#### WILLIAH K. McKINDER, surviving partner, &c. vs. THOMAS B. LITTLEJOHN, Adm’r of WILLIAM VAUGHN.

Where the attesting witness to a hond is dead, its execution may be proved by proof of the witness’s handwriting; but if such evidence cannot be had, then proof of the obligor’s handwriting is admissible; but before the latter testimony will be received, the party offering the bond for probate, must shew to the court that he has done all in his power, without effect, to procure evidence of the handwriting of the attesting witness. Hence, where it appeared that the subscribing witness to a bond had been clerk of the County Court of a large, populous and wealthy county, and had been dead only twenty-ñve years, it washeldnot to be sufficient for admitting testimony of the obligor’s handwriting, to shew, by one witness only, that'he did not know the subscribing witness’s handwriting, and did not know of any person- who did have such knowledge.

The presumption of the payment of a bond, raised by a forbearance for twenty years, (or for ten years since our act of 1826, 1 Rev. Stat. ch.

65, sec. 13,) may be repelled by evidence, that the debtor had not the means or the opportunity of paying: And the repelling of the presumption will not be hindered by the fact that the debtor had a reversionary interest in certain slaves, hut which did not vest in possession until a short time before the suit was brought, when it did not appear - that the creditor knew of the existence of the reversionary interest, and it was evident, that it was not, in fact, applied to the payment of the debt.

A payment by an administrator of the assets of his intestate to.the next of kin, within less than two years after his qualification, and without taking refunding bonds, will not support the plea of fully administered against a non-resident creditor who has brought his suit within three years from the time when the administration was taken.

The act of 1715, (1 Rev. Stat. ch. 65, sec. 11,) will not operate as a bar to creditors not suing within seven years from the death of the debtor when there is no executor or administrator on the estate of the decedent during that time.

This was an action of debt, upon a penal bond, to which the defendant pleaded non est factum — payment—fully administered generally and specially, and the acts of 1715 and 1789, for the protection oí executors and administrators: and upon the trial at Granville, on the last circuit, the defendant filed the following bill of exceptions:

