In

Am. Rep. 370; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35. See note to Mullen v. Sanborn (Md.) 25 L. R. A. 721. As to whether a party is entitled to a like exemption there is some conflict in the authorities. Bishop v. Vose, 27 Conn. 1, the defendant, a resident of another state, had come to Connecticut to attend the trial of a case which he had caused to be brought, and he was held not exempt from the service of summons; but in Machine Co. v. Wilson (C. C.) 22 Fed. 803; Id., 51 Conn. 595-it was decided otherwise as to a nonresident defendant whose attendance was necessary both as a witness and to instruct his counsel, the reason for the distinction being that a plaintiff having sought the aid of the courts of another state ought not to shrink from being subjected to their control, while the attendance of the defendant may be said to be compulsory. In Baldwin v. Emerson (R. I.) 15 Atl. 83, 27 Am. St. Rep. 741, however, this distinction was disregarded, and the reason for exempting either a plaintiff or a defendant in a civil action, because of being a nonresident, from service of summons, was declared "fanciful, rather than substantial." See, also, Ellis v. De Garmo (R. I.) 24 Atl. 579, 19 L. R. A. 561. But a different view has been taken by the great weight of authority, declaring both party and witness alike entitled to the privilege. First National Bank v. Ames (Minn.) 39 N. W. 308; Shaver v. Letherby (Mich.) 41 N. W. 677; Fisk v. Westover (S. D.) 55 N. W. 961, 46 Am. St. Rep. 780; In re Healey, 53 Vt. 694, 38 Am. Rep. 713; Andrews v. Lembeck, 46 Ohio St. 38, 18 N. E. 483, 15 Am. St. Rep. 547; Matthews v. Tufts, 87 N. Y. 568; Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48; Halsey v. Stewart, 4 N. J. Law, 367. As a party may testify in his own behalf in this state, there is no room for the distinction made between parties and witnesses, save possibly as suggested in the Connecticut cases. The reasons for exemption of service of process have been so often stated that repetition seems superfluous. They relate to the free and unhampered administration of justice in our courts, and are as applicable to service of summons or original notice as the beginning of an action by arrest on civil process under the old common-law practice. Said Elliott, J., in Wilson v. Donaldson, supra, concerning the exemption: "It is his privilege, under our laws, to testify in his own behalf; and this privilege should not be burdened with the hazard of defending other actions in our forums. Our own citizens will often derive a substantial benefit from the personal appearance of a nonresident defendant, since it may enable them to obtain a personal judgment which else were impossible. If citizens of other states are allowed to come into our jurisdiction to attend court as parties or witnesses, and to freely depart from it, the administra

tion of justice will be best promoted, since a defendant's personal presence is often essential to enable his counsel to justly c03duct his defense. The principle of state comity, too, demands that a citizen of another state, who submits to the jurisdiction of our courts, and here wages his forensi: contest, should not be compelled to under the limitation and obligation of submitting to the jurisdiction of our courts in every case that may be brought against him. While coming and departing, as well as while actually in necessary attendance at court, he should be free from the hazard of being compelled to answer in other actions. It is an evidence of respect for our laws and confidence in our courts that he comes here to litigate, and the laws he respects should give him protection. If he can come only under the penalty of yielding to our jurisdiction in every action that may be brought against him, he is deprived of a substantial right, because he is willing to trust our courts and laws with out removing his case to the federal courts. or refusing to put himself in a position where personal judgment may be rendered against him. High considerations of public policy require that the law should encourage him to freely enter our forums by granting inmunity from process in other civil actions. and not discourage him by burdening him with the obligation to submit to the writs of our courts if he comes within our borders." See, also, excerpts from numerous decisions collected in note to 25 L. R. A. 721. Of course, there may be exceptions, as Mullen v. Sanborn, supra, where a plaintiff in an attachment suit came from another state to testify, and was held not to be privileged from the service of summons while there in an action for maliciously bringing the attachment suit. Having resorted to this drastic remedy, the equal administration of justice seemed to demand recoupment of the resulting damages in the same jurisdiction. It is also to be noted that the decisions with reference to immunity of witnesses or parties from service of process or summons within the same state, but in counties other than their residence, are in conflict. See Christian v. Williams (Mo.) 20 S. W. 96. Though that question is not now involved, it may be ob served that it is probably settled by the stat utes of this state. Unless, then, the privi lege is obviated by some provision of our Code, the defendant was entitled to the immunity claimed. Section 3541 provides that "the mode of appearance may be:

(1) By delivering to the plaintiff or the clerk of the court a memorandum in writing to the effect that defendant appears, signed either by the defendant in person or his attor ney, dated the day of its delivery, and to be filed in the case; (2) by entering an appearance in the appearance docket or judge's calendar, or by announcing to the court an appearance which shall be entered of record:

