appears from the record the property was in the hands of a receiver at the time the motion to dissolve was filed. This objection to the continuance of the injunction is without merit.

3. It is urged that the petition does not allege facts authorizing the issuance of an injunction. The position is not tenable. The petition shows the plaintiff's interest in the property as administratrix, the insolvency of the principal defendants, that they are disposing of the property and appropriating it to their own use, and that unless the defendants be restrained by injunction, as prayed, the property effects and assets of the copartnership are in danger of being wholly lost to the copartnership, and to the plaintiff, as administratrix of the estate of J. B. Fletcher, deceased. These allegations authorize the issuance of an injunction as prayed.

Affirmed.

Appellee.

Filed December 5, 1879.

Whether farm property situated within the corporate limits of a city should be taxed for munic.pal purposes, must depend largely upon the peculiar facts of the case. Property involved in this case held to be properly so taxable, under the rule laid down in Fulton v. City of Davenport, 17 lowa, 404. Whether a municipal corporation is liable in any event for municipal taxes illegally levied and collected by its treasurer, and by him paid over to the city authorities, not decided.-[ED.

Appeal from Polk circuit court.

This is an action to recover certain taxes alleged to have been illegally assessed upon a tract of land in the city of Des Moines. The said taxes were for municipal purposes, and it is alleged that the said real estate was farm property, and that it was in no wise benefited by being within the incorporated limits of the city, and was not, therefore, liable to taxation for city purposes. The plaintiffs paid the taxes to the county treasurer, and now seeks to recover the amount thereof from the county. There was a trial to the court and a judgment for the defendant. Plaintiffs appeal.

Holmes & Nottingham, for appellants.

L. G. Bannister, for appellee.

ROTHROCK, J. 1. The land upon which the tax in controversy was levied and paid consists of about 121 acres, and is situated in the eastern part of the city. There are no build

ings upon it. It is enclosed with fences, and has been used exclusively for agricultural purposes. It is bounded on the west by Stewart's addition to the city, which is subdivided into blocks and lots, and some four or five of the streets running east and west through this addition at their east ends abut against the land in question.

The land on the south of that belonging to plaintiffs is laid off into lots. There is a cemetery, which, from an examination of the map of the city, seems to have been taken in square from the west part of plaintiff's land. As is usual in cases of this character there is a conflict in the evidence, and it is a difficult question, even with the aid of a map, to determine whether this land should be held to be taxable within the rules established by this court in a number of cases. Indeed, adjudicated cases aid but little in the determination of questions of this character, where no two cases can be found precisely similar in their facts. As is said in Fulton v. The City of Davenport, 17 Iowa, 404: "Difficult as the task will be, it is apparent that every such case will have to be determined upon its own peculiar circumstances, without regard to any definite or fixed rule, and hence, doubtless, the decision in some instances will appear quite arbitrary and perhaps unsatisfactory." In that case the court adopted the following rule: "When the proprieters of undedicated town property, being locally within the corporate limits, hold such close proximity to the settled and improved parts of the town that the corporate authorities cannot open and improve its streets and alleys, and extend to the inhabitants thereof its usual police regulations and advantages, without incidentially benefiting such proprietors in their personal privileges and accommodations, or in the enhancement of their property, then the power to tax the same arises. *

We think the court below did not err in holding that the land of the plaintiffs was taxable for city purposes within the above rule. It appears that some of the streets in Stewart's addition, which have their termini upon the west line of plaintiff's land, have been worked and improved by the city to some extent. Many of the lots in Stewart's addition have been improved by the erection of dwellinghouses thereon. Some of these buildings are situated quite near the plaintiff's land. From twenty to thirty families reside within two blocks of the west line. There is a church and one of the city school-houses within two blocks. The

eastern part of the city has doubled its population in the last eight years, and Stewart's addition, as one of the witnesses expresses it, "has had its portion of improvements.' It also appears, from the evidence, that one of the plaintiffs at one time stated that he intended to divide the land into lots just as soon as he could get "big enough figures for it." These facts and others, disclosed in the evidence, lead us to the conclusion that the city cannot improve its streets leading to the plaintiffs' property without incidentally enhancing its value as city property, and that the growth of the city in that direction will produce the same result.

2. A question is made by defendant as to whether it is liable in any event for municipal taxes illegally levied and collected by its treasurer, and by him paid over to the city authorities. This question we need not determine, as we have found that the land was subject to taxation. Upon this subject see Butler v. The Board of Supervisors, 46 Iowa, 326. Affirmed.

DANIEL E. PARIS & Co., Appellees, rs. WM. CROWLEY and another, Appellants.

