2. That a continuance as to one of the defendants operated as a continuance as to both; and that judgment could not be rendered for the amount admitted to be due. WRIGHT, J., dissenting. Butler, Keith & Co. v. Mc Call & Sypher, 431.

2. MOTION TO DISSOLVE INJUNCTION. A continuance of a motion to dissolve an injunction is not granted as of course. Taylor et ux. v. Dickinson et al., 484.

See CONSTITUTIONAL LAW, 1, 2 and 3.

CONTRACT.

1. SUBSCRIPTION OF STOCK TO RAILROAD COMPANY: Action to recover on a contract of subscription to the stock of a Railroad Company. The agreement to pay was on conditions as follows: "Provided the town of Fairfield is made a point on said road, and said road is put under contract in one year from the 1st day of September, 1858; provided, also, that said stock is not to be called in faster than five per cent per month on the whole amount, and no installment is to be called in on said stock, until the whole road from Burlington to Fairfield is put under contract, with conditions to be built within twenty months from the time of letting such contract. It was held,

1. That putting the road under contract within the time named, and with the conditions specified, was a condition precedent to the right of the Company to recover on the contract.

2. That a completion of the road by the 1st of September, 1858, without the letting of the contract stipulated in the condition precedent, was not a sufficient compliance to enable the Company to recover on the contract. The Burlington and Missouri River Railroad Company v. Boestler, 555.

2. TIME IN CONDITION PRECEDENT. When the time for the performance of an act or a condition precedent is fixed by the contract, the act or condition must be performed at or within the time. Id.

3. WAIVER: SILENCE. Mere silence, on the part of a party to a contract, amounts to a waiver of the performance of a condition precedent in cases in which such silence is inconsistent with any other explanation. Id.

4. COTEMPORANEOUS AGREEMENTS. Cotemporaneous parol representations cannot be set up as a defense to an action on a contract of subscription to the stock of a railroad company, when it is not shown that they were omitted as conditions in the written contract by some fraud of the plaintiff, or by accident or mistake. Gelpcke, Winslow & Co. v. Blake, 387; Jack v. Naber, 450.

5. CONSTRUCTION OF CONTRACT. While litigation was pending between the Davenport Gas Light and Coke Company and the city of Davenport, to determine the validity of a contract which had been entered into be tween the parties for supplying the public lamps of the city with gas, an agreement was entered into between the parties, whereby it was stipulated, that "said company shall have the privilege of shutting off the gas from the public lamps until the question of the validity of the contract shall be decided by the courts, and no existing right of said company, or of the city shall be prejudiced or affected, but the contract, if now valid, shall be and remain so to the same extent as though said company had not shut off the gas." It was held, that the company was not precluded by the terms of the agreement from recovering against the city the difference between the cost of furnishing the gas and its value according to the terms of the contract, the validity of the

contract having been sustained in said litigation. Davenport Gas Light and Coke Company v. The City of Davenport, 6.

6. SAME: VIOLATION OF CONTRACT. The agreement made pending the litiga. tion did not destroy any right which accrued to either party, by reason of a refusal to perform the contract on the part of the other. Id.

7. PLACE OF CONTRACT. The plaintiff sold and delivered to the defendants, in the city of New York, a stock of intoxicating liquors. A part of the consideration was at the time paid, a part was subsequently paid in Iowa, and the promissory notes in suit for the balance were executed in Iowa. It was held, that the contract of sale was completed in New York, and that the plaintiff should be treated as a foreign vendor. Whitlock v. Workman & Co., 351.

8. CONDITIONAL SALE. When in the sale of personal property there is an express stipulation that the title shall not pass until the price is paid, the vendee takes no title, and a sale, while the property is in his possession, to a third person who has no notice of the stipulation, will convey no title. (Bailey v. Harris, 8 Iowa, 331; Robinson v. Chapline, 9 Iowa, 91); Baker v. Hall et al., 277.

9. CLAIM RIGHT: CONSIDERATION. The transfer of a "claim right" made and held in good faith, between the time of marking and defining its boundaries and making what are styled "improvements," is a sufficient consideration to sustain a promise. Spry v. Sleppy, 409.

10. INDEFINITE AGREEMENT. A general parol agreement to secure a debt, without referring to any specific property, is too indefinite to be specifically enforced, especially when the rights of third persons intervene. Day v. Griffith, 103.

