B.

: RULE APPLIED.

The citizens of O. subscribed twenty thousan-1 dollars to be paid to a railroad company if its line should be completel to their place on the first day of January; the company cotracted with Q. for the construction of a portion of the road; after performing a part thereof, Q. informed the president of the company that he owed for supplies, and that he could not complete the work at the contract price; the president then instructed him to go on with the work, promising him and the agent of his creditors that for money actually expended in the work he should be paid, and that the just claims of his creditors should be met, and thereupon Q. proceeded with the work: Held, that the agreement of the president of the company was without consideration. Id.

14. PARTNERSHIP: DEATH OF PARTNER. The death of a member of a partnership will not release the surviving members from the obligation to perform the contracts of the firm, except where the personal service or peculiar skill of the deceased partner is required for their performId.

ance.

15. TIME OF PERFORMANCE: REASONABLE TIME. Where a contract provided that the plaintiff should bring suit immediately upon a certain note, but time was not expressly made of the essence of the contract. it was held that it should be construed to give the plaintiff a reasonable time within which to bring such suit, and that the burden was upon the defendant, who alleged a failure to comply with the provision as to time, to show that his rights had been prejudiced by the delay. The First National Bank of Decorah v. Haug, 535.

16. SPECIFIC PERFORMANCE. A contract which is essentially one for the payment of money, and for a breach of which a party can be compensated in damages, will not be specifically enforced by a court of equity. The First National Bank of Decorah v. Day Brothers et al., 680.

See ATTORNEY'S FEES, 2.

EVIDENCE, 10.

FRAUDULENT REPRESENTATIONS, 3.

INSTRUCTIONS, 1.

MECHANIC'S LIEN, 1, 5.

PROMISSORY NOTE, 1.

RAILROADS, 6.

SERVICES, 1.

CONVEYANCE.

1. BY BANKRUPT TO ASSIGNEE.

A deed executed by a bankrupt, conveying real estate to his assignee, is sufficient, prima facie, to authorize the assignee to maintain an action to quiet the title in himself. Lewis v. Soule et al., 11.

2. TITLE TAKEN IN ANOTHER'S NAME: TRUST. Where one person furnishes the money with which real estate is purchased, and the title is taken in the name of another, equity will compel the latter to convey to the former. Tinsley v. Tinsley, 14.

3. VENDOR'S LIEN: MORTGAGE.

As between vendor and vendee a mortgage by the latter does not constitute a conveyance, as contemplated in section 1949 of the Code, which will deprive the vendor of a lien for the purchase-money, and such lien attaches to the vendee's equity of redemption under the mortgage. Id.

4.

:

The fact that the mortgage was executed by both vendor and vendee, covering also property of the former and securing their joint note, in the proceeds of which both shared, will not defeat the vendor's lien, the note being unpaid. Id.

5. VALIDITY: UNDUE INFLUENCE. Evidence considered and held insufficient to establish the invalidity of a conveyance of certain real estate by a father to his son. Johnson v. Johnson, 586.

6. REFORMATION OF DEED: MISTAKE. Evidence considered which was held insufficient to warrant the reformation of a deed as against the wife of a grantor, by showing that a mistake, by which lands other than those intended by the husband were described in the conveyance, was shared by the wife in the relinquishment of her dower interest. Sieben v. Franks, 642. See EVIDENCE, 5.

FRAUDULENT CONVEYANCE.
VENDOR AND VENDEE, 1, 2.

CORPORATION.

1. ABANDONMENT OF. Facts considered which were held to constitute an abandonment of the corporate organization of an agricultural society by its stockholders, and to show that the institution of a suit in its name was without authority. Union Agricultural Society v. Gamble et al., 524.

2. STOCKHOLDERS: PERSONAL LIABILITY. Facts considered and held not to establish a personal liability on the part of certain stockholders in a corporation, to indemnify other stockholders for the signing of certain notes as surety for the corporation. Larson et al. v. Dayton et al., 597.

FEND.

See PRACTICE, 19.

COSTS.

1. IN ACTION AGAINST ESTATE: WHEN ADMINISTRATOR REFUSES TO DEWhere judgment is recovered by the plaintiff in an action against an administrator who refuses to defend, but defense is made by the heirs of his intestate, the costs should be taxed against such heirs. Drummond v. Irish, 41.

