For Injury to Property resulting from Acts or Negligence of Company - As Warehouseman. such adjacent premises, and thereby only takes the risk of accident by fire and not of the company's negligence, yet if he is guilty of negli nary skill and care. 2. That the right to build and operate the bridge being certain, it carried with it all the incidental rights and powers necessary to the efficacious enjoyment thereof, in-gence himself in neglecting to plow around the cluding the right to construct necessary and suitable approaches to the bridge. 3. That it was competent and within the rightful power of the city council to grant the rights conferred by the ordinance. 4. That the construction of the bridge and approaches being thus authorized, the railroad were not liable for consequential damages resulting therefrom to a lot owner, in front of whose property an embankment had been thrown up in the proper construction of the bridge and approaches. Ibid. 175. Negligence question for the jury. In an action wherein damages are sought on account of injuries resulting to property from the negligence of defendant, the question of negligence is one of fact for the jury. Boggs v. The Chicago & North - Western R. R. Co.. 29 Iowa, 577. stacks, or in omitting such acts as would have protected the property and prevented the loss, this would be a case of contributory negligence, and he would not be entitled to recover of the company, though it were also guilty of negli gence in permitting an accumulation of dry grass and weeds along its track, in which the fire was ignited by sparks from the engine of a passing train. Ibid. 179. A railroad company is liable for damages resulting from fire, communicated by cinders emitted from an engine operated on its road, in consequence of the negligence of its servants, or a defect in the engine, or want of the best contrivances in use for the prevention or spread of fire. Jackson v. The Chicago & N. W. R. R. Co., 31 Iowa, 176. e. As warehouseman. 176. Liability for injuries from sparks. To entitle a plaintiff to recover of a railroad company damages on account of fire resulting from sparks emitted from one of its engines, the negligence of the company in the premises must be shown either directly, or by circumstances tending to establish it, such as the absence or imperfect condition of a spark arrester, the use of an excessive amount of steam, an unlawful rate of speed, or the like. The mere fact that the fire was occasioned by the sparks | Dubuque & Sioux City R. R. Co., 25 Iowa, 60. does not make a prima facie case against the company. The authorities on either side of the question collated. Gandy v. The Chciago & North-Western R. R. Co., 30 Iowa, 420, followed in McCummons v. The Same, 33 Ibid. 187. 180. When liability of a railway company as a carrier terminates. The liability of a railway company as a common carrier of freight terminates, and its responsibility as a warehouseman commences upon the arrival of the goods at the point of destination, and their deposit there in the warehouse of the company to await the convenience of the consignee. Francis v. The 181. rule applied. A railway company received and undertook to carry for F. certain goods from C., the place of shipment, to A., the place of delivery, and where F. resided. The goods arrived at A. on time, at about eight o'clock P. M.; but F. was not there to receive them, nor was he notified of their arrival; they were accordingly unloaded, and safely placed in the company's warehouse, separated and made ready for delivery. During the night the warehouse was burned, and the goods consumed with it. Held, that the company were not liable as common carriers. Ibid. 177. For a railroad company to allow dry grass, weeds and other combustible matter, which are the natural accumulations of the soil, to remain on the right of way, is not negligence per se; and the company would not be guilty of negligence and liable for losses resulting from fire occasioned by sparks, emitted from its engine, igniting such accumulations, unless such accumulations were such as would not have been permitted by a cautious or ordi- ferent rule might apply where the goods arrived narily prudent man on his own premises, if ex-out of time, and the consignee had been active posed to the same hazard. Keesee v. The Chicago & North-Western R. R. Co., 30 Iowa, 78. 178. While the owner of land along a railway has the right to stack his hay or grain on 182. failure to arrive on time. A dif in endeavoring to find them, or to ascertain the probable time of their arrival, and no notice was given him by the company when they did arrive. Ibid. 183. The liability of a railway company, as a common carrier, for the baggage of a passenger, terminates upon the expiration of such reasonable time after its arrival at the place of destination as will enable the traveler to receive and take charge of the same. Mote v. The Chicago & North-Western R. R. Co., 27 Iowa, 22. 184. In determining what would be a reason able time, the customs of the company, the manner of transporting baggage from the station, and all the circumstances surrounding the case, should be considered. Ibid. RECEIPT. 1. In equity a settlement of accounts and the execution of a receipt will not be considered as conclusive upon the parties thereto when procured by fraudulent representations. Dyer v. The Executors of Jessup, 11 Iowa, 118. 