such defense was raised and no evidence in support of that theory was before the court.

The fire was not communicated to the property destroyed, for which this action is brought, directly by defendant's engine; it was communicated to another elevator and thence to plaintiff's property. It is insisted that the injury suffered by plaintiff is the remote and consequential effect of the defendant's act, and no recovery can be had therefor. The rule that damages must be the direct and proximate result of the act complained of, and not the remote and consequential effects, is not the subject of dispute in the profession. But the application of the rule is the subject of constant disagreement in the authorities. Cases similar in facts with the one before us have been decided differently by the courts, It is impossible to reconcile the books upon this point, and arguments based upon reason could hardly be presented that would meet with general approbation. In our opinion, the injury sustained by the plaintiff is within the limits of proximate and direct results of the act of defendant, for which he may recover. Milwaukee & St. Paul R. Co. v. Kellogg, 4 Otto, 5 Cent. L. J. 305; Fent v. T. P. & W. Ry. Co., 59 Ill. 349; Kellogg v. The C. & N. W. R. Co., 26 Wis. 223; Perley v. Eastern R. Co., 98 Mass. 414. See Field on Damages, §§ 50, 664 and notes, for collection of authorities upon this point.

The defendant's counsel next maintain that the statute under which plaintiff's action is brought is unconstitutional. The question thus raised was carefully considered by this court, and the statute was sustained in a unanimous opinion in Rodemacher v. The Milwaukee & St. Paul R. Co., 41 Iowa, 297. The arguments upon which that decision is based are quite satisfactory, and need not be repeated.

An argument against the law is based upon the possible consequences that might result in the case of a fire communicated by a railroad engine consuming such great amount of property, that the company by the enforcement of the law would lose all its property. The statute, it is said, would thus be the means of the destruction of the corporation, under a power to be exercised only for its regulation. It would, therefore, it is claimed, destroy vested rights. The argument is based upon a case of supposed hardship. We may admit the possibility that such a case may; but it is no ground for holding the act void. The courts would fail utterly in the administration of justice if they were to enforce only such rules as in no conceivable case will work hardship. In truth, hardships in the administration of the law are constantly occurring. "Hard cases make bad law," is a familiar legal proverb. But "hard cases" never make bad law," except where judges modify fixed and established rules to suit the cases, or adopt new rules intended to mitigate their hardships. It is bad enough for "bad law" to be made for real "hard cases;" it would be much worse for judges to anticipate possible hard cases and suit their rulings thereto, rather than adapt them to the rights and obligations of the parties in the cases before the courts.

The question to be determined in passing upon the validity of this statute is this: Is it within the scope of the constitutional powers of the state? If so, the power assumed by the law may be exercised without regard to future consequences, even though they might be what counsel call the destruction of the property of a railroad corporation. The state has the authority to levy taxes for the protection of the rights of the people and its own existence. It may, if necessary, be exercised to the extent of condemning and appropriating by taxation all the property in the state. Shall we hesitate to enforce the power to tax on the ground of the disastrous consequences of the exercise of the power to its full extent, which, possibly, at some future day, may be felt by the people? The argument of counsel, in our opinion, is not based upon proper views of the powers of the state, and of the necessity of individuals and corporations submitting their property to the operation of laws intended for the public good, even though cases may possibly arise whereby, under the law, they would be deprived of their property.

It is lastly urged that the section of the code under which this action is brought is void, for want of constitutional enactment by the General Assembly. We will proceed to the consideration of this objection.

The constitution of the state, art. 3, p. 2. § 1, provides that the style of every statute shall be: "Be it enacted by the General Assembly of the state of Iowa." Art. 3, p. 2, § 29, is in these words:"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."

