The burden was upon plaintiff to prove that the last indorsement of interest was made later than October 10, 1867. For that purpose was put in evidence the bond which bore an indorsement dated October 23, 1867, and a witness was called who testified that he made the indorsement on that date. Further ex*615amined, he testified that he received the money, not from the debtor in the bond, but from the obligee, and that he had no personal knowledge of the date when the obligee received the money from the debtor. Upon the question being put to the witness whether the obligee may not at that time have had the money for a month, he answers, “He may have had it a year, for. what I know.” The admission of the obligee that the $87 interest was paid was at that time against his interest, and is therefore competent evidence to prove the payment. Whether a statement of the obligee as to' the time of payment, not being against interest, could be put in evidence, is a different question, but no such statement was made. We are at loss to see that the proof goes any further than to prove that the payment was made at some time on or previous to October 28, 1867. That is manifestly insufficient to remove the bar of the statute.
The interest was due on May 1, 1867, and, if any presumption can be indulged in as to the time of payment, it is probable that payment was made when due. The court below felt the weight of these considerations, but, on the ground that the defendant did not personally offer to testify, gave judgment for plaintiff. We think this was error. If plaintiff desired defendant’s testimony, they should have called him. Where a transaction is so ancient, a witness whose professional experience must have taught him the imperfection of human memory may well hesitate to offer himself as a witness in his own behalf. We do not see that any presumptions should from that be drawn against him.
The court below seemed to consider that the burden was on defendant to prove the payment was not within 20 years. We think that was error. The complaint alleges that the bond and mortgage were executed by defendant to Leveridge and Duryea, “executors of the last will and testament of Bowne, and trustees appointed in and by his last will.” It further alleges that plaintiff has been appointed trustee under the will of Bowne, in place of Leveridge, deceased; and the conclusion of law is alleged that, by the appointment, the bond and mortgage passed to the plaintiff. There is no allegation that the bond and mortgage were an asset of the estate of Bowne. The words “executors and trustees” are only descriptive of the person. There is no allegation that the will established any trust of personal property. The complaint, therefore, failed to state á cause of action in the plaintiff, and the motion made at the opening of the trial to dismiss the complaint should have been granted. The judgment must be reversed; and as the cause, for reasons which have abundantly appeared on the former trials, is not one for which an amendment of the complaint should be granted, final judgment must be given for defendant, with costs.
DYEMAN, J., concurs.