each other and the crime charged as to show a common purpose and intent in the commission of all of them, and a continuity of purpose instigating the whole series of like offences.

This is a class of evidence introduced for the mere purpose of explaining the motive and intention of the defendant in doing the act charged as a crime. Roscoe's Crim. Ev. 92. There is not in this evidence any proof whatever that the arson was committed to conceal the former crimes, or to destroy the evidence of them, or that the three crimes, all of them, were committed to carry out any common design or intent to injure or ruin the witness Brishers. The paramount purpose and design of larceny and forgery are gain and personal advantage, while those of arson are injury from malice, and if these motives are absent from these acts respectively, the acts may not constitute crimes, and, therefore, these different motives and purposes may not be confused or blended in dissimilar offences without affecting their degree of criminality. Russ on Cr. 146, 788, 1034.

It would require strong evidence to prove that crimes so dissimilar in purpose and intent were committed with a common purpose and intent, and therefore bore such relation to each other that proof of one would be proof of the intent of the others, and bring the case within the rule that offences of like nature and intent may be given in evidence to convict of a subsequent crime, or to prove the intent of such crime, or as tending to prove such intent.

In Benedict v. The State, 14 Wis. 425, the same rule is laid down as to the exhibition of weapons and previous threats as affecting the question of intent in a future homicide, and as showing the disposition of the defendant in the commission of the act and such evidence is allowed because of the relation between threats of this character and the crime of murder, in general purpose and intent; and it must, we think, be assumed that upon the trial of arson proof that the defendant just previously committed the crime of larceny is held by this court, in Schaser v. The State, 36 Wis. 430, to have been improper, as not relevant and pertinent, upon the ground that the two crimes had no relation with each other in purpose and design, so as to affect the question of intent in the latter. We do not decide that it may not be shown by testimony sufficiently strong that even a previous larceny or forgery had the common purpose and design of a subsequent malicious burning, and bore such a relation to the arson, in this respect, that proof of the former might affect the question of

intent in the commission of the latter crime; but such evidence is entirely wanting in this case, as reported, and may have been given on the trial. The answer to the second question must, therefore, be given hypothetically in the affirmative.

SAMUEL W. WATKINS, Respondent, vs. OTTO ZWIETUSCH and others, Appellants.

Filed November 6, 1879.

1. Where the administratrix of an estate (being the widow of the intestate) purchased with the money of the estate, and had conveyed to her, an outstanding tax title, held, that it enured to the benefit of one who held the original title as heir at law of the intestate.

2. In assessing the benefits which would accrue to adjoining lots from a contempiated public improvement the board of public works of Milwaukee added fifty per cent. to the estimated cost of the work to be done in front of each lot, and adopted the amount so determined as the measure of such benefits, irrespective of the actual benefit to the lot. It appears that the several lots were very differently affected by the improvement. Held, that there was a total failure to exercise the judgment of the board in determining the actual benefits, and the assessment was void. Johnsm v. Milwaukee, 40 Wis. 315.-STATE REP.

Appeal from Milwaukee circuit court.

E. Mariner, for respondent.

Cotzhausen, Sylvester & Scheiber, for appellants.

ORTON, J. It is apparent from the evidence that the respondent held the legal title to the premises in question as an heir at law of Charles K. Watkins, deceased, and that the tax titles of Thomas M. Knox inured to his benefit by being bought in by, and conveyed to, Caroline B. Watkins, the widow of said Charles, and one of the administrators of his estate, by the use of the moneys belonging to the estate.

The only remaining question is of the validity of the tax deed of the appellant, which is based upon special assessment of benefits by the grading and improvement of streets in the city of Milwaukee. The learned circuit judge found, as a fact proved, "that in making such assessments of benefits the said board of public works determined the amount of benefits by adding fifty per cent. to the cost of the work to to be done in front of each lot, and part of lot, as estimated by said city engineer, and adopted such cost as the measure of benefits, irrespective of the actual benefit to the lot." It was not found and does not clearly appear from the evidence whether such a pretended assessment was made upon actual view of the premises or not, and it is not material whether it

was so made or not, when it is so clearly and expressly found that the amounts of such assessment were determined arbitrarily and upon a false and illegal basis, "irrespective of the actual benefit to each lot."

