robbed of all its force. In view of what has been said in the preceding division of this opinion, we have no occasion for further discussion of the subject.

4. On the trial of the main issue between Culbertson and McAlister, the latter was a witness on his own behalf. To make out his case in chief, cross-petitioner brought in the transcript of the testimony of McAlister, and portions thereof were read by him in evidence. In the case of each of several interrogatories appearing, petitioner announced that he would read only a portion of the answer. To this the defendant objected as being incompetent and improper, and insisted that the whole of the answer should be read. The portion of the answer was received subject to the objection. And in connection therewith counsel for cross-petitioner stated that the evidence was offered on the theory that the portions of the answers read constituted admissions made by McAlister against his interest. After cross-petitioner had finished reading from the transcript, defendant objected to the evidence on the ground that the deposition containing the same was taken in the main case, and not under the cross-petition. Defendant also moved the court to require cross-petitioner to introduce the omitted portions of the several answers. To this cross-petitioner objected, on the ground that such portions should be offered by defendant on his own behalf if he desired the same in the record. And the objection was sustained. Thereupon the court addressed counsel, saying that defendant would be permitted, “in order to complete his record, to read such parts of the deposition as are germane to the facts in this case into the record, not compelling the other party to do it, subject to the objections that may be made by the other party." Counsel for defendant then offered to read, and the objection was made that the omitted portions should not be put into the record in any way "except by an order as part of the testimony on the part of defendant." Here the court remarked: "My idea in permitting this at this time was to allow the testimony to be received as if on cross-examination of the witness, and in order that the record may present the testimony as given by a single witness on direct and cross-examination." The several omitted portions were then read and received, subject to the objection interposed to each that the same was "improper crossexamination, incompetent, irrelevant, and immaterial, not germane to what is joined by context, a self-serving declaration and a conclusion." Later in the course of the trial-while yet evidence for the cross-petitioner was being introduced-and without any apparent exciting cause, the court announced that the portions of the answers given by McAlister which were read by defendant, were read and introduced, "as the court understood and intended, and now intends, as evidence on behalf of defendant to cross-peti

tion. Mr. Hoffman: The defendant to the cross-petition now disclaims any intention or any idea of introducing that part of the record the court has referred to as part of his testimony. Mr. Salinger: Upon this concession and disclaimer, I move that the testimony just referred to be stricken from the record." This motion was sustained.

Respecting the matters thus detailed it is insisted by defendant, to begin with, that the court should not have permitted the reading in evidence of portions of the answers given by McAlister, and should have sustained the motion to require the answers to be read as a whole. We are not disposed to concur in this view. Most certainly, it was permissible to show as against defendant-whose rights are no more than the rights of which McAlister died seised-that in his lifetime, and while under oath, said McAlister made admissions respecting the subject-matter in controversy against his interest, and at variance with the contentions now presented by defendant standing in the relation of legal representative. Had a person who was standing by when the deposition was taken been produced by cross-petitioner as a witness, it would have been proper to have confined the examination of such witness to the matter of supposed admissions. Under no rule would the questioner be bound to go farther and ascertain whether or not an admission testified to was accompanied by any qualifying or explanatory statements. It would be the prerogative of the cross-examiner to do that. We see no reason why the practice should be different when, as in this case, an admission is sought to be proven by having recourse to the deposition itself, rather than to the recollection of a person present during the taking thereof. And as the defendant might cross-examine a witness called to testify to an admission, so he could read from the deposition such parts as had direct bearing to explain or qualify the admissions sought to be established. It follows from what has been said that the reading of a portion only of the answers was not open to criticism. Considering the objections made by cross-petitioner to the omitted portions of the answers we are of the opinion that the same are without merit. It is sufficient to say without setting forth the answers and the questions to which they were responsive -that in the case of each the several portions of the answers were more or less in direct relation, and it is fair to both parties that the answers should be given consideration in their entirety. Coming to the objection by defendant that the matter contained in the deposition was incompetent as a whole, because such deposition was taken under the issues in the main case, we are agreed that such objection should be disregarded. If there were no other reason, the objection came after the evidence was in the record, and therefore too late. Parker v. City of Ottumwa, 113 Iowa, 649, 85 N. W. 805. There is no

theory on which the striking out of the portions of the answers read into the record by defendant can be justified. The evidence went in as in the nature of cross-examination under the express sanction of the court previously expressed. And defendant was bound by such evidence only as he might have been had the witness been personally in court and cross-examined.

