272. Judgment creditor may elect to take scrip. A judgment creditor of a corporation may elect, but is not compelled, to take in payment of his debt scrip or the ordinary evidences of indebtedness issued by such corporation. O8wald v. Thedinga et al., 17 Iowa, 13; The State ex rel. Clark, Dodge & Co. v. The City of Davenport, 12 Ibid. 335; Porter v. Thompson, 22 Ibid. 391.

273. Scrip issued as currency. Scrip issued by a municipal corporation in this State for the

MURDER.

See CRIMINAL LAW.

NATURALIZATION.

See ALIENS.

NAVIGATION.

RIVER.

City of Cedar Falls, 21 Iowa, 565.

Dively v.

274. Every contract made for or about any matter or thing which is prohibited and made unlawful by statute, is void; and a repeal of the prohibitory act does not render valid a contract made while it was in force and contrary to its provisions. Arguendo, Ibid.

275. warrants. Warrants drawn by the proper officers of a municipal corporation on the treasurer thereof, are not bills of exchange, but are, in legal effect, the promissory notes of the corporation. Clark v. The City of Des Moines, 19 Iowa, 199.

276.

scrip. When a municipal corporation, acting under the constitution of 1846, issued in payment of a bona fide indebtedness, scrip to circulate as money, after which the scrip was taken up by the issuance of ordinary warrants on the treasury thereof for the amount of the same, it was held, that the transaction could not be impeached by the corporation on the ground

that the scrip was illegal and void. Ibid.

277. Notice. The assignee of warrants drawn by the officers of a municipal corporation on the treasury thereof is bound, at his peril, to ascertain the nature and extent of the powers of such officers and of such corporation. Ibid.

278. Authority of city shown on the face of bonds. When bonds issued by a municipal corporation show upon their face the authority under which they are executed, and such authority is insufficient, they are void in the hands of any parties. Chamberlain et al. v. The City of Burlington et al., 19 Iowa, 395.

See COUNTY; HIGHWAY; DEDICATION; INJUNCTION; MANDAMUS.

NE EXEAT.

Equity. Upon the return of a writ of ne exeat if the matters charged in the bill are of an equitable character, the court may set aside the writ. Fitch v. Richardson, Mor. 245.

NEGLIGENCE.

1. Negligence consists in omitting to do or doing something which an ordinarily prudent man would not. Rusch v. The City of Daven port, 6 Iowa, 443.

2. Carelessness. The word "carelessness"

is not a legal term, but must be taken as equivalent to negligence. Dougherty v. Posegate, 3 Iowa, 89.

3. Negligently allowing fire to escape. Where a party willfully, carelessly or negli gently sets out fire, and it escapes into another's from his act; and it is not necessary, in order property, he is liable for the damages resulting to fix his liability, that the act should have been done with intent to injure the party complain ing. Jacobs v. Andrews, 4 Iowa, 506, following, Defrance v. Spencer, 2 G. Gr. 462; Hanlon v. Ingram, 3 Iowa, 81.

4. A person setting out a fire on his own premises, and using such care and diligence to prevent it from spreading, as a man of ordinary caution would employ to preserve his own property, is not liable for the damage it may do to the premises or property of others. Hanlon v. Ingram, 3 Iowa, 81; Harding v. Fahey, 1 G. Gr. 377.

5. As to liability of railroads for fires ignited by sparks from its engines, see title RAILROADS.

When parties may recover

Kesee v. The Chicago & N. W. R. R. Co., 30 Iowa, 78; Gandy v. The Same, Ibid. 420; Jackson v. The Same, 31 Ibid. 176; McCummons v. The Same, 33 Ibid. 187.

