
    Baker v. Morris’s Adm’r.
    May, 1839,
    Richmond.
    (Absent Brooks ana Parker. J.)
    Discovery — To Rebut Presumption of Payment — Answer. — In a suit in equity to enforce payment of a bona debt twenty-eight years after the right to demand it accrued, there being no remedy *under the circumstances of the case but in equity, the bill, to rebut the presumption of satisfaction arising from lapse of time, calls on the defendant to answer, whether the debt has been paid or not: Held, the defendant was prop-perly compelled to answer to that point.
    Same — Assumpsit—Plea of Statute of Limitations— New Promise. — Where assumpsit is brought at law. and the statute of limitations pleaded, the plaintiff may file a bill of discovery in equity, calling on the defendant to answer whether he has not made a new promise within the term of limitation, in order to use this matter, on the trial of the action at law, in avoidance of the bar of the statute, and the defendant shall answer the allegation of the new promise on oath.
    Laches — Bond Creditor — Case at Bar. — Testator bequeaths his daughter “all debts due him at his death from his several sons, by bonds, notes or other writings.” among which is a bond from bis son J. B. whom he appoints one of his executors ; this bond is delivered in 1807 by the executors to the legatee, then sole ; in 1808, she marries S. who dies in 1819 ; and in 1820 she marries M. and dies in 1833 ; the son and executor J. B. early and constantly denies his liability to pay the debt, and this is known to the legatee, and to both her husbands during her coverture : but no suit is ever brought or demand made on the bond till 1835, when a suit in equity is brought by M. as administrator of bis deceased wife, against the obligor, to compel payment of the bond ; in which the obligor is unable to shew any exemption from his liability to pay the debt: Held, upon the circumstances of the case, accounting for the long delay to prosecute the claim, the plaintiff is entitled to relief notwithstanding the delay.
    Same — Same—Excuse for Delay — Coverture.—In such case, the fact of the legatee having been under the disability of coverture during so great a portion of the time, is a circumstance to account for and excuse the delay.
    Chancery Practice — Interest beyond Penalty of Bond. —Full interest is given on the bond, though it exceed the penalty.
    Debt on Bond — Interest beyond Penalty of Bond— Damages,  — it seems, that in an action of debt on a bond at law, the surplus interest beyond the penalty may be given in the form of damages.
    In September 1802, Henry Baker, late of Winchester, sold and conveyed to his son John Baker part of lot No. 5, in that town, for ;£400. the consideration expressed in the deed ; of which the son paid ^100. and for the balance executed three bonds to his father, each in the penalty of 666 dollars 66 cents, with condition to pay 333 dollars 33 cents ; they were all payable on demand. Upon each of these bonds, there was found indorsed a ^credit for interest paid till the 17th March 1807, which was the day of the father’s death ; but these indorsements were made after the father’s, death.
    The father, by his will, devised to his son Henry part of the same lot, measuring thirty-eight feet front and extending back to an alley, and to his son Isaac another part of the same lot measuring the width of the testator’s then dwellinghouse in front, leaving a space between the parts devised to Henry and Isaac, which he desired should be reserved as a way common to them both ; and then he devised the residue of the same lot, being thirty-two feet front, to his son John, mentioning that it was the same he had before sold and conveyed to him. He then divided another lot, called the Brick-house lot, between his sons Abraham, John, Joseph, and Jacob ; giving to Abraham fifty-six feet front, charged with /200. to 'be paid to the testator's daughter Betsey ; to-John forty feet front, to Joseph fifty feet front, and the residue to Jacob. And then, after devising and bequeathing to his daughter Betsey other lots in Winchester, some bank stock, and the £200. charged on Abraham’s share of the Brickhouse lot, he added — “ I likewise bequeath to my said daughter Betsey all the debts due at my death from my several sous, as evidenced by bonds, notes or other writings, signed by them.” He appointed his sons Henry and John his executors, w'ho proved the will, and qualified as executors.
    The three bonds of John Baker to his father and testator, were found among the testator’s papers at his death; and they were inventoried as part of his estate, in the inventory signed by both executors, and returned to court, in the following words, viz. “ Three bonds executed by John Baker for ¿100. each to the testator Henry Baker, and bequeathed by him to Elizabeth Baker, which bonds are delivered up to her.”
    In 1808, about a year after her father’s death, Elizabeth Baker married Joseph Stover, into whose hands these *bonds of John Baker fell, but he never made any attempt to enforce payment thereof. Stover died in 1820, and his executor delivered the bonds to his widow, or to her second husband, as her property. She remained a widow about a twelvemonth, and then married William Morris. She lived his wife till 1833, and then died. During all this time, no demand of the debt due by the bonds was ever made. But Morris having taken administration of his deceased wife’s estate, and being unable to maintain an action at law on the bonds by reason of tl\e obligor being one of the executors of the obligee, exhibited a bill in chancery, in the circuit superior court of Frederick, against John Baker, the obligor, to enforce payment of the debt due on the bonds.
    The bill was exhibited in 1835. After setting forth the facts above stated, and alleging that the debt due upon the bonds had never been paid, and that the defendant, during the year of his sister’s widowhood,, had requested her to get them from the executor of her first husband Stover, saying that he might be pressed for the money, and could pay it more conveniently to her, — -the. bill stated various reasons to account for the long delay to demand payment of the debt, and to repel the presumption of payment arising from lapse of time; namely, that mrs. Morris, before her first marriage, was unwilling to enforce payment of the debt from her brother by harsh measures; that after her marriage with Stover, he forbore to demand the debt, because he was wealthy and did not want the money, and because the defendant Baker, soon after his father’s death, brought a suit in. chancery against his coexecutor and all his colegatees, Stover and wife among the rest, to recover a large sum of money which he claimed as due to him from his father’s estate, for services rendered by him to his father in his lifetime, which suit was pending till November 1818, when the bill was dismissed, shortly before Stover’s death ; that Stover left his widow so well ^provided for, that she did not want the money during her widowhood ; and that the plaintiff, after he married her, was unwilling to go to law with his brother in law, especially as it would have been very unpleasant to his wife, whose mind was somewhat affected, even before she became insane, and for the last five years before her death, she was actually of unsound mind. And the bill called upon the defendant to answer and say, whether or no he had paid the debt ? and if he had, when, how and to whom ?
