
    [Chambersburg,
    October 31, 1827.]
    M‘DOWELL against M‘CULLOUGH, Administrator of CUNNINGHAM.
    IN ERROR.
    Where more than twenty years had elapsed from the time of payment stipulated in a single bill, and the obligor, when called on for payment, said, if he ■ were allowed a credit on the bill for a sum which appeared credited on a book account, he would pay’the balance, held, that the court were right in leaving it to the jury to say, whether this acknowledgment did not repel the presumption of payment arising from length of time.
    In the Court of Common Pleas of Franklin county, to which this writ of error .was directed,, the plaintiff below, John McCullough, administrator of John Cunningham, deceased, brought this suit against the-plaintiff in error and defendant below, William McDowell, to August, term, 1828, on a single bill, executed by the defendant to the intestate, dated the 27th of May, 1800, for twenty-seven pounds, payable on the 1st day oí .February, 1801, with interest from February, 1800, no part of which had been paid.
    The defendant pleaded payment with leave, &e.
    On the trial, John Parkhill, a witness for the plaintiff, testified, that in the spring of 1823, this note came to his hands. He called on William McDowell, who said, if we would allow him a credit of fifty dollars, which appeared on the book account, he would pay the balance,.as soon as money came to his hands; witness told' him we must take the note'and book account as if stood.' About the beginning of harvest, the witness called on him again; he had the note and book with him. Defendant examined them; he said if we would allow him that credit, he would pay the balance: he objected to the book account; he said, the work-was not done sufficiently. Witness was under the impression it was his duty to collect this money, and urged the payment, and proposed to leave the note and book account to three or five men, and abide by what they decided: he said, if we took the law we must abide by the law, and the law was in his favour. In the spring- of 1S24, he called on William McDowell, again, his reply was as formerly: if we allowed the credit, he would pay the balance; witness said, he did not wish to add any costs. MCullough agreed to leave it to men. -
    The witness did not recollect that he said he paid money for which he was not credited; he mentioned something of his having ordered the fifty dollars to be credited on the note. Cunningham died, perhaps, in the spring of 1801. John. MlCullough, and Robert Cunningham were the administrators of John Cunningham; Robert lived in Westmoreland cpunty; M(Cullough lived about four miles from McDowell. McDowell was a man in good circumstances. .
    The plaintiff produced the book pf accounts of John Cunningham, deceased, containing ah account against the defendant, and a settlement, dated in 1801, and a credit of fifty dollars entered, on the 27th of .August, 1805, thereon.
    The defendant requested the court to instruct the jury,—
    1. That twenty-five years and eleven months having elapsed since the single bill on which this suit was brought, was due, the legal presumption is, that it is paid.
    
      2. That an acknowledgment as well as a demand was necessary to prevent the legal presumption from arising.
    3. That the conversations detailed in evidence, if believed by the jury, do not amount to such an acknowledgment by the party as the law requires, to destroy the legal presumption.
    4. That an acknowledgment, to be effectual in repelling the legal presumption, rnusl be unconditional, and. consistent with a promise to pay, or, at least, unaccompanied with words inconsistent with a promise to pay.
    5. That the whole conversation with the defendant is to be taken into view by the jury; as well his allegation of a payment of fifty dollars, as the rest óf ib
    Charge of the court:—
    1st Point. — The tjme here mentioned having elapsed since the single bill on which the suit was brought, was due, the legal presumption is, that it is paid. If no evidence’ had been produced here, but the single bill, the presumption of payment would have been conclusive on the plea, here entered. , .
    
