and judgment for the defendant. Plaintiff appeals.

A. M. Antrobus, for appellant. C. L. Foor, for appellee.

ROTHROCK, J. 1. The defendant is a corporation. It appears that one Tinkham invented or discovered a device or appliance which it is claimed, when attached to the furnaces of steam-boilers, consumed the smoke from the burning fuel, and was a great saving of expense in the operation of machinery. It does not appear who were stockholders in said corporation. The officers at the time it is claimed the cause of action accrued were W. R. Smith, president, Tinkham, vice-president, and R. O. Simmons, secretary and treasurer. These persons, with F. O. Simmons, constituted the board of directors. The plaintiff claims that about the 27th day of February, 1889, he entered into a verbal contract with said Smith, by which the plaintiff bound himself to go to Little Rock, Ark., and Memphis, Tenn., and so. licit orders for the defendant's smokeconsumer; the plaintiff to pay his own expenses, and to receive from the defendant corporation for his services 50 per cent. of the amount for which he obtained purchasers, unless he found purchasers for appliances for less than three or four boilers in one locality, in which case he should be entitled to but 40 per cent. thereof; and that plaintiff's compensation should be payable when the orders or contracts for the work were taken. Plaintiff claims that he did go to the places named, and secured purchasers for enough of said devices to make commissions due to him from the defendant in the sum of $682.50. This is the main cause of action. There is an additional or second count in the petition, in which plaintiff claims that he made verbal contracts or procured verbal promises from other parties to purchase said device if, upon a "demonstration" to be made, the same would accomplish what was claimed for it, and that plaintiff was entitled to recover as commissions upon the last-named prospective orders in the sum of $2,100. The court instructed the jury that there could be no recovery therein. This instruction was correct. There was no evidence upon which a recovery of commissions could be based upon these so-called contracts. This is so manifest that we ought not to consume time in dis cussing the claim made touching its validity.

2. The other ground of complaint was submitted to the jury. It appears from the testimony of the plaintiff, as a witness, that it was a mistake as alleged in his petition that the orders which he succeeded in taking for the device were to be paid for when the orders were taken. He claimed, on the trial as a witness, that the commissions on said orders were to be paid for when they were approved and accepted by the defendant. It is claimed that the oral contract relied on was made with Smith, the president of the corporation. It is not claimed that any other officer of the corporation co-operated with Smith in making the contract. Smith sold out his interest in the business before

this suit was commenced. He testified as a witness that the orders were accepted by the company. He did not state that there was any written acceptance. What he evidently intended to state was that he accepted the orders for the company. If he did, it was by a mere mental resolution, not expressed. Most of the orders were not such as the company was bound to accept, and the evidence is almost without dispute that the officers, when acting collectively, refused to accept the orders. We know that counsel, with great zeal and ingenuity, present certain acts, declarations, and letters in which it is claimed that they acquiesced in the oral contract after it was made. But the argument does not bear investigation, when all the evidence is considered. Moreover, if this were a case triable anew here, we would find from the mode of doing business of the company, which was to pay commissions to agents when the purchaser paid for his smoke-consumer, and from certain letters written by the plaintiff, and which appear in appellee's abstract, that just that kind of a contract was made by Smith with the plaintiff. But there was a conflict in the evidence on this question, and we need not further consider it. As we read the record, it was incumbent on the plaintiff, in order to recover commissions, to prove that the orders were accepted and approved. Upon this question we think the plaintiff utterly failed in producing evidence upon which to base a verdict. This being our view of that question, it is an end of the case. It would not have been error if the court had instructed the jury to find for the defendant. The case demands no further consideration. Affirmed.

1. One partner may give a chattel mortgage on firm property to secure a firm debt, without the knowledge of his copartner or any express authority from him, even though the giving of such mortgage necessarily results in putting an end to the firm business.