Filed December 5, 1879.

Judgment in this case held not to be so manifestly against evidence as to indicate passion or prejudice.—| ED.

Appeal from Page circuit court.

Action to recover $104.35, the alleged contract price of three stoves sold by the plaintiffs to the defendants. Defence that only two stoves were purchased, and that the same were warranted to be superior in every respect, and to do good work; that one of said stoves wholly failed to fill said warranty. There was a trial without a jury, and judgment for the plaintiffs for $57.77, and costs. Defendants appeal. William McPherrin, for appellants.

Moore & McPherrin, for appellees.

ROTHROCK, J. One of the plaintiffs contracted with defendants to sell them two stoves of a particular description for the aggregate sum of $70.50. A written order was made and signed by the defendants, and sent to the plaintiffs' place of business by the members of the firm who made the sale.

After the order was given the person who made the sale wrote directions thereon to the house to send the defendants another stove of another pattern, in addition to those pur

chased.

He notified the defendants that the additional stove would be sent. All three of the stoves were shipped and received by the defendants. One of those ordered was returned because it did not fill the alleged warranty. The one not ordered was also returned. The costs and charges of returning them, including storage, etc., were $26.46. The court below evidently held that the stove not ordered was rightfully returned. This is apparent from the fact that one-half of the expense of returning the two, deducted from the agreed price of those purchased, leaves an amount about equal to the judgment, to-wit: $57.27. The few cents of difference may be accounted for by the allowance of interest. With regard to the breach of warranty complained of as to one of the stoves ordered, it is enough to say that there is a conflict in the evidence. One of the plaintiffs testified that "the stoves were all first-class in every respect, and I know they were the most perfect working stoves I have ever seen in a long experience with stoves." With this testimony before us we are not prepared to say that the judgment of the court is so manifestly against the evidence as to indicate passion or prejudice. Affirmed.

S. H. DANIELS, Appellee, rs. H. S. LANGDON and others,

Appellants.

Filed December 6, 1879.

Matters stated in an amended abstract, not denied by the opposite party, are to be deemed admitted, and correctly presenting the facts of the case, so far as it conflicts with the original abstract. Instructions and evidence not made part of the record will not be considered on appeal.-[ED.

Appeal from Kossuth circuit court.

Action upon promissory notes. There was a verdict and judgment for plaintiff. Defendants appeal.

George E. Clarke, for appellants.

F. M. Taylor and J. II. Hawkins, for appellee.

BECK, C. J. 1. The notes in suit were executed in the State of Minnesota. The answer, among other defenses, alleges that they were given for intoxicating liquors sold by plaintiff to defendant for "unlawful purposes." The points presented by counsel for defendants are only such as arise upon the issues made by these allegations of the answer. Defendants' abstract presents certain evidence and instructions given and refused applicable to these issues. The v3-32 (no. v) (497)

plaintiff, in an amended abstract, shows that no bill of exceptions, certificate or order of the court, making the evidence and instructions a part of the record, was settled, allowed or made, and that the instructions and evidence set out in the abstract of defendants were not presented and passed upon by the court at the trial of the cause. This amended abstract is not denied by the defendant. It must be regarded as admitted, and as presenting the facts of the case, so far as it conflicts with the original abstract. Lucas v. Jones, 44 Iowa, 298. The evidence and instructions were not made a part of the record by bill of exceptions, nor by a certificate or order of the court, in the case as presented to us upon the amended abstract.

2. Under the rule prevailing here instructions and evidence, and other papers and proceedings not made a part of the record, will not be considered by this court. We need not cite the numerous decisions of the court so holding; they are familiar to the profession. The case presents no question for our determination. The judgment of the circuit court must be affirmed.

STATE OF IOWA, Appellee, vs. D. B. MORSE, Appellant.
Filed December 6, 1878.

A county auditor who gives a false certificate of receipt of moneys, with intent to defraud, may be indicted therefor under section 3968, Code, and it is not necessary to charge that it was given with intent to defraud. —[E».

Appeal from Hardin district court.

The defendant was charged with having made a false certificate of receipts authorized by law while acting as auditor of Hardin county. Having been convicted, and judgment having been rendered upon the verdict, he appeals.

E. W. Eastman, for appellant.

J. F. McJunkin, Attorney General, for the state.

ADAMS, J. The indictment charged in substance that the defendant, being auditor of Hardin county, unlawfully and fraudulently delivered to one Robert Lynk a false certificate of receipts authorized by law in the following words:

"This is to certify that Robert Lynk has paid to the treasurer of Hardin county the sum of $50, in full of interest for 1876, on note made by J. M. Scott, dated March 17, 1869,