    The defendant, in his answer, repelled the circumstances alleged in the bill, to account for the delay in making and prosecuting the demand of the debt due on the bonds,, and to rebut the presumption of satisfaction arising from the lapse of time ; he insisted, that near thirty years having elapsed since the bonds came into the hands of his sister, then a feme sole, and no demand having ever been made upon them, they ought to be presumed in law to be paid; and he relied on this legal presumption as a full and sufficient defence to the plaintiff’s claim ; but he made no answer to the interrogatory, whether he had in fact paid the debt or not.
    Exception being taken by the plaintiff to the sufficiency of the answer in that particular, the court sustained the exception, and ordered the defendant to put in a full answer to the bill.
    Whereupon, he filed an amended answer, in which he admitted, that he had never paid the money for which the bonds were given by him to his father. But he said, that he had been in possession of the property for the purchase money of which they were given, paying his father rent for the same, some two or three years before his purchase, and his father, having occasion for money, proposed to convey the property to him, upon the following terms ■ — that, fixing the price of it at .¿400. he ■ should pay his father ¿100. in cash, *and should pay him interest on the balance of ¿300. during his life; a proposal which the defendant, and all the family who were privy to the transaction, understood as nothing more than an anticipation of what his father intended at his death, namely, to give him, as well as his two other sons, the parts of the lot No. 5, of which they were respectively in possession, he paying interest on ¿'300. instead of rent which his brothers paid for the parts of the lot held by them ; and when the arrangement was carried into execution by the conveyance of the property to him, his bonds for the ¿300. were taken and given, only to secure payment of the interest thereof to his father during his lifetime; he declaring, in the presence of the subscribing witnesses to the bonds and the conveyance, and of his son Joseph who drew the instruments, that he was only to draw interest upon the bonds during his life, and at his death they were to be returned to the defendant; which facts could have been proved by those persons while they were living, but they were all dead long before this suit was brought. That, accordingly, his father, by his will, devised to his sons Henry and Isaac the parts of the lot No. 5, of which they had been in possession paying him rent during his life ; and devised to him the part that had been conveyed to him; a devise of property already conveyed, for which the testator could have had no inducement, but to fulfil the contract on his part, on which the purchase had been made by the defendant. That when the father’s will came to be examined, all the family, including' the daughter (the plaintiff's intestate), being well acquainted with the father’s intention in the transaction upon which the bonds were executed, understood the devise to the defendant of the same property for the price of which the bonds were given, and which had been before conveyed to him, as intended by the testator to operate as a surrender of the bonds ; and the acquiescence ^of the daughter and of both her husbands in this construction of the will, appeared by thefact, that neither she nor they, during twenty-six years from the testator’s death in 1807 till her death in 1833, ever demanded the debt or the interest upon it; in which, the defendant had no doubt, both the husbands were controlled by their wife’s knowledge that the bonds were not in truth her property. That the bonds were not specially mentioned and bequeathed by the testator’s will to his daughter : she claimed them under the general bequest of “debts due to the testator from his sons, by bonds, notes, or other writings, signed by them and besides these bonds, there were bonds of the testator’s sons Isaac and Joseph, on which the bequest could operate, which bonds were delivered to the daughter and were collected by her. That the defendant’s bonds were not delivered by the executors to to her: she had access to the testator’s papers, and took possession of the bonds in question, without their knowledge at the time-; but she afterwards, at different times, admitted to some of her brothers, that these bonds were not hers, and said they should be restored to the defendant ; and though three of the brothers were dead, he expected to prove by one who yet survived, that she made a declaration to that effect during her widowhood. And adverting to the inventory of the testator’s estate returned to court, and signed by both executors, wherein these bonds are mentioned, as bequeathed and delivered up to her, -the defendant said, that the inventory was prepared by his coexecutor Henry Baker under advice of counsel, by whom that part of the inventory was written ; and, without pretending to remember the incident, he had no doubt, that his brother having shewn him the inventory as a paper prepared according to advice of counsel, and told him his signature was necessary, he signed it without any examination of it ; for from the death of his ^father, he had uniformly contended, that the bonds ought, rightfully, to be given up to him. And upon the whole he insisted, that under the circumstances, — after such long delay, acquiescence and abandonment, — equity ought not to enforce the claim.
    The parol evidence on the part of the plaintiff consisted in the depositions—
    1.Of G. Happ; who deposed, that the three bonds of John Baker were put into his hands for collection by Joseph Stover (the first husband of mrs. Morris) about a year before his death, but the witness made no effort to collect them ; Stover would not have suit brought on them, “ for fear of producing a split in the family his wife said, she was anxious to have the money collected, and was displeased that she had not got an equal share of her father’s estate. The witness also said, that she was for many years affected, periodically, by pain in the head, which for a time disordered her mind ; the affliction grew more and more severe as she grew older ; and about two years after her marriage to her second husband Morris, she became insane, so that it was necessary to confine her.
    2. D. Stickley ; who deposed, that he had had frequent conversations with mrs. Morris, on the subject of the bonds of Isaac Baker and John Baker (which he understood had been bequeathed to her by her father’s will), during the life of her first husband Stover, during her widowhood, and after her marriage with Morris; in which she said, that some of her friends wished her to forgive the bonds, but she had refused to do so; she intended to make her brothers pay the amount due on them ; perhaps the money might be of use to her on a rainy day ; her first husband had told her, she might do as she pleased with the bonds.
    3. Rachel Stickley ; who deposed, that she lived with mrs. Morris, for many years during her first husband’s life, during her widowhood, at the time she married *Morris, and for some months after. The witness heard her say frequently, that she had held the bonds in question from the time of her father’s death ; that he had bequeathed them to her ; that her brother ought to pay her the bonds, but that he said he 'would not pay her, because he did not consider them just ; that she did not stand in need of the money, but she thought her brother ought to pay it, as it was given her by her father. The witness also heard her say, both before and after her marriage with Morris, that she would as lief it should fall into the hands of the Baker family as into the hands of strangers, as she had no children.
