
    [Philadelphia,
    January 9, 1826.]
    COPE against HUMPHREYS and others.
    IN ERROR.
    After the lapse of twenty years, a judgment is presumed to have been satisfied, unless there are circumstances to account for the delay.
    If there are no such circumstances, it is not the duty of the court to submit the question, as an open one, to the jury. Satisfaction of the judgment is a presumption of law upon the facts.
    If the original judgment was against several defendants, and on a scire facias post annum et diem the return as to one of the defendants is, nihil habet, and judgment is entered against him by default, this is not a circumstance to aftect the presumption of payment.
    This was a writ of error to the Court of Common Pleas of Montgomery county, in which the plaintiff below was the plaintiff in error.
    The suit was a scire facias to revive a judgment brought by Thomas P. Cope, against David Humphreys, Owen Humphreys, and Thomas Humphreys, administrators of Thomas Humphreys, deceased. The original judgment was recovered on the 9th of April, 1800, by Thomas P. Cope, against Thomas, David, and Owen Humphreys, for seven hundred and thirty-four pounds, four shillings and eleven pence. A scire facias against the present defendants was issued on the 13th of 'August, 1822, to August Term, 1S22, which was returned “nihil.” An alias scire facias was issued on the 21st of August, 1822, to November Term, 1822, the return to which was, “ made known to Thomas Humphreys and David Humphreys, and, as to Owen Humphreys, nihil ha-bet.” A special appearance was marked for Thomas and David 
      
      Humphreys April 14th, 1823, and the plea of payment with leave, &c., entered. On the 18th of August, 1823, judgment was entered against Owen Humphreys for want of appearance. On the 26th of January, 1825, the cause was tried and a verdict given for the defendants. On the trial of the cause, the plaintiff gave in evidence the record of the judgment, of February Term, 1800. Also, the scire facias to August, 1822; and the alias scire facias to November, 1822. And the defendants examined Reese Thomas, who testified as follows: Thomas Humphreys, the defendants’ intestate, lived in Lower Merion township, in Montgomery county, about nine miles from Philadelphia, on the Lancaster road: he died about three or four years ago. David Humphreys is living, and keeps the turnpike gate, No. 2, in the county. He did not know Owen. Thomas was a very old man, — he was a man of property, and owned real estate.
    The court charged the jury as follows:
    “ This is a scire facias to revive a judgment, entered on the 9th of April, 1S00, twenty-four years ago last April, and, according to the evidence, the first step that we know of to assert a claim, or carry it into execution, or to demand any thing under it, was a scire facias to August Term, 1822, returned nihil, which, had it issued within twenty-one years, would probably have been a sufficient assertion of claim, to take the case out of the presumption from length of time.
    
      “ The defendant has pleaded payment, and relies for his proof of this defence on the lapse of time between the entering of judgment and doing any act to carry it into effect. It is certainly true, that a judgment may be discharged by payment; had a payment been made and a receipt given, sueh receipt might have been given in evidence, to show that the judgment was satisfied. But after great length of time, owing to the great difficulty of preserving receipts, or other evidence of payment, it is reasonable that payment should be presumed from length of lime. That in respect to a bond, after twenty years from the time of payment upon it, or demand made, a presumption of payment arises, seems to be admitted. So, after twenty years, a mortgage will be presumed to be satisfied. Neither in Great Britain, nor here, is there any statute providing for this limitation. In England, although the case was not included in it, the decisions evidently had reference to the statute of James. If the law presumes a bond or mortgage paid after twenty years, can any sound reason be assigned why a judgment should not be subject to the same rule? Is there in a judgment any greater sanctity than in a mortgage?
    
