
    James Gibson v. David Peebles.
    Receipts upon a note to take it out of the statute of limitations, if appall-' ently fair, and not attended with circumstances calculated to excite suspicion that they were endorsed for the purpose of talcing1 the case out of the statute, ar a prima fade evidence of payment, and are to be left to the jury.
    'Pried before Mr. Justice Colcock, Sumter Court, Spring Term, 1823.
    THIS was an action on a note of hand for $ 400, dated the 5th December, 1815, and payable on the first January following. On the back of the note there were two receipts, dated 14th May, 1817. The one for $300, and the other for fifty dollars. To this, there was a plea of the statute of limitations.
    Replication — payments made.
    On the part of the defendant, it was urged that the rebeipbwas not of itself su'lficicni to take the case out of the Statute, that there must be some positive evidence of the payment; and it was said the case had been decided by the case of executors of Leonard Taylor vs. Roderick Mc« 
      
      Donald, (1 Con. Sep. 178. J Tbe plaintiff replied that the receipt, if apparently fair, and not attended with any circumstances which were calculated to create a suspicion that they were endorsed for the purpose of taking the ease out of the operation of the statute, was prima facie evidence of payment, and must be rebutted by the defendant. That the case relied on, was one in which it is acknowledged that the receipt was a fictitious one, written by the defendant himself on the account, after it had been barred by the statute, and of course admitted of no doubt, The presiding Judge submitted it to the jury as a fact for their consideration, with directions that if they were satisfied the payments had been made, they should find for tkíplaintiff; but if they believed as in the case cited, that they were endorsed for tbe purpose of taking the case out of the statute, they should find for the defendant. He expressed an opinion, however, that there was no ground on which they could found such a belief.
    The jury found a verdict for the plaintiff for the amount of the balance of the note and interest; and a motion was now made for a new trial, on the grounds,
    1st. Because a credit written on the back of a note is not sufficient evidence to take a case out of the statute of limitations without some other proof of payment.
    
      2nd. Because the verdict was in other respects 'contrary to law and evidence.
   Mr. Justice Colcock

delivered the opinion of the court:

The decisions of the court on this subject, have been certainly misunderstood. It is the usual mode of conducting business in this country, for creditors to endorse receipts for all monies paid by their debtors on their vouchers, and this is most obviously for the benefit of the debtors. The receipt accompanies the evidence of the debt, and so long as the one is preserved, the other is secured. It is not said that such receipt is to be conclusive on the rights of the parties. It is a circumstance on wjhiGh the presumption of payment may be raised, and if is to bo submitted to the jury. If there be nothing to induce a belief that the receipt is not a fair one, the jury ought, and no doubt will, always presume that the payment was made. If there be any such circumstances, they can be urged by the defendant, and if the payment was not made, there will be always some circumstances on which, to raise a presumption of fraud. It is asked if the court will permit aman to make evidence for himself? this is ■peiitip 2rrincipii.

Carter, for the motion.

Jilolmes, confra.

The defendant may as well ásk, will the court permit aman to take advantage of his own wrong? Now the whole question is, was the payment made ? If so, it is not permitting a man to make evidence for himself, but it would be permitting one to take advantage of lhs own wrong, to suffer the defendant to deny the payment. Here lbs note was for $400, and the receipts bore data within two yeans after, and were for $ 350, leaving a balance of principal, of only $ 50 ; and on examination of the note, there is every appearance of fairness. The case relied on is the very opposite of this. The demand was on open account. It is not usual for receipts for partial payments to be made on the back of accounts. The receipt was for a small sum, and dated after the demand was barred. In a word, the Judge who decides the case, says ■expressly, and to take h out of the statute, the plaintiff’s testator himself, had given a credit for a payment which the defendant knew nothing of.” In such a case, the plaintiff’s argument, that a man ought not, to be permitted to make evidence for himself, would well apply. The court are unanimously of opinion that the question was properly submitted to the jury.

The motion is therefore dismissed.  