See GUARANTY; TENDER.

COSTS.

1. NON-RESIDENT PLAINTIFF: JUSTICE'S COURT. The provisions of chapter 136 of the Revision of 1860, requiring non-resident plaintiffs, in certain cases, to give security for costs, applies only to proceedings in the District Court. Smith v. Humphrey, 429.

2. RETAXATION OF COSTS. The Supreme Court will not review an order of the District Court overruling a motion to retax costs for certain causes therein stated, when the record does not disclose the facts. Nicking v. Nesmith et al., 595.

See JURISDICTION, 4; PRACTICE, 1.

COURT.

1. CONFLICTING TERMS OF COURT. Where the record shows that a judgment was rendered by the District Court of one county, three days after the date of the commencement of the term in another county in the same district as fixed by statute, it was held that the jurisdiction of the court would be presumed, though it did not appear affirmatively of record that the term as fixed by law had been adjourned. Weaver v. Cooledge, 244.

COUNTY BONDS.

See RAILROADS, 1, 2.

VOL. XV.-78

COVENANT.

1. DEMAND. Where the grantor of real estate conveyed by deed setting out covenants of seisin, of right to convey, against incumbrances, and of warranty, and at the time the legal title was in another who had acquired the same by fraud, it was held:

1. That the covenant was broken at the time of the conveyance; 2. But that the grantee to entitle himself to recover sums expended in proceedings to quiet his title, should have first demanded proceedings of his grantor for that purpose. Yokum v. Thomas, 67.

CRIMINAL LAW.

1. ABORTION. The procuring of an abortion by a married woman upon herself, was not, unless the child was quick, a crime under the Code of 1851; neither is it a crime under the "act for the punishment of foeticide." Laws 1858, chapter 53; Rev. 1860, § 422. Hatfield v. Gano,

177.

2. FALSE PRETENSES. To obtain an indorsement or credit upon a promissory note, is not obtaining property, money or goods within the meaning of the Statute, (Rev. 1860, § 4392.) The State of Iowa v. Moore, 412.

3. ILLEGAL VOTING. Voting in a township of which the voter is not a resident, is an offense under § 4337 of the Revision of 1860. The State of Iowa v. Minnick, 123.

4. PERJURY. An indictment for illegal voting in a township of which the accused was not a resident, is not affected by the fact that he is also liable for perjury. Id.

5. EVIDENCE. The sufficiency of evidence to sustain a verdict of guilty on the trial of an indictment for illegal voting considered. Id.

6. ILLEGAL VOTING: KNOWLEDGE. In the trial of an indictment under § 4337 of the Revision of 1860, for "willfully voting when not a citizen of the United States," the Court did not err in refusing to instruct the jury "that knowledge is not to be presumed in such case, but is to be alleged and proved like any other fact," for the reason that the instruction was not pertinent. The State of Iowa v. Sheeley, 405.

7. ILLEGAL VOTING: EVIDENCE. In the trial of an indictment under § 4337 of the Revision of 1860, for "willfully voting when not a citizen of the United States," evidence that the witness consulted "friends" as to his right to vote, "and was advised by them that such right existed," is inadmissible. It seems that evidence that the defendant had consulted persons learned in the law, and that upon being informed of all the facts, they advised him that he was a legal voter, should be admitted as tending to disprove a criminal intent; but such evidence would not be conclusive. Id.

DECREE.

1. RECITAL IN DECREE. The Supreme Court will not reverse a decree on the ground that the record does not show that evidence was submitted to the Court below, when the decree itself recites that "proofs" were "read in evidence" and considered by the Court. Wahl v. Phillipps, 479.

2. ASSIGNMENT. When, during the pendency of a foreclosure proceeding, the plaintiff sold his interest in the suit to a third party, in whose name, as assignee, the decree was rendered, it was held that the defendant was not prejudiced thereby, and could not complain on appeal. Id.

3. DECREE BY CONSENT. That the report of a master in chancery was confirmed by the Court, the attorneys of the appellant being present and making no objection, is not a sufficient showing that the decrce was entered by consent of parties. Hershee & Huber v. Hershey et al, 185.

4. PRAYER FOR GENERAL RELIEF. Under a prayer for general relief, the complainant may be entitled to a decree consistent with the case made by the allegations of the bill, but not to one including and covering matters not therein referred to, and as to which the respondents have never properly had their day in Court. Wilson v. Horr, 489.

