; Knox v. Hanlon, 48-252. 
 
 249. Descent: The legal title of the home- 
 stead property, upon the death of the owner 
 thereof, descends to the heirs of such owner, 
 subject to the right of occupancy in the sur- 
 viving husband or wife : Bums v. Keas, 21- 
 257; Cotton V. Wood, 25-43. 
 
 250. Minor children have no such interest 
 
HOMESTEAD, IV — HUSBAND AND WIFE, I, a. 
 
 Descent. — Mutual rights and liabilities. — Property. 
 
 in their parents' homestead during the life 
 of the latter as the law will enforce against 
 the contracts or acts of the parents : Collins 
 V. Chantland, 48-341. 
 
 251. Devise: A wife may devise the home- 
 stead in which she holds the legal title, and 
 the right thereto will pass to the devisee sub- 
 ject to the rights of the surviving husband : 
 Stewart v. Brand, 33-477. 
 
 252. A mortgage given by the devisee cre- 
 ates a lien and may be foreclosed, subject, 
 however, to the homestead rights of the sur- 
 viving husband or wife : Ibid. 
 
 253. Exemption iu hands of heirs: The 
 heir holds the property free from any debts 
 of the ancestor which could not have been 
 enforced against it in his life-time, but it re- 
 mains liable to debts contracted by the an- 
 cestor prior to its acquisition as a homestead : 
 Moninger v. Ramsey, 48-368. 
 
 254. It remains exempt in the hands of 
 the heirs even from charges and expenses 
 of the last sickness and funeral expenses: 
 Knox V. Hanlon, 48-353. 
 
 255. Occupancy of such property by the 
 heirs as a homestead is not essential to its 
 exemption in their hands from antecedent 
 debts: Johnson v. Gaylord, 41-363. 
 
 256. Where the widow abandons the 
 homestead it descends as free from the debts 
 of the ancestor as if there had been no 
 widow: Ibid. 
 
 257. Where, at the time of the death of 
 the wife, owning the fee of the homestead, 
 she and the husband were absent from the 
 homestead, but without having as yet aban- 
 doned it, hdd, that there could not suljse- 
 quently be an abandonment by the husband 
 of his life interest, except by a setting off of 
 a distributive share, and that upon his death 
 the property descended to the heire free from 
 his debts: Bradshaw v. Hurst, 57-74.5. 
 
 258. Where the husband or wife surviving 
 the owner of the fee elects to take a distrib- 
 utive share instead of the right of occujiancy 
 as a homestead during life, but such distrib- 
 utive share is not yet set off and the poi.st«- 
 sion of the homestead continues in the .sur- 
 vivor tmtil death, the property descends or 
 passes by devise free from the debts of such 
 Burvivor: Bwdick v. Kent, 52-583. 
 
 259. "ttTiere a conveyance of the home- 
 stead was made by the husband and wife to 
 
 their son, subject to the right of either grantor 
 to occupy during life, and the husband sur- 
 viving resided until death with his son, who 
 did not reside on the homestead, held, that 
 the son did not acquire the property as a 
 homestead and that it was not exempt from, 
 his debts : Reifenstahl v. Osborne, 66-567. 
 
 HUSBAND AND WIFE. 
 
 I. Mutual eights aud liabilities. 
 
 a. Mutual property rights. 
 
 b. Contracts and conveyances between. 
 o. Remedy by one against tlie other. 
 
 d. Liability of each for acts, contracts 
 
 and debts of the other ; family ex- 
 penses. 
 
 e. Agency of the one for the other. 
 
 n. Powers, eights and liability of mae- 
 
 EIED WOMEN WITH EEFEEENCE TO THIE& 
 PEESONS. 
 
 I. Mutual eights aitd liabilities. 
 a. Mu1/u,al property rights. 
 
 1. Joint property: Where the husband and 
 wife take property jointly, they take as ten- 
 ants in common: Hoffman v. Stigers, 38- 
 303. 
 
 2. Where property is owned jointly by 
 husband and wife the interest of the htis- 
 band may be sold on execution for his debts, 
 and the wife cannot have an injunction to 
 entirely prevent the sale: ilcTigite v. Brin- 
 golf, 43-455. 
 
 3. Bights of hnsband in wife's property: 
 The mere fact that the husband acts for the 
 wife in the collection of notes belonging to 
 her does not vest the title in him: Peck v. 
 HendersTtott, 14HW. 
 
 i. Under former statutes, held, that while 
 tlie wife's choses in action di'i not, by m^e 
 operation of law, pass to her husband bo 
 as to autliorize ixim against her consent to 
 sue upon them jointly or in liis own name, 
 yet lie would be authorized to do the latter 
 in case slie should give and deliver them to 
 him: King v. Oottsehalk, 21-512. 
 
 9. Held, also, that money belonging to a 
 feme Hole did not, as at common law, vest 
 upon her marriage, and in consequence of her 
 marriage, in the itusbiuid, nar oonld it by 
 
864 
 
 HUSBAND AND WIFE, I, a. 
 
 Mutual property rights. 
 
 mere operation of law ever become his: 
 Logan v. Hall, 19-491. 
 
 6. Also held, that the husband did not, by 
 marriage, acquire title to property held by 
 the wife in trust nor could he recover rents 
 and profits for such property against the 
 party beneficially interested: Claussen v. 
 La Franz, 1-336. 
 
 7. Also held, that the wife's right of sur- 
 vivorship in choses in action was termi- 
 nated by their being reduced to possession by 
 the husbandj and that, therefore, where 
 the real estate of the wife was sold after 
 coverture and the notes and mortgages re- 
 ceived therefor were made payable to the 
 husband, the proceeds thereof received by the 
 wife after the death of the husband and as 
 executrix of his estate were held by her as 
 such executrix and not in her own right: 
 MeOrory v. Foster, 1-371. 
 
 8. Held, also, that a lease executed by the 
 husband alone of real property belonging to 
 the wife before marriage terminated upon 
 the granting of a divorce : Wihelm v. Mertz, 
 4G. Gr.,54. 
 
 9. The fact that the wife claims to own 
 personal property and treats it as her own, 
 and her husband has knowledge thereof and 
 acquiesces therein, is sufficient to establish 
 her title thereto : Woolheafher v. Risley, 38- 
 486. 
 
 10. Wife's earnings: Where the husband 
 is resting under no disability, he and not the 
 wife is, as a matter of law, the head of the 
 family. He is bound for her support and en- 
 titled to her earnings when she is not en- 
 gaged in business on her own account : Van 
 Doran v. Harden, 48-186. 
 
 11. The wife is entitled to her wages for 
 services performed for others, but the hus- 
 band is entitled to her labor and assistance 
 in the discharge of those duties and obliga- 
 tions which grow out of the marriage rela- 
 tion: Mewhirter v. Hatten, 4S-288. 
 
 1 2. The wife is entitled to no claim against 
 the husband or his estate for services ren- 
 dered him, such as caring for him during 
 insanity, etc., and a contract for such serv- 
 ices would be void : Grant v. Green, 41-88. 
 
 IS. The wife cannot recover wages from a 
 third party for work performed for the hus- 
 band, as boarding hands, etc., under a con- 
 tract between the husband and such party. 
 
 The husband may, under such circumstances, 
 contract for the services of his wife and re- 
 ceive compensation in discharge thereof with- 
 out her consent : Lyle v. Gray, 47-153. 
 
 14. Where boarding for a prisoner, whom 
 it was impracticable, by reason of his condi- 
 tion, to confine in the county jaU, was fur- 
 nished in the family of the sheriff, held, that 
 the sheriff, as husband, had authority to 
 claim and collect the charges for the services 
 of his wife as well as himself in the boarding 
 of such prisoner, and that an assignment of 
 the claim of the wife for her services was not 
 necessary : Miller v. Dickinson County, 68- 
 103. 
 
 15. The wife's earnings, unless acquired in 
 carrying on an independent business of her 
 own, cannot be made the basis of a claim 
 against the husband which will support a 
 conveyance by him to the prejudice of his 
 creditors: Triplett v. Graham, 58-135. 
 
 16. The wife cannot Degard earnings made 
 in connection with her husband's property in 
 the management of family affairs, where 
 she has naseparate property, as her individual 
 earnings, and where such earnings are ex- 
 pended in the purchase of property, it does 
 not become exempt from her husband's debts: 
 Hamill v. Henry, 69-703. 
 
 Where the wife has a separate employ- 
 ment, she and not the husband can recover 
 for loss of time resulting from personal in- 
 juries : See infra, % 159. 
 
 1 7. Under statutory provisions not now in 
 force, held, that while the property of the 
 wife owned by her at the time of the mar- 
 riage, and such as was subsequently acquired 
 by her by gift or inheritance, was not subject 
 to the debts of her husband, yet that prop- 
 erty acquired by her during life-time, whilst 
 she was receiving the protection and support 
 of her husband, vested in him, and if taken by 
 her in her own name was held in trust for 
 her husband and his creditors : Duncan v. 
 Roselle, 15-501. 
 
 18. Where the wife has separate property, 
 she may use it for trading in real estate 
 without subjecting the reinvested profits to 
 seizure for the payment of the husband's 
 debts: Mitchell v. Sawyer, 31-583. 
 
 19. Where property was purchased by the 
 wife, partly -with her earnings and partly 
 with the income from her separate property, 
 
HUSBAND AND WIFE, I, a, b. 
 
 865 
 
 Mutual property rights. — Contracts and conveyances between. 
 
 held, that so far as her earnings (which by 
 the law then existing belonged to her hus- 
 band) had been used in the purchase, the 
 property was liable to the payment of the 
 husband's debts: McTighe v. Bringolf, i3r- 
 455. 
 
 20. Mortg'a^e on husband's property: 
 The wife may buy in a mortgage upon the 
 homestead standing in the name of the hus- 
 band and hold such mortgage against the 
 homestead: Knox v. Moser, 69-341. 
 
 21. Aclion lor torts to nil'e: At common 
 law it was a well-settled rule that for injuries 
 to the wife during coverture slie must join 
 with the husband in an action. But when- 
 ever the injury was such that the hus- 
 band received special damage, such as loss 
 of society or expense, he might sue in his 
 own name: McKinney v. Western Stage Co., 
 4-420. 
 
 22. Although the husband may not recover 
 for injuries to the wife, yet he may main- 
 tain an action for consequential injuries suf- 
 fered by him, such as loss of services, etc., 
 and such right of action is not merged in 
 the right of action which accrues to the 
 wife : Meivhirter v. Ratten, 43-388 ; Tuttle v. 
 Chicago, R. I. & P. M. Co., 43-518. 
 
 23. The husband may recover for medicine 
 and medical attendance and expenses in- 
 curred on account of the injury to the wife. 
 But if the husband authorizes the wife to 
 prosecute a suit for such expenses and aids 
 .her therein, and permits her to recover and 
 receive the amount recovered, he will be es- 
 topped afterwards to daim recovery for the 
 same matters : Neumeister v. Dubuque, 47- 
 465, 
 
 24. In such case, the fact that the wife has 
 claimed in a former action to have been 
 carrying on a separate business in her own 
 name and has sought to recover for a loss oc- 
 casioned to her in such business by the injury, 
 will not preclude the husband from setting 
 up loss of services of the wife : Ibid. 
 
 25. In an action by the husband to recover 
 for loss of services of the wife resulting from 
 an injury to her, he may show the inability 
 of the wife to perform labor or service result- 
 ing from the injury and the value of the serv- 
 ice thus lost : Ibid. 
 
 As to wife's right to recover in her own 
 name for a tort, see infra, §§ 156-164. 
 Vol. I— 55 
 
 b. Contracts and conveyances hetween. 
 
 26. An ante-imptiiil contract freely and 
 voluntarily entered into, without any fraud 
 or imposition, by which it is provided that 
 each party is to retain control of his or her 
 own property, and also making provision for 
 descent of the property to children by a 
 former marriage, upheld in a particular case : 
 Jacobs V. Jacobs, 43-600, 
 
 27. Under an ante-nuptial contract by 
 which it was agi-eed that each should have 
 the untrammelod and sole control of his or her 
 own property, real and personal, as though 
 no such marriage had taken place, held, that 
 the dower right of the wife was completely 
 waived : Ibid. 
 
 28. An ante-nuptial contract cannot be en- 
 forced by a wife, who after marriage aban- 
 dons her husband and lives apart from him 
 without his consent and without lawful 
 cause, that is, without cause which would 
 be a good gi'ound for divorce. In so doing, 
 the wife does not discharge the duties and 
 obligations of a wife : York v. Femer, 59-487. 
 
 29. An ante-nuptial contract by which the 
 proposed wife, in consideration of an agreed 
 sum to be paid out of the estate of the pro- 
 posed husband on his death, relinquishes and 
 renounces all rights of dower and inherit- 
 ance, held not sufficient to bar the right 
 which she had to the occupancy of the home- 
 stead after the death of the husband: Ma- 
 haffy V. Mahaffy, 63-55. 
 
 30. Facts in a particular case held not 
 sufficient to show fraud in an ante-nuptial 
 contract by which the proposed wife accepted 
 a sum of money in lieu of dower : Ibid. 
 
 31. Conveyances before marriage: A 
 voluntary settlement or conveyance of prop- 
 erty by husband or wife in favor of a third 
 person prior to marriage will be held fraud- 
 ulent as to the marital rights of the other 
 party to the marriage, only when made in 
 contemplation of matrimony and pending a 
 treaty of marriage between the parties: 
 Oainor v. Gainer, 86-337. 
 
 32. A wife cannot, on account of the mar- 
 riage relation, set aside and overthrow the 
 husband's contracts and conveyances made 
 by him before marriage, and of which by the 
 registry laws she is chargeable with notice : 
 Patterson v. Mills, 69-755. 
 
S6G 
 
 HUSBAND AND WIFE, I, b. 
 
 Contracts and convej-ances between. 
 
 33. Contracts between husband and wife: 
 
 The promise by the husband to pay or give 
 money to his wife to induce her to again live 
 with him is not binding, especially where it 
 does not appear that she had any ground for 
 not living with him : Owpm v. Owen, 22-270. 
 
 34. A contract for the purpose of enabling 
 the husband to obtain a divorce without hav- 
 ing any legal cause for it will confer no rights 
 upon the wife enforceable at law against the 
 husband. If the wife agrees for a considera- 
 tion that she will interpose no defense to an 
 action for divorce by her husband; he having a 
 legal cause of divorce, and then makes de- 
 fense, she cannot enforce the contract against 
 her husband : Pearson v. Oummings, 28-344. 
 
 35. Where a deed from the husband to the 
 wife was given in consideration of a dismis- 
 sal by the wife of a proceeding for divorce, 
 held, that, no fraud being made to appear, 
 the deed was valid : Cliew v. Chenv, 38-405. 
 
 36. Where a wife places money in the 
 hands of her husband upon an agreement by 
 him to account to her for it, the transaction 
 creates a debt between them which will con- 
 stitute a valid consideration for a conveyance 
 of real estate by the husband to the wife, if 
 made before any lien thereon attached: 
 Janes v. Brandt, 59-332. 
 
 37. The wife cannot insist in a court of 
 equity, as against hona fide creditors whose 
 rights have intervened, upon a secret, parol 
 agreement with her husband to repay money 
 x-eceived from her, and, under such agree- 
 ment, receive and hold his estate for their 
 mutual benefit. As between husband and 
 wife the rule is otherwise : Hatch v. Gray, 
 31-29. 
 
 38. Where the legal title to the homestead 
 was in the husband, and means derived from 
 the wife's father had gone towards the pur- 
 chase and improvement thereof, held, that 
 an agreement between the husband and wife, 
 by which she joined in the mortgage thereof 
 and was to have the residue remaining after 
 the incumbrance was paid out of the proceeds 
 of the sale, was valid and could be enforced 
 against the creditors of the husband as well 
 as himself: Wright v. Wright, 1&-496. 
 
 39. While courts of equit)' recognize the 
 rule that contracts between husband and 
 wife after marriage are a mere nullity, yet 
 they will, under particular circumstances, 
 
 give full effect and validity to such contracts, 
 although they are not executed by the inter- 
 vention of a trustee ; but to sustain such con- 
 tract as against the wife the husband must 
 be held to the utmost good faith. A shght 
 circumstance of fraud or circumvention 
 would be sufficient to render it invalid: 
 Blake v. Blake, 7-46. 
 
 40. Therefore, lield, that a contract be- 
 tween husband and wife by which the latter, 
 for a valuable consideration, after decree of 
 divorce, released to the former aU her dower 
 interest in his real estate was binding : Ihid. 
 
 41. The wife may make a loan of money 
 wliich she has in her own right, to her hus- 
 band, and take security therefor upon land 
 owned by him : Doyle v. McGuire, 38-410. 
 
 42. A post-nuptial contract is valid as to 
 jsartiea and creditors, if made for an honest 
 purpose and a good consideration : Butler v. 
 Rickets, 11-107. 
 
 43. Agreement reliuqnishing dower in- 
 terest : The present statutory provision (Code, 
 g 2203) renders invalid any agreement be- 
 tween husband and wife, even in contempla- 
 tion of a separation, for the relinquishment 
 of their respective interests, including dower 
 interest in each other's real property : Linton 
 V. Crosby, 54-478. 
 
 44. The wife's right to alimony in case of 
 divorce is not property within the meaning 
 of the statutory provision above refen-ed to, 
 and a contract between the husband and 
 wife to convey property to the wife in lieu, 
 of alimony may be valid : Martin v. Martin, 
 65-355. 
 
 45. Before the enactment of this statutory 
 provision, it was held that, while the law 
 would not sanction an agi-eement between 
 husband and wife contemplating a future 
 separation, nor enforce an agreement to sep- 
 arate if one of the parties was unwilling to 
 do so, yet an agreement fairly entered into 
 under a resolution of present separation, as 
 to property rights and terms of separation, 
 and partly executed in good faith, would be 
 upheld against the other party, where jus- 
 tice should demand it : McKee v. Reynolds, 
 26-578. 
 
 46. And held that a conveyance by wife to 
 husband under an agreement of separation, 
 
 •relinquishing her right of dower in his real 
 estate and releasing all claim for support and 
 
HUSBAND AND WIFE, I, b, c. 
 
 867 
 
 Contracts and conveyanees between. — Remedies. 
 
 maintenance, would bo upheld in the ab- 
 sence of fraud wlien supported by a consid- 
 eration: Robertson v. Robertson, 25-350. 
 
 47. Held, also, that a deed of separation by 
 which, in consideration of a release from lia- 
 bility of the wife's debts and relinquishment 
 by her of claim of dower, the husband un- 
 takes to pay the wife a sum by way of main- 
 tenance, couched in such language as not to 
 be calculated to encourage separation, might 
 be supported, and an action for the mainte- 
 nance agreed upon might be maintained: 
 Goddard v. Beebe, 4 G. Gr., 136. 
 
 48. Transfers of property between lins- 
 band and wife: While, in dealings between 
 husband and wife with reference to her prop- 
 erty, by which the wife's property passes into 
 the husband's hands, the husband will be 
 held to the strictest fairness and integrity, 
 yet if no fraud, circumvention or undue in- 
 influence appears, the transaction will be 
 upheld: MeOrory v. Foster, 1-271. 
 
 49. Advancement to wife: If a husband 
 purchases land and takes the title in the 
 name of the wife, or if he permits the wife 
 to use his money in the purchase in her own 
 name, the presumption is very strong, if not 
 conclusive, as between them, and as between 
 the wife and the heirs of the husband, that 
 it was intended as an advancement and pro- 
 vision for the wife, and not as a trust in 
 favor of the husband : Sunderland v. Sun- 
 derland, 19-325. 
 
 50. Convey ances in fraud of creditors: A 
 secret parol transfer of notes by the husband 
 to the wife will not necessarily be void if for 
 a consideration: Nicholas v. Higby, 35-401. 
 
 51. Where land is bought by the husband 
 and the legal title taken in the wife's name, 
 and the purchase money paid from products 
 of the estate, such facts will not give the 
 wife an equity or claim thereto paramount 
 to. that of existing creditors from whom the 
 property is sought to be secreted: Tioonic 
 Bank v. Harvey, 16-141. 
 
 And further as to fraudulent and volun- 
 tary transfers between husband and wife, 
 see FttATXDtnLENT Conveyances. 
 
 52. Husband's contributions to purchase 
 or improvement of wife's property: Where 
 a husband has contributed to the purchase 
 and improvement of property standing in the 
 name of the wife, his interest therein, pro- 
 
 portionate to the amount of such contribu- 
 tion, may be subjected to the payment of his 
 debts to the extent to which his money has 
 been invested therein; Croup v. Morton, 
 49-16; S. C, 53-599; Hamill v. Henry, 69- 
 753. 
 
 53. A husband who occupies with his fam- 
 ily a homestead owned by his wife may pay 
 taxes and interest on incumbrances thereon, 
 as well as expendit"ures for repairs, without 
 becoming a creditor of the wife or rendering 
 her property liable to that extent for his 
 debts : Hamill v. Henry, 69-753. 
 
 54. Creditors of the husband have no lien 
 upon the land of the wife by reason of im- 
 provements made thereon by him to the ex- 
 tent of the money thus invested, if she is not 
 guilty of collusion or fraud, although she 
 has knowledge of and assents to the expend- 
 iture : Coming v. Fowler, 34^584. 
 
 55. The increase of the personal property 
 of the wife belong s to her, and is not subject 
 to her husband's debts, although he expends 
 labor and care in the keeping thereof: Rus- 
 sell V. Long, 53-350. 
 
 56. Any devise whose object is to enable a 
 married woman to accumulate property in 
 her own name through the labor of her in- 
 solvent husband will be looked upon with 
 suspicion, and Tnay under proper circum- 
 stances be considered an intent to defraud 
 the husband's creditors; but the mere fact 
 that the insolvent husband performs labor 
 upon the farm owned or rented by his wife 
 will not necessarily evince such intent. An 
 insolvent man should, as a matter of duty, 
 provide himself and family with food and 
 clothing, and if the design of performing 
 labor upon the farm owned or rented by his 
 wife is merely to furnish reasonable family 
 support, the intention will not be considered 
 fraudulent : Cam v. Royer, 55-650. 
 
 c. Memedies hy one against the other. 
 
 57. Action by wife iigainst hnsband: 
 
 Under a former statutory provision giving a 
 married woman the right to sue in her own 
 name, when the action concerned her sep- 
 arate property, held, that a wife, compelled 
 to leave her husband for cause, or driven 
 away by him without cause, miglit maintain 
 an action of replevin against him in her own 
 
868 
 
 HUSBAND AND WIFE, I, c, d. 
 
 Remedies by one against the other. — Liabihty of each for debts of the other. 
 
 name to obtain possession of her separate 
 property : Jones v. Jones, 19-236. 
 
 58. The fact that there has been a separa- 
 tion of the husband and wife without cause 
 will not authorize the wife to maintain an 
 action against the husband to recover prop- 
 erty owned by her bef oi'e marriage : McMullen 
 V. McMullen, 10-413. 
 
 59. "Whether an action at law will lie 
 during coverture by the wife against the 
 husband for the recovery of a money judg- 
 raent, qucere: Owen v. Owen, 23-270. 
 
 60. The statutory provision authorizing 
 the wife to sue in her own name does not 
 give a right of action generally against her 
 husband. Such right of action exists only 
 under Code, § 3204, which authorizes the 
 husband or wife to maintain an action against 
 the other for the i-eoovery of property, or for 
 any right growing out of the same : Peters v. 
 Peters, 42-182. 
 
 61. Therefore the husband or wife has no 
 right of action against the other for tort: 
 lUd. 
 
 62. Cliiinis of the one against the estate 
 of the other: Where the husband bor- 
 rows the separate money of the wife and 
 promises to repay it, especially where the 
 promise is reduced to writing and the rights 
 of creditors are not prejudiced or defeated, 
 equity will enforce the contract against him, 
 01-, if he is deceased, against his estate : Logan 
 V. Hall, 19-491. 
 
 63. So where the wife loaned to the hus- 
 band money out of her separate estate with 
 the expectation and promise that it should 
 be rep^Bjto her, and the husband afterwards 
 executeStend dehvered to her notes for the 
 amount received, held, tliat such notes con- 
 stituted a valid and binding claim against the 
 husband, which after his death could be en- 
 forced against his estate : Ibid. 
 
 64. But in such case, lield, that the wife 
 was not entitled to interest on the sum 
 loaned: Ibid. 
 
 65. Where the wife took from her husband 
 while sick a large sum of money, subse- 
 quently evading his request to return it ex- 
 cept as to a small portion, and after her death 
 the husband's assignee filed a claim for the 
 sum against her estate, held, that the posses- 
 sion of the money by the wife vr^as the pos- 
 session of the husband during her life, and 
 
 after her death the husband or his assignee 
 might assert his right to its possession as 
 against her executor : Davidson v. Smith, 20- 
 466. 
 
 The wife has no claim against the hus- 
 band's estate for money of hers used by him 
 in the support of the family: See infra, 
 §§ 116-118. 
 
 66. Where the wife gives the husband 
 money for the purpose of aiding in purchasing 
 a homestead, which is so used, his estate can- 
 not he held liable for the money advanced : 
 Oarrett v. Baldwin, 40-688. 
 
 d. Liabjlity of each for acts, contracts 
 and debts of the other; family 
 
 expenses. 
 
 67. Liability of husband for wife's torts: 
 
 Prior to the enactment of Code, g 2305, ex- 
 pressly providing that the husband shall not 
 be responsible for civil injuries committed by 
 the wife, the husband was liable for torts 
 of the wife as at common law : McElfresh v. 
 Kirkendall, 36-224; Lusev. Oaks, 36-562. 
 
 68. Husband's liability for wife's neces- 
 saries: In order to enable a party to recover 
 against a husband for necessaries furnished 
 to the insane wife, it need only be shown 
 that she was compelled to leave the husband's 
 house on account of cruel treatment or im- 
 proper conduct on his part. In such case 
 the husband is presumed to extend to his 
 wife a general credit for necessaries, such as 
 meat, drink, clothes, medicine, etc., suitable 
 to his degree and circumstances : Descelles v. 
 Kadmus, 8-51. 
 
 69. The husband is hable on an implied 
 undertaking for necessaries supplied to the 
 wife. Whatever is suitable and proper for 
 the wife, considering her station in life, is in- 
 cluded in necessaries, and that term is not 
 confined to the supply of things demanded 
 for her sustenance, apparel and health, but 
 extends to whatever is necessary for her hap- 
 piness, comfort and enjoyment in the station 
 she occupies as to wealth and fashion : Porter 
 V. Briggs, 38-166. 
 
 70. Husband's liability for attorney's 
 fees of wife in divorce suit: Therefore, held, 
 that the husband was liable for services ren- 
 dered to the wife by an attorney in establish- 
 ing her innocence of the charge of adultery 
 
HUSBAND AND WIFE, I, d. 
 
 809 
 
 Liability of each for debts of the other. 
 
 made by the husband in an action for di- 
 vorce: Ibid. 
 
 71. There is an implied liability of the 
 husband to pay fees of the wife's attorney in 
 a divorce suit brought by her ff it is shown 
 that the attorney acted in good faith, and 
 there is no evidence of collusion or that the 
 suit was brought for oppression : Preston v. 
 Johnson, 65-285. 
 
 72. But in an earlier case it was held that 
 the attorney's fees incurred in carrying on a 
 suit for divorce were not necessaries for 
 which the husband could be held liable: 
 Johnson v. Williams, 3 G. Gr., 97. 
 
 73. The liusbaiid's liability for his wife's 
 debts contracted before marriage could be 
 enforced at common law by an action against 
 husband and wife jointly : Reunecker v. 
 Scott, iG.Gr.. 185. 
 
 74. Liability of wife's property lor hus- 
 band's debts: Under the provisions of Rev., 
 §§3499, 3502, rendering the wife's property 
 left in the control of the husband subject 
 to his debts, unless a claim of ownership 
 thereof was signed by the wife, acknowl- 
 edged and recorded (which provisions are 
 entu-ely superseded by Code, § 2203, declar- 
 ing that the wife's property shall not under 
 any circumstances be liable for the hus- 
 band's debts), held, that if the married 
 woman allowed her personal property to 
 pass under the control of the husband with- 
 out having filed notice of her ownership, it 
 was liable to be taken in execution for tlie 
 claims of a person who gave credit to the 
 husband, while the property was in his pos- 
 session, without notice of the wife's owner- 
 ship: Mazouekv. Iowa Northern R, Co., 31- 
 559. 
 
 75. Held, also, that the wife could exempt 
 her property in the husband's hands from 
 liability for his debts contracted while the 
 property was under his control, only by filing 
 the notice provided for, before the debt had 
 been contracted: Stewart v. Bishop, 33-584. 
 
 76. Also held, that where the husband 
 having the wife's property within his control, 
 without such notice having been filed, after- 
 wards exchanged it for other property, the 
 latter became likewise liable for his indebted- 
 ness: Presnall v. Herbert, 34-539. 
 
 77. Also held, that the property of the wife 
 under the control of the husband, in the ab- 
 
 sence of such notice, was subject to seizure 
 upon execution for costs in a criminal prose- 
 cution against the husband : Oray v. Ferreby, 
 36-146. 
 
 78. But held, that in order to render the 
 wife's property liable, the control of the hus- 
 band over it must be permissive on her part 
 or with her assent: Nicholas v. Higby, 35- 
 401. 
 
 79. And that where the wife had notes in 
 her own right, and which she placed in her 
 husband's hands for the purpose of having 
 them left in a place of deposit and they were 
 so left, a receipt therefor having been taken 
 in her name and for her own use and benefit, 
 such notes were not liable for his debts ; Ibid. 
 
 80. Also held, that the wife's interest as 
 mortgagee not being inconsistent with the 
 husband's possession, slie need not give notice 
 of her right in mortgaged property except so 
 far as such notice was imparted by the re- 
 cording of the mortgage : Goodrich v. Mun- 
 ger, 30-343. 
 
 81. Under such provisions, held, that 
 where household furniture, fixtures and the 
 like were used in the house occupied by the 
 husband and wife, the property was consid- 
 ered as being in the possession of the hus- 
 band and under his control : Smith v. Hewett, 
 13-94; Odell v. Lee, 14-411; Miller v. Steele, 
 39-527. 
 
 82. Also held, that a wife who made a 
 loan to her husband, taking his notes there- 
 for at the time, need not file with the re- 
 corder her claim thereto as separate prop- 
 erty, in order to preserve such claim against 
 his creditors: In re Alexander, 37-454. 
 
 83. But under such provisions the per- 
 sonal property of the wife did not, as at com- 
 mon law, vest at once in the husband, and as 
 between him and the wife it continued to be 
 the property of the wife, although under the 
 husband's control ; but in favor of third per- 
 sons acting in good faith without knowledge 
 of the real ownership, the property under 
 the husband's control would be presumed to 
 have been transfen-ed to him, which pre- 
 sumption could be rebutted only by pursuing 
 the course prescribed in the statute with ref- 
 erence to notice of ownership: Miller v. 
 Steele, 39-537 ; Jones v. Jones, 19-336. 
 
 84. The wife remained owner of the prop- 
 erty and might dispose of it at pleasure be- 
 
870 
 
 HUSBAND AND WIFE, I, d. 
 
 Liability fox- family expenses. 
 
 fore the rights of the creditors attached: 
 Root V. Sohaffner, 39-375. 
 
 85. Under this statutory provision it was 
 held, also, that the wife's property left in the 
 control of the husband after marriage did not 
 thereupon become liable for debts of the hus- 
 band contracted before marriage: Patterson 
 V. Spearman, 37-36. 
 
 86. Under such provisions, held, also, that 
 failure of the wife to give the required notice 
 would not entitle heirs or personal represen- 
 tatives of the husband to claim property of 
 the wife left under the husband's control, and 
 that the statute of limitations as against the 
 wife's right to recover from her husband's 
 estate the value of such property did not 
 commence to run until his death or their 
 separation : Lower v. Lower, 46-535. 
 
 87. Under the provisions of the present 
 Code (§ 3203), the property of the wife cannot 
 be taken in payment of the husband's debts, 
 even where it is reduced to the possession of 
 the husband and the creditor has no notice of 
 the wife's ownership : Schmidt v. Iloltz, 44- 
 446. 
 
 88. But in so far as this section renders 
 jjroperty of the wife which would, under 
 the previous statute, have been liable to 
 execution on a judgment against the hus- 
 band, exempt thei-efrom, it does not apply to 
 contracts made before the taking efEect of 
 the Code: Ihid. 
 
 89. The previous statutory provisions have 
 no application to a case where the creditor 
 has become such, after the taking effect of 
 the present Code provisions : Jones v. Brandt, 
 59-333. 
 
 90. Liability of husbiind and wife for 
 family expenses :i Although this section pro- 
 vides that family expenses axe chargeable 
 upon the property of both husband and wife, 
 it has been treated the same as if it provided 
 that both shall be personally liable for family 
 expenses. The evident object and purpose 
 of the statute is that the property and means 
 of the husband and wife shall be devoted to 
 the support of the family so far as necessary 
 for that purpose : Devendorf v. Evierson, 66- 
 698. 
 
 91. In the absence of fraud and collusion 
 between the husband and the creditor, the 
 
 acts, agi-eements and promises of the hus- 
 band in relation to family expenses, etc., are 
 binding upon the wife, without any express 
 consent or action on her part. The husband 
 may change the form of indebtedness, as by 
 giving a new note, without releasing her: 
 Lawrence v. Sinnamon, 34-80. 
 
 92. A change by the husband contracting 
 the indebtednes3, of the evidence thereof, 
 from an oral contract to a note and from 
 note to a judgment, will not terminate the 
 liability of the wife, and the note will con- 
 tinue enforceable against the property of the 
 wife as long as the right of action against 
 the husband exists : Frost v. Parker, 65-178. 
 
 93. The statute of limitations commences 
 to run in favor of the wife as against an in- 
 debtedness for family expenses incurred by 
 the husband, only from the maturity of the 
 indebtedness as contracted by the husband ; 
 and where the husband gave his note in 
 payment of an account for family expenses, 
 held, that an action against the wife was not 
 barred until the expiration of the statutory 
 period on the note : Lawi'ence v. Sinnamon, 
 34-80; Davidson v. Biggs, 61-309; Wag- 
 goner V. Turner, 69-137. 
 
 94. The fact that a creditor has brought 
 an acti<5n against the husband alone, and ob- 
 tained judgment thereon by consent, does 
 not extend the statute of limitations as 
 against the wife until the judgment shall be- 
 come barred : Polly v. Walker, 60-86. 
 
 95. Where the husband, after the indebt- 
 edness was contracted, gave a note therefor 
 drawing ten per cent, interest and providing 
 for attorney's fees, held, that a recovery 
 could not be had against the wife for the at- 
 torney's fees, nor for interest beyond six per 
 cent. : Fitzgerald v. McCarty, 55-703. 
 
 96. The wife is liable although the vendor 
 made the contract with, and extended the 
 credit to, the husband alone : Smedley v. Felt, 
 41-588. 
 
 97. In the cases contemplated in this sec- 
 tion, the wife is jointly liable with the hus- 
 band and the indebtedness is the debt of 
 both: Ibid. 
 
 98. And she maybe sued thereom alone: 
 Farrar v. Emery, 52-73-5. 
 
 99. A personal judgment may be rendered 
 
 ' Code, § 2214. The expenses of the family and the education of the children are chargeable upon the prop 
 erty of both husband and wife, and in relation thereto they may be sued jointly or separately. 
 
HUSBAND AND WIFE, I, d. 
 
 871 
 
 Family expenses. 
 
 against the wife where she is sued jointly 
 with the husband for family expenses, not- 
 withstanding the husband has a discharge in 
 bankruptcy : Jones v. Olass, 48-345. 
 
 100. The creditor may, if he sees proper, 
 join the wife and husband in the same action. 
 The allowance of a separate action against 
 the wife is simply an additional remedy and 
 is optional: Waggoner v. Turner, 69-137. 
 
 101. The remedy against the wife for 
 family expenses incurred by the husband is 
 not limited to a personal judgment. By a 
 proper proceeding, the wife's property may 
 be pursued without such judgment being 
 had : Prost v. Parker, 65-178. 
 
 102., Where the proceeding against the 
 wife is brought by an assignee of the claim 
 against the husband for family expenses, the 
 remedy against the property of the wife will 
 not be defeated by the fact that no assign- 
 ment of the claim against the wife is shown : 
 Ibid. 
 
 103. What deemed family expenses: 
 Under the statutory provision above referred 
 to, expenses of the family are not limited to 
 necessary exjDenses. Any expenditure is 
 contemplated which is incurred on account 
 of articles to be used in the family : Smedley 
 V. Felt, 41-588. 
 
 104. Held, that the purchase of a cook- 
 stove and fixtures come properly under the 
 head of family expenses: Finn v. Rose, 13- 
 563. 
 
 105. So held, also, as to the purchase of a 
 piano : Smedley v. Felt, 41-588. 
 
 108. Also as to the purchase of an organ : 
 Frost V. Parker, 65-178. 
 
 107. So, where the husband purchased a 
 watch and chain and other jewelry, apart of 
 which was presented to his wife and the re- 
 mainder used in the family, held, that the 
 wife was liable therefor as a family expense, 
 although she had no knowledge that the 
 articles were not paid for until some time 
 after their purchase : Marquardt v. Flaugh- 
 ter, 60-148. 
 
 108. The purchase of a reaping machine, 
 used by the husband in prosecuting his busi- 
 ness of farming, by which he supports his 
 family, is not a family expense for which the 
 wife is liable : McCormick v. Muth, 49-536. 
 
 109. Nor is the purchase of a plow: Rus- 
 sell V. Long, 52-350. 
 
 1 10. Expenses for the treatment of an in- 
 sane wife in a hospital provided by the state, 
 where such treatment is not given by any 
 contract with the husband, express or im- 
 plied, cannot be regarded as a family ex- 
 pense for which he is liable: Delaware 
 County V. McDonald, 46-170. 
 
 111. To constitute a family expense, it is 
 essential that the thing for which the ex- 
 penditure was incurred should have been 
 used or kept for use in the family : Fitzger- 
 ald V. McCarty, 5.5-703. 
 
 112. It is not the purpose of this statutory 
 provision to declare what expenditures are 
 to be regarded as family expenses, but simply 
 to provide a remedy therefor against both 
 husband and wife. Expenses for medical 
 service furnished to an adult daughter at 
 her request, while living at her father's house 
 as a member of his family, are not charge- 
 able upon his property as family expenses, 
 there being no liability therefor on his part 
 at common law : Blachley v. Laba, 63-32. 
 
 1 13. Where the wife has purchased goods 
 of a merchant with whom the husband has 
 no account, and to whom he has given no- 
 tice in writing not to sell goods to the wife 
 and charge them to him, it not appearing^ 
 but that the husband otherwise provides nec- 
 essaries for the family, the merchant cannot 
 hold the husband liable as for family ex- 
 penses : Devendorf v. Emerson, 66-698. 
 
 114. A party who furnishes money to the 
 husband to pay indebtedness for family ex- 
 penses has no right of' action against the 
 wife therefor, where the money is not fur- 
 nished at her request, nor upon an assign- 
 ment of the account : Sherman v. King, 51- 
 182. 
 
 115. Money borrowed for and used in pur- 
 chasing articles which, if obtained on credit, 
 would constitute proper items of family ex- 
 pense, cannot itself be treated as a family 
 expense : Davis v. Ritehey, 55-719. 
 
 116. Wife's property used for expenses 
 of tlie family: Where a wife allows her 
 husband to expend her money for expenses 
 of the family without any agreement with 
 him for repayment, she cannot recover back 
 from him or his estate the sum so used: 
 Courtright v. Courtright, 53-57. 
 
 117. Money of the wife in the husband's 
 hands, invested by her consent in the busir 
 
872 
 
 HUSBAND AND WIFE, I, e; H. 
 
 Agency. — Conveyances by married women. 
 
 ness from, which the support of the family 
 arises, will be deemed devoted to the support 
 of the family, provided that the amount so 
 used is within the sum necessary for the 
 family support ; and where it appears that 
 money of the wife has been collected by the 
 husband and not accounted for, it will be 
 presumed that it was so applied, and the wife 
 cannot maintain a claim therefor against the 
 estate of the husband : Patterson v. Hill, 61- 
 534. 
 
 118. No obligation to reimbnrse: The 
 statutory provision, making the property of 
 both husband and wife chargeable for family 
 expenses, is applicable not only as to third 
 persons but also as between husband and wife, 
 and the duty of supporting the children is 
 cast equally upon both. If such duty is per- 
 formed by one parent, a promise cannot be 
 inferred or implied that the other shall reim- 
 burse the one who furnishes the sujoport. So 
 held with reference to the support of the 
 children by the mother after abandonment 
 by the father: Johnson v. Barnes, 69-641. 
 
 e. Agency of the one for the other. 
 
 119. By ratification: The husband may 
 act as agent for the wife, but in order to bind 
 her he must be previously authorized to so 
 act, or she must subsequently, with express or 
 implied knowledge of his act, ratify it. The 
 evidence necessary to establish such ratifica- 
 tion must be of a stronger and more satisfac- 
 tory character than" that required to establish 
 a ratification by the husband of her acts as 
 his agent, or as between independent parties : 
 McLaren v. Hall, 26-297. 
 
 120. A wife, who has knowledge of the 
 fact that debts are contracted by her hus- 
 band for the improvement of her separate 
 property and acquiesces in the appropriation 
 of the property purchased to the impi-ove- 
 ment of her own separate estate, subjects 
 her property to an equitable lien for the value 
 of the material furnished : Miller v. Hollings- 
 icorth, 36-163. 
 
 121. Inferrefl: While the husband is not, 
 by virtue of the marital relation, agent of 
 the wife in respect to the wife's property, 
 yet as to the shipment or preservation of the 
 household goods jointly used by them, some- 
 thing may be inferred from the marital re- 
 
 lation, and the agency of the husband maybe 
 inferred from slighter circumstances than 
 would be necessary to establish agency on the 
 part of a stranger. In such case, it is error 
 to charge the jury that the proof of agency 
 must be of the same character and the 
 same weight as between husband and wife, 
 as is required to show agency in any other 
 person : Furman v. Chicago, R. I. & P. R. 
 Co., 62-895. 
 
 122. Where the husband delivered house- 
 hold goods of a wife to a railroad company 
 for shipment, taking a bUl of lading in the 
 name of the wife, and transacted with the 
 company the entire business relating to the 
 shipment, and afterwards had such bUl of 
 lading in his possession and exhibited it to 
 the agent of the company, and gave direc- 
 tions as to the reshipment of the goods, held, 
 that such facts were entitled to consideration 
 as tending to prove the authority of the hus- 
 band to act for the wife in the premises, and 
 that under such circumstances the company 
 had tlie right to consider the husband as the 
 wife's duly authorized agent in regard to the 
 shipment, unless notified to the contrary: 
 Ibid.; S. C, 68-219. 
 
 123. By necessity: Where the husband 
 deserts the wife and leaves her to provide for 
 the family as best she can, out of such means 
 of support as she has, she may sell property 
 of the husband for the purpose of supporting 
 the family, nor is she bound to wait until 
 destitution has become complete, before re- 
 sorting to such sale: Rawson v. Spangler, 
 62-59. 
 
 124. The wife of an absconding husband 
 holding property which was exempt in his 
 hands may sell the same and appropriate the 
 proceeds, free from any claim for his debts, 
 in the same manner that he might have 
 done : Waugh v. Bridgeford, 69-334. 
 
 II. POWEES, EIGHTS AND LIABILITIES 
 OF MARRIED WOMEN WITH EBF- 
 EEENCE TO THIED PEESONS. 
 
 125. Conveyances; acknowledgment 
 apart from husband: At common law a 
 wife could convey her real estate only by 
 uniting with her husband in levying a fine. 
 The mode prescribed in the statute formerly 
 in force in this state, and which is the mode 
 
HUSBAND AND WIFE, II. 
 
 873 
 
 Conveyances by married women. 
 
 generally adopted in this country, of alien- 
 ating the property by a deed acknowledged 
 apart from the husband, is a substitute for 
 the common-law fine and an enlargement of 
 the power of alienation; but in order that 
 her deed may be operative to any extent and 
 for any purpose, it is necessary to conform 
 fully to the provisions of the statute ; there- 
 fore, held, that a deed by a man-ied woman, 
 the acknowledgment of which failed to state 
 that she was made acquainted with the con- 
 tents thereof as required by such statute, was 
 void: Heatonv. Fryberger, 38-185. 
 
 126. Further, held, that the omission of 
 the name of the grantor in such an instru- 
 ment was fatal to it as a conveyance : Ibid. 
 
 127. A court of equity had no power, 
 prior to the passage of a statute to that ef- 
 fect (not now in force), to correct a mistake or 
 defect in the deed of a married woman : Ibid. 
 
 128. Under tlTe statutory provisions as to 
 examination of wife apart from husband, 
 held, that the fact of separate examination not 
 appearing from the certificate of acknowl- 
 edgment could not be shown by parol evi- 
 dence: OFerrallv. Simplot, 4-381. 
 
 129. But held, that the fact that the ac- 
 knowledgment was defective could not be 
 taken advantage of by one purchasing the 
 title with notice of a prior conveyance by a 
 maiTied woman, thus defectively acknowl- 
 edged, she, herself, making no objection to 
 the prior deed or the title attempted to be 
 conveyed thereby: Dussaume v. Burnett, 
 5-95. 
 
 130. During the existence of the statutory 
 requirement just referred to as to private ex- 
 amination of the wife, the steps required by 
 the statute were essential to the validity of a 
 release of dower by the wife or a conveyance 
 of her lands by a voluntary deed executed by 
 herself and husband : Simms v. Hervey, 19- 
 273. 
 
 131. Joint deed: Under a statute provid- 
 ing that real estate owned by a married 
 woman might be sold by the joint deed of 
 the husband and herself , held, that the mar- 
 ried woman was not authorized to convey 
 such property as a single woman, without 
 her husband joining in the deed : Miller v. 
 Wetherhy, 12^15. 
 
 132. Estoppel: Where the particular stat- 
 utory provisions required as to the convey- 
 
 ance of land by the wife had not been com- 
 plied with, held, that the deed being void 
 would not operate to defeat her title by es- 
 toppel. Neither would the acceptance by 
 her of a mortgage from the grantee in such 
 void deed estop her from asserting title in 
 conflict therewith : Ibid. 
 
 133. The act of the wife in joining with 
 the husband in a wan-anty deed of his prop- 
 erty will not bind her personally to such 
 conveyance nor estop her from afterwards 
 asserting title to the property under a subse- 
 quent conveyance to her procured in her own 
 name : C'hilds v. McChesney, 20-431. 
 
 Further as to how far a married woman is 
 estopped or bound by covenants in deeds in 
 which she joins with her husband, see Con- 
 veyances, §§ 23, 24. 
 
 134. Present power to convey: Under 
 later statutory provisions than those above 
 referred to, a married woman may incumber 
 or convey real estate held in her own right, 
 and may subject it to a mechanic's lien : San- 
 bom V. Casady, 21-77. 
 
 135. Married women being empowered by 
 statute (Code, § 1935) to convey or incumber 
 any real estate or interest therein belonging 
 to them, it seems that a wife may contract 
 with the purchaser of j)roperty from her hus- 
 band to relinquish her dower interest by a 
 separate contract from that of the convey- 
 ance: Dunlap V. Thomas, 69-858. 
 
 Further as to relinquishment of dower, see 
 Estates of Decedents, §§ 306-321. 
 
 136. Fraud of husband: False representa- 
 tions made to the wife by the husband, or un- 
 due influence exerted by him to induce her 
 to execute a mortgage on her separate prop- 
 erty for his benefit, which is afterwards duly 
 acknowledged by her, will not prejudice the 
 rights of the mortgagee, if such conduct was 
 without his instigation, procurement, knowl- 
 edge or consent : Cheen v. Scranage, 19-461. 
 
 To the same point with reference to con- 
 veyances or incumbrances of the homestead, 
 see Homestead, g§ 116-121. 
 
 As to conveyances procured by fraud and 
 dtiress, see Conveyances, §§ 44, 45. 
 
 In general, as to conveyances by married 
 women, see. also, Conveyances, §§ 14-24. 
 
 187. Mortgaging separate property as 
 security for others: Under previous statu- 
 tory provisions which did not confer upon the 
 
HUSBAND AND WIFE, U. 
 
 Liability of married women on contracts. 
 
 wife the unlimited power to contract which 
 she enjoys by present statutes, held, that a 
 wife might execute a mortgage conveying 
 lier separate property to secure either her 
 own or husband's debts, although she could 
 not bind herself as surety for her husband 
 by a contract not relating to her separate 
 property: Wolff v. Van Metre, IQ-lZi; Simms 
 V. Hervey, 19-273; Green v. Scranage, 19-461. 
 
 138. But held that the execution of such 
 mortgage upon her separate propei-ty to se- 
 cure her husband's debts did not render her 
 personally liable beyond the extent of such 
 security : Wolff v. Van Metre, 19-134. 
 
 139. Where the wife gave her note, se- 
 cured by mortgage on real estate standing in 
 her own name, but of the title to wliich she 
 knew nothing until about the time the note 
 was given, and i-eceived no consideration for 
 sucli note, held error to direct a general exe- 
 cution to issue against her, in case the mort- 
 gaged property failed to pay the debt : John- 
 son County V. Rugg, 18-137. 
 
 140. Under the same statutory provisions, 
 held, that the contracts of the wife, binding 
 her separate property as security for the 
 debts of others than her husband, could, in 
 equity, be enforced against her separate 
 property although they were not enforcible 
 at law: First Nat. Bank v. Haire, 36-443; 
 Low V. Anderson, 41-476. 
 
 141. And that, in such case, the wife 
 would be estopped from setting up the in- 
 validity of such contract as to a person who 
 had parted with money or property on the 
 faith of such security, and of which she had 
 the benefit: First Nat. Bank v. Haire, 36- 
 443. 
 
 142. Liability as surety: Under the Re- 
 vision of 1860, which did not confer upon 
 the wife the full power to contract which 
 she now possesses, held, that she was not per- 
 sonally liable upon a note signed by her as 
 surety for her husband : Wolff v. Van Metre, 
 19-134; S. a, 23-397; Van Metre v. Wolf, 
 37-841. 
 
 143. But that if the wife failed to make 
 defense to an action against her on such note, 
 and judgment was rendered against her, it 
 would be as binding as any other personal 
 judgment : Ibid. ; Outhrie v. Howard, 33-54. 
 
 144. Under the same statutory provisions, 
 lield, that the separate estate of the wife 
 
 could not be charged with the payment of a 
 note signed as surety by her for her husband : 
 Sweazy v. Kammer, 51-643. 
 
 145. At common law, a debt contracted 
 by a married woman during coverture, either 
 as surety for her husband or jointly with 
 him, is generally chargeable upon her sepa- 
 rate estate without proof of a positive inten- 
 tion to make it so: Cfreenough v. Wigging- 
 ton, 3G. Gr.,435. 
 
 146. Liability on other contracts: Under 
 statutes previously in force authorizing the 
 wife to bind her separate property by con- 
 tracts with reference thereto, or which pur- 
 ported to bind her only, held, that when the 
 fact of coverture was set up by the wife, it 
 constituted a complete defense until such 
 contract was shown as to render her Uable : 
 Bodemeyer v. Rodman, 5-436. 
 
 147. And that a personal judgment against 
 a maiTied woman could not be rendered 
 without an allegation that the debt was one 
 for which her separate property would be 
 liable : McOlauglilin v. CRourke, 12-459. 
 
 148. Under the same statutes, held, that a 
 contract by a married woman, made in the 
 operation of a farm, in purchasing a mower 
 for use thereon, was a contract binding upon 
 her : McCormick v. Holbrook, 33-487, 
 
 149. Also held, that where the wife owned 
 a farm and most of the stock thereon, a note 
 given by her for the purchase of a horse, 
 made by the husband in her presence and as 
 her agent and with her assent, the horse be- 
 ing intended for use on the farm, was bind- 
 ing: Mitchell V. Smith, 32-484. 
 
 150. Also held, that a married woman 
 might make a valid contract for the purchase 
 of real property, previous cases in Iowa upon 
 the power of a married woman to contract 
 being discussed : Shields v. Keys, 34r-398, 
 
 151. Under the present statutory prois- 
 ion (Code, § 3213), by which the wife is 
 clothed with the same property rights and 
 charged with the same Uabilities as the hus- 
 band, she is completely emancipated from 
 all tlie bonds recognized by the common law, 
 save those of affection and moral obligation. 
 Being clothed with all the natural rights en- 
 joyed by the husband, which she may exer- 
 cise free from his control, she is subject to 
 the same rules which restrict and control the 
 rights of the husband and enforce his obliga- 
 
HUSBAND AND WIFE, II. 
 
 875 
 
 Recovery by married woman for tort. 
 
 tions assumed by contract and imposed by 
 law for the protection of other members of 
 aooiety. As she has all the rights of the hus- 
 band, she must assume all his obligations as 
 well by implied as by express contract: 
 Spafford v. Warren, 47-47. 
 
 152. Ratiflcatiou: Therefore, held, that 
 the conveyance of a homestead in which the 
 wife joined with the husband, but which 
 was void as being an absolute deed instead of 
 a mortgage as contemplated when it was ex- 
 ecuted, and also for the reason that the name 
 of the grantee and the description of the 
 property were left blank at the time of the 
 execution and subsequently filled in by the 
 husband, was ratified by her subsequent ac- 
 tion in reference thereto and thus became 
 valid and binding upon her: Ibid. 
 
 153. Separation does not remove disabil- 
 ity of coverture: Where the power of a 
 married woman to contract is limited by the 
 law, the disability of coverture does not 
 cease to exist by reason of the fact that the 
 wife lives separately from the husband, within 
 the same jurisdiction and without divorce : 
 Painter V. Weatherford, 1 G. Gr., 97. 
 
 154. But under the common law an aban- 
 donment of the wife by the husband accom- 
 panied by renunciation of marital relations 
 and continued absence in a foreign state or 
 country, entitles the wife to sue without join- 
 ing with the husband: Smith v. Silence, 
 4-321. 
 
 155. A void marriage has no effect upon 
 the property rights of the parties: Carpen- 
 ter V. Smith, 24r-200. 
 
 156. Recovery for tort: The provisions 
 of the statutes with reference to rights of 
 married woman would seem to effect their 
 complete emancipation from the disabilities 
 of coverture to which they were subjected by 
 the common law with respect to the rights 
 of property, its freedom from control of the 
 husband or its liability for his debts and 
 the right to sue and be sued in respect 
 thereto. The right of action in favor of the 
 wife, whether arising upon contract or tort, 
 is hers in the same sense that it would be if 
 she were unmarried, and is to be prosecuted 
 in her own name without the joinder of her 
 husband. So held in case of an action for 
 malicious prosecution: Musselman v. Gal- 
 ligher, 33-383, 
 
 157. So held also in case of libel : Pancoast 
 V. Burnell, 33-394. 
 
 158. In a suit by the wife for personal in- 
 juries, it is not necessary that the husband 
 join with her as plaintiff : Tuttle v. Chicago, 
 R. I. & P. R. Co., 42-518. 
 
 159. When the wife has a separate and in- 
 dependent employment, which she habitu- 
 ally follows and for which she receives com- 
 pensation from her employers, she may be 
 deemed to have a business or occupation 
 independent of her husband, and may re- 
 cover in an action in her own name for loss 
 of time occasioned by personal injuries: 
 Fleming V. Shenandoah, 67-505. 
 
 160. However, the husband is still entitled 
 to the labor and assistance of the wife and 
 may recover in his own right for any injury 
 to her which deprives him thereof : Mewhir- 
 ter V. Hatten, 48-388. 
 
 161. He may recover for loss of time 
 caused by injury to her unless she is engaged 
 in the prosecution of a separate business, 
 which thereby suffers detriment ; and there- 
 fore in an action by a married woman, not 
 carrying on a separate business, to i-ecover 
 damages for personal injuries, loss of time 
 cannot be shown as an element of dam- 
 ages: Tuttle V. Chicago, R. I. & P. R. Co., 
 43-518; Nichols v. Dubuqiie & D. R. Co., 68- 
 738. 
 
 162. Instructions in an action by a, wife 
 against a railway company to recover dam- 
 ages for personal injuries, held to sufficiently 
 limit the recovery to such damages as were 
 strictly personal to the wife and for which 
 she might recover : Tuttle v. Chicago, R. I. 
 &P. R. Co., 48-336. 
 
 163. Damages resulting from the death of 
 the wife are damages to her estate and the 
 right of action therefor exists only^n favor 
 of her administrator, but for loss of services, 
 loss of society and expenses of treatment, the 
 husband may recover : Mowry v. Chany, 43- 
 609. 
 
 164. The damages accruing to the estate 
 of a married woman because of a wrongful 
 act which causes her death should not be as- 
 sessed on the same basis as though she wei-e 
 unmari-ied, even though she may have been 
 engaged to some extent in a separate busi- 
 ness. Damages should not be allowed in 
 such case for services which would have been 
 
876 
 
 INJUNCTIONS, I. 
 
 In what cases granted. 
 
 rendered for the benefit of her husband and 
 family : Stulmuller v. Cloughly, 58-738. 
 
 Further as to the right of the husband to 
 recover in case of injury to or death of the 
 wife, see supra, gg 21-25. 
 
 As to criminal liability of married 
 women, see Criminal Law, § 7. 
 
 Married wdmen as parties, see Paeties, 
 §§ 339-341. 
 
 ILLEGITIMATE CHILDREN. 
 
 See Parent and Child. 
 
 INFANT. 
 
 See Minors. 
 
 INJUNCTIONS. 
 
 I. In what cases granted. 
 II. Procedure. 
 
 a. In general. 
 
 b. Temporary injunction. 
 
 c. Dissolution of temporary injunction. 
 
 d. Bond; remedy upon. 
 
 e. Violation. 
 
 I. In what cases granted. 
 
 1. To restrain trespass; adequate rem- 
 edy at law : An injunction ought not to be 
 granted to restrain a mere trespasser, the 
 party injured in such cases having an ade- 
 quate remedy at law: Wilson v. Hughell, 
 Mor., 461. 
 
 2. Injunction will not be allowed against 
 a threatened trespass, where it does not ap- 
 pear but that plaintiff has a full, complete 
 and adequate remedy at law for any and all 
 trespasses which may be committed, and es- 
 pecially is this true where the statute offers 
 triple damages for any injuries inflicted by 
 such trespass and makes the same criminaJ : 
 Cowles V. Shaiv, 3-496. 
 
 3. Where, after judgment in plaintiff's 
 favor in an action for possession of real 
 property, in which plaintiff's right to the 
 property is fully adjudicated, and the issu- 
 ance and service of a writ of assistance, by 
 virtue of which defendanc is put out of pos- 
 session, he again takes possession of the 
 property, plaintiff may have an injunction 
 
 to prevent defendant from continuing to hold 
 possession in disobedience of the judgment 
 and process : Ten Eyck v. Sjoburg, 68-625. 
 
 4. Insolvency: To authorize the interfer- 
 ence of a court of equity by injunction to 
 prevent trespass upon real estate, there must 
 be some distinct ground of equitable juris- 
 diction, such as the insolvency of defendant, 
 the prevention of waste or irreparable in- 
 jury or a multiplicity of suits: Council 
 Bluffs V. Stewart, 51-385. 
 
 5. Where defendant in an action for tres- 
 pass which is being continued is insolvent, 
 an injunction to restrain the commission 
 thereof may be properly issued: Gibbs v. 
 McFadden, 39-371. 
 
 6. In the absence of a motion for more 
 specific statement, an allegation in the peti- 
 tion that defendant is proof against execu- 
 tion is sufScient without more specific 
 averment of the fact of insolvency: Bur- 
 roughs V. Saterlee, 67-396. 
 
 7. Irreparable injury: If the injury 
 threatened be irreparable, chancery will in- 
 terfere by injunction. Therefore, held, that 
 a petition which alleged that threatened 
 illegal acts of a road supervisor in throwing 
 down a fence to open a highway would 
 cause irreparable injury showed ground for 
 rehef in equity : Bolton v. McShane, 67-207. 
 
 8. A district township may have an in- 
 junction to restrain another district township 
 from removing a school-house from the terri- 
 tory of the formei'. It is not limited to an 
 action at law for the trespass : District T'p 
 V. District T'p, 54^115. 
 
 9. To restrain opening or obstructing 
 highway: Where a road supervisor has 
 served notice to have a road opened as an of- 
 ficial act by virtue of proceedings in which 
 it is claimed that a highway has been estab- 
 lished, the owner of property which would 
 be trespassed upon in opening the road may 
 maintain an action for injunction to restrain 
 the contemplated trespass before any actual 
 trespass upon his land is committed : Morgan 
 V. Miller, 59-481. 
 
 10. Equity will interfere by injunction to 
 restrain road supervisors and others from re- 
 moving or interfering with fences, hedges, 
 watei--courses and the like in the disdiarge of 
 their official duty. Relief in such cases is 
 not based upon tho ground of the iiTeparable 
 
INJUNCTIONS, I. 
 
 877 
 
 In what cases granted. 
 
 character of the injury and the insolvency 
 of defendant : Bolton v. McShane, 67-307. 
 
 11. An injunction will not lie to restrain 
 a party from obstructing or inclosing a street 
 or highway when it is in such condition that 
 it cannot be used for that purpose : Prince v. 
 McCoy, 40-533. 
 
 12. A party who wiU suffer no injury ex- 
 cept in common with the public by reason of 
 the obsti-uction of a highway will not be en- 
 titled to an injunction to restrain such ob- 
 struction: Ibid. 
 
 13. Obstraction of navigable stream: 
 Where the riparian owner shows that the 
 filling up of the banks of a navigable stream 
 beyond high-water mark will occasion him 
 special damages different in degree or kind 
 from such as will be sustained by the public, 
 he may maintain an injunction to prevent 
 such injiury : Muss^ v. JSershey, 42-356. 
 
 U. To prevent ejectment suits: The rule 
 of the common law, on account of which it 
 was held that an injunction might be granted 
 in equity to restrain the prosecution of ac- 
 tions of ejectment, when the title had been 
 properly determined between the parties, no 
 longer exists, and an injunction will not be 
 allowed for the purpose of restraining a sec- 
 ond suit to which a previous adjudication 
 might be pleaded as a bar : Chfay v. Coan, 36- 
 396. 
 
 15. A suit to enjoin the prosecution of an 
 action to recover real property on the ground 
 that a deed in defendant's chain of title has 
 been lost is allowed. In such case he has no 
 adequate remedy at law : Butch v. Lash, 4- 
 215. 
 
 Ifi. To restrain taking private property 
 for public use: An injunction will not be al- 
 lowed to restrain a party from committing 
 an injury by an attempt to take private prop- 
 erty under pretense of legal authority for a 
 highway, it not appearing that any authority 
 to do so actually exists, unless it appears that 
 such party is insolvent and unable to respond 
 to an action at law for damages, or that the 
 injury would be such that it could not be 
 adequately compensated in money : Dimvid- 
 diev.RobeHs, 1 G. Gr.. 363. 
 
 17. After the assessment of damages for 
 right of way of a railway has been made, the 
 land-owner may enjoin the further use of his 
 premises by the company until the damages 
 
 are paid: Richards v. Des Moines Valley R. 
 Co., -l8-25Q;Hibbsv. Chicago & 8. W. R. Co., 
 39-340. 
 
 18. Where one of the purposes for which 
 the condemnation proceedings were osten- 
 sibly had was within the provisions of the 
 statute, and the ground of complaint was that 
 defendant sought to defraud plaintiff by pro- 
 ceeding under the statute ostensibly for a 
 proper purpose, when the real and only pur- 
 pose was to procure land for a use for which 
 property could not be condemned, held, that 
 the proceedings might be enjoined : Forbes 
 V. Delashmutt, 68-164. 
 
 19. As the right of appeal is given in pro- 
 ceedings for condemning right of way, the 
 party to such proceedings cannot b}' injunc- 
 tion take advantage of irregularities therein. 
 The remedy by appeal is conclusive : Phillips 
 V. Watson, 68-28. 
 
 20. Vacation of streets; certiorari: In- 
 junction will not be granted to restrain the 
 vacation of streets by a city council, there 
 being a complete remed3' by certiorari: 
 Stubenrauch v. Neyenesch, 54-567. 
 
 21. To restrain enforcement of illegal 
 taxes : An injunction will lie to restrain the 
 sale of personal property levied on to satisfy 
 a tax illegally levied. Replevin would not 
 be a full remedy: Spencer v. Wheaton, 
 14-38. 
 
 22. Injunction is the proper remedy to 
 resti-ain the levy and collection of an illegal 
 tax on shares of stock in a national bank : 
 Olmstead v. Board of Supervisors, 34-33. 
 
 23. A resident and tax-payer of a school 
 district may maintain a suit to enjoin the 
 collection of a tax levied without authoi-ity 
 of law : Williams v. Peinny, 25-436. 
 
 24. The jurisdiction of equity to restrain 
 the enforcement of an illegal tax has been 
 too long recognized and too frequently re- 
 sorted to in this state to be now made a 
 matter of serious question : Zorger v. Town- 
 ship of Rapids, 36-175 ; Brandirff v. Harri- 
 son County, 50-164. 
 
 25. An injunction is not the proper remedy 
 against an erroneous or excessive assessment ; 
 the tax-payer should apply to the board of 
 equalization; but aliter, if the law authoriz- 
 ing the tax is unconstitutional, or the levy 
 is without authority or jui'isdiction : Macklot 
 V. Davenport, 17-379. 
 
878 
 
 INJUNCTIONS, I. 
 
 In what cases granted. 
 
 26. That a tax is merely irregular, for 
 instance, by reason of property which should 
 be included with the realty in an aggregate 
 valuation being separately assessed as per- 
 sonalty, is not a ground for enjoining the 
 collection of the tax. Such en-or should be 
 corrected by application to the board of 
 equalization : Wilson v. Cass County, 69-147. 
 
 2 7. In an action to enjoin the collection of 
 an illegal tax, a number of persons having 
 separate interests but equally interested in 
 the relief may join as plaintiffs: Brandirff 
 V. Harrison County, 50-164. 
 
 28. And in such case, one or more parties 
 thus interested may maintain an action for 
 the benefit of the others having a like inter- 
 est. (Overruling Fleming v. Mershon, 36- 
 413): Ihid. And see Palo Alto Banking, 
 etc., Co. V. Mahar, 65-74. 
 
 29. Residents and tax-payers of an inde- 
 pendent' district may join in an action to de- 
 clare taxes levied therein for school purposes 
 to be void : Wilkinson v. Van Oman, 70 . 
 
 30. Two or more owners of distinct pieces 
 of land cannot join in an action to restrain 
 the levy and enforcement of a municipal tax 
 upon their property on the ground that their 
 land is so situated as not to be subject to the 
 levy of such taxes : Lewis v. EsMeman, 57- 
 663. 
 
 31. Where a tax in aid of a railroad was 
 declared defeated by the judges of the elec- 
 tion, but the township clerk improperly cer- 
 tified in regular form to the board of super- 
 visors that the proposition was carried, and 
 the board thereupon levied the tax, held, 
 that as the tax was not voted, its collection 
 might be restrained by injunction, and certi- 
 orari was not an available remedy : Cattell 
 V. Ixywry, 45-478. 
 
 32. To restrain official action : A citizen 
 and tax-payer may maintain an action to en- 
 join the issuance by the county auditor of a 
 warrant in payment of a refund of taxes 
 illegally ordered by the board of supervisors. 
 The determination by the board of the legal- 
 ity of such a refunding is not an adjudica- 
 tion which must be attacked only upon ap- 
 peal or by certiorari: Hospers v. Wyatt, 63- 
 264. 
 
 33. Citizens and tax-payers of a county may 
 maintain an injunction against a county 
 official to prevent the erection of a county 
 
 court-house at an improper place: Rice v. 
 Smith, 9-570. 
 
 34. Where it appeared that the officers of a 
 school district were about to accept a school- 
 house which did not comply with the terms 
 of the contract for its construction and was 
 much less valuable than provided by such 
 contract, held, that an injunction might be 
 granted against such officers at the suit of 
 tax-payers to prevent the acceptance of such 
 building : Carthan v. Lang, 69-384. 
 
 35. A tax-payer cannot by injunction 
 restrain officers of the county in the per- 
 formance of their duties, even though irreg- 
 ular, where it does not appear that their 
 action is such as to be prejudicial to him : 
 Sperry v. Kretehner, 65-535. 
 
 36. A party seeking an injunction to re- 
 strain the execution of a tax deed upon prop- 
 erty must show that he has an interest in 
 such property entitling him to such relief : 
 Johnson v. Brett, 64^163. 
 
 37. A court of equity may interfere by in- 
 junction to prevent a conveyance by a mu- 
 nicipal corporation of lands held by it for 
 public purposes. Although such convey- 
 ance, being inconsistent with the purposes 
 for which it is held, might be void, yet it 
 may be enjoined to prevent the title from 
 passing into the hands of various grantees, 
 by reason of which parties seeking to restrain 
 the improper use of the land might be driven 
 to a multiplicity of suits: Cook v. Burling- 
 ton, 30-94. 
 
 38. An officer may be made a party to re- 
 strain him in the discharge of official duties, 
 where the discharge of his duties will be the 
 means of consummating or aiding fraudulent 
 purposes or of working oppression or injus- 
 tice, althoiigh the officer is guilty of no 
 wrong or unlawful purpose. But costs will 
 not ordinarily be adjudged against him: 
 Palo Alto Banking, etc., Co. v. Mahar, 65-74. 
 
 3!). So held in an action to which the 
 county recorder was made a party defend- 
 ant and in which it was sought to enjoin 
 him from recording certain conveyances 
 which it was alleged were being executed in 
 pursuance of a fraudulent confederation to 
 defraud plaintiff of his title: Ibid. 
 
 40. Legislative action of the state or of 
 a municipal corporation within the scope of 
 its powers cannot be restrained by injunction, 
 
INJUNCTIONS, I. 
 
 879 
 
 In what cases granted. 
 
 even though the threatened act, if passed, 
 would be unconstitutional and void: Des 
 Moines Gas Co. v. Des Moines, 44^505. 
 
 41. In regard to elections: A citizen of a 
 county is authorized, as plaintiff, to prosecute 
 an action for an injunction to restrain im- 
 proper action of officers when counting votes 
 on the question as to removing the county 
 seat: Collins v. Ripley, 8-139. 
 
 42. In an injunction proceeding the valid- 
 ity of an election to remove a county seat 
 may be tried: Sweattv. Faville, 23-331. 
 
 43. Where an election as to change of 
 county seat had been ordered by the board 
 of supervisors, made upon a petition and 
 notice therefor, and the vote was favorable 
 to the change, held, that those opposing such 
 change had no cause for equitable relief jus- 
 tifying an injunction, the order for the vote 
 being conclusive until set aside hy certiorari: 
 Bennett v. Hetherington, 41-143. 
 
 44. It is doubtful whether any court has 
 the power or jurisdiction to enjoin an elec- 
 tion to be held by the people pursuant to 
 public law ; Lamb v. Burlington, C. R. & M. 
 R. Co., 39-338. 
 
 45. Eight to public office: Action by 
 original bill for an injunction is not the 
 proper method for trying the right to a pub- 
 lic office or franchise. The remedy by infor- 
 mation in guo warranto should be adopted. 
 But it would seem that a temporary injunc- 
 tion might be granted as an auxiliary remedy 
 in such case : Cochran v. MoCleary, 23-75. 
 
 46. An action in equity for an injunction 
 is not the proper method to determine which 
 of two persons has the right to teach a school 
 and who is the legal sub-director in the dis- 
 trict township: District T'pv. Barrett, 47- 
 110. 
 
 47. To restrain proceedings at law: 
 Equity will not interfere by injunction to re- 
 strain the prosecution of an action at law 
 where it does not appear that plaintiff is in- 
 solvent or that there is any ground for a dis- 
 covery, or that the facts upon which relief is 
 sought cannot be made as fully available in 
 an action at law as in equity : Smith v. Short, 
 11-523. 
 
 48. It is not the province of equity to in- 
 terfere where there is a complete remedy at 
 law, and especially when it is sought to re- 
 strain an action at law pending a hearing in 
 
 equity: Central Iowa R. Co. v. Moulton & 
 A. R. Co., 57-249. 
 
 49. A court of equity will enjoin proceed- 
 ings in an action of forcible entry and de- 
 tainer only where a certain and manifest 
 irreparable injury will result unless its re- 
 straining power is exerted: Crawford v. 
 Paine, 19-173. 
 
 50. Where parties are both residents of the 
 state, the one may invoke the aid of a court 
 of equity of the state to prevent the other 
 from prosecuting an action in the courts of 
 another state, which will result in injujy 
 and fraud. Such jurisdiction is founded 
 upon authority vested in courts of equity 
 over persons within their jurisdiction and 
 amenable to process, to restrain them from 
 doing acts which will work wrong and in- 
 jury to others, and which are contrary to 
 equity and good conscience : Teager v. Landa- 
 leij, 69-735 ; Hager v. Adams, 70 . 
 
 51. Therefore, held, that a debtor resident 
 of this state might maintain an action of in- 
 junction against his creditor, also a resident, 
 to restrain him from procuring a judgment 
 to be recovered in another state under which 
 the indebtedness due to the debtor in this 
 state, and here exempt from execution, should 
 be seized and applied to the satisfaction of 
 the creditor's claim, and that in the event of 
 the creditor pi'osecuting the foreign action to 
 judgment and recovering the amount of the 
 exempt indebtedness, a judgment might be 
 rendered against him for damages in that 
 amount: Ihid. 
 
 52. Where plaintiff was under contract 
 entitled to a conveyance of a right of way, 
 held, that it was proper in an action for specific 
 performance thereof to ask an injunction to 
 restrain defendant from proceedings to have 
 damages for the right of way assessed by a 
 jury : Chicago- & S. W. R. Co. v. Swinney, 
 38-183. 
 
 53. Where an injunction has been granted 
 restraining plaintiff in an action pending in 
 the same court from dismissing such action, 
 the- supreme court will not, on appeal in the 
 latter action, allow the parties to dismiss the 
 case in violation of such injunction: Du- 
 buque Branch of State Bank v. Rhomberg, 
 37-664. 
 
 54. To restrain enforcement of judg- 
 ment : A court of equity has authority to en- 
 
880 
 
 INJUNCTIONS, I. 
 
 In what cases granted. 
 
 join proceedings to enforce a judgment which 
 is void for want of jurisdiction : Connell v. 
 Stelson, 33-147. 
 
 55. Injunction may be granted to restrain 
 enforcement of a judgment at law rendered 
 without notice to the defendant therein, and 
 upon a claim against which he had a good 
 defense : Givens v. Campbell, 20-79. 
 
 66. A party seeking to enjoin the enforce- 
 ment of a judgment at law must show that 
 he has a defense to the action or make such 
 a case as to satisfy the court that if a new 
 trial is had a different result will be obtained : 
 Way V. Lamb, 15-79. 
 
 57. The enforcement of a judgment at 
 law will not be restrained by injunction 
 where it is not shown that the judgment is 
 unjust or oppressive, or in other words that 
 there would be a good defense to the claim 
 if the judgment should be set aside. A court 
 of equity will not set aside a -judgment and 
 open up the litigation until it appears that 
 the result will be other or different from 
 that already reached : Taggart v. Wood, 20- 
 336. 
 
 58. A court of equity will not interfere by 
 injunction to restrain the enforcement of a 
 judgment on a ground which might have 
 been urged as a matter of defense in the 
 action on which the judgment was recovered : 
 Faulkner V. Campbell, Mor., 148. 
 
 59. To authorize a party to relief against a 
 judgment at law, and to stay an execution 
 thereon, it must appear that it is against con- 
 science to execute such judgment, and also 
 that the injured party could not have availed 
 himself of the same facts at or before the 
 trial, and that there was no fault or negli- 
 gence on his part: Kriechbaum v. Bridges, 
 1-14: Shriekerv. Meld, 9-366. 
 
 CO. Matters antecedent to the bringing of 
 the action in which the judgment was re- 
 covered which is sought to be enjoined, 
 which matters might have been interposed 
 as a defense in such action, cannot be made 
 the basis of a suit in equity to enjoin the judg- 
 ment: Lamb v. Dreto, 20-15. 
 
 61. In a motion to enjoin the enforcement 
 of a judgment, the court cannot go behind 
 the judgment to determine the regularity of 
 the proceedings: Hampson v. Weare, 4-13. 
 
 62. In the absence of fraud, accident or 
 mistake, equity cannot interfere to restrain 
 
 the enforcement of a judgment at law, al- 
 though it be wrong, unjust, or inequitable: 
 Finch V. Bollinger, 47-173. 
 
 63. Equity will not enjoin the collection of 
 a judgment at law where the legal remedy 
 is fuU, ample and complete, unless possibly 
 there has been fraud, accident or surprise, 
 without fault or negligence on the part of 
 the complaining party : Freeman v. Hart, 61- 
 535. 
 
 64-. Held, that a judgment defendant could 
 not have the enforcement of the judgment 
 enjoined on the ground that he had a claim 
 against the assignee of the judgment who 
 was his attorney in the action in which the 
 judgment was recovered, for negligence in 
 defending such action, it not appearing that 
 the attorney was insolvent. Under such 
 circumstances there is no such relation of 
 trust or confidence as to entitle the judg- 
 ment debtor to relief : Baker v. Ryan, 67-708. 
 
 65. "Where the provisions of a judgment 
 were that it should be paid in a town order 
 at the expiration of a certain time, and be- 
 fore that time execution was issued and, 
 when the time expired, the order was not 
 tendered, and afterwards, without any offer 
 to perform, an injunction was asked against 
 such execution, held, that plaintiff was not 
 entitled to relief by reason of his failure to 
 tender the order : Anamosa v. Wurzbacher, 
 37-25. 
 
 66. "Where a judgment was rendered by 
 default upon agreement that it should be sat- 
 isfied only out of certain specified property, 
 held, that an injunction was properly granted 
 in an action by the debtor to restrain its en- 
 forcement against other property than that 
 agreed upon : Montgomery v. Cfibbs, 40-652. 
 
 67. By the English chancery rule, service 
 in an action to enjoin the collection of a 
 judgment might be made upon the attorney 
 of a party who recovered the judgment, 
 where the party himself was a non-resident, 
 but under our procedure this course is not 
 proper. An action to enjoin should be 
 brought against the ofiS.cer who is proceeding 
 to enforce the judgment : Death v. Bank of 
 Pittsburg, 1-383. 
 
 Further as to equitable relief against judg- 
 ments, see Equity, II, c. 
 
 68. To restrain sale on execution: In- 
 junction will be granted to prevent the sale 
 
INJUNCTIONS, I. 
 
 881 
 
 In what cases granted. 
 
 on execution of real property, when such 
 property does not belong to the judgment 
 debtor and the sale would oast a cloud upon 
 the title : Key City Oas Light Co. v. Munsell, 
 19-305. 
 
 69. But a sale will not be enjoined if the 
 judgment is a lien upon the property, al- 
 though it is junior to other liens : Wiedner 
 V. Thompson, 66-283. 
 
 70. Place of bringing action to enjoin 
 civil proceedings, or the enforcement of a 
 jndjment or execution: Where it is sought 
 to restrain the sale of property on execution 
 under a judgment, on the ground that the 
 judgment is void, it is required by statute 
 (Code, § 3396) that the suit be brought in the 
 county and court where the judgment was 
 obtained: Anderson v. Hall, 48-346; Bennett 
 V. Sanchett, 49-71; Grattan v. Matteson, 
 51-632. 
 
 71. This provision is applicable in case of 
 special as well as of general execution : Loch- 
 wood V. Kitteringham, 42-257. 
 
 72. It seems, however, that it would not 
 apply where it should be sought to enjoin 
 the sale of property not belonging to defend- 
 ant in execution, but belonging to a third 
 person who seeks the injunction: Ibid. 
 
 73. Where the object of the action is to 
 declare a judgment or final order of a court 
 invalid, action must be brought in the court 
 ■where the judgment or order was obtained ; 
 but where it is sought to enjoin the enforce- 
 ment of a judgment because of some matter 
 which has arisen since the judgment was ren- 
 dered, and not on the gi-ound that it should 
 never have been entered, or that it is invalid, 
 or that it should not be enforced, the action 
 need not be brought in the court where the 
 judgment was recovered, but may be brought 
 in the county of defendant's residence : Baker 
 V. Eyan, 67-708. 
 
 74. An action to set aside a sheriff's sale 
 ■and deed on the ground that the property was 
 exempt as a homestead may be brought in a 
 different court from that in whioli the judg- 
 ment was rendered: Visekv. Doolittle, 69-602. 
 
 75. When a transcript of a judgment be- 
 fore a justice of the peace is filed in the office 
 of the clerk of the circuit court, it becomes a 
 judgment of that court, and a suit to enjoin 
 proceedings thereon must be brought in that 
 coui-t: Anderson v. Hall, 48-346 
 
 Vol. 1 — 56 
 
 76. If the action is brought in the wrong 
 county, the court acquires no jurisdiction 
 even by consent, and the action cannot be 
 removed to the proper county : Ibid. 
 
 77. Where an execution issuing from the 
 supreme court is sought to be enjoined, the 
 action may properly be brought in the court 
 of any county where it is sought to enforce 
 such execution: Davis v. Bonar, 15-171; 
 Massie v. Mann, 17-131. 
 
 78. An injunction relating to property held 
 under attachment, where the attachment is 
 the gist of the proceeding, must be brought 
 in the same court where the attachment suit 
 is pending: Cooney v. Moroney, 45-292. 
 
 79. To restrain enforcement of chattel 
 mortgage: As the purchaser at foreclosure 
 sale can acquire title only to such property 
 as is covered by the mortgage, an action can- 
 not be maintained by a junior mortgagee to 
 restrain the foreclosure of a senior mortgage 
 upon property which, it is claimed, is not 
 covered by such senior mortgage : Banlcin v. 
 Rankin, 67-322. 
 
 And see Chattel Mortgages, §§ 155-157. 
 
 80. To enjoin a nnisance: An action in 
 equity to enjoin the continuance of a nui- 
 sance may be prosecuted as before the adop- 
 tion of the Code pi'ovision, found in § 3331, 
 authorizing such relief in an action at law 
 for damages. Different property owners, 
 suffering damages distinct from the public, 
 may join as plaintiffs in such action : Bush- 
 nell V. Robeson, 62-540. 
 
 81. In such cases the equitable remedy 
 still exists, and may be prosecuted in a proper 
 action, and it is error to order the transfer of 
 such an action to the law docket: Gribben v. 
 Hansen, 69-255. 
 
 82. The statutory provision as to restrain- 
 ing nuisances is not to be limited to cases 
 where a nuisance is about to be located. 
 Courts of equity before the adoption of the 
 Code granted relief as certainly and readily 
 where a nuisance had been located as where 
 it was about to be, and this equitable remedy 
 still exists : Bushnell v. Robeson, 62-540. 
 
 83. Courts of equity have general jurisdic- 
 tion to entei'tain an action to abate a nuisance, 
 and, although such jurisdiction has generally 
 been exercised only in actions where prop- 
 erty rights of the plaintiff are affected, yet 
 it is competent for the legislature to extend 
 
882 
 
 INJUNCTIONS, I. 
 
 In what cases granted. 
 
 this jurisdiction to cases where no property 
 rights of the plaintiff as distinct from the 
 > general public are involved, and to authorize 
 a suit to abate a nuisance to be brought by 
 any citizen of the county : Littleton v. Fritz, 
 65-488. 
 
 84. So heldundev Code, § 1543, as amended 
 by 20 G. A., ch. 143, relating to a suit in 
 equity by a citizen of the county to enjoin 
 the unlawful sale of intoxicating liquors: 
 Ibid. 
 
 85. The fact that the act enjoined is one 
 which is by statute made a criminal one 
 will not prevent a court of equity having 
 jurisdiction to abate it by injunction : Ibid. 
 
 81). Where it was sought to enjoin the re- 
 building of a livery-stable on the ground that 
 it would be a nuisance, held, that it appear- 
 ing that the stable, as originally kept, was a 
 nuisance by reason of the location and con- 
 struction of the building and mode of using 
 it, rather than negligence in the manner of 
 keeping it, an injunction would be granted 
 against any use of the premises substantially 
 like the use theretofore made thereof, but 
 that it would not be proper to absolutely en- 
 join the use of such premises for that pur- 
 pose : Sliiras v. Olinger, 50-571. 
 
 87. Where the objection to the premises 
 arises from some cause which could not be 
 obviated by reason of any mode or use which 
 could be adopted, the entire use of the prem- 
 ises for the purpose may be enjoined: Baker 
 V. Bohannan, 69-60. 
 
 88. To restrain conveyances, attacli- 
 Bients, etc.: Where real property standing 
 in the name of a person not a defendant is 
 attached, as having been conveyed by de- 
 fendant to defraud creditors, an action for 
 an injunction may be maintained against the 
 grantee in such fraudulent conveyance to 
 prevent alienation of the property by him to 
 an innocent purchaser, until the determina- 
 tion of the attachment suit : Joseph v. McCfill, 
 52-127. 
 
 89. A creditor who has not yet recovered 
 a judgment cannot have an injunction to 
 restrain the debtor from disposing of his 
 property: Buchanan v. Marsh, 17-494. 
 
 9;i. A mortgagee, although he has not re- 
 covered judgment, may maintain an action 
 for injunction to prevent a judicial sale of 
 the mortgaged premises on the ground that 
 
 it is fraudulently intended to defeat his 
 rights, but a general creditor not yet having 
 recovered judgment could not do so : Brig- 
 ham V. White, 44-677. 
 
 As to who may have a Fraudulent Con- 
 veyance set aside, see that title, II. 
 
 91. One who has conveyed property by a 
 waiTanty deed has no such interest therein 
 that he can maintain injunction against the 
 thi-eatened sale thereof under a subsequent 
 judgment, under which it is sought to sub- 
 ject the property on the gi-ound that the con- 
 veyance was in fraud of creditors: Small v. 
 Somerville, 58-863. 
 
 92. The grantee may, under proper cir- 
 cumstances, maintain an action for injunc- 
 tion to restrain his grantor and others from 
 prosecuting a fraudulent confederation to 
 convey the property so as to defeat his title : 
 Palo Alto Banking, etc., Co. v. Mahar, 65-74. 
 
 93. In an injunction to restrain a sale by 
 the trustee under a mortgage containing a 
 power of attorney, where it did not appear 
 that there was fraud or mistake, or that 
 plaintiff would sustain an irreparable injury 
 by such sale, and it was shown that plaintiff 
 was aware of the condition of the title of 
 which he complained at the time of taking 
 the conveyance in part payment for which 
 the mortgage was given, lield, that there was 
 no ground for an injunction : Croaker v. Rob- 
 ertson, 8-404. 
 
 94. Equity may, at the suit of the grantee 
 of real property by a warranty deed, restrain 
 the transfer of notes given for the purchase 
 money where it appears that there was a 
 breach of warranty as to a portion of the 
 property. But such restraint will extend 
 only to such amount as is necessary to make 
 good to the grantee the damage resulting 
 from the breach of warranty: McDunn v. 
 Des Moines, 34-467. 
 
 95. Where property claimed by plaintiff 
 was seized on attachment issued against a 
 thu-d person, and was replevied from the of- 
 ficer by plaintiff and taken into possession of 
 plaintiff, held, that he could not have an in- 
 junction to restrain the levy of other attach- 
 ments by other parties against such third 
 person upon the same property : Patterson v. 
 Seaton, 64-115. 
 
 96. To restrain payment of conuty war- 
 rant: An injunction restraining payment of 
 
INJUNCTIONS, I, II, a. 
 
 883 
 
 In what cases granted. — Proceedings in general. 
 
 a county warrant cannot operate to defeat a 
 recovery upon such warrant negotiated he- 
 fore the injunction suit was commenced: 
 MeCormick v. Orundy County, 24-883. 
 
 97. To restrain sal6 of partnership prop- 
 erly: Where plaintiff as administratrix of a 
 deceased partner showed in her petition that 
 the defendants, the copartners of her intes- 
 tate, were insolvent and were disposing of the 
 firm property aud appropriating it to their 
 own use, and that unless defendants were re- 
 strained hy injunction there was danger of 
 the property and assets of the firm being 
 wholly lost, held, that there was a proper case 
 for an injunction restraining defendants from 
 disposing of the partnership property: 
 Fletcher v. Vandusen, 53-448. 
 
 98. In actions by ordinary proceeding's: 
 Under a statutory provision (Code, § 3386) 
 authorizing injunctions as an independent 
 remedy in ordinary proceedings for breach of 
 contract or other injury, to prevent the rep- 
 etition or continuance of such breach or in- 
 jury, hM, that where an injunction was 
 asked in an action at law as thus contem- 
 plated, it was not necessary for a party to 
 bring himself within the rules and usages of 
 a court of equity in granting such relief: 
 Sail V. Grouse, 14r-487. 
 
 99. To entitle plaintiff to an injunction 
 under such statutory provision, he need not 
 allege that he will sustain an irreparable 
 injury \i the injunction is not granted, or 
 that defendant is insolvent: MUls v. Samil- 
 tm, 49-105. 
 
 100. The fact that the action is improperly 
 brought in equity, when it should have been 
 brought at law, will not prevent relief being 
 had under such provisions : Ibid. 
 
 101. A petition for injunction in ordinary 
 proceedings must show a continuance or rep- 
 etition of the injury : Berger v. Armstrong, 
 41-447. 
 
 102. The injunction may be granted before 
 the determination of the case in which it is 
 asked, the other party of course being heard : 
 Ewell V. Oreenwood, 26-377. 
 
 103. Where defendant had sold to plaintiff 
 the good- will of a business, and obligated him- 
 self under a penalty not to prosecute the 
 same business in the same place for a limited 
 time, hdd, that the only remedy for a breach 
 of the agreement not to prosecute the busi- 
 
 ness was an action for the penalty, and that 
 an injunction could not be had under the 
 statutory provision last above referred to, to 
 restrain defendant from violating his con- 
 tract: Stafford v. Shortreed, 03-524. 
 
 104. Such statutory provision does not con- 
 fer upon a court of law in such proceedings 
 either general or special chancery powers, 
 nor clothe it with power to grant any other 
 relief or remedy not before possessed, ex- 
 cept that of an injunction: Richmond v. 
 Dubuque & S. C. R. Co., 33-433, 475. 
 
 II. Peoceedings. 
 
 a. In general. 
 
 105. Jurisdiction : The authority to allow 
 an injunction is an incident of chancery 
 jurisdiction and can only be exercised by 
 courts clothed with general chancery powers 
 or by virtue of legislative enactment : CuTn- 
 mings v. Des Moines, W. & S. W. R. Co., 
 36-173. 
 
 106. Parlies: Where it was sought to en- 
 join a city from having an improvement 
 made under an illegal ordinance, held, that 
 the contractor who had entered into a con- 
 tract with the city to make such improve- 
 ments was a proper party defendant, but that 
 having made no resistance to the injunction 
 and raised no issue with plaintiff, costs 
 should not be taxed to him : Bush v. Du- 
 buque, 69-233. 
 
 That parties without interest are not en- 
 tilled to relief, see supra, § 13. 
 
 As to who may have an injunction to 
 restrain fraudulent conveyances, see supra, 
 %% 88-90. 
 
 That tax-payers may join as parties, when 
 jointly interested, or one or more may sue 
 for aU, see supra, g§ 27-30. 
 
 As to place of bringing action to restrain 
 civil proceedings or the enforcement of a 
 judgment, see supra, g§ 70-78. 
 
 107. Petition: To entitle a party to an 
 injunction he must allege the facts upon 
 which his right thereto rests: Berger v. Arm- 
 strong, 41-447. 
 
 108. Tender: A party seeking to enjoin 
 the sale of property under a mortgage lien, if 
 he admits a portion of the money to be due, 
 should pay or tender the amount due before 
 
884 
 
 INJUNCTIONS, II, a, b. 
 
 Proceedings in general. — Temporary. 
 
 he will be entitled to an injunction: Sloan v. 
 Coolbaugh, 10-31. 
 
 109. An injunction should not be granted 
 to stay the sale of real estate under a trust 
 deed, where it is admitted that a portion of 
 the indebtedness is due, if a tender of the 
 amount thus admitted is not shown : String- 
 ham V. Brown, 7-33 ; Casady v. Bosler, 11- 
 342. 
 
 110. Veriflcatioii : An affidavit to the 
 petition to the effect that the contents thereof 
 are true, as the affiant believes, constitutes a 
 sufficient verification : Kelley v. Briggs, 58- 
 833. 
 
 111. Amendment: If an amended plead- 
 ing in an action for injunction is not sworn 
 to, the temporary injunction may be dissolved 
 on that ground, but it wiUbe error to dismiss 
 the action and proceed to personal judg- 
 ment: Porter v. Moffett, Mor., 108; S. C, 
 Mor., 153. 
 
 112. Although an injunction be improperly 
 issued on account of defects in the petition, 
 yet if these effects are corrected by amend- 
 ment the injunction should not be dissolved : 
 Sweatt V. Faville, 23-321 ; Des Moines Nav. 
 <fc B. Co. V. Carpenter, 27-487. 
 
 113. And this is true, even though the 
 amendment is made after the motion to dis- 
 solve is filed : Crawford v. Paine, 19-172. 
 
 114. The proceedings are commenced 
 upon the filing of the petition and service of 
 writ, and if these are within the period of the 
 limitation, it is sufficient, although the no- 
 tice is not served until the period of limita- 
 tion has expired: Sweatt v. Faville, 23-321, 
 328. 
 
 115. Giving of damages not incident to 
 the relief: Where a paity sought to enjoin 
 the opening of a highway on the ground that 
 he had not been given due notice thereof, 
 held, that he could not, in such action, re- 
 cover damages for failure to give such notice : 
 Tharp v. Witham, 65-566. 
 
 b. Temporary injunction. 
 
 116. When allowed: A temporary injunc- 
 tion will not be issued where the facts stated 
 in the petition, if proved, would not entitle 
 the party to relief: Zorger v. Township of 
 Bapids, 36-175. 
 
 117. In ^ suit brought under Code, § 154B, 
 
 as amended by 20 G. A., ch. 143, to enjoin 
 illegal sale of intoxicating liquors, a tempo- 
 rary injunction may be granted as in any 
 other case : Littleton v. Fritz, 65-488. 
 
 118. The statutory provision (Code, § -3394) 
 that the order for a temporary injunction 
 shaU be indorsed upon the petition is not 
 mandatory, and the fact that it is made upon 
 a separate piece of paper will not render sub- 
 sequent proceedings thereunder void: Jor- 
 dan V. Circuit Court, 69-177. 
 
 119. Code, g 3391, providing that an in- 
 junction to stop the general and ordinary 
 business of a municipal corporation shall 
 only be granted after reasonable notice, hM 
 not applicable where one district township 
 sought to restrain another from removing 
 school-houses from the ten-itory of the 
 former: District T'p. v. District T'p, 54- 
 115. 
 
 120. A temporary injunction issued in 
 vacation is not dissolved by failure to pro- 
 cure an additional order therefor at the next 
 term of court : Curtis v. Crane, 38-459. 
 
 121. Under the statutory provisi6ns (Code, 
 g§ 3389, 3394) by which a judge may grant a 
 temporary injunction in vacation, lield, that 
 the judge might act during term time, but 
 while the court was not actually in session, 
 as weU as in vacation between terms : Tliomp- 
 son V. Benepe, 67-79. 
 
 122. Although the granting as well as the 
 refusal of a temporary injunction rests much 
 in the discretion of the com-t, and such dis- 
 cretion will not be controlled except where 
 there is a inanifest abuse or mistake of the 
 law, yet where an appeal was taken from an 
 order granting a preliminary injunction in- 
 volving a simple question of law upon 
 undisputed facts, held, that the question 
 would be determined on appeal and not post- 
 poned to final hearing: Fiison v.. Connecticut 
 General L. Ins. Co., 53-609. 
 
 123. A party cannot, by appealing from an 
 order denying a temporary injunction and 
 executing a supersedeas bond, have the bene- 
 fit of such temporary injunction : Troupe v. 
 Fade, 43-553. 
 
 124. Affidavits in resistance of an applica- 
 tion for a temporary injunction are merely 
 evidence which do not become a part of the 
 record, unless preserved by bill of exceptions: 
 Hart V. Foley, 67-407. 
 
INJUNCTIONS, II, c. 
 
 885^ 
 
 Dissolution of temporary. 
 
 0. Dissolution of temporary injunc- 
 tion. 
 
 125. When grounds denied in answer: 
 
 Wliere the facts alleged in the petition as a 
 ground for the injunction are plainly, di- 
 rectly and fully denied by the answer, the 
 injunction may be dissolved upon the answer 
 alone: Shricker v. Field, 9-366; Anderson 
 V. Reed, 11-177; Stevens v. Myers, 11-183; 
 Taylor v. Dickinson, 15-488; Des Moines 
 Nav. & R. Co. V. Carpenter, 27-487; Ingra- 
 fiam V. Chicago, D. & M. R. Co., 34-349 ; Rus- 
 sdl V. Wilson, 37-377. 
 
 126. In a particular case, held, that the 
 equities of the petition were suflSciently de- 
 nied in the answer to warrant a dissolution : 
 Carrothers v. Newion Mineral Spring Co., 61- 
 681. 
 
 127. Where defendant bases his motion to 
 dissolve the temporary injunction on his an- 
 swer alone, the plaintiflE may resist the dis- 
 solution by affidavits in support of his peti- 
 tion although no affidavits are oflfered by 
 defendant: Palo Alto Banking, etc., Co. v. 
 Mahar, 65-74. 
 
 128. An answer which does not fully meet 
 the equities set up in the petition will not 
 justify the dissolution of a temporary in- 
 junction, although it may be sufficient to 
 support a judgment for defendant on the 
 final trial: Trotter v. Paunley, 39-203. 
 
 129. Where one material allegation of a 
 petition for injunction to restrain the collec- 
 tion of a judgment was not denied by the 
 answer, held, that the temporary injunction 
 should not have been dissolved, but should 
 have been continued to the final hearing: 
 Gates V. Ballou, 54-485. 
 
 130. Where plaintiff sought to enjoin the 
 enforcement of a judgment, alleging that 
 large payments had been made thereon 
 which had not been credited, and that fact 
 was not denied in the answer, held, that the 
 temporary injunction should have been dis- 
 solved only as to that part of the injunction 
 not alleged to have been paid, and as to the 
 other part it should have been continued to 
 the hearing: Marsh v. Mead, 57-535. 
 
 131. TowaiTantthe dissolution upon an- 
 . swer alone, the answer must be upon per- 
 sonal knowledge, and of such character as to 
 entitle it to as much credit as the averments 
 
 of the bill. If its statements ai-e such as to 
 leave the mind of the court in reasonable 
 doubt as to whether the equities are suffi- 
 ciently answered, the injunction ought not 
 to be dissolved: Sinnett v. Moles, 38-25; 
 Fargo v. Ames, 45-494. 
 
 132. Even where all the equities of the bill 
 are denied by the answer, it does not follow 
 as a matter of course that the injunction will 
 be dissolved. Its dissolution or continuance 
 rests very much in the sound discretion of 
 the court to be governed by the nature of 
 the case : Shricker v. Field, 9-336. 
 
 133. An injunction should not be dissolved 
 without ijroof, on an answer which admits 
 the allegations of the petition and seeks to 
 avoid their effect by pleading affirmative 
 matter : Ibid. ; Judd v. Hatch, 31-491 ; Fargo 
 V. Ames, 45-494; Mills v. Hamilton, 49-105; 
 Huskins v. McElroy, 62-508 ; Hayes v. Bil- 
 lings, 69-387. 
 
 131. Upon the hearing of a motion to dis- 
 solve an injunction, the plaintiff may file an 
 amended petition, and if it states a good 
 cause for an injunction, not overborne by 
 the adverse showing, the injunction should 
 be continued : Crawford v. Paine, 19-172. 
 
 135. Where the final relief sought will be 
 ineffectual, if the temporary injunction is 
 dissolved, it will be continued to the final 
 hearing, even though the equities of the bill 
 are fully denied in the answer: Joseph v. 
 McGill, 52-127. 
 
 136. Where fraud is the gi'avamen of a 
 petition, or it is apparent that by dissolution 
 a party will lose all benefit to accrue from 
 final success, the court may refuse to dis- 
 solve the injunction until final hearing: 
 Sinnett v. Moles, 38-25 ; Stewart v. Johnston, 
 44-435 ; Brigham v. White, 44-677 ; Fargo v. 
 Ames, 45-494; Johnston v. Chicago, M. & 
 St. P. R. Co., 58-537. 
 
 137. The general rule is, that where all the 
 material allegations of the petition for an in- 
 junction are fully and satisfactorily denied in 
 the answer, upon the personal knowledge of 
 the defendant, the preliminary injunction, if 
 one has been allowed, will be dissolved. There 
 are some exceptions to this rule, and one of 
 them is where the gravamen of the petition 
 is fraud : Walker v. Stone, 70 . 
 
 138. The ruling of the court continuing a 
 preliminary injunction to the liearing is 
 
886 
 
 INJUNCTIONS, II, c, d. 
 
 Dissolution of temporary. — Bond ; remedy upon. 
 
 largely a matter of discretion, and not to be 
 reversed unless such discretion has been 
 abused: Ibid. 
 
 139. Where there was no showing that the 
 continuance of the injunction to the hearing 
 would result in any substantial injury to de- 
 fendant, and it appeared that the dissolution 
 ftiight materially injure plaintiff, held, that 
 a refusal of the court to dissolve the injunc- 
 tion would not be reversed on appeal : Kelley 
 V. Briggs, 58-333, 
 
 140. An injunction restraining the taking 
 of private property for public use until com- 
 pensation is made should not be dissolved 
 while the question as to the right to compen- 
 sation is pending and undetermined : Trustees 
 of Iowa College v. Davenport, 7-213 ; Conolly 
 V. Griswold, 7-416. 
 
 141. It being provided by statute that an 
 injunction to restrain a nuisance can only be 
 granted upon reasonable notice of the time 
 and place of application, to the party to be 
 enjoined, held, that an injunction for that 
 purpose, having been granted without notice, 
 should be set aside on motion, and that an 
 appearance to move to dissolve, accompanied 
 by answer to the petition in the case, was not 
 a waiver of the right to have such dissolu- 
 tion: Hughes r. JEckerson, 55-641. 
 
 142. While an injunction should not be 
 dissolved until after answer by defendant, 
 this rule has no application where the party 
 failing to answer is a merely nominal party : 
 Shricker, v. Field, 9-366. 
 
 143. Where it appeared that there had 
 been no unreasonable delay in the service of 
 the notice after the granting of the writ, 
 held, that a motion to dissolve for want of 
 notice was properly overruled, when made 
 after service; also, that appearance waived 
 any objection to the form or sufficiency of 
 such notice : Sweatt v. Faville, 23-321. 
 
 ' As to curing defects by amendment and 
 thus preventing dissolution, see supra, g§ 111, 
 113, 134. 
 
 144. An injunction cannot be dissolved on 
 the ground that the service of the writ pre- 
 cedes the acquisition of jurisdiction of the 
 person by appearance when the original notice 
 is defective : District T'p v. District Tp, 54r- 
 115. 
 
 145. Wliere the writ of temporary injunc- 
 tion is broader than the petition, the remedy 
 
 is not by motion for dissolution, but for 
 modification of the writ: Ford v. Loomis, 
 63-586. 
 
 146. Upon motion to dissolve, the opposite 
 party is not entitled as a matter of course to 
 a continuance : Taylor v. Dickinson, 15-483. 
 
 147. The renewal of a motion already filed 
 in another court to dissolve the injunction is 
 not a second motion within the prohibition 
 of the statute : Carrothers v. Newton Mineral 
 SpHngCo., 61-681. 
 
 148. It may be that, upon a dissolution, 
 damages which ai-e the immediate and neces- 
 sary result of the allowance of the writ, and 
 which depend simply upon computation for 
 their determination, may be recovered by a 
 summary proceeding; but damages conse- 
 quential in their nature, as expenses, attor- 
 ney's fees, etc. , can only be recovered in an 
 independent action: Taylor v. Brownfleld, 
 41-264. 
 
 Further as to recovery of damages, see 
 infra, g§ 156-167. 
 
 149. Sustaining a motion to dissolve a 
 temporary injunction which has been granted 
 ex parte upon a showing then made does not 
 bar the right to a perpetual injunction upon 
 full proof at the final hearing: Fisher v. 
 Beard, 40-625. 
 
 150. The dissolution of the injunction does 
 not necessarily operate to 'dismiss the bill: 
 Russell V. Wilson, 87-377; Massie v. Mann, 
 17-131 ; Walters v. Fredericks, 11-181. 
 
 151. While the continuance or dissolution 
 of an injunction rests in the sound discretion 
 of the court originally passing upon the 
 question, yet this is a legal discretion, and if 
 based upon sufficient grounds will be re- 
 versed on appeal: Sinnett v. Moles, 88-25; 
 Stewart v. Johnston, 44r435. 
 
 152. Appeal from order of dissolntion; 
 After the dissolution of a temporary injunc- 
 tion it cannot be restored on appeal, although 
 another might be granted if the case has not 
 proceeded to a hearing, and if the granting 
 of another such injunction would be of any 
 use : Ellwood Mfg. Co. v. Eankin, 70 . 
 
 d. Bond; remedy upon. 
 
 163. Where the action is to enjoin the sale 
 of a particular piece of property under a 
 judgment, the bond need not be for twice 
 
INJUNCTIONS, II, d. 
 
 887 
 
 Bond ; remedy upon. 
 
 the amount of the judgment as required by 
 Code, §§ 3396, 3397 : Hardin v. White, 63-633. 
 
 154. Under previous statutory provisions 
 differing from the section just referred to, 
 held, that an action for an injunction to re- 
 strain the collection of a judgment was not 
 a suit to enjoin proceedings in a civil action 
 within the meaning of such statute, and the 
 bond required need not be conditioned to 
 pay the judgment finally to be recovered: 
 Way V. Lamb, 15-79. 
 
 155. Under statute, as well as by rules of 
 equity practice, it is conapetent for the court, 
 in case the litigation wherein the injunction 
 has been granted shall be protracted, to re- 
 quire an additional bond or further security 
 to meet such contingency: Crawford v. 
 Paine, 19-172. 
 
 156. Action on the bond for dnmnges: 
 The bond contemplated by statute in case of 
 a temporary injunction is to cover such dam- 
 ages aa may be adjudged against the obligors 
 in an action brought thereon. The amount 
 of damages cannot be adjudged in the orig- 
 inal action. No such issue can be joined 
 therein : Fountain v. West, 68-380. 
 
 157. Attorneys' fees: In an action on the 
 bond, reasonable compensation for legal serv- 
 ices in securing a dissolution of the injunc- 
 tion may be recovered ; but not attorneys' fees 
 for services in defending the entire suit: 
 Behrens v. McKenzie, 23-333; Langworthy 
 V. McKelvey, 35-48. 
 
 158. Where an action was brought to have 
 certain taxes declared illegal and void and a 
 temporary injunction was granted restrain- 
 ing their collection, but no steps were taken 
 to have such injunction dissolved before final 
 hearing, when it was dissolved, held, that the 
 injunction being merely auxiliary, defend- 
 ant was not entitled in an action on the in- 
 junction bond to recover attorneys' fees: 
 Canoll County v. Iowa R. Land Co., 53-685. 
 
 159. If the injunction is dissolved after 
 heai-ing on the merits and this is all there is 
 in the case, counsel fees might'be recovered. 
 Such recovery is not confined to cases where 
 the injunction is dissolved on motion : Lang- 
 mHhy v. McKelvey, 25-48. 
 
 ICO. Where the motion to dissolve is made 
 in good faith and affidavits filed in support 
 thereof, but the court declines to pass upon 
 it until final hearing, when the injunction is 
 
 dissolved after hearing upon the merits, coun- 
 sel fees for preparation of motion, etc., may 
 be recovered in suit upon the bond : Wallace 
 V. York, 45-81 ; Fountain v. West, 68-380. 
 
 161. An allowance of attorneys' fees for 
 time spent in drawing useless affidavits 
 would be improper; Ellwood Mfg. Co. v. 
 Rankin, 70 . 
 
 162. Fees for the services of an attorney in 
 a case in the supreme court after the dissolu- 
 tion of the injunction should not be allowed: 
 Ibid. 
 
 163. Where an injunction is the only relief 
 sought, and dissolution is procured only upon 
 final hearing, attorneys' fees should, in an 
 action on the bond, be allowed for defending 
 in the entire action: Reece v. Northway, 58- 
 187. 
 
 16i. An attorney's fee may be recovered 
 where the injunction is dissolved on motion, 
 and also where it is dissolved on final hearing, 
 if it is the only relief sought. It may also be 
 allowed in case of partial dissolution or mod- 
 ification, where such is the relief sought in 
 the motion, but not where the motion is to 
 dissolve as an entirety and is only partially 
 sustained or a modification is granted: Ford 
 V. Loomis, 62-586. 
 
 165. Dismissal of action : In an action on 
 an injunction bond given to stay execution 
 on a judgment, where it was alleged that an 
 aetion for injunction had been dismissed, 
 held, that the entry on the judgment calen- 
 dar, " dismissed as per stipulation," was not 
 sufficient evidence as to that fact in the ab- 
 sence of a showing as to what that stipulation 
 was : Towle v. Leaeox, 59-43. 
 
 166. Other dnm.iges: Where real estate 
 depreciates in value during the time that sale 
 thereof is prevented by injunction proceed- 
 ings, there is no presumption that the owner, 
 if not prevented, would have sold before de- 
 preciation and saved himself from loss, and 
 damages are not recoverable for loss of sale 
 unless it is made to appear that there was a 
 bona fide application on the part of some 
 person to buy, and that the sale was lost by 
 reason of the injunction : Reece v. Northway, 
 58-187. 
 
 167. Defendant having a lot of unburned 
 brick which were damaged by rain while an 
 injunction was in force, restraining him from 
 carrying on the manufacture of such brick 
 
888 
 
 INJUNCTIONS, II, e — INNKEEPERS. 
 
 Violation. — WIio deemed innkeeper ; guest; boarder. 
 
 on the premises, held, that the writ of injunc- 
 tion as issued did not prevent him from 
 taking steps to protect the brick from the 
 rain, and if he was negligent in that respect, 
 he could not recover for damages sustained 
 thereby : Behrens v. McKenzie, 23-333. 
 
 1G8. Defense; insanity: A bond given 
 in an injunction proceeding is in the nature 
 of an executed rather than an executory 
 contract, and the fact that the one signing 
 the bond and enjoying the benefit of the 
 writ was insane at the time of signing it 
 will constitute no defense to an action on the 
 bond, if it appears that his insanity was not 
 known to the opposite party : Ibid. 
 
 160. Summary damnges should not be al- 
 lowed on dissolution of an injunction unless 
 they are such as ai-e the immediate and nec- 
 essary result of the allowance of the writ 
 and depend simply upon computation for 
 their determination, as the allowance of in- 
 terest when the payment of money is 
 restrained. In other cases, the pavty should 
 be left to his remedy by an action : Taylor 
 V. Broivnfield, 41-364. ' 
 
 170. Bond conslrued: In aparticular case, 
 held, that the bond rendered the obligor lia- 
 ble only for costs of the proceeding and not 
 for other damages which accrued : Clifford v. 
 Mohr, 47-279. 
 
 171. Right of action accrues on the bond 
 at the final determination of the injunction 
 suit, and not at the previous dissolution of 
 the temporary injunction : Bank of Monroe 
 ■0. Qijford, 65-648. 
 
 e. Violation. 
 
 1 72. Where a party is in court and hears 
 an order for the injunction pronounced, he 
 is as much bound thereby as if he had actu- 
 ally been served with the writ: Milne v. 
 Van Buskirle, 9-558. 
 
 173. So long as an injunction remains in 
 force, the party bound thereby must obey it : 
 Langworthy v. McKelvey, 25-48. 
 
 174. In seeking to punish a party for the 
 violation of an injunction it must be taken 
 in the form in which it was looked at by the 
 court rendering it : Lamb v. Burlington, C. 
 R.&M. JJ. Co., 89-338. 
 