    4. J. Spengler, the administrator of Stover the first husband of mrs. Morris; who deposed, that Stover died in November 1819 ; that he found the bonds in question among Stover’s papers ; he was advised by counsel that they survived to his widow; and, as well as he could remember, he delivered them to Morris shortly after he married her.
    The evidence for the defendant consisted in the depositions—
    1. Of G. Reed: who deposed, that in a casual conversation between him and Henry Baker the elder, in 1806, John Baker happening to pass through the room where they were sitting, Henry Baker told the witness, that that son had done him more service than any other child he had, and that he held his paper or bonds for a sum of money, but never intended to make him pay the money, as he had relieved him out of his difficulties ; that a few days after this conversation, the witness told John Baker what his father had said, and John requested him to make a memorandum of it, which the witness did at the time. He produced the memorandum, which was in these words: “1806, Feb. 26. Memorandum made at the request of mr. John Baker. In conversation with his father {as we often had on elections and other matters) sitting' in his house, mr. John *Baker passed through the room where we were sitting, and mr. Baker remarked, that that boy had done him more service than any other child he had, and that he held his paper for a sum of money, but that he never intended to make him pay the money, as he had relieved him out of his difficulties.” The witness said, he had forgotten that he had the memorandum till very recently, when, beingreminded of it by John Baker, he had looked for and found it.
    2. William Baker, a nephew of mrs. Morris and of John Baker ; who deposed, that in 1809, he went to his aunt to get her to lend or give him some money to go into business ; she gave him a trivial sum ; at the same time, taking some papers out of a drawer, she said they were notes of his uncle John, which she would not give him, saying that they belonged to him and that she intended to give them to him.
    3. Henry Baker the younger, son and one of the executors of Henry the elder; who deposed, that on the day when the conveyance made by his father to John Baker, and the bonds of John Baker to his father, were executed, while the parties were engaged in the business, the witness went into the room on some business with Lewis Hoff or Isaac Baker (who were subscribing witnesses both to the deed and the bonds): he found his brother Joseph Baker (who drew the deed and one of the bonds) also present: and on the same day, in conversation with Joseph Baker, Joseph said, that the bonds were only sham bonds, that it was only intended that he (John Baker) should pay the interest of the bonds as rent, that his father might as well give them up now as at a future day, which he would do without doubt. Lewis Hoff and Isaac Baker, the subscribing witnesses to the deed and the bonds, and Joseph Baker, were all dead before this suit was brought: Isaac Baker died in 1830, Hoff in 1832, and Joseph Baker in 1833. The *witness further deposed, that his sister, mrs. Morris, after the death of her first husband Stover, and during her widowhood, made a visit to Winchester; and during her stay there, she told him, that she had three bonds of John Baker in her possession, which she wished to deliver up to him, if he would go up and get them, meaning if he would go up home with her. That the part of the lot No. 5, conveyed by his father to John Baker, for the balance of the purchase money of which the bonds were given, had been held by his father at ;£800. but he sold it to John for ^400. That the credits on the bonds for interest to the 17th March 1807, were indorsed by Isaac Baker, after his father’s death : there was an account between his father and John Baker kept by his father, upon the settlement of which account, John was credited upon his bonds for the interest; the witness was told by his father that that was the way he received the interest on the bonds.
    4. J. Hieronimus ; who deposed, that in a conversation between him and Henry Baker the elder, some three years before his death, Henry Baker declared his intention to forgive a large balance due him from his son Jacob Baker ; and added, that as there had been some jealousy between his sons Jacob and John, he intended to treat John in the same manner, by giving him up, at some future day, claims he had on him for the purchase of the house and lot which he had sold him.
    5. Lliza Price ; who deposed, that during mrs. Morris’s widowhood, on her first visit to Winchester after her first husband Sto-ver’s death, the witness heard her speak of the bonds in question ; and she repeatedly said, that the bonds she had in her possession, mentioned in her father’s will, were John Baker’s, and she wished her brother John to have them, as they were not hers ; that it was her wish he should receive them at that time, but there was a little difference between her and a member *of her brother John’s family, which was the only reason that she had not gone there and given the bonds up, as the member of John’s family alluded to might think she wished to cringe to them. Some three or four years after her marriage with Morris, she mentioned the subject again, and seemed to regret that she had not given the bonds to her brother John at the time first mentioned ; she said, they had been now taken out of her possession, but if ever she could lay her hands on them again, he should have them. At the time of this last conversation, her mind was sound.
    6. John Hoff; who deposed, that the defendant John Baker, talking of the bonds in question shortly after his father’s death, and frequently afterwards, always said he would never pay them.
    It appeared, that the defendant John Baker brought a suit in chancery against his coexecutor Henry Baker and his colega-tees, to recover a debt which he claimed of his father’s estate for services rendered his father in his lifetime; which suit was brought in 1808, and the bill was dismissed in November 1818. And the plaintiff exhibited the answers of Joseph, Jacob and Henry Baker, and of Stover and wife, in that suit; shewing that all those defendants mentioned the bonds in question in their answers, and represented them as evidences of debt actually due from their brother John to their father, and that Stover and wife then held and claimed the bonds as their property. He exhibited also a deposition, taken in that cause, of the same deponent G. Reed above mentioned, for the purpose of discrediting his evidence in this cause.
    The circuit superior court, upon the hearing, decreed, that the defendant should pay the plaintiff 999 dollars 99 cents (the amount of debt due upon the three bonds) with interest from the 17th March 1807 till paid, and costs. From which decree, this court, on the petition of the defendant, allowed him an appeal.
