
    J. J. Pratt vs. J. J. McLure, and others.
    
      Presumption — Payment—Judgment—Lapse of Time — Levy.
    Judgments presumed to be satisfied from lapse of time, and a levy indorsed; and the circumstances to rebut the presumption held insufficient.
    BEFORE DUNKIN, OIL, AT UNION,
    JUNE, 1857.
    Dunkin,Uh. Daniel White, plaintiff’s intestate, was surety to B. H. Bradley, administrator of Henry Long, deceased. The executors of McLure had instituted proceedings at law against the plaintiff, to subject White’s estate for the default of his principal, B. H. Bradley. This was a bill of inter-pleader, filed 23d April, 1856. An order was taken requiring, among other things, the creditors of Henry Long, deceased, to establish their demands. The cause was heard upon the Commissioner’s report, and exceptions thereto. It appears that Henry Long died in 1834, and B. H. Bradley administered March of that year. Two of the parties except to the Commissioner’s report; First, William M. Thomson, a judgment creditor of Henry Long, deceased, excepts on the ground that the circumstances reported by the Commissioner were sufficient to rebut the presumption of satisfaction of his judgment arising from the lapse of time. The first judgment of William M. Thomson is a sum. pro. by confession, 25th February, 1823, $62.48. Interest on $49.50, from 1st January; costs $10.00. Renewal fi. fa. 14th January, 1824, “credited 11th May, 1834; paid S. Harris, D. S., $15.00, and 6th August, 1836, paid by B, H. Bradley to Sheriff Macbeth, $75.97,” “being the next oldest case lodged with me, and notified by A. W. Thomson to pay any funds coming into my hands from the administrator of Henry Long, deceased, to this case.”— (Signed) R. Macbeth, S. U. D. The second judgment of Wm. M. Thomson is against Elizabeth Long and Henry Long. Fi. fa. entered 24th March, 1830, for $102.92; costs $19.42.
    Under the notice for creditors, these judgments were presented 2d June, 1857. The former of the judgments was then thirty-four years old, and the evidence proves actual payment of nearly the whole judgment, with interest, more than twenty-one years before the demand was presented in the Commissioner’s office. The second is a joint judgment against two parties, and was more than twenty-seven years old, when the demand was presented in the Commissioner’s office. It may be that during a part of this interval, the estate of Henry Long, deceased, was represented by his administrator as insufficient to pay his debts, but he received large additional assets in 1848 and 1849. Besides, Henry Long survived until 1834, and this judgment of 1830 was against two defendants. There was no evidence whatever, of the insufficiency of the first named — and, apparently, principal debtor. The exceptions of William M. Thomson are overruled.
    The next exception relates to two judgments by summa?'y process, standing in the name of Reid and Davis vs. Henry Long; the former is signed 13th October, 1827; decree $68.25. Interest from 27th January, 1827 ; costs $10.84. Fi. fa. 24th October, 1827; “levy on one horse, as the property of the defendant, November 13th, 1827.” “ Entered June 22d, 1S31.” — B. Johnson, S. U. D. “Entered August 4th, 1835.”— R. Macbeth, S. U. D. “No property to be found returned to the Clerk.” Mem. “the money belongs to J. S. Cull uni, of Charleston.” The second judgment is signed 2d November, 1827. Decree $41.43 j-. Interest on $16.62-J from 1st January, 1825, and on $24.8l£ from 14th October, 1825. Attorney’s costs. “ Mem. the money belongs to J. S. Cullum, of Charleston.” Tax costs, $6.27, “ levied on one horse, the property of the defendant, November 13th, 1827; entered June 22d, 1831.” —B. Johnson, S. U. D. “Entered May 4th, 1835.” — R. Macbeth. “No property to be found of defendant’s returned to the Clerk.”
    
      It is objected that the Commissioner has not reported in favor of these judgments, and for the reasons stated in the exceptions.
    It is a very well established principle of the law, that when a defendant’s goods are seized on a fi. fa., the defendant is discharged. Clark vs. Withers, (2 Ld. Raym. 1072; 1 Salk, 322.) In Ladd vs. Blunt, 4 Mar. R. 403, it was held, that when goods sufficient to satisfy an execution are levied on a fi.fa., the debt is discharged, even if the Sheriff waste the goods, or misapply the money. It was conceded, that a levy is prima facie evidence of satisfaction of an execution; but on the authority of Hancock vs. Lay, 1 Rice, Dig. 303, it was urged that proof, that the property did not belong to the defendant, and was not sold, was sufficient to rebut the presumption. It is difficult to affirm that the evidence in this case rebuts the legal presumption of satisfaction. The amount of both executions a little exceeded one hundred dollars. Immediately after the lodgment of the executions, a levy was made on the defendant’s horse. It is incumbent on the plaintiff in the executions, to show what became of the levy. Thirty years have elapsed. The presumption of satisfaction is positive. The evidence to rebut it after this great lapse of time, is merely negative. Many of the remarks of Judge Earle, in Moore Nesbit vs. Kelly, 2 McMul. 350, are not inapplicable to this case.
    But a circumstance which seems to have had much influence with the witness of the defendant, strongly corroborates the presumption from the lapse of time that the executions were satisfied. Samuel Harris says : He knew Henry Long from his childhood to his death, lived within a mile of him “ is of opinion, from his knowledge of the man, that he could always have raised money enough to have prevented the sale of a horse by the Sheriff.” The disposition of Cullum to press' for his money is proved by his prompt proceedings. Henry Long lived for nearly seven years after this levy, and was was always able to raise money enough to satisfy such demand. No legal proceedings were instituted by Cullum, or any one else, to revive these judgments for thirty years. The Court is of the opinion that the inference of the Commissioner is well sustained, and that these exceptions must be overruled. See Stone vs. Dunn, 3 Stark. R. 448.
    The plaintiff is entitled to his costs out of the fund, up to the time of the payment of the money into Court. It is ordered and decreed that the statement of the Commissioner be so modified, and that the fund be distributed by him according to the principles of this decree.
    Reid and Davis and William M. Thomson, appealed on the ground:
    1. That his Honor the Chancellor erred, in holding that the executions were satisfied by the presumption of payment arising from the lapse of time, when the debts had been admitted and payment made by Henry Long, in his life time, and these debts were returned as debts due by the intestate and payments made by the administrator.
    2. Because from the case made by the pleading, evidence, and the report of the Commissioner in the cases, the said appellants’ executions were not, and could not legally, be presumed to be paid, and so his Honor should have held,’ ruled and decreed.
    
      Thomson, Herndon, for appellants.
    
      Dawkins, Gadberry, contra.
   Per Curiam.

Some of the facts stated in the grounds of appeal do not appear in the record; judging fronq which, the Court discovers no error in the decrees. And it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dhnkin and Wardlaw, CC., concurring.

Appeal dismissed.  