statute quite similar, providing that, in such a case, the fact of not testifying shall not "be referred to by any attorney in the case." Rev. St. 1889, § 4219. In the case of State v. Moxley, 14 S. W. 969, the prosecuting attorney used the following language: "They have offered not a word to explain or show how that woman came to her death. Not a neighbor was put upon the stand, if I am right,-man, woman, or child, kinsman or stranger,-to show what he said had caused her death, gentlemen. Instead of hunting up an explanation made by him to his neighbors,-or, if they ever made an effort, they never produced the result of that effort in the court. There they are, alone, she in perfect health; and in the nighttime she comes to her death suddenly. We say that common honesty, common decency, require, at the hands of that man, when he sees his neighbors, to tell how she came to her death. I don't care whether innocent or guilty. If guilty, he goes to work to make up a story; if innocent, he tells the truth. The neighbors expected it of him. Your neighbors would expect it of you; and, gentlemen, you would expect it of yourselves." In that case the court, after defining the words "referred to" as meaning "alluded to," said as follows: "If the object of the statute was to prevent the jury from considering the fact that a defendant has failed to testify, it is easy to see that as much could be accomplished to defeat that object by an allusion to such facts as by reference thereto. The language of which complaint is made was simply an adroit and insinuative attempt indirectly to accomplish what could not have been accomplished by a direct statement. The statute does not permit such evasions of its manifest purpose." The language in that case is not as clearly violative of the statute as is the language in this case. It may be well to also state, as this is a crimmal case, that the language used does not meet the letter or spirit of the law in a criminal case. It violates the rule substantially announced in all criminal trials, that the defendant is presumed innocent until guilt is established by the state. Guilt is not to be presumed from a failure to disprove any fact. No conviction could rest under an instruction announcing a rule like that involved in the statement of the county attorney. A new trial was asked because of the language used by the county attorney, and it was error to refuse it. Reversed.

KING et al. v. WELLS. (Supreme Court of Iowa. Dec. 14, 1898.) HUSBAND AND WIFE-FRAUDULENT CONVEYANCES -CONSIDERATION-APPEAL-REVIEW -PARTNERSHIP.

1. Where a conveyance from a husband to a wife is not made to hinder or defraud subsequent creditors, it will not be set aside in favor of such a creditor, although made without adequate consideration.

2. Where a wife paid for property largely with her own labor, the fact that her husband

contributed his labor towards the purchase will not give his subsequent creditors a claim against the property.

3. The fact that notes transferred by a wife as her separate property in payment of land had been made payable to her husband for convenience will not give the husband's creditor a claim against the land, where he was not misled by that fact.

4. Matter not urged in appellant's argument in chief will not receive special consideration. 5. Grounds of relief urged for the first time in the supreme court will not be considered.

Appeal from district court, Decatur county; W. H. Tedford, Judge.

Action in equity to subject property claimed by the defendant to a judgment in favor of the plaintiff, and against the firm of J. W. Wells & Co. There was a hearing on the merits, and a judgment in favor of the defendant for costs. The plaintiff appeals. Affirmed.

Stookey & Brooks, for appellant. Harvey & Parrish and C. W. Hoffman, for appellee.

ROBINSON, J. The co-partnership of J. W. Wells & Co., consisting of J. W. Wells and N. Wells, commenced doing a general mercantile business at Decatur City, Iowa, in the year 1894. The business was continued until July, 1895, when J. W. Wells disposed of the stock of merchandise to one E. W. Townsend. In February, 1895, the plaintiff sold and delivered to J. W. Wells & Co. merchandise to the amount of $684. Judgment for that amount and costs was rendered in favor of the plaintiff, and against J. W. Wells & Co. and the members of that firm, in November, 1895, and is wholly unpaid. The firm and its members are now, and were when they closed business, insolvent. In exchange for the merchandise, Townsend executed to the defendant, who is the wife of J. W. Wells, a deed for 190 acres of land, subject to mortgages thereon to the amount of $1,300. At the same time. the defendant received from her husband a certificate of deposit for $971. The plaintiff claims that the conveyance of the land and the delivery of the certificate of deposit to Mrs. Wells were fraudulent, and by this action seeks to subject the land and the money represented by the certificate to the payment of the judgment. Mrs. Wells claims that they were transferred to her without fraud, in payment of a debt which her husband was owing to her.

