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the admission of nonpayment is accompanied by a refusal to pay; the action is not founded on a new promise, but on the original indebtedness; the question as against the presumption is whether the debt is in fact unpaid. The evidence may consist of the defendant's admissions made to the creditor himself, or to his agent, or even to a stranger, but an admission will not be as readily implied from language casually addressed to a stranger as when addressed to the creditor in reply to a demand for the debt. In those jurisdictions wherein strict proof in rebuttal is required the rule is that so long as the lapse of time is not sufficient to raise the presumption any admissions in conflict with the inference of payment go to the jury along with it, and all are weighed together according to their natural force, but when, by the expiration of full twenty years, the presumption of payment has acquired an artificial force, so that it stands in place of belief, an admission that the payment has not in fact been made cannot of itself destroy the effect which considerations of policy have given to a certain period of time, whether the payment has or has not been made; but it can be rebutted only by a written admission, or at least a clear and well identified promise or admission, intelligently made. And especially after the presumption has arisen an admission simply that it has not been paid will not be sufficient unless it be an admission amounting to an acknowledgment of a subsisting liability like that which would renew a debt barred by the statute. If the admission is accompanied by any conduct or expression indicative of an unwillingness to pay it will not be sufficient to rebut the presumption. While a payment made by one co-obligor will rebut the presumption of payment and be effective against the others, 10 a naked acknowledgment of the debt and a promise to pay it, whenever made and however unqualified they may be, by one obligor cannot bind his co-obligor, and deprive him of the benefit of that presumption which the law makes in his behalf.11

160. Partial Payments.-Part payment of the debt or a payment of interest on it at any time within the period required to raise the presumption of payment will rebut it.12 And it is the generally

4. Gregory v. Com., 121 Pa. St. 611, 15 Atl. 452, 6 A. S. R. 804.

5. Gregory v. Com., 121 Pa. St. 611, 15 Atl. 452, 6 A. S. R. 804.

6. Stover v. Duren, 3 Strob. L. (S. C.) 448, 51 Am. Dec. 634.

7. Beekman v. Hamlin, 19 Ore. 383, 24 Pac 195, 20 A. S. R. 827, 10 L.R.A. 454.

8. Stover v. Duren, 3 Strob. L. (S. C.) 448, 51 Am. Dec. 634; Boyce v. Lake, 17 S. C. 481, 43 Am. Rep. 618.

Note: 88 Am. Dec. 590.

9. Stover v. Duren, 3 Strob. L. (S. C.) 448, 51 Am. Dec. 634. 10. See infra, par. 160.

11. Campbell v. Brown, 86 N. C. 376, 41 Am. Rep. 464.

12. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454; Dickson v. Gourdin, 29 S. C. 343, 7 S. E. 510, 1 L.R.A. 628.

Notes: 18 A. S. R. 883, 887; 1 L.R.A. 628.

admitted doctrine that such a payment made by one obligor in a bond will take the case out of the rule of presumptions as to all his co-obligors. Various reasons have been assigned for thus holding. In some of the cases it is said that a payment is an unequivocal admission of the debt as still subsisting, more reliable than any mere promise, as being more deliberately made and less subject to misconstruction. Again, it is said to be an act which inures to the benefit of all the obligors alike, and of which each one could avail himself, in case he were sued on the bond within the time, and as they might take the advantage of it, so all must be bound by it.18 The correctness of the rule itself has been gravely doubted by some courts of the very highest respectability, and repudiated.14

161. Financial Condition of Debtor.-Evidence of the insolvency or inability of the debtor to pay is admissible to rebut the presumption of payment and may be sufficient to do so alone, 15 or when supported by other facts and circumstances. 16 It is well settled, however, that when insolvency is relied on to rebut the presumption, the creditor must show that it existed during the entire statutory period next after the maturity of the debt.17 But the fact that the debtor was able to pay will not rebut the presumption.18 There is authority for the rule that the presumption is not rebutted by the poverty of the debtor during the time necessary to raise the presumption.19

162. Demands; Nonresidence; Relationship of Parties.-Proof of demands on the part of the creditor and promises to pay on the part of the debtor, if within the period necessary to raise the presumption. is sufficient to rebut it; 20 but a mere demand without more has been declared to be insufficient. So a call for unpaid stock subscriptions. made by a court in a proceeding in which the stockholders, individually, were not parties is held not to be sufficient to rebut the presumption that a subscription was paid. While nonresidence during the period necessary to raise the presumption of payment is compe

13. Campbell v. Brown, 86 N. C. 376, 41 Am. Rep. 464.

C.

