by that act, or that the act of May 15, 1856, was modified in any respect material to this controversy, unless it is contained in the following language: That said company "shall be entitled for such modified line to the same lands, and to the same amount of lands per mile, as originally granted in aid of the construction of its main line." We think the words "per mile" are words of limitation, and control, qualify and restrain the words "same lands" and "same amount of lands," and that the clause in question should be read and construed as if it had been written as follows: "The said company shall be entitled to the same lands per mile, and to the same amount of lands per mile, as originally granted to aid in the construction of its main line."

Such a reading makes the act consistent with the policy of congress, which, as before said, we believe has never been departed from, so far as this state is concerned, in making grants of lands to aid in the construction of railroads, and that is, to give so much land per mile of constructed road. No instance has been brought to our attention, and we believe none such exists, where congress has not granted a fixed quantity per mile, or where a gross quantity of land has been granted in aid of a constructed road, and this would be the practical effect if the act of congress of June, 1864, is so construed as to give the Cedar Rapids Company lands for the original line, when it constructed only a portion of such line. If the congressional intent had been as claimed by the plaintiffs it would have been expressed, we think, in clear and unmistakable language, such as, all the lands heretofore granted to aid in the construction of the original line.

There are other parts of the act which the plaintiffs insist aid the construction claimed by them. It is not deemed necessary to particularly refer thereto, as in our opinion the intent of congress quite clearly appears when a correct reading of the clause in question is reached.

Con

One of the conditions of the grant made by the state was that the Cedar Rapids Company should construct the "Lyons Plug." This was done, and the plaintiffs insist they are entitled to lands therefor. We think not, for the reason no lands were granted to the company for that purpose. gress, in the act of 1864, required said company to construct what may be designated as the Onawa branch. A portion of this it is said has been constructed. Conceding this to be true, we do not think the plaintiffs are entitled to lands therefor, because the whole branch or road contemplated by con

gress has not been constructed. Besides this, if there is any evidence tending to show that lands were ever selected or claimed until now for the construction of such branch it has escaped our notice.

The next question is whether the plaintiffs have received all the lands to which they are entitled for the modified or constructed line. We incline to think they have not; but the quantity they are entitled to in excess of that received does not exceed 5,000 acres, and we think not that much. More lands have been selected than have been certified, and the former exceeds the quantity the plaintiffs are entitled to.

Whether all or any portion of the lands selected will be certified to the defendants by the general government we have no means of knowing, but think it devolved on the plaintiffs to show that the lands selected had been disallowed, abandoned, or at least in some manner released from the claim made thereto, before other lands could be selected in lieu thereof. It is conceded, as we understand, that if the grant çan be filled from the odd-numbered sections, the plaintiffs are not entitled to any lands in even-numbered sections, and there is no evidence tending to show that the odd-numbered sections within the limits of the grant have been exhausted, and this we think the plaintiffs were required to establish before the even-numbered sections can be resorted to for the purpose of supplying the deficiency.

The result is that the judgment of the district court must be affirmed.

JOHN MADDEN, Appellee, vs. G. A. KOESTER, Appellant.

Filed December 15, 1879.

In an action of slander a witness for defendant, called upon a point in mitigation of damages, was, on cross-examination, asked in regard to cer tain alleged fraudulent practices of defendant, to which the witness aided, having no connection with the issue. Held, improper.-[ED.

Appeal from Scott circuit court.

Action to recover damages for slanderous words spoken of and concerning the plaintiff by the defendant. The defendant pleaded that, in the purchase of certain barley, the plaintiff's conduct was such as to justify the charge. Trial by jury and verdict and judgment for the plaintiff, and the defendant appeals.

W. A. Foster, for appellant.
Bills & Block, for appellee.

SEEVERS, J. The defendant introduced in his own behalf, as a witness, one Domwell, and he gave evidence tending to sustain the defence pleaded, or at least to reduce the damages. The following question was asked said witness on cross-examination: "Do you remember Sears making a contract with Koester for some club or tea wheat? Koester got a telegram that day that it had gone up, and he asked you to go and tell Sears that in the bottom of the cars it was all Fife wheat, and you went and told him so." To this question the defendant objected on the grounds that it was immaterial, incompetent, and not proper cross-examination, and had no tendency to prove any issue in the case. The objections were overruled, and the witness gave evidence tending to show that the defendant had committed a wilful fraud on Sears.

Counsel for the appellee maintain the question was proper, and that the evidence elicted in response thereto, and to other questions to which the same objections were made, was admissible in the discretion of the court, because it had a tendency to disparage the witness, and that an abuse of such discretion must be shown before we can interpose. In support of this proposition 1 Greenl. Ev. § 459; Howard v. The City Fire Insurance Compamy, 4 Denio, 502, and The Turnpike Company v. Loomis, 32 N. Y. 127, are cited.

