
    Supreme Court of Errors and Appeals. Rogersville.
    1823.
    BLACKBURN v. SQUIB.
    In England it a bond lie dormant for twenty years, without the payment of any interest or demand made, or any circumstance to account for the acquiescence, the jury may presume that the bond has been satisfied.
    And in this State it may safely be left to a jury to say, on the naked fact of time alone, whether or no they would not presume the debt paid where the bond has been suffered to lie dormant for sixteen years. [Acc. Atkinson i>. Dance, 9 Y. 427; Anderson v. Settle, 6 Sn. 203; Yavnell v. Moore, 3 Cold, 176, all citing this case.]
    A much shorter period will be sufficient to raise the presumption of payment, where facts are shown to induce a supposition of payment. [See Thompson ». Thompson, 2 Head, 405.]
    Debt upon a bond dated the 22d day of December, 1796, payable on or before the 25 th day of December, 1798, for one hundred and sixty-six dollars and two thirds of a dollar. Declaration in the usual form, and pleas first, payment on the day appointed; and the second, after the day appointed, and issue.
    The action was brought on the 4th of January, 1818, and was called for trial on the 18th September, 1820 ; when the defendant presented his affidavit, stating that he is informed, and does believe, that a plea of accord and satisfaction is necessary to his defence in this cause ; that he has a receipt in full of all demands of the plaintiff, and that the receipt was lost at the time of making up the issue, so that he despaired of ever finding it, owing to which loss he had not informed his counsel of its existence, that he has found it since, &c.' The Court directed counsel to draw and submit their pleas, which was done. Yet, the Court would not permit the pleas to be filed unless defendant would be sworn to the truth thereof.
    To the not suffering such pleas to be filed on the affidavit, exception is taken.
    The cause then proceeded.
    The defendant proved that both himself and plaintiff resided in Washington County at the time of executing the obligation on which suit was brought, and since.
    The plaintiff called his son, a witness, and proved that at a court held for Washington County, since the commencement of this suit, and just before the trial, Squib, the defendant, proposed to the plaintiff to take the suit out of court, and if plaintiff would do so, he would pay the debt by paying fifty dollars down and give bond for the balance ; this the plaintiff refused to do, unless Squib would also settle with the plaintiff an account; Squib said he had an account, which, if Blackburn would settle, he, Squib, would do so. This testimony the counsel for defendant moved the Court to reject, but the Court permitted the evidence to rebut the presumption of payment arising from length of time.
    Another witness, by the name of Blackburn, testified that he, two days before the institution of this suit, in the streets of Jonesboro’ requested defendant to sign a new bond for the debt, and offered to surrender the old one; the defendant refused, and was silent about payment. In another conversation between plaintiff and defendant, Squib stated that if Blackburn would purchase Squib’s land and mill, he (Squib) would, out of the price thereof, settle the account which Blackburn had against him; Blackburn said he wanted the account settled; Squib said he was willing to come to a settlement. This conversation took place about two years before. Witness did not hear the bond named.
    Defendant then introduced the following receipt: —
    “ September 8th, 1800. Received of Archibald Blackburn full satisfaction for all dealings relative to the mill we bought in partnership, which
    
      partnership is by mutual consent dissolved the day and date above, as witness my hand and seal. Having received full satisfaction from the beginning of the world until the above date.
    “ Joiix Squib. [l.s.]
    “ARChibald 'Blackburn, [l.s.]”
    Witness,
    John Helm.
    Indorsed. — “The erasement of the name was owing to a mistake.”
    Henry Helm proved that he was present when the above instrument was executed; that his father (now dead) was the witness, and the body of the instrument in his handwriting; that before and at the time of executing said instrument, his father had the care of an article of copartnership between the plaintiff and defendant; that they both asked for the article, stating that they had settled all their business and wished the article destroyed. Witness’s father refused to give it up,'one Robert Allen having indemnified his father in case he would hold on upon it, because there existed a suit between said Allen and Blackburn, in which Squib was a witness. They insisted on having the article, repeating that they had settled all their business. Witness’s father then cut off the signatures and gave up the article. Witness’s father drew some -writings between them ; thinks those drawn for Blackburn similar to those drawn for Squib. The defendant then offered to prove work and labor done for plaintiff in putting up a chimney, which was objected.
    The Court determined that defendant might prove any payment made on the note, but if defendant set up any claim which had not been agreed to go in part payment, he should have either given notice or pleaded it as a set-off.
    The Court stated to the jury that the sealed instrument, had it been pleaded as a release of the action, ought, in construction, to be confined to the copartnership transaction ; but as it had been read he would not now take it from the jury ; that they would take the whole ■ evidence, giving to it and the witnesses such credit as they thought it ought to have. Length of time had been relied on, and where relied on without any other circumstance, twenty years would raise a presumption that the debt was paid; but that this, like any other presumption, might be rebutted by showing facts inconsistent with such presumption.
    If there were circumstances in the case calculated to induce a.belief that the debt had been satisfied, a much shorter period ought to be left to the jury, who might, and ought, if they thought the circumstances warranted it, presume the debt paid.
    If the jury believed from the proof that the debt had not been paid, they would find for the plaintiff; if from the length of time and other circumstances they believe it was, they should find for the defendant.
    
