#### THOMAS LOWE, EX’R. *vs.*JESSE SOWELL *et al.*

Wliore a bond lias been standing for ten years, and the presumption of payment from tlio lapse of time is relied on, contradictory and false statements made by the defendant as to the time, place and manner of discharging the bond, are not sufficient to repel the presumption.

AotioN of debt, tried before Saunders, Judge, at a Special Term of Moore Superior Court, November,-1856.

This case was before this Court at its December Term, 1855, (reported 3 Jones’ Rep. 67). The plaintiff offered evidence as to a credit, in 1841, of twenty dollars endorsed upon the bond sued on, which was dated in 1835, for the purpose of rebutting the presumption of payment, which was in the handwriting of a person now deceased, but there was no evidence of its being with the knowledge and sanction of the defendants.

*236
      *Joel /Sullivan*was then examined as a witness. He stated that he was indebted to the defendant Jesse Sowell, and received the bond in sn.it, which is for $276, from the testator of plaintiff, with authority to arrange and settle it, he being surety on it, and it was agreed by Sowell and the testator, that the bond should be credited with whatever he (Sullivan) owed him (Jesse Sowell,) and he was to account with the testator for that amount; that a calculation was made by one Daniel, now dead, and by A. E. Sowell, a son of the defendant Jesse, and they reported, as due to defendant, $308,93, up to 19th of September, 1845, which was less than the principal and interest of the bond held on him by the testator. ' Jesse Sowell was dissatisfied with the calculation, and objected to the credits being put on the bond, but afterwards gave up the papers on Sullivan. Witness afterwards saw Jesse Sowell, who was still dissatisfied, and witness offered to give him bach the papers if he could point out any error in the calculation ; this he declined, but still said there was an error, and that the amount due was enough to pay the debt to Hoover’s estate.

The defendant E.- Q. Sowell, offered in evidence a bond for $65, dated 10th of August, 1843, given by him, with his brother as surety, payable to plaintiff’s testator,-and stated that this bond was given for his part of the pork, which was the consideration of the bond for $276,93, and at that time the testator declared that that satisfied, his bond. With this understanding, A. F. Sowell became surety to this bond *of*$65, and there was evidence going to show that this latter bond had been paid off by the defendant E. Q. Sowell.

The plaintiff then offered evidence tending to show that this bond of $65 was given for another and a different bond than the one sued on.

The defendants relied upon the presumption of payment arising from the lapse of time. They also contended, that they had shown an actual payment of the bond sued on.

The Court instructed the jury as follows: “That as the credit of $20 had been entered without the defendants’ au*237thority, this credit could not operate as an answer to the presumption of payment; but if the jury should be satisfied that the settlement was made with the knowledge of Jesse Sowell,, he then acknowledged that the bond of $276,93, was due. Claiming a greater credit than the $308,93, as reported from the calculation made, and insisting that the whole debt was paid, would be such an acknowledgment as to repel the presumption of payment.” Defendants excepted.

The counsel for the defendants asked his Honor to instruct the jury, that this acknowledgment of Jesse Sowell, if such it was, being made after the expiration of ten years, could not 'operate to answer the presumption so far as the other defendant, E. Q. Sowell, w’as concerned.

The Court refused so to instruct, but told the jury that, “ if the defendant, E. Q. Sowell, insisted that the bond of $65, dated August, 1843, was given as his proportion of the bond of $276,93, it would be such an acknowledgment, on his part, as to repel the presumption of payment, whether the jury should allow the credits for the amount of that bond or *not.”*Defendants excepted.

Yerdict and judgment for the plaintiff. Appeal by defendants.

No counsel appeared for the plaintiff in this Court.

*Kelly*and *Houghton,*for the defendants.

Pearson, J.

We do not concur with his Honor in the view taken of the question presented by this case. If, after a note has been standing over for more than ten years, the obligor says, “ I paid the note 'in full at a particular time and place,” and at the trial relies on the presumption of payment raised by the statute, the fact, that he is not able to prove that he did pay the note in full at the particular time and place, or even proof that he did not then and there pay it, is not sufficient to repel the presumption. The inference or implication to be drawn from these facts, would not have been *238such an acknowledgment of a debt as would repel the bar of the statute of limitations, even at the time when the courts leaned against that plea, and held almost any admission or promise sufficient to have that effect. It cannot be allowed to have the effect of rebutting the presumption of payment, without introducing all the evils (and perhaps more) which grew out of the old notion in regard to the statute of limitations. It would be better to repeal the statute at once.

So, if the defendant says, “ I satisfied the note long ago in a settlement made with a particular individual, and surrendered up notes to the full amount, although there was a mistake, and the credit in full was not. entered,” the fact, that he is not able to show the mistake, or if the plaintiff proves that, in truth, there was no mistake, and that the notes surrendered did not reach to the full amount of the note and interest then due, but only to the amount of the. credit which was entered, is not sufficient to rebut the presumption.

So, if the defendant says, *“*I satisfied the note by giving another note, with A. B. as surety, which latter note, I have also paid off,” proof that the last note was not given in satisfaction of the note sued on, but in satisfaction of another and a different note, is not sufficient to rebut .the presumption ; such proof only shows that the defendant had not paid at the time and place, or in the manner alleged, but *non constat*that he did not pay at some other time or place or in some other manner, and the law raises a presumption to this effect, to defeat “ stale debts.” *V&ivire dc novo.*

PeR Cubiam. Judgment reversed.