3. VACATION OF TOWN PLATS: TAXES. Under section 6, chapter 78,
Laws of 1862, the vacation of any part of a town or city plat, or
addition thereto, does not impair the liability of such plat, or part
thereof, for its portion of any existing debts which may have been
incurred by the corporation. Deeds v. Sanborn, 419.
4. TAXATION OF AGRICULTURAL LANDS. Lands lying within the limits
of an addition to a city, which are used for agricultural purposes,
which are remote from the city proper, and to or near which no
streets or alleys have ever been worked, are not liable to taxation
for city purposes. Id.
5. INDEBTEDNESS: TAXATION: MANDAMUS. Where the ordinary ex-
penses of carrying on the government of a municipal corporation
require all of the proceeds arising from a tax, which is the full limit
the corporation is authorized to levy, it cannot be compelled to apply
a part of such fund to the payment of a judgment held by a creditor
against it. Coffin v. The City of Davenport, 515.
6. But if it be shown that the valuation and assessment of property
within the corporation is purposely made too low in order to avoid
the payment of its outstanding indebtedness, it will be compelled
by mandamus to make a fair assessment of the property, and
apply in payment of such judgment, of the proceeds arising from
the maximum tax levied thereon, such overplus as may remain
after deducting the amount required for the current expenses of
the municipal government. Id.
DISCRETION. Where the plaintiff obtains relief in part, though he fails
as to the main ground, an order of the District Court that defend-
ant pay his own costs will not be disturbed. Burton v. Mason, 392.
CORPORATION MUNICIPAL, 1.
HIGHWAY, 6, 7, 8.
1. TESTIMONY OF ACCOMPLICE: DEGREE OF CORROBORATION. The
corroboration of the testimony of an accomplice to warrant a con-
viction, under section 4102 of the Revision, must not merely relate
to the commission of the offense or the circumstances thereof, but
must tend to connect the defendant with the commission of the
criminal act. The facts which were, under this rule held sufficient
in the present case, stated by DILLON, Ch. J. The State v. Thorn-
ton, 79.
2. 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. The State v. Young, 122.
3. FALSE PRETENSES. An indictment for obtaining property or money
under false pretenses cannot be predicated upon representations
which are mere matters of opinion. The State v. Webb, 262.
4. The indictment should also clearly state that the money or property
was obtained by means of false representations or pretenses. Id.
5. TESTIMONY OF ACCOMPLICE: CORROBORATION. An accomplice can-
not be corroborated in his testimony against the defendant, by the
failure of the latter to introduce the testimony of witnesses
present at the trial, who, if the testimony of the accomplice had
been false, might have contradicted him. The State v. Hull, 292.
6. The accused, in such case, has the right to stand upon the law (Rev.
§ 4102) requiring the testimony of the accomplice to be corroborated
by "other evidence;" and no basis for a presumption in favor of
the accomplice's testimony, can arise from the failure of the defend-
ant to controvert it. Lynch law proceedings severely condemned
by DILLON, Ch. J. Id.
7. EVIDENCE. The minutes of testimony taken by the justice upon the
preliminary examination, as prescribed in section 4593 of the
Revision, are not conclusive when introduced by the defendant on
his trial in the District Court, as to what the witnesses testified to
upon such examination. Id.
8. APPEAL BY THE STATE. When a defendant has been tried and
acquitted before a justice of the peace for an offense within the
jurisdiction of that officer to try, he cannot again be tried upon an
appeal by the State to the District Court. The State v. Van Houton,
402.
9. CONSTITUTIONAL LAW: TWICE IN JEOPARDY. So much of section
5094 of the Revision as undertakes to give to the State the right of
appeal, and to retry the party charged, after acquittal, is invalid as
being in conflict with the constitutional prohibition that "no per-
son shall, after acquittal, be tried for the same offense." Id.
10. FORGERY. The false making or materially altering, with intent to
defraud, of any writing which, if genuine, might apparently be
of legal efficacy or the foundation of a legal liability, is forgery.
The State v. Johnson & Johnson, 407.
11. INDICTMENT IN FORGERY. While in an indictment for forgery it is
necessary to set out a copy of the instrument, it need not be pre-
faced by any technical form of words to express that it is so set
out; and the words "of the purport and effect following," are suffi-
cient, at least under our statute. Id.
