PLEADINGS.

1. SEVERAL COUNTS. The setting up of different causes of action growing out of the same transaction in separate counts is not prohibited by § 2934 of the Revision of 1860. Camp v. Wilson, 225.

2. DUPLICITY: ELECTION. A party pleading double has the right, under § 2903 of the Revision of 1860, to elect to rely upon one of two causes of action set out and have the others stricken out, or to redivide the count or division complained of; and an order of the court, directing a party to stand upon one cause of action set out in one count of the petition and strike out the others, without giving him the alternative to redivide, was erroneous. Cracraft v. Cochran, 301.

3. PETITION TO CANCEL CONVEYANCE. In a proceeding to cancel a conveyance, it is sufficient to aver facts showing a right to that relief, without setting out the prior history of the title. Wilson v. Miller and Beeson,

111.

4. PLEADING BEFORE A JUSTICE. Technical precision in stating a cause of action or defense is not required in a Justice's Court. (Wright v. Phillips, 2 G. Greene, 191; Taylor v. Barbour, Id., 350; Packer v. Cockyane, 3 Id., 111; Benton v. Hill, 4 Id., 379; Hall v. Monahan, 1 Iowa, 554.) Greff v. Blake, 222.

5. EVIDENCE: IMPLIED DENIAL. Under § 2917 of the Revision of 1860, the allegation of new matter in an answer, not in the nature of a cross action, is to be deemed, without a replication, as controverted by a general denial or by matter in avoidance; and under an issue thus joined, the plaintiff may prove facts not set out in the pleadings, but which would tend to obviate or avoid the legal effect of the special matter set out in the answer. Davenport Savings Fund and Loan Association v. The North American Fire Insurance Company, 74.

6. GENERAL DENIAL AND SET-OFF. That a set-off is pleaded with a general denial in an answer, but in a separate and distinct division thereof, is not a valid ground of objection to the pleading or to evidence offered to sustain the same. Pike v. King, 49.

7. CAUSE OF ACTION: DEMURRER. The petition in an action to set aside a sale of real estate, made by an administrator, under the provision of the Revised Statutes of 1843, alleged that the sale was not public, and that it was void because tainted with fraud and collusion between the administrator and the purchaser; and the probate records relating to such sale were inconsistent and contradictory, as to the manner in which it was made. Held: That a demurrer to the petition should have been overruled. Van Horne v. Ford, 578.

8. AMENDMENT: ADDITIONAL COUNT. An amendment to a petition by the addition of another count will not be regarded as the commencement of a new action, where it appears on the face of the petition as amended, that the cause of action stated in the new count is upon the same state of facts on which the cause of action stated in the original petition is based. Mather v. Butler County, 59.

9. SURPLUSAGE. When a party is sued in autre droit and it appears, from the allegations of the plaintiff, that the defendant is liable in his own right, the words "Executor, &c.," will be treated as surplusage, or as descriptio persona; but when it appears from the record that they were not so treated by the parties, or either of them, in the court below, it will not be so considered on the hearing of the same cause on appeal in the Supreme Court. Laverty v. Woodward, 7.

10. SUPPLEMENTAL PLEADING. A supplemental pleading, setting out notes,
which constitute a part of the transaction, which is the basis of the
bill, and which matured after the filing of the same, is unnecessary,
where the bill is so framed as to seek a remedy on all notes which
should mature before final decree. Whiting v. Eichelberger et al., 422.
See ACTION OF RIGHT; DEFAULT; EVIDENCE, 15.

PLEDGE.

See EXECUTION, 3; FRAUD, 2.

PRACTICE.

1. CRIMINAL CAUSES. Where one of two defendants in a criminal action
pleaded a former conviction, and the other a former acquittal, and the
issues joined thereon were found against them, it was held, that the
Court did not err in proceeding to judgment without another trial on
the question of guilt. The State of Iowa v. Green and Mann, 239.
2. GENERAL EXCEPTION TO INSTRUCTION. A general exception to several
instructions given, raises no question for review in the Supreme Court,
unless all of the instructions are erroneous. Lyon v. Thompson, 62.

3. ISSUES MAY BE WITHHELD FROM A JURY. Whenever the essential ele-
ments of a cause of action or a defense are without proof, the court
should refuse to allow it to go to the jury. Allen v. Pegram et al., 163.
4. EXCEPTIONS. The Supreme Court will not pass upon the rulings of the
court below, on a question of law, when neither party has taken any
exception thereto. Davenport Savings Fund and Loan Association v.
The North American Fire Insurance Company, 74.

5. ORDINARY AND EQUITABLE ACTIONS. That the petition in an "ordinary"
action constitutes proper grounds for an "equitable" proceeding is
not sufficient ground of demurrer. The cause may be placed on the
proper docket by motion. Conyngham v. Smith et al., 471.