5. Cross-petitioner, Salinger, was a witness on his own behalf. He was interrogated with reference to the partnership relation formerly existing between himself and L. P. Brigham, and as to the manner of conduct of some of the business of that partnership. The witness was allowed to testify over the objection by defendant that he (Salinger) was not competent witness under the statute, Brigham being at the time of the trial deceased. The evidence was also objected to as incompetent and immaterial, and, where the questions called for conversations, on the further ground that such were not had in the presence of McAlister. We think the objection to the witness as incompetent was not well taken. The prohibition of the statute (Code, § 4604) extends no farther than to forbid the examination of a pary or person interested as a witness respecting transactions or communications between such witness and a person since deceased as against a person bearing to such deceased some one of the relationships specified in the statute. The relationship existing between Brigham and either McAlister or his heirs or legal representatives was not one falling within the specified classes. Nor should the objection to the evidence be sustained. As will become manifest later, it was material to show what were the relations between Salinger and Brigham, and the evidence as addressed to that subject was fairly competent. The conversations objected to were brought in, as we understand it, for no other purpose than as explanatory of the partnership relation. And in that view they were receivable. Continuing as a witness, Salinger was asked if following a talk with Brigham he was present at a meeting when Brigham and McAlister talked with reference to loaning his (McAlister's) money. And he answered that he was present when Brigham and McAlister had a talk on that subject. He was then asked to "go ahead and give the conversation you overheard." To this, the objection of the statute was interposed, and, subject thereto, the witness proceeded to detail the overheard conversation. Under our repeated holdings, the prohibition of the statute does not extend to conversations simply overheard by the witness whose competency is questioned. Albright v. Hannah, 103 Iowa, 98, 72 N. W. 421; Wright v. Reed, 118 Iowa, 333, 92 N. W. 61; Powers v. Crandall (Iowa) 111 N. W. 1010.

6. Finally, counsel for appellant contend that the decree is not warranted by the evidence. And our conclusion, reached after a

careful reading of the evidence in the record, is in accord with this contention. Within reasonable limits we cannot set forth the evidence in detail, but we shall call attention thereto sufficient to make clear the grounds of our conclusion. Back in the year, 1884, Salinger and Brigham each resided at Manning, Carroll county-the one a lawyer, the other a physician. Brigham was a sonin-law of Dr. H. C. McAlister, the latter residing at Muscatine, and reputed to be wealthy. On February 8, 1884, Salinger and Brigham entered into an agreement of partnership for the carrying on under the firm name of Salinger & Brigham "of the insurance, loan, and collection business. Both partners to give their entire time, efforts, skill, and influence to said business. Profits, losses, and expenses to be shared in and borne equally by both parties." Speaking of the partnership arrangement, Salinger, as a witness, says: "At the time I was engaged in the law business quite heavily, and in the insurance, collection, and farm loan business. * * * They were getting high rates out there for chattel loans, * * and I sug

gested that the firm make an attempt to get him (McAlister) to send the money to us to loan; that if he (Brigham) would bring that about to any considerable extent, he would not have to practice medicine; * that he might have an interest in the whole business including the law business." Following this suggestion, Salinger and Brigham went together to Muscatine to see Mr. Mc Alister. Respecting what occurred there, Salinger says: "I overheard the following conversation in substance between Dr. McAlister and Brigham: Brigham told McAlister what he and I desired to do. McAlister declined to do that, saying I was a stranger to him, while Brigham was his daughter's husband, and he was willing to help him; that if he could get any good out of loaning money he had confidence in him, but did not want to put his money into anybody's partnershipdidn't want it to be handled by anybody he did not know; that he was getting to be an old man, and if there was complication between the partners it would complicate him. Finally, he said he would let Brigham have money from time to time and that he could loan it for him; that if he made any profit out of it, he could do what he liked with it; that it ought to help him just as much if it gave him a profit as though I was going to let him have the money; that if he was going to let him have a full partnership for the one, I would be just as apt to do it for the other. McAlister insisted that Brigham should deposit the money as he got it from Muscatine and as it came back from borrowers in his (McAlister's) name in Manning, and drew checks against it. Brigham took me to one side and wanted to know if I would do that, and I said, 'Yes.'" On cross-examination Salinger said: "I re

