Opinion · Nclaw North Carolina

McLEAN v. McDUGALD, 53 N.C. 383 (1861)

HUGH McLEAN v. NEILL McDUGALD, ADMINISTRATOR., 53 N.C. 383 (N.C. 1861)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1861-01-01
Topic: general

McLEAN v. McDUGALD, 53 N.C. 383 (1861) HUGH McLEAN v. NEILL McDUGALD, ADMINISTRATOR.Supreme Court of North Carolina (June Term, 1861.) 1. It is no objection to the indorsement of a bond that the presumption of payment from the lapse of time was applicable to it, when the indorsement was made. 2. An assignment, without consideration, passes the title, and where such assignment was made to evade the law regulating the venues of action, the objection, to be good, must be taken by plea in abatement.

Citator

UpLaw has not yet analyzed McLEAN v. McDUGALD, 53 N.C. 383 (1861). The absence of a flag is not a finding that it is good law.

McLEANv. McDUGALD,53 N.C. 383(1861)

HUGH McLEAN v. NEILL McDUGALD, ADMINISTRATOR.

Supreme Court of North Carolina

(June Term, 1861.)

1. It is no objection to the indorsement of a bond that the presumption of payment from the lapse of time was applicable to it, when the indorsement was made.

2. An assignment, without consideration, passes the title, and where such assignment was made to evade the law regulating thevenuesof action, the objection, to be good, must be taken by plea in abatement.Page 293

DEBT on bond tried beforeSaunders, J., at last Spring Term of HARNETT.

The pleas werenon est factum, payment and no assignment. The following case agreed sets out the facts:

The note on which the action was brought purported to have been executed by the defendant's intestate more than ten years before the suit was brought. After ten years from the execution of the note elapsed, it was assigned by the payee therein by indorsement and transmitted to the indorsee by the hands of a third person; the indorsee assigned the note to plaintiff by indorsement and delivery, and the suit was then commenced.

The plaintiff proved the execution of the note, and that it had not been paid. The assignment to the first endorsee was made without consideration, and in order to enable the plaintiff to sue in Harnett County, the defendant residing in Cumberland. It was agreed that if the foregoing facts amounted to a transfer to the plaintiff of the legal interest in the note, there should be a judgment in favor of the plaintiff for $800, of which sum $285 is principal. Otherwise, there should be judgment for the defendant. The court gave judgment for the plaintiff, and the defendant appealed. (384)

N. McKay for plaintiff.Phillips for defendant.

MANLY, J.

We concur with his Honor below in his opinion upon the case agreed. The objection to the validity of the assignment seems to be two-fold: first, because of the presumption of payment which attached to it, when assigned; secondly, because of the purpose thereby to evade the operation of law as to jurisdiction. Neither ground is tenable.

1. The lapse of time is not a nullification of the bond, as cancellation would be, but is only presumptive evidence of payment. The statute of presumption is of no greater force of effect than a receipt upon the paper would be. In both cases, the fact of payment beingprima facieonly, and questionable, an indorsee would take title subject to the inquirers of fact.

2. The indorsement being good to pass the title and only invalid to give a fraudulent venue to the action, it will follow that the second ground of objection is to the legality of the venue. This must be taken advantage of by plea in abatement, Rev. Code, ch. 31, sec. 37. An indorsement without consideration is effective to pass title, simply. Upon the supposition that the purpose to evade the law regulating the venue of actions is unlawful, the indorsement would be invalid for such purpose, and the right of venue would consequently remain unchanged.Page 294

If the action had been brought in the county of Cumberland, where the defendant resides, it might have been brought, we take it, in the name of the indorsee, and, if so, this is a test which shows that the principle of the ground is the illegality of the venue.

PER CURIAM. Affirmed.

(385)