1. The evidence establishes facts as follows: In the first part of the year 1895, Mrs. Wells sold to one L. M. Smith; and, by some arrangement with him, she and her husband conveyed to E. W. Townsend 200 acres of land which she claimed to own, and 48 acres of land owned by her husband and one Pray. She received for the land $1,000 in money, $1,800 in notes, and, in addition. $600 in notes secured by mortgages on a lot in Omaha, and 160 acres of land in Nebraska, subject to a mortgage. Nothing was realized on the notes and land last described.

She loaned the $1,000 in money and the $1,800 in notes to her husband, and he made to her his promissory note for $2,800. The land and certificate of deposit in controversy were transferred to her in payment of that note. The 200 acres of land sold by the defendant in the year 1895 were acquired by her as follows: Her husband conveyed to her, in the year 1888, 80 acres of land, subject to mortgages thereon to the amount of $1,000. At that time, her husband agreed to take care of and support his mother, and received from her 40 acres of land, subject to a claim of $450. The defendant was averse to the arrangement, for the reason that the mother "was hard to get along with," but finally consented, on condition that the land be conveyed to her, because of the fact that he was extravagant, and at that time somewhat dissipated, and the burden of supporting the mother and caring for the family would be upon her. She has since supported the mother. The remainder of the 200 acres was purchased by the defendant at various times. It is claimed that the consideration for the conveyance by the husband was insufficient, and that his earnings contributed to the purchase of the remainder. If these claims are well founded, it would not follow that the wife did not acquire a title to the land, valid as against the plaintiff. When the conveyance of 1888 was made, the husband was not in debt, and there is nothing in the record which authorizes the presumption that it was designed to hinder, delay, or in any manner defraud subsequent creditors. The same is true of the labor of the husband, which may have contributed to the purchase of the remainder of the 200 acres of land. The defendant, in addition to doing her housework, labored in the fields for 15 years; and it was through her labors and prudent management that the land which she sold was obtained. The fact that her husband worked with her, and aided with his labor in purchasing it, did not affect her title to it, nor give his subsequent creditors any right to subject it to their claims. Hoag v. Martin, 80 Iowa, 714, 45 N. W. 1058; Jamison v. Weaver, 87 Iowa, 72, 53 N. W. 1076; Brundage v. Cheneworth, 101 Iowa, 256, 70 N. W. 211, and cases there in cited. The cases of Hamill v. Augustine, 81 Iowa, 302, 46 N. W. 1113, Hamilton v. Lightner, 53 Iowa, 470, 5 N. W. 603, Bank v. Harvey, 16 Iowa, 141, and Harrison v. Kramer, 3 Iowa, 543, involved controlling facts, which were not subject to the rule applicable in this case, and are not in point. That is also true of Romans v. Maddux, 77 Iowa, 203, 41 N. W. 763, especially relied upon by the appellant.

The notes for $1,800, which formed a part of the consideration for the sale of the land in 1894, were taken in the name of J. W. Wells, for convenience in disposing of them; but the plaintiff was not in any manner misled by that fact. Other facts are relied up

on as tending to show that the land sold really belonged to the husband, but the evidence satisfies us that the 200 acres in question were owned by the wife, and that his creditors had no rights which they could have enforced against it.

Nothing is claimed in appellant's argument in chief on account of the 48-acre tract conveyed, which was owned by her husband and Pray; and, although it is referred to in the reply, the plaintiff is not entitled to have any special consideration given it. The evidence does not show, and we do not understand the plaintiff to contend, that the interest claimed by the defendant in the 200 acres was not worth what she received for it. It is insisted, however, that the land conveyed to her by Townsend in July, 1895, and the certificate of deposit, were worth more than the amount of the note made to her by her husband. The certificate of deposit was used in paying the debts of her husband. The testimony as to the value of the land is conflicting; but we are satisfied that its value, after deducting therefrom the mortgages upon it, was much less than $2,800, and that the aggregate value of the interest the defendant acquired therein, and of the certificate, did not exceed the amount of the note in payment of which they were received.