*

*

member no one present at the conversation but the three. I was present all the time this conversation occurred. * * There are parts of the conversation where I did chip in and say something." Following this, money was sent out from time to time by McAlister; the drafts, as it appears, being made payable to Brigham, and the same were deposited in bank at Manning to the credit of McAlister. Further, in April, 1885, Brigham was, by writing executed by McAlister, appointed "my true and lawful attorney

to carry on the business of loaning money, collecting the same when due, and releasing any mortgages," etc. It is clear that the loaning of the money was carried along by Salinger & Brigham as partnership business, and reports were made to and correspondence had with McAlister, respecting the status of the business in the firm name. Generally the reports and correspondence was attended to by Brigham, but in some instances they appear to be in the handwriting of Salinger, and some of the letters were signed by him personally. The evidence of McAlister-taken on the trial of the main case, and here introduced-as far as connected with the subject immediately in hand, is as follows: "Q. Is it not true that whatever became due you at any time from Salinger & Brigham, or either member of said firm, accrued from and arose out of the loan business initiated by making Brigham your agent to loan money? A. Yes. Q. Did the firm or either member thereof ever owe you any money, except as the indebtedness may have grown out of said loan business? If so, what for, and when? A. The indebtedness of Salinger & Brigham to me grew out of the business so started. The accounts were kept and the business done by the firm. Q. Did you not initiate all the business at loaning money by making Brigham your agent by means of a written power of attorney? A. Yes; but the business was all done by the firm, and their statements and accounting to me were done in the firm name. Q. Did you ever send or give Salinger any money to loan for you? A. I think not; the money was sent to Brigham, but the business was done by the firm of Salinger & Brigham. Q. Was not all the money originally transmitted to Brigham in the form of bank drafts to his order? A. Probably that is true. Q. Did you ever loan Salinger any money or let him have any property? A. Not individually, that I now remember. All my business transactions, aside from the power of attorney, were with Salinger & Brigham."

The further proof makes it appear that the money was actually handled by the firm of Salinger & Brigham, and principally employed in making chattel loans. That whatever profit or benefit arose therefrom inured to and was taken over by the firm is not questioned in evidence or argument. For a time matters were carried along in the shape of an open account, concerning which reports were

made from time to time, by the firm to McAlister; thus, on July 1, 1887, a statement was rendered showing a balance due McAlister from the firm in the sum of $9,288, and at the foot of such statement, this-in the handwriting of Salinger—appears: "The above is a correct statement of accounts to date. [Signed] Salinger & Brigham." Later on, notes were given by the firm to represent balances in favor of McAlister. Thus matters continued until in November, 1891, when Dr. McAlister went to Manning, and, judging from appearances, for the purpose of effecting a settlement. There was then due him the sum of $7,200, and it would seem that the firm did not have the money to satisfy the indebtedness. Thereupon there was drawn up and signed the writing, a copy of which was attached to the petition of Culbertson in this action, and the substance of which has been set forth by us on a preceding page of this opinion. Respecting this writing, it is the testimony of McAlister (introduced by cross-petitioner from the deposition taken on trial of the main case) that the agreement and policies were to be taken home by him, and submitted to his family for their consent. It seems that the family did not consent, and he says: "I returned the agreement and policies to Salinger & Brigham. The agreement was not carried out." And on the subject, Salinger testifies that the notes referred to in the writing were wholly based upon "an alleged shortage arising out of the loan business, and upon an assuming by Salinger & Brigham of that shortage without receiving anything for assuming it, and making it their debt." And the transaction is explained by him thus: "Brigham wanted me to assume with him an amount that he (Brigham) said McAlister claimed he (Brigham) owed him, and pointed out to me that it would all come out right if we done it and no fuss was made; that his family had large expectations on the death of Dr. McAlister and did not want that interfered with. As a result of this solicitation on the part of Brigham, with whom my relations were very intimate, I agreed with him that the amount claimed by McAlister should thereafter be treated as a debt due from Salinger & Brigham instead of L. P. Brigham." Some time in the year 1892, Brigham died, intestate, and, as it would seem, insolvent. In July, 1893, as we have seen, the notes sought by this action to have canceled, were given. Respecting the same, it is the testimony of Dr. McAlister (read from the deposition by crosspetitioner) that "after Brigham's death I told Salinger I would release Brigham's portion of the firm of Salinger & Brigham's indebtedness to me, if he would give me his personal notes for $4,100, to be secured by a policy of life insurance on Salinger's life, he to keep the policy paid up. He gave the notes and kept the insurance policy paid up." And on the subject Salinger says no more than that the notes "are the outgrowth and rest upon

no other thing that I ever received or that the firm ever received excepting the thus assuming (under the agreement with Brigham as testified to by him) of this obligation of L. P. Brigham."