2. Where a chattel mortgage is kept from record, and afterwards surrendered upon the giving of another mortgage, duly recorded, to secure the same debt, the fact that the first mortgage was kept secret does not affect the mortgagee's right to enforce his second mortgage.

3. A mortgage of firm property may be given to secure money used to pay a firm note, and borrowed for that purpose, even though the debt for which the note was given was originally the individual debt of one of the partners.

4. In the absence of fraud, the mortgagee of chattels is only accountable, on garnishment proceedings at the suit of the mortgagor's creditors, for so much of the mortgaged property as came into his possession.

5. The fact that a day after giving a chattel mortgage to one creditor the mortgagor gave four other chattel mortgages on the same property does not render the entire transaction an assignment for the benefit of creditors, where it is not shown that the mortgagor intended to give any more mortgages when he executed the first one.

and executed the firm note for $3,300, the balance found to be due to appellee, and a mortgage on the firm's merchandise to secure the note. This mortgage was not placed on record, and upon giving the mortgage in question this debt of $3,300 was included therein, and the unrecorded mortgage surrendered. If appellee was claiming anything under this unrecorded mortgage, then what is said with respect to giving a secret lien on property, and the authorities cited, would be in point; but appellee is claiming nothing by virtue of that mortgage, and the situation between the parties is the same as if that mortgage had never been given. By its surrender, appellee waived all rights under it. We may add that it does not ap. pear that the mortgage was withheld from record in pursuance of any agreement, nor at the solicitation of the mortgagor, as in Standard Paper Co. v. Freie Presse Co., (Wis.) 30 N. W. Rep. 298, relied upon by appellant.

5. In the settlement October 24, 1888, a draft that day given by McMaster & Dryden to S. J. Patterson for $793, on the First Ute Bank, was accepted and paid, and included in the two notes that defendant executed to appellee. This draft was to Patterson, as cashier of the Bank of Dunlap, and in payment of a note held by that bank. Appellant contends that this note was the individual debt of McMaster, and not the debt of the firm. The testi mony as to the origin of this debt is confused, but we think the weight of the testimony is in favor of the conclusion that, whatever the origin may have been, the note paid by this draft was the note of McMaster & Dryden. If it were other. wise, appellant would not be prejudiced, as it is very clear that the property which came into the hands of appellee was insufficient to satisfy the other part of the mortgage debt. Another circumstance relied upon as showing fraud is that appellee did not take possession of all the property described in the mortgage. The 40 hogs had been purchased by one W. A. Dryden with money furnished by Ingerson, Carrabine & Lye, of Sioux City, for that purpose, and were shipped to Sioux City, sold, and the proceeds turned over to the party furnishing the money. They were purchased and shipped by W. A. Dryden under an agreement that he was to have half the profits, and McMaster & Dryden the other half. It does not appear that there were any profits, or that anything ever came to appellee from the transaction. There is nothing to show what became of the 21 head of cattle, hay, and feed, at the stock yard, and the horse. It does appear, however, that no part of this property ever came into the bands of appellee. We think the testimony fails to show fraud in the taking of this mortgage, and that the appellee is only accountable for the property that actually came into his hands. It is a well-settled rule that liability will never be presumed against a garnishee, but must be affirmatively shown.

6. Appellant's further and last contention is that the execution of the mortgage in question "was a part of a transaction

