Acknowledgment and new Promise.

is not liable generally; 3. That the husband, as head of the family, determines primarily what is needed for the family; 4. That the husband's note took the case out of the statute, as well to the wife as to himself. Lawrence v. Sinna. mon, 24 Iowa, 80.

barred by the statute of limitations, at a future time and by a different mode of payment, does not amount to a new contract, and as such enforceable under our statute. Price v. Price, 34 Iowa, 404.

121. Agreement to extend. Nor will a parol agreement, not based on any new or additional consideration, to extend the time of payment of a debt not already barred, take the case out of the statute. Ibid.

122. Promise may be established by letter. The new promise or acknowledgment required by Revision, section 2751 (Code of 1873, § 2539), to take a case out of the statute of limitations, may be established by letters written and signed by the debtor. Day v. Baldwin, 34 Iowa, 380. And when such letter is not addres

114. Indorsements of payment. The mere indorsement of payments on a promissory note within the statutory period, not shown to have been for actual payments by the maker will not avoid the bar of the statute of limitations, Miller v. Dawson & Conger, 26 Iowa, 186. 115. - under the statute. Whether indorsements of actual payments made before the claim is barred, are in themselves sufficient, under our statute, to keep alive the claim, quere. Ibid. 116. Effect of part payments and indorse-sed to the creditor by name, but by some other ments. Under our statute of limitations (Rev., designation, as Dear cousin," it may be shown § 2751,* subdivision 4), the acknowledgment by oral testimony that the creditor was the per arising from part payment, and indorsement son intended. Ibid. thereof, on a promissory note is not sufficient to 124. So, also, parol testimony is compeprevent the bar of the statute. It seems that the tent to establish the contents of a letter in anadmission or new promise required by the stat-swer to which the one in question was written, ute must, in all cases, be in writing, signed by if it be shown that such letter has been lost or the party to be charged. Parsons v. Carey, 28 destroyed. Ibid. Iowa, 431.

117. The difference between our own and

123.

125. -A letter claimed to have been written by the debtor, but to which there is no signature, the English statute, 9 Geo. IV, c. 14, pointed is not admissible to establish a new promise or

out. Ibid.

118. The fact that such part payment constituted an admission, from which a new promise

acknowledgment. The new promise or acknowledgment must be signed by the person sought to be charged thereby. Ibid.

would have been implied under the law as it 126. But a letter properly signed, and stood at the time, does not prevent the applica-written by the debtor to the creditor or his repre

tion of the present statute, nor render such application violative of the constitutional provision against laws impairing the obligation of contracts. The statute operates upon the remedy. Ibid.

119. The case of Parsons v. Carey, 28 Iowa, 431, holding that partial payments and indorsements thereof on a promissory note are insufficient to prevent the bar of our statute of limitations, either as to those made prior or subsequent to the statute, followed and approved. Harrencourt, admr. v. Merritt & Bro., 29 Iowa, 71; Roberts v. Hammon, Ibid. 128.

120. Promise to pay at future time and by a different mode. A parol promise to pay a debt

See note at commencement of title wherein sections of the statute referred to in this subdivision will be found.

sentative, is not inadmissible on the ground that it does not identify or refer to the note on which the suit is brought. The question as to whether the indebtedness acknowledged is identical with that upon which the action is based, is a question of fact for the jury. Ibid., and Penley v. Waterhouse, 3 Ibid. 418

127. So the question as to whether a certain letter does, when considered with the other facts of the case, admit the debt to be that of the writer, is also for the jury to deter

mine. Pid.

128. — surety. That the person making the new promise or admission was only surety on the note, and that the principal is discharged by the statute, is no defense to an action against such surety. Ibid.

Testimony of Defendant - Presumption of Payment - Disabilities and Exceptions.

130. Debt must still subsist. To make a defendant liable from his testimony, under section 2742 of the Revision of 1860, on a debt barred by the statute of limitations, it must affirmatively appear that the cause of action still subsists. A statement by him that he was discharged under a State bankrupt law, that some dividends, probably about forty per cent, were paid creditors, and that the note was otherwise wholly unpaid, is not sufficient to charge him. Webster & Gage v. Rees, 23 Iowa, 269.

131. To take a case out of the statute of

limitations by the defendant's testimony, it must therefrom affirmatively appear that the cause of action still justly subsists, regardless of the conclusiveness of other testimony. Robey & Robey v. Knowlton, 23 Iowa, 544.

exists; and the cause of action must be not only technically sustainable, but in harmony with justice, equity and good conscience. Howells v. Patton, 26 Iowa, 531.