It is quite obvious from the testimony that the several lots were very differently affected by the improvement. If the assessment had been made according to law, and the actual benefit to the several lots had been at all judicially considered, then such quasi judicial determination might not be questionable, in this collateral manner. But this assessment was made in palpable and gross violation of the law, and of common reason and justice. Here was no mere error of judgment, but the failure to exercise any judgment at all. The actual benefit to each lot, which is the only legal basis of such estimate and assessment, is boldly repudiated, and an arbitrary basis adopted, which precluded any consideration of such benefit or the exercise of any judgment in respect to such benefit. But it is needless to further discuss the question, when the whole subject has been so fully and so ably treated by the chief justice in Johnson v. The City of Milwau-. kee et al. 40 Wis. 315, and the identical question here involved was decided in that case. The invalidity of the assessment in that case is made to rest upon precisely the same ground of objection here, and not upon the ground that it was made without viewing the premises. But the language of the chief justice is in itself clearer and more explicit than it can be made by comment:

"It does not appear that the board of public works ever viewed the premises assessed as, required by the statute." "This alone might be fatal to the assessment. But we pre

fer to rest the invalidity of the assessment in this case upon the ground that the commissioners of public works based the assessment upon cost, instead of the actual benefits positively and especially accruing to the property assessed, in con-sequence of the improvement."

To say anything further would be to weaken the force of a decision perfectly conclusive of the question. The finding of the court was sustained by the evidence. The judgment of the circuit court is affirmed, with costs.

SUPREME COURT OF IOWA.

MAURICE BURROWs, Appellee, vs. CRIS. WADDELL, Appellant, and PHIL. SCHALLER, Intervenor.

Filed October 25, 1879.

In a suit in replevin against a sheriff, a third party intervened, claiming title in himself. Defendant answered, claiming the title was in plaintiff, and the issue was left between defendant and intervenor. Held, that defendant was not entitled to recover; that to recover he must do so on the strength of his own title, and cannot rely on the weakness of his adversary.-[Ed.

Appeal from Sac circuit court.

Action to recover specific personal property. Trial to the court, judgment for the intervenor, and defendant alone appeals.

Davis & Elwood and C. D. Goldsmith, for appellant.

Lot Thomas, for intervenor.

SEEVERS, J. The plaintiff in his petition alleged the property was taken from him by the defendant, as sheriff, by virtue of an execution against Thomas A. Burrows. The defendant in his answer justified the taking under the execution. At this stage the petition of intervention was filed, in which the intervenor claimed he was entitled to the possession of the property under a bill of sale, and that he had served a written notice to this effect on the deputy sheriff. The defendant answered the petition, and stated the bill of sale "was of no force and effect, and transferred no title to said Schaller; that said Tom H. Burrows, at the time of making said conveyance, had no title or interest in said property; that the same was then and has ever since been the property of Maurice Burrows." The plaintiff seems to have abandoned the case, and the issue between the intervenor and defendant alone was submitted to the court. The intervenor gave evidence tending to show his right to the possession. That such evidence was prima facie sufficient cannot be doubted. Indeed, we do not understand counsel for appellant to claim that the intervenor did not introduce evidence entitling him to recover, but they insist that, if the court had not rejected evidence offered by them, they could have shown he was not so entitled. It is not alleged in the answer to the petition of intervention that the bill of sale was fraudulent, but the defendant avers that the property belonged to Maurice Burrows, and he sought to prove this fact. The court

rejected the evidence, and we think rightly. It was no defence, under the circumstances of this case, to prove such fact. One or the other of these parties was entitled to the possession. The plaintiff having abandoned the case, the defendant was entitled to the possession under the execution, or the intervenor under the bill of sale. There was no other issue. The intervenor, if he succeeded at all, must do so on. the strength of his own title, and not by reason of the weakness of that of the defendant. It was held in Reed v. Reed, 13 Iowa, 5, that a defendant in replevin could not defeat the plaintiff by showing title in a third person. The levy was made by a deputy sheriff, and written notice of the intervenor's ownership and right to the possession was served on him. This, under the statute, is sufficient.

Affirmed.

CASPER WEIL, Appellee, vs. HELENA CHURCHMAN and another, Administrators, Appellants.

An instrument in the form of a mortgage provided that the same should be void on the payment of certain sums at certain times. There was no promise to pay such sums in the mortgage, or in any instrument outside of the mortgage. Held, that there could be no personal judgment against the mortgagor or his estate for any deficiency after sale on foreclosure.-[ED.

Appeal from Warren circuit court.

This action is brought on the following instrument: "This indenture, made this third day of February, A. D. 1874, (eighteen hundred and seventy-four,) between Michael Churchman and Helena Churchman, his wife, of Warren county, and state of Iowa, of the first part, and Casper Weil of Warren county, and state of Iowa, of the second part, witnesseth: That the party of the first part, for the consideration of $1,353 65-100, the receipt of which is hereby acknowledged, do by these presents grant, bargain and convey, unto the said party of the second part, his heirs and assigns forever, the following described real estate lying and being situated in the county of Warren and state of Iowa, to-wit: The north-east quarter (N. E. ) of the north-east quarter (N. E. ) of section number seventeen, (17,) township number seventy-six, (76,) north of range number twenty-five, (25,) west of the fifth P. M., Iowa.

"It is fairly understood that when the mortgage is paid off, Michael Churchman and Helena Churchman bind themselves,