Doub v. Hauser, 29 N.C. 167, 7 Ired. 167 (1847)

June 1847 · Supreme Court of North Carolina

29 N.C. 167, 7 Ired. 167

JOSEPH DOUB vs. JOSEPH HAUSER, Adm'r.

Ill an action of debt upon a bond, where tho defendant has pleaded several pleas, and among' others the plea of non est factum, and the jury find all the pleas in favor of the defendant, this Court is concluded by that verdict and cannot inquire into the instructions of the Court below, as to the other pleas, whether those instructions were erroneous or not.

The cases of Morrisey v. Bunting, 1 Dev. 6, Bulloch v. Bulloch, 3 Dev.26(}, Martin v. Waugh, 2 Dev and Bat. 518, cited and approved.

Appeal from the Superior Court of Law of Stokes County, at the Spring Term, 1847, his Honor Judge Manly presiding.

This was an action of debt, brought in 1844, upon a bond for §668, due 3d June, 1826, purporting to be executed by Noah Ward, William J. Ward, Elijah Ward and Henry JJoub., Pleas: Non est factum, and the Statute of 1826, raising a presumption of payment upon, bonds after ten years from tbe day of payment. It was in proof, that in the year 1831, three of the obligors, to-wit: Wiley J. Ward, Elijah Ward and Henry Boub, had sent the bond to Tennessee, with a power of Attorney from them to collect the debt of Noah Ward, who it appeared, was the principal obligor.

And, in the further progress of the cause, the plaintiff' offered in evidence, upon the issue under the Statute, as* admissible and pertinent to repel the presumption created-thereby, an exemplification of a record from Tennessee of one of the Courts in that State, in a cause between» himself, the plaintiff in this cause, and Noah Ward wherefrom it would appear, that a recovery had been effected upon the bond now in suit, and in the year 1840» the sum. of $600 made upon ají?, fa. on the Judgment. ■

This evidence was objected to, and the Court, deeming it inadmissible, so ruled for which the plaintiff’ ex.-cepts. In obedience to instructions from the Court, the-Jury found a verdict for the defendant, and the plaintiff appealed from the-juclgment thereon..

No counsel for the plaintiff.'-

Morehead, for the defendant.

Nash, J.

ft was an action of debt on a bond. The-defendant pleaded, non est faetum, payment and set off,, accord and satisfaction, release, solvit ad diem, and solvit post diem,, the Act of 1826-7, presuming payment, &c. To rebut the presumption of payment, the plaintiff offered in evidence a judgment recovered in his name upon this bond against N-oah Ward, the principal obligor, but upon which there had been a partial payment only, made in the year 1840. The action against Ward was commenced in 1831. This testimony was rejected by the presiding Judge, and under his instructions the jury found a verdict for the defendant.

In the ease presented to us, it appears that the j.ury found all the issues in favor of the defendant,, and of «course passed upon their plea of ñon est factum. That finding puts an end to the case, for the jury have said it was not the deed of the .defendant. It is unnecessary to express any opinion, as to the correctness of the presiding judge in ruling out the testimony offered by the plaintiff. Ws are precluded from so doing, by several adjudications of this Court, Morrisey v. Bunting, 1 Dev. 6. Bulloch v. Bulloch, 3 Dev. 260. Martin v. Waugh, 2 Dev. and Bat. 518.

Pjbb Cuhiam. Judgment affirmed.