der the policy was sufficiently "connected with the subject of the action to be set up as a counter-claim under 2 of this section: Revere Fire Ins. Co. v. Chambers, 56-508. In an action to recover upon a promissory note, a counter-claim in the nature of an action for the possession of the note, for the purpose of cancellation, is proper: Sigler v. Hidy, 56-504. Although action on an attachment bond may be brought by way of counter-claim in the attachment proceeding (see $3017 and notes), this applies only to a case where the right of action for damages for the wrongful suing out of the attachment inured to the attachment defendant and was held by him at the SEC. 2663. The defendants to cross-bills or cross-actions brought by co-defendants, must be served with notice of the claim made against them: Thode r. Spofford, 17 N. W. Rep., 561. Where plaintiffs, brought action to set aside a guardian's deed to property held by defendant, and defend SEC. 2665. very instant it came into existence. Where such defendant had previously made an assignment of his property, held, that the right of action on the attachment bond inured to the assignee, and that a subsequent assignment thereof by the latter to the defendant would not enable defendant to set it up as a counter-claim under subdivision 3 of this section: Rumsey v. Robinson, 58-225. A counter-claim does not deny the cause of action or plaintiff's right to recover thereon. A defense denies the right to recover and shows either that plaintiff never had a right of action or that it is dis charged: Haywood v. Seeber, 61574. 716. ant by cross-petition against certain mortgagees of the property from plaintiff, sought to have such mortgages set aside, held that the mortgagees were properly brought in by cross-petition and their rights determined: Bunce v. Bunce, 59-533. 717. As a mere denial of affirmative matter not constituting a counterclaim is not permitted in a reply, such denial, if coupled with matter in confession and avoidance, will be disregarded and the reply will be regarded as containing nothing further than an admission and avoidance of the allegations of the answer, notwithstanding the provisions of § 2710. allowing inconsistent defenses to be stated in the same reply: Meadows v. Hawkeye Ins. Co., 17 N. W. Rep., 600. Where defendant in an action on a written contract of subscription set SEC. 2669. up want of consideration, held, that plaintiff might prove facts showing the incurring of expenses on the faith of such subscription, without having pleaded it in reply, such matter being in denial and not in confession and avoidance of the matter averred in the answer: University of Des Moines v. Livingston, 57-307. Where a defendant pleads a defense which avoids the cause of action, plaintiff cannot introduce evidence to show the waiver of such defense without having set up such waiver in the reply: Zinck v. Phoenix Ins. Co., 60–266. Where an affidavit was headed | of Rev. § 2913 are not retained, it is "State of Iowa, Delaware County,' and a signature with the addition "Notary Public" was authenticated with a seal, held that it was sufficient: Stone v. Miller, 60-243. It seems that since the provisions not necessary that the certificate to the affidavit show the name of the affiant. There is no such requirement of law as to affidavits not made to pleadings: Ibid. The rule that in order to establish | applicable in other civil cases where the truth of a charge imputing a the commission of a criminal act is crime as a defense in an action for in question: See notes in supplement slander, the crime must be proved to § 4428. beyond a reasonable doubt, is not 720. SEC. 2683. While a party interested in the | to be substituted as the defendant to subject-matter involved may unite the action in place of the original with the defendant in resisting the defendant: Britton v. D. M., Ö. & claim of the plaintiff, he cannot ask S. R. Co., 59-540. SEC. 2684. 721. An intervenor cannot be allowed | ceeding, and a continuance of the to tender an issue which can be tried cause for testimony: VanGorden v. only by a change in the form of pro- | Ormsby, 55-657. SEC. 2685. A party cannot, by one petition, intervene in several distinct and unconsolidated actions, nor can an agent make his principal a party to SEC. 2689. Where the amendment set up a distinct cause of action, which when pleaded, was barred by the statute of limitations, held, that it would not be considered as dating back to the date of the original petition, so as to avoid the bar: Van der Haar v. Van Domseler, 56–671. A demurrer may be amended Poweshiek Co. v. Cass Co., 18 N. W. Rep., 895. It is not error to allow an amendment after the conclusion of the testimony, and for the purpose of conforming the pleadings to the proof, even when such amendment changes the issue. If, after the amendment, the opposing party can make it appear that he is surprised, or is not prepared to meet the issue raised by the intervention by filing the petition in his (the agent's) name: Rosenbaum v. Adams, 61-382. the amendment, a continuance will be allowed at the cost of the other party. If such continuance is not applied for, the objection is waive 1: Thomas v. Town of Brooklyn, 58438. Held, error to refuse leave to plaintiff after the close of the arguments to file an amendment to his petit on for the purpose of conforming the allegations to the proofs: Tiffany v. Henderson, 57-490. Where suit was brought in the name of a township, held, that, although the township had no capacity to sue, the name of the township officer entitled to the possession of the money sued for might, on motion, be substituted as plaintiff and the action proceed: Wells v. Stomback. 59–376. A denial of an indebtedness to the | no issue: McIntosh v. Lee, 57–356. plaintiff in any sum whatever, raises SEC. 2713. 727. In an action founded upon tort, case, be required to be made more plaintiff cannot be required to attach specific in this respect under provisa bill of particulars of the items in- ions of § 2720: McDonald v. Barncluded in his claim for damages, al-hill, 58-669. though his petition may, in a proper 728. SEC. 2716. This section implies that where the [ 101; and see Steamboat, etc., v. Wilplaintiff or defendant is a corporation son, 11-479; Byington v. M. & M. or partnership, such averment of R. Co., Id., 502; Hard v. City of corporate or partnership capacity Decorah, 43–313. should be made: Sweet v. Ervin, 54– SEC. 2717. An answer of a defendant denying that it was or ever had been a corporation, etc., held, sufficiently specific: Folsom v. Star Union, etc., Line, 54-490. A general denial does not put in issue the fact of administratorship where it is generally averred: Mayes v. Turley, 60-407. 