5. POSSESSION. In a foreclosure proceding, it is competent for the Court to make an order for the delivery of the possession of the premises and enforce the same by proper writ. Martin v. Jones & Hildebrand, 240. 6. MODIFICATION OF DECREE: LIMITATION. The power of the District Court to modify a decree of divorce, under § 2537 of the Revision of 1857, is not limited to one year after the entry thereof. Andrews v. Andrews,

424.

See FORECLOSURE, 3; JURISDICTION, 4.

DEED.

1. DEED AS EVIDENCE. The amount named in the deed is only prima facie evidence of the amount actually paid. Lawton et ux. v. Buckingham, 22.

2. ACKNOWLEDGMENT OF DEEDS. A certificate of acknowledgment executed in another State, and appended to a deed conveying lands in this State, to which there is no seal attached by the Court or officer taking the same, nor any certificate, under competent authority, attesting tho official character of such officer, is insufficient under §§ 2245, 2246 of the Revision of 1860. Jones v. Berkshire et al., 248.

3. DELIVERY OF DEED. The delivery of a deed to the recorder for the use and benefit of the grantee, but without his knowledge or consent, does not pass the title to the grantee in such manner as to cut off or displace the rights of an attaching creditor which had intervened when the grantee assented to such delivery. Day v. Griffith, 103.

See ESTOPPEL, 1; NOTICE, 3-13.

DEFAULT.

See PRACTICE, 2-3

DEMAND.

See COVENANT.

DESCENT.

See ALIENS.

DIVORCE.

See DECREE, 6; JURISDICTION, 4.

DUBUQUE.

See MUNICIPAL CORPORATION, 2.

ELECTION.

1. STATUTE CONSTRUED. The provisions of an act approved September 11th, 1862, entitled "an act to amend Title 4 of the Revision of 1860, so as to enable the qualified electors of the State in the military service to vote at certain elections, are not inconsistent with section 1, article 2, of the Constitution of 1857, for the reason that they permit such electors to cast their votes at polls opened and conducted beyond the limits of the county and the State of which they claim to be residents. Morrison v. Springer, 304.

2. RESIDENCE IN A TOWNSHIP. To gain a residence within a township, within the meaning of our election laws, the elector must have the intention bona fide of making it his home. Remaining within the township with the purpose to leave as soon as some temporary object is accomplished does not establish a residence. The State of Iowa v. Minnick, 124.

See CONSTITUTIONAL LAW, 4, 5; JUDICIAL NOTICE.

ERROR.

1. ERROR WITHOUT PREJUDICE. The Supreme Court will not reverse a judgment for an error which worked no prejudice to the appellant. Parsons v. Hedges, 119; Greither v. Alexander, 471; Rock et al. v. Wallace et al., 379; Drath v. Deitz, 437; De Moss v. Haycock, 149.

2. ERROR BY REFEREE. An error committed by a referee, before whom a cause was tried, if corrected by the District Court, is no sufficient cause for the reversal of the judgment by the Supreme Court. Drath v. Deitz, 437.

3. THE TAKING OF DEPOSITIONS TO JURY ROOM. A judgment will not be reversed on the ground that the jury, when they retired to consider upon the verdict, took with them a deposition which had been read in evidence, it appearing that the fact was known to the appellant while the jury were in consultation, and that he made no objection thereto, and that the deposition had been offered by him in evidence on the trial. (Turner v. Kelley, 10 Iowa, 570; Shields v. Guffey, 9 Id., 322.) Davenport v. Cummings, 219.

ESTOPPELS.

1. ESTOPPEL BY RECITALS IN A DEED. A recital in a deed, under which a party claims title, does not estop him from also claiming under an older conveyance or paramount title. Baldwin v. Thompson et al., 504.

See USURY, 5, 7.

EVIDENCE.

I. ADMISSION.

1. ANSWER OF GARNISHEE. An affidavit executed by the plaintiff as an answer in garnishment in another action, is admissible in evidence as an admission made by the party, though not taken in accordance with the provisions of the statute, the genuineness of the signature being first proved or admitted. Davenport v. Cummings, 219.

2. CONVERSATION. If, in a conversation, but a part of which was heard by a witness, the prisoner admits the commission of a crime, the evidence of such conversation is admissible, and its weight will be determined by the jury; and when the crime is of such a character, there can be no