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must be complete in itself. Code 1873, § 2657.

The last reason in support of the general ground of demurrer is that the matter contained in this division is inconsistent with the averments of the first division of the answer, and that the pleading is not properly verified, for inconsistent matters. This objection might be good as to the verification, but it cannot go to the subject-matter of the defense. Inconsistent defenses are allowable. Code 1873, § 2710. The demurrer was properly sustained on the first two grounds.

6. It is perhaps somewhat out of the usual course for us to do more than pass upon the questions presented. This we have already done. But as the legal sufficiency of the fourth division of the answer was attacked, though, as we hold, not in proper form, and as the case must be sent back for another trial, we deem it for the interest of the parties to say something with relation to a matter that has been fully discussed. When a servant is wrongfully discharged, he is not bound, for the purpose of lessening damages, to accept new employment from the same master, unless (1) the work is in the same general line as that of the first employment, and (2) the offer is made in such a way as that its acceptance will not amount to a modification of the original agreement. The first proposition seems to be conceded by counsel, and on the other we cite Chisholm v. Assurance Co. (Mich.) 70 N. W. 415. For the errors pointed out the judgment will be reversed.

GATES v. KNOSBY et al. (Supreme Court of Iowa. Jan. 21, 1899.) JUSTICES OF THE PEACE-DISAGREEMENT OF JURY -WRIT OF ERROR-REMAND.

1. Under Code 1873, § 3549, providing that a justice may discharge a jury when satisfied that they cannot agree, and shall "immediately" issue a new precept for another, to appear at a time therein fixed, not more than three days distant unless the parties otherwise agree, the new precept must be issued without delay, so that the parties at that time may take notice of it; and where a justice delayed for two days to issue it he lost jurisdiction to try the case without further notice.

2. Under Code 1873, § 3603, providing that in proceedings on a writ of error from a justice's judgment the district court may render final judgment or remand the cause, it was proper to remand a cause where the judgment was vitiated by failure to issue a new precept for a jury "immediately" on disagreement and discharge of the former jury, since the justice's omission did not operate as a dismissal.

Appeal from district court, Dickinson county; Lot Thomas, Judge.

Proceedings by writ of error to a justice's court. Upon the hearing by the district court, the action of the justice's court complained of was reversed, and the cause was remanded for further proceedings. All parties appeal, the appeal of the plaintiff having been first taken. Affirmed.

L. E. Francis and W. S. King, for plaintiff, St. Clair & Reigard, for defendants.

ROBINSON, C. J. This trial is submitted to us on a certificate of the trial judge which shows the following facts: Action was commenced by the plaintiff against the defendants in the court of William Hayward, justice. When the time for trial arrived, Hayward was sick, and called in R. A. Smith, another justice of the same township. The parties appeared, a jury was impaneled. and the cause was submitted, but the jury failed to agree, and, in the absence of the parties and their attorneys, and without their knowledge, was discharged by the justice, Smith, and, believing his connection with the case was ended, he did not issue a new precept for another jury, and did not set the time for a second trial. Twenty-nine hours after the jury disagreed, the plaintiff demanded of Smith that he issue a new precept. Smith requested Hayward to issue it, but the latter was unable to do so, and, by agreement between the justices, Smith, at the end of two days and one hour from the time the jury disagreed, issued a new precept, making it returnable two hours later. The plaintiff appeared at the hour fixed for the trial, but the defendants did not appear. Evidence was introduced by the plaintiff, a verdict was returned in her favor, and judgment thereon was rendered. The proceedings in error were for the purpose of reviewing that judgment. The district court reversed the judgment, and remanded the cause, with directions to the justice to entertain jurisdiction of the case and proceed to retry it, after notice to the parties and their attorneys. The plaintiff complains of so much of the judgment as reversed that of the justice, and the defendants complain of so much of it as remanded the cause to the justice for further proceedings.

