"9. If the note had been sued within a reasonable time, could defendant have protected himself from loss? Ans. He might; it is uncertain.

It is evident the court must have held that it was immaterial whether the defendant had been damaged by the failure to bring suit on the $70.75 note immediately after the writing was executed, or that the burden was on the plaintiff to show that the defendant had not been damaged by such failure. The time within which suit was to be brought was not made the essence of the contract. If the parties had so intended they undoubtedly would have so said. It was not intended the suit should be brought the instant the contract was executed. The word immediately should be construed to mean within a reasonable time, or as soon thereafter as it could be conveniently done. It was not, therefore, intended, if the suit was not brought the instant the contract was executed, the defendant should be discharged from the judgment of the note to that extent. If the defendant were not discharged by the failure to bring the suit instantly, he was not so discharged by the failure to do so at any particular point of time thereafter. This being true, it necessarily follows that the defendant is not discharged at all unless he has been damaged.

There is not, and cannot be, we think, a fixed and precise standard of what constitutes a reasonable time. It is said "the true rule must be that that is a reasonable time which preserves to each party the rights and advantages he possesses, and protects each party from losses which he ought not to suffer." 2 Parsons on Contracts, 661-662. If, then, the maker of the $70.75 note was insolvent at the time the agreement was executed, or if it does not appear that the defendant has suffered a loss by the failure to bring suit, how can it be said he has been damaged? By reason of the failure to sue the defendant asserts he has been damaged to the full amount of the $70.75 note. This is an affirmative fact, and the burden usually rests on him who asserts it. To this rule there may be exceptions, but if so they are rare, and depend upon a peculiar state of facts which does not exist here. It may be, however, the defendant was entitled to such damages as the law would imply. If the defendant be regarded as a guarantor of the $70.75 note, he would still be required to show he was damaged by the plaintiff's failure to sue. The Second National Bank of Rockford v. Gaylord, 34 Iowa, 246. Reversed.

Filed December 10, 1879.

Upon the point in this case that the court was not justified in appointing a receiver, pending foreclosure, the abstract not showing that it contained all the testimony, held, that the same could not be considered. Whether the court may, in any case pending foreclosure, appoint a receiver and deprive the owner of possession, not decided.-[ED.

Appeal from Linn district court.

Action in chancery to foreclose a mortgage. Upon the motion of plaintiff the court appointed a receiver, with authority to take possession of the property, collect the rents, pay taxes, make repairs, etc. From this order defendant Daniels appeals.

A. L. Daniels and James D. Giffen, for appellants.
Rickle, West & Eastman, for appellee.

BECK, C. J. 1. The mortgage in suit was executed by George W. Wilson and wife, who are made defendants. Daniels, another defendant, holds the title of the mortgaged property, having purchased it after the execution of the mortgage. All of these defendants answer the petition, which asks, besides the relief usually prayed for in such cases, that a receiver be appointed to take charge of the property. The pleadings need not be further noticed. The plaintiff, by motion, asked the court to appoint a receiver as prayed for in the petition. Affidavits were filed supporting the motion, which, after hearing, was sustained. From this action of the court Daniels alone appeals, and assigns the same for error in this court. Defendant insists that the case made by the petition and proofs did not warrant the court in appointing a receiver. The authority of the court, in a proper case, to grant such relief, and thus take the property out of the hands of its owner, is not denied. The sufficiency of the showing upon which the court acted is alone called in question. We are relieved of the duty to determine whether the court, in any case of foreclosure, may appoint a receiver, and thus deprive the owner of the possession of the property, and of its rents and profits-a question which we noticed, without deciding, in Myton v. Davenport et al. 2 N. W. REP. No. 6, (October 11, 1879,) p. 402. As appellant fails to raise this question we are not authorized to decide it.

2. The defendant insists, and he makes no other point, that the showing made upon the motion was not sufficient to

entitle plaintiff to the relief granted by the order for the appointment of the receiver; the proofs failing, as he claims, to present a case wherein the court, considering the rights of all parties, was justified in taking the property from the possession of defendant and in putting it into the hands of a receiver; but the abstract fails to show that we have before us all the testimony upon which the court below acted. Under the rules of this court, as enforced in frequent decisions, we cannot review the judgment of the court below, which must, therefore, be affirmed.

O. A. NUCKOLLS, Appellant, vs. E. W. PENCE, Appellee.

Filed December 10, 1879.

Under section 1923, Code, the sale of a growing crop, where the possession is not changed, and no written instrument of sale is executed, acknowledged and recorded, is void as against creditors of the vendor.-[ED. Appeal from Linn district court.

Action of replevin for 70 acres of corn in the field, upon which defendant, as a constable, levied an execution issued upon a judgment against one Moorehouse. Plaintiff claims the corn as his property. There was a trial to the court without a jury, and a judgment for defendant. Plaintiff appeals. J. C. Davis, for appellant.

