involved in an action then pending, to which | pounded to her relative to the said issues she was a party defendant.

Hemenway & Grundy, for petitioner.

joined in said cause." This proceeding is designed to test the validity of that ruling and order.

charge, puts the same in use as having been made in good faith, shall be fined not exceeding one thousand dollars, and imprisoned in the county jail not exceeding one year."

ROBINSON, J. John Smallpage commenced The attorneys for petitioner have made no an action in the district court of Butler coun- argument, but content themselves with sugty, in which the petitioner in this proceeding gesting a few points for the consideration of and one John Mahanke were made parties this court. The questions raised by the sugdefendant. The petition in that action al- gestions of counsel require an examination leges that Small page is the owner of a judg- of the following sections of the Code: "Sec. ment rendered by said district court against 3647. But when the matter sought to be said John Mahanke, on which an execution elicited would tend to render him criminally has been issued and returned unsatisfied, and liable, or to expose him to public ignominy, on which there is due about the sum of $800: he is not compelled to answer, except as prothat before said judgment was rendered said vided in the next section. Sec. 3648. A witJohn Mahanke, being the owner of certain ness may be interrogated as to his previous lands in Butler and Grundy counties, "did conviction for a felony, but no other proof of make a pretended sale and conveyance, by such conviction is competent, except the deeds of the same," to the plaintiff in this record thereof." "Sec. 4074. Any person who action, "with intent to hinder, delay, and de- knowingly, being a party to any conveyance fraud the plaintiff in the collection of his or assignment of any estate or interest in said judgment;" that the plaintiff in this ac-lands, * * * or being a party to any tion "took said deeds of conveyance with the charge on such estate, * * * made or like intent, and without paying therefor any created with intent to defraud prior or subconsideration." The petition prays that the sequent purchasers, or to hinder, delay, or conveyances be set aside, and that the land defraud creditors or other persons, and every therein described be subjected to the pay-person who, being privy to or knowing of ment of said judgment. The plaintiff in this such fraudulent conveyance, assignment, or action, by her answer, admitted the allega- | tions in regard to the judgment, and that the conveyances specified had been made to her, but denied that they were made without consideration, and denied all allegations of fraud. While the action aforesaid was pending, the plaintiff in this action was called before a notary public, and sworn, for the purpose of taking her deposition to sustain the issues on behalf of the plaintiff Smallpage, and was asked the following question: "When did you first know that John Mahanke had made and executed to you deeds of his interest to the land left by Henry Mahanke, being the real estate described in the petition?" Thereupon the witness objected to answering such question, on the ground "that the witness is a defendant in the case; that the only issue In this case, the witness is a party defendin the case is the good faith of the convey- ant called to testify for the plaintiff. She ance made by John Mahanke to the witness, had filed her answer, in which she had deset out in the petition; and the matter sought nied all allegations of fraud, and the law preto be elicited would render the witness liable sumes, in the absence of proof, that there to criminal prosecution;" and "objected to was no fraud in the transactions. The witany further examination concerning issues ness objected to answering, on the ground of in the case upon like grounds." The parties her privilege, but it does not appear that she agreed in writing that plaintiff was seeking understands what answers would tend to rento prove the affirmative allegations relating der her criminally liable. The date of the to the issue, by interrogating Elizabeth Ma- execution and delivery of the deeds is not hanke in regard to the circumstances under shown. It may be that prosecution for the which the deeds were executed by John Ma-crime, if any, involved in their execution hanke to her, the consideration paid by her, etc.; and that a return should be made to the court for its determination as to whether this testimony would be competent under the issue, and whether the witness would be excused, under section 3647 of the Code, from answering such questions. A return was made by the notary of the deposition, objections, and agreement. The district court overruled the objection made by the witness, and ordered that she "answer questions pro

1. It is the duty of the court to determine whether a witness should answer a question propounded, but, if reasonable grounds for believing that the answer would tend to render him criminally liable exist, it should not be required. But the witness cannot claim his privilege on this ground where prosecution for the offense of which he is guilty is barred by the statute. 1 Greenl. Ev. § 451; 2 Phil. Ev. 933, 934; 1 Whart. Ev. §§ 536, 538; 2 Tayl. Ev. § 1457; Calhoun v. Thompson, 56 Ala. 166.

and acceptance, is barred by the statute of limitations. Again, their execution and delivery may have involved a constructive fraud, sufficient to render them invalid as against creditors, but not of such a character as to render the grantee criminally liable. There is nothing in the record, as submitted to us, which overcomes the presumption that, so far as the witness is concerned, the transaction in question involved no criminal liability on her part. She should not be per

mitted to defeat the ends of justice by claiming a privilege to which there is no reasonable grounds for believing her entitled.