    *Leigh, for the appellant, contended, 1. That the defendant was well entitled to rely on the presumption of satisfaction of the debt arising' from the length of time during which no demand of it had been made, without answering the interrogatory in the bill whether the debt had been paid or not, and he ought not to have been required to help the plaintiff’s case by making a discovery on that point. The bill sought to recover a debt due on old bonds, demanded now for the first time ; and the only ground of equitable jurisdiction was, that the obligor being one of the executors of the obligee, actions could not be brought on the bonds at law. Equity, doubtless, might for that reason entertain the bill ; yet the claim was in its nature purely legal, and ought to be prosecuted in equity in exact analogy to an action at law : the case should be viewed in equity in the same light as if actions had been brought on the bonds at law, and this were a bill brought in equity for a discovery of matter to rebut the legal presumption of satisfaction. If the practice adopted by the court of chancery in this case should be approved, every action on a stale bond hereafter brought, would be accompanied by a bill in equity for a discovery to rebut the presumption of satisfaction, or by interrogatories addressed to the defendant’s conscience under the provision of the circuit superior court law, Supp. to Rev. Code, ch. 109, § 68, p. 161. Nay more, the statute of limitations, which was intended to put an end to litigation, would, in effect, give rise to yet more troublesome litigation in equity, for the discovery of matters which might avoid the statute. He said, the general inconvenience to which the practice would lead, should make the court cautious against the toleration of it in order to give relief in the particular case. And he contended for this proposition — that where laches appeared on the face of the plaintiff’s bill, the defendant should not be held to answer to matters which might entitle the plaintiff to ^relief notwithstanding the laches, when without such discovery relief would be denied. He cited Phillips v. Prevost, 4 Johns. Ch. Rep. 205 ; Lansing v. Starr, 2 Johns. Ch. Rep. 150; Jermy v. Best, 1 Sim. 373 ; MacGregor v. East India Co., 2 Sim. 452 ; 2 Cond. Eng. Ch. Rep. 187, 496.
    2. He insisted, that this was a stale demand, which equity should not be active to enforce. The bonds came to the hands of mrs. Morris, then a feme sole, in 1807 : there was nothing to prevent her from bringing suit on the claim immediately; but, whether from doubts in her own mind as to the real justice of it, or from whatever cause, she did not prosecute it. Her first husband never prosecuted it; she did not prosecute it during her widowhood, when she was again sui juris ; and her second husband never asserted it during her life. There was at all times a person having full capacity to assert, and an interest to assert, the claim. It was never even demanded. It must be admitted, that the precise ground of defence stated in the defendant’s answer was not made out by the evidence ; namely, that the bonds were given by him and taken by his father, only to secure payment of the interest during the father’s life, with an understanding that they were to be given up at his death. But enough appears to shew, that it might probably have been proved, if this suit had been brought while the two subscribing witnesses to the transaction, and while Joseph Baker who drew the instruments, were living, and while mrs. Morris was living, from whom a discovery might have been had by a cross bill ; and if such a state of the case had been proved, it would have been hard to resist the equity of the defendant to be relieved from the bonds. The delay to assert the claim deprived the defendant of his defence, even if it were founded in truth, because the death of the persons most likely to be conusant of the truth, deprived him of the evidence. And during *the whole time, the parties entitled to assert the claim, knew that the defendant denied the justice of it, while they never gave him any reason to believe that they insisted on it. The first husband Stover would not have suits brought on the bonds, for fear of producing “a split in the family his wife told mrs. Stickley, that her brother ought to pay her the bonds, but “that he said he would not pay her, because he did not consider them just;” and Morris after his marriage with her, as he says in his bill, was unwilling to go to law with his brother in law, especially as it would have been very unpleasant to his wife. All the parties, then, knew, from the first, that the claim would be contested; and, with this knowledge, abstained from bringing suit, and never made even a demand of the debt, for twenty-eight years. In other words, they acquiesced, during that whole time, in the defendant’s claim to exemption from the obligation of these bonds. But not only was there a wilful delay to assert the claim, and an acquiescence in the defendant’s pretensions that it was not just, but mrs. Morris was conscious, that those pretensions were not unfounded. Eor, though she sometimes asserted her right to the money, and complained that it was withheld from her, yet at other times, and especially during her widowhood, when she was sui juris, she declared, that the bonds belonged to her brother, and that she would surrender them to him : she told her nephew William Baker, as early as 1809, that the bonds belonged to her brother John, and that she intended to give them to him : and during her widowhood, she told mrs. Price that the bonds were not hers and she wished her brother John to have them, and her brother Henry that she had the three bonds of her brother John in her possession, which she wished to deliver up to him, if he would go home with her and get them. Here, then, he said, was a stale demand founded on a right that accrued twenty-eight years before it
    *was asserted ; all the parties, successively entitled, had, during all that time, slept upon their rights ; knowing that the claim was contested, they had acquiesced, during all that time, in the defendant’s refusal to pay the debt, and in his denial of its justice ; and the party whose title the plaintiff was now asserting, had abandoned it some sixteen years before the plaintiff’s suit was brought. Though the defendant admitted that the debt claimed on the bonds had not been paid, so that the lapse of time could not raise a presumption of payment, it might yet afford a presumption against justice of the debt. Christophers v. Sparke, 2 Jac. & Walk. 222. At any rate, he said, this was a case in which a court of equity should not be active to give relief. Smith v. Clay, 3 Bro. C. C. 639, in note; Deloraine v. Browne, Id. 633, 646 ; Jones v. Turberville, 2 Ves. jun. 11; Hercy v. Dinwoody, Id. 87 ; Parks v. Rucker, S Leigh 144 ; Carrv. Chapman, Id. 164 ; Hayes v. Goode, 7 Leigh 452.
    3. He submitted, that if it was right under the circumstances of the case to give any relief at all, the court should have decreed only the principal of the debt, and should, on account of the laches, have refused to allow any interest; on the principle on which the accoun t of profits was denied -in Acherley v. Roe, 5 Ves. 565. Or, on the principle of Pickering v. Ld. Stamford, 2 Ves. jun. 272, 581, interest should have beén allowed only from the filing of the bill.