 175. Proof of a violation of the injunction 
 should usually be made by affidavit : State v. 
 Myers, 44-580. 
 
 176. Contempt of court in violating an 
 injunction should be dealt with as other con- 
 tempts. The proceedings are merely inci- 
 dental to the original proceeding and there 
 is no appeal : First Cong. Church v. Musca- 
 tine, 2-69. 
 
 177. Any error in the injunction proceed- 
 ing in granting an injunction without proper 
 evidence cannot be raised by way of defense 
 to a proceeding for contempt in violating 
 such injunction: Jordan v. Circuit Court, 
 69-177. 
 
 178. The fact that the order allowing an 
 injunction is not indorsed on the petition but 
 is entered on a separate piece of paper will 
 not prevent a violation of such injunction 
 being a contempt : Ibid. 
 
 179. Damages: A party is liable for all 
 damages resulting from a refusal on his part 
 to obey the mandate of an injunction gi-anted 
 against him : Benson v. Connors, 63-670. 
 
 INNKEEPERS. 
 
 1. Who deemed: To render a person liable 
 as a common innkeeper it is not sufficient to 
 show that he occasionally entertains travelers 
 for a compensation ; it must appear that he 
 makes tavern-keeping to some extent a busi- 
 ness and means of livelihood and holds himself 
 out to the world as an innkeeper. It is not 
 necessary, however, that he should have a 
 sign and a license, provided that he has in any 
 other manner authorized a general under- 
 standing that his is a public house where 
 strangers have a right to require accommo- 
 dation: Lyonv. Smith, Mor., 184. 
 
 2. Who deemed guest: The guest comes 
 without any bargain for time, remains with- 
 out one, and may go when he pleases, paying 
 only for the actual entertainment received; 
 and the rule is not changed by the fact that 
 the person remains a long time in the inn in 
 this way : Shoecraft v. Bailey, 25-558. 
 
 8. Boarder:- An allegation that a party 
 boarded with the innkeeper is not sufficient 
 to show that he was a mere boarder and not 
 a guest : Pollock v. Landis, 86-651. 
 
 4. Liability; notice to guost: Before the 
 enactment of a statutory provision on the 
 subject (see 18 G. A-, ch. 181), held, thatthe 
 mere taat that a notice was posted on 
 
INNKEEPERS — INSANITY. 
 
 889 
 
 Liability; public calling. — Insanity defined. 
 
 the door of a guest's room, limiting tbe inn- 
 keeper's liability unless certain requirements 
 were observed, would not raise a presumption 
 of knowledge thereof on the part of the 
 guest, and that the guest would not be 
 chargeable with notice unless it appeared 
 that he had actual notice, or that he wilfully 
 or negligently failed to read the notice posted : 
 Bodwell V. Bragg, 29-333. 
 
 6. Neg:ligence of guest: The fact that the 
 guest, when giving his pocket-book into the 
 innkeeper's care for safe keeping, did not 
 state that there was money therein, held not 
 EufBcient to show negligence on the guest's 
 part: Shoecraft v. Bailey, 25-553. 
 
 C. Termination of liability: Where aper- 
 son stopped at an inn for several days and 
 then paid his bill and departed, leaving his 
 trunk with the landlord and stating that he 
 would return in three or four days, held, 
 that the relation of guest and innkeeper 
 terminated at the time of such departure, 
 and the innkeeper could not be held liable as 
 Buch for delivering the trunk to the wrong 
 person during the absence of the owner: 
 Eays V. Turner, 33-314. 
 
 7. An innkeeper's lien exists by common 
 law and may be enforced against property 
 exempt from execution, as, for instance, a 
 coat: Swan v. Bournes, 47-501. 
 
 8. No lien as agniust boarder: An inn- 
 keeper has a lien upon the goods of a guest 
 but not upon those of the boarder: Pollock 
 V. Landis, 36-651. 
 
 9. Public calling: The business of an inn- 
 keeper is such that, although conducted by 
 private parties for their own emolument, the 
 public has such interest therein that it is 
 properly the subject of regulation by law, 
 and those engaged in it are subject to restric- 
 tions and limitations which do not apply to 
 persons engaged in other kinds of business: 
 BowUn V. Lyon, 67-538. 
 
 INSANITY. 
 
 See, also, CtoNTBACrs, VI, b; Convet- 
 AKCEs, §.5 9-12; Criminal Law, §§ 8-24; Ev- 
 idence, g§ 81-83, 384-393, 859, 860; Guard- 
 ianship, §§95-101; Jurisdiction, § 198; 
 IJMiTATioN OP Actions, § 148 ; Wills, g§ 20- 
 
 As a defense in slander, see Slander and 
 Libel, § 93. 
 
 1. Defliieil : A person who, of sound mind 
 until nine years of age, then became affected 
 with epilepsy and gradually lost lier mind 
 until she was unable to take the slightest 
 cai-e of herself, held insane within the mean- 
 ing of the statutory provision (Code, § 1434) 
 defining insanity : Speedling v. Worth County, 
 68-153. 
 
 2. Finding as to insanity: The interroga- 
 tories and answers appended to the certificate 
 of the physician appointed by the commis- 
 sioners to make personal examination, touch- 
 ing the condition of the person claimed to h& 
 insane, are not competent evidence as to 
 whether the party was insane previous to the 
 time of the examination : Butler v. St. Louis 
 L. Ins. Co., 45-93. 
 
 3. The provision of Code, § 1401, allowing 
 an appeal from the findings of the commis- 
 sioners of insanity, and the further' provisions 
 of the Code, g§ 1442 and 1444, allowing sub- 
 sequent investigation of the question of san- 
 ity, prevent the provisions as to the findings 
 of the commissioners of insanity from being in 
 conflict with the constitutional guaranties 
 against deprivation of personal liberty with- 
 out due jury trial: Black Hawk County i;. 
 Springer, 58-417. 
 
 4. An appeal from the findings of the com- 
 missioners not being taken within the time 
 allowed, such appeal cannot be secured by 
 moving for a rehearing and then appealing 
 from the refusal to gi-ant it. The commis- 
 sioners are not authorized to grant a re- 
 hearing in such case: Wilson v. State, 66- 
 487. 
 
 5. Support .and treatment of insane per- 
 sons : Notice to the county in which the per- 
 son has a legal settlement is a condition 
 precedent to the right of recovery against 
 such county, by another county, for the sup- 
 port of such person: Poweshiek County v. 
 Cass County, 63-244. 
 
 0. Where the county furnishing the relief 
 gives notice to the supposed county of settle- 
 ment that the relief is being fui-nished, with- 
 out making an order for removal, and after- 
 wards sues to recover for the relief thus 
 furnished, the circuit court does not have 
 exclusive jurisdiction of the action: Winne- 
 shiek County V. Allamakee County, 63-558. 
 
890 
 
 INSANITY— INSTRUCTIONS, I. 
 
 Insane tax. — Form and method of giving instructions. 
 
 7. Where an adult is adjudged insane and 
 a fit subject to be treated in the hospital, but 
 cannot be admitted there and is otherwise 
 maintained and treated, his father is not 
 liable for the expense of his maintenance, al- 
 though he is appointed custodian : Speedling 
 V. Worth County, 68-152. 
 
 Further as to support of poor persons, see 
 Poor. 
 
 8. Insane tax: By the provisions of 13 G. 
 A., oh. 109, § 41, corresponding to Code, 
 § 1438, but not identical with it, no authority 
 was given to the board of supervisors to levy 
 an independent or special tax for paying 
 the expenses of insane persons from the 
 county in the hospital for the insane: Iowa 
 JR. Land Co. v. Carroll County, 39-151. 
 
 9. Liability of relatives to county: The 
 "relatives" contemplated in Code, g 1483, as 
 it stood before its amendment, were only 
 such as were legally bound for the support 
 of the insane person. A father is not legally 
 bound to support his adult children, and 
 therefore was not liable for the expenses of 
 his adult children in the insane hospital: 
 Monroe County v. Teller, 51-670. 
 
 10. Under this section as amended, a hus- 
 band is not liable for the expense of treating 
 an insane wife sent to the hospital by the 
 commissioners of insanity. Such expense is 
 not a family expense : Delaware County v. 
 McDonald, 46-170. 
 
 11. The claim of the county against the 
 estate of an insane person for expenses of his 
 treatment becomes a lien from the commence- 
 ment of the suit by the county to recover for 
 the expenses of support, and collection is to 
 be made, as in^the case of any other claim, by 
 action, judgment and execution. There is no 
 lien until it is allowed by the court : Thode v. 
 Spofford, 65-294. 
 
 12. Tlsiting committee to hospital: The 
 visiting committee has no authority to punish 
 witnesses for contempt in refusing to testify 
 heioxe a : Brown V. Davidson 59-461. 
 
 INSTRUCTIONS. 
 
 I. Form op and method of giving. 
 H. Duty to instruct; refusal of in- 
 STRUCTio>'S ; modification. 
 
 m. Subject-matter of instructions. 
 
 a. In general; misleading and errone- 
 
 ous; effect of error. 
 
 b. Stating the issues. 
 
 TV. Pertinency to issues and evidencb, 
 
 a. In general. 
 
 b. As to questions of fact. 
 
 c. As to the effect of viritten instrur 
 
 ments, records, etc. 
 
 d. Construction ; conflicting instruo- 
 
 tions. 
 
 e. Duty of jury to follow. 
 
 f. Wliat objections-may be raised or 
 
 errors cured by instructions. 
 
 In criminal cases, see Criminal Law, HI, 
 10, e. 
 
 As to directing the verdict of the jury, see 
 Practice, III, f. 
 
 I. FOEM OF AND METHOD OF GIVING. 
 
 1. In writing: Under the statutory pro- 
 vision (Code, g 2784) requiring instructions to 
 be in writing, it is error to orally explain an 
 instruction given, or to charge the jury ver- 
 bally : Head v. Langworthy, 15-235. 
 
 2. Where the jury sent questions to the 
 judge, in response to which he told them 
 orally that their questions had nothing to do 
 with the case, and that it was their duty to 
 determine the case under the evidence and 
 instructions given, held, that such action was 
 not erroneous, it not being an instruetion to 
 the jury, but a refusal to instruct : Sullivan 
 V. Collins, 18-228. 
 
 3. It is not error in the court, after read- 
 ing to the jury instructions asked by one of 
 the parties, to state orally that such instruc- 
 tions are given at the request of such party: 
 Scott V. Chicago, M. <& St. P. R. Co., 68-360. 
 
 4. A direction to the jury to find a verdict 
 for one party, when such direction is proper, 
 need not be in writing: Milne v. Walker, 59- 
 186. 
 
 6. Instructions asked, written in pencil, can- 
 not be refused as not being in writing, as re 
 quired by the statute: Harvey v. Tama 
 County, 53-328. 
 
 6. The rule requiring instructions to be in 
 writing is sufiaciently complied with by pre- 
 senting them in print: State v. Fodks, 65-196. 
 
 7. Where instructions were given orally 
 
INSTRUCTIONS, I. 
 
 891 
 
 Form of and method of giving. 
 
 and afterwards reduced to writing, with the 
 acquiescence of defendant, held, that it was 
 not ground for reversal on defendant's appeal : 
 State V. SipuU, 17-575. 
 
 8. If a party sits by with the knowledge 
 that the statute requiring instructions to be 
 in writing is not being complied with, and 
 without excepting to the oral charge, he can- 
 not afterwards be allowed to complain: 
 Eead v. Langworthy, 15-335. 
 
 9. Modification of instructions asked 
 may be made by cutting off a part of the sheet 
 on which the instruction is written, notwith- 
 standing the particular provisions of Code, 
 § 2785, as to the method of making modifica- 
 tions: Ham V. Wisconsin, I. & N. R. Co., 
 61-716. 
 
 Further as to modifications, see infra, 
 §§ 70-76. 
 
 10. Giving instructions to jury witliont 
 reading: A party who, without objection, 
 permits instructions to be handed to the jury 
 as given, without being read, eannot after 
 verdict object to the action of the court in so 
 doing: Langworthy v. Meyers, 4-18; Tatty v. 
 Lusk, 4^469. 
 
 11. When to be asked : Instructions which 
 are submitted during the opening and only 
 argument made at the trial cannot be re- 
 fused as being presented too late : McCald) 
 V. Smith, 22-243. 
 
 12. Marking as " given " or as " refused :" 
 Where several instructions were asked, writ- 
 ten on sheets of paper fastened at the top, and 
 on the margin of the first sheet the court 
 
 j wrote, " instructions one to seven, all re- 
 fused," held, that this was a substantial com- 
 pliance with the statute (Code, g 2786) re- 
 quiring the court to write "given" or 
 "refused" in the margin of each instruction, 
 and was a refusal such that exception might 
 be taken thereto: Harvey v. Tama County, 
 53-228. 
 
 13. Unless it is stated on the margin or 
 elsewhere that an instruction complained of 
 was "given," it will not be regarded as prop- 
 erly before the court on appeal. The recital 
 m the clerk's transcript that an instruction 
 was given is not sufiicient: Cadwallader v. 
 Blair, 18-420. 
 
 14. Noting exceptions: Where the fact of 
 giving or refusing to give instructions and 
 exceptions thereto is entered in the margin 
 
 in the handwriting of the judge, and the 
 giving of such instructions is afterwards 
 made a ground for sustaining a, motion for 
 new trial, it will be presumed that such entry 
 was made at the time the instructions were 
 passed upon: Kellow v. Central Iowa JR. Co., 
 68-470. 
 
 15. If the ruling of the court upon an in- 
 struction with a proper exception thereto is 
 noted on the margin of the instruction, it is 
 sufficient, and a formal bill of exceptions 
 is not necessary, although proper: Cadwal- 
 lader V. Blair, 18-420 ; Phillips v. Starr, 2&- 
 349. 
 
 1 6. Instructions in a criminal case, not 
 made part of the record by being signed as 
 required hi such cases or embodied in a bill 
 of exceptions, are not to be considered on 
 appeal: State v. Oebhardt, 13-473; State v. 
 Watrous, 13-489. 
 
 17. Error in the giving of instructions 
 may be made the ground of a motion for a 
 new trial, whether exceptions were taken to 
 the instructions at the time they were given 
 or not. (So held under the provisions of Code 
 of '51, different from those of the present 
 Code) : Farr v. Fuller, 8-347. 
 
 Further, see Exceptions, §g 38-57. 
 
 18. HoH made part of the record: Before 
 the enactment of the statutory provision 
 that the instnictions shall become a part of 
 the record, it was held that they were not so 
 by law, and unless embodied in the record by 
 bUl of exceptions could not be considered on 
 appeal : Pierce v. Locke, 1 1-454. 
 
 Further, see Exceptions, gg 86-91. 
 
 Appeal: As to what must appear to en- 
 able the supreme court to review alleged 
 errors in giving or refusing instructions, see 
 Appeals, §§ 359-271. 
 
 As to the presumptions entertained in 
 behalf of the lower court with regard to 
 instructions, see Appeals, gg 333-331. 
 
 As to error without prejudice in giving in- 
 structions, see Appeals, gg 431-453. 
 
 19. Additional instructions: If further 
 instructions are to be given to the jury after 
 they have retired, they must be given in open 
 court, that an opportunity may be offered to 
 know what they are and except to them, if 
 desired, and to ask others if deemed neces- 
 sary: O'Connor V. Guthrie, 11-80. 
 
 20. Additional instructions should not be 
 
892 
 
 INSTRUCTIONS, II. 
 
 Duty to instruct ; refusal ; modification. 
 
 given without notice to counsel of the par- 
 tics: Davis V. Fish, 1 G. Gr., 406. 
 
 As to additional instructions in criminal 
 cases, see Ceiminal Law, g§ 1319-1331. 
 
 Directing verdict: See Practice, III, f. 
 
 21. Special interrogatories: It is proper 
 and not uncommon, in the submission of spe- 
 cial interrogatories, to instruct the jury as to 
 the mode and manner of answering each one, 
 according as they find the facts to exist: 
 State V. Geddis, 43-364. 
 
 Further as to special interrogatories, see 
 Peacticb, in, d. 
 
 II. Duty to insteuct ; eefusal ; modi- 
 fication. 
 
 22. A justice of the peace has no author- 
 ity to give instructions to a jui-y in his court : 
 St. Joseph Mfg. Co. v. Harrington, 53-360. 
 
 23. Duty to inslract: It is the duty of the 
 judge to see that every case is so presented 
 to the jury that they have clear and intelli- 
 gent notions of what they are to decide, and 
 necessary instructions should therefore be 
 given, although not requested by counsel, 
 and a failure to give such instructions may 
 be ground for new trial, when the verdict 
 does not effectuate justice between the pai-- 
 ties : Owen v. Owen, 23-370. 
 
 24. If the instructions asked by counsel 
 are defective and insufiicient, and the case is 
 complicated, or the law applicable to it not 
 supposed to be within the knowledge of jury- 
 men, and, particularly, if the charge is of a 
 high criminal offense, it is the duty of the 
 court to point out to the juiy controverted 
 questions of fact, and state the law applica- 
 ble to them, and a failure to do so will be 
 error : State v. Brainard, 35-573. 
 
 25. Where, in a criminal prosecution, the 
 court gave full instructions as to the theory 
 of the case relied on by the prosecution, but 
 omitted to give instructions upon an essential 
 part of the case upon the theory upon which 
 defendant relied, held, that the judgment 
 should be reversed: State v. O'Hagan, 88- 
 504. 
 
 2G. Where instructions, although correct 
 as far as they go, do not announce such rule 
 as is necessary for the guidance of the jury, 
 the giving of them will amount to error : Du- 
 rant v. Fish, 40-559. 
 
 2 7. The fact that art instruction directs the 
 attention of the jury to certain things proper 
 to be considered, as well as to the facts and 
 circumstances surrounding the case, will not 
 constitute error merely because it omits to 
 direct their attention to other facts which 
 might be proper for them to consider : AHen- 
 der V. Chicago, R. I. & P. R. Co., 43-376. 
 
 28. The reasons for the rules of law con- 
 tained in instructions to the jury need not 
 be stated: State v. Turner, 19-144; State v. 
 RorabacJier, 19-154. 
 
 29. Instructions shaiild be asked: It is 
 not incumbent on the court, on its own mo- 
 tion, to instruct as to a matter upon which 
 an instruction is not requested by the party 
 desiring it: Smith v. Chicago, M. & St. P. 
 R. Co., 60-513. 
 
 30. Where it does not appear but that sub- 
 stantial justice has been effected, and further 
 instructions have not been asked, the case 
 should not be reversed for iailure of the 
 court to more fully instruct the jury : Hvb- 
 bell V. Ream, 31-289. 
 
 31. If instructions given do not embrace 
 the law applicable to the case, it is the duty 
 of the party desiring a fuller or broader in- 
 struction to ask it, and if he fails to do so, 
 he cannot object to an instruction which is 
 given and is correct as far as it goes : Gwinn 
 V. Crawford, 43-68. 
 
 32. Mere failure to instruct may be re- 
 versible error if it appears that defendant 
 has not had a fair trial. But where instruc- 
 tions are correct as far as they go, defendant 
 cannot be heard to complain of failure to in- 
 struct as to matters as to which no instruc- 
 tions have been asked : State v. JBelvin, 65- 
 389. 
 
 33. Failure to state the law upon a partic- 
 ular point will not avail defendant if he has 
 not asked instructions on such point : State 
 V. Tweedy, 11-350; State ex rel. v. O'Day, 
 69-368. 
 
 34. A party cannot object on the ground 
 of failure of the court to fully instruct the 
 jury unless he has asked proper instructions 
 on the point on wliich he claims the charge to 
 be defective : Aidt v. Sloan, 4r-508. 
 
 35. Failure of the court to insti-uct as to 
 other points upon which no instructions were 
 asked wiU not be error where the instructions 
 given are correct as far as they go : Mackie 
 
INSTRUCTIONS, II. 
 
 893 
 
 Duty to instruct ; refusal ; modification. 
 
 V. Central B, of .Iowa, 54-540 ; Hall v. Stew- 
 art, 58-681. 
 
 86, Where an instruction is correct as far 
 as it goes, it wiU not generally be considered 
 erroneous for not stating additional rules ap- 
 plicable to the same point, unlesj the opposite 
 party asks an instruction for the purpose of 
 Bupplenienting it : Qwynn v. Duffield, 66-708. 
 
 37. Objection that instructions are not 
 more specific cannot be urged by a party 
 who failed to ask more specific instructions : 
 D&on V. Stewart, 33-125 ; Harrison v. Iowa 
 Midland B. Co., 36-333; Koehler v. Wilson, 
 40-183. 
 
 38. If a party desires to have a question 
 specifically presented to the attention of the 
 jury, he should ask an instruction upon it : 
 State V. Hazen, 39-648; McCausland v. 
 Cresap,ZQ. Gr., 161. 
 
 39. Where an instruction contains affirma- 
 tive error, appellant will not be debarred 
 from complaining thereof, because he fails 
 to ask an instruction which would have 
 contravened the one given and expressed the 
 correct rule : State v. Pennell, 58-39. 
 
 40. Befiisal of irrelevant instructions: 
 It is not error to refuse instructiotis which 
 are irrelevant to the issue : Ford v. Jefferson 
 Cmmty,i(i.Gr.,213. 
 
 41. Instructions may be refused which, 
 while coixect, are not essential to enable the 
 jury to undei-stand the questions involved : 
 Hale V. Philbriolc, 47-217. 
 
 42. Refusal to modify: Although the court 
 may in its discretion, modify instructions 
 asked and give them as modified, yet it is not 
 under obligation to so correct or limit them. 
 It may refuse them entirely and leave the 
 paity proposing them to assume the hazard 
 of their entire correctness : Tifield v. Adams, 
 3-487; Keenan v. Missouri State Mut. Ins. 
 Co., 13-126. 
 
 43. It is not eiTor to refuse an instruction 
 which could not be properly given without 
 modification: Chimes v. Martin, 10-347; 
 Morrison v. Myers, 11-538. 
 
 44. Kefnsal as to facts in detail: The 
 court may properly refuse instructions which 
 merely call the attention of the jury to par- 
 ticular facts and circumstances testified to by 
 the witnesses in the case which are proper 
 for their consideration. It might be imprac- 
 tical to instruct as to all the facts in detail: 
 
 Kline v. Kansas City, St. J. & C. B. B. Co., 
 50-656; State v. Miller, 65-60. 
 
 45. The jury having been instructed that 
 plaintiff could not recover, unless they found 
 the existence of the contract relied on by 
 him, held, that it was unnecessary to further 
 instruct that plaintiff could recover upon 
 proof of other matters : Poole v. Hintrager, 
 60-180. 
 
 4G. Refusal of proper instructions er- 
 ror: The court shall give instructions asked, 
 if they are correct and there is any basis for 
 them in the testunony : State v. Gibbons, 10- 
 117. 
 
 47. Where letters were put in evidence to 
 prove an admission and also to be used by 
 way of comparison to prove the genuineness 
 of a signature, held, that it was error to re- 
 fuse to instruct the jury that they might 
 make such comparison : Saunders v. Howard, 
 51-517. 
 
 48. The refusal of the court to give instruc- 
 tions correct in law arid supported by the 
 evidence and not covered by insti-uctions 
 given constitutes reversible error : Prichard v. 
 Hopkins, 53-120 ; Spaidding v. Adams, 63-437. 
 
 40. It is not sufficient that the jury might 
 have considered evidence referred to without 
 an instruction. If it is proper for the jury 
 to consider matters referred to in the instruc- 
 tion, it is proper for the court to so instruct 
 them : Spaulding v. Adams, 63-437. 
 
 50. An instruction simply calliag the at- 
 tention of the jury to certain matters wliich 
 the evidence tends to establish, informing 
 them that they should consider such circum- 
 stances, should be given if requested and 
 correct in law : Ibid. 
 
 ' 61. Instructions cannot be refused on the 
 ground of being unnecessarily lengthy and 
 numerous : McCaleb v. Smith, 23-343. 
 
 52. The refusal of an instruction calling 
 attention to the effect of impeaching evi- 
 dence upon the credibility of any particular 
 witness, held not error where a general in- 
 struction on that question was given: State 
 V. Curran, 51-118. 
 
 53. Also held not error to refuse an in- 
 struction cautioning the jury not to put a 
 strained construction upon the testimony of 
 the prosecuting witness: Ibid. 
 
 54. Eeiusai of instructions othernisa 
 given : It is not error to refuse instructions 
 
894 
 
 INSTRUCTIONS, 11. 
 
 Duty to instruct ; refusal ; modification. 
 
 asked where the subject is properly covered 
 by instructions given by the court : Rusch v. 
 Davenport, 6-443; State v. Castello, 62-404. 
 
 55. The court is not bound to repeat the 
 instructions previously given: Trustees of 
 Iowa College v. Hill, 13-462. 
 
 5G. It wiU not constitute error to refuse 
 instructions when others given by the court 
 cover precisely and fully the same ground: 
 Eai'per v. Madren, 21-407. 
 
 57. It is not error to refuse instructions 
 which are correct if others to the same effect 
 have been given: Clinton Nat. Bank v. 
 Torry, 30-85 ; Todd v. Branner, 30-439; Hop- 
 per V. Moore, 42-563. 
 
 58. It is not error to refuse instructions 
 which though correct are substantially cov- 
 ered by instructions given by the covirt: 
 Price V. Alexander, 2 G. Gr., 427; Raver v. 
 Webster, 3-502 ; Rusch v. Davenport, 6-443 ; 
 Mills V. Mdbon, 9-484 ; Payne v. Billingham, 
 10-3C0; State V. Hockenberry, 11-269; iimds- 
 hoff V. Barrett, 14-101 ; Russ v. Steamboat 
 War Eagle, 14-363 ; State v. Rorabaoher, 19- 
 154; State v. Schlagel, 19-169; Harper v. 
 Madren, 21-407; Robinson v. Illinois Cent. 
 E. Co., 30-401; Wilhelm v. Fimple, 31-131; 
 Mascwell v. Gibbs, 83-32; State v. Morphy, 
 33-270 ; Kline v. Kansas City, St. J. & C. B. 
 R. Co., 50-656; Thomas v. Brooklyn, 58-438; 
 Thompson v. Keokuk, 61-187; Votaw v. 
 Diehl, 63-676; Gee v. Moss, 68-318. 
 
 69. When the law of the case ha.s once 
 been stated to the jury, all further instruc- 
 tions should be refused : Wilson Sewing Ma- 
 chine Co. V. Bull, 53-554. 
 
 60. It is not error to refuse an instruction 
 siabstantially given in another form which 
 is as beneficial to the party as if given in. the 
 form asked by his counsel : State v. Stanley, 
 33-526. 
 
 01. Where by agi-eement of the parties 
 instructions given by the court were to be 
 decisive of the case, held, that the refusal to 
 give every instruction asked by one of the 
 parties could not be construed as error : Par- 
 sons V. Hedges, 15-119. 
 
 (i2. It is not error to refuse one instruction 
 and give another in its place which differs 
 from the former merely in words and not in 
 essential meaning : Galpin v. Wilson, 40-90. 
 
 63. It is not error to refuse instructions em- 
 bodying propositions which are all forcibly 
 
 and favorably presented in instructions given : 
 State V. Donneker, 40-340. 
 
 64. It is not error to refuse an instruction 
 which presents a doctrine that has been fairly 
 stated in another instruction : Allen v. Bur- 
 lington, C. a. & N. R. Co., 57-623. 
 
 65. Where the instructions given fairly 
 submit the merits of the controversy to the 
 jury, the refusal to give others substantially 
 covered by those given will not constitute 
 error: Van Winter v. Henry County, 61-684. 
 
 66. Where one instruction states to the 
 jury the rule as to an element of the case, it 
 is not necessary to repeat the same rule in 
 connection with other instructions : State v. 
 Heatherton, 60-175. 
 
 67. Particular instrnctions: Each pai-ty 
 has the right to have the jury instructed 
 upon the law of the case clearly and point- 
 edly, so as to leave no ground for error or 
 mistake, and it is error to refuse an instruc- 
 tion correct in law and applicable to the evi- 
 dence which instructs as to a particular state 
 of facts, although the general proposition is 
 covered by other instructions : Muldowney v. 
 Illinois Cent. R. Co., 33-176; Perry v. Du- 
 buque Southwestern R. Co., 36-102; Manuel 
 v. Chicago, R. I. & P. R. Co., 56-655; Park- 
 hill V. Brighton, 61-103. 
 
 68. It is error to refuse au instruction 
 du'eotly applicable to facts of which there is 
 evidence before the jury, although the prin- 
 ciples of law to which such facts relate are 
 properly stated in the instructions given: 
 Muldowney V. Illinois Cent. R. Co., 39-615. 
 
 69. It is error to refuse correct instructions 
 which are relevant, even though the same in- 
 structions are given in a different form: 
 Webster v. Raver, 4 G. Gr., 436. 
 
 70. Modifications of instructions asked 
 should not be by interlineation or erasuie: 
 Phillips V. Starr, 36-349. 
 
 71. In giving instructions the court is not 
 limited to the language adopted by the party 
 requesting them, but may modify them to 
 meet its views; but if, as so modified, they do 
 not express the law, they are subject to ob- 
 jection : State v. Gibbons, 10-117 ; Abbott v. 
 Striblen, 6-191. 
 
 72. It wiU not constitute error to add to an 
 instruction a modification, which does not 
 change its meaning : Moore v. Chicago, B. & 
 Q. R. Co., 65-505. 
 
INSTRUCTIONS, III, a. 
 
 895 
 
 Subject-matter of. — In general. 
 
 73. ndd not error to modify an instruction 
 so as to make it as broad as the issues be- 
 tween the parties : Large v. Moore, 17-358. 
 
 74. Modifications will not be erroneous 
 which are merely woi-ds of explanation ex- 
 pressing that which must have been under- 
 stood had they not been added: Paukett v. 
 lAvermore, 5-277. 
 
 75. Where an instruction asked by a party 
 is modified by the court with matter not 
 pertinent thereto, or erroneous if pertinent, 
 it will constitute error: State v. Green, 20- 
 434. 
 
 76. A modification of an instruction by 
 cutting out a portion of it, held not to consti- 
 tute error where the change was a proper 
 one: Ham v. Wisconsin, I. & N. R. Co., 61- 
 716. 
 
 III. SUBJECT-MATTEE OF INSTEtTOTIONS. 
 
 a. In gensral; misleading and erro- 
 neous; effect of error. 
 
 77. The charge in general: It is better as 
 a general rule for the judge to put aside the in- 
 structions asked and cover the whole gi'ound 
 in a methodical charge of his own : State v. 
 Conins, 20-85. 
 
 78. Where numerous and conflicting in- 
 structions are asked by the opposite parties 
 they should be subjected to the mental alem- 
 bic of the judge and materially reduced and 
 purified and moulded to the facts of thQ 
 case: Murphy v. Chicago, R. I. &P. R. Co., 
 38-539. 
 
 79. It is not good practice for the court to 
 charge the jury in chief and then give all 
 the instructions asked by either party. A 
 clear and distinct enunciation of the law 
 should be given : Wilson Sevring Machine Co. 
 «. Bull, 52-554. 
 
 80. Ordinarily where the whole law of 
 the case is given to the jury, although at the 
 instance of the difiEerent parties, the supreme 
 court will not interfere, but the instructions 
 must be consistent as a whole, and not mis- 
 leading: Hohen v. Burlington &M. R. R. Co., 
 20-562. 
 
 81. Instructions to the jury which partake 
 of the nature of an argument are to be dis- 
 couraged, and courts should labor to give 
 such only as present the issues in a clear, 
 
 single, plain and unincumbered manner: 
 State V. Turner, 19-144. 
 
 82. While it is not good practice to ask 
 instructions whioli are simply intended to 
 constitute a reply to the argument of counsel 
 on the other side, and such instructions can 
 usually be properly refused, yet where the 
 ai-gument of counsel contained statements 
 not warranted by the evidence, held, that it 
 was error to refuse an instruction which was 
 intended to correct any misapprehension 
 growing out of such improper argument: 
 State V. McCartney, 65-522. 
 
 83. Foreign terms: The use of the word 
 onus in an instruction held not objectionable; 
 for, though a Latin word, it is incorpo- 
 rated into our language : In re Will of Con- 
 vey, 52-197. 
 
 84. Should be clear and consistent: In- 
 structions should be brief and perspicuous; 
 and where they are confused or in conflict, 
 to the probable prejudice of the complaining 
 party, a new trial should be granted : Eyser 
 V. Weissgerber, 3-463; Hdbenv. Burlington, 
 & M. R. R. Co., 20-562. 
 
 85. The whole charge, as given, should be 
 consistent, and so framed as not only to state 
 the law correctly, but in such manner as not 
 to confuse the jury : Hohen v. Burlington & 
 M. R. R. Co., 20-562. 
 
 86. Abstract propositions: Instructions 
 should clearly present the rules applicable to 
 the peculiar facts of the case rather than 
 general and abstract propositions of law, the 
 bearing and force of which will not be fully 
 understood and correctly applied by the 
 jury : State v. Glynden, 51-463. 
 
 87. The giving or refusal of an instruction 
 upon a mere abstract proposition of law, not 
 referring in any way to the evidence, is not 
 sufficient to wan-ant a reversal, unless it may 
 be fairly inferred that the jury was thereby 
 misled to the prejudice of the party com- 
 plaining: McGregor v. Armill, 3-30. 
 
 88. While the giving of instructions con- 
 taining abstract, propositions of law not ap- 
 plicable to the evidence will not in itself 
 constitute prejudicial error, yet, if the jury 
 are thereby left without any other guide in 
 applying the evidence to the case, that fact 
 may in itself constitute error warranting a 
 reversal: State v. Thompson, 45-414. 
 
 89. It may also be error to give instructions 
 
896 
 
 INSTEUCTIONS, III, a. 
 
 Misleading and erroneous. 
 
 embodying abstract propositions of law 
 which are correct in themselves, but are not 
 applicable to the evidence, where such in- 
 structions have a tendency to make an 
 erroneous impression upon the jury and mis- 
 lead them: Moffltt v. Cressler, 8-133; Vari 
 Tuyl V. Quintan, 45-459 ; Williamson v. Red- 
 dish, 45-550. 
 
 90. Contradictory: It is error suiHcient 
 to waiTant a reversal that instructions lay 
 down two contradictory rules for the guid- 
 ance of the jury, if it appears that they may 
 have adopted the erroneous instead of the 
 correct one : State v. Hartzell, 58-520. 
 
 9 1 . Conflict in the instructions is a ground 
 for reversal on appeal : Moore v. Des Moines 
 &Ft. D. R. Co., 69-491. 
 
 92. Misleading: An instruction embrac- 
 ing a correct legal principle may be mislead- 
 ing as applied to the particular facts of the 
 case, and therefore erroneous : State v. Ben- 
 ham, 23-154. 
 
 93. An instruction embracing a correct 
 legal principle, but couched in such language 
 as to be likely to mislead the jury, may prop- 
 erly be refused: Perry v. Duhuque South- 
 western R. Co., 36-103. 
 
 94. Where the instructions are such that 
 the jury have been probably misled and 
 confused by the language used, a new trial 
 should be gi-anted, even though the law may 
 Lave been correctly stated in some of the 
 instructions: Preston v. Dubuque & P. R. 
 Co., 11-15. 
 
 95. In a particular case, held, that an in- 
 struction refeiTing to a matter which, owing 
 to the circumstances of the case, was not 
 proper for the jury to consider, was mislead- 
 ing and therefore erroneous : Dolan v. Jean, 
 35-413. 
 
 96. Where an instruction is misleading by 
 reason of being susceptible of an erroneous 
 construction, although technically correct, 
 it may be a ground for reversal: McCracken 
 V. Webb, 36-551. 
 
 97. An instruction which is inapplicable 
 to the testimony, and has a tendency to mis- 
 lead the jury, will constitute error: Ault- 
 man v. Lee, 43-404. 
 
 98. Giving an instruction so framed that 
 it might have misled the jury as to the 
 amount of proof necessary on the part 
 of defendant, held sufifioient eiTor to war- 
 
 rant a reversal: Williamson v. Reddish, 45- 
 550. 
 
 99. An instruction collecting together vari- 
 ous things which, if true, would exonerate 
 defendant from liability, held to be mislead- 
 ing in that it tended to lead the jury to be- 
 lieve that all such circumstances must concur 
 to esonerate defendant, whereas a portion of 
 them only ffere suflELcient, as a matter of 
 law, for that purpose : Van Tuyl v. Quinton, 
 45-459. 
 
 100. An instruction directingthe jury that 
 if they find a certain fact to be true to return 
 a verdict for plaintiff, when the right of re- 
 covery depends upon other facts in connec- 
 tion with the fact thus mentioned, is mis- 
 leading : McKern v. Albia, 69-447. 
 
 101. An instruction directing the jury as 
 to the effect of a particular fact, which fact 
 is in itself not essential as to the rights of 
 either party, is misleading: Campbell v. 
 Wheeler, 69-588. 
 
 102. An instruction to the effect that a bill 
 of sale was invalid unless possession of the 
 property passed thereunder, held misleading, 
 as no explanation was made as to the effect 
 of notice to other persons of the transaction: 
 Tiffany v. Anderson, 55-405. 
 
 103. Where an instruction was such that 
 it authorized the jury, if they found a certain 
 fact, to consider it only in mitigation and al- 
 low some damage, when the fact itself was 
 such as to entirely preclude plaintiff's recov- 
 ery, held error sufficient to require a reversal : 
 Cfuptill V. Verbach, 58-98. 
 
 104. A particular instruction excluding 
 fi'om the jury any statements of counsel as 
 to the isshes on a former trial, held not errone- 
 ous as tending to exclude the pleadings on the 
 former trial: Wormley v. Hamburg, 46-144. 
 
 105. An instruction to the jury that if they 
 believed plaintiff had testified falsely to any 
 material fact, they would be authorized to 
 reject all his testimony unless corroborated 
 by other credible evidence, held not mislead- 
 ing: Brown v. Chicago, R. J. & P. R. Co., 
 51-235. 
 
 108. A mere mistake of the court in direct- 
 ing the jury that, if their verdict was for 
 plaintiff, the form should be "that the jury 
 find for the defendants," etc., held not such 
 error as likely to mislead the jm-y : Eldredge 
 V. Bell, 64^125. 
 
INSTRUCTIONS, III, a, b. 
 
 89 : 
 
 Effect of error. — Stating the issues. 
 
 107. The fact that the court in stating the 
 issues to the jury confounds the action of 
 trespass with trespass on the case, is not such 
 an error as can be made a ground for re- 
 versal : Brown v. Hendrickson, 69-749. 
 
 108. Not prejudicial: An instruction 
 which as to an abstract proposition may not 
 be correct may yet be, as applied to the facts 
 of the case, -without prejudice: Keyser v. 
 Kansas City, St J. & C. B. R. Co., 5&-440. 
 
 109. An instruction which might be erro- 
 neous as a general proposition, but is not 
 misleading under the evidence, will not be 
 ground for a reversal: Ross v. DatKnport, 
 66-548. 
 
 Further as to error without prejudice in 
 the giving of instructions, see Appeals, 
 gg 431^53. 
 
 110. Error of which party cannot com- 
 plain: A party cannot complain of the giv- 
 ing of instructions which are of the same 
 purport, though not identical with those 
 asked by himself: Smith v. Sioti.v City & P. 
 B. Co., 38-173. 
 
 111. Where an instruction given is erro- 
 neous on a particular point, but as to that 
 point the instructions asked by the party 
 complaining contain the same error, the 
 party cannot take advantage of such error 
 in the instruction given: Welter v. Hawes, 
 49-45; Campbell v. Ormsby, 65-51S. 
 
 112. Where instructions follow the theory 
 of the case as set forth in the petition, plaint- 
 iff cannot complain of error in the instruc- 
 tions as to the basis of recovery : Briscoe v. 
 Reynolds, 51-673. 
 
 113. General directions to jury: A state- 
 ment by the judge to the jury, that a case 
 having been twice tried, it was important 
 that they should agree if they could satisfy 
 their minds as to the right of the case, held 
 not improper: Mies v. Sprague, 13-198. 
 
 114. It is not error to caution the jury, 
 after they have been out for some time with- 
 out agreement, that each juror should lay 
 aside pride of opinion and examine their dif- 
 ferences in a spirit of fairness and candor, 
 and state to them that a new trial would in- 
 volve large expense: Frandsen v. Chicago, 
 B.I.&P.R. Co., 36-373. 
 
 115. The courtmay properly instruct upon 
 a pomt not suggested by counsel for either 
 party, and' intimate to counsel his intention 
 
 Vol. 1 — 57 
 
 of instructing on such point, and his desire 
 to have the point discussed, even though 
 thereby he discloses to the counsel of one 
 party an error which such counsel might 
 have overlooked, and which would have 
 been fatal to his case : Hinkle v. Davenport, 
 38-855. 
 
 b. Stating the issues. 
 
 116. By the court: It is the province of 
 the court, and not that of the jury, to deter- 
 mine the nature of the action, or what issues 
 are made by the pleadings: McKinney v. 
 Hartman, 4^154 ; Beebe v. Stutsman, 5-271 ; 
 Potter V. Wooster, 10-334; Reid v. Mason, 
 14-541; Pharo v. Johnson, 15-560; ifejnp- 
 stead V. Des Moines, 52-303. 
 
 117. Duty to state the issues: In a 
 proper and necessary case the court is to in- 
 form the jury specifically as to the issues in- 
 volved and not leave it to them to determine 
 such issues ; but when the necessity for such 
 a case does not exist, no such direction can 
 be asked as a matter of right: Fannon v. 
 RoUnson, 10-372. 
 
 118. It is the province and duty of the 
 court to determine what are the issues in the 
 pleadings, and this cannot be left to the jury : 
 Wostv. Moody, 33-137. 
 
 119. It is the duty of the court to instruct 
 as to the issues, and state directly and plainly 
 the claims made by the parties: lAttle v. 
 McGuire, 43-447. 
 
 120. The court should make a full state- 
 ment of the issues to the jury: Hollis v. 
 State Ins. Co., 65-454. 
 
 121. Failure of the court to state fully to 
 the jury the material issues made by the 
 pleadings will constitute error: Potter v. 
 Chicago, R. I. & P. R. Co., 46-399. 
 
 122. The fact that an issue is ignored in 
 the instructions given to the jury will con- 
 stitute reversible error: Hill v. Aultmann, 
 68-630. 
 
 123. In a particular case, held, that there 
 was no prejudicial error in referring in an 
 instruction to the matter charged in the 
 petition, without specifying also an amend- 
 ment to the petition: Fiihs v. Osweiler, 59- 
 481. 
 
 1 24. Instructions in a particular case, held 
 sufBciently to present to the jury the issues 
 before them, although the fact that defend- 
 
S98 
 
 INSTRUCTIONS, III, b; IV, a. 
 
 Stating the issues. — Pertinency to issues and evidence. 
 
 ant denied the averment of plaintiffs peti- 
 tion was not stated in express terms ; Ounael 
 V. McDonnell, 67-531, 
 
 125. Error in stating: When the court, 
 ia stating the issues to the jury, stated that 
 tlie amount claimed by plaintiff was a certain 
 amount, basing the statement upon the peti- 
 tion and the amended petition, whereas the 
 amount stated in the amended petition was 
 inclusive and not additional to that stated in 
 the original petition, held, that such state- 
 ment constituted error, but whether, under 
 the particular circumstances, it was error 
 without prejudice was not determined : Staf- 
 ford V. OsJcaloosa, 57-748. 
 
 126. Where the petition charged negli- 
 gence on the part of an engineer in backing 
 up his train too fast, and an instruction stat- 
 ing such cause of complaint referred to this 
 allegation as being that " the party in charge 
 of the engin% moved the train at an unusu- 
 ally fast rate of speed," held, that the in- 
 struction was not erroneous in not jjroperly 
 stating the plaintiff's cause of action : Beems 
 V. Chicago, R. I. <& P. R. Co., 58-150. 
 
 127. Matters not in issue: It is not error 
 in the court to fail to state to the jury the 
 effect of impeaching evidence as to the cred- 
 ibility of a witness where no instruction on 
 that question is asked. The impeachment 
 of a witness does not constitute a defense, 
 but merely prelates to the credibility to be 
 given to the testimony, and the failure to in- 
 struct as to the effect of an effort to impeach 
 does not constitute a failure to state the 
 .issues in the case: State v. Kirhpatrick, 63-554. 
 
 128. Matters of dispute arising upon the 
 flaw or the evidence are not issues which the 
 court ought specifically to present to the 
 jury:: State v. Nadal, 69-478. 
 
 129. Failure to give an instruction with 
 reference to immaterial questions on matters 
 which, though pleaded by way of defense, 
 do not constitute a defense in law, will not 
 be deemed prejudicial to the party seeking 
 to raise the immaterial question or plead the 
 incompetent jnatter: Tiiclc v. Singer Mfg. 
 Co., 67-576. 
 
 130. An instruction suggesting an issue 
 not raised by the pleadings is erroneous : Ben- 
 ton V. Chicago, R. I. & P. R. Co., 55-496. 
 
 131. Issues not supported by evidence': 
 Failure to state. to, the jury an issue raised by 
 
 the pleadings will not constitute error where 
 there was no evidence for the party intro- 
 duced upon such issue: Van Vechten v. 
 Smith, 59-173. 
 
 132. It is not necessary "for the court to 
 state to the jury an issue involving matters 
 as to which there is no conflict in the evi- 
 dsnce: Kimball v. Monarch Ins. Co., 10 . 
 
 133. Not sufficiently specific: If the is- 
 sues are stated in the instructions, a failure 
 to state them more specifically will not be 
 reversible error where more specific instruc- 
 tions are not asked by the opposite pai-ty: 
 Dixon t'. Stewart, 33-135. 
 
 134. Issues withdrawn : Where the court 
 declines to submit an issue to the jury upon 
 which evidence has been introduced, the evi- 
 dence bearing on that issue should be taken 
 from the jury, and it is error in such case to 
 instruct them that the facts concerning that 
 matter may properly be considered in deter- 
 mining the issues that are submitted: Ham- 
 mer v. Chicago. R. I. & P. R. Co., 70 . 
 
 135. Reference t» pleadings: It is im- 
 proper to direct the jury to the pleadings for 
 the pui-pose of ascertaining what the issues 
 are : Fitzgerald v. McCarty, 55-703 ; Porter 
 V. Knight, 63-365; Bryan v. Chicago, R. I. 
 & P. R. Co., 63-464; Hollis v. State Ins. Co., 
 6.5-454 ; Lindsay v. Des Moines, 68-368. 
 
 136. It is not error to refer the jury to the 
 pleading to ascertain the nanative of the 
 facts therein contained : Marion v. Chicago, 
 R. I. & P. R. Co., 64-568. 
 
 137. It is not improper to refer the jury to 
 the petition and the amendment thereto for 
 a fuller statement of the several items of the 
 plaintiff's claim for damages: Lanning v. 
 Chicago, B. & Q. R. Co., 68-503. 
 
 IV. Peetinenct to issues and evi- 
 
 dence. 
 
 a. In general. 
 
 138. Must be pertinent to issues in 
 pleadings: It is error to submit to the jury a 
 question not presented by the pleadings: 
 Stein V. Seaton, 51-18; Wliitsett v. Chicago, 
 R. I. & P. R. Co., 67-150. 
 
 139. An instruction to the jury as to 
 liabihty for a cause of injury not alleged in 
 the petition is ground for a reversal: Cressy 
 
 V. Postville, 59-63. 
 
INSTRUCTIONS, IV, a. 
 
 899 
 
 Pertinency to issues and evidence. — In general. 
 
 140. Instructions should not be given upon 
 a matter which is not in issue : Troughear v. 
 Lower Vein Coal Co., 63-576. 
 
 141. It is error to give an instruction con- 
 taining a correct legal proposition which is 
 not applicable to any issue involved in the 
 case: Deppev. Chicago, B. I. & P. R. Co., 
 36-52 ; Roberts v. Richardson, 39-290 ; Sioux 
 City & P. R. Co. V. Walker, 4Sl-%^^■, Wood v. 
 Chicago, M. & St. P. R. Co., 68-491. 
 
 142. Where evidence is admitted without 
 objection upon an issue not raised by the 
 pleadings, the court may properly instruct 
 the jury as to the effect of such evidence. 
 The objection that no such issue is raised in 
 the pleadings comes too late: Collins v. Col- 
 lins, 46-60. 
 
 143. The objection that instructions given 
 pertain to an issue not in the case cannot be 
 considered, if the party objecting has asked 
 instructions upon that issue : Ilahn v. Miller, 
 60-96. 
 
 144. Refusal of instructions not perti- 
 nent: An instruction not pertinent to the 
 pleadings or evidence should be refused al- 
 though containing correct propositions of law : 
 Cutter V. Fanning, 2-580; Gouer v. Dill, 3- 
 337 ; Conger v. Dean, 3-463 ; Oliver v. Depew, 
 14-490; Packer v. Cockayne, 8 G. Gr., Ill; 
 State V. Gibbons, 10-117. 
 
 145. Instructions not supported by evi- 
 dence: It is error to give an instruction on a 
 state of facts not proven, even though the 
 instruction is correct as an abstract proposi- 
 tion of law, if the giving of such instruc- 
 tions may tend to mislead the jury : Moffltt 
 V. Cressler, 8-133; Farr v. Fuller, 8-347. 
 
 146. Where an instruction is based upon a 
 theory wholly unsupported by the evidence 
 and calculated to mislead the jury, the giv- 
 ing thereof wUl constitute error : Mimdhenk 
 V. Central Iowa R. Co., 57-718; Murphy v. 
 Chicago, R. I. &P. R. Co., 38-539. 
 
 147. An instruction which though correct 
 is not adapted to the facts of the case upon 
 any hypothesis which the evidence tends to 
 establish should not be given, especially when 
 the jury is properly instructed otherwise: 
 Tisdale v. Connecticut Mut. L. Ins. Co.. 
 28-13. 
 
 148. Refusal of an instruction as to a state 
 of facts finding no support in the evidence 
 will not constitute error, though the instruc- 
 
 tion be abstractly correct: Messerv. Regin- 
 nitter, 33-313; Cross v. Garrett, 35-480. 
 
 149. An instruction should be refused 
 where there is no evidence to which it is ap- 
 plicable: State V. Corrette, 13-358; Cobb v. 
 Illinois Cent. R. Co., 38-801. 
 
 1.50. A court cannot be required to give an 
 instruction containing an abstract proposi- 
 tion which is correct in itself, but which is 
 not legitimately connected with the evidence 
 in the case: Tryon v. Oxley, 3 G. Gr., 389; 
 Hall V. Hunter, 4 G. Gr., 539 ; Trustees of 
 Iowa College v. Hill, 13-463. 
 
 151. An instruction correct in law, but 
 based upon a state of facts as to which there 
 is no evidence, should not be given : McCra- 
 mer v. Thompson, 31-244; First Nat. Bank 
 V. Hurford, 29-579 ; Byington v. McCadden, 
 34-316; Case v. Illinois Cent. R. Co., 38-581; 
 Murphy v. Chicago, R. I. & P. R. Co., 38- 
 539; Leffingwell v. Gitchrl,st, 40-416; Howell 
 V. Price, 40-548 ; State v. Fraunburg, 40-555 ; 
 O'Laughlin v. Dubuque, 43-539; Henderson 
 V. Chicago, R. I. & P. R. Co., 43-630; State 
 V. Osborne, 45-425; Clark v. Ralls, 58-201; 
 Hess V. Wilcox, 58-380 ; Hull v. Wolff, 61- 
 559; Snyder v. Kurtz, 61-593; Johnson v. 
 Miller, 63-539 ; State v. Archer, 69-420. 
 
 152. It is error to submit a mateiial ques- 
 tion of fact to the jury upon which there is 
 no evidence, even though the rule of law as 
 to such question of fact be properly stated : 
 Bank of Monroe v. Anderson Bros. Mining 
 & R. Co., 65-692; Wliitsett v. Chicago, R. I. 
 & P. R. Co., 67-150; 'White v. Spangler, 68- 
 323; State v. Myer, 69-148; Johnson v. Mil- 
 ler, 69-563. 
 
 1 53. EiTor in giving an instruction which 
 states a correct proposition of law, but is not 
 founded upon anything appearing in the evi- 
 dence, will not be considered to be without 
 prejudice, where all of the instructions given 
 are of that character, and fail to show their 
 applicability to the case or the evidence be- 
 fore the jury : State v. Thompson, 45-414. 
 
 154. An instruction cannot be held erro- 
 neously refused when there is nothing in the 
 record to indicate what testimony was before 
 the jury, as the refusal may have been justi- 
 fied on the ground of inapplicability : Little 
 V. Martin, 38-558. 
 
 155. It is error to direct the attention of 
 the jury to matters as to which there is no 
 
900 
 
 INSTRUCTIONS, IV, a, b. 
 
 Pertinency in general. — As to questions of fact. 
 
 evidence before them : Allender v. Chicago, 
 B. I. &P. B. Co., 37-264. 
 
 156. The jury cannot be required to pass 
 upon the efifect of a fact as to which there is 
 no evidence : Stier v. Oskaloosa, 41-353'. 
 
 157. It is error to give an instruction based 
 upon facts as to which there is no evidence, 
 assuming to the jury thereby that there is 
 such evidence, the sufficiency of which is left 
 for them to pass upon : Moorehead v. Hyde, 
 38-383. 
 
 158. An instruction assuming that the jury 
 may find a fact as to which there is no evi- 
 dence whatever is erroneous : Hand v. Lang- 
 land, 67-185. 
 
 159. An instruction directing the jury that 
 they may allow damages as to which there 
 is no evidence is erroneous : Reed v. Chicago, 
 R.I. &P. R. Co., 57-33. 
 
 160. "Where there is no evidence whatever 
 tending to show the amount of a particular 
 item of damage, it is error to authorize the 
 jury to allow damages for such item. So 
 held as to expenses incuiTed for medical 
 treatment in case of personal injury ; Staf- 
 ford V. Oskaloosa, 57-748. 
 
 161. Held, that it was error to instruct the 
 jury that they might aUow for loss of time 
 and expenses of medicine and nui-sing in an 
 action for personal injuries, where there was 
 was no allegation in the pleadings as to loss 
 of time and no evidence of expense : Gardner 
 V. Burlington, C. B. AN. B. Co., 68-588. 
 
 162. It is improper to leave to the jury the 
 determination of damages, based upon the em- 
 ployment of counsel, where there is no evi- 
 dence as to the amount of counsel fees: 
 Parkhurst V. Masteller, 57-474. 
 
 163. When there is some evidence upon 
 the point, an instruction which is applicable 
 to that point and correct in law should be 
 given without regard to the weight of such 
 evidence : De Camp v. Mississippi & M. B. 
 Co., 12-348. 
 
 164. The statement of an abstract propo- 
 sition not inherently erroneous and not pur- 
 porting to relate to the evidence will not 
 require a reversal merely on the ground that 
 there is no evidence to which it is applicable : 
 Kearney v. Fitzgerald, 43-580. 
 
 165. An instruction embodying a correct 
 presentation of the law, which may have 
 been given to meet positions taien in argu- 
 
 ment, will not be ground for reversal, al- 
 though not applicable to the evidence, if 
 not of such nature as to mislead the jui-y: 
 Hall V. Stewart, 58-681. 
 
 166. Where there is evidence introduced 
 relating to a particular matter, the court will 
 be justified in instructing the jury in regard 
 to the law pertaining to such matter, even 
 though the evidence is not such that the 
 party introducing it could properly claim 
 anything therefrom, if there appears to be any 
 danger tliat the jury may be misled by such 
 evidence : Walker v. Camp, 69-741. 
 
 107. A party who has asked instructions 
 upon a particular point cannot afterwards 
 complain of instructions given by the court 
 upon that point, on the ground that there is 
 no evidence whatever to support the instruc- 
 tions : Spears v. Mt. Ayr, 66-731. 
 
 b. As to questions of fact. 
 
 168. Matters of law and not of fact: The 
 
 instructions must state rules of law only, 
 leaving to the jury the decision of the facts 
 and the application of the rules of law given 
 them by the court: Muldowney v. Illinois 
 Cent. B. Co., 33-176. 
 
 1C9. The court cannot instruct the jury 
 tipon questions of fact : Frederick v. Gaston, 
 1 G. Gr., 401. 
 
 170. The sufficiency or insufficiency of tes- 
 timony to establish a given fact or determine 
 an issue cannot be passed upon by the court, 
 but must be left to the jury: Franks v. 
 State, 1 G. Gr., 541. 
 
 171. It is error to give an instruction 
 which, though stating a correct proposition 
 of law, assumes facts to be true which are in 
 issue : human v. Kerr's Adni'r, 4 G. Gr., 159. 
 
 172. It is error to charge the jury as to 
 the weight and sufficiency of the testimony : 
 Houston V. State, 4 G. Gr., 437. 
 
 173. The court may -explain to the jury 
 the legal effect of facts, but the facts them- 
 selves must be determined exclusively by the 
 jury: Ibid. 
 
 174. An instruction which assumes as true 
 the very fact in controversy, and bases 
 thereon the relative duties and liabilities of 
 the parties, should be refused : Buss v. Steam- 
 boat War Eagle, 14^863. 
 
 175. It is error to assume a fact as proven 
 
INSTRUCTIONS, IV, b. 
 
 901 
 
 As to questions of fact. 
 
 wliich is properly for the determination of 
 the jury : State v. Jones, 33-9. 
 
 176. An instruction based upon an as- 
 sumption of fact is erroneous: Walters v. 
 Chicago, R. I. & P. B. Co., 41-71. 
 
 177. The court would not be justified in 
 giving an instruction which assumes facts as 
 tiTie which are for the jury to determine: 
 Buter V. Foy, 46-133. 
 
 178. An instruction should not assume 
 facts as not proven of which there is some 
 evidence: Napper v. Young, 12-450. 
 
 179. It is error to assume as true in an in- 
 struction a fact which is in issue, and upon 
 which the evidence is conflicting: Case v. 
 Burrows, 52-146; Bryan v. Brazil, 52-350; 
 Bowersock v. Winers, 60-84. 
 
 180. It is error to give an instruction based 
 upon an assumption as to a fact which is in 
 issue and upon which there is a conflict in 
 the evidence, and such an instruction will 
 be considered prejudicial : Boach v. Parcell, 
 61-98. 
 
 181. A fact should not be assumed to be 
 true of which there is no proof: Howes v. 
 Carver, 3-357. 
 
 182. However slight the eifect of testi- 
 mony, and however little the consideration 
 to which it is entitled from a jury, still its 
 weight is to be determined by them, and 
 should not be determined beforehand by the 
 court in an instruction: Miller v. Mutual 
 Benefit L. Ins. Co., 31-216. 
 
 183. Remarks made in the presence of the 
 jury, based upon an assumption of the facts 
 upon which it is the province of the jury to 
 pass, and which would be eiToneous if con- 
 tained in an instruction, vrill entitle defend- 
 ant to a new trial : State v. Stowell, 60-535. 
 
 184. An instruction that if the jury find 
 the testimony of plaintiff to be the only pos- 
 itive evidence in support of material allega- 
 tions, and that it is contradicted in all 
 material points by an unimpeached witness, 
 they must find for defendant, held error, as 
 taking from the jury the province of weigh- 
 ing the entire evidence : Delvee v. Boardman, 
 20-446. 
 
 185. In an action for injuries from defend- 
 ant's negligence in operating its railroad, 
 where it appeared that the injured person 
 was first seen at a point beyond the coal 
 platform where it was claimed that he was 
 
 injured, but it did not appear whether he 
 had been struck by the platform or not, held, 
 that it was error to refer to such platform as 
 that "by which deceased was injured:" 
 Perigo v. Chicago, R. I. & P. R. Co., 55- 
 336. 
 
 180. In an action to recover for services 
 rendered under implied contract, the court 
 instructed that the acceptance of the services 
 by defendant would render him liable, and 
 directed the jury to apply this rule to the 
 case ; held, that the instruction was mislead- 
 ing in authorizing the jury to infer that the 
 court regarded the defendant as liable under 
 the rule, and that the jury should have been 
 instructed that, if they found that defendant 
 had accepted the services, he was liable: 
 Bichardson v. JSoyt, 60-68. 
 
 187. An instruction which contained the 
 words '• the other ingredients being proven," 
 held, under a fair construction, not to be an 
 assumption of the fact that the other ingre- 
 dients had been established: State v. Tarr, 
 38-397. 
 
 188. The assumption in an instruction that 
 a certain fact is conceded will not be pre- 
 sumed to be erroneous, it not appearing by 
 the record but that such concession or ad- 
 mission was made in some proper manner : 
 Walsh V. ^tna L. Ins. Co.; 30-133. 
 
 189. It is not error to base the charge on 
 facts as to which all the witnesses agree, and 
 there is no room for controversy: Russ v. 
 Steamboat War Eagle, 14^363. 
 
 190. Where a fact is fully proven without 
 conflict of evidence, it is not error to assume 
 its existence in an instruction: Hughes v. 
 Wlonty, 34-499 ; State v. Meshek, 61-316. 
 
 191. If a material fact is admitted or 
 proved without conflict in the evidence, no 
 prejudice can result from the court stating 
 the fact as established, or that it should be 
 regarded as established : Wood v. Porter, 56- 
 161. 
 
 192. Where there is no controversy as to 
 the facts, especially where the evidence is 
 documentary, the court may direct the jury 
 as to the application of such evidence to the 
 law that must govern the case: Thorp v. 
 C'rai0, 10-461. 
 
 193. Stating to the jury the law as appli- 
 cable to a particular state of facts vsrill not 
 necessai'ily be erroneous, as an assumption 
 
902 
 
 INSTEUCTIONS, IV, c. 
 
 As to effect of written instruments, records, etc. 
 
 that such facts are proven : State v. Zeibart, 
 40-169. 
 
 194. Instructions with reference to certain 
 facts which the evidence tends to px-ove, 
 stating what the legal effect of such facts 
 will be if found by the jury, may be proper : 
 Pritehett v. Overman, 3 G. Gr., 531. 
 
 195. The grouping together in one instruc- 
 tion of legitimate facts which the evidence 
 tends to prove, and charging that such facts 
 constitute circumstantial evidence, is not 
 necessarily erroneous: State v. Carnahan, 
 17-256. 
 
 196. It is proper for the court to announce 
 to the jury rules sanctioned by reason and 
 experience to enable them rightly to weigh 
 the evidence submitted in the case. Thus 
 the jury may be told that a writing is en- 
 titled to more w^eight than statements 
 founded merely on memory ; and that expert 
 testimony is of the lowest order and most 
 unsatisfactory character: Whitaker v. Par- 
 ker, 43-585. 
 
 197. It is not improper for the court to ad- 
 vise the jury as to the character of the evi- 
 dence introduced on the trial and the relative 
 weight of different kinds of evidence: Su- 
 ford V. McGetcMe, 60-208. 
 
 As to instructions on questions of fact in 
 criminal cases, see, further, Criminai. Law, 
 §g 1196-1200. 
 
 c. A.S to effect of written instruments, 
 records, etc. 
 
 198. The conslrnction of a written in- 
 sti'unient is for the court: Lucas v. Snyder, 
 3 G. Gr., 499; Durham v. Daniels, 2 G. Gr., 
 518; Hendridkv. Kellogg, 3 G. Gr., 315. 
 
 199. The court may charge the jury as to 
 whether or not a writing introduced in evi- 
 dence is a contract : Eyser v. Weissgerber, 3- 
 463. 
 
 200. The question whether certain letters 
 introduced in evidence constituted a contract 
 is to be determined by the court: Lea v. 
 Henry, 56-663. 
 
 201. Effect of Tvritten instrnment: The 
 legal effect of an instrument is to be deter- 
 mined by the court and not by the jury, and 
 if such instrument is conclusive evidence of 
 a fact, it is error to leave that fact to the 
 jury for determination: Chandler v. Keiler, 
 44^871. 
 
 202. It is the duty of the court to construe 
 a contract, and it is error to leave its con- 
 struction to the jury : Kilboume v. Jennings, 
 40-473; Vaughn v. Smith, 58-558. 
 
 203. Where the evidence is undisputed it 
 is for the court to determine whether a writ- 
 ten instrument has been duly executed or not 
 so as to effect the purposes for which it was 
 intended : Snyder v. Kurtz, 61-598. 
 
 204. Where a contract is in writing the 
 court should interpret it and not submit to 
 the jury the question of its meaning as de- 
 pendent upon parol evidence which is not 
 admissible for the purpose of varying it : Daly 
 V. W. W. Kimball Co., 67-132. 
 
 205. Where a question arises as tothecon- 
 straction of a written contract, it is for the 
 court and not for the jury to construe it; but 
 wliere the question in controversy is as to 
 whether the contract has been lawfully per- 
 formed, and that question depends upon ex- 
 trinsic evidence, the weight and effect of the 
 evidence is for the jury : Fairbanks v. Jacobs, 
 69-365. 
 
 206. Where the court is unable to deter- 
 mine the date of an instrument owing to the 
 manner in wliich the figures are written, it 
 may submit the question to the jury; Par- 
 tridge V. Patterson, 6-514. 
 
 207. Where letters are plain in their lan- 
 guage and require no interpretation, it is not 
 necessary for the court to put a construction 
 upon them, but they may be left to the jury 
 as other evidence; Avery v. Chapman, 63- 
 144. 
 
 208. Where the objects of an association 
 were to be determined from the constitution 
 and by-laws, held, that it was for the court 
 to construe such ijjstiuments, and the ques- 
 tion as to the purposes of the association 
 should not have been submitted to the jury : 
 Johnson v. Miller, 68-539. 
 
 209. Ordinances: The construction of an 
 ordinance of a city should be made by the 
 court and not left to the jury : Ingram v. 
 Chicago, D. & M. R. Co., 38-669. 
 
 210. Record of road: It is the province of 
 the court to determine the sufficiency of the 
 records to sustain a road, and an instruction 
 may properly be given that the records and 
 papers offered in evidence are sufficient 
 proof of the establishment of a public high- 
 way ; State v. Prine, 35-381. ' 
 
INSTRUCTIONS, IV, d. 
 
 90S 
 
 Construction ; conflicting instructions. 
 
 211. Title to real estate: The court may- 
 instruct the jury as to who holds title to 
 real estate as shown by deeds introduced, or 
 when the question of title is one of law upon 
 the testimony : State v. Delong, 12-453. 
 
 212. Issues in former judgment: It is the 
 province of the court and not the jury to de- 
 termine what issues were involved in a case 
 which is pleaded as a former adjudication: 
 Neumeister v. Dubuque, 47-465. 
 
 213. Or where it is claimed that the issues 
 in another case were identical with those in 
 the pending action : Hempstead v. Des Moines, 
 52-303. 
 
 d. Construction,' conflicting instruc- 
 tions. 
 
 214. All the instructions given should be 
 read and construed together for the purpose 
 of determining the correctness of any part of 
 the charge : Burrows v. Lehndorff, 8-86, 104 ; 
 Brown v. Bridges, 31-188; State v. Malay, 
 44-104; Locke v. Sioux City cfc P. R. Co., 46- 
 109, 114; State V. Stanley, 48-321; Albertson 
 V. Keokuk & D. M. R. Co., 48-292; State v. 
 Golden, 49-48; Beazan v. Mason City, 58- 
 338; Gronanv. Kiikkuck, 59-18. 
 
 215. All instructions bearing upon the 
 same branch of the case should be read and 
 construed together: Albertson v. Keokuk & 
 D. M. R. Co., 48-292. 
 
 21fi. Where the court, in an instruction 
 consisting of more than one paragraph, 
 states the law applicable to a state of facts 
 which the evidence tends to prove, the whole 
 instruction must be considered together in 
 determining its meaning: Carter v. Monti- 
 cello, 68-178. 
 
 217. Cireuinst.nnces of the c.ise: Instruc- 
 tions must always be considered with refer- 
 ence to the circumstances of the case in 
 which they are given: State v. Johnson, 
 8-5S5. 
 
 218. Not erroneous as qualified: Even 
 though the instruction be abstractly errone- 
 ous or capable of misconception, yet if, when 
 taken with the other instructions and in the 
 connection in which it was given, it could 
 not have been misunderstood, the giving of 
 it will not constitute ground for reversal: 
 Ferguson v. Beadle, 30-477. 
 
 219. Even though one clause of an instruc- 
 
 tion be apparently erroneous, yet if it is so 
 clearly qualified by what follows that from 
 the entire instruction the jury cannot have 
 failed to receive a correct impression, the in- 
 struction will not be erroneous: Dixon v. 
 Stewart, 33-125. 
 
 220. If, as a whole, the instructions con- 
 tain a correct exposition of the law, the su- 
 preme court will not ordinarily interfere, 
 even though, if separately considered, they 
 might be objectionable. Where, however,- 
 they are so framed as to present a conflict or 
 tend to mislead the jury, that fact will con- 
 stitute error : Brown v. Bridges, 31-188. 
 
 221. Although an instruction, if standing 
 alone, might be susceptible of an interpre- 
 tation which would make it erroneous, yet 
 if, when construed with other instructions, 
 it cannot be reasonably understood in such 
 erroneous sense, the giving of it will not be 
 ground for reversal: Parker v. Dubuque 
 Southwestern R. Co., 34-399. 
 
 222. The charge of the court must be taken 
 together, and if, when so considered, it fairly 
 presents the law, and is not liable to misap- 
 prehension nor calculated to mislead, the 
 judgment should not be reversed simply 
 because some one of the instructions may 
 lay down the law without sufficient qualifi- 
 cation : Rice v. Des Moines, 40-638. 
 
 223. If, as a whole, the instructions con- 
 tain a correct exposition of the law, the case 
 will not be reversed, although, separately 
 considered, theymay be objectionable: Green 
 V. Cochran, 43-544. 
 
 224. It is not proper to select out single 
 sentences or phrases from the instructions §s 
 a subject for criticism as distinct from the 
 entire instructions : State v. Pierce, 65-85. 
 
 22.5. Instructions must be regarded as a 
 whole, and a defect in one may be cured by 
 other portions of the charge : Hamilton v. 
 State Bank, 22-806. 
 
 226. Though one of the instructions is too 
 broad in its statements, if it is pi-operly lim- 
 ited by a subsequent one the charge will not 
 be considered erroneous : Rttble v. McDonald, 
 18-493. 
 
 227. An instruction cannot be complained 
 of for not containing limitations or qualifica- 
 tions given in another instruction: Stier v. 
 Oskaloosa, 41-353. 
 
 228. Where an instruction presents a cor- 
 
904 
 
 INSTRUCTIONS, IV, d, e. 
 
 Conflieting. — Duty of jury to follow. 
 
 reot proposition of law, but one which needs 
 to be explained, modified and corrected by 
 some other proposition, it cannot ordinarily 
 be presumed that the jury is misled if the 
 other proposition is expressed in a different 
 insti-uotion : Lombard v. Chicago, R. I. & P. 
 R. Co., 47-494. 
 
 229. The omission in one instruction of 
 a proper quahfication which is given in 
 another may be sufficient to prevent the in- 
 structions from being erroneous: Allen v. 
 Burlington, C. R. & N. R. Co., 57-633. 
 
 230. It is not usual, and in ordinary cases 
 not possible, to state in a single instruction 
 all the propositions to which the attention of 
 the jury should be directed, and if the in- 
 structions taken together present a correct 
 statement of the law applicable to the case, 
 there will be no ground of reversal : Funston 
 V. Chicago, R. I. & P. R. Co., 61-452. 
 
 231. Conflieting instructions: It is error 
 to give instructions which are conflicting: 
 Hart V. Chicago, R. I. & P. R. Co., 56-166; 
 Brown v. Bridges, 31-138. 
 
 232. Where instructions are inharmonious 
 and misleading and directly in conflict, the 
 judgment will be i-eversed on appeal : Van- 
 slyck V. Mills, 34-375. 
 
 233. Where instructions are contradictory 
 it cannot be said that the error of one is cured 
 by the giving of the other. It cannot be de- 
 termined in such case which one of the in- 
 structions the jury followed, and it cannot 
 be said that no prejudice resulted from the 
 error: Conway v. Illinois Cent. R. Co., 50- 
 465. 
 
 234. Where the instructions are contradic- 
 tory and it is impossible to tell which the 
 jury followed, such conflict will constitute 
 error and warrant a reversal : Hawes v. Bur- 
 lington, C. R. & N. R. Co., 64-315. 
 
 235. Common understanding': Where an 
 instruction, taken in connection with others 
 given, states the law in such a manner as to 
 enable a person of common understanding 
 to know what is intended, it is suflioient: 
 Smothers v. Hanks, 34-286. 
 
 236. A verbal inaccuracy in an instruction 
 will not be ground for reversal if it is not 
 such as to tend to mislead or confuse the jury, 
 and the meaning is plain to the common 
 understanding: Harger v. Spofford, 46-11, 
 
 237. It is not necessary, in an instruction, 
 
 for the court to define words that may be 
 understood by men of ordinary intelligence: 
 Rogers v. Millard, 44r466. 
 
 238. Sense intended: Where a word is 
 used in an instruction which might be taken 
 in different senses, and the jury follows the 
 instruction in the sense in which it was in- 
 tended, a judgment on the verdict will not be 
 reversed because the jury might have fol- 
 lowed it in the sense in which it was not in- 
 tended : Parhhurst v. Masteller, 57-474. 
 
 239. Ordinary meaning: It is not proper 
 to seek after some far-fetched and unusual 
 signification of the language of an instruc- 
 tion and base a reversal ther-eon. The lan- 
 guage should be given its usual and ordinary 
 meaning : State v. Huxford, 47-16. 
 
 240. The language of an instruction should 
 receive a reasonable construction in view of 
 all the circumstances, and not a strange or 
 forced one : Davenport v. Cummings, 15-219. 
 
 e. Duty of jury to follow. 
 
 241. Law of the case: The instructions of 
 the court to the jury constitute the law of 
 the case, and must be followed by the jury 
 whether right or wrong : Taylor v. Cook, 14- 
 501 ; Baird v. Chicago, R. I. (& P. R. Co., 
 55-121; Stewart V. Smith, 60-275; Roberts v. 
 Leon Loan, etc., Co., 63-76. 
 
 242. The instructions constitute the law 
 of the case for the jury, and a verdict con- 
 trary to the instructions will be set aside or 
 the judgment reversed without regard to 
 whether the instructions ai-e correct or not : 
 Caffrey v. Groome, 10-548 : Savery v. Busick, 
 11-487 ; Jeivett v. Smart, 11-505 ; Farley v. 
 Budd, 14-289; Porter v. Thompson, 23-391; 
 Beat V. Stone, 22-447 ; Morss v. Johnson, 38- 
 iSO ; Cobb V. Illinois Cent. R. Co., 38-601; 
 Sullivan v. Otis, 39-328 ; Howell v. Snyder, 
 39-610; Peterson v. Ochs, 40-530; Baird v. 
 Chicago, R. I. & P. R. Co., 55-121 ; Furman 
 V. Chicago, R. I. & P. R. Co., 57-42; Musser 
 V. 3Iaynard, 59-11 ; Griffith v. Parton, 59-31 ; 
 Graham v. McGeoch, 61-51; Brovme v. 
 Hickie, 68-330. 
 
 243. The instructions to the jury must be 
 regarded as the law of the case, and if the 
 verdict of the jury is without support in the 
 evidence under the instructions, a new trial 
 should be granted : Button v. Wabash, St. L 
 & P. R. Co., 66-352. 
 
INSTRUCTIONS, IV, f. 
 
 905 
 
 What objections may be raised or errors cured by. 
 
 244. A refusal of the lower court to grant 
 a new trial on that ground will require a re- 
 versal : Nichols v. Chicago, B. I. & P. M. Co., 
 69-154. 
 
 245. Where an instruction states that to 
 entitle a party to recover the jury must find 
 a certain fact, and there is no evidence estab- 
 lishing such fact, the case wUl be reversed 
 although the instruction itself is erroneous, 
 and the fact referred to is not essential to 
 support the verdict : Boimnan v. Brown, 53- 
 437. 
 
 246. It is the duty of the jury to regard the 
 law as laid down by the court, even if it is 
 incorrect ; and where a verdict has been re- 
 turned which is contrary to the instructions 
 given, and a new trial has been granted upon 
 that ground, the supreme court will affirm 
 the order without reviewing the instructions : 
 Boyer v. Riley, 41-13. 
 
 247. It cannot be presumed in favor of the 
 verdict on appeal, that it was rendered upon 
 a theory of the case correct in law, but in 
 coniiict with the instructions given : Mant v. 
 
 'Pmree, 58-579. 
 
 248. While an instruction given is binding 
 on the jury without regard to its correctness, 
 yet it ia not binding upon the court, and the 
 court may, in ruling upon a motion for judg- 
 ment upon a special finding or upon the 
 pleadings, disregard instructions which would 
 have been binding upon the jury, and which 
 it considers erroneous : Baird v. Cliicago, JR. 
 I. & P. B. Co., 61-359 ; Haldane v. Arcadia, 
 70 . 
 
 249. Where a general verdict is set aside 
 because in conflict with an instruction given, 
 it does not follow that the court should ren- 
 der judgment on a special verdict in accord- 
 ance with the law in such instruction. If 
 the instruction is incorrect the court may 
 refuse to render judgment in accordance 
 therewith, and award a new trial : Evans v. 
 St. Paul Harvester Works, 63-204. 
 
 f . What ohjections may he raised or er- 
 rors cured hy instructions. 
 
 250. Defects in pleading: The question as 
 to the sufficiency of a pleading cannot be 
 raised by an instruction : Nollen v. Wisner, 
 11-190; Mclntirev. Mclntire, 48-511; Bush- 
 nell V. Robeson, 63-540. 
 
 And see Pleadings, ggSOo-OlO. 
 
 251. Objections to evidence cannot be 
 first taken by an instruction to the jury. 
 Such evidence should be disregarded : State 
 V. Pratt, 20-367. 
 
 252. It is error to exclude from the jury, 
 by an instruction, evidence which has been 
 admitted without objection : Becker v. Becker, 
 45-239. 
 
 25.3. An objection to evidence, made at the 
 time the evidence is introduced, cannot be 
 raised by objecting to the giving of instruc- 
 tions based on such evidence: Le Grand 
 Quarry Co. v. Reichard, 40-161. 
 
 254. Where a defense in a criminal prose- 
 cution for obstructing a highway rested 
 upon the insufficiency of the record of the 
 establishment of the highway, held, that 
 such objection could be raised by instructions 
 although it might have been interposed to 
 the admission of the record in evidence: 
 State V. Anderson, 89-374. 
 
 And further, see Evidence, gg 1372-1377. 
 
 255. WithUrawiug improper evidence 
 from jury: If the court, by an instruction 
 excludes from the consideration of the jury 
 evidence which has been improperly received, 
 such exclusion of the evidence will be con- 
 sidered as preventing any prejudice which 
 would otherwise result from the admission 
 thereof. It is not to be presumed that the 
 minds of the jurors would become poisoned 
 or prejudiced by the introduction of evidence 
 which the court afterward directs them not 
 to take into consideration: State v. Postle- 
 wait, 14-446. 
 
 256. Wliere the court in its charge to the 
 jury plainly directs them to disregard evi- 
 dence improperly admitted, error in admit- 
 ting the evidence is thereby cured : Cook v. 
 Robinson, 42-474. 
 
 257. Error in admitting evidence as to a 
 matter not in issue by the pleadings is cured 
 by an instruction plainly taking such evi- 
 dence from the jury : Bardwell v. Clare, 47- 
 297. 
 
 258. The prompt exclusion of evidence 
 erroneously admitted wiU correct the error : 
 State V. Davis, 56-203. 
 
 259. By an instruction withdrawing from 
 the jury the consideration of evidence which 
 has been improperly admitted, the error in 
 such admission may be cured : Davis v. Dan- 
 forth, 65-601. 
 
906 
 
 INSURANCE, I, a, b. 
 
 Fire; lightning; tornado.— Insurable interest. — The contract. 
 
 260. Error in refusing, on motion, to strike 
 out improper evidence cannot be cured by an 
 instruction to the jury which correctly states 
 the law of the case : Wieks v. DeWitt, 54^-130. 
 
 2G1. Instructions of the court to the jury 
 to disregard matters which it has improperly 
 allowed to be read to the jury, held, not 
 sufficient in a particular case to cure the 
 error: Martin v. Orndorff, 33-504. 
 
 INSURANCE. 
 
 L FlEE; LIGHTNING; TORNADO. 
 
 a. Insurable interest. 
 
 b. The contract; application and pol- 
 
 icy. 
 
 c. Payment of premiums; cancella- 
 
 tion for non-payment; recovery 
 of unearned premiums. 
 
 d. Assignment and subrogation. 
 
 e. Warranties and representations. 
 
 f. Waiver of breach' of warranty or 
 
 forfeiture. 
 
 g. lyoss; what covered. 
 
 h. Conditions precedent to recovery; 
 
 notice; proof of loss. 
 i. Limitation of action. 
 j. Authority of agents. 
 k. Statutory provisions as to com- 
 panies. 
 II. Life. 
 UI. Accident. 
 
 1. Fike; lighthing; toenado. 
 a. Insurable interest. 
 
 1. Necessary: It is not that wager poli- 
 cies are without consideration or unequal 
 between the parties that they are held void, 
 but because they are contrary to public 
 policy. Therefore if the insured has no in- 
 terest in the property insured, the policy 
 must be held void : Warren v. Davenport F. 
 Ins. Co., 31-464. 
 
 2. What constitutes: But any interest 
 which would be recognized by a court of 
 law or equity is an insurable interest. The 
 term interest as thus used does not neces- 
 sarily imply property : Ibid. 
 
 3. Therefore, held, that a stockholder has 
 such interest in the corporate property as to 
 authorize him to insure the same against any 
 
 loss in so far as the value of his stock might 
 b3 depressed in consequence thereof, or his 
 dividends cut off : Ibid. 
 
 4. To constitute an insurable interest it is 
 not necessary that the pai-ty should have 
 either a legal or an equitable interest in the 
 property insured. Any interest may be in- 
 sured if the peril against which the insurance 
 is made would bring loss upon the insured 
 by its immediate and direct effect : Carter v. 
 Humboldt F. Ins. Co., 12-387. 
 
 6. Therefore, held, that the holder of a 
 mechanic's lien has an insurable interest in 
 the property covered thereby: Ibid.; Stout 
 V. City F. Ins. Co., 13-371. 
 
 6. Possession of property under a subsist- 
 ing executory contract which may result in 
 title or ownership constitutes an insurable in- 
 terest, whether the purchase money is paid 
 or not: Ayres v. Hartford F. Ins. Co., 17- 
 176. 
 
 7. An insurable interest may exist with- 
 out title to or ownership of the property. It 
 may be a special or limited interest, discon- 
 nected from title, lien or possession. If the 
 holder of an interest in property will suffer 
 loss by its destruction, he may indemnify 
 himself therefrom by insurance. Therefore, 
 held, that the husband's interest in the home- 
 stead, the title of which is in the wife, is an 
 insurable interest : MIerrett v. Farmers' Ins. 
 Co., 42-11. 
 
 8. A vendor who has executed a contract 
 to convey but has not yet made a convey- 
 ance retains an insurable interest : Kempton 
 V. State Ins. Co., 63-83. 
 
 9. Question foi- jui-y : The question whether 
 insured has an insurable interest in the prop- 
 erty should be left to be determined as a fact 
 by the jury under proper instructions : Mitch- 
 ell V. Home Ins. Co., 33-431. 
 
 10. Evidence: In a particular case, held, 
 that it was not sufficiently shown that in- 
 sured had an insurable interest in the prop- 
 erty to entitle him to recover: Hansen v. 
 American Ins. Co., 57-741. 
 
 b. The contract; amplication and 
 policy. 
 
 11. Parol: Insurance may be effected by 
 a parol contract : Revere F. Ins. Co. v. Cham- 
 berlin, 56-508. 
 
INStniANCE, I, b. 
 
 907 
 
 The contract ; application and policy. 
 
 12. Where a contract of insurance is made 
 with an 'agent who has no power to vary or 
 change the terms fixed by the company in its 
 policies, an oral contract will be considered 
 as a contract for insurance on the terms and 
 conditions contained in such policies: Hub- 
 bard v. Hartford F. Ins. Co., 33-325. 
 
 13. The terms of the form of policy in use 
 at the time of the oral contract will by im- 
 plication be deemed to be embraced in the 
 oral agi'eement as a part thereof : Smith v. 
 State Ins. Co., 64-716. 
 
 14. What constitutes contract ; charter 
 and by-liiws of miitnal cumpiiny: A mem- 
 ber of a mutual company is bound to take 
 notice of its articles of incorporation and by- 
 laws; Simeralv. Dubuque Mut. F. Ins. Co., 
 18-319; Coles v. Iowa State Mut. Ins. Co., 
 18-435. 
 
 15. The charter and rules of the company 
 referred to in the policy and attached thereto 
 become a part of it: Simeral v. Dubuque 
 Mut. F. Ins. Co., 18-319. 
 
 16. "Where the by-laws of a mutual com- 
 pany are incorporated into the policy, they 
 become binding on the insured, even though 
 as by-laws they are beyond the authority of 
 the board of directors to adopt : Hygum fc. 
 Mm Ins. Co., 11-21. 
 
 17. In an action by a mutual company 
 against one of its members on his premium 
 note, the defendant is an adversary party, 
 and, as such, is not conclusively bound by 
 the action of the board of dhectors in rela- 
 tion to such note ; nor is he required to take 
 notice of their proceedings : American Ins. 
 Co. V. Schmidt, 19-502. 
 
 18. A member of a mutual company is not 
 presumed to have knowledge of the rules in 
 relation to the instruction of officers or agents 
 in reference to the discharge of their duties : 
 Walsh V. ^tna L. Ins. Co., 30-133. 
 
 19. Terms of premium note: Where a 
 premium note, containing conditions, etc., is 
 given in connection with the issuance of a 
 policy, the policy and the note together form 
 the contract between the parties: Shultzv. 
 Rawkeye Ins. Co., 42-239. 
 
 20. Policy subsequently issued: Where 
 the appUcation, payment of premium and 
 issuance and delivery of policy are all con- 
 summated at the same time or are parts of 
 the same transaction, the assured should be 
 
 bound by whatever statements and obliga- 
 tions are contained in the policy ; but where 
 the api)lication and premium note were 
 taken by a soUciting agent and forwarded by 
 mail to the company, and the policy was 
 afterwards returned to assured, held, that, as 
 the policy was in force from the time of the 
 application, the assured was not bound by 
 the terms contained in the policy and might 
 recover for a loss, notwithstanding the breach- 
 of a condition in the policy against in- 
 cumbrances, it appearing that assured had 
 correctly stated to the agent the fact of in- 
 cumbrance upon the premises: Boeteher v. 
 Hawkeye Ins. Co., 47-253. 
 
 21. Ajiportioninent to distinct items: 
 The fact that a policy issued on a single con- 
 sideration apportions the amount of insur- 
 ance among distinct items will not render it 
 a severable policy : Garver v. Hawkeye Ins. 
 Co., 69-202. 
 
 22. Acceptance of risk is essential to con- 
 stitute a contract of insurance. The appli- 
 cation and premium note alone do not make 
 a contract: Walker v. Farmers' Ins. Co., 51- 
 679. 
 
 23. Where it is intended between the 
 parties that the application does not complete 
 the contract, but that such contract is to be 
 perfected by the issuance of a policy by the 
 company, if the application shall be accepted, 
 the company is not bound until such accept- 
 ance, and if the application is rejected befoi-e 
 notice of loss and for a good reason, the com- 
 pany will not be Uable : Armstrong v. State 
 Ins. Co., 61-212. 
 
 24. Where the insured and the agent of 
 the company deposited the policy with a third 
 party, while the agent should correspond 
 with the company and ascertain whether it 
 would accept the risk, and afterwards, the 
 risk having been refused and the property 
 having been burned by fife, the agent ob- 
 tained possession of the policy from such 
 third party, held, that there had been no 
 sucli delivery as that the policy would take 
 effect: Brown v. American Cent. Ins. Co., 
 70 . 
 
 25. In an action on a contract of insurance, 
 plaintiff cannot show and recover for negli- 
 gence of the agent of the company in not 
 securing the completion of sucli contract. If 
 that ground of recovery is relied on, it must 
 
908 
 
 INSURANCE, I, b, c. 
 
 Policy.— Payment of premium. 
 
 be pleaded: Walker v. Farmers' Ins. Co., 
 51-679. 
 
 26. Date of contract; relation back: The 
 
 contract or agreement to insure is the prin- 
 cipal act and whether the premium iz paid 
 or waived is immaterial. If the formal exe- 
 cution of the policy, though a subsequent 
 act, is made as of the date of the principal 
 act, it will have relation back to the time of 
 such act : Davenport v. Peoria M. & F. Ins. 
 Co., 17-276. 
 
 27. Thus where an agreement for insur- 
 ance w^as made between the parties by their 
 agents on one day and the policy was deliv- 
 ered and received in accordance with that 
 agreement on the morning of the next day, 
 in ignorance of the fact that the property 
 had been destroyed by fire during the night, 
 held, that the agreement for insurance was 
 binding on the company from the time 
 agreed upon : Ibid. 
 
 28. Where a policy is issued, dated on a 
 previous day in accordance with the contract 
 made on that day, it takes effect from the 
 time of the date, not from the time of de- 
 livery: Hubbard v. Hartford F. Ins. Co., 
 33-335. 
 
 2!). Alteration: The question of the ma- 
 teriality of an alteration is one for the court, 
 and where a pai'ty who held a contract of 
 insurance had altered an indorsement on the 
 back thereof, which was in fact a contract 
 with another party, held, that plaintiff's con- 
 tract would not be avoided by such altera- 
 tion even if material. But if there was such 
 alteration of the contract as to affect and 
 enlarge it, the alteration would avoid it: 
 Robinson v. Phoenix Ins. Co., 25-430. 
 
 30. Parol evidence to contradict the terms 
 of the contract of insurance is not admissi- 
 ble: Mills V. Farmers' Ins. Co., 37-400. 
 
 31. It is not competent by parol evidence 
 to establish a waiver of the terms of a writ- 
 ten policy of insurance, so as to make it 
 cover property not described therein and for 
 the benefit of a person not mentioned : Fuller 
 V. Phoenix Iiis. Co., 61-350. 
 
 32. Reformation: Where a policy upon 
 property of one person was procured in the 
 name of another for the reason that the 
 owner was financially embarrassed, held, that 
 there was no ground for reformation of the 
 contract by inserting the name of the real 
 
 owner instead of that of the person named 
 as beneficiary: Baldwin v. State Ins. Co., 
 60-497. 
 
 33. Where the policy covers entirely dif- 
 ferent property from that intended, there can 
 be no recovery thereon in an action at law 
 until there has been a reformation of the 
 contract: Eggleston v. Council Bluffs Ins. 
 Co., 65-308. 
 
 34. Latent anibignity in description: 
 Where the property was sufficiently described 
 by other description than the lot and block, 
 the description by lot and block being incor- 
 rect in that it did not specify the addition of 
 the city in which it was located, held, that 
 the error in the description was a latent am- 
 biguity subject to explanation by parol evi- 
 dence: Ibid. 
 
 35. Construction: In construing a policy 
 of insurance covering grain, held, that that 
 word under the circumstances properly in- 
 cluded flax seed yet unthreshed in the stack : 
 Hewitt V. Watertown F. Ins. Co., 55-323. 
 
 36. Parol condition: Where the validity 
 of a policy is established, it is upon defend- 
 ant to assume the burden of proof in show- 
 ing that a parol condition affecting its valid- 
 ity has not been complied with : Williams v. 
 Niagara F. Ins. Co., 50-561. 
 
 c. Payment of premium; cancella- 
 tion fo'r nortrpayment ; recovery 
 of unearned premium. 
 
 37. Assessment of premium note: Where 
 a premium note given in consideration of ii 
 policy of insurance in a mutual company 
 stipulated that the amount named should be 
 paid as required by the directors of the com- 
 pany agreeable to their charter and by-laws, 
 and by the charter such premium notes con- 
 stituted the capital stock of the company, 
 which was declared liable for losses and ex- 
 penses, held, that in an action on such note 
 the burden of proof was on the company to 
 show the necessity of assessment for losses 
 and expenses : American Ins. Co. v. Schmidt, 
 19-503. 
 
 38. Where the payment of the premium 
 note is to be made at such time as the direct- 
 ors may require, it does not become due until 
 an order for its payment is made : Warner v. 
 Beem, 36-385. 
 
INSURANCE, I, c. 
 
 909 
 
 Payment of premium ; cancellation for non-payment. 
 
 39. Under the facts of a particular case, 
 lield, that the company was authorized by its 
 charter to insure on either the mutual or the 
 cash plan, and that where the policy, notes, 
 etc., indicated that the insurance was on the 
 cash plan, instalments of premium notes be- 
 came due without proof of assessment or 
 losses: Davenport F. Ins. Co. v. Moore, 50- 
 619. 
 
 40. Annulment of policy for non-payment 
 of premium notes: Where the company had 
 the option, upon failure of insured to pay an 
 assessment on his premium note, to annul the 
 policy, held, that in order to authorize the 
 termination of the contract, notice of the re- 
 scission of the policy must be given the in- 
 sured: Supple V. Iowa State Ins. Co., 58-39. 
 
 41. Where the company does not require 
 payment of the premium at the time of the 
 issuance of the policy, but notifies insured 
 that it will be collected in the future, the 
 company cannot, upon a mere demand at 
 the place of business of insured in his ab- 
 sence, annul the policy for non-payment 
 without notice to him : Carson v. German 
 Ins. Co., 63-4*33. 
 
 42. Where the directors of an insurance 
 company were authorized by its articles to 
 fix the assessment to be paid by the persons 
 assured and to annul the policy upon failure 
 of the assured, for thirty days after being 
 notified thereof, to pay his assessment, and 
 the by-laws provided that such notice might 
 be given by mail, which was done, held, that 
 the policy might be suspended upon failure 
 to pay after such notice was sent, although 
 it was not received by insured : Greeley v. 
 Iowa State Ins. Co., 50-86. 
 
 43. Forfeiture or suspension for non- 
 payment : Where the policy provides that the 
 company shall not be liable for any loss 
 occurring after the note given for the pre- 
 mium is due and unpaid, such provision shall 
 exempt it from liability although the note 
 which was unpaid was given and taken in 
 payment for a cash premium: XVatrous v. 
 Mmissippi Valley Ins, Co. , 35-583. 
 
 44. A condition in a policy that in case of 
 loss whUe the note given for the cash pre- 
 mium or any part thereof remains unpaid 
 and past due, the policy shall be void, is 
 valid and will be upheld : Nedrow v. Farmers' 
 Ins. Co., 43-34. 
 
 45. Provisions in the policy that upon fail- 
 ure to pay the premium note at maturity 
 such failure will avoid the policy, and that 
 the collection of the note after such default 
 shall not revive the policy, are valid : Shakey 
 V. Hawkey e Ins. Co., 44r-540. 
 
 46. Under the provisions of the policy, 
 held, that owing to default in payment of 
 premium note the policy was suspended at 
 the time of loss : Garliek v. Mississippi Val- 
 ley Ins. Co., 44-553. 
 
 47. In such case, held, that acceptance of 
 part payment of the note, or offer by the com- 
 pany to extend the time of payment, or rep- 
 resentations by the secretary of the company 
 that the policy was in force, would not con- 
 stitute a waiver of the suspension : Ibid. 
 
 48. Under the power to annul a policy of 
 a mutual company for default in paying as- 
 sessments, the company may provide for its 
 annulment through the period of such de- 
 fault, with the stipulation for reinstatement 
 upon payment of the delinquent assessments : 
 Coles V. Iowa State Mut. Ins. Co., 18-435. 
 
 49. The company may provide in the pol- 
 icy that failure to pay a premium note shall 
 annul the contract, but that it may be re- 
 vived upon payment of the note unless suit 
 to collect such premium note shall have been 
 commenced before such paj'ment is made: 
 Shultz V. Hawkeye Ins. Co., 42-239. 
 
 50. The fact that a policy in a mutual 
 company becomes forfeited by reason of de- 
 fault in payment of assessments on premium 
 notes does not avoid such notes or release in- 
 sured from liability for assessments made 
 before the forfeiture : Iowa State Ins. Co. v. 
 Prossee, 11-115. 
 
 51. Under 18 G. A., ch. 310 (McClain's 
 Ann. Stat., 399), an insurance company seek- 
 ing to declare a forfeiture of a policy by rea- 
 son of the non-payment of the premium 
 note must not only give the maker notice of 
 the proposed suspension, of his policy on ac- 
 count of such non-payment, but must also 
 notify him of the amount necessary to pay the 
 customary short rates, including the expense 
 of taking the risk, up to the time the policy 
 will be suspended, in order to cancel the pol- 
 icy: Boyd V. Cedar Rapids Ins. Co., 70 . 
 
 52. In a particulai- case, held, that an appli- 
 cation by insured for extension of time and 
 the fact that it was not granted did not waive 
 
910 
 
 INSURANCE, I, c, d. 
 
 Unearned premiums. — Assignment; subrogation. 
 
 the provision as to notice just referred to : 
 Ibid. 
 
 Further as to forfeiture for non-payment, 
 see life insurance cases, infra, §§ 243-245. 
 
 53. Unearned preminnis: If assured con- 
 veys the property, the insurer may declare 
 the policy void without liability to refund 
 unearned premiums : Victor v. Hartford F. 
 Ins. Co., 33-210. 
 
 54. Money paid as premiums on policies 
 where the risk does not attach, or the con- 
 tract is void ab initio, as, for instance, on ac- 
 count of failure of assured to state the nature 
 of his interest in the property, may be re- 
 covered by the assured, and such right of 
 recovery is not dependent on the loss of the 
 property intended to be insured. Where 
 successive premiums have been paid for the 
 continuance of the insurance on the same 
 property, all such premiums may be re- 
 covered back: V/aller v. Northern Assiir- 
 ance Co., 64r-101. 
 
 55. The action to recover back the pre- 
 miums paid will not be barred by the limita- 
 tion contained in the policy upon an action 
 brought thereunder, the action to recover 
 such premiums n6t being an action under the 
 policy: Ibid. 
 
 56. The right of assured to cancel the pol- 
 icy and recovev back premiums paid in ex- 
 cess of customary short rates (18 G. A., ch. 
 310; McClain's Ann. Stat., 299) cannot be 
 exercised by assigning to another the right 
 to cancel such policy and collect the. un- 
 earned premium. The assignment would 
 avoid the policy and terminate the right to 
 recover. Nor can such unearned premium 
 be recovered after the policy has been ren- 
 dered void by taking other insurance : Colby 
 V. Cedar Rapids Ins. Co., 66-577. 
 
 d. Assignment,' subrogation. 
 
 57. Consent to assignment necessary: An 
 
 insurance against fire is a personal contract 
 with the assured, and the liability of the in- 
 surer does not continue to an assignee or pur- 
 chaser of the property unless by insurer's 
 consent: Siineral v. Dubuque Mut. F. Ins. 
 Co., 18-319. 
 
 58. Collateral security: With the con- 
 sent of the company a policy of insurance 
 may be assigned as collateral security with- 
 
 out the transfer of the property insurei! 
 therein: Stout v. City F. Ins. Co., 12-371. 
 
 59. Terms binding on assignee: Where 
 the articles of incorporation and by-laws of 
 a mutual company were attached to the pol- 
 icy, by the terms of which insurer undertook 
 the risk according to the provisions of such 
 articles and by-laws, held, that an assignee 
 of the policy and property was boimd by the 
 regulations as to alienation contained in the 
 articles and by-laws: Simeral v. Dubuque 
 Mut. F. Ins. Co., 18-319. 
 
 60. Where a policy of insurance is assigned 
 with the consent of the company, all its 
 terms and conditions are imported into the 
 new contract. Therefore, held, that under 
 a policy containing the condition that, if the 
 title of the property is incumbered, the policy 
 shall be void, such policy was void in the 
 hands of the assignee by reason of the exist- 
 ence of an incumbrance on the property, re- 
 maining after the assignment, it not appear- 
 ing that the company had knowledge of such 
 incumbrance at the time of the assignment; 
 Ellis V. State Ins. Co., 68-578. 
 
 61. Assignee not affected by false repre- 
 sentations of assignor: Where the company 
 has assented to the assignment of the pohcy 
 by the assured to the purchaser of the prop- 
 erty from him, it cannot afterwai'ds set up 
 as against the assignee false representi:- 
 tions made by the assignor in procuring the 
 policy. By consenting to the assignment, 
 the policy becomes a new contract between 
 the company and the assignee which is not 
 to be affected by the acts of the assignor: 
 Ellis V. Council Bluffs Ins. Co., 64^507. 
 
 62. Unearned premiums do not pass by 
 assignment: An assignment of a policy of 
 insurance without the conserj; of the com- 
 pany, where it is stipulated that such assign- 
 ment shall avoid the policy, cannot confer 
 upon assignee a right to recover unearned 
 premiums which may be due the assignor 
 upon the cancellation of the policy: Colby v. 
 Cedar Rapids Ins. Co., 66-577. 
 
 63. Assignment after loss: A policy con- 
 taining a stipulation against assignment be- 
 comes assignable after loss, notwithstanding 
 such stipulation: Walters v. Washington 
 I-ns. Co., 1-404; Carter v. Humboldt F. Inn. 
 Co., 12-287; Mershon v. National Ins. Co., 
 34-87. 
 
INSURANCE, I, e. 
 
 911 
 
 Warranties and representations. 
 
 64. Subrogation: A mortgagee has do 
 
 interest in a policy of insurance issued to 
 the mortgagor for his own benefit : Byan v. 
 Adamson, 57-30. 
 
 65. Assignment of claim against common 
 carrier: An insurance company has, by 
 virtue of its usual powers, authority to ac- 
 quire by assignment the claim of the shipper 
 of goods insured by it, against a common 
 cai'rier in whose hands they are destroyed, 
 and such assignment is valid without regard 
 to the binding force of the policy, if accepted 
 in pursuance of a settlement of the claims 
 of the insured against the company; and 
 upon such assignment the company may re- 
 cover the full amount of the loss, although 
 it exceeds the amoimt of the policy : Home 
 Ins. Co. V. Northicestern Packet Co., 32-323. 
 
 e. Warranties and representations. 
 
 66. Warranties strictly enforced: Where 
 a stipulation in the policy is made a war- 
 ranty, it must be strictly complied with or 
 the policy will be void : Hygum v. ^tna F. 
 Ins. Co., 11-21; Stout v. City F. Im. Co., 
 12-371. 
 
 67. Where a policy in a mill-owners' mu- 
 tual fire insurance company provided that 
 stoppage of the mill for any cause whatever 
 for more than twenty days without notice 
 should suspend the policy, held, that there 
 could be no recovery for a loss occurring 
 after twenty days' stoppage without notice, 
 no matter what the occasion for such stop- 
 page might be : Day v. Mill Oiimers' Miit. F. 
 Ins. Co., 70 . 
 
 68. Substantial compliance: The intention 
 and purpose of the parties in entering into 
 the covenants in the policy must be regarded, 
 and the language must be interpreted in har- 
 mony therewith if it can be done without 
 disregardmg its proper signification. A 
 covenant is not to be regarded as requiring 
 assured to comply with its literal provisions, 
 but a substantial compliance whereby the 
 hazard is not increased is sufficient : Bank- 
 hmd V. Des Moines Ins. Co., 70 . 
 
 69. Continuing warranty: An express 
 warranty as to the present use of the property 
 ■will not, without provision to that effect, con- 
 stitute a continuing or executory warranty 
 as to the future use in the same manner: 
 Stout V. CityF. Ins. Co., 12-371, 
 
 70. Condition of property: Where prop- 
 erty insured was described as a certain speci- 
 fied building " occupied as stores on the first 
 floor," etc., held, that if any of the rooms on 
 the first floor were occupied as stores the 
 policy was valid, whether they were all so oc- 
 cupied or not : Carter v. Humboldt F. Ins. 
 Co., 17-456. 
 
 71. Where the agent taking the insurance 
 directed an iron door to be put in, the con- 
 tinuation of the insurance being conditioned 
 upon that being done, but no time was fixed 
 when it should be completed, and it appeared 
 that the insured was making proper effort to 
 have it done, held, that the agreement to put 
 in tlie door was not a condition precedent, 
 and the insured could recover : Viele v. Qer- 
 mania Ins. Co., 26-9. 
 
 72. Breach of warranty: Where, in an 
 application for a policy of insurance, tlie 
 building was described as a two-story build- 
 ing, when in fact the main part was two 
 stories and there was a small addition of only 
 one story, held, that such misdescription was 
 not sufficient to constitute a breach of the 
 warranty as to the truth of the matter as 
 stated in the application. Any description an 
 to the height pertains rather to the identifi- 
 cation of the property than to the chai-acter 
 of the risk, and the same accm-acy is not 
 required in the former case as in the lat- 
 ter: Wilkins v. Germania F. Ins. Co., 57- 
 539. 
 
 73. Where assured, in his application, in 
 answer to a question whether his chimneys, 
 stoves, pipes, etc., were well secured, and 
 whether he would engage to keep them so, 
 answered yes, and such application was 
 made a part of the policy, but the property 
 was destroyed by reason of a portion of the 
 pipe in an upstairs room having been taken 
 down with the intention of taking down the 
 stove, situated below, for the summer, and 
 afterwai'ds, in forgetfulness of the removal 
 of the pipe, a fire having been lighted in 
 the stove, causing a conflagi-ation, held, that 
 there was not a breach of warranty such as 
 to defeat a recovery for the loss: Mickey v. 
 Burlington Ins. Co., 35-174. 
 
 74. Warranties not severable: A policy 
 issued on a single consideration upon dif- 
 ferent items of property is not severable, 
 although the amount of insurance is appor- 
 
913 
 
 INSURANCE, I, e. 
 
 Warranties and representations. 
 
 tjoned to the several items, and a breach of 
 warranty as to part of the property will 
 avoid the policy as to all : Garver v. Hawk- 
 eye Ins. Co., 69-203. 
 
 75. Statement as to knoYV'ledge: Where 
 the warranty of assured as to statements in 
 his application was that the application was 
 a just, full and true exposition of all the 
 facts and circumstances in regard to the con- 
 dition, etc., of the property, so far as the 
 same were known to the applicant, held, that 
 the truth of the matters stated could not be 
 deemed as absolutely warranted, and that the 
 burden of proof was upon the company to 
 establish knowledge on the part of applicant 
 that the facts stated in his application were 
 not true: Wilkins v. Oermania F. Ins. Co., 
 57-529. 
 
 76. Kepresentations ia application: By 
 statute (18 G. A., ch. 211, § 2; McClain's Ann. 
 Stat., 300) it is incompetent, in defense to an 
 action upon a policy, to plead or prove state- 
 ments made in the application, where such 
 statements are not reduced to writing and a 
 copy thereof is not attached to or indorsed 
 upon the policy : Ellis v. Council Bluffs Ins. 
 Co., 64-507. And see Wallace v. Council 
 Bluffs Ins. Co., 66-139. 
 
 77. Where answers in the application are 
 filled up by the agent taking such application 
 from his own knowledge, the fact that a 
 copy of the application is attached to the 
 policy which is deUvered to insured wOl not 
 bind him to statements thus made, although 
 he fails to notify the company of their fals- 
 ity. The assured is not required to prove 
 the statements made in the application to be 
 true, and he is therefore not required nor 
 has he occasion to examine the copy of the 
 application indorsed on the policy : Donnelly 
 V. Cedar Rapids Ins. Co., 70 . 
 
 78. Where the insured fills the application 
 in blank and leaves it with the soliciting 
 agent of Insurer, who fills up the application 
 and writes out answers to questions con- 
 tained therein, basing such answers upon 
 his own investigation and knowledge, the 
 insurer will be estopped by such act of its 
 agent from setting up misstatements in such 
 answers as a breach of warranty : Ibid. 
 
 79. Age of building: A false statement 
 in an application as to the date when a buUd- 
 ing insured was erected will not defeat the 
 
 policy unless it is material to the hazard of 
 the risk: Eddy v. Hawkeye Ins. Co., 70 . 
 
 80. It is not competent to show that the 
 phrase " when built," in reference to the age 
 of the building, refers in insurance parlance to 
 a building constructed entirely of new mate- 
 rial: Lamb v. Council Bluffs Ins. Co., 70 . 
 
 81. Oral repi-esentiitions: In an action on 
 a policy, the company cannot prove false 
 representations made orally to its agent at 
 the time of applying for the insurance for the 
 purpose of defeating the policy: Ellis v. 
 Council Bluffs Ins. Co., 64-507. 
 
 82. Location of property: The expres- 
 sion, "stored therein," in reference to certain 
 goods in connection with the building de- 
 scribed, must be construed as defining the 
 location of the property, and not as sufficient 
 to cover property belonging to another owner 
 stored in such building. Where the terms of 
 the policy require that goods held by any 
 other right than that of absolute ownership 
 shall be specifically mentioned, if intended to 
 be covered, and there is in the building some 
 property belonging to the insured, and therie- 
 fore answering the description of the policy, 
 property of others stored in the same building 
 will not be considered as covered: Fuller v. 
 Phoenix Ins. Co., 61-350. 
 
 83. Kemoval of property: Where the 
 policy of insurance contained a requirement 
 that in making proof of loss the insured 
 should state on oath that all the merchandise 
 and personal property for which claim was 
 made was at the time of the flre contained in 
 the building or premises described in the pol- 
 icy, and the description in the policy was of a 
 stock of pumps, etc., contained in the "one- 
 ttory frame building situated on the north 
 side of the public square and west of Fourth 
 street," etc., and it appeared that subse- 
 quently the property had been removed to 
 another building of the same general descrip- 
 tion of structure and location, where it was 
 burned, held, that plaintifiE could not recover 
 for the loss, the description in the jralicy 
 being of a particular building and the lan- 
 guage used amounting to a warranty that 
 the property was in such building and would 
 continue to remain there: Harris v. Royal' 
 Canadian Ins. Co., 53-236. 
 
 84. Removal for use: Policies of msur- 
 ance are to be reasonably construed, and a 
 
INSURANCE, I, e. 
 
 913 
 
 Warranties and representations. 
 
 restriction placed upon the use of the prop- 
 erty insured by implication only will not be 
 sustained if unreasonable. In a particular 
 case, where a team of horses, for the loss of 
 which recovery was sought, were, with other 
 property, described as situated upon a cer- 
 tain section, township, and range, held, that 
 plaintiff could recover for a loss sustained 
 while the team was temporarily removed 
 from said premises: Peterson v. Mississippi 
 Valley Ins. Co., 24-494. 
 
 85. So held, also, where a loss by lightning 
 occurred off the premises where live-stock 
 insured was described as situated: Mills v. 
 Farmers' Ins. Co., 37-400. 
 
 86. Where property such as a horse, har- 
 ness, or buggy is described in the policy as 
 contained in a certain barn, the presump- 
 tion must be that it is in use and that the 
 policy is issued with reference to such use; 
 and while the statement will constitute a 
 warranty that the property will continue to 
 be contained in such place as a place of de- 
 posit when not absent therefrom for tempo- 
 rary purposes incident to its use and enjoy- 
 ment, yet if it is removed in pursuance 
 of such use, as, for instance, where a buggy 
 is taken to a carriage shop for repairs and 
 left there a reasonable length of time, such 
 fact will not constitute a breach of warranty 
 such as to defeat recovery although the risk 
 is increased by reason of such removal: 
 McCluerv. Girard F. & M. Ins. Co., 43-349. 
 
 87. Where weai'ing apparel was described 
 as contained in a certain dwelling-house, 
 IkH, that a destruction thereof by fire in 
 another place while in ordinary use was 
 within the policy and the insurer would be 
 liable: Longueville v. Western Assurance Co., 
 51-553. 
 
 88. Overvaluatiott by the insured in his 
 application will not defeat recovery on a pol- 
 icy which regulates the damages by the 
 actual cash value of the property at the time 
 of the loss. Such valuation is not material 
 to the risk, and if considered as a warranty, 
 being neither an inducement to the contract 
 nor the foundation of fraud by the plaintiff, 
 a misstatement with reference thereto will 
 not defeat recovery: Bonham v. Iowa Cen- 
 tred Ins. Co., 25-338. 
 
