|

37. Under Code Iowa, § 2742, requiring the evi-303. dence in an equitable action to be certified by the judge at any time within the time allowed for an appeal, and made a part of the record, where the translation of the short-hand reporter's notes in such action is not filed, though certified by the judge, within six months, (the time allowed by section 3173 for an appeal,) the evidence will not be considered on appeal.-Kavalier v. Machula, (Iowa,) 590; Thomas v. McDaneld, (Iowa,) 592. 38. The evidence taken down by a short-hand reporter does not become a part of the record until his notes, together with a translation, are deposited with the clerk, and the evidence duly certified by the judge. Harrison v. Snair, (Iowa,) 315.

39. Though the appellant's abstract is not denied by an amended abstract, yet, where the appellee files a certificate of the clerk that no translation of the short-hand notes has been filed in his office, that answers for an amended abstract.-Id.

late, when first made in the supreme court.-San- that a verdict in favor of plaintiff could not be
ger v. Freie Presse Co., (Wis.) 436.

Presumptions.

58.

61. Where the abstract on appeal does not pur-
port to set out all the record necessary to a review
of the rulings, and the appellee denies that it
shows all that occurred, it will be presumed that
the rulings were correct.-Brown v Long, (Iowa,)
62. Where the abstract does not purport to pre-
sent all the instructions given, but instructions
added to those found would present fully and cor-
rectly the law applicable to the case, it will be pre-
sumed that full and correct instructions were
given.-Fernbach v. City of Waterloo, (Iowa,) 370.
63. The verdict of a jury was set aside and a new
trial granted upon the motion of the losing party,
which motion was based on a number of assign-
ments, among which were misconduct of the ju-
rors, and that the verdict was not sustained by
sufficient evidence. In the absence of a bill of ex-
ceptions, showing what the evidence was, it is pre-
sumed that the decision of the court in granting a
new trial was correct, the journal entry not show-
ing the reasons for which the verdict was set
aside.-Latham v. Schaal, (Neb.) 354.

64. When the tax-roll is offered in evidence by
plaintiff in an action to enjoin the collection of
taxes, solely for the purpose of showing the
changes made by the board of review, it will not
be presumed, on appeal, in its absence from the
record, that it showed the invalidity of a certain
school tax.-Canfield v. Bayfield County, (Wis.)

437.

65. Where it is contended on appeal that a party
is a minor, and that no relief should be granted as
against him, not having made defense by guard-
ian, but there are no averments in the pleadings,
or competent proof in the record, that he is a minor,
it will be presumed that he is of age, and compe-
tent to make his own defense.-Kavalier v. Ma-
chula, (Iowa,) 590.

66. Where a party is permitted to introduce evi-
dence after having rested, and before argument
to the jury, the statute permitting such a course
in case of oversight, the appellate court, in the ab-
sence of proof to the contrary, will presume that
such oversight existed. - Randolf v. Town of
Bloomfield, (Iowa,) 562.

Weight and sufficiency of evidence.

67. Findings of fact by a court will not be set
aside unless they are so much against the proof as
to raise a presumption of passion or prejudice.-
British Amer. Assur. Co. v. Neil, (Iowa,) 382.

68. The supreme court will not set aside a ver-
dict where the evidence is conflicting; the parties
testifying against each other.-Rogers v. Winch,
(Iowa,) 214.

69. Conflicting evidence and questions of the
number and credit of the witnesses are for the

jury, and not for the court of review.-Angle v.
Bilby, (Neb.) 397.

70. An objection that the verdict is not sustained
by the evidence cannot be considered unless all
the evidence submitted to the jury is made a part
of the record, and contained in the bill of excep-
tions.-Chamberlain v. Brown, (Neb.) 284.

