
    Rogers vs. Kincannon.
    Í. A pica of payment admits the execution of the note, bond or bill single, as described in the declaration.
    2. In an issue on a plea of payment to a lost note or bond, the defendant cannot introduce proof of a variance between the altedged lost note or bond, and the note or bond described in the declaration.. ¥
    3. Where a suit was brought on a lost bond, and the defendant relied on the presumption of payment raised by the lapseof time, and theplaintiff introduced a witness to relate a conversation witness had with the defendant in relation to said bond, to repel the presumption of payment: Held, that the defendant had the right to prove by said witness, that the conversation was had not in reference to the instrument described in the declaration; and this, for the purpose of impairing the force of plaintiff’s testimony.
    M. C. Rogers instituted an action of debt in the circuit court of Bradley comity, on the 6th day of December, 1838, against John Kincannon.
    The declaration sets forth that John Kincannon, and one George Kincannon (not sued in the action) executed and delivered to the plaintiff their writing obligatory on the 26th day of January, 1821, hearing date that day, by which they promised to pay the plaintiff one day after date the sum of $169 21| for value received. The declaration avers that “plaintiff cannot produce in court the said writing obligatory, the same being lost or unintentionally mislaid, an affidavit of which by the plaintiff is here produced in court, attached to this declaration as required by the act of assembly,” (Act of 1819, ch. 27, N. & C. 447.) This affidayit is as follows: “M. C. Rogers makes oath that John Kincannon and George Kincannon, executed and delivered to affiant their writing obligatory for the payment of the sum of $169 21f, dated the 26th day of Januaiy, 1821, and due one day after date for value received, which writing obligatory, affiant declares has been lost or unintentionally mislaid so that he cannot find it or produce it in court. Affi-ant further states that he has not sold, bartered, or transferred by himself or any other person, said writing obligatory to any person or persons whatever,”
    The defendant pleaded that he paid the debt in the declaration mentioned on the day the same fell due. On this plea issue was joined. After repeated continuences, at the August term, 1841, ibis issue was submitted to a jury, Keith, judge, presiding. The plaintiff having' read his declaration and affidavit to the jury, then called one Huffaker, who stated that in 1827, a'bill single was enclosed in a letter to him to present to John Kincannon -for payment. Thereupon the counsel of defendant asked witness to describe the instrument thus inclosed. Witness stated that it was of unusual length, and that there was a writing underneath it. ' To this statement the counsel for the plaintiff objected as incompetent, as a variance could not be shown in that way. This objection was sustained and the statement excluded. The witness was then directed by the court to .state the conversation which took place when the instrument was presented to the defendant. Witness then stated that when he presented it to defendant, he said that there were conditions in it which plaintiff had never complied with, and he had therefore never paid it, and never intended to do so. Witness handed it to defendant. There was no such condition in it as that stated by the defendant. Witness further stated, that his understanding derived either from’ the conversation or the instrument, was that it was not payable in the lifetime of George Kincannon, that he had heard defendant say, he had offered a horse or would give a horse, rather than have a suit about it, that he heard Kincannon say that Rogers had lost the note and that he understood it to be the note sued on; that he returned it to F. Gallespie, and that Gallespie has lost it.
    F. Kincannon testified that he saw an instrument of writing signed by John and George Kincannon, and that it had conditions in it.
    The counsel for the defendant insisted that the admission, that the defendant has not paid a conditional note, was not sufficient to remove the presumption of payment arising from lapse of time.
    The court charged the jury that sixteen years having elapsed after the writing obligatory fell due before suit was instituted thereupon, the law raised a presumption that it had been paid; that the conversation which took place at the time it was presented, was competent evidence for either party; that it was for the jury to determine whether the conversation alluded to, removed the presumption of payment afforded by the lapse of time; tlrat if any condition or conditions were attached to the instrument, such condition or conditions should have been pleaded and could not be regarded by them in the formation of their verdict. That they must determine from the evidence whether the writing obligatory had been paid. The jury returned a verdict for $169 21f debt, $209 18 damages.
    The defendant moved the court for a new trial, and this motion having been overruled, the defendant appealed in error.
    
      Trewhil, for plaintiff in error.
    
      Van Dylce, for the defendant in error.
   Reese, J.

delivered the opinion of the court.

The plaintiff sued the defendant to recover the amount of a lost bond. The defendant pleaded payment. In the declaration, and in the affidavit annexed, the bond sued on is described as having been made more than sixteen years before the suit was brought, and the defendant relied upon the presumption of payment arising from the lapse of time to sustain his plea. The plaintiff to repel this presumption, called a witness to prove that while the bond was still in existence, the plaintiff transmitted it to witness, who presented it to the defendant, and the witness detailed a conversation with defendant which then took place, tending to repel the presumption insisted on.

The counsel for the defendant sought to prove by the witness that the bond presented by him to defendant was a different one from that decribed in the declaration and affidavit annexed. This proof the court refused to permit to be made. If the object of the counsel were by this attempt to establish a variance between the note or bond described in the declaration and that spoken of by the witness, to defeat the plaintiff’s action, upon the ground that he had misdescribed the bond in his declaration, such object would have been improper, and for such a purpose the proof could not have been heard, for the plea of payment admits that the bond as described in the declaration once existed. This may have been the purpose of counsel: the circuit court evidently so understood it. But as the point arises upon the record here, we are constrained to say that the defendant had a right, for the purpose of impairing or destroying the force of the testimony brought forward by the plaintiff in order to repel the presumption of payment arising from the lapse of time, to show if he could that the conversation of the defendant with the witness related to another and different bond. We regret the necessity of reversal imposed upon us in this case, because it is very probable that justice has been attained and that another trial after some delay and expense will result in the same manner.  