The Court is of opinion that the first of the exceptions taken by the defendant in this case is well founded. Rules of evidence, once settled, become rules of law, and cannot be departed from upon theoretic notions of propriety or the suggestions of expediency. Among these rules, the following, as we believe, are well settled in the country of our ancestors, and we are confident have been regarded as established in this State for the last half century: When the execution of an instrument, attested by one or more subscribing witnesses, is required to be proved, the party propounding it must call one at least of the subscribing witnesses to prove it, or show that proof, by means of an attesting witness, is not in his power. When this is shown, the next evidence in the order of proof is evidence of the handwriting of the subscribing witnesses, or one of them. But if this also be unattainable, then the party producing the instrument is allowed to give evidence of the handwriting of the party by whom it purports to be executed. 1 Starkie Ev., 320 to 330; Jones v. Brinkley,2 N.C. 20; Jones v. Blount, ib., 238.
(72) Whenever proof of an inferior grade is brought forward, it shall not be received until the court is satisfied that proof, superior in order, is not within the power of the party. Now, it is clearly impossible to lay down a precise rule of law as to what circumstances must be shown to convince the court that the party tendering inferior evidence has done his best to procure the superior evidence. If, therefore, in this case, the judge below had stated on the record, as a conclusion of fact, which he drew from the testimony submitted to him, that it was not in the power of the plaintiff to procure evidence of the handwriting of the attesting witness, or if the circumstances which he has caused to be there stated were such as would warrant a reasonable inference that this evidence was unattainable, we might well hesitate in reversing this judgment. But the case neither sets forth such a conclusion as having been drawn, nor will it authorize us to presume that it was in fact drawn by his Honor. The attesting witness, when alive, was the clerk of the county court of a large, populous, and wealthy county. He had been dead but twenty-five years before the trial. Not an effort was shown to have been made in the county of the witness's residence to procure proof of his handwriting. So far from there being room to presume that witnesses as to the character of his handwriting could not be had, a doubt could scarcely be entertained but that very many such witnesses were to be found, if reasonable exertions were but used to discover them.
The second exception, in the opinion of the Court, must be overruled. The presumption against a bond, raised from the lapse of twenty years, without a demand by the obligee or acknowledgment of the obligor, is, in one sense, a presumption of law. The law attributes to such lapse of time a technical operation; so that it is the duty of the court, if no opposing testimony be offered, to advise the jury to find the fact of payment. But the inference to be raised is an inference of fact, liable to be attacked, repelled, or confirmed by other testimony. And it is the duty of the triers of the fact, allowing to this technical presumption itsprima facie force, to find the fact as it may appear upon the proofs. Now, it seems to us that upon whatever ground this presumption rests, whether upon the probability of the fact of payment thence (73) arising, or on a principle of policy that would shield men from the oppression of claims long negligently forborne, testimony of the kind and to the effect which was offered in this case was pertinent and in point, tending directly to encounter the alleged probability, and to account for the seeming negligence, and therefore fit to be submitted to the jury, and proper to influence their finding. We have heretofore declared our concurrence in the opinion expressed by Lord Eldon in Flandongv. Winter, 19 Ves., Jr., 199, "that the presumption raised by
a forbearance for twenty years may be repelled by evidence that the debtor had not the means or opportunity of paying." Matthews v. Smith, 19 N.C. 287. Upon further reflection, we entertain the doctrine still; and also, that if such evidence does satisfy the jury that in truth payment has not been made, it is their duty so to find upon the fact in issue. Nor do we think the circumstance relied on by the defendant is sufficient to withdraw the present case from the operation of this doctrine. The interest in remainder which the defendant's intestate had in the negroes bequeathed by his uncle's will was, indeed, one which during the life of his uncle's widow might have been applied to the payment of the debt now in suit. But all supposition that it was so applied is repelled by the fact that all thenegroes, upon the death of the tenant for life, came to the possession of the defendant. And so, if it could be brought home to the creditor that he knew of this interest in remainder, an inference of negligence, in forbearing for so many years from any effort to subject it to his demand, might be raised against him; but, as the intestate himself forbore wholly, notwithstanding his necessities, from making any use of this interest, it might be that he was ignorant thereof, and still more probable that these creditors knew not of it. How this might be was a circumstance fit to be considered by the jury.