1. The facts certified do not show that the

defendants had any knowledge of the second trial, and one of the questions certified indicates that notice thereof was not given to them. The first question submitted to us is stated as follows: "Under the foregoing statement of facts, did the justice of the peace, by not issuing a venire for another jury at the time that the first jury was discharged, and by waiting two full days before issuing such venire, lose jurisdiction to try the case, or could he thereafter proceed and try the case, and determine the issues between the parties, and render a valid judgment against the defendants upon the verdict of the jury returned in the second trial of the case?" Section 3549 of the Code of 1873, which was applicable to this case, is as follows: "The justice may discharge the jury. when satisfied that they cannot agree, and shall immediately issue a new precept for summoning another, to appear at a time therein fixed, not more than three days distant. unless the parties otherwise agree." We are required to determine the meaning and force

of the word "immediately," as used in that section. When applied to time, the word strictly defined means without interval of time; at once; instantly (Webst. Int. Dict.). But as applied to legal proceedings it does not necessarily exclude all interval of time, and in many cases it has been held to mean within such time as is reasonably sufficient in which to accomplish the act to which it is applied. Gaddis v. Howell, 31 N. J. Law, 313; 9 Am. & Eng. Enc. Law, 931, note 2. The legal signification of the word is much the same as that of "forthwith." Davis v. Simma, 14 Iowa, 154; 8 Am. & Eng. Enc. Law, 571; Black, Law Dict. 592. Section 3552 of the Code of 1873 related to actions in justice's courts, and provided that "in cases of dismissal, confession, or on the verdict of a jury, the judgment shall be rendered and entered upon the docket forthwith." This court has held that the provision must be construed reasonably; that a judgment upon a verdict returned at 9 o'clock at night may be properly entered the next morning (Knox v. Nicoli, 97 Iowa, 687, 66 N. W. 876); that when the verdict is returned at 10:30 o'clock at night judgment thereon may properly be rendered at 11 o'clock of the next day (Davis v. Simma, 14 Iowa, 154); and that "forthwith," as used in that statute, means within a reasonable time (Burchett v. Casady, 18 Iowa, 342). See, also, Lyon v. Comstock, 9 Iowa, 306. But in order to ascertain the true meaning of the word in question we must consider not only its permissible use, but the conditions to which it is made applicable by the statute. Trials in justice's court are less formal and more speedy, as a rule, than are trials in courts of record. The statute does not provide for notice to the parties of the issuing of a new precept, and of the time fixed for a new trial, but seems to contemplate their presence in court when the action is taken. It is entirely reasonable to require the parties to take notice of what is done at the time the jury is discharged, but it is not reasonable to require them to be in constant attendance upon the justice for an indefinite period of time, until he shall take the action required by the statute. The phrase "not more than three days distant," contained in the statute, refers to the time when the new precept is issued, and if that be not when the jury is discharged the time for issuing the precept may be as variable as are the various meanings and applications of the word "immediately." We do not think that this was the legislative intent, and conclude that by delay in issuing the second venire in this case, no agreement by the parties having been made, the justice lost jurisdiction to try the case without further notice, and the district court properly held that the judgment rendered was erroneous.

2. We are next required to determine whether the district court erred in remanding the cause for further proceedings. Section 3603 of the Code of 1873 provided that in proceed

ings on writ of error the district court might render final judgment, or remand the cause to the justice for a new trial, or such further proceedings as should be deemed proper, and might prescribe the notice necessary to bring the parties again before the justice. The failure of the justice to issue a new precept immediately did not operate to dismiss the cause, but it remained in court for further proceedings after proper notice should have been given. Its legal condition was similar to that of a case docketed by the justice in which no notice has been served nor appearance by the defendant entered. No justifiable end would be accomplished by dismissing the cause and requiring that it be commenced anew before the plaintiff can have a trial on the merits of her cause. We conclude that the action of the district court in remanding the cause was correct. The judgment of the district court is, on both appeals, affirmed.

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1. An oral assignment of books of account, and of the accounts charged therein, is not avoided by Code 1873, § 1923, avoiding assignments, if the assignor retains possession of the subjectmatter, unless in writing and recorded, where the possession of the books was delivered, though the assignor afterwards took them temporarily, in order to post them.

2. Authority of a party to take an assignment in question cannot be questioned for the first time on appeal.

Appeal from district court, Pottawattamie county; W. R. Green, Judge.

The action is for the possession of certain account books, showing accounts of B. P. Olsen against divers persons, alleged to have been assigned and delivered by said Olsen to plaintiff to secure certain claims held by plaintiff for collection against Olsen. The answer is a general denial, except that it admits what plaintiff alleges to be his belief, on information, that defendant's claim to the books is also an assignment from said Olsen. The issues were tried to a jury that returned a finding for plaintiff, and from a judgment the defendant appealed. Affirmed.

Barton & Van Slyke, for appellant. Benjamin & Preston, for appellee.

