#### STATE TO THE USE OF JOHN WALKER vs. WM. A. WRIGHT, ADM’R. *et al.*

If a debtor has had the *means*or *ability*to pay the debt sued for during 12 or 15 years before suit is brought, this is sufficient to meet the effect of reputed *156insolvency, which was relied on to repel the presumption of payment from the lapse of time, although he may not have been able to pay his other debts during that time.

The law gives to the lapse of time an artificial and technical weight beyond that which it would naturally have, as a mere circumstance, bearing upon the question of payment.

AotioN of debt, tried before his Honor Judge Bailey, at the Spring Term, 1855, of New Hanover Superior Court.

The plaintiffs declared on the administration bond of ¥m. A. Wright, as administrator of William C. Lord, to which the other defendants were sureties, and the breach assigned was the non-payment of a judgment for $536.11, obtained by the relator against defendants’ testator, in 1820.

The pleas were, “ conditions performed ; and not broken ; and payment.”

The execution of the bond declared on was admitted, and evidence of the judgment of 1820, was put in.

To fix the defendant with assets, he proved that the intestate died in the summer of 184/7, and that his mother died some three or four months before him ; and he exhibited her will, by which certain property was directed to be sold, and the money divided among her next of kin. The executor of the mother was then called, by whom it was proved, that under the provision in this will, he had paid to the administrator of Wm. C. Lord, the present defendant, the sum of one thousand dollars. ($1000.)

The defendant relied upon the presumption of payment arising from the lapse of time under the act of Assembly. Rev. Statute.

To rebut this presumption, the plaintiff proved, that in the year 1819, the intestate, Lord, had failed — indebted to the amount of fifty or sixty thousand dollars, and was notoriously reputed to be entirely insolvent from that time till his death; and that in the year 1835, one McRae, who was the deputy United States marshal, had sundry executions against the said Lord, and after diligent search could find no property; and upon application to him (Lord) was told by him that he had no property.

*157In reply to this evidence, the defendants showed that for 12 or 15 years before his death, the intestate, Lord, liad the ability and means to pay the debt sued for, and the same might have been made either by a *fi.fa.*or *oa. sa.*

Ilis Honor charged the jury, that if they were satisfied that the intestate, Lord, had the ability and means to pay the debt sued for, although he could not pay any other of his debts, the law presumed it to be paid, and they ought to find for the defendants. To which plaintiffs excepted.

Yerdictfor the defendants. Judgment and appeal to this court.

*Moore,*for the plaintiff.

*J. II. Bryan*and TFm. *A. Wright,*for the defendants.

EeaesoN, J.

In *Buie*v. *Buie,*2 Ire. Rep. 87, the Judge, below, charged “ whether the presumption of payment was repelled or not, was not to be left as an open question of fact for the jury : for, if so, and the lapse of time had no more than its natural weight as a circumstance bearing upon the question of payment, the act of Assembly would amount to nothing; whereas the law intended to give to the lapse of time an artificial and technical weight, so as to require the jury to presume a payment unless the presumption was repelled; and it was a question of law for the court what circumstances, if true, were sufficient to repel it.” This instruction was approved of by the supremo court.

This decision was not supposed to conflict with *Matthews*v. *Smith, 2*Dev. and Bat. Rep. 287; *McKinder*v. *Littlejohn,*1 Ire. Rep. 67, where it is held *“*proof that the debtor had the means or opportunity of paying, is in law sufficient to repel the presumption.” This doctrine was acted upon and reaffirmed in *McKinder*v. *Littlejohn,*4 Ired. 198, where the ruling of the Judge below, *i. e.,*“ to repel the presumption, the evidence must satisfy the jury, that the obligor *could not, and in point of fact, did not*pay the bond, ” is sanctioned by the court.

So the law is settled. *Mr. Moore,*for the plaintiff, drew in *158question the soundness of this doctrine “ upon the reason of the thing,” and put this case : one owes ten debts of $1000, and has property only to the amount of $1000: if the fact of his owning this propert}', is sufficient.to prevent the presumption of payment from being repelled when an action is brought by one of the ten creditors, it must be on the assumption that property to the value of $1000, has paid debts to the amount of $10,000 ! which is impossible in the nature of things.

Carry out the argument: one owes ten debts of $1000 each, and has property only to the value of $9000; if the fact of his owning this property is sufficient to prevent the presumption of payment from being repelled when an action is brought by ■one of the ten creditors, it must be on the assumption that property to the value of $9000 has paid debts to the amount of $10,000, which is impossible in the nature of things! So the result is, that to prevent the presumption of payment from being repelled, there must be proof that the debtor had property enough to pay all his debts! This is absurd, and shows that the argument is fallacious. The fallacy is in this : It is not supposed that $1000 can, in fact, pay debts to the amount of $10,000, or that $9000 can pay $10,000; but vffien a creditor lets his debt stand for ten years, during all which time nothing is said or done in regard to it, from public policy, the law raises a presumption that it has been paid, and gives to the lapse of time an *a/i'tíficial and technical*weight beyond that which it would naturally have as a mere circumstance bearing upon the question of payment.

In our case the action was commenced in 1851: the plaintiff’s debt was reduced to judgment in 1820, (upwards of thirty .years): to repel the presumption, the plaintiff proved that in 1819, the intestate of the defendant had failed; indebted to the amount of $50,000 or $60,000, and was *notoriously reputed to he entirely insolvent*from that time till his death : that in 1S35, the Marshal of the United States had sundry executions against him, and after diligent search, was unable to find an}- property, and on application to the intestate, was told by him, that he had no property. The defendant then offered evi*159dence to show, that for 12 or 15 years before his death, his intestate had the *ability*and *means*to pay the debt sued for, and that the same might have been made either by *fi. fa.*or *ca.*sa.: Ilis Honor was of opinion, that conceding the proof made by the plaintiff to be sufficient (if standing alone and unexplained) to repel the presumption of payment, yet, “ if the jury were satisfied, that the intestate of the defendant had the ability and means to pay the debt sued for, although he could not pay any other of his debts, this fact took from the matter, proven by the plaintiff, its force and effect, so as to make it insufficient in law to repel the presumption of payment.” This is his Honor’s charge in substance, and we think it is in strict conformity to the law as held in *Buie*v. *Buie.*

Whether the evidence that the intestate was *“*notoriously reputed to be entirely insolvent” from 1819, until his death, together with the other matters stated, was in law sufficient to repel the presumption of payment, we do not decide ; but we think it clear, that if the jury were satisfied that this *notorious reputation of entire insolvency*was unfounded, aud that in *point of fact,*the debtor, for twelve or fifteen years before his death, had the *ability*and *means*to pay the debt sued for, and that it might have been made by *fi. fa.*or *ca. sa.,*it was the duty of the court to instruct the jury that there wasno evidence to repel the presumption of payment. There is no error.

Pee Cueiam. Judgment affirmed.