
    *E. Haskell and C. B. Cochran, Survivors, v. Peter Keen and Benjamin Hart.
    A Bond was given by two obligors to three obligees, one of the obligees (A) who had received the property, for which the bond had been given, gave the obligors a bond of indemnity. Quary. If it be a release ?
    The bond of indemnity is an acknowledgment on the part of A, that he had received the value for which the original bond was given, and though it may not be a discharge, yet, as between A and the obligors, under our discount law, it would have been a bar to A’s recovery on the bond, and ought to be regarded as a payment to A, who was competent as one of the obligees to receive and discharge the obligors, ut videtur.
    
    A confession by one co-obligor, that he had never paid, and that he believes the other had not, is not sufficient to rebut the presumption that the other obligee had paid.
    After twenty years a bond will be presumed to have been paid, unless such presumption be rebutted, 
    
    Tried before Mr. Justice Johnson, at Columbia, October, 1819.
    This was an action of debt on a bond, payable to the plaintiffs and John Paul Thomson, whom they had survived, dated the 10th April, 1794, conditioned for the payment of seven hundred and twenty pounds, on the 1st January, 1796 ; and the action was commenced on the 12th February, 1816, so that more than twenty years had run from the time the bond became due to the bringing of this action. The presumption arising from the length of time, was the defence relied on, under the plea of payment. To rebut this presumption, the plaintiff gave in evidence a certificate given by the defendant, Hart, in the following words, to wit: “ I, Benjamin Hart, do hereby certify, that I have never paid the bond on which this action is brought, nor do I believe the defendant, Peter Keen, has paid it, the bond of indemnity now shown with this, shows who was to pay this debt, and 1 heard John Paul Thomson, some time *lfiil the year 181l,regretthathewas largelyindebted to Major Haskell, J *which he was unable to pay. March 23,1819. Signed, Benjamin Hart.”
    
    On the production of the bond of indemnity, referred to in this certificate, it proved to be a bond made by John Paul Thomson to the defendant, Peter Keen, dated in 1794, in the penalty of fourteen hundred pounds, with a condition annexed, reciting that the said Peter Keen had purchased, at public sale, seven tracts of land, and eleven negroes, of the said Elnathan Haskell, Charles B. Cochran and John Paul Thomson, for the sum of seven hundred and twenty pounds, and liad given the bond on which this action was brought, with the defendant., Benjamin Hart, as security, to secure the said purchase money, and that the said Peter Keen had, at the request of the said John Paul Thomson, executed conveyances to him for the whole of the said lands and negroes, in fee simple. That the said John Paul Thomson had, in consideration, agreed and took upon himself, “ well and truly to pay, satisfy, or discharge, the said bond, and to indemnify and save the said Peter Keen and Benjamin Hart, harmless from all damages to be sustained by reason of the said bond, &c.
    It'also appeared, that the property purchased by the defendant, Keen, and conveyed to John Paul Thomson, had been before conveyed by Colonel William Thomson, the father of John Paul Thomson, to the said ID. Haskell, C. B. Cochran and John Paul Thomson, in trust to pay his debts; and that the purchase made by Keen was under a sale in pursuance of the trust: and this deed of trust contained a limitation over of the remainder, after the payment to Colonel Thomson and his heirs, &c.
    The defendant then gave in evidence an advertisement, written by ID. Has-kell, in the name of the trustees, giving notice to the creditors of Colonel Thomson, that the trustees were in funds, requesting them to call and receive payment, to enable them to close the trust; and also a great number of receipts, given by 35. Haskell to John Paul Thomson, dated from 1199 *to 1810, purporting to be in full of all accounts, &c. They also gave in >- íb¿ evidence the receipts of Haskell and Cochran, for legacies, under the will of Colonel Thomson to John Paul Thomson, who was his sole executor.
    The jury, under the direction of the Court, found a verdict for the defendants ; and a motion was now made for a new trial on the following grounds :
    1. Because the written declaration of Hart, that he had not paid the debt, rebutted the presumption of payment arising from the length of time.
    2. Because the bond of indemnity entered into by John Paul Thomson, to the defendant, Keen, did not discharge the debt.
    
      Stark, for the plaintiffs,
    contended that he was entitled to a new trial on both grounds stated in the brief. His Honor was incorrect in stating to the jury that the bond of indemnity was a release.
    A bond of indemnity is not a release. It is different from a bond not to sue. He admitted that a bond not to sue, was a defeasance. 1 Esp. Dig. 2 part, 85. See, also, Glayton v. Kinaston, 1 Lord Raymond, 419. What did the parties intend? Not a release. It cannot be considered a release.
    If it be a release, it should have been pleaded. 1 Esp. 2d part, 85.
    But upon the other ground. The presumption of payment was completely rebutted. The declarations of one co-defendant is enough to conclude the others. He referred to Somerset v. France, 1 Str. 659.
    