135.

where evidence was held suffi

cient. Where, in an action upon promissory notes, in which the statute of limitations was pleaded, it appeared, from the testimony of the defendant, who was called as a witness by the plaintiff under section 2742 of the Revision, that he executed the notes for property bid off by that his brother received the property, and, in a him for his brother at an administrator's sale; day or two after the sale, also signed the notes; that, before the notes were due, the brother went

to California, and had never since returned; that the notes were not paid when he went away; that he himself had never paid the notes, and that he did not know whether they were paid or not, it was held, that, from this testimony, the debt evidenced by the notes still justly subsisted against the defendant within the meaning of the statute. McNitt v. Helm, 29 Iowa, 302. PRESUMPTION OF PAYMENT.

VII.

136. lapse of time. A statute of limitations constitutes a presumption of payment from 132. A judgment cannot, under said section, lapse of time; it is merely a statute of repose, properly be rendered against the defendant in forming no part or consideration of a contract, an action wherein the statute of limitation is and as a party can and should preserve evidenpleaded, on his own testimony, given as a wit-ces of payment, its repeal can work no grievness, called by the opposite party, unless it ance. affirmatively appears there from that the debt still justly subsists. Stewart v. McMillan, 34 Iowa, 455; Porter v. McKenzie, 20 Ibid. 362: Webster & Gage v. Rees, 23 Ibid. 269.

133. indebtedness must have had legalinception. Mere admission of the defendant of the execution of the note and its non-payment, will not take the case out of the statute, unless it also appears affirmatively, from the defendant's testimony, that his indebtedness thereon had a valid, legal inception. Robey & Robey v. Knowlton, 23 Iowa, 544.

134. must be in harmony with justice and equity. To remove the bar of the statute the onus is upon the plaintiff to make it affirmatively appear that the cause of action still justly

Norris v. Slaughter, 1 G. Gr. 338.

137. The lapse of time under a statute of limitations does not extinguish the debt, but does bar the remedy. The bar of the remedy may be waived like any other privilege, right or defense which he may have under the law. Penley v. Waterhouse, 3 Iowa, 418.

VIII. DISABILITIES AND EXCEPTIONS. 138. Does not run against the State. The statute of limitations does not run against the State. The County of Des Moines, for the use of, etc. v. Harker et al., 34 Iowa, 84. 139.

Section 2750 of the Revision, which provides that the limitations provided for shall be applicable to all actions brought by or against all bodies corporate and politic, except when otherwise expressly declared, does not change * Section 2742, Rev. 1860, provided that in actions founded upon contract the above limitations shall the rule. The words "bodies corporate and not apply if from the answer of the defendant politic" are held not to include the State. Ibid. or from his testimony as a witness it appears affirmatively that the cause of action still justly subsists. It was repealed by the session laws of 1872, chap. 167, page 213.

Vol. 2. - 90

140.

But if it were doubtful whether the State was intended to be included in the

Disabilities and Exceptions

words used, the doubt should be solved in favor of the State. Ibid.

141.

An action brought in the name of a county for the use of, and to recover money be longing to, the school fund, is, in effect, an action by the State, and hence is not barred by the lapse of the statutory period applicable to other action. lbid.

142. As to the statute not running against the State, see, also, The City of Pella v. Scholte, 24 Iowa, 283.

143. Insane persons. The statute of limitations makes no exceptions in favor of insane persons. Shorick, guardian, v. Bruce, 21 Iowa, 305. 144. Soldiers. Section 4, chapter 11, laws of extra session, ninth general assembly, providing that the statute of limitations shall cease to run

in favor of any soldier and his surety during the time their property is exempt from attachment or execution, by virtue of the provisions of said act, does not apply to plaintiff's in the military service, but only to defendants engaged in such service. Hublert v. Hopkins, adm'r, 33 Iowa, 122.

The plea of the Statute.

150. In action founded on judgment before a justice. The fourth section of the statute of limitations of 1843 cannot be pleaded in bar to an action founded upon a judgment rendered before a justice of the peace in this State. Danemuller v. Burton, 4 G. Gr. 445.

151. Demurrer. When, upon the case stated in the bill, the complainant, by reason of lapse of time, or laches on his part, is not entitled to the relief prayed within the statute of limitations, the defendant may demur upon that ground. Pierson v. David et al., 1 Iowa, 23.

where in an action of right the defendant pleaded: First. An adverse possession in himself, and those under whom he claimed, for ten years prior to the commencement of the suit; and, Second. That the plaintiff had not brought his action within ten years from the time when his right of action accrued, a demurrer was sustained erroneously. Kilbourne v. Lockman, 8 Iowa, 380.

