
    [Lancaster,
    May 19, 1823.]
    HENDERSON against LEWIS, surviving Executor of GODFREY, to the use of JONES.
    IN ERROR.
    Where payment is pleaded, and issue joined thereon, the short entry of set oft' added thereto, is only a notice, and not strictly a plea, and therefore, requires ho replication.
    One of two joint obligors, not summoned, is not a witness for the other who is summoned, to prove under notice of set oft', a debt due from the plaintiff to the witness, though the witness is released by the defendant.
    A debt due from the plaintiff to the co-obligor not summoned, is not a set off against the plaintiff’s demand on the obligor who is summoned.
    The separate debt due by the plaintiff to one co-obligor, cannot be set off against a joint demand against both.
    The lapse of less than 20 years may, with other circumstances, afford a presumption of payment of a bond, but without circumstances, it must be at least 20 years to raise the presumption.
    Error to the Common Pleas of Lancaster county.
    Debton bond,brought to January term, 1818, by William Lewis, surviving executor of John Godfrey, deceased, to the use of Daniel C. Jones, against George Henderson and Thomas Henderson. The sheriff returned served on Thomas Henderson, and he alone appeared. The plaintiff filed a statement against Thomas Henderson alone, (mentioning a return by the sheriff of not summoned as to George Henderson,) claiming the principal and interest due upon a bond executed by the said George and Thomas Henderson, dated the 4th September; 1798, in the penal sum of £300, conditioned for the payment of £150 to the said John Godfrey on the 4th September, 1799, with interest from tire date. This statement admitted that the obligors had paid one. year’s interest, and also, £6 ISs. on the 8th Jipril, 1802. The defendant, T. Henderson, pleaded payment with leave, oh which issue was joined. At á subsequent day, the defendant added the plea of set off, by a short entry on the docket, to' which the plaintiff never replied.. On the trial,' after the bond had been read, the defendant offered in evidence the deposition of George Henderson, one of the obligors, made the 2d September, 1820, to prove that in the years 1S07 and 1808, the plaintiff, Daniel C, Jones, received from him in boarding, articles furnished, and cash paid on his account, to the value of upwards of 200 dollars, which he, the said G. Henderson, considered at the time, as so much paid on account of the bond. Accompanying this deposition, the defendant produced a release, under seal, from him to the said G. Henderson, dated the 2d September, 1820. but admitted to have been executed and delivered before the deposition was taken. By this instrument the defendant released G. Henderson from all responsibility to him in case he should be unsuccessful in this suit, and from paying him any thing in any event; and covenanted to pay the whole sum, if any, which might be recovered against him in this suit, without any recourse lo the said G. Henderson. The plaintiff objected to the deposition, and the court below rejected it. The defendant, thereupon, tendered a bill of exceptions.
    The court charged in the following terms:
    It is contended on behalf of the defendant, that this bond is to be presumed to be paid from the lapse of time which has taken place from the period it became due, without being demanded. But the law requires that 20 years should elapse from the time the bond became due, before the presumption can arise from the lapse of time alone. This bond was not due until the 4th September, 1799, which constituted a period of 18 years and 3 months. Even if 20 years had elapsed from the time the bond became due, until it was sued, the presumption may be repelled by other circumstances, such as the payment of interest within the 20 years, or payment on any other account within that time. Whether the payments credited in this case were made within that time, it would be necessary for you to decide, if 20 years bad elapsed between the period at which the bond became due, and that at which it was sued: but as that is not the ease, the plaintiff is entitled to recover the balance due on it, with interest.
    The defendant excepted to this charge, and the jury gave a verdict for the plaintiff.
    The errors now assigned were, first, that there was no issue on the plea of set off. Second, that the deposition of G. Henderson was not admitted. Third, that the court erred in their charge.
    
