the plaintiff the proceeds, or so much thereof as will satisfy the execution." And the last clause of Section 5121 provides: "But no writ of exection shall be a lien on personal property before the actual levy thereof." It will be seen, therefore, that a levy must be made, and that until made no lien is acquired upon the property. Hence if, as claimed by counsel for the appellants, the assignment of the judgment by the sheriff constituted the levy, the assignment by the sheriff in this case appears to have been subsequent to the assignment by Germain to the plaintiff, and therefore plaintiff's assignment would prevail. But we are of opinion that, before the sheriff would be authorized to make the assignment of the judgment as provided in Section 5123, he must make a valid levy on the judgment. A valid levy being made, the sheriff would be authorized to sell the same, as provided in Section 5120, or appropriate or exchange it, as provided in Section 5123. The counsel for appellants have referred us to Potter v. Phillips, 44 Ia. 353, and Ochiltree v. Railroad Co., 49 Iowa, 150, in which it was held that judgments in that state are subject to levy and sale under execution. But in neither of those cases is the manner of the levy on a judgment under execution discussed, and hence they do not aid us in our present inquiry. Our conclusions are therefore that, under the provisions of our statute, a judgment may be levied on and sold under execution, but that in this case there was no valid levy, actual or constructive, and that the proceedings and assignment set up in defendants' second defense constituted no defense to plaintiff's action, and that for that reason the demurrer was properly sustained. It will be observed that we express no opinion in this case as to the proper manner of levying on a judgment under an execution under our statute, and we have purposely reserved that question for further consideration in a case that may properly require a decision of the question.

3. The conclusion to which we have arrived renders it unnecessary to express any opinion upon the question as to the mistake in the notice served by the sheriff, of the name of the judgment defendant, and date of the rendition of the judgment

in Germaine v. Manwell, as, the notice being held ineffectual for any purpose, the mistake becomes immaterial in this case.

4. Counsel for appellants further contend that, as they had denied fully the assignment alleged in the complaint, in the first defense set up in their answer, they were entitled to a trial upon that issue, and that the court erred in entering judg ment for plaintiff, and overruling the demurrer, without a trial. Respondent's counsel, in reply to this contention, insist that defendants had admitted the assignment in their second defense, and that there was therefore no issue upon that question to be tried. An examination of defeudants' second defense discloses the fact that defendants have admitted the assignment from Germain to the plaintiff of the judgment in controversy. This, then, presents the question of whether or not an admission in one defense is available to a plaintiff to sustain an allegation in his complaint fully denied in another defense pleaded in the same manner. In Wisconsin it is held that an explicit admission of a fact alleged in the complaint, in any defense, may be used by the plaintiff to sustain the allegations of the complaint, and that when a fact is so admitted the plaintiff is relieved from proving such fact on the trial. Dickson v. Cole, 34 Wis. 621; Farrell v. Hennesy, 21 Wis. 632; Hartwell v. Page, 14 Wis. 49. The same rule is held in New York. Paige v. Willet, 38 N. Y. 28. California courts, however, hold the reverse. Billings v. Drew, 52 Cal. 565; Amador Co. v. Butterfield, 51 Cal. 526; Buhne v. Corbett, 43 Cal. 264; Nudd v. Thompson, 34 Cal. 39. And Iowa holds with California. Quigley v. Merritt, 11 Iowa, 147; Barr v. Hack, 46 Iowa, 308. In Glen v. Sumner, 132 U. S. 152, 10 Sup. Ct. Rep. 41 Mr. Jus tice GRAY, speaking for the court in a case of admission in the pleadings, says: "Such statements, made for the purpose of presenting the issue to which they relate, are not evidence upon any other issue in the same record. As held by Chief Justice MARSHALL, sitting in the circuit court for the district of North Carolina, when the law authorizes a defendant to plead several pleas he may use each plea in his defense, and the admission unavoidably contained in one cannot be used against

