
    Waddell, Administrator, against Elmendorf, Administratrix.
    
      Judgment / presumption of payment, from lapse of time.
    
   Action upon a judgment recovered in 1810. Defence, presumption of payment by lapse of time.

The principal question in this case was, as to the nature of the evidence by which this presumption might be repelled. Sec. 46 of title 2, chap. 4, part 3 of the Revised Statutes provides, that “ the presumption of payment shall apply to all judgments of a court of record in this state rendered before the 3d day of April, 1821, and to all such judgments rendered before this chapter shall take effect as a law, in the same manner as such presumption applies to sealed instruments.”

Section 48 of the same title provides as to sealed instruments, that after the expiration of twenty years from the time a right of action shall accrue upon a sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment ; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period.”

The question was, whether section 46 was intended to refer to and adopt the rule of presumption applicable to sealed instruments, which was in force immediately before the passing of the act, or the new rule prescribed by section 48 of the same statute.

It was held, that the former was the true construction: and the Supreme Court having so decided, the judgment was affirmed.

(S. C., 12 Barb. 585; 10 N. Y. 170.)  