A writ sued out against a person who was named as executor but renounced the office, is not evidence to rebut the presumption of the payment of a bond twenty years old.
In order to rebut this presumption, the plaintiff proved that in 1796 he had instituted a suit against a person, as executor of Mrs. Ross, who pleaded that he never was an executor, but had renounced the office; whereupon the suit was discontinued.
By the Court.
Twenty years are considered sufficient to induce a presumption of the payment of a bond, where no interest has been paid, or demand during that time, and how far these circumstances have a tendency to weaken the presumption, is proper for the consideration of the jury, under the circumstances of each case.
With respect to the demand relied upon by the plaintiff, I do not think it is entitled to any weight, having been made of a person wholly unconnected in the transaction, a fact which might have been ascertained by examining the records of the county court. A writ sued out against the party really liable, though he should not be arrested upon it, if the transaction were bona fide, would go a great length in defeating the presumption; so would an imperfect writ, if the proper party were arrested upon it; but this is demanding from one man the debt of another.
Verdict for the defendant.
NOTE. — See same case as reported in 3 N.C. 180, and the note thereto.
(186)
NEW BERN DISTRICT, July Term, 1801.