In

him in another." This was said in a case from North Carolina, where the provisions of the Code are similar to our own, and where the circuit court of the United States is governed by the practice in the state courts in actions at law. The question was before the late territorial supreme court in two cases. Dole v. Burleigh, 1 Dak. 227, 46 N. W. Rep. 692, the court followed the rule as laid down in Wisconsin. Mr. Justice BARNES, delivering the opinion of the court, says: "Under the Code, a party may set up as many defenses as he chooses, but he cannot, by making repugnant allegations, compel the plaintiff, in order to avoid a denial in one part of the answer, prove a fact admitted in another;" and he cites Hartwell v. Page, supra. In Myrick v. Bill, 3 Dak. 284, 17 N. W. Rep. 268, Mr. Justice WILLIAM E. CHURCH, delivering the opinion of the court, says: "A defendant is not at liberty to raise an issue he has closed by admissions (and, a fortiori, by averments) in his answer, nor can one, who explicitly admits or avers by his pleading that which establishes plaintiff's right, be permitted to deny the existence of the fact so admitted or averred, or to prove any state of facts inconsistent therewith." Citing Paige v. Willet, 38 N. Y. 28. As the courts of other states, as we have seen, are divided upon this question, we think it our duty to follow the decisions of our own court in this case, without at this time suggesting any qualification of the rule so broadly laid down. But, in the proper case, it may be a serious question whether an exception should not be made, as suggested by Mr. Justice GRAY in Glenn v. Sumner, supra, as to an admission unavoidably made in order to enable a party to properly present a defense. In the case at bar it will be observed the admission is clearly and specifically made that the assignment was executed, acknowledged, delivered, and filed, giving the date of the acknowledgment and filing, and seems to have been made without any apparent necessity existing to enable the pleader to present his affirmative defense. It is quite clear from the whole answer, taken together, that the only issue intended to be raised was whether the assignment of the judgment and undertaking to plaintiff was legally valid, as against

the proceedings taken by defendant Jones to acquire the title to the same, and that defendants did not intend to deny the assignment to plaintiff as a fact. We are of the opinion, therefore, the court committed no error in rendering judgment upon the demurrer in favor of the plaintiff, and the judgment of the court below is affirmed. All the judges concurring.

STATE V. SEVERINE.

1. An attorney employed by a citizen or an organization of citizens, as provided in Section 20 of the prohibition act, cannot institute, upon his own information, a criminal proceeding by information against an alleged violator of that law.

2. Section 20 of the prohibition act does not, nor does any other section thereof, create a new office by the name of "assistant state's attorney," but merely says that an employment so made shall be the associate counsel of the state's attorney. Such employment was not intended to take the place of the state's attorney.

(Syllabus by the Court. Opinion filed October 20, 1891.) Error to Minnehaha county court. Judge.

Hon. E. PARLIMAN,

Information, by W. A. Wilkes acting or purporting to act as assistant state's attorney of Minnehaha county, charging the defendant with a violation of the law prohibititing the sale of intoxicating liquors. There was a trial and verdict of guilty returned. Defendant made a motion in arrest of judgment, which was overruled. Defendant brings error to this court. Reversed.

Joe Kirby and D. E. Powers, for plaintiff in error.

Robert Dollard Attorney General, and D. R. Bailey, for defendant in error.

BENNETT, J. Plaintiff in error was convicted in the county court of Minnehaha county of a violation of what is commonly known as the "Prohibition Law." After a verdict of guilty was returned by the jury, the plaintiff in error filed a motion in arrest of judgment, on the ground that no legal information had

The

been filed against him upon which his trial was based. motion was overruled, and from the order overruling it the case is brought to this court by writ of error. The main question raised by the motion in arrest of judgment is, can an attorney employed by a citizen or an organization of citizens, as provided in Section 20 of the prohibition act, institute a criminal proceeding by information against an alleged violator of that law? The information upon which the plaintiff in error was tried and convicted was filed and signed by one W. A. Wilkes as an assistant state's attorney It is conceded that he was an attorney residing in Minnehaha county, and was employed by a committee of citizens to assist the state's attorney in the prosecution of alleged violators of the prohibition law. So far as the record shows, the state's attorney of that county took no part in the institution or prosecution of the information; but it is contended that Section 20 of that enactment makes a a specific provision for some attorney to take the place of the state's attorney. That section provides that "any citi zen or organization may employ an attorney to assist the state's attorney to perform his duties under this act, and such attorney shall be recognized by the state's attorney and the court as associate counsel in the proceeding, and no procedure shall be dismissed, over the objection of such associate counsel, until the reason of the state's attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court." This section of the law is the only provision in it, or of any other of our statutes, that provides for any aid or assistance to the state's attorney in the proscution of any violators of the law. An analysis of it will show that there was no intention of the legislature to take from the state's attorney the burden of the prosecution of public offenses.

1. It says who may employ an attorney to assist the state's attorney in the performance of his duties under this particular law. Usually this employment, when found necessary, would be left to the state's attorney himself, or to the inherent power resting in the court. That no favor or bias may be shown the