      “ When a mortgagee, not in possession, has not received any payment for twenty years, or done any act under the mortgage to preserve his claim, the law presumes payment. When he is in possession, no presumption indeed arises, because, being in the perception of the profits, they are by law appropriated to pay off the mortgage. It is not unusual to give judgment bonds and mortgages: the former are entered up, and the latter are recorded. Against a mortgage thus entered, a presumption of payment from twenty years arises. What reason is there it should not operate so in regard to a debt secured by a judgment? — Of a judgment which has been suffered to lie dormant twenty years, payment may be presumed. Forbearance for so long a time unexplained, is a circumstance from which the jury may and ought to infer, that the judgment has been satisfied.
    “ The court apply the same principle to a judgment; a judgment which has* been suffered to lie dormant for twenty years. It is but a presumption, but it is a legal presumption, governing the court and jury. It may indeed be repelled by circumstances, such as payment, promise to pay, &c. But in the absence of all evidence, as here, where the delay is unexplained by any circumstances, and more particularly, after the death of the obligor, the legal operation is, that the debt is paid. I state the law thus strongly, and without equivocation, that if there be any doubt upon the subject, it may be now settled, that the people may be informed, if such be the law, that the same presumption.of payment, applicable to bonds and mortgages, is not the rule as to judgments. It is true, that no authority of a record has been cited, but the analogy to the cases of bonds and mortgages is so strong as not to be mistaken. It is said that this is a record; so is a mortgage a record, not of a court, but under the charge of an officer of equal responsibility with the prothonotary, who enters the judgments of the court. His exemplifications are evidence. The law even presumes a common recovery after a certain length of time, for the purpose of effecting justice. Upon the whole, the jury will receive the law from the court, as it is laid down, without being led away by any thing that has been said about the respective parties, who are making and resisting the claim.”
    The plaintiff excepted to this opinion.
    The errors now assigned were,—
    1. The judge erred in charging the jury, that the lapse of twenty years afforded a legal presumption that the judgment was paid.
    2. The judge erred in not leaving it to the jury, that a judgment by default against one of the defendants, after a return of two ni-hils as to him, to two writs of scire facias, was a circumstance to repel the presumption of payment from lapse of time.
    3. The court refused to leave the facts of the case to the jury.
    
      Price and Ritiera,, for the plaintiff in error,
    now argued the errors assigned.
    1. They contended, that there was no presumption in law that a judgment was paid after twenty years. At common law, payment was not a good plea to a scire facias on a.judgment: the sta- . tute 4 Jinn. c. 16, gives the plea where the money is paid. No matter in pais is pleadable to a scire facias, except the plea given by this statute. There can be no presumption against a record: it imports absolute verity: it is authentic beyond contradiction5 and tried only by itself. There is no authority for the court’s decision either in England or Pennsylvania. On the contrary, the books of practice speak of the modes of proceeding to revive judgments after twenty years. The defendant has a right, if he pays a judgment, to call on the plaintiff to enter satisfaction, and that makes the case of a bond and judgment very different. They cited, Co. Lilt. 39, a. 117, 268. Gild. Ev. 7. 9 Johns. 287. 1 Ghitt. 481. 5 Bac. Jib. 410. Cowp. 214. Tid’s Frac. 1007. 2 W. Bl. 995. 6 Munf. 282. 3 Bl. Com. 559.
    2. The judgment by default against Owen Humphreys was an admission of the cause of action. Sira. 612,1149. An acknowledgment by one partner takes the case out of the statute of limitations. Ball on Limit. 202.
    3. The court ought to have left the case to the jury. Circumstances do away the presumption, — such as indorsement of interest on a bond, 2 Stra. 826: the unsettled state of the country, 1 Coxe’s N. J. Rep. 433. Slight circumstances suffice to repel the presumption. 10 Johns. 414.
    
      Rawle, jr., contra.
    1. This case presents the naked question,.whether a presumption of payment of a judgment arises after a lapse of twenty years. Here upwards of twenty-two years had passed. We contend, that the same general rule applies to judgments which operates in other cases. A bond is presumed to be paid after twenty years, 1 Yeates, 344; a mortgage, 1 Mad. Ch. 417, 246, 3 P. Wms. 287,10 Johns. 414, 9 Wheat. 497: corporate privileges are not disturbed after twenty years, 4 Burr. 1962: a water-right is protected after twenty-one years, 10 Serg. & Rawle, 63, 69. We do not deny the record, but say the debt has been paid, and this is an answer to the cases cited as to the efficacy of records. This question is not, however, new: it has already been decided, Fr. Max. Eq. 39, No. 10, pi. 5. 2 South. N. J. Rep. 721. 2 Const. Rep. S. Car. 617. 2 Rep. Const. Co. S. C. 146, are all authorities in point; and the allusion to it is strong in 7 Serg. & Rawle, 410.
    
    2. The judgment by default against Owen Humphreys was not a circumstance which should have induced the court to leave this matter to the jury. It is indeed sufficient, that the court was not asked for their opinion as to the effect of the judgment by default; and a judgment is not to be reversed because the judge has not made all the remarks which the case admitted of, 2 Serg. & Rawle, 397. No-presumption, however, can arise from a judgment by default on two nihils The defendant not having been summoned did not know of the action, and therefore did not impliedly confess any thing.
   The opinion of the court was delivered by

Duncan, J.

This case presents three heads of inquiry. The first — Does the presumption of payment of a judgment of more than twenty years’ standing, obtain in the same degree as it does on bonds?

2. If there were no circumstances to account for this delay, was it the duty of the court to submit the question, as an open one, to the jury, to draw their conclusion as to actual payment?

