¶1— The question to be determined is one of fact, and we think appellants have failed to establish by a preponderance of the evidence the essential proposition upon which the defense is based. There is but little evidence in the record, except that of the defendant Kiser and the plaintiff. There are also some letters from one to the other. The evidence of Kiser tends, it can possibly be said, to show that the mortgage was given in settlement of differences on a gambling contract. That of the plaintiff tends to show otherwise. We have carefully examined the evidence, and have scrutinized it closely, for the purpose of determining the rights of the parties ; and our conclusion is that defendants have failed to establish that the mortgage was given in settlement of differences that arose out of a gambling contract. It would serve no good purpose to set out the evidence, nor is it necessary to discuss it. In fact, this could not be done without setting it out at some length. The defendants insist that the burden is on the plaintiff to establish that the mortgage was given in settlement of some valid transaction. Thus broadly stated, the proposition cannot be sustained; but there are cases which hold that, where *459suspicion has been cast on the transactions between the parties, then the burden is on the plaintiff to show that the property bought or sold was to be actually delivered. Barnard v. Blackhaus, 52 Wis. 593. Conceding this to be the rule, we are unable to say, upon the whole evidence, that the plaintiff is not entitled to the relief granted by the district court.
¶2The issues were settled in March, 1887, and the case was set down for hearing on depositions. The hearing was had on the second day of November, 1887. On the morning of that day the defendant filed a motion for an order requiring the plaintiff to produce his books of account from April, 1883, to September of the same year, for the purpose of being inspected and copied. This motion was overruled. It is insisted that the court erred in so ruling, and, in support of this position,1’ sections 3685 and 36S6 of the Codeare cited. The statute, in terms, places this matter within the discretion of the court, and we are unable to see that such discretion has been abused. It appears from the record that the plaintiff resides and does business in Chicago. The court may have, as in Allison v. Vaughan, 40 Iowa, 121, refused the rule because of the delay in asking for it. The cited case and this are singularly alike.
¶3Aeeirmed.