which, taken as a whole, amounts to a general assignment for the benefit of creditors, and because of preference is void." It is not claimed that this mortgage taken alone would constitute such an assignment, but that it and the four mortgages executed on the following day were one transaction, and, taken together, constitute such an assignment. In determining whether a disposition of property constitutes such a general assignment, the intention of the parties will control. Kohn v. Clement, 58 Iowa, 589, 12 N. W. Rep. 550; Bank v. Crittenden, 66 Iowa, 237, 23 N. W. Rep. 646. Our inquiry is as to the intention of the parties at the time of executing the mortgage to appellee. There is some testimony as to statements made by Dryden some days after these transactions, to the effect that he had told Patterson on the 24th that he wanted to make such disposition of the firm property as that the creditors could share pro rata. This is denied by Patterson, and is inconsistent with what was then done; for surely Dryden knew that the mortgage would not be snch a disposition of the property. We are satisfied that Dryden had no thought of giving the four mortgages executed on the 25th at the time he executed the one to appellee. His action did not indicate any other intention than to secure the particular creditors to whom he made the mortgages. Whatever his intentions may have been on the 25th, we are satisfied that the mortgage was given to appellee in good faith, to secure an honest debt, and as an independent transaction from the execution of the other mortgages. They were separate in point of time, and not connected by intention or circumstance. Appellee had a right to demand and receive, and Dryden to give, the mortgage in question; and we think it was given and received in good faith, and that appellee is entitled to the benefit of it. See Davis v. Gibbon, 24 Iowa, 257. As the proceeds arising from the mortgaged property are not in excess of the debts secured by the mortgage, appelle was properly discharged. The judgment of the district court is affirmed.

STATE V. MAAS.

(Supreme Court of Iowa. Oct. 16, 1891.)

ADULTERY-INDICTMENT.

Code Iowa, § 4008, which declares that no prosecution for adultery can be begun but on the complaint of the husband or wife, does not make it necessary to allege in an indictment for adultery that the prosecution is begun on such complaint.

Appeal from district court, Johnson county; S. H. FAIRALL, Judge.

The defendant was indicted for the crime of adultery, and upon the trial, upon the direction of the district court, a verdict of acquittal was rendered. The state appeals.

C. S. Ranck, Co. Atty., and M. J. Wade, for the State.

BECK, C. J. 1. The indictment alleges that defendant is not a married man, and the crime was committed with a married woman, but it does not aver that the

prosecution was commenced upon the complaint of the husband of such woman; but an indorsement thereon shows that the indictment was found at the instance of the husband of such woman with whom the crime was committed. Evidence was introduced by the state tending to show defendant's guilt, and the state offered to prove that the husband of the woman with whom defendant committed the crime commenced the prosecution. The evidence was rejected, the court holding that, as there was no allegation of the fact in the indictment, it was not competent to prove it. The court directed a verdict for defendant on the ground that there is no averment in the prosecution to the effect that the prosecution was commenced by the husband of the woman with whom the crime was committed, and no proof of that fact was before the jury.

2. The statute (Code, § 4008) prescribing punishment for the crime of adultery is in this language: "Every person who commits the crime of adultery shall be punished by imprisonment in the penitentiary not more than three years, or by fine not exceeding three hundred dollars, and imprisonment in the county jail not exceeding one year; and when the crime is committed between parties only one of whom is married, both are guilty of adultery and shall be punished accordingly. No prosecution for adultery can be commenced but on the complaint of the husband or wife. " This provision, forbidding prosecution for the crime except "on the complaint of husband or wife," does not prescribe an element of the crime; it simply limits the authority of the court to punish the crime in certain cases. State v. Donovan, 61 Iowa, 278, 16 N. W. Rep. 130: State v. Mahan. (Iowa,) 46 N. W. Rep. 855. It follows that evidence as to the commencement of the prosecution by the husband or wife may be introduced, though no averment of the fact is found in the indictment. See State v. Briggs, 68 Iowa, 416, 27 N. W. Rep. 358; State v. Brecht, (Minn.) 42 N. W. Rep. 602; State v. Wilson, 22 Iowa, 364. We conclude upon these conditions that the district court erred in its rulings excluding the evidence and directing a verdict of acquittal. The judgment of the court below, without affecting the acquittal of defendant under Code, § 4527, is reversed.

PIDCOCK V. VOORHIES et al. (Supreme Court of Iowa. Oct. 21, 1891.) DOCUMENTARY EVIDENCE-BURDEN OF PROOF.

