The criticism is not warranted by the language of the instruction. The jury could not have understood it in the sense counsel claims it bears.

6. The court in pretty full language, in effect, directed the jury that the prosecuting witness, upon sufficient proof, could be found unchaste, though no proof of unlawful sexual intercourse were established. Counsel seem to think that the jury could have inferred that proof of unlawful sexual intercourse, under the language of the instruction, would not of itself establish unchastity. But the criticism of counsel is not well founded. The jury could not fail to understand the instruction as expressing the thought it was given to communicate, namely, that proof of sexual intercourse is not essential to establish unchastity.

7. One of the defenses relied upon was an alibi. The court below, in an instruction, directed the jury to consider the evidence upon this defense, together with all the evidence, in determining defendant's guilt. This instruction is now the subject of complaint. It is surely correct. All evidence bearing upon the question of an alibi, directly or indirectly, must be urged in determining the sufficiency of the defense. Suppose positive, direct, and clear testimony were given of the alibi. Other evidence given, on other points of the case, showed that it was physically impossible for the defense of alibi to be true. It would be absurd to say that the jury should not consider such evidence with the evidence of the alibi.

8. The jury were directed in the fifteenth instruction that they should carefully and deliberately weigh all the evidence, and consider all the instructions, and, if they found that defendant did seduce the woman, they should find him guilty. Counsel insist that this instruction permits a verdict of guilty, without considering the questions of the woman's previous chaste character. But in prior instructions the jury was directed as to that question, and in this they are admonished to consider those instructions. The objection to the instruction is not well taken.

9. The evidence sufficiently supports the verdict. We have considered all questions in the case, and reach the conclusion that the judgment of the district court ought to be affirmed.

INCORPORATED TOWN OF BAYARD v. Baker.

(Supreme Court of Iowa. December 19, 1888.)

1. MUNICIPAL CORPORATIONS-ORDINANCE-PASSAGE-RECORD OF YEAS AND NAYS. Though Code Iowa, § 493, requires the yeas and nays to be taken and recorded upon the passage of a municipal ordinance, it is immaterial that the nays do_not appear to have been called where only five members of a council composed of eight are shown by the record to have been present, all of whom voted in the affirmative.

2. SAME-READING-DISPENSING WITH THE RULES.

Under Code Iowa, § 489, providing that a municipal ordinance shall be read on three different days unless three-fourths of the council vote to "dispense" with the rules, an ordinance is valid if passed by a three-fourths vote upon a motion to "suspend" the rules, there being no substantial difference in the terms. 3. SAME-PUBLICATION-PROOF.

Where an ordinance is certified by the recorder as having been passed by the council on a given day, and he testifies that it was published in a certain newspaper on a day named, the publication is sufficiently proved, though the newspaper is not shown to be of general circulation in the town, as required by statute, as that fact will be presumed, it being the officer's duty to select such a newspaper.

4. SAME-EVIDENCE-RECORDER'S CERTIFICATE.

A recorder's certificate to an ordinance offered in evidence, showing that it is a "true copy of ordinance No. 21 of the incorporated town of B., as passed by the town council at the meeting of March 21, 1888, "is sufficient.

5. SAME VIOLATION OF ORDINANCE-INFORMATION.

An information for a violation of a town ordinance entitled "The incorporated town of Bayard v. F. B., before T. S., mayor of the incorporated town of B., county of G., and state of Iowa," and stating that "the defendant is accused of the crime of violating ordinance No. 21, for that the said defendant, at the town of B., *

did,

*

*contrary to the provisions of ordinance No. 21, entitled, passed the 21st day of March, A. D. 1888, ** and against the peace and dignity and good order of said town of B.," sufficiently shows that the ordinance. alleged to have been violated was an ordinance of the town of B.

6. SAME TITLE OF ORDINANCE.

An ordinance entitled "An ordinance controlling the keeping and use of jacks, stallions, and bulls," which prohibits the use of such animals in public places, does not go beyond the object and scope of its title.

