
    William A. W. Mann vs. Reuben S. Manning.
    'The high court of errors and appeals will not grant a new trial, unless the preponderance of the testimony be greatly against the finding of the jury; especially where there was conflicting testimony, and no instructions called for on either side.
    
      Where the defence to an action on a bill single was the presumption of payment from lapse of time and other circumstances, it was held a defence purely within the consideration of a jury; so much' so, that a very extreme case of erroneous finding must be shown to warrant its being set aside.
    Where -the statute of limitations to a bill single was sixteen years, and to an action brought upon it nine years after it was due, the presumption of payment from lapse of time and other circumstances was relied upon as a defence ; it was held a serious question, whether the time elapsed was not too short, even with additional circumstances, to warrant such a presumption.
    The failure of the holder of a bill single, to sue upon it for three years after it was due, while the holder was in good circumstances, affords but slight presumption against him.
    The removal of a debtor to ■ another though neighboring state to that in which his creditor lives, repels the presumption, while such removal continues, growing out of the -lapse of time, against the creditor.
    The conduct of an alleged debtor, when a debt many years past due was presented to him for payment, in saying that he would make inquiries in a different state, to ascertain if the debt had not been paid, and if not, that he would pay it, and taking no steps upon this declaration ; held, to be a circumstance to rebut the presumption of payment from lapse of time, and other _ facts proved.
    In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.
    Reuben S. Manning sued William A. W. Mann in assumpsit, Upon two notes payable to Southall. The defendant plead payment to Southall before assignment; and on the trial the plaintiff read to the jury the notes sued on, in the words and figures, to wit:
    “$180. On demand, I promise to pay Field T. Southall one hundred and eighty dollars, for value received. Witness my hand and seal, this 19th February, 1837.
    W. A. W. Mann. [Seal.] ”
    
      “ Due Field T. Southall two hundred and thirty dollars, balance due for sales cotton. Witness my hand and seal this 2d June, 1837. W. A. W. Mann. [Seal.]
    “$230.”
    Also, the assignment on said notes in these words :
    “I assign the within note to R. S. Manning, for value received, this 2d-of April, 1844. F. T. Southall.”
    
      “I assign the within note’to R. S. Manning, for value received, this the 11th day of March, 1846. F. T. Southall.”
    By the witnesses for defendant it was shown that Mann, the defendant, left Haywood county, Tennessee, in 1849; that he was a man of property, having about him real estate, slaves, money, and other property; that he was prompt in the payment of his debts, and never in the habit of being sued. This was testified by several witnesses, who had known him twelve or fourteen years. It was also shown that Southall, the plaintiff’s assignor, left Haywood county in May, 1842; that he was then very much embarrassed and annoyed by his debts; that he was considered insolvent that what property he left was levied on by the officers to pay some of his debts, and that he never paid his debts until pressed to the limit of the law. One witness testified that, in 1842, Southall stated to him that he had neither money, notes, nor property, that he could pay his debts with; that he owed him $ 700 for cotton, and he (the witness) could never get one cent, either in property, notes or money.
    In June, 1842, Southall wrote a letter to Dr. Bruce, in which he states that he was left without one cent to support himself and children; “every thing has been taken and sold, and now I have to make a support as I can for myself and little children; ” — “I give up all, and have nothing to pay my debts with; ” — “ 0 what a dreadful situation to be,placed in, to be cut loose without money, or any property to support six motherless children!”
    In another letter to the same person, dated June 29, 1842, he speaks of having paid, a few days after the last letter, to a Mr. Newell, $800 in paper, and that he has a note on a Mr. Scar-brough for $ 500, and that he is trying to sell his land to pay his debts.
    Plaintiff then introduced witnesses, who proved that defendant stated, when the notes were presented by plaintiff, that he had no recollection of them, but that the signatures were his; that he would go to Tennessee and examine the books of his commission merchants, Posthletwaite & Co., and if he could not satisfy himself and plaintiff that the debt had been paid, he would then pay it. In 1843, Mann came to Southall’s house to see him on business. One of the firm of Posthletwaite & Co. testified, that, in 1836 and 1837, they purchased cotton from W. A. W. Mann, marked in the name of F. T. Southall, and that Mann received the amount of the purchase, as the transaction was in his name, and not in Southall’s.
    This being the substance of the proof, the jury found for the plaintiff; and a new trial being refused, Mann sued out this writ of error.
    