 89. Overvaluation is usually honestly made, 
 and it is doubtful whether anything short of 
 
 Vol. 1—58 
 
 fraudulent intent should render a policy void 
 on that ground: Behrens v. Germania F. 
 Ins. Co., 64-19. 
 
 90. In a particular case, held, that an 
 overvaluation was not so great as to justify 
 a court in holding, as a matter of law, that 
 there could be no recovery on the policy: 
 Ibid. 
 
 91. Ownership: One who has purchased 
 and partly paid for property, and is in posses- 
 sion with no lien for purchase money or in- 
 cumbrance of any other character against it, 
 holds the absolute and sole ownership of the 
 property, although it has not been deeded to 
 him: Bonham v. Iowa Central Ins. Co., 25- 
 328. 
 
 92. The existence of a chattel mortgage 
 upon goods covered by the policy wiU not 
 cause a forfeiture by reason of a condition in 
 the policy providing that it shall be void if 
 insured is not the sole and unconditional 
 owner of the property : Hubbard v. Hartford 
 F. Ins. Co., 33-325. 
 
 93. A policy providing that if the interest 
 of the insured in the property is other than 
 the entire, unconditional and sole ownership 
 thereof for his own use and benefit, it must 
 be so stated in the written part of the policy, 
 is void ab initio if the interest of the insured 
 is that of mortgagee only, and in the absence 
 of fraud or deception the insured may in such 
 case recover back the premium paid, on the 
 gTound that the risk never attached : Waller 
 V. Northern Assurance Co., 64-101. 
 
 94. Under a warranty that the interest of 
 assured in the property is absolute, and not 
 a leasehold on other interest not absolute, 
 or that he is the sole and unconditional 
 owner, the fact that insured has only a life 
 estate will constitute a breach of the war- 
 ranty and render the policy void : Davis v. 
 Iowa State Ins. Co., 67-494; Carver v. 
 Hawkey e Ins. Co., 69-202. 
 
 95. Under an insurance policy providing 
 that property held in trust must be insured 
 as such, held, that the fact that the title was 
 held in secret trast to defraud the. creditors 
 of another would not be such a holding in 
 trust as contemplated by the terms of the 
 policy: Ayres v. Hartford F. Ins. Co., 17- 
 176. 
 
 96. Incumbrances: A mortgage executed 
 upon the property, but not delivered, is not 
 
9U 
 
 INSURANCE, I, e. 
 
 Warranties and representations. 
 
 an incumbrance such as to defeat recovery 
 under a condition as to incumbrances : Olm- 
 itead V. Iowa Mut. Ins. Co., 34-503. 
 
 97. Material misrepresentations as to the 
 amount of an incumbrance upon the prop- 
 erty will avoid the policy, and it will be im- 
 material vchether it is the result of bad faith 
 or of mere ignorance. Where the answer 
 given is qualified it will still be the declara- 
 tion that the information of the party mak- 
 ing it is such as to justify him in giving the 
 qualified answer which he does give : Glade 
 V. Gemiania F. Ins. Co., 56-400. 
 
 98. Where it was provided in a policy that 
 it should become void upon the execution of 
 any incumbrance on the property until the 
 consent of the company was obtained thereto 
 and indorsed thereon by the secretary, and a 
 mortgage was afterward executed and the 
 policy was forwarded to the company for 
 such indorsement of consent, but was re- 
 turned without indorsement with the state- 
 ment that the policy would be transferred to 
 mortgagee when certain assessments then 
 due had been paid, held, that such policy had 
 then become void and was not revived by 
 the action of the company: Supple v. Iowa 
 State Ins. Co., 58-39. 
 
 99. Where the application in a policy de- 
 scribed the property insured as situated upon 
 a certain tract of land, held, that incum- 
 brances upon a portion of such tract, which 
 portion did not include the buildings insured, 
 would not render the policy void, although 
 not properly described in the application: 
 Eddji V. Haivkeye Ins. Co., 70 . 
 
 100. Where the property insured was a 
 homestead, held, that the existence of a 
 judgment against the insured, which was 
 not a lien upon the homestead, did not render 
 the policy void : Ibid. 
 
 101. In a particular case held that a policy 
 became void by reason of certain incum- 
 brances executed by insured without consent 
 of insurer, and in violation of its terms: 
 Mallory v. Farmers' Ins. Co., 65-450. 
 
 102. In the absence of a warranty that 
 there is no incumbrance upon the property, 
 it is not incumbent upon plaintiff to prove 
 that there was no incumbrance: Edgerly v. 
 Farmers' Ins. Co., 48-644. 
 
 103. Alienation; change of title, etc.: 
 A complete alienation of the property ends 
 
 the insurance, but if it is for tbe purpose of 
 collateral security, and the insured still re- 
 tains an interest in the property, the policy 
 wUl protect that interest in the absence of 
 stipulations to the contrary : Ayres v. Hart- 
 ford F. Ins. Co., 17-176. 
 
 104. Where a policy contained a stipula- 
 tion that, in case of any "sale, transfer or 
 change of title in the property insured," the 
 insurance should cease and be void, held, 
 that in the absence of expi-ess provision 
 against mortgages, a mortgage was not a sale 
 within the terms of the policy, and that a 
 change or transfer of title must be more than 
 nominal, and such a change in the interest 
 of the assured as would create a greater 
 temptation or motive to burn the property or 
 less interest in preserving it from destruction 
 by fire, in order to render the policy void : 
 Ihid. 
 
 105. Nothing less than a transfer of the 
 property insured whereby the insured parts 
 with all insurable interest therein will oper- 
 ate to defeat the policy under the condition 
 against alienation. Therefore, held, that a 
 transfer of the property by the insured to the 
 firm in which he was a member was not 
 such alienation as to render the policy void: 
 Cowan V. Iowa State Ins. Co., 40-551. 
 
 106. Under a policy of insurance providing 
 that in case of any sale, transfer, or change 
 of title in the property insured, it should be 
 void, held, that the assignment by the in- 
 sured of the title bond under which he held 
 the property as collateral security to a judg- 
 ment creditor to secure his judgment lien, 
 which was older than the interest of assured 
 in the property, and also to secure such cred- 
 itor for the advance of the balance of the 
 purchase money if he should make it, did not 
 constitute such a change in the title as to 
 defeat the policy, if it did not increase the 
 creditor's rights nor decrease the interest of 
 assured: Ayres v. Home Ins. Co., 31-185; 
 Ayres V. Hartford Ins. Co., 21-193. 
 
 107. Where the policy contained the pro- 
 vision that if the title to the property was 
 transferred, incumbered or changed the pol- 
 icy should be void, held, that an execution 
 of a mortgage on the property which was 
 still in force at the time of loss rendered the 
 policy void. An incumbrance affects and 
 renders less valuable the right to the prop- 
 
INSURANCE, I, e. 
 
 91c 
 
 Warranties and representations. 
 
 erty, and a mortgage amounts to an incum- 
 brance within such provision in the policy : 
 Mis V. State Ins. Co., 61-577. 
 
 108. Under the same provision in a policy 
 issued to a firm, held, that a transfer by one 
 partner to the other of all his interest in the 
 firm property was a sufficient change in the 
 title to render the policy void: Hathaway v. 
 State Ins. Co., 64-229. 
 
 109. If the stipulation in the policy relates 
 only to alienation, it seems that such a change 
 inthe title would not avoid the policy: Ibid. 
 
 110. To defeat recovery under a policy 
 containing a pi'ovision against sale or con- 
 veyance, such sale or conveyance must be fuU 
 and complete to work a forfeiture, and the ' 
 right to the property and the possession 
 thereof must pass from the vendor to the 
 vendee. A mere contract for a sale or 
 conveyance, not divesting the title of the 
 vendor and vesting the same in the vendee, is 
 not a breach of the provision. Therefore, 
 held, that a contract to convey at a future 
 day upon payment of the purchase money, 
 which was to be paid at a certain time and 
 upon delivery of the deed, did not amount to 
 a sale or conveyance within the terms of the 
 policy: Kempton v. State Ins. Co., 63-83. 
 
 111. As a provision against sale or con- 
 veyance of the property imposes a restriction 
 upon the right of disposing of the property, 
 it should be construed with strictness : Ibid. 
 
 112. Alienation by operation of law: 
 Certain proceedings of foreclosure and sale 
 and to correct the description of property 
 covered by the mortgage and sale, held suffi- 
 cient to amount to alienation by operation of 
 law and to avoid the policy containing a 
 provision against such alienation : McKissick 
 V. Mill Ovmers' Mut. F. Ins. Co., 50-116. 
 
 113. Foreclosure: A provision in the 
 policy that commencement of foreclosure or 
 other proceedings upon any mortgage shall 
 render the policy null and void are valid : 
 Mea^bws v. Hawkeye Ins. Co., 63-387. 
 
 114. Other insurance: Where insurance 
 was affected with a condition of forfeiture in 
 case of other insurance without notification 
 and indorsement by the insurer, and other 
 insurance was effected without such notice, 
 by poUcies which were thetnselveBprima facie 
 void by reason of failure to state certain facts, 
 but which were treated as valid and paid, 
 
 after loss, by the respective companies, held, 
 in an action on the first policy, that while it 
 might have been true that the latter policies 
 could have been avoided by the insurers, yet 
 as far as plaintiff was concerned, they iivere 
 valid, and it was the duty of the plaintiff 
 to have notified defendant that he had ef- 
 fected what he supposed at the time was 
 valid insurance, and he could not recover 
 on his first policy: David v. Hartford Ins. 
 Co., 13-69. 
 
 1 15. Where a policy of insurance is issued 
 containing the stipulation that it shall be 
 void in case of the taking of other insm'ance 
 without the consent of the company, the sub- 
 sequent taking of a policy of insurance which 
 is void on account of a like stipulation as to 
 prior insurance, and which is actually avoided 
 by the company on that account, wiU not 
 render the prior policy void or voidable: 
 Hubbard v. Hartford F. Ins. Co., 33-325; 
 Behrens v. Germania F. Ins. Co., 64^19. 
 
 116. But the breach of condition in the 
 second policy renders it voidable only, and if 
 the company issuing such policy does not 
 avoid it, it is valid and renders the prior pol- 
 icy void: Hubbard v. Hartford F. Ins. Co., 
 33-335. 
 
 11 7. Statements by insured in his proof of 
 loss as to another policy of insurance subse- 
 quently issued on the same property by an- 
 other company does not estop him from 
 claiming that such jjolicy was void, and 
 therefore did not defeat the policy under 
 which the proofs were made : Ibid. 
 
 118. Indorsement upon a policy of a per- 
 mit for " additional insurance,'' held under 
 the facts of the case to refer to prior as well 
 as subsequent insurance, and as prior and 
 subsequent insurance to a larger amount than 
 was permitted in the policy was made, it 
 was held that the policy was thereby ren- 
 dered void: Behrens v. Oerniania Ins. Co., 
 58-36. 
 
 118. Where a policy of insurance con- 
 tained a provision which was made a war- 
 ranty, that any further insurance, valid or 
 invalid, would render the policy void, held, 
 that proof as to what the insured thought as 
 to whether there was prior insurance was im- 
 material: Zinck V. Phoenix Ins. Co., 60-366. 
 
 120. Where the provision of the policy 
 was that it should be void in case there was 
 
916 
 
 INSURANCE, I, e, f . 
 
 Warranties and representations. — "Waiver. 
 
 any other insurance on the property whether 
 vaUd or not, held, that a prior policy of in- 
 surance which had become void by reason 
 of removal of the property in violation of 
 tiie terms thereof did not defeat the subse- 
 quent policy: Stevens v. Citizens' Ins. Co., 
 69-658. 
 
 121. Oi'al permission given to the agent of 
 the owner of the property to obtain addi- 
 tional insurance wUl not authorize additional 
 insurance to be taken by such agent in his 
 own name after he has become the purchaser 
 of the property and taien an assignment of 
 the policy: Sower v. State Ins. Co., 58-51. 
 
 12!J. In the absence of a warranty against 
 other insurance, it is not incumbent upon the 
 plaintiff seeking to recover upon a policy to 
 show that there was no other insurance: 
 Edgerly v. Farmers' Ins. Co., 48-644. 
 
 1 U3. Where it was provided in a policy of 
 insurance that insured should furnish to the 
 companies copies of other policies of insur- 
 ance upon the property, held, that a substan- 
 tial compliance with this provision was all 
 that was required, and that a mistake in a 
 copy thus furnished, not material, would not 
 defeat the right of recovery : Miller v. Hart- 
 ford F. Ins. Co., 70 . 
 
 ' 124. Vacancy of building: Where a policy 
 provided that if the building became vacant 
 and unoccupied, and so remained without 
 notice to and consent of the company, it 
 should become void, and the building was 
 burned, after having been vacant seventeen 
 days without notice to the company, held, 
 that the insured could not recover for the 
 loss: Dennison v. Phoenix Ins. Co., 52-457. 
 
 125. Provisions in a policy against loss by 
 fire or tornado, rendering the policy void in 
 case of vacancy, held applicable to the case 
 of loss by tornado equally with a loss by fire: 
 Sexton V. Hawheye Ins. Co., 69-99. 
 
 126. Where a building was described and 
 insured as a dwelling-house, held, that occu- 
 pancy thereof for the pui-pose of storing 
 tools, etc., was not such as to prevent a 
 breach of warranty against vacancy : Ibid. 
 
 127. A house is not to be deemed vacant 
 and unoccupied by the mere fact of the 
 physical absence of the occupants for a day 
 or a night. And where it appeared that the 
 house covered by a poUcy had been vacated 
 by the tenant and that the owner was pre- 
 
 paring to move into it from an adjoining 
 house, and had placed his furniture therein 
 with the intention to personally occupy it 
 the next day, and a loss occurred in the mean- 
 time, and before the family had actually 
 lodged or taken their meals in the house, it 
 would not be deemed vacant at the time of 
 such loss so as to defeat recovery under the 
 policy: Eddy v. Hawkey e Ins. Co., 70 . 
 
 128. The provision of the policy against 
 vacancy does not bind the insured to personal 
 occupancy of the building where it is not of 
 a character permitting personal occupancy. 
 Such a stipulation in the policy covering a 
 hog-house held to be intended to secure the 
 watchfulness of the occupant to protect it 
 from fire, and that the fact that the building 
 had ceased to be used for any purpose, the 
 owner of the premises continuing to reside 
 thereon, would not constitute vacancy such 
 as to make void the policy : Kimball v. Mon- 
 arch Ins. Co., 70 . 
 
 129. Fraud: An attempt of insured to re- 
 cover from the company an amount due to 
 the mortgagee of the property by assignment 
 of the policy constitutes such fraud on the 
 part of the insured as to defeat his right of 
 recovery for any loss under the terms of the 
 policy stipulating that it shall be void in case 
 of fraud: Lewis v. Council Bluffs Ins. Co., 
 63-193. 
 
 f . Waiver of breach of warranty or 
 forfeiture. 
 
 130. Wliat deemed waiver: To constitute 
 a waiver, it is not necessary that the acts 
 relied upon be attended with such equitable 
 circumstances as would create an estoppel, 
 as, for instance, that the opposite party shall 
 have been induced by the acts in question to 
 in any manner change his condition with 
 reference to the subject: Hollis v. State Ins. 
 Co., 65-454. 
 
 131. If, with knowledge of the cu-cum- 
 stances constituting a forfeiture, the com- 
 pany continues to treat the contract as of 
 binding force, and induces the plaintiff to 
 act in that belief, it will be held thereby to 
 have waived the forfeiture : Ibid. 
 
 132. Where an insurance company has no- 
 tice of a transfer of the property and approves 
 of it, it cannot afterwards set up the fact of 
 such transfer to defeat recovery upon the 
 
INSUEANCE, I, f. 
 
 917 
 
 Waiver of breach of warranty or forfeiture. 
 
 policy, having retained the premium : Kim- 
 hdlv. Monarch Ins. Co., 70 . 
 
 133. Waiver of prepayment of premium : 
 
 Prepayment of premium may be waived by 
 a general agent, even where the policy re- 
 cites that it shall not be binding until the 
 cash portion of the premium is actually paid, 
 and there is a condition in the policy forbid- 
 ding the waiver of such prepayment except 
 in writing on the policy. Such condition of 
 the policy may itself be waived by a general 
 agent. At least this is true where the policy 
 does not contain any limitation on the power 
 of the agent to waive its conditions, and the 
 person doing business has no notice of such 
 a limitation. Where an agent with large 
 discretionary powers writes up and delivers 
 a policy which contains the condition referred 
 to, and at the sam.e time extends a short 
 credit for the payment of the premium, the 
 assured has a right to suppose that all condi- 
 tions precedent to the taking effect of the 
 policy have been waived : Young v. Hartford 
 F. Ins. Co., 45-377. 
 
 134. Where, by the terms of the policy, 
 the company ceases to carry the risk after 
 thirty days from the time an instalment of 
 the premium becomes due, the agreement of 
 an agent of the company having authority 
 to collect the premium, but not the right to 
 contract for insurance or extend the time for 
 the payment of the premium, will not con- 
 stitute a waiver of the condition so as to 
 continue the policy in force: Critchett v. 
 American Ins. Co., 53-404. 
 
 135. Subsequent acceptance of premi- 
 ums: Under a policy of a mutual company 
 providing that use of the premises for haz- 
 ardous or extra-hazardous purposes during 
 the continuance of the policy should annul 
 it so long as the premises were so used, held, 
 that the act of the company subsequently to 
 the breach of such condition, and with full 
 knowledge thereof, in collecting assessments 
 on premium notes, would constitute a waiver 
 of such forfeiture : Keenan v. Missouri State 
 Mut. Ins. Co., 13-126. 
 
 136. Receiving the premium on the policy 
 with full knowledge of, and after the occur- 
 rence of facts which would be ground for de- 
 claring it forfeited, amounts to a waiver of 
 the right to declare a forfeiture : Mershon v. 
 National Ins. Co., 34^87. 
 
 137. Acceptance of risk with knowledge 
 of the breach of conditions: Where a policy 
 provided that it should be void if the premises 
 were vacant and unoccupied, and also that 
 any waiver of conditions, etc., must be in- 
 dorsed on the policy, and it appeared that the 
 property insured was vacant at the time that 
 the policy was executed, and that there was a 
 verbal agreement with the agent that it 
 might remain vacant for thirty days, during 
 wliich time it burned, held, that the company 
 having, through their agent, issued the policy 
 and received the premium with full knowl- 
 edge that the property was unoccupied, 
 thereby waived the conditions of the policy : 
 Williams v. Niagara F. Ins. Co., 50-561. 
 
 138. Where a policy is issued with knowl- 
 edge of false statements contained therein, 
 and the application is made a part of the 
 policy, the company cannot afterwards ob- 
 ject to the policy on the ground of such 
 statements : Lamb v. Council Bluffs Ins. Co., 
 70 . 
 
 139. An insurance company, issuing a 
 policy and receiving the premium thereon 
 with knowledge of facts which were breaches 
 of warranties contained in the policy, wUl 
 be estopped to deny the validity of the in- 
 strument and wiU be regarded as having 
 waived the violation of its conditions : Jor- 
 dan V. State Ins. Co., 64-216 ; Stone v. Hawh- 
 eyelns. Co., 68-737. 
 
 140. In such a case, knowledge of an 
 agent taking the application who is author- 
 ized to solicit and forward applications for 
 insurance, and to deliver policies and collect 
 and transmit premiums, will bind the com- 
 pany: Ibid. 
 
 141. Where an agent, having authority to 
 receive applications and take risks, had 
 knowledge that the person described as the 
 owner of the property was dead, and that 
 the intention was to insure the interest of 
 the heirs in such property, and suggested 
 that the policy should be taken out in that 
 form, held, that the misstatement as to the 
 ownership of the property would not render 
 the policy void: Anson v. Winnesheilc Ins. 
 Co., 23-84. 
 
 142. Waiver by not annulling policy: A 
 breach of a condition in a policy of insurance 
 which provides that upon such breach it 
 shall become void, does not make it ipso facto 
 
918 
 
 INSURANCE, I, f. 
 
 Waiver of breach of warranty or forfeiture. 
 
 void, and the forfeiture may be waived by 
 the insurance company, expressly, or by 
 acts amounting to estoppel, and the policy 
 wiU then continue with its original force 
 and effect: Viele v. Germania Ins. Co., 
 26-9. 
 
 143. "Where the risk is increased by the 
 insured, and the insurer has notice thereof, 
 and the right to cancel is not exercised, this 
 amounts to a waiver of the forfeiture arising 
 from breach of the condition against in- 
 crease of risk : Ihid. 
 
 144. After such forfeiture, the policy is 
 still the only competent evidence of the con- 
 tract, and the insurer will not be discharged 
 unless he pleads the fact that the insured 
 failed to perform his covenants. His silence 
 in this respect will be a waiver of the default 
 of the insured : Ibid. 
 
 145. Permitting the policy to stand with- 
 out objection or claim that its terms are vio- 
 lated by the failure of the insured to com- 
 municate information of the existence of an 
 incumbrance on the property, after knowl- 
 edge of such incumbrance has been acquired 
 by the company, wiU constitute a waiver of 
 the breach of the condition. So held where 
 there was a chattel mortgage upon the prop- 
 erty at the date of the policy and subse- 
 quently the company made an indorsement 
 thereon, making the loss payable to the 
 mortgagee, as his interest might appear, no 
 objection to the policy on the ground of the 
 existence of such incumbrance being inter- 
 posed: Lewis V. Council Bluffs Ins. Co., 63- 
 193. 
 
 146. Demanding proofs of loss: Where a 
 policy provided that the company should 
 not be liable for any loss during the time 
 that the building should be vacant and un- 
 occupied, also that after the loss the party 
 claiming under the policy should give imme- 
 diate notice thereof and render a particular 
 account, etc., stating the occupancy of the 
 buUdiiig insured, etc., duly verified, etc., and 
 that the loss should not become payable 
 until such proofs had been rendered, held, 
 that as plaintiff had no right of action until 
 these proofs were made, the company did 
 not waive its right to object to paying the 
 loss on account of the vacancy of the build- 
 ing by requiring plaintiff to furnish his proofs 
 of loss, without a refusal to pay on that ac- 
 
 count after knowledge of the fact: Fitch- 
 Patrick v. Hawkeye Ins. Co., 53-335. 
 
 147. Waiver as to use: Where a policy of 
 insurance was surrendered to the company 
 with the information that a use was being 
 made of the premises inconsistent with the 
 terms of the policy and thereupon the com- 
 pany returned the policy vmcanceled, held, 
 that the policy thereafter remained in force as 
 before, the condition being thereby waived : 
 Nedrow v. Farmers' Ins. Co., 43-24. 
 
 148. The waiver of the breach of con- 
 dition against increased risk by permitting a 
 certain article to be manufactured in the 
 buUding applies not only to breaches prior to 
 the waiver, but also contemplates a dispensa- 
 tion of the condition and a continuation of the 
 prohibited use: Viele v. Oermania Ins. Co., 
 26-9. 
 
 149. Consent to the prohibited use of the 
 building as a manufactory implies consent 
 to the use of such articles as are neces- 
 sary in connection with the use thus con- 
 sented to, though the use of such articles 
 may be expressly prohibited in the policy: 
 Ibid. 
 
 1.50. Parol eyidence of w.aiver: The rule 
 that parol evidence is not admissible to con- 
 tradict or alter a written instrument does not 
 exclude such evidence when oif ered to show 
 discharge or waiver. The same character of 
 evidence wiU. establish a waiver or dispensa- 
 tion of conditions that is sufficient to prove 
 the existence of a contract, such as an ex- 
 press agreement, or acts and declarations in- 
 ducing the other party to believe the condition 
 or forfeiture waived and a treatment of the 
 contract as not forfeited : Ibid. 
 
 151. Consideration for waiver: A condi- 
 tion in a policy is not dependent upon nor 
 supported by the consideration and may be 
 waived or dispensed with by an agreement 
 without consideration : Ibid. 
 
 152. Keturn of premium not necessary: 
 Failure of the company to repay to the as- 
 sured the pro rata premium unearned on 
 the policy after loss, upon learning that the 
 policy has been rendered void by reason of 
 its conditions, will not constitute a waiver: 
 Jeweftv. Home Ins. Co., 29-562. 
 
 153. The appointment of au appraiser to 
 determine the value of the goods not de- 
 stroyed will not constitute a waiver of the 
 
INSURANCE, I, g, h. 
 
 919 
 
 Loss; what covered. — Conditions precedent to recovery. 
 
 breach of a condition coming to the knowl- 
 edge of the insurer after loss : Ibid. 
 
 154. Waiver by agent: A general agent 
 is presumed to have authority to waive for- 
 feitures and dispense with conditions and the 
 company will be hound by his acts in this 
 respect within the general scope of his au- 
 thority though he violates limitations that 
 are not brought home to the knowledge of 
 the party with whom he deals : Viele v. Oer- 
 mania Ins. Co., 26-9. 
 
 And further as to authority of agents, see 
 infra, I, j. 
 
 g. Zossj what covered. 
 
 155. Negligence: Insurance against fire 
 covers losses occasioned by the mere faults 
 and negligence of assured and his servants, 
 not affected with any fraud or design: 
 Mickey v. Burlington Ins. Co., 35-174. 
 
 15G. llecovery not limited to interest: 
 The value of the property and the sum in- 
 sured determine the amount of recovery and 
 not the value of the interest of the assured in 
 the property. So held where the interest of 
 assured was merely the right of homestead 
 in the property of his wife. Whether the 
 rule would be dififerent in case of a mortgagee 
 or lienholder, quaere: Merrett v. Farmers' 
 Ins. Co., 42-11. 
 
 157. After-acquired property: Where the 
 policy covers live-stock of a certain value, 
 situated upon certain described premises, but 
 not otherwise specifically described, the com- 
 pany will be liable for an animal acquired 
 after the date of the policy in exchange for 
 one covered by the policy : Hills v. Farmers' 
 Ins. Co., 37-400. 
 
 As to effect of removal, etc., see supra, 
 Sis 83-87. 
 
 158. What damage covered: Under a 
 policy which excluded store furniture and 
 fixtures, held, that damages to the founda- 
 tion, also that to an ice box built into and 
 constituting part of one of the walls of the 
 building, and also to an awning, were prop- 
 erly included in the damages covered by 
 the policy : WilMnsv. Oermania F. Ins. Co.. 
 57-529. 
 
 159. Evidence: Where the question is 
 whether a destruction of property insured is 
 due to what is described in the policy as a 
 
 tornado, or to weakness of the building, by 
 reason of which it is blown over by a wind 
 less violent than one thus contemplated, 
 evidence as to damage done in the neighbor- 
 hood at the same time is admissible as tend- 
 ing to prove the nature of the storm : Pog- 
 gensee v. Mutual F. L. <fc T. Ins. Co., 69-157. 
 
 160. In a particular case held that the 
 evidence was not sufficient to show that ani- 
 mals covered by a policy of insurance against 
 lightning, etc., had been injured in such a 
 manner as to render the company hable: 
 Wilson V. Hawkeye Ins. Co., 70 . 
 
 161. Custom: It is not proper, in an 
 action under an insurance policy, to allow 
 defendant to prove by experts the manner 
 of adjusting losses: Williams v. Niagara 
 F. Ins. Co., 50-561. 
 
 162. Apportionment: The fact that the 
 whole amount of insurance is apportioned in 
 several amounts among distinct items of 
 property limits the liability of insurer to the 
 sums specified as to each item, but does not 
 render the policy severable if the considera- 
 tion is single. There cannot, in such case, 
 be a recovery as to one part of the property 
 if by reason of misstatements the policy is 
 void as to other parts: Garver v, Hawkeye 
 Ins. Co., 69-202. 
 
 h. Conditions precedent to recovery j 
 notice; proof of loss. 
 
 163. Condition precedent; arbitration; 
 
 Where the policy contained a condition that, 
 at the request of either party, any difference 
 which might arise as to the amount of loss oi» 
 damage should be referred to arbitrators 
 whose award should be binding upon both 
 parties as to such loss or damage, held, that 
 although there was a written request of the 
 company for such appointment of arbitra- 
 tors, arbitration was not a condition prece- 
 dent to the right to sue: Oere v. Council 
 Bluffs Ins. Co., 67-372. 
 
 164. Waiver of notice: The provision of a 
 policy requiring notice of loss may be waived 
 by the insurer: Stevens v. Citizens' Ins. Co., 
 69-658. 
 
 165. Where an agent, while engaged in the 
 investigation of a loss, informs the owner 
 that written notice need not be given, such 
 waiver is binding on the company although 
 
920 
 
 INSURANCE, I, h. 
 
 Notice; proof of loss. 
 
 the policy provides that the company shall 
 not be bound by the acts and declarations 
 of its agents not contained in the policy: 
 Ibid. 
 
 166. Proofs of loss: Compliance with the 
 conditions of the policy as to furnishing 
 proofs of loss as a condition precedent must 
 be alleged and proved : Keenan v. Missouri 
 State Mmt. Ins. Co., 13-126. 
 
 167. Where the policy contains the stipu- 
 lation that the loss shall be paid after sixty 
 days from due notice and proof thereof, the 
 insured cannot recover vrithout such proof: 
 Mitchell V. Home Ins. Co., 32-431. 
 
 168. "Where the policy provides that the 
 loss shall not be payable until proofs of loss 
 are furnished, the production of such proofs 
 of loss is a condition precedent to plaintiff's 
 right to sue, and the performance of such 
 condition or its waiver must be averred: 
 Edgerly v. Farmers' Ins. Co., 43-587. 
 
 16!). Proofs of loss submitted to an insur- 
 ance company in accordance with the re- 
 quirements of its policy cannot be used in 
 evidence against the company in an action 
 under the policy; Neese v. Farmers' Ins. Co., 
 55-604. 
 
 1 70. A statement in the proofs of the ag- 
 gregate value of the property is sufficient, 
 unless objected to and a more particular 
 amount expressly or impliedly demanded: 
 Miller v. Hartford F. Ins. Co., 70^—. 
 
 171. The fact that the assured in making 
 proofs of loss fails to state the fact that he 
 has made an assignment of the amount due 
 under the policy for the loss, held not to con- 
 stitute false statements in the proofs, where 
 the only statement therein relating to such 
 matter was as to the amount claimed and 
 that the property insured belonged exclu- 
 sively to applicant : Lamb v. Council Bluffs 
 Ins. Co., 70 . 
 
 172. Where the policy prescribes that im- 
 mediate notice of the loss shall be given, and 
 that a particular account thereof shall also be 
 furnished, but the time for furnishing such 
 account or proofs is not prescribed, the ac- 
 count must be furnished within a reasonable 
 time, but the question as to what is a reason- 
 able time will depend upon the circumstances 
 of each particular case ; Miller v. Hartford 
 F. Ins. Co., 70 . 
 
 1 73. Provisions of this kind in the policy 
 
 should be construed strictly against the com- 
 pany: Ibid. 
 
 174. Parol evidence of the making of a 
 proof of loss may be received for the purpose 
 of establishing that fact, although not to 
 show the contents of such proof of loss until 
 the absence of the original is accounted for : 
 Bish V. Hawkey e Ins. Co., 69-184. 
 
 175. Waiver: The provision requiring, 
 proofs of loss being solely for the benefit of 
 the company may be waived : Eggleston v. 
 Council Bluffs Ins. Co., 65-308; Boyd v. 
 Cedar Rapids Ins. Co., 70 . 
 
 176. Mere silence on the part of the in- 
 surer with reference to proofs of loss will not 
 amount to a waiver: Keenan v. Missouri 
 State Mut. Ins. Co., 12-126. 
 
 177. If there is an attempt to perform the 
 condition requiring the filing of proofs of 
 loss, which does not amount to a perform- 
 ance, the failure to request other proofs or to 
 object to the sufficiency of those furnished 
 will not constitute a waiver: Ibid. 
 
 178. Where something purporting to be 
 proofs of loss is received by the company and 
 retained without specific objection, any ob- 
 jection which may have existed to such 
 proofs will be deemed waived : Bach v. State 
 Ins. Co., 64-595. 
 
 179. If the insurer or his authorized agent 
 makes no objection to the proofs upon one 
 ground, but refuses to pay upon other speci- 
 fied and distinct grounds, the objection upon 
 the ground not raised cannot be brought for- 
 ward at the trial in order to defeat recovery: 
 Ayres v. Hartford F. Ins. Co., 17-176: Ayres 
 V. Home Ins. Co., 31-185. 
 
 180. Where a specific objection is made to 
 the proofs of loss which is afterwards cured, 
 all other objections thereto will be deemed 
 waived: Williams v. Niagara F. Ins. Co., 
 50-561. 
 
 181. A positive and unqualified refusal to 
 pay, based upon facts within the company's 
 knowledge, and made under such circum- 
 stances as to justify the insured in believing 
 
 "that the rendition of proofs would be a vain 
 act, and that they would not be examined, 
 is equivalent to an express waiver : Boyd v. 
 Cedar Rapids Ins. Co., 70 . 
 
 182. So held as to refusal, on account of 
 non-payment of premium, to recognize any 
 liability whatever; and held, that the com- 
 
INSURANCE, I, h, i. 
 
 921 
 
 Proof of loss. — Limitation of actions. 
 
 pany could not afterward object that proofs 
 were not furnished within proper time : Car- 
 son V. Oerman Ins. Co., 63-433. 
 
 183. If proofs are submitted after the 
 time within which proofs are requu-ed to be 
 furnished, which the company promises to 
 consider, agreeing to notify assured of the 
 result of its examination, it will be estopped 
 from pleading the delay: Mickey v. Burling- 
 tmlns. Co., 33-174. 
 
 184. Acquiescence of the agent of the 
 company in the sufficiency of notice of loss 
 will not operate as a waiver of preliminary 
 proof; but under the facts in a particular 
 case, held, that something in addition to no- 
 tice, and intended as preliminary proof, hav- 
 ing been given the agent, and he having 
 been asked if anything further was required, 
 his answer in the negative constituted a 
 waiver of further proof, so far as he had 
 power to bind the company by such waiver : 
 Edgerlyv. Farmers' Ins. Co., 48-644. 
 
 185. Where waiver of preliminary proof 
 was relied on, held, that an averment of the 
 acceptance of a paper purporting to be such 
 jroof was sufficient to raise the question of 
 waiver; Ibid. 
 
 18G. Preli.minary proofs held properly ad- 
 mitted in evidence in connection with proof 
 of waiver by the company of any further 
 proof, but not as evidence as to extent of 
 plaintiff's damages : Ibid. 
 
 187. Statements by the agent of the com- 
 pany, in a particular case, refusing to pay the 
 loss for the reason that it was not from a 
 cause for which the company was liable, held 
 not sufficient to constitute a waiver of proof 
 of loss as to a cause of loss for which the 
 company was Uable : Cornett v. Phenix Ins. 
 Co., 67-388. 
 
 188. Where a waiver of proof of loss is al- 
 leged, plaintiff may be required on motion to 
 state whether such waiver was oral or in 
 writing, and what officer or agent undertook 
 to make such waiver : Webster v. Continental 
 Ins. Co., 67-393. 
 
 189. Objections on account of defects in 
 proof of loss are technical and without sub- 
 stantial merit, and insurer should make them 
 known with reasonable promptitude, to the 
 end that they may be perfected, if possible : 
 Young v. Hartford F. Ins. Co., 45-377. 
 
 190. Objections to the proofs not made 
 
 when they are furnished cannot be raised 
 afterward: Miller v. Hartford F. Ins. Co., 
 70 . 
 
 191. Frand: In a particular case, held, 
 that the evidence showed a false statement 
 in the proofs of loss sufficient to defeat re- 
 covery under the policy: Hansen v. Ameri- 
 can Ins. Co., 57-741. 
 
 192. Oyerv.aluation: An overestimate in 
 the proofs of loss of the value of the prop- 
 erty destroyed, if made honestly and in good 
 faith, will not constitute fraud precluding 
 the recovery on the policy : Stone v. Hawk- 
 eye Ins. Co., 68-737. 
 
 193. Proofs by agent: Where the policy re- 
 quired all persons insured to deliver an ac- 
 count of loss signed by their own hands, and 
 the preliminary proof was made by a person 
 not the insured, who stated that the insured 
 was a non-resident, was ignorant of the tire, 
 and that the proofs were therefore made for 
 him, held, that this might be sufficient, if the 
 person making the proof was in fact the 
 agent of the assured in charge of the prem- 
 ises, but not, unless the objection was waived, 
 if he was not such agent : Ayres v. Hartford 
 F. Ins. Co., 17-176. 
 
 194. Ne.irest magistrate: Under the pro- 
 visions of a policy that certificate of loss 
 thereunder should be made by the nearest 
 magistrate or notary public, held, in the ab- 
 sence of bad faith of insured in selecting the 
 officer, nice distinctions as to the distance 
 should not be indulged in: Williavis v. 
 Niagara F. Ins. Co., 50-561. 
 
 195. ImpossibUity: Where the policy re- 
 quired production by assured, in case of loss 
 by fire, of duplicate bills and invoices of 
 goods destroyed, held, that literal compli- 
 ance with such provision could not be re- 
 quired where it was impossible : Eggleston v. 
 Council Bluffs Ins. Co., 65-308. 
 
 i. JLimitation of actions. 
 
 196. Valid: Provisions in the contract of 
 insurance limiting the time within which 
 suit may be brought under the policy are 
 valid in the absence of controlling circum- 
 stances: Stout V. City F. Ins. Co., 12-371; 
 Carter v. Humboldt F. Ins. Co., 12-287. 
 
 197. Controlling circumstances: Where 
 the insured is required to prove the amount 
 
922 
 
 INSURANCE, I, i. 
 
 Limitation of actions. 
 
 of loss before being entitled to bring action 
 on the policy, and under the circumstances 
 it is not practical to make such proof within 
 the time limited, the limitation will not be 
 enforced. Therefore where the interest of 
 the insured was a mechanic's lien which it 
 was impossible to reduce to judgment within 
 the time specified for bringing suit, the con- 
 dition requiring it to be brought within the 
 time specified was held to be inoperative : 
 Stout V. CityF. Ins. Co., 13-371. 
 
 19S. "Where the interest of the assured is 
 such that with reasonable diligence the value 
 thereof cannot be legally ascertained in time 
 to bring an action on the policy within the 
 time fixed, the law will presume that in 
 granting such policy the company intended 
 to waive such condition limiting the time 
 for bringing action : Longhurst v. Star Ins. 
 Co., 19-364. 
 
 199. When period commences: Where 
 the policy provided that no action should be 
 brought thereon, unless commenced within 
 six months after loss, and contained a further 
 provision that the company should have 
 sixty days after due notice and proof of loss 
 within which to make payment, held, that 
 the six months during which action might be 
 brought must be construed to commence 
 with the expiration of the sixty days allowed 
 the company for making payment : Ellis v. 
 Council Bluffs Ins. Co., 64-507. 
 
 200. Where the policy provides that action 
 shall be commenced within one year after 
 the loss, and that the company will pay the 
 loss in sixty days after the proofs of loss are 
 furnished, but the time for furnishing proofs 
 of loss is not stipulated, the action is not 
 barred at the expiration of one year from the 
 time of loss: Miller v. Hartford F. Ins. Co., 
 70 . 
 
 201. The statutory provision (18 G. A., oh. 
 211, § 3; McCIain's Ann. Stat., 300, 301) that 
 no action shall be brought until ninety days 
 after giving notice of the loss and furnishing 
 proofs, does not operate to extend the period 
 of limitation fixed in the policy where proof 
 of loss is neither made nor waived : Cornett 
 V. Phenix Ins, Co., 67-388. 
 
 202. Where an action upon a policy was 
 brought within the time limited therein, 
 held, that the subsequent intervention of a 
 party who was entitled to a portion of the 
 
 recovery would not constitute the bringing 
 an action after the limitation in such sense 
 as to defeat such action : Stevens v. Citizen^ 
 Ins. Co., 69-658. 
 
 203. Waiver: The conditions of the policy 
 as to the time within which action may be 
 brought, being for the benefit of the com- 
 pany, may be waived by it : Bish v. Hawkeye 
 Ins. Co., 69-184. 
 
 204. The company may, by promises and 
 representations tending to indiice claimant 
 to refrain from bringing suit, estop itself 
 from afterwards setting up the fact that the 
 time for bringing suit has expired : Eggleston 
 V. Council Bluffs Ins. Co., 65-308. 
 
 205. And in a particular case, held, that if 
 delay in bringing suit until after the expira- 
 tion of the time was in consequence of in- 
 ducements held out to insured by the officers 
 of the company, making him believe that 
 the loss would be paid without suit, this fact 
 would operate to remove the bar created by 
 the terms of the policy : Ibid. 
 
 206. An agreement by the company as to 
 the amount of the loss and that it will be 
 paid by a particular time on the return of 
 the policy and receipt will not estop it from 
 afterwards insisting on the limitation as to 
 the time of bringing action, where, previous 
 to the expiration of the period of limitation, 
 it has notified insured that the claim will 
 not be paid : Garretson v. Hawkeye Ins. Co., 
 65-468. 
 
 207. An instruction that if insured was in- 
 duced, by the statements and rej)resentations 
 of the agent of the company to the effect 
 that the terms of the policy had been com- 
 plied with and that the settlement of the 
 loss would be made, to abstain from bring- 
 ing action until the expiration of the term 
 fixed by the policy, the defendant would be 
 presumed to have waived the conditions of 
 the policy and would be estopped from set- 
 ting up any defense based thereon, held 
 proper: Bish v. Hawkeye Ins. Co., 69-184. 
 
 a08. Not applicable to recovery of un- 
 earned premiums: The provision limitmg 
 the time within which action may be brought 
 for a claim under the policy is not applicable 
 to an action by the assured to recover back 
 premiums paid on a policy which is void 
 ab initio : Waller v. Northern Assurance Co., 
 64^101. " 
 
INSURANCE, I, j. 
 
 923 
 
 Authority of agents. 
 
 209. Demurrer: Advantage of the fact 
 that the action is not brought within the 
 time limited in the policy cannot be taken 
 by demurrer, but the objection must be 
 raised by plea. (Decided under former rules 
 of procedure): Carter v. Humboldt F. Ins. 
 Co., 12-287. 
 
 j. Authority of agents. 
 
 210. Gener.al agents: Agents of insurance 
 companies, who are empowered generally to 
 make policies, transfers, etc., are to be con- 
 sidered as general agents, and the corpora- 
 tions represented by them are bound by 
 their acts so far as they ai-e in the scope of 
 the general authority they possess, though in 
 violation of limitation upon that authority 
 not brought home to the party dealing with 
 them: Miller v. Phoenix Ins. Co., 27-203. 
 
 211. Authoritj': Under general authority 
 to conduct the business of insurance for his 
 principal at a certain place, an agent possesses 
 implied authority to do all things proper and 
 necessary in the prosecution of that business, 
 subject to limitations imposed by his princi- 
 pal and known to those with whom he deals. 
 He has also all the powers which by the 
 usages of the business are properly and or- 
 dinarily exercised by agents engaged therein, 
 and may therefore dispense with the condi- 
 tions and waive the effect of breach of war- 
 ranty in contract of insurance made by him : 
 Viele V. Germania Ins. Co., 26-9. 
 
 I Further as to authority to waive forfeit- 
 I ures, etc., see supra, I, f. 
 
 212. Notice to ngent taking the insurance 
 and who is authoi-ized to issue or countersign 
 policies, accept risks and receive premiums, 
 ianotice to the company : Williams v. Niag- 
 ara F. Ins. Co., 50-561. 
 
 213. Agreement without authority: An 
 insurance company is not bound by an agree- 
 ment of an agent who takes the appUcation 
 but has no authority to make such agree- 
 ment; for instance, an agreement varying 
 the terms of the policy as to the party to 
 whom the loss shall be payable : Baldwin v. 
 State Ins. Co., 60-497. 
 
 214. Authority to take one kind of risk 
 does not necessarily include authority to 
 take all kinds : Smith v. State Ins. Co., 58- 
 487. 
 
 215. An agent who is authorized to take 
 applications, receive and receipt for pre- 
 miums, and forward applications and pre- 
 miums, receive policies when issued and de- 
 liver them to assured, but nothing further, 
 has no such authority as to bind the com- 
 pany for a contract of insurance not assented 
 to by it: Armstrong v. State Ins. Co., 61- 
 313. 
 
 216. The fact that the agent is required to 
 countersign policies issued by the company 
 will not confer upon him any power to bind 
 the company for a contract of insurance be- 
 fore the issuance of any policy : Ibid. 
 
 217. The appointment of a person to solicit 
 insurance will not give him power to pass 
 upon risks or bind the company by his written 
 consent to the assignment of the policy: 
 Strickland v. Council Bluffs Ins. Co., 66-466. 
 
 218. Acts and declarations of an agent 
 whose business it is to take applications, 
 where such acts and declarations are subse- 
 quent to the taking of the application and at 
 the time of the destruction of the property, 
 are not competent to establish a contract of 
 insurance: Walker v. Farmers' Ins. Co., 51- 
 679. 
 
 210. An insurance company may reject 
 applications made through an agent, and a 
 failure of the agent to return a premium 
 paid with the application will not operate to 
 render the risk binding where the fact of re- 
 jection is known to the applicant and the 
 premium is left in the hands of the agent 
 while a reconsideration of the application is 
 asked: Otterbein v. Iowa State Ins. Co., 57- 
 274. 
 
 220. Ratiflcation: Where an agent agreed 
 to insure property, but it was not specified 
 what company insurance should be taken in, 
 held, that a subsequent issuance of a policy 
 in the defendant company, and the accept- 
 ance of the benefit therefrom in its behalf, 
 amounted to a ratification binding it to the 
 contract: Young v. Hartford F. Ins. Co., 
 45-377. 
 
 221. Filling out applications: Where the 
 local agent of an insurance company has 
 authority only to receive and forward ap- 
 plications, parol evidence is not admissible to 
 show that in a particular case he failed to 
 take down the statements or changed them. 
 By signing the application the applicant 
 
924 
 
 INSUEANCE, I, j. 
 
 Authority of agents. 
 
 makes it his own. But if the agent has 
 power to pass upon the risk withoilt submit- 
 ting it to his principal, and fails to take down 
 the facts as stated by the applicant, in igno- 
 rance of which such application is signed, 
 and there is no statement in the policy that 
 the insurer will not be bound by the acts or 
 knowledge of the agent or by statements to 
 or by him, the insurer will be estopped from 
 objecting that he has been misled by the 
 statements in the application: Ayres v. Hart- 
 ford F. Ins. Co., 17-176; Ayres v. Some l7is. 
 Co., 21-185. 
 
 222. Where insured stated in his applica- 
 tion that there was no incumbrance on the 
 
 ' property, and shortly afterwards met the 
 agent, who took the application and corrected 
 his statement, and the agent wrote the com- 
 pany on the date of such correction, and two 
 or three days afterwards the policy was re- 
 ceived by insured, held, that if the company 
 received the information before it sent the 
 policy, it became an amendment of the appli- 
 cation and made it true, and if it did not re- 
 ceive such application until the policy was 
 sent, it should have returned the premium 
 note and demanded the surrender of the 
 policy ; and it is questionable if it could avail 
 itself of the mistake, after loss, upon failure 
 to do so. , But, at any rate, the agent being 
 the agent of the insurer in respect to the ap- 
 plication, notice to the agent wiU be notice to 
 the company and the policy will be valid: 
 Anson v. Winnesheik Ins. Co., 23-84. 
 
 223. But if the agent taking the applica- 
 tion in such case had no power except to 
 take and forward applications, then the com- 
 pany would not be bound : Ibid. 
 
 224. One who receives and forwards ap- 
 plications will be regarded as an agent of 
 the insurer, and if the applicant knows or has 
 reason to know that such agent has simply 
 power to take and forward applications; 
 and that such application is to be forwarded 
 and submitted to the company as the sole 
 basis of its accepting the risk, he must see 
 that its representations are not untrue. But 
 if the agent furnishes and undertakes to fill 
 up the application, and being correctly in- 
 formed respecting an incumbrance the in- 
 sured is led to suppose that his answers have 
 been truly taken down, and by the fault of the 
 agent he does not know to the contrary, then 
 
 the company having i-eceived the premium 
 cannot avoid liability because of the exist- 
 ence of the incumbrance: Bartholomew v. 
 Merchants' Ins. Co. , 25-507. 
 
 225. Where the applicatioji is signed in 
 blank and filled up by the agent of the com- 
 pany on his own motion without the knowl- 
 edge of the assured, the latter will not be 
 bound by the answers, and the signing of 
 the application in blank will not be considered 
 as giving the agent authority to fill such 
 blanks for the applicant, but it will rather 
 be considered that the applicant supposes 
 answer to the questions are waived : Hings- 
 ton V. Mtna Ins. Co., 43-46. ■ 
 
 226. A false statement in the application 
 for insurance, if written in the application by 
 the company's soliciting agent without the 
 knowledge of insured, the insured having 
 made truthful answers to such questions as 
 were asked him by the agent, will not defeat 
 recovery under the policy. The agent is 
 deemed to have written the application in 
 the performance of his duties as agent, and 
 if the company is deceived or misled by 
 such statements, the loss should not fall upon 
 the insured who is without fault. The in- 
 sured is not charged in such case with the 
 duty of seeing that the statements are cor- 
 rectly written by the agent : Stone v. Hawk- 
 eye Ins. Co., 68-737. 
 
 227. If an agent having authority to soUcit 
 insurance and forward applications fills up 
 answers in an application from his own 
 knowledge, the company will not be allowed 
 to rely upon misstatements made in such an- 
 swers as a breach of warranty avoiding the 
 policy: Donnelly v. Cedar Rapids Ins. Co., 
 70 . 
 
 228. Parol evidence is admissible to show 
 that assured con-ectly stated the fact of in- 
 cumbrance on the property to the solicitor 
 taking the application, and the company is 
 bound by knowledge of or notice to a solicit- 
 ing agent having power to fill up applications 
 and receive and forward premiums : Boetcher 
 V. Hawkeye Ins. Co., 47-353. AndseeMHer 
 V. Mutual Benefit L. Ins. Co., 31-316. 
 
 229. Personal knowledge of an agent hav- 
 ing authority to take risks and fill out ap- 
 plications will be imputed to the company, 
 and it wiU be estopped from claiming that 
 representations in the application as to 
 
INSURANCE, I, j, k; II. 
 
 925 
 
 Agents. — Companies. — Life. 
 
 which the agent has knowledge render the 
 policy void : Eggleston v. Council Bluffs Ins. 
 Co., 65-308. 
 
 230. Where an agent was also a notary 
 public, held, that knowledge acquired by 
 him while acting as notary in reference to 
 other business prior to the issuance of the 
 policy, and not sufficiently near to the issu- 
 ance of the policy to justify the inference 
 that at that time he had in mind the facts 
 coming to his knowledge as notary, would 
 not be imputed to the company : Stennett v. 
 Pennsylvania F. Ins. Co., 68-67.4. 
 
 231. Authority to waive notice or proofs 
 of loss: Where a policy provided that pre- 
 liminary proofs should be delivered at the 
 office of the company, and something pur- 
 porting to be such proofs was delivered there 
 to the adjusting agent of the company, occu- 
 pying the office, which was accepted by him 
 as sufficient, held, that this acceptance was a 
 waiver of any defect therein, binding upon 
 the company, unless his authority in that re- 
 spect was expressly limited, and assured had 
 notice of the fact : Edgerly v. Farmers' Ins. 
 Co., 48-644. 
 
 232. An agent authorized by the company 
 to investigate a loss has power to waive no- 
 tice of loss, although the policy provides that 
 the company shall not be bound by the acts 
 or declarations of its agents not contained in 
 the policy: Stevens v. Citizens' Ins. Co., 69- 
 658. 
 
 233. Authority to waive forfeiture: The 
 waiver of forfeitm-e can be inferred from the 
 acts of the agent only in cases where he is 
 expressly authorized to waive or to do such 
 acts that in law amount to a waiver; and 
 where such waiver is claimed, the authority 
 of the agent must be shown : Hollis v. State 
 Ins. Co., 65^54. 
 
 234. The fact that a local agent knew of 
 the assignment of the property insured and 
 did not object thereto, he never having been 
 asked to consent, and it not appearing that 
 he had power to waive express conditions 
 of the policy, held not sufficient to show 
 waiver of the forfeiture caused by such 
 transfer :^2/ers);. HartfordF. Ins. Co., 17-176. 
 
 k. Statutory provision as to eompanies. 
 
 235. Non-compliance as to method of 
 doing business: The failure of an insurance 
 
 company to comply with the requirements 
 of statute with reference to doing business 
 does not, of itself, operate to close the busi- 
 ness of the company and its officers. Al- 
 though they may not take any more risks 
 until the requirements of the law are com- 
 plied with, they have authority to indemnify 
 the company by re-insurance for any risks 
 already taken: Davenport F. Ins. Co. v. 
 Moore, 50-619. 
 
 236. Ke-insur.nnee: An insurance com- 
 pany jnay effect re-insurance on its risks in 
 another company, and pay off such risks by 
 transferring to the company in which such 
 re-insurance is effected premium notes 
 owned by it : Ihid. 
 
 237. Service upon agents: A foreign in- 
 surance company having, in accordance with 
 the requirements of the statute (Code, g 1144), 
 designated agents in the state to acknowl- 
 edge service of process for it, service may be 
 made upon any of such agents within the 
 state, irrespective of the place of bringing 
 action,: Niagara Ins. Co. v. Rodecher, 47-163. 
 
 238. Defense to note given for insurance: 
 To render a note given for insurance void in 
 the hands of an innocent holder (under the 
 provisions of the Code, § 1146, that notes 
 taken for policies of insurance shall state 
 upon their face that they have been given 
 for insurance, and shall not be collectible 
 unless the company or its agents have fully 
 complied with the laws of the state relative 
 to insurance), it is necessary that the fact 
 that the note was so given be made to ap- 
 pear npon its face: CooA; v. Weirman, 51- 
 561. 
 
 II. Life. 
 
 239. Charter and rules of mutual com- 
 pany: Members of a mutual company are 
 presumed to have knowledge of its articles of 
 incorporation and by-laws, but not of regula- 
 tions adopted by officers for the transaction 
 of business, such, for instance, as instructions 
 to officers and agents as to the discharge of 
 their duties: Walsh v. Mtna L. Ins. Co., 30- 
 133. 
 
 To same effect, see supra, §§ 14-18. 
 
 240. Circulars or books issued by an insur- 
 ance company are admissible in evidence as 
 publications made to the world as to the rules 
 governing the company in its business, and 
 
926 
 
 INSURANCE, U. 
 
 life. 
 
 therefore binding upon it : Walsh v. ^tna L. 
 Ins. Co., 30-133. 
 
 241. Noii-i)ayment of premium; notice: 
 Where a hf e insurance company: has given a 
 policy-holder reasonable ground for expect- 
 ing that he will be advised when his premium 
 shall become due, the company must con- 
 tinue to give such notice until the insured is 
 notified that he need no longer expect it: 
 Mayer V. Mutual L. Ins. Co., 88-304. 
 
 242. A policy of Ufe insurance considered 
 in a particular case, and held not to require 
 payment of premium notes, but only pay- 
 ment of interest thereof, the principal to be 
 paid by dividends or by deduction from pro- 
 ceeds of the policy : Ohde v. Northwestern L. 
 Ins. Co., 40-357. 
 
 243. Forfeiture for non-payment: Where 
 the policy provided that if the premium 
 should not be paid on the dates mentioned 
 for the payment thereof at the office of the 
 company in New York or to agents produc- 
 ing receipts signed by the president, then the 
 company should not be liable, held, that mere 
 failure to pay, although the demand was not 
 made by any agent of the company having 
 a receipt for the premium, would forfeit the 
 policy: Williams v. Washington L. Ins. Co., 
 31-541. 
 
 244. Under a beneficiary certificate in a 
 Eoman Catholic Protective Association, by 
 the constitution of which the rights of a 
 member should be forfeited on account of 
 neglect of his Easter duties (shown to mean 
 attendance at the confessional, etc.), held, 
 that tlie evidence was not sufficient to show 
 neglect of such duties so as to render the cer- 
 tificate void: Mattv. Roman Catholic Mut., 
 etc., Soc'y, 70 . 
 
 245. The failure of assured by reason of 
 sickness to make payment of the premium 
 at the time specified in the policy, by reason 
 of which the policy becomes forfeited, can- 
 not be excused on account of the impossi- 
 bility of doing the act. Such act might 
 have been performed by others in behalf of 
 the assured: Carpenter v. Centennial Life 
 Ass'n, 68-458. 
 
 246. Waiver: A proposition from the com- 
 pany to accept payment of dues and waive 
 forfeiture already incurred by reason of 
 their non-payment implies such payment 
 within a reasonable time ; and where, after 
 
 such proposition was made, the insured did 
 not transmit the delinquent dues untif the 
 expiration of twenty-three days, held, that 
 such payment was not within the terms of 
 the proposition, and the company was under 
 no obligation to accept it and reinstate the 
 insured : Servoss v. Western Mut. Aid Soc'y,\ 
 67-86. 
 
 247. Therefore, held, that where the com- 
 pany, on such payment being made long 
 after the proposition to reinstate insured was 
 made, sent him a receipt therefor, contain- 
 ing a stipulation that the policy was con- 
 tinued in force provided the insured was 
 then alive and in good health, and he was 
 then in fact suffering from illness which soon 
 afterwards terminated fatally, the forfeiture 
 was not waived : Ibid. 
 
 248. A mutual benefit association cannot 
 avoid liability for loss under one of its poli- 
 cies, on the ground that the contract was 
 void from the very beginning on account of 
 its want of power to enter into such a con- 
 tract, when at the same time it has collected 
 assessments thereon : Matt v. Roman Catho- 
 lic Mut., etc., Soc'y, 70 . 
 
 249. Assessments: Under the constitution 
 and by-laws of a mutual company providing 
 that no member should be entitled to the 
 benefits of the insurance if he did not comply 
 with the regulations relating to payment of 
 death assessments, held, that before the mem- 
 ber could be in default for failure to pay 
 such assessments, they must be regularly 
 made as required by the regulations of the 
 association, and that the custom of making 
 such assessments in another manner would 
 not, in the absence of knowledge by a mem- 
 ber, defeat his rights: Underwood v. Iowa 
 Legion of Honor, 66-134. 
 
 250. Construction of policy: A policy of 
 insurance is to be construed strictly against 
 the insurer : Miller v. Mutual Benefit L. Ins. 
 Co., 31-316. 
 
 And see supra, § 173. 
 
 251. Assignment: Where a wife having 
 made an assignment in blank of a policy on 
 her husband's. life for a particular purpose, 
 the husband delivered the same to the as- 
 signee in good faith for a different purpose 
 from that intended, held, that the wife could 
 not question the validity of the assignment 
 and recover possession of the policy from the 
 
INSURANCE, II. 
 
 927 
 
 Life. 
 
 assignee: Plummerv. People's Nat. Bank, 65- 
 405. 
 
 252. Staleineiits in application: Where 
 the policy states that it is issued upon the 
 faith of statements in the application, with a 
 stipulation that if they shall be found in any 
 respect untrue the policy shall be void, the 
 materiality of such statements cannot be 
 raised by the party suing on the policy. They 
 become warranties that they are true in every 
 particular, whether material or not : Wilkin- 
 son v. Connecticut Mut. L. Ins. Co., 30-119. 
 
 253. The language of questions asked of 
 an applicant for insurance is to have a rea- 
 sonable construction in view of the purposes 
 for which the questions are asked, and such 
 a construction is to be put upon them as a 
 person of ordinary understanding would put 
 upon them, if asked him for answer : Ibid. 
 
 254. Therefore, held, that a negative an- 
 swer to the question, " Has the person ever 
 met with any accident or serious injury ? " 
 would not avoid the policy, although some 
 years prior to the application the insured 
 had received injury from a fall, which was 
 simply temporary and passed off entirely in 
 a few days without impairing his subsequent 
 health: Ibid. 
 
 255. TVarranties and representations: A 
 warranty constitutes a part of the contract, 
 and it is necessary that it shall be exactly 
 and literally complied with, but a i-epresen- 
 tation is collateral to the contract, and it is 
 sufficient if it be equitably and substantially 
 comphed with. Moreover, in case of war- 
 ranty, the burden of proof is upon the party 
 seeking indemnity to establish a case in all 
 respects in conformity with the terms junder 
 which the risk is assumed ; but in case of a 
 representation the burden is cast upon de- 
 fendant to set forth and prove the collateral 
 fact upon which he relies : Miller v. Mutual 
 Benefit L. Ins. Co., 81-316. 
 
 256. In considering whether a part of the 
 contract is a warranty, the rule is that a 
 warranty will not be created or extended by 
 construction. The application for insurance 
 is in itself merely collateral and not a con- 
 tract of insurance, and its statements are to 
 be considered as representations unless con- 
 verted into warranties by force of a refer- 
 ence to them in the policy and a clear purpose 
 manifest in the papers thus connected, that 
 
 the whole shall form one entire contract: 
 Ibid. ^ 
 
 25 7. While the substantial truth of repre- 
 sentations is all that is necessary to be shown 
 and this question is one for the jury, yet 
 where the representation is made in response 
 to a direct question asked in the application, 
 the materiality of such representation can- 
 not be questioned, and is not for the jury to 
 determine: Ibid. 
 
 258. Where the defense of fraud is inter- 
 posed in an action upon a policy on the 
 ground of statements made to insurer by in- 
 sured in the application, and is based upon 
 the statements of others together with those 
 of insured, such other statements should be 
 considered in determining the question of 
 fraud: Ibid. 
 
 259. Intemperance: To establish a defense 
 under a policy providing that there shall be 
 no liability for death caused by intemperate 
 habits, it must be shown that the sole or par- 
 amount cause of the death was intemper- 
 ance. It is not sufficient that the life of the 
 insured was merely shortened by the use of 
 intoxicating liquors, where such use is not 
 the cause of the death : Ibid. 
 
 260. Where it appeared that the death of 
 the assured was caused by inflammation of 
 the brain and lungs, due to intemperance 
 and exposure resulting therefrom, held, that 
 there was no liability under the policy which 
 contained a provision that it should be void 
 if assured should die by reason of intemper- 
 ance: Miller V. Mutual Benefit Ins. Co., 34r- 
 222. 
 
 261. Evidence considered in an action upon 
 a policy of life insurance, and held sufficient 
 to show that the death resulted from the in- 
 temperate habits of assured within the terms 
 of the exceptions in the policy: Miller v. 
 Mutual Benefit L. Ins. Co., 39-304. 
 
 262. Fraud: If an insurance company is- 
 sues a policy upon a risk greater than the 
 ordinary one, with full knowledge of all the 
 facts, it cannot escape liability by proof of 
 the nature of the risk : Miller v. Mutual Bene- 
 fit L. Ins. Co., 31-316. 
 
 263. Waiter of conditions: A forfeiture 
 by reason of violation of the restriction in 
 the policy as to place of residence may be 
 waived. Any acts inducing assured to be- 
 lieve that the condition is dispensed with or 
 
928 
 
 INSURANCE, II. 
 
 Life. 
 
 the forfeiture waived will be sufficient to 
 establish a waiver; Walsh v. JEtna L. Ins. 
 Co., 30-133. 
 
 264. The receipt of preraiums upon a policy 
 after knowledge of acts which work a for- 
 feiture thereof constitutes a waiver of such 
 forfeiture: Ihid. 
 
 265. Knowledge of agent: An insurance 
 company transacting business through an 
 agent having authority to solicit, make out 
 and forward applications, to deliver policies 
 when returned, and to collect and transmit 
 premiums, is affected by the knowledge ac- 
 quired by such agent when engaged in pro- 
 curing an application, and is bound by his 
 acts done at that time with respect thereto : 
 Miller v. Mutual Benefit L. Ins. Co., 31- 
 216. 
 
 266. Waiver by agent: Where a company 
 permits its agent to act in the collection of 
 preraiums and he receives premiums after 
 they have become due, the company will be 
 bound by his agreement as to the waiver of 
 time of payment provided for in the policy : 
 Mayer v. Mutual L. Ins. Co., 38-304; Walsh 
 V. JEtna L. Ins. Co., 30-133. 
 
 2 1) 7. If, without knowledge of any limita- 
 tion on the power of such agent to issue per- 
 mits to reside within limits not allowed by 
 the terms of the policy, payments are made 
 under such permits and accepted by him, 
 under the belief that he has full power to 
 act and that the permit has been granted, 
 the company is bound by his acts : Walsh v. 
 JEtna L. Ins. Co., 30-133. 
 
 268. Power to extend policy: The receipt 
 by the agent of an extra premium upon an 
 application for extension of the privilege of 
 a policy, and the execution of an acknowl- 
 edgment thereof, may not of themselves be 
 binding upon the company as an extension 
 of the policy : Ibid. 
 
 261). Disposition of proceeds: The statu- 
 tory provision (Code, § 1182) that a policy of 
 insurance on the life of an individual shall, 
 in the absence of an agreement or assign- 
 ment to the contrary, inure to the separate 
 use of the husband or wife or children of 
 said individual independently of his or her 
 creditors, contemplates a case where the pol- 
 icy is payable to deceased, or his or her legal 
 representatives, and not a case where the 
 policy is payable to another person for his 
 
 use and benefit, in which case it cannot be 
 otherwise disposed of by will: McClure v. 
 Johnson, 56-620. 
 
 270. Where the contract of insurance pro- 
 vides the method by which insured may 
 change the beneficiary entitled to the pro- 
 ceeds of the policy, and such method is not 
 pursued, a direction in the will of the as- 
 sured making such change will be without 
 effect : Stephenson v. Stephenson, 61-534. 
 
 271. Where absolute power is given to a 
 member of a mutual benefit association to 
 designate who the beneficiary shall be, such 
 direction cannot be disregarded, although 
 the articles of incorporation of the associa- 
 tion provide that its object shall be to provide 
 for the widows and orphans of deceased 
 members, and the beneficiary designated is 
 not a widow or child of the deceased mem- 
 ber : Mitchell v. Cfrand Lodge, 70 . 
 
 272. The assured cannot by direction in 
 his will provide for payment of the proceeds 
 of a policy on his life to another beneficiary 
 than the one mentioned in the policy. The 
 contract with the company cannot thus be 
 altered without its consent: Wilmaser v. 
 Continental L. Ins. Co., 66-417. 
 
 273. Where a decedent left a wife but no 
 children, held, that under the statutory pro- 
 vision above referred to the proceeds should 
 go to the wife alone and not be divided 
 among all the distributees of his estate: 
 Rhode V. Bank, 52-375. 
 
 274. The proceeds of the policy, when real- 
 ized by the person entitled thereto, are not 
 exempt from execution for the debts of such 
 person. The exemption exists only as to the 
 debts of the person insured : Smedley v. Felt, 
 43-607; Murray v. Wells, 53-256. 
 
 275. In a particular case held that the evi- 
 dence did not show a contract to subject the 
 proceeds of a life policy to the payment of a 
 debt : Serriman v. McKee, 49-185. 
 
 276. Where the proceeds of a policy of fife 
 insurance are used to release other property 
 from a claim under which it is held, the 
 property so released becomes subject to the 
 payment of debts : Friedlander v. Mahnney, 
 31-811. 
 
 277. The proceeds of a life poUcy are 
 assets of the estate, and only differ from 
 other assets in the manner of their distribu- 
 tion : Kelley v. Mann, 56-625. 
 
INSURANCE, III— INTEREST, I, a. 
 
 929 
 
 Accident insurance. — Lawful interest. — In general. 
 
 278. Statutory provisions as to method 
 of business: In an action to close the busi- 
 ness of a corporation for failure to comply 
 with the provisions of the statute with refer- 
 ence to the method of doing business, it 
 must be assumed that the corporation ijduly 
 organized: State ex rel. v. Iowa Mut. Aid 
 Ass'n, 59-125. 
 
 279. Mutual aid associations organized 
 to afford financial aid and benefit to the fam- 
 ilies of deceased members, and assistance to 
 members personally in case of sickness or 
 disability, are not within the statutory pro- 
 visions as to life insurance companies : Ibid. 
 
 280. Under the constitution of the associa- 
 tion known as the Ancient Order of United 
 Workmen, held, that such association, not- 
 withstanding its fraternal character, was in 
 effect a mutual insurance company, and that 
 the supreme lodge of that corporation, being 
 incorporated under the laws of Kentucky, 
 was not authorized to exercise any powers 
 or do business in Iowa without compliance 
 with the laws of Iowa with reference to life 
 insurance companies : State ex rel. v. Miller, 
 66-26. 
 
 III. Accident. 
 
 281. Negligence: Facts in a particular 
 case held sufficient to show negligence on 
 the part of a passenger such as to defeat his 
 recovery under a policy of accident insur- 
 ance against injuries occurring while " riding 
 on a public conveyance provided by cqmmon 
 carriers, . , . and in compliance with 
 all rules and regulations of such carriers, 
 and not neglecting to use due diligence for 
 self-protection:" Bon v. Bailway Passenger 
 Assurance Co., 56-664. 
 
 282. Disability : Where a policy of acci- 
 dent insurance provided for indemnity in a 
 certain sum per week against loss of time by 
 accident while totally disabled and prevented 
 from the transaction of all kinds of business, 
 held, that it was error to instruct the jury in 
 such manner as to allow a recovery for par- 
 tial disability in reference to some particular 
 occupation : Lyon v. Railway Passenger As- 
 surance Co., 46-631. ^ 
 
 283. Notice: Where the policy required 
 that, in the event of bodily injury or death, 
 immediate notice should be given to the 
 company, held, that the giving of such notice 
 
 Vol. 1 — 59 
 
 was a condition without which the company 
 would not be liable, and that as to whether 
 notice was given in proper time was a ques- 
 tion for the jury : Ihid. 
 
 INTEREST, 
 
 I. Lawful interest. 
 
 a. In general. 
 
 b. Interest upon interest, 
 
 c. At what rate. 
 
 d. Mlien interest commences to run. 
 II. Usury. 
 
 a. In general of contracts held to be 
 
 usurious. 
 
 b. Effect of usury on the contract. 
 
 c. Purging contracts of usury. 
 
 d. Who may set up the defense. 
 
 e. T}drd parties as affected by, 
 
 f. Usury, when paid. 
 
 g. Conflict of latvs. 
 
 h. Pleadings and evidence. 
 
 i. Forfeiture; judgment and costs. 
 
 When interest may be allowed as damages, 
 see Damages, I, f . 
 
 As to prayer for interest, and as to includ- 
 ing interest in judgment, see Pleadings, 440- 
 443. 
 
 As to allowance of interest against parties 
 chargeable with moneys in their hands, see 
 Estates of Decedents, §g 447, 448 ; Trusts, 
 g§ 000-000 ; Gaenishmbnt, § 111 ; Guardian- 
 ship, gg 84-86 ; Attorneys, §§ 73-74. 
 
 Construction of stipulations for interest, 
 see Bills and Notes, §§ 55-59. 
 
 I. Lawful inteeest. 
 
 a. In general. 
 
 1. Interest is chargeable upon all debts, 
 
 unless exempted therefrom by contract. 
 When money is paid for the use of another, 
 imposing an obligation upon the party who 
 receives the benefit of the payment to reim- 
 burse the party paying, interest is i-ecover- 
 able from the date of the payment: Oood- 
 now V. Litchfield, 63-275; Goodnowv, Wells, 
 67-654. 
 
 2. Partial payments; computation: When 
 the payment exceeds the interest, calculate 
 interest on the principal up to the date of 
 
930 
 
 INTEREST, I, a, b, c. 
 
 In general.— Interest upon interest. — At what rate. 
 
 payment, add this interest to the principal 
 and then deduct the payment. If the pay- 
 ment falls short of the interest due, calculate 
 the interest on the principal up to the time 
 when the payments will exceed the interest 
 due on the principal debt, and then deduct 
 the payment, so as to avoid taking interest 
 upon interest: Sunerv. Doolittle, 3G. Gr., 76. 
 
 3. Interest not claimed: To recover in- 
 terest on an account it should be averred in 
 the declaration and specified in the bill of 
 particulars: David v. Conard, 1 G. Gr., 336. 
 
 4. Effect of war SBspendliig payments: 
 As to whether a debt due from a resident 
 of a loyal state to a resident of a state in se- 
 cession continued to draw interest while 
 payment was rendered impossible by reason 
 of the war, the court were equally divided : 
 Griffith V. Lovell, 26-226. 
 
 5. Money wrongfully used or detained: 
 An attorney who receives money for his 
 client, and neither puts it upon deposit nor 
 keeps it ready for demand, but uses it as his 
 own, will be chargeable with interest thereon : 
 Mansfield v. Wilkerson, 26-482. 
 
 And see Attorneys, g§ 72-74. 
 
 6. Where money was paid into court to 
 await its order, and there detained because 
 of the erroneous order of the court, held, 
 that the party finally found entitled thereto 
 could not recover interest for the time of de- 
 tention, it not appearing that the opposite 
 party had not acted in good faith : Van Gor- 
 don V. Ormsby, 60-510. 
 
 7. Payment defeated by frand: Where it 
 was agreed by the mortgagee that the mort- 
 gaged premises should be reconveyed to him 
 in satisfaction of the mortgage, and by fraud 
 of the mortgagee's agent, and without wrong 
 on the part of the mortgagee, such recouvey^ 
 anoe was made to the agent instead of to the 
 mortgagee, held, that although the reconvey- 
 ance was void and the mortgage still in force, 
 yet the mortgagee could not recover interest 
 subsequent to the date that the reconveyance* 
 was made : Hait v. Ensign, 61-724. 
 
 8. Double damages: In an action against 
 a railway company for double damages for 
 stock killed, it is error to allow interest in 
 addition to the damages allowed: Brentner 
 V. Chicago, M. & St. P. R. Co., 58-625. j 
 
 9. Compound interest included in settle- 
 ments: A debtor under a deed of trust was 
 
 found to have assented to certain settlements 
 made during the existence of the trust deed, 
 by which settlements he allowed compound 
 interest at short rests, and also certain attor- 
 neys' fees, for the purpose of preventing a sale 
 of the trust property at inopportune times and 
 at a sacrifice. Held, that the debtor was not 
 concluded by the settlements so made, but 
 that he should be charged with simple interest 
 compounded only according to the legal rule 
 at each payment exceeding the interest then 
 due: Focklerv. Beach, 32-187. 
 
 10. Illegal interest: As the consideration 
 of a note, illegal interest, unlike usury, can- 
 not be urged against an innocent assignee 
 before maturity : Burrows v. Cook, 17-486. 
 
 b. Interest upon interest. 
 
 11. Payable annually: Where the inter- 
 est upon a note is made payable annually, 
 each instalment of interest will draw inter- 
 est at six per cent, from the time it is pay- 
 able: Mann v. Cross, 9-327; Preston v. 
 Walker, 26-205; Burrows v. Stryker, 47-477; 
 White V. Savery, 50-515. 
 
 12. If the interest is not made payable an- 
 nually or at a specified time, it will not draw 
 interest even f I'om the time of the maturity 
 of the principal: Aspinwallv. Blake, 25-319. 
 
 13. The parties may, by contract, stipulate 
 that interest which is made payable annu- 
 ally, quarterly, or otherwise, shall bear in- 
 terest p.t the rate of ten per cent, from the 
 time it is due : Pagan v. Day, 46-239. 
 
 14. Lex loci: Interest upon annual in- 
 stalments of interest may be collected under 
 the decisions of this state, and it matters not 
 that the contract itself was made under the 
 laws of a state where interest on instalments 
 of interest was not allowed to draw interest : 
 Burrows v. Stryker, 47-477. 
 
 c. At what rate. 
 
 15. Interest after judgment: Judgment 
 on a contract stipulating for the payment of 
 interest will draw interest at the same rate 
 as that stipulated in the contract : Wilson v. 
 King, Mor., 106. 
 
 16. But so far as the judgment covers inter- 
 est only, in the absence of any agreement in 
 the contract that interest shall draw interest. 
 
INTEREST, I, c. 
 
 931 
 
 At what rate. 
 
 the judgment will draw interest only at six 
 per cent. : Burkhart v. Sappington, 1 G. 
 Gi-., 66. 
 
 17. Ten per cent, should not be allowed 
 upon a judgment where the contract speci- 
 fies no rate : Easley v. Redpath, 9-300. 
 
 18. Where a member of a partnership 
 ■which had previously been dissolved paid a 
 portion of a judgment against the partner- 
 ship which the other partner, by the terms of 
 the dissolution, was bound to pay, and then 
 sought to recover from such other partner 
 the amount so paid, held, that the rate of 
 interest to be allowed was not the rate drawn 
 by the judgment paid, but merely the legal 
 rate, there being no evidence of an agree- 
 ment to pay any particular rate: Myers v. 
 Smith, 15-181. 
 
 19. Unless a different rate of interest is ex- 
 pressed in the judgment or the decree, but 
 six per cent, can be collected thereon, al- 
 though the contract oh which the judgment 
 is rendered bears ten per cent. If the failure 
 to express the higher rate of interest in the 
 judgment is owing to mistake or oversight of 
 the clerk, the judgment may be corrected in 
 Va^t respect by timely and proper proceed- 
 ings. But after the amount of judgment 
 with six per cent, interest thereon has been 
 paid, the judgment cannot be enforced for 
 an additional amount against the property 
 upon which it was a lien: Rice v. Hulbert, 
 67-734. 
 
 20. Damages: It is incompetent for the 
 court to allow a higher rate than six per 
 cent. , even as damages on a money demand, 
 unless the parties otherwise agree in writing : 
 Vennum v. Gregory, 21-326. 
 
 21. Where the jury are directed to allow 
 interest, without any instruction as to the 
 amount, it will be presumed that they under- 
 stand that interest is to be allowed at six per 
 cent. : Davis v. Walter, 70 . 
 
 22. Affidavits of jurors ai'e receivable to 
 show whether or not the jury included in- 
 terest in their verdict : Swails v. Cissna, 61- 
 693. 
 
 23. After maturity of note or contract: 
 A note providing for interest at ten per cent, 
 per annum from date draws interest at that 
 rate after as well as before maturity : Hand 
 V. Armstrong, 18-334; Liuoas v. Picket, 30- 
 490. 
 
 24. Where it was provided in a contract 
 that a sum of money advanced and invested 
 in behalf of one party by the other should be 
 repaid within one year with interest thereon, 
 held, that upon a subsequent waiver of the 
 provisions of the contract requiring repay- 
 ment to be made within a year, the sum of 
 money advanced continued to draw interest 
 at the same rate until repaid : Warren v. Ew- 
 ing, 34-168. 
 
 25. Where a party holding a bond for a 
 deed accepted, in conditional payment of the 
 purchase money provided for therein, obliga- 
 tions of third parties which were not paid, 
 and afterwards brought suit against the other 
 party to the bond to recover the amount thus 
 remaining unpaid, held, that he might thus 
 recover the rate of interest stipulated in the 
 bond : Huse v. MoDaniel, 33-406. 
 
 26. Conflict in note and mortgage: Where 
 a note stipulated that if interest was not paid 
 annually, the same should become a part of 
 the principal and bear the same rate of inter- 
 est, and the mortgage contained the condi- 
 tion that if default should be made in the 
 payment of the sums of money specified 
 therein or any part thereof, principal or in- 
 terest, then the whole amount of the indebt- 
 edness should become due, held, that payment 
 of annual interest was not required, and that 
 the whole amount of the indebtedness did 
 not become due on failure to pay such inter- 
 est annually : Wood i'. Wliisler, 67-676. 
 
 27. Indemnity bond: In an action on a 
 bond to indemnify an officer for a levy of an 
 execution upon property claimed by a third 
 person, the measure of liability is the value 
 of the interest of claimant in the property 
 at the time the damages are paid, and the 
 judgment should therefore bear the rate of 
 interest borne by notes secured by mortgages 
 upon the chattels sold : Rand v. Barrett, 66- 
 731. 
 
 28. Conflict of laws: It is necessary that 
 the rate of interest be " expressed in the con- 
 tract " in order to authorize a judgment bear- 
 ing a greater rate of interest than six per 
 cent. ; therefore, held, that although, as it 
 seems, coupons made in Iowa, but payable 
 in New York, in which no rate of interest is 
 specified, would draw interest from maturity 
 at seven per cent, (the rate in the latter 
 state), yet a judgment in Iowa upon such 
 
932 
 
 INTEREST, I, d; II, a. 
 
 Commences to run, when. — Usury. — Ini general. 
 
 coupons could only draw interest at the rate 
 of six per cent. : Rogers v. Lee County, 1 Dil- 
 lon, 529. 
 
 29. Verbal contract to pay ten per cent. : 
 Under a contract not in writing to pay ten 
 per cent, interest, the plaintiff may set up 
 and recover upon a contract to pay six per 
 cent, interest : Brockway v. Holler, 57-368. 
 
 d. When interest cominences to run. 
 
 30. Payment for another's nse: When 
 money is paid for the use of another, impos- 
 ing an obligationupon the party who receives 
 the beneiit of the payment to reimburse the 
 party paying, interest from the date of the 
 payment is recoverable : Ooodnow v. Litch- 
 field, 63-275; Goodnowv. Wells, 67-654. 
 
 31. County warrant; particular fund: 
 When county warrants or orders are drawn 
 with words of limitation as to payment, in- 
 terest is allowed thereon from date ; but if 
 payable out of a particular fund not other- 
 wise appropriated, interest will not com- 
 mence to run until after such fund shall be 
 exhausted: Brown V. Johnson County, 1 G. 
 Gr., 486. 
 
 32. If not paid when due: A note provid- 
 ing for "ten per cent, interest if not paid 
 when due,'' draws interest from date if not 
 paid at maturity: Parvin v. Hoopes, Mor., 
 294. 
 
 33. Custom; The custom of a creditor, 
 known and acquiesced in by the debtor, to 
 charge interest on accounts after the end of 
 the year, may be shown as evidence of an 
 agreement to pay interest: Veiths v. Hagge, 
 &-163, 183. 
 
 34. The custom of hanks that interest shall 
 be charged on balances due the bank from 
 the dates of monthly settlements will be up- 
 held where known to the debtor, and such 
 computation will not be objectionable on the 
 ground of allowing compound interest, even 
 though the interest on the previous balance 
 is carried into the next month's account: 
 Isett V. Oglevie, 9-313. 
 
 35. Divided but unfinished account: 
 While it may be that the presentation of an 
 account showing a balance due to which the 
 person charged makes no objection will raise 
 a presumption of its liquidation, and that in- 
 terest thereon will be chargeable afterwards, 
 
 yet continuous dealings represented in one 
 account cannot be divided into separate ac- 
 counts, which will be presumed liquidated 
 simply by presenting bills of items covering 
 parts of the transaction so that interest will 
 run on the balance of such separate bills: 
 Eaymond v. Williams, 40-117. 
 
 36. For labor performed : In an action for 
 money due on contract or for labor per- 
 formed, - the amount should draw interest 
 from the filing of the petition: Swails v. 
 Cissna, 61-693. 
 
 II. UstTET. 
 
 a. Jn general, of contracts held to be 
 usurious. 
 
 37. PrcTious statutes: The Code of 1851 
 repealed aU the usury laws in existence at 
 that time, and until the passage of the act of 
 1853, which was substantially the same as 
 the law now in force, there was no law reg- 
 ulating the rate of interest : Palmer v. Leff- 
 ler, 18-125. 
 
 38. Contracts of sale : The statute (Code, 
 § 2079) forbidding usury 3,pplie3 not only to 
 contracts for loans but also to any contract 
 of purchase or sale of property where an un- 
 lawful rate of interest is provided for: Cat- 
 lanan v, Shaw, 24r-441. 
 
 39. But a party may lawfully sell on time 
 for a. larger sum than his cash price, with 
 lawful interest thereon to the time of pay- 
 ment, would amount to ; therefore, held, that 
 a sale of sheep for a sum to be paid at a future 
 day, wherein it was agreed to pay annually 
 two pounds of wool per sheep until time of 
 payment (the value of the wool being greater 
 than legal interest on the sum to be paid), 
 was not usurious, in the absence of any 
 showing that there was any intention to 
 evade the usury law: First Nat. Bank v. 
 Owen, 23-185; Oilmore v. Ferguson, 38-220. 
 
 40. Penal: The law of usury is in its 
 nature penal and is therefore to be strictly 
 construed : Dicherman v. Day, 31-444. 
 
 41. Intent: Where there is no evidence of 
 an intent or agreement to contract for usu- 
 rious interest, a jury would not be justified 
 in finding usury : Jones v. Berryhill, 25-289. 
 
 42. Sale of commercial paper: Statutes 
 against usury are aimed against the receiving 
 
INTEREST, II, a. 
 
 933 
 
 Usm-y in general ; contracts deemed usurious. 
 
 or contracting to receive a greater rate of 
 interest than authorized upon a loan or for- 
 bearance of money and do not apply to the 
 sale of a note or any other vendible commod- 
 ity which may, in good faith, be sold or 
 transferred for any price fixed by agreement 
 of the parties. Where the contract is neither 
 a loan nor a contract for extension of time 
 on a note already due, but a sale of commer- 
 cial paper without any corrupt or unlawful 
 intent,, it cannot be held usurious simply be- 
 cause the paper is an accommodation note : 
 Dickerman v. Day, 31-444. 
 
 4.3. Purchase and repurchase of realty: 
 Where land was purchased by A. without 
 any previous agreement to hold it for B., 
 and afterwards A. agreed to sell it to B. at 
 an agreed time, for an amount which was 
 more than the piurchase price with the legal 
 rate of interest, held, that such a contract of 
 sale would not amount to usury : Casady v. 
 Scallen, 15-93. 
 
 44. Contract to reconvey: Where an ab- 
 solute conveyance was made as security and 
 the gi-antee executed an agreement to recon- 
 vey on payment of the debt at maturity, 
 held, that an indorsement on the contract by 
 which the grantee agreed to receive pay- 
 ment at thirty-seven and one-half per cent, 
 on the face of the bond from its date to 
 time of payment, without any other evidence 
 or explanation, though both parties were 
 witnesses, would not raise the presumption 
 of usury: Brush v. Peterson, 54-248. 
 
 45. Exchange; foreign and domestic: 
 The charging of exchange in addition to the 
 legal interest in discounting foreign bills of 
 exchange is not usury unless resorted to for 
 the purpose of covering up a usurious trans- 
 action; but it is otherwise as to domestic 
 bills: Burrows V. Cook, 17-436. 
 
 46. Mortgage: Under the facts in a par- 
 ticular case, held, that a deed absolute in 
 form was intended as a mortgage and in- 
 cluded usurious interest : Johnson v. Smith, 
 39-549. 
 
 47. Evidence insufiicient: Evidence in an 
 action in which usury was set up, held not 
 sufficient to sustain the specific findings of 
 the jury: First Nat. Bank v. Elliott, 54- 
 419. 
 
 48. Additional loan: Where a party, in 
 order to raise an additional loan of money, 
 
 agreed that if the person who already held 
 his note and mortgage for a certain sum 
 would sell it and then take another loan un- 
 der a mortgage for a similar amount, the 
 bearer would repay to him whatever discount 
 he was compelled to suffer in selling the first 
 note and mortgage, held, that such a trans- 
 action was not usurious : Comstockv. Wilder, 
 61-274. 
 
 49. Note for usurious balance: A note 
 given in payment of a balance due on a, 
 usurious note is itself usurious: National 
 Bank v. Eyre, 52-114; Callanan v. Shaw, 
 24-441 ; Garth v. Cooper, 12-364. 
 
 50. Extension of time: Where the maker 
 of a note drawing ten per cent, interest after 
 maturity desired an extension of time, which 
 was granted for a definite period upon the 
 execution of a note, in addition to the ten 
 per cent, embraced in the original note, as 
 consideration for the extension of time, it 
 was held that the note given in extension 
 was usurious : Ferrier v. Scott's Adm'rs, 1 7-578. 
 
 51. The extension of time of a loan is a 
 loan within the meaning of the usury laws, 
 and a new note given by the surety to obtain 
 an extension of time on the original under- 
 taking would be usurious : Kendig v. Linn, 
 47-62. 
 
 52. Partial revival: Where a usurious 
 indebtedness has been paid in full and dis- 
 charged, notes subsequently given in partial 
 revival of such indebtedness will not be 
 usurious : Hoopes v. Ferguson, 57-39. 
 
 53. Note including usurious interest: 
 Facts in a particular case held sufficient to 
 show that the maker of a note bearing ten 
 per cent, interest executed and delivered the 
 same in consideration of a loan of a less 
 amount of money, and that the transaction 
 was therefore usurious: Goodhue v. Teets- 
 horn, 6.5-403. 
 
 54. Note bearing date before money re- 
 ceived : The fact that notes are dated and bear 
 iirterest from a time preceding the receipt of 
 the money thereon by the mortgagor will 
 not be sufficient to show usury, it appearing 
 that the date of the notes corresponds to the 
 time of negotiating and making the loan, 
 and it not appearing what was the cause of 
 the delay in paying the money nor that there 
 was any corrupt agreement: Waterman v, 
 Baldwin, 68-255. 
 
934: 
 
 INTEREST, 11, a. 
 
 Usury ; contracts held to be usurious. 
 
 55. Attorneys' fees: A stipulation for rea- 
 sonable attorneys' fees, to be taxed up as a 
 part of the costs in case of suit, does not 
 constitute usury : Nelson v. Everett, 29-184 ; 
 Weatherby v. Smith, 30-131. 
 
 56. Commissions to agent: The act of an 
 agent for a loan in exacting a commission 
 for himself beyond the legal rate of interest, 
 without authority or consent of his princi- 
 pal, wUl not render the loan usurious : Qdkey 
 V. Knapp, 44-32 ; Brigham v. Myers, 51-397. 
 
 5 7. But a party making a loan to another 
 in person cannot, under the name of commis- 
 sion, exact more than a legal rate of interest: 
 Pond V. Waterloo Agl. Worles, 50-596. 
 
 58. Under the facts in a partioulai' case, 
 lield, that a note in suit did not appear to 
 be given for usurious interest but for ad- 
 vances and commissions to maker's agent, 
 and was not therefore usurious: Wyllisv. 
 Ault, 46-46. 
 
 59. Where a person loans money for an- 
 other party, retaining a sum in addition to 
 legal interest for his own services, the trans- 
 action is not usurious. But where a per- 
 son contracts vrith the debtor to pay interest 
 coming due on such loan, and takes notes in 
 excess of the amount of interest so paid and 
 legal interest thereon, the transaction is usu- 
 rious, and the additional amount cannot be 
 considered as commission : White v. Lucas, 
 46-819. 
 
 60. The payment of the lender's traveling 
 expenses in going to view the property 
 offered as security will not constitute usury : 
 Smith V. Wolf, 55-555. 
 
 61. The fact that the agent of the lender 
 divides the commission received by him in 
 excess of the legal interest with the agents of 
 the borrower will not constitute usury: 
 Dickey v. Brown, 56-426. 
 
 62. Where the plaintiff negotiated the loan 
 in person, and under the guise of commission 
 exacted more than the legal rate of interest, 
 held, that he was chargeable with usury: 
 Pond V. Waterloo Agl. Works, 50-596. 
 
 63. Facts in a particular case considerfed, 
 and held not to show usury in connection 
 with the payment of commission to a loan 
 agency : Hawley v. Howell, 60-79. 
 
 64. Usury by agent; principal's knowl- 
 edge: When an agent who is authorized by 
 his principal to lend money for lawful inter- 
 
 est exacts more than the legal rate without 
 the authority or knowledge of his principal, 
 the loan is not thereby rendered usurious. 
 It is immaterial in such a case whether the 
 agent discloses his authority or not : Call v. 
 Palmer, 116 U. S., 98. 
 
 65. Where the agent is the husband of the 
 principal, although knowledge on the part of 
 the wife would perhaps be assumed on 
 slighter 'evidence than in other cases, yet the 
 same rule is applicable, and knowledge on 
 her part will not be presumed without evi- 
 dence : Brigham v. Myers, 51-397. 
 . 66. The facts in a particular case held not 
 sufficient to show that the party with whom 
 the usurious transaction was had was the 
 agent of the party whose money was loaned : 
 Weiser v. McKay, 51-417. 
 
 67. Where a note for borrowed money is 
 given to an agent without knowledge of the 
 agency, but supposing the agent to be the 
 lender, it wUl be usurious if it includes 
 illegal interest, although it might not he usuri- 
 ous between the borrower and the principal 
 if the principal had been disclosed : Erick- 
 son V. Bell, 53-627. 
 
 68. Gold at a higher premium: A note 
 and mortgage given for a loan of gold coin 
 in which a greater per cent, premium was 
 allowed for gold than its raarket value, held, 
 under the circumstances, to have been a 
 cloak for usury : Austin v. Walker, 45-527. 
 
 69. Agreement to pay more than debt: 
 A transaction in a particular case by which 
 one party redeemed certain property from 
 sale and gave title bond to the wife of the 
 original owner, held to be in the nature of a 
 loan, and that the amount mentioned in the 
 title bond being greater than the amount 
 paid in redemption with the legal interest, 
 the transaction weis usurious: Wormley v. 
 Hamburg, 46-144. 
 
 70. Building association; interest on 
 premium: Code, g 1186, permitting mutual 
 building associations to loan their capital to 
 members and to take notes or obUgations 
 and security therefor, provides that suchnotes 
 " shall not be construed or held usurious by 
 reason of any dues, fines or premiums for the 
 right of preference in taking such loans paid 
 in addition to the legal rate of interest." 
 This provision does not, however, authorize 
 the taking of interest upon the premiums bid 
 
INTEREST, II, b. 
 
 935 
 
 Effect of usury on the contract. 
 
 for the loan. If the interest charged is more 
 than ten per cent, per animm upon tlie 
 amount actually loaned, the contract is usu- 
 rious: Hawkey e Benefit, etc., Ass'n v. Black- 
 hum, 48-385. 
 
 71. A premium bid for a loan in a build- 
 ing association cannot be regarded as a debt 
 aside from the loan itself, for which interest 
 can be charged : Burlington Mut. Loan Ass'n 
 V. Heider, 55-434. 
 
 72. Interest upon interest: A contract 
 providing for the payment of interest at the 
 rate of ten per cent., payable semi-annually, 
 and that the semi-annual instalments of in- 
 terest shall draw interest at the rate of ten 
 per cent, after they shall become due, is not 
 usurious : Hawley v. Howell, 60-79. 
 
 73. Penalty for non-payment: A note pro- 
 viding for an illegal rate of interest fi-om and 
 after the maturity of the indebtedness is not 
 usurious: Wight v. Shuck, Mor., 425; Shuck 
 V. Wight, 1 G. Gr., 128; Gower v. Carter, 
 3-244; Wilson v. Dean, 10-432; Conrad v. 
 Gibbm, 29-130. 
 
 74. But in such cases the court wiU not 
 allow a recovery, either by way of penalty or 
 liquidated damages, for more than the legal 
 rate of interest for failure to pay when due : 
 Gower v. Carter, 3-244 ; Vennwn v. Gregory, 
 21-326. 
 
 75. A provision in a note that, if not paid 
 when due, the principal shall draw ten per 
 cent, interest from date, wiU not constitute 
 usury unless it be shown that interest is in- 
 cluded in the face of the note. But if inter- 
 est is so included, the parties will not be 
 allowed, by thus liquidating the damages for 
 the mere non-payment of money, to evade 
 the usury law : Fisher v. Anderson, 25-28. 
 
 b. Effect of usury on the contract. 
 
 76. Not Toid : A contract reserving usuri- 
 ous interest is not void : Haggard v. Atlee, 1 
 G. Gr., 44; Shuck v. Wight, 1 G. Gr., 12S. 
 
 7 7. An agreement, after the maturity of the 
 note, to pay more than a legal rate of inter- 
 est for forbearance does not, alone, affect the 
 note, but such contract itself is usurious, and 
 anything paid thereon will be applied as a 
 general payment on the note: MdUett v. 
 Stone, 17-64. 
 . And see infra, TL f. 
 
 78. Under the act of 1839 relating to usury, 
 lield, that a contract for usurious interest 
 was void only as to the interest in excess of 
 the legal rate : Richards v. Marshman, 2 G. 
 Gr., 217. 
 
 79. Note for usurious interest: If after 
 payment of a vaUd portion of the indebted- 
 ness a note is given, which includes usurious 
 interest, such note does not represent any 
 legal indebtedness. If the other notes were 
 given for the purchase price of real property, 
 the purchaser will be entitled to a reconvey- 
 ance of the property without payment of 
 the note given solely for usurious interest: 
 Knight v. Judd, 34-483. 
 
 80. Conversion of usurious security: In 
 an action against a banking institution for 
 the wrongful sale and conversion of bonds 
 pledged as security, the defenses pleaded 
 were : 1st. Prior authority from plaintiff to 
 sell the bonds. 2d. A sale thereof and a 
 credit for the proceeds on the bank account 
 of plaintiff, who accepted the proceeds, and, 
 with full knowledge, checked out the balance 
 due him on account. Held, that usury in the 
 bank account, if proved, would not avoid 
 these defenses: Hamilton v. State Bank, 22- 
 306. 
 
 81. Attorney's fee: The plaintiff in an 
 action on a usurious note should not be al- 
 lowed to recover an attorney's fee provided 
 therein: Miller v. Gardner, 49-234. 
 
 52. Confession of judgment: The defense 
 of usury must be set up before judgment, 
 and a judgment by confession cannot be at- 
 tacked on the ground that usurious interest 
 is included therein : Troxd v. Clarke, 9-201 ; 
 Twogoodv. Pence, 22-543; Miller v. Clarke, 
 37-325. 
 
 53. But a confession of judgment entered 
 into for the purpose of evading the usury 
 laws is void as between the parties, so far as 
 the amount in excess of the sum the plaintiff 
 may lawfully recover is concerned: Mullen 
 V. Russell, 46-386; Ohm v. Dickerman, 50-671. 
 
 84. The answer of the defendant in an ac- 
 tion on a confession of judgment alleging that 
 the confession was a fraudulent device to 
 evade the statute against usury, hM, suffi- 
 cient on demurrer. It matters not at what 
 time the confession is made so that it be a 
 device or part of a plan for evading the stat- 
 ute: Kendig v. Marble, 55-386. 
 
936 
 
 INTEREST, II, c, d. 
 
 Purging contracts of usury, — Who may set up usury. 
 
 8.5. The existence of usury in the note upon 
 which a judgment by confession is rendered 
 does not alone authorize the conclusion that 
 the parties caused the judgment to be entered 
 for the purpose of concealing it or evading 
 the statute against it : Kendig v. Marble, 58- 
 539. 
 
 86. A written statement authorizing entry 
 of judgment upon a note does not, before 
 judgment is entered, estop the party making 
 it from setting up the plea of usury : Lyon v. 
 Welsh, 30-578. 
 
 c. Piirging contracts of usury. 
 
 87. Usurious part abandoned: Before 
 petitioner in a court of equity can obtain re- 
 lief upon a contract including usury, he must 
 aver and show a wUlingness to abandon the 
 usurious part of the contract : Phelps v. Pier- 
 son, 1 G. Gr., 131. 
 
 88. Refunding the usury: If by consent 
 of both parties to a usurious contract the 
 unlawful interest already paid is refunded 
 with the agreement that thereafter lawful 
 interest only shall be charged, the contract is 
 thereby pui'ged of usury : Phillips v. Colum- 
 bus City Building Ass'n, 53-719. 
 
 89. Substitution of contracts: The word 
 contract, as used in the statutory provision 
 regulating usury (Code, § 3079), refers to the 
 entire transaction in which usurious interest 
 has been reserved. The substitution of one 
 contract for another, or the substitution of a 
 new note for an old one, will not purge the 
 usury : Smith v. Coopers, 9-376 ; Campbell v. 
 McHarg, 9-354. 
 
 90. Usury corrected by new contract: 
 However it may be covered by changes and 
 substitutions, if usury be found to exist in 
 the contract, directly or indirectly, its taint 
 continues and affects all the parts through 
 which it runs. The substitution of one con- 
 tract for another, or the taking of a new 
 note for an old one, will not purge it : Garth 
 V. Cooper, 13-364. 
 
 91. If it satisfactorily appears that the 
 parties at the time of making the second 
 note intended to purge the contract of its 
 usurious taint and to so reform and correct it 
 that no part of the original illegal considera- 
 tion entered into the new note, such new 
 Bote will not be affected by the previous 
 
 usury, but if it is designed merely to cover 
 up the usury, the t:iint attaches to it : Ibid. 
 
 92. Consent of debtor: A contract may 
 be purged of usury only by making substan- 
 tially a new contract with the consent of the 
 debtor. The indorsement of usurious inter- 
 est on the note as a payment, without the» 
 assent of the debtor, will not have that 
 effect : National Bank v. Eyre, 53-114. 
 
 d. Who may set up the defense. 
 
 93. In general: The defense of usury is 
 personal to the debtor, and cannot be inter- 
 posed by one who is not a party nor privy 
 to the usurious contract: Drake v. Loivry, 
 14-135 ; Sternburg v. Callanan, 14r-351 ; Car- 
 michael v. Bodflsh, 33-418 ; Miller v. Clarke . 
 37-335. 
 
 94. An agent with whom money is depos- 
 ited by his principal to be loaned on terms 
 constituting usury cannot set up usury by 
 way of defense in an action by his principal 
 for the balance in his hands: Sternburg v. 
 Callanan, 14-351. 
 
 95. In case of conversion: The defense of 
 usury cannot be set up by one who has con- 
 verted a note and collected the full amount, 
 when sued by the true owner for the amount 
 so collected : Allison v. King, 35-56. 
 
 96. Tlie grantee of land mortgaged to 
 secure a usurious debt cannot interpose the 
 defense of usury in an action to foreclose : 
 Green v. Turner, 38-113 ; GreitJier v. Alexan- 
 der, 15-470; Hollingsworth v. Swiekard, 10- 
 385 ; Frost v. Slvxw, 10-491 ; Perry v. Kearns, 
 18-174; Burlington Mut. LoanAss'nv. Heir' 
 der, 55-434. 
 
 97. A judgment creditor of an insolvent 
 cannot set up usury in behalf of his debtor in 
 a proceeding to which he is not a party: 
 Carmiahael v. Bodfish, 33-418. 
 
 98. Junior mortgagee: A junior mort- 
 gagee, in an action to redeem from the judg- 
 ment in a foreclosure proceeding to which he 
 was not made a party, and in which usury 
 was not pleaded, cannofset up the defense of 
 usury and compel the holder of the judg- 
 ment to accept less than the amount of his 
 lien: Powell v. Hunt, 11-430. 
 
 99. Partner: In an action on a copartner- 
 ship note, either partner, without the consent 
 of the other, may set up usury, and so may a 
 
INTEREST, II, d, e. 
 
 937 
 
 Usury. — Who may set up the defense. — Third parties as affected by. 
 
 partner who has undertaken to pay the firm 
 debts, in a suit brought against him alone 
 after dissolution. If usury is set up by either 
 partner, the penalty should be enforced 
 against both: Machinists' Bank v. Krum, 
 15-49. 
 
 100. A renewal of a partnership note by 
 one of the partners will not deprive him of 
 the right to set up usury as to such note: 
 Ibid. 
 
 101. Immediate assignee: Whether under 
 the Code the usurer is liable to any one but 
 Ms immediate assignee, discussed but not de- 
 cided : Brown v. Wilcox, 15-414. 
 
 102. Subsequent purchaser: In an action 
 to foreclose a mortgage, a subsequent pur- 
 chaser of the premises cannot plead usury, 
 but he may show payment of the debt, and 
 hold the mortgagee liable for neglect in col- 
 lecting rents : Huston v. Stringham, 31-36. 
 
 103. Homestead ; wife : In an action to 
 foreclose a mortgage upon the homestead, 
 given by the husband and wife to secure a 
 note of the husband, the plea of usury may 
 be set up by the wife : Lyon v. Welsh, 20-578. 
 
 104. Moiigagor's grantee: Where E., 
 having mortgaged certain premises, con- 
 veyed the same to O., who agreed to pay the 
 mortgage debt, held, that O. could not set up 
 usury in an action to foreclose where per- 
 sonal judgment against E. was expressly 
 waived by the mortgagee. The fact that O. 
 had an action pending against R. for the pur- 
 pose of setting aside the mortgage as fraud- 
 ulent, held not to alter the case : National L. 
 Ins. Co. V. Olmsted, 32-354. 
 
 105. Sureties and guarantors: A surety 
 may avail himself of the defense of usury 
 to the same extent that the principal can, 
 and so may a guai-antor, guarantors being 
 deemed sureties; Conger v. Bahhett, &1-1Z; 
 Kendig v. Linn, 47-63. 
 
 106. But the surety may pay the usurious 
 debt when it becomes due, and need not wait 
 until suit is brought, so as to set up usury ; 
 and in an action by him to recover from the 
 principal the amount so paid, the principal 
 cannot plead usury : Culver v. Wilbern, 48-26. 
 
 107. However, a surety who has paid a 
 portion of the original usurious debt, and 
 given his own note for the balance, cannot as 
 against his own note interpose the plea of 
 usury: Ibid. 
 
 108. Where the surety takes up the note 
 of his principal and gives his own note, it 
 must be regarded as payment or purchase 
 and not as a renewal, and the surety cannot 
 in such case interpose the plea of usury to 
 such new note : Ibid. 
 
 109. Action by national bank: Although 
 no penalty can be enforced against a national 
 bank for taking usury except as provided by 
 the national banking act, and that perhaps 
 only in a federal court, yet in an action by 
 such bank in a state court, the defendant 
 may deny the validity of the claim by show- 
 ing that it is for usurious interest : National 
 Bank v. Eyre, 52-114. 
 
 110. Afflnnatire relief; tender: Usury 
 may not only be relied upon as a defense but 
 may in proper circumstances be made a 
 gTOund of affirmative reUef , and in such case 
 the party is not required to tender the prin- 
 cipal sum and legal interest. (Overruling 
 Phelps V. Pierson, 1 G. Gr., 131): Morrison 
 V. Miller, 46-84. 
 
 11 1. Form ofprocednre: Neither the rights 
 of the defendant nor the duty of the court 
 to enter up judgment in favor of the school 
 fund should depend upon the form of the 
 proceeding: Ibid. 
 
 e. Third parties as affected hy the 
 usury. 
 
 112. Bona flde holder of note: Usury 
 may be pleaded against a bona fide holder 
 for value of a negotiable instrument as well 
 as against the payee : Bacon v. Lee, 4-490. 
 
 113. But illegal interest as a consideration, 
 unlike usury, cannot be urged against an in- 
 nocent transferee before maturity : Burrows 
 V. Cook, 17-436. 
 
 114. Discount: A bona flde purchaser of 
 a note or bond may take it at any rate of dis- 
 count without violating the statute of usury, 
 but if the note is made to be negotiated, and 
 the intention is to an-ange the transaction so 
 as to place the subsequent transferee who has 
 knowledge, in the position of an innocent 
 holder, and thus avoid the statute of usury, 
 the payee giving no consideration and being 
 a mere go-between, the contract wiU be 
 deemed usurious if the amount of discount 
 is greater than ten per cent, and is taken for 
 the purpose of usury : Nichols v. Levins, 15- 
 863. 
 
938 
 
 INTEREST, II, e. 
 
 Usury ; third parties as affected by. 
 
 115. The payee of a promissory note, who 
 has acquired the riglit to sue the maker 
 thereof, may dispose of it at any rate of dis- 
 count from its face, and the purchaser will 
 have the right to enforce its full amount 
 against the maker without any defense on 
 the ground of usury : Dickerman v. Day, 31- 
 444. 
 
 116. No defense of usury can be set up 
 against the purchaser of an accommodation 
 note taken at a greater amount of discount 
 than legal interest,unless such purchaser have 
 knowledge of the character of the paper: 
 Ibid. 
 
 117. Bight of recovery limited: Where 
 the assignee of a usurious note procured the 
 same to be taken up by the maker and a new 
 note made payable to him directly, and then 
 transferred it to another, held, that the last 
 assignee was limited in his right to recover 
 to his immediate assignor and could not re- 
 cover from the assignor of the first note: 
 Brown v. Wileox, 15-414. 
 
 118. Knowledge: An indorsee who takes 
 with knowledge that the note is tainted with 
 usury is not to be protected by the Code, 
 § 2081, which protects bona fide assignees 
 without notice of the usury : Ibid. 
 
 119. Under the facts of a particular case, 
 held, that the transferee of a note which in- 
 cluded usurious interest had knowledge of 
 the fact of usury, although the maker ad- 
 vised him that the note was all right and that 
 no defenses to it existed: Watson v. Hoag, 
 40-143. 
 
 120. Estoppel ; Itona flde liolder: Where 
 the holder of a note takes it upon the repre- 
 sentations of the maker that it is not usu- 
 rious, the latter will be estopped from setting 
 up the plea of usury against such holder: 
 French v. Roive, 15-563 ; Callanan v. Shaw, 
 24^4A1. 
 
 121. But if the transaction is merely a 
 device to evade the usury law, to which the 
 assignee is privy, he will not be protected : 
 Nichols V. Levins, 15-363. 
 
 122. Renewed promise: Where a note is 
 given for money advanced to be used in the 
 repurchase of property which has been sold 
 under a mortgage covering usurious interest 
 and the property has been bought in by the 
 mortgagee, the note is subject to the defense 
 of usury: Switz v. Platts, 15-398. 
 
 123. Where the plaintiffs purchased a usu- 
 rious note, and subsequently the defend- 
 ant, who was the maker, promised plaintiffs 
 to pay the same, held, that such promise 
 did not estop the maker from setting up the 
 defense of usury in an action on a promise to 
 pay the note, plaintiffs having parted with 
 nothing on the strength of the promise : Alli- 
 son V. Barrett, 16-378. 
 
 124. Assignee's right of action: Code, 
 § 3081, which gives an assignee in good faith 
 and without notice a right of action against 
 the usurer, does not entitle the assignee to 
 the action unless he has sustained loss by 
 reason of the usurious character of the note : 
 Culver V. Wilbern, 48-26. 
 
 125. Whether the usurer is, under this sec- 
 tion of the Code, liable to any one but his 
 immediate assignee, discussed but not de- 
 cided : Brown v. Wilcox, 15-414. 
 
 12G. Transfer from old to new firm: 
 Where there was a change in the member- 
 ship of a firm and a settlement made of 
 plaintiff's account, which was transferred to 
 the new set of books, and paid by the new to 
 the old firm, it was held that this did not 
 affect the question of usury between the par- 
 ties prior to the change : Burrows v. Cook, 
 17^36. 
 
 127. Money borrowed to pay usury: If 
 
 A. executes a security to B., for the purpose 
 of raising money to pay C. a usurious debt, 
 
 B. will not be affected by the question of 
 usury. Nor would the case be altered by an 
 agreement between A., B. and C, that in 
 case the paper is not sold, B. shall retain it 
 as evidence of that amount of indebtedness 
 bo C. : Ibid. 
 
 128. If money be borrowed to pay off a 
 usurious debt, the lender, even if with no- 
 tice, is not affected with usury in the orig- 
 inal debt : Wendlebone v. Parks, 18-546. 
 
 129. Where the pi-omisor in a usurious 
 contract makes it the consideration of a new 
 contract with a third party, not party to the 
 original contract or to the usury pa,id or re- 
 served, if the new contract is not a contriv- 
 ance to evade the statutes against usury, it 
 will not be iUegal or usurious : Call v. Palmer, 
 116 U. S., 98. 
 
 130. Where the maker of a usurious note, 
 which was secured by a deed of trust, bor- 
 rowed money of a third person to pay the 
 
INTEREST, II, f. 
 
 939 
 
 Usury ; when paid. 
 
 same, and, instead of executing new securi- 
 ties for the money so borrowed, caused the 
 note to be transferred by the payee to tlie 
 lender as evidence and security of the new 
 debt, held, that the note was not tainted with 
 usury in the hands of the second holder: 
 
 im. 
 
 131. Where one person bon-ows money of 
 another at a legal rate of interest to pay a 
 usurious debt, he cannot defend against such 
 new indebtedness on the ground of usury 
 and that the new debtor had knowledge that 
 the debt paid off was usurious: Mason v. 
 Searles, 56-538. 
 