2. PARTITION: ATTORNEY'S FEES. In an action which is essentially one to determine the title to land, though in form an action for partition, and where the defense is not frivolous, the fees of plaintiff's attorney cannot properly be taxed as a part of the costs, and apportioned as provided in section 3297 of the Code. McClain v. McClain and Davenport, 272. See MUNICIPAL CORPORATIONS, 9.

COUNTY.

MEDICAL ATTENDANCE. The 1361 of the Code, are attendance of a phy Where the plaintiff

1. LIABILITY FOR CARE OF PAUPER:
words "medical attendance," as used in section
not restricted in their meaning to the professional
sician, but may include nursing and watching.

and his family cared for a pauper who was sick and helpless and
required constant attendance, it was held that his recovery from the
county was not limited by said section to two dollars per week. Scott
v. Winneshiek County, 579.

See ESTOPPEL, 1.

STATUTE OF LIMITATIONS, 1, 2.
TAXATION, 1, 2.

COUNTY SUPERINTENDENT.

See MANDAMUS, 1.

CRIMINAL LAW.

1. FORGERY: WHAT CONSTITUTES. It is not necessary to constitute the
crime of forgery that the instrument made or uttered should possess all
the requisites of commercial paper. The signing of the name of
another to an order requesting the payment to the bearer of a sum of
money was held to be forgery, although neither the drawee nor payee
was named therein. The State v. Baumon, 63.

2. ADULTFRY: VOID DECREE OF DIVORCE. The defendant procured a
decree of divorce from his wife and married again. Upon proceedings
by the former wife, the decree of divorce was held void for fraud and
annulled. In a criminal prosecution, held, that defendant was guilty
of adultery in cohabiting with the second wife. The decree of divorce,
being adjudged void, was so from the beginning, and neither that nor
the good faith with which it was contracted gave any validity to the
second marriage. The State v. Whitcomb, 85.

3. INDICTMENT: GRAND JURY. It is not competent for the court, upon a
motion to set aside an indictment, to inquire into the character of the
evidence upon which the grand jury acted. The State v. Fowler, 103.
The fact that a grand juror was discharged during the
examination of a case, and another substituted without being examined
by the defendant, will not authorize the court to set aside the indict-
ment found without a showing of prejudice. Id.

4.

5. EVIDENCE. Defendant was charged with having committed an assault
with a slung shot: Held, that while evidence of the fact that he had
such a weapon in his possession shortly after the alleged assault was
admissible, it was not competent to show his actions and manner when
called upon to give it up. Id.

6.

: WITNESS BEFORE GRAND JURY. When the minutes of a wit-
ness' testimony before the grand jury are properly returned, the fact
that his name is not upon the indictment will not prevent his examina-
tion upon the trial. Id.

7. BURDEN OF PROOF: SELF DEFENSE. In a prosecution for an assault,
the burden is upon the State to show that the defendant did not act in
self defense. Id.

8.

: INFANT. Where the defendant was under fourteen years of age
at the time of the commission of an alleged offense, it is incumbent
upon the State to show that he possessed sufficient capacity to under-
stand the nature of the crime. Id.

9. CREDIBILITY OF WITNESSES: DISCRETION OF JURY. While the jury
must judge of the credibility of witnesses, yet in doing so they must
exercise judgment, aided by the rules for discovering truth. Id.

10. EVIDENCE: GOOD CHARACTER. Evidence of good character is always
admissible in a criminal prosecution, and should always be considered
by the jury, not only as bearing upon the main question of defendant's
guilt, but, if guilty, in determining the degree of the crime. The
State v. Jones, 150.

11. LARCENY: EVIDENCE. Upon the trial of the defendant for the larceny
of certain colts, he offered evidence tending to show that he had been
informed that the colts were not the property of the prosecuting wit-
ness, but that the sale to him was a sham and they had in fact been
sold instead to the person with whom defendant was jointly indicted
for their larceny: Held, that such evidence was material and should
have been admitted. The State v. Waltz, 227.

