
    
      Sheppard’s executors vs. Cook’s executors.
    THERE were two actions of debt depending upon two bonds^ written upon the same piece of paper, and taken at the same time. The jury tried one, and found for the defendant. The. plaintiff’s counsel then moved that the other cause might be sub^ xnitted to the other jury attending the court.
   Hall, Judge,

refused this, saying it would impute to this jury, improper conduct.

Whereupon the plaintiff suffered a nonsuit, and moved after-, wards it should be set aside ; and cited Co. Litt. 157, to shew, that a juror who had once tried the cause or matter in dispute between the same parties or others, could not try it again : here the parties were the satne, and the point the same as in the other cause; namely, whether 15 or 16 years acquiescence after the last acknowledgement of a debt due upon bond, is sufficient to raise the presumption of payment. Your honor left it to the other jury to declare in the affirmative, and they did so. The plaintiff’s counsel conceives it to be a rule, that if the plaintiff suffer a nonsuit out of a deference to the court’s opinion, and that is wrong, that the court is bound to grant a new trial; 1 BI. Re. 670. 2 BL He. 60S. 2 Bi. Re. 122S. And what prospect could the plaintiff have in submitting his cause to a jury who had just determined against him the very point they had already passed upon in the other? A point which it is conceived they determined improperly, because of a wrong direction given by the court. It could not be known by the plaintiff’s counsel, that he could obtain a new trial. It would have been madness to have aisqued a new trial 5 the jury and court being both against his client j when the counsel was satisfied that at another time when the law could be properly understood, his client would recover. It is not the rule that 15 or 16 years is sufficient to raise the presumption of payment. It is that which Judge Johnston laid down some time ago at Wilmington, in the case ot the administrators of Quince os. the administrators of Aim Ross. Whereas the court here took up the idea broached by Mr. Brown, that •the rule of presuming payment after SO years, was when interest Was at five per cent.; so that the presumption arose as soon as the interest equalled the -amount of the principal; and that was done in this country at the end of 16 years and a lew months. Presuming payment from time, was begun in the term of lord Hale, when interest was at eight per cent. The case in 6 Mo. 221 in the ¡second year of queen Ann, is prior to the reduction of interest to five per cent.

Hall, Judge, 'The objection is not a good one, and I cannot set aside the nonsuit. It is not a sufficient ground for setting it EJtde, that a new trial is granted in the other sv.it.

In consequence of which, and of the opinion of the court, the nonsuit was suffered : so plaintiff had to pay all the costs of of this suit. Then he commenced a new action; but in the mean time naving recovered on the other bond, the defendants agreed to pay the money mentioned in this.

I must say quera dc hoc, for I believe on the point of presura» ing payment, the right time is 20 years : 6 Mo. 22. 5 P. W. 396. 2 Atk. 144. 1 Ch. Rep. 42. 1 Term, 270. And I also believe that the nonsuit having been forced upon the plaintiff, from an apprehension that the same jury would decide the same point as they had just done before ; that such nonsuit ought to Lave beca set aside, having resulted from the wrong opinion of -the court.  