19. EXCEPTION MUST BE SPECIFIC. An exception to an instruction, not shown to have been taken when the instruction was given, and not specifically stated in the motion for a new trial, will be disregarded. Stevens v. Taylor, 664. 20. RULES OF COURT: ABSTRACT. The Supreme Court is not required under section 4538, Code, to examine the transcript in a criminal case, for the purpose of determining whether the verdict is sustained by the evidence, or as to alleged errors in the instructions, where the defendant is represented by counsel, and has made no application to have the rules of court waived, or so modified as to allow him to present an abstract in manuscript. The State v. Day, 678. 21. ASSIGNMENT OF ERROR NOT ARGUED. Where the question raised upon appeal is not argued beyond a mere restatement of the assignment of error, it will not be considered. Kinser v. The Farmers' National Bank of Centerville, 728. See FRAUDULENT CONVEYANCE, 8. INSTRUCTIONS, 9. JURISDICTION, 1. VERDICT, 1. PRESUMPTION. 1. EVIDENCE: DECREE: PRACTICE. It will be presumed in favor of the court's findings, that the lawful evidence authorizing the decree was introduced and considered by the court. Henry v. Evans et al., 560. See BASTARDY, 1. CRIMINAL LAW, 15. STATUTE OF LIMITATIONS, 1. PRINCIPAL AND AGENT. 1. KNOWLEDGE OF MORTGAGE. A party who relied upon another to take a mortgage for him and see that the title to the property was good, made him his agent in respect to that transaction, and knowledge by the agent of a preexisting mortgage would bind the principal. Sowler v. Day et al., 252. 2. SPECIAL AGENT: EXTENT OF POWERS. An agreement made by a special agent, beyond the scope of the agency, will not bind the principal; and it is incumbent upon the party to ascertain the extent of the powers of the agent with whom he deals. Roberts v. Rumley et al., 301. 3. --: UNAUTHORIZED AGREEMENTS: RATIFICATION. The principal is not bound by the unauthorized agreements of a special agent, of which he had no knowledge when he accepted the benefits of the contract made within the scope of the agency, unless he ratifies the same. Id. 4. ACTION BY AGENT TO RECOVER REAL PROPERTY. The mere agent of the owner, appointed by parol to rent and care for real property, is not the trustee of an express trust, and has no such interest in the property as will authorize him to maintain an action in his own name, to recover possession of the property from a claimant under a tax deed. McHenry v. Painter et al., 365. 5. NOTICE TO AGENT: LIABILITY OF PRINCIPAL. Where the agent, who negotiated for the purchase of lands, had notice at the time of certain outstanding leases, the principal will be bound by such notice, and the lessees can enforce their rights against him. Thompson v. Merrill, 419. See INSURANCE, 6. RAILROADS, 12. PROMISE OF MARRIAGE. 1. BREACH OF: PRIVILEGED COMMUNICATIONS. Where a physician, sworn as a witness in an action for damages for the breach of a marriage contract, was asked if the plaintiff had consulted him in respect to "getting rid of a child with which she was pregnant at the time," it was held, there being no showing of an unlawful purpose, that the communication was privileged. Guptill v. Verback, 98. PROMISSORY NOTES. 1. JOINT MAKERS: EVIDENCE OF EXECUTION: RES GESTÆ. In an action upon a promissory note purporting to be executed by two as joint makers, the execution of which was denied by the defendant, evidence of what the other joint maker said at the time he delivered the note to plaintiff, about the signing of the note by defendant, was inadmissible, it being hearsay, and not a part of the res gestæ. Smith v. Wagaman, 11. 2. EVIDENCE: CROSS-EXAMINATION. The plaintiff having testified in regard to what the defendant said when the note was shown him, it was proper upon cross-examination, in order to show that his memory could not be implicitly trusted, to ask him what his business was, and how many notes he had at the time. Id. 3. SURETY: WHEN DISCHARGED: NOTICE. The holder of a promissory note, who has been served with the statutory notice by the surety thereon, must not only direct the institution of a suit upon the note, but must see that suit is actually commenced within the time fixed by statute, or the surety will be discharged. The German-American Bank v. Denmire, 137. 4. UNLAWFUL POSSESSION: ACTION FOR VALUE: EVIDENCE. In an action to recover the value of a promissory note, payable to bearer, of which, as alleged, the defendant had unlawfully obtained possession, the plaintiff must not only prove that the note was his property, but that the defendant's possession was unlawful. It is not necessary for the defendant to set up and prove his title to the note. Gaskell v. Patton, 163. 5. TRANSFERRED AFTER MATURITY. A note transferred after maturity is subject to all the defenses that could be pleaded against the payee. Clute v. Frasier, 268. 