4. EVIDENCE OF: PRACTICE IN THE SUPREME COURT. Evidence, that a party went east" and resided there several years, is not sufficient to establish that by going "east" he went out of the State so that the statute of limitations ceased to run in his favor. This court will not presume a state of facts upon which to base the reversal of a cause. Tremaine v. Weatherby et al., 615.

5.

COLOR OF TITLE. To constitute color of title it is not necessary that the title under which a party claims should be a valid one; and where a party pre-empted the land, paid for it, claimed to own it by virtue of a swamp land deed from the county, and paid taxes on it, this was a sufficient claim of right, or color of title, to enable him to interpose the statute of limitations. Id.

6. CONTINUOUS, OPEN ACCOUNT: ASSIGNMENT OF. Under the facts of this case it was held, that the account sued on was a continuous, open, current account, and was not barred by the statute of limitations; and that an assignment of the account upon the retirement of one partner, to the partner who continued the business of the firm, did not close the account or constitute it a chose in action. Keller v. Jackson, 629.

7. DISCOVERY OF MISTAKE: EVIDENCE of TIME. Where the oral testimony of the party, by a reference to dates and known facts, fixed the time of the discovery of the mistake in the description of the property in the title bond within five years before the commenement of the action for relief, and the general statement of his deposition made the time more than five years, the court did not err in holding that relief was not barred by the statute of limitations. Eggspieller v. Nockles, 649.

See EQUITY, 4.

POSSESSION, 2.

TAX SALE, 3, 4.
TOWNSHIPS, 1.

SURETY.

Where a

1. PAYMENT BY: ASSIGNMENT OF JUDGMENT: SUBROGATION. surety pays a judgment rendered against himself and principal, he becomes, in equity, subrogated to all the rights of the creditor, and is entitled to an assignment of the judgment to himself or to another for his benefit, and may enforce, as against the principal, all liens, priorities, and means of compelling payment held by the creditors. Searing v. Berry et al., 20. : —————: TRUSTEE. Where a judgment paid by the surety is assigned without consideration to another for the benefit of the surety, such assignee holds the legal title as trustee for the surety, and the law regards him as the real party in interst, entitled to enforce the collection of the judgment. Id.

2.

:

3. PAYMENT OF JUDGMENT BY: PRESUMPTION. Where a surety paid a judgment against himself and principal, and received the assignment of the same, and the amount paid is not shown, it will be presumed that he paid the full sum due at the time, and that the payment was made on the day that the assignment bears date. Id.

4. WHEN NOT DISCHARGED: LIEN LOST. Where the holder of negotiable paper, who has a lien upon personal property for security, but is charged with no responsibility for its custody or care, fails to enforce his lien and the security is lost, such failure cannot be set up as a matter of defense by a surety or grantor. Fuller et al. v. Tomlinson Bros., 111.

5. LIABILITY OF: DEFALCATION OF PUBLIC OFFICER: BOND: JUDGMENT. The surety cannot be held liable for the defalcation of a public officer, which occurred prior to the execution of the bond sued on, nor be bound by a judgment therefor if not a party to the action. Held v. Bagwell, 139.

See BOND, 1, 2, 3.

PROMISSORY NOTES, 3, 7.

PUBLIC OFFICER, 1.

TAXES.

1. IN AID OF RAILROADS: EXTENT OF POWER. The aggregate amount of tax that can be voted and levied by a township, incorporated town or city, in aid of railroads, under chapter 123, acts Sixteenth General Assembly, is five per centum of the assessed value of the property therein; and when that amount has once been voted, levied and collected, the power conferred by the act is exhausted. Dumphy v. The Supervisors of Humboldt County, 273.

2. ILLEGAL INCREASE OF. The action of the board of supervisors, in increasing the assessment of property in a certain township, being illegal, conferred no authority upon the treasurer to collect the increased amount added to the taxes by such action, and such taxes were erroneous and illegal. Dickey v. The County of Polk, 237.

3.

: ERRONEOUS: ACTION TO RECOVER. Where erroneous and illegal taxes, which could not have been lawfully enforced, have been paid by the tax payer, he may maintain an action against the county, under section 870 of the Code, to recover the same; and his failure to pursue other remedies to defeat the collection will not constitute a waiver of his right of recovery. Id.

TAX SALE.

1. REDEMPTION: TAX FOR PREVIOUS YEARS. To entitle the owner of real property sold for taxes to redeem, he will not be required to pay the amount of the tax paid by the purchaser, with penalties, interest and costs, for any year or years previous to that for which the sale was made. Sheppard et al. v. Clark et al., 371.

