
    
      Executors of William Wightman vs. Thomas Butler.
    
    1. In an action of debt on bond, it appeared that part of the debt for which it was given had been due many years, and that at the date of the bond a new loan was made, for which with the old debt the bond was given; the obligor at the same time executing a mortgage of four negroes to secure the debt, three of whom after the bond became due were taken into the possession of the mortgagee and some time afterwards were sold, but the amount realised by the sale was not equal to the debt secured by the bond. Upon the death of the mortgagee, an action was brought to recover the balance due. The clerk and acting executor of the mortgagee, called by defendant and examined by consent, proved that he had had the bond in possession from its date, had had exclusive management of the mortgagee’s bussiness, who did not receive any money himself, and from these circumstances was confident the debt had not been paid. The witness said the debt was inventoried as doubtful, it being uncertain whether the defendant could pay, but that his pecuniary condition had improved. Disallowing any charge for hire from the time possession of the negroes was taken to the time of the sale, and crediting the bond with their value at the time they went into the mortgagee’s possession, of which there was no evidence but the sale, there was a balance of principal and interest due.
    2. From the sale till suit brought only about eight years having elapsed, connected with the evidence of the executor, it was held no presumption of payment arose.
    3. No legal presumption of payment of a bond can arise under twenty years. Short of that time is only a circumstance which connected with other facts, leads the mind to the conclusion that the debt has been paid.
    
      Before Evans, J. ’Charleston, Spring Term, 1843.
    This was an action of debt on a bond, dated 6th May, 1831, with a condition to pay $1,344,50, on the 1st March 1832, with interest from date. It appeared, from the evidence, that a part of the debt had been due a great many years, and that, at the date of the bond, Wightman had loaned to Butler a further sum of $500, and this bond was given for the money so loaned, and the old debt. At the same time, Butler gave Wightman a mortgage of four negroes, to secure the debt, viz: John, Sue, Peter, and Tim. On the 16th May, 1832, Wightman wrote to Butler, that understanding he was embarrassed, and the sheriff about to levy on his property, he thought it best to take the negroes into his possession. Butler accordingly delivered to the messenger, John and Sue, and Tim being in Charleston, was, about the same time, taken possession of by Wightman. Peter was not delivered to Wightman’s messenger, but remained in Butler’s possession, until two years ago, when he was levied on, and sold, by the sheriff, under executions, at the suit of other creditors. Wightman kept the three negroes until the 14th April, 1834, when they were sold under the mortgage, by a broker, and brought $1,247,19. Wightman died soon after, and this action was brought by his executors, in 184JL, to recover the balance due, after crediting that sum.
    Mr. Purse, who was the confidential clerk, and after his death, the acting executor of Wightman, was called as a witness by the defendant, and was examined by consent. He testified, that he had had this bond in his possession, from its date; that he had had the exclusive management of Wightman’s business, who did not receive any money himself, and that so far as the witness could know, or believe, from these circumstances, he was confident the debt had never been paid. The debt had been set down in the inventory of Wightman’s estate, as doubtful, because of the uncertainty whether Butler had wherewith to pay his debts; but that since then, his pecuniary condition has improved.
    The plea was, payment. The main fact relied on, length of time. The presiding judge charged the jury, that after the lapse of twenty years, a bond was presumed to be paid; but short of twenty years, time was only a circumstance, which, connected with circumstances, might create a belief that the debt was paid. In this, there was no presumption of payment, and they ought to find a verdict for the plaintiffs, for the balance of the bond, unless they believed, from the evidence, the debt was paid. They found for the defendant.
    The plaintiffs appealed from the verdict, and moved that the same might be set aside, and a new trial awarded, on the ground,
    
      That the plaintiffs’s demand was fully established, and even admited, and the defence set up was not only not proved, but actually disproved by the defendant’s own witness; and that the verdict is without evidence, against evidence, and contrary to law.
    
      Bailey Brewster, for the motion.
    
      Simons, contra.
   Curia, per

Evans, J.

On the non-payment of the money due on the bond, the mortgage because absolute and the negroes belonged to Wightman, subject to the equity of redemption. To the extent of their value they were a payment on the bond. No evidence of value was offered, except the price for which they were sold. The negroes, when Wightman took possesion of them, were his own property, and for that reason he cannot be charged with hire up to the time of sale ; all that the defendant can ask is, that the bond be credited with their value, at the time they went into Wightman’s possession. Adopting this rule, then there was a balance due of the principal, besides a year’s interest, making in all about $200. This sum the plaintiff was entitled to recover with interest, unless the defendant has paid it. No legal presumption of payment can arise under 20 years; short of that time is only a circumstance which connected with other facts, leads the mind to the conclusion that the debt has been paid. From the sale of the negroes only about 8 years elapsed, before the bringing of this action.- The executor of Wightman proved, as fully as any fact can be proved negatively, that the bond had not been paid, and assigns what would seem to be a very satisfactory reason why it had not been sooner sued. The case of Quash vs. Pinckney, 3 M’Cord, 340, was a much stronger case than this. There, there was an interval of about 14 years during which no demand had been made of payment, with other circumstances inconsistent with the fact that the debt was unpaid. The verdict of a jury is always entitled to respect, but in the enforcement of contracts, where there is nothing to warrant the finding of the j ury, the case should be sent back for the consideration of another jury. The motion for a new trial is therefore granted.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  