Quince's Administrators v. Administrator of Ross, 1 N.C. 155, 1 Tay. 155 (1801)

May 1801 · North Carolina Superior Court

1 N.C. 155, 1 Tay. 155

Quince’s Administrators versus the Administrator of Mary Ross.

DEBT upon a bond, to which the defendant pleaded “solvit ad diem," and relied upon the presumption of payment, from the length of time elapsed since the bond was given. Deducting the time, between the sixth of March 1773, and the first of June 1784, there were 26 years, to support the presumption.

A writ sued out against a person who was named executor, but renounced the office, is not evidence of a claim on a bond twenty years old.

In order to rebut this presumption, the plaintiff proved, that in 1796 he had instituted a suit against a person, as executor of Mrs. Ross, who pleaded that he never was executor, but had renounced the office; whereupon the suit was discontinued.

By

the Court.

Twenty years are considered sufficient to induce a presumption of the payment of a bond; where no interest has been paid, or demand made during that time; and how far, these circumstances have a tendency to weaken the presumption, is proper for the consideration of the jury, under the circumstances of each case.

With respect to the demand relied upon by the plaintiff, I do not think it is entitled to any weight, having been made of a person, wholly unconnected in the transaction; a fact which might have been ascertained by examining the records of the County Court. A writ sued out against the party really liable, though he should not be arrested upon it, if the transaction were bona fide, would go a great length in defeating the presumption; so would an imperfect writ, if the proper party were arrested upon it: but this is demanding from one man the debt of another.

Jocelyn for the Plaintiff.

Gaston for the Defendant.

Verdict for the Defendant.