8. The just subsistence which is required by the statute to affirmatively appear from the testimony or answer of the defendant, cannot be presumed under mere naked rules of evidence, nor inferred from the acts or silence of the defendant, but must be distinctly admit- ted by him. If his evidence merely fails to prove, in the estima- tion of the court or jury, the discharge of the cause of action, it is not sufficient. Id.
9. The burden is on the plaintiff to remove the bar of the statute; this he can do only by the defendant's testimony, or by his answer, and these the plaintiff is bound to accept as verities, as he can neither impeach the witness nor contradict his testimony by other evidence. Per DILLON, Ch. J., in same case.
10. While it is not denied that the court or jury may weigh the testi- mony of the defendant, as in other cases, it must, when weighed, make out a clear case against him with affirmative directness from his own evidence or admissions. A doubtful or mixed case for the plaintiff, will not avail to rescue his case from the operation of the statute. Id.
11. To entitle a plaintiff to prove by the testimony of the defendant, as a witness under said section 2742, that the cause of action still justly subsists, he need not do more than allege such just subsist- ence, without averring how he will show the fact. Per WRIGHT, J., dissenting, in same case.
12. While the plaintiff must make it appear affirmatively from his ad- versary's testimony, that the cause of action still justly subsists, in doing this he is not confined alone to what the defendant may say, but his manner on the witness stand, his failure to answer, or his contradictory, inconsistent or unreasonable statements may be legiti- mately considered, and may have as much weight in determining the ultimate issue as positive words or his direct admissions of a still subsisting liability. Id.
13. If the matters disclosed show that the defendant should not be ex- cused, or if they would not in an equitable or legal forum constitute a defense, but for the limitation, neither should they under the statute. Id.
1. FAILURE TO ENTER SATISFACTION. Under section 3670 of the Revis- ion, the penalty therein prescribed for a failure to enter satisfaction on the margin of the record, when the mortgage is paid, is incur- red if the mortgagee shall fail to enter satisfaction within six months after being requested so to do; and a subsequent entry of satisfaction, even if made before suit brought, will not avoid a recovery of the penalty by the mortgagor. Deeter v. Crossley, 180. 2. SATISFACTION MUST BE EXPRESS. The purpose of said section is answered only by an express satisfaction, and this requirement is not met by the mere recording of a subsequent deed, from the mortgagor to the mortgagee, of the premises mortgaged, contain- ing no allusion to the mortgage. A conveyance by the mortgagor to the mortgagee, does not necessarily operate as a satisfaction of the mortgage. Id.
3. CONTRIBUTION. Where a mortgage or deed of trust covers real estate which has been sold in parcels to different persons, all of the lands thus covered and sold are liable to contribute ratably to the discharge of the incumbrance. Griffith, Admr., v. Lovell et al., 226.
4. But a purchaser of one portion cannot have the mortgage debt made out of the balance to the extent of a payment claimed to have been made by him upon the note secured by the mortgage, when it appears, that such payment was no part of the purchase money, and that it was made a considerable time before his purchase. Id. 5. FORECLOSURE FOR INSTALLMENTS: INTEREST AND TAXES. The right to foreclose and sell for the principal sum secured by a mort- gage, on account of the non-payment of interest or accruing taxes, exists and may be exercised when, by the terms of the mortgage, it is stipulated, that in case of such non-payment the mortgagee may proceed to sell the premises, pay the debt from the proceed- ings arising from such sale, rendering the surplus, if any, to the mortgagor. Pope et al. v. Durant et al., 233.
6. SALE UNDER A POWER. In a proceeding to set aside and have declared void a sale of real estate made by the mortgagee under a power of sale contained in the mortgage, and which was to be exercised in case of the breach of certain conditions, it will not be presumed, in the absence of either averment or proof, that the con- tingency upon which the right to sell was to arise, had not occurred. Id.
7. ASSUMPTION OF BY PURCHASER. If it be stipulated in a conveyance or bill of sale of property that the purchaser assumes the payment of a mortgage existing thereon, he thereby renders himself liable therefor; but if the stipulation is that he merely takes the property subject to the mortgage, this liability is not incurred. Hull & Co. v. Alexander, 569.
See CONTRACT, 8.
FIXTURES.
JUDGMENT, 2.