2. REDEMPTION: DEED: WHEN EXECUTED.

A party has ninety days after the filing of an affidavit of the service of notice, required by section 894, Code, within which to redeem lands from tax sale; and a tax deed, executed prior to the expiration of such period after the affidavit is filed, is invalid. Surope v. Prior et al., 412.

3. DEED: STATUTE OF LIMITATIONS: POSSESSION. The fact, that the tax deed was executed and recorded more than five years prior to the commencement of the suit, will not bar the introduction of the deed in evidence, unless the party setting up the bar also shows that the owner of the land was in possession when the five years expired. Monk v. Corbin, 503.

4.

:

: SALE FOR GROSS SUM. The fact that a tax deed shows upon its face that several tracts of land were sold for a gross sum, will not render the tax title invalid after the expiration of five years from the date of sale. Id.

See TENANT IN COMMON, 1.

TENANT IN COMMON.

1. MORTGAGE SALE: TAX DEED: REDEMPTION. Where the widow executed a mortgage upon the homestead and other property, which was a lien upon the share inherited by her from a deceased child, and the mortgage was foreclosed, the purchaser at the mortgage sale thereby became a tenant in common with the other heirs, and could not thereafter acquire a tax title to the prejudice of his co-tenants; and an intervenor who held such interests by a quitclaim deed would have no greater rights, and could not complain of the order allowing the heirs to redeem from the tax title by paying the amount necessary therefor with six per cent interest thereon. Conn v. Conn et al., 747.

TORT.

1. ACTION FOUNDED UPON: BILL OF PARTICULARS. In an action to recover money alleged to have been fraudulently secreted and kept, and for expense, trouble and inconvenience caused thereby, it was held that the action was founded upon a tort; that section 2713, Code, was not applicable; and that a motion based on said section, to compel plaintiff to attach a bill of particulars to his petition, was properly overruled. McDonald v. Barnhill, 669.

TOWNSHIPS.

1. TREASURER: CONTRACTS BY: STATUTE OF LIMITATIONS.

The treasurer

of a district township has no authority to bind the township by his contract or admissions, and his indorsement of payment upon a township warrant, within ten years, would not defeat the operation of the statute of limitations. Carpenter v. The District Township of Union, 335.

2. PURCHASE OF MACHINERY FOR WORKING HIGHWAYS: SETTING APART TAX. The township trustees have no authority to purchase tools and machinery for working highways upon credit, to be paid for out of the levies of future years, and in advance of the levying and setting apart of the tax for that purpose. The levying and setting apart of the tax must precede the purchase. Wells v. Grubb et al., 384.

3. PURCHASE OF MACHINERY FOR WORKING HIGHWAYS. The township trustees have no authority to purchase tools and machinery for working highways, and thereby create a debt to be paid out of the levies of future years. Following Wells v. Grubb, ante, p. 384. Hanks et al. v. North et al., 396.

See STATUTE OF LIMITATIONS, 2.

TAXES, 1.

TRIAL DE NOVO.

1. PRACTICE: EVIDENCE PRESERVED. Where a cause was tried in the court below, without objection or exception, as an action in chancery, and all the evidence offered and admitted is preserved, it must be tried de novo in this court as an equity cause. Clute v. Frasier, 268.

TRUSTS AND TRUSTEES.

1. INDEBTEDNESS: SETTLEMENT. Matters of indebtedness, growing out of relations of trust and confidence, are subject to adjustment by a settlement made by the parties the same as claims arising in other transac tions. Clute v. Fraiser, 268.

GARNISHMENT. Where a person

2. MORTGAGE OF TRUST PROPERTY: holding property in trust for the payment of a certain judgment, mortgaged it upon his own account, and afterwards sold the property and paid the mortgage, leaving a balance in his hands, it was held that he should have applied the proceeds of the mortgage to reimburse himself for the taxes which he had paid; and that upon garnishment proceedings in satisfaction of the judgment, he was liable for the full amount in his hands without allowance for the taxes paid by him. Briggs v. Wilder, 311. See FRAUDULENT CONVEYANCE, 2.

PRINCIPAL AND AGENT, 4.

WILL, 1.

USURY.

1. JUDGMENT BY CONFESSION: PRESUMPTION. The existence of usury in the note will not alone authorize the conclusion, that the judgment by confession was rendered for the purpose of evading the law against usury. Kendig v. Marble, 529.

2.