14. Campbell v. Brown, 86 N. 376, 41 Am. Rep. 464 (stating rule in New York).

15. Wanmaker v. Van Buskirk, 1 N. J. Eq. 685, 23 Am. Dec. 748; 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; Connecticut Mut. L. Ins. Co. v. Dunscomb, 108 Tenn. 724, 69 S. W. 345, 91 A. S. R. 769, 58 L.R.A. 694.

Notes: 8 Ann. Cas. 780; Ann. Cas. 1913A 509.

16. Connecticut Mut. L. Ins. Co. v.

Dunscomb, 108 Tenn. 724, 69 S. W. 345, 91 A. S. R. 769, 58 L.R.A. 694. 17. Alston v. Hawkins, 105 N. C. 3. 11 S. E. 164, 18 A. S. R. 874.

Note: 18 A. S. R. 885.

18. Morrison v. Collins, 127 Pa. St. 28, 17 Atl. 753, 14 A. S. R. 827 and note.

19. Rogers v. Judd, 5 Vt. 236, 26 Am. Dec. 301.

20. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454.

Note: Ann. Cas. 1913A 509.

1. Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265 24 A. S. R. 894.

tent as tending to rebut the presumption, and when accompanied with other circumstances may do so, still nonresidence alone during the period necessary to raise the presumption is not sufficient. The relationship between the parties may repel the presumption arising from lapse of time that there is no debt, where to exact payment. might have occasioned distress.4

163. Institution of Proceedings by Creditor.-The institution of legal proceedings for the recovery of a debt prior to the lapse of time necessary to give rise to a presumption of payment, and the prosecution thereof with diligence, is strong evidence tending to rebut the presumption; but such proceedings should not be allowed to have this effect if instituted for the sole purpose of repelling the presumption of payment, and not in good faith, with the sincere object of recovering the debt claimed. Evidence of proceedings instituted prior to the ripening of the presumption, though the judgment in such action was void for want of legal service of process, may be used in rebuttal, and although the original action was terminated by reason of defects in the pleading or the form of action pursued, if the creditor commenced a new action within a reasonable time after the termination of the former, although subsequent to the time when the presumption of payment would have been complete, proof of the former action will be allowed to rebut the presumption of payment. There seems to be some conflict in the authorities as to the effect of proceedings instituted after the lapse of time necessary to make the presumption of payment complete. It is held that the failure of a defendant to defend an action or proceeding instituted after the presumption has arisen rebuts the presumption. There is, however, some authority for the contrary view. An action to be sufficient to rebut. the presumption must be directly against the debtor, and it follows, therefore, that an action instituted against a corporation in which the stockholders are not parties individually will not rebut the presumption that a stock subscription was paid after the lapse of the necessary time. Likewise creditors of an estate cannot rebut the presumption that their claims have been paid by showing that proceedings were instituted to close the estate, where they were not made parties, or enjoined from prosecuting their claims. And proceedings instituted on a judgment obtained against one co-obligor cannot be

2. Bailey. Jackson, 16 Johns. (N. Y.) 210, 8 Am. Dec. 309; Alston v. Hawkins, 105 N. C. 3, 11 S. E. 164, 18 A. S. R. 874.

3. Alston v. Hawkins, 105 N. C. 3, 11 S. E. 164, 18 A. S. R. 874.

4. Wanmaker v. Van Buskirk, 1 N. J. Fq. 685, 23 Am. Dec. 748.

5. Beekman v. Hamlin, 19 Ore. 383,

24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454; Allison v. Wood, 104 Va. 765, 52 S. F. 559, 7 Ann. Cas. 721 and note.