      2. The court say that an acknowledgment as well as a demand are necessary to°prevent the legal.presumption from- arising. A mere demand would be of no use at all to prevent the presumption of payment.
    3. The -court will not say that the conversations detailed in evidence, if believed by the jury, do not amount to such acknowledgment by the party as the law requires to destroy the legal presumption. This depends upon weight of evidence, of which the jury are exclusive, judges. In the opinion of the court,, whose opinion bn facts is not binding on the jury, the conversations detailed in evidence do amount to such acknowledgment by defendant, as the law requires to destroy the legal presumption of payment of the single bill. '
    4. The court say that the.acknowledgment, to be effectual in repelling the legal presumption, must be unconditional and consistent with a promise to pay, or, at least, unaccompanied with words inconsistent with a promise to pay, and the law is here correctly supposed. An acknowledgment must not be extended further than the man who makes it extends it. A condition of every acknowledgment forms a part of the acknowledgment. If the de» fendant acknowledged the claim on the note to be just, all but the fifty dollars before paid, then the acknowledgment can be applied only to that part of the claim which exceeded the fifty dollar-payment. ' '
    5. The court say that the whole of the conversation with the defendant is to be taken into view by the jury, as well his allegation of the payment of fifty dollars as-the rest of it. The jury are to judge of the truth of all the evidence. When the defendant’s allegations are given in evidence against him, all that was said by him at the time must be given: and all here has been given, and the whole of the defendant’s declarations must be taken together. Parkhill’s evidence, as the court understood it, was not positive or clear, as to the defendant’s allegation of his direction to credit the fifty dollars on the single bill. If the defendant did give such directions, then it ought to be credited upon the single bill, and it was a payment of the single bill as far'as it went.
    The defendant excepted to this charge.
    The jury rendered a verdict in favour of the plaintiff for one hundred and eighty-eight dollars, sixty-four cents, and judgment was entered thereon.
    
      Crawford, for the plaintiff in error.
    
      Findlay, contra.
    
   The opinion of the court was delivered by

Duncan, J.

The difference between actions on special contracts

and specialties as to the operation of time,, is well established. In the first, the bar is by positive statutory provision: the statute must be pleaded: non assumpsit infra sex annos — Replication, that he did assume within six years. In the latter, there is no positive legal bar, by analogy to the limitation, as to the time of entry.upon lands. Where the debt has been due twenty years, this is a presumption of payment. This presumption, like other presumptions,, may be removed by proof of acknowledgment of debt, payment of interest, and many other circumstances. The plea is payment, and the presumption is, that the debt, after that lapse of time, has been paid. But, if the obligor acknowledges it has not been paid, the-debt is not renewed by any new promise, nor does it require any inference of that kind, but the presumption "of payment is removed. In' assumpsit, the literal, unqualified acknowledgment, it is to be regretted, has taken a case out of the protection of the statute; but if, at the time of the acknowledgment, any thing be said to repel the inference of a promise, this acknowledgment will not take a case out of the statute of limitations — the cause of action arising on the new-implied promise. The evidence given, in this case, to repel the presumption from lapse of time, was that the defendant said, “ if the plaintiffs would allow a credit of fifty dollars, which appeared on the book account, he would pay the. balance.” This he repeatedly said. Now the book of accounts, to which he referred, showed that the fifty dollars had been credited in the account. The court left-it to the jury to say whether this acknowledgment did not show that the debt had not been paid— did not repel all presumption of payment. The court, with superabundant caution, say, that if the jury believe the acknowledgment detailed by the witness, that this does amount to such acknowledgment by the defendant as the law requires to destroy the legal presuihption of payment; but still instruct them, of its weight they must,judge. The court leave the whole to the jury; that is, whether the presumption, of payment, from the lapse of time, is not removed by the evidence given by the plaintiff, that the'defendant acknowledged that the single bill had not been paid. They likewise left to the jury the credit to be given to, his claim for a deduction of fifty dollars, when he made the acknowledgment, when contrasted with the plaintiff’s book, in which he had credit for :the fifty dollars, on'another account Undoubtedly, the presumption of payment from the mere lapse of time, was repelled by the positive acknowledgment that the debt was not'paid. • The principal foundation of payment stood till it whs contradicted: it was contradicted by the. defendant’s acknowledgment .that the debt was not paid.

The plaintiff in error has failed to substantiate his exceptions to the opinion, and charge of the court, and therefore the judgment should be affirmed.

Judgment affirmed.  