    But 4. he insisted, that if interest ought to have been allowed, yet the decree was erroneous in giving interest beyond the penalty of the bonds : that in the naked case of a claim on a bond in a penalty conditioned for the payment of money, interest could not be recovered beyond the penalty, either at law, Ld. Lonsdale v. Church, 2 T. R. 388, overruled in Wilde v. Clarkson, 6 T. R. 303 ; 1 Was. Saund. 58, n. 1; Downman v. Down-man’s ex’ors, 1 Wash. 26 ; Ragsdale ex’or v. Balte ex’or, 2 Wash. 201; Atwell’s adm’r v. .Towles, 1 Munf. 175, or in equity, Bromley *v. Goodere, 1 Atk. 75 ; Tew v. Earl Winterton, 3 Bro. C. C. 489 ; Knight v. Maclean, Id. 496. The cases in which interest had been allowed upon judgments on bonds, beyond the penalties of the bonds on which they were recovered, stood on a different reason ; M’Clure v. Dunkin, 1 East 437 ; Roane’s adm’r v. Drummond, 6 Rand. 182; Clark’s adm’r v. Day, 2 Leigh 172 ; Godfrey v. Watson, 3 Atk. 81. There was an instance of a bond in the penalty of .£120. with condition to pay ^120. where interest was allowed beyond the nominal penalty, which was in truth not a penalty ; Frkncis v. Wilson, Ry. & Mood. 105 ; 21 Eng. C. L. R. 391. In the cases where interest beyond the penalty of a bond had been allowed in equity, it would be found, that the creditor’s claim was not founded on the bond alone, but on some other contract besides, as a mortgage or special agreement, Clark v. Ld. Abingdon, 17 Ves. 106 ; Jeud-wine v. Agate, 3 Sim. 129 ; 5 Condens. Eng. Ch. Rep. 45, or that the debtor, by injunction or other proceeding, had delayed the creditor’s recovery of the debt, and there was no fault on his part, Grant v. Grant, 3 Russ. 598 ; 3 Sim. 340; 3 Condens. Eng. Ch. Rep. 533 ; 5 Id. 340. The case of Tennant’s ex’or v. Gray, 5 Munf. 494, stood alone : there, while the court held that the plaintiff could not recover interest beyond the penalty, as part of the debt due on the bond, it seemed to sanction the recovery of the surplus interest in the form of damages. -
    Patton, for the appellee,
    maintained, on the 1st point, that the defendant was bound to answer the interrogatory in the bill, whether he had paid the debt or not. He said, a plaintiff in chancery had a right to obtain from the defendant’s own acknowledgment, evidence of facts material to his case; and whether the bill were a bill for discovery merely, or a bill for discovery and relief, the plaintiff was equally entitled to the discovery he asked. This was the general rule: there were exceptions *to it, but the present case was not within the reason of any of them. Here, the bill was for discovery and relief: the defendant was bound to answer all the allegations of the bill shewing the plaintiff’s right to relief; as much bound to answer the allegation that he had not paid the debt, as any other. Lapse of time was only presumptive evidence of payment; and if in a suit to recover a bond debt, either at law or in equity, the defendant would rely on that presumptive evidence of payment, he must plead payment; else, there could be no issue between the parties to which the evidence could apply. The defendant’s difficulty in this case was, that if he alleged payment, either by plea or in his answer, he would have been bound to swear to it; which he could not do without forswearing himself ; and therefore, he wished to rely on the lapse of time as evidence of payment, without pleading payment. But a party admitting the original obligation to pay (as the defendant, did in his first answer), could never rely on lapse of time as presumptive evidence of payment. Livingston v. - Livingston, 4 Johns. C. R. 287. He said, the defence founded on lapse of time as proof of payment, ought not to be confounded with the bar of the statute of limitations : where the statute applied, it was immaterial whether in fact the debt had been paid or notin the other case, the time being merely presumptive evidence of the fact of payment, the presumption might be rebutted by a variety of circumstances, much more by an admission of the debtor that the debt was still due. Oswald v. Leigh, 1 T. R. 271; Stark. Ev. part 4, p. 1090; Christophers v. Sparke, 2 Jac. & Walk. 223-234. But even in the case of a bill filed for discovery to support a suit or defence at law, it was settled, that a party should be compelled to answer and admit facts which might defeat his claim or repel his defence at law ; and in the strong case of the defence of the statute of limitations, the defendant might be compelled, *in equity, to admit a new promise which would avoid the bar of the statute. The principle was stated in Kane v. Bloodgood, 7 Johns. C. R. 134 ; Anon. 3 Atk. 70 ; Jones v. Pengree, 6 Ves. 580 ; Baillie v. Sibbald, 15 Ves. 185 ; Cork v. Wilcock, 5 Madd. Rep. 328; Goodrich v. Pendleton, 3 Johns. C. R. 384. In the case of Ransing v. Starr, cited for the appellant, it was impossible that chancellor Kent, who decided Kane v. Bloodgood and Goodrich v. Pendle-ton could have intended to go the length the appellant’s counsel supposed : and, indeed, in that case, the new promises and payments alleged by the bill to have been made within six years, were expressly denied by plea and answer; and the only point of discovery called for by the bill to which no answer was given, was the origin and consideration of the note on which the action at law was founded, which could constitute no support for the plaintiff’s action, or answer to the statute of limitations. If, then, a party might be compelled to discover á fact, which would avoid the bar of the statute of limitations, otherwise a complete defence at law, much more should he be compelled to discover that he had not paid a debt which he sought to defeat by the mere presumption of payment arising from lapse of time. And upon the general principles of equity pleadings, he said it was plain, that the defendant was bound to answer all the allegations of the bill, and among the rest, the allegation that the debt had not been paid. In Cook-son v. Eliason, 2 Bro. C. C. 252, lord Thur-low laid down the rule, that a party submitting to answer, must answer fully. The rule had been modified by subsequent cases, so as to admit of some exceptions, while it was still recognized as the general ruleand in the more recent cases, it seemed to be the opinion of the court of chancery of England, that it ought never to have been relaxed. Newman v. Godfrey, 2 Bro. C. ,C. 332 ; Shepherd v. Roberts, 3 Bro. C. C. 239 ; Jacobs v. Goodman, Id. 487, in *note ; Jerrard v. Saunders, 2 Ves. jun. 454 ; Marquis Donnegal v. Stewart, 3 Ves. 446; Fenton v. Hughes, 7 Ves. 287 ; Taylor v. Milner, 11 Ves. 41 ; Dolder v. Ld. Huntingfield, ‘ Id. 283 ; Eaulder v. Stewart, Id. 296 ; Shaw v. Ching, Id. 303 ; Rowe v. Teed, 15 Ves. 372. In the case of The Methodist Church v. Jaques, 1 Johns. C. R. 74, chancellor Kent, after reviewing the cases, stated, as the result of them all, that the rule of lord Thurlow in Cookson v. Eliason was still the recognized rule in England, subject to particular exceptions; as, for instance, where the bill prayed an account of partnership, and the defendant denied the partnership ; or where the defendant was a fair purchaser without notice for a valuable consideration ; or where the defendant denied some allegation of the bill, which not being true, the plaintiff was left without any title to relief, even though the matters of discovery were fully answered. And to this last class of exceptions belonged the case of Phillips v. Prevost, cited by the appellant’s counsel.