Appeal from district court, Dubuque county; C. F. COUCH, Judge.

This is an action by William IIintrager to recover of the defendant Henry Richter and the other defendants, who are sureties upon his official bond as auditor of the city of Dubuque, certain money which came into his hands as such auditor, and which, plaintiff avers, he is rightfully entitled to, and which said Richter refuses to pay to him. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

De Witt C. Cram, for appellant. J.J. McCarthy, City Atty., for appellees.

ROTHROCK, J. It appears from the aver

2. In case the witness has been guilty of a crime within the meaning of section 4074 of the Code, prosecution for which is now barred by the statute, would she be privileged from testifying as to her share in the transactions in controversy, on the ground that her answers would tend to expose her to public ignominy? "Ignominy" is defined to be "public disgrace, infamy, reproach, dishonor." Bouv. As used in our statute, it seems to have a wider meaning than the word "infamy," as formerly used to test the competency of witnesses; but, in our opinion, it was not intended to apply to all acts which might jus-ments of the petition that certain real estate tify public censure or disapproval, but those was sold for city taxes in the year 1876, and of a more serious nature, which would tend that one Bishop was the tax-sale purchaser. to expose the perpetrator to public hatred or A short time after the sale Bishop assigned detestation or dishonor. For example, a the certificate of sale to the plaintiff. The woman cannot be compelled to testify to sex-assignment was placed upon record in the ual intercourse with different men. Brown v. Kingsley, 38 Iowa, 221; Lohman v. People, 1 N. Y. 385. Treason, felony, and offenses founded in fraud, were considered infamous at common law, and persons guilty of any of them were incompetent to testify. 1 Greenl. Ev. § 373. Under our statute, no rule applicable to all cases is possible, but the privilege of the witness must depend largely upon the facts of the transaction which are sought to be shown. It is possible that the circumstances involved in the giving and taking of the deeds in controversy were of such a character as to entitle the witness to the privilege which she claims, but there is nothing in the record to indicate that such is the case. The order of the court of which the witness complains must be understood as requiring her to answer the particular question set out in the record, and such other questions as may be proper. We cannot say that the question shown was improper, nor that the witness should not be further interrogated as to the issues involved in the case. The witness will be entitled to show reasonable grounds for believing that her answer to the question in controversy would tend to render her criminally liable, or expose her to public ignominy. With this modification the order of the district court is affirmed.

HINTRAGER v. RICHTER, Auditor, et al. (Supreme Court of Iowa. Dec. 22, 1888.)

BONDS-LIMITATION OF ACTIONS.

Under Code Iowa, § 2529, requiring an action against an officer on an official liability to be

brought within three years after the cause of action accrues, the statute begins to run against a tax-sale purchaser's action to recover redemption money paid into the auditor's office, which an ordinance directs the auditor to hold subject to the order of the purchaser or his assignee, when the auditor in office receives the money from his predecessor, and not when it is first paid into the of fice. Successive officers are not to be regarded as one and the same person, or as impersonal, except where they stand for and represent the public.

office of the city treasurer, as required by an ordinance of the city. The real estate was redeemed from the sale on the 7th day of May, 1877, by the payment of the sum of $416 to one Brandt, who was then city auditor. Brandt paid over the money to one Riley, who was his successor in office, and Riley paid the money to Richter, the defendant, on May 1, 1887, and he received the same by virtue of his office. The plaintiff demanded the money of Richter on the 6th day of May, 1887, and afterwards, and on the same day, this action was commenced, upon his official bond, to recover the same. The city of Dubuque was organized and has always acted under a special charter, and it was stipulated by the parties hereto that its ordinances, so far as they pertain to tax sales, and redemption therefrom, are substantially the same as sections 887-891 of the Code. The demurrer was upon the ground of the statute of limitations. No question is made as to the plaintiff being the assignee of the original tax-sale purchaser. It is provided in one of the ordinances of the city that tax-sale redemption money shall be held by the auditor subject to the order of the purchaser or his assignee. No question is made that the plaintiff was at one time entitled to the money. But it is contended by counsel for appellee that a cause of action arose therefor on the day the money was paid to the then auditor, and that action therefor was barred in three years from that time, under section 2529 of the Code, which provides that an action against "a public officer, growing out of a liability incurred by the doing of an act in an official capacity, or by the omission of an official duty," shall be brought within three years after the cause of action accrues. On the other hand, it is claimed by the plaintiff that the cause of action accrued when the money was received by Richter, or when the demand for its payment was made of him.

made elaborate arguments upon the question Counsel for the respective parties have of whether the receipt and custody of the