IX. THE PLEA OF THE STATUTE. 154. Where, in an action of right to recover 145. Act of 1843. The statute of limitations a town lot which formed a portion of the lands of 1843, containing no saving clause, but unconknown as the Half-breed Tract," the defendditionally repealing the prior limitation law, cannot be pleaded in bar to an action of assump-uine half breed, who was entitled, as such, to an ant pleaded that he held under one J. A., a gensit until six years after it took effect. It did not operate restrospectively on contracts. Norris v. Slaughter, 1 G. Gr. 338.

146. The statute of limitations approved February 15, 1843, cannot be pleaded in bar to any action of debt within six years after the act took effect. Gordon v. Mounts, 2 G. Gr. 243; Hinch et al. v. Weatherford, Ibid. 244.

147. Said statute cannot be pleaded in bar, following Norris v. Slaughter, 1 G. Gr. 338; Forsyth v. Ripley, 2 Ibid. 181; Wile and Fear v. Matherson, Ibid. 184.

148. Foreign judgment. The statute of limitations cannot be pleaded to an action of debt on a judgment from another State. Latourivette v. Cook, 3 G. Gr. 593.

interest in said lands, but whose right and claim was not adjudicated in the partition suit decided demurrer was sustained; held, that the plea did in 1841, nor at any other time, to which plea a not show where the defendant derived his title, nor why the interest of J. A. was not adjudicated, and was insufficient. Ibid.

155. cannot be assigned as ground of demurrer at law. Prior to the Revision of 1860, the statute of limitations could not be assigned as a ground of demurrer at law. It must be pleaded, so that the other party may The County v. Bigham, admr., et al.,

answer it.

10 Iowa, 39.*

156. pleadings. When a petition which,

(See Revised Statutes of 1843, page 384, sec- upon its face, showed that the cause of action was tion 4.)

149. When statute has been repealed it should be pleaded. When the action has been barred by a statute of limitation which has been repealed the statute should be specifically pleaded. Forsyth & Co. v. Ripley, 2 G. Gr. 181.

barred by the statute of limitations, contained the additional allegation, “that the cause of ac

*The rule in The County of Wapello v. Bigham, admr., 10 Iowa, 39, was changed by section 2961. Revision 1860, to wit: "When a pleading shows affirmatively, that its cause of action is barred by the statute of limitations, it may be assailed by demurrer." See, also, Moulton v. Walsh, 30 Iowa, 361, post.

LIMITED PARTNERSHIP-MALICIOUS PROSECUTION. 715

Malice.

tion still subsists, and did justly subsist at the time of the commencement of this suit, as the plaintiff can and will make appear by the defendant's testimony on the trial of this suit;" it was held, that such additional allegation was not demurrable and sufficient to take the cause out of the statute. Newfield v. Blawn, 16 Iowa, 297. 157. It is sufficient for the pleader to set forth his cause of action, and aver that it still justly

subsists. Ibid.

158. To render a pleading demurrable on the ground that its cause of action is barred by the

LUNATICS.

See INSANE PERSONS.

MALICE.

1. Pleading. If a defendant is liable for neg. ligent or careless acts, a recovery may be had against him upon a petition charging the acts to

have been willfully and maliciously done, without proof of malice. The allegations of malice and willfulness will, in such case, be treated as

statute of limitations, it must affirmatively ap- surplusage. McCord v. High, 24 Iowa, 337.

pear therefrom that its cause is so barred. Moulton v. Walsh, 30 Iowa, 361.

2.

may be inferred. Malice may be infer

3. In an action of damages for shooting a horse the law infers malice from the killing, and an instruction that the jury must find such killing to have been willful and malicious was properly refused. Tucker v. McClure, 17 Iowa, 583. As to malice respecting crimes, see CRIMINAL LAW. See, also, next title, MALICIOUS PROSECU

159. Where, in an action to foreclose a mort-red from the acts of a party; and where such gage given to secure a promissory note executed acts are designed to injure the plaintiff, the jury in another State, the defendant in pleading the are bound to infer malice. Ibid. statute of limitations (Revision, section 2746, as amended by chapter 167, section 10, Laws of 1870), in his answer averred that by the laws of the State of New York, where he previously resided, a right of action on the note became barred, but no averment was made that by the laws of such State an action to foreclose the mortgage was barred; it was held, that the answer was demurrable, as not stating facts constituting a sufficient defense. The right to rely on the defense pleaded must be affirmatively shown by the answer. Gillett v. Hill et al., 32 Iowa, 219.

160. Non-residence of defendant. The time during which a defendant is a non-resident of the State is not included in computing our statutory periods of limitation. Ibid., and Petchell v. Hopkins, 19 Ibid. 531.

See ADVERSE POSSESSION; CRIMINAL LAW; EXECUTOR AND ADMINISTRATOR; MUNICIPAL CORPORATIONS; PLEADINGS.

