The opinion of the court was delivered December 15, 1853, by
— It was fifteen years, four months, and twenty-five days, after the sealed note of the plaintiff’s testator matured, before this action was instituted for its recovery. No legal presumption of payment, such as, unrebutted, the court would be bound to declare as a conclusion of law, arose in that time, for the authorities all agree in fixing twenty years, from analogy to the English Statute of Limitations, concerning real estate, as the period necessary to such a presumption. But the question is, whether the time that did elapse, was competent, in connection with such circumstances as were offered, to go to the jury, as ground for their presuming payment of the note. What were the circumstances? -That William H. King, the defendant’s testator, at the date of the note, was a merchant, residing and doing business in Greensburgh, where his uncle, Judge Coulter, the plaintiff’s testator, also resided; that Judge Coulter had a running account in the store of Mr. King, from *801836, till March 12,1839, with credits from January 17,1837, to Oct. 23,1837, one of which was on March 31,1837, for $100; that when the book account closed, the amount of it exceeded the amount due on the note; that Mr. King resided in the immediate neighborhood of Judge Coulter, from the time he closed business as a merchant, till Judge Coulter died, and during all that time was able to pay his debts; and that he died sometime after Judge Coulter.
In the case of the Mayor of Kingston v. Horner, 1 Cow. 102, Lord Mansfield used the following language: “All evidence, is according to the subject-matter to which it is applied. There is a great difference between length of time which operates as a bar to a claim, and that which is only used by way of evidence. A jury is concluded by. length of time, that operates as a bar, as where the Statute of Limitations is pleaded in bar to a debt; though the jury is satisfied that the debt is due and unpaid, it is still a bar. But length of time used merely by way of evidence, may be left to the jury to be credited or,not, and to draw their inferences one way or the other, according to circumstances. Eor instance, there is no Statute of Limitations that bars an action • on a bond, but there is a time when a jury may presume the debt to be discharged; as where no interest appears to have been paid for sixteen years. But if a witness is produced to prove the contrary, as by .showing the party not to have been in circumstances to pay, or a recent acknowledgment of the debt, the jury must say the contrary.” More accurate, and more to our present purpose, are the words of Chief Justice Gibson, in Henderson v. Lewis, 9 S. & R. 384, where, after speaking of the rule of twenty years, as in the nature of a Statute of Limitations, furnishing indeed, not a legal bar, but a presumption of facts, though less than conclusive, yet prima facie evidence of it, he says: “When less than twenty years has intervened, no legal presumption arises, and the case not being within the rule, is determined on all circumstances, among which the actual lapse of time, as it is of greater or less extent, will have a greater or less operation.” And again, “the presumption, (from twenty years,) is not subject to the discretion of the jury. They are bound, where it operates at all, to adopt it as satisfactory proof, till the contrary be made out, and hence, when we hear of less than twenty years being left to the jury, it must be understood as being in connection with other circumstances, and not as making out the defendant’s case in the first instance, but as going for just as much, as the jury might under all the circumstances, estimate it to be worth.” To the same effect it was ruled in Lesley v. Nones, 7 S. & R. 410, that the law does not positively presume payment of a judgment after *81nineteen years, but it is a question for the jury. See also, Cope v. Humphreys, 14 S. & R. 15.
In Tilghman’s Ex’ors v. Fisher, 9 W. 442, it was expressly ruled, that though twenty years are necessary to a legal presumption of payment; yet circumstances may be shown, in connection with the time that has elapsed, which will authorize a jury to find for the defendant; and we applied this rule last term, to the ease of Clark & Co. v. Curran, (not reported.)
These cases are sufficient to indicate the distinction, in virtue of which we think the evidence, as presented in the defendant’s second offer, ought to have been received. The competency of such evidence, does not depend on a particular period of years, though its effect will be proportioned to their number. The presumption strengthens as the time approaches to twenty years, and the circumstances needed to establish it, may be measured by a diminishing scale.
The further the time stops short of twenty years, 'the more cogent and decisive must be the circumstances relied on; just as the further we advance beyond twenty years, we require more persuasive circumstances, to rébut the legal presumption. Twenty years, assumed as the point for that presumption, the scale is reversed, by which we measure the circumstances that tend to establish, or countervail it. In both instances, it is for the jury to apply the proofs, under the direction of the court. If evidence be offered, which in the judgment of the court, will, in connection with the lapse of time, reasonably tend to convince the jury, that a sealed debt has been paid short of twenty years, or that it has not been paid, notwithstanding that period, it is the duty of the court to receive it, and to submit it to the jury, with such instruction as shall enable them to estimate it-at what it is really worth. The point to be attained, is moral conviction of a fact; and whilst it is not to be founded on evidence insufficient to convince reasonable men, we are not to exact mathematical certainty, nor to expect more than moral demonstration. We are far from saying, that the evidence offered in this case, was adequate to persuade a jury that this note had been paid; but we are clear, both on reason and authority, that it ought to have been submitted to their consideration.
We see no other error in the record, than the rejection of the evidence, when it was offered in support of the presumption of payment. There was no evidence of an application of the book, account to the note, by any act of the parties, and the mutual demands did not extinguish each other by operation of law. Hinckley v. Waters, 8 W. 260; Post v. Carmalt, Ib. 406. Nor was there error, in rejecting the evidence under the plea of set-off, after the Statute of Limitations had been replied. The statute is a rule of evidence, as well as a bar to a recovery, and *82operates against a simple contract debt, after six years, whether it be sued nponj' or come in by way of set-off.
The judgment is reversed, and a venire de novo awarded.
Black, 0. J., and Lewis, J., dissented.