11 W. Va. 187 | W. Va. | 1877
delivered the opinion of the Court:
This is an action of debt, brought by N. S. White, administrator of Leonard Sadler, deceased, (plaintiff) against Mary A. Kennedy, administratrix of Andrew Kennedy, deceased, in the circuit court of Jefferson county. The action seems to have been commenced on the 23d of June 1868, and is brought to recover the sum of $1,052.85 with interest from the 17th day of December 1849, the amount of a single bill made by said Andrew Kennedy and Phillip P. Dandridge in the lifetime of the said Andrew Kennedy, dated the said 17th
$1,052.85.
Twelve months after date, we or either of us, bind ourselves, our heirs, &c., to pay to Leonard Sadler, his heirs, assigns, executors or administrators, one thousand and fifty-two dollars and eighty-frye cents ($1,052.85) for value received, with interest from date.
Witness our hands and seals this 17th day of December 1849.
Phillip Dandridge, [Seal.]
ANUREW KENNEDY, [Seal.]
And the endorsements thereon in these words and figures: “By cash on the within bond, $105.28, this 17th day of August 1851. Joseph M. Cromwell, for
And thereupon the defendant, with the view of strengthening the presumption of payment from lapse of time, as stated in the bill of exceptions, “introduced a witness to prove that since said bond became due on December 17, 1850, Andrew Kennedy, the obligor in the bond up to the time of his death, lived within a mile of Leonard Sadler in this county; that he had a large estate, his personalty alone being worth $20,000.00, and that he paid his debts always promptly; that no demand had been made for the payment of the money represented by said bond, till the institution of this suit; and other circumstances tending to raise or strengthen the presumption of payment from lapse of time.” But the court, on motion of the plaintiff’s counsel, excluded said testimony, ruling that such testimony was inadmissible.
I do not understand from the bill of exceptions, that the defendant introduced a witness, who stated upon oath the matters set forth in said bill of exceptions, and that the court excluded his evidence; but that the defendant introduced a witness, with the view or expectation of proving by him the facts stated in said bill of exceptions, and “ other circumstances ” tending to raise or strengthen the presumption of payment from lapse of time, without stating to the court, what these “ other circumstances ” were; and that the defendant objected to the introduction of the evidence. I do not understand from legal authority that a legal presumption of payment arises or is authorized in case of a bond by reason of mere lapse of time where the bond has not been due for at least twenty years before the commencement of the action in which its recovery is sought. A learned writer has said that presumptions are of two kinds, legal and artificial, and natural. “The former derive from the law a technical or artificial operation and effect, beyond their natural tendency to produce
If the defendant meant to introduce evidence, to prove other circumstances, tending “ to raise or strengthen the presumption of payment, from lapse of time, in connection with those specified, or offered to do so, those other circumstances should have been specified, and stated in the bill of exceptions, so that this Court could see what these circumstances were, and thereby be enabled to judge correctly, whether those other circumstances were relevant and in connection with the circumstances specified
The “ other circumstances, ” not specified in the bill of exceptions, not being stated, this Court is not authorized to declare that the court erred in rejecting them •, nor can this Court determine, that said other circumstances, not specified, were such as to have authorized the admission of evidence, proving or tending to prove the circumstances specified in the bill of exceptions.
For the foregoing reasons it seems to me, that this Court is not authorized, from anything disclosed by the record, to determine that the circuit court erred in its judgment, rendered in this cause upon the verdict of the jury, on the 3d day of November 1874. Said judgment must therefore be affirmed, and the defendant in error recover against the plaintiff in error, his costs and damages according to law, to be levied of the assets un-administered, which have, or may come into the hands of the plaintiff in error, to be administered, as administrator de bonis non of Andrew Kennedy, deceased.
Judgment Affirmed.