 132. Redemption of collaterals; injunc- 
 tion : Where a creditor is enforcing collection 
 of collaterals pledged to him for the security 
 of a usurious debt, the debtor may enjoin 
 him from transferring such collaterals as are 
 not necessary for the security of the legal in- 
 debtedness : Binford v. Boardman, 44-53. 
 
 f. Usury; when paid. 
 
 133. General rule: Usurious interest 
 voluntarily paid cannot be recovered back : 
 Nichols V. Skeel, 13-800; Quinn v. Boynton, 
 40-304. 
 
 134. Usury paid without contract: Where 
 there is no conti'act for an illegal rate of in- 
 terest, the mere receiving of such interest 
 will not render the contract itself usurious, 
 but the receiving of the usurious interest is 
 itself unlawful, and the amount so received 
 will be presumed to be applied to the pay- 
 ment of the debt and legal interest thereon: 
 Sexton V. Murdoch, 36-516. 
 
 135. Limitation of claim for usurious 
 interest paid: Whether, after the lapse of 
 two years from the payment of usurious in- 
 terest, an action can be maintained to re- 
 cover it back, or an application thereof to 
 the extinguishment of the principal debt 
 can be enforced, qucere: National Bank v. 
 Eyre, 52-114. 
 
 136. Usurious payments; how applied: 
 If money is paid on a usurious indebtedness 
 it shall be applied on the discharge of what 
 the debtor was owing legally, and not that 
 which (so to speak) he was owing illegally. 
 Therefore, where it appears in a usurious 
 transaction there has been a renewal of 
 notes, in, -virhich interest was included, and 
 
 also at the time separate notes were given 
 for usurious interest, all the payments will 
 be applied to the extinguishment of the 
 legal indebtedness: Smith v. Coopers, 9- 
 376. , 
 
 137. Usury once paid cannot be recovered 
 back. If two notes are given in separate 
 transactions, both usurious, and one is paid, 
 the unlawful interest thus paid cannot be set 
 up in an action on the note remaining unpaid : 
 Philips V. Gephart, 53-39C. 
 
 138. Forbearance: An agreement after 
 the maturity of a note to pay more than a 
 legal rate of interest for forbearance does 
 not affect the note, but such contract itself 
 is usurious, and anything paid thereon will 
 be applied to the general payment of the 
 note : Mallett v. Stone, 17-64. 
 
 139. lialance due; payments applied: 
 A note given in payment of a balance due 
 on a usurious note is itself usurious, for the 
 debtor has the right to have all the pay- 
 ments made on the original note in discharge 
 of usurious interest applied upon the prin- 
 cipal: National Bank v. Eyre, 53-114; Cal- 
 lanan v. Shaw, 24^-4:4:1 ; Garth v. Cooper, 13- 
 364. 
 
 140. Application of payments: Where de- 
 posits were made from time to time by a 
 debtor with his creditor, such creditor being 
 a bank which held his notes, and from time 
 to time balances were struck and new notes 
 were given, usurious interest being included 
 in the computation, held, that the deposits 
 must be regarded, in the absence of evidence 
 to the contrary, as having been applied pro 
 rata upon interest and principal, notwith- 
 standing the entry upon the books of the 
 bank showing api;)lication of such payments 
 to the extinguishment of the interest : Kinser 
 V. Farmer^ Nat. Bank, 58-738. 
 
 141. Usurious interest paid on a note 
 afterwards put in judgment cannot sub- 
 sequently be applied as payment on other 
 notes. In the absence of collusion or at- 
 tempt to cover usury, a judgment is con- 
 clusive between j)arties and privies: Phil- 
 ips V. Gephart, 53-396. 
 
 142. Partial revival: Where usruious in- 
 debtedness has been paid in full and dis- 
 charged, notes subsequently given in partial 
 revival of such indebtedness will not be usu- 
 rious : Hoopes v. Ferguson, 57-39. 
 
940 
 
 INTEREST, II, g, h. 
 
 Conflict of laws. — Pleadings and evidence. 
 
 g. Conflict of laws. 
 
 143. Place of perf'ormfince: Where a con- 
 tract is made in one state to be performed in 
 another, the interest will be computed ac- 
 cording to the law of the place of perform- 
 ance, but the parties may stipulate that in- 
 terest shall be calculated according to the 
 laws of the place where the contract is made : 
 Butters v. Olds, 11-1. 
 
 144. In such cases the parties may adopt 
 the rule of either state as to interest; and 
 where the note was executed in one state, 
 to be performed in another, and the maker re- 
 sided in still another state, and the property 
 pledged as security was there situated, held, 
 that the law of that state might be adopted 
 as to interest, provided such provision was 
 not resorted to merely as a means of evad- 
 ing the usury law : Arnold v. Potter, 22-194. 
 
 145. What penalty will apply: "While 
 the courts of this state will not enforce the 
 penal statutes of another state, yet where a 
 contract made witli reference to the laws of 
 another state is usurious there, the forfeiture 
 provided by such laws will be enforced : Ibid. 
 
 146. Place of delivery: A note executed 
 and dated in Missouri, but delivered and the 
 consideration thereof received in Iowa, is an 
 Iowa contract and subject to the Iowa law 
 of usury : Hart v. Wills, 52-56. 
 
 147. Where a resident of Iowa negotiated 
 a loan in Massachusetts from a resident 
 thereof, executing a promissory note dated 
 in Iowa and payable in New York, securing 
 the same by a trust deed on real estate in 
 Iowa to a trustee there resident, held, that 
 if the parties in good faith, without intend- 
 ing to evade the usury laws, stipulated 
 for the rate of interest allowable in Iowa, 
 although greater than the legal rate in Mas- 
 sachusetts or New York, the contract should 
 be enforced : Arnold v. Potter, 23-194. 
 
 148. In such case the form of the transac- 
 tion is immaterial, the cardinal inquiry being, 
 did the parties resort to it as the means of 
 disguising usury in violation of the laws of 
 the state where the contract was made or to 
 be executed : Ibid. 
 
 149. Foreign judgment: Prima facie the 
 rate of interest upon a foreign judgment is 
 governed by the law of this state. If it is 
 claimed that the rate of interest is different 
 
 in the state in which the judgment is ren- 
 dered, that fact must be averred and proved : 
 Crafts V. Clark, 38-237. 
 
 h. Pleadings and evidence. 
 
 150. Equity ; demurrer: Where usury is 
 apparent upon the face of a bill in equity, 
 and a decree including usury is prayed for, a 
 demurrer to the bill will lie : Phelps v. Pier- 
 son, 1 G. Gr., 131. 
 
 151. Tender: Usury may be set up as a 
 defense in an equitable action without first 
 tendering the amount legally due. The 
 maxim, "He who seeks equity must do 
 equity," is not applicable in such case: 
 Kuhner v. Butler, 11-419; Cox v. Douglas, 
 13-185. 
 
 152. Chattel mortgage foreclosure: The 
 question of usury may be raised in a proceed- 
 ing for the foreclosure of a chattel mortgage, 
 which is by action of injunction transferred 
 to the court : Hanlin v. Parsons, 33-307. 
 
 153. Foreclosure: Usury cannot be shown 
 as a defense in the foreclosure of a mortgage, 
 when the debt itself is reduced to judgment : 
 Ee7idig v. Marble, 58-539. 
 
 154. Dismissal of action: Where an ac- 
 tion is dismissed before answer there is no 
 right, either in the behalf of the defendant 
 nor of tlie school fund, to interpose a plea of 
 usury : Tufts v. Bauserman, 46-341. 
 
 155. Burden of proof: The burden of 
 establishing the defense of usury is upon the 
 party setting it up: Hough v. Hamlin, 57- 
 359. 
 
 156. Where the execution of a lost note is 
 shown and there is a conflict in the evidence 
 as to the rate of interest stipulated therein, 
 the burden of proving that the rate was usu- 
 rious is upon the party afiirmingit: Richards 
 V. Burden, 59-728. 
 
 157. Admissibility of eyidence: Evidence 
 of a usurious contract is admissible under an 
 answer which alleges that the payee of a note 
 received a greater rate of interest than the 
 law allows : Kurz v. Holbrook, 13-563. 
 
 158. Evidence of the intemperance and 
 financial embarrassment of the borrower and 
 of the lender's knowledge thereof is not com- 
 petent and relevant on the subject of usury : 
 Woodford v. Blood, 32-600. 
 
 159. Competency of witnesses: The in- 
 dcarsw of a pro:eaiss0r^ note is a competent 
 
INTEREST II, i. 
 
 941 
 
 Forfeiture; judgment and costs. 
 
 witness to prove usury in the inception of 
 the note: Richards v. Marshman, 2 G. Gr., 
 217. 
 
 160. Under the provisions of Rev., § 1791, 
 that the person contracting to pay unlaw- 
 ful interest should be a competent witness 
 to prove that the contract was usurious, such 
 witness was competent, notwithstanding the 
 provisions of Rev., g 3982, which rendered 
 the party incompetent to testify in a pro- 
 ceeding when the adverse party was the ex- 
 ecutor of a deceased person and the facts to 
 be proved transpired before the death of such 
 deceased person: Rinehatrt v. Buckingham, 
 34-409. 
 
 161. Code, § 2080, omits the provision of 
 Eev., § 1791, as to the person contracting 
 being a competent witness to testify. If he 
 falls within the provisions of Code, § 3639, 
 relating to actions by or against executors, 
 administrators, etc., he is not now compe- 
 tent: Wormley v. Hamburg, iO-22. 
 
 i. Forfeiture', judgment and costs. 
 
 162. Forfeiture: In computing the for- 
 feiture, the ten per cent, interest should be 
 reckoned on the balance of the original sums 
 loaned remaining unpaid, in the same man- 
 ner as if the interest was going to the plaint- 
 iff ; and not upon the entire sum originally 
 loaned: Smith v. Coopers, 9-376. 
 
 163. It should be computed up to the date 
 of judgment and not simply to the maturity 
 of the contract : Mcklin v. Zwart, 10-387. 
 
 164. Computation should be made from 
 the time the money was borrowed, notwith- 
 standing the fact that the form of the in- 
 debtedness has been changed to that of a 
 note bearing a later date : Drake v. Lotvry, 
 14-125. 
 
 165. In computing the penalty which is to 
 go to the school fund, the amount due is to 
 be calculated exactly as between the bor- 
 rower and the lender, and proper indorse- 
 ments of credit allowed : Sheldon v. Michel, 
 40-19. 
 
 166. The forfeiture is not a lien upon the 
 premises mortgaged to secure the usurious 
 debt, but becomes a lien only from date of 
 Judgment therefor: Lewis v. Barmby, 14-88. 
 
 167. In an action on a copartnership debt, 
 if usury is set up by either partner, the pen- 
 
 alty should be enforced against both: Ma- 
 chinists^ Bank v. Krum, 15-49. 
 
 168. It is not on the plea or for the benefit 
 of the borrower that the court decrees a for- 
 feiture ; but whenever usury is brought to its 
 knowledge: Ibid. 
 
 16!). And when the usury is found, the 
 penalty in favor of the school fund will be 
 enforced, although the parties agree in ask- 
 ing a different judgment : Burrows v. Cook, 
 17-436. 
 
 170. Judgment against a surety: The 
 judgment in favor of the school fund for the 
 penalty should be against the surety as well 
 as against the pi-incipal, and it seems that 
 the surety, if compelled to pay, may have 
 action against the principal for reimburse- 
 ment of such penalty, or against his co-surety 
 for contribution, and may be subrogated to 
 the rights of the state with respect to the 
 judgment and any security held by it: Mcin- 
 tosh V. Likens, 25-555. 
 
 171. No vested right in penalty: The 
 state, representing the school fund, has no 
 absolute or vested right to the forfeiture. Its 
 right is qualified and incidental, and accrues 
 only when an unpaid usurious contract is 
 brought before the court for adjudication, 
 and the usury is in a legitimate way brought 
 to the knowledge of the court. Where suit 
 was brought for a balance of usurious inter- 
 est, the principal and legEd interest having 
 been paid, held erroneous to render a judg- 
 ment against the defendant in favor of the 
 school fund for ten per cent, of the amount 
 originally loaned: Easley v. Brand, 18-133. 
 
 172. Settlement: It is not competent for 
 parties to settle a suit in which usury ap- 
 pears, in such a manner as to deprive the 
 state of a judgment on account of the usury : 
 Reynolds V. Babcock, 60-289. 
 
 173. Judgment on appeal; On appeal in 
 an action in which usury was pleaded, held, 
 tha,t plaintiff might, in the supreme court, 
 remit the usury and have judgment entered 
 there for the principal, judgment being also 
 entered there in favor of the school fund for 
 the penalty, and the costs in the com-t below, 
 and on appeal being taxed to the plaintiff: 
 Thompson v. Pumell, 10-305. 
 
 174. Payment applied to other notes: 
 Usurious interest paid on a note afterwards 
 put in judgment cannot subsequently be ap- 
 
942 
 
 INTOXICATING LIQUORS, I. 
 
 In general. 
 
 pUed as a payment on other notes. In the 
 absence of collusion or intent to cover usury, 
 a judgment is conclusive as between parties 
 and privies : Philips v. Gepkart, 33-396. 
 
 175. Costs: Costs ai-e not to be recovered 
 by the party making the loan: Binford v. 
 Boardman, 44r-58. 
 
 176. Although there is no declaration that 
 judgment shall be rendered against the 
 plaintiflE for costs, yet where the defendant 
 on the issue joined as to usury is successful, 
 the costs may be taxed to plaintiff. It was 
 not intended to leave each party to pay his 
 own costs in such cases: Garth v. Cooper, 
 13-364. 
 
 177. The rule that costs are not to be re- 
 covered by the party making a usurious loan, 
 applied in a particular case: Binford v. 
 Boardman, 44^53. 
 
 INTOXICATING LIQUOES. 
 
 I. In general. 
 
 II. Permits; sales by pharmacists. 
 III. Seizure and destruction on search 
 
 WARRANT. 
 
 rv. Illegal sale or keeping for sale. 
 
 V. Nuisance committed in the illegal 
 
 KEEPING OR selling; INJUNCTION. 
 
 VI. Eecovert op civil damages. 
 
 VII. Liens op judgments for illegal 
 
 SALES. 
 
 VIII. Contracts for, illegal sale void ; 
 recovery of purchase price. 
 
 As to allowing minors to frequent saloons, 
 see Criminal Law, § 729. 
 
 I. In genbeal. 
 
 1. Statutes constitutional: The provis- 
 ions of the Code of '51 prohibiting the sale of 
 intoxicating liquors by the glass, held consti- 
 tutional: Zumhoffv. State, 4 G. Gr., 536. 
 
 2. The prohibitory act of 1855 considered 
 and held not in conflict with the provisions 
 of the state constitution : Santo v. State, 3- 
 165. 
 
 3. The act of 1857, authorizing the people 
 of each county to vote as to whether the 
 provisions of the act of 1855 should be re- 
 pealed in that county and those of the act of 
 1857 substituted, lield unconstitutional, as 
 making the repeal of a statute dependent 
 
 upon a vote of the people : Geebrick v. State, 
 5-491. 
 
 4. And the act of 1870 (13 G. A., ch. 82), 
 providing for the submission to vote of the 
 question whether the sale of ale, wine and 
 beer should be prohibited, was also held un- 
 constitutional as depending for its validity 
 upon popular vote : State v. Weir, 33-134. 
 
 5. The statute prohibiting the sale of in- 
 toxicating liquors cannot be said to deprive 
 the owner of his property therein without 
 compensation in violation of constitutional 
 guaranties, unless such property was owned 
 by him prior to the prohibitory act of 1855 : 
 McLane v. Leicht, 69-401. 
 
 6. The power of the legislature to enact 
 laws for the suppression of the general trafiSc 
 in intoxicating liquors within the state has 
 been recognized and affirmed by this court 
 for more than twenty-five years. It has uni- 
 formly been held that the state, in the exer- 
 cise of its police power, might regulate the 
 traffic, or prohibit it entu'ely ; and when the 
 power to prohibit the traffic is recognized, 
 the power to enact whatever laws may be 
 necessary to make the prohibition effectual 
 follows necessarily : McLane v. Bonn, 70 . 
 
 7. The provisions of the prohibitory liquor 
 law are not in conflict with the constitution 
 nor laws of the United States : Santo v. State, 
 3-165 ; State v. Carney, 30-82 ; State v. Baugh- 
 man, 30-497. 
 
 8. Laws regulating the sale of intoxicating 
 liquors are regarded as police regulations, and 
 the state may in its discretion prohibit the 
 sale of one kind of liquor and aUow the sale 
 of another kind, and the fact that it pro- 
 hibits the sale of wine from foreign grapes, 
 while permitting the sale of native wine, will 
 not render the legislation uncpnstitutional as 
 an improper i-egulation of interstate com- 
 merce : State v. Stucker, 58-496. 
 
 9. The restrictions found in the Code upon 
 the sale of intoxicating liquors were adopted 
 not for the purpose of securing an undue ad- 
 vantage to the citizens of the state, but for 
 the purpose of preventing violations of the 
 prohibitory laws of the state ; and although, 
 in effect, the citizens of other states are de- 
 barred from selling in Iowa liquors to be 
 resold for legal purposes, this is but an inci- 
 dental result of a valid exercise of police 
 power by the state, and no provision of the 
 
INTOXICATING LIQUORS, I. 
 
 943 
 
 In general. 
 
 federal constitution is thereby violated : Kohn 
 V. Melcher, 39 Fed. Rep., 433. 
 
 10. United States license: The fact that 
 defendant holds a United States internal rev- 
 enue license to retail liquors is no defense in 
 a prosecution for illegally selling, etc., under 
 the state law. Such license does not author- 
 ize the holder to violate the law of the state : 
 State V. MoCleary, 17-44; State v. Carney, 
 20-82; State V. Stutg, 20-4.88; Statev. Baugh- 
 man, 30-497. 
 
 11. Nor is the holding of such license a 
 circumstance tending to show a violation of 
 the state law : State v. Stutz, 30-488. (But 
 it is provided by 21 G. A., ch. 113, that the 
 fact of keeping posted a receipt or stamp 
 showing the payment of a United States in- 
 ternal revenue tax forthe privilege of selling 
 liquor shall be prima facie evidence, as 
 against a person not having a state permit, 
 that any liquors found in his possession are 
 kept for sale in violation of law.) 
 
 12. What deemed intoxicating: So long 
 as liquors retain their character of intoxicat- 
 ing liquors capable of use as a beverage, not- 
 withstanding other ingredients may have 
 been mixed therewith, they fall within the 
 provisions of the statute prohibiting the sale 
 of such liquors. But when they are so com- 
 pounded with other substances as to lose the 
 character of intoxicating liquors and are no 
 longer desirable for use as a stimulating bev- 
 erage, and are, in fact, medicine, then their 
 sale is not prohibited: State v. Laffer, 38- 
 422. 
 
 13. Under the statutory provision (Code, 
 § 1555, before its amendment) by which the 
 manufacture and sale of beer, cider from 
 apples, or wine from grapes, currants or other 
 fruits grown in this state, was not prohibited, 
 held, that wine was presumed to be an intox- 
 icating liquor, unless it was shown that it 
 was manufactured from grapes or fruit 
 grown in this state : Worley v. Spurgeon, 38- 
 465. 
 
 14. neld, also, that, in an indictment for 
 the sale of wine made from fruit grown out 
 of the state, an allegation that it was intoxi- 
 cating was mere surplusage : State v. Ourley, 
 33-359. 
 
 15. The meaning put by that section upon 
 the term intoxicating liquors, so as to include 
 those that were spirituous and vinous, exclud- 
 
 ing malt liquors, held to be purely arbitrary, 
 as the latter are known to be in fact intoxi- 
 cating : Jewett v. Wanshura, 43-574. 
 
 16. Also held, that the limitation of the 
 latter part of the provision in regard to the 
 place where the materials were grown did 
 not apply to beer : State v. Brindle, 28-513. 
 
 17. A defendant relying upon the proviso 
 of that section must allege and prove the 
 facts bringing him witliin its provisions, and 
 it is not necessary that the prosecution charge 
 and prove, in the first instance, that the case 
 does not fall within the proviso: State v. 
 Stapp, 39-551; Statev. Curley, 33-359; State 
 V. Miller, 53-84. (This is expressly provided 
 in Code, § 1549.) 
 
 18. Sales by importer: In a prosecution 
 for using a building for the purpose of sell- 
 ing intoxicating liquor in violation of law, 
 it is not necessary for the prosecution to 
 negative the exception found in Code, § 1534, 
 with reference to imported Uquor remaining 
 in the original casks or packages. Such ex- 
 ception must be proven by way of defense : 
 State V. Becker, 30-438. 
 
 19. Sales near city limits: The statute 
 (17 G. A., oh. 119; McClain's Ann. Stat., 
 439) giving municipal corporations power to 
 prohibit or license the sale of ale, wine or 
 beer within two miles of their limits, held 
 constitutional: State v. Shroeder, 51-197; 
 Centerville v. Miller, 51-713 ; Toledo v. Edens, 
 59-353. 
 
 20. By virtue of this statute a city ordi- 
 nance regulating within the city limits the 
 sale of liquors not prohibited would become 
 operative within the limits specified without 
 further action : Toledo v. Edens, 59-353. 
 
 21. Whatever territory ^the city maintains 
 jurisdiction over for the purpose of taxes or 
 otherwise, under a claim to exercise such 
 jurisdiction, must be regarded as a de facto 
 portion of its territory. The right of juris- 
 diction cannot be questioned in a prosecu- 
 tion for violation of this statutory provision : 
 AlUa V. O'Harra, 64-397. 
 
 As to the authority of cities and towns to 
 regulate the sale of ale, wine, or beer within 
 their limits before the passage of the present 
 law, see Municipal Corporations, §§ 273- 
 380. 
 
 23. Drunkenness and intoxication de- 
 fined: The word drunkenness, in a warrant 
 
944 
 
 INTOXICATING LIQUORS, I, II. 
 
 In general. — Permits. 
 
 of commitment, held to have the same legal 
 signification as the word intoxication : Smith 
 V. Bigelow, 19-459. 
 
 23. An instruction defi^ning " intoxica- 
 tion," discussed : State v. Huxford, 47-16. 
 
 24. A person is drunk in a legal sense 
 when he is so far under the influence of in- 
 toxicating liquor that his passions are visibly 
 excited and his judgment impaired : State v. 
 Pierce, 65-85. 
 
 25. Buyer not punislied : The statutes 
 punishing the illegal sale of intoxicating 
 liquor are applicable to the seller and not to 
 the buyer of such liquors, and the buyer is 
 not guilty of a crime as accessory to the sale 
 in such sense that he may be excused from 
 testifying as to his purchase of such liquor on 
 the ground that such testimony would tend 
 to criminate him: Wakeman v. Chambers, 
 69-169. 
 
 26. One who buys intoxicating liquor from 
 a person illegally selling the same does not 
 become an accomplice in the crime of the 
 illegal sale, and therefore the speaking of 
 words charging a person with such purchase 
 does not constitute slander actionable per se: 
 Sterling V. Jugenheimer, 69-210. 
 
 27. Property in intoxicating liquors: 
 While the commerce in intoxicating liquor as 
 an article of beverage is unlawful, its char- 
 acter as property is not thereby destroyed; 
 and where such liquor was seized on execu- 
 tion for the debt of one not its owner, held, 
 that the owner might recover it by replevin, 
 although it was kept for sale in violation of 
 the statute : Monty v. Arneson, 25-383. 
 
 28. That intoxicating liquors are held for 
 an unlawful pm-pose is no answer to an in- 
 dictment for stealing the same : State v. May, 
 20-305. 
 
 29. That liquors are unlawfully kept is not 
 a defense to an action of trespass for destroy- 
 ing them : Turner v. HitehoocU, 20-310. 
 
 30. "Where liquor had been seized by an 
 officer under an information which had sub- 
 sequently been held defective and a return of 
 the liquor ordered, held, that in an action by 
 the owner against such officer to recover 
 damages for a failure to return the property 
 as so ordered, the plaintiflf could not recover 
 without proving that he owned and kept the 
 liquor with a lawful intent : Walker v. Shook, 
 49-264. 
 
 31. In an action against a common carrier 
 to recover the value of intoxicating liquors 
 lost or destroyed by it, it is necessary for 
 plaintiS to prove that he owned or possessed 
 such liquors with lawful intent. (Overruling 
 Somen v. Sale, 4-430) : Sommer v. Caie, 22- 
 585. 
 
 32. Intoxicating liquors cannot be recov- 
 ered by the owner unless he shows that they 
 were in his possession with lawful intent, 
 and that he was illegally deprived of them: 
 Funk V. Israel, 5-438, 452. 
 
 33. The keeping of intoxicating liquors 
 with no intent to sell within the state in vio- 
 lation of law is not forbidden. In the ab- 
 sence of such intention the possession is 
 lawful, and will be protected. And it is im- 
 material that they were bought of one not 
 authorized to sell : Niles v. Fries, 35-41. 
 
 34. Any person has the right to own and 
 keep liquors unless he owns and keeps them 
 with intent to sell them without lawful au- 
 thority : Wakeman v. Chambers, 69-169. 
 
 35. Attorney's fees in prosecutions: The 
 county is not liable for the fees of an attor- 
 ney in prosecutions upon information by a 
 private person for illegal sales, but only for 
 those commenced by peace officers. (Code, 
 § 1551) : Blair v. Dubuque County, 27-181. 
 
 36. It is only a peace officer who files an 
 information for the violation of the liquor 
 law that is authorized to select an attorney 
 other than the district attorney to prosecute 
 the same and receive fees therefor from the 
 county : Foster v. Clinton County, 51-541. 
 
 37. A special constable is not such peace 
 officer as that he is authorized to employ an 
 attorney at the expense of the county under 
 such circumstances : Ibid. 
 
 II. Peemits; sales by phaemaoists. 
 
 38. Granting of permits: The provision 
 (Code, § 1526) that a permit shall only be 
 granted to persons of good moral character 
 is not unconstitutional : In re Ruth, 33-250. 
 
 39. An indictment for unlawful sale need 
 not negative the authority to sell under a 
 permit. Such authority, if it exists, must 
 be pleaded in defense : State v. Beneke, 9-203 ; 
 State V. Collins, 11-141. 
 
 40. A manufacturer has no right to sell 
 without a permit : Becker v. Betten, 39-668. 
 
INTOXICATING LIQUORS, II. 
 
 945 
 
 Permits ; sale by pharmacists. 
 
 41. Any citizen of the county who appears 
 to resist the granting of a permit may make 
 a showing with reference to either of the 
 questions which the board of supervisors is 
 required to determine in granting such per- 
 mit, and may introduce evidence to negative 
 either of the facts which the statute pro- 
 vides must be proven before the permit 
 should be granted. He, in effect, becomes a 
 party to the proceeding and has sufficient in- 
 terest in the matter to authorize him to insti- 
 tute a proceeding by certiorari to have any 
 errors and irregularities by the board in 
 granting the permit reviewed: Darling i>. 
 Boesch, 67-702. 
 
 42. The act (19 G. A., ch. — ) purporting 
 to amend Code, § 1527, with reference to per- 
 mits, did not become a law by reason of fail- 
 ure of the governor to approve it in the 
 proper manner, and therefore the board is 
 not authorized to grant a permit without the 
 certificate of a majority of the legal electors 
 of the township, town or ward as to the ap- 
 plicant's good moral character, etc. , and the 
 action of the board in gi-anting a permit 
 without such certificate being presented is 
 without authority and may be corrected by • 
 certiorari: Ibid. 
 
 43. Bevocation of permits: In a proceed- 
 ing to revoke a permit, defendant is not en- 
 titled to trial by jury. The permit is not 
 property in such sense that by its revocation 
 the party is deprived of his property with- 
 out due process of law : State v. Schmidtz, 
 65-556. 
 
 44. The proceeding to revoke a permit is 
 not a criminal proceeding, but a special pro- 
 ceeding of a civil nature. The revocation, 
 therefore, cannot be suspended by giving 
 bail, nor by a supersedeas bon(J on appeal, 
 for the reason that the judgment is self- 
 executing and no process is necessary in order 
 to carry it out. A supersedeas bond would, 
 however, suspend the execution of the judg- 
 ment for costs : Ibid. 
 
 45. A judgment revoking a permit, being 
 a final order in a special proceeding affect- 
 ing a substantial right, may be appealed 
 from: Ibid. 
 
 46. Reports of sales: The provisions of 
 Code, § 1537, as it originally stood, with 
 reference to the time when the report of 
 sales by a person having a permit should be 
 
 Vol. 1—60 
 
 made, was directory, and a failure to file 
 such report at the time specified would not 
 subject such person to the penalty provided, 
 if it was in fact filed before action for the 
 penalty was commenced : Abbott v. Sartori, 
 57-656. 
 
 47. But since the amendment of this sec- 
 tion so as to require the return to be made on 
 the day specified or within five days there- 
 after, the provisions as to the penalty must 
 be regarded as mandatory, and a failure to 
 make return within the time will render a 
 party liable for the statutory penalty : State 
 ex rel. v. McEntee, 68-381. 
 
 48. Action on bond: In an action on the 
 bond of a person holding a permit, the as- 
 signment of a breach thereof by selling in- 
 toxicating liquors to divers persons whose 
 names are unknown, to be by them used as a 
 beverage, is sufficient: Jones County v. Sales, 
 25-25. 
 
 49. Illegal sales under permit: A person 
 having a permit to sell is only bound to exer- 
 cise due diligence and act in good faith in 
 determining whether the person buying in- 
 tends to use the liquors for a lawful purpose : 
 Taylor v. Pickett, 52-467. 
 
 50. Selling without a permit may be pun- 
 ished both under § 1540 and § 1543 of the 
 Code : State v. Waynick, 45-516. 
 
 51. In case of a sale for purposes not speci- 
 fied in the permit, the defendant is not only 
 liable on his bond, but also to a criminal 
 prosecution for selling in violation of law : 
 State V. Adams, 20-486; State v. Stutz, 30- 
 488. 
 
 52. Sales by pharmacists: The provisions 
 of the original prohibitory liquor law requir- 
 ing that sales for proper purposes are to be 
 made only by persons holding permits are 
 not repealed by the statute with reference to 
 the practice of pharmacy, except, possibly, so 
 far as is necessary to allow sales of liquors for 
 medical purposes by registered apothecaries : 
 State V. Mercer, 58-182. 
 
 53. Before the changes made by the law 
 relating to the practice of pharmacy, apothe- 
 cai-ies were forbidden to sell intoxicating 
 liquors without permit. That statute so 
 modified the prior law as to except registered 
 apothecaries from the existing prohibition, 
 but 30 G. A., ch. 143, repeals the provisions 
 of the Code with reference to selling intoxi- 
 
946 
 
 INTOXICATING LIQUORS, III. 
 
 Seizure and destruction on search warrant. 
 
 eating liquors without permit, and enacts a 
 prohibition in almost the language of the 
 original statute with an increased penalty. It 
 thus appears that the provisions as to per- 
 mits are applicable to pharmacists : State v. 
 Bissell, 67-616. 
 
 54. On an indictment of a druggist not a 
 registered pharmacist for unlawfully keeping 
 liquor for sale, it is no defense that the sales 
 were made by a clerk- who was a registered 
 pharmacist, and for medicinal purposes only : 
 State V. Norton, 67-641. 
 
 55. A licensed pharmacist selling intoxicat- 
 ing liquors must use the utmost good faith 
 and ordinary caution, and show that the liquor 
 was only sold by him as medicine, and his 
 license will not protect him for artful sales of 
 liquor for other purposes than as medicine : 
 State V. Harris, 64^387; State v. Knowles, 
 57-669. 
 
 III. Seizueb and desteuction ox 
 
 SEARCH WAEEANT. 
 
 5G. Information for warrant: In Code, 
 § 1544, with reference to proceedings by search 
 warrant to seize intoxicating liquors illegally 
 kept for sale, the requirement that the infor- 
 mation for the search warrant shall describe 
 "as particularly as may be " the place where 
 the liquor is supposed to be kept, conveys the 
 idea of the greatest degree of certainty, and 
 the provisions are therefore not in conflict 
 with the constitutional provisions with ref- 
 erence to search warrants: Santo v. State. 
 a-165, 213. 
 
 57. Although the section requires that the 
 information be filed by " a credible resident 
 of " the county, it is not necessary that either 
 the information or the warrant should state 
 that it is made by such a person. That fact 
 is to be found by the justice before whom 
 information is filed : State v. Thompson, 44- 
 399; Weirv. Allen, 47-482. 
 
 58. What subject to seizure: It is only 
 liquors which are kept with the intention of 
 selling the same in violation of law that 
 may be seized : State v. Harris, 36-136. 
 
 59. The information must charge some 
 specific person as owner or keeper of the in- 
 toxicating liquor with an illegal intent, and 
 'the liquor cannot be destroyed unless the evi- 
 dence shows that the person who is charged 
 
 as owner or keeper had such intent : State r. 
 Intoodcating Liquors, 64-800. 
 
 60. It will not be presumed that the place 
 to be searched is a dweUing-house, etc.. 
 within the provisions of Code, g 1544, from 
 the mere fact that the information avers that 
 the liquors are kept in "a certain house or 
 place, known,-' etc. . Sanders v. State, 2- 
 230, 277. 
 
 61. A previous conviction of the owner of 
 the liquors for sellmg the same will not bar 
 a proceeding, under this section, against the 
 liquors themselves : Ibid. 
 
 62. The jurisdiction here conferred upon 
 justices of the peace is not exclusive, but 
 may also be exercised by police justices in 
 cities acting under special charter: Weir r. 
 Allen, 47-482. 
 
 63. Seizure: Liquors seized as here con- 
 templated cannot be taken from the officer 
 by replevin : Funk v. Israel, 5-438 ; State r: 
 Harris, 38-242; Weir \\ Allen, 47-482; Friex 
 V. Porch, 49-851. 
 
 64. A judgment rendered against the offi- 
 cer holding the liquor by stipulation on his 
 part should be set aside on motion of the at- 
 torney representing the prosecution in the 
 case against the liquors : Ft-ies v. Porch, 49- 
 351. 
 
 65. Where intoxicating liquors held for 
 sale are seized in the custody of an express 
 company, in a proceeding to condemn them , 
 it is immaterial whether the oSicers of the 
 company knew the character of the property 
 and the use to which it was to be put. It is 
 the duty of such company, under the statute. 
 
 . to know whether goods it receives for ship- 
 ment are such as the law authorizes to be 
 bartered and sold: State v. United States Ex. 
 Co., 70^. 
 
 66. Such a proceeding is not a criminal 
 one against the express company and it be- 
 comes a party voluntarily, if at all, to the 
 case: Ibid. 
 
 67. Proceeding criminal: These proceed- 
 ings for the condemnation of intoxicating 
 liquors illegally kept with intent to sell are 
 criminal in their nature, and the defendant 
 has the rights of the defendant in a criminal 
 prosecution. For instance, a verdict of the 
 jury for defendant should not be set aside 
 upon motion in arrest of judgment in behalf 
 of the prosecution : State v. Harris, 40-95. 
 
INTOXICATING LIQUORS, IV. 
 
 947 
 
 Illegal sale or keeping for sale. 
 
 lY. Illegal bale ok keeping fob 
 
 BALK. 
 
 68. Sales to minors or intoxicated per- 
 sons: Code, § 1539, declaring it unlawful for 
 any person to sell or give away by agent or 
 otherwise intoxicating liquors, including wine 
 or beer, to any minor, unless upon the written 
 order of his parent, guardian or physician, 
 or to sell the same to any intoxicated person, 
 or person in the habit of becoming intoxi- 
 cated, applies not only to persons having a 
 permit to sell liquors but to all persons: 
 Cobleigh v. McBride, 45-116. 
 
 69. To constitute the offense it is not neces- 
 sary that defendant should have known that 
 the person to whom sale was made was a 
 minor. Knowledge of such fact need neither 
 be charged nor proved : Jamison v. Burton, 
 43-282. 
 
 70. So in case of sale to a person in the 
 habit of becoming intoxicated, it is imma- 
 terial whether the seller knew the habits of 
 such person. He sells at his peril : Dudley v. 
 Sawtbine, 49-650. 
 
 71. The principal is liable for a sale made 
 by an agent in violation of this section, al- 
 though the agent was positively forbidden to 
 sell to such persons generally, or to the par- 
 ticular person to whom sale was made: 
 Ibid. 
 
 72. In case of sale to a minor the consent 
 of the parent wiU be no defense unless it is in 
 writing: State v. Coenan, 48-567. 
 
 73. This section is to be construed as pro- 
 hibiting the giving as well as the selling to 
 an intoxicated person. (See Code, § 1554): 
 Church V. Higham, 44-482. 
 
 74. Under.this section the seller of liquor 
 to an intoxicated person will be liable, al- 
 though the liquor is bought and paid for by a 
 thii-d person by way of treating such intoxi- 
 cated person: State V. Hubbard, 60-466. 
 
 75. Evidence of intoxication at a period 
 subsequent to the sale of the liquor should 
 not be received to prove that the person to 
 whom it was furnished was intoxicated at 
 the time of such sale : Ibid. 
 
 76. SaJe of wine or beer to a minor or in- 
 toxicated person, or person in the habit of 
 becoming intoxicated, will give a right to a 
 civil action for damages caused thereby: 
 Jeivett V. Wanshura, 43-574. 
 
 7 7. The penalty provided for by that sec- 
 tion for the benefit of the school fund may 
 be sued for by a citizen of thel county as well 
 as by the treasurer : Church v. Higham, 44- 
 488. 
 
 78. In an action by a private ,person to re- 
 cover for the benefit of the school fund the 
 penalty thus provided for, held not error to 
 instruct the jury that plaintiff had no more 
 interest in the result of the prosecution than 
 any other citizen, as he could not receive any- 
 thing personally from any judgment that 
 might be rendered : Cobleigh v. McBride, 45- 
 116. (The statute now provides that one- 
 half of the amount recovered shall go to the 
 informer. ) 
 
 79. Sales withont permit: Under provis- 
 ions for the punishment of the illegal sale of 
 intoxicating liquors, held, that the fact that 
 defendant acted as the clerk of another or as 
 volunteer and without pecuniary reward 
 would be no defense, clerks being liable 
 equally with their principals. Nor would it 
 be any defense that the principal has been 
 convicted for the same act: State v. Finan, 
 10-19. 
 
 SO. One who acts as agent or clerk of a 
 social club, to keep and deal out its liquors 
 to members purchasing and presenting tick- 
 ets, may be indicted, and punished under this 
 section: State v. Mercer, 33-405; Cantril v. 
 Sainer, 59-26. 
 
 81. Giving: Under a similar statutory pro- 
 vision, held, that the giving of intoxicating 
 liquor to another was not an offense unless 
 it was "in consideration of the purchase " of 
 other property as specified in the statute, and 
 that the fact that the liquors were so given, 
 if such was the case, should be averred: 
 State V. Finan, 10-19. 
 
 82. Under Code, § 1554, courts and jurors 
 are directed to construe the provisions of the 
 prohibitory law so as to cover the act of 
 giving as well as selling by persons not au- 
 thorized : Woolheather v. Bisley, 38-486, 491 : 
 Church V. Higham, 44-482. 
 
 83. Indictment or information: Under 
 the provisions of Code, § 1549, as to the suf- 
 ficiency of an indictment or information 
 for illegal sales, an information .charging de- 
 fendant with selling intoxicating liquors is 
 sufficient : Foreman v. Hunter, 59-550. 
 
 84. It is not necessary in an indictment for 
 
948 
 
 INTOXICATING LIQUORS, IV. 
 
 Illegal sale or keeping for sale. 
 
 the illegal sale to specify the kind of liquor 
 sold : State v. Whalen, 54-753. 
 
 85. However, if the kind of liquor is speci- 
 fied, it must be proven as charged : State v. 
 Hesner, 55-494. 
 
 86. An infoiination charging defendant 
 with selling, etc., is sufficient without stating 
 the method in which the sale was accom- 
 plished. A selling committed in any of the 
 different methods referred to by statute con- 
 stitutes one and the same offense : Devine v. 
 State, 4rAi3. 
 
 87. Any number of violations may be 
 charged in separate counts and a separate 
 conviction had on each : Walters V. State, 5- 
 507. 
 
 88. Under an ordinance providing a pun- 
 ishment for the sale of spirituous, vinous or 
 malt liquors not prohibited by statute, held, 
 that more than one offense might be included 
 in the same complaint : Jackson v. Boyd, 53- 
 536. 
 
 89. But the first and second, or second and 
 third, offenses cannot be charged in the same 
 indictment or information : Statev.Leis, 11- 
 416. 
 
 90. An information for the offense of ille- 
 gal sales should charge that defendant sold, 
 etc., to some person, giving the name if 
 known: State v. Allen, 32-491. 
 
 91. An indictment charging defendant 
 with keeping for sale and Selling intoxicating 
 liquors is good without the allegation that 
 they were so kept and sold in violation of 
 law : State v. Jordan, 39-387. 
 
 92. Where the information charges the 
 sales of liquor to different persons named, on 
 certain dates, the jury may convict on proof 
 of sales to any of the persons named at any 
 time within the statute of limitation and 
 prior to the filing of the information : State 
 V. Johnson, 69-623. 
 
 93. As the keeping of intoxicating liquors 
 for sale within the state is unlawful in itself, 
 unless the party thiis keeping and offering 
 for sale is authorized to sell, an indictment 
 charging the keeping of intoxicating liquors 
 in the state with intent to sell the same will 
 be sufficient, and the indictment need not 
 negative the authority to sell : State v. Col- 
 lins, 11-141. 
 
 94. Held, that the expression in an indict- 
 ment, " kept intoxicating liquors to sell," was 
 
 sufficient to charge the offense : Vaughn v. 
 State, 5-369. 
 
 95. An indictrhent charging that " defend- 
 ant did keep and was concerned, etc., in 
 owning and keeping intoxicating liquors 
 to sell," held to charge but one offense: 
 Ibid. 
 
 96. An information charging defendant 
 with keeping intoxicating liquors " for the 
 purpose of sale," instead of " with intent to 
 sell the same," as provided in the statute, 
 held sufficient to support a conviction : State 
 V. Mohr, 53-261. 
 
 97. Evidence: The provision (Code, § 1542) 
 that the finding of the liquor, etc., should be 
 presumptive evidence that it was illegally 
 kept for sale, heldnot unconstitutional : Santo 
 V. State, 2-165, 214. 
 
 98. Where a druggist has a permit to sell 
 intoxicating liquors but makes unlawful 
 sales, the fact that the owning and keeping 
 is with intent to make unlawful sales, and 
 therefore unlawful in itself, may be pre- 
 sumed: State V. Sartori, 55-340. 
 
 99. Where the only evidence of illegal 
 sale was the testimony of a clerk in defend- 
 ant's drug store that he sold at that store a 
 half-pint of liquor to a certain person, it not 
 appearing that defendant knew of such sale 
 or kept intoxicating liquors for sale, or that 
 there were any such in his possession or kept 
 by him for any purpose, held, that the con- 
 viction could not be sustained : State v. Find- 
 ley, 45-435. 
 
 1 00. In a prosecution for the illegal sale it 
 is proper to ask a witness whether he pur- 
 chased such liquor of defendant and whether 
 he knows of defendant selling such liquor to 
 any one. It is also proper to ask a witness 
 what defendant's business was: State v. 
 Roben, 39-424. 
 
 101. The testimony of a witness in a pros- 
 ecution for illegal sale that he bought and 
 drank in defendant's saloon what in his 
 opinion was whisky, held not incompetent 
 as being merely an opinion. A man who re- 
 sorts to a saloon for intoxicating liquors may 
 be presumed to be qualified to express an 
 opinion as to the liquor supplied him: State 
 V. Miller, 53-84. 
 
 102. I'uiiisliment: Under a previous act, 
 held, that while a person holding a permit 
 was liable on 'his bond for selling for im- 
 
INTOXICATING LIQUORS, IV, V. 
 
 949 
 
 Illegal sale or keeping for sale. — Nuisance. 
 
 proper purposes, he was also liable to a crim- 
 inal prosecution : State v. Adams, 20-486. 
 
 103. A person selling without a license 
 may also be punished for the crime of keep- 
 ing a nuisance under Code, § 1543, either in- 
 dependently of or in addition to the punish- 
 ment for the illegal sale : State v. Wayniclc, 
 45-516. 
 
 104. Where a previous conviction was not 
 ehown. held, that it was erroneous to impose 
 a greater fine than authorized for the first 
 offense: Walters v. State, 5-507. 
 
 105. But where, on appeal, the prosecution 
 offered to remit. the excess, the supreme 
 court modified the judgment in accordance 
 with such offer and affirmed it: State v. 
 ShaiD, 23-316. 
 
 108. Under such former jarovisions, also 
 Md, that the length of time of imprisonment 
 for non-payment of a fine imposed should be 
 as there specified rather than as provided in 
 the section regulating generally the extent 
 of imprisonment for non-payment of fines: 
 lUd. 
 
 107. Under former provisions held that it 
 was imperative that imprisonment sliould 
 form a part of the punishment : State v. Pat- 
 ton, 19-458. 
 
 108. Under the present provisions (20 G. 
 A., ch. 143) the length of imprisonment for 
 non-payment of a fine is as provided gener- 
 ally in Code, § i509:-Ex parte Tuidher, 69- 
 393. 
 
 109. By statutory provision a person sen- 
 tenced to imprisonment for non-payment of 
 a fine under the intoxicating liquor law is 
 not entitled to avail himself of the provisions 
 for the discharging of poor convicts : Hanks 
 
 ■ V. Workman, 69-600. 
 
 110. The provision of Code, § 1542, as 
 amended, that defendant shall stand com- 
 mitted until the fine and costs are paid, does 
 not take the offense out of the jurisdiction 
 of a justice of the peace. Although such im- 
 prisonment may extend beyond thirty days, 
 it is not as a punishment for the offense but 
 only as a method of enforcing the payment 
 of the fine: Albertsonv. Krieehbaum, 65-11. 
 
 111. Subsequent convictions: Before de- 
 • fendant can be found guilty of the offense of 
 
 a se3ond sale, he must be charged, convicted 
 and fined for the first offense of selling: 
 State V. Lais, 11-416. 
 
 112. Under an information charging a 
 second or third offense and a former convic- 
 tion, defendant may be found guilty of a 
 first offense: State v. Ensley, 10-149; State 
 V. Gaffeny, 66-262. 
 
 113. In such case the offense of a first sale 
 may be regarded as included in the offense of 
 a second sale charged in the indictment: 
 Ibid. 
 
 V. Nuisance committed in the il- 
 legal KEEPING OK selling; IN- 
 JUNCTION. 
 
 114. When a nuisance: The act of selling, 
 or keeping with intent to sell, in a building 
 or place, as defined by Code, § 1543, is a nui- 
 sance, while the keeping with intent to sell 
 and selling, as defined by the preceding sec- 
 tion, is not a nuisance: State v. Harris, 64r- 
 287. 
 
 115. In order to convict for a nuisance, it 
 must be shown that the liquors were sold or 
 kept with intent to sell in a building or place 
 frequented by persons desiring to procure in- 
 toxicating liquors : Ibid. 
 
 IH!. Code, § 1543, provides a punishment 
 for keeping nuisances for the sale of intoxi- 
 cating liquors, which is a different crime 
 from that of the unlawful sale, and the first 
 as well as subsequent offenses are punish- 
 able by indictment: State v. Howarth, 
 70 . 
 
 117. It is illegal for any pei'son to sell for 
 any purpose intoxicating liquors without a 
 permit from a board of supervisors, and the 
 use of a. building for such illegal sales is a 
 nuisance. So held as to a druggist selling 
 intoxicating liquors for a medicinal purpose: 
 State V. Waynick, 45-516. 
 
 118. To constitute the offense of nuisance, 
 it is not sufficient that defendant used and 
 kept a place with the intent and for the pur- 
 pose of selling intoxicating liquors therein 
 contrary to law. It must be charged and 
 shown that he manufactured, or sold, or 
 owned and kept with intent to sell, contrary 
 to law. The presence of the liquor in the 
 building is essential: State v. Hass. 22-193; 
 State V. Harris, 27-429. 
 
 1 19. A previous conviction or acquittal of 
 the crime of owning or keeping with intent 
 to sell will not bar a prosecution for a nui- 
 sance: State V. Harris, 64^287. 
 
950 
 
 INTOXICATING LIQUORS, V, 
 
 Nuisance committed in the illegal keeping or selling. 
 
 120. Indictment : The offense of nuisance 
 may be committed by the manufacture, or 
 the sale, or the keeping with intent to sell, 
 contrary to law. While an indictment charg- 
 ing the offense as committed in any one of 
 these three ways would be sufficient, yet one 
 charging its commission by any two, or all 
 three, of the specified unlawful acts, charges 
 but one offense, and is not bad for duplicity : 
 State V. Becker, 20-438 ; State v. Baughman, 
 20-497. 
 
 121. Two indictments charging the offense 
 as committed in two different ways charge 
 the same and not two separate offenses ; and 
 the fact that the acts set out in the indict- 
 ments are charged as committed at different 
 times is not conclusive that the offenses are 
 separate and not the same, since the time 
 need not be proved as alleged: State v. Lay- 
 ton, 25-193. 
 
 122. An allegation that a certain building 
 was used by defendants as a place for the 
 sale of intoxicating liquors, and that they 
 did then and there keep said intoxicating 
 liquors for sale in said building with intent 
 to sell, held suflScient without further aver- 
 ment that said building was under their con- 
 trol : State v. Schilling, 14^455. 
 
 123. An indictment charging the offense 
 as committed by using and keeping a room 
 and place fqr the purpose of selling and by 
 selling therein intoxicating liquors in viola- 
 tion of § 1540, held sufficient : State v. Free- 
 man, 27-333. 
 
 124. And so held, also, where the indict- 
 ment, similar to the foregoing, charged the 
 acts as "contrary to law," without specify- 
 ing the section: State v. Allen, 32^348. 
 
 125. It is not necessary that the nuisance 
 should continue up to and exist at the time 
 of the indictment to make it punishable: 
 State V. Schilling, 14-455. 
 
 126. An indictment charging the keeping 
 and using of "a certain building or place," 
 or "a certain fi'ame building," for the pur- 
 poses prohibited, is sufficiently definite: 
 Ibid.; State V. Kreig, 18-462. 
 
 127. A matter of local description, though 
 it need not have been stated, must be proved 
 as laid : State v. Crogan, 8-523. 
 
 128. But on the trial of an indictment 
 under this section, which charged the use of 
 a building, etc., ''next door west of Cham- 
 
 ber's store," etc., while the proof was that the 
 building was next door west from "Cham- 
 berlain's store," the court were equally di- 
 vided as to whether the variance was fatal : 
 State V. Verden, 24-126. 
 
 120. The indictment need not state the 
 names of the persons to whom liquor was 
 sold: State v. Becker, 20-438. 
 
 130. An indictment for keeping a nuisance 
 need not state the names of the persons to 
 whom illegal sales are made: State v. Jor- 
 dan, 39-387. 
 
 131. Evidence: Proof of the manufact- 
 ure, sale, or keeping with intent to sell, in 
 violation of law, is presumptive proof' of 
 the offense oi nuisance: State v. Ouisen- 
 hause, 20-227 ; State v. Baughman, 20-497. 
 
 132. And this is true even though the 
 sale be secret and by clerk : State v. Free- 
 man, 27-333. 
 
 133. As proof of the finding of liquor in 
 the possession of accused, in any place ex- 
 cept the private dwelling, is by Code, g 1542, 
 presumptive evidence that such liquor is. il- 
 legally held for sale, the proof of Such find- 
 ing will be sufficient evidence of a nuisance 
 committed by "keeping with intent to sell:" 
 State V. Norton, 41-430. 
 
 1.34. The state is not bound to show affirm- 
 atively that the liquors were not kept in the 
 original vessels or packages, or that they 
 were not sold for proper purposes, these be- 
 ing proper matters of defense : State v. Becker, 
 20-438. 
 
 1 35. Sales by clerk : A barkeeper or clerk, 
 having no interest in the business, may be 
 convicted of the crime of nuisance for the 
 mere sale by him of intoxicating liquors in a 
 building used for that purpose: State v. 
 Stucker, 33-395. 
 
 136. Where liquors are lawfully kept for 
 sale and with intent to sell them for lawful 
 purposes, an illegal sale by an agent without 
 the knowledge or consent of the principal 
 will not render such principal ciiminally liable 
 for keeping a nuisance : State v. Hayes, 67-27. 
 
 187. Punishment: The punishment for 
 the crime of nuisance, as defined in this con- 
 nection, is that provided in Code, § 4092, for 
 the crime of nuisance generally: State v. 
 McGrew, 11-112; State i;. Collins, 11-141; 
 State V. Schilling, 14-455 ; State v. Little, 48-- 
 51, 54; State v. Dean, 44-648, 
 
INTOXICATING LIQUORS, V, VI. 
 
 951 
 
 Injunction. — Recovery of civil damages. 
 
 138. A party may be punished for the of- 
 fense of keeping a nuisance either independ- 
 ently of or in addition to the punishment for 
 illegal selling : State v. Waynick, 4.'5-516. 
 
 139. Abatement: The statutory provisions 
 (21 G. A., ch. 66) with reference to the re- 
 moval and abatement of the nuisance, where, 
 in a civil action, the fact that premises 
 constitute a nuisance has been determined, 
 are applicable to acts committed before the 
 enactment of the statute : McLane v. Bonn, 
 70 . 
 
 140. liability of owner of premises: 
 Where premises are leased for a lawful pur- 
 pose, to render the owner liable to the penal- 
 ties herein provided, it is not suiiicient to 
 show that he knew of their unlawful use, 
 without taking steps to prevent it; but it 
 must appear that, after he became aware of 
 such illegal use, he did some act or made 
 some declaration affirmatively assenting 
 thereto : State v. Ballingall, 43-87. 
 
 141. Where leased property is being used 
 as a place for the unlawful sale of liquors, 
 the landlord may be made a party defendant 
 to the action to abate such place as a nui- 
 sance without regard to his previous knowl- 
 edge of such use. The building becomes a 
 nuisance and its continuance as such may be 
 enjoined and prevented : Martin v. Blattncr, 
 68-286. 
 
 142. In a prosecution against a defendant 
 for illegal sale of intoxicating liquor made 
 upon his premises, held, under previous stat- 
 utory provisions, that proof must be inti'O- 
 duced that the sale was with the authority or 
 consent of such defendant: Goods v. State, 
 3G. Gr.,566. 
 
 143. Injunction : The action by a citizen 
 of the county to obtain an injunction as con- 
 templated by 20 G. A., ch. 143, although 
 prosecuted in the name of such citizen as a 
 private party, is for the public benefit, and 
 it cannot be maintained except by a citizen 
 of the county. A wife who has been in- 
 jured in her means of support by illegal 
 sales cannot maintain the action for an in- 
 junction if she is a resident of another 
 county: Applegate v. Winebrenner, 66-67. 
 
 144. The statutory provision just raferred 
 to is not unconstitutional as depriving de- 
 fendant of the right of trial by jury: lAttk- 
 
 ■tonv. Fritz, G5-i88. 
 
 145. In such cases a preliminaiy injunc- 
 tion may be granted as in otlier proceedings 
 for an injunction : Ibid. 
 
 146. The owner of the building in which 
 unlawful sales of liquor are conducted per- 
 mitting such sales by a tenant may properly 
 be enjoined from further permitting such 
 use : Gray v. Stienes, 69-124. 
 
 147. A temporary injunction should not be 
 awarded against the premises. The injunc- 
 tion against the occupant and owner is aU 
 that is contemplated at that stage of the pro- 
 ceedings: Ibid. 
 
 148. An action to enjoin a nuisance caused 
 by the selling and keeping for sale of intoxi- 
 cating liquors contrary to law, held not to 
 involve a federal question in such sense as to 
 authorize a removal of the cause to the 
 federal court: Lemen v. Wagner, 68-660; 
 Schmidt v. Cobb, 119 U. S., £86 (the supreme 
 court of the United States being equally 
 divided). 
 
 149. While the penalty of fifty dollars for 
 the violation of an injunction in such cases 
 is extraordinary, the statute imposing such a 
 penalty is not unconstitutional : Jordan v. 
 Circuit Court, 69-177. *■ 
 
 Disorderly houses: As to the oilense of 
 nuisance in keeping a house where drunken- 
 ness, etc. , is carried on, see Criminal Law, 
 §§ 702-713. 
 
 YI. Eecoveet of civil damages. 
 
 IfiO. General liability for damages: A 
 
 physician called to attend a person for an in- 
 jury received or for sickness resulting from 
 intoxication has no claim against the person 
 selUng the liquors: Sansom v. Greenough, 
 55-127. 
 
 151. Action by wife, parent, cliild, etc: 
 The cause of action provided for in Code, 
 g 1557, authorizing a recovery by a wife, par- 
 ent, child or other person injured in person 
 or property or means of support by an intox- 
 icated person, or in consequence of the intoxi- 
 cation of any person, against the person caus- 
 ing the intoxication by the sale of intoxicating 
 Uquors, is the selling of the Uquors, yet the 
 foundation of the action is the wrongful act 
 of defendant in causing the intoxication of 
 the husband, father or other person, which 
 is a personal injury to him, and the action is 
 
952 
 
 INTOXICATING LIQUOES, VI. 
 
 Recovery of civil damages. 
 
 one for injury to the person in such sense 
 that it must be brouglit within two years as 
 provided by the statute of limitations in ref- 
 erence to that class of actions: Emniert v. 
 Grill, 39-690. 
 
 152. In an action by a plaintiff suing as 
 wife, the fact of marriage is not essential 
 and she may recover without proof thereof : 
 Kearney v. Fitzgerald, 43-580. 
 
 153. By the provisions of this section a 
 right of action was given for the sale of wine 
 and beer to minors or intoxicated persons 
 when sales of those liquors were in general 
 not prohibited: Jewett v. Wanshura, ^3-574,. 
 
 154. Before the passage of the present law 
 prohibiting entirely sales of wine and beer, 
 there was no cause of action for injuries due 
 to the sale of beer, unless it was sold in vio- 
 lation of Code, § 1539, prohibiting the sale of 
 beer to minors, intoxicated persons, etc. : 
 Myers v. Conway, 55-166. 
 
 155. And before the enactment of that 
 statutory provision there was no liability 
 whatever to civil damages for injury result- 
 ing from the sale of beer : Woody v. Coenan, 
 44-19. 
 
 156. Giviug: Damages arising from the 
 giving as well as from the sale of intoxicat- 
 ing liquors may be recovered : Welch v. Ju- 
 genheimer, 56-11. 
 
 157. Under circumstances indicating that 
 liquor furnished to plaintiff's husband was 
 for a pecuniary compensation, although not 
 directly paid for nor charged to him, held, 
 that it was not error to allow the wife to re- 
 cover damages for such act: Rafferty v. 
 Buehman, 46-195. 
 
 158. Damages for death: The wife may 
 recover damages resulting from the death of 
 her husband caused by intoxication : Ibid. 
 
 159. For what injuries: In order that a 
 right of action may exist, the liquor sold 
 must cause or contribute to intoxication, and 
 the wife must sustain some injury by the in- 
 toxication: Welch V. Jugenheimer, 56-11. 
 
 160. The damages sustained "in person" 
 as contemplated by the statute mean in body, 
 and threatening language, vulgar conduct, 
 etc., directed towards plaintiff by her hus- 
 band, but not resulting in physical injury or 
 impairment of health, will not entitle her to 
 either actual or exemplary damages as against 
 the person causing the intoxication of her 
 
 husband : Calloway v. Laydon, 47-450 ; Welch 
 V. Jugenheimer, 56-11. 
 
 161. For wounded feelings, disgrace, etc., 
 not i-esulting from injury to the person, no re- 
 covery can be had, but for mental anguish, 
 shame or suffering resulting from violence 
 to the person, plaintiff is entitled to recover: 
 Ward V. Thompson, 48-588. 
 
 162. Plaintiff may recover for injuries to 
 person, property and means of support, but 
 not for wounded feelings or disgrace or loss 
 of standing in society : Jackson v. Noble, 54- 
 641. 
 
 163. The occupation and business capacity 
 of the husband may be shown, and the man- 
 ner in which he supported plaintiff previous 
 to the intoxication, as showing of what plaint- 
 iff was deprived by reason of such intoxica- 
 tion: Ibid. 
 
 164. If it is shown that defendant has de- 
 prived plaintiff of the assistance of her hus- 
 band in the support of herself and family by 
 causing his frequent intoxication, her means 
 of support would thus be shown to have been 
 injured to that extent without reference to 
 her condition before such in-jury: Wool- 
 heather V. Bisley, 38-486. 
 
 165. The fact that plaintiff's husband-has 
 been for a long time habitually drunk can- 
 not be shown in evidence for the purpose of 
 affecting the wife's damages, but evidence 
 as to the pi'evious habits of the husband was 
 material in such cases under the statute by 
 which sale of beer was le^al, except to per- 
 sons in the habit of becoming intoxicated : 
 Huff V. Aultman, 69-71. 
 
 166. Exemplary damages: This statutory 
 provision gives a new and peculiar remedy 
 not only for actual but also for exemplary 
 damages. The injury is of a peculiar char- 
 acter not recognized or redressed by the 
 common law: Dunlavey v. Watson, 38-398. 
 
 167. Exemplary damages may be allowed 
 although no tort or breach of the peace has 
 resulted : Ooodenough v. McGrew, 44-670. 
 
 168. While threatening language and vul- 
 gar conduct by the husband towards the wife 
 may result in the impairment of health, and 
 thus amount to an injury for which damages 
 might be recovered, yet such words and con- 
 duct unaccompanied with physical injury 
 will not entitle her to actual damages, and 
 therefore they cannot be a ground for exem- 
 
INTOXICATING LIQUORS, VI. 
 
 953 
 
 Recovery of civil damages. 
 
 plary damages, even where damages on other 
 grounds are recovered. The exemplary dam- 
 ages in such case must be such as are called 
 for under the circumstances under which the 
 actual damages axe sustained: Calloway v. 
 Laydjn, 47-456. 
 
 169. Where it appeared that defendant 
 sold plaintiff's husband intoxicating liquor 
 when lie was in a state of intoxication, and 
 continued to sell him liquors, knowing that 
 he was in the habit of becoming intoxicated, 
 held, that a verdict for exemplary damages 
 •was not erroneous : Weitz v. Ewen, 50-34. 
 
 1 70. Exemplary damages may be awarded 
 in every case brought iinder this section 
 where there has been a wilful violation of 
 the statute, which has occasioned injury, for 
 which a right of action is given. The party 
 injured is entitled to exemplary damages in 
 a proper case, and the awarding of them is 
 not left to the discretion of tlie jury : Fox v. 
 Wunderlich, 64-187. 
 
 171. No special prayer for exemplary dam- 
 ages is required : Oustafnonv. Wind, 62-281. 
 
 172. Who liable: The right of action is 
 given against any person who actually makes 
 the sale of the intoxicating liquor, whether 
 he be the owner, or the son, clerk, or servant 
 of such owner : Worley v. Spurgeon, 38-465. 
 
 173. It is sufficient to hold a defendant 
 liable, if it be shown that liquor sold by him 
 contributed to the intoxication complained 
 of: Woolheather v. Eidey, 38-486. 
 
 174. Joint liability: A joint action will 
 not he against 'several defendants having in- 
 dependent places of business, where the 
 injuries are successive and not the result of 
 one particular intoxication. Code, § 2550, is 
 not applicable in such cases: La France v. 
 Krayer, 42-143. 
 
 175. Where a joint action will not lie, each 
 party is liable for the damages which he oc- 
 casions, and a settlement with one does not 
 bar an action against another : Jewett v. Wan- 
 shura, 43-574. 
 
 1 76. But defendant may show that plaint- 
 iff has brought actions and obtained judg- 
 ments against others for causing the same 
 habitual intoxication, not by way of defense 
 or mitigation of damages, but to show the 
 actual extent of the damage caused by de- 
 fendant's own act, and that he was not re- 
 sponsible for the entire damage resulting 
 
 from such intoxication : Ibid. ; Ennis v. Shi- 
 ley, 47-532; Englekenv. Webber, 41-558. 
 
 177. The fact that plaintiff has brought 
 another action against another person cover- 
 ing injuries caused in the same manner, and 
 during the same time, is not a matter which 
 may be shown by way of defense: 'Ward v. 
 Thompson, 48-588. 
 
 178. While defendant in such action may 
 show that he was only liable for part of the 
 injuries resulting from the intoxication on 
 the ground that plaintiff received compensa- 
 tion in other suits for injuries from the same 
 intoxication, he should prove that such sales 
 for which the other suits were brought were 
 made during the same time as those sued for 
 during the pending action, and if defendant 
 desires to rely upon such partial defense, it 
 is questionable whether he should not set it 
 up in bis answer : JacJcson v. Noble, 54-641. 
 
 1 79. Where the intoxication causing the 
 damages sued for was produced on some oc- 
 casions by defendant and at other times by 
 others, the defendant should only be held 
 liable for the damages to which he contrib- 
 uted, and the difficulty of thus apportion- 
 ing the damages will not render him liable 
 for the whole: Huggins v. Kavanagh, 52- 
 368. 
 
 180. If the damage is the proximate result 
 of a particular intoxication, all parties con- 
 tributing thereto are jointly liable, but not 
 if it is the result of a besotted condition: 
 Hitchnerv. Ehlers, 44r-40. 
 
 181. Where a wife sued for damages from 
 the suicide of her husband caused by intoxi- 
 cation, held, that if the act resulted from the 
 particular intoxication during which it was 
 committed, all persons who contributed to 
 such intoxication by selling him liquor were 
 jointly liable for the injuries she sustained 
 in her means of support, but if it resulted not 
 alone from that particular intoxication but 
 from a besotted condition, those contributing 
 to such besotted condition but not to the im- 
 mediate intoxication would not be jointly 
 liable with those who did contribute to such 
 particular intoxication : Ibid. 
 
 182. Where plaintiff did not rely on or 
 prove any specific act or acts of intoxication, 
 but it appeared that her husband had been 
 in the habit of becoming intoxicated for 
 many years, procuring liquor from any per- 
 
954: 
 
 INTOXICATING LIQUORS, VI. 
 
 Recovery of civil damages. 
 
 son who would let him have it, held, that the 
 several persons who had sold him liquor 
 could not be considered as joint wrong- 
 doers, but that each was severally liable for 
 the damage caused by his own acts : Rich- 
 mond V. Shickler, 57-486. 
 
 183. Persons who have contributed to ha- 
 bitual intoxication are not to be held respon- 
 sible as joint wrong-doers, but each is liable 
 for the part of the damages caused by his acts : 
 Ennis v. Shiley, 47-553 ; Flint v. Gauer, 66- 
 696. 
 
 184. Plaintiff contributing to injury: 
 The wife cannot recover damages where she 
 has herself contributed to her husband's in- 
 toxication : Engleken i'. Hilger, 43-563 ; Kear- 
 ney v. Fitzgerald, 43-580. 
 
 185. The fact that during the period cov- 
 ered by the wife's action for damages for sale 
 of intoxicating liquors to her husband, she 
 herself bought liquor for him, will not be 
 such contribution on her part to the injury 
 as to defeat her recovery if she had reason to 
 beheve that she would thereby keep him away 
 from saloons and prevent the injuries for 
 which she sues : Ward v. Thompson, 48-588. 
 
 186. In such case the fact that the wife 
 has contributed to the condition of the hus- 
 band by at times giving him permits to buy 
 liquor will not absolutely defeat her recovery. 
 Such connivance or assent will only defeat re- 
 covery for damages resulting from or caused 
 by intoxication contributed to or connived at 
 by her : Rafferty v. Buckman, 46-195. 
 
 187. The fact that the wife gives to the 
 husband at his request sums of money be- 
 longing to him and placed by him in her cus- 
 tody, with knowledge on her part that por- 
 tions thereof will be used for the purpose of 
 procuring intoxicating liquors, will not neces- 
 sarily constitute a voluntary contribution on 
 her part to the intoxication of her husband, 
 so as to defeat her right of recovering dam- 
 ages against tjie persons causing such intoxi- 
 cation : Huff V. Aultman, 69-71. 
 
 188. Evidence: In an action by the wife 
 for damages for a sale of intoxicating liquors 
 to her husband, the burden of proof is upon 
 plaintiff to establish the fact that defendant 
 sold liquor to the husband, and also that 
 such liquor produced or contributed to pro- 
 duce the intoxication complained of ; Macleod 
 V. Qeyer, 53-615. 
 
 189. In such an action by the wife, held 
 not error to allow the husband as a witness 
 to state about how much money he had paid 
 defendant for liquor, such fact being material 
 as tending to show the injury to plaintiff's 
 means of support, but not otherwise: Ward 
 V. 2'hompson, 48-588. 
 
 190. Held, that in such cases indictments 
 against defendant and convictions thereon 
 for illegal sales of intoxicating liquors were 
 not admissible in evidence against defendant, 
 at least where it was not shown that the in- 
 dictments were founded upon unlawful sales 
 made to plaintiff's husband: Applegate v. 
 Winebrenner, 67-235. 
 
 191. Evidence of an assault committed 
 upon the wife by the husband, held not admis- 
 sible in an action by the wife against defend- 
 ant for the recovery of damages for illegal 
 sale of liquors to the husband, it not appear- 
 ing that at the time of the assault the husband 
 was intoxicated, nor that his intoxication, if 
 any, was contributed to by defendant : Ibid. 
 
 192. The evidence necessary or competent 
 to establish the injury and its extent is not 
 confined within the bounds admissible to 
 establish a common law tort: Dunlavey v. 
 Watson, 38-398. 
 
 193. Evidence as to the age, condition, 
 circumstances, etc., of the husband, his hab- 
 its of industry and his ability to support 
 his wife before and after the acts complained 
 of, may be received : Ibid. 
 
 194. It is error, in an action by the wife, to 
 allow evidence as to number, age, etc., of 
 children: Huggins v. Kavanagh, 52-368; 
 Welch V. Jugenheimer, 56-11. 
 
 195. The wife may show the number and 
 ajes of her children belonging to her family 
 if she also shows that defendant had knowl- 
 edge of the facts, and that they were in 
 danger of being injured or compelled to 
 leave home, and after such knowledge wan- 
 tonly continued to sell liquor to the hus- 
 band, by reason of which the right of 
 action arose, such evidence being pertinent 
 to the question of exemplary, not of actual, 
 damages : Ward v. Thompson, 48-588. 
 
 196. Life tables: It is doubtful whether 
 the CarUsle life tables are admissible as evi- 
 dence in determining the amount of dam- 
 ages in such an action, the measure of actual 
 damage being the amount which would. 
 
INTOXICATING LIQUORS, VII. 
 
 955 
 
 Liens of judgments for illegal sales. 
 
 from a pecuniary point of view, compensate 
 the wife for the Injury : Rafferty v. Buck- 
 man, 46-195. 
 
 VII. Liens of judgments for illegal 
 
 SALES. 
 
 197. When .iccrue: The right to make 
 the judgment a lien upon the property where 
 the business is carried on, as is done by 
 Code, § 1558, rests in the exercise of the po- 
 lice power and not in the right of eminent 
 domain: Polk County v. Hierb, 37-361. 
 
 198. Property can only be made liable 
 after it has been established in a competent 
 court by a legal jury that it was used for the 
 illegal purpose, with the knowledge or con- 
 sent of the owner, and the statute does not, 
 therefore, authorize the taking of pi-irate 
 property without a trial : Ibid. 
 
 199. That under this section a party is lia- 
 ble to a pecuniary forfeiture does not con- 
 stitute the act or omission so punished a 
 crime. The section is not an ex post facto 
 law, nor does it impair vested rights : Ibid. 
 
 200. Method of proceeding: The party 
 injured by the illegal sale may bring action 
 against the seller alone, and by subsequent 
 action against the owner enforce the judg- 
 ment previously obtained; or may join the 
 seller and the owner of the building in the 
 same action : La France v. Krayer, 43-143. 
 
 201. The action for damages against the 
 person selling may be joined with that against 
 the person owning the premises in which sales 
 are made and against which it is sought to 
 have the judgment established as a lien: 
 Loan V. Hiney, 53-89. 
 
 202. If a joint action is brought, either 
 party is entitled to a jury trial on the ques- 
 tion of the illegal sale and damages, and the 
 owner is entitled to a jury trial also on the 
 question as to whether such use of the 
 premises was with his consent and knowl-: 
 edge: lUd. 
 
 203. Where plaintiff brought action for 
 damages for sale of intoxicating liquors 
 against three defendants jointly as sellers, and 
 joined with them as defendant the owner of 
 the property in which the business was ear- 
 ned on, and two separate judgments were 
 rendered at separate trials against two sellers 
 respectively, and at a third trial the judg- 
 
 ments were made a lien against the property 
 of the owner, held, that on appeal of tho 
 owner from final judgment against him, he 
 could not set up the fact of recovery of the 
 former judgment against another one of the 
 sellers hy default : Putney v. O'Brien, 53-117. 
 
 204. In such case, held, that plaintiff might 
 elect which judgment she would enforce and 
 the other would be treated as satisfied : Ibid. 
 
 203. Where it is sought to subject prop- 
 erty alleged to have been fraudulently con- 
 veyed for the purpose of evading the lien of 
 a judgment, to the payment of the same, the 
 action against the grantee is equitable in its 
 nature, and the defendant cannot demand a 
 jury trial: Buckham v. Grape, 65-535. 
 
 206. In such an action against the holder of 
 the legal title, who was not a party to the 
 original action in which judgment was re- 
 covered, the record of the judgment in the 
 former action may be introduced in evidence 
 for the purpose of showing that the plaintiff 
 has recovered judgment against the defendant 
 in such former action, but not as evidence of 
 the amount for which the lieu should be es- 
 tablished, except that in no event can the 
 lien be established for any greater amount : 
 Ibid. 
 
 207. The court establishing the lien of a 
 judgment for illegal sale of liquors against 
 the premises in which the same were sold 
 should ascertain specifically the property 
 upon which the lien shall attach. Such a judg- 
 ment should not be entered where there is no 
 evidence on the trial showing the title to be 
 in defendant, and that fact is only shown by 
 an affidavit filed after the verdict : Flint v. 
 Gauer, 66-696. 
 
 208. Knowledge of owner: A judgment 
 in a proceeding to recover penalties for illegal 
 sales to minors or intoxicated persons is not 
 a lien upon the premises where such sales 
 were made, unless the owner had knowledge 
 of and consented to illegal sales of that 
 character. His knowledge of and consent to 
 sales without pennit would not be sufficient. 
 The owner should be shown to have had 
 knowledge of and to have consented to the 
 unlawful act on account of which the judg- 
 ment was recovered : Cobleigh v. McBride, 
 45-116; Myers V. Kirt, 64-37. 
 
 209. Both knowledge and assent, on the 
 part of the owner of the premises unlawfully 
 
956 
 
 INTOXICATING LIQUORS, VIII. 
 
 Contracts for illegal sales void ; recovery of purchase price. 
 
 used, must be shown to render them subject 
 to the lien of the judgment: Meyers v. Kirt, 
 57-421. 
 
 210. Facts in a particular case held to 
 show knowledge and assent on the part of 
 the owner of the building : Putney v. O'Brien, 
 53-117. 
 
 211. The consent of the owner need not be 
 shown by any positive or affirmative act, but 
 may be inferred from circumstances and 
 knowledge of the illegal sales under such 
 conditions as properly to call forth a protest, 
 and a failure to make any objection : Loan 
 V. Etzel, 63-429. 
 
 212. Lien attiicbes when; conveyance 
 subject to: A purchaser of the property oc- 
 cupied and used for purposes of illegal sale, 
 who purchases pending an action against the 
 seller and the owner, in which it is sought to 
 make any judgment recovered a lien upon 
 the property, takes subject to lien of any 
 such judgment. The doctone of lis pendens 
 applies : O'Brien v. Putney, 55-293. 
 
 213. The lien of the judgment upon the 
 premises attaches only on the i-endition 
 thereof, and is subordinate to that of a mort- 
 gage previously executed: Goodenough v. 
 McCoid, 44^659. 
 
 214. Vv'here a conveyance of property on 
 which it is sought to establish a lien is made 
 pending the action, that fact is no defense for 
 the original owner, against whom a lien is 
 sought to be established : Myers v. Kirt, 68- 
 124. 
 
 VIII. Contracts fob illegal sales 
 
 VOID ; EECOVEEY OF PURCHASE 
 PEICB. 
 
 215. Recovery of payments made: Under 
 Code, § 1550, providing that payment or 
 compensation received for illegal sales of in- 
 toxicating liquor may be recovered back, a 
 claim for money paid for intoxicating liquors 
 may be set up by way of counter-claim in an 
 action on account: Tolman v. Johnson, 43- 
 137. 
 
 216. A manufacturer not being allowed to 
 sell without the permit required by Code, 
 § 1526, even to one having such permit, 
 money paid on such sale may be recovered 
 back: Becker v. Betten, 39-668. 
 
 217. The giving of a note for liquors does 
 ^ot constitute payment, even when, it has 
 
 been sold and transferred by the payee, and 
 until it is actually paid, the maker cannot 
 maintain an action for the amount thereof: 
 Carlin v. Heller, 34-356. 
 
 218. The action to recover money paid will 
 not be barred until five years from time of 
 payment: Woodward v. Squires, 41-677. 
 
 219, One who has exchanged property for 
 liquors sold in violation of law may, instead 
 of suing upon a promise to pay therefor, 
 treat the transaction as void and sue for the 
 value of the property; and if accord and 
 satisfaction is then set up as a defense, he 
 may, in I'eply, set up the illegal nature of the 
 transaction : Smith v. Grable. 14-429. 
 
 i20. The action to recover money paid ia 
 civil, and not quasi criminal in character; 
 Woodward v. Squires, 39-485. 
 
 221. A party who has made payments for 
 illegal sales of liquors and is entitled to re- 
 cover back the purchase money paid, being 
 garnished for the indebtedness tliereupon 
 arising to him from the person to whom the 
 payments were made, it must be shown, in 
 order to warrant judgment against him as 
 garnishee, that the liquors were intoxicating 
 and sold in violation of law: Church v. Simp- 
 son, 25-408. 
 
 222. The provisions for recovery of money 
 paid do not apply to a non-resident selling 
 liquor without permit to a registered phar- 
 macist for lawful purposes and receiving 
 payment therefor in another state : Kohn v. 
 Meleher, 29 Fed. Rep., 438. 
 
 223. Sales, secnritics, etc., void: Under 
 the further provisions of the section just re- 
 ferred to, that all sales, conveyances, liens, 
 etc., and securities of every kind which shall 
 either in whole or in part have been made 
 for or on account of illegal sales of intoxicat- 
 ing liquors, shall be utterly null and void 
 against all persons in all cases, etc., held, 
 that the word securities includes promissory 
 notes: Taylor v. Pickett, 53-467. 
 
 224. A promissory note given in part for 
 intoxicating liquors is wholly void: Ibid.; 
 Braitch v. Guelick, 37-313. 
 
 225. But where a note was given for the 
 amount due on an account, some of the items 
 of which were legal and others illegal as be- 
 ing for intoxicating liquors, and the account 
 was continued and iiayments afterwards 
 made on account generally; held, that the 
 
INTOXICATING LIQUORS, VIII. 
 
 95T 
 
 Contracts for illegal sales void ; recovery of purchase price. 
 
 note being void, the legal items of account 
 included therein should be regarded as still 
 due on account, and the subsequent pay- 
 ments applied thereto : Quigley v. Diiffey, 52- 
 
 610. 
 
 226. An assignment of a contract against 
 a third person, made for intoxicating liquors 
 sold in violation of law, is void, and the 
 assignee cannot recover against such third 
 person thereon : Davis v. Slater, 17-250. 
 
 227. A judgment recovered on a claim 
 founded upon the illegal sale of intoxicating 
 liquors is not void. The defense must be in- 
 terposed before judgment or it is lost : Smith 
 V. Leddy, 50-112. 
 
 228. A person who has sold another in- 
 toxicating liquor in violation of law cannot, 
 on the ground that the sale is void, recover 
 them back in an action of replevin from at- 
 taching creditors of his vendee. Being par- 
 iiceps criminis, the law will leave the seller 
 where it finds him : Marienthal v. Shafer, 6- 
 S23. 
 
 229. In an action on a note in whjph de- 
 fendant pleaded that it was given to him for 
 liquors sold in violation of law, held, that an 
 indictment against him for nuisance com- 
 mitted in the sale of intoxicating liquors was 
 not competent evidence in his behalf : Taylor 
 V. Pickett, 52-467. 
 
 2S0. Bona fide purchasers: A party claim- 
 ing the benefit of the provision in such sec- 
 tion protecting bona fide holders for value 
 has the burden of showing that he is such 
 holder without notice: Eock Island Nat. 
 Bank v. Nelson, 41-563. 
 
 231. An assignee after maturity is not pro- 
 tected: Barlow v. Scott's Adm'ra, 12-63. 
 
 232. Siile made in another state: Aeon- 
 tract for the sale of liquors, made in another 
 state, with the intention of violating the laws 
 of this state, will not be enforced in our 
 courts, although good where made: Davis 
 V. Branson, 6-410. 
 
 233. Where the contract of sale is made 
 outside of the state, it must, to render the 
 contract void, be made to appear affirm- 
 atively that the vendor, intended thereby to 
 enable the vendee to violate the laws of this 
 state: Whitlockv. Workman, 15-351. 
 
 234. It must be shown, not only that the 
 vendor knew of the laws of tliis state, but 
 that he made the sale with the intention of 
 
 enabling the purchaser to violate them: 
 Second Nat. Bank v. Curren, 36-555. 
 
 235. But while mere knowledge on the 
 part of the vendor that the purchaser in- 
 tends to violate the liquor law of this state 
 may not vitiate the sale, yet it is a fact from 
 which the jury might infer the intent to 
 enable the buyer to violate such law : Tegler 
 V. Shipman, ;-i3-I94, 200. 
 
 236. Evidence that one of the partners in 
 the firm making the sale had been in this 
 state before the sale was made and had 
 knowledge of the existence of the law in 
 this state with reference to the suppression 
 of intemperance, held admissible in order to 
 show that he must have known that under 
 the circumstances stated to him, the sale of 
 the liquor by the purchaser in Iowa would 
 be illegal: Rindskoff v. Curran, 34-325. 
 
 237. A sale of intoxicating liquors in vio- 
 lation of law, made in this state by an agent 
 of a firm in another state, is void : Second 
 Nat. Bank v. Curren, 36-555; Taylor v. 
 Pickett, 52-467 ; Schuenfeldt v. Jitnkennann, 
 20 Fed. Rep., 357. 
 
 23S. If the order for liquor is taken in 
 this state by such agent, but subject to the 
 approval or disapproval of his principal, the 
 sale will be held as made in the state where 
 the principal resides, and will be enforceable 
 in Iowa unless made with intent to vio- 
 late its laws: Tegler v. Shipman, 33-194; 
 Schuenfeldt v. Junkermann, 20 Fed. Eep., 
 357. 
 
 239. Where a sale was made in another 
 state, but notes in payment of the purchase 
 money were executed in Iowa and forwarded 
 to the seller, held, that the place where the 
 contract and delivery was made, and not the 
 place where the notes were executed, was 
 the place of contract: Whitlock v. Work- 
 man, 15-351. 
 
 240. Where liquors are ordered by mail by 
 a resident of one state, the contract is deemed 
 made in the place where the order is re- 
 ceived and the goods deUveied to the carrier 
 for shipment ; and the same rule applies to 
 a contract taken by an agent at the place of 
 residence of the buyer, but subject to the 
 approval of the principal in another state 
 from which the goods are to be shipped in 
 case of the approval of the contract : Engs v. 
 Priest, 65-233. 
 
958 
 
 JUDGMENTS, I, a. 
 
 Rendition. — Nature. 
 
 JUDGMENTS. 
 
 I. Rendition. 
 
 a. Nature; form; in accordance with 
 
 pleadings; after defendant's 
 death. 
 
 b. Upon what based; pleadings; spe- 
 
 cial verdict; summary; order; 
 agreement. 
 As to including interest, see 
 Pleadin«s, §§ 440-442. 
 
 c. Confession of judgment. 
 
 d. Entry of judgment ; record; index. 
 
 As to judgment by default, see 
 Default. 
 
 As to judgment for costs, see 
 Costs. 
 
 As to what is sufficient appear- 
 ance to support a judgment, see 
 Appearance. 
 
 As to sufficiency of notice and 
 service to support a judgment, see 
 Original Notice. 
 II. Validity and effect. 
 
 a. Setting aside or vacating. 
 
 b. How far conclusive; collateral at- 
 
 tack. 
 Presumptions in favor of, see 
 Jurisdiction, IV. 
 
 c. Conclusive as to claims or defenses 
 
 which might have beeen pleaded. 
 
 d. Former adjudication; estoppel. 
 
 e. Merger. 
 
 As to effect of want of jurisdic- 
 tion, or of in-egulari ties,' see Juris- 
 diction, V. 
 
 As to judgments in personam 
 and in rem, see Jurisdiction, VI. 
 
 As to equitable relief against 
 judgments, see Equity, II, c. 
 
 As to enjoining enforcement 
 of judgments, see Injunction, 
 §§ 54-67. 
 
 III. Assignment; subrogation. 
 
 IV. Set-off and discharge. 
 
 V. Action upon judgment ; revivor ; scire 
 
 facias. 
 VI. Lien. 
 
 a. Commencement and continuance. 
 
 b. Upon what property. 
 
 c. Effect of lien; priorities. 
 
 Attorney's lien upon, see Attorneys, 
 III, d. 
 
 How enforced against Estates op Dk- 
 cedents, see that title, g§ 141-145. 
 
 Exceptions to, when necessary, how taken, 
 see Exceptions, §§ 58-68. 
 
 How seized under attachment, see Attach- 
 ment, § 115. 
 
 In attachment proceedings, see Attach- 
 ment, VIII. 
 
 On attachment bond, see Attachment, 
 IX, g. 
 
 On awai-d of arbitrators, see Arbitration, 
 §§ 53-55. 
 
 As to evidence of judgments, see Evi- 
 dence, §§ 537-554. 
 
 I. Rendition. 
 
 a. Nature; form; in accordcmce with 
 pleadings. 
 
 1. Not a contract: A judgment is not in 
 fact a contract in itself, although it may be 
 regarded as the result of a contract : Sprott 
 V. Reid, 3 G. Gr., 489. 
 
 2. Therefore, held, that a judgment is not 
 within the terms of a constitutional provis- 
 ion prohibiting legislation impairing the obli- 
 gation of contracts in such sense that the 
 statute requiring appraisement on an execu- 
 tion sale cannot be made applicable to judg- 
 ments for costs already in existence : Ibid. 
 
 3. A judgment is not a contract, in a nar- 
 row sense, and is not synonymous with agret- 
 ment, but, in a broad sense, it is a contract 
 as distinguished from a tort: Johnson v. 
 Butler, 3-5a5. 
 
 4. Debt: A judgment is a debt; so held 
 with regard to a judgment for costs in a 
 criminal prosecution: Gray v. Ferreby, 86- 
 146. 
 
 5. Not a proceeding: A judgment is 
 neither an '• action" nor a " special proceed- 
 ing commenced." It is the determination of 
 an action or a special proceeding: Gray v. 
 Iliff, 30-195. 
 
 6. Wliat constitutes: A final judgment Ib 
 not a resolve or decree of the court, but the 
 sentence of the law pronounced in the court 
 upon the action or question before it: Zeigler 
 V. Vance, 8-5S8. 
 
 7. The filing and allowance of a claim 
 against an estate in a probate court which 
 has no authority to issue execution upon 
 
JUDGMENTS, I, a. 
 
 959 
 
 Nature ; form ; in accordance with pleadings. 
 
 such allowance is not a judgment : Smith v. 
 Shawhan, 37-533. 
 
 8. A judgment or decree of the court con- 
 trols the written opinion, and if they are at 
 variance, the former prevails and determines 
 the rights of the parties : Ooodenoio v. Litch- 
 field, 59-336. 
 
 9. Final judgment is the application of the 
 law by the court to the particular case before 
 it, and specifically denying or granting the 
 remedy sought by the action : Taylor v. Run- 
 yan, 3-474. 
 
 10. Form: While no particular form of 
 words is necessary, there must be something 
 to show that the judgment stated or indi- 
 cated by the court has been entered by the 
 clerk ; and held, that in the absence of some 
 showing of the existence in a foreign juris- 
 diction of some particular statute, rule, or 
 usage, a record of a judgment in such juris- 
 diction, not showing by whom the judgment 
 was rendered or against whom or for what 
 amount, was not sufficient : Ibid. 
 
 11. A mere memorandum of the minutes 
 of the judge from which the record of the 
 case is afterwards to be drawn up does not 
 constitute a judgment : Ibid. 
 
 12. A record not corresponding in form to 
 what would be necessary for a judgment in 
 this state may be shown by the laws, prac- 
 tices and usages of the state in which the 
 suit is brought, to be sufficient to constitute 
 a judgment there : Ibid. 
 
 Further as to what is a sufficient entry 
 to constitute a judgment, see COURTS, II, c. 
 
 13. An order for the recovery of money 
 against one of two defendants, without nam- 
 ing which, is sufficient if it is manifest from 
 the whole record which one is referred to: 
 JPinnagan v. Manchester, 12-521. 
 
 14. A judgment rendered against "Daniel 
 Dougherty, Treasurer," held to be a personal 
 judgment, and that in order to make it a 
 judgment against him in his official capacity 
 only, it should have been rendered against 
 him " as treasurer :" Dougherty v. McManus, 
 
 15. It is not necessary to set out in a 
 decree the facts upon which it is founded : 
 Oampbell v. Ayres, 6-339. 
 
 16. Where the petition in an action upon a 
 foreign judgment alleged that it was duly 
 rendered by the court and set forth the en- 
 
 try thereof, which recited the name of the 
 court, the title of the case, service, entry of 
 judgment, etc., and was signed by the clerk, 
 held, that a demurrer to the petition on the 
 ground that the judgment record showe<l 
 that judgment was rendered by the clerk 
 instead of the court was properly overruled : 
 Thompson v. Cook, 21-472. 
 
 As to form of judgments in justices' courts, 
 see Justices of the Peace, g§ 135-139. 
 
 17. On contract payable in property: A 
 judgment upon a promissory note payable in 
 county orders should be for such property 
 and not for money unless the notes have be- 
 come money demands: Ransom v. Stan- 
 berry, 22-334. 
 
 18. Alternative: The finding of the court 
 that defendant is indebted in one or the 
 other of two different amounts, leaving the 
 question as to which of the two is proper to 
 be determined in the futm-e, is not a judg- 
 ment. A judgment cannot be alternative, 
 conditional or oontingent : Baftell v. Lowery, 
 46-49. 
 
 19. A judgment awarding an execution 
 against a party for costs if not paid within a 
 time limited is not a condition, but a final 
 and absolute judgment : Sprott v. Reid, 3 G. 
 Gr., 489. 
 
 20. In a b a t e m e n t : By statute (Code, 
 § 2851), where a matter in abatement is 
 pleaded in connection with other matter, the 
 judgment must, if it is rendered on a matter 
 in abatement and not upon the merits, so de- 
 clare : Clise v. Freebome, 37-280. 
 
 21. The judgment in a particular cafie 
 finding for defendant and reciting an offer 
 to plaintiff of a nonsuit and the acceptance 
 thereof by plaintiff, held sufficient to indi- 
 cate that the judgment was upon matter in 
 abatement pleaded in the action and not on 
 the merits : Atlcins v. Anderson, 63-739. 
 
 22. Must conform to pleadings: ReUef 
 not called for by the pleadings will not be 
 granted by the decree : Byam v. Cook, 21-392. 
 
 23. A judgment different from that prayed 
 for in the petition should not be entered: 
 Lafever v. Stone, 55-49 ; Harder v. Wright, 
 70 . 
 
 24. The court should not grant to the 
 plaintiff relief in any respect greater than 
 that claimed in the petition: Vice v. Derby, 
 59-313. 
 
960 
 
 JUDGMENTS, I, a. 
 
 Nature ; form ; in accordance with pleadings. 
 
 25. Judgment should not be rendered on a 
 verdict upon an immaterial issue : Hughes v. 
 McCutchen, Mor., 154. 
 
 26. When an answer is filed, the plaintiff 
 is not limited to the relief asked by his pe- 
 tition: Wilson V. Miller, 16-111. 
 
 27. If the court has jurisdiction of the sub- 
 ject-matter and of the defendant, a judgment 
 in excess of that asked is not void, but void- 
 able only: O'Connell v. Cotter, 44-48. 
 
 28. Where the petition prayed for foreclos- 
 ure of an equity of redemption, held, that 
 personal judgment could not be rendered 
 upon default : McGlaughlin v. O'Sourke, 13- 
 459. 
 
 29. Where the petition asked only for 
 judgment for the amount due at the com- 
 mencement of the action, held, that it was 
 error to give judgment for instalments of 
 the indebtedness falling due after the suit 
 was commenced and before decree : Blake v. 
 Blake, 13-40. 
 
 30. Ill actions against several deCendants 
 jointly and severally liable, judgment may 
 be taken as to one and the case continued as 
 to others, and such judgment wiU not bar a 
 right to recover against those as to whom the 
 case is continued, when the cause is ripe for 
 disposition as to them : Sviith v. Coopers, 9- 
 876. 
 
 31. In an action of replevin against joint 
 defendants judgment may be rendered 
 against one, although plaintiff is not entitled 
 to judgment against the other : Carothers v. 
 Van Ha^an, 2 G. Gr., 481. 
 
 32. If plaintiff maintains his cause of ac- 
 tion against one of several defendants, be 
 may have judgment against that one and 
 the other defendants may have judgments 
 against plaintiff for their costs : Eyre v. Cook, 
 9-185. 
 
 33. Judgment against one of several de- 
 fendants jointly and severally liable may be 
 rendered without the cause being disposed 
 of as to the others: Poole v. Hintrager, 60- 
 180. 
 
 34. Where one of two joint defendants 
 pleads matter going to the cause of action or 
 which constitutes a defense for both in its 
 nature, and succeeds, the other defendant, 
 though in default, should have the benefit of 
 such defense: Morrison v. Sioner, 7-493; 
 Campbell v. McHarg, 9-354. 
 
 35. The practice is, where there are two 
 defendants to an action on contract, one of 
 whom makes defense, whilst the other suffers 
 judgment to be given against him by default, 
 not to enter final judgment against the party 
 in default until the issues joined by the other 
 defendant are disposed of : Pier son v. David, 
 4-410 ; Loeber v. Ddahaye, 7-478 ; Greenoiigh 
 V. Shelden, 9-503. 
 
 36. Where judgment is entered against 
 two defendants, motion for new trial may 
 be granted as to one without vacating 
 the judgment as against the other: Gor- 
 don V. Pitt, 3-385; Terpenning v. Gallup, 
 8-74. 
 
 37. Where defendant has recovered on a 
 cause of action against joint defendants on 
 which they are severally liable, tlie fact 
 that, as between them, one rather than 
 the other is under obligation to satisfy the 
 judgment, will not affect plaintiff's right 
 as to its enforcement : Palmer v. Stacy, 44- 
 340. 
 
 38. So held in an action for injuries re- 
 ceived by reason of the obstruction of a street 
 brought against the city and the party guilty 
 of the obstruction jointly : Ibid. 
 
 39. Where separate judgments are ren- 
 dered against two or more defendants jointly 
 sued for the same tort, plaintiff may elect 
 what judgment he will enfoi-ce, and when it 
 is satisfied the other will be regarded as dis- 
 charged: Putney V. O'Brien, 53-117. 
 
 40. In an action for damages for a tort 
 against two or more defendants sued jointly, 
 judgment may be rendered against the de- 
 fendant found liable: Boswell v. Gates, 56- 
 143. 
 
 4li A judgment cannot be rendered in 
 favor of one defendant against a co-defend- 
 ant, unless such judgment is asked for and 
 there is an adjudication of the claims be- 
 tween them : Beall v. West, 13-61. 
 
 42. Against deceased defendant: Where 
 defendant dies after the submission of the 
 cause and before the rendition of judgment, 
 the judgment should be entered as of the 
 date of submission or at least of a date 
 prior to the death. It is irregular to enter it 
 as of a date subsequent to the death: Flock v. 
 Wyatt, 49-466. 
 
 As to judgment after the death of plaint- 
 iff, see infra, §§ 300, 201. 
 
JUDGMENTS, I, b. 
 
 961 
 
 Upon what based. 
 
 b. Upon what iased ; pleadings ; special 
 verdict,' summary order j agree- 
 ment. 
 
 43. Upon the pleadings : Under the statute 
 (Code, § 2859) providing that judgment may- 
 be rendered in favor of a party appearing by 
 the pleadings to be entitled thereto, though 
 a verdict has been found against him, held, 
 that where there was no answer judgment 
 Bhould have been rendered for plaintiff not- 
 withstanding evidence on the part of de- 
 fendant disproving the claim had been 
 erroneously received: Singer Mfg. Co. v. 
 Billings, 39-347. 
 
 44. Also held, that where defendant pleads 
 a tender, judgment in plaintiff's favor for the 
 amount of the tender should be rendered, 
 although the verdict of the jury is for de- 
 fendant: Sheriff V. null, 37-174. 
 
 Further as to Tender, see that title. 
 
 45. Where, upon motion for judgment for 
 an amount admitted on the pleadings to be 
 due, the opposite party asked to amend and 
 leave was granted, held that the court prop- 
 erly refused to enter judgment on the plead- 
 ings until the amendment was filed : Snyder 
 V. Phillips, 66-484. 
 
 46. By statutory provision (Code, § 3856), 
 if only part of the claim is controverted by 
 the pleading, judgment may be rendered for 
 the part not controverted : Davenport v. Chi- 
 cago, E. I. & P. S. Co., 38-633, 638. 
 
 47. Where plaintiff sued' on two notes, and 
 in a third count in his. petition claimed the 
 attorney's fee provided for therein, held, that 
 a denial of the right to the attorney's fee did 
 not put in issue the counts for amounts due 
 upon the notes respectively, and judgment 
 ■was properly rendered thereon for want of 
 denial; Musserv. Crum, 48-53. 
 
 48. In an action to recover real property 
 the party showing himself entitled to an 
 undivided interest may recover such interest 
 but not full title and may have the right of 
 possession as against a stranger : Hughes v. 
 Bolliday, SGr. Gr., 30. 
 
 49. Notwithstanding tlie verdict: Under 
 the former system of pleading and practice, 
 a motion for judgment notwithstanding the 
 verdict was only entertained by the court 
 under a certain state of the pleadings and 
 
 of the jury, and was never enter- 
 VOL. I— 61 
 
 tained on behalf of the defendant. It is 
 only for plaintiff that such a judgment can 
 be rendered : Bradshaw v. Hedge, 10-403. 
 . 50. Upon special verdict: Under the 
 statutory provision (Code, § 2858) that when 
 the verdict is special or when there has been 
 a special finding of facts by the jury, or 
 when the court has ordered the case to be 
 reserved, it shall order what judgment shall 
 be entered, to justify a court in rendering a 
 judgment upon the special finding of facts 
 against a general verdict, such finding must 
 be manifestly inconsistent with the general 
 verdict: Bonham v. Iowa Central Ins. Co., 
 35-828; Clark v. Warner, 33-219; Mershon 
 V. National Ins. Co., 34^87. 
 
 51. To warrant such judgment, the special 
 verdict must be such that, when taken to- 
 gether with the facts admitted in the plead- 
 ings, it establishes the right of the party to 
 recover: Lamb v. First Presb. Society, 20- 
 137; Hardin V. Branner, 35-364. 
 
 52. It is only where the general and spe- 
 cial verdict are so inconsistent that both can- 
 not stand that the latter will be allowed to 
 defeat the former. The mere fact that the 
 special verdict does not support the general 
 will not render judgment on the general 
 verdict erroneous : Phoenix v. Lamb, 39-353. 
 
 53. The court cannot properly render judg- 
 ment for a party upon a special verdict, un- 
 less, taken in connection with the pleadings, 
 it is such as to show conclusively that the 
 party is entitled to judgment: Crouch v. 
 Deremore, 59-43. 
 
 54. Where the general verdict is contrary 
 to instructions it should be set aside, but it 
 does not necessarily follow that judgment 
 should be rendered upon a special verdict in 
 accordance with the court's instructions ; for, 
 while the instructions were binding upon the 
 jury, they are not binding upon the court, 
 and it is under no obligation to follow them : 
 Evans v. St. Paul Harvester Works, G3-204. 
 
 55. When a court is called to rule upon a 
 motion for judgment upon a special verdict, 
 it is to consider what the law is, and is not 
 bound by its instruction previously given to 
 the jury : Baird v. Chicago, E. I. & P. R. 
 Co., 61-3.59. 
 
 56. Under peculiar facts, held, that a spe- 
 cial verdict was not sufficient to entitle plaint- 
 iff to judgment in a case where a general 
 
962 
 
 JUDGMENTS, I, b, c. 
 
 Upon what based. — Confession of. 
 
 verdict for defendant was set aside on ac- 
 count of error in the instructions : Pettus v. 
 Farrell, 59-296. 
 
 57. Where the special finding of the jury 
 is in direct conflict with the general verdict, 
 the judgment must be entered on the find- 
 ing: O' Donnell V. Hastings, 68-271. 
 
 58. Where, after judgment upon a general 
 verdict, the court on motion, without having 
 first set aside such judgment, rendered a judg- 
 ment for the opposite party upon a special 
 verdict, held, that such final judgment was 
 valid : Mornyer v. Cooper, 35-257. 
 
 59. The fact that it appears by the special 
 verdict of the jury that they excluded from 
 their consideration a material fact appearing 
 in the evidence may be a ground for a new 
 trial: Baldwin v. St. Louis, K. & N. B. Co., 
 63-310. 
 
 That the special verdict controls the gen- 
 eral^ see also Practice, S§ 153-166. 
 
 GO. Summary judgments on motion: 
 Under the statutory provision (Code, § 3906) 
 authorizing judgments on motion by sure- 
 ties against principals, or sureties against co- 
 sureties, by clients against attorneys, by 
 plaintiff in execution against sureties for 
 money collected, etc., the court may order 
 an attorney to pay the client money collected 
 for him in the course of professional employ- 
 ment ; and disobedience to such oi-der may 
 be punished by suspension or revocation of 
 the license of the attorney : Cross v. Aokley, 
 40-493. 
 
 Gl. Under the same statutory provision, 
 the court may make an order against a clerk 
 to compel payment of money received by 
 him on a judgment: Elliott v. Jones, 47-134. 
 
 G2. By consent or agreement: An agree- 
 ment for judgment, when properly filed, be- 
 comes a part of the record in the case, and 
 a subsequent pleading inconsistent thei-ewith 
 sliould be stricken from the files: Vail v. 
 Stone, 13-284. 
 
 63. The fact that counsel for a party is in 
 court when judgment is rendered against his 
 client and makes no objection thereto does 
 not show that the judgment thus rendered 
 is by agreement or consent: Hershee v. 
 Hershey, 15-185. 
 
 64-. Where an action for recovery of real 
 estate was tried under an agreed statement 
 of facts which recited that the plaintiffs were 
 
 entitled to the realty, excepting improve- 
 ments thereon, unless prevented by the facts 
 stated, held, that a judgment determining 
 rights to the improvements as well as to the 
 land was erroneous : Bums v. Keas, 21-357. 
 
 65. When parties by agreement determine 
 the amount which is to be paid by way of 
 compromise of the suit, their determination 
 stands in place of a judgment of the court, 
 and upon payment of the sum agreed upon 
 defendant has the right to demand that the 
 plaintiff shall do what in his petition he has 
 expressed a willingness to do, although de- 
 fendant has not asked such specific rehef: 
 Robertson v. Central R. Co., 57-376. 
 
 66. Where a petition embraced two claims, 
 and an offer to compromise by permitting 
 judgment was accepted, held, that both 
 claims were thereby satisfied and adjusted : 
 Ibid. 
 
 G7. Where an ofiicer holds liquox-s under a 
 warrant in a proceeding for their condemnar 
 tion, he has no authority to stipulate for 
 judgment against him in a proceeding by a 
 third party for their recovery: Fries v. 
 Porch, 49-351. 
 
 Judgment by agreement of attorney, see 
 Attorneys, g§ 4, 14. 
 
 c. Confession of judgment. 
 
 68. Statement: Under the statutory pro- 
 vision as to confession of judgment (Code, 
 § 2896), it is not sufficient to state that the 
 sum for which judgment is confessed is due 
 upon a note, but the statement should show 
 the manner in which the indebtedness arose 
 for which the note was given, and it must 
 state that the amount is justly due : Edgar 
 V. Oreer, 7-136. 
 
 69. Where the statement was that the 
 amount was due on a promissory note given 
 for a balance due on settlement, and it was 
 not alleged that the amount was justly due, 
 held, that a judgment on such statement was 
 illegal and should not affect third parties, 
 and that an existing creditor, subsequently 
 obtaining judgment, might have the judg- 
 ment by confession set aside on motion : Ber- 
 nard V. Douglas, 10-370. 
 
 70. As between the parties judgments by 
 confession are valid, although the statement 
 does not substantially comply with the stat- 
 
JUDGMENTS, I, c. 
 
 963 
 
 Confession of. 
 
 ute in showing how the indebtedness arose. 
 (Ci'iticising Edgar v. Greer, 7-136, and Ken- 
 nedy V. Lowe, 9-580, which held that the de- 
 fendant himself might take advantage of 
 such defect): Plummer v. Douglas, 14r-60. 
 And see Churchill v. Lyon, 13-431. 
 
 71. A statement that the amount due was 
 for money borrowed from plaintiff and inter- 
 est, etc., evidenced by a promissory note, 
 etc., held sufficient: Vanfleet v. Phillips, 
 11-558. 
 
 7a. And so held where the statement was 
 for " money borrowed : " Marvin v. Tarbell, 
 12-93; Kendigv. Marble, 58-539. 
 
 73. As to sufficiency of statements in par- 
 ticular cases, see Daniels v. Claflin, 15-153; 
 Mffler V. Clarke, 37-335. 
 
 74. In a particular case, held, that the 
 statements of the confession of judgment did 
 not render a party thereto liable to judgment 
 thereon as principal, but only as surety: 
 Jarosh v. Easton, 57-569. 
 
 75. The mere fact that the statement for 
 the confession of judgment is sworn to be- 
 fore a notary public who at the time is one 
 of the attorneys of the plaintiff does not nec- 
 essarily render it void. But such circum- 
 stance might be considered if it-were claimed 
 that fraud was practiced in _ procuring the 
 confession: Vanfleet v. Phillips, 11-558. 
 
 76. Failure of the notary to affix his seal 
 to the jurat of the affidavit to the statement 
 will render judgment thereon erroneous: 
 Ohase v. Street, 10-593. 
 
 77. Where the jurat to the statement for 
 confession of judgment was defective in that 
 the notary public omitted to sign his sur- 
 name, but the seal attached gave his name in 
 fnU, hdd, that the authentication was suffi- 
 cient and the confession valid: Orattan v. 
 Matteson, 54-389. 
 
 78. As between the parties, the statement 
 ■will be sufficient without being sworn to. 
 A defect in that respect may be amended on 
 leave of court: Thorp v. Piatt, 34^314. 
 
 79. As between the parties, if defendant 
 swears that a certain sum is due and con- 
 sents to the rendition of judgment for that 
 amount, there is no necessity for a sworn 
 statement: Plummer v. Douglas, 14-69. 
 
 80. If the honesty and rutegrity of the 
 transaction is affirmatively shown, the judg- 
 ment will not be invalid as to creditors or 
 
 parties, though based upon a defective state- 
 ment: Vannicev. Greene. 16-574. 
 
 81. Warrant of attoriiey to confess judg- 
 ment: In case of judgment on a cogriiouif no 
 formal action or declaration is necessary. 
 These are waived by the power conferred 
 upon the attorney to confess judgmentc 
 Ober V. Shepherd, 1 G. Gr., 430. 
 
 82. Where a judgment rendered upon a 
 power of attorney is reversed for error, the 
 attorney may under the same power confess 
 a correct judgment, his power not being ex- 
 hausted under the first act : Huner v. Doo- 
 little, 3 G. Gr., 76. 
 
 83. Judgment rendered in pursuance of 
 the power of attorney executed in connection 
 with an instrument evidencing the indebted- 
 ness, held binding even though in pursuance 
 of such power the judgment was entered 
 prior to the maturity of the debt, the execu- 
 tion on such judgment being delayed until 
 the debt should become due: McClish v. 
 Manning, 3 G. Gr., 223. 
 
 84. Under present statutory provisions, a 
 confession of judgment can only be made as 
 provided by statute, and a warrant of attor- 
 ney to confess judgment which would be 
 valid in another state where it is executed 
 will not be sufficient in this state to authorize 
 the entry of judgment thereunder : Hamilton 
 V. Schoenberger, 47-385. 
 
 85. Power of partner to confess judsj- 
 ment: One partner has no authority to con- 
 fess judgment against the firm, and such a 
 judgment would be void as to the other part- 
 ners : Christy v. Sherman, 10-535. 
 
 8l>. But it would be binding as to the part- 
 ner confessing judgment: North v. Mudge, 
 13-496. 
 
 87. Where the statement was signed in the 
 firm name, and sworn to by one member, 
 and the judgment entry recited that the firm 
 acknowledged themselves justly indebted, 
 etc., held, that the judgment would bind the 
 firm : Edwards v. Pitzer, 13-607. 
 
 88. Not without creditor's consent: The 
 statute does not authorize the confession of a 
 judgment by the debtor, without the knowl- 
 edge or consent of the creditor. Such a judg- 
 ment may be canceled on motion of the cred- 
 itor: Farmers', etc.. Bank v. Mather, 30-283. 
 
 85). Appearance by attorney is net nec- 
 essary in order to support a confession 
 
964 
 
 JUDGMENTS, I, c. 
 
 Confession of. 
 
 of judgment: Edmonds v. Montgomery, 1- 
 143. 
 
 90. Entry by clerk: All the power the 
 clerk has to render judgment on confession 
 is given by the statute, and unless its provis- 
 ions are strictly complied with, the power 
 of attorney under which the clerk acts is a 
 nullity: Edgar v. Greer, 7-1S6 ; S. C, 10-279. 
 
 91. The statute authorizing confessions of 
 judgment does not give judicial powers to 
 the clerk of the court. The judgment en- 
 tered is to be treated as one entered by the 
 court itself: Qrattan v. Matteson, 54-229. 
 
 92. Ill vacation : Judgment may be entered 
 by the clerk in vacation and approved at the 
 next term: Van fleet v. Phillips, 11-558; Ken- 
 dig V. Marble, 58-529. 
 
 93. Lien of: Where a confession of judg- 
 ment stipulated that execution thereon should 
 not be issued for two years, and that the 
 judgment should be a lien upon the property 
 described therein until fully paid, held, that 
 such confession of judgment constituted in 
 effect a mortgage upon the property described 
 which would have priority over the hen of a 
 subsequent judgment creditor, even after the 
 expiration of ten years from the time of 
 i-endering judgment on the confession: Sig- 
 worth V. Meriam, 66-477. 
 
 94. Alteration of record: Evidence in a 
 particular case, held insufficient to establish 
 the alteration of the record of a judgment by 
 confession : Wright v. Howell, 35-288. 
 
 95. Appeal: The judgment when entered 
 is a judgment by the court, and is subject to 
 revision on appeal in the same manner as any 
 other judgment: Edgar v. Greer, 7-136; 
 Troxel v. Clarke, 9-201; Burge v. Bums, 
 Mor., 287. 
 
 96. Execution : Process may issue for the 
 enforcement of a judgment by confession be- 
 fore the approval of the record of such judg- 
 ment: Vanfleet v. Phillips, 11-558; Wright 
 V. Howell, 35-288. 
 
 97. Effect of: In the absence of fraud or 
 other ground of equitable relief, the judg- 
 ment is conclusive as to any defense, such as 
 usury, which might have been interposed be- 
 fore judgment: Twogood v. Pence, 22-543; 
 Troxel V. Clarke, 9-201; Miller v. Clarke, 37- 
 325. 
 
 98. But a- judgment by confession, entered 
 into with the purpose of evading the usury 
 
 laws, is void, as between the parties, as to the 
 amount in excess of the sum lawfully due : 
 Mullen V. Russell, 46-386; Ohm v. Dickerman, 
 50-671. 
 
