Miller v. Overseers of Poor

William W. Porter, J., dissenting:

To affirm the judgment in this case would be to carry the doctrine of presumption of payment far beyond any application yet given to it by the reported precedents so far as they are known to me. It would be to give it the effect of a statute of limitations. In this case the judgment, was more than thirty years old and both the plaintiff and the defendant were persons in being at the time of the trial. The burden was upon the plaintiff to show nonpayment by clear proof. He testified positively, clearly and without contradiction of any kind and without doubt being thrown upon his veracity that the judgment had not been paid at the time of trial. He says in the examination in chief: “No part or parcel of it has been paid.” Again: “ Q. Do you swear positively, without any equivocations, that this claim was never paid to you or to any agent or attorney for you? A. Yes, sir. Q. You are sure of that? A. Yes, very sure.” This testimony is supplemented by showing de *165 mand made from time to time on the defendants. The court below nonsuited the plaintiff on the ground that the presumption of payment was stronger than his positive testimony. I cannot concur in this application of the doctrine.