86 N.C. 36 | N.C. | 1882
This action commenced on the 12th December, 1877, in a court of a justice of the peace, and is brought by successive appeals to this court. The plaintiff declares upon a bond for two hundred dollars, executed to Horace Oden, by defendant's intestate (James S. Campbell), *48
and Samuel B. Latham, on the 10th day of October, 1854, and payable one day after date — which bond had been indorsed to plaintiff. Amongst other defences the plea of payment was relied upon, and to rebut a presumption thereof the plaintiff proved by the defendant, who qualified as the administrator of his intestate in September, 1859, that he had not paid the bond since that date. He also offered to prove by a witness that the other obligor (Latham) (37) had admitted to the witness, since the action begun, that he had never paid it, but upon objection this evidence was excluded. There being no other evidence, the court held that the presumption was not sufficiently rebutted, and thereupon the plaintiff submitted to a non-suit and appealed, assigning as error this ruling of the court, and the exclusion of the testimony as to the admission of the co-obligor Latham.
There can be no question, we think, as to the correctness of his Honor's ruling. Relying upon the decisions heretofore made in Buie v. Buie,
His Honor, therefore, properly assumed the duty of determining the question in this case, there being no conflict in the testimony bearing upon the point.
In the same case, relying upon the authority of Powell v. Brinkley,
This view of the law is clearly supported by the case ofMcKinder v. Littlejohn,
As said by Mr. Justice RODMAN in Woodhouse v. Simmons, supra, it is difficult to see how a ruling — going even that far — could be consistent with the true theory of a statutory presumption, having an artificial and technical weight. But be that as it may, it is manifest that without those additional circumstances — make-weights as it were — the court would have held that a break in the debtor's insolvency, extending only over so short a space of time as eighteen months, out of twenty years, would have defeated the plaintiff's effort (39) to get rid of the legal presumption.
In the present case, there is no pretence of any inability to pay the debt, on the part of the defendant's intestate, and nothing looking to its non-payment, by him, for the first five years after it matured. That his administrator, or co-obligor, had not paid it, afforded no room for an inference that he had not done so. Indeed, the fact that he had paid it may have been the very reason why they had not been required to do so.
If the joint obligors to an instrument are thus allowed to operate on one another, and because one has not paid to beget an inference of a like failure on the part of the other — and so vice versa — it would be impossible ever to raise the presumption, except in the case of a bond with a single obligor. Upon the ground if its inutility, it might be questioned whether under the circumstances of this case, direct proof of the non-payment by the joint obligor, Latham, would have been admissible — and very certainly hearsay evidence on that point was not competent. The declarations of one man are never *50
competent against another, if made without the sanction of an oath, and the opportunity for cross-examination. Murphy v. McNiel,
No error. Affirmed.
Cited: Grant v. Gooch,