(3) by an appearance even though especially made, by himself or attorney, for any purpose connected with the cause, or for any purpose connected with the service or insufficiency of the notice; and an appearance special or other, to object to the substance or service of the notice, shall render any further notice unnecessary, but may entitle the defendant to a continuance, if it shall appear to the court that he has not had the full timely notice required of the substantial cause of action stated in the petition." The object had in enacting this statute was to do away with allowing a party to specially appear for the sole purpose of advising the court that he is not there. See Hodges v. Brett, 4 G. Greene, 345. It relates to the acquirement of jurisdiction of the person, and not what shall be done with him after jurisdiction has been obtained. No exception was taken by the defendant to the manner of service or to the character of the notice, and he admits having been brought into court. What he objected to was being detained therein and compelled to plead to plaintiff's petition and litigate the issues in a jurisdiction into which the plaintiff had no right to bring him. The service is merely the method of invoking jurisdiction. The immunity extends further, and shields him from litigating the controversy in the place where he was exempt from service. If he had failed to appear, this would have been a waiver of his privilege, and a valid and binding judgment might have been rendered against him. Thornton v. Am. Writing Mach. Co., 83 Ga. 288, 9 S. E. 679, 20 Am. St. Rep. 320; Freeman on Judgments, § 296; note to 25 L. R. A. In enacting the above statute, and in authorizing suit against a nonresident in any county of the state where found, the Legislature had no thought of interfering with a rule concerning exemption from service of notice. Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48; Fisk v. Westover (S. D.) 55 N. W. 961, 46 Am. St. Rep. 780. These statutes, like others, were enacted with reference to the great body of law as it existed, and should not be isolated therefrom when being construed. The suit contemplated is such as may be properly instituted, and against which the defendant is not shielded by the privileges of his situation. The circumstances were such as to bring the case clearly within the rule announced. The defendant was bound to be in attendance of court to avoid the forfeiture of his bond. He came also as a witness in his own behalf. His stay was not unreasonable, and he should have been allowed to go hence from the jurisdiction of the court, which had been illegally invoked against him. The remedy by motion with which defendant availed himself was that generally recognized by the authorities as appropriate. Indeed, it would seem that no other would have been effective 97 N.W.-69

in relieving him from in some way responding to the petition and dismissing him from the court's jurisdiction. Reversed.

STATE v. MAHONEY.

(Supreme Court of Iowa.

Jan. 15, 1904.)

BURGLARY PROSECUTION FOR ATTEMPT PROOF OF COMMISSION-VARIANCE-INSTRUCTIONS REASONABLE DOUBT - DEFINITION— EVIDENCE.

1. In a prosecution for an attempt to break and enter a building, defendant might be convicted if he was an accomplice or aided and abetted some person in breaking and entering the building.

2. In a prosecution for an attempt to break and enter a building, evidence examined, and held sufficient to warrant a conviction.

3. In a prosecution for an attempt to break and enter a building, proof of the breaking and entering is not a variance, but establishes the attempt.

4. Where, on a prosecution for an attempt to break and enter a building, the evidence was sufficient to show that defendant aided the one who broke and entered, and defendant requested no instructions, an instruction using the language, "concerned in the commission of the offense and co-operating with the person committing it in its commission," without an instruction explaining the language, was not

error.

5. Failure to define reasonable doubt is not error, in the absence of any request for a definition.

* **

6. The court charged that if the jury should find "beyond a reasonable, well-founded doubt that defendant they should find him. guilty, but if on the whole evidence they had a reasonable doubt of guilt they should acquit. Held, that the use of the phrase "well-founded" was not error, as the jury must have known that it meant "not baseless, or founded on mere speculation, but real and substantial."

Appeal from District Court, Polk County; Josiah Given, Judge.

Indictment for an attempt to break and enter a building. Trial to a jury. Verdict and judgment of guilty, and defendant appeals. Affirmed.

Stewart & Moen, for appellant. Chas. W. Mullan, Atty. Gen., Lawrence De Graff, Asst. Atty. Gen., and Jesse A. Miller, Co. Atty., for the State.