 99. The mere fact that the note upon 
 which judgment by confession is rendered is 
 usurious does not in itself show that the 
 parties caused judgment to be entered for 
 the purpose of concealing usury or to avoid 
 the statute against it: Kendig v. Marble, 
 58-529. 
 
 100. Where a surety's signature to a 
 note was obtained by false representations 
 amounting to fraud on the part of the payee, 
 held, that a confession of judgment thereon, 
 made before the fraud was known to the 
 surety, would not estop him from setting up 
 that fact in an action to set aside the judg- 
 ment : Melick v. First Nat. Bank, 52-94. 
 
 101. Where, in an action of foreclosure, 
 mortgagee set up a written agreement by 
 mortgagor to confess judgment, and an issue 
 was made upon the allegation that such 
 agreement was obtained by fraud, which 
 issue was found for plaintiflf, held, that such 
 determination only settled the validity of the 
 agreement, and that defendant could still file 
 another answer, setting up usury: Lyon v. 
 Welsh, 20-578. 
 
 Further as to whether a confession of 
 judgment is conclusive against usury, see 
 Interest, g§ 82-86. 
 
 102. Confession of judgment by a princi- 
 pal will not bar action thereon against a 
 surety : Citizens' Savings Bank v. Olsen, 47- 
 493. 
 
 103. Offer to confess judgment: Under 
 the statutory provision (Code, § 2899) an offer 
 to confess judgment may be made orally, 
 and there is nothing requiring it to be a mat- 
 ter of record. It is therefore competent, when 
 the amount of the offer is questioned, to 
 prove it by parol: Barlow v. Buckinghamr 
 68-169. 
 
 104. An offer to confess judgment for a 
 certain amount carries with it liabiUty for 
 costs, and it is not necessary that the offer to 
 confess expressly include costs : Manning v. 
 Irish, 47-650. 
 
 105. Where in an action for balance on 
 mutual accounts an offer to confess was 
 made for a certain amount, held, that it was 
 an offer to confess a balance of that amount 
 
JUDGMENTS, I, c, d. 
 
 965 
 
 Confession of. — Entry ; record ; index. 
 
 due and not merely to confess items of in- 
 debtedness on defendant's part to ijlaintiff 
 amounting to the sum specified : Ibid. 
 
 106. The offer to confess must be confined 
 to claims embraced in the suit : Phillips v. 
 Shearer, 56-261. 
 
 107. An offer to confess, unless accepted, 
 does not entitle plaintiff to judgment for the 
 amount offered : Holmes v. Hamburg, 47-348. 
 
 108. If tlie offer to confess is insufficient, 
 it is to have no effect on the question of 
 costs: McClatchey v. Finley, 62-300. 
 
 109. The provisions as to offer to confess 
 judgment are applicable in cases of appeal 
 from the award made by commissioners in 
 assessing the damages for, taking right of 
 way; Harrison v. Iowa Midland JR. Co., 36- 
 333. 
 
 110. Where an offer to confess was made 
 in a justice's court, and plaintiff recovered 
 judgment for a larger amount than the 
 amount of the offer, but on appeal judgment 
 was given for an amount not greater than 
 the offer, held, that plaintiff should pay the 
 costs; that the provisions of this section 
 have reference to the amount finally recov- 
 ered: Watts V. Lambertson, 39-272. 
 
 111. The provision as to offering to con- 
 fess judgment does not contemplate ad- 
 missions or confessions contained in the 
 pleadings : Davenport v. Chicago, B. I. & P. 
 R. Co., 38-638. 
 
 112. Offer to compromise: Under the 
 Btatutory provision (Code, § 2900) vrith refer- 
 ence to an offer by defendant, after service 
 of notice and before trial, to allow judgment 
 to be taken against him, it is error to allow 
 the statement of an offer to compromise to 
 be made to the jury: MoCormick v. Chicago, 
 S.I.&P. R. Co., 47-345. 
 
 113. The only effect of the offer is as to 
 costs: Ibid. 
 
 114. Where an offer to allow judgment to 
 be taken is not accepted, an attempt on the 
 part of the counsel for the party to whom it 
 is made to introduce«it in evidence consti- 
 tutes misconduct, but no steps being taken 
 at the time to have the jiiry discharged and 
 a new one impaneled on account of such 
 misconduct, held, that the act of the party 
 objecting in proceeding with the trial of the 
 cause was a waiver of his objection : Biech 
 V. Belch, 68-536. 
 
 115. An offer to pay a sum of money and 
 costs if plaintiff will dismiss his action is 
 not within the provisions of this section: 
 Quinton v. Van Tuyl, 30-554. 
 
 d. Entry of judgment; record; index. 
 
 In general, as to records, etc., see Courts, 
 §§ 191-263. 
 As to lien, see infra, VI. 
 
 116. Kecord necessary: There can be no 
 judgment until it is entered in the proper 
 records of the court. It cannot exist in the 
 memory of the officers of the court or in 
 memoranda entered in books not intended to 
 preserve the records of judgments: Balm v. 
 Nunn, 63-641. 
 
 117. A judgment cannot be proven by a 
 memorandum on the judge's calendar : Miller 
 V. Wolf, 63-233. 
 
 118. So where the entry of the judgment 
 was blank as to the amount of damages and 
 specified only the amount of costs, held, that 
 it was valid only as to the costs, although the 
 judge's calendar contained an entry directing 
 the clerk to assess the damages and the judg- 
 ment docket contained an entry of the judg- 
 ment for the amount of damages thus as- 
 sessed : Case v. Plato, 54-64. 
 
 119. A judgment is valid as to costs, al- 
 though the amount thereof is not filled into 
 the record : Lind v. Adams, 10-398. 
 
 120. Judgment docket: Where the judg- 
 ment docket is introduced in evidence, with- 
 out objection, to prove a judgment, it should 
 be received without proof of the loss or de- 
 struction of the original : Moore v. McKinley, 
 60-367. 
 
 121. Where it appeared that there was a 
 mistake in the entry in the judgment docket, 
 it not appearing whether or not there was 
 siich mistake in the record, held, that it 
 would be presumed, in order to support other 
 proceedings, that the judgment was cor- 
 rectly entered in the record: Preston v. 
 Wright, 60-351. 
 
 122. Indexing: If a party is not charged 
 with constructive notice by what appears in 
 the index book, he is not bound to look 
 further and is not bound by what appeal's of 
 record : Tliomas v. Desney, 57-58. 
 
 123. Indexing a judgment as against Ellen 
 D., held not sufficient to constitute notice of 
 a judgment against Helen D. : Ibid. 
 
966 
 
 JUDGMENTS, I, d. 
 
 Entry; record; index. 
 
 124. Even though the judgment is not 
 properly indexed as required, yet a sheriff's 
 deed thereunder, duly recorded, imparts no- 
 tice of all prior proceedings : Cushing v. Ed- 
 wards, 68-145. 
 
 125. The entry and indexing of a judg- 
 ment as A. B. V. C. D. et al. does not operate 
 as notice to strangers of the judgment as 
 against co-defendants of C. D. whose names 
 do not appear: Cummings v. Long, 16-41. 
 
 126. A judgment not indexed is not notice 
 to the purchaser at foreclosure sale of prem- 
 ises upon which such judgment would be a 
 lien, and the holder of such judgment cannot, 
 therefore, maintain an equitable action to 
 redeem from such sale : Sterling Mfg. Co. v. 
 Early, 69-94. 
 
 127. Impe.ichment of record : The record 
 of the judgment must be taken as absolute 
 verity. On appeal, the supreme court will 
 not consider affidavits presented to the court 
 below for the purpose of impeaching it : Mor- 
 nyer v. Cooper, 35-257. 
 
 128. A writ of execution upon a judgment 
 is as to third persons only secondary evidence 
 of the amount due upon such judgment, the 
 judgment itself being the first and best evi- 
 dence: Parsons v. Hedges, 15-119. 
 
 129. Where the record is blank as to the 
 name of the party against whom judgment 
 is rendered, such judgment will be reversed 
 on appeal: Rigglesworfh v. Reed, Mor., 19. 
 
 130. Assessment of damages: In an action 
 upon a note which was submitted to the 
 court, held, that the court having found 
 plaintiff entitled to recover, might order the 
 clerk to assess the amount of damages : Rife 
 V. Inghram, 3 G. Gr., 125. 
 
 131. Where there was no controversy as to 
 the amount of plaintiff's claim, but one as to 
 whether defendant had a defense thereto, 
 and the referee in his report found for 
 plaintiff, but left the amount of recovery 
 Wank, and thereupon the court rendered 
 judgment for the proper amount, held, that 
 there was no error: Di'ath v. Deitz, 15-436. 
 
 132. Interest: Where judgment is entered 
 nunc pro tunc at a subsequent tei-m to that 
 at which the verdict is rendered, the entry 
 should be for the amount of the verdict to 
 bear interest from the time the judgment 
 ought to have been rendered, and not for the 
 aggregate amount of the verdict and interest 
 
 up to the actual entry of the judgment: 
 Shephard v. Brenton, 30-41. 
 
 133. In rendering judgment upon the ver- 
 dict, interest on the amount of the verdict 
 from the time of its rendition to the time of 
 the actual entry of judgment may be in- 
 cluded: Carson v. German Ins. Co., 62- 
 433. 
 
 134. Where judgment is rendered upon a 
 principal sum drawing interest at a certain 
 rate, and instalments of interest due which 
 draw interest at a different rate, that portion 
 of the judgment which is for interest should 
 draw interest at the same rate which the in- 
 terest was drawmg before judgment: Bur- 
 rows V. Stryker, 47-477. 
 
 135. Findings of the court as to interest to 
 be allowed in a particular case where the 
 judgment was modified and reduced on ap- 
 peal, held correct : Munson v. Plummer, 58- 
 736. 
 
 Costs: As to judgment for Costs, see that 
 title, §§ 53-56, and Coukts, g§ 204, 205. 
 
 136. Wh.it constitutes the record: All 
 the papers of the case constitute the record, 
 and the decree assumes them and their con- 
 tents : Campbell v. Ayres, 6-339. 
 
 137. Construction: It is always proper, 
 and in cases where the entry is obscure or 
 not clear it is necessary, to read the record 
 entry of the judgment in the light of the 
 pleadings and the entire record: Fowler v. 
 Doyle, 16-534 ; Maytield v. Bennett, 48-194. 
 
 138. W^here the entry recited that "serv- 
 ice of notice had been made upon " defend- 
 ant, and the record showed a service by 
 publication, held, that it would not be pre- 
 sumed that there was personal service : May- 
 field V. Bennett, 48-194. 
 
 139. Where the proof of a judgment is in- 
 volved, the entire pleadings and records of 
 the case are receivable in evidence: Smith v. 
 Smith, 32-516. 
 
 140. The pleadings in the case constitute a 
 part of the record, and the judgment may be 
 established and construed with the aid of the 
 light which they reflect upon it: Tyler v. 
 Langworthy, 37-555. 
 
 141. If from an examination of the whole 
 record such a construction may be fairly 
 placed upon a judgment as to relieve it from 
 error, the court should give it that construc- 
 tion: Ibid. 
 
JUDGMENTS, I, d. 
 
 967 
 
 Entry; record; index. 
 
 142. Correction of record: Where the 
 judgment, erroneous when entered, is cor- 
 rected in the proper manner before the rights 
 of third persons have been acquired against 
 it, such' correction will be valid as against 
 such subsequent rights : Monroe v. West, 12- 
 119. 
 
 As to correction of records In general, see 
 COTOTS, §g 323-347. 
 
 143. Entry; nunc pro tunc: Courts pos- 
 sess the inherent authority to enter judg- 
 ment nunc pro tunc, and lapse of time will 
 not bar its exercise. Such power is not 
 taken away, nor the time within which it 
 may be exercised affected, by the provisions 
 of the statute with regard to proceedings to 
 correct mistakes in the proceedings of the 
 elerk. Therefore, held, that where the judg- 
 ment had in fact been rendered by the court, 
 as shown by the minutes in the judge's cal- 
 endar, but had not been entered up by the 
 clerk, a motion three yeai-s and six months 
 afterwards for the entry of judgment nunc 
 pro tunc was proper : Fuller v. Stebbins, 49- 
 376. 
 
 144. A judgment nunc pro tunc, entered 
 while an appeal from the ruling upon a de- 
 murrer was pending in the supreme court, 
 and without the appellee having elected to 
 stand upon his demurrer, and entered with- 
 out notice to him, held unauthorized and 
 void : Turner v. First Nat. Bank, 30-191. 
 
 As to other entries nunc pro tunc, see 
 Courts, S^ 248, 349. 
 
 145. Lost records: Courts of record have 
 inherent power, independent of statute, to 
 restore judgments the records of which have 
 been lost or destroyed, as fully as other rec- 
 ords ; and such power is not taken away by 
 the statute permitting action to be brought 
 on such judgments: Gammon v. Knudson, 
 46-455. 
 
 146. In a proceeding to restore the record 
 of a judgment which had been destroyed, 
 held, that the prior existence of the record 
 and its destruction were the only matters in 
 issue and its original validity could not be in- 
 quired into : Kanke v. Herrum, 48-276. 
 
 As to restoring or supplying other lost rec- 
 ords, see COUKTS, §g 250-254. 
 
 147. Presumptions in favor of the rec- 
 ord: Where a decree recited that the cause 
 came on for hearing in the presence of coun- 
 
 sel for plaintiff and defendants, held, that it 
 was sufficiently shown that there was an ap- 
 pearance by all of the defendants: Oooper v. 
 Miller, 10-532. 
 
 148. Where it was recited in a decree that 
 it was made upon proof read in evidence to 
 the court, held, that it would be presumed 
 that evidence to support the plea was intro- 
 duced : Wahl V. Phillips, 15-478. 
 
 149. The presumption is strong in favor of 
 the verity and truth of judicial records and 
 they can only be impeached by evidence 
 clear and satisfactory. Evidence that the 
 draft of a decree was filed and entered in va- 
 cation is not sufficient without a showing 
 that the court never ordered the decree in 
 term time : Parker v. Slaughter, 23-125. 
 
 1 50. The presumptions of law are all ia 
 support of a judgment, and when itls sought 
 to avoid it because rendered on Sunday, the 
 evidence must clearly establish the fact in 
 order to overcome the presumption of regu- 
 larity: Bishop V. Carter, 29-165. 
 
 151. The cancellation of a portion of the 
 record of a judgment entry being shown, 
 held, that the presumption would be that 
 such cancellation was made at the time of 
 the approval of the judgment, and was au- 
 thorized, rather than that it was subsequently 
 made without authority: Lutz v. Kelly, 47- 
 307. 
 
 Further as to presumptions in support of 
 the record, see Courts, gg 359, 260. 
 
 152. Entry in vacation: Althougha judg- 
 ment be entered after the close of the term 
 and without special direction of the court, 
 yet if not contrary to the pleadings and ver- 
 dict, and its entry was a matter of course, it 
 is not void, but at most irregular, and such 
 irregularity must be taken advantage^f on 
 motion: Collins v. Chantland, 48-241. 
 
 153. The entry of a judgment in vacation, 
 except in cases authorized by statute, is ir- 
 regular, and whether it is void, quaere: Car- 
 miehael v. Vandebur, 50-651. 
 
 154. The court may hear a case and render 
 judgment during vacation if the parties con- 
 sent thereto: O'Hagenv. CHagen, 14-364 
 
 155. A valid judgment or decree cannot 
 be ifendered in vacation without consent: 
 Townsley v. Morehead, 9-5G5; McCiuie v. 
 Owens, 31-133. 
 
 156. Where it appears that a judgment is 
 
968 
 
 JUDGMENTS, II, a. 
 
 Validity and efEect. — Setting aside or vacating. 
 
 rendered and entered in vacation, and there 
 is no showing of consent of the parties or or- 
 der made in the term therefor, it will be con- 
 sidered as erroneous : Spear v. Fitdhpatrick, 
 37-137. 
 
 15 7. Entry of judgment in vacation with- 
 out any action of the court authorizing or 
 approving it is void: Balm v. Nunn, 63-641. 
 
 158. Where a judgment is entered in vaca- 
 tion, it is under the control of the court and 
 subject to modification or correction until 
 finally approved : Porter v. McBride, 44-479. 
 
 Further as to action of the court after the 
 legal expiration of the term or in vacation, 
 see Courts, §§ 139-145, 157-169. 
 
 II. Validity and effect. 
 a. Setting aside or vacating. 
 
 As to granting NEVf Teials in general, see 
 that title. 
 
 159. Petition to vacate: Under the 
 statutory provision (Code, g 3154) for vacating 
 a judgment upon application to the court in 
 which it has been rendered, made after the 
 term, held, that the application should be by 
 petition and not by motion, but that where 
 a motion was filed and the question as to the 
 right to a new trial was determined there- 
 under without objection, the action of the 
 court would not be reversed on appeal : Storm 
 Lake v. Iowa Falls & 8. C. R. Co., 62 318. 
 
 160. That the petition to set aside is not 
 vej-ified as required by statute vdll not ren- 
 der the proceedings thereunder void. Such 
 defect should be taken advantage of by 
 motion to strike the pleading from the files : 
 Rush V. Rush, 46-648, 651. 
 
 ICl. That the application for vacating or 
 setting aside does not set forth the facts con- 
 stituting a defense is a defect which must 
 be taken advantage of by motion for more 
 specific statement, or, possibly, by demurrer, 
 but cannot be made available on a trial on 
 the merits or by objection on appeal : Turner 
 V. First Nat. Bank, 80-191. 
 
 162. The fact that a motion for a new 
 trial has been previously made and over- 
 ruled does not debar the parly from seeking, 
 by proceedings under this provision, to have 
 the judgment vacated on other grounds than 
 those previously urged. Such application 
 may be united with other facts than those 
 
 directly connected with the cause in which 
 the vacation is sought, when such facts 
 constitute a defense to the claim upon which 
 the judgment was founded: Reno v. Teagar- 
 den, 24-144. 
 
 163. Where judgment is .igainst joint 
 defendants and one of them shows himself 
 entitled to have it set aside, it should be set 
 aside as to both : Storm Lake v. Iowa Falls 
 & S. C. R. Co., 63-318. 
 
 164. Time for application: Application to 
 vacate a judgment must be made witliin a 
 year. (See Code, § 3157) : Hunt v. Stevens, 26- 
 399. 
 
 165. The time within which the proceed- 
 ings must be instituted commences to run 
 from the entry of the judgment and not 
 from the time of final judgment on appeal. 
 It seems that taking an appeal waives the 
 right to this proceeding : Cray v. Coan, 48- 
 434. 
 
 166. If the proceeding to set aside a judg- 
 ment for fraud is brought within the period 
 allowed by statute, it cannot be objected to 
 as not prosecuted with sufficient diUgence. 
 The fact that the judgment has been assigned 
 to an innocent party before the bringing of 
 the action does not defeat the right to relief 
 against it: Independent School List. v. 
 Sdhreiner, 46-172. 
 
 167. The statutoiy limitations to proceed- 
 ings to vacate or set aside a judgment do not 
 apply to actions in equity founded upon the 
 general jurisdiction which equity exercises to 
 grant relief in cases of fraud: District Tp 
 V. White, 43-608. 
 
 168. A court of equity will grant a new 
 trii in an action at law if the time for apply- 
 ing for relief under the statute has elapsed, 
 only when proper reasons are shown for such 
 application: Ibid.; Bowen v. Troy Portable 
 Mill Co., 81^60; Bond v. Epley, 48-600. 
 
 169. A party who has knowledge of the 
 error complained of before the expiration of 
 the year, and does not pursue his remedy as 
 herein provided, cannot have equitable 
 relief against the judgment: Freeman v. 
 Hart, 61-525. 
 
 1 70. A judgment cannot be set aside in an 
 equitable proceeding, or enjoined on grounds 
 which would be sufficient to secure a new 
 trial under the statutory provision, above re- 
 ferred to: Hintragerv. Sumbargo, 54-604. 
 
JUDGMENTS, U, a. 
 
 969 
 
 Setting aside or vacating. 
 
 171. A proceeding in equity to set aside a 
 judgment as void need not be brought in the 
 same court where the judgment was ren- 
 dered : Arnold v, Hawley, 67-313. 
 
 172. In such case it is not necessary to al- 
 lege that plaintifE seeking to set aside the 
 judgment has a good defense to the cause of 
 action on which it purports to have been re- 
 
 ■ covered, nor is it necessary that he shall show 
 that he is not indebted to the party obtaining 
 the judgment : Tbid. 
 
 Further as to equitable relief against judg- 
 ments at law, see Equity, II, c. 
 
 173. The law contemplates that the motion 
 to set aside a judgment should be made at 
 the term next succeeding the one at which 
 entry of the judgment was made. If such 
 motion is afterwards made, the mistake 
 should be clearly manifest and the court 
 fully satisfied that ho prejudice could result 
 therefrom: Keeney v. Lyon, 21-877. 
 
 174. Notice of motion tosetnside: Under 
 chancery practice, held, that action of the 
 court in setting aside a decree at the term at 
 which it was rendered and without notice to 
 the opposite party wa^ erroneous: Throclc- 
 morton v. Stout, 3-580. 
 
 175. It is error at a subsequent term to set 
 aside an order for settlement and dismissal of 
 the cause, in the absence of, and without 
 notice to, the party whose i-ights are directly 
 affected : Keeney v. Lyon, 21-277. 
 
 176. Under particular facts, held, that the 
 action of the court in setting aside a judg- 
 ment on motion without notice to the ad- 
 verse party was not reversible error where 
 the adverse party had subsequently appeared 
 and been heard upon a motion to reinstate 
 the judgment: Yetzer v. Martin, 58-612. 
 
 In general, as to notice of setting aside 
 judgment or changing record, see Couets, 
 §§243-346. 
 
 177. Change of venue: The proceedings 
 authorized under this statute are in the nat- 
 ure of a writ of error coram nobis and are 
 provided for a review of a case, after final 
 judgment, in the very court wherein it was 
 rendered. The jurisdiction of all other courts 
 of such proceeding is thereby excluded and 
 a change of venue cannot be had : Oilman v. 
 Domyvan, 59-76 (apparently overruling State 
 V. WMtcomb, 52-85, in which it was held 
 that if the proceeding was properly com- 
 
 menced in the court where the judgment 
 was rendered, a change of venue to another 
 county might be had as in other cases). 
 
 178. In what cases granted: The statu- 
 tory provisions as to vacating judgments are 
 applicable to judgments in adversary pro- 
 ceedings, but not to an order for a guardian's 
 sale of property : Bunce v. Bunce, 59-533. 
 
 179. Grounds for vacating; fraud: The 
 term fraud is used in the statute specifying 
 the grounds for which a judgment may be 
 vacated in its ordinary sense : Lumpkin v. 
 Snook, 63-515. 
 
 180. It may admit of question whether a 
 false statement in a pleading, which the op- 
 posite party has a full and fair opportunity 
 to deny, can amount to fraud practiced by 
 the successful party : Miller v. Albaugh, 24- 
 128. 
 
 181. Fraud and negligence of defendant's 
 attorney in not interposing a valid defense 
 is not a ground for vacating a judgment and 
 granting a new trial: Jones v. Leech, 46-186. 
 
 183. Under the facts of a particular case, 
 held, that a combination was shown to sur- 
 prise and defraud the plaintifE in the pro- 
 ceeding in which the judgment had been 
 rendered from which relief was sought: 
 Pflffner v. Krapfel, 28-27. 
 
 183. A party cannot be charged with fraud 
 in procuring a judgment, unless some device 
 or artifice is resorted to in obtaining it 
 whereby the court is misled or deceived, and 
 the party against whom it is rendered is pre- 
 vented from asserting his claim or maiing 
 his defense. The mere fact of offering in 
 evidence a tax deed, valid on its face, but 
 which may be invalid by reason of some fact 
 connected with a prior proceeding in which 
 the deed was obtained, and of which the per- 
 son offering it has no knowledge, will not 
 constitute fraud: Brownell v. Storm Lake 
 Bank, 63-754. 
 
 184. Dismissal of an action cannot be 
 considered as having been procured by fraud 
 where it is alleged to have been on the 
 ground that the party was lulled into a sense 
 of security by promises on the part of the 
 other party to make some fair offer of com- 
 promise : Dalhoff v. Keenan, 66-679. 
 
 1 85. The promise of a person seeking to 
 foreclose a mechanic's lien, that he will pay 
 the claim of a prior lienholder upon the 
 
no 
 
 JUDGMENTS, 11, a. 
 
 Setting aside or vacating. 
 
 premises if such lienholder will not appear 
 and assert his prior lien, will not constitute 
 fraud authorizing the setting aside of the 
 judgment thus obtained on failure of the 
 promisor to make such payment, even though 
 the promise was made without intention of 
 performance: Lumpkin v. Snook, 63-515. 
 
 18(t. A court of equity can only grant re- 
 lief from a judgment for grounds specified 
 by the statute, even though such relief is 
 not sought until after the expiration of the 
 year within which the proceedings provided 
 for by statute are to be bi-ought : Ibid. 
 
 187. The district court has jurisdiction of 
 an action in which it is sought to set aside a 
 judgment in the probate court for fraud : 
 Cowin V. Toole, 31-513. 
 
 188. Fraud of the prevailing party on the 
 former trial being shown which is sufficient 
 to constitute reasonable grounds to believe 
 that a different result may be anticipated on 
 the retrial, the judgment should be vacated 
 and the new trial ordered : Broum v. Byam, 
 59-52. 
 
 189. The fraud shown in a particular case 
 held sufiB.cient to warrant the setting aside 
 of the judgment: Independent School Dist. 
 V. Schreiner, 46-172. 
 
 190. In dlvdrce cases: A decree of divorce 
 obtained by fraud of the successful party 
 may be set aside under the statutory pro- 
 vision, even though the rights of innocent 
 third parties have intervened by reason of a 
 remarriage, and in the petition for such re- 
 lief it need not be alleged that rights of inno- 
 cent parties have not intervened, that fact 
 being immaterial: Rush v. Rush, 46-648; S. 
 C, 48-701. 
 
 191. The fact that the party procuring the 
 fraudulent decree has again married will 
 not prevent its being set aside : Whitcomb v. 
 Whitcomb, 46-437. 
 
 192. A party who has remarried after 
 procvu-ing a fraudulent decree of divorce 
 which is set aside upon application of the op- 
 posite party may be convicted of adultery in 
 such remarriage : State v. Whitcomb, 52-85. 
 
 193. Casualty or misfortune: That a 
 party intended to appear and defend an ac- 
 tion, but was prevented from doing so by a 
 severe illness which rendered him incapable 
 of attending to and interposing his defense, 
 hekl sufficient ground for a vacation of the 
 
 judgment against him by default : Lusoomb 
 V. Maloy,26-4M. 
 
 194. And so held where defendant, hav- 
 ing left home in time to return to the trial, 
 was prevented from doing so by siclmeBs: 
 Brewer v. Holbom, 34r473. 
 
 195. The evidence in a particular case held 
 not to establish casualty or misfortune suffi- 
 cient under this section to warrant the setting 
 aside of a judgment : Niagara F. Ins. Co. v. 
 Rodecker, 47-163. 
 
 196. That defendant was misled by an 
 error in the copy of the notice served upon 
 him in regard to the date of commencement 
 of the term of court might be a suflBcient aver- 
 ment of unavoidable casualty or misfortune, 
 but where the petition contained an incon- 
 sistent averment that defendant had taken 
 legal advice as to whether the en'or relieved 
 him from obligation to appear at the proper 
 time, held, that he did not make out a case 
 forrelief : TrionsT. Keystone Mfg. Co., 61-406. 
 
 197. Where it appeared that notice of the 
 action was served on a married woman who 
 was defendant therein, and she testified that 
 she did not suppose-that it concerned her in- 
 dividually, and therefore failed to defend, 
 held, that there was not sufficient unavoida- 
 ble casualty or misfortune shown to entitle 
 her to have it set aside : TeaboVit v. Roper, 
 62-603. 
 
 198. Sirkness of counsel is a sufficient 
 excuse for want of attention to the case, 
 where it appears that such sickness has not 
 been of such long standing that the party 
 must be deemed guilty of negligence in not 
 employing another attorney to take his place: 
 Snell V. Iowa Homestead Co., 67-405. 
 
 199. Irregularity: A judgment rendered 
 by default upon a petition not filed by the 
 time stated in the notice, as required by 
 Code, § 2600, held sufficiently irregular to be 
 set aside upon application : Morgan v. Small, 
 33-118. 
 
 200. In case of death of pl.iinliff before 
 judgment: A judgment rendered in a party's 
 favor after his death, without substitution 
 of his representatives, is not void, but only 
 voidable, and is not to be set aside as a mat- 
 ter of course. Such judgment would, at 
 least in another action, be conclusively pre- 
 sumed to have been rendered while plaintiff 
 was living : Oilman v. Donovan, 53-363. 
 
JUDGMENTS, II. a. 
 
 971 
 
 Setting aside or vacating. 
 
 201. At any rate, under the statutory pro- 
 visions, proceedings to have such judgment 
 set aside must be brought within a year, and 
 the judgment will not be vacated until it is 
 determined that there is a valid defense to 
 the action in which the judgment was ren- 
 dered: Ibid. 
 
 As to judgment after death of defendant, 
 see supra, g 42. 
 
 202. Lost record: The fact that after ren- 
 dition of judgment all the written evidence 
 upon which an equity case had been tried 
 was lost, held not to be a sufficient reason for 
 gi-anting a new trial: Loomis v. McKenzie, 
 48-416. 
 
 203. In case of judgment against minor: 
 Under the statutory provisions (Code, § 3154) 
 allowing a minor to have a judgment vacated 
 for error therein, the right of an infant de- 
 fendant to attack a judgment against him is 
 fixed and determined, and it is not allowable 
 for the infant to come in as a matter of 
 •course with a new defense, or new evidence, 
 and try the case over again : Bielcel v. Erskine, 
 43-813; Webster V. Page, 54-461. 
 
 204. The minor can only take advantage of 
 error in the judgment apparent on the record, 
 and such as would be ground for reversal on 
 writ of error or appeal : Ibid. 
 
 205. Where in an action against a minor 
 an attorney appeared for him, and was during 
 the trial appointed guardian ad litem, and 
 made defense, held, that there was no ground, 
 in the absence of prejudice being shown, to 
 authorize setting aside the verdict and grant- 
 
 ' ing a new trial: Webster v. Page, 54r-461. 
 
 206. Want of service: The court in which 
 a judgment is rendered may, in a proceeding 
 to set it aside, inquire as to whether jurisdic- 
 tion was acquired by service of notice or 
 otherwise, although the judgment itself re- 
 cites the fact of service : Newcomb v. Dewey, 
 27-381. 
 
 207. Such a proceeding is a direct attack, 
 and tlie fact of want of service being shown, 
 the judgment should be vacated : State Ins. 
 Co. V. Granger, 63-272. 
 
 208. Setting up new defense: Where the 
 court has jurisdiction of the parties and the 
 subject-matter, a party who has not resisted 
 the claim before judgment should not after- 
 ward be allowed to move to set aside the 
 judgment for matters which might have 
 
 been contested by him : MeName v. Malvin, 
 56-362. 
 
 And see further as to failure to set up de- 
 fense, infra, II, c. 
 
 209. Although a party cannot have relief 
 against a judgment on a cause of action to 
 which he had a defense which he failed to set 
 up through ignorance of the facts which he 
 might have learned by due diligence and 
 inquiry, yet where, in an action against sure- 
 ties upon an official bond, judgment was had 
 against them, but afterward judgment was 
 rendered for the principal in the action 
 against him, held, that the sureties might 
 thereafter be relieved from the judgment 
 against them ; Ames v. Maclay, 14-281. 
 
 210. Who may move to set aside: Where 
 a judgment is fraudulent only between par- 
 ties, the injured party alone can take advan- 
 tage thereof, and the objection cannot be 
 made by a subsequent purchaser of property 
 affected by the judgment: Wright v. Keith- 
 ler, 7-92. 
 
 211. Discretion of the court: Unless 
 strictly forbidden by statute, it is always a 
 matter of discretion with the court to open 
 its own judgments and set them aside when 
 improperly or wrongfully obtained : Bailey 
 V. Heam, 8 G. Gr., 415. 
 
 212. Defense must be shown: Before a 
 party should be permitted to have a judg- 
 ment set aside on his application, he should 
 show that it was unjust : Piggott v. AddicJcs, 
 8 G. Gr., 437. 
 
 213. No showing of defense to the action 
 in which the judgment was obtained being 
 made, the judgment should not be set aside : 
 Russell V. Pottawattamie County, 29-356. 
 
 214. It must appear that a plaintiff seeking 
 relief from a judgment against him has a 
 valid action before the judgment can be 
 vacated : Coleman v. Case, 66-534. 
 
 That judgment will not be set aside or pro- 
 ceedings thereon enjoined in equity, unless a 
 defense is shown, see Equity, g§ 195, 196. 
 
 215. The proceedings provided for' by 
 statute (Code, § 3159) contemplate a trial as 
 to whether there is a valid defense. P.aint- 
 iff need not again introduce the evidence 
 necessary in the first in,stance to entitle him 
 to recovery : Morton v. Coffin, 29-235. 
 
 21G. If the court finds that there are not 
 sufficient grounds for vacating the judgment. 
 
972 
 
 JUDGMENTS, II, a, b. 
 
 Setting aside or vacating. — How far conclusive. 
 
 it need not inquire into the validity of the 
 defense offered. If it becomes necessary to 
 do so, however, not only the sufficiency of the 
 answer, but the truth of its averments, must 
 be determined: Niagara Ins. Co. v. Ro- 
 dedker, 47-162. 
 
 217. The judgment is only to be vacated 
 after a trial of the defense on its merits, and 
 the finding of the sufficiency thereof: Brewer 
 V. Solborn, 34-473. 
 
 218. Where in-egularity and fraud in ob- 
 taining a judgment were found, but there 
 was no evidence that there was a valid de- 
 fense, held error to order the judgment va- 
 cated : Dryden v. Wyllis, 51-534. 
 
 219. The court should first try the ques- 
 tion of the validity of the defense, and if 
 that should appear insufficient should over- 
 rule the application: Miracle v. Lancaster^ 
 46-179. 
 
 220. The court, without a jury, is to de- 
 cide upon the question of whether the judg- 
 ment shall be vacated or not, and a new trial 
 granted : Carpenter v. Brown, 50-451. 
 
 221. It is not the duty of the court, where 
 it is sought to have a judgment vacated on 
 the ground of fraud in procuring it, to care- 
 fully weigh the evidence and determine upon 
 which side there is a preponderance as to 
 whether there is a defense to the action or 
 not, but to examine the evidence produced, 
 and therefrom, in connection with the evi- 
 dence introduced on the former trial, deter- 
 mine whether there is a reasonable ground 
 to believe that a different result will be 
 reached upon a retrial ; and it is not proper 
 for the court to render another judgment 
 without first having decided whether the 
 original judgment should be set aside and a 
 new trial ordered : Brown v. Byam, 59-52. 
 
 222. Where the party asking that a judg- 
 ment be set aside presents a meritorious 
 defense, the court will not pass upon the suf- 
 ficiency of the evidence to support it. If the 
 evidence tends to support it, even though it 
 is not conclusive as to the facts, that will 
 be sufficient: Bowen v. Troy Portable Mill 
 Co., 31-460; State Ins. Co. v. Granger, 62- 
 273. 
 
 223. An appeal lies from a proceeding to 
 vacate a judgment for fraud: Dryden v. 
 Wyllis, 51-534. 
 
 224. Such appeal is not triable in the su- 
 
 preme court de novo: Independent School 
 Dist. V. Schreiner, 46-172. 
 
 225. A party cannot, by moving to vacate 
 a judgment, and then appealing from the 
 order refusing to grant such relief, extend 
 the time for taking appeal from the judg- 
 ment : 'Sussell v. First Nat. Bank, 65-342. 
 
 226. Corrections of mistakes of clerk: 
 Payment and satisfaction of a judgment by 
 defendant will not bar a proceeding by 
 plaintiff, within proper time, to correct a mis- ^ 
 take of the clerk : Goldsmith v. Clausen, 14- 
 378. 
 
 227. The statutory provision (Code, § 3156) 
 for the correction of mistakes of the clerk 
 on motion does not apply to an application 
 for the entry of a judgment nunc pro tunc 
 which has been entirely omitted : Fuller v. 
 Stebbins, 49-376. 
 
 228. Nor does such statutory provision 
 apply to a motion to correct a record, made 
 by a party against whom the court has by 
 mistake rendered a personal judgment with- 
 out having jurisdiction to do so : Shelley v. 
 Smith, 50-543. 
 
 229. Where a mistake of the clerk has re- 
 mained undiscovered until too late to correct 
 it by motion, under the statutory provision, 
 the ijarty being without fault and remediless 
 in law, may be granted relief in an action in 
 equity, and the fact that the erroneous judg- 
 ment has been affirmed on appeal wiU not 
 affect such right : Partridge v. Harrow, 27-96. 
 
 b. Mow far conclusive; collateral 
 attack. 
 
 As to attacking judgment for want of 
 jurisdiction, see JuEiSDiCTlON, §§ 154-164. 
 
 That a foreign judgment may be attacked 
 for want of jurisdiction of the court render- 
 ing it, see Jurisdiction, g§ 153-163. 
 
 230. Conclusive: Judgments are designed 
 to be finalities and are not to be controlled 
 by agi'eements between the pai'ties by which 
 such judgments are not to be regarded as 
 settling their rights : Siitliff v. Brown, 65-42. 
 
 231. Collateral attack: A stranger to a 
 judgment cannot attack it in a collateral ac- 
 tion because of matters preceding its rendi- 
 tion : Johns v. Pattee, 56-665. 
 
 232. The title of the purchaser at execution 
 sale under a judgment cannot be attacked by 
 
JUDGMENTS, II, b. 
 
 973 
 
 How far conclusive ; collateral attack. 
 
 a sti-anger for fraud in the judgment : Web- 
 ster v. Eeid, Mor., 467. 
 
 233. Even conceding that an anterior, in- 
 dependent collateral agreement resting in 
 parol can be shown to affect a subsequent 
 judgment and control the rights of the parties 
 thereunder, it must be clearly and satisfac- 
 torily established in point of fact: Burton 
 V. Mason, 26-393. 
 
 234. Where no steps have been taken to 
 correct an erroneous judgment by way of 
 appeal or other direct proceeding, it must be 
 regarded as conclusive against a collateral 
 attack: Thompson v. McKean, 43-402. 
 
 235. Where a court has jurisdiction of the 
 person and subject-matter, the judgment not 
 being void, is conclusive until set aside upon 
 appeal or by other direct m«thod, and cannot 
 be attacked collaterally : Darrow v. Darrow, 
 43-411; Finch v. Hollinger, 47-173. 
 
 236. In a summary proceeding against a 
 clerk to compel the payment by him of money 
 received under the provisions of a judgment, 
 he is bound by the judgment and cannot at- 
 tack its vaUdity : Elliott v. Jones, 47-124. 
 
 237. Where a court has jurisdiction of the 
 subject-matter and of the parties, the record 
 must be received as conclusive of the rights 
 adjudicated, and no fact established by the 
 judgment of the court can be controverted : 
 Mom-e V. Jeffers, 53-302. 
 
 238. Hence, held, that a provision in a 
 foreclosure decree in a federal court, that the 
 property should be sold without redemption, 
 could not be attacked in a proceeding for the 
 recovery of the property on the ground that 
 such a decree was void, the error being one 
 to be corrected on appeal, and not by collat- 
 eral attack: Ibid, 
 
 239. The judgment of a court having 
 jurisdiction of the parties and subject-mat- 
 ter cannot be attacked in a collateral pro- 
 ceeding for a mere error. Error can only be 
 corrected on appeal or in a direct proceeding : 
 Perry v. Miller, 54-277 ; McC'rillis v. Harri- 
 son County, 63-592 ; Central Iowa B. Co. v. 
 Piersol, 65-498. 
 
 240. Therefore, held, that where a justice 
 of the peace rendered a judgment prior to 
 the expiration of the hour which by law is 
 allowed to the defendant in which to appear, 
 the judgment, although erroneous, was noC 
 subject to be impeached in a collateral pro- 
 
 ceeding: Central Iowa B. Co. v. Piersol, 65- 
 498. 
 
 241. Proceedings by a ward to set aside a 
 sale and deed by his guardian, on account of 
 want of jui-isdiction in the proceeding . in 
 which the sale was ordered, is a direct and 
 not a collateral attack on such sale : Lyon v. 
 Vanatta, 35-521. 
 
 242. Where a judgment is averred, the 
 court is bound to presume, in the absence of 
 a showing to the contrary, that it was prop- 
 erly rendered, or that the steps necessary to 
 render it regular were taken: McPhail v. 
 Hyatt, 39-137. 
 
 That the judgment of a court having ac- 
 quired jurisdiction by service of notice, 
 though defective, can only be corrected in a 
 direct proceeding by appeal or otherwise and 
 cannot be questioned collaterally, see JUKIS- 
 DICTION, |;§ 206-233. 
 
 243. Attack for fraud : A party to a judg- 
 ment cannot collaterally impeach it for 
 fraud. It can be attacked on that ground 
 only by direct proceedings in chancery or 
 otherwise: Webster v. Reid, Mor., 467; Kerr 
 V. Leighton, 2 G. Gr., 196; Mason v. Messen- 
 ger, 17-261. 
 
 244. Any party whose rights are affected 
 by a judgment which is void or erroneous, 
 which he could not review or reverse by ap- 
 peal or writ of error, may show its invalidity 
 or error in any action in which it is brought 
 in question: Bixby v. Adams County, 49- 
 507. 
 
 245. A title confirmed by a judgment can- 
 not be affected by a charge of fraud in such 
 judgment where it is not sought to set the 
 judgment itself aside on that ground : Brace 
 V. Reid, 3 G. Gr., 423. 
 
 246. Want of authority of an attorney to 
 compromise a suit and consent to judgment 
 for a specific amount cannot be set up in an 
 action on such judgment in another state for 
 the purpose of defeating a recovery thereon : 
 Crawford v. White, 17-560. 
 
 247. Where action was brought by an at- 
 torney under the belief that he had authority 
 to bring such action for the plaintiff, but 
 without any such authority in fact existing, 
 held, that the judgment was void and a sale 
 thereunder should be set aside on the appli- 
 cation of the party : Marhham v. Burlington 
 Ins. Co., 69-515. 
 
9TA 
 
 JUDGMENTS, II, c. 
 
 Conclusive as to claims or defenses. 
 
 Further as to effect of want of authority of 
 attorney, see Attorneys, gg 40-54. 
 
 248. Mistake: That a judgment was inad- 
 vertently rendered by the court may be good 
 ground to set it aside by direct application, 
 but cannot be made available collaterally: 
 Sayden v. Anderson, 17-158. 
 
 249. The judgment finally rendered after 
 appeal cannot be collaterally impeached be- 
 cause the opinion of the appellate court 
 directed a different judgment to be entered : 
 Cooley V. Smith, 17-99. 
 
 250. Evidence: Where a judgment is of- 
 fered simply as an instrument of evidence, it 
 is not competent to attack it collaterally by 
 proof that it was fraudulently procured: 
 Smith V. Smith, 22-516. 
 
 251. In an action to set aside a fraudn- 
 lent conveyance, the validity of the judg- 
 ment of the party seeking to set such con- 
 veyance aside cannot be attacked by the party 
 claiming under such conveyance : Strong v. 
 Lawrence, 58-55; Kaiser v. Waggoner, 59-40. 
 
 0. Conclusive as to claims or defenses 
 which might have heen pleaded. 
 
 252. Defenses: A judgment is conclusive 
 as against any defense which defendant 
 might have interposed and relied on, al- 
 though he failed to interpose it, and he can- 
 not in a subsequent action relitigate the 
 matter which could thus properly have been 
 determined: Hackworth v. Zollars, 30-433; 
 Wolfinger v. Betz, 66-594 ; Johnson v. Butler, 
 2-535. 
 
 253. A defense which might have been in- 
 terposed in an action in which judgment is 
 recovered cannot afterwards be made a 
 ground for setting such judgment aside: 
 Ebersole v. Lattimer, 65-164. 
 
 254. A defense which a party has failed to 
 interpose in an action in which judgment 
 is recovered cannot afterwards be made the 
 ground of collateral attack upon the judg- 
 ment : Smith v. Leddy, 50-113. 
 
 255. Matter which might have been pleaded 
 to an original action cannot be made avail- 
 able as a defense to a suit on process of re- 
 viver upon a judgment obtained in ^ch 
 action : Thompson v. Hurley, 19-331. 
 
 256. After decree in a suit in which the 
 court is shown to have had jurisdiction, a, 
 
 party to the suit cannot prove, as against a 
 title derived under such decree, any defense 
 which he had to the original proceeding: 
 Gaylord v. Scarff, 6-179. 
 
 257. Defense of nsnry: A judgment, un- 
 less collusive, is, as between paa-ties who are 
 privy thereto, conclusive of all matters per- 
 taining to the right of action of plaintiff 
 therein or of defenses which were pleaded 
 or could have been pleaded by defendant. 
 So held where it was claimed that usurious 
 interest had been paid on the debt before 
 judgment : Philips v. Gephart, 53-396. 
 
 258. Ill the absence of frand, accident or 
 mistake occurring in an action at law in 
 which judgment is entered, defendant therein 
 cannot relitigate by an action in equity a de- 
 fense which he could have successfully set 
 up in the law action : Baiter v. Laue, 13-538. 
 
 259. A defendant failing to interpose a de- 
 fense which he has to an action at the proper 
 time cannot set up such defense as against 
 the judgment, unless he was prevented from 
 interposing it by fraud of the plaintiff : Law- 
 rence Savings Bank v. Stevens, 46-429. 
 
 260. In the absence of fraud or artifice on 
 the part of his adversary, a party defendant 
 is estopped from relitigating what he might 
 have successfully set up in defense to a former 
 action, and this estoppel operates against 
 those claiming under him: Tredway v. 
 McDonald, 51-663. 
 
 261. Jndgnient against snreties on mo- 
 tion: Any defense which would have been 
 available in the action in which judgment 
 was rendered cannot afterwards be urged 
 as against the judgment. Therefore, held, 
 wliere judgment was rendered on motion 
 against sureties in a bond given to release 
 attached property, such sureties could not 
 afterwards interpose an objection to the en- 
 forcement of such judgment which would 
 have been available to them by motion be- 
 fore judgment against them was rendered, 
 although such judgment was rendered sum- 
 marily in the original action as authorized by 
 law and not in a separate action : Bedwell v. 
 Gephart, 67-44. 
 
 262. Defenses in foreclosure proceedings: 
 Any facts which would defeat recovery in an 
 action to foreclose must be interposed as a 
 defense in that action and cannot afterwards 
 be raised as a ground for setting aside a de- 
 
JUDGMENTS, II, c. 
 
 975 
 
 Conclusive as to claims or defenses. 
 
 cree and sale thereunder : Dewey v. Peck, 33- 
 242. 
 
 2G3. A defense which might have been in- 
 terposed in a foreclosure suit cannot be set 
 up in an action for possession under a surety's 
 deed given in pursuance of the foreclosure 
 sale: Mally v. Mally, 53-654. 
 
 264. Where the rights of a party to a fore- 
 closure are directly put in issue, and he has 
 opportunity and Is directly called upon to 
 establish them, he cannot, after judgment 
 against him on default, relegate his claims as 
 against the plaintiff in foreclosure who has 
 bought in the property: Wolflnger v. Betz, 
 66-594. 
 
 2(15. Homestead exemption: Where a 
 judgment has been in a proper action made 
 a lien upon property the judgment is conclu- 
 sive between the parties, and defendant can- 
 not in an independent action assert the exemp- 
 tion of the property as a homestead : Collins 
 V. Chantland, 48-241. 
 
 260. Such exemption cannot be first inter- 
 posed after the property has been sold to sat- 
 isfy the lien of a judgment : Hemenway v. 
 Wood, 53-31. 
 
 267. In a proceeding for alimony: What- 
 ever necessarily inheres in a defense to a claim 
 must be presumed to be adjudicated when 
 the claim is adjudicated. Therefore, where 
 a husband brought action against his divorced 
 wife for the proceeds of a judgment recov- 
 ered in her name, and claimed to be in fact 
 his property, held, that this matter should 
 properly have been set up as a defense in the 
 wife's action for alimony, and would be con- 
 sidered adjudicated in that action : Patton v. 
 Longhridge, 49-318. 
 
 268. Sale under execution: In an action 
 by the purchaser at a judicial sale under 
 judgment against the defendant for posses- 
 sion of the lands sold, a defense to the action 
 wherein the judgment was rendered cannot 
 be interposed or set up by cross-bill to defeat 
 the action : Evans v. Rabbins, 39-472. 
 
 269. Where objections to a sale under exe- 
 cution have been urged in an action to set it 
 aside, other objections to the validity of such 
 Bale cannot afterwards be interposed in an 
 action by the purchaser for the possession of 
 the property : Austin v. Walker, 61-158. 
 
 270. Title to real property: In an action 
 brought to settle the title to real property 
 
 and obtain the possession thereof, everything 
 going to show that plaintiff had no right nor 
 title should be pleaded ; and by not putting 
 in issue any fact affecting or tending to de- 
 feat such title, the right to afterwards rely 
 thereon as against plaintiff's title is surren- 
 dered, unless the failure to do so occurred 
 under such circumstances as that equity will 
 grant relief : Campbell v. Ayres, 1-357. 
 
 271. The plaintiff in a partition proceeding 
 must set up ail the interest or title which he 
 claims in the land ; and he cannot, after par- 
 tition has been effected, set up a different 
 right than that alleged in the action of par- 
 tition, for the purpose of defeating the title 
 of the other parties : Oliver v. Montgomery, 
 39-601. 
 
 273. Where, in an action to quiet title, 
 brought by a purchaser of land, it was deter- 
 mined that a person made defendant therein 
 had no claim to the premises, and the same 
 person subsequently brought a partition pro- 
 ceeding against the same defendant in which 
 a portion of the land was set off to the latter, 
 held, that the interest thus set off could not 
 be set up by the purchaser as a defense in an 
 action for the purchase money, for the reason 
 that the adjudication in the action to quiet 
 title might have been interposed by him as 
 a bar to any proceedings for partition : Col- 
 lins V. Jennings, 42-44:7. 
 
 273. The validity of a tax which, has been 
 litigated in a state court in which every ques- 
 tion touching its validity and constitution- 
 ality might have been raised cannot be again 
 htigated in a federal court, where the two 
 suits are for the same relief and based upon 
 the same facts: Snell v. Campbell, 34 Fed. 
 Eep., 880. 
 
 274. Conflicting decrees: Where two de- 
 crees of different effect are entered in rela- 
 tion to the same matter, the one last ren- 
 dered will take precedence, and unless the 
 party claiming under the prior decree sets it 
 up in answer in the subsequent action, his 
 rights thereunder will be concluded ; Cooley 
 V. Brayton, 16-10. 
 
 275. An equitable defense not allowed to 
 be interposed in an action at law may be 
 made the ground of a bill in equity : Arnold 
 V. Grimes, 3-1. 
 
 276. Where a defendant permits judgment 
 to go against him by default on a legal de- 
 
976 
 
 JUDGMENTS, II, c, d. 
 
 Conclusive. — Former adjudication; estoppel. 
 
 mand, he may in a subsequent action set up 
 and rely upon equitable matters which would 
 have constituted an available defense in the 
 first action ; and semble, that the same would 
 be true where the clatm available as a de- 
 fense is a legal one: Fairfield v. McNany, 
 37-75. 
 
 277. Counter-claim: A recovery at law 
 on a cause of action against which a defend- 
 ant holds a claim available as a defense does 
 not defeat his right to bring a subsequent ac- 
 tion upon such claim : Ibid. 
 
 278. The fact that plantifE is under obliga- 
 tion to save defendant harmless on the very 
 cause of action upon which plaintiff sues 
 (plaintiff being assignee of such cause of ac- 
 tion) must be set up as a defense and not as 
 a counter-claim, and therefore, if not set 
 up, the judgment is conclusive against such 
 claim: Lawrence Savings Bank v. Stevens, 
 46-439. 
 
 279. Separate cause of action: Where 
 parties were entitled to a new trial for the 
 reason that the judgment had been rendered 
 against them upon service by publication 
 without appearance, held, that the fact that 
 in such motion for a new trial they might 
 have set up fraud in the prior proceedings 
 would not estop them from making such 
 fraud the basis of an independent action in 
 equity to set aside the sale had at such pro- 
 ceedings: Fleming's Heirs v. Hutchinson, 
 36-519. 
 
 280. Excuse for not making del'eiise: 
 Where there is an agreement to credit the 
 amount paid on a note and the debtor has no 
 reason to doubt that it has been done, and 
 fails to defend an action on the note on the 
 faith thereof and in ignorance that an unjust 
 amount is sued for, he will not be negligent 
 in failing to defend, and in such case may be 
 relieved against the judgment, if not paid, 
 to the extent of payments not credited, or if 
 the judgment has been compulsorily col- 
 lected, he may, it seems, recover back the 
 amount paid above the just indebtedness: 
 Doyle V. Reilly, 18-108. 
 
 281. Compromise: Where by reason of 
 compromise a defendant fails to set up a de- 
 fense or counter-claim which he might have 
 made available, but allows judgment to go 
 against him for a larger amount than his 
 real indebtedness, by reason of such arrange- 
 
 ment, he is not bound by the judgment, in 
 case the opposite party repudiates the terms 
 of the compromise : Savery v. Sypher, 39-675. 
 
 d. Former ad^udAcatiorv; estoppel. 
 
 282. Judgment conclnsiTe as to the is- 
 sues: A judgment upon an issue involved in 
 an action is a bar in a subsequent proceeding 
 upon the cause of action embraced in such 
 issues and settled by the judgment. The 
 adjudication, whether correct or erroneous, 
 is conclusive : Bettys v. Chicago, M. & St. P. 
 B. Co., 43-603. 
 
 283. Where the validity of a settlement 
 was called in question in one action, held, 
 that the adjudication was binding in a sub- 
 sequent action between the same parties 
 in which the same settlement was in issue: 
 Beynolds v. Babcoch, 60-289. 
 
 284. Where an action was brought against 
 defendant served by publication only, in 
 which his title to real property was adjudged 
 inferior to the lien of a judgment in attach- 
 ment, held, that he could not afterwards re- 
 litigate that objection in an action to remove 
 the cloud from his title : Everhart v. Hollo- 
 way, 55-179. 
 
 285. Judgment of court without juris- 
 diction: A judgment in rem in another 
 jurisdiction against a defendant not appear- 
 ing or personaOy served with notice and re- 
 maining unsatisfied wiU have no force or 
 effect in this state upon the cause of action 
 upon which it is claimed to be founded :^ 
 Melhop V. Doane, 31-397. 
 
 286. Proceedings in a court not having 
 equitable jurisdiction will not constitute a 
 bar to an equitable action for the relief 
 which the other court could not have given : 
 Gordon v. Kennedy, 36-167. 
 
 287. One who obtains an adjudication that 
 a judgment is void by reason of want of 
 jurisdiction cannot, in the face of such de- 
 cision, afterwards insist that such judgment 
 is valid : Sweezey v. Stetson, 67-481. 
 
 288. Party relying on judgment cannot 
 alterwards question it: Where defendant 
 has, for the purpose of defeating an action 
 against him, set up a previous judgment, as- 
 serting its validity, he is estopped from after- 
 wards, when it is sought to enforce his 
 previous judgment against him, denying that 
 
JUDGMENTS, II, d. 
 
 977 
 
 Former adjudication ; estoppel. 
 
 it is valid : District T'p v. Independent Dist. , 
 69-88. 
 
 289. Change of statute: A judgment In- 
 volving the construction of a statute, and 
 turning upon such construction, cannot be in- 
 voked, after the repeal of such statute, as an 
 estoppel as to the law under a subsequent 
 statute, though similar in its provisions: 
 Davemport v. Chicago, B. I. & P. R. Co., 
 88-633. 
 
 290. Mutuality : Estoppel by judgment 
 must be reciprocal, and it can make no dif- 
 ference in practice whether a party is plaint- 
 ifE or defendant in the action: Oliver v. 
 Montgomery, 39-601. 
 
 291. That a judgment may be pleaded as 
 a bar it must equally estop both parties. 
 Unless both litigants are precluded by it, the 
 judgment cannot be set up against either : 
 Myers v. Johnson County, 14^-47; McDonald 
 V. Gregory, 41-513 ; Ooodnow v. Litehfleld, 6&- 
 275. 
 
 292. A judgment upon demurrer is as 
 conclusive of the facts confessed by the de- 
 murrer as a verdict finding the same facts 
 would have been: Coffin v. Knott, 3 G. Gr., 582. 
 
 293. Judgment for defendant upon de- 
 ninrrer to a petition is conclusive upon the 
 same petition in another action, but not upon 
 a good and different petition on the same 
 cause of action : Keater v. HocTc, 16-33 ; Felt 
 ■0, Tumure, 48-397. 
 
 294. The facts in a particular case dis- 
 cussed and held to be the same as involved 
 in a preceding case in which a demurrer to 
 the petition was sustained: Felt v. Tumure, 
 48,397. 
 
 295. Dismissal: Where the case is dis- 
 missed by reason of the sustaining of a 
 demurrer based on the fact that it appears 
 that the court has no jurisdiction of the 
 action, such an adjudication does not bar a 
 subsequent action in the proper court on the 
 same cause of action : Roberts v. Hamilton, 
 S6-683. 
 
 296. In a former action upon substantially 
 tlie same allegations, defendant demurred to 
 the petition and the demurrer was sustained, 
 but plamtiflE had leave to amend and no 
 judgment was entered. The action being 
 afterwards abandoned, held, that the prior 
 proceedings did not constitute a bar to a sub- 
 sequent action : Allison V. Hess, 38-388. 
 
 Vol. 1 — 63 
 
 297. Befoi-e a prior judgment can be a bar 
 to a subsequent action, the point or matter in 
 issue between the parties must have been de- 
 termined, and such determination or decision 
 must have been on the merits. If, therefore, 
 a suit is discontinued, or if plaintiff has been 
 nonsuited, or if for any other cause there 
 has been no judgment of the court upon the 
 matter in issue, the proceedings are not con- 
 clusive, and will not bar another action upon 
 the same cause of action: Delany v. Reade, 
 4-293. 
 
 298. A judgment in which the court finds 
 for defendant and offers plaintiff a nonsuit, 
 which is accepted by him, does not constitute 
 a bar to a subsequent action on the same 
 cause of action : Atkins v. Anderson, 63-739. 
 
 299. A decree in the circuit court of the 
 United States in an equity case, dismissing 
 plaintiff's bill after the submission of the 
 case upon pleadings and proof, amounts to 
 an adjudication which will bar a subsequent 
 action: Scully v. Chicago, B. & Q. R. Co., 
 46-538. 
 
 300. Where the supreme court, on appeal, 
 dismissed an action in equity on the ground 
 that plaintiff established no right of action, 
 for the reason tliat his remedy, if any, was 
 at law, but remanded the cause to the lower 
 court for final judgment, held, that it was 
 error for the lower court to dismiss the action 
 " without prejudice to plaintiff's remedy at 
 law : " Marshalltown v. Forney, 64^664. 
 
 301. Affirmance on appeal: Where, on 
 appeal from a judgment in equity, the su- 
 preme court determined that the necessary 
 steps to secure a trial de novo had not been 
 taken, held, that the judgment appealed 
 from was conclusive as a former adjudica- 
 tion : Trescott v. Barnes, 51-409. 
 
 302. Compromise: Where an action was 
 brought to recover land to which plaintiff 
 claimed the right by reason of a contract, al- 
 leging performance thereof on his part, and 
 defendant i-esisted the claim on the ground 
 of failure of plaintiff to comply with the 
 terms of the contract, and by agi-eement a 
 compromise decree was rendered by which 
 plaintiff was allowed to recover a portion of 
 the land claimed, held, that such decree did 
 not amount to an adjudication in plaintiff's 
 favor as to a compliance on his pai-t with the 
 terms of the contract, and would not estop 
 
978 
 
 JUDGMENTS, n, d. 
 
 Former adjudication ; estoppel. 
 
 defendant from setting up failure of per- 
 formance as a defense to an action on the 
 contract: Burlington, O. R. & M. R. Co. v. 
 Benton County, 56-89. 
 
 303. A decree in equity that the equities 
 of the case are with plaintiff is equivalent to 
 a finding that the allegations of his peti- 
 tion necessary to maintain an action are 
 true : Benson v. Connors, 63-670. 
 
 304. Judgment on matter in abatement: 
 In order that a judgment may be a bar to a 
 subsequent action, it must appear that such 
 judgment was rendered upon the merits of 
 the subject-matter. If the former action 
 was decided against plaintiff on account of 
 a temporary disability, or a mistake in the 
 form of the action, or if from any cause the 
 matter has not been judicially passed upon, 
 a subsequent action wiU not be barred: 
 Miller v'. Langworthy, 3 G. Gr., 347. 
 
 305. Therefore, where an action by an as- 
 signee was defeated because not brought in 
 the name of the assignor (the common law 
 rule as to assignment of causes of action be- 
 ing then still in force), held, that a subsequent 
 action in the name of the assignor for the 
 benefit of the assignee was not barred : Ibid. 
 
 306. Where the judgment in a fonner 
 action on a guaranty was in, abatement on 
 the ground that it did not appear that plaint- 
 iff had exhausted his legal remedies against 
 the principal debtor, held, that it was not a 
 bar to a subsequent action on the same guar- 
 anty: Boyer v. Austin, 54r-402. 
 
 307. In order to enable a party to interpose 
 a plea of prior adjudication successfully it 
 must appear that the actual point of issue 
 between the parties has already been deter- 
 mined, and that such decision has been upon 
 the merits : Oriffin v. Seymour, 15-30. 
 
 308. Where there are two objections raised 
 against plaintiff's right of recovery and one 
 is preliminary (such as misjoinder of parties), 
 the presumption is that the court passed upon 
 that one, and if the objection there raised 
 was sufficient to defeat the action it would 
 be presumed that the ruling of the court was 
 upon that ground and that the court did not 
 pass upon the merits of the case : Ibid. 
 
 309. A verdict in favor of either party 
 will be presumed to be on the merits where 
 nothing to the contrary appears : Levi v. 
 McCraney, Mor., 91. 
 
 310. Judgment In probate: Asettlement, 
 in the proper court, of the accounts of a guai-d- 
 ian, wherein he was ordered to pay over a 
 certain amount, part of which was the pro- 
 ceeds of the sale of real property of his ward, 
 held to be an adjudication that the property 
 belonged in fact to the ward and not to him- 
 self, and was binding not only upon him but 
 upon the, surety upon his bond who had 
 become a party to the proceedings : McWill- 
 iams V. Kalbach, 55-110. 
 
 311. The allowance of a claim against an 
 administrator in a foreign jurisdiction does 
 not constitute an adjudication binding upon 
 an administrator appointed within the state, 
 and is not competent evidence in an action 
 to enforce the claim against the administra- 
 tor in this state: Cresswell v. Slack, 68-110. 
 
 Further as to allowance of claim constitut- 
 ing a prior adjudication, see Estates of De- 
 cedents, g§ 207, 208. 
 
 312. Habeas corpns: A party who, after 
 his application for discharge from arrest by 
 habeas corpus has been denied, gives a bond 
 for his appearance, cannot in an action on 
 this bond again call in question the regular- 
 ity of the acts of the magistrate which have 
 been reviewed in the proceeding for habeas 
 corpus: State v. Tucker, 22-224. 
 
 313. Acquittal in criminal case: In an 
 action for maintaining a nuisance in the sale 
 of intoxicating liquors, an adjudication that 
 defendant is not guilty of an offense punish- 
 able upon information filed before a justice 
 of the peace cannot be pleaded as a prior ad- 
 judication : Martin v. Blattner, 68-286. 
 
 314. The ruling on motion to set aside 
 default is binding as a former adjudication 
 of the question acted upon but not as to a 
 matter not included in the motion, but grow- 
 ing out of the default: White v. Watts, 
 18-74. 
 
 315. Remedy against attachment: Where 
 it was provided by statute that in an action 
 commenced by attachment the lights of de- 
 fendant to the attached property might be 
 investigated by a jury, held, that such pro- 
 ceedings should not be considered to prevent 
 the claimant of property so taken from seek- 
 ing his remedy in an action of replevin: 
 Morrill v. Miller, 3 G. Gr., 104. 
 
 316. Counter-claim: Where a counter- 
 claim was interposed in an action and not 
 
JUDGMENTS, 11, d. 
 
 979 
 
 Former adjudication ; estoppel. 
 
 withdrawn and judgment was rendered for 
 plaintiff's entire claim, held, that this was 
 an adjudication of the counter-claim and it 
 could not be made the basis of a new action : 
 QunsauUs v. Cadwallader, 48-48. 
 
 317. Allowance of part of claim: Where 
 action was brought for the recovery of two 
 tracts of land, and after trial on the merits 
 judgment was rendered for one tract only, 
 held, that this constituted an adjudication in 
 favor of defendant as to the second tract 
 which would bar a second action therefor by 
 plaintiff: Woodinv. demons, 32-380. 
 
 318. Judgment for want of evidence: 
 Judgment for defendant upon failure to in- 
 troduce any evidence by plaintiff in an action 
 as to the issues made by defendant therein will 
 be conclusive as to plaintiff's right of action, 
 and he cannot relitigate the same issues: 
 Hayden v. Anderson, 17-158. 
 
 319. The defendant having once been com- 
 pelled to litigate a claim made in an action 
 and prepare for his defense has the right of 
 immunity from being again required to an- 
 swer the same claim, even if it is shown by 
 the record that no evidence was offered 
 by the other party, the action not having 
 been dismissed nor the unsupported claim 
 withdrawn before judgment: Schmidt v. 
 Zahensdorf, 30-498 ; CrunsauUs v. Cadwalla- 
 der, 48-48. 
 
 320. Issues involved: A judgment upon 
 an issue of fact is conclusive upon the par- 
 ties as to questions directly involved, although 
 no reference is made thereto in the plead- 
 ings: McGregor V. McGregor, 31-441. 
 
 " 321. Where, under a former suit on a con- 
 tract, a defense was set up in denial of plaint- 
 iff's right to recover at all thereon, and a 
 verdict was returned and judgment entered 
 for plaintiff, held, that such adjudication 
 was conclusive in a subsequent action upon 
 the same contract, and defendant could not 
 insist that the recovery in the former case 
 had been upon another contract claimed by 
 defendant in that case to have been sub- 
 stituted for the one upon which plaintiff sued, 
 such issue being necessarily involved in the 
 issue determined in the former case : Staple- 
 ton V. King, 40-278. 
 
 322. A judgment of a court of competent 
 jurisdiction is conclusive on the parties as to 
 aU the points directly involved in it, and 
 
 necessarily determined, byt as to no other. 
 Thei-efore, held, that the adjudication in an 
 action in which it was sought to have certain 
 mortgages set aside as fraudulent, the mort- 
 gagors being parties and such relief being 
 granted, would not bar a subsequent action 
 by the mortgagors to restrain the subjection 
 of such property to the payment of the debt 
 on the ground that it was their homestead : 
 Shirland v. Union Nat. Banh, 65-96. 
 
 32.?. Where a party's right to the posses- 
 sion of property had been determined by the 
 judgment in an action against one in posses- 
 sion, but possession had not been secured by 
 the party entitled thereto, held, that he 
 might, in a new action, rely on the same acts 
 which had been found to amount to con- 
 version in the prior action : Jones v. Clark, 
 37-586. 
 
 324. Where an item of account is in- 
 cluded in the suit and evidence introduced 
 thereon, the adjudication is conclusive as to 
 such item, whether it is allowed or not. 
 Plaintiff cannot be heard to say that he did 
 not intend to include it: Street v. Beclcman, 
 43-496. \ 
 
 325. Where in an action for specific per- 
 formance relief was denied not only to 
 plaintiff therein but also to defendant, who 
 asked possession of the land and rents and 
 profits, and both parties were remitted to 
 their remedies at law, held, that in a new 
 suit by defendant in the former action to re- 
 cover possession of the property, the former 
 plaintiff could not set up the contract relied 
 on in the former suit, the judgment being 
 conclusive: Painter v. Hogue, 48-436. 
 
 326. In an action by a receiver for rents, 
 etc., against one who was a party to the fore- 
 closure proceeding in which the receiver was 
 appointed, held, that the questions whether 
 the mortgage security was inadequate and 
 whether default had been made in payment 
 of the mortgage debt must be regarded as 
 adjudicated in the previous action : Goodhue 
 V. Daniels, 54-19. 
 
 327. In a former action for the price of 
 two plows under contract, defendant set up 
 that by the contract, if they proved defective, 
 he might return them. One of them had 
 proved defective, and he had returned it to 
 plaintiff, and thereupon plaintiff only recov- 
 ered for one plow. In a subsequent action 
 
980 
 
 JUDGMENTS, U, d. 
 
 Former adjudication ; estoppel. 
 
 the same plaintiff based his action on the 
 ground that defendant wilfully and through 
 gross carelessness ruined said plow. Held, 
 that to ha,ve defeated plaintiff's action in the 
 first case as to one plow, defendant must have 
 established that he took ordinary care, and 
 that the same issue could not be retried again, 
 although the latter action was for tort, while 
 the former was based on contract : Newby v. 
 Caldwell, 54^103. 
 
 328. Where plaintiff had brought replevin 
 for property as improperly seized by an o£B- 
 cer and had been defeated and a judgment 
 a^inst him for the value of the property 
 rendered, one of the issues being that he did 
 not give proper statutory notice to the sheriff 
 of his claim upon the property, held, that he 
 was concluded by such judgment from after- 
 wards suing for damages for conversion: 
 Finch V. Hollinger, 46-216. 
 
 329. Issues not involved: A decree in 
 an equitable action in another state, brought 
 merely to determine the ownership of prop- 
 erty, cannot be considered to establish ul- 
 terior questions, as, for instance, the validity 
 of a compromise settlement not involved in 
 the issue in the first case: MoQregor v. 
 McGregor, 21-441. 
 
 330. In an action against a minor for shoot- 
 ing a horse, held, that the judgment in a 
 prior action against his father for the same 
 trespass, which failed because it was held 
 that the father was not responsible for the 
 minor's torts, could not be received in evi- 
 dence to establish a former adjudication: 
 Tucker v. McClure, 17-583. 
 
 331. An action against a railway com- 
 pany for permanently abandoning the use 
 of a switch, held not to be barred by an ad- 
 judication in a previous action between the 
 same parties for damages for refusing to re- 
 move a car of freight over such switch: Ams- 
 den V. Dubuque & S. C. B. Co., 32-388. 
 
 332. The fact that in a former action for 
 divorce on the ground of adultery with a 
 certain party plaintiff was unsuccessful will 
 not bar a second action for divorce on the 
 ground of conviction for a felony, although 
 the felony consists of a rape committed on 
 the same party with whom adultei-y was 
 formerly charged and at the same time : Vin- 
 sant V. Vinsant, 49-639. 
 
 333. If the pleadings present several prop- 
 
 ositions of fact, the judgment is not conclu- 
 sive upon any one of them, unless it appears 
 from the record or aliunde that the issue 
 upon which it was rendered was upon that 
 proposition : Davis v. Clinton, 58-389. 
 
 334. In order to constitute a former ad- 
 judication it must affirmatively appear that 
 the matter in dispute was put in issue and, 
 tried. Therefore where it appeared that in 
 a former action defendant stated as a matter 
 of defense to a note sued on that it had been 
 fraudulently altered in a material respect 
 and judgment was rendered in his favor, 
 held, that as a material alteration would 
 have defeated recovery on the note, although 
 not fraudulent, the adjudication in the case 
 was not conclusive as to the question whether 
 the alteration was fraudulent or innocent and. 
 would not operate as a bar to a subsequent 
 action on the indebtedness on which the note 
 was given : Eckert v. Pickel, 59-545. 
 
 335. An adjudication in favor of defend- 
 ants in an action against them, held not to 
 amount to an adjudication as between them 
 as to a question in which they were not 
 then adversely interested: Tama County v, 
 Melendy, 55-395. 
 
 336. Where defendants in an action on a 
 written instrument set up that they were 
 merely sureties, the adjudication of that fact 
 in the judgment does not constitute, as be- 
 tween such defendants, an adjudication pre- 
 venting them from establishing their respect- 
 ive relations to the indebtedness; especially 
 if the person alleged to be the principal 
 debtor was not a party to the proceeding : 
 Walters v. Wood, 61-290. . 
 
 337. Different issues: An adjudication 
 against the holder of a note that he is not 
 entitled thereto is not binding upon the 
 maker in a subsequent action in which he 
 pleads payment to such party made at a 
 time prior to such adjudication and when he 
 had a right to make such payment : Stoddard 
 V. Burton, 41-583. 
 
 338. An adjudication against the vaUdity 
 of a tax title will not constitute an adjudica- 
 tion barring the assertion by the same party 
 of title under a tax deed subsequently issued 
 under the same certificate : Mallory v. French, 
 38-431. 
 
 339. Where a tax title is attacked in a fed- 
 eral court for invalidity of the tax, which 
 
JUDGMENTS, II, d. 
 
 981 
 
 Former adjudication; estoppel. 
 
 might have been urged in a prior action in 
 the state court, the judgment in tlie state 
 court will be deemed an adjudication, but if 
 another question is presented, involving the 
 amount necessary in order to redeem from a 
 tax sale which had not taken place at the 
 time of the prior adjudication, the right of 
 redemption and amount to be paid not hav- 
 ing been involved, the second action is not 
 barred: Snell v. Campbell, 34 Fed. Rep., 880. 
 
 340. Identity of issue: No matter can be 
 pleaded as res adjiidicata which was not em- 
 braced in or covered by the pleadings in the 
 former suit. Matters which arise only inci- 
 dentally, however much they may influence 
 the mind of the judge or jury in arriving at 
 a conclusion, are not to be deemed as having 
 been adjudicated: SCaight v. Keokuk, 4-199. 
 
 341. While, parol evidence is sometimes 
 admissible to show ■what was tried or sub- 
 mitted in a former case, it is admissible only 
 to show that some particular item of demand, 
 claim or right which would be covered by 
 the pleadings was or was not submitted, as, 
 for instance, under a general submission to 
 an award : Ibid. 
 
 Sii. The subject-matter of the two actions 
 must be the same in order to make the one 
 conclusive in the other : Ibid. 
 
 343. Estoppel by reason of former adjudi- 
 cation will arise when the matter in question 
 was covered by and embraced in the plead- 
 ings and judgment in the former suit. If it 
 does not appear affirmatively from the face 
 of the record that the matter was so em- 
 braced, it is competent to prove, in connec- 
 tion with the record, by parol, that the mat- 
 ter did arise and was adjudicated: Carl v. 
 Knott, 16-379. 
 
 344. Upon the question of the identity of 
 the matter involved in the respective suits, 
 if the records do not show such identity, or 
 it is left in uncertainty, parol evidence is ad- 
 missible : but evidence of this kind cannot be 
 introduced to contradict the record : Staple- 
 ton V. King, 40-378. 
 
 34.5. This rule has never been extended, 
 however, to the introdurrtion of evidence to 
 show the action of the jury, or what matters 
 were taken into consideration : C'T^m v. Boss, 
 48-433. 
 
 346. Where a former judgment or decree 
 is relied upon as a bar to an action it must 
 
 appear either by the record or by extrinsic 
 evidence that the particular matter in con- 
 troversy and sought to be concluded was 
 necessarily tried and determined in the 
 former action, the burden of establishing 
 the plea of former adjudication being upon 
 the party pleading it : Goodenow v. lAtchfield, 
 59-236. 
 
 347. Where a former adjudication is 
 pleaded, it is the duty of the court to con- 
 strue the record offered in evidence and state 
 to the jury what it did or did not include, 
 the question of the identity of the transac- 
 tion being left for their determination : Carl 
 V. Knott. 16-879. 
 
 348. The question of the identity of the 
 cause of action with that formerly adjudi- 
 cated is to be determined by the jury upon 
 the evidence adduced: Amsden v. Dubuque 
 & S. C. R. Co., 33-288. 
 
 340. Where the same evidence will sup- 
 port the issue: To constitute a former 
 adjudication it is not necessary that both 
 actions should be in the same form. It ia 
 only necessary that they should affect the 
 same parties and involve the same matter or 
 determine the same cause of action. Suits 
 wiU be regarded as thus identical when the 
 same evidence will support both actions: 
 Coffin V. Knott, 2 G. Gr., 583. 
 
 3.50. The most infallible test as to whether 
 a former judgment is a bar to a subsequent 
 action is to inquire whether the same evi- 
 dence would have maintained both the pres- 
 ent and the former action: Hahn v. Miller, 
 68-745. 
 
 3.51. Whole matter in dispute: An ad- 
 judication as to a portion of an indivisible 
 and entire cause of action will bar any action 
 brought on another portion of such cause of 
 action : Hempstead v. Des Moines, 63-36. 
 
 3-52. Where there is a general judgment 
 for one party or the other, several distinct 
 causes of action bein^ covered by such ad- 
 judication, the identity of such causes of ac- 
 tion being once established, they cannot again 
 be questioned ; but it Is different when in a 
 decree in chancery it appears affiiToatively 
 that the rights of the parties were adjusted 
 upon a ground which does not in its general 
 or special statement include the matter in 
 controversy : Cfirl v. Knott, lR-379. 
 
 SoS. The estoppel by judgment extends to 
 
982 
 
 JUDGMENTS, II, d. 
 
 Former adjudication ; estoppel. 
 
 the whole matter in dispute in the cause in 
 which it is rendered, and therefore to every 
 point decided in the proceedings leading to 
 the judgment : WJiitaker v. Johnson County, 
 13-593. 
 
 354. The judgment is evidence in a subse- 
 quent action to prove an estoppel, though 
 the form of the action in the second case is 
 different from the first, if the cause of action 
 is the same : Ibid. 
 
 355. But the former adjudication must 
 have been between the same parties, and, 
 what is a better test, the matter previously 
 adjudicated should have the efEect to estop 
 equall}' both parties: Myers v. Johnson 
 County, 14-47. 
 
 35C. The general rule is that the judgment 
 of a competent court is conclusive between 
 the parties upon all questions directly in- 
 volved in the issues, and necessarily deter- 
 mined by it. If the verdict of the jury is 
 special and it is made to appear by the rec- 
 cord that the failure to recover was owing to 
 the failure to prove the existence of a ma- 
 terial fact, the judgment will not estop the 
 J)arty from showing in a subsequent action 
 such fact as existing after the judgment in 
 the former case. But if the verdict and 
 judgment are general and upon the merits, 
 they must be regarded as an adjudication of 
 all the issues in the case: Hahn v. Miller, 68- 
 745. 
 
 357. Part of clnim: A party cannot re- 
 cover in parts a claim which, in its legal 
 nature, is indivisible. Under the facts of 
 this case, held, that a principal, whose agent 
 had sold various articles of property for him, 
 might recover in an action for money re- 
 ceived by such agent from one of the sales, 
 although thei-e had been a recovery for the 
 proceeds of other sales in a prior action. If 
 the facts were such as to create a running 
 account between the principal and agent, a 
 different rule might apply: Sweeny v. 
 Daugherty, 23-291. 
 
 35S. Subsequent damag'es: Therefore, 
 where, in an action for damages by one land- 
 owner against an adjoining owner for the 
 construction of an embankment which it 
 was claimed obstructed a water-course, and 
 threw the water back upon the land of 
 plaintiff, held, that a judgment for defend- 
 ant would be conclusive in a second action 
 
 in which the construction of such embank- 
 ment was alleged, coupled with an allegation 
 that, since the former action, it had been 
 heightened and extended, the primary cause 
 of action, consisting in causing the flowing 
 back of water upon the premises of plaintiff, 
 being the same, and it being immaterial that 
 the embankment as maintained at the time 
 of the second action had the effect to throw 
 back upon the plaintiff's land a greater quan- 
 tity of water than was thrown back by it as 
 it was maintained when the former suit was 
 instituted : Hahn v. Miller, 68-745. 
 
 359. Where plaintiff in his fiist action 
 claimed damages generally for the diversion 
 of a stream of water across his land, by the 
 construction of an embankment by defend- 
 ant, and in a subsequent action claimed dam- 
 ages for continuing to divert said stream in 
 the same manner, held, that the damages 
 were entire, original and susceptible of an 
 immediate recovery, and the second action 
 could not be maintained, although in the 
 first case the jury were instructed that they 
 were not to consider permanent damage, for 
 the reason that plaintiff might institute other 
 suits for damages subsequently accruing. 
 In such case plaintiff should have protected 
 himself from such erroneous instructions by 
 appeal: Stodghill v. Chicago, B. & Q. R. Co., 
 53-341. 
 
 As to continuing damages, see Damages, 
 
 I, g- 
 
 360. Claims subsequently accruing: 
 
 Where plaintiff had in a former action sued 
 upon a special contract in writing under 
 which he had furnished material and built a 
 house for defendant, and the jury being 
 charged that under the pleadings and evi- 
 dence plaintiff could not recover unless they 
 found that defendant had "accepted the work, 
 a verdict was returned for defendant, held, 
 in a subsequent action brought upon a quain- 
 turn valebat, that if there was an acceptance 
 of the work since the former action the suit 
 might be maintained under the circum- 
 stances of this case, but that such acceptance 
 was not manifested alone by use and occu- 
 pation of the house, if under protest and 
 without circumstances indicating acquies- 
 cence : Corwin v. Wallace, 17-374. 
 
 361. Where suit was brought for fore- 
 closvue of a mortgage and power of sale upon 
 
JUDGMENTS, II, d. 
 
 983 
 
 Former adjudication ; estoppel. 
 
 default in the payment of interest, and judg- 
 ment was given for the interest due and for 
 foreclosure, held, that the right to foreclose 
 for the whole debt or subsequent accruing 
 interest was not adjudicated, and part of the 
 land having been sold under the first fore- 
 closure, the balance could be foreclosed and 
 sold upon a judgment for the principal debt 
 declared due for failure to pay subsequently 
 accrued interest : Pope v. Durant, 26-233. 
 
 362. A former adj udication against plaintiff 
 by reason of a payment due is not a bar to 
 a subsequent action brought for a tender 
 made subsequently to the former suit and not 
 in issue therein : JDwyer v. Ooran, 29-126. 
 
 363. An adjudication as to the legality of 
 taxes for one year will not be binding in an 
 action between the same parties in reference 
 to the taxes of another year. Each j-ear's 
 taxes constitute a distinct and separate cause 
 of action. They do not grow out of the same 
 transaction : Davenport v. Chicago, R. I. & 
 P.R. Co., 38-633. 
 
 364. Where a claim for exemption from 
 taxation rests upon facts which are liable to 
 differ from year to year, an adjudication 
 respecting an exemption for one year is not 
 an adjudication respecting an exemption for 
 other years: Tubbesingv. Burlington, 68-691. 
 
 305. An adjudication as to the rights of 
 parties under a contract not fully performed 
 and covering an unexpired time will not af- 
 fect matters arising under such contract 
 after the adjudication and prior to the ex- 
 piration of the time: Drake v. Vorse, 42- 
 653. 
 
 308. Where a wife brought suit for divorce 
 and claimed generally to be entitled to a 
 fund in court which was the proceeds of a sale 
 of homestead property, and her petition was 
 . dismissed, held, that she was estopped by said 
 decree from claiming the fund by reason of 
 any of the grounds alleged in her action for 
 divorce, but not from claiming it on any 
 other ground : Wright v. Wright, 16-496. 
 
 307. A second bill in equity setting up 
 equities materially different from those set 
 up in the former bill will not be barred by an 
 adjudication in such former bill, although 
 relating to the same property And the same 
 parties: Morris v. Stuart, 1 G. Gr., 375. 
 
 368'. Presninptions: It must be presumed 
 from a judgment that all the issues were de- 
 
 cided in favor of the successful party, and the 
 affirmance of such a judgment in the supreme 
 court upon one ground is not to be considered 
 as a reversal upon the other issuefe : Pinch v. 
 Hollinger, 46-216. 
 
 369. It will not be presumed, for the pur- 
 pose of upholding the claim of prior adjudi- 
 cation, that of several grounds upon which 
 such adjudication might have been made, 
 the court made it upon an erroneous ground 
 urged in such proceeding rather than upon 
 another ground which was suflScient to sup- 
 port it : Linton v. Crosby, 61-401. 
 
 370. Causes of action similar but not 
 identical: Where two notes were executed 
 for the purchase price of property, and in an 
 action upon one of them the maker pleaded 
 as a defense a breach of covenant of war- 
 ranty in the sale, and claimed damages 
 therefor, and also pleaded a failure of consid- 
 eration, and on the trial recovered judgment 
 for damages, held, in an action on the second 
 note, that the claim for damages for breach 
 of warranty had been adjudicated in the first 
 action and could not be set up as a defense 
 to the second note, but that the plea of failure 
 of consideration in the action upon the first 
 note did not preclude the same defense to the 
 action on the second : Clark v. Sammons, IZ- 
 368. 
 
 371. Where an agent for the sale of mar 
 chinery took from a purchaser three notes in 
 payment for machinery sold, and, under a 
 mistaken opinion as' to his obligation under a 
 contract with his principal, guarantied such 
 notes, although not required to do so by such 
 contract, held, that an adjudication of his 
 liability on one of such guaranties was bind- 
 ing as a, former adjudication in an action 
 upon the others, the three acts of guaranty 
 constituting but one transaction based upon 
 a mistake common to all of them : Aultman 
 V. Mount, 62-674. 
 
 372. Action on coupons: Where action 
 was brought upon certain coupons against 
 the maker and judgment recovered thereon, 
 held, that such judgment was conclusive 
 in a subsequent action against the same 
 maker upon other coupons of the same kind, 
 pertaining to bonds issued at the same 
 time for the same purpose, and founded upon 
 the same consideration, and that such former 
 adjudication might be pleaded in bar to the 
 
984: 
 
 JUDGMENTS, II, d. 
 
 Former adjudication ; estoppel. 
 
 Bame issues raised in the second action : Whit- 
 aker v. Johnson County, 12-595. 
 
 373. An adjudication by one court involv- 
 ing coupons from school bonds afterwards in 
 suit in another court must be held conclusive 
 upon all questions which it appears were in 
 fact litigated and decided in the former ac- 
 tion. But where the latter suit is upon bonds 
 and coupons not included in the former 
 judgment, it is open to all parties to be heard 
 upon all questions which were not in fact 
 nor of necessity involved in and decided by 
 the former adjudication. The burden of 
 showing what was decided in the former case 
 is upon the party affirming the adjudication: 
 Geneva Nat. Bank v. Independent School 
 Dist, 35 Fed. Rep., 639. 
 
 374. An adjudication of a court touching 
 the validity of coupons is not necessarily an 
 adjudication as to the validity of the bonds 
 to which the coupons were attached : Nesbit 
 V. Independent School Dist., 35 Fed. Eep., 
 635. 
 
 375. Recovery of taxes: An adjudication 
 by a competent tribunal is conclusive not 
 only in the proceeding in which it is an- 
 nounced, but in every other in which the 
 right and title are the same, although 
 the cause of action may be different. There- 
 fore where an action had been tried in the 
 federal court, in which plaintiff's assignor had 
 sought to recover from defendant possession 
 of certain land, and in case of failure therein 
 then to recover from defendant taxes paid 
 upon said land, and in said suit, upon appeal 
 to the supreme court of the United States, 
 the bill was dismissed, h^ld, that such adjudi- 
 cation was a bar to a subsequent action in a 
 state court not only for taxes claimed in that 
 action but also for taxes subsequently paid 
 under the same state of facts : Cfoodenow v. 
 lAtehfleld, 59-226. 
 
 376. A special flnding as to one particular 
 fact made by the jury on one trial is not 
 binding upon the parties upon a new trial of 
 the same case: Hollenbeok v. Marshalltown, 
 63-31. 
 
 377. Second appeal: A determination of 
 a question on appeal amounts to an adjudi- 
 cation and is not subject to review in a 
 second appeal in the same case : Star Wagon 
 Co. V. Swezy, 63-530. 
 
 On a second appeal the rulings on the 
 
 former appeal constitute the law of the case: 
 See Appeals, §g 973, 974. 
 
 378. Upon whom binding; persons not 
 parties: An adjudication is not binding upon 
 persons who are neither parties nor privies to 
 the proceeding: Hultz v. Zollars, 89-589; 
 Tiffany v. Stewart, 60-207. 
 
 379. One who is not a party to an appeal 
 cannot be bound by the decision on the ap- 
 peal : How V. Jones, 60-70. 
 
 380. Where judgment was rendered against 
 defendant, and a garnishee in the same 
 answer was adjudged liable to a certain 
 amount, held, that such adjudication was 
 not binding upon the defendant as to the 
 amount owed by the garnishee, at least 
 where the original judgment was satisfied 
 without resort to such garnishee : Collins v. 
 Jennings, 48-447. 
 
 381. An adjudication as to a fact, made in 
 one action, is not binding in a subsequent 
 action as to those who were not parties to 
 the former action. Upon the trial of the 
 second action, the facts found in the former 
 one may be shown to have been entirely 
 different: Hine v. Keokuk & D. M. R. Co., 
 43-636. 
 
 382. A judgment in an action to foreclose 
 a mechanic's lien is not conclusive as to 
 lienholders not parties thereto, either as to 
 the time the lien accrued or as to the 
 amount due thereunder: Orosbry v. Winter, 
 54-653. 
 
 383. Where S. was sued as guarantor on a 
 county warrant, and Q. as primarily liable, 
 and during the course of the proceedings the 
 service of the notice was quashed and G. was 
 not again brought into court, held, that there 
 was no adjudication of the question of G.'s 
 liability, and the judgment was no bar to a 
 subsequent action against him: McCormick 
 V. Orundy County, 24-383. 
 
 384. A decree declaring a deed void for 
 fraud, as between certain parties who file 
 bills for that purpose, will not be conclusive 
 in a subsequent action in behalf of a plaint- 
 iff who was not party to the action in which 
 the decree was rendered. As to such plaint- 
 iff, the deed may not have been fraudulent: 
 Huntington v. Jewett, 35-349. 
 
 385. A decree canceling a debt mentioned 
 in a trust deed, entered in an action to which 
 an assignee of the note which constituted 
 
JUDGMENTS, II, d. 
 
 985 
 
 Former adjudication ; estoppel. 
 
 the debt was not made a party, such assignee 
 being known to plaintiff and plaintiff con- 
 senting to pay costs, is, as to the debt evi- 
 denced by the note, res inter alios acta and 
 not binding upon such assignee: Griffith v. 
 Lovell, 26-226. 
 
 386. Where in a previous action a certain 
 note secured by mortgage which had been 
 issued by a railway company to plaintiff on 
 a debt due from defendant to plaintiff was 
 held to be an extinguishment and payment 
 pro tanto of defendant's claim against the 
 railroad company, held, that this was not an 
 adjudication between plaintiff and defendant 
 of the question whether such note had been 
 accepted by plaintiff in payment or only as 
 collateral security: Fog^eZ v. Wadsworth, 48-28. 
 
 887. Where an action by one partner was 
 dismissed on the ground that he was not a 
 proper party plaintiff, held, that this judg- 
 ment would not bar an action in the firm 
 name on the same indebtedness, although 
 the partner first bringing suit was entitled 
 to the entire proceeds of the recovery : White 
 V. Savery, 50-515. 
 
 888. The dissolution of an injunction held 
 not to be an adjudication, under the facts of 
 a particular case, of the issues in a subsequent 
 case concerning the same subject-matter, 
 but between different parties : Barr v. Pat- 
 rick, 53-704. 
 
 889. An adjudication in an action for 
 taxes by a municipal corporation against a 
 railway company, which was procured by a 
 stockholder of the company in his own name, 
 is not binding in a subsequent litigation as to 
 the validity of such tax between the mu- 
 nicipal corporation and the company. A 
 stockholder of a corporation cannot be con- 
 sidered either as party or privy to an action 
 to which the corporation is a party : Daven- 
 port v. Chicago, R. I. & P. p. Co., 38-633. 
 
 390. An adjudication in an action between 
 a city and a property owner that a square 
 mentioned in the plat of ground upon which 
 lots were sold was not dedicated to the city, 
 heldnot to be an adjudication, as between the 
 grantee of such property owner and the pur- 
 chasers of lots on such plat, that the square 
 was not dedicated to the public: FisJier v. 
 Beard, 40-635. 
 
 391. As between co-defendants: Where, 
 m a suit in equity, plaintiff asserted title as 
 
 against several defendants, and two of them 
 filed separate answers, each claiming title in 
 himself, and title was quieted in one of such 
 defendants, held, that such adjudication was 
 binding as between the two defendants: 
 Devin v. Ottumwa, 53-461. 
 
 392. Judgment binding upon real par- 
 ties in Interest: A former adjudication is 
 binding in a subsequent action between par- 
 ties who were the real but not nominal' par- 
 ties to the former action, when the decision 
 was upon the merits : Campbell v. Ayres, 18- 
 253. 
 
 393. An adjudication upon a defense en- 
 tered in one case in the name of another per- 
 son who could not properly be a party to 
 such suit will not avail in a subsequent suit 
 as an adjudication in favor of the party thus 
 interposing it: Ooodnow v. Plumbe, 64-672; 
 Goodnow V. Litchfield, 68-275. 
 
 394. The objection that the preceding ac- 
 tion was between other parties does not ap- 
 ply in behalf of a party who was really a 
 party to the record : Larum i'. Wilmer, 35-244. 
 
 395. Where one intervenes and becomes 
 defendant by substitution and a party to the 
 action, the record in such proceeding is ad- 
 missible in evidence in a subsequent case in 
 which such intervenor is plaintiff and the 
 plaintiff in the former action is defendant; 
 and the former judgment wUl be conclusive 
 upon the questions adjudicated by it, the par- 
 ties in the latter action being the same in 
 name and interest : Witter v. Fisher, 27-9. 
 
 396. A person interested in the defense to 
 an action, who is notified of its pendency 
 and conducts the defense in the name of 
 the nominal defendant, is entitled to the 
 protection of a judgment recovered therein, 
 although he was not a party to the record : 
 MoNamee v. Moreland, 26-96. 
 
 397. One who, though not a party, defends 
 or prosecutes an action by employing coun- 
 sel, paying costs, and doing those things 
 which are generally done by a party, is bound 
 by a judgment rendered therein : Stoddard v. 
 Thompson, 31-80. 
 
 398. The record in an action by a tians- 
 feree of a note against the maker in which it 
 is determined to be a forgery is not admis- 
 sible in an action against the transferrer to 
 prove such fact unless he had notice of the 
 suit : Snyder v. Reno, 38-339. 
 
986 
 
 JUDGMENTS, II, d. 
 
 Former adjudication ; estoppel. 
 
 399. In order that a judgment may be 
 binding upon a party in interest who is not 
 a party to the record, he must liave notice of 
 the pendency of the suit and be requested to 
 defend it, but such notice may be oral : 
 Conger v. Chilcote, 43-18. 
 
 400. A party cannot sit quietly by and al- 
 low an adjudication to be made between the 
 proper parties, and, after finding it adverse to 
 his interest, demand that the court set aside 
 its judgment and retry the cause in order 
 that he may assert the same claim set up in 
 the prior case : Tredway v. Sioux City <& P. 
 R. Co., 39-663. 
 
 401. In order to render a person not a 
 party liable to respond to a judgment of 
 which he had knowledge, but to which he 
 has not been made a party, there must be a 
 recovery of a valid judgment against a party 
 defendant. A third person cannot become 
 liable on a judgment against a defendant not 
 in existence: District T'p v. Independent 
 Dist., 63-188. 
 
 402. An adjudication in a proceeding for 
 partition of a claim by one of joint heirs for 
 a lien on the property on account of services 
 rendered the ancestor, held to be a bar to a 
 subsequent action against the other joint 
 heirs to recover the amount so claimed and 
 have it made a lien upon their respective par- 
 cels of the property: Janes v. Brovm, 48- 
 568. 
 
 403. A person who is liable to defendant 
 in an action for the amount recovered therein 
 may be bound by a judgment against such 
 party, if he has notice of the action : Good- 
 now V. Litchfield, 63-275. 
 
 404. But the mere fact that a person is 
 interested in a similar question and contrib- 
 utes to the expense of defending the suit 
 will not render a judgment therein binding 
 upon him : Ibid. 
 
 405. The fact that Counsel for one party 
 are permitted to be heard in another action 
 involving a question of interest to both par- 
 ties will not render the adjudication binding 
 upon the person thus represented by counsel 
 who is not a party to the action : Goodnow 
 V. Stryker, 63-221. 
 
 40(>. Identity of parties: It is not true in 
 all cases that in order to plead a former 
 adjudication in bar of a subsequent suit, it 
 must be shown that both or all the parties are 
 
 identical in the two suits: Davis v. Milbum, 
 4-346. 
 
 407. Therefore, held, that a former action 
 upon an attachment bond against the princi- 
 pal and sureties on the bond was a bar to an 
 action against the principal for damages 
 covered by the bond : Ibid. 
 
 408. Parties in pririty : A purchaser from 
 a party who has been successful in an action 
 may rely upon the adjudication therein as a 
 bar in a subsequent action against him by 
 the plaintiff in the former action or his privies 
 with reference to the same subject-matter: 
 Woodin V. Clemens, 33-380. 
 
 409. The grantee being privy in estate 
 with his grantor is estopped from again liti- 
 gating the validity of a claim against the 
 property which has been adjudged valid as 
 against the grantor before the conveyance 
 to the grantee: Hackworth v. Zollars, 30- 
 433 ; Gray v. Coan, 40-337 ; Gushing v. Ed- 
 wards, 68-145. 
 
 410. A vendee in possession under con- 
 tract of purchase is not to be regarded as a 
 tenant and is not bound by a judgment 
 against his vendor in an action brought sub- 
 sequently to his purchase to which he is not 
 made a party: Montgomery v. Severson, 
 64-326. 
 
 411. An adjudication in respect to real 
 property is not binding upon the grantee by 
 conveyance executed before the suit in which 
 the adjudication is rendered was commenced, 
 if the grantee in such conveyance is not a 
 party to the suit : Prouty v. Tollman, 65-354. 
 
 412. A judgment of eviction against one 
 who claims possession under an agreement 
 for a lease made with plaintiff's grantor will 
 be conclusive upon the right of ±he foimer 
 in an action by him against his lessor, the 
 grantor of plaintiff in the first action : Sobey 
 V. Beiler, 28-323. 
 
 413. The fact that the wife of a party to 
 the former action is made party to a new ac- 
 tion wiU not prevent the judgment in the 
 former action being conclusive against her, 
 if she claims her right in the property 
 through her husband, who was a party in the 
 former action : Campbell v. Ayres, 18-252. 
 
 414. A mere assignee of a claim is bound 
 by the final adjudication thereof had as 
 against his assignor before the assignment: 
 Goodenow v. lAtchfield, 59-326. 
 
JUDGMENTS, II, d, e. 
 
 987 
 
 Former adjudication; estoppel. — Merger. 
 
 415. Parties not In privity: An action of 
 right against the second husband of a woman 
 ■who, with the heii'S of her previous husband, 
 is in possession of the estate of her deceased 
 husband, will not be binding upon such 
 widow and heirs: Hamilton v. Wright, 30- 
 480. 
 
 416. A judgment operates as an estoppel 
 in a subsequent action only when the subse- 
 quent litigation is between substantially the 
 same parties or their privies. The term 
 privity in this connection means mutual and 
 successive relationship to the same rights of 
 property : McDonald v. Oregory, 41-513. 
 
 417. An assignor is not in privity with his 
 assignee in such sense as to be bound by an 
 adjudication affecting the latter : Ibid. 
 
 418. An adjudication in an action by one 
 assignee of the title to land against a third 
 person claiming title, in which such assignee 
 asserts tlie right to recover taxes paid, is not 
 binding in an action by another assignee of 
 the same assignor, with reference to other 
 taxes, even though the assignor had notice 
 of the first suit. The results of the first suit 
 would be binding on the assignor and his 
 subsequent assignee as to the taxes in dispute, 
 but would not be a prior adjudication as to 
 the other taxes in the same situation, but 
 not in suit in such action: Ooodnow v. 
 Stryker, 62-221 ; Ooodnow v. Wells, 67-654. 
 
 419. Judg'meiit against county binds citi- 
 zen: A judgment against a county for the 
 collection of a tax voted in aid of a railroad 
 
 , concludes a citizen of the county though he 
 was not individually a party to the judg- 
 ment. The county is in such case to be con- 
 sidered as agent of the citizen, and a judg- 
 ment against it binds the citizen as to aiiy 
 defense which he held and failed to set up : 
 Clark V. Wolf, 39-197. 
 
 420. Therefore, held, also, that the judg- 
 ment in a proceeding in which the board of 
 supervisors and the county treasurer attacked 
 the validity of a railroad aid tax was conclu- 
 sive upon a tax-payer of the county : Lyman 
 V. Faris, 53-498. 
 
 421. Pleadings; evideiice: The defense of 
 former adjudication can be taken advantage 
 ■of under the general issue as well as by a 
 special plea in bar under the former pro- 
 cedure; George V. Gillespie, IG. Gr., 431. 
 
 422. A defendant pleading former adjudi- 
 
 cation should make profert of an exemplifi- 
 cation or transcript of the record in the case 
 in which the former judgment was rendered. 
 A copy of the judgment alone is not suffi- 
 cient in such case. It should be accompanied 
 with a copy of record of the proceedings: 
 Campbell v. Ayres, 6-339. 
 
 423. A party relying upon a former ad- 
 judication as a bar must set it up in his 
 pleadings, or he cannot avail himself of it : 
 Cooley V. Brayton, 16-10; Van Orman v. 
 Spafford, 16-186. 
 
 424. A former adjudication may be intro- 
 duced in evidence in an action to recover real 
 property although not pleaded as an estoppel : 
 Lar'um v. Wilmer, 35-344. 
 
 425. Whether fraudulent: Where it is 
 sought to interpose the plea of a former ad- 
 judication, the fact that the former judg- 
 ment was recovered by fraud may be shown 
 to overcome its effect: Whetstone v. Whet- 
 stone, 31-376. 
 
 426. The question is for the jury whether 
 or not a judgment by confession pleaded as a 
 defense was in fact fraudulent : Wilhelmi v. 
 Leonard, 13-330. 
 
 427. Effect; settlement: Where an action 
 is dismissed in accordance with stipulations 
 of the parties, the terms of such stipulation 
 constitute the adjudication and the matters 
 within its scope are alone to be deemed de- 
 termined : Smith v. Swan, 69-413. 
 
 e. Merger. 
 
 428. A judgment is a merger of any equi- 
 ties which attach to the debt. Therefore, 
 held, that the consideration of a debt could 
 not affect the rights of the judgment creditor 
 in a proceeding for mandamus to aid in col- 
 lecting the judgment : Coy v. City Council of 
 Lyons, 17-1. 
 
 429. Before the liability of co-obligors will 
 become merged or extinguished by a judg- 
 ment against one of them, there must be such 
 a judgment as would give tlie obligee a fuU 
 and complete remedy, and that could be en- 
 forced against the defendant, and which he 
 could plead in bar to another suit on the 
 same cause of action: Beall v. West, 13-61. 
 
 430. A judgment upon a former judgment, 
 not by way of revivor, but in an action of 
 debt, merges the prior judgment : Denegre v. 
 Haun, 13-340. 
 
988 
 
 JUDGMENTS, HI. 
 
 Assignment; subrogation. 
 
 431. Where, on a proceeding by scire 
 facias, a new judgment was rendered for the 
 ■whole amount due on the former judgment 
 and execution issued thereon, held, that such 
 new judgment merged the former one : Ber- 
 tram V. Waterman, 18-539. 
 
 432. Where a judgment was transferred 
 to one who had acquired the property on 
 ■which it was a lien, Jidd that, it not appear- 
 ing to have been his intention or to his inter- 
 est that the lien be preserved, tlie judgment 
 would be deemed merged: Shimerv. Ham- 
 mond, 51-401. 
 
 433. A new judgment in the supreme 
 court, on appeal on the supersedeas bond, 
 merges the former judgment : Swift v. Con- 
 boy, 12-444. 
 
 III. Assignment; subeogation. 
 
 434. Assiguiiient: A judgment may be 
 assigned and actions, thereon maintained by 
 the assignee in his own name, subject, of 
 course, to any defenses which the judgment 
 debtor may have against it: Edmonds v. 
 Montgomery, 1-143; Charles v. Haskins, 11- 
 339. 
 
 435. The assignment of the record of a 
 judgment, duly authenticated, is prima facie 
 evidence of the fact of assignment: Walker 
 V. Sleight, 30-310. 
 
 436. The assignment of a judgment in favor 
 of a bank, signed by persons designating 
 themselves as president and secretary, held 
 not sufficient to show a valid assignment in 
 the absence of any other evidence that they 
 were such officers : Klemme v. MoLay, 68-158. 
 
 437. A judgment is a mere chose in action, 
 and in a suit brought thereon by an assignee 
 the consideration for its assignment is imma- 
 terial : Cottle V. Cole, 30-481. 
 
 438. Whei-e a judgment is assigned for a 
 certain portion of the face thereof, the 
 amount is to be computed on the largest 
 amount for which the judgment is rendered, 
 not including interest accrued thereon: Os- 
 good V. Bringolf, 33-265. 
 
 439. One who assigns a judgment which, 
 by mistake, has been rendered for a larger 
 amount than actually due, is liable to the as- 
 signee for the amount in which by mistake 
 the judgment on its face exceeds the amount 
 for which it should have been rendered, even 
 
 though the assignment is expressly made 
 without recourse. However, if the assign- 
 ment is simply of the assignor's right and in- 
 terest, he will not be liable : Miller v. Dugan, 
 36-433. 
 
 440. Subject to equities: The assignee of 
 a judgment is in no better position than his 
 assignor: Preston v. Turner, 36-671. 
 
 441. The assignee succeeds only to the 
 rights of the assignor and takes subject to 
 equities, although purchasing without knowl- 
 edge of any defense and after time for appeal 
 and for vacating the judgment has passed : 
 District T'p v. White, 42-608. 
 
 442. The assignee of a judgment having 
 knowledge of the insolvency of the assignor 
 takes the same subject to the right of the 
 judgment debtor to offset a mutual judgment 
 held by him against such assignor : Hurst v. 
 Sheets, 14-322. 
 
 443. An assignment' of a judgment con- 
 veys merely the rights which the assignor 
 then possesses, but it does not necessarily 
 draw after it all equities of an independent 
 nature : Davis v. Milburn, 3-168. 
 
 444. The mle that the assignee of a judg- 
 ment takes it subject to all the equities which 
 could be asserted against it in the hands of 
 the assignor, held, by two members of the 
 court, the other two expressing no opinion, 
 not to apply when the equity is asserted by a 
 stranger to the judgment who claims ad- 
 versely to both parties, the rule being appli- 
 cable that equities between the parties to such 
 judgment arising from other and independ- 
 ent transactions are not available against the 
 judgment in the hands of the assignee : Isett 
 V. Lucas, 17-503. 
 
 445. Where S. agreed to sell to H. a judg- 
 ment against plaintiff, and H. agreed with 
 plaintiff to satisfy the same upon the per- 
 formance of certain services which were 
 accordingly rendered, and H. afterwards 
 transferred his interest in the judgment to a 
 bank which paid to S. the balance due for 
 the judgment, under the agreement between 
 him and H., and had no notice as to the 
 agreement between plaintiff and H. for the 
 satisfaction of the judgment, held, that 
 the bank was not bound by the equities be- 
 tween H. and plaintiff, and the latter could 
 not compel the cancellation of the judgment: 
 Hale V. First Nat. Bank, 50-643. 
 
JUDGMENTS, III, IV. 
 
 989 
 
 Assignment; subrogation. — Set-off and discharge. 
 
 446. The assignment of a judgment by the 
 administrators of an estate to the attorney 
 who acted in recovering the same in compen- 
 sation for his services, held valid, irrespective 
 of whether the contract under which the 
 services of the attoi'ney were originally ren- 
 dered was champertous or not. Also held 
 that notice to the attorney of the judg- 
 ment defendant that the assignee of the 
 judgment had some interest in it was suffi- 
 cient to put defendant upon inquu-y, and 
 prevent a settlement with the administra- 
 tor such as to defeat the interest of as- 
 signee: Ross V. Chicago, R. I. & P. R. Co., 
 55-691. 
 
 As to Assignments is general, see that title, 
 §§ 3, 39, 49. 
 
 447. Assignment to party jointly lia- 
 ble: Where a party liable for the payment 
 of a portion of a judgment paid the entire 
 amount thereof and took an assignment, 
 Md, that the judgment was thereby dis- 
 charged and a liability created in favor of 
 the assignee against those for whose benefit 
 the money was advanced: Myers v. Farmer, 
 53-20. 
 
 And see infra, §§ 467-469. 
 
 448. Subrogation: Where a surety pays 
 off a judgment, the judgment is considered 
 discharged and can no longer be enforced at 
 law, but in equity the, lien will be regarded 
 as surviving for his protection, and by an ac- 
 tion in equity he may avail himself of the 
 lien. But the action to recover from the 
 principal the amount paid is based upon an 
 implied promise and is barred in five years 
 from the time of payment : Johnston v. Bel- 
 den, 49-301. 
 
 449. The statements of the petition in a 
 particular case held sufficient to entitle 
 plaintiff, as surety, having paid the claim, to 
 subrogation to the rights of the judgment 
 creditor against the estate of a deceased de- 
 fendant, whether such deceased defendant 
 was the principal debtor or a co-surety 
 with plaintiff: HoUingsworth v. Pearson, 
 53-53. 
 
 450. The purchaser of a judgment in fore- 
 closure becomes subrogated to the rights of 
 the original holder, and may have the prem- 
 ises, upon which the judgment is a lien, 
 sold thereunder: Shimer v. Hammond, 51- 
 401. 
 
 IV. Set-off xsd dischaegb. 
 
 451. Setting off mutual judgments: 
 
 Under statutory provisions (Code, g 3097) for 
 setting off mutual judgments, the executions 
 on which are in the hands of the same of- 
 ficer, a judgment against two pei'sons, jointly, 
 may be set off against a judgment in favor of 
 one of them against the creditor in such 
 joint judgment: Ballinger v. Tarbell, 16- 
 491. 
 
 452. Judgments cannot be set off, the one 
 against the other, unless they are strictly 
 mutual and are still in fact the property of 
 the respective parties thereto : Bell v. Perry, 
 43-368. 
 
 453. Where the judgment has been fraud- 
 ulently assigned for the purpose of prevent- 
 ing the set-off, such set-off may be obtained 
 in an action in equity : Hurst v. Sheets, 14- 
 332. 
 
 454. But where the assignment was ver- 
 bally made, before the recovery of the judg- 
 ment sought to be set off, the assignment not 
 appearing to be fraudulent, a set-off was 
 denied : Gray v. McCallister, 50-497. 
 
 456. Where judgment was rendered 
 against one party for costs, and subsequently 
 in a second action the same party recovered 
 a judgment for debt against the other party,. 
 held, that the judgment for costs should be 
 set off against the judgment for debt not- 
 withstanding the assignment of the judg- 
 naent for debt to the attorney in satisfaction 
 of his claim for services in the action for 
 which he had tiled a claim for a lien : Tif- 
 fany V. Stewart, 60-207. 
 
 456. In an attachment suit, where the de- 
 fendant sued, by way of counter-claim, on 
 an attachment bond executed by plaintiff to 
 others, held, that he might have judgment 
 thereon set off against a judgment in favor 
 of such plaintiff : Branch of State Bank v. 
 Morris, 18-136. 
 
 457. The statutory provision as to setting 
 off mutual judgments is not defeated by 
 an attorney's lien : National Bank v. Eyre, 
 3 McCrary, 175. 
 
 458. Where judgments are originally mut- 
 ual, but have ceased to be mutual by reason 
 of the assignment of one of them, they 
 cannot be set off, the one against the other : 
 Gallaher v. Pendleton, 55-148. 
 
990 
 
 JUDGMENTS, IV. 
 