    As to the 2nd objection to the decree, that the laches of the plaintiff, and of all the parties who had had a right successively to assert the demand, their acquiescence in the defendant’s refusal to pay the money, and the abandonment of the claim by mrs. Morris during her widowhood, ought to close the door of equity against the relief now sought ; he said, that, considering this as a suit in equity to enforce a legal demand, the obligation of which still continued, though the legal remedy could not be resorted to by reason of the relation of the parties, the case was to be determined upon the principles of a court of law ; and, surely, not one of these points of defence would have been available at law, when it was once proved that the debt had never been paid. The general principles stated in Smith v. Clay, Hercy v. Dinwoody and Carr v. Chapman, were incontrovertible ; but it was admitted, in those cases, and in all cases of the same class, that every case of the kind Jimust depend upon its own peculiar circumstances; and without desiring to mitigate the strong language of lord Camden in Smith v. Clay, except as he had himself explained it, and applying the reasoning of that case to the case before the court, considered as a suit to enforce a legal right on a legal obligation, he was willing that every presumption, in favour of every fact which would have been a valid defence at law, should be regarded as true, if it was not rebutted by facts and circumstances proved in the cause. There was no arbitrary discretion in a court of equity to refuse relief on themere ground of delay : a delay of twenty or of a hundred years would not close the door of a court of equity against the claim, if the delay had been occasioned by the defendant’s own act, or if it could be accounted for by the plaintiff’s disability, or if it had in no degree impaired any defence which the defendant originally had. In Bur-well’s ex’ors v. Anderson, 3 Leigh 348; Pickering v. Ld. Stamford, 2 Ves. jun. 272, 581 ; Arden’s ex’ors v. Arden’s ex’ors, 1 Johns. C. R. 312, and many other cases, relief had been given even against decedents’ estates, and for the settlement of executors’ accounts, after as great and greater lapse of time than had occurred in this case. He then entered into an examination of the evidence, for the purpose of shewing, that the defendant had no ground for his pretensions that these bonds were given by him, and taken by his father, only to secure payment of the interest on the money during the father’s life, and that the father, by his will, intended to bequeath the bonds to him, and not to his daughter ; that he never set up such pretensions till he filed his amended answer; that the parties had never acquiesced in those pretensions, and, for aught that appeared, never heard of them ; that mrs. Morris never abandoned her claim to the money ; and that the defendant had not been deprived, by the delay in asserting the claim, of any testimony which could have been *of any avail to his defence. He remarked, that the defendant in his first answer relied on grounds of defence inconsistent with those detailed in his amended answer ; which alone should suffice to condemn his new pretensions. And as to the delay of the parties to assert the claim, that was accounted for, by the fact that the defendant had, in 1808, brought a suit against his co-executor and his colegatees to recover a debt claimed by him of his father’s estate for services rendered to his father in his lifetime, and if he had succeeded in that suit, the debt due on these bonds might have been extinguished; and this suit was depending till 1818. Add to which, mrs. Morris was under the disability of coverture, from 1808 till 1819 ; and again from 1820 till her death in 1833; and during this disability, her rights could not be affected by delay, nor was she capable of destroying them by any acts of acquiescence or abandonment, even if such acts had been proved. Bailey v. Jackson, 16 Johns. R. 210; Dunlop & Co. v. Ball, 2 Cranch 180; Waller v. Armistead’s adm’rs, 2 Leigh 11; Hatch v. Hatch, 9 Ves. 292; Christophers v. Sparke, 2 Jac. & Walk. 223.
    3. If the court was right in decreeing the principal, it was right in decreeing interest too. In Jones ex’or v. Williams, 2 Call 103, 106, Pendleton, P., said, “it was natural justice that he who has the use of another’s money should pay interest.” In Jones v. Turberville, 2 Ves. jun. 14, lord commissioner Ashhurst said, that one of the objections to entertaining stale demands, was, that “ if a man was liable after such a length of time, he was liable for interest also.” In Bur-well’s ex’ors v. Anderson, 3 Leigh 348, this court, while it had some difficulty in entertaining the bill at all, and refused to interfere with the general frame of the executor’s account, because of the staleness of the demand, yet charged the executor with interest which had been omitted in the audited account. And in Arden’s ex’ors v. Arden’s ex’ors, before *cited, chancellor Kent decreeing a legacy after a great lapse of time, because of the disability of the legatee, decreed interest also, and recognized the right to interest wherever the principal was due.
    4. He admitted, that according to the course of decisions in England, in equity as well as at law, interest could not, in general, be carried beyond the penalty of the bond ; but the courts, in modern cases, had been astute to lay hold of any circumstance which would enable them to do full justice, without regard to the technical rule that limited the recovery to the penalty. In 1 Wms. Saund. 58, n. 1, serjeant Williams, speaking of this rule, said— “ If by any contrivance of the debtor, he does in fact withhold payment, upon what principle of law or honesty are a jury not to give the obligee interest by way of damages for the detention of the debt, in this case as well as in the case of bills of exchange or promissory notes, or the like, where interest has always been given when payment has been refused ? In all actions of debt, the judgment is to recover the debt and nominal damages for the detention of the debt; but if the circumstances of the' case be such as to prove to the satisfaction of the jury that the plaintiff has sustained a real damage by the detention of the debt, there seems to be no reason or authority against the jury giving such damage in addition to the penalty of the bond.” In Tennant’s ex’or v. Gray, 5 Munf. 494, this court (as the appellant’s counsel admitted) sanctioned the giving of the surplus interest beyond the penalty, in the form of damages. That case, he believed, had been followed in practice ever since. And he said, the supreme court of New York had held, in general terms, that interest beyond the penalty was recoverable, in Smedes v. Hooghtaling, 3 Caines’s Rep. 48.
    The case has been argued, as if the legal obligation of the bonds in question was in full force, and the object of the suit was to enforce that obligation. But the *obligee appointed the obligor his executor, and thereby extinguished the legal remedy on the bonds, though, by the statute 1 Rev. Code, ch. 104, § 57, p. 389, the debt was not extinguished. It was a debt of the defendant to his testator’s estate ; it was assets in his hand, which he ought to have applied according to the directions of the will; and the will bequeathed the debt specifically to the testator’s daughter. The delivery of the bonds to her, was an assent to the legacy ; and the executor who himself owed the debt, could not allege want of assets to pay it, unless the money was wanted to pay debts of his testator, which is not pretended. As soon as the defendant qualified as executor of his father, he became bound, not only as obligor in the bonds, but in his executorial character, to pay money he owed his father’s estate to his' sister. This suit, therefore, was not merely a suit in equity upon the bonds, but it was a bill in equity for a specific legacy, against the executor who was chargeable for it. This view of the case, he said, while it nowise weakened the argument for the appellee on the other points, removed all difficulty in regard to the question whether interest should be given beyond the penalty of the bonds.
    
