Opinion
Spring Term, 1801.
A writ sued out against a person who was named as executor but renounced the office, is not evidence to rebut the presumption of the payment of a bond twenty years old.
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 6th of March, 1773, and the 1st of June, 1784, there were twenty-six years to support the presumption.
Jocelyn for the plaintiff.
Gaston for the defendant.
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 an executor, but had renounced the office; whereupon the suit was discontinued.
Twenty years are considered sufficient to induce a presumption of the payment of a bond, where no interest has been paid, or demand 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.
Verdict for the defendant.
NOTE. — See same case as reported in 3 N.C. 180, and the note thereto.
(186)
NEW BERN DISTRICT, July Term, 1801.