1882; and the widow consented to take and was paid in money the value of her dower interest in the amount remaining after the payment of mortgage liens. The premises were sold for $3,824.80, and after payment of preferred liens, dower and costs, there remains about $1,000.00 of the proceeds of the sale, and the widow on the 17th of June 1882, files herein her motion asking that she may be allowed the sum of $500.00 out of the proceeds of said sale in lieu of a homestead. The claim of the plaintiff herein is based upon Sections 5440, Revised Statute which provides that: "When a homestead is charged with liens, some of which as against the head of the family, or the wife, preclude the allowance of a homestead to either of them, and other of such liens do not preclude such allowance, and a sale of such homestead is had, then, after the payment, out of the proceeds of such sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application, in person, or by agent or attorney."

It is further claimed by the plaintiff that under Section 5435, Revised Statute she is the head of a family and as such entitled to a homestead exemption. This section provides that: "Husband and wife living together, a widow or a widower living with an unmarried daughter, oran unmarried minor son, may hold exempt from sale, on judgment or order, a family homestead not exceeding one thousand dollars in value; and the husband, or, in case of his refusal, the wife, shall have the right to make the demand therefor; but neither can make such demand if the other has a homestead."

The rights of the parties in interest in this case have not been made perfectly clear by the Statutes referred to, nor by any precedents that, have been established by decision of the higher courts, that I have been able to find, and it seems to be necessary to interpret this and other parts of the statutes relating to homesteads as they apply to the particular case on hearing. It would seem that Section 5435 was designed particularly for the families of judgment debtors, and to preserve for them a home, and that any such debtor might assert this claim whether the debtor was the head of a family, or a widow or widower with unmarried daughter or minor son, as against the claim of their creditors, on judgment or order against their own property, and in accordance with Section 5440 might claim the $500 out of the proceeds of such a sale if the homestead could not be set off by metes and bounds, and from the particular manner in which these sections are drawn I am led to think they apply only to judgment debtors, and their own property. I am still further confirmed in this opinion from the fact that the statutes make special provision for a widow and minor children (Sec. 6038 R. S.) exempting for their benefit all articles necessary for housekeeping furniture, books, wearing apparel, one cow or money to buy one with, and further [Sec. 4188 R. S.] gives her the use of the

Mansion House for one year and provides [Sec. 6040-41] for an allowance for the support of the widow for one year: an allowance which is usualy a very liberal one; The widow is further entitled to her dower in all the realty a right from which she cannot be debarred but by her own act and in which she is fully protected as against the creditors of her deceased husband.

But the Statutes go further and make a provision especially for such a case as this one [Sec. 543738] [a provision that would be entirely unnecessary if the Statutes upon which this claim is based were applicable and give the right of homestead exemption to a widow.] It is in these Sections provided that, "on petition of executors or administrators to sell to pay the debts, the lands of a decedent who has left a widow and a minor child unmarried and composing part of the decedent's family at the time of his death, the appraiser shall proceed to set apart a homestead as provided in the next section etc." Sec. 5438 provides that" on application of the debtor, his wife, agent, or attorney " [and I presume in this case the widow] at any time before sale, the officer, executing any suit founded on judgment or order shall cause the appraiser to set off by mets and bounds a homestead not exceeding $1000 in value" etc.

Under this provision the family get the use of the homestead for a limited period, until the minor was either married, dead, or of age, and under the present law (79 O. L. 107) during the life time of the widow or unmarried minor, and the decisions are positive that at the expiration of this time the property reverts to the heirs. I believe the only right to such a homestead is given by the two sections refered to, and can only be given to widows upon demand before sale. and in the manner prescribed therein.

That the only rights a widow has in the estate of her deceased husband, are the statutory allowances, her years support, her distributive share of his personalty the use of the mansion house for a year, a homestead as prescribed in section 5437 if it can be had, and her dower interest in his realty; that she then as a widow would be entitled to the benefits arising from her own property to be derived from section 5435-40. Further that if the homestead was charged with liens which precluded the assignment of a homestead in the manner prescribed by section 5437-38 she would not be entitled to anything in lieu of it. It cannot be claimed that a widow would be entitled to the benefits to be derived from the provisions of both of the sections referred to(5435 and 5437) and it would seem that the latter was enacted expressly to provide for cases not covered by the former, and that the claim of a widow to a homestead out of her husbands estate, depends upon that section alone.

The decision referred to by counsel in O. S. R. vol. 29 page 569 although not just such a case as this, covers points that are applicable to this case, and confirms the opinion of this court in the interpretation of section 5435.

