
    Columbia, November Term, 1814.
    William Shaw ads. John Bowie.
    Yancey, for the Motion,
    
    Bowie, Contra.
    
    Motion in arrest of judgment, for non-suit, or new trial.
    Tried before Judge Smiths
    
    This was an action of assumpsit, brought to recover the amount of two promissory notes. The writ and declaration were for a demand of John Bowie against the defendant, and stated the notes to have been given to John Bowie. To this declaration the defendant pleaded the general issue, the statute, and a set-off. The notes produced in evidence were payable to John Bowié, clerk, of the county court of Abbeville, for the use of the county’. They were dated sometime in 1790, and payable six months after date.
    
      John Brannon, a witness’produced by the plaintiff said, that in conversation with the defendant respecting these notes, some short time before this action was brought, he said he had no recollection that any such papers were out-standing against him, but he had considerable demands against the county, which would form good discounts against them.
    Here the plaintiff closed. The defendant then moved for a non-suit: because the notes declared on were to John Bowie, and those produced in evidence were payable to John Bowie, clerk of Abbeville county, for the use of the county. The court overruled the objection ; because if the defendant had wished to have availed himself of this objection, he ought to have demurred to the declaration as the notes as copied thereon, which were those now produced in evidence. The defendant then produced a discount for fees due him as county attorney. He produced the order of the court appointing him county attorney, and also orders of the said court, that John Bowie, the county treasurer, and clerk of said court, should pay his said account for services rendered as county attorney, both before and after the said notes became due, and which were then in the hands of the said clerk. He also proved that the county attorney who had preceded and succeeded him in said office, had had the account allowed and settled off in this manner, and that it was the customary way of paying such TA , • , , • ,: ■, accounts. Rut the court rejected this discount, and would not permit it to go to the jury. The defendant further proved that these notes were given for estrays sold by the county court: and that in one of them he was only secured for one Elijah Mc-Curdy, who resided for more than six years in the neighbourhood of Abbeville court, in solvent circumstances ; but was then dead, and his representatives unknown. The defendant here closed his defence. The jury found a verdict for the full amount of the plaintiff’s demand.
    The defendant then gave notice that he would move in arrest of judgment: because the writ, declaration, and notes filed therewith, shewed no good cause of action of John Bowie against William Shaw. And he further gave notice if the said motion should not be sustained, he would then move for a non-suit: Beeause the declaration was on notes payable to John Bowie, and those produced in evidence were payable to John Bowié, clerk of Abbe-ville county court, for the use of the said county. And if he should not obtain the benefit of this last motion, he would then move for a new trial.
    1st, Beeause the evidence of John Brannan did not prove an acknowledgment, within four years, of any subsisting demand of John Bowie against the defendant.
    
      2d, Because it did not amount to proof of any de-mand of the county against him,within four years from the commencement of this action.
    3d, If it did, yet twenty years having elapsed after said notes became due, before any such acknowledgment, the presumption of payment had attached independently of the statute of limitations, and therefore, such acknowledgment was of no consequence.
    4th, Because, whether the county owed the de* fendant or not, was a matter for the jury, and ought to have been left to them.
   Nott, J.

The notes on which this action was brought, were given to John Bowie, as clerk of Ab-beville county court, for the use of the county. Shortly after they were given, the county became indebted to Mr. Shaw, to a greater amount for services rendered as cpunty attorney. The judges of the county court, having the controul of the county funds, ordered the clerk to liquidate and pay his account. In this situation, matters rested about twenty years; and ten years after the abolition of the county fcourts, without any demand for payment being made on either side.

The time which has elapsed since the giving of these notes, under the circumstances of this case, affords sufficient evidence of payment, independent of the statute of limitations, which is a sufficient bar. At least such long acquiescence, must be construed into a tacit consent on both sides, that each demand should be set off against the other.

With regard to the subsequent promise of the defendant to pay it, was no more than this : that he had forgotten that there was any such demand against him; but if there was, it must be paid. Shortly afterwards, being called upon again, he said the county owed him enough to satisfy these notes.

It is not extraordinary after twenty years had passed away in silence, and when he supposed the notes virtually paid, that he should have forgotten that they ever existed. And his promise ought not to be construed into any thing more than a willingness to do what (under existing circumstances) he was legally and equitably bound to do. It cannot weaken the claim which he before had to set off his demands against the other. This verdict, therefore, ¡ought to be set aside, and a new trial granted.

Justices Colcock and Brevard concurred.  