Lucas Thompson & Co. v. Pickel.

claim to this twenty acres as a homestead. In March, 1859, defendants made a mortgage to plaintiffs, upon the northwest forty, to secure this same debt, but which they claim should be set aside for some equities not now before us. In a letter written about that time to plaintiff, the said Pickel refers to the latter mortgage as upon his "homestead, and which he would not have given to any other person than said plaintiff." In a letter of March 28, 1861, he refers to this mortgage again as being upon his homestead, and insists that it (the homestead) shall be released. This was but two days before the commencement of this action.

Several witnesses, neighbors of defendants, speak of and refer to this forty as the homestead, and of an agreement made by plaintiff's agent, at the time and on the condition, that the mortgage should be given on the homestead forty. And to the same effect is the testimony of plaintiff's agent, who took the second mortgage. The plaintiff testifies that both Pickel and wife spoke of this forty to him as constituting their homestead, and that he never had any intimation to the contrary until after the commencement of this suit. In addition to all this, there is no testimony establishing the facts that at or prior to the making of this mortgage, July 7, 1858, this twenty acres constituted a part of the homestead, or was used and occupied as such. To use and occupy it as such after that time could not affect plaintiff's rights. If the husband had marked out and had recorded his homestead on the forty, prior to the giving of the mortgage, it would not be pretended that the wife could afterwards change the boundaries so as to affect the validity of the security. And if, instead of thus establishing it by visible monuments, he continually treats, uses and recognizes, or holds out to the world, a particular forty, upon which he resides, as such homestead, and third persons are influenced by such actions, we do not see why the wife is not equally concluded. She ought not to

McKenney & Delashmutt v. Hopkins.

be allowed years afterward, at her mere will, to change the boundaries so as to affect and impair a security good and valid at the time it was given.

Reversed.

MCKENNEY & DELASHMUTT V. HOPKINS.

1. Change of venue: JUSTICE'S COURT. An application for a change of venue made in a justice's court, after the commencement of the trial of the cause, was properly overruled.

2. Practice: JUSTICE'S COURT: BILL OF PARTICULARS. When the cause of action in a justice's court consists of a book account embracing several items, the defendant is entitled to a bill of particulars, or to have an entry of the several items entered upon the justice's docket, upon demanding the same.

Appeal from Jones District Court.

SATURDAY, JUNE 16.

J. L. Shean for the appellant.

C. R. Scott for the appellee.

LOWE, CH. J.-Plaintiff sued defendant on book account in the sum of $89.25.

At the trial the defendants demanded a bill of particulars of the account, before they should be required to plead. This the justice refused to order, for the reason that the plaintiff's book containing the account was then before them.

Afterwards the defendant applied for a change of venue, upon the ground that the justice was a material witness for them; application overruled for the alleged reason that the trial had commenced.

McKenney & Delashmutt v. Hopkins.

The plaintiffs being sworn testified that their account against defendant, as exhibited in their book of accounts, was just and correct, and that the balance still due and unpaid was $89.25, for which a judgment was rendered.

The defendant removed the cause to the District Court by writ of error, and there claimed that the refusal of the justice to require a bill of particulars to change the venue, and admitting the plaintiff's book, without first laying a foundation therefor, was severally erroneous, and the District Conrt so held, and reversed the judgment, remanded the same and fixed a day for a rehearing between the parties. The plaintiffs in turn claim that this was

error.

First. We remark that the proceedings do not show that the plaintiff's offered or attempted to offer the book of accounts as evidence in the case. There could not, therefore, be any necessity to lay a foundation for its introduction. The plaintiffs themselves were competent witnesses. They simply testified to the correctness of their account as charged in their books, and that the same was due and unpaid.

Second. On the subject of a change of venue from one justice to another, section 3875 says either party, before the trial is commenced, may have a change

1. CHANGE

OF VENUE:

justice's

of venue, etc. In this case the record shows court. that the application was made after the commencement of the trial. It was not error, therefore, to refuse the same.

justice's

Third. As to the assignment that the court erred in reversing the action of the justice in not requiring a bill 2. PRACTICE: of particulars of plaintiffs' account when decourt: bill manded; we reply, first, that such is the established statutory practice in the District Court. § 2918 of the Revision. Section 3858 provides that the procedure prescribed for the District Court, so far as the same is applicable, shall be observed in a justices court.

of particu

lars.

The State of Iowa v. Baughman.

To our minds there is a fitness and propriety, where the plaintiff's demand consists of various items, that he should furnish the defendant with a bill of particulars if the same is called for and insisted upon, or name the items so that the justice could enter them on his docket.

Not only that the defendant may be more particularly apprised for just what he is sued, but that he may thereby guard against a subsequent action for some or all of the same items of account. That the plaintiffs in this case had their book of accounts present for inspection, does not fully meet the reason or necessity of the requirement; for we can hardly suppose that it was their purpose to leave on file in the justice's office permanently such book of accounts, without which one and perhaps the chief reason of the rule would not be answered, namely, of preserving more fully the evidence of the whole cause of action, to the end that a future recovery may not be had for some part of the same. We do not perceive why the rule and the reason therefor do not exist with equal force in both courts.

If So, then it follows that it will not do for us to say that the District Court erred in holding the justice to the observance of the rule.

Affirmed.

THE STATE OF IOWA V. BAUGHMAN: SAME V. MUNZENMAIR: SAME V. BAHLER: SAME V. BENNETT: SAME V. NEWMAN.

1. Intoxicating liquors: INDICTMENT: NUISANCE: DUPLICITY. The offense of nuisance under section 1464, Revision of 1860, may be committed either by the manufacture, sale, or keeping with intent to sell, intoxicating liquors, contrary to law; and while an indictment is sufficient which charges the commission of the offense by either one of the unlawful acts, it is not bad for duplicity if it VOL. XX.-63.

Baughman.

2.

3.

4.

The State of Iowa v.

charges the offense to have been committed by two or all three of the specified unlawful acts.

—: FEDERAL LICENSE. A license granted by the United States to a retail liquor dealer affords no protection against the penalties imposed by the sale of intoxicating liquors in violation of the law of the State.

- PRESUMPTIVE EVIDENCE. Proof that the defendant sold intoxicating liquors in violation of law at the place charged in an indictment for nuisance, is sufficient to convict unless rebutted.

: CONSTITUTIONAL LAW: ACT OF CONGRESS. The prohibitory liquor law of the State of Iowa is not in conflict with the Constitution of the United States, or the act of congress approved July 16th, 1862, entitled "An act to provide interral revenue," &c. 5. -: REDUCTION OF FINES. The Supreme Court has power to modify the penalties and reduce the punishment imposed by the court below, but it will not exercise that power when the evidence upon which the Court below acted is not in the record.

Appeal from Polk District Court.

SATURDAY, JUNE 16.

THESE cases involve the same questions, and are submitted upon the same arguments. The defendants were severally indicted and tried for the crime of keeping a nuisance. They were severally found guilty. After the making and overruling of motions for new trials, to which exceptions were duly taken, judgments were entered on the verdict.

The defendants appeal.

J. M. Ellwood and Finch, Clark & Rice for the appellants.

F. E. Bissell, Attorney-General, for the State.

COLE, J.-I. It is insisted that the indictment charges two separate and distinct offenses; the one triable upon indictment, the other exclusively cognizable before justices of the peace.

1. INTOXI

CATING

LIQUORS:

indictment:

nuisance:

duplicity.

The indictments charge that the defendants "did willfully and unlawfully establish, continue and use a