1. A statement of account, attached as an exhibit to a deposition in a suit to set aside an alleged fraudulent conveyance of land and subject it to a judgment, is not admissible in evidence to show an indebtedness to plaintiff at the time of the conveyance, where there is nothing to show whose book-account it is a copy of, by whom it was kept, when the entries were made, nor whether they are believed to be true.

2. In such case, where the answer denies the debt and the fraud, until the plaintiff has proven both such facts by competent testimony the defendant need not try to disprove them. 42 N. W. Rep. 646, affirmed.

On rehearing.

BECK, C. J. 1. A petition for rehearing was allowed in this case, and it has again been submitted upon arguments of counsel of both parties. The decree of the district court declared the conveyances void, and set them aside, but gave one of the defendants a claim upon the land prior to plaintiff's judgment. From this decree both plaintiff and this defendant appeal. The defendant's appeal was not considered in the foregoing opinion, for the reason that the decree setting the conveyance aside rendered the consideration of defendant's appeal unnecessary.

2. Upon a re-examination of the case, we are satisfied that the conclusion reached in the foregoing opinion is correct. If the account referred to in the opinion be considered, it fails to show an indebtedness prior to the first conveyance assailed by plaintiff. It shows almost daily debits and credits. Now, it is a familiar rule that payments upon one open account are to be applied to the payment of debit items in the order of their dates. See Bank v. Hollingsworth, 78 Iowa, 575, 43 N. W. Rep. 536. The accounts and the other evidence of plaintiff do not show the amount of the indebtedness at any time before the notes were given. We cannot presume that at any time prior to the execution of the deed for the land the indebtedness existed. But the debtor testifies that a long time before the notes were given, and at other times, there were arrearages upon the account against him; but it is not shown that the payments upon the accounts under the rule just stated did not satisfy the arrearages. Indeed, it would appear from the character of the transactions, the amount of the business done, and the amount of the notes upon which the judgment was entered, that the indebtedness must have arisen after the deed in question was executed. We are author. ized to infer that the payments-creditsmade prior to the execution of the deed were sufficient to discharge the indebtedness then existing. We adhere to the foregoing opinion and the conclusions therein announced.

STATE et al. v. FARRELL et al. (Supreme Court of lowa. Oct. 24, 1891.) SHERIFF DEPOSIT IN LIEU OF BOND-LIMITATIONS -SCHOOL FUND.

1. Where a sheriff releases a prisoner on payment to him of the sum at which the prisoner's bail is fixed, the sheriff cannot be compelled, after the prisoner has failed to appear, to pay the money to the school fund, in the absence of any statute allowing the sheriff to release a prisoner on the receipt by him of money instead of a bond.

2. Code Iowa, 1880, which provides that lapse of time shall not bar an action on a contract for any part of the school fund, does not apply to an action against a sheriff to recover for the benefit of the school fund money deposited with him in lieu of a bail-bond.

Appeal from district court, Mills county; H. E. DEEMER, Judge.

Action to recover a sum of money alleged to have been paid to secure the appearance of a person held to bail on a criminal charge to await the action of the grand jury. Demurrers to the petition were sustained, and judgments for

costs were rendered in favor of defendants.

The plaintiffs appeal.

tiffs, whether it was deposited with the clerk or not; and that it now belongs to