2. Construction of. A receipt which prima facie covers all claims is open to explanation, and it is allowable to show that it was not intended to embrace a particular subject. Packer V. Packer, 24 Iowa, 21. 3. Evidence. A receipt in full, while subject to explanation, is admissible in the first instance to prove payment of all demands existing at its date. Smith v. The Cedar Falls & Minnesota R. R. Co., 30 Iowa, 244. 185. Where the baggage is unclaimed within a reasonable time after its arrival at the place of destination, it is the duty of the company to store it in a proper and secure place until called for; and when thus stored the liability of warehouseman attaches to the company, and its lia-pose of explaining the subject-matter, and conbility as carrier ceases. Ibid. sideration of a receipt. Kohn Bros. v. Zimmerman, 34 Iowa, 544. The obli 186. Duties as warehouseman. gation of the company as a warehouseman is to take common and reasonable care of the property intrusted to its charge, and exercise to ward it such diligence as men usually exert in respect to their own It would be liable for theft if it were the result of a want of proper care. Ibid.; Warner v. The B. & M. R. R. Co., 22 Ibid. 166. concerns. 4. Parol evidence is admissible for the pur 5. Application of the rule. Where, during the pendency of an action, a receipt in full of plaintiff's claim was executed by him to defendant in consideration of the receipt of a less sum than was due and the payment of defendant of "all of the expenses, if any, in the case," it was held, that parol evidence was admissible for the purpose of showing what expenses were contemplated by the terms used, and as to whether it included attorney's fees, or only ordinary costs. Ibid. 6. Estoppel. Held, also, that the giving of the receipt, upon the consideration stated, estopped the plaintiffs from a further prosecution of the action. Ibid. 187. rule applied. The baggage of a traveler was not claimed after its arrival at the point of destination. After remaining on the platform for several hours, it was removed by the station-agent into a room, which was the only place for storing baggage connected with the station, and which was not a secure place for keeping such property, the door being so 7. When a receipt is given by a railroad comimperfectly fastened as to constitute no hinder-pany for goods before they are actually examance to any one desiring to enter, and the build-ined, it is prima facie evidence only of what it ing left without a watch. During the night the contained. The receiptor is not concluded from trunk was broken open and rifled. Held, that showing the actual condition of the property. the company were liable. Ibid. Porter v. The Chicago & North-Western R. R. See, further, Co., 20 Iowa, 73. COMMON CARRIER, Vol. I, p. RAPE. 172. See CRIMINAL LAW. REAL PROPERTY, See CONVEYANCE; EASEMENT. 8. While parol evidence is admissible for the purpose of explaining a receipt, this exception to the general rule, respecting the inadmissibility of such evidence, to vary the terms of a written instrument, must be strictly confined to instruments which are purely receipts, and will not be extended to an instrument which embraces, or is in its nature a contract. Stapleton v. King et al., 33 Iowa, 28. See COMMON CARRIERS; CONTRACT; EVIDENCE. RECEIVER. I. APPOINTMENT OF. II. POWERS AND DUTIES. III. COMPENSATION. IV. MISCELLANEOUS. I. APPOINTMENT OF. Appointment of. 1. A receiver will not be appointed in a cause when the controversy is upon a question of mere legal right, or when the right claimed may be asserted by a direct action at law, as for possession. It must also be made apparent upon the face of the showing that the applicant will recover on the final hearing. Cofer et al. v. Echersen, 6 Iowa, 503. 2. The appointment of a receiver may be made upon the petition of a party in interest, showing a probable right to the property in controversy, or to a portion thereof, and that it is in danger of being lost or materially injured or impaired. Saylor v. Mockbie, 9 Iowa, 209. 3. Partnership affairs. The district court has power to appoint a receiver to take charge of partnership assets, to collect debts and convert property into money, and to exercise general control over the same, under the direction of the court. Ibid. 4. To entitle one claiming to be a partner to the appointment of a receiver to wind up the affairs of the concern, it must appear that there was a completed partnership, at least so far as to entitle him to a participation in the profits. An agreement of partnership which has not been executed to this extent is not sufficient. Hobart v. Ballard, 31 Iowa, 521. 5. Rights of third persons. It is competent for a court of chancery, by an interlocutory order, to take possession of property which is the subject of litigation pending the proceeding; but when the rights of third persons, in no manner parties to the suit, and who have purchased in good faith, have intervened, such power should not be exercised. Levi v. Karrick et al.. 13 Iowa, 344. 6. Soldiers' continuance act. under deeds of trust, mortgages or judgments. Adair et al. v. Wright, 16 Iowa, 385. 