GRANGER, J. 1. After the evidence was closed, the parties made the following stipulation: "It is agreed by the parties to this action that the only question which shall be submitted to the jury shall be presented to them by the court in the form of a special interrogatory as to whether or not there was an assignment or transfer of the property in controversy in this case to the plaintiff, and that judgment shall eventually be rendered herein by the court in accordance with the determination of this special finding and what

the court shall determine to be the undisputed facts in this case; parties, however, reserving the right to except to the determination of the court as to the undisputed facts and the conclusions of law drawn therefrom by the court in entering the judgment which shall eventually be rendered." The court submitted the interrogatory, and the jury answered it in the affirmative, which was favorable to the plaintiff. We may set at rest some of the questions argued by appellant by saying that the stipulation presented the only practical issue of fact in the case. It was a matter of no moment whatever what consideration defendant paid for the assignment to him. No such assignment was pleaded, nor was such a fact at issue. He had the books, and plaintiff sought their possession under the assignment to him. If there was a valid assignment, it was prior to any claim of defendant, and plaintiff must have the books. If there was not, plaintiff must fail, and, without any inquiry as to defendant's right, judgment must be entered against plaintiff. Plaintiff's recovery must depend on his own title, and not on the weakness of defendant's, or even a want of it. No writ issued for the delivery of the books, and the possession of plaintiff, if he has it, must follow the final judgment.

2. On the question stipulated to be submitted to the jury, namely, did Olsen assign and turn over to plaintiff the accounts? the court said to the jury that the burden was with the plaintiff to show the assignment, but that it was not necessary that the assignment should be in writing; and the instruction is said to be error because of section 1923, Code 1873, that "no sale or mortgage of personal property, where the vendor or mortgagor retains actual possession thereof, is valid against existing creditors or subsequent purchasers, without notice, unless a written instrument conveying the same is executed, acknowledging like conveyances of real estate, and filed for record with the recorder of the county where the holder of the property resides." The specific property of which possession is sought is the books stating the account. The jury found that they were assigned and turned over to the plaintiff, so that there was not only a sale, but there was a delivery of the possession. After such possession was taken, Olsen, at the instance of Mr. Benjamin, who was a partner of Preston, took the books to post them for the accommodation of the assignee, and while he had them for that purpose he assigned them to the defendant, Peterson, who is his father-in-law. The books were in plaintiff's possession some days, so that the validity of the assignment was fixed by the actual possession being in plaintiff. The fact that the assignor afterwards had possession, to post the books for the plaintiff, does not change the conclusion. The only question we consider is the validity of the assignment, it not being in writing. No claim is made because of the manner of holding possession; that is, whether it was such as to impart notice 77 N.W.-55

to persons dealing with reference to the property. See Deere v. Needles, 65 Iowa, 101, 21 N. W. 203. By the terms of the stipulation, the jury was limited to the fact of an assignment and turning over the property. The fact of whether the treatment of the property, after it was turned over, was such as to change the rule, was not a matter of inquiry on the trial, and is not involved here. The instruction was not erroneous.

3. The point is made in argument that it does not appear that plaintiff had authority to take the assignment to secure the claims held for collection. It is sufficient to say that it does not appear that such a question was considered or determined on the trial below. The case seems to have been tried on the assumption that there was such authority, or, at least, without its being questioned. The petition is entirely silent as to such authority, and its sufficiency is in no way brought in question. The question cannot be, for the first time, presented in this court. The rule is familiar. We find no error in the record, and the judgment will stand affirmed.

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1. Comity will not permit a foreign receiver to sue in Iowa, where his claim is without_equity, and contravenes the rights of citizens of Iowa.

2. A foreign receiver has no absolute right to sue in Iowa to enforce the law of his state against the citizens of the latter; and this, although the order of appointment gives him authority to sue in other states.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

As a statement of facts, we have taken the following substantially from those made by counsel: This was an action brought by Albert U. Wyman, the receiver of the Nebraska Fire Insurance Company, to enforce against the several defendants their constitutional liability under the Nebraska statute for their unpaid subscriptions to the capital stock of the company. This company was incorporated on March 13, 1883, in conformity with the laws of the state of Nebraska, under the name of the Nebraska & Iowa Insurance Company, its name being subsequently, on February 28, 1890, changed to the Nebraska Fire Insurance Company, under which name it transacted business until its insolvency, in 1891, when an application for its dissolution by W. G. Madden, one of its stockholders, resulted in the appointment of the plaintiff, first, as temporary, and then as permanent, receiver of the corporation, and a decree adjudging the dissolution thereof. The testimony shows that one J. T. Hart, of Council Bluffs, was largely instrumental in the organization of the company; that the subscribers to its stock and the original stockholders were citizens prominent in Omaha and in Council

