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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
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
See ADVERSE POSSESSION.
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 &
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 tho 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 mortgages
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
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.
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.
See PARTIES, 5.
1. CONFLICTING EVIDENCE. Where there is a conflict of evidence and
the jury have fairly considered the case, a new trial will not bo
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.
See JUDGMENT, 4
WHEN NOT ALLOWABLE. A party cannot, as a matter of right, take a
nonsuit after the cause has been finally submitted. Mansfield v.
See INTERROGATORIES, 1.
1. LIS PENDENS. The pendency of an action affecting real estate, is
sufficient to charge third persons with notice thereof. Sorden &
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.
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. Eroell 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.
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.
See PARTIES, 3.
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. T'he 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
5. PAYMENT: JUSTICE OF THE PEACE. Whero 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.