7. Foreclosure of mortgage. The appointment of receiver to take charge of mortgaged property after a final decree in foreclosure is unusual, and, if allowable, should be supported by a strong showing of facts. Ibid. 8. Mortgaged premises. A receiver will not be appointed on the application of a mortgagee to take possession of the mortgaged premises, where it does not clearly appear that the whole mortgaged premises are insufficient in value to pay the debt, or that the court should take control of the estate to protect the rights of a party who has a clear strong claim against it. Callanan & Ingham v. Shaw et al., 19 Iowa, 183; Adair v. Wright, supra. 9. In vacation. A judge of the district court has power in vacation, under section 3419 of the Revision, to appoint a receiver in a case where it is proper for such appointment to be made. French et al. v. Gifford et al., 30 Iowa, 148. 10. Appointment without notice. To justify the appointment of a receiver in such case, without notice to the opposite party, the particular facts and circumstances rendering such a course proper should be set forth in the petition. Ibid. 11. Application of the rule. In an application on the part of certain stockholders of a bank for the appointment of a receiver, to take into his possession the books, papers and assets of the bank, the petition alleged that “the plaintiffs verily believe that if notice of this application be given to the defendant, the books, records and papers of said bank will be so falsified or spirited away that they cannot ascertain the frauds. Held, that the allegations were not sufficient to justify the appointment of a receiver without notice. Ibid. 12. Parties. In a proceeding of this character the corporation itself is a necessary party, as well as the officers and those whose action is complained of. Ibid. Under the facts of the present When the 13. Bank. defendant in a foreclosure proceeding is in the case, detailed in the opinion, it was held, that military service of the United States, an order the appointment of a receiver, on the appli appointing a receiver to take charge of the cation of certain stockholders in a bank, alleging mortgaged property violates the spirit and in- mismanagement and fraud on the part of certain tendment of the act approved April 7, 1862, ex-officers and stockholders, to take possession of empting the property of volunteers from sale the books and assets of the corporation, and Powers and Duties - Compensation - Miscellaneous Matters - Correction of Records. the issuing of an injunction to prevent an election of officers, were unauthorized. Ibid. RECOGNIZANCE. See BAIL; BASTARDY. II. POWERS AND DUTIES. RECORD. 1. Judicial records: parol evidence. The record of the district court imports absolute 14. Property restored. When property placed in the hands of a receiver as partnership assets is found upon the hearing to be the individual property of one of the copartners, it will be restored to the owner. Saylor v. Mock-verity and cannot be impeached by extrinsic bie, 9 Iowa, 209. 15. Power construed. Where certain "mills and block" were committed to the care of a receiver, it was held, that he was thereby authorized to prosecute an action relating to a private wharf which was connected therewith, and which was primarily and principally constructed for the purpose of more conveniently carrying on said mills. Grant, receiver, v. The City of Davenport, 18 Iowa, 179. 16. General rule. As a general rule, a receiver has no powers except those conferred upon him by the order of his appointment. Grant, receiver, v. The City of Davenport, 18 Iowa, 179. III. COMPENSATION. 17. Compensation: costs. The rule that the compensation of a receiver appointed to take charge of the assets and wind up the affairs of a corporation or partnership should be retained from and paid out of the funds coming into his hands, generally applies to those cases where the receiver closes up the business and settles his accounts in pursuance of his appointment, and not to cases where the order appointing the receiver is set aside as improperly made, before such time. French et al. v. Gifford et al., 31 Iowa, 428. IV. MISCELLANEOUS MATTERS. 18. Vacation of order and foreclosure of mortgage. Where the evidence showed that the mortgaged property was not going to waste or in need of repairs, but that it was in a comparatively good state of preservation, it was held that the order appointing a receiver should be vacated. Adair et al. v. Wright, 16 Iowa, 385. 19. Damages. Where a plaintiff at whose instance a receiver was appointed to take charge of personal property, acted in good faith, upon probable cause, he is not liable for injuries done to the property while in the hands of such receiver. Kaiser v. Keller, 21 Iowa, 95. EQUITY; PARTNERSHIP. affidavits. Farley, Norris & Co. v. Budd et al., 14 Iowa, 289. See Glenn v. Maloney, 4 Ibid. Co., 20 Ibid. 347; and see generally, relative to 317; Ney v. The Dubuque & Sioux City R. R. parol evidence in respect to judicial records, title EVIDENCE; sub-title PAROL EVIDENCE —“e. Relative to judicial records," vol. 1, p. 458. 2. Correction of records. As to the cor rection of court records and generally, see title COURTS, vol. 1, p. 285, § 1, et seq. 3. Records as evidence. As to the admissibility and weight of records in evidence, see title EVIDENCE; sub-title DOCUMENTARY EVIDENCE-"d. Records," vol. 1, p. 467. 