      
      He decided the cause in the circuit superior court.
    
    
      
      Discovery — To Rebut Presumption of Payment— Answer. — The principal case Is cited in Kyle v. Kyle, 1 Gratt. 532. See monographic note on “Bills of Discovery” appended to Lyons v. Miller, 6 Gratt. 427.
    
    
      
      Laches. — See monographic note on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
    
      
       Chancery Practice — Interest beyond Penalty of Bond. — The principal case is cited in Tazewell v. Saunders, 13 Gratt. 367. Tile cases upon this subject are collected in monographic mofe on “Interest" appended to Fred v. Dixon, 27 Gratt. 541.
    
    
      
       Debt on Bond — Interest beyond Penalty of Bond-Damages. — The principal case is cited in Perry v. Horn. 22 W. Va 385.
      Tennant v. Gray, 5 Munf. 494, is an express authority in favor of the right at law to recover interest beyond the penalty in the shape of damages.
    
   TUCKER, P.

The first objection made to the proceedings in this case, is, that the defendant was erroneously compelled to answer whether he had paid off the bonds or not. I am of opinion that this objection cannot be sustained. There seems to have been at one time a doubt, whether a mere bill of discovery would lie, for the purpose of compelling the defendant in an action at law, who had pleaded the statute of limitations, to answer whether he had not made a new promise within five years, in order to avoid the bar. In my early practice, judge Carr dismissed a bill which I filed for that purpose. It seems, however, that the practice has been recognized, and sustained by various *cases, Cork v. Wilcock, 5 Madd. R. 328; Baillie v. Sibbald, 15 Ves. 185 ; Hindman v. Taylor, 2 Bro. C. C. 7. And it is in perfect conformity with the general principle, that where the party cannot establish his case at law by other means than an appeal to the conscience of the defendant, he is entitled to make that appeal. Mitf. Plead. 130, 148 ; Madd. Ch. Prac. 161, 167. Although, therefore, the defendant pleads at law the bar of the statute, yet if the plaintiff avoids the bar by replying a new promise within five years, he may by bill of discovery compel the defendant to answer whether he has made such a promise or not. The case of MacGregor v. The Bast India Company, 2 Sim. 452, so far from impugning this doctrine, seems to me to confirm it ; for it admits, by strong implication, that if the bill had alleged a new promise, and that the defendants had documents in their possession, which would prove it, the defendants must have answered. But if the discovery is compelled in aid of a trial at law in such case, much more should it be enforced, where the bill is filed for relief, and the plaintiff, apprehending the bar of the statute, charges a particular special promise to avoid its operation. The defendant must in such case deny the promise charged, not only by averment in the plea, but by answer also in support of the plea. Mitf. Plead. 212, 213 ; 3 Atk. 70 ; 2 Atk. 51; Bailey v. Adams, 6 Ves. 586, 596 ; Beames’s Pleas in Eq. 169; Kane v. Bloodgood, 7 Johns. Ch. Rep. 90, 134. If this, then, was a bill upon an open account instead of a bond, and the plaintiff had charged a new promise to avoid the bar of the statute, the defendant must have answered to it. It is not perceived, that in the weaker case of presumption, which is but matter of evidence, and, offers no peremptory bar, he should be absolved from answering whether, in truth and in fact, he had paid the debt, in order to avoid the effect of lapse of time in barring the plaintiff’s demand. The presumption may be repelled by *any thing which goes to shew nonpayment. By what can it be more effectually repelled, than by the defendant’s own confession? Of what can he complain, when the fact of his having made payment is to be determined by his own oath ? Whatever the length of time, there is no bar, if he acknowledges that the debt has never been discharged. Such an acknowledgment to a third person, would be good evidence, and would repel the presumption: then, why shall he not be compelled to answer to the fact upon the requisition of the plaintiff ? Under which of the exceptions to the duty to answer can he bring himself ? It subjects him neither to a penalty nor forfeiture, but anerely to the payment of a just debt. It compels him not to disclose his own turpitude nor does it expose him to the danger of a criminal prosecution. It disburthens his conscience by compelling him to do justice. It absolves him from the demand if he swea rs that it has (been paid, and only charges him upon his own confession that it is unpaid. I am therefore clearly of opinion, that the answer was properly enforced.

On the merits of the case, an examination of the record has left no doubts on my mind. The presumption of payment from length of time, on which the defendant first rested his case, has been repelled by the extorted confession in the answer. The defence, that by the original transaction it was designed to bind him only to pay the interest during his father’s life, is not only in conflict with the principle which forbids the contradiction of written contracts by extrinsic evidence, unless there has been fraud, accident or surprise, but it is at variance with the facts and with the defendant’s own conduct. Before it be admitted, he should explain why his deed recites a purchase for the full sum of .£400 ? —why bonds are taken, instead of a simple written engagement to pay his father sixty dollars per annum during his life ?— why three bonds were taken instead *of one ? — why, in the eagerness of the defendant to clutch at any testimony in support of his pretensions (evinced by requesting Reed to reduce to writing his gossip with the old man) he did not at that time, or before, procure from his father himself, the evidence of his rights, if rights he had? and, lastly, why he never thought of this defence until he was compelled to own that the debt was yet unpaid ? Moreover, having but an equity, why has it remained so long unas-serted ? The presumption from length of time, bears with at least as much force against his pretensions, as against the clear documentary evidences of debt on the part of the plaintiff. I am of opinion, therefore, that, in this case, we ought not to presume that the defendant ever had a good equitable defence against these bonds ; a conclusion fortified by his having signed an inventory, in which they were inserted as part of the estate to which his sister was entitled, and by the other evidences in the cause, going to shew very clearly, that his father was not bound to give them up, but that at most he had made him some promise to do so at his death, which promise, being altogether voluntary and unexecuted, cannot be insisted on or enforced.

As to the supposed abandonment of her rights by mrs. Morris, I must content myself with saying, that the facts do not sustain it, nor can it be inferred from the delay. Stick-ley’s testimony proves beyond question, that she still held the bonds after her marriage with Morris, which must, of course, have been within twenty years before suit brought. She said, “ some of her friends wished her to forgive them, but that she refused to do so, and intended making her brother pay the bonds, as the money might be of use to her on a rainy day.” Mrs. Stickley’s testimony is to the same effect. Independently, therefore, of the principle that legal rights are never lost by abandonment, though equitable rights may be, here is neither proof of abandonment, nor sufficient length of time from which to infer it.

*These pretensions on the part of the defendant are the more extraordinary, considering the position he occupied in relation to the debts and the legatee. Constituted by his father one of his executors, the instant he qualified, the amount of those bonds was assets in his hands, subject to debts in default of other personal estate, but otherwise payable to his sister the legatee. It was his duty to pay over the money to her, as soon as the estate was wound up, and it was ascertained that the legacy bequeathed to her would not be impaired by any demands against the estate. Indeed, as he gave up the bonds, or as they were given up to her without opposition on his part, we must take the assent of the executors to have been given to her legacy, and it was the duty of this executor, who owed the debt which had thus become assets in his hands, to pay it to his sister. It is with an ill grace, that he complains of her forbearing to press her claims for her small patrimony. Placed in affluent circumstances, and in no need of the money, she did forbear, leaving to the defendant to make the payment when it suited his pleasure or his convenience. These considerations, together with her coverture for twenty odd years, and her unsettled state of mind, abundantly account for that delay to sue the defendant, on which he now rests his defence against the payment of his sister’s portion of her father’s estate.

Upon weighing the whole matter, I am well content to affirm the decree in all things ; being satisfied to follow the decision of Ten-nant’s ex’or v. Gray, and well convinced, that if interest ought, in any case, to be given beyond the penalty, it was most proper in this case.

CABEXX, X, concurred.

