Williams v. Alexander, 50 N.C. 162, 5 Jones 162 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 162, 5 Jones 162

HENRY B. WILLIAMS, Adm’r., v. ADAM ALEXANDER.

The endorsement, by an obligee, of a payment, within ten years from the time of a note’s falling due, is not evidence to rebut the presumption of payment, and the death of the obligee, shortly after making the entry, does not alter the case.

This was an action of debt, tried before Caldwell, J., at the Pall Term, 1856, of Mecklenburg Superior Court.

The suit was brought on a bond of the defendant and Charles T. Alexander, bearing date 1st day of January, 1842, payable to the plaintiff’s intestate, as guardian, twelve months after date. There was a payment of $50 endorsed on the 26th of February, 1845, and a further payment of $2,35, on the 29th of January, 1846, endorsed as being made by the said C. T. Alexander, which were both in the hand-writing of the plaintiff’s intestate, who died in November, 1846. There was no evidence of the financial condition of the obligors.

The Court charged the jury, that the endorsement of the credit of $2,35, Avas evidence to them, as it appeared to have been made at a time when it was against the interest of the obligee to make it, and if they believed the payment had been made on 29th of January, 1846, it repelled the presumption that the whole note was paid, which otherwise would have arisen from the lapse of more than ten years from the time of its falling due, till suit Avas brought, and that as to both the obligors. Defendant excepted.

Yerdict for the plaintiff. Judgment and appeal.

Boy den, for the plaintiff.

Wilson, for the defendant.

Battle, J.

No authority has been shown for the proposition that a person can, either by what he says or does, make evidence for himself, even though it may have been against his interest at the time when it was said or done. The general rule undoubtedly is, that a party cannot offer in evidence his own acts or declarations, unless they form part of something done, which it is competent for him to prove. In such case we have never heard an exception contended for, that the acts or declarations Avere against the interest of the party doing .or making them. If they are really against his interest, he will never offer them, and it is only when a change of circumstances, as in the present case, makes it his interest to offer them in evidence, that he will do so, and then, like all other interested testimony, they ought to be excluded. This is not like the case of a payment on a bond or note, established by other evidence than the proof of the obligee’s or payee’s hand-writing; nor like the case, where a person who has peculiar means of knowing a fact, makes a declaration or written entry of that fact, Avhich is against his interest at the time, and after his death, is evidence of the fact as between third persons. See Peck v. Gilmer, 4 Dev and Bat. Rep. 254, and the cases there cited. Here the written entry is offered as evidence, not in a suit between third persons, but in a suit in which the personal representative of the party who made it, is plaintiff. It is now to his interest to introduce it, and it ought to be rejected.

Pee Cueiam, The judgment must be reversed, and a new trial granted.