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Henderson v. Henderson

3 Denio 314 Court N.Y. Sup. Ct. English

Contents

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p. 314
Henderson, survivor, &c. vs. Henderson and another.

Headnote

The presumption of payment, allowed as a defence to actions on judgments and sealed instruments, by 2 R. S 301, §§ 46, 48, must be pleaded as payment.
The affidavit accompanying such a plea, required by rule 99, instead of stating it to be true in substance &c., may set out the facts which raise the presumption and negative those which would repel it.
A plea in such a case that the right of action accrued more than twenty years before the commencement of the suit is bad.
Debt on a judgment in this court of May term, 1823, for §6790,26. Plea, that the right of action of the plaintiff upon the said judgment accrued more than twenty years before the commencement of this suit, to wit, on the 9th day of July, 1823, concluding with a verification. Demurrer and joinder.
G. R. J. Bowdoin, for the plaintiff,
said the plea should have been payment. (2 R. S. 301, §§ 46, 48.)
D. D. Field, for the defendants.
We could not plead payment,’ because the defendants could not make the affidavit of the truth of the plea required by the 99th rule of the court. And besides, the plea is a good one. On the facts pleaded the statute raises a conclusive presumption of payment.

It is not a conclusive, but only a prima facie presumption, which may be repelled by proof of payment of some part of the debt, or a written acknowledgment of a right of action within twenty years. (§ 48.) The statute has not altered the form of pleading. The plea should be payment, upon which issue should be joined. Under that .issue the defendant may show actual payment, or rely on the lapse of time as a ground for presuming payment. And in answer to the presumption, the plaintiff may show a partial payment, or a written acknowledgment of a right of action within twenty years.

If the defendant cannot, with a good conscience, make an

p. 315
affidavit of the truth of the plea in the words of the 99th rule, he may swear to the facts which show the plea to be true, to wit, that the judgment was recovered more than twenty years before the commencement of the suit, and that he has made no payment, nor given any written acknowledgment of a right of action on the judgment, within twenty years.

Judgment for the plaintiff.