3. Was there no circumstance given in evidence to repel the presumption of payment, from length of. time, to be left to the jury?

The presumption is admitted to obtain as to bonds and mortgages} but it is said, there is no instance in which payment of a judgment shall be presumed, after a forbearance for twenty years, the record itself importing absolute verity. I have not been able to distinguish judgments from bonds and mortgages. Claims the most solemnly established on the face of them, will be presumed to have been paid after twenty years. The existence of a record may in some cases, and after a long time, be presumed: if that may be presumed, I do not see why its satisfaction may not be presumed. The plea of payment does not infringe the sanctity of the record, but shows that it has answered the purpose of its creation, by a satisfaction of the debt secured by it.

On a bill to foreclose a mortgage, a court of chancery makes the same presumption of facts on the allegation of payment, (Giles v. Baremore, 5 Johns. Ch. R. 551,) and that without sending it to the jury.

By the common law, a judgment on which no execution was taken, out for a year and a day, was not operative as a judgment, on which execution might issue; the party was driven to his original on the judgment. The scire facias was given by statute, and it is so-far in the nature of an original «ction, that the defendant may plead to it. In England by the rules of practice, which have' not been adopted here, if the judgment be above ten years’ standing, the plaintiff cannot sue out a scire facias without motion in court; and, if above seven years, he cannot without a side bar rule. In the courts of New York, leave will not be given to enter up a judgment on a warrant of attorney of eight years’ standing without accounting for the delay. 7 Johns. 282. Nothing can more clearly evince the strong opinion of courts of justice of "the effect of time on judgments than these rules.

As eourts would direct a jury to presume payment on a mortgage after twenty years, if they act on the presumption of payment of the debt secured -by the mortgage, what good reason can be assigned why, if judgment was obtained on it, the same presumption should not be made ? If a man holding a warrant of attorney' to confess a judgment on bond, were to forbear for nineteen years to enter up the judgment, would that entry prevent the operation of of presumption for any anterior time? The rule of twenty years, by analogy to the statute of Jac. 1., as to the limitation of entry or ejectment, prevailed as to bonds in Pennsylvania before any case had occurred under our limitation act, which gives twenty-one years; but it has been thought best not to depart from the twenty years. Twenty years then is the fixed period. It is the fixed limitation as to all debts, with the exception of trusts, which depend on other principles. It offered an insuperable defence to the debtor: one day beyond it is as much too late as one hundred years. The policy and justice from whence the presumption arises, are particularly applicable to judgments. We all know how often it occurs, that judgments remain without any entry of satisfaction, after the debt has been paid. This frequent occurrence has called for legislative interference, with respect to the lien of judgments limiting them to five years. This consideration recommends the adoption of the presumption as to judgments; for I am satisfied there are more cases of neglect to enter satisfaction when paid, than to cancel a bond when paid. The reasons, justice, policy, and convenience, are the same; and why should not the law be the same? I think it is, and has been so from a pretty early stage, and from the time consistency and form were given to chancery proceedings by that great founder of equity Lord Nottingham, and followed by the approbation of a no less celebrated chancellor, Lord PIardwicice. In Ch. Rep. 78, a bond of twenty-two years came to the hands of an executor, and forasmuch as the obligee, the testator, had lived till about seven or eight years past, and never demanded any interest, the chancellor considered the bond had been satisfied, and decreed the same to be delivered up; and if judgment was entered thereon, the same to be vacated. To this decree Mr. Francis has given the weight of a maxim in chancery. Fr. Max. in Eq. Max. 10, No. 5. This was long before the statute of Jlnne, for the ffcaendment of the law, which first gave the plea of solvit post •diem. Since that statute, as it would be a good defence at law, chancery has refused to order satisfaction to be entered, merely on presumption from length of time. But in Kemys v. Ruscomb, 2 Atk. 45, where a bill was brought against the representatives of a judgment creditor, for entering' satisfaction on a judgment of forty-two years’ standing, and presumed to have been paid from length of time, Lord Hardwicke dismissed the bill; for where a judgment is still standing out, and there is no satisfaction on the record, the court will not, merely upon the presumption from length of time, decree it to be satisfied, — especially where the statute for the amendment of the law, allows one to plead payment at law, as it is an old judgment. These cases are directly in point, and there is no dictum to the contrary to be found in the books. We may be assured of this, as, if there had been one, the industry of the counsel of the plaintiff in error would have brought it to light. If this presumption rests on the assumption of payment from length of time, and the reason of that presumption is, that a man ,is always ready to enjoy his own, it applies universally to all debts. The cases in the South Carolina Reports show that there the presumption is applicable to judgments. Mr. Peake, in his Treatise on Evidence, a valuable book (greatly improved in the new edition published in this city by references to American decisions,) puts bonds and judgments on the same footing. Twenty years,” says the author, “ is presumption of payment of a bond, and the same rule applies to a scire facias for execution on a judgment.” Peake’s Evid. 481.