Section 1289, under which this action was prosecuted, is a part of Title X of the Code. This title was passed by the General Assembly as a separate act in adopting the Code. The same is true of each separate title-each was a distinct act. The title of this act-Title X of the Code as it appears upon the rolls, is this: "Title X. Of internal improvements. A bill for an act to revise, amend and codify the statutes in relation to internal improvements." The style of the act is as required by the constitution: "Be it enacted by the General Assembly of the state of Iowa." This title and style of acts are not printed in the collection of statutes called the "Code." It is insisted by defendant's counsel that the acts designated as Title X of the Code, violate the provision of the constitution above quoted, requiring each act to embrace but one subject and matters properly connected with it, to be expressed in the title. The history of the code and the legislation therein found is familiar, but to present more clearly our views we must briefly state it here.

The thirteenth General Assembly enacted a statute appointing commissioners to revise and codify existing statutes and recommend amendments thereto for the consideration of the succeeding General Assembly. Their report, in the

form of distinct acts, was the foundation of the code, being enacted after various changes and amendments introduced while it was pending before the legislature. In Title X, the various statutes upon the subject of railroads are revised and codified and amendments added thereto, either upon the recommendation of the commissioners, or upon action first had in the General Assembly. Among these amendments is the provision of section 1289, under which this section is prosecuted.

It is now argued by counsel for defendant that there are two subjects expressed in the title of the act in question-Title X, viz: 1. Revision and codification of the statutes in this branch of the law. 2. Amendments relating to the substance of the statutes constituting original provisions.

The object of the revision and codification of the statutes, as accomplished by the code, was the enactment of new statutes to supersede those before in force. We do not mean new provisions, necessarily different from those of former enactments, but new enactments, to take the place of existing statutes. The new statutes were either the same in substance and different in form and arrangement, or were changed, amended, and thus introduced in the code. To carry out this plan of codification all existing statutes, the subjects whereof are reviewed in this code, were repealed. Code, sec. 47. We thus have a new statute-Title X of the code-taking the place of existing enactments. The object of this statute was to present provisions on the subject of legislation therein contemplated which, while they were the same, or similar to, prior provisions, or were amendments thereto, or were new provisions, are presented in a new statute. The subject of this statute is internal improvements, which is plainly and directly expressed in the title. It is the leading, principal subject, and is so expressed by the very first words of the title of the act, viz: "Of internal improvements." The constitution declares that an act shall embrace but one subject, and the matters properly connected therewith. The matters properly connected with this subject need not be just here a subject of inquiry.

Counsel insist that the subject of the act is expressed in the words found in the title: "A bill for an act to revise, amend and codify the statutes in relation to internal improvements." It may be admitted that these words are a part of the title; they are not all of it. The other words, "of internal improvements," are not to be disregarded. The title of the act expresses these thoughts: "A statute treating of internal improvements, being a bill for an act revising, amending and codifying the statutes upon that subject." The subject is internal improvements; the other parts of the title are explanatory as to the origin and history of the statute. The title not only expresses the subject, but goes further. The words which express matter besides the subject, counsel rely upon as expressing the subject of the act. Herein is their error. But, if we are in error in holding that the revision, amendment and codification of statutes are of the subject of the act, it can not be claimed that they constitute the whole subject, or the main

and leading subject. They can be no more than subjects, matters connected with the subject of the act.

The subject of the act is, as we have seen, "Internal improvements." Railroads are termed internal improvements in the statutes of this state. See Revision 1860, Title XI; Code 1851, chap. 46. Provisions in regard to the construction of railroads may be said to have for their subject internal improvements. These roads are built, owned, and operated by corporations, clothed with certain rights, and charged with certain duties and liabilities under the statutes; these corporations, and their rights and liabilities, pertain to the building, ownership and operation of railroads. They are matters properly connected with internal improvements, and under the constitution, art. 3, p. 2, § 29, may be provided for in statutes upon the subject of railroad internal improvements.

But it is said there are a variety of matters in Title X of the code besides those pertaining to railroads, as provisions in regard to mill-dams, drains, ditches and water courses, telegraphs and the like. It is not necessary for us to inquire whether these matters relate to internal improvements; for if they do not this fact, under the section of the constitution just cited, will not defeat legislation which is upon the subject of the act.

The foregoing discussion disposes of all questions raised in this case. We are of the opinion that no error appears in the record. Affirmed.