SUSPENSION OF: WHAT ARE DEBTS AGAINST. Under section 50 of the act entitled "An act to provide a national currency, etc," the assets in the hands of the receiver of a bank that fails are, when reduced to money, to be ratably divided and appropriated to the payment of all legal liabilities of the association, whether such liabilities are debts, technically so called, or result from the non-feasance or malfeasance of the association in respect of its binding obligations and duties as from its failure while in possession of some bonds left by an individual with it on special deposit or for safe keeping. Turner v. The First National Bank of Keokuk et al., 562.
1. CONFLICTING EVIDENCE. Where there is a conflict of evidence and the jury have fairly considered the case, a new trial will not be granted. Garland v. Wholeham, 185.
2. EVIDENCE NOT UNDER OATH. The fact that a witness who gave mate- rial testimony in behalf of the party calling him, was not sworn, does not entitle the adverse party as a matter of right to a new trial, when it is not shown but that he or his attorney knew of the omission before the verdict was returned. Riley v. Monohan, 507. 3. An affidavit in such case by the attorney that he did not ascertain that the witness was not sworn until after the jury had retired to consider their verdict, but containing no statement that it did not
become known to him before the jury returned their verdict, is insufficient to justify the ordering of a new trial. Id.
4. REVIEW OF ACTION OF COURT BELOW: DISCRETION. Whether the party applying therefor was entitled to a new trial under such showing, is purely a matter of law and not of discretion, and the action of the District Court therein will be reviewed with the same freedom and upon the like principles as its ruling upon any other question of law. Id.
5. CONFLICTING EVIDENCE. A new trial will not be granted where the evidence is conflicting and within the peculiar province of the jury to pass upon. Hull & Co. v. Alexander, 570.
WHEN NOT ALLOWABLE. A party cannot, as a matter of right, take a nonsuit after the cause has been finally submitted. Mansfield v. Wilkerson, 482.
1. LIS PENDENS. The pendency of an action affecting real estate, is sufficient to charge third persons with notice thereof. Sowden & Co. v. Craig, 156.
2. CONFLICTING ENTRIES OF PUBLIC LAND. In cases arising under conflicting entries of government lands, the doctrine of notice does not apply. The Heirs of Klein v. Argenbright, 493.
See FIXTURES. JUDGMENT LIEN.
1. OBSTRUCTION OF HIGHWAY: INJUNCTION. A public nuisance, con- sisting in the obstruction of a public highway, may not only be abated and the offender punished under an indictment against him therefor, but equity will also redress the grievance by way of injunction upon the application of an individual who suffers an injury distinct from the public, as a consequence of the wrongful act. Excell v. Greenwood, 377.
2. RIGHT OF ACTION. Any person whose property is injuriously affected or whose personal enjoyment is lessened, by the erection of a nuisance, may, under our statute, maintain an action for the abate- ment of the nuisance and the recovery of special damages. Id.
ORIGINAL NOTICE. See JURISDICTION, 2.
1. HUSBAND AND WIFE. Section 2771 of the Revision changes the common law rule, that, in an action wherein the husband and wife were joined, for an injury to the wife, the recovery was limited to damages for that injury alone, and did not embrace the injury to the husband; and under said section the husband, in such an action, may join thereto a claim in his own right, and recover for the loss of services of the wife, occasioned by the injury. McDonald v. The Chicago & N. W. R. R. Co., 124.
2. ATTORNEY WHO RECEIVES PER CENT OF RECOVERY. An attorney, who, by an agreement with his client, is to receive a portion of whatever amount shall be recovered, is not a necessary party plaintiff, and need not be joined as such. Id.
3. PARTNERSHIP: JOINT MAKERS. Where one of the partners of a firm which was a joint maker of a note died, and the note was filed as a claim against the deceased partner's estate, allowed and paid by his administrator, it was held, in an action against an individual co-maker of the note, for contribution, that the action was properly commenced in the name of the administrator rather than in that of the surviving partner. Hosmer, Admr., v. Burke, 353.
4. DEMURRER. Where there is a non-joinder of parties, the defendant may demur, but where there is a misjoinder of parties defendants, he cannot demur. The remedy is by motion to strike out those improperly joined. Turner v. The First National Bank of Keokuk et al., 562.
