
    Lyon Levy vs. Wade Hampton.
    Twenty years without any payment or acknowledgment, will, raise the presumption of the payment of a bond; but even then the presumption may be rebutted by any circumstances which will tend to shew that it was not paid. Less than twenty years, with other circumstances going’ to show that there was payment, maybe sufficient. 
    
    The Court of law can make no distinction,between-two-joint obligors; where there is no distinction made in the bond itself.
    A bond bearing interest from a period anterior to its date, is not usurious.
    A co-obligor is not like an indorser, absolved from liability by the negligence of the obligee, although he may be only a security; for the • common law makes no difference between co-obligors; they are both absolutely and unconditionally liable.
    HdCHLAND district. — Spring Term, 1821. Tried before Mr. Justice Gantt.
    
    This was an action on a bond, bearing date 2nd January, 1802, payable in 1802 and 1803, signed by the defendant and John Bostick, for the payment of six hundred mid forty-nine dollars and 97 cents. It appeared in evidence, that on the 27th July, 1812, Bostick was sued on this bond, and that judgment was obtained on the 10th May, 1815. Ail execution was issued on the 10th May, 1815, ünd a second execution on the 7th Fehruary, 1818. The defendant’s signature was proved, and that Bostick was solvent until 1814. The land for which the bond was given was sold by Bostick. And it was alleged that the mortgage given by Bostick to procure the payment of this money, was not recorded by the treasurer. The condition of the bond recited that it was given for a tract of land, and that the sum was to be paid with interest, from a period anterior to the date of the bond.
    The defendant pleaded non est factum, payment and usury.
    Nothing was said on the first pléa, as the bond was proved. On the second plea it was contended :
    . 1st. From the lapse of time between the date of the bond and this suit, payment should be presumed.
    2ndly. That the defendant was security to Bostick, and ' that the negligence of the public officer to record the mortgage had destroyed a fund which would have been appropriated to the payment of the bond, and the relief of the defendant. That that circumstance, together with the long indulgence to Bostick, was a want of diligence which should exonerate the defendant from his liability to pay the bond. And on the third plea, it was contended that an agreement to pay interest from a time anterior to the date of the bond was in effect to secure the payment of more than seven per cent, per annum.
    The jury found a verdict for the defendant, and a motion was now made to grant a new trial, because the verdict was contrary to law.
    
      
      
         See the cases collected in 1 Nott & M'Cord, 167.
      
    
   Mr. Justice Colcock

delivered the opinion of the Court..

On the first plea nothing need be said. As to the presumption of payment arising from lapse of time, the doctrine is .well settled. Twenty years without any payments, will raise the presumption of payment; but even then the presumption may be rebutted by circumstances which will tend to shew that it was not paid. A less time, with other circmrv stanc.es, going to shew that there was payment, may be sufficient. Now as to time alone, there were about IT years between the time when the bond became due, and the action against this defendant. The time alone then is not sufficient. Are there any circumstances to induce a belief of payment? None ; but on the contrary the most conclusive to shew that the bond never was paid. The suit against Bostick, the defendant co-obligor, with the sheriff’s return on the execution, and the general belief of his insolvency, all shew that the bond was not paid. The verdict then as to this ground is contrary to law.

On the second ground of argument, that defendant is discharged by the laches of the plaintiff; I know no means by which a court of law can distinguish between the responsibility of the obligors to a bond, where no distincti- • on is made in the bond itself; and here there is none. If it be a fact that the defendant was only a security, and that the mortgage not being recorded, enabled the principal, Bostick, to dispose of the land, and if it be also a fact that the defendant has sustained an injury thereby, it may furnish a. ground of relief in another court, but it cannot avail him here; for we have no means of enquiring into those facts. We cannot call upon a defendant to say whether he has not been long ago indemnified. As for the parallel which is attempted to be drawn between the situation of the defendant and an indorser, it cannot hold; for in the one case the party is absolutely7 and unconditionally bound, in the other he is only responsible on the happening of a contingency, with which, when it does happen, he must be made acquainted. An indorser, then, if not called on when a bill falls due, may reasonably conclude that it has been paid. Not so with the obligor'to a bond. If he wishes to avoid the consequences of the insolvency of his co-obligor, diligence must be exercised by him.

As to the plea of usury, it is sufficient to observe, that nothing is more common or more just than that a bond which is given some time after a purchase made, should bear interest from the time of purchase ; and there is no > thing to shew that this was not the' case in this instance.

Jeter, Solicitor, for the motion.

W. F. De Saussure, contra.

The motion is unanimously granted.

Justices Nott, Richardson, Gantt, Huger and Johnson, concurred.  