Rutherford County NcArchives Court.....Finch's, Executor's V. Elliot 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 4:50 pm

Source: Nc Reports Vol 11, 1897
Written: 1825

December Term 1825

FINCH'S EXECUTOR'S v. ELLIOT. 

From Rutherford.

Where, upon a record and statement of the case sent to this Court, it appears 
that the charge of the Court was not applicable to the facts stated, a new 
trial must be granted; for if there was no other evidence but that stated, the 
charge was irrelevant; and if there was other evidence, it should form part of 
the case; and in either event a new trial will be granted.

This was an action on the case, brought to recover the amount of two orders 
drawn by one Nelson, in favor of the plaintiff's testator, on the defendant, 
and which had been accepted by the defendant in 1812. Defendant pleaded, among 
other things, the statute of limitations; and on the trial it was proved by a 
Mr. Hord on behalf of plaintiff that in the year 1817 the orders were sent to 
him by plaintiff, who lived in Virginia, for collection: that he called on the 
defendant, and in a conversation with him he produced a number of papers, from 
which the witness became satisfied that nothing was due to the plaintiff, and 
he returned the orders; in the year 1819 one James Finch came to the State as 
agent for the plaintiff, and Hord went with him to see the defendant; in the 
conversation which took place, defendant again produced certain papers, from 
which Hord was satisfied, and he thought that the agent was also, that nothing 
was due. The writ issued April 15th, 1821, and on one of the orders a payment 
was endorsed, bearing date May 1st, 1814.

The Court, on this evidence, instructed the jury that nothing short of an 
express acknowledgment of a subsisting debt, at the tine of making the 
acknowledgment, could take a case out of the statute; that an agreement to 
settle would have that effect, and it was for them to say whether any such 
agreement was made by the defendant at (62) the times spoken of by Hord; if 
there was, they were instructed to find for the plaintiff, and if not, for the 
defendant.

The jury found for the plaintiff, and the case stood on a rule to show cause 
why there should not be a new trial.

Wilson, for defendant, contended that there was no evidence either of an 
acknowledgment or promise; and, consequently, the charge of the Judge, however 
correct as to the law, had no application to the case as proved. He should 
have explained the law arising on the facts of this case, by informing the 
jury that if the evidence was all true, yet the law would not, under the 
circumstances, infer a promise or acknowledgment.

Hall Judge. — When the Court charged the jury that there must be a subsisting 
debt, at the time of the acknowledgment, or that a proposition to settle 
accounts would take the case out of the statute of limitations, it would 
appear that there must have been more evidence before the jury than appeals 
upon the record sent here. It does not appear from the evidence exhibited here 
that there was an acknowledgment of a subsisting debt, or an agreement to come 
to a settlement; and if there was no other evidence before the jury I think 
the charge was not relevant, although there can be no doubt but it is 
warranted by law. If there was no other evidence before the jury I think there 
should be a new trial; if there was, it should form part of the case, and for 
that purpose a new trial should be granted. I think the evidence offered by 
the plaintiff establishes nothing from which a new promise or an 
acknowledgment can be collected.

Henderson. Judge.-I am almost afraid to touch this subject, for the decisions 
are so much at variance and (63) so numerous, that it is almost impossible to 
say anything on the subject without being in opposition to some of them.

I still retain the opinion that an acknowledgment of an unsatisfied 
consideration, when accompanied with an express refusal to pay, will take a 
case out of the statute; but in such a case the unsatisfied consideration 
should very clearly appear from the acknowledgment, taken altogether and in 
connection with the things referred to in it, as if at the time of refusal 
there was an explicit acknowledgment that the debt had never been paid; or 
where it clearly appears from the reference there made, as if a defendant were 
to say that he would not pay the debt, for that he was discharged from its 
payment by his certificate of bankruptcy, and it should appear that the debt 
neither was nor could be proved under the commission; it is not sufficient 
that it is shown by argument and conjecture that it is quite probable that it 
has not been paid. The whole transaction taken together, where there is an 
express refusal to say, or a reliance on the statute of limitations as a 
protection, which I think is the same thing, amounts to an acknowledgment of 
an unsatisfied consideration, it is not sufficient that the jury beliove from 
other sources that the debt is unsatisfied, they must found that belief upon 
the acknowledgment and its references, otherwise it would amount almost to a 
repeal of the statute, in such cases, i. e., where there is an express refusal 
to pay. It is not sufficient that the thing referred to or relied on to show 
the discharge, does not show it; it should show the reverse.

In the present case I cannot see that there was any evidence which the Court 
should have left to the jury; for allowing it to be true, it did not prove the 
point in issue upon the statute, nor could the jury infer it. The witness 
stated that the defendant, upon being applied to by him as the plaintiff's 
agent, said that he had paid the debt, and produced papers which satisfied him 
that it was paid; that the plaintiff afterwards applied in the witness' pres-
(64) ence, who made the same reply as before, and again produced papers, which 
the witness thought satisfied the plaintiff. Here was no evidence, either 
direct or indirect, from which the jury were at liberty to say that the 
defendant agreed to settle with the plaintiff, and the Judge should have so 
instructed the jury. The rule for a new trial must be made absolute. The Chief 
Justice assented.

Judgment reversed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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