 Set-o£E and discharge. 
 
 459. Part p.ayinent in full satisfaction: 
 
 An acceptance of a sum less than the amount 
 of the judgment in full payment, where the 
 judgment is a lien upon property and the 
 dehtor is insohrent, may amount to a fuU 
 Isatisf action : Ruddleedin v. Smith, 36-669. 
 
 4G0. Satisfiietioii on motion: In some 
 cases the question whether a judgment has 
 been satisfied or not may be raised on motion, 
 while in others it may be necessary to go into 
 equity to obtain proper relief: Traer v, 
 Lytle, 30-301. 
 
 461. An agreement to satisfy or dischai-ge 
 a judgment entered into before it is obtained 
 should be supported, wTiere there is no de- 
 sign to defraud others thereby and where it 
 has no such effect : Church v. Simpson, 35- 
 408. 
 
 462. An agreement which provides for the 
 satisfaction of a judgment, and for certain 
 things to be done in case property has been 
 sold thereon, is no defense to the cause of ac- 
 tion upon which the judgment was rendered : 
 Morton v. Coffin, 29-335. 
 
 Collection and satisfaction by attorney, 
 see Attorneys, § 5. 
 
 Satisfaction by levy: That levy upon suf- 
 ficient property amounts to prima facie satis- 
 faction of the judgment in case of personal 
 property, but not of real property, see Ex- 
 ecutions, §§ 97-101. 
 
 463. Satisfaction procured by fraud: In 
 an action in one court upon a judgment of 
 another, it may be urged by way of incidental 
 relief that the satisfaction of the judgment 
 entered in the latter be set aside as procured 
 by fraud : Darrow v. Darrow, 43-411. 
 
 464. In a particular case, held, that the 
 evidence showed that a satisfaction of a 
 judgment was procured upon a forged re- 
 ceipt, and that the same should therefore be 
 set aside : Milligan v. Bowman, 42-414. 
 
 465. Evidence considered sufficient in a 
 particular case to show the satisfaction of a 
 judgment : Fuller v. Lendrum, 58-353. 
 
 Canceling satisfaction upon setting aside 
 a sale made under the judgment, see Execu- 
 tions, §§ 805-307. 
 
 466. Garnishment; real party in in- 
 terest: "Where a judgment is taken nom- 
 inally in the name of one party, but really 
 for the benefit of another, a judgment in 
 garnishment at the suit of a creditor of the 
 
 real party in interest will bar proceedings on 
 the judgment by the nominal party : Matter 
 V. Phillips, 53-233. 
 
 467. Payment by one joint defendant: The 
 payment of a judgment by one of several 
 defendants operates as an extinguishment 
 thereof, and this is so although such pay- 
 ment be made by one who is in fact a mere 
 surety: Bones v. Ailcen, 35-534; Drefahl v. 
 Tuttle, 43-177. 
 
 468. One of the judgment debtors cannot 
 take an assignment thereof and issue execu- 
 tion thereon as against other defendants 
 therein : Drefahl v. Tuttle, 42-177. 
 
 469. But the fact that a person is surety on 
 a bond for an injunction to stay the enforce- 
 ment of a judgment does not prevent him 
 from purchasing such judgment and enforc- 
 ing the lien thereof: Davis v. Wilson, 53-187. 
 
 470. Release of joint wrong-doer: If 
 judgment has been rendered against one joint 
 wrong-doer, and an action is still pending 
 against another on the same cause of action, 
 the settlement with or release given to the 
 latter in consideration for the payment of the 
 costs merely, and with no intention of satis- 
 fying the judgment, does not amount to satis- 
 faction of or payment pro tanto on the judg- 
 ment against the former: Bell v. Perry, 43- 
 368. 
 
 471. Cancellation: In the absence of stat- 
 utory authority, the court has no jurisdiction 
 to cancel a judgment, and the right to cancel 
 given by statute (Code, § 3867) arises only 
 out of matters subsequent to the judgment: 
 Brett V. Myers, 65-274. 
 
 472. Merger: Where defendant, while 
 holding a certificate of purchase of a portion 
 of certain premises at judicial sale, bought a 
 judgment on foreclosure which was a lien on 
 the entire premises, and afterwards received 
 a sheriff's deed under his first purchase, held, 
 that in the absence of a showing that it was 
 the intention or to the interest of defendant 
 that his two interests should merge, a merger 
 would not be inferred: Shimerv. Hammond, 
 51-401. 
 
 473. Satisfaction set aside: A satisfaction 
 of a judgment rendered against one of two 
 joint debtors, which satisfaction is afterwards 
 set aside for fraud, will not defeat an action 
 against the other joint debtor, it not appear- 
 ing that the other debtor had changed his 
 
JUDGMENTS, V. 
 
 991 
 
 Action upon ; revivor ; scire facias. 
 
 condition in reliance upon the satisfaction of 
 the judgment against the joint debtor : Gil- 
 man V. Foote, 23-560. 
 
 V. Action upon judgment ; eevivor ; 
 
 SOIEE FACIAS. 
 
 474. Scire facias: At common law, after 
 the expiration of a year and a day from the 
 rendition of judgment without the issuance 
 of a writ of execution, it was presumed that 
 the judgment was satisfied or the execution 
 released, and to overcome this presumption 
 the party was compelled to resort to his ac- 
 tion of debt on the judgment or sue out a 
 writ of scire facias to show cause why exe- 
 cution should not issue. This writ was a 
 mere continuation of the proceeding, and 
 the judgment when revived was of the same 
 force and effect and liable to be proceeded on 
 in the same manner as if the time within 
 which execution might legally have been 
 issued had not been suffered to elapse : Von 
 Puhl V. Rucker, 6-187. 
 
 475. Such a revivor was binding against 
 innocent purchasers subsequent to the judg- 
 ment: Ibid. 
 
 476. The writ of scire facias being founded 
 upon some record, as, for instance, upon a 
 judgment, such record or judgment upon its 
 face imports absolute verity and cannot be 
 impeached by any matter going behiud it, 
 but matters arising subsequently to the 
 rendition of the judgment may be pleaded: 
 Vredeiiburgh v. Snyder, 6-39. 
 
 477. Merger: Where plaintiff brought ac- 
 tion to revive a judgment and asked for a 
 writ of scire facias and judgment for the 
 amount due on the original judgment, and 
 the court rendered judgment for the total 
 amount then due under the original judg- 
 ment as in an action of debt, and execution 
 issued under the latter judgment, held, that 
 such judgment was a merger of the former 
 judgment and the lien only commenced at 
 the date of the new judgment : Bertram v. 
 Waterman, 18-539. 
 
 478. Revivor: A judgment against a dece- 
 dent may be revived against his administra- 
 tor: Carries v. Crandall, 10-377. 
 
 479. A creditor cannot bring an action to 
 revive, as against the heirs, a judgment ren- 
 dered against decedent in his life-time. The 
 
 only method provided for the enforcement of 
 such a judgment is by proceedings against 
 decedent's estate: Bridgman v. Miller, 50- 
 393. 
 
 480. In case of judgment in attachment 
 proceedings, a special execution in pursuance 
 thereof cannot issue after the death of the 
 judgment debtor: Welch v, Battern, 47-147. 
 
 481. Wliere the plaintiff, in a suit for the 
 revivor of a judgment, has failed to perform 
 that which was the consideration whereon 
 the judgment was based, such fact may be 
 pleaded as a defense : Thompson v. Hurley, 
 19-331. 
 
 482. Action on judgment: In the absence 
 of any statutory provision to the contrary, 
 an action may be maintained on a domestic 
 judgment which is in fuU force and upon 
 which execution may issue: Simpson v. 
 Cochran, 23-81; Thomson v. Lee County, 
 33-306. 
 
 483. Although a former statute gave a 
 remedy by scire facias, held, that this did 
 not in itself take away the right of action on 
 the judgment :" Haven v. Baldwin, 5-508. 
 
 484. Under the statute (Code, § 2531) pro- 
 viding that no action shall be brought on any 
 judgment against a defendant therein, ren- 
 dered in any court of record of the state, 
 within fifteen years after the rendition 
 thereof, without leave of court, on good 
 cause shown, it is a gi'ound of demurrer to a 
 petition on such a judgment that the ac- 
 tion appears to be brought within fifteen 
 years without leave of court : Watts v. Ev- 
 erett, 47-369. 
 
 485. This statutory provision affects the 
 remedy and applies to judgments rendered 
 before as well as after its passage : Ibid. 
 
 486. Where the record of the judgment is 
 lost or destroyed, suit thereon, even if proper, 
 is not the only method for supplying such 
 record : Gammon v. Knudson, 46-455. 
 
 487. An action to foreclose a mortgage 
 given to secure a note which is already 
 reduced to judgment is not prohibited by 
 the statutory provision above referred to: 
 Matthews v. Davis, 61-325. 
 
 488. The statutory provision above re- 
 ferred to has no application to suits in the 
 federal courts. A person who, under the con- 
 stitution and laws of the United States, has 
 the right to bring his action in the federal 
 
992 
 
 JUDGMENTS, V, VI, a. 
 
 Action upon; revivor; scire facias. — Lien. 
 
 court upon a judgment, cannot be compelled 
 fii-st to obtain leave of a state court to do so: 
 Phelps V. O'Brien County, 2 Dillon, 518. 
 
 489. Defense to action on judgment: The 
 plea of nul tiel record raises the existence of 
 the record and is only triable by the court. 
 Under such a plea fraud in the rendition of 
 the judgment can be inquired into, but un- 
 der the plea of nil debet the defendant may 
 show that the court had no jurisdiction or 
 that the judgment was procured by fraud: 
 Hindman v. Mackall, 3 G. Gr., 170. 
 
 49!). To constitute a defense to an action 
 on a judgment, the facts pleaded should be 
 such as would justify a court of equity in 
 perpetually enjoining the judgment or in. 
 decreeing its cancellation, and an allegation 
 that it was obtained by false testimony at 
 the trial, the defendant being in court at the 
 time, cannot be set up as a defense : Cottle v. 
 Cole, 20-481. 
 
 491. In an action upon a judgment ren- 
 dered by a justice of the peace of this state, 
 want of notice may be shown by extrinsic 
 evidence, contradictory to the averments of 
 the judgment reciting due notice : Salladay 
 V. Bainhill, 29-555. 
 
 Further as to showing want of jurisdiction 
 by way of defense in an action on a judg- 
 ment, see Jurisdiction, §§ 153-165. 
 
 492. Objection to the certificate of the 
 transcript of the judgment upon which 
 the action is brought cannot be presented by 
 demurrer. It should be taken on the trial 
 ■when the transcript is offered in evidence: 
 McOlassen v. Wright, 10-591. 
 
 493. Action on foreigrn judgment ; de- 
 fenses: In an action in this state upon a 
 judgment rendered in another state, any 
 facts which would either constitute a good 
 defense to such judgment or would authorize 
 its cancellation will be a good defense here : 
 Sogers V. Owinn, 21-58. 
 
 494. That defendant, in the action in which 
 the judgment sued on was recovered, had 
 filed his answer and afterwards left the state, 
 relying upon plaintiff's assurance that the 
 cause would be dismissed, notwithstanding 
 which judgment was taken at a subsequent 
 term without further notice to defendant, 
 held a good defense, at least in equity, to an 
 action on the foreign judgment : Ihid. 
 
 495. The fact that by the statutes of the 
 
 state where the judgment was rendered it 
 had become dormant, held not sufficient to 
 defeat an action thereon in this state: David 
 V. Porter, 51-254. 
 
 496. Pleading and evidence: Plaintiff in 
 an action on a foreign judgment need only 
 set out so much of the judgment as to show 
 that the court had jurisdiction of the per- 
 son and subject-matter, and that the judg- 
 ment was rendered. It may become neces- 
 sary to introduce the judgment record in 
 evidence, but it cannot be required that it be 
 set out in the pleadings : Johnson v. Butler, 
 2-535. 
 
 497. Where the court rendering the judg- 
 ment has but a limited and special jurisdic- 
 tion, as that of a justice of the peace, the 
 statute of the state in which the judgment is 
 rendered must be introduced to show a£Brm- 
 atively that the justice had jurisdiction in 
 such case. The courts of one state will not 
 take judicial notice of the statutes of another : 
 Oay V. Lloyd, 1 G. Gr., 78. 
 
 498. Judgment without service upon or 
 jurisdiction over defendant, rendered upon a 
 warrant of attorney, is not valid in this state, 
 and will not be presumed valid if rendered 
 in another state without evidence that such 
 judgment is valid under and according to 
 the laws, practice and usages of that state: 
 Crafts V. Clark, 31-77. 
 
 As to how a foreign judgment is to be 
 shown in EVIDENCE, see that title, §§ 541-547. 
 
 Befense of want of jurisdiction: See Ju- 
 risdiction, g§ 153-162. 
 
 499. Judgments under foreign statutes: 
 While statutes prescribing proceedings to 
 compel the fathers of bastard children to 
 support them are merely local police regula- 
 tions enforceable alone by the state enacting 
 them, yet where the local jurisdiction has 
 attached and the courts of the state have 
 taken cognizance of the case and rendered 
 judgment for the penalty provided in such 
 statutes, the judgment is entitled to full faith 
 and credit in every other state : State of In- 
 diana V. Helmer, 21-370. 
 
 VI. Lien. 
 a. . Coirwnencement and continuance. 
 
 500. When lieu attaches: A verdict with- 
 out the rendition of judgment thereon does 
 
JUDGMENTS, VI, a. 
 
 993 
 
 Lien ; commencement and continuance. 
 
 not give plaintiff any interest in the property 
 of defendant in advance of the rendition of 
 judgment: Miller v. Wolf, 63-233. 
 
 601. A. nunc pro tunc judgment will not 
 become a Hen upon property prior to its 
 actual rendition so as to bind third persons : 
 Ibid. 
 
 502. As between the judgment debtor and 
 a purchaser under execution on such judg- 
 ment, the purchaser may show by the plead- 
 ings or record in the action that the judgment 
 attached as a hen on the property purchased 
 by him, though from the face of the judg- 
 ment that fact does not appear: Marlchamv. 
 Buckingham, 21-494. 
 
 503. So held where individual property was 
 sold under judgment nominally against a 
 partnership: Ibid. 
 
 50i. A judgment on a debt contracted 
 prior to the time that property assumes the 
 homestead character, although rendered after 
 that time, is a lien on such property, cer- 
 tainly as to persons chargeable with notice of 
 the character of the debt ; and if one claims 
 under a homestead right, he is bound to as- 
 certain when such i-ight began: Hale v. 
 Heaslip, 16-451. 
 
 505. As between judgment creditors and 
 third persons it is not competent for the 
 judgment creditor to extend the lien of his 
 judgment by proof aliunde, but as betv>feen 
 the parties to the judgment and their heirs 
 Buch proof is admissible: Delavan v. Pratt, 
 19-429. 
 
 506. Under prior statutory provisions, the 
 lien of a j udgment on a note secured by mort- 
 gage attached as between the parties from 
 the date of the recording of the mortgage, 
 but as to third persons the lien only at- 
 tached from the date of the rendition of the 
 judgment unless the property was described 
 in the judgment and a special execution 
 directed: State v. Lake, 17-215. 
 
 507. In such case the mortgage lien con- 
 tinues until the debt is satisfied and is not 
 merged in the jtidgment on the note secured: 
 Ibid. 
 
 Judgment by coul'ession, lien of, see 
 supra, § 93. 
 Record ; index, etc.: See svpra, I, d. 
 
 508. Transcript: Under the statutory pro- 
 vision (Code, g§ 2884, 2835) for filing a tran- 
 ecript of a judgment in another county from 
 
 Vol. I— 63 
 
 that where rendered for the purpose of mak- 
 ing it a lien upon real property within the 
 county where filed, the clerk of the court 
 where the transcript is filed has no power to 
 issue an execution : Seaton v. Hamilton, 10- 
 394. 
 
 As to the method of enforcing judgments 
 against lands in another county, see Execu- 
 tions, gS 10-12. 
 
 As to transcript of judgments of Justices 
 OP THE Peace, see that title, §§ 141-143. 
 
 500. Judgments in federal courts: As to 
 whether the judgments of federal courts are 
 liens in other counties than those where 
 rendered, until a transcript is filed as requu'ed 
 by the state statute, quaire: Lathrop v. 
 Brown, 23-40. 
 
 510. How long lien continnos: The lien 
 of a judgment expires in ten years, and can- 
 not be revived or continued after that time 
 by any proceeding on the judgment : Denegre 
 V. Haun, 13-340. 
 
 511. But although the lien ceases, the judg- 
 ment itself is not barred until the expiration 
 of twenty years, and during that time an 
 execution may be issued and a sale had there- 
 under ; but an execution issued after the ex- 
 piration of the ten years only operates as a 
 lien from the time of its levy : Stahl v. Roost, 
 34-475. 
 
 512. In case of a mortgage foreclosure, 
 the lien of the mortgage is not merged ' in 
 that of the judgment, and continues after 
 the judgment lien ceases, and until the judg- 
 ment itself is barred: Ibid.; Hendershott v. 
 Ping, 24-134; Shearer v. Mills. 35-499. 
 
 And see Mortgages, §§ 155-174. 
 
 513. If, on appeal from the judgment, it 
 is affirmed and a, procedendo issues, the lien 
 of the judgment continues; but if a new 
 judgment is rendered in the supreme court 
 upon the appeal bond, the former judgment 
 is merged therein, and its lien is lost : Swift 
 V. Conboy, 12-444. 
 
 614. The lien of a judgment will not be 
 destroyed by a sale of the property under a 
 judgment subsequently rendered: Lathrop 
 V. Brawn, 23-40. 
 
 515. A judgment upon the former judg- 
 ment, not in way of revivor, but as upon a 
 debt, merges the old judgment in the new, 
 and the lien of the old judgment ceases to 
 exist : Denegre v. Haun, 13-240. 
 
994 
 
 JUDGMENTS, VI, b. 
 
 Lien ; upon what property. 
 
 516. Release of lien: In order to establish 
 a parol release of real estate from a judg- 
 ment lien the proof must be clear, satisfac- 
 tory and conclusive : Dalpy v. Cronkhite, 32- 
 233. 
 
 •517. After death of judgment debtor: A 
 judgment may be enforced against property 
 upon which it is a lien, after the death of a 
 debtor, without filing it as a claim against 
 the estate; but this must be done while the 
 judgment lien exists : Baldwin v. Tattle, 23- 
 66; Davis V. Shawhan, 34-91; Boyd v. Col- 
 lins, 70 . 
 
 518. Effect of bankruptcy: A valid, sub- 
 sisting judgment lien in a, state court exist- 
 ing at the time of bankruptcy of defendant 
 cannot be assailed in the bankrupt court, and 
 a decree in the state court subsequent to the 
 bankruptcy, subrogating a sui-ety to the bene- 
 fit of such lien on account of payment of the 
 judgment made before bankruptcy, wiU not 
 be Toid, although the assignee in bankruptcy 
 is not made a party to the action : Perry v. 
 Miller, 54-377. 
 
 b. Upon what property. 
 
 519. Origin of judgment liens: Before 
 the statute of Westminster 3, judgments 
 could not be collected by sale of land, but by 
 that statute creating the writ of elegit, al- 
 though no lien was created, yet lands were 
 considered as subject to judgment and the 
 courts Inferred a lien from the power to take 
 lands on execution: Woods v. Mains, 1 Gr. 
 Gr., 275. 
 
 520. Under a statute of the temtory of 
 Iowa providing that judgments in the courts 
 of the territory should be liens upon the real 
 estate of judgment defendants, held, that 
 judgments then existing, as well as those 
 thereafter to be rendered, were given that 
 effect: Ibid. 
 
 521. After-acquired lU'operty: Further, 
 held, that under that act such judgments did 
 not become lions upon after-acquired prop- 
 erty: Ibid.; Harrington V. Sharp, 1 G. Gr., 
 131. (But see Code, g 3882.) 
 
 522. The raortsragee's interest being 
 . deemed personal property, a judgment 
 
 against the mortgagefe does not become a 
 . lien upon the, real property covered by the 
 morfgagej Scott v. Mewhirter, 49-487. 
 
 523. Claim for tort: The holder of a judg- 
 ment against one having a claim for a tort 
 has no equities as against such claim whicli 
 give him a prior right thereto over a creditor 
 to whom the claim may be assigned : Gray v. 
 MoCallister, 50-497. 
 
 524. A leasehold interest is such interest 
 in real estate as is subject to the lien of a 
 judgment: First Nat. Bank v. Bennett, 40- 
 537. 
 
 525. The creditor does not, in such cases, 
 need the aid of a court of equity to enforce 
 his judgment. He can sell the leasehold in- 
 terest upon execution: Sweezy v. Jones, 65- 
 372. 
 
 526. The lien of a judgment attaches to 
 the interest of a tenant in real propei'ty 
 leased by him and a building erected thereon, 
 unless the right to remove such building at 
 the expiration of the tenancy appears, and 
 the lien of the judgment will be prior to that 
 of a chattel mortgagee of such building: 
 
 Hayden v. Ooppinger, 67-106. 
 
 527. It appears that the same rule would 
 apply even where the right of the tenant 
 to remove the building at the expiration cif 
 the lease is shown : Ibid. 
 
 528. License: A judgment lien will not 
 attach to a mere license or privilege to use 
 real property for a particular purpose, whicli 
 may be terminated at pleasure by the party 
 having such privilege : Melhop v. Meinhart, 
 70 . 
 
 529. A building erected under a license 
 upon the land of another is a chattel and is 
 not subject to the lien of a judgment: Wal- 
 ton V. Wray, 54-531. 
 
 530. A vendor's lien is not such an inter- 
 est in real estate, without a judgment against 
 the purchaser, that it can be enforced against 
 such real estate. Equitable proceedings, or 
 proceedings by garnishment, must be re- 
 sw-ted to for that purpose, and until such 
 proceedings are commenced the purchaser of 
 the real estate may discharge the lien by 
 payment to the vendor : Baldwin v. Thomp- 
 son, 15-504; Woodward V. Dean, 46-499. 
 
 531. Does not attach to fund: Where land 
 subject to a lien is sold, the lien still remains 
 on the land, and does not attach to the fund : 
 Sullivan v. Leckie, 60-836. 
 
 532. Option to purchase: The mere right 
 of an option to purchase real property is not 
 
JUDGMENTS, VI, b. 
 
 995 
 
 Lien ; upon what property. 
 
 a right in tlie property to which a judgment 
 lien can attach : Sweezy v. Jones, 65-272. 
 
 633. A pre-emption right to lands being 
 a right which is temporary in its nature and 
 unknown to the common lg,w is not subject 
 to the lien of a judgment: Harrington v. 
 Sharp, 1 G. Gr., 131. 
 
 534. Naked legal title: A judgment lien 
 does not attach to property, the naked legal 
 title of which passes through the judgment 
 debtor without any interest in such property 
 having vested in him: Atkinson v. Hancock, 
 67-452. 
 
 535. In enforcing a judgment lien, the 
 law looks for the equitable interest in the 
 property. If defendant has no such interest 
 and holds only the legal title, the lien does 
 not attach. If he has such interest, and an- 
 other person holds the legal title, the lien 
 will attach : Mice v. Kelso, 57-115. 
 
 536. Therefore, held, that a judgment would 
 not attach to property already acquired by the 
 judgment defendant which had been mort- 
 gaged by him previous to its acquisition. In 
 such case the prior mortgage would attach 
 to the subsequently acquired title before the 
 attachment of the judgment lien : Ibid. 
 
 537. The lien of a judgment attaches, not 
 to the naked legal title of property, but to 
 the interest which the debtor has therein: 
 Blaney v. Hanks, 14r400; Patterson v. Lin- 
 der, 14-414; Churchill v. Morse, 23-229. 
 
 538. Equitable interests: A judgment be- 
 comes a hen upon any interest in real estate 
 owned by the debtor, whether it be equitable 
 or legal : Blain v. Stewart, 2-378 ; Crosby v. 
 Elkader Lodge, 16-399. 
 
 539. But the unsatisfied portion of a judg- 
 ment does not remain a lien upon the debtor's 
 interest in property which has been sold in 
 partial satisfaction of such judgment : Clay- 
 ton V. Ellis, 50-590. 
 
 And further, see Executions, §§ 421-426. 
 
 540. A judgment is a lien upon any equi- 
 table interest in land in the judgment debtor 
 which may be sold on execution, bxit is sub- 
 ordinate to vendors' liens and homestead 
 rights existing prior to the judgment : Two- 
 good V. Stepliens, 19-405. 
 
 541. A judgment is a lien upon the equi- 
 table interest of the debtor in real estate, and 
 if such equitable interest is of record, it may 
 be sold under execution, and the title thereby 
 
 acquired will prevail as against an equitable 
 action to subject such interest to the payment 
 of another judgment on the same debt: 
 Lippencott v. Wilson, 40-425. 
 
 542. A judgment is enforceable as a lien 
 against an equitable interest in real property : 
 Bartle v. Curtis, 68-202. 
 
 543. As between the parties, it is imma- 
 terial whether the equitable interest appears 
 of record or not: Denegre v. Haun, 13-240; 
 Lathrop v. Brown, 23-40. 
 
 544. A purchiiser at the execution sale of 
 an equitable interest takes only such interest 
 as the debtor actually has in the property. 
 The lien of a judgment on such equitable in- 
 terest will not affect the legal title of a person 
 holding bona fide without notice of such 
 equity : Harrison v. Kramer, 3-548 ; Hultz v. 
 Zollars, 39-589. 
 
 545. A junior judgment CTeditor taking 
 advantage of the proceedings provided by 
 statute (Code, g 3150 et seq.) for subjecting 
 equitable interests to the satisfaction of u. 
 judgment may acquire by reason of his 
 greater diligence a lien upon such property 
 which will be superior to that of a prior judg- 
 ment : Bridgman v. McKissick, 15-260. 
 
 546. A judgment lien upon an equitable 
 interest in real property will not prevail as 
 against subsequent bona fide purchasers with - 
 out notice : StadZer v. Allen, 44-198 ; Farmers' 
 Nat. Bank v. Fletcher, 44-262. 
 
 547. Interest of partnership in real 
 property: A judgment being a lien upon 
 equitable interests in real property is a lien 
 upon land owned by a partnership where the 
 naked legal title is still in the former owner : 
 Lathrop v. Brown, 23-40. 
 
 548. Whether a judgment in an action 
 brought against a paitnership in their firm 
 name alone is a lien only-upon the partner- 
 ship property, quaere: Markham v. Bucking- 
 ham, 21-494. 
 
 549. A judgment against a firm is not a 
 lien upon real estate equitably belonging to 
 it, but held in the name of one partner : 
 Stadler v. Allen, 44-198. 
 
 550. The lien of a judgment rendered upon 
 a partnership debt, if prior in time to one on 
 an individual debt, is not postponed to the 
 latter. The rule that individual creditors are 
 to have priority as to individual property ap- 
 plies only in equity: Gillaspy v. Peck, 46-461. 
 
990 
 
 JUDGMENTS, VI, b, c. 
 
 Lien; upon what property. — Effect of: priorities. 
 
 651. Property lielil iiitrnst: Ajudgment 
 is a lien upon the equitable interest of tlie 
 debtor in property conveyed by trust deed, 
 and the surphis in the l.ands of the trustee 
 may be subjected to the payment of the 
 judgment, but tlie lien does not attach to 
 such surplus until steps are taken to subject 
 it to the payment of the judgment: Cook v. 
 Dillon, 9-407. 
 
 552. If proceedings have been commenced 
 to reach the surplus in the trustee's hands, 
 the jurisdiction of the court in such prc- 
 cjedings will net be ousted by garnishment 
 of the trustee to subject the money in his 
 handstoa judgment against the debtor: Ibid. 
 
 553. PrDpprty fnindulently cBiivcyi'd: 
 A judgment recovered by a creditor after a 
 fraudulent conveyance by his debtor does 
 not become a lien upon the property so con- 
 veyed, in the absence of proceedings to sub- 
 ject the pro|:erty to such judgment. The 
 conveyance is absolute as to the grantor, and 
 leaves no interest in him subject to the lien: 
 Hoidandv. Knox, -59-40. 
 
 554. Where the debtor has made a fraudu- 
 lent oonvevance of his property to one who 
 purchases in bad faith, the lien of the judg- 
 ment attaches, and the creditor may sell the 
 land under execution, and after expii-ation of 
 the time of redemption may bring action to 
 set aside the fraudulent conveyance and 
 quiet his title : Harrison v. Kramer. 3-543. 
 
 555. Survivor's rig^Iit in iKimpstead: A 
 judgment against the husband does not be- 
 come a lien on his right to occupj; the home- 
 stead as survivor u pen the death of the wife, 
 owning the fee : Smith v. Eaton, 50-488. 
 
 556. Exempt property: The lien of a 
 judgment does not attach to property which 
 is exempt from t'xecution, as, for instance, a 
 homestead: Lamb v. Shays, 14^567; Cum- 
 mings v. Long. 16-41; 
 
 557. Therefore, a judgment against the 
 city does not become a lien upon its public 
 buildings which by statutory provisions 
 (Code, § 3048) are exempt from sale on ex- 
 ecution : Dacenport v. Peoria M. & F. Ins. 
 Co., 17-276. 
 
 And see Executions, gg 150-153. 
 
 c. E-ffect of lien; priorities. 
 
 55S. Nature of lien: A judgment lien 
 upon land constitutes no property or right in 
 
 the land itself : Independent School Dist. v. 
 Werner, 43-643. 
 ?.5!). Kiglits of owner fulijrct 1o lien: 
 
 The owner of property subject to si judr;ment 
 lien has the riglit to cut wood and limber 
 upon the land. Timber thus cut but net re- 
 moved becomes personal property and does 
 not pass under a fale of the property under 
 execution subsequently levied : Ibid. 
 
 560. Enjciiiing' sale: Where execution is 
 levied on real property, upon whicli the 
 judgmei.t is not a lien, a sale may be on- 
 jcined to prevent a cloud being cast upon the 
 title : Key City Gas Light Co. v. Miimxll, 19- 
 305. 
 
 561. But if the judgment is a lien, it can- 
 not be enjoined on the ground that it is in- 
 ferior to the lien of plaintiff. Tlie senior 
 lienholder is not entitled to an injunction to 
 pre^eut the junior lienholder from seJUng:., 
 Wiedner v. Thompson, 66-283. 
 
 562. Etuloinptiou by liciilioh'er: The 
 holder of a judgment lien not made a party 
 to a loreclosure proceeding may m.ilic equi- 
 table ledemption from a purchaser at the 
 foreclosure sale : Wright v. Eowell, 35-S88. 
 
 And further, see Moetgages, g§-<6£-468. 
 
 56!?. Frici'ily of iion : The lien of a judg- 
 ment creditor is subject to equities upon the 
 property of the debtor existing in favor of 
 third persons at the time of the rccovei-y of 
 the judgment : Jones v. Jones, 13-376 ; Parker 
 V. Pierce, 16-227; Welton v. Tizeard, 15-495. 
 
 564. A specific lien, though unrecorded, 
 such as that specially arising by stipulation 
 in a confession of judgment, takes priority 
 over a judgment lien : Sigworth v. Meriarn, 
 66-477. 
 
 565. A judgment creditor, not having a 
 specific lien upon the jaroperty, but merely 
 such lien as the statute gives, acquires no 
 priority over an unrecorded mortgage or 
 other conveyance: Seevers v. Delashmvtf, 
 11-174; Welton v. Tizzard, 15-495; Hays r, 
 Thcde, 18-51 ; Soy v. Allen, S7-2C8; Rice v. 
 KeUo, 57-115. 
 
 566. If the prior unrecorded instrument \^- 
 recorded before sale of the property under 
 an execution issued upon the judgment, the 
 purchaser at such sale is affc cted with notice 
 thereof. In this respect the assignee of the 
 judgment stands in no better position than 
 the original judgment creditor, and is equally 
 
JUDGMENTS, VI, c - JURISDICTION. 
 
 997 
 
 Lien ; effect of ; priorities. 
 
 affected with all equ'ties and con%'eyanoes of 
 which be has notice before becoming a pur- 
 chaser at the sale : Chapman v. Coats, 20-288. 
 
 That a judgment creditor is not a pur- 
 chaser in such sense as to be protected against 
 prior unrecorded instruments, see Record- 
 IKG Acts, g§ 75-78. 
 
 5(>7. Neither a judgment creditor nor an 
 assignee of such judgment acquires any in- 
 terest in lands standing in the name of the 
 judgment debtor, such as will be paramount 
 to the right of one who conveyed such lands, 
 to Iiave the convej'ance set aside on. the 
 ground that it was procured by fi-audulent 
 representations: Rider i\ Kelso, 53-367. 
 
 5()S. A vender's lien is subordinate to a 
 jud ;ment 1 en acquired without notice of the 
 vendor's rights : Cutler v. Amman, 63-281. 
 
 oG!). Prior s.ile uuder jiuilor jiidjiueiit: 
 The purchaser at a sale under a judgment 
 which is in existence as a lien wJl acquire 
 priority over a purchaser at a sale prior in 
 point of time, but under a junior judgment : 
 Marshall v. MaUan, 3 G. Gr., 363. 
 
 570. Jiidjineiits of same iiale: As between 
 judgment creditors whcse liens are of the 
 same date, he who first takes the property in 
 execution has the preference to be first paid 
 out of its proceeds. This is the rule, whether 
 the property be real or personal, or choses in 
 action, not subject to actual or manual seiz- 
 ure, and are taken and seized only by gar- 
 nishment : Cook x\ Dillon, 9-407 ; Lippencott 
 V. Wilson, 40^25 ; Wilson v. Baker, 52-i23. 
 
 571. Priiirity of selznro: Where neither 
 of two judgments is alien upon the real prop- 
 erty in question, tlie one under which the 
 real property is first seized by actual levy 
 will be a prior lien thereon: Lathrop v. 
 Brown, 23-40. 
 
 572. As bctwcpu juilgments for partner- 
 ship and individual debts: A judgment 
 against an individual partner for a partner- 
 ship debt which is prior in time to a judg- 
 ment against him for an individual debt will 
 be prior in lien also. Such priority is not 
 affected by the rule for mai-shaling assets in 
 suchcasei: Gillaspy v. P^ck, 46-r461. 
 
 And see Partnership, §g 117-120. 
 
 673. lien under judgments by agree- 
 ment: Where judgment was entered in favor 
 of M. against C, and F. as his surety, in one 
 county, with the agreement with F. that a 
 
 transcript should immediately be filed in an- 
 other county where C. had real property, in 
 order that it should beccme a lien upon such 
 property, and M. afterwards obtained a sec- 
 ond judgment against C. and another surety 
 in the first county on a different indebtedness 
 and filed the transcripts of both judgments 
 at the same time in the latter county, held, 
 that upon the paym.ent by F. of the judg- 
 ment against him he became subiogated to 
 the rights of the judgment creditor as against 
 C. and was entitled to priority as to property 
 in the county where the transcripts were 
 filed, as against an execution levied on the 
 transcript of the second judgment: Perry 
 V. Miller, 54-277. 
 
 574. Where a confession of judgment was 
 made stipulating that it should be a lieu 
 upon certain property described, until the 
 debt was paid, held, that the rights of the 
 creditor in such judgment were prior to 
 the lien of a subsequent judgment, and that 
 the stipulaticm in the confession of judgment 
 as to a specific lien was not merged in the 
 judgment as recorded, and that although 
 more tban ten years had passed after the 
 entry of such judgment, the agreement for 
 a lien could be enforced as against a sub- 
 sequent judgment creditor: Sigicorth v. 
 Meriar.i, 06-477. 
 
 JUEISBICTION. 
 
 I. In general. 
 II. Essential to validity op judgment. 
 
 III. How ACQUIRED. 
 
 IV. How SHOWN; presumptions. 
 
 a. Courts of general and courts of 
 
 limited jurisdiction. 
 
 b. Presumptions in favor of court's 
 
 action; insufficient or defective 
 notice or service. 
 
 V. EBEORS and IRREGDLAPJTIE3 AS AFFECT- 
 ING jurisdiction; WANT OS JURIS- 
 DICTION. 
 
 VI. Judgments in personam and in rem. 
 VII. In actions .against minors, insane 
 
 PERSONS, ETC. 
 
 As to jurisdiction of particular courts, see 
 Courts, I. 
 
 As to jurisdiction for the appointment 
 of executor or administrator, see Estates of 
 Decedents, §§ 1-3. 
 
998 
 
 JURISDICTION, I, II. 
 
 In general.^- Essential to validity of judgment. 
 
 I. In general. 
 
 1. Territorial: The courts of the state 
 take judicial notice of the fact that the island 
 of Rock Island is within the state of Illinois 
 and forms a part of its territory for judicial 
 and all other purposes : Gilbert v. MoUne 
 Water Power, etc., Oo., 19-319. 
 
 2. A cause of action under tlie statntes of 
 auotlier state may be enfoi-ced in this state, 
 if such statutory provision is not contrary to 
 the policy of our laws : Boyce v. V/dbash JR. 
 Co., 63-70. 
 
 And see Actions, g§ 80-83. 
 
 3. Exclusive: Where a tribunal has been 
 provided for the determination of questions 
 connected with a particular subject, the ju- 
 risdiction thus conferred is exclusive, unless 
 Otherwise clearly or expressly manifested : 
 Macklot V. Davenport, 17-379. 
 
 4. Final : Under a statute giving a court 
 final jurisdiction as to a matter, the right to 
 appeal from its decision is negatived. In this 
 respect there is a difference between final 
 judgment and final jurisdiction. The one is 
 the decision of the law given by the conrt as 
 the result of proceedings therein instituted. 
 The other has reference to the power con- 
 ferred to take cognizance of and determine 
 causes according to law and to carry the 
 same into execution: Lampson v. Piatt, 1- 
 556. 
 
 As to the jurisdiction of the federal and 
 state courts with reference to each other, 
 see Courts, g§ 73-81. 
 
 II. Essential to validity of judg- 
 ment. 
 
 5. Subject-matter and parties: A judg- 
 ment rendered without the court having 
 acquired jurisdiction over either the subject- 
 matter or the parties is a mere nullity, and 
 may be declared void by a competent tribu- 
 nal whenever attempted to be enforced : Peed 
 V. Wright, 2 G. Gr., 15 ; Melhop v. Doane, 31- 
 397. 
 
 6. Plaintiff essential: It is as necessary 
 to the validity of the judgment that there 
 should be a plaintiff as that there should be 
 a defendant, and that both should be in court. 
 Therefore, held, that a judgment by confes- 
 sion entered at the request of defendant, and 
 
 without the knowledge or consent of plaint- 
 iff, should be canceled on motion ot. the lat- 
 ter: Farmer s\ eic, Bank v. Mather, 80-283. 
 
 7. Defendant essential: If a school dis- 
 trict has gone out of existence by reason of 
 being divided up into independent districts, 
 an action against it in the old name would 
 confer no jurisdiction upon the court of either 
 the subject-matter or of tlie person : District 
 Tpv. Independent Dist, 63-188. 
 
 8. Judgment ag:ainst persons not parties : 
 A decree against persons who are not parties 
 to the suit is erroneous : McClure v. Owens, 
 21-133. 
 
 9. The court does not acquire jurisdiction 
 over stockholders of a corporation in an ac- 
 tion wherein a receiver of the corporation is 
 appointed by an interlocutory order served 
 upon the stockholders, who are not parties to 
 the original action, requiring them to pay 
 certain instalments upon their stock notes : 
 Lamar Ins. Co. v. Hildreth, 55-248. 
 
 10. A judgment ought not to be enforced as 
 a lien upon property until the owner either 
 by himself or his privies has had an oppor- 
 tunity to resist it. It should not be regarded 
 as evidence of liability of the property, if 
 the owner has not been a party to the pro- 
 ceeding in which it was rendered : Buehham 
 V. Grape, 65-535. 
 
 11. After dismissal of suit: In an action 
 to set aside a conveyance and subject the 
 land to the payment of the grantor's debts, 
 held, that it was erroneous to grant the relief 
 when it appeared that the plaintiff had dis- 
 missed his action as to the grantees before 
 trial : Brooks v. Cutler, 18-433. 
 
 As to jurisdiction of the court after entry 
 of judgment, see Coukts, g§ 244-246. 
 
 As to jurisdiction after the taking of an 
 appeal, see Appeals, g§ 649-654. 
 
 12. Subject-matter: A judgment abso- 
 lutely void upon its face for want of power 
 in the court to render judgment at the time 
 it was rendered is liable to collateral attack : 
 Scott V. Bdbcock, 3 G. Gr., 133. 
 
 13. "Where the court has no jurisdiction of 
 the subject-matter, any adjudication or order 
 it may make is void, and a judgment so 
 rendered is not binding, although never ap- 
 pealed from: Osbomv. Cloud, 23-104. 
 
 1 4. Want of jurisdiction is a matter which 
 may always bo interposed agaiiwt an adju- 
 
JURISDICTION, III. 
 
 999 
 
 How acquired. 
 
 dication when sought to be enforced or when 
 any benefit is claimed for it, and want of 
 jurisdiction either of the subject-matter or of 
 the person of either party renders the judg- 
 ment a mere nullity : Kline v. Kline, 57-386. 
 
 15. Where the court has jurisdiction of 
 the subject-matter and the parties, its action 
 in rendering a decree which it might render 
 under certain circumstances will not be void 
 for want of jurisdiction, although it may be 
 erroneous, and therefore it will not be sub- 
 ject to collateral attack : Traer v. Whitman, 
 .56-443. 
 
 Further, as to collateral attack, see Judg- 
 ments, II, b. 
 
 III. How ACQUIRED. 
 
 By ser?iee of notice: See Origixai, No- 
 
 TICJE. 
 
 By appearance: What constitutes an ap- 
 pearance, such as to give a court jurisdic- 
 tion, see Appeajjance. 
 
 In garnishment proceedings, see Garnish- 
 ment, §§ 5, 6. 
 
 16. Effect of appearjinee as iraiviug de- 
 fects: By appearing and submitting to the 
 jiu-isdiction of the court, defendant waives 
 all defects in the process and service thereof : 
 Bell V. Pierson, Mor., 21; Hall v. Biever, 
 Mor., 113; Hedinger v. Silsbee, 2 G. Gr., 
 363; Houston V. WaXcott, 1-86; Van Vark v. 
 Van Dam, 14-232; C'hilds v. Limback. 30- 
 398. 
 
 17. Where the court has jurisdiction of 
 the subject-matter, mere irregularity in the 
 process or its service will be cured bj- volun- 
 tary appearance ; so held in case of an appeal 
 from a justice of the peace : WHgus v. Get- 
 tings, 19-82. 
 
 18. Appearing and submitting to the juris- 
 diction is a waiver of all objection to any 
 preceding irregularity: Cane v. Watson, 
 Mor., 52. 
 
 19. A subsequent appearance of defendant 
 win validate the previous service of a writ of 
 injunction made without the court having 
 obtained jurisdiction of defendant : District 
 Tp V. DUtrict Tp, 54-115. 
 
 20. Amendment of pleadings: A party by 
 amending his pleadings and submitting to 
 the action of the court will waive any error 
 in prior proceedings, for instance, in having 
 
 granted a new trial : Powers v. Bridges, 1 G. 
 Gr., 335. 
 
 And further as to waiver of objections by 
 pleading over, see Pleadings, XIV, e. 
 
 21. Consent does not confer jurisdiction 
 as to snbjeet-nialter: Where the law does 
 not confer jurisdiction of the subject-matter 
 upon the court, no act of the parties can give 
 the court jurisdiction : Dicks v. Hatch, 10- 
 380; Walker v. Kynett, 32-524; Rogers v. 
 Loop, 51^1 ; MeMeans v. Cameron, 51-691 ; 
 Cerro Gordo County v. Wright County, 59- 
 485 ; Hynds v. Fay, 70 . 
 
 22. Thei-efore, held, that where the amount 
 in the notice of a suit before a justice of the 
 peace was such that the justice had no juris- 
 diction, a, subsequent appearance by defend- 
 ant to object to such jurisdiction would not 
 enable the plaintiff, by i-educing the amount 
 of his claim, to confer jurisdiction upon the 
 justice in the case : Hynds v. Fay, 70 . 
 
 23. If the court does not have power to 
 enter a particular order or judgment, the 
 consent of the parties will not empower it to 
 do so : Miller v. Haley, 66-360. 
 
 24. The district court cannot obtain juris- 
 diction of an action of forcible entry and de- 
 tainer by agreement of parties to transfer 
 the cause to that court : Easton v. Fleming, 
 .jl-305. 
 
 25. When a court has no jurisdiction of 
 the subject-matter because of the exclusive 
 jurisdiction of the federal court, the objec- 
 tion cannot be waived so as to give jurisdic- 
 tion, but may be urged at any stage of the 
 proceeding: Walters v. Steamboat Mollie 
 Dozier, 24-192. 
 
 26. Under statutory provisions authorizing 
 the submission of a controversy to the deter- 
 mination of a court without an action, held, 
 that the affidavit required by statute, that the 
 proceeding is in good faith to determine the 
 rights of the parties thereto, was essential, 
 and without such affidavit the court would 
 acquire no jurisdiction: Keeline v. Council 
 Bluffs, 63-450. 
 
 27. Consent confers jurisdiction of par- 
 ties: Where a court has jurisdiction of the 
 subject-matter, it may acquire jurisdiction of 
 the parties by consent. Therefore, held, that 
 a change of venue taken by consent of both 
 parties conferred jurisdiction upon the court 
 to which the cliange was taken, although such 
 
IGOO 
 
 JURISDICTION, III. 
 
 How acquired. 
 
 change waanot authorized by law, the court 
 being one having jurisdiction of the subject- 
 matter: Davidscmv. Wheeler, Mor., 2S8. 
 
 28. While consent will not confer jurisdic- 
 tion over the subject-matter, yet defects and 
 irregularities both as to time and manner 
 may be waived so as to preclude future, ob- 
 jections by the silence of the party, even in 
 the absence of his open consent or written 
 agreement. Therefore, held, that where the 
 court had jurisdiction of the subject-mat- 
 ter, the hearing of the cause out of term 
 time or at a place not designated for hold- 
 ing court, even in another county than that 
 in which the cause was pending, was at the 
 most nothing more than an irregularity 
 which was waived by consent of the parties 
 to such proceeding: O'Hagen v. O'Hagen, 
 14-264. 
 
 Further as to consent to hearing outside 
 of the county, see Courts, Sg 171-173. 
 
 29. Where the court has the right to as- 
 sume general jurisdiction of the subject- 
 matter, the parties may waive the ordinary 
 process and voluntarily give the court jui'is- 
 diction over the person: Groves v. Rich- 
 mond, 5S-G9. 
 
 30. Therefore where proceedings for a writ 
 of certiorari were commenced in the district 
 court, whieh by statute has no jurisdiction of 
 such proceedings in a civil case, held, that 
 the transfer of the case by agreement to the 
 circuit court having general jurisdiction of 
 the subject-matter, conferred jurisdiction of 
 the case upon that court : Ibid. 
 
 31. Where a cause was appealed to the 
 district court from a judgment of a justice 
 of the peace, before the circuit court was 
 given jui-isdiction of such appeals, and was 
 then improperly transferred to the circuit 
 court, held, that the appearance of the party 
 in the circuit court without raising objection 
 to its jurisdiction was sufficient to give 
 jurisdiction, and such objection could not be 
 raised for the first time on appeal : Iowa N. 
 O. B. Co. V. Bitter, 38-568. 
 
 32. Where an action commenced as a law 
 action was by change of venue transferred to 
 the circuit court, which at that time had 
 jurisdiction of actions at law, but not of 
 those in equity, and afterwards, upon motion 
 to change the action to the equity docket, 
 such change was granted, the circuit court 
 
 then having by statute jurisdiction in equity, 
 held, that it could properly try the case: 
 Polk County v. Hierb, 37-331. 
 
 33. In .ictions bfifovp justices of the peace: 
 Consent cannot confer upon courts a greater 
 power than the law confers. Parties cannot 
 by agreement give jurisdiction to courts 
 which could not be exercised by virtue of 
 legal process. Therefore, held, that under 
 the provisions of statute limiting the jurisdic- 
 tion of justices of the peace to actions asjainst 
 residejits of the state, who are actual resi- 
 dents of the county in which the action is 
 brought, consent of defendant cannot give 
 jurisdiction in an action in any county other 
 than that of his residence: Chapman v. Mor- 
 gan, 3 G. Gr., 874; Boyer v. Moore, AZ-SU; 
 McMeans v. Cameron, 51-691. ' 
 
 34. A failure to raise this objectiqn before 
 the justice of the peace before whom the 
 action is properly brought does not prevent a 
 party from raising it on appeal : McMeans v. 
 Cameron, 51-691. 
 
 35. On appeal from justices of the peace: 
 Where a party appears on an appeal from a 
 justice of the peace to a higher court and 
 without objection proceeds to a trial of the 
 case, it being one as to the subject-matter 
 of which the court to which the appeal is 
 taken has jurisdiction, he thereby waives 
 the objection that there was no jurisdiction 
 in the justice's court from which the appeal 
 was taken: Danforth v. Thompson, 34-243; 
 DraJce v. Achison, 4 G. Gr., 397. 
 
 3G. But an appeal from the justice will not 
 give the circuit court jurisdiction of a case 
 in which the justice lacked jurisdiction of 
 the subject-matter, even though the circuit 
 court would have had jtuisdiction had the 
 cause been originally brought there : McMeans 
 V. Cameron, 51-691. 
 
 37. On appeal to the siipreiiie conrt: 
 Where the court below has jurisdiction over 
 the subject-matter in controversy, irregular- 
 ities in the lower court may be waived by 
 appeal, but where the trial court has no ju- 
 risdiction, or is not such a tribunal as is au- 
 thorized by law to try the case, appeal will 
 not confer jurisdiction: Burlington Univer- 
 sity V. Stewart's Ex'rs, 13-442. 
 
 38, Though a jurisdictional question ap- 
 pearing on the record is not raised in the 
 lower court or on appeal, it may and shoiUd 
 
JURISDICTION, IV, a. 
 
 1001 
 
 How shown; presumptions. — Ganoral and limited. 
 
 be raised by the appellate court for itself: 
 District T'p v. District Tp, 45-104. 
 
 3i>. Where it appeal's that there is want of 
 jurisdiction in the court below, or where the 
 ruling made is in excess of the power or au- 
 thority of the court, it is the duty of the su- 
 preme court to recognize such want of juris- 
 diction, even if no objection is made : Groves 
 V. Richmond, 53-570. And see St. Joseph 
 Mfg. Co. V. Harrmrjton, 53-380. 
 
 40. Want of jurisdiction of the lower court 
 over the subject-matter may be raised for 
 the first time in the supreme court: Cerro 
 Gordo County v. Wright County, 59-485; 
 Walters V. Steamboat Mollie Dozier, 24-193. 
 
 41. Where there is no judgment rendei-ed 
 in the court below from which an appeal 
 may be taken, consent of the parties will not 
 givetlie supreme court jurisdiction: Long v. 
 Long, Mor.. 331; Butter v. State, 1-99; 
 Kimble v. Riggin, 2 (i. Gr., 245. 
 
 IV. How snowN; peesumptions. 
 
 a. Courts of general and courts of 
 limited jurisdiotion. 
 
 42. General jari^dictiOH: In the absence 
 of any affirmative showing the proceedings 
 of a court of general jurisdiction will be pre- 
 sumed legal and regular: State v. Clark, SO- 
 WS. 
 
 43. Nothing will be presumed against a 
 court of general jurisdiction: Bridgman v. 
 Wilcut,4:G. Gr., 563. 
 
 44. In regard to courts of superior and 
 of general jurisdiction, every presumption is 
 made in favor not only of their proceedings, 
 but of their jurisdiction : Cooper v. Sunder- 
 land, 3-114; Morrow v. Weed, 4-77. 
 
 45. Pri'suiiiptiou of regiilarily of prn- 
 ceeilinjs: If the court has jurisdiction, every 
 presumption thereafter is in favor of the reg- 
 ulaiity of its proceedings, and they cannot be 
 inquired into collaterally: Davenport Mut. 
 Savings, etc., Ass'nv. Schmidt, 15-313. 
 
 46. A judgment of a court of general juris- 
 diction which has acquu-ed jurisdiction of 
 the person is presumed to be regular until 
 error is affirmatively shown : State v. Win- 
 strand, Sl-UO. 
 
 47. The presumption is in favor of the va- 
 
 lidity of the judgment of a court of record : 
 Weider v. Overton, 47- 538. 
 
 48. I'resnmption in favnr of rPCDid: 
 Every presumption is entertained in favor of 
 the proceedings of a court as well as its 
 power to act, and where the facts showing 
 that the jurisdiction has attached are recited 
 in the decree, it will be presumed that they 
 are connect : Suiter v. Turner, 10-517. 
 
 40. In the absence of a complete record, 
 the finding of a court raises a, pre.sumption 
 that such service has been made as will give 
 the court jurisdiction over defendant: State 
 V. Elgin, 11-216. 
 
 60. The record of a judgment in a court 
 of general jurisdiction is an absolute and in- 
 controvertible verity, and if the court has 
 jurisdiction over the subject-matter it can be 
 impeached only by showing fraud : Wright v. 
 Marsh, 2 G. Gr., 94. 
 
 51. "Want of jurisdiction will not be pre- 
 sumed in the case of a court of general 
 authority, and where the record from such a 
 court is silent or does not contain all the 
 facts necessary to show that such, authority 
 was exercised, it will stQl be presumed that 
 the court had jurisdiction over the subject- 
 matter and pai'ties : Ihid. 
 
 52. When the judgment is silent upon the 
 facts necessary to confer jurisdiction, the 
 law presumes the decision of the court in 
 favor of its jurisdiction to be correct, and its 
 final judgment will be binding until reversed 
 in an appellate court upon a direct proceed- 
 ing. This doctrine applies only to courts of 
 general jurisdiction in the exercise of their 
 ordinary powers and when their judgments 
 are brought in question in the state where 
 rendered: Seely v. Reid, 3 G. Gr., 374. 
 
 53. When the subject-matter is legally 
 within the jurisdiction of a ccurt of general 
 jurisdiction, and the parties appear to have 
 been before it, the presumptions of correct- 
 ness and regularity attend its proceedings, 
 and it is not necessary that many matters be 
 made to appear of record which would be 
 necessary in a court of limited and inferior 
 jurisdiction: Campbell v. Ayres, 6-339. 
 
 54. Where the court render .ng the judg- 
 ment was one of general jurisdiction, it is 
 not necessary that evidence or circumstances 
 confei-ring jurisdiction upon it sliould be set 
 out in the record. In the absence of any- 
 
1002 
 
 JURISDICTION, IV, a. 
 
 General and limited. 
 
 thing occuiTing in the record, jurisdiction 
 will always be presumed when the judgment 
 is questioned collaterally : Hunger v. Barlow, 
 39-539. 
 
 55. A court possessing general jui-isdiction 
 is not required to rebut and repel every pre- 
 sumption which might arise against the reg- 
 ularity of its action. Thus, where a judgment 
 rendered in one county three days after the 
 tei-m of the same court should, by law, have 
 commenced in another county, held, that in 
 the absence of a i-ecord as to the fact, it would 
 be presumed that the term in the second 
 county had been adjourned and the court 
 was being properly held in the first county 
 by the continuance of the previous term, or 
 by order for a special term : Weaver v. Cool- 
 edge, 15-244. 
 
 56. Where a trial was had at a special term 
 of court, held, that it would be presumed 
 tliat the notice required by law to be given of 
 such term had been given, although such 
 notice was not specified of record : Harriman 
 V. State. 2 G. Gr., 270. 
 
 57. The presumption in case of a judgment 
 by a court of record is that the court had juris- 
 diction of the parties, and where, in order to 
 support such jurisdiction, it is necessary to 
 presume that one of the parties resided in a 
 Ijarticular place, such presumption will be 
 entertained in the absence of proof to the 
 contrary : Doran v. Davis, 43-86. 
 
 58. Where the judgment recited " that 
 service of notice had been made upon" 
 defendant, but the record showed service by 
 publication only, held, that personal service 
 would not be presumed and the judgment 
 would be regarded as in rem: Mayfleld v. 
 Bennett, 48-194. 
 
 Further as to the record, see Judgments, 
 I, d; and COURTS, II, c. 
 
 59. Presumptions as to foreign judg- 
 ment: Where the courts of a sister state 
 have jurisdiction, their mode of procedure 
 will be presumed to be regular and the judg- 
 ment will not be subject to attack : Otto v. 
 Doty, 61-23. 
 
 CO. It appearing that the county court of 
 Wisconsin is a court of record having a seal, 
 and a clerk, its judgments are entitled to the 
 same force and credit in this state as in the 
 state in which they were rendered, and its 
 proceedings will be deemed regular and con- 
 
 clusive as those of courts of general jurisdic- 
 tion : Danforth v. Thompson, 34-243. 
 
 CI. The judgment of a court of another 
 state, where the jurisdiction properly appears 
 upon the record, is entitled to the same credit 
 in this state as it is entitled to in the state 
 where rendered : Melhop v. Doane, 31-397. 
 
 62. While the record reciting jurisdiction 
 should have a large degree of sanctity at- 
 tached to it, and a party should not be al- 
 lowed to attack it unless he is entirely free 
 from negligence, yet if his right is clear, the 
 injury palpable and the evidence convincing, 
 a sale thereunder will be void if no juris- 
 diction was in fact acquired: Harshey v. 
 Blackmarr, 20-161. 
 
 63. Recitals not conclusiTS : A judgment 
 which recites that defendant was duly and 
 legally seiwed with notice is not conclusive 
 on the parties as to the fact of notice and ap- 
 pearance, and if the court did in fact proceed 
 without jurisdiction, its decision is a nullity 
 as to each and every fact found or question 
 decided : Newcomb v. Dewey, 27-381. 
 
 C4. Where it appears that judgment was 
 rendered without service of any kind upon 
 defendant, it will be held void regardless of 
 the recitals of the judgment as to service: 
 Stone v. Skerry, 31-582. 
 
 G5. The entry of a decree or judgment 
 raises the presumption of legal service, but 
 does not prevent defendant from showing 
 in a proper manner that there was no serv- 
 ice, nor is a recital in the decree that the 
 court inspected the record, and that it ap- 
 peared therein that notice was duly served 
 at the time and in the manner provided by 
 law, conclusive: Hartley v. Boynton, 5 
 McCrary, 453. 
 
 66. The fact that a judgment recites ap- 
 pearance by the parties is not sufficient to 
 show an appearance by a co-defendant not 
 served with notice : Kite v. Bonafleld, 8 G. 
 Gr., 199. 
 
 67. In an action upon the judgment of a 
 sister state, want of jui-isdiction in the court 
 rendering it may be shown by evidence con- 
 tradicting the recital of service of process: 
 Loice V. Lowe, 40-220. 
 
 68. Where the notice is fatally defective, 
 by reason of not informing defendant of the 
 time and place when and where he is re- 
 quired to appear, the court acquires no juris- 
 
JURISDICTION, IV, a. 
 
 1003 
 
 General and limited. 
 
 diction even by a recital showing that notice 
 was given: Lyon v. Vanatta, 35-521. 
 
 Ci). Entire want of notice: Such a case is 
 not a case of defective notice, but of entire 
 want of notice : Ibid. ; Haws v. Clark, 37- 
 355. 
 
 70. Where there is entire want of notice, 
 no motion to correct the error need be made 
 before the justice of the peace, rendering the 
 judgment, and the eiTOr may be taken ad- 
 vantage of by writ of error, if the party has 
 knowledge thereof within the proper time, 
 or afterwards by an independent action: 
 Holmes v. Hull, 48-177. 
 
 71. Wliere it is sought to make a judg- 
 ment the basis of a new recovery, it is al- 
 ways permissible to show tliat the court 
 rendering the judgment had no jurisdiction. 
 So held where the return of service purport- 
 ing to show service by leaving a copy at de- 
 fendant's place of residence did not show 
 that defendant could not be found nor that 
 the place where it was left was defendant's 
 place of usual residence, nor the name of 
 the person with whom the copy was left, nor 
 at whose house it was left : Clark v. Little, 
 41-497. 
 
 72. Courts of limited jurisdiction: The 
 presumption which is entertained in favor of 
 the jurisdiction of courts of genei'al jurisdic- 
 tion is not exercised in relation to the juris- 
 diction of a court which is inferior and lim- 
 ited, but its jurisdiction must be shown: 
 Cooper V. Sunderland, 3-114; Morrow v. 
 Weed, 4r-77. ' 
 
 73. Where, however, the jurisdiction of a 
 Court of limited and inferior jurisdiction is 
 shown, the same presumption exists in favor 
 of its proceedings as in favor of the proceed- 
 ings of a superior court : Ibid. 
 
 74. An inferior court should set out on the 
 face of its proceedings the facts necessary to 
 show its jurisdiction. After the necessary 
 facts are thus set out they are presumed to be 
 true and prima facie sufficient to support the 
 jurisdiction. Such allegations, however, in 
 the record may be contradicted, as, for in- 
 stance, by the other parts of the record, or 
 perhaps by evidence aliunde: Ibid. 
 
 75. The judgment of a court of inferior 
 jurisdiction must show the facts that confer 
 jui-isdjction : Goodrich v. Brown, 30-291. 
 
 76. There is, however, no particular form 
 
 in which such facts should be made to ap- 
 pear, and if it appears on the face of the pro- 
 ceedings that the court had jurisdiction, it 
 will be inferred that its proceedings were 
 regular: Rowan v. Lamb, 4 G. Gr., 468. 
 
 77. If there be a petition or proper mat- 
 ter of that nature to call into action the 
 power or jurisdiction of the court, and a 
 notice of some kind, the suflBcienoy of such 
 petition or notice cannot be called into ques- 
 tion collaterally : Morrow v. Weed, 4r-n. 
 
 78. The same presumptions do not arise 
 in favor of the legality of the proceedings 
 of a court of limited jurisdiction as in favor 
 of the proceedings of a court of general 
 jurisdiction: Mills County v. Hamaker, 11- 
 206. 
 
 79. Therefore, where the hearing of a 
 certain claim could be had in an inferior 
 court only upon a certain day of each month 
 unless in pursuance of special adjournment, 
 held, that a judgment rendered therein at 
 another date without such adjournment 
 shown on the record would not be presumed 
 to be valid : Ibid. 
 
 80. Where power is given to a court over a 
 special subject which is not in the usual 
 course of the comnjon law, and a mode is 
 prescribed, such mode must be pursued, 
 whether the tribunal be a superior or an 
 inferior court, and sufficient must appear on 
 the face of the proceedings to show the case 
 to be within the jurisdiction of the tribunal. 
 But if sufficient appears on the face of the 
 record of the court to give it jurisdiction, 
 then the presumption attaches in favor of 
 the regularity of the proceedings, whatever 
 the court may be : Cooper v. Sunderland, 3- 
 114 ; Morrow v. Weed, 4^77. 
 
 81. So held with regard to a judicial sale 
 on the application of a guardian made in 
 accordance with statutory provisions : Cooper 
 V. Sunderland, 3-114. 
 
 82. In a proceeding by an administrator 
 for the sale of real property, the court must, 
 of necessity, determine the sufficiency of the 
 petition. An erroneous determination may 
 be reviewed upon appeal or writ of error, and 
 the judgment and sale cannot be collaterally 
 attacked on account of such defects : Read v. 
 Howe, 89-553. 
 
 83. Under statutory provisions with refer- 
 ence to the county court, making it a court 
 
lOOJ: 
 
 JURISDICTION, IV, a. 
 
 General aad limited. 
 
 of limited jurisrliction, held, tliat it would be 
 presumed to Iia%e acted regularly after juris- 
 diction had attached, and that when the 
 court had juiisdiction of the parties and sub- 
 ject-mattoi-, a judgment authorizing a guard- 
 ian's sale of real estate could not, in the ab- 
 sence of fraud, be impeached collaterally 
 because of irregularities: Pursley v. Hayes, 
 33 11. 
 
 8i. Whore, in such a case, the notice was 
 attached to the petition, and referred to it, 
 and the officer's return showed due service of 
 the notice upon the minor owners of the 
 property, held, that it would not be pre- 
 sumed, in a collateral proceeding to impeach 
 the sale, that a copy of the petition %vas not 
 served upon the minors as required by stat- 
 ute: Ibid. 
 
 85. In such case, held also, that a defect in 
 the service which the county court held and 
 treated as immaterial should not defeat the 
 title, the objection being first raised in a col'- 
 lateral proceeding: Ihid. 
 
 8C. Where a statute required the publica- 
 tion of notice of an administrator's sale for 
 three successive weeks, and it appoired that 
 title to property was involved which had 
 stood unquestioned for years, held, that pub- 
 lication for three consecutive weeks was 
 sufficient, although the sale in pursuance of 
 the notice was made before the expiration of 
 the third week : Morrow v. Weed, 4-77. 
 
 87. When a new or special right or power 
 is given, and its mode and circumstances ai'e 
 prescribed, these must be obeyed substan- 
 tially : 17am v. Steamboat Hamburg, 3-460. 
 
 88. Where summary proceedings are given 
 by statute, everything necessary to give the 
 court jurisdiction must appear of record and 
 nothing will be taken by intendme;it. If a 
 judgment of the court in such proceeding is 
 afterwards called in question, the record may 
 be looked into to determine whether the 
 facts there appearing were sufficient to con- 
 fer jurisdiction. If not, the judgment may 
 be collaterally attacked: Tijfany v. Glover, 
 3 G. Gr., 337. 
 
 8J). The board of supervisors of a county 
 constitute, for the jjurpose of authorizing the 
 construction of a levee and the assessment of 
 taxes upon land therefor, a court of special 
 and limited jurisdiction, and in the absence 
 of a sliowing by the record of the board or in 
 
 some other manner authorized by law, no 
 presumption will be exercised as to the ex- 
 istence of the jurisdictional facts necessary 
 to show that the board acqu;j-ed authority to 
 act. The court will not presuaie the exist- 
 ence of facts upon which their jurisdiction 
 wholly depends : Bichman v. Board of Su- 
 
 peri-isors. 70 . 
 
 !)0. Proceedings wherein certain parties 
 not within the teiTitorial jurisdiction of the 
 court are served with process of puLMcation 
 are not in accordance with the course of the 
 common law, and are only va'id v.hen au- 
 thorized by statute, though binding in courts 
 exercising general jurisdiction. They are 
 special, and judgments rendered therein 
 stand on the same footing as those of courts 
 of inferior and limited jurisdiction: Brad- 
 lay V, Jamison, 46-38 ; Miller v. Corbin, 48- 
 150. 
 
 91. The jurisdiction of a court of record 
 in an attachment proceeding is not inferior 
 or -limited: Rowan v. Lamb, 4 G. Gr.. 408. 
 
 92. When the jurisdiction of a court of 
 limited jurisdiction is once established, it is 
 entitled to the same presumptions in favor of 
 its action which are entertained in favor of 
 the action of a superior court, and subsequent 
 irregularities will not render its proceedings 
 void or subject; to collateral attack : Little v. 
 Sinnett, 7-324 ; State v. Berry, 12-58; Shato- 
 han V. Loffer, 24-317. 
 
 93. When the jurisdiction of a court of 
 limited jiu-isdiction is shown to have at- 
 tached, its subsequent proceedings are pre- 
 sumed as regular as those of a court of gen- 
 eral jurisdiction, and its decision upon every 
 question properly arising is binding and con- 
 clusive until reversed on appeal: Smith v. 
 Engle, 44^205. 
 
 9-1. So held with reference to the sufS- 
 ciency of a discharge in a bankruptcy pro- 
 ceeding: Ibid. 
 
 !t5. Therefore, held, also, that an entry on 
 the docket of a justice of the peace that the 
 cause was continued by agreement of parties 
 in open court could not be contradicted by 
 affidavits denying the agreement: Caughlin 
 V. Blake, 55-634. 
 
 96. Judgments, orders or decrees of a pro- 
 bate court made within the scope of its 
 powers given by the statute are regarded as 
 conclusive against a collateral attack, when 
 
JURISDICTION, IV, b. 
 
 1005 
 
 Presumption in favor of court's action ; insnfSoient notice. 
 
 the court has jurisdiction of the parties and 
 Euhject-mattiir : Barney v. Chittenden, 2 G. 
 Gr.,lSj. 
 
 b. Presumption in favor of cniirfs 
 action; insujfi,cient or defective 
 notice or service. 
 
 97. Action nphfld: If the jurisdiction de- 
 pends upon a fact vvhicli must be ascertained 
 by the court, and such fact appeare and is 
 stated in the record 'as, for instance, the fact 
 of service of notice), a party wlio had an op- 
 portunity to controvert such jurisdictional 
 fact, and did not, but contested tlie case 
 upon its merits, cannot afterwards impeach 
 the record in n collatsriil proceeding, and 
 show the jurisdictional fact therein stated to 
 be unti-ue : Morrow v. Weed, 4-77. 
 
 98. Wlipre there is evidence of the jurisdic- 
 tional fact, and the only question is as to its 
 sufficiency, then the court must judge of 
 its own jurisdiction, and its judgment is 
 valid unless set aside in some regulai' man- 
 ner: Ihid. 
 
 99. Where the jurisdiction of a court de- 
 pends upon a fact and it assumes jurisdic- 
 tion, it will be presumed that such fact was 
 proved and that it acted rightfully : Lees v. 
 Wetmore, 58-170. 
 
 100. Where it is necessary in order to sus- 
 tain the judgment of a justice of the peace, 
 it may be pre3ua\ed that acts which are 
 shown to have leen done were done in euch 
 order as was necessary in order that the ju- 
 risdiction should have been properly exer- 
 cised: Hodge v. Buggies, 36-42. 
 
 101. Jurisdiction having once been ac- 
 quired by a justice of the peace, the pre- 
 sumption is that it continues until judgment, 
 in the absence of an affirmative showing to 
 the contrary : Moore v. Reeves, 47-SO. 
 
 102. And where it appeared that judg- 
 ment on the answer of the garnishee was 
 not rendered within three days thereafter, 
 held, that the presumption would be that the 
 case was continued until the day on which 
 judgment was rendered : Ibid. 
 
 103. Where the statute of the state in 
 which judgment was i-endered by a justice 
 of the peace provided that action might be 
 brought before a justice of the township of 
 plalntiiJE's or defendant's residence or of a 
 
 township adjoining (hat where plaintiff or 
 defendant resided, held, that in an action in 
 this state on such judgment, although it was 
 shown tliat the justice rendering the judg- 
 ment was not of the township of plaintiff's 
 or defendant's residence, it would be pre- 
 sumed that the township of suc'.i justice ad- 
 joined that of the residence of either plaintiff 
 or derendant: Church r. Cross:nan, 49-444. 
 
 10!. In a proceeding for sale of property 
 by an administrator, the court having found 
 that the petition and notice thereof were 
 sufficient, held, that the presumption of reg- 
 ularity would arise, and t'ne judgment could 
 not be collaterally attacked : Lees v. Wet- 
 more, 58-170. 
 
 li;.5. A court of inferior jurisdiction can- 
 not, however, acquire jurisdiction over the 
 subject-matter by a simple declaration that 
 it has such jurisdiction. The presumption of 
 regularity will not prevail so far : Brown v. 
 Davis, 59-641. 
 
 103. Presumption in favor cf fintling' as 
 to s.Tvicn: Where there appears to have 
 been service, and the court rendering the 
 judgment determined that there was such 
 personal service as to authorize the rendition 
 of a judgment, the judgment is not open to 
 collateral attac'j on the ground that the serv- 
 ice was not sufficient : Latferett v. Cook, 1-1. 
 
 107. The sufficiency of ser%-ice being sub- 
 ject to the determination of the ccurt, and 
 that determination being that it is sufficient, 
 such determination is conoinsive against col- 
 lateral attack: Telford v. Barney, 1 G. Gr., 
 573. 
 
 108. Where the court's jurisdiction de- 
 jiends upon the sufficiency of service of no- 
 tice, and it finds and adjudges that due and 
 lawful service has been made, this judgment 
 cannot be attacked collaterally upon proof 
 that such service was in fact not made : Lees 
 V. Wetmore, 58-170. 
 
 109. When the question of jurisdiction 
 upon service by publication is necessarily 
 presented to a court of general jurisdiction, 
 and is decided in favor cf its jurisdiction, 
 such judgment will be conclusive against a 
 collateral attack: Wright v. Marsh, 2 G. 
 Gr., 94. 
 
 110. The record in a particular case held 
 sufficient to show service and confer jurisdic- 
 tion : Hart v. Cummins, 1-564. 
 
1006 
 
 JURISDICTION, IV, b. 
 
 Presumption in favor of court's action ; insufficient notice. 
 
 111. Insnflicient service and want of serv- 
 ice; There is a clear distinction between a 
 service insufficient only in the manner of 
 making it and a case where no service at aU 
 is made or attempted to be made. In the 
 latter case, there is no question of jurisdic- 
 tion to decide, and if a judgment is rendered 
 under such circumstances against a party, it 
 will be a nullity. But if there is a question 
 of jurisdiction raised which the court must 
 decide, if it does so erroneously against the 
 defendant, and renders a judgment for 
 plaintiff, such judgment will be voidable, but 
 binding upon the parties until reversed or 
 corrected on appeal : Bonsall v. Isett, 14-309. 
 
 112. Where it appears that there was 
 notice and return of personal service, a de- 
 fect therein which is held immaterial by the 
 tribunal cannot be taken advantage of collat- 
 erally: Pursley v. Hayes, 32-11; Bollinger 
 V. Tarbell, 16-491. 
 
 113. Though the notice be irregular and 
 insufficient, yet if the court takes jurisdiction 
 to render judgment, the judgment is not 
 void, but the error can only be taken advan- 
 tage of on 'appeal: Moody v. Taylor, 13-71; 
 De Tar v. Boone County, 34-488 ; Woodbury 
 V. Maguire, 43-339. 
 
 114. Where there is service, though de- 
 fective, the judgment can only be attacked 
 in a direct proceeding. The presumption is 
 In favor of the correctness of the proceedings 
 of a court of general jurisdiction and that a 
 public officer properly discharges his duty : 
 Boker v. Chapline, 12-304. 
 
 115. Therefore, held, that the judgment 
 of a court of general jurisdiction rendered 
 upon service, by leaving a copy, although 
 the return did not show that defendant was 
 not found, could not be attacked collater- 
 ally: Bonsall v. Isett, 14-309; Gregg v. 
 Thompson, 17-107 ; 3Iuseatine Turn Verein v. 
 Fundi, 18-469. 
 
 110. Where there is actual service and the 
 return is defective, the judgment is not void 
 and can only be attacked in a direct proceed- 
 ing : Moomey v. Maas, 33-380. 
 
 117. Where it appears that there was notice 
 and service, though they were defective, yet 
 if the court determines in favor of their suf- 
 ficiency, even though the determination be 
 erroneous, the court will have jurisdiction, 
 and its judgment cannot be held void in a 
 
 collateral proceeding: Shawhan v. Loffer, 24- 
 317 ; Farmers' Ins. Co. ^\ Highsmith, 44-330 ; 
 Sheq, V. Quintin, 30-58 ; Ballinger v. Tarbell, 
 16-491. 
 
 118. Where a decree recited a finding by 
 the court that defendant had been served with 
 notice, held, that the presumption was in 
 favor of such finding, and the fact that the 
 record did not otherwise show service would 
 not overthrow the presumption. The party 
 claiming the fact to be otherwise must allege 
 and prove such fact: Hale v. First Nat. 
 Bank, 50-643. 
 
 119. If there is notice, but it is illegal and 
 technically defective, and the court'holds it 
 sufficient and enters judgment, such judg- 
 ment is not void or subject to collateral at- 
 tack : Douglierty v. McManus, 36-657. 
 
 120. Where the judgment of the court 
 shows that there was notice of some kind, 
 and that the sufficiency of the service was 
 determined by the court in favor of its juris- 
 diction, the pi-oceedings cannot be regarded 
 as void for want of jurisdiction on account 
 of irregularities appearing in the record 
 V7hich affect the service. Such judgment 
 cannot be questioned in a collateral proceed- 
 ing but only upon appeal or otherwise as 
 provided by law: Woodbury v. Maguire, 
 42-339. 
 
 121. It will be presumed in such case that 
 due proof of all matters necessary to be 
 shown was made to the court upon whicli 
 the adjudication of the sufficiency of the 
 service was had : Tharp v. Brenneman, 41- 
 251. 
 
 122. Where a judgment was rendered ona 
 return of service which did not state the 
 date thereof, hM, that it was not subject to 
 collateral attack by a motion to vacate the 
 judgment filed four years after its rendition : 
 Wilson V. CoZZ, 49-468. 
 
 123. If there is notice, though defective, 
 the proceeding will not be void on account of 
 error of the court in holding the notice suffi- 
 cient : Bunce v. Bunce, 59-533. 
 
 124. Where a statute provided that notice 
 in a particular proceeding should be given, 
 such as the court might prescribe, and the 
 court ordered due notice to all concerned to 
 be given, and then entered on its record a 
 recital that service of notice of the proceed- 
 ing had been made, pursuant to the direction 
 
JURISDICTION, IV, b; V. 
 
 1007 
 
 Insufl&cient notice. — Errors and irregularities. 
 
 of the court, lield, that the determination 
 was sufficient and the judgment could not 
 ]}e attacked collaterally: Stanley v. Noble, 
 59-666. 
 
 125. Where the court necessarily deter- 
 mines, in rendering' judgment, that the serv- 
 ice of notice was sufficient, the correctness 
 of this ruling cannot be questioned in a col- 
 lateral proceeding: Fanning v. Krapfl, 68- 
 244. 
 
 126. Mere want of compliance with the 
 requirements of statute as to form of notice 
 and manner and time of service will not con- 
 stitute a want of notice, such as to render 
 the judgment void. If there is a mere de- 
 fect in the notice or service, it is subject to 
 correction on appeal, but cannot be relied on 
 as avoiding the judgment : Shea v. Quintin, 
 30-58. 
 
 127. For instance, where the notice directs 
 defendant to appear at the next term, but 
 does not name the term, a judgment rendered 
 in pursuance thereof will not be void for 
 want of jurisdiction. Such a case is one of 
 defective notice and not want of notice : De 
 Tar V. Boone County, 34-488. 
 
 128. Where the original notice and return 
 of the officer wei-e regular and sufficient, but 
 the copy delivei-ed was defective in errone- 
 ously stating the date of commencement of 
 the term of court in which defendant was re- 
 quired to appear, held, that the judgment 
 was not void and subject to collateral attack : 
 Irions V. Keystone Mfg. Co., 61-406. 
 
 129. Where some essential requirement of 
 the law going to make up and constitute no- 
 tice to the party is omitted, so that practically 
 the notice required by the law has not been 
 given, then there is such a fatal defect in the 
 substance of the notice that no jurisdiction 
 is conferred thereby ; but if a party has been 
 served with a notice which informs him of 
 the remedy sought and the time and place 
 he is required to appear, proceedings had in 
 conformity with such notice will not be held 
 void in a collateral proceeding, although 
 there are defects in the notice or service: 
 Lyon V. Vanatta, 35-521. 
 
 130. Where a defendant is personally 
 served with notice, a judgment of the court 
 by default will not be void for want of juris- 
 diction, although he was not served the 
 requisite number of days before the return 
 
 day, as required by law. Such a service will 
 be simply defective and not void : Darrah v. 
 Watson, 30-116. 
 
 131. Where there is a service insufficient 
 only in the manner of making it, a question 
 of jurisdiction is raised which the court may 
 decide, and if it does so decide erroneously, 
 its judgment though voidable is binding 
 until reversed and corrected on appeal : Myers 
 V. Davis, 47-325. 
 
 132. Service upon an agent upon whom 
 service against the principal is not author- 
 ized is not simply defective service, but 
 must be regarded as no service, and judg- 
 ment rendered in pursuance thereof will be 
 void for want of jurisdiction : State Ins. Co. 
 V. Granger, 62-272. 
 
 133. A motion to correct a judgment ren- 
 dered by default upon defective service must 
 be made in the lower court, or the error in 
 rendering such judgment cannot be reviewed 
 on appeal: Pratt v. Western Stage Co., 27- 
 363. 
 
 And further as to necessity of motion to 
 set aside default before appealing, see Ap- 
 peals, §g 197-200. 
 
 V. EeEOES Am) lEEEGULAEITIES AS AF- 
 
 FECTING JTTEISDICTION ; 
 JUKISDICTIOK. 
 
 WA^'T OF 
 
 134. Judgment not void for irregnl.irity : 
 
 A judgment cannot be attacked for irregular- 
 ity : Wright v. Marsh, 2 G. Gr., 94. 
 
 135. If the court has jurisdiction of the 
 parties and subject-matter of the action, a 
 judgment therein is conclusive as between 
 the parties so long as it remains unreversed : 
 Pattei-son v. Indiana, 2 G. Gr., 492. 
 
 13C. Although a judgment is so irregular 
 that on appeal it would have been reversed, 
 yet when the court had jurisdiction of the 
 subject-matter and defendant's person, such 
 irregularity will not constitute a defense to 
 an action thereon in another state : State of 
 Indiana v. Helmer, 21-370. 
 
 137. Where a court has jurisdiction of the 
 subject-matter, the fact that its judgment is 
 erroneous will not render it void and subject 
 to collateral attack : Stevenson v. Sonesteel. 
 30-286; Kennedy v. Independent School 
 Dist., 48-189; Hull v. Chicago, B. & P. K. 
 Co., 65-713. 
 
1008 
 
 JURISDICTION, V. 
 
 Errors and irregularities as affecting. 
 
 138. Action bronght in Tvrong connty: 
 
 Fraud cannot be predicated upon the fact of 
 bringing an action in a court liaving jurisdic- 
 tion, even tliough brouglit in the wrong 
 county : Leach v. Kdlin^ 36-144. 
 
 139. All erroneous eliangre of voniie will 
 not render the proceedings of tlie court to 
 whioli the change is taken, void for want of 
 jurisdiction : Marshall v. Kinney, 1-90. 
 
 140. Juilgmeiil excessive or unjust: Er- 
 ror in the judgment,, whether of law or fact, 
 which does not go to the jurisdiction of the 
 court, can only be taken advantage of by 
 writ of error or appeal, and cannot be made 
 the subject of collateral attack. So held where 
 it appeared that judgment was rendered for 
 a larger amount than claimed in the plead- 
 ings : Walker v. Sleight, 30-310. 
 
 141. Error in rendering judgment for a 
 greater amount than that for which the de- 
 fendant is liable will not make the judgment 
 void : Freemen v. Hart, 61-525. 
 
 142. The enforcement of a judgment ren- 
 dered by a court having jurisdiction to ren- 
 der it will not be restrained merely because 
 it is an improper or unjust judgment. The 
 proceedings of a court having jurisdiction 
 cannot be questioned collaterally, and are ab- 
 solutely binding until set aside by the tribunal 
 in which they occur, or are regularly reversed: 
 Burlington & M. R. R. Co. v. Hall, 37-620. 
 
 143. Relief not asked: Where the notice 
 advised defendant that plaintiff claimed the 
 foreclosure of a mortgage in the action, but 
 the prayer of the petition did not ask such 
 relief, held, that the sale of property on 
 special execution under such judgment, 
 where the sale might equally have been made 
 on a general execution under a personal 
 judgment rendered in the action, would not 
 be set aside, the error being purely technical : 
 O'Connell v. Cotter, 44-48. 
 
 144. Giirnishineiit under defective writ 
 of attaelnueut: A garnishment under an at- 
 tachment which was irregular on account of 
 the writ bearing the seal of the wrong court, 
 but which upon motion in the case was cor- 
 rected and declared valid, held not void so as 
 to be disregarded in a subsequent garnish- 
 ment proceeding between other parties : Rose 
 V. Des Moines Valley R. Co., 47-420. 
 
 145. Judgment leiore maturity of in- 
 debtedness: The fact that a portion of the 
 
 notes covered by a mortgage are not due at 
 the time decree of foreclosure of the mort- 
 gage is entered as to such notes, as well as 
 to others which are due, will not render the 
 judgment void : Carr v. Hunt, 14-208. 
 
 14C. Eefusal of jury trial or other erro- 
 neous action of the court will not oust juris- 
 diction of the court, and the proper remedy 
 for such error is by appeal : State v. Schmidtz, 
 65-556. 
 
 147. Orders in bankruptcy: A discharge 
 in bankruptcy granted by a couit having 
 power to adjudicate cases in bankruptcy is 
 conclusive of the fact of a discharge, unless 
 impeached for fraud : Wright v. Watkins, 2 
 G. Gr., 547. 
 
 148. An order in bankruptcy made by a 
 court having jurisdiction in such proceeding 
 concerning an estate or the appointment of a 
 provisional assignee, although it may be ir- 
 regular and erroneous, cannot be treated as 
 void in an action by the assignee in relation 
 to the estate: Raymond v. Morrison, 59-371. 
 
 149. The action of township trustees 
 under a statute authorizing them, upon a 
 petition signed by a given proportion of the 
 tax-payers, to submit to vote the question of 
 aiding in the construction of a railway, is not 
 subject to collateral attack, and can only be 
 assailed in a direct proceeding: Ryan v. 
 Varga, 37-78. 
 
 1.50. Foreign jndgrments not assailable 
 for error: An error in a foreign judgment, 
 if the court rendering it had jurisdiction, 
 cannot be taken advantage of as a defense to 
 an action brought thereon: Olds v. Qlaze, 
 7-80. 
 
 151. The fact that the summons under 
 which a foreign judgment is rendered ap- 
 pears not to have been served by any oiHcer 
 known to the law or authorized to serve such 
 writSi held not sufScient to show a want of 
 jurisdiction : Struble v. Malone, 3-580. 
 
 152. Although a judgment is so irregular 
 that on appeal it would have been reversed, 
 yet when the court has jurisdiction of the 
 subject-matter and defendant' s person, such 
 iiTegularity will not constitute a defense to 
 an action thereon in another state : State of 
 Indiana V. Helmer, 21-37J. 
 
 153. A foreign judgment cannot be void 
 for want of jurisdiction, when the record 
 shows that the parties appeared and tried 
 
JURISDICTION, V, VI. 
 
 1009 
 
 Want of. — Judgments in personam and in rem. 
 
 the case upon its merits in a court having 
 jurisdiction of the subject-matter: Danforth 
 V. Thompson, 34^343. 
 
 154. Want of jurisdictiou may be shown 
 as against foreign judgment: In au action 
 upon a judgment, where defendant admits 
 the record upon which the action is brought, 
 but in avoidance alleges that the court ren- 
 dering such judgment had no jurisdiction by- 
 reason of want of service or appearance, the 
 defendant has the burden of proof : Lowe v. 
 .Lowe, 40-330. 
 
 155. While in an action upon a foi'eign 
 judgment the presumption is in favor of the 
 court's jurisdiction, the defendant may by 
 evidence overcome such presumption, not- 
 withstanding the certified 'copy of the judg- 
 ment entry recites that he was duly served 
 with process : Pollard v. Baldwin, 23-338. 
 
 Further as to presumptions in favor of for- 
 eign judgment, see supra, g§ 59-63. 
 
 156. In an action on a foreign judgment, 
 the return of the answer in the action of 
 which the judgment was rendered showing 
 service may be contradicted by parol evi- 
 dence : Weibster v. Hunter, 50-315. 
 
 157. Where a judgment or decree rendered 
 in another state is introduced in evidence, it 
 is competent to establish by parol that the 
 court had no jurisdiction: State v. Fledk, 
 54r439. 
 
 158. Where a foreign judgment is relied 
 upon, it is competent for the party reciting 
 it to show facts extrinsic to the record or in- 
 consistent with it, to prove that the court 
 rendering it had not jurisdiction : O'Bourlce v. 
 Chicago, M. & St. P. B. Co., 55-333. 
 
 Further as to actions on foreign judgments, 
 see Judgments, §§ 493-499. 
 
 159. Jurisdiction acq[uired by fraud: 
 The fact that jurisdiction of defendant was 
 procured by fraud may be set up in an ac- 
 tion upon a judgment rendered in another 
 state: Dunlapv. Cody, 81-360. 
 
 160. It is not necessary in such case that 
 defendant appear in the jurisdiction render- 
 ing the judgment and ask to have such 
 judgment set aside for fraud : Ibid. 
 
 lUl. A judgment may be impeached for 
 fraud in an action brought thereon, when it 
 is obtained in evasion of the courts, where it 
 is sought to be enforced : Ibid. 
 
 162. Fraud in prosecuting a case to 
 Vol. 1 — 64 
 
 judgment in the absence of defendant, after 
 inducing him not to defend by representa- 
 tions that the case would be dismissed, held 
 sufficient to defeat a foreign judgment when 
 it was sought to enforce it : Rogers v. Gwinn, 
 31-58. 
 
 163. Entire want of jurisdiction: A 
 party is not obliged to sue out a writ of error 
 to reverse a void judgment. He may wait 
 until the judgment is sought to be enforced 
 and then attack it collaterally, but in case of 
 an erroneous judgment, if he sleeps upon his 
 rights his remedy is lost: Heed v. Wright, 
 2 G. Gr., 15. 
 
 164. If a judgment is absolutely void upon 
 its face, it may be impeached collaterally : 
 Ibid. 
 
 165. Judgment under uncoustitutional 
 law: AU proceedings under an unconstitu- 
 tional law are not mere errors or irregulari- 
 ties, but absolutely void: Ibid. 
 
 YI. Judgments in personam ajstd in 
 
 EEM. 
 
 166. Judgment againstnon-resident: The 
 
 legislature cannot, by any enactment, con- 
 fer upon a court of the state jurisdiction over 
 the person of a citizen of another state : Weil 
 V. Lowenthal, 10-575. 
 
 167. Service by publication or by personal 
 service without the state, upon one who is 
 not a citizen or resident, confers no jurisdic- 
 tion either as to the person or property of 
 such non-resident, other than is acquired in 
 rem : Darrance v. Preston, 18-396. 
 
 168. The judgment of a court of an- 
 other state against a non-resident not served 
 with notice within the jurisdiction, and mak- 
 ing no appearance, has no binding force nor 
 effect upon him in personam, and an action 
 thereon cannot be maintained in this state : 
 Melhop V. Doane, 31-397. 
 
 169. Actual service outside the state: Act- 
 ual personal service without the state upon 
 a person not a resident or citizen of the state 
 merely stands in the place of notice by pub- 
 lication, and does not confer jurisdiction to 
 render a personal judgment : Weil v. Lowen- 
 thal, 10-575 ; Bates v. Chicago & N. W. B. 
 Co., 19-360; Hakes v. Shupe, 37-465; Dar- 
 rance V. Preston, 18-396 ; Lutz v. KeUy, 47- 
 307. 
 
1010 
 
 JURISDICTION, VI. 
 
 Judgments in personam and in rem. 
 
 170. Service by publication or personal 
 service without the state upon a person who 
 is not a resident or citizen of the state con- 
 fers no jurisdiction upon the person. It 
 simply authorizes the court to conclude the 
 rights and interests of the non-resident in 
 property over which the court, by process of 
 attachment or otherwise, has acquired juris- 
 diction in rem, and to subject such property 
 to sale in satisfaction of the amount found 
 due. A personal judgment in such a case is 
 a nullity: lm,tz v. Kelly, 47-307. 
 
 1 71. Service within the state upon citi- 
 zen of another state will give a court jmisdic- 
 tion, although he is but temporarily within 
 the jurisdiction at the time of service : Dar- 
 rah V. Watson, 36-116. 
 
 172. Procuring service upon non-resi- 
 dent within the state by fraud: But if the 
 person upon whom the service is thus made 
 has been brought within the jurisdiction by 
 fraud, as, for instance, by false statements 
 as to the purpose for which his presence is 
 desired, and concealment of the fact that it 
 was intended to serve notice upon him 
 when brought within such jurisdiction, the 
 court will not entertain the jurisdiction thus 
 sought to be acquired : Dunlap v. Cody, 31- 
 260. 
 
 1 73. The rule, that if a person residing in 
 one jurisdiction be induced under false pre- 
 tenses and representations to come within 
 another for the purpose of there getting serv- 
 ice upon him, the jurisdiction will be there 
 held fraudulent and the judgment void, 
 has no application in a suit against a non- 
 resident to subject debts due to him by a cor- 
 poration operating a line of railway within 
 the state: Mooney v. Union Padfio R. Co., 
 60-346. 
 
 As to fraud in obtaining jurisdiction, see 
 »ttpm, §§159-163. 
 
 As to jurisdiction acquired by abuse of 
 process in civU and criminal cases, see 
 COTOTS, §§ 376-380. 
 
 174. Service by publication does not con- 
 fer personal jurisdiction: Judgments in 
 •personam cannot be rendered where jurisdic- 
 tion is acquired by publication only : Doolit- 
 tle V. Shelton, 1 G. Gr., 373. 
 
 175. Where the action is improperly com- 
 menced by publication, defendant being a 
 resident of the state, and he enters an appear- 
 
 ance without service of notice, the jurisdic- 
 tion is not in rem only, but is personal to the 
 same extent that it would have been if he 
 had been personally served: Equitable L. 
 Ins. Co. V. Oleason, 66-47. 
 
 170. Jurisdiction by publication lim- 
 ited: Jurisdiction can be acquired through 
 service by publication only by compliance 
 with the statute authorizing such service, 
 and judgments in such cases stand upon the 
 same footing as those of limited jurisdiction : 
 Bradley v. Jamison, 46-68. 
 
 177. In such cases, presumption as to the 
 fact of publication will not be indulged in to 
 support the jurisdiction: Miller v. Corbin, 
 46-150. 
 
 178. Judgment upon publication in at- 
 tachment proceeding's: It is error to enter a 
 judgment in personam upon service by pub- 
 lication in a proceeding for attachment 
 against a non-resident: Wilkie v. Jones, 
 Mor., 97. 
 
 1 79. In such a case, judgment should be 
 in rem only, and a personal judgment would 
 be void, even though the attached property 
 were sold thereunder: Smith v. Griffin, 59- 
 409. 
 
 180. A judgment in an attachment pro- 
 ceeding upon service! by publication binds 
 only the property attached, and cannot be 
 enforced in personam, and other property 
 than that seized under the attachment can- 
 not be sold, nor can the attachment operate 
 as a lien upon other property: Banta v. 
 Wood, 83-469; Mayfield v. Bennett, 48-194. 
 
 181. Therefore, held, that where an action 
 by attachment was brought upon a note with- 
 out reference to the mortgage given to sectu:e 
 it, the mortgaged property not levied on 
 under the attachment could not be sold under 
 the execution : Banta v. Wood, 33-469. 
 
 182. Where a suit is commenced for at- 
 tachment upon service by publication only, 
 and no property is attached, the judgment 
 is a nullity: Judah v. Stephmson, 10-493; 
 Cooper V. Smith, 35-369. 
 
 183. The court acquires no jurisdiction in 
 an attachment proceeding upon service by 
 publication, unless the property of defendant 
 is attached: Wells v. Sequin, 14^143. 
 
 184. Where, in an action by attachment 
 against a non-resident, no property was levied 
 on in the county, but a levy was made in 
 
JURISDICTION, VI, VII. 
 
 1011 
 
 Judgments in rem. — In actions against minors, insane persons, etc. 
 
 another county to which, upon subsequent 
 appeai-ance of defendant in the action and 
 motion to change the venue, the cause was 
 transferred, held, that the lien of the attach- 
 ment was valid from the date of the levy, 
 and took precedence of an attachment In 
 another action brought in the county in 
 which the property was situated before the 
 change of venue in the first action was had 
 to that county: Laird v. Dickerson, 40-665. 
 
 185. Where notice of garnishment is served 
 in an attachment proceeding commenced by 
 publication, but no debt due the defendant 
 is reached thereby, the court acquires no 
 jurisdiction, and cannot, by a subsequent 
 proceeding, subject a debt afterwards coming 
 into existence: Morris v. Union Pacific R. 
 Co., 56-135. 
 
 186. The fact that a writ of attachment 
 issues against defendant as a non-resident 
 does not render the proceedings in rem, where 
 it appears that defendant was personally 
 served : Darrah v. Watson, 36-116. 
 
 187. In a suit against a non-resident by at- 
 tachment upon service by publication, a debt 
 due for personal services rendered by such 
 non-resident in the state of his residence, and 
 payable there, may be subjected, by garnish- 
 ment of his creditor in this state, to the pay- 
 ment of a claim, although by the laws of the 
 state of his residence the debt would be 
 exempt from execution: Mooney v. Union 
 PadfioE.Co., 60-346. 
 
 188. In proceedings for divorce com- 
 menced by publication of notice, the court 
 acquires jurisdiction to allow alimony: 
 Harshberger v. Harshberger, 36-503 ; Tviing 
 V. OMeara, 59-326. 
 
 189. Proeeedings in rem conclusiye: A 
 proceeding in rem, whatever disposal the 
 court makes of the property by sale or trans- 
 fer, will be valid, wherever the question of 
 title thereto comes either directly or indi- 
 rectly in question: Melhop v. Doane, 81- 
 397. 
 
 190. So far as property is seized and sub- 
 jected to sale in a proceeding in rem, defend- 
 ant is precluded from recovering in an action 
 against the plaintiff the value of such prop- 
 erty thus seized and sold: Ibid. 
 
 191. Proceedings against boats and rafts: 
 In a proceeding in rem against a boat, the 
 issuance of a wan-ant and seizure of the boat 
 
 thereunder are essential to the jurisdiction: 
 Ham V. Steamboat Hamburg, 3-460. 
 
 Further as to proceedings against boats or 
 vessels, see Actions, V. 
 
 YII. In actions a&ainst minoes, in- 
 sane PERSONS, ETC. 
 
 As to service upon minor, see Original 
 Notice. 
 
 As to setting aside judgment against minor, 
 see Judgment. 
 
 Minors or insane persons as parties, see 
 Parties. 
 
 192'. Service upon minor: Unless there is 
 complete service upon a minor defendant, the 
 court has no jurisdiction to appoint a guard- 
 ian ad litem, or make any order prejudicial 
 to defendant's rights, but if the service is 
 sufficient in fact and the return only is de- 
 fective, the minor defendant cannot after- 
 ward, in a collateral proceeding, attack the 
 judgment as void : Moomey v. Maas, 23-380. 
 
 193. The judgment of a court as to the 
 sufficiency of notice in an action against a 
 minor can only be questioned on appeal, and 
 cannot be attacked collaterally: Tharp v. 
 Brenneman, 41-251. 
 
 194. Appearance for minor: A judgment 
 against a minor upon appearance by attorney, 
 while irregular, is not void. Objection to 
 the judgment cannot be raised in an action 
 thereon in another state, but must be taken 
 advantage of in the state where rendered and 
 by a du-ect proceeding. Such an error does 
 not go to the jurisdiction of the court : Milne 
 V. Van Buskirk, 9-558. 
 
 195. Failure to appoint a guardian ad 
 litem in an action against a minor in which 
 the court has acquired jurisdiction will ren- 
 der the judgment voidable only and not void, 
 and it can only be attacked in a collateral 
 proceeding. Injunction to restrain its en- 
 forcement win not lie: Drake v. Hanshaw, 
 47-291 ; Myers v. Davis, 47-325. 
 
 196. Service of notice by publication 
 upon a minor gives the court jurisdiction to 
 appoint a guardian ad litem, although it has 
 not authority to render a personal judgment, 
 and a failure to appoint a guardian ad litem, 
 will not render the judgment absolutely 
 void: Hoover V. Kinsey Plow Co., 55-668. 
 
 197. In partition: A judgment in an 
 action for partition of land belonging to 
 
1012 
 
 JURORS. 
 
 List. — Drawing. 
 
 minors and adults is conclusive against such 
 minors, and a judgment for costs in the pro- 
 ceeding is binding upon them: Johnson v. 
 Carson, 3 Q. Gr., 499. 
 
 198. Actions against insane persons: 
 Probate jurisdiction over the persons and 
 property of insane persons does not exclude 
 the jurisdiction of a court of law ixx an action 
 agaiast an insane person with reference to 
 his property : Flock v. Wijatt, 49-466. 
 
 JURORS. 
 
 As to the selection of trial jurors in civil 
 cases, challenge, etc., see Pkactic33, III, a; 
 and' as to the same matters in criminal 
 cases, see Criminal IiAW, III, 10, b. 
 
 1. Jnrylist: The requirement that jurors 
 shall be chosen from the body of the county 
 is intended to prevent the selection of jurors 
 resident out of the county, and does not re- 
 quire that jurors shall be taken from all parts 
 of the county ; therefore, held, that a statute 
 authorizing the holding of the district court 
 in two places in a county, and providing that 
 when held at one of these places, the juris- 
 diction should be limited to certain town- 
 ships, and the jurors should be selected from 
 only these townships, did not interfere with 
 the right of trial by jury : Trimhle v. State, 
 3 G. Gr., 404. 
 
 2. But one jury list of petit jurors is con- 
 templated, from which the jurors for both 
 the district and circuit courts are to be drawn : 
 State V. Lavrrence, 38-51. 
 
 3. That eighty-flve instead of seventy-flve 
 names were returned from which to select 
 the grand jury, and the extra names were 
 stricken off before the grand jury was drawn, 
 held not an irregularity: State v. Knight, 
 19-94. 
 
 i. A failure to record the names returned 
 on the grand jury list does not invalidate 
 proceedings of the grand jury drawn there- 
 from : Ibid. ; State v. Howard, 10-101. 
 
 5. Where the judges of election and county 
 canvassers each failed to make out and re- 
 turn names of jurors for one election pre- 
 ciact, but two names were supplied by the 
 board of supervisors, which two jurors, how- 
 ever, were not drawn upon the grand jury, 
 hdd, that the irregularity did not vitiate an 
 indictment : State v. Brandt, 41-593. 
 
 6. No formal certificate of the judges of 
 election to the lists so returned is necessary, 
 though it would be proper. Where the 
 record in the record book shows due and 
 proper selection, the presumption is that 
 such record was the result of the list duly 
 made. When the law has been substantially 
 complied with, an indictment should not be 
 set aside for slight irregularities in such 
 matters : State v. Ansaleme, 15-44. 
 
 7. It is not required that the records of the 
 board of canvassers shall show that the selec- 
 tion of jurymen was made for precincts 
 from which no returns were sent in: State 
 V. Carney, 30-82. 
 
 8. A substantial compliance with the pro- 
 visions of the law relating to the selection 
 of jurymen is all that is required : Ibid. 
 
 9. Drawing: Before the amendment of 
 Code, S 340, by 17 G. A., ch. 184, hdd that, it 
 not being provided that the deputy sheriff 
 might act in the place of the sherifE in draw- 
 ing the jury, a drawing in which he acted 
 would be invalid: State v. Brandt, 41-593, 
 603; Dutell v. State, 4 G. Gr., 135. 
 
 10. Summoning: Service of the precept 
 may be made by the deputy sheriff and 
 special constables : State v. Arthur, 39-631. 
 
 11. New precept: The provision of Code, 
 § 344, authorizing the setting aside of the 
 precept and causing a new precept to be 
 issued to the sheriff commanding him to 
 summon a sufficient number of persons to 
 serve as jurors at the term, does not apply 
 to a case in which a sufficient number of 
 grand jurors fail to appear as contemplated 
 in Code, § 4356: State v. Pierce, 8-331. 
 
 12. Where the list of jurors was accidentr 
 ally destroyed, it was held proper for. the 
 court to order a new precept. Under such 
 precept, commanding the sherifE to summon 
 a new jury from the body of the county, 
 held, that a jury taken from ten out of twenty 
 townships in the county was sufficient: State 
 V. Arthur, 39-631. 
 
 13. The fact that the jury is fiUed up by 
 persons specially summoned is. not a valid 
 ground of objection when no abuse of discre- 
 tion on the part of the court is shown: 
 Emerick v. Sloan, 18-139. 
 
 14. The provisions of Code, §§ 333, 344, for 
 an additional drawing, and for setting aside 
 the precept and issuing a new one, relate to 
 
JURORS — JUSTICES OF THE PEACE, I, a. 
 
 1013 
 
 Qualification of jurors. — Jurisdiction of justices in general. 
 
 jurors for the term, for tlie trial of all oases, 
 where the panel is not full, and have no ref- 
 erence to the manner in which a jury may be 
 obtained for the trial of a criminal action, 
 where the regular panel is exhausted : State 
 V. Ryan, 70 . 
 
 15. Qualifications of jurors: Under cer- 
 tain facts, held, that a juror was incompetent 
 as not being a qualified elector: State v. 
 Oroome, 10-308. 
 
 16. So, held, that an objection to the com- 
 petency of a juror should be interposed when 
 he is^ sworn, but if not then known, may be 
 interposed after verdict : Ibid. 
 
 17. A judgment rendered upon a verdict 
 by a jury, some members of which are dis- 
 qualified, is erroneous, but not void ; it might 
 be reversed upon appeal, but it cannot be 
 disregarded as a nullity : Foreman v. Hunter, 
 59-550. 
 
 18. Exemption from jury service is not a 
 cause of challenge but a privilege to the 
 person exempt : State v. Adams, 20-486. 
 
 19. Excusing, jurors: That jurors have 
 been excused on their own statements, not 
 under oath, is not ground of objection by the 
 defendant in a criminal case, and he cannot 
 have an attachment issued to compel the at- 
 tendance of those so excused: State v. Os- 
 trander, 18-435, 448. 
 
 20. Filling tlie panel: The fact that va- 
 cancies in the jury panel are fiUed by tales- 
 men instead of by the additional drawing 
 contemplated in Code, § 233, is not ground of 
 challenge to the panel, and can be raised, 
 if at aU, only by challenge to such tales- 
 men when drawn: Buford v. McGetchie, 60- 
 298. 
 
 21. No penalty is attached for a failure to 
 comply with the provision for drawing addi- 
 tional jurors to fill the panel. It must be re- 
 garded as directory, and a simple disregard of 
 its provisions, where error does not affirma- 
 tively appear, is not sufficient to authorize 
 reversal of the judgment: State v. Harris, 
 64-287; Brentner v. Chicago, M. & St. P. 
 R. Co., 68-530. 
 
 22. By Code, § 239, it is a cause of challenge 
 that a juror not on the regular panel has 
 served on the jury within one year : Barnes 
 V. Newton, 46-567. 
 
 23. Compensation : Where a case before a 
 justice of the peace is commenced in one 
 
 week and extends into the next, Sunday 
 should not be computed in the number of 
 days of service: Anson v. Dwight, 18-241. 
 
 JUSTICES OF THE PEACE. 
 
 I. Jurisdiction. 
 
 a. In general. 
 
 b. As prescribed by statute. 
 II. Venue. 
 
 a. Place of bringing suit. 
 
 b. Change of venue. 
 
 c. Place of trial. 
 
 III. COMMENOBMBNT OF ACTION; APPEAR- 
 
 ANCE; PLEADING. 
 
 a. Notice. 
 
 b. Appearance. 
 
 c. 'Pleadings. 
 
 IV. Trial and judgment. 
 
 a. Incidents of the trial. 
 
 b. Dismissal or nonsuit and default. 
 
 c. Judgment; its entry and enforce- 
 
 ment. 
 V. Appeals and writs of error. 
 
 a. Appeal and trial anew. 
 
 b. Writ 'of error and proceedings 
 
 thereunder. 
 VI. Attachment and garnishment. 
 VII. Remedy for forcible entry oe deten- 
 tion OF REAL property. 
 
 As to jurisdiction and procedure in crim- 
 inal cases, see Criminal Law, III, 2; III, 
 6; IV. 
 
 As to civil liability for official acta, see 
 Officers, §§ 146-155. 
 
 As to fees, see Officers, §§ 220-222. 
 
 I. JUEISDICTION. 
 
 a. In general. 
 
 1. Limited: Justices of the peace having no 
 powers except as given them by statute, pos- 
 sess only limited jurisdiction, and their offi- 
 cial acts, to be valid, must be in accordance 
 with the provisions of statute: Cooh v. 
 United States, 1 G. Gr., 39. 
 
 3. Must appear: In a court of inferior ju- 
 risdiction such as that of a justice of the 
 peace, the record must show the facts which 
 confer the jurisdiction or his judgment is 
 void : Ooodrich v. Brown, 30-291. 
 
1014 
 
 JUSTICES OF THE PEACE, I, a, b. 
 
 Jurisdiction in general. — As prescribed by statute. 
 
 3. Presumption fit regularity: i It may 
 
 be presumed in favor of the judgment of a 
 justice of tlie peace tliat acts which are 
 shown to have been done were done in such 
 order as was necessary in order that the 
 jurisdiction should be properly exercised: 
 Hodge v. Ruggles, 36-42. 
 
 4. Thus where it appeared that under the 
 statutes of another state action might be 
 brought before a justice in the township 
 of the residence of plaintiff or defendant, or 
 in an adjoining township, held, in an action on 
 a judgment of a justice of such state, it be- 
 ing shown that the township in which the 
 judgment was rendered was not that of the 
 residence of plaintiff or defendant, it would 
 be presumed that it was an adjoining town- 
 ship, the contrary not appearing : Church v. 
 Grossman, 49-444. 
 
 5. While it may be that the decision of a 
 justice of the peace that he has jurisdiction is 
 presumed to be right until the contrary is 
 shown, yet where the assumption upon 
 which the decision is based appears, and the 
 decision is thereby shown to be erroneous, 
 the presumption in favor of the justice's ju- 
 risdiction is thereby rebutted: Brown v. 
 Davis, 59-641. 
 
 6. Jurisdiction having onoe been acquired 
 by a justice of the peace, the presumption is 
 that it continues to judgment, in the absence 
 of a showing to the contrary: Moore v. 
 Beeves, 47-30. 
 
 7. Therefore where judgment was ren- 
 dered against a garnishee on his answer 
 more than three days after it was filed, held, 
 that it would be presumed that the case was 
 properly continued to the day judgment was 
 rendered: Ihid. 
 
 8. Where a justice has acquired jurisdic- 
 tion, subsequent proceedings are deemed 
 regular and cannot be collaterally assailed. 
 Therefore, held, that a recital on the justice's 
 docket of continuance by agreement could 
 not be contradicted by aflSdavits denying 
 
 such agreement: Caughlin v. Blake, 55- 
 634. 
 
 9. So, also, the recitals of the justice's rec- 
 ord as to the time in the day at which default 
 is entered is conclusive as against collateral 
 attacji : Cory v. King, 49-365. 
 
 10. The correctness of a judgment as to a 
 question arising in a case of which the jus- 
 tice has jurisdiction cannot be questioned in 
 an action hj scire facias on the judgment: 
 Haggarty v. Burr, 33-319. 
 
 b. As prescribed iy statute? 
 
 11. Action against resident of another 
 county ; consent: A justice does not acquire 
 jurisdiction over an action against a resident 
 of another county, even though he appear 
 and proceed to trial without objection : Chap- 
 man V. Morgan, 3 G. Gr., 374; Bayer v. 
 Moore, 43-544; McMeans v. Cameron, 51- 
 691. 
 
 12. Service within township: The justice 
 does not acquire jurisdiction, by notice served 
 in the township where suit is brought, upon 
 a resident of another county, and a judg- 
 ment rendered thereon is void. Defendant 
 is not required to appear and plead, suggest- 
 ing want of jurisdiction : Hamilton v. Mill- 
 house, 46-74. 
 
 13. Attachment: If the suit is for money 
 against an actual resident of another county, 
 the fact that an attachment js sought 
 against property in the county in which suit 
 is brought will not confer jurisdiction : Oates 
 v. Wagner, 46-355. 
 
 14. What constitutes residence in the 
 county : A resident of one county went with 
 his family to another county to reside there 
 temporarily, boarding at a hotel while build- 
 ing a school-house under a contract, with in- 
 tention of returning to his former home when 
 the work was completed. Held, that he did 
 not become a resident of the latter county so 
 as to give a justice of the peace of that 
 
 ' Code, § 3669. Tlie future proceedings of all officers, and of all courts of limited and inferior jimsdiction 
 within this state, slmll, like those of a general and superior jurisdiction, be presumed regular, except in regard 
 to matters required to be entered of record, and except where otherwise expressly declared. 
 
 " Code, § 3507. The jurisdiction of justices of the peace, when not specially restricted, is co-extensive with 
 their respective counties, but does not embrace suits for the recovery of money against actual residents of any 
 other county, except as provided in section three thousand five hundred and thirteen of this chapter. 
 
