Ruffin, J.
We can perceive no error in the refusal of His Honor, either to dismiss the plaintiff’s action, or to allow the defendant, Welsh, a separate trial.
As to the first: It was so clearly the purpose of .counsel
to enter a
nolle prosequi
as to the 2nd and 3rd counts in his complaint and to pursue his action on the first, and this purpose was so unequivocally expressed that it was impossible for any one, either the court or the opposing counsel, to misapprehend it; and it would be a reproach to the law if it were to sacrifice the rights of a party upon a technicality, so strict and unimportant as the one insisted on here. In looking to the intention with which it was done, and being governed in his action thereby, His Honor did exactly what was done under similar circumstances by this court in the case of
Hill
v.
Overton,
81 N. C., 393. There, a plaintiff in the superior court had taken a nonsuit as to one of two defendants, and gone to trial as to the other one, and, after judgment, appealed. In considering the case, Judge Dillard takes note of the nonsuit, but says he shall treat it as a
nolle prosequi,
because he understood it to have been so intended by the party.
And as to the other: While it would have been perhaps more regular, when the defendant, Welsh, made his application to be allowed to come into the cause, to have framed a collateral and distinct issue between the plaintiff and himself, still, nothing of the sort was done; but at his own instance and solicitation he was made a party defendant in this action, and having thus voluntarily gotten into the same boat with the other defendant, he ought not now to complain that he has to share the perils of the voyage with her. And besides, we do not see that any harm could possibly come to him in the matter; for as it was, there were only three issues submitted for the consideration of the jury, and all of them so simple and easy to be comprehended that they could not produce any embarrassment in the minds of the jurors.
But after much consideration bestowed upon it, we have come to the conclusion that the defendants have a right to complain of the refusal of His Honor to charge, as requested
by them, in regard to the effect of the evidence upon the point of the insolvency of Thomas P. Burgwyn.
The presumption of payment, arising from the lapse of time under the statute, isone that the law itself makes; and it has such an artificial and technical weight that whenever the facts are- admitted or established, the court must apply it as an inference or intendment of the law ; and so too the question, whether that presumption has been rebutted, is one of law, which, when the facts are ascertained, the court must determine, and not leave to the discretion of the jury. As was said in
Buie
v.
Buie, 2
Ired., 87, the law intends to give to the lapse of time such technical weight as to
require
a jury to presume a payment, unless the presumption is rebutted ; and “ it is a question of law for the court, what circumstances, if true, are sufficient to repel it.” And the same principle is disinctly recognized in
Walker
v.
Wright,
2 Jones, 156; in
Woodhouse
v.
Simmons,
73 N. C., 30; and by the supreme court of the state of Pennsylvania, where they have a statute similar to our own, in the case of
Cope
v.
Humphreys,
14 Sergt.
&
R., 15.
The statute, while not strictly one of limitation, is in the nature of such ; and under it, the lapse of time creates, not a legal bar, hut a presumption of payment, which, though not conclusive, is yet
prima fade
evidence of it; and this presumption is not to be subjected to the discretion of a jury; but the law holds them bound to it if the facts are such as to put it in operation.
If the facts relied on to repel this inference of the law are disputed, or if the testimony in regard to them is conflicting, then they must be left to the jury to be ascertained, with such instructions as to the law, given by the court, as will enable them to apply it for one side or the other accordingly as they may find the facts to be. But if the facts are admitted, or if they be established by uncoiltradicted testimony, then it is the duty of the judge to announce the conclusion
of the law upen them, and net submit the question of payment, as an open one, to the jury.
