140. Shop Books; Proof as to Medium of Payment.-The whole question of the use of books of account as evidence is fully treated in another article, and only the general rules applicable to the use of shop books to prove payment are stated at this place. It is usually held, in the absence of express statutory provision to the contrary, that the rule that books of account kept in the ordinary course of business are admissible in favor of the person keeping them has no application to cases of money loaned, or payments made, by the party whose books are offered. Where the parties have been in the habit of treating cash items, both on the debit and credit side of the account between them, as the proper subject of a book charge, the proof of the loan or advancement of the money on the one side, or payment on account of the same on the other, may be made by the production of the books to the same extent as in other cases, and whether there has been such a course of dealing between the parties is a question for the jury. It is, in some states, provided by statute that books of account containing charges for money paid, laid out, furnished, or lent shall be received and admitted as evidence. It is not competent to give evidence of the contents of a private book entry by a deceased person to prove payments when neither the book nor a copy of the entry is produced, nor the book verified. The defense of payment may be supported either by proof of a payment in money or by proof that some other thing was given and received in payment. And parol evidence is admissible to show that at the time of making a contract it was to be paid in current money at the date of maturity.9 XII. PRESUMPTIONS In General 141. Payment by Debtor to Creditor.-Generally it is to be presumed that money transferred from one person to another is given and received in payment of a debt, where there is no evidence of the intention of the parties.10 Thus in the absence of all explanatory 3. See EVIDENCE, vol. 10, p. 1171 et seq. 4. Bracken v. Dillon, 64 Ga. 243, 37 Am. Rep. 70; Shaffer v. McCrackin, 90 Ia. 578, 58 N. W. 910, 48 A. S. R. 465. Note: 2 L.R.A. (N.S.) 401. See EVIDENCE, vol. 10, p. 1187. 5. Lewis v. England, 14 Wyo. 128, 82 Pac. 869, 2 L.R.A. (N.S.) 401 and note. 6. Note: 2 L.R.A. (N.S.) 404. 7. Bennett v. Bennett, 37 W. Va. 396, 16 S. E. 638, 38 A. S. R. 47. 8. Buddicum v. Kirk, 3 Cranch 293, 2 U. S. (L. ed.) 444; Nash v. Towne, 5 Wall. 689, 18 U. S. (L. ed.) 527; Morehouse v. Northrop, 33 Conn. 380, 89 Am. Dec. 211. 9. M'Minn v. Owen, 2 Dall. (Pa.) 173, 1 U. S. (L. ed.) 336. 10. Butler v. Triplett, 1 Dana (Ky.) 152, 25 Am. Dec. 136. evidence, a father advancing money to his child, to whom he is at the same time in debt, shall be presumed to do so with a view to the discharge of the debt, if the sum advanced be sufficient; and that, even though it is a portion given in marriage.11 The general rule is that, in the absence of explanation, the presumption arising from the delivery of a check is that it was delivered in payment of a debt and not as a loan or gift but it may represent a loan or a gift, or money of the drawer, to be applied by the drawee to the use of the former as his agent or otherwise. And it is to be remembered that the presumption is one of fact, a mere rule of argument, proceeding from convenience, the common experience being that a check drawn on a bank of deposit is much more frequently a means of payment than otherwise; and the presumption is overcome by proof of circumstances from which it may fairly and reasonably be inferred. that the transaction was in fact a loan.12 142. Possession by Debtor of Written Evidence of Debt.-Ordinarily the owner of a note, bond or other evidence of indebtedness retains it until it is paid. Hence when it is found in the possession of the maker, a presumption of payment arises, 13 and it is evidence of satisfaction by the debtor himself, because in the usual course of commercial transactions men pay no debts but their own.14 But this is a presumption of fact, not of law, and may therefore be rebutted.15 The rule has no application when it is the duty of the debtor to take possession of the note. Thus the doctrine does not apply to a case in which the debtor is the administrator of the creditor's estate; 16 and as between husband and wife the presumption cannot arise although the one did not have access to the papers of the other.17 A presumption of payment from possession by the obligor does not arise in the case of a negotiable instrument before due; but on the contrary, in such case it is a matter of legal presumption that the bill or note is unsatisfied, and that it was indorsed and placed in the hands of the maker for his accommodation.18 11. Kelly v. Kelly, 6 Rand. (Va.) 176, 18 Am. Dec. 710. 12. Leask v. Hoagland, 205 N. Y. 171, 98 N. E. 395, Ann. Cas. 1913D 1199 and note; Lewis v. England, 14 Wyo. 128, 82 Pac. 869, 2 L.R.A. (N.S.) 401. 