
    Atkinson vs. Dance.
    Where a bond lias been clue for sixteen years,1'tliis is such.'a circumstance,* as Will, if not rebutted, authorise a jury to presume its payment.
    The facts proved in this case W'ere’, that on the 15th of No vernber, 1816, the defendant, Dance, and one John Spain, jointly executed their bond to Atkinson, in the penalty of sixty pounds two shillings and eight pence, Virginia currency, conditioned for the,payment of thirty pounds' one Shilling and four pence, on demand. The bond itself recites that the obligors were citizens of Wilson county, Tennessee, and the obligee of Virginia. Spain died six or eight years afterwards insolvent. Dance was solvent when the bond was executed, and has continued so hitherto. The suit was commenced on the 8th of November, 1833, being sixteen years, eleven months a'nd twenty three.days, after it became' due".
    The action is covenant, and the breaches assigned are: first; that neither Spain' nor Dance paid' the sum mentioned in the condition, although often requested. Second; nor did either of them'pay the sum' specified in the bond, although often requested. Third;' nor did either of them keep or perform the covenant by paying either sum.
    The defendant pleaded: First; that he paid plaintiff the sum mentioned' in the condition in discharge of the bond. Second; that Spain paid, &c. To which' there were replications and issues. On the back of the bond was the following memorandum: “To amount of the within bond, due 15th 
      November, 1816, $100 22 1-2. To interest from 15th vember,- 1816', till 15th January, 1824, $37 06.”
    On the trial, the defendant relied on length of time as raising a presumption of payment, or, at least,- as affording, with other circumstances, evidence from which the jury might infer payment.
    The court charged the jury,- “that where length of time alone was relied upon as a presumption of payment, twenty years must have elapsed; but if twenty years had not elapsed, then the jury must look to the proof and see whether a payment has been made or notin point of fact;- this may be proved by p'ositive oi- circumstantial evidence. If sixteen years have been permitted to pass, and the debt lay dormant during that time, this would be such a circumstance as', on the naked - fact of time alohé,' would authorise the jdry to presume thé fact of payment. This would be a conclusion to' be drawn by them, and not a presumption of law, and’’ they alone are to say whether sixteen years is sufficient evidence to them of payment;' and- if there be other circumstances in the case, such as a settlement of accounts, &c. a shorter time will authorize the presumption of the fact of payment.”
    Thé jury found for the defendant. A motion for a new trial was overruled, and appeal in' the nature of a writ of error taken to this court'.
    
      J. iS. Yerger, for plaintiff in error.
    1. This judgment should be reversed. The judge in his charge, says that sixteen years alone,- without any other circumstance, is sufficient evidence for the jury to presume a payment. The only case that supports this opinion-, is-the- case in Peck, page 60. The English authorities, say twenty years is the shortest period of time in which payment can be presumed from lapse of time alone. Matthews on Pr. Ev. 378, 379, 380,381: 1-Term R. 272: 1 Yeates 584 : 2 Wash. C. C.- 323: 2 M’Cord 340: 1 Wheat. Sel. 423.
    2. The judge erred in not granting a new trial. There was no evidence to support the pleas. It is true, sixteen years eleven months and tiventy-three days had elapsed from the date of the covenant. That does not furnish the evi-dence of payment required in this case. The bond is made payable on demand, and not before. The time therefore could only begin to run from the time a demand was made, which seems only to have been made in this case, when suit was commenced. The judge and the jury seem to have gone upon the idea that the time should be counted from the day, on which he could have made the demand, which was clearly wrong.
    Interest could only be recovered on this obligation from the time the suit was commenced or demand made'. (See act of 1786, c. 4, § 4,) which shows conclusively when the time would commence running.
    22. J. Meigs, for defendant in error;-
    contended that the charge of the court was correct, and cited the following authorities. Peck’s Rep. 60: Roscoe on Evi. 14, 15: 4 Peters-dorff’s Rep. page 440 top, 642 marginal, where most of the English cases are collected and' abridged, PI. 3 to 7, especially 7 on page 442, the case of Rose vs. Bryant, abridged from 2 Camp. 321.
    He said the charge was as favorable' for the plaintiff as it could be consistently with the English authorities. When a debt is left undemanded till the interest amounts to the principal, which is twenty years, where the interest is five percent., and sixteen years and eight months, where the rate is six per cent., it may be reasonably presumed to be paid. 2 Camp. 321. Accordingly, endorsements of payments of interest made previous to the presumption attaching, in the hand of the obligor, or even in the hand writing of the obligee, with proof that they were made when they purport to have been made, have been admitted to rebut the presumption. Where no such endorsements exist, and there has been no change of the residence of the parties since the execution of the bond, it is submitted, that the court ought to declare that the presumption will attach in this country, in sixteen years and eight months.
   Reese, J.

delivered the opinion of the court.

On the 15th November, 1816, the defendant and one John Spain, jointly executed the bond upon which this suit is brought, to Atkinson. The bond on its face recites that the obligors resided in Wilson county, in this State, and the obligee in the State of Virginia, and the bond is made payable on demand. The action was commenced on 8th November, 1833, nearly seventeen years after the execution of. the bond. Six or eight years after the execution of the bond, Spain died insolvent. On the trial of the case, the court stated to the jury, that if sixteen years had been permitted to pass, and the debt lay dormant during that time, this would be such a circumstance as, on the naked fact of time alone, would autho-rise the jury to presume payment. This is the language of this court in tbe case of Squibb vs. Blackburne, determined thirteen or fourteen years since. See Peck’s Rep. 64. Since that time, there has been, it is believed, a general acquiescence in the courts of this State and among the profession, in the correctness of the opinion; although perhaps the point in that case was not raised and judicially determined, this court does not deem it proper to disturb that acquiescence. Time has always been regarded as auxiliary to other facts and circumstances, in questions of payment, possessing more or Jess importance, as the period may have been longer or shorter. As to what amount of time alone, divested of other circumstances, shall be of weight sufficient to authorise a jury to presume payment, unless the presumption be rebutted, is necessarily arbitrary as a rule, and based on grounds of public policy. Sixteen years having, in the case referred to, been adopted, and society having acted on it for many years, it would be improper, we think, to question the correctness of the rule. There are few greater evils to be inflicted upon a community, than a fluctuation, capricious and uncalled for, in judicial opinion and decision. We felt however some difficulty in this case, in perceiving that though claim had laid dormant for sixteen years, yet the bond was not made payable on a day certain, but on demand, in which case, it does not seem proper to presume that the demand was made forthwith, but in some reasonable time afterwards, at all events, that it would be a circumstance calculated to rebut the presumption arising from lapse of time. But the bill of exceptions shows, that the plaintiff himself read to the jury as evidence, an endorsement upon the bond in these words. “To amount of the within bond, due 15th November, 1816. To interest from 15th November, 1816, till,” &c. This endorsement, thus introduced by .the plaintiff as evidence, would authorise the jury, we think, as .against him, to presume that the demand was made on the day of the execution of the bond, and if so, that the claim had Iain dormant for more than sixteen years. Let the judgment be affirmed.

Judgment affirmed.  