 I 3o08. Within the prescribed limit, it extends to all civU cases, except eases by equitable proceedings, where 
 the amount in controversy does not exceed one hundred dollars; and, by consent of parties, it may be ex- 
 pended to any amount not exceeding three hundred dollars. 
 
JUSTICES OF THE PEACE, I, b. 
 
 1015 
 
 Jurisdiction as prescribed by statute. 
 
 county jurisdiction in an action against him : 
 Bradley v. Fraser, 54-289. 
 
 15. It is actual and not legal i-esidence that 
 is contemplated by the statute. The fact 
 that defendant's domicile is in another county 
 than that in which suit is brought does not 
 prove that he is an actual resident of such 
 other county, though that may be his legal 
 residence. Therefore, held, that a contractor 
 upon a railroad who had resided in another 
 county for seven years and was absent from 
 that county only for the purpose of con- 
 structing such railroad and expected to re- 
 turn to that county as soon as the job upon 
 which he was at work should be completed, 
 was not an actual resident of such other 
 county within the meaning of this section, 
 it appearing that he was living and keeping 
 house with his family during the time that 
 he was performing his contract in the county 
 where suit was brought : Fitzgerald v. Arel, 
 63-104. 
 
 16. A person may be engaged in business 
 in a county and personally present superin- 
 tending it, and yet not be an actual resident 
 of the county : Fitzgerald v. Grimmell, 64r-361 . 
 
 17. Suits against copartners: Where suit 
 is brought before a justice of the peace against 
 two persons jointly, as partners, and one of 
 such partners is resident of another county, 
 the justice of the peace acquires no jurisdic- 
 tion as to such partner by service upon him 
 in the county of his residence. The justice 
 may acquire jurisdiction to render judgment 
 against the firm by service upon the resident 
 partner, but not as against the non-resident 
 partner individually: Ebersole v. Ware, 59- 
 663. 
 
 18. For business purposes and the service 
 of process the partnership should be regarded 
 as a resident of each county in which busi- 
 ness is done, in so far as to allow suits to be 
 brought against it in any of said counties. 
 The partnership may have a residence for 
 purposes of business, which need not be at 
 the same place as that of the partners or 
 either of them : Fitzgerald v. Orimmell, 64- 
 261. 
 
 19. A justice of the peace may have juris- 
 diction of an action against a partnership 
 doing business in his county, although the 
 partners are actual residents of other coun- 
 ties: Ibid. 
 
 20. Telegraph and telepliono compa- 
 nies: The statutory provision (Code, § 2582) 
 as to the place of bringing action against 
 telegraph companies is applicable also to 
 telephone companies, and authorizes an action 
 against such company to be brought before a 
 justice of the peace in any county through 
 which the line of such company passes, al- 
 though such county be not that of the resi- 
 dence of the company : Franklin v. North- 
 western Telephone Co., 69-97. 
 
 21. Insurance company; place of loss: 
 Notwithstanding the provisions of Code, 
 § 3507, the justice is authorized under the 
 general provisions of Code, g 3584, with ref- 
 erence to the place of bringing action against 
 insurance companies, to entertain an action 
 on a policy of insurance in a county where 
 the loss occurred, although the company is 
 an actual resident of another county : Hunt 
 V. Farmers' Ins. Co., 67-742. 
 
 22. Amount in controversy; claim: The 
 amount claimed, and not the amount ap- 
 pearing to be due on the instrument in suit, 
 is the criterion for jurisdiction: Stone v. 
 Murphy, 3-35. 
 
 23. Determined by pleadings, not by 
 judgment: If the amount in controversy, as 
 shown by the pleadings, exceeds one hundred 
 dollars, the justice has no jurisdiction even 
 to render judgment for one hundred dollars 
 or less : Gillett v. Richards, 46-653. 
 
 24. Where the notice shows that the claim 
 is for more than one hundred dollars, defend- 
 ant may properly disregard it, and nothing 
 can afterwards be done by the plaintiff by 
 which the justice can acquire jurisdiction; 
 and in such a case, held, that if such defend- 
 ant appeared and demurred to the jurisdic- 
 tion, the plaintiff could not give the justice 
 jurisdiction by filing his petition for an 
 amount within the jurisdiction of the jus- 
 tice : Hynds v. Fay, 70 . 
 
 25. Where the amount claimed by the 
 plaintiff is such as to bring the case within 
 the jurisdiction of a justice of the peace, the 
 fact that he erroneously renders judgment 
 for an amount in excess of his jurisdiction 
 will not render his judgment void, and the 
 excess may be remitted : Reed v. Shum, 63- 
 378. 
 
 26. Account: In an action on account for 
 a balance within the jurisdiction of a justice, 
 
1016 
 
 JUSTICES OF THE PEACE, I, b. 
 
 Jurisdiction as prescribed by statute. 
 
 the entire account is in controversy, although 
 the recovery cannot exceed the amount 
 claimed: Hall v. Biever, Mot., 113. 
 
 27. Attorney's fee: The amount of attor- 
 ney's fee provided for in the note is not to be 
 taken into consideration in determining the 
 amount in controversy, the attorney's fee 
 being part of the costs: Spiesberger v. 
 Thomas, 59-606. 
 
 28. Counter-claim: In determining the 
 amount in controversy it is not proper to add 
 together the amounts of the original claim 
 and of a counter-claim: Madison v. Spits- 
 nogle, 58-369. 
 
 29. Interest included: Where the claim 
 stated in the notice was for one hundred dol- 
 lars with interest and costs, held, that such a 
 statement entitled plaintiff to interest on the 
 amount demanded, from the time of com- 
 mencement of suit, and therefore the amount 
 claimed was over one liundred dollars, and 
 the justice had no jurisdiction: Galley v. 
 Tama County, 40-49. 
 
 30. Determined by petition: But where 
 the petition claimed one hundred dollars, 
 and the notice stated that that amount was 
 claimed, but also stated that unless defend- 
 ant appeared, etc., judgment would be ren- 
 dered "for the whole amount with interest 
 and costs," held, that the amount claimed 
 did not exceed one hundred dollars, and the 
 justice had jurisdiction : Moran v. Murphy, 
 49-68. 
 
 31. Consent to jurisdiction beyond one 
 hundred dollars: A clause in a note giving 
 a justice of the peace jurisdiction in an 
 action thereon to the amount of three hun- 
 dred dollars will entitle plaintiff to bring 
 action thereon before any justice who, but 
 for the amount in controversy, would have 
 had jurisdiction without such clause. The 
 execution of such note and its acceptance by 
 payee constitute a suflBcient consent to give 
 the justice jurisdiction : Marshalliown Bank 
 V. Kennedy, 58-357. 
 
 32. Where a note dated and payable at Bes 
 Moines recited that judgment might be taken 
 thereon " before any justice in said county," 
 the only county mentioned therein being 
 that of the maker's residence, Dallas county, 
 held, that the specification did not operate to 
 give a justice of the peace in Polk county, 
 before whom action was properly brought. 
 
 jurisdiction of the case to an amount in ex- 
 cess of the amount of one hundred dollars : 
 Brown v. Davis, 59-641. 
 
 33. Attorney's fee: Where the claim was 
 for three hundred dollars, on a promissory 
 note with attorney's fees, it being stipulated 
 in such note that a justice of the peace 
 should have jurisdiction thereof, held, that 
 the claim as to attorney's fees was merely 
 descriptive of the note and did not make the 
 amount in controversy greater than three 
 hundred dollars: Long v. Loughran, 41- 
 543. 
 
 34. It is the fact of consent which gives 
 the justice jurisdiction where the amount in 
 conti'oversy exceeds one hundred dollars, 
 and if such fact exists, his judgment for 
 more than th^t amount will be valid even 
 though no record of the fact of consent ap- 
 pears : Schlisman v. Webber, 65-114. 
 
 35. In an attachment proceeding, the 
 amount in controversy is the claim plaintiflf 
 seeks to enforce, and not the value of the 
 attached property: Hoppe v. Byers, 39-573. 
 
 36. Garnishment: If the judgment is for 
 an amount within the jurisdiction of the 
 justice, he may, in a proper proceeding, ren- 
 der judgment against a garnishee for the 
 entire amount due under such judgment, al- 
 though, by reason of costs, the judgment 
 against the garnishee exceeds the sum for 
 which the justice may render judgment in an 
 original action. The proceeding by garnish- 
 ment is merely auxiliary to the original judg- 
 ment and follows it as an incident for its 
 enforcement: Gfillett v. Richards, 46-653; 
 Hodge v. Buggies, 36-42. 
 
 37. A justice of the peace, who has juris- 
 di(5tion of the indebtedness which is sought 
 to be recovered, by reason of consent of par- 
 ties, where the amount in controversy ex- 
 ceeds one hundred dollars, has also jurisdic- 
 tion of an attachment proceeding auxiliary 
 thereto, although there is no consent to juris- 
 diction for more than one hundred dollars as 
 to the attachment: Houghton v. Bauer, 
 70 . 
 
 38. Jurisdiction not exclusive: The juris- 
 diction of justices over cases where the 
 amount does not exceed one hundred dol- 
 lars is not exclusive : Nelson v. Oray, 3 G. 
 Gr., 897; Hutton v. DreUOns, 3 G. Gr., 598; 
 Chapman v. Morgan, 2 G. Gr., 374. 
 
JUSTICES OF THE PEACE, II, a, b. 
 
 101^ 
 
 Venue. — Place of bringing action ; change. 
 
 39. No equitable Jurisdiction : A justice 
 has no equitable jurisdiction : David v. Ryan, 
 47-643, 646. 
 
 40. Equitable relief not given on ap- 
 peal: Therefore, held, that where an action 
 was brought before a justice upon a note 
 blank as to amount, the plaintiff could not, 
 on appeal to the circuit court, ask a reforma- 
 tion of the note and judgment thereon as re- 
 formed, for the reason that he thereby sought 
 to introduce an equitable cause of action 
 which could not be tried before a justice : 
 Hollen V. Davis, 59^44. 
 
 II. Yenue. 
 a. Place of 'bringing action} 
 
 41. In Tvhat township: Defendant may- 
 be sued in any township where service is ob- 
 tained on him, provided he be a resident of 
 the county : Klingel v. Palmer, 42-166. 
 
 42. Suing in wrong townsliip: That a 
 suit before a justice is brought in the wrong 
 township is not grouud for change of venue. 
 Such fact should be pleaded in abatement. 
 "Whether a motion to dismiss would be 
 proper in such case, qucere: Meunch v. 
 Breitenbach, 41-527. 
 
 43. lu replevin and attachment suits the 
 jurisdiction of a justice (under Code, g 3511, 
 see foot-note), is not limited to the township 
 in which the defendant resides, or in which 
 the property may be found, but is co-exten- 
 sive with the county : Leversee v. Reynolds, 
 13-310; Riddle v. Allender, 14-410. ' 
 
 44. In such cases the justice has jurisdic- 
 tion throughout the county without regard 
 to the particular township in which the par- 
 ties reside or the property is situated. (Over- 
 ruling Meunch v. Breitenbach, 41-527): 
 Knowles v. Picket, 46-503. 
 
 45. But the justice does not have jurisdic- 
 tion of an action for the recovery of money 
 
 against a resident of another county, al- 
 though an attachment is sought in such ac- 
 tion against property in the county where 
 suit is brought : Gates v. V/agner, 46-355. 
 
 46. Kenioval of property from county: 
 These provisions relate to the location of 
 the property at the time the case is com- 
 menced, and not at the time it is seized 
 under the writ. The removal of the property 
 from the county after the commencement of 
 the action, but before seizure, will not de- 
 feat the jurisdiction of the justice or the 
 right to levy on the property : Craft v. 
 Franks, 34-504. 
 
 47. Suit on contract to be performed at 
 a particular place: A justice may entertain 
 jurisdiction in a suit upon a written contract 
 stipulating for payment in his township, al- 
 though the defendant be a resident of another 
 county, and not served within the township 
 where the suit is brought : Klingel v. Palmer, 
 42-166. 
 
 b. Change of venue. 
 
 48. Suit brought in wrong county or 
 township: The fact that suit is brought in 
 the wrong county is not a ground for change 
 of venue to the right county : Post v. Brow- 
 nell, 36-497. 
 
 49. Nor is the fact that suit is brought 
 in the wrong township a ground for such 
 change ; the objection is to be raised by plea 
 in abatement: Meunch v. Breitenbach, 41- 
 527. 
 
 50. Must be applied for before trial: It 
 is not error to refuse a change after the trial 
 is commenced: McKenney v. Hopkins, 20- 
 495. 
 
 51. "Where there was one trial in which 
 the jury disagreed, and the cause was con- 
 tinued ; and before the second trial an affi- 
 davit was filed asking a change, on the 
 ground that the justice was a material wit- 
 
 ' Code, % 3S09. Suits may in all oases be brought in the township where the plamtifiE or defendant, or one of 
 several defendants, resides. 
 
 § 3310. They may also be brought in any other township of the same county, if actual service on one or 
 more of the defendants is made in such township. 
 
 § 3311. Actions to recover personal property, and suits commenced by attachment, may be commenced in 
 any county and township wherein any portion of the property is found, and justices Shall have jurisdiction 
 therein within the county. 
 
 S3512. n none of the defendants reside in the state, suit may be commenced in any county and township 
 wherein either of the defendants may be found. 
 
 § 3513, On written contracts, stipulating for payment at a particular place, suit may be brought in the 
 township where the payment was agreed to be made. 
 
1018 
 
 JUSTICES OF THE PEACE, II, c; IH, a. 
 
 Venue ; place of trial. — Commencement of action ; notice. 
 
 ness for affiant, hdd, that the application 
 was made in time : Marshall v. Kinney, 1-580. 
 
 52. The change must be granted where a 
 motion and affidavit are filed complying 
 with the requirements of the statute: Ber- 
 ner v. Fraeier, 8-77. 
 
 53. Whether another jnstice of the 
 county can act at the request of the one be- 
 fore whom the suit is brought, but who, by 
 reason of relations with one of the parties, 
 deems that it would be improper for him to 
 try the case, doubted (under a statute, Code, 
 §3629, providing that "in case of sickness 
 or other disability, or necessary absence of a 
 justice at the time fixed for the trial of a 
 cause, . . . any other justice of the 
 township may at his request attend and 
 transact the business for him without any 
 transfer of the business to another office ") : 
 Ely V. Dillon, 31-47. 
 
 54. Nearest Jnstice; how determined: 
 Although the justice from whom the change 
 is taken commit an error in sending the case 
 to a justice who is not the nearest one in the 
 county to whom it might be sent, yet the 
 justice to whom the case is thus sent cannot 
 review such decision, and will have jurisdic- 
 tion, and his action cannot be collaterally 
 attacked: Tennis v. Anderson, 55-635. 
 
 55. It is necessary that the justice grant- 
 ing a change shall designate by name the 
 next justice to whom the case is sent. This 
 is a judicial determination, and in no other 
 way can it be known who is the proper jus- 
 tice to whom the case has been transferred. 
 Until the justice does determine and desig- 
 nate such nearest justice, the change of venue 
 is not complete and no other justice can ac- 
 quire jurisdiction: Bremner v. HalloweU, 
 59-433. 
 
 c. Place of trial. 
 
 56. Outside of township: The fact that, 
 by consent of parties, a trial before a justice 
 of the peace is had at a place outside his 
 township will not oust his jurisdiction : Sog- 
 ers V. Loop, 51-41. 
 
 III. Commencement of action; ap- 
 peaeance; pleadings. 
 
 a. Notice. 
 
 57. What sufflcient statement in: A 
 
 technical setting forth of the cause of action 
 
 is not demanded, but a notice stating it in 
 general terms, if sufficient to apprise the de- 
 fendant of the nature of the claim against 
 him, is all that is required : Vaiible v. Stew- 
 art, 85-879. 
 
 58. Where the cause of action stated in 
 thfe notice was " forty dollars damages in the 
 sale of oxen,'' plaintiff was allowed to prove 
 and recover upon a warranty made in such 
 sale ; and it was held that the notice suffi- 
 ciently set forth such cause of action : Dilley 
 V. Nusum, 17-338. 
 
 59. Where the' claim was upon a written 
 instmment of guaranty of a promissory note, 
 and the notice stated the claim as upon "a 
 promissory note," held, that the notice was 
 sufficient : Francis v. Bentley, 50-59. 
 
 60. Where the notice of suit in the justice's 
 court set out the cause of action as a claim 
 for a certain sum with interest, etc., etc., and 
 the petition filed on the return day claimed 
 to recover the same sum, with interest, etc., 
 upon a bond signed by defendant as surety, 
 held, that the petition was not based upon a 
 different cause of action from that stated in 
 the notice : Winneshiek County v. Sumpal, 
 61-172. 
 
 CI. Under notice of a claim for rqoney due 
 for "damages for the illegal and wrongful 
 taking and detention" of property, " and as 
 damages for the detention thereof," held, that 
 plaintiff could recover the value of property 
 wrongfully taken: Paden v. Griffith, 12-272. 
 
 62. Should state hour for appearance: 
 The notice should state the hour when de- 
 fendant is required to appear, and where the 
 notice fixed the time as " 11 o'clock M.," held, 
 that it was not sufficient : Hodges v. Brett, 4 
 a Gr., 345. 
 
 63. Return day : A notice in which the re- 
 turn day is left blank is of no validity: 
 Phinney v. Donahue, 67-192. 
 
 64. Place: In stating the place, it is not 
 essential that the notice give the township of 
 the justice : Johnson v. Dodge, 19-108. 
 
 65. Service upon agent: A service of 
 original notice upon the agent wiU not con- 
 stitute service upon the principal, though 
 the agent may bind the principal by ap- 
 pearance : Broxvn v. Newman, 18-546. 
 
 66. Defective notice or insufficient serv- 
 ice: A defective notice, if service is prop- 
 erly had, does not affect the jurisdiction of 
 
JUSTICES OF THE PEACE, III, b, o. 
 
 1019 
 
 Notice. — Appearance ; pleadings. 
 
 the court nor the validity of the proceeding. 
 If the justice err in holding the notice suffi- 
 cient, advantage thereof must be taken on 
 appeal if at all : Dougherty v. McManus, 36- 
 657. 
 
 67. Where the notice was served less than 
 five days previous to trial, held, that judg- 
 ment thereon was erroneous, but not void. 
 Judgment on a defective or insufficient 
 notice can only be attacked by appeal, and 
 not collaterally: Shea v. Quintin, 30-58; 
 BalUnger v. Tarhell, 16-491. 
 
 68. Error in rendering judgment on a de- 
 fective notice or insufficient service cannot 
 be corrected by writ of error unless a motion 
 to set aside the judgment is first made before 
 the justice: Leonard v. Hallem, 17-564; 
 Smith V. Parker, 28-359. 
 
 69. Effect of entire absence of notice: If 
 the justice has no jurisdiction by reason of 
 entii-e want of notice, the defendant need not 
 move for correction of the error in rendering 
 judgment against him, but may, if he knows 
 of the judgment in time, have the error cor- 
 rected by writ of error, or may afterward 
 bring an independent action to set it aside : 
 Holmes v. Hull, 48-177. 
 
 70. Evidence of service: The officer's re- 
 turn is the best evidence of the service of 
 notice and is not overcome by failure to enter 
 the fact of return of service on his docket : 
 Bridges v. Arnold, 37-231. 
 
 71. The notice is not '"process," and may 
 under some circumstances be served out of 
 the county, although it is provided that pro- 
 cess from a justice's court cannot issue into 
 another county (Code, § 3681): Klingel v. 
 Palmer, 42-166. 
 
 b. Appearance. 
 
 72. Voluntary appearance gives the jus- 
 tice jurisdiction as to the ^arty without any 
 service of notice whatever: Acres v. Han- 
 cock, 4-568. 
 
 73. The appearance waives any defect in 
 the notice : Houston v. Waloott, 1-86. 
 
 74. Appearance by motions for continuance 
 and for change of venue waives objection to 
 the notice or service: Shaffer v. Trimble, 
 2G. ar.,464. 
 
 75. Special appearance to object to suffi- 
 , ciency of service of notice confers jurisdic- 
 tion: Church V. Crossman, 49-444. 
 
 76. An appearance to cross-examine wit- 
 nesses, even though general appearance is 
 disclaimed, will confer jurisdiction : Eahn v. 
 Greer, 37-637. 
 
 77. Where the attorney of defendant was 
 present at the time set for trial and asked to 
 look at the papers, and told the justice that 
 he had no jurisdiction or authority to try the 
 case, held, that these acts did not constitute 
 an appearance giving the justice jurisdiction : 
 Holmes v. Hull, 48-177. 
 
 78. Where the justice has not jurisdic- 
 tion of the subject-matter, voluntary ap- 
 pearance will not confer jurisdiction ; for 
 instance, where defendant is a resident of 
 another county: McMeans v. Cameron, 51- 
 691 ; Boyer v. Moore, 43-544 ; Chapman v. 
 Morgan, 2 G, Gr., 374. 
 
 As to appearance in general, see Appear- 
 ance. 
 
 79. Hour allowed for appearance: A 
 judgment rendered against defendant before 
 the expiration of the hour allowed by statute 
 for appearance, though erroneous, is not void, 
 and cannot be attacked in a collateral pro- 
 ceeding: Central Iowa R. Co. v. Piersol, 
 65-498. 
 
 80. Where the record of a judgment by 
 default recited that it was entered after the 
 expiration of the hour allowed, held, that 
 the record was conclusive in that respect, 
 and could not be impeached by affidavits 
 that the hour had not expired : Cory v. King, 
 49-365. 
 
 c. Pleadings. 
 
 81. Technical exactness and nicety in 
 
 pleading are not required before a justice of 
 the peace: Wright v. Phillips, 2 G. Gr., 191 ; 
 Taylor v. Barber, 3 G. Gr., 350; Packer v. 
 Cockayne, 3 G. Gr., Ill; Burton v. Hill, 4G. 
 Gr., 379; Hall v. Monahan, 1-554; Greff v. 
 Blake, 16-222; Boot v. Illinois Cent. R. Co., 
 29-102. 
 
 82. Technical rules of pleading which pre- 
 vail in courts of record are not applicable to 
 proceedings in justices' courts: Francis v. 
 Bmtley, 50-59. 
 
 83. The same technical precision is not re- 
 quired in stating a cause of action or defense : 
 Finch V. Central R. of Iowa, 42-304. 
 
 84. WhatsufBcient: If the cause of action 
 is stated in general terms, with sufficient 
 
1020 
 
 JUSTICES OF THE PEACE, III, c. 
 
 Pleadings. 
 
 certainty to apprise the defendant of the 
 nature, of plaintiff's demand, it is BuflS.oient: 
 Shea V. Livingston, 33-158. 
 
 85. Great liberality of construction should 
 be indulged in relation to such pleadings: 
 Blake v. Graves, 18-313 ; Emerick v. Clemens, 
 26-333. 
 
 86. In an action befoi-e a justice on account 
 the charges were set forth as follows: "To 
 dental work," "extracting teeth, etc.," the 
 date of each, with the amount thereofrbeing 
 set opposite each charge. Held, to be a suffi- 
 ciently specific statement : Brownell v. Smith, 
 13-387. 
 
 87. Variance: Where the pleadings are 
 oral, or even where they are written, exact 
 correspondence in the proof is not required : 
 West V. Moody, 33-137. 
 
 88. Variance between the evidence and the 
 statement of the cause of action on the jus- 
 tice's docket should not be held fatal on ap- 
 peal: Rife V. Pierson, 3 G-. Gr., 189. 
 
 89. In a case originating before a justice, 
 where full and formal pleadings are not re- 
 quired, a judgment will not be reversed be- 
 cause evidence is introduced and instructions 
 given that find no support in a specific alle- 
 gation of the pleadings, where both parties 
 covered the point in their evidence without 
 objection : Miller v. Cassady, 36-333. 
 
 90. Under a general allegation, in an ac- 
 tion against a carrier, of the loss of a trunk, 
 held, that plaintifiE might prove whatever 
 was necessary to establish such loss-: Byers 
 V. Lessees of Des Moines Valley B. Co., 21-54. 
 
 91. Objections to pleading's: If the plaint- 
 iff fails to state his cause of action in a suf- 
 ficiently clear manner, the objection should 
 then be taken, if at all, and cannot be made 
 when the evidence is offered to sustain it: 
 Delanyv. Reade, 4-292. 
 
 92. Substantial requirements: But plead- 
 ings are required to be substantially the 
 same as in the district court, and therefore 
 it was held error, even in a trial before a 
 justice, to admit evidence of defect in the 
 proper execution of an instrument under a 
 denial of indebtedness thereon: Glidden v. 
 Higbee, 31-379. 
 
 93. Filing of petition is not necessary to 
 the commencement of an action before a 
 justice, even when the action is such that a 
 sworn petition must be filed. If the peti- 
 
 tion in such case is filed on the return day 
 of the notice, it is sufiicient : Duffy v. Dale, 
 43-315. 
 
 94. Oral pleading: The requirement that 
 an oral pleading be written down by the 
 justice in his docket is merely directory, and 
 a failure to comply therewith should not be 
 allowed to prejudice a party so pleading: 
 West V. Moody, 33-137. 
 
 95. It is not necessary that the justice 
 should set out the claim with the particular- 
 ity required in a formal petition: Stone v. 
 Murphy, 2-35. 
 
 96. In writing down defendant's oral plea, 
 the justice should state the substance of the 
 defense relied on, and not what he infers was 
 meant thereby : Jordan v. Quick, 11-9. 
 
 9 7. On appeal, the transcript of the justice's 
 docket, where the plaintiff's claim has been 
 orally stated, must show the amount and 
 nature of plaintiff's demand : Sears v. Tubbs, 
 4G. Gr.,409. 
 
 98. If the cause of action is sufficiently en- 
 tered upon the docket, the loss of the original 
 notice will be immaterial : Shawg v. Bruce, 
 3-324. 
 
 99. Style of plaintiffs: Where plaintiffs 
 were designated in the notice as "heirs at 
 law " of the payee of the note sued on, held, 
 that they did not sue as heirs, and if they did 
 it was immaterial: King v. Qottsehalk, 21- 
 512. 
 
 100. Bill of particulars: In an action be- 
 fore a justice on an account, plaintiff must, 
 when demanded, furnish a bill of particulars, 
 or name the items so that the justice can en- 
 ter them on his docket : McKenney v. Hop- 
 kins, 30-495. 
 
 101. Substitution of administrator upon 
 death of party: Upon the death of defend- 
 ant after commencement of suit and before 
 return day, the administrator may be substi- 
 tuted and the cause may be continued by 
 one or more adjournments until an adminis- 
 trator can be appointed : Caughlin v. Blake, 
 55-634. 
 
 102. Denial presumed: Where, on appeal, 
 it appears that a trial was had before the 
 justice on the merits, a denial of plaintiff's 
 right to recover will be presumed to have 
 been made, although it does not appear of 
 record : Sinnamonv. Melboum, 4 G. Gr., 309 ; 
 Heath v. Coltenback, 5-490 ; Hall v. Denise, 
 
JUSTICES OF THE PEACE, IV, a, b. 
 
 1021 
 
 Trial and judgment. — ^ Incidents; nonsuit. 
 
 6-534 ; Clark v. Barnes, 7-6 ; Weimer v. Lin- 
 liard, 12-359 ; Richman v. Brown, S5-33. 
 
 103. But where the entry of the justice 
 indicates that tliere was no denial of a set- 
 off, it should be regarded as admitted : Brock 
 V. Manatt, 5-270. 
 
 104. Counter-claim: In order that a coun- 
 ter-claim may be properly interposed so as to 
 defeat plaintiflE's right to dismiss the action, 
 it must be set up in a written answer filed, 
 or must be stated to the justice and the sub- 
 stance thereof entered on his docket : Kuhn 
 V, ^one, 10-392. 
 
 105. The failure of the justice to mark 
 an instrument as filed will not prejudice the 
 rights of the party filing it : Stone v. Murphy, 
 2r35. 
 
 106. Nor prevent its being admitted in evi- 
 dence in a trial on appeal: Eggleston v. 
 Collis, 10-554. 
 
 TV. Teial aot) judgment. 
 
 a. Incidents of the trial. 
 
 107. Continuance: A continuance by con- 
 sent to an indefinite time will not enable one 
 party to obtain judgment by default against 
 the other without notice to the other as to the 
 time when the cause is again set for trial : 
 Rowley v. Baugh, 83-201. 
 
 108. After the death of a party before trial, 
 a continuance may be granted to allow an 
 administrator to be appointed, so that he 
 may be made party : Caughlin v. Blake, 55- 
 634, 
 
 109. Time to demand jury : Under a stat- 
 ute (Code, § 3537) providing that a jury, if 
 desired, must be demanded at or before the 
 time for joining issue, held, that for a reason- 
 able time after the filing of defendant's an- 
 swer, plaintiff had the right to demand a jury 
 trial: Hall v. Chicago, B. <S;Q. R. Co., 65-258. 
 
 110. Instructions: A justice of the peace 
 has no power to give instructions to a jury 
 sitting in the trial of a case before him : St. 
 Joseph Mfg. Co. v. Harrington, 53-380. 
 
 1 J 1. Where it appeared upon writ of error 
 to the pircuit com-t that the justice had 
 given instructions to the jury, held, that the. 
 cause should have been remanded for new 
 trial, although the, giving of instru,ct4pns was 
 not urged as error : Ibid. 
 
 112. Terdict: In an action for balance due 
 for the purchase of property, it is error to 
 render judgment on a verdict of the jury 
 " for the plaintiff " without an assessment of 
 damages : Bartle v. Plane, 68-237. 
 
 113. If the verdict returned by the jury is 
 incorrect in form, the justice may advise the 
 jurors as to the proper form, and direct a 
 new verdict in that form to be rendered: 
 Wright V. Phillips, 2 G. Gr., 191. 
 
 114. Setting aside verdict; new trial: 
 A justice of the peace has no authority to set 
 aside a verdict of the jury: JDupontv. Damn- 
 ing, 6-172. 
 
 115. Nor to grant a new trial: Helmich v. 
 Johnson, Mor., 89. 
 
 116. The justice has no power to set aside 
 the verdict or to arrest the judgment, when 
 the verdict is rendered. He has no discretion 
 in the matter, but is required absolutely to 
 enter judgment for the amount thereof, and 
 in so doing he performs a merely clerical duty : 
 Atkinson v. Chicago & N. W. R. Co., 70 — -. 
 
 117. Ketrial where service is by publica- 
 tion: The statutory provisions (Code, § 2877) 
 for retrial of actions where service is by pub- 
 lication are applicable to proceedings in jus- 
 tices' courts : Taylor & Farley Organ Co. v. 
 Plumb, 57-33. 
 
 118. Betaxing costs: The justice cannot 
 entertain a motion after judgment to retax 
 costs: Miller v. Haley, 66-260. 
 
 119. Entries on justice's docket: The 
 provision (Code, § 3515, If 3) for the entry in 
 the docket of the fact of issuance and return 
 of process is directory, and a failure to make 
 such entry will not prejudice the party inter- 
 ested: Houston V. Walcott, 1-86; Bridges v. 
 Arnold, 37-221. 
 
 120. Objections to evidence and rulings 
 thereon need not be entered on the docket : 
 Miller v. O'Neal, 9-446. 
 
 121. An entry on the docket of the taking 
 and allowance of an appeal, being an entry 
 required to be made, will prevail over an 
 entry on the appeal bond as to the date of 
 filing and approving the same, in case such 
 entries are conflicting: Moore v. Manser, 
 
 9^:47. 
 
 b. Dismissal or nonsuit and default. 
 
 122. A nonsuit for failure of plaintiff to 
 appear diould not be entered where the ac- 
 
1022 
 
 JUSTICES OF THE PEACE, IV, b, c. 
 
 Dismissal or nonsuit and default. — Judgment; its entry and enforcement. 
 
 tion is upon a written instrument which has 
 been filed with the justice prior to appear- 
 ance day, as authorized by law: Jewett v. 
 McLelland, 3 G. Gr., 568. 
 
 123. If plaintiff appears before decision of 
 a motion for nonsuit on account of his non- 
 appearance, the motion should be overruled: 
 Wright v. Philips, 2 G. Gr., 191. 
 
 124r. Setting' aside defanlt: A judgment 
 by default cannot be set aside on a showing, 
 supported by affidavits, that the justice en- 
 tered judgment by default before a particu- 
 lar time of day. The recitals of the judgment 
 are conclusive upon that point : Cory v. King, 
 49-365. 
 
 125. Where defendant appears and de- 
 mands a jury, and judgment is rendered 
 against him for want of an answer, such 
 judgment is not by default in such sense that 
 it can be set aside on motion, as provided for 
 in case of judgments by default: Rhodes v. 
 De Bow, 6-360, 
 
 126. So, where defendant appeared and 
 answered, but did not appear at time of trial, 
 and judgment was rendered against him, 
 held, that it was not a judgment by default : 
 Douglass v. Langdon, 29-245. 
 
 127. Motion to set aside default; notice: 
 No notice to the opposite party of a motion 
 to set aside default is necessary : Stivers v. 
 Thompson, 15-1 ; Park v. Batcliffe, 43-42. 
 
 128. Excuse for default: As to what is a 
 satisfactory excuse, much is left to the dis- 
 cretion of the justice : Stivers v. Thompson, 
 15-1. 
 
 129. Costs: An order of the justice, upon 
 setting aside default, that it be at the cost of 
 defendant, /leW correct: Ibid. 
 
 0. Judgment/ its entry and enforce- 
 ment. 
 
 130. When to be entered: i A judgment 
 on the verdict of a jury should be entered up 
 forthwith ; and where there was a delay of 
 sixty days in entering judgment, hdd, that 
 the judgment so entered was void : Harper v. 
 Albee, 10-389. 
 
 131. Such judgment might be reversed on 
 a writ of error, but cannot be appealed from : 
 
 Ibid,; Brown v. Scott, 2 G. Gr., 454; Cruthrie 
 V. Humphrey, 7-23. 
 
 132. " Forthwith " means within a reason- 
 able time ; and held, that where a confession 
 was made on Saturday night before a justice 
 and entered uj) Monday morning, it was in 
 time, and that even when there is unreason- 
 able delay, the judgment would, as between 
 the parties, be voidable, but not void : Burch- 
 ett V. Casady, 18-343. 
 
 133. Where a verdict was rendered at 10 : 80 
 P. M. on one day and judgment entered on 
 the docket at 11 A. M. the next day, It was 
 held that the statute was sufficiently com- 
 plied with : Davis v. Simma, 14-154. 
 
 134. Entry upon the docket constitutes 
 the rendition of the judgment: Brown v. 
 Scott, 2 G. Gr., 454. 
 
 135. Form: A justice in rendering judg- 
 ment need follow no particular form : Stow- 
 ers V. Milledge, 1-150 ; Barrett v. Qarragan, 
 16-47 ; Church v. Crossman, 41-373. 
 
 136. An entry reciting, " after hearing 
 all the testimony on both sides it is believed 
 that the pJaintiffi is entitled to seventy-five 
 dollars debt," etc., held sufficient to consti- 
 tute a judgment : Stowers v. Milledge, 1-150. 
 
 137. Where the transcript of the judg- 
 mefit of a justice of the peace showed the 
 time, place, parties, matter in dispute, and the 
 result, lield, that it showed all the requisites 
 of a valid judgment : Church v. Crossman, 
 41-373. 
 
 138. Where the time, place, parties, mat- • 
 ter in dispute and the result were so con- 
 cisely and clearly stated as to be unmistaka- 
 ble, hdd, that the entry was sufficient : Bar- 
 rett V. Qarragan, 16-47. 
 
 139. Entries in particular cases, irregular 
 in form, held sufficient: Moore v. Manser, 
 9-47 ; Lavalle v. Badgly, 33-155. 
 
 140. Presumptions: In a collateral pro- 
 ceeding liberal rules are recognized in rela- 
 tion to judgments of justices of the peace: 
 Williams v. Brown, 28-247. 
 
 And see supra, g§ 3-10. 
 
 141. Filing transcript of judgment: A 
 transcript of a judgment before a justice can 
 only be filed and become a lien in the county 
 where rendered. To make it a lien in another 
 
 » Code, § 3553. In cases of dismissal, confession, or on tlie verdict of a jury, tlie judgment shall be rendered 
 and entered upon the docket forthwith. In aU other cases, the same shaU he done within three days after the 
 cause is submitted to the justice for final action. 
 
JUSTICES OF THE PEACE, V, a. 
 
 1023 
 
 Appeals ; trial anew. 
 
 county, a transcript must be taken to such 
 county from the judgment as filed in the 
 clerk's office in the county where rendered : 
 Blaney v. Hanks, 14-400. 
 
 142. The iiling of a transcript does not pre- 
 vent the prosecution of an appeal or writ of 
 error: Wilson v. Robinson, Ql-Zbl . 
 
 143. Execution on the transcript may 
 issue from the office of the clerk of the cir- 
 cuit court at any time within twenty years : 
 McCoy V. Cox, 54-595. 
 
 144. Issuance of execution: The provis- 
 ion of Code, § 3569, extending the time 
 within which execution may issue on the 
 judgment beyond that provided in the Eevis- 
 ion, is applicable to cases in which the time 
 allowed under the Revision had not expired 
 when the Code was enacted, but not to cases 
 where such time had expired: Woods v. 
 Haviland, 59-476. 
 
 145. Form of execution: An execution 
 specifying who recovered the judgment and 
 against whom it was recovered, but not re- 
 citing formally the names of the parties to 
 the action, held sufficient: Williams v. 
 Brown, 28-347. 
 
 146. An execution sale, after the expira- 
 tion of the execution under which levy is 
 made, and without renewal as contemplated 
 by statute, will be valid : Walton v. Wray, 
 54-531. 
 
 As to the authentication of judgments to 
 be used as evidence in another state, see Ev- 
 idence, §§ 549-554. 
 
 V. Appeals and weits of eeeoe. 
 
 a. Ajppeal and trial anew. 
 
 147. Bi^ht of appeal: Whenever, in any 
 case, there is final judgment before a justice, 
 the right of appeal is given, unless denied by 
 express provision or necessary implication. 
 So TieM in an action against a defendant for 
 violation of a city ordinance under a charter 
 giving justices jurisdiction in such cases: 
 IMmque v. Retrman, 1-444. 
 
 148. But if the justice exercises a new 
 jurisdiction created by statute, in which the 
 proceedings are summary, and different from 
 the common law, certiorari and not appeal is 
 the proper method of review : Ibid. 
 
 149. Only after judgment: A party can- 
 not appeal from the verdict of a jury. There 
 
 must first be a judgment by the justice upon 
 such verdict: Kimble v. Riggin, 3 G. Gr., 
 245; Brown V. Scott, 3 G. Gr., 454; Guthrie 
 V. Humphrey, 7-23. 
 
 150. Prom judgment by default: An ap- 
 peal may be taken from a judgment by de- 
 fault : Butler v. Heeb, 38-429. 
 
 151. Pi'om nonsuit: An appeal may be 
 taken from a judgment of nonsuit on the 
 evidence : Gilson v. Johnson, 4r-4Q3. 
 
 152. The dismissal of action against a 
 garnishee may be reviewed by appeal: 
 Hodge v. Ruggles, 36-43. 
 
 153. From judgment upon the evidence: 
 If the final judgment of the justice upon 
 the evidence is wrong, the proper remedy is 
 by appeal and not by writ of error : Lane v. 
 Goldsmith, 23-240. 
 
 154. Errors of law committed in pro- 
 ceedings which end in final judgment, and 
 which affect the merits of the controversy, 
 may be reviewed on appeal unless waived : 
 Belding v. Torrence, 39-516. 
 
 155. The right of appeal exists whether 
 the judgment complained of, if final, is one 
 of law or fact : Griffin v. Moss, 3-261. 
 
 156. Judgments not ftnal: An error of 
 the justice in entertaining jurisdiction where 
 there is no notice, and rendering judgment 
 on default, should be corrected by writ of 
 error and not by appeal: Craine v. Fulton, 
 10-457. 
 
 157. So an error of the justice in refusing 
 to entertain jurisdiction and dismissing the 
 case cannot be reviewed by appeal : Belding 
 V. Torrence, 39-516. 
 
 158. Where the justice dismisses the ac- 
 tion for failure of plaintiff to appear, and 
 renders judgment against him for costs, the 
 plaintiff is not thereby precluded from re- 
 covering in another action, and therefore the 
 judgment is not final and can be reviewed 
 only on writ of error. No appeal can be 
 taken in such case: Strieker v. Holtz, 50- 
 291. 
 
 159. Error in ruling on a demurrer can- 
 not be reviewed on appeal, as the appeal 
 brings up the case for trial on the merits, and 
 waives all such errors or irregularities : Left- 
 wick V. Thornton, 18-56. 
 
 160. Judgment on an award cannot be 
 reviewed on appeal, as the result would be to 
 try the case anew instead of passing only 
 
1024 
 
 JUSTICES OF THE PEACE, V, a. 
 
 Appeal and trial anew. 
 
 upon the validity of the award: Whitis v. 
 Culver, 25-30. 
 
 As between appeal and writ of error, 
 which is the proper method of proceeding, 
 see also, infra, g§ 273-278. 
 
 IGl. Amount in controversy: The statute 
 limiting the right of appeal to cases in which 
 the amount in controversy exceeds twenty- 
 five dollars is not unconstitutional as depriv- 
 ing the party of a trial before a common law 
 jury in such cases. The constitution au- 
 thorizes the legislature to provide for ti-ial by 
 jury of less than twelve, in inferior courts, 
 irrespective of the right of appeal: Higgins 
 V. Farmers' Ins. Co., 60-50, 
 
 162. Where the defendant makes a tender 
 which is not accepted, the amount in contro- 
 versy is the difference between the amount 
 claimed and the amount tendered, and if that 
 does not exceed twenty-five dollars, no ap- 
 peal is allowed: Young v. McWaid, 57-101. 
 
 163. In determining the amount in con- 
 troversy under this section the costs taxed 
 up by the justice of the peace will not be 
 taken into consideration: Curranv. Excelsior 
 Coal Co., 63-94. 
 
 164. Where plaintiff claimed less than 
 twenty-five dollars in his account, and de- 
 fendant set up, not by way of counter-claim, 
 but as a defense, the payment of more than 
 twenty-five dollars to plaintiff on the in- 
 debtedness, held, that the amount in contro- 
 versy was what was claimed and not what 
 defendant alleged that he had paid: Boyle 
 V. Wilcox, 59-466. 
 
 165. Where the amount claimed by plaint- 
 iff is more than twenty-five dollars and he 
 recovers less than that amount, and defend- 
 ant appeals, the amount in controversy is 
 that, claimed by plaintiff, and not that for 
 which judgment is rendered, for plaintiff 
 may, on the appeal, if he establishes his 
 right thereto, recover the whole amount of 
 his claim: Lundak v. Chicago <& N. W. B. 
 Co., 65-473. 
 
 166. The question whether the amount in 
 controversy between the parties exceeds 
 twenty-five dollars is to be determined from 
 the pleadings. Whenever one of the parties 
 to the litigation has asserted a claim or de- 
 mand in his pleadings upon which he asks 
 relief against his adversar'y, which the other 
 party denies, a controversy exists between 
 
 them as to such claim or demand, and it is 
 immaterial that upon the trial of the appeal 
 the party asserting such demand does not in- 
 troduce evidence to substantiate it, or is able 
 to prove but a portion of it. Such failure of 
 evidence will not justify the dismissal of the 
 appeal, where the amount stated in the plead- 
 ings is sufficient : Sterner v. Wilson, 68-714. 
 
 167. Where plaintiff's cause of action was 
 for less than twenty-five dollars but defend- 
 ant interposed a counter-claim for more than 
 that amount, and judgment was rendered 
 against plaintiff for costs, and he appealed, 
 held, that as the appeal brought up the whole 
 controversy for trial anew, the amount of 
 the counter-claim was involved and the ap- 
 peal was proper : Perry v. Conger, 65-588. 
 
 168. If the party in whose favor judgment 
 is rendered for more than twenty-five dollars 
 remits the excess over that amount, the op- 
 posite party cannot appeal: Milnerv. Gross, 
 66-252. 
 
 As to what constitutes the amount in con- 
 troversy, see supra, §§ 000-000 ; and Appeals, 
 in, a. 
 
 169. Where, upon recovering a judgment 
 for less than the sum of twenty-five dollars 
 in an action in which more than that amount 
 was asked, the plaintiff filed a paper before 
 the taking of the appeal withdrawing his 
 claim and asking only the sum for which 
 judgment had been rendered, held, that an 
 appeal could not thereafter be taken : Bate- 
 man V. Sisson, 70 . 
 
 170. Waiver of right to appeal: A party 
 may by agreement, before or after the judg- 
 ment is rendered, relinquish or waive his 
 right of appeal from such judgment. (Over- 
 ruling Clark V. Gibson, Mor., 328): Lyon v. 
 Sanders, 3 G. Gr., 332. 
 
 171. A party cannot appeal from a judg- 
 ment entered before a justice of the peace 
 by his consent : Stever v. Heald, 61-709. 
 
 172. The filing of the transcript in the cir- 
 cuit court does not prevent the taking of 
 appeal or writ of error : Wilson v. Eobhison, 
 61-357. 
 
 As to waiver of right of appeal, in general, 
 see Appeal, g§ 5-22. 
 
 173. Waiver of error: Any error in the 
 ruling upon an incidental motion is waived 
 by answeriDg and proceeding in the case: 
 Rahn v. Greer, 37-637. 
 
JUSTICES OF THE PEACE, V, a. 
 
 1025 
 
 Appeal and trial anew. 
 
 174. Error in dismissing an action upon 
 refusal to give security for costs is waived 
 by commencing a new suit on the same cause 
 of action : Oordon v. Ellison, 9-317. 
 
 175. Withdrawal, .abandonment or dis- 
 missal of appeal: A party may withdraw 
 his appeal, at least with the acquiescence of 
 the other party: MeKeever v. Sorine, 12- 
 227. 
 
 176. After giving of notice and bond, but 
 before filing of transcript, the appellant may 
 withdraw his appeal and move before the 
 justice to have the judgment set aside : Park 
 V. RatcUffe, 42-42. 
 
 177. Where the steps for an appeal were 
 taken before the justice, but it was not pros- 
 ecuted for four years, held, that appellant 
 could not object to his property being sub- 
 jected to the payment of the judgment: 
 Warder v. Rivers, 64-413. 
 
 178. A party may be allowed to dismiss 
 his appeal in the court to which it is taken : 
 Harper v. Albee, 10-389 ; Ooodenow v. Perry, 
 12-850. 
 
 179. A party has the same right to dismiss 
 his appeal as to dismiss any other action: 
 Harris v. Laird, 25-143. 
 
 ISO. Motion before justice to correct er- 
 ror: Where the party prejudiced by the 
 error of the justice might have it corrected 
 on motion before the justice, he cannot 
 maintain a writ of error to correct the error 
 untU be has made such motion and it has 
 been overruled. Therefore, held, that where 
 default was entered on insufficient notice, a 
 writ of error would not lie until a motion to 
 set aside the default had been made and 
 overruled by the justice : Leonard v. Eallem, 
 17-564; Smith V. Parker, 28-359. 
 
 The rule is the same as on appeals to the 
 supreme court : See Appeals, §§ 193-209. 
 
 181. But if the justice has no jurisdiction 
 the party prejudiced need take no steps before 
 the justice to remedy the error in assuming 
 jurisdiction, but may proceed by writ of error, 
 or, if he does not know of the judgment in 
 time for that, may maintain an independent 
 action to set the judgment aside: Holmes v. 
 Hull, 48-177. 
 
 182. Party to appeal: It is only parties to 
 the action that have a right to appeal. A 
 surety on a replevin bond cannot appeal from 
 a judgment against his principal, and f eliti- 
 
 VOL. 1—65 
 
 gate his principa,rs claim to the property: 
 Orites v. Littleton, 33-205. 
 
 183. The .fnrisdiction of the superior 
 court to entertain appeals from justices of 
 the peace in the township is not exclusive of, 
 but concurrent with, that of the circuit court 
 in such cases: Hiekox v. Nutting, 55-403; 
 Hickox V. Burlington, C. R. <&N. R. Co., 55- 
 431. 
 
 184. Time for perfecting appeal: An aj)- 
 peal taken after the lapse of twenty days is 
 in effect no appeal, and the case should be 
 stricken from the docket of the circuit court. 
 In such case the court has no jvirisdiction to 
 render any judgment except for costs: Mar- 
 tin V. Croker, 62-328. 
 
 185. When the method of securing the al- 
 lowance of an appeal by application to the 
 clerk of the circuit court, in case of the ab- 
 sence or death of the justice or his inability 
 to act, is pursued, the appeal must be per- 
 fected within twenty days as in other cases : 
 McBrearty v. Dyer, 6-528. 
 
 186. Method of perfecting appeal bond: 
 An appeal is not perfected until the bond is 
 filed and the sureties approved: Brown v. 
 Beesett, 13-185 ; MeKeever v. Horine, 12-237. 
 
 187. Sureties on bond: The justice may 
 refuse to approve the bond unless the surety 
 justifies as required by statute: Lane v. 
 Goldsmith, 83-340. 
 
 188. Writ or process; revenue stamp: 
 The appeal is not effected by a writ or pro- 
 cess, but by notice, an appeal bond and a 
 certified transcript of the proceed ings. There- 
 fore, under the former United States revenue 
 law requiring a stamp on writs or other pro- 
 cess from a justice of the peace, held, that 
 the stamp might be affixed to either of these 
 documents, and it was sufficient if affixed to 
 the notice : May v. Wilson, 30-117. 
 
 189. In such cases it was held that the 
 stamp should be attached to the notice of ap- 
 peal, if in writing ; if not, then to the bond 
 or transcript : Hugus v. Strickler, 19-413. 
 
 190. But where no revenue stamp was 
 affixed to any paper connected with the ap- 
 peal, held, that it was properly dismissed on 
 that ground : Botkins v. Spurgeon, 20-598. 
 
 191. The appeal, it was held, should not 
 be dismissed for want of a stamp on the 
 proper paper, if, before the hearing, the bond 
 was properly stamped under the written or- 
 
1026 
 
 JUSTICES OF THE PEACE, V, a. 
 
 Appeal and trial anew. 
 
 der and direction of the revenue collector, 
 and that it was not necessary that such or- 
 der should set forth the facts of which the 
 collector was required by law to be satisfied 
 before granting the same: Doud v. Wright, 
 33-336. 
 
 192. Notice is not essential to give the 
 court to which the appeal is taken jurisdic- 
 tion, but failure to give proper notice simply 
 entitles the appellee to a continuance: Bond 
 V. Davis, 37-163. 
 
 1S)3. Service of notice of appeal on appellee 
 is not necessary if the appeal is allowed and 
 perfected on the day on which judgment is 
 rendered: Holloway v. Baker, 6-53. 
 
 194r. Appearance waives notice: The ap- 
 pearance of an appellee in the eourt to 
 which the appeal is taken will amount to a 
 waiver of any irregularity or defect in the 
 taking of the appeal, provided the court has 
 jurisdiction of the subject-matter: Wilgusv. 
 Gettings, 19-83. 
 
 195. Notice or appearance must be shown: 
 Where it does not appear affirmatively that 
 proper notice of appeal was given, or that ap- 
 pellee appeared, judgment should not be 
 rendered against the appellee: Quillan v. 
 Windsor, 6-396 ; McCormick v. Bishop, 3 G. 
 Gr., 99. 
 
 196. Appeal bond: A bond equivalent in 
 form to that given in the statute and sub- 
 stantially complying with its requirements 
 is sufficient: Moore v. Manser, 9-47. 
 
 197. Where the bond is not, in form or 
 substance, such as is required by statute, it is 
 error to enter up judgment thereon against 
 the sureties, as authorized by statute when 
 the bond is in the form prescribed : Wilson v. 
 Knight, 3 G. Gr., 136. 
 
 198. Any defect in the bondmay be cured 
 by tendering a sufficient bond in the court to 
 which the appeal is taken (such case being 
 within the general provisions of Code, § 248, 
 as to defective bonds) : Brock v. Manatt, 1-128. 
 
 199. Fee for approving appeal bond: The 
 justice is not entitled to any fee for approv- 
 ing an appeal bond which is prepared by the 
 attorney and handed him ready for approval : 
 McKay v. Malay, 53-33. 
 
 200. (Jualiflcation of surety: The justice 
 may require the surety to himself make affi- 
 davit as to his qualification as surety: Lane 
 V. Goldsmith, 28-340. 
 
 201. Filing papers anil transcript: When- 
 ever the transcript and papers from the 
 justice are filed in the office of the clerk of 
 the court to which appeal is taken, the cause 
 is to be deemed in that court : Holloway v. 
 Baker, 6-52. 
 
 202. Notes or other evidences of indebted- 
 ness, claimed to be those on which the action 
 before the justice was based, and not certi- 
 fied by the justice with his record, are not to 
 be received in evidence on the appeal unless 
 marked filed by the justice or otherwise 
 identified as the same as those used in the 
 trial of the case before the justice. Other- 
 wise the identity of the cause of action tried 
 on appeal with that tried before the justice 
 would not appear: Graft v. Diltz, 2 G. Gr., 
 570. 
 
 203. Transcript certified by an ex-jus- 
 tice: The certificate of an ex-justice in rela- 
 tion to proceedings had before' him while in 
 office, is not entitled to legal consideration : 
 Broum v. Scott, 3 G. Gr., 454. 
 
 204. An amended transcript sent up by 
 the justice within the time for filing tran- 
 script should be considered : Smith v. Snod- 
 grass, 4 G. Gr., 283. 
 
 203. Filing fee of transcript: The justice 
 is not required to pay the clerk's fee for the 
 filing of the transcript in the circuit court, 
 and therefore cannot demand prepayment to 
 him of such fee before filing his transcript in 
 the clerk's office : McKay v. Maloy, 53-83. 
 
 206. Ti'anscript perfected : Apphcationto 
 the court to which the appeal is taken, to re- 
 quire a more complete transcript, should not 
 be refused, if made in due time : Atwater v. 
 Woodward, 4 G. Gr., 431. 
 
 207. Correction of justice's record may 
 be made by the court to which the appeal is 
 taken, if a naistake or omission therein is un- 
 questionably estabHshed, in order that the 
 case may be fully tried on the issues pre- 
 sented before the justice : Cooper v. Wood- 
 row, 3-189. 
 
 208. The court may hear evidence explain- 
 ing a mistake or showing an omission in the 
 justice's record: Brown v. Beesett, 13-185. 
 
 209. Should be filed for regular term: 
 The "next" term of court at which the 
 transcript should be filed is the next regular 
 term. The return should not be made to a 
 special term : Coon v. Matthews, 10-290. 
 
JUSTICES OF THE PEACE, V, a. 
 
 1027 
 
 Appeal and trial anew. 
 
 210. Dismissal or afflrmance for failure 
 to file transcript: Failure of the justice to 
 file his transcript at the proper term is not 
 sufficient ground for an affirmance of the 
 judgment : Fisher v. Harber, 10-293. 
 
 211. If the appellant fails to have a tran- 
 script filed, it may be filed by appellee, and 
 he may then have the appeal dismissed, or 
 the judgment affirmed : Holloway v. BaJcer, 
 6-53. 
 
 212. The neglect of the justice to mate the 
 return in the proper time is not a ground for 
 dismissing the appeal: Whitcomb v. Hollo- 
 way, 4 G. Gr., 311. And see Whitehead v. 
 Thorp, 33-425. 
 
 213. Under a rule of court allowing ap- 
 pellee to pay the filing fee and have the 
 appeal docketed and the judgment of the 
 justice affirmed, upon a failure of appellant, 
 after taking the appeal, to pay the fee and 
 cause the case to be docketed, the appellee is 
 not entitled to such affirmance where the 
 clerk dockets the case without having re- 
 quired the fee in advance from appellant: 
 Squires v. Millett, 81-169. 
 
 214. If the default or omission in paying 
 the docket fee in such cases is remedied be- 
 fore the opposite party has suffered any detri- 
 ment or made objection on that account, a 
 motion for affirmance should not afterwards 
 be, allowed on that ground : Hinman v. 
 Weiser, 9-561; Robertson v. Eldora R., etc., 
 Co., 27-245. 
 
 215. So an offer of appellant to pay the 
 fee before the ruling of the court on the 
 motion to affirm would render it improper to 
 sustain the motion : Squires v. Millett, 31-169. 
 
 21G. But where the rule of court required 
 payment of docket fee by appellant by the 
 morning of the second day, and the motion 
 to affirm was made on the third day and de- 
 termined on the ninth day, held, that an 
 offer on the last named day by appellant to 
 pay the fee, without showing a good excuse 
 for not having sooner paid it, would not ren- 
 der an order of affirmance made on such 
 motion erroneous : State v. Olass, 9-825. 
 
 217. So, where the rule required payment 
 of the docket fee at the beginning of the 
 term, held, that an order of affirmance in 
 pursuance of such rule, made several days 
 after the beginning of the term, should not 
 be set aside on motion, no excuse for the 
 
 delay being made to appear : Heald v. House, 
 89-198. 
 
 218. It is erroneous to affirm under such a 
 rule on account of non-payment of filing fee, 
 where the appeal is taken only seven days 
 before the term, ten days being required to 
 make the appeal triable at the next tei-m: 
 Seeberger v. Miller, 20-428. ' 
 
 219. Where the rule of court provides for 
 affirmance upon the filing of the transcript 
 by appellee in case of appellant's failure to file 
 it, a dismissal should not be granted on such 
 gi-ound, especially if appellee has not filed 
 the transcript: Heiserman v. Rush, 22-340. 
 
 220. While under rule of court an appeal 
 may be dismissed by a stated time in default 
 of payment of the docket fee by appellant, 
 an additional penalty cannot be imposed for 
 such failure : Baade v. Orten, 4 G. Gr., 351. 
 
 221. Afflrmance for failure of appellant 
 to appear: If the appellant fails to appear 
 the court may affirm the judgment of the 
 justice: Wright v. Clark, 2 G. Gr., 86; Tay- 
 lor V. Barber, 2 G. Gr., 850. 
 
 Presumption as to issues: If it appears 
 there w£is a trial on the merits a denial of 
 plaintiff's cause of action will be presumed, 
 if no issue appears on the pleadings: See 
 supra, % 102. 
 
 222. Amendment of the pleadings: A 
 party cannot, in the court to which the ap- 
 peal is taken, file new or amended pleadings 
 as matter of right, but he may be allowed to 
 do so upon proper terms, after showing suffi- 
 cient excuse for the omission to file the same 
 in the justice's court : May v. Wilson, 21-79 ; 
 Stanton v. Warrick, 21-76 ; Warren v. Scott, 
 32-23; Ping v. Cockyne, 37-211. 
 
 223. Leave to file amendments, even upon 
 cause shown, is a matter of discretion : Oris- 
 wold V. Bowman, 40-367. 
 
 224. In the absence of any showing of 
 facts or circumstances requiring that a party 
 be given permission to file an amendment, 
 held not an abuse of discretion to refuse leave 
 to do so : Packard v. Snell, 35-80. 
 
 225. The necessity of showing excuse may 
 be waived by agreement of the pai-ties : War- 
 ren V. Scott, 83-33. 
 
 226. The discretion of the court in allow- 
 ing an amendment wiU not be interfered with 
 unless it is clear that prejudice has resulted ; 
 Dunton v. Thorington, 15-317. 
 
1028 
 
 JUSTICES OF THE PEACE, V, a. 
 
 Appeal and trial anew. 
 
 22 7. The allowing of an amendment cor- 
 recting the name of the partnership suing as 
 plaintiff, held not erroneous : Adae v. Zangs, 
 41-536. 
 
 228. In order to secure a trial of the ap- 
 peal upon the very merits of the case, errors 
 or insufficiencies in the pleadings should be 
 allowed to be cured by amendment : Clow v. 
 Murphy, 52-695. 
 
 229. New defense: Although the statute 
 forbids any new demand or counter-claim 
 being set up on the appeal, defendant may 
 file an amended answer setting up the de- 
 fense of payment. Such matter does not con- 
 stitute a new demand or a counter-claim : St. 
 Louis Type Foundry v. Medes, 60-525. 
 
 230. A new cause of action or defense, of 
 which the justice would not have had juris- 
 diction, cannot be set up on appeal ; as, for 
 instance, a claim for equitable reUef : Hollen 
 V. Davis, 59-444. 
 
 231. Nor can a claim for rescission of a con- 
 tract be thus set up : Griswold v. Bowman, 
 40-367. 
 
 232. Defendant in default before the 
 justice may by statutory provision (Code, 
 § 3596), on an appeal from the judgment, file 
 in the circuit court any pleadings necessary 
 to set forth any defense he may have, and 
 this provision extends to defaults for want 
 of appearance as well as to defaults for 
 failure to plead: McFarland v. Lowry, 40- 
 467. 
 
 233. Under this provision it is the absolute 
 right of the party appealing from a judg- 
 ment against him by default to file an 
 answer in the circuit court, and in the ab- 
 sence of any rule or special order of court 
 with reference to the time for filing such 
 pleading, he may do so at any time before the 
 case is reached for trial: Harty v. Des 
 Moines & M. B. Co.; 54-327. 
 
 234. But before the adoption of such stat- 
 utory provision, the defendant against whom 
 judgment on default had been rendered be- 
 fore the justice, could not, on appealing from 
 such judgment, as matter of right, file an an- 
 swer interposing a defense without showing 
 some reason or excuse for not having an- 
 swered before the justice: Euddick v. Vail, 
 
 7-44 ; Craine v. Fulton, 10-457 ; Leftwick v. 
 Thornton, 18-56. 
 
 235. The fact that defendant had not been 
 served with a sufficient notice, by reason of 
 which he did not plead before the justice, 
 might be a ground for granting leave to 
 plead on the appeal : Graves v. Heaton, H- 
 169. 
 
 286. Appeal from judgment by default; 
 afBrmauce: In case of an appeal by a de- 
 fendant from a judgment against him by de- 
 fault before the justice, if defendant does not 
 appear nor interpose a defense in the court 
 to which the appeal is taken, the judgment 
 may be affirmed on plaintiff's motion : AtMns 
 V. McCready, 8-214. 
 
 237. In such case defendant may appear 
 and cross-examine witnesses in the same 
 manner as in case of default in ordinary cases 
 in such court. But if he makes no appearance 
 the judgment of the justice may be afSrmed 
 without again introducing the evidence: 
 Harty v. Des Moines & M. S. Co., 54^327. 
 
 238. In the absence of any general rule of 
 court to the contrary, such cases cannot be 
 disposed of, even on failure of the party 
 appealing to appear, until reached for trial 
 on the regular caU of the docket : Ibid. 
 
 239. On appearance without interposing a 
 defense, the defendant in default before the 
 justice may contest the amount of plaint- 
 iff's recovery, but not his right to recover: 
 Leftwick v. Thornton, 18-56. 
 
 240. Trial term: Unless ten days inter- 
 vene between the taking of the appeal and 
 the commencement of the next term, neither 
 party can be required to go to trial at that 
 term : Seeberger v. Miller, 20-428. 
 
 241. The rule as to the trial term is the 
 same as in case of original actions in the 
 same court : Mediken v. Mason, 10-406. 
 
 242. If the notice of appeal is not given 
 ten days before the term, the appellee is en- 
 titled to a continuance, but he cannot have 
 the appeal dismissed on that ground : Bond 
 V. Davis, 37-163. 
 
 As to change of venue on the trial of the 
 appeal, see Venue, §§ 108-110. 
 
 243. Method of trial; what questions 
 considered : i As an appeal brings up the case 
 
 ' Code, § 3590. An appeal brings up a cause for trial on the merits, and for no other purpose. All errors, Ir- 
 regularities and illegalities are to be disregarded under such circumstanoea, if the cause might have been 
 prosecuted in the circuit court. 
 
JUSTICES OF THE PEACE, V, a. 
 
 1029 
 
 Appeal and trial anew. 
 
 for hearing upon the merits, defects in the 
 service of the original notice are not ma- 
 terial: Graves V. Heaton, 11-169. 
 
 244. Technical errors of pleading are to be 
 disregarded : King v. Gottschalk. 31-518. 
 
 245. Error in overruling a demui-rer is 
 waived by the appeal and the case is to be 
 tried on its merits; advantage of such an 
 error can be taken only by writ of error, if 
 at all : Leftwick v. Thornton, 18-56. 
 
 246. Where the justice improperly sus- 
 tained a demurrer to an answer, held, that 
 such action should be disregarded and evi- 
 dence under the answer admitted: Olesonv. 
 Hendriokson, 13-223. 
 
 247. A variance between the petition and 
 the original notice as to the facts of plaint- 
 iff's cause of action cannot be raised on ap- 
 peal: Fnnkv. Whicher, 4 G. Gr., 383. 
 
 248. Objections to depositions other than 
 for incompetency or irrelevancy should not 
 be regarded, unless made in the justice's 
 court : Alverson v. Bell, 13-308. 
 
 249. If the cause of action before the 
 justice is stated in different forms and a re- 
 covery is had in one form, an appeal brings 
 up the whole case for trial on the merits and 
 not merely the right to recover in the par- 
 ticular form which was upheld below: Ed- 
 wards V. Trulodk, 37-344. 
 
 250. Upon an appeal by defendant from a 
 judgment against him for apart of plaintiff's 
 claim in the justice's court, the plaintiff may, 
 if he shows himself entitled thereto, recover 
 a larger sum than that recovered before the 
 justice: Lundak v. Chicago & N. W. M. Co., 
 65-473. 
 
 251. Where, upon a demurrer being sus- 
 tained in the justice's court to plaintiff's peti- 
 tion, such petition was amended and plaintiff 
 recovered thereon, but on appeal the plaint- 
 iff withdrew his amendment and a trial was 
 had on the merits and plaintiff again recov- 
 ered, held, that defendant was not entitled to 
 arrest of judgment on the ground that there 
 was no issue, that objection not having been 
 made until after verdict : Ranney v. Templin, 
 54-340. 
 
 252. Although the district court has no 
 jurisdiction of an appeal from a justice, of 
 the peace in civil cases, yet, where such ap- 
 peal pending in the circuit court is consoli- 
 dated with another action originally brought 
 
 in such court, the consolidated action maybe 
 changed to the district court as any case orig- 
 inally pending in the circuit court : Browne 
 V. Hickie, 68-330. 
 
 25.3. Jurisdiction of circuit court: An 
 appeal from the judgment of the justice in a 
 case in which he had no jurisdiction over the 
 subject-matter (as where the defendant is a 
 resident of another county) does not give 
 the circuit court jurisdiction in the case, 
 even though it might properly have been 
 originally brought in that court: MoMeans 
 V. Cameron, 51-691. 
 
 2.54. So, also, where the amount in contro- 
 versy is in excess of that of which the jus- 
 tice may take jurisdiction: Galley v. Tama 
 County, 40-49. 
 
 255. The same point was ruled without 
 discussion in Chapman v. Morgan, 2 G. Gr., 
 374. 
 
 256. Appearance on appeal as conferring 
 jurisdiction: Where the subject-matter of 
 the appeal is one over which the court to 
 which the appeal is taken has jurisdiction, 
 the appearance of the party against whom 
 the appeal is taken will confer jurisdiction on 
 such court to try the case, although there 
 was no judgment in the justice's court from 
 which an appeal could be taken : Danforth 
 V. Thompson, 34-343. 
 
 257. To the contrary: Kimble v. Biggin, 3 
 G. Gr., 245. 
 
 258. Appearance to the appeal cures want 
 of jurisdiction of the person of defendant in 
 the justice's court by reason of no notice 
 having been served : Drake v. Achison, 4 G. 
 Gr., 297. 
 
 25!). Amount in controversy on the ap- 
 peal is the amount claimed by the pleadings, 
 and not the amount of the judgment before 
 the justice: Nichols v. Wood, 66-335. 
 
 260. Plaintiff cannot recover, in addition 
 to the amount claimed by the pleadings, in- 
 terest on the judgment rendered by the jus- 
 tice : Hays v. Chicago, B. & Q. B. Co., 64r-593. 
 
 261. Dismissal of action: If a cause prop- 
 erly commenced before a justice is tried 
 without authority by another justice, the 
 cause should not be dismissed on appeal, but 
 the unwarranted action disregai-ded : Ely v. 
 Dillon, 31-47. 
 
 262. Judgment against sureties on the 
 appeal bond should be limited to the amount 
 
1030 
 
 JUSTICES OF THE PEACE, V, a, b. 
 
 Appeal and trial anew.— Writ of error. 
 
 of the bond: Perry v. Benson, 1 G. Gr., 
 467. 
 
 2G3. Although it is error, in the court to 
 enter up judgment against the appellant 
 for a greater sum than the penalty of the 
 bond, yet such a judgment would not be 
 void for want of jurisdiction: Freeman v. 
 Bart, 61-535. 
 
 264. If the appeal is dismissed because the 
 amount in controversy is insufficient to war- 
 rant an appeal, judgraent may be rendered 
 against appellant and the sureties on the 
 bond for the amount of the judgment in the 
 court below and tlie costs of appeal: Pres- 
 cott V. Bacon, 64^703. 
 
 265. Surety may appeal: A surety 
 against whom judgment is rendered on the 
 appeal bond has such an interest in the judg- 
 ment that if erroneous he may move for its 
 correction, or for a new trial, or may appeal 
 therefrom : Freeman v. Hart, 61-525. 
 
 266. Costs on appeal: Under the statutory 
 provision that appellant must pay the costs 
 of the appeal unless he obtains a more favor- 
 able judgm.ent than that from which he ap- 
 peals (Code, § 3593), there is no ground for 
 apportionment of costs, if the judgment is 
 less favorable than that before the justice: 
 Best V. Dean, 8-519. 
 
 267. But such provision is only applicable 
 to an appeal by the party who recovers the 
 judgment before the justice : Ibid. ; Howder 
 V. Overholser, 48-365. 
 
 26S. Where the appeal was by defendant 
 from a judgment against him before the jus- 
 tice, and on the appeal plaintiff recovered on 
 only a part of several items of demand in- 
 cluded in the first judgment, held, that the 
 case was a proper one for apportionment of 
 costs : Howder v. Overholser, 48-365. 
 
 269. The fact that judgment on appeal by 
 the party recovering judgment before the 
 justice is only enough greater in amount 
 than that recovered before the justice to 
 cover accrued interest thereon will not ren- 
 der the judgment more favorable to appel- 
 lant in such sense as to entitle him to recover 
 costs : Traer v. Filkins, 10-563. 
 
 270. Proffer of certain sum to defeat 
 costs of appeal : If the party against whom 
 
 judgment is rendered by the justice appeals 
 therefrom, and desires to avoid the costs of 
 appeal in the event that appellee recovers on 
 appeal a less amount, he (appellant) must 
 proffer to pay a certain sum, and accrued 
 costs, and then, if the judgment for appellee 
 on appeal is for less than the amount prof- 
 fered, the costs of the appeal wiU fall upon 
 appellee. (Code, § 3593): Best v. Bean, 8- 
 519. 
 
 271. The proffer must be of a certain 
 amount mth costs; otherwise the appellee, 
 if he recover judgment on appeal, is entitled 
 to judgment for the entire costs, although 
 he did not recover more than the amount 
 proffered: Powell v. Western Stage Co., 3-50. 
 
 272. These provisions do not restrict the 
 statutory provisions as to an offer to confess 
 judgment: Wattsv. Lambertson, 39-372. 
 
 b. Writ of error and proceedings 
 thereunder. 
 
 273. What rcTiewable:! Decisions of jus- 
 tices upon matters of law ai-e reviewable 
 upon writ of error ; and where the decision 
 of the justice is final and does not affect the 
 right of the plaintiff to recover in another ac- 
 tion, but is upon a question affecting the 
 jurisdiction of the justice, the capacity of the 
 parties to sue or be sued, etc., it is to be re- 
 viewed on writ of error and not upon appeal : 
 Belding v. Torrence, 39-516. 
 
 274. This is a proper remedy where a jus- 
 tice errs, by refusing to take jurisdiction: 
 Ibid. 
 
 375. Or where he improperly takes juris- 
 diction, or renders judgment by default: 
 Craine v. Fulton, 10-457. 
 
 276. Error of the justice in overruling a 
 demurrer should be taken advantage of by 
 writ of error. It would be waived by ap- 
 peal: Leftivick v. Thornton, 18-56. 
 
 277. The action of the justice in rejecting 
 or recommitting an award, or refusing to do 
 so, may be reviewed by writ of error: Whitis 
 V. Culver, 25-30. 
 
 278. Where the right of plaintiff to ex- 
 emplary damages was not raised by motion 
 or demurrer, but the case was submitted to 
 
 » Code, § 3597. Any person aggx-ieved by an erroneous decision in a matter of law, or other illegality in the 
 proceedings of a justice of .the peace, may remove the same, or so much thereof as is necessary, into the cir- 
 cuit court for correction. 
 
JUSTICES OF THE PEACE, V, b. 
 
 1031 
 
 Writ of error and proceedings thereunder. 
 
 the jury, Tield, that the defendant could not, 
 by writ of error, call in question the judg- 
 ment entered by the justice on the verdict of 
 the jury, on the ground that it allowed ex- 
 emplary damages : Atkinson v. Chicago & N. 
 
 W. R. Co., 70 . 
 
 As to what questions may be reviewed on 
 appeal, see supra, §§ 152-160. 
 
 279. Right not lost by taking transcript: 
 The fact that the party recovering the judg- 
 ment files a transcript thereof in the circuit 
 court does not prevent the judgment being 
 reviewed by writ of error : Wilson v. Robin- 
 son, 61-357. 
 
 280. Time within which applicition may 
 1)6 made: Under the provisions of Code of 
 '51, § 2350, which did not limit the time 
 within which application might be made for 
 the writ, held, that the provisions as to the 
 time within which an appeal might be taken 
 were not applicable, and there was no limit : 
 Porter v. HelmicJc, 3-87; Mudgett v. Park, 
 3-287. (Code, § 8598, makes the provisions 
 as to time of taking appeal applicable to writs 
 of error.) 
 
 281. Notice: A proceeding by writ of er- 
 ror without notice to the appellee cannot be 
 entertained: Sprote v. Marshall, 4 G. Gr., 
 344. 
 
 282. Affidavit for the writ: The affidavit 
 may be made by the attorney of the party 
 asking the writ, when he shows himself suf- 
 ficiently acquainted with the facts to make 
 the necessary statements : Dixon v. Brophey, 
 29-460. ' 
 
 283. The affidavit need not show that the 
 party resisted the decision of the justice of 
 which he complains, or excepted thereto, or 
 that he applied to the justice to correct it : 
 Ibid. 
 
 284. The affidavit ffequired to obtain a writ 
 of error must be signed by the affiant. It is 
 not sufficient that it be sworn to without 
 signing : Crenshaw v. Taylor, 70 . 
 
 285. Dismissal for insufficiency of affida- 
 vit: Where the statements of error made in 
 the affidavit are insufficient and do not show 
 error, the proceeding may be dismissed on 
 motion before the hearing of the case : Elli- 
 ott V. Mitchell, 3 G. Gr., 237. 
 
 286. The writ: Where it does not appear 
 to whom the writ was directed it will be pre- 
 sumed it was directed to the proper justice if 
 
 he makes return thereto : Sayles v. Deluhrey, 
 64r-109. 
 
 287. A mere failure to issue the writ of 
 error held not to render subsequent proceed- 
 ings erroneous, the return having been prop- 
 erly made by the justice, in answer to the 
 affidavit for the writ: Rhodes v. De Bow, 5- 
 260. 
 
 288. The justice's return: The justice 
 should not only certify matters appearing of 
 record by the entries upon his docket, or a 
 bill of exceptions, but any other proceedings 
 stated in the affidavit for the writ, and may 
 be required to certify as to objections made 
 to evidence, and as to the evidence received, 
 so far as it is within his recollection, although 
 not preserved by bill of exceptions ; but this 
 is only for the purpose of enabling the court 
 to determine as to the correctness of rulings 
 upon objections to evidence, etc., and not for 
 the purpose of trying again questions of fact, 
 which can only be done on appeal : Miller v. 
 O'Neal, 9-446. 
 
 289. It is upon the return of the justice, 
 and not upon the affidavit, that the question 
 of error is to be determined : Stone v. Mur- 
 phy, 3-85 ; Lane v. Goldsmith, 23-240. 
 
 290. If the return of the justice does not 
 show the error complained of, the affidavit 
 on which the writ is procured amounts to 
 nothing for that piu-pose : Vance v. Kirfman, 
 20-13. 
 
 291. The justice of the peace is only re- 
 quired to show in his return such matters as 
 are rendered necessary by the affidavit for 
 the writ : Spiesberger v. Thomas, 59-606. 
 
 292. Where the facts are reasonably ap- 
 parent from the return, it is not error to re- 
 fuse to order a further return to con-ect a 
 mere clerical error : Olim v. Chicago, M. & 
 St. P. R. Co., 61-250. 
 
 293. Supersedeas bond: While no bond is 
 required in case of the prosecution of a writ 
 of error, yet if one is not given the judgment 
 of the justice may be enforced notwithstand- 
 ing the writ of error, and even though a 
 judgment in the circuit court on the writ of 
 error is superseded by a bond given on appeal 
 to the supreme court : Thomas v. Nicklas, 58- 
 49 ; Pellersells v. Allen, 56-717. 
 
 294. The trial and judgment: The ques- 
 tion to be determined is whether the justice 
 erred in the particular decision complained 
 
1032 
 
 JUSTICES OF THE PEACE, V, b; VI; VII. 
 
 Writ of error. — Attachment, etc. — Remedy for forcible entry, etc. 
 
 of in the aflSdavit for the writ of error : Hays 
 V. Gorby, 3-303 ; State v. Nichols, 5^13. 
 
 295. Tlie court will not, on the writ of 
 error, review the findings of the justice as to 
 questions of fact. Appeal is the proper rem- 
 edy: Taylor v, Rodkwell, 10-530; State v. 
 Money, 37-30. 
 
 296. And this is true, although all the evi- 
 dence before the justice is set out in a biU of 
 exceptions : Lane v. Goldsmith, 28-240. 
 
 297. The circuit court can render final 
 judgment only where no trial is necessary. 
 If there must be a new trial, the case should 
 be sent back to the justice. The circuit 
 court has no authority to retain and try the 
 case itself : Swan v. Bournes, 47-501. 
 
 298. On a writ of error from a judgment 
 of a justice of the peace upon a verdict 
 which did not properly specify the amount 
 of recovery, held, that upon determination 
 that the judgment was erroneous, the cause 
 should have been remanded to the justice and 
 the circuit court could not render judg- 
 ment: Bartlev. Plane, 68-337. 
 
 299. Under statutory provisions as to ap- 
 peals similar to those now regulating writs 
 of error, held, that upon reversal of the ac- 
 tion of the justice it was not proper to order 
 a new trial in the court in which the appeal 
 was decided: Davis v. Curtis, 2 G. Gr., 575. 
 
 300. Though the justice may not have had 
 jurisdiction, yet upon the removal to the 
 circuit court, that court obtains jurisdiction, 
 and its judgment is not void, although erro- 
 neous : Finch v. Hollinger, 47-173, 176. 
 
 301. The judgment of a justice should 
 not be reversed on writ of error for any 
 error which might have been corrected by 
 the justice on motion, unless such motion is 
 made and overruled: Leonard v. Hallem, 
 lJr-564; Smith v. Parker, 28-359. 
 
 30!i. If, after the application for and serv- 
 ice of the writ, but before the hearing, the 
 
 opposite party causes, the judgment to be 
 modified so as to correct the error, no objec- 
 tion to such modification being made, the 
 judgment should not be reversed on the hear- 
 ing, although the party making the modi- 
 fication might be required to pay the costs 
 of the proceeding by writ of eiTor : Eahn v. 
 Greer, 87-637. 
 
 yi. Attachment and uaenishment. 
 
 303. For less than five dollars: Although 
 attachments are not allowable in justices' 
 courts if the sum claimed is less than five 
 dollars, yet in such an action the judgment 
 may be for less than five dollars, and that 
 fact that it is will not necessarily render the 
 attaching plaintiff liable on his bond: Brad- 
 ley V. McOall, 2 G. Gr., 314. 
 
 304. Attachment of property of non-resi- 
 dents: The fact that the notice which is re- 
 quired to be posted in such cases does not 
 state the township in which the action is 
 pending will not render the judgment invalid : 
 Johnson v. Lodge, 19-106. 
 
 30.5. Garnishment of resident of another 
 county: The justice having jurisdiction of 
 the subject-matter and the defendant may 
 render judgment against a garnishee who has 
 answered, although he be a resident of 
 another county : Smith v. Dichson, 58-444. 
 
 VII. Kemedt foe forcible ENTET OB 
 
 DETENTION OF EEAL PEOPEETY.' 
 
 306. Jurisdiction of the action: A jus- 
 tice of the peace alone has original jurisdic- 
 tion in such proceedings, and therefore, when 
 an appeal is taken from his judgment, the 
 appellate court should try the case as made 
 before the justice, and not allow it to be 
 changed and entirely new issues made : Dicks 
 V. Hatch, 10-380. 
 
 1 Code, § 3B11. A summary remedy foi- forcible entry or detention of real property is allowable: 
 
 1. Where the defendant has by force, or intimidation, or fraud, or stealth, entered upon the prior actual pos- 
 session of another in real property, and detains the same; 
 
 2. Where a lessee holds over after the termination, or contrary to the terms of his lease; 
 
 3. Where the defendant continues in possession after a sale by foreclosure of a mortgage, or on execution, 
 unless he claims by a title paramount to the lien by virtue of which the sale was made, or by title derived 
 from the purchaser at the sale ; in either of which cases, such title shall be clearly and concisely set forth in 
 the defendant's pleading. 
 
 § 8616. The proceedings may be had before a justice of the peace of the township where the property is sit- 
 uated. . They shall be governed by the same rules as other cases before justices of the peace, except 
 as herein modified. 
 
JUSTICES OF THE PEACE, VU 
 
 1033 
 
 Remedy for forcible entry or detention of real property. 
 
 307. The district court can acquire no 
 jurisdiction in such cases, not even by stipu- 
 lation of the parties: Easton v, Fleming, 
 61-305. 
 
 308. Threats sufficient to induce fear of 
 •violent ouster, held sufficient to bring the 
 case within corresponding provision, al- 
 though personal violence was not threatened : 
 Harrow v. Barer, 2 G. Gr., 201. 
 
 309. A tenant holding o\er after the ex- 
 piration of his lease does not become a ten- 
 ant at will, entitled to thirty days' notice to 
 terminate such tenancy, but is entitled to 
 only the three days' notice to quit : Kellogg v. 
 Cfroves, 53-395. 
 
 310. Fraud in the execution of a lease un- 
 der which defendant holds possession cannot 
 be set up by him in justiflcation for holding 
 over after the expiration of such lease : Sim- 
 ons V. Marshall, 3 G. Gr., 502. 
 
 311. The tenant of property sold under ex- 
 ecution can be put out of possession by the 
 provisions of this section after the purchaser's 
 right to possession under his deed becomes 
 complete, notwithstanding such tenant may 
 have sowed or planted crops which are not 
 yet matured, they having been sowed or 
 planted with knowledge that his right to pos- 
 session would terminate before time for har- 
 vesting the same : Wlieeler v. Kirkendall, 67- 
 612. 
 
 312. Possession: The question involved in 
 the action is the fact of possession alone, and 
 not the right to possession. A person may 
 render himself liable to this action by enter- 
 ing on his own premises by force, fraud, or 
 stealth, even when he has the right to imme- 
 diate possession : Stephens v. McCloy, 36-659 ; 
 Emsley v. Bennett, 37-15. 
 
 813. The action may be brought by a tres- 
 passer who has had possession, even against 
 the real owner who has forcibly and illegally 
 turned him out of possession: Lorimier v. 
 Lewis, Mor., 253. 
 
 314. The right of a tenant to possession 
 under a contract of lease, under which he 
 has not had actual possession, cannot be as- 
 serted in this action: Krumweide v. Schroe- 
 der, 56-160. 
 
 315. There may be possession in fact of 
 uninclosed or unimproved land, and such 
 possession may be protected by this action, 
 which covers all cases of actual possession as 
 
 distinct from mere possession in law. To 
 constitute such possession it is not necessary 
 that the premises be surrounded with a fence 
 or built upon: Langworthy v. Myers, 4-18. 
 
 31G. Who may bring the action: By 
 statute (Code, § 3613) the legal representa- 
 tives of a person who might have brought 
 the action, if alive, may bring it after his 
 death. By legal representatives is meant the 
 executor or administrator. The riglit ot the 
 heir to bring such action exists without stat- 
 utory enactment : Beezley v. Burgett, 15-192. 
 
 317. Pleading; petition: A petition in 
 such action conforming in its averments to 
 the requirements of the statute is sufficient : 
 Simons v. Marshall, 3 G. Gr., 502. 
 
 318. Question of title cannot be tried in 
 this action. (See Code, § 3620.) The party 
 who has been in possession cannot make use 
 of such action instead of an action of right 
 in order to have the right of possession de- 
 termined : Settle V. Henson, Mor., 111. 
 
 319. Where defendant sets up a para- 
 mount title, or the question of title is other- 
 wise involved, the action cannot be main- 
 tained: Bosworth V. Farrenholtz, 4 G. Gr., 
 440. 
 
 320. Where the petition stated the title of 
 plaintiff for the purpose of showing that de- 
 fendant was a tenant holding over after the 
 termination of a tenancy at will, held, that 
 it did not thereby appear that title was in- 
 volved : Jordan v. Walker, 52-647. 
 
 321. Where defendant denied plaintiff's 
 title, and averred title in himself, such an- 
 swer not being in any way responsive to the 
 petition, and the averment being a mere 
 conclusion of law, held, that no question of 
 title was thereby raised : Jordan v. Walker, 
 56-686. 
 
 322. Where plaintiff alleged entry by de- 
 fendant by fraud and stealth, and defendant, 
 denying entry by fraud and stealth, alleged 
 that he had entered and was in possession 
 with permission of plaintiff under a contract 
 of purchase, held, that this allegation did 
 not raise a question of title, but was in effect 
 a mere denial of plaintiff's allegations : Oleson 
 V. Hendrickson, 12-223. 
 
 323. Proof of title is not admissible for 
 the purpose of showing constructive posses- 
 sion in the absence of other evidence of 
 possession: Stephens v. McCloy, 36-659. 
 
1034 JUSTICES OF THE PEACE, VU — LANDLORD AND TENANT, L 
 
 Remedy for forcible entry, etc. — The lease, etc. 
 
 324. Notice to quit:i Under particular 
 facts, held, that defendant went into posses- 
 sion as assignee of an unexpired lease, and 
 not by stealth, and was, therefore, at the ex- 
 piration of the lease, entitled to three days' 
 notice to quit : Gifford v. King, 54-525. 
 
 325. Proof of service of such notice by 
 affidavit of a person not an officer, in the 
 manner provided for service of original no- 
 tices by private persons, is not sufficient to 
 entitle the notice to be received in evidence 
 without further proof. The notice is not one 
 in an action, but one which forms the basis 
 of a private right, and must be proved as 
 any other matter in pais: HolUngsworth v. 
 Snyder, 3-435. 
 
 326. The fact that instead of serving the 
 three days' notice to quit, required by the sec- 
 tion last above referred to. service is made of 
 a thirty days' notice to terminate a tenancy at 
 ■will, as authorized by Code. § 2015, the case 
 "being one in which no such thirty days' no- 
 tice is necessary, will not render the proceed- 
 ings under such notice, after the expiration 
 of thirty days from the service thereof, void 
 and without jurisdiction, but will be an ir- 
 regularity only: Shuver v. Klinkenberg, 67- 
 544. 
 
 327. Notice of suit: The fact that the no- 
 tice is served nine days before the time fixed 
 for appearance instead of two to six days as 
 provided by Code, § 3617, will not deprive 
 the court of jurisdiction nor render its pro- 
 ceedings void. The notice wiU be defective 
 only: Ibid. 
 
 328. Appeal: Although parties may not 
 on appeal file amended pleadings changing 
 the issues before the justice, yet where the 
 issue remained the same and the amendment 
 was merely for the purpose of more fully de- 
 scribing the property, and was unnecessary 
 in the absence of a motion for a more specific 
 statement, held, that the allowance of such 
 amendment was not improper: Kuhn v. 
 Kuhn, 70 . 
 
 329. Issuance and execution of an order 
 of removal, after judgment for plaintiff in 
 3uch an action, should not be enjoined on the 
 averment that defendant intends to ap- 
 peal. Whether after appeal is taken he might 
 Tiave such injunction upon a showing that he 
 
 will sustain irreparable injury, quoere. (By 
 statute, McClain's Ann. Stat., §3633^, appeal 
 does not prevent the warrant of removal 
 being executed, except by consent) : Curd v, 
 Farrar, 47-504. 
 
 330. The fact that plaintiff has prosecuted 
 to judgment a second action of forcible entry 
 and detainer constitutes a waiver of his 
 right to appeal in a former action for the 
 same purpose in which he has been defeated: 
 Liebuck v. Stahle, 66-749. 
 
 331. Bar: Peaceable and uninterrupted 
 possession for thirty days, with knowledge of 
 plaintiff, is by statute declared to be a bar to 
 the action (Code, § 3631), but neither the 
 good faith with which the defendant went 
 into possession, nor the fact that he made im- 
 provements on the property, are material nor 
 sufficient to constitute a defense in the ab- 
 sence of the kind and length of possession 
 contemplated : Fultz v. Black, 3-569. 
 
 LANDLORD AND TENANT. 
 
 I. The lease and kiqhts thebbundeb; 
 bent; bepaies; impbovements ; dam- 
 ages. 
 II. Tenanct at will; notice to teemi- 
 
 NATE ; EMBLEMENTS. 
 III. LANDI^OED'S LIEN. 
 
 As to mining leases, see Mining. 
 
 As to Licenses, see that title. 
 
 As to liability of landlord for permitting 
 use of premises for illegal sale of hquors, see 
 Intoxicating Liqtjoes, §§ 308-211. 
 
 As to what notice or knowledge will render 
 landlord liableforpeimittingsuch use of prem- 
 ises, see Intoxicating Liquoes, §§ 140-142. 
 
 I. The lease and eights theee- 
 
 UNDEE. 
 
 1. Right to lease: A partyshows apriTna 
 facie right to lease property by the fact that 
 he is in possession thereof by consent of the 
 owner, and delivers such possession: Gold- 
 smith V. Wilson, 68-685. 
 
 3. Term : It is essential to a lease for years 
 that it be for a definite period, or for a pur- 
 pose which of itself seems to ascertain the 
 
 3611, supral. 
 
 ' Code, § 3B14. Before suit can be brought in any except the first of tlie above classes [in sec. 
 three days' notice to quit must be given to the defendant in writing. 
 
LANDLORD AND TENANT, I. 
 
 1035 
 
 The lease and rights thereunder ; rents, etc. 
 
 length of time for which the premises are to 
 be occupied : Melhop v. Meinhart, 70 . 
 
 3. Acceptance: Facts in a particular case 
 held not sufficient to constitute an acceptance 
 of a contract of lease binding upon the lessor : 
 Clifford V. King, 54-535. 
 
 4. Consideration for reduction of rent: 
 An indorsement by the landlord on the lease 
 of an agreement to reduce the rent to a 
 lower sum may be in consideration of a sup- 
 posed advantage to him in retaining the ten- 
 ant and enabling him to carry on business, 
 and is therefore binding. It is essentially the 
 same thing as if the original lease had been 
 surrendered and a new lease substituted pro- 
 viding for the reduced rental: Jaffray v. 
 Greertbaum, 64r-492. 
 
 5. Mei^er: The purchase by the landlord 
 of a lease upon his own property will not 
 merge the leasehold interest into the fee title 
 so as to divest the outstanding interest in the 
 leasehold estate already acquired in good 
 faith. For the protection of such outstand- 
 ing interest the lease will, if necessary, be 
 kept alive : Denham v. Sankey, 38-269. 
 
 6. Surrender: A lease may be terminated 
 by agreement which need not be express 
 but may be inferred from the circumstances. 
 The circumstances of a particular case, how- 
 ever, held not sufBcient to show a surrender 
 and discharge of the tenant: Martin v. 
 Steams, 53-345. 
 
 7. As between the landlord and tenant, the 
 execution of a new lease for the unexpired 
 term of the former lease operates as an ex- 
 tension of the old lease, so that the respective 
 rights of the parties thereto wiU be governed 
 by the new lease. But held, that a mort- 
 gagee whose mortgage was subordinate to 
 
 , the lien of the landlord under the old lease 
 did not acquire priority over such lien under 
 the new lease as to the rent for the unex- 
 pired term of the old lease : Rollins v. Proc- 
 tor, 56-336. 
 
 8. Renewal : Where a lease was given for 
 two years, to terminate at the expiration of 
 that time, subject to be continued or renewed 
 upon notice, security for the rent being 
 given, the giving of notice and security with- 
 out demand are conditions precedent to the 
 renewal of the lease, and unless performed 
 the instrument ceases to operate for a future 
 term : McFadden v. McCann, 25-253. 
 
 9. Assignment: A lease may be assigned 
 by the lessor so as to give the assignee the 
 right to recover the rent reserved, without a 
 sale or transfer of the reversionary interest: 
 Watson V. Hunkins, 13-547. 
 
 10. The assignment of a lease, by which a 
 certain share of the crop is reserved as rent, 
 passes all the right of the landlord in such 
 crops, and they cannot afterward be levied 
 on as his property by a party having knowl- 
 edge of the assignment : Imfkin v. Preston, 
 53-385. 
 
 11. Where the lease is assigned by the 
 lessor, the assignee is entitled to a landlord's 
 attachment. The assignment carries with it 
 the lien of the lessor and all the remedies 
 for its enforcement: Haywood v. O'Brien, 
 53-587., 
 
 12. Although a lease contains a provision 
 that it shall not be assigned, a violation of 
 such stipulation will not of itself waiTant a 
 forfeiture in the absence of any declaration 
 of forfeiture, and in the absence of such 
 declaration the right to collect rents, given 
 by the terms of the lease, remains : Eldredge 
 V. Bell, 64-135. 
 
 13. Liability for rent after assignment: 
 Where a lease containing an express cove- 
 nant, bindiug the tenant personally to pay the 
 rent, was assigned without the written con- 
 sent required by the lease, but with the 
 knowledge of the landlord, who accepted 
 rent from the assignee, executing receipts 
 therefor to the first tenant, held, that the 
 first tenant was not discharged from his 
 obligation to pay the rent: Barhydt v. 
 Burgess, 46-476. 
 
 14. Also held, in such case, that failure of 
 the landlord to assert a Hen as against the as- 
 signee and his property, although notified to 
 do so by the first tenant, did not dischai-ge 
 such tenant from his personal habiUty : Ibid. 
 
 15. Acceptance of the rent from the as- 
 signee of the lease, even where there is an 
 express covenant by such assignee to pay the 
 rent, will not discharge the fii'st lessee : Sar- 
 ris V. Heackman, 63-411. 
 
 1 6. Where a party went into possession of 
 premises under the beUef that he had a con- 
 tract for the assignment of the lease thereof 
 from a prior tenant, and the landlord re- 
 fused, as was his right under the provisions 
 of the lease, to consent to such assignment. 
 
1036 
 
 LANDLORD AND TENANT, I. 
 
 The lease and rights thereunder ; rents, etc. 
 
 held, that the party who had thus taken pos- 
 session might, upon payment of rent for the 
 term of the actual occupancy by him, sur- 
 render the premises, and would not be liable 
 for further rent under the terms of the lease, 
 and a lien for such rent could not be enforced 
 against his property : Stibbsv. 4gi»e)% 65-318. 
 
 17. Where the lease was blank as to the 
 amount of rent which the lessee covenanted 
 to pay, held, that the lease amounted only to 
 an implied covenant to pay rent, which was 
 determined upon an assignment of the lease 
 and the acceptance of rent from the assignee : 
 Fanning v. Stimson, 13-43. 
 
 18. Sub-lease: Where the lessee enters 
 into an agreement with a third person for the 
 occupation of the leased premises by the lat- 
 ter, reserving new rents and providing for 
 the delivery of possession to the original 
 lessee and not to his lessor, such agreement 
 amounts to a sub-letting and not to an assign- 
 ment of the original lease : Collamer v. Kel- 
 ley, 12-319. 
 
 19. Merger: In such case, if the original 
 lease passes by assignment to a party who 
 holds the premises under the assignment of 
 the sub-lease, the sub-lease thereby becomes 
 merged in the original lease, and the obliga- 
 tion to pay the excess of rent provided for in 
 the sub-lease over that specified in the origi- 
 nal lease terminates : Ihid. 
 
 20. Covenants: Where a contract of lease 
 provided by way of covenant that the tenant 
 was to build a building upon the premises for 
 which the landlord was to pay, at the expira- 
 tion of the lease, such a price as three disin- 
 terested parties should fix upon it, held, that 
 such covenant was one running with the land, 
 and that it was binding upon the person to 
 w^hom the land was sold, and the lease trans- 
 ferred by the original landlord : Frederick v. 
 Callahan, 40-311. 
 
 15 1. To entitle a tenant to recover from a 
 landlord for breach of implied covenants for 
 quiet enjoyment, where the landlord's title is 
 terminated by judicial sale and expiration of 
 the period of redemption under a, judgment 
 which was a lien on the premises at the time 
 of the execution of the lease, it is not neces- 
 sary to show actual eviction, but it is sufficient 
 to show that a title accrued superior to that 
 of the lessor, and that the purchaser assei'ted 
 such title and right of possession by giving 
 
 notice to the tenant that he claimed the rent : 
 Kanev. Minh, 64-84. 
 
 22. Certain covenants in a lease in regard 
 to sale of the property by lessor construed, 
 and Md that the term "sale," as therein 
 used, was a sale terminating the right of 
 possession by either party and not a mere 
 contract of sale contemplating future convey- 
 ance and delivery of possession: Stewart v. 
 Pier, 58-15. 
 
 23. Rent is a certain profit either in money, 
 provisions, chattels or labor, issuing out of 
 lands and tenements in retribution or return 
 for their use : Merritt v. Fisher, 19-354. 
 
 24. Share of crops as rent: A share of 
 crops reserved by the lease to the landlord is 
 to be regarded as rent: Toionsend v. Isen- 
 berger, 45-670. 
 
 25. The owner of the land acquires no 
 property in the part of the crop reserved for 
 rent, until it has been set apart to him by the 
 tenant: Ibid.; Blake v. Coats, 3 G. Gr., 548; 
 Rees V. Baker, 4 G. Gr., 461. 
 
 26. The rent is not paid until the share of 
 the crop is set apart, and is not payable 
 until that can be done: Townsend v. Isen- 
 berger, 45-670. 
 
 27. And the landlord will be liable for 
 trespass in going upon the leased premises 
 and taking a portion of the crop before it is 
 harvested: Blake v. Coates, 3 G. Gr., 548. 
 
 28. So where a landlord leased premises to 
 a tenant for the purpose of raising a crop of 
 winter wheat, and the tenant prepared the 
 soil and sowed the crop, which was winter 
 killed, held, that the landlord, although the 
 agreed rent was a share of the crop, was not 
 entitled to possession until after the time 
 when the crop would have been harvested, 
 and upon taking possession of the premises 
 and planting another crop thereon, he was 
 liable to the tenant for the value of the labor 
 previously spent by the tenant in the prepa- 
 ration of the soil for the winter wheat: Sees 
 V. Baker, 4 G. Gr., 461. 
 
 29. When land is rented on shares the 
 tenant is the exclusive owner of the crop 
 while growing, and the landlord has no con- 
 trol over it, nor title to the part reserved as 
 rent, until it is set apart to him: Howard 
 County V. Kyte, 69-307. 
 
 30. A landlord has no such interest in the 
 growing crops of his tenant as to enable him 
 
LANDLORD AND TENANT, I. 
 
 1037 
 
 The lease and rights thereunder ; rents, etc. 
 
 to maintain an action against a person who 
 injures the crop : Drake v. Chicago, R. I. & 
 P. B. Co., 70 . 
 
 31. As between the tenant and the pur- 
 chaser at foreclosure sale under a mortgage 
 against the landlord, crops which are ma- 
 tured though not harvested are to be re- 
 garded as personal property not passing by 
 the sale : Hecht v. Dettman, 56-679. 
 
 82. Where a lease to a field tenant pro- 
 vided that the tenant should pay a portion 
 of the crop raised as rent, and there was no 
 stipulation as to the time when such pay- 
 ment should be made, lield, that there could 
 be no action for a money judgment upon 
 failure of the tenant to deliver the portion 
 of the crop due as rent until demand there- 
 for had been made, even though by the terms 
 of the statute (Code, § 2015) such a lease ter- 
 minates upon the first day of December of 
 the year for which the lease is made : John- 
 son V. Shank, 67-115. , 
 
 33. The measure of damages in an action 
 by the landlord for rent payable in grain is 
 its value when first demanded : Safely v. Gil- 
 more, 21-588. 
 
 34. When by the terms of the lease the 
 tenant is to deliver a part of the crop in crib, 
 the ownership vests at once in the landlord, 
 or his assignee, when the crop is cribbed, 
 and he may bring replevin for the possession : 
 Hatfield v. Lookwood, 18-296. 
 
 35. Where the lease provided that the rent 
 should become due " when the crop matures 
 or any portion of it shall be fit for market," 
 held, that an action for the rent brought when 
 oats raised on the premises were in stack, 
 and the corn was ripe, and the tenant had 
 commenced to gather and feed it, was not 
 premature: Hull v. Stogdell, 67-251. 
 
 36. Rate of rental in absence of con- 
 tract: If a tenancy is without stipulation as 
 to the amount of rent, the landlord can re- 
 cover a fair consideration for the use and 
 occupation of the premises: Neu-ell v. San- 
 ford, 13-191. 
 
 37. Rate where tenant holds over: A 
 tenant holding over without any new terms 
 fixed, tacitly consents to the terms of the 
 former lease : IMd. 
 
 88. Implied liability: From the occu- 
 pancy of premises, belonging to a manied 
 son, by hjs mother, not a member of his fam- 
 
 ily, the law would presume the obligation to 
 pay rent in the absence of any express un- 
 derstanding that she was to occupy rent free : 
 Harlan v. Emery, 46-538. 
 
 39. Liability for rent after destruction 
 of buildings: The fact that during the ex- 
 istence of the lease a building on the leased 
 premises is destroyed by fire will not tei'mi- 
 nate the liability of the lessee for rent, even 
 though the building is a wooden one, and by 
 the terms of an ordinance existing at the 
 time of the lease, or afterwards enacted, the 
 rebuilding of the structure would be unlaw- 
 ful : Harris v. Heackman, 62-411. 
 
 40. Conveyance; passing rent not ac- 
 crued: Rent reserved by lease and not ac- 
 crued passes to the grantee by the conveyance 
 of the land : Aheraromhie v. Redpath, 1-111 ; 
 Townsend v. Isenberger, 45-670. 
 
 41. A purchaser under execution sale is 
 entitled to the rent accruing or falling due 
 after the execution of his deed, and this is 
 true even where the sale is in an attach- 
 ment proceeding upon notice by publication : 
 Townsend v. Isenberger, 45-670. 
 
 42. The assignment of a bond for a deed, 
 made before rent has accrued under the 
 lease for a year, and which transfers all the 
 right, title and interest of the assignor, car- 
 ries with it the rent so accruing, but it is 
 otherwise where the assignment is made 
 after the rents have accrued, unless an in- 
 tention be shown to pass the accrued claim : 
 Van Driel v. Rosierz, 26-575. 
 
 43. Tenant liable only to landlord: A 
 tenant who has leased from a person in pos- 
 session claiming title, and has paid rent to 
 him according to the lease, cannot be made 
 liable to a third person who has established 
 his ownership to the property by decree of 
 the court after the rent is paid, even though 
 the tenant knew of such claim before tak- 
 ing possession under the lease: Kieth v. 
 Paulh, 55-260. 
 
 44. As the tenant cannot deny his land- 
 lord's title, a third person claiming to be the 
 owner of the premises cannot recover from 
 the tenant in an action at law under the 
 lease: Hueskanvp v. Van Leuven, 56-653. 
 
 45. Payment by consent to third person : 
 Where the tenant by implied consent of the 
 landlord pays rent to a thii-d person with 
 whom the landlord is in controversy as to 
 
1038 
 
 LANDLORD AND TENANT, I. 
 
 The lease ; improvements ; repairs ; estoppel. 
 
 who is entitled to the rent, the landlord is 
 thereby estopped from aftei-ward recovering 
 the rent so paid: Winterinh v. Maynard, 47- 
 366. 
 
 46. Liability for rent continues witli 
 possession : Where property upon the leased 
 premises had been seized by the sheriff under 
 attachment at the suit of the landlord, but 
 there was no surrender of the premises by the 
 tenant, nor eviction therefrom, held, that the 
 tenant's liability for rent still continued: 
 Daniels v. Logan, 47-395. 
 
 47. Improvements: A tenant at wiU who 
 has erected buildings on real estate with- 
 out an agreement for removing them has 
 no right to or interest in such improve- 
 ments. They become attached to and a 
 part of the realty and belong to the owner : 
 Wheeler & Wilson Mfg. Co. v. Hasbrouh, 68- 
 554. 
 
 48. A building erected by the tenant upon 
 leased premises which cannot be removed by 
 him becomes attached to such premises and 
 is subject to the same rules as to liens and 
 conveyances which apply to the interest of the 
 tenant in the land, and a judgment against 
 a tenant will be a lien upon his interest in 
 the land including such buildings, and para- 
 mount to a subsequent chattel mortgage ex- 
 ecuted by him upon the buildings. Indeed, 
 it would appear that the same rule would 
 apply even though the building thus erected 
 by the tenant was erected with the right to 
 remove it at the end of the term : Hayden v. 
 Qoppinger, 67-106. 
 
 49. Obiigation to repair: Under a lease 
 binding the lessee to keep the premises in a 
 good state of repair, he may be compelled to 
 rebuild in case of total destruction by fire, 
 even though subsequent to the execution of 
 the lease the fire limits of the city in which 
 the property is situated are so extended that 
 in rebuilding the lessee must construct a 
 more expensive building than the one burned : 
 David V. Byan, 47-643 ; Harris v. Heackman, 
 62-411. 
 
 50. Eight of access: A tenant who leases 
 land, is bound to inquire as to the means of 
 access thereto, and it does not constitute 
 fraud on the part of the landlord, in the ab- 
 sence of misrepresentations, to lease property 
 to which there is no means of access : Han- 
 drdhan v. O'Regan, 45-398. 
 
 51. Tenant cannot deny landlord's title: 
 
 A tenant wUl not, during the existence of 
 the tenancy, be allowed to deny the title of 
 his landlord. He may contest the title of 
 the lessor, if he has been evicted or has 
 yielded the possession to one having a para- 
 mount title, but not when the adverse title 
 has been asserted by his own procurement or 
 bad faith : Stout v. Merrill, 35-47. 
 
 52. If the landlord's title has been extin- 
 guished, or is terminated after the tenant 
 has entered under the lease, and the tenant 
 has the right to possession derived from 
 another source, this may be shown by him 
 against the lessor's claim : Ibid. 
 
 53. A sub-tenant may show that the land- 
 lord, and not his immediate lessor, has dis- 
 possessed him and given him a new lease. A 
 lessee may also show that the lessor has as- 
 signed his title and that he has become 
 bound thereby to the assignee : Ibid. 
 
 54. A tenant may surrender possession to 
 the holder of a paramount title, and take a 
 new leeise or abandon the premises and resist 
 the landlord's claim by setting up a para- 
 mount title, but he can only dispute the title 
 of his lessor in any of these ways where it is 
 necessary for his own protection. In all 
 cases where he may surrender the lease or 
 abandon possession and afterward resist the 
 claim of the landlord, he can do so only upon 
 notice or after some other act that wiU give 
 the lessor an opportunity to take possession 
 or in some other way vindicate his right to 
 the land : Ibid. 
 
 55. Even if the term of the lease has ex- 
 pired the tenant cannot dispute his landlord's 
 title until he shall have made some explicit 
 and open disavowal of holding under the 
 landlord and asserted a claim under another, 
 which fact must be brought home to the 
 knowledge of the landlord : Ibid. 
 
 56. Therefore, held, that a tenant could 
 not purchase and set up as against his land- 
 lord the outstanding right of a minor to de- 
 feat the landlord's title by redeeming from 
 a tax sale under which the landlord held: 
 Ibid. 
 
 57. A tenant cannot, before the expiration 
 of his lease andwhile in possession under it, 
 deny his landlord's title: Bowdish v. Dur 
 buque, 38-341. 
 
 68. Where a party has possession as a mere 
 
LA^^DLORD AND TENANT, I. 
 
 1039 
 
 The lease ; estoppel ; damages. 
 
 trespasser, and afterwards by compromise 
 accepts a lease of the premises of the real 
 owner, his possession is to be deemed de- 
 rived from the landlord in such sense that he 
 cannot afterwards set up title against the 
 landlord in an action for possession of the 
 premises: Ibid. 
 
 59. In an action on a note given in consid- 
 eration of a lease, defendant may show that 
 there was no consideration for the reason 
 that plaintiff had no title to the leased 
 premises, and defendant did not and could 
 not have obtained possession under such 
 lease. Such defense is not precluded by the 
 rule that defendant cannot dispute the land- 
 lord's title : Andrews v. WoodcocJc, 14-397. 
 
 60. The provision of Code, § 2013, that an 
 attornment by a tenant to a stranger is void 
 unless made to a mortgagee after the mort- 
 gage has become forfeited, means only that 
 such attornment may be made after all rights 
 of the mortgagor to the mortgaged premises 
 have been lost by foreclosure and the expira- 
 tion of the year of redemption: Mills v, 
 Hamilton, 49-105 ; Mills v. Heaton, 53-315. 
 
 61. A tenant holding under an executor, 
 and having, as tenant, paid rents to such ex- 
 ecutor, is estopped from denying the execu- 
 tor's right to recover the balance due on rent : 
 Sullivan v. Finn, 4 G. Gr., 544. 
 
 62. Fraud on the part of the landlord in 
 obtaining the lease cannot be set up for the 
 purpose of defeating the landlord's title: 
 Simons v. Marshall, 3 G. Gr., 503. 
 
 63. Damages: If the lessor refuses to per- 
 mit the lessee to occupy the premises in 
 accordance with the agreement, he thereby 
 renders himself liable to an action for dam- 
 ages. The tenant is not in such case confined 
 to an action of ejectment against the land- 
 lord: Adair V. Bogle, 20-338. 
 
 64. The general rule for the measure of 
 damages in such case is the difference be- 
 tween the rent reserved and the value of the 
 premises for the term, and if the value of the 
 premises does not exceed the rent reserved, 
 the tenant not being substantially injured 
 can in general recover only nominal damages, 
 even though the refusal of the landlord to 
 give possession is without just cause ; and it 
 makes no difference in the application of 
 this rule that the rent reserved is payable in 
 kind instead of money : Ibid, 
 
 65. But if the tenant has sustained in ad- 
 dition a particular loss which is the direct 
 and necessary or natural consequence of the 
 breach of contract by the landlord, he may 
 recover therefor. Thus, be may recover th& 
 necessary loss of time in looking for another 
 place or seeking other employment, though, 
 damages resulting from the failure to get 
 another place would, in ordinary cases, not 
 be recoverable : Ibid. 
 
 66. In determining the amount of damage 
 testimony may be received in such a case to 
 show the usual or customary terms on which 
 farms in the same neighborhood were let: 
 Ibid. 
 
 67. Where lessee is wrongfully kept out of 
 possession, the measure of damages is the 
 market rental value less the rent agreed to 
 be paid, and in the absence of stipulations 
 that the lessor shall be liable for more than, 
 the rental value, the lessee cannot recover the 
 prospective profits of the business : Alexan-^ 
 der V. Bishop, 59-573. 
 
 68. Under a lease of a building for hotel 
 purposes, by which the landlord agreed to- 
 finisli up the office and other parts of the 
 building for such purposes, commencing from, 
 a certain day, held, that the lease should be 
 construed to require the premises to be ready 
 for occupancy from that time with safety 
 and security, and that the landlord was liable 
 for damages resulting from failure to fulfill 
 such agreement: Sujift v. East Waterloo- 
 Hotel Co.. 40-833. 
 
