Kennedy v. Executors of Denoon 2 Tread 617, 7 S.C.L. 617

Smith, 3.

This was a scire facias to revive a judgment. The original writ was in the name cf James Kennedy, late sheriff of Charleston district, The judgment was entered up in the name of James T, 0 ° i.. ~ Kennedy only, without the addition. This judgment was signed on the 5th day of November, 1793, and the scire facias issued on the 28th April, 1810. The defendant pleaded payment, and relied on the length of time from entering up judgment till the issuing of the scire facias, about 16 years and a half, as sufficient to raise a presumption of payment, without offering any proof of actual payment ; and to strengthen that presumption, the defendant’s counsel insisted that he ought to have liberty to prove the constant sol-venev of defendant’s testator, and -the embarrass-J .. , , ment of the plaintiffs pecuniary circumstances during this interval. Defendant’s counsel also moved for a non-suit on the ground that the plaintiff in the writ of scire facias had used the name of James Kennedy only; therefore, it varied from the record which had the addition, (i late sheriff of Charleston district.” The presiding judge overruled both these motions, and the jury found a verdict for plaintiff. The motion by defendant is to set aside *618that verdict, and grant a new trial, or non-suit otó an arrest of judgment.

This doctrine of presumption Was first taken up by Lord Hale, who only thought it a circumstance from which a jury might presume payment. In this he was followed by Lord Holt and Lord Raymond, and after them Lord Mansfield, who seems to speak positively, that after a lapse of twenty years a bond shall be presumed to be paid. He has said, that in some cases, a less time might be sufficient ; and eighteen years had been allowed, by Lord Raymond, to be long enough. But judge Buller, in the case of Oswald vs. Leigh, in 1st Durnf. & East, 271. is of opinion that no less than twenty years could of itself form a presumption: and says that even twenty years, when no demand' has been made is only a circumstance for the jury to found presumption upon, and is in itself no legal bar j and in this opinion he only concurs with Lord Hale, who was the- founder Of this rule. And judge Buller asserts, that in those cases, when satisfaction of a bond has been presumed within a less period, some other evidence has been given in favour of such a presumption ; such as having settled an account in the intermediate time, without any notice having been taken of such a demand $ and this opinion seems to fully satisfy the eighteen years allowed by Lord Raymond.

The argument of the defendant’s counsel, that twenty years was fixed on because a bond at five per cent, would, in that time double itself: and by our *619law of seven per cent, it would double in a little * ' more than fourteen years, and, therefore, we ought to adopt that rule and lessen the time, appears to me to be perfectly fallacious. No such reason is given by Lord Hale, or any of his successors, that I have met with. I think the English rule is twenty years^ before the presumption can arise, except accompanied with other particular circumstances, and I can see no reason for lessening it 3 therefore, I think the defendant must fail on that ground.

I think also the second ground equally untenable, for it appeal’s to me there was no such variance as the defendant contended for. As the name of plaintiff was mentioned in the original, as “ James Kennedy,” and also, otherwise called James Kennedy, late sheriff of Charleston district,?? he could then enter up his judgment in his name, either with or without the addition of “ late sheriff of Charleston and no advantage could be taken of it on the scire facias. .

But even if I should be incorrect in this opinion, it would seem that he could not take advantage of it under the plea of payment; but that nul tiel record was the only plea under which this variance could come properly before the court. 1st Chi tty f 480. I am, therefore, of opinion that a new trial ought to be refused, as well as the motion for non-suit and arrest of judgment.

Grimke, J.. concurred.

*620Nott, J.

dissentient. This was a scire facias to " *« . renew a judgment. About seventeen years had elapsed between the judgment and the scire facias. The defendant pleaded solvit ad diem ; and, as evi-^eiloe from vvhieh presumption of payment might arise, in addition to the lapse of time, offered to prove the embarrassed circumstances of the plaintiff, the affluent circumstances of the defendant’s testator, his punctuality in paying his debts, &c.. But this evidence was rejected by the presiding judge, on. the ground that no presumption of payment ought to be left to the jury, within the period of twenty years. The plaintiff of course obtained a judgment; and a motion is now made to set aside that judgment, and grant a new trial, on the ground that the judge misconceived the law, in rejecting the testimony offered.

