The court is of opinion that the first or 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 winesses to prove it, or shew that proof, by means of an attesting witness, is not in his power. When this is shewn, the next evidence in the order of proof, is evidence of the handwriting of the subscribing witnesses, or of 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 Stark, on Evid. 320 to 330.
Jones
v.
Brinkley,
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 its prima 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 arising — or on a principle of policy that would shield men *73 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 tobe submitted to the jury, and proper to influence their finding. We have heretofore declared our concurrence in the opinion expressed by Lord Eldon, in Fladong vs. Winter, 19 Ves. Jun. 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 vs. Smith, 2 Dev. & Bat. Rep. 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 the negroes, 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 are very *74 few — requisitions imposed by pur acts of Assembly, upon the ani^ administrators of deceased persons, whichcannot be performed by, and are manifestly inapplicable to, ^ose whose testators or intestates did not reside amongst us. By-a legitimate construction of the acts, so tar, and so fin- only, as these requisitions are impracticable 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 estates 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 171-5. (1 Rev. Stat. ch. 65, sec. 11.) The difficülty 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
vs.
Brodie,
For the error assigned by the defendant, in the first exception, the judgment must be reversed and a venire de novo awarded.
Per Curiam. Judgment reversed.