In the reason of the thing, and from authority, it appears to the court, that the presumption of payment existed in this case, unless it was repelled by some circumstances accounting for the delay.'

This brings us to the second head of inquiry, — If the delay to prosecute the judgment for more than twenty years has not been, accounted for, or any evidence given from circumstances to be left to a jury, from which they, might account for the forbearance, was it the duty of the court to submit it as an open question for the belief of the jury, as to the actual payment ? On this subject, I need only refer to the opinion of Judge Gibson, in Henderson v. Lewis, 9 Serg. & Rawle, 379: “The rule is in the nature of a statute of limitation, furnishing indeed not a legal bar, but a presumption of facts, and, though not conclusive, yet prima facie evidence of it; and therefore sufficient of itself to cast the burden of countervailing proof on the opposite party. Where less than ■twenty years have intervened, no legal presumption arises; and the case not being within the rule, is determined on all its circumstances: among which, the actual lapse of time, as it is of greater or less extent, will have a greater or less operation; and then it is a matter exclusively for the consideration of the jury. But where • the legal presumption arises, it would, besides rendering its application in most cases difficult and uncertain, change its very nature and destroy all analogy to the statute of limitations, from which it is derived. The presumption is not subject to the discretion of a jury; .they are bound, where it operates at all, to adopt it as satisfactory proof till the contrary appears.55.

Now, taking the whole charge of the presiding judge together, as it ought fairly to be taken, the court did so charge. If there had been any circumstances, any thing but the lapse of time to* charge the jury on, that should have been left to the jury; but where there was none, the presumption of law on that fact is, that tire judgment was satisfied. The court did no more, and, if they had done less, they would have committed an error. On the twenty years unexplained, there was nothing to leave to the jury: they had no belief to exercise on it: it is because there are no means of belief or disbelief, the presumption of the fact arises: the presumption holds the place of particular and individual belief. It prevails, because the presumption of law is, that the obligor or eonuzor in that long time has lost his receipts and vouchers, or the witnesses who could prove the payment might be dead. The jury might not have believed, this court might not believe the fact of payment; but that specific belief is not necessary. For wise purposes the law has raised the general presumption. The laying down any other rule would be destroying all legal presumption. The position of the court below is justified by the opinion of all the judges in England, as in Grantwicke v. Simpson, 2 Atk. 144, it is said, “ that the judges have bound it down, as an irreversible rule, that if there be no demand for money due on a bond for twenty years, they will direct a jury to find it satisfied, from the presumption arising from length of time.”

The charge, therefore, is free from all error, unless some circumstances were given in evidence to repel this presumption. Without the existence of such circumstances, it was the duty of the court to direct the jury to find it satisfied. No such circumstance has been pointed out, unless it be the one which appears on the face of the record; that is, that one of the conuzors of this judgment had been defaulted on two nihils l’eturned. The court was not requested to give any opinion as to the effect of this against the administrators of the conuzors, who pleaded to issue; but if they had been requested to give any opinion on this, it should have been an opinion directly against the plaintiff. It was not a judgment where the defendant had notice to show cause why execution should not issue on the original judgment, when he had removed from the county; for when the sheriff returned, that he had nothing in his bailiwick whereby he could be summoned, this must have been so. It has not the effect of a judgment by confession; or where the party, being notified to show cause, declines it; this, as is contended, admits the fact. The reason of the presumption is, that payment was made and the vouchers lost. An acknowledgment by the party that it was not paid would repel that presumption; but here, how far a confession of judgment, or notice, or suffering judgment to go by one defendant, would affect the others, whose lands are intended to be reached by this proceeding, I am not called on to say. There is no such fact It is a fiction, when it is supposed that an absent unnotified debtor should bind his co-obligors, because he acknowledged that the debt was not paid, by not appearing to that proceeding of which he had no notice. This fiction would affect the interest of a third person. Fictions of law ought never to work injustice.

There are a variety of circumstances by which the presumption might have been repelled here; but the plaintiff did not attempt any explanation; such as insolvency of the obligors, or a state approaching to it, relationship of the parties, or the absence of the party who -has a right to receive the money due. It was the naked case of a judgment of more than twenty years’ standing, on which the presumption attached with all its force, in which case it was the duty of the court to charge the jury, as they have done. The plaintiff in error has not sustained any of his exceptions, and the judgment stands affirmed.

Judgment affirmed.  