Be it remembered, that on the trial of the issues joined between the parties in this cause, before the Honorable John *67M. Dick, presiding Judge of the said Court, the plaintiff produced a paper writing, dated the 19th of August, 1811, purporting to be an obligation, and purporting to have been sealed and delivered by the defendant’s intestate, and one John Vaughn, for the penal sum of $3,120:60 cts. to McKinder and White, with a condition underwritten to be void on the payment to the said McKinder and White, of $1,560:-30 cts. on or before the 21st of the same month of August; and it being admitted, by the defendant, that the mercantile firm of McKinder and White consisted of the plaintiff and one John White, who, since the 19th of August, 1811, and before the bringing of this action, had departed this life; whereby the right of action on all demands which had been due to the said McKinder and White had enured to the plaintiffs, the said plaintiff produced as a witness one Thomas Vaughn, who deposed that he was well acquainted with Henry J. Burgess, whose name purported to be'attached as that of an attesting witness to the said paper writing; that he resided in Halifax county, in this State, at and before the year 1811, and was clerk of the county court there for several years, about that period; that he resigned-the said office soon after, and died in the year 1815; that he, (the witness,) had no knowledge of the handwriting of the said H. J. Burgess, except from having examined, within three months before this trial, the records of the county court of Halifax during the time he was clerk thereof, and which records the .witness supposed to have been kept in his handwriting; that the said H. J. Burgess had one brother now surviving him in Halifax, who was not more than fifteen years of age at the death of the said H. J. Burgess; and that witness did not know that his said brother had any acquaintance with the handwriting of the said H. J. Burgess; nor did witness know any one who had such acquaintance with his handwriting; and thereupon the plaintiff’s counsel, insisting that by this evidence he had sufficiently accounted for not offering proof touching the handwriting of the said supposed subscribing witness, proposed to examine the said Vaughn, the witness, as to the handwriting of the said supposed obligors; which was opposed by the defendant’s counsel, but allowed by the Judge; *68and thereupon the defendant excepted. The said witness ^ien deposed that he was well acquainted with the handwriting ofthe defendant’s intestate, and of the said John Vaughn, were fog brothers, having often seen them write; and that he fully believed, from his said knowledge, that the signatures attached to the said paper writing were in the true and genuine hadwriting of the defendant’s intestate, and the said John Vaughn respectively; and thereupon the plaintiff’s counsel prayed the said Judge to admit and allow the said evidence as good and sufficient evidence for the plaintiff on the said issue joined on the first plea of the defendant, and to instruct the jury that the said evidence, if believed by them, was full and sufficient proof in law that the said paper writing was the deed of the defendant’s intestate; and the Judge admitted the said evidence, and gave the said instructions as prayed; and thereupon the defendant excepted. The plaintiff’s counsel thereupon, in order to repel the presumption of payment arising from the length of time, offered to prove, by the said Thomas Vaughn, that at the date of the said obligation, both the defendant’s intestate and the said John Vaughn were entirely insolvent; that the said John was now living in Georgia insolvent, having been so ever since the date of the said obligation; that the intestate, being so insolvent, removed to Tennessee in 1811, and there commenced the practice of medicine; and after remaining there two or three years, removed thence to the State of Mississippi, and continued there until the time of his death, which was admitted by both parties to have been in the year 1819; that he married in Mississippi, andlefha daughter at his death: and that, from time to time, after his removal, until his death, the witness, who was his brother, received letters from him complaining that he continued in low circumstances; that for some years, being affected with a disease which at length caused his death, he was thereby hindered in his practice; and that, in a letter shortly before his death, he commended his daughter to the kind offices of this witness, as he was not in a situation himself to provide for her; to which the defendant’s counsel objected; but the objection was overruled by the Judge, and the evidence offered was received, and the defendant’s counsel *69excepted. And thereupon the said witness, having been amined, and having given evidence in manner and to the effeet aforesaid, although it was admitted by the plaintiff’s counsel, that in 1816,' an uncle of the said intestate had died, and by his will had bequeathed to the said intestate several negro slaves in remainder, after the death of the widow of the said testator, who departed this life in 1833, and the slaves came to the hands of the defendant, as his administrator, in 1835, being then of the value of the plaintiff’s demand, yet the plaintiff’s counsel insisted that, upon this evidence, it should be left to the jury whether they were satisfied, upon the consideration thereof, that both the obligors were unable to satisfy the plaintiff’s demand, from the execution of the bond, and continually afterwards, and if they were so satisfied, to find the presumption of payment repelled; and the Judge accordingly left the evidence to the jury, and instructed them, that if they were satisfied thereby of the contimted inability to pay of both the obligors, from and after the execution of the said obligation, they should find against the defendant on his plea of payment; and to this decision and instruction the defendant excepted. And thereupon the defendant’s counsel, in support of the defendant’s plea of fully administered, admitting that he administered in 1835, and then received nine negro slaves, assets of his intestate, value sufficient to satisfy the plaintiff’s demand, proved that immediately thereafter he advertised for creditors to exhibit their demands as required by law; that at the expiration of one year from his administration, he, having no notice of the plaintiff’s demand, delivered over all the said assets to the next of kin of his said intestate; and although'he had taken no refunding bond from the said next of kin, yet he insisted that, under the circumstances of the case, the plaintiff, as well as his deceased partner, having been always residents and citizens of Virginia, (as was admitted by both parties,) yet if, in paying over the assets to the next of kin, he had acted in perfect good faith, supposing, after the great length of time, that no creditors had any demands, having no notice of the plaintiff’s demand then, nor until more than two years alter his administration — the jury were at liberty to find that the *70defendant had fully administered, and prayed the Judge so to instract die jury; which instruction the Judge refused to give; but, on the contrary, instructed the jury that, inasmuch as ^ defendant had paid over the assets, without the two years delay after his administration required by the statute, and without taking a refunding bond, he had not shewn a full administration; and that therefore the jury ought to find on the said plea for the plaintiff. And the defendant’s counsel, admitting that no administration of the estate of the intestate had ever been granted before November, 1835, within three years of the commencement of this suit, prayed the Judge to instruct the jury to find for the defendant on his fourth plea of the seven years’ bar by the act of 1715, under the facts above stated; which instruction the Judge declining to give, the defendant excepted.

The jury returned a verdict for the plaintiff on all the issues; upon which he had judgment, and the defendant appealed.

Badger, forthe defendant,

in support of the first exception, referred to Jones v. Blount, 1 Hay. Rep. 238 — Barnes v. Trompoivsky, 7 Term. Rep. 261. Upon the 2nd, he cited 2 Stark, on Ev. 310— Willaume v. Gorges, 1 Camp. N. P. Rep. 217. Upon the 3rd, he commented upon the act concerning executors and administrators, 1 Rev. Stat. ch. 46, and referred to the case of Chelsea Water Works v. Cowper, 1 Esp. N. P. Rep. 437. And, in support of the 4th exception, the counsel relied upon McClellan v. Hill, Conf. Rep. 479 — Jones v. Brodie, 3 Murph. Rep. 594 — Hallowell v. Pope, 2 Murph. Rep. 108 — McIntyre v. Carson, 2 Hawks Rep. 544.

