#### *Williams*& *Clinton vs. John Sims and others.*

Bill by attorneys, against a sheriff and his sureties, for an account of moneys collected by the sheriff during his term of office, held, on evidence of demand on the sheriff four years before the filing of the bill, to be barred by the statute of liminations.

To such a bill, the representatives of deceased sureties ought to be mado parties.

Lapse of time, less than twenty years, and other circumstances, *held*to warrant the presumption of payment.

*Before*JohnsoN, Ch. *at*Lancaster, June, 1843.

The Chancellor. In 1825, the defendant, John Sims, was elected sheriff of Lancaster district, and the defendants and Robert M. Gill, Robert M. Crockett, Nathaniel Barber and David George, all of whom have since died, joined as sureties in a bond to the Treasurers for the faithful discharge of the duties of his office. The complainants are partners, practising as attorneys in the court for that district, and the bill charges that Sims, during his continuance in office, which expired in 1829, received on executions in cases in which they were the attorneys of record, large sums of money on their account, and by his neglect to enforce executions which were lodged in his office, in which the defendants removed from the State or became insolvent, had lost to them other large sums of money, amounting, in the whole, to $5,123 65. That ,Sims became utterly insolvent, and removed from the State, and without the jurisdiction of the court. The prayer of the bill is, that the defendants may account to complainants for the sums so received by him on account of complainants’s taxed costs, and the sums lost by his negligence. The defendants, in their answer, insist on the statute of limitations, as a bar to their liability to account, and on the lapse of time, and the negligence of the complainants as to presenting their demands against Sims before he left the State, and that if they are liable to account, the representatives of the deceased co-súreties ought to have been made parties. , Sims left the State in November, 1838, and the bill was filed in April, 1843, more than four years after Sims left the State, and the complainants, as if anticipating the plea of the statute of limitations, state in their bill that about the time he was leaving the State, Sims remarked to the complainant, Clinton, that he would *54come back next fall and settle with him — and in connection with these defences, it may here be stated, that Sims was again elected sheriff of the district in 1833, and served for another term of four years, which terminated in 1837. The complainants also volunteer to state in their bill, that complainant, Clinton, borrowed several small sums of money from Sims, for which he gave his promissory notes, whilst he was sheriff. The amounts are not recollected, but they insist that the notes were not to be paid until complainant and defendant, Sims, as sheriff, had a settlement, and in that settlement they were to be taken up— and it is avered that they were given on the faith of his having money in Sims’s hands, as sheriff. That the statute would bar these demands, is not now an open question — that it will, is distinctly recognized in the case of *Wright vs. Hamilton, 2*Bail. 51. It is, in fact, a purely legal demand, on which an action of assumpsit at law would have been the appropriate remedy against Sims himself, or covenant or debt on the bond against his sureties, and it may well be questioned whether a demurrer to this bill, for want of jurisdiction, would not have been sustained. In *Williamson vs. King,*McM. Eq. 41, the bill was dismissed on that ground, and that was a case exactly like this in all material circumstances — but the question has not been raised by the pleadings, and I will proceed to consider of the merits. In *Wright vs. Hamilton,*it was further *held,*that although the statute would operate as a bar, it would not begin to run until a demand was made; and this branch of the de-fence resolves itself into the question, whether the complainants did demand payment from Sims. That, I think, is a necessary inference, from the facts stated in the bill. To what else could the observation of Sims to the complainant, Clinton, when he was about to leave the State, that he would return next fall and settle with him, apply? Is it probable, nay possible, that the complainants, knowing that Sims was about to leave the State, would suffer him to depart without calling on him to account, if not with the expectation of being paid, at least with a view to an adjustment of their accounts ? Would the complainant, Clinton, borrow money from him to be brought into the account on their 'final settlement, knowing that Sims was largely indebted to him, without asking it as a payment ? I think not. This is not all; it is well *known that*a great portion of the business of the court was in the hands of the complainants. The sheriff is bound to account, at every term at least, for the moneys *55he may have collected during the preceding vacation, and if he does not, he is subject to summary proceeding by rule, and it is no reproach to the profession that they are not so indifferent to their own interest as to suffer the occasion to pass, without calling on the sheriff for an account and payment of the moneys received to their use — and it is well known that this is rarely, if ever, omitted. Now, it will be remembered that this demand is for moneys collected by Sims during his first term of office, and running through that whole period, and it would be doing the complainants great injustice to suppose that they had, during all that time, and the eight years which followed, including his second term of office, neglected to ask an account from him, and request the payment of the money. I think, too, that the lapse of time, and the accompanying circumstances, will well warrant the presumption of payment. Twenty years would, of itself, be sufficient, and accompanied with circumstances, there is no rule which limits the presumption to time — it may be presumed from a single fact without reference to time. The giving of a promissory note authorizes the presumption that all open accounts between the parties were settled, and slight presumptions gain strength in proportion to the length of time. Now, the bill states that the sums now demanded were received between the time of Sims’s going into office in 1825, and his going out in 1829, so that a period of from fourteen to nineteen years must have elapsed before the filing of this bill, and no one will be persuaded to believe that repeated settlements, partially, if not finally, were not made between him and the complainants, and it would be difficult to account why these demands, the evidences of which were always in the power of the complainants, were not brought into the account; and when it is recollected that they suffered Sims to leave the State without accounting, and neglected, for any thing that appears, to give notice to the defendants, the presumption arising from lapse of time acquires irresistible force. From what I have said in the case of *Mc-Kenna*and *George,*tried during this term, there can be no question that the representatives of the deceased co-obligors ought to have been made parties — their estates are liable to contribute equally with the defendants, if any thing be due the complainants, and equal and ample justice could not have been done without making their representatives parties.

It is ordered and decreed, that the complainants’s bill be dismissed with costs.

*56The complainants appealed, on the grounds,

1. Because their right of recovery was not barred by the statute of limitations.

*2.*Because the lapse of time, and other circumstances, were not sufficient to raise the presumption of payment.

*J. Williams,*for the motion.

*Wright 6f McMullan,*contra.

*Per Curiam.*

We concur in the decree of the Circuit Court. It is, *therefore,*affirmed, and the appeal dismissed.