Williams v. . Alexander , 51 N.C. 137 ( 1858 )

The declaration was on the bond of the defendant, due on the 1st of January, 1843. The writ was issued on the 15th day of June, 1855. The execution of the specialty was admitted; it was also admitted that the endorsements of credits, on the bond, were in the hand-writing of T. L. Hutchison, the obligee, and that he died on the 4th of November, 1846; one of these endorsements was a receipt for fifty dollars, from Adam Alexander, the present defendant, dated the 26th of February, 1845, and the other was a receipt for $2,35, from C. T. Alexander, a co-obligor in the bond, dated the 29th of January, 1846. And the only question was, whether the latter endorsement was evidence to go to the jury, to rebut the pre sumption of payment arising from the lapse of time.

By the consent of parties, a verdict was entered for the plaintiff, with leave to set it aside and enter a nonsuit, if upon consideration of the point of law reserved, the Court should be of opinion with the defendant.

Afterwards the Court being of opinion with the defendant, ordered a nonsuit, from which judgment the plaintiff appealed. When this case was before us at December Term, 1857, (see 5 Jones' Rep. 162,) it was submitted without any argument on the part of the plaintiff. Had our attention been called at that time to the authorities which the learning and industry of his counsel have now been able to produce, our decision would have been then, as it is now, in his favor.

The general rule of evidence undoubtedly is, as we, on the former occasion, stated it to be, that a party cannot offer, as testimony in his own favor, his acts or declarations, unless they form part of something done, which it is competent for him to prove. We then thought that it was no exception to the rule, that the acts or declarations were done, or made at a time when they were against the interest of the party doing or making them. In this, we find that we were mistaken, and we are glad that we are able to avail ourselves of this early opportunity for correcting the mistake. An instance of this exception, to which we allude is, that the endorsement by the obligee of a bond, or the payee of a note, of the payment of interest or part of the principal of a bond or note, made at a time when it was against his interest to make it, may be used as evidence by him to rebut the presumption of payment, or repel the bar of the statute of limitations, arising from the lapse of time. The doctrine on this subject is traced, by all elementary writers, to the case of Searle v. LordBarrington, which is to be found reported in 2 Stra. 826; 8 Mod. Rep. 278; 2 Ld. Raym. 1370, and 3 Bro. Par. Cas. 593. It was an action on a bond, and the defendant pleaded solvit ad diem, and relied on the presumption arising from the lapse of twenty-eight years from the date of the bond, in support of his plea. To repel this presumption, the plaintiff offered in evidence two endorsements of the payment of interest on the bond, one of which was within twenty years, and this evidence, after argument, was held to be admissible. The case is said to have undergone much discussion, and the judgment, in it, was finally affirmed in the House of Lords. This case has been oftentimes referred to in subsequent cases, and the principle, deducible from it, has been approved or doubted, according to the view which the Judges who alluded to it took of the facts, (which are somewhat differently stated by the different reporters,) upon which it is supposed to have been decided. See Stark. on Ev. 306, and note 3, to that page. An able review of it may be found in the opinion delivered for the Court, by SPENCER, C. J., in Roseboom v. Billington, 17 John. Rep. 184. His conclusion, upon a full consideration of the subject, discussed in that and other similar cases, expresses what we conceive to be both the general rule and the exception to it. "An endorsement, therefore, on a bond or note, made by the obligee or promisee, without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party making such endorsement, unless it be shown that it was made at a time when its operation would be against the interest of the party making it. If such proof be given, it would be good evidence for the consideration of the jury," that is, to repel the presumption of payment arising from lapse of time, or to remove the bar of the statute of limitations. In the case before us, such evidence was given. The obligee died several years before the presumption had arisen, and the entry of the payment on the back of the bond was found to be in this hand-writing. It must, of necessity, then, have been made when it was against his interest, and at a time when we cannot imagine a motive for making a false entry. It is the ordinary course of business for obligees to make such endorsements, and as they furnish evidence against the obligees at the time when they are made, they ought to be admitted as evidence for them when it becomes necessary, and when it appears, from other evidence, that it is morally certain that they speak the truth, both as to the fact of the payment, and the date when it was made.

His Honor was right in ordering the nonsuit, in the Court below, upon the authority of the decision in this Court, but as we think that we erred in making that decision, we now feel it our duty to correct it, by directing the judgment of nonsuit to be reversed, and ordering judgment to be entered for the plaintiff upon the verdict, according to the agreement of the parties.

PER CURIAM, Judgment reversed, and judgment for the plaintiff.