Mills v. Davis

charged is necessary (id., § 395); but there is a proviso that this enactment “ does not alter the effect of a payment of principal or interest” (§ 395). There is no suggestion or pretense that by any such acknowledgment or promise as the statute requires, a new and continuing contract was created, nor is there any allegation or suggestion of payment of any portion of principal, and therefore the enquiry before the referee was limited to the single question whether there had been any such payment of interest as would take the demand out of the statute.

That fact, if it existed, might be proved in the same manner as before an acknowledgment or a new promise was required to be in writing. The statute changes neither the nature nor effect of part payment, nor does it prescribe any new rule of evidence in regard to it. It merely recognizes and continues the rule as established by the previous decisions of the courts. Bank v. Ballou, 49 N. Y., 155 ; Harper v. Fairley, 53 id., 442. It may still be proved by paroi. Cleave v. Jones, 6 Exch., 573; Bank v. Ballou, supra. There is no testimony of that character showing payment. Although the claimant at once assumed the burden of showing that the case was freed from the statutory bar, the only proofs of payment offered by him were certain writings upon the back of the note made by himself and reading as follows: 11 Interest paid on the within note to November 17, 1868. Clarissa Darling, by B. S. M. Interest paid oil the within note to November 17, 1870. Interest paid on the within note to November 17, 1875. Interest paid on the within nóte to November 17, 1876. Interest paid on the within note to November 17, 1877. Interest paid on the within note to November 17, 1878.” An indorsement or memorandum of part payment is held competent evidence for the consideration of a jury as showing an acknowledgment of debt, and to rebut the presumption of its payment arising from the lapse of time. But in order to render such indorsements admissible, it must appear that when made there was a pecuniary interest with which they were at variance. It was, therefore, held in Roseboom v. Billington ( 17 John., 181 ) that to make such indorsement admissible, it must be proven to have been made before the presumption of payment attached. Nothing less has been required from the day of that decision to the present time, and the case is decisive in favor of- this appeal. The note then in suit was dated on the 9th of January, 1808, payable in two years. An action was brought upon it in 1817, and the statute of limitations was interposed as a defense. Upon the trial the plaintiff offered to prove an indorsement on the note in his own handwriting, dated October 18, 1811, acknowledg

ing the receipt of $30, in part payment of the note. This was objected to and excluded. The defendant had a verdict and the plaintiff brought a writ of error.

states the question to be “whether an endorsement of a payment on á promissory note, in the handwriting of the payee, without any other evidence of the fact of payment, ought to have been submitted to the jury, as proof of the payment, and thereby to take the case out of the operation of the statute of limitations.” And, after a discussion of the matter upon principle and authority, says, “an endorsement, therefore, on a bond or note, made by the obligee or promisee, without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party making such endorsement, unless it be shown that it was made at a time when its operation would be against the interest of the party making it. If such proof be given, it would, I think, be good evidence for the consideration of the jury.”

Something more then is needed than the endorsement even to carry the case to the jury. It must appear to have been made by a creditor, and at a time when he had no motive to. give a false credit, and at least before the statute of limitations can have operated (Read v. Hurd, 7 Wend., 409 ; Hulbert v. Nichol, 20 Hun, 459 ; Briggs v. Wilson, 5 De G. M. & G., 12), and even then it is for the jury to say whether the payment was in fact made, and they may inquire, among other things, whether upon the whole, the interest of the creditor may not be promoted rather than impaired by giving effect to the endorsement, and if so reject it altogether. In the case at bar it is at this point that the plaintiff’s case fails. Of ‘itself neither endorsement has any tendency to show when it was made. It would be equally true whether made on a particular 17th day of November, or at any other time. It recites or declares a fact, and is consistent as a narrative of a past, or an assertion of a present act. Each might have been made after the time when the statute had taken effect. Nor is there extrinsic proof of the time when the endorsements were made, nor evidence of explanatory circumstances. The plaintiff, under an objection grounded on section 829, and to which I shall later on refer, says the note came into his “possession as a part of the estate of Clarissa Darling, deceased,” and that the endorsements of interest, are in his handwriting. He was asked by his counsel) “were all the endorsements made by you during the lifetime of Elizabeth Jayne?” The question was objected to by the defendant on the grounds that (1) it was leading, (2) was a declaration in his own favor, and (3) inadmissible under section 829.

. He answered: “They were.” The wife of the- plaintiff

was a daughter of the deceased, and as such entitled to a third of whatever should be received upon the note. She testified to having “seen the note from year to year since her mother’s death.” Asked by plaintiff’s counsel:. “Have you seen the writing on the back of this paper.?” Answered: “Yes, sir.” Again asked: “Did you see those writings from time to time as they were made?” Answered: “Yes, sir.” Again: “Were they all made during the life of Elizabeth Jayne?” Answered: “Yes, sir.” Asked: “The money which was indorsed as received on that note, did any of it go to you?” Answered: “Yes, my share.” Question: “ When did you receive the last money •on it?” Answer: “I don’t remember.” She says: “I know when the different indorsements were made, only by the note; the note tells how many different indorsements there are on it; I have no knowledge of it, nothing but the note.”

Although greatly aided by a cross-examination which gave full opportunity to her to indulge in inference and imagination, it could hardly be said that she knew anything of the matter inquired of, except from the plaintiff, her husband, either as to the indorsements or the receipt of money. It is enough, 'however, that the witness is silent as to when the last indorsement was made. And that is really the only one of importance in this inquiry. Unless that was made within six years of the death of the maker of the note, the rest are of no moment. But aside •from these considerations, and in view of the statute (Code, § 829) which prohibits “a party or person interested in the event” from testifying in his own behalf or interest against the executor of a deceased person concerning a personal •transaction between himself and the testator, the plaintiff was improperly allowed to testify as to the length of time he had held possession of the note, or that the indorsements on the note were in his handwriting and made during the life-time of the testatrix. Each circumstance had a. material bearing upon the issue, and each was important ■only because it was a transaction to which the decedent was a party. To the first, as acquiescing in the continued •possession of the note, and thereby permitting an implication of its validity, and to the other as payor of the money' referred to in the indorsement. Unless that money was paid by her, or the indorsement made with her implied assent, it was of no significance.

It was also error to allow the evidence of Catharine, the wife of the plaintiff. She was the daughter of the payee of the note, the plaintiff’s testatrix, and, to the extent of one-third of the amount, entitled to share in the recovery. She was therefore a person interested in the event of the

proceeding. The same remark applies to Mary Bay lis „ She was a daughter of the payee, a sister of the. preceding; witness, and personally interested in like manner.

Except for the testimony of these three witnesses (the^ plaintiff and the two daughters of his testatrix), there-would have been no evidence to suggest even a liability upon the note. No part of it was competent, and because of its admission and the other errors above referred to, the judgment of the court below should be reversed and a new trial granted, costs to abide the event.

All concur, except Earl, J., not voting.