Opinion by

This was an action brought in the Jones county district court, at the September term, 1841, by the defendant in error, on a promissory note drawn by the plaintiff.

The defendant below filed his plea of abatement on the 28th of September, for misnomer; and simultaneously therewith his throe special pleas, and the plea of the general issue.

No issue was taken on the plea of abatement. Issue was joined on the first and second pleas, and also on the plea of the general issue; and to the third special plea the plaintiff below demurred, and the plaintiff in error brings this case to this court, and assigns the following errors:

I. The court erred in overruling the plea in abatement.

II. The court below should have sustained the plea in abatement.

III. The court erred in sustaining the demurrer of plaintiff below, to defendant’s third plea.

IY. The court should have overruled the plaintiff’s demurrer to defendant’s third plea.

*169The first and second errors are in substance the same ; as well as the third and fourth.

The record in this case is-very defective, and appears to be composed in part of the original papers, and in part of what appears to be a transcript from the record.

It does not appear of record what disposition was made of the plea in abatement; whether the plea was overruled, rejected, or abandoned.

Errors must affirmatively appear on the record, or they cannot be noticed by this court.

It does not appear that the plea in abatement was verified by affidavit of the truth thereof, as is required by the statute relative to pleas in abatement; and this being a plea in abatement for misnomer, it Ayas necessary that the same should be so verified, or that the affidavit should be waived. True, it appears at the foot of the plea, that the pleader had inserted the words, “ oath waived;” but it does not appear that the defendants or their attorneys waived the oath.

The statute above referred to is as follows, viz.: “ That no plea in abatement, other than a plea of the jurisdiction of the court, or where the truth of such plea appears of record, shall be admitted or received,” &c. Rev. Stat., p. 47, § 1.

Inasmuch as the court had no action on the plea, and the plaintiff below did not respond to the same, and issue Avas joined on other picas, and the cause submitted to the court by consent of parties, avo presume the plea in abatement Aras not received, or was waived and abandoned, which disposes of the first tAVO errors assigned. ✓

As to the third and fourth, it appears that the defendant below set out in his said third special plea, “ that said supposed promissory note was made and executed by said defendant to said plaintiff, fora certain toAvn lot, in the tOAvn of Newport, in the county of Jones, and state of IoAva, viz.: Lot four, in block one; and then, to wit, at the date of said note the seat of justice for said county; and for no other consideration. That the only value of said town lot consisted in Newport remaining the seat of justice of said county, Avithont wbichitwas valueless.

*170That afterwards, by an act of the general assembly of the state of Iowa, entitled an act to “ provide for the location of the county seat in the county of Jones, and approved the third February, 1817, the legal voters of said county, by a vote in accordance with the said provisions of said act, removed said seat of justice from said town of Newport to the town of Lexington, in said county; at which latter place the seat of justice for said county is located;” and thereupon claims that the consideration of the said note has wholly failed. To this plea the plaintiffs below filed their general demurrer, which was sustained by the court; and the question is, did the court err in sustaining said demurrer'? We think not. The existence and truth of the facts stated in said plea, are not inconsistent with good faith and fair dealing on the part of the defendant in error, in selling said lot to the plaintiff in error.

The defendants are not to be holden responsible for the subsequent act of the general assembly, nor for the votes of the people in removing the seat of justice. The right to remove seats of justice is an attribute of the law-making power; and no individual or individuals ought to be held responsible for the evils accruing from the exercise of such right.

Ho who purchases a town lot at a county seat, (whatever may have been his opinion of the length of time that such town should remain the scat of justice,) purchases subject to all the future contingencies of removal.

It is not averred in this plea that the defendant made false representations, or hold out false inducements to plaintiff in error, in making the sale of said lot; but it is only averred that they sold the said lot, it then being in a town which was the seat of justice, and that afterwards another power and other persons, for whose acts the county is not responsible, caused the seat of justice to be re-located.

As to the issues joined between the parties, on the first and second special pleas, and on the plea of the general issue, it does not appear that a jury was called ; but, from a favorable construction of the record, we must infer that a jury was waived, and inasmuch as the plaintiff did not assign for error the fact *171that no jury was called to try said issues, and from the following language in the record, viz.: u And this day came the parties in this cause by their attorneys ; an issue is made to the court, on law and fact, by consent of parties.” We infer that a jury was waived, and that the issues of fact were tried by the court, as well as the issues at law.

Judgment affirmed.