12. ANIMAL SCALP BOUNTY CERTIFICATE. The certificate of a justice of
the peace authenticating the presentation and counting of gopher
scalps for which a bounty has been offered by the board of super-
visors, which is to be received by the board as legal proof of such
counting, for the purpose of issuing warrants to pay the bounty
claimed, is the subject of forgery. Id.
13. FORGERY OF INSTRUMENTS WANTING LEGAL EFFICACY. While
there can be no forgery of an instrument invalid upon its face, yet,
on the other hand, it is not necessary that it should have actual
legal efficacy, and it is sufficient that, if genuine, it might have
such apparent efficacy. Although its invalidity might be estab-
lished by extrinsic facts it may, nevertheless, be capable of effect-
ing a fraud, and is the subject of forgery. Id.
14. FALSE PRETENSES. Our statute (Rev. § 4394) has changed the com-
mon law rule as to cheats, and thereunder any person who design-
edly, by false pretense, and with intent to defraud, obtains any
money or property from another, may be convicted of obtaining
money under false pretenses, though no false token affecting the
public was used. The State v. Reidel, 430.
15. EVIDENCE: RIGHT OF DEFENDANT TO BE CONFRONTED BY WITNES-
SES. The defendant in a criminal prosecution has a right to be con-
fronted by the witnesses against him and see them face to face. Id.
16. RULE APPLIED: NOTARIAL PROTEST. In a prosecution for obtaining
money under false pretenses consisting in representations by the
defendant that he had money on deposit in a bank in another State,
upon which he drew drafts and placed them in the hands of a local
bank to be forwarded for collection, the notarial certificate of pro-
test of the notary who protested the drafts thus drawn is not admis-
sible in evidence against the defendant for the purpose of showing
that he had no money on deposit in the bank upon which the drafts
were drawn. Id.
17. STATUTE CONSTRUED. The statutory provision (Rev. § 4011) respect-
ing the effect of the certificate of protest of a notary in evidence,
relates to civil cases only. Id.
18. ERROR WITHOUT PREJUDICE. Where it is possible that a verdict
of guilty was produced by the erroneous reception of evidence,
and erroneous rulings in respect thereto, the Supreme Court will
not undertake to say that it was error without prejudice, but will
reverse and remand the cause for a new trial. Id.
19. INDICTMENT FOR ASSAULT WITH INTENT TO COMMIT AN OFFENSE.
In an indictment for an assault with intent to commit an offense,
it is not necessary to make all the averments required in an indict-
ment for the offense itself. The State v. Newberry, 467.
20. It was accordingly held, that in an indictment for an assault with
intent to commit murder, it was not necessary to aver that the
assault was made with malice aforethought. Id.
1. MEASURE OF: PUNITIVE DAMAGES. Punitive damages may be
allowed in a civil action for a wrongful act, although such act con-
stitutes an offense punishable under the criminal statutes. Follow-
ing Hendrickson v. Kingsbury, 21 Iowa, 379; Garland v. Whole-
ham, 185.
2. RAILROAD: EVIDENCE OF PLAINTIFF'S CONDITION. In an action
against a railroad company by an employee for injuries resulting
from the alleged negligence of the company or a co-employee, the
plaintiff was allowed to prove that he had no means to subsist
upon, and that he was entirely dependent upon his labor for sup-
port. This evidence is admissible as tending to show the nature
of his business and the value of his services. Hunt v. The Chicago
& N. W. R. R. Co., 363.
3. ABILITY OF DEFENDANT TO PAY. The jury, however, cannot take
into consideration the ability of the defendant to pay, for the pur-
pose of increasing the damages, in the absence of bad motive or
any fact to entitle the plaintiff to exemplary damages. Id.
4. Whether this could be done in a case where plaintiff was entitled to
exemplary damages, quere? Id.
1. PRESUMPTION OF FROM ABSENCE. The death of an absent person
may be presumed in less than seven years from the date of the last
intelligence from him, from facts and circumstances other than
those showing his exposure to danger which probably resulted in
his death. Tiedale v. The Connecticut Mutual Life Insurance Com-
pany, 170.