In the ease before us, there were two circumstances relied lipón t© repel this presumption of payment: 1. The insolvency of the principal maker of the bond, Thomas P. Bur-gwyn ' and 2. The payment as endorsed upon the paper. These two the plaintiff undertook to make good by proof. In regard to the first, he proved by Mr. Peebles that the said Burgwyn, in November, 1866, made a deed in trust, conveying all the property he had to witness as his trustee for the payment of his debts, and from that time until his death, in the year following, he was insolvent; that in the year 1853 he had given a mortgage for $20,000 upon certain of his lands, which was foreclosed and satisfied in full, by a sale of the land in 1S68; that this mortgage and the deed in trust to witness embraced all the property left him by the result of the war, and that it failed, by a large amount, to pay his debts; but that, until the war,-he was a rieh man, «owning in lands, negroes, stock, &c., $150,000 worth of property, and that a debt of $4,000 or $5,000 could have been made out of him in 1859, 1860 or 1861, and, but for the stay law, up to November, 1866. The plaintiff also proved by Mr. Calvert, who was the administrator of said Burgwyn, that his property had failed to pay his debts, and that no payment had been made by him, as administrator, on the «claim of plaintiff This was the whole of the evidence offered as to the insolvency of Thomas Burgwyn, and being uneontradicted, and the defendant’s prayer for instructions being in the nature of a demurrer to it, it was the duty of His Honor to have determined, as a matter of law, its sufficiency to repel the presumption of payment springing out of the .admitted lapse of time, and he should not have submitted the question of insolvency, at all, to the jury. That the evidence offered was wholly insufficient for the end in view becomes perfectly manifest, when it is subjected to that
test which this const has prescribed in many of its decisions..
McKinder
v.
Littlejohn,
4 Ired., 198, and
Walker
v.
Wright, supra,
and the eases there referred to. There it is said that the only true rule, in such a case, is to require such a state of insolvency to he shown to have existed, during the entire teu years nest after the maturity of the debt, as will prove that the debtor did not pay because he
eould not,
and nothing short of this will the law permit to- destroy its own inference arising from the lapse of time.
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Ruffin, J.
We can perceive no error in the refusal of His Honor, either to dismiss the plaintiff’s action, or to allow the defendant, Welsh, a separate trial.
As to the first: It was so clearly the purpose of .counsel
to enter a
nolle prosequi
as to the 2nd and 3rd counts in his complaint and to pursue his action on the first, and this purpose was so unequivocally expressed that it was impossible for any one, either the court or the opposing counsel, to misapprehend it; and it would be a reproach to the law if it were to sacrifice the rights of a party upon a technicality, so strict and unimportant as the one insisted on here. In looking to the intention with which it was done, and being governed in his action thereby, His Honor did exactly what was done under similar circumstances by this court in the case of
Hill
v.
Overton,
81 N. C., 393. There, a plaintiff in the superior court had taken a nonsuit as to one of two defendants, and gone to trial as to the other one, and, after judgment, appealed. In considering the case, Judge Dillard takes note of the nonsuit, but says he shall treat it as a
nolle prosequi,
because he understood it to have been so intended by the party.
And as to the other: While it would have been perhaps more regular, when the defendant, Welsh, made his application to be allowed to come into the cause, to have framed a collateral and distinct issue between the plaintiff and himself, still, nothing of the sort was done; but at his own instance and solicitation he was made a party defendant in this action, and having thus voluntarily gotten into the same boat with the other defendant, he ought not now to complain that he has to share the perils of the voyage with her. And besides, we do not see that any harm could possibly come to him in the matter; for as it was, there were only three issues submitted for the consideration of the jury, and all of them so simple and easy to be comprehended that they could not produce any embarrassment in the minds of the jurors.
But after much consideration bestowed upon it, we have come to the conclusion that the defendants have a right to complain of the refusal of His Honor to charge, as requested
by them, in regard to the effect of the evidence upon the point of the insolvency of Thomas P. Burgwyn.
The presumption of payment, arising from the lapse of time under the statute, isone that the law itself makes; and it has such an artificial and technical weight that whenever the facts are- admitted or established, the court must apply it as an inference or intendment of the law ; and so too the question, whether that presumption has been rebutted, is one of law, which, when the facts are ascertained, the court must determine, and not leave to the discretion of the jury. As was said in
Buie
v.
Buie, 2
Ired., 87, the law intends to give to the lapse of time such technical weight as to
require
a jury to presume a payment, unless the presumption is rebutted ; and “ it is a question of law for the court, what circumstances, if true, are sufficient to repel it.” And the same principle is disinctly recognized in
Walker
v.
Wright,
2 Jones, 156; in
Woodhouse
v.
Simmons,
73 N. C., 30; and by the supreme court of the state of Pennsylvania, where they have a statute similar to our own, in the case of
Cope
v.
Humphreys,
14 Sergt.
&
R., 15.
The statute, while not strictly one of limitation, is in the nature of such ; and under it, the lapse of time creates, not a legal bar, hut a presumption of payment, which, though not conclusive, is yet
prima fade
evidence of it; and this presumption is not to be subjected to the discretion of a jury; but the law holds them bound to it if the facts are such as to put it in operation.
