
    *Wells v. Washington’s Administrator.
    
    Decided, March 18th, 1820.
    i. Promissory Note — Debt on — Lapse of Twenty Years. —Presumption—Instruction.—In debt on a promissory note, the Court, requested, ought to instruct the jury, that, twenty years having elapsed between the time when the note became due and the instituting of the suit, they ought to presume it paid, unless evidence be offered of some acknowledgment of the debt, or of payment of interest, or part payment of principal, within the twenty years. Nor can the Court be j ustified in refusing to give such instruction on the ground that the defendant, in his application, has not stated the evidence given in the cause; or that, in the Court’s opinion, the said principle of law does not apply to the case, under the circumstances appearing in proof; for this would be undertaking to judge of the weight of evidence, of which the Jury are the proper judges.
    
      
       For monographic note on Payment, see end of case.
    
    
      
       Bonds — Lapse of Twenty Years — Presumption.— "When more than, twenty years has elapsed between the date of payment of a bond and the institution of suit thereon, it affords a presumption of payment, which the obligee may rebut by satisfactory evidence; and whether the evidence is sufficient for that purpose, is a question for the jury, and not for the court. Furthermore the common-law rule of presumption of payment of a bond arising from the lapse of time is not affected by the statutory provisions adopted at the revisal of 1849, prescribing the limitation of such instruments. Booker v. Booker, 29 Gratt. 605. 609, 610, citing principal case as authority. In Sadler v. Kennedy, 11 W. Va. 193, it is said: “When an action is brought on a bond if twenty years elapse between the time of its becoming due and of the institution of the action, the defendant may (without pleading the statute of limitations) rely upon presumption of payment, and upon issue joined on plea of payment, payment may be inferred by the jury, from circumstances coupled with the lapse of a shorter period than twenty years. Perkins v. Hawkins, 9 Gratt. 656; Wells v> Washington, 6 Munf. 532; Tomlin v. How, Gilm, 8; Hunt v. Bridgham, etc.. 2 Pick. 581; Jackson v. Pierce, 10 Johns. 414; Telghman v. Freiher, 9 Watts. 442.” See principal case also cited in Hunter v. Snyder, 11 W. Va. 216. See further, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
       Instructions — Duty of Court to Give. — It is the right of the parties to demand, and the duty of the court to give instructions to the jury, within proper limits. Brooke v. Young, 3 Band. 106, 113, citing principal case. To refuse relevant instructions which rightly propound the law, is error in the court below, for which the judgment must be reversed. Gordon v. Richmond, 83 Va. 439,2 S. E. Rep. 727.
      See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
   This was an action of debt in the County Court of Fairfax, instituted by Cornelius Wells assignee of Joseph Reid, against the administrator with the will annexed of Edward Washington deceased, on the 12th of March 1816, upon a promissory note of the said Washington dated August 14th, 1795.

At the trial, on the plea of payment by the testator, the defendant moved the Court to instruct the Jury that, “twenty years having' intervened between the time when the note because due and the instituting of the suit, they ought to presume the note paid, unless evidence was offered to the Court of some acknowledgment of the debt within twenty years, or unless interest or a part payment was proved within twenty years:” — but the Court refused to give such instruction, for the following reasons; 1st, because the defendant in his application did not state the evidence on which he prayed the opinion of the Court, and which was given in the case; and 2dly, because, under the circumstances appearing in evidence, the principle of law, on which the Court’s opinion was asked, did not apply; wnich circumstances were stated, in a bill of exceptions, tobe, that, by the Will of the said Edward Washington, (set forth in hsec verba,) the testator directed, that “all his just debts, due either by bond, note or open account, be paid without any regard to the Act of Limitation;” that, in the year 1810, a witness heard the said Washington acknowledge he owed Joseph Reid (the assignor) money; but on what account, or how much, the witness did not recollect; that, in the same year, as overseer of Washington, he delivered to Reid 2½ bushels of wheat; that, at the end of the year 1809, Reid, who had been overseer, left the service of Washington, and part of a crop, consisting of 134J4 bushels of wheat, 4501bs. of tobacco, and about 701bs. of flax; that the witness knew not whether the said Reid *ever received his share of that crop; that another witness swore that he knew the said Washington not to be punctual in paying his debts, but otherwise in collecting what was due him; that a third knew him intimately, and considered him a careless man, not attentive to his affairs; that he knew him to pay money without any receipt for it; and that Reid lived many years with Washington, who had a good opinion of him.

A Verdict was found, and judgment rendered for the plaintiff. The defendant obtained a Supersedeas from the Superior Court of law, which reversed the judgment, on the ground that the County Court erred in refusing to give the instruction requested; and that judgment, upon an appeal to this Court, was affirmed. 
      
       Note, til the petition for the Supersedeas, it was remarked, that the County Court, in it’s opinion and instructions to the Jury, proceeded either on the principle that the presumption of payment, arising from lapse of time, was not admissible in relation to an instrument not under seal, or that, if admissible, such presumption was repelled by the evidence offered to the Jury on the part of the plain ti if. The petitioner was advised that presumption of payment arising from lapse of time, had been adopted as a rule of evidence generally, and, on principle, applied equally to cases of unsealed as of sealed instruments; or, if any thing, more strongly to the former; and, if such presumption is to be repelled by evidence, the Jury are the only judges of the weight of such evidence that, if the Court did not proceed on the principle first stated, then they had taken upon themselves the province o: deciding on the weight of the testimony offered, and had not submitted it to the Jury ; and thus, on either ground, the opinion and instructions, under which the Verdict was rendered, were erroneous. —Note in Original Edition.
     