6. Allison v. Wood, 104 Va. 765, 52 S. F. 559, 7 Ann. Cas. 721 and note. 7. Note: 7 Ann. Cas. 723, 724.

8. Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265, 24 A. S. R. 894.

used as evidence tending to rebut the presumption arising in favor of the other. The question has often arisen whether the institution of proceedings that are not strictly actions will rebut the presumption of payment arising from the lapse of time. Generally the institution of proceedings subsequent to judgment, for the purpose of enforcing the judgment, will be effective to rebut the presumption; 10 but the mere ex parte acts of a judgment creditor, in which the debtor has no part and of which he is not notified, will not tend to rebut the presumption of payment.11

164. Pleadings of Parties.-The mere allegation on the part of the plaintiff that no portion of the debt had ever been paid will not suffice to rebut the presumption of payment; otherwise, there would be no use of a presumption of payment resulting from lapse of time.12 But a plea of payment entered by the defendant and supported by proof will rebut the presumption, for the whole theory of presumptions arising from the staleness of the claim is based on the absence of proof bearing, in the one or the other way, directly on the subject.13 It has been held that if an affidavit of defense, in a proceeding to revive a judgment more than twenty years old, affirmatively sets up the defense of presumption of payment from lapse of time, an additional averment therein that the defendant has not made any "new promise nor paid any money on account of said judgment" does not rebut the presumption of payment. It should be regarded as the negation of any obligation arising from a payment on account, and not as a declaration that the whole debt is due because none of it has been paid.14

XIII. RECOVERY OF PAYMENTS

Voluntary Payments

165. In General.-It is a universally recognized rule that money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered back on the ground that the claim was illegal,15 or that

9. Note: 7 Ann. Cas. 724.

15. Hamilton v. Dillin, 21 Wall. 73,

10. Notes: 1 L.R.A. 628; 7 Ann. 22 U. S. (L. ed.) 528; United States Cas. 724.

11. Note: 7 Ann. Cas. 724. 12. Hummel v. Lilly, 188 Pa. St. 463, 41 Atl. 613, 68 A. S. R. 879.

13. Adair v. Adair, 5 Mich. 204, 71 Am. Dec. 779; Connecticut Mut. L. Ins. Co. v. Dunscomb, 108 Tenn. 724, 69 S. W. 345, 91 A. S. R. 769, 58 L.R.A. 694.

14. Hummel v. Lilly, 188 Pa. 463, 41 Atl. 613, 68 A. S. R. 879.

St.

v. Wilson, 168 U. S. 273, 18 S. Ct. 85, 42 U. S. (L. ed.) 464; United States v. Edmondston, 181 U. S. 500, 21 S. Ct. 718, 45 U. S. (L. ed.) 971; Rector v. Collins, 46 Ark. 167, 55 Am. Rep. 571: Brumagin v. Tillinghast, 18 Cal. 265. 79 Am. Dec. 176; Beecher v. Buckingham, 18 Conn. 110, 44 Am. Dec. 580 and note; Cobb v. Charter, 32 Conn. 358, 87 Am. Dec. 178; Kimpton v. Studebaker Bros. Co., 14 Idaho

there was no liability to pay in the first instance, 10 though the payer makes the payment expressly reserving his right to litigate his claim,17 or under the impression that the demand was legal.18 So it has been held that where one pays a part of a claim and in a suit to recover the balance it is decided that there was no liability he cannot recover the part originally paid.19 The rule applies not only as between individuals but also to cases in which one of the parties is the govern