It does not appear what became of the notes which were given to McAlister prior to the attempted settlement in November, 1891. We set forth below the substance of all that appears in the record on the subject. On crossexamination Salinger testified that he was a witness and testified in his own behalf on the trial of the main case in the year 1900. He was then asked: "Q. In that case you were asked this question, were you not, and made the answer that I read: 'Q. When were the first notes given for the McAlister claim? A. I think some time in the late eighties, some time between '87 and '89.' Did you so testify? A. I so testified at that time. I don't believe I have to answer whether that was true, but I undoubtedly thought it was true when I so testified. Q. And this further question and answer: 'Q. And those notes had been renewed from time to time either by Salinger & Brigham, or one of them, until it was finally merged after Brigham's death into these notes for which you executed your notes of July 11, 1893? A. They had been renewed from time to time by notes signed either by us two as individuals or by notes bearing the signature of Salinger & Brigham, or by notes bearing my own signature alone.' Did you so testify? A. I did. I must have thought it was a fact when I so testified." In response to further questions the witness answered that he had no present recollection of what became of any of the notes so given. Such is the case the record presents for our consideration. We shall not prolong this opinion by any attempt at analysis-the necessities of the case make no such requirement of us. The inquiry involved is simple, and it is this: Are the notes here sought to have canceled based upon any consideration sufficient to support them? On their face, the notes import a consideration. This is hornbook law. And the burden is on the cross-petitioner to show that in fact no consideration ever passed to him for their execution. This he must do by evidence which makes plain, clear, and satisfactory the conclusion for which he contends.

We unite in the view that the burden has not been sustained. To our minds, the evidence established affirmatively that there was a consideration for the notes. Whatever the preliminary arrangement between McAlister and Brigham, the undisputed fact remains that the money of the former went into the business of the firm of Salinger & Brigham, and that firm employed the same for its own profit. The firm evidenced its intention to be bound for a return of the money, and Dr. McAlister not only adjusted himself to the situation but reciprocated by accepting the notes of the firm covering the balances supposed to be in its hands. And thus mat

ters stood when the so-called shortage came to the surface. It was then too late to deny the responsibility of the firm, and as the firm was responsible so were the individual members thereof. From this it follows the debt for which the notes in controversy were given was in reality the debt of Salinger. And there was the added consideration of the agreement by McAlister for the release of the estate of Brigham.

On the case as a whole, we conclude that the decree was wrong, and it is reversed.

Findings of commissioners in an action todetermine the location of a section corner held against the weight of the evidence.

Appeal from District Court, Sioux County; Wm. Hutchinson, Judge.

The opinion states the case. Reversed.
G. T. Hatley, for appellant.

WEAVER, J. The subject of controversy in this case is the location of the common corner of sections 2 and 3, in township 94, range 46, and sections 34 and 35, in township 95, range 46, in Sioux county, Iowa The plaintiff, who is the owner of a tract of land affected by such location, brought this action under the statute, claiming that the true location thereof as fixed by the original government survey had been lost, and asked the appointment of a commissioner to make the necessary survey, and report the result thereof to the court. Acting upon this petition, the court appointed two surveyors, and commissioned them to make the survey, and to take testimony bearing on the location of said corner. Having qualified under said appointment, the commissioners proceeded to take the testimony of the parties and their witnesses concerning the location of the corner in question and the existence of alleged marks and monuments relating thereto. The evidence so taken was reduced to writing, and returned into court with their report. In their report the commissioners practically reject all the testimony of the witnesses produced before them as being immaterial or inconclusive, and proceed to state what they find and determine to be the true location as indicated by their own survey. This survey they state was made by going to certain other corners described as being "definitely located and undisputed," and measuring therefrom to other corners, which they also describe as being "definitely located and undisputed," and from these measurements they deduce the location of the corner in dispute. The commissioners did not testify as witnesses upon the hearing in court, and nothing appears in their report or elsewhere in the record to indicate by what means they ascertained or knew or determin

