all the evidence as before us, we think we would not be warranted in disturbing the verdict as not supported by the evidence. The above considerations dispose of all the objections urged by counsel of appellant in argument. We have, however, examined the entire record, and we discover no error prejudicial to the defendant.

Affirmed.

AUGUST STORMER, Appellant, vs. J. J. HENZIE and others,

Appellee.

Filed December 10, 1879.

In a case where less than $100 is in controversy, certified to this court as involving a question of law, the certificate should show what the question is.-[Ed.

Appeal from Muscatine circuit court.

The petition shows that the plaintiff purchased of the defendant Henzie eighty acres of land, and received of him a deed of the same, with covenants of warranty; that the land was apparently subject to a deed of trust executed in 1859, and given to secure a note for $568, due September 9, 1860; that the collection of the note had become barred by the statute of limitations, but that the deed of trust remained a cloud upon the plaintiff's title. The petition further states that the plaintiff had demanded in writing, of the defendant Henzie, that he should cause the apparent encumbrance and cloud to be removed, but that he had failed to do so, and that the plaintiff had been obliged to procure the services of an attorney for that purpose. What persons besides Henzie, if any, were made defendants, does not appear. But the plaintiff prays that the deed of trust be cancelled, and also judgment for attorney's fees against Henzie. The defendant Henzie demurred to the petition upon six different grounds, and the demurrer was sustained, and judgment rendered against the plaintiff for costs. He appeals.

G. G. Carstens, for appellant.

J. Carskaddan, for appellee.

ADAMS, J. The case is certified to this court as being one in which the amount in controversy is less than $100, and involving a question of law, upon which it is desirable to have the opinion of supreme court, but the certificate does not show what the question is. Under the rules of court and repeated decisions the certificate must be regarded as insufficient. Appeal dismissed.

PHINEAS WEED, Appellant, vs. C. H. PARSONS, Appellee.

Filed December 10, 1879.

Notice of appeal not appearing by the abstract to have been served on appellee or clerk of the court below, and there being no appearance of appellee here, this court has no jurisdiction in the cause.-[ED.

Appeal from Butler circuit court.

G. C. Wright, for appellant.

No appearance for appellee.

SEEVERS, J. There is no evidence contained in the abstract that a notice of appeal has been served on the appellee or the clerk of the circuit court. This court, therefore, does not have jurisdiction of the cause. The defect cannot be said to have been waived because there is no appearance for the appellee. The cause must be stricken from the docket.

LIZZIE M. AULD, Appellee, vs. G. W. CHAMBERLAIN, Administrator, and others, Appellants.

Filed December 10, 1879.

Evidence in this case held to warrant the finding of the court.-[ED.

Appeal from Fayette circuit court.

Action to recover for work and labor performed by the plaintiff in the family of and for Ira Burbank, deceased, from March 1, 1872, to July 3, 1877. There was a trial to the court, judgment for the plaintiff for $750, and the defendants appeal.

J. W. Rogers & Son, for appellants.

Ainsworth & Hobson and Rickel & Clements, for appellee. SEEVERS, J. The errors assigned are that there is not sufficient evidence to warrant the judgment, and that the damages are excessive. Each of us have separately read and considered the evidence, and separately reached the conclusion we cannot interfere, under the settled practice of this court, with the judgment below. It is impossible to say the court was actuated by either passion or prejudice. On the contrary we are of the opinion the evidence fully warrants the finding.

Affirmed.

L. J. ALLEMAN, Appellant, vs. HENRY STEPP, Appellee.

Filed December 11, 1879.

Question not raised in the court below will not be considered on appeal. Evidence tending to show that a witness' memory and mind has been impaired by sickness or injury, is competent, as going to the credibility of his testimony, and party is not obliged to rely solely on cross-examination.-[ED.

Appeal from Boone district court.

Action at law to recover for services rendered to defendant by plaintiff, who is a surgeon. There was a judgment for plaintiff, from which he appeals. The facts of the case appear in the opinion.

Holmes & Reynolds, for appellant.

Kidder & Crooks, for appellee.

BECK, C. J. 1. The petition declares upon an account for services rendered by plaintiff as a surgeon, in reducing fractures of the bones of defendant's leg, the amputation of the thigh, and attendance until the defendant's recovery. The answer admits the services, but, as a defense, pleads that there was a difference between the parties as to the true and just amount of plaintiff's bill, and thereupon they had a settlement, and plaintiff agreed to charge $250 for his services, which defendant then undertook to pay. Under this settlement it is alleged that, after deducting credits given by plaintiff, in his account, there remains due plaintiff the sum of seven dollars, and no more, and for that amount defendant offers to confess judgment.