7. SAME INFORMATION-DESCRIPTION OF OFFENSE.

The ordinance mentioned making it punishable to let or try to let the animals enumerated serve mares or cows in public places, an information charging that defendant did "let or try to let a stallion serve a mare" is valid, and does not charge two distinct offenses.

Appeal from district court, Guthrie county; J. H. HENDERSON, Judge. Information before the mayor of the incorporated town of Bayard, charging Frank Baker with the violation of an ordinance of said town entitled "An ordinance controlling the keeping and use of jacks, stallions, and bulls." Defendant was convicted, and appealed to the district court, where he was tried by a jury, and again convicted. From the judgment of the district court he again appeals.

Chas. S. Fogy, for appellant. Applegate & Brown, for appellee.

SEEVERS, C. J. 1. It is contended that the yeas and nays were not called and recorded upon the passage of the ordinance as required by section 493 of the Code. The corporate authority is vested in a mayor, recorder, and six trustees. Code, § 511. The record discloses that it was moved and seconded that the ordinance be passed. Five trustees and the mayor voted in favor of the ordinance, and such fact was duly recorded. It is true it does not appear the nays were called, but as the record fails to disclose any other members of the council were present than those persons who voted "yea," it was unnecessary to call for the nays.

2. It is objected that the ordinance was not read on three different days, and that three-fourths of the council did not dispense with the rule, as provided in Code, § 489. The abstract discloses that it was moved and seconded that the rules be suspended, and the ordinance read the second time; and also it was afterwards moved that the rules be suspended and the ordinance be read the third time. Three-fourths of the council voted in favor of these propositions. If we understand counsel, it is claimed there is a substantial and material difference between "dispense" and "suspend." In this view we are unable to concur.

3. It is said the ordinance contains more than one subject, and is therefore void. Counsel have not seen proper to state wherein the ordinance is amenable to the objection, and therefore we deem it sufficient to say it is not well taken.

4. It is said the ordinance is practically prohibitory, and conflicts with or goes beyond the object and scope of the title. Clearly, in our opinion, the ordinance is not prohibitory, and therefore it is entirely consistent with the title. 5. It is urged no competent evidence of the publication of the ordinance was introduced. The recorder testified it was published in the Bayard News on the 23d day of March, 1888. This evidence was competent, (Eldora v. Burlingame, 62 Iowa, 32, 17 N. W. Rep. 148,) but not sufficient, it is further insisted. It is provided by statute that "all ordinances shall * * * be published in a newspaper of general circulation in the municipal corporation." It is said that the Bayard News is not shown to be a newspaper of general circulation in the corporation. This, in the absence of any showing to the contrary, will be presumed, for the reason that the presumption obtains that officers perform the duties with which they are charged. Besides this, the recorder certified that the ordinance introduced in evidence was "a true copy of ordinance No. 21 of the incorporated town of Bayard, as passed by

the town council at the meeting of March 21, 1888." Conceding the sufficiency of this certificate, the ordinance was at least prima facie admissible. Such is the effect of the case cited. The ordinance was duly certified by the proper officer, and the presumption must obtain it was properly recorded, in the absence of evidence to the contrary.

6. It is urged that the certificate of the recorder to the copy of the ordinance introduced in evidence was insufficient; it did not state that it was a fair and accurate record of this so-called ordinance, made under the direction of the council, or any record whatever, or that the paper offered in evidence was a transcript of such record. We deem it sufficient to say that in our opinion the certificate above set out is clearly sufficient.