It

money was in the nature of an express trust. | county as being perpetual, and that the same Upon the part of plaintiff it is contended idea of perpetuity pertains to an officer of the that the relation of the parties was that of county, is correct when applied to the facts trustee and cestui que trust, and that the of that case. The case was, in effect, an acstatute of limitations did not commence to tion against the county. But in the case at run until the trust was denied and repu- bar the city has no part in this litigation. diated by the trustee by a refusal to pay the Its records show that this money is in the money on demand. Counsel for defendant hands of Richter, and the assignment of the denies that it was a trust of the character tax-sale certificates, being on record, shows claimed by the plaintiff, and claims that, if that it is payable to the plaintiff's order. It a demand was necessary, it should have been requires no affixing of a seal to a warrant to made and suit brought within the time fixed require the money to be paid. We do not by statute after the plaintiff was entitled to think the cited case is authority for holding the money. It is conceded that as each au- that the claim of the plaintiff to this money is ditor was elected and qualified he received barred by the statute. the money in controversy from his predecessor, and that his official bond bound him to pay the same to the plaintiff if the right of the plaintiff thereto has not been barred by the statute. This is not an obligation against the city. The money has not been covered into the city treasury. The action is not against the city. It is money on deposit, so to speak, with the city auditor, payable on the order of the plaintiff. The defendant, while he admits the receipt of the money from his predecessor, insists that the plaintiff has no right to it, because he failed for more than three years to commence an action against the defendant's predecessor in office. The substance of his claim is not that the money belongs to him nor to the city, but that it is the plaintiff's money, and that he has lost the right to it, and that it belongs to no one. Reliance is had by defendant upon the case of Prescott v. Gonser, 34 Iowa, 175. In that case the clerk of the board of supervisors issued a county warrant in pursuance of an order of the board, but neglected to place the seal of the county thereon. It was held that the statute of limitations would commence to run in favor of the officer and his successor for their omission to perform an official act from the time of the omission, and not from the time of a demand upon the officer to supply the omission. The action was mandamus, to compel the successor in office of the clerk, who omitted to do the official act, to affix the seal. It was insisted in that case that the right of action did not accrue until a demand was made that the seal be affixed, and a refusal. This claim was answered by the court by holding that it is not the policy of the law to permit a party to defeat the operation of the statute by neglect ing to do some act which devolves upon him in order to perfect his remedy against another. But this was a question which did not necessarily arise in the case. It was the omission of the clerk to affix the seal which operated as a breach of his official bond. It was, in the language of the statute, an "omission of an official duty." The statute commenced to run at once. That suit was, in effect, a proceeding against the county. It was to compel one of its officers to affix the seal to the warrant to enable the plaintiff to draw money from the county treasurer. That part of the opinion which alludes to the

In Beecher v. Clay Co., 52 Iowa, 140, 2 N. W Rep. 1037, the plaintiff, by mandamus, sought to compel the board of supervisors to refund certain illegal taxes which the plaintiff had paid into the county treasury. was held (following the case of Callanan v. County of Madison, 45 Iowa, 561,) that the cause of action accrued when the taxes were paid, and that the plaintiff could not delay the operation of the statute of limitations by neglecting to demand of the board an order for the refunding of the taxes. That was also an action against the county. The law required the board of supervisors to make an order directing the treasurer to refund the money. Code, § 870. It was a claim against the county, which required the action of the board of supervisors the same as any other claim, and no suit could be maintained until the claim was presented to the board, as in Baker v. Johnson Co., 33 Iowa, 151, and other cases, which hold that a party cannot, by his own neglect or laches, arrest the operation of the statute of limitations. The same principle is to be found in the case of Lower v. Miller, 66 Iowa, 408, 23 N. W. Rep. 897. That was an action upon the official bond of a sheriff for failing to pay over to the plaintiff certain money which was deposited with him, as sheriff, in certain proceedings by which land was condemned for a railroad right of way. It was held that the action was barred by the statute of limitations because it was not brought within three years after the plaintiff was entitled to the money. The case was not disposed of upon a demurrer. There was a trial on the merits, and it appeared that the sheriff was elected his own successor, and the action was brought upon the last official bond. The action was a personal action against the sheriff. It was not brought within three years from the time it accrued against him. The facts are altogether different in the case at bar. The defendant Richter received this money, and receipted for it, but a short time before the action was commenced. He received it as the money of the plaintiff, and his failure to pay it over was a failure to perform an official duty. No right of action accrued against him until he received the money, and he cannot, after receiving it as belonging to the plaintiff, set up that the plaintiff had no right to it because such right was lost by his