DEEMER, C. J. At about 10 o'clock in the evening of December 20, 1902, the night watchman of the Shannon Mott Flour Mills, in the city of Des Moines, discovered a light in a small building used by the company for an office. This light disappeared, then reappeared, only to be extinguished and again appear. Surmising that something was wrong, the watchman crawled along the south side of the building to its front, on Fifteenth street, and when near the southeast corner of the building discovered the defendant standing in a recess or alcove in the building where he would practically be out of sight, looking up Fifteenth northward toward its junction with

5. See Criminal Law, vol. 14, Cent. Dig. § 2000.

tions and the proof. In a sense the commission of an offense involves an attempt to commit it. It may not be a degree of the main offense, nor be necessarily included therein, so as to require the court to charge with reference thereto in every case where the commission of an offense is charged. But, as the greater includes the less, it is manifest that in every case where an attempt is charged proof of the actual commission of the offense establishes the attempt. If the offender actually commits the offense, he necessarily attempted to do it, and proof of the commission of the actual offense does not constitute a variance. We have held that a conviction of petit larceny before a justice of the peace is a bar to a subsequent prosecution for larceny from the person based on the same transaction. The only reason for such a holding was that the one is so involved in the other that an acquittal for one is a bar to the other. Other illustrations might be given, but this will suffice. The evidence was sufficient to show that the defendant aided and abetted, was concerned in, and co-operated with the person who in fact broke and entered the building. While an instruction defining these terms might well have been given, yet as applied to the facts, and in view of defendant's failure to make any requests, we think there was no prejudicial error in using the words, "concerned in the commission of the offense and co-operating with the person committing it in its commission," without further explanation. These words are familiar to every one of sufficient intelligence to sit upon a jury. They are plain and unambiguous, and, in the absence of a request for more specific instructions, are sufficient.

The same may be said with reference to the words "reasonable doubt." An attempt at explanation of this term is generally confusing, and we are quite ready to agree with those courts which hold that an attempt at elucidation is apt to lead to misleading refinements. From this it is not to be understood that we think it improper to give the usual stereotyped instruction with reference to reasonable doubt. Familiar with the practice generally prevailing in this state, and cognizant of the fact that it is usual to give an instruction with reference to reasonable doubt, we do not, of course, mean to condemn such a practice. What we do hold in this case is that, in the absence of request, it is not error to omit an explanatory instruction defining "reasonable doubt."

The last point made is that the court erred in saying that a reasonable doubt must be "well-founded." The expression is certainly a loose one, and not to be commended. The term "well-founded" has a double significance. It may mean founded on good reasons, or it may be defined as not baseless or having no support. In the latter sense the instruction is not erroneous, for it is well settled that a doubt, to be reasonable, must have some basis either in the evidence or from a lack of evi

dence on some material proposition. In other words, it is not a barely possible one, nor one sought after, not a capricious nor an imaginary one, nor one based upon a surmise or groundless conjecture. In other words, it must be a rational or substantial one, having some basis in reason, although it need not be such a one as the jurors may be able to give a reason for. In what sense was the jury in this case justified in believing the words "wellfounded" were used? Taking the paragraph of the instruction as a whole, and construing it in the light of all the language used, there is no doubt, we think, that they understood the words used as not baseless or founded on mere speculation, but real and substantial. In the latter part of the instruction the jury is told, if it had a reasonable doubt of the defendant's guilt, it should acquit. Taking the instruction as a whole, there was no error of which defendant may justly complain, and the judgment is therefore affirmed.

KLAY v. MCKELLAR et al. (Supreme Court of Iowa. Jan. 15, 1904.)

FRAUDULENT CONVEYANCES-SETTING ASIDE
DEED-BURDEN OF PROOF-QUIT-
CLAIM DEED.

1. In an action by a general creditor to set aside as fraudulent a deed from the debtor to his brother, the burden was not on defendants to show good faith and payment of consideration.

2. A mere general creditor has no equity or lien which can be asserted against a purchaser of lands from the debtor, though the purchaser takes by a quitclaim deed.

Appeal from District Court, Blackhawk County; Franklin C. Platt, Judge.

Action in equity to set aside certain conveyances. Decree denying the relief asked, and plaintiff appeals. The issues are more fully stated in the opinion. Affirmed.

H. E. Long and Burns & Stewart, for appellant. O. G. Reiniger and Boies & Boies, for appellees.

WEAVER, J. In January, 1890, Nelson P. McKellar became the owner by inheritance from his father of an undivided oneeighth interest in certain real estate in Blackhawk county, Iowa. On March 25, 1897, said Nelson P. McKellar conveyed his interest in said lands by quitclaim deed to his brother Edward McKellar, who in turn, on March 24, 1900, conveyed the same to another brother, John McKellar. In the year 1899 Nelson P. McKellar died intestatè, and plaintiff is his duly appointed administrator. During his lifetime, and about the year 1896, he became indebted to the Geiser Manufacturing Company in a considerable sum, a part of which indebtedness remained undischarged at his death. He left no estate applicable to the payment of claims, unless the

1. See Fraudulent Conveyances, vol. 24, Cent. Dig. $$ 801, 813.

real estate already mentioned can be subjected thereto. Plaintiff alleges that the conveyance from deceased to Edward McKellar was voluntary, and fraudulent against existing creditors, and that John McKellar, the present holder of the legal title, received the conveyance to himself with knowledge of such fraud. The prayer of the petition is that these conveyances may be set aside and the lands subjected to the payment of the debts of Nelson P. McKellar. The averments of fraud are denied by the defendants, who allege the conveyances were in good faith and for value.