2. The plaintiff insists that the defence set up in the answer is not good, as it presents an accord and satisfaction which cannot be supported in this case, for these reasons: First, there is no consideration shown, and the defence, and the evidence in support of it, show that the plaintiff received no consideration for relinquishing a part of his just claim; second, the agreement pleaded and shown was a mere executory contract, while an accord must be executed. This objection is sufficiently answered by the consideration that it was not in any manner raised in the court below. The answer pleading the defence was not assailed by demurrer, nor was objection made to the introduction of the evidence offered to support the answer, nor was any question involving the objection raised upon the instructions to the jury. If plaintiff's view of the law be correct, his objections come too late. 3. The defendant testified to the settlement as alleged in

his answer. It was denied by plaintiff. It can hardly be said that defendant's testimony is corroborated, but the abstract does not purport to give all the evidence.

The plaintiff introduced a physician who testified that he had known the defendant from a time prior to the amputaof his limb. He was then asked to state the condition of defendant's mind as to memory before and after the injury, to state the effect of the injury upon defendant's memory as to money and finances in particular, and to state whether, in the opinion of the witness, the mind of defendant was greatly impaired. The evidence, upon defendant's objection, was rejected. We think the ruling erroneous. Surely, if defendant was suffering from an impaired mind, which affected his memory, the fact would tend to lessen the credit to be given to his testimony. Can it be doubted that the credibility of a witness may be assailed by showing his want of mental capacity? It is said that the infirmity of memory should be shown by cross-examination. But it might not be made to appear in that way, though it really existed. The witness was a physician, and knew the defendant before and after the injury, and the condition of his mind as to memory. He was surely competent to state the fact of defendant's loss of memory, and, in our judgment, he was competent to state his opinion of the defendant's mental condition, based upon his knowledge and observation of the defendant before and after the injury. If, in this way, it should be made to appear that defendant's memory was impaired by disease, his credibility would be impeached. Under familiar rules of law the credibility of a witness may be impeached by showing moral defects. Mental defects in the witness, as loss or impairment of memory, will, according to the observation of all men, detract from the credibility otherwise due a witness, just as surely as do moral defects.

It is not reasonable to hold that the law will permit impeachment of a witness by showing the moral defects of his character, and will not permit impeachment by proof of defects of memory caused by disease of the body or mind.

Under the rules of evidence and statutes of this state a witness may be impeached by proof of his bad moral character, and that his reputation for veracity is so low that he cannot be believed under oath. The impeaching witness notes his conclusions, belief or opinions, based upon knowledge of the character and reputation of the witness whose credibility is brought in question. The like course was pro

posed in this case, to impeach the defendant, by showing his mental defects. The testimony excluded was of the conclusion, belief and opinion of the witness, based upon knowledge that defendant's memory was impaired by disease affecting the mind. It is proper to say that the rule we recognize extends no further than to permit the impeachment of a witness by showing an abnormal condition of the mind caused by disease or habits which impair the memory. It will not permit evidence of the want of strength or accuracy of memory of a witness whose mind is not shown to be in an abnormal condition.

While it is true that the memories of men of sound physical and mental health are not equally strong and accurate, or they are unequal in other faculties of the mind and in physical development, the law can devise no standard of measurement or test of the mind in its normal condition. It cannot be compared with the mind of others, in view to impeach or support the memory. Our conclusion upon this point of the case finds support in the following authorities : Isler v. Dewey, 75 N. C. 466; Fairchild et al. v. Bascomb et al. 35 Vt. 398; 2 Phillips' Evidence, Cowan & Hill and Edward's note, 950, note 596; Sisson Ex. v. Conger, 1 Thompson & Cook, (N. Y. Sup. Ct.) 564; Rivara v. Ghis, 3. E. D. Smith, (N. Y. Com. Pleas,) 264; Livingston v. Kiersted, 10 Johnson, 362. See also, as tending the same way, Fleming v. The State, 5 Humph. 564; Tuttle v. Russell, 2 Day, (Conn.) 201; McDonald v. Preston, 26 Georgia, 528; Gibson, J., arguendo, in Brindle v. McIlvain, 10 S. & R. 285. A contrary doctrine is held in Goodwin v. Goodwin, 20 Ga. 600. Other questions in the case, as it is not probable they will again arise upon another trial, need not be considered. For the error in excluding the evidence offered by plaintiff the judgment of the district court is reversed.

SEEVERS, J. I concur in the result reached in the foregoing opinion, but as I understand it goes further than I am willing to go. That evidence is admissible to show that the mind or memory of a witness has become impaired or abnormal by reason of disease, I think is true and this in substance the plaintiff offered to show; but he went further, and by another question offered to show the "effect of the injury upon defendant's memory as to money and finances in particular." This was not in my judgment admissible. The impaired or abnormal condition of the mind being shown, the effect was for the jury to determine. (638) 2 Iowa.