FENCE.

1. PARTITION FENCE: LANDS IN COMMON. Lands may be said to be used in common where its use does not require an inclosure. The term "in common" is used solely with reference to the obligation to contribute to a partition fence. Syas v. Peck et al., 256.

2.

: ——: HERD LAW. In a county where the herd law is in force, a party cultivating a farm and using it for raising crops cannot be required to build and maintain one-half of the partition fence, between his farm and that of an adjoining owner whose farm is inclosed; and section 1508, Code, is not inconsistent with this rule. Id.

FIXTURES.

1. WHAT ARE: RIGHTS OF PURCHASER AT JUDICIAL SALE. A smutter, loaned to the owners of a grist mill and placed therein in the usual manner of fastening smutters, and to all appearances an essential and necessary part of the mill, as to a purchaser at a judicial sale without notice of the arrangement between the parties, must be regarded as constituting a part of the realty. Stillman v. Flenniken, 450.

FRAUD.

1. FAILURE TO PROVE: VERDICT. In an action upon a bond, where the defendants wholly failed to prove the fraud and collusion on the part of the plaintiff, alleged as a defense, the court should have instructed the jury to find a verdict for the plaintiff. Fairburn v. Goldsmith et al., 339.

1. EVIDENCE OF. Evidence in relation to the conveyance of certain real estate and the assignment of certain judgments, constituting all the property the grantor had subject to execution, considered and held sufficient to justify the court in the conclusion that the conveyances were fraudulent, as to the creditors of the grantor. Searing v. Berry et al., 20.

2. CONSIDERATION: TRUST. Where the consideration for a conveyance is, in fact, a secret trust for the support of the grantor, the conveyance is fraudulent. Strong et al. v. Lawrence et al., 55.

3. VOLUNTARY: WHEN VOID: burden of proOF. If the debtor is insolvent at the time judgment is rendered, his insolvency will be considered as extending back beyond a voluntary conveyance of his property made during his indebtedness, unless the contrary be shown; and the burden is upon the party claiming under the conveyance to show that his donor, at the time it was made, had other property amply sufficient to pay all his debts. Id.

4.

-: ACTION TO SET ASIDE: NULLA BONA: JOINT AND SEVERAL LIA

BILITY. If a remedy is sought by an action in equity, in the nature of a creditor's bill, it is not necessary to have an execution returned nulla bona, where the debtor is otherwise shown to be in fact insolvent. Section 2550, Code, abolishes all distinction between joint and several liability, and authorizes an action against any one of the parties to a joint obligation. Id.

5.

WHAT IS: PRICE PAID AND VALUE. Where the difference, between the price paid and the actual value of the property, is apparent and great, the conveyance will be regarded as voluntary to the extent of that difference. Id.

6. HUSBAND AND WIFE: FRAUD: PLEADING. Where a husband, who is insolvent, makes a voluntary conveyance to his wife, or pays the purchase price of property which is conveyed to the wife, the conveyance is presumptively fraudulent; and it is not necessary in such case to charge fraud as against the wife. Triplett v. Graham et al., 135.

7. WHAT CONSTITUTES: INTENT: KNOWLEDGE OF VENDEE. The conveyance of all his tangible property, by one against whom suits are pending, will warrant the court in finding that the conveyance was fraudulent as to the vendor; and if the vendee had knowledge of the fraudulent intent of his grantor, or had notice of such facts as would have put a man of ordinary prudence upon inquiry, which, if made with ordinary diligence, would have led to the knowledge of the fraudulent purpose of the vendor, his title to the property will not be protected, notwithstanding he paid a sufficient consideration therefor. Williamson et al. v. Wachenheim et al., 277.

8. FRAUD: EVIDENCE OF: PRACTICE IN THE SUPREME COURT. Evidence considered and held not sufficient to establish that a certain conveyance had been procured by fraud. In rendering judgment in a chancery cause, upon appeal, this court will not review the evidence in detail, but simply state its conclusions upon the facts. Radford v. Folsom et al., 473.

9. EVIDENCE: BURDEN OF PROOF. The party, alleging that a certain conveyance to the wife of a debtor was fraudulent, has the burden of proving the fraud. Evidence considered and held insufficient to establish the fact of fraud in the conveyance. Wolf v. Chandler et al., 569. 10. SECURITY FOR DEBT: HUSBAND AND WIFE. A conveyance by a husband to his wife, she knowing he was largely indebted at the time, will be treated as a security for the amount of her husband's bona fide indebtedness to her, and sustained to that extent; and, subject thereto, creditors may enforce their judgments against the property so conveyed. Stamy v. Laning et al., 662.