      Buchanan for the plaintiff in error,
    contended,
    1st. That the plea of set off was not replied to, and no issue was joined upon it. A set off cannot be given in evidence on the plea of payment with leave. 2d. That G. Henderson was a competent witness. The only objection that could be suggested was, that he was a party on the record: but that is not sufficient, if such party be wholly divested of interest, as the witness here was. In Hick-art v. Haine, a defendant, one of the administrators of HicJeert, was offered as a witness, after having released, and an offer made to pay the costs: but the court rejected him on the ground, that a mere offer to pay.the costs was not sufficient, and that he was still interested, because the verdict might implicate him. It was not suggested by the court, that.if he had been wholly disinterested,^ he might not have been a witness. G. Henderson, however, was free from all interest; because not being then a party to the suit, he could not be affected by the verdict, if in favour of th§ plaintiff. Nor would he be liable in another suit, because the action was originally joint, and the judgment must be against one, by which the cause of action would become extinguished. Williams v. M‘Fall, 2 Serg. & Rawle, 280. The reception of plaintiffs as witnesses is now familiar, in cases where they have no interest in the suit. In Drum v. Simpson’s Lessee, 6 Binn. 478, the lessor of the plaintiff was held to be a goodwitness for the defendant, being only a trustee. So a nominal plaintiff is a witness for the party beneficially interested, on a sum being paid sufficient to cover all the costs. Browne v. Weir, 5 Serg. & Rawle, 401. In Purviance v. Dry den, 3 Serg. & Rawle, 402, the point now before the court was in effect decided. There it was held, that if a writ issue against two, and only one be taken, and the suit proceed against him alone, the other is not excluded from being a witness on the ground that he is a party to the suit. The practice of severing the party not summoned, is now become a well established course in this state, and was recognized many years since in United Stales v. Parker, 2 Dali. 273.
    3d. The charge was erroneous in stating that there could be no presumption of payment, 20 years not having elapsed' between the time of payment, and the commencement of the suit. In Rex v. Stephens, 1 Burr. 434, Lord Mansfield observed, that there was no direct and express limitation of time when a bond should-be supposed to have been satisfied. The general time, indeed, was commonly taken to be about 20 years: but he had known Lord Raymond leave it to a jury upon 18 years. In the Mayor of Hull v. Horner, Cowp. 109, he even says, that a jury may presume a bond to be discharged, where no interest appears to have been paid for 16 years. In this instance, the period exceeded IS years, and therefore, the court ought to have left it to the jury to draw the presumption of payment if they thought proper.
    
      Hopkins, contra,
    made no observations on the first point, as it was in a great measure relinquished. •
    1st. This point is a novelty: one of the joint obligors is called as a witness to extinguish the obligation. He was released by the defendant, but that could not make him a witness for himself. It is a dangerous principle which is now set up: because joint obligors will have only to separate, so as to live in different counties, and then one may be a witness for the other. It is not the fault of the obligee, that one of the obligors could not be taken in the county in which he was sued. Nor is th e debt extinguished by judgment: there must be satisfaction, otherwise G. Henderson remains liable, wherever he may be found. He cited Bant león v. Smith, 2 Binn. 146. Chapman v. Martin, 13 Johns. 200.
    2d. There were 18 years and 3 months, between the time of payment of the bond and the institution of this action, besides which, one year’s interest had been paid. It is well settled in Pennsylvania, that where time alone is the circumstance relied on, not less than 20 years will raise the presumption of payment. The cases cited from 1 Burr. 434, and Cowp. 109, are not to the purpose, for in them there were other circumstances besides the length of time.
    
      Buchanan, in reply.
    1st. Was G. Henderson interested ? Could the plaintiff sustain an action against him after this suit? I contend that he could not. By bringing a joint suit he has precluded himself from so doing: by a judgment against one in a joint suit, on a joint and several bond, the bond is extinguished; there is no instance in this state of a suit against one joint obligor after a judgment in an action brought jointly against the other obligor.
    2. The charge of the court was wrong. It was pex'emptory to find for the plaintiff without leaving it to the jury to judge from circumstances. The court had no right to take the case from the jury.
   The opinion of the court was delivered by

Gibson, J. Bv

the English statutes, where either the debt for which theaetion is brought, or that proposed to be defalked, has accrued by-reason of a specialty, the set off must be pleaded in bar: in all other cases it may be either pleaded or given in evidence on the general issue. By our act of assembly, the defendant may, in all cases, either plead it specially, or give it in evidence on notice under the plea of payment, at his election; and where payment is in fact pleaded, the additional short entry of “set off,” is* not considered as a plea, but a minute or memorandum that a set off is intended to be relied on. A formal plea would require application; but nothing appears here beyond the customary short entry, and the cause having been put at issue on the plea of payment, the record is in this respect well enough.

The deposition of George Henderson was properly excluded. The bill of exceptions presents the case of a joint obligor, against whom the writ was issued, but who was not summoned, being produced to prove a debt against the plaintiff separately due to himself; and although he might not be incompetent to testify to any fact in the cause merely on the ground of having originally been joined as a party, he might be incompetent on the ground of a particular interest. From liability to the plaintiff, he was discharged by the action, which was originally joint, being prosecuted separately against his co-obligor; and from liability to the defendant to contribution for the debt and costs that might be recovered, which would otherwise be sufficient to exclude him, (Riddle v. Moss, 7 Cra. 306,) he was discharged by the defendant’s release: but he was clearly interested in the demand proposed to be defalked.

