Зображення сторінки
PDF
ePub

Lord Mansfield indeed seems to have carried the doctrine further than other Judges. In one case(a), he said that no positive time had been laid down by the courts whence to infer the payment of an old bond, but that it might be eighteen or nineteen years ; and on another occasion(6) he laid it down, that a jury might presume the debt to be discharged, where no interest is shown to have been paid for sixteen years. But the authority of these dicta cannot be relied upon. If they are to be understood in a literal and unqualified sense, the principle they furnish is not only unwarranted by any former determination or judicial assertion, but extended much beyond them. And so in fact the dicta in question have been considered by later judges,—the position that a less period than twenty years will constitute evidence of a discharge, being held to apply to those cases only where, in addition to want of demand, other circumstances are found leading to the same conclusion.(1) Thus in Oswald v. Legh(c), Mr. Justice Buller said, he had always been of opinion, that no less time than twenty years would of itself form a presumption that a bond had been paid ; and that in those cases where satisfaction had been presumed within a less period, some other evidence had [*]been given in favour of the presumption, such as having settled an account in the intermediate time, without any notice having been taken

(c) 1 T. R. 272.

(a) 1 T. R. 272. (6) Cowp. 109.

(1) Boltz v. Ballman, 1 Yeates, 584. Goldhawk v. Duane, 2 Wash. C. C. 323. Blake v. Quash, 3 M.Cord, 340.

of the demand(a). Then after citing a case(6) before Lord Raymond, -where, to an action of debt on a bond due seventeen years before, the defendant having pleaded payment at the day, and urged in defence that as he bad ever since the time fixed for payment of the bond possessed an estate in the plaintiff's neighbourhood, and had been constant and regular in all his payments, it should be presumed that the money was paid, the Lord Chief Justice said, he would never suffera plainti ff to be stripped of a just debt by such a presumption ;—the learned Judge added, that that case fortified an idea he had taken up in reference to the dicta of Lord Mansfield, that when the question of presumption of payment within a less time than twenty years had been left to a jury, it must have been so left upon some auxiliary evidence, though in such cases the slightest evidence was sufficient.

This opinion of Mr. Justice Buller, we may observe, was in a late case at N. P., where Lord Mansfield's dicta were cited and relied upon, confirmed in every particular by Lord Ellenborough(c).

[*]It has also been decided at Nisi Prius, that although the obligor has within twenty years acknowledg

(a) That the fact of the parties estate from the obligor since the having meantime accounted toge- date of the bond, fortified by eighther, without noticing the bond teen years' acquiescence, was held debt, will, together with the lapse to furnish a like inference. of sixteen or eighteen years' amount (1) Constable V. Somerset, to presumptive proof of payment, Hill. 1 Geo. 2, at Guildhall. See see Colsell v. Budd, i Camp. 27. 1 T. R. 271. See also Moyle v. Lord Roberts,

(c) Colsell v. Budd, i Camp. Nels. 9, where the circumstance 27. of the obligee having purchased an

ed the existence of the bond, yet if the inference arising from the laches of the obligee be confirmed by evidence which tends to establish the presumption of a release, that acknowledgment will not keep the bond on foot.(1)

An action was brought, in 1802, on a bond payable in September 1767; and to support the plea of a release which was put in by the defendant, evidence was adduced, that M. Foster (the obligee) having three daughters, to each of whom he said he intended to give a portion of 1,0001., advanced to the defendant, on his marriage with one of them, in 1764, a portion of 5001., and gave him an assurance that he should receive a further sum of like amount at his (Foster's) death ; that in 1767 the defendant borrowed of Foster 4001., for which he gave the bond in question; and that six years afterwards, on an application by the defendant for a further loan, Foster refused to make it, saying that the defendant had already had his share of the estate, and that he might do as he pleased with what he had, for he should never be called upon for it. Foster died in 1791. Under these circumstances it was insisted for the defendant, that although the idea of payment was excluded, the evidence was strong to presume a release by the obligee ; and Grose, J., in his direction to the jury, said, “ This bond was given by a son-in-law to his father-in-law : and it appears that he afterwards was told that payment would never be called for. He therefore had every reason to suppose that it was either cancelled, or otherwise legally discharged. [*]It

(1) Goldhawk v. Duane, 2 Wash. C. C. R. 323.

is clear by the production that it was not cancelled ; a release therefore might have been executed.” A verdict, accordingly, was found for the defendant(a).

