They declined to do this at the time, but informed the court that they would reserve the privilege of making a statement of their case until after the testimony in chief for the state should be introduced. If they had been informed that they must make the statement then, or waive the right to make any statement, there would have been no error in refusing to permit them to make a statement after the testimony for the state had closed.

But the passing of their suggestion in silence, by the court and by the district attorney, may have induced them to believe that no objection would be made to their statement on account of the time at which it was proposed to offer it, and to waive the making of the statement before the introduction of any testimony. It must have been apparent, both to the court and to the district attorney, that the attorneys for the defendant waived the making of a statement before the introduction of any testimony, in the belief that they would be permitted to make a statement at the close of the testimony for the state. As there was no rule of statute upon the subject at the time this cause was tried, and the court had, in its discretion, permitted the district attorney to make a statement before proceeding to the introduction of the testimony on the part of the state, the same privilege should have been extended to the defendant. The court might, without error, have refused to allow either the state or the defendant to make a statement. But the court could not legally grant the privilege to the state and refuse it to the defendant. It may be said that it is not shown that the defendant sustained any prejudice by the refusal. But the district attorney regarded the privilege of making the statement of such importance as to insist upon making it, notwithstanding the defendant's objection. If the privilege was important for the state it was equally important for the defendant.

Reversed.

ROTHROCK, J., dissenting. I cannot concur in the conclusion reached in the foregoing opinion, nor in the reasoning upon which it is based. The opinion concedes that it would have been proper for the defendant to have made his statement immediately after that made by the district attorney. The court, then, at the proper time offered to allow the defendant the privilege of making his statement. This was equivalent to saying to the counsel for the defendant that then

was the time to make his statement. When counsel for the defendant declined, and stated that he would reserve his privilege until a later period in the trial, the court was not bound then to determine whether the statement could properly be made at any other time than at the opening of the trial. But, whether the decision should have been made at that time or not, it was, impliedly at least, determined that then was the proper time, when the offer was made, to allow the statement.

The record does not show that the counsel for the defendant made any claim that they were misled in any way by the ruling of the court. No such claim was made at the time it was proposed to make the statement, nor was it made the ground of complaint in the motion for a new trial, nor even urged in argument. It seems to me to be rather a violent presumption to hold that counsel were misled by the silence of the court, without that claim having been in some form made by counsel themselves. It should rather be presumed that the court made the offer at the proper time, according to the practice in that court.

But, conceding that the defendant's counsel were taken by surprise, I think the error is too inconsiderable to require a reversal of the case. The object of a statement to the jury is to prepare their minds to receive the evidence as it is introduced. No other statement should be made except a recital of the facts which the party expects to prove.

The only facts which the defendants sought to prove were these: His wife testified that she saw no hogs brought to his home at the time it was alleged the hogs were stolen; and another witness testified that the trains on the railroad did not slacken their speed at a certain point where other witnesses had sworn that a certain train was slowed up. This, aside from some evidence which tended to impeach some of the witnesses for the state, was all the evidence introduced by the defendant. Now, how the jury could have failed to properly understand and weigh this evidence, without a statement of it by counsel, is more than I can comprehend. If they could not, they were not the twelve intelligent men that the district attorney claimed them to be. The facts upon which the defendant relied were so few and so plain as to need no statement, and, as the law then was, I think there was no abuse of the discretion of the court which could have in the least prejudiced the defendant.

EDWARD SCOTT, Appellee, vs. WINNESHIEK COUNTY, Appellant. Filed December 10, 1879.

"Medical attendance" rendered to pauper, for which a board of supervisors of a county may be liable under section 1361 of the Code, is not to be limited to mere professional attendance by a physician, but includes nursing and watching as well.-[Ed.

Appeal from Winneshiek circuit court.

Action on account for $24 for nursing, washing and boarding furnished to a pauper for four weeks, upon the order of the township trustees. The defendant concedes its liability to pay the amount of two dollars per week. It also concedes its liability to pay the amount charged, unless its liability is limited to two dollars per week by section 1361 of the Code, and the defendant claims that it is. There was a trial without a jury, and judgment was rendered for the whole amount charged. Defendant appeals.

L. Bullis, for appellant.

G. L. Faust, for appellee.

ADAMS, J. It was stipulated by the parties that the pauper was sick and entirely helpless, and was fed by the plaintiff and his family with a spoon, and attended by them night and day as watchers; that the plaintiff and his family administered medicine to him during the entire time mentioned in the account, and rendered him all manner of services implied by the terms nursing and watching.