failure to commence an action against some | the corporation was not in fact in existence. one of the defendant's predecessors. The de- Counsel's position, expressed in their own fendant is liable for the money which comes language, is this: "It was not in law a corinto his hands, and cannot avail himself of poration until its required capital stock was the defense based upon the statute of limita- subscribed." The ready answer to this obtions until the right of action against him is jection is found in the statute. The purbarred. It is a mistake to consider these suc- poses and objects of an incorporation is to cessive auditors as one and the same person, clothe persons who associate themselves toor as impersonal. They are to be so treated gether for that purpose with authority and when they stand for and represent the city, power to do lawful business as an individual. as where the city is sought to be made liable Code, § 1058. It is enacted that an incorby proceedings against its officers by man- poration may commence business as soon as damus or the like. its articles of incorporation are filed in the recorder's office. Id. § 1064. The corporation may then lawfully commence business, -that is, exercise its corporate authority and power, when its articles of incorporation are

We think the demurrer to the petition should have been overruled. Reversed.

JOHNSON et al. v. KESSLER, County Treas-filed. Nowhere is there an intimation in the

urer, et al.

(Supreme Court of Iowa. Dec. 22, 1888.) RAILROAD COMPANIES-MUNICIPAL AID ESTOPPEL. 1. In the absence of any statute or anything in the articles of incorporation of a railroad company providing that the company shall not begin business until all its required capital stock shall be subscribed, the company is authorized to begin business as soon as its articles of incorporation are filed in the recorder's office, as provided by Code Iowa, § 1064.

2. Under Acts 20th Gen. Assem. Iowa, c. 159, § 3, authorizing the tax in aid of the Waverly ShortLine Railroad Company, which provides that "it shall be the duty of the trustee of such township to immediately give notice of a special election by publication in some newspaper published in said township, if any be published therein, and, if not, by posting copies of said notice in five public places in said township, at least 10 days before said election," notice by publication in a newspaper 10 days before election is not required. 3. The failure of a railroad company to perform its part of a contract as to the time of the completion of its road will not release stockholders from their subscription.

then

4. Where a railroad company expends large sums in the construction of a railroad, tax-payers, having before the completion of the road made no objection, are estopped to deny the validity of the tax. Appeal from district court, Bremer county; J. B. CLELAND, Judge.

statute that this authority and power cannot be exercised until all of its stock has been subscribed. There is nothing in the articles of incorporation of the railroad company to which the aid was voted, providing that the company shall not begin business until a prescribed amount of stock shall have been subscribed. Railway Co. v. Preston, 35 Iowa, 115, cited by plaintiffs' counsel, interprets the power of an Illinois corporation, in the absence of any statute similar to our own authorizing corporations to commence business upon filing articles of incorporation, or upon the happening of any other prescribed

event.

2. It is insisted that the tax is void for the reason that the notice of election was not published in a newspaper for 10 days; but the statute prescribed no time during which the publication shall be so made. It prescribes that "immediately" after the petition is filed the publication shall be made in the newspapers. The township trustees, in the exercise of their discretion, may select the newspapers in which the notice shall be published. This is to be done immediately, but of course the time of the publication will deAction in chancery to restrain the collec-pend upon the day of issue of the paper. It tion of a tax voted by the electors of a town- is very plain that the statute does not require ship in aid of the construction of a railroad. the newspaper publication to be made 10 days Upon a trial on the merits plaintiffs' peti- before the election. tion was dismissed. They now appeal to this court. Acts 20th Gen. Assem. c. 159, § 3, is as follows: "It shall be the duty of the trustees of such township to immediately give notice of a special election by publication in some newspaper published in said township, if any be published therein, and, if not, then in some newspaper published in the county, if any such there be, and also by posting copies of said notice in five public places in said township at least ten days before said election."

Boies, Husted & Boies, for appellants. Gibson & Dawson, for appellees.

BECK, J. 1. Counsel for plaintiffs insist that the tax voted is void for the reason that as the stock authorized by the articles of incorporation of the company to whom the tax was voted was not all subscribed or taken,

3. It is insisted that the company did not comply with the conditions of the notice, and complete the railroad in the time therein prescribed; but it cannot be claimed that the failure of the corporation to perform its contract as to the time of the completion of the road will release stockholders from their subscription. Counsel insist that plaintiffs and other tax-payers are to be regarded as stockholders, or rather that a municipality subscribing upon a vote of the people is to be regarded as a stockholder. Of course the plaintiffs stand before this court with the same and no other rights than those possessed by the township, were it a party to the suit. See Courtright v. Deeds, 37 Iowa, 511.

4. This court has held by a majority opinion that when a railroad company expends large sums in the construction of a railroad,

2