71. Though the proof of an occurrence rests en-
tirely on the testimony of one witness, and other
witnesses having equal opportunities and motives
for observation say that they did not see it, yet,
the first witness not having been directly im-
peached, and no motive being shown for false
swearing, the court, on appeal, cannot say that the
jury erred in believing him, or the court below in
refusing a new trial.-Pielke v. Chicago, M. & St.
P. Ry. Co., (Dak.) 669.

72. Plaintiff sued defendants for money collected
by them as her attorneys. Defendants pleaded a
counter-claim and balance due them for services
and moneys expended. Plaintiff introduced an
account rendered by defendants after their last
charge for services, showing a balance due by
them to plaintiff, which a witness for plaintiff
testified was given to him by defendants as a full
statement of account, which defendants denied.
Held, that there was such a conflict of evidence

disturbed.-Martin v. Hammond, (Iowa,) 619.

73. Though the creditor of a mortgagor, who
took a note in settlement of an action against the
mortgagor, without knowledge of the existence of
a chattel mortgage withheld from record at the
signed by others as well as by the mortgagor, yet,
mortgagor's request, required the note to be
he having testified that he relied upon the property
court in accordance with such testimony is con-
of the mortgagor to pay it, the finding of the trial
clusive.-Sanger v. Freie Presse Co., (Wis.) 436.
74. In a suit to cancel a mortgage as void for us-
ury, and as having been paid, the burden of proof
is on the plaintiff, and the finding of the court in
favor of defendant on conflicting evidence will not
be disturbed.-Bishop v Corbitt, (Minn.) 1030.
Rulings on evidence.

75. The decision of a trial court on a case includ-
ing material evidence improperly received, cannot
be sustained on a statement of the court that, even
without such evidence, his decision would have
been the same.-Farmers' Union Elevator Co. v.
Syndicate Ins. Co., (Minn.) 547, 548.

76. Objections to evidence in a suit in equity
will not be considered, where the other evidence in
the case is sufficient to support the decree.-Bird
v. Pope, (Mich.) 514.

77. When a cause is tried by the court without a
a jury, the judgment will not be reversed on the
ground of the admission of immaterial or incom-
petent evidence, if sufficient proper evidence was
admitted to sustain the finding.-Richardson v.
Matters not apparent on record.
Doty, (Neb.) 282.

78. In the absence of a copy of the will in ne
bill of exceptions, the supreme court cannt say
whether the property was improvidently distrib-
uted; and, owing to such absence, it cannot be pre-
sumed that the district court erred in excluding
the evidence as to the financial condition of some
who would naturally be the recipients of the
bounty of the testator.-Latham v. Schaal, (Neb.)
354.

79. Instructions given and refused cannot be
considered unless certified in the transcript by the
clerk of the district court.-Chamberlain v. Brown,
(Neb.) 284.

80. An order setting aside so much of a judg-
ment in favor of a landlord as establishes a lien
on certain personal property, which would be ex-
empt from execution but for an agreement of the
tenant, will not be disturbed on appeal, where
none of the evidence is set out in the record, and
the findings of the court do not show that the
property upon which the lien was given was the
identical property upon which the tenant agreed
to give a special lien.-Read v. Divilbliss, (Iowa,)
580.

81. Where, on trial, it is stipulated that either
party may read in evidence the testimony of any
witnesses he pleases, as such testimony is printed
for use on appeal in another designated case, but
the record on appeal does not show what portion,
if any, of such testimony was read, objections that
the findings of the trial court are not supported
by the evidence cannot be considered.-Hoffman
v. Churchill, (Mich.) 907.
Harmless error.

82. An instruction on a question of contributory
negligence, of which there is no evidence, does no
harm to defendant.-Weiden v. Brush Electric
Light Co., (Mich.) 269.

83. Where evidence is introduced without objec-
tion, a party cannot predicate error thereon; and
the same rule will apply if a party excepts to the
introduction of certain evidence, and afterwards
introduces the evidence objected to, or that of a
like character.-Chicago, K. & N. Ry. Co. v.
Wiebe, (Neb.) 297.

