Baird v. . Reynolds

Davis, J., (after stating the case). 1. The first question presented is: Wasdhere error in leaving it to the jury to say whether there was a seal or not? In Yarborough v. Monday, 3 Dev., 420, there were two signatures to a contract and one seal, and the question was, whether both parties adopted one and the same seal. It was said: “ Whether the scroll affixed was in this State a seal, certainly was a question of law, to be determined by the Court, but whether the defendant placed it there, or adopted it as his seal, if placed there by the plaintiff or any other person, were questions for the jury.” The same was held in Pickens v. Rymer, 90 N. C., 282. If there was a scroll, the Court should have determined whether it was a'seal or not; but whether there was a scroll or seal on the paper, was a question of fact, and in the worn and mutilated condition of the paper that could not easily be determined by inspection, and there was some evidence in relation to it, and the fair construction of his Honor’s charge, when he told the jury, “You must ascertain whether there is a seal,” is, you must ascertain the fact whether there was a scroll or seal attached to the name; and in this view we think there was no error. 2. Whether the testimony of Weaver as to the declaration of Reynolds was of much or little weight, it went to the jury for what it was worth, and without objection, and presents no question for our review. 3. Should the time between the death of the defendant’s *473 intestate and the appointment of the defendant as his administrator, be excluded in computing the time in which the statute of presumptions was running? ' The question has been several times before this Court. It was presented and discussed in Tucker v. Baker, 94 N. C., 162, but not decided, as the case was disposed of on another ground, but it was directly before the Court at the. same term in Long v. Clegg, 94 N. C., 763. It was there held by the Court, after a very full and deliberate consideration, that the time during which there was no administration, must be excluded in the computation of the time. We content ourselves with referring to that case and the authorities there cited, as setting the question at rest in this State. 4. Should the time between the death of the plaintiff’s intestate and the appointment of his administrators be excluded? In Hall v. Gibbs, 87 N. C., 4,the Court said, that the death of the plaintiff’s intestate would not obstruct the running of the statute, and this we also take to be settled in this State. In explaining what, at first view, seems to be a want of harmony between Hall v. Gibbs, and Long v. Clegg, the Chief Justice said: “ The same remissness in not suing out letters of administration by those entitled to the personal estate, may stand as rebutting evidence upon somewhat.the same ground as the remissness of the creditor in not asserting his demand by action, and lienee the explanatory inference is drawn, that the debt has been discharged. But the case is different where the debtor remains the whole time accessible to process, and none is sued out to enforce his liability. The distinction in the cases may be maintained upon the principle that there can be no forbearance, the admitted foundation of the presumption, when there is no one to forbear.” The time between the 20th of May, 1861, and January 1st, 1870, is not to be counted, and the time during which *474 there was no administration on the estate of defendant’s intestate is not to be counted. There was evidence tending to show that he died on the 21st of January, 1878, and that administration on his estate was taken out on the 2d of April, 1878, and this action was commenced on the 5th of January, 1880. There was error in charging the jury, that if there was a seal, “upon the testimony, the presumption of payment has arisen.” The plaintiff is entitled to a new trial. Error.