1. Primarily the case turns entirely upon the question of fact raised by plaintiff's allegation that the conveyance by Nelson P. McKellar to Edward McKellar was of a voluntary or fraudulent character. If this charge be not sustained, the relief asked was properly denied. The appellant strenuously insists that the evidence offered in behalf of defendants as to the facts and circumstances of this conveyance cannot be considered, because of the alleged incompetency of the witnesses under the statute. Code, § 4604. For the purposes of this branch of the discussion, we will assume the objection is well taken, and that we have the case before us precisely as appellant made it by his testimony in chief. The plaintiff's testimony discloses simply this state of facts: The former ownership of the property by Nelson P. McKellar; his indebtedness to appellant, contracted during the period of such ownership; his conveyance of the property by quitclaim to Edward; the conveyance by warranty deed from Edward to John; the death of Nelson P. McKellar; the due allowance of appellant's claim against the estate; the insolvency of the estate; and the value of the property in controversy. The value of the interest of Nelson P. McKellar in the lands at the date of his conveyance to Edward is variously estimated by the witnesses from about $800 to a considerably larger sum. Taking the testimony as a whole, we are inclined to view that such value was not materially in excess of the smaller sum. The deed from Nelson P. to Edward expresses a consideration of $800; and, unless we are to hold that the burden is upon defendants to show the good faith of that conveyance and the payment of the consideration, there is a manifest absence of evidence to justify a decree in plaintiff's fa. vor. To sustain the proposition that the burden does rest upon the defendants, we are cited to Sillyman v. King, 36 Iowa, 207; Falconbury v. McIlravy, Id. 488; Hogdon v. Green, 56 Iowa, 733, 10 N. W. 267; Rush v. Mitchell, 71 Iowa, 333, 32 N. W. 367; Gardner v. Early, 72 Iowa, 518, 34 N. W. 311. An examination of these cases reveals that not one of them affirms the rule for which appellant contends. In Sillyman v. King the plaintiff stood in the position of a holder of an unrecorded deed from the defendant,

King.

With that deed outstanding (though not of record), King, in fraud of Sillyman's rights, conveyed to Lancaster, who had betice of the fraud, and Lancaster conveyed to Dolton. Now, as King had no title what ever to convey to Lancaster or Dolton, and as Dolton's right to hold the land rested solely on a purchase by him in good faith and for a valuable consideration actually paid, it was properly held that the burde rested upon him to establish these facts. Each of the other cases cited is of the same purport. In the case at bar the grantor, Nelson P. McKellar, had title to the proper ty, and had an undoubted right to sell and convey the same by perfect title to the purchaser. Appellant, as a mere general creditor of the grantor, had no equity in the land. Edward McKellar had an equally undoubted right to purchase and take title to the land It is true that dealing between parties intimately related, resulting in delay or hindrance to creditors, will be scrutinized closely, and promptly set aside if fraud be established; but, so far as we are aware, that rule has never been so far extended as to hold that a deed, fair in form, from one brother to another, is presumptively fraudulent or voluntary. Bump on Fraud. Con. 54; Wait on Fraud. Con. §§ 242, 271. The cred itor may, however, allege the fraudulent or voluntary character of the conveyance, and, if the charge be made good by proof, may subject the property to the payment of his claim. Appellant herein makes the neces sary allegations, but there is nothing either in the averments of his petition or in the facts developed by his testimony which releases him from the operation of the onlinary rule which casts the burden of proving fraud upon him who alleges it. Such was the holding of this court in Allen v. Kirk, 1 Iowa, 667, 47 N. W. 906; Oberholtzer v. Hazen, 92 Iowa, 602, 61 N. W. 365; Cathcart v. Grieve, 104 Iowa, 334, 73 N. W. 835; Conry v. Benedict, 108 Iowa, 666, 76 N. W. 840, 75 Am. St. Rep. 282.

It is further said by appellant that as Edward McKellar took a conveyance by quit claim he took it "with notice of the right of the Geiser Manufacturing Company to subject the property" to the payment of the debt against his grantor, and consequently holds the title subject to that right. The authorities relied upon in this connection (of which Postel v. Palmer, 71 Iowa, 157, 32 N. W. 257, is a type) are not in point. They go no farther than to hold that a person holding a conveyance by quitclaim deed is bound to take notice of defects in his grantor's title. He is not an innocent purchaser, and cannot assert his title against a prior unrecorded deed from his grantor. It would seem to need no argument to make clear the distinction between these cases and the one at bar. As we have already noted, the Geiser Manufacturing Company had neither ti tle nor equity in the land. The fact that in