Hall v. . Gibbs

87 N.C. 4

• Court: Supreme Court of North Carolina
• Decided: October 5, 1882
• Status: Published

Opinion

Ashe, J.

The opinion intimated 'by His Honor is -correct. The bond sued on matured on the 25th of January, 1868, and the cause of action then having accrued to the plaintiff, the.statute of presumptions in force previous to .the ratification of the Code of Civil Procedure is applicable. C. C. P., § 16.

The action was not brought until 2.0th of-January, 1881, more than ten years after the right of action had accrued on this bond, and the presumption of its payment or .satisfaction had arisen within that' time. Rev. Code, ch. 65, § 18. {Act of 1826.) I-t is true this presumption may be rebutted, but there was no proof offered in rebuttal in this case. There was nothing shown on the trial to obstruct the •running of the statute. The death of the plaintiff’s intestate, the .obligee of the bond, .could not have .that-effect' I '. the act of 1826, which provides for the presumption of payment or satisfaction of bonds, &c., after ten years, there is no saving whatever. “It seems,” as Pearson, C. J., said in Hamlin v. Mebane, 1 Jones' Eq., 18, “to have been intended emphatically as a statute of repose.”

Nor was its eourse suspended by th,e death of the obligee before the expiration of the ten years after the right of action accrued under section 43 of the Code, for the provisions of that section only apply to the limitations prescribed in the Code of Civil Procedure.

No- error. Affirmed.