6. ALTERATION OF: RENDERS NOTE VOID. An alteration of a promissory note, if material, and if it destroys the identity of the note or changes its legal effect, will render the note void. Held, that where the alteration made the note payable in a county and at a bank different from that contracted for by the parties, without the consent of the payee, the change was material and the note void. Adair et al. v. Egland, 314. 7. CONCEALMENT OF FACTS: RELEASE OF SURETY. Where the maker refused to give a note with a certain person as surety thereon, and the payee afterwards procured the signature of such party as surety, concealing from him the objections made by the maker, such surety will thereby be released from all liability on the note. Conger, Adm'r, v. Bean et al., 321. 8. INDORSER: WAIVER OF DEMAND AND NOTICE. The indorsement of a promissory note in blank, and an oral promise by the indorser to pay the note at maturity, would not constitute a waiver of demand and notice. Isham v. McClure, 515. 9. EXECUTED ON SUNDAY: DEFENSE. The maker of a note purporting to be executed upon a secular day, but in fact executed on Sunday, has no equity existing in his favor as against the payee or a bona fide assignee after maturity. It is only against a person in equal fault that a defendant can be allowed to allege his own turpitude. Leightman v. Kadetska et al., 676. See CONTRACT, 5. GUARRANTY, 1. PUBLIC OFFICER. 1. PUBLIC DUTY: APPROVING BOND: SURETY. A public officer, charged with the duty of approving the bond of another officer, must discharge that duty for the benefit of the public. He is not required to protect the sureties from liability, and a surety on such bond who suffers loss has no remedy against such officer, for the reason that if the officer was negligent he violated a public duty and not a duty owed to the surety. Held v. Bagwell, 139. See BOND, 1, 2. CRIMINAL LAW, 7. QUO WARRANTO, 1. QUO WARRANTO. 1. RIGHT TO OFFICE: EXPIRATION OF TERM. The relator by an action of quo warranto sought to be declared the lawful subdirector of the District Township of Washington, and to oust defendant from the office. No fees attached to the office of subdirector. At the time of trial, the term of office in dispute having expired, the court dismissed the cause. Held, that the action of the court was right. The State ex rel. McNulty v. Porter, 19. RAILROADS. 1. SALE: STOCKHOLDER: VENDOR'S LIEN. Two railroad companies were consolidated, the consolidated company to own all the property and assume all the debts of both companies, and to issue stock to persons entitled thereto in either company. Plaintiff, who was a stockholder in one of the companies prior to the consolidation, and, as such, had an interest in its right of way, which passed to the consolidated company and over which said company operated its road, brought suit upon notes given him by the new company for his interest in the former company, claiming a vendor's lien on such right of way. Held, that these facts did not entitle him to a vendor's lien. Cross v. The B. & S. W. R. Co. et al., 62. 2. U. S. LAND GRANT: WHEN IT ATTACHED: PRE-EMPTION. In an action by plaintiff to recover lands alleged to have been included in its grant, but claimed by defendants under homestead entries, it was held that under the amendatory act of Congress of June, 1864, the grant of 1856, which was a grant in presenti in the nature of a float, was made defi nite and certain by reference to the line of said railroad as then located, and the land granted became susceptible of accurate, certain, and determinate designation; that the entries of the lands in controversy in October, 1864, were not valid, because the grant had already attached to those identical lands; and that the right thus acquired could not be impaired by subsequent legislation, State or national. The B. & M. R. R. Co. v. Lawson, 145. 3. PERSONAL INJURIES: CONTRIBUTORY NEGLIGENCE. The act of the intestate, in going between the cars to uncouple them while they were moving at an improper and unusual rate of speed, but after he had signaled the engineer to slacken speed, was not necessarily contributory negligence. Beems, Adm'r, v. The C., R. I. & P. R. Co., 150. 4. NEGLIGENCE: INSTRUCTION: VARIANCE. Where the petition charged negligence upon the engineer alone, and the instruction stated the cause of complaint was that the "parties in charge of the engine" were negligent, it was held that no possible prejudice could result from such use of the plural number, and that the variance between the petition and the instruction was immaterial. Id. 5. 6. 7. : KNOWLEDGE OF: LIABILITY FOR. The railroad company is liable, notwithstanding the negligence of the intestate, if ordinary care was not exercised by its employes to prevent the accident, after they knew of the intestate's negligence; and as this rule of law is clearly expressed, the form of the instruction is not important. Id. : -: : FOOT CAUGHT. The fact that the intestate's foot was caught between the rails, so that he was fastened to the place and could not have escaped injury if signals had been given, would not excuse the railroad company if its cars were negligently driven over him. Id. -: EVIDENCE: RULES OF THE COMPANY. The rules of the company, requiring engine-men to exercise caution when "backing," and holding them accountable for a violation of the rules, were competent evidence in this case. Id. 8. PROXIMITY TO HIGHWAYS: NEGLIGENCE. The mere fact that a railway is constructed and operated in close proximity to a highway, although it may render the use of the highway less safe, does not of itself constitute negligence on the part of the railway company. Such increase of danger is necessarily incident to, and attendant upon, this improved mode of transportation. Beatty v. The Central Iowa R. Co., 242. 