
    *Booker’s Adm’r v. Booker’s Rep.
    
      [26 Am. Rep. 401.]
    November Term, 1877,
    Richmond.
    Absent, Moncure, P.
    1, Bonds — Presumption of Payment. — The common law rule of presumption of payment of bonds arising from the lapse of time has not been affected by the statutory provisions adopted at the revisal of 1849, prescribing the limitation of such instruments.
    2. Same — Same—How Rebutted. — When more than twenty years has elapsed between the date of payment of a bond and the institution of suit thereon, it affords a presumption of payment, which the obligee may rebut by satisfactory evidence; and whether the evidence is sufficient for that purpose, is a question for the jury, and not for the court.
    
      This was an action of debt in the circuit court of Elizabeth City county brought by Elizabeth Booker’s personal representative against George Booker’s administrator. The action was brought on a bond which said:
    “On demand, for value received, I promise to pay Elizabeth Booker the just and full sum of seven hundred and fifty-five dollars and eighty-seven cents, with interest from the date, and the interest to be paid half-yearly. For the true payment and performance of which I bind myself, my heirs, &c., jointly and severally, firmly by these presents. As witness my hand and seal this 1st September, 1837.
    „ Geo. Booker [Seal.]”
    The defendant pleaded payment by George Booker, in his lifetime, to Elizabeth Booker. And on the trial of the cause there was to verdict and judgment for the ^'plaintiff for the amount of the bond, with interest from its date to the 1st day of May, 1861, subject to a credit of $300, paid the 1st of November, 1843.
    The defendant took a bill of exception to an instruction given by the court, and a second exception to the refusal of the court to set aside the verdict and grant him a new trial. The first, after giving the testimony of a number of witnesses and papers, states:
    And after all the said evidence had been introduced before the jury, the plaintiff, by his attorneys, moved the court to instruct the jury as follows:
    “That as the act of limitations has not been pleaded or relied upon by the defendant, the defendant cannot rely upon the presumption of payment arising from the mere lapse of time in defence of the plaintiff’s action.”
    But the court declined to give the said instruction in the form in which it was submitted as aforesaid by the plaintiff, and then gave to the jury the following instruction, to wit:
    “That there is no rule of law which authorizes the jury in this case to presume payment of the bond, in the declaration mentioned, from the mere lapse of twenty years since its execution; but the jury is authorized to consider the lapse of time as a circumstance or matter of evidence in connection with the other evidence introduced by the defendant under his plea of payment; it being the opinion of the court that the effect of the statute of limitations (Code of Virginia, ch. 149, §§ 5 and 19, ed. of 1860), is so to change the law as to prevent the defendant from relying upon the former rule of law which raised a presumption of payment of the said bond from the mere lapse of twenty years. By this the court means to say to the jury, in explanation, that if the only evidence offered in this cause were the writing obligatory in the declaration mentioned, and the mere lapse of time *from its date to the present time, then it would be the duty of the jury to find for the plaintiff.”
    It is unnecessary to state the second exception. Upon the application of Booker’s administrator, a writ of error and supersedeas was awarded.
    Scarburgh & Duffield, for the appellant.
    M. B. Seawell, for the appellee.
    
      
      Bonds — Presumption of Payment. — The rule laid down by the principal case in regard to the presumption of payment of bonds arising from lapse of time, is cited approvingly in Jameson v. Rixey, 94 Va. 346; Lightfoot v. Green, 91 Va. 514; Bowman v. Hicks, 80 Va. 810; Norvell v. Little, 79 Va. 143; Tunstall v. Withers, 86 Va. 892; Updike v. Lane, 78 Va. 136; Brewis v. Lawson, 76 Va. 45. See also, Barton’s Ch. Pr. (2d Ld.) 86; 4 Min. Inst. (3d Ld.) 603.
    
   Staples, J.,

delivered the opinion of the court.

According to a well-settled rule of the common law, a bond is presumed to have been paid after the lapse of twenty years from the time it becomes due. ft is, however, a mere presumption which may be repelled by satisfactory evidence; but in the absence of such evidence, this presumption is of itself sufficient to sustain a plea of payment. If a shorter period than twenty years has elapsed, even a day, this legal presumption does not arise. In such case, however, the lapse of time may be relied on in connection with other circumstances as evidence of payment. 2 Minor’s Institutes, page 886, and cases there cited; 2 Best on Evidence, 696.

