▲ note dated in one State and signed by one maker there, but signed by other makers and delivered in another State, is a contract of the latter State.

A

CTION on a promissory note. The opinion states the facts. The plaintiff had judgment below.

Warner & Bullock, for appellants.

Harvey & Young, for appellee.

DAY, J. The court, we think, erred in holding that the contract upon which the note was executed was to be performed in Missouri, and that the law of Missouri was the lex loci contractus. The evidence shows the following state of facts: The note in question was given for money borrowed in equal sums by Uriah Wills and S. Sprague. A. T. Grimes is a surety noon the note. The defend

Hart v. Wills.

ants Wills and Sprague had some conference in Iowa with the plaintiff, Buton Hart, respecting Wm. M. Hart, who lived in Missouri. Subsequently the defendants Sprague and Buton Hart visited Wm. M. Hart in Missouri, where the note in question was signed by Sprague. Wm. M. Hart then gave Buton Hart a package of money to bring to Iowa, and directed him, when the note was executed by the other parties, to pay the money to the defendants. Wills and Grimes signed the note in Decatur county, Iowa, and then the note was delivered and the money was paid over. Under these circumstances the note must be regarded as an Iowa contract, and governed by its laws. In 2 Pars. on Notes and Bills, p. 327, it is said: "The lex loci contractus depends not upon the place where the note or bill is made, drawn, or dated, but upon the place where it is delivered from drawer to drawee, from promisor to payee, from indorser to indorsee. It has been frequently stated that a note is nothing until delivered; and that indorsement is not merely writing, but transferring from the hand of the one party to that of the other." See, also, cases cited in note z. It is urged by appellee that if no place be designated in a note as a place of payment, the law of the place where it is made determines its construction, obligation and place of payment, citing 2 Pars. on Notes and Bills, p. 333. This is true if the making of a note be regarded as including the delivery, but not otherwise. The appellee further insists that the dating of the note at Princeton, Missouri, designates that place as the place of payment. No authority is cited in support of this position, and we think it is not maintainable. In Cook v. Moffat, 5 How. 295, notes drawn and dated at Baltimore, but delivered in New York in payment of goods purchased there, were held to be payable in and governed by the laws of New York. In that case GRIER, J., said: "Although the notes purport to have been made in Baltimore, they were delivered in New York in payment of goods furnished there, and of course were payable there, and governed by the laws of that place." See, also, other authorities cited in 2 Pars. on Notes and Bills, p. 327, note z. The court erred in holding that the defense of usury could not be considered. The cause must be remanded for a new trial.

Judgment reversed, and cause remanded.

Golden v. Newbrand.

GOLDEN V. Newbrand.

(52 Iowa. 59.)

Master and servant — liability of master for servant's criminal trespass.

An armed watchman, employed by the owners of a brewery to guard their property and preserve the peace, pursued a person acting on the premises in a drunken and disorderly manner, and while he was retreating, killed him. Held, that the employers were not liable.

CTION of damages for maliciously killing of a person. The opinion states the facts. The defendants had judgment below.

Williams & McMillen, for appellant.

John F. Lacey, for appellees.

SEEVERS, J. [Omitting an unimportant matter.}

II. Using the language of appellant's counsel, the following facta were established: "That the defendants, ever since 1876, have been owning and operating a brewery in the city of Oskaloosa, Iowa, under the firm name and style of Blattner & Newbrand, and that Charles Blattner, during all that time, has been and is now their superintendent, managing and running the business, and that one Max Roenspeiss during all that time has been and is now a hand employed in the business there under the control of Charles Blattner, and paid his wages by him out of the firm moneys, and that a part of his business was to guard the brewery, and he slept there at night for that purpose, and that there was a revolver kept there by the firm, and Roenspeiss had access to it and slept with it under his pillow at night; that defendants were engaged in the business of manufacturing and selling beer, and like all beer saloons, rows were likely to occur, and Roenspeiss was empowered to protect the property and to quell disturbances, and worked there in the business generally.

