Debt upon an administration bond, which, being informal, was declared upon as a bond at common law. The breach assigned was that James Ross, the principal in the bond declared on, in which the defendant was a surety, had not accounted with Richmond Bailey, the relator, the amount to which he was entitled as the next of kin of the intestate. Pleas: conditions performed and not broken, and payment.
Upon the trial it appeared that the relator was an infant of tender years when the bond was executed, and came of age only a year or two before the commencement of this suit. But, notwithstanding this, the defendant insisted that, by virtue of sections 13 and 14, chapter 65, Revised Statutes, or by virtue of the common law, there was a presumption of a performance or payment of the bond by the principal obligor, and, therefore, the action could not be sustained, and this, especially, because the bond was only a common-law bond. The plaintiff contended that the infancy of the relator prevented the presumption from arising either by the common law or by virtue of the statute, if, indeed, the statute applied to such a case at all, which he denied.
Verdict for plaintiff, and from the judgment thereon the defendant appealed. In the opinion of his Honor who tried the cause there is no error. The action is on a bond given by James Ross, as administrator of Sherod Bailey, to which the defendant was one of the sureties, and is dated 13 April, 1826. The bond, being defective as an official bond, the declaration is at common law. The writ was issued 11 July, 1848, and the defendant, under the proper plea, relied upon the lapse of time as proof of payment. At the date of the bond the person interested was an infant of tender years, and brought the action within two years after attaining his majority. It is a very general presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until the contrary is established by evidence, either direct or presumptive. Thus, a debt once proved to have existed is presumed to continue, unless payment or some other discharge be proved or established from circumstances. Jacksonv. Irwin, 2 Camp., 48. Among the presumptive proofs of payment of a bond is lapse of time. The courts of common law in England established the artificial presumption, when payment of a bond or other specialty was not demanded within 20 years, and there was no payment of interest within that time, or other circumstances to show that it was still in force, that payment ought to be presumed by a jury. Oswald v. Legh, 1 Tenn. 271. So continued the law in this State until the act of 1826, ch. 28, was passed (Rev. Stat., ch. 65, sec. 13). By that act the time within which the presumption is limited to arise is cut down to ten years. Forbearance to sue for such a length of time will raise the presumption of payment.
It is, however, but a presumption, and may be answered by (312) proof of other circumstances explaining satisfactorily why an earlier demand has not been made, as in Newman v. Newman, 1 Star., N. Pr. Cases, 101, when the obligee had resided abroad for the last twenty years. 2 Phil. Ev., 171. In this case the presumption of payment could not arise. The person for whose benefit the bond was given and for whose interest the action is brought was at its execution an infant, and continued so until within two years before the action was brought. The presumption under which the defendant seeks to protect himself is that he has paid the money. The condition of the bond bound him to pay the money when the infant came of age; he did not do so until within ten years before the action was brought. The presumption of payment did not arise in this case.
PER CURIAM. No error. *Page 214
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