Gwyn v. Porter

Nelso'N, J., delivered the opinion of the Court. This action of debt was brought by defendant in error in the Circuit Court of Fayette county, on the 4th June, 1868, upon two notes executed by M. H. Sims, who is not sued, and the plaintiffs in error, to B. H. Porter, agent, etc., each bearing date 30th December, 1848, and due 25th December, 1849; the one for $90, and the other for $91. The only question presented for our consideration is, whether his Honor the Circuit Judge instructed the jury correctly upon the question of presumption of payment arising from the lapse of time. He stated in his charge, “that in considering the time, sixteen years, required by law as necessary to create the presumption of payment, the jury were not to take into consideration or computation the time intervening between the 6th of May, 1861, and 1st of January, 1867, but that the same must be excluded.” The time thus excluded from computation is the same as that excluded by the act of 30th May, 1865, c. 10, ss. 1, 2, [255] p. 27, in regard to tbe statute of limitations. In Carter v. Wolfe, 1 Heis., 701, this Court said, “that the full period of sixteen years did not elapse in that case before the commencement of the late civil war, and that perhaps the time excluded from computation by the amended constitution as to the statute of limitations, should by analogy be excluded in ascertaining the presumption of payment/’ The question being now presented for direct determination, we hold that his Honor’s charge was correct, both upon principle and the authority of Penrose v. King, 1 Yeates, 344. See also Bailey v. Jackson, 16 J. R., 210; Jackson v. Pierce, 10 J. R., 414; Brenton v. Cannoes’ Ex’rs, 1 Bay., 482; Quince v. Ross, 1 Hay., 180, and 1 Taylor, 155; 1 Cow. Hill & Edw. Phill. on Ev., 5th Am. Ed., 566. It is shown by the proof in this case, that no Court was held in Fayette county from February, 1862, to October, 1865; and, independently of the act of 1865, we hold that when proof is made as to the suspension of the Courts in which suits should be brought, the time during which the Courts were not open, in the late civil war, should be excluded froin computation, as well in determining whether the presumption of payment has attached, as in fixing the bar of the statute of limitations. Affirm the judgment.