"In the afternoon of the day David Golden was killed, he and his brother were there drinking beer, and got kicked out of the brewery. Afterward, about supper time, they went back to the brewery and drank some more beer, and being a little drunk, mad and crazy, John Golden got into a little fracas with John Mackey, VOL. XXXV-33

State v. Whitcomb.

and they skirmished until they got out of the brewery. In the meantime Max Roenspeiss came out of the office, where the revolver was kept, and approached the east door, and just about that time David Golden, being out of doors on the east side of the brewery, threw a brick into the brewery, and hit the copper cooler, and Roenspeiss started out at the east door after him, and Dave turned and ran, when Roenspeiss, after going fifteen or twenty feet from the brewery, fired and shot Dave in the back of the head, and he fell forward on his face, about forty or fifty feet from the brewery."

Conceding the evidence was as above stated, it did not, in our opinion, show that defendants were liable. It was therefore immaterial, and was properly excluded. The theory of appellant is that Roenspeiss was employed to guard and protect the brewery, for which purpose he was furnished with a pistol, and that he shot the deceased while in the line of his duty. Without determining whether if this was all, the defendants would be liable, we think the fact that the deceased was retreating from the brewery, at the time the fatal shot was fired, shows conclusively it was not fired for or with the intent of protecting the brewery, or in the line of Roenspeiss' duty. If Roenspeiss had shot with the pistol from the brewery a person peaceably passing along the highway, the defendants clearly would not have been liable, and we think there is no essential difference between the case supposed and the one at bar. To protect the brewery did not require Roenspeiss to shoot and kill a person who was retreating therefrom. The killing was not, therefore, done in the line of the duty Roenspeiss was employed to perform.

[Omitting a point of evidence.]

Judgment affirmed.

STATE V. WHITCOMB

(52 Iowa, 85.)

Criminal law-adultery-void divorce — good faith.

A decree of divorce, subsequently adjudged void, is no defense to an indict ment for adultery by means of a second marriage, contracted in reliance upon the validity of the decree.*

*To same effect Fox v. State (3 Tex. Ct. App. 329), 30 Am. Rep. 144.

State v. Whitcomb.

ONVICTION of adultery. The opinion states the case.

CONVICTION

A. F. Brown and A. T. Cole, for appellant.

J. F. McJunkin, attorney-general, for State.

BECK, C. J. I. The evidence tended to prove that defendant and Roana Whitcomb were married in 1855, and that defendant prosecuted an action for a divorce in the District Court of Floyd county, resulting in a decree divorcing the parties, December 4, 1872. On the 7th day of January, 1873, defendant was married to Rachel Patterson, with whom the crime of adultery is charged to have been committed. November 13, 1873, Roana Whitcomb filed a petition in the Floyd District Court to set aside and annul the decree of divorce on the ground that it was procured by the fraud of defendant. The venue of this case was changed to Chickasaw county, and the decree of divorce was by proper decree, upon a trial, set aside and declared void on account of the fraud of defendant practiced in procuring it. The cause was brought upon appeal to this court, and the judgment of the District Court was here affirmed. See 46 Iowa, 437.

The evidence introduced establishes the marriage of defendant and Roana. The defendant relied upon the divorce obtained by him as a defense to the indictment. The court instructed the jury as to this defense, in the following language:

7. The defendent has offered in evidence a decree of divorce granted to him by the court in Floyd county, and to rebut this the State has introduced in evidence a further decree in that case rendered by the court of Chickasaw county, which adjudges that the decree rendered by the court of Floyd county was without jurisdiction and was obtained by the fraud of this defendant perpetrated in that case. The effect of the judgment and decree in the District Court of Chickasaw county is to set aside the decree rendered in Floyd county and after the judgment was entered in the case in Chickasaw county, the other decree was no longer of any validity and is no defense for the defendant for any unlawful act of his committed since that time; and if you find that the defendant and Roana were lawfully married to each other and that the defendant has, within the eighteen months prior to the 5th day of October, 1877, had sexual intercourse with the woman Rachel described in