552, 94 Pac. 1039, 125 A. S. R. 185, N. W. 922, 44 A. S. R. 529; Peters v. 14 Ann. Cas. 1126; Illinois Glass Co. Marietta, etc., R. Co., 42 Ohio St. 275, v. Chicago Telephone Co., 234 Ill. 535, 51 Am. Rep. 814; Carson v. McFar85 N. E. 200, 18 L.R.A. (N.S.) 124; land, 2 Rawle (Pa.) 118, 19 Am. Dec. Ligonier v. Ackerman, 46 Ind. 552, 15 627; Morris v. Tarin, 1 Dall. (Pa.) Am. Rep. 323; Ellsworth v. Randall, 147, 1 U. S. (L. ed.) 76, 1 Am. Dec. 78 Ia. 141, 42 N. W. 629, 16 A. S. R. 233; Taylor v. Board of Health, 31 425; Hubbard v. Hickman, 4 Bush Pa. St. 73, 72 Am. Dec. 724; Pepper(Ky.) 204, 96 Am. Dec. 297; Worsley day v. Citizens' Nat. Bank, 183 Pa. v. New Orleans Second Municipality, St. 519, 38 Atl. 1030, 63 A. S. R. 769, 9 Rob. (La.) 324, 41 Am. Dec. 333; 39 L.R.A. 529; Robinson v. CharlesNew Orleans, etc., R. Co. v. Louisiana ton, 2 Rich. L. (S. C.) 317, 45 Am. Constr., etc., Co., 109 La. 13, 33 So. Dec. 739; Kenneth v. South Carolina 51, 94 A. S. R. 395 and note; Balti- R. Co., 15 Rich. L. (S. C.) 284, 98 more, etc., R. Co. v. Faunce, 6 Gill Am. Dec. 382 and note; Hardaway v. (Md.) 68, 46 Am. Dec. 655 and note; Southern R. Co., 90 S. C. 475, 73 S. E. Lester v. Baltimore, 29 Md. 415, 96 1020, Ann. Cas. 1913D 266; Boyd v. Am. Dec. 542; Schwarzenbach v. Anderson, 1 Overt. (Tenn.) 438, 3 Odorless Excavating Apparatus Co., Am. Dec. 762; Leach v. Cowan, 125 65 Md. 34, 3 Atl. 676, 57 Am. Rep. Tenn. 182, 140 S. W. 1070, Ann. Cas. 301; Jordon v. Phelps, 3 Cush. (Mass.) 1913C 188; Flock v. National Bank of 545, 50 Am. Dec. 747; Benson v. Mon- Commerce, 8 Utah 193, 30 Pac. 746, roe, 7 Cush. (Mass.) 125, 54 Am. Dec. 17 L.R.A. 583; Gilson v. Bingham, 43 716 and note; Wyman v. Fiske, 3 Al- Vt. 410, 5 Am. Rep. 289. len (Mass.) 238, 80 Am. Dec. 66 and note; Regan v. Baldwin, 126 Mass. 485, 30 Am. Rep. 689; Joannin v. Ogelvie, 49 Minn. 564, 52 N. W. 217, 32 A. S. R. 581, 16 L.R.A. 376; Claflin v. McDonough, 33 Mo. 412, 84 Am. Dec. 54; Evans v. Gale, 17 N. H. 573, 43 Am. Dec. 614; Boutelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 152; Decker v. Adams, 28 N. J. L. 511, 78 Ám. Dec. 65; Camden v. Green, 54 N. J. L. 591, 25 Atl. 357, 33 A. S. R. 686; Waite v. Leggette, 8 Cow. (N. Y.) 195, 18 Am. Dec. 441 and note; Howes v. Barker, 3 Johns. (N. Y.) 506, 3 Am. Dec. 526; Hall v. Shultz, 4 Johns. (N. Y.) 240, 4 Am. Dec. 270; Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Simms v. Vick, 151 N. C. 78, 65 S. E. 621, 18 Ann. Cas. 669, 24 L.R.A. (N.S.) 517; Wessell v. D. S. B. Johnston Land, etc., Co., 3 N. D. 160, 54

Notes: 19 Am. Dec. 135; 27 Am. Dec. 489; 94 A. S. R. 409, 423; 8 U. S. (L. ed.) 301; 33 U. S. (L. ed.) 346.

And see ASSUMPSIT, vol. 2, p. 784. 16. Baltimore, etc., R. Co. V. Faunce, 6 Gill (Md.) 68, 46 Am. Dec. 655; Schwarzenbach v. Odorless Excavating Apparatus Co., 65 Md. 34, 3 Atl. 676, 57 Am. Rep. 301; Claflin v. McDonough, 33 Mo. 412, 84 Am. Dec. 54; Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Leach v. Cowan, 125 Tenn. 182, 140 S. W. 1070, Ann. Cas. 1913C 188.

17. Bulkley V. Stewart, 1 Day (Conn.) 130, 2 Am. Dec. 57; Mowatt· v. Wright, 1 Wend. (N. Y.) 355, 19 Am. Dec. 508.

18. Baltimore v. Lefferman, 4 Gill (Md.) 425, 45 Am. Dec. 145. ́

19. Fuller v. Shattuck, 13 Gray (Mass.) 70, 74 Am. Dec, 622 and note.

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