13. Arnold v. Arnold, 124 Ala. 550, 27 So. 465, 82 A. S. R. 199; Cassem v. Heustis, 201 Ill. 208, 66 N. E. 283, 94 A. S. R. 160; Callahan v. Louisville First Nat. Bank, 78 Ky. 604, 39 Am. Rep. 262; Richardson v. Cambridge, 2 Allen (Mass.) 118, 79 Am. Dec. 767; Erwin v. Shaffer, 9 Ohio St. 43, 72 Am. Dec. 613; Weakly v. Bell, 9 Watts (Pa.) 273, 36 Am. Dec. 116; Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256 and note. See BILLS AND NOTES, vol. 3, pp. 1286-1287. 14. Craig v. Craig, 3 Rawle (Pa.) 472, 24 Am. Dec. 390. 15. Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256. 16. Arnold v. Arnold, 124 Ala. 550, 27 So. 465, 82 A. S. R. 199. Note: 14 Ann. Cas. 258. 17. Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256 and note. 18. McGee V. Prouty, 9 Metc. (Mass.) 547, 43 Am. Dec. 409; Erwin 143. Debtor Having Access to Papers; Possession by Joint Obligor.— The presumption of payment from mere possession can arise only where the possession is free from suspicion.19 Hence where the maker of a note has access to the papers of the holder, and may have acquired the note as well without payment as with, the presumption of payment does not arise.20 But according to another view the mere opportunity to obtain a note unlawfully does not as matter of law destroy the presumption arising from the possession, but the effect to be given to such opportunity taken in connection with the other circumstances is for the determination of the jury.1 This presumption is strictly predicable of a security payable by one. So the production of an evidence of indebtedness by one of several obligors is no evidence that he has paid the whole, because being incapable of manual possession by all, the custody of it by any one in particular is either accidental or dependent on a variety of circumstances. In some cases, it may possibly be committed to the particular obligor who has paid it, as evidence against the rest, but such is not the common course. It just as frequently happens that the bond is delivered. up in the absence of the rest who have paid their proportion to him who extinguishes the debt by payment of the residue. Therefore no presumption arises more favorable to the one state of things than to the other.3 Presumption of Payment from Lapse of Time 144. In General.-In all civilized countries where the law is administered as a science, having reference to the peace, quiet, and progress of society, as well as to the protection of individual rights, it has been thought wise that there should be some limit to litigation, some boundary beyond which contests or matters open to contest should be regarded as settled. Early in the judicial history of England the presumption of payment was raised after a great lapse of time between the creation of an obligation and an attempt to enforce it in the courts. This presumption became a part of the law of the United States and is applied in all jurisdictions. It originated in equity in the application of the maxim vigilantibus non dormientibus jura sub v. Shaffer, 9 Ohio St. 43, 72 Am. Dec. 613; Witte v. Williams, 8 S. C. 290, 28 Am. Rep. 294. 318, 59 Am. Dec. 147; Craig v. Craig, 3 Rawle (Pa.) 472, 24 Am. Dec. 390; Mills v. Hyde, 19 Vt. 59, 46 Am. Dec. 19. Arnold v. Arnold, 124 Ala. 550, 177. 27 So. 465, 82 A. S. R. 199. Note: 14 Ann. Cas. 257. 20. Clymer v. Groff, 220 Pa. St. 580, 69 Atl. 1119, 14 Ann. Cas. 256 and note. 1. Note: 14 Ann. Cas. 258. 2. Heald v. Davis, 11 Cush. (Mass.) 3. Craig v. Craig, 3 Rawle (Pa.) 472, 24 Am. Dec. 390. 4. Higginson v. Mein, 4 Cranch 415, 2 U. S. (L. ed.) 664; Gaines v. Miller, 111 U. S. 395, 28 U. S. (L. ed.) 466; McCoy v. Morrow, 18 Ill. 519, 68 Am. Dec. 578; Fagan v. Bach, 253 Ill. 588, veniunt, but was soon engrafted in the common law, and has since been steadily applied. It is not to be confused with the equitable doctrine of laches, since laches is generally regarded as being not delay alone, but rather delay working a disadvantage to another." Lapse of time may also be set up to show that no claim ever existed as well as to raise a presumption of payment." 145. Basis and Reason of Presumption.-The rule of presumption of payment when traced to its foundation is said to be a rule of convenience and policy. It was adopted by the law in the interest of repose and the ending of litigation. The presumption rests, not only on want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more cruelty than justice in them; that it relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible. In a word, the most solemn muniments are presumed to exist, in order to support a long possession; the most solemn of human obligations lose their binding efficacy and are presumed to be discharged after many years.10 Forbearance to enforce a pecuniary claim is not direct evidence that the money has been paid,11 but on the fact of forbearance the law builds a presumption that a demand has been satisfied, vesting it on the rational ground that a person naturally desires. 