23 Iowa 269 | Iowa | 1867
Our attention is called to three supposed matters of error in the proceedings below.
As the statute thus introduced purported to have been published under the authority of the State, the court did not err in admitting these as presumptive evidence of such laws. See Nev. § 4063.
The evidence shows that the defendant continued to reside at Lowell, Massachusetts, more than six years after the maturity of the note, as did also the payee, who, during that time, held the note. The 'objection,
“If the jury find from the evidence given by the defendant, as a witness on the stand, that the indebtedness still justly subsists, then you will find for the plaintiffs.”
This instruction was intended to be based upon the provision of section 2742 of the Eevision, which declares that “ in actions founded on contract, the above limitations 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.
“Now, whether effect i^to be given to this section, even in a case made under it, when the defendant has clearly brought himself within the provision of section 2746, showing that the action had been fully barred by the statute laws of another State, we need not now decide, for the reason that there is another sufficient answer to the error complained of, namely, that there was no evidence given by the defendant on the stand that would justify the giving of such an- instruction. "What the defendant testified to in regard to a subsisting indebtedness was this, “ that he did execute the note; that he afterward executed an assignment to a commissioner in bankruptcy in Massachusetts, and obtained a discharge; that some dividend was paid creditors, but did not know how much, thought some forty per cent or-more; did not know as plaintiff claimed as creditor under same; note was otherwise wholly unpaid.”
These facts were elicited in evidence by the plaintiffs themselves, and so far from showing that the note sued on
In the- absence, therefore, of any testimony whatever, showing a subsisting indebtedness, it follows that the court did right in withholding from the jury the instruction referred to.
The judgment will be
Affirmed.