under the conditions which confronted him, he failed to exercise such care, and the instruction practically determined that question in favor of the plaintiff. The doctrine of res ipsa loquitur was 576 not applicable to the case, and it was error to give the instruction. The judgments of the appellate court and circuit court are reversed and the cause is remanded to the circuit court. Negligence.-One Who, in a Sudden Emergency, acts according to his best judgment, or who, by reason of want of time in which to form a judg ment, omits to act in the most judicious manner, is not chargeable with negligence: Donahue v. Kelly, 181 Pa. 93, 59 Am. St. Rep. 632; Duame v Chicago etc. Ry. Co., 72 Wis. 523, 7 Am. St. Rep. 879; Dickson v. Omaha & St. Louis Ry. Co., 124 Mo. 140, 46 Am. St. Rep. 429; Bessemer Land etc. Co. v. Campbell, 121 Ala. 50, 77 Am. St. Rep. 17; Tuttle v. Atlantic City R. R. Co., 66 N. J. L. 327, 88 Am. St. Rep. 491. Presumptions of Negligence from the happening of accidents are discussed in the note to Cincinnati Traction Co. v. Holzenkamp, 113 Am. St. Rep. 986. The question when the exercise of care will be presumed is the subject of a note to Chicago etc. Ry. Co. v. Wilson, 116 Am. St. Rep. 108. COWDEN v. TRUSTEES OF SCHOOLS. OFFICIAL BONDS-Estoppel Against Sureties.-The official reports of a township treasurer, who has for many years been his own successor, conclude his sureties, and they cannot maintain a suit in equity to correct such reports so as to show that defalcations of their principal occuried prior to the time when they became his sureties. \(p. 246.) Livingston & Bach, for the appellants. Jacob P. Lindley, for the appellees. 604 VICKERS, J. Appellants, who were sureties on the official bond of R. S. McIntyre, as township treasurer, filed a bill in the circuit court of McLean county for the purpose of correcting certain official reports made by the township treasurer on June 30 of 1903, 1904, 1905 and 1906, and to enjoin a suit at law on the official bond until this cause is determined. The circuit court sustained a demurrer interposed by the trustees of schools to the bill, and appellants having elected to stand by their bill, the same was dismissed, for want of equity. That decree has been affirmed by the appellate court for the third district. By their further appeal appellants bring the case to this court for review. 605 The facts averred in the bill show that McIntyre was appointed township treasurer in 1880 and every two years thereafter, and that he held the office continuously until December GOS 5, 1906, when he died. The bond upon which appellants were sureties covered the term from September 25, 1903, until September 25, 1905. The bill alleges that by his report made June 30, 1903, the treasurer showed cash on hand $2,391.97, and notes, bonds, etc., on hand $4,840; and on June 30, 1904, the report showed cash on hand $2,166.97 notes $3,450, personal notes $665, and distributable funds $41.25. After the death of McIntyre the trustees of schools demanded $7,647.94 as the balance due from the administrator of McIntyre, who turned over only $1,210.93, leaving a balance unpaid of $6,437.01. Appellants charge in their bill that this balance was misappropriated by McIntyre prior to September 25, 1903, and claim that they should not be held liable for any defaults except for such as occurred during the term during which appellants were sureties on his bond. The questions presented by this appeal have been determined by this court adversely to appellants' contention. In the case of Morley v. Town of Metamora, 78 Ill. 394, 20 Am. Rep. 266, the same contention was made that is now presented by appellants. In that case, as in this, the officer was his own successor, and his sureties sought to escape liability on the ground here interposed. In that case it was said: "It is not made to appear very clearly that whatever default occurred took place in the first year the supervisor was in office; but conceding that fact, we do not think it relieves the sureties on the bond upon which this action is brought from liability. The supervisor was his own successor in office. He had made his annual report, in which he charged himself with having a certain amount of money in his hands. The report was approved and we must presume it was true. In contemplation of law the money mentioned in his report was in the hands of the supervisor, and the undertaking of the sureties on his bond was that he should account for it." That case has been reaffirmed in Roper v. Trustees of Sangamon Lodge, 91 Ill. 518, 33 Am. Rep. 60, and 606 in Longan v. Taylor, 130 Ill. 412, 22 N. E. 745. In the case last above cited the officer whose bond was in suit was a township school treasurer, and in that case it was held that the bondsmen of such officer were concluded by the reports made by their principal and were estopped from showing that such reports were untrue. Conceding the law to be as laid down in the foregoing cases, appellants contend that a different rule should apply where sureties file