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Huey v. Huey.

ents” to plaintiff, either by her father, by her husband (the watch), by their friends, or were owned by her in her own right, at the time of her marriage. Others again, were set apart to her as “privileged property,” by the appraisers of the estate. The estate is abundantly able to pay all debts, indeed we understand that the creditors are all satisfied. Plaintiff has not attempted to conceal the property, nor has defendant at any time, demanded the same.

Under these facts, the court did not err in refusing to hold the widow liable for the money value of any of these items. It is difficult to see how she would be liable in any event. But conceding this, it is sufficient to hold that she is not upon the facts here disclosed.

Affirmed. VOL. XXVI. - 67

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DES MOINES, JUNE TERM, A. D. 1869.

IN THE TWENTY-THIRD YEAR OF THE STATE.

PRESENT:
Hon. JOHN F. DILLON, CHIEF JUSTICE.

CHESTER C. COLE,
GEORGE G. WRIGHT, JUDGES.
JOSEPH M. BECK.

HOWELLS V. PATTON, et al.

I. Per CURIAM.

1. Limitation, statute of: EVIDENCE OF DEFENDANT: PLEADING. Whether

the plaintiff, in an action where the defendant pleads the statute of limitations, will be permitted under section 2742 of the Revision, to show by the testimony of defendant, that the cause of action still justly subsists, unless it is averred by plaintiff, in his petition, that he will thus show it on the trial, left undecided.

Howells v. Patton.

2

INDEBTEDNESS OF DEFENDANT NUST AFFIRMATIVELY APPEAR. In order to remove the bar of the statute of limitations, under said section 2742, it must affirmatively appear from the testimony or answer of the defendant, that the cause of action still justly subsists

mere

II. Per Beck, J., COLE, J., concurring. 3. Under section 2742 of the Revision, which provides that the

limitation of the statute shall not apply, if from the answer of the defendant, or from his testimony as a witness, it appears affirmatively that the cause of action still justly subsists,

egal subsistence is not sufficient; it must be a subsistence in harmony with justice and equity, and not merely supported by technical rules of

law. 4. The just subsistence which is required by the statute to affirm

atively 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 admitted by him. If his evidence merely fails to prove, in the estimation of the court or jury, the discharge of the cause of action, it is not gufficient.

III. Per Dillon, Ch. J. 5. — The burden is on the plaintiff to remove the bar of the stat

ute; 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. 6. While it is not denied that the court or jury may weigh the

testimony of the defendant, as in other, cases it must, when weighed, make out a case against him with affirmative directness. A doubtful or mixed case for the plaintiff, will not avail to rescue his case from the operation of the statute.

IV. Per WRIGHT, J., dissenting. 7. 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 subsistence,

without averring hore he will show the fact. 8. — While plaintiff must make it appear affirmatively from his

adversary's testimony, that the cause of action still justly subsists, in doing this he is not confined alone to what defendant may say,

Howells v. Patton.

but his manner on the witness stand, his failure to answer, or his contradictory, inconsistent or unreasonable statements may be legitimately considered, and may have as much weight in determining the ultimate issue as positive words or his direct admissions of a still subsisting liability.

If the matters disclosed show that defendant should not be excused, or if they would not in an equitable or legal forum constitute a defense, but for the limitation, neither should they under the statute.

9.

Appeal from Jasper District Court.

THURSDAY, APRIL 7.

ACTION by ordinary proceedings upon two bills of exchange for $1,500 each, drawn by one Hooper upon Howells, Patton & Co., and by them accepted August 6, 1854, and afterward indorsed by the drawer to plaintiff, and also upon a promissory note executed by said firm July 1, 1854, to plaintiff, for $356. The said firm of Howells, Patton & Co., consisted of Israel F. Howells, the defendants Andrew Patton and Moses H. Keever; Howells died before the commencement of this suit. The original petition made only Patton defendant, as surviving partner, but, by an amended petition, Keever was also made a defendant, and the two were joined as surviving partners. The amended petition avers that Keever has never resided in the State, and that Patton has not resided within the State for and during ten years since the cause of action accrued ; that for the space of twentytwo months said Patton, being a resident of the State, was in the actual military service of the. United States, and that, excluding the time he was so in the military service of the United States, he has not resided for and during ten years in this State since the said cause of action accrued. The petition also avers, that “the cause of action aforesaid still justly subsists against both of said defendants.” To this amended petition defendant Patton

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