McLean v. McDugald, 53 N.C. 383, 8 Jones 383 (1861)

June 1861 · Supreme Court of North Carolina

53 N.C. 383, 8 Jones 383

HUGH McLEAN v. NEILL McDUGALD, Adm'r.

It is no objection to the endorsement of a bond, that the presumption of payment from tlid lapso of time, was applicable to it, when the endorsement was made.

An assignment, without consideration, passes the title, and where such assignment was made to evade the law regulating the venues of actions, the objection, to be good, must bo taken by plea in abatement.

This was an action of debt, on a bond tried before Saunders, J., at the last Spring Term of Harnett Superior Court.

The pleas were non est factum, payment and no assignment.

The following case agreed, sets out the facts ■:

The note on which the action was brought, purported to have been executed by the defendant’s intestate more than ten years before the suit was brought. After ten years from the execution of the note elapsed, it was assigned by the payee therein by endorsement, and transmitted to the endorsee by the bands of a third person ; the endorsee then assigned the note to plaintiff by endorsement and delivery, and the suit was then commenced.

The plaintiff proved the execution of the note, and that it had not been paid. The assignment to the first endorsee was made without consideration, and in order to enable the plaintiff to sue in Harnett county, the defendant residing in Cumberland. It was agreed that if the foregoing facts amounted to a transfer to the plaintiff of the legal interest in the note;, there should be a judgment in favor of the plaintiff for $800s, of which sum $285 is principal. Otherwise, there should be judgment for the defendant. The Court gave judgment for the plaintiff, and the defendant appealed.

N. McKay, for the plaintiff.

Phillips, for the defendant.

Manly, J.

"We concur with his Honor below in his opinion upon the case agreed. The objection to the validity of the assignment-, seems to be two-fold: Pwst, because of the presumption of payment which attached to it, when assigned. Secondly, because of the purpose thereby to evade the operation of law as to jurisdiction. Neither ground is tenable.

1. The lapse of time is not a nullification of the bond, as cancellation would be, but is only presumptive evidence of payment. The statute of presumption is of no greater force or effect than a receipt upon the paper would be. In both cases, the fact-of payment being prima facie only, and questionable, an endorsee would take title subject to the enquirers of fact.

2. The endorsement being good to pass the title, and only invalid to give a fraudulent venue to the action, it will follow that the second ground of objection is to the legality of the venue. This must be taken advantage of by plea in abatement, Rev. Code, ch. 31, sec. 37. An endorsement without consideration is effective to pass title, simply. Upon the supposition that the purpose to evade the law regulating the venue of actions is unlawful, the endorsement would be invalid for such purpose, and the right of venue would, consequently, remain unchanged.

If the action had been brought in the county of Cumberland where the defendant resides, it might have been brought, we take it, in the name of the endorsee, and, if so, it is a test which shows that the principle of the ground is the illegality of the venue.

Per Curiam,

Judgment affirmed.