Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-04-26
Washington County

Washington County
The rescript in the Washington county
case of Edward L. Talbot admr. VS..
James E. Hathaway and trs.. is self ex-
planatory and follows:
Edward E. Talbot, admir- VS.. James f.
Hathaway and trs.
Rescript, King, j.
The case comes up on report. 1t is an
action by the administrator de bonis non
with the will annexed of the estate of
Ursula NJ. Penniman, late of Machias,
Maine, to recover sums alleged to have
been paid by her as surety for, the de-
PENDANT on two promissory notes, one
dated July 10, 1865, for 500 payable lin
October next with interest,"" and the
other dated duly Ii, 1866 for 500 payable
lin one year from date with interest
Miss Penniman, the decedont, was the
PENDANTS aunt. She died March 3rd, 1898.
The notes in question were i'll her possess
sion at the time of her death, were in
cluded in the inventory of her estate filed
by her first administrator, and came in
to the possession of the plaintiff as her
administrator de bonis non.
The defendant has resided continuously
out of the State of Maine since the au-
tumn of 1866 His plea is the general
issue and the statute of limitations. He
offered no evidence, except his deposition
taken in the state of Washington.
Held:
/. The defendant was disqualified as a
witness to facts happening before the
death of the testator, because the plain
tiff in prosecuting the suit as an admin
istrator, and that objection was raised
both at the taking OF the deposition and
at the trial, r. S. Chap. 81, Sec. 115.
2. The plaintiff offered in evidence a
memorandum on the back of each note,
in the handwriting of the decedent, TO
the effect that she paid the note. We
find no authority for the admission of
those entries. The fact that they Were
written on the back of the notes instead
Of one separate paper or private book is
immateral. They are nothing more than
private memoranda made by the surety
herself in her own favor. A party is not
permitted to introduce such entries made
by himself in support of his own case.
3. Where a promissory note has been
negotiated, and afterwards is found in
the possession of one of the parties liable
to pay it, such possession is prima facie
evidence of such payment by that party
as entitled him to the possession Of the
note, and he is to be treated as the bona
fide holder thereof, unless the contrary
is made to appear.
4. The possession of the notes by the
decedent at the time of her death I'M
explained is presumptive evidence that
she paid them in her capacity as surety
and had not been repaid.
5. The fact that the defendant has re-
sided continuously out of the State since
the latter part of the year 1865 renders
unavailing his plea of the statute of
limitations because the time of his alb
sence from the State is not to be taken
as a part of the time limited for the
commencement of the action. r. S.
Chap. SO, Sec. LOG.
8. The presumption of payment arising
from the lapse of time is a matter of
evidence. 1t Is the presumption of a
fact, and may be rebutted by evidence OF
other facts and circumstances tending to
show non-payment or sufficiently &C
counting for the delay of the creditor
The presumption may be repealed by any
facts which destroy the reason for it.
Nor is 1t essential that the evidence to
rebuff the presumption. should contain
any new promise on the part of the
debtor or positive act of unequivocal
recognition Of the debt by him within
the period. And the court is constrained
to the conclusion that the facts and cir
cumstances appearing in this case are
sufficiently strong to repel the presump-
ton arising from lapse of time that the
defendant paid the decedent the &C
counts she paid as his surety on the
notes.
Z. Where partial payments appear to
have been made on note before its ma
turity we think the prima facie presump-
ton is that they were made by the maker
rather than by the surety.
s. 1t is therefore the opinion Of the
court that the plaintiff is entitled to judy
ment for the amount due on botA notes
the defendant to have the benent of the
partial payments that appear to have
been made before the maturity of the
notes.
So ordered.