6. When party may recover. The plaintiff in an action for damages resulting from a casualty caused by the defendant, is entitled to recover if he could not have prevented the injury by the exercise of ordinary care and diligence; but he cannot recover for any enhancement of damages caused by his own want of care. Wright v. The Illinois and Mississippi Telegraph Co., 20 Iowa, 195; Donaldson v. The M. & M. R. R. Co., 18 Ibid. 280; Hanlon v. The City of Keokuk, 7 Ibid. 488.

7. What is not negligence. When there is a specific agreement to credit the amount paid on a note, and when the debtor has reason to believe, or no reason to doubt, that this has been done, and fails to defend upon the faith thereof, and in ignorance that an unjust account is sought to be recovered against him, he cannot justly be 'said to be negligent in not appearing and employing counsel, and may be relieved against the judgment if not paid, to the extent of the payments which should have been credited, and semble, that if the judgment has been compulsorily collected, the defendant may maintain assumpsit for the amount of which he has been thus defrauded. Doyle v. Reilly, 18 Iowa, 108.

8. Proximate results. The plaintiff's intestate was ejected by the defendant's conductor from a train of cars, and left, in the night time, in a state of intoxication, near the railroad track; several hours after, at a distance of half a mile from the station where he was displaced, he was killed by another train of cars. Held, that to entitle the plaintiff to recover, it should have been made to appear, to the satisfaction of the jury, that the killing was the natural or proximate result of the act of defendant's agent. Haley, admr. v. The Chicago & North Western Railway Company, 21 Iowa, 15.

9. Injuries from dog. In an action wherein damages were sought for injuries to the claim ant's horse by a dog which had followed the claimant and his team from the house of the owner of the dog, where the claimant was boarding, the court instructed the jury, in substance, that the claimant was guilty of negli gence if he suffered the dog to follow him,

when he might have prevented it." Held, that the instruction was erroneous. Shehan v. Cornwall, 29 Iowa, 99.

10. Contributory negligence. A party claiming to recover for the negligent or unskillful acts or conduct of another must not only show the negligence of defendant, but also that no negligence of his own contributed to the result Baird v. Morford, 29 Iowa, 531; Rusch v. The City of Davenport, 6 Ibid. 443; Hunt v. The Chi cago & N. W. R. R. Co., 25 Ibid. 363; Donaldson v. The M. & M. R. R. Co., 18 Ibid. 280; Hoben v. The B. & M. R. R. Co, 20 Ibid. 562: Sherman v. The Western Stage Co., 24 Ibid. 515; Haley v. The Chicago & N. W. R. R. Co., 21 Ibid. 15; McAunich v. The M. & M. Co., 20 Ibid. 338; Spencer v. The Ill. C. R. R. Co., 29 Ibid. 55 ; Kesee v. The Chicago & N. W. R. R. Co., 30 Ibid. 78; Dewey v. The Chicago & N. W. R. R. Co., 31 Ibid. 373; Artz v. The Chicago, R. I. & P. R. R. Co., 34 Ibid. 153; Dodge v. The B. C. R. & M. R. R. Co., Ibid. 276; Doggett v. The Ill. C. R. R. Co., Ibid. 284.

11. The doctrine of comparative negligence does not prevail here, but that of contributory negligence; and under this latter doctrine a plaintiff cannot recover of a railroad company for an injury to which his own negligence has contributed, notwithstanding the negligence of the company. O'Keefe, admx. v. The Chicago, Rock Island & Pacific R. R. Co., 32 Iowa, 467.

12. Threshing machine: contributory neglinence: act of 1866. Chapter 135, acts of the eleventh General Assembly, requiring the tumbling rods of threshing machines to be boxed, and providing that the person or persons owning or running such machine shall be liable in damages to any person injured by reason of neglect so to do, was not intended to change the general rule, applicable to such cases, that a plaintiff cannot recover for injuries resulting from the alleged negligence of the defendant, if his own negligence in any way contributed directly to the injury. The statute merely provides, that a failure to box as required is, per se, negligence on the part of the owner or persons running the machine, leaving the rule respecting contributory negligence on the part of the injured party to apply the same as in other cases. Reynolds v. Hindman et al., 32 Iowa, 146.

