1. JUDICIAL

SALE: Vari

Cunningham v. Felker.

erty sold for less than the amount of the judgance between ment. The difference in the amount of costs judgment and writ. is accounted for by adding the clerk's fee for the execution, $1.25, to the $7.15 specified in the judg ment. The only real variance between the judgment and the execution, is fifty cents. As the parties, the date of judgment, the court which rendered it, etc., are accurately stated in the writ, the variance in the particular specified, does not render the sale void, as claimed by the appellant's attorney. In Sprott v. Reid (3 G. Greene, 489), cited by appellant's counsel, the variance was greater than in the present instance, and the sale was nevertheless upheld. See also, Cooley v. Brayton (16 Iowa, 10), and authorities there referred to; and Dean v. Goddard (13 Iowa, 292), and cases cited. The execution in this case sufficiently identifies the judgment to render certain the authority upon which it issued, and is not void.

II. Inadequacy of price.

It is a sufficient answer to this objection to state that there is no evidence whatever in the record respecting the value of the lots.

III. Alleged failure to file transcript of judgment in Hardin county, in compliance with section 3249 of the Revision.

This is answered by the fact, that the record does show that such a transcript was filed in Hardin county on July 30th, 1860, prior to the date of the execution which issued from Johnson county, where the judgment was rendered. In the transcript filed in Hardin county there is no variance whatever between the amount of the judgment rendered in Johnson county and the amount stated in the transcript.

IV. Sale of the lots en masse.

Prima facie the sheriff's return shows this objection to be true in point of fact. There is no evidence to show

26 120 83 745

2.

Thomson v. Wilson.

sale en that the lots were sold for less than their masse delay in attack. value, or that the debtor was injured by the mode of sale adopted. This, and the unexcused delay of nearly six years to institute any proceedings to question the sale, justify the decision of his honor below, denying the relief sought. The plaintiff alleged, but failed to prove, an excuse for this protracted delay.

Applications to set aside judicial sales for mere irregularities, ought not to be unreasonably deferred. Stewart v. Marshall, 4 G. Greene, 75.

In the present case the application was stale, leaving room for the inference of an acquiesence in the sale until a change in the value of the property had occurred.

Affirmed.

THOMSON V. WILSON.

1. Stamps: EVIDENCE. The proper time to raise the objection that an instrument is insufficiently stamped, is when it is offered in evidence; and if the instrument be once admitted without objection it cannot be urged, for the first time, in an instruction to the jury that the instrument is invalid for want of a stamp.

2. Amendment: VARIANCE. An amendment after verdict, and pending a motion in arrest of judgment, curing a variance between the name of defendant, as stated in the petition and as signed to the promissory note upon which suit was brought, was held to have been properly allowed without terms, it appearing that no prejudice to the defendant could have resulted therefrom.

Appeal from Benton District Court.

THURSDAY, DECEMBER 10.

ACTION upon a promissory note alleged in the petition to be lost. Verdict and judgment for plaintiff. Defendant appeals.

Thomson v. Wilson.

1. M. Preston & Son for the appellant.

C. H. Conklin for the appellee.

BECK, J.-I. During the progress of the trial, a witness for defendant produced the note sued on, which the petition averred to be lost. Defendant there

1. STAMPS: evidence.

upon introduced the note in evidence without objection by plaintiff. The defendant asked the court to instruct the jury that, inasmuch as there was no United States revenue stamp upon the note, it was not a valid instrument, and no judgment could be rendered thereon, and that the jury must therefore find for the defendant. This instruction was refused, and the jury were directed that, there being no issue made in the pleadings with reference to the revenue stamp upon the note, it was not a material question for their consideration. These rulings upon instructions are assigned for error.

The note was admitted in evidence without any objection that it was not properly stamped. Being so admitted, the objection could not be raised by an instruction after the cause had gone to the jury. The proper time for such objection is when the instrument is offered in evidence; if made afterward it will not be heard. 2 Parsons on Notes and Bills, Appendix, p. 20; Edwards on the Stamp Act (2d ed. 1863), 235; 3 Parsons on Contracts, 340, 343. II. The note introduced in evidence is signed in the name of "W. R. Wilson." The name of defendant, as it appeared in the pleadings, was "Riley Wilson." The jurat to the answer and amended answers which are sworn to, are signed by defendant in the name of "W. R. Wilson." The defendant moved in arrest of judgment and for a new trial, because of a variance between the evidence and pleadings in the name of defendant. Pending this

2. AMEND

MENT: variance.

26 122 110 634

The State v. Young.

motion plaintiff had leave to amend the petition by inserting the name "W. R. Wilson" as the name of defendant. The motion was overruled and judgment entered upon the verdict, all of which is assigned as error. The amendment was properly allowed by the court. No prejudice resulted to defendant thereby. He appeared to the action and made his defense, and in no way was misled by the misnomer, and could not have been surprised by the amendment. It was properly made without terms. Revision, §§ 2977, 2972, 2973.

Affirmed.

THE STATE V. YOUNG.

Criminal law: MALICIOUSLY THREATENING TO INJURE ANOTHER. Extortion and pecuniary advantage are not necessary ingredients in the offense of maliciously threatening to do an injury to another, with intent, thereby, to compel the person threatened to do an act against his will, under section 4213 of the Revision.

Appeal from Washington District Court.

THURSDAY, DECEMBER 10.

THE defendant was indicted, tried and convicted of the crime of maliciously threatening to injure another, to compel another to do a thing against his will. After verdict, the defendant moved in arrest of judgment, on the ground that the indictment did not charge facts sufficient to constitute any offense. This motion was overruled and judgment and sentence were duly passed upon the defendant. The defendant appeals. The further facts are stated in the opinion.

Lewis & Bennett for the appellant.

H. O'Connor, Attorney-General, for the State.

maliciously

to injure another.

The State v. Young.

COLE, J.-The charging part of the indictment is as follows: "The said Charles Young, at, etc., feloniously CRIMINAL LAW: and maliciously did threaten to shoot one threatening George W. Pressley, then and there being, with intent then and there thereby, by means of said threat, to compel the said George W. Pressley to submit to his person being searched, the same being against the will of him, the said George W. Pressley, and contrary to the form of the statute, in such case made and provided." The section of the statute under which the indictment was found, is as follows: "Sec. 4213 (2590). If any person, either verbally or by any written or printed communication, maliciously threaten to accuse another of a crime or offense, or to do any injury to the person or property of another, with intent thereby to extort any money or pecuniary advantage whatever, or to compel the person so threatened to do any act against his will, he shall be punished by imprisonment in the penitentiary not more than two years, or by fine not exceeding five hundred dollars."

The only question presented for our decision, is as to the sufficiency of the indictment under the statute quoted. The appellant's counsel claim that extortion or pecuniary advantage are the principal and necessary ingredients in the offense, and must be charged in the indictment, or it is bad.

The indictment is sufficient. The statute defines the crimes and prescribes the penalty for the doing of either one of two things: First, to maliciously threaten, etc., with intent to extort money or pecuniary advantage; second, to maliciously threaten, etc., with intent to compel the person threatened to do an act against his will. This indictment charges the latter. For the purpose of showing the true interpretation of the statute and that the offense charged is within it, the section may be read