The amount claimed being less than $100, the proper certificate of appeal was allowed, and the following questions certified: "Whether the board of supervisors should allow plaintiff for washing, nursing and watching more than two dollars per week. Does the same constitute medical attendance within the meaning of that term in section 1361 of the Code? And for which is the defendant liable above the sum of two dollars per week?"

Section 1361 of the Code provides in substance that the township trustees shall provide for the relief of such poor persons in their respective townships as should not, in their judgment, be sent to the county poor-house; that the relief may be either in the form of food, rent, or clothing, fuel and lights, medical attendance, or in money, and shall not exceed two dollars per week for each person for whom relief is thus furnished, exclusive of medical attendance. It is insisted by the defendant that the words medical attendance, as used in the statute, do not mean attendance for the mere

purpose of administering medicine, but attendance for the purpose of prescribing it professionally.

While the words medical attendance are often used to denote the rendering of professional medical services, we do not think that their use in that respect is such as necessarily to exclude all other meanings. The efforts of the physician, however skilful or assiduous he may be, must usually be supplemented by an attendance which he cannot give. It matters not that the persons who give such attendance are usually denominated nurses. Their office is to assist the physician to obtain certain medical results.

We have no reason to suppose that the legislature used the words medical attendance with the design that any narrow or technical meaning should be put upon them. The statute contemplates that there are persons who need county assistance, but who should not be sent to the county poor-house. It provides that the township trustees shall determine who such persons are, and supply the necessary relief. We think that they should be allowed in all proper cases to furnish attendants, other than professional attendants, to administer the medicine professionally prescribed, and do whatever else constitutes a part of the medical treatment. To hold that they cannot be so allowed, under the statute, would, in our judgment, convict the legislature of committing a grave oversight. We see no error in the ruling of the circuit court. Affirmed.

THE FIRST NATIONAL BANK OF DECORAH, Appellant, vs. J. J. HAUG, Appellee.

Filed December 9, 1879.

A gave his note to plaintiff for a certain sum, part of the consideration therefor being a note against third persons for $70.75, which it was agreed should be sued immediately by plaintiff, and if on trial it appeared that such note had been paid, then the amount thereof was to be allowed as a credit on defendant's note. Held, that mere failure of plaintiff to sue such note immediately, if defendant was not damaged thereby, was no defence; that it might be sued within a reasonable time; that the burden was on defendant to show that he had sustained damages by reason of plaintiff's failure to sue such note as agreed.—[ED.

Appeal from Winneshiek circuit court.

Action on a promissory note. Trial to the court. Judgment for the defendant, and plaintiff appeals.

M. P. Hathaway, for appellant.

Brown & Wellington, for appellee.

SEEVERS, J. The defendant pleaded that at the time the note was given, and as a part of the same transaction, the parties executed the following instrument in writing: "It is hereby agreed by and between the First National Bank of Decorah, Iowa, and J. J. Haug, of Spillville, Iowa, as follows: The First National Bank aforesaid hereby assigns to said J. J. Haug their judgment against Rudolph and Christine Pfuminger, in circuit court, Winneshiek county, Iowa, dated May 10, 1875, for $192.50 and costs, and their note made by said Rudolph and Christine Pfuminger, $70.75, date October 8, 1870, due 30 days, 10 per cent. interest. As consideration of such assignment, said J. J. Haug gives his note of even date herewith for $348.78, due one year from date, bearing 10 per cent. interest.

It is further agreed that said First National Bank shall immediately sue said $70.75 note, and if upon trial it shall appear that said note has been paid, then the amount thereof shali be allowed as a credit upon said note of said J. J. Haug for $348.78, of even date herewith, as aforesaid; but if it shall appear that said $70.75 note is not paid, then said J. J. Haug shall pay said note of $348.78, bearing the same date herewith, in full, when due, according to its terms."

Because the plaintiff did not bring suit on the $70.75 note immediately after the execution of the said agreement, the defendant claimed to be discharged from the payment of the note sued on to that extent, and this is the only question to be determined.

There was a finding of fact by the court, in the form of questions and answers. Those deemed material are as fol

lows:

"5. Did plaintiff sue the note in said agreement within the time mentioned in said agreement? Ans. No.

"6. Did the plaintiff, at the time the agreement was executed, understand that the reason why plaintiff desired the condition that the note should be sued immediately, was that it would give defendant an opportunity to indemnify plaintiff in case a judgment was rendered against the maker of the note? Ans. Yes.

"7. What time was said note sued? Ans. In January of 1877.

"8. Was the defendant injured in consequence of the neglect to sue the note in question within a reasonable time after the execution of the agreement? Ans. I don't know; he might have been.