84. An instruction in a party's favor is not
ground for reversing a judgment against him.-
Chamberlain v. Brown, (Neb.) 284; Chicago, K. &
N. Ry. Co. v. Wiebe, (Neb.) 297.

85. When on a trial to a jury immaterial ques-
tions for special findings are submitted at the re-

or unfair dealing, is binding on the contractor.Rens v. City of Grand Rapids, (Mich.) 263.

2. Where it was agreed in a lease that the yearly rent was to be 5 per cent. of the value of the premises as appraised by referees chosen by the parties, a great difference between the value so appraised and the value as found by a court or jury is not, of itself, a reason for setting aside the appraisal.-Goddard v. King, (Minn.) 659.

3. That an award of arbitrators upon a commonlaw arbitration is clearly wrong, while it may be evidence entitled to greater or less weight, according to the extent and effect of the apparent error, and the other circumstances of the case in support of the charge of fraud or partiality on the part of the arbitrators, is not conclusive evidence of it.-Id.

4. If the arbitrators decide the matter honestly and fairly according to their judgments, the award will not be set aside because they decided the facts erroneously, or were mistaken in the law they applied to them, or decided on an erroneous theory. -Id.

ASSAULT AND BATTERY Assault-Definition.

3. The only way in which the assignee for the benefit of creditors may avoid the judgment or lien is by action under Laws Minn. 1881, c. 148, § 4, providing for the avoidance, by action of the assignee, of conveyances and payments made and securities given by any insolvent debtor, or debtor in contemplation of insolvency, within four months of his making an assignment.-Id.

4. As Laws Minn. 1881, c. 148, contains no provision under which the assignee or receiver may sell the property free from incumbrances, and distribute the proceeds to those entitled, first to lienholders according to their priorities, and then to the general creditors, nor anything whereby the lienholder may foreclose his lien in the insolvency proceeding, he may, unless his lien is impeached as provided in section 4, proceed and enforce his lien just as though there had been but a commonlaw assignment.-Id.

Associations.

See Benevolent Societies; Corporations; Relig ious Societies.

ASSUMPSIT.

Services rendered.

"Pine Lake," 100 cords of wood, and load it on the 1. Where plaintiff agrees to cut and deliver, on scows of defendant company, he cannot, after pilment and acceptance by defendant, sue on the coming the wood on the beach, but before measuremon counts in assumpsit for the agreed price.Lloyd v. Pine Lake Iron Co., (Mich.) 867.

1. The court charged that defendant might be convicted of assault, which was defined as "an attempt, or offer, by force and violence, to do a corporal injury to another. " Held that, though the definition was too broad, in that it included a case of self-defense, yet, the evidence not being brought up, it will be presumed that there was no evidence of self-defense, and that the definition was correct as adapted to the evidence.-State v. Wyatt,lected and not paid over, where defendants inter(Iowa,) 31.

See, also, Insolvency.

2. In an action against attorneys for money col

pose a counter-claim for services rendered, an instruction that, before defendants could recover against plaintiff for services rendered another, it must appear that plaintiff had assumed the payment thereof for some consideration, or had voluntarily paid the same, is correct.-Martin v. Hammond, (Iowa,) 619.

3. An instruction that defendants must establish any items of their counter-claim which are contradicted, by a clear preponderance of evidence, is correct. Id.

4. In an action to recover for services which defendant admitted were worth $16 per month, if kept house for defendant, and cooked in his resthere was a contract, it appeared that plaintiff taurant for five years. Defendant paid her at various times $240. Held sufficient evidence of a contract.-Mader v. Maurer, (Neb.) 637. Money paid.

5. One count alleged the purchase of a horse by plaintiff from defendant, on the latter's promise to repay the purchase price on return of the horse if he proved unsound; that he proved unsound, and

By defendant, effect on action, see Abatement was returned to defendant, who received him, and and Revival, 2.

