Marshall v. Daniels

| Superior Court of New Hampshire | Dec 15, 1846

Parker, C. J.

More than six years had elapsed from the time when this note became due before the commencement of this action. A recovery upon the note is therefore barred by the statute of limitations, unless the plaintiff can show such a recognition of it, as a debt, within six years next preceding the suit, as will be sufficient to take the case out of the operation of the statute.

Eor this purpose the plaintiff relied, in the first instance, upon an indorsement appearing upon the note, of the sum of §20, as received in payment within the six years. But that indorsement, standing alone, was not evidence that any payment was made at the time of its date. The note was in the possession of the plaintiff. The indorsement, it is inferred, wasv in his hand-writing. It does not appear to have been in that of the defendant, nor was any evidence introduced to connect the defendant with it. Whether the plaintiff made it or not is therefore immaterial.

There is under these circumstances no presumption that the indorsement was made at the time of its date, nor that the defendant made a payment at that time.

There was error, therefore, in the ruling, which was, in effect, that the indorsement was primá facie evidence of the payment by the defendant, and sufficient, in the absence of evidence to the contrary, to take the ease out of the statute; for unless it had that effect the plaintiff had shown no case, and the motion for a nonsuit was rightfully made.

This error in the ruling of the court is not corrected by the subsequent proceedings. Where a motion for a non-suit, for the want of evidence, is erroneously overruled, and the defendant, instead of relying upon his motion, proceeds with the case, and supplies the defect himself, or it is otherwise supplied beyond dispute, the ruling furnishes no ground for a new trial. But that is not this case. The ruling having made the indorsement presumptive evidence of a payment at the time of the date, the burden of proof was thereby thrown upon the defendant to rebut that presumption, and so the matter stood throughout the trial. The jury were authorized by the charge of the court to take the indorsement into consideration as evidence, along with the other evidence, and may have found their verdict upon the supposition that the indorsement was sufficient to entitle the plaintiff to recover, unless the proof on the part of the defendant showed that no such sum was paid at that time. There must, therefore, be a

New trial.