Battle, for the plaintiff,

cited and relied upon the following authorities, in support of the Judge’s charge: On the 1st point, note to Clements 6p Co. v. Eason Sp Wright, 1 Hay. 18, (2nd Ed.) — 1 Phil, on Ev. 420, 421, (3 Am. Ed.) Note to Call v. Dunning, 4 East. Rep. 53, (Day’s Ed.) Fitzgerald v. Elsee, 2 Camp. N. P. Rep. 635, and note to that case — Ley v. Ballard, 3 Esp. N. P. Rep. 173 — Jones v. Blount, 1 Hay. Rep. 238. On the 2nd point, Jayne v. Price, 5 Taun. Rep. 326, (1 Eng. C.L. Rep, 121,) — >Oswald *71v. Leigh, 1 Term Rep. 270 — Fladong v. Winter, 19 Ves. Jun. 196 — Matthews v. Smith, 2 Dev. & Bat. 287.

3rd. 1 Rev. Stat. ch. 46, sec." 18 & 19, and ch. 65, .sec. 12, ' Haywood's note to Butts v. Price, Conf. Rep. 68 — Leake v. Gilchrist, 2 Dev. Rep. 73 — Norman v. Baldry, 9 Eng. Con. ch. Rep. 437 — Pearson v. Archdeaken, 1 All. & Napier’s Irish Rep. 23, cited 2 Harrison’s Dig. 1144 — Godley v. Taylor, 3 Dev. Rep. 183— Goodman v. Smith, 4 Dev. Rep. 450.

4th Question. Swann’s Rev. ch. 48, sec. 9; New Rev. ch. 205, sec. 1, 2 &3; ch. 763, sec. 1; ch. 536, sec. 1; Jones v. Brodie, 3 Murph. Rep. 594 — McClellan v. Hill, Conf. Rep. 479 — Godley v. Taylor, 3 Dev. Rep. 183. — Rayner v. Watford, 2 Dev. Rep. 338 — Murray v. East India Company, 7 Eng. Com. Law Rep. 66; 15 Eng. Com. Law Rep. 113 — Webster v. Webster, lOVes. Jun. 93.

Gaston, Judge.

The court is of opinion that the first or the exceptions taken by the defendant in this case is well founded. Rules of evidence, once settled, become rules of law, and cannot be departed from upon theoretic notions of propriety, or the suggestions of expediency. Among these rules, the following, as we believe, are well settled in the country of our ancestors; and we are confident have been regarded as established in this State for the last half century: When the execution of an instrument, attested by one or more subscribing witnesses, is required to be proved, the party propounding it, must call one at least of the subscribing winesses to prove it, or shew that proof, by means of an attesting witness, is not in his power. When this is shewn, the next evidence in the order of proof, is evidence of the handwriting of the subscribing witnesses, or of one of them. — > But if this also be unattainable, then the party producing the instrument is allowed to give evidence of the handwriting of the party by whom it purports to be executed. 1 Stark, on Evid. 320 to 330. Jones v. Brinkley, 1 Hay. Rep. 20—Jones v. Blount, 1 Hay. Rep. 238. Whenever proof of an inferior grade is brought forward, it shall not be received until the court is satisfied that proof, superior in order, is not *72within the power of the party. Now, it is clearly impossiMe Co My down a precise rule of law as to what circumstances must be shewn to convince the court that the party ten-inferior evidence has done his best to procure the superior evidence. If, therefore, in this case, the Judge below had slated on the record, as a conclusion of fact, which he drew from the testimony submitted to him, that it was not in the power of the plaintiff to procure evidence of the handwriting of the attesting witness — or if the circumstances which he has caused to be there stated, were such as would warrant a reasonable inference that this evidence was unattainable. — .we might well hesitate in reversing this judgment. But the case'neither sets forth such a conclusion as having been drawn, nor will it authorise us to presume that it was in fact drawn by his Honor. The attesting witness, when alive, was the clerk of the county court of a large, populous and wealthy county. He had been dead but twenty-five years before the trial. Not an effort was shewn to have been made in the county of the witness’s residence, to procure proof of his handwriting. So far from their being room to presume that witnesses as to the character of his handwriting could not be had, a doubt could scarcely be entertained but that very many such witnesses were to be found, if reasonable, exertions were but used to discover them.