Validity.

refused to repay. A second count alleged the payment of the price, setting up defendant's representations that the horse was "sound and unblem

1. An assignment provided that the assignee ished" as inducing the purchase, and alleged that should pay over to the creditors, under the direc-by reason of a disease affecting the horse at the tion of the court, "a pro rata share to each, equal time of the sale, which defendant knew, he became in amount due them, at the same rate per cent., if worthless, and that he was returned to defendant, less than the full sum due them, or to each of who refused to repay the price, as he had promised. them." It was further provided that, if any cred-Held, that the two counts were not inconsistent, itor should not receive the full sum due him, the receipt of any just pro rata share of the amount due should be deemed a satisfaction of the demand, and so by him accepted. Held, that such an assignment was void on its face, as providing that creditors should accept a pro rata share of their claims in full satisfaction.-Sperry v Gallaher, (Iowa,) 586.

Liens on property.

2. Appellant recovered and docketed judgment against the insolvent, December 9, 1887. February 15, 1888, the insolvent assigned for the benefit of its creditors under Laws Minn. 1881, c. 148. Held, that the assignment did not affect the judgment, nor its lien on real estate. In re Church & Graves Manuf'g Co., (Minn.) 241.

each stating a cause of action in assumpsit,-the first for breach of warranty, and the second for money paid without consideration,-the averments as to return of the horse being immaterial and surplusage.-Murphy v. McGraw, (Mich.) 917.

6. The declaration alleging that plaintiff had paid a certain sum for the horse, and that he was absolutely worthless, plaintiff can recover the price paid on the common counts for money had and received.-Id.

7. Plaintiff may also recover costs of transportation of the horse, his keeping, and medical treatment, on a declaration containing the common counts, under which he files a bill of particulars setting out these items, and claiming a recovery thereon, though the declaration itself contains no allegation of such items.-Id.

Money had and received.

8. The refusal of a tenant in common of crops to recognize the rights of his co-tenant therein amounts to a conversion, and the co-tenant may waive the tort, and bring assumpsit.-Loomis v. O'Neal, (Mich.) 701.

9. A complaint alleged that plaintiff delivered to a railroad company property owned by himself and another, consigned in plaintiff's name, with his co-owner's consent, to defendant, who was to sell the same, and account to plaintiff for the proceeds; that before the property started plaintiff agreed to sell it to H. on payment of the cost, $900, and $25 more from the proceeds, but that plaintiff was to remain the owner until paid, and that it should go forward as then consigned, and that H. should receive from the proceeds only the excess over the cost and $25; that H., without plaintiff's or his co-owner's knowledge, procured his name to be substituted as consignor; that defendant received and sold the property for $824 net, and previously had full notice of plaintiff's rights, but converted the value to his own use, and refused to account to plaintiff or his co-owner, though demand had been made, claiming to retain them for a debt against H., not incurred by reason of the shipment in the latter's name, from which he had suffered no damage; and that the co-owner assigned all his interest to plaintiff. Held, that it stated a cause of action.-Potter v. Van Norman, (Wis.) 524.

10. The allegation that plaintiff demanded of defendant the value before the latter's receipt or sale of the property, but defendant had unlawfully, without plaintiff's consent, converted to his own use the aforesaid value, and refused to account therefor, though due demand had been made, the prayer for judgment being for $824, and interest, does not make the action one in tort for conversion.-Id.

the money of plaintiff, is to be taken as a circum-
stance against defendant.-Id.
Demand.

15. Where village authorities pay into the county treasury money of the village on an agreement cause of action to recover it accrues to the village with the county commissioners which is void, a without any demand.-Village of Glencoe v. County Commissioners, (Minn.) 239.

ment, 1.

ATTACHMENT.

See, also, Garnishment.
Judgment in action begun by attachment, see Judg-
Jurisdiction by, see Courts, 2, 3.
Personal service, see Logs and Logging, 3.
Grounds-Fraud.