      McCord, for the defendants;
    
      (William F. De Sausure, on the same side.) There is nothing in the nature of this case that constitutes any difference between it and the numerous other cases, where the presumption of payment has arisen after a lapse of twenty years. The admissions of Major Hart do not rebut the presumption that Dr. Keen paid the bond; for in the bond Keen evidently seems the principal. *Hart is only mentioned at the bottom p*of the bond. Hart’s admission refers to the bond of indemnity, which, if L ■Lt>d not a.reloase, must, at least, be regarded as an evidence of payment. So, “if he whom it concerns to have my part of the covenant fulfilled, is the occasion why it is not, it is the same thing to me as if it were fulfilled.” 1 Pow. Oont. 420.
    Thomson, one of the obligees, ieceived the negroes for which the bond was given, and if such receipt be not regarded as a payment, it certainly is the cause why Keen did not perform his covenant. The power to perform was taken away by the obligee, and thereby he released the obligors from further performance. To say otherwise, would be no less than to assert that a bond could only be paid by money. In Skip v. Huey et al., 3 Atk. 91, receipt of, notes from one obligee, in lieu of the bond, was held a release to the other obligor.
    Any collateral satisfaction may be agreed upon. 1 Pow. Oont. 451. 7 Mod. 144.
    It is not denied but that one co-obligee may release. 1 Bridgman’s N. P. 277, citing 2 Boll. Abr. 410, pi. 47. Bayley v. Lloyd, 7 Mod. 250. And a release to one obligor is good for them all. 1 Bridg. N. P. 277, 278. Cheet-ham v. Ward, 1 Bos. & Pul. 630.
    A bond of indemnity is a release or defeasance. The case of Clayton v. Kinaston,
      
       is clearly in our favor. There it was held, that a bond of indemnity to one among several obligors was no defeasance; but it was also held that an undertaking to indemnify a sole contractor, was. There can be no distinction between an indemnity to a sole contractor, and to all the contractors, for they are the sole contractors. That there is but one person to the deed, cannot be the reason why it works as a defeasance. The reason must be, because the contract of indemnity is made with all of the contractors; for a release to one (3 Salk. 298, Lacy v. Kinaston,) of two, does not discharge the right, but only the remedy against the party to whom the indemnity is given, for he may still *164.1 *iave ac*'i°u* against the other. But not so where the indemnity is to all, or the sole obligor. The right and remedy are both gone as to all the parties.
    A covenant to discharge, is a good bar. Hodges v. Smith, Oro. Eliz. 623.
    We admit that a release generally ought to be pleaded. But in this case the plaintiffs gave in evidence admissions which called for this bond. The bond was there adduced in evidence by their own act. The whole of confessions must be given in evidence. He, then, cannot now, especially after verdict, wheu no objection was made below, object to the manner in which the bond was produced.
    Justice, at least, has been done in this case, and the Court will not, therefore grant a new trial, unless there has been gross error.
    
      
       See 3 Strob. 451; 4 Strob. 220.
    
    
      
       11 Rich. 403.
    
    
      
       The Executors of Robert Smith v. William Richardson.
      This was an action of debt, on a bond which had been due nineteen years and about nine months.
      
      The defendant pleaded solvit ad diem, and relied on the presumption of payment arising from lapse of time, together with some circumstances appearing on the face of the bond. It purported to be due from Mrs. Ann Richardson and William Richardson. Two seals were affixed to it. But it was signed by William Richardson alone ; and his name was placed opposite the lower seal.
      The case was tried at Sumter, Fall Term, 1818, before Mr. Justice Nott, who, after explaining the law, sumitted t&e case to the jury, who found a verdict for the plaintiff.
      This was a motion for a new trial, on the ground that the verdict was contrary to law and evidence.
      The opinion of the Court was delivered hy Mr. Justice Non.
      The rule of law on this subject, as settled hy several successive decisions of our courts is, that a lapse of twenty years, from the time mentioned in the condition, affords such a presumption of payment as will amount to a complete bar to plaintiff’s action, where no interest has been paid, and there is no other circumstance to negative the presumption of payment on that day.
      A shorter period, when accompanied by other circumstances from which payment can be inferred, may be left to the jury.
      
      *The circumstances relied on in this case in aid of the presumption of payment are, that it appears to have been the intention- of the obligee to take a bond from two persons, whereas it is only executed by one ; and as the name of that one is prefixed to the lower seal, it is presumed that he was only surety and received no consideration for the bond; and as it never was executed by the supposed principal, it is contended the Court ought to presume that it never did take effect, or was afterwards paid by the principal, in exoneration of the security.
      But very little can be inferred in favor of the defendant from these circumstances. It does not follow, that because the plaintiff’s testator intended that Mrs. Richardson should have signed the bond with her son, that it was her intention to have done so. Neither does it follow, that because William Richardson subscribed his name to the lowest seal he was only security. On the contrary, it is not to be presumed that any person would make himself liable by bond to pay a debt as security for another, before it had been executed by the principal.
      The delivery of the bond by the defendant is conclusive as to him, so far as regards the first point. The legal obligation on him was as strong as if it had been executed by both.
      The relation in which the intended co-obligor stood to the defendants would, in all probability, have furnished him with the means of proving the fact if she had jcaid the debt, or at least of producing some circumstance in support of it.
      Another circumstance relied on is, that the action is brought by the executors, whereas the original obligee never attempted to enforce payment in his lifetime. If it had been shown that the original obligee lived till within a short period of the commencement of this action, an inference favorable to the defendant might perhaps have been drawn from it. And if such had been the fact, the evidence of it might have been easily obtained. But no such evidence was adduced. And there is some reason to believe that the reverse was the case; from whence a contrary presumption would arise.
      Upon the whole, the Court does not see any thing in the case which made it the duty of the jury to find a verdict for the defendant, much less is the evidence of that sort as entitles him to a new trial.
      Colcock, Cheves, and Johnson, JJ., concurred.
      Gantt, J., dissented.
      