The instruction given by the circuit court in this case declares that this rule of the common law has been changed by statute, so that the defendant cannot now rely upon the presumption of payment arising from the mere lapse of twenty years, but the jury may consider the lapse of time as a circumstance or matter of evidence in connection with the other evidence introduced by the defendant under the plea of payment. The statute to which the instruction refers is contained in sections 5 and 19, chapter 149, Code of 1860, and was incorporated in the revisal of 1850. One of these sections ^prescribes a limitation of twenty years in actions upon bonds, and the other provides that where the bond was executed before the 1st of July, 1850, if a right of action existed that day, the action may be brought within twenty years thereafter. The learned judge seems to have thought that as the statute was passed before a presumption of payment had attached to the bond in controversy, and as the action was brought in 1869, within the time limited by the statute, the defendant could not rely upon the bar of the statute, neither could lie rely upon the legal presumption of payment. The instruction is not so clearly drawn as to show with absolute certainty what was meant by the court, but this is the fair inference from the language used. We are of opinion, that the statute in question was not designed to change the rule of the common law. The object was simply to apply to actions, on sealed instruments, a statutory limitation in like manner as to actions on parol contracts, the only difference being that a greater time is allowed in the former case than in the latter.

Where the bond has been executed since the Lst of July, 1850, and has been due twenty years or more, the defendant may rely upon the statutory limitation, or he may waive that and take his chances before the jury upon the mere presumption of payment from lapse of time.

There is no decision in our rejiorts upon this precise point, but the courts have held substantially this doctrine in analogous cases. For example, although there is an express statutory limitation with respect to parol contracts in an action upon a promissory note the defendant, without pleading the limitation, may rely upon the presumption of payment after the lapse of twenty years. In Duffield v. Creed, 5 Esp. R. 52, which was an action of assumpsit upon a promissory note, with a plea of payment *Eord Ellenborough said: “If this had been a bond twenty years would have raised a presumption of payment, in which case he would have left the presumption to the jury, and he thought as this note was unaccounted for, the same presumption of payment ought to apply.” There is no doubt that this is the settled doctrine in the English courts. See 1 Phillips on. Evidence, page 576; 1 Rob. Prac. (N. E.), page 461, where the authorities are cited. That it is also the rule in this state is manifest from the cases of Tomlin’s adm’r v. Howe’s adm’r, Gilmer R. page 1; Ross v. Darby, 4 Munf. 428; Wells v. Washington’s adm’r, 6 Munf. 532.

If in an action upon an unsealed instrument the defendant may waive the statutory bar and rely upon th.e presumption of payment arising.from lapse of time, there is no good reason why'he may not do the same thing in an action upon an instrument which is sealed.

With respect to bonds executed before the 1st day of July, 1850, the limitation under the statute is the same as upon a bond executed and payable the day after the statute took effect, that is to say, the 2d day of July, 1850. This was in pursuance to the uniform policy of the legislature to give the statute of limitations a prospective operation, and therefore it is, that in applying the limitation, the lapse of time which accrued before the adoption of the statute is always excluded. Under the provisions of the statute, therefore, an action may be maintained on a bond, although executed more than twenty years before the statute was passed. In such casé the obligee, cannot be defeated by a plea of the statute, although he might be by the presumption of payment. In thus preserving all the rights of the obligee, it was not intended to impair those of the obligor, nor to deprive him of any defence he might have made if the statute had not been passed.

*The common law rule already adverted to does not, as the statute, create an absolute bar to the action. It simply raises a presumption of payment after the lapse of twenty years, which the plaintiff may rebut by evidence. It is 'a .rule of evidence and not of pleading. It is founded upon the idea that in the ordinary course of human affairs it is not usual fo'r men to allow real and well-founded claims to lie dormant a great length of time. Starkie on Evidence, 72. The statute is.but an affirmation of this principle. In the present case the bond was executed in 1837, thirteen years before the 1st of July, 1850; the action was brought in 1869, nineteen years afterwards; so that thirty-two years had elapsed between the date of the bond and the institution of the suit. It can scarcely be supposed it was the intention of the legislature, while adopting a statute for the security of the obligor, to deprive him of the benefit of the common law presumption arising from the lapse of time. The most that the obligee can require is that his his right of action shall not be affected by the statute, leaving to the obligor every defence he might have made if the statute had not been passed.

It is said, however, that the defendant was not injured by the instruction, because the evidence clearly rebutted the presumption of payment. This view is fully met by the case of Wells v. Washington’s adm’r, 6 Munf. 532. At the trial of that case, on the plea of payment, the defendant moved the court to instruct the jury that twenty years having elapsed between the time when the note became due and the institution of the suit, they ought to presume it paid unless evidence be offered of some acknowledgment of the debt within twenty years, or unless interest or a part payment, was proved within twenty years. This instruction was refused, and this court held that refusal to be error, and that the court *below could not be justified in refusing to give such instruction on the ground that the defendant in his application has not stated the evidence given in the cause, or because, in the court’s opinion, the principle of law did not apply to the case under the circumstances appearing in proof; for this would be undertaking to judge of the weight of evidence of which the jury are the proper judges. And so in the present-case, the court ought to have told the jury that more than twenty years having elapsed between the date of the bond and the institution of the suit, they ought to. presume it paid unless the defendant rebutted the presumption by satisfactory evidence. Whether the evidence.was sufficient for that purpose was a question exclusively for the jury and not the court.

Judgment reversed.  