1. Gen. St. Minn. 1878, c. 66, § 147, allowing a writ of attachment where plaintiff shall make an affidavit "specifying the amount of the claim and the ground thereof, and that the plaintiff's debt was fraudulently contracted," held, that attachment might issue where the affidavit showed that defendant had embezzled the money of plaintiff to recover which the action was brought.-Cole v. Aune, (Minn.) 934.

2. Where a professional person is employed to render service in the line of his profession, and the testimony, when construed most strongly against him, tends to show mere negligence in performing the same, from which his employer suffers damage, an attachment will not lie against the property of the employé in an action to recover such damages on the ground that he had fraudulently contracted the debt.-Rawlins v. Powers, (Neb.) 651.

4. One of such mortgages being given for an amount actually due the mortgagee, and an additional sum composed of the aggregate of a number of small debts to different persons, which the mortgagee agrees in writing to discharge from the proceeds of the mortgaged goods, it is proper to instruct that the question for the jury was whether the transaction was intended by the debtor in good faith to pay just debts, which would be lawful, or to keep the property from his creditors for himself, in which case it would be fraudulent.-Id.

3. It is not evidence of a debtor's intent to de11. Plaintiff alleged that he had borrowed of de- fraud his creditor that he refuses to give him sefendant about $700, and given a note for the nomi-curity for his debt, and gives mortgages on his nal sum of $1,150; that said loan of $700 was re- property to secure other bona fide creditors, and newed from time to time, in such nominal sums as to secure a sum borrowed after said creditor had defendant demanded, and that the last of these re- threatened suit, which sum is used in the payment newals was for $1,537.66, and for security a real- of other debts.-Ray v. Gore, (Mich.) 329. estate mortgage and a chattel mortgage were given by plaintiff; that when said sum was due, defendant, under pretense of sale under said chattel mortgage, sold the chattels, obtaining the sum of about $44.30 in cash, and notes of purchasers, in the sum of about $772.05, all of which belonged to the plaintiff, and defendant then and there converted the same to his own use; that afterwards defendant foreclosed the real-estate mortgage, taking judgment by default for $1,106.34, with $46.68 attorney's fees, and $9.30 costs, or more than the only loan, and the only sum ever received, towit, $700, with interest, attorney's fees, and costs, and has sold said mortgaged premises, and has bought the same in payment for said judgment and accruing costs, and yet keeps the proceeds of the said chattel mortgage sale in the sum of about $816.33, and has converted the same to his own use, to the damage of plaintiff the sum thereof, with interest, for all of which plaintiff demands judgment. Held, that the petition stated a cause of action, and was not demurrable, as being brought to recover for usury paid, nor as showing a former adjudication of the matter in the foreclosure proceedings.-Diamond v. Jones, (Iowa,) 60.

5. One B. owed plaintiff $700, to secure the payment of which he gave him a chattel mortgage on the stock of goods in his store, conditioned to pay the debt on or before February 13, 1888. On January 19, 1888, plaintiff took possession by virtue of the mortgage, and later B. gave him a bill of sale of the entire stock, including fixtures and furniture, the bill stating that it was made in payment of the debt. On the same day defendant, as sheriff, at the instance of creditors of B. attached the goods, on the theory that the bill of sale was fraudulent and void, or, if otherwise, that it was taken as an additional security to the mortgage, and that there was a surplus of property subject to attachment. Held, that these were all questions of fact for the jury, and their verdict thereon for plaintiff would not be disturbed.-Heaton v. Nelson, (Mich.) 595.

Levy and lien.

6. Where a sheriff levies an attachment on personalty, other attachments may be levied on the same property, subject to the prior levy, so long as he retains possession of the property; and if the levy is not wrongful, a lien will be created, to the extent of the amount represented by the attachments. But if, after such levy, the property is taken from his possession, in replevin, and he receives other orders of attachment, no lien will be created upon the property thereby.—Merrill v. Wedgwood, (Neb.) 149.