MORTGAGE. The defense of usury cannot be pleaded against a mortgage, which exists to secure the debt, for which a judgment by confession has been entered. Id.

3 CONTRACT FOR: APPLICATION OF PAYMENTS: NATIONAL BANKS. The plaintiff borrowed large sums of money, at various times, of the defendant, a national bank, contracting to pay usurious interest therefor, and from time to time deposited money in payment. Occasional settlements were had, at which times the payments were deducted from the amount of the principal and interest then due, and new notes were given for the balances so found. Subsequent to final settlement, plaintiff brought suit under the national banking act to recover double the amount of the usurious interest paid within two years, Held:

1. That, in the absence of an agreement that the payments should be applied first in the discharge of the interest, the defendants could not so apply them.

2. That the usurious transaction must be held to have occurred, when the usurious interest sought to be recovered was paid.

3. That, under the facts of the case and the rules of law, the payments must be held to have been applied pro rata to the principal and interest due at the time, unless there was an agreement to apply them first upon the interest, and that the burden was upon the defendant to establish such an agreement. Kinser v. The Farmers' National Bank of Centerville, 728.

VENDOR AND VENDEE.

1. LIEN OF VENDOR: WAIVER OF: BURDEN OF PROOF. The acceptance of a mortgage on other property for the balance of the unpaid purchase money, by the vendor of real estate, is presumptive evidence of a waiver of the vendor's lien, and casts upon the vendor the burden of rebutting the presumption arising therefrom, and of showing that no waiver was intended. Gnash v. George et al., 492.

2.

: FRAUDULENT REPRESENTATIONS. Where the vendor testifies that he never waived his vendor's lien, he cannot obtain relief upon the ground that he waived the lien relying upon the false and fraudulent representations of the vendee, that he had money in bank to pay for the property when the notes became due. Id.

VENUE.

1. MOTION FOR CHANGE OF: AFFIDAVIT: WHEN SUFFICIENT. A motion for a change of venue, upon the ground of the undue influence of a party or his attorney, made by two or tnore, is not sufficient, unless it appears that neither of the affiants is related nearer than the fourth degree to either of the persons making the motion. Fairburn v. Goldsmith et al., 339.

2. RAILROADS: CONTRACT: MECHANIC'S LIEN. Where the subcontractor was entitled to a mechanic's lien for work done in the construction of a railway, it was held, that if the contractors had entered into an agreement by which they became personally liable to pay his claim, such contract was one in relation to the construction of a railway under section 2583, Code; and that the contractors were not entitied to a change of venue to the county of their residence. Vaughn v. Smith & Co. et al., 553.

3. AFFIDAVIT: BY WHOM MADE. An application for a change of venue by a party, upon the ground of the alleged prejudice of the inhabitants of the county, must, if the party is a natural person, be verified by himself. Hedge v. Gibson, 656.

4. CHANGE OF: COSTS OF FORMER TERM. The action of the court in making the change of venue conditional upon the payment of all the costs accrued up to the time the order was made, including the costs of a former term, not caused or rendered useless by the change, and in refusing to grant the change without the payment of all said costs, was error. Bannigan v. The Central Iowa R. Co., 671.

See JURISDICTION, 1, 3.

VERDICT.

1. PREJUDICE: PRACTICE. The verdict having been rendered upon the first count of the petition, the defendant could not have been prejudiced by erroneous rulings relating exclusively to the second count, and such errors, if any, will not be considered. Jenks v. The Knott's Mexican Silver Mining Co., 549.

WAGER.

1. UPON AN ELECTION: JUROR DISQUALIFIED. In a certain contested election case, one of the jurors at the trial on appeal in the Circuit Courthad, prior to the election, made a small bet upon the result, and the bet became by agreement a wager upon the ultimate result of the trial. These facts he failed to disclose when questioned as to his qualifications as a juror. Held, that the juror was thereby disqualified, and that the verdict, returned in favor of the party upon whose success the juror had wagered, should be set aside. Seaton v. Swem, 41.

See CONTRACT, 6.

WAIVER.

1. OF DEMAND AND NOTICE: PROMISSORY NOTES: ACTS OF INDORSER. Where the indorser before the maturity of the note insisted upon and aided in the collection of the interest from the maker, the indorsee not having been misled or prejudiced thereby, it was held that such acts did not constitute a waiver of demand and notice. Isham v. McClure, 515.

See GRAND JURY, 1.

LEASE, 1.

PLEADING, 9.

VENDOR AND VENDEE, 1.