      The jury found for the plaintiff; a new trial was moved for and overruled, from all which this appeal is taken.
   Peck, J.

delivered the opinion of himself and Judge Brown.

All the cases in England concur in this, that if a bond lay dormant for the space of twenty years or more, without payment of any interest, or any demand having been made, or any circumstance to account for the acquiescence, this will be evidence of itself for a jury to presume that the bond has been satisfied.

The plaintiff must show in evidence the reason why the bond has been so held up, or the defendant, from mere length of time, on the plea of payment, will be entitled to a verdict.

It is said in 1 Burrow, 434, per Lord Mansfield, that there was no direct and express limitation of time when a bond should be supposed to have been satisfied ; the general time, indeed, was commonly taken to be about twenty years, but he had known Lord Raymond leave it to the jury upon eighteen years.

It is agreed in the courts of England that a less time than twenty years will do to raise the presumption, if some evidence be given to induce a supposition of payment. .Such as the settlement of accounts in the intermediate time, without any notice being taken of the bond. The books say the slightest evidence will be sufficient to raise the presumption.

Before we proceed to the examination of the evidence offered in this case on which to predicate the presumption, it may not be amiss to suggest some thoughts on the subject of length of time as applicable to our country; perhaps strong reasons might be urged why the length of time that governs in England should not be considered as the rule with us. Ever since permitted to think for ourselves as an independent people, our policy has been to abridge the time within which demands generally should be made, or the party barred. Our Statute of Limitations in a great number of actions extend only to three years, while in England most of the same species of action extend to the term of six years; even in real estate the action of ejectment for lands, unless under particular exceptions, is confined to seven years; a disposition in the people of this country to emigrate to parts remote, by which evidence may be lost, all our property, being liable to the writ of fieri facias, are strong arguments to show that in applying a rule so salutary in other countries, and which forms a parallel to the limitations in that country, should in this be shortened in some proportion to meet a different mode of thinking; and we are the more inclined to this, because, whatever change has taken place in England incline to a shorter period of time. Again, the same instrument of writing without a scrawl is supposed not to benefit the holder when the limitation of three years has run, while, if a scrawl be added, it would last for twenty years before even a presumption of satisfaction could be urged. It may be granted that the presumption here spoken of cannot be otherwise assimilated to a Statute of Limitation than as tending to peace and the prevention of those wrongs which art might contrive and hold long in abeyance until time or accident had swept away evidence.

These considerations strongly incline a majority of the Court present to the belief that it might safely be left to a jury to say, on the naked fact of time alone, whether or no they would not presume the debt paid where the bond had been suffered to lie dormant for sixteen years, and whether a much shorter period would not be sufficient to raise the presumption where facts, such as named in the books “ of settlement in the intermediate time,” and the like, were proved by the defendant.

The Court below determined on the admission of testimony that, though work and labor had been done for the plaintiff by the defendant, that it was not admissible evidence unless it also be proved that it was agreed by the parties to go as payment, or given notice of, or pleaded as set off. In this we are clear there is error. This certainly was such a circumstance as should have*been permitted to go to the jury under the issues, for slight circumstances have been left to the jury on the issues of payment on the day, and payment after the day, where sixteen years have elapsed.

Strictness of proof or its applicability to the issue is not required in such a case, because of the time elapsed.

The evidence of work and labor ought to have been admitted as a circumstance ; and what it might have weighed with the jury, when connected with the evidence of a settlement as proved by Helms, the witness, is not for this Court to say.

The latter part of the charge of the Court to the jury is at war with the first part; the question should have been left to the jury on the presumption alone, without considering the question of actual payment, to which the minds of the jurors are last directed in the charge, and was well calculated to mislead.

Indeed, it is pretty evident from the whole case that the question of presumption was lost sight of, because there was an attempt to show payment by the defendant, and the negative of it by the plaintiff, in the evidence offered. This brings us to the question how far the plaintiff has proved the admission of the debt. The witness, Blackburn, son of the plaintiff, relates to a transaction which took place posterior to the bringing of this suit; and just before the trial Squib proposed, if Blackburn would dismiss his suit, he would pay part and secure the balance of the debt; Blackburn would not dismiss his suit unless Squib would also settle an account Blackburn held against him ; Squib answers that he had an account, and if Blackburn would settle he would do so (would settle is the obvious import). Blackburn does not settle; he does not dismiss his suit; Squib does nothing under the proposition, and the suit progresses.

This evidence, though objected to, the Court permitted to go to the jury “ to rebut the presumption arising from length of time.”

Waiving, for the present, an opinion on the question whether or not this evidence should have been received, because made in a treaty about the suit; it is very questionable if the language of the judge was not too strong, amounting to an opinion on the fact.

If admissible at all, it should have been left to the jury to say if sufficient to rebut the presumption.

Somewhat analogous to this point is the case of Turner v. Crisp, Strange, 827, where Lord Raymond refused to let the indorsement of a receipt on the bond go to the jury after the presumption had taken place; see also Clark v. Hopkins, 7 Johns. Rep. 556.

This question, and the question made on the motion to add other pleas, are not very material to be considered.

We are, for the reasons given, of opinion that the cause be reversed and remanded for a new trial.  