      Watson and Craft, for plaintiff in error.
    
      H. W. Walter, for defendant in error,
    Cited 3 How. 219; 4 lb. 338; 1 S. & M. 381; 7 How. 340; 5 S. & M. 21.
   Mr. Justice Thacher

delivered the opinion of the court.

In 1846 an action of debt was instituted by Manning upon two bills single, executed by Mann in 1837, in favor of Southall, and by Southall assigned to Manning in 1846.

Upon a plea of solvit post diem, the jury found for the plaintiff in the circuit court, and the cause is brought here upon the judgment of that court, overruling a motion for a new trial. The record presents to us but the question of fact, whether the jury found correctly upon the evidence. ■

It seems necessary to repeat that this court will not grant a new trial, unless the preponderance of the testimony be greatly against the finding of the jury, especially where there is conflicting testimony, and no instructions were called for upon the trial. 3 How. 219; 4 Ib. 338; 7 Ib. 340; 1 S. & M. 381; 5 Ib. 21.

The defence relied upon was, the presumption of payment from the lapse of time since the execution of the bills, together With additional circumstances tending to prove payment.

This presents a defence peculiarly within the consideration of a jury; so much, so, that a very extreme case of erroneous finding must be shown, to warrant its being set aside. It is a finding altogether upon presumptions which are perhaps better resolved by a jury than any less number of persons, where no question of law has arisen to confuse or mislead the jury.

The lapse of time in this instance, nine years, is very short by analogy to the statute of limitations, which governs instruments of the same date of these, to wit, sixteen years, since the statute of 1844, reducing the limitation to seven years, has not yet run so as to control such instruments. It is true that it is admitted that the lapse of time is not, of itself, sufficient to raise the presumption of payment; but it may likewise be seriously questioned whether the time is not too short, even with additional circumstances, to warrant the presumption of payment within that time.

The bills were executed in the state gf Tennessee, and Mann removed to Mississippi in 1840, and Southall in 1842. Mann was proved to have been at all times responsible for and prompt in his payments. It was not until 1840 that Southall’s pecuniary embarrassments appear to have commenced. During the period from the date of the bills, (and they were payable on demand, to the commencement of Southall’s money difficulties,) he may have had no occasion to collect their amount, and his not doing so up to this time, is not a strong circumstance against him. The presumption of payment is repelled during the time that Mann was in Mississippi, and previously to Southall’s removal there; for such presumption may successfully be resisted by the removal of a debtor to another state of the Union, though this be an adjoining state. Shields v. Pringle, 2 Bibb, 387; Daggett v. Tollman, 8 Conn. 168. There remain but four years, in which additional circumstances can be applied. The facts disclosed from this time, to be sure, tell strongly against Southall, but, nevertheless, they are sufficiently repelled by Mann’s conduct when the bills were presented him for payment by the assignee and holder. He declared that he would ascertain from Tennessee whether the notes had not been paid, and if not, that he would pay them. He took no steps upon this declaration. Eustace v. Gaskins, 1 Wash. 188; McDowell v. McCullough, 17 Serg. & Rawle, 51, 53. The jury may also have weighed Southall’s confession on one occasion, that he had not either money or notes wherewith to pay his debts, with his lamentations for the distressed condition of his six children, bereaved of their mother, and placed small reliance upon it.

Altogether we are not disposed to interfere with the convictions of the jury upon the evidence.

Judgment affirmed.  