5. BANKS. In a proceeding for the adjudication of a claim against a national bank that has suspended, arising from its failure to deliver to the person entitled, special deposits made by him with it, the receiver appointed under the national banking act, may be properly joined as a party defendant. Id.
1. DISSOLUTION: INDEBTEDNESS OF PARTNER TO FIRM. Articles of copartnership provided "that each partner should be allowed to draw from the concern not exceeding eighteen hundred dollars per annum for their personal expenses, and that their personal accounts should stand due to the concern in the same manner as any other account due by a party unconnected with the business." The partnership was subsequently dissolved, one partner purchasing, as stipulated in the written agreement of dissolution, "all the right and interest of the other partner in the stock, cash, notes, book accounts, assets, and every thing connected with the business," for the sum of $7,250, a part of which was paid down, and notes exe- cuted for the balance. Held, in an action upon these notes, that an account of the firm against the partner selling out was canceled and extinguished in the agreement of dissolution and purchase, and could not be pleaded as a set-off against the notes. Murdock v. Mehlhop et al., 213.
2. JOINT MAKERS. Where a firm and an individual are joint makers of a promissory note, the firm is to be considered as one person, and it and the individual co-maker are each liable for one-half the debt as between themselves. Hosmer, Admr., v. Burke, 353.
3. CONTRIBUTION. And if in such case one of the members of the firm, or his administrator, pays the amount of the debt, he may sue the individual co-maker for contribution, and recover one-half the amount thus paid. Id.
4. LIEN OF PARTNERSHIP CREDITORS. Partnership creditors have no lien upon the partnership property. While the partnership prop- erty is primarily liable to the partnership debts, this preference of the creditors can only be worked out through the partners, and if the partners make an absolute sale of the property they thereby cut off all lien of partnership creditors. Hawk Eye Woolen Mills v. Conklin, 422.
BY NOTE. The acceptance of a promissory note for the amount of an account, will not operate as a satisfaction of the account unless so received. McLaren v. Hall et al., 297.
1. IMPEACHMENT OF. A patent for lands issued by the United States, cannot be avoided or impeached, even for fraud, in a collateral proceeding. The proper course is by a direct proceeding to set aside the patent. The Heirs of Klein v. Argenbright, 493.
2. EFFECT OF PATENT: INTERVENING ENTRIES. When a patent is issued on a prior certificate, it takes relation back to the date thereof, and operates as from that time, vesting the title in the patentee and cutting off all intermediate certificates. Id.
3. CANCELLATION BY COMMISSIONER. It seems that the commissioner of the general land office has no power to cancel the location of a land warrant when once made. But, if he has, he possesses equal power to afterward rescind the order of cancellation, and thus restore all the rights of the original locator. Id.
1. CONFESSION AND AVOIDANCE. If the plaintiff, in a case where, under the statute, no replication is allowable, files, under section 2917 of the Revision, a written admission of matters alleged in the defend- ant's answer, such writing may, and the better practice would dic- tate that it should, also contain an averment or notice that the plaintiff relies upon and expects to show on the trial matter in avoidance of the allegations thus admitted. Viele v. The Germania Ins. Co., 9.
2. CERTIORARI: ANSWER TO AMENDED PETITION. Where there is an answer to the original petition in a certiorari proceeding, an answer to an amended petition which is but a repetition of the same mat- ter contained in the original one, will not be held necessary. Brown v. Ellis, 85.
3. DEMURRER: WAIVER. An error in overruling a demurrer to a peti- tion is waived by the defendants pleading over. McLaren v. Hall et al., 297.
4. JOINDER OF CAUSES. Under section 2844 of the Revision, a cause of action arising from tort, may be joined with one arising on con- tract, if they are between the same parties, in the same right, and have the same venue. Turner v. The First National Bank of Keokuk, 562.
5. PAYMENT: JUSTICE OF THE PEACE. Where a contract is without objection admitted in evidence for the purpose of proving payment, it cannot be insisted for the first time in the Supreme Court that the contract was inadmissible for that purpose because the pay- ment attempted to be proved was not pleaded, and that, therefore, the party claiming it was not legally prejudiced by an erroneous construction of such contract disallowing the payment. Especially would this be so in an action originating before a justice of the peace where pleadings are most liberally construed. Emerick v. Clemens, 332.
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