
    PATRICK B. THREADGILL vs. CHARLES WEST.
    When a person-,1ms been sued on his bond, as administrator, 'within two year® after the relator’s coming of age, he having been an infant at the time of the execution of the bond, the administrator, though the bond was-given more than ten years before action brought, can have no advantage from the act of Assembly, relating to presumption of payment.
    Appeal from the Superior Court of Law of Anson County, at the Fail Term 1S50, his Honor Judge Battle presiding.
    This was an action of debt upon an administration bond, which, being informal, was declared upon as a bond at common law. The breach assigned was, that James Ross, the principal1 in the bond declared on, in which the defendant was a surety, bad not accounted with Richmond Bailey; the relator, the amount to which he was entitled as the next of kin of the intestate. Pleas — conditions performed and not broken, and payment.
    Upon the trial it appeared, that the relator was an infant of tender years, when the bond was executed, and came of age, only a year or two before the commencement of this suit. But, notwithstanding ibis, the defendant insisted, that by virtue of the 13th and 14th sections of the Revised Statutes, ch. 65, or by virtue of the common law, there was a presumption of a performance or payment of the bond by the principal obligor, and, therefore, the action could not be sustained, and this, especially, because the bond was- only a common law bond. The plaihtiff contended, that the infancy of the relator prevented the presumption from arising either by the common law, or by virtue of the statute, if, indeed, the statute applied to such a case at all, which he denied.
    A verdict was taken for the plaintiff, and from the Judg-menl thereon the defendant appealed.
    
      
      ■"■Strange for the plaintiff.
    
      Winston for the defendant.
   •Nash J.

In iheopinion of his Honor who tried the cause, there is no error. The action is on a bond, given by James . Ross, as administrator of Sherod Bailey, to which the defen-' dant was one of the sureties, and is dated the 13th of April 1826. The bond being defective as an official bond, the declaration is at common law. The writ was issued the 11th July, 1848, and the defendant, under the proper plea, relied upon the lapse of time, as proof of payment. At the date of the bond, the person interested was an infant of tender years, and brought the action within two years after attaining his majority. It is a very general presumption, that 'things once proved to have existed 'in a particular State, are to be understood as continuing in that State, until the contrary is established by evidence, either direct or presumptive. Thus a debt once proved to have existed, is presumed to continue, unless payment, or some other-discharge be proved or established from circumstances; Jackson v. Irwin 2nd Camp. 48. Among the presumptive proofs of payment of a bond is lapse of time. The courts of common law in England established the artificial presumption, when payment of a bond, or other specialty, was not demanded within twenty years, and there was no payment of interest, within that time, or other circumstances to show that it was still in force, that payment ought to be presumed by a jury. Oswald v. Legh, 1st Tenn. Re. 271. So continued the law in this State,-until the act of 1826, ch. 28, was passed (Rev. Stat. ch. 65, S. 13.) By that aet, the time within which the-presumption is limited to arise, is cut down to ten years. Forbearance to sue for such a length of time will raise the presumption of payment.

It is, however, but a presumption, and may be answered by proof of other circumstances, explaining satisfactorily, why an earlier demand has not been made, as in Newman v. Newman, 1st Star, N. Pr. cases 101, when the obligee had resided abroad for the last twenty years, 2, Phil. Eq. 1711 In this case the presumption of payment could not arise. The person for whose benefit the bond was given, and for whose interest the action is brought, was at its execution, an infant, and continued so until within two years before the action was brought. The presumption under which the defendant seeks to protect himself, is, that he has paid the piopey. The condition of the bond bound him to pay the money when the infant came of age — be did not do so until within, ten years before the action was brought. The- presumption at payment did not arise in this ease.

Pe.u C.uRiAW- Judgment affirmed.  