SEEVERS, J., dissenting:

An important question determined in the foregoing opinion is, what is the proper construction of the last proviso in § 1289 of the code. From the conclusion reached I feel compelled to dissent. The question is not whether an absolute liability may be created, but whether it has been done. The constitutionality of the statute will be assumed. In order to arrive at a satisfactory conclusion, that portion of the section preceding the last proviso should be examined.

Where a railway company has the right to fence and does not do so, its liability for stock killed or injured is absolute, and does not depend in any respect on negligence in fact. The liability is based on the failure to fence. Such failure is statutory negligence. In other words, the right to recover is made to depend on the failure to do that which the company has the right and power to do.

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I will assume that all the plaintiff has to prove in order to recover for stock injured or killed is the injury or destruction," and that the burden is on the corporation to prove the road was fenced or that the right to do so did not exist. To my knowledge it never has been claimed that an absolute liability was created by the statute independent of the right to fence. The existence of such right, therefore, as well as the sufficiency of the fence, may arise on the trial of any case, and these, under proper instructions, would be questions for the jury. The right to recover, therefore, is dependent on the mere construction or insufficiency of the fence. The statute creating a liability for a

failure to fence existed previous to the adoption of the code; the last proviso of § 1289 being added to the previous law at that time. Previous to this it had been held that, before there could be a recovery for damages caused by a fire set out by an engine on a railway, plaintiff must prove negligence, the onus or burden being on him to establish such fact. Gandy v. C. & N. W. R. Co., 30 Iowa 420.

Such being the statute and laws as declared by the court, the following was added to the statute: "And provided, further, that any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating such railway, and such damages may be recovered by any party damaged in the same manner set forth in this section in regard to stock, except double damages.”

This statute abrogated the rule recognized in the case above cited. In the absence of positive and controlling words indicating a different intent, I incline to think the presumption is that such was all that was intended. This presumption becomes stronger when the result is reached that an absolute liability has been created, which in no wise depends on the care, negligence, motive or intent of a party. A statute should never be so construed unless at least there is no escape from the conclusion that such was the legislative intent. It is not, however, necessary to rest entirely on such presumption. The statute is that a recovery may be had in the same manner as provided where stock is injured or killed. In the absence of the statute it is believed the established rule is that no recovery could be had for stock killed, unless negligence was shown, whether the road was fenced or not. If not fenced, all the plaintiff has to prove in order to recover under the statute, if a liberal construction in his favor is adopted," is the injury or destruction of his property." But certainly the defendant could escape a recovery by showing a right to fence did not exist.

So here, all the plaintiff has to prove in order to recover is that the "fire was set out or caused by the operation of the railway," and the amount of his damages. The fact that the fire was so "set out or caused" is statutory negligence. The burden is then cast on the defendant in order to escape a recovery to show inevitable accident, which human foresight, prudence and care could not guard against.

A recovery in the "same manner" does not in this construction mean the same form of action or proceeding. It means by the same measure of proof. This court has held that the liability for killing stock in the absence of negligence, does not attach at places where the company has the abstract legal right to fence, but only at such places as "it is fit, proper and suitable that the fence should be built." Davis v. B. & M. R. R. Co., 26 Iowa 549. It has also been held that where a fence has once been erected, the company is only liable for ordinary diligence in keeping it in repair. Aglesworth v. C. R. I. & P. R. R., 30 Iowa 459; Perry v. D. S. W. R. Co., 36 Id. 102; McConnell v. C. R. I. & P. R. Co., 41 Id. 195.

By the rule of these cases, if a fence once built

is destroyed by flood, storm, or fire, no liability attaches until the company has had notice of the destruction of the fence and a reasonable time to rebuild it. I cite the foregoing cases as showing that this court has never held the absence of a fence, where there was a strict legal right to fence under all circumstances, created a liability against the company for stock killed.

On the contrary, it has been repeatedly held that under certain circumstances the company is not absolutely liable for stock killed at points where the company had the right to fence and no fence inclosed the track at the time of the loss. If, therefore, the plaintiff in this case may recover in the same manner, or by the same measure of proof, as in the action for killing stock, it was error to instruct that if the fire was caused by operating the road, the defendant was absolutely liable.