No appearance for appellee.

BECK, C. J. The corn involved in this suit was raised by Moorehouse upon his own farm, as we understand the abstract. He sold it to plaintiff in July. Prior to the levy plaintiff had cut up some of the corn and fed it to his stock. He made his home with Moorehouse, and kept his stock on the farm. He testifies that he had paid for the corn before the levy. There was no visible change in the possesion of the corn after the purchase, and defendant and the plaintiff in execution had no notice of the sale. Code, § 1923, provides as follows: "No sale or mortgage of personal property, where the vendor or mortgagor retains actual possession thereof, is valid against existing creditors or subsequent purchasers, without notice, unless a written instrument conveying the same is executed and acknowledged like conveyances of real estate, and filed for record with the recorder of the county where the holder of the property resides."

The court below held that the sale of the corn was not good against the plaintiff in execution, a creditor of Moore

house. We think the ruling is correct. The staute contemplates that there shall be something to indicate the change of ownership-a change in the possession which will give notice of the sale, or put creditors or subsequent purchasers upon inquiry. Boothby v. Brown, 40 Iowa, 104; Hickok v. Buell et al. 2 N. W. REP. No. 7, (October 18, 1879, p. 512.)

In the case at bar there was no change in the possession. It remained in Moorehouse's field, subject to his control, as it had been before the sale. The feeding of a part of it by plaintiff did not affect the actual possession of what remained, which was still in Moorehouse. Counsel for appellant insist that plaintiff could not have taken possession more fully and effectually than he did. If this be so it does not help his

case.

If the property were incapable of a change of possession, so as to impart notice of the sale-if Moorehouse's actual possession of the land carried the possession of the corn-it was incumbent upon plaintiff to protect his purchase by a written instrument, acknowledged and recorded as the statute above cited requires for the protection of creditors, and subsequent purchasers.

The judgment of the district court is affirmed.

THE STATE OF Iowa, Appellee, vs. CARL SCHELE, Appellant.
Filed December 10, 1879.

Upon an indictment for assault with intent to commit murder, defendant may be convicted of assault with intent to inflict great bodily injury. Upon an indictment for assault with intent to murder, defendant was found guilty of assault with intent to do great bodily injury. Motion in arrest of judgment on the ground that instruction authorizing the jury so to find was sustained, and thereupon the court ordered the verdict to stand as for assault only, and sentenced the prisoner for such offence. Held, that it had power so to do. Verdict sustained by the evidence.-[ED.

Appeal from Muscatine district court.

The defendant was indicted for an assault with intent to commit murder. He was tried and found guilty of an assault with intent to inflict great bodily injury. The defendant filed a motion in arrest of judgment and for a new trial. This motion was overruled upon all the grounds except one. The motion was sustained upon the ground that the court had misdirected the jury in instructing them that they "could consider the crime of an assault with intent to commit great bodily injury, and find the defendant guilty thereof, if the

evidence warranted such finding." The court thereupon ordered that the verdict stand as for an assault only, and sentenced the defendant to pay a fine of $100 and the costs of prosecution. The defendant appeals.

D. C. Cloud and George R. Cloud, for appellant.

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

DAY, J. 1. Counsel for the appellant insist that the court erred in instructing the jury that they could consider the crime of an assault with intent to do great bodily injury, and find the defendant guilty thereof if the evidence warranted such finding. They cite and rely upon State of Iowa v. White, 41 Iowa, 317. The court below, in sustaining the motion in arrest of judgment to the extent and upon the ground stated, evidently followed that case as above reported. Upon a rehearing, however, which was granted in that case, a different conclusion was reached, and it was held that an indictment for an assault with intent to commit murder does include the offence of an assault with intent to commit manslaughter. State v. White, 45 Iowa, 325. For a like reason such an indictment includes the offence of assault with intent to inflict great bodily injury.

The court did not err in giving the instruction complained of. The error of the court was in sustaining the motion in arrest of judgment upon the ground that there was error in said instruction. But this error was not prejudicial to the defendant, and of it he cannot complain.

2. It is insisted that the court, having found that the defendant could not, under the indictment, be convicted of an assault with intent to inflict great bodily injury, should have set aside the verdict in toto and granted a new trial. The court overruled all the grounds of the motion for a new trial except the one above stated. As we have seen, that ground should have been overruled. The court was satisfied that the evidence sustained the verdict, and that the defendant was in all respects legally convicted, except that the offense of which the defendant was convicted was not included in the indictment. Under such circumstances the court did not err in sentencing the defendant for an offense included in the indictment and necessarily included in the verdict which the jury returned.

3. It is lastly urged by appellant's counsel that the evidence is not sufficient to convict the defendant of any crime. The abstract does not contain any statement that it is an abstract of all the evidence. If, however, we should regard