Bluffs; and that when this company, the Nebraska & Iowa Insurance Company, was organized, there was organized at the same time, mainly through the instrumentality of Mr. Hart, another insurance company, called the Iowa & Nebraska Insurance Company, and having its principal place of business at Council Bluffs, Iowa. The original intention of the organizers, as gathered from the testimony of Mr. Hart, and the contract of subscription, was to consolidate the two companies after their organization. This, however, was never done, the two corporations being operated separately in each state, although the stockholders were at first the same. The Iowa corporation did business until about May 29, 1885, when it was merged into a company known as the Western Home of Sioux City, and went into the hands of a receiver. The capital of each company was $100,000, and the certificates of stock contemplated subscriptions to both companies, and were signed, as appears, by officers of each company. The stock was originally issued in this duplicate or combined form. These combined certificates were subsequently canceled, and were separately rewritten and issued.. The contract of subscriptions of the several defendants to the stock of the two companies, and upon which it is claimed that the defendants herein are answerable for the unpaid 50 per cent. thereof, is as follows: "We, the undersigned subscribers hereto, in consideration of each other's subscription to the capital stock for an insurance company in the state of Iowa and the state of Nebraska, to be organized in both states separately, and after the organization to be consolidated, to be known as the Iowa and Nebraska State Insurance Company, for the purpose of carrying fire and lightning, windstorm and tornado, insurance, business to be done under the laws of both states, do hereby subscribe and agree to pay and secure as provided by the laws of said states the several sums set opposite our respective names, if such an insurance organization is perfected, and on demand, to the secretary thereof, on or before the 12th day of March, 1883." Under this subscription, shares of stock of $100 each were issued to the subscribing stockholders, one-half of such shares being issued to them in the Iowa company, and one-half in the Nebraska company. The defendants paid 50 per cent. of their several subscriptions upon the stock of the Nebraska & Iowa Insurance Company at the time of its organization, as required by the laws of the state of Nebraska. Nothing more was ever paid upon the stock except in the manner indicated hereafter. The defendants in this action, who had been subscribers to the capital | stock of the consolidated company, and to whom had been issued the joint certificates of stock in the Iowa and Nebraska companies, had surrendered their stock, and new stock had been issued to the parties purchasing from them. These purchasers, as the record shows, were in large part the original pro

moters of the company. Upon the organization of the company, one-half of the capital stock subscribed being paid in cash, the promissory notes of the subscribers, payable on demand and secured, were given in payment of the other one-half of the stock of the corporation. Prior to 1887, these defendants had transferred the stock issued to them, by a surrender of their stock, and reissuance of other certificates to the purchasers; the company accepting the surrender, and recognizing the transfer, returning the stock notes of the defendants, and accepting the stock notes of the transferee in lieu thereof. This was done, as shown by the record, at a time when the corporation was solvent, and the transfers were made and new stock issued to solvent purchasers; all being done in good faith on the part of the corporation, the transferror, and the transferees. Practically, the entire stock passed into the hands of a syndicate composed in large part of original promoters of the consolidated corporation, but not including any of these defendants. From the date of these transfers, these defendants ceased to have any connection with or control over the corporation. The district court entered judgment for the defendants, and the plaintiff appealed. Affirmed.

E. & A. C. Wakley and Flickinger Bros., for appellant. Harl & McCabe, Finley Burke, Wright & Baldwin, Sanders & Stuart, John Y. Stone, and C. R. Marks, for appellees.

GRANGER, J. It will be well to repeat that this action is by a receiver appointed to wind up the affairs of the Nebraska Fire Insurance Company, on the application of one of its stockholders, to recover from the defendants on their subscriptions to the original enterprise, wherein was contemplated the organization of two companies,-one in Nebraska, to be known as the Nebraska & Iowa Insurance Company, and one in Iowa, to be known as the Iowa & Nebraska Insurance Company; the two companies to be thereafter consolidated. The first-named company was organized under the laws of Nebraska, and located at the city of Omaha, in that state; and the latter under the laws of Iowa, and located at the city of Council Bluffs, in Iowa. The consolidation was never made, and the latter company was changed to that of the Western Home of Sioux City, and its place of business changed to Sioux City, Iowa, about May, 1885. The Nebraska & Iowa Company was changed to the Nebraska Fire Insurance Company, and continued to operate until 1891, when the insurance de partment of Nebraska withdrew its certifi cates authorizing the company to do business, and, on the application of one of its stockholders, its insolvency was decreed; and the plaintiff is now engaged in winding up its affairs, and this action is in aid of that purpose.