Now had it been possible under section 5437-38

to have assigned to the widow of Richard Martin a homestead not exceeding in value $1000 out of the premises sold, it would have been unquestionably their right to have had it so assigned. Owing to certain mortgage liens this could not be done, and the widow loses this right.

She has had all her statutory rights, her $450 for one year's support, her dower interest in this property sold and there not having been a possibility of assigning her by metes and bounds the homestead of $1000, the court is of the opinion that she cannot require it by any other method or means, than those specially presented by the statutes; that her homestead claim is of very different character and not so valuable as that claimed under the section of the statutes upon which the motion is based, this being the use only for a period of years, and in the case of a judgment debtor the $500 becoming absolutely her property; that the widow having received her dower has been paid all her interest in this property and that she is not entitled to $500,00 exemption in lieu of a homestead.

Motion overruled.

LIMITATIONS-COMPETENT WITNESS, -MORAL CHARACTER.

SUPREME COURT OF IOWA.

STATE OF IOWA v. McINTIRE.

June 9, 1882. The statute of limitations must be specially pleaded. That clause of the statute of limitations in relation to criminal offenses which reads, "and no period during which the party charged was not usually and publicly resident within the state is a part of the limitation," applies equally to all cases.

The wife of a convict serving out his period of imprisonment in the penitentiary is not from this circumstance alone incompetent as a witness to corroborate the evidence of an accomplice. Her connection with the convict is a matter for the consideration of the jury as to whether she was worthy of belief.

The moral character of a criminal of long criminal practice is not essentially different from that of a new beginner in crime.

Where there is no material difference between the instructions given and those offered, the refusal to give the instruction offered is not error.

The indictment was found and presented in September, 1881, and charged that defendant and another person, on the thirtieth day of August, 1877, did steal, take, and carry away two horses, "and that said defendants have been non-residents of Iowa over two years since said taking." A demurrer to the indictment, on the ground the offence charged was barred by the statute, was overruled. There was a plea of not guilty; verdict, guilty; judgment; and the defendant appeals:

SEEVERS, C. J.

1. It has been held the defence of the statute of limitations cannot be raised by demurrer, instructions, or motion for a new trial, but that the same must be specially pleaded. State v. Hussey, 7 Iowa, 409; State v. Groom, 10 Iowa, 308. As, however, the case seems to have been

tried in the court below upon the theory it could be thus raised, for the purposes of the case it will be conceded. The statute provides as to offences of this character that an indictment must be found within three years after the commission of the offence, and not afterwards. Code, § 4167. "If, when the offence is committed, the defendant is out of the state, the indictment or prosecution may be found or commenced within the time herein limited after his coming into the state, and no period during which the party charged was not usually and publicly resident within the state is a part of the limitation." Code, § 4169. It is insisted the last clause of the section just quoted must be restricted to the offence contemplated in the first part of said section. But the language used is general and applies equally to all cases. We therefore see no reason why it should be limited to any particular class of cases.

2. The principal evidence relied on by the state was that of an accomplice; and it is urged he was not corroborated as required by statute. The evidence of Mary Stevens, if believed by the jury, was clearly sufficient. Counsel for appellant do not claim otherwise, but it is said she was also an accomplice. There is no evidence tending to show that she was. She is the wife of Frank Stevens, who is in the penitentiary, but for what crime does not appear. There is no evidence tending to show he aided or had knowledge of the crime charged in the indictment. We therefore see no reason why the evidence of his wife may not be sufficient as corroborating evidence. Her connection with the convict, Stevens, was a matter for the consideration of the jury. It was for them to say whether she was worthy of belief. If she was, the corroboration is sufficient.

3. The accomplice, when on the stand as a witness, admitted he had been engaged in horse stealing, whereupon counsel for the defendant asked the witness, "How long have you been engaged in horse stealing?" An objection to the question was sustained. It is urged this was error, because the proposed evidence was competent as tending to show the moral character of the witness. We are not prepared to admit the moral character of a person who has been engaged in stealing for years is any worse than that of the beginner. The former may be more expert and have greater knowledge of the profession; but there is no essential difference in the moral character of each. The defendant was not prejudiced by the action of the court.

4. Complaint is made of the refusal to gave two instructions asked by defendant. We have carefully compared the instructions refused, with those given, and we are unable to discover any material difference between them. Nor has counsel for appellant called our attention to any substantial difference. It was not error, therefore, to refuse the instructions asked. Complaint is made in a general way of the instruc tions of the court. We are united in the opin

ion the charge of the court is clearly correct. The evidence sustains the verdict. Affirmed.