a bill in equity for relief from the false and fraudulent reports made by the officer. This contention is fully met and determined adversely to appellants' view in the case of Fogarty v. Ream, 100 Ill. 366. That was a bill in equity filed by sureties for the purpose of being relieved from the payment of money where the default had occurred in the previous terms of the guardian. In disposing of that question this court, on page 377, said: "Had it appeared Lynch still had the trust funds on hand, or other funds with which to replace the same, when complainant became his surety on his official bond, his liability for any waste of such funds thereafter would not be contested. It is sought, however, to prove the guardian did not have in his possession or control the trust funds at the time complainant became his surety, but had previously wasted the same, and was then, and has ever since continued to be, insolvent. This the policy of the law will not permit him to do. It would open a wide door for frauds in such matters. Here the guardian elects to charge himself with the full amount of a claim in his favor for funds belonging to his ward. It is neither a false nor a fictitious claim. The money is absolutely due from the guardian to his ward, and neither the guardian nor his surety will be permitted to deny he has the money admitted to be in his hands. Any other rule would be a most unsafe one, and would lead to results the law will not tolerate. No case exactly analogous with the one at bar has before arisen in this state, but the same principle has been applied to sureties 607 of defaulting municipal officers: Morley v. Town of Metamora, 78 Ill. 394, 20 Am. Rep. 266; City of Chicago v. Gage, 95 Ill. 593, 35 Am. Rep. 182; Cawley v. People, 95 Ill. 249; Roper v. Sangamon Lodge, 91 Ill. 518," 33 Am. Rep. 60. Finding no error in this record, the judgment of the appellate court for the third district is affirmed. The Liability of Sureties on successive bonds is the subject of a note to Crawn v. Commonwealth, 10 Am. St. Rep. 843. Where a county treasurer in his report to the county commissioners states that he has received a sum of money from his predecessor in office, and charges himself therewith, both he and the sureties on his official bond are estopped from showing that he did not receive such sum: Custer County v. Tunley, 13 S. D. 7, 79 Am. St. Rep. 870. But if funds in the control of a re-elected public officer are not actually produced on his settlement for his first term before the approval of his bond, as required by statute, his sureties are not estopped from showing that a defalcation, for which they are sought to be charged, in fact occurred prior to the making and approval of their bond: Independent School District v. Hubbard, 110 Iowa, 58, 80 Am. St. Rep. 271. The Acts for Which Sureties on Official Bonds are liable are discussed in the note to Feller v. Gates, 91 Am. St. Rep. 497; and the liability of sureties on the bond of an officer after the expiration of his term of office is discussed in the note to Blades v. Dewey, 103 Am. St. Rep. 932. CASES IN THE SUPREME COURT OF IOWA. EMPIRE REAL ESTATE AND MORTGAGE COMPANY v. BEECHLEY. [137 Iowa, 7, 114 N. W. 556.] PROCESS-Service by Publication.-All Statutory Requirements for the institution and prosecution of proceedings to subject to sale the property of nonresidents upon notice by publication, especially such as are of a jurisdictional character, must be strictly and literally observed, in order that the judgment entered thereon shall be of legal force and validity. (p. 249.) PROCESS-Proof by Interested Party of Service by Publication. The plaintiff in an action against a nonresident on published notice is disqualified to take the affidavit of the publisher in making proof of the publication; and a judgment based upon such proof of service is without jurisdiction, and a sale of the property thereunder ineffectual. (p. 250.) QUIETING TITLE.—A Suit to Quiet Title is not Defeated by Evidence that the grantor of the plaintiff possessed less than a full and undivided ownership, since that fact goes to the measure of relief and not to the right to maintain the action. (p. 251.) QUIETING TITLE-What Relief may be Granted. In a suit to quiet title against a sheriff's deed void for want of due proof of publication of process, the plaintiff may have his rights in the premises adjudicated, although the defendant may yet amend the proof of service and have a new and valid judgment entered. (p. 252.) Rickel, Crocker & Tourtellot, for the appellant. Lewis Heins, for the appellee. 8 WEAVER, J. The material facts in the case are as follows: In November, 1899, the defendant Beechley brought an action in the district court of Linn county, Iowa, against H. W. Kirby and B. D. Hicks to recover the amount of an alleged indebtedness of thirty-six dollars, and in aid of such action sued out a writ of attachment, which was levied upon the property now in controversy. The only service of the original notice in said proceeding was by publication, on a |