The second exception, in the opinion of the Court, must be overruled. The presumption against a bond, raised from the lapse of twenty years, without a demand by the obligee or acknowledgment of the obligor, is, in one sense, a presumption of law. The law attributes to such lapse of time a technical operation; so that it is the duty of the Court, if no opposing testimony be offered, to advise the jury to find the fact of payment. But the inference to be raised, is an inference of fact. — liable to be attacked, repelled or confirmed by other testimony. And it is the duty of the triers of the fact, allowing to this technical presumption its prima facie force, to find the fact as it may appear upon the proofs. • Now, it seems to us, that upon whatever ground this presumption rests; whether upon the probability of the fact of payment thence arising — or on a principle of policy that would shield men *73from the oppression of claims long negligently forborne — testimony of the kind and to the effect which was offered in this case, was pertinent and in point. — tending directly to encounter the alleged probability, and to account for the seeming negligence. — and therefore fit tobe submitted to the jury, and proper to influence their finding. We have heretofore declared our concurrence in the opinion expressed by Lord Eldon, in Fladong vs. Winter, 19 Ves. Jun. 199, “that the presumption raised by a forbearance for twenty years, may be repelled by evidence that the debtor had not the means or opportunity of paying. Matthews vs. Smith, 2 Dev. & Bat. Rep. 287. Upon further reflection, we entertain the doctrine still; and also, that if such evidence does satisfy the jury that in truth payment has not been made, it is their duty so to find upon the fact in issue. Nor do we think the circumstance relied on by the defendant, is sufficient to withdraw the present case from the operation of this doctrine. The interest in remainder, which the defendant’s intestate had in the negroes bequeathed by his uncle’s will, was, indeed, one which, during the life of his uncle’s widow, might have been applied to the payment of the debt now in suit. But all supposition that it was so applied, is repelled by the fact that all the negroes, upon the death of the tenant for life, came to the possession of the defendant. And so, if it could be brought home to the creditor that he knew of this interest in remainder, an inference of negligence, in forbearing, for so many years, from any effort to subject it to his demand, might be raised against him ; but, as the intestate himself forbore wholly, notwithstanding his necessities, from making any use of this interest, it might be that he was ignorant thereof, and still more probable that these creditors knew not of it. How this might be, was a circumstance fit to be considered by the jury-

We are clearly of opinion that the third exception is unfounded. The delivery of the assets of the intestate, by the defendant, to the next of kin, before the expiration of two years from his qualification, and without taking refunding bonds, is not a legal administration of the assets against a creditor. Undoubtedly there are some few — they are very *74few — requisitions imposed by pur acts of Assembly, upon the ani^ administrators of deceased persons, whichcannot be performed by, and are manifestly inapplicable to, ^ose whose testators or intestates did not reside amongst us. By-a legitimate construction of the acts, so tar, and so fin- only, as these requisitions are impracticable and inapplicable, such executors and administrators are excused therefrom. But, -with this exception, all who here take probate of wills, or obtain letters of administration of the estates of deceased persons, are bound to observe the laws here in force, for the government of executors and administrators.

Upon the last exception, we have felt much perplexity. After every effort, we find it impossible to reconcile to each other the decisions which have been made upon the act of 171-5. (1 Rev. Stat. ch. 65, sec. 11.) The difficülty of admitting any equitable exposition of the act, without a violation of its language, has, at times, caused a strict adherence to its terms. At other times, the shocking injustice resulting from a literal interpretation, has obtained for it an equitable construction, almost in defiance of its words. Under these circumstances, we feel it our duty to consider the latest adjudications as fixing the true principles of the act. Jones vs. Brodie, 3 Murph. Rep. 594, and Godley vs. Taylor, 3 Dev. Rep. 178, have established that the injunction on creditors to make claim within seven years after the death of the debt- or, under the penalty of being utterly barred of any recovery against his estate, does not apply when there is no person in being authorised by law to make the claim — or where the claim itself is in a state not then to be -prosecuted — and these decisions are avowedly made upon the ground that, until there be such a person to make claim, and such a claim as can be prosecuted, there is no cause of action; and the bar of the act of 1715 does not begin to run. Unless this ground be abandoned, it must also be held, that unless there be a person against whom claim may rightfully be made, the bar of the statute does not attach. It is indispensable to the prosecution of a claim, that there should be a person in being, against whom it may of right be demanded, as that there should be a rightful claimant in. existence, to bring it for*75ward; or that the claim be of such a nature as that its performan ce may be demanded. The moment it is established that this act is in the nature of an act of limitations, the bar of which does not begin to run until there is a cause of action, that moment it follows, that the want of a representative of the debtor, as well as of a representative of the creditor, takes the case out of the bar of the statute. Cause of action is the right to prosecute an action with effect; and, legally, a cause of action does not exist, until there be a person in existence capable of suing, and also a person against whom the action may be brought. See Douglas vs. Forrest, 4 Bing. Rep. 686; (15 Eng. Com. Law. Rep. 113,) Murray vs. East India Company, 5 Barn. & Ald. 204; (7 Eng. Com. Law Rep. 66,) Webster vs. Webster, 10 Ves. Jun. 93.

For the error assigned by the defendant, in the first exception, the judgment must be reversed and a venire de novo awarded.

Per Curiam. Judgment reversed.