If the facts relied on to repel this inference of the law are disputed, or if the testimony in regard to them is conflicting, then they must be left to the jury to be ascertained, with such instructions as to the law, given by the court, as will enable them to apply it for one side or the other accordingly as they may find the facts to be. But if the facts are admitted, or if they be established by uncoiltradicted testimony, then it is the duty of the judge to announce the conclusion
of the law upen them, and net submit the question of payment, as an open one, to the jury.
In the ease before us, there were two circumstances relied lipón t© repel this presumption of payment: 1. The insolvency of the principal maker of the bond, Thomas P. Bur-gwyn ' and 2. The payment as endorsed upon the paper. These two the plaintiff undertook to make good by proof. In regard to the first, he proved by Mr. Peebles that the said Burgwyn, in November, 1866, made a deed in trust, conveying all the property he had to witness as his trustee for the payment of his debts, and from that time until his death, in the year following, he was insolvent; that in the year 1853 he had given a mortgage for $20,000 upon certain of his lands, which was foreclosed and satisfied in full, by a sale of the land in 1S68; that this mortgage and the deed in trust to witness embraced all the property left him by the result of the war, and that it failed, by a large amount, to pay his debts; but that, until the war,-he was a rieh man, «owning in lands, negroes, stock, &c., $150,000 worth of property, and that a debt of $4,000 or $5,000 could have been made out of him in 1859, 1860 or 1861, and, but for the stay law, up to November, 1866. The plaintiff also proved by Mr. Calvert, who was the administrator of said Burgwyn, that his property had failed to pay his debts, and that no payment had been made by him, as administrator, on the «claim of plaintiff This was the whole of the evidence offered as to the insolvency of Thomas Burgwyn, and being uneontradicted, and the defendant’s prayer for instructions being in the nature of a demurrer to it, it was the duty of His Honor to have determined, as a matter of law, its sufficiency to repel the presumption of payment springing out of the .admitted lapse of time, and he should not have submitted the question of insolvency, at all, to the jury. That the evidence offered was wholly insufficient for the end in view becomes perfectly manifest, when it is subjected to that
test which this const has prescribed in many of its decisions..
McKinder
v.
Littlejohn,
4 Ired., 198, and
Walker
v.
Wright, supra,
and the eases there referred to. There it is said that the only true rule, in such a case, is to require such a state of insolvency to he shown to have existed, during the entire teu years nest after the maturity of the debt, as will prove that the debtor did not pay because he
eould not,
and nothing short of this will the law permit to- destroy its own inference arising from the lapse of time. Besides this, in a caso like vhe, present, the presumption of payment, unlike that which is raised of the death of a party from his being continually absent and unheard of for seven years, is, by law, referred to- a particular period of tim®, and has relation to the day on which, the debt became- due.
Powell
v.
Brinkley, Bu
sb., 154. If that he done in this instance, it will be seen that when his debt matured in 1856, Mr. B-urgwynwas a man of large fortune. So that we are of the opinion that when requested by the defendants to do so, His Honor should have instructed the jury that the evidence in regard to the insolvency of Thomas P. Burgwyn was, by the law, deemed insufficient to .repel the presumption o-f payment arising under the, statute, and he should have eliminated altogether the question of his insolvency out o-f the matters submitted for their consideration.
IIis Honor seems- to have given right instructions-to the jury as to the effect upon, the rights o-f theparties, which the credits, as- endorsed on. the bond, should have, according to what the jury might find to- be- the truth in regard to them,, and it may be that in coming to- the conclusion they did, the jury were, solely influenced by that portion of the charge and the evidence on that single point. But it cannot be certainly known that they were, and it is that uncertainty which entitles the- defendants to a new trial. They have a right to have the question, as to the truth of those credits and their proper dates, considered of, freed from all cannec
tion with any question of insolvency, since of the latter,, there is no legal evidence.
Except to clear the way for another hearing, by settling the point as to the legal right of the defendant, Welsh, to demand a separate trial, wo have purposely forborne to allude to the matters in dispute between the plaintiff and him —deeming it just to all sides, that neither party should be prejudiced in another trial by an expression of any views which we may entertain.
Error.
Venire, de
novo.