#### WILLIAM McKINDER *vs.*THOMAS B. LITTLEJOHN, ADM’OR OF WILLIAM VAUGHAN, DEC’D.

Where a debtor relies apon the presumption of payment from 1he lapse of time, and the creditor endeavors to rebut that presumption by shewing; his insolvency, the creditor may also offer in evidence the circumstance of the debtor’s residing at a groat distance from him, as tending to shew that, although the debtor may have had property for a short timo, yet the creditor had not an opportunity of knowing that fact and of getting satisfaction out of that property.

The case, *McKinder*v *Littlejohn,*1 Ired. 66, cited and approved.

Appeal from the Superior Court of Law of Granville County, at Fall Term, 1843, his Honor Judge Manly presiding-.

This was an action of debt, commenced the 31st of July, 1837,011 a bond given by the defendant’s intestate and one John Vaughan on the 15th of August, 1811, payable the 31st of August, 1811. The defendant pleaded “payment,” and to establish it relied on the presumption of payment from the lapse of time. This presumption was attempted to be rebutted on the other side by proof of the insolvency of the defendant’s intestate, connected with his residence at a great distance from the place where the plaintiff resided. It was admitted that the plaintiff resided in Norfolk, Virginia, and the defendant’s in tes*199tate, after his removal in 1812 from North Carolina, where the debt was contracted, resided until his death in 1819. . - ’ in the State of Mississippi. John Vaughan, the other obli-gor, it was admitted, had always been insolvent. The tiff’s witnesses deposed that the defendant’s intestate was insolvent, when he came to reside in Woodville, Mississippi, in the year 1812; that his practice then as a physician did not more than defray his and his family’s ordinary expenses ; that he was never able to pay for the house in which he lived,, of which the price was only $250; that he left at his death some of his store bills unpaid, and from the insolvency of his estate they never will be paid ; that he was insolvent when he died, leaving his only child upon the charity of his friends. It was also proved that, a short time before his death, he wrote a desponding letter to his brother in this State, complaining of his continuing distressed circumstances as to property and his bad state of health, and begging his brother to take care of his child in case of death, which he shortly expected. It was proved that this letter was of the same character with many others to his brother during his residence at Woodville. The plaintiff’s witnesses .deposed, that, at no time from his coming to settle at Wood-ville to his death was he able to pay a sum equal to this debt, except the current bills for the support of himself and his family, and indeed that he did not pay all of them. On the other hand the defendant’s witnesses deposed, that when the defendant’s intestate went to Wroodville in 1812, he was insolvent; that he then commenced the practice of medicine and had a very good practice, supposed to be worth upwards of $2000 a year up to the year 1817 or 1818, when from his bad health he was compelled to give up his profession ; that he- then obtained five or six thousand dollars worth of goods, and carried'on merchandize for about eighteen months until his death in 1819 ; that he was in possession of a dwelling-house and lot, a store house and a doctor’s shop ; that he was reported to be solvent and in good credit ; and these witnesses gave it as their opinion that he was able in those times to have paid the debt now sued for.

*200The defendant’s counsel prayed the Court to inslrncfthe as follows, 1st That if upon the evidence before them • * ' * they should be of opinion that the defendant’s^ intestate during his residence at Woodville in Mississippi, solvent and able to pay the p'aintiff’s debt, then the presumption of payment was not repelled, and they should find for the defendant onrhis plea of payment. 2dly, That if, upon the said evidence, the fact of the intestate’s solvency during his said residence was left in doubt, so that the jury should be unable to say from the evidence, whether he was solvent and able ter pay or the contrary, then, as it was for the plaintiff to-shew the insolvency affirmatively, the defendant was entitled to the benefit of the doubt, and the jury should find for the defendant on his said plea. 3dly,That, if the evidence did not shew to the jury a continued inability in the said intestate to pay, from the 21st of August 1811, till his death, the presumption of payment remained, and the jury should find for the defendant on his said plea.— 4thly, That, if the jury believed the witnesses for the defendant instead of those-for the plaintiff, and found the solvency and ability of the said intestate to be as stated-by the said witnesses for the defendant, then the presumption of pay. ment was not repelled, and they should find for the defendant on his said plea. Stilly, That, in passing upon the plea of payment, the jury were not at liberty to consider the residence of the parties, that is to say, that of the plaintiff in Virginia1 and that of the intestate in Mississippi, as repelling the presumption of payment or as affording any evidence tending to repel the same.