12. INSTRUCTION: DEGREE OF PROOF. In a criminal prosecution, an in-
struction which draws a distinction between two facts, both of which
are essential to the conviction of the defendant, as to the degree of
proof required for their establishment, is erroneous. The State v.
Stewart, 284.

13.

:

The giving of an instruction which is susceptible of
being so construed as to require the jury to convict, unless each indi-
vidual juror shares a reasonable doubt of defendant's guilt, constitutes
prejudicial error. Id.

14. INCLUDED CRIME: ASSAULT.

15.

The crime of assault with intent to com-
mit great bodily injury is included in an indictment for assault with
intent to commit murder. The State v. Schele, 603.

: PRACTICE. Where the defendant was found guilty of a crime
which, in the opinion of the court, was not included in the one charged
in the indictment, it was held competent to sentence him for an offense
which was included in the indictment, and also necessarily included in
the verdict. Id.

16. EXCESSIVE SENTENCE: PRACTICE IN THE SUPREME COURT. Where
the record in a criminal case contains none of the testimony, the Supreme
Court cannot consider the question as to whether or not the sentence
imposed by the court below is excessive. The State v. Durston, 635.

17. WAREHOUSE RECEIPT: SHIPMENT OF GRAIN STORED. The following
receipt was executed by the defendant: "Received from Wm. Petrie,
178 34-60 bushels of wheat, quality as per sample preserved, to be stored
until he is ready to sell." Held, that the shipment of the wheat out of
the state by the defendant while the receipt was outstanding rendered
him criminally liable, under section 4083 of the Code, and that evidence
tending to show that the shipment was made with the knowledge and
verbal consent of the owner of the wheat was immaterial and properly
rejected; the statute being designed to protect third persons who may
purchase the receipt, as well as the one to whom it is issued. The State
v. Stevenson, 701.

See AUDITOR, 1.
PRACTICE, 26, 27.

DAMAGES.

1. ASSAULT AND BATTERY: EXEMPLARY DAMAGES. In an action to recover
damages for an assault and battery, where the battery followed imme-
diately upon the assault, it was held competent to consider the excessive

nature of the battery as bearing upon the question of exemplary dam-
ages, and that such question was properly submitted to the jury. Red-
din v. Gates, 210,

2. MALICE. It was not erroneous to charge the jury that malice
might be inferred from the circumstances attending the act. Id.

3.

4.

5.

6.

CHARACTER. The court correctly charged the jury that evidence
of defendant's generally peaceable character should not be considered as
rebutting malice, or in mitigation of damages. Id.

- EVIDENCE. A ferreotype of plaintiff, taken shortly after the
battery and showing his injuries, after being properly identified, was
admissible in evidence, and the weight to be given it was a question for
the jury to determine. Id.

The amount of compensatory damages to be allowed in such
case is a matter resting in the sound discretion of the jury. Id.

The amount of a fine paid by defendant upon a conviction for
the offense in a criminal prosecution was not proper to be considered in
mitigation of either compensatory or exemplary damages. Id.

See CONTRACT, 10.

EVIDENCE, 19, 20.

INTOXICATING LIQUORS, 1, 2.

MUNICIPAL CORPORATIONS, 7, 10, 12.

RAILROADS, 10, 11, 12, 13.

DEED.

1. DELIVERY IN BLANK. A deed executed with a blank for the name of
the grantee, and delivered with authority to fill the blank, becomes a
valid conveyance by the insertion of the name of a grantee. Facts con-
sidered which were held to authorize the filling of such blank after the
lapse of nine years from the date of the delivery of the deed. McClain
v. McClain and Davenport, 272.

2.

PURCHASER WITHOUT NOTICE.

Such deed will not, however, be
valid as against the title of one who purchased from the grantor, with-
out notice, before it was filed for record. Id.

See CONVEYANCE, 6.

EVIDENCE, 5.
WARRANTY, 1.

DESCENT.

1. WHEN NO ADMINISTRATOR IS APPOINTED: PROMISSORY NOTE. The
personal property of a decedent intestate, after the lapse of five years
from the date of his death without the appointment of an administrator,
becomes the joint property of his heirs at law, and they may maintain
actions for the collection of notes executed to him. Phinny et al., v.
Warren, 332.