These authorities, and others that might be cited, enunciate the rule that questions may be propounded to a witness on cross-examination, and evidence elicted which tends to show his feelings and relations to the parties; and possibly the rule extends further than this, and that, in the discretion of the court, the witness may be asked as to fraudulent transactions in which he has been engaged, which have no bearing on the issue, and about which he did not testify in chief. But, as such evidence is collateral to the issue, the answers of the witness to such discrediting questions are conclusive as to the party asking them, and cannot be contradicted by him.

The cross-examination in the present case went beyond this, and the tendency of the evidence was to show that the defendant had attempted to cheat and swindle Sears in a transaction which had no connection with the issue, and that the witness was the instrument used in the perpetration of the fraud. The question is whether this is permissible under the guise of discrediting the witness. No adjudicated case to which our attention has been called so holds, nor do the text-books lay down any such rule. The defendant was not

bound to be prepared to meet and explain other transactions than that at issue. No one can be expected, at a moment's notice, to defend the conduct of a life-time. The matter inquired about was collateral to the issue, and had no tendency whatever to sustain any issue in the case, nor had it any bearing thereon.

If believed by the jury, the evidence would have had a tendency to show that the defendant was not an honest man, and possibly to increase the amount the jury might otherwise have thought the plaintiff was entitled to recover. This clearly would be unjust, and we can readily see that in all probability it was prejudicial to the defendant. We deem it unnecessary to pass upon the other errors assigned. We greatly doubt if any of them are well taken. Some of them will not probably occur on the re-trial of the cause, and it would be improper to express an opinion whether or not the damages are excessive.

Reversed.

MARY A. VARNHAM, Appellee, vs. THE CITY OF COUNCIL BLUFFS, Appellant.

Filed December 15, 1879.

In an action for damages resulting from personal injuries a defendant is liable for the reasonable value of the medical attendance, care and nursing made necessary by the accident, though such services may, as between the plaintiff and the person rendering them, have been gratuitous. Where, in such action, the evidence showed the employment of a physician, held, that testimony as to the reasonable value of his services was competent, though they had not been paid for, and it did not appear that he claimed any compensation for such services. Instructions to the jury, where no exception is taken, will not be reviewed. Notoriety of the existence of a defect in a street may be established by the evidence of persons other than citizens of the city or town. To authorize this court to examine the question as to whether the verdict is supported by the evidence the abstract should contain all the evidence.-[ED.

Appeal from Pottawattamie circuit court.

Action at law to recover for personal injuries sustained by plaintiff from falling into a pit, negligently made and permitted by defendant, in a public street in the city. There was a verdict and judgment for $1,100 for plaintiff. Defendant appeals.

G. A. Holmes and Rising, Wright & Baldwin, for appellant. D. C. Bloomer and Robert Percival, for appellee.

BECK, C. J. 1. We will proceed to discuss the errors insisted upon in argument by defendant's counsel, so far as the condition of the abstract will permit their consideration. The

plaintiff stated in her testimony that she employed a physician to attend her during her illness caused by the injuries, and that she had not paid him. It was shown that this physician had removed from the state.

Another physician was called, at the trial, to prove the value of the services of the physician attending upon plaintiff. This evidence was admitted, against objections made by defendant, which are repeated in this court on the ground that it was not shown the attending physician was paid, or claimed or could claim compensation for his services, and, under these circumstances, it was not competent for another physician to fix his compensation. The objections are not well taken. The evidence shows the employment of the physician; the law will imply a promise to pay the reasonable value of his services. Plaintiff being under obligation to pay for these services, she may recover therefor; the indulgence she received from her physician will not defeat her claim against the defendant.

2. It was shown by plaintiff's testimony that she lived with her daughter, who, for many weeks while the mother was suffering from the injuries, nursed her and bestowed the care and services demanded by her condition.

The daughter was a witness, and was asked this question : "What was the service she (plaintiff) has had in attending on her worth?" (referring to services rendered while she was suffering from the injuries.) The answer was: "Three hundred dollars." It is insisted that this answer did not establish the value of the services. It surely did, in the plainest language, give the estimate of the witness, and that was all she was asked to give, or could give.

It is also objected that the daughter could not recover, in the absence of an agreement from the mother, for these services, and the testimony was therefore incompetent. But it does not follow that plaintiff cannot recover because the services were rendered to her gratuitously. The defendant ought not to profit by the generosity of the daughter, or on account of the relation between the plaintiff and her nurse. The defendant ought to pay the damages sustained by plaintiff.. Outlays and services in nursing her are proper elements whereon damages are based.

3. No exceptions were taken to the instructions given to the jury; they cannot therefore be the grounds of objections in this court. We are not permitted to consider the errors