STANARD, J

I think the court below was right in enforcing an answer from the defendant, to the interrogatory of the bill respecting the nonpayment of the *debt in question ; a proceeding, which has been treated, in the argument, as the compelling of a discovery in respect to that matter. But it was no more a discovery coerced, than the requiring of an answer to any other allegation of the bill would have been. The bill was no more a bill of discovery than any other bill in equity. It was brought for a claim that was recoverable only in equity. To all the allegations of such a bill material to the plaintiff’s case, the defendant ought, and may be compelled, to answer. Every bill in equity is, in that sense, a bill of discovery. To every material allegation, the defendant must answer on oath, unless he be protected from the obligation to do so, by the consideration, that his answer would violate professional confidence, or that it would subject him to a penalty &c. The answer of the defendant in equity makes up the issue between the parties: and according to the course of the court of equity, the issue is, in all cases, made on the oath of the defendant; it is not so at law, except in particular cases, under statutory provisions. “.Every plaintiff (in equity) is entitled to have a discovery from the defendant, as to two heads; to enable him to obtain a decree, and to ascertain facts material to the merits of his case, that either he cannot prove, or in aid of proof;” Finch v. Finch, 2 Ves. sen. 592. Lord Eldon, in Cooth v. Jackson, 6 Ves. 37, 8, states the rule thus : “ If the party has a right to relief in this, court, he has a right to an answer from the defendant to every allegation of his bill, the admission of the truth of which, or the proof of the truth of which, is necessary to entitle him to that relief.” If a suit at law had been brought on the bonds of the defendant, he could no otherwise have relied on the presumption of payment from the lapse of time, but by putting the fact of payment' in issue by plea, and then using the lapse of time as evidence to sustain the plea ; and so in equity, unless the pleadings had made that issue, *this evidence could not have been resorted to as proof. The argument on the point turned mainly on the power of the court to enforce discovery on a bill, technically called a bill of discovery, by which the aid of the court is asked to discover matter to be used as evidence before another forum, or where the necessity of seeking a discovery is the ground of the plaintiff’s claim to ask relief from the court of equity, and sustain its jurisdiction in cases in which it would otherwise want jurisdiction. But the case before us belongs to neither of those classes ; and, therefore, though the court might refuse to compel the discovery, if its aid were asked as merely ancillary to a court of law, for the purpose of avoiding the bar of the statute of limitations or of repelling the presumption of payment from lapse of time, it would not follow that the court would, in a regular suit for relief which could be bad in equity only, dispense with an answer to any of the material allegations of the bill. Even where the discovery is sought, only for the purpose of repelling the defence of the statute of limitations at law, the discovery will be enforced. It is so distinctly decided in the case of Cork v. Wilcock, cited at the bar : and the case of MacGregor v. The East India Company is to the same effect; for it was there decided, that the plea to such a bill must distinctly deny, that any assumpsit was made within the term of limitation ; and according to the practice of the court of chancery, such a plea must be sustained by the oath of the party ; Wyat’s Reg. 325.

As to the effect of the lapse of time on the title of the appellee to relief in this court, I have the misfortune to differ from my brethren. The statute of Virginia prevented the extinguishment of the debt (if one was due) from John Baker to his father, in consequence of his appointment and qualification as executor of his father ; but after his appointment and qualification, the legatee of that debt had no remedy but in equity only. *The delivery of the bonds by the executor to the legatee, was an assent to the legacy, and vested in her a right to the debt, if one was due from the defendant to the testator, and was equivalent to the delivery of a specific chattel to the legatee thereof; and it withdrew these bonds from the assets of the testator’s estate, in like manner as they would have been withdrawn from them if the obligor had not been the executor. After this assent to the legacy, and delivery of the bonds to the legatee, the executors, and John Baker as one of them, ceased to be responsible to the legatee as executors : the relation of creditor and debtor,, to the extent that John Baker was indebted, was established between the legatee and him, with this peculiarity, that the creditor had remedy in equity only for her claim. Such being the relation of the parties in 1807, the suit to charge the defendant with this debt was not brought till 1835, and was then brought by the surviving husband of the creditor as her administrator, she having lived in the vicinity of the party now charged as her debtor, till 1833. In this interval, it does not appear that the defendant ever acknowledged the debt, or that it was ever demanded of him. It appears that he contested his liability for it at an early period ; and that his sister and her first husband during her first coverture, she during her widowhood, and she and her second husband, were all fully aware that it was so contested : that of the facts on which he relied to resist the payment of the bonds, he had one witness, at least, who was no longer living when this suit was brought; that his sister and her husbands, apprized of his denial of the justice of the claim, forbore to bring suit for twenty-eight years ; and that she, at some times, asserted her right to the bonds, and the defendant’s obligation to pay them, and, on other occasions, expressed her acquiescence in his objections to the payment of the bonds, and her willingness to forego any claim on *them; but none of these assertions of right, or declarations of acquiescence, were made in any communication between the parties. While the conflict between the purposes and views of the alleged creditor at different times, leaves the matter in some doubt as to what she might finally have done, the fact of actual forbearance is incontestable ; nor is there any evidence even of a demand. The parties were in antagonist positions for more than twenty years before this suit was brought, while one denied his obligation to pay, and the other forbore to assert her right to receive. There has been (if I may use the expression) an adversary possession of the money in controversy for more than twenty years ; and there has been a forbearance to bring suit for a right, recoverable in equity only, for that length of time, with full knowledge to the parties entitled and able to sue, that the right was denied : and the only question is, whether a court of equity will, after such delay, entertain the suit ? My impression is, that in such a case, according to the principles of numerous decisions, the activity of a court of equity ought not to be called forth. The inference which length of time per se might warrant, that the party intended to relinquish the claim, is in some degree strengthened by the evidence of avowals of that purpose at different times ; and time has deprived the defendant of the protection of such a purpose to relinquish the claim, by the death of the party to whom it is presumptively or by direct proof imputed. But I rest mainly on the proposition, that, after the lapse of more than twenty years, during which liability for the claim (for which there was no remedy but in equity) was, to the knowledge of the claimant, denied, and during which there was no impediment to a suit by the party entitled to sue for and recover the claim if it was just, and yet no suit was brought, the lapse of time, relied on as a defence, is effectual to repel the claim, *and to protect the defendant from the active agency of a court of : ' equity to subject him to it. Among many cases that might be cited, I refer to Marquis Cholmondeley v. Ld. Clinton, 2 Jac. & Walk.

1, 184-192;Hoveden v. Ld. 2 Scho. & Lef. 607, 630 ; Elmendorf v. Taylor, 10 Wheat. 152; Miller v. M'Intyre, 6 Peters 61.

Decree affirmed.  