LIMITED PARTNERSHIP.

See PARTNERSHIP.

LIS PENDENS.

See NOTICE.

LOST NOTES, DEEDS, ETC.

See BILLS, NOTES AND CHECKS; EQUITY;
EVIDENCE.

TION.

MALICIOUS PROSECUTION.

I. MALICE.

II. PROBABLE CAUSE.

I. MALICE.

1. What must be shown. Malice, want of probable cause and damage to the person (as by imprisonment), in reputation or in property (as by expenses incurred), must be shown, to sustain an action for malicious prosecution. Center v. Spring, 2 Iowa, 393; Ritchey v. Davis, 11 Ibid. 124.

2. To sustain an action for damages for malicious prosecution, the plaintiff must show affirmatively, both malice and the want of proba ble cause. Ritchey v. Davis, 11 Iowa, 124.

3. inference of malice. Where in an action to revover damages for malicious prosecution the defendant, on presenting his instructions, requested the court to give them without modification, but the court did modify the fourth, and the defendant excepted thereto. This instruction as asked was as given below, without

the words within brackets, and as given, it in- 11. The want of probable cause cannot be included the words embraced in the brackets: ferred from express malice, but malice may be "From the want of probable cause in the pros-applied from want of probable cause. Ibid., and ecution, the jury are not bound to [but they Davis v. Cook, 3 G. Gr. 539. may] imply malice; and if they are not satisfied that the prosecution was instituted and carried on through malice [express or implied], they will find for the defendant, it was held, that the modification was not erroneous. Paukett v. Livermore, 5 Iowa, 277.

4. Malice may be either express or implied, and whilst the jury are not bound to infer malice, from want of probable cause, yet they are at liberty to do so-they may do so-in their discretion or judgment, guided by the evidence, and under the sacred responsibilities of their oath and their position. Ibid.

5. Malice may be, but is not necessarily inferred from want of probable cause. Ibid.

6. In an action for malicious prosecution the

12. Good faith of party. Where a party lays all the facts before counsel, before beginning proceedings and acts in good faith upon the opinion given by such counsel, he is not liable in an action for malicious prosecution, though the opinion is erroneous or unwarranted. Ibid. 13 question for jury. The good faith of a party in instituting a prosecution is a question of fact for the jury. Ibid.

14.

If, however, he misrepresents the acts to such counsel, if he does not act in good faith under the advice received, if he does not himself believe that there is cause for the prosecution or action, or if counsel and client act in bad faith originating and urging the prose cution, he will not be protected. Ibid.

15. Evidence: of prior discharge: ground of

jury may infer malice from want of probable not material. In an action for malicious prose. cause, but they are not bound to make this in-cution it is competent for plaintiff to show that ference. And if malice is deduced from want of he was discharged by the court before whom probable cause, it is as much malice in fact within the meaning of the law, as though shown or deduced from any other fact or facts. Smith v. Howard, 28 Iowa, 51.

7. In an action for malicious prosecution, the plaintiff must show that the prosecution originated in the malice of the prosecutor, and with out probable cause. To prove express malice even is not sufficient, unless the want of probable cause is also shown. Davis v. Cook, 3 G.

Gr. 539.

8. The onus probandi of showing want of probable cause does not devolve upon the defendant, but that fact must be shown, prima facie, by the plaintiff before he can recover. Ibid.

II. PROBABLE CAUSE.

9. Probable cause consists in reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief, that the person accused is guilty of the offense with which he is charged. Center v. Spring, 2 Iowa, 393.

10. The question of probable cause is a mixed one of law and fact. The sufficiency of circumstances to constitute probable cause is a question of law for the court; the existence of the circumstances is a question to be determined by the jury. Ibid.

the prosecution was conducted. This established it becomes immaterial what ground the court based its action upon. Paukett v. Livermore, 5 Iowa, 277.

16. The sufficiency of evidence offered to sustain an action for malicious prosecution considered and discussed. Ritchey v. Davis, 11 Iowa, 124.

17. The finding of a magistrate and the recognizance of the defendant to appear and answer to a charge preferred is in law sufficient evidence of probable cause for the commencement of the proceedings in which such finding and recognizance was made. Ibid.

18. Ignoring indictment. The ignoring of an indictment of a defendant held to answer for threats to do great bodily injury cannot be considered in evidence as tending to show an absence of probable cause for the prosecution. Ibid.

19. Defective information no defense. A person who maliciously and without probable cause prosecutes another upon a criminal charge, cannot avoid his liability, by showing that the indictment or information was insufficient or defective either in substance or form, as that the complaint upon which the plaintiff was arrested did not in law charge a criminal offense. Brown, 28 Iowa, 37.

Shaul v.