#### Sanderson, Pl’ff in Error, vs. Olmsted, Def't in Error.

A statute providing for tho limitation of actions, does not away or abrogate the common - law presumption of payment, from lapso of timo. Tho Statute of limitations of. Wisconsin, was passed to. aid defences to stale demands, and not otherwise to affect the rules of the common law, than as furnishing an additional method of availing one’s self of it.

It is not necessary for a defendant to have- had a residence within the State for twenty years in order to make the common-law..Drosumption of payment a defence, whore that presumption would attach, had there been no Statute of the State on tho subject of residonce.

The question involved in this ease is hold to he an open one in this State, and tho Courts are left to apply the common-law principle at discretion, without violating legal adjudications, and it is deemed the best policy to adopt the eommon-law principle. To adopt a different rule would often work injustice,, and bo fruitful of litigation and inconvenience.

Tho rule of the common law is a harmless one; and in this country oan never work injury, if a proper vigilance is exercised by a creditor against his debtor.

A presumption of payment is easily repelled,- if -tho assumption of-payment being made, is false.

Error to Milwaukee^ County.

This was an action, of assumpsit upon- a. ¡promissory jjpte. Plea, the general issue.

*191The-cause was tried" at the. fall Circuit for Milwaukee County, 1848, and a verdict found for the defendant in error for the amount of the note in question.

The defence set up on the trial of the cause was that the note in question was a stale demand, and that by the presumption of the common law it had been paid. To this was interposed the Statutes of Wisconsin as to the limitation of actions, which, it was assumed,, required a residence of the defendant below, of twenty years before suit brought in order to a, defence. No evidence was shown that the note was or was not paid, and the presumption of law was relied upon, that by lapsq of time it was presumed to have been paid; The Judge charged the- jury in effect that the note in this case being a witnessed note, would not be barred, if sued in this State, unless the defendant had resided here for twenty years; the note having been executed out of the State, and not having resided here for that period of time. That the Statute of this State overruled this common-law presumption of payment; and that iu the absence of proof of payment it was the duty of the 'jury, in law, to find a verdict for the plaintiff below. The defendant below excepted to such instructions of the Judge, and the case came up on such exception.,

*Ji. D. Smith*for the Plaintiff in Error-.

*J; Downey*for the Defendant in Error.

On. the part of the plaintiff in error it was.insisted that, after the lapse of twenty years, a note is presumed, to have been paid.

That although the Statute of Wisconsin did not bar the ¡jifit, yet. the common-law presumption of payment,, ariff-*192ing from the staleness of the demand, was available as -a defence, and should in this case prevail; and to this point reference was made to the *Revised Statutes of*Wisconsin, 261; 2 *Starhie on Evidence,*682-3; 1 *Greenleaf on Evidence,*431; *5 Espinasse’s Rep.,*52; 7 *Term. Rep.,*270; 4 *Wendell’s Rep.,*91.

That, by current authorities, lapse of time raised a presumption of payment, which presumption, if not repelled by proof, the jury should find the note paid, and render a Verdict accordingly: 8 *PióJcering’s Rep.,*187; 1 *Dallas’ Rep.,*85'; 2 *Vok Cowen*& *Éiü's Notes,*323 *to*327.

On the páirt of the defendant in error it was argued that ■no presumption of payment arose where there was *k*Statute of limitations, and by which Statute the demand was hot barred under its provisions: 1 *Dowl.*& *Ryl. Rep.,*16; *Camper’s Rep.,*214'.,

Atld that, so far had this doctrine been been carried, when a period of time is excepted'from the Statute of limitations, thereby enlarging the time for barring the demand, it had been held that so much time as was thus excepted, must elapse in addition to the period of twenty years, before payment would in law, be presumed to have been made: 2 *Crunch)*184; 10 *Johnson’s Rep.,*414; 16 *do.,*214; *Cowen*& *Hill’s Notes,*218 *and 219,*and authorities there cited.

*By the Court.*

Stow, C. J.

This was an action of as-sumpsit, brought in the late District Court of Milwaukee County by the defendant in error, on a promissory note. The cause was tried at the last 'Milwaukee Circuit. ■ The facts in the case as presented in the bill of exceptions, and on which the decision depends are, that the note in question was made, and became due, in the State of New *193Tork, in 1817; that it was attested by a subscribing witness; and that the maker has resided within our jurisdiction since 1835..

It was conceded on the argument, that the defendant below having resided here less than twenty years, and this being an attested note, which is not barred by the Statute, in less than that time, the Statute of limitations could not be pleaded to it. But it is contended by the defendant that though the note is not barred by the Statute, it is by the common law presumed tobe paid; and that he is entitled to the benefit of this presumption under the general issue-. On the other hand it is insisted by the plaintiff, the defendant in error, that our Statute of limitations having adopted the common-law period of presumed payment as the term beyond which an action on a bond, attested note, &c., shall not be prosecuted, has in effpet done away the common-law rule on the subject. This argument I understand to mean that, under the provisions of our State no lapse of time can avail the party as a defence unless he pleads the Statute in bar. I do not so construe the Statute. It was undoubtedly passed to aid defences to stale demands; and was not designed, as I conceive, otherwise to affect the rule of the common, law, than as furnishing the party an additional method of availing himself of it. It then becomes necessary to *inquire*whether, to entitle a party to the protection of the common-law presumption of payment after twenty years; he' must have resided for all that period within our. jurisdiction! This is a question.of great importance, and not free from difficulty. It has been decided differently b,y different tribunals, and differently by the same tribunal at different times. The weight of precedent (for binding *194authority there is none,) would seem to require the en-, tire period to huye been passed within the jurisdiction in which the action is brought. But here the question is an, open one, and one which we are at liberty to settle as we . deem most expedient for the purposes .of justice; and, we think that public policy, and private security, alike will be best promoted by applying the salutary oblivion of the, common law to ail ancient demands, no matter where. contracted, or. where the parties have resided. No good reason is perceived why, while Time’s scythq is destroying in al.1. regions alike the proofs of business transactions, ins' hour-glass should not in an equal extent record the period when those proofs become unnecessary. A different yule would be likely to be attended with great individual, injustice and much public inconvenience. Once let it be known that the stale and out-jawed demands of other states and countries were *prima facie*enforceable against ou.r citizens, until after a residence here of twenty years, all would be exposed, to vexatious and harrassing suits, and many to ruin; while our Courts would soon be flood- . ed with prosecutions of musty claims which none of the tribunals of our sister States, or of Europe, would enters., tain. On the other hand the rule we now establish can work no practical inconvenience or injustice. It does not,, bar an action; and at the outside, only admits a presumption of payment, which- presumption in almost all cases.; where actual payment has not been made, can be easily repelled. Entertaining these views I think the Circuit Judge erred in not leaving the question of presumed pay-. meat to the jury, and that the Judgment of the Cour,t below should be reversed.

Judgment reversed.