We are clearly of opinion that the third exception is unfounded. The delivery of the assets of the intestate, by the defendant, to the next of kin, before the expiration of two years from his qualification, and without taking refunding bonds, is not a legal administration of the assets against a creditor. Undoubtedly, there are some few — they (74) are very few — requisitions imposed by our acts of Assembly upon the executors and administrators of deceased persons which cannot be performed by, and are manifestly inapplicable to, those whose testators or intestates did not reside amongst us. By a legitimate construction of the acts so far, and so far only, as these requisitions are inpracticable and inapplicable, such executors and administrators are excused therefrom. But, with this exception, all who here take probate of wills, or obtain letters of administration of the estate of deceased persons, are bound to observe the laws here in force for the government of executors and administrators.
Upon the last exception we have felt much perplexity. After every effort, we find it impossible to reconcile to each other the decisions which have been made upon the act of 1715, 1 Rev. Stat., ch. 65, sec. 11. The difficulty of admitting any equitable exposition of the act without a violation of its language has at times caused a strict adherence to its terms. At other times, the shocking injustice resulting from a literal interpretation has obtained for it an equitable construction, almost in defiance of its words. Under these circumstances, we feel it our duty to
consider the latest adjudications as fixing the true principles of the act.Jones v. Brodie, 7 N.C. 594, and Godley v. Taylor, 14 N.C. 178, have established that the injunction on creditors to make claim within seven years after the death of the debtor, under the penalty of being utterly barred of any recovery against his estate, does not apply when there is no person in being authorized by law to make the claim, or where the claim itself is in a state not then to be prosecuted, and these decisions are avowedly made upon the ground that, until there be such a person to make claim, and such a claim as can be prosecuted, there is no cause of action; and the bar of the act of 1715 does not begin to run. Unless this ground be abandoned, it must also be held that unless there be a person against whom claim may rightfully be made, the bar of the statute does not attach. It is indispensable to the prosecution of a claim that there should be a person in being against whom it may of right be demanded, as that there should be a rightful claimant in existence (75) to bring it forward, or that the claim be of such a nature as that its performance may be demanded. The moment it is established that this act is in the nature of an act of limitation, the bar of which does not begin to run until there is a cause of action, that moment it follows that the want of a representative of the debtor, as well as of a representative of the creditor, takes the case out of the bar of the statute. Cause of action is the right to prosecute an action with effect; and, legally, a cause of action does not exist until there be a person in existence capable of suing, and also a person against whom the action may be brought. See Douglass v. Forrest, 4 Bing., 686; 15 E. C. L., 113; Murrayv. East India Co., 5 Barn. and Ald., 204; 7 E. C. L., 66; Webster v.Webster, 10 Ves., Jr., 93.
For errors assigned by the defendant in the first exception,
PER CURIAM. Venire de novo.
Cited: Wood v. Dean, post, 231; S. v. Holcombe, 24 N.C. 216; McKinderv. Littlejohn, 26 N.C. 202; Carrier v. Hampton, 33 N.C. 311; Warlick v.Barnett, 46 N.C. 541; Walker v. Wright, 47 N.C. 157; Pearsall v.Houston, 48 N.C. 347; Ballard v. Ballard, 75 N.C. 192; Rogers v. Grant,88 N.C. 443; Howell v. Ray, 92 N.C. 512; Angier v. Howard, 94 N.C. 29;Long v. Clegg, ib., 766; Daniel v. Grizzard, 117 N.C. 111; Bright v.Marcom, 121 N.C. 87; Copeland v. Collins, 122 N.C. 623, 627.
(76)