2. The claim of the plaintiff is based upon a debt contracted by the firm of J. W. Wells & Co., and it is claimed that the note of Wells to his wife was paid with the proceeds of partnership property, upon which the creditors of the partnership had claims paramount to the right of the wife to receive the proceeds in payment of the note, and that the consent of the retiring partner to the payment of the note with the proceeds of the sale has not been shown. It appears from the evidence that, before the stock of merchandise was traded to Townsend, the partnership was dissolved, and thereafter the stock was owned, and the business was conducted, by J. W. Wells. He had the right to prefer his wife to other creditors, and therefore the transfer of the land and certificate to her in payment of the note was in fact valid. But it is insisted that the petition alleges, and the answer admits, that the firm of J. W. Wells & Co. continued in business until July, 1895, and traded the stock to Townsend. That is true, but the answer also alleges that the stock was sold by J. W. Wells. Under ordinary circumstances, this conflict in the averments of the answer would be resolved in favor of the plaintiff; but a careful examination of the entire record satisfies us that the plaintiff did not in any manner assail in the district court the transfer of the property in question, on the ground that it was the proceeds of partnership property, and could not be used to pay the debt of one of the partners without the consent of the other. There is not the slightest indication that any claim of that

kind was made in the district court. On the contrary, the plaintiff presented its case upon the theory that the transaction was fraudulent, because made without a legal consideration, and to defraud the creditors of J. W. Wells & Co. That a ground for relief cannot be urged for the first time in this court is well settled. It is also settled in this state that partnership property may be used, with the assent of all the partners, in the payment of individual debts of the partners. Smith v. Smith, 87 Iowa, 93, 54 N. W. 73; Sylvester v. Henrich, 93 Iowa, 489, 61 N. W. 942. See, also, City of Maquoketa v. Willey, 35 Iowa, 323; Johnston v. Robuck, 104 Iowa, 523, 73 N. W. 1062. The evidence fails to show that the plaintiff has any right to the property in question. The judgment of the district court effectuates justice, and it is affirmed.

LYDICK et al. v. GILL et al. (Supreme Court of Nebraska. Dec. 8, 1898.)

APPEAL-REVIEW-CONFLICTING EVIDENCE. Questions of fact determined upon fairly conflicting evidence by a jury will not be reexamined in error proceedings in the supreme

court.

(Syllabus by the Court.)

Error to district court, Burt county; Powell, Judge.

Action by Hiram Lydick and Jonathan Lydick against John F. Gill and David Deaver. Judgment for defendants, and plaintiffs bring error. Affirmed.

H. E. Carter, for plaintiffs in error. Davis & Howell and S. H. Cochran, for defendants in error.

RYAN, C. This was an action of ejectment brought by plaintiffs in error in the district court of Burt county. Originally, John F. Gill was the defendant. During the pendency of the action, however, David Deaver, who had meantime purchased the interest of Gill, was, by stipulation, substituted as defendant. There are combated in argument the rights of Deaver as a purchaser in good faith, but it is unnecessary to consider this question, for the district court, in its instructions, followed the theory for which plaintiffs are now contending. The subject-matter of the controversy was a strip of land formed by accretion along the Missouri river, adjacent to lots 1, 2, 3, and 5 in section 13, township 21 N., range 11 E. of the sixth P. M. In effect, the court instructed the jury that plaintiffs were the owners of this accretion, and entitled to the possession thereof, unless the acts of estoppel pleaded by defendant had been established by a preponderance of the evidence; and in this connection the elements of an estoppel were fully stated. In general terms, the facts upon which defendant relied as sufficient to show an estoppel were that the property was claimed

by John F. Gill, between whom and plaintiffs there existed a controversy as to who had the better right; that defendant entered into negotiations with Gill for the purchase of his interest, and that this fact was known to plaintiffs; that plaintiff's encouraged him to buy the interest of Gill, and one of plaintiffs, to enable the defendant to make a payment on such purchase, became his surety at the bank to the amount of $1,500, of which amount, with the knowledge and acquiescence of said plaintiff, $1,000 was paid to Gill in consideration of his conveyance of his interest to defendant; that defendant, after his purchase, made valuable and lasting improvements on the property, with the knowledge and assent of plaintiffs; and that he would not have purchased or improved said property, if he had not, by plaintiffs, been encouraged so to do. If the evidence sustained the contention of defendant, his defense of an estoppel was established, under the rule laid down in Gillespie v. Sawyer, 15 Neb. 536, 19 N. W. 449. Plaintiffs met the question of estoppel by a denial of the facts alleged by defendant, and there was evidence which would justify a jury in finding for either party. Under such circumstances, the verdict of a jury will not be disturbed upon error proceedings in this

court.