7. The ordinance provides "that any, person, who shall stand any jack, stallion, or bull, or try to let any jack, stallion, or bull, to any mare or cow, * * * unless within an inclosure so arranged as to obstruct the public view, and in such place as to prevent the noise thereof from disturbing the public or private families or persons within the town," he should be punished as prescribed in the ordinance. The ordinance introduced in evidence was designated as "No. 21," and the information was entitled, "The incorporated town of Bayard v. Frank Baker, before Thos. Stevenson, mayor of the incorporated town of Bayard, county of Guthrie, and state of Iowa," and it proceeded to state that "the defendant * * * is accused of the crime of violating ordinance No. 21, for that the said defendant at the town of Bayard * * * did, * * * against the peace of the state of Iowa, and contrary to the provisions of ordinance No. 21, entitled 'An ordinance,' * * * passed the 21st day of March, A. D. 1888, in such cases made and provided, and against the peace and dignity and good order of said town of Bayard." It is objected that the information is insufficient because it does not appear that any or what town or city passed the ordinance. It is true that it does not so appear in express words, yet we think the information is clearly sufficient. Any person of ordinary understanding, reading the information, would readily reach the conclusion that the defendant was charged with violating ordinance No. 21, passed by the incorporated town of Bayard. The same strictness is not required in an information for violating an ordinance as in an indictment, (1 Dill. Mun. Corp. § 414;) and we incline to think the information is sufficient under Code, § 4305.

8. The standing, or letting, or trying to let, any jack, stallion, or bull to any mare or cow is not prohibited, unless the same be done or attempted at an improper place. The offense consists in doing the prohibited act at such place. Therefore the information does not charge two offenses, and is direct and certain; the charge being that the defendant "did then and there let or try to let a stallion serve a mare," for the reason that such acts do not constitute any offense unless the same was done at a prohibited place, which it is not claimed is not properly charged in the information.

9. There are other objections made to the information, of a similar character, none of which, in our judgment, are well taken. All the points made by counsel are exceedingly technical, and without substantial merit. It is also said the verdict is not sustained by the evidence. We think differently. Affirmed.

NEW HAVEN LUMBER Co. v. RAYMOND et al.

(Supreme Court of Iowa. December 19, 1888.)

1. ATTACHMENT-REQUISITES-WAIVER BY DELIVERY BOND.

The execution of a delivery bond, and the release of the property, constitute a waiver of all prior irregularities in the attachment proceedings.

2. SAME

DELIVERY BOND-LIABILITY OF Sureties-JUDGMENT-RECITAL.

In order to fix the liability of sureties on a delivery bond, it is not necessary that the judgment against the debtor recite that the attachment is confirmed.

3. SAME FILING BOND.

Code Iowa, § 2996, requiring delivery bonds to be filed with the clerk of court, is merely directory.

4. PLEADING-REPLY.

Although no reply is filed to an amended answer, yet where, at an earlier stage of the trial, the court has ruled that a certain fact must exist in order to sustain the same defense which the amendment sets up, and in which such fact is not alleged, such defense is out of the case, and the court does not err in omitting to refer to it in charging the jury.

Appeal from district court, Clarke county; R. C. HENRY, Judge.

Action at law by the New Haven Lumber Company against D. R. Raymond and others, to recover judgment upon a delivery bond executed by the defendants for the release of certain personal property which was attached in an action by the plaintiff against one A. W Raymond. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal. M. L. Temple and W. M. Wilson, for appellants. pellee.

McIntire Bros., for ap

ROTHROCK, J., (after stating the facts.) 1. It appears that the property in question consisted of certain household goods which had been used by A. W. Raymond as his own. He resided at Osceola, in this state. The goods were packed and boxed, and placed in a car preparatory to a removal to Dakota territory. They were taken on their way as far as Des Moines, and the car was side-tracked. A levy of an attachment was made by the sheriff of Polk county upon the goods, and within a short time thereafter the bond upon which this suit was brought was executed by the defendants; whereupon the sheriff released the goods, and they were transported to Dakota, where the said A. W. Raymond removed, and now resides. The bond is what is known as a "delivery bond." It is recited therein that certain household goods, consisting principally of bedsteads, bedding, bureaus, carpets, mirrors, pictures, dishes, and silverware, had been attached as the property of A. W. Raymond on a claim against him by the New Haven Lumber Company, and that D. R. Raymond had made affidavit claiming a first interest and lien on said goods by virtue of a chattel mortgage on the same. The condition of the bond is that if said attached property shall be delivered to the sheriff to satisfy any judgment which may be obtained against the defendant in said suit, then the bond shall be void. The bond was given in pursuance of the provision of section 2996 of the Code. The question really tried by the district court was whether a certain chattel mortgage executed by A. W. Raymond to the defendant D. R. Raymond was a valid lien upon the goods as against the plaintiff who was a creditor of A. W. Raymond. The plaintiff claimed that it was fraudulent and void, and made to hinder, delay, and defraud creditors.