ed that the fixed points from which they found the location of the lost corner were in fact government corners, or that they had been or were definitely located and undisputed. They concede that their measurements do not tally with the minutes of the original government survey, but conclude, after a comparison with other measurements in the same neighborhood, that all actual measurements of lines in that vicinity overrun the measurement recorded by the government surveyors, and that the discrepancy in the present instance is only such as could reasonably be expected under these circumstances. To this report the defendant objected on the ground that the findings of the commissioners were not justified by the evidence, and upon the further grounds that the evidence clearly and affirmatively established the fact that said common corner was at a point which had been fixed and settled by a former survey and established by the judgment of the district court theretofore rendered under date of January 16, 1894. For these reasons the defendant moved the court that the findings of the commissioners be set aside, and that the corner be adjudged to be confirmed and established in accordance with the prior judgment referred to. The district court overruled the objections to the report, and confirmed the findings of the commissioners, and ordered the establishment of the corner in accordance therewith.

To a full understanding of the merits of this appeal, it should further be said that the litigation over this corner had its inception in the year 1893, when a proceeding was begun in the district court for its establishment. In that proceeding all of the alleged owners of land affected thereby were named as parties plaintiff or defendant, and judgment was entered as above suggested under date of January 16, 1894, establishing said corner at the point which is now contended for by the appellant herein. It subsequently appeared that a mistake had been made with reference to the ownership of one tract of the land, and that the real owner thereof had not been served with notice or brought into court. As to this party, the judgment of January 16, 1904, has since been held not to be of any force or effect. See Dittmer v. Mierandorf, 129 Iowa, 644, 106 N. W. 158. The corner as now fixed upon by the commissioners' report is some 33 feet north and 29 feet east of the point fixed by the prior judgment. The public highway has been laid out and worked for many years, and adjoining lands have been used and occupied with reference to the corner as recognized by the prior judg ment. An examination of the entire record leads us to the conclusion that the trial court was in error in overruling the objections to the commissioners' survey. The testimony of the witnesses is substantially undisputed to the effect, not only that this latter corner was the one commonly observed and recognized by the adjoining property holders and

by the road officers, but this claim was still further strengthened by the testimony of witnesses as to marks and monuments, corroborating the theory that this was in fact the common corner of the four sections above described as fixed by the original survey. On the other hand, the commissioners, who wholly disregarded the testimony of the witnesses produced before them, and proceeded to make a survey of their own, were not produced as witnesses on the trial, and the court was left to rely solely upon their missworn written report. In this report we have, as already noted, simply their ex parte statement that they began and measured from certain "recognized or established" corners. Upon what this conclusion was based the record affords no light. The appellee has not seen fit to assist this court by appearing to the appeal or filing a brief in support of the judgment below, and, after giving the case a careful examination, and after according to the judgment below all the presumptions which the law raises in its support, we are still of the opinion that the clear, if not conclusive, weight of the testimony is against the finding of the commissioners, and that the objections thereto by the appellant should have been sustained. It follows that the judgment appealed from must be reversed and cause remanded for further proceedings in harmony with this opinion. Reversed.

STATE ex rel. PRITCHARD v. GREFE et al. (Supreme Court of Iowa. July 7, 1908.) 1. SCHOOLS AND SCHOOL DISTRICTS-CONSOLIDATION.

Under Acts 32d Gen. Assem. (Laws 1907, p. 153) c. 155, § 2, providing that on a petition for the establishment of a consolidated independent school district, with limits coextensive with those of a city, being filed with the board of the school corporation therein having the largest number of voters, it shall be the board's duty to call an election, it is not required that the "corporation therein having the largest number of voters" shall be entirely within the city limits, but the sole test is the number of voters within the several districts, whether entirely within the city limits or partly within and partly without.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Schools and School Districts, § 55.] 2. SAME.

The census of the state taken under Acts 30th Gen. Assem. (Laws 1904, p. 7) c. 8, which required the census to be published, and declared that such census should be evidence of all matters therein contained, was competent evidence in determining the particular school district of a city having the largest number of voters within Acts 32d Gen. Assem. (Laws 1907, p. 153) c. 155, § 2, notwithstanding such census had been taken two years previous, in the absence of any showing of a change, for conditions once established are presumed to continue for a reasonable time at least. 3. SAME.

To determine the particular school district of a city having the largest number of voters within Acts 32d Gen. Assem. (Laws 1907, p. 153) c. 155, § 2, it was competent to receive