Opinion · Supreme Court of North Carolina
Joseph v. . Hauser
Joseph v. . Hauser, 29 N.C. 167 (N.C. 1847)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1847-06-05
- Topic
- general
Nash, J. ft was an action of debt on a bond. The-defendant pleaded, non est faetum, payment and set off,, accord and satisfaction, release, solvit ad diem, and solvit post diem,, the Act of 1826-7, presuming payment, &c. To rebut the presumption of payment, the plaintiff offered in evidence a judgment recovered in his name upon this bond against N-oah Ward, the principal obligor, but upon which there had been a partial payment only, made in the year 1840. The action against Ward was commenced in 1831. This testimony was rejected by the presiding Judge, and under his instructions the jury found a verdict for the defendant.
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JOSEPHv. HAUSER,29 N.C. 167(1847)
JOSEPH DOUB v. JOSEPH HAUSER, ADMINISTRATOR.
Supreme Court of North Carolina
In an action of debt upon a bond, where the defendant has pleaded several pleas, and, among others, the plea ofnon est factum, and the jury find all the pleas in favor of the defendant, this Court is concluded by that verdict and cannot inquire into the instructions of the court below, as to the other pleas, whether those instructions were erroneous or not.
APPEAL from STOKES Spring Term, 1847;Manly, J.Debt, brought in 1844, upon a bond for $668, due 2 June, 1826, purporting to be executed by Noah Ward, William J. Ward, Elijah Ward, and Henry Doub. Pleas:Non est factum, and the statute of 1826, raising a presumption of payment upon bonds after ten years from the day of payment. It was in proof that in 1831 three of (168) the obligors, to wit, Wiley J. Ward, Elijah Ward, and Henry Doub, had sent the bond to Tennessee, with power of attorney from them to collect the debt of Noah Ward, who it appeared was the principal obligor. And in the further progress of the cause the plaintiff offered in evidence, upon the issue under the statute, as admissible and pertinent to repel the presumption created thereby, an exemplification of a record from Tennessee of one of the courts in that State in a cause between himself, the plaintiff in this cause, and Noah Ward, wherefrom it would appear that a recovery had been effected upon the bond now in suit, and in 1840 the sum of $600 made upon afi. fa. on the judgment.
This evidence was objected to, and the court, deeming it inadmissible, so ruled, for which the plaintiff excepts. In obedience to instructions from the court, the jury found a verdict for the defendant, and the plaintiff appealed from the judgment thereon.
No counsel for plaintiff.Morehead for defendant.Page 124
NASH, J.
It was an action of debt on a bond. The defendant pleadednon estfactum, payment and set-off, accord and satisfaction, release,solvit addiemandsolvit post diem, Laws 1826-7, presuming payment, etc. To rebut the presumption of payment, the plaintiff offered in evidence a judgment recovered in his name upon this bond against Noah Ward, the principal obligor, but upon which there had been a partial payment only, made in 1840. The action against Ward was commenced in 1831. This testimony was rejected by the presiding judge, and under his instructions the jury found a verdict for the defendant.
In the case presented to us it appears that the jury found all the issues in favor of the defendant, and of course passed upon their (169) plea ofnon est factum. That finding puts an end to the case, for the jury have said it was not the deed of the defendant. It is to express any opinion as to the correctness of the presiding judge in ruling out the testimony offered by the plaintiff. We are precluded from so doing by several adjudications of this Court,Morrisey v.Bunting,12 N.C. 6;Bullock v. Bullock,14 N.C. 260;Martin v. Waugh,19 N.C. 518.
PER CURIAM. No error.