More

It is insisted, however, that there was error in the admission of evidence with respect to certain matters, for instance, some of the acquiescence upon which defendant relied in his acquisition of title was the sole act or utterance of Hiram C. Lydick, one of plaintiffs; the other plaintiff, Jonathan Lydick, being absent. There was testimony, however, to the effect that Jonathan Lydick had previously said to defendant that Hiram was acting for him, and that whatever arrangement defendant would make with Hiram would be satisfactory to Jonathan. over, there was testimony to the effect that Jonathan actually knew that defendant was engaged in making improvements upon the property, and made no objection to his adverse rights thereby asserted. The estoppel pleaded, in its nature, depended largely upon the existence of facts logically to be inferred from the conduct and language of plaintiffs; and it was therefore unavoidable that much of the testimony should be indirect in its nature, for instance, there was testimony that it was at different times stated by Jonathan that Hiram was the sole manager of all the property in which both were interested. It would be unprofitable to describe these matters of complaint in detail, and it must suffice to say that, while the circumstances sought to be established did not directly bear upon the superior right of either claimant to the land in controversy, there was none which did not indirectly tend to throw light upon the issues to be determined by the jury. The questions to be determined were for the most part questions of fact, and these were submitted to the jury under instructions as

to which counsel have failed to point out any objection. The judgment of the district court is affirmed.

IRVINE, C., not sitting.

GAMBLE et al. v. BUFFALO COUNTY. (Supreme Court of Nebraska. Dec. 8, 1898.) JUDGMENT IN VACATION-VALIDITY.

A district judge is without authority to render in vacation a money judgment. Consent of parties will not confer such authority. (Syllabus by the Court.)

Error to district court, Buffalo county; Neville, Judge.

Action by the county of Buffalo against Ross Gamble and others. Judgment for plaintiff. Defendants bring error. Reversed.

E. C. & H. V. Calkins, for plaintiffs in error. Norris Brown and Fred A. Nye, for defendant in error.

IRVINE, C. This was an action on two official bonds of a former treasurer of Buffalo county. The principal did not answer. There was a trial of issues joined on the answer of the sureties, and a judgment in form entered for the plaintiff. The sureties bring the case here for review.

It appears from the record, and is conceded in the briefs, that the supposed judgment was entered at a time when the district court was not in session. In other words, it was the act of the judge in chambers, and not of the court. The case being a simple action of a legal nature, and the judgment being for the recovery of money, and not of such a nature as the law permits the judge to perform in chambers, the attempted judgment was coram non judice and void. Hodgin v. Whitcomb, 51 Neb. 617, 71 N. W. 314. It is argued that the defendants consented to the entry of judgment in vacation. No such consent appears in the record. The entry which it is contended supports that assertion is the entry recording the trial and submission, and contains this: "Decision of this cause to be rendered in vacation." This indicates an order of the court, rather than a stipulation of the parties. Moreover, had there been consent, it would be immaterial. The defect is of jurisdiction of the subjectmatter, want of authority in the judge to make the order. Such authority cannot be supplied by consent. Reversed and remanded.

COAD et al. v. BARRY. (Supreme Court of Nebraska. Dec. 8, 1898.) APPEAL RECORD-BILL OF EXCEPTIONS.

A document attached to a transcript, and purporting to be a bill of exceptions, cannot be considered, unless it be authenticated as such according to the requirement of the statute,

by the certificate of the clerk of the districa court.

(Syllabus by the Court.)

Error to district court, Douglas county; Ferguson, Judge.

Action by John F. Coad against Ellen T. Barry. Edward B. Callahan intervened. Judgment for defendant, and plaintiff and intervener bring error. Affirmed.

Martin Langdon, for plaintiffs in error. Mahoney & Smyth and Chas. W. Haller, for defendant in error.

IRVINE, C. The assignments of error in this case-at least, so far as attention is called thereto in the briefs-relate to the sufficiency of the evidence, rulings on the admission thereof, and to the giving and refusal of instructions, with regard to which their applicability to the evidence is a material factor. All these questions demand for their consideration an examination of the evidence. The document following the transcript, and purporting to be a bill of exceptions, is not authenticated by the clerk's certificate, and must therefore be disregarded. Affirmed.