See CONVEYANCE, 5.

MORTGAGE, 6.

GARNISHEE AND GARNISHMENT.

1. JUDGMENT: JUSTICE OF THE PEACE: DEFENSE. A judgment rendered by a justice of the peace, against a garnishee residing in another county, upon such garnishee's answers, though without notice to the judgment debtor, would be a valid defense to an action brought by him against such garnishee for the same indebtedness. Smith v. Dickson, 444.

2.

: PROCURED IN BAD FAITH. Where the garnishee knowing the funds in his hands were exempt, procured the garnishment against himself, and failed to plead the exemption or notify the judgment debtor, it was held that such judgment was procured in bad faith, and would be no shield or defense to an action for the same funds. Id. 3. AGREEMENT TO RETURN PROPERTY. A garnishee, who held the property of the garnishee defendant for a certain purpose, delivered the same to the sheriff upon being served with the garnishment, upon an agreement that the amount thereof necessary for the specified purpose, when determined should be returned. Held, that the agreement by the officer was binding and ought to be performed. Buckham v. Wolf et al., 601.

VOL. LVIII—50

4. APPEARANCE: NOTICE: JURISDICTION. A garnishee, when called upon to appear and answer in court, should be legally served with notice, requiring him to so appear on the first day of the next term after the writ or execution issues and the service is made; and where the notice requires the garnishee to appear at any other time, the court thereby acquires no jurisdiction, and cannot enter a judgment against the garnishee by default. Padden et al. v. Moore et al., 703.

5. INDEBTEDNESS: BURDEN OF PROOF. A garnishee is not presumed to be indebted to the execution or attachment defendant, and the burden of showing such indebtedness rests upon the plaintiff in the garnishment proceedings. Id.'

See BILL OF EXCEPTIONS, 1, 2.

JURISDICTION, 2.

TRUSTS AND TRUSTEES, 2.

GRAND JURY.

1. OBJECTION TO PANEL: WAIVER. A defendant, who is in court personally or by attorney, must make his objection to the panel of grand jurors when his case is submitted to their consideration, and his failure to do so then will be a waiver of his right to object subsequently. The State v. Ruthven, 121.

See CRIMINAL LAW, 10.

GUARANTY.

A guar

1. LIABILITY OF GUARANTOR: PROMISSORY NOTE: LIEN LOST. anty, indorsed upon a note, is an absolute contract for the payment of the note at maturity upon default of the maker; and the guarantor will be liable thereon, although the note was secured by a lien upon personal property, and the guarantee failed to enforce such lien until the security became lost and the maker of the note insolvent. Adams & French Harvester Co. v. Tomlinson Bros. et al., 129.

See FALSE REPRESENTATIONS, 1, 2.

GUARDIAN.

1. POWERS OF: Direction of COURT. Guardians have authority to lease the lands, loan the money and manage the interests of their wards under the direction of the court, but the direction must precede the act, and without such direction the guardian would have no authority to do such acts and would be answerable therefor. Bates, Guardian, v. Dunham, 308.

2. PURCHASE OF LANDS: ACCOUNTING. Where a guardian invested money belonging to his wards in real estate without the order of court, taking the title in the name of his wards, it was held to be a sufficient accounting as to the wards who had attained their majority; and that, by retaining the legal title with knowledge of the facts, they had ratified the purchase. Cassedy v. Casey et al., 326.

3. PAYMENT OF MONEY FOR WARDS: CREDIT. The payment of money in good faith by the guardian for the benefit of the wards, or in respect to their property, but not shown to have been rightfully paid, will not justify the court in giving him credit therefor. Id.

4. PURCHASE OF LANDS BY: WARDS: ELECTION: PRACTICE. An order of the court charging the guardian with the money of his wards who are still minors, invested by him in lands, will not be modified at the re

quest of the guardian, where the wards are not properly before the court. Should they elect, upon arriving at majority, to retain the lands, the charge for money would be wrong, and the rights of the parties can then be determined. Id.

HIGHWAYS.

1. BY PRESCRIPTION: WIDTH OF. The court cannot say, as a matter of law, that a highway acquired by prescription is of any particular width, beyond such portion as is actually used by the public. The width to which the public is entitled is a question for the jury in each case, and is not necessarily the full width of sixty-six feet. Davis v. The City of Clinton, 389.

2. DEDICATION: EVIDENCE: WIDTH. The facts shown by the evidence are not sufficient to constitute a dedication of the highway in question, at the point in dispute, sixty-six feet in width. Id.

