
    [Sunbury,
    June 20, 1825.]
    BOYD, Executor of HAINES, against GRANT and others, Executors of GRANT.
    IN ERROR.
    Twenty-three years after the last payment on account of a bond given by G., as surety for M., (dated about three years before) suit was brought against the executors of G. Whilst the action was pending, and shortly before the trial, the plaintiff’s attorney told G’s. son, (one of the defendants,) that the estate of M. was not able to pay the debt, ana that was the reason they pursued the estate of G’s. father: to which he replied, there was property enough of JH’s, and if judgment went against him, he would be able to show property enough of M’s estate: the court left it to the jury to say whether this was sufficient to rebut the presumption of payment, who found for the defendant: held, this was not error.
    
      It seems the court might have charged the jury, expressly, that this was not such an acknowledgment as rebutted the presumption.
    Error to the Court of Common Pleas of Lycoming county.
    The plaintiff in error was plaintiff below. It was an action of debt on a bond, in which Thomas Grant, deceased, the defend,ants’ testator, was bound as security for one Martin to Josiah Haines, deceased. Issue was joined on the plea of payment. The bond was dated the ISth of April, 1794. Several partial payments had been made, the last of which wás on the 39th of March, 1797. The action was brought to December term, 1821, upwards of twenty-three years from the last payment. It was proved, that pending the action, and a short time before the trial, there was a conversation between Charles Hall, Esq., attorney for the plaintiff, and George Grant, one of the defendants, in which Hall told Grant, that “ the estate of Martin was not able to pay the debt, and that was the reason they pursued the estate of Grant’s father,” to which Grant replied, that “there was property enough of Martin’s, and, if judgment went against him, he would be able to show property of Martin’s estate.” The president of the Court of Common Pleas, in his charge to the jury, told them, that although there was'no statute of limitations applicable to bond debts, yet if twenty years were suffered to elapse without payment of any part of the principal or interest, the law would presume payment, unless there was some circumstance, such, for instance, as the acknowledgment of the debt, to take off the force of the presumption; and he left it to the jury to determine whether the presumption was rebutted, in this case, by the conversation between Mr. Hall and George Grant. To this charge the plaintiff excepted.
    
      Hall and Bellas, for the plaintiff in error,
    contended that the case was not as strong here as where there is a positive bar by the statute of limitations. Even there, however, a slight acknowledgment suffices to remove the bar created by the statute. Whart. Dig, 424. 1 Binn. 212. 5 Binn. 573. 3 Serg. & Rawle, 211. An acknowledgment by an administrator that a debt is undischarged, takes it out of the statute. The defendant did not deny to Mr. Hall that the debt was subsisting: he said what was equivalent to an admission. Under these circumstances, the court ought to have charged positively, that the presumption of payment from lapse of time was taken away, and they erred in leaving that point to the jury.
    
      Marr, contra.
    It is material, that this evidence was derived from the plaintiff’s attorney and pending the suit, not long before the trial. The court did right in leaving it to the jury. The defendant did not confess the debt: he only said, that if judgment went against him, he could find property of Martinis to pay it. This was as much as to say he would resist the judgment. The words of an executor should not be construed as strictly as those of the original debtor. Where the acknowledgment is equivocal, it should be left to the jury.
   The opinion of the court was delivered by

Tii.6hman, C. J.

The counsel for the plaintiff have contended, that the jury should have been instructed, positively, that the reply of George Grant to Mr. Hall, was an acknowledgment of an existing debt, sufficient to destroy all presumption of payment from length of time. But I am of a different opinion. X think the charge was quite as favourable to the plaintiff as the evidence warranted. George Grant did not acknowledge an existing debt. On the contrary his words, on a candid construction, showed, that he insisted on his plea of payment, and was determined to stand a trial.

He said, that if judgment went against him, he could find property of Martin's sufficient to satisfy it. Now, surely, this was nothing like an acknowledgment that judgment ought to go against him. It is a circumstance of some weight, that George Grant was but an executor of his father, who was surety for Martin, and therefore could not be supposed to have the same knowledge of the bond’s being paid or not, as if it had been his own debt. If payment had been made, it would probably have been by Martin, the principal debtor. If the court erred at all, then, in, the charge to the jury, it seems to me that the error was, in not telling them that George Grant’s words were not sufficient to take off the presumption arising from length of time. I am of opinion that the judgment should be-affirmed.

Judgment affirmed»  