6. METHOD OF TRIAL: EQUITABLE ACTIONS. A proceeding to revive a mort-
gage which the mortgagee had been induced to surrender by the false
representations of the mortgagor, and to foreclose the same, is an
equitable action, triable by the first method. Henderson v. Legg
et al., 484.

7. METHOD OF TRIAL. When an equitable defense is set up to an action for
the recovery of real property, the issue should be tried as in equitable
proceedings, by the first or second method, according to its class. If
the equitable defense be found insufficient, the legal issues, if any
remain, should be tried by a jury, unless a jury be waived. If the
equitable defense be found sufficient, the court, in a proper case made,
may grant complete relief. Kramer v. Conger, 434.

8. METHOD OF TRIAL. When equitable issues are joined in an ordinary pro-
ceeding to recover the possession of real property, they are triable by
the first method prescribed by § 2617, Rev. 1860-that is upon writ-
ten evidence in the District Court, and in the Supreme Court, de novo
upon the law, and the facts, as the same appear of record. Van Orman
V. Spafford, Clark & Co., 186.

9. TRIAL OF LEGAL AND EQUITABLE ISSUES. When, in an action to recover
the possession of real estate by ordinary proceeding, both legal and
equitable issues are joined, the equitable issues should be first tried.

If found for the defendant, they dispose of the case at law; if found against the defendant, the legal issues should then be tried. In the absence of any legal issues, the equitable ones must be determined before any judgment is rendered for want of a defense at law. Id.

10. TRIAL ON APPEAL: BILL OF EXCEPTION. When the appeal in such a cause is from the judgment on the issues of law, the Supreme Court will regard no evidence which is not presented by being embodied in or sufficiently identified by a bill of exceptions. Id.

11. AMENDMENTS. The right to amend a pleading is not an absolute, unconditional right, but is to be allowed in "furtherance of justice" under a sound judicial discretion. Brockman v. Berryhill, 183.

12. AMENDMENTS: TERMS. The terms upon which amendments shall be allowed are left to the discretion of the court below. Id.

13. AMENDMENT: ERROR WITHOUT PREJUDICE. When the plaintiff, after the testimony and arguments were closed, asked leave to amend his petition, so as to have it conform more fully with the testimony, which was refused by the Court, but the case was submitted to the jury, upon the theory that the proposed amendment was immaterial, and the plaintiff had the full benefit of the facts, without amendment, it was held that the plaintiff was not prejudiced, and the refusal did not constitute sufficient ground for reversal. Allison et al. v. Barrett, 278. 14. NOTICE OF MOTION. The Court will not pass upon the rights of a party under a motion filed after judgment and execution, when he has not been served with notice thereof. Jensen et al. v. Woodbury et al., 515.

15. CASE MODIFIED. The conclusion of the court in Sypher v. McHenry, 12 Iowa, 585, is approved; but the correctness of some suggestions therein made in reference to practice, under the Revision of 1860, is doubted. Rosierz v. Van Dam, 175.

16. OBJECTION TO EVIDENCE: WHEN MADE. When the record of an equitable cause, tried by the first method, is imperfect, because it does not embrace all of the evidence, the objections should be made before the hearing. Ticonic Bank v. Harvey et al., 141.

17. EXCEPTIONS. As to exceptions to the ruling of the court below, see Mc Carty v. Densmore, 588. As to exceptions to a ruling upon demurrer, see Brown v. Webster, 587.

See APPEAL, 3, 4; BILLS OF EXCEPTION; BILL OF REVIEW; BOND, 7, 8; DEFAULT; DEFENSE; NEW TRIAL; RAILROADS, 7.

PRESUMPTIONS.

1. IN ABSENCE OF EVIDENCE. When the evidence is not all embraced in the record, it will be presumed that it was sufficient to sustain the verdict. Latham v. Brown et al., 118.

2. ON APPEAL. The Supreme Court will not disturb an order of the Court below overruling a motion for judgment based upon a prior order of the Court, which does not appear in the record. The County of Mahaska v. Ingalls, 80.

See DECREE, 2, 3.

PRINCIPAL AND AGENT.

1. AGENT RESPONSIBLE WHEN ACTING FOR CORPORATION NOT EXISTING. When the grantors in a deed purport to execute a deed containing covenants as the officers and agents of a banking corporation which has no legal existence, they are personally liable under the covenants of the deed. Allen v. Pegram, 163.

2. RATIFICATION. A principal who wishes to avail himself of the act of an agent, without authority, must ratify all his acts as such; but the acts of an agent, within the scope of the specific and limited powers with which he is vested, are valid, and are not affected by unauthorized acts. Davenport Savings Fund and Loan Association v. The North American Fire Insurance Company, 74.

3. EVIDENCE. The authority of an agent may be shown by parol evidence, except in special cases. Lyons v. Thompson, 62.

See EVIDENCE, 16.

