Eby v. Eby's Assignee

• Decision Date: 07 December 1846
• Parties: EBY <I>v.</I> EBY'S Assignee.
• Court: Pennsylvania Supreme Court

5 Pa. 435

EBY v. EBY'S Assignee.

Supreme Court of Pennsylvania.

November 30, 1846.

December 7, 1846.

Nov. 30.

IN error from the District Court for the city and county of Lancaster.

Fordney and Frazer, for plaintiff in error, cited Diemer v. Sechrist, 1 Penna. Rep. 420; Foulk v. Brown, 2 Watts, 214, 215; Backestoss v. Commonwealth, 8 Watts, 286.

Stevens, contrà, cited McDowell v. McCullough, 17 Serg. & Rawle, 51, 53; Foulk v. Brown, 2 Watts, 209; Bailey v. Jackson, 16 Johns. R. 214.

Dec. 7. COULTER, J.

Jacob Eby, junior, executed and delivered his bond to Jacob Eby, senior, his father, for £300, dated the 1st of April, 1816, conditioned for the payment of £150 on the 1st of April, 1817. Jacob Eby, the obligee, transferred and assigned it to Daniel Eby, for value received, according to the provisions of the act of Assembly in such case made and provided. Daniel Eby brought an action of debt in the District Court of Lancaster county, to February Term, 1845, against Jacob Eby, junior. To this action the defendant pleaded the statute of limitations, payment with leave, &c. The plea of the statute of limitations was no doubt intended to apply exclusively to the second count in the declaration which covered other claims than the bond now in question, and which was withdrawn on the trial, and no evidence offered to support it. The first count of the declaration was on the bond for £300. The plaintiff called Christian Rauch, who proved that the assignment was executed in his presence, and that of Eberman, who both subscribed as witnesses, on the 18th September, 1837, the date of the assignment. The bond and assignment were then read to the jury. The plaintiff, for the purpose of removing and rebutting the presumption of payment arising from the lapse of twenty years, gave in evidence by Christian Rauch, that he was present at Daniel Eby's house, in 1837; thinks it was in hay-making or harvest, in June or July. Jacob Eby, junior, and Jacob Eby, senior, were present, and Daniel Eby was in and out of the room occasionally. Rauch then testified as follows: "This bond (meaning the one declared upon) was produced, and a demand made by Jacob Eby, senior, of young Jacob, and it was admitted that nothing was paid. What was said I do not know, but I put it down on paper that it was admitted. The paper was a memorandum I made at the time, in presence of the parties and by their directions. There was a settlement between the parties, Jacob Eby, senior, and Jacob Eby, junior. It was not in writing nor signed. This bond was in the settlement, and a note for $140. I repeat what I said before. I don't remember the words, but I am sure the debt was admitted as due. This was before the assignment to Daniel, but not long before, and not on the same day. The settlement embraced all that was between them at that time. It was agreed to by both. There was no time fixed for the payment of the bond. It was included in the settlement. I do not remember that the old man made a formal demand, except that it is on this paper. I don't recollect that Jacob, the younger, admitted the bond to be due. It is only because I see the words there that I say he admitted it, for I would not have put it down if he had not."

The counsel for the defendant excepted to that part of the witness's testimony in which he speaks of the admission of Jacob Eby, junior, and the demand of Jacob Eby, senior, from inference from what he put down on the paper. The court overruled the objection, and sealed a bill of exceptions, which is assigned as the first error.

The legal presumption of payment which the law allows at the expiration of twenty years after the debt becomes due, is an act of tenderness towards the debtor, which is sustained by the absence of evidence, and like other presumptions must yield and give way before any circumstances and facts on which the mind can rest with satisfaction, by which it is rebutted or repelled. It has not the power or effect of a positive statutory enactment of limitation or oblivion, which extinguishes the original demand and requires a new promise to pay, or its equivalent. The mind must be free to admit the presumption, and if the exhibition of facts or circumstances interdict and forbid the conclusions, its protection is removed; McDowell v. McCullough, 17 Serg. & Rawle, 53; Foulk v. Brown, 2 Watts, 214; Levers v. Van Buskirk, 7 Watts & Serg. 70. The witness, it is true, did not recollect the precise words used by either party after the lapse of seven or eight years. But there was the writing indited by him under the authority and by the express direction of the parties. That writing would not melt into air, or fade like the memory of man, and the caution and circumspection of the witness was evidence of the value of his testimony, because that paper was made to be an abiding memorial of the settlement. It cannot be assimilated, although that was attempted in the argument, to memoranda made by witnesses to assist their recollection, for this was the act of the parties themselves, by their authorized agent, and when the witness spoke of the transaction he was very justly allowed by the court to speak of the paper as furnishing evidence of their acts and declarations. It was the highest and best evidence which could be given of the settlement. After the court sealed the first bill of exceptions, the...