If the statute provided: "Any corporation operating a railway shall be liable for all damages by fire set out, or caused by operating of such railway," it might be well claimed an absolute liability had been created thereby. But the statute proceeds to define the manner of the recovery, and the only thing peculiar therein is a definition of the proof required on the part of the plaintiff, The amount and quality of the proof on his part is defined. Where this has been adduced, a recovery follows, of course, unless the defendant can show, in accordance with recognized principles of law, facts which will prevent such recovery. The statute does not undertake to define what the defendant must show to overcome the statutory proof, but leaves it to be determined by the principles of the common law, as declared to exist by the courts of this country. The practical effect of the majority opinion is, that it matters not what the defendant may show, a recovery must follow the introduction of the statutory proof. For, to my mind, it is clear the instruction copied in the opinion recognizes the principle that the defendant is absolutely liable, and that by no possible care and diligence on its part could such liability have been averted

It is assumed without warrant, I think, in the opinion, that there are contrivances that may be applied to an engine which will prevent the escape of fire. There is nothing in the record before the court so showing, and I feel reasonably sure that the court can not judicially know there are any such. Nor is it safe to say any such will ever be discovered. If there should be, it is difficult to see how the liability of the defendant should be in any wise measured thereby.

The effect of my views would be to reverse the ruling below, but in view of the position taken in the foregoing opinion as to the pleadings, proof and instructions, including the agreement of counsel at the oral argument, it would require considerable space to demonstrate this fact, and that already occupied admonishes me this should not be done. In any event, I should be unwilling to permit the opinion as to the construction of the statute to be filed without dissenting therefrom.

ROTHROCK, C. J., concurs with me.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1877.

FIRE INSURANCE-CONTRADICTORY PROVISIONSCONSTRUCTION.-1. Where a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of a warranty. The company can not justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself. 2. It appears from the special finding that, by the terms of the application, the assured was required to state separately "the estimated value of personal property and of each building to be insured, and the sum to be insured on each;

the value of the property being estimated by the applicant." The applicant was also directed to answer certain questions and sign the same," as a description of the premises on which the insurance will be predicated." Among the questions to be answered were: "What is the cash value of the buildings, aside from hand and water power? What is the cash value of the machinery?" The answer was: "$15,000, building; $15,000, machinery." The application concludes with these words: "And the said applicant hereby covenants and agrees to and with said company that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property to be insured, so far as the same are known to the applicant, and are material to the risk." The policy refers to the application in these words: "Special reference being had to assured's application and survey, No. 1462, on file, which is his warranty, and a part hereof." The policy further recites: "If an application, survey, plan, or description of the property herein insured is referred to in this policy, such application, survey, plan, or description shall be considered a part of this policy, and a warranty by the assured; and if the assured, in a written or verbal application, makes any erroneous representation, or omits to make known any fact material to the risk, then, and in any *Any fraud

such case, this policy shall be void.

or attempt at fraud, or any false swearing on the part of the assured, shall cause a forfeiture of all claim under this policy." * * The policy also declares that it is made and accepted upon the above, among other, express conditions. It was found by the court that when the policy issued, as well as at the date of the destruction of the property by fire, the cash value of the building, aside from hand and water power, was $8,000 and no more; and the cash value of the machinery, at the same dates, was $12,000, and no more. But the court also found that "the answers made by the assured to the questions contained in the application were made by him in good faith, without any intention on his part to commit any fraud on the defendant." It was further declared in the special finding that "under the provisions of the policy and application, made part hereof, the court finds, as a conclusion of law, that the answers of the assured as to the value of the property insured defeat the right to recover on the policy." Held erroneous, as it does nor clearly appear that the parties intended the validity of the contract of insurance to depend upon the absolute correctness of the estimates of value, and as it does ap

PARTNERSHIP.

Associate Justices.