In permitting cross demands to be set off against each other, the object is to prevent circuity of action; and a.successful attempt to set off a debt, must therefore necessarily be équwalent to the recovery of it by a separate action. Here, had .the demand of the witness been succssfully used as a defence, he would have been entitled to the benefit of it, between himself and his co-obligor, and to permit him to sustain his own demand by his own evidence, would be • to allow him to appear as a witness in his own cause. The release by Thomas Henderson, the co-obligor and defendant in the cause, of all responsibility on the part of the witness, as well as his covenant to pay whatever might be recovered, without recourse to the witness, did not remove this interest: nothing but the relaase of the witness himself could do that. But independent of personal objection to the witness; thedebtitselfwasnotthesubjectof defalcation; because not being due to the defendant but to the witness, who was not a party, it wanted the ingredient of mutuality. The object in permitting debts to be set off,, being, as I have said, to prevent circuity of actions, it of course can be allowed only where the parties have a mutual right to sue each other. But here there was, as respects the debt attempted to be( set off, nothing like privity between the plaintiff and the defendant. Where a bond is sued jointly and one of the obligors is not summoned or taken, they who appear shall be charged with the whole. Here the person to whom the debt was alleged to be due, was not a party to the suit, and was offered as a witness avowedly on that ground. How. then could he urge a defalcation of his debt in a cause in which he was not defendant? Or how could his co-obligor who was a defendant, and the defendant exclusively liable, urge it, when the debt was not demanded by him? In this respect the case is perfectly analogous to that of Cramond v. Bank of the United States, I Binn. 64, in; which the set off was not allowed. But if both obligors had appeared, this separate debt of one of them, could not according to the English statutes have been set off against the plaintifi’s joint demand; and íj c am not ,aware of any thing in our act of assembly to create a differ-j,1 ence. The case of a set off by a surviving partner, of a partnership debt against his own separate debt, depends on the circumstance that the right to sue for the partnership debts survives to him; and as he may sue for them as his own, hé may set them off as his own.

Thenastotheerforassignedinthedirectionofthecourt. Between the time when the bond became due, and the time when it was put in suit, there was an interval of eighteen years and three months; during which there appears to have been endorsed on the instrument a credit of a years interest, and a small part of the principal. The rule with respect to the presumption to be drawn From lapse of time, is derived by analogy from the English statute of limitations concerning writs of entry into land, and the statute of limitations concerning writs of error; and it is adopted both by courts of law and by courts of equity: by the former not only in the case of a stale claim on a bqnd, but in the case of the peaceable possesion of a franchise, or incorporeal right; and by the latter in the case of a bill by a mortgagor to redeem, and in the case of a bill of review. Our act of assembly restrains the commencement of actions for recovering the possession of lands to twenty one years from the time the-right of entry first accrued; but the rule, as stiled in analogy to the English statute, the limitation in which is only twenty years, was adopted here before our act was passed; and it was not after-wards worth while to alter it merely for the sake of preserving the analogy. But the rule is in the nature of a statute of limitation furnishing, not indeed a legal bar, but a presumption of facts and although less than conclusive, yet prima facia evidence of it, and therefore sufficient of itself, to cast the burthen of countervailing evidence on the opposite party. When less than twenty years has intervened, no legal presumption arises; and the case not being within the rule, is determined on all circumstances; among which, the actual lapse of time, as it is of a greater or less extent, will have a greater or less operation. All this is so clearly stated by Lord Mansfield, in the Winchelsea causes, 4 Burr. 1962, as to leave no doubt of the origin and nature of the rule. In the case of a debt accruing by reason of a specialty, it was necessary for the sake of convenience and repose to establish some-certain period after which payment should be presumed from lapse of time alone: and that period was, in analogy to the statute of limitation, fixed at twenty years. But it is to be observed, there is an obvious distinction between length of time sufficient, of itself, to raise a legal presumption of the kind which I have mentioned, and length of time which, although insufficient for that purpose may nevertheless, in connection with other circumstances, fairly enter into the estimate of the proof to be derived from the whole evidence. The rule is applicable only to the first, because no legal presumption of the fact can be obtained from the second, and stabitur presumptioni, doñea probetur in contrarium cannot be predicated of it: it is a matter exclusively for the consideration of the jury. A want of attention to this, has I apprehend given rise to the loose dicta of Lord Mansfield, and other judges of the length of time necessary to found a presumption of payment, being 20 about years, .and of cases having been left to the jury where it was but eighteen. To deprive the rule of fixed limits would, besides rendering its application in most cases, difficult and uncertain, change its very nature, and destroy all analogy to the statutes of limitations from which it was derived. If eighteen years be left to the jury as sufficient in one ease, why may not seventeen, or any less number, be left to them as sufficient in another? But the presumption is not subject to the discretion of the jury: they are bound, where it operates at all, to adopt it as satisfactory proof till the contrary be made out; and hence when we hear of less than twenty years being left to the jury, it must be understood to have been in connexion with other circumstances, and not as making out the defendants case in the first instance, but as going for just as much as the jury might under all the circumstances, estimate it to be worth. In the case before us there was not a lapse of time sufficient to authorise a presumption of payment, and as there .was nothing in aid of the time which actually elapsed, I am of opinion the cause was properly put to the'jury.

Judgment affirmed.  