Digest of Decisions.

MICHIGAN.

(Supreme Court)

TWIST V. BABCOCK. June 14, 1882.

A transfer of personalty in the nature of a bequest cannot be set aside merely because it shows an unnatural disposition on the donor's part and is wrong in morals, so long as there is no evidence that it was brought about by fraud or undue influence and that the grantor was of a sufficiently sound mind to dispose of his property.

Ăn heir at law has a right to know what disposition has been made of the estate and is justified in filing a bill to set aside deeds and transfers made by the ancestor where there is good reason to believe that they were procured by fraud or undue influence or that he was mentally incompetent; especially where the deeds have been kept intentionally from complainant's inspection.

Costs of the trial court may be granted complainant even while denying relief in a proceeding to set aside transfers which defendant's conduct had given good reason to think had been fraudulently procured.

HOPE'S APPEAL June 14, 1882.

Where a will is contested on the ground that there was a later will, the existence of which proponents deny, the proponents can hardly object to parol evidence of its contents on the ground that the alleged will itself is the best evidence.

Judgments cannot be reversed for errors that have not been excepted to.

Evidence of declarations made by a decedent and tending to show a change of mind in regard to the disposal of his property and an actual alteration therefor are admissible, in proceedings to contest his will, to corroborate the testimony of a witness as to the existence and contents of a later will; and the rejection of such evidence is irreconcilable with the admission of evidence offered by the proponents to disprove such testimony, and is prejudicial to the contestants.

IOWA.

(Supreme Court.)

FULLER v. LENDRUM, SHERIFF, AND ANOTHER, ADM'R. APRIL 24,1882.

ment creditor, and execution was issued on such judgment 18 years after its rendition, it will be assumed, upon a preponderance of the evidence, that the party was discharged from the judgment.

Where a party neither gains nor loses anything by the result of a suit, he is not disqualified as a witness on the ground of interest.

MINNESOTA.

(Supreme Court.)

MUUS v. MUUS. MAY 5, 1882.

Husband and Wife-Domicile-While a husband and wife were domiciled in this state the wife inherited property from her father in Norway, which, in form of money, was transmitted to this country. Held, that the rights of the husband and wife in respect to such property are determined by the laws of this state and not by those of Norway.

More than six years after the husband had, with the knowledge of the wife, received such money, she commenced action against him for an accounting and for the recovery of the money. It appeared that the husband had kept, and at all times treated and claimed, the property as his own. No other facts being shown by the plaintiff to avoid the statute of limitations, a recovery was correctly denied. A recovery by the wife of other money received by the husband less than six years before action brought, sustained.

ILLINOIS.

(Supreme Court.)

JAMES R. LOCKIE V. THE MUTUAL UNION TELEGRAPH COMPANY. June 21, 1882.

1. Eminent Domain-Rights acquired by condemnation for telegraph purposes.-A telegraph company, by a judgment condemning land for its use under the Eminent Domain Act, does not acquire the fee to the land, or the right to use it for any other purpose than to erect telegraph poles, and suspend wires upon them, and maintain and repair the same, and use the structure for telegraph purposes. This, of course, gives the company the right at all times, when necessary, to construct or to repair the line, to enter upon the strip condemned, doing as little damage as possible. The company can not cultivate such strip, or take exclusive possession of it, or enjoy it for any other purpose. The only exclusive right of occupation the company acquires is the ground occupied by the poles erected for telegraph purposes.

2. Same-Width of strip that may be acquired.-The statute does not designate the width of the strip of land that may be condemned for telegraph purposes, but only authorizes such companies to acquire such an amount of land as may be necessary; and where only one line of poles is specified in the petition, and the evidence does not show that a half a rod in width is an unreasonable amount of land, the judgment condemning that much of the land will be sustained, and will be construed not to authorize the erection of but one set of poles.

THE CHICAGO CITY RAILWAY COMPANY v. CATHARINE MCMAHON. June 21, 1882.

1. Evidence-Attempt to suppress evidence or influence a witness.-On the trial of an action on the case brought

witness against the company, or to influence his evidence in favor of the company. This was objec ed as no part of the res gesta. Held, that the evidence was proper though not a part of the res gesta.

2. On the trial of a case it may be shown that a party has destroyed or suppressed material evidence, or has fabricated such evidence, as it implies an admission that he has no right to recover, if the case is tried on the evidence as it exists.