Where a landlord agreed with another that the other should farm his land, and that they should each defray half of the expenses and take half the profits, the agreement does not, as a matter of law, constitute them partners. 1 Camp 329, 6 Ver. 119; 1 Hill's Rep. 30 Maine; 15 Wend. 379; 6 Metc.; 53 Mo. 504. Opinion by NAPTON, J.-Donnel v. White Admrs.

AWARD OF ARBITRATORS.-The law favors awards made by arbitrators, and they can not be set aside except for cause. Where after protracted examination, argument of counsel, and the filing of briefs by both sides containing references to the pages of books of accounts which were confusedly kept, it was error to set aside an award because the arbitrators called on one of the attorneys in the absence of the other to find the pages referred to by him in his brief, and point out the items of account commented on by the attorneys in their arguments. Opinion by NAPTON, J.-Neely v. Buford.

LICENSE LEASE PRACTICE.-A license merely makes an action lawful which would otherwise be unlawful, but passes no title or interest: but a license by writing obligatory, giving an interest in the property to which it refers is an incorporeal hereditament, and is irrevocable except for breaches of the conditions stipulated; as e. g. a license to enter and mine, which is not a lease, because there is nothing in it inconsistent with continuance of the grantor's possession of the land. Vaugh. 351; 7 Scott, 855; Bainbridge on Mines and Mining, Ch. 8, $54, p. 255; Cruise's Dig., C. 5, vol. 4; 28 Mo. 199; 2 B. & A. 736: 8 Mod. 11, 318; 6 T. R 458; Rawle on Cov. Ch. 6. Where notice is given to produce a paper and the paper is sufficiently identified by the description to imform the holder precisely what paper is referred to, it must be produced, although called by a wrong name, e. g. a lease instead of a deed, or vice versa. Opinion by NAPTON, J.—Boone v. Gramby M. & S. Co. et al.

EJECTMENT EQUITY.-The defendant went into possession in 1864 under a sheriff's deed, issued on a valid judgment, but of no validity itself because the levy was made after the return day of the writ against Long. The plaintiff, a receiver of Long in 1870, began an attachment against this land, and perfected his suit by sheriff's deed in June, 1872. In 1871 the defendant procured a quit-claim deed from the heirs of Bird, who had held the legal title all the time, in order to protect his possession acquired in 1864, which he had the right to do (Freeman's Ch. R. 123). The plaintiff adopts the sale and conveyance in order to avoid the necessity of making Bird's heirs parties, and insists that defendant having required this legal title shall transfer it, without compensation for the purchase money paid by him or for taxes paid. Now Long could not have done this; can his creditors in 1870 do

so? I am not satisfied to answer in the affirmative, but as the other judges hold that the equity of the defendant does not reach Long's creditor, the judgment for the plaintiff must be affirmed. Opinion by NAPTON, J.-Davidson v. Robinson.

EQUITY-BILL TO REFORM MISTAKE.-Bill avers that plaintiff, a partner in the firm of J. C. & Co., sold and intended to transfer by written agreement to the firm his interest (being ) in the "good will and prospective profits" of the partnership, and that by mistake these words were omitted, so that the agreement reads as a transfer of his interest in the firm, including the assets thereof; and that a suit at law has been instituted on the agreement. Prayer for reformation of the contract, and injunction on proceedings at law. Answer denies the bill, and both pleadings are sworn to. Held, that the facts averred being clearly proved, the written agreement does not express the intention of either contracting party, and constitutes a mistake of fact upon which a court of equity may grant relief. But this plaintiff having sold the "place and influence" he had in the old firm, and having very shortly afterwards opened a new business of the same kind only a few doors from the place of the other firm, in consequence of which that firm was dissolved, (one of its members being a brother of defendant's) the injunction will only be granted on condition that the plaintiff who seeks equity here will do equity, that is, refund to the other parties the purchase money paid by them, so as to place them as nearly as possible in statu quo. Opinion by NAPTON, J.-Cassidy v. Metcalfe.