The Court declined to-give these instructions as prayed for, but instructed the jury, that whenever a bond like the one before them had- continued to lie for twenty years or more after it fell due, the law declared it should thereafter lie under a presumption of payment — that the jury, therefore, in investigating the case, should begin by assumingthe legal position, that the bond in question is paid, and then proceed to enquire whether there is proof sufficient to satisfy them that it is not paid? that it would be erroneous for the *201Jury to consider the case upon the point of enquiry, whether there is proof of payment in the defence; that the to entitle himself to recover, must make out, as a part of his case, not only that the bond was executed, but that it remains unpaid; that proof of the negative was an active duty, which the law cast Upon the plaintiff, and, if he had not performed that duty, he had not entitled himself to the verdict of the jury. The jury were then directed to consider the whole testimony, and determine, whether the presumption oí fact, that the bond was paid, had been disproved or rebutted— whether the proofs with regard to the pecuniary embarrassments of the defendant’s intestate and the distance of his separation from the plaintiff, taken together, were sufficient to satisfy them, that the said obligor could not, and in point of fact did not, pay the bond. If theproof be sufficient and the jury be satisfied, that the presumption already explained has been repelled, there should be a verdiet for the'plaintiff; otherwise, if the jury be not satisfied, the presumption which the law raises must have its effect, and the verdict should be for the defendant. The jury were informed in conclusion, that the Court could not say there was no prdoftending to shew that the bond was not paid. There was believed to be some proof (such as that already mentioned) bearing upon this point, and it was submitted to them. Whether it be sufficient for the purpose was a question for the decision of the jury.

The Jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.

*Graham*for the plaintiff.

*Badger*and *Iredell*for the defendant.

Daniel J.

The defendant now insists, that if upon the testimony in this case the jury hada *doubt,*whether William Yaughan, at any time whilst he remained at Woodville, was able to,pay this debt, then he was not *insolvent*within the meaning of the law, declaring that circumstance sufficient to repe'l a presumption of payment after a lapse of twenty years. The answer is, that the Court left it to the to *202say, whether William *Ymghm"could, not pay” ánx'mg*that l'ine* And R>e jury by their verdict havesaid, that he could not have paid the debt during that time. If the evidence had tjeen sufficient to have raised a *doubt*in their minds, we suppose that they would not have returned a verdict, that he was *not*at any time able to pay the debt. William Vaughan was insolvent when he gave the bond, and also when it became due. He removed to Woodville, a considerable distance from the plaintiff’s residence; and in eight years thereafter he died insolvent. The Judge, in his charge to the jury, did, it is true, mix up the circurbstance of distance between the parties, upon the point whether Vaughan could, and at any time did pay, during that period. The defendant contends, that for a small space of time, (18 months,) in the said twenty years, that Vaughan was, (by his witness) proved'to have had in his possession, at Woodville, a house and lot and other property worth from five to six thousand dollars. And therefore, that he, Vaughan, was not *coniin-nously insolvent,*during the whole space of twenty years from the time the bond became payable. The law makes it the duty of the debtor to seek his creditor and pay him. Take the fact to be, then, that for the space of 18 monthSj during the latter'part of the first seven or eight years, in the twenty years from the time the bond became payable, Vaughan did have at Woodville the means of payment; then the circumstance of distance between the debtor and the creditor,. might, w e think be left to the jury, with the fact of a continuous insolvency duringthe residue of the twenty years, as some evidence, that the debtor did not pay the debt during that small space of time. It comes within what was said by this Court, *(McKinder*v *Littlejohn,*1 Ired. 66,) that the repelling of the presumption will not be hindered by the fact, that the debtots had a reversionary interest in certain slaves, which vested in possession but a short time before the suit was brought, when it did not appear that the creditor knew of the existence of the reversionary interest. The distance is material, only-as preventing the possession of property by (he debtor for but a short period from counteracting *203the effect of insolvency, as a circumstance repell-iug the pre sumption of payment. For if the debtor, living: more than a thousand miles from the creditor, and in a situation between which, and the place of the creditor’s residence there was but little communication, should have had in possession property of value to pay the debt but for a very short lime, so that the jury should think the creditor did not know of it and could not *get*payment out of that property, it might be’ regarded as being, substantially, a continued insolvency: especially, where, as here, the debtor seems barely to have had possession of property, without its appearing how he got it and whether he had paid for it. Immediately after-wards, his state was that of absolute destitution. Therefore we think the residences of these parties was, in reference to the other facts, some evidence in aid of the insolvency and general state of destitution of .the debtor. Lastly; we think of course, the Court ought not to have charged the jury, as prayed, that if Vaughan had in his possession any property at Woodville or any where else, .then that fact took him out of the state of insolvency, which would -repel the presumption of payment, after the lapse of twenty years. Although he might be able to live, yet if wholly unable to pay this debt, it is justly to be considered insolvency throughout. The Judgment must be affirmed.

Per Curiam, Judgment affirmed.