3. Master and Servant-Liability for wrongful act of servant in the scope of his employment.-when a clerk of a city railway company has assigned to him the general and special duty of looking for and arranging the evidence in cases where the company is sued by persons injured or claiming to be injured by the carelessness of those intrusted with the management and operation of its street cars, and is empowered generally to perform that duty without special directions, with general authority to use his own judgment in the performance of his duties, if he, in looking up the evidence in the case, wrongfully and without authority offers money to a witness to keep him from testifying against the company, or to influence his testimony, the company must be held responsible for his act, and it is proper evidence against the company.

3. The master is liable for, not only the careless and negligent acts, but also for the willful and malicious acts of his servant while acting within the scope of his duty or employment. This rule is well recognized in this State.

CONTRACTS BY CORRESPONDENCE.

With the vast growth of the commercial interests of the country during the last fifty years the subject of contracts entered into by means of correspondence has become of very great importance. A large number of decisions, many of them conflicting, have accumulated. The difficulty in these cases appears to have grown out of an attempt to apply the old idea of mutual assent necessary to a contract to a new state of facts, arising under circumstances entirely different. It is customary to say that before there can be a contract, the minds of the parties must meet on some particular proposition with knowledge that they have met. This is true where the parties are personally present, but it can be true only in a modified sense where the parties are personally present, but resort to the mail as a means of communication. Under such circumstances a strict and literal interpretation of the maxim is impossible. We have attempted to reduce the law on the subject to three principal propositions, now so generally acknowledged that we may call them rules: (1) As to when the contract is completed. (2.) As to the power of recall. (3.) As to what constitutes a sufficient acceptance to bind the parties.

RULE 1. When an offer has been made, and a letter of acceptance mailed within a reasonable time the contract is complete. The adjudications upon this question begin with the case of Adams v. Lindsell, 1 Barn. & Ald., 681, decided in the court of King's Bench in 1818. The defendants were dealers in wool at the town of St. Ives, and the plaintiffs were woolen manufacturers at Broomgrove. On the second day of September, 1817, the defendants wrote and sent out the following letter to the plaintiffs: "We now offer you eight hundred tods of weather fleeces of good, fair quality of our county wool, at 35s 6d per tod, to be delivered at Liecester, and to be weighed up

by our agent in fourteen days, receiving your answer in course of post." The letter, through the fault of the defendant, was misdirected, and did not reach its destination until September 5, when an answer accepting the terms was dispatched. This letter reached the defendants September 9. But on the 8th the defendants, not having received an answer on the 7th, as they should have, "in course of post," had their letter been properly directed (Mactier v. Frith, 6 Wend, 103,) sold the wool to another party. Upon these facts the defendants argued that there was no contract, as there could be none until the letter of acceptance was received by them. As they had received no answer in due course of post, they had the right to withdraw their offer. By the sale of the wool to other parties they evinced their intention of withdrawing the proposition made the plaintiff before they received the letter of acceptance. Hence there was no simultaneous concurrence of the wills necessary to constitute a contract. The real question to be decided was whether the acceptance was complete when the letter of acceptance was deposited in the post. In passing upon this the court said: "If this were not true, no contract could ever be completed by post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till they had received the notification that the defendants had received their answer, and assented to it. And so this might go on ad infinitum. The defendants must be considered in law as making, during every instant of the time their letter was traveling, the same identical offer to the plaintiffs; and then the contract is completed by the acceptance of it by the latter. 1 Pick, 278. Then as to the delay in notifying the acceptance, that arises entirely from the mistakes of the defendants, and it must therefore be taken as against them."

Four years later, in 1822, the Case of McCullough v. The Eagle Insurance Co., (1 Pick., 278), came before the Supreme Judicial Court of Massachusetts, and was decided directly contrary to the doctrine of Adams v. Lindsell. This case grew out of the following facts: On the 29th day of December, 1820, the plaintiff wrote from Kennebeck, Maine, to the defendants at Boston, asking for the terms upon which they would insure a certain brig and cargo from Martinico to the United States. On the first day of January the defendants replied, stating that they would take the risk at two and one-hali per cent. This letter was received and answered by the plaintiff January 3d, accepting the offer. But on the 2nd of January the defendants dispatched a letter in which they withdrew their offer, and refused the risk at any price. But the letter of acceptance was mailed on the 3d, before the receipt of the defendant's letter of revocation.

[Concluded next week.]