4. Contents of lost records. As to manner of showing contents of lost record, see EVIDENCE, § 338, et seq., vol. 1, p. 467. 5. Family records. As to the admissibility of family records, see EVIDENCE, $341, et seq., vol. 1, p. 468. 6. Deed and mortgage record. As to the recording of deeds, mortgages and other instruments, and their admissibility, see CONVEYANCE; sub-title RECORDING ACT, vol. 1, p. 258. 7. Record on appeal. See title APPEAL, and particularly sub-title thereof, APPEALS TO SUPREME COURT · -"(1) The Record," vol. 1, p. 55; also title PRACTICE, sub-title ON APPEAL TO SUPREME COURT, ante. 3. As to what constitutes the record in a cause, see EXCEPTIONS AND BILLS OF EXCEPTIONS, § 21, et seq., vol. 1, p. 496, and references contained in last section. 9. Fee-book. The fee-book, under the statute, may become a part of a record in a cause; but unless the fee-bill has been made up under the direction of the court, it is merely a record of the court proceedings. Yeager v. Circle, 1 G. Gr. 438. REDEMPTION. See See JUDICIAL SALES; MORTGAGES AND DEEDS Order of Reference - Report. REFERENCE OF ACTIONS. I. ORDER OF REFERENCE. II. REPORT. III. REVIEW, APPEALS, ETC. I. ORDER OF REFERENCE. 1. Practice: reference. The issues in an action commenced under the Code of 1851 were referred to a referee, under paragraph 3090 of the Revision of 1860, against the objections of one of the parties: it was held that the reference could be made only in accordance with the provisions of the Code of 1851, and was therefore erroneous. The State of Iowa v. Inskeep, 12 Iowa, 266. 2. The reference of an issue of fact to a jury is not a matter of right, but may be granted in the discretion of the chancellor. McDaniels v. Marrygold, 2 Iowa, 500; Hall v. Doran, 6 Ibid. 438; White v. Hampton, 18 Ibid. 238; see, also, Chamberlain et al. v. Jappiers et al., 11 Ibid. 513; Vandall v. Vandall, 13 Ibid. 247. 3. Without consent: right of trial by jury. The district court has no power, under section 3090 of the Revision, to order a reference where the parties do not consent thereto, in cases not cognizable in courts of equity. The exercise of this power, under such circumstances, would be a violation of the right of trial by jury guarantied by the constitution. McMartin v. Bingham, 27 Iowa, 234. II. REPORT. 4. Acquiescence. The report of a referee should not be set aside on the ground that the reference was to but one person when it should have been to three, if it appear that no objection to such reference was made at the time, and that the party complaining appeared before the referee and submitted the cause on his part. McShane v. Gray et al., 13 Iowa, 504. 5. It is competent for the court to require a referee to state the facts found as the predicate for the final judgment; but in the absence of such requirement a general finding will be sufficient. Ibid. 6. Judgment on report. When a referee in his report sustained the demand of plaintiff and rejected the entire defense set up by the defendant, without stating the exact sum due the plaintiff, and also reported the entire evi dence to the district court, it was held that the court did not err in assessing the sum due to the plaintiff from defendant, and in rendering judgment thereon. Drath v. Deitz, 15 Iowa, 436. 7. Set aside for uncertainty. In an action upon an account, the statute of limitations was one of the defenses set up; the report of the referee was so uncertain that it was impossible to ascertain therefrom when the limitation in that case commenced to run. Held, that it should be set aside for uncertainty. Doyle v. Reiley, 18 Iowa, 108. 8. The finding of a referee and the verdict of a jury stand on the same ground, and will not be disturbed unless manifestly against evidence. Whicher & Thompson v. Steamboat Ewing, 21 Iowa, 240; and title NEW TRIAL, ante. 9. Finding in ordinary and equitable actions. In ordinary actions the finding of a referee has the effect of a special verdict by a jury, and will be disregarded only where palpably against the weight of evidence; but in equitable ac tions triable by the first method, it is the duty of the court to adjudicate the case upon the evidence, and not alone upon a finding of facts made by the referee. Wilgus & Ewing v. Get ting & Giddings, 21 Iowa, 177. 10. Form of report. An order referring & chancery cause was as follows: "On motion and consent, this cause is referred to S. H. L., as commissioner, to examine and report his conclusions under the rules of practice of this court." Held, that the commissioner was not required to write out and report evidence of each witness in the language in which it was submitted, and that the statement of his conclu sion drawn from the evidence was sufficient. Byington v. Hampton et al., 13 Iowa, 22. 11. Affidavit of referee. Objection was made that the report of the referee, to whom an action was referred, was not accompanied by the affidavit or oath for the faithful performance of his duty, as prescribed by section 3100 of the Revision. Held, that evidence that it was made, but afterward lost, showed a sufficient compliance with the statute. Sears v. Sellest, 28 Iowa, 501. 12. Findings upon an account: contract: practice. The report of a referee in an action upon an account, finding that several items thereof were furnished under a contract be |