13. Liability of common carrier. Plaintiff's intestate was crossing a stream, seated on top of

of 1851, may grant a new trial as to one and not as to both of the said defendants. Gordon, adm., v. Pitt, 3 Iowa, 385.

6. As to one of several defendants. In an action ex delicto against several defendants, it is competent for the court, after the verdict, to grant a new trial to one or more of the defendants, if satisfied that they were improperly convicted, and render judgment upon the verdict as to the others. Terpenning v. Gallup et al., 8 Iowa, 74.

7. Woodward v. Horst, 10 Iowa, 120, as to rendering judgment on one part of a verdict and granting a new trial as to another part of the same, cited and approved. Dawson v. Wisner, 11 Iowa, 6.

8. Omission to render judgment. The neglect of the court below to render a judgment non obstante veredicto, on the ground of an insufficient plea, cannot be made available in error if a motion was not made for such a judgment and exception taken to the ruling of the court. Coonrod v. Benson, 2 G. Gr. 179.

9. Failure to render judgment for costs against either party is not ground for error on the appeal of the party against whom judgment was rendered below. Ross v. Hayne, 3 G. Gr. 211. 10. Non-conformity of judgment. A judgment in debt was rendered in an action of assumpsit, and as all other proceedings in the case are regular, it was held that the judgment should not be reversed, but should be corrected conformable to the action. Galloway et al. v. Trout, 2 G. Gr. 595.

11. Verdict contrary to law and instructions. A new trial should be granted if the verdict is contrary to law and the instructions of the court. Lloyd v. McClure, 2 Iowa, 139.

12. When case has not been fairly tried. A new trial will be granted when it appears that the merits of the case have not been justly tried, and that injustice has been done. Humphreys v. Hoyt, 4 G. Gr. 245.

Cross, 12 id. 66; Russ v. 8. B. War Eagle, 14 Ibid. 365.

14. When question is not one of discretion. When the court below, in granting or refusing a new trial, rules erroneously upon legal propositions it is as much a subject of revision as any other decision; and in such cases the granting or refusing of a motion for a new trial is not a question of discretion, but one strictly legal in its character, and to be determined upon the law applicable to the case. Stewart v. Ewbank, 3 Iowa, 191.

15. Where, after two verdicts in favor of the plaintiff, the second verdict was set aside and a new trial granted, on the ground supported by affidavits, that one of the jurors at a previous term of the court, in the presence of the affiants, expressed his opinions of the merits of the cause, and said that he believed that the defendant was a rascal, and ought to be made to pay every cent of the money sued for in said cause, and that if he was a juror thereon he would so find; and where there was nothing on the record to show that any of the jurors, at the time of being impanneled, were examined under oath or otherwise, or that the defendant was ignorant of the prejudice of the juror at the time he was sworn. Held, that the showing was insufficient to warrant the granting of a new trial. Ibid.

16. Prejudicial error must be shown. The supreme court will not interfere to grant a new trial unless clearly satisfied that there is error in the record to the prejudice of the appellant. Langworthy v. Myers et al., 4 Iowa, 18; MacKemer v. Benner, 1 G. Gr. 157; Lloyd v. McClure, 2 Ibid. 139; Peck v. Ayers, Mor. 493.

17. The supreme court will not reverse a judg ment of the court below upon a question of fact unless the testimony in the record clearly shows error. All legal presumptions are in favor of the ruling below. Davis v. Moffitt, 4 G. Gr. 92; Cook et al. v. The United States, 1 Ibid. 39.

18. Action of right: minor defendants. Where in an action of right, after trial and verdict for plaintiff, the defendants moved to arrest the judgment and for a new trial, for the reason that it appeared from the record "that a portion of the defendants were minors, and no guardian ad litem had been appointed by the court, to answer and defend for said minors, and no an