 69. The fact that the tenant takes posses- 
 sion of the premises with full knowledge 
 that they are not in the condition required 
 by the terms of the lease, and makes no ob- 
 jection on that grotmd, will not constitute a 
 bar to his recovery nor show waiver of his 
 rights, but will only constitute evidence 
 tending in some degree to show the fact that 
 there were no such defects : Ibid. 
 
 70. Wliere a lease provided that the lessor 
 should put the fences in sufficient repair, and 
 the lessee should keep them in as good con- 
 dition as he received them, and the lessor did. 
 in fact make repairs of the fences and lessee 
 accepted the fai-m without objection, held, 
 that the lessee was estopped from objecting to 
 the fences, and was under obligation tp after- 
 ward keep them in repair: Williamson v.. 
 Miller, 55-86. 
 
1040 
 
 LANDLORD AND TENANT, II. 
 
 Tenancy at will ; notice to terminate. 
 
 71. Where the tenant claims actual dam- 
 ages for failure of the landlord to put the 
 premises in the condition required by the 
 terms of the contract, it is not proper to allow 
 the landlord to show that he employed skil- 
 ful mechanics, good material, etc., in the 
 repair of the premises : Sivift v. East Water- 
 loo Hotel Co., 40-323. 
 
 72. The fact that the landlord, being the 
 owner of a lot adjoining the leased premises, 
 excavated the cellar upon such adjoining 
 lot for the purpose of erecting a building, 
 and thereby caused the use of the basement 
 of the leased premises to be unprofitable by 
 reason of the cold, held not sufficient to render 
 the landlord liable to the tenant : MoMillin 
 V. Staples, 36-533. 
 
 73. Under a lease binding the tenant to 
 cultivate the premises in a good, farmer-like 
 manner, and keep the buildings and fences 
 in good repair, he will be liable in damages 
 for mismanagement of the premises, such as 
 permitting fruit trees to be injured by sheep : 
 Elbert v. Wilson, 3 G. Gr., 520. 
 
 74. Where by the terms of the lease the 
 landlord was to have the cornstalks upon the 
 leased farm and the lessee sub-let to a sub- 
 tenant who sold his crop to defendant who 
 turned in cattle, eating up the stalks and 
 damaging trees, fences, shrubbery, etc., held, 
 that defendant was liable to the landlord 
 for such damage: Babley v. Vyse, 48-481. 
 
 II. Tenanct at will ; notice to ter- 
 minate; EMBLEMENTS. 
 
 75. What constitutes: Continuance in pos- 
 session by the tenant with consent of the 
 landlord after the expiration of his term of 
 years implies, in the absence of express agi-ee- 
 ment, that the premises are held on the for- 
 mer terms, but want of consent on the part 
 of the landlord prevents the application of 
 this rule. A tenant in possession under an 
 agreement to lease, without having paid rent, 
 is a tenant at will, and so is one who, after 
 his lease has expired, is permitted to con- 
 tinue in possession pending a treaty for a 
 further lease : Dubuque v. Miller, 11-583. 
 
 7G. Where property is bought in at execu- 
 tion sale under such circumstances that there 
 is no right of redemption, but the execu- 
 tion defendant is allowed to remain in pos- 
 
 session during the year following the sale 
 and thereafter, he becomes a tenant at will: 
 Dobbins v. Lusch, 53-304 ; Munson v. Plum- 
 mer, 59-120. 
 
 77. All the right and interest of a tenant 
 is terminated by judicial sale without right 
 of redemption made under a judgment which 
 was a hen on the premises prior to the lease, 
 and if the tenant continues in possessiou 
 after the sale, and notice to him by the pur- 
 chaser, he does so not as tenant under his 
 lease, but as tenant at will of the purchaser, 
 and is liable to account to the latter for the 
 use of the premises after the sale : Kane v. 
 Mink, 64-84. 
 
 78. A person in possession not recognizing 
 the owner as landloi-d cannot be regarded as 
 a tenant at will : Martin v. Knapp, 57-336. 
 
 79. Notice to terminate the tenancy: 
 Where a tenancy is to cease at an agi-eed 
 time, the tenant is not entitled to the thirty 
 days' notice to quit provided for by Code, 
 § 2015, with reference to notice required to 
 terminate a tenancy at will: Shuver v. 
 Klinkenberg, 67-544. 
 
 80. Where a tenant was in possession un- 
 der an agreement to occupy as long as he 
 was in the employ of the landlord, held, that 
 after leaving such employ he was a tenant 
 holding over after the expiration of his lease 
 and not a tenant at will, and therefore was 
 only entitled to three days' notice to quit be- 
 fore action of forcible entry and detainer; 
 Orosvenor v. Henry, 27-369. 
 
 81. A tenant holding over after the expira- 
 tion of his lease does not become entitled as 
 tenant at will to thirty days' notice to tei-mi- 
 nate the tenancy, but only to thj-ee days' no- 
 tice before expulsion by action of forcible 
 entry and detainer: Kellogg v. Groves, 53- 
 395. 
 
 82. A notice to quit the house is sufficient 
 notice to quit the land upon which the house 
 is situated : Kuhn v. Kuhn, 70 . 
 
 83. The provisions of Code, § 2015, that a 
 field tenant's lease shall terminate not later 
 than the first day of December, does not 
 establish a rule for the government of parties 
 in making their contract, but simply fixes 
 the time at which, in the absence of express 
 agreement to the contrary, the lease shall 
 terminate. The time thus fixed by statute 
 for the termination of the lease does not be- 
 
LANDLORD AND TENANT, II, III. 
 
 1041 
 
 Notice to terminate ; emblements. — Landlord's lien. 
 
 come a part of the contract with reference to 
 the time for the payment of rent where no 
 express time is stipulated : Johnson v. Shank, 
 67-115. 
 
 84. Where notice was served to terminate 
 a tenancy at will, but the defendant continued 
 in possession for some years thereafter, held, 
 that he did not stand in any different position 
 after such notice : Newell v. Sanford. 13-191. 
 
 85. Notice to terminate mining licenses: 
 A person in possession under a parol license to 
 mine is a tenant at wiU and entitled to the 
 thirty days' notice to terminate the tenancy 
 required in other cases: Bush v. SvlUvan, 3 
 G. Gr., 344; Beatty v. Gregory, 17-109; 
 Harkness v. Burton, 39-101. 
 
 86. Emblements: In order to entitle a ten- 
 ant, or his executor or administrator, to em- 
 blements, his tenancy must be uncertain in 
 its duration, and must be determined by the 
 act of God or the act of the lessor or owner : 
 Eeilly v. Ringland, 39-106 ; Reilly v. Ring- 
 land, 44-423. 
 
 87. A tenant having the right to emble- 
 ments has the corresponding right to enter 
 on the premises and harvest the crops gi'ow- 
 ing at the termination of his tenancy : Ibid. 
 
 88. Therefore, held, that an occupying 
 claimant who, under the provisions of stat- 
 ute, became entitled to occupy the premises 
 until his judgment for improvements was 
 paid, became a tenant at will, and upon the 
 termination of his tenancy by the payment 
 of the judgment was entitled to emblements : 
 Ihid. 
 
 89. A mortgagor is not entitled to em- 
 blements: Downard v. Groff, 40-597. 
 
 90. Where a lease was gi-anted subse- 
 quently to the mortgage without the concur- 
 rence of the mortgagee, and the assignee of 
 the mortgage became the purchaser under a 
 foreclosure and sale of the premises, lidd, 
 that he was entitled to the emblements and 
 might maintain trespass against the mort- 
 gagor or his lessee for taking and carrying 
 away crops growing at the time of the sale : 
 Ihid. 
 
 '91. Where a defendant appealed from a 
 judgment of foreclosure against him without 
 superseding the judgment, and pending the 
 appeal the premises covered by the mort- 
 gage were sold under the judgment to the 
 plaintiff, who, however, did not demand pos- 
 VOL. 1 — 66 
 
 session until after the affirmance of the judg- 
 ment on appeal, the plaintiff in the mean- 
 time having sown a crop on the premises; 
 held, in an action against a party who had 
 acquired title to the crop from the judgment 
 defendant, in which it was sought to recover 
 the value thereof, that the judgment defend- 
 ant was a tenant at will, and as such entitled 
 to the growing crops planted before the ter- 
 mination of the tenancy : Dobbins v. L/usch, 
 53-304. 
 
 III. Landlord's liek. 
 
 92. Possession: The same virtue exists 
 under statutory liens in which the possession 
 does not pass as under common law Uens 
 accompanied by possession : Grant v. Whit- 
 well, 9-153. 
 
 93. To what property applicable: The 
 provisions as to landlords' liens apply to leases 
 of town property as well as to those of agri- 
 cultural land ; Ibid. 
 
 94. Lien covers what: The property " used 
 on the premises" which by statute (Code, 
 § 3017) is subject, to the landlord's lien is only 
 intended to imply such use as is incident to 
 the nature and purpose of the occupation of 
 the premises and the object of the tenancy : 
 Ibid. 
 
 95. Therefore, held, that the lien attached 
 to cloths and goods of a merchant tailor, 
 used for the purpose of selling and making 
 up into garments for customers : Ibid. 
 
 96. A landlord has no lien upon property 
 of third persons, although it may have been 
 used by the tenant upon the premises during 
 the term of the lease. So held as to house- 
 hold property belonging to the wife used in a 
 hotel leased by her husband : Perry v. Wag- 
 goner, 68-403. 
 
 97. A lien attaches to all crops grown upon 
 the demised premises, whether grown by the 
 tenant or by othera claiming under him: 
 Houghton v. Bauer, 70^ . 
 
 98. Where a grocer used horses and wagons 
 in connection with his business, but did not 
 keep them on the premises lesised for a gro- 
 cery, held, that the landlord owning such 
 premises did not have a lien upon such horses 
 and wagons : Va7i Patten v. Leonard, 55-530. 
 
 99. The landlord does not, under the stat- 
 ute, acquire a lien upon notes, drafts, ac- 
 
1042 
 
 LANDLORD AND TENANT, III. 
 
 Landlord's lien. 
 
 counts, etc., kept upon the leased premises ; 
 Ibid. 
 
 100. Priority: A creditor of the tenant 
 cannot, by levy on a growing crop, acquire 
 l)riority over the landlord's lien for rent : At- 
 kins V. Womeldorf, 53-150. 
 
 101. Where the rent is payable in a shai-e 
 of the crops, the landlord has a lien for such 
 share, and when the tenant is to gather such 
 share and does not, the landlord has a lien, 
 also, for the value of the labor necessary to 
 gather the same : Secrest v. Stivers, 35-580. 
 
 102. While the right of property in grow- 
 ing crops planted on the shares is, as between 
 landlord and tenant, in the tenant until di- 
 vision is made, yet a creditor of the tenant 
 cannot seize upon the whole crop to the ex- 
 clusion of the landlord's lien for rent : Atkins 
 V. Womeldorf, 53-150. 
 
 103. The hen of the landlord is inferior to 
 that of a recorded mortgage of personal prop- 
 erty executed before such property is brought 
 or used upon the leased premises, even when 
 the mortgagee took his mortgage with no- 
 tice that the property was to be soused: Jar- 
 chow V. Pickens, 51-381 ; Rand v. Barrett, 
 66-731. 
 
 104. Where, at the time of the acquisition 
 by the tenant of title to chattel property used 
 by him upon the leased premises, the land- 
 lord had notice of a mortgage thereon, held, 
 that his lien for rents was inferior to the lien 
 of the mortgage: Perry v. Waggoner, 68- 
 403. 
 
 105. Where a chattel mortgage was exe- 
 cuted by the tenant during the term of the 
 lease, and afterward, before the expiration of 
 the term, a new lease was executed covering 
 the remainder of the term and an additional 
 period, held, that for rent accruing during 
 the unexpired term of the old lease, the 
 landlord's lien remained paramount to the 
 chattel mortgage : Rollins v. Proctor, 56-336. 
 
 106. A landlord cannot claim a lien prior 
 to that of a mortgage, where he did not at 
 the time of the execution of the mortgage 
 have a subsisting conti-act by virtue of which 
 the rent claimed was to accrue : Thorpe v. 
 Fowler, 57-541, 
 
 107. The fact that the landlord consents to 
 the substitution as lessee of a party who has 
 been guarantor of a note of the first lessee, 
 secured by chattel mortgage on the property 
 
 prior to the landlord's lien, such mortgage 
 appearing to be canceled, but being in fact 
 the property of the guarantor who has paid it, 
 will not entitle him to priority over such 
 mortgage: Rand v. Barrett, 66-731. 
 
 lOS. A landlord cannot, by coUusion with 
 the tenant and antedating the lease, render 
 his lien prior to that of a deed of trust previ- 
 ously executed upon the tenant's property : 
 Orey v. Hudson, 5-554. 
 
 109. Following property into hands of 
 purcliaser: A lien exists upon crops raised 
 by the tenant, and such crops may be fol- 
 lowed by the landlord into the bands of the 
 purchaser : Holden v. Cox, 60-447. 
 
 110. The lien of the landlord can be en- 
 forced against a purchaser from the tenant, 
 of pi-operty which in the ordinary course of 
 business of the tenant is kept for use and not 
 for sale, such'as the team of horses used in 
 cultivating a farm : Richardson v. Petersen, 
 58-734. 
 
 111. Where it appeared that the property 
 of the tenant was purchased from him at a 
 time when he was not in arrears for rent, 
 and when he was not, in fact, upon the 
 premises, although he had been there befw'e, 
 and there was no evidence of fraudulent 
 purpose or knowledge on the part of the pur- 
 chaser, who paid a consideration, held, that 
 he took the property free from the landlord's 
 lien: Nesbitt v. Bartlett, 14-485. 
 
 112. In case of a stock of goods kept for 
 sale, the hen is upon the stock en masse and 
 not in detail, and does not attach to such 
 goods as are sold in the ordinary course of 
 business: Orant v. Whitwell, 9-153; Gilbert 
 V. Cfreenbaum, 56-311. 
 
 113. When the lien attaches: The lien of 
 the landlord is a security existing beforehand 
 for the payment of the rent as it comes due. 
 It attaches at the commencement of the lease 
 or when the property is brought on the de- 
 mised premises, and not simply on the com- 
 mencement of an action or on maturity of 
 the rent: Grant v. Whitwell, 9-152; Carpen- 
 ter v. Gillespie, 10-593; Doanev. Oarretson, 
 34^351 ; Gilbert v. Greenbaum, 56-311. 
 
 114. For entire term: Under the statute 
 the landlord acquires a lien for the rent of 
 the entire term from the commencement of 
 the lease upon all the property of the tenant 
 then upon the premises, and upon all other 
 
LANDLORD AND TENANT, IIL 
 
 lOiS 
 
 Landlord's lien. 
 
 property of his afterwards brought thereon, 
 commencing as soon as it is brought : Martin 
 V. Steams, 53-345. 
 
 115. The lien of a landlord attaches to the 
 property of a tenant used upon the premises 
 for the rent of the entire term : Gilbert v. 
 Oreenbaum, 56-211. 
 
 116. However, the landlord can only en- 
 force his lien for rent due : Merritt v. Fisher, 
 19-354. 
 
 117. Assigrnment of lien: The assignment 
 of a lease cai-ries with it the lien of the land- 
 lord, and all the remedies for its enforcement : 
 Saywood v. O'Brien, 52-537 ; Lufkin v. Pres- 
 ton, 52-235. 
 
 118. CoBtinnance of lien: While the claim 
 for rent is held by the landlord and within 
 the term of one year after it falls due, the 
 hen is in force for his benefit: Farwell v. 
 drier, 38-83. 
 
 1 19. Waiver of lien : The taking of per- 
 sonal security merely raises the presumption 
 of a waiver of the landlord's lien, which may 
 be rebutted by evidence that the landlord 
 still relied upon the lien as security and did 
 not intend to waive it: Rollins v. Proctor, 
 56-326. 
 
 120. A landlord's lien is not waived or for- 
 feited by taking security which is such that 
 it cannot be enforced against third parties, it 
 appearing that such lien was not relied upon : 
 Pitkin V. Fletcher, 47-53. 
 
 121. Negotiation of a note which is given 
 for rent does not prevent the landlord 
 (payee), who is afterward compelled to take 
 up the note as indorser, from enforcing his 
 lien for the rent for which the note was 
 given: Farwell v. Grier, 38-83. AndseeGer- 
 man Bank v. Schloth, 59-316, 323. 
 
 122. Remedy for enforcement: The landt- 
 lord may have an injunction to restrain the 
 tenant from any wrongful or fraudulent 
 acts tending to destroy his security, as by 
 removing or disposing of property on the 
 demised premises: Garner v. Cutting, 33- 
 547. 
 
 123. But the fact that the landlord has a 
 lien upon a stock of goods does not necessa- 
 rily give him the right to have the goods 
 held until the end of the term of the lease, 
 or sold only in the course of retail trade. A 
 court of equity has jurisdiction to make such 
 order with reference to the disposal of the 
 
 goods as will protect the plaintiffs right and 
 at the same time do no injustice to other 
 parties interested ; and where such goods 
 were the property of a partnership in the 
 hands of a surviving partner who was pro- 
 ceeding to wind up the business, he himself 
 being amply responsible, held, that an in- 
 junction to restrain the sale of the stock 
 otherwise than in the usual course of trade 
 should not be allowed: Milner v. Cooper, 
 6.5-190. 
 
 124. A landlord cannot have an injunc- 
 tion against the tenant to prevent disposal of 
 property to secure rent already due, he hav- 
 ing already a right;under such circumstances 
 to an attachment : Potzler v. Rotzler, 46-189. 
 
 125. Attachment: The remedy by attach- 
 ment given by Code, § 2018, is strictly statu- 
 tory and takes the place of the common law 
 right of distress. It only ^applies to real prop- 
 erty, and cannot be used to enforce a claim 
 for damages for failure to till, for breach of 
 covenants, etc. : Merritt v. Fisher, 19-354. 
 
 126. A landlord's lien may be enforced, by 
 attachment, against all property subject 
 thereto, whether belonging to the tenant or 
 others : Houghton v. Bauer, 70 . 
 
 127. If the landlord proceeds under the 
 general attachment law for rent not due, he 
 wiU be confined to the remedy there given, 
 and cannot claim the benefit of his land- 
 lord's hen : Clark v. Haynes, 57-96. 
 
 128. The landlord may set up a claim to 
 property under his lien in a replevin suit 
 therefor, brought by a third party against 
 the tenant : Edicards v. Cottrell, 43-194. 
 
 129. Where the claim for a landlord's lien 
 was set up in the answer to a replevin suit 
 within six months after the termination of 
 the lease, held, that this constituted an asser- 
 tion of such lien within the proper time: 
 Ibid. 
 
 130. A landlord's attachment against a 
 tenant will not give the court jurisdiction 
 against the property of an assignee of such 
 tenant not made party to the suit : Wells v. 
 Sequin, 14-143. 
 
 131. The landlord may maintain an action 
 at law for the wrongful conversion of prop- 
 erty on which he has a lien for the security 
 of his rent : Scallan v. Wait, 64r-705. 
 
 132. Where it appears that nothing was 
 due at the time of suing out the landlord's 
 
1041 
 
 LICENSE — LIMITATION OF ACTIONS. 
 
 Nature of the right. — Revocation. — Possession. 
 
 attachment, the party whose property is 
 seized is entitled to recover the damages sus- 
 tained: Harger v. Spofford, 46-11. 
 
 LIBEL. 
 
 See Slander and Libel. 
 
 LICENSE. 
 
 License to mine, see, also, Mining. 
 As to licenses constituting Easements, see 
 that title. 
 
 1. Natare of the rig'ht: A mere license 
 or privilege to use property for a particular 
 purpose, with the option of surrendering it at 
 any time, does not constitute an interest in 
 real property, but is personalty: Melhop v. 
 Meinhart, 70 . 
 
 2. Kevocation : A parol Ucense to work a 
 mineral vein cannot be arbitrarily revoked 
 by the licensor without cause or notice, when 
 the licensee is in possession and has expended 
 money or labor under the license ; but where 
 the license has not been acted upon, it may 
 be countermanded : Upton v. Brazier, 17-153. 
 
 3. A parol license to mine is valid and can 
 only be terminated by compensation to the 
 licensee or the notice necessary to terminate 
 the tenancy at will. It is good as against a 
 subsequent lessee or licensee with notice: 
 Harkness v. Burton, 39-101. 
 
 4. Where a party has, under a parol license, 
 made improvements and performed services, 
 he is entitled to six months' notice to quit, 
 before his license can be revoked: Bush v. 
 Sullivan, 3 G. Gr., 344. 
 
 5. When a licensee has acted under the 
 authority conferred and incurred expenses in 
 the execution of it, equity regards it as an 
 executed contract and will not permit it to 
 be revoked : Cook v. Chicago, B. & Q. B. Co., 
 40-451. 
 
 6. While it is held in this as in some other 
 states that a license under some circum- 
 stances is not revocable, yet such cases are 
 where the licensee has gone upon the ground 
 and expended money thereon in doing the 
 things which he was licensed to do. Where 
 the licensee had done nothing except to stake 
 out land for a building, etc., held, that the 
 license was revocable, even though the 
 licensee had purchased also a lot adjoining 
 the land on which the license was gi-anted, 
 
 with the presumed intention of using it in 
 connection therewith: Kippv. Coetien, 55-63. 
 
 7. Possession : A parol license to mine, un- 
 der which the licensee enters into and holds 
 possession, and which is established also by 
 the licensor's testimony, is valid under the 
 statute of frauds, but it is otherwise if pos- 
 session is not taken under and by virtue of 
 the license : Anderson v. Simpson, 31-399. 
 
 8. Possession of a licensee as well as that of 
 a lessee is that of the landlord : Keokuk & D. 
 M. R. Co. V. Lindley, 48-11. 
 
 9. Not exclusive: A simple parol grant 
 to one person of the privilege of mining upon 
 the land of another will not, unless clearly 
 expressed or necessarily implied, be held to 
 be exclusive : Upton v. Brazier, 17-153. 
 
 10. Cutting timber: Where defendant 
 gave to plaintiff the right to cut trees on the 
 land of the former and make staves there- 
 from, in consideration of an agreed price per 
 thousand, held, that the title passed from the 
 time of cutting the timber, although the pur- 
 chase money was not paid, the effect of the 
 contract being to give the purchaser a credit 
 as to the purchase money until the number 
 could be estimated: Mohn v. Stoner, 14-115. 
 
 11. In contracts for the sale of standing 
 timber to be taken off within a given time, 
 the purchaser merely acquires a right of 
 entry during the time specified. In such a 
 contract time enters into the consideration, 
 and when it expires the rights of the pur- 
 chaser are concluded and he cannot after- 
 wards enter : Sanders v. Clark, 33-275. 
 
 12. While a court of equity might, upon a 
 showing of good cause for failure to remove 
 the timber, reasonably extend the time stip- 
 ulated, the fact that the purchaser, after ex- 
 ecuting the contract, entered into the mil- 
 itary service, will not constitute such cause : 
 Ibid. 
 
 LIMITATION OF ACTIONS. 
 
 I. General principles; construction 
 
 and effect of the STATUTE; HOW 
 PLEADED. 
 
 II. When the statutory period com- 
 mences TO RUN. 
 
 a. In general. 
 
 b. In cases of fraud or mistake. 
 
 c. In cases of mutual account. 
 
 In actions to recover Real Pkop- 
 ERTY, see that title. 
 
LIMITATION OF ACTIONS, I. 
 
 1045 
 
 General principles. 
 
 III. When the statutory bar becomes 
 
 COMPLETE. 
 
 a. In general. 
 
 b. In case of minors, insane persons, 
 
 etc. 
 
 c. In case of non-residents, persons in 
 
 military service, etc. 
 XV. Commencement op action in proper 
 
 TIME. 
 
 V. Removal of bar by admission or new 
 
 promise. 
 VI. Period of limitation in particular 
 
 CASES. 
 
 As to limitation of time for appointment of 
 administrator, see Estates of Decedents, 
 
 As to limitation of time for filing claim 
 against an estate, see Estates of Decedents, 
 §§ 169-198. 
 
 As to limitation of time for bringing action 
 to attack a guardian's or administrator's sale, 
 or a tax sale, see Guardianship, gg 63-68; 
 Estates of Decedents, §§ 260, 20 1 ; Taxa- 
 tion, xn. 
 
 I. General principles ; construction 
 
 AND effect of THE STATUTE; HOW 
 PLEADED. 
 
 1. In equitable actions: The statute of 
 limitations applies equally to actions at law 
 and suits in equity: Phares v. Walters, 
 6-106; Eelf v. Eberly, 23-467; Williams v. 
 Allison, 33-278 ; District Tp v. District T'p, 
 62-30. 
 
 2. Under earlier statutory provisions, held, 
 that in case of concurrent jurisdiction, courts 
 of equity equally with courts of law are 
 bound by the statute and may, therefore, in 
 such cases, be said to act in obedience thereto, 
 while in cases where the jurisdiction is not 
 concurrent, courts of equity apply the statute 
 in many, and indeed in most, instances, by 
 way of analogy to the law: Wright v. Le- 
 claire, 3-221. 
 
 .3. While equity will usually, in analogy to 
 the law, follow the statute of limitations, it 
 will not in any case cut off rights of parties 
 to relief within a shorter time than that pre- 
 scribed by the statute, unless the other party 
 is shown to have been prejudiced by delay in 
 some manner which would render it inequi- j 
 
 table to grant the relief sought : Light v. West, 
 42-138. 
 
 4. The rule of constrnctiou: The statute 
 of limitations should not be viewed in an un- 
 favorable ligbt or as a defense unjust and 
 discreditable, but like aU other statutes 
 should be so construed as to effect the inten- 
 tion of the legislature, that intention being 
 to afford security against stale demands after 
 the true state of the transaction may be 
 either forgotten or rendered incapable of ex- 
 plnnation : Penley v. Waterhouse, 3-418. 
 
 5. Against municipal corporations: The 
 state is not intended to be included among 
 bodies corporate and politic referred to in the 
 statute of limitations (Code, § 8338), and the 
 statute does not run against the state: Des 
 Moines County v. Barker, 34-84. 
 
 6. Though the action be brought in the 
 name of a county, yet if it be for the bene- 
 fit of the state, as for the recovery of a part 
 of the school fund, it will not be barred by 
 the statute : Ibid. 
 
 7. The statute will run against a city: 
 Pella V. Scholte, 24^283. 
 
 8. The statute of limitations runs against 
 an action by a county for delinquent taxes 
 for which the county is liable to the state : 
 Brown v. Painter, 44-368. 
 
 9. Where actions are brought by munic- 
 ipal corporations to recover property or to 
 enforce contracts made with them in their 
 corporate or governmental capacity, the stat- 
 ute may be applied in the same manner as 
 where like actions are brought by natural 
 persons: Burlington v. Burlington & M. S. 
 R. Co., 41-134. 
 
 10. The general statute of limitations ap- 
 plies to actions in the name of the state for 
 the use of an individual or corporation 
 against whom the statute would run : State 
 V. Henderson, 40-242. 
 
 11. Pertains to the remedy: The statute 
 of limitations in the state in which the ac- 
 tion is brought prevails and not that in which 
 the contract was made : Briuie v. Luck, 4 G. 
 Gr., 143. 
 
 12. Statutes of limitation pertain to the 
 remedy and not to the essence of the con- 
 tract, and an act extending the time for 
 bringing suit on a cause of action is valid : 
 Edwards v. McCaddon, 20-520. 
 
 13. And sucb statutes are not unconstitu- 
 
104:6 
 
 LIMITATION OF ACTIONS, I. 
 
 General principles. 
 
 tional as impairing the obligation of existing 
 contracts : Parsons v. Carey, 38-431 ; Harren- 
 court V. Merritt, 39-71; Campbell v. Long, 
 20-383. 
 And see Constitutional Law, §§ 140-143. 
 
 14. The statute of hmitatipns pertains to 
 the remedy and not to the right of action or 
 validity of the cause of action, and even 
 though it prevent action being brought on a 
 cause of action such as a judgment which is 
 still valid and enforceable in another state, 
 it does not conflict with the provisions of 
 the constitution of the United States, secur- 
 ing in each state full faith and credit to the 
 judicial provisions of other states: Meek v. 
 Meek, 45-394. 
 
 15. Changes in statutes of limitation take 
 effect on antecedent contracts: Sleeth v. 
 Murphy, Mor., 331. 
 
 16. The Code being a re-enactment of the 
 provisions of the Revision as to limitations 
 of actions, the time which had run at the 
 date when the Code was enacted is to be 
 added to the time running under the Code in 
 making the period of limitation. To con- 
 strue the Code as extending the period of 
 limitation, and allowing the full period in 
 each case after its taking effect as to causes 
 of action already existing, would affect rights 
 already accrued, contrary to the provisions 
 of Code, g 50, with relation to its taking ef- 
 fect : McDonald v. Jackson, 55-37. 
 
 17. The statute of limitations applies to 
 the remedy only, and if there is a cause of 
 action existing, not barred when the statute 
 takes effect, the statute applies to it, even 
 though it is not made retrospective in its 
 operations: Higgins v. Mendenhall, 43-6,75. 
 
 18. Before the bar of the statute is com- 
 plete, the legislature may by statute enlarge 
 the period : Harwood v. Quinby, 44-385.. 
 
 19. Effect of repeal : Where a statute of 
 limitations is unconditionally repealed with- 
 out any saving clause, the rights of parties 
 are to be adjudicated in the same manner as 
 if the act had never existed unless the period 
 of limitation under the previous statute has 
 already expired, in which case the repeal of 
 the previous act wiU not revive the right of 
 action: Norris v. Slaughter, 1 G. Gr., 338. 
 
 20. While the legislature has the power to 
 enlarge the time for the statute to run, or to 
 repeal a statute which has run for a part of 
 
 the time prescribed, and give to past cred- 
 itors the same length of time to prosecute 
 their claims as future creditors, it cannot re- 
 vive any right of action already barred: 
 lUd. 
 
 21. The repeal or amendment of the stat- 
 ute of limitations cannot act retrospectively 
 so as to disturb rights acquired thereunder 
 and deprive parties of protection to which 
 they were fully entitled under a prior enact- 
 ment. Actions which have become barred 
 are not revived upon the repeal of the stat- 
 ute of limitations : Thompson v. Bead, 41-48. 
 
 22. Where a previous statute was repealed 
 and a new one enacted without any saving 
 clause, held, that in computing the statutory 
 period on an action arising before the taking 
 effect of the new law, the period of time 
 which had elapsed prior to the taking effect 
 of the new law could not be included: 
 Ibid.; Forsyth v. Ripley, 3 G. Gr., 181; Wile 
 V. Matherson, 3 G. Gr., 184. 
 
 23. Where the statute reduced the period 
 of limitation as to existing causes of action, 
 held, that the new period for such actions 
 was not to exceed the whole period allowed 
 by the new statute, nor the period which 
 would have been allowed under the old. 
 (OveiTuling Bennett v. Bevard, 6-83; 
 Phares v. Walters, 6-106) : Wright v. Keith- 
 ler, 7-92; Montgomery v. Chadwick, 7-114; 
 Campbell v. Long, 30-383. 
 
 24. And further as to the effect of the pro- 
 visions of the Code of '51 as to causes of ac- 
 tion not already barred, see Kilboume v. 
 Lockman, 8-380. 
 
 25. Effect: The fact that the period of Um- 
 itation has expired as against a note wiU not 
 support an averment of payment. A barred 
 debt is not to be regarded as extinguished: 
 Austin V. Wilson, 46-363. 
 
 26. Satisfaction of a judgment wiU be pre- 
 sumed after a lapse of twenty years, subject 
 to explanation in regard to the non-residence 
 of defendant. Within the twenty years, 
 however, the jury may be authorized to pre- 
 sume payment from circumstances but not 
 from the lapse of time alone : Hendricks v. 
 Wallis, 7-224. 
 
 27. Statutes of limitation do not affect the 
 validity of the cause of action, and the fact 
 that a judgment is still valid and may be 
 enforced in the state where rendered does 
 
LIMITATION OF ACTIONS, I. 
 
 1047 
 
 General principles. 
 
 not prevent its being barred by the provis- 
 ions of our law, notwithstanding the re- 
 quirements of the constitution of the United 
 States, that full faith and credit shall be 
 given to the judicial proceedings, etc., of an- 
 other state : Meek v. Meek, 45-294. 
 
 28. In case of surety: A claim which is, 
 by the statute of limitations, barred as 
 against the principal debtor, is by reason 
 thereof barred also as against the surety, 
 whether the statutory period as to the surety 
 has expired or not : Auchampaugh v. Schmidt, 
 70 . 
 
 29. The same period of limitation applies 
 in an action against sureties upon an official 
 bond that would apply in an action against 
 the principal, and it is immaterial that judg- 
 ment against the principal has already been 
 obtained: Wadsworth v. Gerhard, 55-367. 
 
 30. The fact that the principal debtor is 
 discharged by the statute of limitations does 
 not prevent a surety on the original indebted- 
 ness being held on a new promise or admis- 
 sion : Collins v. Bane, 34-385. 
 
 31. Counter-claim: By statutory provision 
 a counter-claim may be pleaded as a defense 
 to any cause of action, notwithstanding such 
 coimter-claim is barred, if it was the property 
 of the party pleading it at the time it became 
 barred, and was not barred at the time the 
 claim sued on originated. (Code, § 2540): 
 Allen V. Maddox, 40-124. 
 
 32. Any counter-claim which is authorized 
 by statute (Code, § 2659) may be pleaded as 
 a counter-claim, notwithstanding it is barred, 
 and the statutory provision in that respect is 
 not limited to counter-claims which were 
 strictly so named under previous statutes: 
 Folsom V. Winch, 63-477. 
 
 33. No recovery can be allowed on a 
 counter-claim, which is thus interposed al- 
 though barred, for any amount over and 
 above the amount of plaintiff's claim, such 
 being the express statutory provision : Ibid. 
 
 Si. Special statutes of limitation with ref- 
 erence to the time of filing claims against an 
 estate do not apply to an ofEset interposed by 
 a person who is sued by an administrator to 
 recover a debt due from him to the estate : 
 Ware v. Howley, 68-633. 
 
 35. A claim against one who is an heir 
 may be properly set up against him in set- 
 tling his distributive share of the estate, 
 
 although such claim be barred by the statute 
 of limitations. But the pendency of pro- 
 ceedings in chancery for the settlement of 
 the estate, which are in no sense an action 
 on the claim, will not prevent the statute 
 from running, and, after sufficient time, 
 would defeat an action at law on the claim : 
 Garrett v. Pierson, 29-304. 
 
 36. Must be pleaded : The defense of the 
 statute of limitations is an affirmative one, 
 and the pa^ty pleading it must show the 
 facts constituting the bar : Harlin v. Steven- 
 son, 30-371 ; Tredivay v. McDonald, 51-663. 
 
 37. The statute cannot be relied upon at 
 the trial unless pleaded : Brush v. Peterson, 
 54-243. 
 
 38. It must be specially pleaded, and will 
 be held waived unless taken advantage of by 
 demurrer or answer: Robinson v. Allen, 
 37-27. 
 
 39. The fact that a claim was barred by 
 the statute of limitations before suit was 
 brought thereon does not affect title acquired 
 through such action. If parties have failed 
 to interpose the defense of the statute at the 
 proper time, they are deemed to have waived 
 it: Welch V. McGrath, 5Q-5l^. 
 
 40. Raised by demurrer: Where the peti- 
 tion shows affirmatively that its cause of 
 action is barred by the statute of limitations, 
 it may be assailed by demurrer. (Code, § 2648, 
 IT 0) : Shorick v. Bruce, 21-305. 
 
 41. A petition in an action for slander, 
 alleging the publication of the slander on or 
 about a particulai- date, is demurrable if the 
 daie thus mentioned is such that the statute 
 of limitation appears to have run against the 
 action : Jean v. Hennessy, 69-373. 
 
 42. A demurrer in such case vsill not be 
 defeated by the fact that the petition alleges 
 the repetition of such slanderous words at 
 divers times after the original publication up 
 to the bringmg of action. Such allegations 
 of the repetition of the slander constitute 
 only a pleading of evidence which is admis- 
 sible for the purpose of showing malice : Ibid. 
 
 43. A petition cannot be assailed by de- 
 murrer on the ground that the action was 
 barred by the statute until it shows on its 
 face that the cause of action accrued against 
 defendant at a time prior to the period lim- 
 ited by the statute : District Tp v. Independ- 
 ent Dist., 69-88. 
 
1048 
 
 LIMITATION OF ACTIONS, I, 11, a. 
 
 General principles. — When statutory period commences to run. — In general. 
 
 44. In the absence of statutory provision 
 the statute of limitations must be pleaded, 
 and cannot be raised by demurrer : Sleeth v. 
 Murphy, Mor., 321. 
 
 45. "Where a special form of action is pro- 
 vided by statute, and it is also provided that 
 it shall be pursued within a limited time, 
 such limitation need not be pleaded, and the 
 objection may be made by motion to dismiss 
 the action if brought after the time limited : 
 Newcomb v. Steamboat Clermont, 3 G. Gr., 
 295. 
 
 46. While at common law the defense of 
 the statute of limitations could not be made 
 by demurrer, but must be set up by way of 
 answer or plea, the rule was otherwise in 
 chanceiy : Phares v. Walters, 6- 106. 
 
 47. And where it appeared on the face of 
 a bill in equity that the action was barred by 
 limitation, such objection might be raised by 
 demurrer: Piersonv. David, 1-23. 
 
 And see Pleadings, §§ 698-703. 
 
 48. Matter remoTing the bar: Plaintiff 
 may in his petition allege matters displacing 
 the apparent bar of the statute : Petchell v. 
 Hopkins, 19-531. 
 
 49. Thus, under a former statutory pro- 
 vision by which plaintiff might call defend- 
 ant as a witness to prove a cause of action 
 barred by the statute, held, that plaintiff 
 must in such a case, if his cause of action 
 was apparently barred, state in his peti- 
 tion that he intended to rely upon defend- 
 ant's testiffiony or his petition would be 
 subject to demurrer : Newjield v. Blawn, 16- 
 297. 
 
 60. Who may take advantage of: Where 
 land is sold at foreclosure sale for an indebt- 
 edness represented by a second note secured 
 by mortgage, the purchaser may plead the 
 statute of limitations in an action in which 
 it is sought to subject the land to the pay- 
 ment of the first note secured by the same 
 mortgage. The original maker of the notes 
 and mortgage being a party to the action, 
 but no judgment being asked against him, 
 cannot make admissions in the pleadings, 
 such as will defeat the defense of the statute 
 of limitations as to such purchaser : Day v. 
 Baldwin, 34-380. 
 
 51. Where a devise is made upon condi- 
 tion that the devisee pay all the debts en- 
 forceable against testator's estate, the period 
 
 of limitation as against such devisee who ac- 
 cepts under the will is not extended : Huston 
 V. Huston, 37-668. 
 
 II. When the statutory peeiod com- 
 mences TO KUN. 
 
 a. In general. 
 
 52. When cause of action accrues: The 
 
 statute of limitations begins to run from the 
 time the cause of action accrues. After the 
 statute once begins to run, no subsequent 
 disability will suspend it unless the statute 
 itself provides therefor. Before a cause of 
 action will accrue or the statute begin to 
 run, there must exist a cause of action and 
 a person authorized to prosecute it. So the 
 statute will not run against a cause of action 
 accruing to the estate of a decedent until 
 there is a personal representative in whose 
 name it may be prosecuted: Sherman v. 
 Western Stage Co., 24-515, 553. 
 
 And see further as to this class of cases, 
 infra, §§ 322, 228. 
 
 53. It is not the date of a promise, but the 
 time when the cause of action accrues there- 
 on, which determines wiien the statutory 
 period commences to run: Walker v. LatK- 
 rop, 6-516. 
 
 54. The statute of limitations commences 
 to run when the cause of action has fully ac- 
 crued : Baker v. Johnson County, 43-645. 
 
 65. Where it was agreed between the heirs 
 of an estate, that, upon the setting aside of 
 the will, a certain amount should be allowed 
 to two such heirs upon final distribution of 
 the property of the estate, held, that the stat- 
 ute of limitations against the claim of the 
 heirs for the amount thus agreed upon did 
 not comeience to run until the final distribu- 
 tion of the property: Rogers v. CKllett, 56- 
 266. 
 
 56. Where a person indebted to an estate 
 made certain payments, and afterwards 
 failed to set such payments up in defense to 
 the action in behalf of the estate by reason of 
 an arrangement for a compromise, and judg- 
 ment was rendered against him for a larger 
 amount than his indebtedness, and there- 
 after the terms of the compromise were vio- 
 lated by the opposite party, held, that the 
 debtor's cause of action to recover payments 
 not set up by him in the action accrued only 
 
LIMITATION OF ACTIONS, II, a. 
 
 1049 
 
 When the statutory period commences to run. — In general. 
 
 from the time of the violation of the agree- 
 ment for tlie compromise : Savery v. Syplier, 
 39-675. 
 
 57. On written contract to conyey: In 
 an action to recover the part of the purchase 
 money paid, in case of breach of written 
 contract to convey, the statute commences 
 to run from the time of demand and refusal 
 to convey, and not from date of payment 
 of the money, such action not being for 
 money had and received : Deming v. Haney, 
 33-77. 
 
 58. No time for the performance of a con- 
 tract to convey being specified, it is implied 
 that the performance shall be made within a 
 reasonable time, and the statute of limita- 
 tions will commence to run from that time : 
 Harbour v. Rhinehart, 39-672. 
 
 59. Under continnons contract: When 
 labor is performed during a continuous 
 period under one contract, the statute of 
 limitations begins to run from the completion 
 of the work: Shorick v. Bruce, 81-305. 
 
 60. It must be presumed that it is the uni- 
 versal custom to render compensation for 
 personal services at intervals, whatever may 
 be the time of employment. But unless the 
 custom is known to e2;ist in case of expenses 
 and services in support of a child or other 
 person running through a long series of 
 years, if the contract fixes no time for its 
 termination, the law wiE presume that, un- 
 less terminated, the contract continues to 
 run so long as the services are rendered, or 
 in case of a child until majority, and the 
 amount of charges for such services and ex- 
 penses will be deemed entire and not from 
 year to year : Carroll v. McCoy, 40-38. 
 
 61. In case of partnership: The statute 
 of limitations does not begin to run against 
 an action for settlement of a partnership un- 
 til the partnership is dissolved, or until suffi- 
 cient time has elapsed after demand for 
 accounting and settlement : Richards v. Orin- 
 nell, 63-44, 
 
 62. In case of surety: The payment of a 
 judgment by a surety gives rise immediately 
 to a right of action against the principal 
 debtor for the money so paid, and the fact 
 that such payment is made upon the mere in- 
 definite promise by the principal to repay 
 at some future time wiU not suspend the 
 surety's right of action and the running of 
 
 the statute of limitations thereon: Wilson v. 
 Crawford, 47-469. 
 
 63. Where the grantee of real property, as 
 a part of the purchase money, agreed to pay 
 off a judgment against the grantor, held, 
 that the relation of principal and surety was 
 created, and the grantor having paid the judg- 
 ment, his right to recover from the grantee 
 accrued from the date of payment, no special 
 time for payment being fixed: Foster v. 
 Marsh, 25-300. 
 
 Action on attachment bond, when deemed 
 to accrue, see Attachment, §§ 250, 251. 
 
 64. Contract to pay after death: Where 
 there is a contract for services to be paid for 
 on the death of the party to whom they are 
 rendered, the statute of limitations as against 
 such claim commenced to run only from the 
 death of the party: Riddle v. Backus, 38-81. 
 
 65. Indebtedness payable on demand: 
 Upon an unwritten contract for a loan of 
 money payable on demand, the statute com- 
 mences to run from the time of the loan: 
 Ball V. Letts, 21-596. 
 
 66. Claim against connty: The statute 
 commences to run as against an unliquidated 
 claim against a county from the time the ac- 
 count accrues and not from the time the de- 
 mand required by Code, § 3610, is made: 
 Baker V. Johnson Co., 33-151. 
 
 67. Where preliminary steps are re- 
 quired: A party holding a claim or right of 
 action cannot be allowed to prolong the 
 operation of the statute by refusing to take 
 the steps which the law requires in order lo 
 authorize the maintenance of the action : 
 Prescott V. Gonser, 34-175 ; Bintrager r. 
 Hennessy, 46-600; First Nat. Bank v. Greene, 
 64-445; Squier v. Parks, 56-407; Hintrager 
 V. Traut, 69-746. 
 
 68. The right of action will be deemed to 
 have accrued at the time when by taking the 
 proper steps the action might have been 
 brought: Hintrager v. Traut, 69-746. 
 
 69. Even where a demand may be nec- 
 essary before bringing action, the party 
 having the right to demand performance at 
 any time cannot delay such demand and 
 thereby prevent the statute of limitations 
 from commencing to run ; and where the de- 
 mand is not necessary to create a debt, but 
 is only a preliminary step to the enforcement 
 of a remedy for the breach of such debt, 
 
lOaO 
 
 LIMITATION OF ACTIONS, II, a. 
 
 When the statutory period commences to run, — In general. 
 
 which breach is complete without the de- 
 mand, the statute will commence to run 
 from the time that demand might have been 
 made : Preseott v. Gonser, 34^175. 
 
 70. A person cannot postpone the operation 
 of the statute of limitation by failing to make 
 a demand where the demand is all that is 
 necessary to fix the liability of the other 
 party : Lower v. Miller, 66-408. 
 
 71. When the i-ight of action depends on a 
 demand, such demand must be made within 
 the statutory period of limitation after the 
 right to make it accrues, unless there are 
 special circumstances excusing the party 
 from so doing ; otherwise the demand will be 
 considered as not made within a reasonable 
 time : Ball v. Keokuk <t N. W. R. Co., 62-751. 
 
 72. Therefore, held, that where it appeared 
 that a railway company had 'a, contract with 
 a land-owner by which the former was en- 
 titled to a deed for a right of way upon de- 
 mand as soon as the road was located, and 
 no demand was made until the expiration of 
 ten years after the right to make it had oc- 
 crued, the right of the company to a deed 
 had become barred: Ibid. 
 
 73. A revivor of a judgment by scire facias 
 is not a new judgment against which the stat- 
 ute of limitations commences to run from its 
 rendition, but the statute continues to run 
 against the judgment revived from the time 
 of its original rendition: Meek v. Meek, 45- 
 294. 
 
 74. Claim against township or school 
 district: Where a township clerk paid an 
 order which should have been allowed by the 
 township trustees at the first settlement 
 thereafter, held, that the statute of limita- 
 tions, as against an action of mandamus to 
 enforce the allowance of the claim, com- 
 menced to run from that time, and not from 
 the time of subsequent demand : Dewey v. 
 Lins, 57-235. 
 
 75. The statute of limitations commences 
 to run against warrants drawn by a district 
 township on its own treasurer, at least from 
 the time of their presentation for payment, 
 although such payment is refused only for 
 the reason that there are not funds on hand 
 at the time : Carpenter v. District T'p, 58- 
 335. 
 
 76. Option as to payment: Where the 
 debtor has the option to pay the debt at any 
 
 time before a certain date, the cause of ac- 
 tion does not accrue untU the expiration of 
 such time : Creighton v. Bosseau, 1-133. 
 
 77. Against sherilT for right of tray dam- 
 ages: A right of action against a sheriff for 
 money paid to him in pursuance of an assess- 
 ment for damages for right of way accrues 
 at the expiration of the thirty days allowed 
 for appeal from such assessment: Lcmer v. 
 Miller, 66-408. 
 
 78. Where a right of action against a sher- 
 iff has accrued during his first term, and he 
 is re-elected for a second term, such re-elec- 
 tion does not stop the ruiming of the statute 
 as to such money. It cannot be claimed that 
 he received at the beginning of the second 
 term from himself an amount for which he 
 was liable during his first term : Ihid. 
 
 79. Void county bonds: Where, by reason 
 of an adjudication that bonds issued in pay- 
 ment of stock in a railroad company were 
 void, a county became entitled to the return 
 of such bonds, or damages on adcount of 
 their having passed into the hands of inno- 
 cent purchasers, hdd, that such right accrued 
 when the bonds were declared void : Wapello 
 County V. Burlington & M. R. R. Co., 44- 
 585. 
 
 80. On accommodation paper: Aright of 
 action in favor of the accommodation maker 
 of paper against the party accommodated 
 only arises upon failure of the latter to pay 
 the paper at maturity or to reimburse the 
 maker in case he is compelled to pay it : Jef- 
 ferson County V. Burlington & M. R. R. Co., 
 66-385. 
 
 81. But where a county issued negotiable 
 bonds in aid of a raUroad company which 
 had passed into the hands of innocent hold- 
 ers, who could recover thereon although the 
 bonds were in fact issued without authority, 
 it being believed, however, at the time they 
 were issued, by all parties, that they were 
 valid, held, that the right of action of the 
 county against the railway company to re- 
 cover the amount of the liability thus im- 
 properly incurred in behalf of such company 
 accrued at the time the bonds passed into 
 the hands of the railway company, and the 
 right of action was barred in five years there- 
 after: Ibid. 
 
 82. Against officer for taking improper 
 bond: A cause of action against a clerk for 
 
LIMITATION OF ACTIONS, II, a. 
 
 1051 
 
 When the statutory period commences to run. — In general. 
 
 taking a defective Stay bond does not accrue 
 until plaintiff has been damaged, that is, un- 
 til a right of action has accrued on the bond : 
 Steel V. Bryant, 49-116. 
 
 83. Therefore, an action by a clerk against 
 his deputy, for default of the latter in approv- 
 ing such bond, does not accrue until the 
 same time: Moore v. McKinley, 60-367. 
 
 84. AE:aiiist trustee: The statute of lim- 
 itations will run in favor of the trustee of a 
 resulting or constructive ti-ust, from the time 
 he disowns the trust and claims title in his 
 own right to the trust property: Otto v. 
 Schlapkahl, 57-336 ; Gebhard v. Sattler, 40- 
 152. 
 
 85. The conveyance of the trust property 
 by the trustee holding under a resulting trust 
 by a deed in which he asserts that he is the 
 absolute owner, followed by possession of his 
 vendee, is suflScient to constitute a denial of 
 the trust : Peters v. Jones, 35-512. 
 
 86. The statute of limitations will limit and 
 control the right of action in equity in cases 
 of implied or resulting trusts: Harbour v. 
 Ehinehart, 39-672. 
 
 87. A contract to make a deed to a certain 
 piece of land, provided the grantor should 
 get a pre-emption on the same, " in the penal 
 sum of two hundred dollars," held not to 
 constitute a case of direct or express trust 
 which in equity has been considered not to 
 be barred by the statute of limitations. Even 
 if in such case the purchase money has been 
 paid, the trust is still one raised by implica- 
 tion and therefore within the statute : John- 
 son V. Hopkins, 19-49. 
 
 S8. Although the statute of limitations will 
 not run against an express trust, yet a right 
 of action accrues whenever there is a breach 
 of the trust, and the statute begins then to 
 run, at least if the breach is known to the 
 beneficiary : Wilson v. Green, 49-251. 
 
 89. In case of continuing injury: Where 
 the injury is such that it follows as the result 
 of natural causes in consequence of one 
 wrongful act, the action for all the damages 
 resulting therefrom accrues at the time of 
 the doing of the act, and the statute of lim- 
 itations then commences to run: Powers v. 
 Council Bluffs, 45-653. 
 
 90. Where plaintiff alleged damages re- 
 sulting from the diversion of a stream of 
 water in the negligent construction of de- 
 
 fendant's road, and that such damages oc- 
 curred at a time subsequent to the construc- 
 tion of the road, held, that the statute of 
 limitations would commence to run from the 
 time of the damages and not from the time 
 the road was constructed: Van Orsdol v. 
 Burlington, C. E. & N. R. Co., 56-470. 
 
 91. In an action for damages suffered from 
 the maintenance of a nuisance (the erection 
 and use of gas works), it appearing that the 
 nuisance and injury were of a permanent 
 character and began when the works were 
 erected, held, that as plaintiff was entitled 
 to recover all the damages sustained in one 
 action, the action was barred after the lapse 
 of five years from the commencement of the 
 nuisance: Baldwin v. Oskaloosa Oas lAght 
 Co., 57-51. 
 
 92. The cause of action for damages from 
 the improper construction of a ditch does not 
 arise until the ditch first begins to affect the 
 party's premises : Miller v. Keokuk <& D. M. 
 R. Co., 63-680. 
 
 93. As against a cause of action for injury 
 to property from the construction of a ditch 
 which is of such character as to cause per- 
 manent injury unless human agency inter- 
 vene to prevent it, the statute of limitations 
 commences to run from the beginning of the 
 injury. In such case there cannot be succes- 
 sive actions, but the whole injury is to be 
 compensated in the one action: Powers v. 
 Counoil Bluffs, 45-653. 
 
 94. But this does not apply to a case where 
 one party is under obligation to protect 
 another from injury and fails from time to 
 time to do so : Drake v. Chicago, R. I. & P. 
 R. Co., 63-303. 
 
 95. Against action to recover taxes: As 
 against an action by one of two claimants of 
 land who has been defeated in an action to 
 assert title thereto, and thereupon seeks to 
 recover from the successful claimant the 
 amount of taxes paid wJiile claiming title, 
 the statute of limitations commences to run 
 from the time the question of title is finally 
 adjudicated : Goodnow v. Stryker, 63-231 ; 
 Goodnow V. Litchfield, 63-375; Bradley v. 
 Cole, 67-650; Goodnow v. Oakley, 68-25. 
 
 96. Where a tax title was, in an action iu 
 equity brought by the holder of the legal 
 title, declared void for the reason that the 
 tax for which the sale was made had been in 
 
1052 
 
 LIMITATION OF ACTIONS, II, b. 
 
 In cases of fraud or raistake. 
 
 fact paid, and thereupon the holder of the 
 legal title was required to repay to the holder 
 of the tax title all taxes paid by the latter 
 on the land, held, that such obligation to re- 
 pay being a mere equity, incident to the 
 relief granted, was not affected by the stat- 
 ute of limitations, and should not be limited 
 to taxes paid within five years: Harber v. 
 Sexton, 66-211. 
 
 As to recovery of taxes paid by mistake, 
 see infra, §§ 119, 130. 
 
 Adverse possession: As to what consti- 
 tutes sufficient adverse possession to cause 
 the statute of limitations to commence to run 
 against an action for the recovery of real 
 property, see Real Property, 31-109. 
 
 Action against stockholder: As to when 
 an action against a stockholder by a creditor 
 of the corporation to enforce paj-ment of his 
 claim becomes barred, see Corporations, 
 §194 
 
 b. In cases of fraud or mistake. 
 
 97. Ignorance of claim: When no fraud 
 is charged, ignorance of a right will not pre- 
 vent the operation of the statute of limita- 
 tions against an action based thereon : Camp- 
 bell V. Long, 30-383; Brown v. Brown, 44- 
 349. 
 
 98. The fact that the extent of injury or 
 damage is not fully known at the time the 
 cause of action therefor accrues does not 
 postpone the time of commencement of the 
 statutory period : Gustin v. Jefferson County, 
 15-158; Steel v. Bryant, 49-116. 
 
 99. Where a judgment plaintiff failed to 
 credit a payment made on the judgment, 
 and afterward, on execution, recovered the 
 whole amount thereof, held, that the action 
 to recover back the amount of the payment 
 was barred in five years, although the judg- 
 ment defendant was not aware of the failure 
 to credit the payment until the expiration of 
 the five years : Shreves v. Leonard, 56-74. 
 
 100. A cause of action by one county 
 against another for support of a pauper arises 
 when the support is furnished, and ignorance 
 of the fact as to the proper place of settle- 
 ment of the pauper will not delay the opera- 
 
 tion of the statute as against such claim; 
 Washington County v. Mahaska County, 
 47-57. 
 
 101. A party who collects the amount due 
 on a note given as collateral security be- 
 comes liable to pay over the excess beyond 
 the amount of indebtedness at the time of 
 the receipt of the money, and the cause of 
 action commences to run at that time. A 
 failure to pay in such a case cannot be 
 deemed a fraud, so as to prevent the running 
 of the statute until the receipt of the money 
 becomes known to the party entitled thereto : 
 Branson V. Ballon, 70 . 
 
 102. Fraudulent concealment of a cause 
 of action by the party against whom it exists, 
 preventing the opposite party from acquiring 
 knowledge thereof, wiU. prevent the statute 
 from commencing to run until the cause of 
 action was or might have been discovered, 
 and this is true irrespective of the statutory 
 provision as to the cases of fraud and mis- 
 take : District T'p v. French, 40-601 ; Findley 
 V. Stewart, 46-655. 
 
 103. Statutory provision;! cases cogni- 
 zable in chancery: A cause of action on ac- 
 count of fraud such as was heretofore 
 cognizable in chancery commences to run 
 from the time of the discovery of the fraud : 
 Cowin V. Toole, 31-513. 
 
 104. The fraud contemplated in this statu- 
 tory provision is only such as was heretofore 
 solely cognizable in chancery: Oebhard v. 
 Sattler, 40-153; Brotim v. Brown, 44-349; 
 Phoenix Ins. Co. v. Dankwardt, 47-433. 
 
 105. Where the fraud is not of that char- 
 acter, but the plaintiff's remedy is concur- 
 rent, the exception here made does not apply : 
 Belf V. Eberly, 33-467; McOinnis v. Hunt, 
 47-668. 
 
 106. An action to rescind a contract for 
 fraud, and set aside a deed and restore the 
 parties to their rights prior to the fraud, is an 
 action solely cognizable in a court of chan- 
 cery, and the statute begins to run with the 
 discovery of the fraud : Relf v. Eberly, 33- 
 467. 
 
 107. Where plaintiff dismissed an action 
 on a bond for specific performance upon de- 
 fendant's testimony that a subsequent con- 
 
 ' Code, § 2630. In actions for relief on the ground of fraud or mistake, and in actions for trespass to prop- 
 erty, the cause of action shall not be deemed to have accrued imtil the fraud, mistake, or trespass complained 
 of shall have been discovered by the party aggrieved. 
 
LIMITATION OF ACTIONS, II, b, c. 
 
 1053 
 
 In cases of fraud or mistake. — Of mutual acxjount. 
 
 veyance to a third person was without notice 
 of plaintiff's rights, and subsequently learned 
 that such testimony was false and the pre- 
 tended conveyance was fraudulent, held, 
 that the statute of limitations as against an 
 action for relief from such fraud commenced 
 to run from the discovery thereof, although 
 the action on the bond was ban-ed : Muir v. 
 Bozarth, 44-499. 
 
 108. In actions brought by an assignee in 
 bankruptcy to recover damages for fraud, 
 the limitation of two years imposed by the 
 statutes of the United States upon such ac- 
 tions commenced to run when the fraud is 
 discovered : Clews v. Traer, 57-459. 
 
 109. An action for money paid by mistake 
 of one party and fraudulently received and 
 retained by the other is not an action for re- 
 lief on the ground of fraud " in a case here- 
 tofore solely cognizable in a court of chan- 
 cery," and therefore is barred in five years 
 irrespective of the time of discovery of the 
 fraud or mistake: Higgins v. Meiidenliall, 
 51-135. 
 
 110. Tlw cases of mistake referred to in the 
 statutory provision are not limited to those 
 
 ■cognizable solely in equity, but include such 
 as are cognizable at law as well : Higgins v. 
 MendenhaU, 42-675; McGinnis v. IIimt,.¥t- 
 668 ; Higgins v. Mendenhall, 51-135. 
 
 111. Allegations; evidence; bnrden of 
 proof: In an action for relief on the ground 
 of fraud, defendant pleading the statute of 
 limitations must show that plaintiff had 
 knowledge of the fraud more than five years 
 before the action was brought : Baldwin v. 
 Tuttle, 23-66; Harlinv. Stevenson, 30-371. 
 
 112. But the statute commences to run 
 not merely from the actual discovery of the 
 fraud, but from the time when it might, by 
 the use of diligence, have been discovered : 
 Humphreys v. Matoon, 43-556. 
 
 113. The recording of a deed is sufficient 
 notice of any fraud in its execution to cause 
 the statute to begin to run against an action 
 based upon such fraud : Bishop v. Knowles, 
 53-268. 
 
 114. Where a sale is made under the pro- 
 visions of a deed of trust, which is void by 
 reason of insufficiency of notice, and that 
 fact appears upon the face of the conveyance, , 
 
 the grantor in the deed of trust is chargeable 
 with notice of the fact that the sale is void 
 from the time such deed is recorded : Oeb- 
 hard v. Saltier, 40-152. 
 
 115. Where the cause of action is based on 
 a fraudulent execution of a deed, the grantee 
 will be deemed to have had notice of such 
 fraud from the time the deed is filed for 
 record, and the statute of limitations will 
 commence to run from that time : Laird v. 
 Kilbourne, 70 . 
 
 116. Evidence in a particular case held 
 sufficient to show that the discovery of the 
 mistake rehed upon was made within five 
 years: Eggspieller v. Noclcles, 58-649. 
 
 117. Where the petition alleges the dis- 
 covery of the fraud which is the subject of 
 the action, within five years, it is not subject 
 to demurrer: Shank v. Teeple, 33-189. 
 
 118. While, in an action to recover on the 
 ground of fraud, brought more than the stat- 
 utory period after the commission of the 
 fraud, it may be necessary for plaintiff to 
 allege due diligence in the discovery of the 
 fraud, yet objection for failure to allege due 
 diligence not being raised in the lower court 
 by motion or demurrer, cannot be raised for 
 the first time in the supreme court on ap- 
 peal: Clews V. Truer, 57-459. 
 
 119. Payment of taxes: The statute wiU 
 run against an action to recover taxes ille- 
 gally exacted from the time of their payment 
 and not from the time that their Ulegality is 
 discovered : Callanan v. Madison County, 
 45-561 ; Beecher v. Clay County, 52-140. 
 
 120. A tax-payer who is entitled to recover 
 from the county for money paid in the pur- 
 chase of land on which the taxes are not de- 
 linquent, and which is sold by the treasurer 
 by mistake, may bring his action within five 
 years from the discovery of such mistake: 
 Storm Lake Bank v. Buena Vista County, 
 66-128. 
 
 c. In cases of mutual account} 
 
 121. The statute commences to run from 
 the date of the last item, whether debit or 
 credit : Thorn v. Moore, 21-285 ; Mills v. Da- 
 mes, 42-91 ; Keller v. Jackson, 58-629. 
 
 122. The account here contemplated is one 
 which is not interrupted nor broken, net 
 
 * Code, § 2531. "When there is a continuous open current account, the cause of action shall be deemed to 
 have accrued on the date of the last item therein a3 proved. 
 
1054 
 
 LIMITATION OF ACTIONS, II, c; IH, a. 
 
 In cases of mutual account. — When statutory bar complete. 
 
 closed by settlement or otherwise, and is a 
 running, connected series of transactions. 
 Where there was a hiatus of two years, fol- 
 lowed by an item of a different character 
 than those before, held, that the last item 
 was not properly a part of the same account : 
 Tucker v. Quimby, 37-17. 
 
 123. A claim for work performed at differ- 
 ent periods of time, under separate and dis- 
 tinct contracts, is not a continuous, open, 
 current account : Shoricle v. Bruce, 21-305. 
 
 124. Where the indebtedness was accruing 
 daily, monthly or yearly for items of board, 
 rent, etc., held, that it would constitute a 
 current account : Moser v. Crooks, 32-172. 
 
 125. And so held in case of a charge for 
 keepihg and providing for another continu- 
 ously : Wendeling v. Besser, 31-248. 
 
 126. Though a special contract be made as 
 to a specific piece of work, the price thereof 
 may still be a proper item of account : Mills 
 V. Davies, 42-91. 
 
 127. The fact that no date, or an incorrect 
 date, was fixed to the account, or that it was 
 not directly charged to any one, held not to 
 prevent the provisions of this section from 
 applying : Tiibbs v. Maquoketa, 32-564. 
 
 128. In a case not involving the construc- 
 tion of this section, held, that an intervening 
 'jtatement of a balance did not prevent sub- 
 sequent items from forming a portion of the 
 same continuous account: Larrib v. Hanne- 
 man, 40-41. 
 
 129. An interval of one year and nine 
 months between two of the consecutive items 
 of an account, both of which were on the 
 credit side, held not sufficient to show such 
 break in the account or cessation of dealing 
 as to cause the statute of limitations to com- 
 mence to run, it appearing that all the items 
 had relation to the same open and continuous 
 transaction between the parties: Keller v. 
 Jackson, 58-629. 
 
 130. Where, after the conclusion of the 
 debit items of an account, the payment of 
 the same was assumed by a third person who 
 afterwards made payments thereon, held, 
 that such payments were not to be treated 
 as items of the account, and the running of 
 the statute was determined by the date of the 
 last debit item : Hammond v. Hale, 61-88. 
 
 131. Under a statute requiring an action 
 to foreclose an account for a mechanic's lien 
 
 to be brought within one year from the time 
 the payment should have been made, held, 
 that no item of the account of charges for 
 which the lien was claimed should be con- 
 sidered as due before the date of the last 
 item: Merchand v. Cook, 4 G. Gr., 115. 
 
 132. The claim of a public officer for com- 
 pensation is not in the nature of an open ac- 
 count. Each one of several terms of office 
 is to be dee.med a sepafate employment: 
 Cfriffin V. Clay County, 63-413. 
 
 ] 33. Where, in such a case, plaintiff had 
 confessed that his account was made up of 
 separate causes of action, amending his peti- 
 tion and setting out the same in separate 
 counts, held, that he could not afterwards, for 
 the purpose of defeating the statutory bar^ 
 claim that they were parts of an open ac- 
 count: Ibid. 
 
 134. Under a statute which authorized de- 
 fendant to be called as a witness to prove a 
 cause of action which was barred by the 
 statute, held, that an account apparently 
 barred was admissible for the purpose of 
 forming a foundation to i-emove the bar by 
 calling defendant as a witness: Thorn v. 
 Moore, 21-285. 
 
 III. When the statutoet bae be- 
 comes COMPLETE. 
 
 a. In general. 
 
 135. The time during which a party is 
 prevented by injunction from enforcing a 
 judgment in his favor should be excluded in 
 calculating the period of limitation, both as 
 to the person enjoined and those claiming 
 under him : Tredway v. McDonald, 51-668. 
 
 13G. Where the statute has commenced to 
 run against a cause of action, it wiU not be 
 suspended on account of the death of the 
 party in whose favor the cause of action has 
 existed and the minority of the persons to 
 whom his rights have been passed : Bishop v. 
 Knowles, 53-268. 
 
 137. Where plaintiff , within one year after 
 attaining his majority, brought action to 
 redeem from a tax sale made during his minor- 
 ity, claiming title by virtue of a bond for a 
 deed executed more than ten years previously, 
 Jield, that the right which the grantor in 
 the title bond would have to interpose the de- 
 fense of the statute of limitations, against any 
 
UMITATION OF ACTIONS, III, b, c. 
 
 1055 
 
 In case of minors, insane persons, non-residents, etc. 
 
 claim of plaintiff thereunder, passed to de- 
 fendant by the tax deed and might be inter- 
 posed by him against plaintiff's action to 
 redeem : Byington v. Stone, 51-317. 
 
 b. In case of minors, insane persons, 
 
 etc} 
 
 138. Minors: By the statutory provision, 
 action for the recovery of real property 
 must be brought by a minor within one year 
 after attaining majority, when the ten years' 
 limitation expires during the year or during 
 minority. If the limitation runs for more 
 than a year after majority, the minor's rights 
 are the same as those of an adult: Camp- 
 hell V. Long, 20-383. 
 
 139. The statute of limitations will not bar 
 an action by a minor brought before the ter- 
 mination of his minority : MeGinnis v. Ed- 
 gell, 39^19. 
 
 140. The statute commences to run during 
 infancy, but the action is not barred until at 
 least one year after majority: Mathews v. 
 Stephens, 39-279. 
 
 141. Where the minor owns as tenant in 
 common with others, the fact that his claim 
 or right is kept alive by this exception in his 
 favor will not keep alive the claims of his co- 
 tenants : Peters v. Jones, 35-512. 
 
 142. Under a statute extending in favor of 
 a minor the time for redeeming from a tax 
 sale to a year "after such liability is re- 
 moved" (Code, § 892), held, that such disabil- 
 ity was removed by death and the redemp- 
 tion must be made within the year following 
 and not afterwards : Cfibbs v. Sawyer, 48-443. 
 
 143. Insane persons: Under the Revision, 
 there was no such exception in favor of insane 
 persons, nor was there at common law : Sho- 
 rick V. Bruce, 21-305. 
 
 c. In case of non-residents or persons 
 
 in military service. 
 
 144. Time of non-residence not com- 
 puted: Under the statutory provision (Code, 
 § 2538) that the time during which a defend- 
 ant is a non-resident of the state shall not be 
 included in computing the statutory periods 
 
 of limitation, held, that residence and not 
 citizenship was withiu the contemplation of 
 the statute : Savage v. Scott, 45-130. 
 
 145. A person on liis decease ceases to be a 
 non-resident. The disabUity of non-residence 
 ends with his death : Ibid. 
 
 146. The statute commences to run in 
 favor of a defendant having a residence in 
 this state of such character as would subject 
 him to process of the courts of this state. 
 Residence, and not citizenship or domicile, 
 determines the running of the statute: 
 lUd. 
 
 147. Under the statute of limitations of 
 Nebraska, held, that the mere temporaiy ab- 
 sence of a debtor from the state where he has 
 a usual place of residence, such that service 
 of summons might be had upon him, does 
 not suspend the statute of limitations, and it 
 was so held where defendant, though an un- 
 married man, had in the state a house or 
 rooms, which he owned or leased, furnished 
 for his home and place of residence, and still 
 his home and residence while temporarily ab- 
 sent : Thomas v. Brewer, 55-227. 
 
 148. A foreign corporation doing business 
 within the state in such way that action 
 might be brought against it and jurisdiction 
 obtained in the state courts, may take ad- 
 vantage of the statutory limitation, and is 
 not to be deemed a non-resident within the 
 statutory provision: Wall v. Chicago & N. 
 W. R. Co., 69-498; McCabe v. Illinois Cent. 
 R. Co., 4 McCrary, 492; Ouinn v. Iowa Cent. 
 R. Co., 4 McCrary, 566. 
 
 149. The fact that a non-resident land- 
 owner has had a tenant in possession of the 
 property, against whom action might have 
 been brought under Code, § 3246, will not 
 cause the statute of limitations to run in 
 favor of such non-resident owner : Heat.on v. 
 Fryberger, 38-185, 196. 
 
 150. The expressions " out of this ten-i- 
 tory"and "the time of such person's ab- 
 sence," occurring in the corresponding sec- 
 tion of the act of February 15, 1843, relat- 
 ing to the same subject, held to mean such 
 an absence as suspended the power to 
 commence action against such party in any 
 of the methods provided by law; but not 
 
 ■ Ck)de, § 2535. The times limited for actions herein, except those brought for penalties and forfeitures, shall, 
 in favor of minors as defined by this Code, and persons insane, be extended so that they shall have one year 
 from and after the termination of such disability within which to commence said actions. 
 
1056 
 
 LIMITATION OF ACTIONS, III, c. 
 
 In case of non-residents or persons in military service. 
 
 a mere temporary absence, during which 
 tlie family of the party remained at liis usual 
 place of abode, and service of notice might 
 have been had upon him by leaving a copy 
 with some member of suoli family: Penley 
 V. Waterhouse, 1-498. 
 
 151. The term beyond seas, used in a 
 previous statute as indicating an exception 
 to the running of the statute, was lield to be 
 considered as beyond the limits of the 
 United States, and not merely as beyond the 
 limits of the state : Darling v. Meaehum, 2 
 G. Gr., 603. 
 
 152. If, by reason of non-residence of the 
 debtor, an action on a note is not barred, 
 neither is the action to foreclose a mortgage 
 securing the same : Clinton Co. v. Cox, 37- 
 570. 
 
 153. Evidence of non-residence ; burden 
 of proof: Where the only evidence of ab- 
 sence from the state was that defendant 
 went east, held, that non-residence did not 
 sufficiently aijpear in order to defeat the de- 
 fense: Tremaine V. Weatherby, 58-615. 
 
 154. Where a person leaves the state in 
 the employ of the general government, with 
 the intention of returning when such em- 
 ployment shall cease, but the time of his 
 returning is indefinite, and he retains no 
 domicile in the state, he is to be deemed a 
 non-resident : Hedges v. Jones, 63-573. 
 
 155. When a note shows on its face that it 
 is barred by the statute of limitations, and 
 defendant's answer denies the indebtedness 
 and interposes the plea of the statute, judg- 
 naent should not be rendered against defend- 
 ant by default without proof of his not hav- 
 ing been a non-resident of the state through 
 the period of limitation : Smith v. Cage, 31-27. 
 
 156. It appearing that defendant was not 
 a resident of the state where a judgment was 
 recovered against him in 1850, nor subse- 
 quently when revivors thereof were had, and 
 that he resided in this state in 1873, at the 
 time of commencement of suit against him 
 upon such judgment, held, that under the 
 facts a presumption arose that he had resided 
 liere continuously from a period anterior to 
 the rendering of the judgment in 1850: Meek 
 V. Meek, 45-294. 
 
 157. When defendant pleading the statute 
 of limitations shows when the statute com- 
 menced to run, the burden of proving an ex- 
 ception by reason of non-residence is upon 
 the party relying thereon: Evans v. Mont- 
 gomery, 50-325. 
 
 158. Heirs of a person dying in this state 
 and who have themselves been residents of 
 the state cannot be presumed in the absence 
 of evidence to have afterwards been non-res- 
 idents : Laird v. Kilbourne, 70 . 
 
 Further as to Residence, see that title. 
 
 159. Bar In foreign jarisilictiou;! If the 
 cause of action did not arise in this state, the 
 fact that defendant resided here before going 
 to the state where the cause of action became 
 barred, will not prevent his taking advantage 
 of such bar in a subsequent suit here : Lloyd 
 V. Perry, 32-144. 
 
 160. The use of the words "has previously 
 resided ' does not imply that the defendant 
 interposing the plea of bar must at such time 
 be a resident of this state. Tliat plea may be 
 interposed by either a resident or a non-resi- 
 dent : Lebrecht v. Wilcoxon, 40-93. 
 
 161. Aside from statute the rule is that 
 a debt barred by the statute of the state in 
 which it was contracted is not barred by the 
 laws of another state in which suit may be 
 brought. To enable a party to avail himself 
 of the provisions of our statute to the con- 
 trary, he must show that he has, previous to 
 his removal to this state, resided in another 
 state by the laws of which the cause of action 
 has been fully barred : Sloan v. Waugh, 18- 
 224; Petchell v. HopUns, 19-531. 
 
 162. A party must rely upon either the 
 domestic or foreign bar. He cannot weld the 
 time which elapsed before he came to this 
 state to that which elapsed thereafter, in 
 order to obtain the years requisite to con- 
 stitute a bar under our statute: Sloan v. 
 Waugh, 18-234. 
 
 163. As against an indebtedness contracted 
 while defendant was a resident of another 
 state, the statute only commences to run 
 when he becomes a resident of this state (un- 
 less the claim was then barred as provided 
 in Code, § 2534): Petchell v. Hopkins, 19-531. 
 
 164. It will not be presumed that because 
 
 ' Code, § 2534. When a caiise of action has been fully barred by the laws of any country where the defend- 
 ant has previously resided, such bar shall be the same defense here as though it had arisen under the provis- 
 ions of this chapter; but this section shall not apply to causes of action arising within this state. 
 
LIMITATION OF ACTIONS, III, c; IV. 
 
 1057 
 
 Persons in military service. — Commencement of action in proper time. 
 
 ' notes are barred by the law of the state 
 where the defendant lias previously resided 
 a mortgage given to secure them is also 
 barred thereby: Oillett v. Hill, 32-220. 
 
 1G5. Before the change of the statute in 
 1870, which added the last sentence to this 
 section, held, that the provisions as to the 
 bar of a foreign statute fully completed were 
 applicable to actions arising within the state, 
 if they were general in their nature, so that 
 they might have been prosecuted where de- 
 fendant resided : Davis v. Harper, 48-513. 
 
 166. And held, also, that where a cause of 
 action arising in this state had tlius become 
 barred under the laws of a foreign state, the 
 subsequent enactment of the statutory pro- 
 vision of 1870 did not remove such bar: 
 Thompson v. Read, 41-48. 
 
 167. A cause of action for the recovery of 
 taxes paid by a person claiming to be the 
 owner of real estate, but against the one sub- 
 sequently adjudged by the owner thereof, is a 
 cause of action arising in this state under 
 the statutory provision: Bradley v. Cole. 
 67-650. 
 
 168. Persons in military seryice: Under 
 previous statutes exempting the property of 
 volunteers in the United States military 
 service from execution or attachment, pro- 
 viding that the statute of limitations should 
 not run in favor of such volunteer, held, 
 that an action to enforce a mechanic's lien 
 against the property of such volunteer did 
 not commence to run until after his dis- 
 charge from the service : Edwards v. MeCad- 
 don, 20-520. 
 
 1G9. Held, also, that such provision did 
 not apply in case -of action by a soldier 
 against one not in the militarj- service: 
 HuTbert v. Hopkins, 33-122. 
 
 170. The statutory provisions applied in a 
 particular case: Gray v. Spantan, 3.J-.508. 
 
 IT. CoMMESrCEMEXT OF ACTIOX Ef 
 PEOPEE TULE. 
 
 171. What deemed commencement of ac- 
 tion :i Where the original notice was not 
 served until a month after the petition was 
 filed, h eld, that the court would presume the 
 
 = Code, § 2532. 
 
 notice was delivered to the sheriff at the 
 time of the filing of the petition with the 
 intent that it be served immediately, and 
 that the commencement of the action would 
 be presumed frorq that time : Snyder v. Ives, 
 42-157, 
 
 172. The action is not commenced or pend- 
 ing until the delivery of the notice to the 
 sheriff as contemplated by the statute al- 
 though the petition be previously filed : Col- 
 lins v. Bane, 34-385. 
 
 173. However, in an injunction proceed- 
 ing, held, that the filing of a petition and 
 service of tlie writ operated to commence 
 the action, although no original notice was 
 served before the period of limitation had 
 expu-ed: Sweatt v. Faville, 23-321. 
 
 174. Where a petition was filed, but no 
 original notice served and no jurisdiction 
 over defendant obtained until appearance, 
 which was after the expiration of the period 
 of limitation, held, that the suit was not suf- 
 ficiently begun by the filing of the petition 
 to prevent the cause of action being barred : 
 Ewell v. Chicago & N. W. E. Co., 29 Fed. 
 Eep., 57. 
 
 175. The intent in regard to immediate 
 service of the notice which the statute con- 
 templates should be a continuing intent. So 
 where a notice was placed in the sheriff's 
 hands, who neglected to serve the same, but 
 afterwards returned it to the attorney, who 
 lost it and afterwards had another notice 
 served, held, that the action was not begun 
 with the delivery of the first notice to the 
 sheriff, and that the statutory period having 
 expired before the second notice was placed 
 in his hands, the action was barred : Wolfen- 
 der V. Barry, 65-653. 
 
 176. Where an original notice was deliv- 
 ered to a constable in which the return day 
 was left blank and was afterwards filled up 
 by him and served, held, that such delivery 
 of notice did not constitute a commencement 
 of action within the meaning of the statute : 
 Phinney v. Donahue, 67-192. 
 
 177. This statutory provision only fixes 
 the time of commencement of actions with 
 reference to the statute of limitations. Other 
 statutory provisions determine what shall be 
 
 The delivery of the origiiial notice to the sheriff of the proper county with intent that it be 
 served nnmediately, which Intew ghall be pr.=sumed unless the contrary appears, or the actual service of that 
 notice by anotiier person, is a cwnmoeDc^TneKt of the action. 
 
 Vol. 1—67 
 
1058 
 
 LIMITATION OF ACTIONS, IV, V. 
 
 Commencement of action. — Removal of bar. 
 
 deemed commencement of the action for 
 other purposes : Parkyn v. Travis, 50-436. 
 And see Original Notice, §g 58, 59, 
 
 178. Amendment: The filing of an 
 amended petition, if the cause of action re- 
 mains the same, does not affect the question 
 as to whether the action is brought in time : 
 Cobb V. Illinois Cent. R. Co., 38-601, 636. 
 
 179. Where an action was commenced in 
 the name of two parties as executors before 
 the period of limitation had expired, but 
 after the expiration of such period an 
 amended petition was filed by one only- 
 claiming as sole heir, held, that as the amend- 
 ment was allowed without objection, defend- 
 ant could not claim that the action as made 
 by amendment was a different one from that 
 originally commenced: Wade v. Clark, 53- 
 158. 
 
 J 80. An amendment to the petition claim- 
 ing additional damages, and predicated upon 
 the same caiise of action on which the orig- 
 inal petition was founded, may be intei-posed 
 after the time for bringing action on the 
 original cause of action has expired, pro- 
 vided that the action on which such amend- 
 ment was filed has been brought within the 
 proper time : Cooxjer v. Mills County, 69-350. 
 
 181. Where the original petition, although 
 not stating all the facts necessary in law to 
 enable plaintiff to succeed in the action, was 
 not attacked by demurrer or motion, held, 
 that the fact that the party afterwards filed 
 an amendment thereto after the time when, 
 but for the commencement of the original 
 action, the statute of limitations would have 
 barred the action, would not deprive plaintiff 
 of the benefit of having brought his action 
 within the proper time: Myers v. Kirt, 68- 
 134. 
 
 182. Renewal of action : i This provision 
 applies when no judgment on the merits has 
 been rendered and another suit is brought on 
 the same cause of action. If judgment on 
 •the merits is rendered in the first suit, it wiU. 
 bar a new one : McDonald v. Jackson, 55-37. 
 
 183. This section will not operate to ex- 
 tend the period of limitation where a condi- 
 
 tion precedent to the right to bring the ac- 
 tion has not been complied with in proper 
 time, for instance, the presentation of a claim 
 to a board of directors : District T'p v. Dis- 
 trict T'p, 63-30. 
 
 184r. Nor wiU this provision apply to 
 dismissal of an action by plaintiff unless such 
 dismissal is compulsory. Therefore, held, 
 that where plaintiff voluntarily dismissed his 
 action for the reason that he found that he 
 could not obtain justice in the court in which 
 the cause was pending, a new action brought 
 by him after the expiration of the period of 
 limitation, but within six months after the 
 dismissal of the preceding action, was barred : 
 Archer v. Chicago, B. & Q. R. Co., 65-611. 
 
 185. Under this statutory provision the 
 fact that the first suit was discontinued (un- 
 der Code, § 3800), for failure of plaintiff's 
 attorney to file the petition by the time fixed 
 in the notice, constitutes such negligence as 
 to prevent another suit on the same cause of 
 action being brought after the expiration of 
 the statutory period of limitation : Clark v. 
 Stevens, 55-361. 
 
 V. Removal of bae bt admission oe 
 
 NEW PEOMISE.^ 
 
 186. Original action revived: The subse- 
 quent promise is to be considered as a waiver 
 of the statute or the bar created by the stat- 
 ute : Penley v. Waterhouse, 3-418. 
 
 187. An admission or new promise may be 
 made before the bar of the statute becomes 
 complete as well as afterwards : Ibid. ; Lind- 
 sey V. Lyman, 37-3p6. 
 
 188. A new consideration is not necessary 
 to support it. The action should be brought 
 on the original cause of action and not on 
 such admission or new promise: Frisbee v. 
 Seaman, 49-95. 
 
 189. Either an admission or new promise 
 is sufficient. Both are not necessary : Mahon 
 V. Cooley, 36-479 ; Ayres v. Bane, 89-518. 
 
 190. A new promise which operates to 
 keep alive a debt wfil also keep alive the lien 
 of a mortgage given to secure the same: 
 Clinton County v. Cox, 87-570. 
 
 ■> CocJjB, § 2S37. If, after the commencement of an action, the plaintiff tailtherein for any cause except negli- 
 gence in- its prosecution, and a netv suit be commenced within six months thereafter, the second suit shall, for 
 the purposes herein contemplated, be deemed a continuation of the first 
 
 »X!ode,i 2539. Causes of action founded on contract are revived by an admission that the debt is unpaid as 
 well as by a ne-w promise to pay the same. But such admission or new promise must be in writing, signed by 
 the party to be charged thereby. 
 
LIMITATION OF ACTIONS, V. 
 
 1059 
 
 Removal of bar by admission or new promise. 
 
 191. And an admission of the husband, 
 without the wife's consent, will keep alive 
 the lien of a mortgage given on the home- 
 stead to secure the debt : Mahon v. Cooley, 
 36-479. 
 
 192. A renewal by acknowledgment or 
 new promise, made prior to the sale of the 
 premises mortgaged to secure the debt so re- 
 newed, will be binding on the vendee thereof, 
 and he cannot set up the statute of limita- 
 tions against such mortgage : Palmer v. But- 
 ler, 36-576. 
 
 193. But it is otherwise if the renewal is 
 made subsequently to the sale : Day v. Bald- 
 win, 84-380. 
 
 194. "Where a junior mortgage was taken 
 while a senior mortgage was in existence and 
 not barred by the statute of limitations, 
 and the senior mortgage afterward became 
 barred, but was subsequently revived by a 
 new promise of the mortgagor to pay the 
 debt, made (while the junior mortgage was in 
 process of foreolosui-e, held, that no equities 
 having intervened in favor of junior mort- 
 gagee, the debt secured by the senior mort- 
 gage was still a prior lien to that of the junior 
 mortgage : Kerndt v. Porterfleld, 56-413. 
 
 195. What sufficient admission: An ad- 
 mission should not be excluded because made 
 on Sunday : Ayres v. Bane, 39-518. 
 
 196. Partial payments and indorsements 
 thereof on a promissory note are not suffi- 
 cient to prevent the bar of the statute. The 
 rule was different before the adoption of the 
 statutory provision, but as the statute applies 
 to the remedy, it is not unconstitutional as 
 affecting contracts already made : Parsons v. 
 Carey, 28-431 ; Harrencourt v. Merritt, 29- 
 71 : Roberts v. Hammon, 29-128. 
 
 197. An indorsement of part payment 
 made on a note signed by the maker of the 
 note does not constitute such admission that 
 the debt is unpaid and a new promise to pay 
 the same as is required to revive the debt : 
 Halev. Wilson, 70 . 
 
 198. Under the statute of Nebraska pro- 
 viding that part payment shall take the in- 
 debtedness out of the statute of limitations, 
 held, that payment secured by enforcing the 
 claim against the debtor's property by an ac- 
 tion in rem without personal service on him 
 was not sufficient to take the case out of the 
 statute : Thomas v. Brewer, 55-227, 
 
 199. Prior to the statutory provision re- 
 quiring the acknowledgment or new promise 
 to be in writing, held, that it was necessary 
 that there be an existing indebtedness coupled 
 with a promise to pay, or with such circum- 
 stances from which a promise to pay would 
 naturally and irresistibly be implied : Cham- 
 bers V. Garland, 3 G. Gr., 323. 
 
 200. Also held, under the same circum- 
 stances, that plaintiff could not take advan- 
 tage of an indorsement on a note as evidence 
 of a new promise, so as to revive the note, 
 unless he showed such indorsement to have 
 been made by defendant or by his consent, or 
 proved payment of the amount indorsed: 
 Vielev. Ogilvie, 2 G. Gr., 336; Steinhelber v. 
 Edwards, 3 G. Gr., 366. 
 
 201. Without determining whether an in- 
 dorsement of payment, signed by the party 
 to be charged, would remove the bar of the 
 statute, held, that such indorsement, signed 
 by the treastu-er of a district township, had 
 no such effect, as he had no authority to 
 bind such township by his contracts or 
 admissions: Carpenter v. District T'p, 58- 
 335. 
 
 202. A payment upon a current account 
 before it becomes barred will prevent the 
 staute from running as to any part of the 
 account until five years from such payment : 
 Thorn v. Moore, 31-385. 
 
 203. A new promise to pay a debt at a dif- 
 ferent time and in a different manner from 
 that of the original contract is not a new 
 agreement, but only a new promise, and can- 
 not be enforced unless it is in writing as re- 
 quired by statute : Price v. Price, 34r-404. 
 
 204. An agreement extending time on the 
 original obligation without a new considera- 
 tion does not suspend the right of action on 
 such obligation, and therefore does not pre- 
 vent the statute of limitations from running: 
 Ibid. 
 
 205. Where a party is in default as to a 
 debt or obligation, the right of action arises 
 at the time liability accrues, and the statute of 
 limitations begins to run from the time that 
 defendant first becomes liable. Indulgence 
 extended by a party to whom defendant is 
 bound, or anything short of the extinction of 
 the liability, or the commencement of an 
 action, will not defeat the statute. Subse- 
 quent promises to comply with the obliga- 
 
1060 
 
 LIMITATION OF ACTIONS, V. 
 
 Removal of bar by admission or new promise. 
 
 tion will not naake a new cause of action : 
 Cobb V. Illinois Cent. R. Co., 38-601. 
 
 206. Whether an admission would be good, 
 if made to one not a^party in interest or the 
 agent of such party, queer e: Collins v. Bane, 
 34-385, 389 ; Palmer v. Butler, 36-576. 
 
 207. But the admission need not show to 
 whom it was made : Malum v. Cooley, 36-479. 
 
 208. A writing admitting the debt proven 
 to be by the party sought to be charged, but 
 not signed by him, is not admissible, and the 
 oral testimony of defendant that the debt in 
 controversy is the one referred to in certain 
 written admissions is not competent, not 
 being an admission in writing: Collins v. 
 Bane, 34-385, 890. 
 
 209. A renewal of notes evidencing part- 
 nership indebtedness made by the surviving 
 member of the firm, held sufficient to remove 
 the bar of the statute of limitations as to an 
 action to enforce the payment of the indebt- 
 edness out of firm jjroperty held by the repre- 
 sentatives of the surviving partner: Van 
 Staden v. Kline, 64-180. 
 
 210. Where a mortgagor, in executing a sec- 
 ond mortgage to persona as trustees under a 
 will, expressly stated that it was subject to a 
 prior mortgage held by the same persons as 
 trustees of the will of a different person, held, 
 that the recital in the second mortgage was 
 a sufficient admission to the mortgagees, so 
 far as they held under the first mortgage, to 
 take the case out of the statute of limitations, 
 and amounted to a sufficient admission of 
 the existence of the previous mortgage to 
 authorize the inference of a promise to pay 
 the same : Palmer v. Butler, 36-576. 
 
 211. A proposition to compromise is not a 
 new promise to pay and does not revive the 
 debt : Morehead v. Gallinger, 9-519 ; Brenne- 
 man v. Edwards, 55-374. 
 
 212. As to the sufficiency of statements in 
 letters to constitute admissions or new 
 promises, see Bayliss v. Street, 51-627; Oah- 
 son V. Beach, 86-171. 
 
 213. The first part of the statutory pro- 
 vision already set out relating to admissions 
 or new promises simply declares the com- 
 mon law rule. An acknowledgment of the 
 debt is a sufficient admission, but it seems 
 that if the admission or acknowledgment is 
 coupled with the expression of an unwilling- 
 ness to pay and an intention not to pay, it 
 
 will not revive the debt: Penley v. Water- 
 house, 3-418. 
 
 214. Parol evidence may be received to 
 show that a letter containing an admission 
 was addressed to the plaintiff by defendant, 
 and referred to the account in suit, but the 
 amount of the recovery must be limited to 
 the amount therein admitted : Wise v. Adair, 
 50-104. 
 
 215. In a particular case, held, that oral 
 testimony was admissible to show that a letter 
 addressed " Dear cousin" was sent to one hav- 
 ing a beneficial interest in the note sued on, 
 and therefore constituted an admission tak- 
 ing such note out of the statute of limita- 
 tions : Collins v. Bane, 34-385. 
 
 216. The question whether a writing suf- 
 ficiently identifies and refers to the claim in 
 suit in order to constitute an admission tak- 
 ing such claim out of the statute of limita- 
 tions is one of intention, and is properly left to 
 the jury : Ibid. • 
 
 217. The burden of proof is upon plaintiff 
 to show that the acknowledgment has refer- 
 ence to the claim which he sets out, but the 
 question whether it has reference to such 
 claim or not is for the jury : Dixon v. State, 
 8-416. 
 
 218. After a debt has been revived by an 
 admission, the statute commences to run anew 
 against the original cause of action, and will 
 run for the same length of time as against 
 the original claim: Bayliss v. Street, 51- 
 637. 
 
 219. Kemoval of bar by defendant's tes- 
 timony: Under previous statutory provisions 
 authorizing a recovery upon an action 
 founded upon contract, although barred, if 
 from defendant's answer, or his testimony as 
 a witness, it appeared affirmatively that the 
 cause of action still justly subsisted, held, 
 that plaintiff, if he called defendant as a wit- 
 ness to prove the indebtedness, was concluded 
 by the testimony of the latter: Thorn v. 
 Moore, 21-285. 
 
 220. And that the testimony of defendant 
 would remove the limitation only when it 
 showed affirmatively that the cause of action 
 still justly subsisted: Porter v. McKinzie, 
 20-463 ; Stewart v. McMillan, 34r455. 
 
 221. Such statutory provision applied: 
 HowelU V. Patton, 26-531 ; McNitt v. Helm, 
 29-803. 
 
LIMITATION OF ACTIONS, VI. 
 
 1061 
 
 Period in particular cases. 
 
 VI. PeEIOD of limitation IIT PAJJ- 
 TICULAE CASES.^ 
 
 222. Injuries to person: Injuries result- 
 ing in death are " injuries to the person " 
 within the meaning of the statute, and an 
 action by the personal representative therefor 
 is barred in two years : Sherman v. Western 
 Stage Co., 33-556; S. C, 34-515; Nord v. 
 Burlington & M. R. JR. Co., 37-^98. 
 
 223. "Where the injury and the death re- 
 sulting therefrom are not simultaneous, the 
 cause of action is deemed to have accrued 
 to the person injured and not to his personal 
 representatives. (Overruling Sherman v. 
 Western Stage Co., 34-515J: Kellow v. Cen- 
 tral Iowa R. Co., 68-470; Ewell v. Chicago 
 & N. W. R. Co., 39 Fed. Rep., 57. 
 
 224. An action against a carrier of pas- 
 sengers upon a contract of transportation for 
 personal injuries received is baiTed in two 
 years : Nord v. Burlington & M. R. R. Co. , 
 37-498. 
 
 225. In case of injury to the person, the 
 statute of limitations begins to rup from the 
 time of the injury and not from the time the 
 extent thereof is discovered by the person 
 injured: Qusiin v. Jefferson County, 15-158. 
 
 226. An action by the wife or children 
 against a person who causes the intoxication 
 of the husband or father by selling intoxicat- 
 ing liquor to him in violation of law is an 
 action for personal injuries, so as to be 
 barred in two years : Emmert v. Orill, 39- 
 690. 
 
 227. Statute penalty: The double dam- 
 ages allowed against a railroad company for 
 killing stock (Code, § 1389) are not a statute 
 penalty so as to come within this section. The 
 
 action may, therefore, be brought within five 
 years. What are statute penalties as here 
 contemplated, discussed: Koons v. Chicago 
 & N. W. R. Co., 33-493. 
 
 228. The penalty provided by former stat- 
 ute of five times the amount of overcharge 
 to be recovered from a railway company 
 charging a greater amount for transporta- 
 tion of freight than allowed by law was a 
 statute penalty, the action for which was 
 barred in two years: Herrinan v. Burling- 
 ipn, C. R. &N. R. Co., 57-187. 
 
 220. But an action against the company to 
 recover the amount paid in excess of the 
 statutory rate held not to be an action for 
 the penalty, and therefore not barred in two 
 years : Heiserman v. Burlington, C. R. & N. 
 R. Co., 63-733. 
 
 230. An action under Code, S 1550, to re- 
 cover back money paid for intoxicating 
 liquors illegally sold, is not an action for a 
 statutory penalty: Woodward v. Squires, 
 41-677. 
 
 231. Mechanic's lien : Although the filing 
 of a statement for a mechanic's lien, within 
 the thirty or ninety days provided by stat- 
 ute, is not essential to enable the mechanic 
 to enforce his lien against any one except 
 purchasers or incumbrancers in good faith, 
 without notice, after the expiration of that 
 time, yet the two years' limitation com- 
 mences to run from the expiration of the 
 period of thu-ty or ninety days, as the case 
 may be, whether the statement for the lien 
 is filed within that time or not: Squier v. 
 Parks, 56-407; Dimmick v. Birikley, 57-757. 
 
 232. Under the provisions of the Revision, 
 that in case of action to enforce a mechanic's 
 lien, suit must be commenced within nine 
 
 ^ Code, § 2539. The following actions may be brought within the times herein limited, respectively, OuEter 
 their causes accrue and not afterwards, except when otherwise specially declared: 
 
 1. Actions founded on injuries to the person or reputation, whether based on contract or tort, or for a statute 
 penalty, within two years. 
 
 2. Actions to enforce a mechanic's lien, within two years from the time of filing the statement in the clerk's 
 
 3. Those against a sheriff or other public offlcer, growing out of a liability incurred by the doing of an act in 
 an ofBcial capacity or by the omission of an oflBcial duty, including the non-payment of money collected on 
 execution, within three years. 
 
 4. Those founded on unwritten contracts, those "brought for injuries to property, or for relief on the ground 
 of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise pro- 
 vided for in this respect, within live years. 
 
 5. Those f oimded on written contracts, on judgments of any courts, except those courts provided for in the 
 next section, and those brought for the recovery of real property, within ten years. 
 
 6. Those founded on a judgment of a court of record, whether of this or of any other of the United States, or 
 of the federal courts of the United S^tes, within twenty years. 
 
1062 
 
 LIMITATION OF ACTIONS, VI. 
 
 Period in particular cases. 
 
 months from the time of filing the account 
 or statement of the lien, held, that where 
 the account was filed with the clerk within 
 the ninety days allowed for filing such state- 
 ment, the nine months' limitation began to 
 run from the date of such fiUng, and when 
 the account was not thus filed, the time 
 began to run from the expiration of the 
 ninety days within which the account should 
 have been filed, although the failure to file 
 the account would not defeat the lien as to 
 parties having notice : Gilcrest v. Oottschalk, 
 39-311. 
 
 233. Action against public officer: An 
 action against a treasurer, not on his bond, 
 for moneys received and appropriated, is 
 barred in three years as provided in TT 3 of 
 the section: Keokuk County v. Howard, 
 
 ■ 41-11. 
 
 234. So an action against a treasurer and 
 his sureties on his bond, for failure to account 
 for and pay over revenues in his hands, is 
 within this clause and barred within three 
 years. It does not fall within the provisions 
 of ITS: State V. Dyer, 17-333; State v. Hen- 
 derson, 40,-243. 
 
 235. The action of mandamus against a 
 public ofB.cer to compel the performance of 
 an official duty cannot be maintained until 
 there has been a refusal to perform such 
 duty, and the statute commences to run 
 from the time when the plaintiff has a right 
 to demand the performance of the act, and 
 he cannot delay or postpone it by neglectiug 
 to make such demand: Prescott v. Gonser, 
 34^175 ; Beecher v. Clay County, 53-140. 
 
 236. In an action against the clerk of the 
 coiirt for damages resulting from his negli- 
 gence in accepting an insufficient stay bond, 
 held, that the cause of the action did not ac- 
 crue nor the statute begin to run until the 
 stay expired: Steel v. Bryant, 49-116. 
 
 237. Under the Code of 1851, held, that 
 the failure of a county judge to pay over 
 money received by him in his official capacity 
 was not the omission of an official duty, 
 within the meaning of this clause, and, 
 therefore, that the three years' limitation did 
 not apply to an action on his bond to recover 
 such money : Poweshiek County v. Ogden, 7- 
 177. 
 
 238. If action against the sureties of an 
 officer on his official bond bo not brought 
 
 within three years after the breach thereof, 
 it is barred, although in the meantime action 
 may have been brought and judgment re- 
 covered against the principal : Wadsworth v. 
 Gerhard, 55-367. 
 
 239. On unwritten contracts: A parol ac- 
 ceptance of a written proposition constitutes 
 an oral contract : Hulbert v. Atherton, 59-91. 
 
 240. A contract by the board of supervis- 
 ors with an agent for services to be per- 
 formed does not become a written contract 
 from the mere fact that the terms of such 
 contract are embodied in the records of the 
 board : Baker v. Johnson County,' 38-151. 
 
 241. An Oral acceptance of such employ- 
 ment by the opposite party makes the con- 
 tract a parol and not a written contract: 
 Kinsey v. Louisa County, 37-438. 
 
 242. In order to constitute a written con- 
 tract sufficient to bring a case within the 
 next paragraph and prevent the bar of five 
 years from applying, the essential facts estab- 
 lishing the liability of defendant should be 
 in writing : Lamb v. Withrow, 81-164. 
 
 243. Where it was sought to recover of 
 defendant the amount paid by plaintiff in 
 satisfaction of notes upon which the two ap- 
 peared as joint makers, parol evidence being 
 offered to show that plaintiff was only surety 
 for defendant, held, that the action was upon 
 an unwritten contract and could not be 
 brought after five years: Ihid. 
 
 244. Where a surety on a judgment pays 
 the same he may maintain an action against 
 the principal for the amount so paid, but 
 such action is founded upon a promise to re- 
 pay, and not upon the judgment, and will 
 therefore be barred in five years : Johnston 
 V. Belden, 49-301. 
 
 245. An action by an accommodation in- 
 dorser who has paid the judgment on a note 
 to compel contribution by another iiidorser 
 who is liable as co-surety must be brought 
 within five years after the payment is made : 
 Preston v. Gould, 64r-44. 
 
 246. Action against a party to whom a 
 note has been indorsed as collateral security 
 to recover the excess of the amount collected 
 on the note beyond the amount of the in- 
 debtedness is an action upon an implied con- 
 tract and must be brought within five years 
 from the receipt of the money : Branson v. 
 Ballon, 70 . 
 
LIMITATION OF ACTIONS, VI. 
 
 1063 
 
 Period in particular cases. 
 
 247. Under the statutory provision (Code, 
 § 1550) that money paid in pursuance of the 
 illegal sale of intoxicating liquors shall be 
 held to have been received upon a valid 
 promise to repay the same on demand, held, 
 that an action to recover money so paid is 
 only barred after the expiration of such time 
 as would bar an action to recover money re- 
 ceived under an express promise to repay, 
 and that the clause of the statute limiting 
 actions for statutory penalties to a shorter 
 period is not applicable: Woodward v. 
 Squires, 41-677. 
 
 248. Actions for the use and occupation of 
 real estate are to be considered as brought 
 
 . upon an unwritten contract : Tibbetts v. 
 Morris, 43-180. 
 
 249. The six years' limitation upon the re- 
 covery of rents and profits (see Code, § 3261) 
 apphes to an action for the recovery of real 
 property by one having the legal title ; in an 
 equitable action for conveyance and account- 
 ing, rents and profits can only be recovered 
 for five years previous : ilfair v. Bozarth, 44- 
 499. 
 
 On the ground of fraud: As to actions to 
 recover on the ground of fraud, see supra, 
 II, b. 
 
 250. Written contracts: Actions to en- 
 force specific performance of a contract to 
 convey real estate ai-e within this paragraph : 
 Wright v. Ledaire, 3-221. 
 
 251. Where action was brought to fore- 
 close a deed of trust given to secure subscrip- 
 tions of money thereafter to be made, held, 
 that the action was properly brought upon 
 the written instrument, although parol evi- 
 dence was necessary to show that the ad- 
 vances were made, and therefore that the 
 action was not barred in five years : White v. 
 Savery, 50-515. 
 
 252. The statutory provisions as to actions 
 upon written contracts are applicable to 
 suits for the foreclosure of mortgages : New- 
 man V. DeLorimer, 19-244. 
 
 253. And also to actions to redeem : Oower 
 V. Winchester, 38-803; Green v. Turner, 38- 
 112; Crawford V. Taylor, 42-260. 
 
 254. An action to foreclose or redeem 
 from a mortgage is barred at the same time 
 as an action at law on the mortgage debt : 
 Smith V. Foster, 44r-442. 
 
 255. But a mortgage is not barred so long' 
 
 as the debt is unpaid and capable of being 
 enforced: Clinton County v. Cox, 37-570; 
 Brown v. Eodkhold, 49-282. 
 
 256. A mortgage does not become barred 
 so long as the debt which it was given to 
 secure may be enforced, even though the 
 form of the debt has been changed, as, for 
 instance, by being merged into a judgment : 
 Shearer v. Mills, 35-499. 
 
 267. Therefore where, by reason of the 
 absence of defendant from the state, the 
 action upon the indebtedness is not barred by 
 the lapse of ten years, neither is the action to 
 foreclose the mortgage to secure such in- 
 debtedness barred, although the action to 
 foreclose might, by proceedings by publica- 
 tion, have been brought during defendant's 
 absence : Clinton County v. Cox, 37-570. 
 
 258. Although an action to redeem from a 
 mortgage will be cut off at the expiration of 
 ten years from the time the right of redemp- 
 tion accnied, yet where it is claimed that the 
 mortgage has been satisfied by the receipt 
 of rents and profits by the mortgagee in posr 
 session, the action to declare the mortgage 
 satisfied aud have it canceled will not be 
 barred until ten years after the payment was 
 thus completed : Green v. Turner, 38-112. 
 
 25a. Action for the enforcement of a 
 vendor's lieh, being treated in the same light 
 as the foreclosure of a mortgage, must be 
 brought within ten years from the time the 
 cause of action accrued : Day v. Baldwin, 34- 
 380. 
 
 260. On judgments of courts of reeord: 
 The order of a probate court allowing a 
 claim is not a judgment within the statutory 
 provision as to actions upon judgments: 
 Smith V. Shawhan, 37-533. 
 
 261. Under a former statute not expressly 
 specifying judgments, held, that an action 
 upon a foreign judgment was not barred by 
 the provisions as to actions upon bills, notes 
 or writings obligatory for the payment of 
 money or delivery of property, etc. : Latou- 
 rette v. Cook, 3 G. Gr., 593. 
 
 262. Under former statutory provisions 
 specifying judgments of courts of record and 
 also actions upon biUs, notes, etc., held, that 
 an action upon the judgment of a justice of 
 the peace was within the limitation relating 
 to judgments of a court of record : Danemul- 
 ler V. Burton, 4 G. Gr., 445. 
 
1064 
 
 LIMITATION OF ACTIONS, VI. 
 
 Period in particular cases. 
 
 263. For the rccoTery of real property: 
 
 The siatutory provisions as to limitation of 
 an action to recover real property are appli- 
 cable to a suit by a widow^ for dower, either 
 in equity or by action to recover real prop- 
 erty: Pharesv. Walters, 6-lOC. 
 
 264. But the statute does not commence 
 to run against her until her right to dower is 
 denied: Starry v. StaiTy, 21-354; Bice v. 
 Nelson, 21-U8;, Sully v. Nebergall, 30-339; 
 Fetch V. Finch, 52-563. 
 
 265. Lapse of ten years wiU not bar the 
 doweress of her dower whei^e there has been 
 no adverse possession: Berry v. Furhman, 
 30-462. 
 
 266. The statute does not run against the 
 dower right until it has become vested by 
 the death of husband or wife : Hurleman v. 
 Hazlett, 55-256. 
 
 267. Under the present statutory pro- 
 visions, all actions for the recovery of real 
 property, and personal actions on written 
 contracts commenced since July 1, 1856, must 
 be commenced within ten years after the 
 cause of action accrued: Johnson v. Hop- 
 kins, 19-49. 
 
 268. The limitation commences to run 
 from the time of ouster by one who enters 
 with claim of adverse possession, and not 
 from the time the adverse claimant obtains 
 title : Eobinson v. Lake, 14-421. 
 
 269. As against an action for the recovery 
 of real property, the statute begins to run at 
 the time adverse possession is taken and held 
 by the tenant or those under whom he 
 claims. The possession of a tenant holding 
 over after his term, or that of a mere tres- 
 passer, does not amount to a disseizin such 
 that the stat\ite will begin to run. Disseizin 
 occurs only when possession is taken and held 
 without assent of the owner, with intent to 
 hold the estate therein under claim adverse 
 to him : Barrett v. Love, 48-103. 
 
 270. Ten years' use of a highway by the 
 public under claim of right will bar the 
 owner of the soil : Keyes v. Tait, 19-123. 
 
 271. At least in the absence of proof that 
 the road was used by leave, favor, or mis- 
 take : Onstott V. Murray, 22-457. 
 
 272. Whether the statute of limitations 
 runs against the public because of adverse 
 possession of a highway established in the 
 manner prescribed by law, quaere; but held, 
 
 that in case of non-use of a highway for a 
 long time and actual adverse possession 
 thereof for ten years, the public were es- 
 topped from asserting any i-ight thereunder : 
 Davies v. Huebner, 45-574. 
 
 2 73. Mere non-user of an easement granted 
 by deed will not bar the right. There must 
 be some use adverse to that of the grantee 
 to have that effect : Barlow v. Chicago, R. 
 I. & P. B. Co., 29-276. 
 
 Further as to what constitutes adverse 
 possession such as to entitle the claimant to 
 rely upon the statute of limitations, see Real 
 Property, 31-109. 
 
 274. Where an action is brought to set 
 aside a sheriff's sale and get possession of the 
 property conveyed thereby, it is an action to 
 recover real property within the terms of the 
 statute : Williams v. Allison, 33-278. 
 
 2 75. The fact that an action at law to re- 
 cover damages for breach of contract to con- 
 vey real property has become barred will not 
 necessarily bar an action for specific per- 
 formance. Under a former statute, held, 
 that the latter action was within the provision 
 as to real property and not within that as to 
 contracts : Wright v. Leclaire, 3-221. 
 
 276. An action in equity to compel con- 
 veyance by a purchaser who has purchased 
 in trust for plaintiff and her husband, he be- 
 ing deceased, and she claiming to be sole 
 devisee, comes within the hmitation as to 
 actions for the recovery of real property 
 rather than the provisions as to actions for 
 relief on the ground of fraud : Stanley v. 
 Morse, 26-454. 
 
 277. Where the landlord is in an action 
 determined not to be the owner of the prem- 
 ises, his tenant becomes liable to eviction by 
 the real owner at any time, and the statute 
 of limitations against such action for evic- 
 tion commences to run at once and not from 
 the end of the term : Tibbetts v. Morris, 4Z- 
 120. 
 
 278. Where lots were sold in accordance 
 with a plat on which a tract was marked as 
 a public square, and which it was repre- 
 sented should remain open and without 
 buildings, held, that a right of action to re- 
 strain the use or sale of such square as pri- 
 vate property did not accrue until there was 
 an attempt on the part of the grantor or his 
 grantees to make some use or disposition of 
 
LIMITATION OF ACTIONS, VI. 
 
 1065 
 
 Period in particular cases. 
 
 the premises, inconsistent with such repre- 
 sentations: Fisher v. Beard, 32-346; 5. C, 40- 
 625. 
 
 270. The rule that an action by a junior 
 mortgagee to redeem from a senior mortgage 
 is banned in ten years is in no wise depend- 
 ent upon the question of adverse possession : 
 Floyd County v. Cheney, 57-100. 
 
 280. The mortgagor, or his grantee, or a 
 subsequent incumbrancer, do not hold ad- 
 versely to the mortgagor. Therefore, the 
 statute of limitations will not mn in favor 
 of a subsequent grantee as against a mort^ 
 
 gagee. (Explaining Jamison v. Perry, 38-14) : 
 Hodgdmi v. Heidman, 66-645. 
 
 281. Whether there is ad verse possession o r 
 not under a foreclosure sale does not aflec^t 
 tlie period of limitation within which an ac- 
 tion by a subsequent incumbrancer not made 
 party to the foreclosure of a prior incum- 
 brance may bring his action to redeem : Gower 
 V. Winchester, 33-303. 
 
 LIVEBY-STABLE KEEPER. 
 
 See Baiuhents, §g 30^32. 
 
*■ t^^.^J**-"