D. W. Bruckart, for appellant.
H. W. Holman, for appellee.

BECK, C. J. 1. The action was brought to recover the possession of two horses upon which defendant, as a constable, had levied an execution issued upon a judgment against plaintiff, who, in this action, claims that the property is exempt from execution. The original petition alleged, as the ground upon which the horses were claimed to be exempt, that they constituted the only team with which he, as a farmer, habitually earned his living.

Upon the trial in the circuit court plaintiff offered evidence to show that he was a married man, which was rejected on the ground that no allegation of the fact was found in the petition. Thereupon plaintiff asked and obtained leave to amend the petition by adding an averment that plaintiff was the head of a family. The action of the court in permitting this amendment is assigned as the only ground of error.

2. Under the Code the utmost liberality prevails upon the subject of amendments of pleadings. Section 2689 is as follows: "The court may, on motion of either party at any time, in furtherance of justice, and on such terms as may be proper, permit such party to amend any pleadings or proceedings, by adding or striking out the name of a party, or by correcting a mistake in a name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceedings to the facts proved." In applying this provision this court has used the following language: "Under the statute it is the rule to allow amendments to pleadings; to refuse is the exception. The right to amend is not an absolute, unconditional one, but is to be allowed in furtherance of justice, under a sound discretion. Amendments within the limits of the statute should always be allowed when substantial justice will be thereby promoted, and they should not be refused so as to operate as a denial of justice." Miller v. Perry & Townsend, 38 Iowa, 301.

Amendments of pleadings in cases pending on appeal from justices of the peace, have frequently been held allowable by this court. Packard v. Smell, 31 Iowa, 80; Stanton v. Warrick, 21 Iowa, 76; May v. Wilson, Id. 79; Warren v. Scott, 32 Iowa, 22; Piny v. Cockyne, 37 Iowa, 211; Adal & Co. v. Zango, 41 Iowa, 536.

It will be remembered that, upon appeals from justices of

*

the peace, cases are tried de novo upon their merits, and all errors, irregularities and illegalities are to be disregarded * * if the cause might have been prosecuted in the circuit court. Code, § 3590. The intent of the statute is to secure justice by a trial of the appeal upon the very merits of the case, without regard to errors or irregularities, if the circuit court may have jurisdiction of the parties and subject-matter of the action. Errors and insufficiencies of pleadings cannot stand in the way. The pleadings may be amended, or the errors disregarded, in order to attain the purpose of the statute.

3. Counsel for defendant insists that the order allowing the amendment is erroneous, for the reason that the plaintiff did not show excuse for not pleading before the justice, and no terms were fixed upon which the amendment was allowed. Upon these points the abstract before us is silent. In the absence of a showing to the contrary we will presume that the court below correctly exercised its discretion, and if a showing or terms were required-points which we do not decide they were properly made.

No other questions arise in the case. circuit court is affirmed.

The judgment of the

A. W. Cоок, Appellee, vs. J. S. TRIGG, County Auditor, and

others, Appellants.

Filed December 15, 1879.

Where a commissioner, appointed to report upon the vacation of a highway, reports adverse to such vacation, no further proceedings can be had, either under that commissioner or another subsequently appointed. Thus, where one commissioner reported adverse to a vacation, and subsequently another commissioner was appointed who reported in favor thereof, on which report vacation was ordered, held that such vacation was illegal.-[ED.

Appeal from Floyd circuit court.

This is a proceeding by certiorari to inquire into the legality of the vacation of a certain highway. The court adjudged that the proceedings of the board of supervisors and county auditor be set aside and annulled, as illegal, and not within their jurisdiction. The defendants appeal.

J. S. Root, for appellants.

No argument for appellee.

DAY, J. On the twenty-second of May, 1878, a petition was filed with the auditor of Floyd county, signed by E. C.

Wilcox and others, praying for the vacation of all that part of the State Line & Independence road that runs diagonally across section 28, township 15, range 15. On the twentythird day of May, 1878, George Whitehead was appointed a commissioner to view and report upon the expediency of vacating the said road.

This commissioner reported that after a careful examination of the route of the proposed vacation he would recommend that the road remain as now located, for the reason that, in his opinion, the individual gain to the petitioner would be no compensation to the general public for the increased distance to be traveled.

At the June session of the board of supervisors Wilcox made application to the board for the appointment of another commissioner, on the ground that Whitehead was prejudiced against any change in the road. On the fifteenth day of June, 1878, the auditor appointed Horace Stearns a "commissioner to view out and vacate" the road in question. Stearns made his report, recommending the vacation of the road as prayed for in the petition. On the third day of September, 1878, the matter was acted upon by the board of supervisors and an order was entered vacating the road.

