#### DANIEL McKEETHAN v. WILEY ATKINSON, *ET AL.*

The presumption of payment, created by the act of 1828, from the lapse of ten years, is rebutted by the payment of a part of the sum within ten years before suit brought. And this is the case as to the joint obligors who are sureties as well as the principal who makes the* payment.

This was an Action of Debt, tried before his Honor, Judge Saundees, at the Spring Term, 1854, of Bladen Superior Court.

The plaintiff declared upon a bond for one hundred and twenty-two dollars payable to John McKeethan, Administrator of the estate of Dugald McKeethan, deceased, due twelve months after date, and dated the 6th of February, 1887, signed by G. J. McKeethan, *W.*Atkinson, and Robert Murphy, on which there was a credit of $13.03, endorsed the 5th of October, 1844. This suit was brought the 5th of April, 1850. The plaintiff relied on the presumption of payment from the length of time, and showed that both Atkinson and Murphy were solvent.

To meet this objection, plaintiff discontinued as to the obli-gor, G. J. Atkinson, and introduced him as a witness, who proved *422that the bond was executed by him, Atkinson, and Murphy; that the payment of $13.08, endorsed on the bond as paid on the 6th of October, 1844, was correct; that he was the principal in the note, and Atkinson and Murphy were but sureties, and that in September, 1844, he made an additional payment of sixty dollars.

Upon this state of facts, the Court was of opinion that the presumption of payment was rebutted, and so instructed the jury, who thereupon rendered a verdict for the plaintiff.

Rule fora«« *de novo ;*rule discharged, judgment and appeal.

*Person,*for plaintiff.

*D. Reid,*lor defendants.

Pearson, J.

The question is, does the fact that a principal in a bond makes a payment of $13.03, and another payment of $60, both within the time of presumption, (10 years,) rebut, as against the sureties, the presumption of payment, which is made by our statute from the lapse of ten years ?

Without entering into the question whether the acknowledgement of a debt which is barred by the statute of limitations, by a partner after the dissolution of the firm, will revive the debt as against others who had been members of the firm, or whether a payment or acknowledgement by one obligor, after the time necessary to make a presumption of payment, will rebut that presumption, we are clearly of opinion that a payment made by one obligor, before the expiration of ten years, takes the case out of the rule of presumption, and of the reason upon which it is founded, until there be ten years after the time of the payment.

The rule is based on the ground, that if nothing is said or done by the parties, by which the existence of the debt is recognised, for the space of ten years, (by our statute) the debt, although secured by deed, shall be presumed to have been paid.

But if a payment has been made by one of the parties, say the principal obligor, whoso duty it was to make the payment *423within ten years, then something has been dono, and the reason of the rule ceases. If this be not so, the principal may mate payments towards the principal debt, and may pay up the interest annually, and still, after the expiration of ten years, the sureties may insist the law raises a presumption that the whole debt has been paid. The reply is, the payments were made for your benefit — if sued, you could have claimed credit for the amount; and, in short, the note has not been suffered to lie over without anything being said or done, for more than ten years. The creditor has been diligent, and the maxim “ *leges vigilanti-bus non dormientibus*” applies to you.

Judgment affirmed.