The plaintiff introduced in evidence a transcript of the writ of attachment, with an amended return thereon, made by the sheriff long after judgment was rendered, and after this suit was commenced. The defendants objected to the same as evidence, because the writ of attachment did not appear to be under the seal of the court, and because there was no authority to make an amended return. These objections were overruled. The execution of the bond and the release of the property must be regarded as a waiver of any prior irregularities in the attachment proceedings. Machine Co. v. Merrill, 68 Iowa, 540, 27 N. W. Rep. 742; Budd v. Durall, 36 Iowa, 315. These rulings of the court were correct. The defendants ought not to be permitted to give a bond wherein it is recited that the property was held by the sheriff upon attachment, and afterwards deny that fact.

2. The plaintiff introduced in evidence the record of a judgment against A. W. Raymond as the foundation of the right to a recovery on the bond. It was objected that the judgment was not shown to be a judgment in the original attachment suit. This objection was without merit. It is claimed that the

judgment was incompetent as evidence, because it showed that the attachment was abandoned for the reason that it was not confirmed by the judgment. This was unnecessary. Waynant v. Dodson, 12 Iowa, 22.

3. Section 2996 of the Code requires that the bond shall be filed with the clerk of the court. It is urged that there was no evidence of such filing. This is merely a directory provision of the statute in no manner pertaining to the validity of the bond. Moreover, the presumption should obtain that the officers did their duty, and that the bond was in fact filed. Other objections are made to the proceeding by the sheriff in making the levy, which are without merit. They were all waived by giving the bond.

4. Objections were made to the rulings upon the admission and exclusion of evidence. We think there was no error in this respect.

5. The trial of the cause was commenced in the court below on the 17th day of February, 1887, and on the next day, and pending the trial, the defendants filed an amendment to their answer, in which they averred that certain articles of the household goods in controversy were the property of D. W. Raymond, not by virtue of the chattel mortgage, but by original and independent purchase. There was no reply to this amendment, and no mention was made of this claim in the charge of the court to the jury. It is urged that this omission in the instruction was erroneous. At first view this would seem to be correct. But it appears, by an abstract filed by appellee, which is not denied, that before this amendment was filed the defendants offered to introduce evidence of an independent ownership of some of the goods, but objection was made upon the ground that the notice required by section 1 of chapter 45 of the Laws of 1884 had not been given; and the court held that such notice was necessary, and no exception was taken to this ruling, and when the amendment was afterwards filed it did not aver such notice. It will thus be seen that the question as to ownership, other than under the chattel mortgage, was out of the case, and it would have been improper to have instructed the jury upon that feature of the controversy between the parties.

Other objections are made to the charge to the jury. They do not appear to us to demand special consideration. We find no error in the instructions, and we are not disposed to disturb the judgment, on the ground that the evidence did not warrant the jury in finding that the mortgage was fraudulent as to creditors. Affirmed.

STATE v. KUEHNER et al.

(Supreme Court of Iowa. December 20, 1888.)

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

Kate Kuehner and Jacob Scratcher were indicted and convicted of nuisance under the law in regard to the sale of intoxicating liquors, and appeal.

ROBINSON, J. The appellants were convicted of the crime of nuisance committed by violating the law in regard to the sale of intoxicating liquors. The cause was submitted in this court on a transcript of but a part of the record, without argument, and without appearance for either party. We have carefully examined the transcript submitted, but do not find any error affecting the substantial rights of the appellants. Affirmed.

DANFORTH v. HARLOW.

(Supreme Court of Iowa. December 20, 1888.)

REPLEVIN-PROPERTY SEIZED UNDER EXECUTION-NOTICE-MORTGAGEe.

The written notice, required by Code Iowa, $ 3055, to be given to the officer holding the goods prior to replevin of property seized under execution, is not dispensed