#### *Robert W.*Barnwell, Executor, vs. *M. A. Waring.*

Lapse of time, less than sixteen years, with circumstances, *held*to raise the presumption that a judgment was satisfied.

*Before*DeSaussure, Ch., *at*Charleston, April, 1831.

DeSaussure, Ch. The bill is filed, in this case, to oblige the defendant to account for the estate of John Rhodes, which was assigned to the defendant, Morton A. Waring, and others, who are now dead, to pay his debts. The demand of'the complainant is founded on a judgment, confessed for $679, on the 6th April, 1813, by Rhodes and Otis, to the late J. G. Barnwell. Afterwards, on the 16th May, 1816, the said John Rhodes assigned his estate, as a fund for the payment of his creditors, and died soon after, intestate and insolvent. No administration has been taken out on his estate. The assignees possessed themselves of the estate, and have paid many of the debts ; but the debt of complainant remains unsatisfied, and the bill seeks relief. The answer admits these facts, and sets up two defences, viz., first, that the demand of complainant is barred by the statute of limitations, or lapse 'of time ; second, that, if not barred, there is a good discount for part thereof, on Mr. Rhodes.

The first question depends on dates. From the confession of judgment in the month of April, in .the year 1813, to the filing of the bill, in March, 1829, is not quite sixteen years. It is acknowledged that the presumption of payment, from the lapse of time, arises at the end of twenty years; but the presumption may arise earlier, under peculiar circumstances corroborating the presumption. I do not perceive any such circumstances in this case. Upon the assignment of Mr. Rhodes, for the benefit of his creditors, it was natural that the creditors should forbear till the assignees could sell the estate, and apply it to the benefit of those entitled. If the complainant, or his testator, was late in applying to his assignees, the *laches*was not so great as to *284amount to a bar of the demand; but it was so great as to authorize the assignees to make payments to those more vigilant creditors who applied — so that the Court will not disturb the arrangements and payments actually made to other creditors, before this bill was filed, and will direct the payment of what may be due to the complainant, out of the funds remaining in the hands of the assignee.

What remains due to the complainant depends on the second question, relative to a note alleged to have been due by J. G. Barnwell to Mr. Rhodes, or to Rhodes and Otis. The complainant insists that the note has been barred many years. It appears to have been given anterior to 1807, for in that year Mr. Rhodes gave a credit on the note. No demand, no suit has been shown-since, and Mr. Rhodes, in confessing the judgment in 1813, would not have forgotten to deduct what was due on the note, if any thing was then due. At any rate, it is plainly barred by the statute.

It is ordered and decreed, that the defendant do pay, out of the assets remaining in his hands, the amount of the debt due on the judgment confessed to Mr. Barnwell, but without interest. The costs to be paid out of the fund.

From this decree, the defendant appealed on the ground :

That the lapse of time, and the circumstances of the note never having been taken up by Mr. Barnwell during his lifetime, and the judgment remaining without being revived, or execution taken out, and without any demand being made, for sixteen years, upon the assignees, (although there were frequent advertisements for demands in the papers of Charleston,) ought to bar complainant’s demand after Mr. Barnwell’s death.

The opinion of the Court was delivered by

O’Neall, J.

The presumption of payment, when depending on lapse of time alone, cannot arise in a less time than twenty years; but if other circumstances exist in a case, inducing a reasonable belief that the party would not have suffered the *285debt to have remained so long dormant, unless it had been paid, a less time than twenty years, in connection with, and aided by, such circumstances, may authorize a Court and jury, or a Chancellor, to presume payment. What circumstances, in connection with lapse of time, will be sufficient to raise this presumption, must, in .some degree, depend upon each case. The settlement of other subsequent demands, the contiguous residence of the parties, the poverty of the obligee and affluence of the obligor, the existence of a demand on the part of the obligor, to the amount of the debt due the obligee, and against which the lapse of time would be a bar, and the necessity that the creditor should have claimed payment out of the fund in the hands of an executor, administrator, or assignee, to prevent its being paid away to others, may all very well, when united with the lapse of a great many years, create a reasonable belief, (which is but another name for a legal presumption,) that the debt has been paid.

In the case of *Blake*vs. *Quash*and Pinckney, fourteen years intervened- between the last payment made by the heir and the institution of the suit. “ The heir at law, and the attorney. Lining, in whose hands the bond had been placed for collection, lived in the same street, in the samé city;” Lining was well known to be peculiarly attentive to the-discharge of his professional duty, and “therefore,” (says Judge Colcock, who delivered the opinion,) “ it is fair to presume that the bond was paid.” 3 McC., 340.

In the case before us, upwards of fifteen years elapsed from the confession of judgment to the institution of this suit. During that time, the creditor, Barnwell, and the defendant’s assignors, Rhodes and Otis, have died. No attempt was made to enforce collection — not even a *Ji. fa.*was issued on the judgment ; no demand of payment was made on the assignee, notwithstanding his advertisements for creditors to present their demands. In his possession is found a note on Mr. Barnwell, payable to Bold and Rhodes, for nearly the amount of the judgment. He swears, in his answer, that when he entered on' his-*286duty as assignee, he was told that it was a satisfaction of the judgment, and that he so marked it on the list of debts due by the assignors. It is true that the debt of Bold and Rhodes was not a legal set oif to the judgment of Rhodes and .Otis; but yet it may have been that it belonged to them, and if so, this would have made it a good equitable set oif. The confession of judgment of a different firm could not have concluded the other firm from legally, asserting the debt on the note. It appears that it was given in '1807, and was consequently barred by the statute of limitations, before the confession in 1813 ; but still Mr. Barnwell would, if it had been a just debt, in all probability, have been disposed to pay it, and the presumption arising from suffering his judgment to stand so long without requiring payment, would be, that he considered the note as balancing it.

Taking all the circumstances in the case, in connection with the lapse of upwards of fifteen years, it is a reasonable conclusion that the judgment was satisfied, by an understanding between Barnwell and Rhodes, who lived in the same neighborhood, that the note to Bold and Rhodes should be applied to its payment.

It is ordered and decreed, that Chancellor DeSaussure’s decree be reversed, and the bill dismissed with costs.

Johnson, J., concurred.

Harper, J.

I concur, except as to the expression *“*reasonable belief, (which is but another name for legal presumption.”) I understand legal presumption to come in place of proof, and to be distinguished from actual belief.

*Decree reversed.*