It appears to me two distinct principles have been confounded, both in the decision on the circuit, and in the argument in this court, to wit; presumption of payment arising from lapse of time, and presumption of payment arising from other circumstances which is only strengthened by lapse of time. It is an established rule of law in England, that a lapse of twenty years, without any other circumstance, affords sufficient presumption of payment to bar an action of debt on bond. 2nd Sts. 826, 27. Seale vs. Barrington, 1st Campbell, 29. Colset et al. vs. Bud et al. 1st Bay, 482. And the same rule applies to an action of debt on a judgment, on a scire facias. Peake, 24. Tidd’s Practice, 19. The reason why twenty years was the period fixed *621in England was, probably, because in that time the principal and interest equal the penalty of the bond; and it is not to be presumed that a creditor will indulge a debtor longer than while he is receiving interest on his money; hence it is argued, and, I think, with some plausibility, that about fourteen years and a half ought in this state to afford a presumption of payment, because, according to our rate of interest, it equals the principal in that time. However, as the English rule has been adopted in our courts, and long acted upon in this state, I am not now disposed to introduce a new one. But the argument would seem to, prove that it ought to be received here, with all the latitude which has been allowed to it there; and cases have been submitted to the jury in England upon a lapse of only sixteen, eighteen and nineteen years. See the cases above quoted.

A doubt has been suggested whether the rule, ought to apply to a judgment, because it is a debt qf record. But when a debt is once admitted to have existed, circumstances going to establish a presumption of payment would appear to be equally strong, without regard to the nature of the debt. Indeed, as far as the reasons abovementioned are to be regarded, they apply more strongly to judgments, than bonds, because they do not always carry interest. If twenty years have not elapsed, the payment of a bond may be proved precisely as the payment of any other debt. A receipt for the second year’s rent is presumptive evidence that the first was paid s *622giving a note of hand affords a presumption that all open accounts are settled. The pecuniary circumstances and the relative situation of the parties may afford presumption, that a debt has been paid, and all these presumptions are fortified by lapse of time. The question does not now go to the effect to be produced by the testimony when admitted, but to the principle of admitting any circumstantial evidence, from whence payment may be presumed within twenty years. I think the evidence ought to have been admitted. Indeed, it is only within twenty years, that proof of any other circumstance is necessary ; beyond that period it is not required, and, in all cases, lapse of time strengthens the presumption arising from other circumstances. Five years under some circumstances would afford strong presumption of payment; ten years under the same circumstances would be stronger, and fifteen still stronger, and twenty years would be conclusive without any cir-.eumstance, until rebutted by evidence on the other side. From the least contract a man can make up, to the highest crime he can commit, such evidence may be admitted; thousands have been convicted of capital offences on presumptive evidence, and the extent of such evidence cannot be known until it is heard. In the present case, a ^mán streightened in his circunjgfances, (to what extent is not known, because tfié evidence was not received) has recovered a judgment against a man in affluent circumstances, prompt and punctual in his payments, after a lapse of seventeen years, and when the debtor is in his grave ; an attempt is made to renew this judgment *623against his executors; and these circumstances, with a lapse of seventeen years, are pot allowed to go to the jury as affording a presumption that the debt was paid. I cannot see upon what principle of law, the testimony was excluded. .Presumptive evidence many times arises from a variety of circumstances, each of which taken alone would weigh nothing, but when taken together would be irresistible. ' If a court may in any case judge of'the weight of evidence, before it is heard, 1 know not where it will stop; I cannot see in any rule by which it is to be governed. It may exclude all circumstantial evidence from, the jury, who are the constitutional judges of the weight of evidence.

By a reference to a few cases, we shall find that testimony of this sort is always admitted. In the case of the Executors of Brenton vs. the Executors of Cannon, 1st Bay, 482. the court say, if no interest has. been paid on a bond for twenty years, it shall be presumed to be satisfied; “ but the war, and a variety of distresses occasioned by the revolution alters the situation of the country greatly, and therefore all these circumstances should have been permitted to have gone to the jury.” In the caser of Williams vs. George, 1 Campbell, 217. the embarrassed circumstances of the defendant were given in evidence to rebut the presumption of payment. Upon the same principle, I should presume the embarrassed circumstances of the plaintiff, or the affluent circumstances of the defendant, might be shown to raise a contrary presumption. In the case of *624 Washington et al. vs. Brymen, Peake on Evid. Ap. lxix. the relationship between the parties is made a ground from which a release is presumed. In the case of Oswald vs. Leigh, 1 Term R. 272. the defendant was permitted to show that he had an estate near the plaintiff, and was regular and constant in all his payments, as affording a presumption that a judgment against him was paid.

In many of the cases which I have enumerated, the testimony was unavailing, and so it might have been in this ease. I give no opinion on that point; it is the principle I look to. Believing that the evidence ought to have been admitted ; that the time which had elapsed, though not of itself a bar to the plaintiff’s demand, added weight to the other circumstances ; and that all ought to have been submitted to the jury, under the direction of the Court, I am for granting a new trial.

Colcqck, J. concurred.