97 N. E. 1087, Ann. Cas. 1913A 505; 594; 68 A. S. R. 899; 90 A. S. R. 659; Courtney v. Staudenmayer, 56 Kan. 135 A. S. R. 110. 6. See EQUITY, vol. 10, p. 399. 7. Wanamaker v. Van Buskirk, 1 N. J. Eq. 685, 23 Am. Dec. 748. 392, 43 Pac. 758, 54 A. S. R. 592; 5. Gregory v. Commonwealth, 121 Howland v. Shurtleff, 2 Metc. (Mass.) Pa. St. 611, 15 Atl. 452, 6 A. S. R. 26,35 Am. Dec. 384; Jackson v. Wood, 804; Bean v. Tonnele, 94 N. Y. 381, 12 Johns. (N. Y.) 242, 7 Am. Dec. 46 Am. Rep. 153. 315; Bean v. Tonnele, 94 N. Y. 381, 46 Am. Rep. 153; Gulick v. Loder, 13 N. J. L. 68, 23 Am. Dec. 711; Alston v. Hawkins, 105 N. C. 3, 11 S. E. 164, 18 A. S. R. 874; Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454 and note; Hummel v. Lilly, 188 Pa. St. 463, 41 Atl. 613, 68 A. S. R. 879 and note; Stover v. Duren, 3 Strob. L. (S. C.) 448, 51 Am. Dec. 634; Boyce v. Lake, 17 S. C. 481, 43 Am. Rep. 618; De Cordova v. Smith, 9 Tex. 129, 58 Am. Dec. 136; Booker v. Booker, 29 Grat. (Va.) 605, 26 Am. Rep. 401; Jameson v. Rixey, 94 Va. 342, 26 S. E. 861, 64 A. S. R. 726. Notes: 11 Am. Dec. 737; 53 Am. Dec. 734; 18 A. S. R. 883; 54 A. S. R. 8. Chesapeake, etc., Canal Co. v. United States, 223 Fed. 926, 139 C. C. A. 406, L.R.A.1916B 734; Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265, 24 A. S. R. 894; Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758, 54 A. S. R. 592; Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454; Boyce v. Lake, 17 S. C. 481, 43 Am. Rep. 618. 9. Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265, 24 A. S. R. 894. 10. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454. 11. Gulick v. Loder, 13 N. J. L. 68, 23 Am. Dec. 711. to possess and enjoy his own and that an unexplained neglect to enforce an alleged right for a long period casts suspicion on the existence of the right itself,12 because in the ordinary course of human affairs it is not usual for men to allow real and well founded claims to lie dormant a great length of time.18 Such a presumption is not founded simply on belief. It is based on policy and necessity, and is frequently in direct opposition to belief.14 146. Statute of Limitations Distinguished.-The presumption of payment from the lapse of time differs essentially from a statute of limitations which presupposes an established substantive right, but forbids its enforcement by the customary remedies.15 The presumption of payment may be rebutted by sufficient evidence, no matter how long the time may be; but a statute of limitations cuts off the right of action, although it may be admitted that no payment has ever been made.16 A statute of limitations must ordinarily be pleaded and relied on by the defendant,17 while the presumption of payment arising from the lapse of time is usually drawn from the plaintiff's own case, and when so drawn it can hardly be regarded as a matter of affirmative defense.18 147. Nature of Presumption.-As the presumption of payment arising from lapse of time is based on reasons of public policy and social convenience and security, it is a presumption which the courts are bound to draw when the facts are undisputed and undisturbed by conflicting evidence, 19 and its effect is to cast the burden of proof on to the plaintiff.20 It would seem to follow that it should be closed as a presumption of law, though it has been characterized as a pre 12. Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758, 54 A. S. R. 592; Bean v. Tonnele, 94 N. Y. 381, 46 Am. Rep. 153; Gulick v. Loder, 13 N. J. L. 68, 23 Am. Dec. 711. Note: 8 Ann. Cas. 780. 13. Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758, 54 A. S. R. 592; Booker v. Booker, 29 Grat. (Va.) 605, 26 Am. Rep. 401. 14. Boyce v. Lake, 17 S. C. 481, 43 Am. Rep. 618. 15. Chesapeake. etc., Canal Co. v. United States, 223 Fed. 926, 139 C. C. A. 406, L.R.A.1916B 734. 16. Chesapeake, etc., Canal Co. v. United States, 223 Fed. 926, 139 C. C. A. 406, L.R.A.1916B 734; Courtney v. Staudenmayer, 56 Kan. 392, 43 Pac. 758, 54 A. S. R. 592; Booker v. Booker, 29 Grat. (Va.) 605, 26 Am. Rep. 401. 732; 68 A. S. R. 883; 90 A. S. R. 659. 17. See LIMITATION OF ACTIONS, vol. 17, p. 984 et seq. 18. Chesapeake, etc., Canal Co. v. United States, 223 Fed. 926, 139 C. C. A. 406, L.R.A.1916B 734. 19. Alston v. Hawkins, 105 N. C. 3, 11 S. E. 164, 18 A. S. R. 874; Gregory v. Commonwealth, 121 Pa. St. 611, 15 Atl. 452, 6 A. S. R. 804. 20. Beckman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454; Morrison v. Collins, 127 Pa. St. 28, 17 Atl. 753, 14 A. S. R. 827; In re Ash, 202 Pa. St. 422, 51 Atl. 1030, 90 A. S. R. 658. Notes: 18 A. S. R. 879; 64 A. S. R. 732; 68 A. S. R. 883. 1. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454. Notes: 18 A. S. R. 883; 68 A. S. R. Notes: 8 Am. Dec. 311; 64 A. S. R. 883. |