3. ESTABLISHED BY USER: NOTICE. A highway cannot be established by user alone, although the owner of the land had knowledge of such use, unless the owner also had express notice that a highway was claimed independent of the mere use. The State v. Mitchell, 567.

See RAILROADs, 8, 9.

TOWNSHIPS, 2, 3.

HOMESTEAD.

1. U. S. RAILROAD GRANT: HOMESTEAD ENTRY. The act of Congress of 1876 is not applicable in this case. The right of the plaintiff did not depend upon the withdrawal of the lands from sale, or notice thereof. After the line of the road was definitely fixed the lands included were not subject to homestead entry, and an enterer could acquire no rights thereby. The B. & M. R. R. Co. v. Lawson, 145.

2. NOT SET OFF: EXECUTION SALE. An execution sale of a large tract of land, including the execution defendant's homestead, which the sheriff failed to have set off prior to the sale, will not be set aside, when it is not shown that the defendant was the owner of the entire premises. Farr v. Reilly et al., 399.

3.

-:-: UNDIVIDED INTEREST.

Where the judgment debtor is occupying as a homestead, premises in which he has an undivded interest only, and a portion of the premises is not exempt from execution sale, it is not the duty of the sheriff to set off the homestead before proceeding to sell on execution. Id.

4. WHEN SET OFF: EXECUTION SALE. The judgment of the court below is affirmed. Following Farr v. Reilly, ante, p. 399. Elder v. Reilly, 403. 5. ABANDONMENT OF: JUDGMENT LIENS. To constitute an abandonment of a homstead, there must exist an intention to abandon, and an abandonment in fact. A citizen and resident of another State cannot have a homestead in Iowa. Where there has been an abandonment of the homestead, the liens and judgments will attach thereto, and a subsequent conveyance of the homestead will not displace such liens. Leonard v. Ingraham & Marshall et al., 406.

6.

BENEFIT OF FAMILY. The fact that the head of the family went to another State for the purpose of establishing a new homestead, and became a resident of such State, will not operate as an abandonment of

7.

the original homestead, so long as the family remain in possession of the same. The homestead exemption is for the benefit of the family. The Savings Bank of Decorah v. Kennedy, 454.

WHAT CONSTITUTES. Where a party removed from his homestead and actually resided for many years in another county, repeatedly exercising the right of suffrage there, and at different times offering his homestead for sale, and no definite and fixed purpose to return and occupy it as a home is shown, it will be regarded as an abandonment of the homestead. Cotton v. Hamil & Co., 594.

See DOWER, 1.

HUSBAND AND WIFE.

1. EARNINGS OF WIFE: HUSBAND'S CREDITORS. The earnings of the wife, unless acquired in carrying on an independent business of her own, cannot be made the basis of a claim against her husband to the prejudice of his creditors. Triplett v. Graham et al., 135.

2. COVENANTS OF DEED: LIABILITY OF WIFE. Where a married woman unites with her husband in the conveyance of lands, owned by her hus band and another, the title to which is not in her name, the law will exonerate her from all liability upon the covenants of the deed. Thompson v. Merrill, 419.

3. POSSESSION OF REAL ESTATE BY: NOTICE OF EQUITIES. The actual possession and occupancy of real property, by a husband and wife together, will impart notice of the wife's equities therein as against all persons other than those claiming under the hushand. The possession of the husband and wife is regarded as joint by reason of the family relation, but this rule as to joint_occupancy will not apply to a son boarding in the family. The Iowa Loan and Trust Co. v. King et al., 598.

See CONVEYANCE, 5.

ESTOPPEL, 2.

FRAUDULENT CONVEYANCE, 6, 9, 10.

INDICTMENT.

1. ALTERATIONS OF: BEFORE RETURNED: NOT VOID. A motion to strike the indictment from the files upon the ground of alleged alterations, where the proof shows the alterations were made before the indictment was returned, was properly overruled. The State v. Hughes, 165.

2. PREFERRED BY WIFE: PRESUMPTION. An averment in an indictment for adultery, that the action was commenced by the wife of the defendant, is not presumptive of its truth, and the fact that it was so commenced must be established by proof. The State v. Henke, 457.

See CRIMINAL LAW, 4, 7, 10, 11, 12, 13, 17.

INTOXICATING LIQUORS, 1.
RECORD, 1.

INJUNCTION.

1. ACTION ON BOND: ATTORNEY'S FEES: EVIDENCE. In the absence of evidence, in an action upon an injunction bond, showing that an injunction was not the only relief sought, it appearing that the dissolution was