RYAN, C. In the county court of Lancaster county, Herman Baacke filed his claim against the estate of Carl Baacke on April 14, 1894, and it was allowed in full June 29, 1894. The claim of Elizabeth Klepper et al. against the said estate was filed and allowed contemporaneously with that just described. On October 17, 1894, the administrator of said estate filed his motion in said court for the vacation of the allowance of the aforesaid claims, on the alleged grounds that said administrator had no notice or knowledge of the filing or allowance of said claims until within a short time before filing said motion, and had supposed the hearing would be on Sep

tember 29, 1894, as he had been informed by the county judge. This motion in reference to each claim was denied on December 10, 1894. A transcript showing the above proceedings was filed January 5, 1895, in the district court of said county. On March 11, 1895, the claimants filed a motion to dismiss the appeal of the administrator,-among other grounds, for the reason that the appeal had not been taken in due time, and because no petition in error had been filed. This motion was overruled, and the claimants duly excepted. There were further proceedings, which finally resulted in the reversal of the order denying the motion of the administrator, and the reversal of the judgment of allowance of said claims in the county court; and the correctness of this action of the district court is assailed by a petition in error of the claimants.

It is provided by section 233, c. 23, and section 43, c. 20, Comp. St., that an appeal from the allowance or disallowance of a claim shall be taken within a fixed time from the date of the order of allowance or disallowance. Clearly, the administrator was too late to secure a review in the district court by appeal.

It is provided by section 580, Code Civ. Proc., that a judgment rendered or final order made by a probate court may be reversed, vacated, or modified by the district court. The proceedings to obtain such reversal, vacation, or modification, it is provided by section 584, Id., shall be by petition in error. In this case there was not filed in the district court a petition in error; hence the district court was without jurisdiction to treat the case as properly presenting for review the question whether or not the county court had improperly denied the motion to set aside the allowance of the claim called in question by the administrator. The judgment of the district court was therefore erroneous, in any view which can be taken of the nature of the proceedings by which a review was sought in that court, and its judgment is reversed. Reversed and remanded.

ATTACK-ATTACHMENT-INTERVENTION.

1. When a court of competent jurisdiction has appointed a receiver in an action where such appointment is authorized, the authority of such receiver is not open to collateral attack.

2. A receiver of a corporation, appointed after the commencement of a suit against the corporation, may intervene in such action to defend the rights of the corporation.

3. Under the present banking law (Comp. St. c. 8), when an examiner, under authority of the banking board, has taken possession of the assets of an insolvent bank, such assets are not subject to attachment at the suit of a creditor of the bank while possession is so retained. (Syllabus by the Court.)

Error to district court, Jefferson county; Stull, Judge.

Action by Charles C. Andrews against the Steele City Bank and others. Henry B. Challis, receiver of the bank, intervened, and from an order sustaining his motion to discharge an attachment of the bank's property plaintiff brings error. Affirmed.

John C. Hartigan, for plaintiff in error. E. H. Hinshaw, for defendants in error.

IRVINE, C. Charles C. Andrews brought an action against the Steele City Bank, Charles B. Rice, and Vena Rice, alleging that he was a depositor in the bank, which had become insolvent, and was placed in the custody of the state banking board; that the Rices, who were husband and wife, were the sole stockholders of the bank, and had given a bond to pay the debts of the bank, and had taken possession of its assets. Judgment was prayed for $1,000. Plaintiff also sued out a writ of attachment, alleging every statutory ground except that the debt was fraudulently contracted. The attachment was levied on certain property, both personal and real. Thereafter Henry W. Challis obtained leave to intervene, alleging that he had become the receiver of the bank. He filed an answer, and also moved to discharge the attachment. This motion was sustained, and from the order discharging the attachment plaintiff prosecutes proceedings in error.

An attack is made on the validity of Challis' appointment as receiver, and upon his right to intervene. It appears that the banking board, pursuant to the proviso of section 35 of the banking act (Comp. St. c. 8), authorized the stockholders to take possession of the bank and its assets on giving a bond to settle the liabilities; that a bond was tendered and approved; that thereafter the board undertook to rescind its action, and directed the attorney general to apply for a receiver. Such application was made, and Challis appointed. It is argued that the board, after approving the bond, had no authority to rescind its action. But, if this be so, it would affect only the propriety of the appointment, and not is validity. The appointment was made by a court of competent jurisdiction, and in an action where the power to appoint existed. That is sufficient to protect the receiver's authority from collateral attack. We have no doubt of the receiver's right to become a party. The bank was sued before his appointment. He became, by operation of law, its transferee. By section 45 of the Code of Civil Procedure, where a transfer of interest occurs otherwise than by death, marriage, or disability, the action may either proceed in the name of the original party, or the successor in interest may be substituted. By section 50a, any person who claims an interest in the success of either party may be come a party by intervention. The receiver had an interest in the success of the bank, and he had a right to come in to defend that interest. Arnold v. Weimer, 40 Neb. 216,