The action has for a legal basis a provision

of the constitution of Nebraska, as follows (section 4, art. 11): "Liabilities of Subscribers to Stock. In all cases of claims against corporations and joint-stock associations, the exact amount due shall be first ascertained, and after the corporate property shall have been exhausted, the original subscribers thereof shall be individually liable to the extent of their unpaid subscriptions, and the liability for unpaid subscriptions shall follow the stock." Dismissing for the moment the effect of an arbitrary legal liability, which must be respected and enforced when known, there is not, in view of the entire record in this case, an equitable consideration favorable to a recovery against these defendants. The present liabilities of the Nebraska corporation cannot truthfully be said to have accrued in consequence of, or with reliance upon, the former connection of these defendants with the enterprise from which sprang the present company. These facts are important as aiding in the solution of a legal proposition, urged by appellees, to the effect that this action cannot be maintained in Iowa, because it is brought by a receiver of a Nebraska corporation to enforce a provision of the law of that state; the claim being that such a proceeding can only be had as a result of comity between the states, and that the basis of such an exercise is that the citizens of the state granting it shall not be thereby prejudiced or injured. Admitting, for the sake of argument, the rule that comity controls as to the authority of plaintiff to sue in this state, and, as we have in effect said, the record leaves us without doubt that its exercise should be denied, because it would be in contravention of the rights of our citizens, and operate to their injury.

Upon the question of the absolute right of plaintiff to sue in this state, we are not without precedent in our own decisions; and while, in announcing a rule, we have recognized the fact of a conflict of authority, we are not persuaded by the argument in this case that a change should be made, or the rule modified. Stress is given in argument to the fact that the order of appointment in Nebraska gives to the receiver authority to bring suits in other states. That authority is valuable as an aid to secure the right to do so in the state where the privilege is sought, and is judiciously granted; but it is without efficiency to create such a right independent of sanction within the state. The case of Booth v. Clark, 17 How. 321, contains a somewhat exhaustive consideration of the question of the right of a receiver appointed in one state to bring a suit for the possession of property in another state, and it is there said: "He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property; none which can give, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the

judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek." An underlying thought of the rule seems to be that, within the jurisdiction of one's appointment as receiver, he is amenable in his official capacity to the courts, and he may exercise his authority under the law of the jurisdiction; while, in a foreign jurisdiction, the law does no more than to make the person entering it amenable to its laws, and in no way recognizes the official capacity. As a citizen in a jurisdiction foreign to his residence, he has a legal status, and is amenable to, and may invoke the protection of, the law. As an officer of a court from a foreign jurisdiction, he has, and is entitled to, no legal recognition, except as the courts may, in their discretion, grant it, because he is without the official obligation that he assumed in his own jurisdiction, and which is essential to a proper and safe exercise of such power. In Ayres v. Siebel, 82 Iowa, 347, 47 N. W. 989, we denied the right of a trustee, appointed by the court in Indiana, to sue and recover on a contract in this state; and in Parker v. Lamb & Sons, 99 Iowa, 265, 68 N. W. 686, we denied such a right to a receiver, and cited the Ayres-Siebel Case. In Parker v. Lamb & Sons, we quoted approvingly from High, Rec. § 289, as follows: "Upon the question of the territorial extent of a receiver's jurisdiction and power for the purpose of instituting actions connected with his receivership, the prevailing doctrine established by the supreme court of the United States, and sustained by the weight of authority in various states, is that the receiver has no extraterritorial jurisdiction or power of official action, and cannot go into a foreign state or jurisdiction, and there institute a suit for the recovery of demands due the person or estate subject to his receivership. His functions and powers, for the purpose of litigation, are held to be limited to the courts of the state in which he was appointed; and the principles of comity between states and nations which recognize the judicial decisions of one tribunal as conclusive on another do not apply to such a case, and will not warrant a receiver in bringing an action in a foreign court or jurisdiction." These authorities are broad and conclusive, and, unless we are to set them aside, are conclusive of this case. Counsel have shown great zeal and tact in presenting authorities more or less in point, and we acknowledge somewhat of a conflict, as we have done in other cases; but the weight of authority we regard as in line with our holdings, and we are not disposed to disturb them. Beach on Receivers (section 680) states the same rule, and cites Booth v. Clark, supra, from which we have quoted, and then says: "The rule thus laid down by the supreme court of the United States has been followed by other courts with essential unanimity, and can hardly be said to be seriously questioned." In Fitzgerald v. Construction Co. (Neb.) 59 N. W. 838, these authori

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