9. : : HIGHWAY CROSSING. Under the facts found in this case, that portion of the highway, from the point where the railroad track first infringes upon the highway to the point of actual crossing, cannot be regarded as a part of the highway crossing. Id. 10. PERSONAL INJURIES: LINE OF EMPLOYMENT. Under the facts of this case, it was held that the jury were warranted in finding that the injury was received by plaintiff in the line of his employment. Ferguson v. The Central Iowa R. Co., 293. 11. : NEGLIGENCE: CUSTOMARY WAY. If the customary and usual way of doing the work of uncoupling cars in the yard was negligent and wrong, although permitted by the company, the plaintiff, who was for the time in command of the train and in part responsible for the custom, cannot be heard to complain. Id. 12. FORCE USED BY AGENT: INSTRUCTION. An instruction as to the degree of force, which an employe of defendant might lawfully use in ejecting an obnoxious person from the station-house, considered and held unobjectionable. Johnson v. The C., R. I. & P. R. Co., 348. 13. OPERATIONS OF: INJUNCTION. The "operations of a railway" as referred to in section 3391, Code, mean the operations of a constructed railway, and not the operations of a railway company in constructing a railroad. Johnston v. The C., M. & St. P. R. Co. et al., 537. 14. POWER TO CONDEMN PROPERTY FOR USE. The statute limits the amount of land, which may be taken by a railroad company under condemnation proceedings, to 100 feet in width, except: First, on account of wood and water stations; Second, where a greater width is necessary for excavation, embankment, or depositing waste earth. Id. 15. INJURY TO STOCK: RUNNING AT LARGE. A sucking colt following its mother, which was in the control of the plaintiff, strayed and was injured by defendant's train. Held, that the colt, under such circumstances, must be demed to have been running at large. Smith v. The K. C., St. J. & C. B. R. Co., 622. 16. 17. 18. — — WILLFUL ACT OF OWNER. The fact that the plaintiff by a voluntary act exposed the colt to danger from defendant's train, if the act was done for a lawful purpose and the danger was merely incidental thereto, does not make the act willful. Id. —————: ———-: DOUBLE DAMAGES: NOTICE OF LOSS: PROOF OF SERVICE: COPIES. Proof of the service of notice and affidavit of loss, to entitle plaintiff to double damages, may be made by copies shown to be correct, without notice to the defendant to produce the originals. Id. ―: DEFECTIVE FENCE: LIABILITY. Where a sufficient fence was erected to keep the cattle from the right of way, and it became defective without the fault of the company, no liability attaches for an injury occuring on account of such defect, unless the company had knowledge, or by the exercise of reasonable care could have learned of the defect, and had reasonable time thereafter to make repairs; and this consideration should have been submitted to the jury. Brentner v. The C., M. & St. P. R. Co., 625. 19. APPROPRIATION OF RIGHT OF WAY: AWARD. An action will not lie upon the award of the sheriff's jury for damages for right of way, unless the right of way has been entered upon and appropriated by the company. Dimmick v. The C. B. & St. L. R. Co., 637. 20. ― WHAT CONSTITUTES: TORT. Where a railway company duly condemned a right of way, which included a portion of plaintiff's lot, and without paying the award entered thereon, but did not actually occupy any portion of plaintiff's property or disturb the fence around it, it was held that the company had not made such an appropriation of the property as to have been guilty of a tort, and that it was not liable to pay the award. Id. 21. : :: ACTS OF APPROPRIATION. The fact that defendant permitted a telegraph company to construct a telegraph line over and across that portion of plaintiff's lot within the right of way, and allowed the return of award to be recorded, did not amount to a tort, or raise an implied contract to pay the award. Id. 22. INJURY TO STOCK: RIGHT TO FENCE: EVIDENCE. In an action against a railway company to recover double damages for stock killed, where it had the right to fence but failed to do so, the testimony of a witness who stated what he had seen and knew in relation to the locality, and the condition of the fence where the stock went upon the railroad track, was not hearsay or based upon the opinions of the witness. Dunn v. The C. & N. W. R. Co., 674. |