2. PRESUMPTION, FROM CIRCUMSTANCES, COMBINED WITH ABSENCE.
Evidence of character, habits, domestic relations, and the like,
making the abandonment of home and family improbable, and
showing a want of all those motives which can be supposed to
influence men to such acts, may be sufficient to raise the presump
tion of death, or from which the death of one absent and unheard
from, may be inferred, without regard to the duration of such
absence. Id.
3. PRESUMPTION FROM LETTERS OF ADMINISTRATION. The granting
of letters of administration is prima facie evidence of the death of
the party upon whose estate they are issued. But the presumption
of death raised thereby is weak and inconclusive, and may be
rebutted by slight evidence. Id.
1. WHEN TOO GENERAL. A demurrer to a petition on the ground that
it does not state facts sufficient to constitute a cause of action, is
insufficient. Singer v. Cavers, 178.
2. SUSTAINING OF GENERAL ONE. The sustaining of a general demur-
rer to the whole of a petition, one count of which is well stated, is
erroneous. Id.
3. CAUSE. A demurrer based upon a ground not included in the enu-
meration of causes contained in section 2876 of the Revision,
should be overruled. Orman v. Orman, 361.
4. PLEADING OVER: WAIVER. An erroneous ruling in the sustaining
of a demurrer to an answer, is waived by pleading over in an
amended answer. The Heirs of Klein v. Argenbright, 493.
5. PRACTICE. That an allegation respecting the cause of action is
stated in the alternative, is not a cause of demurrer. The remedy
is by motion, under section 2918 or 2934 of the Revision. Turner
v. First National Bank of Keokuk, 562.
6. WAIVER OF. A demurrer to a pleading is waived by pleading over,
and going to trial on the merits. Hull & Co. v. Alexander, 569.
See LIMITATION, STATUTE OF, 1.
PARTIES, 4.
PRACTICE, 10.
FROM HUSBAND DYING WITHOUT ISSUE. The widow of a husband
dying without issue, is entitled to but one-half of the real estate
left by the deceased, other than the homestead. Dodds et al. v.
Dodds, 311.
OF CATTLE DAMAGE FEASANT: BY AGENT OR SERVANT. An agent or
servant may distrain, for and at the direction of, the master or
owner of the premises or crops, trespassing animals doing damage
thereon, and as such agent he may justify, in an action of replevin
brought against him to recover the cattle thus held by him. Bear-
inger v. O'Hare, 259.
ALIMONY: ORIGINAL NOTICE. A judgment for alimony in an action for
divorce, when prayed for in the petition, is not void because the
original notice contained no statement that alimony was claimed.
The power to grant alimony is, at least under the statute, a mere
incident to the power to grant a divorce between the parties. Mc-
Eroen v. McEwen, 375.
See HUSBAND AND WIFE, 6, 7, 9, 10.
MISTAKE OF FACT. A mere mistake in the belief of a party as to the
existence of a fact which does not change the legal rights of the
parties, cannot be the basis of setting aside a contract deliberately
entered into by the parties; especially where no fraud is practiced.
Chapman v. Coats et al, 288.
1. PREVENTION OF FRAUD. While an estoppel will be suppressed
where fraud would be produced by its enforcement, it will on the
other hand be called into being for the prevention of fraud. Mc-
Namee v. Moreland, 96.
2. CONTRACT: EXECUTOR. A vendor who sells real estate to an execu-
tor, receives the purchase money and executes a deed in accordance
with the terms of the contract of sale, is thereby estopped from
claiming, in an action brought against him by the executor for
rents received after the sale, that the purchase was invalid because
made by the executor without being authorized thereto by the
County Court. Shawhan v. Long, 488.
1. CARLISLE TABLES: HUSBAND AND WIFE. In an action for damages,
by a husband and wife against a railroad company, for permanent
injuries received by the wife, the Carlisle tables may be admitted
to show the expectancy of the wife's life, when it appears from the
evidence that, by reason of such injuries, a servant had been, and
probably would have to be, employed to do the work the wife had
been accustomed to do. McDonald v. The Chicago & N. W. R. R.
Co., 124.
2. DECLARATIONS: RES GESTÆ. In an action of replevin by one claim-
ing to have purchased the property from one under execution
against whom the property was taken, the declarations of the
plaintiff, made soon after the purchase and while he was in posses-
sion of the property, as to the fact of his purchase and the consid-
eration upon which it was based, are not admissible in his favor as
part of the res gesta. Murray v. Cone et al., 276.
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