Holly v. Freeman, 24 N.C. 218, 2 Ired. 218 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 218, 2 Ired. 218

JOSIAH HOLLY vs. ISAAC P. FREEMAN, ADM’OR &c.

The declaration of a defendant that she “ remembered giving the note, but believed she had paid it,” is no evidence to rebut the presumption of payment arising under our Act of Assembly from the lapse of ten years, and the Judge has a right so to inform the Jury.

This was an appeal from the judgment of (he Superior Court of Law oí Bertie county, at Spring Term, 1842, his Honor Judge Manly presiding. The case was an action of debt commenced by warrant before a justice of the peace, to which were pleaded the general issue and the statute declaring a presumption of payment of all contracts after the lapse of ten years from the time the right of action accrued, passed in 1826, (Rev. Stat. c. 65, s. 13.) It appeared that the note sued upon was due the 15th of September, 1826, and the action was brought the 18th of January, 1841. A witness was introduced, who proved that, a short time before the warrant was sued out, he, at the request of the plaintiff, spake .to the defendant’s testator about the note, when she declared that “she remembered giving the note, but said she believed she had paid it.” The testimony being here concluded on the part of the plaintiff, the presiding judge intimated ail opinion that there was no evidence to rebut the presumption of payment raised by the statute; whereupon, the plaintiff suffered a nonsuit, and appealed to the Suprema Court.

A. Moon and Iredell for the plaintiff.

No counsel for the defendant.

Daniel, J.

The statute declares that the presumption of payment shall arise in ten years after the right of action shall have accrued, under the same rules as theretofore existed at law in such cases. Rev. Stat. c. 65, s. 13. The Legislature has. therefore said, that forbearance for so long a time as ten years, unexplained, is a circumstance, from which the jury ought to infer that the debt has been satisfied. However, the presumption arising after such a lapse of time may be repelled by the defendant’s admission of the debt, or payment of interest within ten years; or the presumption may be answered by the proof of other circumstances, explaining satisfactorily why an earlier demand has not been made. More than fourteen years after this bond was due, the obli-gor was spoken to about it, when she said that she believed she had paid it. It seems to us that this evidence, so far from repelling the presumption of payment, which time had raised in her favor, rather went to strengthen that presumption. We think the judge was right in saying that it was no evidence to go to the jury to repel the presumption of payment, which the statute had raised.

Per CuRiam, Judgment below affirmed.