
    
      Stover & Barnes, survivors, v. Thomas Duren.
    
    The presumption of payment, from lapse of twenty years, is a presumption of fact, but one which has acquired an artificial force. In considering admissions to rebut it, the same principles are applicable as in considering admissions to take a cause of action out of the statute of limitations.
    After the expiration of full twenty years, a mere acknowledgment that the debt has not been paid, will not suffice to rebut the presumption: there must be (if there be no payment of interest, nor promise to pay, nor other sufficient rebutting circumstance,) a distinct admission of the subsisting legal obligation of the debt, unaccompanied by any conduct or expressions indicative of an unwillingness to pay.
    Arrest under a ca. sa. is prima facie evidence of satisfaction: to rebut it, it must appear that the imprisonment ceased in some way, which constitutes an exception to the general inference of satisfaction from the body taken.
    
      Before O’Neall, J. at Kershaw, Spring Term, 1849.
    .The plaintiffs, survivors of the firm of Stover, Barnes, Dickson & Perry, brought a suit on a judgment, recovered by the partners against the defendant, on the 25th of October, 1821. The writ in this case was lodged 21st September, 1847. The defendant pleaded nul tiel record, and payment.
    It was proved, Fall Term, 1847, that Dr. McKain, the nephew of the plaintiff, Stover, called upon the defendant, and told him that he had understood that he (defendant) had promised to pay the judgment, when he was able. He replied, he did not know whether he ought or ought not to pay it, they had treated him so meanly, they (the plaintiffs) had put him in jail. Defendant said he supposed the debt had not been paid.
    
      266.
    On a preceding occasion, 17 or 18 years ago, the defendant said, those who put him in jail he would not pay. It appeared that the defendant, under a ca. sa. issued in this case, and lodged 4th of March, 1822, was arrested, and applied to be discharged under the prison bounds Act. The jury, at Fall Term, 1822, found on the issue made up, contesting the defendant’s schedule, in his favor, and he was ordered to be discharged; but the case was carried to the Constitutional Court, and a new trial was ordered. On 21st of November, 1823, the issue was re-tried, and a verdict was found against the defendant. This left him in custody, and how he was discharged did not appear. All his property was sold in discharge of the judgments against him; and this judgment certainly received the proceeds of a family of negroes, $917. How much more (if any,) might have been applied, could not be ascertained: the sheriff’s books furnished no clue to certainty, in this behalf. The defendant’s bond for the bounds was assigned, suit brought on it, and it appearing to be unsealed, the plain tiffs failed to recover. Subsequently they sued the sheriff for this failure in the discharge of his duties, and failed in that case also. The defendant remained a long time, as one of the witnesses said, in the prison bounds. After some years, he left Camden and went to live with his father, and at his death, in ’29 or ’30, he received from his estate property to the amount of $2500.
    In three or four years afterwards, Mr. Dye said, he could have paid $3000 or $4000. The debt in this case, after deducting the negroes, would still have amounted to several thousand dollars.
    The jury were told that, after twenty years, the law presumed a debt secured by specialty or judgment, to be paid, unless interest dr part of the principal had been paid, or some acknowledgment of the debt, as a subsisting one, had been made. That in this case, the evidence of the acknowledgment of the debt, in the fall of ’47, proved by Drs. Lee and McKain, was not sufficient. That all the circumstances strengthened the presumption of payment. But that the arrest of the defendant under the ca. sa. was satisfaction in law, unless it had been shewn that the defendant had been discharged under the prison bounds Act, or by his consent, or that he had escaped or died in prison. That none of these were shewn, and no facts were proved whereby a reasonable presumption of either of them could arise. And, therefore, in law, the debt was paid.
    The jury found for the defendant.
    The plaintiffs appealed, on the grounds:
    1. Because W. B. Cauthen proved an admission by the defendant, in 1831 or 1832, that the debt was then unpaid, and his Honor directed the jury to throw his evidence entire-jy QUj. 0f Case.
    x Camp. 217.
    2. Because the admission of the defendant, in 1847, to j)rg Lee and McKain, “ that the debt never had been paid” was positive, and rebutted the presumption of payment, and his Honor should so have charged the jury.
    3. Because, instead thereof, his Honor charged the jury that the said admission was not sufficient to charge the defendant; that after the lapse of twenty years, the admission, that the debt was unpaid, must be coupled with something to shew that the party was willing to pay it.
    4. Because, in debt on judgment, the presumption of payment, arising from lapse of time, is a presumption of fact, and may be rebutted by any evidence which shews the debt has not been paid ; and the plaintiffs were entitled to recover upon proving the admission of the defendant in 1847, that the debt was then unpaid.
    5. Because his Honor charged the jury that it was very probable the plaintiffs discharged the defendant from arrrest when they sued his bond, and advised them to take that view of the case, and find for the defendant: whereas, 1st. There was no evidence to warrant that conclusion. 2d. Under the pleading, (nul tiel record and payment,) such defence was illegal, and the defendant could not avail himself of it.
    6. Because the verdict is against the evidence and law of the case.
    