184 SEC. 2719. Immaterial matter is anything stated in the pleading which, if established, would not entitle the party to, or aid him in obtaining the relief demanded, or in sustaining the SEC. 2727. defense pleaded. Any party re quired to answer a pleading containing irrelevant matter is aggrieved thereby and may have it stricken out on motion: Johns v. Pattee, 55-665. 729. The averment of malice by plaint- | legation made in the reply only, iff should be made in the petition would not be sufficient: Jones v. or an amendment thereto. Such al- Marshall, 56-739. 730. SEC. 2730. [The word "denying," in the seventh line of this section is a misprint. It should be "deny."] Where a written assignment was not so incorporated into an answer as to render denial of signature under oath necessary, held, error to SEC. 2732. receive such assignment in evidence without proof of the signature: Hay v. Frazier, 49–454. 731. This section does not prohibit a defendant who has filed a plea in abatement which has been held bad on demurrer, from answering in bar: Winet v. Berryhill, 55-411. 732. SEC. 2740. Issues of fact in an action at law | relief, does not entitle him to a trial may be such as rest upon an equita- of the issue by equitable procedure: ble defense, and the fact that the Carey v. Gunnison, 17 N. W. Rep., party interposes such equitable de- 881. fense where he does not ask equitable SEC. 2741. The evidence in full is required in law actions only when, as an objection to the judgment, it is urged that the verdict is not supported by the testimony. Upon no other ques. tion would it be proper to take all the evidence to the supreme court on appeal. The supreme court will pass upon the correctness of instructions or rulings as to the admission or rejection of testimony when the bill of exceptions contains a statement that there was evidence tending to prove the facts to which the instructions are applicable, or states evidence, not necessarily in full, about which the question as to the admissibility of evidence arises. The issues in the case in determining the applicability of instructions and the competency and relevancy of the evidence are to be determined from the pleadings: Kelleher v. City of Keokuk, 60473. In order to determine whether prejudice resulted to appellant by reason of the exclusion of evidence, not only the questions, but the an swers, or the facts that they would tend to establish, should appear in the record. Unless prejudice be thus shown, the judgment cannot be disturbed on account of exclusion of evidence: Jenks v. Knott's Mexican Silver Mining Co., 58-549; and see cases in supplement to § 2836. 733. SEC. 2742. [19 G. A., ch. 35, repeals this section and substitutes and enacts a substitute therefor, with an additional section, as follows:] SEC. 2742. But in equitable actions, wherein issue of fact is joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party may, at pleasure, take his testimony or any part thereof, by deposition. All the evidence so taken shall be certified by the judge at any time within the time allowed for the appeal of said cause, and be made a part of the record, and go on appeal to the supreme court, which shall try the cause anew. SEC. 2. This act shall apply to all causes not already submitted to the supreme court, and any certificate heretofore made by the said trial judge within the six months allowed for appeal shall be deemed to be made within proper time. The substitute for the original section (17 G. A., ch. 145), held, applicable to the trial of a case commenced before the act was passed, but not tried until after it took effect: Bailey v. Malvin, 53-371. Where an equitable action was sent back, on appeal upon errors assigned, for a new trial, with permis sion to the parties to replead, and new pleadings were filed and a trial thereon was had after the repeal of § 2742 and the enactment of this substitute, held, that the method of securing trial de novo on appeal was not determined by that section, though it was in force when the firs trial was had: Cross v. B. & S. W. R. Co., 58-62. The taking of the testimony in short-hand, no transcript thereof being filed, is not a taking down "in writing": Godfrey v. McKean, 54 127. Where the certificate of the judge stated that the record contained all the evidence "introduced on the trial, held, that this was insufficient to show that it contained all the evidence offered, as required by this section: Taylor & Co. v. Kier, 54-645. So held, as to a certificate showing that the record contained all the evidence used on the trial: Jackson, 57-75. So held, also, as to a certificate that the record contained all the evidence "adduced," it further appearing from the record itself that in several instances evidence was offered and excluded which was not made part of the record: Tuttle v. Story County, 56-316. tified was all that was 66 offered, adduced and introduced,"” held sufficient: City of Marshalltown v. Forney, 61-578. So held, also, as to a certificate that the evidence certified is all the evidence offered in said trial, as well as the evidence introduced and admitted and used in the trial": Wood v. Wood, 61-256. A certificate that the evidence certified was "all the evidence submitted in said cause," held sufficient: Miller v. Wolf, 18 N. W. Rep., 889. A certificate not attached to any evidence, but merely showing the names of the witnesses, and the side upon which they were introduced, respectively, without referring to any testimony as taken in writing, held insufficient: Alexander v. McGrew, 57-237. Where the issues in the case are equitable, it will be presumed that it was tried as an equitable action, unless the record otherwise shows: Baldwin v. Davis, 18 N. W. Rep., 897. An action to test the validity of a will is not triable de novo on appeal: Kelsey v. Kelsey, 57–383. On trial de noro in the supreme court, the appellant, having secured a reversal, is entitled to have such Hart v. decree entered as the lower court should have entered upon the record as made: First National Bank of Davenport v. Baker, 60–132. A certificate that the evidence cer Where, by an agreement of the parties in an equity case, the facts are reduced to a statement in writing which takes the place of depositions, or oral testimony reduced to writing, an appeal and a trial de novo may be |