PRESENTMENT OF CHECK-CUSTOM.-Where a check was duly presented at the counter of the drawee, and payment demanded and refused, the fact that, if it had also been presented at the clearing-house, it would have been paid, and there was a mercantile usage of presenting such checks, when deposited in bank, at the clearing-house for payment, and that this check was deposited in plaintiff's bank, but not presented at the clearing-house, will not discharge the drawer of the check, if otherwise liable. 2. Though custom should make a presentation to the drawee's agent at the clearing-house, the equivalent of a presentation at the counter of the drawee, it would not become necessary to present the check at the clearinghouse, after it had been duly presented and refused at the bank. Affirmed. Opinion by LEWIS, P. J.-Kleekamp v. Meyer.

STATUTES REGULATING PROSTITUTION-KEEPING BAWDY-HOUSE.-Sections 19 and 20 Wagner's Statutes, 502, were designed for the suppression of prostitution, not for its regulation. The city charter of 1870 repealed them both as to St. Louis; and, when the charter provision was repealed by act of 30th March, 1874, the original provisions for suppressing prostitution were not revived. There is no statute in existence under which the renting of a house for a bawdy-house in St. Louis can be punished as a criminal offence. 2. But the keeping of a bawdy-house is a common law offence, and an indictment for keeping a bawdy-house will be sustained by proof that one has rented a house to another for the purposes of prostitution. The one who leases a house for a bawdy-house must be charged as a principal in keeping the house. All who abet a misdemeanor are principals. Affirmed. Opinion by LEWIS, P. J.-State v. Lewis.

RAILWAY NEGLIGENCE — CONTRIBUTORY NEGLIGENCE.-1. It is for the jury to make all reasonable inferences; and where there is evidence to support the verdict, the appellate court will not weigh conflicting testimony. 2. Though it be unlawful for those not connected with a railroad to walk upon its track, and it is presumed that every one will obey the law, it does not follow that a railroad company may run its cars through the streets of a city without keeping a careful lookout. 3. In case of a railroad accident, the negligence of plaintiff may be wholly immaterial. The essential question in such a case is what was the immediate cause of the final act. Where the negligence of plaintiff was a remote condition, and that of defendant was the causa causans, the negligence of plaintiff is no bar to recovery. 4. What is ordinary prudence depends, not on abstract propositions, but upon the facts of each case. A railroad company is bound to use ordinary prudence to avoid injury, even to trespassers.. 5. Where a child of two years old was walking on the track of a railroad as the train backed towards it, and there was evidence tending to show that no one on the train saw the child till after the accident, and that, if some one on the train had been on the look-out, the accident might have been avoided, the company is liable in damages for running over the child. Affirmed. Opinion by HAYDEN, J.-Frick v. St. L., K. C. & N. R. R.

HOMESTEAD SALE-SURPLUS-ABANDONMENT.-1. By the act of 1850 (2 S. & C. 1145), the homestead having been sold under a claim which precludes the allowance of exemption, leaving a surplus, the debtor may insist upon his allowance out of such surplus, as against creditors whose claims do not preclude the allowance of a homestead. 2. If the debtor has voluntarily abandoned his homestead before claiming it as exempt, his right is gone; but the court having found there has been no such abandonment, that finding can not be reviewed upon error, the bill of exceptions not showing the evidence upon which the court based its action. Judgment affirmed. Opinion by WRight, J. -Jackson v. Reid.

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NEGLIGENCE-CROSSING STREET PRACTICE ON APPEAL.-1. A person about to cross a street of a city in which there is an ordinance against fast driving, has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence on his part to act on the presumption that he is not exposed to a danger, which can only arise through a disregard of the ordinance by other persons. 2. But where he knows that others are driving along the street, at the place of crossing, at a forbidden rate of speed, and he has full means of seeing the rate at which they are driving, the existence of such ordinance will not authorize a presumption which is negatived by the evidence of his senses. If the attempt to cross the street, under the circumstances, would be negligence on his part, the fact of the existence of such city ordinance is not evidence tending to free him from culpability. 3. Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by bill of exceptions, a reviewing court will, in connection with the evidence, look to the charge