      Smart, for the motion.
    
      John DeSaussure, contra.
   Wardlaw, J.

delivered the opinion of the Court.

The subject of presumptions is a good deal confused by the various terms which have been used to distinguish the different kinds. The presumption of payment, which, in reference to debts not embraced by the statutes of limitations, arises after the lapse of twenty years, is not a presumption of law, — that is, a rule which the Court itself may apply; but is a presumption of fact, recognized by law, from which a conclusion ought to be deduced by a jury. It is, however, one of those strong presumptions which shift the burden of proof; which, from frequent occurrence, have become familiar to the Courts, and which being constantly recommended to juries, from motives of policy have acquired an artificial force, and become as important as presumptions of law. Although the Court itself cannot make such a presumption, a new trial will usually be granted if a jury disregards it.

- It is not understood that, in this case, the Circuit Judge did more than urge upon the jury the well recognized presumption of payment, from lapse of time, and express his unfavorable opinion of the circumstances that had been ad-¿uce(j †0 rebut it. Just as in Williaume v. Gorges, Lord Ellenborough thought that after the lapse of twenty years, the presumption that a judgment had been paid, was not re-1 butted by the circumstances of defendant’s absence and insolvency, and, therefore, directed the jury to find for the defendant.

The matter which, on this head, is most objected to, is that the Judge held that mere acknowledgments, that the debt had not been paid, made after the expiration of the 20 years, were insufficient — that if there had been no payment of interest, no promise to pay, no other sufficient rebutting circumstance, an acknowkledgment, to suffice for rebutting the presumption, should be a distinct admission of the subsisting legal obligation of the debt, unaccompanied by any conduct or expressions indicative of an unwillingness to pay. This Court perceives no objection to the rule thus stated to the jury. The presumption is no legal bar, but it originally was admitted in analogy to the, then, prevailing statute of limitations, and in considering admissions which rebut it, the same principles are applicable as in considering admissions to take a cause of action out of the statute of limitations. ' So long as the lapse of time is merely circumstantial evidence, which, by ordinary inference, creates belief, (as where it is less than 20 years, and is adduced along with other circumstances,) any admissions which oppugn the inference of payment drawn from it, go to the jury along with it, and all are weighed together according to their natural force. But when, by the expiration of full 20 years, the presumption of payment has acquired an artificial force, so that it stands in place of belief, an admission that the payment has not, in fact, been made, cannot of itself destroy the effect which considerations of policy have given to a certain period of time, whether the payment has or has not been made.

This Court is also satisfied with the directions which were given as to the effect of the arrest. One of the pleas averred satisfaction, and more than 20 years had intervened between the enlargement of the defendant and the commencement of the suit.

The body held under a ca. sa. constitutes satisfaction at common law, and this, not less where the body has been discharged without payment, than where payment has been received. An arrest gives prima facie evidence that this satisfaction has been enjoyed: to rebut this evidence, it must appear that the imprisonment ceased in some mode which, by law, constitutes an exception to the general inference of satisfaction from the body taken. If nothing appeared but the facts that the arrest was made, and that the defendant, having failed in his application under the prison bounds Act, was at large, the enlargement consists as well with the supposition that the defendant was discharged by the plaintiff, of their own motion, as with the supposition that he either escaped or was discharged with his own consent, under the Act of 1815.

These facts, taken in connexion with the sales of defendant’s property that were made, the suit on his prison bounds bond, his long enjoyment of liberty undisturbed, yet able to pay, were strong, independent of all artificial presumptions, to shew that the plaintiffs, in fact, discharged the defendant, either because they were, then, hopeless of further satisfaction, or because they received payment.

The motion is dismissed.

Richardson, J. — O’Neall, J. — Evans, J. — and Frost, J. — concurred.

Motion refused.  