
    
      Lenox v. Greene & others.
    
    This was an appeal from the decision of the Superior Court of Craven, overruling a motion for a new trial made by the plaintiff, on the following grounds, viz. a verdict against evidence, without evidence, and an erroneous charge of the Court.
    This action was brought against the defendants as sureties of William Henry, Sheriff of Craven County, for breach of his official bond. On the plea of performance, the issue to be decided, turned wholly on the fact,—Whether a judgment recovered by John Lenox against Benjamin Williams, and which had been collected by Henry, under execution, had been paid to Lenox or not? The judgment of Lenox against Williams was for one hundred pounds in an action of assault and battery.
    The execution issued from Salisbury Superior Court, tested the 2d October, 1793, and was returnable to the 19th March, 1794. On this execution the sheriff made two returns, which were in the following words, viz.
    
      “ Satisfied in full.—Wm. Henry, Sheriff.” Also—“ Judgment paid plaintiff.—Wm. Henry, Sheriff.”
    
    The defendant produced a receipt, in the following words :
    " Received of William Henry, Esq. Sheriff of Craven County, 511. 11s. 2d. by the hands of William Slade, in full, for the costs of a suit recovered in Salisbury Superior Court, at the instance of John Lenox against Benjamin Williams, Esq. together with the execution issued on said suit.
    “ MONTFORT STOKES, Clk. Sup. Court Law.
    
    
      “ Newbern, 20th July, 1794.”
    William Henry died in the fall of 1799. No demand was shewn to have been made by Lenox until the fall of 1809, when a claim was preferred against the securities, and in the June following the present suit was brought. John Lenox has been, since 1794, and yet is, a resident of Rockingham County. The defendants are residents of Craven County. Montfort Stokes was at Newbern, in Craven County, at the date of the receipt, as a Clerk of the State Legislature, then sitting at Newbern.
    The Court instructed the jury that they were at liberty to, presume, from the lapse of time, and the circumstances herein stated, that the judgment was paid—And the jury found a verdict accordingly.
    The cause was argued by
    
      Gaston for the plaintiff, and Mordecai for the defendants.
   Taylor, C. J.

delivered the opinion of a majority of the Court.

The jury have presumed a payment of this judgment after a lapse of something more than fifteen years, of which Henry, the sheriff, was alive only about five; and in aid of the presumption, arising from length of time, other circumstances, are relied upon, as that Henry returned the execution, with two indorsements, one of which stated, that it was satisfied in full, the other, that he had paid the amount of the judgment to the plaintiff. In addition to these circumstances, the defendants relied upon a receipt, signed by the Clerk of Salisbury Superior Court, for the amount of the costs,—upon the non-production of proof by the plaintiff, of any demand made by him till the fall of 1809, and upon the fact of his residence in Rockingham County since 1794, and the defendants’ in Craven County. It also appears that the Clerk of Salisbury Superior Court was in Newbern, at the period his receipt bears date.

These circumstances, it is said, fortify and support the presumption arising from the length of time, (which is admitted not to be alone sufficient) and completely justify the finding of the jury.

But we do not perceive in any of these circumstances, taken singly, nor in all of them together, that weight and conclusiveness, which ought to exist, before a man is deprived of a debt due by the high evidence of a record.

Presumptive evidence ought not to rest upon conjecture, and surmise—it must be built on a solid foundation. A legal presumption does not arise because probability preponderates on one side, rather than on the other—it is created only then, when the circumstances are such, as to render the opposite supposition improbable; and when we are about to defeat a right, the presumption ought to be stronger, than when it is to be supported.-Cowper 216.

The sheriff’s return is his own act, and considered as evidence per se, it cannot be introduced in favor of himself or his securities—it is evidence only against them. It might, in connection with other circumstances, become evidence against the plaintiff—if, for example, he had seen it a long time since and acquiesced in it, it might be supposed that he knew its truth. But this important fact, instead of being proved, is supposed—this essential link in the chain of circumstances is deficient. But why should it be supposed that the plaintiff saw this return? The time when he would most probably have looked for the execution was, when it was returnable, and ought to have been returned. That was at March Term, 1794, but instead of being returned then, it was delivered to the Clerk at Newbern, in July, 1794, as appears by his receipt. And even if the return had been made in due time, the probability of its having come to the knowledge of the plaintiff, must depend upon many circumstances, not proved, and which the jury had no means of ascertaining,—upon the degree of attention usually paid by the plaintiff, to his affairs, upon his condition, wants, and vigilance.

The facts from which a presumption is deduced, ought to be consistent with the proposition which they are intended to establish. Here the proposition intended to be maintained is, that Henry paid the plaintiff his debt—but a fact proved is, that he did not pay the costs, an incident to the debt, when they ought to have been paid; and then not at Salisbury, but at Newbern, where the Clerk personally met him. Now, if the effect of a presumption, in serving as a proof, depends on the justness of the consequences, drawn from certain facts, to prove others which are in dispute, should we not lose sight of the principle, in presuming punctuality in that part of a transaction which we cannot see, when we are furnished with positive proof of delinquency in that part which we do see ? As, therefore, we are not apprised of any adjudication where the jury have been left to presume payment even of a bond, after the lapse only of fifteen years; and as the circumstances here proved do not, in our conception, aid the time, we think a new trial should be granted.

Henderson, J.

I do not concur in the opinion of the Court. It is not contended by me, that a presumption of payment arises, short of a period of twenty years, where there were no circumstances to aid the presumption; but if there were, it was properly left to the jury to presume a payment, although twenty years had not elapsed. It was the province of the Court to see that those circumstances were relevant,—and of the jury, to give them their due weight;—and the Court, in this case, can grant a new taial, only in case the Court or jury erred in discharging their respective duties. That the plaintiff caused an execution to issue—that the execution was returned with an indorsement of satisfaction, and the money paid to the plaintiff—that the plaintiff lived not more than seventy miles from Salisbury, where the execution was returned—that he took no further steps during the life of the sheriff, to enforce the payment—that the sheriff died in the year ,—were, certainly, all relevant circumstances. That the plaintiff had a knowledge of the return of the execution, or that the return was true, was a fair inference made by the jury; for we can scarcely believe, that a man who had prosecuted an action to judgment, and recovered one hundred pounds, and caused an execution to issue, and to be delivered to the sheriff at the distance of two hundred miles, would, at once, remit his exertions and abandon his claim for fifteen years—so, take it either way, it affords a strong presumption that the sheriff’s return was true. It is farther observable, that the execution was returned to the Court of the district in which the plaintiff continued to reside. It is said that this is permitting the sheriff to create evidence for himself; but it is not the sheriff’s act, but the conduct of the defendant, which raises the presumption—it is like an assertion, made in the presence of a man, of a fact within his knowledge, and affecting his interest, and not contradicted by him. There are other circumstances in the case, but I deem those already mentioned sufficient. I therefore think it not barely such a verdict as ought not to be disturbed, but such as the law and justice of the case require.  