        Mayrant and Blanding, for the motion. Bullard, contra.
      In the case of Gratwick v. Simpson and Moore, it is said, “The judges have laid it down now, QS an invariable rule, that if there be no demand for money due upon a bond for twenty years, that they will direct a jury to find it satisfied, from the presumption arising from the length of time.” 2 Atk. 144 ; see also Colsell et al. v. Budd et al., 1 Camp. N. P. C. 27; Forbes, Executor, v. Wales, 1 Black. Rep. 532; Reid v. Stephens, 1 Bur. 434; Mayor of Hull v. Horner, 1 Cowper, 109 ; Dunlap v. Ball, 2 Cranch, 183-4; Cottle v. Payne, 3 Day’s Cas. 289 ; Thompson v. Skinner, 7 John. 556 ; Executors Brewton v. Executors Cannon, 1 Bay, 482; Palmer v. Dubois, 1 Const. Rep. 178. R.
    
   The opinion of the Court was delivered by

Johnson, J.

It is not' now necessary to enter into an investigation whether twenty years is per se sufficient to authorize the presumption that a bond which has been suffered to lie dormant for that period is paid. It is a principle long acted upon by this Court, and solemnly recognized in the late case of Administrator of Cohen v. Executors of Thomson, brought up from Orangeburgh; and I think, indeed, it is so well settled that I should always regard it as conclusive, unless repelled by circumstances; and there is no doubt it may be. Phillips, 114. These circumstances must go to prove, either that the debt was still subsisting, such as a recent admission of the debt, or the payment of a part, or interest, or the like, or to account satisfactorily why an earlier demand was not made ; such, for instance, as a legal disability in the plaintiff to sue, and the like. Phillips, 114. This case, then, is resolved into the single inquiry, whether the evidence is sufficient to repel the presumption arising from the length of time ?

The reaS0Ils upon which these rules are founded, *are, that in the ordinary concerns of men, few feel the inclination, or find it convenient to let a debt stand over for so great a length of time, and in the general course of things it is rare that the evidence of payment, whether it depends on memory, or is written, is preserved so long.

Let us then test this case by these principles.

The only evidence offered to rebut the presumption in this case is the certificate of the defendant, Hart. It appears to me that it would be an appropriate answer to the argument founded on this fact, to observe that this admission does not profess to state, that the debt was not paid by the other defendant, further than as a mere matter of opinion ; and the bond of indemnity referred to, in that certificate proves that John Paul Thomson, one of the obligees, had undertaken to discharge him from the payment. That discharge might have been effected either by Thomson’s putting the amount of bond into the trust fund, or by giving the defendant a written release. Now there is proof from which I think it might be fairly inferred, that Thomson had paid it into the trust fund ; for the trustees advertised that they were in funds to pay the creditors, and the remainder is limited over to Colonel Thomson, to whom John Paul Thomson was the sole executor and residuary legatee, and the present plaintiffs have received their legacies under his will on a final settlement of the estate. And it is unreasonable to believe, that, if this debt had been wanted for the purpose of the trust, or was considered as a part of the estate of Colonel Thomson that it would have been suffered to lie over to this time, and if it was not necessary for either of these purposes, it devolved on John Paul Thomson alone, as the residuary legatee of Colonel Thomson. But in another view I think it is equally satisfactory. Prom all the circumstances it evidently appears that the debt was incurred by the defendant, Keen, as the friend of John Paul Thomson, and the bond of indemnity shows, that it was never intended *that he should pay it in coin, and it is only necessary to presume, that L John Paul Thomson did, in pursuance of his solemn obligation, pay the debt, or discharge Keen from it, either of which is within the reason of the rule.

There is another view of the subject. The bond of indemnity is an acknowledgment on the part of John Paul Thomson, that he had received the amount of this bond in the lands and negroes conveyed to him by Keen, and although I am not now prepared to say, that the bond itself is a discharge from this debt, yet as between them, under our discount law, would have been a perpetual bar to Thomson’s recovery on this bond, and ought, I think, to be regarded as a payment to Thomson, who was competent as one of the obligees, to receive it, and discharge the defendant.

The motion is refused.

Colcock, Nott, G-antt and Bjchaedson, JJ., concurred. 
      
       2 McC. R. 146; see 1 McC. R. 178.
     
      
       See 1 McC. 543.
     
      
       2 Sp. 359 ; 11 Rich. 205.
     