Rogers v. . Clements

Smith, C. J. The complaint alleges the execution of the bond set out therein by the defendants, and its endorsement to the plaintiff’s testatrix, and the action is to recover the residue remaining unpaid. No defence is made by the defendant "W. W. Clements, and the defendant A. K. Clements, in his answer, relies upon the statutory presumption raised by the lapse of time since the obligation became due, and in subsequent amendment sets up an alleged release from a portion and the larger number of those entitled to the estate of the testatrix, accompanied with an averment, that there were not, nor are there now, any unpaid debts or charges requiring the collection. There were no issues eliminated and submitted to the jury, as is expressly prescribed by The Code, sections 395 and 396, though in the record it is stated that “the jury find all the issues in favor of .the plaintiff,” or, as we must understand, all matters *85 In controversy arising upon the pleadings. We pause to say that this statutory requirement must be complied with, not alone because it is a legislative mandate, but because under the present .system it conduces to a clear and distinct apprehension of the ■disputed fact and the pertinency of the evidence which may be •offered. The controversy seems from the case stated to have been confined to the defence of presumed payment, and' evidence introduced in rebuttal, and that offered and rejected in support of the release as an abatement of the demand. The exception to the •denial of an instruction asked for the defendant, depends upon the competency of testimony the admission of which takes away the foi’ce of the exception. The plaintiff was allowed, after objection, to prove a declaration made by the other defendant in the absence of the appellant, .and after the presumption had been raised that he had not paid the debt. This declaration was admitted to show non-payment by that obligor, it being necessary to prove non-payment by both in order to remove the presumption as to each under the ruling in Campbell v. Brown, 86 N. C., 376, and antecedent cases referred to in the opinion. The testimony would seem to be superfluous in presence of the fiiet that the obligor W. W. Clements, in failing to answer, and ■exposing himself to a judgment by default, had, in the most ■effectual way, admitted his own continued liability, and the •declaration was not needed as an acknowledgment affecting him,-self. But it is received as evidence against the appellant, and to take from him the protection of the statute and defeat his defence. 'The effect given it is to charge the appellant, not. his co-obligor, whose liability is already definitely fixed by his failing to contest the allegations of the complaint. As the lapse of time raised a presumption of payment- made by some, not designating whom, of the debtors, the repelling evidence must extend to embrace all, .and to charge either it must- be shown that payment has been made by none. The separate acknowledgment of one debtor *86 that he has not paid the debt is insufficient to charge him even, unless it is also shown that none of the others had made payment In Campbell v. Brown, 86 N. C. 376, Ruffin J., in a well considered review of the cases, remarks that “ even if there should be evidence of an acknowledgment sufficient to repel the presumption of payment as to one of two makers of a bond, still if the presumption was not repelled as to the other, the case would come within the rule as to both and both would be protected by the statutory presumption.” While therefore, in order to establish the continuing obligaticur of the appellant and remove the presumption raised for his benefit, it was necessary to show that payment had not been made, as well by the non-contesting obligor, as by the former, the proof offered and received was not of the faot but of his declaration of the fact, made, too, after the presumption had arisen. The declarations as acknowledgments of the debtor making them are admissible to charge him, but are they competent to charge the appellant, uttered in his absence, where they would not if untrue be contradicted by him ? They are but hearsay — unsworn statements coming from one not a party to the issue. Upon principle and authority they are clearly inadmissible and their exclusion results from the necessity of disproving the assumed fact that the debt had been extinguished by some of the debtors, of which acknowledgments can only be received as evidence against him from Avhom they came and to affect his personal liability. This error renders a new trial necessary, but as the’ other-defence arising out of the alleged release may again come up, should its execution be proved, it is proper for us to suggest that, while it cannot defeat the action, if there are no reasons for the fund passing into the hands of the plaintiff, except at -.once to account for and pay over to those entitled under the will, the judgment- should not be enforced against the defendant as to> the shares embraced in the release, but only for the benefit of these who retain their shares. Upon payment of the latter a perpetual *87 eesscit exeoutio should be entered. This is the course pursued in Baker v. Railroad, 91 N. C. 308, and is appropriate to the present-action if the obstacle to a recovery should be put out of the way in another trial. There is error and this will be certified to the end that a venire de novo be awarded.