Section 927 of the Code, with reference to the duties of the commissioner, provides: "After a general examination, if he shall not be in favor of establishing the proposed highway, he will so report, and no further proceedings shall be had thereon." We suppose this section applies equally to a report adverse to a proposed change, and this the appellant impliedly concedes.

It is claimed by appellant that the words "no further proceedings shall be had thereon" are merely an instruction to the commissioner that he shall make no further expense in the performance of any further duties in connection with the road. This is not, in our opinion, the meaning of these words. The meaning of the section is that, if the report shall be adverse to the proposed location or change, no further proceedings shall be had in the matter. The petition cannot be made the basis of the appointment of a new commissioner. A report adverse to the matter proposed in the petition ends all further proceedings upon that petition. If the auditor may appoint a second commissioner he may appoint ad libitum, at the suggestion of an interested party, until a favorable report is procured.

The vacation of the road was illegal, and without jurisdiction, and the court properly set the proceedings aside. Affirmed.

BENJAMIN S. RоTCH, Appellee, vs. THOMAS HUSSEY, JR., and others, Appellants.

Filed December 15, 1879.

Where no vendor's lien is reserved in the conveyance or by mortgage, section 1940 of the Code being in force at the date of the conveyance, the vendor can claim no such lien.-[Ed.

Appeal from Allamakee district court,

Action in equity to foreclose a mortgage executed to the plaintiff by the defendant Thomas Hussey, Jr., in January, 1878. The defendant Thomas Hussey, Sr., was made a party as claiming to have a lien upon the premises. He files an answer and cross-bill, averring that his lien is paramount to the plaintiff's mortgage. He avers that he was formerly the owner of the premises, and sold them to the defendant Thomas Hussey, Jr., in May, 1873, at which time he took possession; that a deed was executed by him to Hussey, Jr., in October, 1877; that the purchase money is still unpaid, and that he (Hussey, Sr.) claimed a lien upon the premises from the time of the sale in May, 1873, as the plaintiff well knew. The plaintiff demurred to the answer and cross-bill, and the court sustained the demurrer and rendered a decree for the plaintiff as prayed. The defendant Thomas Hussey, Sr., appeals.

M. B. Hendrick, for appellant.
Fannon & Akers, for appellee.

ADAMS, J. Prior to the execution of the deed in October, 1877, the appellant held the legal title. During that time he had no vendor's lien, whatever his claim might be. After. the execution of the deed in October, 1877, he had no vendor's lien, becau se it was not reserved in the conveyance or by mortgage, and the provision of section 1940 of the Code was in force.

Affirmed.

THE FIRST NATIONAL BANK OF DECORAH, Appellant, vs. DAY BROTHERS and others, Appellees.

A draft drawn on a fund secured by mechanic's lien does not operate as a transfer of such lien, nor would representations that such a draft was secured by mechanic's lien bind the party to transfer the same with the draft. Evidence in this case considered, and held insufficient to show a contract for a transfer of the lien in question. Specific performance will not be granted when a party has an adequate remedy at law. In an action against the drawer for a bill of exchange, the same having been accepted, the evidence failed to show demand for payment and notice thereof, or waiver of such demand and notice. Held, plaintiff was not entitled to recover. Allegation in the petition of protest for non-payment, held put in issue by general denial.-[ED.

Appeal from Winneshiek circuit court.

Action in chancery. Upon a trial on the merits in the court below, there was a decree dismissing plaintiff's petition, from which it prosecutes this appeal. The facts of the case appear in the opinion.

M. R. Hathaway, for appellant.
Willett & Willett, for appellees.

BECK, C. J. 1. The petition alleges that defendants made their draft upon W. H. Vallean payable at a future day to plaintiff, which was accepted by the drawee; that defendants represented and warranted, when the draft was made to and discounted by plaintiff, that they held a good and sufficient mechanic's lien upon an elevator and lots whereon it was situated, to secure the indebtedness of Valleau, against which the draft was drawn, and that it carried the security of the lien, and was an equitable assignment thereof; that plaintiff, relying upon these representations, purchased the draft; that defendants hold the mechanic's lien, and are about to enforce the same, and refuse to make any assignment thereof to plaintiff, and that "plaintiff caused the draft to be duly protested and notice thereof to be given to defendants."

The relief asked is a judgment against defendants for the amount of the drafts, with costs of protest, and interest, and that a decree be entered compelling defendants to assign the mechanic's lien to plaintiff as collateral security for the amount found due; and that defendants be enjoined from assigning, collecting, cancelling or disposing of the lien to the prejudice of plaintiff's right. The abstract fails to give the names of the defendants, other than Day Brothers. We understand that Vallean is not a defendant; at least no claim for relief is made against him.