Jones v. . Benbow

Citations

• 29 S.E. 774
• 122 N.C. 508
• 1898 N.C. LEXIS 293

Syllabus

<p>Action on Note — Presumption as to Payment — Evidence —Exceptions.</p> <p>1. Where plaintiffs’ testator, J, held notes payable to B as collateral security for B’s note to J, and one of the notes was paid by the maker to B while J still held it as collateral, the fact that J afterwards surrendered it to B does not raise the presumption that B had paid the amount of such note to be applied on his note to J.</p> <p>2. Where on the trial of an action on a note it appeared that plaintiffs’ testator held notes of W, payable to B as collateral for the note in suit, and W testified that decedent told him he held notes of §500 against him, which defendant had deposited with him, the decedent, to which witness had replied that he owed §400 on the notes, as he had paid 8100 to the defendant, and he further testified that the §100 had afterwards been paid to decedent; Held, that the evidence of W was not such as should have been submitted to the jury as proof of payment on the note, since it barely amounted to even conjecture of payment.</p> <p>3. Where there is no exception to a judgment at the time of its rendition, it will not be considered on appeal.</p>