But in general, an admission or acknowledgment by the obligor that the bond has not been satisfied, will deprive him of the benefit which he would otherwise have from the long forbearance of the obligee. This was admitted by the Master of the Rolls, in a suit in Chancery on the same bond as occasioned the proceedings at law in the case just stated(6); and in Toplis v. Baker(c), the point was expressly decided.

One of the plainest and most significant modes of acknowledgment that a bond remains undischarged is payment of interest. So that evidence of interest having been received at any time within twenty years before the commencement of an action on the bond will save the right of the obligee(d) (1). The presump

V.

(a) Washington Brymer, (2) Searle v. Lord Barrington, Peake on Evidence, 4 Ed. App. 2 Stra. 826 ; 2 Lord Raymond, 76. That a parol discharge, 1370 ; 3 Bro. P. C. by Toml. 593. however, will not in general be In this case, where it appeared effectual, where the demand is that there were indorsements on secured by deed, see Cupit v. the bond in the obligee's own Jackson, M.Clel. 495; Gilbert v. hand writing, acknowledging the Wetherell, Hemming v. Gurrey, receipt of interest on different oc2 Sim. and Stu. 254, 311, 320. casions, some within the period of (b) See 6 Ves. 519.

twenty years from the date of the (c) 2 Cox, 118. See also Cowp. bond, and others within the like 109.

space of time before the com

(1) Cottle v. Paine, 3 Day, 289. Admr. of Pitkın v. Exr. of Kent, 1 Root, 312. Rodman v. Hoops, 1 Dall. 85. Penrose v. King, 1 Yeates, 344. Matters' exrs. v. Bullman, 1 Yeates, 584. Jackson v. Hotchkiss, 6 Cow. 401. McDowell v. McCollough, 17 Serg. & Rawle, 51.

tion of [*]payment may also be resisted on the ground of the obligor’s poverty, and consequent inability to pay(a) ; or of his absence beyond sea, by which the obligor was prevented from pursuing his demand with effect(b) (1).

It likewise seems, that the long continued absence abroad of the creditor will prevent the application of the general rule. The obligor being thus precluded all opportunity of making the supposed payment, no

mencement of an action for the re- from the time when the bond was covery of the debt; it was held, forfeited, or within twenty years that thut evidence was sufficient from some other period when the to rebut the presumption of pay- debt is clearly proved to have exment, though nearly thirty years isted; in other words, such inhad elapsed since the execution of dorsements must have been made the bund. The reason given for before they would be thought neadmitting the indorsements as cessary to encounter a presumed evidence

was,

that it had been the satisfaction. (Turner v. Crisp, 2 general practice of the obligee to Sira. 827, cited; per Lord Hardindorse the payments of interest, wicke, 2 Ves. 43.), and at a time and this perhaps with the privity, when the effect of them was clearand certainly for the sake of the ly adverse to the writer's interest obligor, who was made more se- (Rose v. Bryant, 2 Camp. 321.) cure. by such indorsements than (a) Fladong v. Winter, 19 Ves. by taking loose receipts. But it 196; and Wynne v. Waring, should be observed, that in order there cited. See also 12 Ves. to make indorsements effectual to 266, and Cowp. 109. Sed vide rebut the presumption of payment, Willaume v. Gorges, 1 Camp. 217. some of them must appear to have (6) Newman v. Newman, 1 been made within twenty years Stark. N. P. Rep. 101.

(1) Vide Lynde v. Dennison, 3 Conn. R. 387. Brewton v. Cannon, 1 Bay, 482. Penrose et al. v. King, 1 Yeates, 344.

« НазадПродовжити »