ROBINSON, J. The defendant Farrell was elected sheriff of Mills county for the term which commenced in January, 1884, and duly qualified for and entered upon the discharge of the duties of the office. His co-defendants were sureties on his official bond. The petition shows that in the month of February, 1884, Farrell had in his custody as sheriff one Charles Mull, who had been ordered by a magistrate to be held on a criminal charge to await the action of the grand jury of Mills county at the term of court which commenced in March, 1884. Mull had been admitted to bail in the sum of $250. No bond was given, but money to the amount named was paid to Farrell by one Dailey, to be held in lieu of a bond, and Mull was released. He was indicted by the grand jury of Mills county at the March, 1884, term of the district court, but failed to appear at that term, and has never appeared since. At the term at which he was indicted the district court declared his bond forfeited. No bond had been given. The money was paid to Farrell for the purpose of having him deposit it with the clerk of the district court, but he failed to make the deposit, and has never paid the money to the clerk or to the county of Mills. This action is brought for the benefit of the school fund, in the name of the state and of the county, to recover the money paid to Farrell. The petition in different counts charges Farrell with liability as an officer, and also in an unofficial capacity. The first count alleges that the money was received by Farrell, as sheriff, as security for the appearance of Mull at the term of court to which he was held to appear, and demands judgment therefor against him and his bondsmen. The second count alleges that Farrell received the money for the purpose of depositing it with the clerk; that he received it in trust for plaintiffs, to be deposited as aforesaid; that when he received it he was an officer of the court, and that it was his duty to pay the money into the treasury of Mills county for the benefit of the school fund; that he has repeatedly promised to make such payment. An order is asked requiring him to deposit the money, with interest, in the hands of the clerk. Also to pay it to the treasurer of Mills county. Judg. ment for the amount is also demanded. The third count alleges that in February, 1884, Dailey deposited with Farrell the money in question, and that the latter then promised to pay it to plaintiffs for the use of the school fund; that the money is not paid, and is now held by Farrell, for the use of the plaintiffs. The fourth count charges that Dailey deposited the money in question with Farrell, who agreed to deposit it with the clerk for the use and benefit of plaintiffs; that the money was set apart and appropriated by Dailey for the use and benefit of plaintiffs for the use of the school fund; that it was deposited with Farrell for the use of plain.

repetition of much that is stated in the other counts, and, in addition, alleges that by virtue of the agreement between Farrell and Dailey the former was not to hold the money for the latter, nor was he to hold the same for his own use, but that it was set apart and appropriated for the use and benefit of plaintiffs. The grounds of the demurrers are numerous, and need not be specially mentioned. It is enough to say that the demurrers sufficiently present the questions upon which the case must be decided.

Section 4589 of the Code provides that "the defendant, at any time after an order admitting him to bail, instead of giving bail may deposit with the clerk of the district court to which the undertaking in case of bail is required to be sent the sum mentioned in the order, and, upon delivering to the officer, in whose custody he is, a certificate, under seal, from said clerk, of the deposit, he must be discharged from custody. There is no pro

vision of law permitting the payment of money to the sheriff, and the action of defendant in receiving it was not only unauthorized, but the release of the prisoner in consideration of its payment was a violation of the warrant of commitment under which he was held. The sheriff could not have made a valid agreement to receive the money for the use and benefit of plaintiff in consideration of the release of the prisoner. The one he made was void, and no rights accrued to plaintiffs by virtue of it. But, if the agreement had been valid, plaintiffs could not have succeeded in this action unless upon the ground that the money was held in trust for their benefit, for the reason that as to the other grounds the action is barred by the statute of limitations. The cause of action accrued, as to such grounds, not later than March, 1889. Section 2529 of the Code provides that actions against a sheriff, growing out of a liability incurred by the doing of an act in an official capacity or by the omission of an official duty, including the non-payment of money collected on execution, shall be barred if not brought within three years from the time the cause of action accrued. If it be true that Farrell received the money as a private person, under an agreement to hold it for the benefit of and to pay it to the plaintiffs, the action therefor was barred when the five years from the time the cause of action accrued had elapsed. Code, § 2529, subd. 4. It is said that lapse of time does not bar an action brought on any contract for any part of the school fund. Code, §§ 1880, 2542. But the money in question never became a part of the school fund, and this is not an action on a contract for any part of it. It was never deposited with the clerk, and the order of the court adjudging the bond forfeited gave the plaintiffs no right to have it appropriated for their use. That would have been true had the money been lawfully paid to the sheriff under the rule announced in State v. Klingman, 14 Iowa, 408, where it was held that, when the bond for the appearance of a de