PROMISSORY NOTE.

1. PAYABLE IN PROPERTY. To discharge the obligation of the maker of a promissory note, payable in property at a specified time, he must either pay the same, or tender or set apart the same for the use of the payee at the time and place named; but a demand of the property by the payee, after maturity, operates as a waiver of the former default made by the maker, and affords a second opportunity to discharge the note by payment in property, or by setting the same apart. (Following Games v. Manning, 2 G. Greene, 251.) The State of Iowa v. Shupe, 36. 2. PRESUMPTION AGAINST. A mere lapse of five years' time after the maturity of a promissory note does not, in the absence of other circumstances, raise a presumption that it has been paid, or that the debt, " of which it is the evidence, never had an existence. Nash v. Gibson, 305.

3. TRANSFER: NOTICE. The valid transfer of a promissory note, with notice to the maker, imposes upon the latter an equitable obligation to pay the assiguee; and though not sufficient to support an implied assumpsit, upon which an action could be maintained, is a sufficient consideration to support an express promise. Allison v. Barrett et al., 278.

4. ASSIGNMENT. When the payee of a promissory note assigned the same while it was in the hands of his agent, and gave an order to the assignee, drawn on the agent, directing the latter to deliver the same to the former, but no transfer was indorsed on the note, it was held, that the assignee could maintain an action thereon in his own name. Id.

5. LEVY UPON. The sale of a promissory note under execution transfers to the purchaser only the interest of the execution defendant therein at the time of the levy of the execution thereon. Id.

See GARNISHMENT.

RAILROADS.

1. DOUBLE DAMAGES: CONSTITUTIONAL LAW. Section 6, chapter 169, Laws of 1862, is not inconsistent with section 6, article 1 of the Constitution of 1857. The Legislature has the power to fix the consequences attending the failure of a railroad company to pay the simple or actual value of property injured or destroyed, as contemplated by the statute. Jones v. The Galena and Chicago Union Railroad Company, 6.

2. SAME. It is competent for the Legislature to tax the property of railroad companies through their gross earnings, in the manner prescribed by chapter 173 of the Laws of 1852. Per LowE, J., in The City of Davenport v. The Mississippi and Missouri Railroad Company, 348.

3. TAXATION. Section 16 of chapter 173 of the Laws of 1862, is constitutional and valid, and prescribes the only method and purposes by and for which the property of a railroad corporation may be taxed. It does not confer upon municipal corporations the power to tax either the real or personal property or the gross earnings of railroads for general municipal revenue purposes; neither does it abridge the powers, when conferred on such corporations by their charters, to assess special charges against particular property for the construction of sidewalks or other improvements intended for local benefit rather than general convenience. Id.

4. POWER TO TAX REAL PROPERTY. Under section 1, article 5 of the charter, and chapter 45 of the Revision of 1860, the municipal corporation of Davenport has the power to levy taxes upon the real estate of railroad corporations, when such property is situated within its own limits. This right is not affected by section 16, chapter 173, Laws of 1862, as that act was not intended to have any application to municipal corporations. Per DILLON, J., WRIGHT, Ch. J., concurring, in Same Case. 5. POWER OF TAXATION. The power of taxation has its foundation in the Legislature; and the power to tax the property of a railroad corporation, by an assessment of its value, or otherwise than in the manner prescribed by section 462, Code of 1851, or chapter 173, Laws of 1862, has never been conferred by legislative authority. Without a grant of power by the Legislature, a municipal corporation cannot levy taxes on such property. Per COLE, J., in Same Case.

6. RAILROADS: MUNICIPAL POWER OF TAXATION. The city of Davenport has no power, under section 1, article 5, of its charter, to levy taxes for municipal purposes upon the rolling stock of a railroad company, which has its principal place of business and a portion of its road within the corporate limits of said city, such rolling stock being used by the corporation along the line of the road beyond as well as within the limits of the city: Per CURIAM in Same Case.

7. COURT DIVIDED. The Supreme Court being equally divided upon the question as to the power of the city of Davenport to levy taxes upon the real property of a railroad corporation situated within its limits, the judgment of the court below stands affirmed by operation of law. Id.

See CONSTITUTIONAL LAW.

RECEIVER.

1. RECEIVER: FORECLOSURE OF MORTGAGE. The appointment of a receiver to take charge of mortgaged property after a final decree in foreclosure, is unusual, and, if allowable, should be supported by a strong showing of facts: Per CURIAM, in Adair v. Wright, 385.

2. SAME. Where the evidence showed that the mortgaged property was not going to waste or in need of repairs, but that it was in a comparatively good state of preservation, it was held that the order appointing a receiver, should be vacated. Id.

3. APPOINTMENT OF A RECEIVER: SOLDIERS' CONTINUANCE ACT. When the defendant in a foreclosure proceeding is in the military service of